IN RE: Airport Car Rental Antitrust Litigation

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i
BEFORE THE JUDICIAL PANEL “ogy Pay oa	ON rr 7, 5
MULTIDISTRICT LITIGATION y Fey “ig! SEEgp yo Lo
IN RE AIRPORT CAR RENTAL ) 47 8 po) : Cs
ANTITRUST LITIGATION ) DOCKET NIE 0 7% Do	~ ; I , . i i
OPINION AND ORDER RYHE pi X35, |	137
9] Ga”
BEFORE JOHN MINOR WISDOM, CHAIRMAN, AND EDWARD WEINFELD, EDWIN
A. ROBSON, JOSEPH S. LORD, III*, STANLEY A. WEIGEL, ANDREW A.
CAFFREY*, AND ROY W. HARPER, JUDGES OF THE PANEL. Co
PER CURIAM
This litigation consists of six actions pending in five
districts -- two in the Northern District of California and one
each in the Central District of California, the Western District Co
of Texas, the Southern District of Ohio and the Southern District Co
of Florida. Plaintiff in one of the Northern California actions
is Dollar Rent A Car System (Dollar action). Plaintiffs in the : Co
other five actions are Budget Rent A Car Corporation and various Co
Budget franchises (Budget actions). Hertz Corporation (Hertz)
and Avis Rent A Car System, Inc. (Avis) are named as defendants :
in all six actions and National Rent A Car System, Inc. (National) oo Co
1/ : Co EE .
is presently named as a defendant in the five Budget actions. oo TE
Hayes Leasing Company (Hayes), allegedly an Avis franchise, is Co
named as a defendant in the Budget action pending in Texas.
* Judges Lord and Caffrey took no part in the decision of this : co
matter. }
1/ National was originally a defendant in the Dollar action I
also. National has been dismissed from that action, however, Co
pursuant to a settlement between National and Dollar.

Case MDL No. 338 Document 2 Filed 05/05/15 Page 2 of 13° To |
The allegations are substantially the same in the complaints rey
in all six actions. Plaintiffs charge that the defendants have . CL
conspired in violation of, inter alia, Sections 1 and 2 of the :
Sherman Act to restrain trade unreasonably and to monopolize oo
‘ | trade in the market of car rental concessions located on airport
premises. Auto rentals at on-airport concessions allegedly
B account for more than two-thirds of all auto rentals. Plaintiffs : EER
allege that defendants have engaged in the following practices, | Lo B
inter alia, in furtherance of the conspiracy: (1) Defendants »
have established contractual criteria and eligibility require-
ments for auto rental concessions at airports that are designed .
’ “to exclude competitors from the on-airport auto rental market; BET
(2) Defendants have in bad faith opposed applications from other oo |
competitors for entry into the on-airport auto rental market; oo
(3) Defendants have induced airport officials to prohibit ad- <7
vertising at airports by car rental companies other than A
defendants; (4) Defendants have harrassed smaller competitors : o
to prevent them from penetrating the on-airport auto rental oo
market; (5) Defendants have induced airport officials to ex- ol
clude competitors; and (6) Defendants have engaged in predatory FR
pricing practices to eliminate competition and then have SE
arbitrarily raised prices after competition has been destroyed. oo
Several parties move the Panel pursuant to 28 U.S.C. §1407 N
for transfer of the actions pending in districts other than the :
Northern District of California to that district for coordinated a i
or consolidated pretrial proceedings with the actions pending
there. Only partial opposition to the motions has been

. : Case MDL No. 338 Document 2 Filed 05/05/15 Page	3 of 13
expressed. Plaintiff Dollar opposes inclusion of the Dollar
® action in Section 1407 proceedings and defendant Hayes requests
that the claims against it in the Texas action be excluded from
transfer by separation and simultaneous remand of those claims.
We find that these six sctions? involve common questions of
fact concerning the alleged conspiratorial activities of the de-
fendants and that centralization of these actions in the Northern
District of California for coordinated or consolidated pretrial
proceedings will serve the convenience of the parties and witnesses
and promote the just and efficient conduct of the litigation.
Dollar mainly argues that because pretrial proceedings in
the Dollar action are much further advanced than pretrial pro-
ceedings in any of the Budget actions, progress in the Dollar
® action would be delayed if the Dollar action were coordinated
or consolidated with the Budget actions. Hayes, noting that
it is a defendant in only one of the six actions, asserts that
the factual and legal issues concerning Hayes are unique, that
discovery relating to Hayes will be geographically localized, and
that therefore the claims against Hayes should be allowed to
proceed separately.
Since the Dollar action is already pending in the district
we have selected as the transferee forum for this litigation,
we believe that the question of whether the Dollar action should
2/7 One partyadvises the Panel that another related action
Is presently pending in the Southern District of New York -- ERC
Industries, Inc., et al. v. Hertz, Inc., et al., C.A. Wo. 77 Civ.
2524. This action will be treated as a tag-along action. See
® Rules 1, 9 and 10, R.P.J.P.M.L., 63 F.R.D. 253, 255, 259-60 (1975).

Case MDL No. 338 Documegpt2 Filed 05/05/15 Page	4 of 13 : .
be included in the coordinated or consolidated pretrial proceed-
ings, and if so to what extent, is more properly left to the @
discretion of the transferee judge. See In re Liquid Carbonic
Truck Drivers Chemical Poisoning Litigation, 423 F. Supp. 937,
939 (J.P.M.L. 1976); In re National Airlines, Inc. Maternity
Leave Practices and Flight Attendant Weight Program Litigation,
399 F. Supp. 1405, 1406-07 (J.P.M.L. 1975), bpollar's concern
about Section 1407 proceedings delaying progress in the Dollar
action is wholly without merit because the very nature of those
proceedings is to ensure the most expeditious processing of
the entire litigation. Id. at 1407. We note that procedures
are available to make discovery already completed in the more
advanced Dollar action applicable to the other actions. See
Manual for Complex Litigation, Parts I and II, §§3.11 (rev. ed. ®1977).
The fact that Hayes is a defendant in only one action
does not ipso facto merit the exclusion of the claims against
it from transfer under Section 1407. An examination of the
Texas complaint reveals that Hayes' liability may rest on
what information was exchanged between it and the other defend-
ants concerning the elements of the alleged conspiracy that is
common to all actions and to all claims in those actions. Hence,
discovery on the questions of fact involving Hayes is tied to the
other common discovery. See In re Celotex Corporation "Technifoam”
Products Liability Litigation, 68 F.R.D. 502, 504-05 (J.P.M.L.
1975). Of course, Hayes need not participate in pretrial proceed-
ings unrelated to the claims against it, see, e.9., Manual for ([
Complex Litigation, Parts I and IT 552.31 (rev. ed. 1977), and

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® the transferee judge has broad discretion to design a pretrialprogram that will allow discovery on any issues unique to Hayes
to proceed independently of and concurrently with the common pre-
trial matters, see In re Republic National-Realty Eguities Se-
curities Litigation, 382 F. Supp. 1403, 1405-06 (J.P.M.L. 1974).
Furthermore, witnesses will likely be deposed in proximity to
where they reside, thereby minimizing any inconvenience to
Hayes that may result from transfer under Section 1407. See
Fed. R. Civ. P. 15d) (2). The transferee judge will have the
best vantage point to determine whether the claims against
Hayes are ready for remand, and if he reaches that conclusion,
he may recommend that the Panel remand those claims. Rule 11,
R.P.J.P.M.L., 65 F.R.D. 253, 260-63 (1975). See In re Midwest
@ iix vonopolization Litigation, 386 F. Supp. 1401, 1403 (J.P.M.L.
1975); In re Four Seasons Securities Laws Litigation, 361 F. Supp.
636, 638 (J.P.M.L. 1973).
The Northern District of California is clearly the most
appropriate transferee district for this litigation. The two
actions pending in that district are already being coordinated
by the Honorable Charles B. Renfrew, the pretrial proceedings
in one of those actions are well advanced, and he thus has had
an opportunity to become acquainted with the issues involved in
this litigation. Accordingly, transfer to the Northern District
of California will best expedite all the actions. See In re
Griseofulvin Antitrust Litigation, 395 F. Supp. 1402, 1403 (J.P.
® M.L. 1975).

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IT IS THEREFORE ORDERED that, pursuant to 28 U.S.C. §1407, @the actions listed on the following Schedule A and pending in
districts other than the Northern District of California be, and
the same hereby are, transferred to the Northern District of
California, and with the consent of that court, assigned to
the Honorable Charles B. Renfrew for coordinated or consolidated
pretrial proceedings with the actions already pending there and
listed on Schedule A.
®
Q

- a Case MDL No. 338 Document 2 Filed 05/05/15 Page 7 of 13
® SOUTHERN DISTRICT OF FLORIDA DOCKET NO. 338
Budget Rent A Car Co. of Florida, Inc., Civil Action
et al. v. The Hertz Corp., et al. No. 77-3467-Civ-CA
SOUTHERN DISTRICT OF OHIO
Byrnic, Inc., et al. v. The Hertz Corp., Civil Action
et al. No. C-1-77-594
CENTRAL DISTRICT OF CALIFORNIA
Budget Rent-A-Car of Washington-Oregon, Inc., Civil Action
et al. v. The Hertz Corp., et al. No. CV77-3967-DWW
WESTERN DISTRICT OF TEXAS |
Texas Auto Services, InC. vy. The Hertz Civil Action
Corp., et al. No. A=-77-CA-200
NORTHERN DISTRICT OF CALIFORNIA
Dollar Rent A Car Systems, Inc. v. Hertz Corp., Civil Action
et al. No. C75-2650-CBR
® Budget Rent A Car Corp., et al. v. The Hertz Civil Action	Corp., et al. No. C77-0876-CBR

) ) Case MDL No. 338 Document 2 Filed 05/05/15 Page 8 of 13
: JUDICIAL PANEL 04
Co BUETIZISTRICT LIMEATION UE
BEFORE THE JUDICIAL PANEL FILED N
oN NOY 15 1973 PYAR BR
MULTIDISTRICT LITIGATION hE vd Co	PATRICIA DL 00 id So Co
IN RE AIRPORT CAR RENTAL ) CER RE StesANTITRUST LITIGATION ) I
)
Pacific Auto Rental Corp., ) DOCKET NO. 338
etc. v. The Hertz Corp., et )
al., D. Hawaii, C.A. No. )
OPINION AND ORDER SE
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.
PER CURIAM
The Panel previously centralized several actions oo
in this litigation in the Northern District of California } To
for coordinated or consolidated pretrial proceedings =
before the Honorable Charles 3. Renfrew. In re Airport : = on
Car Rental Antitrust Litigation, 448 F. Supp. 273 (J.P.M.L. : EE
1978) (MDL-338 actions). Plaintiffs in the MDL-338 actions oo
include Dollar Rent A Car System (Dollar), Budget Rent |
A Car System, Inc. (Budget System), Budget Rent A Car Co -
Corp. (the latter two collectively referred to as Budget el
parties), and various Budget franchises. Plaintiff in Co
one MDL-338 action seeks to represent a class comprised
of all Budget franchises in the United States. Defendants -
in the MDL-338 actions are Hertz Corp. (Hertz), Avis 3
Rent A Car System, Inc. (Avis), National Rent A Car System, 7
Inc. (National), and an Avis franchise in Texas.

ST Case MDL No. 338 Document 2 Filed 05/05/15 Page 9 of 13° Co
-2- oo
The allegations by the plaintiffs in the MDL-338 oo
| actions are essentially that the defendants have conspired RE
’ in violation of, inter alia, Sections 1 and 2 of the oo
Sherman Act to restrain trade unreasonably and to monopolize
trade throughout the United States in the market of car
rental concessions located on airport premises. - L
The above-captioned action (Hawaii action) has been FE
brought by a Dollar franchise in Hawaii./ Defendants =
are Hertz, Avis, National and Budget System, allegedly
the only companies that have car rental facilities located
on’ the premises of Honolulu International Airncrt. Plain- | SI
tiff in the Hawaii action alleges that the defendants - -
have conspired in violation of, inter alia, Sections }
1 and 2 of the Sherman Act to restrain trade unreasonably | CL
and to monopolize trade in the market of car rental con- | Soe
cessions located on the premises of Honolulu International | no
Airport and in the State of Hawaii. The significant Eh
difference between the Hawaii action and the MDL-338 Ce
actions is that Budget System, a plaintiff in one of : Ea
the MDL-338 actions, is named as a defendant in the Hawaii SUE oo
action. oo
I7Dollar	was initially a plaintiff in the Hawaii action oo .
also but, pursuant to its own motion, was dismissed as co
a plaintiff in that action. a

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® Because the Hawaii action appeared to involve common
questions of fact with the MDL-338 actions, the Panel,
pursuant to Rule 9, R.P.J.P.M.L., 65 F.R.D. 253, 259-60
(1975), entered an order conditionally transferring the
Hawaii action to the Northern District of California
for inclusion in the coordinated or consolidated pretrial
proceedings occurring there. Plaintiffs in all the MDL-338
actions oppose transfer. Plaintiff in the Hawaii action
and defendants Hertz, Avis and National favor transfer.
We find that the Hawaii action and the MDL-338 actions
involve common questions of fact and that transfer pursuant
to 28 U.S.C. §1407 of the Hawaii action to the Northern
C District of California for inclusion in the coordinated
or consolidated pretrial proceedings occurring in that
district will serve the convenience of the parties and
witnesses and promote the just and efficient conduct
of this litigation.
Although the opponents of transfer assert that the
Hawaii action is significantly different in scope from
the MDL-338 actions, they do not deny that the Hawaii
action and the MDL-338 actions involve common questions
of fact. Rather, they focus their arguments on the contention
that the ongoing pretrial proceedings in the transferee
district would be disrupted by inclusion of the Hawaii
® action in those proceedings. Opponents assert that since

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the date transfer was originally ordered by the Panel, ®
counsel for the Budget parties have taken a leading role
in coordinating pretrial activity on behalf of all plaintiffs
in the MDL-338 actions. If the Hawaii action, which
names Budget System as a defendant, is included in the
centralized actions by transfer under Section 1407, Budget
System would thereafter be precluded from discussing
pretrial strategy and sensitive discovery material with
the other plaintiffs or the other defendants, and the
ongoing pretrial proceedings in MDL-338 would be substantially,
disrupted, opponents maintain.
We find these arguments unpersuasive. The national
conspiracy alleged in the MDL-338 actions necessarily C
encompasses the statewide conspiracy alleged in the Hawaii
action, and therefore the Hawaii action and the MDL-338
actions clearly involve many common questions of fact.
As a result, discovery and other pretrial proceedings
essential to development of the claims in the Hawaii
action will overlap discovery and other pretrial proceedings
that are integral to the MDL-338 actions. Inclusion
of the Hawaii action in the coordinated or consolidated
pretrial proceedings in the transferee district is thus
necessary in order to prevent duplicative discovery,
eliminate the possibility of inconsistent pretrial rulings
and streamline all other pretrial proceedings. ®

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: -5 =
C The fact that Budget System finds itself in an awkwardposition as one of the plaintiffs in the MDL-338 actions
and one of the defendants in the Hawaii action is not
a persuasive reason for the Panel to deny transfer where,
as is true here, the criteria for transfer under Section
1407 are otherwise satisfied. See In re Corrugated Container
Antitrust Litigation, 447 F. Supp. 468, 470-71 (J.P.M.L.
1978); In re Sugar Industry Antitrust Litigation, 437
F. Supp. 1204, 1206-08 (J.P.M.L. 1977). Budget System's
dilemma will persist whether these actions are pending
in a single district or in separate districts for pretrial
proceedings .2/ The concern of Budget System about the
role or roles it shall continue to play in the various
@® actions to which it is a party is best addressed to a
single judge -- the transferee judge for this litigation.
He has become thoroughly familiar with the issues involved
in this litigation, and therefore is clearly in the best
position fully to consider and monitor the effects of
the issues presented by Budget System regarding its
participation in the coordinated or consolidated pretrial
proceedings. See id. Any unique discovery needs of Budget
System and any antagonistic interests among the parties
may be accommodated by the transferee judge in designing
the pretrial program. See In re Corrugated Container
Antitrust Litigation, supra, 447 F. Supp. at 471.
® 77 If Budget System feels in an equivocal position,Budget System could consider hiring independent counsel
to represent Budget System in its different capacities
in this litigation.

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. r-
IT IS THEREFORE ORDERED that, pursuant to 28 U.S.C. C
§1407, the action entitled Pacific Auto Rental Corp.,
etc. v. The Hertz Corp., et al., D. Hawaii, C.A. No.
C78-0197, be, and the same hereby is, transferred to
the Northern District of California and, with the consent
of that court, assigned to the Honorable Charles B. Renfrew
for coordinated or consolidated pretrial proceedings
with the actions pending there.
ROY W. HARPER, JUDGE OF THE PANEL, dissents from this
opinion.
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®