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As attorney Ira Richards sees it, when you’re pushed out of the tent, the thing to do is simply pitch your own tent — and make it a big one. In this case, the tent is a class action antitrust suit brought by direct purchasers against office supply giant 3M for allegedly monopolizing the market for transparent tapes. The case directly stems from a competitor’s lawsuit, LePage’s Inc. v. 3M, which resulted in a $68 million verdict. The purchasers’ class action, Bradburn Parent/Teacher Store Inc. v. 3M, at first hit a snag when U.S. District Judge John R. Padova refused to certify the class, finding that it suffered from internal conflicts since small-volume retailers who sold only 3M’s brand name tapes — Scotch and Highland — would likely take a different approach to proving their damages from large-volume retailers who also sold 3M’s “private label” or store brand tapes. The plaintiffs’ lawyers solved the problem by narrowing the class to exclude such large-volume retailers. The tactic worked and Padova certified the new, narrower class. At that point, a group of lawyers led by Richards moved to intervene in Bradburn on behalf of a class of large-volume retailers led by Meijer Inc. Padova rejected the motion, ruling that Meijer cannot be allowed to join the class because it waited too long to intervene and its introduction now would lead to “undue delay.” “If Meijer were granted leave to intervene, the matter of class certification would have to be reopened, additional discovery would have to be conducted, and a further motion for class certification would have to be filed,” Padova wrote. Padova also found that “there is nothing which would prevent Meijer from filing its own individual or class action lawsuit,” noting that another purchaser of “private label” tape, Publix Super Markets Inc., “has done just that.” Publix, represented by attorneys Anthony Bolognese and Joshua H. Grabar of Bolognese & Associates, along with Paul E. Slater of Sperling & Slater in Chicago, filed their individual action for Publix on Sept. 17. Now Meijer has followed suit by filing a proposed class action on behalf of the large-volume retailers. In the suit, attorney Ira Neil Richards of Trujillo Rodriguez & Richards in Philadelphia leads a group that includes Kathryn C. Harr of Trujillo Rodriguez; Joseph M. Vaneck, Thomas A. Vickers and David P. Germaine of Daar & Vaneck in Chicago; and Daniel A. Small, Brent W. Landau and Linda P. Nussbaum of Cohen Milstein Hausfeld & Toll’s New York and Washington offices. All of the direct purchaser suits will directly benefit from the rulings and findings that came in LePage’s, in which a federal jury in October 1999 awarded $68 million to LePage’s after finding that 3M used illegal tactics to drive it out of business. Several years of hard-fought appeals followed in the LePage’s case. The verdict was initially overturned by the 3rd U.S. Circuit Court of Appeals, but the appellate court later reheard the case en banc and voted 7-3 to uphold the award. In late June 2004, the U.S. Supreme Court refused to hear the case. Meijer’s decision to file its own proposed class action came after a round of litigation in which it fought unsuccessfully to intervene in the Bradburn case. In its motion to intervene, Meijer argued that, with the narrowing of the class, its “interests are no longer being represented.” But Padova, in a 12-page opinion handed down Dec. 10, ruled that Meijer has no right to intervene since it waited too long and couldn’t show that its rights were threatened by allowing the Bradburn case to go forward without it. “As early as March 1, 2004, Meijer … was on notice not only of its exclusion from the original class,” Padova wrote. Padova noted that his March opinion attached “particular importance” to the fact that potential large-volume claimants such as Meijer “had not demonstrated any interest in pursuing claims” against 3M. “Nevertheless, Meijer remained silent regarding its interest in pursuing class claims against defendant for an additional six months while the … litigation continued to press forward,” Padova wrote. In their brief, Meijer’s lawyers argued that its interests were not adequately represented because Padova had certified a “modified” class that excludes Meijer. Padova disagreed, saying, “the mere fact that Meijer was excluded from the current class, however, does not mean that its interests in the present litigation are inadequately represented.” Instead, Padova said, the finding of a conflict of interest between the class and large-volume retailers such as Meijer was premised on the assumption that claimants such as Meijer would pursue a lost-profits rather than overcharge theory of recovery. Since Meijer now argues that it would pursue the same theory of recovery as the class, Padova found that the class and its lawyers will adequately represent Meijer’s interests. “The court finds that the representation of Meijer’s interest in the current litigation is adequate to the extent that Meijer seeks to pursue an overcharge theory,” Padova wrote. Meijer’s lawyers focused on the final paragraph in Padova’s ruling that said there was no reason that Meijer could not pursue its own case. But instead of filing an individual suit, the Meijer team significantly expanded the litigation by proposing a large-volume-retailer class. Such a class would potentially include some of the major retailers whose sales played a key role in the LePage’s case, including Kmart and Staples.

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