In re Titanium Dioxide Antitrust Litigation, 962 F. Supp. 2d 840

Background

This antitrust class action concerns alleged price fixing of titanium dioxide by major producers and alleges inflation of prices during Feb. 1, 2003 to present.
Plaintiffs Haley Paint, Isaac Industries, and East Coast Colorants sue Millennium, Kronos, DuPont, Huntsman, and Tronox as coconspirators under Sherman Act §1.
A 2012 class certification granted a broad class of U.S. purchasers, later challenged for contract provisions that could preclude participation.
Approximately 320 class members have contracts containing arbitration, forum selection, class action waivers, or jury trial waivers; defendants seek to enforce these against those members.
This opinion grants the defendants’ motions to compel arbitration, dismiss for improper venue, strike jury demands, and renew an amendment to the class definition.
The court concludes the class must be amended to exclude contractually bound members and to dismiss or compel arbitration accordingly.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Can nonsignatories enforce arbitration and related clauses via equitable estoppel?	Plaintiffs rely on conspiratorial conduct and direct relation to written agreements.	Millennium and Kronos may enforce provisions against signatories and seek estoppel-based enforcement against related contract clauses.	Yes; nonsignatories may compel arbitration and enforce forum and jury waivers via equitable estoppel.
Are the asserted arbitration provisions broad enough to cover antitrust claims and retroactive in effect?	Arbitration clauses do not clearly cover Sherman Act claims or predate the agreements.	Clauses are broad, retroactive where stated, and should apply to the antitrust claims.	Arbitration provisions broadly cover the antitrust claims and apply retroactively where intended.
Are forum selection and jury trial waivers enforceable against the class?	Forum selections and jury waivers should not preclude class actions or claims arising under Sherman Act.	Forum selection clauses and jury waivers are enforceable and preclude proper venue and jury trials.	Yes; forum selection clauses are enforceable and require dismissal for improper venue; jury trial waivers are enforceable and objections are sustained.
Should the class definition be amended under Rule 23 due to contract-based prohibitions against participation?	Class certification remains appropriate with broader definitions.	Members with enforceable clauses render some claims atypical and predominate individual issues; class should be narrowed.	The class definition is amended to exclude contractually bound members, making the class compliant with Rule 23.

Key Cases Cited

Aggarao v. MOL Ship Mgmt. Co., 675 F.3d 355 (4th Cir. 2012) (equitable estoppel when signatory and nonsignatory conduct coordinated)
MS Dealer Serv. Corp. v. Franklin, 177 F.3d 942 (11th Cir. 1999) (equitable estoppel: concerted misconduct justifies enforcing arbitration)
Cotton Yarn Antitrust Litig., 505 F.3d 274 (4th Cir. 2007) (broad arbitration clause may encompass Sherman Act claims)
JLM Indus., Inc. v. Stolt-Nielsen SA, 387 F.3d 163 (2d Cir. 2004) (arbitration clause scope governs antitrust claims)
Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (Supreme Court, 1983) (arbitration policy: doubts resolved in favor of arbitration)
Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (Supreme Court, 1991) (arbitration clauses apply to individual contractual disputes and federal claims)
Am. Bankers Ins. Grp. v. Long, 453 F.3d 623 (4th Cir. 2006) (equitable estoppel supports enforcement of arbitration/forum clauses in conspiracy context)
Brantley v. Republic Mortg. Ins. Co., 424 F.3d 392 (4th Cir. 2005) (test for equitable estoppel in arbitration agreements)