Burton et al v. BMW AG et al
TRANSFER ORDER re: pldg. ( 1 in MDL No. 2796) Transferring 4 action(s) to Judge Charles R. Breyer in the N.D. California.Signed by Judge Sarah S. Vance, Chair, PANEL ON MULTIDISTRICT LITIGATION, on 10/4/2017. Associated Cases: MDL No. 2796, CAN/3:17-cv-04314, CAN/3:17-cv-04320, NJ/2:17-cv-05440, NJ/2:17-cv-05550 (CMD)
UNITED STATES JUDICIAL PANEL
IN RE: GERMAN AUTOMOTIVE MANUFACTURERS
MDL No. 2796
Before the Panel:* Plaintiffs in a Northern District of California action (Burton) move under
28 U.S.C. § 1407 to centralize this litigation involving anticompetitive conduct in the market for
German-made automobiles in the Northern District of California or, alternatively, the District of
New Jersey. The litigation currently consists of four actions pending in two districts, as listed on
Schedule A. Since the filing of the motion for centralization, the parties have notified the Panel of
twenty additional actions1 pending in seven districts.
All parties support centralization under Section 1407, but disagree on an appropriate choice
of transferee district. Responding plaintiffs in six actions support centralization in the Northern
District of California. Responding defendants2 support centralization in the District of New Jersey,
as do responding plaintiffs in six actions. In addition to the Northern District of California and the
District of New Jersey, responding plaintiffs also suggest centralization in the Central District of
California and the Eastern District of Michigan.
On the basis of the papers filed and the hearing session held, we find that these actions
involve common questions of fact, and that centralization under Section 1407 in the Northern
District of California will serve the convenience of the parties and witnesses and promote the just
and efficient conduct of this litigation. All actions share factual questions arising from allegations
of anticompetitive conduct in the market for German manufactured automobiles. Specifically,
defendants are alleged to have participated in a cartel since the 1990s, in which they shared
commercially-sensitive information and reached unlawful agreements concerning a variety of aspects
of the automotive industry from technology, costs, markets, and suppliers, to mechanical components
and emissions equipment. Plaintiffs allege that in the past five years alone, defendants have held
Judge Charles R. Breyer took no part in the decision of this matter. Additionally, one or
more Panel members who could be members of the putative classes in this litigation have renounced
their participation in these classes and have participated in this decision.
These actions, and any other related actions, are potential tag-along actions. See Panel
Rules 1.1(h), 7.1 and 7.2.
BMW of North America, LLC; Porsche Cars North America; Mercedes-Benz USA, LLC;
Mercedes-Benz U.S. International, Inc.; and Mercedes-Benz Vans LLC; Robert Bosch, LLC;
Volkswagen Group of America, Inc., Audi of America, Inc., and Audi of America, LLC.
-2over 1,000 meetings, which involved more than 200 employees and 60 working groups. Discovery
concerning this alleged international cartel likely will be voluminous. Centralization will eliminate
duplicative discovery; prevent inconsistent pretrial rulings (particularly with respect to class
certification); and conserve the resources of the parties, their counsel and the judiciary.
We are persuaded that the Northern District of California, which is supported by moving
plaintiffs and plaintiffs in six cases, is an appropriate transferee district for this litigation. As an
initial matter, we note that this litigation may share some facts with MDL No. 2672 – In re:
Volkswagen “Clean Diesel” Marketing, Sales Practices, and Products Liability Litigation, which
focuses on a single aspect of the collusion alleged here: emissions equipment. Specifically, in the
cases now before us defendants are alleged to have agreed to limit the size of tanks containing
AdBlue,3 an additive that neutralizes nitrogen oxide emissions in diesel exhaust. The tank size that
defendants had allegedly agreed to adopt was insufficient to meet applicable emissions standards.
According to some plaintiffs, the VW defendants’ adherence to this illegal agreement necessitated
the cheating at the heart of the VW “clean diesel” MDL via emissions cheating technology supplied
by defendant Robert Bosch (which is a defendant in some cases in this litigation). This potential for
factual overlap with MDL No. 2762, and Judge Charles R. Breyer’s oversight of significant
international discovery as to some of the same German defendants in MDL No. 2672, make
centralization of these cases in the Northern District of California a logical choice. Judge Breyer’s
skill and expertise in the adjudication of other complex, multidistrict litigation dockets will without
doubt redound to the benefit of the parties, counsel and witnesses. We are confident that Judge
Breyer will steer this litigation on a prudent course.
During the inception of the AdBlue system, defendants reportedly used differently sized
AdBlue tanks in their respective diesel models. However, according to reports in German media,
defendants met in Sindelfingen on April 5, 2006, and agreed to coordinate on and limit the size of
the AdBlue tanks they would use. There, defendants’ representatives determined that by
coordinating their AdBlue tanks and restricting the size, they could save 80 Euros per car. In
September 2008, Daimler, Audi, VW, and BMW are alleged to have agreed to limit the AdBlue
tanks to eight liters, reasoning that it would be lightweight and cheaper.
-3IT IS THEREFORE ORDERED that pursuant to 28 U.S.C. § 1407, the actions listed on
Schedule A and pending outside the Northern District of California are transferred to the Northern
District of California and, with the consent of that court, assigned to the Honorable Charles R.
Breyer for coordinated or consolidated pretrial proceedings with the actions pending in that district
and listed on Schedule A.
PANEL ON MULTIDISTRICT LITIGATION
Sarah S. Vance
Marjorie O. Rendell
R. David Proctor
Catherine D. Perry
Lewis A. Kaplan
Ellen Segal Huvelle
IN RE: GERMAN AUTOMOTIVE MANUFACTURERS
MDL No. 2796
Northern District of California
BURTON, ET AL. v. BMW AG, ET AL., C.A. No. 3:17-4314
BRISCOE v. BAYERISCHE MOTOREN WERKE AG, ET AL., C.A. No. 3:17-4320
District of New Jersey
KAUFMAN v. BMW AG, ET AL., C.A. No. 2:17-5440
BARRERA v. BMW NORTH AMERICA, LLC, ET AL., C.A. No. 2:17-5550
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