Antitrust Law Daily DuPont denied immediate appeal in Home Depot’s titanium dioxide price fixing suit
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Friday, November 22, 2019

DuPont denied immediate appeal in Home Depot’s titanium dioxide price fixing suit

By Jeffrey May, J.D.

Dispute centers on summary judgment standard for conspiracy claim that is based on circumstantial evidence, "where the market is an oligopoly and the alleged scheme is plausible."

In an antitrust action brought by retailer Home Depot U.S.A., Inc. seeking to recover overpayments for paint and other architectural coverings as a result of an alleged price fixing conspiracy involving the major suppliers of titanium dioxide, a decision denying the defendants’ motion for summary judgment was not certified for interlocutory appeal. Defendants E.I. du Pont de Nemours and Co. and Cristal USA, Inc. sought immediate review of the following issue: "What is the appropriate standard by which courts should assess evidence at summary judgment on a §1 Sherman Act conspiracy claim that is based on circumstantial evidence, where the market is an oligopoly and the alleged scheme is plausible." The federal district court in San Jose, California, noted that this was not the question that the defendants presented in their summary judgment motion and suggested that the moving parties were taking issue with how the court applied settled precedent to the facts of the case in deciding the motion. Even assuming that the moving parties had extracted a pure legal question from the summary judgment order, they did not identify a controlling question of law, as to which reasonable jurists could differ, and immediate appeal would materially advance the ultimate termination of the litigation (Home Depot USA, Inc. v. E.I. DuPont De Nemours & Co., November 20, 2019, Freeman, B.).

Home Depot’s action is one of several antitrust cases filed throughout the country based on the alleged price fixing conspiracy. Summary judgments in these cases have resulted in opposite rulings in courts in the Third and Fourth Circuits. The defendants moved early for summary judgment in the Home Depot case after the Third Circuit upheld summary judgment in favor of the defendants (Valspar v. E.I. Du Pont de Nemours and Co., 873 F.3d 185 (3d Cir. 2017)). In August, the federal district court in San Jose rejected the Third Circuit decision, ruling that the Ninth Circuit standards for summary judgment in antitrust cases are less onerous than those in the Third Circuit, which have been characterized as requiring a "smoking gun." The moving defendants sought interlocutory review.

In denying the motion, the court explained that the Ninth Circuit has a well-developed body of case law, addressing the legal standards applicable to motions for summary judgment in antitrust cases. The lack of a case addressing the precise fact pattern presented in the Home Depot case did not create a novel issue.

Moreover, an immediate appeal would not materially advance the ultimate termination of the litigation. If the Ninth Circuit were to articulate a summary judgment standard different from the one applied by the district court, then the case would likely be remanded so that the court could apply the correct legal standard. If the Ninth Circuit were to decide that the Valspar standard applied, the district court would have to make an independent determination on the facts presented by the parties in this case. It was far from certain that moving parties would prevail on summary judgment in the district court even under the Valspar standard, the court stated.

The case is No. 5:16-cv-04865-BLF.

Attorneys: George Patrick Watson (Bryan Cave Leighton Paisner LLP) and Amanda Kay Seals (Bondurant, Mixson Elmore, LLP) for Home Depot USA, Inc. Beatrice B. Nguyen (Crowell & Moring LLP), Paul Edward Coggins (Locke Lord LLP) and Shari Ross Lahlou (Dechert LLP) for E.I. DuPont De Nemours & Co. Richard A. Ripley (Ruyak Cherian LLP) for Millennium Inorganic Chemicals, Inc.

Companies: Home Depot USA, Inc.; E.I. DuPont De Nemours & Co.;xx Cristal USA, Inc.

MainStory: TopStory Antitrust CaliforniaNews

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