IN RE: Bristol Bay, Alaska, Salmon Fishery Antitrust Litigation

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BEFORE THE JUDICIAL PANEL / jfTE iON Am.
( MULTIDISTRICT LITIGATION Dec~5Pare, 27g
IN RE BRISTOL BAY, ALASKA, 0Lc7, DOCKET NO. 249
SALMON FISHERY ANTITRUST ) Ep
LITIGATION ) os
OPINION AND ORDER
BEFORE JOBN 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 four actions pending in
two different districts: . three in the Western District of
Washington and one in the District of Alaska. The plain-
°® tiffs in all four actions are salmon fishermen in the Bristol= Bay, Alaska, salmon fishery. All the defendant companies are
owners of canneries and fishing fleet maintenance and support
facilities on Bristol Bay. Nine of these defendants are common
to every action.
The complaints in all four actions contain allegations
that the defendants violated the federal antitrust laws by
conspiring to monopolize the market for salmon caught in
‘Bristol Bay and to fix the price they paid to fishermen for
salmon. Plaintiffs further allege that this monopoly was
* 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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é perpetuated through illegal tie-in arrangements whereby the
extension of credit and the provision of maintenance and
support facilities were contingent upon an agreement to sell
all salmon caught by a fisherman to a particular defendant.
The Washington actions cover the fishing seasons from 1970 to
1973, while the Alaska action covers the fishing seasons from
1971 to 1974. Defendants have filed counterclaims under the
federal antitrust laws in all four actions alleging unlawful
restraints of trade, including price-fixing, blockades, threats
and other forms of coercion.
The first action was filed in the Western District of
Washington as a class action on behalf of all members of the
Alaska Independent Fishermen's Marketing Association. Class
o certification was denied in that action and it is currently
proceeding	with a single plaintiff. Two more actions were subsequently
filed in the same district by 36 and 140 fishermen, respec-
tively, who were included in the purported class. Thereafter,
the Alaska action was filed as a class action on behalf of
all Bristol Bay salmon fishermen who are not plaintiffs in
the first three actions. This putative class is estimated
to include 2,000 members. A motion for class certification
and a motion to transfer the Alaska action to the Western
: District of Washington under 28 U.S.C. §1404 (a) are presently
under consideration by the Alaska court.
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[ Pursuant to 28 U.S.C. §1407(c) (i) and Rule 8, R.P.J.P.M.L.,
65 FP.R.D. 253, 258-59 (1975), the Panel issued an order to
show cause why these four actions should not be transferred
to a single district for coordinated or consolidated pretrial
proceedings. The defendants favor transfer of the litigation
and urge the Western District of Washington as the transferee
district. The Washington plaintiffs and the Alaska plain-
tiffs oppose transfer. In the alternative, they favor their
respective districts as the transferee forum.
We find that these actions involve common questions of
fact and that transfer of the Alaska action to the Western
District of Washington for coordinated or consolidated pre-
trial proceedings under Section 1407 with the three actions
0 pending there will best serve the convenience of the parties
and witnesses and promote the just and efficient conduct of
the litigation.
Plaintiffs in both the Washington and Alaska actions
recognize that many common factual questions are involved
in these actions. Nevertheless, plaintiffs contend that a
comparison of the Alaska action to the Washington actions re-
veals significant uncommon facts which make transfer inappro-
priate. In particular, they point out that the 1970 fishing
season is excluded from the claims in the Alaska action.
That season, they argue, was unique because of an exceptionally
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® large catch and therefore a substantial amount of discovery
in the Washington actions will be directed toward it.
The Alaska plaintiffs maintain that because of the
similarity among the Washington actions, in essence only two
actions are involved here -- one in Alaska and one in
Washington. Relying on In re Scotch Whiskey Litigation,
299 F. Supp. 543 (J.P.M.L. 1969), they stress that transfer
is unwarranted since defendants have failed to demonstrate that
the minimal number of actions in this litigation share unusually
complex questions of fact. They further argue that attempts at
voluntary coordination among the parties have made transfer
unnecessary and that transfer of their action to Washington
would impose financial hardships on the low-income fishermen
® residing in remote areas of Alaska. Finally, they urge the
Panel to delay its decision until the class certification and
Section 1404 (a) motions are decided, or to select the District
of Alaska as the transferee district in light of the pendency
of these motions.
These arguments are not persuasive. An analysis of the
complaints in the four actions before us reveals that they
raise sufficiently complex common questions of fact to justify
transfer under Section 1407 despite the lack of a complete
identity in the time periods involved. As is often true in
multidistrict antitrust actions, questions concerning the
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® existence, scope and effect of the alleged conspiracy among
the several defendants necessitate transfer in order to pre-
vent duplicative discovery, eliminate the possibility of
conflicting pretrial rulings and streamline the remainder of
the pretrial proceedings as well. See In re Japanese Elec-
tronic Products Antitrust Litigation, 388 F. Supp. 565, 566-67.
(F.P.M.L. 1975). Of course, the transferee judge has the
broad discretion to allow discovery on issues unique to any
action to proceed concurrently with the common discovery.
In re Republic National - Realty Equities Securities Litigation,
382 F. Supp. 1403, 1405-06 (J.P.M.L. 1974).
Though voluntary coordination among the parties as a
means of avoiding duplicative discovery is commendable, if
® the actions under consideration are otherwise appropriate for
coordinated or consolidated pretrial proceedings, the Panel
prefers to place the actions under the control of a single
judge in order to ensure that the objectives of Section 1407
are met. See In re Celotex Corporation "Technifoam" Products
Liability Litigation, 68 F.R.D. 502, 504 (J.P.M.L. 1975); In
re Midwest Milk Monopolization Litigation, 379 F. Supp. 989,
990-91 (J.P.M.L. 1974). 1In any event, defendants assert that
they have already been subjected to duplicative discovery re-
quests notwithstanding plaintiffs' contention that voluntary
coordination can be adequately utilized here.
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® The Alaska plaintiffs' concern that transfer under Section
1407 will impose extreme financial hardships upon them is
unwarranted. Since a Section 1407 transfer is for pretrial
proceedings only, there is usually no need for the parties
and witnesses to travel to the transferee district for
depositions or otherwise. See, e.g., Fed. R. Civ. P. 45(d) (2).
Furthermore, the judicious use of liaison counsel, lead counsel
and steering committees will eliminate the need for most counsel
to travel to the transferee district. See Manual for Complex
Litigation, Part I, Sections 1.90 - 1.93 (rev. ed. 1973).
Indeed, one of the purposes of coordinated or consolidated pre-
trial proceedings is to streamline the efforts of the parties
and witnesses, their counsel and the judiciary in order to
® effectuate an overall savings of cost and a minimum of in-
convenience to all concerned. In re Nissan Motor Corporation
Antitrust Litigation, 385 F. Supp 1253, 1255 (J.P.M.L. 1974).
Nor do we believe that in the circumstances of this
particular litigation should we defer our decision until the
Alaska court decides the motions pending before it. As the
Panel has previously held, matters concerning class action
certification should be included in the coordinated or
consolidated pretrial proceedings in order to prevent in-
consistent rulings and promote judicial efficiency. See, e.g.,
In re Piper Aircraft Distribution System Antitrust Litigation,
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® 405 F. Supp. 1402, 1403-04 (J.P.M.L. 1975). And, inasmuch
as Sections 1404 (a) and 1407 can be used cumulatively in
any given litigation, the motion for transfer under Section
1404 (a) can be presented to and determined by the transferee
judge. See Pfizer Inc. v. Lord, 447 F. 2nd 122 (2nd Cir.
1971).
The Western District of Washington is clearly the most
appropriate transferee forum for this litigation. Since the
corporate headquarters and records of all defendants are
located in or near that district, as are, during most of the
year, the personnel of defendants likely to be called as
witnesses, the majority of discovery will most likely take
place in that vicinity. Moreover, three of the four actions in
9 this litigation are already pending in the Western District of
Washington and those three actions are further advanced than the
one in Alaska. See In re Joseph F. Smith Patent Litigation,
407 F. Supp. 1403, 1405 (J.P.M.L. 1976).
IT IS THEREFORE ORDERED that the action listed on the
following Schedule A and pending in the District of Alaska
be, and the same hereby is, transferred to the Western District
of Washington, and with the consent of that court, assigned to
the Honorable James M. Fitzgerald, sitting by designation
under 28 U.S.C. §292(b), for coordinated or consolidated pre-
trial proceedings pursuant to 28 U.S.C. §1407 with the actions
pending in that district and listed on Schedule A.
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@ scomwiza DOCKET	NO. 249
: WESTERN DISTRICT OF WASHINGTON
Peter Mosness v. Alaska Packers Assn., Civil Action
. et al. No. C74-366S
Ronald Aliotti, et al. v. Bumble Bee Civil Action
Seafoods, et al. No. C75-399S
Elmer R. Adams, et al. v. Bumble Bee Civil Action
Seafoods, et al. No. C75-98
DISTRICT OF ALASKA
Donald F. Nielsen, et al. v. Alaska Civil Action
Packers Assn., Inc., et al. No. A75-69