In Re: Class 8 Transmission Indirect Purchaser Antitrust Litigation

Filing 60

MEMORANDUM OPINION. Signed by Judge Sue L. Robinson on 10/16/2012. (nmfn)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
RYAN AVENARIUS, RODNEY E. JAEGER,
JAMES CORDES, and PREMIER PRODUCE
CO., INC., on behalf of the themselves and
all others similarly situated,
Plaintiffs,

v.
EATON CORPORATION, DAIMLER
TRUCKS NORTH AMERICA LLC,
FREIGHTLINER LLC, NAVISTAR
INTERNATIONAL CORPORATION,
INTERNATIONAL TRUCK AND ENGINE
CORPORATION, PACCAR INC.,
KENWORTH TRUCK COMPANY,
PETERBILT MOTORS COMPANY, VOLVO
TRUCKS NORTH AMERICA and MACK
TRUCKS, INC.,
Defendants.

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Civ. No. 11-09-SLR

lan Connor Bifferato, Esquire and Kevin G. Collins, Esquire of Bifferato LLC,
Wilmington, Delaware. Counsel for Plaintiffs. Of Counsel: Lee Albert, Esquire and
Benjamin D. Bianco, Esquire of Murray, Frank & Sailer LLP; Rex A. Sharp, Esquire and
Barbara C. Frankland, Esquire of Gunderson, Sharp & Walke, LLP.
Donald E. Reid, Esquire of Morris Nichols, Arsht & Tunnell, Wilmington, Delaware.
Counsel for Defendant Eaton Corporation. Of Counsel: Joseph A. Ostoyich, Esquire,
Erik Koons, Esquire, and William C. Lavery, Esquire of Baker Botts, LLP.
Richard L. Horwitz, Esquire and W. Harding Drane, Jr., Esquire of Potter, Anderson &
Corroon, LLP, Wilmington, Delaware. Counsel for Defendants Daimler Trucks North
America LLC ) (f/kla Freightliner LLC). Of Counsel: Daniel L. Goldberg, Esquire,
Gregory F. Wells, Esquire and DanielS. Savrin, Esquire of Bingham McCutchen, LLP.
Kelly E. Farnan, Esquire and Lisa A. Schmidt, Esquire of Richards, Layton & Finger,
PA, Wilmington, Delaware. Counsel for Defendant Navistar International Corporation
(f/kla International Truck and Engine Corporation). Of Counsel: Andrew Paul Bautista,

Esquire, Daniel E. Laytin, Esquire, James H. Mutchnik, Esquire and Leslie S.
Garthwaite, Esquire of Kirkland & Ellis, LLP.
Francis DiGiovanni, Esquire and Dana Kathryn Severance, Esquire of Connolly, Bove,
Lodge & Hutz, Wilmington, Delaware. Counsel for Defendants Kenworth Truck
Company, Paccar Inc., and Peterbilt Motors Company. Of Counsel: Carrie M.
Anderson, Esquire, James, C. Egan, Jr., Esquire and Richard R. Cook, Esquire of Weil,
Gotshal & Manges, LLP.
M. Duncan Grant, Esquire of Pepper Hamilton LLP, Wilmington, Delaware. Counsel for
Defendants Mack Trucks Inc and Volvo Trucks North America. Of Counsel: Daniel J.
Boland, Esquire and Jeremy Heep, Esquire of Pepper Hamilton LLP.

MEMORANDUM OPINION

Dated: October 16, 2012
Wilmington, Delaware

RMN

District Judge

I. INTRODUCTION
On October 4, 2010, in the District of Kansas, plaintiffs Ryan Avenarius
("Avenarius"), Rodney E. Jaeger ("Jaeger"), James Cordes ("Cordes") and Premier
Produce Co. ("Premier") (collectively "plaintiffs") filed an antitrust class action complaint
against various defendants, including Eaton Corporation ("Eaton"), Daimler Trucks
North America LLC, Freightliner LLC, Navistar International Corporation, International
Truck and Engine Corporation, PACCAR, Inc., Kenworth Truck Company, Peterbilt
Motors Company, Volvo Trucks North America and Mack Trucks, Inc. (collectively,
"defendants"). (0.1. 1) The case was transferred to this District given its relation to ZF
Meritor LLC v. Eaton Corp., Civ. No. 06-623-SLR (D. Del.) and Wallach v. Eaton Corp.,

Civ. No. 10-260-SLR (D. Del.). Plaintiffs then filed an amended complaint on February
4, 2011. (0.1. 34) The amended complaint asserts the following counts: 1) violation of
18 state antitrust laws (for the following states: AZ; CA; DC; lA; KS; ME; Ml; MN; NE;
NV; NM; NC; NO; SO; TN; VT; WV and WI); 2) violation of 13 state unfair competition
laws (for the following states: AR; CA; DC; FL; HI; MA; NE; NV; NH; NM; NY; NC; VT);
and 3) unjust enrichment. 1
The court has jurisdiction pursuant to 28 U.S.C. § 1332(d)(2). For the following
reasons, the court grants in part and denies in part defendants' motions.
II. BACKGROUND
A. The Parties
Plaintiffs are purchasers of Class 8 trucks and, therefore, indirect purchasers of

1

Plaintiffs make claims in a total of 24 states.

Class 8 transmissions. (D.I. 34

at~~

9-12) Avenarius is an Iowa resident who

purchased a truck in Iowa; Jaeger is an Iowa resident who purchased a truck in
Wisconsin; Cordes is a Michigan resident who purchased a truck in Michigan; and
Premier is a California-based corporation that purchased a truck in California. (/d.)
Defendants are involved in the manufacture and sale of Class 8 trucks. Eaton
manufactures transmissions for Class 8 trucks. (/d.

at~

13) The remaining defendants

(Daimler Trucks North America LLC, Freightliner LLC, Navistar International
Corporation, International Truck and Engine Corporation, Paccar, Inc., Kenworth Truck
Company, Peterbilt Motors Company, Volvo Trucks North America and Mack Trucks,
Inc.), referred to as Original Equipment Manufacturers ("OEMs"), manufacture and sell
Class 8 trucks. (/d. at W 14-21) In order to assemble and sell Class 8 trucks, OEMs
purchase component parts, such as transmissions, from suppliers, such as Eaton. (/d.
at~

27)
B. Class 8 Trucks and Transmissions
There are eight recognized classes of vehicles, with Class 8 trucks being the

heaviest. (/d.

at~

25) Examples of Class 8 heavy duty trucks include the cement truck,

dump truck, and long-distance freighter. (/d.

at~

26) The purchase of Class 8 trucks is

unique in the sense that buyers can essentially build a truck to their desired
specifications. (/d. at ~ 27) When purchasing a Class 8 truck, buyers can consult OEM
"databooks," which list an OEM's standard and non-standard component offerings2 and
2

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. 34 at~ 27) A transmission is an example of a
component part that exists in a databook. (/d.)

2

designate the specific components they desire in their trucks. (/d.)

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. (/d. at W 28; 42-45) In the 1990s, ZF Meritor established itself
as a viable competitor to Eaton, producing desirable, competitive and innovative
transmissions. (/d. at

,m 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. (/d. at ,-r 62)
This conspiracy was allegedly achieved by Eaton entering into Long Term
Agreements ("LTAs") in the early 2000s with each of the four OEMs. 3 (/d. at W 62-68).
While each Eaton-OEM LTAwas separately negotiated and thus distinct, the LTAs
shared a similar purpose and features. (/d. at ,-r,-r 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. (!d.)
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. (/d. at ,-r 77) Aside from tying percentage requirements to rebates, the LTAs
included other provisions designed to minimize ZF Meritor's market share. Examples of
3

A series of mergers in the mid-1990's reduced to four the number of OEMs
purchasing Class 8 transmissions. (0.1. 34 at ,-r,-r 46-48).

3

these provisions include eliminating ZF Meritor transmissions from databooks or
removing them from the standard position, excluding non-Eaton transmissions from
warranty programs and imposing price penalties for selection of a ZF Meritor
transmission. (!d.

at~~

74-113) In 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. (ld.

at~

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. (ld.

at~~

115-117) In the face of

these economic realities, ZF Meritor's market share declined to an insignificant level.
(/d.) 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. (/d.

at~~

4; 114)

Ill. STANDARD
In reviewing a motion filed under Federal Rule of Civil Procedure 12(b)(6), the
court must accept all factual allegations in a complaint as true and take them in the light
most favorable to plaintiff. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Christopher
v. Harbury, 536 U.S. 403, 406 (2002). A court may consider the pleadings, public

record, orders, exhibits attached to the complaint, and documents incorporated into the
complaint by reference. Tel/abs, Inc. v. Makar Issues & Rights, Ltd., 551 U.S. 308, 322
(2007); Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384-85 n.2 (3d
Cir. 1994). A complaint must contain "a short and plain statement of the claim showing
that the pleader is entitled to relief, in order to give the defendant fair notice of what the

4

... claim is and the grounds upon which it rests." Bell At!. Corp. v. Twombly, 550 U.S.
544, 545 (2007) (interpreting Fed. R. Civ. P. 8(a)) (internal quotations omitted). A
complaint does not need detailed factual allegations; however, "a plaintiff's obligation to
provide the 'grounds' of his entitle[ment] to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do."

/d. at 545 (alteration in original) (citation omitted). The "[f]actual allegations must be
enough to raise a right to relief above the speculative level on the assumption that all of
the complaint's allegations are true." /d. Furthermore, "[w]hen there are well-ple[d]
factual allegations, a court should assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief." Ashcroft v. Iqbal, 556 U.S. 662, 129
S.Ct. 1937, 1950 (2009). Such a determination is a context-specific task requiring the
court "to draw on its judicial experience and common sense." /d.

IV. DISCUSSION
A. Standing
Standing requires: "(1) an injury-in-fact ... ; (2) a causal connection between
the injury and the conduct complained of; and (3) that it must be likely, as opposed to
merely speculative, that the injury will be redressed by a favorable decision." Winer
Family Trust v. Queen, 503 F.3d 319, 325 (3d Cir. 2007). Plaintiffs do not reside in or

claim to have bought trucks in twenty of the states in which they make claims (namely,
AZ; AR; DC; FL; HI; KS; ME; MA; MN; NE; NV; NH; NM; NY; NC; ND; SD; TN; VT;
WV); 4 given this, defendants argue that plaintiffs lack standing to sue in those
4

As discussed, the named plaintiffs are residents of Iowa, Michigan and
California; they purchased trucks in those three states and Wisconsin.

5

jurisdictions. (D.I. 47 at 19; D. I. 49 at 19) Defendants specifically contend that courts
"routinely dismiss indirect plaintiffs' efforts to sue under state laws beyond those
implicated by their own alleged injury." (D.I. 49 at 20) Defendants cite a variety of
cases in support of this position. Plaintiffs, in response, cite a variety of cases in which
courts deferred standing decisions until after class certification concerns have been
evaluated. 5 (D.I. 54 at 25)
Courts "generally address challenges to standing as a threshold matter[;]"
however, in class actions "the Supreme Court has crafted an exception to this general
rule: Courts may evaluate class certification issues before Article Ill standing concerns if
the former are 'logically antecedent' to the latter." In re Chocolate Confectionary
Antitrust Litigation, 602 F. Supp. 2d 538, 579 (M.D. Pa. 2009) (citing Ortiz v. Fibreboard
Corp., 527 U.S. 815, 831 (1999)). "Unsurprisingly, this [exception] engendered some

disagreement among federal courts as to when certification issues are 'logically
antecedent' to standing." Blessing, 756 F. Supp. 2d at 451. While the Supreme Court
and Third Circuit are yet to describe "the precise circumstances under which class
certification logically takes precedence over standing," the court, as it has in the past, 6
finds that class certification is logically antecedent to standing considerations.
Chocolate Confectionary, 602 F. Supp. 2d at 579.

5

"The reason that named plaintiffs in a proposed class action bring claims under
[antitrust and] consumer protection laws of states where they do not reside is that it
allows them to preserve those claims in anticipation of eventually being joined by class
members who do reside in the states for which claims have been asserted." Blessing v.
Sirius XM Radio Inc., 756 F. Supp. 2d 445, 452 (S.D.N.Y. 2010)
6

See U.S. v. Dentsply lnt'l., Inc., 2001 WL 624807, at *13 (D. Del. Mar. 30,

2001 ).

6

Defendants also argue that the named plaintiffs have suffered no injuries and,
therefore, lack standing. (D.I. 47 at 20) For the reasons discussed more fully below,
the court disagrees.

B. Antitrust Claims 7
Defendants make a variety of arguments with respect to the legal insufficiency of
plaintiffs' antitrust claims. Each is addressed below:

1. Antitrust injury
To establish antitrust injury, a plaintiff must show: (1) harm of the type the
antitrust laws were intended to prevent; and (2) an injury to the plaintiff that flows from
that which makes the defendant's acts unlawful. Brunswick Corp. v. Pueblo
Bowi-0-Mat, Inc., 429 U.S. 477, 489 (1977); Race Tires America, Inc. v. Hoosier
Racing Tire Corp., 614 F.3d 57, 76 (3rd Cir. 2010). Failure to properly plead antitrust

injury will result in plaintiffs lacking the requisite standing to sue. Gulfstream II
Associates, Inc. v. Gu/fsteam Areospace Corp., 995 F.2d 425, 429 (3rd Cir. 1993).

Defendants argue that neither prong exists. (D.I. 49 at 12)
Prong one of the above test can be satisfied by pleading any one of several
types of harm. A "decrease in competition" is one type of harm the antitrust laws were
intended to prevent. Gulfstream, 995 F.2d at 429. Another is the payment of higher
consumer prices as a result of monopolistic activity or anticompetitive conduct.
Harrison Aire, Inc. v. Aerostar lnt'llnc., 423 F.3d 374 (3rd Cir. 2005); In re DDAVP

7

The parties agree that the relevant state antitrust laws are interpreted in
accordance with federal antitrust law; the court reviews the parties' arguments
accordingly.

7

Direct Purchaser Antitrust Litigation, 585 F.3d 677, 688 (2nd Cir. 2009). Prong two is

generally satisfied by alleging that plaintiff is a "competitor or consumer in the relevant
market." Gulfstream, 995 F.2d at 429. The second prong can also be satisfied by
showing a "'significant causal connection' such that the harm to the plaintiff can be said
to be 'inextricably intertwined' with the antitrust conspiracy." /d. (quoting Blue Shield v.
McCready, 457 U.S. 456, 484 (1982)).

In the present case, plaintiffs identify themselves as consumers 8 of Class 8
transmissions (0.1. 34 at W 9-12; 27), thereby satisfying prong two, and claim a
decrease in competition (id. at e.g.

~m

2-3; 67-68; 115; 118), satisfying prong one.

Plaintiffs have also alleged, several times and in several different ways, that they paid
higher prices for Class 8 transmissions than they would have had to pay if no
conspiracy had existed. 9 (!d. at e.g.

W 3-4;

62; 68; 114)

2. Conspiracy

8

While plaintiffs admittedly received the transmissions as component parts of
the Class 8 trucks they purchased, plaintiffs are consumers in the sense that they could
choose which specific type of transmissions they wanted installed in their trucks. (0.1.
34 at~ 27)
9

Defendant Eaton objects to the sufficiency of this latter type of injury. (0.1. 49
at 13) Specifically, Eaton argues that 1) the rebates resulted in lower priced
transmissions, and 2) even if they didn't, the OEMs "significant control" over the pricing
of truck and truck components forecloses any argument that the overcharge flowed
from Eaton (as opposed to an OEMs' independent decision). (!d. at 13) While the
decrease in competition is an injury that flows to the consumer and, therefore, higher
prices are not the sole type of injury alleged, the court nevertheless responds in brief.
With respect to argument one, the complaint does not allege that transmission prices
were lowered. See infra, pg 11. With respect to argument two, even if the OEMs set
the ultimate price, that does not mean that the ultimate overcharge was not inextricably
intertwined with the conspiracy.

8

An agreement, or conspiracy, under federal antitrust laws is said to exist when
"there is a unity of purpose, a common design and understanding, a meeting of the
minds, or a conscious commitment to a common scheme." West Penn Allegheny
Health Sys. v. UPMC, 627 F.3d at 99 (citing Twombly, 550 U.S. at 553). "A plaintiff
may plead an agreement by alleging direct or circumstantial evidence, or a combination
of the two," but allegations of direct evidence, that are adequately detailed, are
sufficient alone. /d. When alleging the existence of an agreement based on
circumstantial evidence, a plaintiff may not plead mere parallel conduct or conclusory
allegations of agreement. Twombly, 550 U.S. at 556-57. Instead, "when allegations of
parallel conduct are set out in order to make a [federal antitrust] claim, they must be
placed in a context that raises a suggestion of a preceding agreement, not merely
parallel conduct that could just as well be independent action." /d. at 557. To place
them in such a context, courts have required the pleading of certain "plus factors." In re
Insurance Brokerage Antitrust Litigation, 618 F.3d 300, 321 (3rd Cir. 201 0). While
there is no finite set of plus factors, one recognized, and important, plus factor is
parallel action that is contrary to self interest. /d. at 321-23. Ultimately, however, plus
factors are simply circumstances in which the inference of independent action is less
likely than that of concerted action. /d. at 323.
In the present case, plaintiffs have alleged the existence of a single rimmed huband-spoke conspiracy, in which Eaton individually agreed to work with each OEM and
the OEMs in turn agreed to work together. (D. I. 54 at 20) Defendants contend that the
existence of such a horizontal conspiracy against the OEMs has not been sufficiently

9

pled. 10 (D.I. 47 at 13; D. I. 49 at 16) Contrary to defendants' assertions, the court finds
that sufficient parallel conduct and plus factors have been set forth in the amended
complaint. The complaint alleges that Eaton and each OEM negotiated and put into
place similar LT As that provided for lucrative rebates in exchange for meeting shared
penetration goals; the LTAs also contained other provisions that minimized ZF Meritor's
market share. See section II.C, supra. According to the complaint, it was the OEMs
that approached Eaton to set up these LTAs. (D. I. 34

at~

64) Aside from this parallel

conduct, plaintiffs allege the existence of a plus factor. Contrary to their self interest,
the OEMs' parallel action essentially resulted in the installation of a monopolist (Eaton)
in their supply chain and the elimination of a supplier with desirable products. Further,
the complaint alleges that the OEMs "uniformly refused" to adopt "lower-cost-counterproposals from ZF Meritor." (/d.

~

71) Passing up such a potential competitive

advantage suggests that the OEMs agreed among themselves to enter into the LTAs
and eliminate ZF Meritor in contravention of their own self interests in exchange for a
share in the profits from the resulting monopoly.
Defendants argue that a horizontal conspiracy among the OEMs, even if
sufficiently pled, would make no economic sense and, therefore, be implausible. (D.I.
47 at 11) In this regard, defendants contend that it would make no sense for the OEMs
to install a monopolist- here Eaton- in their supply chain. (/d.) While defendants, and

10

While plaintiffs plead the existence of individual Eaton-OEM conspiracies in
the alternative and defendants also make arguments premised on the assumption that
plaintiffs have failed to plead a rimmed conspiracy, the court will not address these
alternative theories and arguments since it finds that a single overarching (rimmed huband-spoke) conspiracy has been sufficiently pled.

10

the cases they cite, correctly point out that it would not ordinarily make sense (in the
long term) to install a monopolist in a supply chain, under the facts pled, the OEMs
benefitted economically, in the form of rebates, making it economically practicable (at
least in the short term). 11 Accordingly, at this point, prior to discovery, the court will not
dismiss the case for lack of plausibility. Defendants also assert that the OEMs, by
receiving rebates, acquired the transmissions for lower prices and, thus, charged less
when they sold them to consumers. (D. I. 47 at 12) Contrary to defendants' position,
however, plaintiffs have alleged that the OEMs received rebates after meeting annual
percentage targets; therefore, any savings from these rebates were not passed through
to the consumers on their individual transmission purchases. (0.1. 54 at 18 (citing 0.1.
34 at 1J62))

3. Specific intent
Specific intent "means an intent which goes beyond the mere intent to do the act.
In other words, the defendant must have intended to achieve an illegal monopoly."
Hess//, 602 F.3d at 257 (citations and quotations omitted). Specific intent may be
shown through direct, i.e., "smoking gun," evidence or can be shown through
circumstantial evidence. Advo v. Philadelphia Newspapers, Inc., 51 F.3d 1191, 1199
(3rd Cir. 1995).
Both Eaton and the OEMs argue that plaintiffs have failed to plead the requisite
intent required of them. The court disagrees. The complaint explains that Eaton
employees acknowledged that Eaton's goal was to put ZF Meritor out of business.
11

Moreover, as the complaint explains, defendants were used to operating with
one supplier (i.e., Eaton).
11

(See e.g. D. I. 34 at 1J1J3; 83) Similarly, the complaint details that OEM employees
admitted sharing Eaton's goal of monopoly power or, at the least, acknowledged
committing to the common scheme. (/d. at 1J1l 84; 89; 97; 11 0); see a/so ZF Meritor,
LLC v. Eaton Corp., 769 F. Supp. 2d 684, 698 (D. Del. 2011 ).
C. Consumer Protection Claims
Defendants raise a variety of arguments with respect to plaintiffs' state consumer
protection claims. (D. I. 47 at 24-34) In particular, however, defendants argue that
"plaintiffs' boilerplate consumer protection allegations cannot satisfy the Rule 8(a)
requirements as articulated by Twombly and Iqbal." (ld. at 27) The court agrees.
While Fed. R. Civ. P. 8(a) requires only "a short and plain statement of the claim
showing that the pleader is entitled to relief," this standard requires "more than an
unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers
'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action
will not do."' Ashcroft v. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).
Plaintiffs' state consumer protection claims contain essentially identical
allegations, save for citations to state statutes. (D.I. 34 at 1l1J158-247) The complaint
does not contain specific reference to the various state standards under which the
claims are made or tailor facts to suit the "significant differences among States'
consumer protection laws." Thompson v. Jiffy Lube lnt'/lnc., 250 F.R.D. 607, 625 (D.
Kan. 2008) (emphasis in original); (see a/so D. I. 47 at 24-34). While the court
acknowledges that the early part of the complaint contains a more detailed fact
discussion which, conceivably, would temper a more formulaic recitation of a specific

12

count, the allegations in the consumer protection section of the complaint do not clearly
relate back the introductory fact section. 12 Ultimately, as defendants explain, plaintiffs'
"formulaic recitations, unhinged from the facts actually alleged and from the elements of
the causes of action, are exactly the type of allegations that Twombly and Iqbal reject."
(D.I. 47 at 29) In other words, plaintiffs' generalized recitations, which are unhinged
from the precise statutory basis for the claims, does not provide defendants with the
type of notice required. Because more was required of plaintiffs, defendants' motion to
dismiss the state consumer protection claims is granted; however, plaintiffs are granted
leave to amend these claims consistent with this opinion. 13

D. Unjust Enrichment Claims
Defendants set forth a variety of arguments in an attempt to have plaintiffs'
unjust enrichment claims dismissed. Defendants initially argue that plaintiffs have failed
to identify which state unjust enrichment laws they are proceeding on and this defect is
fatal. (See D.l. 47 at 35 and D.l. 49 at 22 (citing In re Wel/butrin XL Antitrust Litigation,
260 F.R.D. 143, 167 (E.D. Pa. 2009) ("The plaintiffs fail to link their [unjust enrichment]
claim to the law of any particular state. As a result of this deficiency, the plaintiffs fail to

12

For instance, the consumer protection portion of the complaint references
secret high level meetings among defendants, false or misleading statements made to
buyers, a disparity in bargaining power between plaintiffs and defendants, and plaintiffs'
inability to negotiate pricing. (See e.g., D. I. 34 at ,-r,-r 252-252) The introductory facts
section, however, does not discuss these facts which evidently would be relevant or
critical to state-based consumer protection claims.
13

Because the court grants the motion on the overall nature of the allegations, it
does not opine on defendants' more specific consumer protection contentions. Once
plaintiffs amend, defendants are free to re-raise their more specific arguments and it
should be easier for defendants and the court to address these issues at that point in
time.
13

state a cause of action under their third [unjust enrichment] count.")) Plaintiffs disagree,
noting that the complaint identifies 24 jurisdictions in the class (D. I. 34 at 1!149) and the
unjust enrichment provisions of the complaint refer to that "Class." (ld. at 329-331)
The unjust enrichment section of the complaint arguably limits plaintiffs' claims to
those 24 jurisdictions; however, that was, understandably, not certain from defendants'
perspective. While the unjust enrichment section of the complaint refers back to "the
Class," as defendants point out, "the Class" is not unambiguously limited to those 24
jurisdictions; the complaint identifies 24 "state specific subclasses," (D.I. 34 at 1!149),
but also claims to "bring this action on behalf of ... [a]ll persons or entities that
indirectly purchased, in the United States, Eaton Class 8 Truck Transmissions" (id. at
148). Defendants' lack of certainty was manifest in their motion to dismiss and
respective briefs which more generally objected to plaintiffs' unjust enrichment claims.
Generic pleading and generic responsive briefing is inappropriate given that states
analyze unjust enrichment claims differently. See, e.g., In re Flonase Antitrust
Litigation, 610 F. Supp. 2d 409, 419 (E.D. Pa. 2009). Accordingly, defendants' motion

to dismiss plaintiffs' unjust enrichment claims is granted for failure to sufficiently identify
those jurisdictions under which it brings its claims. Plaintiffs, however, are granted
leave to amend consistent with this opinion. 14 Chocolate Confectionary, 602 F. Supp.
2d at 587.

14

Assuming plaintiffs wish to bring claims under the 24 jurisdictions they identify
in their brief, their amended complaint should clearly indicate as much. Defendants,
assuming they re-file a motion to dismiss, are expected to make arguments tailored to
the varied state unjust enrichment standards under which plaintiffs make claims for
relief.
14

E. Statute of Limitations

Defendants contend, based upon plaintiffs' failure to plead the existence of a
specific truck purchase, that plaintiffs' claims are time-barred by the applicable state
statutes of limitation. (0.1. 49 at 24) Instead of listing specific purchases in their
complaint and the dates on which those purchases occurred, plaintiffs generally allege
that they purchased one or more trucks from one or more of the defendants during the
class period asserted (October 1, 2002 -the present). (0.1. 34 at ,-r,-r 9-12; 148)
Contrary to defendants' position, plaintiffs are not required to plead sufficient
facts so as to avoid an affirmative defense. As the Third Circuit explained in Bethel v.
Jendoco Construction Corp., 570 F.2d 1168 (3rd Cir. 1978):
Under Fed.R.Civ.P. 8(c), the statute of limitations constitutes an affirmative
defense to an action. Under the law of this and other circuits, however, the
limitations defense may be raised on a motion under Rule 12(b)(6), but only
if the time alleged in the statement of a claim shows that the cause of action
has not been brought within the statute of limitations. If the bar is not
apparent on the face of the complaint, then it may not afford the basis for
dismissal of the complaint under Rule 12(b)(6).

/d. at 1174 (citations and quotations omitted). Since plaintiffs' generalized allegations
regarding purchase do not necessarily place them outside of the applicable statutes of
limitation, the court does not find plaintiffs' claims time-barred at this stage of the
proceedings. 15
V. CONCLUSION

For the reasons discussed above, the court denies defendants' motions to

15

In light of this finding, arguments concerning fraudulent concealment and
tolling are deferred until purchase dates, and thus statute of limitation time frames, are
clearly identified.
15

dismiss with respect to the state antitrust claims and grants defendants' motions with
respect to the consumer protection and unjust enrichment claims with leave to amend.
An appropriate order shall issue.

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