1:78-F-00342•IN RE: Uranium Industry Antitrust Litigation
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BEFORE THE JUDICIAL, PANEL ON MULTIDISTRICT LITIGATION I57¢ LL
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IN RE URANIUM INDUSTRY ANTITRUST LITIGATION sLIR grTt A A7ee b rs
ORDER CHANGING CAPTION OF LITIGATION ¥
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IT IS ORDERED that all document filed in this litigation | i: ! aN
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IN RE URANIUM INDUSTRY ANTITRUST LITIGATION |
FOR THE~PANEL: SR
Patricia D.' Howard ce
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: Lr-— Case MDL No. 342 Document 2 Filed 05/05/15 Page 2 of 21 | moni TANEL T aTAT | > msl oEn oo 3EFORE THE JUDICIAL PANEL ATi iiiii | C ON CLERA CF wns Tries MULTIDISTRICT LITIGATION IN RE URANIUM INDUSTRY ) DOCKET NO. 342 ANTITRUST LITIGATION ) EDWARD WEINFELD, JUDGE OF THE PANEL, WITH WHOM : a ROY W. HARPER, JUDGE OF THE PANEL, JOINS (concurring ST in part and dissenting in part): - I concur in the decision of my brethren that the three TVA Hz | Tyr actions should be centralized in a single district pursuant to : oo 28 U.S.C. §1407 for coordinated or consolidated pretrial pro- Cn ceedings. I dissent, however, from that part of the opinion oo which includes the Illinois action in coordinated or consoli- ) oo dated pretrial proceedings with the three TVA actions. I would oo oh allow the three TVA actions to proceed in coordinated or : Cn consolidated pretrial proceedings separate from the Illinois action in a district other than the Northern District of Illinois. oo Co The interests of Westinghouse and TVA are antagonistic in - eh MDL-235 (uranium contract actions) and in MDL-342 (uranium CL conspiracy actions). In the uranium contract actions, ome of which has been brought by TVA, several utility companies allege B oo that Westinghouse breached its contractual obligations for the oo - present and/or future delivery of uranium to fuel nuclear power Co
Case MDL No. 342 Dgcument 2 Filed 05/05/15 Page 3 of 21 CT | | plants. Westinghouse has pled as its defense in these actions a that full performance of its contractual obligations for the RR supply of uranium became "commercially impracticable 'by reason oo of unforeseen developments and that Westinghouse was according- ly excused from such performance by reason of Section 2-615 of the Uniform Commercial Code. One of the principal unforeseen . developments that Westinghouse has raised during pretrial and sin the ongoing trial of those actions has been the alleged illegal conspiracy among foreign and domestic uranium producers to manipulate the price and availability of uranium, which is also | the basis of the Illinois action now before the Panel. cu Westinghouse asserts that proof of this conspiracy might Ra establish its defense in the uranium contract actions and also : : - entitle Westinghouse to relief in the Illinois uranium con- spiracy action. To expect Westinghouse and TVA to cooperate Lo effectively in attempting to prove a conspiracy that Westing- oo house is asserting as a defense to the uranium contract claims _ instituted by TVA is unrealistic. The views cf Westinghouse . and TVA concerning the focus and effects of this alleged conspiracy are clearly in substantial conflict. EE The counterclaims which have been filed in the Illineis Co action add a further dimension of complexity to the already . labyrinthian proceedings in that action. The numerous issues a
tT Case MDL No. 342 Document 2 Filed 05/05/15 Page 4 of 21 0. by those counterclaims do not involve any interests of TVA. They will entangle the litigants in a variety of disputes concerning the propriety of Westinghouse's marketing practices with respect to nuclear reactors and fuel supplies for nuclear reactors. For example, Gulf Oil Corporation (Gulf), one of the counterclaimants, charges that Westinghouse attempted to eliminate from the market a competing nuclear reactor designed and manufactured by Gulf. Specifically, Gulf alleges that Westinghouse (1) refused to supply to Gulf at reasonable prices electric generators to be used in Gulf's nuclear reactor system, (2) unfairly disparaged the 0... of the nuclear reactor system marketed by Gulf, (3) submitted unreasonably low bids for nuclear reactor systems while at the same time deliberately concealing substantial financial losses on nuclear business, and (4) sold at commercially unmatchable prices supplies of uranium which Westinghouse did not have in its possession as part of a total package in which Westinghouse's nuclear reactor systems were also sold. Furthermore, pretrial proceedings in the Illinois action have been delayed substantially during the resolution of the motions to disqualify Westinghouse's original counsel ® in that action. Westinghouse's substitute counsel stated
Case MDL No. 342 Dodurfient 2 Filed 05/05/15 Page 5 of 21 oe during oral argument before the Panel that Westinghouse will press for retention of its initial counsel because @® that counsel is extremely knowledgeable about Westinghouse's position in this litigation and Westinghouse will save time and money by not having to reeducate new counsel. Therefore, further delay of pretrial progress in the Illinois action is likely. In light of these circumstances, I do not believe that coordinated or consolidated pretrial proceedings between the Illinois uranium conspiracy action and the three TVA uranium conspiracy actions would serve the convenience of the parties and witnesses or promote the just and efficient oconduct of the litigation. Moreover, TVA is an arm of the federal government that serves the public interest and it should not be caught in the crossfire of the conflicting positions of the private litigants. TVA is simply attempting to recover damages for injuries it allegedly suffered in connection with the uranium supply contracts specifically enumerated in the TVA complaints and as a result of defendants’ alleged breach of certain duties owed to TVA under the Tennessee Valley Authority Act of 1933. These interests should not be submerged by the extensive claims and counter- claims that are inherent in the various Westinghouse contro- o veries with other litigants. I am thus of the view that
© oe Case MDL No. 342 Docufent 3 Filed 05/05/15 Page 6 of 21 C the TVA actions will be able to proceed toward trial more expeditiously if they are allowed to proceed separately from the Illinois action in a district other than the Northern District of Illinois.
© Case MDLNo.342 Document2 Filed 05/05/ZB0ek rof2l B 3h | MOTE oo BN BEFORE THE JUDICIAL PANEL TnI Ney Vo a MULTIDISTRICT LITIGATION FEZ27 107s P24 CoIN RE URANIUM INDUSTRY ANTITRUST ) Clete Hh |LITIGATION ) TET snr Homestake Mining Corp. v. Enerdyne ; Cotp., D. New Mexico, — to ) DOCKET NO. 342 |-A. No. 77-609 P ) - OPINION AND ORDER BEE _— ¥ BEFORE MURRAY I. GURFEIN, CHAIRMAN, AND EDWIN A. ROBSON, aSTANLEY A. WEIGEL, ANDREW A. CAFFREY, ROY W. HARPER, AND CHARLES R. WEINER, JUDGES OF THE PANEL. PER CURIAM Co I. BACKGROUND BE A. The Actions In The Transferee District } iOn July 31, 1978, the Panel, pursuant to 28 U.s.cC. ’ oo §1407, transferred three actions (the TVA actions) to the : oo Northern District of Illinois and, with the consent of that So court, assigned them to the Honorable Prentice H. Marshall for coordinated or consolidated pretrial proceedings with N a fourth action (Rio Algom) already pending there. In re B Uranium Industrv Antitrust Litigation, 458 F. Supp. 1223 : | k : LE(J.P.M.L. 1978). These four actions involve an alleged RE conspiracy to increase the price of uranium and to divide oo portions of the world uranium market. The complaints in the TVA actions contain virtually : co identical allegations, but the defendants are different. E a Ten foreign and three domestic companies allegedly engaged in | various aspects of the uranium business are named as defendants.
Case MDL No. 342Dpcument 2 Filed 05/05/15 Page 8 of 21 - : oo : The named defendants in each action are listed as co-conspirators | . Ji) in the other actions. In each complaint in the TVA actions, ooA TVA alleges, inter alia, that beginning in 1972, the defendants - and their co-conspirators, in violation of Sections 1 and/or 8 of the Sherman Act, conspired to rig bids, to fix the price, | terms and conditions for the sale of uranium, and to allocate . uranium sales in foreign and domestic markets. RE Rio Algom was filed by Westinghouse Electric Corporation a (Westinghouse) against twelve foreign and seventeen domestic companies (including Homestake Mining Company) alleged to | be producers, sellers, or agents for sellers of uranium.l/ The complaint in this action alleges that, beginning in oo 1972, the defendants formed an international cartel that . - fixed and increased the price of uranium to purchasers within a the United States; allocated the sale of uranium; boycotted i tertain uranium purchasers; and otherwise eliminated competition : oo among the defendants. Westinghouse claims that these activities | Co violated Sections 1 and/or 8 of the Sherman Act. . I7 Thedistrict court in the Northern District of Illinois found some of the foreign defendants in default for failing - to file answers. to Westinghouse's complaint. Final default CLjudgments as to liability recently were entered against these defendants. CT
. . Case MDL No. 342 Document2 Filed 05/05/15 Page 9 of 21 - 3 = ® In the Panel's earlier opinion in this litigation, the Panel found that these four actions share numerous complex factual questions concerning, inter alia, whether there was a domestic and/or international conspiracy in the uranium industry; and if there was, who participated in the conspiracy; what the purposes of the conspiracy were; how the partici- pants attempted to effectuate those purposes; and what the actual effects of the conspiracy were. «+. [Thus] [t]he crux of these actions is the allegation of a domestic and/or foreign conspiracy in the uranium industry. Centralization of the Illinois and TVA actions is necessary to prevent duplication in the extensive and difficult discovery expected on this key issue. Id. at 1229-30. On September 26, 1978, Judge Marshall entered an order C coordinating for pretrial purposes the TVA actions and Rio Algom. Earlier, Judge Marshall had approved a discovery schedule | which basically provides that depositions on the merits in this coordinated litigation were to commence in January 1979. This schedule also establishes a trial date in September 1980. B. Homestake Mining Company's Earlier Action The Panel has previously considered the question of whether to include in In re Westinghouse Electric Corporation Uranium Contracts Litigation (MDL-235) an action brought by Homestake Mining Co., which is also the plaintiff in the action now before the Panel, against Westinghouse (this C action will be referred to as Homestake I). In the Panel'soriginal opinion in MDL-235, the Panel, pursuant to Section 1407, had centralized several acticns involving uranium
Case MDL No. 342 Document2 Filed 05/05/15 Page 10 of 21 . . - 4 - supply contracts between Westinghouse and a number of utility companies, including TVA, in the Eastern District of Virginia for coordinated or consolidated pretrial proceedings. In re Westinghouse Electric Corporation Uranium Contracts Liti- gation, 405 F. Supp. 316 (J.P.M.L. 1975). Homestake I involved the rights and obligations of Homestake and Westinghouse under a 1974 contract by which Homestake agreed to sell 700,000 pounds of uranium to Westinghouse. This contract stated that the source of this uranium would be a contract between Homestake and a French corporation, Uranex, and that Homestake would have no liability to Westinghouse should Uranex fail to make delivery. After Uranex allegedly .informed Homestake that Uranex was unable or unwilling ta deliver ( the uranium under their contract, Homestake filed Homestake I against Westinghouse, seeking declaratory and injunctive relief. Basically, Homestake sought a declaration that, because of Uranex's failure or refusal to perform its contract with Homestake, Homestake's obligation to deliver uranium to Westinghouse was terminated. Westinghouse counterclaimed against Homestake in this action for breach of contract and unjust enrichment. In addition, Westinghouse raised the defense of "unclean hands' against Homestake ,2/ alleging that Homestake participated in the antitrust conspiracy alleged in Westinghouse's complaint in Rio Algom. 7] Homestake has advised the Panel that Westinghouse has C withdrawn this defense in Homestake I.
- 5 - . . Case MDL No. 342 Document2 Filed 05/05/15 Page 11 of 21 3/ ® The Panel declined to include Homestake I in MDL-235, holding, inter alia, that: although Westinghouse's 'unclean hands' defense in Homestake [I] may share questions of fact with Westinghouse's defense in the actions in MDI-235 concerning the allegedly international conspiracy, the issues in Homestake [I] are basically unique to that action because they involve the contractual relationships between Westinghouse and Homestake as well as Homestake and Uranex. In re Westinghouse Electric Corporation Uranium Contracts 4/ Litigation, 436 F. Supp. 990, 995 (J.P.M.L. 1977). C. The Action Now Before the Panel The action presently before the Panel (Homestake II) arises out of a 1970 agreement between Homestake and Enerdyne Corporation (Enerdyne) whereby Homestake became the assignee of most of Enerdyne's interests under, and the lessee of, certain unpatented mining claims concerning uranium properties located in New Mexico. In September 1977, Homestake filed Homestake II in the District of New Mexico against Enerdyne, seeking a declaration that Homestake's obligations under that agreement had been fully satisfied. Shortly5/ thereafter, Enerdyne filed its answer and counterclaims. The counterclaims assert certain breaches of implied covenants, 3/ The Panel also found that inclusion of Rio Algom in MDL~-235 was inappropriate, In re Westinghouse Electric Corpcration Uranium Contracts Liflcation, 436 F. Supp. 990, 994-96 (J.P.M.L. 1977). 4/ See further discussion of why Homestake I was not included in MDL-235 at pages 13-14, supra. C 5/ Although Enerdyne's pleading is captioned as a "counter- claim," Enerdyne itself acknowledges in its papers before the Panel that its "counterclaim" actually raises numerous counter- claims.
| Case MDL No. 342 Document2 Filed 05/05/15 Page 12 of 21 . .- 6 - conditions and duties under the 1970 agreement; NR by Homestake; lack of good faith, fraud and deceit; constructive fraud; or breach of fiduciary duty. One of Enerdyne's counterclaims alsc alleges that Homestake conspired with "other uranium producers," in violation of the federal antitrust laws and the antitrust laws of New Mexico, to restrain trade and commerce in uranium. Enerdyne claims that this alleged conspiracy lead Homestake to breach its contractual commitments tO Enerdyne.8/ On September 8, 1973, the district court ordered that all dis- covery in this action must be completed on or before March 1, 1979. Homestake and Enerdyne have both represented to the Panel, however, that only minimal discovery concerning the antitrust ~ counterclaim has yet occurred in Homestake II. No trial date has yet been established in this action. 7 Fherdyne 's antitrust counterclaim is stated in §§15, 30 and 21 of its "first amended counterclaim," as follows: 15. At times acting independently and at times acting in concert, collusion, and conspiracy with other uranium producers, Homestake had deliberately refused to proceed diligently to develop and mine the subject properties, in an effort to withhold uranium from the market and drive up its prices. 20. Homestake has used the Homestake agreement to withhold and delay production of uranium, in violation of §§49-1-2, and 49-1-3, N.M.S.A. (1953 Comp.) [The New Mexico Antitrust Laws]. 21. Homestake has used the Homestake agreement to withhold and delay production of uranium, in violation of 15 U.S.C. §1, 15 U.S.C. §2, and 15 U.S.C. §3.
. . Case MDL No. 342 Document 2 Filed 05/05/15 Page 13 of 21 ® II. PROCEEDINGS BEFORE THE PANEL Homestake has moved the Panel, pursuant to 28 U.S.C. §1407, to transfer the antitrust counterclaim in Homestake II to the Northern District of Illinois for coordinated or consolidated pretrial proceedings with the four actions already pending there. Enerdyne and Westinghouse oppose this motion. No other parties have responded to Homestake's motion. III. DECISION OF THE PANEL We find that the antitrust counterclaim in Homestake II shares questions of fact with the four actions in the trans- feree district and that inclusion of that counterclaim in ¢ the Section 1407 proceedings pending there will serve theconvenience of the parties and witnesses and promote the just and efficient conduct of the litigation. Enerdyne contends that the legal and factual issues in Homestake II all arise from the contractual relationship between Homestake and Enerdyne. Each of these issues relates to 1) the negotiations between Enerdyne and Homestake which resulted in the execution of the 1970 agreement between those parties; 2) the nature of the duties imposed upon Homestake by that agreement; and 3) the reasons for the alleged breach by Homestake of its duties under the agreement, Enerdyne asserts. Enerdyne contends that its antitrust counterclaim falls into the last of these categories, because o the activities alleged in that counterclaim tend to show
Case MDL No. 342 Document 2 Filed 05/05/15 Page 14 of 21 . . why Homestake failed to produce uranium from the mining C properties covered by the 1970 agreement. While the antitrust counterclaim may share some questions of fact with the actions in the transferee district, Enerdyne argues, that counterclaim is merely one element in a complex contractual dispute whose resolution will turn primarily upon New Mexico state law dealing with mining obligations and the interpretation of contracts. Enerdyne maintains that its antitrust counterclaim can be most easily understood and most efficiently litigated in the context of that particular contractual dispute. Westinghouse agrees with Enerdyne that Homestake II basically involves a contractual dispute between Homestake and Enerdyne. Westinghouse further argues that its interpre- 9tation of the allegations of the antitrust counterclaim and discovery to date in Homestake II "indicate[s] that any conspiracy alleged therein is substantially and factually : distinct from that alleged in either [Rio Algom] or the TVA actions....'" Westinghouse points out that the properties subject to the 1970 agreement between Homestake and Enerdyne are located solely in New Mexico, and that the conspiracy involved in the actions in the transferee district allegedly began in 1972, two years after the agreement between Homestake and Enerdyne was entered into. Westinghouse thus asserts that discovery in the transferee district concerning an alleged antitrust conspiracy will involve a plethora of factual questions not raised by Enerdyne's antitrust counter- Cclaim, and that discovery on these issues in the transferee
. . Case MDL No. 342 Documeng 2_ Filed 05/05/15 Page 15 of 21 C district will dwarf any possible discovery in Homestake II. Westinghouse also objects to the inclusion of Enerdyne's antitrust counterclaim in the coordinated or consolidated pretrial proceedings pending in Chicago on the grounds that such a transfer would complicate and delay both Homestake II and those coordinated pretrial proceedings. : Westinghouse points out that the antitrust counterclaim, unlike Rio Algom or the TVA actions, involves claims under Section 2 of the Sherman Act, and contends that therefore discovery proceedings concerning that counterclaim will involve numerous unique factual inquiries. In addition, | Westinghouse maintains that bifurcating Homestake II by trans- ( ferring the antitrust counterclaim to Chicago and leaving the— rest of that action in New Mexico is an inefficient manner by which to process that action. To the extent that discovery in Homestake II and the coordinated proceedings may overlap, Westinghouse suggests that, inter alia, voluntary cooperation among the parties would be sufficient to accomplish the goals of Section 1407 transfer. Finally, both Westinghouse and Enerdyne claim that the Panel's determination that Homestake I should not be included in MDL=-235, In re Westinchouse Electric Corroration Uranium Contract Litigation, supra, 436 F. Supp. at 495, serves as a precedent for denying Homestake's present motion. ®
Case MDL No. 342 Document2 Filed 05/05/15 Page 16 of 21 . : - 10 - The issues in the antitrust counterclaim in Homestake II are C "basically unique" to the contractual relationship between Homestake and Enerdyne, Enerdyne and Westinghouse argue, and that counterclaim should not be included in the coordinated pretrial proceedings in the transferee district merelv because "of a surface similarity presented by one element of a compli- cated local contract dispute.” We find these arguments unconvincing. While the bare alle- gations of Enerdyne's antitrust counterclaim are not as detailed as the allegations of the complaints in Rio Algom or the TVA actions, the record before us amply demonstrates that the antitrust counterclaim in Homestake II and the actions already in the trans- feree district share numerous complex factual questions TREE)whether there was a conspiracy in the uranium industry; and if a there was, whether Homestake participated in the conspiracy; what the purposes of the conspiracy were; and what the actual effects of the conspiracy were. For example, at a deposition conducted in Homestake II, counsel for Enerdyne explained the relevance of a particular question as follcws: The allegations in the Chicago action allege certain violations of the United States Antitrust Laws and claim that Homestake did conspire with other uranium companies to violate those laws. We have similiar allegations against Homestake in this action. And in responding to an interrogatory propounded by Homestake, Enerdyne stated: Enerdyne believes the decision by Homestake to restrict the production of uranium from the subject properties was made as part of a conspiracy with Uranex, a foreign C cartel company [which is named as a defendant in one of the TVA actions and as a co-conspirator in the remaining two TVA actions and Rio Algom] and perhaps other companies. Also see Transcript at 3-3.
. Case MDL No. 342 Document2 Filed 05/05/15 Page 17 of 21 In addition, it is clear that Enexdyne's allegations in the antitrust counterclaim that "Homestake had deliberately refused to proceed diligently to develop and mine the subject properties, in an effort to withhold uranium from the market and drive up its prices" directly parallels factual issues already raised in the transferee district. In a recent opinion, the Court of Appeals for the Seventh Circuit reversed a decision of the . transferee judge in which the judge had refused to disqualify a law firm that represented one of the defendants in the transferee district. The Seventh Circuit held in part as follows: The lower court erred...in identifying the issues TN raised by an allegation of price fixing.... The lowercourt found that the 'heart of the [Westinghouse] complaint is directed at alleged price-fixing arrangements.’ 448 F. Supp. at 1312. However, an agreement to restrict the production of uranium unquestionably is a price : fixing arrangement. 'Price fixing' is a characterization which extends to all conspiracies designed to manipulate the price of goods. [Citations omitted]. In fact, all serious attempts to establish a supracompetitive price must necessarily include an agreement to restrict output. Otherwise the monopoly price could never be maintained. Thus, the lower court's view that conspiracy to fix prices and conspiracy to restrict output are distinct offenses is in error. The lower court's reliance on the fact that the complaint contains only a 'few scanty references to the alleged conspiratorial control of uranium production’ is misplaced.5/ 448 F. Supp. at 1312. Westinghouse's general allegation of price fixing is sufficient to make evidence tending to establish a conspiracy to restrict uranium production relevant to the litigation. - 2/ The district court cites only a portion of the complaint's references to the constraint issue, e.g2., paragraphs 36, 39(b) and 46. The complaint... also ® raises the issue twice in the introduction as well as paragraphs 41(d), 43 and 55(a). Further, Westinghouse continued to raise supply curtailment issues in the course of the litigation in its answer to interrogatories.
Case MDL No. 342 Document 2 Filed 05/05/15 Page 18 of 21 . . oo ® Westinghouse Electric Corporation v. Gulf 0il Corporation, 558 F.2d 221, 226 (7th Cir. 1978). We acknowledge that Homestake II concerns in great part a contractual dispute between Homestake and Enerdyne,. Nevertheless, we agree with Homestake, the movant before us, that Enerdyne's antitrust counterclaim should be severed from the remaining claims and counterclaims in Homestake II and transferred to the Northern District of Illinois. In fact, even Enerdyne states in its papers before the Panel that "[i]f transfer is deemed necessary... because of common antitrust issues, the antitrust claims can and should be ro severed from the other claims stated by the counterclaim." = Thus, we are of the view that transfer of only the antitrust counterclaim is necessary to prevent duplicative discovery, eliminate any possibility of conflicting pretrial rulings and conserve time and effort for the parties, the witnesses and the judiciary. Discovery on any issues unique to any action, group of actions or party may be scheduled by the transferee judge to proceed in a separate discovery schedule concurrently with discovery on common issues. See In re Corrugated Container Antitrust Litigation, 447 F. Supp. 75% 477 (J. P.M.L. 19787. In reUranium Industy Antitrust Litigation, supra, 458 F. Supp. at 1229.
’ | ) Case MDL No. 342 Doturhenf2 Filed 05/05/15 Page 19 of 21 C Inclusion at this time of the antitrust counterclaim in the Section 1407 proceedings now being conducted in the transferee district is particularly appropriate because Judge Marshall has already had an opportunity to become uniquely acquainted with all facets of the discovery and other pretrial proceedings concerning the alleged uranium conspiracy. We are confident that Judge Marshall, with the assistance and cooperation of the parties and counsel, will be able smoothly to integrate Enerdyne's antitrust counterclaim into the pretrial proceedings in the transferee district. See id. at 1231-32; Manual for Complex Litigation, Parts I & II, §§3.11 (rev. ed. 1977). Moreover, this result is manifestly Qe ‘preferable to Westinghouse's suggested alternative of volun-tary cooperation among the parties.l/ Should the antitrust counterclaim become ready for trial or otherwise ready for remand because the. transferee judge finds that the Section 1407 proceedings pertaining to the counterclaim are completed, the transferee judge may suggest to the Panel that the Panel | remand the counterclaim to its transferor court. 28 U.S.C. §1407 (a); Rule 11(c)(ii), R.P.J.P.M.L., 78 F.R.D. 561, 569 (1978). See, e.g., In re A. H. Robins Co., Inc. ''Dalkon Shield" IUD Products Liability Litigation, 453 F. Supp. 108 (J.P.M.L. 1978). 77 We note that neither Homestake nor Enerdyne has urged That voluntary cooperation is a suitable alternative to o Section 1407 transfer.
Case MDL No. 342 Document 2) fled 05/05/15 Page 20 of 21 ) : | ® We discern no inconsistency between our determination concerning the antitrust counterclaim in Homestake II and our earlier decision not to include Homestake I in MDL-235. In our MDL-235 decision, we declined to transfer either Rio Algom or Homestake I to the Eastern District of Virginia, even though both of those actions raised issues concerning an alleged conspiracy in the uranium industry. In re Westing- house Electric Corporation Uranium Contract Litigation, supra, 436 F. Supp. at 992-93, 995. In denying transfer of Rio Algom, for example, we recognized that ''the allegations of a price-fixing and market manipulation conspiracy in Rio Algom and the actions in MDL-235 involve common questions of fact," but we held that "on the basis of the record before y us we are not convinced that these conspiracy issues predominate over the contractual issues that form the basis of MDL-235." Id. at 995. The primary reason for our decision not to include either Rio Algom or Homestake I in MDL-235, however, was that, unlike those two actions, trial was imminent in the actions in MDL-235,8/ and we therefore found that "the purposes of Section 1407 [could] best be achieved by allowing the actions in MDL-235 to be left alone. [Citation omitted.]" 8/7 OnOctober 27, 1978, the transferee judge in MDL-235 found, after a trial limited to issues of liability, that Westinghouse had wrongfully breached its contracts with some of the utility plaintiffs. @
, . Case MDL No. 342 Docugent2 Filed 05/05/15 Page 21 of 21 ® Id. at 996. That situation is far removed from the one now before us, where trial for any action that will be tried in the Northern District of Illinois is not presently scheduled to commence until September 1980. Finally, as we have already stated, in the present litigation, unlike MDL-235, the common core of factual issues springs from the alleged existence of a conspiracy in the uranium industry, and we are transferring to the Northern District of Illinois only that portion of Homestake II which raises these common questions of fact. IT IS THEREFORE ORDERED that, pursuant to 28 U.S.C. §1407, the action captioned Homestake Mining Corp. v. Enerdyne Corp., D. New Mexico, C.A. No. 77-609 P, be, and the same Qe hereby is, transferred to the Northern District of Illinois | and, with ‘the consent of that court, assigned to the Honorable Prentice H. Marshall for coordinated or consolidated pretrial proceedings with the actions already pending there. IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. §1407(a), all claims and counterclaims in this action except the antitrust counterclaim be, and the same hereby are, separated and remanded to the District of New Mexico for further proceedings. ®
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