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CLASS ACTION COMPLAINT
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FRANCIS M. GREGOREK (144785) [email protected] BETSY C. MANIFOLD (182450) [email protected] RACHELE R. RICKERT (190634) [email protected] MARISA C. LIVESARY (223247) [email protected] WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP 750 B Street, Suite 2770 San Diego, CA 92101 Telephone: 619/239-4599 Facsimile: 619/234-4599 MARY JANE FAIT [email protected] PATRICK H. MORAN (270881) [email protected] WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLC 55 West Monroe Street, Suite 1111 Chicago, IL 60603 Attorney for Plaintiff David Schroeder
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA
DAVID SCHROEDER, on his own behalf and on behalf of all others similarly situated, Plaintiff, v. NIPPON YUSEN KABUSHIKI KAISHA; NYK LINE (NORTH AMERICA) INC.; EUKOR CAR CARRIERS, INC.; COMPANIA SUD AMERICANA DE VAPORES, S.A.; KAWASAKI KISEN KAISHA, LTD.; ‘K’ LINE AMERICA, INC.; MITSUI O.S.K. LINES, LTD.; MITSUI O.S.K. BULK SHIPPING (USA), INC.; NISSAN MOTOR CAR CARRIER CO., LTD.; WORLD TRANSPORT CO., LTD.; WORLD LOGISTICS SERVICE (U.S.A.), INC.;
) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
Case No. CLASS ACTION COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF FOR VIOLATIONS OF FEDERAL ANTITRUST LAWS AND STATE OF CALIFORNIA UNFAIR COMPETITION LAWS DEMAND FOR JURY TRIAL
'13CV1319 DHBH
Case 3:13-cv-01319-H-DHB Document 1 Filed 06/06/13 Page 1 of 35Case MDL No. 2471 Document 1-8 Filed 06/13/13 Page 1 of 37
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TOYOFUJI SHIPPING CO., LTD.; WALLENIUS LINES, AB; WILH. WILHEMSEN HOLDING, ASA; WILH. WILHELMSEN, ASA; WALLENIUS WILHELMSEN LOGISTICS AMERICAS, LLC; WWL VEHICLE SERVICES AMERICAS INC.; AMERICAN SHIPPING AND LOGISTICS INC.; and AMERICAN AUTO LOGISTICS, INC., Defendants.
) ) ) ) ) ) ) ) ) ) ) )
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CLASS ACTION COMPLAINT
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Plaintiff David Schroeder (“Plaintiff”), for his complaint, allege upon
personal knowledge as to himself and his own actions, and upon information and
belief, including the investigation of counsel, as follows: NATURE OF ACTION
Summary of Material Fact
1. This is an antitrust class action pursuant to section 1 of the Sherman
Act, 15 U.S.C. §§ 1-7, and a class action brought pursuant to the laws of California
brought by Plaintiff, on his own behalf and on behalf of classes of persons and
entities in California who indirectly purchased from any Defendant or current or
former subsidiary or affiliate, vehicle carrier services for personal use (not resale),
incorporated into the price of the a new vehicle purchased or leased during the
from and including January 2008 through such time as the anticompetitive effects
of Defendants’ conduct ceased (the “Class Period”).
2. Defendants are automotive carriers who transport large numbers of
cars and trucks including agriculture and construction equipment vehicles
(collectively, “Vehicles”) using specialized cargo vessels for transport across water
(“Vehicle Carriers”). Vehicle Carriers use a specialized cargo ship that has the
capacity to set a ramp at dockside, bow and/or stern, and roll on and off most types
of wheeled vehicles. Within the shipping industry, such cargo ships are referred to
as a Roll-on/Roll-off Cargo Vessel or a “RORO or ro-ros” and are used to carry
Vehicles from port to port. “Vehicle Carrier Services” refers to the paid
transportation of Vehicles by RORO. Defendants are: Compania Sud Americana
De Vapores S.A. (“CSAV”); EUKOR Car Carriers, Inc., and American Shipping
and Logistics Inc., (together hereafter “ECC”); Kawasaki Kisen Kaisha, Ltd. (“‘K’
Line”); ‘K’ Line America, Inc. (“‘K’ Line America”); Mitsui O.S.K. Lines, Ltd.
and Mitsui O.S.K. Bulk Shipping (USA), Inc., (together “MOL”); Nissan Motor
Car Carrier Co., Ltd., World Transport Co., Ltd., and World Logistics Service
(U.S.A.), Inc. (collectively hereafter “Nissan MCC”); Nippon Yusen Kabushiki
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CLASS ACTION COMPLAINT
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Kaisha (“Nippon Line”); NYK Line (North America), Inc. (“Nippon Line NA”);
Toyofuji Shipping Co., Ltd. (“Toyofuji”); Wallenius Wilhelmsen Logistics AS
(“WWL”); Wilh. Wilhelmsen Holding, ASA (“WW ASA”); Wallenius
Wilhelmsen Logistics America, LLC and WWL Vehicle Services Americas Inc.
(together “WWL America”); Wallenius Lines, AB (“Wallenius”); and (all as
defined below, and collectively the “Defendants”).
3. The aforementioned Defendants provide, market, and/or sell Vehicle
Carrier Services in California. These providers of Vehicle Carrier Services
globally and in California control over 70% of Vehicle Carrier Services market and
have engaged in a five year-long conspiracy to fix, raise, maintain and/or stabilize
Vehicle Carrier Services prices, and allocate the market and customers in
California for Vehicle Carrier Services.
4. On September 12, 2012, the Japan Fair Trade Commission (“JFTC”)
began investigating approximately ten Vehicle Carriers on suspicion of forming a
global cartel to raise the prices of shipping overseas. It has been reported that the
United States Department of Justice’s Antitrust Division (“DOJ”) is investigating
unlawful, anticompetitive conduct amid allegations that Vehicle Carriers have
colluded on prices they charged auto exporters and allocated orders among
themselves despite pressure to cut prices by automakers whose profit margin have
been shrinking since the 2008 global financial crisis. Summary of Claims
5. Defendants and their co-conspirators colluded and conspired to
suppress and eliminate competition in the Vehicle Carrier Services market by
agreeing to fix, stabilize and maintain the prices of, Vehicle Carrier Services in
California. The combination and conspiracy engaged in by the Defendants and
their co-conspirators resulted in unreasonable restraint of interstate and foreign
trade and commerce in violation of the Sherman Act, 15 U.S.C. §§ 1-7 and
California Unfair Competition statutes.
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6. As a direct result of the anticompetitive and unlawful conduct alleged
herein, Plaintiff and the Class paid artificially inflated prices for Vehicle Carrier
Services incorporated into the price of a new imported Vehicles purchased or
leased in California during the Class Period, and have thereby suffered antitrust
injury to their business or property. PARTIES
Plaintiff 7. Plaintiff David Schroeder is a California resident who purchased
Vehicle Carrier Services indirectly from one or more Defendants.
Defendants 8. Defendant CSAV is a Chilean company. CSAV, directly and/or
through its subsidiaries provided, marketed and/or sold Vehicle Carrier Services
throughout California, including in this District, during the Class Period.
9. Defendant ECC is a South Korean company. ECC directly and/or
through its subsidiaries provided, marketed and/or sold Vehicle Carrier Services
throughout California, including in this District, during the Class Period. ECC is a
joint venture between Wilh. Wilhelmsen ASA, Wallenius, Hyundai Motor
Company and Kia Motors Corporation.
10. Defendant WW ASA is a Norwegian company. WW ASA, directly
and/or through its subsidiaries, provided, marketed and/or sold Vehicle Carrier
Services throughout California, including in this District, during the Class Period.
11. Defendant WWL is a Norwegian company. WWL, directly and/or
through its subsidiaries, provided, marketed and/or sold Vehicle Carrier Services
throughout California, including in this District, during the Class Period.
12. Defendant Wallenius Lines AB is a Swedish Company. Wallenius
Lines AB, directly and/or through its subsidiaries, provided, marketed and/or sold
Vehicle Carrier Services throughout California, including in this District, during
the Class Period.
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13. Defendant American Shipping and Logistics group (“ASL”) consists
of several companies, all of which are established on a joint venture basis between
Wilh. Wilhelmsen ASA and Wallenius. All companies in the ASL group are
headquartered in the U.S. and consist of liner service operating companies, ship
owning companies, and logistics services companies. The primary operating
companies in the ASL Group are:
a. American Roll-on Roll-off Carrier, LLC (ARC) is the largest U.S.
Flag ro-ro carrier and the third largest U.S. Flag carrier overall in
international trade. ARC is a U.S. based company owned 50/50 by
Wilh. Wilhelmsen ASA and Wallenius. ARC is the vessel-operating
company in ASL Group, and provides ro-ro liner services in the US -
international trades.
b. Defendant American Auto Logistics, LP (AAL) delivers total door-to-
door logistics solution services, and is the contract service provider to
the U.S. Government under the Global POV Contract . Under this
program, AAL via its global network, transports vehicles and provides
POV storage for military and U.S. government personnel stationed
abroad. It is a resident of California.
14. Defendant Wallienius Wilhemsen Logistics America, LLC is a joint
venture between Wilh. Wilhelmsen ASA and Wallenius established in 1999 and is
a resident of New Jersey. It is an operating company within both the shipping
segment and the logistics segment. It operates most of the Wilh. Wilhelmsen
ASA’s and Wallenius’ owned vessels. The company provides global transportation
services for the automotive, agricultural, mining and construction equipment
industries and its services consist of supply chain management, ocean
transportation, terminal services, inland distribution and technical services.
Wallenius Wilhelmsen Logistics is the contracting party in customer contracts with
industrial manufacturers for cars, agricultural machinery etc.
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15. Defendant WW Holding is a Norwegian Company. WW Holding,
directly and/or through its subsidiaries, provided, marketed and/or sold Vehicle
Carrier Services throughout California, including in this District, during the Class
Period. .
16. Defendant ‘K’ Line is a Japanese company. “K” Line directly and/or
through its subsidiaries, marketed and/or sold “Vehicle Carrier Services”
throughout California, including in this District, during the Class Period.
17. Defendant ‘K’ Line America is a wholly owned subsidiary of ‘K’
Line and a resident of New Jersey. ‘K’ Line America provided, marketed and/or
sold “Vehicle Carrier Services” throughout California, including in this District,
during the Class Period.
18. Defendant Mitsui O.S.K. Lines is a Japanese company. It and its
wholly owned subsidiary Defendant Mitsui O.S.K. Bulk Shipping (USA), Inc., a
resident of New Jersey, together directly and/or through their subsidiaries,
provided, marketed and/or sold Vehicle Carrier Services throughout California,
including in this District, during the Class Period.
19. Defendant Nissan Motor Car Carrier Co., Ltd. is a Japanese company.
that directly and/or through its subsidiaries, provided, marketed and/or sold
Vehicle Carrier Services throughout California, including in this District, during
the Class Period.
20. Defendant World Transport Co., Ltd., is a Japan company who serves
as the transporation sales agency business on behalf of Def. Nissan Motor Car
Carrier Co., Ltd., that directly and/or through one or more of its subsidiaries
provided, marketed and/or sold Vehicle Carrier Services throughout California,
including in this District, during the Class Period.
21. Defendant World Logistics Service (U.S.C.), Inc., a wholly owned
subsidiary a of World Transport Co., Ltd and thus, included at all times relevant
herein with Nissan MMC, is a resident of California. Nissan MMC directly and/or
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through their subsidiaries, provided, marketed and/or sold Vehicle Carrier Services
throughout California, including in this District, during the Class Period.
22. Defendant Nippon Line is a Japan company. Nippon Line provided,
marketed and/or sold Vehicle Carrier Services throughout California, including in
this District, during the Class Period.
23. Defendant Nippon Line America is a wholly owned subsidiary of
Nippon Line and a resident of New Jersey. Nippon Line America provided,
marketed and/or sold Vehicle Carrier Services throughout California, including in
this District, during the Class Period.
24. Defendant Toyofuji is a Japanese company. Toyofuji, directly and/or
through its subsidiaries, marketed and/or sold Vehicle Carrier Services throughout
California, including in this District, during the Class Period.
JURISDICTION AND VENUE
25. This Court has federal question jurisdiction pursuant to the Sherman
Act, the Clayton Act, 15 U.S.C. §§ 15 and 26, 28 U.S.C. §§ 1331 and 1337, and it
has supplemental jurisdiction over the California state law claims pursuant to 28
U.S.C. § 1367.
26. This Court also has jurisdiction pursuant to 28 U.S.C. § 1332(d)(2)
because sufficient diversity of citizenship exists between parties in this action, the
aggregate amount in controversy exceeds $5,000,000, and there are 100 or more
Class members.
27. Venue is proper in this district pursuant to Section 12 of the Clayton
Act (15 U.S.C § 22), and 28 U.S.C. §§ 1391 (b), (c), and (d), because a substantial
part of the events giving rise to Plaintiff’s claims occurred in this District, a
substantial portion of the affected interstate trade and commerce discussed below
has been carried out in this District, and one or more of the Defendants, are
licensed to do business in, are doing business in, had agents in, or are found or
transact business in California and this District.
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28. This Court has in personam jurisdiction over the Defendants because
each, either directly or through the ownership and/or control of its subsidiaries,
inter alia: transacted business in the United States, including in this District;
directly or indirectly sold or marketed Vehicle Carrier Services throughout
California, including in this District; had substantial aggregate contacts with the
United States as a whole, including in this District; or were engaged in an illegal
price-fixing conspiracy that was directed at, and had a direct, substantial,
reasonably foreseeable and intended effect of causing injury to, the business or
property of persons and entities residing in, located in, or doing business
throughout California, including in this District. The Defendants also conduct
business in California, including in this District, and they have purposefully
availed themselves of the laws of the United States.
29. The Defendants’ conspiracy and unlawful conduct described herein
adversely affected persons and entities in California who purchased cars for
personal use and not for resale, including Plaintiff and the Class. CLASS ACTION ALLEGATIONS
30. Plaintiff brings this action on behalf of himself and as a class action
under Rule 23(a), (b)(2) and (b)(3) of the Federal Rules of Civil Procedure seeking
damages and equitable and injunctive relief on behalf of the following class (the
“Class”):
All persons and entities in California who indirectly purchased, from any Defendant or any current or former subsidiary or affiliate thereof, or any co-conspirator, Vehicle Carrier Services for personal use and not for resale, incorporated into the price of a new Vehicle purchased or leased during the Class Period.
31. Excluded from the Class are Defendants, their parent companies,
subsidiaries and affiliates, any co-conspirators, federal governmental entities and
instrumentalities of the federal government, states and their subdivisions, agencies
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and instrumentalities, and persons who purchased Vehicle Carrier Services
directly.
32. In the last three years, over 4.5 million new cars and trucks were sold
by new car dealerships in California and approximately 70% of those cars were
manufactured by foreign car manufacturers (BMW, VW, Hyundai/Kia, Nissan,
Honda and Toyota). A substantial number of these foreign new cars were
imported into the United States using Vehicle Carrier Services. While Plaintiff
does not know the exact number of the members of the Class, Plaintiff believes
there are (at least) thousands of members in the Class.
33. Common questions of law and fact exist as to all members of the
Class. This is particularly true given the nature of Defendants’ conspiracy, which
was generally applicable to all members of the Class, thereby making appropriate
relief with respect to the Class as a whole. Such questions of law and fact common
to the Class include, but are not limited to:
(a) Whether the Defendants and their co-conspirators engaged in a
combination and conspiracy among themselves to fix, raise, maintain
or stabilize the prices of Vehicle Carrier Services sold in the United
States;
(b) The identity of the participants of the alleged conspiracy;
(c) The duration of the alleged conspiracy and the acts carried out
by Defendants and their co-conspirators in furtherance of the
conspiracy;
(d) Whether the alleged conspiracy violated the Sherman Act, as
alleged in the First Claim for Relief;
(e) Whether the alleged conspiracy violated California state
statutes, as alleged in the Second and Third Claims for Relief;
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(f) Whether the conduct of the Defendants and their co-
conspirators, as alleged in this Complaint, caused injury to the
business or property of Plaintiff and the members of the Class;
(g) The effect of the alleged conspiracy on the prices of Vehicle
Carrier Services sold in California during the Class Period;
(h) Whether Plaintiff and members of the Class had any reason to
know or suspect the conspiracy, or any means to discover the
conspiracy;
(i) Whether the Defendants and their co-conspirators fraudulently
concealed the conspiracy’s existence from the Plaintiff and the
members of the Class; and
(j) The appropriate relief for the Class.
34. Plaintiff’s claims are typical of the claims of the members of the
Class, and Plaintiff will fairly and adequately protect the interests of the Class.
Plaintiff and all members of the Class are similarly affected by Defendants’
wrongful conduct in that they paid artificially inflated prices for Vehicle Carrier
Services purchased indirectly from the Defendants and/or their co-conspirators.
35. Plaintiff’s claims arise out of the same common course of conduct
giving rise to the claims of the other members of the Class. Plaintiff’s interests are
coincident with, and not antagonistic to, those of the other members of the Class.
Plaintiff is represented by counsel who are competent and experienced in the
prosecution of antitrust and class action litigation.
36. The questions of law and fact common to the members of the Class
predominate over any questions affecting only individual members, including legal
and factual issues relating to liability and damages.
37. Class action treatment is a superior method for the fair and efficient
adjudication of the controversy, in that, among other things, such treatment will
permit a large number of similarly situated persons to prosecute their common
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claims in a single forum simultaneously, efficiently and without the unnecessary
duplication of evidence, effort and expense that numerous individual actions would
engender. The benefits of proceeding through the class mechanism, including
providing injured persons or entities with a method for obtaining redress for claims
that it might not be practicable to pursue individually, substantially outweigh any
difficulties that may arise in management of this class action.
38. The prosecution of separate actions by individual members of the
Class would create a risk of inconsistent or varying adjudications, establishing
incompatible standards of conduct for Defendants.
FACTUAL ALLEGATIONS RORO Ships and Market for Vehicle Carrier Services
39. RO/RO ships are vessels designed to carry wheeled cargo, such as
automobiles, trucks, and other wheeled vehicles that can be driven on and off the
ship on their own wheels. This is in contrast to LOLO (Lift-on/Lift-off) vessels
which are used to load and unload cargo. RORO vessels have built-in ramps
which allow the cargo to be efficiently "rolled on" and "rolled off" the vessel when
in port. While smaller ferries that operate across rivers and other short distances
often have built-in ramps, the term RORO is reserved for larger ocean-going
vessels. The ramps and doors may be stern only, or bow and stern for quick
loading. New automobiles that are transported by ship are often moved on a large
type of RORO called a Pure Car Carrier (“PCC”) or Pure Car Truck Carrier
(“PCTC”).
40. Although shipping industry cargo is normally measured by the metric
ton, RORO cargo is typically measured in units of lanes in meters (LIMs). This is
calculated by multiplying cargo length in meters by the number of decks and by its
width in lanes (lane width differs from vessel to vessel and there are several
industry standards). A PCCs’ cargo capacity is measured in car equivalent units
(CEUs).
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41. Since 1970 the market for exporting and importing cars has increased
dramatically and the number and type of ROROs has increased. In 1973,
Defendant KKK Line built European Highway, the first PCC, which carried 4,200
automobiles. PCCs are distinctive with a box-like superstructure running the entire
length and breadth of the hull, fully enclosing the cargo. They typically have a
stern ramp and a side ramp for dual loading of thousands of vehicles. These vessels
have a usual speed of 16 knots at “eco-speed.”
42. Defendants and their co-conspirators provided Vehicle Carrier
Services to foreign car manufacturers for transportation of Vehicles sold in
California by transporting cars manufactured elsewhere for export to and sale in
California.
43. Plaintiff and members of the proposed Class purchased Vehicle
Carrier Service indirectly from one or more of the Defendants by virtue of his
purchase or lease of a new Vehicle in California during the Class Period.
44. Defendants include the five shipping lines that control about 70
percent of the global market for carrying cars.
45. The annual market for Vehicle Carrier Services in the United States is
nearly a billion dollars.
The Market Structure and Characteristics Support the Existence of a Conspiracy
46. The structure and other characteristics of the market for Vehicle
Carrier Services have made collusion among Defendants particularly attractive.
Specifically, the Vehicle Carrier Services market: (1) is highly concentrated; (2)
has high barriers to entry; (3) is highly interchangeable; (4) is rife with
opportunities to meet and conspire; and (5) has excess capacity. 1. The Market for Vehicle Carriers Is Highly Concentrated
47. A concentrated market is more susceptible to collusion and other
anticompetitive practices. According to a September 6, 2012 Bloomberg article,
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citing Nomura Holdings Inc., Defendants controlled over 70 percent of the Vehicle
Carrier Services market during the Class Period. 2. The Market for Vehicle Carrier Services Has High Barriers to Entry
48. There are substantial monetary and industry barriers that preclude or
reduce entry into the Vehicle Carrier Services market. Highly specialized
equipment and industry knowledge are required such as RORO cargo ships,
purposely built as car carriers. These characteristics restrict the use of the ships to
the Vehicle Carrier Services market.
49. A new entrant into the business would face costly and lengthy start-up
costs, including multi-million dollar costs associated with manufacturing or
acquiring a fleet of Vehicle Carriers and other equipment, fuel, transportation and
distribution infrastructure and skilled labor. It is estimated that the capital cost of a
RORO is at least $95 million.1 Therefore, Vehicle Carrier Services market
involves economies of scale and scope which present barriers to entry. Vehicle
Carrier Services also require the establishment of customer routes based on long
established relationships with foreign car manufacturers and with highly unionized
ports in California. Well-established routes and long term business relationships
creates an additional barrier to entry.
50. Defendants also own related shipping or transportation businesses
they can utilize to provide additional services to clients, such as the operation of
dedicated shipping terminals and inland transportation in California. 3. There is Inelasticity of Demand for Vehicle Carrier Services
51. “Elasticity” is a term used to describe the sensitivity of supply and
demand to changes in one or the other. A global Vehicle Carrier Services cartel, as
alleged here, profits from raising prices above competitive levels because demand
for Vehicle Carrier Services is inelastic. Normally, increased prices would result
1 Asaf Ashar, Marine Highways’ New Direction, J. OF COM. 38 (Nov. 21 2011).
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in declining sales, revenues, and profits as customers purchased substitute products
or declined to buy altogether. However, the inelastic demand for the Vehicle
Carrier Services facilitates collusion, allowing Defendants to raise their prices
without triggering customer substitution and lost sales revenue.
52. Vehicle Carrier Services are inelastic because a RORO is the only
ocean vessel that has the carrying capacity for a large number of Vehicles and
foreign car manufacturers must employ Vehicle Carrier Services to transport their
vehicles to California, regardless of whether prices are kept at supra-competitive
levels. There is simply no substitution. 4. The Services Provided by Vehicle Carriers Are Interchangeable
53. Defendants’ Vehicle Carrier Services are similar and, hence,
interchangeable making it easier to unlawfully agree on the price for and allocation
of transportation services and to effectively collude to set prices. These factors
make it easier to form an unlawful cartel.
54. Defendants’ Vehicle Carrier Services are so similar that Vehicle
Carrier Service customers make decisions based primarily on price, which further
facilitate Defendants’ conspiracy by making coordination on price much simpler.
55. Pricing for Vehicle Carrier Services (per vehicle) remained relatively
flat from 2001 to 2006. In 2001, the per vehicle price was approximately $301.30,
while in 2006 the per vehicle price was $305.79, an increase of less than 2%.
Beginning just prior to the Class Period, the price of Vehicle Carrier Services has
increased by 23% and has far outpaced any increase in demand during the Class
Period.
56. In the absence of an unlawful price-fixing conspiracy, according to
the laws of supply and demand, prices would not increase at a rate greater than the
rate of demand, yet that is exactly what happened in the Vehicle Carrier Services
market during the Class Period and has triggered investigations by JFTC, the DOJ,
and other international antitrust commissions.
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5. Ample Opportunities to Meet and Conspire 57. Defendants attended industry events where they have had the
opportunity to meet and collude as to pricing. Trade shows for shipping
companies around the globe, include the Breakbulk conferences2 and the biennial
RO/RO trade show in Europe.
58. Defendants KKK Line and Nippon Line are also members of the
Transpacific Stabilization Agreement (TSA), which consists of “major ocean
container shipping lines that carry cargo from Asia to ports and inland points in the
U.S.” See “About TSA” at http://www.tsacarriers.org/about.html available as of
(June 6 2013). The TSA Forum provides an opportunity to meet, exchange market
information, and jointly conduct market research and to purportedly develop
voluntary, non-binding guidelines for rates and charges.
59. Defendants KKK Line, Nippon Line, and MOL have already been
fined by the DOI, JFTC, EC and various other antitrust commissions for their roles
in a conspiracy to fix air freight forwarding fees across several continents.
60. Defendants routinely enter into joint “vessel sharing” or “space
charter” agreements and are the majority of all agreements registered with the
Federal Maritime Commission (“FMC”). These agreements provide an
opportunity for Defendants to discuss Vehicle shipping markets, routes, and rates
and engage in illegal price fixing and bid rigging conspiracies. 6. The Market for Vehicle Carrier Services Has Excess Capacity
2 Breakbulk Magazine provides its readers with project cargo, heavy lift and Rory logistics intelligence including news, trending, data and metrics. Breakbulk Magazine’s global events include Breakbulk Transportation Conferences & Exhibitions, which “are the largest international events focused on traditional breakbulk logistics, heavy-lift transportation and project cargo trade issues.” The conferences provide opportunities to “meet with specialized cargo carriers, ports, terminals, freight forwarders, heavy equipment transportation companies and packers.” See: http://www.breakbulk.comfbreakbulk-global-events/available as of (June 6, 2013).
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61. While the capacity of Vehicle Carriers to transport cars has increased
since 2007, the utilization rate of Vehicle Carriers Services has fallen, and
remained stable at a rate of approximately 83% since 2010. Therefore, the market
for Vehicle Carrier Services has operated in a state of excess capacity since 2008.
The tables below demonstrate that.
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62. In the face of such excess capacity, Defendants have lowered a
carrier’s speed to conserve on fuel costs (referred to as “eco-speed”). By using
“eco-speed,” Defendants are able to use more ships at the same time, thereby
decreasing capacity and creating artificial capacity shortages.
63. Defendants’ actions of using “eco-speed” and vessel sharing are
colluding to reduce output in order to increase prices despite overcapacity in the
Vehicle Carrier Services market. By acting in concert pursuant to their conspiracy,
Defendants decreased the availability of Vehicle Carrier Services in the market,
which caused prices to rise artificially during the Class Period.
64. Defendants’ practices of eco-speeding and vessel sharing represent
concerted, collusive efforts to reduce output in order to increase prices despite
overcapacity in the Vehicle Carrier Services market. By acting in concert,
Defendants decreased the availability of Vehicle Carrier Services in the market,
which caused prices to rise artificially during the Class Period. Collusion in the Vehicle Carrier Services Market
65. There is strong evidence of Defendants’ collusion in raising and fixing
prices and allocating markets. Such evidence includes: (1) Defendants raising
prices at a rate that exceeded demand; (2) Defendants previously colluded in the
freight forwarding services and paid substantial fines as a result; and (3) the DOJ,
JFTC and other antitrust commissions are investigating Defendants’ price fixing
conduct in the Vehicle Carrier Services industry. 1. Defendants Raised Prices at a Rate that Far Exceeded Demand
66. Prices for Vehicle Carrier Services have been generally increasing
since 2006 from $320 in 2000 to over $400 in 2012. 2. Defendants Previously Colluded in Different Markets
67. In 2007, the DOJ launched an investigation into price fixing among
international air freight forwarders, including Defendants’ affiliates and
subsidiaries.
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68. On September 30, 2011, MOL Logistics (Japan) Co., Ltd. plead guilty
to Sherman Act violations as a result of the DOJ”s freight forwarding
investigation, resulting in more than $120 million in criminal fines to date. MOL
Logistics (Japan) Co. Ltd., conspired by participating in meetings, conversations,
and communications to discuss certain components of freight forwarding service
fees to be charged on air cargo shipments from Japan to the United States; and by
agreeing on one or more components of the freight forwarding service fees to be
charged on air cargo shipments from Japan to the United States.
69. On March 8, 2013, the DOJ announced that “K” Line Logistics, Ltd.
and Yusen Logistics Co., Ltd., a subsidiary of Defendant Nippon Line, agreed to
pay criminal fines of $3,501,246 and $15,428,207, respectively, for their roles in a
conspiracy to fix certain freight forwarding fees for cargo shipped by air from the
United States to Japan.
70. On March 19, 2009, the JFTC ordered 12 companies to pay $94.7
million in fines for violations of the Japanese Antimonopoly Act (“AMA”).
Included among the 12 companies were “K” Line Logistics, Ltd., a subsidiary of
Defendant KKK Line, Yusen Air & Sea Services Co., Ltd., a subsidiary of
Defendant KKK Line, and MOL Logistics (Japan) Co., Ltd., a subsidiary of
Defendant MOL.
71. The JFTC concluded that the companies had, over a five-year period,
met and agreed to, among other things, the amount of fuel surcharges, security
charges, and explosive inspection charges that they would charge their
international air freight forwarding customers. The agreements were, according to
the JFTC, negotiated at meetings of the Japan Aircargo Forwarders Association.
72. On March 28, 2012, the European Commission (“EC”) fined 14
international groups of companies a total of $219 million, including Yusen Shenda
Air & Sea Service (Shanghai) Ltd., a subsidiary of Defendant Nippon Line.
According to the EC, “[i]n four distinct cartels, the cartelists established and
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coordinated four different surcharges and charging mechanisms, which are
component elements 4 of the final price billed to customers for these services.”
3. DOJ and JFTC Are Investigating Price-Fixing in the Vehicle Carrier Services Market
73. On September 6, 2012, the JFTC executed raids at the Japanese
offices of Nippon Line, MOL, KKK Line, WWL, and ECC as part of an
investigation into price-fixing of Vehicle Carrier Services in violation of Japan’s
Antimonopoly Act.
74. On September 7, 2012, Defendant WW ASA also reported that it had
received a request for information and that its subsidiaries, WWL and ECC had
been visited as part of an investigation related to the Japan Antimonopoly Act.
ECC also received requests for information from the DOJ. According to
Defendant WW ASA, the purpose of the requests “is to ascertain whether there is
evidence of any infringement of competition law related to possible price
cooperation between carriers and allocation of customers.”
75. The Japanese Business Daily reported that the shipping affiliates of
Toyota Motor Corp. and Nissan Motor Co. were also among the companies raided
by the JFTC. Toyota Motor Corp’s shipping affiliate is Defendant ToyoFuji, and
Nissan Motor Co.’s affiliate is Defendant Nissan MMC.
76. Defendant CSAV issued a statement in mid-September revealing that
its employees had received subpoenas from the DOJ as follows: “[t]he
investigation seeks to inquire into the existence of antitrust law violations related
to cooperation agreements on prices and allocation of clients between car carriers.”
77. Shortly after the September 2012 raids, the DOJ confirmed that in
coordination with the European Commission and the JFTC “[t]he antitrust division
is investigating the possibility of anticompetitive practices involving the ocean
shipping of cars, trucks, construction equipment, and other products.”
///
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PLAINTIFF AND THE CLASS SUFFERED ANTITRUST INJURY
78. The Defendants’ price-fixing conspiracy had the following effects,
among others:
(a) Price competition has been restrained or eliminated with respect
to Vehicle Carrier Services;
(b) The prices of Vehicle Carrier Services have been fixed, raised,
maintained, or stabilized at artificially inflated levels;
(c) Indirect purchasers of Vehicle Carrier Services have been
deprived of free and open competition; and
(d) Indirect purchasers of Vehicle Carrier Services paid artificially
inflated prices.
79. During the Class Period, Plaintiff and the members of the Class paid
supra-competitive prices for Vehicle Carrier Services. Car manufacturers and
automobile dealers passed on the inflated charges to purchasers and lessees of new
Vehicles in California. Those overcharges have unjustly enriched Defendants.
80. The market for Vehicle Carrier Services and the market for Vehicles
are inextricably linked and intertwined because the market for Vehicle Carrier
Services exists to serve the new car market in California. The demand for new
cars creates the demand for Vehicle Carrier Services. According to a July 19, 2012
Union Tribune news article, California auto dealers sold 1.3 million new cars in
California in 2011 alone. According to the California New Car Dealership
Association (“NCDA”) 1.6 million new cars and light trucks were sold in
California in 2012 and the NCDA expects 1.75 million new cars to be sold in
California in 2013. According to NCDA, 69% of these new cars sold were from
foreign car manufacturers.
81. The manufacturer and dealer markets for new cars are subject to
vigorous price competition, have thin net margins, and are therefore at the mercy
of their input costs. Increases in the price of Vehicle Carrier Services leads to
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corresponding increases in prices for new Vehicles at the manufacturing and dealer
levels. When downstream distribution markets are highly competitive, as they are
in the case of new cars, overcharges are passed through to ultimate consumers,
such as the indirect-purchaser Plaintiff and the Class.
82. Hence, the inflated prices of Vehicle Carrier Services in new cars
resulting from Defendants’ price-fixing conspiracy have been passed on to Plaintiff
and the other members of the Class in California by manufacturers and dealers.
83. The purpose of the conspiratorial conduct of the Defendants and their
co-conspirators was to raise, fix, rig or stabilize the price of Vehicle Carrier
Services and, as a direct and foreseeable result, the price of new Vehicles shipped
by Vehicle Carriers.
84. The precise amount of the overcharge impacting the prices of new
Vehicles shipped by Vehicle Carrier can be measured and quantified. Commonly
used and well-accepted economic models can be used to measure both the extent
and the amount of the supra-competitive charge passed-through the chain of
distribution. Thus, the economic harm to Plaintiff and the members of the Class
can be quantified.
85. By reason of the alleged violations of the antitrust laws and other laws
alleged herein, Plaintiff and the members of the Class have sustained injury to their
businesses or property, having paid higher prices for Vehicle Carrier Services than
they would have paid in the absence of the Defendants’ illegal contract,
combination, or conspiracy, and, as a result, have suffered damages in an amount
presently undetermined. This is an antitrust injury of the type that the antitrust laws
were meant to punish and prevent.
PLAINTIFF’ CLAIMS ARE NOT BARRED BY THE STATUTE OF LIMITATIONS
86. Plaintiff repeats and re-alleges the allegations set forth above.
87. Plaintiff and members of the Class had no knowledge of the
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combination or forth therein, until shortly before the filing of this Complaint.
Plaintiff and members of the Class did not discover, and could not have discovered
through the exercise of reasonable diligence, the existence of the conspiracy
alleged herein any earlier than September 6, 2012, the date the JFTC announced
raids of certain Defendants’ offices for their role in the criminal price-fixing
conspiracy alleged herein.
88. Plaintiff and members of the Class are consumers who had no direct
contact or interaction with the Defendants, and had no means from which they
could have discovered the combination and conspiracy described in this Complaint
before the September 6, 2012 raids.
89. No information in the public domain was available to Plaintiff and
members of the Class prior to the announced raids on September 6, 2012 that
suggested that the Defendants were involved in a criminal conspiracy to fix the
price charged for Vehicle Carrier Services. Plaintiff and members of the Class
through the exercise of due diligence had no means of obtaining any facts or
information concerning any aspect of Defendants’ dealings with OEMs or other
direct purchasers, much less the fact that they had engaged in the combination and
conspiracy alleged herein.
90. For these reasons, the statute of limitations as to Plaintiff and the
Class’s claims did not begin to run, and has been tolled with respect to the claims
that Plaintiff and members of the Class have alleged in this Complaint. Fraudulent Concealment Tolled the Statute of Limitations
91. In the alternative, the statute of limitations is tolled by the doctrine of
fraudulent concealment. Prior to September 6, 2012, JFTC announced raids of
certain Defendants’ offices for their role in the criminal price-fixing conspiracy,
Plaintiff and members of the Class were unaware of Defendants’ unlawful conduct,
and did not know before then that they were paying supra-competitive prices for
Vehicle Carrier Services throughout the United States and California during the
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Class Period. No actual or constructive information was made available to Plaintiff
and members of the Class.
92. The affirmative acts in furtherance of the conspiracy, were wrongfully
concealed and carried out in a manner that precluded detection. Defendants met
and communicated in secret and agreed to keep the facts about their collusive
conduct from being discovered by any member of the public or by the direct
purchasers with whom they did business.
93. Because the alleged conspiracy was both self-concealing and
affirmatively concealed by Defendants and their co-conspirators, Plaintiff and
members of the Class had no knowledge of the alleged conspiracy, or of any facts
or information that would have caused a reasonably diligent person to investigate
whether a conspiracy existed, until September 6, 2012, when the JFTC announced
raids of certain Defendants’ offices for their role in the criminal price-fixing
conspiracy alleged herein.
94. For these reasons, the statute of limitations applicable to Plaintiff’ and
the Class’s claims were tolled and did not begin to run until September 6, 2012. FIRST CLAIM FOR RELIEF
Violation of Section 1 of the Sherman Act
95. Plaintiff repeats and re-alleges the allegations set forth above.
96. Defendants and unnamed conspirators entered into and engaged in a
contract, combination, or conspiracy in unreasonable restraint of trade in violation
of Section 1 of the Sherman Act (15 U.S.C. § 1).
97. The acts done by each of the Defendants as part of, and in furtherance
of, their contract, combination, or conspiracy were authorized, ordered, or done by
their officers, agents, employees, or representatives while actively engaged in the
management of Defendants’ affairs.
98. During the Class Period, Defendants and their co-conspirators entered
into a continuing agreement, understanding and conspiracy in restraint of trade to
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artificially fix, raise, stabilize, and control prices for Vehicle Carrier Services,
thereby creating anticompetitive effects.
99. The anticompetitive acts were intentionally directed at the United
States market for Vehicle Carrier Services and had a substantial and foreseeable
effect on interstate commerce by raising and fixing prices for Vehicle Carrier
Services throughout the United States.
100. The conspiratorial acts and combinations have caused unreasonable
restraints in the market for Vehicle Carrier Services.
101. As a result of Defendants’ unlawful conduct, Plaintiff and other
similarly situated indirect purchasers in the Class who purchased Vehicle Carrier
Services have been harmed by being forced to pay inflated, supra-competitive
prices for Vehicle Carrier Services.
102. In formulating and carrying out the alleged agreement, understanding
and conspiracy, Defendants and their co-conspirators did those things that they
combined and conspired to do, including but not limited to the acts, practices and
course of conduct set forth herein.
103. Defendants’ conspiracy had the following effects, among others:
(a) Price competition in the market for Vehicle Carrier Services has
been restrained, suppressed, and/or eliminated in the United States;
(b) Prices for Vehicle Carrier Services provided by Defendants and
their co-conspirators have been fixed, raised, maintained, and
stabilized at artificially high, non-competitive levels throughout the
United States; and
(c) Plaintiff and members of the Class who purchased Vehicle
Carrier Services indirectly from Defendants and their co-conspirators
have been deprived of the benefits of free and open competition.
104. Plaintiff and members of the Class have been injured and will
continue to be injured in their business and property by paying more for Vehicle
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Carrier Services purchased indirectly from Defendants and the co-conspirators than
they would have paid and will pay in the absence of the conspiracy.
105. The alleged contract, combination, or conspiracy is a per se violation
of the federal antitrust laws.
106. Plaintiff and members of the Class are entitled to an injunction against
Defendants, preventing and restraining the violations alleged herein. SECOND CLAIM FOR RELIEF
Violations of California Business and Professions Code §§ 16700 et seq.
107. Plaintiff repeats and re-alleges the allegations set forth above.
108. During the Class Period, Defendants and their co-conspirators
engaged in a continuing contract, combination or conspiracy with respect to the
provision of Vehicle Carrier Services in unreasonable restraint of trade and
commerce and in violation of California Business and Professions Code §§ 16700
et seq.
109. The contract, combination, or conspiracy consisted of an agreement
among the Defendants and their co-conspirators to fix, raise, inflate, stabilize,
and/or maintain at artificially supra-competitive prices for Vehicle Carrier Services
and to allocate customers for Vehicle Carrier Services in California.
110. In formulating and effectuating this conspiracy, Defendants and their
co-conspirators performed acts in furtherance of the combination and conspiracy,
including:
(a) participating in meetings and conversations among themselves
in the United States and elsewhere during which they agreed to price
Vehicle Carrier Services at certain levels, and otherwise to fix,
increase, inflate, maintain, or stabilize effective prices paid by
Plaintiff and members of the Damages Class with respect to Vehicle
Carrier Services provided in California;
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(b) allocating customers and markets for Vehicle Carrier Services
provided in California in furtherance of their agreements; and
(c) participating in meetings and conversations among themselves
in the United States and elsewhere to implement, adhere to, and police
the unlawful agreements they reached.
111. Defendants and their co-conspirators engaged in the actions described
above for the Purpose of carrying out their unlawful agreements to fix, increase,
maintain, or stabilize prices and to allocate customers with respect to Vehicle
Carrier Services.
112. Defendants’ anticompetitive acts described above were knowing,
willful and constitute violations or flagrant violations of California Business and
Professions Code §§ 16700 et seq.
113. During the Class Period, Defendants and their co-conspirators entered
into and engaged in a continuing unlawful trust in restraint of the trade and
commerce described above in violation of Section 16720 of the California
Business and Professions Code. Defendants, and each of them, have acted in
violation of Section 16720 to fix, raise, stabilize, and maintain prices of, and
allocate markets for, Vehicle Carrier Services at supra-competitive levels.
114. The aforesaid violations of Section 16720 of the California Business
and Professions Code consisted, without limitation, of a continuing unlawful trust
and concert of action among the Defendants and their co-conspirators, the
substantial terms of which were to fix, raise, maintain, and stabilize the prices of,
and to allocate markets for, Vehicle Carrier Services.
115. The combination and conspiracy alleged herein has had, inter alia, the
following effects: price competition in the provision of Vehicle Carrier Services
has been restrained, suppressed, and/or eliminated in the State of California; prices
for Vehicle Carrier Services provided by Defendants and their co-conspirators
have been fixed, raised, stabilized, and pegged at artificially high, non-competitive
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levels in the State of California and throughout the United States; and those who
purchased Vehicle Carrier Services directly or indirectly from Defendants and their
co-conspirators have been deprived of the benefit of free and open competition.
116. As a direct and proximate result of Defendants’ unlawful conduct,
Plaintiff and members of the Class have been injured in their business and property
in that they paid more for Vehicle Carrier Services than they otherwise would have
paid in the absence of Defendants’ unlawful conduct. As a result of Defendants’
violation of Section 16720 of the California Business and Professions Code,
Plaintiff and members of the Class seek treble damages and their cost of suit,
including a reasonable attorney’s fees, pursuant to Section 16750(a) of the
California Business and Professions Code. THIRD CLAIM FOR RELIEF
Violations of California Business and Professions Code §§ 17200 et seq.
117. Plaintiff repeats and re-alleges the allegations set forth above.
118. Defendants have engaged in unfair competition or unfair,
unconscionable, deceptive or fraudulent acts or practices in violation of California
Business and Professions Code § 17200 et seq.
119. During the Class Period, Defendants marketed, sold, or distributed
Vehicle Carrier Services in California, and committed and continue to commit acts
of unfair competition, as defined by Sections 17200 et seq. of the California
Business and Professions Code, by engaging in the acts and practices specified
above.
120. This claim is instituted pursuant to Sections 17203 and 17204 of the
California Business and Professions Code, to obtain restitution from these
Defendants for acts, as alleged herein, that violated Section 17200 of the California
Business and Professions Code, commonly known as the Unfair Competition Law.
121. The Defendants’ conduct as alleged herein violated Section 17200.
The acts, omissions, misrepresentations, practices and non-disclosures of
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Defendants, as alleged herein, constituted a common, continuous, and continuing
course of conduct of unfair competition by means of unfair, unlawful, and/or
fraudulent business acts or practices within the meaning of California Business and
Professions Code, Section 17200, et seq., including, but not limited to, the
following: (1) the violations of Section 1 of the Sherman Act, as set forth above;
(2) the violations of Section 16720, et seq., of the California Business and
Professions Code, set forth above;
122. Defendants’ acts, omissions, misrepresentations, practices, and non-
disclosures, as described above, whether or not in violation of Section 16720, et
seq., of the California Business and Professions Code, and whether or not
concerted or independent acts, are otherwise unfair, unconscionable, unlawful or
fraudulent;
123. Defendants’ acts or practices are unfair to purchasers of Vehicle
Carrier Services (or Vehicles transported by them) in the State of California within
the meaning of Section 17200, California Business and Professions Code; and
124. Defendants’ acts and practices are fraudulent or deceptive within
the meaning of Section 17200 of the California Business and Professions Code.
125. Plaintiff and members of the Class are entitled to full restitution
and/or disgorgement of all revenues, earnings, profits, compensation, and benefits
that may have been obtained by Defendants as a result of such business acts or
practices.
126. The illegal conduct alleged herein is continuing and there is no
indication that Defendants will not continue such activity into the future.
127. The unlawful and unfair business practices of Defendants, and each
of them, as described above, have caused and continue to cause Plaintiff and the
members of the Class to pay supra-competitive and artificially-inflated prices for
Vehicle Carrier Services (or Vehicles transported by them). Plaintiff and the
Case 3:13-cv-01319-H-DHB Document 1 Filed 06/06/13 Page 29 of 35Case MDL No. 2471 Document 1-8 Filed 06/13/13 Page 29 of 37
CLASS ACTION COMPLAINT
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members of the Class suffered injury in fact and lost money or property as a result
of such unfair competition.
128. The conduct of Defendants as alleged in this Complaint violates
Section 17200 of the California Business and Professions Code.
129. As alleged in this Complaint, Defendants and their co-conspirators
have been unjustly enriched as a result of their wrongful conduct and by
Defendants’ unfair competition. Plaintiff and the members of the Class are
accordingly entitled to equitable relief including restitution and/or disgorgement of
all revenues, earnings, profits, compensation, and benefits that may have been
obtained by Defendants as a result of such business practices, pursuant to the
California Business and Professions Code §§ 17203 and 17204. PRAYER FOR RELIEF
Accordingly, Plaintiff respectfully requests that:
A. The Court determine that this action may be maintained as a class
action under Rule 23(a), (b)(2) and (b)(3) of the Federal Rules of Civil Procedure,
and direct that reasonable notice of this action, as provided by Rule 23(c)(2) of the
Federal Rules of Civil Procedure, be given to each and every member of the Class;
B. That the unlawful conduct, contract, conspiracy, or combination
alleged herein be adjudged and decreed:
(a) An unreasonable restraint of trade or commerce in violation of
Section 1 of the Sherman Act;
(b) A per se violation of Section 1 of the Sherman Act; and
(c) An unlawful combination, trust, agreement, understanding
and/or concert of action in violation of the California state statutes as
set forth herein.
C. Plaintiff and the members of the Class recover damages, to the
maximum extent allowed under such laws, and that a joint and several judgment in
Case 3:13-cv-01319-H-DHB Document 1 Filed 06/06/13 Page 30 of 35Case MDL No. 2471 Document 1-8 Filed 06/13/13 Page 30 of 37
CLASS ACTION COMPLAINT
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favor of Plaintiff and the members of the Class be entered against Defendants in an
amount to be trebled to the extent such laws permit;
D. Plaintiff and the members of the Class recover damages, to the
maximum extent allowed by such laws, in the form of restitution and/or
disgorgement of profits unlawfully gained from them;
E. Defendants, their affiliates, successors, transferees, assignees and
other officers, directors, partners, agents and employees thereof, and all other
persons acting or claiming to act on their behalf or in concert with them, be
permanently enjoined and restrained from in any manner continuing, maintaining
or renewing the conduct, contract, conspiracy, or combination alleged herein, or
from entering into any other contract, conspiracy, or combination having a similar
purpose or effect, and from adopting or following any practice, plan, program, or
device having a similar purpose or effect;
F. Plaintiff and the members of the Class be awarded restitution,
including disgorgement of profits Defendants have obtained as a result of their acts
of unfair competition and acts of unjust enrichment;
G. Plaintiff and the members of the Class be awarded pre- and post-
judgment interest as provided by law, and that such interest be awarded at the
highest legal rate from and after the date of service of this Complaint;
H. Plaintiff and the members of the Class recover their costs of suit,
including reasonable attorneys’ fees, as provided by law; and
I. Plaintiff and members of the Class have such other and further relief
as the case may require and the Court may deem just and proper.
///
///
///
///
///
Case 3:13-cv-01319-H-DHB Document 1 Filed 06/06/13 Page 31 of 35Case MDL No. 2471 Document 1-8 Filed 06/13/13 Page 31 of 37
CLASS ACTION COMPLAINT
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JURY DEMAND Plaintiff hereby demands a trial by jury on all issues so triable.
Respectfully Submitted,
DATED: June 6, 2013 WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP FRANCIS M. GREGOREK BETSY C. MANIFOLD RACHELE R. RICKERT MARISA C. LIVESAY
By: /s/Betsy C. Manifold
750 B Street, Suite 2770 San Diego, California 92101 Telephone: 619/239-4599 Facsimile: 619/234-4599 [email protected] [email protected] [email protected] [email protected] WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLC MARY JANE FAIT PATRICK H. MORAN (270881) 55 West Monroe Street, Suite 1111 Chicago, IL 60603 Telephone: 312/984-0000 Facsimile: 312/984-0001 [email protected] [email protected]
Case 3:13-cv-01319-H-DHB Document 1 Filed 06/06/13 Page 32 of 35Case MDL No. 2471 Document 1-8 Filed 06/13/13 Page 32 of 37
CLASS ACTION COMPLAINT
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WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP DANIEL W. KRASNER THOMAS H. BURT 270 Madison Avenue New York, NY 10016 Telephone: 212/545-4600 Facsimile: 312/545-4653 [email protected] [email protected] Attorneys for Plaintiff David Schroeder
NIPPON:19934.complaint
Case 3:13-cv-01319-H-DHB Document 1 Filed 06/06/13 Page 33 of 35Case MDL No. 2471 Document 1-8 Filed 06/13/13 Page 33 of 37
!"#$$###%&'()#*+,*+- CIVIL COVER SHEET./'#!"#$$#01(12#03('4#5/''6#789#6/'#18:34;76138#0386718'9#/'4'18#8'16/'4#4'<270'#834#5=<<2';'86#6/'#:1218>#789#5'4(10'#3:#<2'7918>5#34#36/'4#<7<'45#75#4'?=14'9#@A#27BC##'D0'<6#75<43(19'9#@A#23072#4=2'5#3:#03=46)##./15#:34;C#7<<43('9#@A#6/'#!=910172#E38:'4'80'#3:#6/'#F816'9#"676'5#18#"'<6';@'4#*GH$C#15#4'?=14'9#:34#6/'#=5'#3:#6/'#E2'4I#3:#E3=46#:34#6/'<=4<35'#3:#181617618>#6/'#01(12#930I'6#5/''6)###(SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS DEFENDANTS
(b)###E3=86A#3:#&'519'80'#3:#J1456#K156'9#L271861:: E3=86A#3:#&'519'80'#3:#J1456#K156'9#M':'89786
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NO.PQ RN#KSNM#EONMPTNS.RON#ES"P"C#F"P#.UP#KOES.RON#OJ#.UP#.&SE.#OJ#KSNM#RNVOKVPM)
###############
(c)###S66348'A5#(Firm Name, Address, and Telephone Number) #S66348'A5#(If Known)
II. BASIS OF JURISDICTION#(Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
! * ##F)")#W3('48;'86 ! X #J'9'472#Y='56138 PTF DEF PTF DEF
L271861:: (U.S. Government Not a Party) E161Z'8#3:#./15#"676' ! * ! #* R8034<3476'9#or#L41801<72#L270' ! $ ! $
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IV. NATURE OF SUIT#(Place an “X” in One Box Only)
CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
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! *\_#&'03('4A#3:#O('4<7A;'86 ! X+_#S557=26C#K1@'2#c #L/74;70'=61072 PROPERTY RIGHTS ! $\_#E3;;'40'
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! *\X#&'03('4A#3:#O('4<7A;'86 ##K17@1216A # PERSONAL PROPERTY ! H*_#J714#K7@34#"67897495 ! `^*#URS#%*XG\::- ! `\_#"'0=4161'5,E3;;39161'5,
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! +*_#K789#E389';876138 ! $$_#O6/'4#E1(12#&1>/65 Habeas Corpus: #R803;'#"'0=416A#S06 ! `H_#.7D'5#%F)")#L271861:: #S06,&'(1'B#34#S<<'72#3:#
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VI. CAUSE OF ACTION
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#
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VII. REQUESTED IN
COMPLAINT:
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JURY DEMAND: ! h'5 ! N3
VIII. RELATED CASE(S)
IF ANY(See instructions):
!FMWP MOEgP.#NFT[P&
MS.P "RWNS.F&P#OJ#S..O&NPh#OJ#&PEO&M
FOR OFFICE USE ONLY
&PEPRL.#i STOFN. SLLKhRNW#RJL !FMWP TSW)#!FMWP
DAVID SCHROEDER, on his own behalfand on behalf of all others similarlysituated,
Riverside
Betsy C.ManifoldW olf Haldenstein Alder Freeman & HerzLLP750B Street, Suite 2770, San Diego, CA 92101, 619/239-4599
NIPPON YUSEN KABUSHIKI KAISHA, et al.
15U.S.C.section 1
Violations of Federal Antitrust Laws and California Unfair Competition Laws
06/09/2013 /s/Betsy C.Manifold
'13CV1319 DHBH
Case 3:13-cv-01319-H-DHB Document 1 Filed 06/06/13 Page 34 of 35Case MDL No. 2471 Document 1-8 Filed 06/13/13 Page 34 of 37
!"#$$#&'('45'##%&'()#*!,*+-
INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44
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(c) Attorneys.##P86'4#6/'#:14;#87;'C#7994'55C#6'2'</38'#8=;@'4C#789#766348'A#3:#4'0349)##R:#6/'4'#74'#5'('472#766348'A5C#2156#6/';#38#78#76670/;'86C#83618>
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II. Jurisdiction.##./'#@7515#3:#]=4159106138#15#5'6#:346/#=89'4#&=2'#`%7-C#J)&)E()L)C#B/10/#4'?=14'5#6/76#]=41591061385#@'#5/3B8#18#<2'7918>5)##L270'#78#jej#
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M1('4516A#3:#0161Z'85/1<)##%$-#./15#4':'45#63#5=165#=89'4#+`#F)")E)#*XX+C#B/'4'#<7461'5#74'#0161Z'85#3:#91::'4'86#5676'5)##b/'8#[3D#$#15#0/'0I'9C#6/'#
0161Z'85/1<#3:#6/'#91::'4'86#<7461'5#;=56#@'#0/'0I'9. %"''#"'06138#RRR#@'23B; NOTE: federal question actions take precedence over diversity
cases.-
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VI. Cause of Action.##&'<346#6/'#01(12#5676=6'#914'062A#4'276'9#63#6/'#07=5'#3:#706138#789#>1('#7#@41':#9'5041<6138#3:#6/'#07=5')##Do not cite jurisdictional
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VII. Requested in Complaint.##E2755#S06138)##L270'#78#jej#18#6/15#@3D#1:#A3=#74'#:1218>#7#02755#706138#=89'4#&=2'#+XC#J)&)E()L)
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Date and Attorney Signature.##M76'#789#51>8#6/'#01(12#03('4#5/''6)
Case 3:13-cv-01319-H-DHB Document 1 Filed 06/06/13 Page 35 of 35Case MDL No. 2471 Document 1-8 Filed 06/13/13 Page 35 of 37
U.S. District CourtSouthern District of California (San Diego)
CIVIL DOCKET FOR CASE #: 3:13−cv−01319−H−DHB
Schroeder v. Kaisha et alAssigned to: Judge Marilyn L. HuffReferred to: Magistrate Judge David H. BartickCause: 15:1 Antitrust Litigation
Date Filed: 06/06/2013Jury Demand: PlaintiffNature of Suit: 410 Anti−TrustJurisdiction: Federal Question
Plaintiff
David Schroederon his own behalf and on the behalf of allothers similarly situated
represented byBetsy Carol ManifoldWolf Haldenstein Adler Freeman and Herz750 B StreetSymphony Towers Suite 2770San Diego, CA 92101−5050(619)239−4599Fax: (619)234−4599Email: [email protected] ATTORNEYATTORNEY TO BE NOTICED
V.
Defendant
Nippon Yusen Kabushiki Kaisha
Defendant
NYK Line (North America) Inc.
Defendant
Eukor Car Carriers, Inc.
Defendant
Compania Sud Americana De Vapores,S.A.
Defendant
Kawasaki Kisen Kaisha, LTD.
Defendant
'K' Line America, Inc.
Defendant
Mitsui O.S.K. Lines, LTD.
Defendant
Mitsui O.S.K. Bulk Shipping (USA),Inc.
Defendant
Nissan Motor Car Carrier Co., LTD
Defendant
World Transport Co., LTD.
Defendant
Case: 3:13-cv-01319-H-DHB As of: 06/13/2013 11:38 AM PDT 1 of 2Case MDL No. 2471 Document 1-8 Filed 06/13/13 Page 36 of 37
World Logistics Service (U.S.A.), Inc.
Defendant
Toyofuji Shipping Co., LTD.
Defendant
Wallenius Lines, AB
Defendant
Wilh. Wilhemsen Holding, ASA
Defendant
Wilh. Wilhelmsen, ASA
Defendant
Wallenius Wilhelmsen
Defendant
Logistics Americas, LLC
Defendant
WWL Vehicle Services Americas Inc.
Defendant
American Shipping and Logistics Inc.
Defendant
American Auto Logistics, Inc.
Date Filed # Docket Text
06/06/2013 1 COMPLAINT with Jury Demand against All Defendants (Filing fee $400 receiptnumber 0974−5981434), filed by David Schroeder.
The new case number is 3:13−cv−1319−H−DHB. Judge Marilyn L. Huff andMagistrate Judge David H. Bartick are assigned to the case. (Manifold,Betsy)(dlg)(av1). (Entered: 06/07/2013)
06/07/2013 2 Summons Issued.Counsel receiving this notice electronically should print this summons andserve it in accordance with Rule 4, Fed.R.Civ.P and LR 4.1. (dlg) (av1).(Entered: 06/07/2013)
Case: 3:13-cv-01319-H-DHB As of: 06/13/2013 11:38 AM PDT 2 of 2Case MDL No. 2471 Document 1-8 Filed 06/13/13 Page 37 of 37