Defendant suppliers ask for civil claim dismissals in price-fixing litigation
|Chad Halcom is the legal beat reporter for Crain's Detroit Business, an affiliate of Automotive News.|
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DETROIT -- Two dozen defendants in consolidated civil price-fixing lawsuits being heard in U.S. District Court here are calling for the suits to be dismissed.
Two motions filed late last week argue that the plaintiff customer auto suppliers, dealerships and car buyers have no standing to sue -- or at least don't have standing the way the potential class action lawsuits currently stand.
One motion before Judge Marianne Battani argues in part that supplier customers who bought components from the defendant suppliers don't have standing to sue because none of the defendants have admitted to or been shown to have colluded to raise the prices charged to those suppliers.
The second motion contends that dealerships and car buyers haven't established claims that can be pursued in federal court or are barred by various state laws governing their claims.
The defendants also argue that claims of collusion before late 2007 are barred by a four-year statute of limitations under the federal Clayton Act, excluding most of the alleged conspiracy period between 2000 and 2010.
Four of the 24 civil defendants -- Denso Corp., Yazaki Corp., Fujikura Ltd. and Furukawa Electric Co. Ltd. -- have already pleaded guilty to criminal charges of conspiracy to restrain trade in violation of the Sherman Act and have paid fines to the federal government.
The remaining 20 either have acknowledged that their facilities have been searched in the U.S. or Europe, have agreed to fines in Japan, have acknowledged cooperated with investigators or they compete directly in the same markets with the other companies.
Other civil defendants making the new motions to dismiss include Lear Corp.; Kyungshin-Lear Sales and Engineering LLC; Leoni AG, Leoni Wire Inc., Leoni Wiring Systems Inc. and other Leoni companies; Sumitomo and several subsidiaries; K&S Wiring Systems Inc.; S-Y Systems Technologies Europe GmbH; Tokai Rika Co. Ltd.; and TRAM Inc.
Now joining the ranks of suppliers under investigation -- although not named in a criminal or civil case -- is Behr GmbH & Co. KG and its suburban Detroit-based subsidiary, Behr America Inc.
Behr said Friday in an emailed statement that the European Commission made unannounced visits to company facilities in Europe in May and that the U.S. Department of Justice has also launched investigations into the company here.
Automotive News and Reuters reported that Stuttgart, Germany-based Mahle Group GmbH, which first acquired a stake in Behr in 2010 and now owns 36.8 percent of it, will hold off on its plans to grow to majority shareholder by early next year in light of the announcement.
Even if Behr doesn't face criminal charges, it could still be included as a defendant in civil court. Lear, Sumitomo Electric Industries Ltd. and Delphi Corp. have not been charged in the U.S. but were also named in civil lawsuits after either having offices searched or being named in the investigation overseas. Delphi has since been dismissed from the civil case.
Mahle is not considered a part of the thermal systems criminal investigation in Europe. Behr America has more than 3,000 employees and reported revenue of more than $750 million last year, according to the parent company's Web site. The company opened its current Troy, Mich., headquarters building in 2004 and has manufacturing plants in Ohio, Texas, South Carolina and Mexico.
Behr specializes in air-conditioning and engine-cooling systems including thermal control panels -- which were both the target of the European Commission raids in May and one of several vehicle components that are part of the expanding antitrust civil case before U.S. District Judge Marianne Battani.
One busy judge
Battani was handling a combined civil lawsuit involving only suppliers of automotive wire harness systems, which alone had consolidated about 50 cases filed in several states and Puerto Rico since last fall. But that number has recently ballooned to more than 80 cases.
Last month, the U.S. Judicial Panel on Multidistrict Litigation ordered that three dockets of nearly a dozen civil cases alleging anti-competitive practices among makers of heat control panels, automotive fuel senders and instrument panel clusters be rolled into Battani's previous case.
Lear additionally has brought its own motion to dismiss itself from the civil litigation, partly reviving the argument it made in a New York Bankruptcy Court that any antitrust claims were discharged by its 2009 bankruptcy reorganization.
Judge Allan Gropper ruled in that court this year that Lear can be sued for actions taken after emerging from Chapter 11 on Nov. 9, 2009, and might be liable for some conduct before that. But Lear has appealed that ruling.
Denso has also brought its own motion to dismiss the litigation.
Battani this week scheduled a hearing Aug. 2 in the case but is not expected yet to address any of these motions.
Criminal pleas to date
The Department of Justice Antitrust Division has taken guilty pleas in criminal cases from six companies since September, with fines totaling over $785 million in an investigation that dates back at least to a series of raids in early 2010.
Pleading guilty so far are wire-harness market leader Yazaki ($470 million), Furukawa ($200 million), Denso ($78 million), Fujikura ($20 million) G.S. Electech Inc. ($2.75 million) and, most recently, safety systems maker Autoliv Inc. ($14.5 million), plus a handful of executives at some of the companies.
Fujikura, Yazaki and Sumitomo also agreed to pay fines totaling more than $160 million combined, under an order this year by Japan's Fair Trade Commission.