IN RE: Baldwin-United Corporation Litigation

i Case MDL No. 581 Document 6 Filed 06/01/15 Page 1o0f5
JUDICIAL PANEL 5
HULTIBISTRICT LITIGATION
FILED
RELEASED FOR PUBLICATION FEB 27 198%
PATRICIA D. HOWARD
CLERK OF THE PANEL
DOCKET NO. 581
BEFORE THE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION
IN RE BALDWIN-UNITED CORPORATION LITIGATION
BEFORE ANDREW A. CAFFREY, CHAIRMAN, ROBERT H. SCHNACKE, FRED
DAUGHERTY, SAM C. POINTER, JR.,* S. HUGH DILLIN, MILTON POLLACK,#* AND
LOUIS H., POLLAK, JUDGES OF THE PANEL
TRANSFER ORDER
PER CURIAM
This litigation presently consists of 41 actions pending in nine
federal dlstricts as follows:
Southern District of New York 23 actions
Northern District of Illinois 8 actions
Western District of Pennsylvania 3 actlons
Eastern District of Tennessee 2 actlons
Southern District of Florida 1 action
District of Maine 1 action
District of Minnesota 1 action
District of New Hampshire 1 action
Eastern District of Pennsylvania 1 action
Now before the Panel 1s a motion by parties that are defendants in 38
of the U1 actions to centralize all actions in the Southern District
of New York for ggordinated or consolidated pretrial proceedings under28 U.S.C. §1407.~ The plaintiffs in the two Tennessee actions oppose
¥ Judge Milton Pollack recused himself and took no part in the
decision of this matter. Additionally, Judge Sam C. Pointer, Jr.,
took no part in the decision of this matter.
i/ The motion for Section 1407 transfer in this docket included five
actions pending in the Northern District of Alabama and the Central
District of California that have subsequently been dismissed.
Accordingly, consideration of transfer with respect to those actions
1s moot. Various parties have also notified the Panel of the pendency
of related actions that were not included on the schedule of actions
accompanying the Section 1407 motion in this docket and were brought
to the Panel's attentlon too late to be included in the hearing held
on January 26, 1984. In accordance with Rules 9 and 10, R.P.J.P.M.L.,
89 F.R.D. 273, 278-80 (1981), these actions will be treated as
potential tag-along actions.

Case MDL No. 581 Document 6 Filed 06/01/15 Page 2 of 5
-J-
transfer of their actions. All other responding parties to the
actions now before the Panel, including the defendant in one other
action, plaintiffs in 34 actions, and the Arkansas and Indiana
commissioners of insurance (who are the court-appointed
rehabilitators of six insurance companies involved in this
litigation), either support or do not oppose centralization in the
Southern District of New York. Lastly, plaintiffs in a potential
fag-along action in the Southern District of Ohio have filed an
interested party brief in which they do not oppose centralization
but urge selection of the Southern District of Ohio as transferee
forum.
On the basis of the papers filed and the hearing held, the
Panel finds that these actions involve common questions of fact
and that centralization under Section 1407 in the Southern
District of New York will best serve the convenience of the
parties and wltnesses and promote the just and efficlent conduct
of the litigation. All the actions before the Panel are brought
by one or more persons who purchased through broker dealers
identical or substantially similar annuities 1ssued by insurance
companies controlled by Baldwin-Unlited Corporation. The
plaintiffs in the actions, many of which are brought as class
actions, allege fraud and/or violation of federal and state
securities laws in connection with the sale of the annuities.
Centralization under Section 1407 1s thus necessary in order to
eliminate duplicative discovery, prevent lnconsistent pretrial
rulings, and conserve the resources of the parties, their counsel
and the judiciary.
The Tennessee plaintiffs, in opposing transfer, argue that
their actions do not involve sufficiently common questions of fact
with the other actions in this docket. There 1s no merit in this
contention. The Tennessee actions share allegations with other
actlons in this docket that the type of annulties purchased by
plaintiffs were actually securities that had not been registered
as required by federal and state securities law, and that the
defendant broker dealer (which is also named in twelve other
actions) breached fiduciary duties, distributed false and
misleading sales material, and had knowledge but falled to
disclose material adverse informatlon concerning Baldwin-Unilited
and 1ts 1lnsurance subsldiarles. The Tennessee plaintiffs' main
concern appears to be that they would be burdened by costs and
delays associated with Section 1407 transfer. This fear is
unwarranted. Transfer under Section 1407 will have the salutary
effect of placing the Baldwin-United actions before a single Judge
who will be in the best position to determine the manner and
extent of coordination or consolidation of the pretrial
proceedings for the optimum conduct of all actions in the
litigation. See In re A.H. Robins, Inc. "Dalkon Shield" IUD
Products Liability Litigation, 406 F.Supp. 540, 542 (J.P.M.L.
1975). Since a Section 1407 transfer is for pretrial proceedings
only, there 1s usually no need for the parties and wltnesses to
travel to the transferee district for depositions or otherwise.

} Case MDL No. 581 Document 6 Filed 06/01/15 Page 3 of 5
-3-
See, e.g., Fed.R.Civ.P. 45(d)(2). Furthermore, the judicious use
of liaison counsel, lead counsel and steering committees will
eliminate the need for most counsel ever to travel to the
transferee district. See Manual for Complex Litigation, Part I,
§§ 1.90-1.93 (rev. ed. 1987). And it is most logical to assume
that prudent counsel will combine their forces and apportion the
workload in order to streamline the efforts of the parties and
witnesses, thelr counsel and the Judiciary, thereby effectuating
an overall savings of cost and a minimum of inconvenience to all
concerned. See In re Nissan Motor Corporation Antitrust
Litigation, 385 F.Supp.	1253, 1255 (FBT. Tt	i978y.
We conclude that the Southern District of New York is the most
approprlate transferee forum for this litigation. We note that:
1) the first-filed and most advanced actions are pending there; 2)
many of the parties, potential witnesses and relevant documents
are located in the Southern District of New York (where defendant
broker dealer firms have their principal offices and
headquarters); 3) plaintiffs in 23 of the 41 actions (including
plaintiffs in ten actions who reside outside New York) have
brought their actions in the Southern District of New York; 4)
counsel in the New York actions have established an informal
coordinating group; and 5) defendant broker dealer firms, the
Arkansas and Indiana insurance commissioners, and many plaintiffs
have retained New York counsel.
IT IS THEREFORE ORDERED that, pursuant to 28 U.S.C. §1407, the
actions listed on the following Schedule A and pending outside the
Southern District of New York be, and the same hereby are,
transferred to the Southern District of New York and, with the
consent of that court, assigned to the Honorable Charles L.
Brieant for coordinated or consolidated pretrial proceedings with
the actions pending in that district and listed on Schedule A.=
2/ At the request of the Honorable Joseph L. MeGlynn, Jr., and
the Honorable Marilyn H. Patel, our decisions regarding transfer
under Section 1407 of Golub v. Merrill Lynch, E.D. Pa., C.A. No.
83-4123, and Shay v. Merrill Lynch, N.D. Cal., C.A. No.
83-5894-MHP, respectively, are deferred until further notice.

Case MDL No. 581 Document6 Filed 06/01/15 Page	4 of 5
RE SCHEDULE A
MDL-581 -- In re Baldwin United Corporation Litigation
Southern District of Florida |
Irving Cohen v. E., PF. Hutton & Co.,
. ef oe Oe. =
Northern District of Illinois
Lewis Levin, et al. v. Prudential-Bache Securities Inc.,	L LJ Oe
Steven me et al. v. E. F. Hutton & Co., Inec.,	C.A. No. C7033
Leonard Brenner v. E. F. Hutton & Co., Inc.,
C.A, No. 83CTh21
Lillie Lavin v. Merrill Lynch Life Agency, Inc., et al.,
C.A. No. 83CT753
David Morris, et al. v. Thomson McKinnon Securities Inc.,
C.A. No. 83CT7257
Sam enya lie, et al. v. E. F. Hutton & Co., Inec.,	LJ LJ Oe.
Steven H. Grossman, et al. v. E. F., Hutton & Co. Inc.,
C.A. No. 83C8569
Robert M. Goodwin, M.D., et al. v. A. G. Edwards & Sons Inc.,
C.A. No. 8307258
District of Maine
David H., Wellman, et al. v. E. F. Hutton & Co., Inc.,
C.A. No. 83-0358
District of Minnesota
Kenneth Tomnitz v. Merrill Lynch & Co., Inc., et al.,
C.A. QO. - 3-1027
District of New Hampshire
Dennis P. Attalla v. E. F. Hutton & Co., Inec.,
C.A. No. 83-776 oo a
| a Western District of Pennsylvania
S St Michaels v. Prudential-Bache Securities, Inc.,	. . O. -
Jerome W. Eichelsbacher v. Shearson/American Express Inc.,C.A. No. -2600
Elizabeth Chupko, et al. v. Paine Webber Jackson &
Curtis, Inc., C.A. No. 83-2

Case MDL No. 581 Document 6 Filed 06/01/15 Page 5 of 5
Eastern District of Tennessee
Lyle A. Graves, et al. v. Merrill Lynch & Co., Inc., et al.,
C.A. No. 3-570
Lloyd R. Greenwood, et al. v. Merrill Lynch & Co., Inc., et al.,
C.A. No. 3-593
Southern District of New York
Robert R. Moore v. E. F. Hutton Group Inc., et al.,
C.A. No. 83 Civ. 7197
Richard Meyers, et al. v. E. F. Hutton Co., Inc.,
C.A. No. 83 Civ. 8085
Charles B. Scarborough, et al. v. E. F. Hutton & Co., Inc.,
C.A. No. 83 Civ. 753%
Harry Factor v. Merrill Lynch & Co., Inc., et al.,
C.A. No. 83 Civ. 7009
John F. Terrill v. Merrill Lynch & Co., Inc., et al.,
C.A. No. 83 Civ. 7063
Douglas M. Mann v. Merrill Lynch & Co., Inc., et al.,
C.A. No. 83 Civ. 7233
Willa June Morgan v. Merrill Lynch & Co., Inc., et al.,
C.A. No. 683 Civ. T7092
Martin A. Burton v. Merrill Lynch & Co., Inc., et al.,
C.A. No. 83 Civ. 7081
Frederick J. Oberst v. Merrill Lynch & Co., Inc., et al.,
C.A. No. 83 Civ. 7360
Jean and Louis Somberg Vv. Prudential Bache Securities, Inc.,	C.A. No. 83 Civ. 735
Jean Maier v. Prudential-Bache Investment, Inec.,
C.A. No. 83 Civ. 7602
Bernice V. Abrams v. Thomson McKinnon Securities Inec.,
C.A. No. 83 Civ. 7359
Nils Ostin, et al. v. Oppenheimer & Co., Inc., et al.,
C.A. No. 83 Civ. 75
Revella Price v. Merrill Lynch & Co., Inc., et al.,
C.A. No. 83 Civ. 6565
Florence Silver v. Merrill Lynch & Co., et al.,
C.A. No. 83 Civ. 8866
Harry Olson v. Thomson McKinnon Securities, Inc.,
C.A. No. 83 Civ. 7
Sonia Sokoloff wv. Janney Montgomery Scott Inc., et al.,
C.A. No. 83 Civ. 808%
Richard J. and Patricia A. Boyle v. Prudential-Bache Securities,
Inc., C.A. No. 83 Civ
Hambleton Shepperd v. Smith Barney Harris Upham, Inc., et al.,
C.A. No. 83 Civ. BATH
Vincent Ertl v. Paine, Webber, Jackson & Curtis, Inc.,
C.A. No. 83 Civ. 5085
Thomas G. Phillips, III v. Kidder, Peabody & Co., Inc., et al.,
C.A. No. 83 Civ. 75
Alfred Linton v. Shearson/American Express, Inc.,
C.A. No. 83 Civ. B8hT76
Philip Rhodes, Jr., et al. v. E. F, Hutton Group, Inc., et al.,
C.A. No. 83 Civ. 9001