NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 3 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

A. FROST; JOSE RA, individually and on No. 18-16188

behalf of all others similarly situated, D.C. Nos. 5:16-cv-05206-BLF Plaintiffs-Appellants, 5:16-cv-05586-BLF 5:16-cv-05673-BLF v.

LG ELECTRONICS, INC.; LG MEMORANDUM*

ELECTRONICS USA, INC.; SAMSUNG

ELECTRONICS COMPANY, LTD.;

SAMSUNG ELECTRONICS AMERICA,

INC.,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Beth Labson Freeman, District Judge, Presiding

Argued and Submitted January 22, 2020 San Francisco, California

Before: W. FLETCHER and R. NELSON, Circuit Judges, and MOLLOY,** District Judge.

The parties are familiar with the facts of this case and the record, so we do

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Donald W. Molloy, United States District Judge for the District of Montana, sitting by designation. not review them in detail here. Broadly, Plaintiffs’ Second Amended Consolidated

Class Action Complaint (“SAC”) alleges that beginning on January 1, 2005,

Defendants entered into a global conspiracy not to poach each other’s employees

in violation of Section 1 of the Sherman Act and the equivalent antitrust laws of

California and New Jersey.

The district court dismissed the SAC, finding that Plaintiffs failed to

plausibly allege the existence of a conspiracy. Relatedly, the district court granted

LG Electronics, Inc.’s motion to dismiss for lack of personal jurisdiction,

reasoning that because the sole basis of personal jurisdiction alleged by Plaintiffs

was the conspiracy, dismissal for lack of personal jurisdiction was necessarily

required. We review both decisions de novo and affirm.

Rule 8(a)(2) of the Federal Rules of Civil Procedure requires “a short and

plain statement of the claim showing that the pleader is entitled to relief.” The

Supreme Court has held that plaintiffs must put forth:

enough factual matter (taken as true) to suggest that an agreement was made. Asking for plausible grounds to infer an agreement does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal agreement.

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007). Building upon

Twombly and its companion case, Ashcroft v. Iqbal, 556 U.S. 662 (2009), we have

held that to state a claim for antitrust conspiracy, plaintiffs must allege “‘who, did

2 what, to whom (or with whom), where, and when?’” In re Musical Instruments &

Equip. Antitrust Litig., 798 F.3d 1186, 1194 n.6 (9th Cir. 2015) (quoting Kendall v.

Visa U.S.A., Inc., 518 F.3d 1042, 1048 (9th Cir. 2008)).

In the context of antitrust conspiracy claims, plaintiffs may meet their

burden by alleging parallel conduct among competitors and certain “plus factors”

suggesting a conspiracy. In re Musical Instruments, 798 F.3d at 1194.

Alternatively, plaintiffs may meet their burden by putting forth direct evidence of

an agreement. Id. at 1193. To meet the direct evidence standard, however, the

evidence must explicitly support the asserted proposition without requiring any

inference. See In re Citric Acid Litig., 191 F.3d 1090, 1093–94 (9th Cir. 1999).

Applying the foregoing law, Plaintiffs’ SAC fails to plausibly allege a

conspiracy. First, Plaintiffs do not allege parallel conduct in conjunction with plus

factors tending to show agreement. Instead, they rely on various statements made

by defendants’ employees and by a recruiter affiliated with Samsung as direct

evidence of agreement. But each of these statements requires inferences in order

to support the existence of a conspiracy and are, therefore, not direct evidence.

Considered collectively, the statements and all the plausible inferences that can be

drawn from them do not establish “who, did what, to whom (or with whom),

where, and when?” Kendall, 518 F.3d at 1048. Additionally, we note that because

Plaintiffs have failed to plausibly allege agreement, they have also failed to

3 plausibly allege that LG Electronics, Inc. is subject to personal jurisdiction in the

United States.

AFFIRMED.

4

FILED

Frost, et al. v. LG Electronics, et al., No. 18-16188 MAR 3 2020

MOLLY C. DWYER, CLERK

MOLLOY, District Judge, concurring: U.S. COURT OF APPEALS

I am not convinced that Kendall v. Visa U.S.A., Inc., 518 F.3d 1042 (9th Cir.

2008), is a proper application of the pleading standard set forth in Bell Atlantic

Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662

(2009). But as binding law in this Circuit, Kendall compels the result in this case.

For that reason, I concur.

FILED

Frost v. LG Electronics, Inc., No. 18-16188

MAR 3 2020

W. FLETCHER, J., dissenting: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I respectfully dissent. Plaintiffs—two former employees of LG Electronics

U.S.A., Inc.—allege that LG and Samsung entered into an agreement not to hire

employees from one another. They describe in their complaint statements to that

effect by employees of LG and Samsung subsidiaries. Although those statements

do not reflect the precise temporal or geographical scope of the alleged unlawful

agreement, I conclude they are enough to plausibly “suggest that an agreement was

made.” Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1047 (9th Cir. 2008) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). If Kendall is read to

require dismissal of plaintiffs’ complaint, it is inconsistent with the Supreme

Court’s decision in Twombly.

I would reverse the judgment of the district court and remand for further

proceedings.