IN RE: Long Distance Telecommunications Litigation

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+ Case MDL No. 598 Document 2 Filed 06/01/15 Page 1 of 3
| BHTIAL PARED ON
KGLTICIBTZICT LITISATIEN
DOCKET NO. 598 Flach
C BEFORE THE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION LIS 1S 1988
IN RE LONG DISTANCE CATIONS LITIGATION CLERR OF THE FATLL
. TRANSFER ORDER*
This litigation presently consists of ten actions pending in seven federal districts:
three actions in the Northern District of Illinois, two actions in the District of
Massachusetts and one action each in the Northern District of California, the Eastern
District of New York, the, District of Minnesota, the District of New Jersey and the MiddleDistrict of Pennsylvania.~’ Before the Panel is a motion, pursuant to 28 U.S.C. §1407, by
plaintiffs in seven of the teyactions to centralize the actions in this litigation iptheNorthern District of Illinois=’ for coordinated or consolidated pretrial proceedings.2’ °
Plaintiffs in two actions and one telephone company defendant oppose centralization of all
actions; some of these parties favor formation by the Panel of separate multidistrict pro-
ceedings in different districts for actions against different defendants. Four telephone
campany defendants support transfer to the Eastern District of Michigan. Other potential
transferee forums suggested by the parties include the Eastern District of New York, the
District of New Jersey and the Middle District of Pennsylvania.
On the basis of the papers filed and the hearing held, the Panel finds that these ten
actions involve common questions of fact and that centralization of nine of these ten
actions under Section 1407 in the Eastern District of Michigan will best serve the conven
ience of the parties and witnesses and promote the just and efficient conduct of the
Cj Judge Milton Pollack recused himself and took no part in the decision of this matter.
: 1/ The Panel staff has been advised of the pendency in federal district courts of at
least four additional related actions. These actions, and any other related actions that
came to the Panel's attention, will be treated as potential tag-along actions. See Rules
9 and 10, R.P.J.P.M.L., 89 F.R.D. 273, 278-80 (1981).
2/ The Section 1407 movants originally sought transfer to either the Northern District of
Tllinois or the Eastern District of Michigan, but they subsequently deleted their request
for transfer to the Eastern District of Michigan.
3/ The Section 1407 motion included four additional actions -- Control Electronics, Inc.
et al. v. Southern Pacific Communications Co., et al., E.D. Michigan, C.A. No. 83-1010;
Retail Recruiters of New York, Inc. v. MCI Telecormunications Corp., S.D. New York, C.A.
No. 83-8043; Harvey M. Schuster, et al. v. GIE Sprint Communications Corp., N.D. Califor-
nia, C.A. No. C-83-5374 TEH; and Roger lee, et al. v. Western Union Telegraph Co., N.D.
California, C.A. No. C-84~1472 TEH =-- that are no longer pending in federal district
courts. Judge Anna Diggs Taylor dismissed Control Electronics on May 22, 1984, and Judge
Constance Baker Motley dismissed Retail Recruiters on June 29, 1984, Appeals of the dis-
missals in these two actions are pending in the United States Courts of Appeals for the
Sixth Circuit and the Second Circuit, respectively. Judge Thelton E. Henderson dismissed
Schuster and Lee on August 3, 1984.
Also, one of the ten actions now before the Panel, Lily M. Feitler v. GIE Sprint
rmunications Corporation, M.D. Pennsylvania, C.A. No. CV-84-0759, was not included in
@: Section 1407 motion, but this action is included in the matter before us because all	arties to this action have stated in writing their respective positions on the motion
before us and have presented oral argument.

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Case MDL No. 598 Document 2,_Filed 06/01/15 Page 2 of 3 )
‘ litigation. Each of the actions before the Panel challenges the billing and advertising
practices of one of five long distance telephone company defendants and 1s brought as a
purported class action on behalf of customers of that telephone company. Those okeythat oppose centralization of all actions argue that actions against different defend
share few questions of fact because each defendant telephone company has its own unique
billing practices, advertising, rate structure and disclosure policy. While we recognize
that much discovery directed at different defendants will be cumulative rather than
duplicative, we are persuaded that all the actions in this docket present sufficient
cammon questions of fact, pertaining in particular to common practices in the long
distance telephone industry, to meet the threshold requirement for Section 1407 transfer.
Moreover, we note that 1) Section 1407 empowers the Panel to order transfer "for coordi-
nated or consolidated pretrial proceedings"; 2) the Panel has customarily left to the
discretion of the transferee judge the manner and extent of coordination or consolidation
of pretrial proceedings; and 3) the transferee judge has the discretion to schedule dis-
covery unique to any defendant to proceed concurrently with the discovery camon to all
defendants. We conclude that centralization under Section 1407 of the nine actions listed
on the attached Schedule A 1s necessary in order to eliminate duplicative discovery, avold
inconsistent pretrial rulings, and conserve the resources of the parties, thelr counsel,
and the judiciary.
None of the forums suggested by the parties as potential transferee districts could be
characterized as the nexus of this litigation, involving the practices of several long
distance telephone companies that do business nationwide. On balance, however, we are
persuaded that the Eastern District of Michigan is the appropriate transferee forum. Even
though no constituent action is presently pending in the Eastern District of Michigan,
Control Electronics was commenced in that district in March, 1983, more than seven months
before the commencement of any other action in this litigation. In addition, Control
Electronics is broader in scope than other actions in this litigation in that, unlike
those other actions, the complaint in Control Electronics names multiple telephone cor
defendants. We observe that Judge Taylor, the judge to wham we are assigning this |x gation, presided over pretrial proceedings in Control Electronics for nearly a year,
considered and decided defendants' dismissal motion, and has thus become familiar with a
broad range of issues and parties in this litigation. Opponents of transfer to the
Eastern District of Michigan point out that Judge Taylor dismissed the complaint in
Control Electronics principally on the basis of the primary jurisdiction of the Federal
Communications Comission (FCC). These parties further point out that primary juris-
diction is a legal issue that is germane to other actions before the Panel. Thus, these
parties argue, centralization before Judge Taylor will in effect constitute a consignment
of the entire litigation to the FCC. In response to this argument, we observe that the
primary jurisdiction issue in Control Electronics has not yet been definitively resolved,
in view of the pendency before the United States Court of Appeals for the Sixth Circuit of
plaintiffs' appeal from Judge Taylor's order dismissing the complaint.
IT IS THEREFORE ORDERED that, pursuant to 28 U.S.C. §1407, the actions listed on the
attached Schedule A be, and the same hereby are, transferred to the Eastern District of
Michigan and, with the consent of that court, assigned to the Honorable Anna Diggs Taylor
for coordinated or consolidated pretrial proceedings.
FOR THE PANEL:
Cn
Codrur @ Cpe,Chairman ®
/ In light of the pendency of an appeal pursuant to 28 U.S.C. §1292(b) in the tenth
action, Charles Kaplan v. ITT'-U.S. Transmission Systems, Inc., E.D. New York, C.A. No.
83-Civ-4Bh3, our decision regarding transfer of that action under Section 1407 is deferred
until the apveal is resolved.

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: SCHEDULE A
C MDL-598 -- In re Long Distance Telecommunications Litigation
Northern District of California :
Roger Lee, et al. v. MCI Telecommunications Corp., C.A. No. C-84-1471JPV
District of Massachusetts
Euromarket Designs, Inc., d/b/a Crate and Barrell v. MCI Telecommunications Corp., C.A.
Buranarket, Designs, Inc., d/b/a Crate and Barrell v. Allnet Communications Services,Inc., C.A. No. 04-851 .
District of Minnesota
McIntosh Embossing, Inc. v. MCI Telecamunications Corp., C.A. No. 4-84-Civ-271
District of New Jersey
Mark Hochman, et al. v. GIE Corp., et al., C.A. No. 83-4555
Northern District of Illinois
Certified Collateral Corp. v. MCI Telecormunications Corp., C.A. No. 84-C-0388 Earl E.
C Jlive v. Allnet Communication Services, Inc., C.A. No. 84-C-1112. David H. Locks v. U.S. Telephone of Midwest, Inc., C.A. No. 84-C-1465
Middle District of Pennsylvania
Lily M. Feitler v. GTE Sprint Commncations Corporation, C.A. No. CV-84-0759
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