`Case: 3:22-cv-50030 Document #: 1 Filed: 02/07/22 Page 1 of 43 PagelD #:1
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF ILLINOIS
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`WESTERN DIVISION
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`PLUM RIDGE FARMS,LTD.,
`individually and on behalf of all others
`sunilarly situated,
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`Plaintiff
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`V.
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`DEERE & CO.(d/b/a JOHN DEERE),
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`Defendant.
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`Case No.
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`CLASS ACTION COMPLAINT
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`JURY TRIAL DEMAND
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`Case: 3:22-cv-50030 Document #: 1 Filed: 02/07/22 Page 2 of 43 PageID #:2
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`TABLE OF CONTENTS
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`I.
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`NATURE OF ACTION………………………………………………………………….3
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`II.
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`JURISDICTION AND VENUE……………………………………………………...….7
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`III.
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`PARTIES…………………………………………………………………………………8
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`A.
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`Plaintiff……………………………………………………………………………8
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`B.
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`Defendant & Co-Conspirators…………………………………………………..9
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`IV.
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`TRADE AND COMMERCE…………………………………………………………....9
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`V.
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`RELEVANT MARKETS……………………………………………………………....10
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`VI.
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`FACTUAL ALLEGATIONS…………………………………………………………..11
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`A.
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`Technology in John Deere Tractors…………………………………………...11
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`B.
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`C.
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`D.
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`E.
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`F.
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`Deere’s Promise – and Failure – To Provide the Full Spectrum of Repair
`Tools…………………………………………………………………………......16
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`To the Extent Deere Has Made Diagnostic and Repair Tools Available,
`They Are Insufficient to Restore Competition to the Deere Repair Services
`Market…………………………………………………………………………...22
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`There Are No Legitimate Reasons to Restrict Access to Necessary Repair
`Tools……………………………………………………………………………..24
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`Deere Has Not Provided Farmers and Independent Repair Shops with
`the Necessary Software and Continues to Misrepresent the Issue………......26
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`Defendant’s Monopolization of the Deere Repair Services Market Has
`Led to Artificially High Prices and Record Profits for John Deere………....27
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`VII. CLASS ACTION ALLEGATIONS……………………………………………….......29
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`VIII. ANTITRUST INJURY……………………………………………………………...….31
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`IX. CLAIMS FOR RELIEF………………………………………………………………..32
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`X.
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`REQUEST FOR RELIEF……………………………………………………………...41
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`XI.
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`JURY TRIAL DEMANDED………………………………………………………...…43
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`2
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`Plaintiff alleges upon personal knowledge as to itself and its own actions, and upon
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`information and belief, including the investigation of counsel as follows:
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`I. NATURE OF ACTION
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`1.
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`This case is about John Deere’s monopolization of the repair service market for
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`John Deere (“Deere”) brand agricultural equipment with onboard central computers known as
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`engine control units, or “ECUs.” Farmers have traditionally had the ability to repair and maintain
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`their own tractors as needed, or else have had the option to bring their tractors to an independent
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`mechanic. However, in newer generations of its agricultural equipment, Deere has deliberately
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`monopolized the market for repair and maintenance services of its agricultural equipment with
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`ECUs (“Deere Repair Services”) by making crucial software and repair tools inaccessible to
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`farmers and independent repair shops. Furthermore, Deere’s network of highly-consolidated
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`independent dealerships (the “Dealerships”) is not permitted through their agreements with Deere
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`to provide farmers or repair shops with access to the same software and repair tools the Dealerships
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`have. As a result of shutting out farmers and independent repair shops from accessing the necessary
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`resources for repairs, Deere and the Dealerships have cornered the Deere Repair Services Market
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`in the United States for Deere-branded agricultural equipment controlled by ECUs and have
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`derived supracompetitive profits from the sale of repair and maintenance services.
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`2.
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`This is an antitrust class action pursuant to Sections 1 and 2 of the Sherman Act (15
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`U.S.C. §§ 1, 2) brought by Plaintiff Plum Ridge Farms, Ltd. on its own behalf and on behalf of a
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`class of persons and entities similarly situated. Plaintiff seeks to represent those persons and
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`entities who purchased repair services from Defendant Deere and Co. (d/b/a John Deere) and
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`Deere- affiliated independent Dealerships and technicians in the Deere Repair Services Market for
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`Deere agricultural equipment from February 7, 2018 to the present.
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`3
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`3.
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`John Deere is indisputably the biggest player in agricultural machinery markets in
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`the United States. Deere wields significant economic power in the market for large tractors and
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`combine tractors in North America1 and has a larger market share than that of the next two biggest
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`tractor makers, Case New Holland and Kubota Corp., combined.2
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`4.
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`Modern John Deere tractors, combines, and other agricultural equipment with
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`ECUs (collectively referred to herein as “Tractors”) have grown increasingly technologically
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`advanced. Tractors manufactured in the last two decades now require proprietary software and
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`associated repair tools (collectively referred to as “Software”) to perform or complete many
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`repairs. For example, an owner of a Tractor may be able to replace the transmission on their
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`equipment, but that Tractor will not operate unless proprietary John Deere Software “approves”
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`the newly-installed part. A farmer or mechanic may have the necessary mechanical parts,
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`knowledge, and the skill to repair a Tractor, but without access to the Software, the repair is not
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`recognized by the Tractor’s ECU, making the repair ineffective and the Tractor still unable to
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`function properly.
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`5.
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`Despite the use of, and access to, this Software being essential to the continued
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`functionality of its Tractors, Deere has deliberately made this necessary Software unavailable to
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`individual owners and independent repair shops. Instead, Deere makes the full Software available
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`only to Deere Dealerships and technicians, who are not permitted by Deere to sell it or to provide
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`it.
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`1 Jennifer Reibel, Manufacturer Consolidation Reshaping the Farm Equipment Marketplace,
`Farm Equipment (Aug. 29, 2018), https://www.farm-equipment.com/articles/15962-
`manufacturer-consolidation-reshaping-the-farm-equipment-marketplace.
`2 Peter Waldman & Lydia Mulvany, Farmers Fight John Deere Over Who Gets to Fix an
`$800,000 Tractor, Bloomberg Businessweek (Mar. 5, 2020),
`https://www.bloomberg.com/news/features/2020-03-05/farmers-fight-john-deere-over-who-gets-
`to-fix-an-800-000-tractor.
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`4
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`6.
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`Historically, farmers who owned Deere Tractors have had the option of repairing
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`their Tractors themselves or taking them to an independent repair shop of their choosing.
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`By making the Software unavailable, for all practical purposes, Deere has succeeded in foreclosing
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`competition in the multi-billion dollar Deere Repair Services Market.
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`7.
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`Deere is highly motivated to prevent competition, either from independent repair
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`shops selling Deere Repair Services, or from farmers with the knowledge and skills to perform
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`their own repairs. Deere’s business for its Repair Services is three to six times more profitable than
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`its sales of original equipment.
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`8.
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`Deere’s monopolization of the Deere Repair Services Market allows Deere and the
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`Dealerships to charge and collect supracompetitive prices for its services every time a piece of
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`equipment requires the Software to diagnose or complete a repair. Consequently, Plaintiff and
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`Class members have paid millions of dollars more for the repair services than they would have
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`paid in a competitive market.
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`9.
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`John Deere has demonstrated that it understands that farmers have a right to repair
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`their own Tractors, while at the same time misleading the public regarding how easy it is for
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`farmers or independent repair shops to perform repairs.
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`10.
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`After a trade group representing Deere made a highly-publicized promise in 2018
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`to make the necessary Software and tools available by January 2021, Deere has failed to follow
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`through on this promise. In 2021, multiple investigative journalists attempted to determine whether
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`the Software was available. The Dealerships’ response was that they did not sell the Software, or
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`that it was only available to licensed dealers, and the Dealership was not allowed to sell it to anyone
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`else.3
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`3 Jason Koebler & Matthew Gault, John Deere Promised Farmers It Would Make Tractors Easy
`to Repair. It Lied., Vice Motherboard (Feb. 18, 2021),
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`5
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`11.
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`Deere continues to exploit its relationship with customers who have purchased
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`extremely expensive Tractors, locking customers into paying for expensive and inconvenient
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`Repair Services from Deere and its Dealerships. Deere has created an effective tying arrangement,
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`whereby the purchase of Deere Repair Services is tied to the initial purchase of Deere Tractors.
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`12.
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`The motive behind restricting access to the Software is simple: Deere and its
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`Dealerships did not want their revenue stream from service and repair—a far more lucrative
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`business than original equipment sales—to end when the equipment is purchased, as it often did
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`in the past when owners could, and did, perform their own repairs or rely on individual repair
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`shops.
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`13.
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`Deere’s scheme to prevent independent repairs creates additional revenue for Deere
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`over the entire useful life of every piece of equipment it sells.
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`14.
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`Deere unlawfully stifles competition by blocking independent repair shops and
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`reducing consumer choice in what would otherwise be a robust and competitive repair aftermarket,
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`thereby artificially increasing Deere Repair Services prices to supracompetitive levels.
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`15.
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`As a result of Deere’s unlawful withholding of the necessary Software to perform
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`repairs from farmers and independent repair shops. Plaintiff and the Class paid artificially inflated
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`prices for Deere Repair Services during the Class Period. Prices in the Repair Services Market
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`exceeded the amount they would have paid if the prices had been determined by a competitive
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`market. Plaintiff and Class members were therefore injured by Defendant’s conduct.
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`16.
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`Deere’s illegal monopoly of the Deere Repair Services Market should be enjoined
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`and dismantled, and Plaintiff and the Class should be reimbursed by Deere for the amount they
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`overpaid for Deere Repair Services.
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`https://www.vice.com/en/article/v7m8mx/john-deere-promised-farmers-it-would-make-tractors-
`easy-to-repair-it-lied.
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`6
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`17.
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`Deere violated Section 1 of the Sherman Act through its arrangements with Co-
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`conspirator Dealerships to not sell the Software to farmers and independent repair shops. Deere
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`also violated Section 1 of the Sherman Act through forcing Plaintiff and Class Members to purchase
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`Deere Repair Services from Deere once they were locked into ownership of an expensive Deere
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`Tractor. Deere’s tying arrangement between Deere Tractors and Repair Services had both the intent
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`and effect of harming competition in the market for Deere Repair Services.
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`18.
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`Deere also violated Section 2 of the Sherman Act by monopolizing or attempting
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`to monopolize the Deere Repair Services Market in a manner that harmed competition and injured
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`the purchasers of such services by reducing choice and increasing prices in this market to
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`supracompetitive levels. Deere has also leveraged its monopoly power over Deere Software to tie
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`sales of its Tractors to sales of Deere Repair Services, in violation of Section 2 of the Sherman
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`Act.
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`19.
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`Deere has unjustly enriched itself by profiting from Plaintiffs’ payment of
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`supracompetitive prices for Deere Repair Services in violation of the antitrust laws and should be
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`made to disgorge these profits.
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`20.
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`Plaintiff seeks declaratory and injunctive relief, treble and exemplary damages,
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`costs, and attorneys’ fees. As for equitable relief, Plaintiff seeks an order requiring Deere to make
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`the necessary Software available, at reasonable cost, to individuals and repair shops.
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`II. JURISDICTION AND VENUE
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`21.
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`Plaintiff brings this action on behalf of itself and the Class under Section 16 of the
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`Clayton Act (15 U.SC. § 26) to secure injunctive relief against Defendant for violating Sections 1
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`and 2 of the Sherman Act (15 U.S.C. §§ 1 and 2), and to recover actual and compensatory damage,
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`treble damages, interest, costs and attorneys’ fees for the injury caused by Defendant’s conduct.
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`7
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`22.
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`This Court has subject matter jurisdiction under 28 U.S.C. §§ 1331, 1337 and
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`Sections 4 and 16 of the Clayton Act, 15 U.S.C. §§ 15(a) and 26.
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`23.
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`This Court also has subject matter jurisdiction pursuant to 28 U.S.C. § 1332(d)(2)
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`because sufficient diversity of citizenship exists between parties in this action in the class members
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`are disbursed throughout the United States, the aggregate amount in controversy exceeds
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`$5,000,000, exclusive of interest and costs, and there are 100 or more members of the proposed
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`class.
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`24.
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`Venue is appropriate in this District pursuant to Sections 4, 12, and 16 of the
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`Clayton Act, 15 U.S.C. 28 U.S.C. §15(a), and 28 U.S.C. § 1391(b), (c) and (d) because Defendant
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`Deere & Company transacted business in this District, is licensed to do business or is doing
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`business in this District, and because a substantial portion of the affected interstate commerce
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`described herein was carried out in this District.
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`25.
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`The activities of Defendant as described herein, were within the flow of, were
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`intended to, and did have direct, substantial, and reasonably foreseeable effects on the foreign and
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`interstate commerce of the United States.
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`III. PARTIES
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`A. Plaintiff
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`26.
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`Plaintiff Plum Ridge Farms, Ltd. is an Illinois corporation located Elizabeth,
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`Illinois. Plaintiff Plum Ridge Farms, Ltd. owns four John Deere tractors with ECUs: a 8R400, a
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`8320R, a 6155M, and a 8235R. During the Class Period, Plaintiff Plum Ridge Farms, Ltd.
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`purchased Deere Repair Services in Illinois, specifically this District, from a John Deere dealership
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`to diagnose and repair Tractor malfunctions and suffered antitrust injury as a result of Defendant’s
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`conduct alleged herein.
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`8
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`B. Defendant & Co-Conspirators
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`27.
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`28.
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`Deere & Co. is a publicly-traded company headquartered in Moline, Illinois.
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`“Defendant” as used herein, includes, in addition to those identified specifically
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`above, all of the named Defendant’s predecessors, including companies that merged with or were
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`acquired by the named Defendant, as well as Defendant’s wholly-owned or controlled subsidiaries,
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`dealerships, affiliated and/or authorized technicians, and/or Co-conspirators that sold Deere Repair
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`Services in interstate commerce, directly or through its wholly-owned or controlled affiliates, to
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`purchasers in the United States during the Class Period.
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`29.
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`Co-conspirators include independently-owned dealerships with agreements with
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`Deere giving them the right to sell Deere Tractors and Deere Repair Services. Based on recent
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`data, out of the 1,544 Dealerships affiliated with Deere, 91% of these Dealerships are owned by a
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`“Big Dealer,” i.e., a dealer that owns 5 or more individual locations. Although not an exhaustive
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`list, the largest Dealership groups are Ag-Pro Companies (75 locations in 8 states), United Ag &
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`Turf (53 locations in 6 states), C&B Operations (36 locations in 6 states), Papé Machinery (35
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`locations in 5 states); RDO Equipment (32 locations in 9 states); Brandt Holdings (32 locations in
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`5 states); Greenway Equipment (31 locations in 2 states); Van Wall Group (31 locations in 4
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`states); and Quality Equipment (28 locations in 2 states).
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`IV. TRADE AND COMMERCE
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`30.
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`During the Class Period, Defendant, directly or through its subsidiaries or affiliated
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`Dealerships, sold Deere Repair Services in the United States in a continuous and uninterrupted
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`flow of interstate commerce and foreign commerce, including through and into this judicial
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`district.
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`31.
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`During the Class Period, Defendant controlled all of the market for Deere Repair
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`Services in the United States.
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`32.
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`Defendant’s business activities substantially affected interstate trade and commerce
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`in the United States and caused antitrust injury in the United States.
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`V. RELEVANT MARKETS
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`33.
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`Deere Repair Services Market. The principal relevant market to evaluate
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`Defendant’s anticompetitive conduct is the Deere Repair Services Market.
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`34.
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`The Deere Repair Services Market constitutes various services and labor to repair,
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`maintain, and clear fault codes from Deere Tractors.4
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`35.
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`There are no available substitutes for Deere Repair Services, and Deere Repair
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`Services are not interchangeable with any other manufacturers’ service.
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`36.
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`37.
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`The relevant geographic market is the United States.
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`Defendant Deere has market and monopoly power in the relevant market through
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`its control over access to the Software.
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`38.
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`Any independent repair shops who desire to compete with Deere in the Deere
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`Repair Services Market would face insurmountable barriers. Defendant’s effective total control of
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`the Software means that independent repair shops are unable to access the necessary resources to
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`be able to meaningfully compete with Deere. Similarly, any farmers who wish to perform their
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`own repairs and/or maintenance are also unable to access the resources necessary to do so.
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`39.
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`Independent repair shops and farmers cannot compete effectively in the Deere
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`Repair Services Market without access to the Software.
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`4 As defined supra, Deere “Tractors” for purposes of this litigation include all John Deere
`tractors, combines, and other agricultural equipment with ECUs.
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`40.
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`Deere Software Market. As discussed above, Defendant maintains market and
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`monopoly power over the market for Deere Software. There is no available substitute for Deere
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`Software, and it is not interchangeable with any other manufacturers’ product.
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`41.
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`Tractor Markets. The Deere Repair Services market and the market for Tractors
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`are distinct. The “Tractor Markets” include the United States product markets for agricultural farm
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`tractors, which include 2WD Farm Tractors, Compact Tractors, 4WD Farm Tractors, Row Crop
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`Tractors, Scraper Tractors, Specialty Tractors, Utility Tractors, and Self-Propelled Combines.
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`Defendant Deere is the largest agricultural machinery company in the world and has appreciable
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`economic power in the U.S. Tractor Markets.
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`VI. FACTUAL ALLEGATIONS
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`42.
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`Farmers traditionally and historically have been able to perform their own repairs
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`on their own tractors. However, as software has becoming increasingly intertwined with basic
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`operations of farming equipment, John Deere has restricted access to the necessary tools to make
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`repairs, thereby cutting out owners and independent repair shops from the ability to make repairs
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`to newer equipment.
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`A. Technology in John Deere Tractors
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`43. Modern Deere Tractors are technologically complex machines. These Tractors run
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`firmware that is necessary for the Tractor to perform its basic functions. Without the firmware, the
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`product is incomplete and will not run, making the firmware as vital a part to the basic functioning
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`of a Tractor as a steering wheel or an engine. The code that runs the internal engine and the
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`transmission components that are required to make the Tractor do anything are effectively part of
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`the machine. The Tractors will not operate without that code.
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`44.
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`The central computer on a Tractor is the Engine Control Unit, or “ECU.” The ECU
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`11
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`determines how—and if—the Tractor functions.
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`45.
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`Like cars, John Deere Tractors use a large number of sensors throughout the
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`equipment that are constantly monitored by the ECU. When a sensor notices an error, no matter
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`how small or serious, it can put the machine into “limp mode,” allowing farmers to move the
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`machine slowly but not operate it fully. When the problem is diagnosed and repaired, the error
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`code is cleared and the machine can continue working.5
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`46.
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`According to a report from a U.S. Public Interest Research Group, the John Deere
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`S760 combine harvester has 125 different computer sensors in it. If any one of those sensors throws
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`an error code, the combine will enter limp mode.
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`47.
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`Troubleshooting Deere Tractors—e.g., interpreting the error codes—requires
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`Software that Deere refuses to make available to farmers or independent repair shops.
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`48.
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`Since about 2000, Deere Tractors began using what is known as “CAN bus”
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`systems in their machinery, standing for Controller Area Network. CAN bus is essentially a central
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`electrical system that allows communications between different parts of the machinery. Sales
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`manuals for Deere Tractors explain that an advantage of the system “allows the technician at the
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`dealership to plug into the system using the Service ADVISOR™ computer program. The Service
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`ADVISOR program links up to the tractor’s electrical system to read the communications between
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`the controllers to determine where the problem is located and how it can be fixed.”6
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`49.
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`Service ADVISOR, per John Deere’s own sales manual materials, is:
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`a tool used by John Deere dealerships capable of providing technical and
`mechanical support for technicians and service managers through the use of a
`laptop computer. Service ADVISOR provides symptom-based diagnostics
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`5 Koebler & Gault, supra note 3.
`6 See John Deere & Co Sales Manual, Electrical, CAN bus electrical system (2017),
`https://www.dot.state.oh.us/Divisions/ContractAdmin/Contracts/PurchDocs/207-
`19/DeerComp01/6110M%20Product%20Info.pdf.
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`information, specific machine information, and electronic technical information. It
`also offers a connection to John Deere help and solutions through an extranet
`connection at the workshop and in the field.
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`Service ADVISOR is a fast diagnostic testing system for all controller area network
`(CAN) bus tractors. This system is the cutting edge of service technology and will
`save time and money by faster equipment repair.
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`(emphasis added).
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`50.
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`Even if the farmer is able to interpret the error code and determine what the problem
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`is with the Tractor, it doesn’t matter how tech-savvy or experienced a mechanic the farmer is;
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`without access to the necessary software tools, the farmer must call the dealership to repair, or
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`clear fault codes for, their machine.
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`51.
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`Farmers report their Tractors shutting down from computer faults and having to sit
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`and wait for a John Deere technician to arrive while they lose valuable time, which can lead to
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`expensive crop losses.
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`52.
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`Farmers in general face issues related to long wait times for Deere technicians, but
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`black farmers reported that they face disproportionately longer wait times. The National Black
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`Farmers Association (NBFA) stated that after NBFA members purchased from Deere, responses
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`for service on its equipment are followed upon more slowly compared to calls for service from
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`their white counterparts.7
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`53. Without access to the Software and other tools needed to diagnose and repair the
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`error, farmers must rely on Deere dealerships and technicians to travel to where the equipment is,
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`plug in the necessary tools, and clear the error codes.
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`7 Black Farmers’ Boycott Against John Deere Continues, Deere has Lied for Years According to
`Recent Article, National Black Farmers Association (Feb. 25, 2021),
`https://www.blackfarmers.org/blog/black-farmers-boycott-against-john-deere-continues-deere-
`has-lied-for-years-according-to-recent-article.
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`54.
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`Replacing parts on a Tractor also can result in “bricking” of the machine if the
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`proper Software is not used. After a new part is installed on a Tractor, a program called Service
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`Advisor needs to be connected to the ECU to authorize the new parts. If the new part is not
`
`“authorized” by the Software, the engine of the Tractor will not start, rendering the Tractor useless
`
`to its owner until the owner pays a Deere technician to authorize the repair and therefore restore
`
`operation of the Tractor.
`
`55.
`
`During harvest time, when Tractors, including combines, are running at full throttle
`
`for weeks on end, it’s common for mechanical issues to arise. Farmers who try to solve problems
`
`themselves or take their Tractors to more convenient repair shops are blocked from completing the
`
`repairs without the necessary Software. For example, one customer who hired an independent
`
`agricultural equipment repair shop to replace a faulty moisture meter on a combine still had to wait
`
`and pay for the John Deere dealer to come out and use Software to authorize the part.8
`
`56.
`
`As of 2021, the reported cost for Repair Services from Deere or an authorized
`
`Dealer could range from $150–$180 per hour, with additional charges for travel and parts.
`
`57.
`
`Regardless of a farmer’s own ability and knowledge regarding how to repair the
`
`Tractor they own, without the relevant Software, an authorized John Deere technician must be
`
`called to perform many repairs.
`
`58.
`
`Logistically, this is a nightmare for many farmers. When a farmer calls a dealer to
`
`perform a repair, the farmer is at the mercy of the dealer’s schedule and must pay whatever the
`
`cost is—including travel expenses—even if the problem could be fixed in 15 minutes with access
`
`to the Software. Farmers also may work far away from the nearest dealership or technician, leading
`
`
`8 Mae Anderson, Without ‘right to repair,’ businesses lose time and money, Associated Press
`(Aug. 10, 2021), https://apnews.com/article/technology-business-
`9f84a8b72bb6dd408cb642414cd28f5d.
`
`
`
`
`14
`
`
`
`Case: 3:22-cv-50030 Document #: 1 Filed: 02/07/22 Page 15 of 43 PageID #:15
`
`
`
`them to have to pay substantial amounts for travel time or the cost of having their equipment hauled
`
`to a dealership.
`
`59.
`
`Deere has made farmers dependent on Deere for repairs. Farmers, who often have
`
`a lifetime of skills built up enabling them to fix their own equipment, are forced to sit and wait for
`
`a service technician from Deere to arrive on site and charge $150 or more per hour for labor, on
`
`top of other costs.
`
`60.
`
`These additional costs paid to Deere by farmers cut into an already razor-thin profit
`
`margin on crops. Farmers in the United States are currently experiencing drastically increasing
`
`operating expenses while revenue and profits from crop yields remains stagnant. For example,
`
`between 1996 and 2020, total costs for growing corn increased by 193% while yields only
`
`increased by 13.7%. In that same period, costs for growing soybeans increased by 202% while
`
`yields increased only by 12.3%.
`
`61.
`
`As a result, farmers have had difficulty paying their outstanding operating debts—
`
`estimated at well over $400 billion in 2019—and the rate of farm bankruptcies has accelerated,
`
`with declared farm bankruptcies increasing by 24% from 2018 to 2019, the biggest yearly increase
`
`since the Great Recession.
`
`62.
`
`Furthermore, given farmers’ investments in Deere Tractors, which can run upwards
`
`of half a million dollars, they have no reasonable choice but to pay for Deere’s Repair Services.
`
`The farmers are locked in to using Deere Tractors, as switching costs are so high and farmers
`
`expect to be able to use a Tractor for decades.
`
`63. While some farmers own these expensive machines outright, many farmers lease
`
`the equipment. The leaseholder is often Deere itself, which has become the fifth-largest
`
`
`
`15
`
`
`
`Case: 3:22-cv-50030 Document #: 1 Filed: 02/07/22 Page 16 of 43 PageID #:16
`
`
`
`agricultural lender in the sector.9
`
`B. Deere’s Promise—and Failure— To Provide the Full Spectrum of Repair Tools.
`
`
`
`64.
`
`Because of how difficult and expensive Deere had made it for farmers to repair
`
`their Tractors, a growing “right to repair” movement began to focus on farmer’s rights to repair
`
`John Deere agricultural equipment.
`
`65.
`
`Deere has a history of fighting customers’ access to the onboard technology on
`
`Deere Tractors. In 2015, Deere argued that Section 1201 of the Digital Millennium Copyright Act
`
`gave it power to prevent purchasers of Deere Tractors from bypassing Technical Protection
`
`Measures (“TPMs”) “for the purposes of lawful diagnosis and repair, or aftermarket
`
`personalization, modification, or other improvement.” This was, according to Deere, because the
`
`owners did not actually own the software that made the Tractor run. Deere argued that the owner
`
`only “receives an implied license for the life of the vehicle to operate the vehicle.”10
`
`66. When this argument proved unconvincing to the U.S. Copyright Office and
`
`bypassing TPMs on agricultural equipment for the purpose of repair was deemed to be fair use,
`
`Deere took another approach to blocking farmers from accessing Tractor Software. In 2016, Deere
`
`issued an end-user “License Agreement for John Deere Embedded Software” that forbade
`
`customers from accessing, reverse-engineering, or modifying the software running on its Tractors
`
`(the “EULA”).11 Deere states it “may terminate the license [to the embedded Tractor software]
`
`
`9 Jesse Newman & Bob Tita, America’s Farmers Turn to the Bank of John Deere, Wall Street
`Journal (July 18, 2017), https://www.wsj.com/articles/americas-farmers-turn-to-bank-of-john-
`deere-1500398960.
`10 Deere & Company, Long Comment Regarding a Proposed Exemption Under 17 U.S.C. 1201,
`https://copyright.gov/1201/2015/comments-
`032715/class%2021/John_Deere_Class21_1201_2014.pdf (last accessed Jan. 4, 2022).
`11 License Agreement for John Deere Embedded Software,
`https://www.deere.com/assets/pdfs/common/privacy-and-
`data/docs/agreement_pdfs/english/2016-10-28-Embedded-Software-EULA.pdf (last accessed Jan.
`4, 2022).
`
`
`
`16
`
`
`
`Case: 3:22-cv-50030 Document #: 1 Filed: 02/07/22 Page 17 of 43 PageID #:17
`
`
`
`granted under this License Agreement . . . if you violate any material term of this License
`
`Agreement. . .”12
`
`67.
`
`As public awareness of and frustration with increasingly prohibitive repair
`
`restrictions grew, state lawmakers began to act. As of 2021, 27 states have introduced some form
`
`of “right to repair” legislation. A proposed bill in Minnesota would require manufacturers to “make
`
`available, on fair and reasonable terms, documentation, parts, and tools, inclusive of any updates
`
`to information or embedded software, to any independent repair provider or to the owner of digital
`
`electronic equipment manufactured by or on behalf of, or sold by, the original equipment
`
`manufacturer for purposes of diagnosis, maintenance, or repair.”13
`
`68.
`
`In September 2018, the Equipment Dealers Association (“EDA”), a trade and
`
`lobbying group that represents John Deere and other manufacturers and often acts as Deere’s
`
`mouthpiece, made a promise intended to stave off increasing pressure from customers and
`
`lawmakers to pass similar “right to repair” legislation pending around the country.14
`
`69.
`
`The EDA committed to make repair tools, Software, and diagnostics available to
`
`the public by January 1, 2021.15
`
`70.
`
`The EDA went so far as to put out a “Statement of Principles,” laying out this
`
`promise. In a heavily-publicized ceremony and photo op, the EDA signed a “Memorandum of
`
`Understanding” with the California Farm Bureau that enshrined this statement of principles.16
`
`
`
`12 Id.
`13 Digital Fair Repair, HF 1138, 91st Leg., 2nd Engrossment (Minn. 2020),
`https://www.revisor.mn.gov/bills/text.php?number=HF1138&type=bill&version=2&session=ls9
`1&session_year=2019&session_number=0.
`14 Koebler & Gault, supra note 3.
`15 Agreement Streamlines Repair of High-Tech Farm Equipment, Far West EDA (Sept. 9, 2018),
`https://fweda.com/industry-news/agreement-streamlines-repair-of-high-tech-equi