(concurring in part, dissenting in part).
I concur in the transfer of the actions for coordinated or consolidated pretrial proceedings. However, I dissent with respect to class action motions as follows:
I agree that upon the entry of an order by the Panel pursuant to section 1407 of Title 28, the transferee court has jurisdiction to determine class action motions under Rule 23, absent a pending motion in the transferor court. However, when a motion under Rule 23 already has been argued or submitted to a judge in the transferor court and is undetermined by him at the time of the entry of the transfer order by the Panel under section 1407, such transfer order does not divest the transferor judge of jurisdiction to make his determination of the Rule 23 motion. Notwithstanding, the transferor judge, as a matter of comity, may decline to exercise jurisdiction and defer to the transferee court.
SCHEDULE B*
Northern District of California
1. The City of Los Angeles and Department of Water and Power of the City of Los Angeles v. American Radiator & Standard Sanitary Corporation, et al. Civil Action No. 49866
2. State of Hawaii v. American Radiator & Standard Sanitary Corporation, et al. Civil Action No. 49541
Eastern District of Virginia
3. Edward S. Petros v. American Radiator & Standard Sanitary Corporation, et al. Civil Action No. 4887-A
4. Vincent A. Mangano and M & M Builders, Inc. v. American Radiator & Standard Sanitary Corporation, et al. Civil Action No. 4888-A
5. Vincent A. Mangano v. American Radiator & Standard Sanitary Corporation, et al. Civil Action No. 4889-A
Southern District of New York
6. The City of New York, et al, v. American Radiator & Standard Sanitary Corporation, et al. Civil Action No. 68-3149
*498Eastern District ¡of Wisconsin
7. State of- Wisconsin v. Plumbing Fixture Manufacturers Association, et al. Civil Action No. 68-C-230
District of Kansas
8. The State of Kansas, ex rel. Robert C. Londerholm, Civil Action Attorney General No. T-4481 v. American Standard, Inc., et al.
District of Columbia
9. Blake Construction Co., Inc. v. American Standard, Inc., et al. Civil Action No. 2104-68
APPENDIX
PART I
From Report of the Co-Ordinating Committee on Multiple Litigation Recommending New Section 1407, Title 28
Comment on Proposed § 1407. MultiDistrict Litigation
As directed by the March 1964 resolution of the Judicial Conference of the United States, the Co-Ordinating Committee for Multiple Litigation (a subcommittee of the Committee on PreTrial Procedure and Practice) has examined the need for legislation and rules to treat the special problems presented by multi-district litigation. During the past year the Committee has analyzed its experience in the electrical equipment litigation, consulted with the judges and lawyers who participated in the ad hoc coordination program for those cases, and appraised numerous proposals designed to expedite proceedings when related civil actions are pending in more than one district. Proposed § 1407 is recommended as an important step in improving judicial administration for this class of cases.
The Co-Ordinating Committee considered whether the necessary procedural changes could be accomplished under existing rule-making authority. Study led to the conclusion that venue, historically a matter of legislative concern, would be affected by any appropriate solution of the problems. An earlier draft of a similar proposed statute would have provided the necessary statutory authority but would have required substantial implementation by the panel under specifically delegated flexible rule-making authority. After considering the comments received on an earlier draft, the Committee has concluded that its objectives can be achieved by the more limited and specific statute now proposed which authorizes only implementing rules not inconsistent with any Act of Congress or the Federal Rules of Civil Procedure.
Two techniques, court control of pretrial proceedings and centralization of such proceedings, are basic to the proposal. By authorizing unified treatment for multi-district actions involving one or more common questions of fact, the statute would create the possibility of applying to these cases ordered pre-trial procedures like those generally recom*499mended for protracted cases pending in a single district. See, Handbook of Recommended Procedures for the Trial of Protracted Cases, 25 F.R.D. 351 (adopted by the Judicial Conference of the United States — March 1960). Centralization of pre-trial proceedings is sought in order to minimize the additional litigation costs which are engendered in multi-district litigation through overlapping and conflicting discovery, such as repetitive depositions and document production and minor variances in written interrogatories which may impose undue burdens on the answering parties.
Scope of the Statute.
The statute affects only the pre-trial stages in multi-district litigation. It would not affect the place of trial in any case or exclude transfer under other statutes (e. g., Title 28, U.S.C. §§ 1404 (a) and 1406(a)) prior to or at the conclusion of pre-trial proceedings.
The civil actions which would be affected by the statute must meet several general requirements. First, they must involve one or more common questions of fact. Second, they must be pending in more than one district. Although present procedures permit coordinated or consolidated treatment of related cases brought in or transferable to a single district, these procedures do not provide for such treatment where the cases must remain pending in several districts. The proposed statute would not affect existing methods of coordinated or consolidated treatment of cases pending in a single district. Third, the circumstances must be such that coordinated or consolidated pre-trial proceedings would promote the just and efficient conduct of such actions. This final requirement limits the applicability of the proposed statute to litigation in which significant economy and efficiency in judicial administration may be obtained.
Limited Transfer.
The major innovation proposed is transfer solely for pre-trial purposes. The statute’s objectives of eliminating conflict and duplication and of assuring efficient and economical pre-trial proceedings would thus be achieved without losing the benefits of local trials in the appropriate districts. An advantage of this statute in multi-district litigation over alternative techniques, such as the class action, is that each action remains as an individual suit with the litigants retaining control over their separate interests. The Advisory Committee’s Note to Proposed Rule 23 (F.R.Civ.P.) comments that, “Even when a number of separate actions are proceeding simultaneously, experience shows that the burdens on the parties and the courts can sometimes be reduced by arrangements for avoiding repetitious discovery or the like.” Preliminary Draft of Proposed Amendments to Rules of Civil Procedure for the United States District Courts 118 (U.S. Government Printing Office, 1964). Proposed § 1407 would maximize the litigant’s traditional privileges of selecting where, when and how to enforce his substantive rights or assert his defenses while minimizing possible undue complexity from multi-party jury trials.
Under proposed § 1407 the transferee district court would have the usual powers provided by the Federal Rules of Civil Procedure, including authority to render summary judgment, to control and limit pre-trial proceedings, and to impose sanctions for failure to make discovery or comply with pre-trial orders. The deposition judges would have powers over the deponents and the actions as judges of the districts in which the depositions are taken.
Transfer to the most desirable forum is provided by permitting pre-trial transfer “to any district.” Present transfer provisions for civil actions, which are not limited to pre-trial pro*500ceedings, restrict the transferee districts available. For example, Title 28, U.S.C. § 1404(a) limits the change “to any other district or division where it [the civil action] might have been brought.” Similarly, Title 28, U.S.C. § 1406(a) restricts transfer “to any district or division in which it [a case] could have been brought.” Analogous problems are presented when multiple bankruptcy petitions are filed by or against the same bankrupt. Section 32 of the Bankruptcy Act, Title 11, U.S.C. § 55, permits transfer and consolidation “in the court which can proceed with the same for the greatest convenience of parties in interest.”
Benefits from consolidated pretrial procedures for related cases have been recognized as grounds for transfer under Title 28, U.S.C. § 1404(a). In Popkin v. Eastern Air Lines, Inc., et al., 204 F.Supp. 426, 431 (E.D.Pa.); mandamus granted sub nom., Barrack, Administratrix, et al., v. Van Dusen U. S. District Judge, et al., 309 F.2d 953 (1962), rev’d. and remanded, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964), the district court granted defendants’ § 1404(a) motions to transfer 55 personal injury and wrongful death actions to another district where 114 cases which arose from the same crash were pending, stating that:
“The interest of justice requires the transfer of these cases to the transferee District for these reasons, among others: (1) Consolidation of all the cases arising from this accident for purposes of proceedings before trial is likely to procure fairer and more orderly trials for all litigants and save needless time and expense for the public, including jurors, and other litigants whose cases are awaiting trial.” (Emphasis supplied.)
Judicial Panel on Multi-District Litigation.
The statute provides for the designation of a judicial panel on multi-district litigation empowered to: (1) initiate transfer proceedings; (2) transfer civil actions for coordinated or consolidated pre-trial proceedings with the consent of the district courts from which the actions are transferred; (3) assign a judge or judges to conduct such proceedings and request the Chief Justice to make inter-circuit assignments for this purpose; (4) act as and designate other judges as deposition judges in any district; and (5) remand transferred actions to the districts from which they were transferred at or before the conclusion of pre-trial proceedings. The Chief Justice is granted authority to designate the panel’s membership which shall consist of seven circuit and district judges.
When allocating multi-district litigation among the districts or assigning a judge or judges to conduct pre-trial proceedings, the panel would be functioning primarily in an administrative capacity. Analogous procedures for dividing the judicial business of a single district are found in certain districts where this function is performed by an executive committee of the district judges. For example, General Rule 10(c), Rules of the United States District Court for the Northern District of Illinois, provides:
“(c) Executive Committee: The assignment of cases to calendars and judges * * * shall be done under the general direction of an Executive Committee consisting of three judges of this court * *
The Committee’s experience in organizing the deposition program for the electrical equipment antitrust litigation indicates that swifter and more flexible procedures for inter-circuit assignment of judges to conduct depositions are desirable. At some stages a program may not require judges or may require several deposition judges. At other times prompt attention from a larger group of judges may be useful. Frequent changes of the judicial personnel assigned to this task may also be *501advantageous. To permit rapid changes in the assignment of judicial personnel, the statute authorizes the panel and the judges to whom the cases are assigned to “exercise the powers of a district judge in any district for the purpose of conducting pretrial depositions in such coordinated or consolidated pretrial proceedings.” In addition, the panel is empowered to delegate this responsibility to other judges “when needed.”
In accordance with the national character of the litigation with which the panel will be concerned, its membership will be drawn from seven judicial circuits. The members will be designated by the Chief Justice who presently has analogous functions in connection with inter-circuit assignments and in his capacity as presiding officer of the Judicial Conference of the United States. Title 28, U.S.C. §§ 291-295, 331.
Transfer would be effected by entry of the panel’s order and the filing of the required consent of the district courts from which the actions are transferred in the office of the clerk of the transferee district court. This procedure is modeled on present techniques for effecting removal from state courts. Title 28, U.S.C. § 1446(e).
By providing for entry of the panel’s transfer orders in the transferee district it is intended to insure that appellate review, when available, will take place in one Court of Appeals. The proposed section does not attempt to alter or clarify present doctrines as to the availability or scope of review of transfer orders. Transfer orders under §§ 1404 (a) and 1406(a) may be reviewable solely by mandamus. See, Philip Carey Mfg. Co., et al. v. Taylor, 286 F.2d 782 (C.A. 6, 1961), cert. den., 366 U.S. 948, 81 S.Ct. 1903, 6 L.Ed.2d 1242 (1961) (§ 1404(a) proceeding); Bankers Life & Casualty Co. v. Holland, Chief Judge, et al., 346 U.S. 379, 74 S.Ct. 145, 98 L.Ed. 106 (1953) (§ 1406(a) proceeding). On the other hand, it has been argued that such orders are appropriate for direct review under the doctrine of Cohen, Executrix, et al., v. Beneficial Industrial Loan Corp., et al., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1948). Note, Appealability of 1404(a) Orders: Mandamus Misapplied, 67 Yale L.J. 122 (1957). Orders of the district court remanding cases improperly removed from state courts are not reviewable. Title 28, U.S.C. § 1447(d).
The Electrical Equipment Antitrust Cases.
The national coordination program for the electrical equipment antitrust cases utilized many novel procedures to simplify and expedite that complex multi-district litigation. The broader and less expensive discovery that resulted from the planned program of eliminating repetitive examinations of deponents and production of documents was possible because of the cooperation of bench and bar under emergency conditions. For a more complete description of that program, see, Neal and Goldberg, The Electrical Equipment Antitrust Cases: Novel Judicial Administration, 50 A.B. A.J. 621 (1964). The devices which were effective in the national program, such as central management of pre-trial proceedings in related cases, and the reduction of deposition delays by assigning a judge to be available for prompt rulings throughout a deposition, commend themselves for use in future multidistrict litigation. Proposed § 1407 would enhance the possibility that these and other effective economic procedures will be applied in the future to multidistrict litigation.
Submission.
Your Sub-Committee to study problems of multiple litigation submits this report to supplement the previous reports and respectfully recommends *502favorable consideration of proposed § 1407 at the forthcoming meeting of the Judicial Conference of the United States.
Chief Circuit Judge Alfred P. Murrah, Chairman.
Chief Judge Sylvester J. Ryan
Chief Judge Thomas J. Clary
Chief Judge Roszel C. Thomsen
Chief Judge Joe E. Estes
Judge George H. Boldt
Judge William M. Byrne
Judge William H. Becker
Judge Edwin A. Robson
March 2, 1965
Part II
Congressman Celler requested the views of the Department of Justice. The Department, in a letter dated January 7, 1966, and signed by Deputy Attorney General Ramsey Clark, favored the enactment of the bill with two amendments, (1) excluding government prosecutions under the antitrust laws from the scope of the bill, and (2). deletion of the provisions of the original bill requiring consent of the district court from which the action is transferred before the transfer is made. This letter reads as follows:
“This is in response to your request for the views of the Department of Justice concerning H.R. 8276, a bill ‘To provide for the temporary transfer to a single district for coordinated or consolidated pretrial proceedings of civil actions pending in different districts which involve one or more common questions of fact, and for other purposes.’
“The bill would add a new section 1407 to title 28, United States Code, which would permit the transfer to a single district for coordinated or consolidated pretrial proceedings of civil actions pending in different districts which involve one or more common questions of fact. Such transfer shall be made by a judicial panel on multidistrict litigation, consisting of seven circuit and district judges appointed by the Chief Justice of the United States, upon determination by the panel that the transfer will promote justice and efficient conduct of such suits. The transfer requires the consent of the court in which the suit is pending, and each action so transferred shall be remanded by the panel at or before the conclusion of the pretrial proceedings to the district from which it was transferred. The panel may separate any claim, cross claim, counterclaim, or third party claim and remand any of such claims before the remainder of the action is remanded.
“The coordinated or consolidated pretrial proceedings shall be conducted by a judge or judges assigned by the judicial panel. The panel may request, for this purpose, the temporary assignment of a circuit or district judge to the transferee district by the Chief Justice of the United States or the chief judge of the circuit. Proceedings for the transfer of an action may be initiated by the judicial panel by notice to the parties in all of the actions concerned of the manner, time and place of the hearing to determine whether the transfer shall be made. The concurrence of four members of the panel shall be necessary to any action of the panel. When actions have been transferred by order of the panel, no district court refusing to consent to the transfer of related litigation may make any order for or *503permit discovery in conflict with the discovery proceedings in the transferred actions.
“At present, there is no specific provision governing the conduct of discovery and pretrial proceedings on a consolidated basis. The massive national discovery program, which was established in response to the unprecedented number of electrical equipment treble damage actions, was instituted under the authority of Supreme Court rule-making power, which in turn resulted in a delegation of authority to a coordinating committee of judges for the purpose of working out an appropriate procedure for handling common discovery problems. The bill is an outgrowth of the experience gained under this national discovery program, and is an apparent attempt to codify some of the steps taken thereunder. [For a general discussion of the Program, see Neal and Goldberg, The Electrical Equipment Antitrust Cases: Novel Judicial Administration, 50 A.B.A.J. 621 (1964).]
“This legislation was recommended by the Judicial Conference of the United States. The Department of Justice favors its enactment but suggests that it be amended in two respects.
“We believe that Government prosecutions under the antitrust laws should be excluded from the scope of the measure. If the bill applied to such antitrust actions, it is anticipated that numerous private plaintiffs would file treble damage suits immediately following the filing of a Government suit. In consequence, Government suits filed by this Department would almost certainly be substantially delayed, often to the disadvantage of injured competitors who are awaiting the outcome of the Government suit upon which to predicate their damage actions. Furthermore there is no need for participation of injured competitors at this stage since section 5(b) of the Clayton Act (15 U.S.C. 16 (b)) tolls the running of the statute of limitations on their damage suits while the Government litigation is proceeding. Private plaintiffs may use discovery to uncover information relating only to damages or information that we have already obtained through the use of grand juries, civil investigative demands or informal interviews. Moreover, if we wish to avoid such delay, we may be forced to share with private plaintiffs information already in our possession that we prefer to keep confidential and to relinquish the control of a consolidated discovery proceeding to a private plaintiff’s attorney. While exempting the Government from this legislation may occasionally burden defendants because they may have to answer similar questions posed both by the Government and by private parties, this is justified by the importance to the public of securing relief in antitrust cases as quickly as possible. To treat the Government differently is not arbitrary, for the purpose of the governmental suit normally differs from that of a private suit: the Government seeks to protect the public from competitive injury, while private parties are primarily interested in recovering damages for injuries already suffered. We therefore recommend that the Government’s civil antitrust suits be exempted from this legislation. On the other hand, the Government’s damage suits should be included, for the Government’s purpose in bringing such a suit is the same as that of a private party. Accordingly, it is suggested that a new subsection (g) be added to section 1 of the bill to read as follows:
“(g) Nothing in this section shall apply to any action in which the United States is a complainant arising under the antitrust laws. ‘Antitrust laws’ as used herein include those acts referred to in the Act of October 15,1914, as amended, (38 Stat. 730; 15 U.S.C. 12), and *504also include the Act of June 19, 1936 (49 Stat. 1526; 15 U.S.C. 13, 13a and 13b) and the Act of September 26, 1914, as added March 21, 1938 (52 Stat. 116, 117, 15 U.S.C. 56); but shall not include section 4A of the Act of October 15, 1914, as added July 7, 1955 (69 Stat. 282; 15 U.S.C. 15a).
“Also, we believe that the provision of the bill which requires the consent of the district court from which an action is transferred should be deleted. To require such consent seems superfluous since seven circuit and district judges must consider the proposed transfer and four members of the panel approve it before it can take place. Requiring the consent of the transferor district judge would give a veto power and in essence require voluntary cooperation of all in order to consolidate discovery proceedings.
“The Bureau of the Budget has advised that there is no objection to the submission of this report from the standpoint of the Administration’s program.”
(Lettered “B” because of Schedule A listing cases originally transferred. 295 F.Supp. 33)