IN RE: Multidistrict Private Civil Treble Damage Litigation Involving Library Editions of Children's Books

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THE JUDICIAL PANEL OCT 17 1968
ON
MULTIDISTRICT LITIGATION JUDICIAL PANEL FOR	MULTIDISTRIGH, LITISATIO
PER gars
PROYISIONAL €
DOCKET NO. 2
IN RE MULTIDISTRICT PRIVATE CIVIL TREBLE DAMAGE ) DOCKET NO. 4
LITIGATION INVOLVING LIBRARY EDITIONS OF CHILDREN'S) DOCKET NO. 5
BOOKS ) DOCKET NO. 6
DOCKET NO. 7
OPINION AND ORDER TRANSFERRING CIVIL ACTIONS
UNDER SECTION 1407, TITLE 28, UNITED STATES CODE,
TO THE NORTHERN DISTRICT OF ILLINOIS
BEFORE ALFRED P. MURRAH AND JOHN MINOR WISDOM, CIRCUIT JUDGES, AND EDWARD
WEINFELD, EDWIN A. ROBSON, WILLIAM H. BECKER, JOSEPH S. LORD, III, AND
STANLEY A. WEIGEL, DISTRICT JUDGES
JOHN MINOR WISDOM, CIRCUIT JUDGE
Pending in eight United States district courts are twenty-one private
antitrust treble damage suits filed by certain states, counties, and cities
against major publishers and wholesalers of library editions of children's
books. See Schedule A. August 8, 1968, the Judicial Panel on Multidistrict
Litigation heard Motions to Transfer these cases to a single district court
So (the Southern District of New York or the Northern District of California or
the Northern District of Illinois) for pretrial proceedings under 28 U.S.C.
“ '§1407. We hold that the coordination and consolidation of the pretrial pro-
_ ceedings in all of these cases and the transfer to the Northern district of
_ Illinois, Eastern Division (Chicago), of the cases not pending in that
district will best serve the convenience of the parties and witnesses, and
best promote the just and efficient conduct of the litigation.

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I.
The California plaintiffs oppose any transfer
on the ground that the policy contained in Section 1407
will not be effectuated by a transfer. They point out that
the law establishes only two standards: (1) the "conven-
ience of parties and witnesses" and (2) the promotion of
"the just and efficient conduct of such actions". They
argue, therefore, that the convenience of counsel, the
accessibility of the proposed transferee district, and the
location of a defendant's principal place of business are
not recognized in Section 1407 as standards in determining
whether a transfer should be made. Affirmatively, they
contend that plaintiffs of limited means should not be
compelled to travel to a distant forum, especially in this
type of litigation, since "Congress has expressed its belief
that private antitrust litigation is one of the surest
weapons for effective enforcement of the antitrust laws”.
Minnesota Mining and Manufacturing Co. v. New Jersey Wood
Finishing Co., 1965, 381 U.S. 311, 318, 85 s.Cct. 1473, 14
L.Ed.	24 405.
This is a worm's eye view of Section 1407. Of
course it is to the interest of each plaintiff to have all
of the proceedings in his suit handled in his district.
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But the Panel must weigh the interests of all the plaintiffs
and all the defendants, and must consider multiple litigation
as a whole in the light of the purposes of the law.
Here we have complex multidistrict litigation
involving a large number of parties in widely separated
areas. The actions involve common questions of fact. The
complaints are substantially similar. Indeed, all of the
complaints rely, in large part, on the Government's alle-
gations in eighteen civil antitrust actions against certain
publishers, all defendants in the cases now being considered
by the Panel.
All parties, except the defendant wholesalers,
were on record before the Coordinating Committee for Multi-
district Litigation of the United States District Courts as
favoring, in one form or another, a coordinated national
discovery program. That Committee recommended a form of
"National Pretrial Order No. 1" for entry in each of the cases,
and the order has now been entered in five of the eight juris-
dictions where the cases are pending. Congress adopted the
transfer procedure authorized by Section 1407 for the specific
purpose of superseding the voluntary procedures of the Coordi-
nating Committee. As stated in House Report No. 1130, 90th
Cong., 2d Sess., the bill was "drafted by the Coordinating
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Committee" and "based on the experience of the Coordinating Committee
in supervising nationwide discovery proceedings in the electrical
equipment cases which flooded the Federal courts in the early 1960's".
U.S. Code Cong. & Adm. News, 90th Cong., 2d Sess., p. 1051 (No. 4,
June 5, 1968. ''The objective of the legislation is to provide
centralized management under court supervision of pretrial proceedings
of multidistrict litigation to assure the 'just and efficient conduct’
of such actions. The committee believes that the possibility for
conflict and duplication in discovery and other pretrial procedures
in related cases can be avoided or minimized by such centralized
management.'' Id. at 1051. ‘The basic purpose of assigning [multiple
litigation] to a single judge is to provide for uninterrupted judicial
supervision and careful, consistent planning and conduct of pretrial
and trial proceedings' that will eliminate or reduce conflict and
duplication of effort. 'Manual for Complex and Multidistrict
Litigation" (1968) p. 10. This antitrust litigation comes well
within the basic purpose of Section 1407.
II.
To no one's surprise, each of three groups of
litigants advances plausible arguments for the consolidation
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of the cases in the district most convenient to the
members of the group. Here litigation far from home
apparently presented no problem for such diversely located
plaintiffs as the State of Alaska, the City of Los Ange-
les, the City of Hastings, Minnesota and the City of
Tampa, Florida, all of which chose to intervene as plaintiffs
in the case pending in Philadelphia, and the cities of
Baltimore, Maryland and Richmond, Virginia, which chose
to bring their suits in San Francisco.
(1) Sixteen of the publisher-defendants con-
tend that the appropriate transferee district is the
Southern District of New York. They point out that New
York City is the heart of the publishing industry; that
their principal offices are in New York; that, therefore,
their general counsel, sales records, and personnel are
all available in the Southern District of New York.
(2) The California plaintiffs object to trans-
ferring any of the cases. If the cases are to be consolidated
in a single court, they contend that the transferee court
should be the District Court for the Northern District of
California, where 11 of the 21 cases are now pending. They
say that the calendars in the Southern District of New York
and the Northern District of Illinois are severely congested;
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that expedient handling of this litigation will be served
by keeping it in the forum where West Coast counsel have
already been working together on an agreed course of pretrial
and discovery matters not covered by the national discovery
program.
(3) The Panel recognizes the weight of the
arguments advanced by the various groups of litigants,
but holds that the jurisdiction best suited for coordination
and consolidation of the cases is the Northern District of
Illinois, Eastern Division (Chicago). A number of reasons
support this conclusion. The United States filed its seminal
antitrust actions in that district and of course, the grand
jury documents relating to the actions are in Chicago.
Many of the plaintiffs in the instant cases sought to inter-
vene in the Government's cases; many applied to the district
court for release of documents subpoenaed in connection with
the grand jury's investigation before the Government filed
suit.
The Coordinating Committee recognized that the
litigation's center of gravity was Chicago. National Pre-
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trial Order No. 1 provides for a centrally located docu-
mentary depository in Chicago. Now pending in the Northern
District of Illinois are two cases involving all eighteen
publishers as defendants and almost all of the wholesalers
who are defendants in various of such cases. State of
Illinois, et al v. Harper & Row Publishers, Inc., et al,
No. 67 C 1899; State of West Virginia, et al. v. Harper &
Row Publishers, Inc., et al., No. 67 C 1906. Since the
filing of the transfer motion, additional wholesalers have
been made defendants in the two Chicago cases, and now all
but one of the wholesalers who have been sued in any of
the twenty-one cases are defendants in one or both of the
Chicago cases. In no other jurisdiction is there such a
concentration of wholesaler-defendants. The statistical
evidence of congestion in the three proposed transferee
districts is not conclusive. The statistics show, however,
that the time interval from issue to trial, for civil cases
in which a trial was completed during the. fiscal year ended
June 30, 1967, was substantially less in the Northern District
of Illinois than in either the Southern District of New York
or the Northern District of California. Annual Report of
the Director of the Administrative Office of the United States
Courts (1967). In any event, delays caused by calendar con-
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gestion may be avoided by the appointment of a judge for all
purposes within the district or by the appointment of another
judge from outside the district in accordance with Section 1407(b).
Finally, we note that although air travel renders both California
and New York readily accessible, there is still something to be
said for the convenience of a geographically central forum in
coast-to-coast litigation.
IT IS THEREFORE ORDERED that the Motion to Transfer to
the Northern District of Illinois the antitrust actions against
the defendants pending in districts other than the Northern
District of Illinois be, and it is hereby, granted for the purpose
of coordinating and consolidating pretrial proceedings in those
cases with the similar actions pending in that district. All other
motions are denied. It is further ORDERED that the antitrust
actions, listed in Appendix A, pending in districts other than
the Northern District of Illinois be, and they are hereby, trans-
ferred under Section 1407 of Title 28, United States Code, to the
Northern District of Illinois, and assigned to the Honorable Bernard
M. Decker with the consent in writing of the transferee court.
FOR THE PANEL:
0,	Winn DiskoJohn Minor Wisdom

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: DOCKET NO. 2 |
DOCKET NO. &
DOCKET NO. 5
DOCKET NO. 6
SCHEDULE A
NORTHERN DISTRICT OF ILLINOIS
1. State of Illinois, et al. v. Harper & Row
Publishers, Inc., et al. Civil Action No. 67 C 1899
2, State of West Virginia, et al. v. Harper
& Row Publishers, Inc., et al. Civil Action No. 67 C 1906
DISTRICT OF KANSAS
3, State, ex rel. Londerholm, et al. wv.
Harper & Row Publishers, Inc.,
et al. Civil Action No. T-4370
DISTRICT OF MINNESOTA
4, City of St. Paul v. Harper & Row
Publishers, Inc., et al. Civil Action No. 3-68-124
5. State of Minnesota v. Harper & Row
~ Publishers, Inc., et al. Civil Action No. 3-68-156
WESTERN DISTRICT OF WISCONSIN
6. State of Wisconsin v. Harper & Row
Publishers, Inc., et al. Civil Action No. 67 C 157
NORTHERN DISTRICT OF CALIFORNIA
7. State of Washington v. Harper & Row
Publishers, Inc., et al. Civil Action No. 47716
8. State of Hawaii v. Harper & Row
Publishers, Inc., et al. Civil Action No. 47717
9, City and County of San Francisco,
et al. v. Harper & Row Publishers,
Inc., et al. Civil Action No. 47726

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NORTHERN DISTRICT OF CALIFORNIA (CONTINUED)
10. City of San Diego v. Harper & Row
Publishers, Inc., et al. Civil Action No. 47727
11. State of Oregon v. Harper & Row
Publishers, Inc., et al. Civil Action No. 47838
12. The Mayor and City Council of Baltimore
v. Harper & Row Publishers, Inc.,
et al. Civil Action No. 48199
13. (city of Richmond, et al. v. Harper & Row
Publishers, Inc., et al. Civil Action No. 48894
14. San Diego Unified School District v.
Harper & Row Publishers, Inc., et al. Civil Action No. 49290
15. County of San Diego v. Harper & Row
Publishers, Inc., et al. Civil Action No. 49211
16. State of New Mexico, et al. v. Harper
& Row Publishers, Inc., et al. Civil Action No. 49357
17. Baltimore County, Maryland v. Harper
& Row Publishers, Inc., et al. Civil Action No. 49386
DISTRICT OF MASSACHUSETTS
18. City of Boston v. Harper & Row
Publishers, Inc., et al. Civil Action No. 67-492-C
19. Commonwealth of Massachusetts, et al.
v. Harper & Row Publishers, Inc.,
et al. Civil Action No. 67-764-C
SOUTHERN DISTRICT OF NEW YORK
20. City of New York, et al. v. Harper
& Row Publishers, Inc., et al. Civil Action No. 68-319
EASTERN DISTRICT OF PENNSYLVANIA
21. School District of Philadelphia, et al.
v. Harper & Row Publishers, Inc.,
et al, Civil Action No. 40537