Petition for Writ of Certiorari — B. C. Rogers Processors, Inc. v. BOC Group, Inc.

——-

No. J

a ep fg it

Suprene Court of the LA Hcb SS tHe ARR 29 1998

>

OFFICE OF THE CLERK

October Term, 1997

B. C. ROGERS PROCESSORS, INC., B. C. ROGERS

POULTRY, INC., CHOCTAW MAID FARMS, INC., FOREST

PACKING COMPANY, INC., MARSHALL DURBIN, INC.,

MARSHALL DURBIN FOOD - CORPORATION,

MARSHALL DURBIN POULTRY, INC., MARSHALL

DURBIN OF TUPELO, INC. and MOHAWK PACKING

COMPANY,

Petitioners,

VS.

THE BOC GROUP, INC., LIQUID AIR CORPORATION and

LIQUID CARBONIC INDUSTRIES CORPORATION,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Eleventh Circutt

PETITION FOR WRIT OF CERTIORARI

MELVYN L. SEGAL ALEX A. ALSTON, JR.

JEFFREY M. FORSTER Counsel of Record

FORSTER & SEGAL RICHARD L. JONES

160 West Santa Clara Street ALSTON, & JONES

Suite 1100 121 North State Street

San Jose, California 95113 Post Office Drawer 1532

(408) 977-3139 Jackson, Mississippi 39215-1532

(601) 948-6882

STEPHEN M. MALONEY

Post Office Box 1415

Madison, Mississippi 39130-1415

(601) 898-0078

Attorneys for Petitioners

146082 (800) 274-3321 * (800) 359-6859 ae

A DIVISION OF COUNSEL PRESS

i

QUESTION PRESENTED FOR REVIEW

Whether, in light of this Court’s ruling in Lexecon v. Milberg

Weiss Bershad Hynes & Lerach, the Court of Appeals erred in

affirming the decision of the United States District Court for

the Middle District of Florida to retain these cases for trial,

over Petitioners’ timely objection, when the cases had been

transferred to that district by the Judicial Panel on Multidistrict

Litigation for consolidated pretrial proceedings, pursuant 28

U.S.C. § 1407(a).

il

PARTIES TO THE PROCEEDING

In addition to the parties named in the caption, the

following were parties to the action below: Foster Poultry Farms

Company, McCarty Farms, Inc., and McCarty Foods, Inc. Foster

Poultry Farms Company, a California corporation, has not

joined in this Petition, because Foster Poultry filed its individual

action in the United States District Court for the Middle District

of Florida after the Judicial Panel on Multidistrict Litigation

consolidated all of the cases in that district for pretrial

proceedings. Foster Poultry would have tried its case in the

Middle District of Florida, unless the district court transferred

it pursuant to 28 U.S.C. § 1404(a). McCarty Farms and McCarty

Foods are not parties to this proceeding, because they have

reached a settlement with Respondents.

Parent companies of the parties are as follows: Liquid Air

Corporation is a wholly owned subsidiary of Air Liquide

America Corporation, which is in turn a wholly owned

subsidiary of Air Liquide, S.A. (France); Liquid Carbonic

Industries Corporation is a wholly owned subsidiary of Praxair,

Inc.; BOC Group, Inc. (a wholly owned subsidiary of BOC

Group PLC (UK). McCarty Foods, Inc. and McCarty Farms

Inc. are wholly owned subsidiaries of Tyson Foods, Inc. None

of the other parties to this action have either parent companies

or nonwholly owned subsidiaries which are not themselves

parties to the action.

ili

TABLE OF CONTENTS

Page

Question Presented for Review ................... i

PUPOS OO Tie PIOCOGUIAE «occ see ccccesvcuecsee il

SE I Soca a iwas iwce a ndp pierce nsaee iii

Ey Sh'h0 hon 6 Cd wow Na ee useteaeteetss iv

is usa 6 yds b 6 SKK ued oo Stee nes ]

Statement Of Jurisdiction .........ccescccccecceces l

Statutory Provision and Rule Involved ............. 2

NE Ue IG 6 o's k vnsenctessccttensine 3

gee ENE RR eer Per reer 3

B. Prior Proceedings In This Case ............. 4

Pee 3 BO er err +

2. The Decision of the District Court ...... 5

3. The Decision of the Eleventh Circuit .... 7

Reasons for Granting the Writ .................... 8

Certiorari Should Be Granted Pursuant To Rule

10 Because The Decision Of The Court Of Appeals

Addresses An Important Federal Question In A

Manner Inconsistent With A Relevant Decision Of

IN Sos toa ce wits os Sek 008s 8a obo 5 8

I ea ceue tic ceece’s 12

iv

Contents

Page

TABLE OF CITATIONS

Cases Cited:

Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach,

__ U.S. _., 118 S. Ct. 956, __ L. Ed. 2d __ (1998)

anh THEE CREAR E SAREE ROCCE Ed CORREA i, 7, 8,9, 10, 11

State of Florida, et al. v. Liquid Air Corporation, et al.,

Ee wie toe Cente Ge TOs os vectnciesecesas 1

Statutes Cited:

RLS | fi St OSes ary peep er negte eee a8 ee 3

Se as, BE ob 05 6 Ges Cons es hada ee |

Be A Ev oss cas a Coed Cie atbieeaowed ii, 8

Pe Was Be POTD hb. vk oh etn ke +5008 Takes i, 2, 4, 8, 10

Rules Cited:

See SO EY coos twas dae retecr eee 7

we eee ree Oe Pp per oy ene 7

Bo En eahideg ON pai AE AARON Aoi

Contents

APPENDIX

Appendix A — Order Of The United States Court Of

Appeals For The Eleventh Circuit Filed January 29,

SOEs estou CPW in ches NUeS h UROL RS AEE ETR

Appendix B — Order Of The Judicial Panel On

Multidistrict Litigation Denying Motion As Moot Filed

PT Fay POE as he Ch eben Fee RixemEr el ces shs%

Appendix C — Order Of The United States District Court

For The Middle District Of Florida, Orlando Division,

Pemee RS SU THOS on bs Che ce niece dae kcen es

Appendix D — Order Denying Petition For Writ Of

Mandamus Of The United States Court Of Appeals

For The Eleventh Circuit Filed February 23, 1996 .

Appendix E — Order Of The United States Supreme

Court For The Middle District Of Florida, Orlando

Division, On Motion For Suggestion Of Remand Dated

SRN Gy BO na 6s 5 nce ates s Vee eeaems

Appendix F — Excerpts Of Hearing Before The United

States District Court For The Middle District Of

Florida, Dated February 6, 1996 ................

Appendix G — Motion For Judgement Of The United

States District Court For The Middle District Of

Florida, Orlando Division Filed April 4, 1996.....

Appendix H — Letter From Kenneth A. Rutherford To

Office Of The Clerk Re: B.C. Rogers Processors, et

al. v. Boc Group, et al., Appeal Docket No. 96-2704

Page

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Petitioners B. C. Rogers Processors, Inc., B. C. Rogers

Poultry, Inc., Choctaw Maid Farms, Inc., Forest Packing

Company, Inc., Marshall Durbin, Inc., Marshall Durbin Food

Corporation, Marshall Durbin Poultry, Inc., Marshall Durbin

of Tupelo, Inc., and Mohawk Packing Company respectfully

petition this Court to issue a writ of certiorari to review the

January 29, 1998 judgment of the United States Court of

Appeals for the Eleventh Circuit in favor of Respondents The

BOC Group, Inc., Liquid Air Corporation, and Liquid Carbonic

Industries Corporation, in State of Florida, et al. v. Liquid Air

Corporation, et al.

OPINIONS BELOW

The United States Court of Appeals for the Eleventh Circuit

affirmed the decision of the United States District Court for

the Middle District of Florida without opinion. This per curiam

affirmance, sub nom State of Florida v. Liquid Air, is reported

at 136 F.3d 139. The unpublished orders of the United States

District Court for the Middle District of Florida (Peter Hill Beer,

J., sitting by designation) and of the Judicial Panel on

Multidistrict Litigation are included in the appendix to this

petition, along with the order of the Eleventh Circuit denying

Petitioners’ Petition for Writ of Mandamus. The trial judge

entered no written opinions in connection with any of the issues

raised in the Petition. Excerpts from the transcript of the

February 6, 1996 hearing on Petitioner’s motion for suggestion

of remand are included in the appendix in lieu of a written

opinion.

STATEMENT OF JURISDICTION

The Court of Appeals entered judgment on January 29,

1998. The jurisdiction of this Court is invoked pursuant to 28

U.S.C. § 1254(1).

2

STATUTORY PROVISION AND RULE INVOLVED

The statutory provision involved in this petition is

28 U.S.C. § 1407(a) which provides in pertinent part:

(a) When civil actions involving one or more

common questions of fact are pending in different

districts, such actions may be transferred to any

district for coordinated or consolidated pretrial

proceedings. Such transfers shall be made by the

judicial panel on multidistrict litigation authorized

by this section upon its determination that transfers

for such proceedings will be for the convenience

of parties and witnesses and will promote the just

and efficient conduct of such actions. Each action

so transferred shall be remanded by the panel at or

before the conclusion of such pretrial proceedings |

to the district from which it was transferred unless

it shall have been previously terminated: Provided,

however, that the panel may separate any claim,

cross-claim, counter-claim, or third-party claim and

remand any of such claims before the remainder of

the action is remanded.

Rule 14(b) of the Rules of Procedure of the Judicial Panel

on Multidistrict Litigation, which provides:

(b) Each transferred action that has not been

terminated in the transferee district court shall be

remanded by the Panel to the transferor district for

trial, unless ordered transferred by the transferee

judge to the transferee or other district under 28

U.S.C.§ 1404(a) or 28 U.S.C. § 1406. In the event

that the transferee judge so transfers an action under :

28 U.S.C. § 1404(a) or 1406, no further action of

Sane oe

3

the Panel shall be necessary to authorize further

proceedings including trial. Actions that were

originally filed in the transferee district require no

action by the panel to be reassigned to another judge

in the transferee district at the conclusion of the

coordinated or consolidated pretrial proceedings

affecting these actions.

STATEMENT OF THE CASE

A. Introduction

This is an antitrust action, brought pursuant to Section 1

of the Sherman Act, 15 U.S.C. § 1, by users of bulk liquid

carbon dioxide (CO,). The Respondents are the major producers

of that product, BOC (which also does business under the name

“Airco”), Liquid Air (which at times did business under the

name “Cardox”) and Liquid Carbonic Corporation. Petitioners,

all of whom are end users of CO., alleged that these producers

conspired to allocate customers among themselves by

aggressively competing for sales to locations which were not

currently buying CO, from any of them, but refraining from

competition among themselves on the basis of price once one

of the defendants had secured the business of a CO, user. In

order to disguise the conspiracy, it is alleged that Respondents

developed almost identical price schedules, and directed their

front line sales people that they were only to bid a schedule

price to existing customers of the other defendants. Because the

schedule price was higher than the realistic market price, the

net result of the agreement was that each producer was able to

safely raise its prices to its existing customers without fear of

having the price undercut by another producer, so long as the

current price was less than the schedule price. This agreement,

it is alleged, was made at the highest levels of these companies

in 1968, and the Respondents continued to operate according

to the agreement at least through mid-1992.

4

For the sake of convenience, Petitioners B. C. Rogers

Processors, Inc., B. C. Rogers Poultry, Inc., Choctaw Maid

Farms, Inc., Forest Packing Company, Inc., Marshall Durbin,

Inc., Marshall Durbin Food Corporation, Marshall Durbin

Poultry, Inc., and Marshall Durbin of Tupelo, Inc., all of which

are poultry processors with plants located in the State of

Mississippi, will be referred to as the Mississippi Plaintiffs.

Mohawk Packing Company, a meat packing company with

plants located in the State of California, will be referred to as

the California Plaintiff.

B. Prior Proceedings In This Case

]. Factual Background

Numerous cases in which customer allocation and price

fixing claims were asserted against Respondents were filed in

district courts around the country beginning in approximately

April, 1992, including an action by the State of Florida, which

was filed in the Middle District of Florida. The various cases

were transferred to the United States District Court for the Middle

District of Florida by the Judicial Pane! on Multidistrict

Litigation. Tie Florida district court subsequently certified a

nationwide class of users of CO,. The Mississippi Plaintiffs

opted out of the class and filed an individual action in the United

States District Court for the Southern District of Mississippi in

September, 1994. The California Plaintiff, Mohawk Packing

Company, filed its individual suit in the Northern District of

California on July 21, 1993. The Mississippi and California

actions were transferred to the Middle District of Florida as tag-

along actions by order of the Judicial Panel pursuant to 28

U.S.C. § 1407(a). Transfer was ordered for consolidated or

coordinated pretrial proceedings only.

a Vi ct ecg

5

2. The Decision of the District Court

Petitioners seek review by this Court of the district court’s

decision to keep these cases in the Middle District of Florida for

trial, and the court of appeals’ subsequent affirmance of that decision.

Although no order transferring the actions to the Middle District

of Florida for all purposes was ever entered, the court set the cases

for consolidated trial in that district commencing on February 5,

1996. At the time the trial setting was made, there were five groups

of plaintiffs — the certified class of CO, users, and an assortment

of individual cases, including the Mississippi Plaintiffs, the

California Plaintiffs, the State of Florida, and a large group of

plaintiffs headed by Anheuser-Busch’. On the appointed day for

trial, Respondents announced that they had settled with the class,

the Anheuser-Busch group, and the State of Florida. Upon learning

that the Mississippi and California Plaintiffs had not yet settled,

the district judge announced his intention to remand those cases to

Mississippi and California for trial. (App. F, 12a-13a).

Following that announcement, counsel for BOC met with the

judge outside the presence of any attorneys representing

Petitioners. In that meeting, the district judge has admitted that

counsel for BOC convinced him

That a great amount of money was being paid in the

settlement, a huge amount of money had been

expended in connection with the litigation process,

and the one thing that the defendant required in terms

of the management of the matter at that point in time

was that it be — that it all be resolved.

1. In the transcript of the February 6, 1996 hearing which is

included in the Appendix to this Petition, the Anheuser Busch group of

opt-out plaintiffs is referred to as the Freeman plaintiffs, because they

were represented by the Chicago firm of Freeman, Freeman & Salzman.

6

There wasn’t any — there wasn’t even a

discussion about venue or anything else, it was

simply that it all be resolved, i.e., that this be the

forum, that this be the place of resolution of the

balance of the case. That was the entirety of their

contentions to me.

And I thought that that was okay under the

circumstances. My feeling was well, if I can bring

that to the process, okay, I will do it.

(App. F, 16a).

The district judge then announced his intention to keep

the remaining cases in the Middle District of Florida for trial.

Petitioners filed a motion for suggestion of remand, asking that

the district judge notify the Judicial Panel that pretrial

proceedings were completed and that the cases were ready to be

remanded. The district judge denied this motion, stating on the

record that his denial was based on the commitment he had

made to defense counsel to resolve all of the cases in Florida.

(App. F, 16a-17a & 19a-20a). Petitioners sought review of the

order denying their motion for suggestion of remand by Petition

for Writ of Mandamus to the United States Court of Appeals

for the Eleventh Circuit and by petitioning the Judicial Panel

on Multidistrict Litigation to remand the cases. The Eleventh

Circuit denied Plaintiffs’ petition, stating that the issues raised

could be reviewed on appeal, if necessary. (App. D, 7a-8a).

The Juaicial Panel on Multidistrict Litigation issued no response

to the petition for remand until after the jury had returned a

verdict against Petitioners, and then denied the petition as moot.

(App. B, 3a-4a).

The case went to trial on March 5, 1996. After two weeks

of trial, the jury returned a verdict for the defendants. Petitioners

7

filed a Motion for New Trial, again raising the issue of the trial

court’s authority to keep these cases in Florida for trial. (App.

G, 21a-22a). The trial court denied the motion, without written

opinion, by order dated April 30, 1996. (App. C, Sa-6a).

3. The Decision of the Eleventh Circuit

Petitioners filed a timely notice of appeal to the United

States Court of Appeals for the Eleventh Circuit, contendiag,

inter alia, that the district judge had erred in keeping the cases

for trial. By letter dated December 29, 1997, while the appeal

was pending, Petitioners informed the Eleventh Circuit of the

pendency before the United States Supreme Court of Lexecon,

Inc. v. Milberg Weiss Bershad Hynes & Lerach. Petitioners

requested that the Court of Appeals withhold its ruling on their

appeal until after this Court rendered its decision in Lexecon.

(App. H, 38a). The case was set for oral argument on January

15, 1998. During the course of that argument, the panel focused

entirely on the issue of the trial court’s refusal to remand and

whether that was not simply a venue issue. On January 29,

1998, the Court entered its one word affirmance, without any

explanation of why Petitioner’s appeal was without merit or of

why the Court would not wait for this Court’s opinion in

Lexecon . The judgment of the Eleventh Circuit was issued as

mandate on February 27, 1998. This Court handed down its

opinion in Lexecon on March 3, 1998. Petitioners did not seek

review of the panel’s January 29, 1998 decision or request

rehearing en banc because no opinion was issued and such

petitions are not favored under these circumstances, their being

no new issues. F.R.A.P. Rules 35 and 40.

8

REASONS FOR GRANTING THE WRIT

CERTIORARI SHOULD BE GRANTED PURSUANT

TO RULE 10 BECAUSE THE DECISION OF THE COURT

OF APPEALS ADDRESSES AN IMPORTANT FEDERAL

QUESTION IN A MANNER INCONSISTENT WITH A

RELEVANT DECISION OF THIS COURT.

In the instant action, the United States Court of Appeals

for the Eleventh Circuit has ruled in a manner that is

inconsistent with this Court’s opinion in Lexecon, Inc. v.

Milberg Weiss Bershad Hynes & Lerach, __ U.S. __, 118 S.

Ct. 956, __ L. Ed. 2d __ (1998). Specifically, the Court of

Appeals, after concentrating oral argument of this case on

whether the trial court had erred in retaining these cases for

trial, apparently ruled that there was no error in the trial court’s

refusal to even consider Plaintiff’s motion for suggestion of

remand. Unfortunately, the court of appeals did not consider

this issue worthy of an opinion. Petitioner’s cases were on

appeal at the time that Lexecon was under consideration by

this Court.

In Lexecon, the Supreme Court held that once a case had

been transferred to a district court for consolidated or

coordinated pretrial proceedings pursuant to 28 U.S.C.

§ 1407(a), as these cases were, the transferee court had no

authority or jurisdiction to simply keep the cases for trial. In

fact, the Court held that the section 1407(a) transferee court

could not even transfer the cases to itself pursuant to 28 U.S.C.

§ 1404(a), but had to comply with section 1407(a), which

mandates that

Each action so transferred shall be remanded by

the panel at or before the conclusion of such pretrial

proceedings to the district from which it was

Nye shies beh Tia edad Alia eed estan

9

transferred unless it shali have been previously

terminated.

This Court read this provision as imposing on the Panel

the “responsibility to remand, which bars recognizing any self-

assignment power in a transferee court and consequently entails

the invalidity of the Panel’s Rule 14(b),” which implied that

the trial court had such power. Lexecon, ___ U.S. __, 118 S. Ct.

956, 964, __ L. Ed. 2d __ (1998).

In the instant action, Petitioners timely raised the issue of

the district court’s authority to retain these cases for trial. Prior

to trial, Petitioners requested the trial judge to remand, sought

review of the denial of this motion by petition for writ of

mandamus in the Eleventh Circuit, and filed a petition before

the Judicial Panel on Multidistrict Litigation; all to no avail.

The district court never entered an order transferring the cases

for all purposes; and had no authority or jurisdiction to do so.

In fact, the district judge decided the issue of where the cases

would be tried based upon a commitment he made to the

Respondents in an attempt to help them with settlement

negotiations. (App. F, 16a-17a). Petitioners were not informed

until after the fact that this conference was to take place or that

the issue of where the cases would be tried would be discussed.

On February 6, 1996, Petitioners filed their motion for

suggestion of remand, before the cases had been called for trial,

and at a time when, in the district judge’s own words, it was

obvious that a continuance of some duration would be necessary

to allow the remaining plaintiffs to prepare to take over roles

that had been assigned to counsel for the class, for the State of

Florida and for the large group of opt-out plaintiffs. (App. F,

17a). In the motion for suggestion of remand, Petitioners argued

that the trial court did not have the authority to simply keep

these cases for trial, but had to notify the Judicial Panel that

pretrial proceedings were completed and the cases were ready

10

for remand. The district judge denied this motion, stating in

open court that the basis of his denial was his desire to satisfy

Respondents’ request that the entire matter be resolved there

and then. (App. F, 16a-17a). The judge never addressed the

issue whether he had the authority to simply order the cases to

trial in the Middle District of Florida. He stated no findings of

fact and no legal reasoning for his decision to retain the cases

for trial. He simply allowed Petitioners to make a record of

what had occurred the day before, stated that he had decided to

keep the cases in Florida to help with the settlement process,

and asked if there was anything he needed to sign to speed the

plaintiffs on their way to the Eleventh Circuit with their petition

for writ of mandamus. (App. F, 18a-19a). Regardless of the

reasoning, or lack thereof, behind the district court’s denial of

the motion, it is clear that he was attempting to exercise discretion

which this Court’s opinion in Lexecon makes clear that he did

not have. As this Court stated, “the mandatory ‘shall’ normally

creates an obligation impervious to judicial discretion.” Lexecon,

118 S. Ct. at 962.

Petitioners sought review of this decision by Petition for

Writ of Mandamus to the Eleventh Circuit. That Court denied

the Petition, stating that the issue could be addressed on direct

appeal if necessary. (App. D, 7a-8a). Following entry of

judgment against Petitioners, they filed a motion for new trial,

once again raising the issue of the trial court’s authority to order

the cases to trial in Florida. (App. G, 21a-22a). This motion

was denied without opinion. (App. C, 5a-6a). On appeal,

Petitioners asserted that the trial court had erred by retaining

the cases for trial in violation of section 1407(a) and by denying

them a fair hearing on their motion for suggestion of remand.

The Eleventh Circuit entered its order affirming the lower court’s

decision, without opinion. (App. A).

11

By the time this Court entered its opinion in Lexecon on

March 3, 1998, the time allowed for petitioning the Eleventh

Circuit for rehearing of its January 29, 1998 decision had

elapsed. In fact, the decision had been issued as mandate,

leaving the Eleventh Circuit arguably without jurisdiction to

entertain a petition for rehearing.

Petitioners have raised this issue five separate times before

three different judicial bodies. None of them has yet addressed

the issue in any fashion, other than to enter an order denying

the requested relief. The holding of this Court in Lexecon

directly supports the argument that Petitioners have made

repeatedly in the courts below.

Issuance of a writ of certiorari is appropriate to correct the

erroneous ruling of the Court of Appeals, which is in direct

conflict with this Court’s holding in Lexecon, Inc. v. Milberg

Weiss Bershad Hynes & Lerach. This Court should grant

certiorari in this case afd summarily reverse the judgment

entered against Petitioners by the United States District Court

for the Middle District of Florida and affirmed, without opinion,

by the United States Court of Appeals for the Eleventh Circuit.

In the alternative, this Court should remand this case to the

Eleventh Circuit, with instruction that it reconsider its ruling

in light of this Court’s opinion in Lexecon.

12

CONCLUSION

For the reasons stated herein, the Petition for Writ of

Certiorari should be granted.

Respectfully submitted,

ALEX A. ALSTON, JR.

Counsel of Record

RICHARD L. JONES

ALSTON, & JONES

121 North State Street

Post Office Drawer 1532

Jackson, Mississippi 39215-1532

(601) 948-6882

MELVYN L. SEGAL

JEFFREY M. FORSTER

FORSTER & SEGAL

160 West Santa Clara Street

Suite 1100

San Jose, California 95113

(408) 977-3139

STEPHEN M. MALONEY

Post Office Box 1415

Madison, Mississippi 39130-1415

(601) 898-0078

Attorneys for Petitioners

la

APPENDIX A — ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

FILED JANUARY 239, 1998

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 96-2704

D.C. Docket No. 92-MD-940-CIV-ORL-3L23

IN RE:

CARBON DIOXIDE INDUSTRY ANTITRUST LITIGATION,

STATE OF FLORIDA, ex rel., et al.,

Plaintiffs.

FOSTER POULTRY FARMS and MOHAWK PACKING

COMPANY, B.C. ROGERS PROCESSORS, INC., et al.,

Plaintiffs-Appellants,

versus

LIQUID AIR CORP., et al.

Defendants-Appellees.

Appeals from the United States District Court

for the Middle District of Florida

(January 29, 1998)

Before TJOFLAT and HULL, Circuit Judges, and KRAVITCH,

Senior Circuit Judge.

2a

Appendix A

PER CURIAM:

AFFIRMED. See 11th Cir. R. 36-1.1.'

“Costs taxed against plaintiffs-appellants.”

Entered: January 29, 1998

For the Court: Thomas K. Kahn, Clerk

By: s/ Matt Davidson

Deputy Clerk

ISSUED AS MANDATE: 2/27/98

1. 11th Cir. R. 36-1 provides:

When the court determines any of the following

circumstances exist:

(a) judgment of the district court is based on findings

of fact that are not clearly erroneous;

(b) the evidence in support of a jury verdict is

sufficient;

(c) the order of an administrative agency is

supported by substantial evidence on the record

as a whole;

(d) summary judgment, directed verdict, or

judgment on the pleadings is supported by the

record;

(e) judgment has been entered without a reversible

error of law; and an opinion would have no

precedential value, the judgment or order may

be affirmed or enforced without opinion.

3a

APPENDIX B — ORDER OF THE JUDICIAL PANEL

ON MULTIDISTRICT LITIGATION DENYING

MOTION AS MOOT FILED APRIL 15, 1996

DOCKET NO. 940

BEFORE THE JUDICIAL PANEL ON MULTIDISTRICT

LITIGATION

IN RE CARBON DIOXIDE INDUSTRY ANTITRUST

LITIGATION

B.C. Rogers Processing, Inc., et al. v. BOC Group, Inc., et

al., M.D. Florida, C.A. No. 6:93-965 (S.D. Mississippi,

C.A. No. 3:93-598)

BEFORE JOHN F. NANGLE, CHAIRMAN, ROBERT R.

MERHIGE, JR., WILLIAM B. ENRIGHT, CLARENCE A.

BRIMMER, JOHN F. GRADY, BAREFOOT SANDERS AND

LOUIS C. BECHTLE, JUDGES OF THE PANEL

ORDER DENYING MOTION AS MOOT

On February 15, 1995, plaintiffs in the above-captiond

action (Rogers) moved the Panel, pursuant to 28 U.S.C. § 1407,

for an order i) remanding Rogers from the Middle District of

Florida to the Southern District of Mississippi, and ii) staying

Rogers until thirty days after the Panel resolved the remand

motion. Trial of Rogers commenced in the Middle District of

Florida on March 5, 1996. On March 21, 1996, jury verdicts

were returned in favor of the defendants and judgment was

entered.

4a

Appendix B

ACCORDINGLY, IT IS ORDERED that the motion for

remand, pursuant to 28 U.S.C. §1407, be, and the same hereby

is, DENIED as MOOT.

FOR THE PANEL:

s/ John F. Nangle

John F. Nangle

- Chairman

Sa

APPENDIX C — ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE MIDDLE DISTRICT OF

FLORIDA, ORLANDO DIVIS!ON, FILED APRIL 30, 1996

M.D.L.

NO. 940

JUDGE PETER BEER

IN RE CARBON DIOXIDE

ANTITRUST LITIGATION

ORDER

Before the Court are the following motions filed by the

Mississippi and California Plaintiffs:

1) Motion for Judgment as a Matter of Law, or in the

Alternative for a New Trial,

2) Supplemental Motion for Judgment as a Matter of Law,

or in the Alternative for a New Trial,

3) Motion to Alter or Amend Judgment, and

4) Motion for Review of Clerk's Taxation of Costs.

The Court, after considering the briefs of record makes the

following rulings:

IT IS ORDERED that the Plaintiffs’ Motion for Judgment

as a Matter of Law or, in the Alternative for a New Trial is

hereby DENIED.

6a

Appendix C

The Plaintiffs’ Supplemental Motion for Judgment as a

Matter of Law or, in the Alternative for a New Trial is also

DENIED.

The Motion to Alter or Amend Judgment is DENIED

insofar as it seeks to amend the judgment by deleting that portion

of the judgment which awards defendants their costs. The Court

reserves ruling on the Motion for Review of Clerk’s Taxation

of Costs at this time.

New Orleans, Louisiana this 30th day of April, 1996.

s/ Peter Beer

Peter Beer

United States District Judge

7a

APPENDIX D — ORDER DENYING PETITION FOR

WRIT OF MANDAMUS OF THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT FILED FEBRUARY 23, 1996¢

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 96-2179

IN RE:

B.C. ROGERS PROCESSORS, INC., B.C. ROGERS

POULTRY, INC., McCARTY FARMS, INC., McCARTY

FOODS, INC., MARSHALL DURBIN, INC., ET AL.,

Petitioners.

On Petition for Writ of Mandamus to the United States

District Court for the Middle District of Florida

BEFORE: BLACK, CARNES and BARKETT, Circuit Judges.

BY THE COURT:

In this petition for writ of mandamus, petitioners ask us to

direct the district court to remand this case to the Southern

District of Mississippi and the Northern District of California

pursuant to 28 U.S.C. § 1407 (a). We deny the petition for writ

of mandamus. “Mandamus ... is an extraordinary remedy

reserved for extraordinary situations ...[,]” U.S. v. Coy, 19

F.3d 629 (11th Cir. 1994), and mandamus is not the appropriate

remedy here. The district court’s denial of petitioners’ request

for a remand can be appealed immediately after the trial along

with any other appealable issues in the event petitioners do not

8a

Appendix D

prevail on the merits. The stay previously entered shall remain

in effect until 10 days after the date of this order.

Accordingly, the petition for writ of mandamus is DENIED.

Q4

APPENDIX E — ORDER OF THE UNITED STATES

SUPREME COURT FOR THE MIDDLE DISTRICT OF

FLORIDA, ORLANDO DIVISION, ON MOTION FOR

SUGGESTION OF REMAND DATED FEBRUARY 6, 1996

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

92-MD-940-CIV-ORL-3L23

HONORABLE PETER HILL BEER

IN RE CARBON DIOXIDE

ANTITRUST LITIGATION

THIS DOCUMENT RELATES

TO ALL ACTIONS

ORDER ON MOTION FOR SUGGESTION OF REMAND,

OR, IN THE ALTERNATIVE, FOR TRANSFER

This matter came on for hearing on February 6, 1996, on

the Mississippi Individual Plaintiffs’ Motion for Suggestion of

Remand, or, In the Alternative, Transfer to the Southern District

of Mississippi, which was joined in and adopted by the

California plaintiffs to the extent they seek transfer to the

Northern District of California, and the Court, having heard

argument of counsel and being fully advised in the premises,

finds that said Motion should be DENIED. It is, therefore,

ORDERED AND ADJUDGED that said Motion is

DENIED.

DONE AND ORDERED this 6th day of February, 1996.

s/ Peter Beer

DISTRICT JUDGE PETER HILL BEER

10a

APPENDIX F — EXCERPTS OF HEARING BEFORE THE

UNITED STATES DISTRICT COURT FOR THE MIDDLE

DISTRICT OF FLORIDA, DATED FEBRUARY 6, 1996

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

MULTI DISTRICT LITIGATION #940

IN RE: CARBON DIOXIDE INDUSTRY

ANTITRUST LITIGATION

ORLANDO, FLORIDA

FEBRUARY 6, 1996

EXCERPTS OF HEARING

BEFORE THE HONORABLE PETER J. BEER

UNITED STATES DISTRICT COURT JUDGE

* * *

[9] * * *

THE COURT: Wait a minute. I had said if [10] you decided

to file a writ it should be done by the end of business today.

MR. ALLRED: Yes, your honor.

THE COURT: I certainly have not ordered anybody the

file anything.

MR. ALLRED: To use better language, your honor, you

gave use permission to file a writ and said if we were to it, do it

by the end of today, and so —

lla

Appendix F

THE COURT: Yes.

MR. ALLRED: It was our judgment we needed a definitive

ruling from your honor on these several motions and we would

like to have a transcript of this proceeding to send forward as

soon as practicable.

We do have a draft of the writ, but it is based upon the facts

and rulings of the court here, which is essentially the effect of

what was done yesterday, but not on the record.

THE COURT: Well, I don’t object to that at all. I think

that that may be a more orderly way to address it and that’s

okay with me.

So, why don’t you all, as the moving parties with respect to

your motions, just go ahead and make your motions, substantiate

them in what [11] ever way you feel is consistent —

* * *

[12] * * *

I would like to say to the court that we have several matters

before the court for the record.

* * *

We have a motion for suggestion of remand, or in the

alternative, transfer to the Southern District of Mississippi and

a very short memorandum on that.

We have an objection to jurisdiction and venue in this case.

12a

Appendix F

* * *

We have a motion to reconsider the court’s so-called

commitment and ruling on the writ transfer of the Mississippi

plaintiffs to the cases to the Southern District of Mississippi.

* * *

[13] * * *

Secondly, or lastly, your honor, we would move the court

if this is not cumulative to our other motions for transfer of this

case pursuant to Twenty Eight U.S.C. Fourteen Zero Four A,

to the Southern District of Mississippi.

* * *

[20] *x* * *

Now if the court please, the other sector of this matter is

what transpired yesterday.

We, of course, have been contending from the get go, and

we continued to contend yesterday, and we continue to contend

today, that we want to be in Mississippi.

I recall, your honor, the first thing that happened as I was

standing here, and your honor was [21] speaking to Mr.

Wittmann and others, and I believe your honor had inquired of

someone, whether the settlement that was in prospect with Mr.

Freeman, and the remaining defendant would dispose of the

whole case, and Mr. Wittmann said something about well, it

would except for the Allred Group and California. Your honor

said that won’t be a problem, I will send them back to

Mississippi.

13a

Appendix F

Later that morning the deputy came into the courtroom

and informed us that your honor would definitely do that rather

than making it preliminary indication.

* * *

Later the deputy came out and said that is now definite, the

court sent me out here to tell you all that rulings about going to

Mississippi are going to be held firm.

* * *

Now, from what we learned after going into [22] chambers

when we asked your honor later the defendants came in and

apparently confected a settlement between Mr. Freeman and his

plaintiffs, and one of the defendants, or all of them, I don’t

know who was cooperating in it at this moment, and they asked

your honor to approve a settlement between Freeman that was

acceptable to Freeman, and therefore advantage to Freeman,

and therefore in his clients best interest, based upon a

commitment that you would reverse your ruling that you had

announced in this court upon which we relied.

THE COURT: I think you have given a little bit more of a

formal stamp then is really the case, but there’s isn’t any doubt

the correctness of your statement that I had indeed said essentially

what you have quoted, which is that I would manage that aspect

of the matter in the — basically the way that you have just

described, so the oniy thing that I think the court ought to

know and the record ought to know is that this never was

formalized in anyway.

l4a

Appendix F

On the other hand, I did feel an obligation to ask the

courtroom deputy to pass that word back to you pretty much

the way you have just described it.

[23] Now, I am not a devious persons, that was not with

any malice of forethought or calculation or waiver, it was an

effort to keep everybody current with where I was thinking in

terms of the overall management of what I guess is the most

complicated set of settlements that I have run into in the time I

have been around, so your definition of what transpired is

entirely accurate.

The only thing that isn’t perhaps totally accurate, as far as I

am concerned, is the formal significance that you give it when

there wasn’t any formal significance. It was simply an effort on

my part, through A, the most helpful person that I have had

working with me in this matter, that the clerk of court, to keep

you all posted about what was going on in terms of my

management of it, didn’t even occur to me that it had any affect

in terms of other factors, but simply that you all should know

what I was thinking.

When the matter was brought to my attention in terms of

the conditional acceptance of the settlement, my feeling was

well, okay, you haven’t been able to bring much to the actual

negotiations because they are really over your head, I am saying

to myself, but this is something that [24] perhaps you can do to

move the matter to a conclusion as far as this situation is

concerned.

To tell you the truth, I wasn’t even thinking in terms of

what was later, the impact that you all feel was visited upon

you, and I can understand that.

15a

Appendix F

As I told you yesterday, given the whole scenario, I would

do the same thing again, but I understand your frustration a

good deal better then I did when I first was trying to move us

along towards a resolution of the whole case.

So, there’s no fault finding with respect to you accuracy in

reporting the event.

The only thing I think is perhaps necessary to clarify is

that I didn’t perceive it then nor now to be some sort of formal

ruling. It was a signal to you all where I though I was going to

be heading with this.

(25)* * *

The facts, though, are that while your honor was in the

frame of mind and as innocent of ill motive, as you have said, I

don’t believe that same can be said of the defendants who entered

into this.

If the court please, they knew all there was to know about

the case and about the posture of this settlement, while your

honor has indicated that you did not.

In that posture, if the court please, they came into that room

and traded Mr. Freeman a lay down on this, on our going back

to Mississippi, which they have been actually told was of

tremendous benefit to us and we valued it.

* ~ «

l6a

Appendix F

[26] * oa *

. . . Also, if the court please ,that it was a deal in this posture,

there were two parties before your honor asking for a settlement,

the Freeman opt-out plaintiffs and one of the defendants.

The defendants said we will pay the money, which Freeman

contends is in his favor, beneficial to him, if you, your honor,

will take something away that you have preliminarily indicated

under the circumstances that you have described to the [27]

Mississippi plaintiffs.

THE COURT: No, that was not the context. And it’s

important for you to know the context.

The defense counsel never even went into taking something

away.

The whole discussion was predicated on an observation

which I found to be perfectly acceptable, that a great amount of

money was being paid in the settlement, a huge amount of

money had been expended in connection with the litigation

process, and the one thing that the defendant required in terms

of the management of the matter at that point in time was that it

be —— that it all be resolved.

There wasn’t any — there wasn’t even a discussion about

venue or anything else, it was simply that it all be resolved,

i.e., that this be the forum, that this be the place of resolution of

the balance of the case. That was the entirety of their contentions

to me.

And I thought that that was okay under the circumstances.

My feeling was well, if I can bring that to the process, okay, I

will do it.

17a

Appendix F

It did occur to me that even at that moment in time, and I

discussed it even then with [28] the clerk of court, it would

probably require some delay.

* * *

THE COURT: I never even at the sort of high water mark

of my improprieties, if indeed they were that, had the notion

that you would be thrust into tria] at one thirty yesterday

afternoon.

It was then and stil! is my feeling, as clerk, and I discussed

this morning, the obvious [29] necessity for some time to be

available to you.

MR. ALLRED: Thank you. The point being in making

that requirement of the settlement the defendants did ask you

honor for somewhat of a commitment, I believe that was words

your honor used, we would be put to trial here which was

contrary to the preliminary indication you asked the clerk to

announce to us earlier.

THE COURT: Actually it was not — I didn’t think the

emphasis was as much quote here unquote, as it was resolved

in these ~roceedings; that they simply could not willingly

participat’ .n a whole new set of lawsuits.

* * *

{37} i a

THE COURT: Well, you know, I have to confess my

ignorance about the process in terms of what I need to sign off

on.

18a

Appendix F

Is there anything that you need from me before it goes?

MR. ALLRED: I need orders on all these motions, and I

need your honor’s indulgence, at least to let me see if I could

talk the reporter into giving a daily transcript of this hearing.

THE COURT: Well, again that’s something I have to leave

up to you and him. But okay, well, I will just kind of consistent

with your request, I [38] will just say you got to get it all done

before the close of business tomorrow.

* * *

[39] * * *

MR. SEIGEL: Judge, for the record, Mel [40] Segal on

behalf of the California Plaintiffs.

And basically I adopt Mr. Allred’s presentation in this

matter.

—

Of course, as your honor can see, we have already joined

all their motions with the exception of the one motion regarding

Mr. Freeman’s settlement.

[58] ik an

Now, as far as the writ, the application to multi district

panel, eic., that’s really something that I don’t think I have

much control over or say about.

19a

Appendix F

Certainly this record now contains every bit of information

that either the Circuit Court of Appeal or the panel on multi-

district litigation would want from me, because the exchange

that in Mr. Allred and I have had essentially describes that, and

I don’t think it needs to be further enlarged upon.

I will say one other thing about the — let me see if that

takes care of the actual existent motions.

MR. ALLRED: For the record, may I ask the court for a

specific ruling on these motions, since they will go up.

THE COURT: Yes. I will grant the motion for a

continuance and reset the case for trial in this court at nine a.m.

on Tuesday, February 20.

I will, at this time, deny the plaintiff’s objection to

jurisdiction and venue, for the reasons already stated.

I will deny the motion to set aside the [59] preliminary

settlement agreement.

I will deny the motion for remand, or in the alternative,

transfer to the Southern District of Mississippi.

And the same with respect to the — what is the Middle

District of — Northern District of California.

MR. SEIGEL: Northern District of California.

THE COURT: I think that covers it. Anything else?

MR. ALLRED: There was one more. It was the motion to

reconsider court’s commitment and ruling on the retransfer.

20a

Appendix_F

THE COURT: To the extent that it is necessary, the court

will deny that motion simply to complete the record, for the

reasons that have already been stated.

* * *

2la

APPENDIX G — MOTION FOR JUDGEMENT OF THE

UNITED STATES DISTRICT COURT FOR THE MIDDLE

DISTRICT OF FLORIDA, ORLANDO DIVISION

FILED APRIL 4, 1996

IN THE UNITED STATES DISTRICT COURT -

FOR THE MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

92-MDL-940

HONORABLE PETER HILL BEER

IN RE CARBON DIOXIDE ANTITRUST LITIGATION

THIS DOCUMENT RELATES TO ALL ACTIONS

MOTION FOR JUDGMENT AS A MATTER OF LAW,

OR IN THE ALTERNATIVE FOR A NEW TRIAL

The Mississippi and California Plaintiffs move the Court,

pursuant to Rules 50 and 59 of the Federal Rules of Civil

Procedure, for judgment as a matter of law, or in the alternative,

for a new trial. As grounds for this motion, Plaintiffs would

show:

1. The Court was without authority to hear this case, in

that:

a. No order was ever entered transferring this case to the

. Middle District of Florida for any purpose other than pre-trial

proceedings.

b. No motion to transfer the action to the Middle District

of Florida for all purposes was ever filed, nor was any

consideration given to the propriety of such a transfer.

22a

Appendix G

c. For the reasons stated in Plaintiffs’ various motions

objecting to jurisdiction and venue.

2. The Court erred in denying Plaintiffs’ Motion for

Suggestion of Remand or for Transfer, in the following respects:

a. The Court has acknowledged facts which establish that

there was an improper ex parte communication between

counsel for BOC and the Court, which resulted in the

Court’s making a “commitment” to resolve the transfer or

remand issue in favor of Defendants and keep the cases in

Florida;

b. The Court summarily denied Plaintiffs’ motion to

remand or transfer, without giving any consideration to

the appropriate factors; and

c. For the reasons stated in Plaintiffs’ Motion.

3. The Court erred in denying Plaintiffs, Motion for

Recusal by failing to give any consideration to the appearance

of partiality which followed from the Court’s meeting with

counsel for BOC ex parte and committing to keep the cases in

Florida for trial. The Court’s comments in ruling on the Motion

for Recusal make it clear that the Court focused on whether he

actually felt any bias or partiality, to the exclusion of any

consideration of whether the appearance of partiality was

present. Plaintiffs incorporate the grounds stated in Plaintiffs’

Motion.

4. The Court erred in denying Plaintiffs’ Motion for a

Continuance, in that:

23a

Appendix G

a. The Court pushed Plaintiffs to trial without allowing

the Judicial Panel On Multidisirict Litigation to rule in

Plaintiffs’ pending motion for remand;

b. Plaintiffs were denied adequate time to obtain and

schedule the presence of witnesses:

c. Plaintiffs were denied adequate time to make the

adjustment from being prepared to present the testimony

of only three witnesses to being prepared to put on proof

of a nationwide conspiracy that spanned 25 years; and

d. For the reasons stated in Plaintiffs’ Motion.

5. The Court erred in its instructions to the jury, in the

following respects:

a. The Court refused to give requested pretrial instructions,

leaving the jury with no guidance from the Court on what

to look for in the evidence;

b. The Court’s instructions to the jury at the close of the

case were erroneous, misleading and unfairly stacked in

favor of the Defendants, in that the instructions:

(i) Did not instruct the jury on the meaning of the

terms “agreement,” “price-fixing” or “customer

allocation,” all of which have special meaning under

the antitrust laws, leaving the jury to resolve the case

based upon a layman’s understanding of the meaning

of those terms;

(ii) The Court’s failure to define the terms “agreement”’

and “price-fixing” was exacerbated by the Court’s

24a

Appendix G

statements to the venire during voir dire, to wit: that

the plaintiffs contended that “the Defendants in the

came have gotten together to set prices of liquid carbon

dioxide;” and that the plaintiffs had the burden of

proving that the defendants entered into an

“arrangement to fix the price, and keep it fixed among

themselves with respect to this product,” and that these

statements told the jury that Plaintiffs had to prove

that the prices were fixed in the sense that they were

set at a certain level by agreement and kept there by

agreement, which is neither an accurate statement of

the law nor an accurate statement of the contentions

of Plaintiffs; and

(iii) The erroneous impression created by the Court’s

comments preceding voir dire could have been

eliminated by the Court’s giving Instructions P-1 and

P-2;

c. Told the jury that certain actions proven to have been

taken by the defendants were not illegal, without also

instructing the jury that while those actions were not in

themselves illegal, they could be taken by the jury as

circumstantial evidence that Defendants had entered into

an illegal agreement;

d. Improperly instructed the jury as to the burden of proof

in that the jurors were told that each Plaintiff had to prove

every element of its case against each Defendant, and the

possibility of confusion from this instruction was greatly

enhanced by the Court’s Special Interrogatories, which

asked the jury to determine whether McCarty had proven

that Airco engaged in a conspiracy to fix prices and/or

25a

Appendix G

allocate customers, while the jurors could very well have

believed that they could find for the plaintiffs only if they

felt that the evidence adduced by a single plaintiff was

sufficient to prove a particular defendant’s participation in

a conspiracy.

6. The Court erred in submitting the case to the jury on the

special interrogatories proposed by Defendants, and in refusing

to submit the case on the special! interrogatories prepared by

Plaintiffs, in that:

a. The interrogatory used by the Court was unduly

complicated and misleading, in that it required the jury to

find that each individual Plaintiff had proven each element

of its case against each individual Defendant; and

b. The interrogatory proposed by Plaintiffs would have

asked the jury simply whether the existence of a conspiracy

had been proven; whether each Defendant had been shown

to have participated in that conspiracy; and whether each

Plaintiff had shown injury caused by the operation of the

conspiracy.

7. The Court denied Plaintiffs their rights under the Due

Process Clause, to fully contest the issues and abused its

discretion by:

a. Arbitrarily limiting Plaintiffs to five days to put on their

case, which resulted in Plaintiffs’ being required to cut some

witnesses entirely, resulting in the lose of their testimony

and a limitation of Plaintiffs’ ability to get documents into

evidence, while absent such a time limitation, Plaintiffs

could have called all of the witnesses for whom witness

26a

Appendix G

statements were filed by Plaintiffs, which statements are of

record, and who were also listed in the Pretrial Order, which

is of record;

b. Refusing to modify the time limitation ruling when it

became apparent that Plaintiffs had not been able to put on

a complete case, despite Plaintiffs’ exercise of all due

diligence to meet the Courts’ arbitrarily imposed deadline;

c. Refusing to allow Plaintiffs to present testimony in

keeping with the various proffers made, as shown in Exhibit

A;

d. Ruling that Plaintiffs’ witnesses could not testify to

anything other than what the Court considered to be facts;

e. Applying the rules of evidence strictly against Plaintiffs,

but very leniently as to Defendants:

(i) Prior to trial, in response to Defendants Motion in

Limine regarding the testimony of Dr. Charles Dennis,

the Court ruled that Dr. Dennis would not be ailowed

to testify based on what he had read in documents

produced by Defendants unless every document he

purported to rely upon was already in evidence;

(ii) During trial, the Court allowed Defendants to put

on the testimony of Kent Masters regarding accounts

lost to or gained from the other defendants, even

though his testimony was based on a review of

documents which were not in evidence, and which

were not designated as exhibits in the pretrial order;

while in fact, many of the documents on which he

27a

Appendix G

relied were the business records of companies other

than his employer, including such companies as

Coca-Cola Enterprises and Anheuser Busch;

(iii) During trial, the Court also allowed Carol Gorski

to testify for Defendant Liquid Air Corporation that

Liquid Air had lost certain accounts to other

Defendants and taken other accounts from other

Defendants, when it was clear that her testimony was

based on a review of documents not in evidence, rather

than on her own personal knowledge;

(iv) The Court repeatedly, and often without any

objection from Defendants, cut off any answer from

Plaintiffs’ witnesses which involved any sort or mental

impression, interpretation or explanation, and refused

to allow Plaintiffs to cross-examine Defendants’

witnesses as to the meaning of evidence or events;

(v) The Court applied a strict and very narrow

interpretation of Plaintiffs’ witness statements and a

very broad and liberal interpretation of Defendants’

witness statements in determining whether testimony

offered at trial should be excluded on the ground that

it was not covered in the witness statements;

(vi) The Court cut off the testimony of Plaintiffs’

witnesses and directed them that they could not give

information about policies, procedures, etc. followed

by the Defendants, unless they could give specific

instances, with dates, and all of the particular; but

allowed Defendants witnesses to testify to pure hearsay,

so long as they first testified that they had personal

28a

Appendix G

knowledge of what they were about to say, even

though their testimony clearly showed that they did

not know the legal meaning of the term personal

knowledge and the information they were conveying

was Clearly hearsay;

(vii) The Court applied an overly broad view of what

constituted leading questions to Plaintiffs’ direct

examinations, but allowed Defendants almost free rein

to lead their witnesses;

(viii) The Court went beyond what in required by

the Rules of Evidence in restricting Plaintiffs’ redirect

examination; and

(ix) Examples of the types of rulings listed above are

contained in Exhibit B.

8. The Court erred in regard to rulings on the admissibility

of documentary evidence, as follows

a. The Court refused to admit business records produced

by Defendants unless there was a witness on the stand who

admitted familiarity with the document, even though there

was no objection to the authenticity of the document and

the documents contained admissions of a party opponent

and were, therefore, not hearsay;

b. The Court ruled that Plaintiffs could not introduce any

documents through Defendants’ witnesses on cross-

examination, when the Court was of the opinion that the

evidence was something that should have been introduced

in Plaintiffs’ case in chief, even though the Court was well

—e aes

29a

Appendix G

aware that Plaintiffs had been subject to an arbitrary time

limitation in presenting their case in chief;

c. The Court allowed Defendants’ witnesses to repeatedly

deny any knowledge of any conspiracy to fix prices or

allocate customers, and to repeatedly deny that any

allocation of customers was discussed at the Compressed

Gas Association meetings, but would not allow Plaintiffs

to question those witnesses about, or otherwise introduce

any evidence concerning, the fact that Canadian subsidiaries

of these same companies had pleaded guilty to conspiring

to fix prices and allocate customers, and had admitted that

the conspiracy was set up during CGA meetings in the

United States;

d. The Court allowed Defendants to make repeated

references to competition that occurred in 1992, but refused

to allow Plaintiffs to introduce evidence regarding the

Canadian guilty pleas and the filing of the class action

complaint which the jury could well have believed

explained all of the competitive acts which occurred in

1992;

e. The Court allowed Defendants to cross-examine

Plaintiffs’ witnesses concerning their not having brought

the allegations of conspiracy to anyone’s attention earlier,

and to argue that point to the jury in closing, without

allowing testimony concerning the witnesses having been

granted immunity from prosecution;

f. The Court erred in admitting over Plaintiffs’ objections

the following exhibits: D-7; D-241; D-242; D243; D-244;

D-245; D-651; D-905; D-906; D-908; & D-909; and

30a

Appendix G

g. The Court erred in refusing to admit the following

Plaintiffs’ exhibits; P-6; P-7; P-8; P-9; P-12; P-13; P15;

P-17; P-18; P-22; P-24; P-27; P-29; P-30; P-31; P-32;

P-33; P-34; P-35; P-39; P-45 through P-54; P-66; P-74;

P-75; P-111; P-149; P-151 through P-163; P-166; P-175;

P176; P-189; P-192; P-194; P-198 through P-201; P-210

through P-231; P-265 through P-274; P-301 through

P-308; P-381; P-383; P-384; P-391; P-394; P-395; P-397.

9. The Court’s constant comments on the testimony and

documentary evidence during the trial, as well as hostile and

derogatory remarks directed at Plaintiffs’ counsel poisoned the

jury against Plaintiffs and denied Plaintiffs a fair trial, and

examples of such conduct by the Court are attached as

cumulative Exhibit C to this motion, an follows:

a. Although the Court was aware that Plaintiffs had alleged

and were attempting to prove the existence of a nation-wide

conspiracy entered into by the only three companies engaged

in marketing CO2 on a nation-wide basis, and the Court

wan, therefore, required to allow evidence of actions taken

by the Defendants which tended to prove the existence of

a conspiracy, regardless of where those actions occurred,

the Court repeatedly interrupted Plaintiffs’ presentation of

evidence to state in the presence of the jury that evidence

of what went on in areas outside Mississippi and California

was not relevant and that the jury did not want to hear any

of the details of those incidents;

b. The Court went far beyond what was required to rule

on an objection and control the flow of evidence and made

repeated comments that appeared to be intended to denigrate

Plaintiffs’ counsel and Plaintiffs’ case before the jury;

3la

Appendix G

c. The Court repeatedly and gratuitously offered its opinion

that Plaintiffs had not proven anything with regard to the

existence of a conspiracy;

d. The Court repeatedly, in the presence of the jury,

criticized the order in which Plaintiffs’ counsel presented

evidence, even though the Court was well aware that he

had forced Plaintiffs to trial without adequate time to line

up witnesses, and even though the Court had denied a

motion for continuance which was based upon the precise

ground that the witnesses who knew the most about the

conspiracy would not be available to testify until near the

end of Plaintiffs’ case if no continuance were granted;

e. The Court’s comments in making rulings unnecessarily

wasted much of the precious little time the Court had

arbitrarily allotted Plaintiffs to put on their case; and

f. There were many other instances of abuse of the judicial

prerogative to comment and guide the course of trial which

are not specifically catalogued in the foregoing list.

10. The Court’s obvious bias against Plaintiffs and

Plaintiffs’ counsel during the course of the trial affected the

Court’s evidentiary rulings and must have had an impact on the

jury’s view of Plaintiffs, Plaintiffs counsel and their case.

| 11. The Court erred in granting Defendants’ motions in

limine as to expert testimony regarding competition in the CO2

marketplace in Mississippi; any reference to the Canadian guilty

pleas, consent decree, assertion of the Fifth Amendment privilege

against self-incrimination by defense witnesses during discovery,

and the immunity from prosecution granted to Plaintiffs’

witnesses.

32a

Appendix G

12. Court abused its discretion in refusing to allow

Plaintiffs to use summary charts in closing argument.

13. The Court’s denial of a continuance, granting of

Defendants’ motions in limine, rulings on admissibility of

evidence, unwarranted and abusive comments concerning

Plaintiffs’ counsel and their case, unwarranted and biased

comments about the evidence, instructions to the jury, and jury

interrogatory, all as discussed above, combined to deny Plaintiffs

the right to a fair trial.

14. The Court erred in limiting the direct examination of

Plaintiffs’ witnesses on the alleged basis of the leading nature

of questions and/or questions without a predicate to show

competence and relevance.

15. The Court erred in allowing the Defendants, in a

directly contradictory and discriminatory way, to elicit direct

testimony by leading questions, without any predicate. In effect,

the rules were applied in a strict and illiberal way to the Plaintiffs

to preclude Plaintiffs’ evidence improperly and were not applied

to the Defendants at all or were applied in a liberal and

permissive way. This tainted the evidence and the jury.

16. The Court erred in making hostile, angry, unjustified

and unfounded comments upon the evidence, the witnesses,

the testimony of the witnesses, counsel, the conduct of counsel

and related matters so as to severely prejudice Plaintiffs,

Plaintiffs’ witnesses and Plaintiffs’ counsel before the jury.

17. The Court erred in excluding the testimony of

Plaintiffs’ witnesses McNamee, Welsh, and other Plaintiffs’

witnesses about the habits, customs, practices, “ground rules”,

eer oe

ORR EY ORR Ra ga al) OO RE a

33a

Appendix G

“gentlemen’s agreements”, and other prior customs, acts and

practices of the Defendants, all of which were admissible.

18. The Court erred in refusing to admit into evidence

Defendants’ business records which were stipulated to be

authentic and which contained relevant evidence, much of which

was relevant as admissions against interest.

19. The Court erred in refusing to allow Plaintiffs to adduce

relevant evidence on Defendants’ case in chief and/or during

cross-examination.

20. The Court erred in refusing to allow Plaintiffs to offer

evidentiary documents on Defendants’ case in chief and/or

during cross-examination.

21. The Court erred in refusing all of Plaintiffs’ requested

jury instructions or requests to charge the jury.

22. The Court erred in its charge to the jury in that the

Court gave jury instructions which were abstract and failed to

furnish any guide to the jury.

23. The verdict of the jury and the judgment of the Court

predicated thereon are against the overwhelming weight of the

evidence.

24. There is no evidence, or insufficient evidence to

amount to substantial evidence, to support the verdict of the

jury and the judgment predicated thereon.

25. The findings of the jury in response to the special

interrogatories to the jury are against the overwhelming weight

of the evidence.

34a

Appendix G

26. According to the uncontradicted evidence by which

the Defendants are bound, the Plaintiffs are entitled to a verdict

and judgment as a matter of law.

27. Plaintiffs assign the error of the Court in failure to

grant the Plaintiffs’ requests for a directed verdict or peremptory

instruction. Plaintiffs hereby renew such requested peremptory

instruction.

28. Plaintiffs assign as error the findings and verdict of

the jury in that there is no evidence, or insufficient evidence, to

support a verdict for Defendants.

29. The verdict of the jury, and the Judgment of the Court

predicated thereupon, are not supported by evidence or

substantial evidence.

30. The verdict of the jury, and the judgment predicated

thereon, are against the overwhelming weight of the credible

evidence.

31. Plaintiffs assign as error that the jury erred as a matter

of law in failing to find that the Defendants acted in concert or

conspiracy and that such conspiracy proximately contributed

to the cause of Plaintiffs’ damages. The jury’s finding and

verdict, and the judgment predicated thereon, are not supported

by the evidence or the substantial evidence. The Plaintiffs assign

as error that the jury erred as a matter of law in its answer to

special interrogatories that Defendants did not form a concert

or conspiracy as against the Plaintiffs.

32. The uncontradicted evidence establishes that

Defendants committed a conspiracy to fix prices and/or allocate

customers as against the Plaintiffs.

ee ee eee ee

:

4

}

}

35a

Appendix G

33. Plaintiffs renew all of the several objections of the

Plaintiffs made during the Defendants’ case in chief and during

the Plaintiffs’ case in chief to evidence adduced by the

Defendants and assign the error of the Court in overruling and

denying all of said objections.

34. Plaintiffs assign as error the several objections of the

Defendants sustained by the Court and the error of the Court in

excluding evidence offered by the Plaintiffs on the Plaintiffs’

case-in-chief and on the Defendants’ case-in-chief upon

objection of the Defendants.

35. Whether enumerated herein or not Plaintiffs assign the

error of the Court in overruling and denying the several

objections and motions of the Plaintiffs filed in advance of trial

after the collusive settlement between BOC Group and the

Freeman “opt-out” Plaintiffs was announced.

Respectfully submitted this 4th day April, 1996.

By: s/ Michael S. Allred

Michael S. Allred, Their Attorneys

Stephen M. Maloney

ALLRED & DONALDSON

Post Office Box 3828

101 W. Capitol Street

101 Capitol Centre, Suite 300

Jackson, Mississippi 39207-3828

Telephone: 601/ 948-2086

Facsimile: 601/ 948-2175

36a

Appendix G

Kenneth A. Rutherford

Richard L. Jones

ALSTON, RUTHERFORD

& VAN SLYKE

121 North State Street

Post Office Drawer 1532

Phone: (601) 948-6882

Fax: (601) 948-6902

ATTORNEYS FOR PLAINTIFFS IN THE

B. C. ROGERS CASE

37a

APPENDIX H — LETTER FROM KENNETH A.

RUTHERFORD TO OFFICE OF THE CLERK RE: B.C.

ROGERS PROCESSORS, ET AL. V. BOC GROUP, ET AL..,

APPEAL DOCKET NO. 96-2704

ALSTON *« RUTHERFORD

& VAN SLYKE

A Professional Limited Liability Company

ATTORNEYS AT LAW

121 NORTH STATE STREET

POST OFFICE DRAWER 1532

JACKSON, MISSISSIPPI 39215-1532

KENNETH A. RUTHERFORD TELEPHONE (601) 948-6882

DIRECT NUMBER FACSIMILE (601) 948-6962

(601) 973-7434

December 31, 1997

Office of the Clerk

United States Court of Appeals

for the Eleventh Circuit

56 Forsyth Street, N.W.

Atlanta, GA 30303

Re: B.C. Rogers Processors, et al. v. BOC Group, et al.,

Appeal Docket No. 96-2704

Dear Sir or Madam:

This case has been set for oral argument on January 15,

1998. In November 1997 the United States Supreme Court

heard oral argument in a case styled /n re American Continental

Corporation/Lincoln Savings & Loan Securities Litigation;

Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 102

38a

Appendix H

F.3d 1524 (9th Cir. 1996), cert. granted, __ U.S. __, 117 S.Ct.

1818, 137 L.ed. 2d 1026 (1997).

One of the issues addressed by this case is whether or not a

transferee judge for pretrial purposes in multidistrict litigation

has jurisdiction to transfer the case to himself for trial. A decision

that the transferee court lacked jurisdiction to try the case would

be controlling in this case.

Another issue in the case is whether the appellant in that

case waived its right to request a remand for trial because it did

not file a motion for remand with the Multidistrict Panel. The

Appellants in this case did file a Motion for Remand with the

Multidistrict Panel. (Dkt. #1000). This Motion was not ruled

upon by the Panel until after the trial was concluded, when it

was denied as moot by the Panel.

Sincerely yours,

s/ Kenneth A. Rutherford

Kenneth A. Rutherford

Office of the Clerk

United States Court of Appeals

for the Eleventh Circuit

56 Forsyth Street, N.W.

Atlanta, GA 30303

December 31, 1997

KAR/s]j

cc: William G. Schopf, Jr., Esq.

John E. Burke, Esq.

Michael J. Abernathy, Esq.

Melvyn L. Segal, Esq.