Free Answering Brief in Opposition - District Court of Delaware - Delaware

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA ____________________________________ ) ) NOWAK DENTAL SUPPLIES, INC., ) ) Plaintiff, ) ) v. ) ) DENTSPLY INTERNATIONAL INC., ) ) Defendant. ) ) ____________________________________)

No. 1:07-cv-01799

(Judge Conner)

PLAINTIFF NOWAK DENTAL SUPPLIES INC.'S RESPONSE TO DEFENDANT'S MOTION TO TRANSFER VENUE

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TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................................................................... ii I. PRELIMINARY STATEMENT ...........................................................................1 II. FACTUAL BACKGROUND ..............................................................................3 A. Several Cases Pending Before This Court Invoke Precedent Established By the Third Circuit in Prior Related Litigation ...............3 The Instant Motion Attempts to Bring Plaintiff Into a Jurisdiction Already Determined to Be Inappropriate ..............................................7 Nowak is No Longer a Party to the Hess Action ..................................9

B.

C.

III. QUESTION PRESENTED .............................................................................. 10 IV. LEGAL ARGUMENT..................................................................................... 10 A. B. C. Significant Deference Is Accorded to Plaintiff's Choice of Venue ... 11 Litigation Efficiencies Favor Keeping Nowak in This Court ............ 14 Judge Robinson's Participation in Prior Cases Does Not Mandate Transfer............................................................................................... 16 1. The Pendency of Related Litigation in Another Forum is Not Dispositive ............................................17 The Nowak Action Will Involve Questions of Law Not Addressed in Hess ..............................................................19

2.

V. CONCLUSION ................................................................................................. 20

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TABLE OF AUTHORITIES CASES In re Amendt, 169 Fed. Appx 93 (3rd Cir. 2006) ................................................................. 18 In Re AT&T Access Charge Litigation, 2005 U.S. Dist. LEXIS 35431 (D.D.C. November 16, 2005) .......................14 Ayling v. Traveler's Prop. Casualty Corp, 1999 U.S. Dist. LEXIS 16716 (E.D. Pa October 27, 1999) ..........................17 Bank of America NA v. US Airways, Inc., 2005 U.S. Dist. LEXIS 34902 (D. Del. December 21, 2005) .......................18 Clark v. Burger King Corp. and Dime-Mor II, Inc., 255 F. Supp. 2d 334 (D.N.J. 2003) ................................................................12 First Union National Bank v. United States, 55 F. Supp. 2d 331 (E.D.Pa. 1999) ................................................................12 Fusi v. Emery World Airlines, 2007 U.S. Dist. LEXIS 89784 (S.D. Ohio November 23, 2007) ..................17 Howard Hess Dental Laboratories, Inc. v. Dentsply International, Inc., 2007 U.S. Dist. LEXIS 71563 (D. Del. Sept. 26, 2007) ...........................9, 19 Howard Hess Dental Laboratories v. Dentsply International, Inc., 424 F.3d 363 (3d. Cir. 2005) ..................................................................passim Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977).........................................................................2, 8, 19, 20 Job Haines Home for the Aged v. Young, 936 F. Supp. 223 (D.N.J. 1996) ..................................................................... 18 Jumara v. State Farm Insurance, 55 F.3d 873 (3d Cir. 1995) ......................................................................10, 16
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Kedia v. Jamal, 2007 U.S. Dist. LEXIS 48474 (D.N.J. July 5, 2007) .................................... 17 Kucala Enterprises v. Automobile Wax Co., 2002 U.S. Dist. LEXIS 13147 (N.D. Ill. July 18, 2002) ...............................17 Liggett Group Inc. v. R.J. Reynolds Tobacco Co., 102 F. Supp. 2d 518 (D.N.J. 2000) ...............................................................18 Osteotech, Inc. v. Gensci Regeneration Sciences, Inc., 6 F. Supp. 2d 349 (D.N.J. 1998) .................................................................... 13 Samsung Electronics Co. Ltd v. Rambus, Inc., 386 F. Supp. 2d 708 (E.D. Va. 2005) ......................................................13, 17 Shan Sparshott, et al v. Feld Entertainment, Inc., 89 F. Supp. 2d 1 (D.D.C. 2000)...............................................................11, 17 Shutte v. Armco Steel Corp., 431 F.2d 22 (3d Cir. 1970) ......................................................................11, 12 Sovereign Bank, F.S.B. v. Rochester Community Savings Bank, 907 F. Supp. 123 (E.D.Pa. 1995) ................................................................... 12 United States v. Dentsply International, Inc., 399 F.3d 181 (3d Cir. 2005) ............................................................................ 4 U.S. v. Grinnell Corp., 384 U.S. 563 (1966).......................................................................................14 Woodall v. Piper Aircraft, 1983 U.S. Dist. LEXIS 17465 (M.D. Pa April 25, 1983) .............................18

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DOCKETED CASES Hess v. Dentsply International, Inc., No. 1:99-255 (D.Del.)...................................................................................... 2 Jersey v. Dentsply, International Inc, et al, No. 1:01 CV-00267 (D.Del.) ........................................................................... 2 Lactona Corp. v. Dentsply International, Inc., No. 1:07-00774 (M.D.Pa.) ......................................................................... 1, 15 Univac Dental Co. v. Dentsply International, Inc., No. 1:07 CV-00493 (M.D.Pa.) ........................................................................ 1

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Plaintiff Nowak Dental Supplies, Inc. files this response in opposition to Defendant Dentsply International Inc.'s motion to transfer venue in this case to the District of Delaware. I. PRELIMINARY STATEMENT In its opening brief, Dentsply lists numerous factors the Third Circuit weighs when considering a motion to transfer.1 Strikingly, none of these enumerated factors favor transfer here, let alone weigh heavily enough to counterbalance the strong presumption in favor of plaintiff's choice of jurisdiction. Put quite plainly, Nowak has chosen to come to Dentsply's home district, where it is already involved in related cases involving the same facts and causes of action. 2 There can be no more convenient venue for Dentsply to produce documents and witnesses, appear before the court and defend itself at trial, than here - particularly when Dentsply will be compelled to make these same efforts in the prosecution of the Univac and Lactona actions regardless of whether Nowak remains in this venue. Indeed, Dentsply concedes that it would not be burdened by litigating here, and it is puzzling that Dentsply would seek to double its obligations. On the other hand, transfer will not only leave many of the same issues pending before this
1

Defendant Dentsply International Inc.'s Brief in Support of Its Motion to Transfer ("Def. Brf.") at 8. 2 Univac Dental Co. v. Dentsply International, Inc., No. 1:07 CV-00493 (M.D.Pa.) ("Univac"). Lactona Co. v. Dentsply International, Inc., No. 1:07 CV-00774 (M.D.Pa.) ("Lactona"). 1

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Court, but will also place before the Delaware court novel questions of law and fact unrelated to any case now pending before it. In an attempt to counter this clear balance of benefits in favor of this Court, Dentsply devotes much of its brief (and nearly all of its legal argument) to detailing the experience of the Delaware court in a near-complete case which arose from Dentsply's proven anticompetitive conduct, but which involved different parties and claims. 3 It is this experience alone, Dentsply contends, that mandates

transfer of only the Nowak case to that foreign court. In fact, transfer of this action would create precisely the inefficiency and risk of inconsistent judgments of which Dentsply professes concern. It is well settled that where competition has been harmed by a firm's anticompetitive conduct, it is the competitors of, and direct purchasers from, that firm that are empowered to pursue antitrust remedies. See Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977). Accordingly, Univac, Lactona and Nowak must each satisfy the same elements of Section 2, requiring this Court to consider precisely the same factual and legal issues in each case. Likewise, all three plaintiffs have made allegations that Dentsply will be estopped from contesting its anticompetitive conduct, and the harm to competition caused thereby, already determined by the Third Circuit in the government action. Therefore, transfer of
3

Hess v. Dentsply Int'l, Inc., No. 99-255 (D.Del.); Jersey v. Dentsply, Int'l Inc, et al, No. 1:01 CV-00267 (D.Del.) (collectively, "Hess"). 2

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this action would increase the risk of inconsistent judgments, as two separate courts would then be asked to address for the first time substantially identical claims and the preclusive effect of Third Circuit precedent thereon. Notably, Judge Robinson's opinion regarding the potential preclusive effects of the Third Circuit's findings on the claims of indirect purchasers is not dispositive of, nor particularly relevant to, the factually and legally distinct claims of direct purchasers and competitors. Moreover, the Hess action is over but for a conspiracy claim that is irrelevant to the cases now before this Court. Judicial economy will not be served by compelling the Delaware court to assume jurisdiction of a case that is in its nascent stages, in order to preside over discovery disputes and motion practice not only distinct from any prior cases, but also not conducive to coordination with any other process now before that court. In reality, Dentsply's motion is a litigation tactic designed to drag Nowak back into the Hess action, from which it has been dismissed for lack of personal jurisdiction. Dentsply's motion should be rejected. II. FACTUAL BACKGROUND A. Several Cases Pending Before This Court Invoke Precedent Established By the Third Circuit in Prior Related Litigation

In 1999, the Department of Justice Antitrust Division (DOJ) filed an antitrust suit under Sections 1 and 2 of the Sherman Act against Dentsply in the

3

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District Court of Delaware, Dentsply's state of incorporation.4 As alleged in that case, beginning as early as 1987, Dentsply imposed upon its dealers an exclusive dealing requirement which, among other things, compelled dealers to reject products from competing manufacturers in favor of Dentsply's teeth. This

requirement was subsequently codified in Dentsply's "Dealer Criterion 6" which provided that dental dealers promoting Dentsply's products "may not add further tooth lines to their product offering." (Nowak Complaint at ¶23). The DOJ alleged that the purpose and effect of Dealer Criterion 6 was to restrain competition, maintain a monopoly in the market for artificial teeth, prevent new entry into the market, and thereby cause artificial teeth prices to increase to artificially high levels. In fact, the DOJ was proven precisely correct regarding the anticompetitive intent, and impact, of Dentsply's restrictive dealer policies. In an opinion dated

February 24, 2005, the Third Circuit concluded that Dentsply's exclusionary conduct in the market for artificial teeth violated Sherman Act Section 2. See

United States v. Dentsply Int'l, Inc., 399 F.3d 181 (3d Cir. 2005). In so finding, the Third Circuit made, or relied upon, a number of factual and legal findings that will be directly relevant to the several cases now before this Court arising from Dentsply's wrongful exclusionary conduct. Specifically, the Third Circuit found

4

United States v. Dentsply Int'l, Inc., 99-cv-005 (D. Del.). 4

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that Dentsply had achieved and maintained a dominant share of the market for artificial teeth and that: a. "The reality is that over a period of years, because of

Dentsply's domination of dealers, direct sales have not been a practical alternative for most manufacturers. . . . This is the part of the real market that is denied to the rivals." Id. at 189. b. "The evidence demonstrated conclusively that Dentsply had

supremacy over the dealer network and it was at that crucial point in the distribution chain that monopoly power over the market for artificial teeth was established. The reality in this case is that the firm that ties up the key dealers rules the market." Id. at 190. c. "By ensuring that the key dealers offer Dentsply teeth either as

the only or dominant choice, Dealer Criterion 6 has a significant effect in preserving Dentsply's monopoly. It helps keep sales of competing teeth below the critical level necessary for any rival to pose a real threat to Dentsply's market share. As such, Dealer Criterion 6 is a solid pillar of harm to competition." Id. at 191. d. Persuasive evidence existed of Dentsply's control, and

inflation, of artificial tooth prices: "Dentsply did not reduce its prices when competitors elected not to follow its increases. Dentsply's profit margins have been

5

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growing over the years. . . . The results have been favorable to Dentsply, but of no benefit to consumers." Id. Based on these findings of fact, the Third Circuit concluded that, (a) Dentsply had market power in the relevant market for prefabricated artificial teeth in the United States, (b) "Dentsply's grip on its 23 authorized dealers effectively choked off the market for artificial teeth, leaving only a small sliver for competitors," and (c) "on this record, the Government established that Dentsply's exclusionary policies and particularly Dealer Criterion 6 violated Section 2." Id. at 196. Thereafter, entities harmed by this anticompetitive conduct, including manufacturers and direct purchasers of artificial teeth, filed suit in Dentsply's home district (Dentsply's principal place office is located in York, Pennsylvania). Univac and Lactona, two competitors of Dentsply, and Nowak, a direct purchaser from Dentsply, filed their complaints in this district in 2007. Notably, all three of these plaintiffs allege Section 2 claims arising from harm to competition recognized by the Third Circuit. Specifically, each complaint alleges that Dentsply maintained and exercised monopoly power in the artificial teeth market through exclusionary and anti-competitive conduct, including the implementation and enforcement of Dealer Criterion 6, which precluded Dentsply's competitors from gaining access to dealers. Each party further alleges that Dentsply's exclusionary

6

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practices were intended to, and did, stifle competition in the artificial tooth market, as evidenced, inter alia, by the monopoly prices Dentsply was able to extract for its tooth products.5 Furthermore, Nowak, Univac and Lactona also allege that the doctrine of collateral estoppel applies to the Third Circuit's conclusion that

Dentsply violated Section 2 of the Sherman Act, and will therefore be dispositive of that issue. B. The Instant Motion Attempts to Bring Plaintiff Into a Jurisdiction Already Determined to Be Inappropriate

The principal basis for the instant motion is the Delaware district court's experience as the trial court in the government action and in another action also arising from Dentsply's wrongful conduct ­ Hess ­ which involves very different plaintiffs and legal theories than presented to the Court here. Defendant submits that this experience, by itself, is compelling enough to transfer this case (but not Lactona or Univac) from defendant's home district and to the district where Judge Robinson recently ruled that she did not have jurisdiction over Nowak as a defendant and that venue was improper. In its current incarnation, the Hess action asserts a Sherman Act Section 1 conspiracy based on resale price maintenance, bearing very little resemblance to Nowak, Univac or Lactona.
5

Hess began as a Section 2 action by a class of

See Univac Complaint at ¶¶ 1-8, 15-16; Lactona Complaint at ¶¶ 1-7, 25-28; Nowak Complaint at ¶¶ 4-7, 27-34 (Complaints from each action are appended, collectively, as "Attachment A"). 7

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indirect purchasers, i.e. consumers that purchased artificial teeth through wholesalers or retailers, rather than directly from Dentsply. The district court

dismissed the Hess Section 2 case against Dentsply because it lacked standing as an indirect purchaser to seek damages against Dentsply. The court's ruling was based on the principles of Illinois Brick, wherein the Supreme Court drew a bright line between direct and indirect purchasers, holding that direct purchasers may recover damages in antitrust cases whereas indirect purchasers cannot.6 Hess then unsuccessfully attempted to revive its Section 2 claims by alleging that it was both an indirect and direct purchaser. The district court again

dismissed, holding that the same Illinois Brick policy concerns were implicated.7 On appeal, the Third Circuit affirmed that Hess was barred from bringing a Section 2 claim by Illinois Brick and, furthermore, the facts did not fit within any of the Illinois Brick exceptions that would confer standing.8 The only Hess claim

surviving the Third Circuit's decision was very different than the claims now before this Court: the indirect purchasers' allegation of a retail price fixing
6

In Illinois Brick Co. v. Illinois, 431 U.S. 720, 735-45 (1977), the Supreme Court identified three policy concerns which favor granting standing only to direct purchasers: (1) the danger of duplicative recovery is too great to allow both classes of purchasers to be entitled to recover damages; (2) identifying and tracing overcharges incurred by indirect purchasers would be too difficult; and (3) the risk of inefficient enforcement of the antitrust laws if indirect purchaser actions were to be allowed. 7 Howard Hess Dental Labs v. Dentsply Int'l, Inc., 424 F.3d 363, 373 (3d. Cir. 2005). 8 Id., at 370-2. 8

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conspiracy between the dental supply dealers, such as plaintiff Nowak, and Dentsply. The Third Circuit held that, unlike the Section 2 claim, which was predicated on Dealer Criterion 6 and its exclusionary effect, a resale price maintenance claim did not raise the same Illinois Brick concerns that were fatal to Hess' Section 2 claims.9 C. Nowak is No Longer a Party to the Hess Action

On October 10, 2006, Hess re-filed its complaint, now alleging retail price fixing by, and conspiracy between, Dentsply and its dealers, including Nowak. In response to that complaint, Nowak, among others, moved to dismiss the action against them for lack of personal jurisdiction and proper venue. On September 26, 2007, Judge Robinson dismissed Nowak as a defendant from the Hess actions on both grounds.10 Although Judge Robinson noted that she was not required to address venue (having found that personal jurisdiction did not exist as to Nowak), she proceeded to dismiss the case against Nowak and certain other defendants on that basis stating: "The court finds that domestic defendants' national contacts do not suffice to render venue appropriate in the District of Delaware....The court, therefore, finds

9

Id. at 376-81. Howard Hess Dental Labs., Inc. v. Dentsply Int'l, Inc., 2007 U.S. Dist. LEXIS 71563, *38-42 (D. Del. Sept. 26, 2007).
10

9

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that the moving defendants have satisfied their burden to establish that venue in this district is improper.11 Judge Robinson also dismissed all pending conspiracy counts, leaving intact only the indirect purchasers' retail price fixing claim. Id. at 32.

III. QUESTION PRESENTED Whether the presumption favoring Plaintiff's choice of venue, which is defendant's home forum, and litigation efficiencies that will be realized in advancing three related antitrust cases against Dentsply in this Court have been offset by the fact that one substantially similar case which is concluded, and one dissimilar case which is near its conclusion, were litigated in a different jurisdiction, thereby favoring transfer to that jurisdiction?

IV. LEGAL ARGUMENT Under the law of the Third Circuit, the moving party bears the burden of proving why a court should grant a transfer. See Jumara v. State Farm Ins., 55 F.3d 873, 879 (3d Cir. 1995). While there is no definitive formula, the Third Circuit has identified twelve factors that generally apply to transfer motions.12 As

11 12

Id. at 24-25 (emphasis added). The most common factors are (1) the plaintiff's choice of forum; (2) the defendant's choice of forum; (3) where the claim arose; (4) "convenience of the parties as indicated by their relative physical and financial conditions"; (5) the convenience of the witnesses; (6) the location of books and records; (7) the enforceability of the judgment; (8) practical considerations that could expedite or 10

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it is plaintiff's privilege to choose the forum, unless the balance of inconvenience of the parties strongly favors defendant, plaintiff's choice of forum should prevail. Shutte v. Armco Steel Corp., 431 F.2d 22, 25 (3d Cir. 1970). The presumption in favor of plaintiff is so strong, in fact, that absent a compelling showing by the defendant, plaintiff's choice should not be disturbed. See Shan Sparshott, et al v. Feld Entertainment, Inc., 89 F. Supp. 2d 1, 4 (D.D.C. 2000). Notably, Dentsply relies on only two factors in support of its motion: the practical consideration of making the litigation easier and less expensive, and the potential danger of inconsistent rulings. Defendant does not contest that venue is appropriate in Pennsylvania, nor does it point to any reasons why it is less convenient to litigate this action in Pennsylvania rather than in Delaware. In fact, Defendant concedes that Pennsylvania is convenient. Instead, Dentsply's entire argument is based on the proposition that the existence of Hess so substantially outweighs all other relevant considerations that transfer is appropriate. Defendant has failed to meet its burden. A. Significant Deference Is Accorded to Plaintiff's Choice of Venue Where, as here, there is a legally cognizable nexus among the district, the dispute and the parties, a plaintiff's choice of forum becomes "a paramount simplify trial; (9) the level of court congestion in the two fora; (10) "the local interest in deciding local controversies at home"; (11) the public policies of the fora; and (12) in a diversity case, the familiarity of the two courts with state law. Jumara, 55 F.3d at 879-880. 11

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consideration that should not lightly be disturbed." Clark v. Burger King Corp. and Dime-Mor II, Inc. 255 F. Supp. 2d 334, 338 (D.N.J. 2003); First Union National Bank v. United States, 55 F. Supp.2d 331, 332 (E.D.Pa. 1999). Dentsply fails to demonstrate how issues of convenience are so compelling that the presumption favoring Plaintiff's choice of venue should be overturned. Dentsply argues that the District of Delaware is a forum of greater convenience because Plaintiff does not reside in Pennsylvania and the claim did not arise in Pennsylvania. Defendant mistakes the purpose of the forum nonconveniens argument: the test is not whether it would be more convenient (or preferable) for defendant to appear in Delaware rather than Pennsylvania; the burden is upon defendant to show that litigating the case in Pennsylvania is inconvenient.13 See Shuttfe v. Armco Steel Corp., 431 F.2d 22, 24 (3d Cir. 1970). Defendant has already conceded that litigating in Pennsylvania is convenient. (Def. Brf. at 19). In fact, three of the four parties with related cases now before this Court ­ Dentsply, Univac, and Lactona ­ have their principal places of business in this district, further bolstering the presumption that litigation here would facilitate the convenience of parties and witnesses as well as document
13

Whether or not Nowak resides in Pennsylvania has no bearing on whether defending here is less convenient to defendant. The mere fact that plaintiff files in a district other than its home does not compel transfer to another forum. See Sovereign Bank, F.S.B. v. Rochester Community Savings Bank, 907 F. Supp. 123, 126 (E.D.Pa. 1995) (court denied defendant's motion to transfer even though plaintiff filed in a district which was not his home nor the situs of events.) 12

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search, retrieval and production more so than anywhere else.

14

See Samsung

Electronics Co. Ltd v. Rambus, Inc., 386 F. Supp. 2d 708, 717 (E.D. Va. 2005) (defendant's home district is a convenient forum for defendant); Osteotech, Inc. v. Gensci Regeneration Sciences, Inc., 6 F. Supp. 2d 349, 357-58 (D.N.J. 1998) (venue in defendant's principal place of business appropriate and may be preferred in certain cases). Furthermore, as long as Univac and Lactona remain with this Court (and there has been no move by defendant to transfer those cases despite their pendency in this Court for nearly a year), the same documents and witnesses would nonetheless have to travel here. Finally, Dentsply's assertion that the claims at issue here are not connected to this District is incorrect. Nowak, Univac and Lactona allege that Dentsply implemented a nationwide policy intended to exclude its competitors from the market for artificial teeth, and thereby drive up tooth prices (and its own profits). Dentsply does not dispute this. (Def. Brf. at 17). The nationwide scope of Dentsply's misconduct does not change the fact that the epicenter of the unlawful
14

Dentsply suggests that the location of documents produced in prior litigation in Washington D.C. makes Delaware a preferable venue to Pennsylvania. This is makeweight. As Dentsply admits, the location of documents is only a consideration when "the records could not be produced in the alternative forum." Def. Brf. at 18, quoting LG Elecs. Inc. v. First Int'l Computer of America, Inc., 138 F.Supp. 574, 591 (D.N.J. 2001). Of course, Dentsply cannot contend that these documents could more easily be produced in Wilmington than Harrisburg. And as Dentsply further admits, that much of these documents are kept electronically (and therefore are easily transportable) vitiates any convenience rationale based on the existence of these previously-produced records. 13

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conduct and the decisions arising therefrom was Dentsply's corporate headquarters in Pennsylvania. This fact supports plaintiff's forum selection and further weighs

against transfer. See, e.g., In Re AT&T Access Charge Litigation, 2005 U.S. Dist. LEXIS 35431, *15 (D.D.C. November 16, 2005) (the location where the conduct is coordinated and controlled is the location where the conduct occurred). As Defendant resides in this forum and the situs of events is here, the strong preference for plaintiff's choice of venue remains undisturbed. B. Litigation Efficiencies Favor Keeping Nowak in This Court

The pendency of Lactona and Univac before this Court further counsels against transfer due to the common issues shared between the three cases. Each

case now before the Court asserts a claim under Section 2, for which each of these plaintiffs must prove (1) defendant's possession of monopoly power and (2) the willful acquisition or maintenance of that power. U.S. v. Grinnell Corp., 384 U.S. 563, 571 (1966). All three complaints allege that these elements are satisfied by the same factual bases: Dentsply's institution and enforcement of restrictive dealer policies which precluded competitors from entering the market, thereby preserving a monopoly share (and monopoly profits) for Dentsply. Furthermore, since each plaintiff has made virtually the same allegations regarding the preclusive effect of the Third Circuit's findings, this Court must eventually apply that ruling regardless of where Nowak is litigated. Even if the

14

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Court eventually rejects this estoppel argument, the cases will not be disposed of, but rather each party will then prove, likely via common evidence, each of the elements described above. Thus, issues common to all three plaintiffs can be addressed by one court, promoting judicial economy, and transferring Nowak creates no efficiencies for this Court: even in Nowak's absence, the Court must still oversee the same questions of law and fact arising from Dentsply's anticompetitive conduct. Even Dentsply recognized the efficiencies of litigating these claims together, when it recently moved to transfer Univac and Lactona to the same docket: "...failure to merge these cases into one proceeding will result in a waste of judicial resources and impose extreme financial burden on Dentsply....if these cases proceed separately, two sets of discovery will be taken that will require the same documents to be exchanged and the same witnesses deposed twice. Allowing these cases to proceed as one will substantially streamline discovery...Interests of judicial economy will be served by having these cases proceed as a single action for the additional reason that repetitious conferences, discovery disputes, and other motion practice will be avoided."15 If litigation efficiencies can be realized by consolidating Univac and Lactona, then additional efficiencies would be gained by retaining and advancing all three cases through a coordinated process through this Court. These practical

15

Motion of Dentsply International, Inc. to Close Case and Transfer to Univac Docket, Lactona Corp. v. Dentsply Int'l, Inc., No. 1:07-00774 (M.D.Pa.) (filed 12/07/2007), at 2. This motion is currently pending. 15

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considerations make litigation easier, expeditious, and less expensive, and further support the presumption favoring plaintiff's venue choice. See Jumara, 55 F3d at 879-880. On the other hand, transfer would increase the burden on the Delaware court by compelling it to take on a case that is factually and legally distinct from any case now before it, and not susceptible to any form of consolidation or coordination due to the advanced stage of Hess. Inconceivably, when it comes to this case, Defendant seems untroubled by proposing that discovery exchanges, depositions, conferences, discovery disputes, and other motion practice on matters common to all three cases be handled by two different judges in two different fora.16 C. Judge Robinson's Participation in Prior Cases Does Not Mandate Transfer

Dentsply's brief makes it clear that its only argument in support of transfer is Judge Robinson's experience in the government and Hess actions. However,

Dentsply has failed to show how Judge Robinson's knowledge of this particular matter is so critical to the interests of justice in this case that it outweighs the

16

Dentsply's motives are further revealed by the fact that it has not even moved to consolidate all manufacturer cases in a single forum. Unmentioned in Dentsply's brief is the existence of a related California action, Vident v. Dentsply International, Inc., Case No. SACV 06-1141 (C.D. Cal). Vident is an antitrust action brought by a manufacturer of artificial teeth which alleges it was excluded from the market as a result of Dentsply's misconduct. Defendant has not sought transfer of the Vident case to Delaware. In fact, discovery has already commenced in that case. 16

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strong presumption in favor of plaintiff's choice of forum and the efficiencies that would be realized by advancing the Nowak, Univac and Lactona actions in this Court. 1. The Pendency of Related Litigation in Another Forum is Not Dispositive

As an initial matter, it is well established that the mere existence of related cases in another forum, even very similar cases with overlapping facts, is insufficient grounds for transfer. See, e.g., Kedia v. Jamal, 2007 US Dist. LEXIS 48474, *12-15 (D.N.J. July 5, 2007) (refusing transfer despite related litigation involving same parties and "substantially overlap[ping]" claims, since different legal and damage theories made inconsistent judgments unlikely); Shan Sparshott, 89 F. Supp. 2d. at 4 (denying transfer despite closely related foreign bankruptcy proceedings, noting that the "mere existence of a related case in another forum is insufficient."); Fusi v. Emery World Airlines, 2007 U.S. Dist. LEXIS 89784, * 2728 (S.D. Ohio November 23, 2007) (transfer rejected notwithstanding multiple cases pending in other forum); Samsung, 386 F. Supp. 2d at 717; Kucala

Enterprises v. Auto Wax Co., 2002 U.S. Dist. LEXIS 13147, *13 (N.D. Ill. July 18, 2002). Nor do the cases relied upon by Dentsply counsel differently. For example, in Ayling v. Traveler's Prop. Cas. Corp, 1999 U.S. Dist. LEXIS 16716 (E.D. Pa October 27, 1999) the court granted transfer because, in the alternative forum: (a) 17

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the majority of the witnesses and the defendant's headquarters were located; (b) the alleged violations arose; and (c) the trial judge had a "virtually identical case" before him, involving the same class. Id. at *4, 18-19. None of these factors support transfer here. Likewise, in In re Amendt, 169 Fed. Appx 93 (3rd Cir. 2006) defendant first-filed a declaratory judgment action in Illinois, and plaintiffs sought a transfer of that action to Pennsylvania. That transfer was denied. A year after the Illinois action was filed, plaintiffs filed "essentially identical litigation" in Pennsylvania. Id at 96. The Pennsylvania court transferred to Illinois, finding that the new case was merely an attempt by plaintiffs to re-litigate the Illinois denial of transfer. Id. Dentsply's remaining cases are also readily distinguished on their facts. See, e.g., Bank of America NA v. US Airways, Inc., 2005 U.S. Dist LEXIS 34902, *8-9 (D. Del. December 21, 2005) (transfer granted where "functionally identical" claims were before bankruptcy court and depended upon interpretation of reorganization plan); Woodall v. Piper Aircraft, 1983 U.S. Dist LEXIS 17465, *8-9 (M.D. Pa April 25, 1983) (transfer granted where related case involved same parties and facts, and sole basis for filing in transferor court appeared to be to avoid bad law); Job Haines Home for the Aged v. Young, 936 F. Supp. 223, 227, 233 (D.N.J. 1996) (granting transfer where "the underlying facts have virtually nothing whatsoever to do with the forum state", while venue of related cases was the situs of the conduct at issue); Liggett Group Inc. v. R.J. Reynolds Tobacco Co.

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102 F. Supp 2d 518, 533 (D.N.J. 2000) (transfer granted to home forum of defendant, where anticompetitive policy was developed, implemented and monitored). 2. The Nowak Action Will Involve Questions of Law Not Addressed in Hess

In claiming that Judge Robinson has already addressed Nowak's estoppel claims, and determined the preclusive effects of the Third Circuit's holdings in the government action, Dentsply mistakes (or intentionally obfuscates) the essential and important distinction between direct and indirect purchaser actions. Nowak brings this antitrust case on behalf of a proposed class of direct purchasers, which, as the Third Circuit has recognized, are the only purchasers with standing to assert a Section 2 claim against Dentsply. See, supra at 7-8. By contrast, Hess is an indirect purchaser case wherein a Section 2 claim against Dentsply was dismissed because Illinois Brick precludes such recovery. As Dentsply concedes, the Hess plaintiffs argued that the Third Circuit had determined that consumers (i.e. indirect purchasers) paid artificially high prices. (Def. Brf. at 6). Judge Robinson ultimately rejected this argument, holding that the question of whether consumers suffered antitrust injuries was not necessarily litigated in the government action. See Hess, 2007 U.S. Dist. LEXIS 71563 at *25. However, as established by Illinois Brick and its progeny, the question of whether

19

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indirect purchasers were injured is irrelevant to the determination of whether direct purchasers were overcharged. 17 Accordingly, Judge Robinson's prior decisions in Hess and final adjudication of what remains of that case, has little bearing on the claims to be litigated in Nowak, Univac and Lactona.18 In contrast, the Third Circuit's

determination in the government case - that Dentsply's conduct harmed competition - will be directly relevant and dispositive in these cases, because these entities, unlike Hess, are particularly privileged to act as "private attorneys general" in enforcing the antitrust laws and recovering damages resulting from anticompetitive conduct. See Illinois Brick, 431 U.S. at 746-747.

V. CONCLUSION Dentsply offers no rationale as to why this Court, plaintiffs, potential witnesses, and third parties would be best served by moving only Nowak to

17

An "overcharge" is the difference between the price that was actually paid and the price that would have been paid had the anti-competitive conduct not occurred. It is widely accepted that direct purchasers have the right to pursue damages measured as overcharges under Section 4 of the Clayton Act. See Illinois Brick, 431 U.S. at 729 ("the overcharged direct purchaser . . . is the party `injured in his business or property' within the meaning of [that] section"). 18 Dentsply's argument that the preclusive effect of another court's opinion should be considered by "the court that rendered the original judgment" is makeweight. (Def. Brf. at 13). It is not Judge Robinson's decisions, but the holding of the Third Circuit which Nowak, Univac and Lactona invoke for its preclusive effect before this Court. 20

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Delaware while leaving Univac and Lactona in Pennsylvania, thereby separating three similar cases and trying them in two separate fora. Transfer of the Nowak

case to Delaware would not facilitate the goals of section 1404(a); it would only jeopardize those goals, burdening the Delaware court and creating the possibility of inconsistent judgments. Accordingly, Defendant's motion to transfer should be denied. Dated: January 10, 2008 Respectfully submitted, /s/ Steven E. Grubb, Esq. Steven E. Grubb GOLDBERG KATZMAN, P.C. 320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, PA 17108 Tel: (717) 234-4161 Fax: (717) 234-6808

GARWIN GERSTEIN & FISHER LLP Bruce E. Gerstein Noah Silverman Adam Steinfeld 1501 Broadway, Suite 1416 New York, NY 10036 Tel: (212) 398-0055 Fax: (212) 764-6620

KAPLAN, FOX & KILSHEIMER, LLP Linda Nussbaum 850 Third Avenue New York, NY 10022 Tel: (212) 687-1980 Fax: (212)687-7714

ODOM & DES ROCHES, L.L.P. John Gregory Odom Stuart E. Des Roches Suite 2020, Poydras Center 650 Poydras Street 21

PHELPS DUNBAR, LLP Brent B. Barrier 365 Canal Street, Suite 2000 New Orleans, LA 70130 Tel: (504) 566-1311

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New Orleans, LA 70130 Tel: (504) 522-0077 Fax: (504) 522-0078 PERCY, SMITH & FOOTE, L.L.P. David P. Smith W. Ross Foote 720 Murray Street P.O. Box 1632 Alexandria, LA 71309 Tel: (318) 445-4480 Fax: (318) 487-1741

Fax: (504) 568-9130

KOZYAK TROPIN & THROCKMORTON Adam Moskowitz 2525 Ponce de Leon Blvd., 9th Floor Miami, FL 33134 Tel: (305) 372-1800 Fax: (305) 372-3508

Counsel for the Plaintiff, Louisiana Wholesale Drug Co., Inc.

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CERTIFICATE OF COMPLIANCE PURSUANT TO LOCAL RULE 7.8(b)(2) Pursuant to Local Rule 7.8(b)(2), it is hereby certified that the foregoing Plaintiff Nowak's Memorandum in Opposition to Defendant Dentsply's Motion to Transfer Venue contains 4,957 words, exclusive of the title page, table of contents, table of authorities this certificate of compliance, and certificate of service according to the Microsoft Word word processing system used to prepare it, and that the memorandum therefore complies with the type-volume limitations of Local Rule 7.8(b)(2).

/s/ Adam Steinfeld Name of Attorney Dated January 10, 2008

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CERTIFICATE OF SERVICE

It is hereby certified that a copy of the foregoing document was served this 10th day of January 2008 via electronic means upon counsel via the ECF filing system.

/s/ Adam Steinfeld Adam Steinfeld

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APPENDIX OF UNREPORTED CASES

In Re AT&T Access Charge Litigation, 2005 U.S. Dist. LEXIS 35431 (D.D.C. 2005 Ayling v. Traveler's Prop. Casualty Corp, 1999 U.S. Dist. LEXIS 16716 (E.D. Pa 1999) Bank of America NA v. US Airways, Inc., 2005 U.S. Dist. LEXIS 34902 (D.Del. 2005) Fusi v. Emery World Airlines, 2007 U.S. Dist. LEXIS 89784 (S.D. Ohio 2007) Howard Hess Dental Laboratories, Inc. v. Dentsply International, Inc., 2007 U.S. Dist. LEXIS 71563 (D. Del. Sept. 26, 2007) Kedia v. Jamal, 2007 U.S. Dist. LEXIS 48474 (D.N.J. 2007) Kucala Enterprises v. Automobile Wax Co., 2007 U.S. Dist. LEXIS 13147 (N.D. Ill. 2002) Woodall v. Piper Aircraft, 1983 U.S. Dist. LEXIS 17465 (M.D. Pa 1983)

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ATTACHMENT A

Nowak Dental Supplies, Inc. v. Dentsply International, Inc. No. 1:07-cv-001799 (M.D.Pa.). Univac Dental Co. v. Dentsply International, Inc., No. 1:07 CV-00493 (M.D.Pa.). Lactona Co. v. Dentsply International, Inc., No. 1:07 CV-00774 (M.D.Pa.).

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APPENDIX OF UNREPORTED CASES

In Re AT&T Access Charge Litigation, 2005 U.S. Dist. LEXIS 35431 (D.D.C. November 16, 2005) Ayling v. Traveler's Prop. Casualty Corp, 1999 U.S. Dist. LEXIS 16716 (E.D. Pa October 27, 1999) Bank of America NA v. US Airways, Inc., 2005 U.S. Dist. LEXIS 34902 (D. Del. December 21, 2005) Fusi v. Emery World Airlines, 2007 U.S. Dist. LEXIS 89784 (S.D. Ohio November 23, 2007) Howard Hess Dental Laboratories, Inc. v. Dentsply International, Inc., 2007 U.S. Dist. LEXIS 71563 (D. Del. Sept. 26, 2007) Kedia v. Jamal, 2007 U.S. Dist. LEXIS 48474 (D.N.J. July 5, 2007) Kucala Enterprises v. Automobile Wax Co., 2002 U.S. Dist. LEXIS 13147 (N.D. Ill. July 18, 2002) Woodall v. Piper Aircraft, 1983 U.S. Dist. LEXIS 17465 (M.D. Pa April 25, 1983)

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LEXSEE

IN RE: AT&T ACCESS CHARGE LITIGATION Civil Action No. 05-1360 (ESH) UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA 2005 U.S. Dist. LEXIS 35431

November 16, 2005, Decided November 16, 2005, Filed CASE SUMMARY: CORE TERMS: place of business, venue, convenience, ties, access charges, telephone, choice of forum, long-distance, involvement, deference, switched, fraudulent schemes, corporate headquarters, public interest, telecommunications, collectively, transferee, nationwide, carriers, lawsuit, weigh, fora, coordinated action, federal agencies, calling cards, interest of justice, balance of convenience, substantial deference, travel expenses, phone-to-phone LexisNexis(R) Headnotes

PROCEDURAL POSTURE: The case was a coordinated action related to defendant corporation's alleged failure to pay required charges for its use of plaintiffs, local telephone networks', facilities to receive and complete long-distance telephone calls. The corporation moved under 28 U.S.C.S. § 1404(a) to transfer venue to the United States District Court for the District of New Jersey, which was opposed by the networks. OVERVIEW: The networks did not dispute that venue would have been appropriate in the District of New Jersey. Thus, the only question before the court was whether the public and private factors weighed heavily enough in favor of New Jersey to warrant transfer under 28 U.S.C.S. § 1404 to that district. The court found that because the District of Columbia had no meaningful ties to the controversy and no particular interest in the parties or subject matter, deference to the networks' choice of forum was not appropriate. Considering the public interest factors, New Jersey had a much stronger interest in resolving the dispute as compared to the District of Columbia where although the case involved alleged damages in a multitude of states, the actions in question were undertaken by a New Jersey corporation and implemented by New Jersey-based employees, and the State of New Jersey had a significant interest in allegations of fraudulent activity by its corporations and certainly had a greater interest than the District of Columbia, where very few of the alleged harms were manifested and most of the parties have virtually no ties. OUTCOME: The corporation's motion to transfer was granted.

Civil Procedure > Venue > Federal Venue Transfers > General Overview Civil Procedure > Venue > Motions to Transfer > Convenience of Parties Civil Procedure > Venue > Motions to Transfer > Convenience of Witnesses Civil Procedure > Venue > Motions to Transfer > Interests of Justice [HN1]28 U.S.C.S. § 1404(a) states that for the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought. The moving party bears the burden of showing that transfer is proper. 28 U.S.C.S. § 1404(a) grants the district court discretion to adjudicate motions to transfer according to individualized, case-by-case consideration of convenience and fairness. Courts retain broad discretion in balancing the asserted convenience and fairness to the parties.

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2005 U.S. Dist. LEXIS 35431, *

Civil Procedure > Venue > Motions to Transfer > General Overview [HN2]To succeed in a motion to transfer, defendants must make two showings. First, they must establish that the action might have been brought in the proposed transferee district. Second, they must demonstrate that the balance of convenience of the parties and witnesses and the interest of justice are in their favor. In analyzing the relative convenience of the competing venues, a court must weigh a number of private and public interest factors. Private interest factors include, but are not limited to: (1) the plaintiffs' privilege of choosing the forum; (2) the defendants' preferred forum; (3) location where the claim arose; (4) convenience of the parties; (5) convenience of witnesses, but only to the extent that witnesses may be unavailable for trial in one of the fora; and (6) ease of access to sources of proof. Public interest considerations include: (1) the transferee's familiarity with the governing law; (2) the relative congestion of the courts of the transferor and potential transferee; and (3) the local interest in deciding local controversies at home. Courts may also consider the availability of compulsory process to compel the attendance of unwilling witnesses and other practical aspects of expeditiously and conveniently conducting a trial.

Civil Procedure > Venue > Federal Venue Transfers > General Overview Civil Procedure > Venue > Motions to Transfer > General Overview Civil Procedure > Venue > Motions to Transfer > Choice of Forum [HN5]In the context of a motion to transfer venue, after considering the plaintiffs' and the defendants' choice of fora, courts typically look to whether the claim arose in the district in which suit was filed.

Civil Procedure > Venue > Federal Venue Transfers > Convenience Transfers Civil Procedure > Venue > Motions to Transfer > Convenience of Parties [HN6]In the context of a motion to transfer venue, courts consider the convenience of the parties. Typically, the location of counsel carries little, if any, weight in an analysis under 28 U.S.C.S. § 1404(a) since that factor can easily be manipulated thereby permitting forum shopping. Nevertheless, where convenience of counsel bears directly on the cost of litigation, it becomes a factor to consider. COUNSEL: [*1] For ITC DELTACOM COMMUNICATIONS, INC., BUSINESS TELECOM, INC., BUSINESS TELECOM OF VIRGINIA, INC., Plaintiffs: Eric Jay Branfman, Swidler Berlin LLP, Washington, DC. For CONSOLIDATED COMMUNICATIONS OF TEXAS COMPANY, (CA-05-2047), Plaintiff: Anitra D. Goodman, SWIDLER & BERLIN, CHARTERED, Washington, DC; Eric Jay Branfman, Swidler Berlin LLP, Washington, DC; Joshua M. Bobeck, SWIDLER BERLIN, LLP, Washington, DC. For GRANITE TELECOMMUNICATIONS, LLC, (CA-05-1416), RCN TELECOM SERVICES, INC., (CA-05-1432), RCN-BECOCOM, LLC, (CA-05-1432), STARPOWER COMMUNICATIONS, LLC, (CA-05-1432), RCN TELECOM SERVICES OF WASHINGTON, D.C., INC., (CA-05-1432), RCN TELECOM SERVICES OF MASSACHUSETTS, INC., (CA-05-1432), RCN TELECOM SERVICES OF ILLINOIS, LLC, (CA-05-1432), MCCLURE TELEPHONE COMPANY, (CA-05-1681), LEXCOM TELEPHONE COMPANY, (CA-05-1740), SUPRA TELECOMMUNICATIONS & INFORMATION SYSTEMS, INC., (CA-05-1785), PRAIRIE GROVE TELEPHONE COMPANY, (CA-05-1858), ATX COMMUNICATIONS, INC., CA-05-2067), Plaintiff: Anitra D. Good-

Civil Procedure > Venue > Motions to Transfer > Choice of Forum [HN3]The first private interest factor, the plaintiffs' choice of forum, is a paramount consideration in any determination of a transfer request. Typically, courts accord plaintiffs' choice of forum substantial deference when analyzing a transfer motion. While a court may not transfer simply because it thinks another forum may be superior to plaintiffs' chosen forum, such deference is substantially diminished where the chosen forum is neither their home forum nor has any meaningful ties to the controversy.

Civil Procedure > Venue > Federal Venue Transfers > General Overview Civil Procedure > Venue > Motions to Transfer > General Overview [HN4]The United States District Court for the District of Columbia has ruled on several occasions that mere involvement on the part of federal agencies, or some federal officials who are located in Washington D.C. is not determinative. The court has held that courts in the District of Columbia Circuit must examine challenges to venue carefully to guard against the danger that a plaintiff might manufacture venue in the District of Columbia by alleging the involvement of government officials.

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2005 U.S. Dist. LEXIS 35431, *

man, SWIDLER & BERLIN, CHARTERED, Washington, DC. For AT&T CORP., AT&T COMMUNICATIONS, INC., Defendants: Brendan James McMurrer, Michael Joseph Hunseder, SIDLEY AUSTIN [*2] BROWN & WOOD, Washington, DC; David M. Schiffman, Chicago, IL. For AT&T CORP., AT&T COMMUNICATIONS, INC., Counter Claimants: Brendan James McMurrer, Michael Joseph Hunseder, SIDLEY AUSTIN BROWN & WOOD, Washington, DC; David M. Schiffman, Chicago, IL. For CONSOLIDATED COMMUNICATIONS OF TEXAS COMPANY, CONSOLIDATED COMMUNICATIONS OF FORT BEND COMPANY, ILLINOIS CONSOLIDATED TELEPHONE COMPANY, ATX COMMUNICATIONS, INC., CA-05-2067), Counter Defendants: Anitra D. Goodman, SWIDLER & BERLIN, CHARTERED, Washington, DC. JUDGES: ELLEN SEGAL HUVELLE, United States District Judge. OPINION BY: ELLEN SEGAL HUVELLE OPINION MEMORANDUM OPINION This case is a coordinated action relating to defendant AT&T Corp.'s alleged failure to pay required charges for its use of plaintiffs' local telephone network facilities to receive and complete long-distance telephone calls. Before the Court is AT&T Corp.'s and AT&T Communications, Inc.'s (collectively "AT&T" or "defendants") Motion to Transfer Venue to the United States District Court for the District of New Jersey, which is opposed by plaintiffs. For the reasons discussed below, the Court will grant defendants' motion. BACKGROUND This coordinated [*3] action currently includes eleven complaints brought by seventeen plaintiffs -- a number that is likely to grow. 1 Each plaintiff claims that AT&T underpaid federal and state mandated switched access charges to local exchange carriers for the use of local exchange facilities to originate and terminate long-distance calls. Plaintiffs allege that defendants began disguising long-distance calls as interexchange calls sometime in 2000 in order to avoid detection and thereby avoid the applicable switched access charges. Plaintiffs contend defendants orchestrated and implemented two fraudulent schemes, one using phone-to-phone Internet

Protocol telephony technology and the other using AT&T's prepaid calling cards, through concerted action by employees at AT&T corporate headquarters in New Jersey. 1 The current plaintiffs include: ITC¬DeltaCom, Inc. ("ITCD"), an Alabama corporation with its principal place of business in Huntsville, Alabama; Business Telecom, Inc. and Business Telecom of Virginia, Inc. (collectively "BTI"), a North Carolina and a Virginia corporation, respectively, with their principal place of business in Huntsville, Alabama; Granite Telecommunications, LLC ("Granite"), a Delaware corporation with its principal place of business in Quincy, Massachusetts; RCN Telecom Services of Illinois, an Illinois company with its principal place of business in Chicago, Illinois; RCN Telecom Services, Inc., a Pennsylvania corporation with its principal place of business in Princeton, New Jersey; RCN Telecom Services of Philadelphia, Inc., a Pennsylvania corporation with its principal place of business in Princeton, New Jersey; RCN Telecom Services of Massachusetts, Inc., a Massachusetts corporation with its principal place of business in Princeton, New Jersey; RCN Telecom Services of Washington, D.C., Inc., a District of Columbia corporation with its principal place of business in Princeton, New Jersey; RCN BecoCom LLC, a Massachusetts corporation with its principal place of business in Princeton, New Jersey; Starpower Communications LLC, a Delaware corporation with its principal place of business in Princeton, New Jersey; McClure Telephone Co. ("McClure"), an Ohio company with its principal place of business in McClure, Ohio; Lexcom Telephone Co. ("Lexcom"), a North Carolina company with its principal place of business in Lexington, North Carolina; Supra Telecommunications and Information Systems, Inc. ("Supra), a Florida company with its principal place of business in Miramar, Florida; Illinois Consolidated Telephone Co. ("ICTC"), an Illinois corporation with its principal place of business in Mattoon, Illinois; Consolidated Communications of Fort Bend Co. ("CCFB") and Consolidated Communications of Texas ("CCTX"), both Texas corporations with their principal place of business in West Conroe, Texas; and Prairie Grove Telephone Co. ("Prairie Grove"), an Arkansas company with its principal place of business in Prairie Grove, Arkansas. [*4] Two years after implementing these allegedly fraudulent schemes, AT&T filed two petitions with the Federal Communications Commission ("FCC") requestPage 3

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2005 U.S. Dist. LEXIS 35431, *

ing that specific types of long-distance calls, calls matching the types alleged by the plaintiffs, be exempt from access charges. The FCC ultimately rejected both of AT&T's petitions on April 21, 2004 and February 23, 2005. See Petition for a Declaratory Ruling that AT&T's Phone-to-Phone IP Telephony Services are Exempt from Access Charges, WC Docket No. 02-361, Order, 19 F.C.C.R. 7457 (2004); AT&T Corp. Petition for Declaratory Ruling Regarding Enhanced Prepaid Calling Card Services, WC Docket Nos. 03-313 and 05-68, Order and Notice of Proposed Rulemaking, 20 F.C.C.R. 4826 (2005). Furthermore, the FCC instructed local exchange carriers to pursue collection actions against AT&T for any unpaid access charges with an appropriate court. ITCD and BTI initiated this action on July 7, 2005. Several additional plaintiffs subsequently filed identical complaints, causing the Court on September 23, 2005, to issue a Case Management Order coordinating the actions for pre-trial purposes. In response to the Case Management [*5] Order, AT&T withdrew the Motion to Transfer Venue it had previously filed on September 12, 2005, in the individual actions and re-filed it ("Defs.' Mot.") on September 30, 2005 as part of the coordinated action. Plaintiffs filed a joint Opposition to the Motion to Transfer Venue ("Pls.' Opp'n") on October 14, 2005, to which defendants filed a Reply ("Defs.' Reply") on October 24, 2005. ANALYSIS Defendants seek to transfer this case pursuant to 28 U.S.C. § 1404(a), which states: [HN1]"For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." The moving party bears the burden of showing that transfer is proper. Trout Unlimited v. U.S. Dep't of Agric., 944 F. Supp. 13, 16 (D.D.C. 1996). Section 1404(a) grants the district court discretion to "adjudicate motions to transfer according to individualized, case-by-case consideration of convenience and fairness.'" Reiffin v. Microsoft Corp., 104 F. Supp. 2d 48, 50 (D.D.C. 2000) (quoting Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S. Ct. 2239, 101 L. Ed. 2d 22 (1988)). [*6] Courts retain broad discretion in balancing the asserted convenience and fairness to the parties. Sheraton Operating Corp. v. Just Corporate Travel, 984 F. Supp. 22, 25 (D.D.C. 1997). [HN2]To succeed in a motion to transfer, defendants must make two showings. First, they must establish that this action might have been brought in the proposed transferee district, i.e., the District of New Jersey. DeLoach v. Philip Morris Cos., 132 F. Supp. 2d 22, 24 (D.D.C. 2000). Second, they must "demonstrate that the

balance of convenience of the parties and witnesses and the interest of justice are in their favor." Consol. Metal Prods., Inc. v. Am. Petroleum Inst., 569 F. Supp. 773, 774 (D.D.C. 1983). In analyzing the relative convenience of the competing venues, a court must weigh a number of private and public interest factors. Reiffin, 104 F. Supp. 2d at 51-52. Private interest factors include, but are not limited to: (1) plaintiffs' privilege of choosing the forum; (2) defendants' preferred forum; (3) location where the claim arose; (4) convenience of the parties; (5) convenience of witnesses, but only to the extent that witnesses [*7] may be unavailable for trial in one of the fora; and (6) ease of access to sources of proof. Airport Working Group of Orange County, Inc. v. U.S. Dep't of Def., 226 F. Supp. 2d 227, 229 (D.D.C. 2002) (citing Trout Unlimited, 944 F. Supp. at 16). Public interest considerations include: (1) the transferee's familiarity with the governing law; (2) the relative congestion of the courts of the transferor and potential transferee; and (3) the local interest in deciding local controversies at home. Id. Courts may also consider the availability of compulsory process to compel the attendance of unwilling witnesses and other practical aspects of expeditiously and conveniently conducting a trial. See Reiffin, 104 F. Supp.2d at 52; SEC v. Page Airways, Inc., 464 F. Supp. 461, 463 (D.D.C. 1978); accord 15 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §§ 3848-3854 (2d ed. 1986). Given the substantial ties of defendants to the District of New Jersey, there can be no dispute that all of the cases that have been coordinated here could have been brought in the District of New Jersey. AT&T maintains [*8] corporate headquarters in Bedminster, New Jersey, is subject to personal jurisdiction in that district, and venue is proper there under 28 U.S.C. § 1391(b) and (c) as its relevant entities reside in New Jersey. Plaintiffs do not dispute that venue would be appropriate in the District of New Jersey. Thus, the only question before the Court is whether the public and private factors outlined above weigh heavily enough in favor of New Jersey to warrant transfer to that district. [HN3]The first private factor, plaintiffs' choice of forum, is a "paramount consideration" in any determination of a transfer request. Sheraton Operating Corp., 984 F. Supp. at 25. Typically, courts accord plaintiffs' choice of forum "substantial deference" when analyzing a transfer motion. Gross v. Owen, 95 U.S. App. D.C. 222, 221 F.2d 94, 95 (D.C. Cir. 1955) ("It is almost a truism that a plaintiff's choice of a forum will rarely be disturbed . . . unless the balance of convenience is strongly in favor of the defendant."); see also Reiffin, 104 F. Supp. 2d at 52. While a court may not transfer simply because it thinks another forum may be superior to plaintiffs' [*9] chosen forum, Shapiro, Lifschitz & Schram,