1:69-F-00028•IN RE: Multidistrict Civil Antitrust Litigation Involving SCM Photocopy Paper Monopoly
IN RE: Multidistrict Civil Antitrust Litigation Involving SCM Photocopy Paper Monopoly
1:69-F-00028JpmlApr 30, 2015
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Case MDL No. 28 Document 2 Filed 04/30/15 Page 1 of 8 JUDICIAL PANEL Ope —— mo : MULTIDISTRICT Ligation = he Flo EE . | THE JUDICIAL PANEL . = i ON 0CT 2 71059 haMULTIDISTRICT LITIGATION EE PATRICIA 0. WiLT ans oo CLERK N RE MULTIDISTRICT CIVIL ANTITRUST ) ITIGATION INVOLVING PHOTOCOPY PAPER |) DOCKET NO. 28 OPINION AND ORDER EFORE ALFRED P. MURRAH*, CHAIRMAN, AND JOHN MINOR WISDOM, Ce DWARD WEINFELD, EDWIN A. ROBSON, WILLIAM H. BECKER, JOSEPH . LORD, III*, AND STANLEY A. WEIGEL*, JUDGES OF THE PANEL iR CURIAM . oo On August 15, 1969, the Panel ordered the parties in the : ‘tions listed on the attached Schedule A to show cause why : iese actions should not be transferred for coordinated or a. 'nsolidated pretrial proceedings under 28 U.S.C. §1407 to a EE a. strict or districts other than those in which they were then | : : nding.l/ All parties filed responses to the show cause order - d, with a single exception?/, all vigorously opposed transfer oo oo any of these actions at the Present time. After reviewing _ oo EE ese responses and considering the arguments presented at the I Although Judges Murrah, Lord and Weigel were unable to attend2 hearing on September 26, 1969, they have, with the consent all parties, participated in this decision. Another related action filed in the District of Utah, Jance Business Equipment Co. v. SCM Corp., was dismissed a oo 7 days before the show cause order was entered. The plaintiff in the Arizona action does not oppose transfer this case for coordinated or consolidated pretrial proceedings.
Case MDL No. 28 Document 2 Filed 04/30/15 Page 2 of 8 . x @ | -2- hearing held in Washington, D.C. on September 26, 1969, we have decided not to transfer any of these actions at this time. The existence of common questions of fact among civil actions pending in different districts is the "initial criteria" which must be satisfied before any such actions may be transferred under section 1407. In re Cincinnati Air Disaster Litigation (TWA), 298 F. Supp. 353 (Jud.Pan.Mult.Lit. 1968). There is in this litigation, a very basic and substantial question of fact common to all actions: can the defendant's policy of recommending that only SCM photocopy paper and supplies be used with SCM photocopy machines be justified for technical reasons3’/ or is it an attempt to create an illegal ® tying arrangement. 3/ The nature, scope, purpose, and implementa- tion of this corporate policy appear relevant to all of the actions in this multidistrict litigation and this factor ~ satisfies the requirement that common questions of fact exist. Of course, transfer for coordinated or consolidated pre- trial proceedings is not mandated by a finding that common questions of fact permeate the actions. See, for example, 3/ General Counsel for SCM asserts that such a recommendation is made to insure quality reproductions and reliable perfor- mance of SCM photocopy equipment. . 4/ In Advance Business Systems and Supply Co. v. SCM Corp., : F.2d (August 18, 1969) the Fourth Circuit affirmed the trial court's finding that SCM had failed to establish any legitimate reason for the tying clauses since SCM officials knew that the competing product (Nashua Paper) was "safe and C as effective as SCM paper" for use with SCM photocopy machines.
Case MDL No. 28 Document2 Filed 04/30/15 Page 3 of 8 ® | -3- In re Scotch Whiskey, 299 F. Supp. 543 (Jud.Pan.Mult.Lit. 1969) and In re Air Crash Disaster at Falle City, Nebraska, 298 F. Supp. 1323 (Jud.Pan.Mult.Lit. 1969). A transfer will not be ordered unless the convenience of parties and witnesses is served and the just and efficient conduct of the actions promoted by such a transfer. In opposing the proposed transfer, the parties assert that neither they nor their witnesses would be convenienced by a transfer since a large and perhaps the greatest portion of the discovery will involve local markets, local practices, and local witnesses. It may be true that transfer for coordinated or consolidated pretrial proceedings as to local issues might not serve the i ® convenience of the parties and their witnesses but it seems clear that such transfer for coordinated or consolidated pre- trial proceedings relating to the common questions of fact would indeed serve the convenience of the parties and their witnesses.3/ - As discovery has been completed in the Virginia Impres- sion Products Company Case and trial is scheduled to begin shortly, this action would certainly be excluded from any - consolidated or coordinated pretrial proceedings. cf. In re Protection Devices and Equipment, Ete., 295 F. Supp. 39 (Jud. Pan. Mult. Lit. 1968). Discovery in several other actions 5/ While local discovery can be conducted during coordinated ® or consolidated pretrial proceedings, it need not be, and the actions may be remanded to the original transferor courts for such local discovery. In re East of the Rockies Concrete Pipe Antitrust Cases, ____ F. Supp. ___ (Concurring Opinion) (Jud. Pan. Mult. Lit. 1969).
Case MDL No. 28 Document2 Filed 04/30/15 Page 4 of 8 - @® . i has also progressed to a point that their transfer under section 1407 would be inappropriate and the few remaining actions do not fall into that category of exceptional cases sharing unusually complex questions of fact. Compare In re IBM Litigation, __ _ F. Supp. ___ (Jud.Pan.Mult.Lit. 1969) with In re Seoteh Whiskey, supra. The number of transferable actions, their location, their lack of complexity, their relative size, and, most significantly, the fact that dis- covery is proceeding with a minimum expenditure of judicial energies combine to make the immediate transfer of any of these actions inconsistent with the goal of promoting the just and efficient conduct of these actions. Co - ® In sum, we have concluded that the predicate common questions of fact exist and that the convenience of the parties and their witnesses would generally be served by -. transfer but that the just and efficient conduct of the presently pending actions would not be promoted by transfer at this time, At oral argument, General Counsel for the SCM recognized the possibility that additional actions might be commenced _ following the recent Fourth Circuit decision and he wanted to reserve the right to invoke the power of the Panel if sub- sequent developments make coordinated or consolidated pretrial proceedings more appropriate. We shall therefore retain ®
Case MDL No. 28 Document 2 Filed 04/30/15 Page 5 of 8 SE @ | -5- | jurisdiction of this matter for six months. Counsel for SCM is directed to file a report with the Clerk of the Panel no later than May 1, 1970 showing the status or disposition of the actions now pending and any related actions commenced in the interim. ® ( |
Case MDL No. 28 Document 2 Filed 04/30/15 Page 6 of 8 & i J -@ " SCHEDULE A DOCKET NO. 28 NORTHERN DISTRICT OF CALIFORNIA 1. Roy Davenport d/b/a Vallejo Typewriter Civil Action Co. v. SCM Corporation No. 49570 2. Lloyd Cowan d/b/a Lloyd's Business Civil Action Machines v., SCM Corporation No. 45633 DISTRICT OF MASSACHUSETTS 3. Bloom's Photo Supply, Inc., et al. v. Civil Action SCM Corporation : No. 68-975-J 4. Automatic Business Systems Corporation Civil Action v. SCM Corporation No. 69-147-W DISTRICT OF ARIZONA 5. Avery Powers d/b/a Standard Office Civil Action ® System of Arizona v. SCM Corporation No. 6890-PHX EASTERN DISTRICT OF VIRGINIA 6. Virginia Impression Products Co. Vv. Civil Action SCM Corporation No. 5677-R
Case MDL No. 28 Document 2 Filed 04/30/15 Page 7 of 8
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PIERY [IF THE BEES :
BEFORE THE JUDICIAL PANEL ON MULTIDISTRICT LITIGAT TORS 15FLA |
IN RE MULTIDISTRICT CIVIL ANTITRUST LITIGATION INVOLVING SCM :
PHOTOCOPY PAPER MONOPOLY :
ORDER | Co
.. ..Having considered the responses of the parties to the. .
show cause order of May 26, 1970 and all arguments presented :
by counsel at the June 26, 1970 hearing, the Panel has
determined that the convenience of parties and their witnesses oo
and the just and efficient conduct of these actions would not i MEE oo
be served by transfer for coordinated or consolidated pretrial o oo
proceedings under 28 U.S.C. §1407. ’ Ce
TRANSFER DENIED. © | Cr | |
- ~~. FOR THE PANEL: EE
Alfred P. Murrah — a .: : Chairman - : = : Co
as - { .Case MDL No. 28 Document 2 Filed 04/30/15 Page 8 of 8 >. DOCKET NO. 28 | i SCHEDULE A ® : NORTHERN DISTRICT OF CALIFORNIA ny ] Roy. Davenport d/b/a Vallejo Typewriter civil Action’ © Co. Vv. SCM Corporation No. 49570 / Lloyd Cowan d/b/a Lloyd's Business © civil Action: ! Machines v. SCM Corporation | No. 45633 J Lo . ' DISTRICT OF MASSACHUSETTS . Bloom's Photo Supply, Inc., et al. v. civil Action SCM Corporation No. 68-975-J Automatic Business. Systems Corporation. v. civil Action i SCM Corporation : No. 69-147-W | Co DISTRICT OF ARIZONA ) Avery Powers d/b/a Standard Office System Civil Action - of Arizona v. SCM Corporation No. 6890-PHX i DISTRICT OF CONNECTICUT Contoura Business Machines, Inc. V. Civil Action ® SCM Corporation No. 13728 - EASTERN DISTRICT OF LOUISIANA } Eaves, Inc. v. SCM Corporation Civil Action : . Co No. 70-709 oo © SOUTHERN DISTRICT OF NEW YORK i 01d Town Corporation v. SCM Corporation Civil Action No. 70 Civ 1367 NORTHERN DISTRICT OF NEW YORK Business Services Company of Utica, Inc. Vv. Civil Action ol "SCM Corporation : . No. 70 CV 153 © _ Cen } /
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