In re Concrete Pipe
| Decision Date | 23 May 1969 |
| Docket Number | Docket No. 12. |
| Citation | 302 F. Supp. 244 |
| Parties | In re "East of the Rockies" CONCRETE PIPE Antitrust Cases. |
| Court | Judicial Panel on Multidistrict Litigation |
Before ALFRED P. MURRAH, Chairman, and JOHN MINOR WISDOM, WILLIAM H. BECKER, JOSEPH S. LORD, III, EDWIN A. ROBSON, STANLEY A. WEIGEL, and EDWARD WEINFELD, Judges of the Panel.
Certain plaintiffs and intervening plaintiffs, in civil treble damage antitrust actions pending in the United States District Courts for the Eastern District of Pennsylvania and the Southern District of New York, have moved for transfer under Section 1407, Title 28, U.S.C., to the Eastern District of Pennsylvania of the civil actions listed in the attached Schedule A. On the initiative of the Panel an order was issued to the parties to show cause why the civil actions listed in the attached Schedule B should not be transferred under Section 1407. The product involved in each of those actions is described generally as concrete pipe.
The filing of each of the affected actions followed the return in the District of New Jersey of two criminal indictments charging violations of the antitrust laws. These criminal actions, in that district, were given the numbers Cr. No. 9-66 and Cr. No. 10-66. (None of the affected civil actions were filed in the District of New Jersey.) The defendants in these criminal actions were convicted on pleas of nolo contendere.
Some of the plaintiffs in the affected civil actions are end-users of concrete pipe and some are competitors of one or more of the defendants.
The indictment in Cr. No. 9-66 described the defendants, their states of incorporation, principal place of business and short descriptive names as follows:
Principal
State of Place of Hereinafter
Name of Corporation Incorporation Business Referred to as
International Pipe and Delaware East Orange Interpace
Ceramics Corporation New Jersey
Lock Joint Pipe New Jersey East Orange Lock Joint
Company New Jersey
Kerr Concrete Pipe New Jersey Paterson Kerr
Company New Jersey
Martin Marietta Maryland New York Martin Marietta
Corporation New York
North Jersey Concrete New Jersey Irvington North Jersey
Pipe Co. Inc. New Jersey
Interpace is the successor to the concrete pipe business formerly carried on by Lock Joint. Martin Marietta is the successor to the concrete pipe business formerly carried on by the Martin Company, a Maryland corporation, and by American-Marietta, an Illinois corporation, which merged in October 1961 to form Martin Marietta Corporation.
The product "concrete pipe" was defined, in the indictment in Cr. No. 9-66, to mean non-pressure pipe constructed of concrete, either with or without metal components, to convey water or sewage. The metal components were defined, in the same indictment, to mean steel rods, wire and mesh used in the manufacture of concrete pipe. The indictment charges that cement and metal components account for 80% of the cost of raw materials used in the manufacture of concrete pipe; that the metal components are the most costly ingredients; that over 75% of the cement and metal components were produced outside of New Jersey. In this indictment the defendants and their predecessors are charged with an unlawful conspiracy in restraint of interstate trade and commerce (in violation of Section 1, Title 15, U.S.C.) beginning in August 1960, and continuing thereafter until at least April 1962. This indictment further charged the alleged conspirators, including other individuals not named as formal defendants, with the following unlawful acts:
In Cr. No. 10-66 only Interpace, Lock Joint and Martin Marietta were named as corporate defendants. The product involved in that indictment was "concrete pipe" defined as low pressure and non-pressure pipe (constructed of concrete and metal components, having rubber gaskets and steel ring joints) and low pressure concrete pipe having concrete joints and rubber gaskets. This "concrete pipe", the indictment charges, was used to convey water, primarily for drinking and irrigation purposes, and sewage for sanitation and similar purposes. The time period of the alleged conspiracy, charged in Cr. No. 10-66, began in 1955 and continued at least until 1962. The unlawful overt acts alleged to have been committed by the conspirators are similar to those alleged in Cr. No. 9-66, supra.
In Cr. No. 10-66 the territory, in which the alleged conspiracy was designed to be effective, was the "Eastern United States" defined as all states lying east of the Rocky Mountains (except Texas, Louisiana, and Mississippi), from which is derived the description in the title "East of the Rockies."1
The indictment in Cr. No. 10-66 further alleged that, during the period involved, Lock Joint (predecessor of Interpace) and Martin Marietta were the principal manufacturers of concrete pipe in the eastern United States; that Lock Joint then had plants in New Jersey, New York, Connecticut, Maryland, South Carolina, Florida, Michigan, Illinois, Missouri, Oklahoma, Kansas, Colorado, Wyoming and Ohio; that Martin Marietta then had plants for the manufacture of concrete pipe in the following states: Alabama, Colorado, Florida, Georgia, Illinois, Indiana, Kentucky, Maryland, Michigan, Missouri, New Jersey New York, Pennsylvania and Tennessee.
At the time the motion to transfer these cases under Section 1407 was filed there were more affected civil actions (13) filed in the Northern District of Illinois than in any other district; but there were far more plaintiffs in the 6 cases in the Eastern District of Pennsylvania.2 Nevertheless counsel for the plaintiffs in the Northern District of Illinois, and others, concede that the Eastern District of Pennsylvania is the logical transferee district. In view of the number of plaintiffs in the eastern United States, and the number of plaintiffs in the actions in the Eastern District of Pennsylvania, counsel for the plaintiffs in the Western District of Missouri agree that the Eastern District of Pennsylvania is the logical transferee district. And as stated hereinabove, counsel for the moving plaintiffs in actions in the Southern District of New York also agree that the Eastern District of Pennsylvania is the logical transferee district, if the actions are to be transferred elsewhere.
Before creation of this Panel, the Co-Ordinating Committee for Multiple Litigation, with concerned trial judges, conducted hearings at Philadelphia and Chicago, as a result of which preliminary coordinated discovery was recommended to explore the existence of the relation between the cases in the several districts. Under the orders of the Honorable John Morgan Davis, United States District Judge of the Eastern District of Pennsylvania, to whom all the cases in that district have been assigned, these recommendations have been implemented and discovery is current. In some of the other districts, this discovery has been wholly or partially accomplished.
In the affected civil actions in the Eastern District of Pennsylvania and in the Southern District of New York conflicting class action requests have been made. With one dissenting opinion a class action issue in the Southern District of New York has been determined adversely to the City of New York by interlocutory decision of the district court and of a Panel of the Second Circuit Court of Appeals, decided April 10, 1969, City of New York v. International Pipe and Ceramics Corp., 410 F.2d 295.
These actions involve many common questions of fact. All are based on the two criminal indictments in the District of New Jersey, one of which charged a conspiracy effective in most of the states and concerned districts east of the Rockies. The other indictment charged a conspiracy effective in the Northern District of New Jersey. It is true that different products are designated in the two indictments. But these differences do not render the proposed transfers improper. They may or may not affect the manner in which the transferee court conducts the pretrial proceedings. In re Plumbing Fixture Cases, Judicial Panel on Multidistrict Litigation, 295 F.Supp. 33.
The complaints in all the affected actions contain allegations similar to those in the indictments mentioned above. Although some of the complaints involve additional years and additional allegations not found in the indictments with respect to pressure pipe (said to be manufactured only by Interpace) and with respect to a violation of Section 2, Title 15, U.S.C., nevertheless the common conspiratorial questions of fact respecting price fixing, allocation of orders and collusive bidding, among others, remain.
Furthermore, in additional to these common conspiratorial questions of fact there are many more common questions of fact in the affected civil actions. The additional common questions of fact include, among others, the following:
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