Diamond v. Apple Inc et al

Filing 20

TRANSFER ORDER by MDL Panel TRANSFERRING CASE to the Southern District of New York. (slh, COURT STAFF) (Filed on 12/14/2011)

Case MDL No. 2293 Document 83 Filed 12/09/11 Page 1 of 4

UNITED STATES JUDICIAL PANEL
on

MUL TIDISTRICT LITIGATION

IN RE: ELECTRONIC BOOKS ANTITRUST LITIGATION

MDL No. 2293

TRANSFER ORDER

Before the Panel:* Pursuant to 28 U.S.C. § 1407, plaintiffs in two Southern District ofNew
York actions move for coordinated or consolidated pretrial proceedings of five actions pending in two
districts as listed on Schedule A. 1 Moving plaintiffs seek centralization in the Southern District ofNew
York.
Common defendants Hachette Book Group, Inc.; HarperCollins Publishers LLC, Holtzbrinck
Publishers, LLC d/b/a Macmillan, Penguin Group (USA), Inc., and Simon & Schuster, Inc., support
centralization in Southern District ofNew York. Random House, Inc., and Barnes & Noble, Inc., each
of which is named as a defendant in at least one Southern District ofN ew York action, similarly support
centralization in Southern District ofNew York. Common defendant Apple, Inc. supports centralization
in either district; it takes no position on which district would be a more appropriate transferee forum.
Plaintiffs in the third Southern District ofNew York action encompassed by the motion and two
Southern District of New York related actions support centralization in the Southern District ofNew
York. Plaintiff in one of these related actions ( Cheatem) also supports centralization in the Northern
District of California in the alternative.
Plaintiffs in the first-filed Northern District of California action (Petru) oppose the motion and
ask the Panel to defer its decision until the motion to transfer, or stay, filed in several Southern District
ofN ew York actions has been decided. These plaintiffs assert that 27 additional plaintiffs in two related
Northern District of California actions join their position. In the alternative, these plaintiffs support
centralization in the Northern District of California. Plaintiff in the second Northern District of
California action encompassed by the motion suggests centralization in the Northern District of
California.

•

Judge John G. Heyburn II and Judge Charles R. Breyer took no part in the decision of this matter.

The parties have notified the Panel of twenty related actions pending either in the Northern District
of California or the Southern District ofNew York. These actions will be treated as potential tag-along
actions in accordance with Panel Rules 7.1 and 7.2.

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On the basis of the papers filed and the hearing session held, we find that these five actions
involve common questions of fact, and that centralization under Section 1407 in the Southern District
ofNew York will serve the convenience of the parties and witnesses and promote the just and efficient
conduct of this litigation. Plaintiffs in all actions allege one or more conspiracies to fix prices in the
alleged market for electronic books. As set forth in the complaints, plaintiffs are purchasers of electronic
books who allege that the defendants engaged in anti -competitive conspiracies in violation of federal
antitrust laws and various states' laws, causing the plaintiffs and putative class members to pay inflated
prices for electronic books. All actions were filed in August 2011 or later and have not progressed
beyond the filing of the complaints. Centralization will eliminate duplicative discovery; prevent
inconsistent pretrial rulings, particularly with respect to class certification; and conserve the resources
of the parties, their counsel and the judiciary.
Although certain plaintiffs object to centralization under Section 1407, no party disputes that the
actions should proceed in a single forum. In the past the Panel sometimes has deferred its decision when
a reasonable prospect existed that the multidistrict character of the litigation would be eliminated, but
that prospect is more remote here. Without successful intervention motions in all Southern District of
New York cases and successful motions to transfer those cases to the Northern District of California,
these cases would continue in two districts. Given that these motions have yet to be filed in all actions
pending in the Southern District of New York, centralization under Section 1407 without delay would
better serve the goals of efficient litigation. 2
We are persuaded that the Southern District of New York is a more appropriate transferee
district for this litigation. Both districts in which actions are pending are easily accessible, and a
comparable number of actions are pending in each district; however, nearly all defendants, including all
publishing defendants, are located in New York City, giving it a nexus to the allegations. Also, all
defendants advocating centralization in a particular district support centralization in the Southern District
ofNew York. The only defendant located in the Northern District of California, common defendant
Apple, takes no position on the appropriate transferee district, but acknowledges that the center of
gravity of the litigation is not in California. Centralization in the Southern District of New Y ark also
allows the Panel to assign this litigation to an experienced transferee judge who is not currently presiding
over another multidistrict litigation.
IT IS THEREFORE ORDERED that pursuant to 28 U.S.C. § 1407, the actions listed on
Schedule A and pending outside the Southern District of New Y ark are transferred to the Southern
District ofN ew Y ark and, with the consent of that court, assigned to the Honorable Denise L. Cote for

2

See In re Air Crash Near Clarence Center, New York on February 12, 2009,655 F. Supp. 2d
1355, 1356 (J.P.M.L. 2009) ("We are not persuaded that a deferral of our decision is preferable. Section
1407 centralization at this juncture ensures streamlined pretrial proceedings."); see also In re Airline
Baggage Fee Antitrust Litig., 655 F. Supp. 2d 1362, 1363 (J.P .M.L. 2009) ("Under these circumstances,
we believe that Section 1407 is the more efficient method of congregating these related actions for
pretrial proceedings.").

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coordinated or consolidated pretrial proceedings with the actions listed on Schedule A and pending in
that district.

PANEL ON MULTIDISTRICT LITIGATION

Kathryn H. Vratil
Acting Chairman
W. Royal Furgeson, Jr.
Paul J. Barbadoro

Barbara S. Jones
Marjorie 0. Rendell

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IN RE: ELECTRONIC BOOKS ANTITRUST LITIGATION

MDL No. 2293

SCHEDULE A

Northern District of California
Anthony Petru, et al. v. Apple, Inc., et al., C.A. No. 3:11-03892
Patsy Diamond v. Apple, Inc., et al., C.A. No. 3:11-03954
Southern District of New York
Shilpa Grover, et al. v. Macmillan, et al., C.A. No. 1:11-05576
Jeffery Evans, et al. v. Macmillan, et al., C.A. No. 1:11-05609
Rhonda Burstein v. Hachette Book Group, Inc., et al., C.A. No. 1:11-05621