Blawgletter®

JPML in Cambridge Thursday

 
Austin Hall, home of the Ames Courtroom.

The Judicial Panel on Multidistrict Litigation sets up shop at Harvard Law School on November 19. 

Their Honors will hear argument on motions to centralize, in ONE district, cases pending in MULTIPLE districts. 

The matters up on Thursday:

SECTION A

MATTERS DESIGNATED FOR ORAL ARGUMENT

MDL No. 2103 -- IN RE: KENTUCKY GRILLED CHICKEN COUPON MARKETING AND SALES PRACTICES LITIGATION

Motion of defendants KFC Corp. and Yum! Brands, Inc., for centralization of the following actions in the United States District Court for the Northern District of Illinois or, in the alternative, the United States District Court for the Western District of Kentucky:

Central District of California

James Asanuma, et al. v. KFC Corp., et al., C.A. No. 2:09-5246

Northern District of California

Daleen Brown v. KFC Corp., C.A. No. 3:09-3269

Northern District of Illinois

Christine Doering v. KFC Corp., C.A. No. 1:09-4166

Eastern District of Michigan

Kay Ready v. KFC Corp., C.A. No. 2:09-12827

MDL No. 2104 -- IN RE: IKO ROOFING SHINGLE PRODUCTS LIABILITY LITIGATION

Motion of defendants IKO Manufacturing, Inc.; IKO Chicago, Inc.; and IKO Pacific, Inc., for centralization of the following actions in the United States District Court for the Northern District of Illinois:

Northern District of Illinois

Pamela D. McNeil, et al. v. IKO Manufacturing, Inc., et al., C.A. No. 1:09-4443

District of New Jersey

Debra Zanetti v. IKO Manufacturing, Inc., C.A. No. 2:09-2017

Western District of New York

Gerald P. Czuba, et al. v. IKO Manufacturing, Inc., et al., C.A. No. 1:09-409

Western District of Washington

Michael Hight, et al. v. IKO Manufacturing, Inc., et al., C.A. No. 2:09-887

MDL No. 2105 -- IN RE: RITE AID CORP. WAGE AND HOUR EMPLOYMENT PRACTICES LITIGATION

Motion of plaintiffs James Fisher; Justin Torres; Robert T. Vasvari; Shirley Craig; Rachel Harriman; Deanna Johnson; Lisa Laun; Deshawn Powell; Eric Rosen; John MacDonald; Michael Veri; and John Kuhl, Sr., for centralization of the following actions in the United States District Court for the Middle District of Pennsylvania:

District of Maryland

James Fisher v. Rite Aid Corp., et al., C.A. No. 1:09-1909

District of New Jersey

Justin Torres v. Rite Aid Corp., C.A. No. 3:09-2922

Southern District of New York

Yatram Indergit v. Rite Aid Corp., et al., C.A. No. 1:08-9361

Angel Naula, et al. v. Rite Aid of New York, Inc., C.A. No. 1:08-11364

Northern District of Ohio

Robert T. Vasvari v. Rite Aid Corp., et al., C.A. No. 4:09-1699

Middle District of Pennsylvania

Morgan Jackson, et al. v. Rite Aid Corp., et al., C.A. No. 1:09-1063

Shirley Craig v. Rite Aid Corp., et al., C.A. No. 4:08-2317

MDL No. 2106 -- IN RE: FONTAINEBLEAU LAS VEGAS CONTRACT LITIGATION

Motion of plaintiffs Avenue CLO Fund, Ltd., et al., for centralization of certain of the following actions in the United States District Court for the Southern District of New York and motion of Turnberry Residential Limited Partner, L.P., and Jeffrey Soffer for centralization of the following actions in the United States District Court for the Southern District of Florida:

Southern District of Florida

Fontainebleau Las Vegas LLC v. Bank of America, N.A., et al., C.A. No. 1:09-21879

District of Nevada

Avenue CLO Fund, Ltd., et al. v. Bank of America, N.A., et al., C.A. No. 2:09-1047

Southern District of New York

Deutsche Bank Trust Co. Americas v. Jeffrey Soffer, et al., C.A. No. 1:09-7089

MDL No. 2107 -- IN RE: BUDEPRION XL MARKETING AND SALES PRACTICES LITIGATION

Motion of defendants Teva Pharmaceuticals USA, Inc.; Teva Parenteral Medicines, Inc.; Anchen Pharmaceuticals, Inc.; and Impax Laboratories, Inc., for centralization of the following actions in the United States District Court for the Northern District of Texas or, in the alternative, the United States District Court for the Eastern District of Louisiana:

Central District of California

Laura Kelly v. Teva Pharmaceutical Industries Ltd., et al., C.A. No. 2:09-5348

Middle District of Florida

Sherri Henchenski, et al. v. Teva Pharmaceutical Industries Ltd., et al., C.A. No. 2:09-470

Eastern District of Louisiana

Andrew Morgan v. Teva Pharmaceutical Industries Ltd., et al., C.A. No. 2:09-4409

Eastern District of North Carolina

Camilla Snipes Weber v. Teva Pharmaceutical Industries Ltd., et al., C.A. No. 7:09-113

Eastern District of Pennsylvania

Steven Rosenfeld v. Teva Pharmaceuticals USA, Inc., et al., C.A. No. 2:09-2811

Northern District of Texas

Theresa L. Anderson v. Teva Pharmaceutical Industries Ltd., et al., C.A. No. 3:09-1200

MDL No 2108 -- IN RE: APPLEBEE’S WEIGHT WATCHERS MENU MARKETING AND SALES PRACTICES LITIGATION

Motion of defendants Applebee’s International, Inc.; DineEquity, Inc.; and Weight Watchers International, Inc., for centralization of the following actions in the United States District Court for the District of Kansas:

Northern District of Illinois

Jaime Jaramillo, et al. v. DineEquity, Inc., et al., C.A. No. 1:09-1983

District of Kansas

Sheree Shepard, et al. v. DineEquity, Inc., et al., C.A. No. 2:08-2416

Eastern District of Kentucky

Anita Kramer, et al. v. Applebee’s International, Inc., et al., C.A. No. 2:09-131

Southern District of Ohio

Pamela Curry v. Appelbee’s International, Inc., et al., C.A. No. 1:09-505

MDL No. 2109 -- IN RE: PLASMA-DERIVATIVE PROTEIN THERAPIES ANTITRUST LITIGATION

Motion of plaintiff Hospital Damas, Inc., for centralization of the following actions in the United States District Court for the Northern District of Illinois:

Northern District of Illinois

Hospital Damas, Inc. v. CSL Ltd., et al., C.A. No. 1:09-5130

Eastern District of Pennsylvania

Pemiscot Memorial Hospital v. CSL Ltd., et al., C.A. No. 2:09-3143

Solaris Health Systems v. Baxter International, Inc., et al., C.A. No. 2:09-3342

MDL No. 2110 -- IN RE: LUKE FOUT AND TODD WUERDEMAN LITIGATION

Motion of defendant CSX Transportation, Inc., for centralization of the following actions in the United States District Court for the Southern District of Ohio:

Northern District of Illinois

Todd Wuerdeman v. Illinois Central Railroad Co., C.A. No. 1:08-6043

Southern District of Ohio

Luke Fout v. CSX Transportation, Inc., et al., C.A. No. 1:08-721

Todd Wuerdeman v. CSX Transportation, Inc., et al., C.A. No. 1:08-746

MDL No. 2111 -- IN RE: AMERICAN EXPRESS CO. ANTI-STEERING RULES ANTITRUST LITIGATION

Motion of plaintiffs Lopez-Dejonge, Inc.; Parlor Corp.; JASA, Inc.; Italian Colors Restaurant; Cohen Rese Gallery, Inc.; Bar Hama, LLC; and Animal Land, Inc., for centralization of the following actions in the United States District Court for the Eastern District of New York or, in the alternative, the United States District Court for the Southern District of New York:

Eastern District of New York

Rite Aid Corp., et al. v. American Express Travel Related Services Co., Inc., et al., C.A. No. 1:08-2315

CVS Pharmacy, Inc. v. American Express Travel Related Services Co., Inc., et al., C.A. No. 1:08-2316

Walgreen Co. v. American Express Travel Related Services Co., Inc., et al., C.A. No. 1:08-2317

Bi-Lo, LLC v. American Express Travel Related Services Co., Inc., et al., C.A. No. 1:08-2380

H.E. Butt Grocery Co. v. American Express Travel Related Services Co., Inc., et al., C.A. No. 1:08-2406

Southern District of New York

Performance Labs, Inc., et al. v. American Express Co., et al., C.A. No. 1:06-2974

MDL No. 2112 -- IN RE: FLORIDA DEPARTMENT OF CORRECTIONS SEXUAL HARASSMENT BY INMATES LITIGATION

Motion of plaintiffs Donna Austin, et al., for centralization of the following actions in the United States District Court for the Northern District of Florida:

Middle District of Florida

Marsha Bennett, et al. v. Department of Corrections, State of Florida, C.A. No. 2:09-549

Tara Archer, et al. v. Department of Corrections, State of Florida, C.A. No. 3:09-864

Beebe L. Clark, et al. v. Department of Corrections, State of Florida, C.A. No. 5:09-358

Northern District of Florida

Donna Austin, et al. v. Department of Corrections, State of Florida, C.A. No. 4:09-97

Southern District of Florida

Eugenia V. Davis, et al. v. Department of Corrections, State of Florida, C.A. No. 1:09-22446

Cindy Baker, et al. v. Department of Corrections, State of Florida, C.A. No. 2:09-14281

MDL No. 2113 -- IN RE: AFTERMARKET AUTOMOTIVE SHEET METAL PARTS ANTITRUST LITIGATION

Motion of plaintiff Vehimax International, LLC, for centralization of the following actions in the United States District Court for the Central District of California or, in the alternative, the United States District Court for the Eastern District of Wisconsin:

Central District of California

Vehimax International, LLC v. Jui Li Enterprise Co., Ltd., et al., C.A. No. 2:09-6437

Eastern District of Wisconsin

Fond du Lac Bumper Exchange Inc. v. Jui Li Enterprise Co., Ltd., et al., C.A. No. 2:09-852

MDL No. 2115 -- IN RE: PFIZER INC. MARKETING AND SALES PRACTICES LITIGATION

Motion of plaintiff Kathleen Zafarana for centralization of the following actions in the United States District Court for the Eastern District of Pennsylvania:

District of Massachusetts

Michael Alan Caltieri, etc. v. Pfizer Inc., et al., C.A. No. 1:09-11480

Eastern District of Pennsylvania

Stefan Kruszewski, etc. v. Pfizer Inc., C.A. No. 2:07-4106

Kathleen Zafarana v. Pfizer Inc., et al., C.A. No. 2:09-4026

MDL No. 2116 -- IN RE: APPLE IPHONE 3G AND 3G-S “MMS” MARKETING AND SALES PRACTICES LITIGATION

Motion of defendant AT&T Mobility, LLC, for centralization of certain of the following actions in the United States District Court for the Eastern District of Louisiana or, in the alternative, the United States District Court for the Northern District of Ohio and motion of plaintiffs Philip Sterker and Arturo Molina for centralization of the following actions in the United States District Court for the Northern District of California or, in the alternative, the United States District Court for the Eastern District of Louisiana:

Central District of California

Aida Kamarian v. Apple, Inc., et al., C.A. No. 2:09-6590

Tim Williams, et al. v. Apple, Inc., et al., C.A. No. 2:09-6914

Northern District of California

Philip Sterker v. Apple, Inc., et al., C.A. No. 4:09-4242

Kevin Khoi Duy Tran v. Apple, Inc., et al., C.A. No. 5:09-4048

Southern District of California

Arturo Molina v. Apple, Inc., et al., C.A. No. 3:09-2032

Southern District of Illinois

Tim Meeker v. Apple, Inc., et al., C.A. No. 3:09-607

Eastern District of Louisiana

Christopher Carbine, et al. v. Apple, Inc., et al., C.A. No. 2:09-5470

District of Minnesota

Kyle Irving v. Apple, Inc., et al., C.A. No. 0:09-2613

Eastern District of Missouri

Meredith Goette, et al. v. Apple, Inc., et al., C.A. No. 4:09-1480

Northern District of Ohio

Michael Pietrangelo v. Apple, Inc., et al., C.A. No. 1:09-1992

Matthew Sullivan v. Apple, Inc., et al., C.A. No. 1:09-1993

Deborah Carr v. Apple, Inc., et al., C.A. No. 1:09-1996

MDL No. 2118 -- IN RE: CYCLOBENZAPRINE HYDROCHLORIDE EXTENDED-RELEASE CAPSULE PATENT LITIGATION

Motion of plaintiffs Eurand, Inc., et al., for centralization of the following actions in the United States District Court for the District of Delaware:

Central District of California

Eurand, Inc., et al. v. Anchen Pharmaceuticals, Inc., et al., C.A. No. 2:09-4931

Eurand, Inc., et al. v. Anchen Pharmaceuticals, Inc., et al., C.A. No. 8:09-1098

District of Delaware

Eurand, Inc., et al. v. Mylan Pharmaceuticals, Inc., et al., C.A. No. 1:08-889

Eurand, Inc., et al. v. Impax Laboratories, Inc., C.A. No. 1:09-18

Eurand, Inc., et al. v. Anchen Pharmaceuticals, Inc., et al., C.A. No. 1:09-492

Eurand, Inc., et al. v. Anchen Pharmaceuticals, Inc., et al., C.A. No. 1:09-715

MDL No. 2119 -- IN RE: MORTGAGE ELECTRONIC REGISTRATION SYSTEMS (MERS) LITIGATION

Motion of defendants CitiMortgage, Inc.; Mortgage Electronic Registration Systems, Inc.; MERSCORP, Inc.; National City Bank; National City Mortgage; National City Corp.; PNC Financial Services Group, Inc.; and AIG United Guaranty Corp. for centralization of the following actions in the United States District Court for the District of Arizona:

District of Arizona

Olga Cervantes, et al. v. Countrywide Home Loans, et al., C.A. No. 2:09-517

Jonathan E. Robinson, et al. v. GE Money Bank, et al., C.A. No. 4:09-227

Central District of California

Alfonso Vargas, et al. v. Countywide Home Loans, Inc., et al., C.A. No. 2:09-2309

District of Nevada

Josefa S. Lopez, et al. v. Executive Trustee Service, LLC, et al., C.A. No. 3:09-180

Aleta Rose Goodwin, et al. v. Executive Trustee Services, LLC, et al., C.A. No. 3:09-306

Joseph Green, et al. v. Countrywide Home Loans, Inc., et al., C.A. No. 3:09-374

Lacy J. Dalton, et al. v. CitiMortgage, Inc., et al., C.A. No. 3:09-534

MDL No. 2120 -- IN RE: PAMIDRONATE PRODUCTS LIABILITY LITIGATION

Order to show cause for centralization of certain claims in the following actions in a single United States district court:

District of District of Columbia

Laura Brooks v. Novartis Pharmaceuticals Corp., et al., C.A. No. 1:08-484

Dara Pace v. Novartis Pharmaceuticals Corp., et al., C.A. No. 1:08-634

Suzanne Eckblom, et al. v. Novartis Pharmaceuticals Corp., et al., C.A. No. 1:09-440

M. Margaret Patterson, et al. v. Novartis Pharmaceuticals Corp., et al., C.A. No. 1:09-441

Middle District of Florida

James E. Lockard, et al. v. Novartis Pharmaceuticals Corp., et al., C.A. No. 8:08-818

Susan Kahn v. Novartis Pharmaceuticals Corp., et al., C.A. No. 8:09-1529

Northern District of Florida

Ben J. Smith, et al. v. Novartis Pharmaceuticals Corp., et al., C.A. No. 1:09-13

Southern District of New York

Gary Dale Fry v. Novartis Pharmaceuticals Corp., et al., C.A. No. 1:09-7264

Evan Chandler v. Novartis Pharmaceuticals Corp., et al., C.A. No. 1:09-7265

MDL No. 2121 -- IN RE: FRETTED MUSICAL INSTRUMENTS ANTITRUST LITIGATION

Motion of plaintiff David Giambusso for centralization of the following actions in the United States District Court for the Southern District of California:

Central District of California

Allen Hale v. Guitar Center, Inc., et al., C.A. No. 2:09-6897

Mark O'Leary v. Guitar Center, Inc., et al., C.A. No. 2:09-7015

Southern District of California

David Giambusso v. National Association of Music Merchants, Inc., et al., C.A. No. 3:09-2002

Colby Giles v. Guitar Center, Inc., et al., C.A. No. 3:09-2146

Rory W. Collins v. Guitar Center, Inc., et al., C.A. No. 3:09-2151

David Keel v. Guitar Center, Inc., et al., C.A. No. 3:09-2156

Northern District of Illinois

Alex Teller v. Guitar Center, Inc., C.A. No. 1:09-6104

Our feed will attend The Game this weekend.

Khalid Shaikh Mohammed Also Faces Civil Charges

Blawgletter just got back from a short trip.  You may only guess at our surprise when we learned that high profile lawyers, including Rudolph Guiliani, oppose trying 9/11 planners for mass murder in any civilian court, let alone the one nearest Ground Zero. 

The foolish venuing, they argue, will give the likes of mastermind Khalid Shaikh Mohammed a better chance at acquittal -- presumably from the current odds of snowball's chance in hell to when monkeys fly out of Mr. Guiliani's flaring nostrils.  (Note:  Mr. Mohammed confessed to 9/11 -- and a whole bunch of other terrorist plots and attacks.  In court.  Without waterboarding.)

The critics also worry about grandstanding by terrorists.  By which we infer they mean more than usual grandstanding.  Because they do that a lot already.  In case you hadn't noticed.

The nay-sayers also decry the high cost of security in Foley Square and around Manhattan.  And yet the guy who runs the main local supplier of security, New York City, said fine.  Plus, the U.S. did try (and convict) an earlier group of terrorists in the same spot without incident.

But we really just want to point out that saying something bad could happen may cost little and may produce a big pay off in the event the prophecy comes true.  (Althought it also may cost a lot if it fits a pattern.  See Chicken Little; The Boy Who Cried Wolf.)  Pushing fear triggers loss aversion, which posits that humans strongly prefer avoiding losses to achieving gains.  (You'll feel much worse about losing $100 than you'll enjoy gaining $100.)

Finally, we wonder why Mr. Guiliani, et al., have said nothing about the civil cases, pending in the same courthouse, against Mr. Mohammed and other perpetrators of 9/11 attacks, for upwards of eight years.  See In re Terrorist Attacks on Sept. 11, 2001, No. 03-MDL-1570 (S.D.N.Y.).  Don't they count?

 Blawgletter welcomes your subscription.

Will $1.25B Intel/AMD Deal Prompt Chip Buyers to Sue?

 
You could put an eye out with that gavel.

Intel Corporation has made peace with Advanced Micro Devices, Inc., the companies announced in IDENTICAL press releases today (here and here).  The money part said:

[Blah blah blah,] and Intel will pay AMD $1.25 billion. Intel has also agreed to abide by a set of business practice provisions. As a result, AMD will drop all pending litigation including the case in U.S. District Court in Delaware and two cases pending in Japan. AMD will also withdraw all of its regulatory complaints worldwide. The agreement will be made public in filings with the Securities and Exchange Commission.

The pact won't end Intel's worries.  As the NYT reported:

[T]he Intel-A.M.D. settlement does not end separate antitrust actions against Intel by government bodies in Europe, Asia and the United States.

In May, the European Union hit Intel with a record $1.45 billion fine, which the company is appealing. Last week, New York’s attorney general, Andrew M. Cuomo, filed a wide-ranging antitrust suit against Intel. The Federal Trade Commission, which oversees some antitrust issues in the United States, has also been mulling whether to open formal proceedings against the company.

The $1,250,000,000.00 payment looks to Blawgletter like serious money.  Like Intel felt less sure of its position:  We.  Did.  Nothing.  Wrong.  Oh yeah?

Does forking over $1.25 big ones matter in a practical way? 

Yes.  It surely won't dim the ardor of AG Cuomo, et al., for their government cases, but it does suggest that Intel will work hard to settle them, too.  (Remember the tobacco companies, which caved everywhere after caving in Mississippi?)  It also implies weakness and a board-level decision to make love, not war.

While we suspect that Intel has taken steps before now to placate its big chip buyers -- Hewlett-Packard/Compaq, Dell, Gateway, IBM, Sony, Apple, eMachines, Acer, and Velocity, among others -- woe for Intel if it hasn't done so convincingly. 

Because the way to the courtroom looks clear. 

Ching -- da-dum, da-dum.

Supremes Listen to Fee Fight

The U.S. Supreme Court today heard what "fiduciary" means for an investment adviser when it charges mutual funds more than institutional investors pay for similar services.  See Transcript, Jones v. Harris Assocs. L.P. , No 08-586 (U.S. Nov. 2, 2009).  Briefs here.

Blawgletter predicts a close decision -- probably by one vote -- in favor of mutual fund investors, who claim the adviser breached its fiduciary duty under section 36(b) of the Investment Company Act.

The system for setting fees looks odd to us.  Mutual funds come into the world through the will of a Fidelity, a Templeton, a Vanguard, or some other outfit that aims to make money by selling its investment advice.  The money-making part comes in the form of adviser fees, which the creator/sponsor more or less negotiates with mutual fund offspring.  An independent board must okay the pay. 

But can the board, however independent, guard against too-high fees ex post facto?  In 1970, Congress feared not.  It said "the investment adviser . . . shall be deemed to have a fiduciary duty with respect to the receipt of compensation for services".  15 U.S.C. 80a-35(b).  Congress also created a cause of action to recover excessive fees.  And it provided that the board's clearing of the fees didn't end the inquiry but that the okay “shall be given such consideration by the court as is deemed appropriate under all the circumstances".  `15 U.S.C. 80a-35(b)(2).

The Justices grappled with the idea of a "fiduciary" duty that an independent board mediates but that a court may then review afresh.  Two of them -- Chief Justice Roberts and Justice Scalia -- vocally doubted the practicability of having judges second-guess board decisions.

Five others spoke more charitably about the excessive fee claim.  The petitioners, who lost in the district court and the Seventh Circuit, pointed out that the fees at issue far exceeded the fees that the same adviser charged its more savvy institutional investors for the same kinds of services.  Justices Breyer, GInsburg, Kennedy, Sotomayor, and Stevens seemed to want to give "fiduciary" more meaning than the courts below did.

Supremes Will Hear Big Civil Cases Next Monday

The U.S. Supreme Court will hear arguments in a pair of key civil cases on November 2.  One involves a claim to recover "excessive" fees under the Investment Company Act of 1940, Jones v. Harris Assocs., No. 08-586; and the other concerns states' ability to bar class actions asserting state law claims in federal court, Shady Grove Orthopedic Assoc. v. Allstate Ins. Co., No. 08-1008.  The cases strike Blawgletter as leading indicators of how far the Court will go this Term in cutting back civil claims.  We'll listen with interest on Monday.

MDL Panel Heads to Harvard for Nov. 19 Session

The Judicial Panel on Multidistrict Litigation ordered today that its seven members will gather for the next argument session on November 19 in Cambridge, Massachusetts.  Their Honors will hear from lawyers in, by Blawgletter's count, 16 potential MDL matters.

By the way, we confess to error in guessing the Panel would head south for this gathering.  You can't get a whole lot farther north in the lower 48 than the Ames Courtroom at Harvard Law School.

Further by the way, the numbers have come in for the last set of MDL cases.  By circuit and district court:

First Circuit

None

Second Circuit

Southern District of New York (2)
Western District of New York

Third Circuit

District of New Jersey

Fourth Circuit

District of Maryland

Fifth Circuit

Northern District of Texas (2)

Sixth Circuit

None

Seventh Circuit

Southern District of Illinois

Eighth Circuit

District of Minnesota
Western District of Missouri

Ninth Circuit

District of Arizona
Central District of California
Southern District of California

Tenth Circuit

None

Eleventh Circuit

Northern District of Alabama
Northern District of Georgia (2)

D.C. Circuit

None

Ice Maker Pleads to Customer-Allocation Charge, Agrees to Pay $9 Million

Arctic Glacier, the U.S. unit of a Manitoban outfit, pleaded guilty to violating section 1 of the Sherman Act.  It confessed to conspiring with rival ice-makers not to vie for customers in Detroit and southeastern Michigan.  The Antitrust Division of the U.S. Department of Justice said:

FOR IMMEDIATE RELEASE TUESDAY, OCTOBER 13, 2009 WWW.USDOJ.GOV

AT (202) 514-2007 TDD (202) 514-1888

MINNEAPOLIS PACKAGED-ICE COMPANY AGREES TO PLEAD GUILTY AND THREE FORMER EXECUTIVES PLEAD GUILTY TO CUSTOMER ALLOCATION CONSPIRACY Company Agrees To Pay $9 Million Criminal Fine WASHINGTON — A packaged-ice company, headquartered in St. Paul, Minn., has agreed to plead guilty and to pay a $9 million criminal fine for allocating customers, the Department of Justice announced today. In addition, three of the company’s former executives pleaded guilty for their roles in the conspiracy to allocate customers. According to a one-count felony charge filed under seal on Sept. 10, 2009, and unsealed today in the U.S. District Court in Cincinnati, Arctic Glacier International Inc. engaged in a conspiracy to suppress and eliminate competition by allocating packaged-ice customers in the Detroit metropolitan area and southeastern Michigan, beginning Jan. 1, 2001, and continuing until at least July 17, 2007. Under the plea agreement, which must be approved by the court, Arctic Glacier has agreed to cooperate with the Department’s ongoing investigation. According to separate one-count felony charges, also filed under seal on Sept. 10, 2009, and unsealed today in the U.S. District Court in Cincinnati, Frank Larson, Arctic Glacier’s former senior vice president of operations, and Keith Corbin, the company’s former vice president of sales and marketing, participated in the same conspiracy beginning at least as early as March 1, 2005, and continuing at least until July 17, 2007. According to an additional one-count felony charge filed under seal on Sept. 10, 2009, in the U.S. District Court in Cincinnati and unsealed today, Gary Cooley, the company’s former vice president of sales and marketing, also participated in the conspiracy from at least as early as June 1, 2006, until July 17, 2007. Under the three separate plea agreements, which must be approved by the court, the former executives have agreed to cooperate with the Department’s ongoing investigation. In court documents, the Department said that the three former executives and Arctic Glacier, conspired with another packaged-ice competitor to allocate packaged-ice customers in southeastern Michigan and the Detroit metropolitan areas. As a part of the conspiracy, Arctic Glacier, its former executives and other co-conspirators exchanged information for the purpose of monitoring and enforcing adherence to the agreed customer allocations and refrained from competing for the allocated customers. Arctic Glacier, Larson, Corbin and Cooley are each charged with allocating packaged-ice customers in violation of the Sherman Act, which carries a maximum penalty of 10 years in prison and a $1 million fine for individuals and a $100 million fine for corporations. The maximum fines may be increased to twice the gain derived from the crime or twice the loss suffered by the victims if either of those amounts is greater than the Sherman Act maximum fines. These charges stem from an ongoing antitrust investigation into the packaged-ice industry. As a part of the same investigation, Home City Ice Company pleaded guilty on June 17, 2008, for its participation in a conspiracy to allocate customers and territories in the packaged-ice industry. The investigation is being conducted by the Antitrust Division’s Cleveland Field Office and by FBI offices in Ann Arbor, Mich.; Indianapolis, Ind.; Dallas, Texas; and Cincinnati and Toledo, Ohio. Anyone with information concerning customer or territorial allocation agreements, or other anticompetitive conduct in the packaged-ice industry, should contact the Cleveland Field Office of the Antitrust Division at 216-687-8400.

Blawgletter notes that the Antitrust Division raided the other major ice-maker in the U.S., Reddy Ice of Dallas, earlier this year.  The Judicial Panel on Multidistrict Litigation centralized civil antitrust cases against Arctice Glacier, Home City Ice, and Reddy Ice in Detroit federal court.

 Our feed never chills competition. 

JPML Adds Judge, Sprinkles Cases Across U.S.; Heading South?

The Judicial Panel on Multidistrict Litigation met in Richmond on September 24.  It has so far issued 19 orders -- 14 granting transfer and centralization of multidistrict cases and five not.

Blawgletter couldn't help noting that the Panel has lately added a seventh member -- bringing it (at last) back to full strength.  U.S. District Judge David G. Trager has sat in the Eastern District of New York since 1993.  He took senior status in 2006.

Judge Trager joins JPML Chairman John G. Heyburn, II (W.D. Ky.) and members Robert L. Miller, Jr. (N.D. Ind.), David R. Hansen (8th Cir.), Frank C. Damrell, Jr. (E.D. Cal.), Kathryn H. Vratil (D. Kan.), and W. Royal Furgeson, Jr. (N.D. Tex.).

The MDL Panel hasn't posted notice of its next hearing session, but Blawgletter expects the venue to wander southward (and likely palm tree-ward) as autumn marches towards winter.

The September session produced these rulings:

Transferred Litigations (.pdfs)

MDL No. 2084 -- IN RE: AndroGel Antitrust Litigation (No. II)  MDL No. 2085 -- IN RE: Air Crash Near Clarence Center, New York, on February 12, 2009  MDL No. 2086 -- IN RE: Pre-Filled Propane Tank Marketing and Sales Practices Litigation  MDL No. 2087 -- IN RE: Hydroxycut Marketing and Sales Practices Litigation  MDL No. 2088 -- IN RE: Fairfield Greenwich Group Securities Litigation  MDL No. 2089 -- IN RE: Airline Baggage Fee Antitrust Litigation  MDL No. 2092 -- IN RE: Chantix (Varenicline) Products Liability Litigation  MDL No. 2093 -- IN RE: DIRECTV, Inc., Early Cancellation Fee Marketing and Sales Practices Litigation  MDL No. 2094 -- IN RE: Cheerios Marketing and Sales Practices Litigation  MDL No. 2096 -- IN RE: Zicam Cold Remedy Marketing and Sales Practices Litigation  MDL No. 2098 -- IN RE: Kitec Plumbing System Products Liability Litigation  MDL No. 2099 -- IN RE: Stanford Entities Securities Litigation  MDL No. 2100 -- IN RE: Yasmin and Yaz (Drospirenone) Marketing, Sales Practices and Products Liability Litigation  MDL No. 2102 -- IN RE: Sony Corp. SXRD Rear Projection Television Marketing, Sales Practices and Products Liability Litigation

	Litigations Not Transferred (.pdfs)

MDL No. 2091 -- IN RE: Children's Personal Care Products Liability Litigation [Denied]  MDL No. 2095 -- IN RE: Porcine Circovirus (PCV) Vaccine Products Patent Litigation [Denied]  MDL No. 2097 -- IN RE: Listerine Agent Cool Blue Products Liability Litigation [Denied]  MDL No. 2101 -- IN RE: Wells Fargo Checking Account Overdraft Litigation [Denied]  MDL No. 2114 -- IN RE: ProShares Securities Litigation [Motion Withdrawn]

 Our feed limits its remarks to the Panel to fewer than five minutes.

Antitrust Division Objects to Google Books Pact

Last week, the Antitrust Division of the U.S. Department of Justice filed a Statement of Interest of the United States of America Regarding Proposed Class Settlement in the Google Books case, The Authors Guild, Inc. v. Google, Inc., No. 05 Civ. 8136 (DC) (S.D.N.Y. Sept. 18, 2009).  The press release says:

WASHINGTON — The Department of Justice today advised the U.S. District Court for the Southern District of New York that while it should not accept the class action settlement in The Authors Guild Inc. et al. v. Google Inc. as proposed due to concerns of the United States regarding class action, copyright and antitrust law, the parties should be encouraged to continue their productive discussions to address those concerns. In its statement of interest filed with the court, the Department stated:

"Given the parties' express commitment to ongoing discussions to address concerns already raised and the possibility that such discussions could lead to a settlement agreement that could legally be approved by the Court, the public interest would best be served by direction from the Court encouraging the continuation of those discussions between the parties and, if the Court so chooses, by some direction as to those aspects of the Proposed Settlement that need to be improved. Because a properly structured settlement agreement in this case offers the potential for important societal benefits, the United States does not want the opportunity or momentum to be lost."

In its filing, the Department proposed that the parties consider a number of changes to the agreement that may help address the United States' concerns, including imposing limitations on the most open-ended provisions for future licensing, eliminating potential conflicts among class members, providing additional protections for unknown rights holders, addressing the concerns of foreign authors and publishers, eliminating the joint-pricing mechanisms among publishers and authors, and, whatever the settlement's ultimate scope, providing some mechanism by which Google's competitors can gain comparable access.

The settlement agreement between Google and the authors and publishers aims to resolve copyright infringement claims brought against Google by the Authors Guild and five major publishers in 2005 raised by Google's efforts to digitally scan books contained in several libraries and make them searchable on the Internet. The District Court's hearing on the proposed settlement is scheduled to take place on October 7, 2009.

Epson Rejoins Screen Cartel -- by Pleading Guilty

Epson Imaging Devices Corporation yesterday agreed to confess guilt, and pay a $26 million fine, for fixing prices on thin film transistor liquid-crystal display panels.

The plea deal follows ones by LG Display, Sharp, Chungwa Picture Tubes, and Hitachi Displays.

Section 1 wins again.