IN RE: VEHICLE CARRIER SERVICES ANTITRUST LITIGATION Direct Purchaser Plaintiffs Cargo Agents, Inc.; International Transport Management Corp.; and Manaco International Forwarders, Inc.; Appellants 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 Group, Inc. d/b/a John Lee Nissan; Empire Nissan of Santa Rosa, LLC, Appellants End Payor Plaintiffs; Truck and Equipment Dealer Plaintiffs, Appellants
Argued: November 17, 2016
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT
OF NEW JERSEY (No. 2:13-cv-03306, MDL No. 2471) District
Judge: Hon. Esther Salas
Pierson Christopher J. Cormier David A. Young Cohen Milstein
Sellers & Toll PLLC, Robert N. Kaplan Richard J.
Kilsheimer [ARGUED] Gregory K. Arenson Joshua H. Saltzman
Kaplan Fox & Kilsheimer LLP, Steven A. Kanner, Michael J.
Freed Michael E. Moskovitz Freed Kanner London & Millen
LLC, Lewis H. Goldfarb McElroy, Deutsch, Mulvaney &
Carpenter, LLP, Solomon B. Cera C. Andrew Dirksen Cera LLP,
Joseph C. Kohn Douglas A. Abrahams William E. Hoese Kohn
Swift & Graf, P.C., Lee Albert Gregory B. Linkh Glancy
Prongay & Murray LLP, Gregory P. Hansel Randall B. Weill,
Michael Kaplan Jonathan G. Mermin Michael S. Smith Preti,
Flaherty, Beliveau & Pachios LLP, Eugene A. Spector
Jeffrey J. Corrigan Jay S. Cohen Rachel E. Kopp Spector
Roseman Kodroff & Willis, P.C., W. Joseph Bruckner Heidi
M. Silton Lockridge Grindal Nausen P.L.L.P., Vincent J.
Esades Heins Mills & Olson, P.L.C., Joseph J. DePalma
Katrina Carroll Steven J. Greenfogel Lite DePalma Greenberg,
LLC, Edward D. Greenberg David K. Monroe GKG Law, P.C.,
Benjamin Bianco Gregory A. Frank Frank LLP, Counsel for
Appellants Cargo Agents, Inc., International Transport
Management Corp., and Manaco International Forwarders, Inc.
S. Pearlman Cohn Lifland Pearlman Herrmann & Knopf LLP,
Jonathon W. Cuneo Joel Davidow Katherine Van Dyck Daniel
Cohen Cuneo Gilbert & LaDuca, LLP, Benjamin David Elga,
Cuneo Gilbert & LaDuca, LLP, Don Barrett David McMullan
Brian Herrington Barrett Law Group, P.A., Shawn M. Raiter
Paul A. Sand Larson King, LLP, Dewitt Lovelace Valerie
Nettles Lovelace & Associates, P.A., Gerard V. Mantese
David Hansma Brendan Frey Mantese Honigman Rossman &
Williamson, P.C., Ben F. Pierce Gore Pratt & Associates
Charles Barrett Charles Barrett, P.C. Thomas P. Thrash Thrash
Law Firm, P.A. Armand Derfner Derfner, Altman, & Wilborn
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.
T. Burns [ARGUED] Daniel H. Charest Will Thompson E. Lawrence
Vincent Burns Charest LLP, Hollis Salzman Bernard Persky
Meegan Hollywood Robins Kaplan LLP, Joseph W. Cotchett Steven
N. Williams Cotchett, Pitre & McCarthy, LLP, James E.
Cecchi Carella, Byrne, Cecchi, Olstein, Brody & Agnello,
P.C. Counsel for Appellant End Payor Plaintiffs.
R. Breslin Duane Morris LLP, Wayne A. Mack J. Manly Parks
Andrew Sperl Duane Morris LLP Counsel for Appellant Truck and
Equipment Dealer Plaintiffs.
R. Fornaciari Robert M. Disch Baker & Hostetler LLP
Counsel for Appellees Nippon Yusen Kabushiki Kaisha and NYK
Line North America Inc.
L. Cooper Anne P. Davis Adam M. Pergament Arnold & Porter
LLP, Robert B. Yoshitomi Eric C. Jeffrey Nixon Peabody LLP,
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.
W. Nelson [ARGUED] Jeremy Calsyn Cleary Gottlieb Steen &
Hamilton LLP Counsel for Appellees Kawasaki Kisen Kaisha,
Ltd. and “K” Line America, Inc.
Roberto A. Rivera-Soto [ARGUED] Jason A. Leckerman Ballard
Spahr LLP Benjamin F. Holt Hogan Lovells U.S. LLP Counsel for
Appellees Wallenius Wilhelmsen Logistics AS, Wallenius
Wilhelmsen Logistics America LLC, and EUKOR Car Carriers,
F. Cherry Brian C. Smith Wilmer, Cutler, Pickering, Hale
& Dorr LLP, Counsel for Appellees Compañía
Sud Americana de Vapores, S.A. and CSAV Agency, LLC.
Jeffrey F. Lawrence Wayne Rohde Cozen O'Connor PC Melissa
H. Maxman Cohen & Gresser LLP Counsel for Höegh
Autoliners AS and Höegh Autoliners, Inc.
B. Hesse James J. Fredericks Sean Sandolski United States
Department of Justice Counsel for Amicus Curiae United States
J. Wood William H. Shakely Joel F. Graham Federal Maritime
Commission Counsel for Amicus Curiae Federal Maritime
Before: AMBRO, SHWARTZ, FUENTES, Circuit Judges.
SHWARTZ, CIRCUIT JUDGE.
common carriers transport cargo between foreign countries and
the United States. In this case, Plaintiffs 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, 46
U.S.C. § 40101 et seq. (the "Shipping
Act" or the "Act"), and the Act both precludes
private plaintiffs from seeking relief under the federal
antitrust laws for such conduct and preempts the state law
claims under circumstances like those presented here, the
District Court correctly dismissed the complaints. We will
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.
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.
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.
moved to dismiss the complaints pursuant to Fed.R.Civ.P.
12(b)(6), claiming they are immune from antitrust liability
under the Shipping Act and that the state law claims are
preempted. The District Court agreed and dismissed the
complaints with prejudice.
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 Fed.R.Civ.P. 59(e)
and 60(b) and Local Civil Rule 7.1(i) alleging that, before
the cases were dismissed, they had notified the Court that
they agreed in principle to settle and requested that it
retain jurisdiction to approve a class settlement.
District Court denied IPPs' motion for reconsideration
because it had determined that the Federal Maritime
Commission ("FMC") was the appropriate forum to
hear the dispute 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.
appeal the order dismissing the complaints and IPPs also
appeal the order denying reconsideration.
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,  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, insofar
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 ...