IN RE: Olympia Brewing Co. Antitrust and Contract Litigation

se MDL No. 242 Document 2 Filed 05/01/15 Page 1 of 15
. . Ji Ve JUDIDIRL Pave Og
. ~ / MULT!STRICT SATIONSE EA | FILET
C ] \ ‘ | BEFORE THE JUDICIAL PANEL JUN21 1975	i : © ON |
_ : PATRICIA DOW IRD
. MULTIDISTRICT LITIGATION CLERK CF THE PANEL
IN RE OLYMPIA BREWING COMPANY 2) DOCKET NO. 242ANTITRUST LITIGATION )
OPINION AND ORDER
oo . BEFORE JOHN MINOR WISDOM, CHAIRMAN, AND EDWARD WEINFELD, EDWIN
. A. ROBSON, WILLIAM H. BECKER, JOSEPH S. LORD, III, STANLEY A.
WEIGEL*, AND ANDREW A. CAFFREY, JUDGES OF THE PANEL
. PER CURIAM
” On February 28, 1975, Olympia Brewing Company acquired
oo essentially all the assets of Theodore Hamm Company. Soon
C after this acquisition, Olympia began a large-scale cancellation
program of many of the distribution contracts that Hamm pre-
: viously had made with various independent distributors. Nearly
250 Hamm distributors were terminated in the process and
: replaced by Olympia-owned distributors and former Hamm dis—
tributors. In addition, Olympia completely discontinued
oo distribution of Hamm brands in.the Southeastern United States.
Many of the Hamm distributors that Olympia did not
elect to appoint as distxibutors of "Hamm's" and other beer
oo brands subsequently initiated several actions against Olympia
—_—
* Judge Weigel was unable to attend the Panel hearing and,
® ~ therefore, took no part in the consideration or decision	of this matter.

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or Hamm or both alleging illegal conduct in connection with the
} ® acquisition and plaintiffs' terminations. As a result, 55 :
actions are presently pending in four federal districts: 52
in the District of Minnesota; and one each in the Western
District of Washington, the Southern District of California and
the District of South Carolina. :
Co The Washington action and some or all of the Minnesota
actions contain allegations under Sections 1 and 2 of the
Sherman Act, Section 7 of the Clayton Act, and various state }
| statutes, together with claims for breach of contract. Some
- Minnesota plaintiffs include alleged violations of Sections 2
and 3 of the Clayton Act as well as tortious interference :
® with contractual relationships. Both Olympia and Hamm are
: y defendants in all the Minnesota and Washington actions.
Although the Washington plaintiffs and some of the Minnesota
plaintiffs did not request injunctive relief, many of the
‘Minnesota plaintiffs did seek such relief and currently are
distributing Hamm's beer pursuant to temporary injunctions
| entered by the district court. The Court of Appeals for the
} Eighth Circuit has upheld the injunctions as they apply to
Olympia, vacated them as they related to Hamm, and stated
that the district court is to determine these actions on the
merits "with all convenient speed." | |
® Co ’

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® The Minnesota actions have been consolidated for pre~
trial purposes, and the parties agree that substantial discovery
has taken place therein. They represent	.that Olympia and |
Hamm have produced thousands of documents, which have been
copied by plaintiffs and are currently being computerized
_ in Minnesota; and that both plaintiffs and defendants have
’ responded to numerous interrogatories. Defendants have only re-
. | cently begun their document discovery, however; and few, if any,
depositions have been taken. Little or no discovery apparently
. has occurred in the Washington actions. | :
h : The California action was commenced only against
oo Olympia by two former Hamm distributors who were also directors
J |
and shareholders of Hamm at the time of its acquisition by
| Olympia. The complaint originally sought recovery for Olympia's
alleged violation of Section 2 of the Sherman Act and Section 7
| of. the Clayton Act, as well as for fraud and breach of contract.
The court has denied plaintiffs' requests for a preliminary
injunction, and has granted a partial summary judgment dis-
| missing the contract claim and the Section 7, Clayton Act
allegations. The court certified the dismissal of the Clayton
o Act claim for appeal pursuant	to 28 U.S.C. §1292(b), and this
issue presently is before the Court of Appeals for the Ninth
Circuit. Thus, only the Sherman Act and fraud counts remain
® at issue in the district court.

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R ® The action pending in the District of South Carolina
| originally was brought against both Hamm and Olympia as a class
action on behalf of all former South Carolina Hamm distributors
who were not appointed as distributors by Olympia when it
decided to forego marketing Hamm's beer in the Southeast.
This action alleged that: (1) Hamm and Olympia fraudulently
induced plaintiffs to contract and expend funds and efforts
to distribute Hamm's beer; (2) defendants conspired for their
: own gain in reckless disregard of plaintiffs' interests: and
(3) Olympia wrongfully induced Hamm to breach its contracts |
with plaintiffs. Unlike the other actions in this litigation,
® E the complaint does not allege violations of federal antitrust
laws. The South Carolina court recently dismissed all claims
: against Olympia for lack of in personam jurisdiction, leaving
- Hamm as the sole defendant.
: ~* Pursuant to 28 U.S.C. §1407(c) (i), the Panel issued
| an order to show cause why the actions in this litigation should
not be transferred to a single district for coordinated or
consolidated pretrial proceedings. Plaintiffs in the Ce
California	and South:Carolina actions favor transfer to.
Minnesota; the California plaintiffs state that the Western
District of Washington also would be a suitable transferee :
® :

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| forum. Defendant Hamm favors transfer of only the Washington
R [ action to the District of Minnesota. Plaintiffs in 22 of the
52 Minnesota actions agree that only the Washington action
should be transferred to Minnesota, but they argue that
transfer should be solely for coordinated pretrial proceedings
under Section 1407. Defendant Olympia and plaintiffs in the
Washington action and 30 of the Minnesota actions oppose any
Section 1407 transfer in this litigation; should the Panel’
order transfer, however, the former plaintiffs favor the
Western District of Washington as the appropriate transferee
district, while the latter plaintiffs suggest the District
| of Minnesota.
( | | We find that the actions pending in the District of
Minnesota and the Western District of Washington share common
questions of fact and that transfer of the Washington action
to the District of Minnesota for coordinated or consolidated
pretrial proceedings pursuant to Section 1407 with the
actions pending there will best serve the convenience of the
parties and witnesses and promote the just and efficient conduct
of this litigation. We also find that transfer of the actions
pending in the Southern District	of California and the District
of South Carolina will not, on balance, serve the convenience
| of the parties and witnesses or promote the just and efficient
® conduct of the litigation and, accordingly, we deny their
transfer. :
] v

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: I. The Washington	and Minnesota Actions
.@ All parties generally agree that the Minnesota and
Washington actions share common questions of fact relating to
defendants' conduct and intentions in the acquisition of Hamm's
assets. Nevertheless, the Washington plaintiffs assert that
individual factual questions predominate since the actions
: involve disparate geographic beer markets. The Washington
| plaintiffs as well as the other parties opposed to transfer
of the Washington action to Minnesota contend that because
| 5 : discovery is far more advanced in Minnesota than in Washington,
I transfer would serve only to delay the pretrial proceedings
ay in Minnesota until discovery in the Washington action is
® brought to a comparable point. This delay, it is argued,
) would frustrate the mandate of the Eighth Circuit that the
Co Minnesota actions be brought to trial "with all convenient
: speed." Moreover, these parties state that counsel already
| have been successful in voluntarily coordinating discovery
) in this litigation, and they contend that any possibility of
B duplicative discovery can be avoided by continued cooperation
among counsel.
We are persuaded that the Minnesota and Washington
’ actions share significant common questions of fact concerning,
inter alia, defendants' conduct and intentions pertaining to
®

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® the acquisition of Hamm's assets, which obviously is the
a fovntainhead of this litigation, and that these common
questions predominate over any unique factual issues relating
to different geographic product markets. We are not persuaded,
however, that transfer of the Washington action to the District
of Minnesota for coordinated or consolidated pretrial proceedings
will delay the processing of the actions already pending in that
forum. To the contrary, we see no reason why the ongoing dis-
: covery cannot continue expeditiously while at the same time
the Washington plaintiffs harmoniously blend their pretrial :
Co preparation into that of the Minnesota plaintiffs to the
[ . overall benefit of everyone concerned. Indeed, we note that
counsel representing 23 California distributors stated during
: oral argument that although the actions on behalf of these
oe plaintiffs were filed in Minnesota relatively late, they had
no trouble catching-up with the previously completed discovery. :
| Transcript	at 18-19. The transferee judge, moreover, may :
enter appropriate orders making all discovery already taken
in the Minnesota actions available to the Washington plaintiffs,
thereby avoiding unnecessary duplication and inconvenience.
See In re Koratron Patent Litigation, 327 F. Supp. 3559, 560
(J.P.M.L. 1971) 5 Manual for Complex Litigation, Parts I and ITI,
® | |

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. ® §§3.11 (rev. ed. 1973). And while we laud the spirit of coopera-
tion exhibited by counsel in this litigation, assigning these
| actions to a single judge will ensure the avoidance of duplica-
tive discovery and concomitantly serve the desired goal of
conserving judicial effort. The precise manner and extent
of coordination or consolidation among these actions is, of
| course, left entirely to the discretion of the transferee
) judge. See In re Equity Funding Corporation of America Litiga-
tion, 375 F. Supp. 1378, 1384 (J.P.M.L. 1974). ’
To II. The California Action
| : Most parties are opposed to inclusion of the California
( action in Section 1407 proceedings because it apparently is
in the final stages of pretrial preparation, and because a
significant portion of that action -- the Section 7, Clayton
Act claim -- is currently before the Court of Appeals for. the
| Ninth Circuit. Some parties also argue that since the |
California plaintiffs are former shareholders and directors
of Hamm, their action is substantially different from the
other actions in this litigation. The California plaintiffs,
on the other hand, contend that the two counts remaining in
this action before the district court raise factual issues
common to the rest of the actions and therefore ¢ransfer is

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| appropriate in order to avoid duplication of discovery. |
-@ + Plaintiffs add that if dismissal of the Clayton Act claim is
reversed on appeal, additional commonality will arise.
We were advised by counsel for Olympia during oral
argument that one plaintiff had dismissed the remaining two
counts on the day before the Panel hearing and that the other
. | individual plaintiff stated before the California court that |
if he failed on appeal, he would abandon his case. Transcript
: at 14. On the basis of the record before us, we have no
reason to doubt these assertions. Thus, in balancing all the
contentions of the parties, we believe that this action in
its present posture may well be approaching its final stages
® and, as a result, it should not be included in the transfer
: we are herewith ordering.
III. (The South Carolina Action :
| The South Carolina plaintiffs maintain that even
though their action does not involve antitrust allegations,
it should be embraced in the Section 1407 proceedings because
- many of the underlying factual issues are common with the
other actions. All remaining parties who mention the South
. Carolina action, however, argue that this action should not be
[

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® transferred because its factual allegations are different
i from those involved in the remainder of this litigation.
E Upon close analysis of the complaint in the South
~ Carolina action in relation to those in the other actions, |
we believe that the South Carolina action is substantially
distinct to such a degree that the just and efficient conduct
of this action as well as the litigation taken as a whole can
best be achieved by leaving the former alone. Unlike the |
rest of the actions in this litigation, the South Carolina
} action focuses on defendant Hamm's conduct ‘in connection with the
fact that Hamm had undertaken expansion into South Carolina
® } relatively recently and after the acquisition Olympia decidedto discontinue that expansion. |
R IV. The Transferee Forum
_ Although the Western District of Washington has been
| suggested as the transferee forum for this litigation, the
| District of Minnesota is clearly the most appropriate choice. :
The vast majority of the actions are already pending there.
Pretrial proceedings in the actions in that district are moving
along in a coordinated fashion and are further advanced than
those in the Washington action. And in addition, most
parties agree on Minnesota's preferability. :
o

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IT IS THEREFORE ORDERED that the action listed on
. o the following Schedule A and pending in the Western District
of Washington be, and the same hereby is, transferred to the
District of Minnesota and, with the consent. of that court,
assigned to the Honorable Charles R. Weiner, sitting by
designation under 28 U.S.C. §292(d), for coordinated or con-
solidated pretrial proceedings pursuant to 28 U.S.C. §1407"
: with the actions already pending there and listed on Schedule A.
IT IS FURTHER ORDERED that transfer of the actions
listed on Schedule A and pending in the Southern District of
California and the District of South Carolina be, and the
same hereby is, DENIED, without prejudice to the right of
® any party to seek reconsideration at a later time if it feels
. future circumstances so warrant. |

Case MDL No. 242 Document 2 Filed 05/01/15 Page 12 of 15
MDL-242 -- IN RE OLYMPIA BREWING CO. ANTITRUST LITIGATION
SCHEDULE A :
® WESTERN DISTRICT OF WASHINGTON	[S ma a Svinte Snbalnde uit
August Distributing Co., Inc., et al. v. Olympia
Brewing Co., et al., C.A. No. C75-3728S
} ~. DISTRICT OF SOUTH.CAROLINA
—_—e eo ora LA ULINA
Martschink Beer Distributors, Inc., etc. v. re
Theodore Hamm Co., et al., C.A. No. 75-1713 i i	Semen	dam Lo., et al
SOUTHERN DISTRICT OF CALIFORNIA = .	—_— oes Or LAL URNIA
John Lenore & Co., et al. v. Olympia Brewing Co.C.A. No. 75-0233-7
DISTRICT OF MINNESOTAme	ME Soho LA
: Stewart J. Nephew v. Theodore Hamm Co., et al.. C.A. No. 5-75=%2 i
- Douglas R. Zilz v. Theodore Hamm Co., et al.
~C.AUNo.5-75-1250 —————
J. A. Dady, etc. v. Olympia Brewing Co., et al. : :
Lammers Beverage Co. v. Olympia Brewing Co., et al. C.A. No.	4=T5=279
: Doyle's Interstate Beverage Co. v. Olympia BrewingCo., et al., C.A. No. 4-75-7080
Sojourn Inc. v. Olympia Brewing Co., et al.
) : .C.A. No. 4-75-2922 .
Gilbert Baumeister v. Olympia Brewing Co., et al.
“CAT	No. 475-293 — —————————°
Don Kerr, Inc. v. Olympia Brewing Co., et al.
TCANo. 4-75-29¢ —— ———F——x
' Pritzl Beverage Inc. v. Olympia Brewing Co., et al.
: C.A. No. 4-75-2795 .
Decker Distributing, Inc. v. Olympia Brewing Co.,et al., C.A. No. 4-75-29%
Ament & Sons, Inc. v. Olympia Brewing Co., et al.
® Jerry O'Connell Dist., Inc. v. Olympia Brewing Co.,et al., C.A. No. 4-75-2938

or 15	Case MDL No. 242 Document2 Filed 05/01/15 Page 13 of
. MDL-242 -- schedule A -- p. 2 |
DISTRICT OF MINNESOTA (CONT.
Geo. Walter Dist. Ltd. Vv. Olympia Brewing Co., et al,	C.A. No. = -
Raphael J. Bowar v. Olympia Brewing Co.: C.A. No. 4=75=300
Lind Distributing Co., Inc. Vv. Olympia Brewing Co.,et al., C.A. No. 4-75-3001
Hamm's Rochester Distributing Co., Inc., et al. v. :Co . Olympia Brewing Co., et al., C.A, No. 4-75-30¢	deo —oewing Co., et al
S&S Distributors, Inc. v. Olympia Brewing Co., et al.	C.A. No. 4-75=309
Lee Hess & Sons, Inc. v. Olympia Brewing Co., et al.
C.ANo.4-75-32 ”
: Hamm Brew Sales Co. Vv. Olympia Brewing Co., et al.	C.A. No. 4-75-3727
Krunrei Beverage Distributing co. wv, Olympia Brewing Co.,	et al. CIA. NG. Z=75=333 :
C East Town Distributors Co. v. Olympia Brewing Co., et al.	1] LJ NO, - -
Schwan Wholesale Co., Inc. v. Olympia Brewing Co., et al.* . NO, - - R .
Johnston's Inc. v. Olympia Brewing Co., et al.C.A. No. 4~75-341
~~ H&H Distributing Co. v. Olympia Brewing Co., et al.	C.A. No. 4-75-3422
Russ Maita Distributors, Inc. Vv. Olympia Brewing Co.,7 et al., C.A. No. 4-75-3389 .
Union Beverage, Inc. v. Olympia Brewing Co., et al.	C.A. No. 4-75-3990
Berutti Distributing Co., Inc. v. Olympia Brewing Co., ‘	et al. C.A.No. 4-75-3071
Ray Distributing Co. Vv. Olympia Brewing Co., et al.	C.A. No. 4=75=393
Magnani Distributing Co. v. Olympia Brewing Co., et al.@ C.A. No. 4-75-3693

L No..242 Document 2 Filed 05/01/15 Page 14 of 15
: Mp254 MPL Schedule A -~ p. 3
DISTRICT OF MINNESOTA (CONT.) -
@ Loren Rausser v. Olympia Brewing Co., et al.C.A. No. 4=75=39¢ :
- H & H Distributing Co. v. Olympia Brewing Co., et al.
C.A. No. 4=75-395 B
R&S Distributing Co. Vv. Olympia Bresing Co., et al.
C.A. No. 4=75-39%
Pasadena Beverage Corp. v. Olympia Brewing Co., et al.
C.A. No. 4-75-397
‘ Clark Miller Distributing Inc. v. Olympia Brewing Co.,
et al., C.A. No. 4-75-2398 Co
: Eagle Distributing Co., Inc. v. Olympia Brewing Co.,
: et al., C.A. No. 4-75-3997
Redding Beverage Corp. v. Olympia Brewing Co., et al,
- C.A. No. 4-75-400
United Beverage Distributors v. Olympia Brewing Co.,
: et al., C.A. No. 4-75-4071 } }
® H&M Distributing Co. v. Olympia Brewing Co., et al. :: C.A. No. 4-75-4001
. HeM Distributing Co. v. Olympia Brewing Co., et al.
: C.A. No. 4=75-402
~ Inaccas, Inc. v. Olympia Brewing Co., et al.,
: C.A. No. 4-75-4003 Se
| IE | " Medoncino Distributing Co. v. Olympia Brewing Co.,et al., C. A, No. 4-75-404
Bottomley Distributing Co., Inc. v. Olympia Brewing
Co., et al., C.A. No. 4-75-405
Gate City Beverage Distributors, Inc. v. Olympia
Brewing Co., et al., C.A. No. 4-75-406 :
Rex Distributing Co. v. Olympia Brewing Co.,
et al., C.A. No. 4-75=407

Filed 05/01/15 Page 15 of 15°
MpL-23%¢ MDls e483 DRCUMENT 2, g
DISTRICT OF MINNESOTA (CONT. :
. ® ~ Mountain Distributing Co. wv. Olympia Brewing Co.,et al., C.A, No. 4-75-2408
Consolidated Beverage Distributors v. Olympia Brewing‘ Co., et al., C.A. No. 4-75=409
Bert G. Gianelli Distributing Co. v. Olympia BrewingCo., et al., C.A. No. 4-75-410
Starr Brothers, Inc. v. Olympia Brewing Co., et al.C.A. No. 4~75-572 oo
R&M Distributing Co. wv. Olympia Brewing Co., et al.oo C.A. No. 4-75-5573
: Mark Twain Beverage Co., Inc. Vv. Olympia Brewing Co., et al.) C.A. No. 4-75-5714
Frank Lassandro v. Olympia Brewing Co., et al.
C.A. No. 4-75-5735
= Gorski Distributors, Inc. v. Olympia Brewing Co., et al.C.A. No. 4-75-57¢
Astro Beverage Corp. v. Olympia Brewing Co., et al.9 ~ C.A Wo. 4-75-4111 ————————=L—= Co
Co Needham Distributing Co., Inc. etc. v. Olympia Brewing. Co., et al., C.A. No. 4-75-285