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
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)
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