IN RE: Multidistrict Civil Antitrust Litigation Involving SCM Photocopy Paper Monopoly

Case MDL No. 28 Document 2 Filed 04/30/15 Page 1 of 8
JUDICIAL PANEL Ope —— mo
: MULTIDISTRICT Ligation = he
Flo EE .
| THE JUDICIAL PANEL . = i
ON 0CT	2 71059 haMULTIDISTRICT LITIGATION EE
PATRICIA 0. WiLT ans
oo CLERK
N RE MULTIDISTRICT CIVIL ANTITRUST )
ITIGATION INVOLVING PHOTOCOPY PAPER |) DOCKET NO. 28
OPINION AND ORDER
EFORE ALFRED P. MURRAH*, CHAIRMAN, AND JOHN MINOR WISDOM, Ce
DWARD WEINFELD, EDWIN A. ROBSON, WILLIAM H. BECKER, JOSEPH
. LORD, III*, AND STANLEY A. WEIGEL*, JUDGES OF THE PANEL
iR CURIAM . oo
On August 15, 1969, the Panel ordered the parties in the :
‘tions listed on the attached Schedule A to show cause why :
iese actions should not be transferred for coordinated or a.
'nsolidated pretrial proceedings under 28 U.S.C. §1407 to a EE a.
strict or districts other than those in which they were then | : :
nding.l/ All parties filed responses to the show cause order -
d, with a single exception?/, all vigorously opposed transfer oo oo
any of these actions at the Present time. After reviewing _ oo EE
ese responses and considering the arguments presented at the I
Although Judges Murrah, Lord and Weigel were unable to attend2 hearing on September 26, 1969, they have, with the consent
all parties, participated in this decision.
Another related action filed in the District of Utah,
Jance Business Equipment Co. v. SCM Corp., was dismissed a oo
7 days before the show cause order was entered.
The plaintiff in the Arizona action does not oppose transfer
this case for coordinated or consolidated pretrial proceedings.

Case MDL No. 28 Document 2 Filed 04/30/15 Page 2 of 8
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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 Cincinnati Air
Disaster Litigation (TWA), 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 reasons3’/ or is it an attempt to create an illegal
® tying arrangement. 3/ The nature, scope, purpose, and implementa-
tion 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 pre-
trial proceedings is not mandated by a finding that common
questions of fact permeate the actions. See, for example,
3/ General Counsel for SCM asserts that such a recommendation
is made to insure quality reproductions and reliable perfor-
mance of SCM photocopy equipment. .
4/ In Advance Business Systems and Supply Co. v. SCM Corp.,
: F.2d (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
C as effective as SCM paper" for use with SCM photocopy machines.

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In re Scotch Whiskey, 299 F. Supp. 543 (Jud.Pan.Mult.Lit.
1969) and In re Air Crash Disaster at Falle 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
i ® convenience of the parties and their witnesses but it seems
clear that such transfer for coordinated or consolidated pre-
trial proceedings relating to the common questions of fact
would indeed serve the convenience of the parties and their
witnesses.3/ -
As discovery has been completed in the Virginia Impres-
sion 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, Ete., 295 F. Supp. 39 (Jud.
Pan. Mult. Lit. 1968). Discovery in several other actions
5/ 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, ____ F. Supp. ___ (Concurring Opinion) (Jud.
Pan. Mult. Lit. 1969).

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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, __ _ F. Supp. ___ (Jud.Pan.Mult.Lit. 1969)
with In re Seoteh Whiskey, supra. The number of transferable
actions, their location, their lack of complexity, their
relative size, and, most significantly, the fact that dis-
covery 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. Co
- ® 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 sub-
sequent developments make coordinated or consolidated pretrial
proceedings more appropriate. We shall therefore retain
®

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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.
®
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Case MDL No. 28 Document 2 Filed 04/30/15 Page 6 of 8
& i J
-@ " SCHEDULE A DOCKET NO. 28
NORTHERN DISTRICT OF CALIFORNIA
1. Roy Davenport d/b/a Vallejo Typewriter Civil Action
Co. v. SCM Corporation No. 49570
2. Lloyd Cowan d/b/a Lloyd's Business Civil Action
Machines v., SCM Corporation No. 45633
DISTRICT OF MASSACHUSETTS
3. Bloom's Photo Supply, Inc., et al. v. Civil Action
SCM Corporation : No. 68-975-J
4. Automatic Business Systems Corporation Civil Action
v. SCM Corporation No. 69-147-W
DISTRICT OF ARIZONA
5. Avery Powers d/b/a Standard Office Civil Action
® System of Arizona v. SCM Corporation No. 6890-PHX
EASTERN DISTRICT OF VIRGINIA
6. Virginia Impression Products Co. Vv. Civil Action
SCM Corporation No. 5677-R

Case MDL No. 28 Document 2 Filed 04/30/15 Page 7 of 8
Co CO wmmevesmen
ESE EA - SE MULTE Fg 7 LISA Tg TE.
| SE DOCKET NO. 28 ° '®%%
RACE oo Co JuLt wo oo
: Lo EER esses
PIERY [IF THE BEES :
BEFORE THE JUDICIAL PANEL ON MULTIDISTRICT LITIGAT	TORS 15FLA |
IN RE MULTIDISTRICT CIVIL ANTITRUST LITIGATION INVOLVING SCM :
PHOTOCOPY PAPER MONOPOLY :
ORDER | Co
.. ..Having considered the responses of the parties to the. .
show cause order of May 26, 1970 and all arguments presented :
by counsel at the June 26, 1970 hearing, the Panel has
determined that the convenience	of parties and their witnesses oo
and the just and efficient conduct of these actions would not i MEE oo
be served by transfer for coordinated or consolidated pretrial o oo
proceedings under	28 U.S.C. §1407. ’ Ce
TRANSFER DENIED. © | Cr | |
- ~~. FOR THE PANEL: EE
Alfred P. Murrah — a .: : Chairman - : = : Co
as - { .

Case MDL No. 28 Document 2 Filed 04/30/15 Page 8 of 8
>. DOCKET NO. 28 | i SCHEDULE A
® : NORTHERN DISTRICT OF CALIFORNIA ny
] Roy. Davenport d/b/a Vallejo Typewriter civil Action’
© Co. Vv. SCM Corporation No. 49570
/ Lloyd Cowan d/b/a Lloyd's Business © civil Action: ! Machines v. SCM Corporation | No. 45633
J Lo
. ' DISTRICT OF MASSACHUSETTS
. Bloom's Photo Supply, Inc., et al. v. civil Action
SCM Corporation No. 68-975-J
Automatic Business. Systems Corporation.	v. civil Action
i SCM Corporation : No. 69-147-W
| Co
DISTRICT OF ARIZONA
) Avery Powers d/b/a Standard Office System Civil Action
- of Arizona v. SCM Corporation No. 6890-PHX
i DISTRICT OF CONNECTICUT
Contoura Business Machines, Inc. V. Civil Action
® SCM Corporation No. 13728
- EASTERN DISTRICT OF LOUISIANA }
Eaves, Inc. v. SCM Corporation Civil Action
: . Co No. 70-709
oo © SOUTHERN DISTRICT OF NEW YORK i
01d Town Corporation v. SCM Corporation Civil Action
No. 70 Civ 1367
NORTHERN DISTRICT OF NEW YORK
Business Services Company of Utica, Inc. Vv. Civil Action
ol "SCM Corporation : . No. 70 CV 153
© _ Cen } /