Case3:14-cv-03264-JD Document710 Filed05/26/15 Page1 of 30
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`Master File No. 14-cv-03264-JD
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`ORDER ON MOTIONS TO DISMISS
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`Re: Dkt. Nos. 474, 475, 479, 480
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`IN RE CAPACITORS ANTITRUST
`LITIGATION.
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`Direct and indirect purchasers in these consolidated antitrust class actions allege price-
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`fixing conspiracies in the capacitor market. The direct purchaser plaintiffs (“DPPs”) allege that
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`defendant manufacturers in Japan, Taiwan, Germany and the United States have participated in a
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`single overarching conspiracy since 2003 to artificially raise prices and suppress price competition
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`for aluminum, tantalum and film capacitors. In a separate complaint, the indirect purchaser
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`plaintiffs (“IPPs”) allege two conspiracies running over different times for the same products. The
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`defendants are largely the same in the DPP and IPP cases, and include overseas parent companies
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`and United States subsidiaries. Defendants move to dismiss the DPP complaint mainly for failing
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`to state a plausible price-fixing claim. They concede the plausibility of the antitrust claim in the
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`IPP complaint, but challenge it on standing and state law grounds.
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`The Court denies the motions for the most part. The DPP complaint provides enough
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`factual allegations to state a price-fixing claim. The IPP complaint also survives defendants’
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`primary challenges. In both cases, the Court grants defendants’ request to dismiss certain entities
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`who were sued because they belong to an alleged family of conspirators rather than on the basis of
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`specific allegations against them individually. DPPs and IPPs will have an opportunity to amend.
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`BACKGROUND
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`The technology at issue here is straightforward. As alleged in both complaints, capacitors
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`are one of the most basic functional units in electronic circuits. While they can vary considerably
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`in specific application, capacitors generally operate to store energy on a short-term basis, like a
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`temporary battery, and smooth out the flow of energy to avoid surges and deficits. Capacitors are
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`classified as “passive” components, which means they do not generate power but store and
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`condition it. At heart, a capacitor consists of two electrical plates, one positively and one
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`negatively charged, that are sandwiched together with a non-conductive insulator called a
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`dielectric between them. They are used universally in circuits. As the result, virtually every
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`electronic device we use, from toasters to cellphones, has capacitors in it.
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`Capacitors can be electrolytic or electrostatic. As the IPPs allege, electrolytic capacitors
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`are “asymmetrical, polarized constructions,” while electrostatic capacitors are “symmetrical, non-
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`polarized constructions.” Dkt. No. 400 ¶¶ 128, 129. Capacitors made with a dielectric of
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`aluminum or tantalum are electrolytic capacitors. Those made with a plastic film or ceramic
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`dielectric are electrostatic capacitors.
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`The DPPs and IPPs bring their antitrust claims in the context of the global market for these
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`ubiquitous components. Unsurprisingly, there is a high degree of overlap between the
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`consolidated complaints, although the IPP complaint does a deeper dive into some areas. See Dkt.
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`Nos. 400, 401. Both complaints allege that the defendant capacitor manufacturers, many of whom
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`are based in Japan, engaged in a multi-year price-fixing conspiracy for electrolytic and film
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`capacitors. Both complaints trumpet multiple government antitrust investigations underway in the
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`United States and overseas into possible anticompetitive practices in the capacitor industry. In the
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`United States, the Department of Justice is leading the charge from its San Francisco office. See
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`Dkt. No. 401 ¶¶ 274-93; Dkt. No. 400 ¶¶ 13-18. And both complaints highlight that one of the
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`defendants, Panasonic Corporation, has applied for leniency under the DOJ’s Corporate Leniency
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`Program pursuant to the Antitrust Criminal Penalty Enhancement and Reform Act (“ACPERA”).
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`Dkt. No. 400 ¶¶ 15-16; Dkt. No. 401 ¶¶ 278-79.
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`But the complaints also have some substantial differences. The four named direct
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`purchaser plaintiffs -- Chip-Tech, Ltd., a New York corporation; Dependable Component Supply
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`Corporation, a Florida corporation; eIQ Energy, Inc., a California corporation; and Walker
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`Component Group, Inc., a Colorado corporation, Dkt. No. 401 ¶¶ 25-28 -- allege a single,
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`overarching conspiracy “in aluminum, tantalum and film capacitors” with a class period of
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`January 1, 2003 to the present. Id. ¶¶ 1, 111. Each DPP states that it “directly purchased
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`capacitors from one or more defendants during the class period.” Id. Defining the proposed class
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`to comprise “[a]ll persons in the United States that purchased capacitors . . . directly from any of
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`the defendants” during the class period, id. ¶ 111, the DPPs assert a single claim for restraint of
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`trade in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1. For this claim, the DPPs seek,
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`among other things, treble damages under Section 4 of the Clayton Act, 15 U.S.C. § 15, and an
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`injunction. Id. at 67-68 (Demand for Judgment).
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`The indirect purchaser plaintiffs, on the other hand, allege two “massive and separate
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`conspiracies” to fix the prices of “electrolytic and film capacitors, respectively.” Dkt. No. 400 ¶ 1.
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`The IPPs assert that the “electrolytic class period” has a start date of January 1, 2003, and the
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`“film class period” one of January 1, 2007. Id. ¶¶ 2-3. The named IPPs include “First-Level
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`Indirect Purchaser Plaintiffs” -- five named plaintiffs who allege that they purchased capacitors as
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`stand-alone products from one or more distributors, who in turn purchased the capacitors as stand-
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`alone products from defendants. Id. ¶¶ 29-34.1
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`The consolidated IPP complaint also included “Consumer Indirect Purchaser Plaintiffs” --
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`thirty-one plaintiffs hailing from twenty-two states who purchased such varied products as laptops,
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`televisions, tablets, cell phones, printers, game consoles, MP3 players, power tools, dishwashers
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`and auto parts, all of which allegedly contained price-fixed capacitors manufactured by one or
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`more defendants during the respective class periods. Id. ¶¶ 35-65. This putative consumer group
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`was the only group to allege claims on the basis of finished goods that included capacitors. In
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`response to the Court’s discussion with the interim lead counsel for the putative indirect purchaser
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`plaintiff class at the hearing on the motions to dismiss, counsel filed a Notice of Voluntary
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`Dismissal that dismissed without prejudice all thirty-one of the Consumer Indirect Purchaser
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`1 One of the named First-Level Indirect Purchaser Plaintiffs is Alfred H. Siegel, the Liquidating
`Trustee of the Circuit City Stores, Inc. Liquidating Trust. Dkt. No. 400 ¶ 33. Circuit City Stores,
`Inc. is alleged to have “indirectly purchased capacitors as stand-alone products and as components
`of products containing electrolytic and/or film capacitors from one or more of the Defendants.”
`Id. ¶ 34.
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`Case3:14-cv-03264-JD Document710 Filed05/26/15 Page4 of 30
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`Plaintiffs and their claims from the IPPs’ first consolidated complaint. Dkt. No. 594. Those
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`plaintiffs and claims are no longer a part of this case and unless otherwise noted, all references to
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`the “indirect purchaser plaintiffs” are references to the “First-Level Indirect Purchaser Plaintiffs”
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`only. In the event the IPPs amend their complaint in response to this order, they are directed to
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`remove the consumer group parties and allegations from the next version.
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`The IPPs allege different dates and types of conduct by the defendants. Some defendants
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`are alleged to have participated only in the electrolytic capacitor cartel, some in only the film
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`capacitor cartel, and some in both. Dkt. No. 400 ¶ 10. The lengthy cast of the IPP defendants
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`largely matches the DPPs’ cast, with some variations.
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`Alleging that each and every capacitor purchased by the IPPs is “traceable to an entity
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`owned and/or controlled by a defendant because it bears the defendant’s markings (e.g., name,
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`logo, series),” id. ¶ 4, the IPPs assert claims under: (i) the Sherman Act, 15 U.S.C. § 1; (ii) the
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`California Cartwright Act, Cal. Bus. & Prof. Code § 16720; and (iii) the California Unfair
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`Competition Law, Cal. Bus. & Prof. Code § 17200 (“UCL”). Id. ¶¶ 349-379. For the Sherman
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`Act claim, the IPPs seek an injunction only; they seek treble damages under the Cartwright Act
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`and “restitution and/or disgorgement” for the UCL claim. Id. ¶¶ 359, 367, 379. The complaint
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`seeks nationwide application of California’s Cartwright Act and UCL. Id. ¶¶ 368, 379.2
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`Before the Court are four separate motions to dismiss the DPP and IPP complaints. The
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`“joint” motions assert arguments in which all moving defendants join. Dkt. Nos. 474, 479. The
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`“consolidated” motions are compilations of various defendants’ individual arguments, i.e.,
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`arguments that are specific to why the allegations against that moving defendant should be
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`dismissed. Dkt. Nos. 475, 480.
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`2 The complaint also asserts claims for violations of (iv) state antitrust and restraint of trade laws
`(“in the event that the Court does not apply California law on a nationwide basis”); and (v) state
`consumer protection and unfair competition laws (again “in the event that the Court does not apply
`California law on a nationwide basis”). Dkt. No. 400 ¶¶ 380-412. Because the First-Level
`Indirect Purchaser Plaintiffs are two California residents, two California companies and the trustee
`of a trust that was established in connection with the bankruptcy of a Virginia corporation, and
`because no Virginia state law claim is included in the fourth or fifth claims for relief, the Court
`deems all state claims other than those under California law to have been voluntarily dismissed by
`the indirect purchaser plaintiffs.
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`DISCUSSION
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`Well-established standards govern these motions. To comply with the pleading
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`requirements of Federal Rule of Civil Procedure 8(a)(2) and survive a Rule 12(b)(6) motion to
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`dismiss, a plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.”
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`Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the
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`pleaded factual content allows the court to draw the reasonable inference that the defendant is
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`liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly at
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`556). In evaluating a motion to dismiss, the Court must assume that the plaintiff’s allegations are
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`true and must draw all reasonable inferences in his or her favor. Usher v. City of Los Angeles, 828
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`F.2d 556, 561 (9th Cir. 1987). However, the Court need not “accept as true allegations that are
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`merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead
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`Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). If the Court dismisses a complaint, it
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`“should grant leave to amend even if no request to amend the pleading was made, unless it
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`determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez v.
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`Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (internal quotation marks and citation omitted).
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`I. DIRECT PURCHASER PLAINTIFFS’ COMPLAINT
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`A. Twombly Plausibility
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`The defendants’ main attack on the DPP complaint is that it falls short of plausibility
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`under Twombly. Specifically, defendants seize upon the one vs. two conspiracy theories in the
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`DPP and the IPP complaints. Defendants concede that they “as a general matter do not challenge
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`the sufficiency of the IPP Complaint’s allegations of two separate conspiracies” for electrolytic
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`and film capacitors. Dkt. No. 479 at 2. They attack the DPPs because they do not follow the same
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`approach, and argue that the DPPs’ “central allegation of a single overarching conspiracy
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`involving both electrolytic and film capacitors is implausible on its face.” Id. at 6.
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`The DPPs defend their complaint with heavy reliance on the fact that the
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`Panasonic/SANYO entities have “admitted to the conduct and provided information about it.”
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`Dkt. No. 519 at 1. They say they make highly detailed allegations of conspiracy on the basis of
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`that information, and that these “direct allegations of a conspiracy must be taken as true and
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`establish, without any need for inference, the key facts of the conspiracy.” Id.
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`In essence, defendants argue that the DPPs’ single conspiracy is just too big to plead, and
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`DPPs contend that where there’s smoke, there’s fire. The Court finds that both sides exaggerate
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`their positions but that overall the DPP complaint has sufficient grounding in fact to go forward.
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`Panasonic’s “admission” does not have the dispositive weight ascribed to it by the direct purchaser
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`plaintiffs. But more importantly for purposes of this motion, defendants limn far too bleak a
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`picture -- and one that does not fairly reflect the DPPs’ complaint -- when they argue that the
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`DPPs’ allegations are too “conclusory” and “bare-bones” to satisfy Twombly, or that size alone
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`can doom conspiracy allegations. Dkt. No. 479 at 11.
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`The specific pleading standards stated by the Supreme Court in Twombly drive these
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`findings. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
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`detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to
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`relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a
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`cause of action will not do.” 550 U.S. at 555 (internal citations omitted). “Factual allegations
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`must be enough to raise a right to relief above the speculative level, on the assumption that all the
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`allegations in the complaint are true (even if doubtful in fact).” Id. at 555-56 (same).
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`The Court has the added benefit that Twombly was itself a Sherman Act § 1 antitrust case.
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`In that context, the same as here, the Supreme Court held that a conspiracy claim “requires a
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`complaint with enough factual matter (taken as true) to suggest that an agreement was made.” Id.
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`at 556. “Asking for plausible grounds to infer an agreement does not impose a probability
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`requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation
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`that discovery will reveal evidence of illegal agreement.” Id.
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`These standards were not met in Twombly because the complaint left “no doubt that
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`plaintiffs rest[ed] their § 1 claim on descriptions of parallel conduct and not on any independent
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`allegation of actual agreement” among defendants. Id. at 564. That omission is not true of the
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`DPP complaint. The DPP complaint makes these substantive agreement allegations:
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`● “Defendants agreed to concertedly fix, raise, maintain and/or stabilize the prices for
`aluminum, tantalum and film capacitors.” Dkt. No. 401 ¶ 183. Defendants shared and
`exchanged with each other “confidential and competitively sensitive information
`pertaining to their product pricing” either through correspondence or during in-person
`meetings. Id. Pricing agreements were reached both in “regular, organized meetings”
`as well as through “ad hoc meetings and correspondence.” Id. ¶ 185. Defendants also
`“agreed to quote similar or identical production lead times to purchasers on a concerted
`basis,” as well as “to restrain their output.” Id. ¶¶ 188-89.
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`● At least by the beginning of 2003, the defendant cartel members had “formally
`organized meetings among themselves to serve as a forum for the discussion and
`exchange of competitively sensitive information.” Id. ¶ 194. These meetings were
`known variously as “ATC,” “MK” or “JFC” meetings, and they were “generally
`organized by the types of capacitors to be discussed”; ATC and MK for aluminum and
`tantalum capacitors, and JFC meetings for film capacitors. Id. ¶ 196.
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`● Defendants generally held “monthly one-day meetings that were usually attended by
`manager-level employees,” as well as “two-day meetings” twice a year that were
`“generally attended by defendants’ more senior officials.” Id. ¶¶ 201-02. For specific
`defendant groups such as the film capacitor manufacturers, meetings were held less
`frequently, i.e., every one to three months. Id. ¶ 203.
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`● “Based on the recommendations and agreements reached at these different cartel
`meetings, the defendant attendees intended to and did agree to price capacitors
`collusively, stand united against price reduction demands, and set production and
`delivery dates to collusively control supply in the aluminum and tantalum capacitors
`markets.” Id. ¶ 204.
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`● The complaint also describes, by way of example, organized “cartel meetings” that
`took place in ten different time periods, as well as a number of informal meetings
`among defendants that took place during the class period. Id. ¶¶ 208-18. Included are
`allegations of the identities of the defendants companies whose representatives
`attended each meeting, and defendant attendees are alleged, among other things, to
`have discussed “their plans to increase film capacitor prices” at a “cartel meeting” in
`the 4th quarter of 2007, discussed “implementing film capacitor price increases” at a
`meeting in the 4th quarter of 2008, and “agreed among themselves to resist price
`decreases and stabilize their film capacitor prices” at a meeting in the 1st quarter of
`2009. Id. ¶ 208(a), (d), (e).
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`● Finally, the complaint alleges -- with specific price data -- that defendants’ “concerted
`and collusive actions . . . artificially inflated the prices of capacitors,” and “defendants’
`conspiracy permitted the defendant manufacturers of aluminum, tantalum and film
`capacitors to slow, negate and even reverse the market-driven decline in price for their
`products, and to fix prices at supra-competitive levels.” Id. ¶ 219-23.
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`These allegations are enough to avoid dismissal. As an initial matter, they add up to much
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`more than the superficial generalities about the “absence of any meaningful competition” and
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`“parallel course of conduct” that sank the complaint in Twombly. 550 U.S. at 564-65. Defendants
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`strongly deny the allegations and attack them as impossible or wrong but that objection clearly is
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`irrelevant to this motion to dismiss. Whether the DPPs will carry their burden of proof on the
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`price-fixing claim is a decidedly different issue from whether they have alleged enough facts
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`under Rule 8 to stay in court. Like others before them, defendants ask this Court to treat Twombly
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`as a license to resolve a Rule 12(b)(6) challenge on an impressionistic assessment of a complaint’s
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`merits. But the task of the district court is not to sustain or dismiss a complaint based on whether
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`the Court feels it is a winner or has curb appeal. The Court’s task is to determine whether the facts
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`alleged in the complaint rise above mere speculation, even if the Court has doubts about them,
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`Twombly, 550 U.S. at 555-56, and whether they “plausibly suggest an entitlement to relief, such
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`that it is not unfair to require the opposing party to be subjected to the expense of discovery and
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`continued litigation.” Star v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011); see also Twombly, 550
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`U.S. at 556 (standard simply calls for “enough fact to raise a reasonable expectation that discovery
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`will reveal evidence of illegal agreement.”). The DPP complaint passes this test.
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`In using the IPP complaint against the DPPs’, defendants also overstate the differences
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`between the pleadings. Despite the allegation of two separate conspiracies, the IPPs acknowledge
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`that some defendants (Hitachi, NCC, Rubycon and Panasonic) participated in both, and that
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`“discovery may reveal that there was one overarching conspiracy due to the overlapping
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`defendants and customers.” Dkt. No. 400 at 5 & 1 n.2. The DPPs similarly acknowledge that
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`“[w]hile there was substantial overlap between and among defendants who participated in
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`discussions, communications and agreements concerning electrolytic (aluminum and tantalum)
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`capacitors, on the one hand, and film capacitors, on the other, much still needs to be discovered.”
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`Dkt. No. 401 ¶ 181. The DPPs have nevertheless taken the step of alleging one overarching
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`conspiracy, but, like the IPPs, the DPPs identify “Nippon Chemi-Con, Rubycon, Hitachi AIC and
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`Panasonic/SANYO” as having played a “key role” because “each of these defendant companies
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`manufactured both electrolytic capacitors (i.e., aluminum and/or tantalum) and film capacitors and
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`are dominant manufacturers of these capacitors.” Id. ¶ 199.
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`Not only are the factual allegations between the two complaints not as dissimilar as
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`defendants contend, there simply is no requirement that an antitrust plaintiff draw the boundaries
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`of the alleged conspiracy (or conspiracies) in a complaint with the precision of a diamond cutter.
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`See In re Lithium Ion Batteries Antitrust Litigation (“Batteries I”), No. 13-MD-2420 YGR, 2014
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`WL 309192, at *2 (N.D. Cal. Jan. 21, 2014) (“The question in this case is not whether any
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`conspiracy existed, only how far it reached. That question is ultimately one of fact, and cannot be
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`resolved in the present procedural posture, where the Court tests only the sufficiency of the
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`pleadings.”). And mere size or breadth alone is not a reason to peremptorily jettison a conspiracy
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`allegation. Defendants cite In re Optical Disk Drive Antitrust Litigation, No. 3:10-md-2143 RS,
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`2011 WL 3894376 (N.D. Cal. Aug. 3, 2011), for the purported rule that “a single overarching
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`conspiracy” is inherently implausible. Dkt. No. 479 at 7. But the case does not stand for that
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`proposition at all. There, the court was reacting to an allegation of conspiracy that stretched from
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`stand-alone disk drives to products that incorporated the drives into other devices. 2011 WL
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`3894376, at *6. None of the device makers were named as defendants and they participated in a
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`broad range of markets and marketing channels that the named drive conspirators would somehow
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`need to have controlled. Id. For that reason, the court expressed plausibility concerns. But that
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`reason does not, of course, exist in this case, which involves only stand-alone capacitors. So long
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`as an alleged conspiracy is supported by enough facts to make it plausible, as it is here, it is of no
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`matter whether it involves three conspirators or a score or more.
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`Significantly, defendants do not attack the plausibility of the IPPs’ complaint, which
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`alleges a film capacitor conspiracy beginning in 2007 and an electrolytic capacitor conspiracy
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`beginning in 2003. While defendants seek to make much of the fact that the DPP complaint puts
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`the starting date of the film capacitor conspiracy at 2003 (because it alleges a single conspiracy
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`from 2003 for all the named products), defendants did not explain in their papers or at the hearing
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`how, if at all, this difference would have any impact on the scope or cost of discovery. Cf.
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`Twombly, 550 U.S. at 559 (“it is one thing to be cautious before dismissing an antitrust complaint
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`in advance of discovery, but quite another to forget that proceeding to antitrust discovery can be
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`expensive”). The DPPs’ allegations “give a defendant seeking to respond to [the] allegations of []
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`conspiracy an idea of where to begin,” and defendants cannot with a straight face claim otherwise.
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`Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1047 (9th Cir. 2008).
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`The Court finds that the DPP complaint has met the bar set by Twombly after considering,
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`as it must, the DPPs’ complaint as a whole. The Court makes clear, however, that the government
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`investigations alleged by plaintiffs carry no weight in that holistic analysis. Dkt. No. 401 ¶¶ 275-
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`76, 280-83 (describing investigations by the U.S. DOJ Antitrust Division, the People’s Republic of
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`China’s National Development and Reform Commission, and Fair Trade Commissions of Japan,
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`South Korea, Taiwan and the European Commission’s competition authority). “It is unknown
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`whether the[se] investigation[s] will result in indictments or nothing at all.” In re Graphics
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`Processing Units Antitrust Litigation (“GPU”), 527 F. Supp. 2d 1011, 1024 (N.D. Cal. 2007).
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`Moreover, at least some, and possibly all, of these investigations are being conducted in secret,
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`and consequently, “the scope of the investigation is pure speculation. It may be broader or
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`narrower than the allegations at issue.” Id.
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`Panasonic’s leniency application through ACPERA is in the same boat. Dkt. No. 401
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`¶¶ 277-79. While substantively different from a mere investigation, the ACPERA application also
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`entails a lack of transparency that vitiates its utility in a pleading. The parties agreed at the
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`hearing that there is no pertinent case law on this issue, and that this case presents a rather unusual
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`factual circumstance in that the ACPERA application (and corresponding assistance to the private
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`plaintiffs) came early in the timeline. DPPs ask the Court to treat Panasonic’s application as the
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`equivalent of a guilty plea that admits all facts. They assert that Panasonic must “admit to price
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`fixing” by statute and DOJ policy in order to receive leniency under ACPERA. Id. ¶ 279.
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`Panasonic did not dispute this, and further acknowledged that it must sufficiently cooperate with
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`both plaintiff groups in order to avoid both treble damages and joint and several liability pursuant
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`to ACPERA. But as Panasonic pointed out, and plaintiffs agreed, the ACPERA process is not
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`transparent. There is in fact no guilty plea or similar formal acknowledgement of wrongdoing that
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`plaintiffs, and more critically the Court, can see and evaluate. While it is tempting to ascribe a
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`higher value to the application than to an investigation, its contents are unknown and the same
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`concerns about the lack of transparency in investigative proceedings applies here. It is not
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`possible for the Court to delimit the actual scope of Panasonic’s alleged admissions and how they
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`map on to the DPP civil complaint. Consequently, Panasonic’s ACPERA application is a non-
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`factor in the Court’s analysis. The Court understands that Panasonic has proffered facts about its
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`scope of conduct and documents to both groups of plaintiffs, but otherwise the Court finds that it
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`is not particularly different from the other defendants for present purposes. Panasonic’s
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`application certainly is not the be-all and end-all confession that DPPs’ motion to dismiss
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`opposition suggests.
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`B. Statute of Limitations
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`Defendants also seek dismissal of the DPPs’ claim at least “to the extent it accrued
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`before July 18, 2010,” pursuant to the Clayton Act’s four-year statute of limitations. Dkt. No. 479
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`at 20 (citing 15 U.S.C. § 15b). Defendants argue that the DPPs’ allegation that the statute was
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`tolled by defendants’ fraudulent concealment is insufficient because the DPPs have alleged “no
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`specific facts that would satisfy Rule 9(b) to support their conclusory allegations,” such as the
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`dates, time or locations of any “secret discussions” or when, how, where and why any “coded
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`language” was used. Id. at 21.
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`To toll the statute of limitations under a fraudulent concealment theory, a plaintiff “must
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`plead facts showing that [defendants] affirmatively misled it, and that [plaintiff] had neither actual
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`nor constructive knowledge of the facts giving rise to its claim despite its diligence in trying to
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`uncover those facts.” Conmar Corp. v. Mitsui & Co. (U.S.A.), 858 F.2d 499, 502 (9th Cir. 1988).
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`Conclusory statements are not enough, and plaintiffs must instead “plead with particularity the
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`circumstances of the concealment and the facts supporting [their] due diligence.” Id. “[I]t is
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`generally inappropriate to resolve the fact-intensive allegations of fraudulent concealment at the
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`motion to dismiss stage, particularly when the proof relating to the extent of the fraudulent
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`concealment is alleged to be largely in the hands of the alleged conspirators.” In re Cathode Ray
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`Tube (CRT) Antitrust Litigation, 738 F. Supp. 2d 1011, 1024 (N.D. Cal. 2010).
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`The Court finds that the DPPs have made specific allegations of fraudulent concealment.
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`They allege that defendants generally “agreed not to discuss publicly the nature of the scheme”
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`and “did not take or distribute official minutes or record” the meetings alleged. Dkt. No. 401
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`¶¶ 295-96. And plaintiffs quote from a 2006 e-mail from a SANYO employee, stating:
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`“[E]xchanging information is useful . . . . However, it maybe [sic] become a double-edged sword
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`at times. To the extent possible, try to exchange verbally so that no evidence is left behind.
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`Especially pricing figures and important presentation materials.” Id. ¶297. Plaintiffs also allege a
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`SANYO employee’s comments in an e-mail requesting “utmost care in handling” reports attached
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`to the e-mail because the “gathering[s] should not be disclosed to the public.” Id. ¶ 299. Other e-
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`mails among SANYO employees and NEC-TOKIN employees are alleged to have included the
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`instruction, “Once you read this email, please dele