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Los Gatos Mercantile, Inc. v. E.I. Dupont de Nemours & Co.

United States District Court for the Northern District of California, San Jose Division

September 22, 2014, Decided; September 22, 2014, Filed

Case No. 13-cv-01180-BLF



[Re: ECF 70]

Plaintiffs bring this indirect purchaser class action against four manufacturers of titanium dioxide, asserting claims under state and federal antitrust laws, state consumer protection statutes, and state common laws. Defendants move to dismiss for lack of Article III standing, lack of antitrust standing, and failure to state a claim upon which relief may be granted. The Court has considered the briefing and the oral argument presented at the hearing on July 10, 2014. For the reasons discussed below, the motion is GRANTED IN PART, with leave to amend.


Defendants E.I. DuPont de Nemours and Company ("DuPont"), Huntsman International, LLC ("Huntsman"), Kronos Worldwide, Inc. ("Kronos"), and Millennium Inorganic Chemicals, [*4]  Inc. ("Millennium") manufacture and sell titanium dioxide, a chemical that is used as an ingredient in numerous products including paint, paper, plastic, inks, pharmaceutical coatings, toothpaste, sunscreen, cosmetics, food, rubber, and ceramic. Titanium dioxide is unique in that it "traps and reflects light better than almost any known substance." First Am'd Compl. ¶ 49. There are no competitive substitutes for titanium dioxide in consumer products.

In 2010, direct purchasers of titanium dioxide filed a putative class action against DuPont, Huntsman, Kronos, and Millennium in the District of Maryland, alleging a price-fixing conspiracy in violation of antitrust and consumer protection laws. See Case No. 1:10-cv-00318. Following significant motion practice, that case was set for a four-week jury trial to commence in September 2013. The parties settled on the eve of trial, and on December 13, 2013 the court approved the class action settlement and entered judgment.

While the direct purchaser action was pending, the present indirect purchaser action was filed by seven paint retailers: Los Gatos Mercantile, Inc. dba Los Gatos Ace Hardware; Fred Swaim, Inc. dba Quality Auto Parts; Ace Hardware [*5]  of South Walton, Inc.; Lexington Home Center, LLC; R.F. Cole, Inc. dba Brewers Paint Center; Cusimano Carstar Collision, Inc.; and The Carpetshoppe, Inc. Plaintiffs subsequently filed the operative first amended complaint ("FAC") adding two individual plaintiffs, Morgan Tanner and William Aviles.

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2014 U.S. Dist. LEXIS 133540 *; 2014-2 Trade Cas. (CCH) P78,919; 2014 WL 4774611

LOS GATOS MERCANTILE, INC, et al., Plaintiffs, v. E.I. DUPONT DE NEMOURS AND COMPANY, et al., Defendants.

Subsequent History: Dismissed by, in part, Dismissed without prejudice by, in part, Motion denied by, As moot, Request denied by, Motion granted by, in part, Motion denied by, in part, Motion to strike denied by Los Gatos Mercantile, Inc. v. E.I. Dupont De Nemours & Co., 2015 U.S. Dist. LEXIS 106292 (N.D. Cal., Aug. 11, 2015)

Motion granted by, in part, Motion denied by, in part Harrison v. E. I. DuPont De Nemours & Co., 2016 U.S. Dist. LEXIS 77465 (N.D. Cal., June 13, 2016)

Settled by, Motion granted by, Costs and fees proceeding at, Judgment entered by Harrison v. E.I. DuPont De Nemours & Co., 2018 U.S. Dist. LEXIS 181093 (N.D. Cal., Oct. 22, 2018)

Prior History: Valspar Corp. v. E.I. DuPont de Nemours & Co., 15 F. Supp. 3d 928, 2014 U.S. Dist. LEXIS 54963 (D. Minn., Apr. 21, 2014)


antitrust, titanium, dioxide, consumer, price-fixing, unfair, chain, certification, deceptive, quotation, indirect, paint, manufactured, enrichment, traceable, chemical, unjust

Civil Procedure, Jurisdiction, Subject Matter Jurisdiction, General Overview, Responses, Defenses, Demurrers & Objections, Motions to Dismiss, Constitutional Law, Case or Controversy, Standing, Elements, Class Actions, Class Members, Particular Parties, Antitrust & Trade Law, Private Actions, Requirements, Motions to Dismiss, Failure to State Claim, Preliminary Considerations, Federal & State Interrelationships, Erie Doctrine, Consumer Protection, Deceptive & Unfair Trade Practices, State Regulation, Trade Practices & Unfair Competition, State Regulation, Scope