IN RE: Plumbing Fixture Antitrust Litigation

J TF 1
Co ) - Case MDL No.3 Document 2 Filed 04/27/15 Page 1 of 42
@ . | |
: IN BRT PLUMBING FIXTURE CASES a3
Cite as 205 F.Supp. 32 (1963)
: ant to Panel order on the joint motion )
i * : in re PLUMBING FIXTURE CASES, of eight defendants in 39 treble damage
: actions pending in 8 different United
‘ No. 3. States district courts to transfer these
Co . Ce actions “to one United States district
’ : Judicial Panel on Multidistrict court for the purpose of coordinating
Litigation. or - consolidating pretrial proceedings }
Sept, 13, 1958. # # %7 ynder Section 1407, Title 28,
} United States Code. The motion fur-
ther requested that “the Western Dis- i
The Judicial Panel on Multidistrict trict of Pennsylvania be designated as
Litigation, Alfred P. Murrah, Chair- ip, transferee district court * # +7
man, transferred multidistrict plumb- A gchedule of the actions affected by
ing fixture private antitrust cases for ine motion is attached hereto and mark-
coordinated pretrial proceedings 10 od Schedule A. - The order setting the
Eastern District of Pennsylvania, where patter for hearing provided that the
two cases in that district were fairly panel would also consider on its own
representative of litigation and judge of initiative transfer of these actions to a :
that district had actively conducted pre- gistrict court other than the Western SH
trial proceedings and had adopted com- pDigtrict of Pennsylvania. LQ: : prehensive discovery schedule and as re- S
® sult of intervention the two actions in The 39 actions are based upon two al-	that district involved more claims for leged criminal conspiracies charged in
relief than were involved in any other {wo separate indictments (Nos. 66-295
district. : and (6-296) returned in the Western
Order accordingly District of Pennsylvania. In each of i: the actions, damages are claimed to have i
resulted from alleged antitrust viola- :
tions in the manufacture and sale of
Courts ¢2277.2 certain plumbing fixtures.
oy ivi! yr
Federal Civil Procedure ¢=9 Two of the civil actions (Nos. 41773
Multidistrict plumbing fixture ori- and 41774) arc pending in the Eastern
vate antitrust cases were transferred District of Pennsylvania before the
for coordinated or consclidated pretrial "Honorable John W. Lord, Jr. These two
proceedings to Mastern District of Pern- . . , -
LL. . CT 2. cases are based in part upon both of
syivania, where two cases in that dis- | . eo.
triet were fairly representative of litiza- nC alleged criminal conspiracies in the	v Y 1 © © © r . te su . . -
tion and judge of that district had ac- v estern District of Pennsylvania and
tively conducted pretrial proceedings #T€ fairly representative of the litiga- |	and had adopted comprehensive discov- tion. Judge Lord has actively conducted
ery schedule and as result of interven- pretrial proceedings in these cases and |	| tion the two actions in that district in- has adopted a comprehensive discovery
volved move claims for relief than weve Schedule. As a result of intervention |	involved in any other district. 28 U.S. the two actions in the Eastern District
C.AL § 1407. of Pennsylvania now involve more i
claims for relief than are involved in
—— any other district. |
® MEMORANDUM AND ORDER After hearing argument of counsel, i_— . . and considering all relevant factors, the iALFRED P. MURRAIL, Chairman. Panel is of the opinion that because of i
This matter came on for consideration the commonality of many of the princi- i
oi the 8th day of August, 1968, pursu- pal factual issues, the geographical ac- :295 F.Supp. ~3 3
5

Case MDL No. 3 Document 2 Filed 04/27/15 Page 2 of 42
g . . N —	3 He
‘ ’ i 34 © 295 FEDERAL SUPPLEMENT	3 o < or
1 @ cessinility of Philadelphia to Pittsburgh questions of fact common to the 38 ac._ : where the criminal proceedings are iions on economic, iechnical and con-
pending, the relatively advanced discov- spivatorial issues. The civil actions
: ery in the Fasicern District of Penmsyl- pending in the Eastern District of
; vaniaz and the availability there of an Pennsylvania involve alleged conspiva- h
’ experienced Judge well acquainted with cles based upon both indictments in the
the Ritigation, it would best serve the Western District of Pennsylvania, and it
. + convenience of the parties and witness therefore seems appropriate to transfer
o : es, and promote the just and efficient oll the cases to the Eastern District of
4 : conduct of the affected cases to irans- Pennsylvania, leaving to the transferee
J fer the 37 affecled actions pending in judge the sole power to determine in his
; ) ’ other districts to the Eastern District of discretion the order and procedures for
Pennsylvania and to the Honorable John conducting separate pretrial procedures !
W. Lerd, Jr, for all pretrial proceedings in respect to the separate alleged con-
under Section 1407, Title 28, United spiracies.
. States Code. The transferee court,
through Chief Judge Thomas J. Clary, For the foregoing reasons, the motion . |
: ~ has consented to the transfer of all to transfer the subject cases to one dis- !
these cases to the Eastern District of iriet for coordinated pretrial proceed- ;
© I ATT: POS 1 3 Te - . ; . |
Pennsylvania. Judge Lord is able and ings will be granted. But insofar as the i
willing to undertake and cooordinate motion requests that the Western Dis-	: tri roceedings in these 39 eases. : . Cos s
pretrial proceedings in these 39 cases trict of Pennsylvania be designated zs |
Seven of the defendants, referred to the transferee court, it will be denied. |
as the “short-line” defendants in some Instead, on the initiative of the Panel |
of these cases including the two cases and on oral motion of counsel for the
pending in the Eastern District of Penn- parties in some of the cases, all of the
® sylvania, object to the consolidated dis- cases involved here will be transferred	covery proceedings on the grounds that to the Eastern District of Pennsylvania.
the civil actions are based upon two sepa- a. CL
. Lo J It is therefore ordered that the joint
rate criminal conspiracies; that the so- A PY Ng. reas 4p . 1... motion of eight defendants be, and it is
called “short-line” defendants are parties . - Lo . .
p LL. . . . hereby, granted insofar as it requests
to only 18 of the 3% civil actions in only : . :
aa . Cn transfer of the 37 civii treble damagefour jurisdictions arising out of con- . . NR
. . eu or qe . actions pending in districts other than
spiracy No. 66-296; that the discovery Cn LL .
. . . "the Eas{ern District of Pennsylvania
is not therefore common to all cases; NT we oy
oan , ee ay (listed in Schedule A attached) to one: and that it would be prejudicial to these 7 LT
. Z . \ NE United States District Court for the
defendants to coordinate the discovery a
. ce ) a purpose of coordinated er consolidated
proceedings with the other cases to Car 2. )
; . pretrial proceedings. It is further
. which they are not parties and have no
interest. The plea is that the cases in- Ordered that the motion be, and it is
volving the so-called “short-line” defend- hereby denied insofar as it requests that
ants should remain in the jurisdictions the Western District of Pennsylvania be
where thev are presently pending. designated as the transferee district
. court. It is further .
it does appear that the actions
against the eight moving defendants Ordered that the 37 treble damage ae-
arise out of a scpavate conspiracy al- tions pending in districts other than the
leged in a separate imdictment. Tul Eastern District of Pennsylvania and |	they ave not anveloted to the aclinns listed in Schedule A hereto atinched be,
q wherein the “short-line” defendants are and they are hereby, transferred on thepartis, In these civil actions there are initiative of the Pane! under Section
i

| oo Case MDLWo. 3 Document2 Filed 04/27/15 Page 3of42
IN RE PLUMBING FIXTURE CASSIS 25 )Cite as 203 EL.8upp. 22 (1603)
1407 of Title 28, United States Code, to to the asters District of Pennaylvanis, '
the Honorable John 1%. Lord, Jr. of the all with the =znsent in writing of the
' Eastern District of Pennsylvania and transferee cou= attached hereto. )
. BE CU
SCHEDULE A
Novthern District of California
Bastland Construction Co. Civil Action
} V. No. 46162 .
American Radiator & Standard Sanitary
Corp., ef al. :
Eastland Construction Co. Civil Action
i . Vv. No, 46183
Crane Co. et al, ii
bl
Volk-McLain Communities, Inc. Civil Action |
v. : No. 46811 : i
: Crane Co., et al. !!	
- - . \ ele SR . |
® Volk-McLain Communities, Inc. Civil Action !v. Ne. 46812 |
American Radiator & Standard Sanitary
i Corp., et al.
i
| Sheldon L. Pollack Corp. Civil Action i
i v, No. 45924 |{ American Radiator & Standard Sanitary
| Corp, et al. }	EH .
1 wi ey . .
: Hadley Cherry, Ine, Civil Action |
| Vv. No, 48371 i| Crane Co., et al.	1
a N So. | . 4
H Hadley Cherry, Inc. Civil Action |
v. No. 48275
I American Radiator & Standard Sanitary i	| Corp., ei al. }
! Paul A. Weisberg Civil Action
| v. Nao. 48763
{ American Radiator & Standard Sanitary	i ..
i Corporation, et al.
;
a “ . . . i
H Abrams Construction Co. ne. Civil Acting i	i - i
; v. Na, 43766 H
i American Radiator & Standard Sanitary :| Corporation, et al. H
: David 27. Chelimsky Civt Action 3No game ¥
] Vv. No ATHY i
| American Radiator & Standard Sanitary H
i Corporation, et al, ;

Case MDL No. 3 Document 2 Filed 04/27/15 Page 4 of 42
® 295 PEDLELAL SUTPLEMINT ‘
’ Norihern District of Celifornin—Continued N
. David A. Kohl d/b/a David A. Kon! Con- Civil Action
’ struction Co. No. 48768
: ‘ v.
. American Radiator & Standard Sanitary ’
3 ’ : Corporation, et ah
Arthur B. Joss and Jerome G. boss Civil Action
. : v, Ne. 48749
American Radiator & Standard Sanitary
Corporation, et al.
Seacrest Co, a Partnership Civil Action
\ v. No. 48770 :
: Crane Co. et al.
Seacrest Co, a Partnership Civil Action
Y. No. 48771 bo
American Radiator & Standard Sanitary
: Corporation, et al. i
: i
Security Builders, a limited partnership Civil Action :
. : v. No. 48772 i
American Radiator & Standard Sanitary :
Corporation, et al. :
@ © Stabler Construction Co., Inc. Civil Action }v. No. 48773
American Radiator & Standard Sanitary
Corporation, et al. i
o « 1
R. A. Wait Company, Inc. Civil Action He
v. No. 48774
i American Radiator & Standard Sanitary	Corporation, et al.
R. A. Watt Company, Inc. Civil Action
v. No. 48775
Crane Co., et al. :
David 3. Chelimsky Civil Action
v, No. 43301
Crane Co. et al.
Abrams Construction Co., Inc. Civil Action
| v. : No. 48802 }
i Crane Co. et al. i§
i
i David A. Kohl d/b/a David A. Kohl Con- Civil Action
EH struetion Co. No. 48803 ]
| v. : : ]
Crane Co, ot al. !i
Arthur B. Moss and Jerome G. Moss Civil Action i
( § v. No. 48804 t
| CraneCo.,elal. i¥
3

i Case MDL No. 3 Document 2 Filed 04/27/15 Page 5 of
3 3 ¢
: . IN RE PLUZIBING PIXTURT CAIZ3 37 NCite as 265 F.Supp. 35 (1258)	“
BY
i Northern District of LCaliforniz—Co-<nued
: | Stabler Construction Co., Ine. civil Aetion
: Vv. No. 48305
’ ’ Crane Co. et al, .
Paul A. Weisberg <ivil Action
. v. No. 43806
Crane Co., et al.
The State of Californiz and the Regents Civil Action
of the University of California No. 48594 :
Y. :
1 American Radiator & Standard Sanitary
} Corporation, et al.
The State of Illinois, its Departments, Di- Civil Action ;
visions, Agenciss and Political Subdivi- No. 48004 |
i sions |	+ Vv. .
| American Radiator & Standard Sanitary |
® Corporation, et al, |
The State of West Virginia Civil Action
v. No. 49003
American Radiator & Standard Sanitary
Corporation, et al.
Millagee Investment Co., Inc. Civil Action i
v. No. 49383
American Radiator & Standard Sanitary
Corporation, et al,
So EasternDistrictofPennsylvaria |	The Philadelphia Housing Authority Civil Action
7. No. 41772
American Radiator & Standard SanitaryCorporation, et al.
: Lindy Bros. Builders, Inc. et al. Jivil Action
7. . No. 41774
American Radiator & Standard Saultary iCorporation, at al. :
Western Disteict of Pennsylvar,: = |Montefiore Hosnital Tivil Action i
® Vv. No. 87-1315 HAmerican Radiator & Standard Sanitary i	. , - =
Corporation, et al. - i	} 2
* A eriainal and a evil action instituted by the Units $:3:a5 are glen ponding: :	in the Western District of Pevnsylvaniu: Criminal Ao = No. 03-295 and Civil y
Aetion No. LO-11%4, !

ase MDL Wo. 3 Document 2 Filed 04/27/15 Page 6 of 42
: = 35 go FPODERAL SUPPLIMEBHT
Digtrict of Columbin
- Federal West Joint Venture Limited Part- Civil Action
; nership No. 2812-67
A v. “American Standard, Inc, ef al,
Worlhern IMstrict of Hiinols {Enstern Tiivision)
S. Harvey Klein, Trustee in Barkruptey 88 Civil Action
tor Sumner Sollett Company, Bank- No, 77 N
rupt
v.
American Standard Inc. et al.
Edward Limperis, Trustee in Bankruptey $8 Civil Action
for Dover Construction Company, et al. No. 18
v. i
Americen Radiator & Standard Sanitary
Corp. et al. |
S. Rarvey Klein, Trustee in Bankruptey Bh Civil Action !
for Foremosi Home Tmprovements, Tne, Mo. 74
Bankrupt |
® : |American Radiator & Standard Sanitary
© Corp, et al.
Southern District of New York
The State of New York 88 Civil Action |v. No. Z036
American Radiator & Standard Sanitary
Corp., eb al. :
| Wew York State Thruway Authority 88 Civil Action| v. No. 2057	i Americen Radiator & Stonderd Sanitary
Corporation, et al.
: Western District of Washington
State of Washington Civil Action
Vv. Wo. 7748
American Radiator & Standard Sanitary
Corporation, et al.
District of inneseta (Fourth Bivision)
The State of Minnescia Civil Action
v. No, 4-68-181 i. . i
American Standard Ine, et al {§

. a ~ N EAE CA	TENT ¢ FIL.IRRVETS, :
I | creahing Renmei, Eres ness	| o MBING FIXTURE CASES. erred for pretrial proceedings pursuant
! No. 3. to 28 U.S.C. § 1407 to the United States
¢ i Judicial Panel on Multidistrict Litigation. or pon ourt for the Eastern District :i 4 | Dec. 26, 1968. of the Chief Judge of that court, assigned
1 - them to the Honorable John W. Loxd, Jr.
: N In re Multidistrict Civil Antitrust Ae-
; ! _ The Judicial Panel on Multidistrict tions Involving Plumbing Fixtures. 295 :
{ ; Litigation transferred three plumbing T.Supp. 33 (Judicial Panel on 3Multidis-
: I fixture private civil antitrust cases for trict Litigation, 1968). .
i . : coordinated or consolidated pretrial pro- ~~ .
1 i ceedings to the Eastern District of Penn- The three cases listed on Schedule C| i sylvania where three cases wore fileq Were filed after the August 8, 1968 hear-
} subsequent to hearing transferring 37 ing and were therefore not included in
. | other cases to the Eastern District of the September 13, 1968 order. On No- -
Pennsylvania and where all defendants vember 18, 1968 we ordered the parties
| urged that cases be 50 transferred and in these three cases to show cause why
: no ny of apteoived from plaintiffs the cases skould not be transferred to the
| | common to each es es presen sere Eastern District of Pennsylvania with- ;
i E present	in actions previously eomolicated out further bearing for the reasons ex- :
for pretrial purposes. pressed in our September 13th memoran-
Order secondo . dum and order. All defendants respond- ;} y- ed to this order and urged that the cases |
. be transferred to the Eastern District of
Courts ¢=277.2 Pennsylvania. No response was received |
| Three plumbing fixture private anti- from any of the plaintiffs; they have |
trust cases which were filed after prior 10 opposed the transfer nor have they |
hearing ordering 37 cases transferred Tequested a hearing. i |
for pretrial proceedings were transferred 1a :
for coordinated or consolidated pretrial Many of the factual issues present in |
C proceedings to the Eastern District of these shree actions are not only common XPennsylvania where all defendants urged por: O1er but are clearly common to Q &> that cases be transferred and where the duestions present in the actions pre- :
: many of factual issues present were viously consolidated for pretrial pur- —r
. common to each other and to questions POSES. We are satisfied that the transfer
present in actions previously consoli- of these thre cases to the Eastern Dis.
dated. 23 U.S.CA § 1407. trict of Pennsylvania will be for con-
venience of parties and witnesses and
will promote the just and efficient con-
Before ALFRED P. MURRAH, Chair- duct of them and he related a et] man and JOHN MINOR WISDOM, ED- in that court SReR $0 or Wnitialy Hid
WARD WEINFELD, EDWIN A. ROR- ~
SON, WILLIAM H. BECKER, JOSEPH IT IS THEREFORE ORDERED that
S. LORD III, and STANLEY A. the treble damage actions listed on
WEIGEL, Judges of the Panel Schedule C be and they are hereby trans-	erred to the Eastern District of Penn-
OPINION AND ORDER sylvania for coordinated or consolidated
PER CURTAIL pretrial Proceedings and with the con-	] sent of that court heretofore fil i
) On September 13, 1968 after notice the Clerk of the Panel, nested to tn |
and hearing, we ordered thirty-seven Honorable John W. Lord, Jr.
| | | SCHEDULE ¢
J .
8 1. Kenneth Q Vom ict of California |	. { and Robe h I i
Radiator & Standard Sanitary ComJmeriean Civil Action 1
2. Kenneth Q. Volk & Robert B. MecLai Co No. 49923ot al ° dicta v. Crane Co, Civil Action
3. Macco Realty Co, v. American Radiat T No. 49929
. Sanitary Corn. et asiean Kadiator & Standard civil Action '

NaN MDL No. 3 Document 2 Filed 04/27/15 Page 8 of 42
J {	- .
fer of action to another court for pretrial .
In re PLIRMBING YIXTURE CASES. proceedings that Panel should use its
No. 3 discretion or should forbear use of its ,
statutory powers on principles of comity,
Judicial Panel on Mulcidistrict Litigation. plaintiff's contention that Panel had no
© Dec. 27, 1968. power to transfer class action issue in-
volved in the action presented questions
. vias. OF construction of statute authorizing
Co The Judicial Panel on Multidistrict transfer. Fed.Rules Civ.Proc. rule 23, 28
Litigation, William H. Becker, Judge of U.S.C.A.; 28 U.S.C.A. § 1407, 1407(a). .i the Panel, transferred without condition . :
to Eastern District of Pennsylvania nine 3, Statutes C2174 :
multidistriet civil treble damage anti- LL. :
Lo. . AAT In construing statutes language
trust actions involving plumbing fixtures should be examined first and if languaee :	. . . cap 5S 2 H be 5
despite contentions by one plaintiff inone | . : Jatlgldse
) . Lo is clear, words plain and meaning clear,
of the actions that conditions should be ER . ; :	. , . . . legislative history need not he resorted to :
imposed that class action questions be |
LL. - for construction. ;
reserved for determination after trans- ;
NJ Lame . N Mer +The i
fex by transferor court and secondly that 4. Federal Civil Procedure €9 :
discovery which had been agreed on or Judicial Panel Aulbidistrict Liti	, . udi a Multidistriet -
which had been ordered by transferor i ad:cra a on su J rigs Laucourt should be completed. gation does not have power ta require So
Ord tinal completion of discovery underway or :	rder accordingly. . .
der aceon n8 y such discovery as parties have agreed to
Edward Weinfeld, Judge of the op which has been ordered by transferor	« M + 5 ~~ . - . .
Panel, dissented in part. court in connection with transferring ac-
® . tion to another district for pretrial pro-	rodaral Civ .. - :
1. ¥ederal civ Procedure G25 as ceedings. Fed.Rules Civ.Proc. rule 23, -
: _, On granting transfer of plumbing pg 1504; 28 US.C.A. §§ 1407, 1407 Esfixture private treble damagz antitrust (a) Ny A:action which had been brought as a class EY. ats YY a Q a7 1 + ” EET :
action, there should not be separation of 5 Federal Civil Procedure 5 ~—
class action issues under reservation to . i ‘	. . Pretrial powers of transferee court
transferor court of power to determine . L i . . i .
X i atter action has heen transferred for pre-
class action issues. . X . . ;	trial proceedings include powers to mod-
2. Courts &%77.2 ify, espand, or vacate eaviier discovery
Absent argument by plaintiff wish- ovders. Fed.Rules Civ.Proc. rule 186, 28
ing to have conditions imposed on frans- TU.S.C.A.; 23 U.S.C.A. § 1407.

Case Ng No. 3 Document 2 Filed 04/27/15 Page 9 of 42
) I :
@ IN RE PLUMBING FIXTURE CASES 485	> Cite as 208 INSunp. 484 (1968)
: G6. Federal Civil Procedure &&9 13. Courts C=275, 279
: Judicial Panel on Multidistrict Liti- In federal civil procedure, claim for
i gation has neither the power nor the dis- relief is irreducible legal unit for pur-
} position to direct transferce judge on poses ef venue and jurisdiction by single h
transfer of action for pretrial proceed- court at a particular time.
i ings in exercise of his powers and discre- 14. Courts C277.1, 277.2
} tion in pretrial proceedings. 28 U.S.C.A. In separation and transfer of claims
Co , § 1407. . : under statutes permitting transfer for
: 7. Courts €=377.2 pretrial proceedings or transfer for other
. . Remedial aim of statute permitting reasons, contemporaneous dual control by :
Cod transfer of action for pretrial proceed- two or more district courts of single
! ings is to eliminate potential for con- claim for relief or separate issues there-
: flicting contemporaneous pretrial rulings of is not permissible in federal sys-
by - coordinate district and appellate tem. 28 U.8.C.A. §§ 14042), 1407.
| courts in multidistrict related civil 2c- 15 courts ¢=277.2 :
, tions. 28 U.S.C.A. § 1407. A transfer under statute permitiing
: 8. Courts S=277.2 transfer for pretrial proceedings is a
It is in field of class action determi- change of venue for pretrial purposes. 28 :
nations in related multidistrict civil ac- TU.S.C.A. § 1407.
; tions that potential for conflicting, dis 15. Courts 277.1
orderly, chaotic judicial action is the On change of venue jurisdiction and |
. greatest. Fed.Rules Civ.Proc. rule 23,28 5uers of transferee court are coexten-
U.S.C.A. ‘ sive with that of transferor court and :
9. Courts S=277.2 transferee court may make any order or
Intent of statute permitting transfer render any judgment that might have |
® of action for pretrial proceedings is to been rendered	by transferor ecurt in ab- |	invest transferee court with exclusive sence of transfer.
: DOwWers, after transfer, to make pretrial 17. Courls €5275.1 |
determinations of class action questions. After an order changing venue, ju-
Fed. Rules Civ.Proc. rule 23, 28 U.S.C.A5 yiagiction of transferor court ceases and |
28 U.S.C.A. § 1407. thereafter transferor court can issue no |16. Couris 2277.2 ) further orders and any steps taken by it
All judicial proceedings before trial, are of no effect. :
. including pretrial determination of class 18. Federal Civil Procedure G9 }
questions, are pretrial proceedings . 28 In regard to class action determina-
U.S.CA. § 1407; FedRules Civ.Proc. yi,.0 mage by transferor court prior to
rule 23, 28 U.S.C.A. transfer under statute permitting trans-
See publication Words and Phrases fer for pretrial proceedings, transferee
for oer Judicial constructions and court may determine class action ques-w ot : : tions and review and revise any class ac- .
. 11. Courts ©2518 tion order as in its sound judicial discre-
"Two courts of exclusive different ju- tion is desirable or necessary in interests
risdictions, or venues, cannoli exercise of justice. 28 U.S.C.A. § 1407; Fed.
control over same single claim for relief Rules Civ.Prec. rule 23, 28 U.S.C.A.
at same time. 28 U.S.C.	A. § 1407. 19, Courts C277.2
12. Federal Civil Procedure ¢=1934 Nine multidistrict plumbing fixture :
Several separate claims for relief in private treble damage antitrust actions £
a single civil action are severable in in- would be transferred without condition 1
terests of justice but a single claim for to Eastern District of Pennsylvania for
relief is separable by issues for trial only pretrial proceedings despite contentions
| if entire zetion and all issues therein re- by one plainiiff in one of the nine ac-® main under control of one court, tions that conditions should be imposed ]#

f oo . + Case MRE No.3 Document 2 Filed 04/27/15 Page 10 of 42
@ ~ 236 298 FEDERAL SUPPLEMENT	{ —- on transfer permitting transferor court the hearing of August 8, 1958. This o.
A to determine class action questions after der further provided for a hearing ¢
transfer and despite request that Panel Qctober 16, 1968, on all matters relatin
} require completion of discovery agreed to (1) the proposed transfer and assign
on or ordered by transferor couri. 28 ment of the additional actions to Judge
. U.S.C.A. §§ 1407, 1407(a, b); Fed.Rules Lord, (2) the transfer of the actions tol
’ Civ.Proc. rales 2, 3, 16, 23, 23(c) (1), 42 another district or districts, and (3) de
CC : (b), 28 U.S.C.A. fendants’ motion to transfer the actions)
3 under Section 1497 to the Western Dis-
i i ’ : trict of Pennsylvania.
Bzfore ALFRED P. MURRAH, Chair- In the written responses to the order:
; man, and JOHN MINOR WISDOM, ED- to show cause and notice of hearing, all |
WARD WEINEELD, EDWIN A. ROB- parties except the City of New York.
SON, WILLIAM H. BECKER, JOSEPH agreed in substance to the proposed|
3. LORD, III, and STANLEY A. WEI- transfer and assignment of the nine ad-
: GEL, Judges of the Panel ditional actions to Judge John VW. Loxd,
’ ’ : Jr., under Section 1407.
OPINION AND ORDER - Tor the reasons hereinafter stated all
tana lic : 1 3 .
WILLIAM H. BECKER, Judge of the actions listed in Schedule B will be trans
Panel ferred on the initiative of the Panel to
oo | the Eastern District of Pennsylvania
After a heuring on August 8, 1988, On and assigned to the Honorable John W.
September 13, 1968, the Judicial T anel on Lord, Jr., District Judge.Blultidistrict Litigation, under Section
: 1407, Title 28, U.S.C, ordered the trans- aye ) .
. . a ERR i” The Position of the City of New York
fer to the astern District of Pennsyl- 7 y of New
® vania of 37 related multidistrict civil The City of New York and its relatedtreble damage antitrust actions, pending agencies (the “City”’) on behalf of them-
in seven other districts, and assigned selves and of a class to consist of all City,
. thera to the Honorable John W. Lord, Jr, twon and school district governmental
District Judge, 295 F.Supp. 33. units in the State of New York having
The actions so transferred included ac- ~ # population In excess of 50,000 persons,
tions orizinally filed in the Northern Dis- 2nd of all public housing authorities in
trict of California, the Southern District the State of New York, filed a civil treble	£ California, he . = th
. : of Now York and the District of Colum- damage antitrust action in the Southern
bid District of New York on August 2, 1968. |: Later the Panel learned of nine addi- By letter of the same date addressad toy
Lo Lo . ye . the Clerk of the Panel, counsel for the
tional similar actions pending in the . . a
Northern District of California, the City requested that it b2 allowed to par-	ther istrict al ia, t CL JOR TC -
astern District of Virginia, the South- Lictpate in the hearing of Auast 8 L955,	oh its eqcp was ar «
ern District of New York, the Rastern CO OUBN 11S Case was [ot among those
| District of Wisconsin, the District of listed in the defendants” motion to trans-	AJISIrIC x S¢ sin ae rict . . .
oo Tm . fer or in the notice and order for the
: Kansas and tha District of Columbia. hear f Au fa
These nine additional actions are listed fanag o ngs -
in the appended Schedule B. At the hearing on August 8, counsel f	. TT or TT ty tl vie waluniarilv ar Ad}
On October §, 1958, in accordance with for the City voluntarily appeared andy
} LT NR stated, “We agree wholeheartedly # 0%
current practice the Panel, on ils initia- OR Ch :
ti : » | an order to show cau why with coordination, and we agree whole- i	ve, nsued an order to show cause wag oe N
{ N oo fee Lo. ei enone neartedly that the proper forum vould be §	the nine additione! similar actions should i AA :
t alu be t erred ler Section Philadelphia, Pennsylvania” in the Bast. |Bor alo be Lransterred unce © ern District of Pennsylvania. §
1407 to the Eastern District of Pennsyl- 7 : v i
vanin and assigred to Judge John W. In its response fo the order to show i
¢ Lord, Jr., on the basis of the record of cause and notice of hearing of October !
:

. 1 . '
| ER ’ Case MDL No. 3 Document 2 Filed 04/27/15 Page 11 of 42
; 4 IU RE PLUMBING FIXTURE CASES 4874. Cite as 205 F.Supp. 454 {1963)
k 16, 1963, the City expressiyv adheres to its In its response and in oral argument
position that the proper forum for trans- counsel for the City state that under Sec-
: . fer under Section 1407 woud be the East- tion 1407(a) “pretrial proceedings do not
3 ern District of Pennsylvar’a but reguest- include a class action determination.”
§ ed that the Panel order :ransfer of its . ] «af .
; ' action subject to the follwing two re- In oral argument the consequences ox
3 ests: © this contention were illuminated by the: : following colloquy with counsel for the
: “First, since the New York City ac- (ity: ’
: . . tion is brought as a cinss action, the “JUDGE WEINFELD: Why do you
court = New York has the following call it a local action? Are you vefer-
oblization under Rule 237) (1) of the ring to the fact that you brought it
Federal Rules of Clvil procedure: As within the Southern District and it in-
soon as practicable amor the com- volves municipalities within the State |
; mencement of an action brought as a of New York and housing authorities |
- class action, the pout seal determine within the State of New York? :	Corder whet) - « fhe i
2 eo “MR. MARGOLIS: What Imeant
mination, the court is required to di- was the eourt where we filed the suit i
rect notice to the members	of the class. should be the one to determine the class
1 We do not believe that under Section action. |- 1407(a) ‘pretrial proce:dings’ encom- - “JUDGE WEINFELD: There are |
pass a class action determination. Cer- housing authorities right adjacent to |
1 tainly	if the entire file is transferred it New York State. You have them in
would be impossible for the transferor ~~ New Jersey, you have them in Connect- |
C } court to discharge its chligations un- icut, you have them in Pennsylvania, |	der Rule 23. Therefore, we request the and you have municipalities that come
Panel to order, as Mr. Margolis re- within the same categories. Why
questedonAugust 8, tha: the City’s ac- should younot go on a metropolitan ox |	tion ‘he allowed to go forth in the regional basis? In fact, that is the
Southern District of New York for a whole thrust of housing today, isn’t it? |
determination of the class and the va- + “MR. MARGOLIS: Yes. Well, the |
lidity of the class action [by that City [chose] to restrict, in bringing |
- Court] at the same tim2 that coordi- its class action, on the basis of various
nated discovery * * * continues’ judicial opinions on class actions.
: + (Transcript, pp. 117-8). “JUDGE WISDOM: You recognize
: “Second, extensive preirial discovery that there may be conflicts in the
is already underway in tne City's case. courts with respect to the scope of this
The City requests that ar transfer or- class action, do you not?
der by the Panel require completion of HMR. MARGOLIS: Yes.
such discovery as the pariies have “JUDGE WISDOM: Now, isn’t one
pine fo orSh	bas owen ordersd os thporns of tis Act fo avid
District of New York prizr to the date such pretrial conflicts? cpr
of the Panel's order.” “MR. MARGOLIS: Our position Is
. . that we don’t believe that the class
Jn summary the City requests that, ooiio) ig part of pretrial. That is our
In ihe civil action in which the City is sosition.
plaintiff, the Panel order tzat action be ! : .
transferred in part, that i= for all pre- . “JUDGE WISDOM: I recognize that
irizl purposes except determination of that is your position, but how do you
the class action questions wxich would be justify it?”
reserved by Panel order for determina- The City apparently requests that the
® tion after transfer by tr: transferor reservation of power of the transferor |	court. court to determine the class action issue
!

i + Case MRE No.3 Document 2 Filed 04/27/15 Page 12 of 42
- LJ A883 298 FEDERAL SUPPLEMENThe accomplished by dividing the papers lated Section 1404(a) zroviding for in-
ia the file befween the transferor court {er-district transfer Isr all purposes |
and the transferee court, that is, by not (change of venue) of civil actions for the
} } - transferring “the entire file”, convenience of parties and witnesses in "
: In substance tae City contends that in the interest of justice. See also annota-
a transfer under Section 1407 the trans- tions on constitutionally, construction
’ i ferce court lacks the power to determine and application of Federal Statutes pro-
| the class action issue, and that that power viding for transfer of civil actions. 5* . . 3 / € - ed
: remains in the transferor court after A.L.R.2d1239; 10 AL.X.2d 932.
. . transfer.
: Co Construction of the Cizar Lenguage of
: Rulings on the City’s Requests Section 1197
[1] } We do not agree with this inter- [2] Under applicat’s principles of
pretation. On the contrary we hold that statutory construction, the language of	- p - a i 1 £ . . ~
there should not be separation of the the statute should be examined first. If
class action issues and a reservation {0 {he statutory language is clear, the words	+ wfar L £ xr s . - v Me
the transferor court of power to deter- plain and the meaning czar, “there is no :
mine the class action issues because (1) need to refer to the legislative history”. :
aolea +3 —. 3 OI | X ~ N i
the Panel lacks the power to order such Bx Parte Collett, supra, 337 U.S, L c. 61,
a separation or reservation, and (2) the g9 S.Ct, 1c. 947, 93 L.Ed, Lc. 1211.
exercise of such a power, if 5383 ; :
world . SS ol He posse ed, Paragraph (a) of Section 1407 is re-	vould “be unwise and indiscrete. . : :
i oo N ce lied on by the City and contains some of	. i. 1: —- —-
_ The second request, that the Panel in the critical language. It reads as fol-
its order of transfer require completion igus: :
5 > 1 » wv xT Frey
of discovery agreed pnon or which Sas “(a) When civil zctions involving |	een ordervec ransferor court, is X ;
0 denied F ine the Lransieror court, 1s one or more common giestions of fact |	nied fo ame ressons. se ep chat
e 2 -. are pending in diffevers districts, such |
} : actions may be transizrred to any dis- :
Reasons for the Rulings trict for coordinated or consolidated )
First, the nature of the questions to be ~ pretrial proceedings. Such transfers
determined by the Panel should be anal- shall be raade by the judicial panel on
. red. multi-district litigaticn authorized by	Nj &
[2] The contentions of the City raise this section upon its detérminationER SA that transfers for sich proceedings
questions of statutory construction. No . i ) - >
. FA PT . - will be for the conveniznce of parties
question of the constitutionality of Sec- A . a A N
. J and witnesses and will promote the
tion 1407 or of its zpplication in these ‘ust and efficient conse of hoa
cases is raised. Only transfer under See- JUSL and eiLicienl conoiel of suc ac
. ar a. re tions. Fach action sn transferred shall
| tion 1407 Is under consideration. The be remanded by the nanel at or before
City does not appeal	to the discretion of © remanded by Lhe panel ab or bol
the Panel or to forbenranse by the Paral the conclusion of such tretrial proceed-	ie dally Ox arans Cali . . . - . .
{ oy rE y “ ings to the district from which it was
in the use of its statutory powers on prin- CLT cn
ciples of comity, but rather contends tn trapsferred unless it shall have been	ples nity, but rather contends tre ol . .
Panel has no ower to transfer tho class previously terminated: Provided, how-
AS 0 Bo 0 TrAnSLCL we Cass ever, That the panel may separate any i	action issue. In these circumstances, the » A1AT LUC Panel Ta SUDATALE atl
15h, ACSC CUTCUISLANCES, vie claim cross-claim ci ~=ter-claim or []
- questions presented ave plainly questions Sy TT ee i
of construction of the statute authorizing nde claim and remand any o H	; - a . + CU such claims before th- remainder of §
transfer. See Hoffman v. Blaski, 253 o ca claims befor oe EMAnes i	Ta ear on ve gm a he action is remanded.
U.S. 385, 80 S.Ct. 1034, 4 L.Ed.2a 1234, {actions remand i
Loe. 1260, and Ex Pacts Collett, 337 U.S. Paragraph (b) follow’ ny immediately i
: 55, 69 S.Ct. $44, 93 LEA. 1207, 10 A.L.5. Is as follows: {
2d 521, 922, hoth of which involved anal- “(b) Such eoordin~iid or consoli- ¢
[ ® ogous questions of construction of the ro- dated pretrial proceedinzs shall be con- i:
:

t BE Case MDL N's, 3 Document 2 Filed 04/27/15 Page 13 of 42
KK. :
} IN RE PLUMBING FIXTURE CASES 489
E : Cite as 208 F.Supp. 434 (1963)
: Co : ducted by a judge or judges to whom quested to make special orders about dis-3 such actions ave assigned by ithe ju- covery binding on the transferee court.
4 R . dieial panel on multidistrict litigation.
RE i For this purpose, upon reguest of the [5,6] Paragraph (b) clearly provides
{ . | panel, a circuit judge or a district that the “coordinated or consolidated pre-: judge may be designated and assigned trial proceedings shell be conducted by
p | temporarily for service in the trans- the judze or judires to whom such actions
: | ferec district by the Chief Justice of are assigned” by the Panel. So if dis-
i : } the United States or the chief judge of €OVery, including eompletion of discov-
t the circuit, as may be required, in ac- ©» and determination of the class ac-
| cordance vith the provisions of chapter tion questions are part of ihe pretrial
| 13 of this title. With the consent of proceedings, then those powers are by
o | the transferee district court, such ac- clear statutory mandate required to be. tions may be assigned by the panel to conducted by the transferee court. The
| a judge or judges of such district. The Use of the word “shall” in the first sen-	judge or judges to whom such actions tence of paragruph (b) of Section 1407
- | “are assigned, the members of the ju- makes this clear. The pretrial powers ok
4 : | dicial panel on multidistrict litigation, the transferee court	include	the powers
{ and other circuit and district judges Io modliy.exnand, oF vis © St Eo	dity, expand, or vacate earlier dis-	J ! designated when needed by the panel covery orders. To coordinate discovery
| may exercise the powers	of a district in the related ases, exercise or these
a. : : judge in any district forthe purpose of ~POWETS	may be necessary OT CCSIADIE:
® oo i conducting pretrial depositions in such The Farel has TICITHTY tHE powcr nor the© coordinated or consolidated pretrial isposiiion To TREY TG Transteree fudge© “proceedings.” Jn the exercise of his powers ANQ_Cis
! The language of paragraph (a) plainly Cretion In pretrial proceedings,	: i The langua aragraph	(: ainl; y
. Land clearly authorizes transfer of “civil The only power granted to the Pan	Dower granted to the Panel
| actions”. The power is not granted to So limilexergise, of the protria powels! transfer of “civil actions or parts there-’ Of the transferee cour	the Loan a. Br ee hr	- rs in_the
+ of” or “civil actions except the class BI yA	of paragraph (a) permitting toe
i action issue” as the City weuld have us Tree TT Teor	anel to separate any claim, CT0ss calm,
hold. In federal! civil procedure, and ee ee	SEL or thir _barty claim 0 p
t particularly in federal statutes authoriz- TERI,	civil getion and Jo xemeo	romans| ing transfer, the phrase “civil action” I OL8UC] claims before the yemanger
i has a definite meaning. Rules 2 and 3, of SEARS Tema	the agtion is Lena = is 5 power
L IVR.Civ.P.; cf. Ex Parte Collett, supre, Is in harmony wiih a poruion ot para-
L337 U.S. 55, 69 S.Ct. 944, 93 LBA, Lc, 5:aph (9) of Rule 42, T.R.CIv.,, author:
| 1210. izing the ordering of separate trials of
j claims, cross-claims, counter-claims and
[4] Nor does paragraph (a), or any third-party claims in furtherance of con-
| other, invest the Panel with the power to venience and to avoid prejudice where
| require completion of discovery under- conducive to expedition and economy.
van fsorery	as the iris ave wie peragmagh (0 of Section 1407
. he ranted court as rentestod by the permits separation and remand by thefre + - Eh Panel of claims, cross-claims, counter-’ LEY ’ claims and third-party claims separable
. N5 contention has been made by the under paragraph (bh) of Rule 42, it docs
City that discovery is not z part of the not permit the Panel lo order a separale
9 pretrial proceedings contemplated hy Sec- _lrigl fof any separate issue or ¥ F ¥	tion 1407. Ti is only in respect to deter- issues” which are also separable under
N mination of the class action questions paragraph (b) of Rule 42. This unequiv-
tnder Rale 23, F.R.Civ.P., that this con- ocal and obviously: deliberate WITREOTIME
: h tention is made. Yet the Panel is re- From the Pagel of power to sepazote Js:	222 Supp. —31%2

Case MDL No. 3 Document 2 Filed 04/27/15 Page 14 of 42
& N . i
: ® : 43) 203 PEDILRAL SUPPLEMENT
E sues in a _siggle civil action assigning dated pretrial proceedings znd by limit-
: : ang or more to the transferee court and ing the Panel's powers of separation ang
one OF More to Lhe tranmsieror court ls a. remand to claims, eross-claims and coun-
’ ‘ “CITAT, Proce	ise and wise Hmitation on the ter-claims or third-party claims, Con-
© Powers	of the Panel. gress has made it “impossible to read the
Tomas ane HS AASB PEN. o Lr 12 rrr y
) . ~ There are other clear indications that Section as excising He POWers to de> - termine the class action questions from	. . Congress did 107 intend to permit the .
i Panel to PSI en the order of transfer. Cf. Ex Parte Col-
} CTX Tor relief and to. Assign powerso lett, supre, 2337 U.S, 1. c. 53, 63 S.Ct, 1. c.
mamas	CARMEL LOR CS 0 946, 93 LEA, 1. c. 1210.
j Supervision and, decisign., separate
DATES TS Two courts to he.ex relsed con [7] The purnose of Section 1407 as
temporaneously, By authorizing the shown independently by its clear lan-
Panel to transfer “civil actions” (not guage, corroborated by the legislative
parts thereof) for coordinated or consoli- history, including the reports of the |
R I. 8S. 3315 (8. 159, 90th Congress) was re- trial of any claim, cross-claim, counter- ;
’ ferred to the Sabcommittee on Improve- claim, third-party claim, et cetera. a
ments in Judicial Machinery before which “The provision in the proposed Sec- !
an initial hearing of the advocates of the tion 1407 splitting off claims and send- Co
bill was held on October 20, and 21, 1966. ing them back to the originating district {
During those hearings Dean Neal,” one of is based on the analogy to Rule 42(b)
the authors of the Judicinl Conference and I think that Is correct.
bill, answered relevant questions on the “Now, the other suggestion, as I un- |
precise issue here, as follows: derstood it, was that instead of trans- |
“Me, U'ydings. The bill provides for ferring the case in toto for consolidated |
3 : the transfer of claims for pre-trinl pro- or co-ordinated pre-trial proceedings,
cedures. It has been suggested that only certain questions might be trans-
1 ® this “conceivably is too broad and that ferred to the transferee court and otherthe transfer shonld be for discovery un- issues left to be disposed of, presumably
der the Federal Rules of Civii Procedure - during the same period of time, by the
only, leaving other pre-trial matters to transferor court. It seeins to me that
the transferor district, to be conduct- there are at least three rather serious
ed at perhaps the same time or later. objections to that.
“The suggestion is also that the ‘unit’ “In the first place, I think it would be
which is transferred wander the bill, the very difficult to frame any satisfactory
claim, is too broad, and that only ‘is- definition that would tell you what
sues of fact” nsed be transferred. Do kinds of issues should be dealt with by .
yuu have any thoughts with respect to the transferee court and what kind by
those two poiats? the transferor court, and I can imagine
i ) . "Dean Neall Let me take the second a geeat deal of argument and discussion
| © question first. I think the appropriate going on as to whether a partienlar is-1 unit to deal svith is a claim or a cross- sue is of the kind that should be dis-
claim or eounterclain, because that is posed of back home or should he dis- 1
: . the bazie unit under the Federal Iigles posed of by the transferee court, !
of Civil Procedure insofar as they ded “In the second place, it seems to me
with separability of actions. that it would be exceadingly awkward
] “Reference wight be made specifically to have the determination of issues in
oto Ruls 42(b) of the Federul Nulrs of the case being made partly in one ju~’ {
Civil Procedure, which deals with the risdiction and partly in another. !
problem of coasolidavion. I mizbt say “The iden that n case could be pend- ¢
. that Senate Bill 8815 really provides ing in two different districts at the i
for nn procedure tha is nuite annivgous same time just sesms to me to he a mast i	to what Rule 42 provides for, where awkward aml inconvenient iden, and :
cases are pendiog io the sane district, there are great problems of timing that
amd ule 42¢b) provides that in further wonld be involved, ¥ would suppose.
ance of conveulcace or to avoid prej- Certainly it wonld be convenient to dis-
} udice, the court may in actions which pore of certain issues before you got
i it hus congolidated, order the sepuraie on to other issues aud if you had to de-
* Denn Phil C0 Neal, of the University of Chicago School of Taw, formerly Txeeutive Serretary §
of and Consultant to the Co-Ordinnting Committen for Multiple Litigation. Dean Neal was !
one of the authors of and advocates of the passage of Section. 1407, Title 18, U.S.C. }
1
1

a : i .
Co : Case MDL No. 3 Document 2 Filed 04/27/15 Page 15 of 42
¢
: IN RE PLUMBING FIXTURE CASES aL
:} Cite as 203 I.8upp. +34 (31603)
Congressional Committee and of the Ju- clear that its remedial aim is to eliminate
’ dicial Conference, and by testimony be- the potential for conflicting contempo- :
. fore Congress of its authors, makes it raneous pretrial rulings by coordinate	Rk
	vi
eide that certain of these issues must would possess all powers vhieh may be
+ : first he determined by another district Er Farrer oon m rar errs rrr. eourf, the whole process of getting on SATACOSe	pening botore it under The
. . with the co-ordinated or comnion pro- FETT IhTes of (hvil Procedure	ox-
ceedings might be interrupted. TERT The transleree court wool bo
“In the third place, it seems to me reac ier iE FL RE ITCRETG AR Li A OTS
| : : that the idea of leaving anything pend- ST INTTACIOAL Issues disclosed by tne :
i ing in the transferor district while the “pretial proceanes int Ihe Transfarc	as an the—transferde : oo
| ’ consolidated proceedings are going for- COULT, nly if an action wss settled, .. ward is really a way of depriving the Chm sed “dleriined by gunna jude	Te- ;	judicial system of some of the important cept, or otherwise disposed of in ac- !
CL advantages of bringing the cases togeth- Bn TR rm TE I En rd :
er. Procedure, would there bo To remand.” i.	. 9 : Sar EY AB imple MAAS Sica
. “I think, for example, about the vari- i Others testifying at ths hearing in	Sap-
ous rulings on questions of law which port of the bill were Chief Judge Alfred ,
) came up early in the electrical equip- P. Murrah (10th Cir), Judge Fdwin A. ;
. went coszs such as the tolling of the Robson (N.D.I11), Charles A. Bane, Es- ;
} statute of limitations, the cffect of the quire, Edward R. Jolhuston, Esquire, aud I
fraudulent concealment doctrine, the ef- Ronald W. Olson, Esquire, of the Chica-
: fect of the pleas of nolo contendere and go Bar. Chief Judge Thomas J. Clary
: 0 On, (12.D.Pa) testified in support of, the bill i
“I think one of the important things before the sane subcommittee on January i
: about the conduct of the electrical cquip- 24, 1967. |
ment cases was that these questions In addition, the House Report No. 1130, :
: were all brought on early for hearing 90th Congress, 2d Session, in which the
and were determined, appeals were Committee on Judiciary recommended |
® taken and we did not have the questions passage of the bill, stated the following: |decided	Yat widely different times in the “The objective of the legislation is to
oo different parts of the litigation. provide centralized management under
“Also, there would certainly be an court supervision of pretrial proceedings
. advantage in having only onc court de- of multidistriet litigation to assure the
cide those questions iustead of having ‘just and efficient conduct’ of such ae-
to get dozens of different decisions in tions, The committee believes that the ? i
different courts with conflicts eventual- possibility for conflict and duplication in
: Ir resolved by appeal discovery and other pretrial procedures
. “It seems to me, in short, that the sug- in related cases can be avoided or
gestion of leaving the litigation in this minimized by such centralized manage-
divided state is quite impractical and ment. To accomplish this objective the :
that the only way, if oue wants to have Lill provides for the travsfer of venue
i a case determined partly in the orig- of an action for the limited purpose of
i inating district and partly in the trans- conducting coordinated pretrial procced-
i ferce district, to do it is the division ings. he proposed statute affects only
in time that 3815 calls for, that is to tr preB TTI Ta QU ICE TH| : say, the case is moved for all purposcyg gation. It would not affect the placeto the Tronereree district, up to the of trial in any case or exclude the pos-
] OTT OT Tre-tril Proce On sibility of transfer under other Fed-
SITY be Sent hack.	f.hack.” eral statutes.
. None of the suggestions to restrict the pre- ’ * * * *
trial powers of the transferce court men- “By the term ‘pretrial proceedings’
tioned by Senator Tydings were incorpo- he copanitigg us roinrgucg to the prac.
rated in the new section, } - Trad ssacdue wich grec ITE” !At the same hearing the writer, in a trial of an eclion. "These generally in- H
statement describing operation of the bill, Tove (eposiion a	positionand discovery, and, of §
. said: course, are governed by the Federal i
“Upon a tanporary transfer under Rules of Civil Procedure See, e.g, H
! new Section 1407 the pretrial proceeds Ale 16 and rules 26-37. Under the iings in the transferee court would be Federal roles the transteres district i
conducted in accordance with the cur- court wonld have unthority to render H
® rent provisions of the Federal Rules of summary judgment, (6 control And TH: {NET RR. TPR, are fares oar GE Eel I ¥ ;
i Civil Procedure. The transferee court it pretrial provesdings, and_to impose !
:
3
]

oo ol Case MDL No. 3 Document 2. Filed 04/27/15 Page 16 of 42
® |
3 ‘ 452 298 FEDERAL SUPPLEMENT .
J . district and appellate courts in multidis- tions of the City in this case, if sustain-
i trict related civil actions. The conten- ed, would make possible, and perhaps
: sanctions for failure to make discoy- of the action—i.e, by preventing dunii-
: : ery or comply with pretrial orders.” cation of pretrial and discovery yro-
cn TEE RASS Hadad) Trem ——— ceedings as to the common issue or is.
; : In Senate Ileport No. 433, 50th Con- sues.” {Emphasis added)
: . . gress, 1st Session, the Committee on Ju- Professor Currier submitted for consil-
3 diciary recommended passage of the bill, eration of the subcommittee amendment .stating, among other things: of the bill to permit the transferor court
] “The purpose of the proposed lesisla- to process the “unique issues” while the :
i tion is to provide formal machinery transferee court processed the Feommon :
to transfer, for coordinated or con- issues”. The suggestion was as follows: i
solidated pretrial procedurss, civil ac- “The minimum unit to be transferrad
tions pending in different judicial dis- appears to be larger than is necessary
’ tricts, and have ono or more common to permit maximum realization of the
j questions of fact. purpose of the legislation. The action
; * * * * * that is to be transferred, and even the
1 . “Paragraph (e) provides that judicial ‘claim’ that will remain in the trans- no
review of transfer and subsequent or- feree court aftor it separates and re |
ders of the punel is to be had only by ex- raands other claims, cross-claims, ete, |
3 traordinary writ pursuant to 23 U.S.C. will normally include some unique fae- |
© 1651, the All Wrights Act. This pro- tual issues, such as damages, in addi- i) cedure, more expeditious than appeal, is tion to the common issues that are the
consistent with the overall purposes of ground for transfer. Pretrial proceed- ;
proposed 1407. Paragraph (e) also ings as fo these unique 15STeS—TrHI=HTT ;
} provides that no review of a pend order RT AE Mu: 0:0 |i i shall be in any other forum thun the ~otmally ough TT RTC !
i ( ] U.S, Court of Appeals of the trans- re TrnS rT	ToL] RusEE TNE AT |	: ferce district, thus evoiding multiplicity riteria of section 1404(a), the entire
of review proceedings and minimizing TR ATL Ithe possibilities of conflicting rulings.” IT	TE
(Emphasis added) TUTE extremely likely, of course,
. Congress was keenly aware of the mean- : that the transferee court under the pro-
} ing of the bill on the question presented posed legislation would limit pretrial
by the City. : proceadings to the corumon issues oven
. Professor Thomas 8. Currier, of the though the bill does mot require sneh
University of Virginia Law Schonl, limitation. The unique issues could be
studied nnd analyzed ILE. $276 for Depu- left for pretrial proceedings in the
. ty Counsel Trubow, of the Tydings Sub- transferor court after the action has i
committer. His analyses and sugeos- been remanded. Rut it is questionable
tions were included in the appendix to sebgslen Diora rT ———- the printed transcript of Hearings on S. uniqu? issucheshanld.alarass be Ioan
: 3315 at Chicaze, October 20, and 21, await conclusion of pretrial proceedings
ut pages 84 to ST, inclusive. In his anal- OR E0MAeH Jssues, Efficiency may re-
¥siy Professor Currier correctly stated dire thai pivcedence be given, in the
the following: event of conflict, to pretrial of the
(2) Scope of transfor—The proposad common issues. Put sueh conflicts may
legislation contemplates transfor of na prove to be infrequent. In the context
‘action’ to the transferee court, but for of the recent elecivical equipment cases,
limited purpose of pretrial and dis- for example, mony potential deponents
covery proceedings. The judieial panel on issues of damages may have had uo ]
: on multidisteier Htigation iy author © role to play in the pretrial proceedings
zed to separate and rerund any Celaim, on issues of censpivacy, and the only
cross-claim, counterclaim, or third-puriy other Ikely soures of couflict-~the in-
clair” bafore rermauding the entive civil ability of a defendant's attorney to at- ;action, and is to remand the entire oe tend two pretrie) proesedines simultane- 3
tion ‘at or before” the conclusion of eon- ously—is not. as a practical matter, i
solldated pretrial procesdings, Thus © really applicubis ro large corporate do- $Hie minimum unit of litigation trans. fendunts, which are apt to be repre. H
ferred Is oe Celeim) The claim tha is sented by a hase of attorneys anyway, :
ty he transfeered tnst involve ‘one or “It thus appears that dispute of lit- imore common questions of fact,” and ization would a better secved if rhe !
Cotransfer Is oto he ordered when it will proposed legistotinn Hmited the scope of i
“profote the just and efficient eonduct” transfer to common issnes of faet {in- !
| !
I

4 ~ Case MDL No. 3 Document 2 Filed 04/27/15 Page 17 of 42
9 IN RE PLUMBING FIXTURE CASES 4933 Cite as 238 F.Supp. 484 (1963)
! probable, pretrial chaos in conflicting flicting, disorderly, chaotic judicizl ac-
: class action determinations which Section tion is the greatest. Under the recent-
4 1407 was designed to make impossible. ly amended Class Action Rule 23, F.R.
. METI 2d STATO \] ha SQ
1 : In March 1965, a draft of Section 1407 CIV-Po powers for defining classes ofi was recommended for approval by the parties, including plaintiffs and defend- ,E - * ” IS > ~y aalv Ii N a
. Judicial Conference of the United States RS, arc not expressly limited by space,
F SI . by the Co-Ordinating Committee for Mul- time, deseription of party or nature ofi hd allay adv J + +
: tiple Litigation in a formal report dated claim or defense. Already, in related: March 2, 1965, describing the purposes multidistrict litigation coming to the at-
- . and operation of the proposed section. tention of the Panel, separate district
The scction in its oricinal form wag courts have been requested to make con-	. Ed O + R Paez oe . . . -
J drafted by the Co-Ordinating Committee. ficting class action determinations. In
This report is part of the legislative his- these circumstances it is not certain that
tory. Iix Parte Collett, supra, 337 U.S each district court will always be zble to	. - 3 = y Us Ne. cps	
= a . a. - ;
55, 60 S.Ct. 944, 93 L.Ed, 1. c. 1214. In learn of the conflicting requests made to
i March 1965, the Judicial Confercnce of other courts. It Is ceriain, however, that
: : the United States approved the proposed I these conflicting requests ave deter- :
legislation in-principle. On the basis of mined under Section 1407 in a transferee	gis 1 a, On th 8
: ; ay . . : informati ans f :
; this approval a bill incorporating the pro- ¢0urt, the information and means for
: posed new section was introduced in the fair, speedy and economical coordinated
House of Representatives as H.R. 8276 determinations will exist. It is the clear :: ’ J Pint oti ~ invest The trans: :
89th Congress, by Congressman Emanuel fr of Section 1407 to invest the tans |Celler and referred to the Committee on = rey g.oxc.usive A	. ow . - 83d ad a gd -
Judiciary. This report contained not - 2ILSL.LLd retria Le
’ only the original draft of the proposed crminations of the class action ques-
; . k Toms In he ETE ST ection devel
® Section 1407, but.alse.a formal comment tons... In the STH [i protection devices; thereon which recornized the dangers in Hugation we said: “Determination of all
SImUllancous | proseention of separate matters involving questions of class zec- :
3 ro RGA! aL ID tions shall be left to the sound judgment |Tow adopted Class Action Rule 23. The ©0f Judge Metzner (the transferee
Commont included or ToTeromee	To aifficul- judge).” In re Protection Devices and
ties of separate actions involving repeti- Central Station Protection Service Anti-Cs . trust Cases,No. 9,295 F.Supp. 39 at page |
tious discovery mentioned in the Advi- pre AS€8; INO. Jy20d LL UPD. pagesory Commiiftee noite to the proposed 40. :
amended adopted, Rule 23. The full . . 1:
amenced, now adopted, rule 23 +t u [10] To this concept the City repliescomment of the Co-Ordinating Cemmit- ; . so eu: -
. . . 1s I that the pretrial determination of the
tee is set forth in the appendix following : estions is not art of the “pre	. . class questions	is not a parto e -e-
this opinion and order. or questions 15 7 CET Lstrial proceedings” as used in Section
; [8,91 1Itisin the field of class action 1407. No authority is cited for this un-
determinations In related multidistrict usual contention. The casy answer to
civil actions that the potential for con- this contention is probably the best one,
cluding issues of mixed fact and law). asking the I’anel hy constraction to do
and permitted the transferor court to what Congress deliberately declined to do.
conduct contemporaneous protrinl pro- In addition attention is invited to dis- :
ceedings on the unique issues, subject cussions of the Judicial Conference Dill :
only to priority, in the event of conflict, prior to its amendment and enactment,
of pretrial proceedings in the transferee (Consgalidation of Proceedings Under Pro-
[SORE WT TERI ICS LI Cir AT A0 ) H posed Reetion 1407 of the Judicial Code:
pial] expressly mit previal proceeds Ununswered Quedions of Transfer and
JEU EE EE CTE TIMER TSH IoVI TRY Review, 23 YU. of Chicago L.Rlev. 558, lo.
T emliflies.” 301 (1966); The Problem of Venue in )
lids surrested amendment was deliborate- Multiple District Litigation Pert JV.
wa Otitted in LHe DIT ST ToY, enacting the The Cellier BPI 41 Notre Dame Lawyer
A new section into law, Lhe Cay now is S07, Le. 923-026 (1969).
a	a

Case MDL No. 3 Document 2 Filed 04/27/15 Page 18 of 42
494 298 FEDERAL SUPPLEMENT
4 namely, that pretrial, as an acizclive, Ina single civil action with the Rule 161 means before THal-—THAT AN IAEA Prge.., proceedings in the transferee court and
ceedings before trial are preiriz Bro- the Rule 23 proceedings in the trans-
ceedings. This isknown	not :zly by feror court. The problem becomes prac-
i lawyers and” judges, but is krniwn_or tically insoluble when the class action re. .: “ean readily be learned. by. laxmoes. See guest is in the complaint, with control
"Random House Dictionary of t=: Eng- of amendment of the complaint, the ad-
] lish Language, unabridged ed. 1121. See dition of parties and the giving of no-
} also “Pretrial Calendar” 33 Weris and tice shared contemporancously by one
Phrases 511. transieree court and several transferor
. . From a legal standpoint the clzss ae courts: with exclusive separate jurisdic-
ee tion request and its determine:ion are tion. :
the most urgent of the pretrial zroceed- Further, the vide and general under-
ings. This is recognized explicitly in standing that determination of the class
subparagraph (¢) (1) of Rule 23, F.R. acticn questions is a part of pretrial
Civ.P., which specially commards that proceedings constitutes the basis of the
: “[als soon as practicable after t=e com- listing of this as a subject, the processing
mencement of an action brougzt as a ©f which should begin at the First Prin- |class action, the court shall determine cipal (Preliminary) Pretrial Conference,
by order whether it is to be s3 main- IR the suggested procedures of the Man. i
i tained.” Under this subparagraph the ual for Complex and Multidistrict Liti- |
erder when made may be coriitional, 9ation approved in September 1968 hy |and may be altered or amended at any the Judicial Conference of the United
time before the decision on the merits. States. See Manual, pages 14, 22 and 23.
(So the process may continue through Unless the determination	of the class
pretrial and after the pretrial croceed- action question is treated as a part of
® ings have been completed. This jeaves the pretrial proceedings, the transferee
~dbe transferor court some pavTT oud dio court will be unable to determine the
cretion before transfer and ziter re-, parties (formal and represented) to the
BE a aL local and transferred actions, will be
. haa : . Tal : unable to coordinate the pretrial pro- |	n an action filed as a class action
most pretrial processes (specifically and ~Ceedings and will be unable to control
generally listed in Rule 16, F.2.Civ.p, the stmplifieation of the issues through
under the title “Pretrial Pricedure; Control of amendment of the pleadings,
Formulating Issues”) involve cr are af. and through comprehensive control of
: fected by an affirmative class zotion de discovery.
termination. Those specifically listed in Another of the innumerable potential: Rule 16 include: alarming consequences of the construc-
“(1) The simplification of tre issues; tion of Section 1407 submitted by the
“(2) The necessity or desirenility of City is the conflict and delay which may
amendments fo the pleadings: result from early appeals from class ac-| Lo oe tion determinations. Under current in-
“(3) The possibility of obtaining ad- terpretation there is a right to early
missions of fact and of docu- appeal by the plaintiff from an order
ments which will avoid unneces- “dismissing” the class action request
: sary proof; * # x» before trial of the action. Eisen v.
In order to make it clear tha: the Rule Carlisle & Jacquelin (C.A.2, 1966), 370 ;
16 orders and Rule 23 orders z-2 of the F.2d 119, cert. den. 335 U.S. 1035, 87 ;
same pretrial nature, subparagraph (d) S.Ct. 1487, 18 L.Ed.2d 598 (1967), 2nd i
(3) of Rule 23 expressly permits the appeal (C.A2, 1968), 351 F.2d 555. If. ;
i ’ Court to combine Rule £2 crisrs and in multidistrict-multicireuit litigation
! Rule 16 pretrial orders. It weuld be in- such as this, powers to determine the
| teresting to learn how this eoui’ he done class issues are reserved to the trans- :
| @ | | ]
| |i .
i}

i I Case MDL No. 3 Document 2 Filed 04/27/15 Page 19 of 42
9 IN XE PLUMBING FIXTULYE CASES 485E Cite as 268 1°Supp, 481 (1563)
} feror eouris, vader the City’s construc- venues, cannot exercise contro! over the .
; tion of the statute, multicireuit appeals same single claim for relief at the same
b i on conflicting class action requests time. As noted above under Rule 42(b), .would be possible. Such multicirenit ap- TWR.Civ.P., and Scctiion 1467, separate
3 peais would be fraught with multiplied claims for relief can be separated and
{ ) delay, confusion, conflict, inordinate ex- transferred under Scetion 1404 as in
pense and inefficiency, which Seetion Leesona Corp. v. Cotwool Manufactur-
1407 intended to eliminate. With mul ing Corp. (D.S.C.) 204 F.Supp. 139, app.
. tiple pretrial class issue action orders dismissed (C.A.4, 1962), 308 F.2d 895,
and appeals in the transferor districts or remanded under Section 1407. This :
and eircuits, the transferee court would is possible because several separate
be helpless to process the pretrial pro- claims for relief in a single civil ac-
ceedings in a manner which “wili pro- tion are scverable in the interests of
mote the just and efficient conduct of justice. A single claim for relief, how-
such actions” in accordance with para- ever, is separable by issues for trial un-
graph (a) of Section 1407. On the der Rule 42 only if the entire action :
other hand, if all pretrial proceedings, and all issues therein remain under con- :
1 after order of {ransfer and hefore re- trol of one court (as distinguished from '
: mand, are conducted in the transferee a judge of the one court). The reason
caurt the pretrial prececdings and ap- is that, in federal civi recedure, the :
; pellate proceedings for early review of Cn sll precede The
: pretrial rulings will ordinarily lic in the uit for purposes of venue and jurisdic-
; Court of Appeals for the transferce dis- hy 8sade. couslpl a particular |	3 trict from the time of transfer until re- Lng This unitary concept of the clam !4 mand. Cousequently, coordination at for relief permits transfer of the claim
® the appellate evel will also be achieved for relief from one district court to an-in one Court of Appeals, in the absence other as in case of a transfer under Sce-
of an exceptional appeal hefore transfer. tions 1404(a), or 1407. But in no such
As shown above, the contentions of Separation and transfer is contempo-
the City are based on an erroneous con- raneous dual control hy two or more dis- .
struction of the phrase “pretrial pro- trict courts of a single claim for relief
: ceedings” as used in the text of the bill. = (or separate issues thereof) permissible
No judicial authority is cited in support In the federal system. :
of the City’s contentions. No other rea- [315] In substance a transfer under
sons ov analogous experience is cited by Secticn 1404(a) is a “change of venue”
the City. No part of the legislative his- (that iy a “change of courtrooms”) for :
tory is cited by the City. On the other completion of pretrial and for trial or
} hand, the legislative history unequiveocal- other disposition. Van Dusen v. Bar-
i ly supports the plain meaning of the rack, 376 U.S. 612, 84 S.Ct. 805, 11 L.
| statute. Adoption of the construction Ed.2d 945, 1 c. 962-963. By analogy a :1 proposed by the City would result in an transfer under Section 1407 is a changeunauthorized and unintended frustrating of venue for pretrial purposes.
Judicial amendment tothis salitary legis- [16,17] On change of venue {he
lation. overwhelming authority holds that the
[11-314] Partition of the pretrial - furisdiction and powers of the iransTeree
processes in a single claim for relief, with Court are eheklensive with (HET 5T TES
contemporaneous exercise of jurisdic- TransToror court; {pal th fuanstorce
don Ly two or more district courts over “FRI may make any order to render any |
the separated parts, is not only un- Judzment that might-hawe-bean rendered
rrecedented in federal jurisprudence by the transferor court in the absence of
but violates well settled principles of Laser. 92 CJS. Venud §207 pp. 980°
C judicial management. Two courts of 981 and cases therein cited, cf. Greve v. iexclusive different jurisdictions, or Gibraltar Enterprises (D.N.M.) 85 F.
1

. Case MDL No. 3 Document 2 Filed 04/27/15 Page 20 of 42
] 446 208 TEDIRAL SUPPLEMENT
; Supp. 410, 1. ¢. 414; that after zn order of Appeal in which is pending multi- .
1 . changing venue the jurisdichion ol tne district litigation subject to transfer un-
; Trausfergr.co	TerQr.Couri ceases; ang. thas theres der Section 1407. There is no disposi-
gfter the transferor court can issue no tion on the part of the Panel to act t
i ' furlhcr. orders, and anySIEpsTTESe	TY hastily or without a considerate and well
a ’ it are of no effect. Phebus v. Search. deserved respect for these courts. on
E : (C.A.8) 264 I. 407, 1. ¢. 409; 21 C.J.8. principles of comity.
Courts § 517a; 20 Am.Jur.2d § 143; 59 It is obvicus that, under Section 1407,
Am.Jur. Venue, § 78, p. 79. These prin- \inere will be proposals to transfer civi
ciples are applicable	to a LranIIer OT \actions in which important pretrial mo :
der Section 1407 from The time of entry tions are under submission or are reachq
of THe order of transfer until the time ng the point of submission. These mo-
| - of eniy of an’ order. of rémand. ions include moticns for dismissal, for
[18] In the case of class action de- Eummary judgment or for determination
3 : terminations made by the transferor f the class action questions, among | |
court prior to transfer, the provisions [others. In one case of which the Panel | |
k of Rule 23 apply permitting the trans- [has formal notice, an appeal from a pre-
ferec court to determine the class ac- [trial denial of the class action issue is |
1 tion questions and to review and revise [presently pending in the Court of Ap-
any class action order as in its sounc |peals of a proposed transferor court. |.
A judicial discretion is desirable or neces- | The problems arising from these special |
3 sary in the interests of justice. circumstances require caveful and |
[19] In the case of the City under thoughtful solution by the Panel.
® consideration, 4 does not appear tha: On principles of comity, where ap-the class action question is under sub: propriate, the Panel has in the past
mission, or that an initial decision is timed its actions and constructed its or-
"imminent. Discovery processes hav: ders in a manner which will permit the
© been employed but all discovery proc- {ransferor courts (and Courts of Ap-
esses completed or in progress will bz peals if any are involved) to reach time-
. useful after the transfer. No cause to ly decisions on particular issues without
defer transfer of the case of the City abrupt, disconcerting, untimely or inap-
appears. Transfer without condition propriate orders of transfer by the
will be ordered. Panel.” This policy of comity has been )
What has been said of the power ts followed in the past and will be fol- :
determine the class action issue disposes lowed in the future by the Panel. =
of the request for an order in respect t= The successful use of Section 1407 re-
discovery. This matter is committed t= quires cooperation among the Courts,
| the transferee court after order of trans- and by the Panel in an atmosphere of
fer. All discovery processes inprogress trust, confidence, comity and good will.
and discovery orders remain in effec. The Panel believes these conditions ex- |
J Wiles Vacated or modified by ine tran. ist and will continue to exist.
feree courtinthe same .mapner ther
hrprvce pe mai RPT . n faye }could he modified b the transferct Conclusion
“Court TiS Clearly stated in the notice ; :
“and order for hearings of the Pane For the foregoing reasons, it is hereby
that discovery processes are not sus- ORDERED that, on the initiative of
pended thereby. the Panel, the nine civil treble damage
: antitrust actions listed in Scnedule B at-
oo ] tached be, and they are hercby, trans-
The Principles of Comity ferred without special conditions or res-
¢® The Puuel is keenly aware of the prei- ervations to the Eastern Distriet oflems of the District Courts and Courts Pennsylvania and assigned to the Honor- |
i

: ol Case MDL No. 3 Document 2 Filed 04/27/15 Page 21 of 42
;
; IN RE FLUMBING FIXTURE CASES 497Clie ns 205 I Supp. 484 (1043)
able John YW. Lord, JTr., District Judge of 1407 of Title 28, the transferce court .
the Eastern District of Pennsylvania, has jurisdictien to determine class ac-
So with the consent in writing of the trans- tion motions under Rule 23, absent a .
feree court attached hereto. pending motion in the transferor court.
Co, However, when a motion under Rule 23
: EDWARD WEINFELD, Judge of the AXCa0y has beenargued	or submitted to
a : Panel (concurring in part, dissenting in 2 33078 nn the {ransferor	court and 1s
part). _undelermined by him at the time of the
: : ~TTTTTE Teetro Te by UrePaier—I concur in the transfer of the actions® under section 1407, such transier sTaeT .
for coordinated or consolidated protrial “does notdivest	the transforor judge oF
proceedings. However, I dissent with JUFTSAICIon	fo make his determination
respect to class action motions as fol- TET IT onion, Notwithstiand.
I agree that upon the entry of an or- .comity, may decline	to exercise juris-
j der by the Panel pursuant to section _diction and defer to the transferee court	es	GOLET LO AE ce Court
SCIIEZDULE RB* :
— - |Northern District of California |
1. The City of Los Angeles and Department of Water Civil Action
: and Power of the City of Los Angeles No. 48866 |
: |
® American Radiator & Standerd Sanitary Corpora- |	tion, et al.
2. State of Hawaii Civil Action
: V. No. 49541 |
- American Radiator & Standard Sanitary Corpora-
tion, et al. |
EasternDistrict ofVirginia |	| 3. Edward S. Petros Civil Actien
V. No. 4887-A
American Radiator & Standard Sanitary Corpora- .
. tion, et «i. .
4. Vincent A. Mangano znd M & II Builders, Ine. Civil Action |	’ v. No. 4888-A :
American Radiator & Standard Sanitary Corpora- |tion, et al. :
5. Vincent A. Mangano Civil Action §
Vv. No. 4889-A |American Radiator & Standard Sanitary Corpora- !
tion, et al. ’ H
Southern District of New York
i 6. The City of New York, ct al, Civil Action
v. No. 68-3149 :
American Radiator & Standard Sanitary Corpora- 5
< tion, ef al, i
* (Lettered “13” because of Schedule A listi: < cases originally transferred. 205 F.&app. 33) |298 F.Supp.-—32 ¢
i
i

SEE Case MDL Ns. 3 Document 2 Filed 04/27/15 Page 22 of 42
eo :
| : £0Q 228 FEDERAL SUPPLEIIENT	Hey
Eastern District of Wisconsin
3 R 7. State of Wisconsin Civil Action “
. Vv. No. 68-C-230
i : : Plumbing Fixture Manufacturers Association, et ol. '
. : C District of Kansas
8. The State of Kansas, ex rel. Robert C. Londerholm, Civil Action
Attorney Gernzral No. T-4481
. Vv. :
. American Starizrd, Ine, ef al. :
: District of Columbia
9. Blake Construciisn Co., Inc. Civil Action :
v. No. 2104-68 :
: American Standard, Inc. ef al. |
|	
BE I, H
|
The Co-Ordinating Committee con- |
: : APPENDIX | sidered whether the necessary pro- |
® cedural changes could be accomplished	PARTI under existing rule-making authority.
From Report of the Co-Ordinating Com- Study led to the conclusion that venue,
mittee on Multiple Litigation Recom- historically a matter of legislative con-	. ¥
mending New Seciizn 1400, Title 28 cern, would be affected by any appro-	E=3
priate solution of the problems. An
: Comment on Proposes § 1407. Multi- earlier draft of a similar proposed stat- |
. District Litigation ute would have provided the necessary
statutory authority but would have re-
As directed by the liarch 1964 reso- quired substantial implementation by
El - a ne
i lution of the Judicial Conference of the the panel under specifically delegated
] United States, the Ce-Ordinating Com- flexible rule-making authority. After	y o : P=]
mittee for Multiple Litigation (a sub- considering the comments received on an
: committee of the Ce—mittee on Pre- earlier draft, the Committee has con-
Trial Procedure and Practice) has ex- cluded that its objectives can be achieved
amined the need for lesislation and rules by the move limited and specific statute
i . oo y now proposed which authorizes only im-
to treat the speeial ¢reoblems presented prop . a Co
by multi-district litice='on. During the plementing rules not Inconsistent with	N } gztion. go the :
past year the Commi-iee has smalyzed 20¥ Act of Congress or the Federal Rules: ~ . . N . . 2 Mel SOR J,
] its experience in the electrical equip- of Civil Procedure.
ne PEiornti ~zn] vit} tt . = i
ment litigation, consulted ee ae Two techniques, court control of pre !	idges and lawyers woo participated in . ae fend ;
judges and wyers ; participate trial proceedings and centralization ot {	the ad hoc coordinzizn program for .- . . >
Cy i such proceedings, are basin to the pro §those cases, and appreiszd numerous pro- ; a ser 1a i"
as a Cae posal. By authorizing unified treatment
posals designed to ex;adite proceedings 4 EN he covolel : i	ae . - or c1-distyr : 3 fang oneog
when related civil z-ions are pending 1o¥ multi-district actions mvolvies ©
in more than one d'si=ict. Proposed § OF more common questions of fact, thw i	> fre * } Hd 5 RIES LE £
i ® 1407 is recommends? as an important statute would create the possibility © i	PN oo. - 2 : 5 . em 4 get
step in improving (ziicial administra- 2pplying to these cases ordered pre-iris! ition for this class of cases. procedures like those generally voce? :
b
i §

Co Case MDL No. 3 Document 2 Filed 04/27/15 Page 23 of 42
3 ‘
| IN RE PLUMBING FIXTURE CASES 45% .. } Cite as 208 F.Supp. 484 (1663)
mended for protracted cases pending in Limited Transfer. .
; a single district. See, Handbook of Rec- . . . . .
3 ommended Procedures for the Trial of The major innovation propesed is
oo Protracted Cases, 25 F.R.D. 351 transfer solely for pre-trial purposes.
} - (adopted by the Judicial Conference of The statute's chjectives of eliminaling
: J the United States—»March 1960). Cen- conflict and duplication and of assuring
tralization of pre-trial proceedings is efficient and economical pre-trial pro-
sought in order to minimize the addi- ceedings would thus be achieved without
tional Htigation costs which are engen- losing the benefits of lecal trials in the |dered in mulii-district litigation through appropriate districts. An advantage of
i overlapping and conflicting discovery, this statute in multi-district litigation	J & S14 Els ho iy . .
Such as repetitive	depositions	and docu- Over alternative techniques, such as the :
ment	production	and minor variances in class action, is that each action remains ;
| written infertogatories which may im- as an individual suit with the litigants :
pose undue burdens on the answering retaining control over their separate in- i
patlies. terests. The Advisory Committee's Note
— to Proposed Rule 23 (F.R.Civ.P.) com- ||
ments that, “Even when a number of i
Scope of the Statute. separate actions are preceeding simul- i
. taneously, experience shows that the
- The statute affects only the pre-trial eh p hp 5
stages in multi-district litigation. It burdens on the partics and the courts i; AN can sometimes be reduced by arrange- |
i would not affect the place of trial in an : .. So ye
———s - ; ny ments for avoiding repetiticus discovery |	i fase or exclude transfer under other the like.” I -
i Ts Te 55 TSC rr r the like.” Preliminary Draft of Pro-
Fo p-— 1200003 rion to ot the con posed Amendments to Rules of Civil	H x [¢] g a ’y on- . . .
clusion of pre HX roceedings Procedure for the United States District	SIUS10] c-1r1an COC . . .
| p ap & Courts 118 (U.S. Government Printing	«a . . ££ - A077 we
j The civil actions which would be af- Office, 1964). _ Proposed § 1407 would |
fected by the statute must meet several maximize the 1Ugant’s traditional priv-
general requirements. First, they must 1leges of selecting where, when and how. ¢ fg £ vp * ade +3 - yey x -
! involve one or more common questions of 0 enforce his substantive rights or as
fact. Second, they must be pending in sert his defenses while minimizing pos-	- ACT. oe 2 Ni 2 NGINL . . . .
ii a sible undue eomplexity from multi-party
i - more than one district. Although pres- . .
i . ; . jury trials.	] ent procedures permit coordinated ov
| consolidated treatment of related cases Under proposed § 1407 the {ransferee
brought in or transferable to a single district court would haye ik ual pow-
i district, these procedures do not pro- ers provided by ihe Jiedes aes of{ = vide for such treatment where the cases vii procedure, including authority tog ner ne § = - msmammeisierl AAyay	HU
| © must remain pending in several dis- rr ry Jes end to contro;	. 0 1 = a ty <] 3
© tricts. The proposed statute would not SDC AIEL DL . L al and fo	2 ‘er oa a imi i ur make dis-
aifect existing methods of coordinated - £2 ate,
1 + cr consolidated treatment of cases pend covery or comply with re-trial Oracrs.	- pS Pe «LU LLall = £4 3 - N yo. . J i p “
i ing in a single district. Third, the cir- he deposition judges	would have paw-	-5 3 « i 3 - ~ en TT Sr 3 re
i _— Tr I. ers over the aepenents and the	actions	as	EH fet 18ty 1c must } 33 iat in	Pe SAA cr
H on SLances must be such fhat coorar f JUQECS ol “fhe districts in which the
H ed or consolidated pre-trial procendings SEE Moc Ms wragier Alk -	3 i. _— oo deposidiens-are. Laken.
H would promote the just and efficient S823 hetakeri Kettle 3 QI Fina 3 Lire N i 3
conduct of such actions. This final re- Transfer to the most desirable forum
H ® Guirement limits the applicability of the js provided by permitting pre-trialj proposed statute to litigation in which transfer “to any district” Present
i | significant economy and efficiency in transfer provisions fore eivil actions,
i Judicial administration may be obtained. which are not limited to pre-trial pro-H 1
3 }
i |

| a Case MDL No. 3 Document 2 Filed 04/27/15 Page 24 of 42
,
i , 505 295 FEDERAL SUPPLEMENT
R + ceedings, vestrict the transferee districts litigation empowered to: (1) initiate
I . available. For cuample, Title 28, U.S.C. transfer proceedings; (2) transier civil
i: . . § 1404(a) limils the change “to any actions for coordinated or consolidated
: other district or division where it {the pre-trial proceedings with the consent
. . civil action] might have been brought.” of the district courts from which the
1 Similarly, Title 28, U.S.C. § 1406(a) actions ave transferred; (3) assign ai restricts transfer “to any district or judge or judges to conduct such pro-
division in which it [a case] could have ceedings and request the Chief Justice
J been brought” Analogous problems to make inter-circuit assignments for1 are presented when multiple bankruptcy this purpose; (4) act as and designate
] petitions are filed by or against the same cther judges as deposition judges in any
bankrupt. Seciicn 32 of the Bankruptey district; and (5) remand transferred
4 Act, Title 11, U.S.C. § 55, permits actions to the districts from which they
] transfer and consolidation “in the court were transferred at or before the con-
1 which can proceed with the same for the clusion of pre-trial proceedings. The
] greatest convenience of parties in Chief Justice is granted authority to
interest.” designate the panel's membership which
] . CL . shall consist of seven circuit and district
Benefits from consolidated pretrial judges
! procedures for related cases have heen Ea
j recognized as grounds for transfer un- When allocating multi-district litiga-
] & der Title 28, U.S.C. § 1404(a). In Pop- tion among the districts or assigning a	kin v. Eastern Air Lines, Inc., et al, judge or judges to conduct pre-trial pro-
i ‘204 F.Supp. 426, 431 (E.D.Pa); ceedings, the panel would be functioning
mandamus granted sub nos. Barrack, primarily in an administrative capacity.
Administratrix, et al, v. Van Dusen Analogous precedures for dividing the
j U. S. District Judge, et al, 308 F.2d judicial business of a single district are
953 (1862), rev'd. and remanded, 376 found in certain districts where this
U.S. 812, 84 S.Ct. 805, 11 L.Ed.2d 945 function is performed by an exccutive
(1964), the district court granted de- committee of the district judges. Tor
fendants’ § 1404(a) motions to transfer example, General Rule 10(c), Rules of the
55 personal injury and wrongful death United States District Court for the
actions to another district where 114 Northern District of Illincis, provides:
cases which arose from the same crash “(¢) Exwecutive Committee: Thewere pending, stating that: assignment of cases to calendars and
“The interest of justice requires judges * ¥ * shall be done under
the tronsfér of these cases to the the general direction of an Exccutive
transferee District for these reasons, Committee consisting of three judges
among others: (1) Consolidation of of this court * = =
all the cases arising from this acci- . .
dent for purpescs of proceedings be- The Committee's experience In OFF
fore trial is likely to procure fairer ganizing the deposition program for the
and more orderly trials for all litigants electrical equipment antitrust litigation
and save needless time and expense indicates thal	swifter	and more Ii	flexi-
for the public, including jurors, and ble procedures for inter-circuit assim
other litigants whose cases are await- Tent of judres To Conauct depositions
: ing trial.” (Emphasis supplied.) Tare CesEbTe AT SoHE Stages Bre
i ® Trom nny hot require judges or may	: - Cpe oy... Tequire several deposition judges. At
Judictl Panel on Multi-District Liti- on ging prompt attention from @
J gation. larger group of judges may be useful.
The statute provides for the designa- I'requent changes of the judicial person-
tion of a judicial pancl on multi-district nel assigned to this task may also bu

| . | Case VDL No. 3 Document 2 Filed 04/27/15 Page 25 of 42
; IN RE PLUMBING FIXTURE CASES 5313 4Cite as 208 F.Supp. 484 (1663) :
: advantageous. To.permit rapid ehances ing). On the other hand, it has been :
in the assignment of judicial personnel, argued that such orders are appropriate
CSL PLIST Le Dane ne for direct review under the doctrine of "
; Judges to whom the.cases. gre assigried Cohen, Executrix,	.ct al, v. Beneficial
1 ' te "exercise the powers of TRI Industrial Loan Corp., et al, 837 U.S.
1 Judge in any district for the urpose or 541, 60 S.Ct. 1221, 93 L.Ed. 1528 (1948).
. . conducting pretrial depositions in such Note, Appealability of 1404(a) Orders:
coordintled or co rE Mandamus Misapplied, 67 Yale L.J. 122
: ) ’ Co ceedings.” In addition, the panel is em- (1957). Orders of the district court re-
. powered fo delegate this responsibility _manding cases improperly removed from ’
to ¢ther judzes “when needed.” state courts are not reviewable. Title :
TT 28, U.S.C. § 1447(d).; In accordance with the national
character of the litigation with which .
the panel will be concerned, its member- The Electrical Equipment Antitrust :
ship will be drawn from seven judicial Cases.
circuits. The members will be ;
designated by the Chief Justice who The national coordination program |
presently has analogous functions in for the electrical equipment antitrust
connection with inter-circuit assign. cases utilized many novel procedures to
ments and in his capacity as presiding SIMplify and expedite that complex
officer of the Judicial Conference of the IMulti-district litigation. The broader !
United States. Title 28, U.S.C. §§ 201 and less expensive discovery that result- |
| 295, 331. ed from the planned program of eliminat- |
Po ng repetitive examinations of deponents |	Transfer would be effected by entry of and production of documents was pos-
the panel’s order and the filing of the sible because of the cooperation of bench |
required consent of the district courts and bar under emergency conditions. |	from which the actions are transferred For a more complete description of that
in the office of the clerk of the program, see, Neal and Goldberg, The
transferee district court. This proce- Electrical Equipment Antitrust Cases:
dure is modeled on present techniques Novel Judicial Administration, 50 A.B.
. Zor effecting removal from state courts. A.J. 621 (1964). The devices which
© Title 28, U.S.C. § 1446(c). were effective in the national program,
! such as central management of pre-trial
| : By providing for entry of the panels proceedings in related cases, and the
H transfer orders in the transferee district reduction of deposition delays by assign-
! it is intended to insure that appellate ing a judge to be available for prompt
~ review, when available, will {ake place rulings througheout a deposition, com-
in one Court of Appeals. The proposed mend themselves for use in future multi-
section does not attempt to alter or district litigation. Proposed § 1407
5 clarify present doctrines	as to the availa- would enhance the possibility that these
| bility or scope of review or transfer ang other effective economic procedures
L crders. Transfer orders under §§ 1404 will be applied in the future to multi. |12) and 1406(a) may be reviewable cea
: 7 7 or district litigation.
solely by mondamus. See, Philip Carey
Aig. Co, et al. v. Taylor, 236 F.2d 782 H
(CLA. 6, 1961), cert. den, 365 U.S. 948, op	0 00
&1 8.Ct. 1903, 6 L.EA.2d 1242 (1961) (§ $
1£04(a) proceeding): Bankers Life & Your Sub-Committee to study !
’ Casualty Co. v. Holland, Chief Judge, problems of multiple litigation submits
® et al, 846 U.B. 379, 74 S.Ct. 145, 28 +*his report to supplement the previousL.Ed. 106 (1953) (§ 1406(a) proceed- reports and respectfully recommends p
i
{

Case MDL No. 3 Document 2 Filed 04/27/15 Page 26 of 42
;
502 2:3 FEDERAL SUPPLEMENT
. favorable consideration «7 proposed § Judicial Conference of the United
3407 at the forthcoming —=eting of the States. .
) Ciiz? Cirveuil Judge Alfred Chief Judpe Joe E. Estes
. Z. Murrah, Chairman. Judge George H. Boldt
: Chiz:T Judge Sylvester J.
; . Ivan Judge William MM. Byrne
Chis Judge Thomas J.
Clary Judge William H. Becker ’
Chiz7 Judge Roszel C.
Thomsen Judge Edwin A. Robson
~ March 2, 1965
—
Part II States, upon determination by the
panel that the transfer will promote |
Congressman Celler rsquested the justice and efficient conduct of such |
views of the Department ¢ Justice. The suits. The transfer requires the con-
Department, in a letter dated January 7, sent of the court in which the suit is |
: 1966, and signed by Dezuty Attorney pending, and each action so transfer- .
General Ramsey Clark, fav:red the enact- red shall be remanded by the panel at
ment of the bill with tw: amendments, or before the conclusion of the pretrial |3 9 (1) excluding governmer: prosecutions proceedings to the district from which
i under the antitrust laws “rom the scope it was transferred. The panel may |
] of the bill, and (2) deleticn of the provi- separate any claim, cross claim, |
i sions of the oviginal bill requiring con- counterclaim, or third party claim and |	§ sent of the district court from which the vemand any of such claims before the |
| action is transferred beforz the transfer remainder of the achion is remanded. |i is made. This letter reac: as follows: 3 ) }
i “This is in response i: your request The coordinated or consolidated
] for the views of the Tepartment of pretrial proceedings shall ke conducted |
i Justice concerning H.R. 8276, a bill ~~ by a judge or judges assigned by the |H “To provide for the temp rary transfer judicial panel. The panel may request,
| to a single district for coordinated or for this purpose, the temporary assign-
consolidated pretrial rroceedings of ment of a circuit or district judge to
civil actions pending in different the transferee district by the Chief
districts which invelve one or more Justice of the United States or the
i common questions of Zact, and for chief judge of the cireuit. Proceed-
: other purposes.’ ings for the transfer of an action may
“The bill would add z new section be initiated by the judicial panel by
i 1407 io title 28, Unitez States Code, notice to the parties in all of the
{ which would permit ths transfer to a actions concerned of the manner, time
i single disirict for coordinated or con- and place of the hearing to determine i
i solidated pretrial precesiings of civil whether the transfer shall be made. |
| actions pending in diffzrent districts The concurrence eof four members of
1 which involve one or mere common the panel shail be necessary to any |	: questions of fact. Suck ransfor shall action of the panel. When actions
i be made by a judicial tinal on multi- have been transferred by order of the |i ® district litigation, consizzing of seven panel, no district court refusing toi circuit and district juizes appointed consent to the transfer of related
j . by the Chief Justice =I the United litigation may make zuy ovder for or i
i !
i: .

.
Case MDL No. 3 Document 2 Filed 04/27/15 Page 27 of 42
IK :
7 +
] TN BE PLUMBING FIXTURE CASES 502
; Cite ns 26S F.Supp. 484 (1663) y
4 I. permit discovery in conflict with the 5(b) of the Clayton Act (15 U.S.C. 16
Co . discovery proceedings in the transfer- (b)) tolls the running of the statute of
: red actions. limitations on their damage suits
A tien = = while the Government litigation is
: . AL present, there is no specific proceeding. Private plaintiffs may
provision governing the conduct of use discovery to uncover information
discovery and pretrial proceedings on relating only to damages or informa- .
a consolidated basis. The massive tion that we have already obtained
national discovery program, which vas through the use of grand juries, civilestablished in response to the un- investigative demands or informal
1 precedented number of electrical equip interviews. IMoreover, if we wish to
Tod onder he aumhamty of avoid such delay,	we yay be forced |
Supreme Court rule-making power, to share with private plaintiffs mn |
which in turn resulted in a delegation formation already in our. possession |
of authority to a coordinating com- oat oh prefer v keep confidential and |
mittee of judges for the purpose of tied di ne con rol > a oo |
working out an appropriate procedure solace Paring proceeding Whilefor handling common discovery private plaintiff 5 attorney. ie
problems. The bill is an outgrowth of exempting the Government from t 19 !
the experience gained under this legislation - may occasionally burden |
® national discovery program, and is an defendants because they may have fo	. . answer similar questions posed both |apparent attempt to codify some of by the Government and by private
| the steps taken thereunder, [For & parties, this js justified by the
i Equipment - Antitrust Cases: Novel relief in antitrust cases as quickly as
| Judicial Administration, 50 A.B.A.J. possible. To treat the Governmenti 621 (1264).] differently is not arbitrary, for the	purpose of the governmental suit
“This legislation was recommended normally differs from that of a private
by the Judicial Conference of the suit: the Government seeks to protect
United States. The Department of the. public from competitive injury,
Justice favors its enactment bui sug- while private parties are primarily
cests that it be amended in two Interested in recovering damages for
i respects. injuries already suffered. We there-
i «We believe that Government pros- fore recommend that the Government's
ccutions under the antitrust laws civil antitrust suits be exempted from
i should be excluded from the scope of is aaislation. On the other hand,i the measure. If the bill applied to e Government's damage suits should
such antitrust actions, it is anticipated - be Included, for the Government's put-
: that numerous private plaintiffs would pose in bringing such a suit is the
{ . file treble damage suits immediately same as that of a private party. Ac-
following the filing of a Government cordingly, it is suggested that a new
suit. In consequence, Governinent subsection (g) be added to section 1 i
i suits Tiled by this Department would of the bill to read as follows: :
; almost certainly be substantially “(g) Nothing in this section shall ii p delayed, often to the disadvantage of apply to any action in which the
® injured competitors who are awaiting United States is a complainantthe outcorne of the Government suit arising under the antitrust laws.
upon which to predicate their damage Antitract. laws’ as used herein H
actions. Furthermore there is no include those acts referred io in the :
i need for participation of injured Act of October 15, 1914, as amended,
: competitors at this stage since section (38 Stat. 730; 15 U.S.C. 12), and :

| + CaseVDLNo.3 Document2 Filed04/27/15 Page28of42
1
H .
1 also include the Act of June 19, 1936 |
! {49 Stat. 1526; 15 U.S.C. 13, 13a
3 and 13b) and the Act of September
: | 26, 1914, as added March 21, 1938
1 i (52 Stat. 118, 117, 15 U.S.C. 56);
i but shall net include section 4A of:
; the Act of October 15, 1914, as added
: July 7, 1955 (69 Stat. 282; 15:i U.S.C. iba).
i “Also, we believe that the provision )
i of the bill which requires the consent |
i of the district court from which an |
i action is transferred should be deleted.
® ; To require such consent seems super- |	. i fluous since seven circuit and district |
: judges must consider the proposed |
transfer and four members of the \
] panel approve it before it can take |
: place. Requiring the consent of the I
transferor district judge would give | °
} 2 veto power and in essence require
voluntary cooperation of all in order .
! to consolidate discovery proceedings. !
} “The Bureau of the Budget has
| advised that there is no objection to	the submission of this report from the
i standpoint of the Administration's
| program.”
|
|
® |

: CaseWDL No.3 Document 2 Filed 04/27/15 Page 29 of 42
® ~ district private civil treble damage anti-
: trust actions. 28 U.S.C.A. § 1407.
Before ALFRED P. MURRAH, .
Chairman and JOHN JMINOR WIS-
DOM, EDWARD WEINFELD, EDWIN
A. ROBSON, WILLIAM H, BECKER,
} . JOSEPH S. LORD, III, and STANLEY
+ A. WEIGEL, Judges of the Panel.
} : OPINION AND CRDER
PER CURIAM. )
On May 16, 1969, the following treble
damage antitrust action was commenced
in the United States District Court for
the Northern District of Illinois: Mi-
3 OL is SoNE 19S chael Kaplan and Walter Mrozinski, ete.v. American Standard, Ine, et al. (69 C :
1050). The action was brought by the |
In ve Multidistrict Private Civil Treble plaintiffs “on their own behalf as ulti- :
Banage Litigation Involving mate consumers of products manufae-
PLUMBING FIXTURES. pe tured by defendants and on behalf of all
No. 3. = other ultimate consumers of products
Judicial Panel on Multidistrict Litigation. manufactured by defendants.” From
July 30, 1969. the face of the complaint it cleariy ap-
peared that this was another of the
® more than 100 cases which comprise the ;
Procoedines on objection to order ct above-captioned litigation. On May 27,
oo A cL 5 aM ww. 1989, a conditional transfer ordert wastransfer. The Judicial Panel on MU entered transferring this case to the
district Litigation held that mn VIEW © Tastern District of Pennsylvania for co-
Savings from, and convenience of, €00% ordinated or consolidated pretrial pro-
dinated or consolidated pretrial proceed. ceedings pursuant to 28 U.S.C. § 1407. ;
Ings, additional Expense of counse: 3 The plaintiffs objected to the transfer : Nhfravel was cient orMadeloninor of their case and the conditional trans- @Gyi SR victor i Jer order was stayed “until further or- EN	pretrial conferences in multidistriet Pri aor of the Panel.” The plaintiffs have =
vate civil treble damage antitrust ace qo CE SANE the Panel that they
tions. do not desire 2 hearing with regard to
Order accordingly. their objections to the transfer. None
See also, D.C, 295 ¥.Supp. 83. of the other parties have requested a
hearing. In view of the nature of the :
plaintiffs’ opposition to the transfer and |
: Courls ¢=277.2 their affirmative waiver of 2 hearing,In views of savings from, and COT none will be required, . -	venience of, coordinated or consolidates
pretrial proceedings, additional expensz The plaintiffs do not contend that
of counsel's travel was insufficient 12 their case js different from tke other
preclude transfer from Illinois to Phils- cases In this litigation nor do they urge
delphia of pretrial conferences in mult. that common guestions of fact do not ex-
tL. See In re Gypsum Wallboard CUnges, — 2 miore complete discussion of the eon-
PESupp. — (Jud. Pan Mult. Fit. 1069) for ditional transfer order and its use.

\ |
» Case MDL No. 3 Document 2 Filed 04/27/15 Page 30 of 42	I
HE ist. They oppose the transis “or the
I } following reasons:
& ~. I. All of the plaintiffs a: Illinois= residents and transfer of -=is mat-
ter would Le an undue Zordship
- upon them.
2. Plaintifis are possessed «with lim-
: ited funds and transfer of this .
: matter would result in th: cost of
| a. * this litigation to he very :ustly to
Lo. . them.
: ‘ : "Since there normally is no rezzen for
the parties themselves to be prazent at
: : : pretrial conferences, the only expense
| and inconvenience the proposed :iransfer
| will cause is that necessitated -v coun-
| sel’s travel to Philadelphia for pretrial
conferences. This additional expense
| will be more than offset by savizgs from
: ’ and convenience of, coordinated or con-
solidated pretrial proceedings directed
- by the transferee judge. In re =intibiot-
ic Drug Cases, 235 F.Supp. 1422, 1404 |
(Jud.Pan.Mult.Lit.1968) “Of course, it |
Co : : is to the interest of each plaintiff lo |: . have all of the proceedings in #is suit |
handled in his district. But tz: Panel |
; must weigh the interests of ail the |
plaintiffs and all the defenda:ts, and :
® must consider multiple litigatiza as a. . whole in light of the purposes of the
law.” In re Library Editions =f Chil-
drens’ Books, 287 F.8upp. 385, 355 (Jud. |
Pan Mult. Lit.1968). Here {hz sheer i
number of cases involved, the suibstan- ; .
tial identity of factual issues and the po- |tentially conflicting class action claims|
require that all cases be transferred to .
: a single district for consolidated <r coor-
dinated pretrial proceedings und:r Sec-
tion 1407. Cf. In re Antibiot’: Drug
Cases, 289 F.Supp. 1403 (Jud.Pzx.AMult.
Lit.1969).
It is therefore crdered that th: objee-
: tion to the conditional transfer c-der of i
May 27, 1669 is overruled; the stay of
that order is hereby lifted; and t=: Clerk
of the Panel is directed to trans=’i that §
order forthwith to the Clerk :f the !
Eastern District of Pennsylvanic “or fin |
ing and distribution pursuant to Section {
1407. :
|

: CaseMDL No. 3 Document 2 Filed 04/27/15 Page 31 of 42
° |
In re Multidistrict Private Civil Trebls :
Damage Litigation Involving PLUMB.
: ’ ING FIXTURES. 3 \
’ Arntz Bros. Construction Co., et al. 3
Cs oF American Radiator & Standard Sani:
RE tary Corp., et al., California, Northern;
Civil Action No. C-69-117. i
No.8. = A
I Judicial Panel on Multidistrict Litigation}Jan. 8, 1970. iE
ici
The Judicial Panel on Multidistrict:
: Litigation held that where action’
“brought on behalf of members of class’
consisting of all general building con:
tractors in California was transferred for
Eastern District of Pennsylvania for co,
ordinated or consolidated pretrial pros
ceedings, question of whether action.
: might be maintained as class action”|
should be determined in transferee dis- |
trict. he
Stay of execution of transfer order.
® vacated, . Eg
1. Courts &277.2 ET
Resolution of potentially conflicting: |
class actions is best made by court to; |
which actions are transferred for coordi | .
nated or consolidated pretrial proceed: |ings. us ]
2. Courts €>277.2 |
Potential for conflicting or overlap | nN
ping class actions presents strong reason. | Refor transferring related actions to single ! E i
. district for coordinated or consolidated . ~~
pretrial proceedings including early pi ‘
olution of potential conflicts. ES
3. Courts ©=277.2 3
) Where action brought on behalf of. |
members of class consisting of all gener: |
al building contractors in California wal !
transferred to Eastern District of Penne
sylvania for coordinated or consolidated
. pretrial proceedings, question of wheth-
: er action might be maintained as class
action should be determined jn trans
[ : feree district, )

i Case MRL No.3 Document 2 Filed 04/27/15 Page 32 of 42
LC) : : : IN RE PLUMBING FIXTURES 243	k } Cite as 308 F.Supp. 242 (1670)
Before ALFRED P. MURRAH, Chair- sive, have been duly licensed to conduct |
man, and JOHN MINOR WISDOM, ED- business as a general building contractor
WARD WEINFELD, EDWIN A. ROB- (Class B-1) by the California contrac-
} QON, WILLIAM H. BECKER, JOSEPH tors State License Board, and their par-
} a, LORD, III, and STANLEY A. ent, subsidiary, and affiliated compa-
. WEIGEL, Judges of the Panel . nies”? i
: } The plaintiffs’ sole reason for oppos-
: OPINION AND ORDER —~ ing the proposed transfer of this action
- . . to the Eastern District of Pennsylvania
’ ) PER CURIAM. Lo is their helief “that the question of |
On October 16, 1969, the complaint ID whether plaintiffs’ action may be main-
the above-captioned civil action was filed {,:104 25 a class action on behalf of all
in the United States District Court for general building contractors and home
the Northern District of California. On goialgpers in the State of California is a
October 28, 1569, the Panel transferred question which should be determined by
~ this action to the Eastern District of a United States District Judge sitting in
Pennsylvania on the basis of the prior ooyieornin» They urge that if the ac-
~ hearings? and for the reasons stated In yj, jo transferred to the Eastern Dis-
the prior memoranda and orders trans- trict of Pennsylvania “the determination
{erring related actions to that district.? of the class action issue should be re-
During the automatic ten day stay of manded to a California eourt for deter-
execution 3 counsel for the plaintiff filed mination.”
& notice of opposition to the transfer.
Counsel later filed a response in opposi- [1-3] The contention that class ac-
tion to the proposed transfer but waived y;,, qeterminations should be left to the
® a hearing before the Panel. transferor court was first advanced in	This action is brought by 322 named {he Plumbing Fixture Litigation and re-
plaintiffs on their own behalf and “on jected by the Panel’ Qur experience
behalf of fellow members of a class since then has reinforced our belief that
which consist of all general building resolution of potentially conflicting class
i contractors in the State of California, as actions are best made by the transferee !
-defined in California Business and Pro- court.$ Indeed there are at least three
“fessional Code, Section 7057, who, at any other actions? with class action claims
“time during the period 1960-1966, inclu- which are in potential conflict with the :
: |
I. “The original hearing was held on August and Fresno, State of California.” (Plain- :
| "8, 1968 and a supplemental hearing was ’ tiffs’ compiaint, p. 21.) ’ :i ) held on October 16, 1968. 5. In re Plumbing Fixture Cases, 208 ¥. !
’ ‘2. In re Plumbing Fixture Litigation, 285 Supp. 484 (J.P.M.L.196S). i
=F.Supp. 83 (J.PAM.IL.196S), 298 F.Supp. 6. See, for example, In re Antibiotic Drugs, |
| © 483 (J.PM.L.1968), 288 F.Supp. 481 299 F.Supp. 1403, 1405-1408 (J.P.M.L. :
, © (J.PALL.1968) and 202 F.Supp. 793 (J. . 1869).
- PALL.1909). 7. Blake Construction Co., Inc. v. Ameri-
can Standard, Ime, et al. (filed in the
3. See Rule 12, Rules of Procedure of the District of Columbia and transferred to
Judicial Panel on Multidistriet Litigation, the Eastern District of Pennsylvania). :
| - 47F.R.D.377,380. i } . Lindy Bros. Builders, Inc. of Philadel- :phia et al. sv. American Radiator & :
A Alternatively, the class is defined “as Stendard Sanitary Corp. et al. (orig-
i s tonsisting of all such general building nally filed in the Jastern District of
} - eoniractors in the Counties of San Fran- Pennsylvania) and Sam Long, d/b/a Met-
| dged, Alameda, Contra Costa, Sun Mateo, repolitan Plumbing Co. et al. v. Ameri-	: Banta Clara, Santa Cruz, Monterey, San can Radiator & Standard Sanitary Corp.
| Benito, Marin, Sonoma, Solano, Mendo- et al. (originally {filed in the Northern! Citas, Napa, Sacramento, Yolo, Sutter, District of Geergia and transferred to
| ® Pivesr,SunJoaquin,Stanislaus,Merced, the Eastern District of Pennsylvania.) |

Case MDL No. 3 Document 2 Filed 04/27/15 Page 33 of 42
5 ¥
claims asserted hy these plaintiffs.
: } Such a potential for conflicting or over-
lapping class actions presents one of the
strongest reasons for transferring such
: related actions to a single distriet for
coordinated or consolidated pretrial pro-
: ceedings which will include an early res-
olution of such potential conflicts. Nor |
are we persuaded that there are unusual
. circumstances here which would make it
especially difficult for a judge sitting in
Philadelphia to resolve conflicting class |
action claims involving California par- |
[ ties. i
It is therefore ordered that the stay |
of execution of the transfer order of Qe- *
. tober 28, 1869 is hereby vacated and the }
Clerk of the Panel is directed to trans- .
J : mit forthwith a copy of that order to
the Clerk of the Eastern District of
Pennsylvania for filing and distribution
pursuant to 28 U.S.C. § 1407. . |

Cas) MDL No. 3 Document 2 Filed 04/27/15 Page 34 of 42
® . “
In re Multidistrict Private Civil Treble .- Damage Litigation Involving PLUME-
ING FIXTURES.
’ Oklahoma State Home Builders Assoc., )et al. v. American Radiator & Standard
- . Sanitary Corp., et al., W. D. Okl., Civ-
' 69-413.
. No. 3.
. . } Judicial Panel on Multidistrict Litigation.
Jan. 8, 1970. '
As Amended Jan. 285, 1970.
. The Judicial Panel on Multidistrict
Litigation transferred multidistriet
plumbing fixtures private treble antitrust
cases for coordinated pretrial proceed- :
ings to Eastern District of Pennsylvania
where consolidation of all actions in sin-
gle district would insure that evidence
obtained by government for use in its
criminal prosecution would be uniformly
} available and best way of insuring that
there was no conflict between Oklahoma
® ] class action claims and those in other
cases was to have a single judge make
necessary determinations, notwithstand-
ing that only questions of fact may have |concerned damages. *
Ordered accordingly.
See also D.C., 295 ¥.Supp. 33. :
1. Courts ¢=277.2 |
Private civil treble damage litiga- !
tion involving plumbing fixtures was :
transferred from Oklahoma to Pennsyl- ~
vania for coordinated and consolidated NS.
pretrial proceedings where transfer NG
would insure that evidence acquired by S
the government for use in criminal pros- ;
ecution would ba uniformly available and
best way of insuring lack of conflict be-
tween Oklahoma class action claims and |those in other casas was to have sincla !
judge make necessary determinations,
notwithstanding that only remaining
questions of fact may have concerned :
> .

Fo \
| Case MDL No. 3 Document 2 Filed 04/27/15 Page 35 of 42
{ : :	
| “
J : ee	mts mse te
359 311 FEDERAL SUPPLEMENT
damages. Fed.Rules Civ.Proc. rule 23, tion to the proposed transfer and moved
: 28 U.S.C.A. § 1407; Clayton Act, § 5(a), to vacate the conditional transfer order.
! . 15 U.S.C.A. § 16(a). The transfer was stayed pending further
| . order of the Panel.
) 2. Federal Civili Procedure <=1383 og
. : “ v Counsel for the plaintiff requested a
: It was not necessary for parties to hearing and the matter was set for hear-
. i multidistrict private civil treble damage ing at the next session of the Panel which
litigation involving plumbing fixtures to ag held in Philadelphia, Pennsylvania
participate in pretrial conferences held by on December 8, 1969. Counsel for the
transferee court in eastern district of plaintiff subsequently waived oral argu-.
: Pennsylvania; depositions of Oklahoma ment on his opposition to the proposed
parties and witness could be taken in transfer and submitted the issue on the
: Oklahoma, 28 U.S.C.A. § 1407(b). briefs and records?
The plaintiffs present several reasons
} * for keeping their action in the Western
District of Oklzhoma. Their principal	: ( ALFRED P. MURRAH, Chair- =~ RR . .
Before or vaCena s ED contention initially was that the primary:man, an 70 WN ~ Fe UAL BU- 0 guestions of fact relating to Hability have
WARD WEINFELD, EDWIN A. ROB- been determined as a matter of law under	hy a Tn T Ve -
. SON, WILLIAM H. BECKER, JOSEPH Section 5(a) of the Clayton Act and the	T N 3 ITT To oe .
S. LORD, III, and STANLEY A. only remaining questions of fact concern
WEIGEL, Judges of the Panel. damages which can be determined more
@ readily on a regional basis. In their
OPINION AND ORDER reply brief, the plaintiffs modified their
PER CURIAM position and now urge that since all the. FUSHLIN - . sa . .
evidence offered in the criminal trial in
A conditional transfer order! was en- the Western District of Pennsylvania will
tered on September 30, 1969 transferring eventually be available in the private
the above-captioned action from the West- actions, no further discovery as to liabil-
ern District of Oklahoma to the Eastern ity will be necessary. The defendants
District of Pennsylvania for coordinated emphasize that Section 5(a) will apply
) and consolidated pretrial proceedings un- only to the three (of sixteen) defendants
der 28 U.S.C. Section 1407. Within the who were convicted and then only if the
automatic ten day stay of execution of convictions are affirmed on appeal to the
that order the plaintiff filed its opposi- Third Circuit.
{. See Rule 12, Rules of Procedure of the essing of multidistrict litigation trans-
Judicial Panel on Multidictriet Litiga- , ferred to a single court under Section
tion, 47 F.R.D. 377, 320. 1407. The plumbing fixture litigation
is, however, the most massive multidis-
2. At the hearing Mr. Edward W. Mullinix, triet litigation—over 200 separate ac-
: representing all defendants, spoke briefly tions—being processed under Section
in support of the proposed transfer and 1407 and while several of Mr. Seanlon's
Mr. Paul D. Scanlon, counsel for the cases were filed and transferred more
plaintiffs in five actions originally filed than one year ago, new actions are being
in the Eastern District of Virginia and filed almost cvery day. In the past 90
transferred under Section 1407 to the days, 59 new actions have been filed and
Eastern District of Pennsylvania, spoke transferred to the Eastern District of
briefly in opposition to the transfer. Pennsylvania. It is of course neces-
Mr. Scanlon expressed his displeasure sary to integrate such newly Tiled ae
with the pace of pretrial proceedings. TINT the ee SR TA oT	gram _under-“We would also be distressed by uuneces- BETS Tia ot sist r vy nyN sary and aveidible delays in the proc- ett	i S15 ET NSA

: Case MDL No. 3 Document 2 Filed 04/27/15 Page 36 of 42
, . i
; LlSe . o ” jo IN RE PLUMBING FIXTURES as]Cite as 311 F.Supp. 349 (1079) H
[1] It can be expected that the evi- be avoided by ziving a new party the idence acquired by the Government for benefit of pric: coordinated or consoli- :
: ’ use in its criminal prosecution will be a dated pretrial rroceedings unless the new h
major source of evidence for tha plain- party joins in zzd is bound by such pro-
, tills seeking to establish the existence, ceedings. In r= Gypsum Wallboard, 303
’ scope and effect of the alleged conspiracy. F.Supp. 510 (J.2.31.1.1969).
‘ Rather than considering this factor as a . trian
reason for declining fo transfer a related A second reaion oifered oy plaintiffs	. . - . s > elon] 2 or 3 :
action, we think it strongly supports such counsel for ds ming enLex fetal	cous . supports the transfer o is action to
a transfer as the consolidation of all ae- . Pp So
tions in a single district will insure that the Eastern District of Pennsylvania.
. a 2 o > Cl : oe Lo This action includes a class action claim	" o Ov, 0 7 wt o a - — +. Hthe Gov eromen 5 evidence will be made qo pile 23, Federal Rules of Civil Pro-
available uniformly to all plaintiffs with cedure, which purportedly is restricted to	Tv £7 ’ 4 +7. ”. - > » !
a minimum oi inconvenience to the Gov- sales and purczases within the State of
: ernment or to the original source of the Oklahoma by members of a well defined ;
evidence.3 cluss* Counsz! urges that such a class
. rs cs action could be controlled and administer-
The existence of this pool of potentially . —- Lo
: . t evid h t eliminated f ed in the Wesiern District of Oklahoma	PO Tors onp he] 3 . aya [Fe] . :
relevant evi ence as not chiminated the without any ccaflict with the “shot gun” :need for further discovery and a €OM- class action el2ims in actions previously ;prehensive discovery and deposition pro- transferred to or filed in the Eastern
gram has been developed by the trans- District of P:xnsylvania. The determi- |
feree court. Thus it seems clear that nation of wk:ther the requirements of
there are many complex questions of fact Rule 23—parzicularly those of Rule 23
® which. will require substantial supple- (2) (3) and (4)—are fully satisfied :	| R vs FET N i
mental discovery and that the transfer of and whether this plaintiff should be en- |all related actions to a single court for titled to main-ain its action on behalf of
i purposes of such discovery and other the described class is for the district |
i pretrial proceedings will clearly promote court and ws merely note that the best |	» 3. ~ oy 3 rm 3 Yr ee To
i the just and efficient conduct of these way of insuring that there is no con-
| actions. flict between the class action claims in
i is action zzd those in other plumbing	& i Venter ten , this act d th ther plumbingan * the plaintiffs taeitlv ad. . Lo : .
| . } ounsel for ae pluntiits Laciuy 84- rinture cose: is to have a single judge	i ’ 3 ai scoveryg £ I PUNE
— tha Lae discovery gong On make the determinations necessary under	iladelphia is relevan: i is acti ; : . R
hilade phia is re evani Lo this ac oo Rule 23. Ir re Plumbing Fixture Cases,	Tr as suggested that the defendants - ~for he aas suggested T ! t the def lants 208 F.Supp. 434 (J.P.21.1.1968).	provide him with all discovery data pro-
© duced by them in connection with these [2] Finzly plaintiffs’ counsel urges
coordinated or consolidated pretrial pro- that the ira-sier of this action to the
| ceedings. Duplicitous discovery will not Eastern Dis-rict of Pennsylvania would
3. We do not mean to suggest how much of out the $i:te of OXluhoma who have :
the Government's evidence should be purchased 2 products described below
rade available to the private plaintiffs manufuctur+i hy the defendant corpoca-
or vider what eircumstances. We do tious in ti: peried in suit aed have SiE- ;believe that the just and efficient ron- tained dum:ize thereby as a result of the
duct of this multidistrict Hitization will conspiracy :ioged Larein, and who are in
be promoted by having a single juvdgs the ruin. <ither individually or by their
decide «I such questions. officers, irent, subsidiary, or affiliated
corporatizis builder wembars of the Ok-
4. The purported elass “consists of ap- Inhoma Si: Home Buildacs Association
g proximately five hundred {509) buildsrs and the Nutional ome Builders Ase
of home and apartment dwellings through- sociation.” (Complaint, Page 2)

| Case MD No.3 Document2 Filed 04/27/15 Page 37 of 42
K {	
i ~.
LJ : 352 211 FUDERAL SUPPLELIENT
’ not serve the convenience of “he plaintiffs feree judge. In re Antibiotic Drugs, 295
: and their witnessesS While there may F.Supp. 1402 (J.P.3L.L.1968).
i . be some inconvenience and i2ditional ex- The motion to vacate the conditional
pense caused by the transfer of this ac- transfer order of September 20, 1969 is
. LL. — Yani X 1 J.
. ' tion to the Eastern Distric: of Pennsyl- denied and the stay of the transter order	. . qs is vacated. 1 1 1 anel is
a vania, we believe that ther will be more vacate © ers © N J
: th fiset b a 4 4 directed to transmit that order forthwith	i Con anv — en- . gs
than OLISet by saving 1row. an conve to the clerk of the Eastern District of
ience of coordinated or coz:olidated pre- Pennsylvania for filing and distribution
: trial proceedings directed ay the trans- pursuant to 28 U.S.C. Section 1407.
1 : 5. Counsel seems concerned -iat all five of Oklahoma parties and witnesses ean
hundred plaintiffs snd ccootless other be taken in Qklahoma. We will, upon i
Oklahoma witnesses will = required to request of the transferee judge, designate .
go to Philadelphia for deposizions or other a judge to couduct pretrial depositions i
} pretrial proceedings. Howevar, there gen- taking place outside of the Eastern Dis-
erally is no necessity for ize parties to trict of Pennsylvania. 28 U.S.C. Section ¥
participate in pretrial cozZerences held 1407(b). I
by the transferee court e=4 depositions ||
.

or Sic So——
—— Cas N . . : i- e MDL No. 3 Document 2 Filed 04/27/15- Page 38 of 42 RE
o Co : !bi
4 - ) |: : !
c 1 ‘
i IN RE PLUMBING FIXTURES 1047 Ca . :Cite as 332 F.Supp. 1047 (1971) ;
then the Plaintiff shall have and recover :
MONSTER MUSIC et al., Plaintiffs, the difference between. what has been
v paid and the amount of “this judgment
ABBEVILLE RADIO, INC., Defendant. this date entered upon sworn vepresenta-R , tion by the Plaintiff's attorney as to theCiv. A. No. 1163-5. .	amount due.
United States District Court, : \
M. D. Alabama, S. D. :
July 28, 1971 ,
Calvin MM. Whitesell, Montgomery, :
Ala. for plaintiffs. a oo |Howard C. Oliver, Hobbs, Copeland, "4 LL -
Franco & Screws, Montgomery, Ala, for /4
defendant. y
’ ORDER
. Lo In re Multidistrict Private Civil Treble	VARNER, District Judge. Damage Litigation Involving PLUME.
The attorneys for the Plaintiffs and § ING FIXTURES.
Defendant appearing in open Court and § Leslie Phuabing Co. et al. v. Crane Co., -
having made known to the Court that by- et al, (N.D. Illinois Civil Action No.
agreement and consent they respectfully 71-1029) E.D. Pennsylvania Civil Ac
request the Court to vacate ifs previous tion No. 71-1558.
opinion, order, judgment and decree in No. 3.
this cause and upon consideration of this yygieia) Panel on Multidistrict Litigation. :and the other representations made fo o 5
the Court; it is, therefore, the ct. 20, 1971.
Order, judgment and decree of this )
Court that its previous opinion, order, Ce ATT dich riot
judgment and decree, D.C., 323 F.Supp. Liti The Judieil Panel on Auidisme :225, should be vacated and a judgment tt oY a or ans jo o i. -	: : istric istr ‘om which It was
entered for and in behalf of the Plain- . uv oo 0 sme a w ey - Ny ascpl ; , f . an Lransierrec FOL 2 "a Fertiffs and that the Plaintiffs have and TAM Cs o not © oe ea w fiere	: ‘ or asserted - retransfer was bias
recover of the Defendant in this cause ground ex oe vetrans or was plas' } -mreiudice of the tr i. .: .
judgment in the amount of $250.00 for or prejudice 0 e transferee trial judgeeach of them, or a total of 21,000.00 Motion for retransfer denied. ’
with full cocst of Court; with no attor- :
neys’ fees being ailowed. a.
It is further ordered, adjudged and 1. Courts 270.2
decreed by this Court that said jude- Retransfer of muliidistrict suit to Co
ment is suspended subject to the follow- gistrict from which it was transferred fo
ing stipulations: would not be granted where ground as- NG.
i.) That the Defendant pay to the serted for retransfer was bias or preju- < CGattorney for the Plaintiffs, commencing dice of the transferee trial judge. 28 ND
thirty (30) days from the date of this TU.S.C.A. §§ 144, 1407. i ~— ~
order, the sum of $100.00 cach month { :
until the sum of $800.60 shall have been 2. Courts CRTLL §
aid, the same to be in full satisfacti Co ) esaspad, HE ‘ o be in full 5 tistaction The Judicial Pare! on Muitidistrict |of this judgment and of all claims Le- yiication i hays :i os i Litigation is not authorized to acl as ap- ;	tween the pariies. . ,. I	pellate forum for every litigant disgrun- i
23 Ir the event that the Defendant tied by rulings of transferee judge. 28 :
should defouit in any of iis payments, US.CA. SY 144, 1407.

Ce. Case MDL No. 3 Document 2 Filed 04/27/15 "Page 39 of 42 :
@ »1048 332 FEDERAL SUPPLEMENT Co :
Before ALFRED P. MURRAH, Chair- on the assumption that plumbing con- ‘
man* and. JOHN MINOR WISDOM, tractors suffered no damage from the de-
EDWARD WEINFELD, EDWIN A. fendants’ alleged price-fixing. It is also H :
ROBSON, WILLIAM H. BECKER, asserted that Judge Harvey refused to Co
JOSEPH 8. LORD, IIL,* and STANLEY rule upon a motion to intervene filed by :
A. WEIGEL, Judges of the Panel. these plaintiffs in an earlier action. For
these reasons, plaintiffs insist that a dif-
OPINION AND ORDER ferent judge should be assigned to con- oo
PER CURIAM. : sider pretrial matters in this case. They \
The Plumbing Fivture Litigation pend- express their fear that unless the case is :. ee ye IA remanded by the Panel they may be trans-
ing in the Eastern District of Pennsyl- R :
vania before Judge Alexander Harvey II ferred to the Eastern District of Pennsyl- : |
now consists of approzimately 345 ac- vania under Section 1404(a) and required
tions. Approximately 325 actions have to go to trial before Judge Harvey. If al- :
been transferred to Judge Harvey in the lowed to proceed in the Northern Dis- 2
Eastern District of Pennsylvania pur- trict of Illinois, they assure us that they :
“suant to the Panels Rule 12, authorizing will “abide” by all discovery taken by the
the entry of Conditional Transfer Orders Philadelphia plaintifis, although some ;
a in tag-along cases. The Lesiie Plumbing additional discovery may he necessary.
case, originally filed in the Northern Dis-
trict of Illincis, was thought to be such 1,2] We find that the motion for re-
a tag-along case and a Conditional Trans- transfer must be denied. The plaintiffs
| 4 fer Order wes entered in that action in request that we decide their motion by :	May of 1971. After the expiration of passing upon their allegations of bias, and :
time for opposition to transfer under Rule indirectly upon the substantive rulings oo
12, the plaintiffs in this action submitted of Judge Harvey. Although we find little :
a motion to vacate which was rejected as merit in plaintiffs’ allegations, we think :
untimely. The plaintiffs then filed this they must pursue their remedy elsewhere. be
Motion to Retransfer the action to the Plaintiffs have attached an affidavit of
Northern District of Illinois. bias or prejudice to their motion, but they
ve ‘esen
Plaintiffs apparently concede the PS ey 28 USC. § 144presence of the statutory prerequisite to If plaintiffs seriously intend to press
transfer here and the motion to retrans- their allegations, they should present
fer is based, not on the absence ol com- their affidavit to Judge Ilarvey. _Sec-
“mon questions of fact, but on the aliega- tion 1407 does not, authorize	the. anol to	to ~
tion that Judge Harvey is biased against “Sot as an appellate forum ekanelo	overthe plaintiffs and all other plumbing con- var AWan Trp
tractors. In an affidavit stating the gat Spec dah 88-40grounds for their allegations, counsel for Iransieree LCE. oo
plaintiffs charges that certain rulings by It is therefore ordered that the plain-
Judge Harvey could only have been made tiffs’ motion for retransfer be denied. [: ) vod
* Although Judges Murrah and Tord were the consent of all parties, participated to
not present at the hearing they have, with in this decision.

- Case MDL No. 3 Document 2 Filed 04/27/15 Page 40 of 42
4 756 342 FEDERAL SUPPLEMENT
trial proceedings. After considering the the parties from voluntarily cooperating
responses of the parties and the argu- in the preparation of the presently pend-
ments presented at hearing, we decline ing cases for an early trial. :
leper rater at hiGime Oude 14 throne rtrd tha rater |
: of any party to move for transfer at a of the actions listed on the attached '
: later time or of the Panel to reconsider Schedule A be, and hereby is, denied, |
: E - transfer on its own initiative without prejudice to the right of anyoo : party to move for transfer at a later i
Not all parties to these actions have time or of the Panel to consider transfer )
responded to the order to show cause! at alater time on its own initiative.
but all those who have responded, includ- !
ing Oklahoma plaintiffs and many of the SCHEDULE A !
defendants in the Oklahoma actions, fa- Eastern District of Cklahoma ol
vor transfer to a single district. Three Ciyde D. Covey, etc. v. C. L T. Chil Action
of the Oklahoma defendants, Capitol In- Corporation, et al. No. 71-124
ternational Airways, C.LT. Corp. and Eu
WL Goodyear Tire and Rubber Co. have also “poration, et al. cL er No. CV-71-4543 indicated their preference for the West- Southern District of New York :
ern District of Oklahoma as transferee Craude C. Turner, etc. v. Capitol Clvit Action '
: district. They urge that the eyewitness- International Airways, Inc, et No. 71 Civ. 4709
E "es to the crash, the survivors and the de- a
fendants are scattered across the coun-
try ani that the Western District of
SE "Oklahoma is a central geographical fo- on .
oo rum in which this litigation might be
0 consolidated. The Oklahoma plaintiffs J) : xSHURE and the other defendants, McDonnell- —_ }
SO Douglas, The Bendix Corp. Firestone
BE Tire and Rubber and Hydro-Ai e, are —
= also agreeable to selection of that dis-
Ca trict as transferce district. In re PLUMBING FIXTURES = /.
SE he . LITIGATION. .
= Sd Although we think it clear that thes The State of North Carolina v. American	re : : i ot ; :
cae do share common ution	of fick [Trt BCE BS Nor
Clg 8 crash, there are too few actions at this arolina, Civil Action No. 2844.
Hy © point to justify transfer to a single dis- : : + No. 3.
Loi Ad trict for coordinated or consolidated pre-. ;41.01 panel on Multidistrit Litigation.
a. FRET trial proceedings. Because of the large. :
ST number of fatalities and serious injuries . May 5, 1972. |
Cad resulting from this crash, additional ac- : :
~ SE tions on behalf of passengers nnd crew : ‘ 1Laden - members are expected. Many of these The Judicial Panel on Multidistrict TY
Co Een will be filed and processed in the state Litigation transferred plumbing fixture f
RE2d courts, but it is likely that at least some case for coordinated or consolidated pre- 1a Sade A }. . of the additional actions will be filed in trial proceedings to Eastern District of A
RR EE © the United States District Courts Pennsylvania where approximately 370 o
vy oi Shere © throughout the country. We think it actions were pending in that District as Q(	Ci Jaan "premature to decide -the question of a part of the litigation and plaintiff
a Tae © transfer and to choose the transferee states fears that transferee court would N© dmeede. district until more actions have been not apply laws of circuit in which action . “4
aEh Cel filed, - This decision should not prevent was filed in deciding whether state could
Ei SEN ooh ‘No response has been received from plaintiff in the Southern District of New York action.
Ror ehLORE TH wT nT Te ’ Gi
gpdTRE een eevee RE TUT rae sr era OTRe	LE Sie RRR a ae© wT - .

ae Case MDL No. 3 Document 2 Filed 04/27/15 Page 41 of 42
IN RE PLUMBING FIXTURES LITIGATION 57 o
. Cite ax 342 F.Supp. 756 (1972) : oo
ting maintain treble damage action against vania for pretrial proceedings with two
2nd- defendants under provision of Clayton related actions pending in that district.?
Act were groundless. Since that time additional actions have
sfer | Order accordingly. been transferred ® and there are approx-
hed imately 370 actions pending in that dis-
ied, : trict as a part of the litigation. The
any 1. Action ¢=37 State of North Carolina recently filed an
iter a. } 4 Substantive law of transferor forum action against defendants in this litiga-
fer < will apply after transfer for coordinated tion in the Eastern District of North
or consolidated pretrial proceedings. 28 Carolina, seeking recovery as parens pa-
U.S.C.A. § 1407. triae on behalf of all individual consum- :
ers within the state and also as Rule 23
2. Courts 277.2 class representative on behalf of all gov-
: Plumbing fixtures case was trams- epnmental entities within the state.
ferred for ccordinated or consolidated
pretrial proceedings to the Eastern Dis- A conditional transfer order was en-
. trict of Pennsylvania where 370 actions tered in the North Carolina action by
’ were pending in that District as part of the Clerk of the Panel, acting pursuant :
the litigation and plaintiff state's fears to the Panel's Rule 12, 53 F.R.D. 119,
7 that transferee court would not apply North Carolina filed a timely opposition
laws of circuit in which action was filed to the proposed transfer and moved to
in deciding whether state could maintain vacate the conditional transfer order.
- treble damwiire notion against defendants Defendants opposed that motion and
under provicion of Clayton Act were urged transfer of the action to the East- :
: . groundless. Clayton Act, § 4, 15 U.S.C. ern District of Pennsylvania. At the in-
A. §15; 28 11.8.C.A. § 1407. itial argument on this matter North
. - Carolina did not dispute that its action :
: — was substantially similar to the actions
} . now pending before Judge Harvey. It - ‘
Before ALFRED P. MURRAH, Chair- 4i4 assert, however, that the proposed EEE
. man, and JOHN MINOR WISDOM, {. nofer might deprive it of a fair op- ;
EDWARD WEINFELD, EDWIN A. portunity to present its claim for relief, :
n : ROBSON, WILLIAM H. BECKER, jin that Section 1407 requires trans- Lo
JOSEPH S. LORD, III, and STANLEY ¢, only where it will “promote the just
A. WEIGEL, Judges of the Panel. and efficient conduct of the action.” ‘
: . 28 U.S.C. § 1407(a). [Emphasis adc.d]
OPINION AND ORDER ’ North Carolina argued that in its pre-
' PER CURIAM. oo vious decisions * the transferee court }dismissed claims similar to those assert-
In 1968 the Panel filed its initial ed in this complaint. And in reaching Ce
Ti oe. Opinion and Order in the Plumbing those decisions the transferee court is
t { 1 : Fixtures Litigation, transferring 37 ac- said to have interpreted the require- oo
z tions to the Eastern District of Pennsyl- ments of Section 4 of the Clayton Act, _
f { i * Judges Wisdom and Becker were unable to Mult.Lit.19¢"); 308 F.Supp. 242 (Jud.) ; attend the Pnnel hearing but ‘ave, with Pan. Mult. 1,ir. 1970) ; 811 F.Supp. 349
H the consent of all parties, participated in (Jud.Pun Mult.Lit. 1970) ; 332 F.Supp.
bo this decision, 1047 (7-LPan.	Mult Lit. 1971). )
) , {. In re Plumbing Fixtures Litigation, © 25 . .
$ F-Supp.33 (Jud.I'am.Mult Lit.1968). RP A a Su2. Ree In re Plumbing Fixtures Litigation, 381 (F.D.P'a.1970); Mangano v. Ameri-
\ 208 F.Supp. 4x3 (Jud.'anMult	Lit. can Radiator & Standard Sanitary Corp., Lo
; 1968); 298 F.Runr. 481 (Jud.Pan. Mult. 50 I"R.D. 13, aff'd, 438 F.2d 1187 (3d to
i Lit.1068); 302 P.vupp. 795 (Jud.Pan. Cir, 1971). Co . ’ :

« Case MDL No. 3 Document 2 Filed 04/27/15 Page 42 of 42
: 758 $42 FEDERAL SUPPLEMENT
16 U.S.C. § 15,4 less favorably to anti- transferee court has cxpressly affirmed mand o
trust plaintiffs than to courts of the This point.	Philadelphia	IouSng Au ! to the ¥
: transferor district and circuit.5 Accord- TRoTity	v. American Radiator & Stand- i Panel ©
ingly, North Carolina contended that ard Sanitary Corp., 309 F.Supp. 1053, i that co
transfer will result in the dismissal of its 1055 (E.D.Pa.1969), Since North Caro- i pleted ¥
claims as too remote in the plumbing fix- lina does not deny that its action is oth- ! wis vol
: tures chain of distribution to support re- erwise appropriate for transfer, it must | (reation
covery of damages while denial of trans- be transferred for pretrial proceedings | action,
fer will assure that the allegedly more with the other actions. ! amine
generous law of the transferor circuit is It is therefore ordered that the action, Fr fonda
: applied to its case. : State of North Carolina v. ‘American ment|
: After the initial hearing the Panel va- Standard Inc. et al, E.D. North Caroli- | in que
cated the conditional transfer order and na, Civil Action No. 2844, be, and the i M
CL reserved decision of the transfer ques- same hereby. is, transferred to the East- i A
tion to give the parties an opportunity ern District of Pennsylvania and, with
to obtain a ruling from the transferor the prior consent of that court, is as-
8 court concerning the standing of North signed to the Honorable Alexander Fede:
Carolina to bring this action.® Harvey II for coordinated or consolidat- |
RE Defendants now move for reconsidera- ed pretrial proceedings, pursuant to 28 | brok:	©" tion or clarification of the Panel's order. U.S.C. § 1407, with the related actions | ers
Their primary contention is that the pending in that district. | con
matter should be reconsidered and the ! nine
North Carolina action transferred. We ) i of U
have determined, on the basis of the min have	: briefs and arguments, that the motion ud por:
oo for reconsideration should be granted ita
“and the action transferred to the East-_ | oth!ern District of Pennsylvania. on
Hl SR LTR SSR In re FOUR SEASONS SECURITIES con
SN [1,2] The sole basis for opposing LAWS LITIGATION. | conSE transfer is North Carolina's fear that , ren
the transferee court will not apply the M. G. Development Co. v. Kollmeyer & bet
a. laws of the circuit in which its action Co, Inc, et al, W. D. Oklahoma, Civil i.
SRT was filed in deciding whether the state Action No. Civ-71-355.
EA can maintain a treble damage action No. 55.
: against these defendants under Section 4 Judicial Panel on Multidistriet Litigation. |
oo : of the Clayton Act. In our view these April 21, 1972.
" fears are groundless. ob Js.cloar that, | \the substantive law. of the unafurar i... i 1	Ln rum will apply after transfer,	Van Dis. Plaintiff in action which had been i :
PReic son 7 Barrack TE US. 613) 84 S.Ct. transferred for coordinated or consoli- !Sng 805, 1TT.Ed.2d 945 (1964). Indeed, the, dated pretrial proceedings sought re- TE
- os 4, , Section 4 provides: ‘ 5. In support of this contention, North !
A “Any person who shall be injured in Carolina cites South Carclina Council of A
. a y his business or property by reason of Milk Producers v. Newton, 360 F.2d 414 q #
Seals anything focbidden in the antitrust laws (4th Cir, 1966) and ABA, Antitrust De-
nid ; may sue tl -{or in any district court of velopments 1955-68, 280 n. 52. i
sel et the United States in the district in :
Ea . which the defendant resides or is found 6. Part of defendants’ argurasnt for recon-
p ih N or has an agent, without respect to the sideration of this order is based on the |“0 oo Sn amount in controversy, and shall re- © alleged ambiguity of the word “standing.”
BENE os cover three-fold the damages by him sus- In view of our disposition of the motion, |	EES vy tained, and the cost of suit, including a it is unnecessary to discuss this point
BESET reasonable attorney's fee. Oct. 15, 1914, further. ] I
ae ¢. 323,	§ 4, 38 Stat. 731.” b
i RAY . ¢