united states district court district of...

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

KIRK DAHL, et al., Plaintiffs, v. BAIN CAPITAL PARTNERS LLC, et al., Defendants.

CIVIL ACTION NO.: 07-12388-EFH ORAL ARGUMENT REQUESTED

PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

(Leave to File in Excess of 20 Pages

Granted on October 7, 2013)

Case 1:07-cv-12388-WGY Document 928 Filed 10/21/13 of 56

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TABLE OF CONTENTS I. INTRODUCTION .............................................................................................................. 1

II. BACKGROUND ................................................................................................................ 4

A. Procedural History .................................................................................................. 5

B. Factual Background ................................................................................................ 6

1. Plaintiffs’ Trial Evidence Is Common to the Classes ............................................. 6

2. Defendants’ Trial Evidence Is Common to the Classes .......................................... 9

III. ARGUMENT .................................................................................................................... 10

A. Legal Standards for Rule 23(b)(3) Class Certification ......................................... 10

B. The Classes Satisfy Rule 23(a) Requirements ...................................................... 11

1. The Many Thousands of Class Members Make Joinder Impracticable ................ 11

2. Questions of Fact and Law Are Common to the Classes ...................................... 13

3. Plaintiffs’ Claims Are Typical .............................................................................. 15

4. Plaintiffs Will Fairly and Adequately Protect the Interests of the Classes ........... 17

a. Plaintiffs’ Unanimity of Interests with Class Members Make Them Adequate Class Representatives ............................................................... 18

b. Plaintiffs Are Qualified to Represent the Classes ..................................... 18

c. Counsel Are Qualified to Represent the Classes and Should Be Appointed Class Counsel under Rule 23(g).............................................. 25

C. The Classes Satisfy the Elements of Rule 23(b)(3) .............................................. 27

1. Common Questions of Law or Fact Predominate over Individual Questions ...... 28

a. The Predominance Standard ..................................................................... 28

b. Proof of the Existence of the Agreement, and Its Terms and Participants, Will Involve Common Evidence .......................................... 29

c. Proof that Defendants’ Agreement Caused Antitrust Injury Will Involve Common Evidence ....................................................................... 30

d. Damages Are Measureable on a Class-Wide Basis .................................. 35

e. The Releases Do Not Prevent Plaintiffs from Using Common Evidence to Prove the Elements of Their Claims ..................................... 36


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2. Class Treatment Is Superior to Any Alternative Method of Adjudication ........... 40

IV. CONCLUSION ................................................................................................................. 43


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TABLE OF AUTHORITIES

Page(s) CASES

Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) ...........................................................................................................28, 40

Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, 133 S. Ct. 1184 (2013) .................................................................................................10, 11, 28

Andrews v. Bechtel Power Corp., 780 F.2d 124 (1st Cir. 1985) ....................................................................................................17

Brown v. Pro Football, Inc., 146 F.R.D. 1 (D.D.C. 1992) .......................................................................................................4

Carnegie v. Household Int’l, Inc., 376 F.3d 656 (7th Cir. 2004) ...................................................................................................41

Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013) .............................................................................................................35

Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326 (1980) .................................................................................................................27

Dovberg v. Dow Chem. Co., 195 F. Supp. 337 (E.D. Pa. 1961) ............................................................................................39

E.E.O.C. v. Waffle House, Inc., 534 U.S. 279 (2002) .................................................................................................................39

Garcia–Rubiera v. Calderon, 570 F.3d 443 (1st Cir. 2009) ....................................................................................................11

General Physiotherapy, Inc. v. Sybaritic, Inc., No. 4:03-cv-01058, 2006 WL 6867777 (E.D. Mo. June 14, 2006) .........................................39

George v. Nat’l Water Main Cleaning Co., 286 F.R.D. 168 (D. Mass. 2012) ..............................................................................................28

Gintis v. Bouchard Transp. Co., Inc., 596 F.3d 64 (1st Cir. 2010) ......................................................................................................41

Grace v. Perception Tech. Corp., 128 F.R.D. 165 (D. Mass. 1989) ..............................................................................................12

Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481 (1968) .................................................................................................................31


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In re Boston Scientific Corp. Sec. Litig., 604 F. Supp. 2d 275 (D. Mass. 2009) ......................................................................................41

In re Carbon Black Antitrust Litig., 03-10191, MDL No. 1543, 2005 WL 102966 (D. Mass. Jan. 18, 2005) ......................... passim

In re Catfish Antitrust Litig., 826 F. Supp. 1019 (N.D. Miss. 1993) ......................................................................................31

In re Chocolate Confectionary Antitrust Litig., 289 F.R.D. 200 (M.D. Pa. 2012) ..............................................................................................14

In re Eaton Vance Corp. Sec. Litig., 219 F.R.D. 38 (D. Mass. 2005) ................................................................................................12

In re Evergreen Ultra Short Opportunities Fund Sec. Litig., 275 F.R.D. 382 (D. Mass. 2011) ..................................................................................12, 15, 17

In re Foundry Resins Antitrust Litig., 242 F.R.D. 393 (S.D. Ohio 2007) ............................................................................................31

In re Hannaford Bros. Co. Customer Data Sec. Breach Litig., 2:08-MD-1954-DBH, 2013 WL 1182733 (D. Me. Mar. 20, 2013) .........................................11

In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305 (3d Cir. 2008).....................................................................................................29

In re Linerboard Antitrust Litig., 305 F.3d 145 (3d Cir. 2002)...............................................................................................30, 32

In re Lupron Mktg. and Sales Practices Litig., 228 F.R.D. 75 (D. Mass. 2005) ................................................................................................42

In re NASDAQ Market-Makers Antitrust Litig., 169 F.R.D. 493 (S.D.N.Y. 1996) ...........................................................................14, 16, 17, 29

In re New Motor Vehicles Canadian Export Antitrust Litig., 522 F.3d 6 (1st Cir. 2008) ......................................................................................10, 13, 28, 30

In re Pharm. Indus. Average Wholesale Price Litig., 277 F.R.D. 52 (D. Mass. 2011) ..........................................................................................15, 24

In re PolyMedica Corp. Sec. Litig., 432 F.3d 1 (1st Cir. 2005) ........................................................................................................10

In re Potash Antitrust Litig., 159 F.R.D. 682 (D. Minn. 1995)........................................................................................28, 31


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In re Ready-Mixed Concrete Antitrust Litig., 261 F.R.D. 154 (S.D. Ind. 2009) ..............................................................................................31

In re Relafen Antitrust Litig., 218 F.R.D. 337 (D. Mass. 2003) ........................................................................................11, 16

In re Screws Antitrust Litig., 91 F.R.D. 52 (D. Mass. 1981) ............................................................................................11, 14

In re Sonus Networks, Inc. Sec. Litig., 247 F.R.D. 244 (D. Mass. 2007) ..............................................................................................11

In re Static Random Access Memory (SRAM) Antitrust Litig., 264 F.R.D. 603 (N.D. Cal. 2009) .......................................................................................17, 31

In re Titanium Dioxide Antitrust Litig., 284 F.R.D. 328 (D. Md. 2012) ...........................................................................................29, 30

In re Transkaryotic Therapies, Inc. Sec. Litig., No. 03-10165, 2005 WL 3178162 (D. Mass. Nov. 28, 2005) .................................................19

In re Urethane Antitrust Litig., 251 F.R.D. 629 (D. Kan. 2008)................................................................................................17

In re Vitamin C Antitrust Litig., 279 F.R.D. 90 (E.D.N.Y. 2012) ...............................................................................................14

In re Vitamins Antitrust Litig., 209 F.R.D. 251 (D.D.C. 2002) .....................................................................................17, 28, 30

In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838 (6th Cir. 2013) ...................................................................................................41

Johnson v. J. H. Yost Lumber Co., 117 F.2d 53 (8th Cir. 1941) .....................................................................................................39

Knevelbaard Dairies v. Kraft Foods, Inc., 232 F.3d 979 (9th Cir. 2000) ...................................................................................................31

Lee v. Life Ins. Co. of N. Am., 829 F. Supp. 529 (D.R.I. 1993), aff’d, 23 F.3d 14 (1st Cir. 1994) ..........................................29

Matamoros v. Starbucks Corp., 699 F.3d 129 (1st Cir. 2012) ....................................................................................................18

McCuin v. Secretary of Health and Human Services, 817 F.2d 161 (1st Cir. 1987) ....................................................................................................11


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McDonough v. Toys R Us, Inc., 638 F. Supp. 2d 461 (E.D. Penn. 2009) ...................................................................................32

Messner v. Northshore Univ. HealthSystem, 669 F.3d 802 (7th Cir. 2012) ...................................................................................................28

Metropolitan Property and Cas. Ins. Co. v. Shan Trac, Inc., 324 F.3d 20 (1st Cir. 2003) ......................................................................................................39

Natchitoches Parish Hosp. v. Service Dist. Tyco Int’l, Ltd., 247 F.R.D. 253 (D. Mass. 2008) ..................................................................................15, 16, 18

Pa. Dental Ass’n v. Med. Serv. Ass’n of Pa., 815 F.2d 270 (3d Cir. 1987).....................................................................................................31

Payne v. Goodyear Tire & Rubber Co., 216 F.R.D. 21 (D. Mass. 2003) ................................................................................................13

Richburg v. Palisades Collection LLC, 247 F.R.D. 457 (E.D. Pa. 2008) ...............................................................................................14

Smilow v. Southwestern Bell Mobile Sys., Inc., 323 F.3d 32 (1st Cir. 2003) ....................................................................................10, 27, 28, 29

Southern States Police Benev. Ass’n, Inc. v. First Choice Armor & Equip., Inc., 241 F.R.D. 85 (D. Mass. 2007) ................................................................................................14

Swack v. Credit Suisse First Boston, 230 F.R.D. 250 (D. Mass. 2005) ........................................................................................11, 12

U.S. v. Baker, 10 F.3d 1374 (9th Cir. 1993), overruled on other grounds by U.S. v. Nordby, 225 F.3d 1053 (9th Cir. 2000) .................................................................................................39

Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) .................................................................................................13, 14, 17

Yokoyama v. Midland Nat’l Life Ins. Co., 594 F.3d 1087 (9th Cir. 2010) .................................................................................................41

Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100 (1969) .................................................................................................................31

STATUTES, RULES AND REGULATIONS

Federal Rules of Civil Procedure Rule 12 .......................................................................................................................................1 Rule 12(b)(6) ..............................................................................................................................6


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Rule 12(f) ...................................................................................................................................6 Rule 23 ............................................................................................................................. passim Rule 23(a)......................................................................................................................... passim Rule 23(a)(1) ............................................................................................................................11 Rule 23(a)(1)-(4) ......................................................................................................................10 Rule 23(a)(2) ......................................................................................................................13, 15 Rule 23(a)(4) ......................................................................................................................18, 25 Rule 23(b) ................................................................................................................................10 Rule 23(b)(3) .................................................................................................................... passim Rule 23(b)(3)(A) ......................................................................................................................40 Rule 23(b)(3)(B) ......................................................................................................................40 Rule 23(b)(3)(C) ......................................................................................................................40 Rule 23(b)(3)(D) ......................................................................................................................41 Rule 23(c)(1)(B) .......................................................................................................................25 Rule 23(g) ....................................................................................................................25, 26, 27 Rule 23(g)(1)(B)-(C)(i) ............................................................................................................26 Rule 23(g)(1)(C)(ii) .................................................................................................................26 Rule 42(a).............................................................................................................................5, 40 Rule 56 .......................................................................................................................................1

15 U.S.C. §1...................................................................................................................................... passim §4...................................................................................................................................... passim §15..............................................................................................................................................2

OTHER AUTHORITIES

2 Phillip E. Areeda & Herbert Hovenkamp, ANTITRUST LAW, (rev. ed. 1995) ..........................................................................................................................31

Ewens, et al., The Price of Diversifiable Risk in Venture Capital and Private Equity, 26 REV. FINANC. STUD. 1853-89 (2013) ..................................................................................33

MANUAL FOR COMPLEX LITIGATION (4th ed. 2004) ...........................................................................................................................26


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EXPLANATION OF CITATION FORMS The following citation forms are used in this memorandum:

“Apollo” refers to Apollo Global Management, LLC

“Bain” refers to Bain Capital Partners, LLC

“Blackstone” refers to The Blackstone Group L.P.

“Carlyle” refers to The Carlyle Group LLC

“Goldman” refers to The Goldman Sachs Group, Inc.

“JPMorgan” refers to JP Morgan Chase & Co.

“KKR” refers to Kohlberg Kravis Roberts & Co. L.P.

“Silver Lake” refers to Silver Lake Technology Management, L.L.C.

“TPG” refers to TPG Capital L.P.

“THL” refers to Thomas H. Lee Partners, L.P.

“HCA Defendants” refers to Blackstone, Carlyle, Goldman, and TPG

“Plaintiffs” or “Named Plaintiffs” refer to Kirk Dahl, Police and Fire Retirement System of the City of Detroit, City of Omaha Police and Fire Retirement System, and Michael Wojno, as executor for the estate of Robert Zimmerman

“PEX” refers to the exhibits attached to the Declaration of Walter W. Noss in Support of Plaintiffs’ Motion for Class Certification

“W/W Class Rep.” refers to Expert Report of Simon J. Wilkie, Ph.D., and Michael A.

Williams, Ph.D., in Support of Plaintiffs’ Motion for Class Certification

“W/W SJ Rep. II” refers to Expert Reply Report of Simon J. Wilkie, Ph.D., and Michael A. Williams, Ph.D., dated May 16, 2013 (ECF No. 845 filed under seal), submitted in support of Plaintiffs’ Opposition to Defendants’ Renewed Motions for Summary Judgment

“W/W SJ Rep. III” refers to Expert Surreply Report of Simon J. Wilkie, Ph.D., and Michael A. Williams, Ph.D., dated June 26, 2013 (ECF No. 886 filed under seal), submitted in support of Plaintiffs’ Opposition to Defendants’ Renewed Motions for Summary Judgment

“Crudo Decl.” refers to the Declaration of Peter L. Crudo Re: Notice Process

“Sklenar Decl.” refers to the Declaration of James Sklenar in Support of Class

Certification


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“Thomas Decl.” refers to the Declaration of Cynthia Thomas in Support of Class Certification

“Wojno Decl.” refers to the Declaration of Michael Wojno in Support of Class Certification

“Noss Decl.” refers to the Declaration of Walter W. Noss in Support of Plaintiffs’ Motion for Class Certification

“March 13 SJ Order” refers to the Memorandum and Order issued March 13, 2013 (ECF No. 763)

“June 20 SJ Order” refers to the Memorandum and Order issued June 20, 2013 (ECF No. 876)

“July 16 SJ Order” refers to the Memorandum and Order issued July 16, 2013 (ECF No. 894)

“Aug. 29 SJ Order” refers to the Memorandum and Order issued August 29, 2013 (ECF No. 912)

“Pltfs.’ Opp. to THL Mot.” refers to Plaintiffs’ Response in Opposition to Defendant Thomas H. Lee’s Motion for Reconsideration

“THL Reply” refers to Reply Memorandum in Support of Motion for Reconsideration of Order Denying Thomas H. Lee Partners, L.P.’s Renewed Individual Motion for Summary Judgment


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I. INTRODUCTION

This case presents the paradigm for class action treatment under Rule 23. Directly as a

result of Defendants’ anticompetitive conduct, class members each received the exact same

depressed price per share for the target companies acquired by Defendants. Proof of Plaintiffs’

claims relies solely on common evidence both for liability and damages. Common issues do not

simply predominate in this case, as required by Rule 23(b)(3), they utterly dominate any

individual issues. There simply are no individual issues to consider. The case rests entirely on

Defendants’ actions. The Court should grant Plaintiffs’ Motion and certify the Proprietary Deal

Class and the HCA Class, as defined below.

After prosecuting this case for over five years, undertaking significant discovery burdens,

employing expert witnesses, and defeating multiple Rule 12 and Rule 56 motions, Plaintiffs Kirk

Dahl, Police and Fire Retirement System of the City of Detroit (“Detroit PFRS”), City of Omaha

Police and Fire Retirement System (“Omaha PFRS”), and Michael Wojno, as executor for the

estate of Robert Zimmerman, respectfully submit this Memorandum in support of their motion,

pursuant to Fed. R. Civ. P. 23(a) and (b)(3), for certification of two classes:

Proprietary Deal Class

All persons who sold their common stock of (1) AMC Entertainment Inc., (2) SunGard Data Systems Inc., (3) Aramark Corporation, (4) Kinder Morgan, Inc., (5) HCA Inc., (6) Freescale Semiconductor, Inc., (7) Harrah’s Entertainment, Inc., or (8) TXU Corp., directly to a Defendant or an entity controlled by a Defendant as part of the LBO for each of the preceding target companies. Excluded from the Proprietary Deal Class are the federal government; the Court and any members of the Court’s immediate family; Defendants, including their predecessors, successors, and affiliates, as well as their current and former directors, managers, partners, officers, and employees; and the directors and officers of each target company at the time of the LBO.


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HCA Class

All persons who sold their common stock of HCA Inc. directly to a Defendant or an entity controlled by a Defendant as part of the HCA LBO. Excluded from the HCA Class are the federal government; the Court and any members of the Court’s immediate family; Defendants, including their predecessors, successors, and affiliates, as well as their current and former directors, managers, partners, officers, and employees; and the directors and officers of HCA Inc. at the time of the LBO.

Plaintiffs are two public pension funds and two individual investors who held shares of

stock in public companies that were purchased by Defendants or their affiliates during LBOs for

these companies. See March 13 SJ Order at 1. Defendants – Bain, Blackstone, Carlyle,

Goldman, KKR, Silver Lake, and TPG – are in the private equity investment business. March 13

SJ Order at 2.

Plaintiffs bring two claims, pursuant to Section 1 of the Sherman Act, 15 U.S.C. §1, and

Section 4 of the Clayton Act, 15 U.S.C. §15, relating to these transactions and the

underpayments class members received from Defendants for their shares. First, in the

“Overarching Conspiracy Claim,” as narrowed at summary judgment, Plaintiffs allege

Defendants fixed the sale prices of eight target companies ‒ AMC, SunGard, Aramark, Kinder

Morgan, HCA, Freescale, Harrah’s, and TXU. See March 13 SJ Order at 2-3; July 16 SJ Order

at 1-2. These eight companies were sold through “proprietary” deals (as opposed to auctions),

meaning the target company announced a signed agreement with one consortium, and then the

target company had a period of time until formal closing to find a better offer. July 16 SJ Order

at 5 n.5. In the eight proprietary deals at issue, Defendants agreed not to make better offers, to

the detriment of the Proprietary Deal Class. Therefore, Plaintiffs seek monetary damages for

themselves and on behalf of the Proprietary Deal Class.


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Second, Detroit PFRS and Omaha PFRS bring a separate “HCA Claim” against

Blackstone, Carlyle, Goldman, and TPG (the “HCA Defendants”). The HCA Defendants agreed

not to compete for the Bain/KKR announced deal for HCA during the company’s 50 day go-

shop period. June 20 SJ Order at 1-2. As a result of these agreements, members of the HCA

Class were paid less for their HCA shares than they would have been paid absent Defendants’

unlawful collusion. Therefore, Detroit PFRS and Omaha PFRS seek monetary damages for

themselves and on behalf of the HCA Class.

This action ‒ like numerous other antitrust and securities class actions ‒ easily fulfills the

requirements for certification under Rule 23. The four elements of Rule 23(a) are satisfied

because: (1) the Proprietary Deal Class and HCA Class are very large (numerosity); (2) there are

a multitude of questions of law and fact common to the classes (commonality); (3) Named

Plaintiffs, like all members of the classes, were paid depressed prices for the shares they tendered

to Defendants in the LBOs (typicality); and (4) Named Plaintiffs and their counsel have shown

that they can and will vigorously pursue and protect the interests of the classes (adequacy).

The elements of Rule 23(b)(3) are satisfied because questions of law or fact common to

the classes “predominate over any questions affecting only individual members,” and class

treatment is “superior to other available methods for fairly and efficiently adjudicating the

controversy.” Fed. R. Civ. P. 23(b)(3). Having evaluated Defendants’ motions for summary

judgment over the past ten months, the Court can assess the predominance requirement with a

complete factual record and a more comprehensive understanding of the issues than is ordinarily

available at the class certification stage. As the Court’s summary judgment rulings demonstrate,

liability will be determined solely on the basis of Defendants’ conduct. Defendants cannot

reasonably argue that their conduct applies differently to different class members. Because all


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the shareholders in each target company were paid a depressed price per share, the predominance

of common issues on antitrust impact and damages is straightforward. The accompanying expert

report of Drs. Simon Wilkie and Michael Williams shows that evidence common to the classes is

available to establish the class-wide impact of the conspiracies and that a formula consistent with

applicable economic principles can be applied to calculate the damages. W/W Class Rep., ¶38.

If Plaintiffs prove their claims, each shareholder of the eight target companies will receive

exactly the same increase in price per share.

With few outlier exceptions, price-fixing and other antitrust actions are well-suited for

class treatment. Brown v. Pro Football, Inc., 146 F.R.D. 1, 4 (D.D.C. 1992) (“[T]he framers of

Rule 23 seemed to target cases such as this [antitrust action] as appropriate for class

determination.”). Far from being an outlier exception, this case, where Defendants’ conduct

caused every shareholder of each target company to receive an unlawfully depressed price per

share, is perfectly suited for class action treatment. The Court should grant this motion and

certify both the Proprietary Deal Class and the HCA Class.

II. BACKGROUND

The parties have thoroughly briefed merits issues relating to Plaintiffs’ claims on

numerous motions to dismiss, motions for discovery, motions for summary judgment, and

motions for reconsideration. The Court has received thousands of pages of briefing, with

exhibits, setting forth detailed factual information about the conspiracies alleged. Plaintiffs

summarize here the procedural history and facts that are pertinent to class certification.


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A. Procedural History

Plaintiffs filed the first complaint in this consolidated action in December 2007.1

Complaint, ECF No. 1. Defendants filed motions to dismiss on August 27, 2008. See ECF Nos.

125-34. While the Court granted certain individual motions, it denied Defendants’ joint motion

to dismiss all of Plaintiffs’ claims on December 15, 2008. See Memoranda and Orders, ECF

Nos. 153, 156-57.

Discovery proceeded in three phases. See Memorandum and Order, ECF No. 486 at 1-2.

The first phase of discovery was directed at nine deals: PanAmSat, AMC, SunGard, Neiman

Marcus, Michaels Stores, HCA, Aramark, Kinder Morgan, and Freescale. See id. at 1;

Memorandum and Order, ECF No. 157 at 11. In a second phase, the Court allowed “discovery

on additional transactions for which the first phase had rendered specific evidence of collusion,”

namely: Cablecom, Nalco, Warner Music, Lowes, Susquehanna, NXP (Philips), Vivendi, and

Community Health Systems (CHS). ECF No. 486 at 1; Memorandum and Order, ECF No. 352

at 2. Finally, the Court granted Plaintiffs’ motion to proceed to a third phase of discovery

covering ten additional LBOs: Texas Genco, Toys R Us, Education Management, Univision,

Harrah’s, Clear Channel, Sabre, Biomet, TXU, and Alltel. ECF No. 486 at 4-5.

At the close of discovery, Plaintiffs moved for leave to file the Fifth Amended

Complaint, wherein they brought two claims. First, Plaintiffs brought the Overarching

Conspiracy Claim against all Defendants, alleging an agreement to restrain competition in the 27

deals that were the subject of the three phases of discovery. Fifth Amended Complaint, ECF No.

588 (filed under seal) at ¶¶586-92. Second, Plaintiffs brought the HCA Claim, alleging an

1 An identical action, Case No. 08-10254 (D. Mass.), was filed on February 14, 2008, and was consolidated with this low-numbered action pursuant to Fed. R. Civ. P. 42(a). Electronic Order Granting Motion to Consolidate, entered April 28, 2008.


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unlawful agreement among the HCA Defendants to restrain competition in the HCA deal. Id. at

¶¶593-99. The Court upheld the Fifth Amended Complaint over Defendants’ Rule 12(b)(6) and

12(f) motions and entered a scheduling order for briefing summary judgment. ECF Nos. 573,

577, 616, 617.

Defendants filed 13 motions for summary judgment, including omnibus motions as to

both claims, and 11 individual motions by each Defendant. March 13 SJ Order at 1. The Court

granted in part and denied in part these motions. Id. at 32. The Court narrowed the 27-deal

Overarching Conspiracy Claim to an eight-deal “overarching agreement between the Defendants

to refrain from ‘jumping’ each other’s announced proprietary deals,” and dismissed JPMorgan

from the case. Id. at 29.

The Court allowed the remaining Defendants to file renewed individual motions for

summary judgment on the Overarching Conspiracy Claim, as narrowed. Id. at 30. The

remaining Defendants filed renewed motions, which were denied as to seven Defendants: Bain,

Blackstone, Carlyle, Goldman, KKR, Silver Lake,2 and TPG. July 16 SJ Order at 4.3 The Court

denied entirely Defendants’ motions for summary judgment on the HCA Claim, as well as

motions for reconsideration. March 13 SJ Order at 32; June 20 SJ Order at 13.

B. Factual Background

1. Plaintiffs’ Trial Evidence Is Common to the Classes

Plaintiffs’ trial evidence establishing liability will primarily include Defendants’ own

emails and statements; Defendants’ valuations, models, and other documents regarding the deals

2 Silver Lake recently filed a motion for reconsideration, which Plaintiffs will oppose on November 1, 2013. 3 The Court initially denied THL’s motion, but then granted its motion for reconsideration and dismissed it from the case. Aug. 29 SJ Order.


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at issue; and the testimony of key employees of Defendants. As shown by the Court’s orders on

summary judgment, this evidence is common to the classes.

As to Plaintiffs’ first claim, Defendants agreed not to compete with one another in a

“continuous agreement across the proprietary deals.” July 16 SJ Order at 7. The evidence of this

agreement was Defendants’ own statements and conduct, including:

“The fact that no Defendant ever ‘jumped’ an announced proprietary deal.”

Defendants’ mutual stand downs on HCA and Freescale: (1) Goldman, Carlyle, TPG, and Blackstone’s “stand down” to KKR and Bain on HCA, and (2) KKR, Bain, and Silver Lake’s “stand down” to Blackstone, Carlyle, and TPG on Freescale.

A TPG executive’s statement regarding the Freescale transaction that “KKR has agreed

not to jump our deal since no one in private equity ever jumps an announced deal.”

A Goldman executive’s observation that “club etiquette prevail[ed],” when KKR, Bain, and Silver Lake stood down on the Freescale transaction.

March 13 SJ Order at 29; July 16 SJ Order at 7-9. These statements and conduct, the Court held,

“indicated a uniformity of conduct within the industry to refrain from ‘jumping’ each other’s

announced proprietary deals” and “denote[d] an accepted code of conduct between the

Defendants.” July 16 SJ Order at 8. And further, the evidence connected Goldman, Carlyle,

TPG, Blackstone, KKR, Bain, and Silver Lake to a single, overarching conspiracy to refrain

from competing on announced proprietary deals. Id. at 8-9.

As to the HCA Claim, Blackstone, Carlyle, Goldman, and TPG agreed to refrain from

competing with KKR and Bain on the HCA transaction after the deal was announced. See

June 20 SJ Order at 2. The evidence of this agreement again comes from Defendants’ own

statements and conduct: “[t]he evidence establishe[d] that each Remaining HCA Defendant

[Blackstone, Carlyle, Goldman, and TPG] showed interest in the HCA transaction, but promptly

‘stepped down’ from making a topping bid within 48 hours of the commencement of the fifty-


8

day ‘go-shop’ period,” and communicated the same to KKR or Bain within 96 hours, despite

their acknowledged interest in the lucrative deal. March 13 SJ Order at 31.

In contesting liability, Defendants have never suggested that their conduct manifests itself

differently for different class members. In opposing Defendants’ motions for summary judgment

on the Overarching Conspiracy Claim, Plaintiffs submitted a Statement of Facts that was 215

pages long, included 752 paragraphs, and had 1,580 citations in footnotes. See Statement of

Facts, ECF. No. 690 (filed under seal).4 The Named Plaintiffs were identified on pages one and

two of that document and were never mentioned again in 213 pages, thereby demonstrating that

their claims rely on common facts from Defendants’ own documents.

Plaintiffs’ experts have opined, and will testify at trial, that the actions of Defendants

caused injury-in-fact and damaged both classes.5 W/W Class Rep., ¶38. For each deal, they

examined Defendants’ (and other interested parties’) equity valuations of the target company ‒

evidence common to the classes ‒ and sorted them from highest to lowest. W/W Class Rep.,

¶¶14, 17, 28-29. Well-accepted economic theory predicts that in a competitive situation, the

winning bidder will bid just slightly above the second highest bidder’s valuation; however, if

there is collusion, the price will not be bid up competitively but, rather, will only rise to the

seller’s lowest acceptable bid. W/W Class Rep., ¶¶15-16, Appendix III. This is an economic

concept regularly employed, for example, by the Federal Communications Commission in 4 Plaintiffs incorporate by reference their oppositions to Defendants’ motions for summary judgment and their statement of facts supporting their oppositions. 5 Drs. Wilkie and Williams previously found, in their reports submitted in support of Plaintiffs’ oppositions to Defendants’ summary judgment motions, that Defendants’ conduct in the eight deals “consisted with coordinated behavior but inconsistent with competition.” W/W SJ Rep. II, ¶32; W/W SJ Rep. III, ¶13. They concluded, “[T]he actions taken by Defendants in the transactions at issue are more likely than not the result of an agreement not to compete. That is, we conclude that the economic evidence tends to exclude the possibility that Defendants acted independently.” Id.


9

evaluating the competitiveness of bidding for radio spectrum. W/W Class Rep., ¶16. Here, Drs.

Wilkie and Williams find Defendants’ conduct has a class-wide impact on the Proprietary Deal

Class and the HCA Class. W/W Class Rep., ¶¶31, 36. In each of the eight proprietary deals, the

winning bid, representing the actual price paid for the target company, was lower than one would

expect in the absence of a conspiracy, i.e., the second highest equity valuation. W/W Class Rep.,

¶¶31, 36. Drs. Wilkie and Williams then measure damages to the classes by calculating the

difference between the second highest valuation (the “but-for price”) and the actual price paid,

multiplied by the transaction-specific shares of common stock. W/W Class Rep., ¶¶29-32, 35-

37.

2. Defendants’ Trial Evidence Is Common to the Classes

Defendants’ evidence at trial will also focus primarily on the Defendants’ actions. In

moving for summary judgment, the focus of the defense was on Defendants’ conduct, not on the

conduct of Plaintiffs. Defendants were not claiming the evidence was exculpatory as to some

class members, but not others. Defendants argued that the anticompetitive acts Plaintiffs

complained of were actually indicative of competitive behavior. The Court addressed this

evidence in its summary judgment orders, noting, for example, Defendants’ argument that break-

up fees could provide an economic reason not to jump a deal. March 13 SJ Order at 12.

Ultimately, the Court concluded Defendants’ competing explanations did not warrant summary

judgment but, rather, the case must be submitted to a jury. July 16 SJ Order at 17. Defendants’

conduct, whether exculpatory or inculpatory, was directed at the classes as whole, not at

individual class members.


10

III. ARGUMENT

A. Legal Standards for Rule 23(b)(3) Class Certification

“To obtain class certification, the plaintiff must establish the four elements of Rule 23(a)

and one of several elements of Rule 23(b).” Smilow v. Southwestern Bell Mobile Sys., Inc., 323

F.3d 32, 38 (1st Cir. 2003). Rule 23(a) of the Federal Rules of Civil Procedure requires

Plaintiffs to show (1) the class is so numerous that joinder of all members is impracticable

(numerosity); (2) there are questions of law or fact common to the class (commonality); (3) the

claims or defenses of the representative parties are typical of the class (typicality); and (4) the

representative parties will fairly and adequately protect the interests of the class (adequacy).

Fed. R. Civ. P. 23(a)(1)-(4). To certify a class under Rule 23(b)(3), the Court must find “that the

questions of law or fact common to class members predominate over any questions affecting

only individual members” (predominance) and “that a class action is superior to other available

methods for fairly and efficiently adjudicating the controversy” (superiority). Fed. R. Civ. P.

23(b)(3). See also In re New Motor Vehicles Canadian Export Antitrust Litig., 522 F.3d 6, 18

(1st Cir. 2008).

A court must conduct a rigorous analysis of the Rule 23 criteria before certifying a class.

Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, 133 S. Ct. 1184, 1994 (2013);

Smilow, 323 F.3d at 38. The court is “entitled to look beyond the pleadings in its evaluation” of

class certification. In re PolyMedica Corp. Sec. Litig., 432 F.3d 1, 6 (1st Cir. 2005). “[S]ome

inquiry into the merits at the class certification stage is not only permissible but appropriate to

the extent that the merits overlap the Rule 23 criteria.” New Motor Vehicles, 522 F.3d at 24.

Nevertheless, as the United States Supreme Court recently instructed, “Rule 23 grants courts no

license to engage in free-ranging merits inquiries at the certification stage. Merits questions may

be considered to the extent ‒ but only to the extent ‒ that they are relevant to determining


11

whether the Rule 23 prerequisites for class certification are satisfied.” Amgen, 133 S. Ct. at

1194-95.

B. The Classes Satisfy Rule 23(a) Requirements

Both the Proprietary Deal Class and the HCA Class easily satisfy each of Rule 23(a)’s

requirements.

1. The Many Thousands of Class Members Make Joinder Impracticable

The proposed classes are so “numerous that joinder of all members is impracticable.”

Fed. R. Civ. P. 23(a)(1). No minimum number of class members is required to maintain a class

action, but courts have generally found that classes with over 40 members satisfy numerosity.

See, e.g., Garcia–Rubiera v. Calderon, 570 F.3d 443, 460 (1st Cir. 2009); In re Relafen Antitrust

Litig., 218 F.R.D. 337, 342 (D. Mass. 2003). Exact figures are not required to satisfy the

numerosity requirement. In re Screws Antitrust Litig., 91 F.R.D. 52, 55 (D. Mass. 1981); Swack

v. Credit Suisse First Boston, 230 F.R.D. 250, 258 (D. Mass. 2005). Rather, when assessing the

size of a class, the court may “draw reasonable inferences from the facts presented to find the

requisite numerosity.” McCuin v. Secretary of Health and Human Services, 817 F.2d 161, 167

(1st Cir. 1987).

“[T]he sheer number of potential litigants in a class can be the only factor needed to

satisfy numerosity.” In re Hannaford Bros. Co. Customer Data Sec. Breach Litig., 2:08-MD-

1954-DBH, 2013 WL 1182733, at *2 (D. Me. Mar. 20, 2013). “Indeed, joinder is especially

impracticable where the class is made up of shareholders.” In re Sonus Networks, Inc. Sec.

Litig., 247 F.R.D. 244, 248 (D. Mass. 2007). In such actions, courts have routinely “assumed

[numerosity was met] where the number of shares traded is so great that common sense dictates


12

the class is very large.” Grace v. Perception Tech. Corp., 128 F.R.D. 165, 167 (D. Mass. 1989).6

In addition, where, as here, the members of the classes are “dispersed throughout the country,”

the “difficulty that the size of the potential class poses for joinder” also supports class

certification. Swack, 230 F.R.D. at 259.

Here, based on the number of outstanding shares and shareholders of record at or about

the time the deals were signed, announced, and closed, the Court may reasonably infer that each

of the classes consists of many thousands of class members.

Outstanding Shares (all classes of publicly traded

stock)

Shareholders of Record (all classes of publicly traded

stock) AMC Entertainment Inc. Signed: 07/22/2004 Announced: 07/22/2004 Closed: 12/23/2004

34,019,497 (common stock) as of Oct. 20, 2004 PEX 2393, AMC Entertainment Inc., Schedule 13E3/A (Oct. 22, 2004) at 2

2,572 (common stock) as of May 7, 2004 PEX 2394, AMC Entertainment Inc., Form 10-K (June 23, 2004) at 16

ARAMARK Corp. Signed: 08/08/2006 Announced: 08/08/2006 Closed: 01/26/2007

124,363,519 (Class B) as of Nov. 3, 2006 PEX 2395, ARAMARK Corp., Form DEFM14A (Nov. 20, 2006) at 52

941 (Class B) as of Nov. 3, 2006 PEX 2396, ARAMARK Corp., Form 10-K (Nov. 22, 2006) at 24

Freescale Semiconductor, Inc. Signed: 09/15/2006 Announced: 09/15/2006 Closed: 12/01/2006

412,209,282 (Class A and Class B) as of Oct. 18, 2006 PEX 2397, Freescale Semiconductor, Inc., Form DEFM14A (Oct. 19, 2006) at 2

65,172 (Class A and Class B) as of Dec. 31, 2005 PEX 2398, Freescale Semiconductor, Inc., Form 10-K (Feb. 13, 2006) at 22

Harrah’s Entertainment Inc. Signed: 12/19/2006 Announced: 12/19/2006 Closed: 01/28/2008

187,110,174 (common stock) as of March 1, 2007 PEX 2399, Harrah’s Entertainment, Inc., Form DEFM14A (March 8, 2007) at 21

9,683 (common stock) as of Feb. 28, 2007 PEX 2400, Harrah’s Entertainment Inc., Form 10-K (March 1, 2007) at 18

6 See, e.g., In re Evergreen Ultra Short Opportunities Fund Sec. Litig., 275 F.R.D. 382, 388 (D. Mass. 2011) (inferring numerosity from outstanding shares and transactions); In re Eaton Vance Corp. Sec. Litig., 219 F.R.D. 38, 43 (D. Mass. 2005) (inferring numerosity from millions of shares outstanding).


13

Outstanding Shares (all classes of publicly traded

stock)

Shareholders of Record (all classes of publicly traded

stock) HCA Inc. Signed: 07/24/2006 Announced: 07/24/2006 Closed: 11/17/2006

388,698,072 (common stock) as of Oct. 6, 2006 PEX 2401, HCA Inc., Form DEFM14A, (Oct. 17, 2006) at 16

12,400 (common stock) as of Feb. 28, 2006 PEX 2402, HCA Inc., Form 10-K (March 14, 2006) at 33

Kinder Morgan Inc. Signed: 08/28/2006 Announced: 08/28/2006 Closed: 05/30/2007

134,074,173 (common stock) as of Nov. 8, 2006 PEX 2403, Kinder Morgan Inc., Form DEFM14A (Nov. 15, 2006) at 77

10,400 (common stock) as of Nov. 8, 2006 PEX 2403, Kinder Morgan Inc., Form DEFM14A (Nov. 15, 2006) at 77

SunGard Data Systems Inc. Signed: 03/27/2005 Announced: 03/28/2005 Closed: 08/11/2005

290,800,927 (common stock) as of June 17, 2005 PEX 2404, SunGard Data Systems Inc., Form DEF 14A (June 27, 2005) at 71

9,200 (common stock) as of March 3, 2005 PEX 2405, SunGard Data Systems Inc., Form 10-K (March 16, 2005) at 12 (number of shareholders listed as approximate)

TXU Corp. Signed: 02/25/2007 Announced: 02/26/2007 Closed: 10/10/2007

461,152,009 (common stock) as of July 19, 2007 PEX 2406, TXU Corp., DEFM14A (July 25, 2007) at 13

49,125 (common stock) as of Feb. 23, 2007 PEX 2407, TXU Corp, Form 10-K (March 2, 2007) at 44

Classes of this size make joinder of all members impracticable, if not impossible. See In re

Carbon Black Antitrust Litig., 03-10191, MDL No. 1543, 2005 WL 102966, at *10 (D. Mass.

Jan. 18, 2005).

2. Questions of Fact and Law Are Common to the Classes

Rule 23(a)(2) requires “questions of law or fact common to the class.” The commonality

requirement has been aptly characterized as a “low bar” given “‘permissive application.’” New

Motor Vehicles, 522 F.3d at 19.7 It does not “require that class members’ claims be identical.”

Payne v. Goodyear Tire & Rubber Co., 216 F.R.D. 21, 25 (D. Mass. 2003). Commonality may

be satisfied by the presence of only a single issue common to the class, Wal-Mart Stores, Inc. v.

Dukes, 131 S. Ct. 2541, 2556 (2011), and requires only a basic demonstration that there is a

7 Unless otherwise noted, all citations are omitted and emphasis is added.


14

common question of law or fact in the case. See Southern States Police Benev. Ass’n, Inc. v.

First Choice Armor & Equip., Inc., 241 F.R.D. 85, 87 (D. Mass. 2007). Commonality is met

when class members’ claims “depend upon a common contention . . . of such a nature that it is

capable of classwide resolution ‒ which means that determination of its truth or falsity will

resolve an issue that is central to the validity of each one of the claims in one stroke.” Dukes,

131 S. Ct. at 2551. This inquiry focuses on whether a class action will “generate common

answers apt to drive the resolution of the litigation.” Id. (emphasis in original).

The nature of antitrust conspiracy cases brought under Section 1 of the Sherman Act has

led courts to routinely, and almost uniformly, find that commonality exists. Richburg v.

Palisades Collection LLC, 247 F.R.D. 457, 462 (E.D. Pa. 2008) (‘“Antitrust, price-fixing

conspiracy cases, by their nature, deal with common legal and factual questions about the

existence, scope and effect of the alleged conspiracy.’”).8 This case is no different. Proof of the

overarching conspiracy and the HCA conspiracy will be the heart of this case at trial and is

crucial to the claims of all class members. Each member of the classes has a common interest in

proving the existence, scope, effectiveness, and impact of these conspiracies, as well as the

8 See also Carbon Black, 2005 WL 102966, at *11 (collecting antitrust cases satisfying commonality requirement based on the existence and scope of conspiracies); see, e.g., In re NASDAQ Market-Makers Antitrust Litig., 169 F.R.D. 493, 510 (S.D.N.Y. 1996) (commonality satisfied based on common questions as to the existence, scope, effectiveness, and impact of conspiracy and the appropriate injunctive and monetary relief); In re Vitamin C Antitrust Litig., 279 F.R.D. 90, 99 (E.D.N.Y. 2012) (commonality satisfied based on common question of whether defendants’ price-fixing agreement caused an artificial increase in the market price of vitamin C); In re Chocolate Confectionary Antitrust Litig., 289 F.R.D. 200, 216 (M.D. Pa. 2012) (commonality satisfied based on common question of whether defendants conspired to fix prices, identities of actors in conspiracy, duration of conspiracy, and concealment of conspiracy); In re Screws Antitrust Litig., 91 F.R.D. 52, 55-56 (D. Mass. 1981) (commonality satisfied based on common question of existence of conspiracy to fix prices).


15

appropriate monetary relief to remedy the injury caused by Defendants. Accordingly, Rule

23(a)(2) is satisfied here by abundant questions common to the classes, including:

(1) Liability questions under Section 1 of the Sherman Act: All factual and legal questions, including those previously resolved by the Court during summary judgment proceedings, to determine whether Defendants violated Section 1 of the Sherman Act, such as: (a) As to claim 1: Whether there existed an agreement among Defendants not

to jump one another’s announced proprietary deals?

(b) As to claim 1: Whether each Defendant entered into the agreement not to jump announced proprietary deals?

(c) As to claim 2: Whether there existed an agreement among Goldman, Carlyle, TPG, and Blackstone to stand down on the HCA transaction?

(d) As to claim 2: Whether Goldman, Carlyle, TPG, and Blackstone each entered into the agreement to stand down on the HCA transaction?

(e) As to both claims: Whether such agreements were per se violations of Section 1 of the Sherman Act?

(f) As to both claims: Whether the restraints affected interstate commerce?

(2) Antitrust injury questions under Section 4 of the Clayton Act: All factual and legal questions to determine whether the classes suffered an injury that entitles them to treble damages under Section 4 of the Clayton Act, such as: (a) As to both claims: Whether shareholders suffered injury-in-fact?

(b) As to both claims: Whether the injury is an antitrust injury, i.e., the type

of injury the antitrust laws were intended to prevent?

(3) Damages questions under Section 4 of the Clayton Act: As to both claims, the extent of injury, as reflected in the amount of damages suffered by the classes. 3. Plaintiffs’ Claims Are Typical

“The typicality requirement is fulfilled when the plaintiffs’ claims arise from the same

course of conduct and are based on the same legal theory as the class claims.” In re Evergreen

Ultra Short Opportunities Sec. Litig., 275 F.R.D. 382, 389 (D. Mass. 2011); accord In re Pharm.

Indus. Average Wholesale Price Litig., 277 F.R.D. 52, 58 (D. Mass. 2011); Natchitoches Parish


16

Hosp. v. Service Dist. Tyco Int’l, Ltd., 247 F.R.D. 253, 264 (D. Mass. 2008); Carbon Black, 2005

WL 102966, at *12.

Named Plaintiffs’ claims and the Proprietary Deal Class’ claims arise from the same

course of conduct: Defendants’ overarching conspiracy not to jump one another’s announced

proprietary deals. The claims of the proposed representatives of the HCA Class and the HCA

Class’ claims likewise arise from the same course of conduct: the HCA Defendants’ agreement

not to jump the HCA deal after KKR and Bain announced their acquisition of the company. As

to both classes, all members, including Named Plaintiffs, suffered the same injury – namely,

underpayment for the shares they tendered to Defendants. And, as to both classes, the extent of

the underpayment, or the damages, will be determined by the difference between the price paid

per share and the but-for price per share that would have been paid in a competitive market,

absent the violations of the antitrust laws. Consequently, Named Plaintiffs and members of the

classes will base their claims on the same course of conduct and common legal theories, such

that if one class member proves that Defendants’ anticompetitive acts caused depression of

premiums, such proof will likewise prove the case for every other class member. See Relafen,

218 F.R.D. at 342-43 (typicality met where ‘“claims arise from the same course of conduct that

gave rise to the claims of absent [class] members’”); Natchitoches Parish Hosp., 247 F.R.D. at

264-65 (typicality met where representative’s and class’ claims “all ‘arise out of a common

wrong: a core pattern of alleged anticompetitive conduct that would have similarly injured each

of them by artificially inflating the price of [defendant’s product]’”).

“Typicality, however, does not require that the situations of the named representatives

and the class members be identical.” NASDAQ, 169 F.R.D. at 511. “[C]lass representatives’

claims can be considered typical even where there is some factual variation among the claims


17

. . . .” Evergreen, 275 F.R.D. at 390. In the antitrust context, courts have long recognized that

classes can consist of members who have been harmed through different products affected by

one conspiracy.9 “The typicality requirement does not mandate that products purchased,

methods of purchase, or even damages of the named plaintiffs must be the same as those of the

absent class members.” In re Vitamins Antitrust Litig., 209 F.R.D. 251, 261 (D.D.C. 2002).

Accordingly, typicality does not require Named Plaintiffs to have tendered shares in all

eight deals included in the definition of the Proprietary Deal Class in order to represent that

class. Because the claims of each member of the Proprietary Deal Class arise from the same

overarching conspiracy, each has an incentive to demonstrate Defendants’ participation in that

conspiracy. Further, each will prove that the antitrust injury caused by the conspiracy affected

each of them by a common impact across all eight deals. Thus, Named Plaintiffs’ claims and the

classes’ claims are so “interrelated that the interests of the class members will be fairly and

adequately protected in their absence.” Dukes, 131 S. Ct. at 2541.

4. Plaintiffs Will Fairly and Adequately Protect the Interests of the Classes

The final requirement of Rule 23(a) is adequacy of representation, which has two

elements. First, the interests of the class representatives must not be antagonistic to those of the

class. Andrews v. Bechtel Power Corp., 780 F.2d 124, 130 (1st Cir. 1985). Second, Plaintiffs

9 See, e.g., NASDAQ, 169 F.R.D. at 511 (class representatives’ claims typical when class definition included holders of 1,659 different stocks and no named plaintiff held every single one or dealt with every single defendant); In re Static Random Access Memory (SRAM) Antitrust Litig., 264 F.R.D. 603, 609 (N.D. Cal. 2009) (“Plaintiffs’ claims are typical even though they may have used different purchasing procedures, purchased different quantities or a different mix of products, or received different prices than other class members.”); In re Urethane Antitrust Litig., 251 F.R.D. 629, 640-41 (D. Kan. 2008) (finding typicality in price-fixing claim despite differences among class members in types of products purchased).


18

must be represented by counsel who are “qualified, experienced and able to vigorously conduct

the proposed litigation.” Id.

a. Plaintiffs’ Unanimity of Interests with Class Members Make Them Adequate Class Representatives

With regard to the adequacy of the proposed class representatives, ‘“[o]nly conflicts that

are fundamental to the suit and that go to the heart of the litigation prevent a plaintiff from

meeting the Rule 23(a)(4) adequacy requirement.’” Matamoros v. Starbucks Corp., 699 F.3d

129, 138 (1st Cir. 2012).10 Here, there are no conflicts between Named Plaintiffs and other

members of the classes. Named Plaintiffs belong to the classes they seek to represent, and their

interests are fully aligned with the interests of their fellow class members. All were paid a

depressed per share price for the stock they sold to Defendants as a result of the same conspiracy.

Plaintiffs seek the same relief for themselves that they seek for all class members – namely,

damages for underpayment for their shares. See Carbon Black, 2005 WL 102966, at *14

(adequacy established when “named plaintiffs and their counsel have the same core objectives as

would absent class members”).

b. Plaintiffs Are Qualified to Represent the Classes

“[I]n the context of antitrust, a plaintiff is not required to understand complex economic

theories or to have an expert’s knowledge of the market.” Natchitoches Parish Hosp., 247

F.R.D. at 265. Rather, the named representative plaintiffs must possess a “general knowledge”

10 A court should disregard speculative conflicts that a defendant may suggest between class representatives and unnamed class members. “[T]o forestall class certification the intra-class conflict must be so substantial as to overbalance the common interests of the class members as a whole.” Matamoros, 699 F.3d at 138 (rejecting intra-class conflict suggested by defendants as hypothetical); see, e.g., Natchitoches Parish Hosp., 247 F.R.D. at 268 (rejecting intra-class conflict suggested by defendants in antitrust action as speculative and unsupported by the evidence).


19

of the case and have participated in discovery. Carbon Black, 2005 WL 102966, at *14; see also

In re Transkaryotic Therapies, Inc. Sec. Litig., No. 03-10165, 2005 WL 3178162, at *4 (D.

Mass. Nov. 28, 2005) (In complex cases, ‘“[a] great deal of reliance on the expertise of counsel

is to be expected.”’).

Named Plaintiffs have demonstrated their qualifications to represent the classes through

their vigorous prosecution of this action. Each understands the basis of the claims and has

shown a willingness to step forward, incur discovery burdens, and prosecute this case in the best

interests of the classes.

1) Dr. Dahl Is Qualified to Represent the Proprietary Deal Class

Dr. Kirk Dahl, a retired dentist and investor,11 tendered shares to Defendants in the

Freescale LBO,12 and seeks to represent the Proprietary Deal Class. Dr. Dahl has actively

participated in the litigation and has monitored developments in the case. He served six

responses to three sets of interrogatories, responded to three sets of requests for production of

documents, produced documents, and testified at a deposition.

At his deposition, Dr. Dahl demonstrated a command of the facts underlying the

complaint. For example, Dr. Dahl testified to his understanding of the overarching conspiracy as

an “old boy’s club” where the “big guys” rigged the market and harmed average investors like

him.13 He understood that the complaint alleged a conspiracy and that the rules of the conspiracy

11 PEX 2408 Dahl Dep. at 74:11-19. 12 PEX 2409 at DAHL 00062. Dr. Dahl also sold into the Univision LBO. PEX 2410 at DAHL 00023. 13 PEX 2408 Dahl Dep. at 13:2-13:14, 20:15-21:21, 110:8-21.


20

included “no topping bids.”14 Dr. Dahl has a thorough layman’s understanding of the LBO

process; for example, he described the business of a private equity firm, leveraged buyouts, and

proprietary versus auction deals.15 Dr. Dahl was aware of the procedural posture of the case and

identified the District of Massachusetts as the U.S. District Court where the case is pending and

Your Honor as the presiding judge.16

Dr. Dahl’s testimony demonstrates his understanding of the duties of a class

representative and his intent to continue to carry out these duties responsibly, including testifying

at trial if needed.17 Dr. Dahl is well-qualified to represent the Proprietary Deal Class.

2) Police and Fire Retirement System of the City of Detroit Is Qualified to Represent the Proprietary Deal Class and the HCA Class

Police and Fire Retirement System of the City of Detroit (“Detroit PFRS”) is a municipal

employee retirement system and pension plan and trust created by the City of Detroit’s Charter

to provide retirement, disability, and survivor benefits to eligible police and fire department

employees and their beneficiaries.18 Detroit PFRS is administered and managed by a Board of

Trustees, which is generally responsible for managing the assets of Detroit PFRS, selecting

applicable actuarial assumptions and methods for the Retirement System, and computing the

annual contribution of the City of Detroit.19

14 PEX 2408 Dahl Dep. at 20:15-18, 46:20-47:14. 15 PEX 2408 Dahl Dep. at 87:6-88:11 (private equity firm and leveraged buyouts), 47:19-48:5 (auction versus proprietary deals). 16 PEX 2408 Dahl Dep. at 171:5-21. 17 PEX 2408 Dahl Dep. at 174:2-9. 18 Thomas Decl., ¶2. 19 Thomas Decl., ¶2.


21

Detroit PFRS sold shares to Defendants in:20 SunGard, Freescale, HCA, Aramark,

Kinder Morgan, TXU, and Harrah’s.21 Detroit PFRS seeks to represent the Proprietary Deal

Class and the HCA Class.22

Detroit PFRS has actively participated in the litigation and has monitored developments

since it joined the case in the Third Amended Complaint on August 26, 2008.23 Detroit PFRS

served six responses to three sets of interrogatories, responded to three sets of requests for

production of documents, and produced 123,356 pages of documents.

Detroit PFRS understands the duties of a class representative and intends to continue to

carry out these duties responsibly, including testifying at trial if needed.24 Detroit PFRS is well-

qualified to represent the Proprietary Deal Class and the HCA Class.

3) City of Omaha Police and Fire Retirement System Is Qualified to Represent the Proprietary Deal Class and the HCA Class

The City of Omaha Police and Fire Retirement System (“Omaha PFRS”) is a municipal

employee retirement system and pension plan authorized by the Omaha Home Rule Charter and

20 Detroit PFRS also sold into the following LBOs: PanAmSat (PEX 2411 at DFP013332); Michaels Stores (PEX 2413 at DFP013889); Neiman Marcus (PEX 2414 at DFP058812); Alltel (PEX 2415 at DFP095322-23); Biomet (PEX 2416 at DFP095596); Toys R Us (PEX 2417 at DFP059312); Education Management (EDMC) (PEX 2418 at DFP058180); Univision (PEX 2419 at DFP078886-87); Clear Channel (PEX 2420 at DFP116699); Sabre (PEX 2421 at DFP078411-12); Texas Genco (PEX 2422 DFP043957). 21 PEX 2423 at DFP012290 (SunGard); PEX 2424 at DFP13494 (SunGard); PEX 2425 at DFP012921 (Freescale); PEX 2426 at DFP13650 (Freescale); PEX 2427 at DFP012508 (HCA); PEX 2428 at DFP014162 (Aramark); PEX 2429 at DFP013179 (Kinder Morgan); PEX 2412 at DFP013769 (Kinder Morgan); PEX 2430 at DFP014340 (Kinder Morgan); PEX 2431 at DFP098035-36 (TXU); PEX 2433 at DFP096537-40 (Harrah’s). 22 Thomas Decl., ¶5. 23 Thomas Decl., ¶¶6-7; Third Amended Complaint, ECF No. 123. 24 Thomas Decl., ¶¶6-7.


22

Chapter 22 of the Omaha Municipal Code to provide retirement, disability, and survivor benefits

to eligible uniformed personnel of the police and fire departments of the city and their

beneficiaries.25 Omaha PFRS is administered and managed by a board of seven trustees.26

Omaha PFRS sold shares into the HCA LBO27 and seeks to represent the Proprietary Deal Class

and the HCA Class.28

Omaha PFRS has actively participated in the litigation and has monitored its

developments since it joined the [Proposed] Fifth Amended Complaint filed on June 7, 2012.29

The Court allowed the filing of the Fifth Amended Complaint, which added Omaha PFRS as a

Plaintiff on June 14, 2012.30 Defendants did not serve any requests for production or

interrogatories on Omaha PFRS; however, Omaha PFRS produced 5,196 pages of documents

and will make a corporate designee available for deposition.31

Omaha PFRS understands the duties of a class representative and intends to continue to

carry out these duties responsibly, including testifying at trial if needed.32 Omaha PFRS is well-

qualified to represent the Proprietary Deal Class and the HCA Class.

25 Sklenar Decl., ¶2. 26 Sklenar Decl., ¶2. 27 PEX 2434 at OPF000810; PEX 2435 at OPF002003. 28 Sklenar Decl., ¶5. 29 Sklenar Decl., ¶¶6-7; [Proposed] Fifth Amended Complaint, ECF No. 581, at Exhibit A (filed under seal). 30 Fifth Amended Complaint, ECF No. 588 (filed under seal). 31 See Plaintiffs’ Memo ISO Motion for Leave to File a Fifth Amended Complaint, ECF No. 583 at 4. 32 Sklenar Decl., ¶¶6-7.


23

4) Michael Wojno, as Executor for the Estate of Robert Zimmerman, Is Qualified to Represent the Proprietary Deal Class

Michael Wojno is the nephew of Robert Zimmerman, a plaintiff in this action when it

was filed on December 28, 2007.33 Mr. Wojno, on behalf of the Zimmerman estate, seeks to

represent the Proprietary Deal Class. Mr. Wojno is a long-standing business owner. He obtained

a Business Degree in 1976 from the University of Akron, and since then he has managed several

companies. He owns a development company, which operates assisted living facilities.34

On August 23, 2010, Mr. Zimmerman, due to issues of age and infirmity, executed a

Durable Power of Attorney (“POA”) appointing Mr. Wojno to perform “any act in the

management, supervision, and care of my estate and affairs that I personally have authority to

perform” including the right to “commence, pursue, or oppose any action, suit, or legal

proceeding relating to any matter in which I am or may hereafter be interested; and compromise,

settle, or submit to judgment any such action or proceeding.”35 The POA also gave Mr. Wojno

the authority to manage and oversee Mr. Zimmerman’s business affairs, including his investment

portfolio.36 Since the execution of this POA, Mr. Wojno has fulfilled all of the responsibilities of

a class representative in this action, including actively communicating with counsel, monitoring

the litigation, and responding to discovery.37 Mr. Wojno was also named as the executor of Mr.

Zimmerman’s Last Will and Testament (the “Will”) dated August 23, 2010, and served as a

33 Complaint, ECF No. 1; Wojno Decl., ¶3. 34 PEX 2436 Wojno Dep. at 24:14-27:18; Wojno Decl., ¶2. 35 PEX 2436 Wojno Dep. at 10:1-25; Wojno Decl., Ex. 1 at ZIMMERMAN 00115-116. 36 Wojno Decl., ¶4; PEX 2436 Wojno Dep. at 9:22-25, 10:1-10, 11:10-13. 37 Wojno Decl., ¶6.


24

trustee of his trust.38 Mr. Zimmerman passed away on June 18, 2012, leaving Mr. Wojno as a

trustee of his trust and beneficiary of his estate.39 Following Mr. Zimmerman’s death in June

2012, Plaintiffs moved, and the Court granted the motion, to substitute Mr. Wojno, as executor

of Mr. Zimmerman’s estate, into the case as Plaintiff.40

It is well settled that executors such as Michael Wojno can be adequate class

representatives.41 See, e.g., Pharm. Indus. Average Wholesale Price Litig., 277 F.R.D. at 60–64

(D. Mass. 2011) (finding an executor to be an adequate class representative). Mr. Wojno has

actively participated in the litigation and stayed apprised of its progress by maintaining regular

contact with counsel, reviewing the pleadings and Court orders, and assisting counsel with

discovery.42 Mr. Wojno also sat for a deposition, during which he confirmed his understanding

of the allegations of the complaint and the purpose of the litigation. For instance, he testified

that “the private equity firms and their investment banks colluded to get together to rig bidding in

a manner that, when they were buying companies, that the prices would not be based on fair

market value.”43 Mr. Wojno also testified that Mr. Zimmerman had purchased and later tendered

shares in Kinder Morgan, one of the companies affected by the “collusion,” and, as result, the

38 Wojno Decl., ¶8 & Ex. 2 (Will at Fourth Section). 39 Wojno Decl., ¶9 & Exs. 2-3 (Will and August 23, 2010 Amendment to October 5, 2007 Trust). 40 Wojno Decl., ¶10; ECF No. 614, Motion to Substitute Party; Electronic Order Granting Motion for Substitution, entered July 23, 2012. 41 On July 16, 2013, the probate of Mr. Zimmerman’s estate was closed as all the assets had been distributed. Nonetheless, Mr. Wojno has been, and continues to fulfill his responsibilities as a representative plaintiff in this case. If there is a recovery in this action, or if the Court deems it appropriate at any time, Mr. Wojno will move to reopen the probate, a process which can be completed in a matter of days and at a cost of less than $500. Wojno Decl., ¶11. 42 Wojno Decl., ¶6; PEX 2436 Wojno Dep. at 62:9-19, 87:21-25, 88:1-19, 94:1-19, 95:5-96:5, 98:4-24, 100:3-19. 43 PEX 2436 Wojno Dep. at 59:19-25-60:10.


25

“share price was lower than it might have been if there was more fair market bidding by capable

firms.”44 Mr. Wojno confirmed that Mr. Zimmerman had purchased 150 shares of Kinder

Morgan at $24.14 per share on August 14, 1996.45 He also demonstrated his understanding of

the class action process.46 Mr. Wojno also assisted his counsel in responding to discovery and

producing documents.47

Mr. Wojno understands the duties of a class representative and intends to continue to

carry out these duties responsibly, including testifying at trial as needed.48 Mr. Wojno is well-

qualified to represent the Proprietary Deal Class.

c. Counsel Are Qualified to Represent the Classes and Should Be Appointed Class Counsel under Rule 23(g)

Rule 23(c)(1)(B) provides that “[a]n order that certifies a class action . . . must appoint

class counsel under Rule 23(g).49 Plaintiffs request the Court to appoint the following leadership

structure for class counsel:

44 Id. 45 Id. at 110:18-24; 113:15-25; see also PEX 2437 at ZIMMERMAN 00088. 46 PEX 2436 Wojno Dep. at 83:16-84:3. 47 Id. at 94:1-19, 95:5-96:5, 98:4-24, 100:3-19. 48 Wojno Decl., ¶13. 49 Prior to the 2003 amendments to Rule 23, the qualifications of class counsel to represent the class were evaluated under Rule 23(a)(4) along with the qualifications of the class representative. Subsection (g) now guides the Court in assessing the qualifications of counsel to represent a certified class. Advisory Comm. Note to Amended Rule 23(g), Fed. R. Civ. P. 23(g) (as amended 2003) (“Rule 23(a)(4) will continue to call for scrutiny of the proposed class representative, while this subdivision will guide the court in assessing proposed class counsel as part of the certification decisions.”).


26

Proposed Co-Lead Class Counsel

Christopher M. Burke

Scott+Scott, Attorneys at Law, LLP

K. Craig Wildfang

Robins, Kaplan, Miller & Ciresi L.L.P.

Patrick J. Coughlin

Robbins Geller Rudman & Dowd LLP

Proposed Executive Committee

Reinhardt Wendorf &

Blanchfield

Wagstaff &

Cartmell LLP

Branstetter, Stranch & Jennings,

PLLC

Lockridge

Grindal Nauen P.L.L.P.

Robbins Arroyo

LLP

Proposed Co-Lead Class Counsel and the Proposed Executive Committee are collectively

referred to herein as “Proposed Class Counsel.”

The proposed leadership structure mirrors the internal ordering that Plaintiffs’ counsel

have used to take the case from its inception through summary judgment, and now class

certification. The co-lead structure is consistent with the type of plaintiffs’ counsel structure

described in the MANUAL FOR COMPLEX LITIGATION (4th ed. 2004) at §§10.2, 21.27.

To decide whether class counsel will “fairly and adequately represent the interests of the

class,” as required by Rule 23(g), the Court is to consider “the work counsel has done in

identifying or investigating potential claims in the action, counsel’s experience . . . , counsel’s

knowledge of the applicable law, and the resources counsel will commit to representing the

class.” Fed. R. Civ. P. 23(g)(1)(B)-(C)(i). Additionally, the court “may consider any other

matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class.”

Fed. R. Civ. P. 23(g)(1)(C)(ii).

Proposed Class Counsel have expended millions of dollars in attorney time and out-of-

pocket costs to investigate the claims, develop the factual evidence and legal theories, engage

experts, and pursue the lawsuit vigorously on behalf of the classes. Proposed Class Counsel


27

have extensive experience in antitrust litigation in general and class actions in particular, and

have successfully prosecuted some of the largest class action cases in the nation.50 Proposed

Class Counsel have already put tremendous resources toward this case and are ready, willing,

and able to see it through trial. Proposed Class Counsel will fairly and adequately represent the

interests of the classes, are eminently qualified, and should be designated as class counsel under

Rule 23(g).51

C. The Classes Satisfy the Elements of Rule 23(b)(3)

The First Circuit has directed courts to consider the policy objectives behind Rule 23 in

evaluating subsection (b)(3)’s requirements that (1) common questions of law or fact

predominate over questions affecting only individual members and (2) a class action is the

superior method to adjudicate the claim. See Smilow, 323 F.3d at 41-42. “The core purpose of

Rule 23(b)(3) is to vindicate the claims of consumers and other groups of people whose

individual claims would be too small to warrant litigation.” Id. at 41. ‘“A significant benefit to

claimants who choose to litigate their individual claims in a class-action context is the prospect

of reducing their costs of litigation, particularly attorney’s fees, by allocating such costs among

all members of the class who benefit from any recovery.’” Id. at 42 (quoting Deposit Guar.

Nat’l Bank v. Roper, 445 U.S. 326, 338 n.9 (1980)). Therefore, the financial impracticability of

individual plaintiffs bringing separate claims, as is the case here, weighs in favor of class

certification under Rule 23(b)(3).

50 Résumés of each of the Proposed Co-Lead and Executive Committee Firms are attached to the Noss Decl. at Exhibits PEX 2438-PEX 2445. 51 The proposed duties and responsibilities of Proposed Co-Lead Class Counsel and the Proposed Executive Committee are set forth in the accompanying [Proposed] Order Certifying the Proprietary Deal Class and the HCA Class and Appointing Class Counsel.


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1. Common Questions of Law or Fact Predominate over Individual Questions

a. The Predominance Standard

As Rule 23(b)(3) states, common questions need only predominate; the existence of some

individualized questions does not defeat the predominance of common questions. Fed. R. Civ. P.

23(b)(3); Smilow, 323 F.3d at 39. The Court’s inquiry under the predominance standard is not

whether Plaintiffs’ case has merit but, rather, whether “the questions of law or fact common to

the class will ‘predominate over any questions affecting only individual members’ as the

litigation progresses.” Amgen, 133 S. Ct. at 1195 (emphasis in original). The predominance

inquiry is designed “to ensure that the action ‘will achieve economies of time, effort, and

expense, and promote . . . uniformity of decision as to persons similarly situated, without

sacrificing procedural fairness or bringing about other undesirable results.’” George v. Nat’l

Water Main Cleaning Co., 286 F.R.D. 168, 178 (D. Mass. 2012) (quoting Amchem Prods., Inc.

v. Windsor, 521 U.S. 591, 624-25 (1997)). “[P]redominance is met ‘when there exists

generalized evidence which proves or disproves an element on a simultaneous, class-wide basis,

since such proof obviates the need to examine each class members’ individual position.’”

Vitamins, 209 F.R.D. at 262 (quoting In re Potash Antitrust Litig., 159 F.R.D. 682, 693 (D.

Minn. 1995)).

The Supreme Court recognizes that predominance is “a test readily met in certain cases

alleging . . . violations of the antitrust laws.” Amchem, 521 U.S. at 625. Accord Smilow, 323

F.3d at 42 n.9 (quoting Amchem); Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 815

(7th Cir. 2012). In antitrust actions, plaintiffs must demonstrate that both the antitrust violation

and antitrust impact can be established using common proof. New Motor Vehicles, 522 F.3d at

20. Additionally, common issues will predominate where objective criteria can be used to


29

determine damages, thereby removing the necessity for an individual hearing as to each plaintiff.

Smilow, 323 F.3d at 40. “[A]t the class certification stage, Plaintiffs need only show . . . that

these elements are ‘capable of proof at trial through evidence that is common to the class rather

than individual to its members.’” In re Titanium Dioxide Antitrust Litig., 284 F.R.D. 328, 344

(D. Md. 2012) (quoting In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 311-12 (3d Cir.

2008)) (emphasis in original).

The predominance analysis, thus, tracks the claim’s elements. A review of the three

elements of Plaintiffs’ claims – (1) violation of Section 1 of the Sherman Act, (2) fact of injury,

and (3) damages – demonstrates that common issues will substantially predominate over

individual questions, if any.

b. Proof of the Existence of the Agreement, and Its Terms and Participants, Will Involve Common Evidence

A violation of Section 1 of the Sherman Act requires proof of ‘“(1) the existence of a

contract, combination or conspiracy; (2) that the agreement unreasonably restrained trade . . . and

(3) that the restraint affected interstate commerce.’” March 13 SJ Order at 22 (quoting Lee v.

Life Ins. Co. of N. Am., 829 F. Supp. 529, 535 (D.R.I. 1993), aff’d, 23 F.3d 14 (1st Cir. 1994)).

As is typical in antitrust cases, the liability evidence will focus on Defendants’ conduct, and,

thus, proof of Defendants’ liability “will not vary among class members.” NASDAQ, 169 F.R.D.

at 518.

As demonstrated during summary judgment proceedings, Plaintiffs will use common

evidence to prove the central liability question – whether Defendants entered into an unlawful

agreement – and to prove its terms and participants. Defendants did not enter into different

agreements affecting different members of the classes. For example, Plaintiffs will prove a

single overarching conspiracy pursuant to which Defendants refrained from jumping announced


30

proprietary deals. See July 16 SJ Order at 7 (Defendants’ agreement not to jump announced

deals was a “continuous agreement across the proprietary deals.”). The Court’s summary

judgment orders amply demonstrate that common evidence will be used to determine

Defendants’ violation of Section 1 of the Sherman Act.

Predominance on the violation is further demonstrated by examining how any individual

class member would prove his case. Were this case pursued individually, to prevail on the

claims, each class member would have to prove the exact same conduct, and would do so using

the same documents and witnesses.

Because the antitrust violation will be proven at trial with evidence common to the

classes, predominance is satisfied as to the violation of Section 1 of the Sherman Act. See

Titanium Dioxide, 284 F.R.D. at 344 (finding to proof of antitrust conspiracy will focus on

defendants’ action and not vary among individual class members); Vitamins, 209 F.R.D. at 264

(“The alleged violations of a price fixing conspiracy and market allocation will focus on the

actions of the defendants, and, as such, proof for these issues will not vary among class

members.”).

c. Proof that Defendants’ Agreement Caused Antitrust Injury Will Involve Common Evidence

In addition to a violation of the Sherman Act, under Section 4 of the Clayton Act,

Plaintiffs must prove injury – that is, “an injury they suffered as a result of the violation.” New

Motor Vehicles., 522 F.3d at 19 n.18. Proof of injury (or impact) does not require proving the

amount of the injury; it only requires proving that class members suffered some injury from the

conspiracy. In re Linerboard Antitrust Litig., 305 F.3d 145, 151 (3d Cir. 2002) (‘“[T]he burden

of proving the fact of damage under § 4 of the Clayton Act is satisfied by . . . proof of some

damage flowing from the unlawful conspiracy’”). “[In]quiry beyond this minimum point goes


31

only to the amount and not the fact of damage.” Zenith Radio Corp. v. Hazeltine Research, Inc.,

395 U.S. 100, 114 n.9 (1969). Predominance of common issues of fact and law as to injury is so

readily established in antitrust cases that “[m]any courts have recognized a presumption of class-

wide antitrust impact.” SRAM Antitrust Litig., 264 F.R.D. at 612.52

Plaintiffs need not rest on presumptions here. Plaintiffs will show that premiums paid to

the classes would have been higher absent Defendants’ agreements not to compete. Class

members suffered antitrust injury in the form of underpayment for the shares they tendered to

Defendants. See, e.g., Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 489

(1968) (“when a buyer shows that the price paid by him for materials purchased for use in his

business is illegally high and also shows the amount of the overcharge, he has made out a prima

facie case of injury and damage within the meaning of § 4”); Pa. Dental Ass’n v. Med. Serv.

Ass’n of Pa., 815 F.2d 270, 276 (3d Cir. 1987) (“the payment of overcharges . . . is

unquestionably an antitrust injury”).53

52 See, e.g., In re Ready-Mixed Concrete Antitrust Litig., 261 F.R.D. 154, 170 (S.D. Ind. 2009) (stating “general rule” that ‘“an illegal price-fixing scheme presumptively impacts upon all purchasers of a price-fixed product in a conspiratorially affected market’”); In re Foundry Resins Antitrust Litig., 242 F.R.D. 393, 409 (S.D. Ohio 2007) (stating that when plaintiffs allege “conspiracy to fix-prices and allocate markets, courts have presumed class-wide impact”); In re Catfish Antitrust Litig., 826 F. Supp. 1019, 1041 (N.D. Miss. 1993) (stating that in price-fixing cases, “there is a presumption that all purchasers will be impacted/injured by having to pay the higher price”); Potash, 159 F.R.D. at 695 (stating that “because the gravamen of a price-fixing claim is that the price in a given market is artificially high, there is a presumption that an illegal price-fixing scheme impacts upon all purchasers of a price-fixed product in a conspiratorially affected market”). 53 While cases more frequently address claims by overcharged buyers, the victimized seller who is underpaid as a result of a buyer’s cartel also suffers an antitrust injury. Knevelbaard Dairies v. Kraft Foods, Inc., 232 F.3d 979, 988 (9th Cir. 2000) (“‘When buyers agree illegally to pay suppliers less than the prices that would otherwise prevail, suppliers are obviously injured in fact. The suppliers’ loss also constitutes antitrust injury, for it reflects the rationale for condemning buying cartels ‒ namely, suppression of competition among buyers, reduced upstream and downstream output, and distortion of prices.’”) (quoting 2 Phillip E. Areeda &


32

The expert report of Drs. Wilkie and Williams demonstrates that the impact of

Defendants’ conduct can be shown using reliable data and methodologies that are common to the

classes. Dr. Wilkie is the former Chairman of, and a professor in, the Department of Economics

at the University of Southern California. Dr. Wilkie previously served as Chief Economist at the

Federal Communications Commission and holds M.A. and Ph.D. degrees in economics. He has

focused his academic research over the past 25 years on auction theory, mechanism design,

regulation, and game theory. W/W Class Rep., ¶¶1-4. Dr. Williams holds M.A. and Ph.D.

degrees in economics from the University of Chicago and previously served as an economist

with the U.S. Department of Justice, Antitrust Division. Dr. Williams specializes in the areas of

antitrust, industrial organization, and regulation. W/W Class Rep., ¶¶7-8.

Drs. Wilkie and Williams employ a benchmark methodology, a widely accepted and

reliable methodology for examining impact and damages in antitrust cases.54 Under their

methodology, Drs. Wilkie and Williams find the difference between the prices actually paid and

the “but-for” prices that Defendants would have paid in the absence of the conspiracy. W/W

Class Rep., ¶14.

To calculate but-for prices, Drs. Wilkie and Williams examined valuation models for

each of the eight deals to determine the price per share at which Defendants, and other interested

bidders, valued the eight LBOs in question. W/W Class Rep., ¶¶14, 17, 28-29. Each valuation

model in the record contains numerous inputs used by the private equity firms, such as debt

structure, dividend schedule, exit multiple, interest rate, management options, required cash, and

the internal rate of return (“IRR”) the firm thought was achievable on the deal. W/W Class Rep., Herbert Hovenkamp, ANTITRUST LAW, ¶375b at 297 (rev. ed. 1995)). 54 See, e.g., Linerboard, 305 F.3d at 153-55; McDonough v. Toys R Us, Inc., 638 F. Supp. 2d 461, 490 & n.19 (E.D. Penn. 2009).


33

¶17. Because Defendants’ conspiracy decreased the prices they paid for target companies, the

expected IRRs in Defendants’ models are artificially high. W/W Class Rep., ¶17. In order to

arrive at unaffected but-for prices that Defendants would have utilized in the absence of the

conspiracy, Drs. Wilkie and Williams adjusted the IRRs assumed in the valuation models using

the Capital Asset Pricing Model (“CAPM”), the most widely used model for pricing assets.

W/W Class Rep., ¶¶18-20. CAPM prices assets by relating the expected return of an asset to the

market rate of return, the risk free rate of return, and the asset’s risk. W/W Class Rep., ¶20.

Given that private equity firms must earn returns over those predicted by CAPM prices,

Drs. Wilkie and Williams’ model takes into account an excess return, which they calculate using

the circumstances surrounding the Freescale deal, which shined a light on the workings of the

conspiracy. W/W Class Rep., ¶¶21-24, 26. Drs. Wilkie and Williams calculate the excess return

using Freescale for two reasons. First, Freescale is one example in the record of cheating on the

conspiracy by KKR, Silver Lake, and Bain, whose indication of interest at $40-$42 challenging

the Blackstone-led consortium’s proprietary deal at $38, directly reveals the highest bid in that

deal: $41 per share (the midpoint of the indication of interest). W/W Class Rep., ¶¶22-24.

Therefore, it is unnecessary to infer a competitive price using auction theory. W/W Class Rep.,

¶¶22, 24. Second, of the eight proprietary deals, Freescale also has the highest “beta,” which is a

measure of the riskiness of the returns of a company relative to returns on the S&P 500 index.

W/W Class Rep., ¶22. Thus, using Freescale to calculate excess returns for Drs. Wilkie and

Williams’ model yields a reliable yet conservative measure. W/W Class Rep., ¶24.


34

The valuations, as adjusted by the IRR outputs of the CAPM, represent the valuations

Defendants would have arrived at but for the conspiracy.55 W/W Class Rep., ¶13. Drs. Wilkie

and Williams then chose the second highest valuation as the price at which the sale should have

been made because, as a matter of well-understood economic theory, the party with the highest

valuation, absent collusion, will have to outbid the party with the second highest valuation by

paying slightly more than that second highest valuation.56 W/W Class Rep., ¶¶14-16. This

theory has been the subject of numerous economic papers and is well accepted. See W/W Class

Rep., ¶16, Appendix III. In fact, the Federal Communications Commission uses this method to

study the sales of radio spectrum. W/W Class Rep., ¶16. When the second highest valuation is

compared to the actual prices paid, Drs. Wilkie and Williams find that the actual prices paid were

always below the predicted but-for price and, therefore, the conspiracy impacted shareholders in

each of the eight proprietary deals. W/W Class Rep., ¶¶29-31.

55 Drs. Wilkie and Williams also present an alternative method for determining but-for IRRs and damages using the 27-year average IRR earned by private equity buyout funds, as published by Ewens, et al. in a leading, peer-reviewed finance journal. W/W Class Rep., ¶¶18, 27 (citing Ewens, et al., The Price of Diversifiable Risk in Venture Capital and Private Equity, 26 REV. FINANC. STUD. 1853-89 (2013)). To the Ewens average IRR (13.24%), they add the cost of fees and carried interest typically charged to limited partner investors to arrive at the gross but-for IRR of 16.55%. W/W. Class Rep., ¶27. Although used as a cross-check on the CAPM methodology, this alternative analysis is a separate, reliable approach that could stand on its own as a full study of impact and damages. W/W Class Rep., ¶19. Under this alternative approach, Drs. Wilkie and Williams also find class-wide impact and damages. W/W Class Rep., ¶¶35-37, Tables 10-18. 56 For Freescale, Drs. Wilkie and Williams find the competitive price using the direct evidence available in the record – the KKR/Silver Lake/Bain indication of interest at a midpoint of $41 per share. W/W Class Rep., ¶23. The alternate auction-based approach of selecting the second-highest valuation yields the same competitive price of $41 per share. W/W Class Rep., ¶24 n.17. Thus, both approaches result in the same damage to Freescale shareholders – i.e., $1 per share. W/W Class Rep., ¶24 n.17.


35

d. Damages Are Measureable on a Class-Wide Basis

At the class certification stage, Plaintiffs’ burden with respect to proving antitrust

damages is to show “that the damages resulting from that [alleged antitrust injury [are]

measurable ‘on a class-wide basis’ through use of a ‘common methodology.’” Comcast Corp. v.

Behrend, 133 S. Ct. 1426, 1430 (2013). “Calculations need not be exact . . . but at the class-

certification stage (as at trial), any model supporting a ‘plaintiff’s damages case must be

consistent with its liability case.’” Id. at 1433. Plaintiffs’ only theory of liability in this case is

that Defendants’ agreement not to compete with one other for announced proprietary deals

resulted in an underpayment to all class members for their shares. Plaintiffs’ “model purporting

to serve as evidence of damages in this class action . . . measure[s] only those damages

attributable to that theory.” Id.

As seen at §III.B.1.c., supra (common impact), Drs. Wilkie and Williams use

Defendants’ own valuations and documents, adjusted by the but-for IRRs they calculate, to

arrive at unaffected valuations by the bidders in each of the eight deals. Drs. Wilkie and

Williams then, consistent with economic theory, select the second highest of those individual

valuations and use that valuation as the price that should have paid for each target company but

for the conspiracy.57 A comparison of that conspiracy-free price and the actual, conspiracy-

affected price shows that all class members were impacted by the antitrust injury caused by

Defendants. W/W Class Rep., ¶31.

It is then a simple matter to calculate damages. Drs. Wilkie and Williams multiply the

number of shares by the difference between what shareholders should have received (the but-for

57 As discussed in note 56, supra, Drs. Wilkie and Williams do not need to estimate the Freescale competitive price in this fashion because direct evidence provides the answer.


36

price) minus what they actually received (the closing price). W/W Class Rep., ¶30, Tables 1-8.

This methodology captures as damage only the difference between the non-conspiratorial price

and the actual price paid under the conspiracy. The total damage to the Proprietary Deal Class

for all eight deals is approximately $11.97 billion; the total damage to the HCA Class is

approximately $3.74 billion.58 W/W Class Rep., ¶32, Tables 5, 9.

e. The Releases Do Not Prevent Plaintiffs from Using Common Evidence to Prove the Elements of Their Claims

Plaintiffs anticipate Defendants will argue that the releases obtained in prior shareholder

litigation settlements preclude Plaintiffs from using evidence common to the classes to prove

their claims.59 The Court already rejected this reasoning at summary judgment (July 16 SJ Order

at 16-17) and should reject it again.

Defendants argued at summary judgment that evidence of conduct by so-called

“released” Defendants from “released” deals should be excluded. The Court did not exclude any

evidence pursuant to releases. Indeed, the Court has never prohibited Plaintiffs from using

evidence produced by any released Defendant in any released deal to prove their claims. Each of

the Court’s orders pertaining to releases has held that while certain Defendants are released from

contributing damages as to the transactions specified in those orders, the conspiracy evidence,

58 These damage figures are under the CAPM estimate of but-for IRRs. Under the alternative measure based on the Ewens’ 27-year average IRR (see note 55, supra), the total damage to the Proprietary Deal Class for all eight deals is approximately $9.06 billion, and the total damage to the HCA Class is approximately $2.69 billion. W/W Class Rep., ¶37, Tables 14, 18. 59 Plaintiffs expect Defendants to argue, for example, that members of the Proprietary Deal Class who were TXU shareholders cannot use evidence pertaining to the conduct of Goldman, KKR, and TPG in TXU to prove the overarching conspiracy as to each of them, while class members who were not TXU shareholders could use the entire body of TXU evidence without restriction.


37

itself, is not released. Accordingly, all the evidence is available to all class members to prove

their claims.

1) The Court Considered All the Evidence at Summary Judgment

At summary judgment, the Court rejected Defendants’ arguments that the releases bar use

of evidence of released Defendants’ conduct in released deals to prove the overarching

conspiracy. As the Court explained in addressing the effect of the releases at summary

judgment: “The overarching conspiracy claim . . . does not arise out of any specific transaction

but was an agreement across all eight announced proprietary transactions.” July 16 SJ Order at

16. Accordingly, the releases given by shareholders in the prior settlements do not “bind another

group of shareholders for damages sustained pursuant to the overarching conspiracy.” Id.

The Court further determined that “each Defendant’s connection to the overarching

conspiracy is not based on conduct related to the transaction for which they have been released.”

Id. at 16. However, the Court later addressed the question of whether such evidence could be

used to prove the overarching conspiracy in THL’s motion for reconsideration of the Court’s

July 16, 2013 summary judgment order. In the July 16 SJ Order, the Court relied on evidence

pertaining to THL’s conduct in Harrah’s to connect THL to the overarching conspiracy but “did

not reach the issue of whether evidence relating to the Aramark transaction, another transaction

in which THL was involved, was also sufficient.” Aug. 29 SJ Order at 3. In opposing

reconsideration, Plaintiffs asserted THL’s conduct in Aramark tended to exclude the possibility

of independent action. Pltfs. Opp. to THL Mot., ECF No. 901 (filed under seal) at 7. THL

countered on reply that such evidence could not be considered by the Court because THL was a

released party in Aramark. THL Reply, ECF No. 908 (filed under seal) at 5. But the Court

considered the Aramark evidence pertaining to THL (and found it was not sufficient to meet the


38

Matsushita standard). Aug. 29 SJ Order at 4-5. The Court did not exclude the evidence on

release grounds.

2) The Court Did Not Bar the Use of Evidence Pertaining to Conduct by Released Defendants

This Court has entered three Orders in this action concerning the effect of releases from

claims involving AMC, Aramark, Freescale, HCA, Kinder Morgan, Harrah’s, and TXU. The

first of these Orders, dated November 19, 2008, specified Defendants were released from claims

in the AMC, Aramark, Freescale, and HCA transactions.60 ECF No. 153. The Court expressly

stated that “[n]otwithstanding these releases, these four (4) transactions remain at issue in this

case as evidence of the overarching conspiracy.” Id. at 2. Similarly, the Court’s March 1, 2011

Order released specified Defendants in the Kinder Morgan transaction61 but did not restrict the

use of evidence related to this transaction. ECF No. 437. The third order, dated July 18, 2012,

and pertaining to Harrah’s and TXU, released specified Defendants62 and stated:

“[n]otwithstanding these releases, these . . . transactions remain at issue in this case as evidence

of the overarching conspiracy as they relate to the non-released Defendants.” ECF No. 616 at 2.

The first and second Orders expressly preserve Plaintiffs’ ability to use evidence from

AMC, Aramark, Freescale, HCA, and Kinder Morgan to prove the overarching conspiracy

60 The released Defendants with respect to the AMC transaction are Apollo, JPMorgan, and Goldman. The released Defendants with respect to the Aramark transaction are JPMorgan, THL, and Goldman. The released Defendants with respect to the Freescale transaction are Blackstone, Carlyle, TPG, Goldman, and JPMorgan. The released Defendants with respect to the HCA transaction are Bain, KKR, and JPMorgan. ECF No. 153 at 1-2. 61 The released Defendants with respect to the Kinder Morgan transaction are Goldman, Carlyle, and Blackstone. ECF No. 437 at 1. 62 The released Defendants with respect to the Harrah’s transaction are Apollo, Blackstone, Goldman, JPMorgan, and TPG. The released Defendants with respect to the TXU transaction are Goldman, JPMorgan, KKR, and TPG. ECF No. 616 at 2.


39

without any restriction. The third Order simply stated that Harrah’s and TXU evidence can be

used against non-released Defendants; it does not prohibit the use of such evidence against

released parties. If such a different result were intended for the Harrah’s and TXU transactions,

the Court would have stated so. Moreover, Defendants never moved for clarification or

reconsideration of this Order.

Not only was Defendants’ interpretation at summary judgment inconsistent with the first

two Orders in the effect of the releases on this litigation, it would violate due process and state

contract law.63 It is also inconsistent with the principles of evidence. In the analogous context of

the statute of limitations, the cases are uniform that the fact that a person cannot face liability for

a time-barred transaction does not impact the admissibility of evidentiary acts that are outside the

limitations period. U.S. v. Baker, 10 F.3d 1374, 1410 (9th Cir. 1993), overruled on other

grounds by U.S. v. Nordby, 225 F.3d 1053 (9th Cir. 2000) (statute of limitations is a procedural

rule, not an evidentiary rule). See also Dovberg v. Dow Chem. Co., 195 F. Supp. 337, 343 (E.D.

Pa. 1961) (all activity occurring before the limitations period “may be introduced as evidence of

the existing conspiracy, but may not be the basis of a cause of action upon which plaintiffs may

recover”); Johnson v. J. H. Yost Lumber Co., 117 F.2d 53, 60 (8th Cir. 1941) (“The mere fact

that some of the proffered evidence extended beyond the applicable statute of limitations is no

reason for rejecting it, if otherwise it is pertinent to the issue of conspiracy.”); General

Physiotherapy, Inc. v. Sybaritic, Inc., No. 4:03-cv-01058, 2006 WL 6867777, at *3 (E.D. Mo.

June 14, 2006) (finding that party could “introduce relevant evidence regarding conduct which

predates the settlement agreement and which supports their claims” where probative value of

63 See July 16 SJ Order at 16 (citing Metropolitan Property and Cas. Ins. Co. v. Shan Trac, Inc., 324 F.3d 20, 25 (1st Cir. 2003) and E.E.O.C. v. Waffle House, Inc., 534 U.S. 279, 294 (2002)).


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evidence released in settlement agreement was found to outweigh unfair prejudice and confusion

of the issues).

3) The Releases Will Have a Common Impact on Class Members

The fact of the releases present common issues, as they are enforceable, or not, in exactly

the same way to each class member. Further, the Court’s Orders concerning the releases will

have a common and easily accounted for impact on the classes. The Court’s Orders simply

provide a guide as to which Defendants will be responsible for paying damages relating to each

deal. Where a Defendant has a release for a particular deal, that Defendant will not be

responsible for funding the damages attributable to that deal. Thus, the Court’s Orders have

common impact on the classes. The releases affect each class member in the same fashion.

2. Class Treatment Is Superior to Any Alternative Method of Adjudication

If common issues predominate over individual issues, then a class action will generally

be a superior method for adjudicating the claims of the class members. See Amchem, 521 U.S. at

615 (stating that both the predominance and superiority requirements were designed to identify

cases “in which a class action would achieve economies of time, effort, and expense, and

promote . . . uniformity of decision as to persons similarly situated, without sacrificing

procedural fairness or bringing about other undesirable results”). Rule 23(b)(3) identifies factors

for the Court to consider in determining whether a class action is superior to other available

methods of adjudication. All factors support certification here.

First, all actions involving this controversy have been consolidated before this Court. See

Fed. R. Civ. P. 23(b)(3)(C). Two actions were filed in this District in 2007 (Case No. 07-12388)

and 2008 (Case No. 08-10254). The Court granted a motion to consolidate these actions

pursuant to Rule 42(a) of the Federal Rules of Civil Procedure. Electronic Order Granting


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Motion to Consolidate, entered April 28, 2008. This consolidated action is the only active

litigation regarding agreements among Defendants not to compete on one another’s announced

proprietary deals, including the HCA transaction. See Fed. R. Civ. P. 23(b)(3)(B).

As demonstrated by the lack of other actions regarding this controversy, class members

have no interest in prosecuting separate actions because it would not be practical to bring a non-

class action challenging these antitrust violations. Fed. R. Civ. P. 23(b)(3)(A); see Gintis v.

Bouchard Transp. Co., Inc., 596 F.3d 64, 67-68 (1st Cir. 2010) (damages of $12,000 to $39,000

per class member raises “a real question whether the putative class members could sensibly

litigate on their own”); Yokoyama v. Midland Nat’l Life Ins. Co., 594 F.3d 1087, 1094 (9th Cir.

2010) (damages of $10,000 to $15,000 per class member too small to justify individual lawsuits).

The individual damages here will be far lower for most class members. No plaintiff would

pursue an individual case against well-funded adversaries such as Defendants, the largest and

most financially successful private equity firms operating in the United States. No lawyer would

take such an individual case on a contingency. This litigation requires a multi-million dollar

commitment of lawyer time, along with very considerable outlays for experts, court reporters,

travel, data and document review, among other tasks. The realistic alternative to class

certification is rarely a large number of individual suits; rather, the realistic alternative is usually

“zero individual suits” due to litigation costs. In re Whirlpool Corp. Front-Loading Washer

Prods. Liab. Litig., 722 F.3d 838, 861 (6th Cir. 2013) (quoting Carnegie v. Household Int’l, Inc.,

376 F.3d 656, 661 (7th Cir. 2004)). As the only available means of recourse, a class action is

superior. See In re Boston Scientific Corp. Sec. Litig., 604 F. Supp. 2d 275, 288 (D. Mass. 2009)

(class action superior because without certification individual investors who did not have the


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resources to pursue claims on their own would have been left with no vindication for potentially

valid claims).

Both the Proprietary Deal Class and the HCA Class are sufficiently defined and pose no

challenge to manageability or ascertainability. See Fed. R. Civ. P. 23(b)(3)(D). Both classes are

described in a clear and precise manner, so that class members may be readily identified, based

on objective criteria, and without any need for individualized fact finding. In re Lupron Mktg.

and Sales Practices Litig., 228 F.R.D. 75, 93 (D. Mass. 2005) (‘“The proposed class must be

precisely defined and its members must be ascertainable through the application of ‘stable and

objective factors’ so that a court can decide, among other things, who will receive notice, who

will share in any recovery, and who will be bound by the judgment.’”). The classes are narrowly

defined to include only those persons who sold the common stock of the target companies

directly to a Defendant, as part of each company’s LBO. The names and addresses of individual

class members may be readily ascertained from records reflecting their stock trades in the target

companies.64 These shareholder records are generally held by transfer agents of the company, or

representatives acting on the shareholder’s behalf (such as banks, brokers, and financial

custodians), and may be accessed by class action administrators with experience in securities and

antitrust cases, like this one.65 Accordingly, both classes are well-defined and will allow for the

ready identification of class members and their subsequent notice.

64 See Crudo Decl., ¶6. 65 Crudo Decl., ¶¶6-8.


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IV. CONCLUSION

For the foregoing reasons, the Court should grant this motion and enter the accompanying

[Proposed] Order Certifying the Proprietary Deal Class and the HCA Class and Appointing Class

Counsel.

Dated: October 21, 2013 Respectfully submitted,

SCOTT+SCOTT, ATTORNEYS AT LAW, LLP

/s/ Christopher M. Burke CHRISTOPHER M. BURKE (admitted pro hac vice)WALTER W. NOSS (admitted pro hac vice) KRISTEN M. ANDERSON (admitted pro hac vice)707 Broadway, Suite 1000 San Diego, CA 92101 Telephone: 619/233-4565

SCOTT+SCOTT, ATTORNEYS AT LAW, LLP DAVID R. SCOTT (admitted pro hac vice) 156 South Main Street P.O. Box 192 Colchester, CT 06415 Telephone: 860/537-5537

ROBINS, KAPLAN, MILLER & CIRESI L.L.P. K. CRAIG WILDFANG (admitted pro hac vice) THOMAS J. UNDLIN (admitted pro hac vice) STACEY P. SLAUGHTER (admitted pro hac vice) 2800 LaSalle Plaza 800 LaSalle Avenue South Minneapolis, MN 55402-2015 Telephone: 612/349-8500

ROBINS, KAPLAN, MILLER & CIRESI L.L.P. LISA A. FURNALD (BBO #631059) 800 Boylston Street, 25th Floor Boston, MA 02199 Telephone: 617/267-2300


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ROBBINS GELLER RUDMAN & DOWD LLP PATRICK J. COUGHLIN (Of Counsel) RANDI D. BANDMAN (admitted pro hac vice) SUSAN G. TAYLOR (admitted pro hac vice) DAVID W. MITCHELL (admitted pro hac vice) PHONG L. TRAN (admitted pro hac vice) 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: 619/231-1058

LANDSKRONER • GRIECO • MADDEN, LLC JACK LANDSKRONER (admitted pro hac vice) PAUL GRIECO (admitted pro hac vice) 1360 West 9th Street, Suite 200 Cleveland, OH 44113 Telephone: 216/522-9000

ROBBINS ARROYO LLP BRIAN J. ROBBINS (admitted pro hac vice) GEORGE AGUILAR (admitted pro hac vice) 600 B Street, Suite 1900 San Diego, CA 92101 Telephone: 619/525-3990

LOCKRIDGE GRINDAL NAUEN P.L.L.P. RICHARD A. LOCKRIDGE (admitted pro hac vice)CHARLES N. NAUEN (admitted pro hac vice) KAREN HANSON RIEBEL (admitted pro hac vice)100 Washington Avenue South, Suite 2200 Minneapolis, MN 55401-2159 Telephone: 612/339-6900

HULETT HARPER STEWART, LLP DENNIS STEWART (Of Counsel) 525 B Street, Suite 760 San Diego, CA 92101 Telephone: 619/338-1133

BRANSTETTER, STRANCH & JENNINGS, PLLCJ. GERARD STRANCH IV (admitted pro hac vice)227 Second Avenue, North – 4th Floor Nashville, TN 37201-1631 Telephone: 615/254-8801


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GLANCY BINKOW & GOLDBERG LLP BRIAN P. MURRAY (Of Counsel) 122 East 42nd Street, Suite 2920 New York, NY 10168 Telephone: (212) 884-0988

REINHARDT WENDORF & BLANCHFIELD MARK REINHARDT (admitted pro hac vice) 2201 Atlantic Avenue Sullivan’s Island, SC 29482 Telephone: 651/287-2100

REINHARDT WENDORF & BLANCHFIELD ROBERTA A. YARD (admitted pro hac vice) E-1250 First National Bank Building 332 Minnesota Street St. Paul, MN 55101 Telephone: 651/287-2100

FARUQI & FARUQI, LLP NADEEM FARUQI (Of Counsel) 369 Lexington Avenue, 10th Floor New York, NY 10017-6531 Telephone: 212/983-9330

POMERANTZ GROSSMAN HUFFORD DAHLSTROM AND GROSS, LLP JAYNE A. GOLDSTEIN (admitted pro hac vice) 1792 Bell Tower Lane, Suite 203 Weston, FL 33326 Telephone: (954) 315-3454

WAGSTAFF & CARTMELL LLP TYLER W. HUDSON (admitted pro hac vice) 4740 Grand Avenue, Suite 300 Kansas City, MO 64112 Telephone: 816/701-1177

Attorneys for Plaintiffs


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CERTIFICATE OF SERVICE

I hereby certify that on October 21, 2013, I caused the foregoing to be electronically filed

with the Clerk of the Court using the CM/ECF system which will send notification of such filing

to the email addresses denoted on the Electronic Mail Notice List, and I hereby certify that I

caused the foregoing document or paper to be mailed via the United States Postal Service to the

non-CM/ECF participants indicated on the Manual Notice List.

I certify under penalty of perjury under the laws of the United States of America that the

foregoing is true and correct. Executed on October 21, 2013. /s/ Christopher M. Burke CHRISTOPHER M. BURKE SCOTT+SCOTT, ATTORNEYS AT LAW, LLP 707 Broadway, Suite 1000 San Diego, CA 92101 Telephone: 619-233-4565 Fax: 619-233-0508 E-mail: [email protected]


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