Antitrust Law Daily Wrap Up, ANTITRUST—NDCal: Pass-On Defense to LCD Price Fixing Claims Not Precluded by Florida Law, (Feb 11, 2013)

By E. Darius Sturmer, J.D.

Companies that purchased finished consumer electronics products containing thin-film transistor liquid crystal display (LCD) panels could not prevent panel manufacturers defending price fixing claims asserted under the Florida Unfair and Deceptive Trade Practices Act (FDUTPA) from raising a downstream pass-on defense, the federal district court in San Francisco has ruled (In re: TFT-LCD (Flat Panel) Antitrust Litigation, February 6, 2013, Illston, S.). The plaintiffs’ motion for partial summary judgment on the pleadings with respect to use of the defense was therefore denied.

There was no clear Florida case law precluding the pass-on defense under the FDUTPA, the court determined. The court rejected an argument by the plaintiffs that Florida case law measures damages under the FDUTPA solely at the time of the date of delivery and precludes consideration of any consequential effects of the violation in determining damages. The defendants’ argument that a precedential holding established that information regarding the extent to which plaintiffs passed on or absorbed an overcharge was “essential to establish the loss and actual damages elements” created a genuine issue of fact to be resolved.

The applicability of the consequential damages/lost profits cases, in other contexts was unclear, in the court’s view. Florida courts have not addressed this issue or how “loss” or “actual damages” would be calculated in the context of price-fixing cases under the FDUTPA, the court noted.

The litigation is No. M 07-1827 SI. The order relates to cases C 11-5765 SI, C 11-2225 SI, and C 11-3763 SI within that litigation.

Companies: Tech Data Corp.; Tech Data Product Management, Inc.; AU Optronics Corp.; Office Depot, Inc.; Interbond Corp. of America;

Attorneys: Joseph M. Alioto, Sr. (Alioto Law Firm) for indirect purchaser plaintiffs. John C. McGuire (Sedgwick, Detert, Moran & Arnold) for AU Optronics Corp.

Cases: Antitrust CaliforniaNews