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In re Chocolate Confectionary Antitrust Litigation

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


November 18, 2008

IN RE: CHOCOLATE CONFECTIONARY ANTITRUST LITIGATION

The opinion of the court was delivered by: Christopher C. Conner United States District Judge

MDL DOCKET No. 1935

(Judge Conner)

THIS DOCUMENT APPLIES TO: ALL CASES

ORDER

AND NOW, this 18th day of November, 2008, upon consideration of the motion to intervene (Doc. 494) pursuant to Rule 24(a)(2) of the Federal Rules of Civil Procedure, in which the Government of Canada seeks to participate in the above- captioned matter for the limited purpose of preserving the confidentiality of evidence produced by defendants to Canadian antitrust officials during an ongoing criminal antitrust investigation,*fn1 (see Doc. 495 at 2-3), and it appearing that a third party seeking to intervene under Rule 24(a)(2) "must establish 1) a timely application for leave to intervene, 2) a sufficient interest in the underlying litigation, 3) a threat that the interest will be impaired or affected by the disposition of the underlying action, and 4) that the existing parties to the action do not adequately represent the prospective intervenor's interests," Liberty Mut. Ins. Co. v. Treesdale, Inc., 419 F.3d 216, 220 (3d Cir. 2005); see also FED. R. CIV. P. 24(a)(2), In re Cmty.

Bank of N. Va., 418 F.3d 277, 314 (3d Cir. 2005), and the court finding that the Canadian government's motion-filed approximately five weeks after plaintiffs' motion requesting discovery of the documents it seeks to protect-qualifies as timely,*fn2 that the Canadian government's interest in safeguarding the confidentiality of information gathered from defendants constitutes a "significantly protectable" interest supporting a right of intervention, Mountain Top Condo. Ass'n v. Dave Stabbert Master Builder, Inc., 72 F.3d 361, 366 (3d Cir. 1995) (quoting Donaldson v. United States, 400 U.S. 517, 531 (1971)); Mun. Revenue Servs. v. Xspand, Inc., No. 4:CV05-0671, 2006 WL 2816602, at *2-3 (M.D. Pa. Sept. 28, 2006); see also In re Sealed Case, 237 F.3d 657, 663-64 (D.C. Cir. 2001),*fn3 that proceedings in the pending action may impair or affect this interest because plaintiffs' request for discovery of these documents is seemingly antithetical to the Canadian government's efforts to maintain the confidentiality of a pending criminal investigation, see Dev. Fin. Corp. v. Alpha Hous. & Health Care, Inc., 54 F.3d 156, 162 (3d Cir. 1995) (observing that impairment focuses upon the "practical consequences of the litigation"); In re Sealed Case, 237 F.3d at 664 (recognizing that loss of confidentiality of previously undisclosed materials constitutes an impairment supporting intervention), and that none of the parties hereto adequately represent the Canadian government's sovereign interest in maintaining the integrity of its criminal investigations,*fn4 it is hereby ORDERED that:

1. The motion to intervene (Doc. 494), filed by the Government of Canada is GRANTED for the limited purpose of asserting the confidentiality or privilege of materials produced by defendants to Canadian antitrust enforcement officials.

2. The Clerk of Court is instructed to ADD the Government of Canada as an intervening defendant in the above-captioned matter. See FED. R. CIV. P. 21.


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