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From Antitrust Law Daily, July 9, 2015

Class certification granted against remaining defendant Mitsubishi in CRT price fixing action

By Linda O’Brien, J.D., LL.M.

In multidistrict class action litigation by electronic products manufacturers against manufacturers of cathode ray tubes (CRTs) for an allegedly engaging in an international price fixing conspiracy, the plaintiffs established the requirements of ascertainability, commonality, adequacy of representation, and predominance for class certification as against the remaining defendant manufacturer, the federal district court in San Francisco has ruled. Thus, their motion for class certification was granted (In re Cathode Ray Tube (CRT) Antitrust Litigation, July 8, 2015, Conti S.).

Consumer electronics companies, known as direct purchaser plaintiffs (DPPs), filed a multidistrict class action against numerous CRT manufacturers for engaging in a worldwide conspiracy to fix prices in the CRT market, which are components used in finished products produced by the DPPs. CRTs were produced as color picture tubes (CPTs), often used in televisions, and color display tubes (CDTs) for use in computer monitors. Most of the defendant manufacturers settled the allegations. In June 2015, the court granted class certification and preliminary approval to a proposed settlement of over $9.7 million to resolve price fixing claims against Thomson SA, Thomson Consumer Electronics, and Technologies Displays Americas LLC, leaving Mitsubishi as the only remaining defendant.

Before the court was the DPP’s motion for class certification as against Mitsubishi. The DPPs proposed to certify a class defined as all persons and entities that directly purchased a CRT product in the United States from the defendant or any subsidiary or affiliate, between March 1, 1995 and November 25, 2007.

Ascertainability. The court found that the class could be ascertained by reference to objective criteria. Mitsubishi’s contention that the proposed class did not adequately distinguish between those who would be in the class and those who would be excluded was rejected. The DPPs limited the scope of the class to those who, within a specific date and location, purchased a CRT product from a defined group. Potential class members could easily determine if they fell within the class by review of their sales records and invoices. Mitsubishi’s argument that the proposed class failed to exclude potential class members who lacked standing was also rejected. There was ample evidence to support the limited theory of standing permitted to the DPPs and the mere possibility of including a member in the class who ultimately was found to lack standing did not prevent class certification.

Commonality. Federal Rule of Civil Procedure 23(a) requires that there be “questions of law or fact common to the class.” The court noted that the DPPs’ antitrust claim depends on the common contention that the defendants’ price fixing conspiracy increased the prices of all CRT products, including CPTs and CDTs. Mitsubishi’s argument that CPTs and CDTs were discussed in separate meetings so there were no common questions relating to the existence of a conspiracy was rejected. Mitsubishi conceded that there were joint meetings prior to 2000. Further, after the CPT and CDT meetings were separated, they involved the same companies and were attended by mostly the same people. Economic analysis showed that CPTs and CDTs were not so dissimilar as to impede the common resolution of the DPPs’ claims, even if different meetings and products were involved.

Adequacy of representation. The court also found that the interests of the named DPPs did not conflict with those of absent class members and counsel for the putative class was skilled and experienced. In rejecting Mitsubishi’s argument that the class representative failed to make a showing of standing, the court noted that the DPPs cited extensive exhibits wherein the multiple named plaintiffs alleged purchasing CRTs or finished products from an entity owned or controlled by or directly from one of the alleged co-conspirators.

Predominance. The DPPs could establish for each of the three prongs—conspiracy, impact, and damages — generalized proof was applicable to the class as a whole. To show the defendants participated in a global price fixing conspiracy, the evidence would be the same for each class member, including the number and frequency of meetings and documents and testimony relating to employees’ efforts to price fix. The DPPs also established a reasonable method for determining, on a class wide basis, the alleged antitrust activity’s impact on class members: contemporaneous evidence of class wide impact, statistical evidence of class wide harm, and class wide impact based on the structure of the CRT market.

Although there might be differences between the products and methodology required to prove specific losses due to the impact of the conspiracy on each product, the DPPs presented evidence showing that nearly all of the CRT was impacted and the conspirators were effective in enforcing the conspiratorial agreements. Given the magnitude of the conspiracy, the distinction between the impact on the submarkets of CPTs and CDTs did not create individualized issues at the methodology level to overcome the efficiency of addressing the two together, in the court’s view.

Finally, the DPPs sufficiently showed a methodology of establishing damages and the statistics for its damages model appeared to be sound. Through their economic expert, the DPPs presented a functioning model tailored to the facts of the case, using aggregate data to produce an efficient model that was based on available data and avoided the risk of using overly granular data sets that would have produced unreliable results, the court concluded.

The case is No. CV-07-5944-SC, MDL No. 1917.

Attorneys: R. Alexander Saveri (Saveri and Saveri Inc.) for Crago, Arch Electronics, Inc., Meijer, Inc., Meijer Distribution, Inc., Nathan Muchnick, Inc., and Princeton Display Technologies, Inc. Brent Caslin (Jenner & Block LLP) for Mitsubishi Electric Corp., and Mitsubishi Electric US, Inc. Kathy L. Osborn (Faegre Baker Daniels LLP) for Technicolor USA, Inc. Nathan Lane, III (Squire Sanders LLP) for Technologies Displays Americas LLC. Charles M. Malaise (Baker Botts LLP) for Koninklijke Philips NV.

Companies: Arch Electronics, Inc.; Meijer, Inc.; Meijer Distribution, Inc.; Nathan Muchnick, Inc.; Princeton Display Technologies, Inc.; Mitsubishi Electric Corp.; Mitsubishi Electric US, Inc.; Technicolor USA, Inc.; Technologies Displays Americas LLC; Koninklijke Philips NV

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