MEMORANDUM in Support re [12] MOTION for Transfer and Consolidation of Related Antitrust Actions Pursuant To 28 U.S.C. 1407 filed by ICS Corporation. (Barrette, Mark)
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Page 1 Case 1:04-cv-11583-GAO Document13 _ Filed 08/31/2004 Page 1 of8
BEFORE THE JUDICIAL PANEL ON
MULTIDISTRICT LITIGATION
In re:
MDL DOCKET NO. 1631
PUBLICATION PAPER ANTITRUST
LITIGATION
PLAINTIFF ICS CORPORATION'S
MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION
FOR TRANSFER AND CONSOLIDATION OF
RELATED ANTITRUST ACTIONS UNDER 28 U.S.C. § 1407
ICS Corporation (“Plaintiff”), plaintiff in 7CS Corporation v. International Paper,
et al., Case No. 3:04-CV-01303-SRU (“the ICS Action’) submits this Memorandum Of Law In
Support of its Motion for Transfer and Consolidation of Related Antitrust Actions Pursuant to 28
U.S.C. § 1407. For the reasons stated in Plaintiffs Motion and below, transfer and consolidation
of related Pubhcation Paper antitrust actions would serve the dual goals of justice and efficiency,
and the United States District Court for the District of Connecticut ts the most appropriate forum
for consolidation.
].4Page 2 Case 1:04-cv-11583-GAO Document13 Filed 08/31/2004 Page2of8
FACTS
On May 25, 2004, European Union antitrust authorities raided the facilities of
Defendants UPM-Kymmene Oy}, Stora Enso Oyj, Metsalitto Group Oyj and M-Real Oyj in
Fintand and Norske Skogindustner ASA in Norway. The raids were conducted in cooperation
with Canadian and United States antitrust authorities, as part of a joint investigation of a
suspected illegal cartel in the market for magazine paper. Officials also raided the European
headquarters of Defendant Sappi Limited, a South African producer of magazine paper.
Defendant UPM-Kymmene Oy] agreed to cooperate with Canadian and European Union
authorities in exchange for conditional immunity. The United States Department of Justice
announced a domestic investigation of International Paper Company on the same day.
Two weeks later, a class action complaint was filed in the United States District
Court for the District of Connecticut, alleging, inter alia, that Defendants conspired to fix the
price of publication paper in violation of Section 1 of the Sherman Act.’ Within the next three
months, sixteen similar complaints (the “Related Cases”) were filed in eight federal districts,
including eight filed in the District of Connecticut. See Exhibit A to Plaintiff 1CS Corporation’s
Motion for Transfer and Consolidation of Related Antitrust Actions Pursuant to 28 U.S.C. § (hereinafter “Exhibit A’). All of those complaints arise out of the same set of facts, assert
the same or similar legal theories and request the same or similar relief. In all of the Related
Cases, the District Court will be asked to determine, inter alia, the following common factual
issues:
a. Whether Defendants and their co-conspirators engaged in a combination
and conspiracy among themselves to fix, raise, maintain or stabilize
prices of Publication Paper sold in the United States;
' Gardella v. International Paper Co., et al., Case No. 3:04-CV-00935-SRU (D. Conn.) (filed
June 8, 2004) (hereinafter “Gardella” or “the Gardella action’).
~?-Page 3 Case 1:04-cv-11583-GAO Document13 _ Filed 08/31/2004 Page 3of8
b. Whether Defendants and their co-conspirators engaged in a combination
and conspiracy among themselves to allocate customers or markets for
Publication Paper sold in the United States;
Cc. The identity of the participants in the conspiracy;
d. The nature and character of the acts performed by Defendants and their
co-conspirators in furtherance of the conspiracy;
e. The duration of the conspiracy;
f. Whether the alleged conspiracy violated Section 1 of the Sherman Act;
and
g. The effect of Defendants’ conspiracy on the prices of Publication Paper.
While all of the Related Cases asseri the same or similar claims arising from the
same set of facts, the most procedurally advanced cases are, as discussed further herein, currently
pending in the District of Connecticut. The headquarters of the United States subsidiaries of
most of the international defendants are located in the District of Connecticut, which is also the
headquarters of the largest domestic defendant, International Paper Company.
Plaintiff respectfully submits that transfer and consolidation of the Related Cases
identified in Exhibit A is appropriate, and that the most appropriate Transferee District is the
District of Connecticut.
ARGUMENT
Plaintiff joins with plaintiffs in the first two filed cases, Gardella and Weiss,’ with
plaintiff Acorn/Parliament, Inc.,’ and with Defendants in supporting transfer and consolidation of
all Publication Paper cases in the District of Connecticut. Transfer and consolidation of these
* Weiss v. International Paper Co., et al., Case No. 3:04-CV-00974-SRU (filed June 15, 2004)
(hereinafter “Weiss” or “the Weiss action”),
* Acorn/Parliament Inc. v. International Paper Co., et al., Case No. 3:04-CV-01077-SRU (filed
July 1, 2004).
-3-Page 4 Case 1:04-cv-11583-GAO Document13_ Filed 08/31/2004 Page4of8
cases, which share “common questions of fact,” is warranted to “promote the just and efficient
conduct of such actions.” 28 U.S.C. § 1407(a). The most appropriate court for transfer is an
efficient forum whose location is convenient to the parties and witnesses. /d. The District of
Connecticut is that Transferee District in this case.
I. THE DISTRICT OF CONNECTICUT IS THE MOST APPROPRIATE FORUM
FOR TRANSFER OF THE RELATED CASES.
All parties who have submitted papers to the Panel in this matter agree that the
related Publication Paper antitrust cases should be coordinated to avoid duplicative proceedings
in different courts; the only outstanding question ts where.
Section 1407 provides for transfer to a single district “for the convenience of
parties and witnesses.” 28 U.S.C. § 1407. Plaintiff ICS Corporation respectfully submits that the
most appropriate district for transfer of the related cases is the United States District Court for
the District of Connecticut. Eight of the sixteen cases brought thus far are already pending in the
District of Connecticut, half of the cases filed and more than three times the number of cases
pending in any other venue. This fact weighs heavily in favor of transfer to the District of
Connecticut. See In re Parcel Tanker Shipping Servs. Antitrust Litig., 296 F. Supp. 2d 1370, (J.P.M.L. 2003) (where four of ten known related actions were filed in the District of
Connecticut, transfer to the District of Connecticut was appropriate); Jn re Carbon Black
Antitrust Litig., 277 F. Supp. 2d 1380, 1381 (J.P.M.L. 2003) (transfer to district where “the
majority of the actions are pending”); Jn re K-Dur Antitrust Litig., 176 F. Supp. 2d 1377, 1378
(J.P.M.L. 2001) (transfer to district where fourteen of thirty-two actions are pending).
Furthermore, the first-filed and furthest advanced case, namely the Gardella action, is pending in
front of Judge Underhill in the District of Connecticut. Motions to dismiss the Gardella action
are pending on behalf of Defendants Meadwestvaco Corp. (filed July 14, 2004), International
_4.Page 5 Case 1:04-cv-11583-GAO Document13_— Filed 08/31/2004 Page5of8
Paper Co. (filed July 15, 2004), and S.D. Warren Co. (filed July 19, 2004). Plaintiff Gardella has
filed oppositions to those motions (filed August 4, 2004, August 5, 2004 and August 9, 2004)
and has also filed a motion for class certification (filed August 9, 2004). In addition, motions to
dismiss have been filed by Defendants International Paper Co. (filed July 19, 2004) and S.D.
Warren Co. (filed July 30, 2004) in the Weiss action also pending in the District of Connecticut.
Oppositions to those motions to dismiss were filed on August 9, 2004 and August 13, 2004,
respectively, and a motion for class certification was filed in the Weiss action on August 13,, The advanced procedural posture of the Gardella and Weiss actions favors transfer to the
District of Connecticut. See, e.g., Jn re Wireless Telephone Federal Cost Recovery Fees Litig., F. Supp. 2d 1378, 1380 (J.P.M.L. 2003).
The District of Connecticut is also convenient to the largest number of parties and
witnesses, and the home of the vast majority of documents likely to be sought in discovery. The
largest United States Defendant, International Paper, is located there. All but one of the
European Defendants have a U.S. subsidiary in Connecticut, Massachusetts, or New York. Only
one Defendant has a primary place of business located in the Midwest, and only one Defendant
has a primary place of business located in the Pacific Northwest.
The Panel has previously granted transfer to the District of Connecticut in cases
with parallel circumstances. In a case involving a similar geographic dispersion of European and
United States defendants, the Panel recently held that “the District of Connecticut ... is a
geographically convenient location, given the location of principal defendants and potential
defendants/witnesses in the castern part of the United States and in Europe...” Jn re Ethylene
Propylene Diene Monomer (EPDM) Antitrust Litig., 277 F. Supp. 2d 1373, 1374 (.P.MLL.
); see also In re Parcel Tanker Shipping, 296 F. Supp. 2d at 1371 (fact that one defendant
5.Page 6 Case 1:04-cv-11583-GAO Document13_ Filed 08/31/2004 Page6of8
was located in the District of Connecticut, and that documents and witnesses were likely to be
found there, weighed in favor of transfer to District of Connecticut); Ja re Wireless Telephone
Federal Cost Recovery Fees Litig., 293 F. Supp. 2d at 1380 (transfer to district within the
metropolitan area in which the headquarters of a defendant and its affiliates were located, and
thus significant discovery of witnesses and documents is likely to occur there); see also In re K-
Dur Antitrust Litig., 176 F. Supp. 2d at 1378 (transfer to New Jersey because defendants’
“principal places of business are located in New Jersey [and] relevant documents and witnesses
will likely be found there”), The same rationale supports transfer to the District of Connecticut
in the instant litigation.
Finally, the District of Connecticut does not have a heavily burdened docket. In, there were 345 filings per judgeship in the District of Connecticut. Of the ninety-four
districts, the District of Connecticut is ranked 72. Judge Underhill is presiding over the eight
related cases in the District of Connecticut. He has no other MDL actions on his docket. See,
é.g., In re Parcel Tanker Shipping Servs., 296 F. Supp. 2d at 1371 (relatively favorable caseload
of District of Connecticut favored transfer of related actions to District of Connecticut).
CONCLUSION
it is undisputed that transfer and consolidation of the related antitrust actions
would promote efficient litigation of these cases and consistency. For all of the reasons stated
6-Page 7 Case 1:04-cv-11583-GAO Document13 _ Filed 08/31/2004 Page7of8
herein, the most appropriate Transferee District is the District of Connecticut, and Plaintiff ICS
Corporation respectfully requests that the Panel grant its Motion for transfer and consolidation to
that District pursuant to 28 U.S.C. § 1407.
Dated: August 27, 2004 Woot babe
Robert G. Eisler
Elizabeth H. Cronise
Jennifer Gross
LIEFF, CABRASER, HEIMANN &
BERNSTEIN, LLP
Third Avenue
48th Floor
New York, NY 10017
Telephone: (212) 355-9500
Joseph Garrison
Ethan Levin-Epstein
GARRISON LEVIN-EPSTEIN CHIMES &
RICHARDSON, P.C.
Orange Street
New Haven, CT 064511
Telephone: (203) 777-4425
James B. Brown
HERUM CRABTREE BROWN West March Lane, Suite B100
Stockton, CA 95207
Telephone: (209) 472-7700
Natalie Finkelman Bennett
SHEPHERD FINKELMAN MILLER &
SHAH
East State Street
Media, PA 19063
Telephone: (610) 891-9880
7.Page 8 Case 1:04-cv-11583-GAO Document13_— Filed 08/31/2004 Page 8of8
Kim D. Stephens
Beth Terrell
TOUSLEY BRAIN STEPHENS, PLLC Fifth Avenue, Suite 5600
Seattle, WA 98104-5056
Telephone: (206) 682-5600
Attorneys for Plaintiff in ICS Corporation v. International Paper Company, et al.,
Case No. 3:04-CV-01303-SRU (D. Conn.)
.4
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PlainSite Cover Page
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Case 1:04-cv-11583-GAO Document13 _ Filed 08/31/2004 Page 1 of8
BEFORE THE JUDICIAL PANEL ON
MULTIDISTRICT LITIGATION
In re:
MDL DOCKET NO. 1631
PUBLICATION PAPER ANTITRUST
LITIGATION
PLAINTIFF ICS CORPORATION'S
MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION
FOR TRANSFER AND CONSOLIDATION OF
RELATED ANTITRUST ACTIONS UNDER 28 U.S.C. § 1407
ICS Corporation (“Plaintiff”), plaintiff in 7CS Corporation v. International Paper,
et al., Case No. 3:04-CV-01303-SRU (“the ICS Action’) submits this Memorandum Of Law In
Support of its Motion for Transfer and Consolidation of Related Antitrust Actions Pursuant to 28
U.S.C. § 1407. For the reasons stated in Plaintiffs Motion and below, transfer and consolidation
of related Pubhcation Paper antitrust actions would serve the dual goals of justice and efficiency,
and the United States District Court for the District of Connecticut ts the most appropriate forum
for consolidation.
34133].4
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Case 1:04-cv-11583-GAO Document13 Filed 08/31/2004 Page2of8
FACTS
On May 25, 2004, European Union antitrust authorities raided the facilities of
Defendants UPM-Kymmene Oy}, Stora Enso Oyj, Metsalitto Group Oyj and M-Real Oyj in
Fintand and Norske Skogindustner ASA in Norway. The raids were conducted in cooperation
with Canadian and United States antitrust authorities, as part of a joint investigation of a
suspected illegal cartel in the market for magazine paper. Officials also raided the European
headquarters of Defendant Sappi Limited, a South African producer of magazine paper.
Defendant UPM-Kymmene Oy] agreed to cooperate with Canadian and European Union
authorities in exchange for conditional immunity. The United States Department of Justice
announced a domestic investigation of International Paper Company on the same day.
Two weeks later, a class action complaint was filed in the United States District
Court for the District of Connecticut, alleging, inter alia, that Defendants conspired to fix the
price of publication paper in violation of Section 1 of the Sherman Act.’ Within the next three
months, sixteen similar complaints (the “Related Cases”) were filed in eight federal districts,
including eight filed in the District of Connecticut. See Exhibit A to Plaintiff 1CS Corporation’s
Motion for Transfer and Consolidation of Related Antitrust Actions Pursuant to 28 U.S.C. §
1407 (hereinafter “Exhibit A’). All of those complaints arise out of the same set of facts, assert
the same or similar legal theories and request the same or similar relief. In all of the Related
Cases, the District Court will be asked to determine, inter alia, the following common factual
issues:
a. Whether Defendants and their co-conspirators engaged in a combination
and conspiracy among themselves to fix, raise, maintain or stabilize
prices of Publication Paper sold in the United States;
' Gardella v. International Paper Co., et al., Case No. 3:04-CV-00935-SRU (D. Conn.) (filed
June 8, 2004) (hereinafter “Gardella” or “the Gardella action’).
3413314 ~?-
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Case 1:04-cv-11583-GAO Document13 _ Filed 08/31/2004 Page 3of8
b. Whether Defendants and their co-conspirators engaged in a combination
and conspiracy among themselves to allocate customers or markets for
Publication Paper sold in the United States;
Cc. The identity of the participants in the conspiracy;
d. The nature and character of the acts performed by Defendants and their
co-conspirators in furtherance of the conspiracy;
e. The duration of the conspiracy;
f. Whether the alleged conspiracy violated Section 1 of the Sherman Act;
and
g. The effect of Defendants’ conspiracy on the prices of Publication Paper.
While all of the Related Cases asseri the same or similar claims arising from the
same set of facts, the most procedurally advanced cases are, as discussed further herein, currently
pending in the District of Connecticut. The headquarters of the United States subsidiaries of
most of the international defendants are located in the District of Connecticut, which is also the
headquarters of the largest domestic defendant, International Paper Company.
Plaintiff respectfully submits that transfer and consolidation of the Related Cases
identified in Exhibit A is appropriate, and that the most appropriate Transferee District is the
District of Connecticut.
ARGUMENT
Plaintiff joins with plaintiffs in the first two filed cases, Gardella and Weiss,’ with
plaintiff Acorn/Parliament, Inc.,’ and with Defendants in supporting transfer and consolidation of
all Publication Paper cases in the District of Connecticut. Transfer and consolidation of these
* Weiss v. International Paper Co., et al., Case No. 3:04-CV-00974-SRU (filed June 15, 2004)
(hereinafter “Weiss” or “the Weiss action”),
* Acorn/Parliament Inc. v. International Paper Co., et al., Case No. 3:04-CV-01077-SRU (filed
July 1, 2004).
3413314 -3-
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Case 1:04-cv-11583-GAO Document13_ Filed 08/31/2004 Page4of8
cases, which share “common questions of fact,” is warranted to “promote the just and efficient
conduct of such actions.” 28 U.S.C. § 1407(a). The most appropriate court for transfer is an
efficient forum whose location is convenient to the parties and witnesses. /d. The District of
Connecticut is that Transferee District in this case.
I. THE DISTRICT OF CONNECTICUT IS THE MOST APPROPRIATE FORUM
FOR TRANSFER OF THE RELATED CASES.
All parties who have submitted papers to the Panel in this matter agree that the
related Publication Paper antitrust cases should be coordinated to avoid duplicative proceedings
in different courts; the only outstanding question ts where.
Section 1407 provides for transfer to a single district “for the convenience of
parties and witnesses.” 28 U.S.C. § 1407. Plaintiff ICS Corporation respectfully submits that the
most appropriate district for transfer of the related cases is the United States District Court for
the District of Connecticut. Eight of the sixteen cases brought thus far are already pending in the
District of Connecticut, half of the cases filed and more than three times the number of cases
pending in any other venue. This fact weighs heavily in favor of transfer to the District of
Connecticut. See In re Parcel Tanker Shipping Servs. Antitrust Litig., 296 F. Supp. 2d 1370,
1371 (J.P.M.L. 2003) (where four of ten known related actions were filed in the District of
Connecticut, transfer to the District of Connecticut was appropriate); Jn re Carbon Black
Antitrust Litig., 277 F. Supp. 2d 1380, 1381 (J.P.M.L. 2003) (transfer to district where “the
majority of the actions are pending”); Jn re K-Dur Antitrust Litig., 176 F. Supp. 2d 1377, 1378
(J.P.M.L. 2001) (transfer to district where fourteen of thirty-two actions are pending).
Furthermore, the first-filed and furthest advanced case, namely the Gardella action, is pending in
front of Judge Underhill in the District of Connecticut. Motions to dismiss the Gardella action
are pending on behalf of Defendants Meadwestvaco Corp. (filed July 14, 2004), International
3413314 _4.
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Case 1:04-cv-11583-GAO Document13_— Filed 08/31/2004 Page5of8
Paper Co. (filed July 15, 2004), and S.D. Warren Co. (filed July 19, 2004). Plaintiff Gardella has
filed oppositions to those motions (filed August 4, 2004, August 5, 2004 and August 9, 2004)
and has also filed a motion for class certification (filed August 9, 2004). In addition, motions to
dismiss have been filed by Defendants International Paper Co. (filed July 19, 2004) and S.D.
Warren Co. (filed July 30, 2004) in the Weiss action also pending in the District of Connecticut.
Oppositions to those motions to dismiss were filed on August 9, 2004 and August 13, 2004,
respectively, and a motion for class certification was filed in the Weiss action on August 13,
2004, The advanced procedural posture of the Gardella and Weiss actions favors transfer to the
District of Connecticut. See, e.g., Jn re Wireless Telephone Federal Cost Recovery Fees Litig.,
293 F. Supp. 2d 1378, 1380 (J.P.M.L. 2003).
The District of Connecticut is also convenient to the largest number of parties and
witnesses, and the home of the vast majority of documents likely to be sought in discovery. The
largest United States Defendant, International Paper, is located there. All but one of the
European Defendants have a U.S. subsidiary in Connecticut, Massachusetts, or New York. Only
one Defendant has a primary place of business located in the Midwest, and only one Defendant
has a primary place of business located in the Pacific Northwest.
The Panel has previously granted transfer to the District of Connecticut in cases
with parallel circumstances. In a case involving a similar geographic dispersion of European and
United States defendants, the Panel recently held that “the District of Connecticut ... is a
geographically convenient location, given the location of principal defendants and potential
defendants/witnesses in the castern part of the United States and in Europe...” Jn re Ethylene
Propylene Diene Monomer (EPDM) Antitrust Litig., 277 F. Supp. 2d 1373, 1374 (.P.MLL.
2003); see also In re Parcel Tanker Shipping, 296 F. Supp. 2d at 1371 (fact that one defendant
3413314 5.
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Case 1:04-cv-11583-GAO Document13_ Filed 08/31/2004 Page6of8
was located in the District of Connecticut, and that documents and witnesses were likely to be
found there, weighed in favor of transfer to District of Connecticut); Ja re Wireless Telephone
Federal Cost Recovery Fees Litig., 293 F. Supp. 2d at 1380 (transfer to district within the
metropolitan area in which the headquarters of a defendant and its affiliates were located, and
thus significant discovery of witnesses and documents is likely to occur there); see also In re K-
Dur Antitrust Litig., 176 F. Supp. 2d at 1378 (transfer to New Jersey because defendants’
“principal places of business are located in New Jersey [and] relevant documents and witnesses
will likely be found there”), The same rationale supports transfer to the District of Connecticut
in the instant litigation.
Finally, the District of Connecticut does not have a heavily burdened docket. In
2003, there were 345 filings per judgeship in the District of Connecticut. Of the ninety-four
districts, the District of Connecticut is ranked 72. Judge Underhill is presiding over the eight
related cases in the District of Connecticut. He has no other MDL actions on his docket. See,
é.g., In re Parcel Tanker Shipping Servs., 296 F. Supp. 2d at 1371 (relatively favorable caseload
of District of Connecticut favored transfer of related actions to District of Connecticut).
CONCLUSION
it is undisputed that transfer and consolidation of the related antitrust actions
would promote efficient litigation of these cases and consistency. For all of the reasons stated
3413314 6-
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Case 1:04-cv-11583-GAO Document13 _ Filed 08/31/2004 Page7of8
herein, the most appropriate Transferee District is the District of Connecticut, and Plaintiff ICS
Corporation respectfully requests that the Panel grant its Motion for transfer and consolidation to
that District pursuant to 28 U.S.C. § 1407.
Dated: August 27, 2004 Woot babe
Robert G. Eisler
Elizabeth H. Cronise
Jennifer Gross
LIEFF, CABRASER, HEIMANN &
BERNSTEIN, LLP
780 Third Avenue
48th Floor
New York, NY 10017
Telephone: (212) 355-9500
Joseph Garrison
Ethan Levin-Epstein
GARRISON LEVIN-EPSTEIN CHIMES &
RICHARDSON, P.C.
405 Orange Street
New Haven, CT 064511
Telephone: (203) 777-4425
James B. Brown
HERUM CRABTREE BROWN
2291 West March Lane, Suite B100
Stockton, CA 95207
Telephone: (209) 472-7700
Natalie Finkelman Bennett
SHEPHERD FINKELMAN MILLER &
SHAH
35 East State Street
Media, PA 19063
Telephone: (610) 891-9880
3413314 7.
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Case 1:04-cv-11583-GAO Document13_— Filed 08/31/2004 Page 8of8
Kim D. Stephens
Beth Terrell
TOUSLEY BRAIN STEPHENS, PLLC
700 Fifth Avenue, Suite 5600
Seattle, WA 98104-5056
Telephone: (206) 682-5600
Attorneys for Plaintiff in ICS Corporation v. International Paper Company, et al.,
Case No. 3:04-CV-01303-SRU (D. Conn.)
341331.4
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