United States District Court

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United States District Court

For the Northern District of California

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

IN RE: TFT-LCD (FLAT PANEL) ANTITRUST

LITIGATION

 /

This Order Relates To:

NOKIA CORPORATION and NOKIA, INC.,

Plaintiffs,

 v.

AU OPTRONICS CORPORATION, et al.,

Defendants. /

No. M 07-1827 SI

MDL. No. 1827

No. C 09-5609 SI

ORDER GRANTING DEFENDANTS’

JOINT MOTION TO DISMISS AND

GRANTING PHILIPS ELECTRONICS

NORTH AMERICA CORPORATION’S

MOTION TO DISMISS; GRANTING

PLAINTIFFS LEAVE TO AMEND

On June 23, 2010, the Court held a hearing on defendants’ joint motion to dismiss the complaint,

and on Philips Electronics North America Corporation’s motion to dismiss the complaint. For the

reasons set forth below, the Court GRANTS defendants’ motions and GRANTS plaintiffs leave to

amend the complaint.

BACKGROUND

On November 25, 2009, plaintiffs Nokia Corporation and Nokia, Inc. filed an individual

complaint against numerous domestic and foreign defendants for violations of state and federal antitrust

laws. Pursuant to the Judicial Panel on Multidistrict Litigation’s April 20, 2007 transfer order

consolidating pretrial proceedings for a number of actions and this Court’s July 3, 2007 related case

pretrial order #1, the case was designated as related to MDL No. 1827, M 07-1827.

The complaint alleges a global price-fixing conspiracy by suppliers of liquid crystal display

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(LCD) panels. Nokia Corporation is incorporated under the laws of Finland. Compl. ¶ 30. Nokia, Inc.,

is an American subsidiary of Nokia Corporation. Id. ¶ 31. Nokia Corporation is a “global leader in the

design, manufacture, and supply of mobile wireless handsets.” Id. ¶ 30. The complaint alleges that

during the conspiracy period (1996-2006), “LCDs used in mobile wireless handsets included at least

four different passive and active matrix technologies: thin film transistor panels (‘TFT panels’), color

super-twist nematic panels (‘CSTN panels’), film super-twist nematic panels (‘FSTN panels’), and

monochrome super-twist nematic panels (‘MSTN panels’). Defendants’ and their co-conspirators’

price-fixing conspiracy alleged herein had the effect of raising, fixing, maintaining, and/or stabilizing

the prices of LCDs using TFT, CSTN, FSTN, and MSTN technologies.” Id. ¶ 24. 

Plaintiffs’ first claim for relief seeks treble damages and injunctive relief under Section 1 of the

Sherman Act, and Sections 4 and 16 of the Clayton Act. The second claim for relief seeks treble

damages under California’s Cartwright Act. “In the alternative,” to the federal and Cartwright Act

claims, the third claim for relief alleges claims under California’s Unfair Competition Law, as well as

the antitrust, consumer protection, unfair trade and deceptive practices laws of twenty-one other states

and the District of Columbia. Id. ¶ 171.

LEGAL STANDARDS

I. Federal Rule of Civil Procedure 12(b)(1)

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. See Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 376-78

(1994) (citation omitted). A complaint will be dismissed if, looking at the complaint as a whole, it

appears to lack federal jurisdiction either “facially” or “factually.” Thornhill Publishing Co., Inc. v.

General Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979). When the complaint is challenged for

lack of subject matter jurisdiction on its face, all material allegations in the complaint will be taken as

true and construed in the light most favorable to the plaintiff. NL Indus. v. Kaplan, 792 F.2d 896, 898

(9th Cir. 1986). 

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II. Federal Rule of Civil Procedure 12(b)(6)

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, 550 U.S. 544, 570 (2007). This “facial plausibility” standard requires the plaintiff

to allege facts that add up to “more than a sheer possibility that a defendant has acted unlawfully.”

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). While courts do not require “heightened fact pleading

of specifics,” a plaintiff must allege facts sufficient to “raise a right to relief above the speculative

level.” Twombly, 550 U.S. at 544, 555. 

In deciding whether the plaintiff has stated a claim upon which relief can be granted, the court

must assume that the plaintiff’s allegations are true and must draw all reasonable inferences in the

plaintiff's favor. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the

court is not required to accept as true “allegations that are merely conclusory, unwarranted deductions

of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008).

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, 203 F.3d 1122, 1130 (9th Cir. 2000) (citations and internal

quotation marks omitted). 

DISCUSSION

I. Defendants’ joint motion to dismiss

A. Foreign Trade Antitrust Improvements Act (FTAIA)

Defendants contend that the Court lacks subject matter jurisdiction over plaintiffs’ claims to the

extent they are based on foreign purchases of LCD panels and products. The Foreign Trade Antitrust

Improvements Act, 15 U.S.C. § 6a (“FTAIA”), amends the Sherman Act and “excludes from [its] reach

much anti-competitive conduct that causes only foreign injury.” F. Hoffman-LaRoche, Ltd. v.

Empagran (Empagran I), 542 U.S. 155, 158 (2004). The FTAIA establishes a general rule that the

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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. 

In response, plaintiffs’ opposition states, “Nokia is only claiming damages for domestic

purchases and purchases of products imported directly into the United States by Defendants and their

co-conspirators. Nokia does not concede that the [FTAIA] would bar it from bringing claims for

additional purchases related to LCDs and LCD Products purchased from Defendants by subsidiaries or

outsourced manufacturers and subsequently imported into the United States. Nokia, however, has

elected not to pursue those claims in this action.” Opposition at 1 n.3.

Notwithstanding this statement, defendants contend that the complaint is still deficient because

only Nokia Inc. alleges that it made purchases from defendants in interstate or U.S. import commerce,

and there are no allegations that Nokia Corporation of Finland made any such purchases. Defendants

note that aside from certain allegations specific to Nokia Inc., the complaint makes allegations about

“Nokia,” which the complaint defines as including “collectively and/or individually” Nokia Inc., Nokia

Corporation, and all of their respective subsidiaries, assigns, affiliates, or related companies. See

Compl. ¶ 1. At the hearing, plaintiffs’ counsel asserted that Nokia Corporation has made purchases of

LCDs from defendants in interstate or U.S. import commerce, although plaintiffs’ counsel conceded that

the complaint does not contain any such allegations specific to Nokia Corporation.

The Court finds that, as reframed in plaintiffs’ opposition, plaintiffs’ claims are not barred by

the FTAIA because plaintiffs are seeking damages only for domestic purchases and purchases of

products directly imported by defendants or their co-conspirators into the United States. However, the

Court agrees with defendants that Nokia Corporation must allege information about its purchases, and

that the complaint must differentiate between the two plaintiffs. Accordingly, the Court GRANTS

defendants’ motion to dismiss and GRANTS plaintiffs leave to amend to allege where each plaintiffs’

purchases occurred.

B. Contacts with states/due process

Defendants move to dismiss all of plaintiffs’ state law claims on the ground that the complaint

does not allege sufficient contacts between the respective states and plaintiffs’ claims to satisfy Due

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Process. In particular, defendants argue that plaintiffs’ failure to allege that they bought the products

at issue in California, or any of the other states whose laws they seek to invoke, requires dismissal of

the state law claims. Defendants rely on several cases in which courts have dismissed state antitrust

claims, either for lack of standing or on due process grounds, where the plaintiffs did not allege that they

purchased price-fixed products in those states. See, e.g., Pecover v. Electronic Arts Inc., 633 F. Supp.

2d 976, 984 (N.D. Cal. 2009) (dismissing antitrust claims under laws of 18 states in which plaintiffs did

not purchase products); In re Graphics Processing Units Antitrust Litig. (“GPU”), 527 F. Supp. 2d 1011,

1027-29 (N.D. Cal. 2007) (dismissing for lack of standing antitrust claims under laws of states in which

plaintiffs did not purchase products, and striking all references to a nationwide class under California

law because extraterritorial application of California law would violate due process). Defendants also

argue that plaintiffs do not explain why or under what circumstances the Court would apply, “in the

alternative” to federal law and the Cartwright Act, the laws of the numerous other states to any of the

claims alleged in the amended complaint.

To decide 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, 449 U.S.

302, 308 (1981) (emphasis added); see also Phillips Petroleum v. Shutts, 472 U.S. 797, 821-22 (1985)

(Due Process requires a “significant contact or significant aggregation of contacts” between the

plaintiff's claims and the state at issue). In a price-fixing case, the relevant “occurrence or transaction”

is the plaintiff’s purchase of an allegedly price-fixed good. See GPU, 527 F. Supp. 2d at 1028-29.

Plaintiffs contend that there are significant contacts between Nokia’s claims and California,

including defendants’ unlawful conduct in the state, the transaction of business in the state, and the sale

of products in the state. Plaintiffs note that defendants did business in California, and certain defendants

maintained offices and/or sales agents in California. However, these allegations do not provide a link

between plaintiffs’ claims that they purchased price-fixed products and California. Plaintiffs also rely

on various defendants’ plea agreements, which state that “acts in furtherance of this conspiracy were

carried out in the Northern District of California.” The plea agreements state that the “acts in

furtherance” of the conspiracy were sales of TFT-LCD panels and products to customers within the

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Northern District. See, e.g., Plea Agreement at 4, United States v. LG Display Co., (Docket No. 14 in

CR 08-803). However, the fact that some defendants have admitted to selling price-fixed goods to

customers in this District does not establish the requisite connection with California because those plea

agreements do not state, nor have plaintiffs alleged, that any defendants sold products to plaintiffs in

California. In addition, plaintiffs argue that there is a sufficient nexus between their claims and all of

the various state laws because Nokia conducts a substantial amount of business in each of the states.

Again, however, the fact that Nokia has a presence in the various states does not establish a link between

plaintiffs’ antitrust claims and the States. 

The Court agrees that in order to invoke the various state laws at issue, plaintiffs must be able

to allege that “ the occurrence or transaction giving rise to the litigation” – the purchases of allegedly

price-fixed goods – occurred in the various states. Allstate Ins. Co., 449 U.S. at 308. Under plaintiffs’

theory, Nokia could invoke California law – or any of the other state statutes alleged in the complaint

– even if none of plaintiffs’ purchases of price-fixed goods occurred in those states, simply because

Nokia and defendants have a presence in the states at issue, and/or because defendants sold price-fixed

good to other consumers in those states. However, such contacts do not provide a necessary link

between plaintiffs’ claims and the states whose laws plaintiffs seek to invoke. The Court GRANTS

defendants’ motion to dismiss all of the state law claims and GRANTS plaintiffs leave to amend the

complaint to allege contacts with each State – here, purchases of price-fixed goods – in order to satisfy

Due Process. In addition, if plaintiffs decide to plead claims “in the alternative” in the amended

complaint, plaintiffs must explain under what circumstances they would pursue the alternative claims.

C. Allegations regarding non-TFT technology

The amended complaint alleges that the conspiracy had the effect of “raising, fixing,

maintaining, and/or stabilizing the prices of LCDs using TFT, CSTN, FSTN, and MSTN technologies.”

Compl. ¶ 24. The amended complaint’s factual allegations regarding a price-fixing conspiracy all relate

to TFT-LCD panels, and there are no allegations specifically regarding price-fixing CSTN, FSTN, or

MSTN-LCD panels.

Defendants contend that plaintiffs have not alleged any facts to support their assertion that the

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alleged conspiracy encompassed LCD panels using CSTN, FSTN or MSTN technology. These

technologies are older technologies with slower response times than TFT-LCD panels (referred to as

“active matrix”). Defendants contend that plaintiffs do not support their broader conspiracy claims with

any factual allegations that are separately and specifically directed to STN panels. Defendants also note

that neither the class cases nor the DOJ’s investigation into the LCD industry have alleged any

price-fixing conspiracy related to STN LCD panels.

 In response, plaintiffs contend that the complaint satisfies Twombly because in light of the

admitted conspiracy to fix the price of TFT-LCD panels, it is plausible that defendants also conspired

to fix the prices of STN-LCD panels because these panels are close substitutes for TFT-LCD panels.

Plaintiffs also rely on cases in which courts have held that an admitted conspiracy to fix the price of one

product makes plausible the allegation that the same defendants also conspired to fix the price of a

related product. See, e.g., In re High Fructose Corn Syrup Antitrust Litig., 295 F.3d 651, 661 (7th Cir.

2002); In re SRAM Antitrust Litig., 580 F. Supp. 2d 896, 903 (N.D. Cal. 2008); In re Chocolate

Confectionary Antitrust Litig. 602 F. Supp. 2d 538, 576-77 (M.D. Pa. 2009). However, as defendants

note, in these cases there were specific factual allegations to support the conspiracy claims with respect

to the specific products or markets at issue, in addition to allegations concerning guilty pleas with

respect to the other products or markets. For example, in SRAM the complaint contained allegations

about the susceptibility of the SRAM market to collusion, as well as specific communications between

the defendants about the price and demand for SRAM. 580 F. Supp. 2d at 902. Judge Wilken held that

the plaintiffs could rely on the guilty pleas entered by numerous defendants in the DRAM litigation

because “the same actors associated with certain Defendants were responsible for marketing both

SRAM and DRAM.” Id. at 903. However, Judge Wilken also noted that “[a]lthough the allegations

regarding the DRAM guilty pleas are not sufficient to support Plaintiffs’ claims standing on their own,

they do support an inference of a conspiracy in the SRAM industry.” Id.; see also In re High Fructose

Corn Syrup Antitrust Litigation, 295 F.3d at 661 (reversing summary judgment in favor of defendants

where plaintiffs adduced evidence of agreement to fix prices of high fructose corn syrup, as well as

admission by one defendant that it fixed prices on two related products during overlapping time period);

In re Chocolate Confectionary Antitrust Litig., 602 F. Supp. 2d at 551-52, 557 (allegations of

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price-fixing in Canadian chocolate market supported allegations of price-fixing in U.S. chocolate market

where plaintiffs alleged specific anticompetitive conduct in U.S. as well as integration of the two

markets). 

Similarly, plaintiffs assert that their allegations of a price-fixing conspiracy involving STN LCDs

are made plausible by the fact that a number of defendants are being investigated by the DOJ and

foreign antitrust authorities for participating in a global conspiracy to fix the prices of cathode ray tubes.

Again, however, the fact that some defendants are under investigation for anticompetitive conduct in

the cathode ray tube market does not, on its own, state a claim for price-fixing STN LCDs. “To state

a claim under Section 1 of the Sherman Act, . . . claimants must plead not just ultimate facts (such as

a conspiracy), but evidentiary facts which if true, will prove” a conspiracy. Kendall v. VISA U.S.A. Inc.,

518 F.3d 1042, 1047 (9th Cir. 2008). Here, the amended complaint does not contain any specific factual

allegations that defendants conspired to fix prices of STN-LCD panels, and the Court cannot infer the

existence of such an expanded conspiracy based solely on allegations of price-fixing in the TFT-LCD

market, or any other non-STN market. The Court GRANTS defendants’ motion to dismiss and

GRANTS plaintiffs leave to amend.

II. Philips Electronics North America Corporation’s motion to dismiss

Defendant Philips Electronics North America Corporation (PENAC) moves to dismiss the

complaint for failure to state a claim. PENAC contends that the complaint does not allege any

substantive conduct on the part of PENAC showing that PENAC participated in the alleged price-fixing

conspiracy. 

The complaint alleges that PENAC “is a wholly owned subsidiary of Philips International B.V.,

which in turn is a wholly-owned subsidiary of Royal Philips Electronics N.V.” Compl. ¶ 53. The

complaint alleges that Royal Philips Electronics N.V. (“Royal Philips”) is a Dutch holding company

incorporated in the Netherlands, and that it is a co-conspirator in the alleged price-fixing conspiracy.

Id. ¶ 69. The only specific allegations regarding PENAC in the complaint are the following:

During the Conspiracy Period, Nokia purchased LCDs from Royal Philips Electronics

N.V. and Philips Electronics North America Corporation themselves or via their

subsidiaries. Philips Electronics North America Corporation also manufactured, sold,

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and/or distributed LCDs to other purchasers through the United States and elsewhere

during the Conspiracy Period. [PENAC] participated in the conspiracy through the

actions of its officers, employees and representatives acting with actual or apparent

authority.

Id. ¶ 53. The complaint also alleges that “Philips” has acknowledged receiving a Statement of

Objections from the European Commission concerning its alleged participation in a conspiracy in

violation of Article 81 of the EC Treaty and Article 53 of the Agreement on the European Economic

Area. Id. ¶ 139. According to PENAC, it was Royal Philips, and not PENAC, that received the

Statement of Objections. See Cullen Decl. Ex. B.

PENAC contends that these allegations are insufficient to state a claim because there are no

allegations of any anticompetitive conduct by PENAC. PENAC contends that the complaint simply

asserts, without any factual particulars, that PENAC “participated in the conspiracy,” and that the only

“facts” in support of that allegation are that PENAC manufactured, sold and distributed LCDs. PENAC

argues that under Twombly, allegations of such plainly legal conduct are insufficient to state an antitrust

claim against PENAC. PENAC notes that Twombly requires “more than labels and conclusions,” and

that the complaint must contain “enough factual matter (taken as true) to suggest that an agreement was

made.” Twombly, 550 U.S. at 555, 556; see also Kendall, 518 F.3d at 1047 (citing Twombly for the

proposition that “an allegation of parallel conduct and a bare assertion of conspiracy will not suffice”

to plead an antitrust violation). PENAC also notes that it has not been named as a defendant in any of

the other actions in this MDL.

Plaintiffs contend that they have stated a claim against PENAC because the complaint alleges

that (1) PENAC, along with Royal Philips and Royal Philips’ joint venture LG Display, entered into an

agreement with the other defendants to fix prices of LCDs; (2) PENAC “participated in the conspiracy

through the actions of its officers, employees, and representatives acting with actual or apparent

authority” and “implemented and policed the[] illegitimate agreements to fix prices and limit output for

LCDs through numerous meetings,” Compl. ¶¶ 53, 82; (3) PENAC acted as U.S. sales agent for Royal

Philips; (4) Royal Philips has admitted receiving a Statement of Objections from the EC and held,

during the conspiracy period, a controlling interest in its joint venture LG Display; and (5) LG Display

has pled guilty to participating in the LCD price-fixing conspiracy. 

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 PENAC notes that plaintiffs’ opposition includes assertions about other entities, such as

Philips Mobile Display Systems (PMDS) that do not appear in the complaint.

10

The Court agrees with PENAC that the complaint falls short of alleging PENAC’s role in the

alleged conspiracy. Plaintiffs assert that paragraphs 3, 4, 5, 10, 50, 52, 53, 68, 69, 82, 87, 88, 105 and

142 support their allegations regarding PENAC’s involvement in the conspiracy. However, only

paragraph 53, quoted above, mentions PENAC; all of the other cited paragraphs contain allegations

about other defendants, Royal Philips, and/or “defendants.” Thus, the only specific allegations in the

complaint regarding PENAC simply allege PENAC’s corporate status, that Nokia purchased LCDs from

PENAC or via PENAC’s subsidiaries, that PENAC “manufactured, sold, and/or distributed LCDs to

other purchasers through the United States and elsewhere,” and that PENAC “participated in the

conspiracy through the actions of its officers, employees, and representatives acting with actual or

apparent authority.” Id. ¶ 53. There is nothing in paragraph 53 or elsewhere alleging how PENAC

participated in the conspiracy. Similarly, allegations and assertions about Royal Philips and LG Display

are insufficient to state a claim against PENAC unless the complaint alleges a specific connection

between PENAC and the alleged conspiracy.1

 While the complaint need not include elaborate detail

about PENAC’s role, the complaint “must allege that each individual defendant joined the conspiracy

and played some role in it because, at the heart of an antitrust conspiracy is an agreement and a

conscious decision by each defendant to join it.” In re Elec. Carbon Prods. Antitrust Litig., 333 F.

Supp. 2d 303, 311-12 (D.N.J. 2004). Contrary to PENAC’s assertions, the Court did not hold otherwise

in the MDL class cases, and held in those cases that while detailed defendant by defendant pleading was

not required by Twombly, an antitrust plaintiff must specifically plead how each individual defendant

joined the alleged price-fixing conspiracy. 

Accordingly, the Court GRANTS PENAC’s motion to dismiss and GRANTS plaintiffs leave

to amend.

CONCLUSION

For the foregoing reasons, the Court hereby GRANTS defendants’ motions to dismiss and

GRANTS plaintiffs leave to amend the complaint. (Docket No. 15 in C 09-5840 SI, and Docket Nos.

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1687 and 1695 in M 07-1827 SI). The amended complaint shall be filed no later than July 23, 2010.

IT IS SO ORDERED.

Dated: June 29, 2010 SUSAN ILLSTON

United States District Judge

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