1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 IN RE CALIFORNIA GASOLINE SPOT Case No. 20-cv-03131-JSC
8 MARKET ANTITRUST LITIGATION ORDER RE: DEFENDANTS’ 9 MOTIONS TO STAY AND DISMISS 10 Re: Dkt. Nos. 222, 224 11
12 13 Plaintiffs allege that Defendants entered into horizonal agreements to restrain competition 14 in the spot market for gasoline and gasoline blending components formulated for use in California. 15 Plaintiffs filed a putative class action bringing federal and state antitrust claims as well as state law 16 unfair competition and unjust enrichment claims against SK Trading International Co., Ltd. (“SK 17 Trading”), SK Energy Americas, Inc. (“SK Energy”), Vitol Inc. (“Vitol”), and two individual 18 defendants. Defendants’ joint motion to stay this action pending a related state court action and 19 motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) are now pending before the 20 Court.1 (Dkt. Nos 222, 224.) Having considered the parties’ briefs and having had the benefit of 21 oral argument on January 28, 2021, the Court GRANTS IN PART and DENIES IN PART the 22 motion to dismiss. Plaintiffs’ Sherman Act claim is dismissed as Plaintiffs have not established 23 standing to pursue a claim for injunctive relief and their UCL claim is dismissed as they have 24 failed to show that their legal remedies are otherwise inadequate. The motion to dismiss is 25 otherwise denied. Defendants’ motion to stay is DENIED because Defendants have failed to 26 establish a basis to stay this action under either Colorado River or this Court’s inherent authority. 27 1 BACKGROUND 2 A. Consolidated Class Action Complaint Allegations 3 The gravamen of the CCAC is that SK Trading, SK Energy, and Vitol conspired to 4 “restrain competition in the spot market for gasoline formulated for use in California and in certain 5 gasoline blending components used in that gasoline.” (Consolidated Class Action Complaint 6 (“CCAC”), Dkt. No. 186 at ¶ 1.2) “Defendants’ scheme exploited a disruption in refining capacity 7 that resulted from an incident at the refinery in Torrance, California wherein a cracking unit 8 exploded which impaired the refinery’s ability to refine alkylates from February 2015 through at 9 least June 2016. (Id. at ¶ 3.) The corporate Defendants and their employees—Lucas and 10 Niemann—recognized that the supply disruption provided by the explosion provided them an 11 opportunity to artificially inflate the price of alkylates and thus gasoline (given the relationship 12 between the two). (Id. at ¶ 4.) Defendants negotiated large contracts to supply gasoline and 13 gasoline blending components for delivery in California and entered into agreements with each 14 other to “manipulate the spot market price for refined gasoline and gasoline blending components 15 so that they could realize windfall profits on these contracts.” (Id. at ¶¶ 5-6.) They also entered 16 into profit sharing agreements and agreements to disguise their market interference. (Id.) 17 “Defendants’ repeated and pervasive manipulation of the spot market price caused retail 18 gasoline prices to be higher throughout the Class Period.” (Id. at ¶ 152.) Indeed, California 19 Energy Commission’s Petroleum Market Advisory Committee “concluded that Californians may 20 have paid at least $12 billion in extra gasoline costs due to the ‘unexplained differential’ since the 21 2015 Torrance Refinery explosion.” (Id. at ¶ 155.) Plaintiffs thus allege that they paid more for 22 gasoline as a result of Defendants’ illegal activities. (Id. at ¶ 9.) 23 B. Procedural Background 24 Before this action was filed, the California Attorney General filed a parens patriae action 25 in the San Francisco Superior Court. See The People of the State of California v. Vitol, Inc., et al., 26 Case No. CGC20584456 (S.F. Superior, filed May 4, 2020) (“AG Action”). The AG Action 27 1 includes Cartwright Act and UCL claims. Pacific Wine Distributors, Inc., filed the first action in 2 this District two days after the AG Action was filed, on May 6, 2020. (Dkt. No. 1.) The other 3 named plaintiffs subsequently filed separate actions, each of which was related to this action. The 4 parties thereafter stipulated that all 23 related actions would be consolidated for purposes of trial. 5 (Dkt. Nos. 67, 121, 133, 146, 148, 174.) The Court then appointed Hausfeld and Girard Sharp as 6 co-lead interim class counsel. (Dkt. No. 167.) Shortly thereafter, Plaintiffs filed the now operative 7 Consolidated Class Action Complaint which includes class claims for (1) violation of the Sherman 8 Act, 15 U.S.C. § 1; (2) violation of the Cartwright Act, Cal. Bus. & Prof. Code § 16720; (3) 9 violation of California’s Unfair Competition Law, Cal. Bus. & Prof. Code § 17200; and (4) unjust 10 enrichment. (Dkt. No. 186.) 11 Following a status conference on October 6, 2020, the Court set a phased briefing schedule 12 for Defendants’ forthcoming Rule 12(b) motions with SK Trading’s motion to dismiss for lack of 13 personal jurisdiction and improper venue to be heard before the other Defendants’ Rule 12(b)(6) 14 motion and motion to stay. (Dkt. No. 207.) The motion to dismiss for lack of personal jurisdiction 15 and improper venue under Rule 12(b)(2), (3) came before the Court for hearing on December 16, 16 2020 and the Court subsequently granted Plaintiffs leave to take jurisdictional discovery and 17 deferred ruling on the motion. (Dkt. No. 263.) The Rule 12(b)(6) motion and motion to stay came 18 before the Court for hearing on January 28, 2021. 19 DISCUSSION 20 Defendants move to stay this action in light of the AG’s action in state court and to dismiss 21 each of Plaintiff’s claims under Federal Rule of Civil Procedure 12(b)(6) for failure to state a 22 claim and as barred in part by the statute of limitations. 23 I. MOTION TO DISMISS 24 A. The Cartwright Act 25 The Cartwright Act, Business and Professions Code section 16700 et seq., was “enacted to 26 promote free market competition and to prevent conspiracies or agreements in restraint or 27 monopolization of trade.” Exxon Corp. v. Super. Ct., 51 Cal. App. 4th 1672, 1680 (1997). To state 1 conspiracy; (2) illegal acts done pursuant thereto; and (3) damage proximately caused by such 2 acts.” In re High-Tech Emp. Antitrust Litig., 856 F. Supp. 2d 1103, 1126 (N.D. Cal. 2012) 3 (quoting Kolling v. Dow Jones & Co., 137 Cal. App. 3d 709, 718 (1982)); see also Cty. of 4 Tuolumne v. Sonora Cmty. Hosp., 236 F.3d 1148, 1160 (9th Cir. 2001) (“The analysis under 5 California’s antitrust law mirrors the analysis under federal law because the Cartwright Act, Cal. 6 Bus. & Prof. Code § 16700 et seq., was modeled after the Sherman Act.”). 7 Plaintiffs allege Defendants entered into an agreement that constitutes a per se violation of 8 the Cartwright Act. (CCAC at ¶ 177.) Under the per se rule, certain categories of restraint are 9 treated as “necessarily illegal [which] eliminates the need to study the reasonableness of an 10 individual restraint in light of the real market forces at work.” Leegin Creative Leather Prod., Inc. 11 v. PSKS, Inc., 551 U.S. 877, 886 (2007) (quoting Business Electronics Corp. v. Sharp Electronics 12 Corp., 485 U.S. 717, 723 (1988)). “Restraints that are per se unlawful include horizontal 13 agreements among competitors to fix prices, or to divide markets.” Leegin, 551 U.S. at 886. To 14 state a claim for a per se antitrust violation, Plaintiffs must allege that Defendants “(1) entered into 15 an agreement (2) to fix prices, rig bids, or divide a market.” In re WellPoint, Inc. Out-of-Network 16 UCR Rates Litig., 865 F. Supp. 2d 1002, 1025 (C.D. Cal. 2011). 17 Defendants insist that Plaintiffs’ Cartwright Act claim is deficient because it fails to plead 18 (1) an unlawful agreement to restrain trade, (2) causation, and (3) injury. The Court addresses 19 each in turn. 20 1) Unlawful Agreement to Restrain Trade 21 The Ninth Circuit recently summarized the federal court requirements for pleading an 22 unlawful agreement to restrain trade:
23 Rule 8(a)(2) of the Federal Rules of Civil Procedure requires “a short and plain statement of the claim showing that the pleader is entitled 24 to relief.” The Supreme Court has held that plaintiffs must put forth: enough factual matter (taken as true) to suggest that an agreement was 25 made.
26 Asking for plausible grounds to infer an agreement does not impose a probability requirement at the pleading stage; it simply calls for 27 enough fact to raise a reasonable expectation that discovery will upon Twombly and its companion case, Ashcroft v. Iqbal, 556 U.S. 1 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), we have held that to state a claim for antitrust conspiracy, plaintiffs must allege “‘who, did 2 what, to whom (or with whom), where, and when?’”
3 In the context of antitrust conspiracy claims, plaintiffs may meet their burden by alleging parallel conduct among competitors and certain 4 “plus factors” suggesting a conspiracy. Alternatively, plaintiffs may meet their burden by putting forth direct evidence of an agreement. 5 To meet the direct evidence standard, however, the evidence must explicitly support the asserted proposition without requiring any 6 inference. 7 Frost v. LG Elecs., Inc., 801 F. App’x 496, 497 (9th Cir. 2020). Plaintiffs sufficiently allege the 8 who, what, when, and where and the existence of a conspiracy through direct evidence. 9 Plaintiffs allege that in October 2014 a Vitol executive advised Lucas—Vitol’s primary 10 West Coast gasoline and its blending components trader—that Vitol was looking to work with SK 11 in 2015 and that Lucas should keep the information “super” confidential. (CCAC at ¶ 99.) The 12 following month an internal SK status report explained that Vitol wanted to cooperate with SK in 13 the California market. (Id. at ¶ 100.) The cooperation agreements were not in writing and legal 14 counsel for neither party was involved; indeed, “Vitol and SK took steps not to reveal the nature 15 of these agreements to other market participants.” (Id. at ¶ 101.) 16 While there was ample gasoline supply in the California market at the time the parties 17 began cooperating, by December 2014 “there were indications that a significant refinery outage 18 might occur.” (Id. at ¶ 103.) And indeed, in mid-December 2014, Lucas sent an email to 19 Niemann reporting that ExxonMobil had shut a hydrocracker for a leak (a hydrocracker is a part of 20 a refinery involved in the refining of heavier oils into fuel). (Id.) Lucas added that he hoped the 21 shut down would last a month or two, to which Niemann speculated that the leak could cause 22 further damage. Lucas called further damage “ideal,” but “probably too much to wish for,” to 23 which Niemann responded “it’s a start at least.” (Id.) Shortly thereafter, Niemann, on behalf of 24 SK Energy, began trading premium gasoline for the first time in California, and Niemann and 25 Lucas expanded their coordination to include premium gasoline trading. (Id. at ¶ 105.) By this 26 time, “Niemann was the senior trader for SK with responsibility for California trading, Lucas had 27 the same role with Vitol, and their respective firms were horizontal competitors in the California 1 The Exxon-Mobile Torrance Refinery explosion occurred on February 18, 2015, forcing 2 the Refinery to shut down. (Id. at ¶¶ 106-107.) As a result, Exxon-Mobile “needed to replace a 3 significant amount of lost gasoline and alkylate production in California.” (Id. ¶ 107.) 4 Accordingly, it entered into contracts with gasoline trading firms like SK and Vitol to negotiate 5 the purchase of Regular gasoline. (Id. ¶ 108.) 6 Exxon-Mobile’s contracts with SK and Vitol had floating prices tied to the California 7 gasoline-spot market and, in particular, to the prices reported to the Oil Price Information Service, 8 LLC (OPIS), a private subscription service. Once trades are disclosed to OPIS, OPIS reports them 9 in a Daily Market Report. (Id. ¶ 71-73, 108.) Not many trades are reported to OPIS: as few as 5 to 10 15 per day for Regular gasoline and as few as one to zero for Premium gasoline. (Id. ¶ 74.) Thus, a 11 few trades set the prices for Exxon-Mobile’s separate contracts with Defendants. 12 Plaintiffs allege that unbeknownst to Exxon-Mobile—or the spot market as a whole—Vitol 13 and SK agreed to manipulate the trades reported to OPIS and therefore artificially inflate the price 14 that Exxon-Mobile paid to SK and Vitol under its separate contracts with each, and then to share 15 the profits from their Exxon-Mobile contracts. The manipulation often involved taking a loss on a 16 trade reported to OPIS (paying an artificially high price), but more than making up that loss in 17 what Exxon-Mobile paid under the contracts tied to the OPIS-reported price. (¶¶ 112-118.) Vitol 18 and SK would engage in these market-making trades with each other and with third parties. 19 Among other tactics, they would also engage in second trades with each other that they did not 20 report to OPIS that were the opposite of the OPIS-reported trade; these hidden trades ensured there 21 was little market risk for either party. (Id. ¶ 124.) 22 Defendants do not appear to dispute that Plaintiffs’ allegations are sufficient to 23 demonstrate an agreement. Instead, Defendants insist that Plaintiffs’ allegations at best 24 demonstrate lawful “output-increasing joint ventures to import alkylate into California and sell it 25 during a supply shortage.” (Dkt. No. 266 at 15:13-14.) To be sure, it is not per se unlawful for 26 two competitors to enter into a joint venture. See Ixchel Pharma, LLC v. Biogen, Inc., 9 Cal. 5th 27 1130, 1161 (2020). But Plaintiffs’ allegations are not that Defendants engaged in a joint venture 1 were effectively a sham or pretext for unlawful cooperation and were a method of engaging in 2 prearranged transactions in restraint of trade to avoid competition in violation of federal and state 3 antitrust laws.” (CCAC at ¶ 138.) The question is whether drawing all reasonable inferences in 4 Plaintiffs’ favor, they have plausibly pled a joint venture agreement as a pretext to restrain trade. 5 They have. 6 The alleged joint venture was not in writing, not reviewed by counsel, and not known to 7 Exxon-Mobile or the market as a whole. Defendants referred to their cooperation as being super 8 secret and when Lucas asked for confirmation of the agreement via email, Niemann responded 9 that he agreed, but “never sent anything before as didn’t think you wanted me to do that.” (Id. at ¶ 10 133.) In June 2016, Vitol executives wrote regarding a trade with SK: “we JV the back side no 11 one knows this so P[rivate] & C[onfidential].” (Id. ¶ 135.) Neither SK nor Vitol publicized their 12 alleged joint venture even though they had done so with other joint ventures in the past. (¶Id. at 13 139.) Drawing all reasonable inferences in Plaintiffs’ favor, the CCAC plausibly alleges that the 14 so-called joint venture was a subterfuge for an illegal price-fixing conspiracy. The allegations are 15 thus distinguishable from Kendall v. Visa, U.S.A., Inc., 518 F.3d 1042 (9th Cir. 2008) and In re 16 Musical Instruments & Equip. Antitrust Litig., 798 F.3d 1186 (9th Cir. 2015), which challenged 17 public and transparent business arrangements with an obvious pro-competitive purpose. 18 Defendants next insist that Plaintiffs have not plausibly pled an antitrust price fixing 19 conspiracy because they have not identified a single specific trade that Defendants engaged in as 20 part of their manipulation of OPIS. They appear to argue that while Plaintiffs may have plausibly 21 alleged a price-fixing conspiracy given the emails, meetings, and fact that prices remained high for 22 longer than would be expected, they do not sufficiently allege how the price fixing occurred. In 23 other words, while the outlines of how the scheme operated might be sufficiently alleged, 24 Plaintiffs have not alleged enough details to support a plausible inference that what is alleged is 25 how the conspiracy actually worked. 26 Defendants demand more at this litigation stage than Rule 8 requires. Rule 8 requires that 27 Plaintiffs allege enough factual matter (taken as true) to suggest that an agreement was made. 1 the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery 2 will reveal evidence of illegal agreement.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). 3 Here, if the alleged facts—agreeing to cooperate as suggested by the quoted emails, manipulating 4 OPIS-reported trades to inflate the price of their contracts, and prices remaining inflated for longer 5 than would be expected—are taken as true, there is a reasonable expectation that discovery will 6 disclose evidence of the horizontal price-fixing agreement. To put it another way, Plaintiffs have 7 alleged the who (Vitol (through Lucas) and SK (through Neimann), did what to whom 8 (manipulated OPIS-reported trades to artificially inflate the prices paid by Exxon-Mobile on its 9 separate contracts with Vitol and SK), where (in California) and when (late 2014 through 2016). 10 The allegations plausibly support an inference of a per se unlawful agreement to fix prices. 11 2) Causation and Injury 12 Under the Cartwright Act, the plaintiff must also show that an antitrust violation was the 13 proximate cause of its injuries. Kolling v. Dow Jones & Co., 137 Cal.App.3d 709, 723 (1982). 14 Both direct and indirect purchasers have standing under the Cartwright Act. Cellular Plus, Inc. v. 15 Superior Court, 14 Cal. App. 4th 1224, 1234 (1993). “[T]he case will be quite rare in which a per 16 se violation ... does not cause competitive injury.” Kolling, 137 Cal. App. 3d at 724. 17 Defendants insist that Plaintiffs have failed to demonstrate either injury or causation 18 because Plaintiffs have not identified specific trades or pricing windows that were impacted by 19 Defendants’ conduct, Plaintiffs have not shown how any upmarket trades could have affected 20 downstream consumers, and because Plaintiffs’ theory is implausible in light of other market 21 forces which caused elevated gasoline prices (such as, presumably, the refinery explosion). 22 Plaintiffs, however, are not required to plead specific trades to plead injury for a Cartwright Act 23 claim. See Darush v. Revision LP, No. CV 12-10296 GAF AGRX, 2013 WL 8182502, at *5 24 (C.D. Cal. July 16, 2013) (finding that plaintiffs’ allegations that its ‘injury is caused by [its] 25 unlawful termination as a distributor—pursuant to Defendants’ unlawful price fixing agreement— 26 resulting in a reduction in competition and increased prices to consumers purchasing Revision 27 products’” adequately alleged injury); see also Flagship Theatres of Palm Desert, LLC v. Century 1 2011) (To allege an antitrust injury, the plaintiff “must show that it was injured by the 2 anticompetitive aspects or effects of the defendant’s conduct, as opposed to being injured by the 3 conducts neutral or even procompetitive aspects … to make that showing, the plaintiff need not 4 show that the market has actually become less competitive than it would have been without the 5 defendant’s conduct.”). 6 Plaintiffs allege that
7 Defendants’ anticompetitive and unlawful conduct has proximately caused injury to Plaintiffs and members of the Class by restraining 8 competition and thereby raising, maintaining and/or stabilizing the prices of gasoline at levels above those that would have prevailed in 9 a competitive market. Defendants’ conduct restrained trade in the market in which Plaintiffs and members of the Class made their 10 purchases. In paying overcharges as a result of Defendants’ conduct, Plaintiffs and members of the Class suffered an injury of a type which 11 the antitrust laws were designed to redress. 12 (CCAC at ¶ 178.) These allegations combined with Plaintiffs’ allegations of a scheme to inflate 13 and otherwise impact the price of gasoline in California, as described above, adequately plead 14 causation and an antitrust injury. Whether other factors likewise impacted the price so as to 15 undermine Plaintiffs’ allegations that Defendants’ actions were the proximate cause of their injury 16 is not a question that can be resolved at the pleading stage. “[T]he antitrust injury requirement 17 means that in order to prevail on its antitrust claims, [Plaintiffs] must show that its “loss stems 18 from a competition—reducing aspect or effect of the defendant’s behavior.” Flagship Theatres, 19 198 Cal. App. 4th at 1381. 20 *** 21 Accordingly, Defendants’ motion to dismiss Plaintiffs’ Cartwright Act claim is denied. 22 B. The Sherman Act 23 As discussed above, Plaintiffs allege that Defendants’ activities constitute a per se 24 violation of the Sherman Act, 15 U.S.C. § 1. (CCAC at ¶ 171.) However, Plaintiffs only seek 25 injunctive relief for their Sherman Act claim. Under Section 16 of the Clayton Act, a party may 26 seek injunctive relief “against threatened loss or damage by a violation of the antitrust laws.” 15 27 U.S.C. § 26. Defendants insist that Plaintiffs lack standing to seek injunctive relief because there 1 Plaintiffs respond that past exposure to illegal conduct accompanied by continuing adverse 2 effects is sufficient to establish standing. They insist that the “‘mystery gasoline surcharge’ is a 3 continuing phenomenon.” (Dkt. No. 253 at 32:10-11.) However, the paragraphs of the CCAC 4 that Plaintiffs identify—paragraphs 7 and 141—do not allege that it is a continuing phenomenon. 5 Paragraph 7 quotes from a 2017 news article which described gas prices as “still out of whack.” 6 Likewise, paragraph 141 describes the price spike through 2018. Neither of these paragraphs 7 plausibly suggest that the surcharge is ongoing into 2021. Moreover, Plaintiffs elsewhere cabin 8 the effects as lasting through 2017. (CCAC ¶ 146 (“California gas prices remained at levels 9 substantially above the historic average through 2015 and 2016 and into 2017”). “Past exposure 10 to illegal conduct does not in itself show a present case or controversy regarding injunctive relief, 11 however, if unaccompanied by any continuing, present adverse effects.” O’Shea v. Littleton, 414 12 U.S. 488, 495–96 (1974). 13 Plaintiffs next “point to potential future conduct.” (Dkt. No. 253 at 32:15.) Potential 14 harm, however, is insufficient. As the Supreme Court has “repeatedly reiterated[,] threatened 15 injury must be certainly impending to constitute injury in fact, and [] [a]llegations of possible 16 future injury are not sufficient.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013) (internal 17 citation and quotation marks omitted). Instead, Plaintiffs must demonstrate “a significant threat of 18 injury from an impending violation ... or from a contemporary violation likely to continue or 19 recur.” In re New Motor Vehicles Canadian Exp. Antitrust Litig., 522 F.3d 6, 12–13 (1st Cir. 20 2008) (internal citation and quotation marks omitted). In New Motor Vehicles, for example, the 21 First Circuit found that plaintiffs lacked standing to pursue their Sherman Act injunctive relief 22 claim because “[t]he perfect storm that allegedly precipitated massive arbitrage opportunities for 23 selling Canadian cars in the United States ceased long ago.” Id. at 15 (internal quotation marks 24 omitted). So too here. 25 Plaintiffs’ allegations relate to Defendants’ actions in 2014-2016. (CCAC ¶¶ 97-157.) 26 Further, while the parties dispute whether Vitol still employs Lucas, Plaintiffs concede that 27 Niemann left SK Energy in May 2017. (Id. at ¶ 92.) Plaintiffs’ reliance on their allegations that 1 oversaw global trading for SK Trading and to whom Niemann reported during the period in 2 question) is still employed by SK entities, is not persuasive. If these allegations were sufficient to 3 establish a significant threat of future injury, there would nearly always be standing to obtain 4 injunctive relief where the competitors remain the market. Clapper, 568 U.S at 416 (finding that 5 standing requires allegations of harm that is “certainly impending”). Even if the Court were to 6 conclude that Plaintiffs’ allegation that “Vitol and SK are known recidivist antitrust violators” was 7 plausible notwithstanding the thin supporting allegations, this would not be enough to show 8 imminent threatened antitrust activity with respect to the gasoline market in California. (CCAC at 9 ¶¶ 22, 23, 173.) In Adkins, the court found that “Facebook’s repetitive losses of users’ privacy 10 supplies a long-term need for supervision.” Adkins v. Facebook, Inc., 424 F. Supp. 3d 686, 698 11 (N.D. Cal. 2019). Here, in contrast, Plaintiffs allege prior bad acts unrelated to the conduct at 12 issue here. 13 Accordingly, Plaintiffs have failed to demonstrate standing to pursue their injunctive relief 14 claims under the Sherman Act. See Bennett v. Spear, 520 U.S. 154, 167–68 (1997) (“each element 15 of Article III standing must be supported in the same way as any other matter on which the 16 plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the 17 successive stages of the litigation.”) (internal citation and quotation marks omitted). Defendants’ 18 motion to dismiss the Sherman Act claim is granted with leave to amend. 19 C. The UCL 20 Defendants insist that Plaintiffs’ UCL claim is foreclosed by the Ninth Circuit’s recent 21 decision in Sonner v. Premier Nutrition Corp., 971 F.3d 834 (9th Cir. 2020). In Sonner, the court 22 affirmed dismissal of plaintiff’s UCL and CLRA claims because she failed to allege that she 23 lacked an adequate remedy at law. Id. at 844. The court relied on the plaintiff’s concession that 24 she sought the same sum in equitable restitution as she sought in damages, and the plaintiff’s 25 failure to “explain how the same amount of money for the exact same harm is inadequate or 26 incomplete.” Id. Plaintiffs counter that Sonner is distinguishable because it was decided at a 27 different procedural posture and it does not apply to their claim for injunctive relief. Neither 1 First, it is of no moment that Sonner was decided at a much later stage in the litigation— 2 after the plaintiff attempted to amend her complaint on the eve of trial to drop her damages claim. 3 Id. at 838. “Nothing in Sonner limits its precedential value to such circumstances.” Zaback v. 4 Kellogg Sales Co., No. 20-00268 BEN MSB, 2020 WL 6381987, at *4 (S.D. Cal. Oct. 29, 2020) 5 (collecting cases that have “applied Sonner to dismiss complaints in cases involving similar claims 6 at the more familiar early stages of litigation”). The dispositive issue in Sonner was the plaintiff’s 7 failure to plead inadequate remedies at law or explain why the remedies she requested in the 8 complaint would be inadequate. So too here. Plaintiffs do not plead that they have inadequate 9 remedies at law and instead allege that “to the extent the Court ultimately deems inadequate the 10 remedies at law that Plaintiffs request, Plaintiffs and members of the Class are entitled to 11 equitable relief such as restitution and injunctive relief pursuant to California Business and 12 Professions Code § 17203.” (CCAC at ¶ 186.) But nowhere in the complaint do Plaintiffs allege 13 that the three-fold damages they seek are inadequate or otherwise distinguish their request for 14 restitution from their request for damages. (Id. at p. 46 ¶ E.) See Sonner, 971 F.3d at 844 (finding 15 that plaintiff “must establish that she lacks an adequate remedy at law before securing equitable 16 restitution for past harm under the UCL and CLRA.”); Julian v. TTE Tech., Inc., No. 20-CV- 17 02857-EMC, 2020 WL 6743912, at *5 (N.D. Cal. Nov. 17, 2020) (dismissing where “on the face 18 of the complaint, it appears that what Plaintiffs’ claim for damages and restitution are not really 19 different”). 20 Second, “numerous courts in this circuit have applied Sonner to injunctive relief claims.” 21 In re MacBook Keyboard Litig., No. 5:18-CV-02813-EJD, 2020 WL 6047253, at *3 (N.D. Cal. 22 Oct. 13, 2020) (collecting cases); see also Huynh v. Quora, Inc., No. 5:18-CV-07597-BLF, 2020 23 WL 7495097, at *19 (N.D. Cal. Dec. 21, 2020) (same). Neither Krommenhock nor JUUL Labs 24 held otherwise; to the contrary, the courts in both cases granted the motions to dismiss. See 25 Krommenhock v. Post Foods, LLC, No. 16-CV-04958-WHO, 2020 WL 6074107, at *1 (N.D. Cal. 26 Sept. 29, 2020) (dismissing complaint to allow leave to amend to allege that the plaintiffs’ 27 remedies at law were inadequate in light of Sonner); In re JUUL Labs, Inc., Mktg., Sales 1 Oct. 23, 2020) (dismissing and granting leave to amend to “allege that [plaintiffs] remedies at law 2 are inadequate and to support their claim to equitable restitution under the UCL and FAL”). 3 Finally, Plaintiffs’ citation to a pre-Sonner case for the proposition that they are permitted 4 to plead alternative claims for relief is unavailing. Several courts have rejected this same 5 argument. See, e.g., Anderson v. Apple Inc., No. 3:20-CV-02328-WHO, 2020 WL 6710101, at *7 6 (N.D. Cal. Nov. 16, 2020) (rejecting reliance on pre-Sonner cases regarding pleading alternative 7 remedies noting that Sonner appeared to have resolved the split of authority regarding “whether 8 plaintiffs should be barred from pleading claims for equitable relief under the UCL and CLRA if 9 they have alleged a claim that would provide an adequate remedy at law.”); In re MacBook 10 Keyboard Litig., 2020 WL 6047253, at *2 (“this is not an election of remedies issue. The question 11 is not whether or when Plaintiffs are required to choose between two available inconsistent 12 remedies, it is whether equitable remedies are available to Plaintiffs at all. In other words, the 13 question is whether Plaintiffs have adequately pled their claims for equitable relief, and that 14 question is not premature on a motion to dismiss.”). 15 Plaintiffs’ UCL claim is dismissed with leave to amend to the extent they have a good faith 16 basis for alleging that they lack an adequate remedy of law. 17 D. Unjust Enrichment 18 Defendants contend that Plaintiffs’ unjust enrichment claim is also foreclosed by Sonner 19 since they have not alleged that they lack an adequate remedy at law. Defendants also insist that 20 there is not a standalone claim for unjust enrichment under California law. 21 Plaintiffs counter that the remedy they seek—nonrestitutionary disgorgement—is available 22 here. Indeed, the relief that Plaintiffs seek for their unjust enrichment claim is not the same as that 23 sought for their UCL claim. While Plaintiffs seek restitution for their UCL claim, for their unjust 24 enrichment claim Plaintiffs seek “non-restitutionary disgorgement of the financial profits that 25 Defendants obtained as a result of their unjust conduct.” (CCAC at ¶ 190.) In addition, in contrast 26 to their UCL claim, for their unjust enrichment claim Plaintiffs affirmatively allege no alternative 27 remedy at law for the claim. (Id.) Sonner is therefore distinguishable, as there, unlike here, 1 Further, nonrestitutionary disgorgement is not available under the UCL. See S. California 2 Water Co. v. Aerojet-Gen. Corp., No. CV 02-6340ABCRCX, 2003 WL 25537163, at *11 (C.D. 3 Cal. Apr. 1, 2003) (citing Korea Supply Company v. Lockheed Martin Corporation, 29 Cal.4th 4 1134, 1147 (2003)). Nonrestitutionary disgorgement is, however, a remedy for unjust enrichment 5 claims “[w]here a benefit has been received by the defendant but the plaintiff has not suffered a 6 corresponding loss or, in some cases, any loss, but nevertheless the enrichment of the defendant 7 would be unjust.” Meister v. Mensinger, 230 Cal. App. 4th 381, 398 (2014). Under these 8 circumstances, “the defendant may be under a duty to give to the plaintiff the amount by which 9 [the defendant] has been enriched. Id. (internal quotation marks and citations omitted; alteration 10 in original). 11 Defendants fail to address Plaintiffs’ claim for nonrestitutionary disgorgement, nor do they 12 make a showing as to how this claim overlaps with Plaintiffs’ damages claim. Accordingly, 13 Defendants’ motion to dismiss Plaintiffs’ claim for unjust enrichment is denied. 14 E. Statute of Limitations 15 Defendants insist that Plaintiffs’ pre-2016 claims are barred by the four-year statute of 16 limitations on antitrust and UCL claims.3 Because the Court has dismissed Plaintiffs’ Sherman 17 Act and UCL claims, the Court only considers whether Plaintiffs’ Cartwright Act claim is time- 18 barred. As statute of limitations is an affirmative defense, Defendants bear the burden that based 19 on the CCAC’s allegations, the Cartwright Act is untimely. Defendants have met that burden as to 20 all Plaintiffs and class members who purchased gas four years prior to the filing of the complaint. 21 Plaintiffs do not contend otherwise. 22 The burden thus moves to Plaintiffs to show that tolling of some sort saves the pre-2016 23 claims. Plaintiffs insist that their pre-2016 claims are subject to tolling under the discovery rule, 24 the doctrine of fraudulent concealment, and by virtue of express tolling agreements between the 25 AG and Defendants.4 (CCAC at ¶ 168.) 26 3 Defendants do not move to dismiss Plaintiffs’ unjust enrichment claim as untimely. (Dkt. No. 27 224 at 49 (“Plaintiffs’ claims under the Sherman Act, the Cartwright Act, and the UCL are all 1 1) The Discovery Rule 2 The discovery rule “postpones accrual of a cause of action until the plaintiff discovers, or 3 has reason to discover, the cause of action.” Aryeh v. Canon Bus. Sols., Inc., 55 Cal. 4th 1185, 4 1192 (2013) (internal citation omitted). “[A] plaintiff whose complaint shows on its face that his 5 claim would be barred without the benefit of the discovery rule must specifically plead facts to 6 show (1) the time and manner of discovery and (2) the inability to have made earlier discovery 7 despite reasonable diligence.” Beasley v. Conagra Brands, Inc., 374 F. Supp. 3d 869, 883 (N.D. 8 Cal. 2019) (internal citation omitted) (quoting McKelvey v. Boeing N. Am., Inc., 74 Cal. App. 4th 9 151, 160 (1999)). 10 Plaintiffs allege that they discovered the basis for their claims when the AG filed its 11 complaint in state court. (CCAC at ¶ 159.) “Before then, Plaintiffs and the Class had neither 12 actual nor constructive knowledge, and no reason to believe, that they paid prices for gasoline that 13 were affected by Defendants’ illegal conduct, and thus until then had no duty to investigate the 14 claims set forth in this Consolidated Complaint.” (Id.) Plaintiff Pacific Wine Distributors, Inc., 15 filed its complaint in this Court two days after the AG’s complaint was filed in state court. 16 Plaintiffs have thus alleged when they discovered the basis for the claim, that they could not have 17 discovered it earlier, and that they acted diligently upon discovery of the basis for their claims by 18 filing this action two days later. 19 Defendants do not dispute that Plaintiffs have sufficiently pled delayed discovery; instead, 20 they insist that the discovery rule does not apply to the Cartwright Act claim because the time runs 21 from the injury rather than the discovery. As support Defendants rely exclusively on Ryan v. 22 Microsoft Corp., No. 14-CV-04634-LHK, 2015 WL 1738352, at *16 (N.D. Cal. Apr. 10, 2015).5 23 Ryan reasoned that “the default accrual rule is the last element rule, where a claim accrues when 24 [it] is complete with all of its elements’—those elements being wrongdoing, harm, and causation.” 25 Id. at *15. The court then concluded that the plaintiffs had not identified “any circumstances 26 Court has dismissed the Sherman Act claim and only California claims remain. 27 5 Defendants fault Plaintiffs for not refuting the “body of cases establishing that the discovery rule 1 warranting a deviation from the default common law last element accrual rule,” and therefore the 2 discovery rule did not apply. Id. 3 Plaintiffs respond by citing a different district court case: In re California Bail Bond 4 Antitrust Litig., No. 19-CV-00717-JST, 2020 WL 3041316 (N.D. Cal. Apr. 13, 2020). The Bail 5 Bond court concluded that the defendants had not met their burden of proving as a matter of law 6 that the discovery rule did not apply in light of the California Supreme Court’s decision in Aryeh 7 v. Canon Bus. Sols., Inc., 55 Cal. 4th 1185, 1195 (2013). In Aryeh, the California Supreme Court 8 rejected the notion that judicial interpretations of the Sherman Act—including those barring 9 delayed discovery based on ignorance—apply fully to Cartwright Act claims. Aryeh, 55 Cal. 4th 10 at 1195 (holding that “[i]nterpretations of federal antitrust law are at most instructive, not 11 conclusive, when construing the Cartwright Act, given that the Cartwright Act was modeled not 12 on federal antitrust statutes but instead on statutes enacted by California's sister states around the 13 turn of the 20th century.”). Instead, it held that when determining whether equitable exceptions to 14 the last element accrual rule apply to a claim, courts should look to the particular theory of the 15 claim to determine whether the discovery tolling rule should apply. Id. at 1196. 16 As Defendants’ motion is based on its bald assertion that the discovery tolling rule 17 categorically does not apply to Cartwright claims—and assertion belied by Aryeh— their motion 18 to dismiss on this ground is denied without prejudice. 19 2) Fraudulent Concealment 20 “The doctrine of fraudulent concealment tolls the statute of limitations where a defendant, 21 through deceptive conduct, has caused a claim to grow stale.” Aryeh, 55 Cal. 4th at 875. The 22 limitations period is tolled “only for that period during which the claim is undiscovered by 23 plaintiff or until such time as plaintiff, by the exercise of reasonable diligence, should have 24 discovered it.” MGA Entm’t, Inc. v. Mattel, Inc., 41 Cal. App. 5th 554, 561 (2019) (quoting 25 Bernson v. Browning-Ferris Industries, 7 Cal. 4th 926, 931 (1994)). “The doctrine of fraudulent 26 concealment of the cause of action ... has an effect similar to the statutory rule of delayed accrual 27 and the same pleading and proof is required ..., i.e., the plaintiff must show (a) the substantive 1 v. Schmidt, 195 Cal. App. 4th 1519, 1533 (2011), as modified (June 15, 2011) (internal citation 2 and quotation marks omitted). 3 As noted above, Defendants do not dispute that Plaintiffs have adequately alleged delayed 4 discovery. Given this, and the Court’s conclusion that Plaintiffs have plausibly alleged a 5 Cartwright Act claim based on a price fixing conspiracy, Plaintiffs have adequately pled grounds 6 for fraudulent concealment. 7 3) AG Tolling Agreements 8 Plaintiffs also invoke the tolling agreements that Defendants signed with the California 9 Attorney General in the state court action. (CCAC ¶ 167.) Defendants counter that Plaintiffs as 10 non-parties to the agreements cannot invoke the agreements’ tolling provision. Indeed, the 11 agreements state that they apply “to any claims that might be brought by the CAG related to the 12 subject matter of the INVESTIGATION.” (Dkt. No. 225-5 at 1; Dkt. No. 225-6 at 1.6) Plaintiffs 13 nevertheless insist that they can enforce the agreements as third-party beneficiaries given the 14 nature of the parens patrie action. Even if this were the case, it would only toll the claims of two 15 of the Plaintiffs—Justin Lardinois and Asante Cleveland—because a parens patrie action cannot 16 be brought on behalf of business or non-California residents. (CCAC at ¶¶ 19, 20.) However, 17 given the Court’s conclusion with respect to the discovery rule and fraudulent concealment 18 doctrine, the Court need not finally resolve this issue as there are other bases for tolling Plaintiffs’ 19 claims at this stage of the litigation. 20 Accordingly, Defendants’ motion to dismiss Plaintiffs’ claims as barred by the statute of 21 limitations is denied. 22 *** 23 As set forth above, Defendants’ motion to dismiss is granted in part and denied in part. 24
25 6 The Court takes judicial notice of the tolling agreements under the incorporation-by-reference doctrine. Under this doctrine, “[a] court may consider evidence on which the complaint 26 necessarily relies if: (1) the complaint refers to the document; (2) the document is central to the plaintiff’s claim; and (3) no party questions the authenticity of the copy attached to the 12(b)(6) 27 motion.” Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006) (internal quotation marks and 1 The motion is denied as to the Cartwright Act and unjust enrichment claims, but granted as to the 2 Sherman Act and UCL claims. Further, Plaintiffs have adequately pled equitable tolling based on 3 the delayed discovery rule and fraudulent concealment doctrine. 4 II. MOTION TO STAY 5 Defendants’ motion to stay is two-fold: they seek stays (1) under the Colorado River 6 abstention doctrine, or alternatively, (2) under the Court’s inherent authority to manage its own 7 docket. The Court begins with Colorado River abstention. 8 A. Colorado River Abstention 9 The Colorado River doctrine represents a “narrow exception to the virtually unflagging 10 obligation of the federal courts to exercise the jurisdiction given them.” Smith v. Ctr. Ariz. Water 11 Conservation Dist., 418 F.3d 1028, 1033 (9th Cir. 2005) (internal citation and quotation marks 12 omitted); see Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976)). 13 Abstention in favor of a parallel state action may be proper due to considerations of “[w]ise 14 judicial administration giving regard to conservation of judicial resources and comprehensive 15 disposition of litigation.” Nakash v. Marciano, 882 F.2d 1411, 1415 (9th Cir. 1989) (citation 16 omitted). Such cases are “rare,” “limited,” and “exceptional,” with “only the clearest of 17 justifications” supporting abstention. R.R. St. & Co. v. Transp. Ins. Co., 656 F.3d 966, 977–78 (9th 18 Cir.2011) (internal quotation marks and citation omitted). The Ninth Circuit “generally require[s] 19 a stay rather than a dismissal.” Id. at 979 n. 8. Colorado River abstention does not require “exact 20 parallelism” between the actions; instead, the actions need only be “substantially similar[.]” 21 Nakash, 882 F.2d at 1416. 22 In determining whether to stay a case pursuant to Colorado River, courts in the Ninth 23 Circuit consider eight factors:
24 (1) which court first assumed jurisdiction over any property at stake; (2) the inconvenience of the federal forum; (3) the desire to avoid 25 piecemeal litigation; (4) the order in which the forums obtained jurisdiction; (5) whether federal law or state law provides the rule of 26 decision on the merits; (6) whether the state court proceedings can adequately protect the rights of the federal litigants; (7) the desire to 27 avoid forum shopping; and (8) whether the state court proceedings 1 R.R. St. & Co., 656 F.3d at 978–79. “No one factor is necessarily determinative; a carefully 2 considered judgment taking into account both the obligation to exercise jurisdiction and the 3 combination of factors counseling against that exercise is required.” Colorado River, 424 U.S. at 4 818-19, 96. Put another way, the decision does not “rest on a mechanical checklist, but on a 5 careful balancing of the important factors as they apply in a given case, with the balance heavily 6 weighted in favor of the exercise of jurisdiction.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. 7 Corp., 460 U.S. 1, 16 (1983). Thus, courts have denied a Colorado River stay even where a 8 majority of the factors favors abstention. See, e.g., Ramirez v. Avalonbay Cmtys., Inc., No. C 14– 9 04211 WHA, 2015 WL 4396380, at *2 (N.D. Cal. July 17, 2015). 10 However, the eighth factor—whether there is “substantial doubt as to whether the state 11 proceedings will resolve the federal action precludes the granting of a stay”—is “dispositive.” 12 Intel Corp. v. Advanced Micro Devices, Inc., 12 F.3d 908, 913 (9th Cir.1993); see also Holder v. 13 Holder, 305 F.3d 854, 868 (9th Cir. 2002) (“Because there is substantial doubt that a final 14 determination in the custody proceeding will resolve all of the issues in Jeremiah’s federal Hague 15 Convention petition, we conclude that the district court abused its discretion in staying 16 proceedings.”). Any such doubt as to resolution of the federal action compels the court to deny a 17 Colorado River stay without consideration of the other factors. Intel, 12 F.3d at 913 n.7. The Ninth 18 Circuit has cautioned that the existence of a substantial doubt as to whether the state proceedings 19 will resolve the federal action generally precludes the granting of a Colorado River stay. Id. at 20 913. That is, “[a] district court may enter a Colorado River stay order only if it has ‘full 21 confidence’ that the parallel state proceeding will end the litigation.” Id. (citation omitted). 22 1) Substantial Doubt as to Whether the AG Action Will Resolve the Case 23 Defendants insist that “there is no meaningful difference between the State AG complaint 24 and the CCAC: they contain the same state law claims for relief, the same corporate defendants, 25 and heavily overlapping plaintiff classes.” (Dkt. No. 222 at 10:9-11.) Plaintiffs counter that there 26 are three critical differences which preclude a finding of substantial similarity: (1) the AG Action 27 only represents natural persons in California and this lawsuit contains claims by non-California 1 this action also includes a common law unjust enrichment claim and a claim for injunctive relief 2 under the Sherman Act, 15 U.S.C. § 1; and (3) this action also names individual defendants, not 3 named in the AG Action. 4 That the class members in each lawsuit are different defeats a finding of substantial 5 similarity. The AG Action does not and cannot seek redress for the claims of businesses or non- 6 California plaintiffs, both of which are included as named plaintiffs and in the putative class here. 7 See Mai Katy Xiong v. G4S Secure Sols. (USA) Inc., 2019 WL 3817643, at *2 (E.D. Cal. Aug. 14, 8 2019) (“That the state actions and federal action have overlapping claims and seek similar 9 statutory penalties does not mean the adjudication of the state actions will fully resolve the federal 10 action” given that the state action “class is underinclusive as to the this action”); Perez v. Nidek 11 Co., 657 F. Supp. 2d 1156, 1167 (S.D. Cal. 2009), aff’d, 711 F.3d 1109 (9th Cir. 2013) (declining 12 to stay where “plaintiffs and potential classes are different”). “The decision to invoke Colorado 13 River necessarily contemplates that the federal court will have nothing further to do in resolving 14 any substantive part of the case, whether it stays or dismisses.” Holder, 305 F.3d at 868 (quoting 15 Moses H. Cone, 460 U.S. at 28) (emphasis added). The Court cannot reach that conclusion given 16 that the state action will not and cannot resolve the claims of the businesses and non-California 17 residents who are parties and putative class members in this action. 18 Further, courts routinely decline to stay federal actions where the scope of claims is 19 broader in the federal case than the state case. See, e.g., Sciortino v. Pepsico, Inc., 108 F. Supp. 3d 20 780, 815 (N.D. Cal. 2015) (declining to stay where “broader remedies” were sought in the federal 21 action); I.K. ex rel. E.K. v. Sylvan Union Sch. Dist., 681 F. Supp. 2d 1179, 1199 (E.D. Cal. 2010) 22 (finding that defendants argument that “most” of the issues in the federal complaint would be 23 resolved in the state court action was a dispositive “conce[ssion] that not all the federal issues in 24 this case will be resolved by the state court action.”) (emphasis added); In re Mattel, Inc., 588 F. 25 Supp. 2d 1111, 1120 (C.D. Cal. 2008) (denying motion to state where “[o]nly one part of one 26 cause of action is duplicated in the Attorney General’s case”). Defendants do not argue otherwise, 27 and instead, insist that the federal claim here lacks merit. While the Court has dismissed the 1 enrichment claim—a claim not pled in the state action. 2 Because “the existence of a substantial doubt as to whether the state proceedings will 3 resolve the federal action precludes the granting of a [Colorado River] stay,” is dispositive, the 4 Court’s analysis need proceed no further. Intel Corp, 12 F.3d at 913. Defendants’ motion for a 5 stay under Colorado River is denied. 6 B. Stay Based on the Court’s Inherent Authority 7 Defendants also request that the Court stay the action based on its inherent authority. 8 “[T]he power to stay proceedings is incidental to the power inherent in every court to control the 9 disposition of the causes on its docket with economy of time and effort for itself, for counsel, and 10 for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). In deciding whether to grant a stay, 11 a court may weigh the following: “the possible damage which may result from the granting of a 12 stay; the hardship or inequity which a party may suffer in being required to go forward; and the 13 orderly course of justice measured in terms of the simplifying or complicating of issues, proof, and 14 questions of law which could be expected to result from a stay.” CMAX, Inc. v. Hall, 300 F.2d 15 265, 268 (9th Cir. 1962) (citing Landis, 299 U.S. at 254-255). 16 While the Ninth Circuit has not addressed the issue, several district courts and Courts of 17 Appeals outside the Ninth Circuit have concluded that where the court finds that a stay is not 18 warranted under Colorado River, Landis does not provide an alternative basis for a stay. See 19 AIIRAM LLC v. KB Home, No. 19-CV-00269-LHK, 2019 WL 3779185, at *6 (N.D. Cal. Aug. 12, 20 2019) (collecting cases). “To permit a district court to rely solely on its inherent power to control 21 its docket, when the effect of the district court’s order is to accomplish the same result 22 contemplated by Colorado River, would allow a court to bypass the rigorous test set out by the 23 Supreme Court.” Cottrell v. Duke, 737 F.3d 1238, 1249 (8th Cir. 2013). 24 Defendants’ reliance on United Specialty Ins. Co. v. Bani Auto Grp., Inc., No. 18-CV- 25 01649-BLF, 2018 WL 5291992, at *7 (N.D. Cal. Oct. 23, 2018), does not persuade the Court 26 otherwise. The Bani court did not directly consider the incongruence of granting a stay under 27 Landis while finding a stay under Colorado River inappropriate, and more significantly, did not 1 insurance coverage action and state action that was the source of the coverage dispute. Likewise, 2 Defendants’ reliance on Bradshaw v. City of Los Angeles, No. 2:19-CV-06661-VAP-JC, 2020 WL 3 2065007, at *4 (C.D. Cal. Mar. 23, 2020), is misplaced as it and the cases it cites were considering 4 || whether a parties’ request for a stay should be analyzed under Colorado River or Landis—not 5 whether a stay under Landis was proper notwithstanding a finding that a stay under Colorado 6 || River was not. 7 Given the “exceedingly narrow” bounds of the Colorado River doctrine, Landis does not 8 || provide an alternative to a Colorado River stay here. Defendants’ motion for a stay is denied. 9 CONCLUSION 10 For the reasons stated above, the Court GRANTS IN PART and DENIES IN PART 11 Defendants’ motion to dismiss. Plaintiffs’ Sherman Act and UCL claims are dismissed with leave 12 || to amend to the extent Plaintiffs have a good faith basis for doing so consistent with this Order. 5 13 || The motion is otherwise denied. Defendants’ motion to stay is also DENIED. 14 Plaintiffs’ amended complaint, if any, is due in 30 days. If Plaintiffs elect not to amend 3 15 their complaint, they shall file a statement on the docket to this effect thereby triggering a 16 || Defendants’ deadline to answer the complaint. 3 17 In light of this Order, the parties’ joint discovery letter brief regarding Plaintiffs’ Rule 45 S 18 subpoena to OPIS is denied as moot. (Dkt. No. 280.) The stay of discovery if lifted with respect 19 || to the claims that survive. 20 The Court sets a further Case Management Conference for June 3, 2021 at 1:30 p.m. An 21 updated Case Management Conference statement is due a week before. 22 This Order disposes of Docket Nos. 222, 224, and 280. 23 IT IS SO ORDERED. 24 Dated: March 29, 2021 fog Suttloly 26 Mt JACQUELINE SCOTT CORLE 27 United States Magistrate Judge 28