49 F.R.D. 17 (C.D.Cal. 1969), 69-1964, State of Utah v. American Pipe & Const. Co.

Docket Nº:69-1964.
Citation:49 F.R.D. 17, 13 Fed.R.Serv.2d 482
Opinion Judge:PENCE, District Judge.
Party Name:STATE OF UTAH, on behalf of itself and all others similarly situated, Plaintiffs, v. AMERICAN PIPE AND CONSTRUCTION COMPANY; United Concrete Pipe Corporation; Utah Concrete Pipe Company; W. R. White Company; United States Steel Corporation; Kaiser Steel Corporation; Smith-Scott, Inc.; U.S. Industries, Inc., Defendants.
Attorney:Vernon B. Romney, Atty. Gen. State of Utah, Mulliner, Prince & Mangum, Gerald R. Miller, Denis R. Morrill, Neslen & Mock, Kent Shearer, Salt Lake City, Utah, for plaintiffs. George W. Jansen, San Diego, Cal., Sullivan, Jones & Mitchell, James O. Sullivan, Wayne M. Pitluck, San Diego, Cal., for Am...
Case Date:December 17, 1969
Court:United States District Courts, 9th Circuit, Central District of California
 
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49 F.R.D. 17 (C.D.Cal. 1969)

13 Fed.R.Serv.2d 482

STATE OF UTAH, on behalf of itself and all others similarly situated, Plaintiffs,

v.

AMERICAN PIPE AND CONSTRUCTION COMPANY; United Concrete Pipe Corporation; Utah Concrete Pipe Company; W. R. White Company; United States Steel Corporation; Kaiser Steel Corporation; Smith-Scott, Inc.; U.S. Industries, Inc., Defendants.

No. 69-1964.

United States District Court, C. D. California.

December 17, 1969

The state of Utah brought Sherman Anti-Trust Act action against certain pipe manufacturing companies seeking treble damages and injunctive relief on its own behalf and in addition claimed to represent a class. The pipe companies made a motion for an order that the action not be maintained as a class action. The District Court, Pence, J., held that the state of Utah could not maintain class action, where number of class was not so numerous that joinder of all members was impracticable, and court could not conclude that class action would achieve economies of time, effort, and expense, or promote any more uniformity of decision than joinder method.

Motion granted.

Vernon B. Romney, Atty. Gen. State of Utah, Mulliner, Prince & Mangum, Gerald R. Miller, Denis R. Morrill, Neslen & Mock, Kent Shearer, Salt Lake City, Utah, for plaintiffs.

George W. Jansen, San Diego, Cal., Sullivan, Jones & Mitchell, James O. Sullivan, Wayne M. Pitluck, San Diego, Cal., for American Pipe & Construction Co.

Ryley, Carlock & Ralston, G. Read Carlock, Phoenix, Ariz., Olmstead, Stine & Campbell, Richard W. Campbell, Ogden, Utah, for W. R. White Co.

Thelen, Marrin, Johnson & Bridges, Gorden Johnson, San Francisco, Cal., Clyde, Mecham & Pratt, Edward W. Clyde, Salt Lake City, Utah, for Kaiser Steel Corp.

Paul, Hastings, Janofsky & Walker, Oliver F. Green, Jr., Los Angeles, Cal., Moyle & Moyle, Hardin A. Whitney, Jr., Salt Lake City, Utah, for U.S. Industries.

Gibson, Dunn & Crutcher, Robert E. Cooper, Los Angeles, Cal., Fabian & Clendenin, Peter W. Billings, Salt Lake

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City, Utah, for United Concrete Pipe Corp. and Smith-Scott, Inc.

VanCott, Bagley, Cornwall & McCarthy, Haldor T. Benso, Salt Lake City, Utah, O'Melveny & Myers Thomas J. Ready, Los Angeles, Cal., for Utah Concrete Pipe Co.

Dominic B. King, Law Department, United States Steel Corporation, Pittsburgh, Pa., Musick, Peeler & Garrett, John M. Robinson, Jesse R. O'Malley, Los Angeles, Cal., Parsons, Behle, Evans & Latimer, Calvin A. Behle, Salt Lake City, Utah, for United States Steel Corp.

DECISION ON DEFENDANTS' MOTION OPPOSING CLASS ACTION

PENCE, District Judge.

On May 13, 1969, the State of Utah filed this ‘ western pipe’ Sherman § 1 antitrust action against certain concrete and steel pipe manufacturing companies, seeking treble damages and injunctive relief on its own behalf and in addition, claimed to represent a class described as (1) ‘ those public bodies and agencies of state and local government in the State of Utah who are end users of pipe acquired from the defendants, co-conspirators and others' 1 and (2) those states in the Western Area which have not previously filed a similar action.2

Defendants have moved for an order that the action not be maintained as a class action.

Plaintiff denominated ‘ those states in the Western Area’ as being the states of ‘ Wyoming, Nevada and Idaho’, and includes along with them the public bodies and agencies of the states and local governments in those several states and Utah who are end users of pipe acquired from the defendants, etc. Appended to plaintiff's memorandum in support of its class action allegations is a list of what this court can only determine to be every incorporated whistle-stop, hamlet, village, town, city, county, and water and sewer improvement district in Utah, Nevada, Wyoming and Idaho. The several collections of whistle-stops, etc., total some 300 for Utah, 240 for Idaho, 270 for Wyoming, and 31 for Nevada.3 Plaintiff did not represent that each was actually an end user of pipe— plaintiff just made a list.

As indicated in the chronological history of the western pipe cases set forth in this court's decision of August 1, 1969, in Maricopa County v. American Pipe and Construction Co. et al., 303 F.Supp. 77 (D.Ariz.1969), the government's criminal complaint against some of the defendants named in the instant action was filed on March 10, 1964, and on June 23, 1964, the government's civil actions were started.

As this court held in Maricopa, the government's criminal and civil actions tolled the statute of limitations until May 24, 1969. Beginning in August 1964, Clayton § 4 treble damage antitrust actions were thereafter filed by the states of Hawaii, California, Oregon, Washington and Arizona against American Pipe and Construction Company, United Concrete Pipe Corp., U.S. Steel, Kaiser Steel, Smith-Scott Inc., and U.S. Industries, all defendants herein, as well as other defendants, charging exactly the same general antitrust conspiracies, etc., as set forth in the Utah complaint. In each of the complaints of the states of Hawaii, California, Oregon and Washington, and of the United States, as well as in three other of the 100 separate end user actions filed ‘ in the Western Area’, these actions were denominated ‘ class

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actions' under the old (pre 1966) Rule 23, F.R.Civ.P. This court, treating them as spurious class actions, permitted intervention by all aggrieved public bodies of those several states and gave ample time for joinder. The sum total of the actual parties joining in the class actions, in those four states, plus the state and other public bodies in Arizona, as well as the City of Las Vegas, Nevada, and other private end user actions, totaled some 350 plaintiffs. All of the parties involved in the ‘ class actions' have settled their claims and the actions have been dismissed. The United State Government has also settled its end user claims arising out of the ‘ western pipe’ conspiracy, as have all other but some one-half dozen late, late filing individual claimants.

Massive discovery, with depositions in depth of the knowledgeable employees of the major conspirators, together with centralized deposit of thousands of documents relative to the underlying alleged conspiracy, is long since ended. The publicity regarding the suits-covering interim rulings by this court over the past five years, published in CCH Trade Regulation Reports, BNA Law Week, and West's Federal Supplement, together with newspaper publicity anent filing of suits...

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