In Re: Class 8 Transmission Indirect Purchaser Antitrust Litigation
MEMORANDUM OPINION. Signed by Judge Sue L. Robinson on 10/21/2015. (nmfn)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
IN RE CLASS 8 TRANSMISSION
INDIRECT PURCHASER ANTITRUST )
Civ. No. 11-00009-SLR
Ian Connor Bifferato, Esquire and Thomas Francis Driscoll, Ill, Esquire of Bifferato LLC,
Wilmington, Delaware. Counsel for Plaintiffs. Of Counsel: Lee Albert, Esquire and
Gregory B. Linkh, Esquire of Glancy Binkow & Goldberg LLP, Joseph R. Gunderson,
Esquire, Barbara C. Frankland, Esquire, Rex A. Sharp, Esquire and David E. Sharp,
Esquire of Gunderson, Sharp LLP, Jason S. Hartley, Esquire and Jason M. Lindner,
Esquire of Stueve, Siegel and Hanson LLP, Brian Penny, Esquire and Douglas Bench
Jr., Esquire of Goldman Scarlato & Penny LLP.
Donald E. Reid, Esquire of Morris Nichols, Arsht & Tunnell, Wilmington, Delaware.
Counsel for Defendant Eaton Corporation. Of Counsel: Joseph A. Ostoyich, Esquire,
Erik T. Koons, Esquire, Julie B. Rubenstein, Esquire and William C. Lavery, Esquire of
Baker Botts, LLP.
Richard L. Horwitz, Esquire and John A. Sensing, Esquire of Potter, Anderson &
Corroon, LLP, Wilmington, Delaware. Counsel for Defendants Daimler Trucks North
America LLC (f/k/a Freightliner LLC). Of Counsel: J. Robert Robertson, Esquire,
Benjamin F. Holt, Esquire, Justin W. Bernick, Esquire, and Meghan C. E. F. Rissmiller,
Esquire of Hogan Lovells US LLP and Corey W. Roush, Esquire of Akin Gump Strauss
Hauer & Feld LLP.
Kelly E. Farnan, Esquire and Lisa A. Schmidt, Esquire of Richards, Layton & Finger,
PA, Wilmington, Delaware and Jeffrey B. Bove, Esquire of Novak Druce Connolly Bove
Quigg LLP, Wilmington, Delaware. Counsel for Defendant Navistar International
Corporation (f/k/a International Truck and Engine Corporation). Of Counsel: Daniel E.
Laytin, Esquire, James H. Mutchnik, Esquire, and Brian Borchard, Esquire of Kirkland &
Jeffrey B. Bove, Esquire of Novak Druce Connolly Bove Quigg LLP, Wilmington,
Delaware. Counsel for Defendants Kenworth Truck Company, Paccar Inc., and
Peterbilt Motors Company. Of Counsel: Catherine S. Simonsen, Esquire, Cori G.
Moore, Esquire, Eric J. Weiss, Esquire, and Thomas L. Soeder, Esquire of Perkins Coie
M. Duncan Grant, Esquire and James Harry Stone Levine, Esquire of Pepper Hamilton
LLP, Wilmington, Delaware. Counsel for Defendants Mack Trucks Inc. and Volvo
Trucks North America. Of Counsel: Daniel J. Boland, Esquire, Jeremy Heep, Esquire
and Michael Hartman, Esquire of Pepper Hamilton LLP.
Dated: October J-1 , 2015
Presently before the court is indirect purchaser plaintiffs' 1 ("plaintiffs") motion for
class certification pursuant to Fed. R. Civ. P. 23(a), 23(b)(2) and 23(b)(3). (D.I. 184)
Also before the court is plaintiffs' motion to substitute various parties as class
representatives. (D. I. 180) Defendants to this action include Eaton Corporation
("Eaton"), Daimler Trucks North America LLC ("Daimler Trucks"), Freightliner LLC
"Frightliner''), Navistar International Corporation ("Navistar''), International Truck and
Engine Corporation ("International"), Paccar, Inc. ("Paccar''), Kenworth Truck Company
("Kenworth"), Peterbilt Motors Company ("Peterbilt"), Volvo Trucks North America
("Volvo"), and Mack Trucks, Inc. ("Mack") (collectively, "defendants").
Plaintiffs assert that defendants engaged in anticompetitive conduct. (D.I. 34 at
Specifically, defendants allege Eaton entered into exclusive dealing
agreements with the Original Equipment Manufacturers ("OEMs") (Daimler Trucks,
Freightliner, Navistar, International, PAACAR, Kenworth, Peterbilt, Volvo and Mack) of
Class 8 trucks to maintain or enhance their monopoly power in the market for
The indirect purchaser plaintiffs or the "proposed IPP class" include Ryan Avenarius
(representing the Iowa State Class); Big Gain Inc. (representing the Minnesota State
Class); Carleton Transport Service (representing the Nebraska State Class); James
Cordes on behalf of Cordes Inc. (representing the Michigan State Class); Meunier
Enterprises LLC, individually and as parent company of Auto Transport Leasing, Inc.
and Exotic Car Transport, Inc. (representing the Florida and North Carolina State
Classes); Paul Prosper on behalf of Prosper Trucking Inc. (representing the Vermont
State Class); Rodney E. Jaeger (representing the Wisconsin State Class); and Purdy
Brothers Trucking Co.(representing the Tennessee State Class).
transmissions used the Class 8 trucks. (Id.) Both direct2 and indirect purchaser
plaintiffs allege that such anticompetitive conduct resulted in the elimination of Eaton's
biggest competitor ZF Meritor. (Id.) The court has jurisdiction pursuant to 15 U.S.C. §
15 and 28 U.S.C. §§ 1331 and 1337.
A. The Parties
Plaintiffs purchased Class 8 trucks from one or more of defendants' authorized
sales agents or dealers and, therefore, are indirect purchasers of Class 8 transmissions.
(D.I. 34 at mf 9-12) Plaintiffs assert violations of 20 state antitrust laws and 2 state
unfair competition laws in a total of 21 different states.
Defendants are involved in the manufacture and sale of Class 8 trucks. Eaton
manufactures transmissions for Class 8 trucks. (Id. at 1l 13) The OEM defendants
manufacture and sell Class 8 trucks. (Id. at mf 14-21) In order to assemble and sell
Class 8 trucks, OEMs purchase component parts, such as transmissions, from
suppliers, such as Eaton. (Id. at 1l 27)
B. Class 8 Trucks and Transmissions
There are eight recognized classes of vehicles, with Class 8 trucks being the
heaviest. (Id. at 1l 25) Examples of Class 8 heavy duty trucks include fire trucks,
garbage trucks, and long-distance freighters. (Id. at 1l 26) The purchase of Class 8
trucks is unique in the sense that buyers can essentially build a truck to their desired
Direct purchaser plaintiffs have since been dismissed for lack of standing. (Civ. No.
10-260, D.I. 393 at 6, D.I. 394). The issue of standing as related to the indirect
purchaser plaintiffs as a whole has not been reasserted since the court denied
defendants' motion to dismiss with respect to plaintiffs' state antitrust claims. (D.I. 60)
specifications. (Id. at ~ 27) When purchasing a Class 8 truck, buyers can consult OEM
"databooks,'' which list an OEM's standard and non-standard component offerings, 3 and
designate the specific components they desire in their trucks. (Id.) Since
manufacturers of component parts in the Class 8 truck industry market products directly
to potential customers, it is not uncommon for buyers to select non-standard options
from a databook. (Id.)
C. Plaintiffs' Allegations
Plaintiffs contend that Eaton has been the dominant and most widely recognized
American manufacturer of Class 8 transmissions, holding a near monopoly in the
market since the 1950s. (Id.
28, 42-45) In the 1990s, ZF Meritor established itself
as a viable competitor to Eaton, producing desirable, competitive and innovative
28-29, 51-61) In response to this competition from ZF Meritor
and a significant downturn in the Class 8 truck market which occurred in late 1999-early
2000, plaintiffs allege that Eaton and the OEMs conspired to put ZF Meritor out of
business, thereby expanding Eaton's monopoly and permitting all defendants to share
in the profits resulting from this monopoly. (Id.
This conspiracy was allegedly achieved by Eaton entering into Long Term
Agreements ("LTAs") in the early 2000s with each of the four OEMs. 4 (Id. at W 62-68).
While each Eaton-OEM LT A was separately negotiated and thus distinct, the LTAs
A databook is a term of art used in the trucking industry. It represents the truck broken
down to its core components and provides customers with standard and nonstandard
component options. (D.I. 25 at W 4, 41) A transmission is an example of a component
part that exists in a databook. (Id.)
A series of mergers in the mid-1990's reduced to four the number of OEMs purchasing
Class 8 transmissions. (D.I. 25 at~ 51)
shared a similar purpose and features. (Id. at ml 74-112) Each LTA contained a
provision whereby the OEMs would receive sizable and lucrative rebates from Eaton
assuming the OEMs utilized a certain percentage of Eaton transmissions annually. (Id.)
For example, under the Freightliner-Eaton LTA, Freightliner was required to purchase
92% of its Class 8 transmission needs from Eaton in order to receive the specified
rebates. (Id. at ~ 77) Aside from tying percentage requirements to rebates, the LTAs
included other provisions designed to minimize ZF Meritor's market share. Examples of
these provisions included eliminating ZF Meritor transmissions from databooks or
removing them from the standard position, refusing to provide warranties on trucks with
ZF Meritor transmissions, overcharging for ZF Meritor transmissions, and refusing to
provide financing on vehicles with ZF Meritor transmissions. (Id.
essence, plaintiffs argue that the LTAs were defacto exclusive dealing contracts and the
OEMs all agreed with each other to enter into these agreements in order to eliminate ZF
Meritor and share in the profits of Eaton's monopoly. (Id.
62; 66) In the end,
plaintiffs allege that defendants' conspiracy was successful as the LTAs greatly
diminished ZF Meritor's market share in the Class 8 transmission field and left it no
opportunity for growth. (Id. at ml 115-117) In the face of these economic realities, ZF
Meritor's market share declined to an insignificant level. (Id.) Plaintiffs ultimately
contend that they had to pay higher prices for transmissions and, in turn, for Class 8
trucks, as a result of defendants' actions; they also assert that "they had less choice and
suffered from a decrease in innovation." (Id.
A district court has broad discretion to grant or deny class certification. See
Eisenberg v. Gagnon, 766 F.2d 770, 785 (3d Cir. 1985). The court does not inquire into
the merits of a lawsuit when determining whether it may be maintained as a class
action. See Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 177 (1974). However, the
court must conduct a limited preliminary inquiry, examining beyond the pleadings, to
determine whether common evidence could suffice to make out a prima facie case for
the class. See General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 160 (1982)
("[T]he class determination generally involves considerations that are enmeshed in the
factual and legal issues comprising the plaintiff's cause of action.") (internal citation
omitted); Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F .3d 154, 167 (3d
Cir. 2001) ("[C]ourts may delve beyond the pleadings to determine whether the
requirements for class certification are satisfied.").
The party seeking class certification bears the burden of establishing that
certification is warranted under the circumstances. Carrera v. Bayer Corp., 727 F.3d
300, 306 (3d Cir. 2013). Rule 23 of the Federal Rules of Civil Procedure sets forth the
requirements for certification of a class. Under Rule 23(a), these requirements are: (1)
the class is so numerous that joinder of all members is impracticable ("numerosity"); (2)
there are questions of law or fact common to the class ("commonality"); (3) the claims or
defenses of the representative parties are typical of the claims or defenses of the class
("typicality"); and (4) the representative parties will fairly and adequately protect the
interests of the class. See In re Warfarin Sodium Antitrust Litig., 391 F.3d 516, 527 (3d
Cir. 2004). Plaintiffs bear the burden to "establish that all four requisites of Rule 23(a)
and at least one part of Rule 23(b) are met." Baby Neal v. Casey, 43 F.3d 48, 55 (3d
Under Rule 23(b)(3}, two additional requirements must be met for a class to be
certified: (a) common questions must predominate over any questions affecting only
individual members; and (b) class resolution must be superior to other available
methods for the fair and efficient adjudication of the controversy. Amchem Prods., Inc.
v. Windsor, 521 U.S. 591, 613 (1997). Relevant to this inquiry are the following factors:
(a) the interest of members of the class individually controlling the prosecution or
defense of separate actions; (b) the extent and nature of any litigation concerning the
controversy already commenced by or against members of the class; (c) the desirability
or undesirability of concentrating litigation of the claims in the particular forum; (d) the
difficulties likely to be encountered in the management of the class action. Id. at 61516. The Supreme Court has noted that the dominant purpose behind certifying Rule
23(b)(3) cases is to vindicate the rights of people who individually would be without the
strength to bring their opponents into court; it overcomes the problem of small
recoveries, which do not provide enough incentive for individual actions to be
prosecuted. Id. at 617.
The proposed IPP state classes are as follows:
All persons or entities, in the state of [California, Florida, Kansas, Iowa,
Michigan, Minnesota, Nebraska, North Carolina, Tennessee, Vermont,
Wisconsin], that indirectly purchased from Defendants new Class 8 Heavy
Duty trucks containing Eaton transmissions, beginning October 1 , 2002 and
continuing until the present ("Class Period"). Excluded from this class are:
(i) Defendants and their parent companies, subsidiaries, affiliates, officers,
directors, employees, legal representatives, heirs, assigns, and coconspirators; and (ii) any judges presiding over this action and the members
of his/her immediate family and judicial staff, and any juror assigned to this
(D.I. 184 at 1-3) Plaintiffs assert the following claims: 1) violation of 20 state antitrust
laws (for the following states: Arizona, California, District of Columbia, Iowa, Kansas,
Maine, Michigan, Minnesota, Nebraska, Nevada, New Hampshire, New Mexico, New
York, North Carolina, North Dakota, South Dakota, Tennessee, Vermont, West Virginia
and Wisconsin); and 2) violation of two state unfair competition laws (for the following
states: Florida and New Hampshire). (D.I. 68 at mJ 168-277) Plaintiffs move for
certification pursuant to Fed. R. Civ. P. 23(a) and (b)(3). (D.I. 184)
To be certified, the class must be "so numerous that joinder of all members is
impracticable." Fed. R. Civ. P. 23(a)(1 ). "No minimum number of plaintiffs is required to
maintain a suit as a class action, but generally if the named plaintiff demonstrates that
the potential number of plaintiffs exceeds 40, the first prong of Rule 23(a) has been
met." Stewart v. Abraham, 275 F.3d 220, 227-28 (3d Cir. 2001 ). Plaintiffs argue that
the number of relevant Class 8 truck sales during the proposed class period numbers in
the thousands to tens of thousands and joinder, therefore, is impracticable. (D.I. 185 at
15). Dr. Russell Lamb ("Dr. Lamb"), plaintiffs' proffered expert, provided a range of
relevant Class 8 truck sales per state between 1,572 and 41,307. (D.I. 187
Defendants do not dispute that the numerosity requirement is satisfied. The court notes
that once all potential class members are identified, the class will be so numerous as to
make joinder impracticable. Accordingly, the proposed IPP class satisfies the
Commonality requires that class members share a single common issue of law or
fact. See Baby Neal, 43 F.3d at 56. The proposed IPP class alleges a common course
of conduct which, it contends, had a general effect on the market in that defendants'
conduct artificially raised the price of Class 8 transmissions and decreased innovation.
Specifically, plaintiffs assert that at least eight questions of law or fact are common to
the proposed IPP class: (1) whether defendants engaged in a contract, combination, or
conspiracy to restrain trade in, exclude competition in, or monopolize the relevant
market for Class 8 truck transmissions; (2) whether defendants conspired to
unreasonably restrain trade and maintain prices for Class 8 truck transmissions sold in
the United States, and the indirect purchaser state submarkets, at supra-competitive
levels by foreclosing the market for Class 8 truck transmissions in the United States and
in the states at issue; (3) the existence and duration of the illegal conduct alleged
herein; (4) whether defendants concealed their unlawful activities; (5) whether
defendants' anticompetitive conduct resulted in diminished competition for Class 8 truck
transmissions in the United States and in the states at issue; (6) whether defendants'
anticompetitive conduct caused prices for Class 8 truck transmissions to be higher than
they would have been in the absence of defendants' conduct; (7) whether members of
the proposed IPP class were injured by defendants' conduct and, if so, the appropriate
classwide measure of damages; and (8) whether defendants' conduct violated the
antitrust and unfair competition laws of the indirect purchaser states. (D.I. 185 at 17-18)
Defendants do not dispute that the commonality prong is satisfied. The proposed IPP
class has demonstrated the commonality requirement because these questions
generally focus on defendants' conduct and, as such, are common to all members of
the class. See In re Warfarin, 391 F.3d at 529 (stating that allegations for a violation of
§ 2 of the Sherman Act "naturally raise several questions of law and fact common to the
entire class"); In re Linerboard Antitrust Litigation, 305 F.3d 145, 151-52 (3d Cir. 2002)
(finding that, when the inquiry focuses on defendants' actions, a conspiracy claim
pursuant to § 1 of the Sherman Act involves common issues of fact and law).
Typicality requires that "the claims ... of the representative parties are typical of
the claims ... of the class," not that the claims are identical. See Fed. R. Civ. P.
23(a)(3); see also In re Warfarin, 391 F.3d at 531-32. "The typicality inquiry centers on
whether the interests of the named plaintiffs align with the interests of the absent
members." Stewart, 275 F.3d at 227-28. More specifically, "[f]actual differences will not
render a claim atypical if the claim arises from the same event or practice or course of
conduct that gives rise to the claims of the [absent] class members, and if it is based on
the same legal theory." Id. (alteration in original) (citing Hoxworth v. Blinder, Robinson
& Co., Inc., 980 F.2d 912, 923 (3d Cir. 1992)). The proposed IPP class contends that
typicality is satisfied because "claims of the representatives of the proposed [s]tate
[c]lasses are based on the same conduct by [d]efendants and substantially similar legal
theories." (D.I. 185 at 23-24) Generally, plaintiffs argue the same legal theory applies
across the state classes because all proposed IPP class members allege defendants
conspired or contracted to reduce competition in the Class 8 transmission market.
Defendants submit that typicality is not met because plaintiffs are not large fleet or
leasing company purchasers. (D.I. 233 at 28) Rather, defendants assert that as
indirect purchasers, plaintiffs purchased trucks through intermediary dealers and did not
negotiate with OEMs and component suppliers or enter into any long-term purchase
contracts. (Id. at 28-29) Defendants additionally assert that absent subclass members
"negotiate[d] deals in a different competitive landscape than individual customers." (Id.
at 29 (citing In re Intel Corp. Microprocessor Antitrust Litig., Civ. No. 05-485-LPS, 2014
WL 6601941, at *12 (D. Del. Aug. 6, 2014)) The court disagrees with defendants'
assertions as related to the typicality requirement. Regardless of plaintiffs' status as
indirect purchasers, typicality is met because recovery necessitates proof of defendants'
collusive conduct resulting in artificially high prices for Class 8 transmissions. As
discussed above, plaintiffs' claims arise out of the same course of alleged conduct that,
if true, would have similarly injured each of them by artificially raising the price of Class
8 transmissions. Thus, any claims from absent class members will also arise out of the
same course of conduct and alleged overpayment. See Jn re Warfarin, 391 F.3d at 53132. Typicality, therefore, is satisfied.
Rule 23(a) also requires that the representative class members "fairly and
adequately protect the interests of the class." See Fed. R. Civ. P. 23(a)(4). This inquiry
"has two components designed to ensure that absentees' interests are fully pursued."
See In re Warfarin, 391 F.3d at 532 (citing Georgine v. Amchem Prods., Inc., 83 F.3d
610, 630 (3d Cir. 1996), aff'd, Amchem, 521 U.S. at 591. "First, the adequacy inquiry
'tests the qualifications of the counsel to represent the class.' " Id. (quoting Jn re
Prudential Ins. Co. America Sales Practice Litig. Agent Actions, 148 F.3d 283, 313 (3d
Cir. 1998)). "Second, it seeks 'to uncover conflicts of interest between named parties
and the class they seek to represent."' Id. (quoting Prudential, 148 F.3d at 313).
1. Qualifications of counsel
Counsel for the proposed IPP class have submitted firm resumes demonstrating
that counsel possess the competence, skill, and experience necessary to prosecute the
class' claims. (D.I. 186, exs. 46-47); See Jerry Enterprises of Gloucester County, Inc. v.
Allied Beverage Group, L.L.C., 178 F.R.D. 437, 446 (D.N.J. 1998). The resumes
demonstrate that counsel have participated in several class action antitrust suits,
including representing indirect purchasers alleging overcharges as a result of pricefixing and market allocation conspiracy. (See id.) Plaintiffs have sufficiently
demonstrated this requirement.
2. Absence of conflict
The proffered representatives are indirect purchasers of Class 8 truck
transmissions from one or more of defendants' authorized sales agents/dealers. (D.I.
68 at 1f1f 9-18) Plaintiffs argue that the members of the proposed IPP class do not have
any interests antagonistic to those of the other class members, as all share a strong
interest in proving defendants' liability. (D.I. 185 at 25-26) That is, each class
representative has the same interest as each class member in proving their claims.
Additionally, plaintiffs assert that each class member has been adversely impacted by
defendants' conspiracy because their ability to purchase Class 8 transmissions has
been restricted by defendants' conduct. As a result of that conduct, plaintiffs assert they
have paid artificially inflated prices for Class 8 transmissions. (Id. at 26) Defendants
challenge the adequacy of the proffered representatives, arguing that fundamental intraclass conflicts exist and that plaintiffs lack understanding of their claims and duties as
class representatives. (D. I. 233 at 30-32)
At the outset, the court notes plaintiffs' request to withdraw and substitute two
new parties as class representatives filed on the same day as the instant motion for
class certification. 5 (D.I. 180) Apparently, California class representative Premier
Produce Co., Inc. "is no longer able to participate in this action," and Kansas class
representative Joseph Williams is no longer a class member as the proposed class is
now defined. (Id.) This lawsuit was initially filed on October 4, 2010. (D.I. 1) It is,
therefore, four years into the course of this litigation that plaintiffs request to remove
class representatives and substitute new parties. 6 On the very same day plaintiffs
requested removal and substitution of several class representatives, plaintiffs also
asserted that their proffered representatives would adequately represent the class. The
parties additionally dispute whether the representatives of the Michigan and Vermont
subclasses have standing. (D.I. 233 at 34-36; D.I. 239 at 19) Given the potential
upheaval in class representation at this stage of the litigation, the court is unable to find
that the proffered class representatives or their proposed substitutions can "fairly and
adequately protect the interests of the class." See Fed. R. Civ. P. 23(a)(4). Plaintiffs
have had over four years to proffer adequate class representatives that can represent
The court additionally notes that plaintiffs' request was filed more than ten months
after the court's deadline of January 1, 2014 to add or amend parties. This deadline
was set in the original scheduling order filed on February 7, 2013 in the related case,
Wallach v. Eaton, Corp., Civ. No. 10-260, D.I. 99at1f 3, and here on March 12, 2013.
Over the course of this four-year-old litigation, the parties briefed a motion to dismiss,
completed extensive fact discovery, and the parties' class certification economists
drafted expert reports and were subsequently deposed. At the time this motion was
filed, defendants had "already taken nine depositions, with at least five more scheduled,
and produced over 24,000 documents." (D.I. 204 at 4)
the interests of both present and absent class members without conflict.7 Based on the
foregoing, the court concludes that, while counsel is adequately qualified to represent
the class, plaintiffs have not demonstrated that the adequacy requirement is satisfied
with respect to class representatives.
The court recognizes that the predominance requirement has been characterized
as "readily met" in cases alleging violations of the antitrust laws. 8 Amchem, 521 U.S. at
625. However, the Supreme Court has acknowledged in this regard that questions of
individual damages can "overwhelm questions common to the class." Comcast Corp. v.
Behrend, - U.S. -, 133 S. Ct. 1426, 1433 (2013). Additionally, the Supreme Court has
noted that Rule 23(b )(3) is an '"adventuresome innovation' of the 1966 amendments,
Moreover, there appears to be fundamental conflict defeating certification as the class
includes parties who claim to have been harmed by the same conduct that benefitted
other members of the class. (0.1. 233 at 31-32); In re Intel, 2014 WL 6601941, at *12
(citing In re Photochromic Lens Antitrust Litig., Civ. No. 8:10-CV-00984-T-27EA, 2014
WL 1338605 at *10 (M.O. Fla. April 3, 2014)). First, the truck resellers within the class
have an interest in proving that they passed-through zero overcharge in order to recover
100% of the damages attributed to each resale, while the downstream purchasers have
an opposite interest. Second, the rebates, as discussed in the pass-through analysis
below, were not applied uniformly to the class. Instead, it appears that large fleet and
leasing companies may have "received a disproportionate share of rebates such that
they offset the alleged overcharge." As result, these class members were not injured by
the alleged anti-competitive conduct. (Civ. No. 10-260, 0.1. 299, ex. 1 at~ 93)
The Third Circuit has also recognized that monopolization and conspiracy claims
involve predominantly common issues. See In re Warfarin, 391 F.3d at 528 (stating that
allegations for violations of § 2 of the Sherman Act "naturally raise several questions of
law and fact common to the entire class and which predominate over any issues related
to individual class members, including the unlawfulness of [Eaton's] conduct under
federal antitrust laws as well as state law, the causal linkage between [Eaton's] conduct
and the injury suffered by the class members, and the nature of the relief to which class
members are entitled."; In re Linerboard, 305 F.3d at 152 (finding violation of Sherman
Act's § 1 conspiracy claim would predominantly involve common issues of fact and law,
where the inquiry focused on defendants' actions, not individual class members).
framed for situations 'in which class-action treatment is not as clearly called for.'" WalMart Stores, Inc. v. Dukes, - U.S.-, 131 S. Ct. 2541, 2558 (2011) (quoting Amchem,
521 U.S. at 625 (citing advisory committee's notes, 28 U.S.C. app., at 697 (1994 ed.))).
Rule 23(b)(3)'s predominance element requires that common issues predominate
over issues affecting only individuals, and tests whether proposed classes are
sufficiently cohesive to warrant adjudication by representation. See Amchem, 521 U.S.
at 623; In re Warfarin, 391 F.3d at 527. Significantly, the predominance requirement "is
far more demanding" than the commonality requirement of Rule 23(a), which it
incorporates. In re Warfarin, 391 F.3d at 527. Although common issues must
predominate over individual inquiries, the existence of an individual inquiry does not
preclude class certification, especially where all members face the necessity of proving
the same fraudulent scheme. See In re Community Bank of Northern Virginia, 418 F.3d
277, 306 (3d Cir. 2005) (discussing Amchem, 521 U.S. at 625). Similarly, individualized
damages calculations do not defeat a Rule 23(b)(3) certification if the predominance
requirement is otherwise met. Id. at 305-06; Chiang v. Veneman, 385 F.3d 256, 273
(3d Cir. 2004 ).
"The essential inquiry for predominance is whether the proposed class is
'sufficiently cohesive to warrant adjudication by representation."' In re Intel, 2014 WL
6601941, at *13 (citing Amgen Inc. v. Connecticut Ref. Plans & Trust Funds, - U.S.
-, 133 S. Ct. 1184, 1196 (2013)). The Third Circuit has further instructed that "[c]lass
certification is proper only 'if the trial court is satisfied, after a rigorous analysis, that the
prerequisites' of Rule 23 are met." In re Hydrogen Peroxide Antitrust Litigation, 552
F.3d 305, 309 (3d Cir. 2008) (quoting Gen. Tel. Co. of the S.W. v. Falcon, 457 U.S. 147,
161 (1982)). Additionally, "actual, not presumed, conformance with Rule 23
requirements is essential." Marcus v. BMW of North America, LLC, 687 F.3d 583, 591
(3d Cir. 2012). "Expert opinion with respect to class certification, like any matter
relevant to a Rule 23 requirement" compels rigorous analysis. Hydrogen Peroxide, 552
F.3d at 323. "Weighing conflicting expert testimony at the certification stage is not only
permissible; it may be integral to the rigorous analysis Rule 23 demands." Id.
Generally, plaintiffs contend that the common issues regarding the proposed IPP
class' allegations of a conspiracy predominate over the possibility of individualized
damages. (D.I. 233 at 28) Specifically, plaintiffs' assertion of common issues that
predominate this action include: (1) whether defendants engaged in a conspiracy to fix,
raise, stabilize, and maintain the prices of Class 8 transmissions; (2) whether
defendants monopolized or engaged in a conspiracy to monopolize trade and
commerce in the market for Class 8 transmissions sold to consumers in the United
States; and (3) whether defendants' conduct caused the prices of Class 8 transmissions
to be maintained at higher levels than would exist in a competitive market. (D.I. 185 at
28) Defendants argue that plaintiffs have failed to meet their burden; specifically, that
plaintiffs are unable to show through common proof that direct purchasers paid an
overcharge. Defendants also contend that proof of pass-through requires an
individualized, transaction-by-transaction, reseller-by-reseller analysis, and that litigation
as a class action is unmanageable due to state law variances. (D. I. 233 at 14, 25)
The Third Circuit has pointed out that in antitrust cases, the element of "impact
often is critically important for the purpose of evaluation of Rule 23(b )(3)'s
predominance requirement because it is an element of the claim that may call for
individual, as opposed to common proof." In re Intel, 2014 WL 6601941, at *13 (citing
Hydrogen Peroxide, 552 F.3d at 311 ). While plaintiffs need not prove common impact
at the class certification stage, they must at least
demonstrate that the element of antitrust impact is capable of proof at trial
through evidence that is common to the class rather than individual to its
members. Deciding this issue calls for the district court's rigorous
assessment of the available evidence and the method or methods by
which plaintiffs propose to use the evidence to prove impact at trial.
At this stage, the court does not question plaintiffs' proposition that defendants'
anticompetitive conduct "could, in theory, impact the entire class despite a [resultant]
decrease in prices for some customers in parts of the class period, and despite some
divergence in the prices different plaintiffs paid." Hydrogen Peroxide, 552 F.3d at 325.
However, "the question at [the] class certification stage is whether, if such impact is
plausible in theory, it is also susceptible to proof at trial through available evidence
common to the class." Id. The threshold issue of predominance, then, is whether
plaintiffs have established common proof to show that all or nearly all class members
suffered antitrust injury, and that any benefits received by certain purchasers as a result
of defendants' anticompetitive payments are exceeded by the overcharges imposed that
were subsequently passed on to end purchasers. Id. Based on the record before it and
as discussed below, plaintiffs have failed to meet this common evidence burden.
1. Overcharge analysis
Both parties agree that class certification requires plaintiffs to demonstrate the
ability to show through common proof that (1) Eaton assessed an overcharge on all of
its transmission sales to all of the OEMs; (2) each of the OEMs passed on the alleged
overcharge to substantially all of its direct purchasers; and (3) each of the many
hundreds of direct purchasers passed on part of that alleged overcharge to substantially
all of the thousands of indirect purchasers. (D.I. 233 at 14) Generally, plaintiffs rely on
Dr. Lamb's expert report and testimony in support of the overcharge propositions as
related to the direct purchasers. Defendants ask the court to deny class certification
because "both direct plaintiffs and Dr. Lamb can show neither antitrust impact nor
damages with proof common to the putative class of 'direct' purchasers." (Id.)
As noted above, class certification requires plaintiffs to establish that reliable,
common evidence can be used to prove that all or nearly all of the proposed class
members paid a higher price than they would have absent the alleged conspiracy.
Hydrogen Peroxide, 552 F.3d at 311. While plaintiffs need not prove antitrust impact at
the class certification stage, plaintiffs must show that "impact is capable of proof at trial
through evidence that is common to the class rather than individual to its members." Id.
Here, however, plaintiffs' status as indirect purchasers must be taken into
account. Eaton did not sell any transmissions directly to any of the plaintiffs. Rather,
Eaton sold the transmissions to OEMs who then included the transmissions in Class 8
trucks purchased from defendants' authorized sales agents or dealers. Similar to In re
Intel, this case is distinguishable from price-fixing class actions involving alleged
overcharges to direct purchasers. In re Intel, 2014 WL 6601941, at *14. Plaintiffs at bar
must show that they can prove, through common evidence, that Eaton not only
overcharged its OEM customers, but that overcharges were then passed from the
OEMs to direct purchasers and eventually to plaintiffs as indirect purchasers. An
additional distinction between the instant case and a majority of price-fixing cases is that
the "challenged 'conduct is a price reduction" that benefitted members of the class. In
re Intel, 2014 WL 6601941, at *14 (emphasis in original) (citing In re Photochromic
Lens, 2014 WL 1338605 at *11) ("[A] class cannot be certified when some members of
the class benefitted from the alleged wrongful conduct.").
Notably, the Supreme Court in Illinois Brick Co. v. Illinois, 431 U.S. 720, 735
(1977), "established the general rule that only direct purchasers from antitrust violators
may recover damages in antitrust suits." Howard Hess Dental Labs. Inc. v. Dentsply
Int'/, Inc., 424 F.3d 363, 369 (3d Cir. 2005). Indirect purchasers are generally not
entitled to recover damages for passed-on overcharges. Id. (emphasis added) This is
referred to as the "indirect purchaser rule." Three policy reasons justified the Supreme
Court's decision to impose this rule:
(1) a risk of duplicative liability for defendants and potentially inconsistent
adjudications could arise if courts permitted both direct and indirect
purchasers to sue defendants for the same overcharge; (2) the evidentiary
complexities and uncertainties involved in ascertaining the portion of the
overcharge that the direct purchasers had passed on to the various levels
of indirect purchasers would place too great a burden on the courts; and
(3) permitting direct and indirect purchasers to sue only for the amount of
the overcharge they themselves absorbed and did not pass on would
cause inefficient enforcement of the antitrust laws by diluting the ultimate
recovery and thus decreasing the direct purchasers' incentive to sue.
Id. at 369-70 (citing Illinois Brick, 431 U.S. at 730-35). The threshold issue necessary to
predominance, therefore, turns on whether plaintiffs have proffered sufficient common
evidence to prove that Eaton overcharged its direct purchasers.
a. Dr. Lamb's analysis
Dr. Lamb calculated a damages model "using a 'benchmark' model, whereby he
determine[d] prices that would have prevailed in a world free of alleged misconduct,
called 'but for' prices." (D.I. 185 at 30) According to this report, "Dr. Lamb calculated
that 94.2% of the overcharges were passed from direct purchasers to indirect
purchasers." (Id. at 31) Dr. Lamb arrived at this conclusion following three separate
regressions and a "yardstick approach" to account for the lack of benchmarks in the
performance transmission market. (Id.; Civ. No. 10-260, D. I. 397 at 71) Specifically, Dr.
Lamb calculated the alleged overcharge on Eaton Class 8 linehaul transmissions to the
OEMs (direct purchasers). 9 From this regression, he concluded that during the class
period, "prices for Eaton Class 8 Linehaul transmissions were not fully explained by
market forces ... Thus, common evidence is available to show that the alleged
misconduct inflated Eaton Class 8 transmissionD prices above the level that would have
prevailed absent the alleged misconduct." (Civ. No. 10-260, D.I. 232, ex. 1 at~~ 17990) Dr. Lamb then performed a second regression to measure the damages to direct
purchasers, calculating that as a result of pass-through, the direct purchaser class
suffered $398.4 million in damages during the class period. (Id. at mf 192-212) A third
regression of that data was utilized to calculate the damages allegedly passed on from
the direct purchaser dealers to end user indirect class members whereby Dr. Lamb
calculated 94.2% of the overcharges were passed on, resulting in $91,391,262 in
damages to the class. (D.I. 187 at ml 40-51)
b. Direct purchaser analysis
The court notes this analysis relies entirely on Dr. Lamb's report in the related direct
purchaser case, Wallach v. Eaton, Corp., Civ. No. 10-260. (D.I. 185 at 31) Dr. Lamb
additionally applied the same overcharge percentage calculated from his Eaton linehaul
regression in order to calculate the damages on Class 8 performance transmissions.
(Civ. No. 10-260, D.I. 232, ex. 1 at~ 189) As will be discussed in the next section, this
regression assumes a single uniform overcharge to all OEMs across all transmissions.
(Id. at~~ 179-90)
As noted, plaintiffs are required to show there is common proof that Eaton
overcharged the individual class members who purchased Eaton transmissions
contained in Class 8 trucks during the Class Period. In support of this proposition,
plaintiffs rely entirely on Dr. Lamb's analysis, asserting that his model calculates the
overcharge to direct purchasers by analyzing "various data provided by the
Defendants." (D.I. 185 at 31) Defendants assert, and the court agrees, however, that
Dr. Lamb's model analyzes only a "small slice of data." (Civ. No. 10-260, D.I. 397 at
42:13-14) Dr. Lamb's report additionally assumes, rather than analyzes, several
important points. First, Dr. Lamb reached his conclusions by applying "the same
overcharge percentage calculated from [the] Eaton Linehaul regression to Eaton's sales
in order to calculate the damages on Class 8 Performance Transmissions." (Civ. No.
10-260, D.I. 232, ex. 1 at~ 189) In other words, Dr. Lamb ignored performance
transmissions, basing his conclusions solely on a portion of linehaul transmission
data. 10 Notably, defendants' expert, Dr. Johnson, concluded that performance
transmissions comprise "nearly half of Eaton's transmissions sold during the relevant
period." (Civ. No. 10-260, D.I. 299, ex. 1 at~ 20) By basing his analysis solely on
linehaul transmission data, Dr. Lamb has excluded half of the data he proffers as
common evidence that direct purchasers paid an overcharge. Moreover, Dr. Lamb's
model excludes data from Daimler and Freightliner, comprising "over 40 percent of the
line haul trucks in this case." (Id. at 42: 12-17) It appears, then, that Dr. Lamb's analysis
Dr. Lamb argues this is appropriate because, but for Eaton's anti-competitive
conduct, "ZF Meritor would have entered the Class 8 performance Transmission
market." (Civ. No. 10-260, D.I. 232, ex. 1 at~ 189) This is debatable. As defendants
assert, "performance truck purchasers must prove at trial that ZF Meritor would have
entered the performance market." (D.I. 233 at 24)
is based on less than 60 percent of half of the data. As Dr. Johnson explained, "Dr.
Lamb failed to include (a) more than 19,000 transmissions with prices above $7000, (b)
all performance transmissions, (c) 47.1 % of manual transmissions, (d) 40.5% of VolvoMack purchases, (e) 36.9% of Daimler purchases, (f) 33.0% of Navistar purchases, and
(g) 64.5% of PACCAR purchases." (D.I. 298 at 31; Civ. No. 10-260, D.I. 299, ex. 1 at~
22) When asked about the most persuasive component of his analysis, Dr. Lamb
testified that his analysis "is more credible because it's grounded in the facts of the
case." (Civ. No. 10-260, D.I. 397 at 42:13-14) In reality, Dr. Lamb's analysis utilizes
assumptions based on a modicum of data not fully representative of Eaton transmission
sales during the Class Period, in that he "used less than 55% of the relevant Eaton
transmission sales." (D.I. 298 at 31; Civ. No. 10-260, D.I. 299, ex. 1 at ex. 2) Dr.
Lamb's "compartmentalized view" of damages does not comprise common proof that
Eaton overcharged the direct purchasers. In re Intel, 2014 WL 6601941 at *17.
Plaintiffs have not met their burden in this regard. Because plaintiffs have failed to
demonstrate that there is common proof showing that direct purchasers paid an
overcharge, the indirect purchaser class cannot be certified. 11 Nevertheless, the court
will address the parties' arguments regarding pass-through.
2. Pass-through analysis
The court also acknowledges that indirect purchasers may not have standing as
direct purchaser plaintiffs have since been dismissed on this issue. (Civ. No. 10-260,
D.I. 393 at 6; D.I. 394). However, the court declines to analyze at this juncture whether
indirect purchasers have standing since the issue has not been reasserted since the
court denied defendants' motion to dismiss in the instant case. (D.I. 60)
Likewise, plaintiffs have failed to identify common evidence that any alleged
overcharges were passed on to the indirect purchasers. As discussed above, class
certification requires that plaintiffs show the alleged overcharges were passed on to end
purchasers in the form of higher prices to consumers. Defendants assert that the
complexity of truck pricing and the indirect purchaser distribution chain make it
impossible to identify, much less prove, class-wide injury through common proof. (D.l.
233 at 15) Defendants also assert plaintiffs' reliance on Dr. Lamb's pass-through
regression is similarly flawed to his overcharge analysis. (Id.)
a. Truck pricing and the transmission distribution chain
As discussed above, this litigation primarily concerns plaintiffs' allegation that
they had to pay higher prices for transmissions and, in turn, for Class 8 trucks as a
result of defendants' anti-competitive conduct. Transmissions, of course, comprise only
a part of a Class 8 truck transaction. While the Class 8 trucks here have identical
transmissions, each truck is unique and highly customized for use in different
applications, meaning manufacturing costs for each truck varies by tens of thousands of
dollars. (Id. at 6) Moreover, some companies do not simply sell Class 8 trucks, but
mount a "significant body," such as a concrete boom, cement mixer, tanker, or refuse
loader for a garbage truck. (Id. at 18) Those companies then sell a complete package,
truck and body together. Determining what portion of the alleged overcharge was
passed on to a transmission cannot be determined simply by the overall purchase price
of the truck. This is particularly true with respect to "significant bodies," as these
components have their own costs, at times more costly than the truck itself. (Id. at 7)
Additionally, as Dr. Johnson explained, "[t]here are multiple possible intermediaries
between the OEMs and indirect purchasers of Class 8 trucks, such as dealers, body
builders, and other resellers, which yields a number of possible distribution chains."
(0.1. 234, ex. 1 at~ 19) As defendants assert, the proposed IPP class includes leasing
companies as well as resellers, potentially resulting in transmissions that have been
sold and then resold with no methodology to account for this occurrence. (0.1. 233 at 6)
Overall, the complex distribution chain frustrates the process of determining the amount
of pass-through on a transmission based on the price of a truck, and "[t)here has been
no effort to correlate transmission ... cost to truck price." (Civ. No. 10-260, 0.1. 397 at
Plaintiffs' allegation of anti-competitive conduct involves Eaton's entry into LTAs
in the early 2000s with each of the OEMs. While these LTAs were separately
negotiated and distinct, each contained sizable and lucrative rebates from Eaton,
operating under the assumption that the OEM would utilize a certain percentage of
Eaton transmissions annually. These rebates, among other beneficial terms, also
present a significant problem for plaintiffs trying to prove, through common evidence,
that the alleged overcharges were passed on. 12 In fact, plaintiffs acknowledge that
"[t]ruck dealers and fleet purchasers ... sometimes receive special incentives called
'SPIFFs' ... , which effectively reduce the net price." (Civ. No. 10-260, 0.1. 232, ex. 1 at
159) (emphasis added) These rebates complicate the damages issue not only
because the rebates benefitted some members of the class through price reduction, but
also in terms of individualized transactions and the inability to account for them through
According to defendants, "[c]omponent manufacturers give extended warranties,
additional product support, and monetary rebates (SPIFFs) to certain customers,
typically large fleets, if the customers will spec their component." (0.1. 233 at 15)
common proof. 13 See In re Intel, 2014 WL 6601941, at *14; In re Photochromic Lens,
2014 WL 1338605 at *11) ("[A] class cannot be certified when some members of the
class benefitted from the alleged wrongful conduct.")).
As to reduction in Class 8 truck pricing in exchange for choosing an Eaton
transmission, defendants assert that not all reductions in truck pricing can be reflected
on an invoice. (0.1. 233 at 16) For example, a dealer may increase trade-in value, offer
preferred buy-back terms, or provide special financing. (Id.) More importantly,
defendants provided the following examples where the benefits received exceeded the
Cordes, Inc. (Michigan) received a special financing rate from PACCAR in
conjunction with one new Class 8 truck purchase. More specifically, Mr.
Cordes testified that another customer originally ordered the truck and no
longer wanted it, and "they gave me a cheap financing rate on it, because
they wanted to dump it. So I can borrow it cheaper than I can borrow
money at the bank."
Rodney Jaeger's (Wisconsin) sole new Class 8 truck purchase during the
Class Period involved a complicated trade-in transaction including both a
used Class 8 truck that he owned and a used Class 8 truck owned by a
third party. Mr. Jaeger also purchased the truck under a special sales
program that granted a $3,500 discount provided certain components
were selected, including an Eaton transmission.
Meunier Enterprises LLC (Florida and North Carolina) typically traded in
used trucks in conjunction with new truck purchases and shopped dealers
and brands based on who offered the best trade-in values.
Phillip Nix (Kansas) traded in a used truck in conjunction with all of his
truck purchases and aggressively negotiated the trade-in values he
received. In one case the trade-in value made up nearly 75% of the price
of the new truck.
These rebates also present a fundamental intra-class conflict that defeat the
adequacy requirement as discussed above.
Paul Prosper (Vermont) traded in a used truck in conjunction with Prosper
Trucking, lnc.'s only relevant truck purchase. Prosper also financed the
purchase through Daimler Trucks' captive finance company.
Purdy Brothers Trucking Co., Inc. (Tennessee) negotiated trade-back
terms, meaning that Purdy received a guaranteed future trade-in value on
its new truck purchase. Purdy also sold trucks back to Freightliner via a
fleet reduction program and financed certain truck purchases through
Daimler Trucks' captive finance company.
Ryan Avenarius (Iowa) did not negotiate the price of his sole purchase
during the Class Period. After providing the dealer with his preferred
specifications, he simply paid the dealer's first quoted price.
(D.I. 233 at 16-17)14 Given that eight of the 11 proposed state classes contain
examples of unique sales incentives as described above, the court is unpersuaded that
plaintiffs can package the evidence such that an individualized inquiry into each
transaction is unnecessary. In other words, plaintiffs' claims may not "be proven with
evidence common to the class because it fails to account for many of the real-world
facts surrounding this complicated market." In re Intel, 2014 WL 6601941, at *15.
Because plaintiffs have failed to show that common evidence can prove antitrust impact
in this complicated truck pricing market without individualized inquiries, class
certification is not proper. Hydrogen Peroxide, 552 F.3d at 311-12.
b. Dr. Lamb's pass-through analysis
Dr. Lamb's pass-through analysis likewise fails to proffer common proof that the
indirect purchasers paid any overcharge. In order to show antitrust impact on the
indirect purchasers, class certification requires plaintiffs to "show that the [alleged]
(Citing D.I. 234, ex 23 at 119:20-121:14; ex. 20 at 65:19-67:2, 43:21-48:12; ex. 41 at
PACCAR091994; ex. 26 at 52:9-54:19; ex. 27 at 54:11-55:2, 84:3-16, 99:6-100:2; ex. 38
at ex. B (reflecting negotiated trade-in value of $80,000 applied to base purchase price
of $107,908); ex. 40 at 56:21-57:16, 44:13-19; ex. 25 at 30:11-32:18, 29:19-30:10, 45:345:21; ex. 39 at 29:1-10)
overcharges are passed on to end purchasers in the form of higher prices to
consumers." In re Intel, 2014 WL 6601941, at *18. Dr. Lamb calculated that 94.2% of
the alleged overcharges were passed-through to indirect purchasers by averaging a
fractional amount of data. (D.I. 185 at 31; D.I. 233 at 21) As Dr. Johnson asserts, Dr.
Lamb only analyzed 1,833 out of 235,868 truck sales during the relevant Class Period.
(D.I. 234, ex. 1 at~ 32) Dr. Lamb then applied the rate attained from that regression
across the entire proposed IPP class, "based on the assumption that the pass-through
rate for the transmission alone is the same as that for the entire truck." (Id.
This amounts to an analysis utilizing less than one percent of the relevant truck sale
data and fails to account for transmission price in the sale of a truck as a whole. In no
way does an analysis of one percent compel the conclusion that plaintiffs can proffer
sufficient common evidence to prove the alleged overcharges were passed through to
indirect purchasers. Dr. Lamb's analysis merely includes data from two dealers in
California, thereby excluding ten of the 11 states for which plaintiffs seek class
certification. (D.I. 233 at 21) Dr. Lamb further fails to account for additional factors that
can affect the relationship between transmission and truck price as discussed above.
As the Supreme Court noted in Comcast, "[t]here is no question that the model failed to
measure damages resulting from the particular antitrust injury on which [defendants']
liability in this action is premised." Comcast, - U.S.-, 133 S. Ct. at 1433. For the
reasons discussed above, the court finds plaintiffs have not met their burden to prove
that common issues predominate. The court, therefore, declines to grant class
The superiority requirement asks the court to balance, in terms of fairness and
efficiency, the merits of a class action against those of alternative available methods of
adjudication. In re Prudential, 148 F.3d at 316. Given the court's findings regarding
adequacy of class representatives and plaintiffs' failure to show that common issues
predominate, class certification under Rule 23(b)(3) would be inappropriate. Hence, the
court declines to address this requirement.
For the reasons stated above, plaintiffs' class certification motion will be denied.
Moreover, because the proposed class lacks representation, the case does not present
a case or controversy under Article Ill. See In re Prudential Ins. Co. Am. Sales Practice
Litig. Agent Actions, 148 F .3d 283, 306 (3d Cir. 1998) (holding that "whether an action
presents a 'case or controversy' under Article Ill is determined vis-a-vis the named
parties"). Accordingly, the case is dismissed. An order shall issue.
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