IN RE: Griseofulvin Antitrust Litigation

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. JUDICIAL P
MULTICISTAICE tion
[ ‘ BEFORE THE JUDICIAL PANEL ~HUED aST ON
MULTIDISTRICT LITIGATION JUN 19 1975
PATRICIA
IN RE GRISEOFULVIN 2) 0 SHER Of SH R0: ANTITRUST LITIGATION ) :
OPINION AND ORDER
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
This litigation involves three actions filed in three
different districts: the District of the District of Columbia,
the District of New Jersey and the Southern District of New York.
Lee's Prescription Shops, Inc. originally filed a
® complaint under the federal antitrust laws in the Southern District
of Florida against Glaxo Group Ltd., Imperial Chemical Industries
Ltd. (ICI), Johnson & Johnson, Inc. (J&J), Schering Corp.,
American Home Products Corp. (AMHO) and Ayerst Laboratories, Inc.
All defendants, except one, moved to dismiss the complaint
for lack of personal jurisdiction, improper venue and improper
service. The motions were granted by the Florida court in
September 1974. Lee's did not appeal the decisions and, in
addition, voluntarily dismissed the action against the remaining
defendant.
* Although Judge Lord was unable to attend the Panel hearing,
he has, with the consent of all parties, participated
CJ in this decision.

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Two months later, Lee's filed an identical complaint
in the District of the District of Columbia against the same
six defendants. All defendants, except J&J, have filed motions
challenging the venue of the action in the District of the Dis- |
trict of Columbia and the personal jurisdiction of that court. a
Apparently fearing that the statute of limitations might expire
before those motions were decided, in February 1975 plaintiff
instituted an additional action in the District of New Jersey
and another in the Southern District of New York. The New Jersey
action names Glaxo and Schering as defendants while designating
® ICI, J&J, AMHO and Ayerst as co-conspirators; the New York actionnames ICI, AMHO and Ayerst as defendants while designating Glaxo,
Schering and J&J as co-conspirators.
The substance of each complaint is identical, focusing
© on defendants' activities in connection with their manufacture
and sale of griseofulvin, a drug used to treat external fungal
infections in humans and animals. Plaintiff alleges that the
ICI patent, which claims a method of curing fungal infections
by administering griseofulvin, fails to meet the statutory
requirements of 35 U.S.C. §§100, 101 and 112 and is, therefore,
invalid. Plaintiff further alleges that defendants Glaxo and -
ICI combined to pool their patents and to license them in a manner
® |
which unreasonably restrained trade and commerce in violation of
section 1 of the Sherman Act. In addition, plaintiff alleges

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® that in 1959 Glaxo entered into separate licensing agreements
with licensees Schering and J&J, which allowed these licensees
. to make, use and sell griseofulvin, provided that they refrain
from selling the product in bulk form to anyone without Glaxo's :
consent. In 1962, it is alleged, ICI entered into a similar
agreement with licensee AMHO. As a result of these agreements,
plaintiff alleges that competition was prevented between and :
: among the defendants, that the licensees were guaranteed freedom
from outside competition and that third parties were prevented
. from.purchasing bulk form griseofulvin and packaging it into |
dosage form tablets, all of which constitute violations of
® Section 1 of the Sherman Act.
Lee's purports to bring these actions on behalf of
all individuals and business entities in the United States and
Puerto Rica who purchased griseofulvin from any of the defend-
ants for the purpose of dispensing or reselling the drug for
medicinal usages.
Plaintiff moves the Panel for an order, pursuant to
28 u.s.c. §1407, transferring the two actions pending in districts
other than the District of the District of Columbia to that
district for coordinated or consolidated pretrial proceedings
with the action pending there. Five of the six defendants have
® filed a joint response in opposition to plaintiff's motion.

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® We find that these actions involve common questions of fact
and that their transfer under Section 1407 to the District
. of the District of Columbia will best serve the convenience
of the parties and witnesses and promote the just and efficient
conduct of the litigation.
Five of the six defendants request the Panel to defer
its decision	on transfer until their motions to dismiss for
improper venue and lack of personal jurisdiction have been
resolved by the District of Columbia court. These defendants
contend that, even though actions are currently pending in three
~ districts, this litigation is not truly multidistrict litigation
® because any multidistrict character may be eliminated by the |
resolution of the motions to dismiss: if plaintiff's position
is upheld, plaintiff would have no need to pursue its other actions;
if the five defendants prevail, and the remaining defendant seeks |
and obtains a change of venue, then the District of Columbia
would be eliminated as a forum and the focus of the litigation
would shift to another district. Thus, defendants maintain that
plaintiff's motion for transfer is premature and will remain so
until it is known whether all, some or none of the defendants
will remain in the District of Columbia.
®

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We see no reason for delaying our decision. The New York
and New Jersey actions are completely subsumed in the District
of Columbia action and, a fortiori. common questions of fact
exist among them. Transfer under Section 1407 will therefore
ensure the prevention of duplicative discovery, regardless of
the outcome of the dismissal motions and any subsequent maneuver-
"ing by the parties. Moreover, the institution of coordinated
or consolidated pretrial proceedings at this time will allow
a single judge to consider all venue and jurisdictional matters
regarding all three actions and will thereby conserve judicial
® effort and prevent inconsistent rulings.
Clearly, the District of the District of Columbia is
| the most appropriate transferee forum inasmuch as that district
is the focal point of this litigation. The action pending there
encompasses the other two and is also the furthest advanced.
Moreover, Judge Aubrey E. Robinson, Jr., to whom the District
of Columbia action is assigned, has become acquainted with
the issues involved in this litigation, which will enable him
to supervise the pretnal proceedings concerning all three actions
toward their most just and expeditious termination.
IT IS THEREFORE ORDERED that the actions listed on the
® following Schedule A pending in districts other than the Districtof the District of Columbia be, and the same hereby are, trans-

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® ferred to the District of the District of Columbia and, with
the consent of that court, assigned to the Honorable Aubrey |
- E. Robinson, Jr. for coordinated or consolidated pretrial
| | proceedings pursuant to 28 U.S.C. §1407 with the action pending
in that district and listed on Schedule A.
®
® Co

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i . SCHEDULE A DOCKET NO. 205SOUTHERN DISTRICT OF NEW YORK
Lee's Prescription Shops, Inc., etc. v. :
Imperial Chemical Industries Civil Action
: Limited, et al. : No. 75 Civ. 822
DISTRICT OF NEW JERSEY
Lee's Prescription Shops, Inc., etc. Civil Action
Vv. Glaxo Group Limited, et al. EET No. 75-296
DISTRICT OF THE DISTRICT	OF COLUMBIA :
Lee's Prescription Shops, Inc., etc. v. Civil Action
Glaxo Group Limited, et al. No. 74-1709