IN RE: Insulin Manufacturing Antitrust Litigation

Case MDL No. 418 | Document 2 Filed 05/20/15 Page 1 of 7
1 FlLED 2 poo
2 APR 10 1989 Voto) LoPATRICIA 0. 17a Co
3 BEFORE THE JUDICIAL PANEL CLERKOF THZTse) SEE
4 MULTIDISTRIOT LITIGATION
5 IN RE INSULIN MANUFACTURING ANTITRUST ) DOCKET NO. 418
LITIGATION )
6 OPINION"	AND ORDER So Ce 5
BEFORE ANDREW A. CAFFREY, CHAIRMAN, AND ROY W. HARPER, CHARLES IEEE
8 R. WEINER, EDWARD S. NORTHROP, AND ROBERT H. SCHNACKE, JUDGES :
OF THE PANEL.
2 PER CURIAM
Lo This litigation consists of three actions pending in : Co
1 three federal districts: one each in the Northern District : : —
) of Illinois, the Northern District of California and the : oo oo
3 Eastern District of Pennsylvania. Involved in this litigation a
a are alleged anticompetitive practices in the animal pancreas
gland industry (animal pancreas glands are the "raw material" ; oo .
a for insulin) and the finished insulin industry. |
6 The Chicago Regional Office of the Federal Trade Commission -
7 (FTC) conducted an investigation concerning alleged unfair EE
8 methods of competition (1) in the purchase and sale of pancreas el
9 glands used in the manufacture of insulin and (2) in the |
0 manufacture and sale of insulin. The FTC investigation
1 resulted in a proposed consent order between the FTC and - :
Eli Lilly and Company (Eli Lilly) which was published on
2 September 21, 1979. Armour Pharmaceutical Company (Armour) ]
3 and Eli Lilly represent that the FTC investigation spawned Co a :
4 the filing of the three actions in this litigation. Other ] |
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1 parties, however, maintain that plaintiff in the Illinois : ~ RO2 action spawned the FTC investigation. ! oo a .
3 The Illinois action was filed in March, 1978, by By-Prod N Ce
4 Corporation (By-Prod), a small pancreas gland collector,
against Eli Lilly, Armour and twelve other defendants.
> The complaint in this action alleges, inter alia, that By-Prod Lt SHEE :
6 attempted to enter the business of collecting and selling Sa
7 animal pancreas glands and other by-products in 1973; that Ce
8 defendants conspired to eliminate By-Prod as a competitor -
9 through refusals to buy animal pancreas glands from By-Prod
10 and by inducing other customers or suppliers to refuse to E Co oo
11 deal with By-Prod; and that defendants' activities constitute : oo
violations of Sections 1 and 2 of the Sherman Act. By-Prod a
12 seeks both injunctive relief and damages.
13 The Illinois action was originally filed in the Northern
14 District of California but was transferred by the court i
15 in California to the Northern District of Illinois, pursuant
16 to 28 U.S.C. §1404(a) and §1406(a). Plaintiff and four
17 of the defendants had stipulated to the transfer. FE
18 Pretrial proceedings are advanced in the Illinois action. oo
19 More than 30,000 pages of documents and 40 reels of microfilmed
records have been produced. Several sets of interrogatories
20 have been answered. Five weeks of depositions have been _
21 completed and additional depositions have been scheduled. : -
22 The Pennsylvania action was filed by the Philadelphia }
23 Geriatric Center (Philadelphia Geriatric) in late November, [OE :
24 1979, as a class action, on behalf of all non-governmental } |
25 purchasers of insulin from Eli Lilly, against Eli Lilly, -
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} 1 Armour and Novo Industri A/S (Novo). The complaint alleges, |
® 2 inter alia, that those who purchased finished insulin from
3 Eli Lilly since 1952 did so at prices that were artificially
4 fixed at levels higher than competitive levels. The complaint
charges defendants with having violated Sections 1 and 2
> of the Sherman Act and plaintiff seeks both injunctive relief
6 and damages. Limited pretrial proceedings have occurred
7 in this action.
8 The California action was filed by O'Neill Meat Company
9 (O'Neill) and Food Equipment Leasing (Food Equipment) in
10 December, 1979, as a class action on behalf of all meat
11 packers selling animal pancreas glands to Eli Lilly, Armour
and H.A. Salzman and Company (Salzman), the defendants.
12 The complaint alleges, inter alia, that since 1952 defendants
® 13 have conspired to fix, maintain and stabilize the prices
14 paid for beef and pork pancreas glands, in violation of
15 Section 1 of the Sherman Act. Plaintiffs seek damages.
16 No discovery has occurred in this action.
17 The matter is before the Panel on the motion of Eli
18 Lilly and Armour, pursuant to 28 U.S.C. §1407, to centralize
19 the three actions in this litigation in the Northern District
of Illinois for coordinated or consolidated pretrial proceedings.
20 O'Neill and Food Equipment, plaintiffs in the California
21 action, join in the motion. Novo, defendant in the Pennsylvania
22 action only, states that it does not oppose the motion.
23 By-Prod, plaintiff in the Illinois action; and Philadelphia
24 Geriatric, plaintiff in the Pennsylvania action, oppose
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1 the motion. No other party has responded.l/
2 We find that, although these actions involve some common
3 questions of fact, transfer under Section 1407 would not
4 necessarily serve the convenience of the parties and witnesses
or promote the just and efficient conduct of the litigation.
° Accordingly, we deny the motion to transfer.
© While movants acknowledge that there may be some unique
7 factual issues involved in each of the three actions because
8 of the different positions of the various plaintiffs in
9 the pancreas and insulin industry, movants argue that common
10 questions of fact relating to the following issues, among
11 others, predominate in this litigation: (1) the manner
in which insulin manufacturers and other collectors and
. brokers of glands deal with slaughterhouses and packing
13 plants; (2) the relationships between the manufacturers
14 of insulin and the suppliers of pancreas glands; (3) the
15 alleged price-fixing and stabilization of prices for animal
16 pancreas glands; and (4) claims of monopolization of both
17 the pancreas gland and insulin markets. Thus, movants contend
18 that coordinated or consolidated pretrial proceedings under
19 Section 1407 would prevent duplicative discovery, eliminate
the possibility of inconsistent pretrial rulings, conserve
20 judicial resources, and otherwise serve the convenience
21 of the parties and witnesses and promote the just and efficient
22 conduct of the litigation. Movants note that the transferee
23
1/ Movants represent that Salzman, a defendant in the California
24 action, "has authorized [movants] to represent that it does
not oppose transfer of the [California] action to Chicago."
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. 1 judge would have the broad discretion to allow discovery
) 2 on issues unique to any action to proceed concurrently with
3 the common discovery. :
4 We find these arguments unpersuasive. The Illinois
action was commenced over two years ago, considerable discovery
> has occurred in this action, and the Illinois plaintiff
6 maintains that the action is nearly ready for trial. Thus,
7 on the basis of the record before us, inclusion of the Illinois
8 action in centralized pretrial proceedings could delay the
9 termination of that action without producing any overriding
10 benefit to the litigation as a whole. See In re Celotex
11 Corporation "Technifoam" Products Liability Litigation,
68 F.R.D. 502, 505 (J.P.M.L. 1975).
+2 Only two other actions are involved here. And, although
® 13 we recognize the existence of common questions of fact between
14 these two actions, movants have not met their burden of
15 convincing us that these common factual questions are suffi~-
16 ciently complex and that the accompanying discovery will be
17 SO time consuming as to justify transfer under Section 1407.
18 see In re Scotch Whiskey Antitrust Litigation, 299 F. Supp. :
543, 544 (J.P.M.L. 1969).
19
We observe that suitable alternatives to Section 1407
20 transfer are available in order to minimize the possibility
21 of duplicative discovery. For example, the parties may
22 request from the appropriate district courts that discovery
23 completed in any action and relevant to one or both of the
24 other actions be made applicable to those actions; or the
® 25 parties could seek to agree upon a stipulation that any
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1 discovery relevant to more than one action may be used in }
2 all those actions. See also In re the Upjohn Company Antibiotic
3 Cleocin Products Liability Litigation, 81 F.R.D. 482 (E.D.
4 Mich. 1979); Manual for Complex Litigation, Parts I and
5 II, §§3.11 (rev. ed. 1977). Also, consultation and cooperation
among the three concerned district courts, if viewed appropriate
® by those courts, coupled with the cooperation of the parties,
7 would minimize the possibility of conflicting pretrial rulings.
8 See In re Raymond Lee Organization Inc. Securities Litigation,
9 446 F. Supp. 1266, 1268 (J.P.M.L. 1978).
10 | IT IS THEREFORE ORDERED that the motion pursuant to
11 28 U.S.C. §1407 to transfer the actions listed on the following
12 Schedule A be, and the same hereby is, DENIED.
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C1 DOCKET NO. 418
[ 2 SCHEDULE A
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NORTHERN DISTRICT OF ILLINOIS
4 By-Product Corp. v. Eli Lilly and Co., C.A. No.
5 et al. 78C3627
. EASTERN DISTRICT OF PENNSYLVANIA
Philadelphia Geriatric Center, etc. v. C.A. No.
7 Eli Lilly and Co., et al. 794364
8 NORTHERN DISTRICT OF CALIFORNIA
O'Neill Meat Co., et al. v. Eli Lilly C.A. No.
9 “and Co., et al. C79-3755-SAW
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