                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             NOV 20 2019
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


In re: OPTICAL DISK DRIVE                        No.    18-15058
PRODUCTS ANTITRUST LITIGATION,
______________________________                   D.C. No. 3:10-md-02143-RS

INDIRECT PURCHASER CLASS,
                                                 MEMORANDUM*
              Plaintiff-Appellant,

 v.

SAMSUNG ELECTRONICS
COMPANY, LTD.; et al.,

              Defendants-Appellees.


                    Appeal from the United States District Court
                       for the Northern District of California
                     Richard Seeborg, District Judge, Presiding

                      Argued and Submitted October 21, 2019
                                Portland, Oregon

Before: FARRIS, BEA, and CHRISTEN, Circuit Judges.

      Plaintiff Indirect Purchaser Class (“IPC”) appeals the district court’s order

granting summary judgment in favor of defendants in this class action alleging


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
violations of the Sherman Act, California’s Cartwright Act, and California’s Unfair

Competition Law. IPC contends that the class members, indirect purchasers of

optical disk drives (“ODDs”), were injured by an unlawful conspiracy to slow the

declining prices of ODDs.1 The district court granted summary judgment on the

issues of causation, injury, and damages based on IPC’s failure to create a genuine

dispute of material fact as to whether the overcharge was passed on to the class

members (the “pass-through” issue). We have jurisdiction pursuant to 28 U.S.C. §

1291 and review a grant of summary judgment de novo. Szajer v. City of Los

Angeles, 632 F.3d 607, 610 (9th Cir. 2011). We affirm.

      To survive summary judgment, IPC must create a genuine dispute as to

whether it suffered “antitrust injury . . . that flows from that which makes

defendants’ acts unlawful.” Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429

U.S. 477, 489 (1977). For IPC, this requires a showing that a supracompetitive

“overcharge was passed on . . . at all levels of the distribution chain,” ultimately

injuring the members of the class. In re Methionine Antitrust Litig., 204 F.R.D.

161, 164 (N.D. Cal. 2001); see also Phillip E. Areeda & Herbert Hovenkamp,




      1
             Because the parties are familiar with the facts, we recite only those
facts necessary to resolve this appeal.
                                           2
Antitrust Law: An Analysis of Antitrust Principles and Their Application ¶ 396 (4th

ed. 2013–18).

      IPC argues that the opinion of its economics expert, as well as certain

documentary evidence, suffices to create a genuine dispute of material fact on

pass-through. The expert’s opinion is that nearly all of the defendants’ alleged

overcharges were passed on to the class members in the form of either (i) higher

price, or (ii) reduced computer quality.

      In support of his opinion, IPC’s expert principally relies on certain

regression analyses. The district court correctly found that these regression

analyses, viewed in combination with the other record evidence, do not support the

inference that pass-through actually occurred. In short, the analyses set forth the

manner in which pass-through could have occurred, but they do not create a

genuine dispute that pass-through actually occurred in the manner described—i.e.,

that as a result of an overcharge on an ODD, market participants either charged

higher prices than they otherwise would have, or used lower quality components

that they otherwise would have. Thus, the district court properly concluded the

expert’s opinion was not supported by the facts in the record. Brooke Grp. Ltd. v.

Brown & Williamson Tobacco Corp., 509 U.S. 209, 242 (1993) (“When an expert

opinion is not supported by sufficient facts to validate it in the eyes of the law, or


                                            3
when indisputable record facts contradict or otherwise render the opinion

unreasonable, it cannot support a jury’s verdict.”); see also In re Online DVD-

Rental Antitrust Litig., 779 F.3d 914, 923–24 (9th Cir. 2015).

      IPC also identifies a variety of documentary evidence. Viewed in the light

most favorable to IPC, this evidence establishes that the ODD market was

competitive. However, whether viewed in isolation or in combination with the

other record evidence, it does not suffice to create a genuine dispute that pass-

through actually occurred. In order for a reasonable jury to decide in favor of IPC,

it would have to engage in speculation.

      In light of the foregoing, the district court’s order granting summary

judgment must be affirmed. We need not address the additional arguments

concerning damages raised by IPC, nor the alternative arguments raised by

defendants in their answering brief.

      AFFIRMED.




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