552 F.2d 1088 (5th Cir. 1977), 76-1375, In re Nissan Motor Corp. Antitrust Litigation

Docket Nº:76-1375.
Citation:552 F.2d 1088
Party Name:In re NISSAN MOTOR CORPORATION ANTITRUST LITIGATION. Richard E. HITT, on behalf of himself and all others similarly situated, et al., Plaintiffs-Appellants, v. NISSAN MOTOR COMPANY, LTD., et al., Defendants-Appellees.
Case Date:May 25, 1977
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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552 F.2d 1088 (5th Cir. 1977)


Richard E. HITT, on behalf of himself and all others

similarly situated, et al., Plaintiffs-Appellants,


NISSAN MOTOR COMPANY, LTD., et al., Defendants-Appellees.

No. 76-1375.

United States Court of Appeals, Fifth Circuit

May 25, 1977

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Donald E. Scott, Chicago, Ill., Hammond E. Chaffetz, John P. Lynch, Reuben L. Hedlund, Chicago, Ill., John R. Hoehl, Miami, Fla., for defendants-appellees.

Granvil I. Specks, Chicago, Ill., Eugene Portman, St. Louis, Mo., Richard M. Kranzler, Denver, Colo., Joseph L. Alioto, Ralph Golub, San Francisco, Cal., Jerome S. Wald, Chicago, Ill., Norris L. O'Neill, Hartford, Conn., Morton S. Bunis, Newark, N. J., Zenon F. Myszkowski, Albuquerque, New Mexico, Bruce C. Waltzer, New Orleans, La., Henry H. Feikema, Minneapolis, Minn., for plaintiffs-appellants.

Appeal from the United States District Court for the Southern District of Florida.

Before COLEMAN, CLARK and TJOFLAT, Circuit Judges.

CLARK, Circuit Judge:

Plaintiffs represent the original retail purchasers of approximately 371,000 new Datsun motor vehicles from franchised Datsun dealers during the period 1966 through February 26, 1973, in the following states: California, Colorado, Connecticut, Illinois, Louisiana, Minnesota, Missouri, New Jersey, New Mexico, and Texas. As class representatives, they commenced their separate actions against the following defendants: every Datsun dealer (dealer defendants) located in each state, Nissan Motor Corporation in U.S.A. (Nissan U.S.A.), and its Japanese parent, Nissan Motor Company, Ltd. (Nissan Japan), alleging that defendants had combined and conspired to fix, maintain, or stabilize the retail prices at which new Datsun motor vehicles are sold in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1 (1970). 1 Plaintiffs appeal from two interlocutory orders of the district court: (1) A "class notice" order that requires Nissan U.S.A. to prepare and submit at its own expense a computer printout of the names and addresses of current, registered

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Datsun owners and that directs plaintiffs at their expense to mail an initial class notice to those persons in the computer printout and to provide for notice by publication for those class members who cannot be identified individually. (2) A "separate notice" order that refused to permit information concerning plaintiffs' proposed, partial settlement with the dealer defendants to be included in the initial class notice and directed plaintiffs to mail separate notice of the partial settlement to those class members who had not excluded themselves from the case after the expiration of 3 weeks from the date of mailing the initial class notice. We hold: (1) Appellate jurisdiction exists to review both orders. (2) Plaintiffs must extract, at their own expense, the names and last known addresses of the absentee class members from defendants' business records and mail notice of the action to each absentee class member. (3) The district court must devise an initial class notice that contains, in addition to that information set forth in rule 23(c)(2), objective, neutral information of plaintiffs' proposed partial settlement with the dealer defendants.

After the 10 statewide actions were transferred to the United States District Court for the Southern District of Florida for coordinated or consolidated pretrial proceedings pursuant to 28 U.S.C. § 1407 (1970), 2 the transferee district court certified statewide classes in each under Federal Rule Civil Procedure 23(b)(3). The district court then held a preliminary hearing to review plaintiffs' proposed settlement that released the California dealer defendants from all claims in exchange for a payment of $1,500 from each dealer defendant. During this hearing, the district court was advised that similar settlement offers had been made to nearly every dealer defendant in the other nine statewide actions and that the responses received as of that date were affirmative. Contingent upon the district court's preliminary approval of the proposed settlements, plaintiffs also submitted to the court a "combination notice" designed to inform absentee class members of the 10 classes of the district court

' § 23(b)(3) class certification and of the partial settlement to avoid the double expense to the class of sending out two notices.

Upon considering Nissan defendants' objections to plaintiffs' combination notice and the proposed settlements, the district court ruled that the initial class notice should not refer to the proposed, partial settlements but that after the expiration of 3 weeks from the date of mailing such notice, notice of the settlement was to be mailed to class members who had not opted out pursuant to the initial class notice. 3 Later, the district court conditionally approved the proposed settlements with the California dealer defendants. Substantially identical settlements with dealer defendants in the Colorado, Illinois, Louisiana, Minnesota, Missouri, New Jersey, and Texas actions were also subsequently preliminarily approved. The proceeds of these settlements, aggregating $315,000, are presently on deposit in trust accounts. 4

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After entry of the district court's "separate notice" order, plaintiffs moved that Nissan U.S.A. be ordered to supply a list of the names and addresses of the class members in the 10 states. This was to be compiled from Nissan U.S.A.'s Retail Delivery Report cards (RDR cards) received from its dealer defendants throughout the country. At a pretrial conference, plaintiffs advised the court that they would not search defendants' RDR cards nor would they bear the cost of Nissan U.S.A.'s search of the cards. Plaintiffs argued that rule 23(c)(2)'s "reasonable effort" due process requirement was a "two-way street" and that since the RDR cards were in the possession of Nissan U.S.A., it was obligated to conduct and bear the costs of the search. The district court was informed that Nissan U.S.A. had two sets of records relevant to plaintiffs' motion: the RDR cards and a current computer listing, compiled since 1971. The RDR cards, which number 1,700,000, record sales of new Datsun motor vehicles during 1966-1975, list a vehicle serial number and the name and address of each purchaser, and are indexed by Model type rather than by selling dealer or by state. The computer listing contains the names and addresses of current owners of Datsun motor vehicles and is updated when purchasers of used Datsuns inform Nissan U.S.A. of the change in ownership and when Nissan U.S.A. integrates state vehicle registration lists purchased from an independent data gathering company with their computer listing.

The district court ordered defendants, at their own expense, to prepare and submit a computer printout listing the names and addresses of current registered Datsun owners. Plaintiffs were ordered to mail individual notice of the action to those persons whose names appeared in the computer printout, to give notice by publication in 12 states to unidentified class members, 5 and to bear the costs of both types of notice. Plaintiffs subsequently filed a timely appeal from this order.

I. Appellate Jurisdiction

28 U.S.C. § 1291 (1970) vests this court with "jurisdiction of appeals from all final decisions of the district courts of the United States . . . ." While statutory exceptions to section 1291 exist, none of these exceptions apply here. 6 Implicit in entertaining any interlocutory order is the hazard that piecemeal appeals will burden the efficacious administration of justice and unnecessarily protract litigation, thus inconveniencing the parties with the costs and delay of separate appeals. In Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949), however, the United States Supreme Court defined the "collateral order" doctrine as an exception to section 1291's requirement of finality. This doctrine embraces "that small class (of interlocutory orders) which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 169-72, 94 S.Ct. 2140, 2148-50, 40 L.Ed.2d 732 (1974); Gillespie v. United States Steel Corp., 379 U.S. 148, 152-54, 85 S.Ct. 308, 311-12, 13 L.Ed.2d 199 (1964).

We recently noted, in Litton Systems, Inc. v. Southwestern Bell Telephone Co., 539 F.2d 418, 425 (5th Cir. 1976), that for an interlocutory order to fall within the Cohen exception to finality "(1) the substance of collateral orders must be independent and easily separable from the substance of other claims, (2) at least part of the question of collateralness is determined by the need to secure prompt review in

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order to protect important interests of any party, and (3) the finality issue is to be examined in light of practical, rather than narrowly technical, considerations." Quoting Diaz v. Southern Drilling Co., 427 F.2d 1118, 1123 (5th Cir.), cert. denied, 400 U.S. 878, 91 S.Ct. 118, 27 L.Ed.2d 115 (1970). We apply this test to the case at bar.

First, the class notice order is "separable from, and collateral to," the substantive claims at the marrow of this action. Ascertaining the propriety of the order will not require examining either the merits of plaintiffs' asserted antitrust claims or any possible defenses of the defendants. Eisen v. Carlisle & Jacquelin, 417 U.S. at 171-72, 94 S.Ct....

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