ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS TO DISMISS
(ECF Nos. 997, 999, 1248)
Hon. Janis L. Sammartino, United States District Judge.
Presently before the Court are three motions to dismiss. First, Defendants Lion Capital LLP, Big Catch Cayman LP, and Lion Capital (Americas), Inc. (the "Lion Defendants," "Lion Entities," or "Defendants") filed a Motion to Dismiss the Cherokee Nation's Complaint, (ECF No. 997). Plaintiff the Cherokee Nation's filed an Opposition to, ("Nation Opp'n," ECF No. 1233), the Motion.
Second, the Lion Defendants filed a Motion to Dismiss the Bashas' Plaintiffs'
Third, the Lion Defendants filed a Motion to Dismiss, ("Four Track MTD," ECF No. 1248), the operative complaints
The Court heard oral argument for all three motions on July 30, 2018. Having considered the parties arguments, the evidence, and the law, the Court rules as follows.
The case concerns an alleged conspiracy to fix the prices of packaged seafood throughout the United States. Plaintiffs Bashas' Inc., Marc Glassman, Inc., and 99 Cents Only Stores LLC are businesses that have purchased packaged seafood from the three largest domestic producers of packaged seafood products. ("Bashas Compl.," No. 17-CV-2487, ECF No. 1, ¶¶ 16-18.)
This particular aspect of the MDL deals with three Defendants, who are specially appearing: Lion Capital LLP, Lion Capital (Americas), Inc., and Big Catch Cayman LP. Defendant Lion Capital LLP ("Lion Capital") is a British private equity firm organized under the laws of the United Kingdom ("U.K."). (Bashas Compl.
Defendant Lion Capital (Americas), Inc. ("Lion Americas") is a Delaware corporation with its principal place of business in Santa Monica, California. (MTD 11.) Lion Americas moved its office from New York to Santa Monica in October 2012. Lion Americas provides investment advice regarding investments in North America to Lion Capital, which Lion Capital considers on behalf of the investment funds that it manages. (Id.)
Defendant Big Catch Cayman LP ("Big Catch") is a holding company organized under the laws of the Cayman Islands and has no offices or employees. (Bashas Compl. ¶ 272; MTD 11.) Big Catch's only assets are its interest in Bumble Bee Holdco SCA, a subsidiary and owner of Bumble Bee's equity, and its interest in an unrelated technology company. (MTD 11.) Plaintiffs allege that Lion Capital owns a majority share of Big Catch. (Bashas Compl. ¶ 272.)
I. Pre-Purchase Activities and Lion's Purchase of Bumble Bee
The Bashas Plaintiffs allege that Lion Capital purchased Bumble Bee in December 2010 from a private equity firm. Centre Partners Management LLC, for $980 million. (Id. ¶ 270.) Plaintiffs further allege on information and belief that Lion Capital had access to Bumble Bee's financial and other records in the course of due diligence that it conducted for the acquisition. This, along with access to Bumble Bee senior executives, allegedly caused Lion Capital to learn of the ongoing conspiracy.
II. Post-Purchase Activities by Lion Entities
Plaintiffs claim that after purchasing Bumble Bee, Lion Capital team members became "intimately familiar with Bumble Bee's business" and demonstrated that knowledge by regularly reporting facts concerning Bumble Bee to investors as part of periodic portfolio reviews. (Id. ¶ 280.) And, according to Plaintiffs, Lion Capital's acquisition of Bumble Bee, while Bumble Bee was earning "supra-competitive profits," positioned Lion to realize an increase in Bumble Bee's market value and eventual sale price. (Id. ¶ 279.)
In addition to receiving information, Plaintiffs allege Lion Capital took an active role in the ongoing conspiracy after [Redacted] (Id. ¶¶ 283-84.) Lindberg also met with Thai Union's chief executive in January 2011, where Plaintiffs allege "they discussed the conspiracy." (Id. ¶ 284.) In the months following Lion's purchase of Bumble Bee and Lindberg's meetings, defendants Chicken of the Sea, Bumble Bee, and Del Monte/StarKist agreed to increase their prices in May 2011. (Id. ¶ 285.) By the fall 2011, Chicken of the Sea, Bumble Bee, and StarKist increased their efforts to police each other's promotional pricing. (Id.) Lion allegedly took an active role in enforcement as evidenced by Lindberg deciding to meet again with senior at Dongwon. (Id. ¶ 286.) [Redacted]. (Id.)
Plaintiffs allege that Bumble Bee continued to keep the Lion entities informed of anticompetitive behavior; for example, [Redacted]. (Id. ¶ 287.) However, [Redacted]. (Id.) Plaintiffs allege that [Redacted]. (Id. ¶ 287 n.10.) [Redacted]. (Id.) Bumble Bee increased its prices on January 17, 2018. [Redacted]. (Id. ¶ 288.)
[Redacted]. (Id.) [Redacted]. (Id.) On February 3, 2012, Lindberg sent an email response to an executive at Thai Union, who had asked Lindberg if he had suggestions how they could "[Redacted]. (Id. ¶ 289.) Lindberg's email stated: [Redacted]." (Id.)
On [Redacted] as well as an agreement between the defendants not to label their packaged tuna as "FAD-free."
(Id. (emphasis omitted).) [Redacted]. (Id. ¶ 294.) In addition to Mr. Lindberg's meetings and communications, [Redacted]. (Id. ¶ 296.)
In December 2014, Lion was able to report Bumble Bee's earnings (i.e., its earnings before interest, taxes, depreciation, and amortization or "EBITDA") were a "record-breaking $150 Million," based on revenue of $1 billion. (Id. ¶ 297.) Plaintiffs allege the "record-breaking" financial performance was due to the ongoing conspiracy. (Id.) On or about December 18, 2014, Thai Union announced that it intended to acquire Bumble Bee. (Id. ¶ 84.) [Redacted]. (Id. ¶ 279.) As part of the acquisition process, Thai Union and Bumble Bee submitted their proposal to the Department of Justice ("DOJ"). The merger review apparently led to a criminal investigation.
III. Department of Justice Investigation
Since at least 2015, various defendants have been under criminal investigation for antitrust violations as evidenced by Thai Union Group's confirmation it received a subpoena and was fully cooperating with a DOJ investigation. (Nation FAC ¶ 214.) On July 23, 2015, Bumble Bee publicly acknowledged receipt of a grand jury subpoena. (Id. ¶ 217.) On December 3, 2015, Thai Union Group announced it was terminating its acquisition of Bumble Bee. (Id. ¶ 84.) And, the DOJ issued a press release stating:
On December 7, 2016, the DOJ filed a criminal information against Scott Cameron, Bumble Bee Senior Vice President, who pled guilty on January 25, 2017. (Id. ¶ 221.) On December 21, 2016, the DOJ filed a criminal information against Ken Worsham, also a Bumble Bee Senior Vice President, who pled guilty on March 15, 2017. (Id. ¶ 222.) The plea agreements for these two defendants, as well as a third executive at StarKist, stated that they participated in a conspiracy within the packaged seafood industry to fix, raise and maintain the price of package seafood in the United States. (Id. ¶ 224.)
On May 8, 2017, DOJ filed criminal information against Bumble Bee and the entity pled guilty to its role in a conspiracy to fix the price of packaged seafood products in the United States on August 2, 2017. (Id. ¶¶ 227-28.) Bumble Bee agreed to pay a criminal fine of $25 million, but that amount will increase to a maximum fine of $81.5 million payable by Big Catch, in the event of a sale of Bumble Bee, subject to certain terms and conditions that are sealed in the criminal case. (Id. ¶ 228.) Most recently, Bumble Bee CEO Chris Lischewski was indicted on May 16, 2018.
I. Rule 12(b)(2)
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(2) challenges the Court's personal jurisdiction over a party. The plaintiff bears the burden of establishing that jurisdiction is proper. Boschetto v. Hansing, 539 F.3d 1011, 1015 (9th Cir. 2008) (citing Sher v. Johnson, 911 F.2d 1357, 1361 (9th Cir. 1990)). The Court may decide the motion without an evidentiary hearing, and thus "the plaintiff need only make a prima facie showing of the jurisdictional facts." Id. (quoting Caruth v. Int'l Psychoanalytical Ass'n, 59 F.3d 126, 127-28 (9th Cir. 1995)). A plaintiff makes a prima facie showing by producing admissible evidence, which, if believed, would be sufficient to establish the existence of personal jurisdiction. Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir. 1995). "Uncontroverted allegations in the plaintiff's complaint must be taken as true," Boschetto, 539 F.3d at 1015, and "[c]onflicts between the parties over statements contained in affidavits must be resolved in the plaintiff's favor," id. (quoting Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004)); see Am. Tel. & Tel. Co. v. Compagnie Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir. 1996).
A court's power to exercise jurisdiction over a party is limited by both statutory and constitutional considerations. First, a long-arm statute must confer jurisdiction over a defendant. Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1154-55 (9th Cir. 2006) (citing Fireman's Fund Ins. Co. v. Nat'l Bank of Coops., 103 F.3d 888, 893 (9th Cir. 1996)). There is no general federal long-arm statute, S.E.C. v. Ross, 504 F.3d 1130, 1138 (9th Cir. 2007), so a federal district court applies either the law of the state in which it sits, Fed. R. Civ. P. 4(k)(1)(A), or looks to specific federal statutes to supply the requisite service of process, Fed. R. Civ. P. 4(k)(1)(C), (k)(2); Ross, 504 F.3d at 1138. In an antitrust action, section 12 of the Clayton Act is the requisite federal long-arm statute and provides:
15 U.S.C. § 22; see also KM Enters., Inc. v. Global Traffic Techs., Inc., 725 F.3d 718, 724 (7th Cir. 2013) ("[Section 12's] first clause sets venue anywhere the corporation is an `inhabitant', is `found,' or `transacts
Second, the Fourteenth Amendment's Due Process clause limits the personal jurisdiction of state courts. Bristol-Myers Squibb Co. v. Superior Court of Cal., S.F. Cnty., ___ U.S. ___, 137 S.Ct. 1773, 1779, 198 L.Ed.2d 395 (2017) (citations omitted). "For a court to exercise personal jurisdiction over a non-resident defendant, that defendant must have at least `minimum contacts' with the relevant forum such that the exercise of jurisdiction `does not offend traditional notions of fair play and substantial justice.'" Schwarzenegger, 374 F.3d at 801 (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 S.Ct. 95 (1945) (internal quotation marks omitted)).
"In a statute providing for nationwide service of process, the inquiry to determine `minimum contacts' is thus "whether the defendant has acted within any district of the United States or sufficiently caused foreseeable consequences in this country."" Action Embroidery, 368 F.3d at 1180 (quoting Sec. Investor Prot. Corp. v. Vigman, 764 F.2d 1309, 1316 (9th Cir. 1985)). Under the minimum contacts test, jurisdiction can be either "general" or "specific." Doe v. Unocal Corp., 248 F.3d 915, 923 (9th Cir. 2001) (per curiam), abrogated on other grounds by Daimler AG v. Bauman, 571 U.S. 117, 134 S.Ct. 746, 187 L.Ed.2d 624 (2014). If a defendant has sufficient minimum contacts for the court to exercise personal jurisdiction over him, the exercise of such jurisdiction must also be reasonable. Asahi Metal Indus. Co. v. Super. Ct. of Cal., Solano Cnty., 480 U.S. 102, 113, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987).
II. Rule 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the defense that the complaint "fail[s] to state a claim upon which relief can be granted," generally referred to as a motion to dismiss. The Court evaluates whether a complaint states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil Procedure 8(a), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Although Rule 8 "does not require `detailed factual allegations,'... it [does] demand more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). In other words, "a plaintiff's obligation to provide the `grounds' of his `entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). A complaint will not suffice "if it tenders `naked assertion[s]' devoid of `further factual enhancement.'" Iqbal, 556 U.S. at 677, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 557, 127 S.Ct. 1955).
Where a complaint does not survive 12(b)(6) analysis, the Court will grant leave to amend unless it determines that no modified contention "consistent with the challenged pleading ... [will] cure the deficiency." DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)).
I. General Jurisdiction
General personal jurisdiction allows a plaintiff to hale a nonresident defendant into the forum state's court "to answer for any of its activities anywhere in the world." Martinez v. Aero Caribbean, 764 F.3d 1062, 1070 (9th Cir. 2014) (quoting Schwarzenegger, 374 F.3d at 801), cert. denied, ___ U.S. ___, 135 S.Ct. 2310, 191 L.Ed.2d 978 (2015). A court has general personal jurisdiction over a foreign corporation to hear any and all claims against the foreign corporation when its affiliations with a State are "so `continuous and systematic' as to render [it] essentially at home in the forum State." Daimler, 571 U.S. at 127, 134 S.Ct. 746 (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011); and citing Helicopteros Nacionales de Colom., S.A. v. Hall, 466 U.S. 408, 414 n.9, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)). To be essentially at home in the forum state, a foreign corporation must be comparable to a domestic enterprise in that state. See id.
A corporation will primarily be "at home" for the purposes of general jurisdiction in two paradigmatic forums: its place of incorporation and its principal place of business. Id. at 137, 134 S.Ct. 746 (citing Goodyear, 564 U.S. at 924, 131 S.Ct. 2846). General jurisdiction is not limited to these two forums, but will only be available elsewhere in the "exceptional case" where its affiliations with a forum are "so substantial and of such nature as to render the corporation at home." Id. at 138 n.19, 134 S.Ct. 746; see also Martinez, 764 F.3d at 1070. Those affiliations or contacts must be "constant and pervasive." Daimler, 571 U.S. at 122, 134 S.Ct. 746. To determine whether an exceptional case exists that justifies general jurisdiction, the Court must conduct "an appraisal of a corporation's activities in their entirety, nationwide, and worldwide." Id. at 139 n.20, 134 S.Ct. 746. "A corporation that operates in
A. Whether the Court Has General Jurisdiction over Lion Capital and Big Catch
1. Defendants' Arguments
Defendants argue that there is no general jurisdiction over Lion Capital and Big Catch. (MTD 18.) Specifically, they contend Lion Capital is organized under the laws of the U.K. and has its principal place of business in the U.K. (Id. (citing Brown Decl. ¶ 3-4; 10-11, 15).) Big Catch is organized under the laws of the Cayman Islands and has no employees or offices in the United States. (Id. (citing Brown Decl. ¶ 18).) Defendants acknowledge that Big Catch has a New York mailing address but cite an unpublished district court opinion for the proposition that a mailing address is insufficient to establish a principal place of business. (Id. (citing In re Hydroxycut Mktg. & Sales Practices Litig., No. 09 MD 2087-BTM (AJB), 2010 WL 2998855, at *3 (S.D. Cal. July 29, 2010); and Brown Decl. ¶ 21).)
2. Plaintiffs' Arguments
Plaintiff the Cherokee Nation contends that Lion Capital and Big Catch are subject to the Court's general jurisdiction.
The DPP Plaintiffs also argue general jurisdiction is appropriate. They contend that the vast majority of Lion Capital's business focuses on the United States. (DPP Opp'n 24.) For example, Lion Capital previously testified in another lawsuit that two-thirds of its capital comes from U.S. investors and many of the companies owned by Lion Capital's funds are U.S. companies. (See id. (citing Lion Capital LLP v. Stone Lion Capital Partners L.P., No. 91191681, 2013 WL 2329834, at *4 (T.T.A.B. Jan. 18, 2013)).) The DPP Plaintiffs also point out that Lion Capital advertises a "hands on" approach with respect to its portfolio companies, including Bumble Bee; thus, Defendants are involved in U.S. businesses. (See id. at 25.) Thus, the
3. Defendants' Reply
In reply, Defendants reiterate that Plaintiffs fail to establish either Lion Capital or Big Catch are essentially at home in the United States and that general jurisdiction does not exist despite the presence of a few former Lion Capital members and Big Catch shareholders in the United States. (Reply 10.) In support of this proposition, Defendants cite cases holding that a court should not exercise general personal jurisdiction over a limited partnership based solely on the citizenship of its members. (Id. at 10-11 (citing Carruth v. Michot, No. A-15-CA-189-SS, 2015 WL 6506550, at *7 (W.D. Tex. Oct. 26, 2015); and Duncanson v. Wine & Canvas IP Holdings LLC, No. 16-cv-788-SEB-DML, 2017 WL 6994541, at *4 n.3 (S.D. Ind. Apr. 20, 2017)).)
4. Court's Analysis
a. Paradigmatic Locations
The paradigmatic location for general jurisdiction depends, in part, on the type of entity; for an individual it is her domicile, or for a corporation it is where the corporation is fairly regarded as "at home."
Big Catch is a holding company with no employees and no offices and was organized under the laws of the Cayman Islands. (Brown Decl. ¶¶ 18, 21.) Its partnership agreement recites that Big Catch's principal place of business was the former Lion Americas' office in New York or wherever the general partner designates. (LION_14788, at 794.) Defendants maintain that the New York address is simply a mailing address and is insufficient for general jurisdiction. (MTD 18 n.5 (citing In re Hydroxycut Mktg. & Sales Practices Litig., 2010 WL 2998855, at *3).) Plaintiff's only counterargument is that the partnership agreement says "principal place of business," thus Big Catch must have a principal place of business in New York. (Nation Opp'n 13.)
The Court agrees with Defendants as to Big Catch. Big Catch has no office of its own; it listed Lion Americas' New York office as its principal place of business in the general partnership agreement. But, the New York office is simply a mailing address for Big Catch. This is evident because the partnership agreement says "c/o" or care of the New York address and there is no indication whether or not Big Catch conducts independent activities there. Big Catch is merely a holding company and designating an already existing office to act as a mailing address does not confer general personal jurisdiction. Therefore, the Court finds neither Lion Capital nor Big Catch is at home in the United States under the two paradigmatic locations.
b. Exceptional Case Requirement
Finally, the Court turns to the exceptional case requirement; two cases illustrate the requirements to apply general jurisdiction. In Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. at 418, 104 S.Ct. 1868, the Supreme Court held that a Texas state court did not have general personal jurisdiction over a Colombian corporation. There, the corporation did not have a place of business in Texas and was never licensed to do business in Texas. Id. at 416, 104 S.Ct. 1868. Instead, the contacts amounted to the chief executive traveling to Houston for negotiations, accepting checks drawn from a Houston bank, purchasing helicopters from a Texas corporation, and sending personnel to Texas for training. Id. The Supreme Court held that these contacts were insufficient to satisfy the due process requirements of personal jurisdiction. Id. at 418, 104 S.Ct. 1868. Next, in Ranza v. Nike, Inc., the Ninth Circuit held that no general personal jurisdiction existed in Oregon where a subsidiary sent employees and products to Oregon and engaged in some business there. 793 F.3d 1059, 1070 (9th Cir. 2015). Instead, the relevant inquiry "examines a corporation's activities worldwide — not just the extent of its contacts in the forum state — to determine where it can be rightly considered at home." Id. (citing Daimler, 571 U.S. at 139 n.20, 134 S.Ct. 746). The Ranza court applied Daimler and recognized that Nike's Dutch-based subsidiary's activities in Oregon were limited compared to its extensive European contacts. Id. Therefore, the subsidiary could not be considered at home in Oregon. Id. at 1069-70.
Here, Lion Capital's designated member allegedly traveled to the United States to attend board of directors' meetings. (See, e.g., LION_4334.) Lion Capital availed itself of the PTO by registering two trademarks and later defended those trademarks in the U.S. judicial system. Lion members attending board meetings are similar to the facts of Helicopteros and Ranza because, like those cases, Lion's executive(s) traveled to the relevant forum. And, using the PTO and the courts to defend a trademark is similar to conducting limited business in Helicopteros (purchasing helicopters) and Ranza (sending products to Oregon). Neither is sufficient to meet the exceptional case requirement.
The presence and holding out to the public of the office in New York and, later, Los Angeles, presents a more viable contact to assess the exceptional case requirement. It is clear that Lion Capital held out Lion Americas' North American office as belonging to Lion Capital generally or Lion Capital specifically. (See LION_6955, at 2; LION_4213.) Yet, post-Daimler, the presence of offices in the forum state does not, by itself, render a defendant subject to general jurisdiction. See 571 U.S. at 158, 134 S.Ct. 746 (Sotomayor, J., concurring in the judgment) ("[T]he majority holds today that Daimler is not subject to general jurisdiction in California despite its multiple offices, continuous operations, and billions of dollars' worth of sales there."). Lion Capital held out the North America office as one of its own, but the North American office was not Lion Capital's primary office. Its London office was and is home to the majority of Lion Capital employees and was where the Lion members ultimately directed operations. (Brown Decl. ¶ 4.) Lion Capital manages its four investment funds from the London office because, as Plaintiffs recognize, Lion Americas is a "non-discretionary investment advisor" to Lion Capital. (Id. ¶¶ 29-30; see Nation Opp'n 29.)
Daimler teaches that it is appropriate to compare business operations in the forum state with an entity's worldwide
Further, Big Catch does not meet the exceptional case requirement because it is a holding company. Plaintiff has not alleged any actions undertaken by Big Catch, which is not surprising as Big Catch is a holding company and not an operating company. Thus, it cannot meet the exceptional case requirement.
In sum, the foregoing activities do not suggest that Lion Capital's operations were "so substantial and of such a nature as to render [it] at home in" the United States. Daimler, 571 U.S. at 139 n.19, 134 S.Ct. 746. The Court finds that neither Lion Capital nor Big Catch meet the exceptional case requirement. The Court finds it does not have general personal jurisdiction over Lion Capital or Big Catch, based on their contacts alone.
B. Whether the Court Has General Jurisdiction over Lion Americas
Defendants do not dispute that Lion Americas is properly before this Court. Lion Americas has a principal place of business in Santa Monica, California, which would subject it to general jurisdiction in California, and thus the United States. (See Brown Decl. ¶ 24.) Accordingly, this Court has personal jurisdiction over Lion Americas.
C. Whether Lion Americas' Contacts Impute to Lion Capital
Plaintiff the Cherokee Nation argues "it is through [Lion] Americas that Lion Capital solicits and engages in business in California, making itself `at home' there." (Nation Opp'n 29 (citing Newport Components, Inc. v. NEC Home Electronics, Inc., 671 F.Supp. 1525, 1534 n.10 (C.D. Cal. 1987); and Daimler, 571 U.S. at 136, 134 S.Ct. 746).)
"The existence of a parent-subsidiary relationship is insufficient, on its own, to justify imputing one entity's contacts with a forum state to another for the purpose of establishing personal jurisdiction." Ranza, 793 F.3d at 1070 (citing Unocal, 248 F.3d at 925-26). Generally, a parent corporation and its subsidiary are separate corporate forms, id. (citing Dole Food Co. v. Patrickson, 538 U.S. 468, 474, 123 S.Ct. 1655, 155 L.Ed.2d 643 (2003)), and the rule of corporate separateness "insulates a parent corporation from liability created by its subsidiary, notwithstanding the parent's ownership of the subsidiary," id. at 1071 (citing United States v. Bestfoods, 524 U.S. 51, 61, 118 S.Ct. 1876, 141 L.Ed.2d 43 (1998)). Despite the traditional rule of corporate separateness, the corporate veil may be pierced in limited circumstances, including in determining whether to exercise personal jurisdiction over a foreign defendant. Unocal, 248 F.3d at 926.
The Ninth Circuit previously held that district courts could test corporate separateness through either an agency relationship or an alter ego test. See id. (citing El-Fadl v. Central Bank of Jordan, 75 F.3d 668, 676 (D.C. Cir. 1996)). Following the Supreme Court's opinion in Daimler, the Ninth Circuit has held that only the alter ego test remains viable to analyze corporate separateness for purposes of general jurisdiction. Ranza, 793 F.3d at 1071. Federal courts apply the law of the forum state to determine whether a corporation is an alter ego of an individual.
Daimler also makes clear that even if the Court determines that one entity is the alter ego of the other, then foreign entity's activities in the forum jurisdiction must still meet the general jurisdiction requirements of being essentially "at home." 571 U.S. at 136, 134 S.Ct. 746 ("Even if we were to assume that [the domestic subsidiary] is at home in California, and further to assume that [its] contacts are imputable to [the foreign parent corporation], there would still be no basis to subject [the parent] to general jurisdiction in California, for [the parent's] slim contacts with the State hardly render it at home there." (footnote omitted)).
The Court applies the two-part alter ego test to determine whether Lion Americas' contacts with the United States impute to Lion Capital.
1. Unity of Interest
a. Plaintiffs' Arguments
Plaintiffs elucidate three broad categories of control by Lion Capital over Lion Americas. First, Plaintiffs rely on the method by which Lion Capital does business and holds itself out to the public. For example, Lion Capital held itself out as
Second, several employees had roles in both Lion Capital and Lion Americas. For example, Mr. Richard Lewis was the director of Lion Capital Management Services Limited, which is a Lion Capital member; Mr. Lewis was also the Chief Compliance Officer of Lion Americas. (Nation Opp'n 14 (citing LION_14076, at 90).) And, Mr. Rory O'Connor was designated as Lion Americas' agent for service of process, (id. at 14-15 (citing LION_14062)), while also a Lion Capital member, (id. at 15 (citing LION_14360, at 377)). Lion's websites of these gentlemen do not distinguish between Lion Capital and Lion Americas. (DPP Opp'n 28-29.) And, Lion Capital has disclosed that it was paying wages to select Lion Americas' employees at the same time Lion Americas was paying those individuals. (Id. at 29 (citing Brown Decl., Ex. E).) Finally, Lion Capital's annual return identified Lion Americas' executives (Chang and Capps) as members of Lion Capital. (Id. (citing Declaration of Samantha Stein ("Stein Decl."), Ex. 34, ECF No. 1292-13).)
Third, Lion Capital submitted a Securities and Exchange Commission ("SEC") Form ADV. That form identified Lion Americas as a "related person" controlled by Lion Capital, states the two entities are under common control, and states the two entities share supervised persons. (Nation Opp'n 29 (citing LION_14557, at 563; and LION_14667, at 673-74).) Further, the same filing disclosed that Lion Americas kept its "books and records" with Lion Capital (DPP Opp'n 27.) Based on this evidence, Plaintiffs conclude that Lion Capital controls Lion Americas such that personal jurisdiction would be appropriate over Lion Capital. (Id. at 29-30.)
b. Defendants' Reply
Defendants argue that Plaintiffs fail to establish unity of interest. (Four Track Reply 17.)
Third, Defendants contend that Lion Americas' oversight of Bumble Bee supports their jurisdictional arguments. (See id.) It was Lion Americas, not Lion Capital that monitored Bumble Bee. Fourth, Defendants argue that a website and email signatures that listed Lion Americas' personnel as working for Lion Capital do not demonstrate control. (Id. (citing Corcoran v. CVS Health Corp., 169 F.Supp.3d 970, 984 (N.D. Cal. 2016)).)
c. Court's Analysis
The unity of interest element requires "a showing that the parent controls the subsidiary to such a degree as to render the latter the mere instrumentality of the former." Ranza, 793 F.3d at 1073 (quoting Unocal, 248 F.3d at 926). The Ninth Circuit has described various situations where piercing the corporate veil may be appropriate. For example, the unity of interest test may be satisfied where the parent uses the subsidiary as a "marketing conduit" and attempts to shield itself from liability based on the subsidiary's activities. Unocal, 248 F.3d at 926 (citing United States v. Toyota Motor Corp., 561 F.Supp. 354, 359 (C.D. Cal. 1983)). Unity of interest may also be met when the parent corporation directs every facet of the subsidiary, "from broad policy decisions to routine matters of day-to-day operation[s]." Id. at 926-27 (quoting Rollins Burdick Hunter of S. Cal., Inc. v. Alexander & Alexander Servs., Inc., 206 Cal.App.3d 1, 11, 253 Cal.Rptr. 338 (1988)).
Conversely, in Unocal, the Ninth Circuit discussed situations when alter ego is not appropriate. There, the court held that the plaintiff did not meet the unity of interest prong when the evidence demonstrated "an active parent corporation involved directly in decision-making about its subsidiaries' holdings," but the parent and subsidiaries "observe[d] all of the corporate formalities necessary to maintain corporate separateness." 248 F.3d at 928. The Unocal court determined the following evidence to be insufficient to establish unity of interest:
Unocal, 248 F.3d at 927; see also Ranza, 793 F.3d at 1073-74 (citing facts with approval). Likewise, in Ranza, the Ninth Circuit had evidence that each entity "lease[d] its own facilities, maintain[ed] its own accounting books and records, enter[ed] into contracts on its own and pa[id] its own taxes." Ranza, 793 F.3d at 1074. The court also recognized that the two entities had separate boards of directors, though one
Turning to the case at hand, the Court begins with the baseline observation that Lion Americas is a wholly owned subsidiary of Lion Capital. (Brown Decl. ¶ 6.) Defendants state that Lion Capital and Lion Americas "maintain strict divisions between their management structures in order to comply with the Alternative Investment Fund Managers Directive ("AIFMD"), a European Union regulation." (Id. ¶ 27.) To ignore the corporate distinction between these two entities, Plaintiffs must demonstrate more than direct involvement in financing and macro-management of the subsidiary; Lion Capital must "dictate [e]very facet [of Lion Americas'] business." Unocal, 248 F.3d at 926 (first alteration in original) (internal quotation and citations omitted).
Plaintiffs point to shared offices between Lion Americas and Lion Capital. It is clear that Lion Americas had an office in New York, which later moved to Los Angeles. It is also certain that both Lion Americas and Lion Capital held out these North America offices as generally belonging to the Lion entities. It is not evident from the record which entity actually owned the offices. Other district courts have found that simply because a parent holds out its subsidiary's office without the parent mentioning that the latter is a separate entity is not definitive evidence that the parent controls day-to-day operations over the subsidiary. See Pokemon Co. Int'l, Inc. v. Shopify, Inc., No. 16-MC-80272-KAW, 2017 WL 697520, at *4 (N.D. Cal. Feb. 22, 2017) (citing Maple Leaf Adventures Corp. v. Jet Tern Marine Co., No. 15-cv-2504-AJB-BGS, 2016 WL 3063956, at *4, 8 (S.D. Cal. Mar. 11, 2016)). The Court does not discount that use of the same office is one factor under California alter ego analysis, see Associated Vendors, Inc. v. Oakland Meat Co., 210 Cal.App.2d 825, 839, 26 Cal.Rptr. 806 (1962), but without further evidence of day-to-day control, a shared office is unpersuasive.
Next, Plaintiffs point to shared members between Lion Americas and Lion Capital. For example, Messrs. Lindberg, Lewis, O'Connor all had roles in both Lion Americas and Lion Capital And, those individuals held themselves out to the public, both on websites and email as working for Lion Capital Yet, Unocal and Ranza both make clear that shared members is not sufficient to establish alter ego liability. See Ranza, 793 F.3d at 1074 Unocal, 248 F.3d at 927; see also Kramer Motors, 628 F.2d at 1177 (finding no alter ego relationship where parent company guaranteed loans for subsidiary, approved major decisions, placed several directors on the subsidiary's board, and was closely involved in pricing decisions); In re Conseco Ins. Co. Annuity Mktg. & Sales Practices Litig., No. C-05-04726 RMW, 2008 WL 4544441, at *5 (N.D. Cal. Sept. 30, 2008) (finding insufficient unity of interest where officers shared positions and share the same headquarters). The overlap of board members or executive officers here does not demonstrate that Lion Capital exercised day to day control over the operations of Lion Americas. This conclusion is buttressed by Lion Capital's compensation structure, which demonstrates that the two entities maintained different pay structures. Lion Americas paid Lion Americas' employees; Lion Capital generally did not compensate
The remaining evidence submitted by Plaintiffs is likewise unpersuasive. Lion Capital's Form ADV demonstrates that Lion Americas was a "related person" and that the two entities are under common control. (See LION_14557, at 563; LION_14667, at 673-74.) As the DPP Plaintiffs explain, the SEC defines control as "[t]he power, directly or indirectly, to direct the management or policies of [Lion Americas] whether through ownership of securities, by contract, or otherwise." (DPP Opp'n 27 (alterations in original).) Directing the management or policies of a wholly owned subsidiary is entirely in line with Ranza and Unocal's admonition that a parent may be involved in managing its subsidiary as long as they maintain corporate formalities necessary for corporate separateness. Moreover, the fact that Lion Capital complied with the SEC's disclosure requirements in the first instance buttresses the conclusion that it observes corporate formalities. Finally, Lion Americas' status as a "non-discretionary investment advisor" to Lion Capital does not explain how such a status deviates from the normal parent-subsidiary relationship.
To summarize the Ninth Circuit's guidance concerning unity of interest: "A parent corporation may be directly involved in financing and macro-management of its subsidiaries ... without exposing itself to a charge that each subsidiary is merely its alter ego." Ranza, 793 F.3d at 1074 (quoting Unocal, 248 F.3d at 927). The evidence demonstrates that Lion Capital exercised some level of control over Lion Americas and shared some personnel with it. However, Plaintiffs have not carried their burden to demonstrate that Lion Capital crossed from macro-management to day-to-day control over its subsidiary. The Court finds there was no unity of interest between Lion Americas and Lion Capital.
2. Alter Ego Conclusion
The DPP Plaintiffs argue that an inequitable result would follow because Lion Capital would not be held accountable for its acts and involvement in Bumble Bee. (DPP Opp'n 29.) Because Plaintiffs fail to carry their burden to demonstrate unity of interest, the Court does not reach the inequitable result argument.
Deviating from the rule of corporate separateness is an extreme remedy, sparingly used. Sonora Diamond Corp. v. Superior Court, 83 Cal.App.4th 523, 539, 99 Cal.Rptr.2d 824 (2000) (citing Calvert v. Huckins, 875 F.Supp. 674, 678 (E.D. Cal. 1995)). The facts here do not rise to such an extreme level. Accordingly, the Court finds that Plaintiffs fail to demonstrate Lion Americas' contact impute general personal jurisdiction to Lion Capital.
Finally, even if the Court were to assume that Lion Americas' contacts impute to Lion Capital, there is no still no basis to subject Lion Capital to general jurisdiction because the combined Lion Americas and Lion Capital contacts with the United States are not sufficient to render Lion Capital at home in the United States when considering the entirety of Lion Capital's contacts. See Daimler, 571 U.S. at 136-37, 134 S.Ct. 746. Even considering the Lion Americas' employees, the
II. Specific Jurisdiction
Due process "constrains a State's authority to bind a nonresident defendant to a judgment of its courts." Walden v. Fiore, 571 U.S. 277, 283, 134 S.Ct. 1115, 188 L.Ed.2d 12 (2014) (citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)). "A nonresident defendant must have `certain minimum contacts with [the forum] such that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.''" Axiom Foods, Inc. v. Acerchem Int'l, Inc., 874 F.3d 1064, 1068 (9th Cir. 2017) (alteration in original) (quoting Int'l Shoe, 326 U.S. at 316, 66 S.Ct. 154). "The inquiry whether a forum State may assert specific jurisdiction over a nonresident defendant `focuses on the relationship among the defendant, the forum, and the litigation.'" Walden, 571 U.S. at 283-84, 134 S.Ct. 1115 (internal quotation marks omitted) (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 775, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984)).
There are two principles undergirding the defendant-focused inquiry. "First, the relationship between the non-resident defendant, the forum, and the litigation `must arise out of contacts that the "defendant himself" creates with the forum State.'" Axiom Foods, 874 F.3d at 1068 (quoting Walden, 571 U.S. at 284, 134 S.Ct. 1115). "Second, the minimum contacts analysis examines `the defendant's contacts with the forum State itself, not the defendant's contacts with persons who reside there.'" Id. (quoting Walden, 571 U.S. at 285, 134 S.Ct. 1115).
Courts apply a three-part test to exercise specific jurisdiction over a non-resident defendant:
Williams v. Yamaha Motor Co., 851 F.3d 1015, 1023 (9th Cir. 2017) (alterations in original) (quoting Dole Food Co. v. Watts, 303 F.3d 1104, 1111 (9th Cir. 2002)). The burden is on the plaintiff to establish the first two prongs. Axiom Foods, 874 F.3d at 1068 (citing Schwarzenegger, 374 F.3d at 802). If the plaintiff satisfies the first two prongs then the defendant must present a "`compelling case' that exercise of jurisdiction would not be reasonable." College-Source, Inc. v. AcademyOne, Inc., 653 F.3d 1066, 1076 (9th Cir. 2011) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476-78, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)).
Where a case sounds in a tort, courts employ the purposeful direction test. See Axiom Foods, 874 F.3d at 1069 (citing Schwarzenegger, 374 F.3d at 802). Courts in this circuit apply the purposeful direction test to antitrust cases. See In re Capacitors Antitrust Litig., No. 14-cv-3264-JD, 2015 WL 3638551, at *2 (N.D. Cal. June 11, 2015) (citing In re W. States Wholesale Natural Gas Antitrust Litig., 715 F.3d 716, 743 (9th Cir. 2013), aff'd sub nom. Oneok, Inc. v. Learjet, Inc., ___ U.S.
Before applying the Ninth Circuit's three-part test for specific jurisdiction, the Court takes a detour into the realm of alter egos and imputing contacts. Plaintiffs assert a variety of facts and theories for the purposes of imputing the contacts of two entities already subject to the Court's jurisdiction — Bumble Bee and Lion Americas — to the two entities beyond the Court's jurisdiction — Lion Capital and Big Catch. The Court addresses Plaintiffs' Bumble Bee alter ego arguments first and then applies the traditional specific jurisdiction test. Finally, the Court will address Big Catch's alter ego status.
A. Whether Bumble Bee's Contacts May Be Imputed to Lion Capital
The Bashas Plaintiffs contend that Lion Capital is an alter ego of Bumble Bee and the Court should exercise personal jurisdiction over Lion Capital because of Bumble Bee's contacts. (Bashas Opp'n 27-31, 33.)
1. Whether Lion Capital or Lion Americas Must Own Bumble Bee
Before applying the two-part alter ego test, the Court addresses Defendants' threshold argument. Defendants argue that neither Lion Capital nor Lion Americas is a parent corporation to Bumble Bee. (MTD 25) (citing Brown Decl. ¶ 20); (Reply 19.) From that premise, Defendants conclude that Plaintiffs' alter ego analysis fails because Plaintiffs admit that the Lion entities are not equitable owners of Bumble Bee. (Reply 19 (citing Sonora Diamond, 83 Cal. App. 4th at 538, 99 Cal.Rptr.2d 824).) Plaintiffs contend that the alter ego test is a functional, not formal test and does not turn on formal corporate ownership. (Nation Opp'n 39 n.39 (citing United States v. Standard Beauty Supply Stores, Inc., 561 F.2d 774, 777 (9th Cir. 1977)); Bashas Opp'n 30 n.20 (same).)
The general rule is that a subsidiary corporation is "one that is controlled by another corporation by reason of the latter's ownership of at least a majority of the shares of capital stock." 1 William Meade Fletcher, Cyclopedia of the Law of Corporations, § 26 (rev. ed. 2017); see also Dole Food, 538 U.S. at 475, 123 S.Ct. 1655 (discussing general rule for subsidiaries of subsidiaries). The Ninth Circuit has previously held that "[o]wnership is a prerequisite to alter ego liability, and not a mere `factor' or `guideline.'" Hickey, 322 F.3d at 1128. However, the circuit later clarified in In re Schwarzkopf, 626 F.3d 1032, 1038 (9th Cir. 2010), that "Hickey ... did not foreclose the possibility that equitable ownership might be sufficient in some contexts." Schwarzkopf went on to consider several California decisions finding equitable ownership. See id. at 1038-39.
Here, neither Lion Capital nor Lion Americas directly owns Bumble Bee.
The next issue is whether Lion Capital has equitable ownership of Bumble Bee, despite not having direct ownership. Schwarzkopf indicates that equitable ownership is permitted under California law. The DPP Plaintiffs take up this argument stating that Lion Capital acts as Bumble Bee's owner and holds itself out as such; thus, Lion Capital is Bumble Bee's equitable owner. (DPP Opp'n 15 n.9.) Defendants aver that Lion Capital and Lion Americas are not the equitable owners of Bumble Bee because one of Lion Capital's funds owns Big Catch. (Reply 19.) For example, the DPP Complaint discloses an organizational chart that shows that the one of the funds owns Bumble Bee. (Four Track Reply 15 (citing "DPP Compl." ¶ 43, ECF No. 911).) Defendants distinguish cases finding equitable ownership because the Lion entities are not part of the "chain" of Bumble Bee's ownership. (Id. at 16 (citing Tatung Co. v. Shu Tze Hsu, 217 F.Supp.3d 1138, 1177 (C.D. Cal. 2016)).)
In Tatung Co., the district court discussed whether equitable ownership was sufficient to impose alter ego liability. 217 F.Supp.3d at 1178. There, several individuals did not own shares of the defendant company, but were alleged to act as owners of the defendant. Id. The court found that the fact that the individuals owned no shares in the defendant was not dispositive and that sufficient facts existed to demonstrate the individuals "acted as owner[s]" of the defendant by giving assets to the company and using assets to support loans by taken out by the defendant company. Id. (alteration in original). In Schwarzkopf, the Ninth Circuit cited with approval a California Court of Appeal case where the court imposed alter ego liability on a managing agent of an interinsurance exchange. 626 F.3d at 1039 (citing Troyk v. Farmers Grp., Inc., 171 Cal.App.4th 1305, 1343, 90 Cal.Rptr.3d 589 (2009)). The Troyk court reasoned that "[a]lthough the [interinsurance exchange] is legally owned by its subscribers (i.e., its insureds), its business activities are effectively controlled by its managing agent and attorney-in-fact." Id.; see also id. at 1343, 90 Cal.Rptr.3d 589 n.27 ("[G]iven that the subscribers are required to appoint the attorney-in-fact as managerial agent, the `ownership' element of the alter ego doctrine is not applicable in this context." (quoting Tran v. Farmers Grp., Inc., 104 Cal.App.4th 1202, 1219 n.7, 128 Cal.Rptr.2d 728 (2002))).
Here, Defendant Lion Capital is similar to the managing agent, its funds are similar to interinsurance exchange, and Lion's investors are similar to the subscribers who actually own the fund. Lion Capital may not have owned the fund that ultimately owned Bumble Bee, but it exercised control over the fund and where the fund directed its investments. Further, Lion Americas executives seemed to think that the Lion entities owned Bumble Bee. In November 2012, Mr. Capps of Lion Americas received an email asking to confirm the Bumble Bee ownership structure including a statement to the effect "Lion's share is more than 70%." (LION_4712.) Capps forwarded the email internally, asking "Chang, [please] confirm that we all have ownership at the [Bumble Bee] Holdco level." (Id.) Chang responded, "Our ownership ... is at a Cayman LP which sits above Bumble Bee HoldCo." (Id.) This suggests that Lion Americas believed that they, i.e., the Lion entities, "owned" Bumble Bee in some respect. At oral argument, the Bashas Plaintiffs directed the Court to Bumble Bee's criminal plea agreement where the parties to that agreement defined Bumble Bee's "parent companies" to include Lion Capital LLP, Lion Americas,
2. Unity of Interest
a. Defendants' Arguments
Defendants advance three broad arguments why Plaintiffs have not established unity of interest between Bumble Bee and Lion Capital. First, Defendants take issue with Plaintiffs' allegation that Bumble Bee was purposefully undercapitalized by the Lion entities as evidenced by the fact that Bumble Bee maintained a high debt to total capital ratio. (MTD 26 (citing Bashas Compl. ¶ 304).) Defendants cite the proposition that "[d]ifficulty in enforcing a judgment or collecting a debt does not satisfy th[e] [alter ego] standard." (Id. at 26-27 (quoting Sonora Diamond, 83 Cal. App. 4th at 539, 99 Cal.Rptr.2d 824).) Further, Defendants distinguish this case from cases involving inadequate capitalization because the latter occur "where the organizers failed to invest any money at all or put up only token amounts; or where the principals reduce an operating corporation to a mere shell by stripping it of its assets." (Id. at 27 (quoting Aliya Medcare Fin., LLC v. Nickell, No. CV 14-7806 VAP (Ex), 2016 WL 7448095, at *9 (C.D. Cal. June 24, 2016) ).) Defendants likewise argue that simply because Lion Capital financed the Bumble Bee acquisition as a "debt push-down" this does not illustrate an uncommon or illegitimate way for a private equity firm to direct an investment. (Id.)
Second, Defendants assert there is no alter ego liability through the four Lion members who sat on Bumble Bee's board of directors. (Id.) Defendants cite United States v. Bestfoods, 524 U.S. at 69, 118 S.Ct. 1876, for the proposition that "it is entirely appropriate for directors of a parent corporation to serve as directors of its subsidiary, and that fact alone may not serve to expose the parent corporation to liability for its subsidiary's acts." (Id. at 28.) Defendants parry Plaintiffs' allegations that Bumble Bee executives received shares in Big Catch, (id. (citing Bashas' Compl. ¶ 309) ), by arguing that "a parent corporation may be directly involved in financing and macro-management of its subsidiaries ... without exposing itself to a charge that each subsidiary is merely its alter ego," (id. (citing Wady v. Provident Life & Accident Ins. Co. of Am., 216 F.Supp.2d 1060, 1068 (C.D. Cal. 2012) ) ).
Third, Defendants consider various activities in the Bashas' Complaint including: employees at Lions Americas receiving regular, detailed reports about Bumble Bee's finances and operations; one of the Lion entities entering into a management agreement to provide advisory services to Bumble Bee; and unspecified Lion executives being involved in four Bumble Bee projects.
b. Plaintiffs' Arguments
Both the Bashas Plaintiffs and the Cherokee Nation submit three broad arguments that Lion entities dominated and controlled Bumble Bee. First, Lion executives received daily, monthly, and other periodic reports regarding Bumble Bee's operations and had direct input into Bumble Bee's business. (Nation Opp'n 38 (citing Nation FAC ¶¶ 47-50); Bashas Opp'n 29 (citing Bashas Compl. ¶¶ 309-15).) Plaintiffs cite one district court opinion that found daily, weekly, and monthly financial reports a relevant factor in the alter ego test. (Nation Opp'n 38 (citing Parker v. DPCE, Inc., No. CIV. A 91-4829, 1992 WL 501273, at *6 (E.D. Pa. Nov. 3, 1992) ); Bashas Opp'n 29 (same).)
Second, the Lion entities appointed three of the four Bumble Bee directors on Bumble Bee's board. (Nation Opp'n 39; Bashas Opp'n 30.) Messrs. Lea, Lindberg, and Capps have all served on the board of directors. (Nation Opp'n 39; Bashas Opp'n 30.) Plaintiffs acknowledge that dominion of the board of directors alone is not sufficient for alter ego, but urges the Court to consider it as a relevant factor in the unity of interest analysis. (Nation Opp'n 39 (citing ECF No. 295, at 14); Bashas Opp'n 30 (same).)
Third, Plaintiffs point to their allegations that Bumble Bee was undercapitalized by the Lion entities. (Nation Opp'n 39 (citing NetApp, Inc. v. Nimble Storage, Inc., No. 13-CV-5058-LHK HRL, 2015 WL 400251, *7 (N.D. Cal. Jan. 29, 2015) ); Bashas Opp'n 28 (same); DPP Opp'n 17.) The factual allegations include: (1) Bumble Bee took on debt from the Lion acquisition that left Bumble Bee with a negative net worth, (Nation FAC ¶¶ 41-42); (2) the Internal Revenue Service labeled Bumble Bee a "thinly capitalized corporation," (id. ¶ 43); and (3) Bumble Bee's public debt was downgraded by Standard & Poor's in 2016, despite Bumble Bee being profitable, (id. ¶ 42). (See Nation Opp'n 39; Bashas Opp'n 28.) Plaintiffs cite several cases where courts found alter ego liability when a subsidiary was undercapitalized and urges a similar result here. (Nation Opp'n 39 (citing, e.g., VIA Techs., Inc. v. ASUS Computer Int'l, No. 14-CV-3586-BLF, 2015 WL 3809382, at *5 (N.D. Cal. June 18, 2015) ); Bashas Opp'n 28 n.18 (same).)
c. Defendants' Reply
Defendants characterize many of the activities adduced by Plaintiffs as falling within the routine types of oversight that the Ninth Circuit held did not support an alter ego finding in Ranza and Unocal. (Reply 20.) Bumble Bee sending reports to Lion executives, Lion getting involved at a "very granular [level of] knowledge," appointment of board members, and supervision of finances are all consistent with the legitimate actions of a private-equity fund manager. (Id. at 20-21.)
Defendants also take issue with Plaintiffs' undercapitalization theory. They cite a Ninth Circuit definition for undercapitalization as requiring Plaintiffs to demonstrate "the corporate owner" has caused "a corporation [to be] so undercapitalized that it is unable to meet debts that may be reasonably be expected to arise in the normal course of business." (Id. at 24 (alteration in original) (quoting Perfect 10, Inc. v. Giganews, Inc., 847 F.3d 657, 677 (9th Cir. 2017) ).) If a business has sufficient capital to "operate its normal business" then it is not undercapitalized. (Id. (quoting In re Hydroxycut Mktg. & Sales
d. Court's Analysis
As before, the Court examines unity of interest to determine whether "the parent controls the subsidiary to such a degree as to render the latter the mere instrumentality of the former." Unocal, 248 F.3d at 926. The parties draw different conclusions from generally three categories of facts.
First, Plaintiffs argue that the Lion entities' involvement went beyond oversight typical of a portfolio company. This is evident to Plaintiffs because Lion executives received daily, monthly, and other periodic reports regarding Bumble Bee's operations and had direct input into Bumble Bee's business. (Nation Opp'n 38.) Receiving information and providing input on business decisions are exactly the sort of evidence that both the Unocal and Ranza courts examined and held to be insufficient to demonstrate unity of interest. In Unocal, the court was presented with evidence demonstrating the parent was involved in "its subsidiaries' acquisitions, divestments and capital expenditures" as well as "formulation of general business policies and strategies applicable to its subsidiaries." 248 F.3d at 927. In Ranza, the parent was "heavily involved" in its subsidiary's operations, including but not limited to control over the subsidiary's overall budget, approval authority of large purchases, and operating information tracking systems. 793 F.3d at 1074. In both cases, such a level of active involvement was insufficient to overcome the observance of corporate formalities.
Here, Plaintiffs have not demonstrated that a Lion entity was involved in, for example, hiring and firing decisions, negotiating contracts, making routine purchase decisions, and other routine day-to-day management operations for Bumble Bee. Cf. id. Plaintiffs cite a single unreported district court opinion for the proposition that receiving reports supports finding alter ego liability. See Parker, 1992 WL 501273, at *6. That case has limited applicability; receiving reports was one factor among others the court considered and the reasoning supporting the court's conclusion was not extensive. This Court focuses on the guiding principles from Unocal and Ranza — requiring evidence that the parent dictated every facet of the subsidiary from broad policy to day-to-day decisions. The oversight of Bumble Bee did not rise above the permissible level of oversight outlined in Unocal and Ranza.
Second, Plaintiffs contend that a Lion entity dominated Bumble Bee's board of directors. As all the parties recognize, several leading cases hold that shared directors, by itself, does not expose the parent corporation to liability for the subsidiary's acts. See Bestfoods, 524 U.S. at 69, 118 S.Ct. 1876 (citing Am. Protein Corp. v. AB Volvo, 844 F.2d 56, 57 (2d Cir.), cert denied, 488 U.S. 852, 109 S.Ct. 136, 102 L.Ed.2d 109 (1988) ); Unocal, 248 F.3d at 926. For its part, California law views identical directors as one factor in the unity of interest analysis, Associated Vendors, 210 Cal. App. 2d at 839, 26 Cal.Rptr. 806 (collecting cases), but does not view shared directors as dispositive, see Sonora Diamond, 83 Cal. App. 4th at 548-49, 99 Cal.Rptr.2d 824 ("It is considered a normal attribute of ownership that officers and directors of the parent serve as officers and directors of the subsidiary."). Here, Plaintiffs only demonstrate that Lion placed directors on Bumble Bee's board, but does not take the next step to explain how shared directors amounted to unity of
Third, the Court addresses undercapitalization.
These allegations are insufficient to demonstrate the type of undercapitalization necessary to pierce the corporate veil. There is no doubt that Bumble Bee carried a higher debt load post-acquisition than it did pre-acquisition. But, whether Bumble
Moreover, the level of debt here does not rise to the same level of undercapitalization in the cases Plaintiffs cite. For example, in Slottow, the entity's initial capitalization was $500,000 and its liabilities were $10 million. 10 F.3d at 1360. Thus, the defendant in Slottow could not pay its debts. In VIA Technologies, the entity had at most $500,000 in capital compared to anywhere from $400 million to $2 billion in annual sales. 2015 WL 3809382, at *5. The inference there was that the parent entity was funneling all the profits from its alter ego subsidiary. Here, Plaintiffs generally allege that Bumble Bee carried a high debt to total capital ratio; they do not allege that Bumble Bee could not meet its operating expenses.
The exception to this is an allegation Bumble Bee would have defaulted in 2011 but for the price fixing conspiracy. The basis for Plaintiffs' for the allegation is that the United States Sentencing Guidelines presumes a ten percent surcharge in price fixing cases and if one were to assume Bumble Bee's profits were reduced by ten percent then Bumble Bee would have defaulted. (See Bashas Compl. ¶ 305 & n.13.)
Automotriz Del Golfo De Cal., 47 Cal. 2d at 797, 306 P.2d 1 (quoting Henry Winthrop Ballantine, Ballantine on Corporations, at 302-03 (1946) ). Plaintiffs do not demonstrate that Defendants stripped Bumble Bee of its assets or that Bumble Bee's capital was "illusory or trifling." Indeed, while Bumble Bee had [Redacted] in liabilities, it also had [Redacted] in assets at the end of 2010. See Perfect 10, 847 F.3d at 678. Had Bumble Bee actually defaulted then it had capital on the line to meet its liabilities. The foregoing is simply not the pervasive undercapitalization required to demonstrate unity of interest.
In sum, the factors Plaintiffs allege do not demonstrate unity of interest to the extent necessary to ignore the traditional corporate separateness. Accordingly, the Court finds that Plaintiffs have not demonstrated unity of interest between Lion Capital and Bumble Bee.
3. Alter Ego Conclusion
Because the Court has determined that Plaintiffs fail to allege unity of interest, the Court need not proceed to the fraud or injustice prong. In sum, the Court finds Lion Capital is not the alter ego of Bumble Bee. The Court turns to the three-part specific jurisdiction test.
B. Purposeful Direction
The first prong of the specific jurisdiction analysis may be satisfied "even by a defendant `whose only "contact" with the forum state is the `purposeful direction' of a foreign act having effect in the forum state.'" Schwarzenegger, 374 F.3d at 803 (citations omitted) (quoting Dole Food Co., 303 F.3d at 1111). The Court analyzes purposeful direction under the Calder effects test, which requires the defendant to have "(1) committed an intentional act, (2) expressly aimed at the forum state, (3) causing harm that the defendant knows is likely to be suffered in the forum state." Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218, 1228 (9th Cir. 2011) (citing Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984) ). All three parts of the test must be satisfied. Schwarzenegger, 374 F.3d at 805.
1. Intentional Act
The first prong of the Calder effects test, the intentional act requirement, simply attempts to differentiate between an actual, physical act and an intent to accomplish a result or consequence of an act. See Picot v. Weston, 780 F.3d 1206, 1214 (9th Cir. 2015) (citing Schwarzenegger, 374 F.3d at 806).
Defendants argue that Plaintiffs do not allege that Lion Capital committed a single intentional act directly affecting the pricing, marketing, or sale of package tuna. (MTD 19.) Defendants implicitly concede that intentional acts occurred but instead argue those acts should not be imputed to Lion Capital and any intentional acts by Lion Capital do not directly affect the conspiracy. Thus, their argument is better suited for the express aiming prong.
Plaintiff the Cherokee Nation elucidates the following intentional acts. First, Lion Capital placed three Lion Americas executives on Bumble Bee's board of directors, which met in California on a regular basis. (Nation Opp'n 20 (citing Nation FAC ¶ 47).) Lion Americas executives also received financial information from Bumble Bee including [Redacted]. (Id. (citing, e.g., Nation FAC ¶ 49: Lion_3190-93).) Lion Capital members also received detailed information from Bumble Bee executives regarding raw material costs, acquisition issues, and competitive activity. (Id. at 21 (citing, e.g., LION_547).)
Plaintiff also points to Lion Capital executives engaging in Bumble Bee's business operations by:
(Id. at 20-21 (alterations in original) (quoting Nation FAC ¶ 50).) Lion Americas executives also communicated with Bumble Bee executives allegedly concerning the ongoing conspiracy to set prices. For example, [Redacted]. (Id. at 22 (citing LION_3445-58; and LION_3484; and LION_12605).)
Next, Lion Americas executives reported Bumble Bee dealings to Lion Capital investors, but did not reveal any information relating to price-fixing. (Id. at 22-23 (citing Nation FAC ¶ 51; and LION_4455-64).) Lion Americas executives also attended industry conferences with Bumble Bee executives and met and corresponded with industry competitors and their parent corporations. (Id. at 23 (citing, e.g., Nation FAC ¶ 52; and LION_1772; and LION_2429).)
The Bashas Plaintiffs contend that the intentional acts are intertwined with and reliant on the factual allegations contained in their complaint and that Defendants' argument to the contrary depends on the Court finding that Plaintiffs failed to allege any acts connecting Defendants to the broader conspiracy. (Bashas Opp'n 34-35.) To that end, Plaintiffs assert that they have adequately alleged that Lion, especially
The intentional act threshold is not a high bar. In Bancroft & Masters, Inc. v. Augusta National Inc., 223 F.3d 1082, 1088 (9th Cir. 2000), for instance, the act of sending a letter satisfied this requirement. Moreover, the Ninth Circuit has held that "[f]or purposes of personal jurisdiction, the actions of an agent are attributable to the principal." Sher, 911 F.2d at 1362 (citing Wells Fargo & Co. v. Wells Fargo Express Co., 556 F.2d 406, 419 (9th Cir. 1977) ); see also Ziegler v. Indian River Cnty., 64 F.3d 470, 475 (9th Cir. 1995) (applying Sher to executive vice-president acting on behalf of defendant corporation); Donatelli v. Nat'l Hockey League, 893 F.2d 459, 466 (1st Cir. 1990) ("The general rule is that jurisdiction over a partner confers jurisdiction over the partnership. Primarily, this comes about because a partner is deemed by law and contract to be the partnership's general agent." (citing 59A Am. Jur. 2d, Partnership, §§ 248-50 (1987); and Restatement (Second) of Agency § 14A, cmt. a (1958) ) ). Thus, the intentional acts taken by Lion Capital's partners also may be properly considered.
Here, Plaintiffs detail a variety of intentional acts undertaken by Defendants including receiving information, monitoring Bumble Bee projects, corresponding with Bumble Bee executives, investors, and competitors, and exchanging confidential information. These includes actions taken by Lion Capital partners Lindberg, Capps, and Chang in the scope of their partnership.
With regard to Big Catch, Plaintiffs do not adduce any intentional acts taken by Big Catch itself. Instead, they argue that Big Catch acted through its limited partners, i.e., shareholders, who are themselves members of the conspiracy.
2. Express Aiming
For the express aiming element, the Ninth Circuit has made clear that Calder requires "something more" than a foreign act that has foreseeable effects in the forum state. See, e.g., Bancroft, 223 F.3d at 1087; Schwarzenegger, 374 F.3d at 805. "[T]he requirement is satisfied when the defendant is alleged to have engaged in wrongful conduct targeted at a plaintiff whom the defendant knows to be a resident of the forum state." Bancroft, 223 F.3d at 1087. "The `express aiming' analysis depends, to a significant degree, on the specific type of tort or other wrongful conduct at issue." Schwarzenegger, 374 F.3d at 807.
"An antitrust defendant `expressly aims' an intentional act at a forum state when its allegedly anticompetitive behavior is targeted at a resident of the forum, or at the forum itself." In re Cathode Ray Tube (CRT) Antitrust Litig., 27 F.Supp.3d 1002, 1011 (N.D. Cal. 2014) (citing In re W. States Wholesale Natural Gas Antitrust Litig., 715 F.3d at 743). These cases discuss the relevant facts to support finding express aiming by an antitrust defendant. In CRT, the court described evidence demonstrating the defendants shared U.S. marketing information with co-conspirators, coordinated pricing decisions in relation to the United States, and discussed prices in U.S. dollars. See id.
Next, in Western States, the plaintiffs alleged that the defendant's
715 F.3d at 744. The policies and decisions were then implemented by affiliates. Id. The plaintiffs went on to allege that the conspiracy was "ordered and performed by [the defendants'] officers, directors, agents, employees or representatives while actively engaged in the management, direction, control or transaction of defendants' business or affairs." Id. The Ninth Circuit found "these alleged facts, taken as true, establish that the ... [d]efendants' price manipulation was `expressly aimed' at Wisconsin, because the ... [d]efendants knew and intended that the consequences of their price manipulation would be felt in Wisconsin." Id. (citing Ibrahim v. Dep't of Homeland Sec., 538 F.3d 1250, 1258 (9th Cir. 2008) ).
a. Defendants' Arguments
Defendants contend that none of the intentional acts demonstrated that Lion Capital or its employees acted directly to affect the pricing, marketing, or sale of packaged tuna. (MTD 19.) Defendants cite
Defendants also contend that Mr. Lindberg's meetings with competitors do not support the inference of wrongful conduct nor personal jurisdiction over Lion Capital. (Id.) Defendants state that there are no allegation that the meetings were aimed at the United States or resulted in harm to persons in the United States. (Id.)
b. Plaintiffs' Arguments
Plaintiffs argue that Lion Capital undertook two broad categories of actions: first, managing and oversight of Bumble Bee; second, meeting and communicating in furtherance of the conspiracy. With regard to managing and oversight, Plaintiffs contend Lion Capital placed three executives on Bumble Bee's board of directors, which met in California on a regular basis. (Nation Opp'n 20; Bashas Opp'n 37.) Next, Lindberg, Capps, Chang, and Bondy received regular sales and financial reports from Bumble Bee; Lion executives were also involved in day-to-day operations including implementing new projects. (Nation Opp'n 20-21; Bashas Opp'n 37.) Plaintiffs further allege that after board meetings, Lion and Bumble Bee executives would meet in private sessions and did not record minutes. (Nation Opp'n 21 (citing Nation FAC ¶ 50).) Lion executives also approved bonuses and were involved in Bumble Bee's 2011 restructuring request. (Id.)
As to meeting and communications, Plaintiffs allege that Mr. Lindberg and others at the Lion entities communicated with Bumble Bee CEO Lischewski about the conspiracy. (Id. at 22; Bashas Opp'n 36.) For example, Mr. Lischewski wrote to Messrs. Lindberg and Capps about an April 1, 2012 price increase and forwarded to them emails from other Bumble Bee executives with competitive pricing information, (Nation Opp'n 22 (citing LION_3445-58; LION_3484; LION_12605) ), including an email chain complaining about [Redacted] by competitors, (Bashas Opp'n 36 (quoting Ex. 69) ). Lion Americas executive Chang communicated to Lion Capital general manager Lea that [Redacted]" (Nation Opp'n 22 (quoting LION_3926).) And, a slide deck prepared for the August 2012 Bumble Bee board of stated "[Redacted]," and there was an "[Redacted]." (Id. (quoting LION_4334, at 369, 374).)
Next, Mr. Lischewski had longstanding relationships with industry competitors and reported information from those meetings to the Lion entities. (Id. at 23 (citing, e.g., LION_4307).) Mssrs. Lindberg, Smialek, and others from Lion attended industry conferences and corresponded with competitors. (Id. (citing, e.g., LION_6953).) The Bashas Plaintiffs argue that the conspiracy was U.S.-centric; for example, in 2008 Lischewski told Dongwon's CEO that ninety percent of Bumble Bee's sales came from the United States. (Bashas Opp'n 35 (citing Ex. 62; Ex 63, at 875-76).)
c. Court's Analysis
Here, the uncontroverted factual allegations and the record supports Plaintiffs' contention that Lion Capital expressly aimed anticompetitive behavior at the relevant forum, the United States. Before Lion
Mr. Lea continued to communicate with Lion Americas executives concerning Bumble Bee. (LION_1575 (merger and acquisition information); LION_2529 (receiving information on Lindberg's meetings in Bangkok); LION_4714, at 22 (discussing meeting with Lyndon).) On July 30, 2012, Mr. Lindberg sent an email to Mr. Lea in which the former stated:
(LION_547.) The reference to StarKist being in "[Redacted]" with Bumble Bee and "[Redacted]" suggests an agreement by Lion Capital to set prices in coordination with Dongwon. Mr. Lea also received information concerning Bumble Bee's 2012 financial results including an increase in net sales following "the price increases implemented through ." (LION_12617.) At oral argument, Defendants argued that the express aiming needs to be tortious and suggested none of the conduct business-related conduct elucidated by Plaintiffs was tortious. (ECF No. 1321, at 55) This reasoning depends, in part, on the Court's determinations with regard to liability, i.e., whether Plaintiffs state a federal antitrust claim. If the Court finds the allegations sufficient to state a claim, then the same business activities support an express aiming. Plaintiffs have the burden of establishing express aiming. As will be seen below, the Court has determined that Plaintiffs state a claim for which relief can be granted as to the same conduct at issue here for express aiming. See infra section V. Accordingly, the same acts involving Lion Capital partners, discussed below, which support an antitrust violation likewise support a finding of express aiming of anticompetitive behavior.
Like the defendants in Western States, Lion Capital executives and partners were involved in the direction and control of Bumble Bee during the relevant period of the conspiracy. They received information from their Lion Americas counterparts and communicated with Lion Americas about the alleged conspiracy. Some members
3. Foreseeable Harm
As the Supreme Court made clear in Walden v. Fiore, something more is required than "imposition of an injury... to be suffered by the plaintiff while she is residing in the forum state." 571 U.S. at 289 n.8, 134 S.Ct. 1115. Walden suggests the injury should be "tethered" to the forum state in a "meaningful way" in order to create a jurisdictionally relevant contact. Id. at 290, 134 S.Ct. 1115. For example, in Walden, the defendant, a deputized agent of the Drug Enforcement Administration ("DEA"), allegedly unlawfully seized the plaintiffs' cash at an Atlanta airport. Id. at 280, 134 S.Ct. 1115. The plaintiffs, Nevada residents, attempted to hale the deputized DEA agent into federal court in Nevada for injuries related to the seized funds. Id. at 281, 134 S.Ct. 1115. The Supreme Court held there was no personal jurisdiction and reasoned, the injury would follow the plaintiffs around no matter the state they chose to reside in, and thus the injury was not meaningfully tethered to Nevada. See id. at 289-90, 134 S.Ct. 1115.
The Ninth Circuit has stated "[o]ur case law does not require that the `brunt' of the harm be suffered in the forum state; as long as `a jurisdictionally sufficient amount of harm is suffered in the forum state, it does not matter that even more harm might have been suffered in another state." W. States, 715 F.3d at 744 (quoting Yahoo! Inc. v. La Ligue Contre Le Racisme Et L'Antisemitisme, 433 F.3d 1199, 1207 (9th Cir. 2006) (en banc) (per curiam) ). Here, it is foreseeable that Bumble Bee's anticompetitive behavior, overseen by Lion Capital, would cause harm suffered in the United States. Bumble Bee is a U.S. company and its sales are largely in the U.S. market. (Nation FAC ¶ 34; Bashas Compl. ¶ 19.) The harm falls on American consumers and the facts here clearly meet the foreseeability requirements articulated in Calder, Walden, and Western States. The Court finds Lion Capital meets the foreseeable harm requirement.
C. Arises Out of Forum Related Activities
A court determines whether a claim arises out of defendant's forum-related activities in terms of "but for" causation. Unocal, 248 F.3d at 924 (citing Ballard, 65 F.3d at 1500). The but for test requires "some nexus between the cause of action and the defendant's activities in the forum." Shute v. Carnival Cruise Lines, 897 F.2d 377, 387 (9th Cir. 1988), overruled on other grounds, 499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991). In the context of a federal antitrust case the but for test can be met by establishing the plaintiffs paid artificially high prices for the relevant products as a result of the defendant's activities. CRT, 27 F.Supp.3d at 1013.
Defendants argue that Plaintiffs do not allege any activity without which Plaintiffs' claim would not have arisen. (MTD 21.) Instead, the conspiracy existed before any Lion entity purchased Bumble Bee and Plaintiffs' allegations only speak to receiving information about the conspiracy, receiving profits from the conspiracy, and Lion's purported guilt by association. (Id.) Defendants conclude by arguing that Plaintiffs fail to allege a harm of which a Lion entity was a but for cause. (Id.)
Plaintiffs allege that they paid artificially high prices because of a conspiracy in the packaged seafood industry. (Bashas Compl. ¶ 324; Nation FAC ¶ 250.) The only question in dispute is whether those artificially high prices were the result of Defendants' forum-related activities. Plaintiffs put forward evidence supporting affirmative actions taken by Defendants Lion Americas and Lion Capital to further the conspiracy in their oversight of Bumble Bee, a California and U.S.-based company. See supra section II.E.2; infra section V. Accordingly, the Court finds Plaintiffs' claim arise out of Defendants' forum related activities.
D. Fair Play and Substantial Justice
For a court to exercise personal jurisdiction, whether general or specific, over a defendant, such assertion of jurisdiction must be "reasonable." Amoco Egypt Oil Co. v. Leonis Navigation Co., 1 F.3d 848, 851 (9th Cir. 1993). The defendant has the burden of making a "compelling case" that the exercise of jurisdiction is not reasonable. Martensen v. Koch, 942 F.Supp.2d 983, 993 (N.D. Cal. 2013). In assessing reasonableness, a court must weigh seven factors: (1) the extent of the defendant's purposeful interjection in the forum; (2) the burden on the defendant; (3) the extent of any conflict with the sovereignty of the defendant's domicile; (4) the forum state's interest in adjudicating the dispute; (5) the efficient resolution of the dispute; (6) the convenience and effectiveness of the plaintiff's relief; and (7) the existence of an alternative forum. Sinatra v. Nat'l Enquirer, Inc., 854 F.2d 1191, 1198-99 (9th Cir. 1988) (citations omitted).
Defendants contend the exercise of jurisdiction over them is unreasonable because it would plunge Lion Capital into a large American antitrust litigation to which the Lion entities have only a tenuous connection. (MTD 22.) Further, involvement in the case would place a severe burden on Lion Capital because its employees would be forced to travel from the United Kingdom to Southern California to participate in the litigation. (Id. (citing Asahi, 480 U.S. at 114-16, 107 S.Ct. 1026).)
Plaintiffs counter that Defendants have inserted themselves into California's affairs by owning a San Diego-based company. (Bashas Opp'n 40.) They further contend that the majority of relevant witnesses and documents reside in California and there "is little to no burden on either Lion entity to defend itself in California." (Id.) Plaintiffs also point out that Defendants do not argue that the remaining reasonableness factors militate against personal jurisdiction. (Id. at 41.) Plaintiffs conclude that personal jurisdiction is reasonable based on California's interest in enforcing antitrust laws, the interest of Plaintiffs in adjudicating the dispute where they were harmed, the importance of Bumble Bee to the local economy, and that any alternative forum would not provide effective relief for Plaintiffs. (See id.; see also Nation Opp'n 26-27 (advancing same arguments as Bashas Plaintiffs).)
Unlike Asahi, where the Supreme Court determined California had only a slight interest in adjudicating an indemnification claim, see id., the forum here has a greater interest in an antitrust claim affecting American consumers. Further, the MDL has progressed before this Court for several years, which supports Plaintiffs' interests in convenient and effective relief — judicial economy would not be served if Plaintiffs litigated against Lion Capital in the United Kingdom. Finally, Defendants do not put forward arguments concerning any conflict with the United Kingdom or the existence of an alternative forum, though the Court assumes that the U.K. likely could provide effective relief. In sum, the Court finds that finding personal jurisdiction over Lion Capital would comport with fair play and substantial justice. The Court finds that it has personal jurisdiction over Lion Capital. Accordingly, the Court
III. Imputing Personal Jurisdiction to Big Catch
Having determined that Lion Americas and Lion Capital are properly within the Court's personal jurisdiction, the remaining personal jurisdiction issue is Big Catch. In addressing this issue, Plaintiffs maintain Big Catch is subject to personal jurisdiction because Big Catch is the alter ego of Bumble Bee. (Bashas Opp'n 33; DPP Opp'n 20.) The DPP Plaintiffs also submit that Big Catch is the alter ego of Lion Capital
A. Whether Bumble Bee or Lion Capital's Contacts Impute to Big Catch
This Court has general personal jurisdiction over Bumble Bee because its principal place of business is in the United States, specifically San Diego, California, and is incorporated in Delaware. (Nation FAC ¶ 34; Bashas Compl. ¶ 19.) Additionally, the Court has determined that it has specific personal jurisdiction over Lion Capital. Plaintiffs advance several arguments why those respective contacts should impute to Big Catch.
1. Plaintiffs' Argument
The Cherokee Nation contends that Big Catch has systematic and continuous contacts
The Bashas Plaintiffs assert that Big Catch is a shell company and because shell companies are disregarded for purposes of personal jurisdiction
The DPP Plaintiffs maintain that both Big Catch and Lion Capital are the alter egos of Bumble Bee. The DPP Plaintiffs advance three general arguments to demonstrate unity of interest between Bumble Bee and Big Catch. First, Big Catch was established by Lion Capital for the purpose of purchasing Bumble Bee and has no presence outside of Lion and Bumble Bee. (Id. at 20 (citing Third Am. Consolidated Compl. ("TACC"), ECF No. 911, ¶ 45).) To that end, Big Catch does not have any employees of its own and does not engage in any business operations separate from Lion Capital and Bumble Bee. (Id. (citing TACC ¶ 37).) Second, Plaintiffs maintain that Bumble Bee and Lion executives make decisions for Big Catch and the only business Big Catch conducts is during Bumble Bee board meetings. (See id.) As a subset of the decisions made by Bumble Bee and Lion Capital, executives from those entities awarded shares in Big Catch as part of a "management incentive plan," which created an equity interest in Big Catch for Bumble Bee employees. (Id. at 20-21.) Plaintiffs allege that the equity interests were a conduit to transfer Bumble Bee profits to those persons holding Big Catch stock. (Id. at 21.) Third, the DPP Plaintiffs state that Big Catch is liable to pay a portion of Bumble Bee's criminal fine and argue Bumble Bee could not obligate Big Catch to guarantee the criminal fine unless Bumble Bee had control over Big Catch. (See id.) Plaintiffs conclude that it would be inequitable to allow Big Catch to escape potential judgment while at the same time receiving allegedly illicit profits from the price fixing conspiracy. (See id.)
2. Defendants' Reply
Defendants do not address Plaintiffs' alter ego argument until their Reply brief to the Four Track Plaintiffs. (See Four Track Reply 20-21; see also MTD 24-30; Four Track MTD 18-19; Reply 19-25.) Defendants refute the unity of interest argument by citing the proposition that a holding company is not presumed to be an alter ego of its subsidiary because it does not conduct independent business. (Four Track Reply 20 (citing Corcoran, 169 F.Supp.3d at 984; and China Basin Props., Ltd. v. One Pass, Inc., 812 F.Supp. 1038, 1041 (N.D. Cal. 1993) ).) Defendants assert that Plaintiffs' allegations have not overcome that presumption. Thus, the citizenship
3. Court's Analysis
Big Catch is a holding company that ultimately owns Bumble Bee through various corporate subsidaries. (Brown Decl. ¶¶ 20, 23.) Bumble Bee and Big Catch are separate legal entities. Therefore, Plaintiffs must demonstrate that Bumble Bee's contacts impute to Big Catch. The law is clear that the general personal jurisdiction of a subsidiary entity cannot be imputed to a parent entity under an agency theory. Daimler, 571 U.S. at 135-36, 134 S.Ct. 746; Ranza, 793 F.3d at 1071. The only way to impute Bumble Bee's general personal jurisdiction to Big Catch is if Bumble Bee is an alter ego of Big Catch. The cases cited by the Bashas Plaintiffs at oral argument and in their brief, for example, stand for the same proposition: courts will disregard a holding company's status for jurisdiction only when an alter ego relationship exists. (See Bashas Opp'n 33 n.25 (citing, e.g., Howard v. Everex Sys., Inc., 228 F.3d 1057, 1069 n.17 (9th Cir. 2000); and Transamerica Corp. v. Compana, LLC, No. C 05-549 MJJ, 2005 WL 2035594, at *3 (N.D. Cal. Aug. 22, 2005) ).)
Similarly, for purposes of imputing specific jurisdiction, plaintiffs must demonstrate an alter ego relationship between Bumble Bee and Big Catch. See Williams, 851 F.3d at 1024 ("[T]he Daimler Court's criticism of the Unocal standard found fault with the standard's own internal logic, and therefore applies with equal force regardless of whether the standard is used to establish general or specific jurisdiction.").
Turning to the familiar alter ego test, the Court agrees with Defendants that the citizenship of Big Catch's shareholders does not demonstrate unity of interest. Generally, the presence or citizenship of a limited partner, without more, is insufficient to confer personal jurisdiction over the limited partnership. See Goforit Entm't LLC v. Digimedia.com L.P., 513 F.Supp.2d 1325,
The Court also agrees that establishing a compensation structure that awards shares of a company, without more, is a normal business practice. Likewise, the Court is unconvinced by the Bashas Plaintiffs' argument that a complex corporate structure somehow demonstrates unity of interest. Again, establishing investment funds and using shell companies to purchase other entities, without more, is a normal business practice. But, Lion Capital's use of Big Catch after its creation raises questions about its independent corporate status.
"Generally, alter ego liability is reserved for the parent-subsidiary relationship. However, under the single-enterprise rule, liability can be found between sister companies." Las Palmas Assocs. v. Las Palmas Ctr. Assocs., 235 Cal.App.3d 1220, 1249, 1 Cal.Rptr.2d 301 (Ct. App. 1991). "A court may also disregard the corporate form in order to hold one corporation liable for the debts of another affiliated corporation when the latter `is so organized and controlled, and its affairs are so conducted, as to make it merely an instrumentality, agency, conduit, or adjunct of another corporation.'" Toho-Towa Co. v. Morgan Creek Prods., Inc., 217 Cal.App.4th 1096, 1107, 159 Cal.Rptr.3d 469 (Ct. App. 2013) (internal quotation marks omitted) (quoting Las Palmas, 235 Cal. App. 3d at 1249, 1 Cal.Rptr.2d 301). "Thus, where there is `such domination of finances, policies and practices that the controlled corporation has, so to speak, no separate mind, will or existence of its own and is but a business conduit for its principal,' the affiliated corporations may be deemed to be a single business enterprise, and the corporate veil pierced." Id. (quoting 1 Fletcher, Cyclopedia of the Law of Corps., § 43).
Applying that formulation of unity of interest here, Big Catch was organized by Lion Capital for the purpose of purchasing and holding Bumble Bee's shares. (See, e.g., Ex. 44, ECF No. 1246-33, at 5 (Bumble Bee corporate representative deposition).) As Mr. Brown has declared, Big Catch does not hold its own board meetings,
Monje v. Spin Master Inc., No. CV-09-1713-PHX-GMS, 2013 WL 2390625 (D. Ariz. May 30, 2013), presents a useful comparison. There, the plaintiff sought to impute the Arizona contacts of a subsidiary to its Luxemburg holding company using an alter ego theory. Id. at *5. The evidence before the court demonstrated that the holding company "manage[s] its investments and the financing of the activities of its subsidiaries, provide[s] support, facilitate[s] communication and develop[s] resources that are available Group-wide." Id. (alterations in original) (citations omitted). The court determined that the evidence showed the holding company was "a typical parent company. It provide[d] general policies to its subsidiary, keeps track of its financial performance, and tried to implement a certain product culture." Id. at *6. This case is illustrative of a holding company that maintains corporate formalities and performs some functions as a holding company.
The facts here are similar to the facts in Kayne v. Ho, No. LA CV09-6816 JAK (CWx), 2012 WL 12878753 (C.D. Cal. Sept. 6, 2012). There, the plaintiffs sought to apply alter ego to three holding companies that had no employees and no office buildings. See id. at *6-7. The companies had directors and shareholders that met in Hong Kong, but generally their only business was "investment holding." Id. at *6. The court found these allegations of unity of interest sufficient at the motion to dismiss stage. See id. at *8 ("Plaintiffs allege that the Kimbergold Defendants have no day-to-day activities. They have no employees or office buildings; instead, they are alleged to exist solely as holding companies. It is unpersuasive in the context of a motion to dismiss to contend that they cannot be alter egos simply because they have no `independent ego' in the first instance."). Here, Big Catch is a holding company that has no day-to-day activities, no employees, and no office buildings. Big Catch's business is Lion Capital's business and the Court finds Plaintiffs meet the unity of interest prong.
b. Fraud or Injustice
"[I]t would be unjust to permit those who control companies to treat them as a single or unitary enterprise and then assert their corporate separateness in order to commit frauds and other misdeeds with impunity." Las Palmas, 235 Cal. App. 3d at 1249, 1 Cal.Rptr.2d 301. "The purpose of the doctrine is not to protect every unsatisfied creditor, but rather to afford him protection, where some conduct amounting to bad faith makes it inequitable, under the applicable rule above cited, for the equitable owner of a corporation to hide behind its corporate veil." Associated Vendors, 210 Cal. App. 2d at 842, 26 Cal.Rptr. 806.
The DPP Plaintiffs allege that Lion created Big Catch for the purpose of "provid[ing] a tax efficient structure for acquisition." (TACC ¶ 43.) The complaint goes on to allege that Big Catch was set up to transfer Bumble Bee's operating profits out of Bumble Bee. (Id. ¶ 45: see also Bashas Compl. ¶ 272 ("[Redacted]....").) The Bashas Plaintiffs allege that [Redacted]. (See Bashas Compl. ¶ 316.)
The DPP Plaintiffs also argue that further inequity is evidenced by the criminal guilty plea entered by Bumble Bee in the Northern District. The DOJ Sentencing Memorandum imposes an additional fine
Defendants maintain that Plaintiffs do not allege facts to support the conclusory allegations. (MTD 29.) Thus, according to Defendants, Plaintiffs do not allege that Lion Capital ever collected the annual payment and admit that the payment was waived for some periods. (Id. (citing Bashas Compl. ¶ 297 n.12).) Defendants respond to the criminal guilty plea argument by stating that Bumble Bee's sale is hypothetical and Big Catch is not a defendant in any criminal proceedings. (Reply 22.)
The Court begins by noting that establishing a tax efficient structure to acquire a company is a routine business practice and does not establish inequity. Furthermore, Plaintiffs have not connected the annual EBITDA monitoring fees to Big Catch; instead, it appears that Lion Capital received the fees from Bumble Bee and there are no allegations connecting the fees to Big Catch. More persuasive, however, are the allegations concerning Bumble Bee's criminal fine. Plaintiffs allege the Sentencing Guidelines range was between $136.2 million and $272.4 million. (TACC ¶ 40.) Because Bumble Bee was unable to pay the full Guidelines penalty, the parties agreed that Bumble Bee would pay a $25 million fine and Big Catch guaranteed a fine of up to $81.5 million if Bumble Bee is sold, subject to undisclosed terms and conditions. (Id.; see also Stein Decl., Ex. 10, at 14-17.) While Defendants are correct that such a sale has not occurred to date, the motivating concern behind the fine guarantee was "to prevent an unjust outcome whereby Bumble Bee receives a reduction in its criminal fine due to its inability to pay and then shortly thereafter is sold, thereby eliminating the inability to pay." (Stein Decl., Ex. 10, at 18.) The DOJ Sentencing Memorandum went on to elaborate, "[b]y having Big Catch pay any additional fine, the government is essentially making a claim to a portion of the proceeds of a qualifying sale of Bumble Bee and ensuring that such a payment would be made before any distribution of the proceeds of the sale to investors." (Id.)
The government's claim to the proceeds of the sale ultimately depends on Bumble Bee's admission to participation in a criminal price fixing conspiracy. The investors, who would ostensibly reap the windfall of a sale, are Lion Capital's fund investors. Thus, there is a direct connection between preventing Lion Capital's investors from profiting from the price fixing conspiracy. And, Big Catch is the vehicle by which the government is preventing an injustice from occurring. This is sufficient for alleging an unjust result because as this Court has previously held, "at this early stage of litigation Plaintiffs need not
B. Fair Play and Substantial Justice
The Court's finding that Lion Capital's contacts impute to Big Catch must still comport with fair play and substantial justice, i.e., that it would be reasonable to assert jurisdiction. Big Catch has no independent status outside of Lion Capital; it
In sum, the Court finds that Big Catch is subject to the Court's personal jurisdiction through Lion Capital's specific jurisdiction contacts. Therefore, the Court does not reach various arguments advanced by Plaintiffs, including Big Catch consented to personal jurisdiction and Big Catch purposefully availed itself of the forum. The Court
IV. Indirect Purchaser State Law Claims
The Lion Defendants move separately to dismiss the majority of the state law claims brought by the indirect purchaser tracks — the EPPs and CFPs (or "Indirect Plaintiffs") — for lack of personal jurisdiction over certain state law claims. The Court addresses the Indirect Plaintiffs' state law claims separately because the issues are unique to the indirect purchasers.
A. Defendants' Arguments
Defendants argue that the Supreme Court's decision in Bristol-Myers Squibb v. Superior Court, ___ U.S. ___, 137 S.Ct. 1773, 198 L.Ed.2d 395, applies to the Indirect Plaintiff's state law claims and forecloses personal jurisdiction on those particular claims. (EPP/CFP MTD 21.) Defendants contend that "[t]here is no specific jurisdiction where `[t]he relevant plaintiffs are not [forum] residents and do not claim to have suffered harm in that State,' and `all the conduct giving rise to the nonresidents' claims occurred elsewhere.'" (Id. at 21-22 (second and third alterations in original) (quoting Bristol-Myers, 137 S.Ct. at 1782) ). Defendants cite several district court opinions where courts applied the Bristol-Myers rule to dismiss claims brought by out-of-state plaintiffs based on out-of-state conduct. (See id. at 23 (citing, e.g., In re Samsung Galaxy Smartphone Mktg. & Sales Practices Litig., No. 16-cv-6391-BLF, 2018 WL 1576457, at *2 (N.D. Cal. Mar. 30, 2018) ).)
Defendants assert the foregoing analysis applies to the Indirect Plaintiffs who are not California residents, are bringing claims under the state law where they reside, and assert the harm occurred in states outside of California. (Id. at 24.) Defendants argue that claims brought under California law fail the traditional purposeful direction test for the same reasons discussed in its moving papers as to the Bashas Plaintiffs and the Cherokee Nation. (See id. at 24-25.)
Next, Defendants argue that this case's status as an MDL does not save the Indirect Plaintiffs' claims. The general rule is that "[i]n an MDL proceeding, the MDL transferee court has jurisdiction over cases transferred under 28 U.S.C. § 1407 only if the court from which the case was transferred would have jurisdiction." (Id. at 26 (quoting In re Testosterone Replacement Therapy Prods. Liab. Litig. Coordinated Pretrial Proceedings, 164 F.Supp.3d 1040, 1045 (N.D. Ill. 2016) ).) Defendants assert that even if the individual Indirect Plaintiffs had filed their state-law claims in the forums where the respective claims arose, then those courts would still lack personal jurisdiction. (See id. at 26-27.) This is because, according to Defendants, the Indirect Plaintiffs have not established that Lion Capital or Big Catch formed minimal contacts with any of the states under whose laws the various claims arose. (Id. at 27.) Defendants aver that even if the Court were to find specific jurisdiction
Finally, Defendants address the California Cartwright Act claims. They posit that even if there were personal jurisdiction over the California-law claims of the indirect purchaser California residents, there is no jurisdiction to bring Cartwright Act claims on behalf of non-California residents. (Id. at 28.) Defendants cite a leading treatise that stated, "[t]he Supreme Court's recent cases point to the conclusion that neither general nor specific jurisdiction exists over nationwide class suits except in the defendant's home states." (Id. (quoting 2 Newberg on Class Actions, § 6.26 (5th ed. 2018) ).) Accordingly, Defendants argue that the California residents cannot sponsor the nonresident indirect purchaser claims from other states. (See id. at 29.)
B. Indirect Plaintiffs' Arguments
The Indirect Plaintiffs respond that personal jurisdiction exists over the Cartwright Act and other state law claims.
Next, the Indirect Plaintiffs contend that because the Court should find specific jurisdiction over Lion Capital and Big Catch for the Cartwright Act claims, Plaintiffs may bring their remaining state law claims under two different theories. First, Federal Rule of Civil Procedure 18(a) allows a party to join independent or alternative claims against an opposing party. (Id. at 22.) Second, this Court can exercise pendent personal jurisdiction over any remaining claims that arise out of the same common nucleus of operative facts as the claim for which jurisdiction exists. (Id. at 22-23 (citing Picot, 780 F.3d at 1211).)
Finally, the Indirect Plaintiffs contend that Bristol-Myers does not alter a finding of personal jurisdiction here. They assert that there is a sufficient affiliation between the forum and the underlying controversy because of the specific acts of alleged conspiratorial conduct took place in California. (See id. at 25.) The Indirect Plaintiffs then cite three district court opinions that determined Bristol-Myers does not apply to federal class actions. (See id. at 26 (citing, e.g., Fitzhenry-Russell v. Dr. Pepper Snapple Grp., Inc., No. 17-cv-564 N.C. 2017 WL 4224723, at *4-5 (N.D. Cal. Sept. 22, 2017) ).) Plaintiffs conclude that all of their injuries arose out of the Lion entities' illegal price-fixing actions, which largely occurred in the forum. (See id. at 26-27.)
C. Defendants' Reply
Defendants first rebut Plaintiffs' claim that Bristol-Myers is distinguishable because
Next, Defendants contend that even if the Court were to consider only the named plaintiffs, those plaintiffs cannot allege any connection between their purchases and the Lion entities' activities in California. (See id. at 25-26.) Defendants then rebut Plaintiffs' Rule 18 argument by stating that personal jurisdiction must be satisfied before any claim is joined under Rule 18. (Id. at 26 (citing Allied Prof'ls Ins. Co. v. Harmon, No. 16-cv-1864-JLS-KESx, 2017 WL 5634861, at *4 (C.D. Cal. Mar. 7, 2017) ).) They also cite a district court opinion that casts doubt on the viability of the pendent personal jurisdiction doctrine post-Bristol-Myers. (Id. (citing Greene v. Mizuho Bank, Ltd., 289 F.Supp.3d 870, 875 (N.D. Ill. 2017) ).)
Then, Defendants turn to the Cartwright Act claims. They argue that the cases cited by the Indirect Plaintiffs relate to choice-of-law due process principles, but Defendants are relying on specific personal jurisdiction due process principles. (Id. at 27.) They contend the nonresident Indirect Plaintiffs cannot establish specific personal jurisdiction in light of Bristol-Myers. (See id. at 29.)
D. Court's Analysis
In the wake of the Supreme Court's opinion in Bristol-Myers, district courts are divided over how far to apply its holding and reasoning. Does Bristol-Myers apply to federal courts hearing federal class action claims? Does it overrule, sub silentio, the doctrine of pendent personal jurisdiction? These are open questions and the Court treads carefully.
But first the obvious. Plaintiffs argue that the multi-state Cartwright Act class satisfies due process and cite this Court's prior order as well as several other court opinions in support of that proposition. Every single case they cite deals with choice-of-law analysis. For example, this Court's prior order determined that the Ninth's Circuit's analysis in Mazza v. American Honda Motor Co., 666 F.3d 581, 587 (9th Cir. 2012), "sets forth a three-element test to examine California choice-of-law analysis [to] determine whether a putative class is valid under the Cartwright Act." (ECF No. 492, at 17 (citation omitted).) Likewise, the district court opinions in Optical Disk, 2016 WL 467444, at *12-13, and Korean Ramen, 2017 WL 235052, at *21-22, as well as the Ninth Circuit decision in AT & T Mobility, 707 F.3d at 1113, all shared a common mode of analysis: choice-of-law. The Court agrees with Defendants that choice-of-law due process analysis is distinct from personal jurisdiction due process analysis. See Kulko v. Superior Court, 436 U.S. 84, 98, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978); Hanson v. Denckla, 357 U.S. 235, 254, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958) ("The issue is personal jurisdiction, not choice of law."). Thus, every single choice of law case cited by Plaintiffs is not on point. The Court also agrees with Defendants that Rule 18 does not obviate the need for personal jurisdiction for each claim a plaintiff seeks to add. See Allied Prof'ls, 2017 WL 5634861, at *4 (citing Data Disc, Inc. v. Sys. Tech. Assocs., Inc., 557 F.2d 1280, 1289 n.8 (9th Cir. 1977); and 6A Wright et al., Federal Practice and Procedure, § 1588 (3d ed. 2018) ). Plaintiffs must still establish that personal jurisdiction is appropriate in accordance with constitutional
Turning to the difficult questions. In the aftermath of Bristol-Myers, several courts have determined that its reasoning applies to federal courts sitting in diversity jurisdiction because a court must apply the state personal jurisdiction statute, as well as considering constitutional limits. See Fitzhenry-Russell, 2017 WL 4224723, at *4; see also In re Samsung Galaxy Smartphone Mktg. & Sales Practices Litig., 2018 WL 1576457, at *2; Greene, 289 F.Supp.3d at 874-75. Some of those courts have further determined that Bristol-Myers applies to federal class actions. See Chavez v. Church & Dwight Co., No. 17 C 1948, 2018 WL 2238191, at *10 (N.D. Ill. May 16, 2018) (collecting cases). Conversely, some courts have determined that even if Bristol-Myers applies generally while sitting in diversity; it does not categorically apply to federal class actions. See Fitzhenry-Russell, 2017 WL 4224723, at *5; see also In re Morning Song Bird Food Litig., No. 12CV01592 JAH-AGS, 2018 WL 1382746, at *5 (S.D. Cal. Mar. 19, 2018). At least one district court has determined that Bristol-Myers' reasoning does not categorically extend to a federal court when the court sits in federal question jurisdiction. See Sloan v. General Motors LLC, 287 F.Supp.3d 840, 858 (N.D. Cal. 2018).
Federal courts, sitting in diversity, apply the forum state's personal jurisdiction law. See Picot, 780 F.3d at 1211. The general consensus post-Bristol-Myers appears to be that because Bristol-Myers dealt with limits on state sovereign power within a federal system, its reasoning is applicable to federal courts sitting in diversity. See, e.g., Fitzhenry-Russell, 2017 WL 4224723, at *4. The opinion most skeptical of Bristol-Myers' applicability to federal courts expressly noted that it did "not address whether and how Bristol-Myers would apply if jurisdiction arose exclusively on the basis of diversity." Sloan, 287 F.Supp.3d at 859 n.2. This MDL case is not, however, before this Court solely on the basis of diversity jurisdiction. Several Plaintiffs invoke the Court's federal question jurisdiction. (See, e.g., Bashas Compl. ¶¶ 9, 322.) The Indirect Plaintiffs invoke the Court's federal question jurisdiction, (ECF No. 888, ¶ 111), but only bring state law causes of action, (see id. ¶ 402). The Court finds Sloan persuasive for the proposition that where a federal court sits in federal question jurisdiction, the due process concerns are different than those animating Bristol-Myers and a court would not apply Bristol-Myers when sitting in federal question jurisdiction. 287 F.Supp.3d at 859. This Court, however, does not rest entirely on that proposition as a basis for personal jurisdiction because the Indirect Plaintiffs do not bring any causes of action arising under federal law.
Even if the Court were to apply Bristol-Myers to the Indirect Plaintiffs' state law claims, the doctrine of pendent personal jurisdiction would provide an independent basis to find personal jurisdiction. "[A] court may assert pendent personal jurisdiction over a defendant with respect to a claim for which there is no independent basis of personal jurisdiction so long as it arises out of a common nucleus of operative facts with a claim in the same suit over which the court does have personal jurisdiction." Action Embroidery, 368 F.3d at 1180 (citations omitted). "Pendent personal jurisdiction is typically found where one or more federal claims for which there is nationwide personal jurisdiction are combined in the same suit with one or more state or federal claims for which there is not nationwide personal jurisdiction." Id. at 1180-81.
Pendent personal jurisdiction is appropriate here. The Court has before it federal
Defendants contend that the doctrine of pendent personal jurisdiction cannot survive Bristol-Myers and cite Greene, 289 F.Supp.3d at 874, for that proposition. Neither Defendants nor the Greene court explain their reasoning beyond this declarative statement. The district court in Muir v. Nature's Bounty (DE), Inc., No. 15 C 9835, 2018 WL 3647115, at *4 (N.D. Ill. Aug. 1, 2018), provides a helpful discussion of Bristol-Myers' impact on pendent personal jurisdiction. The court reasoned where a district court has personal jurisdiction over a federal question cause of action then it can exercise pendent personal jurisdiction without running afoul of Bristol-Myers. Id. This is because the Supreme Court limited its holding to state courts and the interstate federalism concerns motivating Bristol-Myers are not as pronounced when a federal court exercises coercive power based on original jurisdiction. Muir, 2018 WL 3647115, at *4 (citing Bristol-Myers, 137 S. Ct. at 1783-84; and Sloan, 287 F.Supp.3d at 858-59). This Court joins in the reasoning of Muir and Sloan and finds that pendent personal jurisdiction may be exercised where, as here, a federal statute provides for nationwide service of process.
The Court also finds that even though the Indirect Plaintiffs themselves do not bring a federal question cause of action, pendent personal jurisdiction is appropriate because the other Plaintiffs allege federal causes of action. The Sloan court addressed the same issue and reasoned that Action Embroidery "focused on whether the new claims arose out of the same nucleus of operative facts, not whether the claims belonged to the same plaintiffs." 287 F.Supp.3d at 860 (citing Action Embroidery, 368 F.3d at 1181). Thus, pendent personal jurisdiction is permissible when the other Plaintiffs bring federal questions based on the same nucleus of operative fact.
Exercising pendent personal jurisdiction also comports with fair play and substantial justice. See Axiom Foods, 874 F.3d at 1068; Action Embroidery, 368 F.3d at 1181. As previously discussed, the federal antitrust claims against the Lion Defendants will proceed before this Court. Therefore, the additional burden in litigating the pendent state law claims are minimal. And, as the Action Embroidery court reasoned, litigating all claims together in this MDL will reduce piecemeal litigation and improve judicial economy. The Court
V. Whether Plaintiffs State a Claim Against the Lion Entities
Plaintiffs bring a cause of action under section one of the Sherman Act. (See, e.g., Bashas Compl. ¶ 322; Nation FAC ¶ 248.) Defendants advance two broad theses why Plaintiffs fail to state a claim. First, they contend that Plaintiffs fail to state a claim against the Lion entities under an alter ego theory. (MTD 24.) Second, Defendants assert that Plaintiffs fail to state a claim that Defendants are direct participants in the alleged conspiracy. (Id. at 30.)
The parties' arguments with regard to alter ego liability are coextensive with the personal jurisdiction alter ego arguments. Therefore, the Court's prior findings apply with equal weight here. The Court finds no alter ego liability between Bumble Bee and any Lion entity. The Court finds that Plaintiffs have sufficiently alleged that Big Catch is the alter ego of Lion Capital. With that in mind, the Court turns to the alleged direct participation in the conspiracy.
A. Defendants' Arguments
Defendants posit three broad arguments why Plaintiffs fail to state a claim. First, Plaintiffs' theory is implausible and makes no economic sense. (MTD 30.) Second, the allegations concerning actions taken by non-Lion defendants do not support direct participation by Lion Defendants. (Id. at 31.) Third, the allegations concerning actions taken by Lion Defendants themselves do not show direct and independent participation in the alleged conspiracy. (Id. at 32.)
1. Economic Sense
Plaintiffs' assert that Defendants uncovered the alleged price fixing conspiracy during due diligence for the Bumble Bee acquisition and then proceeded to direct a Lion investment fund to purchase Bumble Bee for the purposes of realizing supra-competitive profits from Bumble Bee's business. (Id. at 30 (citing Bashas Compl. ¶ 279).) Defendants argue this theory is implausible; specifically, it would make no economic sense for a private equity firm to risk its reputation so that one of its portfolio companies could earn profits from an illegal conspiracy. (Id.) According to Defendants, Plaintiffs fail to allege the Lion entities have "any rational motive to join the alleged conspiracy" or that "the conduct alleged `was consistent with the [Lion Entities'] independent interest.'" (Id. at 31 (quoting Cascades Comput. Innovation LLC v. RPX Corp., No. 12-CV-01143 YGR, 2013 WL 316023, at *11 (N.D. Cal. Jan. 24, 2013) ).)
2. Actions Concerning Non-Lion Actors
Plaintiffs also allege actions taken by non-Lion, i.e., Bumble Bee, actors. As an initial matter, Defendants take issue with Plaintiffs' group pleading, i.e., Plaintiffs' allegations are directed towards "Lion" rather than discrete entities. Defendants argue Plaintiffs fail to provide any Lion entity with fair notice of the discrete acts by which each one participated in the conspiracy. (Id.) Turning to the substance of Plaintiffs' arguments, Defendants contend that most of Plaintiffs' factual allegations do not involve Lion entities or only involve communications that Lion executives passively received from Bumble Bee. (Id.) For example, several phone calls and meetings that Plaintiffs allege showing a conspiracy involving Bumble Bee executives and StarKist and Chicken of the Sea executives do not include Lion executives. (Id. at 31-32 (citing Bashas Compl. ¶¶ 292, 294-95).)
Many allegations center on actions taken by a non-Lion actor, Mr. Lischewski, towards Lion employees. For example, on a January 16, 2012 phone call Lischewski conveyed to Chang what Lischewski believed to be a non-public price change by
3. Actions Concerning Lion Actors
Finally, Defendants assert that Plaintiffs fail to allege sufficient facts that Lion directly and independently participated in the conspiracy. They characterize the facts presented by Plaintiffs in support of their theory as four meetings and two emails — Defendants contend these four meetings
4. Arguments Specific to the Cherokee Nation's First Amended Complaint
The Cherokee Nation generally covers the same ground as the Bashas Plaintiffs except as to a few different facts demonstrating direct involvement. The Nation describes an email exchange between Lindberg and Chansiri where Lindberg sent Chansiri Bumble Bee's "strategic plan forecast and recent historical results" without "a formal [non-disclosure agreement]"; yet, despite the lack of a non-disclosure agreement, Lindberg made clear that the information was "very confidential." (ECF No. 1006-1, at 36 (quoting Nation FAC ¶ 53).) Defendants characterize this exchange as consistent with Lion's desire to sell Bumble Bee to the highest bidder and the exchange does not plausibly suggest direct participation in the conspiracy. (Id.)
Next, the Cherokee Nation alleges Lischewski shared information with the Lion entities he gleaned from his "relationships throughout the industry" including an instance where he told employees of the Lion entities that "[i]nternally no one at [Chicken of the Sea] knows what [Thai Union Group's statement] means." (Id. at 34 (quoting Nation FAC ¶ 52).) Defendants argue that Plaintiff does not allege what the "statement" was or meant, what Lion employees thought about the statement, what Lischewski's report about the statement meant, or how any of this was connected to the alleged conspiracy. (See id.)
In sum, Defendants recognize that this Court has previously held that the MDL plaintiffs have plausibly alleged the existence of a conspiracy in the packaged tuna industry, but the allegations here do not establish direct and independent participation. (MTD 35.) Instead, the allegations describe rational, legitimate business activity typical of a private equity firm. (Id.)
B. Plaintiffs' Arguments
1. Economic Sense
With regard to Defendants argument that it would make no economic sense for
2. Direct Involvement by Lion
Next, as to Lion entities' direct involvement. Plaintiffs argue that their allegations go beyond four meetings and two emails, but even those events would be sufficient to state a claim. (Id. at 23.) For example, before Lion Capital purchased Bumble Bee, Lischewski told Lindberg that a "[Redacted]" was that Lion Capital would "[Redacted]." (Id. (quoting Bashas Compl. ¶ 278).) Plaintiffs argue that they have already pled that Bumble Bee and Dongwon were conspiracy participants, making it more likely that Lischewski was referring to the conspiracy. (Id.) And, Lischewski's recent criminal indictment charged that he "us[ed] code" to conceal the conspiracy. (Id. at 23-24 (quoting Ex. 45, at 4).)
With regard to the meetings. Plaintiffs contend they follow a similar pattern as previously alleged, whereby the conspiracy participants exchanged assurances and then their respective subsidiaries would adhere to the pricing agreements. (See id.) Plaintiffs posit that had Lion told Dongwon and Thai Union that Lion Capital would not abide by their conspiratorial price increases, then Dongwon and Thai Union would not have continued to meet with Lion executives. (Id.) Plaintiffs allege this did not happen; instead, several further meetings occurred between October 2011 and 2014, thus Lion Capital agreed to the conspiracy. (Id. at 24-25 (citing Bashas Compl. ¶¶ 284, 286, 289-91).) Plaintiffs take issue with Defendants' argument that Lindberg's meetings are entirely consistent with the Lion entities' efforts to oversee its investment in Bumble Bee. Plaintiffs maintain they allege concrete facts such as emails from Chansiri to Lindberg asking [Redacted]. (Id. at 25.)
Plaintiffs return to Defendants' allegation that Lischewski thought he was relaying non-public information about StarKist's price increase to Lion Americas executives. They contend that, even though the information was public, Lischewski thought the information was private. He discussed Bumble Bee's agreed intention to implement a similar price increase and Lion accepted the information on those terms. (Id. at 26.) Finally, Plaintiffs reference the email that Lischewski sent to Lindberg and Capps about [Redacted] Plaintiff states that Defendants offer no alternative argument as to what "[Redacted]" refers to beyond an agreement to fix prices. (Id.) Further, StarKist and Bumble Bee are already members of an adequately-pled conspiracy. According to Plaintiff, the most logical inference is that "[Redacted]" referred to the conspiracy. (Id.)
C. Defendants' Reply
First, Defendants argue, again, that Plaintiffs' theory lacks economic sense. Defendants state that Plaintiffs agree that Lion Capital's business model is to strengthen and re-sell brands so that investors can achieve superior returns. (Reply 14.) Defendants distinguish the cases Plaintiffs cite because the defendants in those cases all stood to reap the profits from their conspiracies, but here, the Lion entities are not themselves in the packaged tuna business and do not directly
Second, Defendants reiterate that Plaintiffs' allegations concerning Lindberg's meetings and communications do not support a conclusion he or any Lion entity participated in the alleged conspiracy. (Id. at 16-17.) Thus, for example, Defendants contend Plaintiffs' allegation that Lindberg telling Chansiri that [Redacted]" was code for a conspiracy is implausible. (See id. at 17.)
Third, Defendants address Plaintiffs' allegations that certain meetings and communications were for the purpose of facilitating a sale of Bumble Bee. Defendants argue that facts concerning a potential sale cannot support a price-fixing claim because they are "entirely consistent with [the Lion Entities] pursuing [their] own economic interests," and have nothing to do with packaged-tuna pricing. (Id. (alterations in original) (quoting In re Pressure Sensitive Labelstock Antitrust Litig., 566 F.Supp.2d 363, 377 (M.D. Pa. 2008) ).)
Fourth, Defendants dispute Plaintiffs' arguments concerning Mr. Lischewski's indictment and that he used "code to conceal the conspiracy." Defendants argue that the motivations Plaintiffs attribute to Dongwon, Thai Union Group, or Lischewski do not support a plausible inference that any Lion entity evinced a "conscious commitment" to a price fixing conspiracy. (Id. at 18 (quoting Greencycle Paint, Inc. v. Paintcare, Inc., No. 15-cv-4059-MEJ, 2016 WL 1402845, at *4 (N.D. Cal. Apr. 8, 2016) ).)
Finally, Defendants turn to the January 26, 2012 email Mr. Lischewski sent to Lindberg and Capps. Defendants contend that by the time of this email, the April 2012 price increase was public knowledge and the inference the Court should take from the email is there was "aggressive pricing behavior in a highly competitive marketplace." (Id.)
D. Court's Analysis
Section one of the Sherman Act declares illegal "[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several states." 15 U.S.C. § 1. "A defendant may be held `liable under § 1 of the Sherman Act if that person ... [acted] either with the knowledge that the ... [action] would have unreasonable anticompetitive effects or with the purpose of producing those effects.'" Arandell Corp. v. Centerpoint Energy Servs., Inc., 900 F.3d 623, 629 (9th Cir. 2018) (alterations in original) (quoting United States v. Bailey, 444 U.S. 394, 404-05, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980) ). "Because § 1 of the Sherman Act `does not prohibit [all] unreasonable restraints of trade ... but only restraints effected by a contract, combination, or conspiracy,'" Twombly, 550 U.S. at 553, 127 S.Ct. 1955 (alterations in original) (quoting Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 775, 104 S.Ct. 2731, 81 L.Ed.2d 628 (1984) ), "`[t]he crucial question' is whether the challenged anticompetitive conduct `stem[s] from independent decision or from an agreement, tacit or express,'" id. (alterations in original) (quoting Theatre Enters., Inc. v. Paramount Film Distributing Corp., 346 U.S. 537, 540, 74 S.Ct. 257, 98 S.Ct. 273 (1954) ). The essential elements of a § 1
In Twombly, the Supreme Court emphasized the pleading requirements under section one of the Sherman Act:
550 U.S. at 555, 127 S.Ct. 1955 (second alteration in original) (citations and footnote omitted). The Twombly court "also suggested that to allege an agreement between antitrust co-conspirators, the complaint must allege facts such as a `specific time, place, or person involved in the alleged conspiracies' to give a defendant seeking to respond to allegations of a conspiracy an idea of where to begin." Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1047 (9th Cir. 2008) (quoting Twombly, 550 U.S. at 565 n.10, 127 S.Ct. 1955). With this general framework in mind, the Court turns to the parties' arguments.
1. Whether Plaintiffs' Theory Makes Economic Sense
"Antitrust claims must make economic sense." Adaptive Power Sols., LLC v. Hughes Missile Sys. Co., 141 F.3d 947, 952 (9th Cir. 1998) (citing Eastman Kodak Co. v. Image Tech. Servs. Inc., 504 U.S. 451, 468, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992) ). "At the motion to dismiss stage, the determination turns on whether the defendants had `any rational motive' to join the alleged conspiracy; and whether the conduct alleged `was consistent with the defendant's independent interest.'" Cascades Comput. Innovation, 2013 WL 316023, at *11 (quoting Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 596-97, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ).
Here, Plaintiffs allege that after decades of growth, demand for packaged tuna has been falling since 2004. (Bashas Compl. ¶ 74.) The U.S. demand for tuna has decreased from an average of 3.5 pounds of canned tuna per person in 2000 to under 2.5 pounds per person in 2014. (Id. ¶ 77, fig. 2.) At the same time as the decline in consumption from 2004 to 2014, Plaintiffs allege that there was an oversupply of raw tuna. (Id. ¶¶ 78-79.) Plaintiffs conclude that an increase in supply and a decline in demand would result in a corresponding decrease in prices. Instead, prices remained constant or increased from 2004 to at least 2015. (Id. ¶ 79.)
Lion Capital purchased Bumble Bee, on behalf of its investment fund, in late 2010. The parties agree that Lion Capital's business model, as a private equity investment firm, was to strengthen and resell Bumble Bee for a profit. This profit would benefit Lion's investors through an increase in value to Lion Capital's funds, which hold a portfolio of different consumer brands.
Defendants raise valid counterarguments; most persuasive of which is their contention that the Lion entities would not risk their clients' investments
2. Direct Participation by Lion Americas
a. Conspiracy Between Two or More Persons
In Twombly, the Supreme Court distinguished between allegations resting on "descriptions of parallel conduct" and "any independent allegation[s] of actual agreement." 550 U.S. at 564, 127 S.Ct. 1955. It is often the case that antitrust complaints do not include any direct and independent allegations of an agreement. See Name.Space, Inc. v. Internet Corp. for Assigned Names & Numbers, 795 F.3d 1124, 1130 (9th Cir. 2015) (citing Oltz v. St. Peter's Cmty. Hosp., 861 F.2d 1440, 1450-51 (9th Cir. 1988) ). "Because direct evidence of concerted action in violation of antitrust laws is so rare, the Supreme Court has traditionally granted fact finders some latitude to find collusion or conspiracy from parallel conduct and inferences drawn from the circumstances." Oltz, 861 F.2d at 1450-51 (citing Am. Tobacco
Here, there is no direct evidence of an agreement between Lion Americas' executives and the other members of the alleged conspiracy. Therefore, the Court examines Plaintiffs' circumstantial evidence of an anticompetitive agreement. See id. Several of Plaintiffs' allegations fail to state a claim for direct participation. For example, Plaintiffs' allegation that Lischewski told Lindberg that a "[Redacted]," (Bashas Compl. ¶ 278), does not plausibly lead to an inference of conspiracy. The Court has previously found that references to rational behavior, without more, do not plausibly state a claim. (See ECF No. 295, at 9 ("[P]erhaps [Thai Union Group] meant what it said when it praised more rational competition in the United States.").) Plaintiffs allege that "[Redacted]." (Bashas Compl. ¶ 284.) This is not surprising given Lindberg's role as a board member and Lion Americas' oversight role in Bumble Bee and does not infer a conspiracy. These allegations are insufficient to plausibly state a claim.
If that were the extent of the allegations, this would be an easy call. However, Plaintiffs provide additional factual matter that plausibly demonstrates Lion Americas directly participated in the ongoing conspiracy. At the macro-level, the following considerations are notable. First, the ongoing DOJ inquiry: in its first order discussing direct participation in a price-fixing conspiracy, this Court noted that the ongoing DOJ inquiry "may bolster additional allegations." (ECF No. 283, at 13-14.) The Court noted the problems in "relying solely or too heavily on pending government investigations in analyzing the sufficiency of a conspiracy complaint." (Id. at 14.) As a district court in the Northern District stated, "[i]t is unknown whether the investigation will result in indictments or nothing at all.... the scope of the investigation is pure speculation. It may be broader or narrower than the allegations at issue." In re Graphics Processing Units Antitrust Litig., 527 F.Supp.2d 1011, 1024 (N.D. Cal. 2007).
In this instance, the outcome of the investigation is not "pure speculation." Bumble Bee has pled guilty to a conspiracy to fix prices in the packaged seafood market in the United States. (Bashas Compl. ¶ 268.) Two executives at Bumble Bee have also pled guilty and Mr. Lischewski has been indicted. (See id. ¶ 4; Ex. 45, ECF No. 1247-17.) The DOJ's investigation has moved beyond the nascent stages outlined in the Court's prior order, (see ECF No. 283, at 14-15), and the Court considers those facts as part of its analysis.
Also meriting discussion, Plaintiffs describe the market dynamics and Lion's knowledge of those realities. Plaintiffs have alleged that from 2004 through 2014 domestic U.S. consumption of tuna has declined. (Bashas Compl. ¶ 76.) And, the global supply of raw tuna increased over that same time period. (Id. ¶ 78.) In a normal market this would decrease prices. However, as Plaintiffs point out, the dollar sales of packaged tuna increased while the volume of sales has decreased, which supports a conclusion that prices increased. (See id. ¶ 76 fig. 1.) Defendants had access to sales and production data from Bumble Bee and, as they admit, Lion Capital is a "sophisticated investment firm." (Reply 15.) One might expect a sophisticated investment firm to diagnose why prices remained elevated despite decreasing demand and increasing
The period from January to March 2012 is particularly salient. Plaintiffs discuss a specific telephone conversation on January 16, 2012, where Lischewski thought he was giving Mr. Chang StarKist's non-public price list information. (Bashas Compl. ¶ 287.) The information was already public. (Id.) However, Plaintiffs plausibly allege that Lischewski was unaware of that fact because the day after the call, Lischewski emailed Cameron "[Redacted]," i.e., the day after the call. (Id. ¶ 287 n.10.) Plaintiffs do not allege what Chang knew or how he responded to Lischewski's information, but it is reasonable to infer that Chang had at least some context concerning the price increases. Two days later. Plaintiffs allege Lischewski forwarded to Lindberg and Capps an email exchange between Cameron and Worsham "[Redacted] (Id. ¶ 288.) Lischewski commented that Chicken of the Sea and StarKist were "[Redacted]" on first quarter pricing, but "[Redacted]." (Id.) Defendants dismiss these allegations as concerning public information in a highly competitive marketplace. (See Reply 18.)
The word [Redacted] is of particular interest; it carries negative connotations and likely would put the reader of an email on notice that some mischief is afoot. Combining this negative word with Lischewski's corollary hope that the price increase would correct "[Redacted]," yields a reasonable inference that the price increases were not legitimate business practice. Put differently, the allegations plausibly describe an instance where StarKist was undertaking some mischief that would be corrected by a price increase. And, Worsham and Cameron allegedly complained about a discrepancy between StarKist personnel and leadership over pricing tactics, which gives further context to the cheating or mischief. Defendants are correct that Plaintiffs do not plead that Lindberg or Capps knew what the email referred to; however, Twombly does not require certitude. It only requires enough factual matter to nudge allegations from mere possibility to plausible. See Twombly, 550 U.S. at 559, 127 S.Ct. 1955.
A few weeks later, Lindberg and Chansiri corresponded via email. Plaintiffs allege asked [Redacted]. (Bashas Compl. ¶ 289.) Lindberg replied, "[Redacted]." (Id.
Finally, on March 30, 2012, Lischewski and Lindberg corresponded via email concerning an article featuring StarKist's president and CEO, who had voiced support to increase package tuna prices. Lindberg allegedly wanted Lischewski to publicly echo those comments, which Lischewski thought unnecessary because [Redacted] (Id.) ¶ 29 encouraged Lischewki, stating:
(Id. (emphasis omitted).) This exchange suggests that there was a discrepancy between StarKist's and Bumble Bee's understanding of or interpretation of market prices and Lindberg wanted to align both sides' understanding, i.e., StarKist was crazy, Bumble Bee was rational, and Lindberg wanted both to be rational.
Defendants raise the possibility that the preceding events depict rational, legitimate business activity typical of a private equity firm. (MTD 35.) They raised similar arguments at the hearing; specifically, the discussions and emails concerned legitimate "marketing intelligence" by the Lion entities about their market competitors. (ECF No. 1321, at 52.) In its prior order, the Court noted that the "the similarity, and corresponding equipoise between innocuous and conspiratorial inferences, is partially removed by the alleged agreement and tighter timeline during which the relevant communications occurred." (ECF No. 283, at 18.) The concern between plausibility and possibility, as discussed in Twombly and Iqbal, is "largely grounded in ensuring the burdens of often costly and time-consuming discovery are taken into account when a court considers a motion to dismiss." (Id. at 17 (citing Twombly, 550 U.S. at 559, 127 S.Ct. 1955).) Viewing the events of January to March 2012 as a whole, the DOJ investigation, and Twombly and Iqbal's guidance, leads the Court to the conclusion that Plaintiffs have produced sufficient factual matter that nudges their conspiracy allegations from possible to plausible. Accordingly, the Court finds there is sufficient factual matter to meet the first element of a § 1 violation and proceeds to the second element.
b. Intent to Harm or Restrain Trade or Commerce
There are two modes of analysis to determine whether an agreement between conspirators was lawful: per se and rule of reason. Rule of reason is the default mode "unless the challenged action falls into the category of `agreements or practices which because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use.'" Nw. Wholesale Stationers, Inc. v. Pac. Stationery & Printing Co., 472 U.S. 284, 289, 105 S.Ct. 2613, 86 L.Ed.2d 202 (1985) (quoting N. Pac. Ry. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 2 L.Ed.2d 545 (1958) )."The decision to apply the per se rule turns on `whether the practice facially appears to be one that would always or almost always tend to restrict competition and decrease output ... or instead one designed to increase economic efficiency and render markets more, rather than less, competitive.'" Id. at 289-90, 105 S.Ct. 2613 (alteration in original) (internal quotation marks omitted) (quoting Broad. Music, Inc. v. Columbia Broad. Sys., Inc., 441 U.S. 1, 19-20, 99 S.Ct. 1551 (1979) ).
"In analyzing the reasonableness of an agreement under § 1, the Supreme Court has distinguished between agreements made up and down a supply chain, such as between a manufacturer and
Here, Plaintiffs have alleged an agreement amongst the dominant market competitors in the packaged tuna industry to fix prices. (See Bashas Compl ¶ 1; ECF No. 283, at 21 (finding per se violation of Sherman Act for a related allegation concerning FAD-free tuna labels).) The Court finds that Plaintiffs have sufficiently alleged a per se Sherman Act violation.
c. Antitrust Injury
The third element required to bring an antitrust claim is that a plaintiff must have suffered an antitrust injury. See Glen Holly Entm't, Inc. v. Tektronix, Inc., 352 F.3d 367, 371 (9th Cir. 2003). Antitrust injury must be "loss or damage of `the type the antitrust laws were designed to prevent and that flows from that which makes defendants' acts unlawful.'" Cargill, Inc. v. Monfort of Colo., Inc., 479 U.S. 104, 113, 107 S.Ct. 484, 93 L.Ed.2d 427 (1986) (quoting Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977) ). There are "four requirements for antitrust injury: (1) unlawful conduct, (2) causing an injury to the plaintiff, (3) that flows from that which makes the conduct unlawful, and (4) that is of the type the antitrust laws were intended to prevent." Am. Ad Mgmt., Inc. v. Gen. Tel. Co. of Cal., 190 F.3d 1051, 1055 (9th Cir. 1999).
Here, Plaintiffs allege sufficient unlawful conduct as illustrated by the purported conspiracy to fix prices amongst market competitors. As previously discussed, this is a per se violation of the Sherman Act. They allege that they have been injured by increased prices, (Bashas Compl. ¶ 223-24, 324), which were the result of Defendants' anticompetitive acts, (id.).
Finally, with respect to the type of injury that antitrust laws were meant to protect, the Ninth Circuit has stated: "Antitrust injury requires the plaintiff to have suffered its injury in the market where competition is being restrained. Parties whose injuries, though flowing from that which makes the defendant's conduct unlawful, are experienced in another market do not suffer antitrust injury." Am. Ad Mgmt., 190 F.3d at 1057. Plaintiffs are business entities within the packaged tuna market because they purchase tuna directly from one or more of the MDL defendants. (Bashas Compl. ¶¶ 16-18.)
3. Direct Participation by Lion Capital and Big Catch
Finally, the Court turns to direct participation by Lion Capital and Big Catch. The Court agrees with Defendants
Further, the Complaint contains no factual matter concerning Big Catch's participation in the conspiracy, which is not surprising given its role as a holding company. Further, because Plaintiffs have not alleged sufficient facts to state a claim against Lion Capital, it does not matter that the Court has found that Big Catch is the alter ego of Lion Capital for personal jurisdiction purposes. Accordingly, the Court finds that Plaintiffs fail to state a claim with regard to Big Catch. Therefore, the Court
In sum, the Court finds Plaintiffs have alleged sufficient facts to plausibly state a claim for a violation of section 1 of the Sherman Act by Lion Americas. The Court
VI. Statute of Limitations
Finally, Defendants argue that a four-year limitations period applies and should limit any liability for more than four years prior to when the various causes of action accrue. (MTD 36 (citing 15 U.S.C. § 15b; and Hexcel Corp. v. Ineos Polymers, Inc., 681 F.3d 1055, 1059-60 (9th Cir. 2012) ).) They contend that Plaintiffs named the Lion entities as defendants on December 11, 2017 and, thus, Plaintiffs should be time-barred from asserting claims relating to conduct before December 11, 2013. (Id.) Defendants also contend that once the pre-December 11, 2013 conduct is removed, then Plaintiffs' allegations concerning Lion entities become practically nonexistent. (See id.)
Plaintiffs argue that the statute of limitations was tolled due to Defendants' fraudulent concealment. (Bashas Opp'n 43.) Plaintiffs go on to assert that they have alleged significant factual detail demonstrating affirmative acts by various defendants to conceal the conspiracy. (See id. (citing Bashas Compl. ¶¶ 183-86, 189-96,
Defendants respond by citing this Court's prior order stating "allegations of fraudulent concealment must satisfy Federal Rule of Civil Procedure 9(b)." (Reply 25 (quoting ECF No. 295, at 90).) They also cite Barker v. American Mobil Power Corp., 64 F.3d 1397, 1402 (9th Cir. 1995), for the proposition that, "[p]laintiffs may not generally use the fraudulent concealment by one defendant as a means to toll the statute of limitations against other defendants." (Reply 25.) Defendants would apply that rule here because Plaintiffs' allegations are generalized allegations concerning "defendants" and not specific to the Lion entities. (See id.)
"Antitrust actions under the Clayton Act are subject to a four year statute of limitations." In re TFT-LCD (Flat Panel) Antitrust Litig., 586 F.Supp.2d 1109, 1119 (N.D. Cal. 2008) (citing 15 U.S.C. § 15(b) (2002); Klehr v. A.O. Smith Corp., 521 U.S. 179, 189, 117 S.Ct. 1984, 138 L.Ed.2d 373 (1997) ). As Defendants point out, "allegations of fraudulent concealment must satisfy Federal Rule of Civil Procedure 9(b), which requires that fraud be pled with particularity. Specifically, a plaintiff `must plead with particularity the circumstances of the concealment and the facts supporting its due diligence.'" (ECF No. 295, at 90 (quoting Conmar Corp. v. Mitsui & Co. (U.S.A.), 858 F.2d 499, 502 (9th Cir. 1988) ).) Plaintiffs bear the burden of pleading and proving fraudulent concealment. See Conmar, 858 F.2d at 502. "To plead fraudulent concealment, the plaintiff must allege that: (1) the defendant took affirmative acts to mislead the plaintiff; (2) the plaintiff did not have `actual or constructive knowledge of the facts giving rise to [his] claim' as a result of the defendant's affirmative acts; and (3) the plaintiff acted diligently in trying to uncover the facts giving rise to his claim." Garrison v. Oracle Corp., 159 F.Supp.3d 1044, 1073 (N.D. Cal. 2016) (alteration in original) (quoting Hexcel, 681 F.3d at 1060).
Plaintiffs' allegations concerning fraudulent concealment meet Rule 9(b)'s particularity requirement with respect to Bumble Bee, StarKist, and Chicken of the Sea and their employees involved in the alleged conspiracy. The allegations include various affirmative acts, including telephonic conversations, emails from private accounts, and face-to-face meetings. (See Bashas Compl. ¶ 258.) Plaintiffs aver that they did not have knowledge of the facts giving rise to their claim and acted diligently in searching out the facts. (See id. ¶¶ 261-66.) The Court finds Plaintiffs have adequately alleged fraudulent conspiracy, at least as to some defendants but not the Lion Defendants.
This observation is only partially satisfactory because the Ninth Circuit has announced a general rule that fraudulent concealment may not be transferred or imputed from one defendant to another. See Barker, 64 F.3d at 1402. The district court in In re Animation Workers thoroughly and exhaustively discusses the issue of whether Barker's general rule should apply to antitrust conspiracy cases. See 123 F.Supp.3d at 1206-08. Particularly dispositive for the Animation Workers court was the Ninth Circuit's admonition in Beltz Travel Service, Inc. v. International
In re Animation Workers, 123 F.Supp.3d at 1207 (alterations in original). The Animation Workers court went on to find that Barker's application is "incompatible" with Beltz's holding and denied a motion to dismiss the plaintiffs' claims as time barred. Id. This Court agrees with the Animation Workers court and adopts its reasoning here. Barker did not involve an alleged conspiracy and does not address the unique legal intricacies of conspiracies. See id. at 1207-08. Thus, the Court finds that equitable tolling is appropriate given Plaintiffs' allegations concerning fraudulent concealment and the nature of the case as an antitrust conspiracy.
In light of the foregoing, the Court
Plaintiff's reading of Daimler is incorrect. The location of the events in question and the location of the harm is irrelevant for general jurisdiction. General jurisdiction arises where "the continuous corporate operations within a state [are] so substantial and of such a nature as to justify suit ... on causes of action arising from dealings entirely distinct from those activities." Daimler, 571 U.S. at 138, 134 S.Ct. 746 (alterations in original) (quoting Int'l Shoe, 326 U.S. at 318, 66 S.Ct. 154). Any argument regarding events and harms directly tied to this case are appropriately made with regard to specific jurisdiction, not general jurisdiction. See also BNSF Railway Co. v. Tyrrell, ___ U.S. ___, 137 S.Ct. 1549, 1558-59, 198 L.Ed.2d 36 (2017) ("The Fourteenth Amendment due process constraint described in Daimler ... applies to all state-court assertions of general jurisdiction over nonresident defendants; the constraint does not vary with the type of claim asserted or business enterprise sued.").
One final question remains: should the Court apply the place of organization and principal place of business paradigm to limited partnerships? Waldman did not distinguish between where the association was formed and its principal place of business and instead characterized the appropriate test as: where the defendants were "fairly regarded as at home" and answered the test as a singular location. 835 F.3d at 332. Likewise, the district court in McCullough limited its analysis to a singular location where the defendant limited liability company could fairly be regarded as at home and did not consider the principal place of business — place of organization dichotomy. See 268 F.Supp.3d at 1344-45. But, as the district court in Finn v. Great Plains Lending, LLC, No. 15-4658, 2016 WL 705242, at *3 n.3 (E.D. Pa. Feb. 23, 2016), points out, Daimler itself considered a subsidiary (Mercedes-Benz USA, LLC) that was a limited liability company and applied the corporation's paradigmatic locations to the LLC. See 571 U.S. at 121, 134 S.Ct. 746. The Court follows Daimler's two-part paradigmatic location approach for general jurisdiction and tests both the place of organization and the principal place of business.
Federal courts apply the law of the forum state to determine whether an entity is the alter ego of an individual. Hickey, 322 F.3d at 1128. California courts have relied on a variety of factors to determine unity of interest; for example, Minton did not explicitly hold or state in dicta that inadequate capitalization alone was sufficient. See 56 Cal. 2d at 579-80, 15 Cal.Rptr. 641, 364 P.2d 473. In 1957, in Automotriz Del Golfo de California S.A. De C. V. v. Resnick, the California Supreme Court cited with approval the rule that "inadequate financing, where such appears, is a factor, and an important factor, in determining whether to remove the insulation to stockholders normally created by the corporate method of operation." 47 Cal.2d 792, 797, 306 P.2d 1 (1957) (internal quotation marks omitted) (quoting Carlesimo v. Schwebel, 87 Cal.App.2d 482, 493, 197 P.2d 167 (Ct. App. 1948) ). California has not modified this rule in the time since. See Zoran Corp. v. Chen, 185 Cal.App.4th 799, 812, 110 Cal.Rptr.3d 597 (Ct. App. 2010) ("No single factor is determinative, and instead a court must examine all the circumstances to determine whether to apply the doctrine." (citations omitted) ); Sonora Diamond, 83 Cal. App. 4th at 539, 99 Cal.Rptr.2d 824 ("No one characteristic governs...."); Harris v. Curtis, 8 Cal.App.3d 837, 841, 87 Cal.Rptr. 614 (Ct. App. 1970) ("Appellants would have us declare that, per se, inadequate capitalization renders the shareholders, officers and directors liable for the obligations of the corporation. They cite no case so holding, and we know of none."); Associated Vendors, 210 Cal. App. 2d at 841-42, 26 Cal.Rptr. 806 ("Evidence of inadequate capitalization is, at best, merely a factor to be considered by the trial court in deciding whether or not to pierce the corporate veil.").
The rule in California appears to be: inadequate capitalization is an important factor and, where it appears, an important one. See Enter. Tech. Holdings, Inc. v. Noveon Sys., Inc., No. 05-CV-2236 W, 2008 WL 11338356, at *11 S.D. Cal. July 29, 2008. However, while the Court notes the divergence between Ninth Circuit and California law, it need not rest on either formulation of the law because Plaintiffs fail to demonstrate inadequate capitalization as a factor, ex ante.
Unocal, 248 F.3d at 929 (alterations in original) (quoting Bellomo v. Pa. Life Co., 488 F.Supp. 744 (S.D.N.Y. 1980) ). The district courts in this circuit that have considered similar situations have applied Unocal's reasoning to find that a parent holding company cannot be a subsidiary's agent. See Delacruz v. Serv. Corp. Int'l, No. 18-CV-154-LJO-EPG, 2018 WL 2287962, at *7 n.3 (E.D. Cal. May 18, 2018) (collecting cases). Thus, Plaintiffs must demonstrate an alter ego relationship between Big Catch and Bumble Bee and/or Lion Capital.