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28-Aug-2018 08:15

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Moreover, allowing defendants to consolidate private antitrust cases filed in the same district with Government antitrust cases would allow them to circumvent § 1407(g) by seeking transfer of individual cases to the same forum and then moving for consolidation under Rule 42(a). The Government's complaint states that almost all artificial teeth sold in this country are used by dental laboratories to make dentures. The legislative history of § 1407(g) acknowledges that exempting Government antitrust complaints from pretrial transfer and consolidation with private antitrust actions imposes some burdens on defendants. § 16(a) also articulates the public policy of recognizing the priority of federal antitrust enforcement actions over private antitrust suits. Although some manufacturers of artificial teeth sell their product directly to dental laboratories, dealers (also referred to in the complaint as "dental laboratory dealers," "independent dealers," and "independent distributors") are the primary channel through which dental laboratories purchase artificial teeth. Although there may be some cases in which consolidation would not in fact cause delay to the Government's antitrust case, due to the vagaries of the discovery process there is no way to ensure ahead of time that delay will not occur. In this case, the United States filed its suit against Dentsply after substantial investigation in which Dentsply participated.

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However, in cases where the Government objects to consolidation, as in this case, public policy concerns underlying 28 U. It urges no delay will actually result from consolidation because the parties in each of the three cases are committed to the exact same discovery schedule, with merits discovery scheduled to end on the same date. In this case, as indicated by the nearly identical allegations of the Government complaint and the Hess and Raiber complaints, the Hess and Raiber actions are the type of private tag-along actions Congress feared would delay the Government's cases. If consolidation were permitted with the Government antitrust case under Rule 42(a), it would encourage more private tag-along suits, which would likely delay future Government antitrust cases. Second, the virtual correspondence of the substantive antitrust allegations in the three cases means there will be a substantial overlap in discovery. When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.8 James Wm. 1999); 9 Wright & Miller, Federal Practice and Procedure § 2384. The Government also points out that the Raiber claim is based not on the federal antitrust statutes but on New York's Donnelly Act.

The most apparent differences among the complaints are that Hess and Raiber request monetary damages and the Government does not, Moreover, discovery related to the damages and class issues is scheduled to take place in the Raiber and Hess cases after discovery has concluded in the Government case.

This document is available in two formats: this web page (for browsing content) and PDF (comparable to original document formatting). Kriner, Jr., Esquire, of Chimicles & Tikellis, LLP, Wilmington, Delaware; Of Counsel: Thomas A. Salzman, Esquire, of Goodkind Labaton Rudoff & Sucharow LLP, New York, New York; attorneys for plaintiffs Howard Hess Dental Laboratories Incorporated and Philip Guttierez d/b/a Dentures Plus, on behalf of themselves and all others similarly situated, in Civil Action No. Moreover, burdens on third party witnesses would be reduced through avoidance of duplicative discovery.