Last Thursday, according to news reports today, U.S. District Judge Phyllis Hamilton in San Francisco dismissed the price-fixing complaint of Sun Microsystems and Unisys Corp. against several manufacturers of dynamic random access memory (DRAM) chips. Ever curious, Blawgletter took a peek at Her Honor’s opinion and and found, as we suspected, that it turns on the Foreign Trade Antitrust Improvements Act and the impact of the Supreme Court’s application of the FTAIA in F. Hoffman-La Roche Ltd. v. Empagran S.A., 542 U.S. 155 (2004). Judge Hamilton concluded that Sun and Unisys hadn’t done a good enough job differentiating between domestic harm and foreign harm arising from the price-fixing conspiracy. She ordered:
Specifically, and should plaintiffs choose to file an amended complaint, plaintiffs must amend their complaint to allege for each plaintiff: where the price for the DRAM purchases upon which plaintiffs base their claims was negotiated; where the DRAM purchases upon which plaintiffs base their claims were actually made; whether plaintiffs themselves, subsidiaries, or third parties made the actual purchases of DRAM; where any subsiciaries or third parties making DRAM purchases on plaintiffs’ behalf were located; where the DRAM was ultimately delivered or distributed. In addition, plaintiffs must specify which particular claims are being alleged by plaintiffs as indirect purchasers rather than direct purchasers.
Sun Microsystems, Inc. v. Hynix Semiconductor Inc., No. C 06-1665 PJH, slip op. at 8-9 (N.D. Cal. Apr. 5, 2007). Got that?
The court helpfully added in a footnote:
Plaintiffs have some degree of flexibility regarding the degree of specificity they should employ in alleging the existence and location of various worldwide subsidiaries and/or third party entities. The court is simply seeking to understand the volume of DRAM purchases and distribution taking place outside the U.S. as contrasted with that taking place inside the U.S., for which plaintiffs seek recovery of overcharges. To that end, if the number of plaintiffs’ subsidiaries and third party entities numbers into the hundreds, for example, it would be sufficient for plaintiffs to simply identify by country and percentage number the subsidiaries and third party entities making DRAM purchases or taking deliveries of DRAM on behalf of plaintiffs.
Simple, right? Sun and Unisys have until May 4 to amend their complaint. Blawgletter suspects that they’ll need every minute.
Barry Barnett
