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ATLANTIC CITY ELEC. CO. v. I-T-E CIRCUIT BREAKER C

November 23, 1965

Atlantic City Electric Company, et al. plaintiff
v.
I-T-E Circuit Breaker Company defendant


Feinberg, D.J.


The opinion of the court was delivered by: FEINBERG

FEINBERG, D.J.:

In 1960, there were a series of antitrust indictments in Philadelphia against manufacturers of electrical equipment and certain of their employees. The indictments charged violations of the Sherman Act in twenty product lines of electrical equipment. With the exception of a few individuals, defendants all entered pleas of guilty or nolo contendere, which culminated in 1961 in judgments of convictions. Thereafter, over 1,900 civil antitrust suits were brought against the manufacturers by purchasers of electrical equipment in more than twenty product lines. In many of these cases there were claims by multiple plaintiffs for injuries sustained in more than one product line so that the number of separate antitrust claims totalled well over 25,000. The suits were filed in thirty-five districts.

 To cope with the enormous problems posed by this unprecedented mass of litigation, the Judicial Conference of the United States in 1961 created a special subcommittee of its standing committee on Pre-Trial Procedures and Practices. The new subcommittee has come to be known as the Co-ordinating Committee for Multiple Litigation of the United States District Courts ("Co-ordinating Committee"), and its members were appointed by Chief Justice Warren in January 1962. Since its inception, the Co-ordinating Committee has recommended courses of action to the individual district judges in dealing with the varied and complex problems raised by this litigation of national scope. *fn1" However, orders have been entered in each district only upon individual consideration by the respective district judges after according the parties immediately affected in the district an opportunity to be heard on each proposed order.

 The electrical equipment antitrust cases have, therefore, for almost four years been the subject of intensive national consideration by a large number of federal district judges. From a total of over 1,900 law suits with over 25,000 claims, there now remain in the courts approximately 645 law suits involving about 5,400 claims. *fn2" Eight trials have been commenced and five have gone to judgment. *fn3" Although the number of pending cases has diminished, the need continues for a national program to continue their processing to disposition by trial or settlement. As part of that program, the Co-ordinating Committee has recently recommended that wherever feasible and desirable all claims in eleven designated product lines be transferred for final pre-trial and trial to suggested transferee districts. In each of these product lines, extensive national discovery has been completed.

 Two motions have been brought in this court, pursuant to 28 U.S.C. § 1404, which are in accord with these recommendations. One seeks an order to transfer cases in the circuit breaker and power switchgear assembly product lines to the Northern District of Illinois. As of November 15, 1965, there were pending in this district nine cases in the former product line and twenty-two in the latter. *fn4" The other motion seeks an order transferring cases in seven other product lines to various transferee courts, as follows: insulators (nine), *fn5" power transformers (four) and network transformers (one) to the Northern District of California; hydroelectric generators (two) to the Western District of Washington; power switching equipment (sixteen) to the Eastern District of Missouri; distribution transformers (four) to the Eastern District of Pennsylvania; and low voltage distribution equipment (nine) to the Western District of Missouri. As of November 15, 1965, there were thus seventy-six cases pending in this district in these nine product lines. The Co-ordinating Committee also recommended that two other product lines (condensers and steam turbine generators) be transferred from other districts to this court. Therefore, the present motions do not suggest transfer from this district of any cases in these product lines, but it is expected that in the coming weeks such cases will be transferred by judges in other districts into this court. *fn6" As of November 10, 1965, orders transferring sixty-five cases had been entered in the Southern District of California, the District of Columbia, the Western District of Kentucky, the Eastern and Western Districts of Missouri, the Northern District of Illinois, the Eastern District of Pennsylvania, and the Southern and Western Districts of Texas, coinciding with recommendations of the Co-ordinating Committee. *fn7"

 There have been a number of hearings on the two motions under consideration. Both motions were originally brought on at the court's suggestion, but at one or more of the hearings various plaintiffs and defendants have either joined in the motions, affirmatively indicated that they have no objection to the proposed transfers, remained silent or made no appearance. Other defendants and a few plaintiffs have objected to some of the proposed transfers. There are at least twenty other plaintiffs or plaintiff groups and twenty defendants involved in these seventy-six cases. The positions of those who affirmatively object to the transfers are discussed below.

 The section under which these two motions are brought is 28 U.S.C. § 1404(a), which provides that:

 
For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.

 In considering the motions to transfer, there are some overall considerations that appear generally applicable to each case and to all product lines. Defendants are still involved in cases in many districts and do business in a national market. Thus, defendant I-T-E Circuit Breaker Company ("ITE") as of October 7, 1965, still had pending against it some 365 cases involving about 1,090 claims originally brought in sixteen districts. *fn8" Many of the plaintiffs in the cases now under consideration are corporations whose primary operations are neither based in New York nor local in nature. There are obvious advantages to having the remaining cases in a particular product line centered in one locale before one judge. Final pre-trial and trial preparation can be done with a minimum of duplication of expense and effort before a court which has acquired, or will rapidly do so, detailed knowledge of all the problems raised in the litigation affecting that product line. Witnesses and parties with knowledge of the particular product line will not be required to undergo the demands of repetitive trials in various localities involving the same product. Consolidation of cases in the same product line for final pre-trial preparation (including local discovery) and for trial will be facilitated because all will be in the same court. Such consolidation is not at all unlikely since evidence of conspiracy and even of injury may well be similar in most, and perhaps all, of the remaining cases in any product line. In any event, concentration of cases in a product line will confine to one district the multitude of procedural and substantive problems that might otherwise be posed in various districts. Such concentration and consolidation should reduce the cost of trial preparation. Trial dates have either been fixed in the various proposed transferee districts for the respective product lines or will be set in the near future. *fn9" There is no substantial question raised as to whether the proposed transferee courts are prepared to handle the transferred cases expeditiously. Therefore, transfer of cases in accordance with the recommended program will facilitate the speed with which they are tried. If each transferring court, and particularly this transferring court, had to try cases in each of the nine product lines affected by the transfers out, as well as the two product lines scheduled for trial here, it is obvious that in cases of this magnitude, trials in all the product lines could not be completed with the same convenience and speed. See Continental Grain Co. v. Barge FBL-585, 364 U.S. 19, 26, 4 L. Ed. 2d 1540, 80 S. Ct. 1470 (1960). These general considerations are persuasive reasons why the proposed transfers are for the convenience of parties and witnesses and in the interest of justice.

 The few reported electrical equipment antitrust decisions dealing with this unique transfer problem have all allowed transfers and emphasized these considerations. Thus, in Kansas City Power & Light Co. v. I-T-E Circuit Breaker Co., 240 F. Supp. 121 (W.D. Mo. 1965), Judge Becker transferred two power switchgear assembly cases from the Western District of Missouri to the Northern District of Illinois and justified the transfer on the grounds, inter alia, that the convenience of witnesses would be served by a central location for the trial with possible consolidation, that the convenience of parties would be served by reducing the cost of separate preparation of cases in the same product line in various districts and by accessibility of documents in defendants' national document depository located in Chicago, that the interest of justice would be served by an earlier trial in Chicago and by avoiding repetitive trials, that there did not appear to be any problem of court congestion in the transferee districts and that the cases were "national controversies between established corporations not local in interests, operations, or abilities." 240 F. Supp. at 123. These transfers were left undisturbed by the Eighth Circuit in I-T-E Circuit Breaker Co. v. Becker, 343 F.2d 361 (8th Cir. 1965), in which the court stated (343 F.2d at 364):

 
The considerations prompting the transfer and the realities on which they rest, as set out in respondent's order, provide in our opinion such a basis for viewing convenience of parties and witnesses, in the interest of justice, as being served, in respect to the disposition of petitioner's cases and their relation to the general problem, as on their face to entitle us to regard the situation as not involving judicial arbitrariness and abuse of discretion.

 In I-T-E Circuit Breaker Co. v. Regan, 348 F.2d 403 (8th Cir. 1965), the same appellate court again dealt with an application to prevent transfer of a power switchgear assembly case to the Northern District of Illinois, this time from the Eastern District of Missouri. In dismissing a petition for a writ of mandamus, the court stated (348 F.2d at 405):

 
Whatever might be the limits of the questions entitled to consideration under § 1404(a) in a strictly single case in an individual federal court, having no relation to the administration or disposition of any other litigation pending in the federal judicial system, the situation here went beyond those bounds. The question of convenience of parties and witnesses under § 1404(a) is one which must be measured in terms of "the interest of justice" in relation to the situation which is involved and on the basis of proper judicial discretion exercised as to its whole.
 
We think that on the facts before it and on those of which it could properly take judicial notice, the District Court was entitled to find, as it did, that the convenience of witnesses, on the national issue of alleged conspiracy and its effect on prices charged by petitioner would be served by a central location for trial, together with the possibility of reducing the number of appearances required by these witnesses; that the convenience of the parties would be served by reducing the cost of separate preparation of power switchgear assembly cases and by better accessibility of documents in the National Documents Depository in Chicago for use in preparation and trial of the case; and that the interest of justice would be served by the ...

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