DuPont Settles Titanium Dioxide Pricing Lawsuit

DuPont, the world’s largest maker of titanium dioxide, has agreed to pay $72 million to settle charges that it conspired to artificially increase prices of the white pigment.

The class-action suit, filed in 2010 by a number of small paint companies that buy the pigment, alleges that DuPont coordinated price increases with other TiO₂ makers between 2003 and 2013.

The suit also targeted pigment makers Kronos and Cristal, which may yet have to go to trial on the matter, and Huntsman Corp., which settled for $6.5 million last month to avoid protracted litigation. LyondellBasell Industries and Tronox were named as conspirators but were not sued because they were in bankruptcy when the suit was filed.

The TiO₂ market is volatile, according to Michael D. Brown, president of consulting firm StrategyMark, who wouldn’t comment on the case itself. Prices for the global commodity tend to fluctuate depending on supply, demand, and feedstock costs, he says. They have fallen from a high of about $4,400 per metric ton in early 2012 to about $3,300 today.

For DuPont, the settlement comes just weeks after it revealed plans to sell its TiO₂ business along with the rest of its performance chemicals division. “We believe that our conduct has at all times been entirely appropriate,” the firm says. The settlement, reached out of court but subject to court approval, could reassure potential buyers that the unit won’t be entangled in litigation.

According to court documents, plaintiffs alleged that DuPont joined a European trade group, the Titanium Dioxide Manufacturers Association, in 2002, allowing it and other TiO₂ makers to share global production data and coordinate price increases. Overcharges during the time the cartel behavior occurred amounted to as much as $2.7 billion, plaintiffs said.

In a recent decision not to dismiss the case against Kronos and Cristal, Maryland U.S. District Court Judge Richard D. Bennett noted that the plaintiffs’ case “stands on circumstantial evidence alone—there is no ‘smoking gun’ that explicitly reveals an agreement to conspire.” But circumstantial evidence could lead a jury to “infer a conspiracy.” Indeed, a “smoking gun” is rarely found in such cases, he wrote.