IN RE: Multidistrict Civil Actions Involving the Distribution of Scotch Whiskey

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THE JUDICIAL PANEL (2 Ca “4	ON MAY 2 11903 Eos
MULTIDISTRICT LITIGATION 119% RSCATRIGIA © WL B SRN: |
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IN RE MULTIDISTRICT CIVIL ANTITRUST ) ns
ACTIONS INVOLVING THE DISTRIBUTION OF ) DOCKET NO. 19
SCOTCH WHISKEY ) :
OPINION AND ORDER
BEFORE ALFRED H. MURRAH, CHAIRMAN, AND JOHN MINOR WISDOM,
WILLIAM H. BECKER, JOSEPH S. LORD, III, EDWIN A. ROBSON,
STANLEY A. WEIGEL, AND EDWARD WEINFELD, JUDGES OF THE PANEL oo
JOSEPH S. LORD, III, JUDGE OF THE PANEL
On February 24, 1969 certain defendants in the cases -
listed on the attached schedule A filed a motion with the Panel N
urging the transfer of the Colorado case to the District of :
New Jersey for coordinated or consolidated pretrial proceedings. :
A hearing on this motion was held in New York on March 31, 1969. |
The Colorado plaintiffs have strongly opposed the transfer of a
their case to New gersey.Y
The main thrust of both complaints involves a claim
that the two principal defendants, Schenley and Buckingham, 3
through the former's acquisition of controlling interest of the Se
latter, have conspired, monopolized and restrained the trade in :
distilled spirits (and particularily scotch whiskey) in violation
of sections 1 and 2 of the Sherman Act (15 U.S.C. § 1 and 2).
1/The New Jersey plaintiffs do not oppose the proposed
. transfer.

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The complaints further charge that this national conspiracy was
implemented by local conspiracies in geographical areas covered
by the separate complaints. All parties agree that there is at
least one essential common question of fact between both cases:
the effect of the acquisition by Schenley of Buckingham on the
2
national liquor market.-/
The legislative history provides a guide for determining
under what conditions litigation involving a minimum number of
cases is appropriate for consolidation under § 1407.
If only one question of fact is common to two or three
cases pending in different districts there probably
will be no order for transfer, since it is doubtful
the transfer would enhance the convenience of parties
and witnesses or promote judicial efficiency. It is
possible, however, that a few exceptional cases may
® share unusually complex questions of fact . . . (and
that) substantial benefit may accrue to courts and
litigants through consolidated or coordinated pretrial
proceedings. (Senate Report 454 to accompany S. 159,
pages 4 - 5)
The two cases are not, in our opinion, exceptional cases sharing
unusually complex questions of fact. If this litigation involved
the number of cases generally associated with multidistrict civil
3
treble damage antitrust litigation,-/the common questions of fact
2/An amended complaint has recently been filed in the New
Jersey action and the moving defendants contend that any differences
between the claims in the two actions have now been eliminated, a
contention vigorously opposed by the Colorado plaintiffs. Since
we have assumed the existence of substantial common questions of
fact we need not determine whether the amended complaint has the
effect claimed by the defendants.
3/The Panel has ordered transfers under §1407 in the following
groups of civil treble damage antitrust cases: Library Edition of
Chidren's Books (44 cases), Plumbing Fixtures (59 cases), Protection
Devices (82 cases), Antibiotic Drug (97 cases), Gypsum Wallboard
C (52 cases).

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might be sufficient to invoke §1407, but where, as here, there
are a minimal number of cases involved in the litigation the
moving party bears a strong burden to show that the common
questions of fact are so complex and the accompanying common
discovery so time-consuming as to overcome the inconvenience
to the party whose action is being transferred and its witnesses.
These factors do not emerge from the present record. Nor do
these two cases appear to be merely forerunners of many such
actions.
In short, we are not convinced that the just and effi-
cient conduct of these two cases will be furthered by the trans-
fer of one of the cases under §1407 to the district in which the
® other case was originally filed. We are compelled to add that
we see no reason why the duplicative discovery envisioned by the
defendants should occur. Counsel for all parties under the
guidance of the courts and using the procedures described in the
Manual for Complex and Multidistrict Litigation should be able to
conduct pretrial proceedings so that inconvenience to all parties
and witnesses can be minimized and duplicate discovery can be
avoided.
THE MOTION TO TRANSFER IS DENIED.
L
hi (dikzJudge of the Panel
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SCHEDULE A
DISTRICT OF COLORADO
1. Davis Bros., Inc. v. Schenley Industries, Civil Action
Inc., et al. No. C-1137
DISTRICT OF NEW JERSEY
2. Reitman Industries, Inc., et al. v. Civil Action
Schenley Industries, Inc., et al. No. 1309-68