IN RE: VEHICLE CARRIER SERVICES ANTITRUST LITIGATION
Nos. 15-3353, 15-3354 and 15-3355
United States Court of Appeals, Third Circuit
January 18, 2017
As Amended January 25, 2017
71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88
Before: AMBRO, SHWARTZ, FUENTES, Circuit Judges.
Argued: November 17, 2016
CONCLUSION
It is hereby ORDERED that the Clerk of this Court transmit to the Clerk of the New York Court of Appeals this opinion as our certificate, together with a complete set of the briefs and the record filed in this Court. The parties shall bear equally any fees and costs that may be imposed by the New York Court of Appeals in connection with this certification.
End Payor Plaintiffs; Truck and Equipment Dealer Plaintiffs, Appellants in 15-3355
Direct Purchaser Plaintiffs Cargo Agents, Inc.; International Transport Management Corp.; and Manaco International Forwarders, Inc.; Appellants in 15-3353
Martens Cars of Washington, Inc.; Hudson Charleston Acquisition, LLC d/b/a Hudson Nissan; John O‘Neil Johnson Toyota, LLC; Hudson Gastonia Acquisition, LLC; HC Acquisition, LLC d/b/a Toyota of Bristol; Desert European Motorcars, Ltd; Hodges Imported Cars, Inc. d/b/a Hodges Subaru; Scotland Car Yard Enterprises d/b/a San Rafael Mitsubishi; Hartley Buick/GMC Truck, Inc. d/b/a Hartley Honda; Panama City Automotive
Kit Pierson, Christopher J. Cormier, David A. Young, Cohen Milstein Sellers & Toll PLLC, 1100 New York Avenue, N.W., Suite 500 West, Washington, D.C. 20005, Robert N. Kaplan, Richard J. Kilsheimer [ARGUED], Gregory K. Arenson, Joshua H. Saltzman, Kaplan Fox & Kilsheimer LLP, 850 Third Avenue, 14th Floor, New York, NY 10022, Steven A. Kanner, Michael J. Freed, Michael E. Moskovitz, Freed Kanner London & Millen LLC, 2201 Waukegan Road, Suite 130, Bannockburn, IL 60015, Lewis H. Goldfarb, McElroy, Deutsch, Mulvaney & Carpenter, LLP, 1300 Mount Kemble Avenue, P.O. Box 2075, Morristown, NJ 07962, Solomon B. Cera, C. Andrew Dirksen, Cera LLP, 595 Market Street, Suite 2300, San Francisco, CA 94105, Joseph C. Kohn, Douglas A. Abrahams, William E. Hoese, Kohn Swift & Graf, P.C., One South Broad Street, Suite 2100, Philadelphia, PA 19107, Lee Albert, Gregory B. Linkh, Glancy Prongay & Murray LLP, 122 East 42nd Street, Suite 2920, New York, NY 10168, Gregory P. Hansel, Randall B. Weill, Michael Kaplan, Jonathan G. Mermin, Michael S. Smith, Preti, Flaherty, Beliveau & Pachios LLP, One City Center, P.O. Box 9546, Portland, ME 04112, Eugene A. Spector, Jeffrey J. Corrigan, Jay S. Cohen, Rachel E. Kopp, Spector Roseman Kodroff & Willis, P.C., 1818 Market Street, Suite 2500, Philadelphia, PA 19103, W. Joseph Bruckner, Heidi M. Silton, Lockridge
Peter S. Pearlman, Cohn Lifland Pearlman Herrmann & Knopf LLP, Park 80 Plaza West-One, 250 Pehle Avenue, Suite 401, Saddle Brook, NJ 07663, Jonathon W. Cuneo, Joel Davidow, Katherine Van Dyck, Daniel Cohen, Cuneo Gilbert & LaDuca, LLP, 507 C Street N.E., Washington, D.C. 20002, Benjamin David Elga, Cuneo Gilbert & LaDuca, LLP, 16 Court Street, Suite 1012, Brooklyn, NY 11241, Don Barrett, David McMullan, Brian Herrington, Barrett Law Group, P.A., 404 Court Square, P.O. Box 927, Lexington, MS 39095, Shawn M. Raiter, Paul A. Sand, Larson King, LLP, 2800 Wells Fargo Place, 30 East Seventh Street, St. Paul, MN 55101, Dewitt Lovelace, Valerie Nettles, Lovelace & Associates, P.A., Suite 200, 12870 U.S. Highway 98 West, Miramar Beach, FL 32550, Gerard V. Mantese, David Hansma, Brendan Frey, Mantese Honigman Rossman & Williamson, P.C., 1361 East Big Beaver Road, Troy, MI 48083, Ben F. Pierce Gore, Pratt & Associates, 1871 The Alameda, Suite 425, San Jose, CA 95126, Charles Barrett, Charles Barrett, P.C., 6518 Highway 100, Suite 210, Nashville, TN 37205, Thomas P. Thrash, Thrash Law Firm, P.A., 1101 Garland Street, Little Rock, AR 72201, Armand Derfner, Derfner, Altman, & Wilborn, 575 King Street, Suite B, Charleston, SC 29403, Counsel for Appellants Martens Cars of Washington, Inc., Hudson Charleston Acquisition, LLC, d/b/a Hudson Nissan, John O‘Neill Johnson Toyota, LLC, Hudson Gastonia Acquisition, LLC, HC Acquisition, LLC, d/b/a Toyota of Bristol, Desert European Motorcard, Ltd, Hodges Imported Cars, Inc., d/b/a Hodges Subaru, Scotland Car Yard Enterprises d/b/a San Rafael Mitsubishi, Hartley Buick/GMC Truck, Inc., d/b/a Hartley Honda, Panama City Automotive Group, Inc., d/b/a John Lee Nissan and Empire Nissan of Santa Rosa
Warren T. Burns [ARGUED], Daniel H. Charest, Will Thompson, E. Lawrence Vincent, Burns Charest LLP, 500 North Akard, Suite 2810, Dallas, TX 75201, Hollis Salzman, Bernard Persky, Meegan Hollywood, Robins Kaplan LLP, 601 Lexington Avenue, Suite 3400, New York, NY 10022, Joseph W. Cotchett, Steven N. Williams, Cotchett, Pitre & McCarthy, LLP, San Francisco Airport Office Center, 840 Malcolm Road, Suite 200, Burlingame, CA 94010, James E. Cecchi, Carella, Byrne, Cecchi, Olstein, Brody & Agnello, P.C., 5 Becker Farm Road, Roseland, NJ 07068, Counsel for Appellant End Payor Plaintiffs
Eric R. Breslin, Duane Morris LLP, One Riverfront Plaza, 1037 Raymond Boulevard, Suite 1800, Newark, NJ 07102, Wayne A. Mack, J. Manly Parks, Andrew Sperl, Duane Morris LLP, 30 South 17th Street, Philadelphia, PA 19103, Counsel for Appellant Truck and Equipment Dealer Plaintiffs
John R. Fornaciari, Robert M. Disch, Baker & Hostetler LLP, 1050 Connecticut Avenue, N.W., Suite 1100, Washington, D.C. 20036, Counsel for Appellees Nippon
James L. Cooper, Anne P. Davis, Adam M. Pergament, Arnold & Porter LLP, 601 Massachusetts Avenue, N.W., Washington, D.C. 20001, Robert B. Yoshitomi, Eric C. Jeffrey, Nixon Peabody LLP, 799 New York Avenue, N.W., Washington, D.C. 20001, Counsel for Mitsui O.S.K. Lines, Ltd., Mitsui O.S.K. Bulk Shipping (U.S.A.), LLC, World Logistics Service (U.S.A.) Inc., and Nissan Motor Car Carrier Co., Ltd.
Mark W. Nelson [ARGUED], Jeremy Calsyn, Cleary Gottlieb Steen & Hamilton LLP, 2000 Pennsylvania Avenue, N.W., Washington, D.C. 20006, Counsel for Appellees Kawasaki Kisen Kaisha, Ltd. and “K” Line America, Inc.
Roberto A. Rivera-Soto [ARGUED], Jason A. Leckerman, Ballard Spahr LLP, 210 Lake Drive East, Suite 200, Cherry Hill, NJ 08002, Benjamin F. Holt, Hogan Lovells US LLP, 555 Thirteenth Street, N.W., Washington, D.C. 20004, Counsel for Appellees Wallenius Wilhelmsen Logistics AS, Wallenius Wilhelmsen Logistics America LLC, and EUKOR Car Carriers, Inc.
Steven F. Cherry, Brian C. Smith, Wilmer, Cutler, Pickering, Hale & Dorr LLP, 1875 Pennsylvania Avenue, N.W., Washington, D.C. 20006, Counsel for Appellees Compañía Sud Americana de Vapores, S.A. and CSAV Agency, LLC
Jeffrey F. Lawrence, Wayne Rohde, Cozen O‘Connor PC, 1200 Nineteenth Street, N.W., Washington, D.C. 20036, Melissa H. Maxman, Cohen & Gresser LLP, 1707 L Street, N.W., Suite 550, Washington, D.C. 20036, Counsel for Höegh Autoliners AS and Höegh Autoliners, Inc.
Renata B. Hesse, James J. Fredricks, Sean Sandoloski, United States Department of Justice, Antitrust Division, Room 3224, Washington, DC 20530, Counsel for Amicus Curiae United States of America
Tyler J. Wood, William H. Shakely, Joel F. Graham, Federal Maritime Commission, 800 North Capitol Street, NW, Washington, DC 20573, Counsel for Amicus Curiae Federal Maritime Commission
OPINION OF THE COURT
SHWARTZ, Circuit Judge.
Ocean common carriers transport cargo between foreign countries and the United States. In this case, Plaintiffs1 used the services of such carriers to transport vehicles. Some plaintiffs made arrangements with and received vehicles directly from the carriers (direct purchaser plaintiffs or “DPPs“), while other plaintiffs obtained the benefit of the carrier services by ultimately receiving vehicles transported from abroad (indirect purchaser plaintiffs or “IPPs“). Plaintiffs allege that Defendants, who are ocean common carriers, entered into agreements to fix prices and reduce capacity in violation of federal antitrust laws and various state laws. Because the ocean common carriers allegedly engaged in acts prohibited by the Shipping Act of 1984,
I2
Defendants transport vehicles from their country of origin to the country where they will be sold, including the United States, at which point the vehicles are delivered to dealers and individuals, such as Auto Dealer IPPs, Truck Center IPPs, and End-Payor IPPs. The vehicle manufacturers and DPPs purchase vehicle carrier services from Defendants, and the costs of these services are passed on to IPPs.
In September 2012, law enforcement raided Defendants’ offices in connection with antitrust investigations, and several Defendants thereafter pleaded guilty to antitrust violations based on price-fixing, allocating customers, and rigging bids for vehicle carrier services to and from the United States and elsewhere.
Plaintiffs filed complaints with jury demands alleging that Defendants entered into “secret” agreements in connection with Defendants’ carriage of vehicles. These agreements included: (1) price increase coordination agreements; (2) agreements not to compete, including coordination of responses to price reduction requests and allocation of customers and routes; and (3) agreements to restrict capacity by means of agreed-upon fleet reductions. Plaintiffs claim they suffered economic injuries as a result of these agreements and seek relief under the Clayton Act for violations of the Sherman Act. IPPs also assert state antitrust, consumer fraud, and unjust enrichment claims.
Defendants moved to dismiss the complaints pursuant to
While the motions to dismiss were pending, IPPs informed the District Court that they reached a putative class action settlement in principle with two groups of defendants, “K” Line and MOL Defendants (the “Settling Defendants“), but no motions to approve any settlement were filed. After the Court dismissed the complaints, IPPs filed a motion for reconsideration under
The District Court denied IPPs’ motion for reconsideration because it had determined that the Federal Maritime Commission (“FMC“) was the appropriate forum to hear the dispute3 and because IPPs “did not identif[y] an intervening change in the controlling law, alert[] the Court to the availability of new evidence that was not available when the Court issued its Opinion, or allege[] that the Opinion was the result of a clear error of fact or law or will result in manifest injustice.” Joint App. 62-63.
Plaintiffs appeal the order dismissing the complaints and IPPs also ap-
peal
II
To resolve this appeal, we must first examine the Shipping Act of 1984. Broadly, the Shipping Act establishes a uniform federal framework for regulating entities, such as ocean common carriers,5 and attempts to place U.S.-flag vessels on a level economic playing field with their foreign counterparts. The Act sets forth four specific purposes:
(1) establish a nondiscriminatory regulatory process for the common carriage of goods by water in the foreign commerce of the United States with a minimum of government intervention and regulatory costs;
(2) provide an efficient and economic transportation system in the ocean commerce of the United States that is, inso-
far as possible, in harmony with, and responsive to, international shipping practices;
(3) encourage the development of an economically sound and efficient liner fleet of vessels of the United States capable of meeting national security needs; and
(4) promote the growth and development of United States exports through competitive and efficient ocean transportation and by placing a greater reliance on the marketplace.
(“The primary purpose of the Shipping Act ... is to eliminate discriminatory treatment of shippers and carriers.“).
One way the Act sought to achieve these goals was to broaden the provisions of the prior law that provided very limited antitrust immunity.6 The House Committee on Merchant Marine and Fisheries, which reported on the bill, noted “[t]he perception ... that the threat of U.S. antitrust prosecution weighs much more heavily on U.S. operators than their foreign-flag competition” and recognized “the need to foster a regulatory environment in which U.S.-flag liner operators are not placed at a competitive disadvantage vis-a-vis their foreign-flag competitors.” Report of the House Committee on Merchant Marine and Fisheries, H.R. Rep. No. 98-53(I), 98th Cong., 1st Sess., at 9, 10.7 To address this disadvantage, the Shipping Act “exempt[ed] from the antitrust laws those agreements and activities subject to regulation by the” FMC. H.R. Rep. No. 98-53(I), at 3. Such agreements include those that:
(1) discuss, fix, or regulate transportation rates, including through rates, cargo
space accommodations, and other conditions of service;
(2) pool or apportion traffic, revenues, earnings, or losses;
(3) allot ports or regulate the number and character of voyages between ports;
(4) regulate the volume or character of cargo or passenger traffic to be carried;
(5) engage in an exclusive, preferential, or cooperative working arrangement between themselves or with a marine terminal operator;
(6) control, regulate, or prevent competition in international ocean transportation; or
(7) discuss and agree on any matter related to a service contract.
Id. § 40301.
The Act provides federal antitrust immunity for agreements filed with the FMC that address these topics.8 The FMC reviews each filed agreement and can seek information about it.
The Act also provides immunity from private antitrust suits based on conduct prohibited by the Act. For example, the Act prohibits conduct undertaken pursuant to agreements that are not effective or have been rejected. Specifically,
Operating contrary to agreement.—A person may not operate under an agreement required to be filed under section 40302 or 40305 of this title if—
(1) the agreement has not become effective under section 40304 of this title or has been rejected, disapproved, or canceled; or
(2) the operation is not in accordance with the terms of the agreement or any modifications to the agreement made by the Federal Maritime Commission.
Although the Act bars private federal antitrust lawsuits based on such prohibited conduct, it does provide an avenue for relief before the FMC. A & E Pac. Constr. Co. v. Saipan Stevedore Co., 888 F.2d 68, 71 (9th Cir. 1989). Either on a complaint filed by a private party,
Thus, the Shipping Act‘s text, scheme, and legislative history demonstrate Congress‘s intent to create a comprehensive, predictable federal framework to ensure efficient and nondiscriminatory international shipping practices.
III
Mindful of this framework, we will first address whether the Shipping Act
bars Plaintiffs’ Clayton Act claims. There is no dispute that operating under unfiled price fixing and/or market allocation agreements is prohibited under §§ 40301 and 40302 of the Shipping Act.
Plaintiffs assert, however, that the Shipping Act does not prohibit a carrier from operating under unfiled agreements to restrict capacity. For support, they point to a statement by an FMC Commissioner made at a trade symposium during which he said that agreements to restrict capacity “would be outside of the Shipping Act purview.” DPP Appellants’ Br. 24. Plaintiffs assert that we should treat this comment as the agency‘s interpretation of a statute it administers. This argument fails for several reasons. First, the Commissioner stated that “[m]y remarks today reflect my personal views and thoughts and are not offered as the official position of the United States or the Federal Maritime Commission.” Joint App. 39-40. Second, and relatedly, Chevron deference only applies to agency action, and by his own statements the Commissioner acknowledged that he was not speaking or acting for the agency. Thus, Chevron deference is not applicable. See Chevron, U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984); Br. for Fed. Mar. Comm‘n and United States as Amici Curiae 16 n.22.
Moreover, the Commissioner‘s statement is undermined by the Act itself. Sections 40301(a)(3) and (4) require parties to file agreements that restrict capacity. For example,
Plaintiffs allege they were injured by acts taken pursuant to these unfiled, and thus prohibited, agreements and seek damages under the Clayton Act. The Shipping Act, however, bars them from obtaining Clayton Act relief. Id.
Plaintiffs nonetheless argue that Clayton Act immunity set forth in
For all of these reasons, Plaintiffs cannot obtain Clayton Act relief, and the District Court correctly dismissed Plaintiffs’ Clayton Act claims.12
IV
We next examine whether the District Court correctly concluded that IPPs’ state law antitrust, consumer protection, and unjust enrichment claims are preempted.
A
The preemption doctrine is based on the Supremacy Clause, which provides that “the Laws of the United States ... shall be the supreme Law of the Land ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
B
1
We recognize that “all preemption cases ‘start with the assumption that the historic police powers of the States were not to be superseded by [a] [f]ederal [a]ct unless that was the clear and manifest purpose of Congress.‘” Sikkelee v. Precision Airmotive Corp., 822 F.3d 680, 687 (3d Cir. 2016) (quoting Wyeth v. Levine, 555 U.S. 555, 565 (2009)), cert. denied sub nom. AVCO Corp. v. Sikkelee, 137 S. Ct. 495 (2016).14 From this assumption, we presume claims based on laws embodying state police powers are not preempted. This “presumption against preemption,” however, does not apply here because our case concerns the regulation of international maritime commerce, an area uniquely in the federal domain. United States v. Locke, 529 U.S. 89, 108 (2000) (“The state laws now in question bear upon national and international maritime commerce, and in this area there is no beginning assumption that concurrent regulation by the State is a valid exercise of its police powers.“); see also Farina v. Nokia Inc., 625 F.3d 97, 116 (3d Cir. 2010) (“The presumption applies with particular force in fields within the police powers of the state, but does not apply where state regulation has traditionally been absent.” (citation omitted)).15
2
As there is no presumption against preemption in this case dealing with maritime conduct, we will determine whether the Shipping Act preempts IPPs’ state law claims. This requires us to consider Congress‘s intent. Mabey Bridge & Shore, Inc. v. Schoch, 666 F.3d 862, 868 (3d Cir. 2012); see also Wyeth, 555 U.S. at 565. To do so, we consider the language, structure, and purpose of the
As noted previously, one purpose of the Act is to “establish a nondiscriminatory regulatory process for the common carriage of goods by water in the foreign commerce of the United States with a minimum of government intervention and regulatory costs.”
To those ends, the Act granted ocean common carriers certain antitrust immunities. Section 40307(a) expressly immunizes agreements filed with the FMC from the federal criminal and civil antitrust laws, and
IPPs’ consumer protection and unjust enrichment claims are also preempted. While these state laws reflect the exercise of traditional police powers, applying them here would allow the States to impose rules in an area Congress has historically regulated: maritime commerce. Locke, 529 U.S. at 108. It would also thwart Congress‘s goal of ensuring uniform regulation of ocean com-
mon
To achieve these goals, Congress prohibited certain activities. Among other things, the Shipping Act makes certain unfair devices unlawful, such as operating under unfiled and ineffective agreements on specific matters, id.
In addition to prohibiting such acts, Congress created specific enforcement mechanisms for persons and entities injured by these illegal practices. It empowered the FMC to investigate and punish illegal conduct pursuant to a uniform regime. By granting the FMC this authority, Congress has put in place a regulator familiar with complex foreign commerce issues confronting ocean common carriers. This expertise enables the FMC to make informed decisions about whether conduct violates the Act and warrants punishment.17 See Farina, 625 F.3d at 126;
Moreover, Congress provided a means for private parties injured by the illegal acts of such carriers to seek relief ranging from double damages and attorneys’ fees to injunctions. Allowing state laws to impose different standards would upset this
Accordingly, we hold that the Shipping Act preempts IPPs’ state law consumer protection and unjust enrichment claims because allowing them to proceed would pose an obstacle to achieving Congress‘s objectives in passing the Act.
V
IPPs’ challenge to the District Court‘s order denying their request that it
reconsider the dismissal order also fails. A judgment may be altered under Rule 59(e) if the party seeking reconsideration shows at least one of the following: “(1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court granted the motion ...; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice.” Howard Hess Dental Labs. Inc. v. Dentsply Int‘l, Inc., 602 F.3d 237, 251 (3d Cir. 2010) (citation and internal quotation marks omitted). Similarly, Rule 60(b) provides, in relevant part, relief from a judgment for: (1) “mistake, inadvertence, surprise, or excusable neglect,”
IPPs asked the District Court to reconsider its dismissal order and “retain jurisdiction over claims asserted against K Line and MOL [Defendants] for the limited purpose” of approving class action settlements. Joint App. 60. However, IPPs did not submit a motion for preliminary and final approval of any settlement or a motion to stay the matter before the District Court dismissed Plaintiffs’ claims. Furthermore, IPPs did not identify an intervening change in the controlling law, present new evidence, allege that the District Court‘s opinion was the result of a
VI
For the foregoing reasons, we will affirm.
SHWARTZ
CIRCUIT JUDGE