OPINION AND ORDER
Before JOHN MINOR WISDOM, Chairman, and EDWARD WEINFELD, EDWIN A. ROBSON, JOSEPH S. LORD, III, STANLEY A. WEIGEL, ANDREW A. CAFFREY, and ROY W. HARPER, Judges of the Panel.
PER CURIAM.
On January 17, 1977, the Panel issued an opinion and order that maintained bifurcated pretrial proceedings in this litigation: MDL-201 before the Honorable George H. Boldt in the Northern District of California and MDL-201A before the Honorable Edward N. Cahn in the Eastern District of Pennsylvania.
In re Sugar Industry Antitrust
Litigation, 427 F.Supp. 1018, (Jud.Pan.Mult.Lit.1977). The complaints in both MDL-201 and MDL-201A followed the Government’s complaints in two criminal actions and three injunctive actions filed in the Northern District of California in late 1974, and basically allege that various defendants and co-conspirators combined from as early as 1949 until the mid-1970’s in violation of Section 1 of the Sherman Act to fix, raise, maintain and stabilize the price of refined cane and/or beet sugar on a regional basis.
On March 30, 1977, a federal grand jury in the Eastern District of New York indicted four companies on charges that they conspired in violation of Section 1 of the Sherman Act to fix the price of cane sugar sold for industrial purposes. According to the indictment, the alleged price-fixing began in August 1972, shortly after Amstar Corporation announced a new pricing policy that eliminated discounts and provided that all sales of refined industrial sugar were to be made at list prices. The indictment alleges that the four defendants — SuCrest Corp.; PepsiCo, Inc.; RSN Projects, Inc.; and CPC International, Inc.
— discussed Amstar’s policy with each other and agreed to initiate similar policies in a fifteen state area in the Northeast. This unlawful conduct continued until September 1973, the indictment alleges. On May 19, 1977, the four defendants pleaded no contest to these charges.
Shortly after the Eastern District of New York grand jury handed down its indictment,
City Club
and
Crown Beverage
were commenced in the Eastern District of New York against the four defendants named in that indictment. The complaints in
City Club
and
Crown Beverage
track the allegations of the New York indictment. Both actions are brought on behalf of a class of all purchasers of industrial cane sugar from SuCrest, PepsiCo, RSN and CPC in the fifteen states covered by the recent indictment.
Connecticut
was filed by the State of Connecticut as a class action on behalf of the state and its political subdivisions. Fourteen defendants, including SuCrest, RSN, CPC and PepsiCo, are named in this action. The complaint alleges that these fourteen defendants and various co-conspirators combined in violation of Section 1 of the Sherman Act to fix and raise the price of all forms of refined cane and/or beet sugar in the states covered by the New York indictment. The allegations of the complaint cover a time period commencing sometime prior to 1970 and continuing to at least December 1974.
Because
City Club, Crown Beverage
and
Connecticut
appeared to share questions of fact with the actions in MDL-201A, the Panel issued orders conditionally transferring these three actions to the Eastern District of Pennsylvania for inclusion in MDL-201A.
PepsiCo and plaintiffs in
Crown Beverage
and
City Club
have moved to vacate the conditional transfer orders. All responding parties favor the inclusion of
Connecticut, City Club
and
Crown Beverage
in MDL-201A. We find that these three actions raise questions of fact common to the previously transferred actions and that their transfer to the Eastern District of Pennsylvania pursuant to Section 1407 will best serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation.
All movants argue that the disparage conspiracy issues, time periods, geographic markets, products and damages issues involved in
Crown Beverage
and
City Club
as compared to the actions in MDL-201A do not give rise to significant common questions of fact.
Plaintiffs in
Grov/n Beverage
and
City. Club
also contend that inclusion of those two actions in MDL-201A would unduly delay their progress and would not serve the convenience of the parties and witnesses. Discovery in
Crown Beverage
and
City Club
will be much less extensive than that in MDL-201A, and will be conducted almost exclusively in the Eastern District of New York, these plaintiffs assert. They argue that all relevant grand jury documents are located in that district, and that since all parties in
Crown Beverage
and
City Club
have their headquarters in the New York metropolitan area, their documents and many potential witnesses are located there. Finally, these plaintiffs maintain that they will make every effort voluntarily to coordinate their discovery efforts with those of the parties in MDL-201A in the limited areas in which discovery in
Crown Beverage
and
City Club
may overlap with discovery in MDL-201A.
PepsiCo argues that the orders conditionally transferring
Connecticut, Crown Beverage
and
City Club
to MDL-201A should be vacated because coordinated or consolidated pretrial proceedings involving these three recently filed actions, in which PepsiCo is a defendant, and the actions in MDL-201A,
in which PepsiCo is a member of the plaintiff industrial user class, would not promote the just and efficient conduct of this litigation.
In defining the industrial user class in MDL-201A, PepsiCo states, Judge Cahn excluded all defendants in any action included in MDL-201A.
See In re Sugar Industry Antitrust Litigation,
73 F.R.D. 322, 359 (E.D.Pa.1976). PepsiCo contends that while the plaintiffs in the three recently filed actions have the right to sue Pepsi-Co, if at this late date those actions are included in MDL-201A, the provision excluding defendants from the industrial user class may serve to deprive PepsiCo of its rights as a member of the plaintiffs’ class.
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OPINION AND ORDER
Before JOHN MINOR WISDOM, Chairman, and EDWARD WEINFELD, EDWIN A. ROBSON, JOSEPH S. LORD, III, STANLEY A. WEIGEL, ANDREW A. CAFFREY, and ROY W. HARPER, Judges of the Panel.
PER CURIAM.
On January 17, 1977, the Panel issued an opinion and order that maintained bifurcated pretrial proceedings in this litigation: MDL-201 before the Honorable George H. Boldt in the Northern District of California and MDL-201A before the Honorable Edward N. Cahn in the Eastern District of Pennsylvania.
In re Sugar Industry Antitrust
Litigation, 427 F.Supp. 1018, (Jud.Pan.Mult.Lit.1977). The complaints in both MDL-201 and MDL-201A followed the Government’s complaints in two criminal actions and three injunctive actions filed in the Northern District of California in late 1974, and basically allege that various defendants and co-conspirators combined from as early as 1949 until the mid-1970’s in violation of Section 1 of the Sherman Act to fix, raise, maintain and stabilize the price of refined cane and/or beet sugar on a regional basis.
On March 30, 1977, a federal grand jury in the Eastern District of New York indicted four companies on charges that they conspired in violation of Section 1 of the Sherman Act to fix the price of cane sugar sold for industrial purposes. According to the indictment, the alleged price-fixing began in August 1972, shortly after Amstar Corporation announced a new pricing policy that eliminated discounts and provided that all sales of refined industrial sugar were to be made at list prices. The indictment alleges that the four defendants — SuCrest Corp.; PepsiCo, Inc.; RSN Projects, Inc.; and CPC International, Inc.
— discussed Amstar’s policy with each other and agreed to initiate similar policies in a fifteen state area in the Northeast. This unlawful conduct continued until September 1973, the indictment alleges. On May 19, 1977, the four defendants pleaded no contest to these charges.
Shortly after the Eastern District of New York grand jury handed down its indictment,
City Club
and
Crown Beverage
were commenced in the Eastern District of New York against the four defendants named in that indictment. The complaints in
City Club
and
Crown Beverage
track the allegations of the New York indictment. Both actions are brought on behalf of a class of all purchasers of industrial cane sugar from SuCrest, PepsiCo, RSN and CPC in the fifteen states covered by the recent indictment.
Connecticut
was filed by the State of Connecticut as a class action on behalf of the state and its political subdivisions. Fourteen defendants, including SuCrest, RSN, CPC and PepsiCo, are named in this action. The complaint alleges that these fourteen defendants and various co-conspirators combined in violation of Section 1 of the Sherman Act to fix and raise the price of all forms of refined cane and/or beet sugar in the states covered by the New York indictment. The allegations of the complaint cover a time period commencing sometime prior to 1970 and continuing to at least December 1974.
Because
City Club, Crown Beverage
and
Connecticut
appeared to share questions of fact with the actions in MDL-201A, the Panel issued orders conditionally transferring these three actions to the Eastern District of Pennsylvania for inclusion in MDL-201A.
PepsiCo and plaintiffs in
Crown Beverage
and
City Club
have moved to vacate the conditional transfer orders. All responding parties favor the inclusion of
Connecticut, City Club
and
Crown Beverage
in MDL-201A. We find that these three actions raise questions of fact common to the previously transferred actions and that their transfer to the Eastern District of Pennsylvania pursuant to Section 1407 will best serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation.
All movants argue that the disparage conspiracy issues, time periods, geographic markets, products and damages issues involved in
Crown Beverage
and
City Club
as compared to the actions in MDL-201A do not give rise to significant common questions of fact.
Plaintiffs in
Grov/n Beverage
and
City. Club
also contend that inclusion of those two actions in MDL-201A would unduly delay their progress and would not serve the convenience of the parties and witnesses. Discovery in
Crown Beverage
and
City Club
will be much less extensive than that in MDL-201A, and will be conducted almost exclusively in the Eastern District of New York, these plaintiffs assert. They argue that all relevant grand jury documents are located in that district, and that since all parties in
Crown Beverage
and
City Club
have their headquarters in the New York metropolitan area, their documents and many potential witnesses are located there. Finally, these plaintiffs maintain that they will make every effort voluntarily to coordinate their discovery efforts with those of the parties in MDL-201A in the limited areas in which discovery in
Crown Beverage
and
City Club
may overlap with discovery in MDL-201A.
PepsiCo argues that the orders conditionally transferring
Connecticut, Crown Beverage
and
City Club
to MDL-201A should be vacated because coordinated or consolidated pretrial proceedings involving these three recently filed actions, in which PepsiCo is a defendant, and the actions in MDL-201A,
in which PepsiCo is a member of the plaintiff industrial user class, would not promote the just and efficient conduct of this litigation.
In defining the industrial user class in MDL-201A, PepsiCo states, Judge Cahn excluded all defendants in any action included in MDL-201A.
See In re Sugar Industry Antitrust Litigation,
73 F.R.D. 322, 359 (E.D.Pa.1976). PepsiCo contends that while the plaintiffs in the three recently filed actions have the right to sue Pepsi-Co, if at this late date those actions are included in MDL-201A, the provision excluding defendants from the industrial user class may serve to deprive PepsiCo of its rights as a member of the plaintiffs’ class.
Even if Judge Cahn were to seek to protect PepsiCo’s status as a plaintiff by redefining the classes to permit PepsiCo to be both a plaintiff and a defendant in MDL-201A, the efficient conduct of the litigation would be impeded, PepsiCo asserts. Pepsi-Co points out that Judge Cahn has appointed lead and liaison counsel for both plaintiffs and defendants in MDL-201A. Since PepsiCo would have an adverse interest to both groups, it would not be welcomed as a member of either group, PepsiCo asserts. Therefore, neither group would be in a position at any time to represent all plaintiffs or all defendants. The impact on the speed with which the litigation could be concluded, as well as the impact on PepsiCo’s rights both as a plaintiff and a defendant, might be severe, PepsiCo argues.
These arguments are not persuasive. A thorough review of the complaints in
Crown Beverage, City Club, Connecticut
and the actions in MDL-201A reveals that all the factual issues raised in
Crown Beverage, City Club
and
Connecticut
already are encompassed within the proceedings before Judge Cahn. In addition, the classes sought in
Crown Beverage
and
City Club
are subsumed in the industrial user class certified by Judge Cahn, and the class sought in
Connecticut
is subsumed within the purported classes in two actions in MDL-201A,
City of Philadelphia
and
School District of Philadelphia.
Therefore, inclusion of these three actions in the Section 1407 proceedings in MDL-201A is necessary in order to ensure the prevention of duplicative discovery and eliminate the possibility of inconsistent class and other pretrial rulings.
The fear of plaintiffs in
Crown Beverage
and
City Club
that inclusion of their actions in MDL-201A may unduly prolong those two actions is clearly unwarranted. All documents provided to the New York grand jury by defendants SuCrest, RSN and CPC
have already been discovered in MDL-201A, and plaintiffs in MDL-201A have offered to provide plaintiffs in
Crown Beverage
and
City Club
with access to these and other already discovered documents relevant to those two actions. See
also Manual for Complex Litigation,
Parts I and II, § 3.11 (rev. ed. 1973). Furthermore, plaintiffs in MDL-201A represent that they have scheduled numerous depositions in the next few months, including depositions of employees and former employees of the four defendants named in
Crown Beverage
and
City Club.
Judges Boldt and Cahn have entered a joint discovery procedures order in MDL-201 and MDL-201A providing that all parties who do not attend a particular deposition shall have an opportunity to review a transcript of the deposition and conduct a delayed examination on any matters not fully covered that might affect their interests.
See Manual, supra,
Parts I and II, § 2.31. Thus, participation in the MDL-201A plaintiffs’ discovery program1 will fully protect the interests of plaintiffs in
Crown Beverage
and
City Club
while at the same time minimize all parties’ overall expense. Moreover, we note that in MDL-201A Judge Cahn has established a discovery cut-off date of November 1, 1977, and a trial date of April 15, 1978.
Finally, we are of the view that PepsiCo’s concern about the role or roles that it shall
continue to play in MDL-201A is most properly addressed to Judge Cahn. He has become thoroughly familiar with all the issues involved in this complex litigation, and therefore is clearly in the best position to fully consider and monitor the effects of all the issues presented by PepsiCo concerning its participation in MDL-201A.
IT IS THEREFORE ORDERED that, pursuant to 28 U.S.C. § 1407, the actions entitled
State of Connecticut v. Amstar Corp., et al.,
D.Conn., Civil Action No. H-77-181;
Crown Beverage Corp. v. CPC International Inc., et al.,
E.D. New York, Civil Action No. 77-C-670; and
City Club Beverage Corp., et al. v. SuCrest Corp., et al.,
E.D. New York, Civil Action No. 77-C-639, be, and the same hereby are, transferred to the Eastern District of Pennsylvania and, with the consent of that court, assigned to the Honorable Edward N. Cahn for coordinated or consolidated pretrial proceedings with the actions already pending there in MDL-201A.