IN RE: "East of the Rockies" Concrete Pipe Antitrust Cases

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THE JUDICIAL PANEL EVENT
ON wore SEC
MULTIDISTRICT LITIGATION WITDITRCT ioatioy DORAPER Fa :
, Y Sam CLERK :
IN RE MULTIDISTRICT PRIVATE CIVIL )
TREBLE DAMAGE ANTITRUST LITIGATION) DOCKET NO. 12
INVOLVING CONCRETE PIPE )
OPINION AND ORDER DENYING REQUEST TO TRANSFER |
ACTION UNDER 28 U.S.C. §1407 TO THE CENTRAL
DISTRICT OF CALIFORNIA
BEFORE ALFRED P. MURRAH, CHAIRMAN AND JOHN MINOR WISDOM,
EDWARD WEINFELD, EDWIN A. ROBSON, WILLIAM H. BECKER, JOSEPH
S. LORD, III, AND STANLEY A. WEIGEL, JUDGES OF THE PANEL
PER CURIAM
On October 14, 1968 certain plaintiffs in actions then )
pending in the Eastern District of Pennsylvania and the :
Southern District of New York filed a motion with the Panel |
requesting the transfer of twenty-three cases to the Eastern
District of Pennsylvania for consolidated or coordinated
pretrial proceedings pursuant to 28 U.S.C. §1407. When -
this matter was set for hearing,	we included four additional
cases for consideration for transfer to the Eastern District
of Pennsylvania or to another district or districts. One of
these additional cases, State of New Mexico, et al. v.
American Pipe & Construction Co., et al., 1s presently
pending in the District of New Mexico.

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£0 a
® 2
Prior to the hearing, all parties in this case, with
one exception, filed a joint motion to transfer it to an
appropriate west coast court and to assign it to the
Honorable Martin Pence for pretrial purposes .1/ Even
assuming, as the parties now urge, that the claims in
this case arise from the alleged west of the Rockies
conspiracy and that some of the factual issues present
in it are common to the Ninth Circuit cases, we decline
to order such a transfer. In view of the fact that pre-
trial proceedings are nearly complete in the Ninth Circuit
cases, we do not believe that transfer of The State of New
® Mexico case at this time will promote the just and efficient
conduct of these actions.
IT IS THEREFORE ORDERED that the motion to transfer |
this case to the Central District of California and to
assign it to the Honorable Martin Pence for pretrial pro-
ceedings be and the same is hereby denied.
[ 1/ At the hearing, counsel suggested that the case betransferred to the Central District of California.

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JUDICIAL PANEL ON
MULTIDISTRICT LITIGATION
FILED |
ok Ed
THE JUDICIAL PANEL MAY 2 51963 CLE
PAIRICIA D, WILL FRR	MULTIDISTRICT LITIGATION SE ly
~OCHERK	TT
IN RE "EAST OF THE ROCKIES" CONCRETE )
PIPE ANTITRUST CASES ) DOCKET NO. 12
OPINION AND ORDER :
BEFORE ALFRED P. MURRAH, CHAIRMAN, AND JOHN MINOR WISDOM,
WILLIAM H. BECKER, JOSEPH S. LORD, III, EDWIN A. ROBSON,
STANLEY A. WEIGEL, AND EDWARD WEINFELD, JUDGES OF THE PANEL
WILLIAM H. BECKER, JUDGE OF THE PANEL :
General Factual Background
Certain plaintiffs and intervening plaintiffs, in civil :
treble damage antitrust actions pending in the United States :
District Courts for the Eastern District of Pennsylvania and the :
Southern District of New York, have moved for transfer under .
Section 1407, Title 28, U.S.C., to the Eastern District of Penn-
sylvania of the civil actions listed in the attached Schedule A.
On the initiative of the Panel an order was issued to the parties
to show cause why the civil actions listed in the attached Sched-
ule B should not be transferred under Section 1407. The product g
involved in each of those actions is described generally as con-
crete pipe.

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The filing of each of the affected actions followed the
return in the District of New Jersey of two criminal indictments
charging violations of the antitrust laws. These criminal ac-
tions, in that district, were given the numbers Cr. No. 9-66 and
Cr. No. 10-66. (None of the affected civil actions were filed in
the District of New Jersey.) The defendan's in these criminal
actions were convicted on pleas of nolo contendere.
Some of the plaintiffs in the affected civil actions are
end-users of concrete pipe and some are competitors of one or
more of the defendants.
® The indictment in Cr. No. 9-66 described the defendants,their states of incorporation, principal place of business and
short descriptive names as follows:
Principal
State of Place of Hereinafter
Name of Corporation Incorporation Business Referred to as
International Pipe and Delaware East Orange Interpace
Ceramics Corporation New Jersey
Lock Joint Pipe New Jersey East Orange Lock Joint
Company New Jersey
Kerr Concrete Pipe New Jersey Paterson Kerr
Company New Jersey
Martin Marietta Maryland New York Martin Marietta
Corporation New York
North Jersey Concrete New Jersey Irvington North Jersey
Pipe Co. Inc. New Jersey
Interpace is the successor to the concrete pipe business formerly
@® carried on by Lock Joint. Martin Marietta is the successor to the
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®
concrete pipe business formerly carried on by the Martin Company,
a Maryland corporation, and by American-Marietta, an Illinois
corporation, which merged in October 1961 to form Martin Marietta
Corporation.
The product "concrete pipe" was defined, in the indict-
ment in Cr. No. 9-66, to mean non-pressure pipe constructed of
concrete, either with or without metal components, to convey
water or sewage. The metal components were defined, in the same
indictment,	to mean steel rods, wire and mesh used in the manu-
facture of concrete pipe. The indictment charges that cement and
metal components account for 80% of the cost of raw materials used
® in the manufacture of concrete pipe; that the metal components
are the most costly ingredients; that over 75% of the cement and
metal components were produced outside of New Jersey. In this
indictment the defendants and their predecessors are charged
with an unlawful conspiracy in restraint of interstate trade and
commerce (in violation of Section 1, Title 15, U.S.C.) beginning
in August 1960, and continuing thereafter until at least April
1962. This indictment further charged the alleged conspirators,
including other individuals rot named as formal defendants, with
the following unlawful acts:
(a) submission of collusive non-competitive
prices for the sale of concrete pipe in Northern
New Jersey:
J
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_
(b) allocation and division of orders of
concrete pipe in Northern New Jersey among Martin
Marietta, Kerr, North Jersey and Lock Joint; and
(c) increasing fixing and stabilizing prices
at which concrete pipe was sold in Northern New
Jersey.
In Cr. No. 10-66 only Interpace, Lock Joint and Martin
Marietta were named as corporate defendants. The product in-
volved in that indictment was "concrete pipe" defined as low
pressure and non-pressure pipe (constructed of concrete and
metal components, having rubber gaskets and steel ring joints)
® and low pressure concrete pipe having concrete joints and rubber
gaskets. This "concrete pipe", the indictment charges, was used
to convey water, primarily for drinking and irrigation purposes,
and sewage for sanitation and similar purposes. The time period
of the alleged conspiracy, charged in Cr. No. 10-66, began in
1955 and continued at least until 1962. The unlawful overt acts
alleged to have been committed by the conspirators are similar
to those alleged in Cr. No. 9-66, supra.
In Cr. No. 10-66 the territory, in which the conspiracy
was alleged to be designed to be effective, was the "Eastern
United States" defined as all states lying east of the Rocky
Mountains (except Texas, Louisiana, and Mississippi), hence the
® description in the title "East of the Rockies."
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®
The indictment in Cr. No. 10-66 further alleged that,
during the period involved, Lock Joint (predecessor of Interpace)
and Martin Marietta were the principal manufacturers of concrete
pipe in the eastern United States; that Lock Joint then had plants
in New Jersey, New York, Connecticut, Maryland, South Carolina,
Florida, Michigan, Illinois, Missouri, Oklahoma, Kansas, Colorado,
Wyoming and Ohio; that Martin Marietta then had plants for the
manufacture of concrete pipe in the following states: Alabama,
Colorado, Florida, Georgia, Illinois, Indiana, Kentucky, Maryland,
Michigan, Missouri, New Jersey, New York, Pennsylvania and
Tennessee.
® At the time the motion to transfer these cases under Sec-
tion 1407 was filed there were more affected civil actions (13)
filed in the Northern District of Illinois than in any other dis-
trict; but there were far more plaintiffs in the 6 cases in the
Eastern District of Penneylvania. Nevertheless counsel for the
plaintiffs in the Northern District of Illinois, and others, con-
cede that the Eastern District of Pennsylvania is the logicatl
transferee district. In view of the number of plaintiffs in the
eastern United States, and the number of plaintiffs in the actions
in the Eastern District of Pennsylvania, counsel for the plain-
tiffs in the Western District of Missouri agree that the Eastern
District of Pennsylvania is the logical transferee district. And
® as stated hereinabove, counsel for the moving plaintiffs in actions
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®
in the Southern District of New York also agree that the Eastern
District of Pennsylvania is the logical transferee district, if
the actions are to be transferred elsewhere. |
Before creation of this Panel, the Co-Ordinating Committee
for Multiple Litigation, with concerned trial judges, conducted
hearings at Philadelphia and Chicago, as a result of which pre-
liminary coordinated discovery was recommended to explore the
existence of the relation between the cases in the several dis-
tricts. Under the orders of the Honorable John Morgan Davis,
United States District Judge of the Eastern District of Pennsyl-
vania, to whom all the cases in that district have been assigned,
[ these recommendations have been implemented and discovery is cur-
rent. In some of the other districts, this discovery has been
wholly or partially accomplished.
In the affected civil actions in the Eastern District of
Pennsylvania and in the Southern District of New York conflicting
class action requests have been sought. With one dissenting
opinion a class action issue in the Southern District of New York
has been determined adversely to the City of New York by inter-
locutory decision of the district court and of a Panel of the
Second Circuit Court of Appeals, No. 32555, decided April 10,
1969 (C.A. 2) F.2d (not yet reported).
The Common Questions of Fact
® These actions involve many common questions of fact. All
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®
are based on the two criminal indictments in the District of New
Jersey, one of which charged a conspiracy effective in most of
the states and concerned districts east of the Rockies. The
other indictment charged a conspiracy effective in the Northern
District of New Jersey. It is true that different products are
designated in the two indictments. But these differences do not
render the proposed transfers improper. They may or may not af-
fect the manner in which the transferee court conducts the pre-
trial proceedings. In re Plumbing Fixture Cases, Docket No. 3,
Judicial Panel on Multidistrict Litigation, 295 F.Supp. 33.
The complaints in all the affected actions contain al-
o legations similar to those in the indictments mentioned above.
: Although some of the complaints involve additional years and
additional allegations not found in the indictments with respect
to pressure pipe (said to be manufactured only by Interpace) and
with respect to a violation of Section 2, Title 15, U.S.C., never-
theless the common conspiratorial questions of fact respecting
price fixing, allocation of orders and collusive bidding, among
others, remain.
Furthermore, in addition to these common conspiratorial
questions of fact there are many more common questions of fact in
the affected civil actions. The additional common questions of
fact include, among others, the following:
(1) question of fraudulent concealment,
® necessary to toll the statute of limitations;
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®
(2) the several factual questions under
Rule 23, F.R.Civ.P., which must be resolved to
determine the propriety of the many and con-
flicting class action requests; and
(3) the many economic questions of fact
affecting prices in the absence of conspiracy;
including, for example, methods of manufacture,
prices of steel products and cement used as com-
ponents, and production costs, none of which are
unique local market questions.
Counsel for the defendants, opposing transfer, argue that
é the criminal indictments are limited in their averments of time
0 periods, parties, products, geographic markets and conspiracy
allegations, and are not as broad as the complaints in the civil
actions. One answer to these arguments is that the plaintiffs
are not limited in their bases of civil actions by the particular
averments of the indictments.
Treble damage antitrust actions may be maintained without
an indictment and without conviction or other government pro-
ceeding. A fortiori, when there has been a government action,
private treble damage civil plaintiffs are entitled to the
statutory remedial assistance of the government action [such as
the tolling of limitations under Section 5(b)] despite difference
tn time periods, conspiratorial details and parties, provided
@
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@
there is substantial identity of subject matter. There is such
identity when the private complaint is based in whole or in part
on any matter complained of in the government action. Section 16,
Title 15, U.S.C. Leh v. General Petroleum Corp., 382 U.S. 54, 86
S.Ct. 203, 15 L.Ed.2d 134, l.c. 138; Minnesota Mining & Mfg. Co.
Vv. New Jersey Wood Finishing Co., 381 U.S. 311, 85 S.Ct. 1473,
14 L.Ed.2d 405. Cf. State of Michigan v. Morton Salt Co., 259
F.Supp. 35, l.c. 55, affirmed sub. nom. Hardy Salt Co. v. State
of Illinois (C.A. 8) 377 F.2d 768, cert. den. 389 U.S. 912, 88
S.Ct. 238, 19 L.Ed.2d 260. In the Leh case, supra, the Supreme
Court expressly approved the "substantial identity of subject
( matter" rule announced in Union Carbide & Carbon Corp. v. Nisley
: (C.A. 10) 300 F.2d 561, l.c. 670, app. dism. sub. nom. Wade v.
Union Carbide & Carbon Corp., 371 U.S. 801, 83 s.Ct. 13, 9 L.Ed.
2d 46, and rejected the narrow rule of Steiner v. 20th Century-
Fox Film Corp. (C.A. 9) 232 F.2d 190. The rule of the Leh case
shows that the argument of defendants in these cases is not rele-
vant and not sound.
In light of the Leh case it would be inappropriate to
sustain the defendants in their technical view that differences
between the underlying indictments and the civil complaints in
respect to geographic areas in which the conspiracy is operative,
and in respect to time periods, conspiratorial details and parties,
somehow militate against transfer under Section 1407. Genuine
®
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®
common questions of fact do not depend upon the limits or breadth
of the indictments or convictions in any case.
Defendants urge that there are no common questions of fact
in these cases because there are only local markets for delivery
of concrete pipe, since the pipe can economically be delivered
only a few miles beyond the point of manufacture. Assuming this
to be true, the two major defendants, according to the indictments,
found this to be no barrier to multi-state organization of its in-
dustrial activity in producing, selling and delivering the pipe to
many "local markets". Further, in the view of the government, the
major defendants found the delivery problem no barrier to multi-
® state conspiratorial activities affecting a great number of local
markets. The defendants in the criminal actions, by pleading
nolo contendere, chose not to challenge this view of the government
by trial on the factual issues. The plaintiffs in the civil actions
have the right to raise similar questions of fact.
As in many of the instances of multi-district litigation,
"small defendants" oppose transfer of actions in which they are de-
fendants on special grounds of alleged excessive costs. It is by
no means clear that the small defendants' interest of overall costs
would be served by denying transfer of the claims for relief against
them. It is clear, however, that the transferee court can exercise
its discretion in scheduling pretrial proceedings in a manner which
will protect the legitimate interests of small defendants in the costs
®
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®
of litigation. Cf. In re Plumbing Fixture Cases, supra, 295 F.Supp.
at page 34.
Except in respect to the New Mexico action, it is found
that transfer of these affected actions to the Eastern District of
Pennsylvania for consolidated or coordinated pretrial proceedings
will be for the convenience of parties and witnesses and will pro-
mote the just and efficient conduct of such actions.
The New York Class Action Question
As stated above, in the affected actions pending in the
Southern District of New York, the district court has ruled ad-
® versely on a request for an interlocutory class action determina-
tion. A panel of the Second Circuit Court of Appeals has, by a
divided vote, held this interlocutory determination unappealable.
Until these class action issues are no longer subject to early ap-
pellate review in the Second Circuit and no longer subject to re-
view by extraordinary writ or by certiorari, ruling on the motion
of transfer of these cases pending in the Southern District of New
York should be deferred. So action will be stayed in those cases
until further order of the Panel. At an appropriate time the multi-
district class action conflicts should be given special consideration
by the Panel. Cf. In re Multidistrict Private Civil Treble Damage
Litigation Involving Plumbing Fixtures, Docket No. 3, Judicial Panel
on Multidistrict Litigation, F.Supp. (filed December
@ 27, 1968).
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®
The New Mexico Case
Because counsel agree that the New Mexico case is not a
part of the alleged "East of the Rockies" conspiracy, transfer of
that case should be denied.
The Colorado Cases
The affected actions in the District of Colorado differ
in some respects from the other cases, but many common questions
of fact remain. Those cases should be transferred because there
are many common questions of fact in those cases and the remain-
ing affected cases. Transfer should not be denied because there
® are additional questions of fact in the Colorado cases.
The Honorable John Morgan Davis is willing to accept trans-
fer of any of the affected civil actions pending in districts other
- than the Eastern District of Pennsylvania. The United States Dis-
trict Court for the Eastern District of Pennsylvania has consented
to the transfer of any of the affected civil actions and the as-
signment of any of the actions to Judge Davis, as shown by the
consent attached hereto signed by Chief Judge John W. Lord, Jr.,
for that Court.
For the foregoing reasons, it is hereby
ORDERED that all civil actions listed in the attached
Schedules A and B except those pending in the District of New Mexico
® and in the Southern District of New York be, and they are hereby,
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®
transferred to the Eastern District of Pennsylvania pursuant to
Section 1407, Title 28, U.S.C., and assigned to the Honorable John
Morgan Davis, United States District Judge. It is further
ORDERED that transfer under Section 1407, Title 28, U.S.C.,
of the civil action pending in the District of New Mexico, listed
in Schedule B attached, be, and it is hereby, denied. It is
further |
ORDERED that ruling on the transfer under Section 1407,
Title 28, U.S.C., of the civil actions pending in the Southern Dis-
trict of New York, listed in Schedule A attached, be, and it is
hereby, stayed until further order of the Panel.
® |
®
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MARGINAL NOTES
1. A similar indictment alleging a similar conspiracy in ten :
states "West of the Rockies" led to the filing of similar
multidistrict litigation in the Ninth Circuit and others.
On the recommendation of the Co-Ordinating Committee for
Multiple Litigation, pretrial proceedings in these "West
of the Rockies" cases in the Ninth Circuit were coordi-
nated (before Section 1407 was enacted). This coordina-
tion was managed by the Honorable Martin Pence, Chief Judge
of the United States District Court for Hawaii. For this
purpose, Judge Pence was assigned, by the Honorable Richard
H. Chambers, Chief Judge of the Ninth Circuit Court of Ap-
peals, to all districts in which these cases were pending.
Practically all of the "West of the Rockies" multidistrict
litigation has been efficiently terminated as a result of
this coordination under the judicial supervision of Judge
Pence (with the assistance of the Honorable George H. Boldt,
Judge of the United States District Court for the Western
District of Washington). In coordinating the pretrial pro-
® cedures Judge Pence and Judge Boldt employed a great many	of the procedures recommended by the Co-Ordinating Committee
for Multiple Litigation, including central document deposi-
tories. These procedures are described in the Manual for
Complex and Multidistrict Litigation.
2. See schedule of plaintiff movants attached.
3. If there is, as claimed by plaintiffs, an overall unlawful
multi-state conspiracy affecting a large number of local mar-
kets, in which small local producers join, each small local
producer is responsible for the conspiratorial activities
of all on the basis of agency. McCandless v. Furlaud, 296
U.S. 140, 56 s.Cct. 41, 80 L.Ed. 121; Standard 0il Co. of
Cal. v. Moore (C.A. 9) 251 F.2d 188, cert. den. 356 U.S.
975, 78 S.Ct. 1139, 2 L.Ed.2d 1148. Local markets and local
conspiracies are not synonymous.
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Case MDL No. 12 Document 2 Filed 04/29/15 Page 17 of 32
: SCHEDULE A
@ sm vrsmuer or pisyLuaas
1. City of Philadelphia, et al. v. International Civil Action
Pipe & Ceramics Corp., et al, No. 43008
2. ioard of County Road Commissioners of tie Civil lection
County of Wayne « Lity of Letroit v. 0. 43528
International Pipe « ieranics Corp.,
et al.
3. uity of skron, City of Cleveland and Civil fection
County of Summit v. International Pipe wo. 44421
& Ceramics cvorp., et al.
4. City of rocuester, County of Lrie and Civil letion
vity of Buffalo v. International Pipe so. Ou-1212
& Ceramics Corp., et al.
5. State of slaska v. International Pipe & Civil “ction
Ceramics Corp., et al. 0. Vu 104
¢. ocean weasing Coru., et al. v. International vivil Action
Pipe %& Ceramics Corp., et al. Zo. 06-1211
@ iuhedDISTRICK UF LLLOLS
J. ietropolitan Sanitary uvistrict of Greater civil rSction
Chicago, etc., et al. v. .lartin .iarietta 20. 07 LU CC4
Corp., et al.
t. City of harvey, Illinois, et al. v. lartin Civil sction
i.arietta Corp., et al. a0. 7 0 711
J. lietropolitan St. Louis Sewer uUistrict wv. ~ Civil Action
tlartin ilarietta Corp., et al. no. 67 L 712
10. Village of ilinsdale, 1llinois v. !liartin Civil /fetion .
tarietta Corp., et al. No. 67 C 2165
11. (ity of Gary, Indiana v. itartin iarietta Civil Action
Corp., et al. no. 67 C 2164
12. Sanitary District of tne City of Gary, Civil Action
Indiana v. Martin Marietta Corp., et al. Jo. 07 C 2166
13. The County of Cook v. Martin ilarietta Civil Action
Corp., et al. no. 67 C 706

Case MDL No. 12 Document 2 Filed 04/29/15 Page 18 of 32
-2 =
@® NORTHERN DISTRICT	OF ILLINOIS (CONTINUED)
14. Louisville and Jefferson County Metropolitan Civil Action
Sewer Listrict v. Martin Marietta Corp., No. 67 C 713
et al.
15. Dover Construction Co., et al. v. Martin Civil Action
Marietta Corp., et al. No. 67 C 703
16. Nathan Yorke, assignee, etc. v. Martin Civil Action
larietta Corp., et al. Ho. 67 C 704
17. State of Connecticut v. Martin Marietta Civil Action
Corp., et al. & International Pipe & No. 67 C 1132
Ceramics Corp., et al.
1s. State of new Jersey v. bkartin Marietta Civil Action
Corp., et al. No. 67 C 1563
19. Washington Suburban Sanitary Commission Civil Action
v. ilartin farietta Corp., et al. fo. 67 € 1451
SUUTHERN DISTRICT UF WEW YORK
® 2u. State of lew York v. International Pipe & Civil ActionCeramics Corp... et al. No. 67 Civ. 1642
21. ‘the City of i.ew York, etc. v. International Civil Action
Pipe & Ceramics Corp., et al. © tlo. 07 (dv. 1095
BISTALCTOF iin TLAIL
22. The fayor and City Council of Baltimore Civil Action
v. Jartin :larietta Corp., et al. wo. 13964
23. Baltimore County, liaryland v. ‘dartin Civil Action
Marietta Corp., et al. ro. 15965
24, State of 'laryland v. Martin Marietta Civil Action
Corp., et al. do. 19110
25. Anne Arundel (ounty, flaryland v. iiartin Civil ction
.iarietta Corp., et al. No. 19834
26. County Coumissioners for Cecil County, Livil Action
viaryland v. .iartin ilartetta Corp., et al. ho. 19833

Case MDL No. 12 Document 2 Filed 04/29/15 Page 19 of 32
C3.
® ISERICT OF MARYLAND (CUNTINGEL)
27. ‘llontgomery County, ::aryland v. .artin larietta Civil Action
Corp., et al. wo. 19835
WESTERLISTRICY OFMISSOURT
2... fansas City, ‘issouri v. liartin Farietta Civil scetion
Corp., et al. lio. 16458-4
29. Udell-Niles Concrete Products Co. v. Civil Action
Marietta Corp., et al. to. 16504--2

Case MDL No. 12 Document 2 Filed 04/29/15 Page 20 of 32
C SCHEDULE B
EASTERW DISTRICTOF KENTUCKY
1. Commonwealth of Kentucky, et al. v. lartin Civil Action
Marietta Corp., et al. No. 296
LISTRICL OF COLORALOQ
2, City and County of Denver v. International Civil Action
Pipe and Ceramics Corp. No. 67 C 630
3. Coppco, Inc. v. International Pipe and Civil Action
Ceramics Corp. Ro. 67 C 472
DISTRICT OF NEW .EXICO
4, State of dew liexico, et al., v. American Civil Action
Pipe and Construction Co., et al. No. 7183

Case MDL No. 12 Document 2 Filed 04/29/15 Page 21 of 32
SCHEDULE OF MOVANT PLAINTIFFS
I. Plaintiffs and Intervenor Plaintiffs in
Actions Pending in the Eastern District
of Pennsylvania
City of Philadelphia, School District of Philadelphia,
Allegheny County Sanitary Authority and Allegheny
County v. International Pipe and Ceramics Corporation,
et al., Civil Action No. 43008
City of Pittsburgh
Commonwealth of Pennsylvania
Board of County Road Commissioners of the County of
Wayne and City of Detroit v. International Pipe and
Ceramics Corporation, et al., Civil Action No. 43528
State of Michigan
® City of Madison Heights
City of Akron, City of Cleveland and County of Summit
Vv. International Pipe and Ceramics Corporation, et al.,
Civil Action No. 44421
State of Ohio
State of Alaska v. International Pipe and Ceramics
Corporation, et al., Civil Action No. 68-154
State of Alaska
Ocean Leasing Corporation and those plaintiffs listed
on Exhibit "A" v. International Pipe and Ceramics
Corporation, et al., Civil Action No. 68-1211
American Apartments, Inc.
Amherst Leasing Corp.
Annapolis Leasing Corp.
Arcadia Leasing Corp.
Argentine Leasing Co.
Atlantis Leasing Corp.

Case MDL No. 12 Document 2 Filed 04/29/15 Page 22 of 32
Bel-Air Leasing Corp. Kentucky Leasing Co.
Belt Parkway Construc- LaFrance Leasing Corp.
tion Corp. : Lincoln Leasing Corp.
Birch Leasing Corp. London Leasing Corp.
Brazilia Leasing Co. Maple Leasing Corp.
Buick Leasing Corp. Massachusetts Leasing Co.
Cadillac Leasing Corp. Mexico Leasing Corp. |
Cambridge Leasing Corp. Minnesota Leasing Corp.
Canada Leasing Corp. Missouri Leasing Co.
Carolina Gardens, Inc. Montauk Leasing Corp.
Citadel Leasing Corp. Nautilus Leasing Corp.
Colgate Leasing Corp. Nebraska Leasing Co.
Colombia Leasing Co. Newport Leasing Corp.
Copenhagen Leasing Corp. North Carolina Leasing Co.
Cornell Leasing Corp. Northwestern Leasing Corp.
Country Leasing Corp Oak Leasing Co.
Dakota l.easing Co. Ocean Leasing Corp. r
Danbury Leasing Corp. Oxford Leasing Corp.
~ Darthmouth Leasing Corp. Panama Leasing Corp.
[ The Lefrak Organization, Pennsylvania Leasing Corp.
Inc. d/b/a Delaware Peru Leasing Co.
Leasing Co. Plymouth Leasing Corp.
District Leasing Corp. Pontiac Leasing Corp.
~~ Dodge Leasing Corp. Portland Leasing Corp.
Dover Leasing Corp. Purdue Leasing Corp.
Earth Leasing Corp. Queens Leasing Corp.
Elm Leasing Corp. Regent Leasing Corp.
Ford Leasing Corp. Riviera Leasing Corp.
Forest Hills Leasing Corp. Road Leasing Corp.
Garden Leasing Corp. . Rome Leasing Corp.
Georgetown Leasing Corp. Surf Leasing Corp.
Grand Leasing Co. Syracuse Leasing Corp.
‘Greenwich Leasing Corp. ~ Town Leasing Corp.
Hampton Leasing Corp. Uess Leasing Corp.
Hartford Leasing Corp. Utah Leasing Co.
Harvard Leasing Corp. West Point Leasing Corp.
Hollywood Leasing Corp. Westport Leasing Corp.
Illinois Leasing Co. - Wisconsin Leasing Co.
Indiana Leasing Co. Wyoming Leasing Co.
International Leasing Corp. Yaille Leasing Corp.
Iowa Leasing Co.
C Kansas Leasing Corp.

Case MDL No. 12 Document 2 Filed 04/29/15 Page 23 of 32
City of Rochester, County of Erie and City of Buffalo v.
International Pipe and Ceramics Corporation, et al,,
‘Civil Action No. 68-1212
II. Intervenor Plaintiffs in City of New oo
York v. International Pipe and Ceramics
Corporation, et al., Civil Action No.
1698
State of Alaska
City of Tampa
City of Blaine
Village of Circle Pines
City of Cleveland :
Allegheny County
City of Philadelphia
Board of County Road Commissioners of the County of Wayne '
Allegheny County Sanitary Authority
® School District of Philadelphia
City of Detroit
City of Pittsburgh
. State of Ohio
County of Summit
Passaic Valley Water Commission
City of Buffalo
County of Erie -
City of ‘Hastings
City of Rochester ‘
Commonwealth of Pennsylvania
State of Michigan
Commonwealth of Massachusetts
City of Madison Heights
Dade County Board of Public Instruction

Case MDL No. 12 Document 2 Filed 04/29/15 Page 24 of 32
JUDICIAL PANEL oN
® MULTIDISTRICT LINGATION
FILED
IN THE UNITED STATES DISTRICT COURT MAY 2 31969
FOR THE
EASTERN DISTRICT OF PENNSYLVANIA PATRICIA	D. WILL
~ CLERN rd
MULTIDISTRICT PRIVATE CIVIL TREBLE DAMAGE ANTITRUST LITIGATION
INVOLVING CONCRETE PIPE
CONSENT OF TRANSFEREE COURT
The United States District Court for the Eastern District
of Pennsylvania does hereby consent to the assignment of the
cases involved in the above-described litigation to the
Honorable John Morgan Davis for coordinated or consolidated
® pretrial proceedings pursuant to 28 U.S.C. $1407. a Pas
; 0) 4
x GL 5or on W. Lord, J 77
Chief Judge
, \Y|2	Date: ~

Case MDL No. 12 Document 2 Filed 04/29/15 Page 25 of 32
© i7iAl PANEL ON
C) Li. T UTIGATION
THE JUDICIAL PANEL iLED
- ON
MULTIDISTRICT LITIGATION Jn 291568
PATRICIA D. WILT
IN RE "EAST OF THE ROCKIES" CONCRETE ) CLERK
PIPE ANTITRUST CASES ) DOCKET NO. 12
CONCURRING OPINION
BEFORE ALFRED P., MURRAH, CHAIRMAN, AND JOHN MINOR WISDOM,
WILLIAM H. BECKER, JOSEPH S. LORD, III, ZDWIN A. ROBSON,
STANLEY A, WEIGEL, AND EDWARD WEINFELD, JUDGES OF THE PANEL
WEIGEL, J., Concurring
® The record in this matter makes it clear that a very
substantial amount of discovery in each case will be pertinent
only to those cases brought in the same district. This accen-
tuates the question as to whether transfer for coordinated or
consolidated pretrial proceedings will, in fact, "be for the
convenience of parties and witnesses and will promote the just
and efficient conduct of such actions." 28 U.S.C. § 1407. If
we are to order transfer, the statute requires us to determine
that the answer to that question, includ .ng each of its four
elements, is in the affirmative.
The cases here involve non-pressure pipe for sewers and
culverts. Because of the difficulty of c<ransporting such pipe
and because of the ease of entry into the industry, non-pressure
o pipe is sold in distinctly local markets by competitors with
plants in those areas. Only two defendants, Interpace and

Case MDL No. 12 Document2 Filed 04/29/15 Page 26 of 32
® Martin Marietta, sold such pipe throughout the area "East of
the Rockies." Martin Marietta had 67 plants in the area;
Interpace, 36 permanent plants and 16 temporary ones. All the
plaintiffs allege that these two defendants conspired to fix
prices and to allccate markets throughcut the region, and imple-
mented their scheme through various local conspiracies.
Plainly, then, the cases do present some common questions
of fact, i.e., those concerning region-wide industry conditions
as well as concerning the existence and local effect of the
alleged broad conspiracy between Interpace and Martin Marietta.
Even so, much--probably most--of the pretrial discovery and
proceedings will concern local witnesses, local records and
® local aspects of the alleged conspiracies. Such matters are
best handled by the local United States District Courts.
If the statute required all pretrial proceedings to be
conducted by the transferee court, then the case against ordering
transfer would be compelling. However, it is manifest from the
statute and its legislative history that the Panel may order
remand to the transferor courts for local discovery. Subsection
(a) of 28 U.S.C. § 1407 provides, in part, that "[elach action
| so transferred shall be remanded by the Panel at gor before the
conclusion of such [joint] pretrial proceedings to the district
from which it was transferred .... " (Emphasis added.) The
Judiciary Committee of the House of Representatives cbserved
with regard to subsection (a):
® [I]n most. cases there will be a need forlocal discovery proceedings to supplement
- 2 =

Case MDL No. 12 Document2 Filed 04/29/15 Page 27 of 32
® coordinated discovery proceedings,
and ... consequently remand to the
originating district for this pur-
pose will be desirable.
H.R. Rep. No. 1130 90th Cong., 2d Sess. 4 (1968)
This is not to say that the provisions for remand justify
anything less than the most careful assessment of the pros and
cons of transfer. The statutory objectives are not necessarily
served by requiring joint pretrial whenever some--even many--
questions of fact are common to a large number of cases. In
some such cases, if not in these at hand, coordination and
consolidation may impair, not further, convenience, justice and
efficiency. To put it in other words, neither the convenience
of witnesses and parties nor the just and efficient conduct of
® actions are served, ipso facto, by transfer just because there
are common questions of fact in the civil actions involved.
There are a number of inherent inconveniences in transfers
for coordinated or consolidated pretrial. Some plaintiffs are
temporarily deprived of their choices of forum and some defen-
dants may be forced to litigate in districts where they could
not have been sued. Considerable time and trouble are involved
in the sheer mechanics of transferring and remanding. : After
transfer, the process of segregating the pretrial matters which
should be remanded for handling by the transferor courts may
be time-consuming as well as subject to reasonable disagreement.
Since remand must be by order of the Panel, the Panel may have
® to hold further hearings to resolve disagreements among the
parties.
- 3 =

Case MDL No. 12 Document2 Filed 04/29/15 Page 28 of 32
® The basic question before the Panel in each proceeding
looking to coordinated or consolidated pretrial is, then,
whether the objectives of the statute are sufficiently served
to justify the necessary inconveniences of transfer and remand.
Many factors are relevant to the answer. Socme will be appli-
cable to all proceedings under the statute; some will not.
Some will count heavily in some proceedings; lightly in others.
It will be useful--for illustration, if nothing more--to artic-
ulate some of these considerations.
How many common questions of fact are there? What is
their nature? How many cases are presently and prospectively
Lavolved? What is the geographical location of the districts
® in which the cases pend? If it is anticipated that further
cases will be filed, in what districts? Who are the principal
witnesses in the cases and where do they reside? What detri-
ment, financial or otherwise, will be imposed upon any of the
parties by ordering transfer? Will transfer result in a
substantial saving of duplicative work? Will transfer usefully
avoid conflicting rulings in the pretrial proceedings of the
cases involved? Can many of the advantages of transfer be
worked out by cooperation among counsel without transfer?
Are pretrial proceedings already far along in any one or more of
the cases? Will transfer hasten or delay progress in the
cases? What is the availability of a judge or judges in the
proposed transferee court or courts? Will the advantages of
C transfer overcome the normal desirability of having the same
- 4 -

Case MDL No. 12 Document2 Filed 04/29/15 Page 29 of 32
® judge who conducts the trial also conduct pretrial proceedings?
Will transfer impede or promote the prospect of settlements?
Will transfer serve any ulterior motive of any party or parties,
such as forum-shopping? If class actions are involved, will
transfer make for complexity or for eimplification? Will
transfer unjustly delay or deny any party's right to provisional
remedies such as injunctive relief? What is the status and
possible effect of any appeals pending in any of the cases?
Will transfer operate to eliminate or avoid an undesirable
multiplicity of appeals on similar issues?
In evaluating such of the foregoing considerations as are
relevant to this proceeding, the balance does seem very close
® to me. Notwithstanding the conceded common questions of fact
and the anticipated advantages of joint pretrial, the counter-
vailing considerations here are fairly strong. To begin with,
there are the -inherent inconveniences referred to above. In
addition, the indications are that there will be genuine finan-
cial hardship upon a number of small defendants, that much of
the saving of judicial time through transfer will be offset by
the time required for segregation of local from common issues,
| and that the advantage of having all pretrial proceedings con-
ducted by the trial judge will be lost in all transferred cases.
Moreover, since a great number of the plaintiffs are represented
by the same counsel, the opportunity exists for gaining many of
the advantages of transfer through informal cooperation. However,
@ I am not convinced that these factors weighing against consolidated
- 5 -

Case MDL No. 12 Document 2 Filed 04/29/15 Page 30 of 32
or coordinated pretrial sufficiently tip the scale to require
dissent from the decision of the Panel.
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Case MDL No. 12 Document 2 Filed 04/29/15 Page 31 of 32
FOOTNOTES
1. In the proceeding at bar, for instance, a total of 24 cases
must be transferred to the Eastern District of Pennsylvania
from five different district courts. The Manual for Clerks
circulated by the Panel indicates that the most efficient
procedure would be as follows: Upon receiving the Panel's
order of transfer, the clerk of the transferee court transmits
a certified copy thereof to the clerks of the transferor courts.
After receiving and filing this order, each transferor clerk
makes an appropriate entry on the docket sheet of each affected
case and then forwards to the transferee court the files,
records, and a copy of the docket sheet of each transferred
case.
The transferee clerk usually maintains a master docket sheet
for all transferred cases, individual docket sheets for each
such case and a complete combined pretrial file for each trans-
feror court. Thereafter, copies of all motions, depositions,
exhibits, and other pretrial papers are included in each com-
bined district file. Notices, orders and pleadings must be
served on all counsel for all parties, unless alternative
® arrangements can be agreed upon.Motions for remand may be initiated by any party, the transferor
or transferee courts or the Panel. Only the Panel has the power
to order a remand. Hearings may be necessary. Orders of remands
must be transmitted to each transferor court by the transferee
court and appropriate entries must be made on all the afore-
mentioned docket sheets. The individual case file, a docket
sheet for each remanded case, a copy of the master docket sheet
and the combined district file must then be transmitted back to
the appropriate district court. If some but not all of the cases
from a specific district are remanded, then copies of all subse-
quent motions, orders and other filings must be sent to the
transferor court for inclusion in the combined district file.
2. See In rePlumbing	Fixture Cases, 295 F. Supp. 33 (Jud.Pan.Mult.
Lit. 1968).
3. See In re Air Crash Disaster at Greater Cincinnati Airport
(American Airlines), 295 F. Supp. 51 (Jud.Pan.Mult.Lit. 1968).
4. See In re Scotch Whiskey Antitrust Litigation, ____ F. Supp. _
ud.Pan.Mult.Lit. 1969).
5. See In re Library Editions of Children's Books, 297 F. Supp. 385
(Jud.Pan.Mult.Lit. 1968).
—- 7 -

Case MDL No. 12 Document2 Filed 04/29/15 Page 32 of 32
6. See In re Air Crash Disaster at Greater Cincinnati Airport
(TWA) , F. Supp. (Jud.Pan.Mult.Lit. 1968).
7. See In re Library Editions of Children's Books, supra.
8. See In re Gypsum Wallboard Antitrust Cases (Roundy v, Kaiser
Gypsum) , F. Supp. (Jud.Pan.Mult.Lit. 1969).
9. See In re Fourth Class Postage Regulations, F. Supp.
(Jud.Pan.Mult.Lit. 1969).
10. See In re Scotch Whiskey Antitrust Litigation, supra.
11. See In re Protection Devices and Equipment and Central Station
Protection Service Antitrust Cases, 295 F. Supp. 39 (Jud.Pan.
Mult.Lit. 1968).
12. See In re Air Crash Disaster at Falls City, Neb, on Aug, 6,
1966, ____ F. Supp. (Jud .Pan.Mult.Lit. 1969).
13. See In re Plumbing Fixture Cases, F. Supp. (Jud.Pan.
Mult.Lit. Dec. 27, 1968).
® 14. See In re Mid-Air Collision Near Hendersonville, N, C, on	July 19, 1967, 297 F. Supp. 1039 (Jud.Pan.Mult.Lit. 1969).
- 8 ~- }