IN RE: Convenient Food Mart Franchise Litigation

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BEFORE THE JUDICI ANE CoEON AHO 972 EEMULTIDISTRICT LIEYGATION. FLEECLERK GF Tio 14A0 : CoPhe Ali] i He
IN RE CONVENIENT FOOD MART )
FRANCHISE LITIGATION ) DOCKET NO. 108
OPINION AND ORDER |
BEFORE ALFRED P. MURRAH, CHAIRMAN, AND JOHN MINOR WISDOM, ST EC ;
EDWARD WEINFELD*, EDWIN A. ROBSON*, WILLIAM H. BECKER, oo SEER
JOSEPH S. LORD, III, AND STANLEY A. WEIGEL*, JUDGES OF . VR	THE PANEL
PER CURIAM .
The four actions now before the Panel relate to the oo To :
franchise operation of Convenient Food Mart, Inc. Three of A Co
the actions are brought by franchisees of Convenient or of LL SE
its regional franchisors and the fourth is brought by one of ’
Convenient's regional franchisors.yi/ The Panel ordered the BT Co
parties to these actions to show cause why the actions should : pt
not be transferred to a single district for coordinated or oo .
consolidated pretrial proceedings pursuant to 28 U.S.C. §1407. Sn oo
* Although Judges Weinfeld, Robson and Weigel were unable to oe cn
attend the Panel hearing, they have, with the consent of all : oo
parties, participated in this decision. : .1/ Franchises to operate Convenient Food Marts are granted
in two ways. Some store operators, like those in the Halverson }case in the Northern District of Illinois, obtained their .
franchises directly from Convenient. Others, like the plain- :
tiffs in the Illinois Worrell and Nebraska McCoy actions, oo :
received their franchises through intermediate regional fran- :
chisors such as Chicago Central C.F.M., Inc. and C.F.M. of : a
Nebraska, Inc. EE

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~ On the basis of the parties' written responses and the hearing
on this matter, we conclude that the just and efficient conduct
of the litigation and the convenience of the parties and
witnesses require that all actions, except that action brought
by a regional franchisor of Convenient, 2/ be the subject of
coordinated or consolidated pretrial proceedings in the
Northern District of Illinois.
All three franchisee actions contain similar allega-
tions concerning alleged antitrust violations by Convenient
and the other defendants in the operation of the Convenient
Food Mart franchise system. One of the central allegations
is that Convenient and its regional franchisors illegally
C) required the franchisees to purchase, sell and use products
and equipment designated by it. Several plaintiffs have
alleged that Convenient is owned and controlled by certain
other defendants in order to provide a captive market for
their products. And the plaintiffs in the McCoy and
Halverson actions both seek to represent a class consisting
of present. and former franchisees of Convenient in asserting
these allegations.
Defendants contend that each of these actions is
brought principally against the regional franchisor and will
not raise common issues of fact, but that contention is not
2/Richard E. snyder v. Convenient Food Mart, Inc., N.D.
® I11., Civil Action No. 71 C 804.

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® hepersuasive on the facts outlined here. The question of
Convenient's control of its regional franchisors is at issue
in these cases and each of the franchisee plaintiffs has
named Convenient a defendant in asserting the common allega-
tions. Conflicting class representation claims are also
asserted in two of the actions. Transfer is, therefore,
necessary to avoid duplication of discovery and the possibi-
lity of inconsistent class determinations, see, e.9., In re
Hotel Telephone Charge Antitrust Litigation, 341 F. Supp. 771
(J.P.M.L. 1972), and the Northern District of Illinois, where
defendants' documents and the majority of witnesses are
located, is the obvious transferee district for this litigation.
C C.F.M. of Nebraska, Inc., the regional franchisor
- defendant in the McCoy action in Nebraska, asks that certain
allegedly individual claims against it be remanded to Nebraska.
Those claims are said to involve the contractual relationship
between McCoy and C.F.M. and to be of no interest to the
other parties, We are not convinced, however, that discovery
concerning these claims will not overlap the other discovery
to be conducted in the Northern District of Illinois. We
think it best to deny defendants' motion for remand and to
allow the transferee judge to determine whether discovery on
these claims can be coordinated with the remaining discovery.
If coordination is impossible or undesirable, the transferee
judge can suggest to the Panel, at or before the conclusion of
( pretrial proceedings, that certain claims are appropriate for

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® remand. See Rule 15(c¢), Rules of the Judicial Panel on Multi-
district Litigation (amended August 30, 1972).
All parties oppose inclusion in coordinated and con-
solidated pretrial proceedings of the Snyder action, brought
by a regional franchisor of Convenient, on the grounds that
it raises no issues of fact common to the other actions and is
far advanced in pretrial preparation. Since that action is
pending in the transferee district, it will not be transferred.
Whether the pretrial proceedings in the Snyder action should
be included in consolidated or coordinated pretrial proceedings
should be decided by the court of the transferee district.
IT IS THEREFORE ORDERED, that the action pending in
® the District of Nebraska and listed on the attached Schedule A
be, and the same hereby is, transferred to the Northern
District of Illinois and, with the consent of that court,
assigned to Judge Richard B. Austin, pursuant to 28 U.S.C.
§1407, for coordinated or consolidated pretrial proceedings
with the actions pending in that district and listed on the
attached Schedule A.
IT IS FURTHER ORDERED, that the motion to remand
certain claims pending in the action Rita J. McCoy, etc. v.
Convenient Food Mart, Inc., et al., D. Nebraska, Civil Action
No. 71-0-343, be, and the same hereby is, DENIED.
@®

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SCHEDULE A DOCKET NO. 108
DISTRICT OF NEBRASKA
Rita J. McCoy, etc. v. Convenient Food Civil Action
Mart, Inc., et al. No, Civ-71-0-343
NORTHERN DISTRICT OF ILLINOIS
Roger O. Halverson, et al. v. Convenient Civil Action
Food Mart, Inc., et al. No. 70 C 499
David Worrell, et al. v. Convenient Food Civil Action
‘Mart, Inc., et al. No. 72 C 1308