T-Mobile U.S.A., Inc. v AU Optronics Corporation, et al

Filing 121

RESPONSE to re 117 Notice (Other), DIRECT ACTION PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION REGARDING TRIAL STRUCTURE AND DUPLICATIVE RECOVERY by T-Mobile USA Inc. (Levi, Alexander) (Filed on 4/4/2012)

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Jeffrey H. Howard (pro hac vice)
Jerome A. Murphy (pro hac vice)
CROWELL & MORING LLP
1001 Pennsylvania Avenue, N.W.
Washington, DC 20004
Telephone: [phone]
Facsimile: (202) -628-5116
Email: [e-mail]
[e-mail]
Jason C. Murray (CA Bar No. 169806)
Joshua C. Stokes (CA Bar No. 220214)
CROWELL & MORING LLP
515 South Flower Street, 40th Floor
Los Angeles, CA 90071
Telephone: [phone]
Facsimile: (213)-622-2690
Email: [e-mail]
[e-mail]
Counsel for Plaintiff Motorola Mobility, Inc.
[Additional counsel listed on signature page]

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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IN RE TFT-LCD (FLAT PANEL)
ANTITRUST LITIGATION

CASE NO. M:07-CV-1827-SI

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This Document Relates to:

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ALL ACTIONS

DIRECT ACTION PLAINTIFFS’
RESPONSE TO DEFENDANTS’
MOTION REGARDING TRIAL
STRUCTURE AND DUPLICATIVE
RECOVERY

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MDL No. 1827

Date:
Time:
Courtroom:
Judge:

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April 20, 2012
9:00 a.m.
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Honorable Susan Illston

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RESPONSE TO MOTION
RE TRIAL STRUCTURE
CASE M:07-CV-1827-SI

ATTO RNEY S AT LAW

DCACTIVE-18044203.1

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TABLE OF CONTENTS

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INTRODUCTION ........................................................................................................................... 1

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I.

THERE IS NO DUPLICATIVE RECOVERY ISSUE BETWEEN SHERMAN
ACT DIRECT PURCHASER PLAINTIFFS AND STATE LAW INDIRECT
PURCHASER PLAINTIFFS. .............................................................................................. 4

II.

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DEFENDANTS’ STATUTORY AND DUE PROCESS ARGUMENTS ARE
PREMATURE AND SPECULATIVE, AND PROVIDE NO BASIS FOR
CONSOLIDATING TRIALS. ............................................................................................. 6

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A.

State law does not justify consolidation of these trials. ........................................... 7

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Due process concerns do not call for consolidation of these trials. ......................... 8

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If any allocation of damages is eventually required, that will be a matter for
the court, not the jury. ............................................................................................ 11

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III.

CONSOLIDATION OF THESE CASES WOULD VIOLATE THE DIRECT
ACTION PLAINTIFFS’ RIGHTS AS OPT OUTS FROM THE CLASS ACTIONS...... 12

CONCLUSION .............................................................................................................................. 16

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ATTO RNEY S AT LAW

DCACTIVE-18044203.1

RESPONSE TO MOTION
RE TRIAL STRUCTURE
CASE NO. M:07-CV-1827- SI

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TABLE OF AUTHORITIES
CASES
BMW of North America, Inc. v. Gore,
517 U.S. 559 (1996) .............................................................................................................10
California v. ARC America Corp.,
490 U.S. 93 (1989) ..........................................................................................................2, 4, 6
Clayworth v. Pfizer, Inc.,
49 Cal. 4th 758 (2010) ............................................................................................................8
Daka, Inc. v. McCrae,
839 A.2d 682 (D.C. 2003).....................................................................................................12
Eccleston v. New York City Health & Hosps. Corp.,
698 N.Y.S.2d 869 (1999) ......................................................................................................12
Eisen v. Carlisle & Jacquelin,
417 U.S. 156 (1974) ..............................................................................................................13
Hanover Shoe, Inc. v. United Shoe Mach. Corp.,
392 U.S. 481 (1968) ............................................................................................................3, 4
Heath v. Alabama,
474 U.S. 82 (1985) ..................................................................................................................5
Illinois Brick Co. v. Illinois,
431 U.S. 720 (1977) ....................................................................................................2, 3, 4, 6
In re Flash Memory Antitrust Litig.,
643 F. Supp. 2d 1143 (quoting DRAM I, 516 F.Supp.2d at 1094.......................................2, 6
In Re Piper Funds, Inc., Institutional Gov’t Income Portfolio Litig.,
71 F.3d 298 (8th Cir. 1995)...................................................................................................13
Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach,
523 U.S. 26, 40 (1998) ..........................................................................................................15
Louis DeGidio Oil & Gas Burner Sales & Service, Inc. v. Ace Eng’g Co., Inc.,
302 Minn. 19 (1974) .............................................................................................................12
Mattel, Inc. v. MGA Entm’t, Inc.,
Case No. CV 04-9049 DOC (RNBx), 2011 U.S. Dist. LEXIS 85928 (C.D. Cal.
Aug. 4, 2011) ........................................................................................................................12
Morgan v. New York Life Ins. Co.,
559 F.3d 425 (6th Cir. 2009).................................................................................................12
Morrison Knudsen Corp. v. Ground Improvement Techniques, Inc.,
532 F.3d 1063 (10th Cir. 2008).............................................................................................12
People of State of California v. Zook,
336 U.S. 725 (1949) ................................................................................................................5

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RESPONSE TO MOTION
RE TRIAL STRUCTURE
CASE NO. M:07-CV-1827- SI

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Phillips Petroleum Co. v. Shutts,
472 U.S. 797 (1985) ..............................................................................................................13
Rodriguez v. City of Albuquerque,
No. CIV 07-0901 JB/ACT, 2008 U.S. Dist. LEXIS 108660 at *5 (D. N. M.
Dec. 22, 2008) .......................................................................................................................14
Simon v. San Paolo U.S. Holding Co., Inc., 35 Cal. 4th 1159 (2005) ........................................12

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State Farm Mutual Auto Insurance Co. v. Campbell,
538 U.S. 408 (2003) ..........................................................................................................9, 10

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Taylor v. Sturgell,
553 U.S. 880 (2008) ..............................................................................................................14

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Texas Industries, Inc. v. Radcliff Materials, Inc.,
451 U.S. 630 (1981) ................................................................................................................9

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Tice v. American Airlines, Inc.,
162 F.3d 966 (7th Cir. 1998)). ..............................................................................................14

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Union Carbide Corp. v. Superior Court,
36 Cal. 3d 15 (1984) ...........................................................................................................5, 8

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Western Union Telegraph Co. v. Commonwealth of Pennsylvania,
368 U.S. 71 (1961) ................................................................................................................10

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STATUTES
28 U.S.C. § 1404(a) ....................................................................................................................15
28 U.S.C. § 1407.........................................................................................................................15
735 Ill. Comp. Stat 5/2-1207.......................................................................................................12
Minn. Stat. Ann. § 325D.57 ..........................................................................................................7
Minn. Stat. Ann. § 645.44 Subd. 15 and 16..................................................................................7

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RESPONSE TO MOTION
RE TRIAL STRUCTURE
CASE NO. M:07-CV-1827- SI

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Plaintiffs Motorola Mobility, Inc. (“Motorola”); AT&T Mobility, LLC, AT&T Corp.,

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AT&T Services, Inc., BellSouth Telecommunications, Inc., Pacific Bell Telephone Company,

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AT&T Operations, Inc., AT&T DataComm, Inc., Southwestern Bell Telephone Company

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(collectively “AT&T”); Target Corporation; Sears, Roebuck and Co.; Kmart Corporation; Old

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Comp Inc.; Good Guys, Inc.; RadioShack Corporation; Newegg Inc.; ATS Claim LLC,

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Electrograph Systems, Inc. and Electrograph Technologies Corp.; MetroPCS Wireless, Inc.;

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Office Depot, Inc.; Interbond Corporation of America (BrandsMart); P.C. Richard & Son Long

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Island Corporation; MARTA Cooperative of America, Inc.; ABC Appliance, Inc.; Schultze

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Agency Services, LLC (Tweeter); and CompuCom Systems, Inc (“Electrograph”); Dell, Inc. and

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Dell Products L.P. (“Dell”); Nokia Corporation and Nokia Inc. (“Nokia”); T-Mobile; Eastman

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Kodak Company; Best Buy Co., Inc.; Best Buy Purchasing LLC; Best Buy Enterprise Services,

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Inc.; Best Buy Stores, L.P.; Best Buy.com, LLC; and Magnolia Hi-Fi, Inc.(“Best Buy”);

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Tracfone; Alfred H. Siegel, as Trustee of the Circuit City Stores, Inc. Liquidating Trust (“Circuit

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City”); SB Litigation Trust (collectively “Direct Action Plaintiffs”); hereby oppose LG Display

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Co., Ltd. and LG Display America, Inc.’s, AU Optronics Corporation and AU Optronics

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Corporation America, Inc.’s, and Toshiba Corporation, Toshiba Mobile Display Technology Co.,

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Ltd., Toshiba American Electronic Components, Inc., and Toshiba America Information Systems,

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Inc.’s (collectively “Defendants”) Motion Regarding Trial Structure and for Relief to Avoid

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Duplicative Recovery (“Defendants’ Motion”) (Dkt. Entry No. 5258) as follows:

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INTRODUCTION
Defendants deserve credit for boldness, if nothing else. They urge the Court to embark on

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an admittedly unprecedented restructuring of the trials in this MDL, without a single controlling

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case calling for such a restructuring. More specifically, Defendants request that the Direct Action

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Plaintiffs, in cases currently on different schedules, be brought back onto the earlier calendar with

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the class cases they have opted out of. On the eve of the class trials, and with the pretrial

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schedules for the different cases in place for well over two years, Defendants piece together a

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doomsday scenario under the mantle of a “threat” of “duplicative recovery” and request that this

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Court issue a fiat across the different cases preemptively minimizing Defendants’ total liability.

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With basic antitrust law and decades of civil antitrust practice against them, the Defendants

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instead rely on cases concerning interstate real property disputes and excessive punitive damages

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awards. These cases do not apply here, and well-established antitrust law and practice clearly

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allow any conflicts between remedies that may arise in these MDL cases to be resolved as they

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arise in the different cases, not preemptively before trial.

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The Defendants blithely assert a “due process” right to be free from multiple liability for

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price-fixing. In doing so, Defendants ask this Court to ignore Supreme Court precedent that

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expressly permits direct purchasers to bring federal claims for 100% of the overcharges, trebled,

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and simultaneously allows indirect purchasers to bring actions pursuant to state law. See

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California v. ARC America Corp., 490 U.S. 93, 101-02 (1989). According to the Supreme Court,

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such “multiple liability” does not violate any federal policy. Id.

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As Courts within this Circuit have recognized, “[s]tates . . . which have repealed Illinois

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Brick and allowed indirect purchasers to sue for antitrust violations, have necessarily made the

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policy decision that duplicative recovery may permissibly occur . . . [d]uplicative recovery is, in

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many if not all cases alleging a nationwide conspiracy with both direct and indirect purchaser

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classes, a necessary consequence that flows from indirect purchaser recovery.” In re Flash

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Memory Antitrust Litig., 643 F. Supp. 2d 1143, 1156 (quoting DRAM I, 516 F.Supp.2d at 1094.)

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Defendants half-heartedly purport to explain why their motion is appropriate for

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consideration now. But, in fact, there is absolutely no justification for the timing of Defendants’

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motion other than to disrupt the order, and delay the sensible resolution, of these cases. The

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ostensible justification for the motion is that the Defendants face the “risk” of multiple liability

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and that, Defendants claim, is precluded either by due process or state statutes. However, if the

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mere potential for such liability is the basis for Defendants’ motion, then it comes far too late.

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That potential has been present from the outset and Defendants should be deemed to have waived

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their arguments by delaying them, to the prejudice of all other parties. On the other hand, if—as

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we believe is the case—any due process or statutory duplication issue only will become ripe once

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such duplication is an actual as opposed to a theoretical issue, then Defendants’ motion must be

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RE TRIAL STRUCTURE
CASE NO. M:07-CV-1827- SI

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dismissed as premature. In either event, the time for the motion is not now.

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The Direct Action Plaintiffs’ response consists of three primary points:

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First, there is no duplicative recovery issue between direct purchaser plaintiffs suing under

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federal antitrust law and indirect purchaser plaintiffs suing under state law. Defendants

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cherry-pick sentences from Hanover Shoe, Illinois Brick, and ARC America to argue that the

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Court must “allocate damages” between federal and state law claimants to avoid “duplicative

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recovery,” but Defendants’ argument ignores the logic and holdings of each of those cases, as

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well as other cases that Defendants themselves cite. The claims brought by federal and state law

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plaintiffs stand separately, and each type of plaintiff is free to pursue its own claims without

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regard for the recovery that may be obtained by the other.

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Second, any duplicative recovery or due process concerns raised by potentially conflicting

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verdicts or allegedly “excessive” recoveries should be dealt with as those issues actually arise in

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the trials to come, not in advance, in the abstract, when such concerns are at best purely

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speculative and may never be presented in the actual cases. Indeed, Defendants’ proposed

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consolidation of all damage claims into one proceeding would not help the situation. It would

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only create a proceeding so complex as to be unmanageable. The juries in these cases will be

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taxed enough reaching verdicts in the separate cases; they would have to be super-human to be

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able to allocate damages across all the plaintiffs in this MDL in one giant damage proceeding, as

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Defendants request.

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Third, a consolidated trial or consolidated damage proceeding would preclude the Direct

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Action Plaintiffs from the full exercise of their own due process rights. Canceling the separate

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tracks for different plaintiffs would effectively nullify the Direct Action Plaintiffs’ constitutional

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right to opt out of the class actions. The Defendants are essentially requesting the Direct Action

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Plaintiffs be opted back in to the class actions against their will. No law supports such a result.

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RE TRIAL STRUCTURE
CASE NO. M:07-CV-1827- SI

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I.

THERE IS NO DUPLICATIVE RECOVERY ISSUE BETWEEN SHERMAN ACT
DIRECT PURCHASER PLAINTIFFS AND STATE LAW INDIRECT
PURCHASER PLAINTIFFS.
Under well-established federal law, there is no duplicative recovery issue between the

federal and state law plaintiffs in this MDL. Hanover Shoe established that a federal antitrust
plaintiff is entitled to 100% of any overcharge that it paid, regardless of whether some of that
overcharge was passed on to indirect purchasers. The Supreme Court held that “Hanover proved
injury and the amount of its damages for the purpose of its treble-damage suit when it proved that
United had overcharged it during the damage period and showed the amount of the overcharge,”
and did not allow a pass-on defense. Hanover Shoe, Inc. v. United Shoe Mach. Corp., 392 U.S.
481, 494 (1968). The Court stated that it was reaffirming earlier cases holding that any passingon of an overcharge is “irrelevant in assessing damages.” Id. at 490. While the Court indicated
that there might be rare situations where the logic of the opinion would not control—for example
when a plaintiff had a cost-plus contract—there is nothing in the opinion suggesting that the
Court thought that a pass-on defense and allocation of damages across distribution levels was
called for by federal law.
Next, in Illinois Brick, the Court reaffirmed its holding in Hanover Shoe that “in general a
pass-on theory may not be used defensively by an antitrust violator against a direct purchaser
plaintiff.” Illinois Brick Co. v. Illinois, 431 U.S. 720, 726 (1977). The Court stated that this
holding “rest[ed] on the judgment that the antitrust laws will be more effectively enforced by
concentrating the full recovery for the overcharge in the direct purchasers.” Id at 735. The Court
further held that indirect purchaser claims based on passed-on overcharges would not be
recognized under the federal antitrust laws. Id. at 728-729.
Finally, in ARC America, the Court held that federal antitrust law did not pre-empt state
law causes of action by indirect purchaser plaintiffs. ARC America, 490 U.S. at 101. The Illinois
Brick rule does not preclude state law indirect purchaser claims because “Congress intended the
federal antitrust laws to supplement, not displace, state antitrust remedies.” Id. at 102. The
Supreme Court rejected the argument that any “express federal policy condemning multiple

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liability” compelled a different result. Id. at 105. As the Court held, there is no “federal policy

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against States imposing liability in addition to that imposed by federal law.” Id.

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This holding raises precisely the possibility that Defendants’ brief focuses on: that a

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defendant could be held liable for one hundred percent of the overcharge damages, trebled, to the

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direct purchaser under federal law and also be liable to the indirect purchaser under state law.

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But that possibility of dual liability did not trouble the Court in the least. The Court did not say

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that federal and state law trials should be consolidated to coordinate remedies, or that damages

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would somehow have to be allocated between direct purchaser federal plaintiffs and indirect

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purchaser state plaintiffs. The Court in fact said just the opposite: “[T]hese state statutes cannot

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and do not purport to affect remedies available under federal law.” Id. at 103. Federal and state

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law plaintiffs can pursue their different claims without coordination and without allocation

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between each other, because under the federal antitrust laws there is no “policy against States

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imposing liability in addition to that imposed by federal law.” Id. at 105.1

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The California Supreme Court came to a similar conclusion in Union Carbide Corp. v.

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Superior Court, 36 Cal. 3d 15 (1984), a case cited by Defendants. There the defendants argued

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that California direct purchasers who were pursuing federal claims in a separate case should be

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brought into a pending Cartwright Act state case brought by indirect purchasers, because the

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federal claims supposedly created a risk of multiple liability. Id. at 22. The Court rejected that

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argument, finding that there is no substantial risk of multiple liability arising from the fact that the

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defendants “may be held liable in a federal suit under a federal statute to a person or class wholly

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different from the person or class to whom they are sought to be held liable in a California action

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under a California statute for the same tortious conduct.” Id. at 22-23. The Court noted that pass-

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on issues were “irrelevant to” the federal direct purchaser case because federal law “allows

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See also People of State of California v. Zook, 336 U.S. 725, 738 (1949) (“[T]he State
may punish as it has in the present case for the safety and welfare of its inhabitants; the nation
may punish for the safety and welfare of interstate commerce. There is no conflict.”); Heath v.
Alabama, 474 U.S. 82, 89 (1985) (quoting Westfall v. United States, 274 U.S. 256, 258 (1927))
(“[T]he proposition that the State and Federal Governments may punish the same conduct ‘is too
plain to need more than statement.’”).
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RE TRIAL STRUCTURE
CASE NO. M:07-CV-1827- SI

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recovery by the direct purchaser regardless of whether the overcharge was passed on.” Id. at 23.

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Thus, there was no need to join the actions of the federal direct purchasers, who were pursuing

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full federal law recovery in their case, to the actions of the California indirect purchasers, who

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were pursuing their full state law recovery under the Cartwright Act.

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The fact that antitrust defendants may be dually liable to the direct purchaser under federal

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law and to indirect purchasers under state law for the same overcharge is a “necessary

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consequence” of the Supreme Court’s decision in Arc America and of the Illinois Brick repealer

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statutes enacted by state legislatures:

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States . . . which have repealed Illinois Brick and allowed indirect purchasers to
sue for antitrust violations, have necessarily made the policy decision that
duplicative recovery may permissibly occur. Duplicative recovery is, in many if
not all cases alleging a nationwide conspiracy with both direct and indirect
purchaser classes, a necessary consequence that flows from indirect purchaser
recovery.

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In re Flash Memory Antitrust Litig., 643 F. Supp. 2d 1143, 1156 (quoting DRAM I, 516
F.Supp.2d at 1094.) In short, there is not even the conceptual possibility of a duplicative recovery
problem between federal law plaintiffs and state law plaintiffs. Defendants’ argument, in effect,
asks this Court to find that Arc America was wrongly decided and that every state statute that

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provides for indirect purchaser liability in antitrust cases is unconstitutional.

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II.

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DEFENDANTS’ STATUTORY AND DUE PROCESS ARGUMENTS ARE
PREMATURE AND SPECULATIVE, AND PROVIDE NO BASIS FOR
CONSOLIDATING TRIALS.

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Defendants also argue that the cases must be consolidated because Defendants are

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potentially at risk of duplicative recoveries by plaintiffs suing from different levels of the

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distribution chain. This risk, Defendants say, imperils their due process rights and contravenes

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various state statutes. However, as explained below, the state statutes that Defendants cite do not

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require the consolidation they seek. Meanwhile, Defendants’ due process argument is entirely

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misconceived, and any potential due process issue is far more limited than Defendants suggest.

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To the extent that there is even a possibility of some issue of duplicative recovery or a due

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process issue arising in the future, that possibility is purely speculative at this point, and

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consolidating cases for a full trial or a damage trial would make the efficient resolution of these

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cases impossible.

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A.

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The state statutes discussed at pages 13-14 of Defendants’ brief (“Def. Mem”) provide

State law does not justify consolidation of these trials.

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only that (1) in some states, a defendant can assert a pass-on defense; (2) in some states, a court

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should exclude from a damage award any amount that has already been awarded for the same

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injury in a previous case; (3) in some states, courts are authorized to use their discretion to

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transfer or consolidate cases if necessary in order to manage duplicative recovery issues; and (4)

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in at least one state, the courts have wide discretion to permit duplicative recovery.2

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Nothing in those statutes argues for consolidation in this case, because consolidation is not

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needed here to deal with any potential issues of duplicative recovery. Indeed, consolidation

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would make the damage issues in these cases virtually unmanageable. The upcoming class trial

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will determine the right to recovery for the direct purchaser class suing under federal law and the

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consumer class suing under certain state laws. Subsequent trials will determine the right to

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recovery for other parties who are not members of the classes. If Defendants believe that some

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damage award to class members in the first trial limits the amount that can be recovered by other

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plaintiffs in later trials under the state laws applicable to those claims, the sensible way to deal

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with that argument is in the context of a concrete issue. Once there has been an actual judgment

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and recovery in the prior case, the Court and the parties can know exactly what the duplicative

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recovery issue is, assuming one exists at all.

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It is not sensible to consolidate all these plaintiffs into one large damage trial and ask the

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jury to sort out damages across all the plaintiffs in the MDL. Defendants spend a large portion of

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their brief emphasizing the variety and complexity of the many different distributions chains

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involved in these cases. That Defendants would then turn around and dump all of this complexity

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See, e.g., Minn. Stat. Ann. § 325D.57 (“In any subsequent action arising from the same
conduct, the court may take any steps necessary to avoid duplicative recovery against a
defendant.”) (emphasis added.) Thus, the Minnesota Legislature has plainly given courts wide
discretion to permit a duplicative recovery based on specific circumstances in the case. See Minn.
Stat. Ann. § 645.44 Subd. 15 and 16 (defining “may” as permissive and “shall” as mandatory).
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into the lap of one jury—to have them do one master damage allocation covering every plaintiff

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in the MDL—is incredible.

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For example, Defendants say that a recovery by a consumer plaintiff bringing indirect

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purchaser claims in the class trial might limit recoveries that could be awarded to direct purchaser

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plaintiffs or retailers who were upstream purchasers of the same panel that was ultimately sold to

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the consumer. Even assuming that Defendants are right about that, it makes no sense to drag the

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direct purchaser and the retailer plaintiffs into the same case as the consumer class plaintiffs and

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force the jurors to hear at least three different damage experts (one for the direct purchases, one

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for the retailers, one for the consumers) testify about the overcharge incurred at each level of the

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distribution chain and the amount of the overcharge that was then passed on downstream—and to

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do that not only for one set of direct purchaser/retailer/consumer plaintiffs, but for every party in

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every case in this MDL, taking into account the varying requirements of multiple state statutes.

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No real-world jury could be expected to deal with a damage proceeding of that complexity.3

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B.

Due process concerns do not call for consolidation of these trials.

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In addition to being speculative and premature, Defendants’ due process argument

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fundamentally misconceives the nature of the due process issue. Due process does not focus on

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the potential liability that a defendant theoretically faces, but rather on how much a particular

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defendant is actually obligated to pay. Thus, until an individual defendant is in the position of

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actually having to pay an amount that raises a possible due process issue, there is no due process

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question that needs to, or ought to, be addressed. Defendants typically do not get a pre-trial

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In addition to relying on various state statutes, Defendants assert that the California
Supreme Court in Clayworth v. Pfizer, Inc., 49 Cal. 4th 758 (2010) ”held” that a pass-on defense
must be allowed where the possibility of duplicative recovery exists. See Def. Mem. at 2, 14. In
fact, the statement that Defendants quote was dicta. The question before the court was whether to
allow a pass-on defense in Cartwright Act cases—a proposition that the court rejected. 49 Cal. 4th
at 764,766. In any event, it is unnecessary to deal with any potential duplicative recovery issues
now because the Court can resolve any actual issues after the class trials and Direct Action
Plaintiff trials have concluded without creating the unmanageable mega-trial proposed by
Defendants here. Indeed, the court in Clayworth noted with approval the approach adopted by
Hart-Scott-Rodino “of [limiting] duplicative recoveries . . . by allowing damages already paid to
be offset against subsequent damages claims.” Id. at 777 (citing 15 U.S.C. §15c(a)(1)); see also
Union Carbide Corp., 36 Cal. 3d at 22-23, discussed at page 4 above.
3

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ruling about the due process limits on a jury’s award. Rather, juries make an award and then the

2

court can, if asked, review the award to see if there is a potential due process issue. Nothing

3

about this case is any different.

4

Defendants’ due process argument is further misconceived because it focuses on the

5

collective amount that various plaintiffs might recover, rather than on each defendant’s joint and

6

several liability for participating in an unlawful conspiracy. The implicit premise of Defendants’

7

argument is that due process is violated if the Defendants collectively face the possibility of

8

multiple liability to different levels of purchasers in the distribution chain. However, that is

9

fundamentally incorrect. Due process is a right individual to a particular defendant and it protects

10

that defendant only against being punished excessively by having to pay more than a

11

constitutionally permissible amount. See State Farm Mutual Auto Insurance Co. v. Campbell,

12

538 U.S. 408, 409 (2003) (“the Due Process Clause . . . prohibits the imposition of grossly

13

excessive or arbitrary punishments on a tortfeasor”) (emphasis added). Thus, the due process

14

right asserted by Defendants is not a limitation on what a group of plaintiffs can collect or on

15

what a group of defendants can be required to pay in the aggregate. It is, at most, the right of a

16

particular defendant not to be “excessively” punished for the conduct it has engaged in. That is

17

not the argument advanced in Defendants’ motion and the difference is fatal to their motion.

18

A member of an illegal price-fixing conspiracy is liable jointly and severally for the full

19

amount of harm caused to the plaintiff by the conspiracy of which a defendant is a member. A

20

plaintiff who takes multiple defendants to trial and obtains a judgment against them is free to

21

enforce its judgment in full against all, or any one of them, in such proportions as it chooses.

22

Moreover, under the Supreme Court’s decision in Texas Industries, Inc. v. Radcliff Materials,

23

Inc., 451 U.S. 630 (1981), a defendant found liable for violating the antitrust laws along with

24

other parties has no right of indemnity or contribution from other members of the conspiracy.

25

Thus, if a jury assesses damages jointly and severally against five defendants in the amount of

26

$10 million, any individual defendant could end up being required to pay the entire $10 million—

27

although the plaintiff, of course, can only collect the amount of its judgment once. It necessarily

28

follows that any participant in an antitrust conspiracy can, at a minimum, be required to pay three

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CASE NO. M:07-CV-1827- SI

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times the amount of the total damages caused by a conspiracy without any possible claim that its

2

due process rights thereby have been violated. This principle is critical here because it

3

undermines the essential premise of Defendants’ due process argument.

4

Defendants’ motion asserts that there is a due process issue because of the “risk” of

5

damage awards in the various LCD cases that, in the aggregate, exceed three times the harm

6

caused by the conspiracy. According to Defendants, the “threat of [such] duplicative recovery”

7

violates their constitutional rights. But, as we have explained, that argument misses the point.

8

Due process—to the extent it applies here at all—necessarily relates only to a limit on the amount

9

of punishment that may actually be imposed on a particular defendant. It has nothing to do with

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

the amount that plaintiffs could theoretically collect from the defendants in the aggregate.4
Defendants cite various punitive damages cases in which the Supreme Court has limited
the amount of punishment that can be imposed on a defendant. However, Defendants refer to no
case in which a group of defendants have asserted (let alone successfully asserted) a “collective”
due process limit on the amount that they, as a group, can be required to pay in damages.
The cited punitive damages cases are inapposite. Defendants argue that the “guideposts”
adopted by the Supreme Court in State Farm Mutual Auto Insurance Co. v. Campbell, 538 U.S.
408, 417 (2003) for the post-judgment review of punitive damage awards should be applied
prospectively by this Court to prevent potentially inconsistent awards of compensatory damages.
However, State Farm dealt with constitutional limits on unfettered jury awards of punitive
damages, not the ascertainment of actual damages by a jury in an antitrust case that are
automatically trebled by statute. Id. at 417. Furthermore, both State Farm and BMW were
similarly concerned with punitive damages awards based on conduct that was lawful in the state
where it occurred, not the situation here where the jury will be asked to award actual damages
based on the Defendants’ price fixing activities that are uniformly illegal in the U.S. Id. at 42123; BMW of North America, Inc. v. Gore, 517 U.S. 559, 568 (1996).
Defendants also cite to Western Union Telegraph Co. v. Commonwealth of Pennsylvania,
368 U.S. 71 (1961), but that case is equally inapposite. Western Union did not address antitrust
liability under state and federal law, and, in fact, did not address tort liability at all. Rather, the
case upon which Defendants rely for their sweeping constitutional argument about antitrust
damages, concerns the in rem jurisdiction of the states. In Western Union, certain unclaimed
property arguably existed in two states, with each state having jurisdiction over the property and
the power to order its relinquishment. Id. at 75. The Court held that Western Union could not be
forced to relinquish the unclaimed property to one state without assurance that it would not be
required to relinquish the same property to another state. Id. There was a single “pot of money”
and multiple claimants, and the Court understandably held that Western Union could not be liable
to pay out more than the amount in the “pot” to multiple claimants. Id. at 76-77. However, not
only is that situation readily distinguishable from the joint and several tort liability of antitrust
defendants, but as explained above, no defendant has the right to claim that its due process rights
are implicated unless and until it is required to pay more than three times the total damages
caused by a conspiracy in which it was a participant. Thus, Defendants’ analogy to the single pot
of money in Western Union is misguided. A more proper analogy would be one pot for each
jointly and severally liable cartel member.
4

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CASE NO. M:07-CV-1827- SI

1

These principles do not make due process irrelevant here. They do, however, put the due

2

process argument in correct terms and demonstrate why Defendants’ current motion is without

3

merit. Assuming, arguendo, that due process limits the amount that a defendant can be forced to

4

pay to three times the amount of damages for which that defendant may be held jointly and

5

severally liable, that right comes into play only if, and only to the extent that, the defendant can

6

demonstrate that it is being forced to pay an amount in excess of that limit. Until that happens,

7

however, there is no due process violation to avoid; there is only speculation that ultimately a

8

defendant might find itself with a due process claim. That speculation is no reason to consolidate

9

the damage trials of these cases.

10
11
12

C.

If any allocation of damages is eventually required, that will be a matter for
the court, not the jury.

It is far from clear that even if some limited form of allocation were required under certain

13

state statutes that this process would require consideration by a jury as opposed to the Court.

14

That would be true even if there is a possibility that compliance with state statutes might

15

implicate the class recoveries, since it is unlikely that there will be a final distribution of funds to

16

the classes for a considerable period of time. Certainly none of the state statutes cited by

17

Defendants require jury consideration for their application and, in fact, it would be hard to see

18

how a jury could apply the several, very differently worded, statutes in any event.

19

The same is true as to any allocation that might eventually be required by due process.

20

There is not even a hint in any of the cases cited by Defendants that due process limitations are to

21

be applied by a jury. A jury’s prerogative to determine an appropriate punitive damage award

22

may be subject to limitation thereafter by a court, applying standards laid down by the Supreme

23

Court, but the jury has no role to play in that later determination. The role of a jury in addressing

24

due process issues is even more clearly beside the point in an antitrust case, since the imposition

25

of “punishment” in the form of trebling is automatic, not discretionary, and juries are not even

26

instructed about the fact that their damage award will be multiplied by three.

27

Moreover, courts routinely address due process objections through post-trial remittitur.

28

Under both federal and state law, the Court can and should utilize remittitur to address any due

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process claim of purported punitive damages. See Morgan v. New York Life Ins. Co., 559 F.3d

2

425, 443 (6th Cir. 2009) (“we will vacate the award and remand the case to the district court for

3

an order of remittitur that will set the punitive damages in an amount that it determines is

4

compatible with due process.”); 735 Ill. Comp. Stat 5/2-1207 (“The trial court may, in its

5

discretion, with respect to punitive damages, determine whether a jury award for punitive

6

damages is excessive, and if so, enter a remittitur and a conditional new trial.”); Simon v. San

7

Paolo U.S. Holding Co., Inc., 35 Cal. 4th 1159, 1187 (2005) (the “appropriate order” to address

8

excessive punitive damages is a remittitur); Daka, Inc. v. McCrae, 839 A.2d 682, 701-02 (D.C.

9

2003).

10

Similarly, the Court can utilize remittitur to address any due process concerns regarding

11

duplicative damages. See, e.g., Mattel, Inc. v. MGA Entm’t, Inc., Case No. CV 04-9049 DOC

12

(RNBx), 2011 U.S. Dist. LEXIS 85928, 56-57 (C.D. Cal. Aug. 4, 2011) (remittitur is proper

13

vehicle to address claim of duplicative recovery); Morrison Knudsen Corp. v. Ground

14

Improvement Techniques, Inc., 532 F.3d 1063, 1079 (10th Cir. 2008); Eccleston v. New York City

15

Health & Hosps. Corp., 698 N.Y.S.2d 869, 870 (1999); Louis DeGidio Oil & Gas Burner Sales

16

& Service, Inc. v. Ace Eng’g Co., Inc., 302 Minn. 19, 29 (1974).

17

Although the DAPs hope that at some point they might be sufficiently successful that the

18

Court may need to confront a properly-articulated due process issue, until that happens

19

Defendants’ due process motion is ill-conceived and premature, and should be denied.

20
21

III.

CONSOLIDATION OF THESE CASES WOULD VIOLATE THE DIRECT
ACTION PLAINTIFFS’ RIGHTS AS OPT OUTS FROM THE CLASS ACTIONS.

22

Defendants suggest a variety of steps in response to the supposed duplicative recovery

23

problem: consolidating all of the cases for trial; bifurcating each trial into liability and damage

24

phases and having one combined damage trial; forcing the Direct Action Plaintiffs to become

25

parties in the class case; deeming Direct Action Plaintiffs to be estopped by results reached in the

26

class case; and more. The fatal flaw in all these approaches—even setting aside the fact that

27

consolidated trials of this sort would present insurmountable management problems—is that they

28

all violate the Direct Action Plaintiffs’ due process rights as opt outs from the class actions.

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RESPONSE TO MOTION
RE TRIAL STRUCTURE
CASE NO. M:07-CV-1827- SI

1
2

Members of a purported damage class have a constitutional due process right to opt out of

3

that class. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812 (1985) (“due process requires

4

at a minimum that an absent plaintiff be provided with an opportunity to remove himself from the

5

class”); In Re Piper Funds, Inc., Institutional Gov’t Income Portfolio Litig., 71 F.3d 298, 303

6

(8th Cir. 1995) (“Reflecting due process principles, Fed.R.Civ.P. 23 (c)(2) requires that a putative

7

member of a Rule 23 (b)(3) class action be given the opportunity to opt out and not be bound by

8

the judgment.”).

9

A plaintiff who wishes to litigate his claim on his own, rather than be at the mercy of the

10

decisions of class action counsel and be bound by a settlement or verdict in the class action case,

11

must have an opportunity to opt out. “[A]nd if he takes advantage of that opportunity he is

12

removed from the litigation entirely.” Phillips Petroleum, 472 U.S. at 810-11 (emphasis added).

13

The law gives a prospective class member a clear choice: he can stay in the class and be bound by

14

the results of the class trial, or he may choose to opt out “and thereby preserve his opportunity to

15

press his claim separately.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 176 (1974).

16

Defendants—who struggle to construct a due process argument for their favored outcome—

17

completely ignore this due process right.

18

Defendants suggest that the Direct Action Plaintiffs should be brought back into the class

19

action cases as parties to those cases, or have their claims tried in a consolidated proceeding with

20

the class cases. But that is inconsistent with the right to opt out, the whole point of which is that

21

an opt-out plaintiff must be allowed to remove himself from the class litigation entirely. The

22

Direct Action Plaintiffs chose to be represented by their own attorneys proceeding in their own

23

cases precisely so they would not be dependent on the trial strategies and damage methodologies

24

chosen by class counsel. Defendants act as if the Court should ignore the Direct Action

25

Plaintiffs’ due process right to present their claims in the way they want them presented, and

26

instead casually throw the Direct Action Plaintiffs back into the class trial.

27

Defendants further argue that even if the Direct Action Plaintiffs’ claims are tried

28

separately, specific findings reached in the class case should be given preclusive effect in the later

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RE TRIAL STRUCTURE
CASE NO. M:07-CV-1827- SI

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cases. Again, Defendants are arguing that the Direct Action Plaintiffs should be stuck with

2

results reached in a case they opted out of. Defendants suggest that such an outcome would be

3

consistent with the Supreme Court’s holding in Taylor v. Sturgell, 553 U.S. 880 (2008).

4

(Def. Mem. at 21-23.) But nothing could be further from the truth; Taylor shows precisely why

5

the Defendants’ argument for estoppel must be rejected. In that case, Mr. Taylor brought a

6

lawsuit seeking documents from the Federal Aviation Administration under the Freedom of

7

Information Act; an earlier suit raising virtually identical issues had been decided in favor of the

8

FAA. The trial court granted summary judgment to the FAA and against Mr. Taylor on claim

9

preclusion grounds. The D.C. Circuit affirmed, relying on a theory of “virtual representation.”

10

The Circuit Court reasoned that even though Mr. Taylor had not been a party to the prior case, his

11

claims could be precluded because he had the same interest as the prior litigant, had a “close

12

relationship” with that litigant, and his position had been adequately represented in the prior case.

13

Taylor, 553 U.S. at 889-890.

14

The Supreme Court vacated the Circuit’s opinion, emphasizing “the fundamental nature of

15

the general rule that a litigant is not bound by a judgment to which she was not a party.” Id. at

16

898. The Court also stated that “[a] person who was not a party to a suit generally has not had a

17

‘full and fair opportunity to litigate’ the claims and issues settled in that suit,” id. at 892, and cited

18

with approval the traditional doctrines strictly limiting the scope of non-party preclusion. As a

19

result, the Court expressly disapproved an expansive doctrine of virtual representation that it said

20

would “allow[ ] courts to ‘create de facto class actions at will.’” Id. at 901 (quoting Tice v.

21

American Airlines, Inc., 162 F.3d 966, 973 (7th Cir. 1998)).

22

This, of course, is exactly what Defendants are trying to do here—rely on an argument of

23

“virtual representation” to create a de facto class action encompassing all the cases in this MDL.

24

See also Rodriguez v. City of Albuquerque, No. CIV 07-0901 JB/ACT, 2008 U.S. Dist. LEXIS

25

108660 at *5 (D. N. M. Dec. 22, 2008) (applying Taylor; people who chose not to join a class

26

action “should know that they will not be later bound by that case in which they intentionally

27

chose not to participate”). Such an outcome would violate the Direct Action Plaintiffs’ due

28

process rights.

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DCACTIVE-18044203.1

RESPONSE TO MOTION
RE TRIAL STRUCTURE
CASE NO. M:07-CV-1827- SI

1
2

Moreover, Defendants’ proposed consolidation of all of the MDL cases for trial, or for a

3

trial on damages, is not only unnecessary and unwise, it is also impossible where the cases were

4

filed in other jurisdictions and were later transferred to this Court. Pursuant to 28 U.S.C. § 1407,

5

all cases, other than actions by state attorneys general pursuant to § 4C of the Clayton Act, that

6

were transferred to this Court by the Judicial Panel for Multidistrict Litigation from other districts

7

will be remanded to the districts of origination “at or before the conclusion of such pretrial

8

proceedings.” As the Supreme Court unequivocally held in Lexecon Inc. v. Milberg Weiss

9

Bershad Hynes & Lerach, 523 U.S. 26, 40-41 (1998), a transferee court does not have the

10

authority to reassign cases to itself for trial.

11

Defendants suggest that this Court could avoid Lexecon by ordering defendants to file

12

motions seeking to transfer the actions brought in other districts to this Court for trial pursuant to

13

28 U.S.C. § 1404(a). But § 1404(a) requires more than a motion by defendants. It requires proof

14

that each action could have been brought in this district or requires the consent of all parties to

15

trial in this district. It may well be that one or more Direct Action Plaintiffs will ultimately

16

request that their cases be tried before this Court, but Plaintiffs who wish to return to the

17

jurisdictions in which they filed are under no obligation to provide such consent to transfer and

18

the transferor Courts are not obligated to grant any such motions. At this point, it is not at all

19

clear that each of the MDL cases will be transferred to this Court for trial pursuant to §1404(a).

20

Defendants’ suggestion that this Court should order Defendants to seek § 1404(a) transfers from

21

the originating districts has no purpose other than adding unnecessary delay and expense.

22

///

23

///

24

///

25

///

26

///

27

///

28

///

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RESPONSE TO MOTION
RE TRIAL STRUCTURE
CASE NO. M:07-CV-1827- SI

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2

CONCLUSION
For the foregoing reasons, Defendants’ motion should be denied.

3
4

DATED: April 4, 2012

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12

Liaison Counsel for Direct Action
Plaintiffs and Counsel for Motorola
Mobility, Inc.; AT&T Mobility, LLC;
AT&T Corp.; AT&T Services, Inc.;
BellSouth Telecommunications, Inc.;
Pacific Bell Telephone Company;
AT&T Operations, Inc.; AT&T
DataComm, Inc.; Southwestern Bell
Telephone Company; Target
Corporation; Sears, Roebuck and
Co.; Kmart Corporation; Old Comp
Inc.; Good Guys, Inc.; RadioShack
Corporation; and Newegg Inc.

13
14
15

By: /s/ Jerome A. Murphy
.
Jerome A. Murphy (pro hac vice)
Jeffrey H. Howard (pro hac vice)
CROWELL & MORING LLP
1001 Pennsylvania Avenue, N.W.
Washington, DC 20004
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]
Jason C. Murray (CA Bar No. 169806)
Joshua C. Stokes (CA Bar No. 220214)
CROWELL & MORING LLP
515 South Flower St., 40th Floor
Los Angeles, CA 90071
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]
R. Bruce Holcomb (pro hac vice)
ADAMS HOLCOMB LLP
1875 Eye Street NW
Washington, DC 20006
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

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DCACTIVE-18044203.1

RESPONSE TO MOTION
RE TRIAL STRUCTURE
CASE NO. M:07-CV-1827- SI

1
2
3

Counsel for Plaintiff ATS Claim,
LLC

4
5

By: /s/ David P. Germaine
VANEK, VICKERS & MASINI, P.C.
David P. Germaine
111 South Wacker, Suite 4050
Chicago, IL 60606
Telephone: [phone]
Facsimile: [phone]

.

6
7
8
9
10
11
12

By:
Counsel for Plaintiffs Electrograph
Systems, Inc. and Electrograph
Technologies Corp.; MetroPCS Wireless,
Inc.; Office Depot, Inc.; Interbond
Corporation of America (BrandsMart);
P.C. Richard & Son Long Island
Corporation; MARTA Cooperative of
America, Inc.; ABC Appliance, Inc.;
Schultze Agency Services, LLC (Tweeter);
and CompuCom Systems, Inc.

13
14
15
16
17

Counsel for Plaintiffs Dell, Inc. and
Dell Products L.P.

18
19
20
21

/s/ Philip J. Iovenio
BOIES, SCHILLER & FLEXNER LLP
William A. Isaacson (admitted pro hac vice)
Boies, Schiller & Flexner LLP
5301 Wisconsin Avenue NW, Suite 800
Washington, DC 20015
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

.

BOIES, SCHILLER & FLEXNER LLP
Philip J. Iovieno (admitted pro hac vice)
10 North Pearl Street, 4th Floor
Albany, NY 12207
Telephone: [phone]
Facsimile: 518-434-0665
Email: [e-mail]

By: /s/ Debra Bernstein
Debra Bernstein
Michael Kenny
Rod Ganske
ALSTON + BIRD LLP
One Atlantic Center
1201 West Peachtree Street
Atlanta, GA 30309
Telephone: [phone]
Facsimile: [phone]

.

By: /s/ B. Parker Miller
Peter Kontio
Valarie C, Williams
B. Parker Miller
ALSTON + BIRD LLP
One Atlantic Center
1201 West Peachtree Street
Atlanta, GA 30309
Telephone: [phone]
Facsimile: [phone]

.

22
23
24

Counsel for Plaintiffs Nokia
Corporation and Nokia Inc.

25
26
27
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ATTO RNEY S AT LAW

DCACTIVE-18044203.1

RESPONSE TO MOTION
RE TRIAL STRUCTURE
CASE NO. M:07-CV-1827- SI

1
2

Counsel for Plaintiffs T Mobile

3
4
5
6
7

Counsel for Plaintiffs Eastman
Kodak Company

8
9
10
11
12
13
14

Counsel for Plaintiffs Best Buy Co.,
Inc.; Best Buy Purchasing LLC; Best
Buy Enterprise Services, Inc.; Best
Buy Stores, L.P.; Best Buy.com,
LLC; and Magnolia Hi-Fi, Inc.

15

By: /s/ David H. Orozco
David H. Orozco
SUSMAN GODFREY LLP
1901 Avenue of the Stars, Suite 950
Los Angeles, CA 90067-6029
Telephone: [phone]
Facsimile: [phone]

.

By: /s/ Karl David Belgum
Karl David Belgum
NIXON PEABODY LLP
One Embarcadero Center, Suite 1800
San Francisco, CA 94111
Telephone: [phone]
Facsimile: [phone]

.

By: /s/ Roman M. Silberfeld______________
Roman M. Silberfeld
David Martinez
ROBINS, KAPLAN, MILLER & CIRESI LLP
2049 Century Park East, Suite 3400
Los Angeles, CA 90067-3208
Telephone: [phone]
Facsimile: [phone]

16
17
18

Counsel for Plaintiffs Tracfone
Wireless, Inc.

19
20
21

By: /s/James B. Baldinger______________
James Blaker Baldinger, Esq,
CARLTON FIELDS
CityPlace Tower, Suite 1200
525 Okeechobee Boulevard
West Palm Beach, FL 33401
Telephone : [phone]
Facsimile:
[phone]

22
23
24
25
26

Counsel for Plaintiffs The AASI
Creditor Liquidating Trust, by and
through Kenneth A. Welt,
Liquidating Trustee; Tech Data
Corporation and Tech Data Product
Management, Inc.

27

By: /s/ Scott N. Wagner______________
ROBERT W. TURKEN
SCOTT N. WAGNER
BILZIN SUMBERG BAENA PRICE &
AXELROD LLP
1450 Brickell Ave., Suite 2300
Miami, Florida 33131-3456
Telephone: [phone]
Facsimile: 305-374-7593

28
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ATTO RNEY S AT LAW

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RESPONSE TO MOTION
RE TRIAL STRUCTURE
CASE NO. M:07-CV-1827- SI

1

STUART H. SINGER
BOIES, SCHILLER, & FLEXNER LLP
401 East Las Olas Boulevard, Suite 1200
Fort Lauderdale, Florida 33301
Telephone: [phone]
Facsimile: [phone]

2
3
4

Of Counsel:

5

WILLIAM A. ISAACSON
MELISSA WILLETT
BOIES, SCHILLER & FLEXNER
5301 Wisconsin Ave. NW, Suite 800
Washington, DC 20015
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

6
7
8
9
10

PHILIP J. IOVIENO
BOIES, SCHILLER & FLEXNER
10 North Pearl Street, 4th Floor
Albany, NY 12207
Telephone: [phone]
Facsimile: [phone]

11
12
13
14
15
16

Counsel for Plaintiffs Alfred H.
Siegel, as Trustee of the Circuit City
Stores, Inc. Liquidating Trust

17

Parker C. Folse III
SUSMAN GODFREY LLP
1201 Third Avenue, Suite 3800
Seattle, WA 98101-3000
Telephone: [phone]
Facsimile: [phone]

18
19
20
21

Counsel for Plaintiffs SB Liquidation
Trust

22
23

By: /s/ Steven G. Sklaver
Steven G. Sklaver
SUSMAN GODFREY LLP
1901 Avenue of the Stars, Suite 950
Los Angeles, CA 90067-6029
Telephone: [phone]
Facsimile: [phone]

24
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Attestation: The filer of this document attests that the concurrence of the signatories
thereto has been obtained.

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C ROWELL
& M ORING LLP

-19-

ATTO RNEY S AT LAW

DCACTIVE-18044203.1

RESPONSE TO MOTION
RE TRIAL STRUCTURE
CASE NO. M:07-CV-1827- SI