Counsel for the defendants retained Dr. Michael Keeley, a senior vice president of Cornerstone Research, and Dr. Michelle Burtis, a vice president of Cornerstone Research, to analyze whether common evidence could be used to prove impact and damages in these putative class action price-fixing cases. The plaintiffs alleged that the defendants—Samsung, Toshiba, SanDisk, Renesas Electronics, Hynix, and Hitachi—conspired to sell NAND flash memory to direct purchasers at artificially inflated prices and that overcharges in turn were passed through to indirect purchasers. Defense counsel in this case included Latham & Watkins, McDermott Will & Emery, Bingham McCutchen, Quinn Emanuel Urquhart & Sullivan, and O’Melveny & Myers.
Dr. Keeley submitted testimony in the direct and indirect purchaser cases, opining that common evidence could not be used to demonstrate that all direct purchasers of NAND flash memory would have paid artificially inflated prices had there been a price-fixing agreement. Among other things, they purchased distinct types of NAND flash memory, many of which were not substitutes for one another, and paid widely varying prices resulting from individual negotiations. Dr. Burtis submitted testimony in the indirect case and opined that common proof could not be used to demonstrate that an overcharge, if it occurred, would be passed through to indirect purchasers of consumer and industrial products containing NAND flash memory due to the diversity in chips, products, distribution channels, and intermediate and final prices paid.
The court denied the motion for class certification in the indirect purchaser case. In its ruling the court cited both Dr. Keeley and Dr. Burtis extensively and concluded that “Plaintiffs have not shown, to the Court’s satisfaction, that common evidence can be presented to establish the requisite antitrust impact on direct purchasers or indirect purchasers.” In the direct purchaser action, the court denied a request by the plaintiffs’ counsel to substitute a new class representative and asked them to show why the case should not be dismissed because the class representative did not purchase NAND flash memory directly from any defendant. Subsequently, the plaintiffs agreed to voluntarily dismiss the case, and the parties filed a stipulation dismissing the direct purchaser action with prejudice in exchange for a waiver of costs.