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In re Titanium Dioxide Antitrust Litigation

United States District Court, Fourth Circuit

August 14, 2013

IN RE TITANIUM DIOXIDE ANTITRUS LITIGATION THIS DOCUMENT RELATES TO ALL ACTIONS

MEMORANDUM OPINION

RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE

This class action concerns an alleged price-fixing conspiracy in the market for titanium dioxide.[1] The Plaintiff class representatives Haley Paint Company, Isaac Industries, Inc., and East Coast Colorants, LLC, doing business as Breen Color Concentrates, and the class of titanium dioxide purchasers whom they represent (together, “Plaintiffs”) claim that Defendants Kronos Worldwide Inc. (“Kronos”), and Cristal USA Inc., formerly known as Millennium Inorganic Chemicals, Inc. (“Millennium”), together with E.I. du Pont de Nemours & Co. (“DuPont”), Huntsman International LLC (“Huntsman”), and Tronox Inc. (“Tronox”), engaged in an unlawful conspiracy in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1, to fix, raise, or maintain the price of titanium dioxide in the United States.[2] Plaintiffs allege that as a consequence of the unlawful conspiracy, the Defendants were successful in charging artificially inflated prices for titanium dioxide.

Presently pending before this Court are two Motions for Summary Judgment filed by Kronos (ECF No. 432) and Millennium (ECF No. 439), as well as a Joint Motion for Summary Judgment submitted by the two Defendants jointly (ECF No. 442).[3] The parties’ submissions have been reviewed, and a hearing was held on June 25, 2013. For the reasons that follow, this Court DENIES the Motions for Summary Judgment filed by Kronos (ECF No. 432) and Millennium (ECF No. 439) and the Joint Motion for Summary Judgment (ECF No. 442), as it pertains to the remaining Defendants Kronos and Millennium.

BACKGROUND

This Court reviews the facts and all reasonable inferences in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007). Antitrust law, however, “limits the range of permissible inferences from ambiguous evidence, ” such that “conduct as consistent with permissible competition as with illegal conspiracy does not, standing alone, support an inference of antitrust conspiracy.” Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986). The Plaintiff class representatives, Haley Paint Company, Isaac Industries, and East Coast Colorants, LLC, doing business as Breen Colo Concentrates, are small purchasers of titanium dioxide. They bring this case under Section 1 of the Sherman Act, alleging that the Defendants, as well as DuPont, Huntsman, and Tronox Inc. (“Tronox”), [4] which are the market leaders in the production of titanium dioxide, conspired to fix prices during a period from February 1, 2003 to the present (the “Class Period”). They seek treble damages and injunctive relief under the Clayton Act, 15 U.S.C. §§ 4, 16.

The Plaintiff class representatives bring suit on behalf of a class defined as “[a]ll persons and entities who purchased titanium dioxide in the United States directly from one or more Defendants or Tronox, or from any predecessors, parents, subsidiaries, or affiliates thereof, between February 1, 2003, and the present.” Order Granting Mot. Certify 2, ECF No. 338. The Plaintiffs’ allegations center on the following evidence: the crisis in the titanium dioxide industry prior to the Class Period; DuPont’s entrance into a European trade group, the Titanium Dioxide Manufacturers Association (“TDMA”), which created greater opportunities for interaction among the pigment producers; the introduction of a statistics program, which allowed the Defendants to collect global industry information; the routine communication of confidential, commercially sensitive information to other firms and industry consultants during the Class Period; repeated price increase announcements allegedly executed in lockstep by the Defendants Millennium and Kronos, DuPont, Huntsman, and Tronox; and interfirm sales of titanium dioxide.

At the outset, this Court notes that the Plaintiffs’ case stands on circumstantial evidence alone—there is no “smoking gun” that explicitly reveals an agreement to conspire. Nevertheless, in the absence of an admission of guilt by the Defendants, the Plaintiffs may rely on purely circumstantial, or “ambiguous, ” evidence from which the existence of a conspiracy may be inferred. See In re High Fructose Corn Syrup Antitrust Litig., 295 F.3d 651, 654, 661-62 (7th Cir. 2002) (“[M]ost cases are constructed out of a tissue of [ambiguous] statements and other circumstantial evidence, since an outright confession will ordinarily obviate the need for a trial.”).

A. Declines in Price and Consumption of Titanium Dioxide: 1990s through 2001

In the 1990s, the titanium dioxide industry suffered substantial declines in consumption and price. See generally Pls.’ App. M, ECF No. 451-28 (documenting presentations, reports, e-mails, and articles on the subject of unprecedented declines in price and consumption of titanium dioxide). A Huntsman marketing report in 2001, for example, indicated that the real price per ton of titanium dioxide plummeted from $3, 200 in 1991 to $1, 900 in 2000. See Id . at entry 08/xx/2001 (no exact date in original). An editorial written by industry consultant Jim Fisher (“Fisher”) of International Business Management Associates, Inc. in 2002 confirmed these declines. See Id . at entry 05/24/2002; see also PX 53, ECF No. 451-88. Specifically, Fisher spoke of a 6 percent decline in world pigment consumption leading to lower price levels “not seen since the early 1990s.” Id. Echoing this evidence, a Millennium “Corporate Strategy” report described a decline in “industry profitability . . . driven by overcapacity and a decline in real prices . . . over the last decade.” Pls.’ App. M, entry 04/02/2003.

In particular, 2001 was considered a “disastrous” year. Id. at entry 06/11/2002. Two titanium dioxide plants—Millennium’s plant in Baltimore, Maryland and Kerr-McGee’s plant in Antwerp, Belgium—“were forced” to close in 2001, and the pigment producers were “bloodied badly” by falling prices and reduced profit margins. Id. at entries 02/01/2002 & 06/17/2002. Ian Edwards, DuPont’s Global Business Director, was quoted as saying that in 2001 “capacity utilization was lower than at any point in the 1990s, ” while Gary Cianfichi, Millennium’s Director of Sales for Europe, explained that prices declined by about 15 percent due to poor demand, utilization, and operating rates. Id. at entry 10/21/2002. As a Millennium “Press Briefing” presentation summarized, “TiO2 profitability hit an all time low” in the fourth quarter of 2011. Id. at entry 11/18/2002. Because of these declines in the market, the Plaintiffs argue that the Defendants were motivated to create a cartel.

B. Introduction of DuPont in the Titanium Dioxide Manufacturers Association and Formation of the Global Statistics Program in 2002

DuPont is the global leader in the titanium dioxide industry. Its pigment production occurs in North America, and it enjoys a cost advantage over its competitors because of its relatively inexpensive process of production called the chloride process. See generally Pls.’ App. O, ECF No. 451-30. Kronos, Millennium, Huntsman, and Kerr-McGee, on the other hand, are the major European producers of titanium dioxide. They are members of the Titanium Dioxide Manufacturers Association (“TDMA”), a trade group founded by the European producers of titanium dioxide and part of a larger trade association for the European chemical industry, the Conseil Européen des Fédérations de l’Industrie Chimique (“CEFIC”), based in Brussels, Belgium. See PX 9, ECF No. 451-44. Prior to the Class Period, the TDMA members participated in a statistics program through which they shared information regarding their titanium dioxide production. See id. Because the TDMA included only the European pigment producers, the program’s data was limited to the European section of the industry. See id.

DuPont sought membership in the TDMA, but until 2002 the TDMA restricted its membership to European producers. See Id . According to Millennium’s Gary Cianfichi, some TDMA members preferred to exclude non-European producers to prevent their access to the valuable production information shared in the TDMA’s statistics program, “especially consumption of TiO2 and inventory information.” Id. at MIC0024893. Other TDMA members, however, favored including DuPont in the group, because with the addition of DuPont, the statistics program could be expanded to include global production data. Id. Millennium, for one, advocated expanding the TDMA to include DuPont. See id.

As early as January 27, 2000, the TDMA held a meeting at which the members discussed the possibility of expanding the group’s membership to include non-European producers and forming a new global statistics program. See PX 1, ECF No. 451-36. Discussions continued at TDMA meetings throughout 2000 and 2001, with some members, in particular Kerr-McGee, voicing opposition to the inclusion of DuPont, while others remained convinced of its advantage to the industry. See, e.g., PX 2, ECF No. 451-37; PX 5, ECF No. 451-40; PX 11, ECF No. 451-46; PX 16, ECF No. 451-51. In September 2001, the TDMA’s General Committee held a meeting at CEFIC’s headquarters in Brussels. See PX 16 at MIC04280832. At that meeting, the members agreed to move forward with a new global statistics program (“the Global Statistics Program”), in which the current TDMA members and DuPont would participate. See PX 21 at MIC0325371, ECF No. 451-56. To include DuPont, the committee acknowledged that the TDMA would have to amend its operating rules. See PX 16 at MIC04280832. In addition, the committee determined that the Global Statistics Program would serve as the TDMA’s sole statistics program, and that the onus would be on individual TDMA members to ensure that their participation in the program complied with their home countries’ antitrust laws. See id.

At a TDMA General Committee meeting on January 24, 2002, in Saariselka, Finland, the TDMA members unanimously agreed to change the TDMA operating rules and permit DuPont to participate as an “Associate Member.” PX 29, ECF No. 451-64. An Associate Member could participate in the Global Statistics Program but would have no voting rights in the TDMA. Id. at MIC0025554. The concept of “Associate Membership” was specially created to permit DuPont, as well as a Japanese titanium dioxide manufacturer ISK, [5] to join the TDMA without having to open the trade group to other companies. Id.

Around the time of the January 24, 2002 meeting, industry consultant Jim Fisher was also proposing to the Defendants his own program for collecting sales data from all of the major titanium dioxide producers. See PX 27, ECF No. 451-62. As Fisher’s proposal explained, it would be “critical for producers to have accurate information about their success in the market as well as knowing share positions of their competitors for sales as well as for inventory levels.” Id. at IBMA-Fisher 000568. Just a few months later, Fisher authored an editorial for a pigment industry newsletter called “TiO2 Worldwide Update, ” which is issued by a company called ARTIKOL, in which he commented on the industry’s lack of profitability in 2001 due to increased pigment inventories and a “steady fall in pigment prices.” PX 53 at IBMA-Fisher 001783. “To avoid sharp swings in TiO2 pigment selling prices and uncontrolled growth in pigment inventories, ” Fisher recommended that pigment producers “more carefully monitor trends in end-use sectors and trends in demand for end-use products.” Id. at IBMA-Fisher 001784. Though the Defendants did not take up Fisher’s proposal, they moved forward with the TDMA’s Global Statistics Program. Fisher’s proposal and the changes to the TDMA in 2002 demonstrate that members of the titanium dioxide industry and industry consultants were becoming convinced of the need to share industry information.

Just days after the January 24, 2002 meeting, the Defendants increased the prices of titanium dioxide globally. DuPont announced a price increase on January 28, 2002. See PX 32, ECF No. 451-67. This increase was followed and matched by Millennium on January 30, 2002, Kronos on February 1, 2002, and Huntsman on February 12, 2002. See Pls.’ App. B, ECF No. 451-14 (cataloging the dates and contents of price increase announcements published by Millennium, Kronos, DuPont, Huntsman, and Tronox between January 28, 2002, and November 1, 2008).

At a TDMA meeting on September 24, 2002, DuPont and the Japanese titanium dioxide producer ISK were formally approved as Associate Members. See PX 59 at MIC0020230, ECF No. 451-94. By that time, the details of the Global Statistics Program were set. The TDMA agreed that the program would involve monthly reporting of the previous month’s sales production and inventory figures, starting with the October 2002 period, to CEFIC. PX 57 at KROWW00165909, ECF No. 451-92. CEFIC would then consolidate the data and return it to the TDMA members via e-mail. Id. at KROWW00165913. The program data that CEFIC collected would represent end use figures rather than regional figures, in order “to maintain data confidentiality.” See PX 59 at MIC0020230. Kronos warned the TDMA members that the statistics generated by the Global Statistics Program were confidential and could not be shared with anyone outside of the TDMA. PX 60, ECF No. 451-95. In addition, all of the TDMA members agreed to a “one-off” exchange of historical data for the years 2000 through 2002. PX 59 at MIC0020230.

The Plaintiffs argue that by expanding the TDMA’s membership to include DuPont and creating the Global Statistics Program, the Defendants were able to disaggregate the consolidated statistical data provided by CEFIC and track individual firm inventories, market share, and capacity utilization. See generally Pls.’ App. E. This theory is supported by an email written by Paul Bradley, a Huntsman employee, on September 18, 2002, in which he discussed the “new improved” Global Statistics Program. PX 58, ECF No. 451-93. Bradley wrote that with the data from DuPont, ISK, and the European TDMA members, the program would account for “75-80% of world production, ” and Huntsman would be able “to derive Kronos (Canada), Millennium (Brazil), and DuPont (Brazil/Mexico) production as a total number by difference (CEFIC Americas less USA).” Id. at HILLC006005282. Under the old statistics program, Bradley noted, they were left to estimate that production information. Id.

The Plaintiffs allege that because of the TDMA’s Global Statistics Program, the Defendants were able to accomplish what Fisher had predicted months earlier—“avoid sharp swings in pigment selling prices and uncontrolled growth in pigment inventory.” PX 53 at IBMA-Fisher 001784. Sections C and D of this Memorandum Opinion address the Defendants’ changed behavior following the initiation of the Global Statistics Program.

C. Parallel Price Increase Announcements

In Plaintiffs’ Appendix B, the Plaintiffs submit a detailed record of price increase announcements by the Defendants Millennium and Kronos, as well as DuPont, Huntsman, and Tronox, characterizing this behavior as a “paradigm shift.” See Pls.’ App. B, ECF No. 451-14. They point first to the series of announcements following the January 24, 2002 TDMA meeting in Saariselka, Finland, which this Court discussed above. Four days after that meeting, DuPont announced a price increase of $0.05 per pound, effective March 1, 2002.[6] Then Huntsman, Kronos, Millennium, and Tronox all followed suit with a price increase of the same amount and with the same effective date. See Pls.’ App. B at effective date 3/1/2002. Another series of price increase announcements was initiated on June 11, 2002, when DuPont announced a price increase of $0.06, to be effective on July 1, 2002. See Id . at effective date 7/1/2002. Within three days, Millennium and Kronos matched that price increase. See Id . Two weeks later, Huntsman announced a price increase of equal amount, effective August 1, 2002, which Tronox followed. See id.

These particular instances represent the beginning of a long pattern of seemingly coordinated price increase announcements by the Defendants Millennium and Kronos, as well as DuPont, Huntsman, and Tronox, during the Class Period. In 2003, the five pigment producers executed two sets of price increase announcements. In January 2003, Millennium, Kronos, DuPont, and Huntsman each announced a price increase of $0.06 per pound, to be effective on February 1, 2003. See Id . at effective date 2/1/2003. Tronox published a price increase announcement of the same amount, effective February 15, 2003, within two weeks of the Defendants’ announcements. See Id . at effective date 2/15/2003. The second wave of announcements came in September 2003, when DuPont led a price increase of $0.06, effective October 1, 2003. See Id . at effective date 10/1/2003. Defendants Millennium and Kronos, as well as Huntsman and Tronox, followed suit within twenty days. See id.

In 2004, Millennium, Kronos, DuPont, Huntsman, and Tronox again engaged in four parallel, or nearly parallel, [7] price increases. See Id . at effective dates 3/15/2004; 6/15/2004 & 7/1/2004; 10/1/2004; and 1/1/2005. These announcements differ from those of 2002 and 2003, however, because DuPont did not always announce first. While DuPont led one price increase on May 25, 2004, see Id . at effective dates 6/15/2004 & 7/1/2004, Tronox led a price increase in February 2004 and Millennium led two in September and November 2004. See Id . at effective dates 3/15/2004; 10/1/2004; and 1/1/2005. Each Defendant matched these price increase announcements within a relatively short period of time—and in one case, all of the pigment producers followed suit within one week. See Id . at effective date 3/15/2004.

From 2005 through 2010, the Defendants engaged in a similar pattern of pricing behavior. All in all, Millennium, Kronos, DuPont, Huntsman, and Tronox published parallel, or in a few cases nearly parallel, price increase announcements four times in 2005, [8]once in 2006, [9] twice in 2007, [10] three times in 2008, [11] three times in 2009, [12] and four times in 2010.[13] While DuPont initiated the price increases in most cases, Kronos and Millennium occasionally announced first. See generally Pls.’ App. B. Notably, Huntsman never led a price increase announcement until August 24, 2010, after the Plaintiffs filed their initial Complaint in this action on February 29, 2010.[14] On November 8, 2010, Huntsman initiated another price increase announcement, which all of the Defendants matched. See Id . at effective date 1/1/2011.

All of these price increase announcements occurred in relatively close proximity, but a few particularly demonstrate the five pigment producers’ tendency to execute the announcements in lockstep. For example, DuPont announced a price increase of $0.06 per pound on September 29, 2005, at 11:00 a.m. E.S.T., which Tronox matched within seven hours and Kronos matched within eight hours. See PX 134, ECF No. 415-169. That evening, Millennium’s Jim Clover sent an e-mail to Gary Cianfichi and others at Millennium, commenting that their competitors’ announcements were “too much fun to ignore.” PX 135, ECF No. 415-170. Millennium and Huntsman announced parallel price increases the next day. See Pls.’ App. B at effective date 10/1/2005. Similarly, DuPont announced a $0.06 per pound price increase, to be effective January 1, 2010, on December 7, 2009. See Id . at effective date 1/1/2010. Two days later, on December 9, 2009, Kronos, Millennium, and Tronox matched the increase, and Huntsman followed suit on December 11, 2009. See Id . These instances suggest that the Defendants engaged in little deliberation before making their pricing decisions.

The context surrounding these price increase announcements is also important to consider. The TDMA’s General Committee met in person three times a year, almost always in January, May, and September. See generally Pls.’ App. A (cataloging competitor contacts during the Class Period). The Plaintiffs proffer that each price increase announcement came within sixty days of a TDMA General Committee Meeting. See Id . This fact is of limited value, considering that with three meetings in January, May, and September, a sixty-day period before and after each meeting covers nearly every day of the year. The Plaintiffs also submit, however, that 88 percent of the price increase announcements listed in Plaintiffs’ Appendix B came within 30 days of a General Committee meeting of the TDMA. See Pls.’ Apps. A & B. This fact deserves greater attention, as it suggests that the Defendants may have used the TDMA meetings to communicate their pricing plans, coordinate price increases, and confirm that each competitor would follow the leader on a price increase.

A comparison of the price increases documented in Plaintiffs’ Appendix B with those that occurred in the prior eight-year period gives support to the Plaintiffs’ characterization of the Defendants’ changed behavior as a “paradigm shift.” The Plaintiffs submit Plaintiffs’ Exhibit 92, a chronology of titanium dioxide price increases in the United States from 1998 through 2004. See PX 92, ECF No. 451-127. Whereas Appendix B documents eight price increase episodes involving all of the pigment producers at issue—the Defendants Millennium and Kronos, DuPont, Huntsman, and Tronox—during a three-year period from January 2002 through January 2005, there was only one industry-wide increase in 2000 and none in 2001. Compare Pls.’ App. B at effective dates 3/1/2002-1/1/2005, with PX 92. Even more to the point, during the entire 1994-2001 period, Millennium’s predecessor SCM, Kronos, DuPont, Huntsman, and Tronox together engaged in just one parallel price increase, in 1995. See PX 92. There were just three price increases in which four of the five pigment producers at issue participated—in 1994, 1998, and 2000. See Id . These figures stand in stark contrast to the nine-year period from 2002 through 2010, during which all of the pigment producers participated in twenty-five parallel price increase announcements. See App. B. Finally, while there was a rescinded price increase by Kronos in September 1994, see PX 92, no price increase was rescinded by any of the pigment producers during the entire Class Period. After a careful analysis of the preceding period of eight years—before DuPont joined the TDMA and the Global Statistics Program was initiated—it becomes clear that the frequency and nature of the Defendants’ price increase announcements changed dramatically.

Finally, the Plaintiffs urge that these price increases occurred during a period in which demand for titanium dioxide in the United States was either low and stable, or in decline. See generally Pls.’ App. K. The Plaintiffs also emphasize that this period was marked by excess industry capacity. See generally Pls.’ Apps. D & K. These market factors would generally result in reduced prices. Thus, the Plaintiffs contend, the titanium dioxide industry was conducive to price-fixing.

D. Increased Interfirm Communications and Other Evidence of Cartel Practices

The Plaintiffs also proffer a mass of evidence demonstrating increased communications among competitors, alleged signaling by competitors to each other of their intent to increase price, and the sharing of firm-specific titanium dioxide information with competitors and industry consultants, especially Jim Fisher, during the Class Period. See, e.g., Pls.’ App. A, ECF No. 451-13 (recording industry-wide and multi-lateral meetings of the pigment producers); Pls.’ App. C, ECF No. 451-15 (documenting statements by the Defendants allegedly indicating motive, contact with competitors and industry consultants, parallel price increases, reliance on the Global Statistics Program data, and price signaling); Pls.’ Apps. F1, F2 & F3, ECF Nos. 451-19, 20 & 21 (detailing communications between the Defendants and industry consultant Jim Fisher); Pls.’ App. J, ECF No. 451-25 (noting alleged price signaling by the Defendants). In the interest of brevity, this Court focuses its attention on Plaintiffs’ Appendix C, which is the most concise record of the issues that the Plaintiffs contend defeat summary judgment and raise genuine issues of material fact.

After careful review, this Court finds that Plaintiffs’ Appendix C reveals the following: (1) statements by the Defendants that are suggestive of cartel behavior, including references to greater discipline and more informed decision making as a result of the sharing of production information; (2) announcements of price increases seemingly followed in lockstep, coupled with statements by the Defendants suggesting a goal of stabilizing relative market share in the industry; (3) the routine sharing of information between the individual firms and industry consultant Jim Fisher; (4) increased communications regarding price increases shortly after the Defendants received the monthly consolidated data of the Global Statistics Program, as well as statements by the Defendants emphasizing the confidential nature of the program; and (5) statements by the Defendants indicating their awareness that their behavior might appear collusive. Some of the most demonstrative items included in Plaintiffs’ Appendix C are described herein.

1. Greater Discipline Statements by the pigment producers emphasizing industry discipline and more informed decision making suggest that the Defendants may have been engaging in cartel behavior. Around the time of a TDMA General Committee meeting held in Brussels on September 27, 2001, Millennium produced a “Strategic Planning Presentation” and included a slide titled “TiO2 Industry Trends.” See PX 22 at MIC04080305, ECF No. 451-57. The list of “Trends” included “[p]ossibly more discipline on pricing and capacity.” Id. On April 17, 2002, David Vercollone of Millennium wrote to his colleagues at Millennium that the TDMA’s Global Statistics Program was “an important effort for us to get the industry to make more informed decisions” and “the best opportunity we have in structuring industry data for all our collective needs.” See PX 45 at MIC05771277, ECF No. 451-80. Vercollone’s uses of “we” and “our” suggest he was speaking about the benefits of the Global Statistics Program to the members of the TDMA, not just Millennium.

At an industry-wide conference in Miami, Florida in February 2003, Millennium’s former Vice President of Global Coatings Bruce Zwicker gave a presentation in which a slide referred to possible industry “tightness” in the future. See PX 69 at MIC00078617, ECF No. 451-104. Ian Edwards, DuPont’s Global Business Director for titanium dioxide, also presented at the conference. See PX 223, ECF No. 451-258. Subsequently, Edwards explained in an e-mail to others at DuPont that his “goal at the time had been to stress the need for the industry to get its’ [sic] financial house in order.” Id. Edwards added that the “written version, ” which he attached to the e-mail, “is fairly cautious in how [he] said that— verbally at the conference [he] was more direct.” Id.

Finally, Millennium’s John Hall sent an e-mail on December 14, 2007, to his colleague Jim Clover and others at Millennium regarding the need to “improve price.” PX 179, ECF No. 451-214. Hall recommended that Millennium “[b]e disciplined, keep [its] volume, do not take others.” Id. When asked at a deposition what Hall meant by “do not take others, ” he explained that he was referring to the volume of titanium dioxide sales of Millennium’s competitors. PD6, Hall Dep. 48-49, ECF No. 451-328.

2. Coordinated Price Increases with the Goal of Stabilizing Market Share Plaintiffs’ Appendix C also contains numerous statements by the Defendants that are suggestive of coordinated price increase announcements, with a goal of stabilizing market share. On January 7, 2002, Dave Young of DuPont sent an e-mail to his colleagues regarding a “Price Increase Initiative.” PX 25, ECF No. 451-60. Under the heading “Timing, ” Young described two alternatives. Id. The first was to announce the price increase on “February 4, effective March 1.” Id. The second alternative involved a price increase announcement on “January 25, effective February 15.” Id. The latter option, Young wrote, “could give our competitors a change [sic] to announce ‘differently’ on March 1.” Id. On June 14, 2002, Connie Hubbard, DuPont’s Competitive Intelligence Manager, drafted an entry in DuPont’s “Competitive Intelligence” database regarding a discussion she had with industry consultant Jim Fisher on June 7, 2002, several days before DuPont’s June 11, 2002 price increase announcement. See PX 56, ECF No. 451-91. In the entry, Hubbard noted that Jim Fisher had called her to confirm that Huntsman had announced a “$150/T increase” in North America. Id. Hubbard noted that “[a]s this call came before the DuPont announcement, [she] told [Fisher] that [she] had not seen any press release or announcement on Huntsman (or DuPont) and asked him his source.” Id.

On August 25, 2004, Millennium’s European sales director Tim Edwards sent an email to Gary Cianfichi, regarding a draft price increase announcement. See PX 97, ECF No. 451-132. Edwards suggested that the October 1 announcement date was “a bit early, ” while an announcement on November 1 would give “others [a] chance to get on their horses.” Id. On September 13, 2004, Bob Lee, Millennium’s Chief Executive Officer, as well as Millennium’s Deputy General Counsel and Director of Corporate Development, met with Tom Keenan, the President of Huntsman, and Mahomed Maiter, Huntsman’s Vice President, in Baltimore, Maryland. See PX 100, ECF No. 451-135. The next day, Millennium’s Gary Cianfichi sent an e-mail to colleagues, stating “now that we have competition on board for the Oct 1 price increase announcement, please relook at your agents[’] commissions.” PX 101, ECF No. 451-136.

DuPont’s DeLisle Plant in southern Mississippi was shut down due to Hurricane Katrina in August 2005. In November 2005, Tronox’s Vice President of Investor Relations Robert Gibney sent an e-mail to colleagues about DuPont’s strategy regarding the DeLisle Plant. See PX 138, ECF No. 451-173. According to a report by financial firm JP Morgan, the head of DuPont’s coating division stated that DuPont would “bring DeLisle up gradually and NOT flood the market with product.” Id. Gibney also wrote that DuPont would not be “aggressively pursuing their lost share and will be diligent in bringing the volume back to the market.” Id.

On July 9, 2007, Michael Card of Millennium sent an e-mail to colleagues with the subject line “2008 Sales Plan.” See PX 170, ECF No. 451-205. Card wrote that Millennium’s market share was 20 percent in the year to date, while the company’s historical share was 21 percent. Id. Regarding the market share that Millennium was “not getting, ” Card stated, “[w]e should have this extra share—customers have been and want to buy this from us. Competitors will let us have this.” Id. at MIC01374700.

On or about November 21, 2007, Millennium’s Jim Clover made a handwritten notation reading, “Don’t steal Dup tonnes.” PX 177, ECF No. 451-212.

Huntsman’s Mike Quinn sent an e-mail to colleagues on June 3, 2008 with the subject line “Pricing Posture.” PX 194, ECF No. 229. Quinn explained, “There is strong evidence that pricing of TiO2 in plastics markets will increase effective June 1. . . . Our position at this time is that we support implementing a 3 cpp price increase this month . . . but will defer to the market competitives brought forth by the larger TiO2 suppliers.” Id. “Remember, ” Quinn added, “we can’t lead a price increase but we sure can kill it; and we won’t be left behind if others push the pricing up.” Id.

Lastly, on December 4, 2008, Joe Maas of Kronos sent an e-mail to his colleagues about Kronos’s November 2008 sales. PX 219, ECF No. 451-254. Mass. wrote that the company’s sales volume “was the lowest November volume since 1998 and the worst sales volume month since December 2003!” Id. The “good news, ” Maas explained, was that Kronos’s “average price worldwide increase[d] by 17 US$/MT and we have now realized since May a total average price increase of 205 US$/MT.” Id. He concluded, “[i]t appears that we and our competitors are prepared to reduce production rather than chase phantom volume.” Id.

3. Communications with Jim Fisher The Plaintiffs document numerous examples of communications between the Defendants and Jim Fisher in which sensitive information was exchanged or the Defendants acknowledged Fisher’s role in sharing industry information. Under the Plaintiffs’ theory, Jim Fisher acted as a conduit, helping to facilitate the alleged price-fixing conspiracy. For example, on May 23, 2002, Joe Maas of Kronos sent an e-mail to Jim Fisher noting that his family was looking forward to their vacation at Fisher’s new home. PX 52, ECF No. 451-87. Maas also mentioned “on a business note” that he had heard Huntsman announced a ...


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