UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

IN RE: REFRIGERANT

COMPRESSORS ANTITRUST

LITIGATION

MDL Docket No. 2:09-MD-2042

Hon. Sean F. Cox

THIS DOCUMENT RELATES TO:

General Electric Company v. Whirlpool

Corporation, et al.

Civil Action No. 2:13-cv-12638

RESPONSE TO MEMORANDUM BY DANFOSS DEFENDANTS IN

SUPPORT OF MOTION BY EMBRACO NORTH AMERICA, INC.,

WHIRLPOOL S.A., AND WHIRLPOOL CORPORATION TO STAY

PROCEEDINGS BY GENERAL ELECTRIC COMPANY AGAINST

HOUSEHOLD COMPRESSORS HOLDING SPA AND ACC USA, LLC

AND BRIEF IN SUPPORT THEREOF

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TABLE OF CONTENTS

INDEX OF AUTHORITIES..................................................................................iii

STATEMENT OF ISSUE PRESENTED............................................................... iv

CONTROLLING OR MOST APPROPRIATE AUTHORITIES........................... v

PLAINTIFF GENERAL ELECTRIC COMPANY’S RESPONSE TO THE

MEMORANDUM OF THE DANFOSS DEFENDANTS IN SUPPORT OF THE

MOTION BY THE EMBRACO DEFENDANTS TO STAY DEFAULT

JUDGMENT PROCEEDINGS .............................................................................. 1

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INDEX OF AUTHORITIES

Shanghai Automation Instrument Co., Ltd. v. Kuei,

194 F. Supp. 2d 995 (N.D. Cal. 2001)..................................................................2

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STATEMENT OF ISSUE PRESENTED

Should the Court stay GE’s motion for default judgment against Household

Compressors Holding SpA and ACC USA, LLC?

GE answers no.

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CONTROLLING OR MOST APPROPRIATE AUTHORITIES

Shanghai Automation Instrument Co., Ltd. v. Kuei,

194 F. Supp. 2d 995 (N.D. Cal. 2001)

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PLAINTIFF GENERAL ELECTRIC COMPANY’S RESPONSE TO

THE MEMORANDUM OF THE DANFOSS DEFENDANTS IN

SUPPORT OF THE MOTION BY THE EMBRACO DEFENDANTS

TO STAY DEFAULT JUDGMENT PROCEEDINGS

On November 12, 2013, Danfoss filed a belated “memorandum”1in support

of the earlier motion2filed by the Embraco defendants3that seeks to stay

proceedings by GE against the ACC defendants.4 Danfoss’s memorandum offers

no new arguments in support of Embraco’s motion, merely parroting and

incorporating the arguments made by Embraco. Accordingly, the arguments offered

by the Danfoss defendants fail for the reasons articulated in GE’s opposition to

Embraco’s motion,5 which is incorporated herein in its entirety.

Although Danfoss did not offer any additional arguments in its brief, it

obliquely suggests in a footnote that it is positioned differently from the other

defendants in this action because of “the product distinction and the limited time

1 No. 2:09-md-02042, ECF No. 442; No. 2:13-cv-12638, ECF No. 52

(Danfoss Mem.).

2 No. 2:09-md-02042, ECF No. 439; No. 2:13-cv-12638, ECF No. 49.

3

The term “Embraco” is used herein to refer to defendants Whirlpool Corp.,

Whirlpool S.A., and Embraco North America, Inc.

4

The term “ACC” is used herein to refer to defendants ACC USA, LLC and

Household Compressors Holding SpA.

5 No. 2:09-md-02042, ECF No. 444; No. 2:13-cv-12638, ECF No. 53 (GE

Opp’n).

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period involved in its plea agreement.”6 Danfoss seems to suggest that a jury may

not conclude that Danfoss participated in the compressors cartel. Besides being an

extremely dubious proposition, this is not the type of “logical inconsistency” that

favors delaying entry of a default judgment. It is always possible in a Sherman Act

case that a particular defendant may persuade a jury that it was not a participant in

the cartel. See Shanghai Automation Instrument Co. v. Kuei, 194 F. Supp. 2d 995,

1008 (N.D. Cal. 2001) (discussing the caselaw on inconsistent judgments and

observing that “there are situations . . . where it [i]s theoretically proper to hold

some defendants liable, e.g. for conspiracy to commit anti-trust violations, but

other defendants innocent”). Indeed, if ACC had chosen to answer the Complaint

and contest GE’s claims, there would have been nothing “inconsistent” about a jury

ultimately finding that ACC had participated in the household compressor

conspiracy, but deciding that Danfoss had not.

Like Embraco, Danfoss offers no reason for the Court to delay entry of a

default judgment as to liability against the ACC defendants. When compared with

the obvious potential prejudice to GE,7 Danfoss’s speculation regarding a

theoretical “inconsistency” in judgments should be given little, if any, weight.

6 Danfoss Mem. at 4 n.2.

7 GE Opp’n at 8-9.

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GE thus respectfully asks the Court to deny Danfoss’s request to stay GE’s

proceedings against ACC.

Respectfully submitted,

/s/ Kimberly L. Scott

Carl H. von Ende, Bar No. P21867

Kimberly L. Scott, Bar No. P69706

Miller Canfield P.L.C.

101 North Main Street, 7th Floor

Ann Arbor, Michigan 48104

734-668-7696

Counsel for Plaintiff

David M. Schnorrenberg

dschnorrenberg@crowell.com

Crowell & Moring LLP

1001 Pennsylvania Avenue, N.W.

Washington, D.C. 20004

202-624-2500

Date: November 26, 2013

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CERTIFICATE OF SERVICE

I hereby certify that on November 26, 2013, I electronically filed the

foregoing paper with the Clerk of the Court using the ECF system, which will send

notification of such filing to counsel of record registered to receive electronic

service.

/s/ Kimberly L. Scott

Kimberly L. Scott, Bar. No. P69706

scott@millercanfield.com

Miller Canfield P.L.C.

101 North Main Street, 7th Floor

Ann Arbor, Michigan 48014

734-668-7696

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