The opinion of the court was delivered by: Decker, District Judge.
Pursuant to 28 U.S.C. § 1407, more than forty separate
antitrust actions have been transferred to this court for
consolidated discovery and pretrial proceedings. Originally
instituted in eight judicial districts, the private treble damage
suits seek compensation for alleged conspiracies which inflated
the prices for children's editions of library books. The
plaintiffs, who are largely state and local governments, claim to
have been overcharged as a result of either (1) a horizontal
agreement among the industry's book publishers, or (2) a series
of vertical conspiracies between each publisher and its
Under F.R.C.P. 23(b)(3), the attorneys general for several
states claim to represent the public libraries, school districts,
and boards of education in their respective jurisdictions.
Similarly, the School District and the City of Philadelphia
purport to represent a class composed of the 1324 largest public
libraries and school districts in the nation. Although most of
the antitrust actions may be returned eventually to their
transferor courts for trial, the Judicial Panel on Multidistrict
Litigation has ruled that the transferee court should decide
class action questions. In Re Plumbing Fixture Cases, D.C.,
298 F. Supp. 484 (December 27, 1968).
The congruence of issues in each class action request is
remarkable. The underlying conspiracies, the accused defendants,
and the aggrieved plaintiffs stand in virtually identical
positions. Therefore, except as otherwise indicated, the opinion
will discuss all motions collectively.
Initially, a class action must satisfy the four prerequisites
specified in F.R.Civ.P. 23(a).*fn1 First, since the class members
number in the hundreds in each action, joinder is impracticable.
See, e.g., Cypress v. Newport News G. & N. Hospital Ass'n,
375 F.2d 648 (4th Cir. 1967); Clemens v. Central R. Co.
of N.J., 264 F. Supp. 551 (E.D.Pa. 1967); Bowe v.
Colgate-Palmolive Co., 272 F. Supp. 332 (S.D.Ind. 1967). Second,
questions of law and fact are common to the class because the
alleged conspiracies inflated the prices charged all purchasers
of library editions.*fn2 Third, the claims of the representative
parties are typical of the claims of the class because, having
identical interests, all plaintiffs will offer the same evidence
to prove the illegal conspiracies. See, e.g., Booth v. General
Dynamics Corp., 264 F. Supp. 465 (N.D.Ill. 1967); Collins v.
Bolton, 287 F. Supp. 393, 397 (N.D.Ill. 1968). Compare City of
Chicago v. Allen Bradley Co., 32 F.R.D. 448, 451 (N.D.Ill. 1963).
Finally, the representative parties*fn3 will fairly and adequately
protect the interests of each class. Having purchased substantial
quantities of library books, the named plaintiffs may be expected
to pursue the case diligently and thoroughly. Defendants do not
question the technical competence of plaintiffs' attorneys. See
Siegel v. Chicken Delight, Inc., 271 F. Supp. 722, 727-728
In addition to these prerequisites, F.R.C.P. 23(b)(3) requires
"questions of law or fact common to the members of
the class predominate over any questions affecting
only individual members, and that a class action is
superior to other available methods for the fair and
efficient adjudication of the controversy."*fn4
Before analyzing these two factors, however, the opinion will
describe more fully the litigation's factual setting. Then,
detailed analyses of the common questions and of the superiority
of the requested class actions will be made. The next section
will consider the distinctive problems presented by the national
suit. Finally, various administrative details will be explained.
I. State-Wide Class Actions
After a Senate investigation into this pricing system, the
Justice Department instituted grand jury proceedings in 1966.
Although the federal government decided not to seek criminal
indictments, it obtained consent judgments in 1967 against
eighteen separate publishers, each of whom agreed not to fix
prices for the next five years.
The single most important issue is whether the defendants'
conspiratorial agreements actually existed. Offering the same
facts, all class members will strive to establish a national
conspiracy among the publishers.*fn6
The Justice Department's civil actions only charged vertical
conspiracies. The defendants therefore prophesy that the
libraries and schools can only prove conspiracies between each
publisher and its wholesalers. Nevertheless, a common core of
questions will persist. Having purchased titles from most of the
publishers, each class member will need to establish all of these
conspiracies in order to be fully compensated. Regardless of
which plaintiff presents the evidence, the same facts will
establish the defendants' liability.*fn7 The thousands of purchasers
will then be able to recover from whichever publisher-wholesaler
combination handled the particular titles that were bought.
Besides the overriding conspiracy question, each class member
stands in an identical position with respect to the following
issues: (1) whether prices were actually inflated, (2) whether
the higher prices resulted from the illegal agreements, (3)
whether defendants fraudulently concealed the conspiracies, thus
tolling the statute of limitations, and (4) whether library books
are "unique" products.*fn8 See Eisen v. Carlisle and Jacquelin,
391 F.2d 555, 565, 566 (2nd Cir.
1968); Philadelphia Electric Co. v. Anaconda American Brass Co.,
43 F.R.D. 452, 458 (E.D.Pa. 1968).
The predominance of common questions contrasts sharply with the
limited individual issues. Depending on the volume of purchases,
each class member will need to establish his own damages. But, as
stated in Dolgow v. Anderson, 43 F.R.D. 472, 490 (E.D.N.Y. 1968):
"The common issues need not be dispositive of the entire
litigation." See, e.g., Kronenberg v. Hotel Governor Clinton,
Inc., 41 F.R.D. 42, 45 (S.D.N.Y. 1966); Brennan v. Midwestern
United Life Ins. Co., 259 F. Supp. 673, 684 (N.D.Ind. 1966).
Compare Zeigler v. Gibralter Life Ins. Co., 43 F.R.D. 169 (D.S.D.
1967); Iowa v. Union Asphalt and Roadoils, Inc., 281 F. Supp. 391,
402 (S.D.Iowa 1968).
If illegal conspiracies raised prices to noncompetitive levels,
the purchasers were affected in the same manner and to the same
extent. The common resolution of the preceding pervasive issues
may therefore avoid the necessity for the parties' continual
relitigation of the questions. Challenged by identical evidence,
the defendants need not be subject to judgments which may vary
according to the forum in which suit was instituted.
B. Fair and Efficient Adjudication
Though common questions overshadow individual issues, F.R.C.P.
23(b)(3) requires that a class action also be the superior means
of litigation. Since each controversy involves a common core of
identical questions, the efficiency of a class action is
apparent. See Hohmann v. Packard Instrument Co., 399 F.2d 711,
715 (7th Cir. 1968). In addition, five mutually reinforcing
factors demonstrate the superiority of class actions.
First, since many plaintiffs only purchased small quantities of
the reinforced editions, most individual class members have
little incentive to sue alone. Their financial claims do not
justify the expense of complex antitrust litigation, especially
in light of the defendants' persistent efforts to prevent
document discovery. In Weeks v. Bareco Oil Co., 125 F.2d 84, 90
(7th Cir. 1941), the Seventh Circuit explained:
"To permit the defendants to contest liability with
each claimant in a single, separate suit, would, in
many cases give defendants an advantage which would
be almost equivalent to closing the door of justice
to all small claimants. ...