No. 21-1218
`
`
`
`In the Supreme Court of the United States
`__________
`TYLER AYRES, ET AL.,
`Petitioners,
`
`
`
`
`
`v.
`INDIRECT PURCHASER PLAINTIFFS, ET AL.,
`Respondents.
`
`__________
`ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
`STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
`__________
`BRIEF IN OPPOSITION
`OF DEFENDANT-RESPONDENTS
`__________
`Christopher M. Curran
`Linda T. Coberly
`Dana E. Foster
` Counsel of Record
`Matthew N. Frutig
`Kevin B. Goldstein
`WHITE & CASE LLP
`WINSTON & STRAWN LLP
`701 Thirteenth Street NW
`35 W. Wacker Drive
`Washington, DC 20005
`Chicago, IL 60601
`(312) 558-5600
`David L. Yohai
`lcoberly@winston.com
`David Yolkut
`WEIL GOTSHAL & MANGES
`Andrew E. Tauber
`WINSTON & STRAWN LLP
`LLP
`767 Fifth Avenue
`1901 L Street NW
`New York, NY 10153
`Washington, DC 20036
`Zachary D. Tripp
`Jeffrey L. Kessler
`WEIL GOTSHAL & MANGES
`Eva W. Cole
`LLP
`WINSTON & STRAWN LLP
`2001 M Street NW
`200 Park Avenue
`Washington, DC 20036
`New York, NY 10166
`[Additional counsel on inside cover]
`
`
`
`

`

`
`
`John M. Taladay
`Erik T. Koons
`BAKER BOTTS LLP
`700 K Street NW
`Washington, DC 20001
`Aaron M. Streett
`BAKER BOTTS LLP
`910 Louisiana Street
`Houston, TX 77002
`Kathy L. Osborn
`FAEGRE DRINKER BIDDLE
`& REATH LLP
`300 N. Meridian Street,
`Suite 2500
`Indianapolis, IN 46204
`Jeffrey S. Roberts
`FAEGRE DRINKER BIDDLE
`& REATH LLP
`1144 15th Street, Suite
`3400
`Denver, CO 80202
`
`
`Alexander Cote
`WINSTON & STRAWN LLP
`333 S. Grand Avenue
`Los Angeles, CA 90071
`Andrew Rhys Davies
`ALLEN & OVERY LLP
`1221 Avenue of the
`Americas
`New York, NY 10020
`Eliot A. Adelson
`James R. Sigel
`MORRISON & FOERSTER
`LLP
`425 Market Street
`San Francisco, CA 94105
`James H. Mutchnik
`KIRKLAND & ELLIS, LLP
`300 North LaSalle
`Chicago, IL 60654
`Donald A. Wall
`SQUIRE PATTON BOGGS
`(US) LLC
`2325 East Camelback
`Road, Suite 700
`Phoenix, Arizona 85016
`
`
`Counsel for Defendant-Respondents
`
`
`

`

`i
`QUESTIONS PRESENTED
`1. Whether the Ninth Circuit correctly determined
`that petitioners’ appeals from the denial of their mo-
`tions to intervene were moot on the facts of this case.
`2. Whether the district court correctly held that it
`lacked subject-matter jurisdiction over petitioners’
`motions to intervene.
`
`

`

`ii
`CORPORATE DISCLOSURE STATEMENTS
`Hitachi, Ltd. is a publicly held corporation. Its
`common stock is listed on Japanese Stock Exchanges.
`Hitachi, Ltd. has no parent corporation, and no corpo-
`ration, entity, or individual owns 10 percent or more of
`its stock. Both Hitachi America, Ltd. and Hitachi
`Asia, Ltd. are wholly owned subsidiaries of Hitachi
`Ltd. Hitachi Electronic Devices (USA) was merged
`into Hitachi America, Ltd. Japan Display Inc. (JDI) is
`a publicly held corporation. Its common stock is listed
`on Japanese Stock Exchanges. JDI has no parent cor-
`poration. Ichigo Trust and INCJ, Ltd. hold more than
`10 percent of the outstanding shares of JDI.
`Koninklijke Philips N.V. (f/k/a Koninklijke Philips
`Electronics N.V.) (“KPNV”) is a Dutch corporation that
`is publicly traded on the Amsterdam and New York
`Stock Exchanges. It has no parent corporation and no
`publicly held company owns 10% or more of its stock.
`Philips North America LLC (f/k/a Philips Electronics
`North America Corporation) (“PNA”) is wholly owned,
`directly or indirectly, by KPNV. Other than KPNV, no
`publicly held company owns 10% or more of PNA’s
`stock. Philips Taiwan Limited (f/k/a Philips Electron-
`ics Industries (Taiwan), Ltd.) is wholly owned, directly
`or indirectly, by KPNV. Other than KPNV, no publicly
`held company owns 10% or more of Philips Taiwan
`Limited’s stock. Philips do Brasil, Ltda. (f/k/a Philips
`da Amazonia Industria Electronica Ltda.) is wholly
`owned, directly or indirectly, by KPNV. Other than
`KPNV, no publicly held company owns 10% or more of
`Philips do Brasil, Ltda.’s stock.
`Panasonic Corporation (n/k/a Panasonic Holdings
`Corporation, f/k/a Matsushita Electric Industrial Co.,
`Ltd.) is a publicly traded company. It has no parent
`corporation, and no publicly held corporation owns
`
`

`

`iii
`10% or more of its stock. Panasonic Corporation of
`North America certifies that (a) Panasonic Holding
`(Netherlands) B.V. (“PHN”) is its direct corporate par-
`ent; (b) Panasonic Corporation, through its ownership
`of PHN, is its indirect corporate parent; and (c) Pana-
`sonic Corporation indirectly owns 10% or more of its
`stock. MT Picture Display Co., Ltd. has been dissolved
`and completed final liquidation in Japan; prior to its
`liquidation, Panasonic Corporation was its corporate
`parent and owned 10% or more of its stock.
`Samsung SDI America, Inc., Samsung SDI (Malay-
`sia) Sdn. Bhd., Samsung SDI Mexico S.A. De C.V.,
`Samsung SDI Brasil Ltda., Shenzen Samsung SDI
`Co., Ltd., and Tainjin Samsung SDI Co., Ltd. are or
`were non-governmental corporate entities whose par-
`ent corporation is or was Samsung SDI Co., Ltd.
`(“SDI”). Samsung SDI Mexico S.A. de C.V., Samsung
`SDI Brasil Ltda., Shenzhen Samsung SDI Co., Ltd.,
`and Samsung SDI (Malaysia) Sdn. Bhd. have been dis-
`solved. SDI is a nongovernmental Korean corporate
`entity with no parent corporation. SDI is publicly
`traded on the Korean stock exchange. Samsung Elec-
`tronics Co., Ltd. owns approximately 20% of SDI stock.
`No other publicly traded entity owns more than 10% of
`SDI stock.
`Technologies Displays Americas LLC (“TDA”) is a
`wholly owned subsidiary of Eagle Corporation Ltd.
`Videocon Industries Limited, a publicly traded com-
`pany undergoing a Corporate Insolvency Resolution
`Process under the provisions of The Insolvency Bank-
`ruptcy Code of India, is believed to own 10% or more of
`Eagle Corporation Ltd. No other publicly held corpo-
`ration owns 10% or more of Eagle Corporation Ltd.’s
`shares.
`
`

`

`iv
`Thomson SA (n/k/a Technicolor SA) is a publicly
`held corporation whose stock is traded on the Paris
`stock exchange. Thomson SA has no parent corpora-
`tion, and no corporation, entity, or individual owns 10
`percent or more of its stock. Thomson Consumer, Inc.
`(n/k/a Technicolor USA, Inc.) is a wholly owned subsid-
`iary of Thomson SA.
`Toshiba America Consumer Products, L.L.C. no
`longer exists as a separate entity and has been merged
`into Toshiba America Information Systems, Inc.
`Toshiba America Information Systems, Inc. has been
`dissolved; prior to dissolution, it was a wholly owned
`subsidiary of Toshiba America, Inc. Toshiba America
`Electronic Components, Inc. is a wholly owned subsid-
`iary of Toshiba America, Inc. Toshiba America, Inc. is
`a wholly owned subsidiary of Toshiba Corporation.
`Toshiba Corporation is a publicly held company whose
`shares are issued and traded in Japan, and no publicly
`held corporation owns 10% or more of Toshiba Corpo-
`ration’s stock.
`
`

`

`v
`TABLE OF CONTENTS
`
`Page
`QUESTIONS PRESENTED ......................................... i
`CORPORATE DISCLOSURE STATEMENTS ........... ii
`TABLE OF AUTHORITIES ...................................... vii
`INTRODUCTION ........................................................ 1
`STATEMENT ............................................................... 3
`A. Overview ......................................................... 3
`B. The parties ...................................................... 6
`C. Proceedings below ........................................... 7
`1. Since at least 2010, it has been clear
`that no class representative was
`pursuing state-law damages claims on
`behalf of petitioners. ................................ 7
`Initial settlements were reached and
`approved, and then the approval
`order was remanded. ............................... 9
`3. After remand, the IPP respondents
`and defendant-respondents reached
`new settlements that did not release
`petitioners’ potential claims. ................. 11
`4. The district court denied petitioners’
`motions to intervene in the MDL.......... 13
`5. The Ninth Circuit affirmed the order
`approving the amended settlements
`and dismissed the intervention
`appeals as moot. .................................... 14
`REASONS FOR DENYING THE PETITION .......... 16
`I. There is no reason to grant review on the
`mootness question. ............................................... 17
`
`2.
`
`

`

`
`
`vi
`
`B.
`
`A. There is no live circuit split. ......................... 17
`1. The Ninth and D.C. Circuits analyze
`mootness on a fact-specific, case-by-
`case basis. .............................................. 17
`2. The Second Circuit too analyzes
`mootness on a case-by-case, fact-
`specific basis. ......................................... 20
`If there were a circuit split, this case does
`not present it. ................................................ 23
`C. This case is also an unsuitable vehicle for
`at least two other reasons. ............................ 24
`1. Petitioners conceded mootness below. .. 24
`2. The district court’s determination
`that it lacked subject-matter
`jurisdiction would complicate this
`Court’s review. ....................................... 24
`II. The MDL question was not reached by the
`Ninth Circuit, does not involve any circuit
`split, and is not certworthy. ................................. 26
`CONCLUSION .......................................................... 29
`
`
`

`

`vii
`TABLE OF AUTHORITIES
`
` Page(s)
`
`Cases
`Allied Concrete & Supply Co. v. Baker,
`904 F.3d 1053 (9th Cir. 2018) ........................... 18
`Alt. Research & Dev. Found. v. Veneman,
`262 F.3d 406 (D.C. Cir. 2001) ........................... 19
`In re Brewer,
`863 F.3d 861 (D.C. Cir. 2017) ........................... 19
`Camreta v. Greene,
`563 U.S. 692 (2011) ........................................... 25
`Cooper v. Newsom,
`13 F.4th 857 (9th Cir. 2021) .............................. 18
`CVLR Performance Horses, Inc. v. Wynne,
`792 F.3d 469 (4th Cir. 2015) ................. 18, 21, 22
`DeOtte v. Nevada,
`20 F.4th 1055 (5th Cir. 2021) ...................... 17, 22
`Energy Transp. Grp., Inc. v. Maritime
` Admin.,
`956 F.2d 1206 (D.C. Cir. 1992) ............ 18, 19, 22
`
`
`In re Endangered Species Act Section 4
`Deadline Litig.,
`704 F.3d 972 (D.C. Cir. 2013) ........................... 19
`
`In re Farmers Ins. Exch. Claims
`Representatives Overtime Pay Litig.,
`2008 WL 4763029 (D. Or. 2008)........................ 27
`
`

`

`viii
`
`
`Hamilton v. Cnty. of Los Angeles,
`46 F.3d 1141 (9th Cir. 1995) ............................. 18
`Hawaii-Pac. Venture Capital Corp. v.
`Rothbard,
`564 F.2d 1343 (9th Cir. 1977) ........................... 26
`Idaho Conservation League v. U.S. Forest
`Serv.,
`2021 WL 3758320 (9th Cir. 2021) ..................... 18
`Ill. Brick Co. v. Illinois,
`431 U.S. 720 (1977) ............................................. 6
`Kunz v. N.Y. State Comm’n on Judicial
`Misconduct,
`155 Fed. App’x 21 (2d Cir. 2005) ................. 21, 22
`Lopez v. NLRB,
`655 Fed. App’x 859 (D.C. Cir. 2016) ................. 19
`
`In re Mortgage Elec. Registration Sys.
`(MERS) Litig.,
`2016 WL 3931820 (D. Ariz. 2016) ..................... 27
`In re Multidistrict Vehicle Air Pollution,
`538 F.2d 231 (9th Cir. 1976) ............................... 8
`Nat’l Bulk Carriers, Inc. v. Princess Mgmt.
`Co.,
`597 F.2d 819 (2d Cir. 1979) ................... 20, 21, 22
`Omnicare, Inc. v. Laborers Dist. Council
`Constr. Indus. Pension Fund,
`575 U.S. 175 (2015) ........................................... 26
`
`

`

`ix
`
`
`Sinochem Int’l Co. v. Malaysia Int’l
`Shipping Corp.,
`549 U.S. 422 (2007) ........................................... 25
`Stadnicki ex rel. LendingClub Corp. v.
`Laplanche,
`804 Fed. Appx. 519 (9th Cir. 2020) ................... 18
`Stromberg v. Qualcomm Inc.,
`14 F.4th 1059 (9th Cir. 2021) .............................. 6
`United States v. City of New York,
`198 F.3d 360 (2d Cir. 1999) ............................... 26
`United States v. Ford,
`650 F.2d 1141 (9th Cir. 1981) ........................... 18
`United States v. Peoples Benefit Life Ins. Co.,
`271 F.3d 411 (2d Cir. 2001) ............................... 21
`United States v. Sprint Commc’ns Inc.,
`855 F.3d 985 (9th Cir. 2017) ........... 15, 18, 22, 23
`W. Coast Seafood Processors Ass’n v. Nat.
`Res. Def. Council, Inc.,
`643 F.3d 701 (9th Cir. 2011) ....................... 18, 22
`
`Statutes and Rules
`28 U.S.C. § 1407 ............................................ 3, 13, 28
`Clayton Act § 16, 15 U.S.C. § 26 .............................. 8
`Fed. R. Civ. P. 24(a)(2) ............................................ 26
`J.P.M.L. R. 7.2(a) .................................................... 28
`
`

`

`x
`
`
`Other Materials
`9th Cir. Oral Arg. Rec.
`https://www.ca9.uscourts.gov/media/
`video/?20210728/20-15697 .................... 14, 15, 24
`
`

`

`
`INTRODUCTION
`The petition should be denied. Although petition-
`ers claim there is a circuit split, that split is illusory,
`and for multiple, independent reasons this case would
`be an exceptionally poor vehicle for resolving the pur-
`ported conflict in any event.
`This appeal stems from the denial of petitioners’
`motions to intervene in a multidistrict litigation
`(“MDL”). Because petitioners sought intervention in
`the MDL directly—rather than filing separate actions
`and then seeking to have them transferred to the
`MDL—the MDL court found, among other things, that
`it lacked subject-matter jurisdiction over their claims.
`Petitioners appealed the denial of intervention to the
`Ninth Circuit. In an unpublished decision, the court
`found the appeals moot and thus did not reach either
`the underlying jurisdictional issue or the merits of in-
`tervention.
`According to petitioners, the Ninth Circuit applied
`a “minority” rule holding that an intervention appeal
`is automatically mooted by a settlement and dismissal
`of the underlying case. This mischaracterizes both the
`state of the law and the decision below.
`The Ninth Circuit did not apply an automatic moot-
`ness rule. In fact, no Ninth Circuit decision has ap-
`plied such a rule since a 2017 decision clarified the cir-
`cuit’s law. Rather, applying the same case-by-case
`analysis that petitioners advocate and that all circuits
`actually apply, the Ninth Circuit determined that pe-
`titioners’ appeals were moot on the facts. The court’s
`unpublished decision—which is both fact-specific and
`non-precedential—is consistent with all post-2017
`Ninth Circuit decisions on this subject. There is no
`
`

`

`2
`outlier authority in the Ninth Circuit for this Court to
`address, either in this case or otherwise.
`Nor is an automatic mootness rule applied in other
`circuits. As in the Ninth Circuit, all recent D.C. Cir-
`cuit cases apply the same fact-specific, case-by-case
`analysis that petitioners advocate. And notwithstand-
`ing some broad language, the Second Circuit has never
`adopted a categorical mootness rule in a published de-
`cision and has never dismissed an intervention appeal
`solely because the underlying litigation had been re-
`solved. In each case that petitioners cite, the court dis-
`missed the appeal only after considering whether,
`given the particular facts of the case, it was still possi-
`ble for the intervenor to obtain effective relief.
`Even if the supposed circuit split existed, moreover,
`this would be an exceptionally poor vehicle for resolv-
`ing it.
`To start, this case does not implicate the purported
`split. Because the Ninth Circuit applied the same
`case-by-case, fact-specific analysis that petitioners ask
`this Court to adopt, the result below would not change
`even if the Court were to grant certiorari and endorse
`petitioners’ preferred rule.
`Moreover, petitioners invited the Ninth Circuit’s
`determination that their intervention appeals were
`moot. In the proceedings below, they argued that their
`attempt to intervene—and, by implication, their inter-
`vention appeals—would be mooted if the court af-
`firmed the district court’s approval of the settlements.
`Petitioners cannot object in this Court to a result that
`they advocated below.
`These problems alone are sufficient grounds for
`denying certiorari. But there is yet another problem:
`the district court held that it lacked subject-matter
`
`

`

`3
`jurisdiction over the motions to intervene because the
`MDL statute (28 U.S.C. § 1407) does not allow direct
`intervention in an MDL. The very existence of this ju-
`risdictional issue complicates this case and further
`demonstrates why it is not a good vehicle for resolving
`any question about the test for mootness.
`Perhaps recognizing this problem, petitioners ask
`this Court to grant review on the MDL issue as well.
`But the Ninth Circuit did not address it below, and pe-
`titioners identify no lower-court conflict over the issue,
`which arises infrequently and was decided correctly by
`the district court. There is, in short, no reason for this
`Court to review the MDL question.
`For all these reasons, the petition should be denied.
`STATEMENT
`This case involves a long-running but now largely
`settled dispute over cathode ray tubes (“CRTs”), an ob-
`solete technology that was once used as the primary
`component in “big-box” televisions and computer mon-
`itors. Because of the procedural complexity, defend-
`ant-respondents provide both an overview of the his-
`tory of this litigation and a more detailed account.
`A. Overview
`This sprawling class-action, multidistrict litigation
`began in 2007, when the defendant-respondents and
`others who manufactured or sold CRTs were sued for
`alleged antitrust violations. More than forty similar
`complaints were filed in district courts around the
`country. In early 2008, the cases were consolidated for
`pretrial proceedings by the Judicial Panel on Multidis-
`trict Litigation. Over the course of fifteen years, lead
`plaintiffs representing indirect purchasers of CRTs in-
`corporated in televisions and computer monitors filed
`
`

`

`4
`four successive consolidated complaints, ultimately as-
`serting state-law damages claims on behalf of twenty-
`two state-wide classes and a federal claim for injunc-
`tive relief on behalf of a putative nationwide class.
`During this period, the district court made more than
`6,000 docket entries, and the Ninth Circuit heard mul-
`tiple rounds of appeals, the most recent of which gave
`rise to this petition.
`Since the filing of the Third Amended Complaint in
`2010, no complaint has asserted claims under the laws
`of any of petitioners’ home states. And no complaint
`ever asserted the federal equitable-disgorgement or
`restitution claim that one petitioner seeks to assert.
`When plaintiffs later moved for class certification in
`2012, they did not seek to certify—and the district
`court did not certify—either a state-wide class or a na-
`tionwide class that included petitioners.
`In 2016, nine years after the litigation began, the
`district court approved settlements between the de-
`fendant-respondents and a settlement class compris-
`ing the twenty-two state-wide damages classes and the
`putative nationwide injunctive relief class alleged in
`the operative complaint. Although others objected to
`these settlements and appealed the district court’s ap-
`proval of the settlements, petitioners did not.
`In 2019, after remand from the Ninth Circuit, the
`initial settlements were amended to narrow the settle-
`ment class to include only the twenty-two state-wide
`damages classes. As a result, the amended settle-
`ments do not release any claims of individuals (like pe-
`titioners) who had allegedly made their purchases in
`other states and would not receive monetary compen-
`sation under the allocation plan adopted by plaintiffs’
`lead counsel.
`
`

`

`5
`It was only then—twelve years after the litigation
`began—that petitioners tried to assert their claims,
`which either had not been previously asserted or had
`been long abandoned. But rather than initiate a sep-
`arate action and seek transfer to the MDL (as the MDL
`statute requires), petitioners moved to intervene di-
`rectly in the MDL itself.
`The MDL court denied petitioners’ motions to in-
`tervene. It held that it lacked subject-matter jurisdic-
`tion to consider their claims because petitioners had
`attempted to assert them in the MDL itself, rather
`than filing separate cases that would then be trans-
`ferred to the MDL. The court advised petitioners to
`file such separate suits and seek a transfer to the
`MDL.
`Petitioners declined to do so, instead appealing the
`denial of their motions to intervene. The stated reason
`for this procedural choice was petitioners’ desire to in-
`voke the relation-back doctrine, which they hoped
`would save their more-than-twelve-year-old claims
`from dismissal as untimely. In fact, the relation-back
`doctrine would not save their claims from dismissal
`even if petitioners were allowed to intervene directly
`in the MDL. But, in any event, the desire to try to in-
`voke the relation-back doctrine to revive time-barred
`claims is not a cognizable basis for intervention.
`During proceedings in the Ninth Circuit, petition-
`ers argued that their motions to intervene would be
`“doomed” if the court affirmed the order approving the
`settlement agreements, as it ultimately did. Con-
`sistent with that concession, the Ninth Circuit, upon
`affirming the amended settlements, dismissed peti-
`tioners’ intervention appeals as moot.
`
`

`

`6
`
`B. The parties
`Petitioners are fourteen individuals who say they
`purchased a television or computer monitor containing
`a CRT made or sold by one or more of the defendant-
`respondents (or their alleged co-conspirators).
`The fourteen petitioners come from a total of ten
`states: Arkansas, Massachusetts, Missouri, Montana,
`New Hampshire, Ohio, Oregon, Rhode Island, South
`Carolina, and Utah. Nine of these states have been
`referred to in this litigation as “omitted repealer
`states” (“ORS”). Petitioners call them “repealer states”
`because, according to petitioners, they have, “in one
`form or another,” repealed this Court’s ruling in Illi-
`nois Brick Co. v. Illinois, 431 U.S. 720, 746 (1977), and
`thus allow indirect purchasers to bring state-law anti-
`trust damages suits for price fixing. Stromberg v.
`Qualcomm Inc., 14 F.4th 1059, 1064 (9th Cir. 2021).1
`Petitioners call them “omitted” repealer states because
`the Indirect Purchaser Plaintiff-respondents (“IPP re-
`spondents”) did not prosecute any damages claims un-
`der the laws of these states. The petitioner from the
`remaining state—Ohio, one of the “non-repealer
`states” (“NRS”)—asserts only a claim for federal equi-
`table relief, as she concedes that Ohio has not repealed
`the Illinois Brick rule.
`The IPP respondents belong to twenty-two certi-
`fied, state-specific classes that have throughout the lit-
`igation asserted state-law damages claims on behalf of
`
`
`1 In fact, as the district court held, at least three of these states—
`Arkansas, Rhode Island, and Montana—either do not provide a
`state-law cause of action for price fixing or have not repealed the
`Illinois Brick doctrine as a matter of state antitrust law. ECF
`Nos. 597 at 30–31, 768 at 3-5, 665 at 26 ¶ 14.
`
`

`

`7
`millions of individuals who purchased products con-
`taining CRTs in these twenty-two “repealer states.”
`Defendant-respondents are seven defendant corpo-
`rate groups, some members of which at one time man-
`ufactured, distributed, or sold CRTs or televisions or
`computer monitors containing CRTs. They have long
`since exited the defunct CRT business.
`C. Proceedings below
`1. Since at least 2010, it has been clear
`that no class representative was
`pursuing state-law damages claims on
`behalf of petitioners.
`Beginning in November 2007, indirect purchasers
`of CRTs filed at least forty-one complaints in district
`courts around the nation. (Petitioners were not among
`them.) In 2008, the Judicial Panel on Multidistrict Lit-
`igation transferred all related indirect-purchaser ac-
`tions to the Northern District of California for pretrial
`coordination.
`Over the next five years, indirect purchaser plain-
`tiffs filed four consolidated amended complaints, each
`signed by counsel for petitioners, that successively
`dropped or revised various state-law damages claims
`in response to dismissal orders and other develop-
`ments. As noted at the outset, no complaint has as-
`serted claims under the laws of any of petitioners’
`home states since 2010.2
`
`
`2 The March 2009 Consolidated Amended Complaint asserted
`state-law damages claims under the laws of twenty-two states,
`including Massachusetts and Rhode Island, but none of the other
`eight states associated with petitioners. ECF No. 437 ¶ 241. The
`May 2010 Second Consolidated Amended Complaint included
`
`
`

`

`8
`When the putative class representatives moved for
`certification of each of the twenty-two state-based
`damages classes in October 2012 (ECF No. 1388), they
`did not seek certification of any nationwide class or
`any state-law damages class that included indirect
`purchasers in any of the “omitted repealer” or “non-re-
`pealer” states.3 Petitioners’ counsel signed the class
`certification motion.
`
`
`state-law damages claims under the laws of twenty-six states, in-
`cluding Massachusetts, Arkansas, and Montana, but dropped
`Rhode Island and again did not assert claims under the laws of
`the other six states associated with petitioners. ECF No. 716
`¶ 236. The December 2010 Third Consolidated Amended Com-
`plaint asserted no claims under the laws of any of petitioners’
`home states. ECF No. 827 ¶ 233. The January 2013 Fourth Con-
`solidated Amended Complaint, like its predecessor, did not assert
`claims under the laws of any of petitioners’ home states. ECF No.
`1526 ¶ 244. In addition to the state-law claims, each of these con-
`solidated amended complaints asserted a nationwide claim for in-
`junctive relief under Section 16 of the Clayton Act, 15 U.S.C. § 26.
`See ECF Nos. 437 ¶ 253; 716 ¶ 248; 827 ¶ 245; 1526 ¶ 256. The
`Fourth Consolidated Amended Complaint remained the operative
`complaint until 2019, when the Fifth Consolidated Amended
`Complaint was filed in conjunction with the amended settle-
`ments. ECF No. 5589.
`3 The IPP respondents did not seek certification of the nationwide
`class’s claim for injunctive relief because “the CRT business has
`largely died and the people who effectuated” the purported “CRT
`conspiracy moved on when CRT technology became obsolete[],”
`making “‘an injunction basically worthless, and probably impos-
`sible to obtain.’” ECF No. 4712 at 19 (citations omitted). Further,
`the IPP respondents never alleged a claim for equitable disgorge-
`ment under the Clayton Act—as one petitioner seeks to do—be-
`cause “the Ninth Circuit disallows private use of Section 16 to
`pursue disgorgement.” Id. at 20 (citing In re Multidistrict Vehicle
`Air Pollution, 538 F.2d 231, 234 (9th Cir. 1976) (“Recovery for
`past losses is properly covered under [Section] 4; it comes under
`the head of ‘damages.’ * * * [Section] 16 does not allow the claimed
`relief for past loss.”)).
`
`

`

`9
`In sum, since at least December 2010, it has been
`evident to petitioners and their counsel that no one
`was pursuing state-law damages claims on their be-
`half. And the class certification motion in 2012 further
`confirmed that the plaintiffs were not pursuing any
`claim on behalf of petitioners. Despite this, petitioners
`never filed their own lawsuit and waited nearly nine
`years before seeking to intervene.
`2. Initial settlements were reached and
`approved, and then the approval order
`was remanded.
`While petitioners sat on their alleged rights to as-
`sert damages claims under the laws of their home
`states, the MDL continued, generating more than
`6,000 docket entries. Docket, MDL No. 1917, No. 07-
`5944 (N.D. Cal.). The parties engaged in extensive dis-
`covery and motion practice, producing millions of doc-
`uments (ECF Nos. 1933-1 at 4, 5416 at 4), taking more
`than one hundred depositions of fact witnesses and
`thirty-five depositions of seventeen expert witnesses,
`and filing more than twenty motions to compel and
`sixty motions in limine (see ECF No. 4071-1 at 14, 19,
`22, 24–25, 34–35). Two federal district judges and four
`special masters entered more than six hundred IPP-
`specific orders, including rulings on twenty motions to
`dismiss, and a complex motion for class certification.
`Over twenty motions for summary judgment were
`briefed. Nearly all this activity occurred long after it
`was apparent that no claims were being pursued on
`behalf of petitioners.
`After eight years of litigation, the IPP respondents
`reached settlement agreements with the seven sets of
`defendant-respondents. The settlements released the
`claims asserted on behalf of a nationwide indirect-
`
`

`

`10
`purchaser settlement class in exchange for payments
`from the defendant-respondents that collectively to-
`taled $541.75 million. ECF Nos. 3862-1 to -5, 3875.
`Contrary to petitioners’ assertion (Pet. 3), the terms of
`the settlement agreements did not dictate the distri-
`bution of the settlement funds. Instead, under the
`agreements, the distribution would be determined by
`a separate allocation plan to be developed solely by the
`IPP respondents. ECF Nos. 3862-1 at 11, 3862-2 at
`11–12, 3862-3 at 12, 3862-4 at 11, 3862-5 at 12.
`Under the allocation plan, the IPP respondents’
`lead counsel determined that only members of the
`twenty-two state-specific damages classes could make
`claims on the settlement fund because all other claims
`lacked legal foundation and were thus worthless. Pet.
`App. 37–38. Petitioners did not belong to any of those
`state-specific classes.
`Petitioners did not object to these settlements.
`Some others did object, and the district court over-
`ruled the objections and approved the settlements, cer-
`tifying a nationwide settlement class of indirect pur-
`chasers. ECF Nos. 4712, 4717. Objectors from Massa-
`chusetts, Missouri, and New Hampshire appealed the
`settlement approval order, arguing that their claims
`were improperly released without monetary compen-
`sation from the settlement fund. See, e.g., No. 16-
`16379, ECF No. 70 at 54–58 (9th Cir. Apr. 3, 2017); No.
`16-16399, ECF No. 29 (9th Cir. Nov. 17, 2016).
`While the objectors’ appeal was pending, the dis-
`trict court concluded that it had “erred” in approving
`the original settlements. Specifically, the district
`court faulted the allocation plan’s requirement that
`class members from Massachusetts, Missouri, and
`New Hampshire release their purported state-law
`
`

`

`11
`damages claims without monetary compensation from
`the settlement fund. ECF No. 5362 at 1.
`The Ninth Circuit then remanded for reconsidera-
`tion of the order approving the settlements. Pet. App.
`162. On remand, the district court appointed counsel
`to represent indirect purchasers in the nine purported
`omitted repealer states (ORS) and twenty non-re-
`pealer states (NRS) who would not receive monetary
`compensation under the settlements. ECF No. 5518.
`3. After remand, the IPP respondents and
`defendant-respondents reached new
`settlements that did not release
`petitioners’ potential claims.
`On remand, the district court appointed a magis-
`trate judge to oversee renewed settlement discussions.
`ECF No. 5427. The magistrate mediated between de-
`fendant-respondents and representatives of the
`twenty-two state-law damages classes. ECF No. 5531.
`The mediation resulted in amended settlements that
`did not release petitioners’ claims. A separate media-
`tion that included ORS purchasers did not yield a set-
`tlement. ECF No. 5617.
`The court preliminarily approved the amended set-
`tlements between the IPP respondents and defendant-
`respondents in March 2020. Pet. App. 98.
`Some petitioners objected to the amended settle-
`ments. ECF Nos. 5732, 5756. Among other things, the
`objectors demanded to be included in a global settle-
`ment of all indirect purchasers in which they would
`share in the recovery. See, e.g., ECF Nos. 5607 at 11–
`13, 5732 at 13. The objectors made this claim even
`though the ORS and NRS purchasers failed to agree to
`a settlement despite negotiations in which, at their re-
`quest, they were separately represented.
`
`

`

`12
`The district court struck the objections and granted
`final approval of the amended settlements. Pet. App.
`34. It ruled that the objectors lacked standing to object
`because they were not members of the settlement clas-
`ses and because the amended settlements would not
`release any of their potential claims. Pet. App. 46–49.
`Indeed, the district court’s order afforded exactly the
`relief that the objectors had rep