Antitrust Law Daily Wrap Up, ANTITRUST NEWS: Home Depot alleges titanium dioxide price fixing conspiracy, (Aug 24, 2016)

By Michael Menzhuber, J.D., LL.M.

Home Depot U.S.A. has filed a complaint in the federal district court in San Francisco that alleges a price fixing conspiracy involving the manufacturers of titanium dioxide (Home Depot U.S.A., Inc. v. E.I. DuPont De Nemours and Company, August 23, 2016).

According to Home Depot’s complaint, E.I. DuPont De Nemours and Co., Huntsman International, LLC, Kronos Worldwide, Inc., Millennium Inorganic Chemicals, Inc., (collectively, "defendants") and their co-conspirators colluded to raise the price of titanium dioxide, a chemical primarily used as a white pigment in paints and coatings. Because of their collusive conduct, Home Depot paid supra-competitive prices for such products and, due to the competitive market in which it operates, was unable to fully pass along those overcharges.

By virtue of its purchases, Home Depot had been a member of the putative indirect purchase class in Jan Harrison et al. v. E.I. DuPont De Nemours and Company, et al., Case No. 5:13-cv-001180-BLF. However, the third amended complaint in this action, filed September 29, 2015, narrowed the class definition to exclude purchases for resale. Because the bulk of Home Depot’s purchases no longer fell within the indirect class, Home Depot filed this suit to maintain its claims for recovery as to all of its purchases, regardless of whether they were for resale.

The complaint describes a history of price increases in the industry from March 2002 through November 2011, despite declines in demand and increases in capacity. The complaint alleges that the defendants and their co-conspirators intentionally conspired and agreed to manipulate, fix, raise, maintain, and stabilize the prices at which titanium dioxide is sold in the United States. It further alleges that the conspiracy was initiated, developed, maintained, and facilitated by a course of anticompetitive conduct which included information exchanges, verbal and tacit agreements, price signaling, secret meetings, and communications between the defendants for the purpose of artificially inflating the price of titanium dioxide and allocating shares of the United States market.

Home Depot asserts claims for violation of California’s Cartwright Act and for injunctive and equitable relief. Home Depot also asserts that it has standing to bring its antitrust claim and that its claims are not barred by the statute of limitations.

The action seeks a judgment that the defendants’ conduct was a violation of the state and federal antitrust laws, damages and treble damages, a permanent injunction enjoining the continuance of the alleged conspiracy, pre- and post-judgment interest, costs of the suit, attorney fees, and any other just and proper relief.

The case is No. 3:16-cv-04865.

Attorneys: G. Patrick Watson, Lindsay S. Johnson, and Thomas S. Lee (Bryan Cave LLP) for Home Depot U.S.A.

Companies: E.I. DuPont De Nemours and Company; Home Depot U.S.A.; Huntsman International, LLC; Kronos Worldwide, Inc.; Millennium Inorganic Chemicals, Inc.

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