UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

IN RE: REFRIGERANT

COMPRESSORS ANTITRUST

LITIGATION

)

)

)

)

)

)

)

No. 2:09-md-2042

MDL. No. 2042

Honorable Sean F. Cox

THIS DOCUMENT RELATES TO:

General Electric Co. v. Whirlpool Corp.,

et al., No. 2:13-12638

MOTION BY DEFENDANTS EMBRACO NORTH AMERICA, INC.,

WHIRLPOOL S.A., AND WHIRLPOOL CORPORATION FOR LEAVE TO

FILE A RESPONSE TO GENERAL ELECTRIC’S SURREPLY

2:09-md-02042-SFC Doc # 440 Filed 11/05/13 Pg 1 of 11 Pg ID 10664
1

The Embraco Defendants and Whirlpool Corp. respectfully request the

Court to enter an Order allowing them to file a Response to Plaintiff’s Surreply in

Further Opposition to the Embraco Defendants’ and Danfoss Defendants’ Motions

to Stay Litigation (“Surreply”).1

1. GE elected to file its Surreply in order to assert a new legal theory

based on a case cited in passing in its Opposition and several additional cases it

had not previously cited. In applying this purported theory, GE makes the

mischaracterization that it has proffered “unrebutted evidence” establishing that it

was fraudulently induced to use its own standard arbitration clause. It is only fair

for the Embraco Defendants and Whirlpool Corp. to have the opportunity to

respond to this new theory and to rebut this mischaracterization, which they do in

their proposed Response, attached hereto as Exhibit A.

2. In accordance with Local Rule 7.1(a), counsel for the Embraco

Defendants and Whirlpool Corp. conferred with counsel for GE to explain the

1 Capitalized terms not defined here have the same meaning as in the Motion

and Brief in Support of Motion by Embraco North America, Inc., Whirlpool S.A.,

and Whirlpool Corporation to Stay Proceedings Pending Arbitration Pursuant to 9

U.S.C. § 3, Aug. 16, 2013, ECF No. 390 (“Embraco’s Mot.”). Capitalized terms

not defined here also have the same meaning as in the Reply in Support of Motion

by Embraco North America, Inc., Whirlpool S.A., and Whirlpool Corporation to

Stay Proceedings Pending Arbitration Pursuant to 9 U.S.C. § 3, Sept. 30, 2013,

ECF No. 423 (“Embraco’s Reply”).

2:09-md-02042-SFC Doc # 440 Filed 11/05/13 Pg 2 of 11 Pg ID 10665
2

nature and legal basis of this motion but was unable to obtain GE’s concurrence.2

Counsel for the Embraco Defendants and Whirlpool Corp. also conferred with

counsel for Danfoss, and Danfoss consents to and supports this motion.

DATED: November 5, 2013

Respectfully submitted,

By: /s/ Howard B. Iwrey

Howard B. Iwrey (P39365)

Dykema Gossett PLLC

39577 Woodward Avenue, Suite 300

Bloomfield Hills, Michigan 48304

Telephone: (248) 203-0841

E-mail: hiwrey@dykema.com

Matthew Slater (D.C. Bar # 386986)

Brian Byrne (D.C. Bar #449881)

Elaine Ewing (D.C. Bar # 985569)

Cleary Gottlieb Steen & Hamilton LLP

2000 Pennsylvania Avenue, NW

Washington, DC 20006

Telephone: (202) 974-1500

E-mail: mslater@cgsh.com

E-mail: bbyrne @cgsh.com

E-mail: eewing@cgsh.com

Counsel for Defendants Whirlpool S.A., Embraco North America, Inc., and

Whirlpool Corporation

2 On November 4, 2013, counsel for the Embraco Defendants and Whirlpool

Corp. communicated with counsel for GE via telephone regarding the Embraco

Defendants and Whirlpool Corp.’s request for concurrence in the Embraco

Defendants and Whirlpool Corp.’s Motion for Leave to File a Response to GE’s

Surreply.

2:09-md-02042-SFC Doc # 440 Filed 11/05/13 Pg 3 of 11 Pg ID 10666
3

2:09-md-02042-SFC Doc # 440 Filed 11/05/13 Pg 4 of 11 Pg ID 10667
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

IN RE: REFRIGERANT

COMPRESSORS ANTITRUST

LITIGATION

)

)

)

)

)

)

)

No. 2:09-md-2042

MDL. No. 2042

Honorable Sean F. Cox

THIS DOCUMENT RELATES TO:

General Electric Co. v. Whirlpool Corp.,

et al., No. 2:13-12638

BRIEF IN SUPPORT OF MOTION BY DEFENDANTS EMBRACO

NORTH AMERICA, INC., WHIRLPOOL S.A., AND WHIRLPOOL

CORPORATION FOR LEAVE TO FILE A RESPONSE TO GENERAL

ELECTRIC’S SURREPLY

2:09-md-02042-SFC Doc # 440 Filed 11/05/13 Pg 5 of 11 Pg ID 10668
TABLE OF CONTENTS

Page

-iISSUE PRESENTED

Should the Court grant the Embraco Defendants and Whirlpool Corp. leave

to file a Response to Plaintiff GE’s Surreply?

Embraco Defendants and Whirlpool Corp.’s Answer: Yes

2:09-md-02042-SFC Doc # 440 Filed 11/05/13 Pg 6 of 11 Pg ID 10669
-iiCONTROLLING AUTHORITIES

Engineering & Manufacturing Services, LLC v. Ashton,

387 F. App'x 575 (6th Cir. 2010)

Saad v. City of Dearborn Heights,

876 F. Supp. 2d 925 (E.D. Mich. 2012)

2:09-md-02042-SFC Doc # 440 Filed 11/05/13 Pg 7 of 11 Pg ID 10670
- 1 -

ISSUE PRESENTED...................................................................................................................... i

INDEX OF CONTROLLING AUTHORITIES ............................................................................ ii

ARGUMENT.............................................................................................................................- 2 -

CONCLUSION..........................................................................................................................- 3 -

2:09-md-02042-SFC Doc # 440 Filed 11/05/13 Pg 8 of 11 Pg ID 10671
- 2 -

ARGUMENT

GE elected to file a Surreply in order to offer a new legal standard, and the

Embraco Defendants and Whirlpool Corp. should have the opportunity to respond

to that standard and its misapplication by GE.

GE’s Surreply takes a Third Circuit case, Guidotti v. Legal Helpers Debt

Resolution, L.L.C., 716 F.3d 764 (3d Cir. 2013), cited in a footnote in its

Opposition, as well as several cases it had not previously cited, and asserts that

they form the appropriate legal standard here. Surreply at 2. GE’s Surreply also

makes the erroneous assertion that its “unrebutted evidence” creates a genuine

dispute about the validity of its arbitration clauses, ignoring controlling legal

precedent under which GE’s allegations are insufficient as a matter of law.

Surreply at 2-3.

Simple fairness and due process call for the Embraco Defendants and

Whirlpool Corp. to have the opportunity, through the attached proposed Response

to GE’s Surreply, to address GE’s new standard and GE’s mischaracterizations,

even if only briefly. See Eng’g & Mfg. Servs., LLC v. Ashton, 387 F. App’x 575,

583 (6th Cir. 2010); see also Saad v. City of Dearborn Heights, 876 F. Supp. 2d

925, 935 (E.D. Mich. 2012) (“[T]he Court has discretion to permit [a surreply]

where it is reasonable.”).

2:09-md-02042-SFC Doc # 440 Filed 11/05/13 Pg 9 of 11 Pg ID 10672
- 3 -

CONCLUSION

For the foregoing reasons, the Embraco Defendants and Whirlpool Corp.

respectfully request that the Court enter an Order granting it leave to file its

Response, attached hereto as Exhibit A.

DATED: November 5, 2013

Respectfully submitted,

By: /s/ Howard B. Iwrey

Howard B. Iwrey (P39365)

Dykema Gossett PLLC

39577 Woodward Avenue, Suite 300

Bloomfield Hills, Michigan 48304

Telephone: (248) 203-0841

E-mail: hiwrey@dykema.com

Matthew Slater (D.C. Bar # 386986)

Brian Byrne (D.C. Bar #449881)

Elaine Ewing (D.C. Bar # 985569)

Cleary Gottlieb Steen & Hamilton LLP

2000 Pennsylvania Avenue, NW

Washington, DC 20006

Telephone: (202) 974-1500

E-mail: mslater@cgsh.com

E-mail: bbyrne @cgsh.com

E-mail: eewing@cgsh.com

Counsel for Defendants Whirlpool S.A., Embraco North America, Inc., and

Whirlpool Corporation

2:09-md-02042-SFC Doc # 440 Filed 11/05/13 Pg 10 of 11 Pg ID 10673
CERTIFICATE OF SERVICE

I hereby certify that on November 5, 2013 the foregoing Motion for Leave to

File a Response to General Electric’s Surreply was filed with the Court using the

ECF system, which will send notification to all counsel registered to receive

electronic notice from the Court’s electronic filing system.

/s/ Howard B. Iwrey

Howard B. Iwrey

2:09-md-02042-SFC Doc # 440 Filed 11/05/13 Pg 11 of 11 Pg ID 10674