Antitrust Law Daily Wrap Up, TOP STORY—NDCal: Toshiba Not Entitled to Summary Judgment on Voting Machine Developer’s TFT-LCD Panel Price Fixing Claims, (Nov 9, 2012)

By Jeffrey May, J.D.

Price fixing claims can proceed against Toshiba Corporation—a manufacturer of thin-film transistor liquid crystal display (TFT-LCD) panels—under a theory of joint and several liability to recover for an alleged overcharge on a panel used in a voting machine developed by AutoMark Technical Systems LLC, the federal district court in San Francisco has decided (In re: TFT-LCD (Flat Panel) Antitrust Litigation, November 7, 2012, Illston, S.). Toshiba was not entitled to summary judgment against plaintiff ATS Claim, LLC on the ground that there was no evidence to demonstrate a genuine dispute that Toshiba conspired to fix prices of TFT-LCD panels purchased by ATS’s predecessor-in-interest that were manufactured by LG Display.

LG Display Company, another TFT-LCD panel maker, sold the panel for the voting machine to Ricoh Electronics. Ricoh had manufactured the voter terminals for AutoMark.

LG Display had pleaded guilty to participating in a global price fixing conspiracy at the time of the sale. TFT-LCD panel maker Sharp Corporation also admitted to involvement in the conspiracy, but only with respect to sales made to Dell, Inc., Apple, Inc., and Motorola Corporation. Both the LG Display entities and Sharp had been dismissed from the price fixing case by stipulation. Toshiba was the only remaining defendant, and it never admitted liability or any form of participation in the conspiracy.

The court rejected Toshiba's contention that summary judgment was warranted because the LG Display panels used in the voter terminals were outside the scope of any established or alleged overarching price fixing conspiracy. Although Toshiba was not collaterally estopped from denying its participation in the overarching conspiracy, its reliance on the lack of evidence linking Toshiba to the overarching conspiracy was unpersuasive.

Deposition testimony suggested that, although Ricoh primarily considered sourcing the panels from the LG Display entities and Sharp, it did not rule out other panel manufacturers, whose panels could have been substituted. Even if Ricoh had ruled out other panel manufacturers, this did not necessarily demonstrate that the panels were so different as to constitute a distinct market, the court explained. The plaintiff produced a price quote from LG Display that suggested the panels it purchased were standard 15" TFT-LCD panels.

Toshiba also argued that, because various federal and state governmental authorities had to extensively regulate, test, and certify electronic devices before they are used in elections, the TFT-LCD panels that Ricoh purchased from LG Display “occupied at least a unique niche in the marketplace, if not a market unto themselves.” However, any modifications to the panel that were made to bring them into compliance with government certification and testing standards occurred post-sale, and seemingly only with regard to the interface components, not the panels themselves, the court reasoned.

The case is No. C 09-1115 SI (MDL No. 1827).

David Paul Germaine (Vanek Vickers & Masini PC) for ATS Claim, LLC. John H. Chung (White & Case LLP) for Toshiba Corp.

MainStory: TopStory Antitrust CaliforniaNews