Antitrust Law Daily Wrap Up, ANTITRUST—NDCal: LCD Panel Purchasers Alleging Price Fixing Conspiracy Show Participation by Some Nonparties, but Not by Others., (Nov 8, 2012)

By E. Darius Sturmer, J.D.

In a consolidated class action lawsuit brought by direct and indirect purchasers of thin-film transistor liquid crystal display panels against numerous manufacturers and affiliated entities for allegedly participating in a price fixing conspiracy, the defendants were entitled to partial summary judgment as to claims arising out of the plaintiffs’ purchases from several alleged nonparty co-conspirators, the federal district court in San Francisco has ruled (In re: TFT-LCD (Flat Panel) Antitrust Litigation, November 6, 2012, Illston, S.). However, the evidence presented by the purchasers sufficed to raise a triable issue of fact regarding several other nonparties’ participation in the conspiracy. Therefore, the defendants’ joint motion for partial summary judgment was granted in part and denied in part.

There was admissible evidence from which a jury could conclude that Mitsubishi Electric Corporation, Fujitsu Limited, Fujitsu Display Technologies Corporation, IPS Alpha Technology Limited, and Panasonic Corporation participated in the price fixing conspiracy, the court determined. This evidence included: documents and deposition testimony showing that a Mitsubishi representative and IPS Alpha’s president attended price fixing meetings; notes from another such meeting, stating that some Japanese companies—such as Fujitsu, Toshiba, and Mitsubishi—would “subtly cooperate”; and materials showing that representatives from Panasonic, which was formerly Mitsubishi Electric, exchanged prices and other proprietary LCD panel information with the defendants.

In addition, the court found that LG Electronics (Korea) could have participated in the conspiracy—even after it stopped making LCD panels—through its joint venture, LG Display. LG Display, which started making the panels after LG Electronics had ceased to do so, is a defendant in the case. The plaintiffs’ evidence that LG Electronics had control over LG Display’s corporate decision making sufficed to create a genuine issue of fact as to LG Electronics’ involvement in the alleged misconduct.

The plaintiffs’ failure to submit any evidence of participation by four other entities—S-LCD Corporation, LG Electronics U.S.A., Inc., Innolux Corporation, and TPO Displays Corporation—doomed claims based on purchases from them, the court added. The court rejected an argument by the purchasers that they could recover for their purchases from the companies under the “ownership or control” exception to the Illinois Brick doctrine, which bars indirect purchasers from seeking damages under federal antitrust law. Whether the plaintiffs could recover for their purchases from the companies under the “ownership or control” exception was a separate question from the issue presented by the instant motion, the court noted.

The case is No. M 07-1827 SI, MDL. No. 1827.

Mario Nunzio Alioto (Trump Alioto Trump & Prescott LLP) for Gina Cerda. Chet Alan Kronenberg (Simpson Thacher & Bartlett LLP) for LG Display Co., Ltd.

Cases: Antitrust CaliforniaNews