Proview Technology, Inc. et al v. AU Optronics Corporation et al
Filing
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ORDER RE: DEFENDANTS' JOINT MOTION TO DISMISS PROVIEW'S THIRD AMENDED COMPLAINT re [5-] - 12cv3802 (Illston, Susan) (Filed on 9/25/2014) Modified on 9/26/2014 (ysS, COURT STAFF).
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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United States District Court
For the Northern District of California
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IN RE: TFT-LCD (FLAT PANEL) ANTITRUST
LITIGATION
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This Order Relates to:
No. M 07-1827 SI
MDL. No. 1827
Case No. C 12-3802 SI
ORDER RE DEFENDANTS’ JOINT
MOTION TO DISMISS PROVIEW’S
THIRD AMENDED COMPLAINT
Proview Technology Inc., et al. v. AU Optronics
Corp., et. al., C 12-3802 SI
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On April 18, 2014, the Court issued an Order granting in part and denying in part defendants’
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motion to dismiss plaintiff Proview Technology Inc.’s third amended complaint (“TAC”). MDL Master
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Dkt. No. 8964. The Court ordered the parties to submit further briefing on the issue of whether the
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Foreign Trade Antitrust Improvements Act of 1982 (“FTAIA”) applied to PTI’s claims under California
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law. Specifically, the Court ordered the parties to address: (1) any additional authority regarding the
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applicability of the FTAIA to state law claims, (2) assuming the FTAIA does apply to PTI’s state claims,
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whether the fact that the TAC alleges that PTI purchased finished products in California is relevant, and
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whether additional allegations are required to bring PTI’s state law claims outside the scope of the
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FTAIA (and whether the TAC includes any such allegations), and (3) whether the analysis regarding
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the applicability of the FTAIA to PTI’s UCL claim is different in any way from the analysis regarding
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the Cartwright Act claim.
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After the parties submitted their additional briefing, the Ninth Circuit specifically examined the
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applicability of the FTAIA in the context of this MDL. See United States v. Hsiung, 758 F.3d 1074 (9th
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Cir. 2014). The Ninth Circuit noted that the plain text of the FTAIA excludes import trade from its
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scope. Id. at 1089 (“[I]mport trade, as referenced in the parenthetical statement, does not fall within the
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FTAIA at all.”). The court gave “import trade” its plain meaning, stating that transactions between
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foreign TFT-LCD producers and United States purchasers clearly fell within that definition. Id. at 1090.
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The Hsiung court stated that in this case, where “at least a portion of the transactions . . . involve[d] the
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heartland situation of the direct importation of foreign goods into the United States,” the defendants’
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conduct was properly considered import trade, outside the scope of the FTAIA. Id. n.7.
The Ninth Circuit further noted that it was alleged, and proven at trial, that defendants “engaged
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in the business of producing and selling TFT-LCDs to customers in the United States.” Id. at 1091. The
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court’s holding was influenced by defendants’ conspiracy to set prices that would impact pricing in the
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United States. Id. The Ninth Circuit concluded that defendants’ conduct was outside of FTAIA’s scope
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United States District Court
For the Northern District of California
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because “the conspiracy’s intent, as alleged, was to ‘suppress and eliminate competition’ by fixing
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prices for panels that AUO and AUOA sold to manufacturers ‘in the United States and elsewhere’ for
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incorporation into retail technology sold to consumers in the United States and elsewhere.” Id. As the
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court stated: “To suggest, as the defendants do, that AUO was not an ‘importer’ misses the point. The
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panels were sold into the United States, falling squarely within the scope of the Sherman Act.” Id.
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The Court recently applied the Ninth Circuit’s holding in Hsiung to defendants’ motion for
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summary judgment based upon plaintiff TracFone’s claims under Florida law. MDL Master Dkt. No.
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9218. The Court noted that the claims at issue were based upon substantially the same evidence as was
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before the Ninth Circuit in Hsiung. Id. The Court further stated that, although those claims were made
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pursuant to state law and not the Sherman Act, “the Ninth Circuit’s reasoning excluding defendants’
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conduct from the scope of the FTAIA applie[d] with equal force.” Id. at 4.
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The Court finds that the same reasoning applies to PTI’s claims under California law, and thus
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defendants’ motion to dismiss must fail. As the Court noted with respect to defendants’ summary
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judgment motion on TracFone’s state law claims, it is not the plaintiff’s “purchases that determine
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whether the FTAIA applies; rather it is defendants’ conduct – the same conduct that the Ninth Circuit
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held constituted import trade in Hsiung,” and was therefore outside of the scope of the FTAIA. Id.
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Accordingly, the Court finds that the FTAIA does not apply to PTI’s California law claims, and
therefore denies the balance of defendants’ motion to dismiss.
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CONCLUSION
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For the foregoing reasons and for good cause shown, and on the basis of the record before it, the
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Court hereby DENIES defendants’ motion to dismiss PTI’s California law claims. This Order resolves
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MDL Master Docket No. 8304.
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IT IS SO ORDERED.
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Dated: September 25, 2014
SUSAN ILLSTON
UNITED STATES DISTRICT JUDGE
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United States District Court
For the Northern District of California
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