IN RE: Beef Industry Antitrust Litigation

co Case MDL No. 248 Ddcument 2 Filed asta Abo 10f 14 |
: JUDICIAL PANGL ON
MULTIOISTRICT Lit iGATICN
: BEFORE THE JUDICIAL PANEL FILED
ON
: MULTIDISTRICT LITIGATION SET -2 1876 |
PATRICIAD. HOWARD, C248
IN RE BEEF INDUSTRY ) CLEBOEHE PEL 248 a
ANTITRUST LITIGATION ) 92% |
OPINION AND ORDER E
BEFORE JOHN MINOR WISDOM, CHAIRMAN, AND EDWARD WEINFELD,
EDWIN A. ROBSON, WILLIAM H. BECKER *, JOSEPH S. LORD, III *,
STANLEY A. WEIGEL, AND ANDREW A. CAFFREY™ JUDGES OF
THE PANEL
PER CURIAM
This litigation consists of eight civil antitrust
actions commenced in six different federal districts: two
in the Northern District of Texas, two in the Northern
District of California, and one each in the Northern and
Southern Districts of Iowa, the District of Utah and
the District of Nevada. The plaintiffs in these actions
are involved in the production and feeding of beef cattle: :
They are located in nineteen midwestern, western, and south- :
western states, and in Mexico. The named defendants in one
or more of these actions are 24 major supermarket chains;
the National Provisioner, Inc., which is a commercial whole-
sale meat price reporting service; and the National Associa-
tion of Food Chains, which is a national trade association
* Judges Becker, Lord, and Caffrey were unable to attend
the Panel hearing and, therefore, took no part in
the consideration or decision of this matter.

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. for food retailers.	. These defendants are headquartered in
seventeen different states across the country and in the:
District of Columbia.
: Plaintiffs in all actions allege that defendants
violated Section 1 of the Sherman Act by fostering a
massive nationwide conspiracy to illegally depress the .
wholesale price of beef and raise the price of beef sold
at retail. Seven of the eight actions also include claims
under Section 2 of the Sherman Act. This scheme, plaintiffs
claim, is accomplished at least in part through a system of
price leadership whereby certain defendants establish a
bidding price which other defendants then follow. Prices
are allegedly agreed upon at meetings of the food retailers
trade association and furthered through the wholesale meat
price reporting service.
Eleven of the defendants in these actions move the
Panel for an order transferring all actions to the
Northern District of Texas for coordinated or consolidated
pretrial proceedings pursuant to 28 U.S.C. §1407. Ball
responding parties either agree or express no position on
the desirability of transfer in this litigation. The only
real dispute is over the selection of an appropriate trans-
feree district. In addition to the Northern District of

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® Texas, three other districts have been suggested	== the. .
Northern District of California, the Southern District
of Iowa, and the District of Utah.
On the basis of the papers filed and the hearing
held, we find that these actions involve common guestions
of fact and that their transfer to the Northern District
of Texas for coordinated or consoliaated pretrial pro-
ceedings under Section 1407 will best serve the con-
venience of the parties and witnesses and promote the
just and efficient conduct of this litigation.
As is often the case in multiaistrict antitrust
litigation, the actions before us raise common factual
® issues concerning the existence, scope and effect of the
alleged conspiracy that necessitate transfer in order to
prevent duplication of discovery, eliminate the possibility
of conflicting pretrial rulings and streamline the rest of
the pretrial proceedings as well. See, e.g., In reFolding
Carton Antitrust Litigation, _F. Supp.__ (J.P.M.L., filed
May 25, 1976).
The parties favoring the Southern District of Iowa
as the transferee forum stress that Iowa ana its sur-
rounding states comprise a traditional meat packing center,
that many major meat producers have corporate offices
®

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®
located in the midwest, and that therefore any future
tag-along actions are likely to be instituted there.
They argue that Iowa is a convenient centrally located
forum for this litigation, and that the documents and
witnesses of a majority of the plaintiffs will be more
conveniently available there. The arguments in favor of
the Northern District of California are that one of the
actions pending in that district is more advanced in
discovery than any other action, that several documents
have been assembled there by defendant Safeway in
connection witha previous action in that district, and
that future tag-along actions are likely to be filed in
western jurisdictions. The District of Utah is urged pri- ®
marily because of its central location and because it
contains the action with the broadest allegations.
We believe that each of the four suggested districts
could be described as an appropriate transferee forum
for this litigation. On balance, however, we find that
the Northern District of Texas is most preferable.
Indeed, this district is the first choice of the majority
of the defendants and is the second choice of almost all
other parties to these actions. Although no action appears
to be particularly more advanced than the others, we
observe that Chief Judge william M. Taylor, Jr., to whom
@

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® one of the Texas actions is assigned,	has. ruled -on: v.53...
several pretrial motions, including a motion for partial
summary judgment on a statute of limitations issne.
Thus, he has gained a degree of familiarity with this
litigation that will enable him to supervise 1t toward
its most just and expeditious termination. Sc¢e In re
Griseofulvin Antitrust Litigation, 395 F. Supp. 1402,
1403 (J.P.M.L. 1975).
There is another argument that must be aadressed.
Both defendant Jewel Food Stores and plaintiff Meat
Price Investigators Association oppose transfer to thc
Northern District of Texas because of their aispleasure
® with prior proceedings in the actions in that forum.
This contention is wholly without merit. The prospect
of an unfavorable ruling by the transferee court or the
possibility that another district judge may be more
favorably disposed to a litigant's contentions are
simply not factors considered by the Panel in determining
whether and to where transfer under Section 1407 is appro-
priate. In re Air Crash Disaster at Paris, France, on
March	3, 1974, 386 F. Supp. 1404, 1405 (J.P.M.L. 1975);
In re Suess PatentInfringement Litigation, 384 F. Supp.
1405, 1467 (J.pP.M.L. 1974).
®

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®
IT IS THEREFORE ORDERED that the actions listed on
the following Schedule A and pending in districts other
than the Northern District of Texas be, and the same hereby
. are, transferred to the Northern District of Texas and,
with the consent of that court, assigned to the Honorable
William M. Taylor, Jr. for coordinated or consolidated
pretrial proceedings pursuant to 28 U.S.C. §1407 with
the actions pending there and listed on Schedule A.
®
J

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@ SCHEDULE A DOCKET NO. 248
NORTHERN DISTRICT OF CALIFORNIA w:viran on oo
Burke Petersen, et al. v. Safeway Stores, Civil Action
Inc., et al. No. C75-0984-RFP
James F. Boccado, et al. v. Safeway Civil Action
. Stores. Inc., et al. No. C76-600-0JC
NORTHERN DISTRICT OF TEXAS
Pony Creek Cattle Co., Inc., et al. v. The Civil Action
Great Atlantic & Pacific Tea Co., et al. No. CA3-75-0702~C
A.L. Black, et al. v. Acme Markets, Inc., Civil Action
et al. No. CA2-75-186
NORTHERN DISTRICT OF IOWA
Richard S. Lowe, et al. v. Safeway Civil Action
Stores, Inc., et al. No. C75-4043
SOUTHERN DISTRICT OF IOWA
Meat Price Investigators Association, Civil Action
o et al. v. Safeway Stores, Inc., et al. No. CA-75-333-2
DISTRICT OF NEVADA
R. Dirk Agee, et al. v. Safeway Stores, Civil Action
Inc., et al. No. R-75-224-BRT
DISTRICT OF UTAH
Chaparral Cattle Corp., et al. v. Safeway Civil Action
Stores, Inc., et al. No. C76-79

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: GLE
BEFORE THE JUDICIAL PANEL MULTr 75057 ny 2
ON FLEETMULTIDISTRICT LITIGATION Tm L
JU ~7 yor
IN RE BEEF INDUSTRY ANTITRUST LITIGATION po) DOCKET Hd. 248	Meat Price Investigators Association, a LE
et al. v. Iowa Beef Processors, Inc., et al. yp urdS. D. Iowa, Civil Action No. 76-252-2 ) ==
OPINION AND ORDER » Sl
—_— 29)
BEFORE JOHN MINOR WISDOM, CHAIRMAN, AND EDWARD WEINFELD, : ud
EDWIN A. ROBSON, WILLIAM H. BECKER, JOSEPH S. LORD, III, '
STANLEY A. WEIGEL*, AND ANDREW A. CAFFREY, JUDGES OF THE
PANEL. .
PER CURIAM
On September 2, 1976, the Panel, pursuant to 28 U.S.C.
§1407, transferred several actions in this litigation to the
Northern District of Texas and, with the consent of that court,
assigned them to the Honorable William M. Taylor, Jr. for
coordinated or consolidated pretrial proceedings with
related actions already pending there. In re Beef Industry .
Antitrust Litigation, 419 F. Supp. 720 (J.P.M.L. 1976). The
plaintiffs in the thirteen actions in the transferee district
(the supermarket actions) are the Meat Price Investigators ’
| Association (MPIA) and several individuals and companies
engaged in the production and feeding of beef cattle. The -
defendants are several major supermarket chains; the National
Provisioner, Inc., which is a commercial wholesale meat price
reporting service; and the National Association of Food
Chains, which is a national trade association for food retailers.
* Judge Weigel was unable to attend the Panel hearing and,
therefore, took no part in the consideration or decision
of this matter.

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Plaintiffs in the supermarket actions allege that the
® defendants have illegally conspired to depress the wholesale
price of beef and to raise the price of beef sold at
retail. This scheme, plaintiffs claim, is accomplished
at least in part through a system of price leadership
whereby certain defendants establish a bidding price which
the other defendants then follow. Prices are allegedly
agreed upon at meetings of the National Association of Food
Chains and furthered through a publication of the National
Provisioner called the "Yellow Sheet," which is a reporter
of wholesale meat prices.
Subsequent to the Panel!s original hearing in this
litigation, the above-captioned action (the packer action)
® was filed in the Southern District of Iowa by parties which
are also plaintiffs in one of the actions in the transferee
district. The four defendants in this new action are meat packers
whose principal activity is the purchase and slaughter of fat .
cattle, and the purchase, processing, packing and selling
at wholesale of carcass beef, beef primal cuts, and beef
subprimal cuts. None of these four defendants is a party |
to any of the actions in the transferee district. Plaintiffs
in the packer action allege that the defendants have violated i
Sections 1 and 2 of the Sherman Act by conspiring to restrain
trade in the fat cattle industry through a variety of practices,
which include the following: manipulating the carcass, primal
and subprimal prices of beef reported in the "Yellow Sheet"
C and using those prices illegally to depress prices paid for

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live cattle; quoting substantially identical bids for live
® cattle; exchanging market information; dividing territories;
eliminating competition; purchasing beef from each other
to fix the price of beef; warehousing beef to reduce the
price of live cattle; and gaining inside information about
buying requirements from major buyers for the ultimate
purpose of depressing the price of live cattle. The large
supermarket chains allegedly purchase most of their beef
directly from packers.
Since the packer action appeared to share questions of
fact with the previously transferred supermarket actions, the
Panel ordered the parties to show cause why the packer action |
should not be transferred to the Northern District of Texas
® pursuant to Section 1407 for tnetugion in the coordinated orconsolidated pretrial proceedings. The National Provisioner
favors transfer. Plaintiffs and defendants in the packer 3
action and plaintiffs in some of the supermarket actions oppose x
transfer.
We find that the packer action shares questions of
fact with the actions previously transferred to the Northern
District of Texas and that transfer of the packer action to
that district under Section 1407 will best serve the )
convenience of the parties and witnesses and promote the just
and efficient conduct of this litigation.
® 1/ See Rule 10(b), R.P.J.P.M.L., 65 F.R.D. 253, 260 (1975).

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The parties opposing transfer contend that the packer
® action and the supermarket actions are distinct in their
claims and in the defendants involved. In particular, they
urge that in the new action, the defendant packers, which
are engaged in the wholesale distribution of meat, represent
an entirely different segment of the complex beef industry
than is represented in the previous actions by the defendant
supermarket chains, which are engaged in retail beef
distribution. They argue that the allegations in the
packer action compared to those in the supermarket actions
involve different conduct and antagonistic theories of
liability which should be explored separately. They
emphasize that the only common issue between the supermarket
® actions and the packer action is that one group of plaintiffs
claim they have received too little for their cattle and
they blame, alternatively, the nationwide supermarket chains_
and the packers in their immediate area. They point out ,
that none of the actions alleges any conspiracy between the
two groups of defendants -— the supermarkets and the packers.
They further stress that the packer action involves a |
geographically concentrated market area in and around Iowa
to which discovery will be restricted, whereas the supermarket :
actions involve a national market and a nationwide discovery
program.
We find these arguments unpersuasive. The record before
us reveals that resolution of the issues involved in both the
® supermarket actions and the packer action necessarily will

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raise many common questions of fact concerning the economic
® realities of the beef industry as a whole, regardless of
the fact that the two types of actions involve different
alleged conspiracies at different levels of commerce
within the beef industry. In addition, the complaints in
both the supermarket actions and the packer action involve
common factual questions regarding the alleged manipulation
of beef prices reported in the "Yellow Sheet.” Thus
transfer of the packer action is necessary in order to prevent
duplicative discovery, eliminate any possibility of conflicting
pretrial rulings and conserve time and effort for the parties,
the witnesses and the judiciary. Any antagonistic interests
among the parties in the various actions may be accommodated
® by the transferee judge in designing the pretrial programe.See In re Delta Airlines Crash at Boston Massachusetts, 395
F. Supp. 1405, 1407 (J.P.M.L. 1975); In re Franklin National
Bank Securities Litigation, 393 F. Supp. 1093, 1095 (J.P.M.L. ,
1975), And discovery on any issues unique to the packer action
may be scheduled by the transferee judge to proceed in a
separate discovery schedule concurrently with discovery on
common issues. See In re Republic National-Realty Equities
Securities Litigation, 382 F. Supp. 1403, 1405-06 (J.P.M.L. i
1974).
IT IS THEREFORE ORDERED that, pursuant to 28 U.S.C. §1407,
the action entitled Meat Price Investigators Association, et al.,
v. Iowa Beef Processors, Inc.,et al., s.D. Towa, C.A. No.
® 76-252-2 be, and the same hereby is, transferred to the

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® Northern District of Texas and, with the consent of that court,
assigned to the Honorable William M. Taylor, Jr. for
coordinated or consolidated pretrial proceedings with the
actions previously transferred to that district.

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Le EAL Than
: FULL Uns a |
FILED |
F325 asDOCKET NO. 248 PATECIA Lo [r
CLERK CF 71200) oo
BEFORE THE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION
IN RE BEEF INDUSTRY ANTITRUST LITIGATION
- ORDER REASSIGNING LITIGATION
Inasmuch as the actions in the above litigation have been
reassigned from the Honorable William M. Taylor, Jr. to the
Honorable Patrick E. Higginbotham in accordance with the Local
Rules for the United States District Court for the Northern
District of Texas,
IT IS THEREFORE ORDERED that the above-captioned litigation
be, and the same hereby is, reassigned to the Honorable Patrick
E. Higginbotham for the remainder of the coordinated or
consolidated pretrial proceedings pursuant to 28 U.S.C. §1407. }
FOR THE PANEL:
== Andrew A, Caffrey
Chairman