IN RE: Cement and Concrete Antitrust Litigation

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BEFORE THE JUDICIAL PANEL TE PE
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MULTIDISTRICT LITIGATION Pt A ©
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IN RE CEMENT AND CONCRETE ANTITRUST ) DOCKET NOg2965 Tai, Co
LITIGATION ) BI
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OPINION AND ORDER TE 3 22
—-— GE 3
BEFORE JOHN MINOR WISDOM, CHAIRMAN, AND EDWARD WEINFELD, y ‘
EDWIN A. ROBSON, JOSEPH S. LORD, III* STANLEY A. WEIGEL, id iT:ANDREW A. CAFFREY, AND ROY W. HARPER¥% JUDGES OF THE PANEL. ro _ ST
PER CURIAM .
This litigation consists of 21 actions pending in two
federal districts: twenty in the District of Arizona and
one in the Central District of California. -
On September 23, 1976, following a year-long investi-
gation,	the Arizona Attorney General filed a complaint in the oo
District of Arizona charging the Portland Cement Association :
(pCa) (a trade group composed of over 40 major cement pro- Ce oo
ducers), the Arizona Rock Products Association (ARPA) (a
trade group whose members include Arizona grout, rock
products and ready-mix concrete producers), five cement :
companies and thirteen ready-mix concrete companies with vio- Co :
lations of Section 1 of the Sherman Act and Arizona's version
i/of the UniformAntitrustAct . Essentially, PCA and the cement
companies are alleged to have combined and conspired since
*Judges Lord and Harper took no part in the consideration or
decision of this matter. '
1/Ariz. Rev. Stat. Ann. §44-1402.

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. 1958 to maintain, stabilize, and fix the price for cement SR
sold within Arizona; and ARPA, one cement company, and the oo
ready-mix concrete companies are alleged to have acted |
likewise since at least 1951 with respect to the sale of .
ready-mix concrete, grout and rock products within Arizona.
Ready-mix concrete is differentiated from cement in that
the former is a product which is the result of a mixture Co oo oo
of cement with other materials such as sand, limestone and SE LE
water. |
Since the filing of the Arizona Attorney General's action,
nineteen additional actions have been filed in the District
of Arizona alleging combinations and conspiracies in the
cement and ready-mix concrete industries. Seven of these Co ’
actions have been brought against both cement and ready-mix i.
concrete defendants. The allegations against the ready-mix
concrete defendants in these seven actions are limited to charges SE
of antitrust violations within Arizona. With respect to the
charges brought against the cement defendants in these seven
actions, five complaints allege nationwide violations and
two complaints allege violations within Arizona. The re~ oo |
maining twelve actions have been brought against cement in- A
dustry defendants only. Of these actions, seven allege
nationwide violations, two allege violations within Arizona,
one alleges violations within Arizona and California, one ’ :

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oo CC -3-
alleges violations within Colorado, and one alleges vio-
® lations within Oregon. The PCA and five cement companies
are each defendants in nineteen or more actions in this
litigation, including the California action. Thirty-five
other cement companies are each currently named as
defendants in eleven or more actions, while ARPA and :
thirteen ready-mix companies are each defendants in five
or more actions.
Seventeen of the actions pending in the District of
Arizona have been filed as class actions. The various classes
sought to be represented in these actions range from specific
groupings such as building materials dealers, general building
and paving contractors, or subcontractors engaged in the
@ installation of floor and wall tile, to broad geographic
classifications embracing purchasers within the State of
Arizona, within the State of Colorado, within the State of
‘Oregon, within the State of Texas, or within the entire
United States.
The California action has been brought as a class action
by the State of California on behalf of all political sub-
divisions and public agencies and districts within California
which have built projects or structures constructed in whole
or in part of cement. The defendants, PCA, National
Association of Credit Management, Inc., and nine cement
companies, are charged with violating Section 1 of the
® |

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Sherman Act by engaging, since at least 1970, in a com-
bination and conspiracy to fix, maintain and stabilize ®
prices for cement sold within the State of California.
The defendants are also charged with violations of the -
Cartwright aot California's antitrust statute. :
The State of California has moved the Panel for an
order pursuant to 28 U.S.C. §1407 transferring the California
action to the District of Arizona for coordinated or con-
solidated pretrial proceedings with the actions pending
there. Plaintiffs in the Arizona actions (the Arizona
plaintiffs) support California's motion. Thirty-nine
defendants agree that transfer is desirable but cross-
: move that the Northern District of Illinois, the Northern
District of Texas, some other more centrally located forum, ®
or the Central District of California, be selected as the B
transferee district. Three defendants oppose transfer
and two defendants request that transfer be deferred pending
the outcome of certain jurisdictional motions in the Arizona
actions.
We find that these actions involve common questions of
fact and that transfer of the California action to the
District of Arizona pursuant to Section 1407 for coordinated
or consolidated pretrial proceedings with the actions pending
2/California Business and Professions Code §§16720 et seq.
_

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® there will best serve the convenience of the parties andwitnesses and promote the just and efficient conduct of the
litigation.
Some defendants urge that there are really three
separate conspiracies (local Arizona concrete, local
Arizona cement, and national cement) alleged in the actions
before us. They contend that the national conspiracy
actions bear no nexus to the Arizona Attorney General's
action and others limited to claims arising from conduct
within the State of Arizona. These defendants thus con-
tend that there are insufficient common questions of fact
to warrant centralization of the national conspiracy actions,
including the California action, in the same district as the
@ Arizona conspiracy actions.
We are persuaded, however, that all actions in this
litigation belong in a single district for pretrial.
Cement industry defendants in all actions are charged with
agreeing upon delivered prices for cement, establishing
uniform freight allowances and credit terms, and allocating
territories and customers. The fact that the range of }
discovery may be broader in those actions alleging con-
spiracies in areas encompassing or outside the State of
Arizona does not negate the substantial amount of discovery
shared by all actions concerning the existence, scope and
effect of conspiratorial activity in the cement industry.
See In re Sugar Industry Antitrust Litigation, 395 F. Supp.
® 1271, 1273 (J.P.M.L. 1975). At best, defendants' concern

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can be viewed as one involving the degree and manner of Qo
coordination of pretrial activities. And that is a matter
to be addressed to the transferee judge, not the Panel.
In re Equity Funding Corporation of America Securities
Litigation, 375 F. Supp. 1378, 1384-85 (J.P.M.L. 1974).
Furthermore, since duplicating or overlapping classes are
sought in most of the actions, transfer to a single
district is desirable in order to avoid the possibility
of inconsistent class determinations. See In re Sugar
Industry Antitrust Litigation, supra, 395 F. Supp. at
1273. |
Many defendants argue that the plaintiffs are misusing
Section 1407. These defendants depict a scenario in which
plaintiffs have agreed to file all actions but one in the ®
District of Arizona and then seek transfer of the California
action to the District of Arizona. before actions or claims
in the Arizona forum are either transferred to other
federal districts under 28 U.S.C. §§1404 or 1406, or dis-
missed and subsequently refiled in other federal districts,
because the Arizona district court lacks jurisdiction over
some of the parties. These defendants contend that the
plaintiffs have relied on the Panel's traditional reluctance
to transfer actions to a district in which no related action
is pending, in order to force a quick choice between the
District of Arizona and the Central District of california.
®

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® They urge the Panel to transfer the litigation elsewhere
or defer the determination on the question of transfer
until the anticipated filing of actions in different }
federal districts has occurred and thereby provided the
Panel with a broader choice of possible transferee districts.
Included in the other contentions raised by defendants
in opposition to transfer of this litigation to the District
of Arizona are that that district is not convenient for
purposes of discovery because no cement company defendant
is headquartered in Arizona, that a more centrally located
forum is desirable, and that the Arizona district court
dockets are already suffering from a backlog of actions.
® On balance, we are persuaded that the District ofArizona is the most appropriate transferee forum for this
litigation. Arizona is the location of the year-long
investigation which preceded the filing of any actions in
this litigation. It is not surprising, therefore, that the
overwhelming majority of plaintiffs would elect to file
suit in the federal district in which the files and docu-
ments generated by the Arizona Attorney General's
investigation are located. In a related context, we have
noted that the situs of investigative materials assembled
by grand juries is a factor contributing to the choice of
a transferee district. In re Sugar Industry Antitrust
PY

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Litigation, supra, 395 F. Supp. at 1274. Moreover, the ®familiarity which Judge Muecke has developed with this
litigation as a result of the pretrial proceedings that
have already been conducted in the actions pending in the
District of Arizona weighs significantly in favor of that
district as the transferee forum. See In re Griseofulvin
Antitrust Litigation, 395 F. Supp. 1402, 1403 (J.P.M.L.
1975). Judge Muecke's service as the transferee judge will
thus best utilize judicial resources while enhancing the just
and expeditious termination of all actions. Additionally,
a related state court antitrust action is pending in Arizona
which can be coordinated with the federal proceedings there.
The possibility of promoting this state/federal coordination is
another factor favoring the selection of the District of ®
Arizona as the transferee forum. See In re Bomb Disaster
at Roseville, California, on April 28, 1973, 399 F. Supp.
1400, 1403 (J.P.M.L. 1975). We note also that Phoenix is
well served by air and other means of transportation. :
And witnesses can still expect to be deposed near where
they reside. See Fed.R.Civ.P. 45(d) (2).
Furthermore, we see no reason to delay our decision
in this matter until the addition of other districts in
which related actions are pending. While it is true that
we have been reluctant to select as a transferee forum a
district in which no related action is pending, see, e.g.,
| ®

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. Ce
: In re Air Crash Disaster Near Papeete, Tahiti, 397 F. Supp.
® 886, 887 (J.P.M.L. 1975), the source of our traditional
restraint is not jurisdictional. In appropriate circum-
stances we would order transfer of a group of actions to :
a district in which none of the constituent actions is
pending.
IT IS THEREFORE ORDERED that, pursuant to 28 U.S.C.
§1407, the action listed on the following Schedule A
and pending in the Central District of California be,
and the same hereby is, transferred to the District of |
Arizona and, with the consent of that court, assigned to
the Honorable C.A. Muecke for coordinated or consolidated
pretrial proceedings with the actions listed on Schedule A
LC) and pending in that district. |
®

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| Schedule A DOCKET NO. 296
DISTRICT OF ARIZONA o
State of Arizona v. Portland Cement Assn., Civil Action No.
et al. Civ 76-672-Phx~CAM
York Concrete Co., et al. v. Portland Civil Action No.
Cement Assn., et al. Civ 76-914-Phx~CAM
Mesa Apartment Assoc., etc., et al. v. Civil Action No.
Portland Cement Assn., et al. Civ 76-769-Phx~-CAM
Rubenstein Development Co., et al. v. Civil Action No.
Portland Cement Assn., et al. Civ 76-710-Phx-CAM
Bill Carson, et al. v. Portland Cement Civil Action No.
Assn., et al. Civ 76-680-Phx~-CAM
Woolridge Construction Co. v. Portland Civil Action No.
Cement Assn., et al. Civ 76-913-Phx~-CAM
Ariz. Slump Block, Inc. v. Arizona Civil Action No.
Portland Cement Co. Civ 76-488~-Phx~CAM
Singer Housing Co., et al. v. Portland Civil Action No.
Cement Assn., et al. Civ 76-827-Phx~-CAM
Ora B. Hopper & Son, Inc. Construction Civil Action No. i& Development v. Amcord, Inc., et al. Civ 76-839-~Phx~-CAM
State of Colorado v. Portland Cement Civil Action No.
Assn., et al. Civ 76-929-Phx~-CAM
The Leavell Co., et al. v. Portland Cement Civil Action No.
Assn., et al. Div 76-814~Phx-CAM
Katterjohn, Inc., et al. v. Portland Civil Action No.
Cement Assn., et al. Civ -76~854-Phx~CAM
Picou's Builders Supply, Inc. Vv. Civil Action No.
Portland Cement Assn., et al. Civ 76-926-Phx~-CAM
Fred Bandas & Sons, Inc., et al. v. Civil Action No.
Portland Cement Assn., et al. Civ 76-855-Phx~CAM
Globe Building Materials Co. v. Portland Civil Action No.
Cement Assn., et al. Civ 76-293-Phx~-CAM
Hechinger Co. v. Portland Cement Assn., Civil Action No.
et al. Civ 76-853~Phx~-CAM

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Schedule A DOCKET NO. 296
DISTRICT OF ARIZONA - continued
® Public Storage, Inc., et al. v. Civil Action No.
Portland Cement Assn., et al. Civ 77-48-Phx-CAM
: City of Austin v. Portland Cement Civil Action No.
Assn., et al. Civ-77-54-Phx~CAM
Vincent S. Perry, et al. v. Alpha Civil Action No.
Portland Ind., et al. Civ 77-49-Phx-CAM
‘State of Oregon v. Portland Cement Civil Action No.
Assn., et al. Civ 77-56-Phx~CAM
CENTRAL DISTRICT OF CALIFORNIA
The State of California, etc. v. Portland Civil Action No.
Cement Assn., et al. CV76-4073~FW :

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i. wl SR
BEFORE THE JUDICIAL PANEL ed So Co
ON ran 1070 oo
MULTIDISTRICT LITIGATION Foo do isis a i	[a3EONS be EY A
IN RE CEMENT AND CONCRETE ) DOCKET:"NO,;;2296:). ZaANTITRUST LITIGATION ) B E-
State of Missouri v. Portland Cement Association, et al., ) :
W. D. Missouri, C. A. No. 78-4192-CV-C )
State of Utah v. Portland Cement Association, et al., )
D. Utah, C. A. No. C/8-0479 )
State of Nebraska v. Portland Cement Association, et al., ) oo SEU
D. Nebraska, C. A. No. CV/8-L-242 ) HU
State of New Mexico v. Portland Cement Association, et al.,) EE
D. New Mexico, C. A. No. Clv-78-308-C )
State of Montana v. Portland Cement Association, et al., ) Co :
D. Montana, C. A. No. CV-/8-72BU )
OPINION AND ORDER
BEFORE MURRAY I. GURFEIN, CHAIRMAN, AND EDWIN A. ROBSON, :
STANLEY A. WEIGEL, ANDREW A. CAFFREY, ROY W. HARPER, AND CHARLES
R. WEINER, JUDGES OF THE PANEL. :
PER CURIAM Co |
The Panel, pursuant to 28 U.S.C. §1407, previously transferred
an action from the Central District of California to the N
District of Arizona for coordinated or consolidated pretrial |
proceedings with several actions pending there. In re Cement Co
and Concrete Antitrust Litigation, 437 F. Supp. 750 (J.P.M.L. :
1977). Twenty-eight actions in this docket are presently pending
in the transferee district. Plaintiffs in the actions in the : To
transferee district include a variety of purchasers of cement
and cement products, including ready-mix concrete. Representation
of several different classes of purchasers of cement and cement :
products has been sought in these actions. Included are classes :
comprised of specific groupings of purchasers, such as building
materials dealers, general building and paving contractors, or

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p subcontractors engaged in the installation of floor and wall : _
DY cites and classes which are geographically defined, embracing |
purchasers within the states of Arizona, California, Colorado, Kansas, | |
Oregon, or Texas, or within the entire United States. Defendants
include the Portland Cement Association (PCA) (a trade group
composed of over 40 major cement producers), and a number of RE oo
producers of cement and cement products. The complaints in these Te -
actions charge defendants with conspiring to fix, maintain and a |
stabilize the price of cement and cement products in violation
of, inter alia, Section 1 of the Sherman Act, 15 U.S.C. §1.
Several complaints allege a national conspiracy while other
complaints allege conspiracies within specific states. h
The five above-captioned actions (Missouri, Utah, Nebraska, ’ 3 -
New Mexico and Montana actions) have each been brought by a :
specific state as a class action. The states of Nebraska and So |
Montana seek to represent all persons and entities within the
respective state that have built or caused to be built any structure
containing cement or cement products. The states of Missouri, : =
Utah and New Mexico each seek to represent the named state, its .
various departments and agencies, and all other political subdivisions oo
and governmental entities within the state, excluding agencies
of the United States Government, that have purchased cement and
cement products. Defendants include the PCA and a number of
producers of cement and cement products. All defendants in these
five actions have also been named as defendants in one or more

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@. the actions in the transferee district. The complaint in
each of the five actions charges defendants and unnamed
co-conspirators with conspiring to fix, maintain and stabilize
the price of cement and cement products within the relevant state
in violation of, inter alia, Section 1 of the Sherman Act.
Because the Missouri action appeared to share questions
of fact with the actions in this litigation previously centralized
in the District of Arizona, the Panel, pursuant to Rule 9,
R.P.J.P.M.L., 78 F.R.D. 561, 567-68 (1978), entered an order
conditionally transferring the Missouri action to the District
of Arizona for inclusion in the coordinated or consolidated pretrial
proceedings occurring there. Plaintiff State of Missouri and
@. plaintiffs in the actions in the transferee district favor.
transfer. All defendants in the Missouri action oppose transfer.
‘Pursuant to Rule 10(b), R.P.J.P.M.L., id. at 568, the Panel
ordered the parties to show cause why the Utah, Nebraska, New
Mexico and Montana actions should not be transferred to the District
of Arizona for inclusion in the centralized pretrial proceedings.
Plaintiffs in each of these four actions favor transfer. Three
defendants that are named in each of the four actions oppose
transfer at the present time. The other 42 defendants in the
Nebraska action oppose transfer of that action at the present
time.
We find that these five actions involve common questions
CC fact with the previously centralized actions and that transfer	_under Section 1407 of these five actions to the District	"of Arizona

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for inclusion in the coordinated or consolidated pretrial I
occurring there will serve the convenience of the parties and
witnesses and promote the just and efficient conduct of the
litigation.
Defendants in the Missouri action assert that the factual
questions involved in the Missouri .action are more limited in
scope than and primarily distinct from the factual questions
involved in the actions in the transferee district. Therefore,
these defendants contend, the Missouri action is inappropriate
for inclusion in the centralized pretrial proceedings. In addition,
these defendants and the other opponents of transfer request
that the Panel defer decision on the question of transfer pending
the resolution of various motions to dismiss that have been filed o
in these five actions on grounds of improper jurisdiction or ®
venue or of failure to state a claim on which relief may be granted.
We find these arguments unpersuasive. The national conspiracy
“alleged in some of the actions in the transferee district naturally
encompasses the statewide conspiracy alleged in each of the
present five actions, and therefore these five actions and the
actions in the transferee district clearly involve many common
questions of fact. As a result, discovery and other pretrial
proceedings essential to development of the claims in each of
the present actions will overlap discovery and other pretrial
proceedings that are integral to the actions in the transferee
district. Inclusion of the present five actions in the centralized
pretrial proceedings is thus necessary in order to prevent sonticatv)

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®. eliminate the possibility of inconsistent pretrial :
rulings and streamline all other pretrial proceedings. See
In re Airport Car Rental Antitrust Litigation, 459 F. Supp.
1006, 1007 (J.P.M.L. 1978). In addition, the statewide classes
for which representation is sought in each of these five actions
are encompassed within the national class for which representation
is being sought in the transferee district. Transfer is especially
important to ensure consistent treatment of the class action
issues. See In re Hawaiian Hotel Room Rate Antitrust Litigation,
438 F. Supp. 935, 936 (J.P.M.L. 1977).
We see no reason to defer decision on the question of transfer
because of the pendency of certain motions for dismissal in these
Q These motions can be presented to and decided by the
transferee court following transfer. See, e.g., In re Sinking
of the Motor Vessel Ukola, =F. Supp. ___, (J.P.M.L.,
filed Dec. 15, 1978) (slip opinion at 6); In re Commonwealth
0il/Tesoro Petroleum Securities Litigation, 458 F. Supp. 225,
230 (J.P.M.L. 1978).
IT IS THEREFORE ORDERED that the actions entitled State
of Missouri v. Portland Cement Association, et al., W. D. Missouri,
C. A. No. 78-4192-CV-C; State of Utah v. Portland Cement Association,
et al., D. Utah, C. A. No. C78-0429; State of Nebraska v. Portland
Cement Association, et al., D. Nebraska, C. A. No. CV78-L-242;
State of New Mexico v. Portland Cement Association, et al., D.
New Mexico, C. A. No. CIV-78-808-C; and State of Montana v. Portland
€ Association, et al., D. Montana, C. A. No. CV-78-72BU,

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: . ®be, and the same hereby are, transferred to the District of Arizona
and, with the consent of that court, assigned to the Honorable
C. A. Muecke for inclusion in the coordinated or consolidated
pretrial proceedings occurring there.
9
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