IN RE: Women's Clothing Antitrust Litigation

Case MDL No. 350 Document 2 Filed 05/05/15 Page 1 of 9
JUDICIAL PANEL ON ET SE
MULTIDISTRICT LITIGATION EE a
FILED EEE
BEFORE THE JUDICIAL PANEL SEP -8 1978 poe
MULTIDISTRICT LITIGATION PATRICIA D. HOWARD 22 voCLERK OF THE PANEL vo
IN RE WOMEN'S CLOTHING ANTITRUST ) DOCKET NO. 350 :
LITIGATION )
OPINION AND ORDER AE SA
BEFORE JOHN MINOR WISDOM, CHAIRMAN, AND EDWARD WEINFELD, BERT co
EDWIN A. ROBSON, STANLEY A. WEIGEL, ANDREW A. CAFFREY*, Co
AND ROY W. HARPER, JUDGES OF THE PANEL -
PER CURIAM oo :
yd Ce
"In October 1974, a federal grand jury sitting in the oo
Southern District of New York handed down an indictment oo
against Saks & Company, Genesco, Inc. (d/b/a Bonwit Teller), :
Bergdorf Goodman, Inc. and two individuals. The indictment
charged that defendants, in violation of Section 1 of the
Sherman Act, conspired to fix the retail price of women's
outer clothing in the New York City metropolitan area. The
Government also filed a companion civil action in the Southern
District of New York against the three corporate defendants. The
criminal defendants all pleaded nolo contendere and paid fines
imposed by the district court. A consent decree was entered against “- : or
the defendants in the Government's civil action in June 1977. Co
* Judge Caffrey took no part in the decision of this matter.

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Socn after the indictment was handed down, seven privata 20 :
actions involving allegations similar to those in the indictment nr
| were filed in the Southern District of New York. The district Co |CL court in these actions certified a class consisting of certain oo
New York City area customers of the corporate defendants
indicted by the Government. See Dennis v. Saks & Co., et al., EE ~ Co
1975-2 CCH Trade Cases 60,396 (S.D.N.Y. 1975). A settlement TE oo
in these actions has been approved by the court. oe
Presently before the Panel are seven other private actions oo
pending in three federal districts: three in the Northern :
/ To
District of Illinois, three in the Eastern District of oo
Pennsylvania, and one in the Southern District of New York. v4 SI
The three corporations indicted by the Government are SE |
named as defendants in each of the seven actions before the Panel.
No other defendants are involved in these actions. The com- oo
plaints in the actions under consideration by the Panel, ;
except for the market areas involved therein, track the Government's
allegations, and basically allege that, beginning at least
as early as the mid or late 1960's, the defendants and various |
unnamed co-conspirators have conspired, in violation of
1/7 An eighthapparently related action has been filed by a N
private party in the District of Massachusetts. While the
plaintiff in this action has informed the Panel by letter that
she opposes transfer of her action under 28 U.S.C. §1407, this Go :
action came to the attention of the Panel too late to be in- :
cluded in the Panel's hearing on this matter. Because of our : :
disposition of the motion now before us, no further action will
be taken at this time concerning this Massachusetts action. LL

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® Section 1 of the Sherman Act, to fix the price of women's	2/
clothing. The complaints in the Illinois and Pennsylvania
actions and the complaint in the New York action allege that
defendants' conspiratorial conduct affected the price of
women's clothing purchased by defendants’ charge account
customers residing in, respectively, 1) the Chicago area, 2) the
Philadelphia area, and 3) the State of New York (excluding the
New York City area) or the District of Columbia.
Each of the seven actions was filed as a purported class
action. In the Pennsylvania actions, which have been con-
solidated for all purposes, the court has certified a class
C of all charge account customers of the defendants who havebilling addresses in Delaware or specified Pennsylvania and
New Jersey counties located in the Philadelphia area, and
who have purchased a specified amount of women's clothing
from defendants' stores located in the Philadelphia and New
York City areas. See Axelrod v, Saks & Co.,	77 F.R.D. 441
(E.D. Pa. 1978). In the New York action, the court has
certified a class of all charge account customers of the
defendants with billing addresses in the District of Columbia
or the State of New York (except members of the class certified
in Dennis, supra, 1975-2 CCH Trade Cases €60,396) who have
C 2/ The complaints define "women's clothing" as "ready towear items of women's outerwear, such as dresses, suits and
coats, excluding shoes, millinery and accessories."

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purchased a specified amount of women's apparel from
defendants' stores located in the New York City area. See ®
Kromer v. Saks & Co., et al., 1977-2 CCH Trade Cases 61,771
(S.D.N.Y. 1977). Plaintiffs in the Illinois actions seek to
represent charge account customers of the defendants residing
in the Chicago metropolitan area who have purchased a specified
amount of women's clothing from defendants' stores located in
that area. Two of the three Illinois actions have been
consolidated for all purposes. A motion by defendants to
consolidate the third, relatively recently filed Illinois action
with these two actions is presently pending.
Substantial discovery has already taken place in most
of the actions before the Panel. For example, counsel for ®
all parties in the Pennsylvania actions and in the New York
action have arranged, without the need for judicial involvement,
for the voluntary production by defendants of all documents
produced by defendants in Dennis, supra, and many of these
documents have also been provided to plaintiffs in the Illinois
actions. In addition, most parties in these actions have
already responded to interrogatories. Finally, numerous
discovery motions are sub judice in the Eastern District of
Pennsylvania.
®

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o These seven actions are before the Panel on the motion ofplaintiffs in two of the three Illinois actions for transfer,
pursuant to 28 U.S.C. §1407, of the seven actions to a single
district for coordinated or consolidated pretrial proceedings.
Movants have not suggested a transferee district. Plaintiffs
in the remaining five actions, as well as all three
defendants, oppose Section 1407 transfer of these
actions.
We conclude that transfer under Section 1407 would not
necessarily serve the convenience of the parties and witnesses
or promote the just and efficient conduct of this litigation.
C Accordingly, we deny the motion to transfer.While movants acknowledge that there may be some unique
factual issues involved in, respectively, the Philadelphia,
Chicago and New York actions because of the local markets and
different classes involved in those actions, movants argue
that common questions of fact clearly predominate in this
litigation. In each action, movants contend, plaintiffs will
seek discovery from a "common core" of the defendants’
headquarters' personnel concerning, inter alia, meetings
of a New York "trade association or meeting group" that was
apparently a co-conspirator; policy and pricing responsi-
C bilities and determinations; contacts with competitors;

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and communications with manufacturers and other third parties. C
In addition, movants assert, many other identical witnesses
may be involved in each action, and there will be duplicative
requests for access to grand jury materials located in New
York. Thus, movants argue, Section 1407 proceedings are
necessary in this litigation to avoid duplication of discovery,
prevent conflicting pretrial rulings, and conserve the efforts
of the parties and the judiciary.
While we agree that these actions involve significant
common questions of fact regarding alleged corporate policy
decisions made by defendants' top managerial personnel, and
that the presence of these issues commends Section 1407 trans-— 0
fer, on balance we are persuaded that this factor is outweighed
by the advanced stage of pretrial proceedings in these actions,
particularly the Pennsylvania and New York actions. For
example, classes have been certified in the Pennsylvania
and New York actions and plaintiffs in those actions
emphasize that they have reviewed thousands of documents
voluntarily produced by the defendants. Inclusion of the
actions now before us in coordinated or consolidated pretrial
proceedings would, we are convineed, disrupt the orderly
progress which is being made in the Pennsylwania and New
®

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-7-
C York actions and would result in no overriding benefits to the
litigation as a whole. See In re Photocopy Paper, 305 F. Supp.
60, 61-62 (J.P.M.L. 1969). Several other factors also help
tip the scales against transfer in the context of this
particular litigation: (1) because the three Pennsylvania
actions and two of the three Illinois actions have already
been consolidated for all purposes in their respective
districts, only a relatively small number of actions are
actually before the Panel; (2) the classes already certified
or sought in each respective district do not overlap; (3)
all parties except the moving plaintiffs in two Illinois
C actions oppose transfer; (4) at the Panel hearing on this
matter, defendants offered to stipulate that the depositions
of their top management witnesses may be used in each action;
and (5) most of the parties have otherwise already demonstrated
their willingness voluntarily to cooperate in the elimination
of duplicative discovery.
In addition, we note that notices of a particular
deposition could be filed in every action, thereby making the
deposition applicable in each action; the parties could seek
to agree upon a stipulation that any discovery relevant to
actions in more than one district may be used in those actions;
C and any party could seek orders from the three district courts
directing the parties to coordinate their pretrial efforts.

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See In re Commercial Lighting Products, Inc. Contract C
Litigation, 415 F. Supp. 392, 393 (FJ.P.M.L. 1976).
See also Manual for Complex Litigation, Parts I and II,
§§3.11 (rev. ed. 1977). Also, consultation and cooperation
among the three concerned district courts, if deemed
appropriate by those courts, coupled with the cooperation
of the parties, would minimize the possibility of
conflicting pretrial rulings. See In re Raymond lee
Organization Inc. Securities TLitigation, 446 F. Supp. 1266,
1268 (J.P.M.L. 1978).
17 IS THEREFORE ORDERED that the motion pursuant to
28 U.S.C. §1407 to transfer the actions listed on the C
following Schedule A be, and the same hereby is, DENIED,
without prejudice to the right of any party to seek transfer
under Section 1407 if a significant change of circumstances
occurs.
@®

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DOCKET NO. 350
C Schedule A
NORTHERN DISTRICT OF ILLINOIS Civil Action No.
Marietta Bratta, et al. v. Saks 74C~-3513
& Co., et al.
Ruth Rosin, et al. v. Saks & Co., 76C-3662
et al.
Roslyn L. Tabloff, et al. v. 77C-4309
Saks & Co., et al.
SOUTHERN DISTRICT OF NEW YORK
Sarel Kromer v., Saks & Co., et al. 77-Civ.2914
EASTERN DISTRICT OF PENNSYLVANIA
J. Axelrod, et al. v. Saks & Co., et al. 76C-3805
C Mitzi Adis, et al. v. Saks & Co., et al. 76-4011
Iois Squires v. Saks & Co., et al. 77-172