IN RE: West of the Rockies Concrete Pipes Antitrust Cases

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0 . 9p. :	. 2 ON : I . .
. JUDICIAL PANEL O “ CTE ER
MULTDISTRICT LTIGATICH RORY
THE JUDICIAL PANEL FILED Fon |
MULTIDISTRICT LITIGATION AUG 281 CNET
PATRICIA D. WILE SE
IN RE "WEST OF THE ROCKIES" CONCRETE ) QUERK
PIPE ANTITRUST CASES ) DOCKET NO. 25
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 QF THE PANEL
PER CURIAM
On June 4, 1969 the majority of the defendantsy’
in the State of Utah case filed a motion with the Panel
to transfer that case from the District of Utah to the
Central District of California for assignment to Judge
Martin Pence?’ for coordinated or consolidated pretrial pro-
ceedings under 28 U.S.C. §1407. After notice to all parties, |
a hearing was held in Denver on July 25, 1969 and all parties
* Judges Wisdom and Lord were unable to attend the hearing
in Denver, Colorado but with the consent of all parties repre-
sented at the hearing, they have participated in the decision
in this matter.
1/ Kaiser Steel Corporation, U.S. Industries, Inc., American
Pipe & Construction Co., Smith Scott Company, Inc., United Concrete
Pipe Corp., and United States Steel Corporation.
2/ Judge Pence is Chief Judge of the District of Hawaii and has :
previously been assigned by the Chief Judge of the Ninth Circuit
to various districts within that circuit and all West Coast Pipe
cases filed within the Ninth Circuit have been assigned to him. :

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» presented thelr arguments in support of, or in opposition to,
the proposed transfer.
The moving defendants make a strong argument in
support of their motion to transfer this case for coordinated
or consolidated pretrial proceedings. They first point out
that the West of the Rockies Pipe litigation involves more
than 100 actions and more than 350 plaintiffs. These cases,
originally filed in eight different district courts within
the Ninth Circuit, have all been assigned to Judge Pence and
he has actively supervised coordinated pretrial proceedings
with the result that the earlier cases have now been settled.
We thought that this litigation was at an end’
® but the actions listed on Schedule A were all filed
) within the past year. With the exception of the State of
Utah case these new cases will be automatically assigned to
Judge Pence and their discovery will be coordinated by him.
Judge Pence's familiarity with this litigation, the prior
discovery and the problems relating thereto, is unequalled
and we believe that the assignment of the State of Utah case
to him will clearly serve the convenience of parties and
witnesses and will promote the Just and efficient conduct
3/ See In reConcrete Pipe cases, 297 Fed. Supp. 1125 (Jud.
Pan.Mult.Lit. 1968)
@

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- 3 =
4
® of these cases.
Since Judge Martin Pence has been assigned to many
districts within the Ninth Circuit, coordinated or consolidated
pretrial proceedings in the State of Utah case could be
achieved by transferring that case to any of those districts.
We believe the Central District of California is the most
appropriate transferee court because orginal criminal pro-
ceedings were held there, substantial discovery and document
production has occurred there, the majority of the new cases
were filed there and many of the corporate defendants have
their principal place of business in the Los Angeles area.
Transfer of this case for coordinated or consolidated
® pretrial proceedings is strongly opposed by the two localdefendants - Utah Concrete Pipe Company and W. R. White Company2’
4/ The State of Utah case was brought as a class action on behalf
of "all other states in the Western Area . . . which have not pre-
viously filed a similar action including the states of Wyoming,
Nevada, and Idaho and (including) those public bodies and agencies
of state and local governments in said states who are end users
of pipe acquired from the defendants, co-conspirators and others."
The plaintiffs readily concede that Judge Pence is best able
to resolve the class action issue because of his personal know-
ledge of the individual and class actions already involved in this
litigation. Judge A. Sherman Christensen to whom the State of
Utah case was originally assigned has deferred action on the class
action request pending Panel decision on the instant motion and
we believe that the resolution of the class action dispute can
be best made by Judge Pence following transfer of this case to him.
Cf. In re Plumbing Fixture cases 298 Fed. Supp. 484(Jud.Pan.Mult.
Lit. 1968).
5/ They do not oppose transfer of the action provided that
the claims against them are severed and left in the District of
Utah. The plaintiff strongly opposes such a fragmentation of its
case.

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o he
The basis for their opposition 1s the assertion that they
have had minimal sales outside of the State of Utah and
were not named in any other civil action or in any of the
indictments. They conclude that there can be no questions
of fact common to their case and any of the other actilons.
This argument overlooks the fact that they and the other
defendants are charged with participating in a combination
and conspiracy to (1) submit collusive and rigged bids, (2) to
allocate and divide orders and (3) to refrain from competing -
not only within the State of Utah but within the entire Western
Area. The existence and nature of the alleged conspiracy and
the part these two defendants played in it are common questions
@ of paramount importance.
The local defendants also contend that the transfer of
the claims against them to a distant forum would impose an
unjustifiable financial burden on them. We are satisfied that
any additional burden will be offset by the savings from and
convenience of coordinated or consolidated pretrial proceedings
directed by the transferee judge. In re Antibiotic Drugs,
295 F. Supp. 1402, 1404 (Jud. Pan. Mult. Lit. 1968). The
transferee court may of course exercise its discretion in
scheduling pretrial proceedings in a manner which will protect
the legitimate interests of all defendants in the apportionment
of the cost of litigation. In re Concrete Pipe Litigation (East
| of the Rockies) ____ F. Supp. __ (Jud. Pan. Mult. Lit.,
\ May 23, 1969).

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® "5
In sum, 1t is clear that the transfer of this case to
the Central District of California and 1ts assignment to
Judge Martin Pencel’ for coordinated or consolidated pretrial
proceedings will serve the overall convenience of the parties
and witnesses in this litigation and will promote the just
and efficient conduct of these actions.
IT IS THEREFORE ORDERED that the State of Utah case
listed on Schedule A be and the same is hereby transferred to
the Central District of California and with the consent of
that court assigned to Judge Martin Pence.
6/ Judge Pence has expressed his willingness to accept
assignment of this case and the Central District of California
through its Chief Judge has consented to the assignment. This
consent has been filed with the clerk of the Panel.

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® SCHEDULE A
DISTRICT OF UTAH
1. State of Utah v. American Pipe & Civil Action
Construction Company, et al. No. C-177-69
CENTRAL DISTRICT OF CALIFORNIA
2. Hadley-Cherry, Inc. v. American Pipe Civil Action
& Construction Company, et al. No. 69-907
3. Volk-MclLain Communities, Inc. v. Civil Action
American Pipe & Construction No. 68-2058
Company, et al.
4. Crescenta Valley County Water Civil Action
District v. American Pipe & No. 69-951
Construction Company, et al.
5. ©Silerra Western Corporation, et al. Civil Action
v. American Pipe & Construction No. 69-1008
[ Company, et al.
6. Hurst Concrete Products, Inc. Vv. Civil Action
American Pipe and Construction No. 68-1625
Company, et al.
DISTRICT OF ARIZONA
ff. Maricopa County v. American Pipe & Civil Action
Construction Company, et al. No. 69-149-Phx