IN RE: South Central States Bakery Products Antitrust Litigation

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apy SY0ICIA pay
BEFORE THE JUDICIAL PANEL MULTIsTaf EL on
@ ON FICE	cA Tion
MULTIDISTRICT LITIGATION JUL
, 1977	AT,
IN RE SOUTH CENTRAL STATES BAKERY PRODUCTS ) CLEARER g, 282ANTITRUST LITIGATION | ) THE PANE]
OPINION AND ORDER
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 six actions pending in
three federal districts: three in the Eastern District of
Texas (Missildine I, Missildine II and Johnson); two in the
Western District of Louisiana “(Hinten and Riddle): and one
[ in the Middle District of Louisiana (Miller's). All six actions
are private treble damage antitrust actions brought on behalf
of various classes of bakery products purchasers. .
These actions stem from four indictments returned on
February 28, 1975, by a grand jury in the Middle District of
Louisiana. Each indictment charged various producers of bakery
products with conspiring to restrain trade in violation of
Section 1 of the Sherman Act, 15 U.S.C. §l, in one of four
geographical areas in Louisiana or in and around Louisiana: the
Shreveport-Texarkana market; the Baton Rouge market; the Monroe
* Judges Becker and Lord took no part in the consideration or
decision of this matter.

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® market; or the Lafayette-Lake Charles-Alexandria market. Thefour indictments named a total of nine defendants, including
one defendant common to all four indictments and another
defendant common to two of the indictments. These criminal
actions have now been terminated. Some defendants plead nolo
contendere to the charges, and the remaining defendants named
in the Baton Rouge area indictment were acquitted by a jury in
August 1975. Thereafter, the other criminal charges were
dismissed on double jeopardy grounds.
The Government also filed in the Middle District of
Louisiana four companion civil actions in which it seeks injunctive
relief against the bakery producers. These civil actions are
still pending.
® Missildine I, pending in the Eastern District of
Texas, was the first private action filed. Piaintiff in
this action alleges a single conspiracy in a wide-ranging market
consisting of the entire geographic area in which any of the
defendants and certain identified and unidentified co-conspirators
sold bakery products. Although the precise boundaries of
this market are unclear, it appears to encompass the four market
areas outlined in the indictments as well as additional areas.
Named as defendants, however, are only the three defendants in-
cluded in the Shreveport-Texarkana indictment. The alleged
class includes all purchasers of bakery products within this
market from any of the defendants or co-conspirators.
®

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-3-
( Missildine II recently was filed in the Eastern District
of Texas. The substantive and class allegations in the complaint
in Missildine II track the allegations of the complaint in
Missildine I, but the defendants named in Missildine II are the
six producers that were indicted by the Government and not
named as defendants in Missildine I.
The complaint in Johnson, also pending in the Eastern
District of Texas, includes the same defendants named in
Missildime I. The allegations in the Johnson complaint track
those of the Government's Shreveport-Texarkana indictment and
focus exclusively on that market. A class of all retail grocers
in the Shreveport-Texarkana market has been certified in
® Johnson. Class members were given notice that they had until
October 15, 1976, to request exclusion from the class.
on May 3, 1976, orders were entered in Missildine I
and Johnson 4 providing that relevant discovery made in one action
may be used in the other. At a pretrial hearing on August 9, 1976.
the judge to whom Missildine I is assigned heard argument on
motions to consolidate Johnson and Missildine I. The judge stated
from the bench that while he agreed that the two actions should
be consolidated, he could not consolidate them unilaterally.
Shortly thereafter, the judge to whom Johnson is assigned entered
an order denying a renewed motion to consolidate these two actions.
There is now pending in the United States Courts of Appeals for
@ 1/ These two actions are assigned to different judges in the	Eastern District of Texas.

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® the Fifth Circuit a petition for a writ of mandamus to compel
consolidation of Missildine I and Johnson. The Fifth Circuit
Court of Appeals first stayed Missildine I and Johnson pending
the mandamus decision, and then recently stayed the mandamus
proceeding pending the Panel's decision under Section 1407.
| The complaint in Hinten, pending in the Western District
of Louisiana, 1s patterned after the Government's indictment
pertaining to the Monroe market, and names the same three defendants
included by the Government in its Monroe market indictment.
Hinten is brought on behalf of a class of all purchasers of
bakery products in the Monroe market area. On the same day that
Hinten was filed, Riddle was also commenced in the Western District
® of Louisiana. The complaint in Riddle tracks the Government's
factual allegations concerning the Lafayette-Lake Charles-Alexandria
market, and includes the same three defendants that the
Government named in its Lafayette-Lake Charles-Alexandria market
indictment. Riddle is brought on behalf of a class of all
purchasers of bakery products in the Lafayette-Lake Charles-
Alexandria market area.
Finally, Miller's, pending in the Middle District of
Louisiana, involves allegations taken almost entirely from the
Government's indictment covering the Baton Rouge market. Miller's
includes as defendants only the four producers named by the
Government in its Baton Rouge market indictment. Miller's is
brought as a class action on behalf of all purchasers of bakery
@ products in the Baton Rouge market area.

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® A group of four defendants known collectively as the
Cotton companies moves the Panel for an order pursuant to 28 U.S.C.
§1407 transferring Missildine I and II, Johnson and Miller's to
the Western District of Louisiana for coordinated or consolidated
pretrial proceedings with Hinten and Riddle. Plaintiffs in the
four actions other than Missildine I and II oppose transfer of
these actions, and Huval Baking Co., Inc., a defendant in three
of the actions, objects to transfer of some of the actions.
We find that these actions involve common questions
of fact and that transfer of Missildine I and II. Johnson, Hinten
and Riddle under Section 1407 to the Middle District of Louisiana
for coordinated or consolidated pretrial proceedings with Miller's
C will best serve the convenience of the parties and witnesses and
promote the just and efficient conduct of the litigation.
Plaintiffs in the four actions other than Missildine IT
and II argue that Johnson is inappropriate for inclusion in Section
1407 proceedings because pretrial in this action is well advanced.
These plaintiffs also maintain that the Panel should give deference
to the determination of the Texas district court declining to
consolidate Johnson and Missildine I. In addition, plaintiffs
point out that pursuant to the orders of May 3, 1976, discovery
in both actions already may be used interchangeably to the extent
that it is relevant. These plaintiffs and defendant Huval also
assert that the actions in this litigation involve separate
3/7 One or more of the Cotton companies is named as a defendant.
@ in each of the actions in this litigation.

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[ alleged conspiracies and that plaintiff in Missildine I and II
cannot properly bring its actions on behalf of purchasers in an
overall market which encompasses the separate markets involved in
each indictment.
We are not persuaded by these arguments. The two
Missildine complaints taken together allege an overall conspiracy
among all defendants in this litigation that encompasses the
markets covered in Johnson, Hinten, Miller's and Riddle, plus
some additional territory. Likewise, the classes alleged in
the two Missildine complaints embrace the classes purported or
determined in the other four notions. Thus, common factual
questions are prevalent and transfer of these actions to a single
® district under Section 1407 is necessary in order to prevent
duplicative discovery, eliminate the possibility of inconsistent
. or overlapping class determinations and otherwise streamline the
pretrial proceedings. See In re Sugar Industry Antitrust Litigation,
395 F. Supp. 1271, 1272-73 (J.P.M.L. 1975). Furthermore, we
observe that procedures are available whereby any discovery
heretofore completed in Johnson or any other action may be made
available to all interested parties in all actions. Cf. Manual
for Complex Litigation, Parts I & II, §§3.11 (rev. ed. 1973).
3/ Whether the twoMissildine actions can be maintained on behalf
of the overall class alleged therein is a matter properly within
the purview of the transferee judge and beyond the scope of the
Panel's authority under Section 1407.
®

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[ We note that the transfer we are herewith ordering
has no effect either on the determination of the Texas court
declining to consolidate Johnson and Missildine I or on the
mandamus proceeding concerning that determination which is
currently pending before the Court of Appeals for the Fifth Circuit.
The Panel's function under Section 1407 is to decide in the first
instance whether to transfer actions for coordinated or consoli-
dated pretrial proceedings. Whether and to what extent the pretrial
proceedings in the transferred actions will be coordinated or consolii-
dated is the function of the transferee judge. Clearly the term
"coordinated" and the term "consolidated" denote different judicial
functions. And we are of the view that a judge deciding whether
o° consolidate actions for all purposes is necessarily performinga different judicial function than a transferee judge who is
supervising coordinated or consolidated pretrial proceedings under
Section 1407. It is for the transferee judge in fashioning a
pretrial program that takes into account the different facets
and nuances of the litigation to determine what effect to give
the Texas court's determination declining to consolidate Missildine
I and Johnson, subject of course to any appellate mandate. See
In re Equity Funding Corporation of America Securities Litigation,
375 F. Supp. 1378, 1384 (J.P.M.L. 1974).
Each of the three districts in which actions are
pending in this litigation has been suggested by various parties |
& an appropriate transferee district. While no district
clearly stands out as the most appropriate transferee forum,

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® on balance we are persuaded that the Middle District of Louisiana
is most preferable. The Honorable E. Gordon West, to whom
Miller's has been assigned in the Middle District of
Louisiana, is uniquely well-acquainted with the facts involved
in this litigation. Judge West had supervisory jurisdiction over
the grand jury that returned the indictments upon which much of
this litigation is premised. He also accepted the pleas of
nolo contendere entered by some defendants, and presided over
the only criminal trial held. In addition, Judge West continues
to supervise the four Government civil actions that are pending
in the Middle District of Louisiana. Thus, he is in the best
position to supervise these actions toward their most just
® and expeditious conclusion. See In re Griseofulvin Antitrust
Litigation, 395 F. Supp. 1402, 1403 (J.P.M.L. 1975).
IT IS THEREFORE ORDERED that the actions listed
on the following Schedule A and pending in districts other than
the Middle District of Louisiana be, and the same hereby are,
transferred to the Middle District of Louisiana and, with the
consent of that court, assigned to the Honorable E. Gordon West
for coordinated or consolidated pretrial proceedings pursuant
to 28 U.S.C. §1407 with the action already pending there and
listed on Schedule A.
@®

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SCHEDULE A
C DOCKET NO. 282
WESTERN DISTRICT OF LOUISIANA
Daniel D. Riddle d/b/a Riddle's Restaurants, Civil Action No.
et al. v. Huval Baking Co., Inc., et al. 76-1125
Betty Hinton d/b/a Betty's Grocery, et al. Civil Action No.
v. Colonial Baking Co. of El Dorado, et al. 76-1124
MIDDLE DISTRICT OF LOUIAIANA
Miller's Food Corp., et al. v. Cotton's, Civil Action No.
Inc., et al. 76-329
EASTERN DISTRICT OF TEXAS
James L. Missildine, etc. v. Ideal Baking Civil Action No.
Company of Paris, Inc., et al. P 75-14-CAa
James Lloyd Johnson, Jr., et al. v. Ideal Civil Action No.
Baking Company of Paris, Inc., et al. M 76-10-CA
James L. Missildine,	etc. v. Cotton's Civil Action No.
® Inc., et al. P-76-47-CA

Case MDL No. 282 Document 2 Filed 05/04/15 Page 10 of 15 :
, JUBIC AE PANEL my LL : :
BEFORE THE JUDICIAL PANEL ees REE EE
ON DE _ ee
MULTIDISTRICT LITIGATION Cig 197: 2/948) SEEPATRIDA 0 (ar Co.
IN RE SOUTH CENTRAL STATES BAKERY ) DOCKET NCG-LERRZ TIET a eL po SL
PRODUCTS ANTITRUST LITIGATION )
)
James L. Missildine, etc. v. Ideal )
Baking Company of Paris, Inc., )
et al., M.D. Louisiana, )
C.A. No. 77-283 ) UE SE
James L. Missildine, etc. v. ) ETE EPA FEE
Cotton's Inc., et al., M.D. ) SE
Louisiana, C.A. No. 77-285 ) ETE REPS
OPINION AND ORDER
BEFORE JOHN MINOR WISDOM, CHAIRMAN, AND EDWARD WEINFELD¥®, =
EDWIN A. ROBSON, STANLEY A. WEIGEL, ANDREW A. CAFFREY, AND : : :
ROY W. HARPER, JUDGES OF THE PANEL Co :
o PER CURIAM Ce
This litigation consists of six private treble damage
antitrust actions brought on behalf of various classes of : N Co
bakery products purchasers. The Panel, pursuant to 28 U.S.C. :
§1407, previously transferred five of these actions to the _
Middle District of Louisiana and, with the consent of that :
court, assigned them to the Honorable E. Gordon West for LL
coordinated or consolidated pretrial proceedings with an action EE
already pending in that district. In re South Central States
Bakery Products Antitrust Litigation, 433 F. Supp. 1127 (J.P.M.L.
1977). Concerning the selection of the transferee district, CT
the Panel stated as follows:
*Judge Weinfeld did not participate in the decision of this
matter.

Case MDL No. 282, Document 2 Filed 05/04/15 Page 11 of 15
‘Each of the three districts in which : 5 EE Lo
; actions are pending in this litigation has FE
| been suggested by various parties as an to Se
| appropriate transferee district. While no
district clearly stands out as the ap- : FE FE
propriate transferee forum, on balance we
are persuaded that the Middle District of :
Louisiana is most preferable. The Honorable
E. Gordon West, to whom [an action] has been
assigned in the Middle District of Louisiana,
is uniquely well-acquainted with the facts Ce
involved in this litigation. Judge West had po ey
supervisory jurisdiction over the grand jury othr a a
that returned the indictments upon which much :
of this litigation is premised. He also ER HI
accepted the pleas of nolo contendere entered CT
by some defendants, and presided over the
only criminal trial held. In addition, Judge
West continues to supervise the four Govern-
ment civil actions that are pending in the oo
Middle District of Louisiana.l/ Thus, he is Co
in the best position to supervise these actions .
toward their most just and expeditious con- : :
clusion.
Id. at 1130 (citation omitted: footnote not in original).
At the time of the Panel's transfer order, a class con-
sisting of all retail grocers in the so-called Shreveport- oo oo
Texarkana market had been certified in one of the actions.
Id. at 1128. Pretrial proceedings on the requests for
class designation in the other five actions have since
progressed in the transferee court. On August 10, 1978, however, : REE
plaintiffs in four of the actions in the transferee district,
including the action in which a class has been certified, in
a letter to counsel for all other parties, expressed their N I.
intention to seek dismissal of those four actions with prejudice. :
No formal motions to dismiss have yet been filed.
17 These Government civil actions have now been
concluded. ’

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[ On August 28, 1978, Judge West, on his own motion, recused
himself from further participation in this litigation and re-
quested the Panel to appoint another judge to conduct coordinated
or consolidated pretrial proceedings in these actions. On
September 7, 1978, the Panel reassigned this litigation to the
Honorable Charles Schwartz, Jr., of the Eastern District of
| Louisiana, sitting by designation pursuant to 28 U.S.C.
§292(b) in the Middle District of Louisiana.
The plaintiff in the two above-captioned actions (Missildine
actions)?’ has moved the Panel to (1) remand those two actions
to the Eastern District of Texas, or (2) reconsider its original
opinion and order in this litigation and retransfer the liti-
C gation to the Eastern District of Texas.3/ Each of the ninedefendants named in the actions in the transferee district
opposes this motion. The plaintiffs who expressed their |
intention to seek dismissal of their actions have taken no
position on the motion before the Panel. We deny the motion
because a proper showing has not been made for either remand
or retransfer.
2/ Plaintiff in the Missildine actions has not expressed an
Intention to seek dismissal	of those actioms.
3/ Alternatively, movant requested that the Panel appoint a
Judge from the Eastern District of Texas to preside over the
Section 1407 proceedings in the Middle District of Louisiana.
This aspect of movant's motion was mooted, however, by the
Panel's designation of Judge Schwartz as transferee judge on
® September 7, 1978.

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Movant contends that the sole reason for the Panel's Cselection of the Middle District of Louisiana as the transferee
forum was Judge West's familiarity with the facts involved in
this litigation. The recusal of Judge West and the intended
dismissal of four of the six actions in this litigation, which
would leave only the Missildine actions, dissolve the rationale
for conducting coordinated or consolidated pretrial proceedings
in that forum, movant urges. Moreover, movant maintains,
discovery documents have not been accumulated in that district
by the parties, and a number of defendants have expressed an
intention to produce documents at their respective business
offices located outside that district. Under these circum-
stances, movant argues, remand of the Missildine actions is
appropriate. ®
~ Movant asserts that even if the other four actions in this
| litigation are not dismissed, the Eastern District of Texas
is the most appropriate forum in which to conduct the co-
ordinated or consolidated pretrial proceedings, and this liti-
gation should be retransferred there. Movant offers no
arguments in support of his contention that the Eastern District
of Texas is a more appropriate transeree forum, however.
We find these arguments unpersuasive. We will remand an
action or actions prior to the completion of coordinated or
consolidated pretrial proceedings only upon a showing of good
cause. See In re CBS Color Tube Patent Litigation, 342 F. Supp.
®

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C 1403, 1405 (J.P.M.L. 1972). Movant here has failed to make any
such showing. We note that, on the basis of the record before
us, there can be no assurance that the four actions in the
transferee district other than the Missildine actions will be
dismissed.’ If motions for dismissal are filed in those
four actions, consideration of those motions by the transferee
court would require further proceedings in accordance with
Rule 23(e), Fed.R.Civ.P. in the action in which a class has
already been certified, and proceedings concerning the appli-
cability of Rule 23(e) in the other three actions.’ See
also Roper v. Consurve, Inc., 578 F.2d 1106, 1110 (5th Cir.
1978). Furthermore, the class on whose behalf certification
C is sought in the Missildine actions includes the members of theone class already certified and the members of the three pur-
ported classes in the other four actions in the transferee
district. In re South Central States Bakery Products Liti-
gation, supra, 433 F. Supp. at 1128-29. Thus, remand of the
Missildine actions at the present time would be premature, and
retention of those actions before the transferee court is
necessary to promote the just and efficient conduct of the
entire litigation.
47 We also note that some opponents of remand state in their
papers before us that additional actions may yet be filed in
this litigation, thus necessitating further Section 1407
proceedings. For example, these opponents assert, counsel for
plaintiffs in the four actions other than movant's has indicated
that certain of the named plaintiffs in those cases may wish
to pursue the litigation in individual actions.
C 5/ For a discussion of the applicability of Rule 23(e) todismissal of a purported class action during the period between
the filing of the action and the class determination, see 7A
Wright and Miller, Federal Practice and Procedure §1797, at
236-37 (1972 ed.).

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In the past we have noted that motions to retransfer will Cbe granted only in the most extraordinary instances. See )
In re Helicopter Crash in Germany on September 26, 1975, 443
F. Supp. 447, 450 (J.P.M.L. 1978); In re Air Crash Disaster in
the Ionian Sea on September 8, 1974, 438 F. Supp. 932, 934
(J.P.M.L. 1977); In re Midwest Milk Monopolization Litigation,
435 F. Supp. 930, 932 (J.P.M.L. 1977). We find no basis for
retransfer here.
IT IS THEREFORE ORDERED that the motion for remand or
retransfer pursuant to 28 U.S.C. §1407 of the actions entitled
James L. Missildine, etc. v. Ideal Baking Company of Paris,
Inc., et al., M. D. Louisiana, C.A. No. 77-283, and James L.
Missildine, etc. v. Cotton's Inc., et al., M. D. Louisiana,
C.A. No. 77-285, be, and the same hereby is, DENIED. C
®