IN RE: Cuisinart Food Processor Antitrust Litigation

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. niniAL PANEL ON Eo
LTBI FIC T LITIGATION : Ni EA CL
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JR%	16 1981 Na -
| PATRICIA D. HOWARD EE oo
BEFORE THE JUDICIAL PANEL CLERK OF THE PANEL Lo .
ON
} MULTIDISTRICT LITIGATION }
IN RE CUISINART FOOD PROCESSOR ) DOCKET NO. 447
ANTITRUST LITIGATION ) -
OPINION AND ORDER SEE Co
BEFORE ANDREW A. CAFFREY, CHAIRMAN, AND ROY W. HARPER, CHARLES
R. WEINER, EDWARD S. NORTHROP, ROBERT H. SCHNACKE, FREDERICK A.
DAUGHERTY, AND SAM C. POINTER, JR., JUDGES OF THE PANEL. }
PER CURIAM
This litigation consists of eight actions’ pending :
in five districts: three in the District of Connecticut; 2’
two in the Northern District of Illinois; and one each in
the District of Massachusetts, the Southern District of
California and the Northern District of California.
Cuisinarts, Inc. (Cuisinarts), a defendant in six of
the actions, is a corporation organized and existing under
' the laws of the state of Connecticut, with its principal .
place of business in Greenwich, Connecticut. Cuisinarts
1 Two additional actions, Tillie Lee Louie, etc. v. -Cuisi-
' narts, Inc., N.D. California, C.A. No. C80-3929 and Robert
Reynolds d/b/a Douglas Garden Caterers, et al. v. Cuisinarts,
) Inc., et ai., N.D. California, C.A. No. C80-3930, were included
in the motion for transfer in this litigation. These actions
were remanded to California state court by order of the oo
Honorable Marilyn Hall Patel, filed on December 5, 1980. :
The question of transfer of these actions pursuant to Section
1407 is therefore moot.
; 2/ One of the Connecticut actions was originally filed
in the Eastern District of Virginia. On January 5, 1981,
] this action was transferred to the District of Connecticut
pursuant to 28 U.S.C. §1404(a) by the Honorable Oren R.
. Lewis.
bJ
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1 is the exclusive distributor in the United States of several | on Co E
, models of food processors>’ which it imports from France Co Lo
or Japan and sells under the "Cuisinart" trademark. Sub- |
> stantial quantities of food processors are sold by Cuisinarts Ls BN
4 to retail stores which in turn sell them to consumers.
5 Cuisinarts takes orders for its food processors from retail
6 stores primarily through its sales representatives located BE oo
7 throughout the United States; the food processors are then EE
8 shipped by Cuisinarts directly to the retail stores.
9 This litigation was spawned by the indictment of Cuisi- .
narts, filed on September 17, 1980, by a federal grand jury
Lo sitting in Hartford, Connecticut. The indictment charges
11 that, from at least 1974 until at least August, 1979, Cuisinarts “
12 and various unindicted co-conspirators conspired, in violation
13 of the Sherman Act, to fix, stabilize and maintain the retail
14 prices of food processors at the prices set by Cuisinarts.
15 The Government subsequently filed in the District of Connecticut
16 a civil action which tracks the allegations of the criminal
indictment. :
17 :
Each of the eight private actions before the Panel
18 was commenced within the past few months. All the private |
19 actions share certain basic similarities. First, the complaints
20 in all the private actions parallel the indictment and the
21 Government civil complaint insofar as they allege the existence
22 of a conspiracy to fix, stabilize and maintain the prices
23 of Cuisinart food processors. Second, plaintiffs in each
24
37 A foodprocessor is defined as "an electric appliance
55 for use in home kitchens, that combines in a single unitrequiring a minimum of accessories the functions, among
others, of shredding, chopping, slicing, grating and kneading
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C action seek treble damages and injunctive relief. Third, := all the private actions are brought as class actions.
3 Four of the actions (the three Connecticut actions
4 and the Massachusetts action) are brought as nationwide
consumer class actions. Each of these actions alleges a
° nationwide class of all persons who purchased Cuisinart
© food processors at retail. The claims in each complaint
7 rely on federal antitrust law. Cuisinarts is the sole defendant
8 in three of the four actions and is named as a defendant
9 along with two officers of Cuisinarts in the fourth action.
10 Little or no discovery has occurred in these actions.
11 The Southern District of California action is brought
, on behalf of a class of all private individuals who purchased
® Cuisinart food processors from retail outlets in California. |The complaint, which bases its claims exclusively on California
14 state antitrust laws, names as defendants Cuisinarts and
15 J.W. Robinson, Inc. (Robinson), a California retailer.
16 This action was commenced in California state court and
17 subsequently removed to federal court by Cuisinarts.%/ Little
18 or no discovery has occurred in this action.
19 The Northern District of California action is brought
on behalf of a nationwide class of retailers which plaintiff
2 alleges were prevented from selling Cuisinart food processors
21 by their refusal to participate in the price-fixing conspiracy. -
22 The following parties are named as defendants: 1) Cuisinarts;
23 |
® Z/	Plaintiff	filed a motion for remand to California statecourt, but this motion was denied from the bench by the
95 Honorable Gordon Thompson, Jr., on January 12, 1981.
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1 2) James D. Mah Associates (Mah), a California business =
2 entity and allegedly the sales representative of Cuisinarts :
3 in northern California; and 3) Hardwick Townsend, a California
4 corporation and allegedly the sales representative of Cuisinarts
5 in southern California. Plaintiff, a California retailer,
6 seeks to recover for itself and the purported class members
the lost profits occasioned by the alleged deprivation of
7 a business opportunity. The complaint bases its claims
8 on federal antitrust law. Little or no discovery has occurred
9 in this action. |
10 One of the Illinois actions (Bahr) is brought on behalf
11 of a class of all persons who purchased Cuisinart food pro-
12 cessors from Marshall Field & Co., Inc. (Marshall Field)
13 and/or retail stores owned, operated or controlled by Marshall
Field. Similarly, the other Illinois action (Ehrlich) is
14 brought on behalf of a class of all persons who purchased
15 Cuisinart food processors from Crate & Barrel, Inc. (Crate
16 & Barrel) and/or retail stores owned, operated or controlled
17 by Crate & Barrel. Marshall Field is the sole defendant
18 in Bahr and Crate & Barrel is the sole defendant in Ehrlich.
19 Cuisinarts is alleged to be a co-conspirator in both actions
20 but is not named as a defendant in either action. The claims
in each complaint rely on federal antitrust law. Plaintiffs
24 in these actions have served interrogatories and document ;
22 requests on defendants and a number of depositions have
23 been completed.
24
25
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C Cuisinarts has moved the Panel, pursuant to 28 U.S.C.	= §1407, to centralize these eight actions’ in the District
3 of Connecticut for coordinated or consolidated pretrial
4 proceedings. Plaintiffs in two of the nationwide consumer
class actions and Mah, a defendant in the Northern District
° of California action, support the motion. Plaintiffs in
© the remaining two nationwide consumer class actions support
7 centralization limited to the four nationwide consumer class
8 actions. The following parties oppose transfer of their
o respective actions: 1) plaintiffs in both California actions; |
10 2) all parties to both Illinois actions; and 3) Robinson,
11 a defendant in the Southern District of California action.
, If the Panel determines, however, that Section 1407 proceedings
© are appropriate in this docket, plaintiff in the Northern |District of California action and Robinson favor selection
14 of a California transferee forum and the Illinois plaintiffs
15 favor selection of the Northern District of Illinois as
16 the transferee forum.
17 We find that these actions involve common questions
18 of fact and that transfer of the actions pending in districts
19 other than the District of Connecticut to that district
for coordinated or consolidated pretrial proceedings under
20 Section 1407 with the actions pending there will best serve
21 the convenience of the parties and witnesses and promote :
22 the just and efficient conduct of the litigation.
23
57 In	addition,	the Panel has been advised that four other
Cj related actions are now pending in federal district courts.	These four actions will be treated as potential tag-along
25 actions. See Rules 1, 9 and 10, R.P.J.P.M.L., 78 F.R.D.
561, 562, 567-69 (1978).
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1 Opponents to transfer argue that the Illinois actions BE
2 and the Southern District of California action raise a multitude
3 of individual factual issues. These actions, opponents
| a contend, allege more limited conspiracies than the national
5 conspiracy alleged by plaintiffs in the four nationwide
consumer class actions. Discovery in the Illinois actions
© and the Southern District of California action, opponents
7 maintain, will focus on distinctly local factors and will
8 be much narrower in scope than discovery in the nationwide
9 consumer class actions. In addition, the parties to the :
10 Illinois actions and defendant Robinson in the Southern
11 District of California action assert that transfer to the
| 12 District of Connecticut would cause them extreme inconvenience.
The parties to the Illinois actions also contend that ’
+ no possibility exists that the classes alleged in the Illinois
14 actions will overlap with the nationwide or California consumer
15 classes because these latter classes, unlike the classes
16 alleged in the Illinois actions, are untenable inasmuch
17 as they are not limited to purchasers from a single retailer.
© 18 The Illinois parties argue that the nationwide and statewide
19 actions will require individualized proof of a myriad of
20 vertical conspiracies. Such proof will be so dominated
by non-common issues of fact that denial of class certification
21 in the nationwide and statewide actions is inevitable, the ]
22 Illinois parties contend.
23
24
25
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Plaintiff in the Northern District of California action
» emphasizes the unique aspects of its action. Plaintiff,
3 which represents a purported class of retailers allegedly
prevented from selling Cuisinart food processors by their
* refusal to participate in the conspiracy, argues that this
> class does not overlap with the classes alleged in any of
6 the other actions. Plaintiff contends that discovery in
7 the Northern District of California action will focus on
8 a number of issues, such as wholesale price structure, potential
9 sales of the boycotted retailers and the prices they would ‘
10 have charged, which are not presented in any of the other
actions.
11
We find these arguments unpersuasive. The complaints
12 in all the actions before	us contain substantially identical
@ allegations of a conspiracy to fix, stabilize and maintain
14 the prices of Cuisinart food processors. While we recognize
15 that several of the actions may involve some unique or localized
16 factual issues, a careful review of the entire record before
17 the Panel has persuaded us that all these actions share
18 numerous questions of fact concerning the existence vel
non of the alleged conspiracy and its scope, participants,
19 means of operation and effects. The national conspiracy
20 alleged in the complaints in five of the actions (the four
21 nationwide consumer class actions and the Northern District :
22 of California action) necessarily encompasses many aspects
23 of the somewhat more limited conspiracies alleged in the
é other three actions (the Illinois actions and the Southern25
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1 District of California action). Transfer under Section
2 1407 is thus necessary in order to prevent duplication of ®discovery, eliminate the possibility of conflicting pretrial
’ rulings, and conserve the efforts of the parties, witnesses
4 and the judiciary. See In re Motion Picture Licensing Antitrust
5 Litigation, 468 F. Supp. 837, 841-42 (J.P.M.L. 1979); In
6 re Cement and Concrete Antitrust Litigation, 465 F. Supp.
7 1299, 1300-01 (J.P.M.L. 1979).
8 An additional justification for transfer is the fact
9 that all of the actions before us, with the exception of ‘
o the Northern District of California action, have been brought
: on behalf of similar or overlapping classes of purchasers
| 1 of Cuisinart food processors. The Illinois parties' argument
12 concerning the untenability of nationwide and statewide
13 classes in this litigation, although premature, demonstrates @®
14 the difficulty of the class certification questions presented
15 and therefore merely amplifies the need to have a single
16 judge oversee the class action issues in these seven actions
17 to avoid duplicative efforts and inconsistent rulings in
this area. See In re Resource Exploration, Inc., Securities
18 Litigation, 483 F. Supp. 817, 821 (J.P.M.L. 1980).
19 ~The transferee judge, of course, has the authority
20 to schedule discovery and other pretrial proceedings on
21 any issues unique to a particular action or party to proceed
22 in separate tracks concurrently with the common pretrial
23 proceedings, thus enchancing the efficient conduct of all
24 aspects of this litigation. See In re Republic National- o	Realty Equities Securities Litigation, 382 F. Supp. 1403,
25
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oo 1405-06 (J.P.M.L. 1974). Moreover, the transferee judge2 has the power to provide that no party need participate
3 in pretrial proceedings unrelated to that party's interests.
4 See, e.g., Parts I and II, §§2.31, Manual for Complex Litigation
5 (rev. ed. 1977).
Although we are sensitive to the argument that Section
° 1407 transfer may cause certain parties to suffer some incon-
7 venience, we are nevertheless confident that prudent counsel
8 in all actions, under the guidance of the transferee judge,
9 can apportion their workload and otherwise combine forces |
10 to effectuate a significant overall savings of cost and
| 11 a minimum of inconvenience to all concerned with the pretrial
12 activities. See, e.g., In re Motion Picture Licensing Antitrust
C Litigation, supra, 468 F. Supp. at 842; Manual for Complex> Litigation, supra, at Part I, §§1.90-1.93. We note that
14 witnesses will be deposed in proximity to where they reside.
15 See Fed.R.Civ.P. 45(d)(2).
16 The District of Connecticut is clearly the most appropriate
17 transferee district for this docket. Three of the eight
18 actions before us are already pending there. The corporate
19 offices of Cuisinarts are located in Greenwich, Connecticut,
20 and thus many key witnesses and relevant documents are likely
to be found in the District of Connecticut. See In re LTV
21 Corp. Securities Litigation, 470 F. Supp. 859, 862 (J.P.M.L.
22 1979). In addition, the documents and transcripts of testimony
23 on which the grand jury relied in returning its indictment
é: are likely to be sought by the litigants in the eight actions25
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1 presently before us, and those materials are located in -
2 the District of Connecticut. Furthermore, the United States >
3 Supreme Court, in Douglas 0il Company v. Petrol Stops Northwest,
4 441 U.S. 211, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979), has
c required, with respect to access to grand jury materials
in related antitrust actions, coordination between the court
® presiding over the grand jury proceedings and the court
7 presiding over the related antitrust actions. This coordination
8 can more easily be accomplished by selecting as transferee
9 district the same district in which the grand jury sat.
10 See In re California Armored Car Antitrust Litigation, 476
11 ° F. Supp. 452, 454 (J.P.M.L. 1979).
12 IT IS THEREFORE ORDERED that, pursuant to 28 U.S.C.
§1407, the actions listed on the following Schedule A and
13 pending in districts other than the District of Connecticut
14 be, and the same hereby are, transferred to the District
15 of Connecticut and, with the consent of that court, assigned
16 to the Honorable Jose A. Cabranes for coordinated or consoli-
17 dated pretrial proceedings with the actions listed on Schedule
18 A and pending in that district.
19
20
21
22
23
24
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® SCHEDULE A
Docket No. 447 =-- In re Cuisinart Food Processor Antitrust Litigation
DISTRICT OF CONNECTICUT |
Fred Cohn, et al. v. Cuisinarts, Inc., Civil Action
et al. No. B80-444
Joan Sacarob, et al. v. Cuisinarts, Inc. Civil Action
No. H81-25
Frederic Blum v. Cuisinarts, Inc. civil Action
No. H89-610
NORTHERN DISTRICT OF CALIFORNIA
Basic Living Products, Inc., etc. Vv. Civil Action
Cuisinarts, Inc. No. C80~3781-ACW
SOUTHERN DISTRICT OF CALIFORNIA
C Belle Linda Gayer, etc. v. Cuisinarts, Civil Action	Inc., et al. No. 80-1675-GT(M)
NORTHERN DISTRICT OF ILLINOIS
: Janet Webber Bahr, etc. v. Marshall Civil Action
Field & Co., Inc. No. 80C5227
Gloria Ehrlich, etc. v. Crate & Barrel, civil Action
Inc. No. 80¢5228 )
" DISTRICT OF MASSACHUSETTS
Renee Logan v. Cuisinarts, Inc. - Civil ActionNo. 80-2257-S :