In re Armored Car Antitrust Litigation

• Decision Date: 18 April 1979
• Docket Number: Civ. A. No. 78-139A.
• Citation: In re Armored Car Antitrust Litigation, 472 F.Supp. 1357 (N.D. Ga. 1979)
• Parties: In re ARMORED CAR ANTITRUST LITIGATION.
• Court: U.S. District Court — Northern District of Georgia

472 F. Supp. 1357

In re ARMORED CAR ANTITRUST LITIGATION.

Civ. A. No. 78-139A.

United States District Court, N. D. Georgia, Atlanta Division.

April 18, 1979.

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William L. Harper, U. S. Atty., John T. Orr, Jr., Atty., U. S. Dept. of Justice, Antitrust Div., Atlanta, Ga., for United States.

Baxter L. Davis, Davis, Matthews & Quigley, Atlanta, Ga., for Food Fair Stores, Raley's Corp., L.D.C., Inc. and Liberty Coin Shop.

Harold E. Kohn, Dianne M. Nast, Kohn, Savett, Marion & Graf, P. C., Philadelphia, Pa., for Food Fair Stores and Philadelphia Electric Co.

Emmet J. Bondurant, II, Trotter, Bondurant, Griffin, Miller & Hishon, Atlanta, Ga., Samuel W. Murphy, Jr., Donovan, Leisure, Newton & Irvine, New York City, Lewis A. Noonberg, Piper & Marbury, Baltimore, Md., for Brink's, Inc.

D. R. Cumming, Jr., Sutherland, Asbill & Brennan, Atlanta, Ga., William E. Willis, Sullivan & Cromwell, New York City, John Henry Lewin, Jr., Venable, Baetjer & Howard, Baltimore, Md., for Wells Fargo Armored Service Corp.

Elwood S. Kendrick and Nancy Miller Bennett, Kendrick, Netter & Bennett, Los Angeles, Cal., J. J. Brandlin, Brandlin & McAllister, Los Angeles, Cal., for Raley's Inc.

John E. Burke, Richard J. Rappaport, Ross, Hardies, O'Keefe, Babcock & Parsons, Chicago, Ill., for L.D.C., Inc. and People Gas, Light & Coke Co.

John C. Staton, Jr., Curtis L. Frisbie, Jr., King & Spalding, Atlanta, Ga., Dennis G. McInerney, Cahill, Gordon & Reindel, New York City, for Purolator, Inc.

John M. Sikes, Jr., Jay I. Solomon, Zusmann, Sikes, Pritchard & Cohen, Atlanta, Ga., David Berger and H. Laddie Montague, Jr., Berger & Montague, Philadelphia, Pa., Milton J. Wallace, Wallace & Breslow, Miami, Fla., Seymour Kurland and Judah I. Labovitz, Wolf, Block, Schorr & Solis-Cohen, Philadelphia, Pa., for Biscayne Bank.

Howard A. Specter, Michael D. Buchwach, Pittsburgh, Pa., for Liberty Coin Shop.

Litman, Litman, Harris & Specter, P. A., Pittsburgh, Pa., for Liberty Coin Shop, Kleinman, Steinberg & Lapuk and Specks & Goldberg, Ltd.

Eugene F. McShane, Paul L. Binder, Asst. Attys.Gen., Antitrust Section, Columbus, Ohio, for the State of Ohio.

Patricia A. Cutler, Deputy Atty. Gen., San Francisco, Cal., for State of California.

David B. Goldstein, Asst. Atty. Gen., Antitrust Section, Economic Protection Div., Phoenix, Ariz., for the State of Arizona.

Howard F. Naughton, Jr., Exxon Company, U. S. A., Houston, Tex., for Exxon & Esso.

Peyton S. Hawes, Jr., Robert S. Jones, Cofer, Beauchamp & Hawes, Atlanta, Ga., for Atlantic Richfield Co.

Jack L. Ratzkin, Federated Department Stores, Cincinnati, Ohio as member of class.

John E. Grasberger, Pittsburgh, Pa., David W. Porter, Morris, O'Brien, Manning & Brown, Atlanta, Ga., Granvil I. Specks, Chicago, Ill., for Kleinman, Steinberg & Lapuk and Specks & Goldberg, Ltd.

Specks & Goldberg, Ltd., Chicago, Ill., pro se and for Kleinman, Steinberg & Lapuk.

Guido Saveri, Saveri & Saveri, San Francisco, Cal., for Saveri & Saveri.

Theodore W. Flowers, Francis P. Devine, III, Ronald J. Restrepo, White & Williams, Philadelphia, Pa., for Central Penn Natl. Bank.

William J. Scott, Atty. Gen., State of Illinois, John E. Noel and Lee H. Weiner, Asst. Attys.Gen., Chicago, Ill., for State of Illinois.

Arnold Levin, Adler, Barish, Daniels, Levin & Creskoff, Philadelphia, Pa., Fred W. Phelps, Topeka, Kan., for Weston L. Sampson.

Bernard M. Gross, Warren Rubin, Philadelphia, Pa., for Sunshine Stores, Inc.

David I. Shapiro, Dickstein, Shapiro & Morin, Washington, D. C., for Sunnydale Farms, State of Connecticut, Commonwealth of Massachusetts and Hillmans, Inc.

Kleinman, Steinberg & Lapuk, Marvin H. Lapuk, Daniel E. Kleinman, Hartford, Conn., for State of Connecticut.

Joseph M. Wells, Philip B. Hill, Chicago, Ill., for Peoples Gas, Light & Coke Co.

John D. Ashcroft, Atty. Gen., Roger Bern, Walter O. Theiss and Nanette Laughrey, Asst. Attys.Gen., Jefferson City, Mo., for State of Missouri.

Stephen D. Susman and Terrell W. Oxford, Mandell & Wright, Houston, Tex., for Brazosport Bank of Texas.

Francis Bill Burch, Atty. Gen., Timothy J. Shearer, Asst. Atty. Gen., Baltimore, Md., for State of Maryland.

ORDER

RICHARD C. FREEMAN, District Judge.

This multidistrict antitrust class action is presently before the court on plaintiffs' motion seeking approval of a proposed settlement of the litigation, Rule 23(e), Fed.R. Civ.P. Attendant to this evaluation, the State of California, a class member objecting to the settlement proposal, has moved to reopen discovery on the issue of damages and has requested the court's appointment of an expert to aid resolution of conflicting economic opinion evidence.Additionally, in the event that settlement is approved, plaintiffs' counsel have filed a joint petition for recovery of fees and expenses.Also if the settlement were approved, the court would schedule preparation, briefing, and argument of a plan of distribution of the settlement fund.As preliminaries to our review and evaluation of the settlement, the court will offer: (1) a brief recapitulation of the proceedings to date; and (2) a short description of the affected industry.

I.FACTUAL AND PROCEDURAL BACKGROUND

On June 21, 1977, a federal grand jury sitting in the Northern District of Georgia returned indictments charging two corporations, Brink's, Inc. and Wells Fargo Armored Car Service Corp. and six corporate officers, with violation of Section 1 of the Sherman Act,15 U.S.C. § 1.United States v. Brink's, Inc., et al., Cr.No. 77-207A(N.D.Ga.);United States v. Edgar A. Jones, et al., Cr.No. 77-208A(N.D.Ga.).In particular, the indictments charged the defendants with combining and conspiring during a period from early 1968 through August 1975 in order to allocate customers and to rig bids and price quotations.These violations, it was alleged, had the effect of restraining trade and artificially inflating prices of armored car services.On April 21, 1978, the defendants' pleas of nolo contendere to the charges contained in the two indictments were accepted and approved.DefendantWells Fargo appealed, but the Fifth Circuit affirmed the judgment, United States v. Wells Fargo Armored Car Service Corp.,587 F.2d 782(5th Cir.1979).

On June 21, 1977, simultaneous with the return of the indictments, the Government filed a civil enforcement action against the two corporate defendants and thereby sought to enjoin defendants' continuing or future violations of the Sherman Act, United States v. Brink's, Inc., et al., C.A.No. 77-1027A(N.D.Ga.).¹Predictably, within sixty days of the Government's initiation of the criminal and civil enforcement actions several private parties and states attorneys general filed treble damage actions, 15 U.S.C. § 15, against Brink's, Wells Fargo, and a third armored car service, Purolator Security, Inc.²The civil complaints filed in this and other district courts tracked the language of the criminal indictment and charged defendants with unlawful market allocation and bid-rigging practices from 1968 through 1975.Many of the plaintiffs sought relief on behalf of a statewide or nationwide class of the defendants' customers.

DefendantWells Fargo petitioned the Judicial Panel on Multidistrict Litigation for identification and transfer of all the civil actions to a single forum pursuant to 28 U.S.C. § 1407.On November 16, 1977, the Judicial Panel granted the Wells Fargo petition and transferred all then pending actions to this court for coordinated or consolidated discovery and pretrial purposes.In re Armored Car Antitrust Litigation,441 F.Supp. 921(Jud.Pan.Mult.Lit.1977).The instant litigation is the assembly of seventeen private treble damage actions either originally filed in or subsequently transferred to this district.³The Government's civil enforcement suit has proceeded at all times independent of the coordinated private actions.Sixteen of the seventeen private actions⁴ now seek the court's approval of their settlement.

Immediately before the First Principal Pretrial Conference in this litigation, seeManual for Complex Litigation, Part 1, § 1.00(rev. ed. 1977), the parties entered settlement negotiations.After approximately two months of negotiating and caucusing, a bargain was struck, with the defendants offering $11.8 million (representing contributions of $5,653,333 from Brink's, $2,346,667 from Wells Fargo, and $3,800,000 from Purolator Security) in exchange for civil peace for a ten-year period from the plaintiffs.

The court, on April 3, 1978, entered Settlement OrderNo. 1 which tentatively approved the settlors' proposal, conditionally certified the class of claimants, and formally authorized notification of the class.The conditional class for settlement⁵ was defined as:

All plaintiffs and all purchasers from any armored car company (not limited to Brink's, Incorporated, Wells Fargo Armored Service Corporation or Purolator Security, Inc.) or its affiliates of armored car and related services, including coin sorting and wrapping, preparation and distribution of payrolls and air and ground courier services, from January 1, 1968 to February 21, 1978(including banking institutions which have been furnished by others with armored car and said related services and which have legally recognizable claims against defendants based on the allegations and assertions in the consolidated actions which relate to alleged violations of Federal or State antitrust law in the provision of armored car or related services), excluding only the United States Government, its agencies, departments and instrumentalities, whether corporate or otherwise; the twelve Federal Reserve Banks, including their branches; and the defendants, their affiliates, parents, and subsidiaries.

Although the settlement period runs from January 1, 1968 to February 21, 1978, the parties acknowledge a statute of...