Valspar Corp. v. E.I. Du Pont De Nemours & Co., 873 F.3d 185

Background

Valspar, a large purchaser of titanium dioxide (TiO2), sued DuPont alleging a 2002–2013 horizontal price‑fixing conspiracy that caused an average 16% overcharge and $176 million in damages from purchases of DuPont product.
The alleged “conspiracy” evidence centered on 31 parallel public price‑increase announcements during the relevant period (part of 81 announcements over 12 years) and DuPont’s 2002 participation in industry groups (TDMA/CEFIC) and a Global Statistics Program (GSP).
DuPont moved for summary judgment in the District of Delaware; the court applied Third Circuit precedent and granted summary judgment for DuPont, finding no evidence of an actual agreement.
On appeal, the Third Circuit affirmed, applying a heightened circumstantial‑evidence analysis in oligopoly §1 cases: parallel conduct plus “plus factors” and especially non‑economic, traditional‑conspiracy evidence are required to survive summary judgment.
The majority found: (1) parallel announcements were consistent with lawful oligopolistic conscious parallelism; (2) the first two plus factors (motive and actions against self‑interest) largely restate interdependence; and (3) Valspar failed to produce sufficient traditional conspiracy (non‑economic) evidence to make conspiracy more likely than not.
A dissent argued the record (31 parallel announcements, timing, emails, consultant contacts, trade‑association meetings, intercompany sales, and market stability) raised genuine factual disputes that should go to a jury.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether 31 parallel price‑increase announcements permit an inference of a §1 conspiracy in an oligopoly	Valspar: the frequency and close timing of announcements is implausible absent agreement	DuPont: parallel pricing reflects lawful conscious parallelism in an oligopoly and contractual/market reasons for matching	Held: Parallel announcements alone insufficient; consistent with interdependence and market realities, so no inference of agreement
Role of plus factors in oligopoly §1 cases	Valspar: plus factors (motive, actions against interest, traditional evidence) taken together support conspiracy inference	DuPont: market structure explains motive/actions; plaintiff must show traditional, non‑economic evidence of an actual agreement	Held: First two plus factors de‑emphasized; plaintiff failed to show traditional conspiracy evidence
Standard for circumstantial proof at summary judgment (Matsushita/Third Circuit approach)	Valspar/dissent: courts should allow reasonable inferences from circumstantial evidence and send close disputes to a jury	DuPont/majority: antitrust law limits inferences where conduct is consistent with lawful competition; plaintiff must show evidence that conspiracy is "more likely than not" in oligopoly context	Held: Third Circuit standard applied—caution inferences; plaintiff must produce non‑economic plus factors making conspiracy more likely than not
Use of trade association data/consultants and internal emails as proof of agreement	Valspar: GSP data sharing, consultant communications, TDMA meetings, and emails indicate coordination and assurances of common action	DuPont: GSP data were aggregated/anonymized (no price data); consultants and meetings are consistent with competitive information‑gathering; emails reflect internal deliberation and conscious parallelism	Held: These materials were insufficient to show an actual agreement; do not overcome reasonable, non‑conspiratorial explanations

Key Cases Cited

Monsanto Co. v. Spray‑Rite Serv. Corp., 465 U.S. 752 (Sup. Ct.) (§1 requires agreement; unilateral conduct not §1 violation)
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (Sup. Ct.) (limits permissible inferences from ambiguous evidence in §1 cases)
Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877 (Sup. Ct.) (distinguishing per se and rule‑of‑reason analyses)
United States v. Socony‑Vacuum Oil Co., 310 U.S. 150 (Sup. Ct.) (horizontal price fixing is per se illegal)
Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209 (Sup. Ct.) (discussion of oligopolistic conduct and limits of antitrust relief)
In re Flat Glass Antitrust Litig., 385 F.3d 350 (3d Cir.) (oligopoly interdependence caution; examples where circumstantial evidence warranted trial)
In re Chocolate Confectionary Antitrust Litig., 801 F.3d 383 (3d Cir.) (parallel pricing + plus‑factor framework; application of Matsushita in Third Circuit)
In re Baby Food Antitrust Litig., 166 F.3d 112 (3d Cir.) (parallel conduct in oligopoly can be necessary but not dispositive; plus‑factors required)
Petruzzi’s IGA Supermarkets, Inc. v. Darling‑Del. Co., 998 F.2d 1224 (3d Cir.) (circumstantial evidence can suffice; direct evidence not required)
Clamp‑All Corp. v. Cast Iron Soil Pipe Inst., 851 F.2d 478 (1st Cir.) (difficulty of judicially enforcing interdependent pricing)