In re Corrugated Container Antitrust Litigation, 310.

• Decision Date: 29 November 1977
• Docket Number: No. 310.,310.
• Citation: In re Corrugated Container Antitrust Litigation, 441 F.Supp. 921 (J.P.M.L. 1977)
• Parties: In re CORRUGATED CONTAINER ANTITRUST LITIGATION.
• Court: Judicial Panel on Multidistrict Litigation

441 F. Supp. 921

In re CORRUGATED CONTAINER ANTITRUST LITIGATION.

No. 310.

Judicial Panel on Multidistrict Litigation.

November 29, 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 presently consists of 37 actions pending in seven federal districts: seventeen in the Southern District of Texas; fourteen in the Northern District of Illinois; two in the Southern District of New York; and one each in the Northern District of Texas, the Northern District of California, the Central District of California and the District of Minnesota.

The complaints in these actions basically allege that from as early as 1960 until 1975the defendants and various co-conspirators have engaged in a nationwide conspiracy to fix, raise, maintain and stabilize the prices of corrugated containers in violation of Section 1 of the Sherman Act.With one exception, all the actions were filed as purported class actions.While there are some variations in the descriptions of the classes sought, all are national classes consisting of all, or some group of, corrugated container purchasers.The complaints name a total of 38 defendants, including twenty defendants that are named in all actions.

The complaints in this litigation generally describe "corrugated containers" as follows:

Corrugated containers are made from that category of paperboards referred to as corrugated board.It is made from light weight paperboard suitable for corrugating, principally semi-chemical, kraft, straw, or mix paper stock.Corrugated containers are made in a variety of styles according to the needs of the customer.

In December 1975, a federal grand jury in the Southern District of Texas began an antitrust investigation of the corrugated container industry.No indictments have been returned, and the grand jury's investigation apparently is continuing.

This litigation is before the Panel on the motion of eighteen defendants, including fourteen of the defendants common to all actions, for transfer pursuant to 28 U.S.C. § 1407 of the actions pending in districts other than the Southern District of Texas to that district for coordinated or consolidated pretrial proceedings with the actions pending there.All responding parties agree on or recognize the propriety of transfer.The only dispute among the parties concerns the transferee forum.¹Besides the Southern District of Texas, for all practical purposes, only the Northern District of Illinois has been suggested as an appropriate transferee forum.²

We find that these actions involve common questions of fact and that their transfer under Section 1407 to the Southern District of Texas will best serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation.

Fourteen of the 38 defendants in MDL-310 are also defendants in In re Folding Carton Antitrust Litigation, MDL-250, which is presently pending in the Northern District of Illinois.SeeIn re Folding Carton Antitrust Litigation,415 F.Supp. 384(Jud.Pan.Mult.Lit.1976).The complaints in that litigation basically describe "folding cartons" as:

Containers made principally from that category of paperboards referred to as bending box board.It is made from virgin and reworked cellulose fibers.The chief characteristic of bending board is its ability to be bent or folded without breaking or serious damage at the crease lines which form the limits of the sides or ends of the carton.

The similarity between the actions in MDL-310 and the actions in MDL-250 is a subject of considerable dispute among some of the parties in MDL-310.

The parties favoring transfer to the Northern District of Illinois argue that MDL-310 and MDL-250 may be closely related, at least in part because mill produced paperboard allegedly is the basic ingredient for both corrugated containers and folding cartons.These parties also assert that discovery to date in MDL-250 demonstrates that costs, prices and production of corrugated containers and folding cartons are somewhat related, and that there are common sales and production personnel in both segments of the paperboard industry.Moreover, these parties point out, document depositories in MDL-250 have been established in Chicago and substantial discovery has been completed in that litigation.Access to the hundreds of thousands of documents presently on file in the folding carton document depositories, many of which relate to economic, accounting and marketing data of the fourteen defendants common to both MDL-310 and MDL-250, clearly will be of substantial value to all plaintiffs who have filed corrugated container actions, these parties maintain.Thus, these parties assert that transfer of MDL-310 to the Northern District of Illinois will best permit coordination between MDL-250 and MDL-310 and best allow plaintiffs to ascertain the extent of conspiratorial activity in the paperboard industry.

In addition, these parties argue that the Northern District of Illinois is the most appropriate transferee forum for MDL-310 because: (1) The headquarters of the Fibre Box Association, the trade association for the corrugated container industry and, according to some of the complaints in this litigation, a central clearinghouse for information used by the defendants and co-conspirators to effectuate the alleged conspiracy, is located in Chicago; (2) Twenty-three of the 38 defendants in MDL-310 have their principal places of business, where relevant witnesses and documents presumably will be found, in Illinois or the upper Midwest; (3) Many plaintiffs' attorneys in this litigation, including attorneys for the plaintiffs in all seventeen Southern District of Texas actions, already are involved in MDL-250 and could most efficiently make a single trip to Chicago in connection with pretrial proceedings in both litigations; and (4)the Panel has often acknowledged that Chicago's central location commends transfer to the Northern District of Illinois when a litigation is nationwide in scope.

These parties discount the importance of the pendency of the grand jury investigation in Houston.They stress that no indictment has yet been handed down and that the Panel has not always considered the pendency of related Government proceedings in a particular district to be the determinative factor in selecting a transferee forum.

Although either the Southern District of Texas or the Northern District of Illinois could be described as an appropriate transferee forum for MDL-310, on balance we conclude that the Southern District of Texas is preferable.The moving defendants have represented to the Panel that approximately 1.5 million documents have been produced to the grand jury in Houston and that over 100 witnesses have been called...