Packaging Systems, Inc. v. PRC-Desoto International, Inc. et al, No. 2:2016cv09127 - Document 38 (C.D. Cal. 2018)
Court Description: ORDER DENYING DEFENDANTS MOTION TO DISMISS 34 by Judge Otis D. Wright, II. (lc). Modified on 2/6/2018 (lc).
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Packaging Systems, Inc. v. PRC-Desoto International, Inc. et al Doc. 38 O 1 2 3 4 5 6 7 United States District Court Central District of California 8 9 10 11 Plaintiff, 12 13 14 Case 2:16-cv-09127-ODW(JPRx) PACKAGING SYSTEMS, INC., ORDER DENYING DEFENDANTS’ MOTION TO DISMISS [34] v. PRC-DESOTO INTERNATIONAL, INC.; and PPG INDUSTRIES, INC., 15 Defendants. 16 I. 17 18 INTRODUCTION This is an antitrust action involving competitors in the aerospace sealant 19 industry. Defendants PRC-Desoto International, Inc. and PPG Industries, Inc. 20 (collectively “PPG”) manufacture and distribute aerospace sealant for use in military 21 and commercial aircraft. 22 quantities of aerospace sealant from PPG, repackages the sealant into special injection 23 kits, and sells the kits on the retail market (usually to aircraft maintenance companies). 24 In August 2016, PPG issued a memo stating that the repackaging of its 25 aerospace sealant for the purposes of resale was prohibited, and that it would stop 26 selling sealant to any reseller that violated this prohibition. Plaintiff subsequently 27 filed this action, alleging violations of state and federal antitrust and unfair 28 competition laws. PPG now moves to dismiss Plaintiff’s Second Amended Complaint Plaintiff Packaging Systems, Inc. purchases wholesale Dockets.Justia.com 1 (“SAC”). (Mot., ECF No. 34.) For the reasons discussed below, the Court DENIES 2 its Motion.1 II. 3 4 A. BACKGROUND Uses of Aerospace Sealant 5 PPG manufactures and distributes aerospace sealant. (SAC ¶ 29, ECF No. 33.) 6 Aerospace sealant has a variety of uses on aircraft, including sealing fuel tanks, 7 smoothing surfaces, and preventing moisture intrusion. (Id. ¶ 13.) Obviously, it is 8 important that aerospace sealant be able to withstand a number of harsh environmental 9 conditions, such as wide variations in temperature and pressure, inclement weather, 10 ultraviolet light, noise, vibration, abrasion, moisture, fatigue, and high g-forces. (Id.) 11 Because of this, aircraft manufacturers issue stringent specifications for any aerospace 12 sealant used on their aircraft, and maintain a list of qualified products that meet these 13 requirements. (Id. ¶¶ 17–18.) To land on a manufacturer’s qualified product list 14 (“QPL”), the sealant must pass rigorous testing at either Wright-Patterson Air Force 15 Base or the Federal Aviation Administration. (Id. ¶ 18.) End-users of aerospace 16 sealant—usually aircraft maintenance companies—will virtually never use non-QPL 17 sealant for safety and liability reasons. (Id.) 18 Aerospace sealant comes from the manufacturer as separate pastes that must be 19 mixed together prior to use. (Id. ¶¶ 15–16.) Once mixed, there is a relatively short 20 window in which the mixture can be applied to the aircraft—sometimes as short as 21 half an hour. (Id.) After the mixture’s “working time” has passed, any excess mixture 22 is unusable and must be discarded. (Id. ¶ 15.) End-users can mix sealant either by 23 manually mixing the pastes or by using an injection kit. (Id. ¶ 16.) An injection kit is 24 a disposable syringe-like tool that stores the pastes in separate compartments and 25 mixes them together when its plunger is depressed. (Id. ¶¶ 16, 38.) Not only do 26 injection kits simplify the mixing process, they reduce waste by mixing only the exact 27 28 1 After considering the papers filed in connection with the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78(b); C.D. Cal. L.R. 7-15. 2 1 amount of sealant needed for one sitting. (See id.) However, filling kits with sealant 2 is itself a difficult and labor-intensive process, and thus end-users tend to prefer 3 purchasing the kits pre-filled. (Id. ¶ 42.) 4 B. Production of Aerospace Sealant 5 Plaintiff alleges that the production of aerospace sealant is its own unique 6 market. (Id. ¶¶ 21–28.) That is, there are no adequate substitutes for QPL-approved 7 aerospace sealants because the properties of aerospace sealant are unique to the needs 8 of aircrafts, and because aerospace sealant must undergo rigorous testing not required 9 of non-aircraft sealants. (Id. ¶¶ 21–22.) Pricing for aerospace sealants is therefore 10 highly inelastic. (Id. ¶¶ 26–28.) 11 PPG produces over 90% of the aerospace sealant manufactured and used in the 12 United States. (Id. ¶ 29.) According to Plaintiff, PPG is able to maintain such market 13 dominance for two reasons. First, high barriers to entry prevent new competitors from 14 entering the market. (Id. ¶ 31.) These barriers include “hundreds of millions of 15 dollars” in startup costs, long delays in profit realization, entrenched distribution 16 networks among preexisting producers, and intellectual property held by such 17 producers covering critical production processes. (Id.) Second, PPG has consolidated 18 its power in the market by continuously acquiring other companies in the aerospace 19 sealant industry and the general aerospace industry—including SEMCO, which is one 20 of the two main manufacturers of injection kits.2 (Id. ¶¶ 34–35, 38–39.) This makes 21 PPG a “one-stop shop” for all aerospace products, thus discouraging customers from 22 shopping around for any one particular product. (Id. ¶ 35.) 23 C. Distribution of Aerospace Sealant PPG sells sealant in both wholesale and retail quantities. 24 (Id. ¶¶ 1, 36.) 25 Generally, resellers buy wholesale quantities of sealant from PPG to sell at retail price 26 to end-users, usually after repackaging the sealant into injection kits. (Id. ¶¶ 36, 40.) 27 PPG also sells retail quantities of sealant directly to end-users, including sealant 28 2 The other being Techon. (Id. ¶¶ 38, 39.) 3 1 packaged into injection kits. (Id. ¶¶ 51–53.) PPG uses “application support centers” 2 (“ASCs”) to package its sealant. (Id. ¶ 53.) These ASCs used to be independent 3 repackaging companies before PPG acquired them. (Id. ¶ 51.) According to Plaintiff, 4 PPG’s ASCs continue to use the same repackaging procedure that they did prior to 5 being acquired. (Id. ¶ 53.) 6 Plaintiff has been a sealant repackager and reseller since 1976. (Id. ¶ 40.) Like 7 other resellers, Plaintiff purchases sealant wholesale from PPG, purchases injection 8 kits from either SEMCO or Techon, fills the kits with sealant, and sells them ready-to- 9 use to the end-user. (Id.) Thus, Plaintiff competes with PPG in the retail distribution 10 market. (Id. ¶¶ 51–53.) Plaintiff alleges that it has a competitive edge over PPG and 11 other resellers in this market because it (1) maintains a substantial and varied 12 inventory of repackaged sealants and (2) provides end-users with superior customer 13 service. (Id. ¶¶ 41–42.) By 2015, Plaintiff was generating approximately $10 million 14 in annual revenue from reselling PPG’s sealants. (Id. ¶ 40.) 15 Over the years, PPG has attempted to blunt competition in the retail distribution 16 market. This includes: (1) “express[ing an] interest” on more than one occasion in 17 acquiring Plaintiff and turning it into an ASC (id. ¶ 58); (2) telling end-users, most 18 notably in 2001 and 2012, that Plaintiff and other non-PPG resellers were not 19 authorized to repackage PPG sealant, even though at that time PPG had no policy 20 against repackaging (id. ¶¶ 1, 59); and (3) increasing the per-unit price of sealant sold 21 in bulk quantity at a faster rate than the per-unit price of sealant sold in retail quantity, 22 which was against industry norm (id. ¶ 60). 23 D. PPG’s Repackaging Prohibition 24 In August 2016, PPG sent a memo to all of its sealant resellers and distributors, 25 wherein it “confirm[ed] PPG policy” prohibiting the repackaging of its sealants by 26 anyone other than PPG or its ASCs. (Id. ¶ 45, Ex. A.) PPG stated that this policy was 27 necessary to ensure the sealant’s quality for end-users, and that it would refuse to sell 28 sealant to any reseller that violated this policy. (Id.) Plaintiff requested clarification 4 1 from PPG on the policy, including the reason for the policy and whether Plaintiff 2 could “correct [its] business operations” to alleviate PPG’s concerns. (Id., Ex. B.) 3 PPG declined to give a direct answer. (Id.) 4 Plaintiff alleges that the quality-control rationale is simply pretext, and that the 5 real reason for this policy is to eliminate the increasingly successful competition in the 6 retail market from non-PPG resellers. (Id. ¶ 53.) Plaintiff contends that there is no 7 safety advantage to keeping repackaging in-house at PPG, as evidenced by the fact 8 that its ASCs follow the exact same repackaging procedure that they did before PPG 9 acquired them, and the fact that there were “no significant quality issues” associated 10 with repackaging in the many decades that external repackaging had been around. 11 (Id.) Moreover, given PPG’s virtual monopoly in the production market, Plaintiff 12 contends that this new policy will allow PPG to monopolize the retail distribution 13 market as well—and in fact has already “vastly reduced” the amount of repackaged 14 aerospace sealant sales by both Plaintiff and other non-PPG repackagers. (Id. ¶ 46.) 15 Plaintiff filed this action soon thereafter. 16 E. PPG’s Motions to Dismiss 17 Plaintiff asserts the following claims: (1) monopolization in violation of the 18 Sherman Act, 15 U.S.C. § 2; (2) attempted monopolization in violation of the 19 Sherman Act, 15 U.S.C. § 2; (3) tying in violation of the Sherman Act, 15 U.S.C. 20 §§ 1, 2, 4; (4) tying in violation of the California Cartwright Act, Cal. Bus. & Prof. 21 Code §§ 16720, 16727; (5) secret unearned discounts in violation of the California 22 Unfair Practices Act, Cal. Bus. & Prof. Code § 17045; and (6) unfair competition in 23 violation of the California Unfair Competition Law, Cal. Bus. & Prof. Code § 17200. 24 (See generally SAC.) On February 23, 2017, PPG moved to dismiss all of Plaintiff’s 25 claims in its First Amended Complaint. (ECF No. 13.) The Court granted in part and 26 denied in part PPG’s motion, dismissing Plaintiff’s tying claims with leave to amend. 27 (ECF No. 31.) On August 4, 2017, Plaintiff filed the SAC, adding new allegations 28 related to its tying claims. (SAC ¶¶ 63–88, Counts III and IV.) PPG now moves to 5 1 2 dismiss Plaintiff’s tying claims as alleged in the SAC. (Mot. 1.) III. LEGAL STANDARD 3 A court may dismiss a complaint for lack of a cognizable legal theory or 4 insufficient facts pleaded to support an otherwise cognizable legal theory. Fed. R. 5 Civ. P. 12(b)(6); Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 6 1990). To survive a dismissal motion, the complaint must “contain sufficient factual 7 matter, accepted as true, to state a claim to relief that is plausible on its face.” 8 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 9 555 (2007). The determination whether a complaint satisfies the plausibility standard 10 is a “context-specific task that requires the reviewing court to draw on its judicial 11 experience and common sense.” Iqbal, 556 U.S. at 679. A court is generally limited 12 to the pleadings and must construe all “factual allegations set forth in the complaint 13 . . . as true and . . . in the light most favorable” to the plaintiff. Lee v. City of Los 14 Angeles, 250 F.3d 668, 688 (9th Cir. 2001). But a court need not blindly accept 15 conclusory allegations, unwarranted deductions of fact, and unreasonable inferences. 16 Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). The court must 17 grant the plaintiff leave to amend if there is any possibility that amendment could cure 18 the deficiencies, even if the plaintiff fails to request such leave. Lopez v. Smith, 203 19 F.3d 1122, 1130 (9th Cir. 2000) (en banc). 20 21 22 IV. DISCUSSION PPG argues that Plaintiff does not satisfy any of the elements of a tying claim under either the Sherman Act or California’s Cartwright Act. 23 “A tying arrangement is a device used by a seller with market power in one 24 product market to extend its market power to a distinct product market.” Cascade 25 Health Solutions v. PeaceHealth, 515 F.3d 883, 912 (9th Cir. 2008). “To accomplish 26 this objective, the seller conditions the sale of one product (the tying product) on the 27 buyer’s purchase of a second product (the tied product). Tying arrangements are 28 forbidden on the theory that, if the seller has market power over the tying product, the 6 1 seller can leverage this market power through tying arrangements to exclude other 2 sellers of the tied product.” Id. (citations and footnotes omitted). 3 “Both Section 1 [of the Sherman Act] and the Cartwright Act prohibit illegal 4 tying arrangements,” and the elements of a § 1 tying claim for the most part mirror 5 that of the Cartwright Act. RealPage, Inc. v. Yardi Sys., Inc., 852 F. Supp. 2d 1215, 6 1222 (C.D. Cal. 2012). “‘For a tying claim to suffer per se condemnation, a plaintiff 7 must prove (1) that the defendant tied together the sale of two distinct products or 8 services; (2) that the defendant possesses enough economic power in the tying market 9 to coerce its customers into purchasing the tied product; and (3) that the tying 10 arrangement affects a ‘not insubstantial volume of commerce’ in the tied product 11 market.’” Rick-Mik Enters., Inc. v. Equilon Enters. LLC, 532 F.3d 963, 971 (9th Cir. 12 2008) (quoting Cascade Health, 515 F.3d at 913). 13 PPG argues that Plaintiff’s tying claims are inadequate because (1) Plaintiff 14 fails to allege a plausible relevant market for the tied product; (2) Plaintiff does not 15 allege that PPG coerced customers to buy a tied product; (3) the tying and tied 16 products Plaintiff alleges are not distinct products; and (4) Plaintiff has not plausibly 17 alleged harm to competition. (Mot. 1–2.) The Court addresses each argument in turn. 18 A. Market for the Tied Product 19 In the Order on PPG’s first motion to dismiss, the Court dismissed Plaintiff’s 20 tying claim, because Plaintiff had failed to adequately define the tied product market. 21 (Order 13, ECF No. 31.) In its previous pleading, Plaintiff defined the tied product 22 market as “end-user packaging” and identified injection kits as an example of such 23 packaging. (See id.) The Court found this definition insufficient, because it was not 24 clear whether injection kits were simply one example of “end-user packaging” or if 25 injection kits constitute the entire universe of “end-user packaging.” 26 corrected this deficiency in the SAC. Plaintiff 27 An antitrust complaint must define the relevant market for both the tying and 28 the tied product. Sidibe v. Sutter Health, 4 F. Supp. 3d 1160, 1176 (N.D. Cal. 2013); 7 1 In re Webkinz Antitrust Litig., 695 F. Supp. 2d 987, 993 (N.D. Cal. 2010); Newcal 2 Indus., Inc. v. Ikon Office Solution, 513 F.3d 1038, 1045 (9th Cir. 2008). A product 3 market comprises “products that have reasonable interchangeability for the purposes 4 for which they are produced—price, use and qualities considered.” United States v. E. 5 I. du Pont de Nemours & Co., 351 U.S. 377, 406 (1956). A complaint should be 6 dismissed under Rule 12(b)(6) only where “the complaint’s ‘relevant market’ 7 definition is facially unsustainable.” 8 “facially unsustainable” relevant market definition may include cases where “the 9 plaintiff fails to define its proposed relevant market with reference to the rule of 10 reasonable interchangeability and cross-elasticity of demand, or alleges a proposed 11 relevant market that clearly does not encompass all interchangeable substitute 12 products even when all factual inferences are granted in plaintiff’s favor.” Colonial 13 Med. Grp., Inc. v. Catholic Healthcare W., No. C-09-2192 MMC, 2010 WL 2108123, 14 at *3 (N.D. Cal. May 25, 2010) (quoting Queen City Pizza, Inc. v. Domino’s Pizza, 15 Inc., 124 F.3d 430, 436 (3d Cir. 1997)). Newcal Indus., 513 F.3d at 1045. Such a 16 Plaintiff defines the tied product market as end-user packaging consisting of 17 injection kits, syringes, and pint and quart cans in which aerospace sealant can be 18 placed and sold to end-users. (SAC ¶ 67.) PPG argues that this alleged product 19 market is “facially unsustainable” because the products included within the product 20 market do not have “reasonable interchangeability” and are not “substitutes” from the 21 perspective of aerospace sealant consumers. The Court disagrees. 22 Plaintiff has addressed potential substitutes and identified the economic factors 23 that render large, unspecialized aerospace sealant drums and pails unsuitable as 24 substitutes for end-user packaging. (SAC ¶¶ 16, 37–40, 42, 64–75.) That the specific 25 types of end-user packaging Plaintiff identifies are not substitutes for each other does 26 not render the product market unsustainable due to the commercial realities of the 27 aerospace sealant market. See United States v. Grinnell, 384 U.S. 563, 572 (1966) 28 (“We see no barrier to combining in a single market a number of different products or 8 1 services where that combination reflects commercial realities”); Image Tech. Servs., 2 Inc. v. Eastman Kodak Co., 125 F.3d 1195, 1203–04 (9th Cir 1997) (“Consideration 3 of the ‘commercial realities’ in the markets for Kodak parts compels the use of an ‘all 4 parts’ market theory”). 5 injection kits, syringes, and cans, because it would be wasteful and cost-prohibitive 6 for them to purchase aerospace sealant in larger drums. 7 each product is equally subjected to PPG’s recent policy of terminating the supply of 8 aerospace sealant to repackagers. (Id. ¶ 68.) These allegations of commercial realities 9 are sufficient for the purposes of defining the relevant product market at the pleading 10 Plaintiff alleges that end users buy aerospace sealant in (SAC ¶ 64.) Additionally, stage. 11 The ambiguity in the definition of the product market that concerned the Court 12 in its previous order is no longer present. Therefore, the Court finds that Plaintiff has 13 sufficiently defined the tied product market to survive the pleading stage. 14 B. Coercion 15 The Court previously found that Plaintiff adequately plead the coercion element 16 of its tying claims based on the assumption that Plaintiff’s definition of the tied 17 product market was limited to injection kits. PPG now argues that because Plaintiff 18 defines the tied product market more broadly—to include syringes and cans as well as 19 injection kits—its coercion claim must fail, because PPG must sell aerospace sealant 20 in some type of packaging. (Mot. 34.) Plaintiff, however, does not define the tied 21 product market to include all packaging. Rather, Plaintiff alleges that PPG improperly 22 seeks to control both the markets for aerospace sealant and end-user packaging by 23 forcing consumers to buy both products from them. 24 As explained in the previous Order: PPG has significant leverage over its 25 customers to dictate the terms on which they must purchase sealant. The facts in the 26 complaint plausibly show that PPG’s anti-repackaging policy coerces resellers to 27 purchase injection kits, syringes, or cans from PPG with the sealant. Resellers, who 28 flourished in the retail distribution market by satisfying the end-user’s need for pre- 9 1 filled injection kits, can no longer provide this service due to PPG’s anti-repackaging 2 policy. So, consumers are forced to buy both the sealant and the kits/syringes/cans 3 from PPG. These allegations are sufficient to plead coercion. See Collins Inkjet 4 Corp. v. Eastman Kodak Co., 781 F.3d 264, 272 (6th Cir. 2015) (“When a defendant 5 adopts a policy that makes it unreasonably difficult or costly to buy the tying product 6 (over which the defendant has market power) without buying the tied product from the 7 defendant, it ‘forces’ buyers to buy the tied production from the defendant and not 8 from competitors.”). 9 C. Whether Tying and Tied Products are Distinct 10 PPG also argues that Plaintiff’s tying and tied products, as alleged, are not 11 distinct products, because aerospace sealant must be sold in some type of packaging. 12 (Mot. 7–8.) As explained above, however, Plaintiff does not define the tied product to 13 include all types of packaging. In its SAC, Plaintiff distinguishes end-user packaging 14 from the larger, wholesale packaging such as 50-gallon drums. (SAC ¶ 64.) 15 PPG also contends that the two products are not separate because Plaintiff does 16 not allege that the injection kits/syringes/cans are ever sold without aerospace sealant. 17 (Mot. 8.) Whether the end-user packaging and the aerospace sealant are two separate 18 products is undeniably a close question, because one of the component parts of the 19 end-user packaging, as defined by Plaintiff, is always aerospace sealant. Neither party 20 cites a case on all fours with the facts presented here. 21 Therefore, the Court applies the test articulated by the Supreme Court in 22 Jefferson Parish. The Supreme Court held that “the answer to the question whether 23 one or two products are involved” does not turn “on the functional relation between 24 them, but rather on the character of the demand for the two items.” 25 Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 16 (1984). In other words, the mere fact that 26 two items are complements, that “one . . . is useless without the other,” does not make 27 them a single “product” for purposes of tying law. United States v. Microsoft Corp., 28 253 F.3d 34, 86 (D.C. Cir. 2001) (citing Jefferson Parish, 466 U.S. at 2). Instead, the 10 Jefferson Parish 1 primary inquiry is whether the seller has foreclosed competition on the merits in a 2 product market distinct from the market for the tying item. Jefferson Parish, 466 U.S. 3 at 21. This is what PPG has done here. With its anti-repackaging policy, PPG 4 attempts to foreclose competition in the market of selling sealants in injection 5 kits/syringes/cans and that market is separate from the market for wholesale sealant. 6 Plaintiff has adequately pleaded that there is sufficiently distinct demand for end-user 7 packaging separate from the demand for aerospace sealant. 8 D. Harm to Competition 9 PPG argues that Plaintiff’s tying claim must fail because it has failed to allege 10 injury to competition in the market for the tied product. (Mot. 8.) In its previous 11 Order, the Court dismissed Plaintiff’s tying claim, in part, because Plaintiff had failed 12 to demonstrate a “plausible link between reduced competition in the retail distribution 13 market and reduced competition in the [end-user packaging] market.” (Order 16.) 14 “The injury caused by an unlawful tying arrangement is ‘reduced competition in 15 the market for the tied product.’” Blough v. Holland Realty, Inc., 574 F.3d 1084, 16 1089 (9th Cir. 2009) (quoting Rick-Mik Enters., 532 F.3d at 971). “Thus, the inquiry 17 is ‘whether a total amount of business, substantial enough in terms of dollar-volume 18 so as not to be merely de minimis, is foreclosed to competitors by the tie.’” Id. 19 (quoting Fortner Enters., Inc. v. U.S. Steel Corp., 394 U.S. 495, 501 (1969)). “[A] 20 plaintiff must allege and ultimately prove facts showing a significant negative impact 21 on competition in the tied product market.” Sidibe, 4 F. Supp. 3d at 1179 (internal 22 quotation marks omitted). 23 The Court finds that Plaintiff has corrected the deficiency addressed in the 24 previous Order and has adequately alleged harm to competition in the tied-product 25 market. Plaintiff alleges: As a result of PPG Aerospace’s prohibition on repackaging, a non-insubstantial volume of the sale of non-PPF injection kits, syringes, and cans has decreased because reseller purchasers reasonably do not want to risk being cut-off from 26 27 28 11 what is effectively their sole source of supply for aerospace sealants by running afoul of the repackaging prohibition. In the absence of repackaging, these resellers have no need for injection kits, syringes, and cans, because they previously purchased those items as part of the repackaging process that end-users demanded. 1 2 3 4 5 (SAC ¶ 74.) Plaintiff also alleges that “purchasers were compelled to purchase the 6 end-user packaging from PPG [] in order to obtain PPG [] sealants when, absent the 7 prohibition, they could and often would have purchased the two products separately.” 8 (Id. ¶ 73.) As a result, Plaintiff alleges that PPG’s “conduct in tying the sale of 9 aerospace sealant to the sale of end-user packaging affected the tens of millions of 10 sales made to repackaging resellers like [Plaintiff], as well as the hundreds of millions 11 of sales made in the market for the distribution of aerospace sealants annually.” (Id. 12 ¶ 76.) These allegations, taken together, are sufficient to plead harm to competition 13 and allow Plaintiff to survive the pleading stage. 14 V. 15 16 CONCLUSION For the reasons discussed above, the Court DENIES PPG’s Motion. (ECF No. 34.) 17 18 IT IS SO ORDERED. 19 20 21 22 23 February 6, 2018 ____________________________________ OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE 24 25 26 27 28 12
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