Hearing held in Miss. AG Hood's vitamin antitrust suit

BRANDON, Miss. (Legal Newsline) - A multi-motion hearing was held Friday in Mississippi Attorney General Jim Hood's vitamin antitrust case.

Hood first filed the case in the Rankin County Chancery Court in 2006 "on behalf of the State of Mississippi in its sovereign capacity for injuries the State has sustained as purchasers and in the State's capacity as parens patriae."

The Judicial Panel on Multidistrict Litigation ordered the case removed to the District Court of the District of Columbia for consolidated proceedings for related actions alleging antitrust violations related to vitamins and vitamin products. Hood successfully had the case remanded back to Rankin County Chancery in 2009 before it was transferred to the Rankin County Circuit Court in 2010 where it is now being litigated.

Hood seeks to obtain damages, fees, and penalties for the State of Mississippi in this suit. A similar case, the Indirect Vitamin National Class Action, a lawsuit involving most of the same defendants, was settled for $225 million in October 2000 with more than 20 states participating. Mississippi did not participate in this case. A separate Consumer Class Action for the State of California was settled in 2002 for $80 million.

The following matters were on the agenda for the Nov 2 hearing: Plaintiff's Motion for Protective Order; Plaintiff's Motion to Amend Scheduling Order; and Plaintiff's Motion to Consolidate.

Although the two sides had worked out an Agreed Protective Order for Confidential Information in the days before the hearing, there was an attempt by the State, led by Jackson attorney Brent Hazzard, to amend a portion of the agreement at the hearing.

The Protective Order sets the rules for how to handle confidential documents, often dealing with "trade secrets," that are exposed in discovery. The parties who will be privy to the confidential information are named and the procedures for deciding what material is protected are outlined.

Hazzard argued that a section of the agreement dealing with party challenges to confidentiality should be amended from "the Court" to "a Court of competent jurisdiction." He argued that similar wording in a protective order of the D.C. District Court indicated that any competent court could rule on confidential documents protected under that court's protective order when that wording is employed.

Jack Crawford of Butler Snow, attorney for the BASF Corporation, spoke for the defendants in opposition to the change which he asserted came only "27 hours" after the State had agreed to the Protective Order in its present form.

Judge John Emfinger indicated that he did not believe the wording would effect any change in how another court responded to a request for protected documents, rejected the State's effort to amend, and accepted the Agreed Protective Order as written.

The Plaintiff's Motion to Consolidate had been settled by an Agreed Order Consolidating Cases which consolidated this case ("Vitamin II") with a similar case, Jim Hood v. BASF Corporation ("Vitamin I")

Vitamin I was filed in the Hinds County Chancery Court in August, 2004, and the defendants' motion to transfer to the Rankin County Chancery Court was granted in February 2005.

The consolidating order states, "Having considered same and being otherwise fully advised in the premises, as this is an agreed order of the parties, the Court finds consolidation is in the best interests of the parties and would promote judicial economy."

The Scheduling Order, like the two prior orders, had been agreed to prior to the hearing and all the attorneys concurred that they were in agreement on it as written. When the Judge asked if there was any opposition to the Scheduling Order, Bradley Arant attorney Roy Campbell, representing Sanofi-Aventis S.A. and Aventis Pharmaceuticals, Inc. answered to the amusement of the Judge and the approximately 15 attorneys present on the matter, "Believe it or not, your honor, there isn't."

The Scheduling Order sets the State's experts to be designated by and reports served, on or before April 5. The defendant's experts and reports are due by July 5. All depositions and discovery must be complete by Sept. 6. It appears that if the matter is not settled it will go to trial in the spring of 2014.