Significant Historical Cases

Wall Prods. Co. v. National Gypsum Co. (U.S. District Court, Northern District of California)

In 1967, THE FURTH FIRM LLP’s founding partner, Frederick P. Furth, initiated an antitrust class action against gypsum wallboard manufacturers alleging a price-fixing conspiracy. The litigation expanded to cover 5,500 plaintiffs in over 140 cases, several hundred lawyers and seven defendants. The cases were consolidated in the courtroom of Judge Alfonso Zirpoli, who ordered separate trials on damages and liability. The pilot cases were tried and won on both liability and damages; a classwide settlement was reached in 1973 for $70 million, which, with interest, totaled $82 million. Published opinions: 326 F.Supp. 295 (N.D.Cal. 1971); 357 F.Supp. 832 (N.D.Cal. 1973); and 386 F.Supp. 959 (N.D.Cal. 1974).

American Basketball Ass'n v. National Basketball Ass'n (United States District Court, Northern District of California)

In an antitrust suit filed in 1969, THE FURTH FIRM LLP represented the American Basketball Association (“ABA”), then only two years old, against the National Basketball Association (“NBA”). The ABA alleged that the NBA attempted to eliminate competition and restrain trade through the control or monopolization of superstars and other players, facilities and television coverage. A settlement was reached in 1971, whereby both leagues promised to petition Congress for antitrust exemption legislation. Contending that the NBA was not honoring this agreement and was continuing to restrain trade, the ABA filed a second action in 1974. In 1976, the ABA and NBA settled a few weeks before trial, with the Denver Nuggets, Indiana Pacers, San Antonio Spurs and New York Nets joining the NBA. Published opinions: 404 F.Supp. 832 (S.D.N.Y. 1975); 389 F.Supp. 867 (S.D.N.Y. 1975).

Kellogg Company - Shared Monopoly Case (Federal Trade Commission, D.D.C.)

THE FURTH FIRM LLP represented Kellogg Company in this case which literally threatened the company's existence. The Federal Trade Commission (“FTC”) sought to establish the power to regulate highly concentrated industries under Section 5 of the FTC Act even where no violation of the antitrust laws was shown. The FTC sought to break Kellogg into four companies based on the claim that it had shared a cereal monopoly with three other major cereal manufacturers through parallel, non-collusive activity. The FTC also sought to compel Kellogg to license its trademarks on a royalty-free basis. The case involved industrial organization issues of parallel corporate conduct, creation of barriers to entry and excess profitability. With its comprehensive knowledge of antitrust law and principles, THE FURTH FIRM LLPdeveloped creative defense strategies and presented and rebutted highly sophisticated economic testimony. The FTC ultimately dismissed the case, after the administrative law judge ruled in Kellogg's favor on nearly every disputed issue of fact.

In re: Plywood Antitrust Litigation (United States Court of Appeals for the Fifth Circuit)

After the Fifth Circuit upheld a jury verdict finding that three plywood manufacturers &emdash; Georgia Pacific Corp., Weyerhaeuser Co. and Willamette Industries &emdash; had conspired to fix delivered prices, with possible damages estimated to be as high as $2 billion, THE FURTH FIRM LLP was retained as lead defense counsel. THE FURTH FIRM LLP promptly won important rulings on the damages phase of the case at the trial level and led a successful effort to have the Supreme Court grant certiorari to review the verdict of liability. The case was eventually settled through the negotiating efforts of the firm, for a sum far less than projected damage exposure. Published opinions: 655 F.2d 627 (5th Cir. 1981); 663 F.2d 101 (5th Cir. 1981), cert. dismissed, 462 U.S. 1125 (1983).

Southern Pacific Comm. Co. v. AT&T (U.S. District Court, District of Columbia; U.S. District Court, Northern District of California).

In December of 1982, Southern Pacific Co. had lost an antitrust action in the federal district court for the District of Columbia against AT&T for attempting to monopolize the market for private line telecommunications services (the “SP I” case). Also, the time was running out for filing a second action against AT&T for attempting to monopolize the market for switched telephone services (the “SP II” case). Southern Pacific retained THE FURTH FIRM LLP who stepped in and vigorously briefed and argued the appeal. Although the District of Columbia Circuit upheld the judgment below, the former President of Southern Pacific said, "[Y]our firm did an absolutely superb job before the Court of Appeals." THE FURTH FIRM LLP also filed SP II in the federal district court in San Francisco, where it was consolidated for discovery purposes with similar actions by MCI and U.S. Transmission Systems. AT&T's summary judgment motion based on res judicata was defeated in mid-1985. While additional summary judgment motions were pending, the case settled quite favorably for Southern Pacific. Published opinions: 740 F.2d 980 (D.C.Cir.), cert. denied, 470 U.S. 1005 (1984); 740 F.2d 1011 (D.C.Cir. 1984).

ETSI Pipeline Project v. Burlington Northern, Inc. (U.S. District Court, Eastern District of Texas)

This litigation was one of the largest cases ever tried in federal court. The case involved allegations that a group of railroads, including the Atchison, Topeka & Santa Fe Railway Co., conspired over a ten-year period to prevent a pipeline from being built that would transport slurried coal from South Dakota to Texas. The plaintiffs included Bechtel Corp., Texas Eastern Pipeline Co., Houston Lighting & Power Co. and the Lower Colorado River Authority/City of Austin. THE FURTH FIRM LLP entered the case in October of 1987, as chief defense counsel for Santa Fe. Over the next two years, THE FURTH FIRM LLP was involved in hundreds of depositions, the writing of dozens of briefs on nearly every conceivable aspect of antitrust law and trial procedure, and the preparation for a lengthy trial. Trial commenced in Beaumont, Texas in January of 1989 and lasted two months. Santa Fe by then was the only remaining defendant. After the jury found for ETSI but against HL&P, THE FURTH FIRM LLP participated in a vigorous appeal, and the case was eventually settled when the client moved forward with its restructuring program.

Sullivan v. National Football League (U.S. District Court, District of Massachusetts; U.S. Court of Appeals for the First Circuit)

THE FURTH FIRM LLP served as co-lead counsel for the plaintiff, the former owner of the New England Patriots NFL Franchise, in an antitrust action challenging the league's policy forbidding public ownership of member clubs. The first trial resulted in the largest treble-damage verdict entered against the NFL, $114 million, later remitted to $51 million. This verdict was overturned when the First Circuit determined that the trial court had improperly refused to give certain jury instructions, although the appellate court did agree that triable issues existed as to liability and damages. After a second trial resulted in a deadlocked jury, the case was settled by mediation.

Merck/Medco Antitrust Merger Litigation (U.S. District Court, Northern District of California)

THE FURTH FIRM LLP represented a retail pharmacist, suing on behalf of pharmacists nationwide, in a private antitrust case under Section 7 of the Clayton Act. This action challenged the acquisition by Merck & Co. of Medco Containment Services, Inc., the nation's largest pharmacy benefits management company. Defendant's motion for summary judgment was denied, and the case settled shortly before trial.

In re: Toys "R" Us Antitrust Litigation (Superior Court for Alameda County, California; U.S. District Court, Eastern District of New York)

This consumer class action sought redress for alleged anticompetitive practices of Toys "R" Us, Inc. pertaining to efforts to restrict the sale of toys to warehouse club stores. THE FURTH FIRM LLP was on the steering committee in this complex, multi-district litigation.

Sand and Gravel Price-Fixing Litigation (U.S. District Court, Northern District of California)

THE FURTH FIRM LLP represented a plaintiff class in this price-fixing case involving the sand and gravel industry. A settlement favorable to the class was reached prior to trial.

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