Antitrust Law Daily Wrap Up, ANTITRUST NEWS: Titanium dioxide manufacturers attempt to ditch price fixing claims, (Nov 19, 2014)

By Greg Hammond, J.D.

Four manufacturers of titanium dioxide have, for a second time, moved to dismiss indirect purchasers’ antitrust claims, alleging that the manufacturers engaged in a conspiracy to fix prices of titanium dioxide, in violation of the Sherman Act. The federal district court in San Jose dismissed the plaintiffs’ first amended complaint in September 2014, and the manufacturers are now seeking to dismiss the second amended complaint (Los Gatos Mercantile, Inc. v. E.I. Du Pont De Nemours and Co., Case No. 5:13-cv-01180-BLF).

E.I. Du Pont De Nemours and Co., Huntsman International, LLC, Kronos Worldwide, Inc., and Cristal USA Inc. manufacture and sell titanium dioxide, a chemical that is used as an ingredient in various products, including paint, paper, plastic, inks, pharmaceutical coatings, toothpaste, sunscreen, cosmetics, food, rubber, and ceramic. Similar to direct purchaser claims, which were previously settled, the indirect purchaser plaintiffs, consisting of seven paint retailers, allege that the manufacturers engaged in a titanium dioxide price fixing conspiracy.

In their motion to dismiss, the manufacturers allege that the plaintiffs lack constitutional and antitrust standing to bring their claims. Specifically, they allege that the indirect purchasers lack Article III standing to assert their antitrust claims because they failed to allege an injury that is traceable to the manufacturers’ acts. In addition, the manufacturers assert that the purported injuries the indirect purchasers claim to have suffered are so remote and attenuated from the manufacturers’ alleged conduct, that there is no sufficient causal link to establish antitrust standing under either federal or state antitrust law. The manufacturers also claim that the indirect purchasers lack standing to pursue injunctive and equitable relief, because those claims suffer from the same defects as their state antitrust claims.

Lastly, the manufacturers argue that the court should strike the indirect purchasers’ class allegations because the named plaintiffs and their counsel do not satisfy the adequacy requirement of Rule 23. Specifically, the manufacturers claim that that the plaintiffs’ counsel represents both the putative consumer and merchant classes, which have antagonistic interests in this case.

Companies: E.I. Du Pont De Nemours and Co.; Huntsman International, LLC; Kronos Worldwide, Inc.; Cristal USA Inc.; Los Gatos Mercantile, Inc.

News: Antitrust CaliforniaNews