IN RE: Uranium Industry Antitrust Litigation

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BEFORE THE JUDICIAL, PANEL ON MULTIDISTRICT LITIGATION I57¢ LL
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IN RE URANIUM INDUSTRY ANTITRUST LITIGATION sLIR grTt A A7ee b rs
ORDER CHANGING CAPTION OF LITIGATION ¥
1
In an effort to more accurately discribe the above-. ;{ i.
referenced litigation, oo | Se
IT IS ORDERED that all document filed in this litigation | i: ! aN
hereafter will bear the following caption:
IN RE URANIUM INDUSTRY ANTITRUST LITIGATION |
FOR THE~PANEL: SR
Patricia D.' Howard ce
Clerk of the Panel | RUDE
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3EFORE THE JUDICIAL PANEL ATi iiiii | C
ON CLERA CF wns Tries
MULTIDISTRICT LITIGATION
IN RE URANIUM INDUSTRY ) DOCKET NO. 342
ANTITRUST LITIGATION )
EDWARD WEINFELD, JUDGE OF THE PANEL, WITH WHOM : a
ROY W. HARPER, JUDGE OF THE PANEL, JOINS (concurring ST
in part and dissenting in part): -
I concur in the decision of my brethren that the three TVA Hz
| Tyr
actions should be centralized in a single district pursuant to : oo
28 U.S.C. §1407 for coordinated or consolidated pretrial pro- Cn
ceedings. I dissent, however, from that part of the opinion oo
which includes the Illinois action in coordinated or consoli- ) oo
dated pretrial proceedings with the three TVA actions. I would oo oh
allow the three TVA actions to proceed in coordinated or : Cn
consolidated pretrial proceedings separate from the Illinois
action in a district other than the Northern District of
Illinois. oo Co
The interests of Westinghouse and TVA are antagonistic in - eh
MDL-235 (uranium contract actions) and in MDL-342 (uranium CL
conspiracy actions). In the uranium contract actions, ome of
which has been brought by TVA, several utility companies allege B oo
that Westinghouse breached its contractual obligations for the oo -
present and/or future delivery of uranium to fuel nuclear power Co

Case MDL No. 342 Dgcument 2 Filed 05/05/15 Page 3 of 21 CT | |
plants. Westinghouse has pled as its defense in these actions a
that full performance of its contractual obligations for the RR
supply of uranium became "commercially impracticable	'by reason oo
of unforeseen developments and that Westinghouse was according-
ly excused from such performance by reason of Section 2-615 of
the Uniform Commercial Code. One of the principal unforeseen .
developments that Westinghouse has raised during pretrial and sin
the ongoing trial of those actions has been the alleged illegal
conspiracy among foreign and domestic uranium producers to
manipulate the price and availability of uranium, which is also
| the basis of the Illinois action now before the Panel. cu
Westinghouse asserts that proof of this conspiracy might Ra
establish its defense in the uranium contract actions and also : : -
entitle Westinghouse to relief in the Illinois uranium con-
spiracy action. To expect Westinghouse and TVA to cooperate Lo
effectively in attempting to prove a conspiracy that Westing- oo
house is asserting as a defense to the uranium contract claims _
instituted by TVA is unrealistic. The views cf Westinghouse .
and TVA concerning the focus and effects of this alleged
conspiracy are clearly in substantial conflict. EE
The counterclaims which have been filed in the Illineis Co
action add a further dimension of complexity to the already .
labyrinthian proceedings in that action. The numerous issues a

tT Case MDL No. 342 Document 2 Filed 05/05/15 Page	4 of 21
0. by those counterclaims do not involve any interests of TVA.
They will entangle the litigants in a variety of disputes
concerning the propriety of Westinghouse's marketing practices
with respect to nuclear reactors and fuel supplies for
nuclear reactors. For example, Gulf Oil Corporation (Gulf),
one of the counterclaimants, charges that Westinghouse
attempted to eliminate from the market a competing nuclear reactor
designed and manufactured by Gulf. Specifically, Gulf
alleges that Westinghouse (1) refused to supply to Gulf
at reasonable prices electric generators to be used in
Gulf's nuclear reactor system, (2) unfairly disparaged the
0... of the nuclear reactor system marketed by Gulf, (3)
submitted unreasonably low bids for nuclear reactor systems
while at the same time deliberately concealing substantial
financial losses on nuclear business, and (4) sold at
commercially unmatchable prices supplies of uranium which
Westinghouse did not have in its possession as part of a
total package in which Westinghouse's nuclear reactor
systems were also sold.
Furthermore, pretrial proceedings in the Illinois
action have been delayed substantially during the resolution
of the motions to disqualify Westinghouse's original counsel
® in that action. Westinghouse's substitute counsel stated

Case MDL No. 342 Dodurfient 2 Filed 05/05/15 Page	5 of 21 oe
during oral argument before the Panel that Westinghouse
will press for retention of its initial counsel because @®
that counsel is extremely knowledgeable about Westinghouse's
position in this litigation and Westinghouse will save
time and money by not having to reeducate new counsel.
Therefore, further delay of pretrial progress in the
Illinois action is likely.
In light of these circumstances, I do not believe
that coordinated or consolidated pretrial proceedings
between the Illinois uranium conspiracy action and the
three TVA uranium conspiracy actions would serve the convenience
of the parties and witnesses or promote the just and efficient oconduct of the litigation. Moreover, TVA is an arm of the
federal government that serves the public interest and it
should not be caught in the crossfire of the conflicting
positions of the private litigants. TVA is simply attempting
to recover damages for injuries it allegedly suffered in
connection with the uranium supply contracts specifically
enumerated in the TVA complaints and as a result of defendants’
alleged breach of certain duties owed to TVA under the
Tennessee Valley Authority Act of 1933. These interests
should not be submerged by the extensive claims and counter-
claims that are inherent in the various Westinghouse contro- o
veries with other litigants. I am thus of the view that

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C the TVA actions will be able to proceed toward trial
more expeditiously if they are allowed to proceed
separately from the Illinois action in a district other
than the Northern District of Illinois.

© Case MDLNo.342 Document2 Filed 05/05/ZB0ek rof2l B
3h | MOTE oo
BN BEFORE THE JUDICIAL PANEL TnI Ney Vo a
MULTIDISTRICT LITIGATION FEZ27 107s P24 CoIN RE URANIUM INDUSTRY ANTITRUST ) Clete Hh |LITIGATION ) TET snr
Homestake Mining Corp. v. Enerdyne ;
Cotp., D. New Mexico, — to ) DOCKET NO. 342 |-A. No. 77-609 P ) -
OPINION AND ORDER BEE
_— ¥
BEFORE MURRAY I. GURFEIN, CHAIRMAN, AND EDWIN A. ROBSON, aSTANLEY A. WEIGEL, ANDREW A. CAFFREY, ROY W. HARPER, AND
CHARLES R. WEINER, JUDGES OF THE PANEL.
PER CURIAM Co
I. BACKGROUND BE
A. The Actions In The Transferee District } iOn July 31, 1978, the Panel, pursuant to 28 U.s.cC. ’ oo
§1407, transferred three actions (the TVA actions) to the : oo
Northern District of Illinois and, with the consent of that So
court, assigned them to the Honorable Prentice H. Marshall
for coordinated or consolidated pretrial proceedings with N
a fourth action (Rio Algom) already pending there. In re B
Uranium Industrv Antitrust Litigation, 458 F. Supp. 1223 : | k : LE(J.P.M.L. 1978). These four actions involve an alleged RE
conspiracy to increase the price of uranium and to divide oo
portions of the world uranium market.
The complaints in the TVA actions contain virtually : co
identical allegations, but the defendants are different. E a
Ten foreign and three domestic companies allegedly engaged in |
various aspects of the uranium business are named as defendants.

Case MDL No. 342Dpcument 2 Filed 05/05/15 Page 8 of 21 - : oo
: The named defendants in each action are listed as co-conspirators | .
Ji) in the other actions. In each complaint in the TVA actions, ooA TVA alleges, inter alia, that beginning in 1972, the defendants -
and their co-conspirators, in violation of Sections 1 and/or 8
of the Sherman Act, conspired to rig bids, to fix the price, |
terms and conditions for the sale of uranium, and to allocate .
uranium sales in foreign and domestic markets. RE
Rio Algom was filed by Westinghouse Electric Corporation a
(Westinghouse) against twelve foreign and seventeen domestic
companies (including Homestake Mining Company) alleged to |
be producers, sellers, or agents for sellers of uranium.l/
The complaint in this action alleges that, beginning in oo
1972, the defendants formed an international cartel that . -
fixed and increased the price of uranium to purchasers within a
the United States; allocated the sale of uranium; boycotted i
tertain uranium purchasers; and otherwise eliminated competition : oo
among the defendants. Westinghouse claims that these activities | Co
violated Sections 1 and/or 8 of the Sherman Act. .
I7 Thedistrict court in the Northern District of Illinois
found some of the foreign defendants in default for failing -
to file answers.	to Westinghouse's complaint. Final default CLjudgments as to liability recently were entered against
these defendants. CT

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- 3 =
® In the Panel's earlier opinion in this litigation,
the Panel found that
these four actions share numerous complex factual questions
concerning, inter alia, whether there was a domestic
and/or international conspiracy in the uranium industry;
and if there was, who participated in the conspiracy;
what the purposes of the conspiracy were; how the partici-
pants attempted to effectuate those purposes; and what
the actual effects of the conspiracy were.
«+. [Thus] [t]he crux of these actions is the
allegation of a domestic and/or foreign conspiracy
in the uranium industry. Centralization of the Illinois
and TVA actions is necessary to prevent duplication
in the extensive and difficult discovery expected on
this key issue.
Id. at 1229-30.
On September 26, 1978, Judge Marshall entered an order
C coordinating for pretrial purposes the TVA actions and Rio
Algom. Earlier, Judge Marshall had approved a discovery schedule |
which basically provides that depositions on the merits
in this coordinated litigation were to commence in January
1979. This schedule also establishes a trial date in September
1980.
B. Homestake Mining Company's Earlier Action
The Panel has previously considered the question of
whether to include in In re Westinghouse Electric Corporation
Uranium Contracts Litigation (MDL-235) an action brought
by Homestake Mining Co., which is also the plaintiff in
the action now before the Panel, against Westinghouse (this
C action will be referred to as Homestake I). In the Panel'soriginal opinion in MDL-235, the Panel, pursuant to Section
1407, had centralized several acticns involving uranium

Case MDL No. 342 Document2 Filed 05/05/15 Page 10 of 21 . .
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supply contracts between Westinghouse and a number of utility
companies, including TVA, in the Eastern District of Virginia
for coordinated or consolidated pretrial proceedings. In
re Westinghouse Electric Corporation Uranium Contracts Liti-
gation, 405 F. Supp. 316 (J.P.M.L. 1975). Homestake I involved
the rights and obligations of Homestake and Westinghouse
under a 1974 contract by which Homestake agreed to sell
700,000 pounds of uranium to Westinghouse. This contract
stated that the source of this uranium would be a contract
between Homestake and a French corporation, Uranex, and
that Homestake would have no liability to Westinghouse should
Uranex fail to make delivery. After Uranex allegedly .informed
Homestake that Uranex was unable or unwilling ta deliver (
the uranium under their contract, Homestake filed Homestake
I against Westinghouse, seeking declaratory and injunctive
relief. Basically, Homestake sought a declaration that,
because of Uranex's failure or refusal to perform its contract
with Homestake, Homestake's obligation to deliver uranium
to Westinghouse was terminated. Westinghouse counterclaimed
against Homestake in this action for breach of contract
and unjust enrichment. In addition, Westinghouse raised
the defense of "unclean hands' against Homestake ,2/ alleging
that Homestake participated in the antitrust conspiracy
alleged in Westinghouse's complaint in Rio Algom.
7]	Homestake has advised the Panel that Westinghouse has C	withdrawn this defense in Homestake I.

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® The Panel declined to include Homestake I in MDL-235,	holding, inter alia, that:
although Westinghouse's 'unclean hands' defense
in Homestake [I] may share questions of fact
with Westinghouse's defense in the actions in
MDI-235 concerning the allegedly international
conspiracy, the issues in Homestake [I] are
basically unique to that action because they
involve the contractual relationships between
Westinghouse and Homestake as well as Homestake
and Uranex.
In re Westinghouse Electric Corporation Uranium Contracts
4/
Litigation, 436 F. Supp. 990, 995 (J.P.M.L. 1977).
C. The Action Now Before the Panel
The action presently before the Panel (Homestake II) arises
out of a 1970 agreement between Homestake and Enerdyne Corporation
(Enerdyne) whereby Homestake became the assignee of most of
Enerdyne's interests under, and the lessee of, certain unpatented
mining claims concerning uranium properties located in New Mexico.
In September 1977, Homestake filed Homestake II in the District of
New Mexico against Enerdyne, seeking a declaration that Homestake's
obligations under that agreement had been fully satisfied. Shortly5/
thereafter, Enerdyne filed its answer and counterclaims. The
counterclaims assert certain breaches of implied covenants,
3/ The Panel also found that inclusion of Rio Algom in MDL~-235
was inappropriate, In re Westinghouse Electric Corpcration
Uranium Contracts Liflcation, 436 F. Supp. 990, 994-96 (J.P.M.L.
1977).
4/ See further discussion of why Homestake I was not included
in MDL-235 at pages 13-14, supra.
C 5/ Although Enerdyne's pleading is captioned as a "counter-	claim," Enerdyne itself acknowledges in its papers before the
Panel that its "counterclaim" actually raises numerous counter-
claims.

| Case MDL No. 342 Document2 Filed 05/05/15 Page 12 of 21 . .- 6 -
conditions and duties under the 1970 agreement; NR
by Homestake; lack of good faith, fraud and deceit; constructive
fraud; or breach of fiduciary duty. One of Enerdyne's counterclaims
alsc alleges that Homestake conspired with "other uranium producers,"
in violation of the federal antitrust laws and the antitrust
laws of New Mexico, to restrain trade and commerce in uranium.
Enerdyne claims that this alleged conspiracy lead Homestake
to breach its contractual commitments tO Enerdyne.8/
On September 8, 1973, the district court ordered that all dis-
covery in this action must be completed on or before March 1, 1979.
Homestake and Enerdyne have both represented to the Panel,
however, that only minimal discovery concerning the antitrust ~
counterclaim	has yet occurred in Homestake II. No trial
date has yet been established in this action.
7 Fherdyne 's antitrust counterclaim is stated in §§15,
30 and 21 of its "first amended counterclaim," as follows:
15. At times acting independently and at times
acting in concert, collusion, and conspiracy with other
uranium producers, Homestake had deliberately refused
to proceed diligently to develop and mine the subject
properties, in an effort to withhold uranium from the
market and drive up its prices.
20. Homestake has used the Homestake agreement
to withhold and delay production of uranium, in violation
of §§49-1-2, and 49-1-3, N.M.S.A. (1953 Comp.) [The
New Mexico Antitrust Laws].
21. Homestake has used the Homestake agreement
to withhold and delay production of uranium, in violation
of 15 U.S.C. §1, 15 U.S.C. §2, and 15 U.S.C. §3.

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® II. PROCEEDINGS BEFORE THE PANEL
Homestake has moved the Panel, pursuant to 28 U.S.C.
§1407, to transfer the antitrust counterclaim in Homestake
II to the Northern District of Illinois for coordinated
or consolidated pretrial proceedings with the four actions
already pending there. Enerdyne and Westinghouse oppose
this motion. No other parties have responded to Homestake's
motion.
III. DECISION OF THE PANEL
We find that the antitrust counterclaim in Homestake
II shares questions of fact with the four actions in the trans-
feree district and that inclusion of that counterclaim in
¢ the Section 1407 proceedings pending there will serve theconvenience of the parties and witnesses and promote the
just and efficient conduct of the litigation.
Enerdyne contends that the legal and factual issues
in Homestake II all arise from the contractual relationship
between Homestake and Enerdyne. Each of these issues relates
to 1) the negotiations between Enerdyne and Homestake which
resulted in the execution of the 1970 agreement between
those parties; 2) the nature of the duties imposed upon
Homestake by that agreement; and 3) the reasons for the
alleged breach by Homestake of its duties under the agreement,
Enerdyne asserts. Enerdyne contends that its antitrust
counterclaim falls into the last of these categories, because
o the activities alleged in that counterclaim tend to show

Case MDL No. 342 Document 2 Filed 05/05/15 Page 14 of 21 . .
why Homestake failed to produce uranium from the mining C
properties covered by the 1970 agreement. While the antitrust
counterclaim may share some questions of fact with the actions
in the transferee district, Enerdyne argues, that counterclaim
is merely one element in a complex contractual dispute whose
resolution will turn primarily upon New Mexico state law
dealing with mining obligations and the interpretation of
contracts. Enerdyne maintains that its antitrust counterclaim
can be most easily understood and most efficiently litigated
in the context of that particular contractual dispute.
Westinghouse agrees with Enerdyne that Homestake II
basically involves a contractual dispute between Homestake
and Enerdyne. Westinghouse further argues that its interpre- 9tation of the allegations of the antitrust counterclaim
and discovery to date in Homestake II "indicate[s] that
any conspiracy alleged therein is substantially and factually
: distinct from that alleged in either [Rio Algom] or the
TVA actions....'" Westinghouse points out that the properties
subject to the 1970 agreement between Homestake and Enerdyne
are located solely in New Mexico, and that the conspiracy
involved in the actions in the transferee district allegedly
began in 1972, two years after the agreement between Homestake
and Enerdyne was entered into. Westinghouse thus asserts
that discovery in the transferee district concerning an
alleged antitrust conspiracy will involve a plethora of
factual questions not raised by Enerdyne's antitrust counter- Cclaim, and that discovery on these issues in the transferee

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C district will dwarf any possible discovery in Homestake II.
Westinghouse also objects to the inclusion of Enerdyne's
antitrust counterclaim in the coordinated or consolidated
pretrial proceedings pending in Chicago on the grounds that
such a transfer would complicate and delay both
Homestake II and those coordinated pretrial proceedings.
: Westinghouse points out that the antitrust counterclaim,
unlike Rio Algom or the TVA actions, involves claims under
Section 2 of the Sherman Act, and contends that therefore
discovery proceedings concerning that counterclaim will
involve numerous unique factual inquiries. In addition, |
Westinghouse maintains that bifurcating Homestake II by trans-
( ferring the antitrust counterclaim to Chicago and leaving the— rest of that action in New Mexico is an inefficient manner by
which to process that action. To the extent that discovery
in Homestake II and the coordinated proceedings may overlap,
Westinghouse suggests that, inter alia, voluntary cooperation
among the parties would be sufficient to accomplish the
goals of Section 1407 transfer.
Finally, both Westinghouse and Enerdyne claim that
the Panel's determination that Homestake I should not be
included in MDL=-235, In re Westinchouse Electric Corroration
Uranium Contract Litigation, supra, 436 F. Supp. at 495, serves
as a precedent for denying Homestake's present motion.
®

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The issues in the antitrust counterclaim in Homestake II are C
"basically unique" to the contractual relationship between
Homestake and Enerdyne, Enerdyne and Westinghouse argue, and
that counterclaim should not be included in the coordinated
pretrial proceedings in the transferee district merelv because
"of a surface similarity presented by one element of a compli-
cated local contract dispute.”
We find these arguments unconvincing. While the bare alle-
gations of Enerdyne's antitrust counterclaim are not as detailed
as the allegations of the complaints in Rio Algom or the TVA
actions, the record before us amply demonstrates that the antitrust
counterclaim in Homestake II and the actions already in the trans-
feree district share numerous complex factual questions TREE)whether there was a conspiracy in the uranium industry; and if a
there was, whether Homestake participated in the conspiracy; what
the purposes of the conspiracy were; and what the actual effects
of the conspiracy were. For example, at a deposition conducted
in Homestake II, counsel for Enerdyne explained the relevance
of a particular question as follcws:
The allegations in the Chicago action allege certain
violations of the United States Antitrust Laws and
claim that Homestake did conspire with other uranium
companies to violate those laws. We have similiar
allegations against Homestake in this action.
And in responding to an interrogatory propounded by Homestake,
Enerdyne stated:
Enerdyne believes the decision by Homestake to restrict
the production of uranium from the subject properties
was made as part of a conspiracy with Uranex, a foreign C	cartel company [which is named as a defendant in one
of the TVA actions and as a co-conspirator in the remaining
two TVA actions and Rio Algom] and perhaps other companies.
Also see Transcript at 3-3.

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In addition, it is clear that Enexdyne's allegations in the
antitrust counterclaim that "Homestake had deliberately refused
to proceed diligently to develop and mine the subject properties,
in an effort to withhold uranium from the market and drive up its
prices" directly parallels factual issues already raised in the
transferee district. In a recent opinion, the Court of
Appeals for the Seventh Circuit reversed a decision of the .
transferee judge in which the judge had refused to disqualify
a law firm that represented one of the defendants in the
transferee district. The Seventh Circuit held in part as
follows:
The lower court erred...in identifying the issues
TN raised by an allegation of price fixing.... The lowercourt found that the 'heart of the [Westinghouse] complaint
is directed at alleged price-fixing arrangements.’
448 F. Supp. at 1312. However, an agreement to restrict
the production of uranium unquestionably is a price :
fixing arrangement. 'Price fixing' is a characterization
which extends to all conspiracies designed to manipulate
the price of goods. [Citations omitted]. In fact,
all serious attempts to establish a supracompetitive
price must necessarily include an agreement to restrict
output. Otherwise the monopoly price could never be
maintained. Thus, the lower court's view that conspiracy
to fix prices and conspiracy to restrict output are
distinct offenses is in error. The lower court's reliance
on the fact that the complaint contains only a 'few
scanty references to the alleged conspiratorial control
of uranium production’ is misplaced.5/ 448 F. Supp.
at 1312. Westinghouse's general allegation of price
fixing is sufficient to make evidence tending to establish
a conspiracy to restrict uranium production relevant
to the litigation. -
2/ The district court cites only a portion of the
complaint's references to the constraint issue, e.g2.,
paragraphs 36, 39(b) and 46. The complaint... also
® raises the issue twice in the introduction as well	as paragraphs 41(d), 43 and 55(a). Further, Westinghouse
continued to raise supply curtailment issues in the
course of the litigation in its answer to interrogatories.

Case MDL No. 342 Document 2 Filed 05/05/15 Page 18 of 21 . .
oo ®
Westinghouse Electric Corporation v. Gulf 0il Corporation,
558 F.2d 221, 226 (7th Cir. 1978).
We acknowledge that Homestake II concerns in great
part a contractual dispute between Homestake and Enerdyne,.
Nevertheless, we agree with Homestake, the movant before us,
that Enerdyne's antitrust counterclaim should	be severed
from the remaining claims and counterclaims in Homestake
II and transferred to the Northern District of Illinois.
In fact, even Enerdyne states in its papers before the Panel
that "[i]f transfer is deemed necessary... because of common
antitrust issues, the antitrust claims can and should be ro
severed from the other claims stated by the counterclaim." =
Thus, we are of the view that transfer of only the antitrust
counterclaim
is necessary to prevent duplicative discovery, eliminate
any possibility of conflicting pretrial rulings and
conserve time and effort for the parties, the witnesses
and the judiciary. Discovery on any issues unique
to any action, group of actions or party may be scheduled
by the transferee judge to proceed in a separate discovery
schedule concurrently with discovery on common issues.
See In re Corrugated Container Antitrust Litigation,
447 F. Supp. 75% 477 (J. P.M.L. 19787.
In reUranium Industy Antitrust Litigation, supra, 458 F.
Supp. at 1229.

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C Inclusion at this time of the antitrust counterclaim
in the Section 1407 proceedings now being conducted in the
transferee district is particularly appropriate because Judge
Marshall has already had an opportunity to become uniquely
acquainted with all facets of the discovery and other pretrial
proceedings concerning the alleged uranium conspiracy. We
are confident that Judge Marshall, with the assistance and
cooperation of the parties and counsel, will be able smoothly
to integrate Enerdyne's antitrust counterclaim into the
pretrial proceedings in the transferee district. See id.
at 1231-32; Manual for Complex Litigation, Parts I & II,
§§3.11 (rev. ed. 1977). Moreover, this result is manifestly
Qe ‘preferable to Westinghouse's suggested alternative of volun-tary cooperation among the parties.l/ Should the antitrust
counterclaim become ready for trial or otherwise ready for
remand because the. transferee judge finds that the Section
1407 proceedings pertaining to the counterclaim are completed,
the transferee judge may suggest to the Panel that the Panel |
remand the counterclaim to its transferor court. 28 U.S.C.
§1407 (a); Rule 11(c)(ii), R.P.J.P.M.L., 78 F.R.D. 561, 569
(1978). See, e.g., In re A. H. Robins Co., Inc. ''Dalkon
Shield" IUD Products Liability Litigation, 453 F. Supp. 108
(J.P.M.L. 1978).
77	We note that neither Homestake nor Enerdyne has urged
That voluntary cooperation is a suitable alternative to
o Section 1407 transfer.

Case MDL No. 342 Document 2) fled 05/05/15 Page 20 of 21 ) :
| ®
We discern no inconsistency between our determination
concerning the antitrust counterclaim in Homestake II and
our earlier decision not to include Homestake I in MDL-235.
In our MDL-235 decision, we declined to transfer either
Rio Algom or Homestake I to the Eastern District of Virginia,
even though both of those actions raised issues concerning
an alleged conspiracy in the uranium industry. In re Westing-
house Electric Corporation Uranium Contract Litigation,
supra, 436 F. Supp. at 992-93, 995. In denying transfer
of Rio Algom, for example, we recognized that ''the allegations
of a price-fixing and market manipulation conspiracy in
Rio Algom and the actions in MDL-235 involve common questions
of fact," but we held that "on the basis of the record before y
us we are not convinced that these conspiracy issues predominate
over the contractual issues that form the basis of MDL-235."
Id. at 995. The primary reason for our decision not to
include either Rio Algom or Homestake I in MDL-235, however,
was that, unlike those two actions, trial was imminent in
the actions in MDL-235,8/ and we therefore found that "the
purposes of Section 1407 [could] best be achieved by allowing
the actions in MDL-235 to be left alone. [Citation omitted.]"
8/7 OnOctober 27, 1978, the transferee judge in MDL-235
found, after a trial limited to issues of liability, that
Westinghouse had wrongfully breached its contracts with
some of the utility plaintiffs.
@

, . Case MDL No. 342 Docugent2 Filed 05/05/15 Page 21 of 21
® Id. at 996. That situation is far removed from the one
now before us, where trial for any action that will be
tried in the Northern District of Illinois is not presently
scheduled to commence until September 1980. Finally, as
we have already stated, in the present litigation, unlike
MDL-235, the common core of factual issues springs from
the alleged existence of a conspiracy in the uranium industry,
and we are transferring to the Northern District of Illinois only
that portion of Homestake II which raises these common questions
of fact.
IT IS THEREFORE ORDERED that, pursuant to 28 U.S.C.
§1407, the action captioned Homestake Mining Corp. v. Enerdyne
Corp., D. New Mexico, C.A. No. 77-609 P, be, and the same
Qe hereby is, transferred to the Northern District of Illinois
| and, with ‘the consent of that court, assigned to the Honorable
Prentice H. Marshall for coordinated or consolidated pretrial
proceedings with the actions already pending there.
IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. §1407(a),
all claims and counterclaims in this action except the antitrust
counterclaim be, and the same hereby are, separated and
remanded to the District of New Mexico for further proceedings.
®