Avnet Incorporated v. Hitachi Chemical Company Limited et al

Filing 49

ORDER DENYING TRANSFER re: pldg. ( 1 in MDL No. 2748) The motion to transfer, pursuant to 28 U.S.C. 1407, is DENIEDSigned by Judge Sarah S. Vance, Chair, PANEL ON MULTIDISTRICT LITIGATION, on 12/7/2016. Associated Cases: MDL No. 2748, AZ/2:16-cv-02808, CAN/3:14-cv-03264, FLS/1:16-cv-23691 (TLL)

UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION

IN RE: CAPACITORS ANTITRUST
LITIGATION (NO. II)

MDL No. 2748

ORDER DENYING TRANSFER

Before the Panel:* Plaintiffs in the two non-California actions listed on Schedule A move
under 28 U.S.C. § 1407 to centralize pretrial proceedings in this litigation in the Northern District
of California. This litigation consists of three actions pending in the District of Arizona, the
Northern District of California, and the Southern District of Florida, as listed on Schedule A. The
actions allege that various manufacturers of capacitors (which are primarily Japanese or East Asian
firms and their U.S. subsidiaries) conspired to fix the prices of aluminum and tantalum electrolytic
capacitors, as well as film capacitors, all of which are used in myriad electronic products. The direct
purchaser class plaintiffs in the action pending in the Northern District of California and thirty-four
defendants1 oppose centralization.
On the basis of the papers filed and the hearing session held, we conclude that centralization
is not necessary for the convenience of the parties and witnesses or to further the just and efficient
conduct of the litigation. These actions without doubt share common factual and legal questions,
as all three involve the same alleged price fixing conspiracy. All the parties agree that the Arizona
and Florida actions should proceed in the Northern District of California, where a consolidated

*

Judge Lewis A. Kaplan took no part in the decision of this matter. Additionally, one or
more Panel members who could be members of the putative classes in this litigation have renounced
their participation in these classes and have participated in this decision.
1

The responding defendants include: AVX Corporation; Elna Co. Ltd.; Elna America Inc.;
Hitachi Chemical Co., Ltd.; Hitachi Chemical Company America, Ltd.; Hitachi AIC Incorporated;
Holy Stone Enterprise Co., Ltd.; Holystone International; Vishay Polytech Co., Ltd.; KEMET
Corporation; KEMET Electronics Corporation; Matsuo Electric Co., Ltd.; NEC TOKIN Corporation;
NEC TOKIN America, Inc.; Nichicon Corporation; Nichicon (America) Corporation; Panasonic
Corporation; Panasonic Corporation of North America; SANYO Electric Co., Ltd.; ROHM Co.,
Ltd.; ROHM Semiconductor U.S.A., LLC; Rubycon Corporation; Rubycon America Inc.; Shinyei
Kaisha; Shinyei Technology Co., Ltd.; Shinyei Capacitor Co., Ltd.; Shinyei Corporation of America,
Inc.; Shizuki Electric Co., Inc.; Soshin Electric Co., Ltd.; Soshin Electronics of America Inc.; Taitsu
Corporation; Taitsu America, Inc.; United Chemi-Con, Inc.; and Nippon Chemi-Con Corporation.
Each defendant is named in the California action and at least one of the non-California actions.

-2antitrust litigation has been litigated since 2014.2 The opposing parties argue, though, that such
transfer is better achieved through the venue transfer statute, 28 U.S.C. § 1404(a). We agree.
Our past decisions make clear that “centralization under Section 1407 should be the last
solution after considered review of all other options.” In re Best Buy Co., Inc., Cal. Song-Beverly
Credit Card Act Litig., 804 F. Supp. 2d 1376, 1378 (J.P.M.L. 2011). These options include transfer
pursuant to Section 1404, which is particularly advantageous because it:
is for all purposes, including trial. For this reason, transfer under Section
1404(a)—where appropriate—can result in a more streamlined action, without the
procedural necessity of remand to the transferor court that is required under Section
1407. This alone produces significant advantages. It allows for the possibility of
consolidation of actions for trial, which potentially avoids the increased costs
associated with multiple trials after the Panel remands actions to the various
transferor courts once pretrial proceedings are concluded.
In re Gerber Probiotic Prods. Mktg. & Sales Practices Litig., 899 F. Supp. 2d 1378, 1380 (J.P.M.L.
2012).
Though no Section 1404 motion to transfer venue has been filed yet in Arizona or Florida,
counsel for the opposing defendants stated at oral argument that these motions will be filed in short
order. Transfer under Section 1404 (if deemed appropriate by the transferor courts) would allow for
a consolidated trial of all three actions, since trial in the California litigation will not occur until at
least August 2018, and the immediate discovery in that action likely will focus on class certification
issues that are not relevant to the individual plaintiffs in the Arizona and Florida actions. Transfer
under Section 1404 at this juncture also would eliminate any need to engage in Section 1407 remand
and transfer proceedings on the eve of trial.3
Furthermore, where only a minimal number of actions are involved, the proponent bears a
heavier burden to demonstrate that centralization is appropriate. See In re Transocean Ltd. Sec.
Litig. (No. II), 753 F. Supp. 2d 1373, 1374 (J.P.M.L. 2010). This litigation involves only three
actions, and plaintiffs in the two non-California actions are represented by the same counsel. Thus,
if transfer ultimately cannot be effectuated through Section 1404, voluntary cooperation and
coordination among the parties and the involved courts may be feasible with respect to common

2

The litigation pending in the Northern District of California consists of fourteen actions that
have been consolidated for all purposes. These actions include putative direct purchaser class
actions, putative indirect purchaser class actions, and an individual direct purchaser action. The
Arizona and Florida actions are individual direct purchaser actions.
3

Section 1407 prohibits transferee courts from “self-transferring” cases pursuant to Section
1404 that have been transferred pursuant to Section 1407. See Lexecon Inc. v. Milberg Weiss
Bershad Bynes & Lerach, 523 U.S. 26 (1998).

-3discovery and pretrial proceedings. See, e.g., In re Eli Lilly & Co. (Cephalexin Monohydrate) Patent
Litig., 446 F. Supp. 242, 244 (J.P.M.L. 1978); see also Manual for Complex Litigation, Fourth,
§ 20.14 (2004). Alternatively, the parties may at that time again seek centralization under Section
1407.
IT IS THEREFORE ORDERED that the motion for centralization of these actions is denied.

PANEL ON MULTIDISTRICT LITIGATION

__________________________________________
Sarah S. Vance
Chair
Marjorie O. Rendell
Ellen Segal Huvelle
Catherine D. Perry

Charles R. Breyer
R. David Proctor

IN RE: CAPACITORS ANTITRUST
LITIGATION (NO. II)

MDL No. 2748

SCHEDULE A

District of Arizona
AVNET INCORPORATED v. HITACHI CHEMICAL COMPANY LIMITED, ET AL.,
C.A. No. 2:16-02808
Northern District of California
IN RE CAPACITORS ANTITRUST LITIGATION, C.A. No. 3:14-03264
Southern District of Florida
THE AASI BENEFICIARIES TRUST, BY AND THROUGH KENNETH A. WELT,
LIQUIDATING TRUSTEE v. AVX CORPORATION, ET AL.,
C.A. No. 1:16-23691