In re Cement and Concrete Antitrust Litigation, 296.

• Decision Date: 12 September 1977
• Docket Number: No. 296.,296.
• Citation: 437 F. Supp. 750
• Parties: In re CEMENT AND CONCRETE ANTITRUST LITIGATION.
• Court: Judicial Panel on Multidistrict Litigation

437 F. Supp. 750

In re CEMENT AND CONCRETE ANTITRUST LITIGATION.

No. 296.

Judicial Panel on Multidistrict Litigation.

September 12, 1977.

Before JOHN MINOR WISDOM, Chairman, and EDWARD WEINFELD, EDWIN A. ROBSON, JOSEPH S. LORD, III^*, STANLEY A. WEIGEL, ANDREW A. CAFFREY, and ROY W. HARPER^*, Judges of the Panel.

OPINION AND ORDER

PER CURIAM.

This litigation consists of 21 actions pending in two federal districts: twenty in the District of Arizona and one in the Central District of California.

On September 23, 1976, following a yearlong investigation, the Arizona Attorney General filed a complaint in the District of Arizona charging the Portland Cement Association (PCA) (a trade group composed of over 40 major cement producers), the Arizona Rock Products Association (ARPA) (a trade group whose members include Arizona grout, rock products and ready-mix concrete producers), five cement companies and thirteen ready-mix concrete companies with violations of Section 1 of the Sherman Act and Arizona's version of the Uniform Antitrust Act.¹. Essentially, PCA and the cement companies are alleged to have combined and conspired since 1958 to maintain, stabilize, and fix the price for cement sold within Arizona; and ARPA, one cement company, and the ready-mix concrete companies are alleged to have acted likewise since at least 1951 with respect to the sale of ready-mix concrete, grout and rock products within Arizona. Ready-mix concrete is differentiated from cement in that the former is a product which is the result of a mixture of cement with other materials such as sand, limestone and water.

Since the filing of the Arizona Attorney General's action, nineteen additional actions have been filed in the District of Arizona alleging combinations and conspiracies in the cement and ready-mix concrete industries. Seven of these actions have been brought against both cement and ready-mix concrete defendants. The allegations against the ready-mix concrete defendants in these seven actions are limited to charges of antitrust violations within Arizona. With respect to the charges brought against the cement defendants in these seven actions, five complaints allege nationwide violations and two complaints allege violations within Arizona. The remaining twelve actions have been brought against cement industry defendants only. Of these actions, seven allege nationwide violations, two allege violations within Arizona, one alleges violations within Arizona and California, one alleges violations within Colorado, and one alleges violations within Oregon. The PCA and five cement companies are each defendants in nineteen or more actions in this litigation, including the California action. Thirty-five other cement companies are each currently named as defendants in eleven or more actions, while ARPA and thirteen ready-mix companies are each defendants in five or more actions.

Seventeen of the actions pending in the District of Arizona have been filed as class actions. The various classes sought to be represented in these actions range from specific groupings such as building materials dealers, general building and paving contractors, or subcontractors engaged in the installation of floor and wall tile, to broad geographic classifications embracing purchasers within the State of Arizona, within the State of Colorado, within the State of Oregon, within the State of Texas, or within the entire United States.

The California action has been brought as a class action by the State of California on behalf of all political subdivisions and public agencies and districts within California which have built projects or structures constructed in whole or in part of cement. The defendants, PCA, National Association of Credit Management, Inc., and nine cement companies, are charged with violating Section 1 of the Sherman Act by engaging, since at least 1970, in a combination and conspiracy to fix, maintain and stabilize prices for cement sold within the State of California. The defendants are also charged with violations of the Cartwright Act², California's antitrust statute.

The State of California has moved the Panel for an order pursuant to 28 U.S.C. § 1407 transferring the California action to the District of Arizona for coordinated or consolidated pretrial proceedings with the actions pending there. Plaintiffs in the Arizona actions (the Arizona plaintiffs) support California's motion. Thirty-nine defendants agree that transfer is desirable but cross-move that the Northern District of Illinois, the Northern District of Texas, some other more centrally located forum, or the Central District of California, be selected as the transferee district. Three defendants oppose transfer and two defendants request that transfer be deferred pending the outcome of certain jurisdictional motions in the Arizona actions.

We find that these actions involve common questions of fact and that transfer of the California action to the District of Arizona pursuant to Section 1407 for coordinated or consolidated pretrial proceedings with the actions pending there will best serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation.

Some defendants urge that there are really three separate conspiracies (local Arizona concrete, local Arizona cement, and national cement) alleged in the actions before us. They contend that the national conspiracy actions bear no nexus to the Arizona Attorney General's action and others limited to claims arising from conduct within the State of Arizona. These defendants thus contend that there are insufficient common questions of fact to warrant centralization of the national conspiracy actions, including the California action, in the same district as the Arizona conspiracy actions.

We are persuaded, however, that all actions in this litigation belong in a single district for pretrial. Cement industry defendants in all actions are charged with agreeing upon delivered prices for cement, establishing uniform freight allowances and credit terms, and allocating territories and customers. The fact that the range of discovery may be broader in those actions alleging conspiracies in areas encompassing or outside the State of Arizona does not negate the substantial amount of discovery shared by all actions concerning the existence, scope and effect of conspiratorial activity in the cement industry. See In re Sugar Industry Antitrust Litigation, 395 F.Supp. 1271, 1273 (Jud.Pan.Mult.Lit.1975). At best, defendants' concern can be viewed as one involving the degree and manner of coordination of pretrial activities. And that is a matter to be addressed to the transferee judge, not the Panel. In re Equity Funding Corporation of America Securities Litigation, 375 F.Supp. 1378, 1384-85 (Jud.Pan.Mult.Lit.1974). Furthermore, since duplicating or overlapping classes are sought in most of the actions, transfer to a single district is desirable in order to avoid the possibility of inconsistent class determinations. See In re Sugar Industry Antitrust Litigation, supra, 395 F.Supp. at 1273.

Many defendants argue that the plaintiffs are misusing Section 1407. These defendants depict a scenario in which plaintiffs have agreed to file...