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FINE PAPER ANTITRUST LITIGATION (D.C. MDL NO. 323) STATE ALASKA v. BOISE CASCADE CORPORATION (07/16/82)

filed: July 16, 1982.

IN RE: FINE PAPER ANTITRUST LITIGATION (D.C. MDL NO. 323) THE STATE OF ALASKA, ON ITS OWN BEHALF AND ON BEHALF OF ITS CITIES, BOROUGHS, AND OTHER POLITICAL SUBDIVISIONS
v.
BOISE CASCADE CORPORATION, A DELAWARE CORPORATION; CHAMPION INTERNATIONAL CORPORATION, A NEW YORK CORPORATION; CROWN ZELLERBACH CORPORATION, A NEVADA CORPORATION; GREAT NORTHERN NEKOOSA CORPORATION, A MAINE CORPORATION; HAMMERMILL PAPER COMPANY, A PENNSYLVANIA CORPORATION; INTERNATIONAL PAPER COMPANY, A NEW YORK CORPORATION; KIMBERLY CLARK CORPORATION, A DELAWARE CORPORATION; THE MEAD CORPORATION, AN OHIO CORPORATION; POTLATCH CORPORATION, A DELAWARE CORPORATION; SCOTT PAPER COMPANY, A PENNSYLVANIA CORPORATION; ST. REGIS PAPER COMPANY, A NEW YORK CORPORATION; UNION CAMP CORPORATION, A VIRGINIA CORPORATION; WAUSAU PAPER MILLS CO., A WISCONSIN CORPORATION; WESTVACO CORPORATION, A DELAWARE CORPORATION; WEYERHAEUSER COMPANY, A WASHINGTON CORPORATION; BLAKE, MOFFITT & TOWNE, INC., A DIVISION OF SAXON INDUSTRIES, INC., A NEW YORK CORPORATION; WESTERN PAPER COMPANY, A DIVISION OF HAMMERMILL PAPER COMPANY, A PENNSYLVANIA CORPORATION; AND ZELLERBACH PAPER COMPANY, A DIVISION OF CROWN ZELLERBACH CORPORATION, A NEVADA CORPORATION, STATE OF ALASKA, APPELLANT IN NO. 81-2341; (D.C. CIVIL NO. 78-2958) IN RE: FINE PAPER ANTITRUST LITIGATION (D.C. MDL NO. 323) STATE OF COLORADO V. BOISE CASCADE CORPORATION, CHAMPION INTERNATIONAL CORPORATION, CROWN ZELLERBACH CORPORATION, D/B/A ZELLERBACH PAPER COMPANY, GREAT NORTHERN NEKOOSA CORPORATION, HAMMERMILL PAPER COMPANY, INTERNATIONAL PAPER COMPANY, KIMBERLY CLARK CORPORATION, THE MEAD CORPORATION, POTLATCH CORPORATION, SCOTT PAPER COMPANY, ST. REGIS PAPER COMPANY, UNION CAMP CORPORATION, WAUSAU PAPER MILLS COMPANY, WESTVACO CORPORATION, WEYERHAEUSER COMPANY, BUTLER PAPER COMPANY AND DIXON PAPER COMPANY, STATE OF COLORADO, APPELLANT IN NO. 81-2342; (D.C. CIVIL NO. 78-1359) IN RE: FINE PAPER ANTITRUST LITIGATION (D.C. MDL NO. 323) STATE OF WASHINGTON, ON BEHALF OF ITSELF AND ITS PUBLIC ENTITIES V. BOISE CASCADE CORP., CHAMPION INTERNATIONAL CORPORATION, HAMMERMILL PAPER COMPANY, INTERNATIONAL PAPER COMPANY, POTLATCH, INC., SCOTT PAPER COMPANY, ST. REGIS PAPER COMPANY, WEYERHAEUSER COMPANY, BLAKE, MOFFITT & TOWNE, INC., A DIVISION OF SAXON INDUSTRIES, INC., CARPENTER-OFFUTT PAPER COMPANY, INC. A DIVISION OF UNISOURCE CORP., ZELLERBACH PAPER COMPANY, A DIVISION OF CROWN ZELLERBACH CORPORATION, STATE OF WASHINGTON, APPELLANT IN NO. 81-2343; (D.C. CIVIL NO. 78-3081) IN RE: FINE PAPER ANTITRUST LITIGATION (D.C. MDL NO. 323) STATE OF MISSOURI V. BOISE CASCADE CORPORATION, CHAMPION INTERNATIONAL CORPORATION, CROWN ZELLERBACH CORPORATION, GREAT NORTHERN NEKOOSA CORPORATION, HAMMERMILL PAPER COMPANY, INTERNATIONAL PAPER COMPANY, KIMBERLY CLARK CORPORATION, THE MEAD CORPORATION, POTLATCH CORPORATION, SCOTT PAPER COMPANY, ST. REGIS PAPER COMPANY, UNION CAMP CORPORATION, WAUSAU PAPER MILLS COMPANY, WESTVACO CORPORATION, WEYERHAEUSER COMPANY CORPORATION, BUTLER PAPER COMPANY, GRAHAM PAPER COMPANY, BERMINGHAM & PROSSER COMPANY, DISTRIBIX, INC. PAPER SUPPLY COMPANY, AND SHAUGHNESSY-KNIE-PHAWE PAPER COMPANY, STATE OF MISSOURI, APPELLANT IN NO. 81-2344 (D.C. CIVIL NO. 78-1095); IN RE: FINE PAPER ANTITRUST LITIGATION (D.C. MDL NO. 323) THE STATE OF OREGON, ON ITS OWN BEHALF AND ON BEHALF OF ITS CITIES, COUNTIES, AND OTHER POLITICAL SUBDIVISIONS, V. BOISE CASCADE CORPORATION, CHAMPION INTERNATIONAL CORPORATION, CROWN ZELLERBACH CORPORATION, GREAT NORTHERN NEKOOSA CORPORATION, HAMMERMILL PAPER COMPANY, INTERNATIONAL PAPER COMPANY, KIMBERLY CLARK CORPORATION, THE MEAD CORPORATION, POTLATCH CORPORATION, SCOTT PAPER COMPANY, ST. REGIS PAPER COMPANY, UNION CAMP CORPORATION, WAUSAU PAPER MILLS COMPANY, WESTVACO CORPORATION, WEYERHAEUSER COMPANY, BLAKE, MOFFITT & TOWNE, DIVISION OF SAXON INDUSTRIES, INC., CARPENTER-OFFUTT PAPER COMPANY, DIVISION OF UNISOURCE CORPORATION, WESTERN PAPER COMPANY, DIVISION OF HAMMERMILL PAPER COMPANY, AND ZELLERBACH PAPER COMPANY, DIVISION OF CROWN ZELLERBACH CORPORATION, STATE OF OREGON, APPELLANT IN NO. 81-2345 (D.C. CIVIL NO. 78-1050); IN RE: FINE PAPER ANTITRUST LITIGATION (D. C. MDL NO. 323) THE STATE OF CALIFORNIA, ON BEHALF OF ITSELF AND ALL POLITICAL SUBDIVISIONS, PUBLIC AGENCIES AND DISTRICTS WITHIN THE STATE SIMILARLY SITUATED V. BOISE CASCADE CORPORATION, CHAMPION INTERNATIONAL CORPORATION, CROWN ZELLERBACH CORPORATION, GREAT NORTHERN NEKOOSA CORPORATION, HAMMERMILL PAPER COMPANY, INTERNATIONAL PAPER COMPANY, KIMBERLY CLARK CORPORATION, THE MEAD CORPORATION, POTLATCH CORPORATION, SCOTT PAPER COMPANY, ST. REGIS PAPER COMPANY, UNION CAMP CORPORATION, WAUSAU PAPER MILLS COMPANY, WESTVACO CORPORATION, WEYERHAEUSER COMPANY, BUTLER PAPER COMPANY, AN AFFILIATE OF GREAT NORTHERN NEKOOSA CORP., J. C. PAPER COMPANY, AN AFFILIATE OF WAUSAU PAPER MILLS CO., NATIONWIDE PAPERS, INCORPORATED, A DIVISION OF CHAMPION INTERNATIONAL CORP., SEABOARD PAPER COMPANY, AN AFFILIATE OF MEAD CORP., ZELLERBACH PAPER COMPANY, A DIVISION OF CROWN ZELLERBACH CORP., BLAKE, MOFFITT & TOWNE, A DIVISION OF SAXON INDUSTRIES, INC., CARPENTER-OFFUTT PAPER COMPANY, A DIVISION OF UNISOURCE CORP., INGRAM PAPER COMPANY AND NOLAND PAPER COMPANY (CARPENTER/OFFUTT PAPER CO.), STATE OF CALIFORNIA, APPELLANT IN NO. 81-2346 (D.C. CIVIL NO. 78-2494); IN RE: FINE PAPER ANTITRUST LITIGATION (D.C. MDL NO. 323) NEBRASKA, STATE OF V. BOISE CASCADE CORPORATION, CHAMPION INTERNATIONAL CORPORATION, GREAT NORTHERN NEKOOSA CORPORATION, HAMMERMILL PAPER COMPANY, INTERNATIONAL PAPER COMPANY, THE MEAD CORPORATION, POTLATCH CORPORATION, SCOTT PAPER COMPANY, ST. REGIS PAPER COMPANY, UNION CAMP CORPORATION, WAUSAU PAPER MILLS CO., WESTVACO CORPORATION, WEYERHAEUSER COMPANY, CROWN ZELLERBACH CORPORATION, KIMBERLY CLARK AND WESTERN PAPER CO., A DIVISION OF HAMMERMILL PAPER COMPANY, STATE OF NEBRASKA, APPELLANT IN NO. 81-2347 (D.C. CIVIL NO. 78-1049); IN RE: FINE PAPER ANTITRUST LITIGATION (D.C. MDL NO. 323) STATE OF IOWA, BY ITS ATTORNEY GENERAL, RICHARD C. TURNER V. BOISE CASCADE CORP.; CHAMPION INTERNATIONAL CORPORATION; THE MEAD CORPORATION; GREAT NORTHERN NEKOOSA CORPORATION; HAMMERMILL PAPER COMPANY; INTERNATIONAL PAPER COMPANY; POTLATCH CORPORATION; SCOTT PAPER COMPANY; ST. REGIS PAPER COMPANY; UNION CAMP CORPORATION; WAUSAU PAPER MILLS CO.; WESTVACO CORP.; AND WEYERHAEUSER COMPANY, STATE OF IOWA, APPELLANT IN NO. 81-2348 (D.C. CIVIL NO. 78-1096); IN RE: FINE PAPER ANTITRUST LITIGATION (D.C. MDL NO. 323) MONTANA, STATE OF V. BOISE CASCADE CORP.; CHAMPION INTERNATIONAL CORP.; GREAT NORTHERN NEKOOSA CORP.; HAMMERMILL PAPER CO.; INTERNATIONAL PAPER CO.; MEAD CORP.; THE POTLATCH CORP.; SCOTT PAPER CO.; ST. REGIS PAPER CO.; UNION CAMP CORP.; WAUSAU PAPER MILLS CO.; WESTVACO CORP.; WEYERHAEUSER CO.; CROWN ZELLERBACH CORP.; AND KIMBERLY CLARK, STATE OF MONTANA, APPELLANT IN NO. 81-2349 (D.C. CIVIL NO. 78-3576); IN RE: FINE PAPER ANTITRUST LITIGATION (D.C. MDL NO. 323) STATE OF ARKANSAS V. BOISE CASCADE CORPORATION, CHAMPION INTERNATIONAL CORPORATION, CROWN ZELLERBACH CORPORATION, GREAT NORTHERN NEKOOSA CORPORATION, HAMMERMILL PAPER COMPANY, INTERNATIONAL PAPER COMPANY, KIMBERLY CLARK CORPORATION, THE MEAD CORPORATION, POTLATCH CORPORATION, SCOTT PAPER COMPANY, ST. REGIS PAPER COMPANY, UNION CAMP CORPORATION; WAUSAU PAPER MILLS COMPANY, WESTVACO CORPORATION, WESTERN PAPER COMPANY, GRAHAM PAPER COMPANY, STATE OF ARKANSAS, APPELLANT IN NO. 81-2350 (D.C. CIVIL NO. 78-1716)



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.

Aldisert, Gibbons, and Higginbotham, Circuit Judges.

Author: Aldisert

Opinion OF THE COURT

ALDISERT, Circuit Judge.

These consolidated appeals present several procedural issues arising from a complex antitrust proceeding. Ten states, plaintiffs below, appeal from judgments entered on a jury verdict in their actions for treble damages alleging a nationwide price-fixing conspiracy in violation of § 1 of the Sherman Act. The defendants did not offer any evidence at trial, but rested at the close of the plaintiffs' case; the jury then found in favor of all defendants. On appeal, the plaintiffs assert numerous procedural errors, generally contending that the district court unduly limited their opportunity to develop and present their case. We are not persuaded that the district court either abused its discretion or erred in its selection, interpretation, or application of the controlling legal precepts, and therefore we will affirm its judgment in all respects.

I.

This case has a complicated procedural history, owing in part to the number of parties. Named as defendants were manufacturers and merchants of "fine paper,"*fn1 which the states buy in large quantity. Some of the merchants are owned by the mills themselves and some are independent. Beginning in 1977, following the initiation of ultimately inconclusive investigations by the Federal Trade Commission and the United States Department of Justice, several states and private plaintiffs brought a total of 37 individual actions alleging that the mills and merchants had participated in a nationwide price-fixing conspiracy. Pursuant to 28 U.S.C. § 1407, the Judicial Panel on Multi-District Litigation transferred the cases to the Eastern District of Pennsylvania for coordinated pre-trial proceedings, assigned to Judge Joseph L. McGlynn.*fn2 In re Fine Paper Antitrust Litigation, 446 F. Supp. 759 (J.P.M.D.L. 1978) (per curiam); 453 F. Supp. 118 (J.P.M.D.L. 1978) (per curiam).

The district court divided the plaintiffs into three groups: a class of private plaintiffs, "minority states," and "majority states." The minority states alleged only a horizontal conspiracy among the mill defendants; the majority states, the present appellants, alleged both a horizontal conspiracy among the mill defendants and vertical conspiracies involving mills and merchants. In addition to certifying a class of private plaintiffs, the court certified each minority state and its respective government entities as a separate plaintiff class,*fn3 but it refused to do the same for the majority states because the added factor of vertical conspiracy made those actions less susceptible to generalized proof. In re Fine Paper Antitrust Litigation, 82 F.R.D. 143 (E.D.Pa. 1979). See Fed. R. Civ. P. 23(b) (3).

Following a pre-trial conference on March 7, 1979, the court established discovery deadlines and set a tentative trial date of January 2, 1980. The next few months were occupied with discovery and related motions. On September 27, 1979, plaintiffs asked for an extension of the trial date because of the number of depositions they wished to take, but the court expressed reluctance to deviate from its schedule. At a conference on December 4, 1979, the court rejected plaintiffs' proposal that trial not begin until October 1980, but it rescheduled the trial for the "certified plaintiffs" (the private plaintiffs and the minority states) to September 22, 1980, barring a "nuclear holocaust." The court did not fix a trial date for the majority states, but it established July 3, 1980, as the discovery cut-off date in all of the cases.

On January 15, 1980, the court decided it could resolve the litigation more efficiently if trial on the majority states' claims were conducted in advance of the certified plaintiffs' trial. It then set for the majority states a trial date of June 16, 1980, and a revised discovery deadline of May 30. Appellants vehemently protested that they still had 300,000 documents to review and more than 100 depositions to take, and that the court's revised schedule left inadequate time for discovery and trial preparation. The court denied their motion for reconsideration.

On January 17, 1980, the court entered an order that all parties would be deemed to have consented to venue and to have waived objections to trial in the Eastern District of Pennsylvania unless they filed written objections. The majority states opposed the proposed transfer.

In early June 1980, in contemplation of a June 16 trial, the majority states submitted a 200-page pre-trial memorandum. Defendants moved to dismiss, contending that the memorandum was unacceptable because it presented only conclusory allegations rather than the specific enumeration of facts the court had required. The court did not grant defendants' motion, but it ordered plaintiffs to prepare a memorandum by July 25 "which outlines the case chapter and verse as to each defendant." App. at 2064-65. Plaintiffs moved for a continuance, again complaining that they had not been allowed enough time for discovery. The court stated that the majority states' actions would be tried with or after the certified plaintiffs' trial. It did not modify the discovery schedule, but it did allow some additional depositions.

The certified plaintiffs settled their cases shortly before trial. On September 25, 1980, the court announced that the majority states' trial would begin on October 6, 1980 -- nine months after the tentative trial date and four months after the trial date set on January 15, 1980. Although they had been on notice since January 17, 1980, that the court wished to try the cases itself, the plaintiffs objected that they would have insufficient time to set up a Philadelphia office and to transport their files across the country. The court considered these arguments but concluded that October 6 was a realistic date.

On September 29, 1980, over plaintiffs' objections, the district court, pursuant to 28 U.S.C. § 1404(a), formally transferred all of the majority states' cases to the Eastern District of Pennsylvania for trial, which began on October 6, 1980. Following plaintiffs' four-week presentation, which consisted primarily of reading depositions to the jury, the defendants rested without ...


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