MEMORANDUM OPINION
This class action concerns an alleged price-fixing conspiracy in the market for titanium dioxide.
On August 6, 2013, this Court ordered a stay of all proceedings between the Plaintiffs, DuPont, and Huntsman, as those parties have reached agreements in principle to settle and release the class claims against DuPont and Huntsman. See Stay Order, ECF No. 484. In a Memorandum Opinion and Order issued on August 14, 2013 (ECF Nos. 498 & 499),
The parties’ submissions have been reviewed, and a hearing was held on June 25, 2013. In addition, the Court has reviewed the supplemental memoranda regarding the impact of the DuPont and Huntsman settlements. For the reasons that follow, the Defendants’ Motion to Compel Arbitration and Stay Proceedings, Motion to Dismiss for Improper Venue, Motion to Strike, and Renewed Motion to Amend the Class Definition (ECF No. 423) is GRANTED.
BACKGROUND
The facts of this case are fully set forth in the Memorandum Opinion on the Defendants’ Motions for Summary Judgment, issued on August 14, 2013 (ECF No. 498). For purposes of this Motion, the Court recites facts pertinent to the issue at hand: whether arbitration clauses, forum selection clauses, and class action and jury waivers entered into by some of the class members may be enforcеd against them, to the extent that they are precluded from pursuing their claims as part of this class action litigation.
The Plaintiff class representatives, Haley Paint Company, Isaac Industries, and East Coast Colorants, LLC, doing business as Breen Color Concentrates, are small purchasers of titanium dioxide. They bring this case under Section 1 of the Sherman Act, alleging that the Defendants Millennium and Kronos, as well as DuPont, Huntsman, and Tronox, 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”). On February 9, 2010, the Plaintiffs filed suit, and they submitted an Amended Consolidated Complaint (ECF No. 51) on April 12, 2010, initiating this class action lawsuit.
On August 28, 2012, this Court issued a Memorandum Opinion (ECF No. 337),
All 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 (“Class Period”). Excluded from the Class are Defendants, their coconspirators, parent companies, predecessors, subsidiaries and affiliates, and all governmental entities.
In their оpposition to class certification, the four original Defendants argued that some putative class members purchased titanium dioxide pursuant to contracts containing mandatory arbitration clauses, forum selection clauses, and class action and jury trial waivers, all of which would contractually bar them from participating in this class action. See Class Cert. Mem. Op. 40. Though these contractual provisions did not defeat class certification, this Court left open the possibility of a later amendment to the class certification Order if certain members’ contracts rendered them atypical of the class. Id.
On November 2, 2012, the four original Defendants moved to amend the class definition (ECF No. 351). They asserted that the class should be defined to exclude any putative class members who would be contractually precluded from participation in this class action litigation. In a Memorandum Opinion,
On March 18, 2013, the Court-appointed Notice Administrator reported that after eleven persons properly opted out of the class, the final class was composed of 537 unique entities. See Sherwood Deck, ECF No. 403. With that information, the remaining Defendants Millennium and Kronos have moved this Court to enforce the contractual provisions that they argue bar some 320 class members from participating in this class action. They specifically request that this Court (1) order the class members with claims subject to an arbitration clause to proceed, if at all, in arbitration; (2) dismiss the claims of class members whose purchases were subject to mandatory forum selection provisions that render this Court an improper forum; and (3) strike the jury trial demands of class members that have contractually waived their rights to a jury trial. The clauses asserted by the Defendants are described herein.
DuPont: Approximately 215 titanium dioxide purchasers of DuPont signed contracts with mandatory arbitration clauses, class action waiver clauses, or forum selection clauses. See Defs.’ Ex. 3, ECF No. 460-2; Daney Deck & DuPont Exs. 1-58, ECF No. 426 & 426-1 through 426-58. Some of these contractual clauses were individually negotiated. See Daney Deck ¶ 4 (listing thirty-one DuPont customers who agreed to formal written contracts containing an arbitration clause); id. ¶ 17 (naming twenty-nine DuPont customers who signed class action waivers as part of formаl written agreements); id. ¶ 19 (identifying twelve DuPont customers with forum selection clauses in their contracts). The majority of the clauses, however, are
Huntsman: Approximately 109 Huntsman customers signed contracts containing forum selection clauses, jury waivers, or arbitration clauses. See Defs. Ex. 3; Quinn Decl. & Huntsman Exs., ECF No. 427 & 427-1 through 427-40. Many of Huntsman’s supply agreements contain a set of “General Terms and Conditions,” including a jury waiver for “any action, suit or proceeding arising out of or relating to” the agreement. See Quinn Decl. ¶ 5; Huntsman Exs. 1-5. Some supply agreements also provide that the parties “irrevocably submit to the exclusive jurisdiction” of courts other than this Court-to wit, the United States District Court for the Southern District of Texas; the Texas State District Courts of Harris County, Texas; the United States District Court for the District of Delaware; or the state Chancery Court in Wilmington, Delaware. See id. All in all, twenty-five supply agreements contain these clauses. Id. Moreover, nine of Huntsman’s distributors agreed to waive their right to trial by jury and submit to the exclusive jurisdiction of the District Court for the Southern District of Texas or State District Courts in Harris Cоunty, Texas. See Quinn Decl. ¶ 6; Huntsman Exs. 26-34.
Huntsman also sold titanium dioxide to the Guild CPO, Inc. (“the Guild CPO”), an organization made up of paint and coatings manufacturers and providing cooperative purchasing services for its members. See Quinn Decl. ¶ 7. A total of eighty-three Guild CPO members agreed to waive “any right it may have to a trial by jury” and “irrevocably submit to the exclusive jurisdiction” of the Southern District of Texas and the Texas state courts of Harris County. See id. ¶ 8.
Finally, Huntsman and titanium dioxide customer GAF agreed pursuant to their contract that “[a]ny controversy or claim arising from or relating to this Agreement shall be settled by final and binding arbitration by a single arbitrator.” See id. ¶ 9; Huntsman Ex. 38.
Kronos: Approximately nine Kronos customers entered into contracts for the purchase of titanium dioxide that included jury waivers, mandatory arbitration clauses, or forum selection provisions. See Defs.’ Ex. 3; Sanzalone Decl. & Kronos Exs. 1-21, ECF No. 428 & 428-1 through 428-21. Though Kronos’s standard supply agreements do not contain these clauses, customers sometimes request that they be included. See Sanzalone Decl. ¶ 5 (identifying 1 seven Kronos customers with arbitration clauses in their contracts); id. ¶ 7 (listing two Kronos customers who agreed
Millennium: Finally, an estimated seven entities who purchased titanium dioxide from Millennium agreed to mandatory arbitration provisions or forum selection clauses. See Defs.’ Ex. 3; Clover Deck, ECF No. 425 & Millennium Exs., ECF No. 425 & 425-1 through 425-7. For example, some Millennium contrаcts provide that all disputes between the parties should be arbitrated at The Hague, Netherlands, see Millennium Exs. 1-2, or in Baltimore, Maryland, see Millennium Ex. 7. Millennium’s contract with customer Weyerhauser Company includes a forum selection clause requiring claims to be litigated in the State of Washington. See Millennium Ex. 6.
In addition to asserting the subject contractual clauses against the 320 identified current class members,
All 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 (“Class Period”), except those 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, during the Class Period pursuant to a contract containing one or more of the following: (i) an arbitration clause, (ii) a clause restricting the litigation of disputes to courts other than the U.S. District Court for the District of Maryland, (in) a class action waiver clause, or (iv) a provision waiving the right to a jury trial. Also excluded from the Class are Defendants, their coconspirators, parent companies, predecessors, subsidiaries and affiliates, and all governmental entities.
Defs.’ Renewed Mot. to Amend Class Def. Mem. 4, ECF No. 424-2 (emphasis on proposed amendment added).
For the reasons stated below, the Defendants’ Motion to Compel Arbitration and Stay Proceedings, Motion to Dismiss for Improper Venue, Motion to Strike Jury Trial Demand, and Renewed Motion to Amend the Class Definition (ECF No. 423) is GRANTED.
I. Enforcement by Nonsignatory Defendants Under a Theory of Equitable Estoppel
At the outset, this Court finds that, based on principles of equitable estoppel, Defendants Millennium and Kronos can enforce not only those arbitration clauses, forum selection clauses, and class action and jury waiver provisions to which their approximately sixteen customers agreed, but also the subject clauses contained in the contracts of the settling parties DuPont and Huntsman. The question whether a nonsignatory may compel a' signatory to arbitrate claims is governed by state law. See Arthur Andersen LLP v. Carlisle,
The United States Court of Appeals for the Fourth Circuit has found that “a nonsignatory to an arbitration clause may, in certain situations, compel a signatory to the clause to arbitrate the signatory’s claims against the nonsignatory despite the fact that the signatory and nonsignatory lack an agreement to arbitrate.” Aggarao v. MOL Ship Mgmt. Co.,
In this case, almost all of the arbitration clauses that Defendants Millennium and Kronos seek to enforce derive from contracts formed between class members and either DuPont or Huntsman. Indeed, the record reflects that there are only seven Kronos contracts and seven Millennium contracts that contain arbitration clauses. However, DuPont and Huntsman have each reached agreements in principle with the Plaintiffs to settle the claims against them. Consequently, the Defendants, as nonsignatories, can enforce the lion’s share of these contractual clauses only by relying on equitable estoppel to bar the signatory
Assuming that the arbitration clauses at issue are enforceable,
In the Complaint, the Plaintiffs assert that the Defendants Millennium and Kronos, along with DuPont, Huntsman, and Tronox, violated the Sherman Act through a “continuing combination or conspiracy to unreasonably restrain trade and commerce” and “concerted action among Defendants and their coconspirators.” Am. Consolidated Compl. ¶¶ 122, 125, ECF No. 51. The signatories thus raise allegations of “substantially interdependent or concerted misconduct by both the nonsignatory and one or more signatories to the contract.” Brantley,
The Plaintiffs oppose the application of equitable estoppel, contending that the doctrine cannot apply when the connection between Millennium, Kronos, DuPont, and Huntsman is only their illegal concerted activity. The Plaintiffs cited Laumann v. National Hockey League, Nos. 12 Civ. 1817 & 3704(SAS),
While the Second Circuit indeed gives a narrower reading to the equitable estoppel doctrine in the context of conspiracy claims, other courts — including the Fourth Circuit — have recognized the application оf equitable estoppel in such circumstances. The Fourth Circuit in Aggarao held that for equitable estoppel to apply, there must be “allegations of coordinated behavior between a signatory and a non-signatory defendant,” and “the claims against both the signatory and nonsignatory must be based on the same facts, be inherently inseparable, and fall within the scope of the arbitration clause.”
The Plaintiffs’ Complaint alleges coordinated behavior between signatories and nonsignatories. Moreover, the claims are based on the same facts, are inherently inseparable, and, as this Court explains in Section II.B of this Memorandum Opinion, fall within the scope of the arbitration clauses at issue. Thus, the Aggarao factors are met in this case. Moreover, that the signatory Defendants — that is, DuPont and Huntsman — are not seeking to enforce their rights under the contracts does not preclude the application of equitable estoppel in this case. See, e.g., Am. Bankers,
II. Enforceability of Asserted Clauses
Having found that the asserted arbitration clauses, forum selection clauses, and jury and class action waivers that pertain only to DuPont and Huntsman may be enforced by the Defendants Millennium and Kronos, this Court must now determine whether those clauses, as well as the clauses entered into by Millennium, Kronos, and their customers, are enforceable. Before turning to the individual arguments relating to enforceability, this Court addresses the Plaintiffs’ argument based on waiver.
A. Plaintiffs’ Waiver Argument
The Plaintiffs claim that the Defendants have waived their rights to enforce the arbitration and class action waiver clauses, because they have known about these clauses since the early stages of this litigation, yet did not seek to enforce them until class certification. In general, “a party waives arbitration by seeking a decision on the merits before attempting to arbitrate.” In re TFT-LCD (Flat Panel) Antitrust Litig., No. M 07-1827 SI, MDL No. 1827,
B. Mandatory Arbitration Provisions
The “liberal federal policy favoring arbitration agreements,” Gilmer,
Section 2 of the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1, provides as follows:
[A] contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a сontract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.
Id. § 2. The FAA “establishes'that, as a matter óf federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether
In this case, the arbitration agreements that the Defendants Millennium and Kronos assert are enforceable against the signatory class members. It is undeniable that the parties are involved in a dispute, that this dispute involves interstate commerce, and that the Plaintiffs oppose arbitration, thus satisfying the first, third, and fourth elements of the Fourth’s Circuit test in Whiteside. Id. The only question is whether the arbitration provisions on which the Defendants rely purport to cover this dispute. This Court answers that question in the affirmative.
The arbitration provisions asserted by the Defendants are broad and encompass the Plaintiffs’ antitrust claim. Though the exact wording of each asserted clause varies, they employ language indicating that the agreement is far-reaching.
Moreover, the arbitration clauses apply retroactively to encompass even those antitrust claims that arose prior to the execution of the relevant contracts. Many of the asserted contracts explicitly state that they apply retroactively or supersede all previous agreements.
The Plaintiffs challenge this argument, pointing out that some of the asserted contracts are unsigned, see, e.g., Kronos Ex. 1, while others post-date the filing of this lawsuit, see, e.g., Huntsman Ex. 38; Kronos Exs. 2, 6, 12; Millennium Ex. 7. Neither fact affects the enforceability of the asserted arbitration clauses. First, there is no requirement that arbitration agreements must be signed to be enforceable. See Caley v. Gulfstream Aerospace Corp.,
As for the Plaintiffs’ second point of contention, the Defendants reply that the contracts that post-date the Complaint were entered into during the normal course of their business, thus there is no concern that the Defendants sought to solicit exclusions from the class action. Even more convincing is the fact that some of these post-dated arbitration clauses were requested by the class members themselves. See Kronos Ex. 2; Huntsman Ex. 38. In sum, the Plaintiffs put forward no evidence suggеsting that the Defendants included these arbitration clauses for coercive purposes.
Finally, the Plaintiffs contend that the Defendants failed to fulfill both contractual conditions precedent and FAA procedure. They argue that some arbitration clauses, for example, required the parties to attempt to resolve any dispute through good faith negotiations before submitting it to arbitration. Moreover, the Plaintiffs claim that the Defendants have failed to follow basic FAA requirements — namely, notifying the parties against whom they intend to enforce arbitration clauses and serving the class members with the relevant contracts. See 9 U.S.C. § 4 (requiring a party seeking an order to compel arbitration to give “[f]ive days’ notice in writing of such application” upon the party “in default”). These arguments, however, miss the mark. The Defendants’ Motion to Compel Arbitration and Stay Proceedings is not meant to initiate arbitration; an order compelling arbitration simply clarifies the forum in which the claim may be asserted. See, e.g., Horneffer v. St. Joseph Med. Ctr., No. MJG-11-410,
For all of these reasons, the arbitration clauses asserted by the Defendants Millennium and Kronos are enforceable under the Federal Arbitration Act. Pursuant to Section 4 of the Federal Arbitration Act, this Court compels the class members whose arbitration clauses have been asserted by the Defendants to pursue their claims, if at all, in arbitration.
In addition to moving to compel arbitration, the Defendants Millennium and Kronos seek a stay of trial of the proceedings as to class members who agreed to enforceable arbitration clauses. Section 3 of the FAA provides that where a proceeding is brought in a United States court upon an issue “referable to arbitration under an agreement in writing for such arbitration,” the court “shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement.” 9 U.S.C. § 3. However, district courts in the Fourth Circuit have recognized that dismissal, rather than a stay of trial pending arbitration, is appropriate where a court rules that all of a plaintiffs claims must be arbitrated. See, e.g., Payton v. Nordstrom, Inc.,
In the context of this class action, where certain absent class members’ claims are subject to arbitration clauses, no useful purpose will be served by staying the pertinent proceedings pending arbitration. In the wake of this Court’s decision, the class members subject to enforceable arbitration clauses may decide not to proceed in arbitration. Yet for the reasons recited above, those members’ Sherman Act claims — in their entirety — may not be pursued in this forum. Because the entire claim of each relevant class member must be resolved by arbitration, this Court finds that dismissal, rather than a stay of trial, is appropriate. Accordingly, this Court dismisses the actions of those class members whose arbitration clauses have been asserted by the Defendants and deemed by this Court to be enforceable.
C. Forum Selection Clauses
Based on a similar rationale, Defendants Millennium and Kronos argue that the as
The United States Court of Appeals for the Fourth Circuit has held that “a motion to dismiss based on a forum-selection clause should be properly treated under Rule 12(b)(3) as a motion to dismiss on the basis of improper venue.” Sucampo Pharms., Inc. v. Astellas Pharma, Inc.,
In this case, the forum selection clauses limit litigation relating to the purchase agreements to courts other than this Court. See supra note 12 & accompanying text. Because the Sherman Act claims in this case involve each customer’s purchase of titanium dioxide pursuant to their agreements, the forum selection clauses are triggered. Additionally, after a review of the subject clauses, it is clear by their language that they are meant to be mandatory, not permissive. See, e.g., DuPont Ex. 46 at DUPTI020375190 (“[T]he courts within Delaware will be the only courts of competent jurisdiction.”); Huntsman Ex. 2 at HILLC005139529 (“Buyer and Seller irrevocably submit to the exclusive jurisdiction of the Federal courts of the United States of America located in the Southern District of Texas, Houston Division, or the State District Courts of Texas located in Harris County, Texas.”).
These forum selection clauses do not “lose their force in the context of a class action.” Wu v. Pearson Educ., Inc.,
The Plaintiffs contend that the Defendants failed to file a motion challenging venue “before pleading,” as is required by Rule 12(b)(3) of the Federal Rules of Civil Procedure. Moreover, the Plaintiffs argue that the Defendants failed to mоve to dismiss under Rule 12(b)(3), thereby waiving any challenges to venue. However, the
Third, the Plaintiffs contend that the claims in this case do not arise out of the agreements to purchase titanium dioxide, thus the forum selection clauses do not hold force. For example, courts have found that unfair competition claims under federal trademark law were not governed by forum selection clauses in underlying contracts. See Altvater Gessler-J.A. Baczewski Int’l (USA) Inc. v. Sobieski Destylarnia S.A.,
More importantly, none of the cases cited by the Plaintiffs involve price-fixing allegations under the Sherman Act. As already stated, some courts have enforced forum selection clauses in the context of such claims. See Bense,
Finally, the Plaintiffs argue that the forum selection clauses in the Guild CPO
For all of these reasons, this Court finds that the asserted forum selection clauses are enforceable. Accordingly, this Court dismisses the claims of customers with forum selection clauses for improper venue under Rule 12(b)(3) of the Federal Rules of Civil Procedure.
D. Jury Trial Waivers
The final set of clauses asserted by the Defendants Millennium and Kronos are jury trial waivers found in some of the class members’ contracts. Based on these clauses, the Defendants move this Court to strike the jury trial demands of the relevant class members, pursuant to Rule 39(a) of the Federal Rules of Civil Procedure.
Though the right to a jury trial under the Seventh Amendment is a fundamental one, it “can be knowingly and intelligently waived by contract.” Leasing Serv. Corp. v. Crane,
The Defendants assert that forty-three titanium dioxide customers participating in the class signed contracts including enforceable jury trial waivers. See Defs.’ Ex. 1 tbl. E, ECF No. 424-1. These clauses are found only in contracts involving Huntsman and Kronos. Id. It is important to note that Kronos’s standard supply agreements did not contain these clauses, but two Kronos customers requested that they be included. See Sanzalone Decl. ¶ 7.
Upon review of these clauses, this Court finds that the relevant class mem
The Plaintiffs do not contest that these jury waivers were knowing and voluntary. Rather, they suggest that the Defendants have waived their right to challenge the jury trial demands, as Rule 12(f) of the Federal Rules of Civil Procedure requires a party to move to strike matters from a pleading at the initial stages of litigation. Moreover, the Plaintiffs repeat their argument that the Sherman Act claims in this case do not arise out of the class members’ purchase agreements, thus the jury waivers are not applicable. For the reasons explained in Sections II.A through C of this Memorandum Opinion, these arguments fail. First, because the absent class members were not part of this case prior to class certification, the Defendants raised the issue of jury waivers at the appropriate time — once the relevant'titanium dioxide purchasers became member's of the class. See Flat Panel,
Accordingly, this Court finds that the jury trial waivers asserted by the Defendants Millennium and Kronos are enforceable. Pursuant to Rule 39(a) of the Federal Rules of Civil Procedure, this Court strikes the jury trial demands of the relevant class members.
III. Amendment to the Class Definition under Rule 23
Finally, the Defendants argue that based on the effect of enforcing the contractual provisions discussed in Section
The Defendants argue that the class is improperly certified for two reasons. First, the Defendants argue that many class members are differently situated in their contractual relationships with the Defendants and their alleged coconspirators, such that the claims of the representative Plaintiffs are not typical of the class. Second, individual issues related to those contractual relationships predominate over any questions of law and fact that are common to all class members, rendering a class action an inferior method by which to adjudicate all asserted claims. This Court concludes that, because various contractual provisions put certain class members in different legal positions from the rest of the class, the class definition must be amended.
Pursuant to Rule 23(a), a class may be properly certified only if “there are questions of law or fact common to the class,” and “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Fed. R.Civ.P. 23(a)(2)-(3). The “commonality” and “typicality” requirements of Rule 23(a) both “serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiffs claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.” Gen. Tel. Co. of the Sw.,
In this case, the members of the current class that are subject to arbitration, forum selection, or class action or jury waiver clauses are in a different legal position than those class members whose contracts contain no such provisions.
The Plaintiffs argue that, because no class member is subject to an arbitration clause with all original Defendants, and no contract covers the entire Class Period, each member of the current class has at least some purchases of titanium dioxide that are not covered by the contractual provisions at issue. This argument rings hollow. The relevant inquiry is not whether purchases of titanium dioxide are typical of one another, but rather whether the entities that made the purchases meet the requirements for class certification. Therefore, the class as currently defined does not meet the commonality and typicality requirements of Rule 23(a).
Furthermore, Rule 23(b)(3) requires that “questions of law or fact common to class members predominate over аny questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R.Civ.P. 23(b)(3). The likely difficulty in managing a class action may be a pertinent factor in determining whether common issues predominate, and whether a class action is a superior method of adjudication. Fed.R.Civ.P. 23(b)(3)(D). As the Court of Appeals for the Ninth Circuit has held, issues regarding contractual provisions that vary between class members may predominate over common questions of law or fact. Lozano v. AT & T Wireless Servs., Inc.,
Here, individual questions of law and fact as to the enforcement of provisions of class members’ contracts predominate over any common issues. The likely difficulties in managing individual questions of contract formation and interpretation are especially pertinent to this finding. See Fed.R.Civ.P. 23(b)(3)(D). For each class member who challenges the applicability of one or more of the contractual provisions at issue, this Court could be forced to conduct extensive analysis regarding choice of law, and contract fоrmation and interpretation, for each contract. This would likely total hundreds of individual invoices. This is precisely the type of class-member-by-class-member and contract-by-contract inquiry that the Ninth Circuit determined to be predominant over any common questions of law or fact. See Lozano,
In sum, the class as currently defined does not meet Rule 23’s requirements of commonality, typicality, and predominance. Accordingly, the class definition will be amended to read as follows:
All persons and entities who purchased titanium dioxide in the United States directly from one or more of Defendants Millennium and Kronos, or nonparties DuPont, Huntsman, or Tronox, or from any predecessors, parents, subsidiaries, or affiliates thereof, between February 1, 2003, and the present (“Class Period”), except those persons and entities who purchased titanium dioxide in the United States directly from one or more of Defendants Millennium and Kronos, or non-parties DuPont, Huntsman, or Tronox, or from any predecessors, parents, subsidiaries, or affiliates thereof, during the Class Period pursuant to a contract containing one or more of the following: (i) an arbitration clause, (ii) a clause restricting the litigation of disputes to courts other than the U.S. District Court for the District of Maryland, (iii) a class action waiver clause, or (iv) a provision waiving the right to a jury trial.
Also excluded from the Class are Defendants, their coconspirators, parent companies, predecessors, subsidiaries and affiliates, and all governmental entities.
Based on this amended class definition, all purchasers listed in Defendants’ Exhibit 1, tables A through E, ECF No. 424-1, will be excluded from the class.
CONCLUSION
For the reasons stated above, the Defendants’ Motion to Compel Arbitration and Stay Proceedings, Motion to Dismiss for Improper Venue, Motion to Strike, and Renewed Motion to Amend the Class Definition (ECF No. 423) is GRANTED.
As a result, the class members whose titanium dioxide contracts contain valid and enforceable arbitration clauses, as set forth in Table A of Defendants’ Exhibit 1, ECF No. 424-1, are ORDERED, pursuant to Section 4 of the Federal Arbitration Act, to pursue their Sherman Act claims, if at all, in -arbitration, and their claims in this litigation are hereby DISMISSED. The claims of class members whose titanium dioxide contracts contain valid and enforceable forum selection clauses, as set forth in Tables B and C of Defendants’ Exhibit 1, are DISMISSED for improper venue pursuant to Rule 12(b)(3) of the Federal Rules of Civil Procedure. Further, the jury trial demands of class members whose titanium dioxide contracts contain valid and enforceable jury trial waivers, as set forth in Tables E and C of Defendants’ Exhibit 1, are STRICKEN, and they are not members of the class as now defined.
Finally, pursuant to Rule 23(c)(1)(C) of the Federal Rules of Civil Procedure, the class definition is amended as set forth in the accompanying Order, as well as in Section III of this Memorandum Opinion.
A separate Order follows.
ORDER
For the reasons stated in the foregoing Memorandum Opinion, it is this 26th day of August 2013, ORDERED that:
1. The Defendants’ Joint Motion to Compel Arbitration and Stay Proceedings, Motion to Dismiss for Improper Venue, Motion to Strike Jury Trial Demands, and Renewed Motion to Amend the Class Definition (ECF No. 423), as it pertains to the remaining Defendants Kronos and Millennium, is GRANTED;
2. The class members whose titanium dioxide contracts contain valid and enforceable arbitration clauses, as set forth
3. The claims of class members whose titanium dioxide contracts contain valid and enforceable forum selection clauses, as set forth in Tables B and C of Defendants’ Exhibit 1, are DISMISSED for improper venue pursuant to Rule 12(b)(3) of the Federal Rules of Civil Procedure;
4. The jury trial demands of сlass members whose titanium dioxide contracts contain valid and enforceable jury trial waivers, as set forth in Tables C and E of Defendants’ Exhibit 1, are STRICKEN, and they are not members of the class as now defined;
5. Pursuant to Rule 23(c)(1)(C) of the Federal Rules of Civil Procedure, the class definition is amended to read as follows:
All persons and entities who purchased titanium dioxide in the United States directly from one or more of Defendants Millennium and Kronos, or non-parties DuPont, Huntsman, or Tronox, or from any predecessors, parents, subsidiaries, or affiliates thereof, between February 1, 2003, and the present (“Class Period”), except those persons and entities who purchased titanium dioxide in the United States directly from one or more of Defendants Millennium and Kronos, or non-parties DuPont, Huntsman, or Tronox, or from any predecessors, parents, subsidiaries, or affiliates thereof, during the Class Period pursuant to a contract containing one or more of the following: (i) an arbitration clause, (ii) a clause restricting the litigation of disputes to courts other than the U.S. District Court for the District of Maryland, (iii) a class action waiver clause, or (iv) a provision waiving the right to a jury trial. Also excluded from the Class are Defendants, their coconspirators, parent companies, predecessors, subsidiaries аnd affiliates, and all governmental entities.
6. The Joint Motion to Compel Arbitration and Stay Proceedings, Motion to Dismiss for Improper Venue, Motion to Strike Jury Trial Demands, and Renewed Motion to Amend the Class Definition (ECF No. 423), as it pertains to the settling Defendants E.I. du Pont de Nemours & Co., Inc. and Huntsman International LLC, remains STAYED pending final approval of those parties’ settlement agreements; and
7. The Clerk of the Court transmit copies of this Order and accompanying Memorandum Opinion to the parties.
Notes
. Titanium dioxide (“Ti02”) is a "dry chemical powder that is the world's most widely used pigment for providing whiteness, brightness, and opacity ... to many products, particularly paints and other coatings." See Mem. Op. Granting Mot. for Class Certification,
. The Defendants petitioned to appeal this Court's decision certifying the class, and that
. DuPont's Standard Conditions of Sale, revised in March 2007, read in pertinent part:
Buyer and Seller agree to arbitrate all disputes, claims, or controversies whether based on contract, tort, statute, or any other legal or equitable theory, arising out of or relating to (a) this Agreement or the relationship which results from this Agreement, (b) the breach, termination or validity of this Agreement, (c) the purchase or supply of any product, service, or information provided by Seller, (d) events leading up to the formation of Buyer’s and Sеller's relationship, and (e) any issue related to the creation of this Agreement or its scope, including the scope and validity of this paragraph. [...]
Buyer and Seller agree not to file or join any class action or class arbitration, seek or consent to class relief, or seek or consent to the consolidation or joinder of its claims with -those of any third party.
Daney Decl. ¶¶ 7, 16 (emphasis added); DuPont Ex. 9, DUPTIO20375422 ¶ 11.
. Many of the customers who purchased titanium dioxide pursuant to asserted clauses entered into more than one such clause, such that Defendants in their Exhibit 1, tables A through E, list more than 320 contractual clauses that they argue preclude participation in this class action litigation. See Defs.’ Ex. 1, ECF No. 424-1. Taking into consideration the customers who signed more than one such clause, Defendants' Exhibit 3 identifies the 320 separate class members subject to one or more mandatory arbitration clauses, forum selection clauses, class action waivers, or jury trial waivers. See Defs.' Ex. 3, ECF No. 460-2.
. In Section II.B of this Memorandum Opinion, this Court finds that the arbitration clauses are enforceable.
. Because the second scenario giving rise to the equitable estoppel doctrine applies in this case, this Court need not determine whether the other ground for equitable estoppel — that the signatory's claims “arise out of and relate
. It is noteworthy that the Dеfendants have not attempted to assert any arbitration clauses entered into by the named party Haley Paint Company.
. See, e.g„ DuPont Ex. 1 at DUPTIO20376530 ("All disputes arising out of or in connection with the present Agreement shall be finally settled under the Rules of Arbitration.”); DuPont Ex. 9 (DuPont's “Standard Conditions of Sale”) ¶ 11 (“Buyer and Seller agree to arbitrate all disputes, claims, or controversies whether based on contract, tort, statute, or any other legal or equitable theory....”); Huntsman Ex. 38 at HILLC006938362 ("Any controversy or claim arising from or related to this Agreement shall be settled by final and binding arbitration.”); Kronos Ex. 5 at KROWW00072493 (providing that "any dispute, claim, or controversy arising out of or relating in any way to this Agreement ... shall be submitted to the American Arbitration Association” if resolution through good faith negotiations is not achieved); Millennium Ex. 2 at MIC04360873 ("[A]ll disputes arising from this Agreement will be settled exclusively by binding arbitration.”).
. See, e.g., DuPont Ex. 9 (DuPont's "Standard Conditions of Sale”) ¶ 11 (mandating arbitration of "all disputes” relating to “the purchase or supply of any product” and "events leading up to the formation of Buyer's and Seller’s relationship”); id. ¶ 15 ("This Agreement supersedes all prior agreements, representations, and understandings between the parties.”); Huntsman Ex. 38 at HILLC006938362 ("This Agreement contains
. The class members whose titanium dioxide contracts contain valid and enforceable arbitration clauses precluding them from this litigation are listed in the Defendants' Exhibit 1, attached to their Motion to Compel Arbitration and Stay Proceedings. See Defs.' Ex. 1 tbl. A, ECF No. 424-1.
. All of the class action waivers asserted by the Defendants pertain to DuPont contracts. See Defs.’ Ex. 1 tbl. D, ECF No. 424-1. Moreover, each contract containing a class action waiver also includes an arbitration clause. See id..; see also Daney Decl. ¶¶ 3, 15, 17-18. This Court has found those arbitration clauses to be valid and enforceable. Accordingly, the class members that entered into class action waivers are already excluded from the class on the basis of their mandatory arbitration provisions, and this Court need not separately consider the enforceability of the asserted class action waivers. However, this Court notes that the Plaintiffs present no reason for finding these class action waivers invalid — apart from the issues they raised regarding the asserted arbitration clauses.
. See, e.g., DuPont Ex. 46 at DUPTI020375190 (designating the forum of Delaware); DuPont Ex. 47 at DUPTIO20375647 (Illinois); DuPont Ex. 54 at DUPTIO20986844 (Geneva); Huntsman Ex. 2 at HILLC005139529 (District Court for the Southern District of Texas, Houston Division, or State District Courts of Texas located in Harris County, Texas); Kronos Ex. 16 at KROWW00024416 (The Hague, Netherlands); Kronos Ex. 17 at KROWW00035655 (the state and federal courts in Minnesota); Millennium Ex. 6 (any state or federal court within the State of Washington).
. The class members whose titanium dioxide contracts contain valid and enforceable forum selection clauses precluding them from this litigation are listed in the Defendants’ Exhibit 1, attached to their Motion to Compel Arbitration and Stay Proceedings. See Defs.’ Ex. 1 tbls. B & C, ECF No. 424-1.
. The class members whose titanium dioxide contracts contain valid and enforceable jury trial waivers precluding them from this litigation are listed in the Defendants’ Exhibit 1, attached to their Motion to Compel Arbitration and Stay Proceedings. See Defs.’ Ex. 1 this. C & E, ECF No. 424-1.
. The contract of named Plaintiff Haley Paint Company contains arbitration, forum selection, and jury waiver provisions. However, the Defendants have expressly waived their right to enforce that provision. Because the clauses in Plaintiff Haley Paint Company’s contracts are not being enforced, its claim is not typical of other class members whose contractual provisions the Defendants seek to enforce.
. The Defendants also argue that the named Plaintiffs cannot meet the requirement in Rule 23(a)(4) that “the representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a)(4). Because this Court finds that the class as currently defined fails to meet the commonality and typicalityVequirements of Rule 23(a)(2)-(3), it need not address the Defendants’ second contention. \