Home Depot U.S.A., Inc v. E.I. DuPont De Nemours & Company

Background

Home Depot alleged that E.I. du Pont de Nemours and Co., Cristal USA, Inc., Huntsman International, LLC, and Kronos Worldwide, Inc. participated in a conspiracy to fix titanium dioxide prices. The opinion states that this was one of several antitrust actions based on the alleged conspiracy and that the actions shared substantially the same record.

After the Third Circuit affirmed summary judgment for defendants in a related case, the defendants in this case sought permission to file an early summary-judgment motion. They argued that the legal standards applied in that decision were the same as those used in the Ninth Circuit and therefore controlled this case. The court later denied their summary-judgment motion, answering both of the questions the defendants had presented in the negative. The court concluded that the Third and Ninth Circuit standards were not identical and that, under Ninth Circuit law, Home Depot had presented evidence from which a reasonable factfinder could conclude that thirty-one parallel price-increase announcements resulted from a price-fixing conspiracy rather than lawful oligopoly conduct.

Motion for Interlocutory Appeal

DuPont and Cristal asked the court to certify this question for an immediate, nonfinal appeal: what standard courts should use at summary judgment when a Sherman Act Section 1 conspiracy claim relies on circumstantial evidence, the market is an oligopoly, and the alleged scheme is plausible.

Under 28 U.S.C. § 1292(b), certification requires a controlling question of law, substantial grounds for disagreement about that question, and a showing that immediate review may materially advance the end of the litigation. The court explained that this procedure is reserved for exceptional circumstances and that the party seeking certification bears the burden of satisfying these requirements.

The court found the motion timely because it was filed about one month after the sealed summary-judgment order and ten days after the public version. It nevertheless rejected the motion on the other requirements. The proposed question was not one of the questions presented in the defendants’ summary-judgment motion. The court said the defendants essentially disagreed with how it had applied settled Ninth Circuit precedent to the facts, and that applying law to a particular set of facts generally is not suitable for immediate review.

The court also found that the proposed issue was not sufficiently novel. The Ninth Circuit had a developed body of law on summary judgment in antitrust cases, and the absence of a decision involving the exact facts did not create a new legal issue. Finally, the court found that an immediate appeal would not materially advance the litigation. Even if the Ninth Circuit adopted a different standard, the case would likely return to the district court for new briefing and argument. The district court would still have to independently decide whether summary judgment was warranted, and it was uncertain that the defendants would prevail under the proposed standard.

Disposition

Judge Beth Labson Freeman denied the motion to certify a question for interlocutory appeal. The court also vacated the hearing scheduled for December 19, 2019 because it decided the motion without oral argument.