# Appendix — Gulf Oil Corp. v. Copp Paving Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0041%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1974 - **Citation:** 419 U.S. 186 ## Text In the Supreme Court of the United States No. 73-1012 Gur O11 CorPoRATION, UNION O11. COMPANY OF CALIFORNIA, INDUSTRIAL ASPHALT, INC., and EpGINGTON O11 COMPANY, Petitioners, vs. Copp PAviING CoMPANY, INc., Copp EQUIPMENT ComPANY, INC., and Ernest A. Copp, Respondents. On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit PETITION FOR WRIT OF CERTIORARI FILED DECEMBER 28, 1973 WRIT OF CERTIORARI GRANTED MARCH 25, 1974 INDEX Page ar kate plan mang alin nd for the Ninth Circuit . Atpistabeeathtiian oe Complaint (filed June 24, 1970) ...... Amended Complaint (filed December 30, 1970) ~..........-.--. Answer of Defendant Union Oil Company of California to Amended Complaint (filed February 26, 1971) ................ Answer of Defendant Sully-Miller Contracting Company to Amended Complaint (filed February 26, 1971) .............. Amended Answer of Defendants Gulf Oil Corporation and Industrial Asphalt, Inc. (filed April 23, 1971) —........ Affidavit of Ernest A. Copp (filed October 29, 1971) ~........ Order of the District Court (filed December 31, 1971) ~...... Answers of Plaintiffs Copp Paving Company, Inc., Copp Equipment Company, Inc., and Ernest A. Copp to Defend- ants’ Third Set of Interrogatories Propounded to Plaintiffs (filed February 22, 1972) ... Response of Defendant Union Oil Company of California to Plaintiffs’ Interrogatories (filed February 22, 1972) -.....- Response of Defendant Union Oil Company of California to Plaintiffs’ Request for Admissions (filed February 22, EE ei icine Response of Defendant Sully-Miller Contracting Company to Plaintiffs’ Interrogatories (filed February 22, 1972) —..... Response of Defendant Sully-Miller Contracting Company to Plaintiffs’ Request for Admissions (filed February 22, 1972) Response of Defendant Gulf Oil Corporation to Plaintiffs’ Interrogatories (filed February 23, 1972) .... 1 3 13 25 31 37 51 76 85 92 101 il INDEX Response of Defendant Gulf Oil Corporation to Plaintiffs’ Requests for Admissions (filed February 23, 1972) .......... Response of Defendant Industrial Asphalt, Inc. to Plaintiffs’ Interrogatories (filed February 23, 1972) -...........-...------- Response of Defendant Industrial Asphalt, Inc. to Plaintiffs’ Requests for Admissions (filed February 23, 1972) -........ Answers of Defendant Edgington Oil Company to Interroga- tories Propounded by Plaintiff Copp with Reference to the Issue of Interstate Commerce (filed March 13, 1972) Motion of Defendants Gulf Oil Corporation, Union Oil Company of California, Industrial Asphalt, Inc., and Edgington Oil Company for Pretrial Order Limiting the Issues, and Motion of Defendant Sully-Miller Contracting Company for Summary Judgment (filed April 7, 1972) .... Affidavit of Ernest A. Copp in Opposition to Motion for Summary Judgment (filed May 8, 1972) .................-.--..-.- Order of the District Court (filed May 31, 1972). Printed as Appendix A to the Petition for Writ of Certiorari in this cause, and incorporated herein by reference — Appendix A and Appendix B to Opening Brief of Appel- lants Copp Paving Company, Inc., et al., in the Court of Appeals (filed September 26, 1972) ~..... Appendix II to Reply Brief of Appellants Copp Paving Company, Inc., et al., ee ee (filed PEED CITED. seciypmerccteinttenins Opinion of the United States Court of Appeals for the Ninth Circuit (filed October 3, 1973). Printed as Appendix B to the Petition for Writ of Certiorari in this cause, and incorporated herein by reference 135 144 149 155 .. 168 Relevant Docket Entries in the United States Court of Appeals June 30, 1972 June 30, 1972 August 14, 1972 September 26, 1972 October 19, 1972 December 5, 1972 December 26, 1972 February 5, 1973 February 5, 1973 May 16, 1973 June 13, 1973 for the Ninth Circuit (No. 72-2152) Filed Order (Koelsch & Wright) granting Appel- lants leave to appeal under 1292(b) & F.R.A.P. Docketed cause and entered appearances of counsel. Filed certified transcript of record on appeal in eleven (11) volumes: Vols. 1-9, Pleadings, origi- nal only; Vols. 10 & 11, Reporter's Transcript, original and one copy. Filed original exhibits in two boxes in Room 219. Filed 25 Appellants’ Brief. Filed Motion and Order (Duniway) extending time to file appellees’ (Union Oil & Sully-Miller, et al.) brief to December 5, 1972. Subject to recon- sideration if opposition is filed in 7 days. Filed 25 Appellees’ Brief. Filed Motion and Order (Chambers) extending time to file appellants’ reply brief to January 29, 1973. Filed Stipulation and Order (Chambers) extending time to file appellants’ reply brief to February 5, 1973. Filed 25 Appellants’ Reply Brief. Filed Order (Carter, Goodwin, Ferguson) grant- ing appellants’ motion to modify Appellants’ Reply Brief, striking paragraph V, pages 28 & 29. Argued and submitted to Carter, Goodwin, Fergu- son. 2 October 3, 1973 October 3, 1973 October 3, 1973 October 24, 1973 November 28, 1973 December 27, 1973 January 4, 1974 January 9, 1974 April 1, 1974 Appendix Ordered Opinion (Goodwin) filed and judgment to be filed and entered. Filed Opinion—reversed and remanded. Filed & entered Judgment. Filed Order (Goodwin) staying issuance of man- date to November 23, 1973. Filed Order (Goodwin) staying issuance of man- date to December 23rd. Filed Order (Goodwin) staying issuance of man- date to January 2, 1974. Advised by Supreme Court (Lorson) that petition for certiorari filed 12/28, S.C. 473-1012. Received notice from Clerk, Supreme Court re fil- ing petition for writ of certiorari, S.C. 473-1012. Filed certified copy of Supreme Court Order grant- ing certiorari, 3/25/74. Appendix 3 CuMMINS, WHITE, BREIDENBACH & ALPHSON 1200 Hilton Center 900 Wilshire Boulevard Los Angeles, California 90017 624-3431 Attorneys for Plaintiffs United States District Court Central District of California Civil Action No. 70-1394-DWW [Filed June 24, 1970] Paving Company, Inc uted Company, Inc Gulf Oil sins Union Oil Company of California, & Industrial Asphalt, Inc. Sully Miller Contracting Company, Defendants. Plaintiffs, COMPLAINT FOR RELIEF UNDER THE SHERMAN ANTLTRUST ACT, THE CLAYTON ACT. JURY TRIAL DEMANDED Plaintiff alleges as follows: Count I This complaint is filed and this action arises under the Anti- Trust Laws of the United States, more particularly as follows: Under Section 2 of the Act of Congress of July 2, 1890 [Chapter 647, 26, Stat. 209 (15 U.S.C.2)] as amended, entitled “An Act to Protect Trade and Commerce Against Unlawful Restraints and 4 Appendix Monopolies,” commonly known as the Sherman Act, and under Sections 4, 7 and 12 of the Act of Congress of October 15, 1914 [Chapter 323, 38 Stat. 731, 736 (154 USC. 15, —22)] as amended entitled “An Act to Supplement Existing Laws Against Unlawful Restraints and Monopolies and for Other Purposes,” commonly known as the Clayton Act, and under 28 U.S.C. 13, 37, as hereinafter more fully appears, in order to recover damages against defendants and each of them for injury to plaintiff in their business or property resulting from the defendants and each of their violation of the Anti-Trust Laws of the United States. Count II Defendants and each of them have offices transacting businesses and are found within the Central District of California. The violation of law hereinafter described has been and is being car- ried on within this district. DEFENDANTS Count III Gulf Oil Company, hereinafter referred to as “Gulf” is made a defendant herein. Gulf is organized and existing under the laws of the State of Delaware, has its principal place of business in Los Angeles, California, and is an integrated oil producer, re- finer and marketeer. Gulf owns one hundred percent (100%) of defendant, Industrial Asphalt, Inc. Count IV Defendant Union Oil Company of California, was incorporated in California on November 17, 1890, has its principal place of business in Los Angeles, California. Union Oil Company is an integrated oil producer, refiner and marketeer. Union is tenth in size among United States oil companies, operates nine refineries Appendix 5 with approximately 382,000 barrels per day capacity, 1500 whole- sale and bulk distributorship facilities, 18,300 service stations and other rental outlets. Count V Industrial Asphalt, Inc., is a wholly owned subsidiary of Gulf Oil Company, was incorporated in California in 1963 and has its principal place of business in Van Nuys. In 1963 Gulf pur- chased Industrial Asphalt for stock. Industrial is primarily in the construction business and operates several hot plants. The location of Industrial’s operations are as follows: Orange County, Los Angeles County, Ventura County, San Luis Obispo, West Los Angeles Area, San Bernardino County, River- side County and San Diego County. Count VI Defendant Sully Miller Contracting Company is a wholly owned subsidiary of Union Oil Company of California, was in- corporated in California in 1923 and its principal place of business is Long Beach, California. Sully Miller is primarily in the business of operating asphaltic concrete “hot plants” and contracting street improvements. Count VII Copp Paving Company, Inc. was incorporated in the State of California on June 1, 1956, and its principal place of business is at 11710 East 166th Street, Artesia, California. Count VIII Plaintiff Copp Equipment Company, Inc., was incorporated on November 20, 1956, and its principal place of business is 11700 East 166th Street, Artesia, California. Count IX Plaintiff, Ernest A. Copp, started the business under the name of Copp Paving Company in June, 1954. 6 Appendix Plaintiffs are primarily engaged in the grading and paving of streets. During the period of 1954 to 1960, Copp Paving Com- pany bought most of its asphalt paving materials from Industrial Asphalt and during this same period was one of its bigger accounts. TRADING AND COMMERCE Count X Asphaltic concrete paving materials are made by combining hot, crushed rock, sand, a cement-like filler and hot asphaltic oil into a homogenous mass in a mixing plant, commonly called a “hot plant”. The rock and sand are purchased from a rock plant. The oil is purchased from an oil company. Upon arrival of the rock and sand at the “hot plant’, it is dumped into a stockpile bunker according to size and type of material. The stockpiles are at ground level and the material is dumped into a hopper which conveys the material overhead to the correct stockpile. This system is known as a “stacker.” The filler is stored in a cement silo. The asphaltic oil is delivered hot in insulated trucks and deposited into heated and insulated underground oil tanks in the plant. The various compounds are subsequently mixed at approximately 375° and the hot mixed asphalt is discharged into a dump truck. The truck then delivers the asphalt to the particular job. The area of trade involved also includes the general con- tracting area; primarily, streets, roadways and parking lots, the owning, operating, leasing and renting of heavy equipment, par- ticularly used in the paving area. OFFENSES CHARGED Count XI In 1958, Norwalk Asphalt Company built a plant at Bloomfield Avenue and Imperial Highway in Santa Fe Springs. In 1960, Copp Paving Company built a hot plant one-half mile northeast Appendix 7 of Norwalk’s plant. From 1958 on, Industrial would underbid all competitors, even at a loss, putting economic pressure on plaintiff and Norwalk Asphalt Company. Industrial acquired Norwalk Asphalt in 1963 simultaneous!y with Industrial being acquired by Gulf. On or about December 1, 1963, Gulf acquired Industrial Asphalt. Subsequent to said acquisition, Defendant Gulf, through its wholly owned subsidiary, Industrial, has attempted to monopo- sale of the asphaltic concrete and because of the vast amount of re- sources of defendant, Gulf, and the availability of the liquid as- phalt to Industrial at unrealistic prices, defendant has engaged in a series of acts, practices and policies with the intent and purpose and with the object and effect of unlawfully interfering with plain- tiff's business. By those acts, practices and policies, defendant has unlawfully intended to attempt to monopolize or to create and maintain a monopoly and has monopolized the purchase, transpor- tation and sale in interstate commerce of asphaltic concrete and as a result of said intent, defendant has unlawfully and wrongfully injured and destroyed plaintiff's businesses, all of which is unlaw- ful and against public policy and is in violation of Section 2 of the Act of Congress of July 2, 1890 (15 U.S.C.2), commonly known as the Sherman Act. Count XIII Further, the effect of the Stock Acquisition alleged above in XII may be substantially to lessen competition or to tend to create a monopoly in violation of Section 7 of the Act of Congress of October 15, 1914, commonly known as the Clayton Act (38 Stat. 731 15 U.S.C. Section 18, as amended). Count XIV Defendant, Industrial, has also acquired at various times the several companies which also were in competition with plaintiffs 8 Appendix and defendant creating a violation of said Section 7 of the Clayton Act in that it substantially lessens competition or tends to create a monopoly in the following manner: Various entities that have been acquired have been eliminated as potential, sub- stantial, independent, competitive entities in the asphaltic concrete business. Actual and potential competition between Industrial and the various companies acquired has been eliminated. Industrial Asphalt's acquisition of various other “hot plants” in the form of horizontal acquisitions effectively eliminated all competition in the effective competitive areas. Beginning at least as early as December 19, 1963, and con- tinuing thereafter until the present time, the defendants named the co-conspirators engaged in an unlawful combination and con- spiracy in unreasonable restraint of the aforesaid interstate trade and commerce in the asphalt production and sales. Count XV On or about September, 1964, Union Oil Company acquired Sully Miller, Inc. Subsequent to said acquisition, defendant, Union, through its wholly owned subsidiary, Sully Miller has attempted to monopolize and has monopolized the purchase, transportation and sale of the asphaltic concrete and because of the vast amount of resources of defendant, Union, and the availability of the liquid asphalt to Sully Miller at unrealistic prices, defendant has engaged in a series of acts, practices and policies with the intent and purpose and with the object and effect of unlawfully interfering with plaintiff's business. By those acts, practices and policies, defendant has unlawfully intended to attempt to monopolize or to create and maintain a monopoly and has monopolized the purchase, transportation and sale in inter- state commerce of asphaltic concrete and as a result of said intent, defendant has unlawfully and wrongfully injured and destroyed plaintiff's businesses, all of which is unlawful and Appendix 9 against public policy and is in violation of Section 2 of the Act of Congress of July 2, 1890 (15 U.S.C. 2), commonly known as the Sherman Act. Count XVI Defendants further leased and sold in such a manner to discriminate in price between different purchasers of commodities of like, grade and quality and the effect of such discrimination is to substantially lessen competition or tends to create a monopoly. In formulating and effectuating the aforesaid combination and conspiracy and price fixing, said defendants and co-conspirators did those things which as hereinbefore alleged, they combined and conspired to do, including among other things, the following: Gulf Oil Company acquired Industrial Asphalt resulting in a vertical integration, which because of the vast financial resources of defendant, Gulf, and the availability of the raw materials at basically a give-away price. This acquisition eliminates com- petition to the detriment of plaintiff. Union Oil Company's acquisitions of Sully Miller Contracting Company resulted in a vertical integration which substantially lessened competition to the detriment of plaintiff. Sully Miller, Inc's horizontal acquisitions effectively eliminated competition in the competitive area. Defendants and each of them conspired within to combine to monopolize or attempt to monopolize the trade and commerce defined above as follows: The defendants and each of them among themselves effectively have divided the geographic areas of competition so that they would effectively not be competing against each other but rather to combine their resources to eliminate such competition. Defendant Sully Miller, on or about May 12, 1969, and continuously have engaged in tie-in practices. By said tie-in arrangement, Sully Miller would agree to sell base rock material 10 Appendix and other material substantially cheaper if the particular con. tractor would buy the asphalt from Sully Miller. Industrial Asphalt has further attempted to monopolize the area by over-extending credit to its potential customers, thereby locking in said potential customers to Industrial Asphalt. Defendant, Industrial Asphalt and defendant, Sully Miller and each of them maintain artificially high prices in those par- ticular areas where there is no competition or slight competition and sell their products at an artificially low price, at times, sub- stantially below cost, in those areas geographically where the aforesaid defendants compete with plaintiffs. That certain combination and conspiracy further consisted of a continuing agreement and understanding between defendants and each of them to raise, fix, stabilize and maintain the prices of the product and because of such conspiracy, prices were pron fixed, stabilized and maintained at non-competitive levels customers have been i hy deprived of free and open compe- Plaintiff has been substantially injured in a specific amount not yet ascertained since such determination will require dis- covery and analysis of defendants’ books and records. When these amounts have been determined, plaintiffs will seek leave of court to amend this application and to include such amount. PRAYER Wherefore, plaintiffs pray that: 1. The alleged combination and conspiracy among the defend- ants herein named be adjudged and decreed to be in unreasonable restraint of trade in violation of Section 1 of the Sherman Act. 2. That defendant has unlawfully attempted to monopolize and has monopolized the purchase, transportation, leasing and sale of asphaltic concrete products in violation of Section 2 of the Sherman Act. Appendix 11 3. By selling at different prices, with the purpose and intent of driving the competition out of business or destroying compe- tition, defendants have violated Section 2 of the Clayton Act of 1914, as amended, by the Robinson-Patman Act of 1936. 4. By inducing customers to enter into tie-in arrangements the effect of which is to substantially lessen competition, Section 3 of the Clayton Act has been violated. 5. That the defendant and all persons, firms and corporations acting on their behalf or under their direction or control, be permanently enjoined from engaging in carrying out or renewing any contracts, agreements, practices or understandings or claim- ing any prices thereunder having the purpose of effect of con- tinuing, revising or renewing the aforesaid violations of the Sherman Act, the Clayton Act and the Robinson-Patman Act or any contracts, agreements, combination or conspiracy having like or similar purpose or effect. That the acquisition of defendant, Gulf Oil Company, of Industrial Asphalt and defendant, Union Oil Company's acquisition of Sully Miller Contracting Company and the various acquisitions of Sully Miller Contracting Company and Industrial Asphalt be adjudged to be in violation of Section 7 of the Clayton Act. 6. That the defendant, Union Oil Company, be required to divest itself of Sully Miller Contracting Company and Gulf Oil Company be required to divest itself of Industrial Asphalt, Inc. 7. Judgment be entered in favor of plaintiffs against the defendants jointly and severally for the injury and damages caused plaintiffs in an amount three-fold the actual damages they have sustained with interest thereon. 8. Plaintiffs recover their cost of litigation, including rea- sonable attorney's fees. 12 Appendix 9. Plaintiffs be granted such other, further and different relief as the nature of the case may require and as may seem just and proper to the court. CUMMINS, WHITE, BREIDENBACH & ALPHSON By /s/ L. W. Crispo Lawrence W. Crispo Attorneys for Plaintiffs Appendix 13 Suite 575, Beneficial Plaza 3700 Wilshire Boulevard Los Angeles, California 90005 [ Filed December 30, 1970} Telephone: 380-4200 Attorneys for Plaintiffs United States District Court Central District of California CIVIL ACTION NO. 70-1394-DWW Copp Paving Company, Inc.; re Equipment Company, Inc.; and Ernest A . Copp, Plaintiffs, v. Gulf Oil Company; Union Oil Company of California, Industrial Asphalt, Inc.; Sully- Miller Contracting Company; and Edging- ton Oil Company, Defendants. AMENDED COMPLAINT UNDER THE ANTITRUST LAWS OF THE UNITED STATES AND UNDER THE CALI- FORNIA CARTWRIGHT ACT FOR DAMAGES AND INJUNCTIVE RELIEF JURY TRIAL DEMANDED Rule 15A of the Federal Rules of Civil Proecdure against the above-named defendants, and demaading trial by jury, complain and allege as follows: 14 Appendix FIRST CLAIM FOR RELIEF I JURISDICTION AND VENUE 1. This claim for relief is filed under Sections 4 and 16 of the Clayton Act (15 U.S.C. 4, 26) to recover damages from, and to obtain injunctive relief against, the defendants for violations of the Antitrust Laws of the United States, including 15 U.S.C., Sections 1, 2, 13, 13a, 14 and 18, as hereinafter alleged. 2. Each defendant transacts business, maintains an office, and is found within the Central District of California. The interstate trade and commerce hereinafter described is carried on, in part, within this District. Unlawful acts done pursuant to violations of Sections 1 and 2 of the Sherman Act have been performed within the Central District of California. Il PLAINTIFFS 3. Plaintiff Copp Paving Company, Inc. (hereinafter some times referred to as “Copp Paving”) is a California corporation, with its principal place of business in Artesia, California. Plaintiff Copp Equipment Company, Inc. (hereinafter someteimes referred to as “Copp Equipment”) is a California corporation, with its principal place of business in Artesia, California. Plaintiff Ernest Copp is the owner of substantially all of the stock of Copp Paving and Copp Equipment. Plaintiffs are engaged principally in the business of manufacturing and selling of asphaltic concrete and the grading and paving of streets employing asphaltic con- crete. lll DEFENDANTS AND CO-CONSPIRATORS 4. Defendant Gulf Oil Company (hereinafter sometimes re- ferred to as “Gulf’) is a Delaware corporation with its principal Appendix 15 place of business in Los Angeles, California. Gulf produces and refines crude petroleum and markets petroleum products through- out the United States, including the Central District of California and in foreign countries. Gulf owns 100% of defendant Industrial Asphalt, Inc. 5. Defendant Industrial Asphalt, Inc. (hereinafter sometimes referred to as “Industrial” is a California corporation with its principal place of business in Van Nuys, California. Industrial is primarily engaged in the construction business and operates “Hot Plants’ for the manufacture of asphaltic concrete at each “Hot Plant’ location in Orange County, Los Angeles County, Ventura County, San Luis Obispo County, San Bernardino County, Riverside County, San Diego County, and West Los Angeles area. Gulf obtained control of Industrial by acquisition of 100% of Industrial’s capital stock in 1963. 6. Defendant Union Oil Company of California (hereinafter sometimes referred to as “Union”) is a California corporation with its principal place of business in Los Angeles, California. Union produces and refines crude petroleum and markets petro- leum products throughout the United States, including the Cen- tral District of California, and in foreign countries. Union owns 100% of the capital stock of Sully Miller Contracting Company. 7. Defendant Sully Miller Contracting Company (hereinafter sometimes referred to as “Sully Miller”) is a California corpora- tion having its principal place of business in Long Beach, Cali- fornia. Sully Miller is engaged primarily in the business of operat- ing asphaltic concrete “Hot Plants’ and contracting street improve- ments. Union obtained control of defendant Sully Miller by acquiring 100% of its capital stock in 1964. 8. Defendant Edgington Oil Company (hereinafter some- times referred to as “Edgington”) is a California corporation, with its principal place of business in Long Beach, California. 16 Appen tix Edgington produces and refines crude petroleum and markets petroleum products in California, including the Central District of California, in other states, and in foreign countries. 9. Various other firms, corporations and individuals presently unknown to plaintiffs participated as co-conspirators in the viola- tions of law alleged herein and performed acts and made state- ments in furtherance thereof. Plaintiffs will seek leave of Court to amend this complaint to name such firms, corporations and individuals when their identities become known to plaintiffs. IV NATURE OF TRADE AND COMMERCE 10. Hot asphalt oil is one of the by-products obtained from the refining of domestic and imported crude petroleum. One of the substantial uses of hot asphalt oil is in connection with the construction, maintenance, surfacing, resurfacing and repairing of roads and highways. Asphaltic concrete paving materials are made by combining hot, crushed rock, sand, a cement-like filler and hot asphalt oil into a homogeneous mass in a mixing plant, commonly called a “hot plant”. The rock and sand are purchased from a rock plant. The hot asphalt oil is purchased from an oil company. Upon arrival of the rock and sand at the “hot plant’, it is dumped into a stockpile bunker according to size and type of material. The stockpiles are at ground level and the material is dumped into a hopper which conveys the material overhead to the correct stockpile. This system is known as a “stacker”. The hiler 1s stored in a cement silo. The hot asphalt oil is delivered hot in insulated trucks and deposited into heated and insulated underground oil tanks in the plant. The various compounds are subsequently mixed at approximately 375° and the hot asphaltic concrete is discharged into a dump truck. The truck then delivers Appendix 17 the asphaltic concrete to the particular job. Hot asphalt oil customarily represents approximately 25% of the cost of all of the materials that are combined in the manufacture of asphaltic concrete. Hot asphalt oil is also used to repair roads and highways in accordance with other techniques. 11. The total annual production and importation of hot asphalt oil into the United States ordinarily amounts to more than 6,000,000 tons, of which ninety percent (90%) is recovered from the refining of domestic and imported crude petroleum. 12. Over seventy-five percent (75%) of the total production of hot asphalt oil is used in the construction and maintenance of roads and highways. Approximately 14,000,000 square yards of asphalt pavement are constructed annually in the United States. 13. The total annual production of hot asphalt oil in Calli- fornia exceeds 1,000,000 tons per year, of which at least seventy- five percent (75%) is used in the construction and maintenance of roads and highways within the State. 14. Defendants Gulf, Union and Edgington operate refineries within the State of California in which substantial quantities of hot asphalt oil are manufactured from domestic and imported crude petroleum. Hot asphalt oil is ship»ed from these refineries within the State of California in interstate and foreign commerce to other states of the United States and to interstate and foreign customers. Plaintiffs and defendants Industrial and Sully Miller purchase hot asphalt oil produced from imported and domestic crude petroleum and manufacture asphaltic concrete, sometimes referred to as “asphalt”, therefrom as hereinabove set forth. Defendants Gulf, Union and Edgington sell to end users and contractors, including plaintiffs, substantial quantities of hot as- phalt oil to be used as hot asphalt or as asphaltic concrete for constructing, maintaining, surfacing, resurfacing and repairing roads and highways, including Federal interstate system highways 18 Appendix and highways directly connected to interstate highways. Thus, the business of supplying hot asphalt oil or asphaltic concrete for road purposes is in and directly affects interstate commerce. 15. Plaintiffs purchase hot asphalt oil and manufacture as- phaltic concrete therefrom at their hot plant in Santa Fe Springs, California. Plaintiffs thereafter either sell asphaltic concrete to third parties or use that asphaltic concrete in carrying on their business in the installation, maintenance and repair of roads and highways. Plaintiffs are in direct competition with defendants Industrial and Sully Miller in the sale of asphaltic concrete and the installation, maintenance and repair of roads and highways. 16. The movement in interstate commerce of hot asphalt oil manufactured from domestic and imported crude petroleum used in the business of supplying hot asphalt oil or asphaltic concrete for interstate and local highways and roads is in and directly affects interstate commerce. Vv OFFENSES CHARGED 17. Beginning at a date unknown to plaintiffs and continuing at least to the date of the filing of this complaint, defendants, and each of them, together with the co-conspirators, have engaged in a continuous agreement, combination, conspiracy and concert of action in the State of California, including the County of Los Angeles, and in other western states of the United States, in unreasonable restraint of interstate commerce and trade, in the sale of hot asphalt oil, asphaltic concrete, and in the business of grading and paving of roads and highways and the defendants, and each of them, have purposely and with deliberate and specific intent, attempted to monopolize, conspired with each other and the co-conspirators, to monopolize and did monopolize, the aforesaid trade and commerce, all in violation of Sections 1 and 2 of the Sherman Act. Appendix 19 18. One of the purposes and objectives of the aforesaid combination and conspiracy to restrain and the combination and conspiracy to monopolize, attempt to monopolize and monopoliza- tion has been the destruction and elimination of plaintiffs as a viable entity so that: (a) Plaintiffs would be eliminated as a competitor of Industrial and Sully Miller: (b) Plaintiffs would be penalized for remaining as an inde- pendent competitor in the manufacture and sale of asphaltic concrete, and in the business of grading and paving highways and roads. 19. In furtherance of the above-described violations of the Antitrust Laws, the defendants, and each of them, together with the co-conspirators, agreed to and in fact engaged, among other things, in the following acts and practices: (a) Fixed, stabilized and maintained the prices at which hot asphalt oil would be sold to end users, including governmental agencies and to hot plant owners, including plaintiffs; (b) Allocated and exchanged between each other supplies of crude petroleum and petroleum products, including, but not limited to supplies of hot asphalt; (c) Fixed, stabilized and maintained the prices at which as- phaltic concrete would be sold to end users, including govern- mental agencies, and to contractors; (d) Eliminated competition and obtained and exercised monop- oly power in the operation of hot plants and in the sale of asphaltic concrete by acquiring ownership and control of a substantial number of hot plants, including more than sixty percent (60%) of all of the hot oil plants operated in Southern California and in Los Angeles and Orange Counties; (e) Allocated and divided, on a geographical basis and upon a customer basis, the outlets to whom hot asphalt oil and as- phaltic concrete would be sold; 20 Appendix (f) Sold asphaltic concrete at unreasonably low prices in the areas in which they competed with plaintiffs and subsidized said unreasonably low prices by artificially maintaining prices in other areas in which plaintiffs did not compete; (g) Sold and installed asphaltic concrete at or below cost in areas where plaintiffs competed with defendants and subsidized said sales by artificially maintaining higher prices in areas where plaintiffs did not compete; (h) Threatened actual and potential customers of plaintiffs that unless they refrained from purchasing asphaltic concrete from plaintiffs in plaintiffs’ area of competition, that said customers would be unable to obtain supplies of asphaltic concrete at a competitive price in other areas where said customers had no other source of supply other than defendants; (i) Extended unreasonably advantageous credit terms to cus- tomers in order to preclude said customers from purchasing asphaltic concrete from any other suppliers, including plaintiffs; (j) Required customers who were indebted to defendants to purchase all of their asphaltic concrete from said defendants upon threat of immediately enforcing the collection of outstanding debt, thereby precluding said customers from purchasing asphaltic concrete from other suppliers, including plaintiffs; (k) Tied the sale of other commodities, including base rock material, and tied the availability of credit to the sale of asphaltic concrete so as to induce and require purchasers of asphaltic con- crete to purchase their supply thereof from Sully Miller and not to purchase their supply from third parties, including plaintiffs; (|) Sold hot asphalt oil and asphaltic concrete in such a man- ner as to discriminate in price between purchasers of such com- modities of like grade and quality where the effect of such dis- crimination was to substantially lessen competition and tended to create a monopoly; Appendix 21 (m) Gulf acquired all of the capital stock of Industrial, as hereinabove alleged, and the effect thereof may be substantially to lessen competition and to tend to create a monopoly, in viola- tion of Section 7 of the Act of Congress of October 15, 1914, commonly known as the Clayton Act, 15 U.S.C., Section 18, as amended; and (n) Union acquired all of the capital stock of Sully Miller, as hereinabove alleged, and the effect of that acquisition may be substantially to lessen competition, and to tend to create a mon- opoly, in violation of Section 7 of the Act of Congress of October 15, 1914, commonly known as the Clayton Act, 15 U.S.C., Section 18, as amended. VI INJURY TO PLAINTIFFS 20. By reason of the aforesaid antitrust violations, plaintiffs have suffered grave damage in loss of profits, goodwill and the value of their company as a going concern. The exact amount of damage has not yet been fully ascertained, but when fully de- termined, plaintiffs will seek leave to assert the amount of damages herein. SECOND CLAIM FOR RELIEF Vil JURISDICTION AND VENUE 21. This claim for relief arises under California Business and Professions Code 16750 to recover damages from, and to obtain injunctive relief against, the defendants for violations of the California Business and Professions Code Section 16720 (some- times referred to as the “Cartwright Act”). This claim is sub- stantially and directly re!ated to plaintiffs’ First Claim for Relief, and by reason thereof, this Court has pendant jurisdiction of this claim. 22 Appendix 22. Plaintiffs hereby incorporate by reference Paragraphs 2, 3, 4, 5, 6, 7, 8, 9, 10, 13, 14 (the first sentence only), and 15 of Plaintiffs’ First Claim for Relief as though fully set forth at length herein. Vill OFFENSES CHARGED 23. Beginning at a date unknown to plaintiffs and continuing at least to the date of the filing of this complaint, defendants, and each of them, together with the co-conspirators, have engaged in a combination of capital and acts in the State of California, including Los Angeles County, in order to carry out the following purposes, among others: (a) To create and carry out restrictions in trade and commerce; and (b) To prevent and eliminate competition in the sale of hot asphalt oil and asphaltic concrete, in violation of California Busi- ness and Professions Code Section 16720 (also known as the Cartwright Act). 24. Plaintiffs hereby incorporate by reference Paragraphs 18(a) and (b) and 19(a) through (m) of Plaintiffs’ First Claim for Relief as though fully set forth at length herein. IX INJURY TO PLAINTIFFS 25. By reason of the aforesaid violations of the Cartwright Act, plaintiffs have suffered grave damage in loss of profits, good will, and the value of their Company as a going concern. The exact amount of damage has not yet been fully ascertained. When fully determined, plaintiffs will seek to assert the amount of dam- ages herein. Appendix 23 PRAYER Wherefore, plaintiffs pray that: (1) The alleged combination and conspiracy among the de- fendants herein named be adjudged and decreed as a violation of Section 1 of the Sherman Act; (2) That the attempts to monopolize, conspiracy to monopolize and monopolization hereinabove alleged be declared to be a viola- tion of Section 2 of the Sherman Act; (3) That the sales at discriminatory prices hereinabove alleged be declared to be in violation of Section 2 of the Clayton Act of 1914 as amended by the Robinson-Patman Act of 1936; (4) That the tie-in arrangements hereinabove alleged be de- clared to be in violation of Section 3 of the Clayton Act; (5) That the acquisition by defendant Gulf of the capital stock of Industrial, and the acquisition by defendant Union of the capital stock of defendant Sully Miller, and the various acquisitions of hot plants, by Industrial and Sully Miller, be adjudged to be in violation of Section 7 of the Clayton Act; (6) That defendant Union be required to divest itself of the capital stock of Sully Miller and that defendant Gulf be required to divest itself of the capital stock of Industrial ; (7) That the combination and conspiracy hereinabove alleged be declared to by in violation Section 16720 of the California Busi- ness and Professions Code and the Cartwright Act; (8) That defendants, and all persons, firms and corporations acting on their behalf or under their direction or control, be per- manently enjoined from engaging in carrying out or renewing any contracts, agreements, practices or understandings hereinabove alleged; (9) That judgment be entered in favor of plaintiffs and against the defendants, jointly and severally, for the injury and damages caused plaintiffs in an amount equal to threefold the actual dam- ages sustained by plaintiffs ; 24 Appendix (10) That plaintiffs recover their costs of litigation, including reasonable attorneys’ fees; and (11) That plaintiffs be accorded such other, further and dif- ferent relief as the nature of the case may require and as may seem just and proper to the Court. CORINBLIT AND SHAPERO By: MARTIN M. SHAPERO Attorneys for Plaintiffs PLAINTIFFS DEMAND A JURY TRIAL Appendix 25 United States District Court for the Central District of California [ Title of case omitted in printing} [ Filed February 26, 1971} ANSWER OF DEFENDANT UNION OIL COMPANY OF CALIFORNIA TO AMENDED COMPLAINT Union Oil Company of California, hereafter “Union,” answers plaintiffs’ amended complaint as follows: ANSWER TO FIRST CLAIM FOR RELIEF 1. Union denies the averments of Paragraph 1 of the amended complaint, except that it admits that plaintiffs’ first claim for relief purports to be filed under the provisions of 15 U.S.C. § 26. 2. Union is without knowledge or information sufficient to form a belief as to the truth of the averments of Paragraph 2 of the amended complaint, except that it admits that Union, Sully- Miller Contracting Company, Industrial Asphalt, Inc., and Edging- ton Oil Company each maintains an office, transacts business or is found in the Central District of California, and denies that Union has done or performed any acts in violation of or pursuant to any violations of Sections 1 and 2 of the Sherman Act in the Central District of California or in any other place. 3. Union is without knowledge or information sufficient to form a belief as to the truth of the averments of Paragraphs 3, 4, and 5 of the amended complaint except that it admits that Industrial Asphalt, Inc. operates “hot plants” for the manufacture of asphaltic concrete. 4. Union admits the averments of Paragraph 6 of the amended complaint, except that it denies that it produces and refines crude petroleum and markets petroleum products throughout the United States, and denies that it refines crude petroleum and markets petroleum products in foreign countries. 26 Appendix 5. Union admits the averments of Paragraph 7 of the amended complaint, except that it denies that it obtained control of Sully- Miller Contracting Company in 1964 or at any other time. 6. Union is without knowledge or information sufficient to form a belief as to the truth of the averments of Paragraph 8 of the amended complaint, except that it admits that Edgington Oil Company is a California corporation with its principal place of business in Long Beach, California, and that Edgington Oil Com- pany refines crude petroleum and markets petroleum products in California. 7. Union denies the averments of Paragraph 9 of the amended complaint. 8. Union is without knowledge or information sufficient to form a belief as to the truth of the averments of Paragraph 10 of the amended complaint, except that it admits that various products, sometimes referred to collectively as “hot asphalt oil” are obtained from the refining of crude petroleum, in some cases domestic and in other cases foreign, that “hot asphalt oil” is used in connection with the construction, maintenance, surfacing, re- surfacing, and repairing of roads and highways, and that asphaltic concrete paving materials are made by combining “hot asphalt oil” with various other materials and by various methods in a mixing plant, sometimes called a “hot plant.” 9. Union is without knowledge or information sufficient to form a belief as to the truth of the averments of Paragraphs 11, 12, and 13 of the amended complaint, except that it admits that the total annual production and importation of “hot asphalt oil” into the United States ordinarily amounts to more than six million tons, that approximately 14 million or more square yards of as- phalt pavement are ordinarily constructed annually in the United States, and that the total annual production of “hot asphalt oil” in California ordinarily exceeds one million tons per year. Appendix 27 10. Union is without knowledge or information sufficient to form a belief as to the truth of the averments of Paragraph 14 of the amended complaint, except that it admits that it operates re- fineries within the State of California at which “hot asphalt oil” is manufactured from crude petroleum, in some cases domestic and in other cases foreign, that Edington operates a refinery in the State of California at which “hot asphalt oil” is manufactured from crude petroleum, that Union ships some of the “hot asphalt oil” so manufactured by it to other states of the United States and sells “hot asphalt oil” to customers located in other states, that Industrial and Sully-Miller purchase “hot asphalt oil” pro- duced from crude petroleum, in some cases domestic and in other cases foreign, and manufacture asphaltic concrete therefrom, that Union and Edington sell “hot asphalt oil” to end users and con- tractors, and that such “hot asphalt oil” is in some cases used as “hot asphalt” and is in other cases used as one of the constituents of asphaltic concrete for constructing, maintaining, surfacing, re- surfacing, and repairing of roads and highways, including federal interstate system highways and highways directly connected to interstate highways, and denies that it sells, or during at least the four years last past has sold “hot asphalt oil” to plaintiffs or to any of them, and denies that the business of supplying “hot asphalt oil” or asphaltic concrete for road purposes is in and directly affects interstate commerce. 11. Union is without knowledge or information sufficient to form a belief as to the truth of the averments of Paragraph 15 of the amended complaint. 12. Union denies the averments of Paragraphs 16, 17, 18, 19, and 20 of the amended complaint, except that it admits that the exact amount by which plaintiffs have allegedly been damaged has not been ascertained or determined, and alleges that said sup- posed amount cannot be ascertained or determined because plain- tiffs have not been injured at all. 28 Appendix SECOND DEFENSE TO FIRST CLAIM FOR RELIEF 13. Plaintiffs’ first claim for relief fails to state a cause of action against Union upon which relief may be granted. THIRD DEFENSE TO FIRST CLAIM FOR RELIEF i4. Such of plaintiffs’ claims for relief against Union as ac- crued more than four years prior to the filing of the complaint are barred by the statute of limitations, the Act of July 7, 1955, C. 283, § 1, 69 Stat. 283, 15 U.S.C. § 156. FOURTH DEFENSE TO FIRST CLAIM FOR RELIEF 15. Any differentials in the prices at which Union sold “hot asphalt oil” of like grade and quality to persons of the same class of trade made only due allowance for differences in the cost of manufacture, sale, furnishing or delivery resulting from the dif- ferent methods or quantities in which the “hot asphalt oil” was sold, delivered or furnished to purchasers. FIFTH DEFENSE TO FIRST CLAIM FOR RELIEF 16. Any changes in the prices at which Union sold “hot as- phalt oil” of like grade and quality to persons of the same class of trade were in response to changing conditions affecting the market for or the marketability of the “hot asphalt oil” conterned. SIXTH DEFENSE TO FIRST CLAIM FOR RELIEF 17. Any differentials in the prices at which Union sold “hot asphalt oil” of like grade and quality to persons of the same class of trade were made in good faith to meet the equally low price of a competitor or competitors of Union or the services or facilities furnished by a competitor or competitors of Union. Appendix 29 ANSWER TO SECOND CLAIM FOR RELIEF 18. Union denies the averments of Paragraph 21 of the amended complaint, except that it admits that plaintiffs’ second claim for relief purports to arise under Section 16750 of the California Business and Professions Code. 19. Answering Paragraph 22 of the amended complaint, Union incorporates by this reference Paragraphs 2, 3, 4, 5, 6, 7, 8, 9, 10, and 11 of Answer to First Claim for Relief as though the same were fully set forth at length herein. 20. Union denies the averments of Paragraph 23, 24, and 25 of the amended complaint, except that it admits that the exact amount by which plaintiffs have allegedly been damaged has not been ascertained or determined, and alleges that said supposed amount cannot be ascertained or determined because plaintiffs have not been injured at all. SECOND DEFENSE TO SECOND CLAIM FOR RELIEF 21. Plaintiffs’ second claim for relief fails to state a cause of action against Union upon which relief may be granted. THIRD DEFENSE TO SECOND CLAIM FOR RELIEF 22. Such of plaintiffs’ claims for relief against Union as accrued more than four years prior to the filing of the complaint are barred by the statute of limitations, Stats. 1963 c. 792, California Business and Professions Code. § 16750.1. FOURTH DEFENSE TO SECOND CLAIM FOR RELIEF 23. This Court has no jurisdiction over the subject matter of the claims purportedly asserted in plaintiffs’ second claim for relief. 30 Appendix Wherefore, defendant Union Oil Company of California prays that the amended complaint be dismissed and that it have and recover its costs. Dated: February 25, 1971. Douc.ias C. Grecc E. A. McFAppENn Moses Lasky RICHARD Haas GeorGe A. CUMMING, JR. BROBECK, PHLEGER & HARRISON By /s/ RicHarp Haas Richard Haas Attorneys for Defendant Union Oil Company of California [ Certificate of Service omitted in printing} Appendix 31 United States District Court for the Central District of California [Title of case omitted in printing] [Filed February 26, 1971] ANSWER OF DEFENDANT SULLY-MILLER CONTRACTING COMPANY TO AMENDED COMPLAINT Sully-Miller Contracting Company, hereafter ‘‘Sully-Miller,” answers plaintiffs’ amended complaint as follows: ANSWER TO FIRST CLAIM FOR RELIEF 1. Sully-Miller denies the averments of Paragraph 1 of the amended complaint, except that it admits that plaintiffs’ first claim for relief purports to be filed under the provisions of 15 U.S.C. § 26. 2. Sully-Miller is without knowledge or information sufficient to form a belief as to the truth of the averments of Paragraph 2 of the amended complaint, except that it admits that Union Oil Company of California, Sully-Miller Contracting Company, Indus- trial Asphalt, Inc., and Edgington Oil Company each maintains an office, transacts business or is found in the Central District of California, and denies that it has done or performed any acts in violation of or pursuant to any violations of Sections 1 and 2 of the Sherman Act in the Central District of California or in any other place. 3. Sully-Miller is without knowledge or information sufficient to form a belief as to the truth of the averments of Paragraphs 3, 4, and 5 of the amended complaint, except that it admits that Copp Paving Company, Inc. has its principal place of business in Artesia, California, and is engaged in the business of manufactur- ing and selling asphaltic concrete and in the business of grading 32 Appendix and paving streets with asphaltic concrete, and that Industrial Asphalt, Inc. operates “hot plants’’ in various places for the manufacture of asphaltic concrete. 4. Sully-Miller is without knowledge or information sufficient to form a belief as to the truth of the averments of Paragraph 6 of the amended complaint, except that it admits that Union Oil Company of California is a California corporation with its prin- cipal place of business in Los Angeles, California, that Union produces and refines crude petroleum and markets petroleum products in, among other places, the Central District of Cali- fornia. 5. Sully-Miller admits the averments of Paragraph 7 of the amended complaint, except that it denies that Union obtained control of Sully-Miller in 1964 or at any other time. 6. Sully-Miller is without knowledge or information sufficient to form a belief as to the truth of the averments of Paragraph 8 of the amended complaint, except that it admits that Edgington Oil Company has its principal place of business in Long Beach, California, and that Edgington Oil Company refines crude petro- leum and markets petroleum products in California. 7. Sully-Miller denies the averments of Paragraph 9 of the amended complaint. 8. Sully-Miller is without knowledge or information sufficient to form a belief as to the truth of the averments of Paragraph 10 of the amended complaint, except that it admits that various products, sometimes referred to collectively as “hot asphalt oil,” are obtained from the refining of crude petroleum, in some cases domestic and in other cases foreign, that “hot asphalt oil” is used in connection with the construction, maintenance, surfacing, re- surfacing and repairing of roads and highways, and that asphaltic concrete paving materials are made by combining “hot asphalt oil” with various other materials and by various methods in a mixing plant, sometimes called a “hot plant.” Appendix 33 9. Sully-Miller is without knowledge or information sufficient to form a belief as to the truth of the averments of Paragraphs 11, 12, and 13 of the amended complaint, except that it admits that approximately 14 million or more square yards of asphalt pave- ment are ordinarily constructed annually in the United States. 10. Sully-Miller is without knowledge or information sufficient to form a belief as to the truth of the averments of Paragraph 14 of the amended complaint, except that it admits that Union and Edgington operate refineries in the State of California at which “hot asphalt oil” is manufactured, that Copp Paving Company, Inc., Industrial, and Sully-Miller purchase “hot asphalt oil” and manufacture asphaltic concrete therefrom, that Union and Edging- ton sell “hot asphalt oil” to end users and contractors, and that such “hot asphalt oil” in some cases is used as “hot asphalt,” and in other cases is used as one of the constituents of asphaltic concrete for constructing, maintaining, surfacing, resurfacing, and repairing roads and highways, including Federal interstate sys- tem highways and highways directly connected to interstate highways, and denies that the business of supplying “hot asphalt oil” or asphaltic concrete is in and directly affects interstate commerce. 11. Sully-Miller is without knowledge or information sufficient to form a belief as to the truth of the averments of Paragraph 15 of the amended complaint, except that it admits that Copp Paving Company, Inc. purchases “hot asphalt oil” and manufactures as- phaltic concrete therefrom at a “hot plant” located in Santa Fe Springs, California, that Copp Paving Company, Inc. sells as- phaltic concrete to third parties or uses asphaltic concrete in the business of installing, maintaining and repairing of roads and highways, and that in some instances Copp Paving Company, Inc. competes with Industrial and Sully-Miller in the business of selling asphaltic concrete and in the business of installing, main taining and repairing roads and highways. 34 Appendix 12. Sully-Miller denies the averments of Paragraphs 16, 17, 18, 19, and 20 of the amended complaint, except that it aumits that the exact amount by which plaintiffs have allegedly been damaged has not been ascertained or determined, and alleges that said supposed amount cannot be ascertained or determined be- cause plaintiffs have not been injured at all. SECOND DEFENSE TO FIRST CLAIM FOR RELIEF 13. Plaintiffs’ first claim for relief fails to state a cause of action against Sully-Miller upon which relief may be granted. THIRD DEFENSE TO FIRST CLAIM FOR RELIEF 14. Such of plaintiffs’ claims for relief against Sully-Miller as accrued more than four years prior to the filing of the complaint are barred by the statute of limitations, the Act of July 7, 1955, C. 283, $1, 69 Stat. 283, 15 U.S.C. $156. FOURTH DEFENSE TO FIRST CLAIM FOR RELIEF 15. Any differentials in the prices at which Sully-Miller sold asphaltic concrete of like grade and quality to persons of the same class of trade made only due allowances for differences in the cost of manufacture, sale, furnishing, or delivery resulting from the different methods or quantities in which the asphaltic concrete was sold, delivered or furnished to purchasers. FIFTH DEFENSE TO FIRST CLAIM FOR RELIEF 16. Any changes in the prices at which Sully-Miller sold as- phaltic concrete of like grade and quality to persons of the same class of trade were in response to changing conditions affecting the market for or marketability of the asphaltic concrete concerned. SIXTH DEFENSE TO FIRST CLAIM FOR RELIEF 17. Any differentials in the prices at which Sully-Miller sold asphaltic concrete of like grade and quality to persons of the Appendix 35 same class of trade were made in good faith to meet the equally low price of a competitor or competitors of Sully-Miller or the services or facilities furnished by a competitor or competitors of Sully-Miller. ANSWER TO SECOND CLAIM FOR RELIEF 18. Sully-Miller denies the averments of Paragraph 21 of the amended complaint, except that it admits that plaintiffs’ second claim purports to arise under Section 16750 of the California 19. Answering Paragraph 22 of the amended complaint, Sully-Miller incorporates by this reference Paragraphs 2, 3, 4, 5, 6, 7, 8, 9, 10, and 11 of Answer to First Claim for Relief as though the same were fully set forth at length herein. 20. Sully-Miller denies the averments of Paragraphs 23, 24, and 25 of the amended complaint, except that it admits that the exact amount by which plaintiffs have allegedly been damaged has not been ascertained or determined, and alleges that said supposed amount cannot be ascertained or determined because plaintiffs have not been injured at all. SECOND DEFENSE TO SECOND CLAIM FOR RELIEF 21. Plaintiffs’ second claim for relief fails to state a cause of action against Sully-Miller upon which relief may be granted. THIRD DEFENSE TO SECOND CLAIM FOR RELIEF 22. Such of plaintiffs’ claims for relief against Sully-Miller as accrued more than four years prior to the filing of the complaint are barred by the statute of limitations, Stats. 1963 c. 792, Cali- fornia Business and Professions Code §16750.1. FOURTH DEFENSE TO SECOND CLAIM FOR RELIEF 23. This Court has no jurisdiction over the subject matter of the claims purportedly asserted in plaintiffs’ second claim for relief. 36 Append:x WHEREFORE, defendant Sully-Miller Contracting Company prays that the amended complaint be dismissed and that it have and recover its costs. Dated: February 25, 1971. Attorneys for Defendant Sully-Maller Contracting Company [Certificate of Service omitted in printing} Appendix 37 Gulf Oi Corporation and Industrial Asphalt, Inc. [Filed April 23, 1971} United Siates District Court Northern District of California In re Consolidated Pretrial Proceedings in / Master File Western Liquid Asphalt Cases No. 50173-RES This document relates to: Paving Company, Inc.; Equipment Plaintiffs, ve Civil Action Gulf Oil Company; Union Oil Company of No. 70-1394- California; Industrial Asphalt, Inc.; Sully- | RES Miller Contracting Company; and Edging- ton Oil Company, Defendants. AMENDED ANSWER OF DEFENDANTS GULF OIL CORPORATION AND INDUSTRIAL ASPHALT, INC. Defendants GULF OIL CORPORATION (‘Gulf’), errone- ously named herein as “Gulf Oil Company”, and INDUSTRIAL ASPHALT, INC. (“Industrial”) answer plaintiffs’ Amended Complaint, as follows: 38 Appendix FIRST DEFENSE 1. Admit that the First Claim For Relief in the Amended Complaint purports to be filed under the statutes referfed to in Paragraph 1; deny each and every allegation of Paragraph | not herein expressly admitted. 2. Admit that answering defendants, Union Oil Company of California, Sully-Miller Contracting Company and Edgington Oil Company, transact business, maintain offices, and are found within the Central District of California; deny all of the allega- tions of Paragraph 2 not herein admitted insofar as they relate to these answering defendants and state they are without knowl- edge or information sufficient to form a belief as to the truth of the allegations insofar as they relate to any other defendants. 3. State that they are without knowledge or information sufh- cient to form a belief as to the truth of the allegations of Para- graph 3. 4. Admit the allegations of Paragraph 4, except allege that defendant Gulf Oil Corporation was incorporated under the laws of the State of Pennsylvania and has a place of business in Los Angeles, California. 5. Admit the allegations of Paragraph 5, except allege that defendant Industrial Asphalt, Inc. was incorporated urder the laws of the State of Delaware, and that it is engaged ptimarily in the business of manufacturing and selling asphaltic Concrete at “Hot Plants” which it operates and which are located n Orange County, Los Angeles County, Ventura County, Sar Luis Obispo County, San Bernardino County, Riverside County and San Diego County; further admit that Gulf Oil Corpors0n acquired all of the capital stock of Industrial Asphalt, In. in 1963; deny each and every allegation of Paragraph 5 ®t herein expressly ad- mitted. 6. State that they are without knowledge or information suff- cient to form a belief as to »¢ truth of the allegations of Para- graph 6. Appendix 39 7. State that they are without knowledge or information sufhi- cient to form a belief as to the truth of the allegations of Para- graph 7. 8. State that they are without knowledge or information sufh- cient to form a belief as to the truth of the allegations of Para- graph 8. 9. State that they are without knowledge or information sufh- cient to form a belief as to the truth of the allegations of Para- graph 9 insofar as they relate to other corporations, firms and individuals not named as defendants in plaintiffs’ Amended Complaint, or defendants other than these answering defendants ; deny that answering defendants participated as co-conspirators in the violations of law alleged in the Amended Complaint. 10. Admit the allegations of Paragraph 10 except the allega- tions of the sentence of Paragraph 10 appearing at lines 25 to 27, inclusive, Page 4, and state they are without knowledge or information sufficient to form a belief as to the truth of the allegations of the sentence of Paragraph 10 appearing at lines 25 to 27, inclusive, Page 4. 11. State that they are without knowledge or information sufficient to form a belief as to the truth of the allegations of Paragraph 11. 12. State that they are without knowledge or information sufficient to form a belief as to the truth of the allegations of Paragraph 12. 13. State that they are without knowledge or information sufficient to form a belief as to the truth of the allegations of Paragraph 13. 14. Admit that Gulf Oil Corporation owns and operates a petroleum refinery within the State of California at which “hot asphalt oil” is manufactured from domestic and imported crude petroleum; further admit that Industrial Asphalt, Inc. purchases 40 Appendix “hot asphalt oil” produced from imported and domestic crude petroleum which it uses in the manufacture of asphaltic concrete; allege that all of the “hot asphaltic oil” so manufactured by Gulf Oil Corporation is sold to Industrial Asphalt, Inc.; said sale being made within the State of California; deny the allegations of Paragraph 14 not herein admitted insofar as they relate to these answering defendants and state they are without knowledge or information sufficient to form a belief as to the truth of the allega- tions as to any other defendants. 15. State that they are without knowledge or information sufficient to form a belief as to the truth of the allegations of Paragraph 15. 16. Deny the allegations of Paragraph 16. 17. Deny the allegations of Paragraph 17. 18. Deny the allegations of Paragraph 18. 19. Admit that Gulf Oil Corporation acquired all of the capital stock of Industrial Asphalt, Inc.; deny the allegations of Paragraph 19 not herein admitted insofar as they relate to these answering defendants and state they are without knowledge or information sufficient to form a belief as to the truth of the allega- tions as to any other defendants. 20. Deny the allegations of Paragraph 20 and further deny that plaintiffs have been injured or damaged financially or other- wise or at all as a result of any act or omission of these answer- ing defendants. SECOND DEFENSE 21. Admit that the Second Claim For Relief in the Amended Complaint purports to be filed under the statutes referred to in Paragraph 21; deny each and every allegation of Paragraph 21 not herein expressly admitted. 22. Answering Paragraph 22 these answering defendants hereby incorporate by reference Paragraphs 2, 3, 4, 5, 6, 7, 8, Appendix 41 9, 10, 13, 14 and 15 of this Answer as though fully set forth at length herein. 23. Deny the allegations of Paragraph 23. 24. Answering Paragraph 24 these answering defendants hereby incorporate by reference Paragraphs 18 and 19 of this Answer as though fully set forth at length herein. 25. Deny the allegations of Paragraph 25 and further deny that plaintiffs have been injured or damaged financially or other- wise or at all as a result of any act or omission of these answer- ing defendants. THIRD DEFENSE The First Claim For Relief in the Amended Complaint fails to state a claim against these answering defendants upon which relief can be granted. FOURTH DEFENSE The Second Claim For Relief in the Amended Complaint fails to state a claim against these answering defendants upon which relief can be granted. FIFTH DEFENSE Plaintiffs’ alleged claims for relief are barred in whole or in part by applicable federal and state statute of limitations. SIXTH DEFENSE None of the sales mentioned in the First Claim For Relief in the Amended Complaint were made in interstate commerce, nor did they substantially affect interstate commerce. SEVENTH DEFENSE If there have been any sales of “hot asphalt oil” and asphaltic concrete by these answering defendants in such a manner as to 42 Appendix discriminate in price, as alleged in the Amended Complaint, such discriminations or differentials were such as to make only due allowance for differences in the cost of manufacture, sale, or delivery resulting from the differing methods or quantities in which such commodities were sold or delivered to purchasers. EIGHTH DEFENSE If there have been any sales of “hot asphalt oil” and asphaltic concrete by these answering defendants in such a manner as to discriminate in price, as alleged in the Amended Compiaint, such discriminations or changes in price were in response to changing conditions affecting the market or the marketability of the com- modities concerned. NINTH DEFENSE If there have been any sales of “hot asphalt oil” and asphaltic concrete by these answering defendants in such a manner as to discriminate in price, as alleged in the Amended Complaint, such discriminations or differentials were made in good faith to meet an equally low price of a competitor, or the services or facilities furnished by a competitor. Wherefore, defendants pray that plaintiffs take nothing by their Amended Complaint, for their costs and expenses of suit Appendix 43 herein, and for such other and further relief as the Court may deem proper. Dated: March 23, 1971. R. W. Curtis R. W. Futter F. E. LaYMon D. R. ARNETT By /s/ FRED E. LAYMON F. E. Laymon Attorneys for Defendants Gulf Oil Corporation and Industrial Asphalt, Inc. [Certificate of Service omitted in printing} 44 Appendix United States District Court for The Northern District of California [ Title of case omitted in printing} [Filed October 29, 1971] AFFIDAVIT OF ERNEST A. COPP State of California County of Los Angeles—ss. Ernest A. Copp, being first duly sworn, states: l. The affiant is now and was at all times referred to herein the President and the controlling manager of Copp Paving Com- pany, Inc., and Copp Equipment Company, Inc., and has spent the last 17 years of his life actively engaged in the paving and contracting business in the Los Angeles Basin. 2. This affidavit is directed to the affidavits of R. F. Moly- neux and W. Duane Rash which have been submitted by the defendant and which in the opinion of the affiant contain material misstatement of facts as follows: A. Referring to Paragraph 7 of the affidavit su’ mitted by R. F. Molyneux wherein it states “in recent years, more than 10 firms have operated more than 45 hot plants in that portion of Los Angeles Basin served by Sully-Miller’s hot plants.” As further set forth in the affidavit of R. F. Molyneux at Paragraph 9 “the effective area of operation of most hot plants in the Los Angeles Basin is 5 to 15 miles from the plant. The result is that the firms engaged in the production and sale of asphaltic concrete vary from one town to the next, depending upon the location of their hot plant and the pit from which it is supplied with aggregate, and each hot plant in the Los Angeles Basin is thus little more than a neighborhood outlet for asphaltic concrete.” B. This affiant, Ernest A. Copp, states in the south por- tion of Los Angeles County during the recent years referred Appendix 45 to by affiant Molyneux there were formerly 6 contractor- producers that owned and operated one to three hot plants. Of the total of these 6 in this southern area, three of said companies were acquired by Sully-Miller and Sully-Miller in turn was acquired by defendant Union Oil. Of the remaining companies in the southern area of the one to three hot plant category, two were acquired by the defendant Industrial Asphalt, which in turn is owned by the defendant Gulf Oil. This leaves the plaintiff Copp as the only independent pro- ducing contractor in the southern area owning one to three plants. 3. Referring to the Rash affidavit, Paragraph 3 thereof, wherein it states that Sully-Miller has operated a total of eleven hot plants during all or a portion of the period referred to in plaintiff's interrogatories, this affiant states as follows: Within the southern Los Angeles basin, there are approximately thirty hot plants. It is possible to enlarge the area of definition to include some forty-five hot plants, but this affiant believes it is more realistic to define the area as confined to the south Los hot plants in the area, Sully-Miller owns twelve hot plants and Industrial Asphalt owns eleven, which mathematically computes out as follows: That defendant Sully-Miller and Industrial As- phalt together own directly 76% of the hot plants within the south Los Angeles basin. 4. As alleged in the Copp amended complaint, the defendant Industrial Asphalt is owned by the defendant Gulf Oil Company. Within the course of the last ten years, the defendant Industrial Asphalt acquired the following companies. This list is set forth by way of illustration and is not intended to be a complete list of all paving companies acquired by Industrial Asphalt: (a) Oswald Brothers—El Segundo (b) A-1 Paving—Monrovia 46 Appendix (c) Hall Company—Monrovia (d) Arrow—El Monte (e) Ken Golden—San Diego (f) Norwalk Asphalt—Santa Fe Springs (g) C. O. Sparks—Los Angeles (h) G. G. Fisher—South Gate (i) Newhall Paving—Newhall (j) Schroeder & Co.—Sun Valley (k) Goode and Schroeder—Sun Va!ley (1) Southwest Paving—Sun Valley (m) Corona Plant—Corona (n) John J. Swigact—Orange 5. The defendant Sully-Miller is owned and controlled by the defendant Union Oil Company. The defendant Sully-Miller has aquired the following paving companies within the last ten years: (a) Ken Jones—Redondo Beach (b) Warren Southwest—various locations (c) Ansco—Long Beach (d) S. P. Milling—Ventura 6. The companies remaining unacquired by Industrial Asphalt and Sully-Miller are: (a) Vernon Paving (b) Griffith Paving (c) Associated Asphalt (d) Hooker and Company (c) Copp Paving Cormpany (f) R.J. Noble (g) All American Asphalt 7. In addition to the foregoing there is the South Coast Asphalt Company which the affiant is informed and believes, Appendix 47 and based upon said information and belief alleges, is owned fifty percent by Sully-Miller or Union Oil and is controlled in terms of policy by Sully-Miller. 8. Of the total asphalt sold within the Los Angeles basin, it is estimated by this affiant that Industrial Asphalt accounts for fifty percent of the total sales and Sully-Miller accounts for thirty- three percent and the balance of seventeen percent is represented by the few independent contractors left within the area. 9. With reference to the question of trade secrets and pro- cedures, the affiant states that he is well-acquainted with the production procedures and your affiant can state that there are no secret procedures. The equipment which is used on the jobs has progressively become larger and more efficient but the basic technique of paving has remained unchanged for many years. Trade secrets within the area are impossible for the following reasons: (a) All! contractors use the same union labor; (b) The personnel used by the different companies drift back and forth between one company and another, depend- ing upon the general movement of employment as well as fluctuation in demand between one company and another. (c) All paving companies purchase utilities from the same utility companies; (d) All paving contractors purchase the same brands and type of equipment for paving. (e) All installations made are to specifications prescribed by the owner or the contracting governmental agency. (f) The formula, including amounts and grade of ma- terial to be used in the installations, are common to all and designated by code or contract. 10. Because of the nature of the paving industry and the fact that there are no special techniques which are secret to one com- pany over another, this affiant asserts that an examination of the 48 Appendix cost records of the defendants, Sully-Miller and Industrial Asphalt, will have no effect on the ability of said defendants to compete or place them in a disadvantageous position for future jobs. The sole and single reason for requesting this information from the defen- dants is to determine whether said defendants were actually pricing jobs in the area of competition with the plaintiff at a figure below their own costs of operation for the singular and designed purpose of preventing Copp from operating within his natural area of busi- ness and ultimately eliminating Copp as a competitor, while main- taining high prices beyond the point where the plaintiff Copp was competing, which areas would be defined beyond the limits set forth in the affidavit of afhant W. Duane Rash. Dated: October 27, 1971. /s/_ Ennest A. Copp Ernest A. Copp [Jurat and Certificate of Service Omitted in printing} Appendix 49 United States District Court Northern District of California [Filed December 31, 1971] In Re Coordinated Pretrial Proceedings M File In Western Liquid Asphalt Cases No. 50173-RES This Document Relates To: Copp Paving Company, Inc., et al., Plaintiff s, " Vaimtifs 10. C.71-608-RES Gulf Oil Company, et al., Defendants. ORDER Discovery in the above entitled cause is stayed until further order of the court excepé as herein specifically permitted. All parties may join in and shall respond to all discovery being jointly pursued by the plaintiffs and defendants. Each party shall immediately initiate a program of discovery designed to develop the facts bearing upon the question of whether the alleged conspiracy was one affecting interstate commerce. All requests for admission and all interrogatories directed to that issue shall be filed and served on or before January 20, 1972. All plain- tiffs shall on or before January 20, 1972, send to defendants the names and addresses of the persons connected with plaintiffs who know the facts bearing upon the interstate commerce problem, and defendants shall each within the same time furnish a similar list. Either party wishing to take depositions bearing solely on the inter- state commerce aspect of this case shall notice such depositions within ten (10) days following the receipt of the list and shall take the same within thirty (30) days following the receipt of ” 4p — . such list. It is contemplated that discovery on this issue will be completed by February 19, 1972. If defendants believe that a summary judgment on the interstate commerce point is proper they shall file a motion therefor not later than March 1, 1972, supported by a brief. Plaintiffs shall have twenty (20) days within which to respond. DATED this 30th day of December, 1971. /s/ Russert E. Smirn Russell E. Smith United States District Judge Appendix 51 United States Distr: Court for the Northern District of California [Title of case omitted in printing} [Filed February 22, 1972} ANSWERS OF PLAINTIFFS COPP PAVING COMPANY, INC., COPP EQUIPMENT COMPANY, INC. AND ERNEST A. COPP TO DEFENDANTS’ THIRD SET OF INTERROGATORIES PROPOUNDED TO PLAINTIFFS Plaintiffs Copp Paving Company, Inc., Copp Equipment Com- pany, Inc., and Ernest A. Copp answer Defendants’ Third Set of Interrozatories Propounded to Plaintiffs, as follows: INTERROGATORY NO. 1: State separately as to each plaintiff: (a) whether he or it was engaged in the business of selling asphaltic concrete; and (b) whether he or it was engaged in the highway construction ANSWER TO INTERROGATORY NO. 1: (a) Yes. (b) Yes. INTERROGATORY NO. 2: State separately, as to each plaintiff, whether he or it purchased: (a) liquid asphalt from any marketer thereof located outside California; (b) aggregates from any marketer thereof located outside California; (c) asphaltic concrete from any marketer thereof located out- side California. 52 Appendix ANSWER TO INTERROGATORY NO. 2: (a) Yes. (b) Yes. (c) Yes. By way of explanation of the foregoing, the items are purchased from marketers who, since they sell to plaintiff Copp, obviously sell in Southern California. This does not imply, how- ever, that the same marketers do not have similar products which they sell outside the State of California. INTERROGATORY NO. 3: If the answer to Interrogatory 2, or any part thereof, is afhirma- tive, state separately with respect to each such purchase, the fol- lowing: (a) When, where, from whom and by whom it was made; (b) The product(s) and tonnage(s) involved and the approxi- mate percentage of plaintiff's total purchases of that product for that year which it represented; and (c) The locations from which and to which delivery was made. ANSWER TO INTERROGATORY NGO. 3: This interrogatory has previously been answered. In our previous responses to interrogatories, we have supplied records of all of our purchases as per invoice. For example, all of the original liquid asphalt purchase invoices have been produced and copies of same are in the hands of the defendant. These invoices will show where, when and from whom each purchase was made, the product and tonnage involved and the location to which delivery was made. INTERROGATORY NO. 4: State separately, with respect to each plaintiff that was engaged in the business of selling asphaltic concrete, the following: (a) The area or areas of California in which he or it engaged in such business and, if different, the area or areas of California served by his or its hot plant; Appendix 33 (b) Whether he or it sold asphaltic concrete for use outside California; and (c) If the answer to (b) is affirmative, the following with re- spect to each such sale: (1) When and to whom it was made, and where it was used ; (2) The product(s) and tonnage(s) involved, and the approximate percentage of plaintiff's total sales of that product for that year which it represented; and (3) The locations from which and to which delivery was made. ANSWER TO INTERROGATORY NO. 4: (a) The general area in which the plaintiffs do business is the southern area of Los Angeles County, and generally confined within a 30-35 mile radius of the location of the plaintiffs’ hot plant located in Artesia, California. (b) No. (c) Inapplicable. INTERROGATORY NO. 5: State separately, with respect to each plaintiff that was engaged in the highway construction business, the following: (a) The area or areas of California in which he or it engaged in such business; (b) Whether he or it performed any highway construction pro- jects outside California; and (c) If the answer to (b) is affirmative, the following with respect to each such project: (1) When, where and for whom it was performed, and the general nature of the performance rendered; (2) The total dollar amount received by plaintiff for his or its performance, and the approximate percentage of 54 Appendix plauntiff's total receipts from its highway construction busi- ness in that year which it represented; and (3) If plaintiff furnished asphaltic concrete, liquid asphalt of aggregates in connection with the project, the product(s) and tonnage(s) so furnished, and the locations from which and to which delivery of each such product was made. ANSWER TO INTERROGATORY NO. 5: (a) The general area in which the plaintiffs were engaged in highway construction business was the southern area of Los Angeles County, and generally confined within a 30-35 mile radius of the location of the plaintiffs’ hot plant located in Artesia, California. (b) No (c) Inapplicable. INTERROGATORY NO. 6: With reference to the allegations of the amended complaint that defendants violated Section 1 of the Sherman Act by allegedly combining and conspiring to restrain trade and commerce in the business of selling asphaltic concrete and in the business of trading and paving roads and highways, state separately, as to each such business, the following: (a) Whether plaintiffs contend that the alleged combination and conspiracy was entered into and carried on in the course of interstate trade and, if so, each fact on which this contention is based; and (b) Whether plaintiffs contend that the alleged combination and conspiracy had a direct and substantial effect on interstate trade and commerce and, if so, each fact on which this contention is based. ANSWER TO INTERROGATORY NO. 6: (a) Yes. The facts upon which this contention is stated to be true are based in part upon the following: Appendix 55 (1) That the following facts are true as alleged in the plain- tiffs’ complaint : “17. Beginning at a date urknown to plaintiffs and con- tinuing at least to the date of the filing of this complaint, defendants, and each of them together with the co-conspir- ators, have engaged in a continuous agreement, combination, conspiracy and concert of action in the State of California, including the County of Los Angeles, and in other western states of the United States, in unreasonable restraint of inter- state commerce and trade, in the sale of hot asphalt oil, asphaltic concrete, and in the business of grading and pav- ing of roads and highways and the defendants, and each of them, have purposely and with deliberate and specific intent, attempted to monopolize, conspired with each other and the co-conspirators, to monopolize and did monopolize, the aforesaid trade and commerce, all in violation of Sec. tions 1 and 2 of the Sherman Act. “18. One of the purposes and objectives of the afore- said combination and conspiracy to restrain and the combi- nation and conspiracy to monopolize, attempt to monopolize and monopolization has been the destruction and elimination of plaintiffs as a viable entity so that: (a) Plaintiffs would be eliminated as a competitor of Industrial and Sully-Miller; (b) Plaintiffs would be penalized for remaining as an independent competitor in the manufacture and sale of as- phaltic concrete, and in the business of grading and paving highways and roads. “19. In furtherance of the above-described violations of said Anti-trust laws, the defendants, and each of them, to- gether with the co-conspirators, agreed to and in fact engaged. among other things, in the following acts and practices: Appendix (a) Fixed, stabilized and maintained the prices at which hot asphalt oil would be sold to end users, including govern- mental agencies and to hot plant owners, including plaintiffs; (b) Allocated and exchanged between each other sup- plies of crude petroleum and petroleum products, including, but not limited to supplies of hot asphalt; (c) Fixed, stabilized and maintained the prices at which asphaltic concrete would be sold to end users, including governmental agencies, and to contractors; (d) Eliminated competition and obtained and exercised monopoly power in the operation of hot plants and in the sale of asphaltic concrete by acquiring ownership and con- trol of a substantial number of hot plants, including more than sixty percent (60%) of all of the hot asphalt plants operated in Southern California and in Los Angeles and Orange Counties; (e) Allocated and divided, on a geogiaphic basis and upon a customer basis, the outlets to whom hot asphalt oil and asphaltic concrete would be sold; (f) Sold asphaltic concrete at unreasonably low prices in the areas in which they competed with plaintiffs and sub- sidized said unreasonably low prices by artificially maintain- ing prices in other areas in which plaintiffs did not compete; (g) Sold and installed asphaltic concrete at or below cost in areas where plaintis competed with defendants and subsidized said sales by artificially maintaining higher prices in areas where plaintiffs did not compete; (h) Threatened actual and potential customers of plain- tiffs that unless they refrained from purchasing asphaltic concrete from plaintiffs in plaintiffs’ area of competition, that said customers would be unable to obtain supplies of asphaltic concrete at a competitive price in other areas where Appendix 37 said customers had no other source of supply other than defendants. (i) Extended unreasonably advantageous credit terms to customers in order to preclude said customers from purchas- ing asphaltic concrete from any other suppliers, including laintiffs: (j) Required customers who were indebted to defendants to purchase all of their asphaltic concrete from said defend- ants upon threat of immediately enforcing the collection of outstanding debt, thereby precluding said customers from purchasing asphaltic concrete from other suppliers, including plaintiffs; (k) Tied the sale of other commodities, including base rock material, and tied the availability of credit to the sale of asphaltic concrete so as to induce and require purchasers of asphaltic concrete to purchase their supply thereof from Sully-Miller and not to purchase their supply from third (1) Sold hot asphalt oil and asphaltic concrete in such a manner as to discriminate in price between purchasers of such commodities of like grade and quality where the effect of such discrimination was to substantially lessen competi- tion and tended to create a monopoly; (m) Gulf acquired all of the capital stock of Industrial, as hereinabove alleged, and the effect thereof may be sub- stantially to lessen competition and to tend to create a monopoly, in violation of Section 7 of the Act of Congress of October 15, 1914, commonly known as the Clayton Act, 15 US.C., Section 18, as amended; and (n) Union acquired all of the capital stock of Sully- Miller, as hereinabove alleged, and the effect of that acqui- sition may be substantially to lessen competition, and to tend to create a monopoly, in violation of Section 7 of the 58 Appendix Act of Congress of October 15, 1914, commonly known as the Clayton Act, 15 U.S.C., Section 18, as amended.” (2) That each of the defendants is engaged in interstate com- merce in that their business is that of constructing and supplying materials for the construction of Federal roads and highways planned and controlled by the Federal Government, likewise financed by the Federal Government under the Streets and High- ways Act of the United States Code Annotated, Title 23 §§ 104, et seq. (3) The defendants are further engaged in interstate com- merce by virtue of the fact that a substantial portion of the crude oil which is refined for purposes of producing the various petro- leum products, including liquid asphalt, is brought into the State of California from foreign countries. (4) The defendants are further engaged in interstate com- merce by virtue of the fact that each of the defendants does business across state lines and does sell and transport across state lines the specific asphaltic products which are the subject of competition involving plaintiff Copp. (b) Plaintiffs do contend that the alleged combination and conspiracy had a direct and substantial effect on interstate trade and commerce. It is plaintiffs’ understanding that where there is a multi-state conspiracy as alleged and an agreement to divide up the markets between the various competitors on a geographic basis in order to avoid competition, -his agreement and geographical division has and is presumed to have, a direct and substantial effect on interstate trade and commerce. INTERROGATORY NO. 7: With reference to the allegations of the amended complaint that defendants violated Section 2 of the Sherman Act by at- tempting to monopolize, conspiring to monopolize and mo- Appendix 59 nopolizing trade and commerce in the business of selling asphaltic concrete and in the business of grading and paving roads and highways, state separtely, as to each such business, the following: (a) The geographic area or areas in which plaintiffs contend that defendants attempted to monopolize, conspired to monopolize and monopolized such business; (b) The name and address of each person, firm or corporation that was engaged in such business in each area identified in response to (a); (c) Whether plaintiffs contend that such alleged attempt or attempts to monopolize, conspiracy or conspiracies to monopolize, and monopolization or monopolizations occurred in the course of interstate commerce and, if so, each fact on which such con- tention is based; and (d) Whether plaintiffs contend that such alleged attempt or attempts to monopolize, conspiracy or conspiracies to monopolize, and monopolization or monopolizations had a direct and substantial effect on interstate commerce and, if so, each fact on which such contention is based. ANSWER TO INTERROGATORY NO. 7: (a) The geographical areas in which it is contended the de- fendants attempted to monopolize, conspired to monopolize and monopolized were in the states of California, Oregon, Washing- ton, Arizona, Nevada, and New Mexico. The names and addresses of each firm engaged in the areas described are all of the defend- ants named in the action. The plaintiff cannot at this time, with specificity, name the geographical areas which were assigned to each of the defendants for purposes of their exploitation to the exclusion of the other defendants. (c) The answer is yes. The facts upon which said contentions are based are (1) the defendants acquire their crude petroleum across state lines. (2) The defendants and each of them ship their products across state lines. (3) The specific and primary business 60 Appendix of these defendants which relates to their areas of competition against the plaintiff Copp is “in commerce’ in that the specific business or industry referred to is the paving of highways, and the highways concerned are to a substantial degree Federal or interstate highways. (d) The attempts to monopolize, the conspiracy to monopolize, and the monopolization itself had a direct and substantial effect on interstate commerce. The monopoly we are describing is a geographical division of the markec, and where such a territorial division occurs, there is a reduction in competition among the participants, and an effect on interstate commerce is presumed. INTERROGATORY NO. 8: With reference to the allegations in the amended complaint that defendants violated the Robinson Patman Act by allegedly engaging in price discrimination in the sale of liquid asphalt, state the following: (a) The business or businesses as to which plaintiffs contend that the effect of such alleged price discrimination may be to substantially lessen competition and to tend to create a monopoly, and, with respect to each such business, each fact on which plain- tiffs base their contention that such business was a line of inter- state commerce; (b) The geographic area or areas in which plaintiffs contend that the effect of such alleged price discrimination may be to substantially lessen competition or tend to create a monopoly; (c) With respect to each business and geographic area identi- fied in response to (a) and (b), the name and address of each person, firm or corporation who engaged in that business in that area; and (d) Separately, with respect to each defendant who allegedly engaged in such price discrimination, each fact on which plain- tiffs base their contention that that defendant: Appendix 61 (1) was engaged in interstate commerce; and (2) engaged in such alleged price discrimination in the course of interstate commerce. ANSWER TO INTERROGATORY NO. 8: (a) The business or businesses where competition is substan- tially lessend are the businesses identified as the oil refiners whose business, among other things, is to produce liquid asphalt, and, secondarily, those businesses which are asphalt applicators and contractors. As to the first group, to wit, the refiners of liquid asphalt, they are in interstate commerce upon the following grounds: (1) A substantial portion of the crude petroleum comes from across state lines; (2) A substantial portion of the liquid asphalt products are shipped across state lines; (3) A vast preponderance of liquid asphalt produced by the refiners is to be ultimately applied on interstate and Federal roads and highways which are “in commerce.” As to the contractors and dealers in liquid asphalt (as dis- tinguished from the refiners of liquid asphalt) the plaintiffs base their contention that such businesses are in interstate commerce upon the fact that: (1) They do business across state lines; (2) They ship their product across state lines; (3) A substantial portion of their work which is con- structing highways is performed on interstate and Federal highways, which are by definition “in commerce.” (b) The geographic areas in which the price discrimination lessens competition and tends to create a monopoly is the area de- 62 Appendix fined as the western states, including California, Arizona, Nevada. New Mexico, Washington, and Oregon. (c) The plaintiff cannot identify at this time the specific geo- gtaphic areas which had been assigned by conspiratorial agree- ment to each of the defendants for its specific exploitation. Plain- tiff is able to state at this time that approximately eighty-five per cent (85%) of the liquid asphalt business within Los Angeles County is controlled by two companies, to wit, Industrial Asphalt, which in turn is owned by Gulf Oil Company, and Sully-Miller, which in turn is owned by Union Oil. The exact tonnage or measured product which is sold is information within the know]- edge of the defendants. (d) The facts upon which plaintiffs contend the defendants were in interstate commerce is set forth in Answer to Interroga- tory No. 8 (a) hereinabove. The two defendants who are in immediate and direct competition with the plaintiff are Sully- Miller and Industrial. Each of said defendants does business across state lines, and further, a substantial portion of their business is in the construction and maintenance of interstate and Federal highways, which is “in commerce.” The specific way the price discrimination is carried out as between these two defendants and the balance of the industry is by the simple means of the parent company making liquid asphalt products available to the subsidiary company at a price substantially less than that avail- able to independent asphalt contractors at large. For example, with Industrial Asphalt, Industrial purchases the total liquid asphalt production of the Gulf Oil Company at a price which both Gulf and Industrial refuse to disclose and then resell the product to the general industry likewise at a price which both Gulf and Union refuse to disclose. It is presumed by the plaintiff for purposes of this motion that Industrial sells their product at a price substantially higher than the price they purchase the same Appendix 63 product at and they are, therefore, given an automatic advantage over any competitor since the competitors are buying retail from Industrial, while Industrial is buying wholesale from Gulf. INTERROGATORY NO. 9: Answer Interrogatory 8 as though the words “liquid asphalt” ANSWER TO INTERROGATORY NO. 9: Interrogatory No. 9 has been answered in the Answer to In- terrogatory No. 8 in that the two defendants, to wit, Industrial and Sully-Miller, are producers of asphaltic concrete, and further, that the asphaltic concrete is produced for the specific purpose of applying same to interstate and Federal highways, and a substan- tial portion of the business of each defendant is in the construction of the interstate and Federal highways. INTERROGATORY NO. 10: With reference to the allegations of the amended complaint that defendants violated Section 3 of the Clayton Act by allegedly entering into tying agreements in connection with the sale of asphaltic concrete, state the following: 3 (a) The business or businesses as to which plaintiffs contend that the effect of such alleged tying agreements may be to sub- stantially lessen competition and tend to create a monopoly and, with respect to each such business, each fact on which plaintiffs base their contention that such business was a line of interstate commerce; as (b) The geographic area or areas in which plaintiffs contend that the effect of such alleged tying agreements may be to sub- stantially lessen competition or tend to create a monopoly; (c) With respect to each business and geographic area identi- fied in response to (a) and (b), the name and address of each person, firm or corporation who engaged in that business in that area; and 64 Appendix (d) Separately, with respect to each defendant who allegedly entered into such tying agreements, each fact on which plaintiffs base their contention that that defendant: (1) was engaged in interstate commerce; and (2) entered into such alleged tying agreements in the course of interstate commerce. ANSWER TO INTERROGATORY NO. 10: The information requested in Interrogatory No. 10 has been supplied by the Answer to the previous interrogatory in that the two principal competitors of the plaintiff are owned by the de- fendants Gulf and Union. In all other respects, the answer to Interrogatory No. 10 is the same as the answer to Interrogatory No. 8. INTERROGATORY NO. 11: With reference to the allegations of the amended complaint that the acquisition, by defendant Gulf Oil Corporation, of all the capital stock of defendant Industrial Asphalt, Inc. was in violation of Section 7 of the Clayton Act, state the following: (a) The business or businesses in which plaintiffs contend that the effect of such acquisition may be to substantially lessen competition or tend to create a monopoly and, as to each such business, each fact on which plaintiffs base their contention that such business was a line of interstate commerce; (b) The geographic area or areas in which plaintiffs contend that the effect of such acquisition may be to substantially lessen competition or tend to create a monopoly; (c) With respect to each such business and area identified in (a) and (b), the name and address of each person, firm or cor- poration engaged in that business in that area; and (d) Each fact on which plaintiffs base their contention that Industrial Asphalt, Inc. was engaged in interstate commerce. Appendix 65 ANSWER TO INTERROGATORY NO. 11: (a) The business or businesses in which the effect of such acquisitions to substantially lessen competition and create a mo- nopoly is (1) in the refining business, (2) in the business of selling liquid asphalt, and (3) in the business of asphalt con- tracting. The fact upon which plaintiffs base their contention that the businesses are in interstate commerce are: (1) that the crude petroleum crosses state lines; (2) that the liquid asphalt is shipped across state lines; (3) that the companies within the area of selling and dis- tributing liquid asphalt and asphaltic products are doing business across state lines; (4) that the asphaltic products are designed and used substantially for the construction and paving of interstate and Federal roads, and are therefore by definition “in com- merce. (b) The geographic area or areas are the western states includ- ing California, Arizona, Nevada, New Mexico, Washington, and Oregon. (c) The names and addresses of each of the defendants are involved, but the plaintiff cannot identify with specificity the areas which each of the defendants have as their domain as a result of the division of the market. (d) (1) That Industrial Asphalt maintains and owns plants in Arizona and Nevada; (2) that Industrial Asphalt shipped across state lines on a daily basis to Arizona and Nevada. (3) that Industrial Asphalt takes the total supply of its asphaltic products and, in effect, is the distributor on behalf of Gulf Oil of its asphaitic products; (4) that a substantial portion of work performed by In- dustrial Asphalt is on interstate and Federal roads; and that said roads are by definition “in commerce.” 66 Appendix INTERROGATORY NO. 12: Answer Interrogatory 11 as though the words “Gulf Oil Corpo- ration” used therein read “Union Oil Company of California’, and as though the words “Industrial Asphalt, Inc.’ used therein read “Sully-Miller Contracting Company.” ANSWER TO INTERROGATORY NO. 12: (a) Sully-Miller Contracting Company is owned by the Union Oil Company. (b) Sully-Miller does business across state lines, including, but not limited to, transactions in Utah and Thailand. (c) Sully-Miller’s business is that of an asphalt contractor whose major business is the constructing and paving of highways, and a substantial portion of their work is upon interstate and Federal highways, which said work is “in commerce.” Dated: February 18, 1972. Respectfully submitted, CORINBLIT AND SHAPERO By: /s/ MARTIN M. SHAPERO Martin M. Shapero Attorney for Plaintiffs Appendix 67 VERIFICATION State of California County of Los Angeles—ss. Ernest A. Copp, first duly sworn, states: I am the President of Copp Paving Company and Copp Equip- ment Company, and I am authorized to make this verification on behalf of said companies. | have read the foregoing Answers of Plaintiffs Copp Paving Company, Inc., Copp Equipment Company, Inc., and Ernest A. Copp to Defendants’ Third Set Of Interrogatories Propounded to Plaintiffs, and the matters stated therein are true to the best of my knowledge, information and belief. /s/ Ernest A. Copp Ernest A. Copp [Jurat and Certificate of Service omitted in printing} 68 Appendix United States District Court for the Northern District of California [ Title of case omitted in printing} [Filed February 22, 1972} RESPONSE OF DEFENDANT UNION OIL COMPANY OF CALIFORNIA TO PLAINTIFFS’ INTERROGATORIES Union Oil Company of California, hereafter “Union,” responds to Interrogatories Propounded by Plaintiff Copp with Reference to the Issue of Interstate Commerce, dated January 19, 1972, as follows: se See INTERROGATORY NO. 10 With reference to the source of the crude oil which your com- pany processes, state for each year from 1958 to date the source of said crude oil, and in said response set forth specifically: A. The total amount of crude oil processed by your company within the State of California for each year in question. Set forth the number in terms of either gallons or barrels or the standard measurement which you may use at your refinery. B. Set forth in the measurement used by you the amount of oil refined for each year which is obtained by your company, the origin of which was in the confines of the State of California. C. Set forth in the measurement used by you the amount of oil refined for each year which is obtained by your company, the origin of which was outside of the confines of the State of California. D. Set forth in the measurement used by you the amount of oil refined for each year which is obtained by your company, the origin of which was outside the confines of the continental United States. Appendix 6&9 RESPONSE TO INTERROGATORY NO. 10 Union objects to this interrogatory as to any period of time on the ground that information respecting the sources of crude oil processed by Union is irrelevant to the question whether the alleged antitrust activities in connection with the marketing of other products occurred in or affected interstate commerce. However, without waiving its objections to this interrogatory, and solely for purposes of moving this case along and avoiding a dispute over 1966 through 1970 is set forth in Exhibit A hereto. INTERROGATORY NO. 11 State the location of each refinery owned by your company within the State of California, identifying the period of time said refinery has been in existence from the years 1958 to date. A. With reference to the refineries identified herein, set forth and state the capacity of each refinery in terms of the total crude oil processed by said refinery for each year, from 1958 to date. B. State for each refinery the total amount of petroleum products produced by each refinery from 1958 to date, including gasoline, kerosene, motor oil, and liquid asphalt production. (The list requested is by way of example only, and if any other petroleum products are produced, you will set forth each and every other petroleum product so produced including quantity thereof.) RESPONSE TO INTERROGATORY NO. 11 During all of the period June 24, 1966 to December 30, 1970, Union owned the following refineries in the State of California: Los Angeles Refinery San Francisco (Oleum) Refinery Rodeo, California The total amounts of crude oil processed by each such refinery during the years 1966 through 1970, and the total amounts of liquid asphalt produced at each such refinery during the years 1966 through 1970 are set forth in Exhibit B hereto. Except as so answered, Union objects to this interrogatory on the ground that information respecting petroleum products other than liquid asphalt is irrelevant. INTERROGATORY NO. 12 For each of the petroleum products so identified in response to Interrogatory No. 11 hereinabove, state for each year in ques- tion the total volume of said product sold and distributed within the confines of the State of California. A. For each of the petroleum products so identified in response to Interrogatory No. 11 hereinabove, state for each year in ques- tion the total volume of said product sold and distributed out- side the confines of the State of California. B. For each of the petroleum products so identified in response to Interrogatory No. 11 hereinabove, state for each year in ques- tion the total volume of said product sold and distributed out- side the confines of the continental United States. RESPONSE TO INTERROGATORY NO. 12 The total amounts of liquid asphalt sold by Union to customers located in these areas during the years 1966 through 1970 are set forth in Exhibit C hereto. However, the summary sales records from which these figures were taken include both sales of liquid asphalt produced in Union's California refineries and sales of liquid asphalt produced elsewhere. If plaintiffs wish to know only the amount of liquid asphalt sold by Union that was produced by it in its California refineries, it will be necessary to tabulate Appendix 71 this information from Union Form 625, Asphalt Report, and, pursuant to R.C.P. Rule 33(c), Union will make such records available if plaintiffs wish to perform this tabulation. Except as so answered, Union objects to this interrogatory on the ground that information respecting petroleum products other than liquid asphalt is irrelevant. INTERROGATORY NO. 13 With reference to all crude oil which you have hereinabove identified as its origin being outside the confines of the State of California, identify the means by which you received said oil including a description of the specific boat lines if said oil was received by boat, or the specific railroad lines if said oil was received by rail. RESPONSE TO INTERROGATORY NO. 13 During the period June 24, 1966 to December 30, 1970, all such crude oil was received by tankships, in some instances tank- ships owned or chartered by Union, and in other instances tank- ships owned or chartered by other operators, the specific names of whom cannot possibly be relevant to this case. INTERROGATORY NO. 14 With reference to all petroleum products shipped outside the confines of the State of California by you, identify the means by which you shipped said oil including a description of the specific railroad lines if said oil was shipped by rail. RESPONSE TO INTERROGATORY NO. 14 72 Appendix the ground that information respecting the shipment of petroleum products other than liquid asphalt is irrelevant to this case. INTERROGATORY NO. 15 With reference to liquid asphalt, set forth for each year from 1959 to the present, the total amount of liquid asphalt shipped to the states of : A. Washington; B. Oregon; C. Nevada; D. New Mexico. RESPONSE TO INTERROGATORY NO. 15 The total amounts of liquid asphalt shipped by Union from its California refineries to its Edmonds, Washington and Portland, Oregon asphalt topping plants in the years 1966 through 1969 are set forth in Exhibit D hereto. However, in order to determine the total amounts shipped by Union to these states, it is necessary to add to the figures set forth in Exhibit D the amounts of liquid asphalt sold by Union to customers in these states that was shipped by Union from its California refineries to these customers. Such figures can be derived by tabulating the information contained in Union Form 625, Asphalt Report, and Union Form 605-T, Order/Invoice. Pursuant to R.C.P. Rule 33(c), Union will make such documents available if plaintiffs wish to perform this tabu- lation. In the case of shipments by Union to Nevada, the same tabulation must be performed. Union shipped no asphalt to New Mexico. INTERROGATORY NO. 16 With reference to sales made within the State of California, set forth for the years 1958 to the present, the total amount of liquid asphalt sold in each county of the State of California. Appendix 73 INTERROGATORY NO. 17 With reference to the sale of liquid asphalt, identify for each year from 1958 to date, each company to whom you have sold liquid asphalt, setting forth by way of summary for each year the total amount of liquid asphalt sold to said individual company. (Listing, for example, the total amount of liquid asphalt sold by Gulf to Sully-Miller for the year 1965.) RESPONSE TO INTERROGATORIES NOS. 16 AND 17 This information can only be derived by tabulating sales data contained in Union Form 625, Asphalt Report. Pursuant to R.C.P. Rule 33(c), Union will make such documents available if plain- tiffs wish to perform this tabulation. Dated: February 22, 1972. Douglas C. Gregg E. A. McFadden Moses Lasky Richard Haas George A. Cumming, Jr. Brobeck, Phleger & Harrison By /s/ Georce A. CUMMING, JR. George A. Cumming, Jr. Attorneys for Defendant Union Oil Company of California 74 Appendix EXHIBIT A Sources of Crude Oil Processed in Union's California Refineries, 1966-1970 ( Bbis ) California Other U.S. Foreign en 61,691,830 None 2,445,335 EY Gubnnitianensintinibiieches 62,116,132 1,706,688 1,231,527 EEE censecnidsnntinenishiantias 57,268,214 10,625,447 873,010 TE” eatsndicteentuieniitdenstind 53,653,070 13,420,006 2,807,035 1970 we F * 10,720,427 1,698,087 EXHIBIT B Crude Oil Processed and Liquid Asphalt Produced in Union's California Refineries, 1966-1970 Total Crude Refinery & Year Processed (Bbis) 1966—Los Angeles ..... 34,119,607 Santa Maria ....... 11,292,692 San Francisco ...... 18,724,866 1967—Los Angeles 33,427,793 Santa Maria . 12,154,616 San Francisco ........ 19,471,938 I IE serncrreceancusenttatieendastinands 36,233,999 Santa Maria 12,543,723 San Francisco . 19,988,949 1969—Los Angeles 37,106,852 Santa Maria 11,575,400 San Francisco .. 21,192,859 1970—Los Angeles 32,075,603 Ee 10,631,171 San Francisco 21,390,997 EXHIBIT C Sales of Liquid Asphalt by Union, 1966-1970 (Tons) Year California Other U.S. 1966 239,292 141,329 1967 218,354 121,870 1968 ...... 246,792 232,984 1969 269,157 262,964 EEE ‘chulsseudesebastnteniibeicns 285,504 304,171 Total 64,137,165 65,054,347 68,766,671 69,880,111 64,097,751 Appendix 75 EXHIBIT D Shipments of Liquid Asphalt by Union to lis Edmonds, Washington, and Portland, Oregon Asphalt Plants 1966-1970 (Tons) Year Edmonds Portland eS . 75,194 —o— SP setencesniicestoathinhiettindich 74,041 —o— 1968 vedi —o— 17,032 1970 j 11,291 84,337 VERIFICATION State of California County of Los Angeles—ss. R. P. Van Zandt, first duly sworn, states: I am an officer, to wit Assistant Secretary of Union Oil Com- pany of California, a corporation, and am authorized to and make this vertification on behalf of said corporation. I have read the foregoing Response of Defendant Union Oil Company of Cali- fornia to Plaintiffs’ Interrogatories, and the information stated therein is true, to the best of my knowledge, information and belief. /s/ R. P. VAN ZANDT { Jurat and Certificate of Service omitted in printing} 76 Appendix United States District Court for the Northern District of California [ Title of case omitted in printing} [Filed February 22, 1972] RESPONSE OF DEFENDANT UNION OIL COMPANY OF CALIFORNIA TO PLAINTIFFS’ REQUESTS FOR ADMISSIONS Defendant Union Oil Company of California (hereafter “Union”) responds to “Requests For Admissions Filed Pursuant to The Order Of Court Dated December 30, 1971, Relating To The Issue Of Interstate Commerce And Whether The Alleged Con- spiracy Was One Affecting Interstate Commerce,” dated January 19, 1972, as follows: REQUEST FOR ADMISSION NO. 3: That the Federal Government contributes a portion of the cost of construction of certain public highways. RESPONSE TO REQUEST FOR ADMISSION NO. 3: Union objects to this request, and to requests numbers 4 through 16, which are of a similar vein, on the ground that whether or not the Federal Government contributed money in connection with local highway construction projects, or whether the Federal Govern- ment required any particular kind of performance or behavior as a condition of its contribution, is irrelevant to the question of interestate commerce. However, without waiving this objection, and solely for the purpose of moving this case along and avoiding a dispute over inconsequential matters, Union admits that the mat- ter stated in this request is true. Appendix 77 REQUEST FOR ADMISSION NO. 4: That the basis of such Federal participation is the Federal Aid Highway Act (23 U.S.C., Sections 101 through 141). RESPONSE TO REQUEST FOR ADMISSION NO. 4: Without waiving the objection to this request previously set forth in its Response to Request for Admission No. 3 and, again, solely for the purpose of moving this case along and avoiding a dispute over inconsequential matters, Union admits that the matter set forth in this request is true. REQUEST FOR ADMISSION NO. 5: That under the Federal Aid Highway Act referred to here- inabove, the Federal Government assumes up to ninety percent (90%) of the highway construction costs (23 U.S.C. 120) upon approval by the Secretary of Commerce of the plans and specifi- cations submitted by the various state highway departments (23 U.S.C. Section 109). RESPONSE TO REQUEST FOR ADMISSION NO. 5: Without waiving the objection to this request previously set forth in its Response to Request for Admission No. 3 and, again, solely for the purpose of moving this case along and avoiding a dispute over inconsequential matters, Union admits that the matter set forth in this request is true. REQUEST FOR ADMISSION NO. 6: To qualify for contributions by the Federal Government the state must conform to standards set forth in the statute, such as vehicle weight and width limitations (23 U.S.C., Section 127), control of outdoor advertising (23 U.S.C., Section 131), creation of a highway safety program (23 U.S.C., Section 135), control of junk yards (23 U.S.C., Section 136). RESPONSE TO REQUEST FOR ADMISSION NO. 6: Without waiving the objection to this request previously set forth in its Response to Request for Admission No. 3 and, again, 78 Appendix solely for the purpose of moving this case along and avoiding a dispute over inconsequential matters, Union admits that the matter set forth in this request is true. REQUEST FOR ADMISSION NO. 7: That each project is subject to the inspection and approval of the Secretary of Transportation and was formerly under the con- trol of the Secretary of Commerce. RESPONSE TO REQUEST FOR ADMISSION NO. 7: Without waiving the objection to this request previously set forth in its Response to Request for Admission No. 3 and, again, solely for the purpose of moving this case along and avoiding a dispute over inconsequential matters, Union admits that the matter set forth in this request is true. REQUEST FOR ADMISSION NO. 8: That all wages paid for laborers and mechanics employed by contractors or subcontractors on roads funded by the Federal Aid Highway Act are controlled by the Davis-Bacon Act (40 U.S.C., Section 276A) (23 U.S.C., Section 113). RESPONSE TO REQUEST FOR ADMISSION NO. 8: Without waiving the objection to this request previously set forth in its Response to Request for Admission No. 3 and, again, solely for the purpose of moving this case along and avoiding a dispute over inconsequential matters, Union admits that the matter set forth in this request is true. REQUEST FOR ADMISSION NO. 9: That small business enterprises are to be assisted by the Secre- tary insofar as feasible in obtaining contracts in order to encour- age ful’ and free competition under the Federal Aid Highway Act (23 U.S.C., Section 304). Appendix 79 RESPONSE TO REQUEST FOR ADMISSION NO. 9: Without waiving the objection to this request previously set forth in its Response to Request for Admission No. 3 and, again, solely for the purpose of moving this case along and avoiding a dispute over inconsequential matters, Union admits that the mat- ter set forth in this request is true. REQUEST FOR ADMISSION NO. 10: That any state declaring to avail itself of the provisions of the Federal Aid to Highway Act (Title 23, U.S.C. 101 et seq.) shall have a highway department which shall have adequate powers and be suitably equipped and organized to discharge to the satisfaction of the Secretary the duties required by the Act (23 US.C., Section 302). RESPONSE TO REQUEST FOR ADMISSION NO. 10: Without waiving the objection to this request previously set forth in its Response to Request for Admission No. 3 and, again, solely for the purpose of moving this case along and avoiding a dispute over inconsequential matters, Union admits that the matter set forth in this request is true. REQUEST FOR ADMISSION NO. 11: That the State of California has qualified to receive and does receive funds from the Federal Government pursuant to Title 23 U.S.C. Section 101 et seq., and assents specifically to the provi- sions of Title 23 of the United States Code relative to Fede. . aid and other cooperative highway work (Section 820, Streets and Highways Code of the State of California). RESPONSE TO REQUEST FOR ADMISSION NO. 11: Without waiving the objection to this request previously set forth in its Response to Request for Admission No. 3 and, again, solely for the purpose of moving this case along and avoiding a dispute over inconsequential matters, Union admits that the matter set forth in this request is true. es 80 Appendix REQUEST FOR ADMISSION NO. 12: That the State of California has apportioned ninety-eight and one-half percent (982%) of the money received by it under the Federal Highway Act of 1950 for the improvement of county highways (Section 201, Streets and Highways Code of the State of California). [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0041%3A2. Public record. Not legal advice.