case 2:12-md-02328-ssv-jcw document 500-6 filed … products- exhibit e...case 2:12-md-02328-ssv-jcw...

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Case 2:12-md-02328-SSV-JCW Document 500-6 Filed 11/24/14 of 14

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

IN RE: POOL PRODUCTS DISTRIBUTION * MDL NO. 2328

MARKET ANTITRUST LITIGATION *

* SECTION R/2

Tins DOCUMENT RELATES TO: **

Kistler, et ah v. Pool Corporation, et al, * JUDGE VANCE

No. 12-1284 (Indirect Purchaser Plaintiffs) * MAG. JUDGE WILKINSON

DECLARATION OF

THOMAS J.H. BRILL

COMES NOW Thomas J.H. Brill, being of sound mind and lawful age, and subject to the

penalties for perjury deposes and states as follows:

1. I am Thomas H. Brill, the managing partner of the Law Office of Thomas H. Brill

located in Leawood, Kansas, whose career spans more than thirty-nine (39) years as a trial

lawyer, specializing in antitrust and consumer class and opt-out litigation. I am Indirect

Purchaser Plaintiffs' Liaison Counsel, as appointed by the Court, in this case and Lead Counsel

for the putative Class. I have personal knowledge of the matters declared herein.

Oualifications and Experience as Class Counsel

2. I have an extensive track record of successful litigation throughout the United

States and, particularly, in the country's federal and state court systems, including Kansas,

Missouri, California, Texas, Tennessee, and elsewhere. I have been involved in the following

antitrust or consumer class actions in varying roles and 1 have extensive experience in the

resolution ofclass action matters that have proven beneficial to class members:


A. In Re: Lithium Ion Batteries Antitrust Litig., MDL No. 2420 (N.D. Ca.2013);

B. Oliver, et at. v. SD-3 LLC, Panasonic, Toshiba, et al. (N.D. Ca. 2012) (SDMemory Cards);

C. Tessandori, et al v. Dairy Farmers ofAmerica, Inc. (Cir. Ct. Jackson Co.,Missouri 2012);

D. Williams, et al v. Dairy Farmers of America, Inc. (Seward Co., Kansas2012);

E. Balxr, et al v. Leggett & Platt, Inc. (Cir. Ct. Jackson Co., Missouri 2012);

F. In re: TFT-LCD (Flat Panel) Antitrust Litigation, MDL No. 1827 (N.D. Ca.2007);

G. Leggett, et al v. Duke Energy Corporation, et al (Somerville, Tenn. 2005)(Natural Gas Antitrust Litigation);

H. Hammond v. Lowe's Home Centers, Inc. (D. Kan. 2002) (Fair LaborStandards Act Litigation);

I. Bunker Glass Company v. Pilkington, pic (206 Ariz. 9, 75 P.3d 99) (2003)(Arizona Flat Glass Antitrust Litigation) (Establishing indirect purchaserstanding under Arizona Antitrust Act);

J. Williams Foods, Inc. v. Eastman Chemical Company, et al (JohnsonCounty, Kan. 1999) (Kansas Sorbates Antitrust Litigation);

K. Foster v. Microsoft Corporation (Wyandotte County, Kan. 2000) (KansasMicrosoft Antitrust Litigation);

L. Havens Protected "C" Clamps, Inc. v. Pilkington pic, et al (WyandotteCounty, Kan. 1999) (Kansas Flat Glass Antitrust Litigation);

M. Piggly Wiggly Clarksville, Inc. v. Mrs. Baird's, Flowers Industries, et al(E.D. Tex. 1995) (Texas Bread Antitrust Litigation);

N. Harms v. Koch Gathering Systems, Inc., et al (Neuces County, Tex. 1995)(Corpus Christi Oil Spill Litigation);

O. In Re: Commercial Tissue Products Antitrust Litig. (N.D. Fla. 1997);

P. Carl Engwell v. Amerada Hess Corporation, Amoco Production Company,et al (Chaves County, N.M. 1995) (Royalty Owner/Payment Litigation);


Q. In Re: Carpet Antitrust Litig. (N.D. Ga. 1995);

R. In Re: Brand Name Prescription Drugs Antitrust Litig. (N.D. 111. 1995);

S. In Re: Drill Bits Antitrust Litig. (S.D. Tex. 1994);

T. ACISecurities Litig. (D. Kan. 1994) (Securities Fraud);

U. In Re: Municipal BondSecurities Litig. (E.D. La. 1994);

V. In Re: Catfish Antitrust Litig. (N.D. Miss. 1993);

W. In Re: Carbon Dioxide Antitrust Litig. (M.D. Fla. 1993);

X. French v. Abbott Laboratories, Bristol-Meyers Squibb Company, et al.(Milwaukee County, Wi. 1994) (Wisconsin Infant Formula AntitrustLitigation);

Y. In Re: Plastic Tableware Antitrust Litig. (E.D. Pa. 1994);

Z. In Re: Aluminum Phosphide Antitrust Litig. (D. Kan. 1994);

AA. L.L. Harris Wholesale Grocery v. Miles, Inc., et al. (N.D. 111. 1993)(Scouring Pads Antitrust Litigation);

BB. Naz-Dar Company v. United States Bronze Powders, Inc., et al. (E.D. N.J.1993) (Bronze and Copper Flakes Antitrust Litigation);

CC. Kansas v. Utilicorp United, Inc., 497 U.S. 199 (1990);

DD. In Re: Flight Transportation Corporation Securities Litig. (D. Minn. 1982)(Securities Fraud);

EE. In Re: Concrete and Cement Antitrust Litig. (D. Ariz. 1979);

FF. In Re: Corrugated Container Antitrust Litig. (S.D. Tex. 1978);

GG. In Re: Folding Cartons Antitrust Litig. (N.D. 111. 1977);

HH. In Re: PlywoodAntitrust Litig. (E.D. La. 1976);

II. In Re: Sugar Industry Antitrust Litig. (N.D. Calif. 1976);

JJ. In Re: Petroleum Products Antitrust Litig. (S.D. Calif. 1974) (RepresentingState of Kansas); and


KK. In Re: Master Key Antitrust Litig. (E.D. Conn. 1975) (Representing State ofKansas).

I have led and coordinated the broad scope of the pending litigation on behalf of Indirect

Purchaser Plaintiffs ("IPPs"), which litigation has involved discovery of hundreds of thousands

of pages of documents, numerous depositions across the country, and multiple hearings and

discovery conferences.

Relevant and Significant Factors in Settlement of Claims

3. IPPs have discovered evidence of Pool Corporation activities that violate State

antitrust, unfair competition, and consumer protection laws. IPPs claim that Zodiac Pool

Systems, Inc. ("Zodiac") furthered the alleged illegal activities by entering into imlawful vertical

agreements with Pool Corporation for the purposes of raising, fixing, maintaining, and/or

stabilizing the price of Pool Products in the Pool Product Distribution Market at artificially high

levels and in violation of certain State antitrust, unfair competition and consumer protection

laws.

4. Substantial discovery, document production and review, and motion practice now

have been completed in this litigation. All fact and class certification discovery closed February

10, 2014. Expert reports of Direct Purchaser Plaintiffs ("DPPs"), IPPs, and defendants were

exchanged on April 10, 2014. The Parties have conducted more than eighty (80) fact

depositions, and six expert depositions are scheduled to take place in the near future. Defendants

have produced over 500,000 pages of documents, consisting of their business records and

documents produced to the Federal Trade Commission. The Parties have engaged in extensive

motion practice addressing common issues. This motion practice included 12(b)(6) motions by

the defendants, which resulted a dismissal of fi-aud, misrepresentation, and fi^udulent


concealment claims, limiting the potential recovery for IPPs. As such. Class Counsel is in a

reasonable position to assess the factual and legal merits and weakness of the IPPs claims and

Zodiac's defenses.

5. In July 2013, the parties engaged a mediator. Retired Judge Layn Phillips, to

assist with a possible resolution of this case. One or more IPP counsel, myself included,

attended two full-day mediation sessions in Chicago and New York City. I have had numerous

telephone conversations with Ret. Judge Phillips regarding settlement with the defendants,

including Zodiac. Expert depositions, additional dispositive motion practice, and class

certification briefing were quickly approaching at the time of settlement. The settlement

negotiations with counsel for Zodiac have been at arms' length, adversarial, and characterized by

the vigorous presentation ofopposing positions in the litigation.

6. IPPs face significant hurdles with respect to proof of Zodiac's participation in a

class-wide and continuing conspiracy with Pool Corporation.

7. IPPs also are faced with burden of proof issues with respect to pass-through

damages. Although IPPs feel that the law and science of economics is supportive of the pass-

through theory, proof of this damage is necessarily tied to the damages provable by DPPs and

information available on pass-through of damages in the respective jurisdiction. Even after the

voluminous discovery that has taken place, hurdles remain with respect to proof of liability and

damages.

8. Briefing on FRCP Rule 23, FRCP Rule 56, and Daubert motions are currently

due to be filed on November 24, 2014, and hearings on these motions, including a multi-day

litigation class certification hearing, are expected to be held in early 2015. The litigation will


eventually require a class trial on the merits and a trial on class damage issues. The cost of such

proceedings will be significant, especially given the necessity ofexpert testimony.

9. As a result of the extensive litigation now completed or in progress, including

motion practice, depositions, and discovery, Class Counsel have become aware of: (a) the merits

of the Action or the lack thereof; (b) the relative strengths and weaknesses of the IPPs' claims,

including the issues of liability, causation, pass-on and damages; (c) the time, expense and effort

necessary to maintain and conclude the Action as the term is defined in the Settlement

Agreement; (d) the possibilities of success weighed against the possibilities of loss; (e) the range

of potential judgment values, if any should be awarded; (f) the legal complexities of the

contested issues in the Action; (h) the risks inherent in protracted litigation; (i) the magnitude of

benefits to be gained from an inunediate settlement, in light of both the maximum potential of a

favorable outcome and the attendant expense and likelihood of an unfavorable outcome; and (j)

the fairness of benefits to or from an immediate settlement under all of the foregoing

considerations. Class Counsel for the IPPs have evaluated these considerations fully and fairly,

for the benefit of all IPPs.

10. In light of the foregoing, Class Counsel believes that the establishment of the

proposed Settlement Fund and Subclasses, and the management thereof under the supervision of

the Court, will resuh more likely in the greatest benefit to the potential Class Members in the

Action, as compared to the alternative ofcontinued litigation activity.

11. Each claimant will be asked to provide certain information that will establish

membership in the class and eligibility for a distribution, subject to the analysis and

recommendations of the Special Master and ultimate approval by the Court.


Affiant's Conclusion and Opinion as to Proposed Sctflcment

12. Comparing the benefits of the proposed settlement to Class Members with the less

certain range of possible recoveries and significant litigation risks, particularly in light of the

necessary and significant future costs of expert witnesses if each class were litigated to final

judgment, it is my conclusion and opinion that the proposed settlement is fair, adequate and

reasonable for the Class and the Class Members. ,

Dated:Ip)THOMAS j.H. ^RILL


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