Antitrust Law Daily Wrap Up, ANTITRUST—N.D. Cal.: Plaintiffs must be deposed in district where they filed price fixing class action, (Mar 16, 2016)

By Michael Menzhuber, J.D., LL.M.

Indirect and direct purchaser plaintiffs were required to be deposed in the district where they filed a class action that alleged a ramen noodle price-fixing conspiracy, according to a magistrate judge for the federal district court in Oakland, California (Fenerjian v. Nong Shim Company, LTD., March 15, 2016, Ryu, D.).

Indirect purchasers (IPPs) and direct purchasers (DPPs) filed a class action in the Northern District of California which alleged that Ottogi Corporation, Ltd, Ottogi America, Inc., Nongshim Co., Ltd. and Nongshim American, Inc. engaged in a price fixing conspiracy to raise the prices of their ramen noodles sold in the United States. The defendants subsequently sought to: (1) compel the IPPs and the DPPs to appear for depositions in the district where the suit was filed; and (2) compel the IPPs to search for ESI using five other common spellings or variations of the term “ramen”.

IPP’s depositions. The IPPs argued that traveling to San Francisco would create an undue hardship and that they should be deposed: (1) via video conference; or (2) if the defendants wished to depose them in person, at a location near where they lived in Massachusetts, Michigan, New York, Florida, and Hawaii. The reasons given for the undue hardship were childcare responsibilities, work, medical treatment, and financial burden for missing work.

After noting that the IPP’s declarations were devoid of detail and failed to provide basic information about each IPP’s circumstances, the magistrate judge determined that they had not demonstrated undue hardship or exception or compelling circumstance to justify a refusal to travel to forum that they chose. The magistrate judge also denied the IPP’s request that they be deposed via video conference after determining that the defendants should be able to evaluate the credibility of the named plaintiffs through in-person depositions.

DPP’s depositions. Both of the DPP’s (headquartered in New Jersey and San Jose, respectively) argued that their corporate designees should be deposed in New York. The magistrate disagreed after finding that the DPPS had not demonstrated undue hardship or exception or compelling circumstance to justify a refusal to travel to their chosen forum. The basis for the magistrate judge’s finding was that: (1) the defendants’ counsel actively working on the case were in California and Asia; (2) each of the DPPs was producing one corporate designee for purposes of the deposition; and (3) the general work responsibilities of a corporate designee was not an excuse for appearing for a deposition in the district where the DPPs filed the suit.

The case is No. 13-cv-04115-WHO.

Attorneys: Alan R. Plutzik (Bramson Plutzik Mahler & Birkhaeuser, LLP) for Stephen Fenerjian. Anne Choi Goodwin (Squire Patton Boggs [US] LLP) for Nong Shim Co., Ltd and Nongshim America, Inc. Joel Steven Sanders (Gibson, Dunn & Crutcher LLP) for Ottogi Co., Ltd.

Companies: Nong Shim Co., Nongshim America, Inc.; Ltd; Ottogi Co., Ltd.

Cases: Antitrust CaliforniaNews