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From Antitrust Law Daily, February 24, 2015

 LCD panel purchasers fail to connect IBM to price fixing conspiracy

By Greg Hammond, J.D.

In a consolidated class action lawsuit brought by direct and indirect purchasers of thin-film transistor liquid crystal display (TFT-LCD) panels against numerous manufacturers and affiliated entities for allegedly participating in a price fixing conspiracy, partial summary judgment was properly granted as to IBM Corp.’s supposed involvement in the alleged price fixing conspiracy, the federal district court in San Francisco has determined. Reconsideration of the order partially granting summary judgment was therefore denied (In re TFT-LCD (Flat Panel) Antitrust Litigation, February 23, 2015, Illston, S.).

In September 2014, the court partially granted summary judgment in favor of defendant TFT-LCD panel manufacturers and affiliated entities with regard to an alleged conspiracy to fix prices of TFT-LCD panels with IBM U.S. and IBM Japan, Ltd. The defendants argued that the plaintiffs (1) provided no evidence that a supposed recipient of various emails—an IBM employee—had any responsibility for the sale or pricing of LCD panels; and (2) even if some information about shipping quantities was exchanged between IBM and some competitors, the mere exchange of information was insufficient to support an inference of price fixing activity.

The court agreed, finding that because the IBM entities could have engaged in permissible competitive behavior, the burden shifted to the plaintiffs to show conspiratorial activity. However, the plaintiffs failed to meet their burden, as they did not make any distinction between the two IBM entities, but, instead, referred to both entities interchangeably as “IBM.” Consequently, the court could not determine whether either IBM U.S. or IBM Japan ever individually engaged in anticompetitive behavior.

In their motion for reconsideration of the order partially granting summary judgment as to IBM U.S. and IBM Japan, the plaintiffs alleged that that there was a manifest failure by the court to consider evidence regarding conspiratorial communications between IBM U.S. and Hitachi or Sharp concerning Dell during the 2001-2002 time frame. The court rejected this argument, finding that it specifically referenced the Dell-related bilateral communications in its previous order partially granting summary judgment. Further, the court noted that nothing in the plaintiffs’ summary judgment opposition or the reconsideration motion addressed how the evidence relating to Dell raised a triable issue of fact concerning the conspiracy alleged in plaintiffs’ complaints or claims for damages. The court therefore concluded that it did not err in partially granting summary judgment with regard to IBM and denied the motion for reconsideration.

The case is No. M 07-1827 SI.

Attorneys: Melissa Willett, Philip J. Iovieno, Christopher V. Fenlon, and Stuart H. Singer (Boies, Schiller & Flexner) for The AASI Creditor Liquidating Trust, Tech Data Corp., Interbond Corporation of America, MetroPCS Wireless Inc., Compucom Systems Inc., and Office Depot, Inc. David Bedford Esau (Carlton Fields Jorden Burt) for Tracfone Wireless, Inc. Christopher Alan Nedeau (Nossaman LLP) for AU Optronics Corp.

Companies: IBM Corp.; IBM Japan, Ltd.; AU Optronics Corp.

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