The US Court of Appeals for the Third Circuit raises the bar for plaintiffs for a price-fixing action by setting a “more likely than not” standard to evaluate circumstantial evidence (Valspar / DuPont de Nemours)

In its recent decision in Valspar Corp. v. E.I. DuPont de Nemours & Co., the Third Circuit raised the bar for plaintiffs opposing summary judgment in antitrust cases by setting a “more likely than not” standard to evaluate circumstantial evidence—a standard the dissent called an “unworkable burden” for plaintiffs. [1] Several years ago, a class of titanium dioxide [2] purchasers filed a price-fixing action against suppliers in the Maryland District Court. Valspar a purchaser, opted out of the class, bringing its own suit in the Delaware District Court. While the class case survived summary judgment, [3] when defendant-supplier DuPont filed for summary judgment against Valspar, the Delaware District Court granted DuPont’s motion despite being presented with “substantially the same

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Christopher Lebsock, Samantha Stein, The US Court of Appeals for the Third Circuit raises the bar for plaintiffs for a price-fixing action by setting a “more likely than not” standard to evaluate circumstantial evidence (Valspar / DuPont de Nemours), 14 September 2017, e-Competitions September 2017, Art. N° 96394

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