IN RE: Midwest Milk Monopolization

Case MDL No. 83 Document 2 Filed 04/30/15 Page 1 of 30
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DOCKET "NO. "83 Hi AL
BEFORE THE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION
IN RE MIDWEST MILK MONOPOLIZATION LITIGATION
ORDER
It appearing that all parties to the actions listed on
the attached Schedule A are opposed to the transfer of those
actions under 28 U.S.C. §1407 and the Panel having found, on
the basis of the papers submitted and the hearing held, that
transfer would not serve the purposes of 28 U.S.C. §1407,
IT IS ORDERED that transfer of the actions listed on
Schedule A be, and is, DENIED.
FOR THE PANEL:
Alfred P. Murrah
Chairman

Case MDL No. 83 Document 2 Filed 04/30/15 Page 2 of 30
® SCHEDULE A N DOCKET NO. 83
WESTERN DISTRICT OF MISSOURI	matty	Peos habs Ur MiooOURL
Robert B. Alexander, et al. v. The Civil Action
National Farmers Organization, et al. No. 19191-1
SOUTHERN DISTRICT OF TEXAS	Soon DdoodUd UR LTRAAS
Marketing Assistance Plan, Inc., et al. v. Civil Action
Associated Milk Producers, Inc. No. 71-H-841
Sun Tex Dairy, et al. v. Associated Milk Civil Action
Producers, Inc., et al. No. 71-B-26
South Texas Independent Milk Producers Civil Action
Assoclation v. Associated Milk Producers No. 71-B-27
~~ Inc., et al.

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CI mm ee A
’ i Sy Fp 3 iE Co ER on }
Fer ~9 0+ : { al IE RE
BEFORE THE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION-/J bali Le. Lr Ce . Wit » oo : . ) - : : : |
DOCKET NO. 83 -- IN RE MIDWEST MILK MONOPOLIZATION °° 0
LITIGATION
ORDER - :
The Panel having found, upon the basis of the ae eT
papers submitted and the hearing held, that the actions SEE KEP IR
listed on the attached Schedule A involve common ques- EE TP
tions of fact and that transfer of these actions to the eT
Western District of Missouri for coordinated or consoli=- Thee
dated pretrial proceedings would serve the convenience
of the parties and witnesses and would further the just :
and efficient conduct of the litigation.
IT IS ORDERED that all actions on the attached E So
Schedule A pending in districts other than the Western _ se
District of Missouri be, and the same hereby are, trans- oo : }
ferred to the Western District of Missouri and, with the ce EE
consent of that court, assigned to the Honorable John W. :
Oliver, for coordinated or consolidated pretrial pro-
ceedings, pursuant to 28 U.S.C. §1407, with the action EI :
pending in that district and listed on Schedule A. :
A full opinion and order will be filed hereafter. BE
| FOR THE PANEL: Lo
B befor Cnn], SE :Alfred P. Murrah SL So :
Trees Chairman Co

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SCHEDULE A DOCKET NO. 83
o WESTERN DISTRICT OF MISSOURI	Ww Spat Mandi bd UF AISSOURL
Robert B. Alexander, et al. v. The National Civil Action
Farmers Organization, et al. No. 19191-1
SOUTHERN DISTRICT OF TEXAS
Marketing Assistance Plan, Inc., et al. Civil Action
Vv. Associated Milk Producers, Inc. No. CA 71-H-841
Sun Tex Dairy, et al. v. Associated Milk Civil Action
Producers, Inc., et al. No. 71-B~26
South Texas Independent Milk Producers Civil Action
Associatiation v. Associated Milk Producers No. 71-B-27
Inc., et al.
Dane O. Petty, d/b/a Petty Dairy, et al. v. Civil Action
Associated Milk Producers, Inc. No. 70-H-319
Norris Food Products, Inc. v. Associated Civil Action
Milk Producets No. 72-H-784
NORTHERN DISTRICT OF ILLINOIS :
Sse rhiy Vio indbl OF LLLINOLS
4 Richard H. Hansen, et al. v. Associated Civil Action
C Milk Producers, Inc., et al. No. 72 C 1042
State of Illinois, et al. v. Associated Civil Action
Milk Producers, Inc., et al. No. 72 C 661
Genesis Group, Inc., etc. v. Associated Civil Action
Milk Products, Inc., et al. No. 72 C 934
Sentry Food Stores, Inc., etc. v. . Civil Action
Associated Milk Producters, Inc., et al. 3 No. 72 C 888
Oberweis Dairy, Inc. v. Associated Milk Civil Action oo
Producers, Inc. No. 72 C 1404
. DISTRICT OF KANSAS
Hyde Park Dairies, Inc. v. Associated Civil Action
Milk Producers, Inc. No. W-=4917
WESTERN DISTRICT OF OKLAHOMA . —	—2onn Yoo ntbl OF OKLAHOMA
Townley's Dairy Co. v. Associated Milk Civil Action
Producers, Inc. No. 72-167

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"SCHEDULE A -2 = DOCKET NO. 83
® DISTRICT OF MINNESOTAEwald Bros, Inc., etc. v. Mid-America Civil Action
Dairymen, Inc., et al. No. 4-72 Civ. 153
Northland Milk & Ice Cream Co. Vv. Civil Action
Mid-America Dairymen, Inc. No. 4-72 Civ. 27
Dairy Distributors, Inc. v. Mid-America Civil Action
Dairymen, Inc. No. 4=72~Civ. 114

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» Ea
JUBICIAL B ppes,
MULTIENSHEA SO
s FL leATIONBEFORE THE JUDICIAL PANE
ON HL - 1875
MULTIDISTRICT LITIGATEOKCIAD HowanERK OF The ppi
IN RE MIDWEST MILK MONOPOLIZATION LITIGATION )
)
Foremost-McKesson, Inc. v. Associated Milk } DOCKET NO. 83
Producers, Inc., N.D. Texas, Civil Action )
No. CA3-74-1220~F )
OPINION AND ORDER
BEFORE ALFRED P. MURRAH, CHAIRMAN, AND JOHN MINOR WISDOM,
EDWARD WEINFELD, EDWIN A. ROBSON, WILLIAM H. BECKER, JOSEPH
S. LORD, III*, AND STANLEY A. WEIGEL, JUDGES OF THE PANEL
PER CURIAM
® The Panel previously transferred several actions
i in this litigation to the Western District of Missouri and,
with the consent of that court, assigned them to the Honorable
John W. Oliver for coordinated or consolidated pretrial pro-
: 1/
ceedings pursuant to 28 U.S.C. §1407.=
* Although Judge Lord was unable to attend the Panel hearing,
he has, with the consent of all parties, participated in
this decision.
1/ In re Midwest Milk Monopolization Litigation, 379 F. Supp.
989 (J.P.M.L. 1974); 379 F. Supp. 991 (J.P.M.L. 1974) ;
386 F. Supp. 1401 (J.P.M.L. 1975).

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® the action and remanded to the Northern District of Texas
pursuant to the proviso in subsection (a) of Section 1407.
Foremost favors transfer of the entire action.
We find that the above-captioned action involves
questions of fact common to the previously transferred
actions and that its transfer to the Western District of
Missouri, pursuant to 28 U.S.C. §1407, for coordinated or
consolidated pretrial proceedings with the actions pending
there will be for the convenience of the parties and wit-
nesses and promote the just and efficient conduct of the
litigation.
[ AMPI contends that transfer of the Foremost action
is inappropriate because none of the active actions in
the transferee court involves any alleged activity on its
part within Texas or Arkansas. This contention is based
on AMPI's assertion that settlements in certain actions have
eliminated the geographic market involved in Foremost from
. 3/
the coordinated or consolidated pretrial proceedings.” In
3/ Although AMPI concedes that one of the actions in the
transferee district, Schepps Dairy, Inc. v. AMPI, No.
74 CV 603 W-1, could conceivably present issues of fact
common to Foremost, it maintains that Schepps should not
properly be considered on the question of transfer now
before us, inasmuch as that action has remained dormant
since October 1974.

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. ¥
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® In re Midwest Milk Monopolization Litigation, 379 F. Supp.
991, 992 (J.P.M.L. 1974). The logic for transferring the
Foremost action is even more compelling because Judge Oliver
has, as a result of his participation in other actions
involving AMPI's alleged activities in Texas and Arkansas.
gained an insight into the factual and legal questions at
issue here.
Nor are we impressed by AMPI's contention that a
transfer of the Foremost action will not necessarily accelerate
discovery therein. Any discovery relating to Foremost hereto-
fore completed in actions already pending in the transferee
® district can be made applicable to Foremost by utilizing
the procedures recommended in the Manual for Complex Litigation,
Part I, §3.11 and Part II, §3.11 (rev. ed. 1973). Indeed,
AMPI's failure to agree with Foremost's proposal to stipulate
that the discovery done in the transferred litigation shall
be applicable to Foremost highlights the need for its
inclusion in the ongoing coordinated or consolidated pretrial
proceedings. Thus, transfer of Foremost will ensure the most
just and expeditious procession of that action as well as
the litigation taken as a whole.
AMPTI alternatively seeks an order from the Panel
( separating and remanding Foremost's Robinson-Patman Act
claim to the Northern District of Texas pursuant to Section

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“an
- 2 -
Foremost-McKesson, Inc. (Foremost), plaintiff in ®
the above-captioned action, alleges that Associated Milk
Producers, Inc. (AMPI) has violated Sections 1 and 2 of the
Sherman Act in certain defined milk marketing order areas in
Texas and Arkansas; that it has violated Section 7 of the
Clayton Act; and that it has violated the Agricultural Fair
Practices Act, the Robinson-Patman Act and the antitrust
laws of the State of Texas. More specifically, Foremost,
like several plaintiffs in the transferee court, alleges that
AMPI instituted and maintained over order "premium" prices
for its raw milk, that it forced depressed revenues for
non-AMPI members by periodically flooding their markets and ®
that it illegally coerced farmers to join AMPI.
Since the above-captioned action appeared to involve
questions of fact common to the actions in the transferee
court, the Panel ordered the parties to show cause why it
should not likewise be transferred to the Western District
of Missouri for inclusion in the coordinated or consolidated
2/
pretrial proceedings pending in that district.” AMPI
opposes transfer or, alternatively, suggests that Foremost's
Robinson-Patman Act claim be separated from the remainder of
2/ Rule 10(b), R.P.J.P.M.L., 65 F.R.D. 253, 260 (1975).
®

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addition, AMPI argues that no substantial acceleration in ®
discovery would be achieved by transferring Foremost to the
Western District of Missouri since this action would likely
be placed in a subsidiary discovery schedule by Judge Oliver
under his "separate track" discovery procedure,
The Panel has previously considered the argument
that the different geographically determined milk markets
involved in several of the actions in this litigation
precludes coordination or consolidation of these actions
under Section 1407. See In re Midwest Milk Monopolization
Litigation, 379 F. Supp. 989,990 (J.P.M.L. 1974). In
rejecting this argument we observed that "[a]ll the actions ®
allege essentially the same conduct on the part of all
defendants and the extensive document discovery reveals large
areas of overlapping factual and legal issues." Id. at 991.
Thus, even if, as AMPI maintains, all the actions involving
alleged activity on its part within the Southern United
States were no longer actively before the transferee court,
we would nonetheless transfer the Foremost action. Indeed, as
we noted in our opinion in the Lawson Milk tag-along action, the
addition of "a geographic market not previously involved in
the transferred litigation is not a barrier to transfer
because separate regional conspiracies are also alleged in ®
each of the transferred actions. (citations omitted)	."

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Y : i
- 6 - ®1407 (a). The sole argument made in support of this request |
is that the Texas court presently has before it certain
motions to dismiss filed by AMPI. We see no reason for
granting this request, however, because these motions can
be presented to and determined by the transferee judge
: following the transfer we are herewith ordering. See	In re
Plumbing Fixture Cases, 298 F. Supp. 484, 495-96 (J.P.M.L.
1968).
IT IS THEREFORE ORDERED that, pursuant to 28 U.S.C.
§1407, the action entitled Foremost-McKesson, Inc. V.
Associated Milk Producers, Inc., N.D. Texas, Civil Action
No. CA3-74-1220-F, be, and the same hereby is, transferred ®
to the Western District of Missouri and, with the consent
of that court, assigned to the Honorable John W. Oliver for
| coordinated or consolidated pretrial proceedings with the
actions in the above-captioned litigation whi ch are already
pending in that district.
®

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: Mu HEAL pa IE SE
BEFORE THE JUDICIAL PANEL Qi Co
| MULTIDISTRICT LITIGATION ls 18 1977 - = oo SE
RE MIDWEST MILK MONOPOLIZATION LITIGATION ) DUCE doy	83 9l 817 IEEE
‘The Page Dairy Company v. Milk, Inc., et al., Ce AeN.D. Ohio, Civil Action No. 75-439
OPINION AND ORDER
‘ORE JOHN MINOR WISDOM, CHAIRMAN, AND EDWARD WEINFELD, EDWIN ) E a. 5 Jie
ROBSON, JOSEPH S. LORD, III*, STANLEY A. WEIGEL, ANDREW A. EE ER
‘PREY, AND ROY W. HARPER*, JUDGES OF THE PANEL oe RPE
! CURIAM
The Panel, pursuant	‘to 28 U.S.C. §1407, previously trans- : 3 Lo
‘red several actions in this litigation to the Western
trict of Missouri and, with the consent of that court, Eo Co
:igned them to the Honorable John W. Oliver for coordinated oo oo
consolidated pretrial proceedings.” B
Defendants in the above-captioned action (Page) are - |
k, Inc. (Milk), a marketing association; Great Lakes- : -
thern Milk, Inc. (Great Lakes), a federation of agricultural EE
keting associations of which Milk is a member; and Orrville So :
k Company (Orrville), a subsidiary of Milk. Plaintiff in oT ER a Co
s action alleges that defendants have viclated Sections 1 RE oo
2 of the Sherman Act and Section 7 of the Clayton Act. : : : Co
e specifically, it is alleged that (i) through mergers, } . .
solidations and acquisitions, Milk has lessened competition oo - . Co -
dges Lord and Harper took no part in the consideration or Co
ision of this matter. Co
n re Midwest Milk Monopolization Litigation, 379 F. Supp.
(J.P.M.L. 1974); 379 F. Supp 991 (J.P.M.L. 1974); 386 F. Supp.
1 (J.P.M.L. 1975); and 398 F. Supp. 676 (J.P.M.L. 1975).

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— : 5
[ and created a monopoly in the production and sale of raw
milk in North Central and Northwestern Ohio, Northeastern
Indiana and Southeastern Michigan (the relevant geographic
market), (ii) Milk and Great Lakes have eliminated competition
by dividing territories and by entering into exclusive business
relationships with processors and producers, (iii) Milk,
Great Lakes, and Great Lakes' members have acted and conspired
to fix the price of raw milk above that set by federal regu~
lators, and (iv) Milk has used Orrville to control the supply
of milk, fix prices and restrict competition in the relevant
geographic market.
Milk is also a defendant and a counterclaim defendant in
two previously transferred tag-along actions, Lawson and
® Keystoner respectively. Lawson was transferred from the
Northern District of Ohio, and Keystone	was transferred
from the Western District of Pennsylvania. In each of those
actions, Milk is charged with violating Sections 1 and 2 of
the Sherman Act, Section 3 of the Clayton Act, and the
Agricultural Fair Practices Act of 1967. Some of the specific
allegations against Milk in those actions are that it and
various co-conspirators monopolized trade and commerce in
raw milk by controlling in excess of 80% of the raw milk
regulated by the federal government in the Eastern Ohio/Western
Pennsylvania marke% area, and that Milk	and its co-conspirators fixed
2/379	F. Supp. 991 (J.P.M.L. 1974).
@ 3/386 r. supp. 1401 (P.M. 1975).

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® prices above the federal floor, excluded competitors, entered into
exclusive dealing contracts with suppliers, processors, and
customers, and coerced others to join the conspiracy.
Milk moves the Panel for an order pursuant to 28 U.S.C.
§1407 transferring Page to the Western District of Missouri for
coordinated	or consolidated pretrial proceedings with the
actions previously transferred there. The plaintiff opposes
. transfer. We find that Page raises questions of fact common
to the previously transferred actions and that Page's transfer
to the Western District of Missouri will best serve the con-
venience of the parties and witnesses and promote the just
and efficient conduct of the Litigation.Y
Most of plaintiff's contentions in opposition to transfer
® have been considered and rejected by the Panel in earlier opinions
concerning this litigation. Plaintiff here argues, as was argued
when we considered the transfer of Lawson, that the shared questions
of fact between Page and the previously transferred actions
are limited and for the most part already discovered. Plaintiff
contends that the applicability of one of the two Federal
Milk Marketing Orders involved in Page, and defendants’
alleged illegal conduct with respect to plaintiff, are
unique to this action. It is further asserted that transfer
would impose a severe financial hardship on plaintiff and that
cooperation of counsel is a suitable alternative to transfer.
4/A11 parties waived their right to oral argument and, accordingly,
® this matter was submitted for decision on the briefs. See Rule14, R.P.J.P.M.L., 65 F.R.D. 253, 264 (1975).

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— . _ 4 _
® These arguments remain unpersuasive. The Page action
contains allegations of federal antitrust law violations by
Milk that raise questions of fact common to those raised against
Milk in the previously transferred Lawson and Keystone actions.
Absent transfer of Page, discovery concerning these violations
could be needlessly duplicated. Of course any discovery unique
to Page may be scheduled by the transferee judge to proceed
concurrently with the common pretrial matters. See In re Midwest
Milk Monopolization Litigation 379 F. Supp. 991, 992 (J.P.M.L.
1974).
Moreover, we have held that the benefits of having all actions
in this litigation controlled by a single judge who can schedule
® discovery to minimize the expense to all parties and maximizeopportunities for the just and expeditious termination of this
litigation outweigh the benefits arising solely from voluntary co-
operation of counsel. In re Midwest Milk Monopolization Litigation,
379 F. Supp. 989, 990-91 (J.P.M.L. 1974). We are sensitive to
plaintiff's concern about the cost of transfer, but we are
confident that the judicious use of liaison counsel, lead
counsel and steering committees would result in an overall net
savings of time, effort and expense and eliminate the need
for most counsel ever to travel to the transferee district.
See Manual for Complex Litigation, Part 1, §§1.90-1.93 (rev.
ed. 1973).
o

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Ay ty - 5 = |
® Should transfer be ordered, plaintiff requests that the Panel5/
remand Page	and Lawson, and retransfer Keystone, to the Northern
District of Ohio. In the absence of a suggestion from the
transferee judge for remand of these actions, however, we
find the question of remand premature. See In re Holiday
Magic Securities and Antitrust Litigation, F. Supp ,
(F.P.M.L., filed July 6, 1977); In re Midwest Milk
Monopolization Litigation, 386 F. Supp. 1401, 1403 (J.P.M.L.
1975). Furthermore, in the past we have been extremely reluctant.
to order retransfer,and we find no basis for retransfer here.
See In re Petroleum Products Antitrust Litigation, supra, 419
F. Supp. at 719.
IT IS THEREFORE ORDERED that, pursuant to 28 U.S.C. §1407,
@ the action entitled The Page Dairy Company v. Milk, Inc., et al.,
N.D. Ohio, Civil Action No. 75-439 be, and the same hereby is,
transferred to the Western District of Missouri and, with the
consent of that court, assigned to the Honorable John W. Oliver
for coordinated or consolidated pretrial proceedings with the
actions previously transferred to that district.
5/Technically, plaintiff asks for remand of Keystone to the
Northern District of Ohio also. While the Panel can only
remand Keystone to its transferor court, the Western District
of Pennsylvania, the Panel has, on one occasion, upon a
showing of unique circumstances, retransferred an entire
multidistrict docket. We are therefore viewing plaintiff's
request regarding Keystone in its most favorable light by
treating it as a request for retransfer. Compare In re
Delta Airlines Inc. Flight Attendant Weight Standards Liti-
gation, 411 F. Supp. 795, 797 (J.P.M.L. 1976) with In re
Petroleum Products Antitrust Litigation, 419 F. Supp 712,
@ 7:0 Grn 1976).

Case MDL No. 83 Document 2 Filed 04/30/15 Page 17 of 30
~ BEFORE THE JUDICIAL PANEL Co N RE: ON EEE
MULTIDISTRICT LITIGATION : So --
IN RE MIDWEST MILK MONOPOLIZATION LITIGATION ) DOCKET NO. 83 Cae REE
Westmoreland Farm Dairy, Inc. v. Associated ) ’ 7 bo Co :Milk Producers, Inc., et al., S. D. Texas, ) 12) [7] ;
Civil Action No. 74-H-543 ) “a = (A
Associated Milk Producers, Inc. v. Certified ) 52 Ce
Grocers of Illinois, Inc., W. D. Wisconsin, ) In 2 LES
civil Action No. 77 C 60 ) on old :
Central Milk Producers Cooperative v. C0) ot ne EE Lee -
Certified Grocers of Tllinois, Inc., ) SCT Co
W. D. Wisconsin, Civil Action No. 77 C S85 ) = BL EERE SERN EEA
FEN Ho EE EE
OPINION AND ORDER Tr 2% gs
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 n . LT
PER CURIAM FE
I. OVERVIEW | oo
The Panel, pursuant to 28 U.S.C. §1407, previously Co :
transferred several actions in this litigation to the Co |
Western District of Missouri and, with the consent of oe Co
that court, assigned them to the Honorable John W. ore )	. 1 ERE
for coordinated or consolidated pretrial proceedings.
A. Westmoreland oo | SE
The first of the above-captioned actions (Westmoreland) Se :
was brought in the Southern District of Texas on April 19, |
1974, by Westmoreland Farm Dairy, Inc. (Westmoreland), a
* Judge Lord tock no part in the decision of this matter. : oo
l/ In re Midwest Milk Monopolization Litigation, 379 F. Co
Supp. 989 (J.P.M.L. 1974); 379 F. Supp. 991 (J.P.M.L. 1974); oo )
386 F. Supp. 1401 (J.P.M.L. 1975); 398 PF. Supp. 676 (J.P.M.L. A
1975); and 435 F. Supp. 930 (J.P.M.L. 1977). oo h

Case MDL No. 83 Document2 Filed 04/30/15 Page 18 of 30
Lb B - 2 =
purchaser and marketer of milk. Defendants are Associated
® Milk Producers, Inc. (AMPI), a large milk marketing and
producers' cooperative;	and Borden, Inc. (Borden), a
company which, like plaintiff Westmoreland, is a purchaser
- . and marketer of milk. AMPI has been a party to more than twenty
other actions in this litigation, but Borden and West-
moreland are parties only to this action. One or both of the
: defendants are charged with various violations.	of the federal anti-
trust laws, including: (i) monopolizing the market for
raw fluid milk in the South Texas Marketing Area (an area |
’ defined by federal agricultural regulations); (ii) engaging
in predatory pricing activities designed to depress prices
paid to non-members of AMPI; (iii) entering into exclusive
C dealing contracts with customers, members of AMPI, and oo
| milk haulers, and (iv) granting illegal kickbacks and )
subsidies to companies that are in competition with West-
moreland, such as defendant Borden. AMPI has counterclaimed
against Westmoreland for sums allegedly due for milk sold to
Westmoreland.
’ Class action certification was denied in Westmoreland,
and it is proceeding as an individual action. Westmoreland
had been scheduled for trial in the Southern District of Texas
during July or August of 1977 by the Honorable Ross N. Sterling.
on July 14, 1977, Judge Sterling denied Westmoreland's
o .

Case MDL No. 83 Document2 Filed 04/30/15 Page 19 of 30
-3 = |
request for a postponement of the trial date. We have
® been advised that after the present motion for transfer of
Westmoreland under 28 U.S.C. §1407 was filed, however, he
removed the action from his trial docket pending the panel's
decision on the question of transfer.
' B. Wisconsin Actions
The second and third above-captioned actions were
brought in the Western District of Wisconsin, one by AMPI
and the other by Central Milk Producers Cooperative (CMPC),
| another milk marketing and producers' cooperative. Defend-
ant in both actions is Certified Grocers of Illinois,
Inc. (Certified), a wholesale grocery and dairy company
that purchased raw milk from plaintiffs and plaintiffs’
C members. Plaintiffs charge Certified with refusing to paysums due and with violations of state agricultural cooperative
laws by coercing milk producers to refrain from joining or
continuing to be members of AMPI or CMPC.
Certified has filed a joint counterclaim charging
AMPI and CMPC with violations of the federal antitrust laws.
More specifically, in that counterclaim AMPI and CMPC
are alleged to have eliminated competition in the pro-
duction, marketing and pricing of raw milk in the Chicago
marketing area by means of illegal acquisitions, exclusionary
contracts, boycotts, diversion of supplies, and improper
subsidies and kickbacks. Some or all of these allegations
are also asserted against AMPI and CMPC in six actions presently
o |

Case MDL No. 83 Document2 Filed 04/30/15 Page 20 of 30
Lo - 4 - |
pending in the transferee district that were transferred
(| from the Northern District of Illinois and in one action
that was recently remanded by the Panel from the transferee
district to the Northern District of Illinois at the
suggestion of Judge oriver.Y
C. Proceedings Before the Panel
Plaintiff Westmoreland moves the Panel pursuant to
28 U.S.C. §1407 for an order transferring Westmoreland to
. the Western District of Missouri for coordinated or con-
solidated pretrial proceedings with the actions previously
transferred there. AMPI and Borden oppose transfer.
The Panel has issued an order conditionally transferring
the Wisconsin actions to the Western District of Missouri
o under Section 1407 for inclusion in the coordinated or con-
solidated pretrial proceedings in that ststrice.” AMPI
and CMPC oppose transfer of their claims against Certified,
but favor transfer of Certified's counterclaim. Certified
. opposes transfer of all claims and opposes separation of
the primary claims from the counterclaim. In the alternative,
if transfer is deemed desirable, Certified moves that the
| two Wisconsin actions be transferred to the Northern District
of Illinois for coordinated or consolidated pretrial pro-
ceedings with the recently remanded action pending in that
district.
27 An eighth action involving the two defendants and most of
these allegations was dismissed in the transferee district.
C 3/ See Rule 9, R.P.J.P.M.L., 65 F.R.D. 253, 259 (1975). :

Case MDL No. 83 Document2 Filed 04/30/15 Page 21 of 30
_ _ : Cs :
0 II. HOLDING AND REASONING | |We find that transfer of Westmoreland at this time
would not serve the convenience of the parties and witnesses
or promote the just and efficient conduct of the litigation.
We further find that the Wisconsin actions raise questions:
of fact common to previously transferred actions in this
litigation and that transfer of the Wisconsin actions to
the Western District of Missouri will best serve the con-
: venience of the parties and witnesses and promote the just
and efficient conduct of the Litigation.”
A. Westmoreland
. We agree with the movant that Westmoreland contains
allegations of federal antitrust law violations that raise
® questions of fact common to previously transferred actions
in this litigation. We note, however, that the processing
of Westmoreland has proceeded in the Southern District of
Texas for over three and one half years, a trial date had
been set in that action, a request for postponement of trial
had been denied by Judge Sterling, and only the decision by
Judge Sterling to delay the start of the trial pending the
Panel's determination has prevented the action from
being tried by now. Thus, it is apparent that the
Texas court deems pretrial activities in Westmoreland to
4/ ALLparties in Westmoreland and the Wisconsin actionswaived their right to oral argument and, accordingly, the
® question of transfer of these actions under Section 1407	was submitted for decision on the briefs. See Rule 14,
R.P.J.P.M.L, 65 F.R.D. 253, 264 (1975).

Case MDL No. 83 Document2 Filed 04/30/15 Page 22 of 30
C6 -
be either completed or very near completion and that trial
® of Westmoreland is imminent. Under these circumstances,
transfer of Westmoreland is unwarranted. See In re Celotex
Corp. "Technifoam" Products Liability Litigation, 68 F.R.D.
502, 505 (J.P.M.L. 1975). .
B. The Wisconsin Actions |
- Certified argues that little of the discovery that
has been completed in the transferee district would be
relevant to the Wisconsin actions because those actions
involve viclations alleged to have occurred during a time
period different from the time periods in the complaints in
most of the actions in the transferee district. Certified
also contends that, like the recently remanded Illinois i.
o action, the Wisconsin actions are brought by direct pur-
chasers of raw milk in the Chicago marketing area, and that
if the remanded action no longer belongs in the transferee
district, then neither do the Wisconsin actions. Finally,
Certified urges that most of the witnesses and documents
relevant to the Wisconsin actions will be found in the
Chicago area, and therefore it suggests that if transfer
is deemed appropriate by the Panel, the Wisconsin actions
should be transferred to the Northern District of Illinois
| where they can be coordinated or consolidated for pretrial
proceedings with the remanded action.
®

Case MDL No. 83 Document2 Filed 04/30/15 Page 23 of 30
C. Co - 7 = r
| C These arguments are unpersuasive. Several acuions nowpending in the transferee district, including two actions
in which AMPI and CMPC are charged with antitrust vio-
lations committed within the Chicago milk marketing area,
involve time periods that overlap the time period involved
in the Wisconsin actions. Because the Wisconsin actions thus
share questions of fact with actions in the transferee
district, transfer of the Wisconsin actions is necessary to :
prevent needlessly duplicative discovery and otherwise i
further the purposes of Section 1407. Since the record
before us reveals the commonality of the two Wisconsin
actions with actions currently in the transferee district,
| the fact that a related action has been remanded to
C Illinois provides no basis to exclude the Wisconsin i
actions from the centralized proceedings in the trans-
: feree district, nor does that fact provide any justification
for transferring the Wisconsin actions to the Northern
District of Illinois. We observe that the recently
| remanded Illinois action was pending in the transferee
district for over four years prior to its remand, and that
AMPI and CMPC, which are parties to that action, agreed
that it had become appropriate for remand, whereas here
those parties favor transfer of the counterclaim for
inclusion in the Section 1407 proceedings in the transferee
district.
®

Case MDL No. 83 Document2 Filed 04/30/15 Page 24 of 30
Ta | -8 = |
® Of course, witnesses will likely be deposed in proximity© to where they reside regardless of transfer under Section
1407, see Fed. R. Civ. P. 45(d) (2); Certified need not
participate in pretrial proceedings unrelated to the
| Wisconsin actions, see, e.g., Manual for Complex Litigation,
Part I, §2.31 (rev. ed. 1977); and the transferee judge has
broad discretion to allow discovery on any issues unique
to the Wisconsin actions to proceed concurrently with the
common pretrial matters, see In re Midwest Milk Monopolization,
supra, 435 F. Supp. at 932. Moreover, procedures are available
| to make discovery heretofore completed in the transferee
district applicable to the Wisconsin actions. See Manual,
Supra, at Parts I & II, §§3.1l1l. |
C The Panel is empowered, pursuant to 28 U.S.C. §1407(a),
to couple its order of transfer with a simultaneous
separation and remand of any claims in an action. AMPI
and CMPC, however, have failed to present any reasons in
support of their opposition to transfer of their claims
against Certified. Accordingly, we see no reason at the
present time to exclude those claims from the coordinated
or consolidated pretrial proceedings. See In re Milk
Milk Monopolization Litigation, supra, 386 F. Supp. 1402-03.
: IT IS THEREFORE ORDERED that the motion pursuant to
28 U.S.C. §1407 to transfer the action entitled Westmoreland
Farm Dairy, Inc. v. Associated Milk Producers, Inc., et al.,
C S. D. Texas, Civil Action No. 74-H-543, be, and the samehereby is, DENIED.

Case MDL No. 83 Document2 Filed 04/30/15 Page 25 of 30
LL Sa - 9 -
® IT IS FURTHER ORDERED that, pursuant to 28 ‘U.S.C. §1407,	the actions entitled Associated Milk Producers, Inc. Vv. |
Certified Grocers of Illinois, Inc., W.D. Wisconsin, Civil
Action No. 77 C 60, and Central Milk Producers Cooperative
v. Certified Grocers of Illinois, Inc., W.D. Wisconsin,
Civil Action No. 77 C 95, be, and the same hereby are,
transferred to the Western District of Missouri and, with :
the consent of that court, assigned to the Honorable John
W. Oliver for coordinated or consolidated pretrial proceedings
with the actions already pending in MDL-83.
®
C .
. ’ [J

Case MDL No. 83 Document 2 Filed 04/30/15 Page 26 of 30
. i }
|
’ . NET Boa | oC . | . :
MULTE RRL	oy EE
: NY ISAT Na :
a doko)| Al 2g 1953 iE BEE
PATRI 1 Fy IE a TT nv
CLZRK	(7 jp HD ' Pe :
BEFORE THE JUDICIAL PANEL BR IT ‘ .
ON
MULTIDISTRICT LITIGATION :
IN RE MIDWEST MILK )
MONOPOLIZATION LITIGATION) So : RE
) DOCKET NO. 83 A CEE
Page Milk Company, et al.) PE FL
v. Associated Milk ) - Coe
Producers, Inc., E.D. ) Le
Wisc., C.A. No. 75-C-238 ) . AEE
| OPINION AND ORDER
BEFORE MURRAY I. GURFEIN, CHAIRMAN, AND ANDREW A. CAFFREY, Le oe Co
ROY W. HARPER, CHARLES R. WEINER, EDWARD S. NORTHROP, Co
AND ROBERT H. SCHNACKE, JUDGES OF THE PANEL. os - ’ Co
PER CURIAM : oo
The Panel, pursuant to 28 U.S.C. §1407, previously - oo
transferred several actions in this litigation to the ks :
Western District of Missouri and, with the consent of that 8 -
court, assigned them to the Honorable John W. Oliver for
coordinated or consolidated pretrial proceedings. In re
Midwest Milk Monopolization Litigation, 379 F. Supp. 989 a Co
(J.P.M.L. 1974); 379 F. Supp. 992 (J.P.M.L. 1974); 386 AE
F. Supp. 1401 (J.P.M.L. 1975); 398 F. Supp. 676 (J.P.M.L.
1975); 435 F. Supp. 930 (J.P.M.L. 1977); and 441 F. Supp.
930 (J.P.M.L. 1977). Claims in the actions included in . oo
MDL-83 charge many large milk marketing and producers’ Co CL
cooperatives with violating the federal antitrust laws ’ -
by monopolizing and restraining trade in several geographic oo
areas within the milk industry. Judge Oliver has been
FPI-MAR—-3.27.73.6M4-178;

Case MDL No. 83 Document 2 Filed 04/30/15 Page 27 of 30
- 2 - E nN
' trying the lead case in the MDL-83 actions for over two | I a Co
years, having heard the last live witness in June, 1979. oo or SRA
Page was brought in the Eastern District of Wisconsin JE IE
on April 28, 1975, by two companies engaged in the processing,
handling, distribution and sale of milk in the Midwest.
The defendant is Associated Milk Producers, Inc. (AMPI), Ce Le co
an agricultural cooperative marketing association formed RE EE
in 1969 as a successor to 36 or more regional cooperatives. RE Co
AMPI has been a defendant in more than twenty actions pending
in MDL-83. Plaintiffs allege that AMPI has conspired, .
in violation of Sections 1 and 2 of the Sherman Act, to - . 0
restrain and monopolize trade in milk since at least 1966. N a
More specifically, AMPI is claimed, inter alia, to have B Co So
deliberately foreclosed and eliminated alternative sources : | Co
of milk supply reasonably available to the plaintiffs and a
other processors; eliminated competing producers of milk -
from the market by depressing prices and by requiring processors | |
to enter into full supply contracts with AMPI; interfered B | |
with efforts by the plaintiffs to purchase milk from independent BE | C
milk producers and other processors; forced independent oo ) Ce oo Co
producers of milk to join AMPI; eliminated independent :
processors and independent milk producers by acquiring a
the business and assets of processors and producers; and ' . oo i
extracted from plaintiffs and other processors a premium | oo To
over prices set by federal milk marketing orders. Other : oC B
actions in the transferee district raise identical claims ’ : Co
against AMPI and other defendants. Plaintiffs also allege
that AMPI has discriminated directly and indirectly in |FPI-MAR—-3 27.78.6M.1781

Case MDL No. 83 Document2 Filed 04/30/15 Page 28 of 30
v _ 3 -
® 1 the price of milk and milk products, and has also discriminated	2 in commissions, allowances, and services regarding milk
3 products, all in violation of the Robinson-Patman Act.
4 The Panel has issued an order to show cause why Page
" should not be transferred to the Western District of Missouri
for coordinated or consolidated pretrial proceedings
° with the actions pending there in MDL-83. See Rule 10(b),
’ R.P.J.P.M.L., 78 F.R.D. 561, 568 (1978). AMPI supports
8 transfer of Page, and plaintiffs oppose transfer. We find
9 that transfer of Page at this time would not serve the
10 convenience of the parties and witnesses or promote the
11 just and efficient conduct of the litigation.
12 AMPI asserts that Page raises questions of law and
CJ fact common to those raised in other actions against AMPI	+ previously transferred to the Western District of Missouri,
14 such as whether AMPI has eliminated competition in, and
15 monopolized the sale and supply of, milk in AMPI's marketing
: 16 area by various means including acquisitions, exclusionary
17 contracts, boycotts, diversion of supplies and milk pooling
18 practices. AMPI urges that transfer of Page will avoid
19 duplicative discovery, will prevent inconsistent pretrial
20 rulings, and will result in an overall savings of time,
| expense and effort.
21 While we agree that Page contains allegations of federal
22 antitrust law violations that raise questions of fact common
23 to those in previously transferred actions in this litigation,
® we are nevertheless persuaded that transfer of Page is25 | presently unnecessary. We note that Page has been pending|
FPI—MAR—3-27-78.6H-1781

Case MDL No. 83 Document2 Filed 04/30/15 Page 29 of 30
- 4 - :
1 in the Eastern District of Wisconsin for over four and J
2 one half years and AMPI, one of the original defendants
3 in MDL-83 in the transferee district, has previously made
4 no effort to bring the pendency of Page to the Panel's
attention for consideration of inclusion in Section 1407
> proceedings in the transferee district.t/ Now, not only
© have pretrial proceedings already been concluded in the
7 lead action in the transferee district, but the lead action
8 itself has been in trial for over two years. Moreover,
9 AMPI acknowledged at oral argument before the Panel that
10 pretrial on the common questions of fact in this litigation
11 has for the most part been completed in the transferee
district. Transcript at 11-13. Under these circumstances,
= we conclude that transfer of Page is unwarranted.
13 We observe that suitable alternatives to Section 1407
14 transfer are available to minimize the possibility of dupli-
15 cation with respect to the remaining discovery in Page.
16 Any party could ask the judge supervising Page to issue
17 an order to show cause why the discovery already completed
18 in the MDL-83 actions in the transferee district should
10 not be made applicable to Page. Or the parties could stipulate
that that discovery could be used in Page. See In re Raymond
20 Lee Organization, Inc. Securities Litigation, 446 F. Supp.
21 1266, 1268 (J.P.M.L. 1978). In addition, communication
22
23 1/ Panel Rule 10(e), supra, 78 F.R.D. 568, which was
adopted in August, 1978, provides as follows: "Any party
24 in actions previously transferred under Section 1407...
shall notify the Clerk of the Panel of any potential 'tag-along
55 actions' in which that party is also named."
|
FPI-MAR—3.27.79-6M-1781

Case MDL No. 83 Document2 Filed 04/30/15 Page 30 of 30
HN
3 - 5 —
v
CJ and cooperation between the Wisconsin and Missouri courts,2 if deemed appropriate by those courts, along with the
3 cooperation of the parties, would minimize the possibility
4 of conflicting pretrial rulings. See In re Eli Lily §&
Co. (Cephalexin Monohydrate) Patent Litigation, 446 F.
° Supp. 242, 244 (J.P.M.L. 1978).
© IT IS THEREFORE ORDERED that the order to show cause
7 filed on October 23, 1979, with respect to the action entitled
8 Page Milk Company, et al. v. Associated Milk Producers,
° Inc., E. D. Wisconsin, C.A. No. 75-C-238, be, and the same
10 hereby is, VACATED.
11
12
@
14
15
16
17
18
19
20
21
22
23
J)25
FPI-MAR——3.27.79.6M-1781