In re German Auto. Mfrs. Antitrust Litig.

392 F. Supp. 3d 1059
CourtDistrict Court, N.D. California
DecidedJune 17, 2019
DocketMDL No. 2796 CRB (JSC)
StatusPublished
Cited by2 cases

This text of 392 F. Supp. 3d 1059 (In re German Auto. Mfrs. Antitrust Litig.) is published on Counsel Stack Legal Research, covering District Court, N.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re German Auto. Mfrs. Antitrust Litig., 392 F. Supp. 3d 1059 (N.D. Cal. 2019).

Opinion

CHARLES R. BREYER, United States District Judge

Consumers and auto dealers have filed two related consolidated class actions against the five leading German car manufacturers-Audi AG, BMW AG, Daimler AG, Porsche AG, and Volkswagen AG ("VW AG")-and their American subsidiaries. Plaintiffs allege that since the mid-1990s, Defendants have colluded to restrain trade in ways that constitute per se violations of the Sherman Act and that violate various state laws. Defendants have moved to dismiss the claims. Finding the allegations currently insufficient to state a claim, the Court GRANTS Defendants' joint motion to dismiss, with leave to amend. The Court DENIES the German Defendants' separate motions to dismiss for lack of personal jurisdiction.

*1062I. BACKGROUND1

As alleged, U.S. consumers and auto dealers have been overpaying for Audi, BMW, Mercedes, Porsche, and Volkswagen cars for over twenty years. They have paid premiums for "German engineering," a phrase that is synonymous with innovation and exceptional performance, but they have received something less.

Plaintiffs claim that in the mid-1990s, Defendants started intentionally slowing down the pace of innovation. (IPP ¶¶ 123, 139, 183; DPP ¶¶ 2, 76.) Doing so resulted in their cars having "fewer features and reduced performance." (IPP ¶ 5.) Defendants took this approach, Plaintiffs maintain, in order to "reduce production costs" and "avoid[ ] price and technology wars." (DPP ¶¶ 76, 81; see also IPP ¶ 92.) All the while they continued to charge premiums for cutting edge technology and engineering. (IPP ¶¶ 6, 92; DPP ¶¶ 68-69, 76.)

At least 200 employees are alleged to have participated in the agreement to reduce innovation, meeting for decades in dozens of working groups and at trade association events. (IPP ¶¶ 123, 129, 196; DPP ¶¶ 77-79.) Since 2011 alone, at least 1,000 meetings in furtherance of the agreement have purportedly taken place. (IPP ¶ 123; DPP ¶ 77.)

All sorts of vehicle components are claimed to have been covered by the agreement (e.g, brake controls, chassis, electronics, gas and diesel engines, clutches, transmissions, exhaust systems, and drivetrains (IPP ¶¶ 123, 131; DPP ¶ 86)), although only two examples are explained in any detail in the complaints.

Soft-top convertibles. Minutes from a meeting in Bad Kissingen, Germany document that Defendants discussed the cost, safety, weight, and technical risks of soft-top convertibles and then collectively agreed that their soft-top convertible roofs should only be allowed to open and close at vehicle speeds below 50 kilometers (or 31 miles) per hour. (IPP ¶ 138.) In memorializing this agreement, Defendants allegedly noted that there should be "[n]o arms race when it comes to speeds for [soft-top convertibles]." (Id. (alterations in complaint).)

AdBlue tanks. As explained in the complaints, AdBlue is a substance that is used to breakdown emissions from diesel engines into less harmful compounds. (IPP ¶ 145; DPP ¶ 102.) It became popular in the early 2000s when Defendants started marketing their diesel cars as fuel-efficient alternatives to electric and hybrid cars. (IPP ¶¶ 144-45.) With the use of AdBlue burgeoning, Defendants reportedly determined that they could save up to €80 per car by agreeing on a standard tank size. (IPP ¶ 150.) They first agreed, in or around 2006, to only use AdBlue tanks that were between 17 and 23 liters. (IPP ¶¶ 149, 151.) Several years later they shifted to smaller, 8-liter tanks after their marketing departments touted the cost savings of smaller tanks and the benefits of having more space in the cars for passengers, cargo, and equipment. (IPP ¶¶ 148, 152.) Eight-liter tanks were then ditched in favor of 16-liter tanks after Defendants learned in 2010 that new U.S. regulations would soon require tanks to contain enough AdBlue to last for 10,000 miles before needing to be refilled. (IPP ¶¶ 153-55.) Even the 16-liter tanks were not large enough to meet U.S. standards, according to the IPP complaint. (IPP ¶ 153.) But Plaintiffs maintain that Defendants agreed to use 16-liter tanks despite knowing this.

*1063Documents purportedly reflect that VW AG encouraged the others to stick with the 16-liter tanks despite regulatory concerns (IPP ¶ 159) and Audi AG cautioned against a potential "arms race with regard to tank sizes," which "we should continue to avoid at all costs" (IPP ¶ 160).

The European investigation. The above allegations, like most others in the complaints, are based largely on articles that were published in the German news magazine Der Spiegel. In the summer of 2017, Der Spiegel reported that the European Commission's competition department ("ECC") and Germany's Federal Cartel Office were investigating "allegations of an antitrust cartel among the Defendants." (IPP ¶¶ 119-20.) As Plaintiffs note, ECC investigations only proceed when there are "reasonable indications of a likely infringement" of competition laws. (IPP ¶ 112 (quoting Antitrust Manual of Procedures, EUROPA.EU, 102-109 (March 2012), Opening of Proceedings, Conditions for Opening of Proceedings ).)

VW AG and Daimler AG reportedly submitted proffers to the ECC as part of the agency's leniency program. (IPP ¶¶ 113-14, 121; DPP ¶¶ 111-12.) In VW AG's proffer, it admitted (1) that "Daimler, BMW, Volkswagen, Audi and Porsche made agreements 'for many years, at least since the 1990s, up to today' about the development of their vehicles, costs, suppliers and markets;" (2) that Defendants "discussed vehicle development, brakes, petrol and diesel engines, clutches and transmissions as well as exhaust treatment systems;" (3) that there had been an "exchange of internal, competitively sensitive technical data;" (4) that Defendants had jointly established "technical standards" and agreed to use "only certain technical solutions" in new cars; and (5) that "behavior in violation of cartel law" may have occurred. (IPP ¶ 124.)

Plaintiffs assert that by seeking leniency from the ECC, VW AG and Daimler AG effectively "admitted the existence of a secret cartel." (IPP ¶ 118; see also id. ¶ 115 ("Leniency is not available for lesser anti-competitive infringements, nor is it available to a company that claims it did not participate in a cartel." (citing Commission Notice on Immunity from Fines and Reduction of Fines in Cartel Cases , OFFICIAL JOURNAL OF THE EUROPEAN UNION (Aug. 12, 2006), Introduction ¶ 1)).) In October 2017, following VW AG's and Daimler AG's proffers and in connection with the ECC's investigation, the ECC conducted "dawn raids" in Germany at several of Defendants' headquarters, including the headquarters of BMW AG, Daimler AG, and VW AG. (IPP ¶ 120; see also DPP ¶ 114.)

The investigation is narrowed. In September 2018, after Plaintiffs had filed their complaints in this action, the ECC announced in a press release that the scope of its investigation was changing.2 The ECC explained in the press release that its investigation had not unearthed a vehicle-wide conspiracy to restrain technological development, but that it would be opening an in-depth investigation into one issue: whether Defendants "colluded, in breach of EU antitrust rules, to avoid competition on the development and roll-out of technology to clean the emissions of petrol and diesel passenger cars." (Dkt. No.

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392 F. Supp. 3d 1059, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-german-auto-mfrs-antitrust-litig-cand-2019.