On February 27, 2009, the Court heard argument on defendants’ motions to dismiss the direct purchaser plaintiffs’ first amended consolidated complaint, defendants’ motions to dismiss the indirect purchaser plaintiffs’ second amended consolidated complaint, and the direct purchaser plaintiffs’ motion to amend the complaint.
1
For the reasons set forth below, the Court DENIES defendants’ motions to dismiss the direct purchaser plaintiffs’ first amended complaint,
2
GRANTS IN PART and DENIES IN PART defendants’ motions
BACKGROUND
By order filed August 25, 2008,
On December 5, 2008,
Defendants have moved to dismiss the complaints on several grounds. Defendants contend that the complaints do not adequately allege each defendant’s participation in the alleged conspiracy, and that the case should be limited to the 2001-2006 time period, the same time period covered by the related criminal pleas. 3 Defendants raise additional arguments with respect to particular state law claims alleged by the indirect purchaser plaintiffs.
The direct purchaser plaintiffs seek leave to file a second amended consolidated complaint to add a new plaintiff, Texas Digital Systems, Inc. Defendants oppose the motion solely on the grounds articulated in the motion to dismiss the first amended consolidated complaint.
LEGAL STANDARD
Dismissal of a complaint may be based “on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.”
Balistreri v. Pacifica Police Dep’t,
Federal Rule of Civil Procedure 8 requires that a complaint contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.Civ.P. 8(a). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the ‘grounds’ of his ‘entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements
DISCUSSION
I. Sufficiency of allegations specific to each defendant
Defendants contend that the amended consolidated complaints do not adequately allege each defendant’s role in the alleged conspiracy. Defendants argue that the complaints continue to “lump together” the twenty-six different named defendants in general allegations referring to “defendants,” or groups of defendants sorted by country or corporate family. All plaintiffs counter that the new paragraphs added to the amended complaints sufficiently allege each defendant’s participation and role in the alleged conspiracy.
The Court finds that the amended consolidated complaints more than adequately allege the involvement of each defendant and put defendants on notice of the claims against them. Contrary to defendants’ suggestion, neither
Twombly
nor the Court’s prior order requires elaborate fact pleading. Further, the Supreme Court has recognized that “in complex antitrust litigation,” “motive and intent play leading roles,” and “the proof is largely in the hands of the alleged conspirators.”
Poller v. Columbia Broad. Sys., Inc.,
Defendants complain that the complaints still do not differentiate between related corporate entities. As described in the complaints, the alleged conspiracy was organized at the highest level of the defendant organizations and carried out by both executives and subordinate employees. The complaints allege that the conspiracy was implemented by subsidiaries and distributors within a corporate family, and that “individual participants entered into agreements on behalf of, and reported these meetings and discussions to, their respective corporate families.” DP-FACC ¶ 130; see
also
IPSACC ¶¶ 96, 100. Plaintiffs also allege that “the individual participants in conspiratorial meetings and discussions did not always know the corporate affiliation of their counter
II. Proper time period
Defendants contend that plaintiffs have not alleged any facts that would support a plausible inference of anticompeti-tive conduct before 2001. Defendants argue that the complaints allege that the “crystal” meetings only began in 2001, the guilty pleas in the criminal cases only cover the 2001-2006 time period, and that the “price dispersion” charts in the complaints do not show diminished price dispersion consistent with a conspiracy prior to 2001.
Plaintiffs counter that the complaints include numerous allegations about the period prior to 2001, including allegations that beginning in at least 1996, Hitachi, Sharp and Toshiba met or talked with at least one other defendant in order to agree on TFT-LCD product prices and the amount of TFT-LCD products each would produce. DP-FACC ¶ 4; IP-SACC ¶ 13 O. The complaints also allege indicia of price-fixing and market manipulation, such as unusual pricing practices, prior to 2001. See, e.g., DP-FACC ¶¶ 147, 150, 157; IP-SACC ¶¶ 153-157. Plaintiffs also argue that defendants’ arguments are misplaced at the pleadings stage of the litigation, and that there are any number of plausible reasons why the criminal guilty pleas would cover the 2001-2006 time period while still allowing for civil liability during the 1996-2001 period, such as criminal statutes of limitation and higher burdens of proof in criminal cases.
The Court finds that the complaints sufficiently allege anticompetitive conduct during the 1996-2001 time period, and will not limit the class period at this stage of the litigation. 4 Whether discovery bears out plaintiffs’ allegations regarding the earlier time period is a different matter, and defendants may renew their challenges to the pre-2001 claims upon a fuller factual record.
III. State law claims alleged in indirect purchaser plaintiffs’ second amended consolidated complaint
A. Virginia, Montana, and Puerto Rico
The indirect purchaser plaintiffs have alleged claims under the state antitrust laws of Virginia, Montana and Puerto Rico. Defendants move to dismiss these claims on the ground that these state antitrust laws are, pursuant to either statutory harmonization provisions or case law, required to be interpreted in accordance with federal antitrust law. Defendants contend that because indirect purchasers lack standing under federal law pursuant to
Illinois Brick,
and Virginia, Montana and Puerto Rico have not repealed
Illinois Brick
either by statute or case law, the indirect purchaser plaintiffs lack standing here. Defendants note that there are no anti
1. Virginia
With regard to Virginia, plaintiffs respond that the state harmonization provision, Va.Code Ann. § 59.1-9.17, was enacted prior to Illinois Bñck, at a time when indirect purchasers had standing under federal law. Thus, plaintiffs contend that the harmonization provision indicates legislative intent to allow indirect purchaser suits under the then-prevailing federal law. Plaintiffs also argue that the differences between the Virginia statute — namely the statement of the Virginia statute’s purpose, and the fact that treble damages are discretionary under the state statute— support a determination that Virginia law would permit indirect purchaser suits.
The Court disagrees, and finds that in light of Virginia’s harmonization provision requiring courts to interpret the Virginia Antitrust Act in harmony with federal law, and the absence of any Virginia authority holding that indirect purchasers have standing under the state statute, indirect purchasers may not seek damages under the Virginia statute. Virginia’s harmonization statute broadly mandates: “This chapter shall be applied and construed to effectuate its general purposes in harmony with judicial interpretation of comparable federal statutory provisions.”
See
Va.Code Ann. § 59.1-9.17;
see also Oksanen v. Page Memorial Hosp.,
2. Montana
In
Smith v. Video Lottery Consultants, Inc.,
Defendants contend that there is no facial difference between the standing provisions of federal and Montana law, and thus this Court must give “due weight” to Illinois Brick and dismiss the indirect purchaser plaintiffs’ claims under Montana law. The standing provision of the Montana statute allows any “person who is or will be injured” to sue for damages and injunctive relief. Mont.Code Ann. § 30-14-222. Section 4 of the Clayton Act, 15 U.S.C. § 15, allows “any person who shall be injured” to sue for damages and injunc-tive relief. Plaintiffs respond that Smith stands for the proposition that the Montana statute is generally broader than the Sherman Act, and thus that the Court should construe the Montana act to confer standing on indirect purchaser plaintiffs.
In the absence of any Montana authority holding that indirect purchaser plaintiffs have standing under Montana antitrust law, the Court declines to find so. Contrary to plaintiffs’ characterization of
Smith,
the Supreme Court of Montana did not hold, as a general matter, that the Montana statute is broader than federal law. Instead, the court distinguished between instances when state and federal law differed, and those sections of the Montana statute that were modeled after the Sherman Act. With regard to the latter, the
Smith
court instructed that where “the statutes are similar, we will give due weight to the federal courts’ interpretation of this type of alleged antitrust violation.”
3. Puerto Rico
Defendants similarly contend that plaintiffs’ claims under the Puerto Rico Antitrust Act are barred because that statute is to be construed in harmony with federal antitrust law, and there has been no repeal of
Illinois Brick.
Plaintiffs respond that the Puerto Rico legislature has specifically recognized the rights of “consumers” to bring class actions under the Puerto Rico Antitrust Act, and that thus indirect purchasers — who are consumers— have standing under the statute.
See
32 L.P.R.A. § 3342 (“There is recognized the right to merchants, to consumers of goods and services and to the Commonwealth of Puerto Rico to file a class suit on behalf of said merchants or consumers based on the Antitrust Act of the Commonwealth, §§ 257-274 of Title 10.”). Plaintiffs also cite
Arroyo-Melecio v. Puerto Rican American Insurance Co.,
The Court finds, for the same reasons discussed above, that the indirect purchaser plaintiffs lack standing under the Puer-to Rico statute. The Court is reluctant to find standing in the absence of an explicit Illinois Brick repealer, either by statute or case law. Accordingly, the Court GRANTS defendants’ motion to dismiss plaintiffs’ claims under the Puerto Rico antitrust statute.
B. Mississippi and Nevada
Defendants move to dismiss the indirect purchaser plaintiffs’ state law antitrust claims under Mississippi and Nevada law because plaintiffs have not alleged that any part of defendants’ conduct took place in those states. Mississippi’s antitrust laws prohibit understandings or agreements to “restrain trade,” “increase ... the price of a commodity,” or “hinder competition in the production, importation, ... or sale or purchase of a commodity.” Miss.Code Ann. § 75-21-1. Defendants note that the indirect purchaser plaintiffs allege that defendants’ conduct occurred mainly in the State of California, and that the complaint only alleges effects in Mississippi, not conduct.
The Court agrees with defendants that the Mississippi Antitrust Act requires some allegations of intrastate conduct, but finds that plaintiffs have sufficiently alleged such conduct. The complaint alleges that “LCD price competition was restrained, suppressed, and eliminated throughout Mississippi,” “LCD prices were raised, fixed, maintained and stabilized at artificially high levels throughout Mississippi,” and that plaintiffs “were deprived of free and open competition” and “paid su-pracompetitive, artificially inflated prices for LCD.” IP-SACC ¶ 269(a). Courts have held that similar allegations are sufficient to state a claim under the Mississippi Act.
See In re Graphics Processing Units Antitrust Litig. (“GPU II”),
Likewise, Nevada’s antitrust law states that “[mjonopolization of trade or commerce in this state, including, without limitation, attempting to monopolize or otherwise combining or conspiring to monopolize trade or commerce in this state” constitutes a “contract, combination or conspiracy in restraint of trade, and it is unlawful to conduct any part of such activity in this state.” Nev.Rev.Stat. Ann. § 598A.060(l)(e). Plaintiffs’ allegations
Accordingly, the Court DENIES defendants’ motion to dismiss plaintiffs’ Mississippi and Nevada state law antitrust claims.
C. Michigan, Florida, North Carolina and North Dakota
Defendants argue that plaintiffs’ unjust enrichment claims under Michigan, Florida, North Carolina, and North Dakota law must be dismissed because the law of these states require that plaintiffs have conferred a “direct benefit” on defendants, and the indirect purchasers cannot allege such a direct benefit.
1. Michigan
Citing
A & M Supply Co. v. Microsoft Corp.,
No. 274164,
Plaintiffs cite several cases, including a Michigan Supreme Court case, for the proposition that they need not allege a direct benefit to defendants to state an unjust enrichment claim in Michigan.
See, e.g., Kammer Asphalt Paving Co., Inc. v. East China Tp. Schools,
Here, plaintiffs’ allegations are similar to those alleged in In re Cardizem. The Court finds that plaintiffs have stated a claim for unjust enrichment under Michigan law, and DENIES defendants’ motion to dismiss this claim.
2. North Carolina
Defendants rely on
Effler v. Pyles,
Here, plaintiffs have alleged that they conferred a benefit on defendants by paying higher prices for LCD products than they would have in the absence of the alleged price-fixing conspiracy. The Court finds under Booe that these allegations are sufficient to state a claim, and DENIES defendants’ motion to dismiss plaintiffs’ unjust enrichment claims under North Carolina law.
3. North Dakota
Relying on
Apache Corporation v. MDU Resources Group, Inc.,
Plaintiffs argue that
Apache
does not establish that a “direct benefit” is a requirement under North Dakota law, and they emphasize language in
Apache
that “the essential element of recovering under a theory of unjust enrichment — receipt of a benefit by the defendant from the plaintiff which would be inequitable to retain without paying for its value — is present here.”
Id.
(internal quotations and citations omitted). Plaintiffs distinguish
Apache
on the ground that there the plaintiff had not in fact conferred any benefit
Accordingly, the Court GRANTS defendants’ motion to dismiss plaintiffs’ unjust enrichment claims under North Dakota law.
D. Unjust enrichment — Arkansas, Virginia, Montana and Puerto Rico
Defendants move to dismiss plaintiffs’ unjust enrichment claims under Arkansas, Virginia, Montana and Puerto Rico law, arguing that plaintiffs are improperly attempting to circumvent the antitrust laws of those jurisdictions, under which they lack antitrust standing.
6
Defendants contend that plaintiffs may not circumvent the restrictions on antitrust claims under Arkansas, Virginia, Montana and Puerto Rico law by reframing those claims as unjust enrichment actions, and they cite a number of cases which stand for that general proposition.
See, e.g., In re Microsoft Corp. Antitrust Litig.,
Plaintiffs rely on
In re Cardizem
to argue that in that case, “defendants made a similar argument that plaintiff indirect purchasers could not proceed with unjust enrichment claims in states where they could not recover under the state’s antitrust or consumer protection laws,” and that the court “resoundly rejected” that argument. Indirect Purchasers’ Opposition at 19. In fact, in
In re Cardizem,
the defendants moved to dismiss state law antitrust claims on a variety of grounds, but did
not
contend that indirect purchaser plaintiffs lacked antitrust standing based on
Illinois Brick
and harmonization with federal law.
See generally, In re Cardizem,
Plaintiffs also cite
D.R. Ward Construction Company v. Rohm & Haas Co.,
Here, plaintiffs have not cited any authority from Arkansas, Virginia, Montana or Puerto Rico holding that an indirect purchaser plaintiff may bring an unjust enrichment claim when that same claim would be barred under state antitrust law. In the absence of such authority, the Court declines to recognize such a claim because the Court agrees with defendants that permitting such claims would allow plaintiffs to circumvent limitations of state antitrust laws.
E. Unjust enrichment — Tennessee and Florida 7
Defendants argue that plaintiffs’ unjust enrichment claims under Tennessee law must be dismissed because plaintiffs have not alleged that they first exhausted their administrative remedies. Under Tennessee law, a plaintiff must demonstrate that he or she has exhausted “all remedies against the person with whom the plaintiff enjoyed privity of contract.”
Freeman Indus., LLC v. Eastman Chemical Co.,
Plaintiffs respond that futility is self-evident in these circumstances where the alleged price-fixing was done by the defendants in the manufacture of LCD panels and LCD products, and there has been no allegation that the resellers were involved in the conspiracy. The Court agrees that under the facts alleged in the complaint, futility is evident. Accordingly, the Court DENIES defendants’ motion to dismiss the Tennessee claim.
CONCLUSION
For the foregoing reasons, the Court hereby DENIES defendants’ motions to dismiss the direct purchaser plaintiffs’ first amended complaint, and GRANTS IN PART AND DENIES IN PART defendants’ motions to dismiss the indirect purchaser plaintiffs’ second amended complaint. (Docket Nos. 769, 771, 777, 778, 779, 782). The Court GRANTS the direct purchaser plaintiffs’ motion to amend the complaint, and VACATES the March 6, 2009 hearing scheduled for that motion. (Docket No. 806). The direct purchaser plaintiffs shall file the amended complaint by March 13, 2009.
IT IS SO ORDERED.
Notes
. The motion to amend was set for hearing on March 6, 2009. However, defendants' opposition to the motion to amend centers on the same issues which are decided in this order. Hence, the March 6, 2009 hearing on the motion to amend is VACATED and the motion will be decided in this order.
. The Court will issue a separate order on Tatung Company of America, Inc.’s motion to dismiss the direct purchaser plaintiffs' first amended consolidated complaint.
. Notwithstanding their entry of guilty pleas to felony violations of 15 U.S.C. § 1, defendants LG Display Co. Ltd., LG Display America, Inc., and Sharp Corporation have joined in the motions to dismiss the amended complaints for failure to meet the notice pleading requirements of the Federal Rules of Civil Procedure.
. Defendants have also moved to dismiss direct purchaser plaintiff Phelps Technology Inc. on the ground that Phelps’ claims arise out of pre-2001 purchases of TFT-LCD panels. Because the Court finds that the complaint's pre-2001 allegations are sufficient, the Court denies defendants’ motion to dismiss Phelps Technology Inc. on this ground.
. Indeed, defendants strenuously argue that plaintiffs' lower court authority should be disregarded because A & M was issued by the highest court in Michigan.
. Defendants contend — and plaintiffs do not disagree — that plaintiffs do not have standing to seek relief under Arkansas antitrust law because that law only permits predatory pricing claims alleging that items were sold "at less than cost” and does not create a private right of action for an alleged conspiracy to raise prices. See Ark.Code Ann. § 4-75-310; see also FTC v. Mylan Labs., Inc., 62 F.Supp.2d 25, 44-45 (D.D.C.1999).
. As previously indicated, plaintiffs have agreed to dismiss their Florida unjust enrichment claims. Therefore, the Court need not address the issue of exhaustion of remedies as to Florida law.