Case 2:12-md-02311-SFC-RSW ECF No. 829, PageID.11242 Filed 10/03/14 Page 1 of 24
`
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`
`
`
`
`
`In Re: AUTOMOTIVE PARTS ANTITRUST
`LITIGATION
`
` 12-md-02311
`Honorable Marianne O. Battani
`
`ALL PARTS
`
`THIS RELATES TO: ALL CASES
`
`
`
`
`
`COMMENTS OF CERTAIN DEFENDANTS NOT IN THE WIRE HARNESS
`CASES ON THE END-PAYOR AND AUTOMOBILE DEALER PLAINTIFFS’ JOINT
`STATEMENT AND SUPPLEMENT TO JOINT STATEMENT REGARDING CLASS
`CERTIFICATION SCHEDULE IN THE WIRE HARNESS CASES
`
`The Defendants listed in Appendix A (“Commenting Defendants”), none of which are
`
`named as Defendants in the Wire Harness cases, but which are named as Defendants in other cases
`
`in this MDL proceeding, respectfully submit the following comments on the Joint Statement
`
`Regarding Class Certification Schedule (the “Joint Statement,” 12-cv-00103 Dkt. 211) and
`
`Supplement to Joint Statement Regarding Class Certification Schedule (the “IPP Supplement,”
`
`12-cv-00103 Dkt. 224) filed by the End-Payor and Automobile Dealer Plaintiffs (together,
`
`“Indirect Purchaser Plaintiffs”) in the Wire Harness cases because their proposals to delay class
`
`certification indefinitely and to conduct any trial in four phases threaten to affect cases other than
`
`the Wire Harness cases in this MDL proceeding.
`
`

`

`Case 2:12-md-02311-SFC-RSW ECF No. 829, PageID.11243 Filed 10/03/14 Page 2 of 24
`
`Although the IPP Supplement was filed solely in the Wire Harness cases, Commenting
`
`Defendants file this submission out of concern that Indirect Purchaser Plaintiffs are proposing that
`
`their trial structure be applied to all cases across all parts, and that even if Indirect Purchaser
`
`Plaintiffs do not directly intend for it to be applied to all parts, all subsequent parts may
`
`nonetheless be affected by rulings regarding trial structure in the Wire Harness cases. For the
`
`reasons outlined below, the IPP Supplement is unworkable, tramples Defendants’ constitutional
`
`due process and Seventh Amendment rights, and runs afoul of the procedural guarantees of
`
`Federal Rule of Civil Procedure 23. In light of these flaws, Commenting Defendants urge the
`
`Court to defer consideration of how the Wire Harness or any other case should be tried, set a class
`
`cerification schedule in the Wire Harness cases, and take up in due course with the input of the
`
`parties to each particular case the consideration of class certification schedules in the remaining
`
`cases.
`
`THE COURT SHOULD DISREGARD PLAINTIFFS’ PREMATURE PROPOSAL
`ABOUT TRIAL AND SHOULD SET A SCHEDULE FOR CLASS CERTIFICATION
`
`The only thing clear about the Indirect Purchaser Plaintiffs’ filings is that they are not what
`
`they purport to be—statements about a schedule for class certification in the Wire Harness cases.
`
`Nowhere in the filings do the Indirect Purchaser Plaintiffs suggest any deadline, time frame,
`
`duration, sequence, or other scheduling item whatsoever. Instead, they propose that there be no
`
`schedule, purportedly because setting a schedule now (when the Wire Harness cases have been
`
`pending for three years) would be “premature.” (Joint Statement, p. 1; IPP Supplement, p. 2).
`
`Implicitly acknowledging that their claims of prematurity in their Joint Statement are not
`
`well-founded, Indirect Purchaser Plaintiffs filed the IPP Supplement to put before the Court a
`
`proposed structure for trial. This turns the normal sequence of civil litigation on its head. Rule 23
`
`requires the issue of class certification to be decided at “an early practicable time.” Fed. R. Civ. P.
`
`
`
`2
`
`

`

`Case 2:12-md-02311-SFC-RSW ECF No. 829, PageID.11244 Filed 10/03/14 Page 3 of 24
`
`23(c)(1)(A). At a constitutional minimum, whether to certify a class must be decided before trial.1
`
`It makes no sense to assert that it is premature to set a schedule for class certification, but then to
`
`discuss how to structure the trial of whatever claims might remain for whatever classes, if any, that
`
`are certified. There is an obvious reason for Indirect Purchaser Plaintiffs to try this ploy. They
`
`face enormous challenges trying to meet the standards of Federal Rule of Civil Procedure 23(b)(3),
`
`and wish to avoid for as long as possible judicial scrutiny of their inability to certify any class.
`
`Indirect Purchaser Plaintiffs simply hope that their red herring proposal about trial will distract the
`
`Court from setting a timetable for resolution of an issue they want never to be resolved.
`
`The Court should not be distracted by Indirect Purchaser Plaintiffs’ proposal as to how to
`
`structure whatever trials might ultimately take place. There can be little doubt that trials, if in fact
`
`there will be any, are years away. So there is plenty of time for the parties and Court to see what
`
`classes (if any) are certified, what claims remain, and what issues have been resolved or narrowed
`
`by motion or stipulation. The parties can then make concrete proposals (as opposed to the vague
`
`and amorphous proposal in the IPP Supplement) and the Court can then make a decision based on
`
`a properly developed record.
`
`But the Court should set a schedule now for class certification in the Wire Harness cases.
`
`The Indirect Purchaser Plaintiffs claim that much discovery remains, that there is a risk of
`
`duplication of effort, and that coordinating discovery will be complex and difficult. But rather
`
`than offer any solutions or make any suggestion of what an appropriate timetable might be in light
`
`of these challenges, Indirect Purchaser Plaintiff throw up their hands and say that the class
`
`certification issue should be pushed out indefinitely. Ignoring the issue is no solution at all. This
`
`Court has been working hard towards establishing procedures to manage this litigation and there is
`
`
` 1 See discussion at pages 4-5 below.
`
`
`
`3
`
`

`

`Case 2:12-md-02311-SFC-RSW ECF No. 829, PageID.11245 Filed 10/03/14 Page 4 of 24
`
`no reason to delay as Indirect Purchaser Plaintiffs suggest, especially since the Wire Harness cases
`
`have already been pending for three years. The direct purchasers and each intermediate purchaser
`
`(such as dealers) will have to produce detailed evidence about their purchases of individual parts at
`
`issue in these cases, the prices they paid, and the prices they charged to their purchasers. While
`
`there will undoubtedly be complexities associated with coordinating discovery, the Court has
`
`appointed a Special Master to assist the parties in working through those issues. There is no reason
`
`not to get started.
`
`Further, Indirect Purchaser Plaintiffs’ proposal that class certification be delayed or
`
`avoided altogether is not only inappropriate, but it is unworkable because it also acts to delay each
`
`and every case currently in this MDL and others that may be included, in that the Court needs to
`
`decide whether to certify any class or classes well before Defendants’ deadlines for summary
`
`judgment. The reason for this is that a decision on the merits does not bind class members until a
`
`class has been certified and the opt-out period has expired. See Standard Fire Ins. Co. v. Knowles,
`
`133 S. Ct. 1345, 1349 (2013) (“a nonnamed class member is [not] a party to the class-action
`
`litigation before the class is certified”) (alterations in original) (quotation omitted). Unless and
`
`until the Court grants class certification and notice is given, members of the putative class are not
`
`parties to this action and are not subject to the Court’s rulings. See id; Taylor v. Sturgell, 553 U.S.
`
`880, 894, 901 (2008); see also Hansberry v. Lee, 311 U.S. 32, 43 (1940). These requirements,
`
`which are constitutionally mandated and “grounded in due process,” are “implemented by the
`
`procedural safeguards contained in Federal Rule of Civil Procedure 23” in the class action context.
`
`Taylor, 553 U.S. at 900–01. And “in the absence of a certification under that Rule, the
`
`precondition for binding [an absent class member] [is] not met.” Smith v. Bayer Corp., 131 S. Ct.
`
`2368, 2380 (2011).
`
`
`
`4
`
`

`

`Case 2:12-md-02311-SFC-RSW ECF No. 829, PageID.11246 Filed 10/03/14 Page 5 of 24
`
`Forcing Defendants to move for summary judgment prior to class certification and notice
`
`to the class would violate Rule 23’s prohibition against one-way intervention—a no-lose situation
`
`for putative class members who could remain a member of the class if the Court rules in their
`
`favor, but opt out if the Court makes an unfavorable merits ruling. American Pipe & Construction
`
`Co. v. Utah, 414 U.S. 538, 547-49 (1974); Gooch v. Life Investors Ins. Co. of Am., 672 F.3d 402
`
`(6th Cir. 2012). This tactic was a “recurrent source of abuse” and was the subject of “considerable
`
`criticism” until Rule 23 was revised to prevent it. American Pipe, 414 U.S. at 547-50. In fact, the
`
`notice provisions under Rule 23(c)(2) exist for the purpose of preventing “one-way intervention.”
`
`Id. at 547 (commenting that the 1966 amendments to Rule 23 responded to criticism that “it was
`
`unfair to allow members of a class to benefit from a favorable judgment without subjecting
`
`themselves to the binding effect of an unfavorable one”); Advisory Committee Notes, 1966
`
`Amendments to Rule 23 (“Under proposed subdivision 23(c)(3), one-way intervention is
`
`excluded.”). Rule 23(c)(2) provides that class notice must advise the members that “the judgment,
`
`whether favorable or not, will include all members who do not request exclusion,” and therefore
`
`class notice and the opportunity to opt out must precede any judgment. Id. (emphasis added).2
`
`Commenting Defendants urge the Court to set a class certification schedule in the Wire
`
`Harness cases, and eventually in the other cases in MDL 2311, within Rule 23’s guidelines that
`
`class certification be decided “at an early practicable time.” Doing so will allow these cases to
`
`proceed in a timely, efficient, and constitutional fashion.
`
`
` 2 See also Bertrand v. Maram, 495 F.3d 455 (7th Cir. 2007) (“Class-action status must be
`granted (or denied) early … to clarify who will be bound by the decision”); Schwarzschild v.
`Tse, 69 F.3d 293, 296 (9th Cir. 1995) (Rule 23 “clearly contemplates that the notice
`requirement will be met before the parties are aware of the district court’s judgment on the
`merits”).
`
`
`
`5
`
`

`

`Case 2:12-md-02311-SFC-RSW ECF No. 829, PageID.11247 Filed 10/03/14 Page 6 of 24
`
`IF THE COURT WERE TO CONSIDER PLAINTIFFS’ PROPOSAL ABOUT TRIAL, IT
`SHOULD REJECT IT
`
` As noted above, Commenting Defendants suggest that the Court defer any consideration
`
`of a trial structure and instead focus on a class certification schedule. If the Court wishes to
`
`consider questions of how to structure trials, Commenting Defendants suggest that the Court direct
`
`the parties to meet and confer, possibly with the Special Master, and to present their proposals and
`
`arguments consistent with an appropriate briefing schedule. Taking up this issue raised by Indirect
`
`Purchaser Plaintiffs under the guise of what was supposed to be a statement about a schedule for
`
`class certification in the Wire Harness case would be inappropriate and deprive the Court of the
`
`parties’ fullest discussion and consideration of the issues raised by the Indirect Purchaser
`
`Plaintiffs’ proposal.
`
`Another entirely sufficient reason to defer consideration of the Indirect Purchaser
`
`Plaintiffs’ proposal is that it is difficult to tell what they are even proposing. They filed the IPP
`
`Supplement in only the Wire Harness cases, but the IPP Supplement reads as if the Indirect
`
`Purchaser Plaintiffs are urging the Court to have some massive mega-trial involving scores of
`
`different defendants accused of participating in different conspiracies relating to different parts.
`
`The Indirect Purchaser Plaintiffs are studiously vague about what class or classes they are
`
`proposing—which itself is a reason to reject this proposal—but it appears they may have in mind a
`
`single class or a group of classes covering all parts. To date, however, not a single complaint in
`
`this MDL alleges that all Defendants in all cases in this MDL participated in a single overarching
`
`conspiracy. To the contrary, the different cases as to each part all allege entirely separate
`
`conspiracies, involving different defendants, different time periods, different products, and
`
`different alleged victims. Thus, if one mega-trial is in fact what Indirect Purchaser Plaintiffs are in
`
`
`
`6
`
`

`

`Case 2:12-md-02311-SFC-RSW ECF No. 829, PageID.11248 Filed 10/03/14 Page 7 of 24
`
`fact proposing, then due process requires that Defendants in cases other than the Wire Harness
`
`cases be given appropriate notice of such a proposal and a full opportunity to be heard on the issue.
`
`Commenting Defendants agree with the Wire Harness Defendants that such a trial would
`
`present grave constitutional and manageability concerns. As an initial matter, such a proposal is
`
`extremely premature for the majority of the product cases. Indeed, in contrast to the Wire Harness
`
`cases, which are three years old, there are still Defendants in later product cases who have not even
`
`been served, and many cases are either in the throes of motions to dismiss or do not yet have
`
`motion to dismiss briefing schedules. Moreover, Plaintiffs recently announced that they plan to
`
`file new cases involving at least three new products. (See Joint Statement, n. 4.) To say that it is
`
`premature at this time to determine how these cases should be tried several years from now is an
`
`understatement.
`
`Indirect Purchaser Plaintiffs’ four-phased trial proposal is unworkable for several
`
`additional reasons.
`
`First, the trial structure Plaintiffs apparently propose is inconsistent with the way in which
`
`they have filed, prosecuted, and even settled the various product cases to date. While the different
`
`product cases are organized under one MDL, they have not been consolidated with one another.
`
`Moreover, Plaintiffs continue to file cases that allege particular product-specific conspiracies. To
`
`date, not a single complaint in this MDL alleges that all Defendants in all product cases in this
`
`MDL participated in a single overarching conspiracy.
`
`Second, a proposal to conduct one large mega-trial ignores the fact that the Defendants are
`
`in very different positions in different cases. For instance, some auto parts suppliers are
`
`defendants in some cases, while for other parts they are direct purchasers and integrated the parts
`
`with others before selling the system to the OEM. Thus, the mega-trial structure Plaintiffs
`
`
`
`7
`
`

`

`Case 2:12-md-02311-SFC-RSW ECF No. 829, PageID.11249 Filed 10/03/14 Page 8 of 24
`
`apparently propose would result in a trial in which companies are both defendants and direct
`
`purchasers in the same proceeding, creating confusion and undue prejudice.
`
`Third, Plaintiffs’ proposal contemplates that there would be no class certification
`
`determination under Rule 23(b)(3) before the Phase I trial. As explained in detail in the Wire
`
`Harness Defendants’ response, that is wholly inappropriate. Indirect Purchaser Plaintiffs cannot
`
`side-step their obligations to meet Rule 23(b)(3)’s predominance and superiority requirements by
`
`breaking the trial into phases. In re Telectronics Pacing Sys., Inc., 172 F.R.D. 271, 290-291 (S.D.
`
`Ohio 1997) (finding that plaintiffs must meet the requirements of 23(a) and 23(b) before a court
`
`may determine if subclasses are appropriate). Nor is a Rule 23(c) issue class an appropriate
`
`vehicle to cure an otherwise defective class action that cannot pass muster under Rule 23(b)(3).
`
`Castano v. Am. Tobacco Co., 84 F.3d 734, 745 n.21 (5th Cir. 1996) (“A district court cannot
`
`manufacture predominance through the nimble use of subdivision (c)(4). The proper
`
`interpretation of the interaction between subdivisions (b)(3) and (c)(4) is that a cause of action, as
`
`a whole must satisfy the predominance requirement of (b)(3) . . . .”). See also Sacred Heart Health
`
`Sys., Inc. v. Human Military Healthcare Servs., Inc., 601 F.3d 1159, 1176 (11th Cir. 2010); Taylor
`
`v. CSX Transp., Inc., 264 F.R.D. 281, 296-97 (N.D. Ohio 2007). Doing so would undermine the
`
`very existence of the mandated Rule 23(b)(3) analysis. Castano, 84 F.3d at 745.
`
`Fourth, Indirect Purchaser Plaintiffs’ proposal is flawed in that it proposes severing trial in
`
`a manner that will unduly prejudice Defendants. In order to succeed on their claims for antitrust
`
`liability they will need to show a violation of the antitrust laws, which includes individual injury
`
`resulting from that violation (so-called “fact of injury” or “antitrust injury”), and measureable
`
`damages. In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 311 (3d Cir. 2008). However,
`
`Indirect Purchaser Plaintiffs propose postponing adjudication of the existence of their alleged
`
`
`
`8
`
`

`

`Case 2:12-md-02311-SFC-RSW ECF No. 829, PageID.11250 Filed 10/03/14 Page 9 of 24
`
`injury and damages until Phases 3 and 4 of trial, long after what they have incorrectly termed the
`
`“liability” trial in Phase 1 and at a point when the involvement of Defendants would be limited or
`
`possibly non-existent. This proposal ignores the fact that the issue of antitrust injury is inexorably
`
`intertwined with the issue of liability (i.e., impact/injury) in antitrust cases; bifurcation of these
`
`issues is infeasible. Windham v. Am. Brands, Inc., 565 F.2d 59, 70-71 (5th Cir. 1977) (overturning
`
`the decision to bifurcate issues of liability and damages in a proposed antitrust class action and
`
`finding that “[w]hether dealt with in a unitary trial or in a severed trial, the problem of proof of the
`
`individual claims and of the essential elements of individual injury and damage will remain and
`
`severance could only postpone the difficulty of such proof.”).
`
`Fifth, Indirect Purchaser Plaintiffs’ proposal would improperly strip Defendants of their
`
`rights to defend themselves by presenting evidence that the proposed Dealer and End-Payor
`
`classes were not harmed or were not harmed as much as they claim because of pass-through. As
`
`noted, antitrust impact is an essential element of Indirect Purchaser Plaintiffs’ underlying claims,
`
`and Defendants have a right to challenge the Indirect Purchaser Plaintiffs’ ability to demonstrate
`
`antitrust impact. Yet, Indirect Purchaser Plaintiffs’ proposal would entirely foreclose Defendants’
`
`ability to present any evidence regarding how the Dealer Plaintiffs may or may not have passed on
`
`alleged overcharges to the End-Payor Plaintiffs. Indirect Purchaser Plaintiffs assert that they are
`
`cooperating amongst themselves on this issue and they will work out that issue through a
`
`settlement. In effect, Indirect Purchaser Plaintiffs are attempting to turn one of the central
`
`elements of their claims, which they must prove against Defendants to have successful claims, into
`
`an issue that the Defendants have no ability to challenge and which will, according to Indirect
`
`Purchaser Plaintiffs’ prognostications, be an issue for them to simply agree on through a collusive
`
`plaintiff-only settlement in Phase IV. Indirect Purchase Plaintiffs who suffered no antitrust injury
`
`
`
`9
`
`

`

`Case 2:12-md-02311-SFC-RSW ECF No. 829, PageID.11251 Filed 10/03/14 Page 10 of 24
`
`at all would (if plaintiffs are successful at trial) obtain a determination that Defendants are liable to
`
`them. Commenting Defendants have a due process right to present a defense in this case and they
`
`object to Indirect Purchaser Plaintiffs’ attempt to alter the elements of their claims.
`
`Sixth, Indirect Purchaser Plaintiffs’ proposal would violate Defendants’ Seventh
`
`Amendment right to trial by jury. Insofar as Indirect Purchaser Plaintiffs propose that different
`
`juries be empaneled for each of the different phases, their proposal violates Defendants’ Seventh
`
`Amendment rights as different juries would be forced to issue verdicts involving overlapping legal
`
`and factual questions, which is not permitted. See Cimino v. Raymark Indus., Inc., 151 F.3d 297,
`
`311 (5th Cir. 1998); State of Alabama v. Blue Bird Body Co., Inc., 573 F.2d 309, 318 (5th Cir.
`
`1978). But even if Indirect Purchaser Plaintiffs are suggesting that one jury would slog through
`
`each of their four proposed phases, they have yet another problem because they are proposing that
`
`Phase IV of their trial—whether end-payors were harmed and by how much—will be determined
`
`through an agreement between the Indirect Purchaser Plaintiffs, and Defendants will have no
`
`ability to present their arguments to the jury. But those are liability and damages issues to which
`
`Defendants have a right to a jury trial under the Seventh Amendment. Id. Plaintiffs cannot
`
`structure the trial in a way that tramples Defendants’ constitutional rights simply so they can avoid
`
`difficult questions of pass-through in an effort to bypass the class certification requirements set
`
`forth in Rule 23(b)(3). Id.
`
`Seventh, Indirect Purchaser Plaintiffs’ proposal will not work because there will almost
`
`certainly be opt-out plaintiffs in each of the proposed classes. If some dealers opt out of the
`
`classes, then the amount of money paid into the pot at the proposed Phase III may be insufficient to
`
`compensate the class of End-Payor Plaintiffs claiming damages in Phase IV. If a dealer opts out of
`
`a class, that decision does not apply to the end-payors who bought from that dealer. Those
`
`
`
`10
`
`

`

`Case 2:12-md-02311-SFC-RSW ECF No. 829, PageID.11252 Filed 10/03/14 Page 11 of 24
`
`end-payors may remain in the proposed End-Payor class, but their total pool of money to divide
`
`with the proposed Dealer class will not adequately reflect their damages. On the other side of the
`
`coin, if significant end-payors opt out, e.g., large fleet purchasers, then the amount of damages
`
`paid into the pot at Phase III may be too large since the opt-outs would not share in the pot in Phase
`
`IV. This threatens to provide a windfall to the Dealer Plaintiffs since, under Indirect Purchaser
`
`Plaintiffs’ proposal, Defendants would be prevented from presenting any evidence of pass-through
`
`in the phases for which Defendants would be present. In short, Indirect Purchaser Plaintiffs’ idea
`
`of one pot of money that can be shared amongst all indirect purchasers does not make any sense
`
`because the opt-out procedure all but guarantees that not all indirect purchasers remain members
`
`of the proposed classes.
`
`Eighth, this antitrust MDL is a fundamentally different situation than interpleader, to
`
`which Indirect Purchaser Plaintiffs attempt to analogize. Namely, this MDL is nothing like
`
`interpleader since, as noted above, not all of the possible claimants will be present in each of the
`
`phases the Indirect Purchaser Plaintiffs propose. Again, there are likely to be substantial opt-out
`
`plaintiffs. Additionally, interpleader is a voluntary procedure that a defendant invokes. See Fed R.
`
`Civ. P. 22(a)(2). There is no such thing as a forced interpleader and Indirect Purchaser Plaintiffs
`
`present no authority to the contrary.3 State Farm Fire And Cas. Co. v. Tashire, 386 U.S. 523, 535
`
`(1967) (recognizing that “our view of interpleader means that it cannot be used to solve all the
`
`vexing problems of multiparty litigation arising out of a mass tort. But interpleader was never
`
`intended to perform such a function, to be an all-purpose ‘bill of peace.’”).
`
`
` 3 The fact that Indirect Purchaser Plaintiffs have to resort to arguing that their procedure is
`similar to the interpleader statute that ship owners voluntarily use when cargo is lost on the
`high seas speaks volumes. There is no statute that authorizes what Plaintiffs are attempting to
`do here and the Commenting Defendants certainly are not volunteering to follow Plaintiffs’
`ill-conceived approach.
`
`
`
`11
`
`

`

`Case 2:12-md-02311-SFC-RSW ECF No. 829, PageID.11253 Filed 10/03/14 Page 12 of 24
`
`Finally, Indirect Purchaser Plaintiffs’ proposal is flawed because it would require
`
`Defendants to pay into a settlement fund the amounts determined to be due after Phase III but
`
`before Phase IV. Thus, Plaintiffs would require Defendants to pay before the entry of a final
`
`judgment, before they can file a supersedeas bond, and before they can appeal. That would violate
`
`the Federal Rules, due process and fundamental notions of fairness.
`
`In short, Indirect Purchaser Plaintiffs’ proposed trial structure is not only premature, it is
`
`flawed to its core. They suggest an unprecedented approach to trial management that appears to
`
`obviate the need for the Court to ever certify classes of plaintiffs and strips Defendants of their
`
`ability to defend themselves in each of the separate conspiracies alleged. An antitrust case of this
`
`size and nature is not the appropriate instance to experiment with unprecedented methods of trial
`
`management, especially not a proposed method that conflicts with Rule 23’s requirements and
`
`tramples Defendants’ constitutional rights.
`
`Conclusion
`
` Commenting Defendants respectfully request this Court to reject Indirect Purchaser
`
`Plaintiffs’ trial management proposal and instead focus on scheduling class certification briefing
`
`in the Wire Harness cases.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`12
`
`

`

`Case 2:12-md-02311-SFC-RSW ECF No. 829, PageID.11254 Filed 10/03/14 Page 13 of 24
`
`Dated: October 3, 2014
`
`
`
`
`
`Respectfully submitted,
`
`
`
`By: /s/ George A. Nicoud III
`George A. Nicoud III (SBN 160111)
`tnicoud@gibsondunn.com
`Austin Schwing (SBN 211696)
`aschwing@gibsondunn.com
`Leslie A. Wulff (SBN 277979)
`lwulff@gibsondunn.com
`GIBSON, DUNN & CRUTCHER LLP
`555 Mission Street
`San Francisco, CA 94105
`Telephone: (415) 393-8200
`Facsimile: (415) 374-8458
`
`Counsel for Defendants Mitsuba Corporation
`and American Mitsuba Corporation
`
`By: /s/ Heather L. Kafele (with consent)
`Heather L. Kafele
`Keith Palfin
`Alison R. Welcher
`SHEARMAN & STERLING LLP
`801 Pennsylvania Avenue NW, Ste. 900
`Washington, DC 20004
`Telephone: (202) 508-8000
`Facsimile: (202) 508-8100
`hkafele@shearman.com
`keith.palfin@shearman.com
`alison.welcher@shearman.com
`
`Brian M. Akkashian
`PAESANO AKKASHIAN, PC
`132 N. Old Woodward Avenue
`Birmingham, MI 48009
`248-792-6886
`bakkashian@paesanoakkashian.com
`
`Counsel for Defendants JTEKT Corporation,
`JTEKT North America Corporation (formerly
`d/b/a Koyo Corporation of U.S.A.), and JTEKT
`Automotive North America, Inc.
`
`
`13
`
`
`
`
`
`

`

`Case 2:12-md-02311-SFC-RSW ECF No. 829, PageID.11255 Filed 10/03/14 Page 14 of 24
`
`
`
`
`
`
`
`
`
`
`
`By /s/ A. Paul Victor (with consent)
`A. PAUL VICTOR (pro hac vice)
`JEFFREY L. KESSLER (pro hac vice)
`MOLLY M. DONOVAN (pro hac vice)
`ELIZABETH A. CATE (pro hac vice)
`pvictor@winston.com
`jkessler@winston.com
`mmdonovan@winston.com
`ecate@winston.com
`WINSTON & STRAWN LLP
`200 Park Avenue
`New York, NY 10166
`Telephone: (212) 294-6700
`Facsimile: (212) 294-4700
`
`FRED K. HERRMANN (P49519)
`500 Woodward Avenue, Suite 2500
`Detroit, MI 48226
`Tel. (313) 961-0200
`fkh@krwlaw.com
`
`Counsel for Defendants NTN CORPORATION and
`NTN USA CORPORATION
`
`
`By: /s/ Debra H. Dermody (with consent)
`Debra H. Dermody
`Michelle A. Mantine
`REED SMITH LLP
`225 Fifth Avenue
`Pittsburgh, PA 15222
`Telephone: (412) 288-3302/4268
`Fax:
`(412) 288-3063
`Email: ddermody@reedsmith.com
`mmantine@reedsmith.com
`
`Howard B. Iwrey (P39635)
`Brian M. Moore (P58584)
`DYKEMA GOSSETT PLLC
`39577 Woodward Avenue
`Bloomfield Hills, Michigan 48304
`Telephone: (248) 203-0526
`Fax:
`(248) 203-0763
`Email: hiwrey@dykema.com
`bmoore@dykema.com
`
`
`14
`
`

`

`Case 2:12-md-02311-SFC-RSW ECF No. 829, PageID.11256 Filed 10/03/14 Page 15 of 24
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Counsel for Defendant SKF USA Inc.
`
`
`By: /s/ Steven A. Reiss (with consent)
`Steven A. Reiss
`Adam C. Hemlock
`WEIL, GOTSHAL & MANGES LLP
`767 Fifth Avenue
`New York, New York 10153-0119
`Tel.: (212) 310-8000
`Fax: (212) 310-8007
`steven.reiss@weil.com
`adam.hemlock@weil.com
`
`Fred K. Herrmann
`Matthew L. Powell
`Kerr, Russell and Weber, PLC
`500 Woodward Avenue, Suite 2500
`Detroit, MI 48226
`Tel.: (313) 961-0200
`Fax: (313) 961-0388
`fhermann@kerr-russell.com
`mpowell@kerr-russell.com
`
`Counsel for Defendants Calsonic Kansei
`Corporation and CalsonicKansei North America,
`Inc.
`
`
`
`
`
`By: /s/ Steven A. Reiss (with consent)
`Steven A. Reiss
`Adam C. Hemlock
`WEIL, GOTSHAL & MANGES LLP
`767 Fifth Avenue
`New York, New York 10153-0119
`Tel.: (212) 310-8000
`Fax: (212) 310-8007
`steven.reiss@weil.com
`adam.hemlock@weil.com
`
`Frederick R. Juckniess
`Schiff Hardin LLP
`350 South Main Street, Suite 210
`Ann Arbor, MI 48104
`Tel.: (734) 222-1504
`fjuckniess@schiffhardin.com
`
`15
`
`

`

`Case 2:12-md-02311-SFC-RSW ECF No. 829, PageID.11257 Filed 10/03/14 Page 16 of 24
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Counsel for Defendants Bridgestone Corporation
`and Bridgestone APM Company
`
`
`
`By: /s/Anita F. Stork (with consent)
`Anita F. Stork
`COVINGTON & BURLING LLP
`One Front Street
`35th Floor
`San Francisco, CA 94111
`Telephone: (415) 591-6000
`Fax: (415) 955-6550
`astork@cov.com
`
`Michael J. Fanelli
`COVINGTON & BURLING LLP
`1201 Pennsylvania Ave., NW
`Washington, D.C. 20004
`Telephone: (202) 662-6000
`Fax: (202) 662-5383
`Mfanelli@cov.com
`
`Maureen T. Taylor (P51939)
`Herbert C. Donovan (P63547)
`BROOKS WILKINS SHARKEY & TURCO
`PLLC
`401 Old South Woodward, Suite 400
`Birmingham, MI 48009
`Telephone: (248) 971-1721
`Fax: (248) 971-1801
`taylor@bwst-law.com
`donovan@bwst-law.com
`
`Counsel for Defendants Alps Electric (North
`America), Inc. and Alps Automotive, Inc.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`By: /s/ J. Clayton Everett, Jr. (with consent)
`J. Clayton Everett, Jr.
`MORGAN, LEWIS & BOCKIUS LLP
`1111 Pennsylvania Avenue, NW
`Washington, D.C. 20004
`Telephone: (202) 739-3000
`Email: jeverett@morganlewis.com
`
`16
`
`
`
`
`
`

`

`Case 2:12-md-02311-SFC-RSW ECF No. 829, PageID.11258 Filed 10/03/14 Page 17 of 24
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Counsel for Defendants Showa Corporation and
`American Showa, Inc.
`
`
`
`
`By: /s/ J. Clayton Everett, Jr. (with consent)
`J. Clayton Everett, Jr.
`Eyitayo St. Matthew-Daniel
`MORGAN, LEWIS & BOCKIUS LLP
`1111 Pennsylvania Avenue, NW
`Washington, D.C. 20004
`Telephone: (202) 739-3000
`Email: jeverett@morganlewis.com
`Email: tstmattew-daniel@morganlewis.com
`
`Counsel for Defendants Tokai Rubber Industries,
`Ltd. and DTR Industries, Inc.
`
`By: /s/ Craig P. Seebald (with consent)
`Craig P. Seebald
`Alden L. Atkins
`Lindsey R. Vaala
`VINSON & ELKINS LLP
`2200 Pennsylvania Avenue, N.W.
`Suite 500 West
`Washington, DC 20037
`Telephone: (202) 639-6585
`Facsimile: (202) 879-8995
`cseebald@velaw.com
`aatkins@velaw.com
`lvaala@velaw.com
`
`Counsel for Defendants Hitachi Automotive Systems,
`Ltd., Hitachi Automotive Systems Americas, Inc.,
`and Hitachi, Ltd.
`
`
`
`
`
`By: /s/ Robert J. Wierenga (with consent)
`Robert J. Wierenga (P59785)
`Suzanne L. Wahl (P71364)
`Schiff Hardin LLP
`340 S. Main Street, Suite 210
`Ann Arbor, MI 48104
`734-222-1500
`Fax: (734) 222-1501
`
`17
`
`

`

`Case 2:12-md-02311-SFC-RSW ECF No. 829, PageID.11259 Filed 10/03/14 Page 18 of 24
`
`
`
`
`
`rwierenga@schiffhardin.com
`swahl@schiffhardin.com
`
`David M. Zinn
`John E. Schmidtlein
`Samuel Bryant Davidoff
`Williams & Connolly LLP
`725 Twelfth Street, N.W.
`Washington, DC 20005
`202-434-5000
`Fax: 202-434-5029
`dzinn@wc.com
`jschmidtlein@wc.com
`sdavidoff@wc.com
`
`Counsel for Defendants Takata Corporation and TK
`Holdings Inc.
`
`
`By: /s/ Jeremy J. Calsyn (with consent)
`Jeremy J. Calsyn
`Teale Toweill
`CLEARY GOTTLIEB STEEN & HAMILTON
`LLP
`2000 Pennsylvania Avenue, NW
`Washington, DC 20006
`(202) 974-1522
`jcalsyn@cgsh.com
`
`David Ettinger
`HONIGMAN, MILLER, SCHWARTZ AND
`COHN LLP
`660 Woodward Avenue
`Suite 2290
`Detroit, MI 48226-3506
`(313) 465-7368
`dettinger@honigman.com
`
`Counsel for Defendants NSK Ltd. and NSK
`Americas, Inc.
`
`