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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1998
- **Citation:** 524 U.S. 947

## Text

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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1394%3A1. Public record. Not legal advice.