Opinion
Docket No. 3:04 MD 1631 (SRU), Civil Action No.: 3:05 CV 0463 (SRU).
September 6, 2005
Alan M. Wiseman, Joseph A. Ostoyich, Howrey LLP, Washington, DC.
Frank J. Silvestri, Jr., LEVETT ROCKWOOD P.C., Westport, Connecticut, COUNSEL FOR DEFENDANT MEADWESTVACO CORPORATION.
MEADWESTVACO CORPORATION'S REPLY MEMORANDUM IN FURTHER SUPPORT OF ITS MOTION FOR SANCTIONS
Rule 11 required Individual Plaintiffs to certify, when they signed their Complaint against MeadWestvaco, that: 1) they had already investigated the company, and 2) they had (or were likely to have) evidentiary support for their claim that the company participated in a conspiracy. Fed.R.Civ.P. 11(b)(3).
Individual Plaintiffs do not point to any facts regarding MeadWestvaco or any investigation they conducted of MeadWestvaco prior to suing it. That should not be surprising: they literally copied their Complaint verbatim from the original Gardella Complaint, typographical errors and all. See Ex. 1 (excerpt from Majority Plaintiffs' Mem. In Supp. of Their Petition To Be Lead Counsel), at 25 ("[t]he Three Z and Nies complaints are almost entirely carbon copies of the Gardella complaint, reflecting no significant additional work"); Ex. 2 (Lehman Decl.), ¶¶ 7-11 (comparing Individual Plaintiffs' Complaints to first-filed Gardella Complaint and noting that "the three complaints are substantially identical" and that "[e]ven some of the typographical errors are identical, which clearly demonstrates that the Three Z and Nies complaints were copied directly from the Gardella complaint.").
As a result, Individual Plaintiffs' Opposition Memorandum merely repeats, in eight bullet-points, allegations lodged by the Class Plaintiffs in their First Amended Consolidated Complaint. Opp. at 2-3. None of those allegations is based upon a fact that supports Individual (or Class) Plaintiffs' decision to drag MeadWestvaco into this lawsuit. Instead, as shown in MeadWestvaco's Rule 11 motion against Class Plaintiffs, they concern other defendants and are contradicted by the one factual source the Class Plaintiffs attached to their Opposition brief:
• The first four of Individual Plaintiffs' bullet-points reference the Class' allegations about other defendants ( e.g., UPM Kymmene and Myllykoski) who are involved in government investigations. There is no allegation (and there could not be one) that MeadWestvaco is involved in those investigations;
• The next two bullet-points concern allegations about the industry (that there are few producers and high barriers to entry) and that "Defendants" had numerous "opportunities" to collude. Again, however, those allegations contain no fact specific to MeadWestvaco that supports the allegation that it actually participated in the alleged conspiracy;
• The seventh bullet — referencing Class Plaintiffs' allegations in ¶¶ 81, 83-85, and 100 that "Defendants" dramatically increased prices in lockstep fashion in 1994-95 and again, a decade later, in 2004 despite market conditions that did not justify price increases — is not specific to MeadWestvaco and is alleged in only the most conclusory terms. There is a reason for that: the Pulp Paper Factbook shows that market conditions supported price increases at those times. See MeadWestvaco's Reply Mem. In Further Supp. of its Mot. For Sanctions, at 6 ("supply/demand relationship for coated papers improved sharply in mid-1994;" "commercial printing jumped nearly 8% in 1994;" "demand for coated papers continued strong") and n. 7 ("demand will be stronger;" "the market will be primed for price increases;" the cost of pulp "Hits 3-Year High").
• The final bullet-point references the Class Plaintiffs' allegations in ¶¶ 89-90 that MeadWestvaco "eliminated" production capacity in 2001-02 when, Individual Plaintiffs' claim, "there was no corresponding decrease in demand." The facts (as stated in the one industry publication cited by Class Plaintiffs in their Opposition brief) show otherwise. They show that "U.S. coated paper demand dropped 9.3% in 2001;" that imports skyrocketed from 11% of U.S. consumption in 1997 to 28% in 2003; and that this "combination of weak domestic demand and high level of imports caused U.S. paper prices to drop below cyclical lows in previous market downturns" throughout 2002 and 2003. MeadWestvaco's Reply Mem. In Further Supp. of its Mot. For Sanctions, at 5 n. 5.
The latter clause is, apparently, an assertion Individual Plaintiffs have made for the first time in their Opposition. The alleged capacity restriction is not in their Complaint at all, and the Class Plaintiffs' First Amended Complaint ¶¶ 89-95 do not allege that capacity reductions after September 11th were counter to market conditions. MeadWestvaco pointed this out in its Reply Mem. at 5 n. 6. As also noted in MeadWestvaco's Reply Mem. in Further Supp. of its Motion For Sanctions, at 5, public information shows that MeadWestvaco did not "eliminate" Publication Paper capacity in 2001-02. Rather, it shut down older, coated free sheet mills, but more than offset that decline by increasing its coated groundwood production capacity.
The Individual Plaintiffs hint that they are in possession of additional "facts," Opp. at 2, but leave MeadWestvaco and this Court to guess at what they are. The Second Circuit has held that counsel's failure to submit those facts strongly suggests they do not exist. E.g., Calloway v. Marvel Entm't Group, 854 F.2d 1452, 1471 (2d Cir. 1988) (affirming sanctions on attorney LeFlore: "By contrast, LeFlore never submitted an affidavit to the district court describing a pre-filing inquiry. That fact alone strongly suggests that no inquiry was made"), rev'd in part on other grounds sub. nom. Pavelic Leflore v. Marvel Entm't Group, 493 U.S. 120 (1989).
ARGUMENT
I. INDIVIDUAL PLAINTIFFS' FAILURE TO PERFORM A SUFFICIENT PRE-COMPLAINT INVESTIGATION OF MEADWESTVACO IS FATALIndividual Plaintiffs do not point to any specific investigation of MeadWestvaco they conducted (or any factual fruits of such an investigation they obtained) prior to filing their copycat Complaint. Their Opposition brief does not point to any factual support, for example, for their conclusion that MeadWestvaco was one of the "Defendants" which "engaged in a continuing agreement . . . to artificially raise, fix, maintain or stabilize the price of Publication Paper in the United States." Compl. ¶ 51.
The Individual Plaintiffs have thus failed to satisfy Rule 11's twin mandates. As stated by some of the very cases they cite in their Opposition Brief, Second Circuit courts have held that sanctions are appropriate when a plaintiff lodges only boilerplate allegations and has not conducted a sufficient pre-filing inquiry yielding facts to support its allegations. See O'Brien v. Alexander, 101 F.3d 1479, 1490 (2d Cir. 1996) (affirming district court's imposition of sanctions when one of plaintiff's representations was "totally lacking in evidentiary support"); Calloway v. Marvel Entm't Group, 854 F.2d 1452, 1470 (2d Cir. 1988) ("if the attorney either failed to make an objectively reasonable inquiry or pursued a claim for which no basis was disclosed by such an inquiry, then sanctions are appropriate"), rev'd in part on other grounds sub. nom. Pavelic Leflore v. Marvel Entm't Group, 493 U.S. 120 (1989); Oliveri v. Thompson, 803 F.2d 1265, 1280 (2d Cir. 1986) ("Since enactment of the amendment to rule 11 that requires more careful investigation and consideration of claims before including them in a complaint, such boilerplate allegations are not only improper, but subject to an appropriate sanction").
II. THE INDIVIDUAL PLAINTIFFS' LEGAL ARGUMENTS SHOULD BE REJECTED
A. Plaintiffs Must Adhere to Rule 11's Directives in Antitrust Cases
The Individual Plaintiffs, like many antitrust plaintiffs before them, sing a familiar refrain: they assert that Rule 11 sanctions should be rarely granted against antitrust plaintiffs because the proof is largely in the hands of the alleged conspirators. Opp. at 5. But MeadWestvaco does not argue that the Individual Plaintiffs must have secured the type of proof necessary to withstand a summary judgment motion. Rather, MeadWestvaco argues that Individual Plaintiffs must have performed a pre-filing inquiry that was "reasonable under the circumstances" and obtained facts (of evidentiary, or likely evidentiary, quality) sufficient to support their conspiracy claim. Fed.R.Civ.P. 11(b). There is no exemption from Rule 11 for antitrust cases, and Individual Plaintiffs' failure to investigate MeadWestvaco and find facts about MeadWestvaco crosses the line. That is especially true under these circumstances, in which Individual Plaintiffs had nearly one year to conduct an investigation between the publication of press clippings relating to other paper companies in May 2004 and the filing of their operative Complaint in March 2005. See Fed.R.Civ.P. 11 Advisory Committee Note (among factors indicating whether a reasonable inquiry was performed is "how much time for investigation was available to the signer"); Foster v. Michelin Tire Corp., 108 F.R.D. 412, 416 (C.D. Ill. 1985) (imposing Rule 11 sanctions where, eight months into litigation, plaintiff could not adequately summarize facts supporting his allegations).
"Bare conclusory allegations of conspiracy, without any facts or investigation, will violate Rule 11." Georgene M. Vairo, Rule 11 Sanctions: Case Law Perspectives and Preventive Measures, at 6-47 (2d ed. 1995). In Martin v. American Kennel Club, Inc., No. 87-C-2151, 1989 U.S. Dist. LEXIS 201 (N.D. Ill. Jan. 3, 1989), the court held that a Section One plaintiff had failed to conduct an adequate pre-filing factual inquiry. The court explained that under a notice pleading system, a pleader is not required to know all the facts before they file a complaint, but then emphasized that "there is a wide gulf between knowledge of `all the facts' (not required) and the `reasonable inquiry' that is required by Rule 11." Id. at *5; see also Frantz v. U.S. Powerlifting Fed., 836 F.2d 1063, 1068 (7th Cir. 1987) ("the need for discovery does not excuse the filing of a vacuous complaint"); Nassau-Suffolk Ice-Cream, Inc. v. Integrated Resources, Inc., 114 F.R.D. 684, 690 (S.D.N.Y. 1987) (it is not enough to merely allege an antitrust claim; Rule 11 imposes an affirmative obligation to conduct a reasonable inquiry into the relevant facts. "Were it otherwise, pleading would require no more than a list of names and a vivid imagination") (emphasis added).
B. Rule 11 Required The Individual Plaintiffs To Have Conducted Their Own Pre-Filing Investigation
The Individual Plaintiffs' complete reliance on the efforts of the Class Plaintiffs, as evidenced by their literal cut-and-pasting of the Gardella complaint and their entire reliance on the Class Plaintiffs' First Amended Consolidated Complaint here, contravenes Rule 11. This case thus presents an even stronger case for sanctions than the Garr case, cited by MeadWestvaco in its opening brief. In Garr v. United States Healthcare, Inc., 22 F.3d 1274 (3d Cir. 1994), the Third Circuit affirmed the imposition of Rule 11 sanctions against two attorneys, Levin and Sklar, who, like the Individual Plaintiffs in this case, relied entirely on another lawyer's investigation and complaint prior to filing their own class action complaint. The Third Circuit reached this result despite the fact that the complaint Levin and Sklar copied had survived a motion to dismiss, stating:
As explained in MeadWestvaco's opening Rule 11 brief, the Class Plaintiffs themselves did not perform an adequate pre-filing investigation of MeadWestvaco. They specifically identified their investigatory efforts prior to filing the Gardella complaint, and not one inquiry concerned MeadWestvaco. See MeadWestvaco Corp.'s Mot. for Sanctions, at 3-4, n. 4.
At bottom, there is no escape from the conclusion that Levin and Sklar abdicated their own responsibilities and relied excessively on [the first-filing attorney] Malone contrary to Rule 11. Furthermore, they did not rely on Malone only as to some small portion of the case. Rather, they relied on his inquiry to justify the entire cause of action. Indeed, they filed the complaint Malone had prepared, changing only the name of the plaintiffs and the number of shares owned. We recognize that it could be argued that it would have been pointless for Levin and Sklar to make an inquiry into the merits of the case sufficient to satisfy Rule 11 as Malone already had done so. Yet Rule 11 requires that an attorney signing a pleading must make a reasonable inquiry personally.Id. at 1280 (emphasis added). Individual Plaintiffs, like Levin and Sklar, copied someone else's complaint. But unlike Levin and Sklar, Individual Plaintiffs copied a complaint that itself lacked a Rule 11 basis. If sanctions were appropriate for the Garr attorneys, the case for sanctioning Individual Plaintiffs is all the stronger. See also Unioil, Inc. v. E.F. Hutton Co., 809 F.2d 548, 558 (9th Cir. 1986) ("An attorney who signs the pleading cannot simply delegate to forwarding co-counsel his duty of reasonable inquiry"); Ill. Cent. R.R. Co. v. R.R. Land, Inc., No. 86-86 C/W 91-543, 1992 U.S. Dist. LEXIS 1901, at *19 (E.D. La. Feb. 18, 1992) ("[c]onclusory statements from . . . an attorney . . . do not without more afford the lawyer a basis for certifying knowledge, information and belief. The duty of inquiry is nondelegable; indeed courts have readily sanctioned attorneys for signing documents in blind reliance on another attorney") (citations omitted) (ellipsis in original).
Individual Plaintiffs' efforts to minimize the force of Garr's reasoning by relying on its dissent should be rejected. Opp. at 7 n. 3. The Garr dissent argued that Levin and Sklar should not be sanctioned because the complaint they copied was not dismissed by the district court. The dissent noted that, in its view, the Second Circuit had "suggested" that Rule 11 sanctions were inappropriate in such circumstances. It cited three Second Circuit cases for this suggestion, but none of those cases directly addressed the situation of the copy-cat complaint. Moreover, none held — as is the case here — that it was permissible for a lawyer to copy without investigation a complaint that was itself filed without facts and investigation. If anything, the primary case quoted by the Garr dissent supports MeadWestvaco's position: in Calloway, the Second Circuit affirmed the imposition of sanctions because plaintiff filed one of its claims without performing a reasonable investigation and without supporting facts. See Calloway, 854 F.2d at 1471 ("The record demonstrates beyond argument LeFlore's indifference to whether the facsimile claim had a factual basis").
A subsequent panel of the 9th Circuit questioned Unioil, under later-implemented and stricter Rule 11 standards, "to the extent" it affirmed sanctions against an attorney for failing to conduct an adequate pre-filing investigation without considering whether, in fact, his complaint also lacked a factual basis. See In re Keegan Mgmt. Co. Sec. Litig., 78 F.3d 431, 434-35 (9th Cir. 1996). Keegan held that under Rule 11 the courts in the Ninth Circuit should consider both the adequacy of the attorney's investigation and the factual basis for the complaint. MeadWestvaco believes this Court, too, should consider both prongs, and should find that Individual Plaintiffs fail both prongs because they copied a complaint that itself lacked a reasonable factual basis for suing MeadWestvaco. Unioil's core holding, that failure to conduct an adequate pre-filing investigation fails the first prong of the Rule 11 analysis, is still good law.
The Individual Plaintiffs concede they had no knowledge whatsoever of any alleged conspiracy, Compl. ¶ 60, and failed to identify any pre-filing investigation of MeadWestvaco, yet they seek to avoid Rule 11's requirements because there has been no "discovery or a determination by the Court or a jury based on the evidence" in this case. Opp. at 7. That stands Rule 11 on its head. Rule 11 is designed to ensure that baseless, empty complaints such as the one filed by the Individual Plaintiffs here do not burden parties with the extraordinary expense and inconvenience of months and months of discovery. Foster, 108 F.R.D. at 415 ("Rule 11 codifies the professional ethic that `attorneys must pursue some legal and factual analysis before subjecting a person or company to the disruption of defending a lawsuit in federal court.'") (citation omitted). Moreover, "[i]t is not permissible to file suit and use discovery as the sole means of finding out whether you have a case. Discovery fills in the details, but you must have the outline of a claim at the beginning. Rule 11 requires independent inquiry." Szabo Food Serv., Inc. v. Canteen Corp., 823 F.2d 1073, 1083 (7th Cir. 1987).
The Individual Plaintiffs' contention that it would be premature to levy sanctions "at the very beginning of an antitrust case" is similarly misplaced because it is well-established that whether one has met the Rule 11 standard is measured as of the time the pleading is signed. See, e.g., Banco de Ponce v. Buxbaum, 90-Civ-6344 (SWK), 1992 U.S. Dist. LEXIS 15730, at *54 (S.D.N.Y. Oct. 14, 1992) ("The conduct of the signer or represented party is measured at the time the paper is filed.") (citations omitted).
CONCLUSION
The Individual Plaintiffs have filed a carbon copy of a previously-filed complaint, without any effort or investigation of their own, and without any evidentiary support for their allegations. Rather than identify one example of a pre-filing inquiry or any factual support for their conclusory claims that MeadWestvaco "conspired" with other paper manufacturers, the Individual Plaintiffs instead cite allegations in the Class Plaintiffs' Amended Complaint (not theirs) and ask this Court to lower the Rule 11 bar. They ask for lenience because this is an antitrust case, and they ask for patience because discovery has not yet commenced. But this is precisely the type of situation for which Rule 11 was promulgated. As the Supreme Court has stated, "the central purpose of Rule 11 is to deter baseless filings in District Court and . . . streamline the administration and procedure of the federal courts." Cooter Gell v. Hartmarx Corp., 496 U.S. 384, 393 (1990). Therefore, MeadWestvaco submits that sanctions are entirely appropriate against the Individual Plaintiffs. For the reasons set out in its Opening Brief and in this Brief, MeadWestvaco requests the dismissal with prejudice of the Individual Plaintiffs' Complaint against it.
EXHIBIT 1
______________________________ IN RE PUBLICATION PAPER ) ANTITRUST LITIGATION ) Docket No. 3:04 MDL 1631 (SRU) ______________________________) ) THIS DOCUMENT RELATES TO: ) January 5, 2005 ALL CASES ) ______________________________)
MAJORITY PLAINTIFFS' MEMORANDUM OF LAW IN RESPONSE TO MOTION OF WOLF HALDENSTEIN ADLER FREEMAN HERZ LLC FOR APPOINTMENT AS INTERIM LEAD COUNSEL AND IN SUPPORT OF THE MANAGEMENT STRUCTURE THAT MAJORITY PLAINTIFFS HAVE PREVIOUSLY PROPOSED TO THE COURT
of counsel in other kinds of class actions, such as antitrust cases. While there is some anecdotal evidence that the model can work well and result in lower attorney fees, the model is not only largely unproven but also in tension with a fundamental premise animating the class action proceeding — namely, that the class action is designed to aggregate claims that are individually too small to support litigation by any single class member. In the experience of the Task Force, it is the exceptional class action (not the rule) to find a lead plaintiff who has suffered a loss that would financially support an individual suit, yet who prefers to prosecute a class action, taking on fiduciary duties to others and incurring the delay and expense of all the attendant procedures. The Task Force also believes that, to the extent those plaintiffs exist, defining the party with the largest loss as the most adequate plaintiff is too narrow. The party who lost the most is not by that fact always the best party to control the case and control the lawyers." ( 208 F.R.D. at 415; footnote omitted.) (emphasis added).
It is true, as Wolf notes, that at least one district court in an antitrust case has looked by analogy to the criteria under the PSLRA in selecting class counsel. In re Scrap Metal Antitrust Litig., 2002 WL 31988203 at *2 (N.D. Ohio, Aug. 5, 2002). However, that court engaged in no real analysis of the permissibility of making such an analogy and did not address the well reasoned concerns expressed by the Third Circuit. Moreover, if one accepts as true Wolf's allegations about the size of Three Z and Nies, there is a potential concern, to which the Third Circuit alluded, that such plaintiffs may either have the economic incentive to opt out of the class and pursue individual claims or be "bought off" by defendants. Thus, the status of Three Z and Nies should at most be a minor factor to be considered in determining whether Wolf should be sole lead counsel.
Wolf also cites the work it claims to have done on the case as a factor that militates in favor of its appointment to a leadership position, contending that Wolf satisfies this criterion of Rule 23(g) for selection as interim class counsel. Wolf Memo., p. 15. However, the record belies the assertion that Wolf has done much. The Three Z and Nies complaints are almost entirely carbon copies of the Gardella complaint, reflecting no significant additional work. While the Digital Color complaint filed by Cohen contains different theories and claims supported by independent economic analysis, Wolf appears to have performed no such analysis for inclusion in its complaint, instead copying nearly verbatim the Gardella claims. All three complaints are on file with the court, and comparison of the complaints will confirm that the Three Z and Nies complaints are nearly identical to the Gardella complaint, down to the typographical errors contained therein. See Lehmann Decl., ¶¶ 7-11.
The docket sheets for Nies and Three Z reveal that little has happened in those cases since they were filed. The plaintiffs in Three Z and Nies did not have to brief motions to dismiss, as did the plaintiffs in Gardella, Reynolds, Weiss and Acorn. The plaintiffs in Three Z and Nies did not file motions for class certification, as did the plaintiffs in Gardella, Reynolds and Weiss. There is no evidence that the plaintiffs in Three Z and Nies have retained economic experts who studied the industry, as did the plaintiffs in Gardella, Reynolds, Weiss, Acorn, Service Web, Kukla and Digital Color. The law firms on the proposed Executive Committee have been the ones to make substantial efforts to work with defendants on scheduling and to coordinate these cases with the California indirect purchaser class actions. The plaintiffs in Three Z and Nies did expend time and effort in opposing the transfer of these cases to this District, but the JPML overruled their objections. In short, the members of the proposed Executive Committee have collectively done much more productive work on this case than has Wolf.
Another factor that bears on the issue of selection of class counsel is relative experience. Wolf is primarily known as a law firm specializing in securities litigation, not antitrust litigation. The class action overview page on its website confirms this fact, extolling its securities class action experience, and only briefly mentioning its antitrust cases. Seehttp://www.whafh.com/modules/practice_area/index.php?action=viewid=19.
Not only is Wolf's antitrust experience less than that of the other firms on the proposed Executive Committee, but the personnel from those firms who will work on this case — Michael Hausfeld for Cohen; Robert Kaplan and Gary Specks for Kaplan; Steve Greenfogel for Meredith; Gerald Rodos for Barrack; Frederick Furth, Thomas Dove and Michael Lehmann for Furth; Sam Heins for Heins — are all highly seasoned litigators (Mr. Furth alone has practiced for over 45 years) who collectively have tried dozens of antitrust class action cases. Ms. Fait, with all due respect, simply lacks that level of experience. She cites, for example, her role in Brand Name Drugs (Wolf Memo., p. 16), but the trial in that case was handled, inter alia,
EXHIBIT 2
_______________________________ ) IN RE PUBLICATION PAPER ) Docket No. 3:04 MD 1631 (SRU) ANTITRUST LITIGATION ) _______________________________) ) THIS DOCUMENT RELATES TO: ) ALL CASES ) _______________________________) DECLARATION OF MICHAEL P. LEHMANN IN SUPPORT OF MAJORITY PLAINTIFFS' MEMORANDUM OF LAW IN RESPONSE TO MOTION OF WOLF HALDENSTEIN ADLER FREEMAN HERZ LLC AS INTERIM LEAD COUNSEL AND IN SUPPORT OF THE MANAGEMENT STRUCTURE THAT THEY HAVE PROPOSED PREVIOUSLY TO THE COURTMichael P. Lehmann, under penalty of perjury, does declare and state as follows:
1. I am Managing Partner of The Furth Firm LLP ("TFF"), counsel for Plaintiffs Charles Gardella, Jr., Technolith, Inc., and Steven Reynolds, and one of the proposed members of the Plaintiffs' Executive Committee for the Class Plaintiffs in the above-titled action.
2. On September 9, 2004, a meeting was held in Philadelphia, Pennsylvania to which all plaintiffs' counsel in all publication paper antitrust cases then on file were invited. Over 30 counsel attended in person (including Mary Jane Fait), others participated telephonically. I started out the discussion with an explanation of why TFF believed the various cases should be sent to the District of Connecticut for pretrial proceedings. After discussion of the pros and cons of various alternative districts, all counsel present, except Ms. Fait, expressed support for centralizing these cases in the District of Connecticut.
3. The attendees then turned to the subject of a case management structure for plaintiffs' counsel in this case that could be offered to the presiding judge. I proposed a six-person Executive Committee consisting of TFF and the firms of Cohen, Milstein, Hausfeld Toll, P.L.L.C. ("Cohen"); Barrack, Rodos Bacine; Heins, Mills Olsen, P.L.C.; Kaplan Fox Kilsheimer LLP; and Meredith Cohen Greenfogel Skirnick, P.C., with TFF and Cohen serving as co-chairs. Also proposed as liaison counsel was the firm of Brenner, Saltzman Wallman LLP.
4. After extensive discussion, all counsel present or participating by telephone expressed support for the proposed Executive Committee except Ms. Fait. Many of these other counsel, all of whom are well-qualified, wanted to be members of the proposed Executive Committee but stepped aside in order to achieve a consensus. Ms. Fait took the view that her firm, Wolf Haldenstein Adler Freeman Herz LLC should be one of plaintiffs' lead counsel. Her firm was offered a responsible position on a committee other than the proposed Executive Committee, but she explained that her firm had a policy of attempting to secure a lead counsel position in all antitrust class actions with which it was involved as part of an effort to build up its antitrust practice.
5. A voice vote was eventually taken and all counsel participating in person or by telephone voted in favor of the proposed Executive Committee except Ms. Fait. No one supported her for lead counsel. Counsel in cases filed after the September 9 meeting also supported the proposed Executive Committee.
6. I argued before the Judicial Panel on Multidistrict Litigation on September 30, 2004 that the publication paper antitrust cases should be centralized in this district, a position supported by plaintiffs in 22 out of the 24 cases then on file. Only Ms. Fait argued against such a transfer.
7. The initial class action complaint in Charles J. Gardella, Jr., formerly doing business as FCP WEBindery, Inc. v. International Paper Co.; MeadWestVaco Corp.; Norske Skogindustrier ASA; Norske Skog North America LLC; Norske Skog (USA), Inc.; Norske Skog (USA) Holdings, Inc.; Norske Skog Canada Limited; Norske Skog Canada (USA), Inc.; Stora Enso Oyj; Stora Enso North America Corporation; SAPPI Limited; S.D. Warren Company; Metsalitto Group; Metsalitto Cooperative; M-Real Corporation; M-Real USA Corp.; UPM-Kummene Corporation; Myllykoski Corporation; Madison International Sales Company; and Bowater, Inc. (" Gardella") was filed on June 8, 2004 in the United States District Court for the District of Connecticut.
8. The Class Action Complaint in Three Z Printing Company v. International Paper Co.; MeadWestVaco Corp.; Norske Skogindustrier ASA; Norske Skog North America LLC; Norske Skog (USA), Inc.; Norske Skog (USA) Holdings, Inc.; Norske Skog Canada Limited; Norske Skog Canada (USA), Inc.; Stora Enso Oyj; Stora Enso North America Corporation; SAPPI Limited; S.D. Warren Company; Metsaliitto Group; Metsaliitto Cooperative; M-Real Corporation; M-Real USA Corp.; UPM-Kummene Corporation; Myllykoski Corporation; Madison International Sales Company; and Bowater, Inc. (" Three Z") was filed on June 24, 2004 in the United States District Court for the Southern District of Illinois.
9. The Class Action Complaint in Nies Artcraft Companies Inc. v. International Paper Co.; MeadWestVaco Corp.; Norske Skogindustrier ASA; Norske Skog North America LLC; Norske Skog (USA), Inc.; Norske Skog (USA) Holdings, Inc.; Norske Skog Canada Limited; Norske Skog Canada (USA), Inc.; Stora Enso Oyj; Stora Enso North America Corporation; SAPPI Limited; S.D. Warren Company; Metsaliitto Group; Metsaliitto Cooperative; M-Real Corporation; M-Real USA Corp.; UPM-Kummene Corporation; Myllykoski Corporation; Madison International Sales Company; and Bowater, Inc. (" Nies") was filed on June 28, 2004 in the United States District Court for the Southern District of Illinois.
10. The three complaints are substantially identical. Aside from insignificant typographical errors and differences in capitalization and punctuation, the most substantial difference between the Gardella complaint and the Three Z and Nies complaints (which are identical) is the substitution of the word "engender" for "entail" in Paragraph 36.
11. Even some of the typographical errors are identical, which clearly demonstrates that the Three Z and Nies complaints were copied directly from the Gardella complaint. For example, in the opening paragraph, all three complaints misspell the name of defendant Madison International Sales Company as " Adison International Sales Company," and in Paragraph 75 each complaint reads ". . . members of the Class paid more Publication Paper . . ." rather than ". . . members of the Class paid more for Publication Paper . . ."
I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct and that this declaration was executed on January 5, 2005 in San Francisco, California.
________________________________ IN RE PUBLICATION PAPER : ANTITRUST LITIGATION : Master File No.: 3:04-md-1631 (SRU) : : MDL No. 1631 THIS DOCUMENT RELATES TO: : ALL ACTIONS : ________________________________: : THREE Z PRINTING COMPANY AND : Civil Action No.: NIES AIRCRAFT COMPANIES, INC., : 3:05 CV 0463 (SRU) : Plaintiffs, : : v. : : INTERNATIONAL PAPER CO. et al.,: : Defendants. : September 6, 2005 ________________________________: