Opinion
No. 159.
June 10, 1974.
Before ALFRED P. MURRAH, Chairman, and JOHN MINOR WISDOM, EDWARD WEINFELD, EDWIN A. ROBSON, WILLIAM H. BECKER, JOSEPH S. LORD, III, and STANLEY A. WEIGEL, Judges of the Panel.
Although Judge Murrah was not present at the hearing, he has, with the consent of all parties, participated in this decision.
OPINION AND ORDER
This litigation involves an alleged conspiracy within the plywood industry to fix the price of softwood plywood. Plaintiffs in each of the eight actions before the Panel are purchasers of softwood plywood and they charge the defendant plywood producers with violations of federal antitrust laws. All the actions contain Rule 23 allegations purporting to represent large classes of direct and indirect purchasers of softwood plywood. Several defendant producers move the Panel for an order transferring all the actions to the Eastern District of Louisiana for coordinated or consolidated pretrial proceedings pursuant to 28 U.S.C. § 1407. The only opposition to the motion comes from plaintiffs in the actions pending in districts other than the Eastern District of Louisiana. On the basis of the briefs submitted and the hearing held, we find that these actions involve common questions of fact and that transfer of these actions to the Eastern District of Louisiana will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation.
The plaintiffs opposing transfer contend that the allegations in the Louisiana actions are much broader than those contained in their actions because only Louisiana plaintiffs allege violations of the Robinson-Patman Act in addition to violations of Section 1 of the Sherman Act, which permeate all of the actions. And they argue that in order to demonstrate Robinson-Patman Act violations, the Louisiana plaintiffs necessarily named a multitude of local defendants and, as a result, will be seeking discovery which is largely irrelevant to the other actions in this litigation.
The opponents to transfer also contend that because of the Robinson-Patman claims, complicated issues relating to plaintiffs' Rule 23 class allegations are involved in the Louisiana actions but do not exist in any of the other actions. Consequently, they see no reason for transferring their actions to Louisiana where they will become embroiled in class action matters in which they have little or no interest.
These arguments are not sufficient. All the actions contain allegations of violations of Section 1 of the Sherman Act stemming from alleged "phantom freight" charges for softwood plywood produced in the South which supposedly raised prices artificially to the level charged for plywood produced in the Pacific Northwest. And although plaintiffs' overall legal stratagems differ somewhat, they all rest on a common nexus of facts. Thus, transfer of the actions to a single district will prevent the possibility of duplicative discovery concerning defendants' alleged misconduct. And our decision in no way limits or impedes Louisiana plaintiffs' desire to pursue their Robinson-Patman Act claims or threatens to protract the litigation involving alleged violations of Section 1 of the Sherman Act. It, of course, is the responsibility of the transferee judge to determine whether and to what extent the pretrial proceedings involving the Robinson-Patman and Sherman Act claims should be coordinated or consolidated. See, e.g., In re Equity Funding Corporation of America Securities Litigation, 375 F. Supp. 1378, 1384 (Jud.Pan.Mult.Lit., filed February 1, 1974).
Furthermore, the class allegations in those actions are clearly overlapping. A Section 1407 transfer of all actions in this litigation to a single district and assignment of those actions to one judge will eliminate any possibility of inconsistent class determinations by the various district courts involved and assure the swift resolution of the difficult Rule 23 issues adverted to by the parties opposing transfer. See Manual for Complex Litigation, Part I, Section 5.40 (rev. ed. 1973). See also In re Plumbing Fixture Cases, 298 F. Supp. 484, 493 (Jud.Pan.Mult.Lit. 1968).
The Eastern District of Louisiana is the most appropriate transferee district for this litigation. The majority of the parties favor that district and it appears that many of the potential witnesses and documents relevant to the issues raised are located in the South. Moreover, discovery in the Louisiana actions has already commenced before the Honorable Lansing L. Mitchell and he is totally familiar with all of the issues involved in this litigation.
It is therefore ordered that all actions listed on the attached Schedule A pending in districts other than the Eastern District of Louisiana be, and the same hereby are, transferred to the Eastern District of Louisiana and, with the consent of that court, assigned to the Honorable Lansing L. Mitchell for coordinated or consolidated pretrial proceedings pursuant to 28 U.S.C. § 1407 with the actions pending in that district and listed on Schedule A.
SCHEDULE A
Eastern District of Arkansas
C M Construction Co. v. Boise Civil Action Cascade, et al. No. 74-C-32
Eastern District of New York
Park Lane Associates, et al. v. Civil Action Boise Cascade Corp., et al. No. 73 C 1717
Eastern District of Pennsylvania
John J. O'Shea, Trustee in Bank- Civil Action ruptcy of Diamond Lumber Co., No. 73-2141 Inc., etc. v. Boise Cascade Corp., et al.
Eastern District of Louisiana
Robert Schubel, et al. v. Georgia Civil Action Pacific Corp., et al. No, 73-3345 (Section A)
Gabriel Building Supply Co., Inc. Civil Action v. Agnew Plywood, et al. No. 72-522
West Deer Park Associates, et al. Civil Action v. Georgia Pacific Corp., et al. No. 73-2671
Altman Bros., Inc. of Massachusetts, Civil Action et al. v. Georgia Pacific No. 73-2860 Corp. (Section H)
James I. Barnes Construction Civil Action Co., et al. v. Georgia Pacific No. 73-2861 Corp., et al. (Section C)