in re tft lcd flat panel antitrust free sample

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More than five years of litigation after reaching an initial agreement, Sony settled with HannStar for its role in a price-fixing scheme involving liquid crystal displays, as a California judge signed off Tuesday on the parties" agreement to dismiss the claim from multidistrict litigation.

Best Buy Co. will get about $2 million in fees after it won an antitrust suit alleging manufacturers fixed prices in the market for flat-screen liquid crystal display panels, slightly more than it initially won, according to a California federal court order Monday.

The Oregon Attorney General"s Office on Wednesday asked a California federal court to award it up to $4.8 million in costs and attorneys" fees from $21.5 million in deals the state struck with LG, Toshiba, Samsung, Sharp and others that settled its claims in multidistrict litigation over alleged price-fixing of liquid crystal display products.

The state of Oregon on Friday asked a California federal judge to approve a $21 million deal with Hitachi, Epson, LG, Sharp, Samsung, AU Optronics, Toshiba and others to end the state"s claims in multidistrict litigation over alleged price-fixing of liquid crystal display products.

Circuit City Stores Inc. and Proview Technology Inc. finalized settlement agreements Tuesday in their suits against AU Optronics Corp. and HannStar Display Corp., as part of multidistrict litigation over alleged price-fixing of liquid crystal display products.

Home Depot USA has reached a settlement in its suit against AU Optronics Corp., part of multidistrict litigation alleging a price-fixing plot involving liquid crystal display products, according to court documents filed with California"s Northern District on Wednesday.

Acer America Corp. on Friday resolved its antitrust suit against Toshiba Corp., Hitachi Ltd. and NEC Corp. that accused liquid crystal display makers of fixing prices, one day after Acer agreed to dismiss claims against LG Display Co. Ltd., according to documents filed in California federal court.

The judge overseeing long-running multidistrict litigation accusing liquid crystal display makers of price-fixing on Tuesday recommended sending suits filed by Office Depot Inc., MetroPCS Wireless Inc. and others back to their original courts for trial.

The trustee for Circuit City Stores Inc. agreed to dismiss his claims against Epson Imaging Devices Corp. in a liquid crystal display price-fixing multidistrict litigation on Tuesday, a day after Proview Technology Inc. stipulated dismissal of its claims against LG Display Co. Ltd. in the same case.

A California federal judge on Friday refused to halt the $1.1 billion settlement in a multidistrict litigation over price-fixing on liquid crystal displays while lender LFG National Capital LLC awaits final judgment in a separate suit seeking a $31.1 million loan repayment from the plaintiffs" attorney.

*837 Jason C. Murray, Joshua Courtney Stokes, Crowell & Moring LLP, Los Angeles, CA, Jeffrey H. Howard, Jerome A. Murphy, Sanya Sarich Kerksiek, Crowell & Moring LLP, Washington, DC, R. Bruce Holcomb, Adams Holcomb LLP, Washington, DC, for Plaintiff.

Christopher Alan Nedeau, Nossaman LLP, San Francisco, CA, Christopher B. Hockett, Davis Polk & Wardwell, Micah Galvin Block, Neal Alan Potischman, Samantha Harper Knox, Sandra D. West, Menlo Park, CA, Gordon Pearson, Wilmer Cutler Pickering Hale and Dorr LLP, Michael Robert Lazerwitz, Cleary Gottlieb Steen & Hamilton, Derek Ludwin, Robert D. Wick, Covington & Burling LLP, Washington, DC, Patrick J. Ahern, Baker & McKenzie, Chicago, IL, Jeffrey Michael Davidson, Simon J. Frankel, Timothy C. Hester, Covington & Burling LLP, Anne Benton Kaldor, Erin Alysa Smart, Kristen A. Palumbo, Bingham McCutchen LLP, Stephen P. Freccero, Morrison & Foerster LLP, San Francisco, CA, John H. Chung, White & Case LLP, New York, NY, for Defendants.

On November 3, 2010, the Court held a hearing on defendants" motion to dismiss Motorola"s second amended complaint. For the reasons set forth below, the motion is DENIED.

Plaintiff Motorola, Inc. ("Motorola") is a technology company that is incorporated in Delaware with its principal place of business in Schaumburg, Illinois. Second Amended Complaint ("SAC") ¶ 24. Motorola is a leading manufacturer of mobile wireless devices. Id. From January 1, 1996 until December 11, 2006 (the "Relevant Period"), Motorola manufactured products that incorporated liquid crystal *838 display panels ("LCD Panels") for sale in the United States market and abroad. Id. ¶¶ 2, 26.

On October 20, 2009, Motorola filed a complaint in the Northern District of Illinois against numerous domestic and foreign defendants alleging a global price-fixing conspiracy by suppliers of LCD Panels. On December 8, 2009, the case was transferred to this district by order of the Judicial Panel on Multidistrict Litigation and, pursuant to this Court"s July 3, 2007 Pretrial Order # 1, was deemed related to MDL No. 1827 (M 07-1827). Motorola filed an amended complaint on January 29, 2010.

On February 23, 2010, defendants filed a joint motion to dismiss the amended complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Among other things, defendants argued that the Court lacked subject matter jurisdiction under the Foreign Trade Antitrust Improvements Act ("FTAIA") to the extent that Motorola"s antitrust claims were based on injury suffered outside of the United States. On June 28, 2010, the Court granted defendants" motion to dismiss under the FTAIA. June 28, 2010 Order at 10, 2010 WL 2610641.

On July 23, 2010, Motorola filed a second amended complaint ("SAC"), which included a number of new allegations. The SAC alleges that defendants and their co-conspirators "conspired with the purpose and effect of fixing, raising, stabilizing, and maintaining prices for LCD Panels." Id. ¶ 2. Motorola alleges that senior executives of the defendants instructed subordinates in the United States to communicate with employees of their competitors to exchange pricing and other competitive information to be used in fixing prices for LCD Panels sold to U.S. companies. Id. Motorola alleges that "[a]t least seven LCD Panel manufacturers have admitted in criminal proceedings to participating in this conspiracy and conducting illegal price-fixing operations in the United States," including defendants LG Display Co. Ltd., Sharp Corporation, Chunghwa Picture Tubes, Ltd., Epson Imaging Devices Corporation, Chi Mei Optoelectronics Corporation and HannStar Display Corporation. Id. ¶ 7. Motorola further alleges that defendants Sharp and Epson specifically identified Motorola as a customer which was overcharged for LCD Panels. Id. ¶ 8.

Motorola alleges that it was an intended victim of the price-fixing conspiracy and that the conspiracy was carried out, in part, in the United States. Motorola alleges that "[d]efendants and their co-conspirators, using their U.S. affiliates, salespeople, and contacts entered into supply agreements with Motorola in Illinois to sell Motorola LCD Panels at unlawfully inflated prices." Id. ¶ 4. "During and after the [Relevant Period], procurement teams at Motorola based in the U.S. negotiated the prices, conditions, and quantities that governed all Motorola purchases of LCD Panels around the world for inclusion in Motorola devices." Id. ¶ 129. Motorola alleges that its U.S. procurement teams negotiated each LCD Panel purchase with defendants through a process that involved developing requests and preliminary specifications in collaboration with U.S. representatives for defendants and the final negotiation of the terms of purchase for LCD Panels. Id. ¶ 130. Motorola alleges that the prices set through this domestic negotiation process "directly and immediately impacted Motorola"s business plans, including its most basic business choices involving the production, pricing, and sales of its own products." Id. ¶ 132. After the price for LCD Panels was set, Motorola"s supply chain organization (also based in Illinois) used an automatic scheduling process to determine the quantity requirements for it and its subsidiaries. *839 Id. ¶ 133. This process was entirely directed by Motorola from the U.S., and "[t]he foreign affiliates issued purchase orders at the price and quantity determined by Motorola in the United States." Id.

Motorola seeks treble damages and injunctive relief under Section 1 of the Sherman Act. Motorola also seeks relief under the antitrust laws of Illinois, the state in which it maintains its principal place of business. Finally, Motorola asserts individual claims for breach of contract and unjust enrichment against Sharp, Epson, Toshiba, Samsung and AU Optronics.

Federal Rule of Civil Procedure 12(b)(1) allows a party to challenge a federal court"s jurisdiction over the subject matter of the complaint. As the party invoking the jurisdiction of the federal court, the plaintiff bears the burden of establishing that the court has the requisite subject matter jurisdiction to grant the relief requested. SeeKokkonen v. Guardian Life Ins. Co. of America, Thornhill Publishing Co., Inc. v. General Tel. & Elecs. Corp., SeeMiranda v. Reno, SeeRoberts v. Corrothers,

Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, Ashcroft v. Iqbal, ___ U.S. ___, Twombly, 550 U.S. at 555, 570,

In deciding whether the plaintiff has stated a claim upon which relief can be granted, the court must assume that the plaintiffs allegations are true and must draw all reasonable inferences in the plaintiff"s favor. SeeUsher v. City of Los Angeles, In re Gilead Sciences Sec. Litig.,

If the court dismisses the complaint, it must then decide whether to grant leave to amend. The Ninth Circuit has "repeatedly held that a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith,

Defendants argue that the Court lacks subject matter jurisdiction over certain of Motorola"s federal antitrust claims under the Foreign Trade Antitrust Improvements Act, 15 U.S.C. § 6a ("FTAIA"), which amends the Sherman Act and "excludes from [its] reach much anti-competitive conduct that causes only foreign injury." F. Hoffmann-La Roche, Ltd. v. Empagran S.A. (Empagran I),

The FTAIA establishes a general rule that the Sherman Act "shall not apply to conduct involving trade or commerce (other than import trade or import commerce) with foreign nations." 15 U.S.C. § 6a. The FTAIA then "provides an exception to this general rule, making the Sherman Act applicable if foreign conduct `(1) has a `direct, substantial, and reasonably foreseeable effect" on domestic commerce, and (2) `such effect gives rise to a [Sherman Act] claim.""" In re Dynamic Random Access Memory (DRAM) Antitrust Litig., Empagran I and 15 U.S.C. § 6a). This is known as the "domestic injury exception" of the FTAIA. Id. The Supreme Court has stated:

This technical language initially lays down a general rule placing all (nonimport) activity involving foreign commerce outside the Sherman Act"s reach. It then brings such conduct back within the Sherman Act"s reach provided that the conduct both (1) sufficiently affects American commerce, i.e., it has a "direct, substantial, and reasonably foreseeable effect" on American domestic, import or (certain) export commerce, and (2) has an effect of a kind that antitrust law considers harmful, i.e., the "effect" must "giv[e] rise to a [Sherman Act] claim."

Defendants argue that — as to any purchase that occurred outside the United States — Motorola has not alleged sufficient facts to establish that its foreign injury and the injury of its foreign affiliates (paying higher prices abroad) was proximately caused by any domestic effect of the alleged conspiracy. Motion at 20-23. Defendants argue that it is insufficient to allege that Motorola "directed that purchases be made abroad by its foreign affiliates and third-party EMS providers." Id. at 21. As a result, defendants contend that Motorola has failed to allege sufficient facts to bring its foreign antitrust claims within the domestic injury exception to the FTAIA.

Empagran I is the leading case on the domestic injury exception. Empagran I, the plaintiffs filed a class action on behalf of *841 purchasers of vitamins and alleged that foreign and domestic vitamin manufacturers and distributors had conspired to fix the price of vitamin products in the United States and abroad. At issue were claims brought by foreign vitamin distributors who bought vitamins for delivery outside the United States. Id. at 159-60, Id. at 164, 175, Id. at 175,

On remand in Empagran S.A. v. F. Hoffmann-LaRoche, Ltd. (Empagran II), 417 F.3d 1267(D.C.Cir.2005), the plaintiffs relied on an "arbitrage" theory to argue that there was a causal link between the domestic effects of the conspiracy and the plaintiffs" foreign injury. Plaintiffs argued that "because vitamins are fungible and readily transportable, without an adverse domestic effect (i.e., higher prices in the United States), the sellers could not have maintained their international price-fixing arrangement and respondents would not have suffered their foreign injury." Id. at 1269. Rejecting this as a basis for the domestic injury exception, the D.C. Circuit held that such an arbitrage theory alleges, at best, a "but-for" relationship that fails to satisfy the proximate causation requirement of the FTAIA. Id. at 1270-71.

The Eighth Circuit addressed a similar argument in In re Monosodium Glutamate Antitrust Litigation, Id. at 536. The plaintiffs argued that their allegations satisfied the domestic injury exception to the FTAIA because the "United States market was included Within the scheme because the fungible nature and worldwide flow of these products made the domestic and foreign markets interconnected, such that super-competitive prices abroad could be sustained only by maintaining super-competitive prices in the United States." Id. at 536-37. Following Empagran II, the Eighth Circuit held that

The domestic effects of the price fixing scheme (increased U.S. prices) were not the direct cause of the appellants" injuries. Rather, it was the foreign effects of the price fixing scheme (increased prices abroad). Although United States prices may have been a necessary part of the appellees" plan, they were not significant enough to constitute the direct cause of the appellants" injuries, as they constituted merely one link in the causal chain. The theory proffered by the appellants therefore establishes at best only an indirect connection between the domestic prices and the prices paid by the appellants.

The Ninth Circuit addressed similar allegations in DRAM, DRAM, a British computer manufacturer, Centerprise, alleged that the defendant domestic and foreign manufacturers and sellers of dynamic random access memory ("DRAM") "engaged in a global conspiracy to fix DRAM prices, raising the price of DRAM to customers in both the United States and foreign countries." Id. at 984. Centerprise claimed that it satisfied the domestic injury exception to the FTAIA because the defendants could not have maintained the artificially inflated foreign prices without also fixing DRAM prices in the United States. Id. The Ninth Circuit held that such allegations *842 were insufficient to establish that the domestic effects "gave rise to" Center-prise"s foreign injury.

The defendants" conspiracy may have fixed prices in the United States and abroad, and maintaining higher U.S. prices might have been necessary to sustain higher prices globally, but Center-prise has not shown that the higher U.S. prices proximately caused its foreign injury of having to pay higher prices abroad. Other actors or forces may have affected the foreign prices. In particular, that the conspiracy had effects in the United States and abroad does not show that the effect in the United States, rather than the overall price-fixing conspiracy itself, proximately caused the effect abroad.

Id. at 988. The court also rejected allegations of "a direct correlation between the U.S. price and the prices abroad" and that "the Defendants" activities resulted in the U.S. prices directly setting the worldwide price." Id. at 989. The court ruled that "a direct correlation between prices does not establish a sufficient causal relationship" where the complaint does not "set forth a theory with any specificity of how this price-setting occurred or how it shows a direct causal relationship." See id. at 989-90.

Various district courts have similarly rejected the arbitrage theory of causation on the ground that it does not establish a proximate link between the domestic effects of the anticompetitive conduct and the foreign injury incurred. SeeIn re Rubber Chemicals Antitrust Litigation, Emerson Electric Co. v. Le Carbone Lorraine, S.A.,

This case is significantly different from the cases described above. Motorola is not a foreign company alleging injury based on wholly foreign transactions and conduct, unlike the plaintiffs in Empagran I. Motorola is a Delaware corporation with its principal place of business in Illinois and alleges a conspiracy between defendants that involved both domestic and foreign conduct. SAC ¶¶ 1-8, 24. Many of the comity concerns regarding interference with the sovereign authority of other nations identified in Empagran I are therefore less applicable. Perhaps more importantly, Motorola does not rely on an arbitrage theory to establish the domestic injury exception. Motorola instead alleges that an important domestic effect of the anticompetitive conspiracy was the setting of a global price for all LCD Panel purchases around the world. Id. ¶ 129. As the Court views these new allegations, the SAC alleges that the price and other terms of purchase were negotiated exclusively by Motorola"s procurement teams within the United States and applied worldwide, without regard to where the product was ultimately delivered. Id. ¶¶ 129-33. Moreover, Motorola"s foreign affiliates were bound by these negotiations and were not permitted to negotiate the price of LCD Panels nor alter the total quantity ordered. Id. ¶ 133. These allegations establish a concrete link between defendants" price-setting conduct (the collusion between the defendants to establish an artificially high price for LCD Panels), its domestic effect (the negotiations between Motorola and defendants that resulted in the setting of a global, anticompetitive price for all LCD Panels sold to Motorola) and the foreign *843 injury suffered by Motorola and its affiliates (payment of higher prices abroad). These allegations are far stronger than the arbitrage theory rejected in the cases above and cure the problem identified by the Ninth Circuit in DRAM by setting forth with specificity a direct causal relationship between the anticompetitive conduct, the domestic negotiations and Motorola"s foreign injury.

Defendants point to Sun Microsystems Inc. v. Hynix Semiconductor Inc. (Sun III), Sun III are not controlling here. The court in Sun III faced a subtly different question: whether proof that a domestic company and its foreign subsidiaries form a "single entity," by itself, can satisfy the domestic injury exception where the plaintiff cannot otherwise establish a proximate link between any domestic effect of the anticompetitive conduct and the foreign injury. Sun III, 608 F.Supp.2d at 1185-86. The court had previously ruled that the plaintiff failed to demonstrate that the higher prices set and established in the United States proximately caused the foreign entities associated with the plaintiffs to pay higher prices abroad. Sun Microsystems Inc. v. Hynix Semiconductor Inc. (Sun II), Sun II. As discussed above, the Court finds that Motorola has done so.[1]

The Court also disagrees with the Sun III court"s reading of the Ninth Circuit"s opinion in DRAM, 546 F.3d at 989-90. Citing DRAM, the Sun III court stated that "[b]oth this court and the Ninth Circuit have held that, to the extent plaintiff"s proximate causation theory rests on proof of a global procurement strategy, this is not a viable legal theory." Sun III, 608 F.Supp.2d at 1186. In this Court"s view, however, the holding in DRAM did not go so far. It is true that, in DRAM, the Ninth Circuit held that allegations of "a direct correlation between the U.S. price and the prices abroad" and that "the Defendants" activities resulted in the U.S. prices directly setting the worldwide price" were not sufficient for purposes of the domestic injury exception. DRAM, 546 F.3d at 989. However, the court based its holding on a determination that the plaintiff failed to "set forth a theory with any specificity of how this price-setting occurred or how it shows a direct causal relationship." Id. The court focused on particular allegations in the complaint that it found to be insufficient; the Ninth Circuit in DRAM stated:

Memory purchases are a 24 hour global business, dependent in large part on United States events. For example, Plaintiff and many Class members start *844 their days with communications to Defendants in Taiwan and Korea to understand what pricing is available for DRAM, and as the day goes on follow sales in the United States. Plaintiff and Class members were required to track the DRAM prices in dollars, which was the only available measure due to Defendants" sales and distribution practices, then work on dollar exchange rates in order to buy the DRAM at the best available price worldwide. The United States prices were the source of, and substantially affected the worldwide DRAM prices.

Id. at 990 n. 10. The court found that "[t]he significance of these assertions ... is not self-evident and Centerprise has not elaborated on how any of its asserted facts show that the higher U.S. DRAM prices proximately caused the excessive DRAM prices that Centerprise paid." Id. The allegations in this case offer far more detail than the allegations in DRAM. As discussed above, the SAC describes the method by which global prices were negotiated and set by Motorola"s procurement team in Illinois and the connection to Motorola"s foreign injury. According to the SAC, a single global price was effective worldwide, no matter where delivery of the product occurred. SAC ¶¶ 129-33. The U.S. prices therefore were not simply "the source of" the foreign prices; both the domestic and foreign prices were one and the same. These allegations address the problem identified in DRAM by alleging with specificity how the prices paid abroad were caused by the contractual terms negotiated inside the United States. Of course, whether this Court ultimately has jurisdiction over Motorola"s foreign injury claims will turn on whether Motorola can, in fact, prove such allegations. At this stage, however, Motorola has met its burden to allege facts that bring its claims within the domestic injury exception to the FTAIA. Accordingly, defendants" motion to dismiss the Sherman Act claim under the FTAIA is DENIED.[2]

Defendants also move to dismiss Motorola"s claim under the Illinois Antitrust Act, which has explicitly adopted the territorial limitations of the FTAIA. 740 Ill. Comp. Stat. 10/5(14). Section 10/5(14) of the Illinois Antitrust Act uses language that is essentially identical to the FTAIA and does not permit claims based on foreign injury unless the challenged conduct has a "direct, substantial, and reasonably foreseeable effect" on domestic commerce and such effect "gives rise to a claim" under the Illinois Antitrust Act. Id. Section 10/11 of the Illinois Antitrust Act states that "[w]hen the wording of this Act is identical or similar to that of a federal antitrust law, the courts of this State shall use the construction of the federal law by the federal courts as a guide in construing this Act." 740 Ill. Comp. Stat. 10/11.

Because the Court finds that the allegations in the Second Amended Complaint satisfy the domestic injury exception of the FTAIA, the Court also concludes that Motorola"s allegations satisfy the analogous provision of the Illinois Antitrust Act. Accordingly, defendants" motion to dismiss Motorola"s claims under the Illinois Antitrust Act is DENIED.

Defendants move to dismiss Motorola"s claims under the Illinois Antitrust Act and *845 for breach of contract and unjust enrichment because they do not comport with due process. Motion at 26-27. Defendants specifically argue that the SAC asserts state law claims on behalf of foreign affiliates of Motorola and other foreign manufacturers who do not allege that they purchased any relevant product in Illinois.

To determine whether the application of a particular state"s law comports with the Due Process Clause, the Court must examine "the contacts of the State, whose law [is to be] applied, with the parties and with the occurrence or transaction giving rise to the litigation." Allstate Ins. Co. v. Hague, Id. Such is not the case here. Each of the claims targeted by defendants is asserted under Illinois state law, the state in which Motorola alleges that it maintains its corporate headquarters and runs substantial operations. SAC ¶ 12. Motorola also alleges that "during and after the Conspiracy Period, Motorola purchased LCD Panels and LCD Products in Illinois" and that its procurement team "negotiated all prices, specifications, and quantities for all purchases of LCD Panels and LCD Products from Motorola offices in Illinois." Id. Motorola alleges that the negotiations by its Illinois-based procurement team "governed all Motorola purchases of LCD Panels around the world for inclusion in Motorola devices." Id. ¶ 129. These contacts establish significant ties between Illinois and the parties and claims in this litigation, and the application of Illinois law does not, therefore, violate due process.

Defendants" argument appears to turn on the way in which the SAC defines the term "Motorola," which includes certain foreign manufacturers and affiliates of Motorola that defendants maintain did not purchase any products in Illinois. Motion at 27; SAC ¶ 25. Contrary to defendants" argument, however, the SAC alleges clearly that "Motorola" (including" the foreign manufacturers and affiliates) purchased LCD Panels and LCD Products in Illinois. SAC ¶ 12. Reading the SAC as a whole, therefore, Motorola does allege that it and each the foreign entities on whose behalf it brings this action purchased product in Illinois. Moreover, even if certain of the foreign entities or manufacturers did not make such purchases, Motorola alleges that the terms of every purchase — including price and quantity — were negotiated by its procurement team in Motorola"s Illinois offices. By virtue of this Illinois-based negotiation process, even purchases that were consummated outside the United States by Motorola"s foreign affiliates have a clear and substantial tie to Illinois.

Defendants assert that Motorola"s state breach of contract claims are impermissibly vague because the SAC does not allege which contracts were supposedly breached or the terms of those contracts. Motion at 27-29. Defendants argue that "because the SAC does not specifically aver which contracts were allegedly breached, it is impossible to assess which transactions are the subject of the alleged breach of contract claims or what laws Defendants supposedly violated." Id. at 29. Motorola responds that its allegations identify Motorola"s general supply agreements with each of the defendants as well as individual purchase orders as the contracts at issue. Opposition at 40. Motorola argues that *846 these allegations are sufficient to put defendants on notice of its claims and that any further specificity is properly gained through discovery. Id. at 40-41.

Defendants contend — and Motorola does not dispute — that Illinois law applies to Motorola"s breach of contract claims. In Illinois, the elements of a claim for breach of contract are "(1) offer and acceptance, (2) consideration, (3) definite and certain terms, (4) performance by the plaintiff of all required conditions, (5) breach, and (6) damages." Village of South Elgin v. Waste Management of Illinois, Inc., 348 Ill.App.3d 929, 284 Ill. Dec. 868,

Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." The pleading must state a claim that is "plausible on its face" and that contains factual allegations that are "enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555, 570, Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit,

Motorola"s breach of contract claims against Sharp, Epson, Toshiba, Samsung and AU Optronics are set forth in claims Three, Five, Seven, Nine and Eleven of the SAC. These claims allege that Motorola and each defendant "entered into multiple contracts for the sale of LCD Panels and/or LCD Products by which [defendant] agreed to deliver LCD Panels and/or LCD Products to Motorola and Motorola agreed to pay [defendant] a price negotiated by Motorola and [defendant]." SAC ¶¶ 225, 236, 247, 258, 269. Motorola alleges that "[t]hese contracts between Motorola and [defendant] include purchase orders issued by Motorola to [defendant]." Id. Motorola further alleges that "[p]ursuant to each of these contracts, [defendant] agreed on behalf of it and its suppliers and subcontractors that all LCD Panels and/or LCD Products provided to Motorola would be produced, manufactured and supplied, and services rendered, in compliance with all applicable laws, rules, regulations, and standards." Id. ¶¶ 226, 237, 248, 259, 270. Motorola alleges that each defendant violated this provision and the covenant of good faith and fair dealing by agreeing to fix the price of LCD Panels sold to Motorola. Id. ¶¶ 228-29, 239-40, 250-51, 261-62, 272-73. Motorola further alleges that it performed all of its obligations under the contracts and that, as a result of defendants" breach of the contracts, Motorola suffered damages. Id. ¶¶ 230, 241, 252, 263, 274.

The SAC alleges sufficient facts to establish a claim for breach of contract under Illinois law. A plain reading of the SAC sets forth Motorola"s theory of relief in clear terms; that is, that each of the contracting defendants breached its contractual obligation to comply with the "applicable laws, rules, regulations, and standards" — along with the implied covenant of good faith and fair dealing — by engaging in a widespread price-fixing conspiracy. Motorola also alleges facts sufficient to establish each of the other elements of its claims, including offer and acceptance, consideration, Motorola"s performance and damages. For purposes of the pleading stage, these allegations are sufficient. Defendants correctly identify a number of ambiguities in Motorola"s claims, including the precise terms of the contracts at issue, which purchase orders are alleged to have been violated, and which "laws, rules, regulations, and standards" govern each of the contracts that Motorola is asserting. Motion at 28-29. Ambiguities of this type are properly explored in discovery.

Defendants argue that Motorola"s unjust enrichment claims must be dismissed because no unjust enrichment claim lies under Illinois law where, as here, there is a contract that allegedly governs the subject matter of the dispute. Motion at 30. Motorola argues that it is permitted to plead claims in the alternative. Opposition at 41 n. 22.

The Court agrees with Motorola. Federal Rule of Civil Procedure 8(d)(2) states that "[a] party may set out 2 or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones." Rule 8(d)(3) provides that "[a] party may state as many separate claims or defenses as it has, regardless of consistency." Rule 8(a) does not require a plaintiff explicitly to designate alternative claims "as long as it can be reasonably inferred that this is what [the plaintiff was] doing." Coleman v. Standard Life Ins. Co., United States ex rel. Atkins v. Reiten,

For the foregoing reasons, defendants" motion to dismiss the second amended complaint is DENIED. (No. M 07-1827 SI, Dkt. 1989; No. C 09-5840 SI, Dkt. 54, 57).

[1] In making this determination, the Court departs from the ruling in Sun II that, although the act of negotiating an inflated global price might be a "domestic effect" of the conspiracy, such effect cannot proximately cause the payment of higher prices abroad. Sun II, 534 F.Supp.2d at 1115. Based on the allegations in the SAC, Motorola has alleged facts that would establish that the domestically negotiated price was identical for purchases both inside and outside the United States. This is sufficient to establish the necessary proximate link between the domestic effects of the conspiracy and Motorola"s foreign injury.

[2] Because the Court finds that it has jurisdiction over Motorola"s antitrust causes of action under the FTAIA, it need not reach defendants" argument based on the Supremacy Clause that the Court does not have jurisdiction over Motorola"s state law causes of action.

Defendants in indirect purchaser price-fixing and market allocation cases in federal court frequently challenge plaintiffs" claims for lack of antitrust standing.

Relying on the U.S. Supreme Court decision in Associated General Contractors of California v. California State Council of Carpenters,[1] defendants assert that such plaintiffs" injuries are too remote from the defendants" unlawful conduct or are not the type of injury the antitrust laws were intended to prevent.

Since we last addressed this topic in a 2012 Law360 Associated General Contractors, or AGC, case should be applied to indirect purchaser state law claims and, if applied, how to do so.

This article reviews court decisions that may portend diminished application of AGC to state law and others that make clear that practitioners" grasp of what is required to plead antitrust injury under AGC in indirect purchaser cases remains essential.

AGC directed federal courts to apply a five-factor test to "evaluate the plaintiff"s harm, the alleged wrongdoing by the defendants, and the relationship between them to determine whether a plaintiff is a proper party to bring an antitrust claim."[3]

(1) the nature of the plaintiff"s alleged injury; that is, whether it was the type the antitrust laws were intended to forestall; (2) the directness of the injury; (3) the speculative measure of the harm; (4) the risk of duplicative recovery; and (5) the complexity in apportioning damages.[4]

Since the Supreme Court decision in Illinois Brick Co. v. Illinois, which limited indirect purchasers" claims for damages under federal antitrust law, indirect purchasers in federal court generally rely on state antitrust and consumer protection statutes, i.e., from states known as Illinois Brick repealers, when asserting damages claims.

While AGC is the product of federal law, antitrust injury or standing under state law is a matter of state law, and "[s]tates are free to expand antitrust standing under their laws beyond what federal law permits."[5] Thus, courts must first determine whether, and to what extent, AGC has any application under the state"s antitrust laws.[6]

We previously reported that the vast majority of courts have (1) questioned the broad application of AGC to indirect purchaser claims under state law, (2) held that the relevant state"s rules of antitrust standing should be applied, and (3) held that AGC should not be applied in the absence of a clear directive from those states" legislatures or highest courts.[7]

With few exceptions, courts have continued to follow these guidelines in form or substance.[8] Recently, however, courts have gone further and drawn bright-line rules regarding the inapplicability of AGC to state-law antitrust claims.

Courts have recently recognized that, given the Supreme Court"s decision inCalifornia v. ARC America Corp.,[9] any state legislative or court decision to repeal Illinois Brick fundamentally conflicts with the application of AGC to state-law antitrust claims. These courts have held that AGC should not apply in Illinois Brick repealer states, while others have held that if applied, AGC does not defeat antitrust injury in Illinois Brickrepealer states.

The most emphatic statement of this bright-line rule can be found in In re: Broiler Chicken Antitrust Litigation, a sprawling multidistrict litigation involving indirect purchaser classes from numerous states alleging that defendant producers of chicken meat conspired to fix prices.

The indirect purchaser plaintiffs alleged violations of state antitrust laws and defendants moved to dismiss for lack of antitrust standing. In analyzing whether AGC applied to these claims, the court reviewed decisions of the highest courts in four of theIllinois Brickrepealer states at issue in the case.

The court reasoned that AGC"s proximate cause analysis "borrows from Illinois Brick"s concern with the unwieldy nature of indirect purchaser damages suits" and that enactment of "Illinois Brick repealers work[s] to save indirect purchaser damages suits, even from application of the AGC factors."[11]

The court called out a statement by the Minnesota Supreme Court that: "[b]y expressly permitting indirect purchaser suits, our legislature has rejected the notion that Minnesota courts are not to be burdened with the complex apportionment inherent in those suits."[12]

The court further reasoned that harmonization statutes passed by some states (i.e., "laws that require a state"s courts to interpret the state"s antitrust statutes in harmony with federal law") are not a basis to apply the AGC factors because such statutes do "not prevent the courts in those states from recognizing that Illinois Brick repealers work to save the claims of true indirect purchasers, like the Indirect Plaintiffs in this case."[13]

A similar holding can be found in the U.S. District Court for the District of New Jersey matter, In re: Liquid Aluminum Sulfate Antitrust Litigation, in which indirect purchasers of liquid aluminum sulfate, or Alum, sued manufacturers of Alum for price-fixing under 33 states" antitrust and consumer protection laws.[14]

The court, relying on ARC America and without engaging in any state-by-state analysis of whether AGC should be applied, held that the indirect purchaser plaintiffs "have pled facts sufficient to support antitrust standing under each of the state-specific antitrust statutes."[15]

Courts that have applied AGC to state-law antitrust claims have recognized essentially the same bright-line rule, i.e., that application of AGC to state antitrust law should not preclude claims in repealer states.

The U.S. District Court for the Eastern District of Pennsylvania in the In re: Suboxone (Buprenorphine Hydrochloride And Naloxone) Antitrust Litigation rejected the defendants" claim that indirect purchasers of the drug suboxone lacked antitrust standing.

The court reasoned that in Illinois Brick repealer states, AGC"s directness of injury factor "must either carry significantly less weight or directness must be analyzed more generously than under federal law," as it "would be inconsistent for a state to allow indirect purchasers to bring antitrust claims, only for the courts to cursorily dismiss those claims on antitrust standing grounds simply because they have been brought by indirect purchasers."[16]

The court held that "even applying the AGC factors, the End Payors have standing to bring antitrust claims under the state laws that have passed Illinois Brick repealer statutes."[17] A similar analysis can be found in the U.S. District Court for the Northern District of California decision In re: Lithium Ion Batteries Antitrust Litigation.[18]

These decisions recognize the incongruity of applying federal antitrust standing rules that focus on the directness of injury to state laws enacted to protect indirect purchasers. While it remains to be seen whether these authorities have started a broader trend, they are positive news for indirect purchaser plaintiffs facing antitrust standing challenges in federal court.

The Northern District of California has frequently addressed whether AGC should be applied to California antitrust law. While an early decision appliedAGC to bar indirect purchaser claims under California law,[19] that decision was later rejected by other courts.[20] Since our last report, numerous cases within[21] and without[22] the Northern District of California have held that AGC should not be applied to California law.

In the In re: Capacitors Antitrust Litigation, for example, the Norther District of California refused to apply AGC to California law, rejecting defendants" argument that California"s legislature or highest court has "indicated that federal antitrust law should be followed in determining standing."[23]

The court also emphasized recent California Supreme Court pronouncements that federal antitrust law interpretations are instructive at most, and not conclusive, as well as the U.S. Court of Appeals for the Ninth Circuit"s recognition that it is no longer the law in California that "the interpretation of California"s antitrust statute [is] coextensive with the Sherman Act."[24]

Another recent AGC-related development pertaining to California"s antitrust laws is the recognition that so-called umbrella damages are not barred by California"s Cartwright Act and that indirect purchasers seeking such damages may have antitrust standing under California law, whether AGC is applied or not.

Umbrella damages may be claimed "when a group of conspirators sets the price of a product at an artificially high level, a price umbrella is created that spreads throughout the market," and "nonconspirator sellers uninvolved in the anticompetitive conduct correspondingly raise prices."[25]

In County of San Mateo v. CSL Limited, the plaintiff alleged that manufacturers of blood plasma products conspired to restrict product supply and caused inflated prices for those products sold both by defendants and by nondefendants not alleged to have participated in the conspiracy.[26]

On the defendants" motion for partial summary judgment, the court ruled that umbrella damages sought by an indirect purchaser several steps down the chain of distribution from the defendants are not too speculative under California"s Cartwright Act and, for the same reasons, are not too speculative under the criteria set out in AGC.[27] A similar recent holding can be found in the U.S. District Court for the Eastern District of Pennsylvania decision In re: Domestic Drywall Antitrust Litigation.[28]

Since our last report, courts have more broadly recognized "that AGC should [not] be applied to a repealer statute based solely upon a general harmonization provision therein."[29] For example, the court in Lithium Ion Batteriesrecognized that "simply because a state statute encourages reference to federal law does not impose a mandate on state courts to conform in fact to federal law."[30]

Nevertheless, as more courts have taken on the task of deciphering dozens of states" laws on antitrust standing, some have applied AGC based solely on a harmonization provision.[31]

While courts have developed bright-line rules precluding the application of AGC to antitrust claims premised on state law, others have applied some form of AGC to certain states" antitrust laws or have simply assumed, arguendo, that AGC applies. These cases shed light on what product and market characteristics should be addressed to plead or prove antitrust standing under AGC.

Where an allegedly price-fixed stand-alone product travels essentially unchanged through the chain of distribution to indirect purchaser plaintiffs, defendants" arguments that the indirect purchasers are participating in a separate market and have no standing, generally, have continued to be unavailing.[32]

​​​​​​One exception to this broader conclusion is the U.S. District Court for the Southern District of New York decision In re: Keurig Green Mountain Single-Serve Coffee Antitrust Litigationcase, which involved Keurig Dr. Pepper Inc."s K-cups that remained unchanged through the chain of distribution.[33] Notably, that decision appeared to hinge on a lack of detailed allegations about the chain of distribution and pass-through.[34]

Where the indirect purchaser plaintiffs purchase allegedly price-fixed component products subsumed within another product, antitrust standing under AGC continues to be found when one or more of the following key product or market characteristics are alleged: The markets for the components and end products: Are "inextricably linked and intertwined" in that the component products "have no independent utility and have value only as components for other products;"[35] and/or

Component part prices can be traced to show that changes in the prices paid by direct purchasers of the component affect prices paid by indirect purchasers of products containing the components.[38]

In addition, the sprawling U.S. District Court for the Eastern District of Michigan decision In re: Automotive Parts Antitrust Litigation repeatedly addressed antitrust standing at the pleading stage and established that the fact that a component represents a small portion of the value of a finished product does not defeat antirust standing.[40]

As shown above, the applicability of AGC to antitrust standing under state antitrust law continues to evolve. Practitioners prosecuting or defending antitrust actions should carefully consider these recent trends and their impact on what is required to meet this threshold requirement under state laws.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[2] We previously addressed these issues in 2012. See Competition Law360, Emerging Trends in Indirect Purchaser Cases by Chris Micheletti and Patrick Clayton, Jan. 19, 2012, available at https://www.law360.com/articles/298578/emerging-trends-in-indirect-purchaser-antitrust-cases.

[5] In re Lithium Ion Batteries Antitrust Litig. ("Batteries"), No. 13-MD-2420 YGR, 2014 WL 4955377, at *7 (N.D. Cal. Oct. 2, 2014) (emphasis in orig.) (citing Lorix v. Crompton Corp., 736 N.W.2d 619, 627 (Minn. 2007) and California v. ARC America ("ARC America"), 490 U.S. 93, 105-06 (1989)).

[7] See Emerging AGC Trends, n.5 (citing, among other cases, Stanislaus Food Products Co. v. USS–Posco Industries, 782 F. Supp. 2d 1059, 1070-72 (E.D. Cal. 2011) ("Stanislaus Food Products") (applying principles of antitrust standing under California"s Cartwright Act to indirect purchaser claims);In re Cathode Ray Tube (CRT) Antitrust Litig. ("CRTs"), 738 F. Supp. 2d 1011, 1024 (N.D. Cal. 2010) (application of AGC is a question of state law); In re Flash Memory Antitrust Litig. ("Flash"), 643 F. Supp. 2d 1133, 1151-53 (N.D. Cal. 2009) (holding that the applicability of AGC is a question of state law and questioning whether "a state"s harmonization provision, whether created by statute or common law, is an appropriate means of predicting how a state"s highest court would rule regarding the applicability of AGC"); In re: TFT-LCD (Flat Panel) Antitrust Litig. ("TFT-LCD (Flat Panel)"), 586 F. Supp. 2d 1109, 1123 (N.D. Cal. 2008) ("it is inappropriate to broadly apply the AGC test to plaintiffs" claims under the repealer states" laws in the absence of a clear directive from those states" legislatures or highest courts"); In re Graphics Processing Units Antitrust Litig., 527 F. Supp. 2d 1011, 1026 (N.D. Cal. 2007) ("Standing under each state"s antitrust statute is a matter of that state"s law. It would be wrong for a district judge, in ipse dixit style, to bypass all state legislatures and all state appellate courts and to pronounce a blanket and nationwide revision of all state antitrust laws"); D.R. Ward Constr. Co. v. Rohm and Haas Co., 470 F. Supp. 2d 485, 494-96 (E.D. Pa. 2006) (the court "finds that it need not use the AGC factors as the framework for analyzing whether federal prudential considerations permit standing under [state] antitrust statutes, unless relevant state law adopts these factors"); In re Aftermarket Filters Antitrust Litig., No. 08 C 4883, 2009 WL 3754041, at *7 (N.D. Ill. Nov. 5, 2009) ("any decision on whether a state has adopted the use of federal precedent in general, and the AGC factors in particular, to determine antitrust standing must be made on a state by state basis")).

[8] See, e.g.,In re Broiler Chicken Antitrust Litig., 290 F. Supp. 3d 772, 814-15 (N.D. Ill. 2017) ("In deciding whether to apply AGC to state-law antitrust claims, the Court will look to whether the relevant state high court or state legislature has spoken on the issue."); Los Gatos Mercantile, Inc. v. E.I. DuPont De Nemours and Co. ("Los Gatos Mercantile"), No. 13–cv–01180–BLF, 2015 WL 4755335, at *18-19 (N.D. Cal. Aug. 11, 2015) (holding that "this Court will apply AGC to claims brought under state antitrust laws whenever the state"s legislature, highest court, or intermediate court expressly has adopted AGC," and will not apply AGC based on "state court decisions indicating generally that federal law is consistent with or may inform interpretation of state antitrust statutes," or based on "a general harmonization provision in the state statute."); In re Pool Prod. Distribution Mkt. Antitrust Litig. ("Pool Prod. Distribution Mkt."), 946 F. Supp. 2d 554, 564 (E.D. La. 2013) (rejecting defendants" argument that "federal courts and inferior California courts" applied AGC and holding that "AGC factors apply to standing inquiries under state antitrust laws only to the extent that a state has adopted them.").

[9] The Supreme Court in California v. ARC America rejected a preemption challenge to Illinois Brick repealer provisions, and affirmed the right of the states to provide indirect purchasers with economic redress for their antitrust injuries. 490 U.S. 93 (1989).

[18] In Batteries, the court articulated a narrow view of when AGCshould be applied, reasoning, in part, that "even where some states" courts have specifically invoked AGC, they have perceived in their respective legislatures" passage of Illinois Brick repealer statutes an intent to extend antitrust standing to indirect purchasers and, accordingly, modified, or indicated they would modify, their application of AGC principles to accommodate indirect-purchaser suits more readily." 2014 WL 4955377, at *9; see also Los Gatos Mercantile, 2015 WL 4755335, at *18 (noting that the Batteries court took "a narrower approach" than requiring "clear direction from the state"s legislature or highest court" when it held that AGC could be applied "only when it can be determined that the state"s legislature or highest court would apply AGC in the same manner as it is applied by the federal courts").

[19] In re Dynamic Random Access Memory (DRAM) Antitrust Litig., 516 F. Supp. 2d 1072 (N.D. Cal. 2007) and DRAM II, 536 F. Supp. 2d 1129 (N.D. Cal. 2008).

[21] Batteries, 2014 WL 4955377, at *10-11 (stating after detailed analysis that "the Court cannot conclude on the authorities now before it that California applies AGC in the manner urged by defendants"). See alsoSidibe v. Sutter Health, No. C 12-04854 LB, 2013 WL 2422752, at *16 (N.D. Cal. June 3, 2013) (noting that courts in N.D. Cal. have reached different results, but that "[t]he court"s view is that the cases that do not require [application of the AGC] factors are persuasive.").

[22] See Broiler Chickens, 290 F. Supp. 3d at 816 n.15 (holding that AGC"s requirements are not applicable to California antitrust law because its Supreme Court has recognized that "California"s antitrust statute is "broader in range and deeper in reach that then [sic] Sherman Act"") (quoting In re Cipro Cases I & II, 61 Cal. 4th 116 (2015); In re Keurig Green Mountain Single-Serve Coffee Antitrust Litig. ("Keurig"), 383 F. Supp. 3d 187, 258 (S.D.N.Y. 2019) ("Although Vinci favorably cites AGC, subsequent cases from the Supreme Court of California cast doubt on the applicability of the AGC factors under California law. ... I cannot conclude, therefore, that the Supreme Court of California would apply the AGC factors in accordance with federal precedents, if at all, to determine indirect purchaser antitrust standing under the Cartwright Act."); Pool Prod. Distribution Mkt., 946 F. Supp. 2d at 564 ("These authorities cannot overcome the California Supreme Court"s decision in Clayworth to allow suit by indirect purchasers under the Cartwright Act and the UCL without applying the AGC factors."); but seeIn re Dairy Farmers of America, Inc. Cheese Antitrust Litig. ("Dairy Farmers"), No. 9 CV 3690, 2015 WL 3988488, at *8 (N.D. Ill. June 29, 2015).

[27] The court first reasoned that "[t]he California Legislature, unlike the United States Supreme Court, does not believe that a plaintiff"s attempt to estimate overcharges incurred through a multi-tiered distribution chain is unacceptably speculative and complex; rather, the California Legislature has expressly allowed such claims." Id. at *5. The court then explained that because "umbrella damages ... are calculated the same way as indirect purchaser non-umbrella damages," they "cannot be categorically barred under the Cartwright Act for failing to meet Illinois Brick"s benchmark for speculation and complexity." Id. The court then held that, even assuming AGC applies, "for the same reasons it is possible for Plaintiff to produce non-speculative evidence that Defendants" conduct caused a price umbrella, the Court concludes that the speculative nature of the alleged harm does not warrant a finding that Plaintiff lacks standing." Id. at *6.

[28] MDL No. 13-2437, 2019 WL 4918675 (E.D. Pa. Oct. 3, 2019). In Drywall, indirect purchasers of drywall alleged price-fixing claims under the California Cartwright Act against the defendant co-conspirators, and also sought damages for drywall purchased from non-conspirator manufacturers. Id. at *2. The court held that "[t]he Cartwright Act does not bar umbrella damages as a matter of law," rejected application of AGC, and held that the plaintiffs had antitrust standing. Id. at *9 (analyzing Cty. of San Mateo, CRT, and In re TFT-LCD Antitrust Litig., No. 07-1827, 2012 WL 6708866, at *8 (N.D. Cal. Dec. 26, 2012)). The court reasoned that "the Cartwright Act does not expressly prohibit umbrella damages (indeed, at least two federal courts interpreting the Act have concluded it does not, as a matter of law, bar plaintiffs from pursuing this theory), and . . . California judicial construction of the harmonization doctrine does not require application of the federal rule barring umbrella damages." Id. at *9-10.

[31] See, e.g., Keurig, 383 F. Supp. 3d at 264 (holding that the Nevada Supreme Court would apply AGC in accordance with federal precedent based solely on a so-called "mandatory" harmonization provision (i.e., "shall be construed in harmony . . ."), while rejecting reliance on a similar "mandatory" harmonization provision with respect to West Virginia, where legislative rules "suggest[] that the Supreme Court of Appeals of West Virginia would not apply AGC, or if it did, it would apply AGC more liberally than federal precedent would require."). See alsoIn re Refrigerant Compressors Antitrust Litig., No. 2:09-md-02042, 2013 WL 1431756, at *10 (E.D. Mich. Apr. 9, 2013) ("This Court shall also apply the AGC test to the claims asserted under the laws of the three relevant states with harmonization provisions . . ."); Dairy Farmers, 2015 WL 3988488, at *5 ("the Court will follow the plain language of the states" harmonization provisions and adopt federal antitrust-standing law in applying the states" antitrust laws absent contrary authority").

[32] See, e.g.,In re Propranolol Antitrust Litig., 249 F. Supp. 3d 712, 724-26 (S.D.N.Y. 2017) (applying AGC and holding that indirect purchasers of the drug propranolol had standing because, inter alia, "the chain of distribution in the pharmaceutical industry is short, direct, and well-understood: manufacturers sell to wholesalers, which in turn sell to the pharmacies from which the End–Payors" buy the drug," and while duplicative recovery was possible, ""[d]uplicative recovery is ... a necessary consequence that flows from indirect purchaser recovery and no bar against standing.""); Suboxone, 64 F. Supp. 3d at 697-98 ("The End Payors claim that they were overcharged when purchasing Suboxone due to the manufacturer"s monopolization. These allegations are sufficiently direct to satisfy the second factor in states that allow indirect purchasers to bring antitrust claims."); In re Interior Molded Doors Antitrust Litig., Nos. 3:18-cv-00718-JAG, 3:18-cv-00850-JAG, 2019 WL 4478734, at *10 (E.D. Va. Sept. 18, 2019) (indirect purchasers of "standalone" interior molded doors who purchased from distributors or home supply outlets have antitrust standing under AGC).

[34] Id. ("The vague allegation that "[t]he distribution channel for Keurig K-Cups is not complex,"" . . ., does not cure the speculative nature of the alleged harm. Moreover, if the allegation is accurate the IPPs should have provided the details of the distribution channel—including its length—with more specificity since the IPPs have had ample opportunities to do so.").

[35] SeeIn re Automotive Parts Antitrust Litig. (Fuel Senders) ("Auto Parts – Fuel Senders"), 29 F. Supp. 3d 982, 1002 (E.D. Mich. 2014) ("IPPs have alleged that the markets for Fuel Senders and cars are inextricably intertwined, that the demand for cars creates the demand for Fuel Senders, that the Fuel Senders must be inserted into vehicles to serve a function, that Fuel Senders remain identifiable, discrete physical products, unchanged by the manufacturing process or incorporation into vehicles, that Fuel Senders follow a traceable physical chain, and that their prices can be traced through the chain of distribution."); Batteries, 2014 WL 4955377, at *12 ("IPPs allege facts sufficient to conclude, for pleading purposes, that battery cells, batteries, and battery products reside in the same market, or inextricably linked markets"); see also TFT–LCD (Flat Panel), 586 F. Supp. 2d at 1123; Stanislaus Food Products, 782 F. Supp. 2d at 1070-72.

[36] In re Automotive Parts Antitrust Litigation (Bearings)("Auto Parts – Bearings"), 50 F. Supp. 3d 836, 855 (E.D. Mich. 2014) (finding antitrust standing at pleading stage where, inter alia, plaintiffs allege "that the markets for Bearings and cars are inextricably intertwined, that the demand for cars creates the demand for Bearings, that the Bearings market exists to serve the vehicle market and bearings have little to no value outside the vehicle"); Batteries, 2014 WL 4955377, at *12 ("The cases, though not explicit on this point, appear to rest on the tacit premise that allegations which, if true, plausibly suggest cross-elasticity of demand between the component and finished-product markets, such that the two are economic complements, survive the pleadings stage"); see also TFT–LCD (Flat Panel), 586 F. Supp. 2d at 1123.

[37] Auto Parts – Fuel Senders, 29 F. Supp. 3d at 1003 ("Similarly, the harm alleged becomes less speculative in light of IPPs" assertion that the component parts remain separate and traceable"); see also TFT–LCD (Flat Panel), 586 F. Supp. 2d at 1123 (same); In re Graphics Processing Units Antitrust Litig. ("GPU II"), 540 F. Supp. 2d 1085, 1092-93 (N.D. Cal. 2007) (same); CRTs, 738 F. Supp. 2d at 1024 (same).

[38] Auto Parts – Fuel Senders, 29 F. Supp. 3d at 1002-03 ("Because IPPs asserted that the cost of the component was traceable through the product distribution chain, they have alleged a chain of causation . . .. Therefore, according to IPPs, they can trace overcharges through the distribution chain, and [the directness of the injury] AGC factor is satisfied."); Batteries, 2014 WL 4955377, at *14 ("The chain alleged is one that moves a distinct and identifiable overcharge nearly automatically through layers of a distribution structure to consumer IPPs. The Court finds that this is not too indirect to favor standing under AGC"); see also TFT–LCD (Flat Panel), 586 F. Supp. 2d at 1123 (same); GPU II, 540 F. Supp. 2d at 1092-93 (same); CRTs, 738 F. Supp. 2d at 1024 (same).

[39] Batteries, 2014 WL 4955377, at *3, *12, *29 (holding that the market for allegedly price-fixed lithium ion batteries, which "have no use other than functioning as components in lithium ion battery products," is inextricably linked to the markets for the finished products containing them, including "laptop computers, camcorders, smart phones, or power tools"); see also Flash, 643 F. Supp. 2d at 1154 (same with respect to NAND flash memory and the products in which it is used).

[40] Auto Parts – Bearings, 50 F. Supp. 3d at 851, 855 ("The Court is not persuaded that the allegations are too remote or contrary based upon Defendants" position that the price-fixed product does not make up a substantial portion of the finished good"s costs") (emphasis added); Auto Parts – Fuel Senders, 29 F. Supp. 3d at 998, 1002-03 (noting and ultimately rejecting defendants" argument that