In In re: TFT-LCD (Flat Panel) Antitrust Litigation, Northern District of California Judge Susan Illston has decided to allow some liquid crystal display manufacturers charged with price fixing to assert a pass-on defense. The defense contends that the plaintiffs cannot recover damages because they passed on alleged overcharges to their customers. Although the pass-on defense is not recognized under the federal antitrust laws, the court held that it was available with respect to certain state law price-fixing claims in California, Illinois, Michigan, Minnesota and New York. The precedent in these states with respect to the pass-on defense was not always clear. So, the court’s decision was significant.
Judge Illston refused to find, however, that the defendants had already submitted sufficient undisputable evidence that each plaintiff had in fact passed on the overcharges.