IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No.

07-1689 _____________________________________________ IN RE: HYDROGEN PEROXIDE ANTITRUST LITIGATION (MDL 1682) District Court. No. 05-666 (E.D.Pa.) _____________________________________________ RESPONDENTS OPPOSITION TO MOTION TO STAY DISCOVERY _____________________________________________

Anthony J. Bolognese Joshua H. Grabar John G. Narkin BOLOGNESE & ASSOCIATES, LLC One Penn Center 1617 JFK Blvd., Suite 650 Philadelphia, PA 19103 Telephone: (215) 814-6750 Robert N. Kaplan Gregory K. Arenson Jason A. Zweig KAPLAN FOX & KILSHEIMER LLP 805 Third Avenue, 22nd Floor New York, NY 10022 Telephone: (212) 687-1980

Steven A. Kanner William H. London Douglas A. Millen Robert J. Wozniak FREED KANNER LONDON & MILLEN, LLC 2201 Waukegan Road, Suite 130 Bannockburn, IL 60015 Telephone: (224) 632-4500 Michael D. Hausfeld William Butterfield Reena Gambhir COHEN, MILSTEIN, HAUSFELD & TOLL, P.L.L.C. 1100 New York Avenue, N.W. West Tower, Suite 500 Washington, DC 20005 Telephone: (202) 408-4600

Attorneys for Respondents

TABLE OF CONTENTS
I.

SUMMARY OF ARGUMENT.......................................................................1 INTRODUCTION AND BACKGROUND ....................................................4 ARGUMENT...................................................................................................8 A. B. MOVANTS HAVE NOT MET THEIR HEAVY BURDEN OF DEMONSTRATING ENTITLEMENT TO A STAY....................8 A STAY OF DISCOVERY IS UNNECESSARY AND UNJUSTIFIED BECAUSE THIS LITIGATION WILL CONTINUE REGARDLESS OF HOW THIS COURT RULES ON MOVANTS CLASS CERTIFICATION APPEAL ....................11 THE DISTRICT COURT PROPERLY EXERCISED ITS DISCRETION IN DENYING MOVANTS MOTION TO STAY MERITS DISCOVERY IN THIS CASE ................................12 1. 2. 3. 4. There is No Irreparable Injury to Movants ...........................14 A Stay Would Cause Substantial Injury to Respondents ........17 The Public Interest Lies Heavily in Respondents Favor .........19 Movants Face Imposing Obstacles On Appeal.........................21

II. III.

C.

IV.

CONCLUSION..............................................................................................29

TABLE OF CITATIONS
Cases

Beattie v. CenturyTel Inc., No. 02-10277, 2006 WL 1722207 (E.D. Mich. June 20, 2006) ......................... 13, 16 Beck v. Maximus, Inc., 457 F.3d 291 (3d Cir. 2006) .............................................................................................. 29 Blades v. Monsanto Co., 400 F.3d 562 (8th Cir. 2005) .............................................................................................. 25 Blair v. Equifax Check Servs., Inc., 181 F.3d 832 (7th Cir. 1999) ...................................................................................... passim Bogosian v. Gulf Oil Corp., 561 F.2d 434 (3d Cir. 1977) .............................................................................. 21, 22, 28, 2 Castano v. American Tobacco Co., 84 F.3d 734 (5th Cir. 1996) ............................................................................................... 20 Cumberland Farms, Inc. v. Browning-Ferris Industries, Inc., 120 F.R.D. 642 (E.D. Pa. 1988) ................................................................................... 19, 2 Daniels v. City of New York, 138 F.Supp.2d 562 (S.D.N.Y. 2001) ......................................................................... 13, 17 De Asencio v. Tyson Foods, Inc., 342 F.3d 301 (3d Cir. 2003) .............................................................................................. 22 Family Trust Foundation of Kentucky, Inc. v. Kentucky Judicial Conduct Commn, 388 F.3d 224 (6th Cir. 2004) .............................................................................................. 16 Gold v. Johns-Manville Corp., 723 F.2d 1068 (3d Cir. 1983).................................................................................... 3, 8, 10 Golden Quality Ice Cream Co. v. Deerfield Specialty, 87 F.R.D. 53 (E.D. Pa. 1980) ............................................................................................ 20 ii

Grider v. Keystone Health Plan Cent., Inc., No. Civ. A. 2001-CV-05641, 2004 WL 1047840 (E.D.Pa. May 4, 2004) .......... 3, 9 Hammerman v. Peacock, 623 F.Supp. 719 (D.D.C. 1985)........................................................................................ 17 Hawaii v. Standard Oil Co., 405 U.S. 251 (1972) ............................................................................................................ 19 Hilton v. Braunskill, 481 U.S. 770 (1987) ............................................................................................................ 14 Hnot v. Willis Group Holdings Ltd., -- F.R.D. --, 2007 WL 749675 (S.D.N.Y. Mar. 8, 2007) ........................................... 24 Illinois Brick Co. v. Illinois, 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977) ................................................. 27 In re Hydrogen Peroxide Antitrust Litig., 240 F.Supp. 2d 163 (E.D. Pa. 2007), app. granted, No. 07-8009 (3d Cir. Feb. 28, 2007) ............................................. 5, 25, 1 In re Initial Public Offering Sec. Litig., 471 F.3d 24 (2d Cir. 2006) ................................................................................................ 24 In re Linerboard Antitrust Litig., 305 F.3d 145 (3d Cir. 2002) ....................................................................................... passim In re Lorazepam & Clorazepate Antitrust Litig., 208 F.R.D. 1 (D.D.C. 2002) ........................................................................................ 17, 27 In re Plastics Additives Antitrust Litigation, No. 03-2038, 2004 WL 2743591 (E.D. Pa. Nov. 29, 2004) ...................................... 19 In re Residential Doors Antitrust Litigation, 900 F.Supp. 749 (E.D. Pa. 1995) ................................................................................. 20, 1 In re Sumitomo Copper Litig., 262 F.3d 134 (2d Cir. 2001) ........................................................................................ 12, 13

iii

Interwave Technology, Inc. v. Rockwell Automation, Inc., No. Civ. A. 05-0398, 2005 WL 1667591 (E.D.Pa. Jul. 14, 2005)......................... 3, 9 Jayaraj v. Scappini, 66 F.3d 36 (2d Cir.1995) .................................................................................................... 17 Johnston v. HBO Film Mgmt. Inc., 265 F.3d 178 (3d Cir. 2001) .............................................................................................. 21 Landis v. North American Co., 299 U.S. 248 (1936) ........................................................................................................ 8, 10 Lightfoot v. Walker, 797 F.2d. 505 (7th Cir. 1986) ............................................................................................... 9 Long v. Robinson, 432 F.2d 977 (4th Cir.1970) ............................................................................................... 10 Monahan v. City of Wilmington, 49 Fed. Appx. 383 (3d Cir. 2003) .................................................................................... 22 Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154 (3d Cir. 2001) ........................................................................................ 21, 24 Nutraquest, Inc. v. All American Phamaceutical & Natural Foods Corp., Civ. No. 06-186 (DRD), 2007 WL 121448 (D.N.J. Jan. 11, 2007) ...................... 3, 9 Phamaceutical & Natural Foods Corp., Civ. No. 06-186 (DRD), 2007 WL 121448 (D.N.J. Jan. 11, 2007) ...................... 3, 9 Pillsbury Co. v. Conboy, 459 U.S. 242 (1983) ............................................................................................................ 19 Republic of Philippines v. Westinghouse Elec. Corp., 949 F. 2d 653 (3d Cir. 1991) ......................................................................................... 6, 13 Samuel-Bassett v. KIA Motors Am., Inc., 357 F.3d 392 (3d Cir. 2004) .............................................................................................. 22

iv

United States v. Breyer, 41 F.3d 884 (3d Cir. 1994) ........................................................................................ 3, 9, 10 United States v. Carlin, No. 06-1906, 2006 WL 3208675 (E.D. Pa. Nov. 2, 2006) ........................................ 14 Wachtel v. Guardian Life Ins. Co. of America, 453 F.3d 179 (3d Cir. 2006) .............................................................................................. 29 Weisfeld v. Sun Chem. Corp., 84 Fed. Appx. 257 (3d Cir. 2004) .................................................................................... 22 West Tenn. Assoc. Builders v. City of Memphis, 138 F.Supp.2d 1015 (W.D. Tenn. 2000) ........................................................................ 13 Will v. Calvert Fire Ins. Co., 437 U.S. 655, 98 S.Ct. 2552, 57 L.Ed.2d 504 (1978) ............................................. 9, 10 Wisconsin Gas Co. v. FERC, 758 F.2d 669 (D.C.Cir.1985) ............................................................................................ 17
Other Authorities

Carey M. Erhard, Note, A Discussion of Interlocutory Review of Class Certification Orders Under Federal Rule of Civil Procedure 23(f), 51 Drake L. Rev. 151, 178 (2002) ................................................................................... 13

Respondents, Direct Purchaser Plaintiffs below, by the undersigned counsel, respectfully submit this opposition to Defendants Motion to Stay Merits Discovery Pending Appeal of Class Certification Order (Motion).1
I.

SUMMARY OF ARGUMENT

Rule 23(f) provides that [a]n appeal does not stay proceedings in the district court unless the district judge or the court of appeals so orders. The Advisory Committee Notes to Rule 23(f) elaborate that: Permission to appeal does not stay trial court proceedings. If the trial court refuses a stay, its actions and any explanation of its views should weigh heavily with the court of appeals. Here, Movants have presented no appropriate basis for delaying merits discovery, as the District Court explicitly recognized and explained. This case involves serious allegations of price-fixing carried out on a global scale for over a decade, allegations that are supported by guilty pleas to felony price-fixing charges in the United States, admissions of criminal misconduct by a defendant/leniency applicant in corporate leniency programs operated by both the United States Department of Justice (DOJ) and the European Commission (EC), and an adjudication of liability

In this appellate proceeding, movants inappropriately designate themselves as defendants. They are referred to here as Movants. 1

against each defendant by E.C. antitrust regulators.2 No novel or unsettled principles of law are implicated by this appeal because the standards for class certification in price-fixing actions such as this are firmly established and were scrupulously followed by the district court. Respondents made substantial purchases of hydrogen peroxide, sodium perborate and sodium percarbonate from Movants during the relevant time period, as did plaintiffs in a separate opt-out action that remains pending before the District Court. The opt-out action alleges the same conspiracy alleged in the class action. Respondents and the opt-out plaintiffs3 will continue to litigate their individual claims, where the evidence and the proof relative to the scope of the price-fixing conspiracy, the participants in the price-fixing conspiracy, the manner in which the price-fixing conspiracy was carried out, and the temporal scope of the conspiracy, will be the same regardless of the ultimate disposition of this appeal. There are thus no case dispositive issues pending or to be decided by this Courts adjudication of Movants Rule 23(f) appeal. Movants will

See Exhibit A.

Unlike plaintiffs in the consumer cases cited by Movants, Respondents and the opt-out plaintiffs sustained millions of dollars in damages resulting from their purchases of hydrogen peroxide and sodium perborate. 2

suffer no prejudice if merits discovery goes forward, and there is a strong and compelling public interest in having this case proceed expeditiously. Movants have not identified a single case where this Court or any federal Court of Appeals has stayed discovery under Rule 23(f) after the district court considered and refused the same request, particularly under the circumstances presented in this case. Instead, to support their argument here, Movants rely upon a litany of inapposite district court cases. However, as Rule 23(f) and the Advisory Committee notes recognize, it is the district court, not the Court of Appeals, that is by far in the better position to decide whether a stay is warranted pending appeal. See United States v. Breyer, 41 F.3d 884, 893 (3d Cir. 1994); Gold v. Johns-Manville Corp., 723 F.2d 1068, 1075-76 (3d Cir. 1983); Nutraquest, Inc. v. All American Phamaceutical & Natural Foods Corp., Civ. No. 06-186 (DRD), 2007 WL 121448, at *1 (D.N.J. Jan. 11, 2007); Interwave Technology, Inc. v. Rockwell Automation, Inc., No. Civ. A. 05-0398, 2005 WL 1667591, at *2 (E.D.Pa. Jul. 14, 2005); Grider v. Keystone Health Plan Cent., Inc., No. Civ. A. 2001-CV-05641, 2004 WL 1047840, at *1 (E.D.Pa. May 4, 2004) (same). As a practical matter, the district courts exercise of discretion in denying (or granting) a stay pending interlocutory appeal is to be overturned only on the rarest and most extreme of occasions. This is not one of those occasions.

As demonstrated below, Movants satisfy none of the standards that would warrant granting a stay. Movants will suffer no irreparable injury absent a stay the class representatives and the opt-out plaintiffs will pursue individual actions regardless of the ultimate resolution of this appeal. Respondents will be injured if discovery is stayed the alleged violations date back over a decade; delaying discovery will cause the evidence to grow even more stale, and witnesses and documents (many of whom are located in Europe) will leave the parties' control by virtue of death, retirement, relocation and fading memories. The public interest lies in having Respondents claims adjudicated. Finally, Movants prospects of success on the merits of their appeal are less than likely. The decision below refusing Movants a stay is sound, and Movants renewed motion for a stay of discovery should be denied. II. INTRODUCTION AND BACKGROUND Respondents are representative plaintiffs for the class of direct purchasers certified by the District Courts Order dated January 19, 2007 (Class Certification Order). In re Hydrogen Peroxide Antitrust Litig., 240 F.Supp. 2d 163, 178 (E.D. Pa. 2007), app. granted, No. 07-8009 (3d Cir.

Feb. 28, 2007).4 Respondents allege that during the Class Period, Movants conspired to fix the price of hydrogen peroxide and two downstream products, sodium perborate and sodium percarbonate sold in the United States in violation of Section 1 of the Sherman Act, 15 U.S.C. 1. By Order dated February 20, 2007, following a pretrial conference, the District Court entered a Scheduling Order Regarding Merits and Expert Discovery (Scheduling Order). See Declaration of Alan J. Davis (Davis Decl.), filed together with Movants Motion, at Ex. D. Thereafter, on February 28, 2007, a three-judge panel of this Court granted Movants petition for review of the Class Certification Order under Fed. R. Civ. P. 23(f), issuing a three-sentence Order that did not reveal the panels rationale for permitting a review of the Class Certification Order. See Davis Decl., at Ex. A. Movants subsequently filed a motion to stay discovery pending this
4

The District Court certified the following class under Fed. R. Civ. P. 23(b)(3): All persons or entities, including state, local and municipal government entities (but excluding defendants, their parents, predecessors, successors, subsidiaries, and affiliates as well as federal government entities) who purchased hydrogen peroxide, sodium perborate, or sodium percarbonate in the United States, its territories, or possessions, or from a facility located in the United States, its territories, or possessions, directly from any of the defendants, or from any of their parents, predecessors, successors, subsidiaries, or affiliates, at any time during the period from September 14, 1994 to January 5, 2005 (Class Period). 5

Courts adjudication of their Rule 23(f) appeal. The District Court denied that motion in an Order dated March 16, 2007 (Stay Denial Order), a copy of which is attached here as Exhibit B. In its Stay Denial Order, the District Court articulated in detail the specific reasons supporting its determination that the most efficient and just way to resolve this case is to allow discovery to proceed during the pendency of the appeal. Stay Denial Order, (r). Analyzing the relevant factors identified by this Court in Republic of Philippines v. Westinghouse Elec. Corp., 949 F. 2d 653, 658 (3d Cir. 1991), the District Court denied Movants motion. First, the District Court held that Movants will not be irreparably injured absent a stay because (1) there is a separate but substantively related case that has been brought independently on behalf of direct purchasers that have opted out of the class action (the Conopco plaintiffs); (2) this Courts adjudication of the Class Certification Order appeal will not affect the related legal claims in the Conopco plaintiffs action; (3) there is no possible justification for staying progress of a pending opt-out action while disputes over class certification are being resolved; (5) the vast majority of discoverable material in the class action will be relevant to the Conopco plaintiffs action; (6) even if this Court did reverse or modify the Class

Certification Order, this case would continue to go forward as to a significant number of [other] plaintiffs, who as buyers of tank-sized quantities of the chemicals at issue, have ample economic incentives to prosecute these treble damage claims on their own to the bitter end"; and (7) a stay of discovery at this point would merely delay the inevitable. Stay Denial Order, (c), (d), (e), (f), (k), (l), (m) and (n). Second, the Court ruled that the Direct Purchasers will likely suffer material harm if discovery in this action is delayed for any significant period of time because [t]he earliest price-fixing allegations in this case are already more than twelve years old and [t]he risk that documents and deponents necessary to [the Direct Purchasers] case will become unavailable or that memories fade (or no longer exist) is palpable and increases the longer [the Direct Purchasers] must wait. Stay Denial Order, (o), (p), (q) Finally, because this is a horizontal price fixing case, a type of suit that constitutes a paradigmatic use of the class action device, and because of the similarity of this litigation to In re Linerboard Antitrust Litig., 305 F.3d 145, 152 (3d Cir. 2002) (an action where the economic analysis of John C. Beyer, Ph.D. was likewise important to the courts finding of common impact), the District Court found that Movants had not make a strong

showing that they are likely to succeed on the merits of their appeal. Stay Denial Order, (h), (i), (j). A month after the District Courts denial of a stay, on April 16, 2007, Movants filed the instant motion for a stay of discovery in this Court. III. ARGUMENT A. MOVANTS HAVE NOT MET THEIR HEAVY BURDEN OF DEMONSTRATING ENTITLEMENT TO A STAY The recommendation in the Advisory Committee Note to Rule 23(f) that the views of a trial court denying a stay motion should be heavily weighed by a court of appeals codifies what has long been the law in the Third Circuit governing stays generally. As this Court held in Gold v. Johns-Manville Corp., 723 F.2d 1068, 1075-76 (3d Cir. 1983), citing, Landis v. North American Co., 299 U.S. 248, 255 (1936), It is well settled that before a stay may be issued, the petitioner must demonstrate a clear case of hardship or inequity, if there is even a fair possibility that the stay would work damage on another party. The Court in Johns-Manville went on to explain: The power to stay proceedings is incidental to the power inherent in every court to schedule disposition of the cases on its docket so as to promote fair and efficient adjudication. How this can best be done is a decision properly vested in the trial courts. Landis v. North American Co., supra, 299 U.S. at 25455, 57 S.Ct. at 165-66. District courts have wide discretion in setting their own calendars, and when a matter is committed to 8

the discretion of those courts, it cannot be said, absent a patent abuse of that discretion, that a litigant's right to a particular result is clear and indisputable. Will v. Calvert Fire Ins. Co., 437 U.S. 655, 665-66, 98 S.Ct. 2552, 2558-59, 57 L.Ed.2d 504 (1978) . . . The understandable distress of Petitioners cannot be charged against the plaintiffs or the trial judges. Burdens are inevitable for all participants in . . . complex litigation . . . Those burdens, however, are not sufficient to overcome plaintiffs legitimate expectation that their cases be resolved without endless delay. Id. at 1077. See also United States v. Breyer, 41 F.3d 884, 893 (3d Cir. 1994) (Absent an abuse of discretion, a district courts decision [denying a motion to stay] will not be overturned. A stay is an extraordinary measure . . ..); Nutraquest, Inc. v. All American Phamaceutical & Natural Foods Corp., Civ. No. 06-186 (DRD), 2007 WL 121448, at *1 (D.N.J. Jan. 11, 2007) (citing Johns-Manville for proposition that clear case of hardship or inequity must be demonstrated by movant); Interwave Technology, Inc. v. Rockwell Automation, Inc., No. Civ. A. 05-0398, 2005 WL 1667591, at *2 (E.D.Pa. Jul. 14, 2005) (citing Breyer for proposition that stay is an extraordinary measure and movant must offer compelling reasons for its issuance); Grider v. Keystone Health Plan Cent., Inc., No. Civ. A. 2001CV-05641, 2004 WL 1047840, at *1 (E.D.Pa. May 4, 2004) (same).5
5

The law is the same in other circuits. As the Seventh Circuit observed in Lightfoot v. Walker, 797 F.2d. 505 (7th Cir. 1986), if a movants application is in effect an appeal of the district courts denial of the stay, we 9

In issuing the Stay Denial Order, the District Court exercised its inherent power to dispose of cases so as to promote their fair and efficient adjudication in a prudent manner, and used its best judgment to weigh competing interests and maintain an even balance. Breyer, 41 F.3d at 893; Landis v. North American Co., 299 U.S. at 254-55. The District Court identified the specific factors that it considered in evaluating and denying Movants motion to stay discovery. There is no basis to conclude that the District Court committed a patent abuse of its discretion in determining that Movants failed to establish a clear case of hardship or inequity or in refusing to conclude that Movants had a clear and indisputable legal right to a stay, no matter how much Movants may wish that the District Court had exercised its judgment differently. Gold v. Johns-Manville Corp., 723 F.2d at 1075-77 (citing Landis v. North American Co., 299 U.S. at 255 and Will v. Calvert

shall treat it as such and give the district courts action the appropriate deferenceWe shall not use Rule 8 [of the Federal Rules of Appellate Procedure] to undermine the district courts discretion. See also Long v. Robinson, 432 F.2d 977, 979 (4th Cir.1970) (internal citations omitted) (Ordinarily, when a party seeking a stay makes application to an appellate judge following the denial of a similar motion by a trial judge, the burden of persuasion is substantially greater than it was before the trial judge; the premise of this rule is that the motion for a stay has received full consideration by the trial judge). 10

Fire Ins. Co., 437 U.S. at 665-66). Such a showing was and still is entirely absent from the arguments that Movants offer in support of a stay. As demonstrated below, the District Courts denial of Movants motion to stay was not only well within its wide discretion, it was an eminently sensible exercise of that discretion. B. A STAY OF DISCOVERY IS UNNECESSARY AND UNJUSTIFIED BECAUSE THIS LITIGATION WILL CONTINUE REGARDLESS OF HOW THIS COURT RULES ON MOVANTS CLASS CERTIFICATION APPEAL As the District Court correctly found, there are no case dispositive issues pending or to be decided by this Court on Movants Rule 23(f) appeal. Regardless of how this Court rules on the 23(f) appeal, this lawsuit will be still be adjudicated on the merits of the claims asserted by proposed class representatives that sustained substantial damages as a result of Movants unlawful conspiracy to fix prices in the hydrogen peroxide industry. Stay Denial Order, (m), (n). Likewise, any ruling by this Court on class certification issues will have no effect on the opt-out action filed by the Conopco plaintiffs. Stay Denial Order, (c), (d), (e), (f). With or without class certification,

discovery by the Direct Purchasers and Conopco plaintiffs will cover essentially the same time period and will focus on the same conspiracy, the same witnesses, the same products, the same documents and the same 11

depositions. Stay Denial Order, (l), (m), (n) and n. 3 and 4.6 A stay of merits discovery would serve no purpose under these circumstances other than to delay the inevitable. Stay Denial Order, (n). Moreover, a stay would defeat the efficiency and economy of litigation that the District Court attempted to achieve through its Scheduling Order. Order, (r). C. THE DISTRICT COURT PROPERLY EXERCISED ITS DISCRETION IN DENYING MOVANTS MOTION TO STAY MERITS DISCOVERY IN THIS CASE Rule 23(f) was not intended as means to delay the progression of litigation. See, e.g., In re Sumitomo Copper Litig., 262 F.3d 134, 140 (2d Cir. 2001) (cautioning that litigants should not view Rule 23(f) as a vehicle to delay proceedings in the district court); Blair v. Equifax Check Servs., Inc., 181 F.3d 832, 835 (7th Cir. 1999) (Because stays will be infrequent, interlocutory appeals under Rule 23(f) should not unduly retard the pace of Stay Denial

While Movants do not address the fact that class representatives with substantial individual claims will aggressively pursue their claims through trial whatever the outcome of Movants Rule 23(f) appeal, Movants do attempt to belittle the opt-out action filed by the Conopco plaintiffs as too small and insignificant to make a difference in the District Courts calculus concerning how best to manage its docket. See Defendants Motion to Stay Merits Discovery Pending 23(f) Appeal of Class Certification Order (Motion) at 5; 15-16. However, that presumptuous argument was rejected by the District Court, which was well within its discretionary case management authority in assessing the practical significance of the non-class action litigation pending before it. 12

litigation.). See also Carey M. Erhard, Note, A Discussion of Interlocutory Review of Class Certification Orders Under Federal Rule of Civil Procedure 23(f), 51 Drake L. Rev. 151, 178 (2002) (The drafters intention that Rule 23(f) avoid the delay of other avenues of appeal is evidenced by the noautomatic-stay language in Rule 23(f)). While no clear method of analysis has been established for motions seeking stays under Rule 23(f), [m]ost courts employ an analysis similar to that used in motions for preliminary injunction or stays pending appeals of final judgments. Beattie v. CenturyTel Inc., No. 02-10277, 2006 WL

1722207, at *2 (E.D. Mich. June 20, 2006); see also In re Sumitomo Copper Litig , 262 F.3d at 140; Blair v. Equifax Check Servs., Inc., 181 F.3d at 835; Daniels v. City of New York, 138 F.Supp.2d 562, 564 (S.D.N.Y. 2001); West Tenn. Assoc. Builders v. City of Memphis, 138 F.Supp.2d 1015, 1027 (W.D. Tenn.2000). As the District Court did below, this Court may apply its own general standards for assessing motions to stay pending appeal. They are: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. Republic of Philippines v. Westinghouse Elec. Corp., 949 F. 2d 653, (3d Cir. 1991) (quotation marks omitted, quoting Hilton v. Braunskill, 481 U.S. 770,

13

777 (1987)); see also United States v. Carlin, No. 06-1906, 2006 WL 3208675, at *1 (E.D. Pa. Nov. 2, 2006) (same). Here, each of the relevant factors weighs decidedly against the broad stay of discovery sought by Movants. 1. There is No Irreparable Injury to Movants

Should discovery proceed in the manner set forth in the Scheduling Order, there is no possibility that Movants would be irreparably injured if they ultimately prevailed on their Rule 23(f) appeal. As set forth above, both the named direct purchaser plaintiffs and the opt-out action plaintiffs, Conopco, Inc. and Reckitt Bensicker, Inc., will continue to litigate their substantial individual claims regardless of how this Court ultimately rules on Movants appeal. This is not a case where denial of class status sounds the death knell of the litigation, because the representative plaintiffs claim is too small to justify the expense of litigation. See Blair v. Equifax Check Servs., Inc., 181 F.3d at 834 Given this practical reality, there is no conceivable injury to Movants if they are required to provide merits discovery in an uninterrupted fashion within the timeframe established in the Scheduling Order. Indeed, discovery on class certification issues ended long ago, and Movants offer only the most unenlightening speculation of how the scope of merits

14

discovery might differ if this Court were to ultimately reverse or narrow the District Courts Class Certification Order. See Motion at 10-12. By contrast, the District Court carefully considered Movants arguments but, after analyzing the particular facts and circumstances of this litigation, it drew a different conclusion as to how to avoid any purported inefficiency identified by Movants. Stay Denial Order, (d) and n.1. Among other things, the District Court found that (a) the period covered by the Conopco plaintiffs action was already shorter than the certified Class Period; (b) defendants marginal cost of producing any limited discovery that would not need to be produced in the absence of a class action was but a drop in the bucket that will be defendants costs to defend this case in its entirety; and (c) continued discovery during the Rule 23(f) period was particularly efficient because it would aid an expedient resolution of the case for all concerned. Stay Denial Order, (l) and n.3; (n) and n.4; and (r) and n.5. Movants have not shown that the District Court in any way abused its discretion in denying the stay of discovery that they have requested. Instead, what Movants present on appeal are subjective

15

disagreements with the conclusions reached by the District Court, which are insufficient to obtain a stay of discovery from a circuit court on appeal.7 It almost goes without saying that Movants disagree with the conclusion of many other courts too. As the court held in Beattie v. CenturyTel Inc., 2006 WL 1722207, at *5-6: [T]his case would continue in this Court in some form regardless of whether the court of appeals overturns the grant of class certification, which itself is far from clear under the circumstances . . . . To the extent that the costs of discovery form the basis of an irreparable injury claim, then the Court likely should balance the likelihood of success to a degree inversely proportional to that injury. See Family Trust Foundation of [Kentucky, Inc. v. Kentucky Judicial Conduct Commn, 388 F.3d 224, 227 (6th Cir. 2004)]. In the end, however, it appears that an entire stay of proceedings is not appropriate. There is no cause to prevent the plaintiffs from conducting discovery on that portion of the case that would likely survive any decision of the Sixth Circuit on interlocutory appeal. Only the portion of the Court's order setting notification deadlines should be stayed. While Movants repeatedly make bald and unsupported statements like Courts regularly stay merits discovery following certification of a appeals of class orders under Rule 23(f) (Motion at 2-3) and Stays pending Rule 23(f) appeals in the Third Circuit are the norm (Motion at 6), they have not identified and discussed any cases where the Third Circuit or any other circuit court issued a stay of discovery under Rule 23(f) after the district court denied the relief requested below. Nor have Movants cited any case granting a stay where, as here, the individual claims of the plaintiff class representatives are significant claims that would proceed regardless of the ultimate disposition of the class certification issue. And, of course, Movants cite no case granting a stay where there is, in addition to the class action, a parallel action alleging the same claim, based on the same conduct, and covering essentially the same time period, by substantial opt-out plaintiffs that exists and will proceed regardless of class certification. 16
7

(emphasis in original). While Movants and Respondents alike will incur costs during merits discovery in this case, it is well settled that such litigation costs do not rise to the level of irreparable injury so as to justify a stay. Daniels v. City of New York, 138 F.Supp.2d at 564 (quoting Hammerman v. Peacock, 623 F.Supp. 719, 721 (D.D.C. 1985)); Jayaraj v. Scappini, 66 F.3d 36, 39 (2d Cir.1995) (Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough). See also In re Lorazepam & Clorazepate Antitrust Litig., 208 F.R.D. at 6, citing, Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C.Cir.1985) (litigation expenses alone do not necessarily qualify as irreparable harm). 2. A Stay Would Cause Substantial Injury to Respondents

As the court observed in In re Lorazepam & Clorazepate Antitrust Litigation, 208 F.R.D. at 6, it may be true as a general matter that a delay in discovery itself constitutes substantial harm. Here, the District Court specifically held that the Respondents would suffer material harm if discovery in this action is delayed for any significant period of time because the allegations of price-fixing in this litigation are already more than twelve years old and there is a palpable risk that additional delay would cause

17

evidence to become unavailable and that memories would fade.8 Stay Denial Order, (o), (p), (q). At the same time, the District Court

recognized that denial of the motion to stay discovery would have no meaningful effect on Movants one way or the other. Stay Denial Order, (k), (n). Merits discovery was previously stayed in this litigation for approximately sixteen months pending the District Courts adjudication of Respondents motion for class certification. Such discovery commenced only recently by virtue of the District Courts February 20, 2007 Scheduling Order. As the District Court recognized in the Stay Denial Order, any further delay would substantially prejudice Respondents. Merits discovery should therefore commence and move forward in accordance with the Scheduling Order.

As Respondents noted in opposing Movants motion to stay in the District Court, this is not merely an academic concern. Although Movants blithely discount this important issue (see Motion at 13), one of the participants in the price-fixing conspiracy has already passed away, and the passage of additional time will no doubt see the departure or unavailability of additional witnesses, through death, retirement, termination, or relocation. The risk of delay to the orderly prosecution of this litigation and corresponding prejudice to Respondents is particularly acute here, where many of the key participants in Movants price-fixing conspiracy are based in Europe, so that the retirement or relocation of these conspirators beyond Movants control will make them difficult for Respondents to reach for discovery purposes. 18

3.

The Public Interest Lies Heavily in Respondents Favor

Movants, multi-national corporations that were adjudicated to have violated European and American antitrust laws,9 contend that a stay will serve the public interest by conserving judicial resources. But as the District Court properly found, this case will be litigated regardless of how the Third Circuit rules on the class certification issues under appeal, and an unnecessary delay of litigation would not promote judicial economy. By contrast, the public interest served by private actions brought to enforce the United States antitrust laws is well established and widely recognized. See, e.g., Hawaii v. Standard Oil Co., 405 U.S. 251, 262, 266 (1972); Pillsbury Co. v. Conboy, 459 U.S. 242, 262-53 (1983); Cumberland Farms, Inc. v. Browning-Ferris Industries, Inc., 120 F.R.D. 642, 645 (E.D. Pa. 1988). In In re Plastics Additives Antitrust Litigation, No. 03-2038, 2004 WL 2743591, at *5 (E.D. Pa. Nov. 29, 2004), the court succinctly reinforced this principle: Public interest considerations weigh against granting a stay of merit-based discovery. The publics interest in vigorously In addition to the E.C.s adjudication and fine, Solvay S.A. and Akzo Nobel Chemicals International, B.V. the foreign-based parent corporations of global chemical manufacturing enterprises operating in the United States were charged criminally with, and pleaded guilty to, fixing prices of hydrogen peroxide, in violation of Section 1 of the Sherman Act, 15 U.S.C. 1. See Exhibit A hereto at SA0002-0057. 19
9

enforcing national anti-trust laws through the expeditious resolution of a private antitrust litigation is particularly great. See Golden Quality Ice Cream [Co. v. Deerfield Specialty, 87 F.R.D. 53 58 (E.D. Pa. 1980)]; In re Residential Doors Antitrust Litigation , 900 F.Supp. 749, 756 (E.D. Pa. 1995)] (public interest prejudiced by delay in discovery proceedings in class action antitrust litigation). This interest is even greater when the nature of the litigation is a class action lawsuit, filed on behalf of nationwide consumers of a particular product over the course of more than a decade. Furthermore, the public also has a significant interest in ensuring the flow of this Courts judicial docket so that justice may be administered to the instant litigants, as well as all other litigants before this Court, in a timely fashion. The public interest in moving this long-delayed antitrust litigation to an expeditious resolution far outweighs any contrived reason cited by Movants in support of their motion to stay.10

Movants contend that their Rule 23(f) appeal implicates a dispositive issue that will govern both the scope of merits discovery and ultimately, the trial and resolution of these actions. Motion at 14. However, the cases cited by Movants stand merely for the proposition that a certified class tends to increase the stakes of litigation and places additional pressures on defendants. Id. (citing Blair v. Equifax Check Servs., Inc., 181 F.3d at 834 and Castano v. American Tobacco Co., 84 F.3d 734, 746 (5th Cir. 1996)). Movants cite no legal authority for the proposition that class certification is genuinely case dispositive or that the scope of merits discovery would differ in a meaningful way in the absence of a certified class of direct purchasers. As shown above, the District Court explicitly rejected this latter contention under the specific facts and circumstances of this litigation. 20

10

4.

Movants Face Imposing Obstacles On Appeal

The factors identified above constitute sufficient, independent grounds to deny Movants' motion for a stay. An added reason is Movants' failure to acknowledge the substantial obstacles they face on appeal. Third Circuit law relating to class certification standards in antitrust price-fixing cases is well established. The two landmark cases In re Linerboard Antitrust Litig., 305 F.3d 145, 152 (3d Cir. 2002) and Bogosian v. Gulf Oil Corp., 561 F.2d 434 (3d Cir. 1977) were relied upon and applied by the District Court in issuing its Class Certification Order. As in Linerboard itself, the economic analysis of John C. Beyer, Ph.D. was important to the District Courts finding of common impact. The District Court thus had ample support for its conclusion that Movants failed to make a strong showing of likely success on the merits of their Rule 23(f) appeal.11

In the District Court, Movants relied upon a purported statistical analysis of Rule 23(f) petitions rather than on the facts of their own case, an argument that the District Court found unconvincing. Stay Denial Order, (i), (j). While Movants retreat somewhat from that labored analysis in the instant motion, they continue to cite cases where denials of class certification were affirmed on appeal (under the deferential abuse of discretion standard) or where class certification rulings were only partially vacated or modified. See, e.g., Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154 (3d Cir. 2001) (denial of a class motion affirmed in securities action). In addition, this Court has expressly distinguished Newton and other substantively dissimilar actions from traditional pricefixing cases such as this. See Linerboard, 305 F.3d at 158); Johnston v. 21

11

This Court reviews a grant of class certification under an abuse of discretion standard and must decide whether the 23(a) prerequisites have been met, whether the district court correctly identified the issues involved and which are common, and whether it properly identified the comparative fairness and efficiency criteria. If the court's analysis on these points is correct, then, it is fair to say that we will ordinarily defer to its exercise of discretion embodied in the findings on predominance and superiority

HBO Film Mgmt. Inc., 265 F.3d 178 (3d Cir. 2001) (denial of class motion in securities fraud and RICO case affirmed). Two such decisions relied on by Movants were sui generis to the extent that they were clearly labeled by this Court as non-precedential (and therefore not appropriately cited as precedent). See Weisfeld v. Sun Chem. Corp., 84 Fed. Appx. 257 (3d Cir. 2004) (non-precedential) (affirming denial of class certification in case alleging companies conspired to not hire each others employees); Monahan v. City of Wilmington, 49 Fed. Appx. 383 (3d Cir. 2003) (non-precedential) (affirming denial of class motion in race discrimination case). Movants also cite cases that involved denials of class certification based on a lack of federal jurisdiction over the claims at issue. See SamuelBassett v. KIA Motors Am., Inc., 357 F.3d 392 (3d Cir. 2004) (consumer state law class action for damages based on allegedly defective automobile brake system; vacated and remanded for fact-finding on amount in controversy); De Asencio v. Tyson Foods, Inc., 342 F.3d 301 (3d Cir. 2003) (district court certified class wage and hour claims under federal and state law; Third Circuit held that supplemental jurisdiction over state law claim did not exist). By contrast, there is no question as to federal jurisdiction in this case. 22

Linerboard, 305 F.3d at 149-51 (citing Bogosian v. Gulf Oil Corp., 561 F.2d 434, 448 (3d Cir. 1977)). While it will certainly be for this Court to decide whether to affirm the District Court's class certification ruling, Movants have offered no convincing reason to believe that this Court should or would necessarily find that the District Court had abused its discretion in certifying a class of direct purchasers. They concede as much by inappropriately seeking a more expansive de novo review of the Class Certification Order (See Motion at 89) based on the questionable ground that the "District Court both misapprehended the proper legal standard for adjudicating class certification motions and then misapplied it. (See Motion 7-8). In meticulously applying Linerboard and Begosian to the facts of this case, the District Court conformed to the law rather than departed from it. Outside of this baseless contention, Movants premise their argument relating to the likely success of their 23(f) appeal on the hope that this Court will abandon the principle of stare decisis in favor of what Movants contend to be different (and, by implication, better) approaches to class certification followed in other Circuits. However, there is nothing in the oneline Order granting an appeal of the Class Certification Order (Davis Decl., Ex. A) to suggest that this Court, influenced by other Circuits to change

23

longstanding Third Circuit law, has agreed to clarify the proper standard for class certification in the Third Circuit for horizontal price-fixing cases. See Motion at 7-8. Movants do not address the other possibility that this Court will use the occasion of its Rule 23(f) review to reinforce the class action standards set forth in Linerboard and Bogosian, and to show how approaches taken recently by other circuits are in harmony with traditional Third Circuit jurisprudence.12
12

Movants rely upon an analytically confused and hostile reading of two cases that they claim foreshadow a new, restrictive legal standard for class certification motions in the Third Circuit under Rule 23 of the Federal Rules of Civil Procedure. The first of these cases, In re Initial Public Offering Sec. Litig. (IPO), 471 F.3d 24 (2d Cir. 2006), merely brought the Second Circuit into line with established practice in this Circuit, see id. at 38 (citing Newton v. Merrill Lynch, Pierce, Fenner & Smith, 259 F.3d 154, 166 (3d Cir. 2001)), after the Second Circuits previous case law had created a misleading appearance of unduly relaxed class action standards, see id. at 35-37. As the Second Circuit stressed, however, the judge resolves factual disputes relevant to each Rule 23 requirement. [I]n making that determination, a district judge should not assess any aspect of the merits unrelated to a Rule 23 requirement. Id. (emphasis supplied). Interpreting IPO, the Southern District of New York in Hnot v. Willis Group Holdings Ltd., -- F.R.D. --, 2007 WL 749675, at *5-*6 (S.D.N.Y. Mar. 8, 2007), did weigh expert evidence to the limited degree necessary to decide class certification issues, but it explicitly refused to referee a statistical dueling of experts or to decide which expert report is most credible, which would have required an adjudication on the merits, a practice In re IPO specifically cautions against. While Movants in this litigation claim erroneously that the District Court altogether ignore[d] defendants expert evidence because it was in 24

As the District Court properly held, the possibility that Movants hope for is not so substantial to warrant a stay of merits discovery under the facts of this case, particularly given the highly deferential abuse of discretion standard that Movants must meet as they proceed with prosecution of their appeal. With similar implausibility, Movants also contend that this Courts grant of defendants Petition, standing alone, demonstrates that there is a substantial likelihood that defendants will obtain at least some relief in this

conflict with plaintiffs evidence (see Motion at 8), the class certification analysis undertaken by the District Court was consistent with and satisfied the IPO standards as interpreted in Hnot. See Hydrogen Peroxide, 240 F.R.D. at 170 (weighing expert testimony as part of limited inquiry into merits at class certification stage of litigation). Movants also cite the Eighth Circuits decision in Blades v. Monsanto Co., 400 F.3d 562, 575 (8th Cir. 2005) as an example of a case post-dating the 2003 amendments to Rule 23 that they believe might convince this Court to deviate from its established standards for class certification in price-fixing cases. Notably, under an abuse of discretion standard, the court in Blades affirmed the denial of class certification in a readily distinguishable case alleging price-fixing of a non-homogeneous product with significant regional pricing dynamics and variations. See id. at 400 F.3d at 572-74. Such circumstances are not present in this case. Far from presaging any repudiation of this Courts Linerboard decision, the Eighth Circuit in Blades reaffirmed the vitality of Linerboard, and it relied on Linerboard extensively (and in some instances exclusively) in its decision. Blades stands merely for the proposition that the district court in that case did not abuse its discretion in holding that highly unique facts and market conditions (not present here) failed to satisfy the Linerboard standard, which the Eighth Circuit recognized as the prevailing class certification analysis. See Blades, 400 F.3d at 573-75. 25

Court that will significantly alter the scope of merits discovery in this case. Motion at 9 (emphasis supplied). The Linerboard experience demonstrates the spuriousness of this argument. There, the district court certified a plaintiff class in a price-fixing case, carefully applying (as the District Court did here) the traditional standards set by the Third Circuit for class certification in cases of this type. See In re Linerboard Antitrust Litig., 203 F.R.D. 197 (E.D. Pa. 2001). The defendants in Linerboard proceeded to file a Rule 23(f) petition, urging this Court to abandon the Bogosian standards, which defendants derided as outmoded and in need of contemporary revision. This Court granted the petition, but it ultimately affirmed the district courts class certification decision and reaffirmed the Courts seminal Bogosian decision. See In re Linerboard Antitrust Litig., 305 F.3d 145 (3d Cir. 2002). One of the factors that may have influenced this Court to grant Movants Rule 23(f) petition is facilitation of the orderly development of the law. Given the frequency of arguments made by obdurate antitrust defendants who fail to acknowledge the clear import of controlling precedent, it would be beneficial for the parties and district court judges if this Court explicitly and unambiguously reaffirmed its fundamentally sound rulings in Linerboard and Bogosian. See Blair v. Equifax Check Servs., Inc.,

26

181 F.3d at 835 (When the justification for interlocutory review is contributing to development of the law, it is less important to show that the district judges decision is shaky. Law may develop through affirmances as well as through reversals). While Movants entire 23(f) appeal is based on the premise that the District Courts Class Certification Order was shaky, in moving to stay merits discovery, Movants rely on cases that, at best, have only a tottering application to this litigation. As perhaps the most egregious example, in In re Lorazepam & Clorazepate Antitrust Litig., 208 F.R.D. 1 (D.D.C. 2002), the court stayed discovery for the following reasons: (1) the appeal involved a dispositive issue of standing, thereby implicating federal antitrust policies that the Supreme Court articulated in Illinois Brick Co. v. Illinois, 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977) and raising the possibility that a reversal by the D.C. Circuit would moot every deposition taken, motion argued, document produced, and interrogatory answered during the appellate period. Id. at 4 (emphasis added); (2) the matters under appeal were comprised of issues of first impression Id; and (3) because the parties had previously stipulated to a stay of discovery pending the outcome of settlement discussions and because the Court of Appeals was expected to

27

rule on the appeal within approximately two months, any potential harm created by a short stay was de minimis. Id. at *6. Here, by contrast, the class certification issues raised by Movants on appeal are not new or unique, no ruling that comes from this appeal will be dispositive of this litigation and moot all discovery undertaken, and the stay requested by Movants is indefinite, not limited in duration. The Lorazepam & Clorazepate decision is strikingly inapposite. Numerous other cases cited by Movants are equally inapplicable or non-supportive of the propositions for which they are cited. This is a traditional Sherman Act price-fixing action for which Linerboard, Bogosian and numerous district court decisions have created a rock-solid foundation of legal jurisprudence in the Third Circuit. See Exhibit C, Decisions Granting Class Certification in Price Fixing and Market Allocation Actions in District Courts Within Third Circuit. In this context, cases involving other laws (particularly proposed class actions asserting claims under the sometimes divergent state laws), different and varying legal theories (primarily arising under the intricacies of state law) and divergent public policy considerations are not nearly so well suited for class action treatment. Yet Movants cite such cases indiscriminately to support misdirected claims

28

about the frequency with which cases under Rule 23(f) review have resulted in rulings favorable to the party opposing class certification.13 IV. CONCLUSION For the reasons set forth above, this Court should defer to the District Courts sound exercise of its discretion in denying Movants motion to stay merits discovery in this action. Even in the absence of such deference, Movants have not satisfied this Courts standards for stays of litigation, and this case does not justify a discretionary stay of discovery under Rule 23(f) of the Federal Rules of Civil Procedure. For all the reasons expressed above, Respondents request this Court to deny Movants motion to stay merits discovery. As set forth above, cases cited by Movants involve situations where the denial of class certification was affirmed in the context of a Rule 23(f) appeal, which is unremarkable in view of the highly deferential abuse of discretion standard applicable to such appeals. The cases do not support the premise they are cited for, i.e., that the Courts of Appeals routinely reverse class certification rulings. Other decisions cited by Movants involved remands of class certification orders directing the respective district court to more fully explain the rationale for their decisions. See, e.g., Beck v. Maximus, Inc., 457 F.3d 291 (3d Cir. 2006) (consumer class action alleging violations of Fair Debt Collection Practices Act, remanded because district court did not adequately explain why the plaintiff satisfied the typicality requirement of Rule 23(a)(2)); Wachtel v. Guardian Life Ins. Co. of America, 453 F.3d 179 (3d Cir. 2006) (ERISA class action vacated and remanded for district court to more clearly define claims, issues or defenses to be treated on class basis).
13

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Respectfully submitted, Dated: April 26, 2007 BOLOGNESE & ASSOCIATES LLC By: Anthony J. Bolognese Joshua H. Grabar John G. Narkin One Penn Center 1617 JFK Blvd., Suite 650 Philadelphia, PA 19103 Telephone: (215) 814-6750 Facsimile: (215) 814-6764 Robert N. Kaplan Gregory Arenson Jason Zweig KAPLAN FOX & KILSHEIMER LLP 805 Third Avenue, 22nd Floor New York, NY 10022 (212) 687-1980 (212) 687-7114 (fax) Steven A. Kanner William H. London Douglas A. Millen Robert J. Wozniak FREED KANNER LONDON & MILLEN, LLC 2201 Waukegan Road, Suite 130 Bannockburn, IL 60015 Telephone: (224) 632-4500 Facsimile: (224) 632-4519

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Michael D. Hausfeld William P. Butterfield Reena Gambhir COHEN MILSTEIN HAUSFELD & TOLL, PLLC 1100 New York Avenue, N.W. West Tower, Suite 500 Washington, DC 20005 Telephone: (202) 408-4600 Facsimile: (202) 408-4699 Respondents Co-Lead Counsel

31

DECISIONS GRANTING CLASS CERTIFICATION IN PRICE-FIXING AND MARKET-ALLOCATION ACTIONS IN DISTRICT COURTS WITHIN THE THIRD CIRCUIT 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. In re Hydrogen Peroxide Antitrust Litig, 240 F.R.D. 163 (E.D. Pa. 2007) (Dalzell, J.) In re Bulk Extruded Graphite Prods. Antitrust Litig., 2006 WL 891362 (D.N.J. Apr. 4, 2006) (Walls, J.) In re Microcrystalline Cellulose Antitrust Litig., 218 F.R.D. 79 (E.D. Pa. 2003) (ONeill, J.) In re Graphite Electrodes Antitrust Litigation, File No. 97-4182 (E.D. Pa. Feb. 26, 2003) In re Mercedes-Benz Antitrust Litig., 213 F.R.D. 180 (D.N.J. 2003) (Wolin, J.) In re Linerboard Antitrust Litig., 203 F.R.D. 197 (E.D. Pa. 2001) (Dubois, J.), affd 305 F.2d 145 (3d Cir. 2002) In re Flat Glass Antitrust Litig., 191 F.R.D. 472 (W.D.Pa. 1999) (Ziegler, C.J.) In re Plastic Cutlery Antitrust Litig., 1998 WL 135703 (E.D. Pa. Mar. 20, 1998) (McGlynn, J.) Jerry Enterprises of Gloucester County, Inc. v. Allied Beverage Group, LLC, 178 F.R.D. 437 (D.N.J. 1998) (Orlosfky, J.) Lumco Indus. Inc. v. Jeld-Wen, Inc., 171 F.R.D. 168 (E.D. Pa. 1997) (Broderick, J.) In re Residential Doors Antitrust Litigation, 171 F.R.D. 168 (E.D.Pa. 1997) In re Industrial Silicon Antitrust Litig., 1996 WL 812935 (W.D.Pa. Dec. 18, 1996) (Lancaster, J.)

13.

Petruzzis IGA Supermarkets v. Darling-Delaware Co., Inc., 1992 WL 212226 (M.D. Pa. 1992) and 1992 U.S. Dist. LEXIS 13050 (M.D. Pa. 1992) Cumberland Farms, Inc. v. Browning-Ferris Indus., Inc., 120 F.R.D. 642 (E.D. Pa. 1988) (Bechtle, C.J.) In re Chlorine & Caustic Soda Antitrust Litig., 116 F.R.D. 622 (E.D. Pa. 1987) (Bechtle, C.J.) Fisher Bros. v. Mueller Brass Co., 102 F.R.D. 570 (E.D. Pa. 1984) (Shapiro, J.) In re Glassine and Greaseproof Paper Antitrust Litig., 88 F.R.D. 302 (E.D. Pa. 1980) (Pollak, J.) In re Fine Paper Antitrust Litig., 82 F.R.D. 143 (E.D. Pa. 1979), affd, 685 F.2d 810 (3d Cir. 1982) (McGlynn, J.) Hedges Enters., Inc. v. Continental Group, Inc., 81 F.R.D. 461 (E.D. Pa. 1979) (Bechtle, J.) Axelrod v. Saks and Co., 77 F.R.D. 441 (E.D. Pa. 1978) (Loungo, J.) Bogosian v. Gulf Oil Corp. 561 F.2d 434 (3rd Cir. 1977) Chevalier v. Baird Savings Assn, 72 F.R.D. 140 (E.D. Pa. 1976) In re Sugar Indus. Antitrust Litig., 73 F.R.D. 322 (E.D. Pa. 1976) (Cahn, J.) Sommers v. Abraham Lincoln Fed. Sav. & Loan Assn, 66 F.R.D. 581 (E.D. Pa. 1975) (Newcomer, J.) Sol S. Turnoff Drug Distribs., Inc. v. N.V. Nederlandsche Combinatie Voor Chemische Industries, 51 F.R.D. 227 (E.D. Pa. 1970) (Wood, J.) City of Philadelphia v. Emhart Corp., 50 F.R.D. 232 (E.D. Pa. 1970) (Wood, J).

14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26.