In re: TFT-LCD (Flat Panel) Antitrust Litigation
Antitrust, damages analysis, class certification
U.S. District Court for the Northern District of California
applEcon helped a class of U.S. consumers to obtain settlements totaling $1.082 billion from a cartel of manufacturers of liquid crystal display (LCD) panels. LCD panels are flat video displays used in computer monitors, laptop computers, and televisions. The nine manufacturers that comprised the cartel supplied approximately 98% of the worldwide market for large LCD panels during the period the cartel operated, 1999-2006. Sales of LCD panels at issue to class members were approximately $23.5 billion during this period. Representatives of the cartel’s member companies, including senior executives, met about once a month for years to collude on capacity and output, and to fix prices.
The value of applEcon’s approach to such cases, combining deep knowledge of the industry and information available in the case with strong analytical skills, are highlighted by this engagement. In July 2011, defendants submitted nine separate expert reports all responding to Dr. Netz’s analysis. Given only three weeks to file a reply, applEcon analyzed and responded to these reports with factual and analytical evidence countering their various claims. The depth of applEcon’s knowledge of the industry led class counsel to also rely on applEcon to provide critical assistance on issues related to both the Foreign Trade Antitrust Improvements Act of 1982 (FTAIA) and ascertainability, both of which are primarily legal, as opposed to economic, matters. applEcon’s depth of knowledge also led other firms in related litigation to rely on us for our understanding of the massive volume of disparate data produced by the various defendants.
Over the course of the four and a half year engagement, applEcon supported class attorneys at virtually every stage of this complex case. applEcon submitted nine expert reports and affidavits and helped class attorneys address a wide range of issues, including: class certification, discovery, damages, pass-through of overcharges to indirect purchasers, class de-certification, cartel effectiveness and causation of antitrust harm, class members’ ability to ascertain their claims, a Daubert challenge, a motion to dismiss based on FTAIA, and responses to several additional motions for summary judgment. applEcon was preparing trial testimony when the last of the defendants, AUO, LG, and Toshiba, settled with the indirect purchaser class shortly before trial was to begin.
Suit was brought by representatives of a putative class of U.S. purchasers of products containing large LCD panels, alleging that the cartel caused the prices they paid for LCD products to be above competitive levels, in violation of U.S. antitrust laws. Attorneys for the indirect purchaser class faced a myriad of complications: an LCD panel may change hands several times as it passes from the LCD manufacturer to product manufacturers, distributors, and retailers before an end consumer ultimately takes it home as a component of a monitor, laptop, or television. Proof of antitrust harm required establishing that defendants overcharged their direct customers and that the cartel’s overcharges were passed through the length of the distribution chain resulting in elevated prices for end consumers purchasing products containing LCD panels. Calculating damages to end consumers required quantifying both the overcharge to direct purchasers as well as the pass-through rate.
Because the cartel members were based in foreign countries, class attorneys also faced the challenge of demonstrating that the cartel’s actions had a “direct, substantial, and reasonably foreseeable effect on domestic commerce” in order to meet FTAIA requirements. applEcon drew upon its extensive experience in demonstrating pass-through and common proof of damages as it helped attorneys for the class to meet these challenges. Judge Susan Illston relied on applEcon’s pass-through analyses when she certified the indirect purchaser class, and cited Dr. Netz’s pass-through testimony in her order denying Defendants’ motion to dismiss based on FTAIA, writing that the “increased price of the components caused the prices of finished products in the United States to increase. If that’s not ‘direct,’ it’s difficult to imagine what would be.”
Complications multiplied due to the fact that the conspiracy involved nine defendants based in three foreign countries, with multiple divisions across the globe, some involved in multiple stages of production. For example, Samsung was a producer of both LCD panels and televisions containing LCD panels. Whereas applEcon has long been accustomed to large, complex cases, with mountains of documents and data, we soon discovered that ordinary complications are compounded by multiple defendants, multiple teams of opposing attorneys and expert witnesses, and multiple datasets, each with unique characteristics. We enjoy developing systems that improve the efficiency of our operations, and methods we developed in previous complex litigation allowed us to meet the challenges of this case in a cost-effective manner.