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In re Packaged Seafood Products Antitrust Litigation

United States District Court, S.D. California

March 14, 2017

IN RE PACKAGED SEAFOOD PRODUCTS ANTITRUST LITIGATION

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' REMAINING MOTIONS TO DISMISS

          HON. JANIS L. SAMMARTINO United States District Judge.

         Presently before the Court are:

         (1) Defendant Thai Union Group PCL's Motion to Dismiss (“TUG MTD”) (ECF No. 205) all claims asserted against Thai Union in the: (a) Consolidated Amended Complaint of Direct Action Plaintiffs (“DAP Compl.”) (ECF No. 152); (b) Consolidated Class Complaint of Direct Purchaser Plaintiffs (“DPP Compl.”) (ECF No. 147); (c) Consolidated Class Action Complaint of Indirect Purchaser Commercial Food Preparers Class (“CFP Compl.”) (ECF No. 153); (d) Amended Complaint of Direct Action “Kroger” Plaintiffs (“Kroger Compl.”) (The Kroger Co. et al. v. Bumble Bee Foods LLC et al., 16-cv-51-JLS (MDD), ECF No. 19); (e) Amended Complaint of Direct Action Plaintiffs Meijer, Inc. and Meijer Distribution, Inc. (“Meijer Compl.”) (Meijer, Inc. et al. v. Bumble Bee Foods LLC, et al., 16-cv-398-JLS (MDD), ECF No. 11); (f) Amended Complaint of Direct Action Plaintiff Publix Super Markets, Inc. and Wakefern Food Corp. (“Publix Compl.”) (Publix Super Markets, Inc. et al. v. Bumble Bee Foods LLC et al., 16-cv-247-JLS (MDD), ECF No. 12); and (g) Direct Action Plaintiff Winn-Dixie Stores and Bi-Lo Holding, LLC's First Amended Complaint (“Winn-Dixie Compl.”) (ECF No. 151);

         (2) Defendant Dongwon Enterprise Co., Ltd.'s Motion to Dismiss (“Dongwon Enter. MTD”) (ECF No. 206) all claims against Dongwon Industries and Dongwon Enterprise in the: (a) CFP Complaint; (b) DPP Complaint; (c) Kroger Complaint; (d) Meijer Complaint; (e) Publix Complaint; (f) Wegmans Amended Complaint (“Wegmans Compl.”) (Wegmans Food Markets, Inc. v. Bumble Bee Foods, LLC et al., 16-cv-264-JLS (MDD), ECF No. 11); (g) Affiliated Foods First Amended Complaint and Demand for Jury Trial (“Affiliated Foods Compl.”) (ECF No. 152); and (h) Winn-Dixie Complaint;

         (3) Defendants StarKist Co.'s, Dongwon Enterprise Co., Ltd. 's, Bumble Bee Foods, LLC's, Tri-Union Seasfoods, LLC's, Thai Union Group PCL's, and Del Monte Foods Company's Joint Motion to Dismiss[1] (“Joint MTD”) (ECF No. 207) without further leave to amend the: (a) DPP Complaint; (b) CFP Complaint; (c) Consolidated Class Action Complaint of the Indirect Purchaser End Payer Plaintiffs (“EPP Compl.”) (ECF No. 149); (d) Affiliated Foods' Complaint; (e) Wegmans Complaint; (f) Meijer Complaint; (g) Kroger Complaint; (h) Publix Complaint; (i) Winn-Dixie Complaint; (j) Plaintiff W. Lee Flowers & Co., Inc.'s Complaint and Demand for Jury Trial (“Flowers Compl.”) (W. Lee Flowers & Co. v. Bumble Bee Foods, LLC, et al., 16-cv-1226-JLS (MDD));

         (4) Defendant Dongwon Industries Co., Ltd.'s Motion to Dismiss (“Dongwon Indus. MTD”) (ECF No. 220) the Wegmans Complaint;

         (5) DPPs' Omnibus Opposition to Motions to Dismiss (“DPP Opp'n”) (ECF No. 226) above labeled as: (a) Joint MTD regarding the (i) Twombly Brief, (ii) Standing Brief, and (iii) SoL Brief; and (b) TUG MTD;

         (6) CFPs' Memorandum of Law in Opposition to Defendants' Collective Motion to Dismiss Complaint (“CFP Opp'n”) (ECF No. 227) above labeled as the: (a) Joint MTD regarding the (i) Twombly Brief, (ii) Standing Brief, (iii) SoL Brief, and (iv) State Law Brief; and (b) TUG MTD;

         (7) Affiliated Foods Plaintiffs' Opposition to (“Affiliated Foods Opp'n”) (ECF No. 228) the above-labeled Motions to Dismiss: (a) Joint MTD regarding the (i) Twombly Brief, (ii) Standing Brief, and (iii) SoL Brief; (b) TUG MTD; and (c) Dongwon Enterprise MTD;

         (8) Certain Direct Action Plaintiffs' Consolidated Opposition to Defendants' Motions to Dismiss (“Certain DAPs Opp'n”) (ECF No. 229) above labeled as the: (a) TUG MTD; (b) Dongwon Enterprise MTD; (c) Joint MTD regarding the (i) Twombly Brief; (d) Dongwon Industries MTD;

         (9) Winn-Dixie Plaintiffs' Opposition (“Winn-Dixie Opp'n”) (ECF No. 230) to the: (a) Joint MTD regarding the (i) Twombly Brief, (ii) Standing Brief, and (iii) SoL Brief; and (b) TUG MTD;

         (10) EPPs' Memorandum of Points and Authorities in Opposition to Defendants' Joint Motions to Dismiss (“EPP Opp'n”) above labeled as the Joint MTD regarding the (i) Twombly Brief, (ii) Standing Brief, (iii) SoL Brief, and (iv) State Law Brief;

         (11) Reply Memorandum of Points and Authorities in Support of Motion to Dismiss Plaintiffs' Complaints Against Dongwon Industries Co., Ltd. and Dongwon Enterprise Co., Ltd. (“Dongwon Reply”) (ECF No. 233);

         (12) Defendant TUG PCL's Reply to Opposition to Motion to Dismiss (“TUG Reply”) (ECF No. 235);

         (13) Defendants' Reply Memorandum of Points and Authorities in Support of Joint Motion to Dismiss All Complaints (“Twombly Reply”) (ECF No. 236);

         (14) Reply Memorandum of Points and Authorities in Support of Defendants' Joint Motion to Dismiss Various Claims as Time Barred (“SoL Reply”) (ECF No. 237);

         (15) Reply Memorandum of Points and Authorities in Support of Defendants' Joint Motion to Dismiss EPPs' and CFPs' Consolidated Class Action Complaints (“State Law Reply”) (ECF No. 238);

         (16) Reply Memorandum of Points and Authorities in Support of Defendants' Joint Motion to Dismiss Plaintiffs' Complaints for Lack of Standing (“Standing Reply”) (ECF No. 239).

         BACKGROUND

         In 2015, dozens of actions were instituted in federal district courts across the nation seeking various forms of relief relying on the same factual predicate: an alleged antitrust conspiracy, in violation of the Sherman Act and state antitrust law, regarding packaged seafood products. See generally Transfer Order (ECF No. 1). On December 9, 2015 the United States Judicial Panel on Multidistrict Litigation centralized pretrial proceedings (“In re Packaged Seafoods”) to this Court in the Southern District of California. (Id. at 1-2 (“The vast majority of the related actions are already pending in this district, most before Judge Janis L. Sammartino, who has the related cases before her.”).)

         Several weeks later, the United States Government intervened in the action, noting that “[a] federal grand jury empanelled in the Northern District of California is investigating potential violations of the Sherman Act, 15 U.S.C. § 1, in the packaged seafood industry.” (U.S. Notice of Mot. to Intervene 1, ECF No. 34.) The Court subsequently held several status conferences, (ECF Nos. 43, 108), appointed interim lead counsel, and set the leadership structure for purposes of pretrial proceedings, (ECF No. 119). In so doing, the Court divided the Plaintiffs into four groups:

• Direct Action Plaintiffs (“DAPs”), who are direct purchasers proceeding against Defendants individually;
• Direct Purchaser Plaintiffs (“DPPs”), who are direct purchasers proceeding on behalf of a putative class;
• Indirect Purchaser Commercial Food Preparer Plaintiffs (“CFPs”), who are indirect purchasers proceeding on behalf of a putative class; and
• Indirect Purchaser End Payer Plaintiffs (“EPPs”), who are indirect purchasers proceeding on behalf of a putative class.

(Order Appointing Interim Lead Counsel 1-2, ECF No. 119.)

         Several months later, Plaintiffs, Defendants, and the United States entered into a joint stipulation regarding a limited stay of discovery, in effect until December 31, 2016, (Joint Stipulation re: Limited Stay of Discovery 1-3, ECF No. 130), which the Court approved, (ECF No. 137). Despite this limited stay, both Plaintiffs and Defendants agreed to the filing of amended complaints and motions to dismiss. (ECF Nos. 138, 142.) On November 21, 2016, Plaintiffs, Defendants, and the United States entered into a second joint stipulation regarding a limited stay of discovery, in effect for many factual matters until March 31, 2017, and in effect for all party depositions until September 30, 2017. (Joint Stipulation re: Second Limited Stay of Discovery 1-3, ECF No. 256.) The Court and the parties conferred at a November 29, 2016 Status Conference, (ECF Nos. 257, 262), and decided to bifurcate oral argument on the Motions to Dismiss according to the classification of “federal” versus “state” issues. The federal issues-which were the subject of the Court's first Order, (ECF No. 283)-encompassed (1) the sufficiency of all relevant Plaintiffs' allegations under the Sherman Act for monetary damages; (2) the sufficiency of all relevant Plaintiffs' allegations under the Sherman Act for injunctive relief; (3) all relevant Plaintiffs' standing to prosecute non-tuna claims; and (4) all statute-of-limitations issues related to the Sherman Act claims. The state-law issues-which were the subject of the subsequent oral argument, (Hr'g Tr., ECF No. 291), and are the subject of this corresponding Order-encompass (1) the sufficiency of relevant Plaintiffs' allegations of Defendants Dongwon's and TUG's (A) direct participation in or (B) vicarious liability via (i) alter ego or (ii) agency principles under the alleged conspiracy; (2) the legal permissibility of all relevant Plaintiffs' attempt to bring claims on behalf of a nationwide California class; (3) the sufficiency of all relevant Plaintiffs' allegations under the various state-law causes of action; (4) all relevant Plaintiffs' standing to sue under various state-law standards; and (5) all statute-of-limitations issues related to the various state-law causes of action.

         Six days prior to the scheduled hearing on the federal issues, the United States submitted a filing to “inform[] the Court that the first criminal case in the packaged-seafood investigation has been filed in the Northern District of California.” (U.S.' Status Report re Information Filed in N.D. Cal. 1, ECF No. 268.) Several weeks later, the United States informed the Court “that the second criminal case in the packaged-seafood investigation has been filed in the Northern District of California.” (U.S.' Status Report re Information Filed in N.D. Cal. 1, ECF No. 280.)

         The Court held oral argument concerning the federal issues on December 13, 2016, (Tr. of Mot. Hr'g, ECF No. 276), and then took the matters under submission. After considering all parties' arguments and the law, the Court issued its Order regarding the federal issues. (Order Granting in Part and Denying in Part Defs.' Joint Mot. to Dismiss (“First MTD Order”), ECF No. 283.) The Court has now heard oral argument concerning the remaining, state-law issues. (ECF No. 291.) After considering the parties arguments and the law, the Court rules as follows.

         LEGAL STANDARD

         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 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (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 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Nor does a complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Iqbal, 556 U.S. at 677 (citing Twombly, 550 U.S. at 557).

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible when the facts pled “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). That is not to say that the claim must be probable, but there must be “more than a sheer possibility that a defendant has acted unlawfully.” Id. Facts “‘merely consistent with' a defendant's liability” fall short of a plausible entitlement to relief. Id. (quoting Twombly, 550 U.S. at 557). Further, the Court need not accept as true “legal conclusions” contained in the complaint. Id. This review requires context-specific analysis involving the Court's “judicial experience and common sense.” Id. at 678 (citation omitted). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief.'” Id.

         ANALYSIS

         Regarding the state-law issues, Defendants effectively assert five overarching arguments: (1) all Plaintiffs fail to adequately plead that either Dongwon or TUG should be liable under the conspiracy either (A) directly or (B) because CotS or StarKist are (i) alter egos of or (ii) acted as agents of Dongwon or TUG; (2) EPPs' attempt to bring claims on behalf of a nationwide class under California law is legally impermissible under California choice-of-law analysis; (3) EPPs and CFPs fail to state plausible state law claims under various false advertising, consumer protection, and unjust enrichment laws; (4) EPPs and CFPs lack standing to pursue various state law claims; and (5) many of EPPs' and CFPs' state law claims are time-barred under relevant statutes of limitation. Analysis here follows the above outline, addressing in each corresponding section the various sub-arguments raised by the above overarching arguments.

         I. Allegations Regarding Dongwon's & TUG's Liability For the Conspiracy

         A. Direct Participation

         Defendants TUG and Dongwon (“Parent Defendants”) move to dismiss all Plaintiffs' Complaints for failure to state that either of the Parent Defendants directly participated in the alleged conspiracy. (TUG MTD 3-7, Dongwon Enter. MTD 6-7, Dongwon Indus. MTD 5-6.) The Court concludes that most Plaintiffs adequately plead that the Parent Defendants directly participated in the conspiracy.

         Many of Plaintiffs' shared allegations fail to state a claim for direct participation. Plaintiffs generally allege that TUG (1) manufactured canned tuna and knowingly sold it under the CotS brand under conspiracy-inflated prices, (see, e.g., Meijer Compl. ¶ 23); (2) shared a common objective with the other Defendants to realize investment-grade returns on its sales of tuna, (see, e.g., id. ¶ 59); (3) abandoned a purported merger with Defendant Bumble Bee in the wake of an antitrust investigation, (see, e.g., CAC ¶ 68; Meijer Compl. ¶¶ 70-71); (4) issued annual reports attributing profits to “more rational competition in the United States, ” (see, e.g., CAC ¶¶ 100-01; Meijer Compl. ¶ 47); and (5) has been a member of a Thai trade association that “partnered” with the Tuna Council (a “non-profit organization” whose mission statement includes dedication “to education about seafood safety, sustainability, and nutrition[, ]” (see, e.g., Meijer Compl. ¶ 61)) to plan a U.S. advertising campaign, (see, e.g., id. ¶ 62).

         As an initial matter, the first allegation that TUG knowingly sold its tuna through CotS under conspiracy-inflated prices is conclusory, and the Court need not accept it as true.[2] The remaining allegations, while more helpful to Plaintiffs' claims, can also be consistent with rational and legal market participation, and thus fail to state a plausible claim for relief. See Iqbal, 556 U.S. at 678 (“Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.'” (citation omitted)). For example, it is not surprising that TUG-a for-profit organization-shares an objective to maximize profits on its sales of tuna, and it may have suspended its plans to buy Bumble Bee with that goal in mind. And perhaps TUG meant what it said when it praised more rational competition in the United States and partnered with the Tuna Council to launch an advertising campaign to stimulate demand for tuna in the United States. These collective allegations do not plausibly suggest that TUG directly participated in any conspiracy.

         Nor do Plaintiffs' similar allegations against Dongwon fare any better. As above, Plaintiffs generally allege that Dongwon (1) manufactured canned tuna and knowingly sold it under the StarKist brand under conspiracy-inflated prices, (Meijer Compl. ¶ 16); and (2) shared a common objective with the other Defendants to realize investment-grade returns on its sales of tuna, (see, e.g., id. ¶ 59). These allegations fail for the same reasons discussed above.

         But Plaintiffs provide additional facts that plausibly demonstrate that the Parent Defendants directly conspired with their respective subsidiaries. For example, Plaintiffs allege that the Parent Defendants had (1) telephone conversations through their senior executives and sales personnel to announce collusive price increases, (see, e.g., Meijer Compl. ¶ 64); (2) a teleconference during which the Parent Defendants agreed that they would not launch a FAD-free canned tuna product in the United States, (id. ¶ 65); and (3) telephone and email conversations wherein their senior executives and sales personnel assured one another that they would not compete regarding the price of tuna sold to customers, (id. ¶ 66). (See also Certain DAPs Opp'n 38-39.) The Court previously found that the majority of Plaintiffs adequately alleged a tuna-specific conspiracy, (see First MTD Order 17-22), and each of these allegations, taken as true, demonstrates that the Parent Defendants directly participated in that conspiracy. See In re Animation Workers Antitrust Litig., 123 F.Supp.3d 1175, 1208 (N.D. Cal. 2015) (“[P]articipation by each conspirator in every detail in the execution of the conspiracy is unnecessary to establish liability, for each conspirator may be performing different tasks to bring about the desired result.” (quoting Beltz Travel Serv., Inc. v. Int'l Air Transp. Ass'n, 620 F.2d 1360, 1367 (9th Cir. 1980))).

         To be sure, some Plaintiffs generally refer to “Chicken of the Sea Defendants” and “StarKist Defendants, ” (see, e.g., Meijer Compl. ¶¶ 62-69), or “Chicken of the Sea” and “StarKist, ” (see, e.g., DAP Compl. ¶ 82), when reciting these allegations, which ostensibly include the respective Parent Defendants, (see, e.g., Meijer Compl. ¶¶ 20, 26; DAP Compl. ¶¶ 26, 32). And the Court agrees with Defendants that Plaintiffs' allegations against the Parent Defendants must comply with the Supreme Court's directive under Twombly and Iqbal to state a plausible claim for relief against each defendant. See Iqbal, 556 U.S. at 678 (explaining that a claim is facially plausible when the facts pled “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged” (emphasis added) (citation omitted)). But some level of group pleading is permissible, especially where, as here, the Court is able to discern that these groups, and their actions, include the Parent Defendants. See, e.g., In re TFT-LCD (Flat Panel) Antitrust Litig., 599 F.Supp.2d 1179, 1184 (N.D. Cal. 2009) (“The complaints allege that group or ‘crystal' meetings were attended by employees at three general levels of defendants' corporations, and contains details about the structure and content of these meetings, as well as the types of employees who attended the meetings.” (emphasis added).) Because the Court finds that these allegations are sufficient to demonstrate the Parent Defendants' involvement in the conspiracy, it would be a meaningless exercise to force these Plaintiffs to re-allege, for instance, that TUG, Dongwon, CotS, and StarKist were individually involved in these conspiratorial communications when the Court can already see that. Accordingly, the Court finds that most Plaintiffs have adequately pled the Parent Defendants' direct involvement in the conspiracy.[3]

         B. Alter Ego and Agency Theories

         The Parent Defendants also move to dismiss all Plaintiffs' Complaints for failure to state a plausible claim for liability under either (1) alter ego or (2) agency theories. (See TUG MTD 3-7, Dongwon Enter. MTD 7-15, Dongwon Indus. MTD 6-13.)

         (i)Failure to Plead an Alter Ego Theory

         “Ordinarily, a corporation is regarded as a legal entity, separate and distinct from its stockholders, officers and directors, with separate and distinct liabilities and obligations.” Sonora Diamond Corp. v. Superior Court, 83 Cal.App.4th 523, 538 (2000) (citation omitted). “A corporate identity may be disregarded-the ‘corporate veil' pierced-where an abuse of the corporate privilege justifies holding the equitable ownership of a corporation liable for the actions of the corporation.” Id. (citing Roman Catholic Archbishop v. Superior Court, 15 Cal.App.3d 405, 411 (1971)). California courts have stated that “[t]he purpose behind the alter ego doctrine is to prevent defendants who are the alter egos of a sham corporation from escaping personal liability for its debts.” Hennessey's Tavern, Inc. v. Am. Air Filter Co., 204 Cal.App.3d 1351, 1358 (citing Hiehle v. Torrance Millworks, Inc., 272 P.2d 780, 783-84 (1954)). There are two separate requirements to justify imposing alter ego liability:

First, that the corporation is not only influenced and governed by [the defendant], but that there is such a unity of interest and ownership that the individuality, or separateness, of the said [defendant] and corporation has ceased; second, that the facts are such that an adherence to the fiction of the separate existence of the corporation would, under the particular circumstances, sanction a fraud or promote injustice.

Firstmark Capital Corp. v. Hempel Fin. Corp., 859 F.2d 92, 94 (9th Cir. 1988) (emphasis removed) (citing Wood v. Elling Corp., 572 P.2d 755, 761-62 n.9 (1977)); see also Sonora Diamond Corp., 83 Cal.App.4th at 538.

         Nonexclusive “[f]actors that can be used to support the first element, unity of interest, include commingling of funds, failure to maintain minutes or adequate corporate records, identification of the equitable owners with the domination and control of the two entities, the use of the same office or business locations, the identical equitable ownership of the two entities, the use of a corporation as a mere shell, instrumentality or conduit for a single venture or the business of an individual, and the failure to adequately capitalize a corporation.” Pac. Mar. Freight, Inc. v. Foster, No. 10-CV-0578-BTM-BLM, 2010 WL 3339432, at *6 (S.D. Cal. Aug. 24, 2010) (citing Assoc. Vendors, Inc. v. Oakland Meat Co., 210 Cal.App. 2d 825, 838-40 (1962)). “The second element requires that an inequitable result occur by the recognition of the corporate form.” Sonora Diamond Corp., 83 Cal.App.4th at 539. “Alter ego is an extreme remedy, sparingly used.” Id. at 539. Courts look to “all the circumstances to determine whether the doctrine should be applied.” Id.

         (a) TUG and CotS

         Plaintiffs argue that the following allegations are sufficient to plausibly state a claim for alter ego liability against TUG:

         (1) Parent-Subsidiary Relationship Between TUG and CotS

         Plaintiffs generally allege that CotS is a wholly owned subsidiary of TUG. (Kroger Compl. ¶ 25; Publix Compl. ¶ 22; Meijer Compl. ¶ 21; DPP Compl. ¶¶ 17-18; EPP Compl. ¶ 58; Winn-Dixie Compl. ¶¶ 10-11; DAP Compl. ¶ 23; CFP Compl. ¶ 14; Wegman's Compl. ¶ 21.) Plaintiffs additionally allege that CotS enables TUG to be vertically integrated and to sell the tuna that TUG catches and processes under the CotS brand. (See, e.g., Kroger Compl. ¶ 27.)

         (2) Overlap of Officers and Employees

         Plaintiffs allege that TUG and CotS share a number of executives between the two companies. (Kroger Compl. ¶ 29; Publix Compl. ¶ 26; Meijer Compl. ¶ 25; DPP Compl. ¶ 19; Winn-Dixie Compl. ¶ 12; DAP Compl. ¶ 23; CFP Compl. ¶ 17; Wegman's Compl. ¶ 25.) In their oppositions, Plaintiffs focus in particular on Thiraphong Chansiri, who is alleged to have served as the TUG President/CEO, the President of a TUG subsidiary, Thai Union North America, Inc. (“TUNAI”), and a director of CotS. (See, e.g., Affiliated Foods Opp'n 21-22.) Plaintiffs additionally allege that TUG directs and controls CotS through CotS's President and CEO Shue Wing Chan, who is alleged to be a member of both the family that controls TUG and TUG's “Global Leadership Team.” (Kroger Compl. ¶ 29; Publix Compl. ¶ 26; Meijer Compl. ¶ 25; DPP Compl. ¶ 19; Winn-Dixie Compl. ¶ 12; Wegmans Compl. ¶ 25; CFP Compl. ¶ 17.)

         (3) Importance and Scale of TUG's U.S. Operations

         Several Plaintiffs allege that TUG presented (and still presents) a common global marketing image with its CotS subsidiary, particularly as part of TUG's “Global Tuna Business” and “US Ambient Operations”, which are controlled by TUG's board of directors. (Kroger Compl. ¶¶ 28-29; Publix Compl. ¶¶ 25-26; Meijer Compl. ¶¶ 24-25; DPP Compl. ¶ 20; Winn-Dixie Compl. ¶ 11; DAP Wegmans Compl. ¶¶ 24-25). Additionally, some Plaintiffs allege that TUG lists its U.S. corporate office locations at CotS offices or plants, (e.g., Meijer Compl. ¶ 24), and others allege that, through its subsidiary TUNAI, TUG shares physical office space with CotS at its offices in the United States, (see, e.g., DPP Compl. ¶ 18).

         (4) Analysis

         In sum, the Court is left with the following allegations to be considered together: (1) TUG is the parent company of its wholly owned subsidiary CotS; (2) TUG catches and cans the tuna that it sells through CotS (i.e., CotS is TUG's marketing conduit in the United States and elsewhere); (3) there is some overlap between TUG's and CotS's corporate governance; (4) TUG presents a common global marketing image with CotS and its public materials, including websites, emphasize its control over CotS; and (5) TUG shares physical office space with CotS. Based on these allegations, the Court concludes that Plaintiffs have plausibly alleged the unity of interest required to impose alter ego liability.

         In so concluding, the Court does not explicitly adopt-or reject-several other courts' reasoning that pleading two or three factors is sufficient to plausibly allege a unity of interest. See, e.g., Daewoo Elecs. Am. Inc. v. Opta Corp., No. C 13-1247 JSW, 2013 WL 3877596, at *5 (N.D. Cal. July 25, 2013). And the Court largely agrees with Defendants that these several allegations, standing alone, are not enough. But the Court finds that the allegations as a whole plausibly suggest a unity of interest between TUG and CotS. See Sonora Diamond Corp., 83 Cal.App.4th at 539 (“No one characteristic governs, but the courts must look at all the circumstances to determine whether the doctrine should be applied.”). Although Plaintiffs have not alleged a complete overlap between TUG's officers and CotS's board of directors, the credentials and leadership roles of some of the identified officers-particularly Thiraphong Chansiri and Shue Wing Chan-suggest that TUG has a high degree of influence in CotS's affairs. TUG's influence over CotS is slightly bolstered by its global marketing materials suggesting its unity and dominance over CotS, as well as by its public materials claiming that its U.S. corporate offices are also a CotS office or plant.[4] But most persuasive are Plaintiffs' allegations that TUG catches and cans the tuna that it thereafter sells under the label of its wholly-owned subsidiary CotS, since the “alter-ego test is satisfied” where “a parent corporation uses its subsidiary ‘as a marketing conduit' and attempts to shield itself from liability based on its subsidiaries' activities.” Doe v. Unocal Corp., 248 F.3d 915, 926 (9th Cir. 2001). These allegations do not prove a unity of interest. They may, however, open the doors to discovery.

         But not yet. Unity of interest is just the first step of the alter ego analysis. To succeed on an alter ego theory of liability, Plaintiffs must also allege that an inequitable result would follow if the corporate veil is not pierced. In their oppositions to Defendants' motions to dismiss, some Plaintiffs identify that an inequitable result is required in the alter ego analysis; however, they make no attempt to demonstrate how any Complaint alleges an inequitable result.[5] (See, e.g., DPP Opp'n 49.) Thus, Plaintiffs fail to plausibly allege that an inequitable result would follow if the corporate form is not disregarded. See Castellanos v. JPMorgan Chase & Co., No. 09-CV-00969-H, 2009 WL 1833981, at *11 (S.D. Cal. June 23, 2009) (granting motion to dismiss where plaintiff did not allege an inequitable result); Neilson v. Union Bank of Cal., N.A., 290 F.Supp.2d 1101, 1116 (C.D. Cal. 2003) (“Conclusory allegations of ‘alter ego' status are insufficient to state a claim. Rather, a plaintiff must allege specifically both of the elements of alter ego liability, as well as facts supporting each.”); cf. Hall-Magner Grp. v. Firsten, No. 11-cv-312, 2011 WL 5036027, at *5 (S.D. Cal. Oct. 24, 2011) (Sammartino, J.) (concluding, in the personal jurisdiction context, that the plaintiff “provided no evidence at all that failure to disregard the corporation would result in fraud or injustice”). Accordingly, the Court finds that Plaintiffs collectively fail to state an alter ego claim against TUG.[6]

         (b) Dongwon and StarKist

         Plaintiffs argue that the following allegations are sufficient to plausibly state a claim for alter ego liability against Dongwon:

         (1) Parent-Subsidiary Relationship Between Dongwon and StarKist

         Plaintiffs generally allege that StarKist is a wholly owned subsidiary of Dongwon. (See, e.g., Kroger Compl. ¶ 18; Publix Compl. ¶ 15; Meijer Compl. ¶ 14; Wegmans Compl. ¶ 14.) Dongwon Enterprise Co., in turn, is the holding company that owns Dongwon Industries. (See, e.g., Kroger Compl. ¶ 23.) Plaintiffs additionally allege that StarKist enables Dongwon to be vertically integrated and sells Dongwon's canned tuna under the StarKist brand. (See, e.g., id. ¶ 20.)

         (2) Overlap of Officers and Employees

         Several Plaintiffs also detail an overlap between Dongwon's and Starkist's corporate governance. For instance, in 2014 Andrew Choe became the President and CEO of StarKist, where he previously served as a Senior Vice President after first holding an executive position at Dongwon. (See, e.g., Kroger Compl. ¶ 23.) Additionally, Nam-Jung Kim, son of Dongwon Chairman Jae-Chul Kim, served as the COO of StarKist from 2012 to 2014, when he was promoted to Vice Chairman of StarKist, and currently serves on the board of directors for both StarKist and Dongwon. (Id.) Moreover, Nam-Jung Kim is alleged to have owned a controlling interest in Dongwon while serving as StarKist's COO and Vice Chairman. (Id.)[7]

         (3) Importance and Scale of StarKist's U.S. Operations

         Plaintiffs generally allege that Dongwon presents a common global marketing image with StarKist. According to Dongwon's website, “StarKist is an iconic tuna brand in the United States, and has been controlled by Dongwon Group since 2008, ” and, “each day, Dongwon casts its nets in oceans all around the world.” (See, e.g., Kroger Compl. ¶ 21.)

         (4) Analysis

         As with TUG and CotS, the Court finds that these allegations are sufficient to plead the unity of interest required for alter ego liability, with particular emphasis on Plaintiffs' allegations that StarKist is a marketing conduit for Dongwon's tuna.[8] Nevertheless, as with TUG and CotS, no Plaintiff alleges that an inequitable result will follow if the veil is not pierced. Accordingly, the Court finds that Plaintiffs fail to state an alter ego claim against Dongwon.

         (ii)Failure to Plead an Agency Theory

         To sufficiently plead an agency relationship between a parent company and its subsidiary, a plaintiff must allege facts that demonstrate the parent's “degree of control exerted over [the subsidiary] . . . is enough to reasonably deem [the subsidiary] an agent of [the parent] under traditional agency principles.” Sonora Diamond Corp., 83 Cal.App.4th at 541. Under traditional agency principles, “[c]ontrol is the key characteristic.” Id. “The parent's general executive control over the subsidiary is not enough; rather there must be a strong showing beyond simply facts evidencing ‘the broad oversight typically indicated by [the] common ownership and common directorship' present in a normal parent-subsidiary relationship.” Id. at 542 (citation omitted). “As a practical matter, the parent must be shown to have moved beyond the establishment of general policy and direction for the subsidiary and in effect taken over performance of the subsidiary's day-to-day operations in carrying out that policy.” Id. (citation omitted) (emphasis in original).

         (a) TUG and CotS

         To support their agency theory, Plaintiffs generally rely on the same facts alleged with regard to their alter ego theory. And at least one Plaintiff further alleges that TUG's statement regarding CotS's receipt of a subpoena in connection with the DOJ investigation, as well as its public statement announcing that it had suspended a planned public offering for Bumble Bee in light of the DOJ investigation, also supports an agency theory. (See, e.g., Affiliated Foods Opp'n at 22.)

         While largely sufficient to plausibly demonstrate a unity of interest for alter ego liability, these facts fail to support a plausible agency theory (i.e., these allegations do not demonstrate that TUG enforced a shared unity of interest by dominating and controlling CotS to achieve it). As discussed above, the overlap of TUG officers and CotS directors, as well as other CotS officers' relationship to the controlling family of TUG and membership in TUG's “Global Leadership Team, ” certainly suggest that TUG has a hand in directing CotS's business operations. However, at best these facts collectively demonstrate that TUG, as CotS's parent, exercises a measurable degree of influence over its subsidiary-an unremarkable conclusion. And under this view it comes as no surprise that TUG would issue a statement in connection with the DOJ investigation of its subsidiary, and that it might suspend its plans to purchase Bumble Bee pending the investigation. Thus, it is not clear how these additional facts support Plaintiffs' allegation that CotS is an agent of TUG.

         To be sure, some Plaintiffs further allege that “TUG dominated or controlled [CotS's] canned tuna business as reflected by, among other actions, TUG's domination or control of [CotS's] production, pricing, hiring, budgeting, capitalization, and/or marketing of canned tuna.” (See, e.g., Meijer Compl. ¶ 23.) But reciting the legal characteristics of agency is insufficient. And simply listing those aspects of CotS's business that TUG dominates or controls is no better.[9] Notably missing are any facts showing how TUG “dominates or controls” these aspects of CotS's business. Accordingly, these allegations do not plausibly suggest that TUG has “moved beyond the establishment of general policy and direction for [CotS] and in effect taken over performance of the subsidiary's day-to-day operations in carrying out that policy.” Sonora Diamond Corp., 83 Cal.App.4th at 542 (emphasis in original).

         That is why Plaintiffs' reliance on Axon Solutions, Inc. v. San Diego Data Processing Corp., No. 09 CV 2543 JM RBB, 2010 WL 1797028 (S.D. Cal. May 4, 2010), is misplaced. There, the court found that the plaintiff adequately pled an agency relationship based on factual allegations demonstrating control:

The City's audit committee determined that the City needed to upgrade its computer systems. The Mayor outlined a plan for doing so, and the City Council approved the plan. The City then directed SDDPC to issue a request for proposals, which Axon answered. A committee of nine City representatives and four SDDPC representatives selected Axon's bid. Then SDDPC entered the MSA agreement with Axon. Per these allegations, SDDPC could legitimately be described as “nothing more than an incorporated department of the” City that manages information technology services for the City. Id. The City, and its elected leaders, were the decision-makers; SDDPC merely followed the City's directions. Therefore, Axon's agency allegations are sufficient to survive the City's motion to dismiss.

Id. at *2; see also In re Hydroxycut Mktg. & Sales Practices Litig., 810 F.Supp.2d 1100, 1119-21 (S.D. Cal. 2011) (finding, in the personal jurisdiction context, a plausible allegation of agency liability where the plaintiffs provided substantial factual allegations to support their claim). Here, in contrast, Plaintiffs have merely set the chess board with CotS's pieces. But they have not demonstrated that TUG's hand directs the game.

         (b) Dongwon and StarKist

         To support their agency theory, Plaintiffs rely on the same facts alleged with regard to their alter ego theory.[10] And as discussed above, Plaintiffs' allegations against Dongwon are measurably weaker when compared to those alleged against TUG. Accordingly, the Court applies the same agency analysis with respect to TUG and CotS and finds that Plaintiffs fail to state a plausible agency claim against Dongwon.

         C. Conclusion

         For the foregoing reasons, the Court DENIES the Parent Defendants' Motions to Dismiss as to direct involvement in the conspiracy and GRANTS the Parent Defendants' Motions to Dismiss as to alter ego and agency theories of liability.

         II. The Proposed Nationwide California Class

         The EPPs seek to bring claims under Section 16720 of the California Business and Professions Code (the “Cartwright Act”) and Section 17200 et seq. of the California Business and Professions Code (the “UCL”) on behalf of a proposed nationwide class. (EPP Compl. ¶¶ 173-87.) Defendants move to dismiss these proposed nationwide class claims for failure to satisfy California's choice-of-law analysis under Mazza v. Am. Honda Motor Co., 666 F.3d 581 (9th Cir. 2012). (State Law Br. 18-23.) However, before examining California choice-of-law analysis, the Court first addresses EPPs' threshold contention that “such a decision is premature as courts routinely defer such decisions until after plaintiffs have had an adequate opportunity to develop the factual record.” (EPP Opp'n 50.)

         A. Whether Choice-of-Law Analysis Is Appropriate on a Motion to Dismiss

         EPPs cite several cases in support of delaying until the class certification stage any decision regarding the proposed nationwide class, all focused largely on the fact that discovery regarding class certification is especially fact intensive. (EPP Opp'n 50-51.) Defendants offer competing authority holding that dismissing nationwide class claims on a motion to dismiss is appropriate, especially when discovery will not substantially inform the choice-of-law analysis. (State Law Reply 27-29; see State Law Br. 18-19.) The Court agrees with Defendants.

         Czuchaj v. Conair Corp.-one of EPPs' cited cases-nicely describes “whether a choice-of-law analysis can be properly conducted at the motion to dismiss stage, ” noting that “it depends on the individual case.” No. 13-cv-1901-BEN (RBB), 2014 WL 1664235, *9 (S.D. Cal. April 18, 2014). As long as a court has sufficient information to thoroughly analyze the choice-of-law issue, see id.; In re Graphics Processing Units Antitrust Litig., 527 F.Supp.2d 1011, 1028 (N.D. Cal. 2007), and discovery will not likely affect the analysis, see Frezza v. Google Inc., No. 5:12-cv-00237-RMW, 2013 WL 1736788, *5-6 (N.D. Cal. April 22, 2013), it is appropriate for a Court to undertake choice-of-law analysis at the motion to dismiss stage.

         In the present case, the Court concludes that it has adequate information to consider choice-of-law analysis within the context of these Motions to Dismiss. Plaintiffs are here seeking to certify a nationwide California class based on the same factual conduct underlying the alleged Sherman Act violations, (EPP Compl. ¶¶ 174, 179), and discovery will likely not affect the legal analysis implicated by the circumstances of this particular case. Accordingly, the Court conducts choice-of-law analysis.

         B. Choice-of-Law Analysis

         “California law may only be used on a classwide basis if ‘the interests of other states are not found to outweigh California's interest in having its law applied.'” Mazza, 666 F.3d at 590 (quoting Wash. Mut. Bank, FA v. Superior Court, 15 P.3d 1071, 1082 (2001)). To guide such a determination, California choice-of-law analysis requires a three-step test to determine which state's laws should apply. Wershba v. Apple Comput., Inc., 91 Cal.App.4th 224, 241-42 (2001).

First, the court determines whether the relevant law of each of the potentially affected jurisdictions with regard to the particular issue in question is the same or different.
Second, if there is a difference, the court examines each jurisdiction's interest in the application of its own law under the circumstances of the particular case to determine whether a true conflict exists.
Third, if the court finds that there is a true conflict, it carefully evaluates and compares the nature and strength of the interest of each jurisdiction in the application of its own law to determine which state's interest would be more impaired if its policy were subordinated to the policy of the other state, and then ultimately applies the law of the state whose interest would be more impaired if its law were not applied.

Mazza, 666 F.3d at 590 (quoting McCann v. Foster Wheeler LLC, 225 P.3d 516, 527 (Cal. 2010)).

         (i) Conflict of Laws

         “The fact that two or more states are involved does not itself indicate that there is a conflict of law problem.” Wash. Mut. Bank, 15 P.3d at 1080. “A problem only arises if differences in state law are material, that is, if they make a difference in this litigation.” Mazza, 666 F.3d at 590 (citing Wash. Mut. Bank, 15 P.3d at 1080-81). To analyze materiality in the present case requires a cursory discussion of federal antitrust law as it applies to indirect purchasers.

         In 1977 the Supreme Court issued its opinion in Illinois Brick Co. v. Illinois, holding that indirect purchasers of goods or services are barred from recovering monetary damages for federal antitrust injuries. 431 U.S. 720, 736, 746-48 (1977). Subsequently, many state laws were either passed or judicially interpreted to permit indirect-purchaser recovery for state antitrust violations, and the Supreme Court held that such state laws are not federally preempted by Illinois Brick. California v. ARC Am. Corp., 490 U.S. 93, 105-06 (1999). The result is that some states, like California, permit indirect-purchaser recovery. E.g., Cal. Bus. & Prof. Code § 16720. Others do not. E.g., Del. Code Ann. tit. 6, §§ 2103, 2113.

         In the present case, Plaintiffs assert two California-law claims on behalf of a nationwide class. To make such claims available nationwide would necessarily extend California's indirect purchaser recovery to states which have not enacted legislation allowing for the same. Because this is a threshold issue governing whether EPPs in certain states could bring monetary antitrust claims at all, EPPs proposed nationwide class allegations create a clear, material conflict of laws.

         (ii)Interests of Foreign Jurisdictions

         It is a principle of federalism that “each State may make its own reasoned judgment about what conduct is permitted or proscribed within its borders.” State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 422 (2003). “[E]very state has an interest in having its law applied to its resident claimants.” Mazza, 666 F.3d at 592-93 (citing Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1187 (9th Cir.), opinion amended on denial of reh'g, 273 F.3d 1266 (9th Cir. 2001)). California law also acknowledges that “a jurisdiction ordinarily has ‘the predominant interest' in regulating conduct that occurs within its borders . . . .” McCann, 225 P.3d at 534 (citations omitted).

         In the present case, it is clear that just as many states have enacted post-Illinois Brick legislation permitting indirect purchaser suits, so also have many states refused to do so. E.g., Herbert Hovenkamp, Federal Antitrust Policy: The Law of Competition and Its Practice § 20.8, 1007 (5th ed. 2016) [hereinafter Hovenkamp, Antitrust] (“[A]bout half of the states have adopted indirect purchaser repealers, either by legislation or by judicial rule.”). Indeed, in Illinois Brick itself the Supreme Court struggled with the policies underlying its decision. See ARC Am. Corp., 490 U.S. at 103 (“It is one thing to consider the congressional policies identified in Illinois Brick and Hanover Shoe in defining what sort of recovery federal antitrust law authorizes; it is something altogether different, and in our view inappropriate, to consider them as defining what federal law allows States to do under their own antitrust law.”). And so too have states, post-Illinois Brick, struggled in deciding whether to extend monetary recovery to indirect purchasers. See, e.g., Bunker's Glass Co. v. Pilkington plc, 47 P.3d 1119, 1125 (Ariz.Ct.App. 2002) (exhaustively considering Illinois Brick, Arizona statutory text, legislative history, public policy, and history in determining whether statute provided monetary damages for indirect purchasers), as corrected, (June 28, 2002), aff'd, 75 P.3d 99 (Ariz. 2003). It is therefore clear that foreign jurisdictions have strong interests in seeing their particular legislative decisions regarding Illinois Brick honored.

         (iii) Which State Interest Is Most Impaired

         As an initial matter, both California courts and the Ninth Circuit have held that “the place of the wrong” has the predominant interest in regulating the conduct at issue. Hernandez v. Burger, 102 Cal.App.3d 795, 801-02 (1980), cited with approval by Abogados v. AT & T, Inc., 223 F.3d 932, 935 (9th Cir. 2000). The “place of the wrong” is the state where the last event necessary to make the actor liable occurred. Mazza, 666 F.3d at 593 (citing Zinn v. Ex-Cell-O Corp., 306 P.2d 1017, 1032 n.6 (Cal. Dist. Ct. App. 1957) (concluding in a fraud case that the place of the wrong was the state where the misrepresentations were communicated to the plaintiffs, not the state where the intention to misrepresent was formed or where the misrepresented acts took place)). “The test recognizes the importance of our most basic concepts of federalism, emphasizing . . . ‘the appropriate scope of conflicting state policies, ' not evaluating their underlying wisdom.” Mazza, 666 F.3d at 593 (citing McCann, 225 P.3d at 534).

         In the present case, EPPs' purported nationwide class will necessarily encompass individuals who were only harmed by purchasing the allegedly cost-inflated products somewhere other than California. Thus, for those class members the last event necessary to make the actor liable will have occurred in states other than California. Of course, this alone cannot destroy a plaintiff's purported nationwide-class claims, otherwise Mazza would almost always act as a bar to a plaintiff choosing California law over that of another state. However, the Court here concludes that in states without legislation or interpretation permitting indirect-purchaser recovery such choices evince a policy judgment by those states that should not be cast aside. See, e.g., In re Graphics Processing Units Antitrust Litig. (“GPU”), 527 F.Supp.2d 1011, 1028 (N.D. Cal. 2007) (dismissing plaintiffs' Illinois Brick-circumventing California-law claims and noting that “[i]t is hard to see why the laws of other states should be tossed overboard and their residents remitted to California law for transactions that, for individual consumers, are local in nature”). And, “[c]onversely, California's interest in applying its law to residents of foreign states is attenuated.” Mazza, 666 F.3d at 594.[11]

         Given the foregoing, the Court GRANTS Defendants' motion to dismiss EPPs' purported nationwide class claims.

         III. Twombly/Iqbal and Failure to Adequately Plead State Law Claims

         Defendants move to dismiss the CFP and EPP Complaints as insufficiently pled under various states' (A) antitrust laws, (State Law Br. 2-5); (B) consumer protection laws, (id. at 5-14); and (C) variations on the common-law doctrine of unjust enrichment, (id. at 14-18). The Court addresses each type of law in turn, analyzing the sufficiency of Plaintiffs' pleadings on a state-by-state basis.

         A. State Antitrust Laws

         Defendants assert that EPPs may not bring antitrust claims under the Arkansas, Illinois, and Missouri antitrust laws, (i)-(iii), and that CFPs' and EPPs' Oregon and Rhode Island antitrust claims must be limited in time, (iv)-(v). (State Law Br. 2.) The Court address each state in turn.

         (i)Arkansas

         Defendants argue that “[o]nly the Arkansas Attorney General may bring suit on behalf of indirect purchasers under Arkansas's state antitrust statute[, ]” and that therefore EPPs' claims on behalf of a putative indirect purchaser class are not permitted. EPPs argue that the doctrine of Erie Railroad v. Tompkins, 304 U.S. 64 (1938), and its progeny- namely Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., 559 U.S. 393 (2010)-permit class actions like those in the present case because the Arkansas statutory limitation is merely procedural, rather than substantive. The Court agrees with Defendants.

         Shady Grove concerned a putative New York class seeking to maintain a class action under a statute that permitted class adjudication generally, but barred from class treatment the specific types of recovery the Shady Grove Plaintiffs sought. Ultimately, the Shady Grove plurality decided the case prior to reaching Erie analysis, holding that Federal Rule of Civil Procedure 23 (governing class actions) and the relevant New York law were directly in conflict, and thus the Federal Rule controlled. By contrast, in the present case Arkansas flatly outlaws indirect-purchaser antitrust claims ab initio unless asserted by a particular third party, the State Attorney General. In other words, Federal Rule of Civil Procedure 23 does not conflict with the Arkansas statute at all-no Plaintiff except for the State Attorney General may validly bring a class action claim, and thus Rule 23 may not be triggered unless that particular circumstance is met. See Shady Grove, 559 U.S. at 399 (“There is no reason, in any event, to read Rule 23 as addressing only whether claims made eligible for class treatment by some other law should be certified as class actions ..... Courts do not maintain actions; litigants do. The discretion suggested by Rule 23's ‘may' is discretion residing in the plaintiff: He may bring his claim in a class action if he wishes.” (second emphasis original, all other emphases added)).[12]

         Accordingly, the inquiry here is different than in Shady Grove, and the Court must consider whether the Arkansas law is procedural or substantive in nature. See Shady Grove, 559 U.S. at 417-18; Hanna v. Plumer, 380 U.S. 460, 464 (1965). However, the analysis from the preceding paragraph also answers this second question-Arkansas's law is inherently substantive in nature. Under Arkansas antitrust law, indirect purchasers have no individual claim, no class claim; no claim pursuant to their discretion, period. The Arkansas legislature has made the determination that only one party, in her official discretion as State Attorney General, may seek relief for harms indirect purchasers may have suffered.[13] Accordingly, the Court concludes that the Arkansas rule, for purposes of Erie-doctrine application, is one of substance rather than procedure.

         EPPs additionally argue, even if the Arkansas rule is considered to be substantive, “Arkansas' general prohibition against monopolies, etc. is cumulative, [and] allows for a private action by anyone . . . including an action for treble damages . . . for price fixing.” (EPP Opp'n 58.) Defendants contend that Arkansas' statutory price-fixing provisions appear in a distinct subchapter that only permits suits by the Attorney General, and that therefore EPPs' argument fails. (State Law Reply 2, n.3.) Defendants are correct. Compare Ark. Code Ann. § 4-75-211 (located in “Subchapter 2-Unfair Practices Act” and providing “Civil remedy”), with § 4-75-315 (located in “Subchapter 3-Monopolies Generally” and providing for “Civil actions and settlements by the Attorney General” as supplementary “to the other remedies provided in this subchapter” (emphasis added)). Accordingly, the Court concludes that Arkansas does not permit civil suits by indirect purchasers and therefore DISMISSES Plaintiffs' Arkansas antitrust claims. In re Cast Iron Soil Pipe and Fittings Antitrust Litig. (“Cast Iron”), No. 1:14-MD-2508, 2015 WL 5166014, at *22 (E.D. Tenn. June 24, 2015) (“Thus, as this subsection of the [Arkansas antitrust] statute does not provide for a private individual to bring an action and only permits actions by the Attorney General, the Indirect Purchasers' claim must be DISMISSED.” (boldface and capitalization original)).

         (ii)Illinois

         Defendants argue that Illinois's “antitrust statute expressly prohibits indirect purchasers from bringing class actions and reserves that right for Illinois's Attorney General.” (State Law Br. 3.) EPPs assert that the same Erie- and Shady Grove-based argument regarding Arkansas's statute applies to the Illinois statute. Accordingly, the same result adheres-the Court concludes that Illinois does not permit civil suits by indirect purchasers and therefore DISMISSES Plaintiffs' Illinois antitrust claims.

         (iii) Missouri

         Defendants argue that “EPPs frame their antitrust claim as a violation of the Missouri Merchandising Practices Act [(“MMPA”)], Missouri's consumer protection statute.” (State Law Br. 4.) Defendants' definitional sleight-of-hand aside, this means that EPPs assert a claim under the MMPA. Accordingly, the Court addresses Defendants' arguments under Part III.B (dealing with state consumer protection laws).

         (iv) Oregon

         Defendants argue that, although Oregon now permits antitrust recovery pursuant to recently passed Illinois Brick-repealer legislation, such legislation was prospective in nature and therefore Plaintiffs' claims for damages “should be dismissed to the extent that they seek recovery for alleged overcharges pre-dating 2010 . . . .” (State Law Br. 4-5.) CFPs argue, without a single citation, that in Oregon “[a]n action filed after 2009 can claim damages for violations that predate the filing.” (CFP Opp'n 23-24.) EPPs argue the same, noting that Defendants-cited Cast Iron “tacitly allowed claims from Oregon indirect purchasers as far back as January 1, 2006 to stand[, ]” and inferentially arguing that Defendants-cited In re Niaspan Antitrust Litig. (“Niaspan”), 42 F.Supp.3d 735 (E.D. Pa. 2014), relied on flawed analysis. (EPP Opp'n 59.)

         Plaintiffs are correct that Cast Iron tacitly allowed pre-repealer claims to proceed; however, as Defendants point out, the Court did not even address the substance of the Oregon claims because no Defendant “raised specific arguments for dismissal” regarding Oregon. 2015 WL 5166014, at *35 n.11. By contrast, Niaspan directly addressed Oregon's repealer statute, finding that the case of Strizver v. Wilsey, 150 P.3d 10, 12 (Or. Ct. App. 2006), conclusively establishes that Oregon's repealer statute applies only prospectively. Niaspan, 42 F.Supp.3d at 759. However, the Niaspan Court in part relied on Striver because “[t]he [Niaspan] end-payer plaintiffs . . . cited no [contrary] evidence.” Id. Contrastingly, in the present case EPPs directly address Striver and argue that it establishes that Oregon's repealer statute should apply retroactively. (EPP Opp'n 59.) The Court agrees with EPPs.

         Striver comprehensively sets forth the manner in which courts should analyze whether an Oregon statute applies retroactively or prospectively-“like all other matters of statutory construction, [it is] an exercise in discerning the legislature's intent.” Striver, 150 P.3d at 12. Specifically, “in the absence of an express retroactivity clause, ” grammatical or legislative-history indicators, or dispositive maxims of statutory construction, courts are “most often . . . left to examine whether a provision is ‘remedial' versus ‘substantive' in nature.” Id ...


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