In re Multidistrict Civil Antitrust Litigation Involving PHOTOCOPY PAPER.
No. 28.Judicial Panel on Multidistrict Litigation.
October 27, 1969.*61 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.
OPINION AND ORDER
PER CURIAM.
On August 15, 1969, the Panel ordered the parties in the actions listed on the attached Schedule A to show cause why these actions should not be transferred for coordinated or consolidated pretrial proceedings under 28 U.S.C. § 1407 to a district or districts other than those in which they were then pending.[1] All parties filed responses to the show cause order and, with a single exception[2], all vigorously opposed transfer of any of these actions at the present time. After reviewing these responses and considering the arguments presented at the hearing held in Washington, D. C. on September 26, 1969, we have decided not to transfer any of these actions at this time.
The existence of common questions of fact among civil actions pending in different districts is the "initial criteria" which must be satisfied before any such actions may be transferred under section 1407. In re Air Crash Disaster at Greater Cincinnati Airport, 298 F. Supp. 353 (Jud.Pan. Mult.Lit.1968). There is in this litigation, a very basic and substantial question of fact common to all actions: can the defendant's policy of recommending that only SCM photocopy paper and supplies be used with SCM photocopy machines be justified for technical reasons[3] or is it an attempt to create an illegal tying arrangement.[4] The nature, scope, purpose, and implementation of this corporate policy appear relevant to all of the actions in this multidistrict litigation and this factor satisfies the requirement that common questions of fact exist.
Of course, transfer for coordinated or consolidated pretrial proceedings is not mandated by a finding that common questions of fact permeate the actions. See, for example, In re Scotch Whiskey, 299 F. Supp. 543 (Jud.Pan. Mult.Lit.1969) and In re Air Crash Disaster at Falls City, Nebraska, 298 F. Supp. 1323 (Jud.Pan.Mult.Lit.1969). A transfer will not be ordered unless the convenience of parties and witnesses is served and the just and efficient conduct of the actions promoted by such a transfer. In opposing the proposed transfer, the parties assert that neither they nor their witnesses would be convenienced by a transfer since a large and perhaps the greatest portion of the discovery will involve local markets, local practices, and local witnesses. It may be true that transfer for coordinated or consolidated pretrial proceedings as to local issues might not serve the convenience of the parties and their witnesses but it seems clear that such transfer for coordinated or consolidated pretrial proceedings relating to the common questions of fact *62 would indeed serve the convenience of the parties and their witnesses.[5]
As discovery has been completed in the Virginia Impression Products Company case and trial is scheduled to begin shortly, this action would certainly be excluded from any consolidated or coordinated pretrial proceedings. cf. In re Protection Devices and Equipment, etc., 295 F. Supp. 39 (Jud.Pan.Mult.Lit. 1968). Discovery in several other actions has also progressed to a point that their transfer under section 1407 would be inappropriate and the few remaining actions do not fall into that category of exceptional cases sharing unusually complex questions of fact. Compare In re IBM Litigation, 302 F. Supp. 796 (Jud. Pan.Mult.Lit.1969) with In re Scotch Whiskey, supra. The number of transferable actions, their location, their lack of complexity, their relative size, and, most significantly, the fact that discovery is proceeding with a minimum expenditure of judicial energies combine to make the immediate transfer of any of these actions inconsistent with the goal of promoting the just and efficient conduct of these actions.
In sum, we have concluded that the predicate common questions of fact exist and that the convenience of the parties and their witnesses would generally be served by transfer but that the just and efficient conduct of the presently pending actions would not be promoted by transfer at this time.
At oral argument, General Counsel for the SCM recognized the possibility that additional actions might be commenced following the recent Fourth Circuit decision and he wanted to reserve the right to invoke the power of the Panel if subsequent developments make coordinated or consolidated pretrial proceedings more appropriate. We shall therefore retain jurisdiction of this matter for six months. Counsel for SCM is directed to file a report with the Clerk of the Panel no later than May 1, 1970 showing the status or disposition of the actions now pending and any related actions commenced in the interim.
SCHEDULE A
Northern District of California
Roy Davenport d/b/a Vallejo Typewriter Co. v. SCM Civil Action
Corporation No. 49570
Lloyd Cowan d/b/a Lloyd's Business Machines v. Civil Action
SCM Corporation No. 45633
District of Massachusetts
Bloom's Photo Supply, Inc., et al. v. SCM Corporation Civil Action
No. 68-975-J
Automatic Business Systems Corporation v. SCM Civil Action
Corporation No. 69-147-W
District of Arizona
Avery Powers d/b/a Standard Office System of Arizona Civil Action
v. SCM Corporation No. 6890-PHX
Eastern District of Virginia
Virginia Impression Products Co. v. SCM Corporation Civil Action
No. 5677-R
NOTES
[*] Although Judges Murrah, Lord and Weigel were unable to attend the hearing on September 26, 1969, they have, with the consent of all parties, participated in this decision.
[*] Another related action filed in the District of Utah, Advance Business Equipment Co. v. SCM Corp., was dismissed a few days before the show cause order was entered.
[*] The plaintiff in the Arizona action does not oppose transfer of this case for coordinated or consolidated pretrial proceedings.
[1] General Counsel for SCM asserts that such a recommendation is made to insure quality reproductions and reliable performance of SCM photocopy equipment.
[2] In Advance Business Systems and Supply Co. v. SCM Corp., 415 F.2d 55 (August 18, 1969) the Fourth Circuit affirmed the trial court's finding that SCM had failed to establish any legitimate reason for the tying clauses since SCM officials knew that the competing product (Nashua Paper) was "safe and as effective as SCM paper" for use with SCM photocopy machines.
[3] While local discovery can be conducted during coordinated or consolidated pretrial proceedings, it need not be, and the actions may be remanded to the original transferor courts for such local discovery. In re "East of the Rockies" Concrete Pipe Antitrust Cases, 302 F. Supp. 244 (Concurring Opinion) (Jud. Pan.Mult.Lit. 1969).