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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

Mike Martinez, individually, and on behalf of all others similarly situated, Plaintiff, v. Sears, Roebuck and Co., Deere & Company, Tecumseh Products Company, Briggs & Stratton Corporation, Kawasaki Motors Corp. USA, MTD Products Inc., The Toro Company, American Honda Motor Company, Inc., Electrolux Home Products, Inc., Kohler Co., Platinum Equity, LLC, and Husqvarna Outdoor Products, Inc. Defendants. Case No. _________________

CLASS ACTION COMPLAINT JURY TRIAL DEMANDED

Plaintiff by his undersigned counsel, on behalf of himself and classes of those similarly situated, brings this action against Defendants and alleges the following based upon personal knowledge of the allegations pertaining to Plaintiff, and upon information, belief and the investigation of counsel as to all other allegations. I. 1. NATURE OF THE CASE

For more than a decade, Defendants have lied to consumers by overstating the

horsepower of lawn mower engines. In advertising and selling their lawn mowers and lawn mower engines, Defendants have defrauded the public by: (1) misrepresenting and significantly overstating the horsepower produced by such products, (2) concealing, suppressing and failing to disclose material information, including the true, significantly lower horsepower of Defendants products and (3) falsely advertising and selling lawn mowers containing identical engines that

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produce the same horsepower as different products with different horsepower labels or ratings at different priceshigher prices for falsely represented higher horsepowerwhile concealing, suppressing and failing to disclose material information, including the facts that the engines are identical, and the true, significantly lower horsepower of the lawn mowers. Plaintiff asserts violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), New Mexicos Unfair Practices Act, state and federal antitrust statutes, as well as claims for common law unjust enrichment and conspiracy. Defendants have agreed and conspired among themselves to misrepresent and conceal material facts concerning the horsepower of other Defendants lawn mowers and lawn mower engines, while misrepresenting, significantly overstating and concealing the true horsepower of Defendants own lawn mowers and lawn mower engines. 2. Plaintiff brings this action on behalf of himself and classes of similarly situated

consumers who purchased lawn mowers with engines sold or manufactured by Defendants. Plaintiff, for himself and for the classes, seeks compensatory damages for the injuries to Plaintiff caused by Defendants unlawful conduct, such additional monetary relief as allowed under the statutory consumer and common laws of New Mexico, treble damages pursuant to 18 U.S.C. 1962(c) and (d), injunctive and other equitable relief and costs of suit and reasonable attorneys fees. 3. With respect to Plaintiffs RICO claims, Plaintiff brings these claims on behalf of

himself and a nationwide Class of similarly situated persons who purchased a lawn mower containing a gas combustible engine up to 30 horsepower that was manufactured or sold by a Defendant. 4. With respect to Plaintiffs federal antitrust claim, Plaintiff brings this claim on

behalf of himself and a nationwide Class of similarly situated persons who purchased a lawn

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mower containing a gas combustible engine up to 30 horsepower that was manufactured or sold by a Defendant. 5. With respect to Plaintiffs state antitrust claims, Plaintiff brings these claims on

behalf of himself and all persons and entities in Arizona, Arkansas, California, the District of Columbia, Florida, Iowa, Kansas, Maine, Michigan, Minnesota, Mississippi, Massachusetts, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Carolina, North Dakota, Puerto Rico, Rhode Island, South Dakota, Tennessee, Utah, Vermont, West Virginia, Wisconsin, and Wyoming 6. With respect to Plaintiffs statutory consumer law claims and common law claims

for unjust enrichment and civil conspiracy, Plaintiff brings these claims on behalf of himself and a statewide New Mexico Class of similarly situated persons who purchased a lawn mower containing a gas combustible engine up to 30 horsepower that was manufactured or sold by a Defendant. II. 7. JURISDICTION AND VENUE

This Court has personal jurisdiction over the Defendants. The Court has

jurisdiction over the subject matter of this action pursuant to 28 U.S.C. 1332 and 18 U.S.C. 1962(c) and (d), 1964(c) and 1965(a). Defendants have transacted business and their affairs in New Mexico and have committed the acts complained of in this state. The amount in controversy exceeds $5,000,000. 8. Venue is proper in this judicial district pursuant to 15 U.S.C. 22 and 28 U.S.C.

1391(a), (c) and (d) because a substantial part of the events giving rise to Plaintiffs claims occurred in this district. Defendants have transacted business and their affairs in this district and have committed the acts complained of in this district.

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III. A. PLAINTIFF 9.

PARTIES

Plaintiff Mike Martinez resides at 186A Rimroad, Arroyo Seco, New Mexico

87514. In approximately 2004 or 2005, Mr. Martinez purchased from a Sears, Roebuck and Co. in Taos, New Mexico, a lawn mower for approximately $250 to $300, which was manufactured by Craftsman, and which contained a purported, labeled 6.75 horsepower engine, which, upon information and belief, was manufactured by Briggs & Stratton. B. DEFENDANTS 10. Defendant Sears, Roebuck and Co. (Sears) is a corporation with its

headquarters located at 3333 Beverly Road B-5 317A, Hoffman Estates, Illinois 60179-0001. Sears sells lawn mowers under its brand name, Craftsman, which were manufactured by Electrolux Home Products, Inc. during the class periods and are currently manufactured by Defendant Husqvarna Outdoor Products, Inc. During the class periods, Searss Craftsman lawn mowers have contained engines manufactured by Tecumseh Products Company, Briggs & Stratton Corporation, Kohler Co., and American Honda Motor Company, Inc. Sears also sells certain other brands of lawn mowers in addition to its Craftsman lawn mowers. Sears advertises, markets and sells Craftsman lawn mowers throughout the United States, including in New Mexico. 11. Defendant Deere & Company (Deere) is an Illinois corporation with its

headquarters located at One Deere Place, Moline, Illinois 61265. During the class periods, Deere has installed in its lawn mowers engines manufactured by Defendants Briggs & Stratton Corporation, American Honda Motor Company, Inc., Kawasaki Motors Corp. USA, and Kohler

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Co. Deere advertises, markets and sells lawn mowers throughout the United States, including in New Mexico. 12. Defendant Tecumseh Products Company (Tecumseh) is a corporation with its

headquarters located at 100 East Patterson Street, Tecumseh, Michigan 49286-2041. During the class periods, Tecumseh has manufactured engines for installation in lawn mowers sold by Defendants Sears, Electrolux Home Products, Inc., MTD Products Inc, and The Toro Company. Tecumseh manufactures engines that are installed in lawn mowers advertised, marketed and sold throughout the United States, including in New Mexico. 13. Defendant Platinum Equity, LLC (Platinum) is a California company with its

headquarters located at 360 North Crescent Drive, South Building, Beverly Hills, California 90210. Platinum acquired Defendant Tecumsehs engines division in November 2007. During the class periods Platinum manufactured engines that are installed in lawn mowers advertised, marketed and sold throughout the United States, including in New Mexico. 14. Defendant Briggs & Stratton Corporation (Briggs & Stratton) is a corporation

with its headquarters located at 12301 West Wirth Street, Wauwatosa, Wisconsin 53222-2110. During the class periods, Briggs & Stratton manufactured engines for installation in lawn mowers sold by Defendants Sears, MTD Products Inc, Electrolux Home Products Inc., Deere and The Toro Company. Briggs & Stratton has acquired certain assets of original equipment manufacturers and is engaged in the manufacturing and sale of certain lawn mowers. Specifically, in June 2004, Briggs announced its acquisition of Simplicity Manufacturing, Inc., which is headquartered in Port Washington, Wisconsin. In October 2002, Simplicity acquired Snapper, Inc., a Georgia manufacturer of lawn mowers and other outdoor products. Briggs & Stratton manufactures engines that are installed in lawn mowers advertised, marketed and sold

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throughout the United States, including in New Mexico. Briggs & Stratton advertises, markets, and sells its own brand of lawn mowers throughout the United States, including in New Mexico. 15. Defendant Kawasaki Motors Corp. USA (Kawasaki) is a corporation with its

corporate headquarters located at 9950 Jeronimo Road, Irvine, California 92618-2014. During the class periods, Kawasaki manufactured engines for installation in lawn mowers sold by Defendants Deere, MTD Products Inc, Electrolux Home Products, Inc., and The Toro Company. Kawasaki manufactures engines for installation in lawn mowers advertised, marketed and sold throughout the United States, including in New Mexico. 16. Defendant MTD Products Inc (MTD) is a corporation with its headquarters at

5965 Grafton Road, Valley City, Ohio 44280-9329. MTD manufactures lawn mowers under the brand names Cub Cadet, Troy Bilt, Yard-Man, Yard Machines, Bolens and White Outdoor. During the class periods, MTD installed in its lawn mowers engines manufactured by Defendants Briggs & Stratton, American Honda Motor Company, Inc., Kawasaki, Kohler Co. and Tecumseh. MTD advertises, markets and sells lawn mowers throughout the United States, including in New Mexico. 17. Defendant The Toro Company (Toro) is a corporation with a corporate address

of 8111 Lyndale Avenue South, Bloomington, Minnesota 55420-1136. Toro manufactures lawn mowers under the brand names Toro, Lawn-Boy and Exmark. During the class periods, Toro installed in its lawn mowers engines manufactured by Defendants Tecumseh, Kawasaki, Kohler Co., American Honda Motor Company, Inc., and Briggs & Stratton. Toro advertises, markets and sells lawn mowers throughout the United States, including in New Mexico. 18. Defendant American Honda Motor Company, Inc. (Honda) is a subsidiary of

Honda Corporation with a corporate address of 4900 Marconi Drive, Alpharetta, Georgia

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30005-2033. During the class periods, Honda manufactured engines for installation in lawn mowers sold by Defendants MTD, Deere, Electrolux Home Products, Inc., and Toro. Honda advertises, markets and sells lawn mowers and lawn mower engines throughout the United States, including in New Mexico. 19. Defendant Electrolux Home Products, Inc. (Electrolux) is a corporation with a

corporate address of 18013 Cleveland Parkway, Suite 100, Cleveland, Ohio 44135-3235. Electrolux manufactured lawn mowers as American Yard Products (AYP). Electrolux also did business as Husqvarna Outdoor Products Inc., and Husqvarna AB until June 2006. AYP produced lawn mowers marketed under the brand names Poulan, Poulan PRO, Weed Eater and Husqvarna. AYP also manufactured lawn mowers for Sears sold under the Sears Craftsman brand. During the class periods, Electrolux installed in its lawn mowers engines manufactured by Defendants Tecumseh, Kawasaki, Kohler Co., Honda and Briggs & Stratton. During the class periods, Electrolux advertised, marketed and sold lawn mowers throughout the United States, including in New Mexico. In June 2006, Electroluxs outdoor products segment was spun-off. A separate entity resulting from the spin-off is known as Husqvarna Outdoor Products, Inc. 20. Defendant Husqvarna Outdoor Products, Inc. (Husqvarna) is a company with a

corporate address of 1030 Stevens Creek Rd, Augusta, Georgia 30907. Husqvarna manufactures lawn mowers advertised, marketed and sold throughout the United States, including in New Mexico. Husqvarna manufactures lawn mowers marketed under the brand names Poulan, Poulan Pro, Weed Eater and Husqvarna, as well as lawn mowers sold under Searss Craftsman brand. 21. Defendant Kohler Co. (Kohler) is a corporation with headquarters located at

444 Highland Drive, Kohler, Wisconsin 53044. During the class periods, Kohler manufactured engines for installation in lawn mowers sold by Defendants Deere, Toro, Electrolux, and MTD.

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Kohler manufactures engines that are installed in lawn mowers advertised, marketed and sold throughout the United States, including in New Mexico. IV. 22. AGENTS AND CO-CONSPIRATORS

The acts alleged against the Defendants in this Complaint were authorized,

ordered, or done by their officers, agents, employees, or representatives, while actively engaged in the management and operation of Defendants businesses or affairs. 23. Various persons and/or firms not named as Defendants herein may have

participated as co-conspirators in the violations alleged herein and may have performed acts and made statements in furtherance thereof. 24. Each Defendant acted as the principal, agent, or joint venturer of, or for, other

Defendants with respect to the acts, violations, and common course of conduct alleged by Plaintiff. V. 25. FACTUAL ALLEGATIONS

Defendants manufacture, advertise, market and sell lawn mowers and the engines

installed in lawn mowers to consumers throughout the United States, including in New Mexico. 26. Defendants currently sell nearly six million lawn mowers to the public throughout

the United States, including in New Mexico, per year. 27. During the class periods, Defendants have used the unit of horsepower to label,

categorize and market their lawn mowers and lawn mower engines. The higher the actual horsepower, the more power the engine produces. 28. The more horsepower generated by a lawn mowers engine, the better and faster

the lawn mower is able to perform.

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29.

Defendants market and offer for sale at higher prices lawn mowers labeled or

otherwise advertised with higher horsepower. The higher the horsepower, the higher the price Defendants charge. Consumers throughout New Mexico, including Plaintiff and members of the proposed classes, pay more for lawn mowers labeled or otherwise represented by Defendants as producing higher horsepower. 30. The horsepower of a lawn mower is a material fact, one that is important to a

consumer and is the type of information upon which a buyer would be expected to rely in making a purchasing decision. Statements of horsepower are factual representations that are likely to affect the lawn mower purchasing decisions or conduct of consumers, including Plaintiff and members of the proposed classes. As Defendant Briggs & Strattons president and CEO, John Shiely, explained during an April 20, 2006 conference call with shareholders and analysts: As far as the customers are concerned, its always been our experience that, you know, more horsepower is better and that, ultimately that becomes the demand, that becomes what the customer wants. A. DEFENDANTS MISREPRESENTATIONS OF HORSEPOWER 31. The horsepower purportedly generated by Defendants lawn mowers is identified

as a number on labels located on the lawn mowers or on the lawn mowers engines, and/or in Defendants other advertising, including packing materials, owners manuals, materials distributed with Defendants lawn mowers, Defendants websites, and point-of-sale and other promotional materials disseminated or caused to be disseminated by or on behalf of Defendants to the public throughout the United States, including in New Mexico. 32. Defendants have knowingly misrepresented and significantly overstated the

horsepower of Defendants lawn mowers and lawn mower engines.

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33.

Throughout the class periods (January 1, 1994 through the present), Defendants

have knowingly misrepresented the horsepower of Defendants lawn mowers and lawn mower engines through statements and representations made and disseminated to the public in Defendants advertising, including product labeling, packing materials, owners manuals, websites, point-of-sale materials and other promotional materials. 34. In fact, the true horsepower of Defendants engines is significantly less than the

horsepower represented by Defendants in advertising, marketing and selling their lawn mowers and lawn mower engines to the public. B. DEFENDANTS MARKET AND SELL LAWN MOWERS CONTAINING IDENTICAL ENGINES AS DIFFERENT PRODUCTS AT DIFFERENT PRICESHIGHER PRICES FOR FALSELY REPRESENTED HIGHER HORSEPOWER 35. Defendants knowingly advertise, market and sell identical engines with varying

horsepower ratings and labels, thereby representing (directly and by implication) that these identical engines are different. In fact, these engines are identical on the basis of horsepower. Defendants sell these identical, but differently and misleadingly labeled, engines at different priceswith higher prices for engines falsely labeled with purported higher horsepower. Defendants thereby represent that the products are different when they are not but, rather, contain identical engines. 36. In advertising, marketing and selling such engines, Defendants charge or cause to

be charged a higher price for such identical engines containing a falsely represented higher horsepower. 37. In advertising, marketing and selling such lawn mowers, Defendants conceal,

suppress and fail to disclose the material fact that the lawn mowers contain identical engines.

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38.

In selling such lawn mowers containing identical engines that produce the same

horsepower as different products and at different priceshigher prices for falsely represented higher horsepowerDefendants repeatedly misrepresent the horsepower of the engines and conceal, suppress and fail to disclose material facts, including that such products contain identical engines and the true, significantly lower horsepower of the engines. C. CONCEALMENT, SUPPRESSION AND OMISSIONS OF MATERIAL FACTS 39. In advertising, marketing and selling their lawn mowers and lawn mower engines

to the public, Defendants have repeatedly concealed, suppressed and failed to disclose material information, including the true, significantly lower horsepower of their lawn mowers and lawn mower engines. 40. Defendants advertising, including labeling, packing materials, owners manuals,

websites, point-of-sale materials and other promotional materials, conceals, suppresses and fails to disclose the true, significantly lower horsepower actually produced by Defendants lawn mowers and lawn mower engines. 41. Defendants published, and caused third party websites to publish, misleading

information regarding lawn mower horsepower in an attempt to conceal and suppress the material fact of the true lower horsepower of Defendants products. D. CONSPIRACY TO DEFRAUD THE PUBLIC AND TO CONCEAL DEFENDANTS FRAUDULENT PRACTICES 42. While knowingly misrepresenting horsepower in advertising, marketing and

selling their own lawn mowers and lawn mower engines to the public, Defendants know that the other Defendants lawn mower engines do not produce the horsepower represented by such other Defendants. Defendants have routinely tested other Defendants engines and are aware that the other Defendants also misrepresent the horsepower of their engines and that other Defendants

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conceal, suppress, and fail to disclose to the public the true, significantly lower horsepower of their engines. 43. While knowing of the other Defendants horsepower misrepresentations and

omissions, Defendants agreed to conceal, suppress and fail to reveal the horsepower misrepresentations and omissions of the other Defendants. 44. Defendants communicated among themselves and agreed and conspired to

conceal and suppress other Defendants misrepresentations and omissions relating to the horsepower of other Defendants lawn mowers and lawn mower engines, while misrepresenting, significantly overstating the horsepower, and concealing and suppressing the true, significantly lower horsepower of Defendants own lawn mowers and lawn mower engines. 45. Defendants have an incentive to hide truthful information about the true, lower-

than-represented horsepower of each others lawn mowers and lawn mower engines from the public, since Defendants are all engaging in the false, misleading, and deceptive advertising and unfair and deceptive trade practices and unlawful conduct set forth in this Complaint. 46. As a result of their conspiracy to conceal truthful horsepower information and

defraud the public, Defendants are able to continue to misrepresent, conceal, and suppress the true horsepower of Defendants lawn mowers and lawn mower engines sold to Plaintiff and the public and charge higher prices than they would if not for their misrepresentations and illegal concerted activity. Defendants Power Labeling Task Force Furthered and Concealed their Fraud 47. Defendants Deere, Tecumseh, Briggs & Stratton, Kawasaki, MTD, Toro, Honda,

Electrolux, and Kohler are all members in a group that they call the Power Labeling Task Force, which provides Defendants the means, opportunity and cover to meet, discuss, conspire,

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conceal and further their fraudulent horsepower misrepresentations. The Power Labeling Task Force regularly met at various locations, and agendas of the meetings were distributed in advance of the meetings. After the meetings, minutes and other summaries of the meetings were also distributed to Defendants. OPEI website 48. In or about 2001, the members of the Power Labeling Task Force, including

representatives of Defendants, met and discussed various means by which to conceal horsepower fraud and misrepresent horsepower to the consuming public. One suggestion was to put a disclaimera statement containing misleading information on horsepower issues designed to confuse the consuming publicon the Outdoor Power Equipment Institute (OPEI, an otherwise legitimate organization) website. The disclaimer was titled Understanding Horsepower and includes misleading information on horsepower issues. 49. On July 10, 2001, William G. Harley and Patrick W. Curtiss of the OPEI mailed

to Defendants a memorandum listing the uniform means by which the Power Labeling Task Force members intended to misrepresent horsepower testing procedures and to conceal Defendants fraudulent horsepower labeling practices from consumers. 50. The members of the Power Labeling Task Force, which are also members of the

OPEI, voted in favor of the proposal, and the OPEI created the webpage containing misleading horsepower information. The webpage continues to be on the OPEIs website. 51. Defendants conduct rises above mere fraud. Not only do Defendants lie about the

horsepower of their lawn mowers and lawn mower engines, Defendants conspired to conceal these lies and deceive the consuming public by using the website of a legitimate entity. The creation of and amendment to SAE J1940

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52.

The Society of Automotive Engineers (SAE) is an automotive industry

organization that creates and publishes engineering standards that are voluntarily followed by manufacturers. Standards are promulgated through committees that include industry members. During the class periods, Defendants Briggs & Stratton, Kohler, Tecumseh, Kawasaki, and Honda were members of the SAE Small Engine & Power Equipment Committee, which is the committee responsible for small engines, including lawn mower engines. Defendant Tecumsehs employee and agent, Mike Adams, was Chairman, and Defendant Kohlers employee and agent Mark Swanson also served in a leadership capacity as the secretary of the SAE Small Engine & Power Equipment Committee. All five engine manufacturing Defendants became members of the SAE Small Engine & Power Equipment Committee. 53. In the late 1980s, several Defendants became aware of concerns expressed about

horsepower fraud. They then took action within the SAE and implemented a labeling standard called SAE J1940, the purpose and effect of which was to conceal horsepower fraud. This labeling standard was an attempt to give Defendants a purportedly legitimate reason for labeling their engines with a horsepower representation different than what their test results achieved and to conceal their conspiracy and illegal acts. There is no legitimate reason for a horsepower labeling standard. Instead, Defendants should label their engines with the actual horsepower achieved by the horsepower test. 54. In or about 2000, the Power Labeling Task Force instructed its members, which

were also members of the SAE Small Engine & Power Equipment Committee, to recommend to the rest of the committee that revisions to SAE J1940 be made which would further conceal Defendants fraudulent horsepower representations. The Power Labeling Task Force amended, or caused to be amended, the SAE J1940 labeling standard to allow for a fudge factor of up to

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15% to be added to horsepower labels. The Power Labeling Task Force also concealed the true reasons for the amendments to SAE standards by creating false or misleading explanations for the purpose of, or reasons for, those amendments. Even assuming that Defendants use accurate horsepower testing procedures, the amended SAE J1940 standard explicitly permits Defendants to lie about horsepower to consumers, and then to point to the labeling standard that they conspired to create through the Power Labeling Task Force as the fraudulent justification for the overstatement of horsepower. Because the SAE J1940 standard appears on its face to be a standard of the SAEan otherwise legitimate associationDefendants fraudulent horsepower labeling practices are given the imprimatur of legitimacy and their conspiracy is concealed. Creation of SAE J1995 gross horsepower 55. In 1990, Defendants conspired to create another SAE standard to both conceal

horsepower fraud and to give Defendants another means to affirmatively misrepresent horsepower to the consuming public. In 1990, several Defendants caused to be created, published and disseminated worldwide SAE J1995, which is a gross horsepower testing protocol. Gross horsepower is the theoretical horsepower that an engine could achieve under ideal laboratory conditions with all of the legally required accessories removed from the enginesuch as the air filter and exhaust mechanism. By causing the creation of SAE J1995, Defendants created a new, entirely different definition of horsepower for lawn mowers and lawn mower engines that is deceptive to consumers. Prior to 1990, Defendants used net horsepower, which is the horsepower used in other industries, such as the auto industry. 56. Gross horsepower is deceptive because by removing the necessary components,

such as exhaust systems and air filters, which drain an engine of power, a higher horsepower can be achieved in the laboratory than in the field. Of course, no consumer ever uses a lawn mower

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without an exhaust, air filter and all of the other necessary parts of an engine. Further, it is against federal law to sell a lawn mower without such parts. 57. Throughout the class periods, Defendants labeled their engines with gross

horsepower in accordance with the fraudulently created SAE J1995 standard. Because Defendants rely on SAE J1995 and continue to use gross horsepower instead of net horsepower, Plaintiff and members of the classes, and future purchasers of mislabeled lawn mowers, have been injured as a result of this conspiracy. 58. Defendants conspiratorial use of gross horsepower to label their engines is

fraudulent. In labeling their engines, Defendants did not disclose what gross horsepower means, and never disclose that the horsepower they use to label their engines differs from the horsepower used by other industries such as the automobile industry. Torque power 59. In or about 2004, the Power Labeling Task Force began meeting and discussing

alternative means of labeling horsepower and to further their conspiracy. Defendant Briggs & Stratton coordinated the alternative labeling research. The research was presented to the members of the Power Labeling Task Force by Stuart Drake of Kirkland & Ellis, who proposed that the Power Labeling Task Force take action to use alternative labeling practices. The Power Labeling Task Force continued to meet and discuss alternatives up until at least June 2, 2004. 60. Starting in 2007, several Defendants, including Defendants MTD and Briggs &

Stratton began labeling their lawn mower engines with torque. Defendant Briggs & Stratton entered into an indemnity agreement with Defendant MTD whereby Defendant Briggs & Stratton agreed to indemnify Defendant MTD for claims of fraud arising from the labeling of lawn mowers and lawn mower engines with torque. Defendants point to the amended SAE

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J1940 standard as the authority that allows them to label with torque, despite the fact that engineers assert that torque is not an appropriate quantifier of power and should not be used in power labeling. 61. Although Defendants did not begin to use torque to label engines until 2007,

Defendants rely on the 2002 amendment to SAE J1940 for justification to use torque to label engines. As such, this conduct demonstrates a continued risk that the Power Labeling Task Force will take further steps in the future to fraudulently label lawn mowers and lawn mower engines and conceal their fraud from the public. Defendant Engine Manufacturers Conspired to Conceal their Fraud 62. Defendants Briggs & Stratton, Kohler and Tecumseh formed a private group that

they called the Eagle Group to discuss common issues facing their companies, such as proposed federal and state environmental regulations. The Eagle Group has been a means for Defendants to discuss horsepower overstatement and proposed methods to conceal their respective fraud. 63. The Eagle Group has met in Wisconsin and Illinois and has existed since at least

1994. The Eagle Group has appeared at Power Labeling Task Force meetings. Most Powerful Craftsman Conspiracy 64. Defendant Sears has, since 1927, sold a variety of products under the Craftsman

brand, from hand tools to power equipment. Since at least the mid-1990s, and at all times during the class periods, Defendant Sears has sold Craftsman lawn mowers, which Defendant Sears has touted as the most powerful lawn mowers on the market. Since at least the mid-1990s, and at all times during the class periods, Defendants have sold lawn mowers to Defendant Sears, including the lawn mowers sold under the Craftsman brand.

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65.

Defendants Briggs & Stratton, Kohler, Electrolux and Sears conspired to deceive

consumers by significantly overstating horsepower to the public, as well as concealing truthful horsepower information from the consuming public. During the class periods, Sears marketed, advertised and sold lawn mowers it claimed were the most powerful on the market. Briggs & Stratton reserves the highest fraudulent horsepower labels exclusively for lawn mowers sold at Searsdespite the fact that the horsepower of the Sears Craftsman lawn mower engines, contrary to Searss representations as the most powerful engines, is not greater than the same engines sold by Briggs & Stratton to other lawn mower manufacturers. Briggs & Stratton conspired with Sears to provide Sears with the exclusive right to the highest fraudulent horsepower labels. 66. Defendants Briggs & Stratton, Kohler, Electrolux, and Searss conspiracy allowed

Sears to represent to the consuming public that Sears sells the most powerful lawn mower engines in the world. For example, on April 9, 2002, in a news release put on the wires from its Hoffman Estates, Illinois headquarters, Sears announced that Searss Craftsman has introduced a propelled, front-wheel-drive lawn mower with a 7 hp Briggs & Stratton engine the most powerful lawn mower engine ever built for use at home. The press release goes on to state that [t]he industrys mightiest mower is joined by the most powerful consumer tractor on the market the Craftsman 27 hp Kohler Pro Garden Tractor. This fraudulent misrepresentation has been transmitted continuously via the Internet since April 9, 2002. 67. The representations made by Sears in the April 9, 2002 press release disseminated

on the Internet and via the United States mails stating that the 7 hp Briggs & Stratton engine and the 27 hp Kohler engine are the most powerful engines on the market are patently false and misleading. The advertised Briggs & Stratton engine produces far less than 7 horsepower.

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The advertised Kohler engine produces far less than 27 horsepower. Further, the engine that Briggs & Stratton, Electrolux, and Sears knowingly advertise, including through labeling, marketing, and selling to consumers the most powerful walk-behind lawn mowerthe 7 horsepower Briggs & Stratton engineis the same engine that is sold to other consumers with horsepower labels less than 7 horsepower. Further, the engine that Kohler, Electrolux, and Sears knowingly advertise, including through labeling, marketing, and selling to consumers as the most powerful riding lawn mowerthe 27 horsepower Kohler engineis the same engine that is sold to other consumers with horsepower labels less than 27 horsepower. E. DEFENDANTS FRAUDULENTLY CONCEALED THEIR CONTINUING FRAUD FROM DISCOVERY BY PLAINTIFF 68. Plaintiff and members of the proposed classes did not know, and had no

reasonable way of knowing (a) that Defendants, in advertising, marketing and selling their lawn mowers and lawn mower engines, engaged in the unfair and deceptive acts or practices and other unlawful conduct set forth in this Complaint, (b) of the falsity of Defendants material misrepresentations, or (c) of Defendants conspiracy to conceal and suppress truthful information about the actual horsepower of other Defendants lawn mowers and lawn mower engines, while concealing and suppressing truthful information about the actual, significantly lower-thanrepresented horsepower of Defendants own lawn mowers and lawn mower engines. 69. Defendants affirmatively and actively concealed their misrepresentations and

omissions and their conspiracy in order to avoid detection and hide their unlawful conduct from Plaintiff and the public. 70. Defendants conduct of misrepresenting and concealing material facts concerning

the horsepower of Defendants lawn mowers and lawn mower engines, and Defendants conduct in advertising, marketing and selling lawn mowers containing identical engines as different

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products at different priceshigher prices for falsely represented higher horsepowerwithout disclosing the material facts that the engines are identical and the true, significantly lower horsepower of such products, concealed from Plaintiff his causes of action. 71. Defendants further concealed their use of the same engines in differently labeled

and differently priced lawn mowers by covering the engines with different shrouds or covers that typically display a different horsepower number, even though the covered engine is identical to that contained in lawn mowers with different shrouds or covers (and typically with a different horsepower label on the shrouds). These shrouds or covers have no effect on performance of the lawn mower. Defendants use them as fraud covers to falsely represent that such lawn mowers are different products (with different horsepower ratings), which Defendants advertise and sell at different prices (higher prices for higher falsely represented horsepower). In fact, such products are not different, contain identical engines and do not produce the horsepower represented by Defendants. 72. Defendants actions in causing the amendment of the SAE J1940 labeling

standard further hid their fraud. As a result of the amendments, the SAE J1940 standard provides that production engines shall develop not less than 85% of the labeled horsepower. The change to the SAE J1940 standard effected by Defendants provides for a built-in fudge factor. For example, an engine is accurately labeled under SAE J1940 if its label states it produces 20 horsepower but only produces 17 horsepower when tested. This misleading fudge factor alone is fraudulent, however, Defendants inflate their horsepower ratings even higher than the fudge factor. 73. Additionally, the amended SAE J1940 standard provides Defendants with the

option of representing the power of their engines on the basis of torque power. Torque

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power is not a measure of anything and is a meaningless, fictional value concocted for the sole purpose of concealment. 74. The true purpose of these changes was to provide cover for and conceal

Defendants fraudulent horsepower misrepresentations and omissions. At meetings attended by Defendants representatives, it was made clear that the purpose of these changes was to conceal Defendants past fraud, and to allow Defendants to continue their fraudulent labeling practices. 75. Defendants misrepresentations and omissions concerning the horsepower of

Defendants lawn mowers and lawn mower engines have continued despite the changes to the SAE J1940 standard effected by Defendants. Defendants misrepresent and overstate the horsepower of Defendants lawn mower engines in excess even of the fudge factor provided for in the amended voluntary horsepower labeling standard SAE J1940. 76. Defendants met during the class periods to discuss ways to conceal their fraud. In

June 2003, at an annual board meeting of the OPEI in Colorado Springs, Colorado, John Jenkins, the President of Defendant Deere, warned representatives of several Defendants that if the industry did not address the fraudulent horsepower inflation, he would blow the whistle on Defendants conduct. 77. At the foregoing meeting, an executive from Defendant Kohler informed an

executive of Defendant MTD that a proposal would be drafted by the Eagle Group to address the issue of horsepower inflation and overstatement. 78. At the April 2004 meeting of the Power Labeling Task Force, a proposal was

made for Defendants to take advantage of the amended SAE labeling standard to use torque power instead of horsepower in advertising, marketing and selling Defendants lawn mowers and lawn mower engines. Defendants proposed using torque power in order to conceal their

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misrepresentations and omissions concerning horsepower, because torque has a higher numerical value or number than horsepower and is more confusing to consumers. Changing to torque power was an opportunity for Defendants to further conceal their fraud by using a number that is meaningless on an objective, engineering basis, and is simply designed to draw attention away from Defendants fraudulent conduct involving horsepower misrepresentations and omissions. 79. Defendants unlawful conduct and conspiracy as set forth in this Complaint is

inherently self-concealing. 80. Plaintiff and class members had no realistic means of discovering or detecting

Defendants horsepower misrepresentations and omissions. Plaintiff does not own or have access to testing equipment necessary to test the actual horsepower of Defendants lawn mower engines. The testing equipment is virtually impossible for consumers to find and is cost-prohibitive. 81. Plaintiff and class members had no viable way of determining from the

horsepower reported by Defendant engine manufacturers Briggs & Stratton, Kawasaki, Tecumseh, Toro, Kohler, and Platinum (doing business as Tecumseh Power Company) to the United States Environmental Protection Agency (EPA) and the California Air Resources Board (CARB) the actual horsepower of particular models of lawn mowers sold by Defendants. 82. Plaintiff and the class members are under no duty to inquire into the truthfulness

of Defendants representations, including Defendants representations concerning the horsepower of Defendants lawn mowers and lawn mower engines. In advertising, marketing and selling Defendants lawn mowers and lawn mower engines, Defendants owe a duty to Plaintiff, all class members and the public to provide truthful, non-deceptive information and to avoid and

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refrain from unfair and deceptive, and otherwise unlawful acts and practices, including false or misleading advertising. 83. Defendants also used the OPEI to conceal their fraud by drafting and having

placed on the OPEIs website the Understanding Horsepower webpage. Through this website posting, Defendants concealed their fraud by attempting to explain away any detectable horsepower shortcomings. While Defendants use gross horsepower to label their engines, the representations made on the OPEIs website state that factors such as atmospheric conditions were to blame for the lack of horsepower in their engines. This website posting is misleading and is designed not to inform consumers, but to conceal Defendants fraud. Rather than correct their horsepower misrepresentations, Defendants developed more misrepresentations to conceal their fraud and conspiracy. 84. Plaintiff, in the exercise of due diligence, was not aware of and did not discover

the facts underlying his claims, or facts indicating that Defendants unlawful conduct caused Plaintiffs harm, until only several weeks before this Complaint was filed. 85. nature. 86. Unless enjoined, Defendants unlawful conduct will continue and Plaintiff and Defendants unlawful practices as described in this Complaint are continuing in

members of the classes will continue to purchase Defendants lawn mowers and lawn mower engines subject to Defendants unlawful acts and practices set forth in the Complaint.

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F.

DEFENDANTS FRAUD IS MANIFESTED IN THE DISPARITY BETWEEN THE LOWER HORSEPOWER REPORTED BY DEFENDANT MANUFACTURERS TO THE GOVERNMENT AND THE FALSE, FAR HIGHER HORSEPOWER DEFENDANTS MISREPRESENT TO THE PUBLIC 87. Since at least 1997 small engine manufacturers have been required under the

Clean Air Act and the California Clean Air Act to submit the maximum gross horsepower ratings of their lawn mower engines to the EPA and CARB. 88. Since at least 1997, in perpetrating their fraudulent horsepower scheme,

Defendants Briggs & Stratton, Kawasaki, Tecumseh, Toro, Kohler, and Platinum (doing business as Tecumseh Power Company) have reported horsepower ratings to the EPA and CARB that are significantly lower than the inflated, false, misleading and deceptive horsepower representations Defendants make in advertising, marketing and selling Defendants lawn mower engines. 89. For example, Tecumseh reported to the EPA that its LV195 lawn mower engine

produces 3.67 horsepower, yet Tecumseh represented to the consuming public, including to Plaintiff, on labels and elsewhere, that the LV195 engine produces 6.75 horsepower. This is an overstatement of approximately 84%. 90. Similarly, Briggs & Stratton reported to the EPA that its Model 125k lawn mower

engine produces 3.6 horsepower, yet Briggs & Stratton represented to the consuming public, including Plaintiff, that its Model 125k engine produces 6.75 horsepower. This is an overstatement of about 88%. 91. In their advertisements, including product labels, packing materials, websites, and

point-of-sale and other marketing materials, Defendants Briggs & Stratton, Kawasaki, Tecumseh, Platinum, Toro, Kohler, and Platinum (doing business as Tecumseh Power Company) repeatedly conceal, suppress and fail to disclose both the lower horsepower ratings said Defendants report to the EPA and CARB, and the fact that these Defendants report lower

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horsepower ratings to the EPA and CARB than the significantly higher horsepower falsely represented by Defendants in advertising, marketing and selling their lawn mower engines. G. HARM TO PLAINTIFF AND CLASS MEMBERS 92. Plaintiff and members of the proposed classes are consumers who have been

injured in their money or property by purchasing Defendants lawn mowers and lawn mower engines that were not as represented by Defendants. 93. Plaintiff and the members of the proposed classes suffered actual damages in

purchasing lawn mowers that were not as powerful as, and did not contain the horsepower, represented by Defendants and Plaintiff and members of the proposed classes did not receive the benefit of their bargains. 94. Plaintiff and members of the proposed classes paid more for their lawn mowers

than they would have paid absent Defendants unlawful conduct. 95. As a result of Defendants unlawful conduct, Plaintiff and members of the

proposed classes were deprived of the opportunity to make informed purchasing decisions based on truthful information, including, without limitation, not purchasing Defendants products, or not paying prices for Defendants products that were inflated due to Defendants deceit. 96. As a result of Defendants unlawful conduct, Plaintiff and members of the

proposed classes lost the opportunity to purchase accurately labeled, lower horsepower lawn mowers and to pay lower prices for such products, rather than the higher prices Defendants charged or caused to be charged for Defendants misrepresented products. 97. As a result of Defendants unlawful conduct, Plaintiff and members of the classes

were deprived of the opportunity of making an informed purchasing decision, and were deprived

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of the opportunity to refuse to do business with companies, such as Defendants, engaged in fraudulent and deceptive conduct. 98. As a proximate result of Defendants unlawful conduct, Plaintiff and members of

the proposed classes have suffered damages in an amount to be determined at trial. 99. Defendants have been and continue to be unjustly enriched by selling millions of

misrepresented products to the public through systematic fraud and deception. H. PUBLIC INTEREST AND BENEFIT 100. Plaintiff brings this action on behalf of himself and all similarly situated persons

in the proposed classes for the relief requested as to Plaintiff and classes members and to promote the public interests in the provision of truthful, non-deceptive information to the public in order to allow consumers to make informed purchasing decisions, and in protecting Plaintiff and the public from Defendants unfair, deceptive and fraudulent practices. 101. Defendants misrepresentations and omissions of material facts and other

unlawful conduct as set forth in this Complaint were effected through Defendants advertising directed to Plaintiff and the public at large and disseminated throughout the United States, including in New Mexico. VI. 102. CLASS ACTION ALLEGATIONS

Pursuant to Rule 23(a), (b)(2) and (b)(3), Plaintiff brings this action on behalf of

himself and the members of the following proposed classes: 103. As to the RICO and federal antitrust claims, Plaintiff brings this action on behalf

of himself and all members of the following nationwide class (hereinafter the Nationwide Class):

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All persons in the United States who, beginning January 1, 1994 through the present purchased, for their own use and not for resale, a lawn mower containing a gas combustible engine up to 30 horsepower provided that either the lawn mower or the engine of the lawn mower was manufactured or sold by a Defendant. 104. As to the New Mexico statutory consumer law claims, unjust enrichment, and

civil conspiracy claims, Plaintiff brings this action on behalf of himself and members of the following statewide class (hereinafter the New Mexico Class): All persons in New Mexico who, beginning January 1, 1994 through the present purchased, for their own use and not for resale, a lawn mower containing a gas combustible engine up to 30 horsepower provided that either the lawn mower or the engine of the lawn mower was manufactured or sold by a Defendant. 105. As to the state indirect antitrust claims, Plaintiff brings this action on behalf of

himself and the members of the following class (hereinafter the Indirect Purchaser Class): All persons in Arizona, Arkansas, California, the District of Columbia, Florida, Iowa, Kansas, Maine, Michigan, Minnesota, Mississippi, Massachusetts, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Carolina, North Dakota, Puerto Rico, Rhode Island, South Dakota, Tennessee, Utah, Vermont, West Virginia, Wisconsin, and Wyoming who, beginning January 1, 1994 through the present indirectly purchased for their own use and not for resale, a lawn mower containing a gas combustible engine up to 30 horsepower provided that either the lawn mower or the engine of the lawn mower was manufactured or sold by a Defendant. 106. Excluded from the classes are (i) each Defendant, any entity in which a Defendant

has a controlling interest or which has a controlling interest in any Defendant, and Defendants legal representatives, predecessors, successors and assigns; (ii) governmental entities; (iii) Defendants employees, officers, directors, agents, and representatives and their family members; and (iv) the Judge and staff to whom this case is assigned, and any member of the Judges immediate family.

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107.

Members of the proposed classes are so numerous that the individual joinder of

all absent class members is impracticable. While the exact number of class members is unknown to Plaintiff at this time, it is ascertainable by appropriate discovery. Plaintiff is informed and believes, based upon the nature of the trade and commerce involved, that the proposed classes include millions of members. 108. There are questions of law or fact common to the members of the classes and such

common questions predominate over questions affecting individual members. Among the questions of law or fact common to the applicable proposed classes are: a. Whether Defendants misrepresented the horsepower produced by the

engines in the lawn mowers manufactured or sold by Defendants to Plaintiff and members of the classes; b. Whether Defendants concealed, suppressed and failed to disclose truthful

information concerning the horsepower produced by the engines manufactured or sold by Defendants in lawn mowers sold to Plaintiff and members of the classes; c. Whether Defendants representations and omissions regarding the

horsepower produced by lawn mowers and lawn mower engines manufactured or sold by Defendants involved representations and omissions of material facts; d. Whether Defendants advertised and sold lawn mowers containing identical

engines as different products at different prices (higher prices for falsely represented higher horsepower), without disclosing the fact that the engines contained in such products are identical; e. RICO; Whether Defendants conduct as set forth in this Complaint violated

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f.

Whether Defendants conduct as set forth in this Complaint violated New

Mexicos Unfair Practices Act; g. federal antitrust laws; h. antitrust laws; i. Whether Defendants misrepresentations, omissions and other conduct set Whether Defendants conduct as set forth in this Complaint violated state Whether Defendants conduct as set forth in this Complaint violated

forth in this Complaint occurred in the course of trade or commerce and/or in the conduct of business; j. Whether Defendants conspired to conceal and suppress truthful

information about the actual, significantly lower-than-represented horsepower of other Defendants lawn mowers and lawn mower engines; k. Whether Plaintiff and members of the proposed classes have been injured

by Defendants conduct; l. damages; m. Whether Plaintiff and the members of the proposed classes are entitled to Whether Plaintiff and the members of the proposed classes are entitled to

additional monetary relief as provided under state law; n. Whether Plaintiff and members of the proposed Nationwide Class are

entitled to treble damages as provided under the Racketeer Influenced and Corrupt Organizations Act; o. Whether Defendants were unjustly enriched as a result of Defendants

conduct set forth in this Complaint;

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p.

Whether Defendants conspired to defraud the public and engaged in the

unlawful acts or practices in furtherance of the conspiracy as set forth in this Complaint; q. r. Whether injunctive relief is appropriate; and Whether Plaintiff is entitled to recover costs and expenses incurred in

prosecuting this action and reasonable attorneys fees. 109. Plaintiffs claims are typical of the claims of the classes. Plaintiff and members of

the proposed classes all purchased lawn mowers containing engines manufactured and sold by Defendants. Plaintiff and the members of the proposed classes have all suffered damages as a result of Defendants common conduct and fraudulent scheme, including Defendants horsepower misrepresentations and omissions and other unlawful conduct set forth in this Complaint. 110. Plaintiff will fairly and adequately protect the interests of the proposed classes.

Plaintiff has no interests adverse to the interests of the members of the proposed classes. Plaintiff has retained competent counsel who has extensive experience in prosecuting consumer fraud and complex class action litigation. 111. The prosecution of separate actions by individual members of the classes would

create a risk of inconsistent or varying adjudications, establishing incompatible standards of conduct for Defendants. 112. Defendants have acted or refused to act on grounds generally applicable to the

classes. Declaratory and injunctive relief with respect to the classes is appropriate. 113. The questions of law or fact common to members of the proposed classes

predominate over any individual questions affecting only individual class members. Each of the members of the proposed classes purchased a lawn mower that was not as represented due to

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Defendants misrepresentations of, and concealment, suppression and failure to disclose the actual, significantly lower horsepower of the lawn mower and lawn mower engine. The issues of fact and law applicable to the classes are identical to the issues of fact and law applicable to each individual member of the proposed classes. 114. A class action is an appropriate method for the fair and efficient adjudication of

this controversy and class action treatment is superior to the alternatives. There is no special interest in the members of the classes individually controlling the prosecution of separate actions. The damages sustained by individual class members will not be large enough to justify individual actions, especially in proportion to the tremendous costs and expenses necessary to prosecute this action. The expense and burden of individual litigation makes it impossible for members of the classes individually to address the wrongs done to them. Class treatment will permit the adjudication of claims of class members who could not afford individually to litigate their claims against Defendants. Further, as a result of Defendants concealment, millions of class members remain unaware that they have been injured and will not be aware of Defendants fraud, or the extent and nature of their injury, in the absence of this class action. Class treatment will permit a large number of similarly situated persons to prosecute their common claims in a single forum simultaneously, efficiently and without the duplication of effort and expense that numerous individual actions would entail. No difficulties are likely to be encountered in the management of this class action that would preclude its maintenance as a class action, and no superior alternative exists for the fair and efficient adjudication of this controversy. Furthermore, Defendants transact substantial business throughout the United States. Defendants will not be prejudiced or inconvenienced by the maintenance of this class action in this forum.

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VII.

VIOLATIONS ALLEGED COUNT 1

VIOLATION OF THE RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS ACT (On Behalf of Plaintiff and the Nationwide Class) 115. 116. Plaintiff realleges and incorporates all prior paragraphs of this Complaint. This Count, which alleges violations of Title 18 U.S.C. 1962(c) and (d) of the

Racketeer Influenced and Corrupt Organizations Act, is asserted against all of the Defendants and is brought by Plaintiff on behalf of himself and the Nationwide Class as defined in the previous Class Action Allegations section of this Complaint. 117. Each Defendant is a person as defined in 18 U.S.C. 1961(3), as each of the

Defendants is capable of holding a legal or beneficial interest in property. 118. At all relevant times, in violation of 18 U.S.C. 1962(c), Defendants participated

in the operation and management of, and otherwise conducted the affairs of, certain RICO enterprises. Each enterprise identified below is an association-in-fact consisting of various Defendants associated together for the common purpose of deceiving and defrauding consumers, the affairs of which affected interstate commerce through a pattern of racketeering activity. RICO Enterprises 119. The OPEI Enterprise. The OPEI Enterprise is a RICO enterprise, as defined in 18

U.S.C. 1961(4). The OPEI Enterprise is an association-in-fact consisting of Defendants Honda, Briggs & Stratton, Deere, Electrolux, Kawasaki, Kohler, Tecumseh, MTD and Toro, as well as other unnamed RICO defendants who are presently unknown to Plaintiff but whose identities will be revealed and disclosed in the discovery process. The OPEI Enterprise is an ongoing and continuing organization consisting of corporations and their principals that are and

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have been associated for the common purpose of deceiving consumers by facilitating Defendants ability to market and sell lawn mowers with significantly overstated horsepower to the consuming public, as well as enabling Defendants to conceal their misrepresentations from the consuming public. 120. The Outdoor Power Equipment Institute (OPEI) is an entity that was created for

legitimate business reasons. Defendants Honda, Briggs & Stratton, Deere, Electrolux, Kawasaki, Kohler, Tecumseh, MTD and Toro use the OPEIs resources, contracts, facilities, and appearance of legitimacy to perpetrate more, and less easily discovered, criminal and fraudulent acts. Defendants, through the OPEI Enterprise, use the OPEI to perpetrate illegitimate and fraudulent conduct by enabling Defendants to misrepresent horsepower to the consuming public, and to conceal truthful information concerning the true, significantly lower horsepower of Defendants lawn mowers and lawn mower engines from the consuming public. 121. The OPEI Enterprise enables Defendants to misrepresent horsepower ratings,

labels and testing methodologies to the consuming public, and to conceal, or attempt to conceal, truthful horsepower information from the consuming public by, among other things, communicating misleading information about horsepower ratings, labels and testing procedures to the consuming public through, among other things, material misrepresentations and omissions made to the consuming public on the Internet, including on the OPEIs website in a section entitled Understanding Horsepower Ratings. For a period of several years, the OPEI Enterprise has continuously sent fraudulent information about horsepower ratings to consumers across the country via the Internet twenty-four hours a day. At all relevant times, these activities significantly affected interstate commerce.

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122.

The OPEI Enterprise also engages in affirmative conduct to conceal from the

consuming public Defendants fraudulent horsepower labeling and testing practices, including, but not limited to, working to amend horsepower labeling and testing standards published by the Society of Automotive Engineers (SAE). The OPEI Enterprise also works to conceal the true reasons for the amendments to SAE standards by creating false or misleading explanations of the purposes of, or reason for, the amendments. At all relevant times, these activities significantly affected interstate commerce. 123. Defendants Honda, Briggs & Stratton, Deere, Electrolux, Kawasaki, Kohler,

Tecumseh and Toro were integral participants in the operation, conduct and management of the OPEI Enterprises scheme to misrepresent horsepower to the consuming public and to conceal truthful horsepower information from the public. In addition, Defendants fund and direct the operations and activities of the OPEI Enterprise. 124. The Power Labeling Task Force Enterprise. The Power Labeling Task Force

Enterprise is a RICO enterprise, as defined in 18 U.S.C. 1961(4). The Power Labeling Task Force Enterprise is an association-in-fact consisting of Defendants Honda, Briggs & Stratton, Deere, Electrolux, Kawasaki, Kohler, Tecumseh, MTD and Toro, as well as other unnamed RICO defendants who are presently unknown to Plaintiff but whose identities will be revealed and disclosed in the discovery process. The Power Labeling Task Force Enterprise is an ongoing and continuing organization consisting of corporations and their principals that are and have been associated for the common purpose of deceiving consumers by facilitating Defendants ability to market and sell lawn mowers with significantly overstated horsepower to the consuming public, as well as to conceal truthful horsepower information from the consuming public.

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125.

The Power Labeling Task Force Enterprise facilitates Defendants ability to

misrepresent and significantly overstate horsepower ratings and labels and to manipulate testing methodologies in Defendants fraudulent scheme to defraud the consuming public, and to conceal, or attempt to conceal, truthful information concerning the true, significantly lower horsepower of Defendants products from the consuming public by, among other things, urging the OPEI to use its website to misinform the public, revising SAE J1940 to purportedly allow continuing fraudulent overstatements of horsepower, and using or attempting to use other terminology, such as torque power, to misrepresent horsepower to the consuming public and to conceal Defendants past horsepower misrepresentations and omissions. At all relevant times, these activities significantly affected interstate commerce. 126. The Power Labeling Task Force Enterprise promotes reliance on the amended

SAE J1940 horsepower labeling standard to conceal Defendants horsepower misrepresentations and omissions from the consuming public. At all relevant times, this conduct significantly affected interstate commerce. 127. The Power Labeling Task Force Enterprise facilitates Defendants ability to use

fraudulent and misleading horsepower labels to create a false and misleading appearance of diversifying their product lines without incurring the additional costs of actually developing, manufacturing and supplying truly diversified product lines by labeling identical engines with varying horsepower ratings, which are then sold to the public as different products at different prices (higher prices for falsely represented higher horsepower). To conceal this fraudulent conduct, the Power Labeling Task Force Enterprise amended, or caused to be amended, the SAE J1940 labeling standard to allow for a fudge factor of up to 15% to be added to horsepower labels. The Power Labeling Task Force Enterprise also works to conceal the true reasons for the

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amendments to SAE standards by creating false or misleading explanations for the purpose of, or reasons for, those amendments. At all relevant times, this conduct significantly affected interstate commerce. 128. Defendants Honda, Briggs & Stratton, Deere, Electrolux, Kawasaki, Kohler,

Tecumseh and Toro are alleged to be members of the Power Labeling Task Force Enterprise because they were integral participants in the operation and management of the Power Labeling Task Force Enterprises scheme to misrepresent and significantly overstate horsepower to the consuming public and to conceal truthful horsepower information from the consuming public. In addition, Defendants direct the operation of the Power Labeling Task Force Enterprise. 129. The Craftsman Exclusive Enterprise. The Craftsman Exclusive Enterprise is a

RICO enterprise, as defined in 18 U.S.C. 1961(4). The Craftsman Exclusive Enterprise is an association-in-fact consisting of Defendants Briggs & Stratton, Kohler, Electrolux and Sears. The Craftsman Exclusive Enterprise is an ongoing and continuing organization consisting of corporations and their principals that are and have been associated for the common purpose of deceiving consumers by facilitating the ability of Briggs & Stratton, Kohler, Electrolux and Sears to market and sell lawn mower engines with significantly overstated horsepower to the consuming public, as well as to conceal truthful horsepower information from the consuming public. 130. The Craftsman Exclusive Enterprise facilitates Defendants ability to misrepresent

horsepower ratings, labels and testing procedures to the consuming public. The Craftsman Exclusive Enterprise provides Defendant Sears with the exclusive ability to sell what Sears represents as purportedly the most powerful lawn mower engines on the market, while

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providing Defendants Electrolux, Kohler and Briggs & Stratton access to a large retail market of lawn and garden equipment in the United States. 131. The Craftsman Exclusive Enterprise facilitates Defendants ability to make

egregious horsepower misrepresentations and omissions to the consuming public, since Defendants Briggs & Stratton, Electrolux and Kohler provide Sears with the exclusive ability to sell engines with the highest purported horsepower ratings in any given year. Even though Briggs & Stratton and Kohler sell the same engines to Electrolux for assembly on lawn mowers of all brands to be sold to other retailers, the highest horsepower labels are exclusively reserved for lawn mowers sold at Sears despite the fact that the horsepower of the Sears Craftsman lawn mower engines, contrary to Sears representations as the most powerful engines, is no greater than the same engines sold by Briggs & Stratton and Kohler to Electrolux and assembled in lawn mower brands ultimately sold to consumers. 132. The Craftsman Exclusive Enterprise allows Sears not only to misrepresent the

horsepower of the lawn mowers it sells to the consuming public, but the Craftsman Exclusive Enterprise also allows Sears to represent to the consuming public that Sears sells the most powerful lawn mower engines in the world. For example, on April 9, 2002, in a News Release put on the wires from its Hoffman Estates, Illinois headquarters, Sears announced that Searss Craftsman has introduced a propelled, front-wheel-drive lawn mower with a 7 hp Briggs & Stratton engine the most powerful lawn mower engine ever built for use at home. The press release, which is also posted on Searss website on the Internet where it can continuously be viewed by millions of consumers across the country twenty-four hours a day, goes on to state that [t]he industrys mightiest mower is joined by the most powerful consumer tractor on the market the Craftsman 27 hp Kohler Pro Garden Tractor. This fraudulent misrepresentation

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has also been transmitted continuously via the Internet to consumers across the country since April 9, 2002. 133. The representations made by Sears in the April 9, 2002 press release disseminated

via interstate wire, on the Internet and via the United States mails, stating that the 7 hp Briggs & Stratton engine and the 27 hp Kohler engine are the most powerful engines on the market, are patently false and misleading. The advertised Briggs & Stratton engine produces far less than 7 horsepower. The advertised Kohler engine produces far less than 27 horsepower. Further, the engine that Briggs & Stratton, Kohler, Electrolux and Sears knowingly advertise, including through labeling, market and sell to consumers as the most powerful walk-behind lawn mower the 7 horsepower Briggs & Stratton engine is the same engine that is sold to other consumers with horsepower labels less than 7 horsepower. The engine that Defendants knowingly advertise, including through labeling, market and sell to consumers as the most powerful riding lawn mower the 27 horsepower Kohler engine is the same engine that is sold to other consumers with horsepower labels less than 27 horsepower. Defendants, through the Craftsman Exclusive Enterprise conceal, suppress, fail to disclose and omit material information, including the true, significantly lower horsepower of these lawn mower engines and the fact that the same engines are sold in other lawn mowers with lower horsepower labels. Defendants were enabled to make these material misrepresentations and omissions through the Craftsman Exclusive Enterprise. 134. Defendants Briggs & Stratton, Electrolux, Kohler and Sears are alleged to be

members of the Craftsman Exclusive Enterprise because they are integral participants in the operation and management of the Craftsman Exclusive Enterprises scheme to misrepresent horsepower to the consuming public and to conceal truthful horsepower information from the

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consuming public. In addition, said Defendants direct the operation of the Craftsman Exclusive Enterprise. 135. The Eagle Group/SAE Enterprise. The Eagle Group/SAE Enterprise is a RICO

enterprise, as defined in 18 U.S.C. 1961(4). The Eagle Group Enterprise is an association-infact consisting of Defendants Briggs & Stratton, Kohler and Tecumseh. The Eagle Group/SAE Enterprise is an ongoing and continuing organization consisting of corporations and their principals that are and have been associated for the common purpose of deceiving consumers by facilitating the ability of Briggs & Stratton, Kohler and Tecumseh to market and sell lawn mower engines with significantly overstated horsepower to the consuming public, as well as to conceal truthful horsepower information from the consuming public. At all relevant times, these activities significantly affected interstate commerce. 136. The Eagle Group/SAE Enterprise worked to amend the SAE horsepower rating

standards to allow Defendants to misrepresent horsepower to the consuming public and to conceal truthful horsepower information. The Eagle Group/SAE Enterprise also works to conceal the true reasons for the amendments to SAE standards by creating false or misleading explanations for the adoption or purpose of those amendments. At all relevant times, these activities significantly affected interstate commerce. 137. Defendants Briggs & Stratton, Kohler and Tecumseh are alleged to be members

of the Eagle Group/SAE Enterprise because they were and are integral participants in the operation and management of the Eagle Group/SAE Enterprises scheme to misrepresent horsepower to the consuming public and to conceal truthful information from the consuming public. In addition, Briggs & Stratton, Kohler and Tecumseh direct the operation of the Eagle Group/SAE Enterprise.

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138.

Each Defendant knowingly conducted the affairs of each enterprise of which each

Defendant was a member through a pattern of racketeering that consisted of each Defendant knowingly using the mails, wires and Internet, or reasonably foreseeing the use of the mails, wires and Internet, for the purpose of furthering their deceptive scheme to defraud the consuming public. Pattern of Racketeering Activity: Defendants Repeated and Continuing Use of the Mails and Wires 139. Defendants pattern of racketeering consists of repeated acts of mail and wire

fraud in violation of 18 U.S.C. 1341 and 1343. For each enterprise, Defendants patterns of racketeering activity involved millions of related, but separate instances of use of the mails and wires. At the very least, such instances include the misrepresentations and omissions contained on each Defendants website. Each fraudulent mailing and wire transmission constitutes a racketeering activity within the meaning of 18 U.S.C. 1961(a). Collectively, two or more of these instances constitute a pattern of racketeering activity within the meaning of 18 U.S.C. 1961(5) in which Defendants intended to defraud Plaintiff and the consuming public. 140. Examples of Defendants use of the mails and wires to advance the fraudulent

schemes of each enterprise include, but are not limited to, the following: a. On April 26, 2000, John Liskey of the OPEI mailed, or caused to be

mailed, across state boundaries through the United States mail a letter to Harmut Kaesgen at Defendant MTD. The letter was also transmitted via interstate wire through email and facsimiles to members of the OPEI Enterprise and the Power Labeling Task Force Enterprise. The letter states that we will review past efforts to develop J1940, review how engine companies/OEMs test and label products. This letter evidences Defendants use of the mails and wires to facilitate the objective of both the Power Labeling Task Force Enterprise and the OPEI

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Enterprise to amend the SAE J1940 horsepower labeling standard, and to conceal the fraudulent purpose of the amendment. That representatives of the OPEI would use the interstate mails and wires in furtherance of the schemes of the OPEI Enterprise and the Power Labeling Task Force Enterprise is a foreseeable consequence of the those Enterprises schemes. Defendants Honda, Briggs & Stratton, Deere, Electrolux, Kawasaki, Kohler, Tecumseh, MTD and Toro, as members of the OPEI Enterprise and the Power Labeling Task Force Enterprise, each caused this specific use of the United States mail in furtherance of the fraudulent schemes of the OPEI Enterprise and the Power Labeling Task Force Enterprise. b. On or about March 6, 2001, representatives of the SAE mailed across state

boundaries minutes of a March 6, 2001 SAE meeting attended exclusively by members of the Eagle Group/SAE Enterprise to members of the Eagle Group/SAE Enterprise, including Mike Adams of Tecumseh, Mark Swanson of Kohler, Todd Carpenter of Tecumseh and Bill Latus of Briggs & Stratton. The minutes were also sent to members of the Eagle Group/SAE Enterprise via the interstate wires through email and facsimile. As reflected by the minutes, Todd Carpenter proposed amending the J1940 horsepower labeling standard in furtherance of the Eagle Group/SAE Enterprises scheme to deceive consumers. The mailing of these minutes was to facilitate the Eagle Group/SAE Enterprises scheme to deceive consumers by amending the SAE J1940 horsepower labeling standard. These minutes were also transmitted through the mails and wires to members of the OPEI Enterprise, including Defendant MTD. It is a foreseeable consequence of the Eagle Group/SAE Enterprises scheme that representatives of the SAE would use the interstate mails and wires in furtherance of the Eagle Group/SAE Enterprises scheme to deceive consumers. Defendants Briggs & Stratton, Kohler and

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Tecumseh, as members of the Eagle Group/SAE Enterprise, each caused this specific use of the United States mail in furtherance of the Eagle Group/SAE Enterprises fraudulent scheme. c. On July 10, 2001, William G. Harley and Patrick W. Curtiss of the OPEI

mailed, or caused to be mailed, across state boundaries to members of the OPEI Enterprise and the Power Labeling Task Force Enterprise, including Defendant MTD, a memorandum listing the uniform means by which the OPEI Enterprise and Power Labeling Task Force Enterprise intended to misrepresent horsepower testing procedures and to conceal Defendants fraudulent horsepower labeling practices from the consuming public. The memorandum was also transmitted via interstate wires through email and facsimile to members of the OPEI Enterprise and the Power Labeling Task Force Enterprise. It is a foreseeable consequence of the OPEI Enterprises scheme, and the Power Labeling Task Force Enterprises scheme, that representatives of the OPEI would use the interstate mails and wires in furtherance of the Enterprises schemes to deceive consumers. Defendants Honda, Briggs & Stratton, Deere, Electrolux, Kawasaki, Kohler, Tecumseh, MTD and Toro, as members of the OPEI Enterprise, and the Power Labeling Task Force Enterprise, each caused this specific use of the United States mail in furtherance of the Enterprises fraudulent schemes. d. On April 20, 2004, Roger Gault of the Engine Manufacturers Association

(EMA) in Chicago, Illinois, mailed, or caused to be mailed, across state boundaries an agenda of a meeting of the Power Labeling Task Force Enterprise to members of that enterprise, including Hartmut Kaesgen of MTD. The agenda was also transmitted via interstate wires through email and facsimiles to members of the Power Labeling Task Force Enterprise. This agenda was mailed in furtherance of the Power Labeling Task Force Enterprises fraudulent scheme. It is a foreseeable consequence of the Power Labeling Task Forces scheme that

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representatives of the EMA would use the interstate mails and wires in furtherance of the Power Labeling Task Force Enterprises scheme to deceive consumers. Defendants Honda, Briggs & Stratton, Deere, Electrolux, Kawasaki, Kohler, Tecumseh, MTD and Toro, as members of the Power Labeling Task Force Enterprise, each caused this specific use of the United States mail in furtherance of the Power Labeling Task Force Enterprises fraudulent scheme. e. On February 22, 1999, Bruce Meunier of Briggs & Stratton transmitted

via email across state boundaries a message to Harmut Kaesgen of MTD in furtherance of the schemes of both the Power Labeling Task Force Enterprise and the OPEI Enterprise to defraud consumers by allowing Defendants Briggs & Stratton and MTD to charge consumers more for the same engine depending on the labeled horsepower. Defendants Honda, Briggs & Stratton, Deere, Electrolux, Kawasaki, Kohler, Tecumseh, MTD and Toro, as members of the OPEI Enterprise and the Power Labeling Task Force Enterprise, each caused this specific, foreseeable use of the interstate wires in furtherance of the fraudulent schemes of the OPEI Enterprise and the Power Labeling Task Force Enterprise. f. On March 25, 1999, Bruce Meunier of Briggs & Stratton transmitted via

email across state boundaries a message to Andy Outcalt of MTD in furtherance of the schemes of both the Power Labeling Task Force Enterprise and the OPEI Enterprise to defraud consumers by allowing Defendants Briggs & Stratton and MTD to charge consumers more for the same engine depending on the labeled horsepower. Defendants Honda, Briggs & Stratton, Deere, Electrolux, Kawasaki, Kohler, Tecumseh, MTD and Toro, as members of the OPEI Enterprise and the Power Labeling Task Force Enterprise, each caused this specific use of the interstate wires in furtherance of the fraudulent schemes of the OPEI Enterprise and the Power Labeling Task Force Enterprise.

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g.

On the SAE website, there are currently available copies of the amended

J1940 horsepower labeling standard, including the fraudulent rationale adopted at the urging of the Eagle Group/SAE Enterprise. Plaintiff, the consuming public and any interested person have access to the amended standard and fraudulent rationale continuously via the Internet. Copies of the standard and rationale are purchased on a regular basis over the Internet and transmitted by representatives of the SAE via email or facsimile through the interstate wires, or through the United States mails, to consumers and others. The transmission of the fraudulently amended J1940 horsepower labeling standard and the fraudulent rationale stating the purported reasons for the amendment via the interstate wires and mails furthers the Eagle Group/SAE Enterprises scheme to deceive consumers. This use of the mails and wires is a natural and foreseeable consequence of the Eagle Group/SAE Enterprises scheme to deceive consumers. Defendants Briggs & Stratton, Kohler and Tecumseh caused this use of the mails and wires in furtherance of the Eagle Group/SAE Enterprises scheme. h. On April 9, 2002, Defendant Sears transmitted via the interstate wires the

press release described above to PRNewswire, and to the consuming public at large, from its Hoffman, Illinois headquarters across state boundaries to consumers across the country. The press release was transmitted in furtherance of the Craftsman Exclusive Enterprises scheme to deceive consumers. The transmission of this press release through the interstate wires is the natural and foreseeable consequence of the Craftsman Exclusive Enterprises scheme to deceive consumers. Defendants Briggs & Stratton, Kohler, Electrolux and Sears, as members of the Craftsman Exclusive Enterprise, each caused this specific use of the interstate wires in furtherance of the Craftsman Exclusive Enterprises fraudulent scheme.

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i.

In addition to the April 9, 2002 transmission of the press release via the

interstate wires, the press release is currently transmitted continuously to consumers via Searss website. The transmission of this press release through the interstate wires is the natural and foreseeable consequence of the Craftsman Exclusive Enterprises scheme to deceive consumers. Defendants Briggs & Stratton, Kohler, Electrolux and Sears, as members of the Craftsman Exclusive Enterprise, each caused this specific use of the interstate wires in furtherance of the Craftsman Exclusive Enterprises fraudulent scheme. j. Currently on the OPEI website is a section entitled Understanding

Horsepower Ratings. The OPEI Enterprise has caused to be transmitted to the consuming public misleading statements about horsepower testing procedures and labeling practices in furtherance of the OPEI Enterprises scheme. Defendants Honda, Briggs & Stratton, Deere, Electrolux, Kawasaki, Kohler, Tecumseh, MTD and Toro, as members of the OPEI Enterprise, each caused this specific use of the interstate wires in furtherance of the OPEI Enterprises fraudulent scheme. Not only was the transmission of these misleading statements made at the direction of the OPEI Enterprise, the transmission of the misleading statements contained in this interstate wire transmission is the natural and foreseeable consequence of the OPEI Enterprises scheme to deceive consumers. k. On June 4, 2004, Roger Gault of the EMA mailed, or caused to be mailed,

a Summary of a June 2, 2004 Meeting of the Power Labeling Task Force Enterprise, through the United States mails to members of the Power Labeling Task Force Enterprise, including Harmut Kaesgen of MTD, in furtherance of the Power Labeling Task Force Enterprises scheme to misrepresent horsepower to the consuming public and to conceal truthful horsepower information. This summary was also transmitted via the interstate wires through emails and

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facsimiles to members of the Power Labeling Task Force Enterprise. The summary discusses the Power Labeling Task Force Enterprises agreement to further amend SAE J1940 to facilitate the Power Labeling Task Force Enterprises scheme. The summary also discusses the Power Labeling Task Force Enterprises scheme to use different terminology to conceal Defendants horsepower overstatements. It is a foreseeable consequence of the Power Labeling Task Force Enterprises scheme that representatives of the EMA would use the interstate mails and wires in furtherance of the Power Labeling Task Force Enterprises scheme to deceive consumers. Defendants Honda, Briggs & Stratton, Deere, Electrolux, Kawasaki, Kohler, Tecumseh, MTD and Toro, as members of the Power Labeling Task Force Enterprise, each caused this specific use of the United States mail in furtherance of the Power Labeling Task Force Enterprises fraudulent scheme. l. On May 26, 2004, a conference call was held among members of the

Power Labeling Task Force Enterprise, including Defendants Honda, Briggs & Stratton, Deere, Electrolux, Kawasaki, Kohler, Tecumseh, MTD and Toro, as well as Roger Gault of the EMA. During this conference call, communications in furtherance of the Power Labeling Task Force Enterprises scheme were transmitted via the interstate wires through telephone lines. Specifically, the Power Labeling Task Force Enterprise used the interstate wires to discuss amending the SAE J1940 horsepower labeling standard in furtherance of the Power Labeling Task Force Enterprises scheme to deceive consumers. On May 26, 2004, a summary of this conference call was also transmitted by Roger Gault of the EMA via the United States mail to members of the Power Labeling Task Force Enterprise, including Hartmut Kaesgen of MTD. The summary was also transmitted to members of the Power Labeling Task Force Enterprise via interstate wires through emails and facsimiles. It is a foreseeable consequence of the Power

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Labeling Task Force Enterprises scheme that representatives of the EMA would use the interstate mails and wires in furtherance of the Power Labeling Task Force Enterprises scheme to deceive consumers. It is also foreseeable that the interstate wires would be used by members of the Power Labeling Task Force Enterprise to communicate via telephone with other members in furtherance of the Enterprises scheme. Defendants Honda, Briggs & Stratton, Deere, Electrolux, Kawasaki, Kohler, Tecumseh, MTD and Toro, as members of the Power Labeling Task Force Enterprise, each caused this specific use of the United States mail, and the interstate telephone lines, in furtherance of the Power Labeling Task Force Enterprises fraudulent scheme. m. On May 21, 2004, Muriel Walter of the EMA transmitted via the interstate

wires an email to members of the Power Labeling Task Force Enterprise, including Hartmut Kaesgen of MTD, in furtherance of the Enterprises scheme to deceive consumers. It is a foreseeable consequence of the Power Labeling Task Force Enterprises scheme that representatives of the EMA would use the interstate wires in furtherance of the Power Labeling Task Force Enterprises scheme to deceive consumers. Defendants Honda, Briggs & Stratton, Deere, Electrolux, Kawasaki, Kohler, Tecumseh, MTD and Toro, as members of the Power Labeling Task Force Enterprise, each caused this specific use of the interstate wires in furtherance of the Power Labeling Task Force Enterprises fraudulent scheme. n. On May 21, 2004, Jed R. Mandel of the EMA mailed, or caused to be

mailed, across state boundaries a Meeting Notice to members of the Power Labeling Task Force Enterprise, including Hartmut Kaesgen of MTD, in furtherance of the Enterprises scheme to deceive consumers. This notice was also transmitted via interstate wires through email and facsimiles. It is a foreseeable consequence of the Power Labeling Task Force Enterprises scheme that representatives of the EMA would use the interstate mails and wires in furtherance

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of the Power Labeling Task Force Enterprises scheme to deceive consumers. Defendants Honda, Briggs & Stratton, Deere, Electrolux, Kawasaki, Kohler, Tecumseh, MTD and Toro, as members of the Power Labeling Task Force Enterprise, each caused this specific use of the United States mail in furtherance of the Power Labeling Task Force Enterprises fraudulent scheme. o. On May 19, 2004, Roger Gault of the EMA mailed, or caused to be

mailed, across state boundaries a Schedule to members of the Power Labeling Task Force Enterprise, including Hartmut Kaesgen of MTD, in furtherance of the Enterprises scheme to deceive consumers. The Schedule was also transmitted via the interstate wires through email and facsimile on numerous occasions. For instance, on May 19, 2004, Kristin A. Graczyk of the EMA, on behalf of Roger Gault, transmitted via the interstate wires an email of the Schedule to Patty Hanz of Briggs & Stratton, Hartmut Kaesgen of MTD, James McNew of Electrolux and Rick Shoemaker of Kohler in furtherance of the Enterprises scheme to deceive consumers. It is a foreseeable consequence of the Power Labeling Task Force Enterprises scheme that representatives of the EMA would use the interstate mails and wires in furtherance of the Power Labeling Task Force Enterprises scheme to deceive consumers. Defendants Honda, Briggs & Stratton, Deere, Electrolux, Kawasaki, Kohler, Tecumseh, MTD and Toro, as members of the Power Labeling Task Force Enterprise, each caused this specific use of the United States mail in furtherance of the Power Labeling Task Force Enterprises fraudulent scheme. p. On May 13, 2004, a conference call was held among members of the

Power Labeling Task Force Enterprise, including Defendants Honda, Briggs & Stratton, Deere, Electrolux, Kawasaki, Kohler, Tecumseh, MTD and Toro, as well as Roger Gault of the EMA. During this conference call, communications in furtherance of the Power Labeling Task Force

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Enterprises scheme were transmitted via the interstate wires through telephone lines. Specifically, the Power Labeling Task Force Enterprise used the interstate wires to discuss using alternative, deceptive terminology in furtherance of the Power Labeling Task Force Enterprises scheme to deceive consumers. On May 13, 2004, a summary of this conference call was also transmitted by Roger Gault of the EMA via the United States mail to members of the Power Labeling Task Force Enterprise, including Hartmut Kaesgen of MTD. The summary was also transmitted to members of the Power Labeling Task Force Enterprise via interstate wires through emails and facsimiles. It is a foreseeable consequence of the Power Labeling Task Forces scheme that representatives of the EMA would use the interstate mails and wires in furtherance of the Power Labeling Task Force Enterprises scheme to deceive consumers. It is also foreseeable that the interstate wires would be used by members of the Power Labeling Task Force Enterprise to communicate via telephone with other members in furtherance of the Enterprises scheme. Defendants Honda, Briggs & Stratton, Deere, Electrolux, Kawasaki, Kohler, Tecumseh, MTD and Toro, as members of the Power Labeling Task Force Enterprise, each caused this specific use of the United States mail, and the interstate telephone lines, in furtherance of the Power Labeling Task Force Enterprises fraudulent scheme. q. On May 10, 2004, Roger Gault of the EMA mailed, or caused to be

mailed, across state boundaries an agenda for a conference call to members of the Power Labeling Task Force Enterprise, including Hartmut Kaesgen of MTD, in furtherance of the Enterprises scheme to deceive consumers. The agenda was also transmitted via the interstate wires through email and facsimiles to members of the Enterprise. It is a foreseeable consequence of the Power Labeling Task Force Enterprises scheme that representatives of the EMA would use the interstate wires in furtherance of the Power Labeling Task Force Enterprises scheme to

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deceive consumers. Defendants Honda, Briggs & Stratton, Deere, Electrolux, Kawasaki, Kohler, Tecumseh, MTD and Toro, as members of the Power Labeling Task Force Enterprise, each caused this specific use of the interstate wires in furtherance of the Power Labeling Task Force Enterprises fraudulent scheme. r. On May 18, 2004, Muriel Walter of EMA transmitted via the interstate

wires though email meeting notes and a meeting notice to members of the Power Labeling Task Force Enterprise, including Dave Holm of Deere, Patty Hanz of Briggs & Stratton, Hartmut Kaesgen of MTD, James McNew of Electrolux, Jeff Shetler of Kawasaki, Jerry Patrin of Toro, Rick Shoemaker of Kohler, Thomas Savage of Briggs & Stratton, Terry Wade of Honda, Dick Fotsch of Kohler, Pete Hotz of Briggs & Stratton, Marv Klowak of Briggs & Stratton, Paul Krishnan of Tecumseh, Thomas Rugg of Briggs & Stratton and other representatives of Defendants. This email was transmitted in furtherance of the Enterprises scheme to deceive consumers. It is a foreseeable consequence of the Power Labeling Task Force Enterprises scheme that representatives of the EMA would use the interstate wires in furtherance of the Power Labeling Task Force Enterprises scheme to deceive consumers. Defendants Honda, Briggs & Stratton, Deere, Electrolux, Kawasaki, Kohler, Tecumseh, MTD and Toro, as members of the Power Labeling Task Force Enterprise, each caused this specific use of the interstate wires in furtherance of the Power Labeling Task Force Enterprises fraudulent scheme. s. On May 3, 2004, Roger Gault of the EMA mailed, or caused to be mailed,

across state boundaries a meeting summary to members of the Power Labeling Task Force Enterprise and the OPEI Enterprise, including Hartmut Kaesgen of MTD, in furtherance of the Enterprises schemes to deceive consumers. The summary discussed the information posted on OPEIs website, revisions to SAE J1940, postings by [C]ARB and EPA to their respective

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Websites, and other background information. The summary was also transmitted via the interstate wires through email and facsimiles to members of the Enterprises. The transmission of this summary through the United States mails and via the interstate wires was in furtherance of the Enterprises schemes to deceive consumers. It is a foreseeable consequence of the Power Labeling Task Force Enterprises scheme, and the OPEIs scheme, that representatives of the EMA would use the United States mails, and the interstate wires, in furtherance of the Enterprises schemes to deceive consumers. Defendants Honda, Briggs & Stratton, Deere, Electrolux, Kawasaki, Kohler, Tecumseh, MTD and Toro, as members of the Power Labeling Task Force Enterprise and the OPEI Enterprise, each caused this specific use of the United States mails in furtherance of the Power Labeling Task Force Enterprises fraudulent scheme. 141. Defendants misrepresent horsepower, and otherwise conduct the affairs of the

enterprises, through the use of the United States mails and through transmissions by wire, radio, telephone, email and Internet. Defendants use of the mail and wires include, but are not limited to: a) Defendants dissemination of marketing and promotional publications, as well as communications over the Internet and traditional broadcast media; b) Defendants communications of horsepower to the EPA, as well as to the CARB; c) Defendants communications with and among the other Defendants regarding horsepower labeling issues through the United States mails, over the telephone or through email; and d) Defendants communications to the consuming public via the United States mail and via the Internet. Defendants use of the mails and wires advanced the fraudulent schemes of each enterprise. 142. Defendants use of the mails and wires form a pattern of racketeering activity as

Defendants use of the mails and wires is related to their common objectives of misrepresenting horsepower to the consuming public, misinforming the consuming public about horsepower

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labeling practices and testing methodologies, and concealing material facts about horsepower and horsepower testing and labeling practices from the consuming public. Defendants acts and omissions had the same purpose, results, victims and methods of commission. These acts have been continuously and repeatedly committed throughout the RICO Class Period. Defendants continue to misrepresent horsepower, affirmatively act to conceal truthful horsepower information and omit material information regarding their horsepower labeling practices and testing methodologies from the consuming public. Given the continuity of Defendants acts and omissions, and the continuous use of the mails and wires in furtherance of the fraudulent schemes of each enterprise, the threat of future acts and omissions is significant. Defendants continue to commit the predicate acts of mail and wire fraud. 143. Defendants, through the various RICO enterprises, engaged in and affected

interstate commerce because they engaged in the following activities across state boundaries: the sale and purchase of lawn mower engines, the transmission of advertising, sales and marketing literature, the transmission of invoices and payments, and communications among and between Defendants, all of which occurred through the wires or via United States mail, as well as travel across state boundaries by numerous individual RICO participants in furtherance of the various RICO Enterprises fraudulent schemes. 144. Defendants operated collectively, pursuant to a conspiratorial agreement, united

by a common purpose to defraud the public and as a continuing unit to perpetrate the fraudulent schemes relating to the marketing and sale of significantly overstated lawn mower engines to the consuming public and preventing the consuming public from detecting the fraudulent schemes. 145. In agreeing to participate in the conduct of the affairs of the RICO enterprises

schemes to significantly misrepresent horsepower, disseminate misleading information regarding

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horsepower, and conceal their fraudulent practices, each Defendant also conspired to violate 18 U.S.C. 1962(c), in violation of 18 U.S.C. 1962(d). 146. Plaintiff and the Nationwide Class were injured by reason of Defendants

violations of 1962(c) and (d). Plaintiffs and the Nationwide Classs injuries were the foreseeable and anticipated consequences of Defendants schemes to defraud consumers through the various RICO enterprises. 147. Defendants pattern of racketeering activity directly and proximately caused

Plaintiff and the Nationwide Class to suffer injury to their property. 148. Plaintiff and the Nationwide Class were deceived by Defendants

misrepresentations and paid money for lawn mowers with a stated horsepower, but instead, received lawn mowers with a lower-than-stated horsepower. 149. As a result of Defendants conduct, Plaintiff and the Nationwide Class were

deprived of the opportunity to make informed purchasing decisions, and denied the opportunity to refuse to do business with companies, like Defendants, engaged in fraudulent and deceptive conduct. 150. Under the provisions of Section 1962(c) and (d), Defendants are jointly and

severally liable to Plaintiff and the Nationwide Class for three times the damages that Plaintiff has sustained, plus costs of bringing suit, including reasonable attorneys fees. COUNT 2 VIOLATIONS OF THE NEW MEXICO UNFAIR PRACTICES ACT (On Behalf of Plaintiff and the New Mexico Class) 151. 152. Plaintiff realleges and incorporates all prior paragraphs of this Complaint. The New Mexico Unfair Practices Act, N.M. Stat. Ann. 57-12-3 (West 2008),

provides as follows:

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Unfair or deceptive trade practices and unconscionable trade practices in the conduct of any trade or commerce are unlawful. 153. The New Mexico Unfair Practices Ac, N.M. Stat. Ann. 57-12-2(D)(5), (7), (14),

and (E)(1) and (2) (West 2008), provides as follows: As used in the Unfair Practices Act: D. unfair or deceptive trade practice means an act specifically declared unlawful pursuant to the Unfair Practices Act, a false or misleading oral or written statement, visual description or other representation of any kind knowingly made in connection with the saleof goods or servicesby a person in the regular course of his trade or commerce, which may, tends to or does deceive or mislead any person and includes: (5) representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they do not have; (7) representing that goods or services are of a particular standard, quality or grade or that goods are of a particular style or model if they are of another; (14) using exaggeration, innuendo or ambiguity as to a material fact or failing to state a material fact if doing so deceives or tends to deceive; E. unconscionable trade practice means an act or practice in connection with the sale, lease, rental or loan, or in connection with the offering for sale, lease, rental or loan, of any goods or serviceswhich to a person's detriment: (1) takes advantage of the lack of knowledge, ability, experience or capacity of a person to a grossly unfair degree; or (2) results in a gross disparity between the value received by a person and the price paid.

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151.

Defendants business practices, in advertising, marketing and selling their lawn

mowers and lawn mower engines, of knowingly, or with reason to know, misrepresenting and overstating the horsepower of their lawn mowers and lawn mower engines, when, in fact, the actual horsepower of Defendants lawn mowers or lawn mower engines is less than as represented by Defendants, constitute unfair or deceptive trade practices and unconscionable trade practices and thus, constitute multiple, separate violations of N.M. Stat. Ann. 57-12-3 and 57-12-2(D)(5), (7), (14), and (E)(1) and (2) (West 2008), including: a. Making false representations, knowingly or with reason to know, that

Defendants lawn mowers and lawn mower engines have characteristics, uses, benefits or quantities of producing the horsepower represented by Defendants, when, in fact, they do not and Defendants know, or have reason to know, that the actual horsepower of such products is less than the horsepower represented by Defendants; b. Making false representations, knowingly or with reason to know, that

Defendants lawn mowers and lawn mower engines are of a particular standard, style or model in producing the horsepower represented by Defendants, when, in fact, they are not and do not, and Defendants know, or have reason to know, that the actual horsepower produced by Defendants lawn mowers and lawn mower engines is less than the horsepower as represented by Defendants; c. Committing unfair or deceptive trade practices and unconscionable trade

practices as defined in the New Mexico Unfair Practices Act, N.M. Stat. Ann. 57-12-2(D)(5), (7), (14), and (E)(1) and (2) (West 2008), by misrepresenting and overstating the horsepower of Defendants lawn mowers and lawn mower engines, when, in fact the actual horsepower

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produced by Defendants lawn mowers and lawn mower engines is less than as represented by Defendants. 152. Defendants business practices, in advertising, marketing and selling their lawn

mowers and lawn mower engines while misrepresenting the horsepower of such products, of failing to disclose material information, including the true, lower horsepower of their lawn mowers and lawn mower engines, constitute unfair or deceptive and unlawful acts or practices and, thus, constitute multiple, separate violations of N.M. Stat. Ann. 57-12-2(D)(14) (West 2008). 153. Defendants business practices of advertising, marketing and selling lawn mowers

containing identical engines that produce the same horsepower as different products at different prices (higher prices for falsely represented higher horsepower), while misrepresenting the horsepower of such products and failing to disclose, suppressing, concealing or omitting material facts, including the fact that the engines are identical and the true, lower horsepower of such products, constitute unfair or deceptive and unlawful acts or practices and, thus, constitute multiple, separate violations of N.M. Stat. Ann. 57-12-3 and 57-12-2(D)(5), (7), (14), and (E)(1) and (2) (West 2008), including: a. Making false representations, knowingly or with reason to know, that such

lawn mowers have characteristics, uses, benefits or quantities, including that they are different products and that they produce the horsepower represented by Defendants, when, in fact, they are not and do not; b. Representing, knowingly or with reason to know, that such lawn mowers

are of a particular standard, style or model, including that they are different products and that they produce the horsepower represented by Defendants, when, in fact, they are not and do not;

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c.

Failing to disclose material information, including the facts that the

engines are identical and the true, lower horsepower produced by Defendants products; d. Committing unfair or deceptive trade practices and unconscionable trade

practices as defined in the New Mexico Unfair Practices Act, N.M. Stat. Ann. 57-12-2(D)(5), (7), (14), and (E)(1) and (2) (West 2008). 154. In advertising, marketing and selling Defendants lawn mowers and lawn mower

engines, Defendants made the material misrepresentations and omissions set forth in this Complaint in Defendants advertising, including labeling, packing materials, owners manuals, websites, point-of-sale materials and other promotional materials disseminated by or on behalf of Defendants in New Mexico. 155. Defendants unfair or deceptive trade practices and unlawful practices, including

Defendants misrepresentations and omissions, set forth in this Complaint are material in that they relate to matters that would likely influence the purchasing decisions or conduct of consumers, including Plaintiff and members of the New Mexico Class, regarding Defendants products. 156. Defendants knowingly made the false and misleading representations and

omissions set forth in this Complaint in connection with the sale of goods, specifically their lawn mowers and lawn mower engines, and in the regular course of Defendants business. 157. Defendants false and misleading representations and omissions and unfair or

deceptive trade practices and unconscionable trade practices had the tendency to, or did deceive Plaintiff and members of the New Mexico Class. 158. Defendants unfair or deceptive acts or practices are part of a pattern of conduct

by Defendants to defraud the public, are ongoing, have the potential for repetition, and are likely

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to continue to harm Plaintiff and the public and frustrate the public interest in truthful, nondeceptive advertising, marketing and sales practices. 159. As a direct and proximate result of Defendants unfair or deceptive practices,

Plaintiff and the New Mexico Class have suffered a loss of money or property and are entitled to actual damages, injunctive relief, attorneys fees, costs, and any other relief that the Court deems proper pursuant to N.M. Stat. Ann. 57-12-10 (2008). 160. Defendants willfully engaged in the unfair or deceptive trade practices and

unconscionable trade practices set forth in this Complaint. Plaintiff and the New Mexico Class are entitled to three times their actual damages pursuant to N.M. Stat. Ann. 57-12-10(B) and (E) (2008). COUNT 3 COMMON LAW UNJUST ENRICHMENT (On Behalf of Plaintiff and the New Mexico Class) 161. 162. Plaintiff realleges and incorporates all prior paragraphs of this Complaint. Plaintiff, on behalf of himself and the New Mexico Class, brings a common law

claim for unjust enrichment. 163. By means of the unlawful conduct set forth in this Complaint including

Defendants conduct in violation of the Racketeer Influenced Corrupt Organizations Act, federal and state antitrust laws, unfair, deceptive, or unconscionable acts or practices and false or misleading advertising in violation of New Mexicos consumer laws, and Defendants conspiracy to defraud the public Defendants knowingly advertised and sold to Plaintiff and members of the New Mexico Class thousands of lawn mowers and lawn mower engines which were not as represented by Defendants, produced less horsepower than as represented by Defendants, and/or, contrary to Defendants misrepresentations and omissions, were not different

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products but contained identical engines that produced the same horsepower and were advertised and sold by Defendants at different prices (higher prices for falsely represented higher horsepower). 164. As a result of their unlawful conduct as set forth in this Complaint, Defendants

have knowingly realized substantial revenue from sales of Defendants lawn mowers and lawn mower engines at the expense, and to the detriment or impoverishment, of Plaintiff and members of the New Mexico Class and to the benefit and enrichment of Defendants. Defendants have thereby violated fundamental principles of justice, equity and good conscience. 165. Plaintiff and members of the New Mexico Class have conferred significant

financial benefits and have paid substantial compensation to Defendants for products that were not as represented by Defendants. 166. It is inequitable and unjust for Defendants to retain the proceeds they have

received and continue to receive, without justification, based on sales of Defendants misrepresented products to Plaintiff and members of the New Mexico Class. Defendants knowingly received and retained such benefits and funds from Plaintiff and members of the New Mexico Class. Defendants retention of such funds under circumstances making it inequitable to do so constitutes common law unjust enrichment. 167. Plaintiff and the New Mexico Class have no adequate remedy at law for

Defendants unjust enrichment. 168. Plaintiff and members of the New Mexico Class seek an order mandating

restitution and disgorgement of monies Defendants have unjustly obtained and the restoration of such ill-gotten monies to Plaintiff and members of the New Mexico Class.

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COUNT 4 VIOLATIONS OF FEDERAL ANTITRUST LAWS (On behalf of Plaintiff and the Nationwide Class) 169. Plaintiff incorporates by reference the allegations in the above paragraphs as if

fully set forth herein. 170. The horsepower of Defendants lawn mowers serves as a proxy for the price of

lawn mowers: the higher the horsepower, the higher the price. 171. By misrepresenting the true horsepower of their lawn mowers or lawn mower

engines and by charging higher prices for lawn mowers with false higher horsepower labels, Defendants charged more for their lawn mowers than they could have charged without their unlawful conduct. 172. Defendants have fixed, raised, maintained or stabilized prices of lawn mowers, in

violation of the antitrust laws, by using horsepower as a proxy for price. 173. During the class period, Defendant engine manufacturers charged Defendant

original lawn mower equipment manufacturers prices for lawn mower engines based upon the level of the horsepower label that was placed on or applied to the engine and/or the lawn mower. Similarly, the consuming public was charged based upon the level of horsepower label placed on or applied to the engine and/or the lawn mower. 174. To determine the prices charged for lawn mower engines, certain Defendants

would set a base price for the engines and thenafter lawn mowers were manufactured and applied with fraudulent horsepower labelsengage in a reconciliation process through which Defendant engine manufacturers would receive payments from Defendant original lawn mower equipment manufacturers for higher-labeled engines and provide discounts or rebates for lowerlabeled engines. Given the Defendant lawn mower manufacturers thin margins, the increased

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price for fictitious higher horsepower was passed on entirely to the class members, the effect of which was that class member paid artificially higher prices and were injured. 175. Both Defendant engine manufacturers and Defendant lawn mower manufacturers

charged higher prices for fraudulently higher-labeled engines and lawn mowers. As such, labeled horsepower served as a proxy for price. Through this conspiracy, Defendants fixed, raised, maintained or stabilized prices of lawn mowers, in violation of the antitrust laws. 176. In addition to the meetings to discuss the horsepower labeling fraud described

above, Defendants met regularly to discuss products and pricing. There were numerous pricing meetings between a Defendant engine manufacturer and a Defendant lawn mower manufacturer. In addition, as part of the Eagle Group, Defendant engine manufacturers Kohler, Briggs and Tecumseh met in secret to discuss industry issues related to the horsepower fraud. All Defendants knew of the industrys fraudulent horsepower labeling practices and conspiracy. 177. At these meetings, and at other times, Defendants discussed horsepower labeling

and the associated pricing to specific retail customers. 178. Ultimately, the price of a lawn mower engine depended upon the horsepower

label applied to that engine. Generally, the higher the horsepower, the more a consumer would pay. Defendants, in one example, used one engine model labeled with five different fraudulent horsepower labels and charged five different prices for the identical engines: one price for each label. 179. Some Defendants also restrained trade in other ways. For instance, Briggs

manipulated the consumer-level lawn mower market. Briggs agreed with at least some Defendant lawn mower manufacturers that the engine suppliers would charge different prices for engines to be installed in lawn mowers based, in part, on which retailer would receive the

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manufactured lawn mowers. By charging OEMs different prices for engines that would be sold in lawn mowers to certain retailers, certain Defendants were able steer certain lawn mower models and prices to certain retailers, which restrainedor eliminatedcompetition in both the lawn mower and lawn mower engine markets. Ultimately, this restrained competition injured lawn mower consumers, who were deprived of a free and open market unfettered by anticompetitive conspiracy. 180. By reason of the foregoing, Defendants have entered into a trust, contract,

combination, understanding, and agreement in restraint of trade in violation of Section 1 of the Sherman Act, 15 U.S.C. 1. 181. As a result of Defendants violations of the statutes set forth above, Plaintiff and

members of the Nationwide Class are entitled to injunctive relief and costs of suit, including reasonable attorneys fees, pursuant to Clayton Act Sections 4 and 16, 15 U.S.C. 15 and 26. COUNT 5 VIOLATIONS OF STATE ANTITRUST LAWS (On behalf of Plaintiff and the Indirect Purchaser Class) 182. Plaintiff incorporates by reference the allegations in the above paragraphs as if

fully set forth herein. 183. By reason of the foregoing, Defendants have entered into a trust, contract,

combination, understanding, and agreement in restraint of trade in violation of Arizona Revised Stat. 44-1401 et seq.; California Bus. & Prof. Code 16701 et seq.; District of Columbia Code Ann. 28-4501 et seq.; Iowa Code 553.1 et seq.; Kansas Stat. Ann. 50-101 et seq.; Maine Rev. Stat. Ann. tit. 10, 1101 et seq.; Michigan Comp. Laws. Ann. 445.771 et seq.; Minnesota Stat. 325D.49 et seq.; Mississippi Code Ann. 75-21-1 et seq.; Nebraska Rev. Stat. 59-801 et seq. and 59-1601 et seq.; Nevada Rev. Stat. Ann. 598A et seq.; New Hampshire Revised

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Stat. 356:1 et seq.; New Mexico Stat. Ann. 57-1-1 et seq.; North Carolina Gen. Stat. 75-1 et seq.; North Dakota Cent. Code 51-08.1-01 et seq.; Puerto Rico Code 10 LPRA 257 et seq.; South Dakota Codified Laws 37-1-3.1 et seq.; Tennessee Code Ann. 47-25-101 et seq.; Utah Code Ann. 76-10-911 et seq.; Vermont Stat. Ann. tit. 9, 2451 et seq.; West Virginia 47-181 et seq.; Wisconsin Stat. 133.01 et seq.; and Wyoming Stat. Ann. 40-4-101 et seq. 184. Members of the Indirect Purchaser Class in each of the states listed above paid

supra-competitive, artificially inflated prices for lawn mowers. As a direct and proximate result of Defendants unlawful conduct, Plaintiff and members of the Indirect Purchaser Class have been injured in their business and property in that they paid more for lawn mowers than they otherwise would have paid in the absence of Defendants unlawful conduct. 185. As a result of Defendants violations of the statutes set forth above, Plaintiff and

members of the Indirect Purchaser Class seek damages and costs of suit, including reasonable attorneys fees. COUNT 6 STATE CONSUMER PROTECTION AND UNFAIR COMPETITION LAWS (On behalf of Plaintiff and the Indirect Purchaser Class) 186. Plaintiff incorporates by reference the allegations in the above paragraphs as if

fully set forth herein. 187. By reason of the foregoing, Defendants have engaged in unfair, unconscionable,

deceptive, and fraudulent acts or practices in violation of Arkansas Code 4-88-101 et seq.; California Bus. & Prof. Code 17200 et seq.; District of Columbia Code 28-3901 et seq.; Florida Stat. 501.201 et seq.; Kansas Stat. 50-623 et seq.; Maine Rev. Stat. Ann. tit. 5 205A et seq.; Massachusetts General Laws, Chapter 93A, 1 et seq.; Nebraska Revised Statutes 59-1601 et seq.; Nevada Revised Statutes 598.0903 et seq.; New Mexico Stat. 57-12-1 et

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seq.; North Carolina General Statutes 75-1.1 et seq; Utah Code 13-11-1 et. seq.; Vermont Statutes, Title 9, 2451 et. seq.; West Virginia Code 46A-6-101 et seq.; and Wisconsin Stat. 100.20 et seq. 188. Defendants have also violated New York Gen. Bus. Law 349 et seq.

Specifically: (a) Defendants engaged in commerce in New York; (b) Defendants and their coconspirators secretly agreed to mislabel horsepower (a proxy for price) and thereby inflate prices for lawn mowers sold to New York consumers by direct agreement and through artificial supply restraints on the lawn mower market; (c) New York consumers were targets of the conspiracy; (d) the secret agreements were not known to New York consumers; (e) Defendants: (i) made public statements about the prices of lawn mowers that Defendants knew, or should have known, would be seen by New York consumers; (ii) such statements either omitted material information that rendered the statements made materially misleading or affirmatively misrepresented the real, lower, horsepower (a proxy for price) of lawn mowers; and (iii) Defendants alone possessed material information that was relevant to New York consumers, but failed or refused to provide such information; (f) due to Defendants unlawful trade practices in the State of New York, there was a broad affect on New York consumer Class members who indirectly purchased lawn mowers such that New York consumer Class members have been injured because they paid more for lawn mowers than they would have paid absent Defendants unlawful trade practices, acts, and conduct; (g) due to Defendants unlawful trade practices in the State of New York, New York consumer Class members who indirectly purchased lawn mowers were misled to believe that they were paying a fair price for lawn mowers. Similarly situated New York consumers potentially were affected by Defendants unlawful conduct; (h) Defendants knew, or should have known, that their unlawful trade practices with respect to pricing lawn mowers would have an

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affect on New York consumers that was not limited to Defendants direct customers; (i) Defendants knew, or should have known, that their unlawful trade practices with respect to pricing lawn mowers would have a broad affect causing New York consumer Class members who indirectly purchased lawn mowers to be injured by paying more for lawn mowers than they would have paid absent Defendants unlawful trade practices and acts; and (j) Defendants consumer-oriented violations adversely affected the public interest in the State of New York. 189. Defendants have also violated Rhode Island Gen. Laws 6-13.1-1 et seq.

Specifically: (a) Defendants engaged in commerce in Rhode Island; (b) Defendants and their coconspirators unscrupulously and secretly agreed to mislabel horsepower (a proxy for price) and thereby inflate lawn mower prices charged to Defendants customers located in Rhode Island by direct agreement and through artificial supply restraints on the lawn mower market; (c) these secret agreements were not known to Rhode Island natural persons who indirectly purchased lawn mowers primarily for personal, family, or household purposes; (d)(i) Defendants made public statements that Defendants knew, or should have known, would be seen by Rhode Island natural persons who indirectly purchased lawn mowers primarily for personal, family, or household purposes; (ii) such statements created a likelihood of confusion or misunderstanding with respect to the real horsepower (a proxy for price) of lawn mowers; and (iii) such statements either omitted material information that rendered such statements materially misleading and confusing, or affirmatively deceived Rhode Island consumers about the real horsepower (a proxy for price) of lawn mowers; (e) because of Defendants unlawful and unscrupulous trade practices in Rhode Island, natural persons in Rhode Island who indirectly purchased lawn mowers primarily for personal, family, or household purposes were misled or deceived to believe that they were paying a fair price for lawn mowers; (f) natural persons who indirectly purchased lawn

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mowers primarily for personal, family, and/or household purposes have been injured because they paid more for lawn mowers than they would have paid absent Defendants unlawful and unscrupulous trade practices and acts; (g) Defendants knew, or should have known, that their unscrupulous and unlawful trade practices with respect to pricing lawn mowers would have an effect on Rhode Island natural persons who indirectly purchased lawn mowers primarily for personal, family, or household purposes, and not solely on Defendants direct customers; (h) Defendants knew, or should have known, that their violations with respect to the horsepower labeling of lawn mowers would have a broad effect, causing Rhode Island natural persons who indirectly purchased lawn mowers primarily for personal, family, or household purposes to be injured by paying more for lawn mowers than they would have paid absent Defendants unlawful trade practices and acts; and (i) Defendants violations described above adversely affected public policy in Rhode Island. 190. Indirect Purchaser Class members in the states listed above paid supra-

competitive, artificially inflated prices for lawn mowers. As a direct and proximate result of Defendants unlawful conduct, Plaintiff and the members of the Indirect Purchaser Class have been injured in their business and property in that they paid more for lawn mowers than they otherwise would have paid absent Defendants unlawful conduct. 191. As a result of Defendants violations of the laws listed above, Plaintiff and

Indirect Purchaser Class members in the states listed above are entitled to equitable relief, including restitution and/or disgorgement of all revenues, earnings, profits, compensation and benefits that may have been obtained by Defendants as a result of such business practices, including compensable and such other damages in all States allowed by law.

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192.

Additionally, Plaintiff and the Indirect Purchaser Class seek actual damages for

their injuries caused by these violations in an amount to be determined at trial. Defendants willful and unlawful conduct allows Plaintiff and the Indirect Purchaser Class to recover attorneys fees in the states where they are allowed by law. Therefore, Plaintiff and the Indirect Purchaser Class seek attorneys fees where they are allowed by law. COUNT 7 CIVIL CONSPIRACY (On behalf of Plaintiff and the New Mexico Class) 193. 194. Plaintiff realleges and incorporates all prior paragraphs of this Complaint. Plaintiff, on behalf of himself and the New Mexico Class, brings a civil

conspiracy claim. 195. Defendants know that other Defendants lawn mower engines do not produce the

horsepower represented by such other Defendants. Such knowledge derives, in part, from Defendants testing of other Defendants engines and from communications, meetings and conferences between and among Defendants as set forth in this Complaint. Defendants are aware that the other Defendants misrepresent and overstate the horsepower of their lawn mowers and lawn mower engines and that other Defendants conceal, suppress and fail to disclose to the public the true, lower horsepower of their products. 196. Despite knowing of the other Defendants horsepower misrepresentations and

omissions, Defendants agreed among and between themselves and conspired to conceal and suppress truthful information about the actual, lower-than-represented horsepower of other Defendants lawn mowers and lawn mower engines, and to conceal and suppress truthful information that would expose other Defendants misrepresentations, overstatements and omissions relating to the horsepower of other Defendants lawn mowers and lawn mower

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engines, while concealing and suppressing truthful information about the actual, lower-thanrepresented horsepower of Defendants own lawn mowers and lawn mower engines. 197. In furtherance of the conspiracy, Defendants actively concealed and suppressed

truthful information concerning the actual horsepower of other Defendants lawn mowers and lawn mower engines and concealed and suppressed truthful information that would expose other Defendants misrepresentations, overstatements and omissions relating to the horsepower of other Defendants lawn mowers and lawn mower engines, while continuing to misrepresent, significantly overstate and conceal and suppress information concerning the actual, lower horsepower of Defendants own lawn mowers and lawn mower engines. Defendants acted for the common purpose and design of avoiding detection, earning revenue from advertising and selling products that were not as represented to the public, and concealing their unlawful conduct from Plaintiff and the public. 198. As set forth in this Complaint, Defendants committed wrongful and unlawful acts

or practices in furtherance of the conspiracy, including: a. Concealing and suppressing truthful information about the actual, lower-

than-represented horsepower of other Defendants lawn mowers and lawn mower engines and concealing and suppressing truthful information that would expose other Defendants misrepresentations, overstatements and omissions relating to the horsepower of other Defendants lawn mowers and lawn mower engines, while continuing to misrepresent, overstate and conceal and suppress information concerning the true, lower-than-represented horsepower of Defendants own lawn mowers and lawn mower engines; b. Reporting by Defendants Briggs & Stratton, Kawasaki, Tecumseh, Toro,

Kohler, and Platinum (doing business as Tecumseh Power Company) of horsepower ratings to

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the EPA and CARB that are significantly lower than the inflated, false, misleading and deceptive horsepower representations Defendants make in advertising, marketing and selling Defendants lawn mower engines; c. Suppressing and concealing, by Defendants Briggs & Stratton, Kawasaki,

Tecumseh, Toro, Kohler, and Platinum (doing business as Tecumseh Power Company), both the lower horsepower ratings they report to the EPA and CARB and the fact that they report horsepower ratings to the EPA and CARB that are lower than the horsepower ratings represented by Defendants in advertising, marketing and selling their lawn mower engines; d. Amending, causing to be amended, or adversely influencing the

amendment of the voluntary industry standard SAE J1940 in order to conceal Defendants past horsepower misrepresentations and omissions and to allow Defendants to continue, and continue to conceal, their horsepower misrepresentations and omissions; e. Concealing and suppressing the fraudulent, deceptive purpose of the

amendments to the SAE standard and creating false or misleading explanations for the adoption or purpose of those amendments; f. Forming the enterprises and engaging in the acts and practices set forth in

this Complaint in violation of the Racketeer Influenced and Corrupt Organizations Act; g. Engaging in the unfair, deceptive, or unconscionable acts and practices

and the false or misleading advertising practices set forth in this Complaint, in violation of New Mexicos statutory consumer laws and common law. 199. Defendants consciously conspired and deliberately pursued a common plan or

design to commit tortious acts, as set forth in this Complaint, subjecting Defendants to joint and several liability.

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200.

Defendants conspired and acted in furtherance of the conspiracy for the common

purpose of perpetuating Defendants fraudulent horsepower inflation scheme in order to maximize profits from the advertising and sale of Defendants lawn mowers and lawn mower engines that were not as represented by Defendants. Defendants horsepower inflation scheme is dependent upon each Defendants concealment and suppression of truthful information concerning other Defendants horsepower misrepresentations and overstatements and the concealment and suppression of the true, lower-than-represented horsepower of other Defendants products, thereby allowing each Defendant to continue to misrepresent, overstate and conceal and suppress truthful information concerning the actual, lower horsepower contained in Defendants own lawn mowers and lawn mower engines. 201. Defendants unlawful conduct set forth in this Complaint was done as part of a

conspiracy to deceive and mislead Plaintiff and members of the public in violation of New Mexicos statutory consumer law and common law. 202. As a proximate result of Defendants conspiracy, and Defendants tortious,

unlawful conduct in furtherance of the conspiracy, Plaintiff and members of the New Mexico Class have been injured and have suffered damages, including paying for products that were not as represented by Defendants, and paying more for such products than Plaintiff and members of the New Mexico Class would have paid in the absence of Defendants conspiracy. 203. Plaintiff and members of the New Mexico Class seek recovery of damages, in an

amount to be determined at trial, caused by Defendants conspiracy and Defendants unlawful acts in furtherance of their conspiracy to defraud Plaintiff and the public. VIII. REQUEST FOR RELIEF WHEREFORE, Plaintiff respectfully requests that the Court award judgment, jointly and

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severally, against Defendants as follows: A. Entering an order certifying this action as a class action, properly brought

by Plaintiff on behalf of the Nationwide Class, the New Mexico Class and the Indirect Purchaser Class, as defined in this Complaint; certifying Plaintiff as representative of the classes; and appointing Plaintiffs counsel as counsel for the classes; B. Declaring that Defendants acts and practices as set forth in this Complaint

constitute multiple, separate violations of RICO, federal and state antitrust laws and New Mexico statutory consumer and common laws; C. Permanently enjoining Defendants from engaging in the unlawful acts and

practices set forth in this Complaint and from further violations of RICO and the New Mexico statutory consumer law and common law; D. Permanently enjoining and restraining each of the Defendants, co-

conspirators, successors, assigns, parents, subsidiaries, affiliates and transferees, and their respective officers, directors, agents and employees, and all other persons acting or claiming to act on behalf of Defendants or in concert with them, from, in any manner, directly or indirectly, continuing, maintaining or renewing the combinations, conspiracy, agreement, understanding or concert of action, or adopting any practice, plan, program or design having a similar purpose or effect in restraining competition. E. Enjoining Defendants from misrepresenting to the consuming public any

power rating regarding their engines or lawn mowers; F. Awarding Plaintiff and the members of the classes actual, compensatory

damages in an amount to be determined at trial;

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G.

Entering judgment in favor of Plaintiff and the Nationwide Class against

Defendants for three times the damages sustained by Plaintiff and the Nationwide Class, plus costs, including reasonable attorneys fees, pursuant to RICO, 18 U.S.C 1962(c) and (d); H. Entering judgment in favor of Plaintiff and the New Mexico Class for

three times the actual damages for violations of New Mexicos Unfair Practices Act; I. Entering judgment in favor of Plaintiff and the Indirect Purchaser Class

for damages for violations of state antitrust laws, including equitable relief, restitution and/or disgorgement of all revenues, earnings, profits, compensation and benefits that may have been obtained by Defendants as a result of such business practices, including compensable and such other damages in all States allowed by law, and costs of suit, including reasonable attorneys fees; J. provided by law; K. Ordering Defendants to disgorge to Plaintiff and the members of the Awarding Plaintiff and members of the classes additional damages as

classes all monies unjustly received through Defendants unlawful conduct; L. by law; M. Awarding Plaintiff and members of the classes pre-judgment and postAwarding restitution to Plaintiff and members of the classes as provided

judgment interest as provided by law; N. provided by law; and O. finds just and proper. Granting Plaintiff and the classes such other and further relief as the Court Awarding Plaintiff and the classes costs and reasonable attorneys fees as

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DEMAND FOR JURY TRIAL Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiff demands a jury trial as to all issues so triable.

Dated: May 7, 2009

s/K. Scott Wagner K. Scott Wagner (SBN 1004668) HALE & WAGNER, S.C. 205 East Wisconsin Avenue, Suite 300 Milwaukee, Wisconsin 53202 Telephone: (414) 278-7000 Facsimile: (414) 278-7590 Email: ksw@halewagner.com

Vincent J. Esades Renae D. Steiner Scott W. Carlson HEINS MILLS & OLSON, P.L.C. 310 Clifton Avenue Minneapolis, Minnesota 55403 Telephone: (612) 338-4605

Brian M. Sund Joshua G. Hauble Jackson D. Bigham MORRISON FENSKE & SUND, P.A. 5125 County Road 101, Suite 102 Minnetonka, Minnesota 55345 Telephone: (952) 975-0050 ATTORNEYS FOR CLASS PLAINTIFFS

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