1 

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

IN RE: AUTOMOTIVE PARTS 

ANTITRUST LITIGATION

:

: 

:

Master File No. 12-md-02311

Honorable Marianne O. Battani

In Re: Wire Harness Cases

:

: 

:

THIS DOCUMENT RELATES TO:

Public Entities

:

: 

: 

:

2:14-cv-00106-MOB-MKM

Oral Argument Scheduled for 

January 28, 2015

DEFENDANTS’ COLLECTIVE MOTION (1) TO DISMISS ALL CLASS 

COMPONENTS OF THE COMPLAINT AND (2) FOR A MORE DEFINITE

STATEMENT REGARDING NAMED PLAINTIFFS’ INDIVIDUAL CLAIMS

Pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), 12(e) and 23(d)(1)(D), 

Defendants1 respectfully move this Court (1) to dismiss all class components of the Amended 

Complaint (Docket No. 31) filed on October 3, 2014 on behalf of the City of Richmond, the City 

of Traverse City, Oakland County, Mecklenburg County, and the Village of Northport (“Named 

Plaintiffs”) and (2) order each Named Plaintiff to provide a more definite statement explaining 

its capacity and authority to assert claims in this case and to do so while being represented solely 

by private counsel. In support of this motion, Defendants state as follows:

1. Defendants base this motion upon the accompanying memorandum of law in support, 

the materials contained in the Appendix accompanying the memorandum, oral argument of 

 

1

 DENSO Corporation; DENSO International America, Inc.; Fujikura Ltd.; Furukawa 

Electric Co., Ltd.; American Furukawa, Inc.; G.S. Electech, Inc.; G.S.W. Manufacturing, Inc.; 

G.S. Wiring Systems, Inc.; Leoni Wiring Systems, Inc.; Leonische Holding Inc.; Sumitomo 

Electric Industries, Ltd.; Sumitomo Wiring Systems, Ltd.; Sumitomo Electric Wiring Systems, 

Inc.; K&S Wiring Systems, Inc.; Sumitomo Electric Wintec America, Inc.; Sumitomo Wiring 

Systems (U.S.A.) Inc.; Tokai Rika Co., Ltd.; TRAM, Inc.; Yazaki Corporation; and Yazaki 

North America, Inc.

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counsel, and such other and further material as the Court may consider.

2. As further explained in the accompanying memorandum, there are three fundamental 

reasons why all of the class components of the Amended Complaint must be dismissed.

A. As a matter of law, all aspects of the Amended Complaint that purport to 

assert claims on behalf of States or their sovereign subunits (“State Entities”) must be 

dismissed pursuant to Fed. R. Civ. P. 12(b)(1), 12(b)(6), and 23(d)(1)(D). The sovereign 

immunity enjoyed by State Entities under the Eleventh Amendment to the U.S. 

Constitution bars inclusion of them in a class action absent their affirmative, clear and 

express consent, which the Amended Complaint fails to allege. 

B. As a matter of law, all claims asserted on behalf of absent government 

entities must be dismissed pursuant to Fed. R. Civ. P. 12(b)(6) and 23(d)(1)(D) because 

the Named Plaintiffs and their solely private counsel have not and cannot allege that they 

have the necessary authority to litigate on behalf of such entities and to usurp the role of 

those entities’ official government lawyers to represent them in court. 

D. The five Named Plaintiffs, who are located in only four States (and do not 

claim to have suffered injury elsewhere), lack any plausible standing or other basis to 

assert claims under the laws of thirteen other States to which they have no connection. 

As a matter of law, all claims asserted under the laws of those thirteen States (i.e.,

Arizona, Iowa, Maine, Maryland, Minnesota, Nebraska, Nevada, New Hampshire, New 

Mexico, North Dakota, South Dakota, West Virginia, and Wisconsin), must be dismissed 

pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). 

 3. The Amended Complaint does not allege whether or how any Named Plaintiff has 

approved its participation in this litigation or its representation by private counsel, and no 

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government attorney for any Named Plaintiff has appeared in this litigation. Pursuant to Fed. R. 

Civ. P. 12(e), the Court should order each of the Named Plaintiffs to provide a more definite 

statement regarding the steps (if any) their governing officers have taken to authorize them to 

pursue their own claims in this proceeding and to be represented by private counsel. 

4. As required by E.D. Mich. Local Rule 7.1(a), counsel for Defendants sought 

concurrence from Plaintiff’s counsel with respect to the relief sought by this motion, including in 

a teleconference on October 10, 2014. During that call, counsel for Defendants explained the 

nature of this motion and its legal basis and requested, but did not obtain, concurrence in the 

relief sought (i.e., dismissal of all class elements of the complaint and a more definite statement

from each Named Plaintiff).

Respectfully submitted.

October 31, 2014 By:

WILMER CUTLER PICKERING HALE 

AND DORR LLP

/s/ Steven F. Cherry 

Steven F. Cherry 

Patrick J. Carome 

David P. Donovan 

David S. Molot 

Brian C. Smith

Kurt G. Kastorf

WILMER CUTLER PICKERING HALE

AND DORR LLP

1875 Pennsylvania Avenue, NW 

Washington, DC 20006 

Telephone: (202) 663-6000 

Facsimile: (202) 663-6363 

steven.cherry@wilmerhale.com

patrick.carome@wilmerhale.com 

david.donovan@wilmerhale.com

david.molot@wilmerhale.com 

brian.smith@wilmerhale.com

kurt.kastorf@wilmerhale.com 

Attorneys for Defendants DENSO Corporation 

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and DENSO International America, Inc. 

Steven M. Zarowny (P33362)

General Counsel

DENSO INTERNATIONAL AMERICA, INC.

24777 Denso Drive 

Southfield, MI 48033 

Telephone: (248) 372-8252 

Facsimile: (248) 213-2551 

STEVE_ZAROWNY@denso-diam.com 

Attorney for Defendants DENSO International 

America, Inc. 

October 31, 2014 By:

ARNOLD & PORTER LLP

/s/ James L. Cooper (w/consent) 

James L. Cooper

Michael A. Rubin 

Laura Cofer Taylor 

Katherine Clemons

ARNOLD & PORTER LLP

555 Twelfth Street, NW 

Washington, DC 20004 

Telephone: (202) 942-5000 

Facsimile: (202) 942-5999 

james.cooper@aporter.com 

michael.rubin@aporter.com 

laura.taylor@aporter.com

katherine.clemons@aporter.com 

Joanne Geha Swanson (P33594) 

Fred Herrmann (P49519) 

Matthew L. Powell (P69186) 

KERR, RUSSELL AND WEBER, PLC

500 Woodward Avenue, Suite 2500 

Detroit, MI 48226 

Telephone: (313) 961-0200 

Facsimile: (313) 961-0388 

jswanson@kerr-russell.com

fherrmann@kerr-russell.com

mpowell@kerr-russell.com

Attorneys for Defendant Fujikura Ltd. 

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October 31, 2014 By:

LANE POWELL PC

/s/ Larry S. Gangnes (w/consent) 

Larry S. Gangnes 

LANE POWELL PC

1420 Fifth Avenue, Suite 4200 

P.O. Box 91302 

Seattle, WA 98111 

Telephone: (206) 223-7000 

Facsimile: (206) 223-7107 

gangnesl@lanepowell.com 

Craig D. Bachman

Kenneth R. Davis II 

Darin M. Sands 

Masayuki Yamaguchi

LANE POWELL PC

ODS Tower

601 SW Second Avenue, Suite 2100 

Portland, OR 97204 

Telephone: (503) 778-2100 

Facsimile: (503) 778-2200 

bachmanc@lanepowell.com 

davisk@lanepowell.com 

sandsd@lanepowell.com

yamaguchim@lanepowell.com 

Richard Bisio (P30246) 

Ronald S. Nixon (P57117) 

KEMP KLEIN LAW FIRM

201 West Big Beaver Road, Suite 600 

Troy, MI 48084 

Telephone: (248) 528-1111 

Facsimile: (248) 528-5129 

richard.bisio@kkue.com 

ron.nixon@kkue.com 

Attorneys for Defendants Furukawa Electric Co., 

Ltd. and American Furukawa, Inc.

October 31, 2014 By:

PORTER WRIGHT MORRIS & 

ARTHUR LLP

/s/ Donald M. Barnes (w/consent) 

Donald M. Barnes

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Jay L. Levine

Molly S. Crabtree 

John C. Monica, Jr. 

Jason E. Starling 

PORTER WRIGHT MORRIS & 

ARTHUR LLP

1900 K Street, NW, Suite 1110 

Washington, DC 20006 

Telephone: (202) 778-3000 

Facsimile: (202) 778-3063 

dbarnes@porterwright.com 

jlevine@porterwright.com

mcrabtree@porterwright.com 

jmonica@porterwright.com 

jstarling@porterwright.com

Attorneys for Defendants G.S. Electech, Inc., 

G.S.W. Manufacturing, Inc., and G.S. Wiring 

Systems, Inc.

October 31, 2014 By:

O’MELVENY & MYERS LLP

/s/ Michael F. Tubach (w/consent) 

Michael F. Tubach 

O’MELVENY & MYERS LLP

Two Embarcadero Center, 28th Floor 

San Francisco, CA 94111 

Telephone: (415) 984-8700 

Facsimile: (415) 984-8701 

mtubach@omm.com 

Michael R. Turco

BROOKS WILKINS SHARKEY & TURCO 

PLLC

401 South Old Woodward, Suite 400 

Birmingham, MI 48009 

turco@bwst-law.com 

Telephone: (248) 971-1713 

Facsimile: (248) 971-1801 

Attorneys for Defendants Leoni Wiring Systems, 

Inc. and Leonische Holding Inc. 

LATHAM & WATKINS LLP

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October 31, 2014 By: /s/ Marguerite M. Sullivan (w/consent) 

Marguerite M. Sullivan

LATHAM & WATKINS

555 Eleventh Street NW, Suite 1000 

Washington, DC 20004 

Telephone: (202) 637-2200 

Facsimile: (202) 637-2201 

marguerite.sullivan@lw.com

Daniel M. Wall

LATHAM & WATKINS

505 Montgomery Street, Suite 2000 

San Francisco, CA 94111 

Telephone: (415) 395-0600 

Facsimile: (415) 395-8095 

dan.wall@lw.com 

William H. Horton (P31567)

GIARMARCO, MULLINS & HORTON, P.C.

101 West Big Beaver Road, Tenth Floor 

Troy, MI 48084-5280 

Telephone: (248) 457-7060 

Facsimile: (248) 457-7001 

bhorton@gmhlaw.com 

Attorneys for Defendants Sumitomo Electric 

Industries, Ltd., Sumitomo Wiring Systems, Ltd., 

Sumitomo Electric Wiring Systems, Inc., K&S 

Wiring Systems, Inc., Sumitomo Electric Wintec 

America, Inc., and Sumitomo Wiring Systems 

(U.S.A.) Inc. 

October 31, 2014 By:

BUTZEL LONG

/s/ David F. DuMouchel (w/consent) 

David F. DuMouchel 

Sheldon H. Klein 

George B. Donnini 

BUTZEL LONG

150 West Jefferson, Suite 100 

Detroit, MI 48226 

Telephone: (313) 225-7000 

Facsimile: (313) 225-7080 

dumouched@butzel.com

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klein@butzel.com

donnini@butzel.com 

W. Todd Miller 

BAKER & MILLER PLLC

2401 Pennsylvania Avenue, NW 

Suite 300 

Washington, DC 20037 

Telephone: (202) 663-7820 

Facsimile: (202) 663-7849 

TMiller@bakerandmiller.com

Attorneys for Defendants TRAM, Inc. and 

Tokai Rika Co., Ltd. 

October 31, 2014 By:

JONES DAY

/s/ John M. Majoras (w/consent) 

John M. Majoras 

Michael R. Shumaker

Carmen G. McLean

Tiffany D. Lipscomb-Jackson

JONES DAY

51 Louisiana Avenue, NW 

Washington, DC 20001-2113 

Telephone: (202) 879-3939 

Facsimile: (202) 626-1700 

jmmajoras@jonesday.com

mrshumaker@jonesday.com 

cgmclean@jonesday.com

tdlipscombjackson@jonesday.com 

Michelle K. Fischer

Stephen J. Squeri 

JONES DAY

North Point 

901 Lakeside Avenue 

Cleveland, OH 44114 

Telephone: (216) 586-3939 

Facsimile: (216) 579-0212 

mfischer@jonesday.com

sjsqueri@jonesday.com 

Attorneys for Defendants Yazaki Corporation and 

Yazaki North America, Inc.

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

IN RE: AUTOMOTIVE PARTS 

ANTITRUST LITIGATION

:

: 

:

Master File No. 12-md-02311

Honorable Marianne O. Battani

In Re: Wire Harness Cases

:

: 

:

THIS DOCUMENT RELATES TO:

Public Entities

:

: 

: 

:

2:14-cv-00106-MOB-MKM

Oral Argument Scheduled for 

January 28, 2015

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF

DEFENDANTS’ COLLECTIVE MOTION (1) TO DISMISS ALL CLASS 

COMPONENTS OF THE COMPLAINT AND (2) FOR A MORE DEFINITE

STATEMENT REGARDING NAMED PLAINTIFFS’ INDIVIDUAL CLAIMS

2:14-cv-00106-MOB-MKM Doc # 36 Filed 10/31/14 Pg 9 of 61 Pg ID 274
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STATEMENT OF THE ISSUES PRESENTED

 1. Whether the Court has jurisidiction under the Eleventh Amendment and principles 

of sovereign immunity to hear Plaintiffs’ claims on behalf of absent States and their sovereign 

subunits. 

 2. Whether private Plaintiffs’ counsel can allege claims on behalf of States, counties, 

cities, and other municipalities without the authorization and involvement of those entities’ 

respective government attorneys.

 3. Whether each Named Plaintiff should be ordered, pursuant to Fed. R. Civ. P 

12(e), to provide a more definite statement regarding the steps (if any) its governing officers 

have taken to authorize it to pursue its individual claims in this proceeding and to be represented 

by private counsel in lieu of its official government counsel. 

4. Whether the five Named Plaintiffs have constitutional standing to assert injury 

under the laws of thirteen States in which they are neither located nor claim to have suffered 

injury. 

 5. Whether the fundamental defects in the Amended Complaint warrant immediate 

dismissal of all claims asserted on behalf of absent government entities. 

2:14-cv-00106-MOB-MKM Doc # 36 Filed 10/31/14 Pg 10 of 61 Pg ID 275
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STATEMENT OF CONTROLLING OR MOST APPROPRIATE AUTHORITIES

I. The Eleventh Amendment Requires Dismissal Of All Claims Asserted On Behalf Of 

States And Their Sovereign Subunits

• U.S. Const. Amend. XI 

• DLX, Inc. v. Kentucky, 381 F.3d 511 (6th Cir. 2004) 

• Thomas v. FAG Bearings Corp., 50 F.3d 502 (8th Cir. 1995) 

• Touvell v. Ohio Dep’t of Mental Retardation & Developmental Disabilities, 422 F.3d 392 

(6th Cir. 2005) 

• Starkey ex rel. A.B. v. Boulder Country Social Servs., 569 F.3d 1244 (10th Cir. 2009) 

• Walker v. Liggett Group, Inc., 982 F. Supp. 1208 (S.D. W. Va. 1997) 

II. The Class Allegations Must Be Dismissed Because Absent Government Entities 

Have Their Own Statutorily Appointed Legal Representatives Whose Roles May 

Not Be Usurped By Private Counsel

• County of Cook ex rel. Rifkin v. Bear Stearns & Co., 831 N.E.2d 563 (Ill. 2005) 

• Dallas County v. Merscorp, Inc., 2012 WL 6208385 (N.D. Tex. Dec. 13, 2012) 

• McCloy v. Correction Med. Servs., 2008 WL 5350623 (E.D. Mich. 2008) 

• Walker v. Liggett Group, Inc., 982 F. Supp. 1208 (S.D. W. Va. 1997) 

• Fed. R. Civ. P. 12(e) 

Arizona 

• Ariz. Rev. Stat. § 41-192 

• 1989 Ariz. Op. Att’y Gen. 44 

California

• Cal. Gov’t Code § 25203 

• City of Richmond Charter, art. IV, § 3 

• City of Richmond Code 2.52.320(a) 

• City of San Diego City Charter, Article V, Section 40 

• Oakland City Charter, Article IV, Section 401(6) 

• Palo Alto Municipal Code, Title 2, Section 2.08.120 

• Merced County v. Cook, 52 P. 721 (Cal. 1898) 

• People v. Parmar, 104 Cal. Rptr. 2d 31 (Cal. App. 2001) 

Maine

• Me. Rev. Stat. tit. 5, § 191(3) 

• Duckworth v. Deane, 903 A.2d 883 (Me. 2006) 

Maryland

• Md. Code, State Gov’t § 6-106 

• Martin v. Thornburg, 359 S.E.2d 472 (N.C. 1987) 

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Michigan

• Mich. Comp. Laws § 14.28 

• Mich. Comp. Laws § 45.563(e) 

• Mich. Comp. Laws § 49.153 

• Mich. Comp. Laws § 49.71 

• Mich. Comp. Laws § 87.20 

• Charter of the City of Alpena § 7.8(b) 

• Charter of the City of Buchanan § 4.16(b) 

• Charter of the City of Cheboygan § 7.5(b) 

• Charter of the City of Dearborn Heights § 5.13 

• Charter of the City of Hillsdale § 4.15(b) 

• Charter of the City of Traverse City § 47 

• Bay County Exec. v. Bay County Bd. of Comm’rs, 443 N.W.2d 168 (Mich. App. 1989) 

• In re Certified Question, 638 N.W.2d 409 (Mich. 2002) 

• Wayne County Prosecuting Att’y v. Wayne County Bd. of Comm’rs, 205 N.W.2d 27 

(Mich. App. 1972) 

Minnesota 

• Minn. Stat. § 8.01 

• State ex rel. Peterson v. City of Fraser, 254 N.W. 776 (Minn. 1934) 

New Mexico

• N.M. Stat. § 8-5-2(B) 

• Abreu v. New Mexico Children, Youth and Families Dep’t, 646 F. Supp. 2d 1259 

(D.N.M. 2009) 

New York

• N.Y. Exec. Law § 63(1) 

• N.Y. Second Class Cities Law § 201 

• N.Y. Town Law § 65 

• N.Y. Village Law § 4-400(1)(d) 

• Morgan v. New York State Dep’t of Envtl. Conservation, 779 N.Y.S.2d 643 (N.Y. App. 

Div. 2004) 

• County of Sullivan v. Town of Thompson, 471 N.Y.S.2d 399 (N.Y. App. Div. 1984) 

• Incorporated Village of Northport v. Town of Huntington, 604 N.Y.S.2d 587 (N.Y. App. 

Div. 1993) 

• Town of Claverack v. Brew, 716 N.Y.S.2d 748 (N.Y. App. Div. 2000) 

North Carolina 

• N.C. Gen. Stat. § 114-2(1) 

• N.C. Gen. Stat. § 153A-11 

• N.C. Gen. Stat. § 153A-12 

• N.C. Gen. Stat. § 153A-114 

• N.C. Gen. Stat. § 160A-173 

• City of Winston-Salem Code § 2-318(a) 

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• Town of Mint Hill Charter § 5.2 

• Town of Wake Forest Charter § 6.2 

• Bethune v. County of Harnett, 507 S.E.2d 40 (N.C. 1998) 

• Martin v. Thornburg, 359 S.E.2d 472 (N.C. 1987) 

West Virginia

• W. Va. Code § 5-3-2 

• State ex rel. McGraw v. Burton, 569 S.E.2d 99 (W.Va. 2002) 

III. All Claims Under The Law Of States In Which No Named Plaintiff Is Located Or 

Claims Injury Must Be Dismissed

• Md. Code, Com. Law § 11-209(b)(2)(ii)

• Davidson v. Microsoft Corp., 792 A.2d 336 (Md. Ct. Spec. App. 2002) 

• In re Ditropan XL Antitrust Litig., 529 F. Supp. 2d 1098 (N.D. Cal. 2007) 

• In re Packaged Ice Antitrust Litig., 779 F. Supp. 2d 642 (E.D. Mich. 2011) 

• In re Potash Antitrust Litig., 667 F. Supp. 2d 907 (N.D. Ill. 2009) 

• In re Refrigerant Compressors Antitrust Litig., 2012 WL 2917365 (E.D. Mich. July 17, 

2012) 

• In re Wellbutrin XL Antitrust Litig., 260 F.R.D. 143 (E.D. Pa. 2009) 

• Lewis v. Casey, 518 U.S. 343 (1996) 

• Smith v. Lawyers Title Ins. Corp., 2009 WL 514210 (E.D. Mich. Mar. 2, 2009) 

IV. These Jurisdictional And Other Threshold Defects Should Be Addressed Now

• Hansberry v. Lee, 311 U.S. 32 (1940) 

• In re Lithium Ion Batteries Antitrust Litigation, 2014 WL 4955377 (N.D. Cal. Oct. 2, 

2014) 

• Sagers v. Yellow Freight Sys., Inc., 68 F.R.D. 686 (N.D. Ga. 1975) 

• Walker v. Liggett Group, Inc., 982 F. Supp. 1208 (S.D. W. Va. 1997) 

• Fed. R. Civ. P. 23(d)(1)(D) 

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TABLE OF CONTENTS

STATEMENT OF THE ISSUES PRESENTED ............................................................................. i 

STATEMENT OF CONTROLLING OR MOST APPROPRIATE AUTHORITIES ................... ii

TABLE OF AUTHORITIES ......................................................................................................... vi 

INDEX OF EXHIBITS ................................................................................................................ xiii

INTRODUCTION ...........................................................................................................................1

STATEMENT OF FACTS ..............................................................................................................3

ARGUMENT ...................................................................................................................................7

I. THE ELEVENTH AMENDMENT REQUIRES DISMISSAL OF ALL CLAIMS 

ASSERTED ON BEHALF OF STATES AND THEIR SOVEREIGN SUBUNITS..........7

II. THE CLASS ALLEGATIONS MUST BE DISMISSED BECAUSE ABSENT 

GOVERNMENT ENTITIES HAVE THEIR OWN STATUTORILY APPOINTED 

LEGAL REPRESENTATIVES WHOSE ROLES MAY NOT BE USURPED BY 

PRIVATE COUNSEL .......................................................................................................12

A. The States May Be Represented Only By Their Duly Appointed Or Elected 

Government Attorneys—The Attorneys General ..................................................12

B. Counties, Cities, And Other Municipal Corporations Also Must Be 

Represented By Their Own Official Government Attorneys ................................16

C. Dismissal Of All Claims Of Absent Class Members Is Necessary To Avoid 

Wholesale Violations Of These Numerous State And Local Laws .......................22

D. Named Plaintiffs Should Be Ordered To Provide A More Definite 

Statement Demonstrating That They Have Been Duly Authorized To 

Commence This Litigation And To Be Represented By Private Counsel .............24

III. ALL CLAIMS UNDER THE LAW OF STATES IN WHICH NO NAMED 

PLAINTIFF IS LOCATED OR CLAIMS INJURY MUST BE DISMISSED .................26

IV. THESE JURISDICTIONAL AND OTHER THRESHOLD DEFECTS SHOULD 

BE ADDRESSED NOW ...................................................................................................29

CONCLUSION ..............................................................................................................................32

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TABLE OF AUTHORITIES

Page(s) 

CASES

Abreu v. New Mexico Children, Youth & Families Department, 

646 F. Supp. 2d 1259 (D.N.M. 2009) ......................................................................................15

Angel v. Kentucky, 

314 F.3d 262 (6th Cir. 2002) ...................................................................................................11

Ashcroft v. Iqbal, 

556 U.S. 662 (2009) .................................................................................................................26

Associated General Contractors of California, Inc. v. California State Council of 

Carpenters, 

459 U.S. 519 (1983) .................................................................................................................30 

Atascadero State Hospital v. Scanlon, 

473 U.S. 234 (1985) .................................................................................................................11

Bay County Executive v. Bay County Board of Commissioners, 

443 N.W.2d 168 (Mich. App. 1989) ..................................................................................19, 25

Bell Atlantic Corp. v. Twombly, 

550 U.S. 544 (2007) .................................................................................................................26

Bethune v. County of Harnett, 

507 S.E.2d 40 (N.C. 1998) .......................................................................................................25 

California ex rel. Lockyer v. Dynegy, Inc., 

375 F.3d 831 (9th Cir. 2004) .....................................................................................................8 

College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 

527 U.S. 666 (1999) ...................................................................................................................9

County of Cook ex rel. Rifkin v. Bear Stearns & Co., 

831 N.E.2d 563 (Ill. 2005) .......................................................................................................23 

County of Sullivan v. Town of Thompson, 

471 N.Y.S.2d 399 (N.Y. App. Div. 1984) ...............................................................................17 

Coventry School Committee v. Richtarik, 

411 A.2d 912 (R.I. 1980) .........................................................................................................22 

Dallas County, Texas v. Merscorp, Inc., 

No. 11-cv-02733, 2012 WL 6208385 (N.D. Tex. Dec. 13, 2012) ...........................................23

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Davidson v. Microsoft Corp., 

792 A.2d 336 (Md. Ct. Spec. App. 2002) ................................................................................27 

DLX, Inc. v. Kentucky, 

381 F.3d 511 (6th Cir. 2004) ...................................................................................................11

Duckworth v. Deane, 

903 A.2d 883 (Md. 2006) ........................................................................................................15 

Ex parte Ayers, 

123 U.S. 443 (1887) .................................................................................................................11

Ex parte Young, 

209 U.S. 123 (1908) ...................................................................................................................8

Hansberry v. Lee, 

311 U.S. 32 (1940) ...................................................................................................................31

Hevesi v. Pataki, 

643 N.Y.S.2d 895 (N.Y. Sup. Ct. 1996) ..................................................................................18 

In re Automotive Parts Antitrust Litigation, 

Nos. 12-cv-00102 & 00103, 2013 WL 2456612 (E.D. Mich. June 6, 2013).......................7, 27 

In re Automotive Parts Antitrust Litigation, 

Nos. 12-cv-00202 & 00203, 2014 WL 2993753 (E.D. Mich. July 3, 2014) ...........................27 

In re Automotive Parts Antitrust Litigation, 

Nos. 12-cv-00302 & 00303, 2014 WL 2993742 (E.D. Mich. July 3, 2014) ...........................27 

In re Auto. Parts Antitrust Litigation, 

Nos. 12-cv-00402 & 00403, 2014 WL 2999269 (E.D. Mich. July 3, 2014) ...........................27 

In re Certified Question, 

638 N.W.2d 409 (Mich. 2002) .................................................................................................14

In re Ditropan XL Antitrust Litigation, 

529 F. Supp. 2d 1098 (N.D. Cal. 2007) ...................................................................................29 

In re Lithium Ion Batteries Antitrust Litigation, 

No. 13-md-02420, 2014 WL 4955377 (N.D. Cal. Oct. 2, 2014) ...................................3, 30, 31 

In re Packaged Ice Antitrust Litigation, 

779 F. Supp. 2d 642 (E.D. Mich. 2011) ...................................................................................29 

In re Potash Antitrust Litigation, 

667 F. Supp. 2d 907 (N.D. Ill. 2009) .......................................................................................29 

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In re Refrigerant Compressors Antitrust Litigation, 

No. 09-md-02042, 2012 WL 2917365 (E.D. Mich. July 17, 2012) ................................... 28-29 

In re Estate of Thompson, 

414 A.2d 881 (Me. 1980) .........................................................................................................15 

In re McKesson Governmental Entities Average Wholesale Price Litigation, 

767 F. Supp. 2d (D. Mass. 2011) ...............................................................................................9

In re Wellbutrin XL Antitrust Litigation, 

260 F.R.D. 143 (E.D. Pa. 2009) ...............................................................................................29 

Incorporated Village of Northport v. Town of Huntington, 

604 N.Y.S.2d 587 (N.Y. App. Div. 1993) ...............................................................................25

Jackson v. CitiMortgage, 

No. 10-14221, 2011 WL 479923 (E.D. Mich. Feb. 4, 2011) .....................................................7

Johnson v. University of Cincinnati, 

215 F.3d 561 (6th Cir. 2000) .....................................................................................................8

Lawson v. Shelby County, Tennessee, 

211 F.3d 331 (6th Cir. 2000) .....................................................................................................8

Lewis v. Casey, 

518 U.S. 343 (1996) .................................................................................................................28 

Martin v. Thornburg, 

359 S.E.2d 472 (N.C. 1987) .....................................................................................................14 

McCloy v. Correction Medical Services, 

No. 07-13839, 2008 WL 5350623 (E.D. Mich. 2008) .............................................................24 

Merced County v. Cook, 

52 P. 721 (Cal. 1898) ...............................................................................................................23 

Mikhail v. Kahn, 

991 F. Supp. 2d 596 (E.D. Pa. 2014) .........................................................................................8

Morgan v. New York State Department of Environmental Conservation, 

779 N.Y.S.2d 643 (N.Y. App. Div. 2004) ...............................................................................13

New York ex rel. Boardman v. National Railroad Passenger Corp., 

233 F.R.D. 259 (N.D.N.Y. 2006).............................................................................................13

Pelt v. Utah, 

539 F.3d 1271 (10th Cir. 2008) ...............................................................................................31

2:14-cv-00106-MOB-MKM Doc # 36 Filed 10/31/14 Pg 17 of 61 Pg ID 282
ix

People v. Parmar, 

104 Cal. Rptr. 2d 31 (Cal. Ct. App. 2001) ...............................................................................21 

Police Officers Assocation of Michigan v. Oakland County, 

354 N.W.2d 367 (Mich. Ct. App. 1984) ..................................................................................25 

Port Authority Trans-Hudson Corp. v. Feeney, 

495 U.S. 299 (1990) .................................................................................................................11

Pucci v. Nineteenth District Court, 

628 F.3d 752 (6th Cir. 2010) .................................................................................................7, 8

RMI Titanium Co. v. Westinghouse Electric Corp., 

78 F.3d 1125 (6th Cir. 1996) .....................................................................................................7

Rosen v. Tennessee Commissioner of Finance & Administration, 

288 F.3d 918 (6th Cir. 2002) ...................................................................................................28 

Sagers v. Yellow Freight Systems, Inc., 

68 F.R.D. 686 (N.D. Ga. 1975) ................................................................................................31

Smith v. Lawyers Title Insurance Corp., 

No. 07-12124, 2009 WL 514210 (E.D. Mich. Mar. 2, 2009) ..................................................29 

Sobel v. Hertz Corp., 

No. 06-cv-00545, 2011 WL 2559565 (D. Nev. June 27, 2011) ................................................9

Starkey ex rel. A.B. v. Boulder County Social Services, 

569 F.3d 1244 (10th Cir. 2009) ...............................................................................................11

State ex rel. McGraw v. Burton, 

569 S.E.2d 99 (W. Va. 2002) ............................................................................................. 15-16 

State ex rel. Peterson v. City of Fraser, 

254 N.W. 776 (Minn. 1934).....................................................................................................15

Thomas v. FAG Bearings Corp., 

50 F.3d 502 (8th Cir. 1995) .........................................................................................2, 8, 9, 10

Tietsworth v. Sears, Roebuck & Co., 

720 F. Supp. 2d 1123 (N.D. Cal. 2010) ...................................................................................30

Touvell v. Ohio Department of Mental Retardation & Developmental Disabilities, 

422 F.3d 392 (6th Cir. 2005) ...................................................................................................11

Town of Claverack v. Brew, 

716 N.Y.S.2d 748 (N.Y. App. Div. 2000) ....................................................................... passim

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Walker v. Liggett Group, Inc., 

982 F. Supp. 1208 (S.D. W. Va. 1997) ............................................................................ passim

Wayne County Prosecuting Attorney v. Wayne County Board of Commissioners, 

205 N.W.2d 27 (Mich. App. 1972) ..........................................................................................19 

CONSTITUTIONS

U.S. Const. Amend. XI ......................................................................................1, 7, 8, 9, 10, 11, 12 

STATUTES

Ariz. Rev. Stat. § 41-192 ...............................................................................................................14 

Cal. Gov’t Code § 25203 ...............................................................................................................21 

Md. Code, Com. Law § 11-209(b)(2)(ii) .......................................................................................27 

Md. Code, State Gov’t § 6-106 ......................................................................................................15

Me. Rev. Stat. tit. 5, § 191(3) ........................................................................................................14

Mich. Comp. Laws § 14.28 ............................................................................................................14 

Mich. Comp. Laws § 45.563(e) .....................................................................................................19 

Mich. Comp. Laws § 49.153 ..........................................................................................................19 

Mich. Comp. Laws § 49.71 ......................................................................................................19, 25 

Mich. Comp. Laws § 87.20 ......................................................................................................20, 25 

Minn. Stat. § 8.01 ...........................................................................................................................15

N.C. Gen. Stat. § 114-2(1) .............................................................................................................13 

N.C. Gen. Stat. § 153A-11 .............................................................................................................25 

N.C. Gen. Stat. § 153A-12 .............................................................................................................25 

N.C. Gen. Stat. § 153A-114 ...........................................................................................................21 

N.C. Gen. Stat. § 160A-173 ...........................................................................................................21 

N.M. Stat. § 8-5-2(B) .....................................................................................................................15

N.Y. County Law §§ 500-501........................................................................................................17 

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N.Y. Exec. Law § 63(1) ................................................................................................................13 

N.Y. Second Class Cities Law § 201 .............................................................................................18 

N.Y. Town Law § 65 .....................................................................................................................17

N.Y. Village Law § 4-400(1)(d) ...................................................................................................25

W. Va. Code § 5-3-2 ......................................................................................................................15 

LOCAL CODES AND CHARTERS

Michigan 

Charter of the City of Alpena § 7.8(b) .....................................................................................20 

Charter of the City of Buchanan § 4.16(b) ..............................................................................20 

Charter of the City of Cheboygan § 7.5(b) ..............................................................................20 

Charter of the City of Dearborn Heights § 5.13 .......................................................................20 

Charter of the City of Hillsdale § 4.15(b) ................................................................................20 

Charter of the City of Traverse City § 47 ................................................................................25 

California

City of Richmond Charter, art. IV, § 3 ................................................................................4, 25 

City of Richmond Code 2.52.320(a) ........................................................................................25 

City of San Diego City Charter, Article V, Section 40 ............................................................21 

Oakland City Charter, Article IV, Section 401(6) ...................................................................21 

Palo Alto Municipal Code, Title 2, Section 2.08.120 ..............................................................21 

New York

Buffalo City Charter § 12-4 .....................................................................................................18 

New York City Charter § 394(a) .............................................................................................18 

Syracuse City Charter § 5-1101(3) ..........................................................................................18 

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North Carolina 

City of Winston-Salem Code § 2-318(a) .................................................................................21 

Town of Mint Hill Charter § 5.2 ....................................................................................... 21-22 

Town of Wake Forest Charter § 6.2 .........................................................................................22 

RULES

Federal Rule of Civil Procedure 12(b)(1) ......................................................................7, 10, 11, 32 

Federal Rule of Civil Procedure 12(b)(6) ......................................................................................32 

Federal Rule of Civil Procedure 12(e) ...............................................................................24, 26, 32 

Federal Rule of Civil Procedure 23(d) ...............................................................................10, 30, 32 

OTHER

1989 Ariz. Op. Att’y Gen. 44 ........................................................................................................14 

56 Am. Jur. 2d Municipal Corporations, Etc. § 194 .....................................................................22 

McQuillin: The Law of Municipal Corporations (3d ed. 1966) ....................................................22 

Michigan Municipal League, Member Resource Services, “Charter Commissioners 

Handbook: Structure of Local Government” ...........................................................................20 

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INDEX OF EXHIBITS

EXHIBIT A October 9, 2014 Letter from Defendants to Plaintiffs regarding questions in 

advance of meet and confer

EXHIBIT B October 15, 2014 Letter from Plaintiffs to Defendants regarding response to 

Defendants’ questions 

EXHIBIT C Appendix of State Statutes and City Charters Cited in Part II of Memorandum 

of Points and Authorities

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INTRODUCTION

This motion raises issues never before briefed or decided by this Court in any case in the 

Auto Parts MDL. Five local government entities (the “Named Plaintiffs”), represented solely by 

private, non-governmental counsel, have filed a putative class action purportedly on behalf of 

nine States and thousands of local government entities (the latter from every State in the country) 

that indirectly purchased an automotive Wire Harness System during an asserted class period. 

No basis exists to believe that any government official with formal legal authority and 

responsibility to represent any of these thousands of absent government entities has authorized 

these private attorneys to assert and litigate claims on their behalf. And even with respect to the 

five Named Plaintiffs, nothing in the Amended Complaint even suggests the governing bodies or 

officials of these cities and counties authorized private counsel to commence this litigation. 

Defendants1

 therefore move to dismiss the Amended Complaint. 

The Amended Complaint requires dismissal for several reasons. First, without pleading 

facts to suggest that any State has affirmatively waived its sovereign immunity and consented to 

have its interests adjudicated in this Court, the Amended Complaint impermissibly asserts claims

on behalf of nine States and their sovereign sub-units. As explained in Part I, this violates the 

Eleventh Amendment to the U.S. Constitution, which bars a federal court from subjecting a State

or sovereign component of a State to its judicial processes without the State’s affirmative 

advance consent. Absent such consent, this Court lacks jurisdiction over Plaintiffs’ claims on 

 

1

 DENSO Corporation; DENSO International America, Inc.; Fujikura Ltd.; Furukawa 

Electric Co., Ltd.; American Furukawa, Inc.; G.S. Electech, Inc.; G.S.W. Manufacturing, Inc.; 

G.S. Wiring Systems, Inc.; Leoni Wiring Systems, Inc.; Leonische Holding Inc.; Sumitomo 

Electric Industries, Ltd.; Sumitomo Wiring Systems, Ltd.; Sumitomo Electric Wiring Systems, 

Inc.; K&S Wiring Systems, Inc.; Sumitomo Electric Wintec America, Inc.; Sumitomo Wiring 

Systems (U.S.A.) Inc.; Tokai Rika Co., Ltd.; TRAM, Inc.; Yazaki Corporation; and Yazaki 

North America, Inc.

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behalf of such entities. See, e.g., Walker v. Liggett Group, Inc., 982 F. Supp. 1208, 1210 (S.D. 

W. Va. 1997). These constitutional principles apply equally whether the State or its subunit

appears as a “plaintiff” or a “defendant” in the matter. See, e.g., Thomas v. FAG Bearings Corp., 

50 F.3d 502, 504-05 (8th Cir. 1995). Subsequent opt-out procedures at the class certification 

stage would not cure the constitutional violation, and immediate dismissal of all claims 

purportedly asserted on behalf of States and their sovereign subunits is therefore necessary.

Second, States, counties, municipalities and their various subunits typically are governed 

by statutes, charters and/or other laws that dictate that a particular public lawyer and official, 

such as an Attorney General or a County or City Attorney, will represent the entity in any court 

proceedings. As explained in Part II, allowing the Named Plaintiffs’ private lawyers to litigate 

claims belonging to numerous other government entities under the rubric of a class action would 

improperly usurp the roles and duties of these public lawyers and violate the rights of absentee

entities to be represented by their own officials. To avoid such a violation, the Court must 

dismiss all claims asserted on behalf of absent government entities. See, e.g., Town of Claverack 

v. Brew, 716 N.Y.S.2d 748, 750 (N.Y. App. Div. 2000). 

Third, the Amended Complaint inexplicably asserts claims under the laws of thirteen

States in which no Named Plaintiff is located or claims to have suffered injury. Am. Compl. 

¶¶ 217-250. As explained in Part III, the extent to which Named Plaintiffs are presenting claims 

under the laws of States to which they have no connection is far greater and more troubling here 

than in other auto-parts cases addressed earlier by this Court. That fact, together with Plaintiffs’ 

counsel’s lack of authorization to proceed on behalf of entities in those other States, requires 

dismissal of these claims for lack of standing. 

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Fourth, as explained in Part IV, important practical considerations militate heavily in 

favor of resolving these issues now. As another federal court in a similar multidistrict antitrust 

litigation recognized earlier this month, threshold dismissal of claims on behalf of a putative 

national class of government entities is necessary to avoid massive—but ultimately unneeded—

discovery and the potentially insurmountable burdens required to protect absent class members’ 

interests. In re Lithium Ion Batteries Antitrust Litig., No. 13-md-2420, 2014 WL 4955377, at 

*18 (N.D. Cal. Oct. 2, 2014). In addition, it would be impossible for any meaningful settlement 

negotiations to occur with respect to a putative class action in which (a) the named class

representatives and their private counsel lack legal authority and capacity to represent absent 

putative class members and (b) the Court lacks jurisdiction over many of the putative class 

members (such that even a court-approved class settlement could have no binding effect on 

them).

STATEMENT OF FACTS

The Amended Complaint alleges that, from 2000 to 2010, Defendants manufactured Wire 

Harness Systems and artificially raised their prices for these systems in violation of federal and 

state antitrust laws. Am. Compl ¶¶ 83-86. The Amended Complaint further alleges that the 

Named Plaintiffs were indirect purchasers of Wire Harness Systems and were harmed by paying 

supra-competitive prices for automobiles that included Wire Harness Systems. Am. Compl. 

¶¶ 29-33. 

In the original Complaint, the sole Named Plaintiff was the City of Richmond, California 

(“Richmond”). That pleading purported to define two plaintiff classes: first, a so-called 

“Nationwide Class” comprising “[a]ll states, state subdivisions, agencies and instrumentalities 

and local government subdivisions and agencies, including but not limited to municipalities, 

cities, counties and towns” that indirectly purchased Wire Harness Systems during the class 

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4 

period, for whom equitable and injunctive relief was sought, Compl. ¶ 170; and second, a socalled “Damages Class,” comprising all of the government entities in the Nationwide Class 

whose indirect purchases of Wire Harness Systems were made in any of eighteen “Relevant 

States,” for whom damages were sought under the laws of those States, id. ¶ 171. 

Although Richmond has a publicly appointed City Attorney,2 the only lawyers who 

appeared on the original Complaint were from private law firms. See Compl. at 106-08. The 

Complaint contained no indication that either Richmond or these private counsel had sought or 

obtained any consent or authorization from any States or other government entities to represent 

them in this proceeding, or that any arrangements were in place for Richmond’s City Attorney to 

supervise and control private counsel’s representation of Richmond. 

In March 2014, shortly after the original Complaint was filed, Richmond’s private 

counsel told Defendants that they would soon amend the Complaint to add one or more 

additional plaintiffs. Shortly thereafter, Defendants’ counsel advised Richmond’s private 

counsel that Defendants believed the original Complaint was defective and that, absent 

corrective amendments, they would move to dismiss on the grounds that are now set forth here. 

Although Richmond’s counsel told Defendants’ counsel that they would consider Defendants’ 

points and then get back to Defendants’ counsel, they never did so. 

The Amended Complaint, filed on October 3, 2014, adds four new Named Plaintiffs and 

redefines the classes of absent government entities that they purport to represent, but it does not 

solve any of the problems that Defendants identified with respect to the original Complaint. The 

 

2

 City of Richmond Charter, art. IV, § 3 (“Attorney. The Attorney shall act as the legal 

adviser of the Council and any officer of the City who requests his advice. ... He shall 

prosecute all violators of the City ordinances and shall represent the City in all actions.”). See 

also City of Richmond, City Attorney’s Office, http://www.ci.richmond.ca.us/Index.aspx?NID 

=58. 

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new Plaintiffs are Traverse City, Michigan; Oakland County, Michigan; Mecklenburg County, 

North Carolina; and Village of Northport, New York. Am. Compl. ¶¶ 30-34. The so-called 

“Nationwide Class” seeking equitable and injunctive relief has been redefined to exclude States 

or sovereign sub-units of States, but it still purports to include “[a]ll municipalities, cities, 

counties, villages, towns and other local government subdivisions, agencies, districts, special 

districts and public utilities that indirectly purchased in the United States from any Defendant ... 

an Automotive Wire Harness System not for resale.” Id. ¶ 156. 

The Amended Complaint also redefines the so-called “Damages Class” to exclude from 

that class half of the States (and their sovereign subunits) that had been included in the original 

Complaint’s corresponding class. The States now included as members of the “Damages Class” 

are Arizona, Maine, Maryland, Michigan, Minnesota, New Mexico, New York, North Carolina, 

and West Virginia, together with “their state subdivisions, agencies and instrumentalities.” Am. 

Compl. ¶ 157. With respect to non-State government entities, the Damages Class is now defined 

to include all “local government subdivisions and agencies, including but not limited to

municipalities, cities, counties, villages, towns, districts, special districts and public utilities” that 

indirectly purchased any Wire Harness System in any of seventeen “Relevant States.” These 

“Relevant States” include the nine States listed above, as well as California, Iowa, Nebraska, 

Nevada, New Hampshire, North Dakota, South Dakota, and Wisconsin. Id. 

Even though the Amended Complaint includes Named Plaintiffs from only four of the 

“Relevant States”—i.e., California, Michigan, New York and North Carolina—it purports to 

assert damages claims under the laws of all seventeen “Relevant States” on behalf of local

government entities in all of those States. In contrast, with respect to claims on behalf of States 

(and sovereign State sub-units), claims are now being asserted for only nine States. Id. ¶¶ 157, 

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6 

211-250. This hodge-podge of claims presents a number of anomalies—for example, why does 

Richmond believe it can represent a class that includes nine States other than California, but not 

its home State of California? The Amended Complaint explains none of them. 

Like the original Complaint, the Amended Complaint is not signed by anyone who holds 

an official, public position as counsel for any of the Named Plaintiffs or any of the thousands of 

absent government entities that they purport to represent. See Am. Compl. at 113-15. Indeed, 

even though Richmond and Traverse City each has a City Attorney, Oakland County has a 

Corporation Counsel, and the Village of Northport has a Village Attorney,3 none of those official 

government attorneys signed the Amended Complaint nor have any of them otherwise surfaced 

in these proceedings. The only additions to the ranks of private counsel appearing on the 

Amended Complaint are a solo practitioner based in Huntington, New York and a private law 

firm based in Charlotte, North Carolina. 

As part of the meet-and-confer process that preceded the present motion, Defendants’ 

counsel sent Plaintiffs’ private counsel a letter posing a number of questions pertaining to the 

Amended Complaint and the grounds for dismissal that Defendants’ counsel had previously 

raised in discussions concerning the original Complaint. Even though Defendants’ counsel 

indicated that answers to these questions could provide a basis for Defendants to limit the 

 

3

 Bruce Reed Goodmiller is the City Attorney for the City of Richmond. See City of 

Richmond, California, City Attorney’s Office, http://www.ci.richmond.ca.us/Index.aspx? 

NID=58. Lauren Trible-Laucht is the City Attorney for the City of Traverse City. See City of 

Traverse City, Michigan, City Attorney, http://www.traversecitymi.gov/attorney.asp. Keith 

Lerminiaux is Corporation Counsel for Oakland County. See Oakland County, Michigan, 

Patterson Appoints Lerminiaux Corporation Counsel, http://www.oakgov.com/news/Pages/ 

2013/pr_13_77.aspx. James Matthews is the Village Attorney for the Village of Northport. See 

Village of Northport, NY, Directory, http://www.northportny.gov/pages/directory.html. It is not 

clear if Mecklenburg County has a permanent position for County Attorney, but meetings of the 

County Board of Commissioners do identify Marvin Bethune as the County Attorney. See

Minutes of Mecklenburg County Board of Commissioners, Jan. 7, 2014, http://charmeck.org/ 

mecklenburg/county/countymanagersoffice/bocc/meetings/meeting%20minutes/m010714.pdf. 

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7 

grounds to be asserted in the present motion, Named Plaintiffs’ counsel flatly refused (with one 

exception) to answer any of them.4

ARGUMENT

I. THE ELEVENTH AMENDMENT REQUIRES DISMISSAL OF ALL CLAIMS

ASSERTED ON BEHALF OF STATES AND THEIR SOVEREIGN SUBUNITS

Before Plaintiffs may proceed with their claims on behalf of State Entities, they must 

demonstrate that this Court has jurisdiction. Jackson v. CitiMortgage, No. 10-14221, 2011 WL 

4799923, at *2 (E.D. Mich. Feb, 4, 2011) (citing RMI Titanium Co. v. Westinghouse Elec. Corp., 

78 F.3d 1125, 1134 (6th Cir. 1996)). To survive a factual attack on a motion to dismiss under 

Federal Rule of Civil Procedure 12(b)(1), Plaintiffs must demonstrate that each of these States 

has affirmatively authorized and consented to this Court’s jurisdiction for purposes of these 

claims. Plaintiffs cannot do so, and therefore their claims on behalf of State Entities violate the 

Eleventh Amendment to the U.S. Constitution and must be dismissed. 

The Eleventh Amendment prohibits lawsuits “against a State by citizens of the same 

State, claims against a State by citizens of another State, and actions against state officials sued 

in their official capacity for money damages.” Pucci v. Nineteenth Dist. Court, 628 F.3d 752, 

760 (6th Cir. 2010). The Eleventh Amendment also prohibits litigation that seeks to adjudicate 

 

4

 Copies of Defendants’ counsel’s letter and private Plaintiffs’ counsel’s written response 

are included as Exhibits A and B, respectively, in the accompanying Appendix. The one 

exception concerned Plaintiffs’ intent to assert claims under New Hampshire law arising from 

alleged conduct before January 1, 2008. Defendants advised Plaintiffs that if they intended to 

pursue such claims, Defendants would move to dismiss them on the ground that, as this Court 

previously ruled, the New Hampshire statute authorizing indirect purchaser actions does not 

apply retroactively to conduct occurring before the statute’s enactment date. See, e.g., In re 

Auto. Parts Antitrust Litig., 2013 WL 2456612, at *19 (E.D. Mich. June 6, 2013). In their 

response, Plaintiffs conceded that they “do not assert claims under New Hampshire Revised 

Statutes secs. 356:1, et seq. for any conduct that occurred prior to January 1, 2008.” See Ex. B. 

On the basis of that representation—to which Plaintiffs should be held—Defendants do not 

include this ground in this motion.

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8 

offensive claims on behalf of non-consenting State Entities. Thomas v. FAG Bearings Corp., 50 

F.3d 502, 505 (8th Cir. 1995) (“Involuntary joinder” of a State agency on the plaintiff side of a 

lawsuit violates the Eleventh Amendment because such joinder would “forc[e] [the agency] to 

prosecute [defendants] at a time and place dictated by the federal courts.”); California ex rel. 

Lockyer v. Dynegy, Inc., 375 F.3d 831, 849 n.14 (9th Cir. 2004) (“[I]nvoluntary joinder of a State 

as a party to a litigation can violate Eleventh Amendment sovereign immunity.”); Mikhail v. 

Kahn, 991 F. Supp. 2d 596, 639 n.33 (E.D. Pa. 2014) (“Eleventh Amendment sovereign 

immunity” bars joining State as “involuntary plaintiff” in civil action). 

The immunity afforded by the amendment applies not only to the State itself, but also to 

any arm of the State, such as state agencies, state universities, and many other types of state 

governmental subunits. Johnson v. University of Cincinnati, 215 F.3d 561, 571 (6th Cir. 2000); 

Pucci, 628 F.3d at 760 (applying four-factor test to determine whether an entity is an “arm of the 

state” that enjoys immunity under the Eleventh Amendment).5

 The Sixth Circuit recognizes only 

three limited exceptions to Eleventh Amendment immunity. Lawson v. Shelby County, Tenn., 

211 F.3d 331, 334 (6th Cir. 2000). “First, a state may waive the protection of the Amendment by 

consenting to the suit.” Id. Second, Congress, under certain provisions of the Constitution, may 

abrogate the sovereign immunity of States through statute. Id. Third, a federal court may enjoin 

a ‘state official’ from violating federal law. Id. at 335 (citing Ex parte Young, 209 U.S. 123 

(1908)). None of these exceptions applies here.

Unless a State voluntarily invokes the court’s jurisdiction, or makes a “clear declaration” 

that it chooses to be subject to the court’s jurisdiction, it has not waived sovereign immunity. 

 

5

 This memorandum uses the term “State Entities” to refer to States and all subunits of 

States that qualify for Eleventh Amendment protection under the principles set forth by the Sixth 

Circuit in Pucci and Johnson. 

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9 

College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 676 

(1999). This “stringent” standard, id. at 675, is necessary to protect each State’s “autonomy in 

decision-making”—choosing when, where, how, and even whether to participate in a court 

proceeding that may affect its interests. Thomas, 50 F.3d at 505-06. 

These principles apply with full force in the class action context. Thus, in Walker v. 

Liggett Group, Inc., 982 F. Supp. 1208, 1210 (S.D. W. Va. 1997), a class action against a 

cigarette manufacturer, the court dismissed all claims asserted on behalf of State Entities because 

the Eleventh Amendment bars subjecting them to litigation in which they “have not consented 

affirmatively to participate.” See also In re McKesson Governmental Entities Average 

Wholesale Price Litigation, 767 F. Supp. 2d 263, 271 (D. Mass. 2011) (“[S]ignificant 

sovereignty issues may preclude defining a class to include state entities as absent class members 

under the Eleventh Amendment.”)6

; Sobel v. Hertz Corp., No. 06-cv-00545, 2011 WL 2559565, 

at *16 (D. Nev. June 27, 2011) (Nevada state agency excluded from plaintiff class by agreement 

of parties after it objected to inclusion in class based on “Eleventh Amendment sovereign 

immunity”). In fact, Defendants’ research has not identified any reported cases in which a court 

has allowed a putative class action to proceed on behalf of a class that includes absent State 

Entities in the face of an Eleventh Amendment objection. Nor have Plaintiffs identified any such 

authority during pre-motion meet and confers.

Walker is especially relevant here. Near the outset of that case, and before any 

participant had raised any issue concerning the Eleventh Amendment or sovereign immunity, the 

court had issued an order that preliminarily certified a plaintiff settlement class that purported to 

 

6 In McKesson, the district court elected not to reach the Eleventh Amendment issue 

because it determined there were other, non-constitutional reasons why a plaintiff class should 

not include State Entities. 767 F. Supp. 2d at 271. 

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10 

include all State Entities with a particular type of claim against the defendant, but that also 

provided all State Entities a right to opt out. Walker, 982 F. Supp. at 1209. At that point, eleven 

States and their subunits moved to be dismissed from the litigation for lack of jurisdiction on the 

ground that they were being “cast as unwilling Plaintiffs” in contravention of their sovereign 

immunity. Id. at 1209-10. The district court granted the motion to dismiss, reasoning that the 

State Entities had never “affirmatively consented to opt into the Settlement class.” Id. at 1210. 

The court rejected the notion that availability of an opt-out mechanism could somehow rectify 

the Eleventh Amendment violation: “For this Court merely to ‘opt out’ the States that have 

objected to this Court’s preliminary findings would suggest the Court claims jurisdiction over the 

States, which it does not.” Id. at 1211. Accordingly, the Walker court concluded that it had to 

dismiss from the litigation, pursuant to Rules 12(b)(1) and 23(d), all State Entities purportedly 

included in the plaintiff class—not merely the particular State Entities that had objected—due to 

lack of jurisdiction. Id.

Dismissal of all State Entities from the putative plaintiff classes is likewise required here. 

Permitting the Named Plaintiffs to proceed on behalf of absent State Entities would violate the 

fundamental principle that States Entities may not be subjected to federal judicial process 

without an “unmistakable and explicit waiver” of sovereign immunity on behalf of each 

implicated State. Thomas, 50 F.3d at 506. Named Plaintiffs’ attempt to litigate claims belonging 

to State Entities that have not waived their sovereign immunity impermissibly subjects numerous 

State Entities “to the coercive process of judicial tribunals at the instance of private parties”—

precisely what the Eleventh Amendment forbids. Thomas, 50 F.3d at 506. 

This Court should not allow this case to proceed as a putative class action and defer until 

later an assessment of whether the absent State Entities have waived their sovereign immunity. 

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11 

Basic principles of sovereign immunity require precisely the opposite. As the Supreme Court 

has declared, unless a State waives its own immunity “‘by the most express language or by such 

overwhelming implication from the text as [will] leave no room for any other reasonable 

construction,’” the complaint must be dismissed. See Port Auth. Trans-Hudson Corp. v. Feeney, 

495 U.S. 299, 305 (1990) (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 239-40 

(1985)). Dismissal is also required by “[t]he very object and purpose of the eleventh 

amendment[: ] to prevent the indignity of subjecting a State to the coercive process of judicial 

tribunal at the instance of private parties.” Ex parte Ayers, 123 U.S. 443, 505 (1887). 

The law of this Circuit mandates immediate dismissal in these circumstances. Where, as 

here, a “jurisdictional question ... clearly exists” and is raised by the parties, the court “must” 

address it. Angel v. Kentucky, 314 F.3d 262, 265 (6th Cir. 2002). As the Sixth Circuit has 

observed, the Eleventh Amendment “deprives the federal courts of jurisdiction to entertain a suit 

brought ... against a nonconsenting State.” Touvell v. Ohio Dep’t of Mental Retardation & 

Developmental Disabilities, 422 F.3d 392, 395 (6th Cir. 2005). See also DLX, Inc. v. Kentucky, 

381 F.3d 511, 528 (6th Cir. 2004) (affirming sovereign immunity dismissal under Rule 12(b)(1)); 

Starkey ex rel. A.B. v. Boulder County Social Servs., 569 F.3d 1244, 1260 (10th Cir. 2009) (when 

raised by a party, “Eleventh Amendment sovereign immunity is a threshold jurisdictional issue” 

that must be decided at the outset) (internal quotations omitted). Accordingly, this Court should 

promptly dismiss all aspects of this action that purport to pertain to claims on behalf of State 

Entities, based upon their sovereign immunity under the Eleventh Amendment. 

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12 

II. THE CLASS ALLEGATIONS MUST BE DISMISSED BECAUSE ABSENT

GOVERNMENT ENTITIES HAVE THEIR OWN STATUTORILY APPOINTED 

LEGAL REPRESENTATIVES WHOSE ROLES MAY NOT BE USURPED BY

PRIVATE COUNSEL

States, counties, cities, and other local government entities typically delegate their legal 

representation to one or more publicly employed, elected or appointed attorneys for the 

government—such as a State Attorney General, a County Counsel, or a City Attorney—who are 

entrusted with the responsibility of representing government entities in legal matters, including, 

in particular, litigation. The Amended Complaint does not allege that the private counsel here 

have obtained authorizations from the Named Plaintiffs’ governing bodies or officials that permit 

them to supplant Named Plaintiffs’ government attorneys, much less that they have done so (or 

could do so under the rubric of a class action) for the “thousands” of absent government entities 

that they also purportedly represent. But without such authorizations, neither the five Named 

Plaintiffs nor their band of private counsel has any right to pursue claims on behalf of those 

absent government entities. This Court must therefore dismiss all claims asserted on behalf of 

anyone other than the five Named Plaintiffs (and, as discussed in Part II.D, possibly their claims 

as well).

A. The States May Be Represented Only By Their Duly Appointed Or Elected 

Government Attorneys—The Attorneys General

Even if the Amended Complaint’s attempt to adjudicate claims on behalf of nine States 

and their sovereign sub-units did not violate the Eleventh Amendment, it nevertheless would 

violate the laws of those States. Virtually every State (including the nine that Plaintiffs have 

included in their putative “Damages Class”)7 maintains control over its participation in litigation 

 

7

 Defendants have identified statutes to this effect for each of the nine “Relevant States” 

the Named Plaintiffs purport to represent. Copies of these statutes are included in Ex. C of the 

accompanying Appendix, along with all other state statutes and local laws cited in Part II of this 

memorandum. 

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13 

by statutorily granting its chief government attorney—i.e., the Attorney General or her legal 

department—exclusive authority to represent the State’s interests in court and/or broad 

supervisory powers over such litigation. Walker, 982 F. Supp. at 1210-11 (“Generally, no person 

or entity other than the Attorney General of a state is authorized to represent that state in any 

court or in any case.”). The authority of the Attorneys General of these States to act as legal 

counsel for their sovereign clients may not be usurped by a group of private lawyers retained by 

a small handful of local government entities. 

For example, New York’s Executive Law mandates that its “attorney-general shall ... 

[p]rosecute and defend all actions and proceedings in which the state is interested.” N.Y. Exec. 

Law § 63(1) (emphasis added). As a New York appellate court recently stated, “the Attorney 

General’s office ... is obligated to prosecute, defend and control all legal business of state 

agencies.” Morgan v. New York State Dep’t of Envtl. Conservation, 779 N.Y.S.2d 643, 645 

(N.Y. App. Div. 2004) (emphasis added). Moreover, while a “department, bureau, board, 

council, officer, agency or instrumentality” of the State of New York may institute its own action 

“affecting the property or interests of the state,” it may not do so unless it first provides “notice 

to the attorney-general ... so that he may participate or join therein if in his opinion the interests 

of the state so warrant.” N.Y. Exec. Law § 63(1). See also New York ex rel. Boardman v. 

National R.R. Passenger Corp., 233 F.R.D. 259, 265 (N.D.N.Y. 2006). 

Likewise, the State of North Carolina and its sovereign sub-units may only be represented 

by the State Attorney General: “It shall be the duty of the Attorney General [of North Carolina] 

... [t]o appear for the State in any [] court or tribunal in any cause or matter, civil or criminal, in 

which the State may be a party or interested.” N.C. Gen. Stat. § 114-2(1) (emphasis added). 

According to the North Carolina Supreme Court, this statute codifies the Attorney General’s 

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14 

“common law duty” to “appear for ... the State or its agencies in all actions in which the State 

may be a party or interested.” Martin v. Thornburg, 359 S.E.2d 472, 479 (N.C. 1987) (emphasis 

added). 

Michigan law also specially empowers Michigan’s Attorney General to represent the 

State in all court proceedings: The Attorney General “may, when in his own judgment the 

interests of the state require it, intervene in and appear for the people of this state in any [] court 

or tribunal, in any cause or matter, civil or criminal, in which the people of this state may be a 

party or interested.” Mich. Comp. Laws § 14.28. This provision has been “broadly construed” 

to authorize the Attorney General to initiate actions on behalf of the state and to generally 

“litigate on behalf of the people of the state.” In re Certified Question, 638 N.W.2d 409, 413 

(Mich. 2002). The Michigan Supreme Court has specifically held that the Attorney General’s 

broad authority to represent the State in litigation “cannot be ... undermine[d]” by a county’s 

initiation of its own lawsuit. Id. at 414. 

Each of the six other States included in the Amended Complaint’s putative “Damages 

Class” similarly entrusts the duty and responsibility to represent the State and its subunits in 

court proceedings to its Attorney General: 

• Arizona—The “attorney general shall have charge of and direct the department of 

law and shall serve as chief legal officer of the state.” Ariz. Rev. Stat. § 41-192. 

In that capacity, the Attorney General “shall ... be the legal advisor of the 

departments of this state and render such legal services as the departments 

require.” Id. See also 1989 Ariz. Op. Att’y Gen. 44 (1989) (State department 

“must refer the matter to the Attorney General and both agencies must participate 

in the resulting settlement” for settlement to be authorized) (citing Ariz. Rev. Stat. 

§ 41-192). 

• Maine—The Attorney General “or a deputy, assistant or staff attorney shall

appear for the State” and the heads of State departments and agencies “in all civil 

actions and proceedings in which the State is a party or interested.” Me. Rev. 

Stat. tit. 5, § 191(3) (emphasis added). Consistent with this assignment of 

authority, the Supreme Judicial Court of Maine has held that the Attorney General 

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15 

“has the power and duty to institute, conduct and maintain such actions and 

proceedings as he deems necessary for the protection of public rights.” In re 

Estate of Thompson, 414 A.2d 881, 890 (Me. 1980). 

• Maryland—The State Government Article of the Maryland Code provides, 

subject to certain narrow exceptions not applicable here, that “the Attorney 

General ... shall represent and otherwise perform all of the legal work for each 

officer and unit of the State government” and that any “officer or unit of the State 

government may not employ or be represented by a legal adviser or counsel other 

than the Attorney General or a designee of the Attorney General.” Md. Code, 

State Gov’t § 6-106 (emphasis added). Based on these provisions, Maryland’s 

highest court recently barred a Maryland state officer from intervening as a party 

to a court proceeding without being represented by the Attorney General or his 

designee. Duckworth v. Deane, 903 A.2d 883, 890 (Md. 2006). 

• Minnesota—The “attorney general shall appear for the state in all causes in the 

supreme and federal courts wherein the state is directly interested.” Minn. Stat. § 

8.01 (emphasis added). The Attorney General’s authority to conduct litigation is 

“plenary” and “[h]is discretion as to what litigation shall or shall not be instituted 

by him is beyond the control of any other office or department of the state.” State 

ex rel. Peterson v. City of Fraser, 254 N.W. 776, 778-79 (Minn. 1934). The State 

of Minnesota may employ “additional counsel” to assist the Attorney General, but 

only if the “attorney general, the governor, and the chief justice of the Supreme 

court shall certify, in writing, filed with the Office of the Secretary of State, that it 

is necessary” to do so. Id. § 8.06 (emphasis added). 

• New Mexico—The “attorney general shall ... prosecute or defend in any [] court 

or tribunal all actions and proceedings, civil or criminal, in which the state may be 

a party or interested when, in his judgment, the interest of the state requires such 

action or when requested to do so by the governor.” N.M. Stat. § 8-5-2(B)

(emphasis added). Although a department of the State may employ private 

counsel in its defense, before that may occur the private counsel must first secure 

a commission from the Attorney General and receive the “Attorney General’s 

express agreement to waive the State’s Eleventh Amendment immunity.” Abreu 

v. New Mexico Children, Youth & Families Dep’t, 646 F. Supp. 2d 1259, 1269 

(D.N.M. 2009). 

• West Virginia—The “attorney general shall appear as counsel for the state in all

causes pending ... in any federal court[] in which the state is interested.” W. Va. 

Code § 5-3-2. Accordingly, the West Virginia Supreme Court of Appeals held 

that “in all instances when an executive branch or related State entity is 

represented by counsel before a tribunal, the Attorney General shall appear upon 

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16 

the pleadings as an attorney of record.” State ex rel. McGraw v. Burton, 569 

S.E.2d 99, 117 (W. Va. 2002).8

 

Because only the States’ own Attorneys General may represent the States and their

subunits in court proceedings, all portions of the Amended Complaint that assert claims on 

behalf of absent States and their sub-units must be dismissed as a matter of law. 

B. Counties, Cities, And Other Municipal Corporations Also Must Be 

Represented By Their Own Official Government Attorneys

Under state and local laws, counties, cities, and other local government entities typically 

may pursue legal claims in court only when (1) duly authorized to do so by their governing 

officials, and (2) represented by their own publicly appointed government attorneys or, in certain 

exceptional cases, specially appointed surrogate attorneys. As a result, lawsuits like this one—

purportedly brought on behalf of a local government entity but without the entity’s formal 

authorization, and without direct involvement of the entity’s official government attorney—are 

legally defective and must be dismissed at the threshold. 

New York—As detailed below, this rule applies with full force in New York, a putative 

“Damages Class” jurisdiction and home to one of the Named Plaintiffs (Village of Newport). 

 

8

 Laws in some of these nine States do permit private counsel, in certain limited 

circumstances, to assist the Attorney General in representing the State, but there is no indication 

of any such arrangements here. In such circumstances, official government lawyers for the State 

would be actively involved in the litigation and there would be publicly available evidence of 

retention agreements between the State and private counsel in certain States. For example, while 

the Attorneys General for at least three of these States (Arizona, New York, and West Virginia) 

maintain public websites that either disclose current contracts with private counsel or list 

litigations in which the State is participating, none of those sites indicates involvement by the 

State in the present litigation or retention of any private counsel (much less the private counsel 

listed in the Amended Complaint) for such litigation. See Procurement, Arizona Attorney 

General Tom Horne, https://www.azag.gov/rfp; Antitrust Bureau, Attorney General Eric T. 

Schneiderman, http://www.ag.ny.gov/bureau/antitrust-bureau; Office of the Attorney General, 

Office Of The WV Attorney General Patrick Morrisey, http://www.ago.wv.gov/outsidecounsel/ 

Pages/WVAGO.aspx. 

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Counties. New York state law requires that any affirmative civil suit on behalf of a 

county first be affirmatively authorized by the county’s board of supervisors. County of Sullivan 

v. Town of Thompson, 471 N.Y.S.2d 399, 400 (N.Y. App. Div. 1984). Moreover, each county’s 

County Attorney, who must be appointed by the board of supervisors and a county resident, 

“shall prosecute and defend all civil actions and proceedings brought by or against the county.” 

N.Y. County Law §§ 500-501 (emphasis added). Any such suit initiated without compliance 

with § 501 must be dismissed. County of Sullivan, 471 N.Y.S.2d at 400. 

Cities and Towns. Under New York law, every civil suit on behalf of a city or town 

presents “the question of capacity [to sue].” Town of Claverack v. Brew, 716 N.Y.S.2d 748, 749 

(N.Y. App. Div. 2000). “As these entities are creatures of statute, their right to sue, if it exists at 

all, must be derived from the relevant enabling legislation or some other concrete predicate.” Id. 

(internal quotation omitted). Accordingly, before a claim may be commenced in court on behalf 

of a New York town, the town’s duly elected board must first take formal action to authorize the 

suit and to direct an appropriate town officer to cause it to be initiated. Id.; see also N.Y. Town 

Law § 65 (“The town board of any town may authorize and direct any town officer or officers to 

institute, defend or appear, in any action or legal proceeding, in the name of the town, as in its 

judgment may be necessary, for the benefit or protection of the town, in any of its rights or 

property.”). 

Likewise, the city charters that govern the powers and operations of cities in New York 

typically grant to the city’s chief legal officer exclusive, or nearly exclusive, authority and power 

to pursue litigation on behalf of the city. For example, the Charter of New York City provides, 

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18 

subject to only very limited exceptions that do not apply here,9

 that “the corporation counsel 

shall be attorney and counsel for the city and every agency thereof and shall have charge and 

conduct of all the law business of the city and its agencies and in which the city is interested.”10 

Similarly, under New York’s Second Class Cities Law, the “corporation counsel” for each such 

city “shall appear for and protect the rights and interests of the city in all actions, suits and 

proceedings brought by or against” the city; and while such corporation counsel may, “with the 

written consent of the mayor,” employ additional counsel, he may do so only to “assist him in 

the argument and conduct” of certain types of cases. N.Y. Second Class Cities Law § 201

(emphasis added). 

Where a defendant purportedly sued by a local government entity from New York State 

raises reasonable concerns regarding whether the suit has been properly initiated in accordance 

with these laws, “the onus [is] on plaintiff to come forward with evidence establishing that the 

action [is] authorized.” Town of Claverack, 716 N.Y.S.2d at 750. If the plaintiff fails to meet 

that burden, then “dismissal of the action is warranted.” Id. 

 

9

 As in some other jurisdictions, the primary exception is for the rare case in which the 

city’s chief legal officer is afflicted with a “conflict of interest, fraud, collusion, corruption, or 

incompetence” that prohibits a fair prosecution of the case. See Hevesi v. Pataki, 643 N.Y.S.2d

895, 898 (N.Y. Sup. Ct. 1996). 

10 New York City Charter § 394(a) (emphasis added), http://www.nyc.gov/html/charter/

downloads/pdf/citycharter2004.pdf. See also Buffalo City Charter § 12-4 (“The corporation 

counsel shall prosecute and defend all actions and proceedings brought by or against the city or 

any of its officers, departments, commissions, board, or other agencies, including the board of 

education and the Buffalo sewer authority.” (emphasis added)), https://www.ci.buffalo.ny.us/ 

Home/Leadership/Mayor/CityCharter; Syracuse City Charter § 5-1101(3) (“The department of 

law, headed by the corporation counsel, shall ... [h]ave charge of all legal matters in which the 

city has an interest, or to which the city is a party, with power and authority to institute and 

prosecute or to intervene in any and all suits or other proceedings, civil or criminal, as may be 

deemed necessary for the assertion or protection of the rights and interests of the city.” (emphasis 

added)), http://www.syrgov.net/uploadedFiles/Departments/City_Clerk/Content/CHARTER%20

OF%20THE%20CITY%20OF%20SYRACUSE--1960%20-%20With%20Watermark.pdf.

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Michigan—The laws regarding representation of local government entities in Michigan, 

another of the “Relevant States” and home to two Named Plaintiffs (Oakland County and 

Traverse City), are similar. 

Counties. A Michigan county may participate in civil litigation only if it is represented 

by its “prosecuting attorney” or “corporation counsel.” See Mich. Comp. Laws §§ 45.563(e) & 

49.153.11 The only exception is when, by majority vote, the board of supervisors for a county 

that has no “corporation counsel” both (a) determines that its “prosecuting attorney is unable to 

properly represent the county” and (b) employs a replacement lawyer “to represent the county in 

civil matters.” See id. § 49.71; Wayne County Prosecuting Att’y v. Wayne County Bd. of 

Comm’rs, 205 N.W.2d 27, 32, 35 (Mich. App. 1972).12

Cities And Other Municipalities. The laws governing many cities and other 

municipalities in Michigan similarly provide that only an officially appointed government lawyer 

for the municipality may represent it in court. For example, Michigan’s Fourth Class City Act, 

Mich. Comp. Laws §§ 81.1 et seq., which serves by default as the city charter for a class of 

 

11 Under § 49.153, the county-level office of “prosecuting attorneys shall, in their 

respective counties, appear for the state or county, and prosecute or defend in all the courts of the 

county, all prosecutions, suits, applications and motions whether civil or criminal, in which the 

state or county may be a party or interested.” (Emphasis added.) Section 45.563(e), which 

applies to Michigan counties that both have adopted an optional “unified” form of county 

government and established a “department of corporation counsel,” mandates that the 

corporation counsel “shall perform as provided by law all civil law functions.” (Emphasis 

added.) 

12 Section 49.71 establishes the procedure by which a Michigan county that does not have a 

corporation counsel may supplant its “prosecuting attorney.” See Bay County Exec. v. Bay 

County Bd. of Comm’rs, 443 N.W.2d 168, 172 (Mich. App. 1989). The statute states: “The 

board of supervisors of any county by a majority vote of the members-elect may employ an 

attorney to represent the county in civil matters, whenever the board determines that the 

prosecuting attorney is unable to properly represent the county. Such attorney shall receive such 

compensation as shall be determined by the board of supervisors.” 

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Michigan municipalities that have yet to establish their own operative home rule charter,13

explicitly mandates that “[t]he [city] attorney ... shall act as the attorney and solicitor for the 

corporation in all legal proceedings in which the corporation is interested.” Id. § 87.20 

(emphasis added). The charters of many other Michigan municipalities similarly make the 

entities’ appointed legal officer its exclusive in-court representative. To take just one example, 

the charter of the City of Dearborn Heights mandates that the city’s Corporation Counsel, a 

mayoral appointee, “shall prosecute and defend, in the name of the City, all cases in all courts

and before all legally constituted tribunals whenever the City is a party thereto.”14 The charters 

of other Michigan cities contain similar provisions.15

California and North Carolina—The same sorts of roadblocks to private counsel’s 

representation of huge classes of local government entities are also readily found in the laws of 

California and North Carolina, the other two “Relevant States” in which there is a corresponding 

Named Plaintiff (Richmond and Mecklenburg County, respectively). 

 

13 See Michigan Municipal League, Member Resource Services, “Charter Commissioners 

Handbook: Structure of Local Government” at 9, available at http://www.mml.org/pdf/charter_

revision/charter_handbook.pdf.

14 Charter of the City of Dearborn Heights § 5.13(c) (emphasis added), http://www.mml.org

/resources/information/charter/pdf/123.pdf. While another provision of the same charter 

authorizes the Mayor or City Council to “retain special legal counsel ... for the purpose of 

assisting the Corporation Counsel for a special matter,” even when that is done such special 

counsel may only “appear Of Counsel to the Corporation Counsel,” id. § 5.13(j), and must be “a 

resident and (and qualified elector) of the City of Dearborn Heights.” Id. § 5.13(l).

15 See, e.g., Charter of the City of Alpena § 7.8(b) (The City Attorney “shall conduct for the 

city all cases in all courts and before all legally constituted tribunals whenever the city is a party 

thereto” (emphasis added)), http://www.mml.org/resources/information/charter/pdf/13.pdf; 

Charter of City of Cheboygan § 7.5(b) (same), http://www.mml.org/resources/information/

charter/pdf/93.pdf; Charter of the City of Buchanan § 4.16(b) (same), http://www.mml.org/

resources/information/ charter/pdf/64.pdf; Charter of the City of Hillsdale § 4.15(b) (same), 

http://www.mml.org/resources/information/charter/pdf/229.pdf. 

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21 

Counties. Under § 25203 of California’s Government Code, any litigation to which a 

county “is a party” must be “direct[ed] and control[ed]” by the county’s board of supervisors, it 

must be conducted by “the district attorney, county counsel, or other counsel for the county,” and 

no other counsel may be employed to assist those official government lawyers unless approved 

“by a two-thirds vote of all the members” of the board.16

Under North Carolina statutes, the elected board of commissioners of every county must 

appoint a county attorney “to be its legal advisor.” N.C. Gen. Stat. § 153A-114. 

Cities And Other Municipalities. The local charters for many municipalities in 

California, including cities such as Oakland,17 Palo Alto,18 and San Diego,19 generally mandate 

that only the duly appointed chief legal officers of those entities may represent them in civil 

litigation. 

The same is true in North Carolina, where every city and town council must appoint a 

city attorney “to be its legal advisor,” N.C. Gen. Stat. § 160A-173. See also, e.g., City of 

Winston-Salem Code § 2-318(a) (the City Council “may appoint a city attorney ... to represent 

the city in all legal matters”); Town of Mint Hill Charter § 5.2 (“It shall be the duty of the town 

 

16 See also People v. Parmar, 104 Cal. Rptr. 2d 31, 50 (Cal. Ct. App. 2001) (“[A]lthough 

counties may, at their option, establish a county counsel to perform most of the civil legal duties 

required by the county, in the absence of such an election the district attorney is both criminal 

and civil attorney for the county”).

17 Oakland City Charter, Article IV, Section 401(6) (the City Attorney “shall act as Counsel 

in behalf of the City or any of its officers, boards, commissions, or other agencies in litigation 

involving any of them in their official capacity.”).

18 Palo Alto Municipal Code, Title 2, Section 2.08.120 (“The duties of the city attorney 

shall be as follows ... to represent the city in all actions at law.”) (emphasis added).

19 City of San Diego City Charter, Article V, Section 40 (“The City Attorney shall be the 

chief legal adviser of, and attorney for the City and all Departments and offices thereof in 

matters relating to their official powers and duties .... It shall be the City Attorney’s duty ... to 

prosecute or defend, as the case may be, all suits or cases to which the City may be a party”) 

(emphasis added).

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22 

attorney to prosecute and defend suits for and against the town.”); Town of Wake Forest Charter 

§ 6.2 (same).

Other “Relevant States”—While a review of the laws of the 14 other “Relevant States” 

is unnecessary due to the Named Plaintiffs’ lack of standing to pursue claims under the laws of 

these other States (see infra Part III), the laws of New York, Michigan, California, and North 

Carolina discussed above are the norm, rather than the exception. Throughout the country, laws 

establishing and regulating the affairs of local government entities generally are designed to 

ensure that the public is protected and represented by a duly appointed government attorney 

rather than private counsel. See, e.g., 17 McQuillin: The Law of Municipal Corporations § 49:36 

(3d ed. 1966); 56 Am. Jur. 2d Municipal Corporations, Etc. § 194. Accordingly, where a 

municipal corporation has regular counsel, charged with the duty of conducting all the law 

business in which the corporation is interested, contracts for additional or extra legal services 

usually are unauthorized. Coventry Sch. Comm. v. Richtarik, 411 A.2d 912, 916 (R.I. 1980) 

(citing 10 McQuillin § 29.12).

C. Dismissal Of All Claims Of Absent Class Members Is Necessary To Avoid 

Wholesale Violations Of These Numerous State And Local Laws

None of the attorneys listed on the Amended Complaint purports to be a duly designated 

government counsel even for any of the five Named Plaintiffs, much less for any of the 

thousands of absent States, state subunits, and local government entities that allegedly are 

members of the two purported classes. Nor is there any indication from Named Plaintiffs or their 

counsel, either in the Amended Complaint itself or in response to the written questions posed by 

Defendants (see supra pp. 6-7; Exhs. A and B), that any of the listed attorneys is operating under 

any statutory or charter exception that would permit him or her to act on behalf of any of these 

entities. To permit private counsel to act on behalf of these absent government entities would 

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23 

unlawfully “deprive the [duly authorized, official government attorneys for those absent entities]

of the very labors which are devolved upon [them] by the law, and which [they were] elected by 

the people to perform, and which under [their] oath of office [they are] bound to perform.” 

Merced County v. Cook, 52 P. 721, 723 (Cal. 1898). 

One of the most important duties of an official government attorney—appearing in court 

and conducting litigation on behalf of the government entity that elected or appointed him or 

her—cannot be usurped by private counsel at the whim of a handful of Named Plaintiffs merely 

by filing a purported class action. Because the Named Plaintiffs and their private counsel have 

no authority to replace government attorneys for absent government entities, they consequently 

have no authority to file a complaint on behalf of those entities or to represent them in litigation. 

See County of Cook ex rel. Rifkin v. Bear Stearns & Co., 831 N.E.2d 563, 573 (Ill. 2005) 

(affirming dismissal of complaint purportedly brought on county’s behalf where “the State’s 

Attorney has elected not to proceed [and] [t]here is no statutory authority for the [private 

plaintiffs] to proceed, and no authority arises by implication”). 

Dismissal of all claims asserted here on behalf of absent class members is therefore 

warranted. See, e.g., Dallas County, Tex. v. Merscorp, Inc., No. 11-cv-02733, 2012 WL 

6208385, at *7-8 (N.D. Tex. Dec. 13, 2012) (granting motion to strike allegations defining a 

class of counties in Texas, because county statutory requirements, which prevent private counsel 

from “usurp[ing] the statutory duties of other county officials,” “must be satisfied before a Texas 

county can retain outside counsel” (emphasis in original)); Town of Claverack, 716 N.Y.S.2d at 

750 (dismissal appropriate where plaintiff failed to demonstrate that lawsuit was properly 

authorized). 

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D. Named Plaintiffs Should Be Ordered To Provide A More Definite Statement 

Demonstrating That They Have Been Duly Authorized To Commence This 

Litigation And To Be Represented By Private Counsel

The Amended Complaint is devoid of any allegations regarding whether and how each of 

the Named Plaintiffs has formally approved either its participation in this litigation or its 

representation by private counsel. In light of local laws applicable to Named Plaintiffs, there are 

serious questions whether they and their private counsel have the capacity to proceed with even 

the non-class components of this case. For this reason, pursuant to Fed. R. Civ. P. 12(e), the 

Court should order each of the Named Plaintiffs to provide a more definite statement regarding 

the steps (if any) their governing officers have taken to authorize them to pursue their own 

claims in this proceeding and to be represented by private counsel.

Under Federal Rule of Civil Procedure 12(e), a party may move for more definite 

statement of a “pleading ... which is so vague or ambiguous that the party cannot reasonably 

prepare a response.” Fed. R. Civ. P. 12(e). Courts in this District grant this relief where a short, 

concise statement from a plaintiff would provide sufficient factual detail to enable a defendant to 

sufficiently respond to a complaint. McCloy v. Correction Med. Servs., No. 07-13839, 2008 WL 

5350623, at *2 (E.D. Mich. Dec. 18, 2008). 

None of the government attorneys for any of the Named Plaintiffs has signed the 

Amended Complaint, nor have any of them (or any of their publicly employed delegates) 

appeared at hearings before this Court or during any of the meet and confer sessions between the 

Named Plaintiffs’ private counsel and Defendants’ counsel in this case. Moreover, even when 

directly asked to confirm that they are duly authorized to proceed on behalf of the Named 

Plaintiffs, see Ex. A, their private counsel flatly refused to respond, see Ex. B. 

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This is particularly problematic because laws that are specifically applicable to the 

Named Plaintiffs cannot be squared with their participation in this case while being represented 

solely by private counsel. In particular:

• Richmond’s Charter expressly mandates that its City Attorney “shall represent the 

City in all actions,” City of Richmond Charter, art. IV, § 3 (emphasis added), and that 

“[n]o contract for the services of legal counsel may be awarded without the approval 

of City Attorney.” Richmond, Cal., Code 2.52.320(a). 

• Because Oakland County has both adopted the unified form of government20 and 

established a Department of Corporation Counsel,21 Michigan statute not only 

requires that it be represented in court by its Corporation Counsel, but also deprives it 

of “the ability under Mich. Comp. Laws § 49.71 ... to employ outside counsel.” See 

Bay County Exec. v. Bay County Bd. of Comm’rs, 443 N.W.2d 168, 172 (Mich. App. 

1989). 

• Mecklenburg County’s initiation of a lawsuit must first be authorized through the 

County’s board of commissioners. N.C. Gen. Stat. § 153A-11 (county has the power 

to “sue and be sued”); id. § 153A-12 (county’s powers “shall be exercised by the 

board of commissioners”). See also Bethune v. County of Harnett, 507 S.E.2d 40, 42 

(N.C. 1998) (“We note that a county exercises its powers, rights, and duties through 

the actions of its elected board of commissioners.”).

• Traverse City’s Charter mandates that its “City Attorney shall act as the legal advisor 

to, and attorney and counsel for, the municipality and all its officers in matters 

relating to their official duties.” Charter of the City of Traverse City § 47 (emphasis 

added). See also Mich. Comp. Laws § 87.20 (the City Attorney “shall act as the 

attorney and solicitor for the corporation in all legal proceedings in which the 

corporation is interested”) (emphasis added). Outside counsel may be retained only 

by an act of the City Commission “[u]pon recommendation of the City Attorney.” 

Charter of the City of Traverse City § 47. 

• New York’s Village Law requires the Mayor of the Village of Northport “to institute, 

at the direction of the board of trustees, all civil actions in the corporate name of the 

village.” N.Y. Village Law § 4-400(1)(d). A lawsuit in the Village’s name that does 

not follow that protocol is not properly instituted and must be dismissed. 

Incorporated Village of Northport v. Town of Huntington, 604 N.Y.S.2d 587, 589 

(N.Y. App. Div. 1993) (“[T]he individual plaintiffs, in their capacity as trustees, had 

 

20 See Police Officers Ass’n of Michigan v. Oakland County, 354 N.W.2d 367, 369 (Mich. 

Ct. App. 1984).

21 Oakland County, Michigan, Oakland County Departments, http://www.oakgov.com/ 

directory/Pages/default.aspx. 

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no power to commence this action on behalf of the Village for the benefit of its 

inhabitants.”). 

Nothing in the Amended Complaint addresses any of these applicable legal requirements, much 

less demonstrates that Named Plaintiffs and their purely private counsel have satisfied them.

In light of the serious doubts outlined above, as well as the special burden that 

government entities bear in having to demonstrate their capacity to assert claims in court, e.g., 

Town of Claverack, 716 N.Y.S.2d at 750, each Named Plaintiff should be ordered, under Fed. R.

Civ. P. 12(e), to provide “a more definite statement” averring specific facts to show that a 

relevant governing body or official—with legal power both to authorize it to seek judicial relief 

and to employ private counsel—has in fact duly authorized its participation in this lawsuit. 

III. ALL CLAIMS UNDER THE LAW OF STATES IN WHICH NO NAMED 

PLAINTIFF IS LOCATED OR CLAIMS INJURY MUST BE DISMISSED

Yet another fundamental defect in the Amended Complaint is that the Named Plaintiffs 

are located in only four States (California, Michigan, New York, and North Carolina), Am. 

Compl. ¶¶ 29-33, but the Amended Complaint asserts damages claims under the laws of 

seventeen so-called “Relevant States,” id. ¶¶ 217-250. There is no allegation in the Amended 

Complaint that even suggests (much less plausibly avers, as required under the familiar 

Twombly-Iqbal standard)22 that any of the five Named Plaintiffs indirectly purchased a Wire 

Harness System in any of the thirteen States whose laws are cited in the Amended Complaint but 

in which no Named Plaintiff is located. As a result, the claims asserted in the Amended 

Complaint under the laws of those thirteen states (i.e., Arizona, Iowa, Maine, Maryland, 

 

22 See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007); Ashcroft v. Iqbal, 556 U.S. 

662, 678-80 (2009).

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Minnesota, Nebraska, Nevada, New Hampshire, New Mexico, North Dakota, South Dakota, 

West Virginia, and Wisconsin) must be dismissed for lack of Article III standing.23

This case presents stronger grounds for threshold dismissal due to lack of standing than 

existed in related cases in which this Court, while recognizing that “standing generally is 

determined at the outset of a case,” found an “exception[al]” basis for declining to dismiss at the 

threshold claims brought under the laws of States in which no Named Plaintiff resides. In re 

Auto. Parts Antitrust Litig., Nos. 12-cv-00302 & 12-cv-00303, 2014 WL 2993742, at *11-12 

(E.D. Mich. July 3, 2014); see also In re Auto. Parts Antitrust Litigation, Nos. 12-cv-00202 & 

12-cv-00203, 2014 WL 2993753, at *8-9 (E.D. Mich. July 3, 2014); In re Auto. Parts Antitrust 

Litigation, Nos. 12-cv-00402 & 12-cv-00403, 2014 WL 2999269, at *10-11 (E.D. Mich. July 3, 

2014); In re Auto. Parts Antitrust Litig., Nos. 12-cv-00102 & 12-cv-00103, 2013 WL 2456612, 

at *9-12 (E.D. Mich. June 6, 2013). The pleadings addressed in those related cases—the EndPayors’ and Auto Dealers’ complaints concerning Wire Harness Systems, Fuel Senders, Heater 

Control Panels, and Instrument Panel Clusters—did not present the extreme disparity between 

the number of States in which at least one named plaintiff resides (or claims injury) and the 

number of States under whose laws claims are being asserted. For example, in the End-Payors’ 

Fuel Senders complaint, 41 named plaintiffs residing in 28 States asserted claims under the laws 

of 29 States (including the District of Columbia); and in the Auto Dealers’ Fuel Senders 

complaint, 43 named plaintiffs residing in 28 States asserted claims under the laws of 30 States 

 

23 Plaintiffs’ claim under the Maryland Antitrust Act (Am. Compl. ¶¶ 225-226) is especially 

problematic. That Act generally does not permit claims by indirect purchasers. Davidson v. 

Microsoft Corp., 792 A.2d 336, 341-42 (Md. Ct. Spec. App. 2002). A statutory carve out, 

however, permits certain designated government entities—namely, “[t]he United States, the State 

[of Maryland], or any political subdivision organized under the authority of this State”—to 

“maintain an action ... regardless of whether it dealt directly or indirectly with the person who 

has committed the violation.” Md. Code, Com. Law § 11-209(b)(2)(ii). Obviously, none of the 

Named Plaintiffs is such an entity, and, accordingly, they have no claim under the Maryland Act.

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(including the District of Columbia). See Docket No. 39-1 (12-cv-00302); Docket No. 46 (12-

cv-00303). In both those cases, the number of States whose laws were invoked but in which no 

named plaintiff resided or claimed injury was only a small fraction of the total number of States 

whose laws were invoked (i.e., 1 of 29, or 3%, in the End-Payors’ case; and 2 of 30, or 7%, in 

the Auto Dealers’ case). Here, in sharp contrast, there is no Named Plaintiff located in, or 

allegedly connected to, 13 of the 17 States (76%) whose laws are invoked in the Amended 

Complaint. This extreme disparity, together with all of the other fundamental problems with the 

Amended Complaint’s attempt to bring claims on behalf of absent public entities in jurisdictions 

to which the Named Plaintiffs have no connection, warrants immediate dismissal.

That the Amended Complaint is cast as a class action does not cure this defect. Named 

Plaintiffs in a class action “must allege and show that they personally have been injured, not that 

injury has been suffered by other, unidentified members of the class to which they belong and 

which they purport to represent.” Lewis v. Casey, 518 U.S. 343, 357-58 (1996) (internal 

quotation omitted). See also Rosen v. Tennessee Comm’r of Fin. & Admin., 288 F.3d 918, 928 

(6th Cir. 2002). Because the Named Plaintiffs here have not alleged any facts that plausibly 

show they have been harmed under the laws of any State other than California, Michigan, New 

York, and North Carolina, this Court must dismiss all claims asserted under the laws of other 

States. See Am. Compl. ¶¶ 217-250. 

Defendants respectfully submit that, in light of the unique concerns presented by the 

Named Plaintiffs in this case, the Court should follow the numerous cases holding that Article III 

standing of individual plaintiffs should be determined before class certification. See In re 

Refrigerant Compressors Antitrust Litig., No. 09-md-02042, 2012 WL 2917365, at *7 (E.D. 

Mich. July 17, 2012) (dismissing claims under various States’ laws because “no named [indirect 

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29 

purchaser] Plaintiff resides in or was injured in those states”); Smith v. Lawyers Title Ins. Corp., 

No. 07-12124, 2009 WL 514210, at *3 (E.D. Mich. Mar. 2, 2009) (prior to class certification, 

court must determine that at least one named plaintiff has Article III standing to raise each 

claim); In re Packaged Ice Antitrust Litig., 779 F. Supp. 2d 642, 657-59 (E.D. Mich. 2011); In re 

Potash Antitrust Litig., 667 F. Supp. 2d 907, 924 (N.D. Ill. 2009) (dismissing state law claims in 

every state in which no named plaintiff resided); In re Wellbutrin XL Antitrust Litig., 260 F.R.D. 

143, 157 (E.D. Pa. 2009) (same as to indirect purchaser claims under 33 States’ statutes); In re 

Ditropan XL Antitrust Litig., 529 F. Supp. 2d 1098, 1107 (N.D. Cal. 2007) (dismissing antitrust 

claims under 24 States’ laws for lack of standing). 

Defendants should not have to bear the substantial burdens of litigation under the state 

laws for the thirteen States in which none of the five Named Plaintiffs can establish standing, 

especially given their lack of authority to bring claims under those laws on behalf of absent 

government entity class members. Named Plaintiffs’ claims under the laws of Arizona, Iowa, 

Maine, Maryland, Minnesota, Nebraska, Nevada, New Hampshire, New Mexico, North Dakota, 

South Dakota, West Virginia, and Wisconsin must be dismissed. 

IV. THESE JURISDICTIONAL AND OTHER THRESHOLD DEFECTS SHOULD 

BE ADDRESSED NOW

There are at least two additional reasons why the defects requiring dismissal (supra Parts 

I, II, and III) should be decided now. 

First, delaying resolution would be particularly inappropriate here, where the Named 

Plaintiffs have not even acknowledged, much less begun to address, the extreme (and, 

Defendants believe, insurmountable) challenges that would be associated with a class action on 

behalf of thousands of absent State and local government entities from all across the country. 

Earlier this month, in another consolidated antitrust and consumer protection case in which a few 

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30 

local government entities sought to represent a nationwide class of non-federal, non-State 

government entities, a federal court in California dismissed, at the threshold Rule 12 stage, all of 

the class components pertaining to government entities (except for a single sub-class on behalf of 

only entities located in California, to which the defendants in that case apparently did not object). 

In re Lithium Ion Batteries Antitrust Litig., No. 13-md-02420, 2014 WL 4955377 (N.D. Cal. Oct. 

2, 2014). That decision’s reasoning, which rested on Rule 23(d)(1)(D),

24 is fully applicable here: 

The Court is not persuaded that it should permit to go forward

potentially massive discovery concerning a class comprised of 

every municipal and regional government in the nation without 

further indication of foresight on the part of the purported 

representatives of those absent class members. Cf. AGC, 459 U.S. 

528 n.17 (“Certainly in a case of this magnitude, a district court 

must retain the power to insist upon some specificity in pleading

before allowing a potentially massive factual controversy to 

proceed.”). Lacking specificity about how the IPPs’ proposed 

classes of every governmental body in the United States except the 

state and federal sovereigns would or even could proceed, their 

dismissal is warranted.

Id. at *18. The court further explained that the unique status of government entities heightened 

the need for threshold dismissal:

For instance, if the Court eventually were to certify one of the 

IPPs’ proposed classes of non-California governmental plaintiffs, it 

would be responsible for safeguarding the interests of absent class 

members. Given that such class members would, in this proposed 

class, consist of political subdivisions of states, with their own 

obligations to their own citizens, their own specific relationships to 

their states (and any parens patriae actions their states may bring), 

their own organizing charters (or lack thereof), and additional 

complexities that may yet disclose themselves, the Court lacks 

 

24 Rule 23(d)(1)(D) authorizes a court presiding over a putative class action, including at the 

threshold pleading stage, to require “that the pleadings be amended to eliminate allegations about 

representation of absent persons and that the action proceed accordingly.” See 1 McLaughlin on 

Class Actions § 3:4 n.1 (noting that courts have “‘authority to strike class allegations prior to 

discovery if the complaint demonstrates that a class action cannot be maintained’” (quoting 

Tietsworth v. Sears, Roebuck & Co., 720 F. Supp. 2d 1123, 1146 (N.D. Cal. 2010))).

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31 

information regarding how the Court could discharge its duties to 

the purported governmental class members.

Id. at *18 n.18. Similar considerations warrant threshold dismissal in the present case.

Second, unlike other cases in these proceedings, there is no prospect that permitting this 

case to percolate beyond the threshold would create a realistic possibility of a class-wide

settlement. The inherent uncertainty about the viability of the alleged Nationwide and Damages 

Classes—and whether the Named Plaintiffs and their solely private counsel may represent the 

putative class members—undermines any confidence that any absent government entities would 

be bound by a class settlement. For instance, even if none of the States affirmatively opted out 

of a class settlement, this Court would still “lack[] jurisdiction over” the States and the judgment 

could not run against them. Walker, 982 F. Supp. at 1210. Likewise, none of the absent county 

and municipal entities would be represented by their legally authorized government attorneys, 

nor could they individually supervise the litigation conducted by private Plaintiffs’ counsel. In 

these circumstances, the government entities would be “inadequately represented by the named 

plaintiffs ... deprived of due process of law, and the resulting judgment [would] not [be] 

afforded res judicata effect insofar as it purports to bind [the] absent class members.” Sagers v. 

Yellow Freight Sys., Inc., 68 F.R.D. 686, 689 (N.D. Ga. 1975) (citing Hansberry v. Lee, 311 U.S. 

32, 42-43 (1940)). 

As a result of such uncertainties, any class settlement would be impossible. There are no 

assurances that any of the absent government entities would ever be bound by a settlement, 

regardless of any procedures or findings of appropriate class certification that this Court might 

make. See Pelt v. Utah, 539 F.3d 1271, 1285 (10th Cir. 2008) (“It is well settled that a court 

adjudicating a class action cannot predetermine the res judicata effect of its own judgment; that 

can only be determined in a subsequent suit.”). The Court should not permit this case to proceed 

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32 

under the false hope that a settlement in this case might resolve the potential claims of all 

government entities in the United States, because this case is not an appropriate vehicle for those 

claims. The Named Plaintiffs’ claims must be dismissed now, so any interested government 

entities may pursue their own interests with their own consent, under their own statutorily 

authorized procedures, and represented by their own official lawyers, should they choose to do 

so. 

CONCLUSION

For all of the foregoing reasons, the Court should dismiss all class components of the 

Amended Complaint, pursuant to Fed. R. Civ. P. 12(b)(1), 12(b)(6), and 23(d)(1)(D). In 

addition, for the reasons explained in part II.D, the Court should also order, pursuant to Fed. R.

Civ. P. 12(e), that each Named Plaintiff provide a more definite statement explaining its capacity 

and authority to assert claims in this case and to do so while being represented solely by private 

counsel. 

Respectfully submitted.

October 31, 2014 By:

WILMER CUTLER PICKERING HALE 

AND DORR LLP

/s/ Steven F. Cherry 

Steven F. Cherry 

Patrick J. Carome 

David P. Donovan 

David S. Molot 

Brian C. Smith

Kurt G. Kastorf

WILMER CUTLER PICKERING HALE

AND DORR LLP

1875 Pennsylvania Avenue, NW 

Washington, DC 20006 

Telephone: (202) 663-6000 

Facsimile: (202) 663-6363 

steven.cherry@wilmerhale.com

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33 

patrick.carome@wilmerhale.com

david.donovan@wilmerhale.com

david.molot@wilmerhale.com 

brian.smith@wilmerhale.com 

kurt.kastorf@wilmerhale.com 

Attorneys for Defendants DENSO Corporation 

and DENSO International America, Inc. 

Steven M. Zarowny (P33362)

General Counsel

DENSO INTERNATIONAL AMERICA, INC.

24777 Denso Drive 

Southfield, MI 48033 

Telephone: (248) 372-8252 

Facsimile: (248) 213-2551 

STEVE_ZAROWNY@denso-diam.com 

Attorney for Defendants DENSO International 

America, Inc. 

October 31, 2014 By:

ARNOLD & PORTER LLP

/s/ James L. Cooper (w/consent) 

James L. Cooper

Michael A. Rubin 

Laura Cofer Taylor 

Katherine Clemons

ARNOLD & PORTER LLP

555 Twelfth Street, NW 

Washington, DC 20004 

Telephone: (202) 942-5000 

Facsimile: (202) 942-5999 

james.cooper@aporter.com 

michael.rubin@aporter.com 

laura.taylor@aporter.com

katherine.clemons@aporter.com 

Joanne Geha Swanson (P33594) 

Fred Herrmann (P49519) 

Matthew L. Powell (P69186) 

KERR, RUSSELL AND WEBER, PLC

500 Woodward Avenue, Suite 2500 

Detroit, MI 48226

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Telephone: (313) 961-0200

Facsimile: (313) 961-0388 

jswanson@kerr-russell.com

fherrmann@kerr-russell.com

mpowell@kerr-russell.com

Attorneys for Defendant Fujikura Ltd. 

October 31, 2014 By:

LANE POWELL PC

/s/ Larry S. Gangnes (w/consent) 

Larry S. Gangnes 

LANE POWELL PC

1420 Fifth Avenue, Suite 4200 

P.O. Box 91302 

Seattle, WA 98111 

Telephone: (206) 223-7000 

Facsimile: (206) 223-7107 

gangnesl@lanepowell.com 

Craig D. Bachman

Kenneth R. Davis II 

Darin M. Sands 

Masayuki Yamaguchi

LANE POWELL PC

ODS Tower

601 SW Second Avenue, Suite 2100 

Portland, OR 97204 

Telephone: (503) 778-2100 

Facsimile: (503) 778-2200 

bachmanc@lanepowell.com 

davisk@lanepowell.com 

sandsd@lanepowell.com

yamaguchim@lanepowell.com 

Richard Bisio (P30246) 

Ronald S. Nixon (P57117) 

KEMP KLEIN LAW FIRM

201 West Big Beaver Road, Suite 600 

Troy, MI 48084 

Telephone: (248) 528-1111 

Facsimile: (248) 528-5129 

richard.bisio@kkue.com 

ron.nixon@kkue.com 

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Attorneys for Defendants Furukawa Electric Co., 

Ltd. and American Furukawa, Inc.

October 31, 2014 By:

PORTER WRIGHT MORRIS & 

ARTHUR LLP

/s/ Donald M. Barnes (w/consent) 

Donald M. Barnes 

Jay L. Levine 

Molly S. Crabtree 

John C. Monica, Jr. 

Jason E. Starling 

PORTER WRIGHT MORRIS & 

ARTHUR LLP

1900 K Street, NW, Suite 1110 

Washington, DC 20006 

Telephone: (202) 778-3000 

Facsimile: (202) 778-3063 

dbarnes@porterwright.com 

jlevine@porterwright.com

mcrabtree@porterwright.com 

jmonica@porterwright.com 

jstarling@porterwright.com

Attorneys for Defendants G.S. Electech, Inc., 

G.S.W. Manufacturing, Inc., and G.S. Wiring 

Systems, Inc.

October 31, 2014 By:

O’MELVENY & MYERS LLP

/s/ Michael F. Tubach (w/consent) 

Michael F. Tubach 

O’MELVENY & MYERS LLP

Two Embarcadero Center, 28th Floor 

San Francisco, CA 94111 

Telephone: (415) 984-8700 

Facsimile: (415) 984-8701 

mtubach@omm.com 

Michael R. Turco

BROOKS WILKINS SHARKEY & TURCO 

PLLC

401 South Old Woodward, Suite 400 

Birmingham, MI 48009 

turco@bwst-law.com

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Telephone: (248) 971-1713

Facsimile: (248) 971-1801 

Attorneys for Defendants Leoni Wiring Systems, 

Inc. and Leonische Holding Inc. 

October 31, 2014 By:

LATHAM & WATKINS LLP

/s/ Marguerite M. Sullivan (w/consent) 

Marguerite M. Sullivan

LATHAM & WATKINS

555 Eleventh Street NW, Suite 1000 

Washington, DC 20004 

Telephone: (202) 637-2200 

Facsimile: (202) 637-2201 

marguerite.sullivan@lw.com

Daniel M. Wall

LATHAM & WATKINS

505 Montgomery Street, Suite 2000 

San Francisco, CA 94111 

Telephone: (415) 395-0600 

Facsimile: (415) 395-8095 

dan.wall@lw.com 

William H. Horton (P31567)

GIARMARCO, MULLINS & HORTON, P.C.

101 West Big Beaver Road, Tenth Floor 

Troy, MI 48084-5280 

Telephone: (248) 457-7060 

Facsimile: (248) 457-7001 

bhorton@gmhlaw.com 

Attorneys for Defendants Sumitomo Electric 

Industries, Ltd., Sumitomo Wiring Systems, Ltd., 

Sumitomo Electric Wiring Systems, Inc., K&S 

Wiring Systems, Inc., Sumitomo Electric Wintec 

America, Inc., and Sumitomo Wiring Systems 

(U.S.A.) Inc. 

October 31, 2014 By:

BUTZEL LONG

/s/ David F. DuMouchel (w/consent) 

David F. DuMouchel

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Sheldon H. Klein

George B. Donnini 

BUTZEL LONG

150 West Jefferson, Suite 100 

Detroit, MI 48226 

Telephone: (313) 225-7000 

Facsimile: (313) 225-7080 

dumouched@butzel.com 

klein@butzel.com 

donnini@butzel.com 

W. Todd Miller 

BAKER & MILLER PLLC

2401 Pennsylvania Avenue, NW 

Suite 300 

Washington, DC 20037 

Telephone: (202) 663-7820 

Facsimile: (202) 663-7849 

TMiller@bakerandmiller.com

Attorneys for Defendants TRAM, Inc. and 

Tokai Rika Co., Ltd. 

October 31, 2014 By:

JONES DAY

/s/ John M. Majoras (w/consent) 

John M. Majoras 

Michael R. Shumaker

Carmen G. McLean

Tiffany D. Lipscomb-Jackson

JONES DAY

51 Louisiana Avenue, NW 

Washington, DC 20001-2113 

Telephone: (202) 879-3939 

Facsimile: (202) 626-1700 

jmmajoras@jonesday.com

mrshumaker@jonesday.com 

cgmclean@jonesday.com 

tdlipscombjackson@jonesday.com 

Michelle K. Fischer

Stephen J. Squeri 

JONES DAY

North Point 

901 Lakeside Avenue

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Cleveland, OH 44114

Telephone: (216) 586-3939 

Facsimile: (216) 579-0212 

mfischer@jonesday.com

sjsqueri@jonesday.com 

Attorneys for Defendants Yazaki Corporation and 

Yazaki North America, Inc. 

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CERTIFICATE OF SERVICE

I hereby certify that on October 31, 2014, I caused the foregoing Defendants’ Collective 

Motion (1) To Dismiss All Class Components Of The Complaint And (2) For A More Definite 

Statement Regarding Named Plaintiffs’ Individual Claims to be electronically filed with the 

Clerk of the Court using the CM/ECF system, which will send notifications of such filings to all 

counsel of record. 

Dated: October 31, 2014 By: /s/ Steven F. Cherry 

Steven F. Cherry 

WILMER CUTLER PICKERING HALE AND 

DORR LLP

1875 Pennsylvania Avenue, NW 

Washington, DC 20006 

Telephone: (202) 663-6000 

Facsimile: (202) 663-6363 

steven.cherry@wilmerhale.com

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