UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

IN RE: AUTOMOTIVE PARTS 

ANTITRUST LITIGATION

Master File No. 12-md-02311

Hon. Marianne O. Battani

IN RE: SPARK PLUGS

IN RE: OXYGEN SENSORS

Case No. 2:15-cv-03001

Case No. 2:15-cv-11774

Case No. 2:16-cv-13506

Case No. 2:15-cv-03101

Case No. 2:15-cv-12918

Case No. 2:15-cv-11831

THIS DOCUMENT RELATES TO

ALL DIRECT PURCHASER ACTIONS 

OPINION AND ORDER DENYING DIRECT PURCHASER PLAINTIFFS’ 

MOTION TO CERTIFY THE COURT’S APRIL 18, 2017 

ORDER FOR INTERLOCUTORY APPEAL

Before the Court is Direct Purchaser Plaintiffs’ request that the Court certify for

interlocutory appeal its April 18, 2017 Opinion and Order (“Order”), which granted

Defendants’ motions to dismiss Direct Purchaser Plaintiffs’ complaints. (Doc. Nos. 52 in

15-3001; 18 in 16-13506; 43 in 15-11774; 59 in 15-3101; 44 in 15-11831; 40 in 15-

12908). The Court has reviewed all the relevant filings and finds oral argument will not

aid in the resolution of this dispute. See E. D. Mich. LR 7.1(f)(2). For the reasons that

follow, the motion is DENIED.

I. INTRODUCTION AND PROCEDURAL BACKGROUND

On May 18, 2015, certain of the Direct Purchaser Plaintiffs (“DPPs”) filed class

action complaints against NGK Spark Plug Co., Ltd., NGK Spark Plugs (U.S.A.), Inc.,

NGK Spark Plugs (U.S.A.) Holding, Inc., and NTK Technologies, Inc. (collectively,

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“NGK”), DENSO Corporation, DENSO International America, Inc., and DENSO

Products and Services Americas, Inc. (collectively, “DENSO”), and Robert Bosch GmbH

and Robert Bosch LLC (collectively, “Bosch”), alleging antitrust violations relating to the

sale of Spark Plugs. (Case No. 15-11774, Doc. 1). On May 20, 2015, certain of the

DPPs separately filed class action complaints – which were consolidated and merged

on October 1, 2015 – against NGK, DENSO, and Bosch, alleging antitrust violations

relating to the sale of Oxygen Sensors. (See e.g. Case No. 15-03101, Doc. 11). DPPs

claims against NGK arose out of its direct liability arising from its own sales of Spark

Plugs and Oxygen Sensors and on its joint and several liability for sales made by Bosch

and DENSO. DPPs brought claims against DENSO based on its joint and several

liability for purchases of Spark Plugs and Oxygen Sensors from Bosch and NGK. DPPs

did not seek damages arising from purchases made directly from DENSO.

Thereafter, Defendants DENSO and NGK asked the Court to either dismiss or

stay, pending arbitration, the actions relating to Spark Plugs and Oxygen Sensors on

the ground that these matters were subject to arbitration pursuant to the doctrine of

equitable estoppel. The Court granted DENSO’s motion and dismissed the claims

brought against DENSO based on purchases made from Bosch and stayed the claims

brought against DENSO based on purchases made from NGK. In addition, the Court

granted NGK’s motion and dismissed the claims brought against NGK based on

purchases made from Bosch or DENSO, and stayed the claims brought against NGK

based on purchases made directly from NGK. The basis supporting the Court’s

determination is summarized below. 

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First, DPPs’ claims against DENSO in both the Spark Plugs and Oxygen Sensor

cases were premised on DENSO’s joint and several liability for the damages alleged to

be attributable to purchases from Bosch and NGK. DPPs did not bring suit against

DENSO based on purchases made directly from DENSO. Therefore, to the extent that

DPPs sought to hold DENSO jointly and severally liable for purchases from Bosch,

DENSO persuasively argued the claims had to be arbitrated pursuant to the arbitration

clause incorporated by reference into the Bosch sales invoices under the doctrine of

equitable estoppel. 

It is undisputed that every one of the relevant Bosch sales invoices “contained an

acknowledgment that the purchase order was subject to the terms and conditions of

sale.” (See Order at 2). Further, “[t]he terms and conditions contain an agreement to

arbitrate ‘all disputes between the parties arising out of or related to this Agreement,’

and designate Michigan law as controlling.” (Id.) DENSO’s relevant distributor

agreements likewise ‘contain agreements to arbitrate “[a]ny controversy or claim arising

out of or relating to this Agreement,’ and designate California law as controlling.” (Id.) 

Finally, there was no arbitration agreement in the purchase orders executed with NGK. 

DENSO also successfully argued that DPPs’ claims based on purchases from NGK

must be stayed pending the outcome of arbitration of the Bosch claims because any

damages flowing from NGK’s sales were part and parcel of the same alleged

conspiracy.

In its analysis, the Court recognized that a nonparty to an agreement may not be

bound by its terms absent a recognized exception, and that estoppel was a recognized

exception. AFSCME Council 25 v. Wayne Cty., 811 N.W.2d 4, 11, 12 (Mich. Ct. App.

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2011) (citing Thomson-CSF, S.A. v. Am. Arbitration Ass'n, 64 F.3d 773, 776 (2d Cir.

1995)). The Court further recognized that state law governed the availability of

estoppel, and that Michigan law governed whether DENSO could enforce the Bosch

arbitration agreement as a nonsignatory.

II. STANDARD OF REVIEW

Interlocutory appeals in the federal system generally are disfavored. Firestone

Tire & Rubber Co. v. Risjord, 449 U.S. 368 (1981). “Routine resort to § 1292(b)

requests would hardly comport with Congress' design to reserve interlocutory review for

‘exceptional’ cases while generally retaining for the federal courts a firm final judgment

rule.” Caterpillar v. Lewis, 519 U.S. 61, 74 (1996). Accordingly, a party seeking an

interlocutory appeal has the burden of showing exceptional circumstances exist

warranting an interlocutory appeal. W. Tenn. Chapter of Assoc. Builders & Contractors,

Inc. v. City of Memphis (In re City of Memphis), 293 F.3d 345, 350 (6th Cir. 2002); Vitols

v. Citizens Banking Co., 984 F.2d 168, 170 (6th Cir. 1993).

Under the statute:

When a district judge, in making in a civil action an order not otherwise

appealable under this section, shall be of the opinion that such order

involves a controlling question of law as to which there is substantial

ground for difference of opinion and that an immediate appeal from the

order may materially advance the ultimate termination of the litigation, he

shall so state in writing in such order. The Court of Appeals which would

have jurisdiction of an appeal of such action may thereupon, in its

discretion, permit an appeal to be taken from such order, if application is

made to it within ten days after the entry of the order: Provided, however,

That application for an appeal hereunder shall not stay proceedings in the

district court unless the district judge or the Court of Appeals or a judge

thereof shall so order.

28 U.S.C.A. § 1292(b) (West 2006).

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III. ANALYSIS

In support of their motion, Direct Purchaser Plaintiffs assert that the orders

granting Defendants’ motions to dismiss and stay the actions should be certified for

interlocutory appeal because the orders present a controlling question of law for which

there is substantial ground for difference of opinion and for which an immediate appeal

may materially advance the ultimate termination of this litigation. 

Before turning to the merits, the Court addresses NGK’s assertion that DPPs’

motion is untimely. The request for certification was filed thirty-five days after the Court

entered its Order. Numerous courts have held that requests for certification need only

be filed within a “reasonable time.” See e.g. McKinstry v. Sergent, No. 11-133-ART,

2012 WL 3731304 at *3 (E.D. Ky. Aug. 28, 2012) (quotation omitted). There is no basis

to find the amount of time between the entry of the Order and the filing of the motion is

unreasonable. Moreover, NGK has suffered no prejudice as a result of the passage of

thirty-five days. Therefore, the Court turns its attention to whether DPPs have satisfied

the factors needed for the Court to certify an interlocutory appeal.

A. Controlling Question of Law

DPPs assert that their request for interlocutory appeal meets the first prong of the

test. Under Sixth Circuit authority, a legal issue is controlling if “it could materially affect

the outcome of the case.” In re City of Memphis, 293 F.3d 345, 351 (6th Cir. 1992)

(citations omitted). 

According to DPPs, the controlling issue of law is “whether, for purposes of

applying equitable estoppel doctrine to allow a co-conspirator nonsignatory of an

agreement to enforce an arbitration provision in that agreement, a plaintiff’s antitrust

claim is ‘dependent on and intertwined. . .in a fundamental way’ with an arbitration

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provision simply because the plaintiff’s purchases were made through a sales invoice

that incorporated the arbitration provision by reference.” (DPPs’ Brief, Doc. No. 40 in

15-12918 at 1) (citing Order at 15). 

Defendants contest DPPs’ characterization of the issue as involving a controlling

question of law. Defendants contend that the question is fact-based inasmuch as DPPs

do not challenge whether the Court applied the proper test. Nor would DPPs challenge

the test used by the Court because it applied the more stringent, two-pronged test

favored by DPPs. Specifically, the Court held that under Michigan law, a nonsignatory

had to show both that the plaintiffs had raised allegations of interdependent and

concerted misconduct and that the plaintiffs’ claims related to the agreement containing

an arbitration clause. (Order at 12). The Court then determined that Defendants

satisfied both prongs of the test. First, the claims advanced against DENSO involved

substantially interdependent or concerted misconduct between DENSO and Bosch. 

The Court further determined that the claims relied on or were intertwined with the

underlying contracts – that is, the Bosch sales invoices, reasoning that “[a]bsent these

Bosch sales invoices, DPPs would have suffered no damages related to purchases

made from Bosch.” (Order at 15). “Consequently, DPPs’ claims are dependent on and

intertwined with the Bosch sales invoices in a fundamental way.” (Order at 15).

Accordingly, the Court agrees with Defendants: Plaintiffs do not seek immediate

review of the Court’s ruling that both factors must be established to apply equitable

estoppel under Michigan law. They instead seek review of the Court’s application of the

test to the facts alleged. Therefore, the first factor is not met. 

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B. Substantial Ground for Difference of Opinion

Next, DPPs argue that there is substantial ground for difference of opinion

regarding the applicability of equitable estoppel to their claims. In the Sixth Circuit, 

the district courts have interpreted the “substantial ground for difference of opinion. . .regarding the correctness of the decision” as meaning “(1) the question is difficult,

novel and either a question on which there is little precedent or one whose correct

resolution is not substantially guided by previous decisions; (2) the question is difficult

and of first impression; (3) a difference of opinion exists within the controlling circuit; or

(4) the circuits are split on the question.” In re Miedzianowski, 13-101, 2013 WL

4436545 (6th Cir. Aug. 20, 2013) (citing City of Dearborn v. Comcast of Mich. III, Inc.,

No. 08-10156, 2008 WL 5084203, at *3 (E. D. Mich. Nov. 24, 2008).

Here, DPPs argue that the Court acknowledged in its opinion that case law “lacks

some clarity,” and that there are “no cases within Michigan providing controlling

authority.” (DPPs’ Brief, Doc. No. 40 in 15-12918 at 4) (citing Order at 6, 10). In

addition, courts outside the Sixth Circuit have required “allegations of substantially

interdependent and concerted misconduct unless there is some meaningful link

between that alleged misconduct and the rights and obligations of the underlying

agreement” to apply equitable estoppel. (DPPs’ Brief, Doc. No. 40 in 15-12918 at 5). 

DPPs argue that this Court’s Order stands alone in applying equitable estoppel given

the reliance on a standard sales invoice which merely incorporates an arbitration

provision by reference. 

The Court nevertheless finds that DPPs have not satisfied their burden relative to

the second requirement. This Court conducted a thorough review of the case law and

determined that the proper test for the application of estoppel requires “both that the

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nonsignatory being compelled to arbitrate has a close relationship with one of the

signatories and that the claims raised by the plaintiffs are related to the agreement

containing an arbitration clause.” (Order at 12, citing Thomas v. Right Choice Staffing

Group, LLC, No. 15-10055, 2015 U.S. Dist. LEXIS 87073, at *18-19 (E.D. Mich. July 6,

2015); Southerland v. Corp. Transit of Am., No. 13-14462, 2014 U.S. Dist. LEXIS

138117, at *5 (E.D. Mich. Sept. 20, 2014)). DPPs did not cite any case law

demonstrating that the Michigan test for equitable estoppel is not met under the facts

and circumstances presented here. Previous decisions provided sufficient guidance.

 The Court is not persuaded to the contrary by authority from other circuits

interpreting the law of other states. Here, Michigan law is controlling. 

 C. Advancement of the Ultimate Termination of the Litigation

Lastly, the Court finds DPPs have failed to satisfy the third requirement under §

1292(b)--an immediate appeal from the order may materially advance the ultimate

termination of the litigation. The moving party meets this requirement when the

resolution of a controlling legal question not only may avoid trial, but also when the

resolution would “otherwise substantially shorten the litigation.“ The Clark Constr.

Group, Inc. v. Allglass Sys., Inc., No. Civ. A. DKC 2002-1590, 2005 WL 736606, at *4

(D. Md. March 30, 2005) (citing 16 Charles Alan Wright, Arthur R. Miller & Edward H.

Cooper, Federal Practice and Procedure § 3930, at 432 (2nd ed.1996)). 

DPPs contend that absent interlocutory review, they would have to arbitrate their

claims based on purchases from DENSO and Bosch and then return to Court to litigate

their claim based on purchases from NGK. If the Court’s order on equitable estoppel

were reversed, the resources dedicated to arbitration would be wasted. Moreover,

DENSO and Bosch are defendants or alleged co-conspirators in many cases. 

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The Court disagrees that arbitration would waste time or money. In this case,

DPPs must pursue their claims against DENSO arising out of direct purchases through

arbitration. The arbitration would likely resolve any claims against DENSO based on

joint and several liability, and will do so in an expeditious manner. An interlocutory

appeal will only delay the resolution of those claims. 

IV. CONCLUSION

For the foregoing reasons, the Court DENIES DPPs’ motion. 

IT IS SO ORDERED.

Date: September 12, 2017 s/Marianne O. Battani 

MARIANNE O. BATTANI

United States District Judge

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing Order was served upon counsel of record via the Court's ECF System to their

respective email addresses or First Class U.S. mail to the non-ECF participants on September 12, 2017.

s/ Kay Doaks 

Case Manager

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