In re Antibiotic Drugs, 10.

• Decision Date: 30 January 1970
• Docket Number: No. 10.,10.
• Citation: 309 F. Supp. 155
• Parties: In re Multidistrict Civil Antitrust Actions Involving ANTIBIOTIC DRUGS. United States v. Charles Pfizer, et al., D. D.C., Civil Action No. 1966-69.
• Court: Judicial Panel on Multidistrict Litigation

309 F. Supp. 155

In re Multidistrict Civil Antitrust Actions Involving ANTIBIOTIC DRUGS United States v. Charles Pfizer, et al., D. D.C., Civil Action No. 1966-69.

No. 10.

Judicial Panel on Multidistrict Litigation.

January 30, 1970.

Before ALFRED P. MURRAH, Chairman, and JOHN MINOR WISDOM, EDWARD WEINFELD, EDWIN A. ROBSON, WILLIAM H. BECKER and JOSEPH S. LORD, III, Judges of the Panel.

OPINION AND ORDER

PER CURIAM.

On July 15, 1969 the United States filed a three count civil action in the United States District Court for the District of Columbia against the same seven drug companies¹ that are defendants in more than 125 private treble damage antitrust actions originally filed in or transferred to the Southern District of New York for coordinated or consolidated pretrial proceedings under 28 U.S.C. Section 1407. All defendants have joined in a motion to transfer this action to the Southern District of New York under Section 1407. The Government vigorously opposes the transfer of this action to the Southern District of New York. A hearing was held in Philadelphia on December 8, 1969 to consider the transfer and all parties in this multidistrict litigation were notified.

Although combined in a single complaint, each of the three counts states a separate cause of action, requests different relief and involves different defendants. We have therefore separately considered the possible transfer of each count or claim for relief.

Count I names Pfizer as the sole defendant and seeks cancellation of Pfizer's tetracycline patent "on the grounds that the patent was procured by fraud in that Pfizer, in the course of prosecuting its patent application, made false and misleading statements to, and withheld material information from, the Patent Office but for which conduct no patent would have issued." Counsel for the Government stresses the uniqueness of the relief requested in Count I while counsel for Pfizer stresses the fact that most of the private actions also allege "fraud on the Patent Office" as one of the offenses committed by the defendants.² Of course, the applicability of different legal principles will not prevent the transfer of an action under section 1407 if the requisite common questions of fact exist. In the Matter of Westec Corporation, 307 F.Supp. 559 (J.P.M.L.1969).

But conceding the existence of some common questions of fact with respect to "fraud on the Patent Office" claims, it does not appear that any additional discovery will be required in connection with Count I.³ We are convinced that the just and efficient conduct of all of the civil actions involved in this multidistrict litigation will be best served by severing the patent cancellation claim (Count I) and leaving it in the United States District Court for the District of Columbia.

The remainder of this action (Count II and Count III) is brought by the Government "in its capacity as a direct purchaser of broad spectrum antibiotics * * * and as the party providing funds for the purchase of such products by various agencies under federally assisted programs and pursuant to various foreign aid programs."

Count II is denominated as a "common law action of deceit" and as such would not be subject to the four year statute of limitations applicable to Count III. Cf. United States v. Grinnell Corporation, 305 F.Supp. 285 (S.D.N.Y., October 20, 1969). Like Count III, it is an action for damages but, like Count I, it is based on a "fraud on the Patent Office" claim. As the majority of the private damage actions include substantially identical allegations, we are satisfied that Count II raises sufficient common questions of fact to justify its transfer.

Counsel for the Government emphasizes that Count III⁴ is based solely on the commercial exploitation of the tetracycline patent which was allegedly procured by fraud on the Patent Office. A comparison of the offenses charged under Count III (Government Complaint, pp. 35-39) to those contained in the majority of the private actions in this multidistrict litigation reveals the existence of numerous, complex common questions of fact.⁵ There can be little doubt that all discovery relating to these common questions of fact should be coordinated by a single court.

There is an additional reason for transferring...