Appendix — American Pipe & Constr. Co. v. Utah

viii.

Affidavit in Support of Motion to Intervene—

David. B. Brinton

Affidavit in Support of Motion to Interveno—

Randall J. Heaps

405

406

Affidavit in Support of on to Intervene—Don

C.. Pierce 407

408

409

Affidavit in Support of Motion to Intervene—Ed-

ward H. Southwick

ARSE SRR ei TID Se SE Ne

Bracken. Lee

Affidavit in Support of Motion to Intervene—

Arnold Anderson 410

Affidavit in Support of Motion to Intervene—

Henry Beckstead 411

Affidavit in Support of Motion to Intervene—

Jack A. Richards 412

Affidavit in Support of Motion to Intervenc—

David B, Brinton 413

Affidavit in Support of Motion to Intervene—

Doren B. Boyce 414

- Affidavit in Support of Motion to Intervene—

Richard A. Chambers 415

Affidavit in Support of Motion to Intervene—

Jack L. Crellin 416

Kilsiaans Wi tapealt oh ectbali ts Wlgreeba-bid

F. Wilson 417

Affidavit in Support of Motion to Intervene—

Gordon B. Christenson 418

Affidavit in Support of Motion to Intervene—

Glenn W. Adams 419

ix.

Page

‘Affidavit in Support of Motion to Intervene—

Glenn A. Wright 420

‘Affidavit in Support of Motion to Intervene—

Buell Bennett | 421

Affidavit in Support of Motion to Intervene—

J. C. Linford 422

Affidavit in Support of Motion to Intervene—

T. John Labrum 423

Affidavit in Support of Motion to Intervene—

Roscoe W. Godfrey 424

Affidavit in Support of Motion to Intervene—

William C. Hague 425

Affidavit in Support. of Motion to Intervene—

John Jorgensen 427

Affidavit in Support of Motion to Intervene—

Walter W. Brock 428

Request for Admission. Dated: January 22, 1970... 429

Points and Authorities of Defendants in Opposi-

tion to Motions to Intervene and to Amend ...... 435

Affidavit of Oliver F. Green, Jr., in Opposition

to Motion to Intervene as Plaintiffs or in the

Alternative, to Amend the Complaint to Add

Additional Parties 464

Affidavit of Haldor T. Benson 468

Supplemental Memorandum of Utah Concrete

Pipe Company in Opposition to Motions to

Intervene and to Amend 475

Affidavit of Amos Clements 478

Affidavit of Dominic B. King 480

Decision on Motions to Intervene, Amend, Etc.

dated March 26, 1970 482

>

Intervenors’ Amended Complaint [Proposed]

Findings of Fact, Conclusions of Law, and Order

on Motions to Intervene and to Amend ............ 505

Notice of Appeal dated July 31, 1970 .................. 509

Motion to Extend Time for Appeal 511

Notice of Appeal dated August 25, 1970 ................ 520

Order Extending Time Within Which to Appeal .. 521

Agreed Statement on Appeal Pursuant to Rule

10(d) of the Federal Rules of Appellate Pro-

cedure 522

Summary of Dates 530

Order of United States Court of Appeals. Appears

in Petition for Writ of Certiorari, Appendix A,

page 1 535

Opinion of United States Court of Appeals. Ap-

pears in Petition for Writ of Certiorari, Ap-

pendix D, pages 33-39 535

4

_IN THE

Supreme Court of the United States

October Term, 1972

No. 72-1195

AMERICAN PIPE AND CONSTRUCTION Co., et al.,

Petitioners,

vs.

STATE OF UTAH, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT.

ee

APPENDIX.

In Two Volumes.

Volume II.

(Pages 313 to 535).

—313—

ea Complaint.

ms (Jury Demanded).

United. Statee District Couet, District of Utah, Ces

tral Division.

“hide of thak ca, bokolt of aa cal i ben he

ilarly situated, Plaintiffs, vs. American Pipe and Con-

struction Company; United Concrete Pipe Corporation;

Utah Concrete Pipe Company; W. R. White Company;

United States Steel Corporation; Kaiser Steel Corpora-

tion; Smith-Scott, Inc.; U.S. Industries, Inc., Defend-

ants. Civil No, C-177-69.

The State of Utah, plaintiff by its attorneys, acting

under the direction of the Attorney General of Utah,

brings this civil action on its own behalf and on behalf

of all other public bodies, agencies, political subdi-

visions and districts of the State of Utah similarly situ-

ated and on behalf of other states and their public

bodies, agencies, and subdivisions for treble the amount

of damages suffered by it and by each other member

of the class due to the defendants’ violations of the

antitrust laws of the United States. Plaintiff demands a

trial by jury and alleges as follows:

FIRST CAUSE OF ACTION

I

CLASS ACTION

1. Plaintiff brings this action for itself separately

and as a representative of a class on behalf of all of

the members thereof. The class represented by plaintiff

is composed of those public bodies and agencies of state

and local government in the State of Utah who are

end users of pipe acquired from: defendants, co-con-

—314—

2. The class also includes all other states in the

Western Area, as hereinafter defined, which have not

previously filed a similar action including the states of

Wyoming, Nevada and Idaho and includes those pub-

lic bodies and agencies of state and local government

in said states who are end users of pipe acquired from

defendants, co-conspirators and others.

3. The class is so numerous that joinder of all

members is impractical and there are questions of law

or fact common to the class. The claims of plaintiff as

representative are typical of the claims of the class,

and plaintiff as representative acting through its At-

torney General, will fairly and adequately protect the

interests of the class.

I

JURISDICTION AND VENUE

4. This complaint is filed and the jurisdiction of

this Court is invoked under the provisions of Section 4

of the Act of Congress of October 15, 1914, c. 323, 38

Stat. 731, as amended (15 U.S.C. § 15), entitled “An

Act‘ to supplement existing laws against unlawful re-

straints and monopolies, and for other purposes,” com-

monly known as the Clayton Act, to recover damages

for injuries to its business or property which the

State of Utah and each member of the class has sus-

tained due to violations by the defendants of Section 1

of the Act of Congress of July 2, 1890, c. 647, 26

Stat. 209, as amended (15 U.S.C. § 1), entitled “An

Act to protect trade and commerce against unlawful re-

straints and monopolies,” commonly known as the Sher-

man Act. E

5. Each corporate defendant maintains an office,

transacts business, is found, resides, or has an agent

—315—

4n the District of Utah, and each of said corporate de-

fendants is within the jurisdiction of this Court for the

purpose of service.

_ 6. The interstate radio: ands eeceiaaediaaial

herein is carried on in part within the District of Utah.

Many of the unlawful acts done pursuant to the com-

bination and conspiracy hereafter alleged have been per-

formed within the District of Utah.

Ill

DEFINITIONS

7. As used herein the term:

(a) “Steel small diameter pressure pipe” (herein re-

ferred to as “steel SDP pipe”) means thin-walled welded

steel pipe which is manufactured in diameters of 4

inches to 48 inches and sold for the conveyance of

water or sewage under internal pressure exceeding

115 feet of head or 50 pounds per square inch,

(b) “Alternate small diameter pressure pipe” (here-

in referred to as “alternate SDP pipe”) means small

diameter pressure pipe (herein referred to as “SDP

pipe”) which is manufactured and sold or offered for

sale on jobs where the specifications permit the use of

either concrete SDP pipe or steel SDP pipe.

(c) “Steel large diameter pressure pipe” (herein re-

ferred to as “steel LDP pipe”) means heavy-walled

welded steel pipe which is manufactured in diameters

of over 24 inches and sold for the conveyance of water

and sewage under internal pressures exceeding 115 feet

of head or 50 pounds per square inch.

(d) “Alternate large diameter pressure pipe” (here-

in referred to as “alternate LDP pipe”) refers to large

diameter pressure pipe (herein referred to as “LDP

—3—

pepe”) which is manufactured and sold or offered for

sale on jobs where the specifications permit the use

of either concrete LDP pipe or steel LDP pipe. The

specifications for alternate LDP pipe customarily re-

quire that the pipe be lined and/or coated with con-

crete.

(e) “Concrete pipe” means pipe constructed of con-

crete either with or without metal components as here-

inafter defined to convey water and sewage and in-

cludes both pressure and non-pressure pipe.

(f) “Metal components” refers to the steel plates,

sheets, skelp, rods, wire and/or mesh used in the

manufacture of concrete pipe and to the steel plate

and sheets used in the manufacture of steel SDP and

LDP pipe.

(g) “Western Area” refers to the states of Califor-

nia, Oregon, Washington, Arizona, New Mexico, Utah,

Wyoming, Nevada, Idaho and Hawaii.

(h) “End users” means consumers who purchase

and install or have installed any of the types of pipe

above defined in systems primarily for the conveyance

of drinking water and sewage under pressure and for

dramage, irrigation, flood control and similar purposes.

IV

DESCRIPTION OF THE PARTIES

8. Plaintiff, the State of Utah, through its depart-

ments, divisions, agencies, institytions, universities and

colleges, is an end user of the types of pipe herein

defined acquired from defendants, co-conspirators and

others directly or indirectly.

—317—

» 9, The class represented by plaintiff is composed of

all of the political subdivisions of the State, including

counties, cities, and municipalities. It also includes dis-

tricts comprising public entities organized under the

laws of Utah, including, but not limited to irrigation,

flood control, sewer and water districts. Many of these

political subdivisions and districts are end users of the

pipe herein defined acquired from defendants, co-con-

spirators and others directly or indirectly.

10. The class also includes all other states in the

Western Area which have not previously filed a similar

action including the states of Wyoming, Nevada and

Idaho and their departments, divisions, agencies, in-

stitutions, universities and colleges. The class includes

all of the political subdivisions of said states, including

counties, cities, and municipalities. It further includes

districts comprising public entities organized under the

Jaws of said states. Said states and many of their public

bodies, agencies, political subdivisions, and districts are

end users of the pipe herein defined acquired from

defendants, co-conspirators and others directly or in-

directly.

11. The State of Utah and its political subdivisions

and districts and the other states in the Western Area

including the states of Wyoming, Nevada and Idaho,

together with their political subdivisions and districts

are a class of persons herein called “public and users.”

42. The State of Utah and the other public end

users own, construct, alter, maintain and operate water

and sewage projects, highways and other facilities for

—318—

the rendering of public services and, by means of

awarding public construction contracts, acquire materi-

als and services, including pipe as defined herein.

13. Defendants:

(a) Defendant American Pipe and Construction

Company (hereinafter called “American”) is a corpo

ration existing under the laws of the State of California

with its principal place of business in Monterey Park,

California. American is engaged, among other things,

in the business of manufacturing or furnishing and

selling and offering for sale of some one or more of the

types of pipe defined herein to customers within the

Western Area.

(b) Defendant United Concrete Pipe Corporation

(hereinafter called “United”) is a corporation organ-

ee te as) veces ee le

its principal place of business in Baldwin

Park, ornia. United is engaged, among other things,

in the business of manufacturing or furnishing and

selling and offering for sale of some one or more of

the types of pipe defined herein to customers within

the Western Area.

(c) Defendant Utah Concrete Pipe Company (here-

inafter called “Utah Pipe”) is a corporation organized

and existing under the laws of the State of Utah with its

principal place of business in Ogden, Utah. Utah Pipe

is engaged, among other things, in the business of man-

ufacturing or furnishing and selling and offering for

sale of some one or more of the types of pipe defined

herein to customers within the Western Area.

(d) Defendant W. R. White Company (hereinafter

called “White”) is a corporation organized and existing

under the laws of the State of Utah with its principal

19

place of business in Ogden, Utah. White is engaged,

among other things, in the business of manufacturing

or furnishing and selling and offering for sale of some

one or more of the types of pipe defined herein to

customers within the Western Area.

(e) Defendant United States Steel Corporation

(hereinafter called “U.S. Steel”) is a New Jersey cor-

poration which in 1948 acquired the Consolidated

Western Steel Corporation, which during the period of

the conspiracy herein alleged it operated as a division

of U.S. Steel. During this time U.S. Steel, among other

things, engaged in the business of manufacturing or

furnishing and selling and offering for sale of some one

or more of the types of pipe defined herein to customers

within the Western Area.

(f) Defendant Kaiser Steel Corporation (hereinafter

called “Kaiser” ) is a corporation organized and existing

under the laws of the State of Nevada with its prin-

cipal place of business in Oakland, California. Kaiser

was, during the period of time covered by this com-

plaint, engaged, among other things, in the business of

manufacturing or furnishing and selling and offering

for sale of some one or more of the types of pipe

defined herein to customers within the Western Area.

(g) Defendant Smith-Scott, Inc. (hereinafter called

“Smith-Scott”) is a corporation organized and existing

under the laws of the State of California, with its prin-

cipal place of business in Riverside, California. Smith-

Scott, among other things, is engaged in the business

of manufacturing or furnishing and selling and offer-

ing for sale of some one or more of the types of pipe

defined herein to customers within the Western Area.

(h) Defendant U.S. Industries, Inc. (hereinafter

called “U.S.I.”) is a Delaware corporation which in

——320—

1955 purchased the assets of Southern Pipe and Cas

ing, which during the period of the conspiracy herein

alleged, it operated as the Tubular Products Division

of U.S.I. with offices in Azusa, California. During the

period of the conspiracy herein alleged, U.S.1., through

its Tubular Products Division, engaged in the business

of manufacturing or furnishing and selling and offering

for sale of some one or more of the types of pipe

defined herein to customers within the Western Area.

14. Martin-Marietta Corporation (hereinafter

called “Martin-Marietta”) and various other corpora-

tions, partnerships and individuals engaged in the busi-

ness of manufacturing or furnishing and selling and of-

fering for sale of some one or more of the types of

pipe defined herein to customers within the Western

Area, are named as co-conspirators herein. Each of

them participated with defendants and with other co-

conspirators in the offense charged and performed acts

and made statements in furtherance thereof.

Vv

NATURE OF TRADE AND COMMERCE

15. The defendants Smith-Scott, U.S.I. and US.

Steel are the principal manufacturers of steel SDP pipe

in the Western Area. Total sales of steel SDP pipe

by these defendants during the period May, 1958

through January, 1962 averaged at least $13,500,000

annually.

16. Defendants American, Smith-Scott, U.S.I., US.

Steel and United are the principal manufacturers of

alternate SDP pipe in the Western Area. Total sales

of alternate SDP pipe by these defendants during the

period 1957 through 1961 inclusive averaged approxi-

mately $18,000,000 annually.

—321—

~ 17. The defendants American, Kaiser, United and

‘US. Steel are the principal manufacturers of alternate

“LDP pipe in the Western Area. Total sales of alternate

LDP pipe by these defendants during the period 1958

through 1961 inclusive averaged at least $15,000,000

annually.

~ 18. The defendants Kaiser and U.S. Steel are the

principal manufacturers of steel LDP pipe in the West-

am Area. Total sales of steel LDP pipe by these de-

fendants during the period 1958 through 1961 inclu-

five, averaged at least $7,000,000 annually.

19. The defendants American and United are the

principal manufacturers of concrete pipe in the West-

ern Area. Total sales of concrete pipe by these de-

fendants during the period 1958 through 1961 inclu-

sive averaged at least $41,500,000 annually.

20. The defendants Utah Pipe and White are man-

ufacturers and vendors of some of the types of concrete

pipe defined in this complaint. During the period of the

conspiracy alleged herein said defendants were signifi-

cant market factors in at least Utah, a part of the

Western Area.

21. The co-conspirator Martin-Marietta is a manu-

facturer and vendor of concrete pipe of the types de-

fined in this complaint. During the period of the con-

spiracy alleged herein Martin-Marietta was a significant

market factor in the Western Area.

22. The construction of systems utilizing the types

of pipe herein defined is customarily contracted for by

the public end user with general contractors on the

basis of competitive bids. Where it is appropriate and

desired by the end user, the end user drafts or has

drafted specifications allowing the use of steel LDP

—322—

or SDP, concrete or either ‘steel or concrete LDP or

SDP pipe in the alternative.

23. Prior to submitting bids to the end user, the

general contractor usually solicits quotations from pipe

manufacturers for the purchase price of the pipe de

livered to the site where it is to be installed. The

award winning contractor usually contracts for ‘the

purchase of the pipe from the low quoting pipe manv-

facturer at the price quoted by the latter. Occasionally

the end user contracts directly with the pipe manv-

facturer for the purchase of said pipe and usually on

the basis of competitive bidding.

24. The specifications for alternate LDP pipe cus

tomarily require that the pipe be lined and/or coated

with concrete. When the steel LDP pipe manufacturers

plan to submit bids or quotations on an alternate LDP

pipe job, they in turn solicit quotations or bids from

the concrete LDP pipe manufacturers for the perform-

ance of this service. The cost of this service is then in-

corporated in the quotation or bid submitted to the

general contractors or end users by the steel LDP pipe

manufacturer.

25. Because of the relatively limited number of

manufacturers of the types of pipe defined in this com-

plaint, general contractors and end users frequently

solicit quotations and bids from manufacturers outside

the state where said pipe is to be installed. Manu-

facturers of said pipe usually manufacture the pipe for

a particular job only after receiving an order for it.

Said manufacturers customarily identify each section

of pipe so as to designate its position in the pipeline

and deliver or have delivered said pipe directly to the

trench site or as near as possible to the place where it

will be installed. During the period of the conspiracies

owen

herein alleged, the defendants herein have manufactured

substantial quantities of the types of pipe herein de-

fined at their plants within the Western Area and else-

where, and in response to solicitations calling for bids

on the types of pipe herein defined have sold, shipped

and delivered said pipe to job sites outside the state

where it was manufactured. Numerous of these job

sites were and are situated within the State of Utah,

thus the types of pipe herein defined move in a con

tinuous and uninterrupted flow from the place of man-

ufacture, including the plants of the defendants herein

to points of installation outside the state where said

pipe was manufactured.

26. Steel SDP pipe and steel LDP pipe are fabri-

cated largely from steel sheet and plate. Most concrete

pipe is manufactured with metal components to

strengthen the pipe, and particularly with respect to

concrete pressure pipe to make it water-tight. The de-

fendarit manufacturers purchase or produce said steel

plate or metal components in anticipation of orders

for or to enable them to fill existing orders for the

types of pipe herein defined, except non-reinforcd

concrete pipe. Substantial quantities of the steel plate

or metal components which the defendants use in manu-

facturing the types of pipe herein defined, except non-

reinforced concrete pipe, are produced outside the state

where said ‘pipe is manufactured. The movement in

interstate commerce of the steel plate and metal com-

ponents is necessary to the manufacture and sale of

said pipe by the defendants in the Western Area, and

the defendants and co-conspirators are conduits through

which said steel plate and metal components flow in

a continuous and uninterrupted stream in interstate

commerce from the place where said steel plate or metal

mer | ee

components are produced to the place within the West-

ern Area where they afe fabricated into the types of

pipe herein defined and on to the installation site.

27. Any restraint upon free competition in the pro-

duction or sale of the types of pipe herein defined in

the Western Area necessarily and directly affects the

interstate flow of said pipe and the interstate flow of

the sheet and steel plate and the metal components

utilized in the manufacture of all of said types of pipe,

except non-reinforced concrete pipe.

VI

OFFENSES CHARGED

28. Beginning prior to the year 1954 in the case of

concrete pipe and prior to the year 1958 in the case of

steel pipe and probably as far back as 1946 in both

cases and continuing so far as plaintiff and the other

public end users know to the date of the filing of this

complaint, the defendants and co-conspirators engaged

in an unlawful combination and conspiracy to eliminate

competition and stabilize and maintain the prices of

the herein defined types of pipe, thereby restraining the

hereinabove described interstate trade and commerce

in violation of Section 1 of the Act of Congress of

July 2, 1890, as amended, 15 U.S.C. § 1, commonly

known as the Sherman Act.

29. The aforesaid combination and conspiracy con-

sisted of a continuing agreement, understanding and

concert of action among and between the defendants

—325—

and co-conspirators, the substantial terms of which

were:

(a) To submit collusive and rigged bids and quota-

tions in response to solicitations calling for bids and

quotes for the herein defined types of pipe.

(b) To allocate and divide orders for the purchase

of the herein defined types of pipe among themselves.

(c) To refrain from competing in the manufacture

of certain sizes and types of pipe in certain areas

where those sizes and types were manufactured by an-

other defendant or co-conspirator.

30. For the purpose of forming and effectuating

the aforesaid combination and conspiracy, the defend-

ants and co-conspirators did those things which, as

hereinabove alleged, they combined and conspired to

do, including, but not limited to the following:

(a) Defendafits and co-conspirators held periodic

meetings to tally past orders and to discuss prospective

orders for the purpose of allocating prospective orders

among themselves according to agreed upon percent-

ages.

(b) At such meetings and in subsequent communi-

cations by telephone and other interstate communica-

tion media, the defendants and co-conspirators agreed

between and among themselves as to which manufactur-

ers would submit the low bid and what that bid would

be and which manufacturers would refrain from bid-

ding or would submit higher complementary bids not

intended to win awards and what those bids would be.

ae

(c) At such meetings and at subsequent meetings,

defendants and co-conspirators would agree in certain

instances as to the types and sizes of pipe each would

manufacture and market in certain geographical areas

included in the Western Area.

VII

EFFECTS OF THE CONSPIRACY

31. The aforesaid combination and conspiracy had,

among others, the following effects:

(a) Competition between and among defendants

and co-conspirators has been restricted and suppressed.

(b) General contractors and end users were de-

prived of the right to receive competitive bids and

quotes for the types of pipe herein defined and were

deceived into believing that collusive and non-competi-

tive bids and quotes were competitive.

(c) Public end users and others engaged in the

conveyance and distribution of water and sewage have

been denied the right to receive competitive sealed bids

as required by law or practice or have been denied a

competitive market in connection with their purchases

and have been forced to pay high, artificially fixed

prices for the type of pipe herein defined.

(d) The cost of the types of pipe herein defined

has been arbitrarily increased, fixed and maintained.

(e) The business and property of the plaintiff and

the other public end users, as intended by the defendants

and co-conspirators, were injured in that they were com-

pelled to pay higher prices for the types of pipe herein

defined than they would have had to pay had it not

been for the aforementioned combination and con-

spiracy.

—

vill

TOLLING OF THE STATUTE

OF LIMITATIONS

32. Plaintiff and the other public end users did

not discover said combination and conspiracy until the

year 1968. Plaintiff and the other public end users had

no knowledge of the said combination and conspiracy

or of any facts which might have led to the discovery

thereof until after March 10, 1964, when a United

States Grand Jury sitting in the Southern District of

California, Central Division, returned indictments num-

pered 33338-42 inclusive, setting out in large part the

combinations and conspiracies herein alleged. Plaintiff

and the other public end users could not have uncovered

the conspiracy at an earlier date by the exercise of due

diligence inasmuch as the unlawful conspiracy had been

fraudulently concealed by defendants and co-conspira-

tors through their adoption of elaborate schemes for

submitting sham and collusive bids which misrepresent-

ed the independence and competitiveness thereof and

their resort to secrecy to.avoid detection as hereinabove

alleged.

33, Since March 10, 1964 and continuing through

and one year from the date of the entering of a Con-

sent Decree against the last remaining defendant in a

government case, said Consent Decree having been en—

tered on May 24, 1968, the running of the Statute of

limitations has been suspended by reason of 15 U.S.C.

§ 16 (b), commonly referred to as § 5 (b) of the Clay-

ton Act because of the pendency of actions instituted by

the United States of America. This complaint is based

in part upon matters alleged in those government

actions.

a

34, The defendants Utah Pipe and White were nei-

ther defendants in the government actions nor named

co-conspirators. As to those defendants, plaintiff and

the other public end users had no knowledge of the said

combination and conspiracy or any facts which might

have led to the discovery thereof prior to at least the

year 1968. Plaintiff and the other public end users

could not have uncovered the conspiracy as to these de-

fendants at an earlier date by the exercise of due dili-

gence inasmuch as said defendants and other co-con-

spirators acted together and individually by agreement

lusive bids and quotations which misreprésetited: the

independence and competitiveness thereof is but one

manifestation of their resort to secrecy.

Ix

INJURY TO PLAINTIFF AND.

MEMBERS OF THE CLASS

35. Since at least 1946 plaintiff and the other pub-

lic end users have acquired substantial quantities of the

types of pipe herein defined which have been manufac-

tured by defendants, co-conspirators and others. In ac-

quiring said pipe plaintiff and the other public end

users have usually invited formal sealed competitive

bids from manufacturers directly or from prime contrac-

tors, and they have generally accepted the price of-

fered by the lowest responsible bidder.

36. When acquiring said pipe directly from manu-

facturers, plaintiff and the other public end users have

been led and induced by the defendants and co-con-

spirators, as a result of the illegal combination and cont-

—~$29—

spiracy alleged herein, to make contract awards at prices

fixed by and influenced by said illegal combination and

conspiracy, and plaintiff and the other public end users

have been denied the benefit of free and unrestricted

competition in their acquisition of said pipe. By the

operation of defendants’ and co-conspirators’ agreements

and concert of action herein alleged, plaintiff and the

other public end users have been compelled to pay

substantially higher prices than would have been the

case but for the violation of the antitrust laws herein al-

leged.

37. When acquiring said pipe through prime con-

tractors, plaintiff and the other public end users have

been forced to make contract awards on bids or quotes

incorporating prices fixed by and influenced by the

defendants’ and co-conspirators’ illegal combination and

conspiracy, and plaintiff and the other public end users

have been denied the benefit of free and unrestricted

competition in their acquisition of said pipe. By the

operation of defendants’ and co-conspirators’ agree-

ments and concert of action herein alleged, the plaintiff

and the other public end users have been compelled

to pay substantially higher prices than would have been

the case but for the violation of the antitrust laws herein

alleged. P

38. As a result of the alleged illegal combination

and conspiracy, plaintiff and the other public end users

have been injured and financially damaged by the de-

fendants in an amount which is presently undetermined.

Plaintiff and the other public end users specifically re-

serve the right to determine the exact amount of their

injury and upon such determination or at such other

time as the court directs to amend this complaint and

set forth in said amendment or whatever other means

the court may direct, the exact amount of their injury.

—330—

x

ADDITIONAL CAUSES OF ACTION ALTERNA-

TIVE TO THE ABOVE FIRST CAUSE OF AC-

TION

39. As additional causes of action alternative to the

above first cause of action plaintiff alleges that com-

mencing at least as early as the year 1954 and continu-

ing until at least 1962, the exact dates being unknown

to plaintiff, the defendants and co-conspirators engaged

in a continuing course of conduct which consisted of a

series of combinations, conspiracies and agreements in

restraint of the aforesaid interstate trade and commerce

in the types of pipe herein defined. These combina-

tions, conspiracies and agreements are described in the

following alternative causes of action. Plaintiff herein

alleges and incorporates by reference in each of the

alternative causes of action as fully as though there

separately set out, Paragraphs I through V, Paragraph

VII and Paragraph VIII.

XI

SECOND CAUSE OF ACTION

(Combination and Conspiracy Involving

Steel Small Diameter Pressure Pipe)

40. -Beginning at least as early as May, 1958 and

continuing thereafter until at least January, 1962, the

exact dates being unknown to plaintiff and the other

public end users, the defendants US. Steel, U.S.I.

and Smith-Scott and co-conspirators engaged in an un-

lawful combination and conspiracy in restraint of the

hereinabove described interstate trade and commerce

in steel SDP pipe in violation of Section 1 of the Act

of Congress of July 2, 1890, c. 647, 26 Stat. 209, as

—331—

amended, entitled “An Act to protect trade and com-

merce against restraints and monopolies,” commonly

known as the Sherman Act.

41. The aforesaid combination and conspiracy con-

sisted of a continuing agreement, understanding and

concert of action among said defendants and co-con-

spirators, the substantial terms of which were:

(a) To submit collusive and rigged bids and quota-

tions for the sale of steel SDP pipe; and

(b) To allocate and divide orders for the purchase

of SDP pipe among themselves.

42. For the purpose of forming and effectuating

and as a part of the aforesaid combination and con-

spiracy, said defendants did those things which, as

hereinabove alleged, they combined and conspired to

do, including, but not limited to the following things:

(a) Said Defendants and eoseonspirators held period-

ic meetings to tally past orders and to discuss prospec-

tive orders for the purpose of allocating prospective ~

orders among said defendants and co-conspirators.

(b) At such meetings and in subsequent telephone

conversations said defendants and co-conspirators agreed

between and among themselves as to which manufacturer

would make the low bid, and what that bid would be,

and which manufacturers would submit higher comple-

mentary bids not intended to win awards on such

jobs.

43. The aforesaid combination and conspiracy in re-

straint of the interstate trade and commerce in the types

of pipe covered by this paragraph of the complaint was

carried out in the manner and with the effects described

in Paragraphs VII and VIII.

—332—

44. Since at least 1946 plaintiff and the other pub-

lic end users have acquired substantial quantities of the

type of pipe covered in this paragraph of the complaint

which have been manufactured by defendants, co-

conspirators and others. In acquiring said pipe, plaintiff

and the other public end users have usually invited for-

mal sealed competitive bids from manufacturers direct. ~~

ly or from prime contractors, and they have generally

accepted the price offered by the lowest responsible

bidder.

45. When acquiring said pipe directly from man-

facturers plaintiff and the other public end users have

been led and induced by the defendants and co-conspira-

tors as a result of the illegal combination and conspir-

acy alleged herein, to make contract awards at prices

fixed by and influenced by said illegal combination and

conspiracy, and plaintiff and the other public end

users have been denied the benefit of free and unrestrict-

ed competition in their acquisition of said pipe. By the

operation of defendants’ and co-conspirators’ agreements

and concert of action herein alleged, plaintiff and the

other public end users have been compelled to pay sub-

stantially higher prices than would have been the case

but for the violation of the antitrust laws herein alleged.

46. When acquiring said pipe through prime con-

tractors, plaintiff and the other public end users have

been forced to make contract awards on bids or quotes

incorporating prices fixed by and influenced by said

defendants’ and co-conspirators’ illegal combination and

conspiracy, and plaintiff and the other public end users

have been denied the benefit of free and unrestricted

competition in their acquisition of said pipe. By the

operation of defendants’ and co-conspirators’ agreements

and concert of action herein alleged, the plaintiff and

—333—

"ae other public end users have been compelled to pay

(substantially higher prices than would have been the

igase but for the violation of the antitrust laws herein

- alleged.

47. As a result of the alleged illegal combination

and conspiracy, plaintiff and the other public end users

fave been injured and financially damaged by the de-

fendants in an amount which is presently undetermined.

‘Plaintiff and the other public end users specifically re-

serve the right to determine the exact amount of their

injury and upon such determination or at such other

time as the court directs to amend this complaint and

set forth in said amendment or whatever other means

the court may direct, the exact amount of their injury.

XII

THIRD CAUSE OF ACTION

(Combination and Conspiracy Involving

Alternate Small Diameter Pressure Pipe)

48. Beginning sometime prior to 1955 and continu-

ing thereafter until at least January, 1962, the exact

dates being unknown to plaintiff and the other public

end users, the defendants U.S. Steel, Smith-Scott, U.S.L.,

American and United and co-conspirators engaged in

an unlawful combination and conspiracy in restraint

of the hereinbefore described interstate trade and com-

merce in alternate SDP pipe in violation of Section 1 of

the Act of Congress of July 2, 1890, as amended,

15 U.S.C. § 1, commonly known as the Sherman Act.

49. The aforesaid combination and conspiracy con-

sisted of a continuing agreement, understanding and con-

cert of action among ‘said defendants and co-con-

spirators to allocate and divide alternate SDP pipe jobs

a

so that the manufacturers of steel SDP pipe considered

as a group on the one hand and the manufacturers of

concrete SDP pipe considered together on the other hand

would each obtain an agreed upon percent of all alter-

nate SDP pipe jobs.

50. For the purpose of forming and effectuating the

aforesaid combination and conspiracy and as a part

thereof, said defendants and co-conspirators did those

things, which, as hereinbefore alleged, they combined

and conspired to do, including, but not limited to the

following:

(a) Tallies were maintained by representatives of

each defendant for the purpose of keeping a record of

whether a steel SDP pipe manufacturer or a concrete

SDP pipe manufacturer obtained each job. Information _

needed for such tallies was often obtained at meetings

or by telephone conversations between said defendants

or co-conspirators.

51. Plaintiff here re-alleges as fully as though here

set out Subparagraphs 43 through 47 of Paragraph XI.

XIII

FOURTH CAUSE OF ACTION

(Combination and Conspiracy Involving

Alternate Large Diameter Pressure Pipe)

52. Beginning sometime prior to 1955 and continu-

ing thereafter until at least August, 1962, the exact

dates being unknown to plaintiff and the other public

end users, the defendants American, Kaiser, United

and U.S. Steel and co-conspirators engaged in an un-

lawful combination and conspiracy in restraint of the

hereinbefore described interstate trade and commerce

in alternate LDP pipe in violation of Section 1 of the

ii—-

Act of Congress of July 2, 1890, as amended, 15 U.S.C.

§ 1, commonly known as the Sherman Act.

_ 53. The aforesaid combination and conspiracy con-

sisted of a continuing agreement, understanding and

concert of action among said defendants and co-con-

spirators to allocate and divide solicitations for alter-

nate LDP pipe so that the manufacturers of steel LDP

pipe would obtain approximately 50 percent of the or-

ders resulting from said solicitations and the manufac-

_ turers of concrete LDP pipe would obtain approximately

50 percent of the orders resulting from said solicitations,

the amount of business involved in the lining and coat-

ing of the steel LDP pipe by the concrete LDP pipe

manufacturers being included in the share to be

obtained by the concrete LDP pipe manufacturets.

54. For the purpose of forming and effectuating the

aforesaid combination and conspiracy and as a part

thereof, said defendants and co-conspirators did those

things which, as hereinbefore alleged, they combined

and conspired to do, including, but not limited to the

following:

(a) Tallies were maintained by representatives of

each defendant for the purpose of keeping a record of

whether a steel LDP pipe manufacturer or a concrete

LDP pipe manufacturer obtained each job. Information

needed for such tallies was often obtained at meetings

or by telephone conversations between said defendants

or co-conspirators.

55. Plaintiff here re-alleges as fully as though here

set out Subparagraphs 43 through 47 of Paragraph XI.

S23 —336—

XIV

FIFTH CAUSE OF ACTION

(Combination and Conspiracy Involving

Steel Large Diameter Pressure Pipe)

56. Beginning sometime prior to 1955 and continu-

ing thereafter until at least August, 1962, the exact

dates being unknown to plaintiff and the other public

end users, the defendants Kaiser and U.S. Steel and co-

conspirators engaged in an unlawful combination and

conspiracy in restraint of the hereinbefore described

interstate trade and commerce in steel LDP pipe in vio-

lation of Section 1 of the Act of Congress of July 2,

1890, as amended, 15 U.S.C. $ 1, commonly known as

the Sherman Act.

57. The aforesaid combination and conspiracy con-

sisted of a continuing agreement, understanding and con-

cert of action among said defendants ahd co-conspira-

tors, the substantial terms of which were:

(a) To submit collusive and rigged bids for the sale

of steel LDP pipe; and

(b) To allocate and divide orders for the purchase

of steel LDP pipe among themselves.

58. For the purpose of forming and effectuating

the aforesaid combination and conspiracy and as a part

thereof, said defendants and co-conspirators did those

things which, as hereinbefore alleged, they combined

and conspired to do, including, but not limited to the

following things:

(a) Said defendants and co-conspirators held pe-

riodic meetings to tally orders and to discuss prospective

orders for the purpose of allocating prospective orders

among said defendants and co-conspirators.

os

=

(b) At such meetings and in subsequent telephone

conversations said defendants and co-conspirators

agreed between and among themselves as to which man-

ufacturer would make the low bid, and what that bid

would be, and which manufacturers would submit

higher complementary bids not intended to win awards

on such jobs.

59. Plaintiff here re-alleges as fully as though here

set out Subparagraphs 43 through 47 of Paragraph XI.

XV

SIXTH CAUSE OF ACTION

(Combination and Conspiracy Involving

Concrete Pipe)

60. Beginning in or prior to the year 1954 and con-

tinuing thereafter until at least August, 1962 and con-

tinuing so far as plaintiff and the other public end

users know to the date of the filing of this complaint

the defendants American, United, Utah Pipe and White

and co-conspirators engaged in an unlawful combina-

tion and conspiracy in restraint of the hereinbefore

described interstate trade and commerce in concrete

pipe in violation of Section 1 of the Act of Congress of

July 2, 1890, as amended, 15 U.S.C. § 1, commonly

known as the Sherman Act.

61. The aforesaid combination and conspiracy con-

sisted of a continuing agreement, understanding and

concert of action among said defendants and co-conspir-

ators, the substantial terms of which were:

(a) To submit collusive and rigged bids for t

sale of concrete pipe;

a

(b) To allocate and divide orders for the purchase

of concrete pipe among themselves; and

(c) To refrain from competing in the manufacture

of certain sizes and types of concrete pipe in certain

areas where those"sizes and types were manufactured

by another defendant or co-conspirator.

62. For the purpose of forming and effectuating the

aforesaid combination and conspiracy and as a part

thereof, said defendants and co-conspirators did those

things which, as hereinbefore alleged, they combined and

conspired to do, including, among others, the following

things:

(a) Said defendants and co-conspirators held pe

riodic meetings to tally past orders and to discuss pro-

spective orders for the purpose of allocating prospec-

tive orders among said defendants and co-conspirators.

(b) At such meetings and in subsequent telephone

conversations defendants and co-conspirators agreed be-

tween and among themselves as to which manufacturer

would. make the low bid, and what that bid would be,

and which manufacturers would submit higher com-

plementary bids not intended to win awards on such

jobs.

63. Plaintiff here re-alleges as fully as though here

set out Subparagraphs 43 through 47 of Paragraph XI.

"on

XVI

PRAYER FOR RELIEF

WHEREFORE, plaintiff prays as follows:

(1) That the alleged combination and conspiracy

among the defendants be adjudged and decreed to be

an unreasonable restraint of interstate trade and com-

merce in violation of Section 1 of the Sherman Act;

and

(2) That the plaintiff have and recover from the de-

fendants a judgment for treble the amount of the dam-

ages as will be shown by proof under its first cause of

action; or

(3) That plaintiff have and recover from defendants

judgments for treble the amount of its damages as will

be shown by proof under each of its alternative causes

of action; and

(4) That plaintiff have an injunctive decree forbid-

ding the further employment against its interests of

those conspiratorial tactics hereinabove set forth; and

(5) That each member of the class being composed

of those public end users who have purchased the

hereinabove defined types of pipe from the defendants,

co-conspirators and others directly or indirectly be al-

lowed to intervene in this action either before or after

judgment for the purpose of proving the amount of

damages suffered by it and recovering three-fold the

same, together with its litigation expenses and a rea-

sonable attorney’s fee; and

(6) That the plaintiff be awarded its litigation ex-

penses and a reasonable attorney’s fee as required by

Section 4 of the Clayton Act (15 U.S.C. § 15); and

(7) That plaintiff have such other and further relief

as the court shall deem just and proper.

Dated this 13th day of May, 1969.

VERNON B. ROMNEY

Attorney General State of Utah

/s/ Vernon B. Romney

MULLINGER, PRINCE & MANGUM

Gerald R. Miller

Denis R. Morrill

NESLEN & MOCK

Kent Shearer

By /s/ Gerald R. Miller

Special Assistant Attorneys

General State of Utah

Attorneys for Plaintiff

206 El Paso Natural Gas Building

Salt Lake City, Utah

Plaintiff herein respectfully demands a jury, pur-

suant to Rule 38 (b) of the Federal Rules of Civil

Filed May 13, 1969.

—341—

Motion for Order That This Action Shall Not Be

Maintained as a Class Action.

United States District Court, Central District of Cali-

fornia.

State of Utah, on behalf of itself and all others sim-

ilarly situated, Plaintiffs, vs. American Pipe and Con-

struction Company; United Concrete Pipe Corporation;

Utah Concrete Pipe Company; W. R. White Company;

United States Steel Corporation; Kaiser Steel Corpora-

tion; Smith-Scott, Inc.; U.S. Industries, Inc., Defendants.

Civil No. 69-1964-HP.

Pursuant to Rule 23 of the Federal Rules of Civil

Procedure and the Order of this Court dated July 17,

1969, the undersigned defendants move the Court for

its order determining that this action shall not be main-

tained as a class action.

This motion is made upon the grounds that the

action is not a class action within the meaning of Rule

23, Federal Rules of Civil Procedure, that the pre-

requisites to a class action prescribed by Rule 23(a)

and (b) are not present in the action and that a class

action is inferior to other available methods for the fair

and efficient adjudication of the action. This motion is

based upon the Affidavit of Jesse R. O’Malley, and

Memorandum of Points and Authorities attached here-

to, and all pleadings, papers, documents and other Ex-

hibits which are on file in this cause of action at the

time this motion comes on for hearing.

DATED: November 14, 1969.

THELEN, MARRIN, JOHNSON

& BRIDGES

Gordon Johnson, Esq.

One Eleven Sutter Street

San Francisco, California 94104

Attorneys for Defendant

—342—

KAISER STEEL CORPORATION

PAUL, HASTINGS, JANOFSKY &

WALKER

Oliver F. Green, Jr., Esq.

510 South Spring Street .

Los Angeles, California 90013

Attorneys for Defendant

U.S. INDUSTRIES, INC.

GEORGE W. JANSEN, Esq.

110 Laurel Street

San Diego, California 92101

and

SULLIVAN, JONES & MITCHELL

James O. Sullivan, Esq.

2140 Fourth Avenue

San Diego, California 92101

Attorneys for Defendant

AMERICAN PIPE AND CONSTRUC-

TION CO.

GIBSON, DUNN & CRUTCHER

Robert E. Cooper, Esq.

634 South Spring Street

Los Angeles, California 90014

Attorneys for Defendants

SMITH-SCOTT CO., INC. and

UNITED CONCRETE PIPE CORPORA-

TION

PARSONS, BEHLE, EVANS & LATIMER

Calvin A. Behle, Esq.

Kearns Building

Salt Lake City, Utah 84101

: a

—34d—

and

DOMINIC B. KING, Esq.

Law Department,

United States Steel Corporation

525 William Penn Place

Pittsburgh, Pennsylvania 15230

and

MUSICK, PEELER & GARRETT

John M. Robinson, Esq.

Jesse R. O'Malley, Esq.

One Wilshire Boulevard

Los Angeles, California 90017

Attorneys for Defendant

UNITED STATES STEEL CORPORATION

By /s/ Jesse R. O’Malley

JESSE R. O"MALLEY

snililias

Findings of Fact and Order Respecting Class Action,

United States District Court, Central District of

California.

State of Utah, on behalf of itself and all others sim-

ilarly situated, Plaintiffs, vs. American Pipe and Con-

struction Company; United Concrete Pipe Corporation;

Utah Concrete Pipe Company; W. R. White Com.

_pany; United States Steel Corporation; Kaiser Steel

Corporation; Smith-Scott, Inc.; U.S. Industries, Inc.,

Defendants. Civil No. 69-1964-MP.

Defendants herein having moved for an order of

this Court determining this action shall not be main-

tained as a class action, and the same having come on

for hearing on December 1, 1969, and plaintiffs and

defendants having adduced evidence with respect there-

to and the Court being fully advised in the premises,

finds as follows:

1. Numerous other parties, who would clearly qual-

ify as members of the general class alleged by plaintiffs,

have heretofore commenced actions on their own be-

half. Between August 1964 and April 1966, over 100

separate actions allegedly arising out of this same

“Western Pipe Conspiracy” were filed in eight different

United States District Courts of the Ninth Circuit. In

three actions members of an alleged class in those ac-

tions purported to represent the same broad class of

“public end-users” which plaintiffs herein claim to rep-

resent, and in another action, the State of California

claimed to represent all of the public end-users within

said State. All the aforesaid actions and resulting settle-

ments were widely publicized and potential plaintiffs,

throughout the “Western Area,” should have had notice

thereof prior to the termination, during 1967, 1968

and 1969, of said actions.

—

—

2. The entities alleged by plaintiff to be members

of the class described in the Complaint, in fact, are

not so numerous that joinder of all such entities is

impracticable.

3. A class action has heretofore been shown to be

inferior to other available methods for the fair and

efficient adjudication of the instant controversy, and

the Court so finds in accordance therewith.

NOW, THEREFORE, IT IS ORDERED, that the

action herein may not be maintained as a class action

and, no parties having joined therein, the class action,

alleged in the Complaint herein, in all respects stands

terminated as of May 13, 1969, the date of the filing

of the Complaint herein.

DATED: Dec. 3, 1969.

/s/ Martin Pence

United States District Court Judge

Filed December 4, 1969.

[Endorsement omitted in printing]

Entered December 4, 1969.

[Endorsement omitted in printing]

[Certification omitted in printing]

-—346—

Decision on Defendants’ Motion Opposing Class Action,

United States District Court, Central District of Cali-

fornia.

State of Utah, on behalf of itself and all others

similarly situated, Plaintiffs, vs. American Pipe and

Construction Company; United Concrete Pipe Corpo-

ration; Utah Concrete Pipe Company; W. R. White

Company; United States Steel Corporation; Kaiser

Steel Corporation; Smith-Scott, Inc.; U.S. Industries,

Inc., Civil No. 69-1964-MP.

On May 13, 1969, the State of Utah filed this “west-

ern pipe” Sherman § 1 antitrust action against certain

concrete and steel pipe manufacturing companies, seek-

ing treble damages and injunctive relief on its own be-

half and in addition, claimed to represent a class de-

scribed as (1) “those public bodies and agencies of

state and local government in the State of Utah who

are end users of pipe acquired from the defendants, co-

conspirators and others” and (2) those states in the

Western Area which have not previously filed a similar

action.’

Defendants have moved for an order that the action

not be maintained as a class action.

Plaintiff denominated “those states in the Western

Area” as being the states of “Wyoming, Nevada and

Idaho”, and includes along with them the public bodies

and agencies of the states and local governments in

those several states and Utah who are end users of

pipe acquired from the defendants, etc. Appended to

plaintiffs memorandum in support of its class action

allegations is a list of what this court can only deter-

1Complaint, para. 1, pp. 1-2.

*Complaint, para. 2, p. 2.

—34]—~

mine to be every incorporated whistle-stop, hamlet, vil-

lage, town, city, county, and water and sewer improve-

ment district in Utah, Nevada, Wyoming and Idaho.

The several collections of whistle-stops, etc., total some

300 for Utah, 240 for Idaho, 270 for Wyoming, and

31 for Nevada.’ Plaintiff did not represent that each

was actually an end user of pipe—plaintiff just made

a list.

As indicated in the chronological history of the west-

ern pipe cases set forth in this court’s decision of Au-

gust 1, 1969, in Maricopa County v. American Pipe

and Construction Co., et al., 303 F.Supp. 77 (D. Ariz.

1969), the government’s criminal complaint against

some of the defendants named in the instant action

‘was filed on March 10, 1964, and on June 23, 1964,

the government's civil actions were started.

As this court held in Maricopa, the government’s

criminal and civil actions tolled the statute of limita-

tions until May 24, 1969. Beginning in August 1964,

Clayton § 4 treble damage antitrust actions were there-

after filed by the states of Hawaii, California, Oregon,

Washington and Arizona against American Pipe and

Construction Company, United Concrete Pipe Corp.,

U.S. Steel, Kaiser Steel, Smith-Scott, Inc., and U.S.

Industries, all defendants herein, as well as other de-

fendants, charging exactly the same general antitrust

conspiracies, etc., as set forth in the Utah complaint.

In each of the complaints of the states of Hawaii,

California, Oregon and Washington, and of the United

*The Nevada list includes the City of Las Vegas, which on

western antitrust

January 9, 1968, filed its own private

civil action in No. 1107-LV, District of Nevada, against Amer-

Construction Martin-Marietta

—348—

States, as well as in three other of the 100 separate

end user actions filed “in the Western Area”, these

actions were denominated “class actions” under the

old (pre 1966) Rule 23, F. R. Civ. P. This court,

treating them as spurious class actions, permitted inter-

vention by all aggrieved public bodies of those several

states and gave ample time for joinder. The sum total

of the actual parties joining in the class actions, in

those four states, plus the state and other public bodies

in Arizona, as well as the City of Las Vegas, Nevada,

and other private end user actions, totaled some 350

plaintiffs. All of the parties involved in the “class ac-

tions” have settled their claims and the actions have

been dismissed. The United States Government has also

settled its end user claims arising out of the “western

pipe” conspiracy, as have all other but some one-half

dozen late, late filing individual claimants.

Massive discovery, with depositions in depth of the

knowledgeable employees of the major conspirators, to-

gether with centralized deposit of thousands of docu-

ments relative to the underlying alleged conspiracy,

is long since ended. The publicity regarding the suits

—covering interim rulings by this court over the past

five years, published in CCH Trade Regulation Reports,

BNA Law Week, and West’s Federal Supplement, to-

gether with newspaper publicity anent filing of suits

and settlement sums received by public bodies, has

been spread throughout the western states during the

past five years.

The court will take judicial notice that in November

of 1968 at the conference of the National Association

of State Purchasing Agents, held in Honolulu, repre-

sentatives of the State Purchasing Agents of Nevada

and Utah were present when this judge delivered an

—$49—

address covering in depth some of the problems of

antitrust litigation in the western pipe cases. This court

will also take judicial notice that Lewis Markus, Chief,

Economic Section, Antitrust Division, United States De-

partment of Justice, has been, as he himself admits,

“somewhat of a fixture on the program of each of the

Association’s annual meetings since about 1961,” and

has reported to the state purchasing agents on problems

of identical bidding and significant antitrust cases

brought in each preceding year. The court will also

take judicial notice that there is a National Association

of Attorneys General which holds annual conventions.

The court will also take judicial notice that each of

the public bodies who joined in the western pipe liti-

gation actions above indicated, had its own private at-

—350—

in all Rule 23(b)(3), F. R. Civ. P., problems, viz,;

“As soon as practicable after the commencement of an

action brought as a class action, the court shall de

termine by order whether it is to be so maintained.”

F. R. Civ. P., Rule 23(c)(1).

The complaint, on its face (even though its allega-

tions but barely escape violating the minimum require-

ments of Rule 23(b), in that it barely goes beyond

repetition of the language of the Rule, see Gillibeay

v. City of Richmond, et al., Ninth Circuit No. 23,026

(decided October 13, 1969)), when considered with

the list of some 800 inferentially potential plaintiffs

referred to above, would appear, superficially, to meet

the first prerequisite under Rule 23(a), viz., that the

class is so numerous that joinder of all members is

impracticable—but more of that hereafter. The allega-

tions that there are questions of law and fact common

to the claims, likewise would appear to have some

merit even though, as this court would judicially notice,

from its five-year experience dealing with this same

western pipe problem, that some threads of a common

“western pipe” conspiracy involving some of here

named defendants have been found in each of the

states and localities involved in the actions heretofore

filed. Also the court would notice that the parties in-

volved in the alleged conspiracy shifted from not only

state to state but locality to locality, as did the effect

of the conspiratorial acts upon prices. The court notes,

for example, that the Utah Concrete Pipe Company

and the W. R. White Company, defendants herein,

have never been named in. any other complaint here

tofore filed in the western pipe end user cases and

that in their moving papers in the instant class action

problem they allege that they have not operated outside

—351—

of the state of Utah. An inference to be drawn from

the above, of course, would be that other parties de-

fendants might well have to be joined in the other

three states “affected by the alleged class action. Even

if this occurred, however, the court would recognize that

there would probably be questions of law and fact

common to the “class” claims insofar as the underlying

alleged conspiracy of the defendants named herein

other than White and Utah Concrete. Thus, on its face,

the complaint would apparently meet the second pre-

requisite of Rule 23(a).

Moreover, the claims of the state of Utah for injury

and damages resulting from the alleged conspiracy

would probably be generally typical of the claims of

the states of Idaho, Wyoming and Nevada, but this

court’s past experience in the “western pipe” cases has

shown that the percentage of artificial price increase,

resulting from absence of meaningful competition and

stemming from the alleged conspiracy, has varied from

locality to locality, not only between states but between

localities within the several states. While this might

nevertheless meet the prerequisites of Rule 23(a)(3),

it would create a question as to whether or not the

representative party could adequately protect the inter-

est of the several members of the class. This inner

conflict was heretofore illustrated by the difference be-

tween Washington Public Power Supply System claims,

as contrasted with those of the State of Washington,"

wherein the State of Washington settled out and the

Washington Public Power went to trial on its separate

SWashington Public Power Supply System v. American Pipe

and Construction Co., et al., Civil No. 6568, W.D.Wash.; State

of Washington, et al. v. American Pipe and Construction Co.,

et al, Civil No. 3157, W.D.Wash.

»—352—

and independent theory of damages. But perhaps this

too might not be fatal to the plaintiffs’ class action.

What is fatal to plaintiffs’ class action allegations

are the raw facts of the past five years litigation on

almost precisely the same facts and problems of law

set forth in plaintiffs’ complaint, and this prior litiga-

- tion is a criteria which this court must consider in

resolving the “threshold problem.” Eisen v. Carlisle &

Jacquelin, 391 F.2d 555 (2 Cir., 1968).

At the time the various “class actions” were hereto-

fore filed in the various states, as previously indicated

they were “spurious class actions”, thereby necessitat-

ing joinder. Suit and complaint notice was given to

public bodies throughout the states of Hawaii, Cali-

fornia, Oregon and Washington by the several attor-

neys general to all potential plaintiffs in those several

states. The end result of such notices was that there-

after there was a joinder of all public bodies which

had claims against the several “western pipe” defend-

ants. This court had no difficulty. whatsoever in han-

dling the conjoined problems of members of the so

called classes.

Therefore, although here plaintiffs have alleged that

the class is so numerous that joinder of all the 800

listed potential members is impracticable, this court can-

not accept that numerical list as in any way truly rep-

resentative of the number of public bodies in the sev-

eral states who were actually affected by the alleged

conspiracy—nor is it so alleged! Based upon popula-

tion and population expansion in those states over the

past twenty years, the court could take judicial notice

that the number of end users in Hawaii, Arizona, Cali-

fornia, Washington and Oregon should at least be

—353—

more than seven times as many as the total number of

end users in the four states named in the present “class.”

In any event, the court can but conclude that the num-

ber of public entities in Utah, Wyoming, Nevada and

Idaho who might have been injured by the alleged

conspiracy could not possibly exceed the 350 cases here-

tofore filed by end users in the other states of the “West-

ern Area.” From prior actual experience in like cases

involving the same alleged conspiracy, this court could

not find that number so numerous that joinder of all

members was impracticable, nor can it conclude that a

class action here would achieve economies of time, ef-

fort and expenses or promote any more uniformity of de-

cision than the joinder method heretofore proved suc-

cessful.*° To the contrary, the fact of joinder and inter-

vention has made the determination of actual parties

plaintiffs and defendants, as well as the percentage of ©

damage determination, much simpler, easier and more

practicable than would have been any class action pro-

cedure under the present Rule 23(b) (3).

The court therefore finds that the first prerequisites

to a class action have not and cannot here be met. De-

fendants’ motion that this action not be maintained as

a class action is GRANTED.

This court cannot pass. by, without commenting

thereon, the statement of Gerald R. Miller, counsel

for plaintiffs, set forth in his affidavit in support of

class action, page 2:

“If they had thought the law to be otherwise,

the Attorney General in his official capacity

would certainly have urged each of these govern-

casey” of the Advisory Committee, 39 FRD 75, 102-03

- —— ay

—=3 54

mental entities to file an individual action. It was

determined, however, that such a procedure would

- do little more than complicate this action with a

multitude of individual plaintiffs, each seeking a

similar relief based upon a common violation of

the law.” (Emphasis added.)

The court notes from plaintiff's affidavits that the At-

torney General of the State of Utah and Attorney Miller

sometime in October 1968—over six months before

the statute of limitations ran—started a study of the

western pipe conspiracy. Any detailed study of the liti-

gation then and theretofore pending in the western pipe

cases would have disclosed the facts which this court

has above recited. A study of the law on the applica-

tion of a class action to pipe cases as reflected in City

of New York v. International Pipe & Ceramics Corp.

(44 FRD 584, S.D.N.Y., April 16, 1968) reported in

Trade Regulation Reports shortly thereafter, and in Fed-

eral Rules Decisions in November 1968, should also

have raised a caveat in Utah’s determination of the law

which might be applied to the present litigation. It

should have been unquestioned on the part of the plain-

tiffs’ attorneys that individual action by affected parties,

particularly the states, large cities and other large public

entities in the Western Area, should have been taken

long before any class action was belatedly filed in this

case, if in fact any of them believed the alleged con-

spiracy had injured them.

Plaintiffs’ attention is also called to Dolgow v. Ander-

son, 43 FRD 472, 484, E.D.N.Y. January 3, 1968

(Weinstein, J.): Alternative devices of “joinder, inter-

vention, consolidation, and the test case”—“presuppose

‘a group of economically powerful parties who are ob-

viously able and willing to take care of their own in-

—355—

terests individually through identical suits or individ-

ual decisions about joinder or intervention’ [quoting

from Frankel in 32 Antitrust L.J. 295, 298 (1966)].”

The court feels sure that plaintiffs’ counsel would

agree that his client, as well as most, if not all, mem-

bers of the so-called class would properly fall into the

group described by Judges Weinstein and Frankel.

DATED: Honolulu, Hawaii, this 11 day of Decem-

ber, 1969.

/s/ Martin Pence

' United States District Judge

Filed December 17, 1969.

Motion to Intervene as Plaintiffs.

United States District Court, Central District of Cali-

fornia.

State of Utah, et al., Plaintiffé, vs. American Pipe

and Construction Company, et al. Defendants, Weber

Basin Water Conservancy District, et al. Applicants

for Intervention. Civil No. 69-1964-MP.

Pursuant to Rule 24(a)(2) or in the alternative

Rule 24(b)(2) of the Federal Rules of Civil Procedure,

Weber Basin Water Conservancy District, Salt Lake

County Water Conservancy District, Salt Lake City

. Suburban Sanitary District No. 1, Salt Lake City

Suburban Sanitary District No. 2, Bountiful Water Sub-

conservancy District, Bona Vista Water Improvement

District, Central Weber Sewer Improvement District,

Granger-Hunter Improvement District, Metoropolitan

Water District of Salt Lake City, Central Davis County

Sewer District, North Davis County Sewer District,

Ogden River Water Users Association, Sandy Suburban

Improvement District, South Davis County Sewer Im-

provement District, South Davis County Water Improve-

—356—

ment District, South Ogden Conservation District, Tay.

lorsville-Bennion Improvement District, Weber-Box Elder

Conservation District, Salt Lake County, Box Elder

County, Cache County, Emery County, San Juan Coun-

ty, Wasatch County, Salt Lake City, Ogden City, Provo

City, City of South Ogden, City of Logan, Cedar City,

City of Kaysville, City of Layton, City of Washington

Terrace, City of West Jordan, City of Vernal, City of

Salem, City of Roy, City of Springville, City of Price,

City of Pleasant Grove, City of Payson, City of Oak

City, City of North Salt Lake, City of Myton, City of

Murray, City of Mt. Pleasant, City of Monticello,

Town of Minersville, City of Midvale, City of Manti,

City of Lehi, Town of Levan, Town of Huntsville,

City of Helper, City of Garland, City of Fillmore, Town

of Elwood, Town of East Layton, City of Clearfield,

City of Castledale, City of Beaver, City of Nephi,

Town of West Point, and City of Blanding, and each

of them, jointly and severally, move for leave to inter-

vene as plaintiffs in this action in order to assert the

claims set forth in the proposed complaint, of which

a copy is hereto attached, on the following grounds:

1, The applicants claim interests relating to the

transaction which is the subject of the above-entitled

action, and they are so situated that the disposition of

the action may, as a practical matter, impair or im-

pede their ability to protect their intersts.

2. Applicants’ claims as set forth in their proposed

complaint arise out of the main action in the above-

entitled case and have questions of law and fact in

common.

3. Granting this motion for intervention will not

unduly delay or prejudice the adjudication of the

rights of the original parties.

—357—

4. Applicants are end users of the pipe described

in the complaint of plaintiff State of Utah and have

purchased substantial amounts of said pipe during the

periods described in said complaint. The amount of

said pipe purchased by applicants aggregates in ex-

cess of $20,000,000. Applicants are members of the

class which the State of Utah has sought to represent in

the above-entitled action and which was defined in the

complaint of the State of Utah to include public

bodies, political subdivisions and districts of the State

of Utah who are end users of pipe acquired from the

defendants, co-conspirators and others. As members of

said class, applicants would have relied upon the State

of Utah to represent their interests in this action; how-

ever, the Court’s Findings of Fact and Order Respecting

Class Action which was entered on December 4, 1969

makes it mandatory for applicants to seek to intervene

in order to protect their interests.

5. As members of the class alleged by the State of

Utah in its complaint, applicants have inchoate interests

in this action.

6. Unless applicants are allowed to intervene in

this action, they may have no other means available

by which to present their claims to a court.

Dated this 11th day of December, 1969.

David K. Holther, Esq.

Counsel for Weber Basin

Water Conservancy District,

Ogden River Water Users

Joseph Novak, ~~

Counsel for etropolitan

Water District of Salt Lake

City

Milton J. Hess, Esq.

Counsel for Central Davis

County Sewer District

Felshaw King,

Counsel for North Davis

County

Dave McMullin, Esq.

City Attorney for Payson

Allen Tibbals, Esq.

City Attorney for West Jordan

Whitney D. Hammond, Esq.

City Attorney for Voruat

Paul Merrill, Esq.

City Attorney for Salem

Robert J, Sumsion, Esq.

City Attorney for Springville

L. Robert Esq.

oe ee ee

= City Attorney for Bland-

Ben G. Bagley, Esq.

City Adin tt Midvale

Dilworth W: , Esq.

Harvard I. Hinton, Esq.

City Attorney for Lehi

V. Litizzette, Esq.

City Attorney for Helper

MULLINER, PRINCE & MANGUM

Gerald R. Miller

Denis R. Morrill

NESLEN & MOCK

Kent Shearer

By /s/ Gerald R. Miller

Special Assistant Attorneys

General State of Utah

Attorneys for Applicants

for Intervention

206 El Paso Natural Gas Bldg.

Salt Lake City, Utah 84111

tlc

Attachment to Motion to Intervene as Plaintiff

Intervenors’ Complaint [Proposed].

(Jury Demanded).

United States District Court, Central District of Cali-

fornia, Civil No. 69-1964-MP.

[Title omitted in printing]

Intervenors, and each of them, by their attorneys,

intervene in this civil action on their own behalf to

secure treble the amount of damages suffered by each

of them due to the defendants’ violations of the anti-

trust laws of the United States. Intervenors demand a

trial by jury and allege as follows:

FIRST CAUSE OF ACTION

I

JURISDICTION AND VENUE

1. This complaint is filed and the jurisdiction of

this Court is invoked under the provisions of Section 4

of the Act of Congress of October 15, 1914, c. 323, 38

Stat. 731, as amended, (15 U.S.C. § 15), entitled “An

Act to supplement existing laws against unlawful re-

straints and monopolies, and for other purposes,” com-

monly known as the Clayton Act, to recover damages

for injuries to their business or property which the in-

tervenors have sustained due to violations by the de

fendants of Section 1 of the Act of Congress of July 2,

1890, c. 647, 26 Stat. 209, as amended, (15 U.S.C.

§ entitled “An Act to protect trade and commerce

ag unlawful restraints and monopolies,” commonly

known as the Sherman Act.

2. The complaint of the plaintiff State of Utah was

filed on May 13, 1969 in the District of Utah. Each

corporate defendant maintains an office, transacts busi-

—361—

ness, is found, resides, or has an agent in the District

of Utah, and each of said corporate defendants was

within the jurisdiction of that court for the purpose of

service. Each of the defendants in this case was served

and has entered appearance through counsel.

3. The interstate trade and commerce described

herein is carried on in part within the District of Utah.

Many of the unlawful acts done pursuant to the com-

bination and conspiracy herafter alleged have been per-

formed within the District’of Utah.

4. This Court has jurisdiction of the above-entitled

matter for coordinated or consolidated pretrial pro-

ceedings pursuant to the order of the Judicial Panel on

Multidistrict Litigation which was entered on August

28, 1969.

I

| DEFINITIONS

5. As used herein the term:

(a) “Steel small diameter pressure pipe” (herein re-

ferred to as “steel SDP pipe”) means thin-walled welded

steel pipe which is manufactured in diameters of 4

inches to 48 inches and sold for the conveyance of

water or sewage under internal pressure exceeding 115

feet of head or 50 pounds per square inch.

(b) “Alternate small diameter pressure pipe” (here-

in referred to as “alternate SDP pipe) means small

diameter pressure pipe (herein referred to as “SDP

pipe”) which is manufactured and sold or offered for

sale on jobs where the specifications permit the use of

either concrete SDP or steel SDP pipe.

(c) “Steel large diameter pressure pipe” (herein

referred to as “steel LDP pipe”) means heavy-walled

36a

welded steel pipe which is manufactured in diameters

of over 24 inches and sold for the conveyance of

water and sewage under internal pressures exceeding

115 feet of head or 50 pounds per square inch.

(d) “Alternate large diameter pressure pipe” (here-

in referred to as “alternate LDP pipe”) refers to large

diameter pressure pipe (herein referred to as “LDP

pipe”) which is manufactured and sold or offered for

sale on jobs where the specifications permit the use of

either concrete LDP pipe or steel LDP pipe. The speci-

fications for alternate LDP pipe customarily require that

the pipe be lined and/or coated with concrete.

(e) “Concrete pipe” means pipe constructed of con-

crete either with or without metal components as here-

inafter defined to convey water and sewage and in-

cludes both pressure and nonpressure pipe.

(f) “Metal components” refers to the steel plates,

sheets, skelp, rods, wire and/or mesh used in the manv-

facture of concrete pipe and to the steel plate and sheets

used in the manufacture of steel SDP and LDP pipe.

(g) “Western Area” refers to the states of Cali-

fornia, Oregon, Washington, Arizona, New Mexico,

Utah, Wyoming, Nevada, Idaho and Hawaii.

(h) “Public end users” means the State of Utah

and its political subdivisions and districts who, as con-

sumers, purchase and install or have installed any of

the types of pipe above defined in systems primarily for

the conveyance of drinking water and sewage under

pressure and for drainage, irrigation, flood control and

similar purposes.

-—

—363—

Ii

DESCRIPTION OF THE PARTIES

6. Plaintiff, the State of Utah, through its depart-

ments, divisions, agencies, institutions, universities and

colleges, is an end user of the types of pipe herein de-

fined acquired from defendants, co-conspirators and

others directly or indirectly.

7, Intervenors are political subdivisions of the State

of Utah, including counties, cities and municipalities,

and also including districts comprising public entities

organized under the laws of Utah, including sewer and

water districts. Each of the intervenors are end users

of the pipe herein defined acquired from defendants, co-

conspirators and others directly or indirectly.

8. The intervenors own, construct, alter, maintain

and operate water and sewage projects, highways and

other facilities for the rendering of public services and

by means of awarding public construction contracts,

acquire materials and services including pipe as de-

fined herein.

9. Defendants:

(a) Defendant American Pipe and Construction

Company (hereinafter called “American”) is a corpora-

tion existing under the laws of the State of California

with its principal place of business in Monterey Park,

California. American is engaged, among other things,

in the business of manufacturing or furnishing and sell-

ing and offering for sale of some one or more of the

types of pipe defined herein to customers within the

Western Area.

(b) Defendant United Concrete Pipe Corporation

(hereinafter called “United”) is a corporation organ-

=

ized and existing under the laws of the State of Califor.

nia with its principal place of business in Baldwin Park,

California. United is engaged, among other things, in the

business of manufacturing or furnishing and selling and

offering for sale of some one or more of the types of

pipe defined herein to customers within the Westem

Area,

(c) Defendant Utah Concrete Pipe Company (here-

inafter called “Utah Pipe”) is a corporation organized

and existing under the laws of the State of Utah with

its principal place of business in Ogden, Utah. Utah

Pipe is engaged, among other things, in the business

of manufacturing or furnishing and selling and offering

for sale of some one or more of the types of pipe defined

herein to customers within the Western Area.

(d) Defendant W. R. White Company (hereinafter

called “White”) is a corporation organized and existing

under the laws of the State of Utah with its principal

place of business in Ogden, Utah. White is engaged, ©

among other things, in the business of manufacturing

or furnishing and selling and offering for sale of some

one or more of the types of pipe defined herein to

customers within the Western Area.

(e) Defendant United States Steel Corporation (here-

inafter called “U.S. Steel”) is a New Jersey corporation

which in 1948 acquired the Consolidated Western Steel

Corporation, which during the period of the conspiracy

herein alleged it operated as a division of U.S. Steel.

During this time U.S. Steel, among other things, en-

gaged in the business of manufacturing or furnishing and

selling and offering for sale of some one or more of the

types of pipe defined herein to customers within the

Western Area.

—365—

‘(f) Defendant Kaiser Steel Corporation (hereinafter

called “Kaiser”) is a corporation organized and existing

under the laws of the State of Nevada with its princi-

pal place of business in Oakland, California. Kaiser was,

during the period of time covered by this complaint,

engaged, among other things, in the business of manu-

facturing or furnishing and selling and offering for sale

of some one or more of the types of pipe defined

herein to customers within the Western Area.

(g) Defendant Smith-Scott, Inc. (hereinafter called

“Smith-Scott”) is a corporation organized and existing

under the laws of the State of California, with its princi-

pal place of business in Riverside, California. Smith-

Scott, among other things, is engaged in the business of

manufacturing or furnishing and selling and offering

for sale of some one or more of the types of pipe de-

fined herein to customers within the Western Area.

(h) Defendant U.S. Industries, Inc. (hereinafter

called “U.S.I.”) is a Delaware corporation which in

1955 purchased the assets of Southern Pipe and Casing,

which during the period of the conspiracy herein alleged,

it operated as the Tubular Products Division of U.S.I.

with offices in Azusa, California. During the period of

the conspiracy herein alleged, U.S.I, through its Tubu-

lar Products Division, engaged in the business of

manufacturing or furnishing and selling and offering

for sale of some one or more of the types of pipe

defined herein to customers within the Western Area.

10. Martin-Marietta Corporation (hereinafter called

“Martin-Marietta”) and various other corporations,

partnerships and individuals engaged in the business of

manufacturing or furnishing and selling and offering for

sale of some one or more of the types of pipe defined

—366—

herein to customers within the Western Area, are named

as co-conspirators herein. Each of them participated with

defendants and with other co-conspirators in the offense

charged and performed acts and made statements in fur-

therance thereof.

IV

NATURE OF TRADE AND COMMERCE

11. The defendants Smith-Scott, U.S.I. and US.

Steel are the principal manufacturers of steel SDP

pipe in the Western Area. Total sales of steel SDP

pipe by these defendants during the period May, 1958

through January, 1962 averaged at least $13,500,000

annually.

12. Defendants American, Smith-Scott, U.S.L, US.

Steel and United are the principal manufacturers of

alternate SDP pipe in the Western Area. Total sales of

alternate SDP pipe by these defendants during the peri-

od 1957 through 1961 inclusive averaged approximately

$18,000,000 annually.

13. The defendants American, Kaiser, United and

U.S. Steel are the principal manufacturers of alternate

LDP pipe in the Western Area. Total sales of alternate

LDP pipe by these defendants during the period 1958

through 1961 inclusive averaged at least $15,000,000

annually.

14. The defendants Kaiser and U.S. Steel are the

principal manufacturers of steel LDP pipe in the West-

ern Area. Total sales of steel LDP pipe by these defend-

ants during the period 1958 through 1961 inclusive,

averaged at least $7,000,000 annually.

15. The defendants American and United are the

principal manufacturers of concrete pipe in the Western

Area. Total sales of concrete pipe by these defendants

-—

—367—

during the period 1958 through 1961 inclusive averaged

at least $41,500,000 annually.

16. The defendants Utah Pipe and White are manu-

facturers and vendors of some of the types of con-

crete pipe defined in this complaint. During the period of

the conspiracy alleged herein said defendants were sig-

nificant market factors in at least Utah, a part of the

Western Area.

17. The co-conspirator Martin-Marietta is a manu-

facturer and vendor of concrete pipe of the types defined

in this complaint. During the period of the conspiracy

alleged herein Martin-Marietta was a significant market

factor in the Western Area.

18. The construction of systems utilizing the types

of pipe herein defined is customarily contracted for by

the public end user with general contractors on the

basis of competitive bids. Where it is appropriate and de-

sired by the end user, the end user drafts or has drafted

specifications allowing the use of steel LDP or SDP,

concrete or either steel or concrete LDP or SDP pipe in

the alternative.

19. Prior to submitting bids to the end user, the

general contractor usually solicits quotations from pipe

manufacturers for the purchase price of the pipe deliv-

ered to the site where it is to be installed. The award

winning contractor usually contracts for the purchase

of the pipe from the low quoting pipe manufacturer at

the price quoted by the latter. Occasionally the end

user contracts directly with the pipe manufacturer for

the purchase of said pipe and usually on the basis of

competitive bidding.

20. The specifications for alternate LDP pipe cus-

tomarily require that the pipe be lined and/or coated

—368—

with concrete. When the steel LDP pipe manufacturers

plan to submit bids or quotations or an alternate LDP

pipe job, they in turn solicit quotations or bids from

the concrete LDP pipe manufacturers for the perform-

ance of this service. The cost of this service is then in-

corporated in the quotation or bid submitted to the gen-

eral contractors or end users by the steel LDP pipe

manufacturer.

21. Because of the relatively limited number of

manufacturers of the type of pipe defined in this com-

plaint, general contractors and end users frequently so-

licit quotations and bids from manufacturers outside

the state where said pipe is to be installed. Manufactur-

ers of said pipe usually manufacture the pipe for a par-

ticular job only after receiving an order for it. Said man-

ufacturers customarily identify each section of pipe so

as to designate its position in the pipeline and deliver

or have delivered said pipe directly te the trench site

or as near as possible to the place where it will be in-

stalled. During the period of the conspiracies herein

alleged, the defendants herein have manufactured sub-

stantial quantities of the types of pipe herein defined

at their plants within the Western Area and elsewhere,

and in response to solicitations calling for bids on the

types of pipe herein defined have sold, shipped and

delivered said pipe to job sites outside the state where

it was manufactured. Numerous of these job sites were

and are situated within the State of Utah, thus the types

of pipe herein defined move in a continuous and un-

interrupted flow from the place of manufacture, includ-

ing the plants of the defendants herein to points of in-

stallation outside the state where said pipe was manu

factured.

—369—

22. Steel SDP pipe and steel LDP pipe are fabri-

cated largely from steel sheet and plate. Most

pipe is manufactured with metal components to strength-

en the pipe, and particularly with respect to concrete

pressure pipe to make it watertight. The defendant man-

ufacturers purchase or produce said steel plate or metal

components in anticipation of orders for or to enable

them to fill existing orders for the types of pipe herein

defined, except nonreinforced concrete pipe. Substan-

tial quantities of the steel plate or metal components

which the defendants use in manufacturing the types of

pipe herein defined, except nonreinforced concrete pipe,

are produced outside the state where said pipe is man-

ufactured. The movement in interstate commerce of the

steel plate and metal components is necessary to the

manufacture and sale of said pipe by the defendants

in the Western Area, and the defendants and co-con-

spirators are conduits through which said steel plate

and metal components flow in a continuous and unin-

terrupted stream in interstate commerce from the place

where said steel plate or metal components are pro-

duced to the place within the Western Area where

they are fabricated into the types of pipe herein de-

fined and on to the installation site.

23. Any restraint upon free competition in the

production or sale of the types of pipe herein defined

in the Western Area necessarily and directly affects the

interstate flow of said pipe and the interstate flow

of the sheet and steel plate and the metal components

utilized in the manufacture of all of said types of pipe,

except nonreinforced concrete pipe.

=

id

OFFENSES CHARGED

24. Beginning prior to the year 1954 in the case of

concrete pipe and prior to the year 1958 in the case

of steel pipe and probably as far back as 1946 in both

cases and continuing so far as intervenors know to

the date of the filing of this complaint, the defendants

and co-conspirators engaged in an unlawful combina-

tion and conspiracy to eliminate competition and stabi-

lize and maintain the prices of the herein defined types

of pipe, thereby restraining the hereinabove described

interstate trade and commerce in violation of Section 1

of the Act of Congress of July 2, 1890, as amended,

15 U.S.C. § 1, commonly known as the Sherman Act.

25. The aforesaid combination and conspiracy con-

sisted of a continuing agreement, understanding and

concert of action among and between the defendants

and co-conspirators, the substantial terms of which

were:

(a) To submit collusive and rigged bids and quota-

tions in response to solicitations calling for bids and

quotes for the herein defined types of pipe.

(b) To allocate and divide orders for the purchase

of the herein defined types of pipe among themselves.

(c) To refrain from competing in the manufacture

of certain sizes and types of pipe in certain areas where

those sizes and types were manufactured by another de-

fendant or co-conspirator.

26. For the purpose of forming and effectuating

the aforesaid combination and conspiracy, the defend-

ants and co-conspirators did those things which, as here-

inabove alleged, they combined and conspired to do,

including, but not limited to the following:

—371—

(a) Defendants and co-conspirators held periodic

meetings to tally past orders and to discuss prospec-

tive orders for the purpose of allocating prospective

orders among themselves according to agreed upon per-

centages.

(b) At such meetings and in subsequent communica-

tions by telephone and other interstate communication

media, the defendants and co-conspirators agreed be-

tween and among themselves as to which manufacturer

would submit the low bid and what that bid would be

and which manufacturers would refrain from bidding or

would submit higher complementary bids not intended

to win awards and what those bids would be.

(c) At such meetings and at subsequent meetings,

defendants and co-conspirators would agree in certain

instances as to the types and sizes of pipe each would

manufacture and market in certain geographical areas

included in the Western Area.

VI

EFFECTS OF THE CONSPIRACY

27. The aforesaid combination and conspiracy

had, among others, the following effects:

(a) Competition between and among defendants and

co-conspirators has been restricted and suppressed.

(b) General contractors and end users were deprived

of the right to receive competitive bids and quotes for

the types of pipe herein defined and were deceived into

believing that collusive and noncompetitive bids and

quotes were competitive.

(c) Public end users and others engaged in the con-

veyance and distribution of water and sewage have

been denied the right to receive competitive sealed bids

~372-—

as required by law or practice or have been denied a

competitive market in connection with their purchases

and have been forced to pay high, artificially fixed

prices for the types of pipe herein defined.

(d) The cost of the types of pipe herein defined has

been arbitrarily increased, fixed and maintained.

(e) The business and property of intervenors, as in-

tended by the defendants and co-conspirators, were in-

jured in that they were compelled to pay higher prices

for the types of pipe herein defined than they would

have had to pay had it not been for the aforementioned

combination and conspiracy.

VII

TOLLING OF THE STATUTE OF

LIMITATIONS

28. Intervenors did not discover said combination

and conspiracy until the year 1969. Intervenors had no

knowledge of the said combination and conspiracy or

of any facts which might have led to the discovery

thereof until after March 10, 1964, when a United States

Grand Jury sitting in the Southern District of Cali-

fornia, Central Division, returned indictments num-

bered 33338-42 inclusive, setting out in large part the

combinations and conspiracies herein alleged. Inter-

venors could not have uncovered the conspiracy at an

earlier date by the exercise of due diligence inasmuch

as the unlawful conspiracy had been fraudulently

concealed by defendants and co-conspirators through

their adoption of elaborate schemes for submitting

sham and collusive bids which misrepresented the inde-

pendence and competitiveness thereof and their resort

to secrecy to avoid detection as hereinabove alleged.

—373—

29. Since March 10, 1964 and continuing through

and one year from the date of the entering of a Consent

Decree against the last re ining defendant in a govern-

ment case, said Consent Decree having been entered

on May 24, 1968, the running of the statute of limita-

tions has been suspended by reason of 15 U.S.C. § 16

(b), commonly referred to as § 5 (b) of the Clayton

Act because of the pendency of actions instituted by

the United States of America. This complaint is based

in part upon matters alleged in those government ac-

tions.

30. The defendants Utah Pipe and White were

neither defendants in the government actions nor named

co-conspirators. As to those defendants, intervenors have

no knowledge of the said combination and conspiracy

or any facts which might have led to the discovery

thereof prior to at least the year 1969. Intervenors could

not have uncovered the conspiracy as to, these defend-

ants at an earlier date by the exercise of due diligence

inasmuch as said defendants and other co-conspirators

acted together and individually by agteement to conceal

the existence of said combination and conspiracy and

the acts performed in furtherance thereof. Their adop-

tion of schemes for submitting sham and collusive bids

and quotations which misrepresented the independence

and competitiveness thereof is but one manifestation of

their resort to secrecy. 7

31. Intervenors are members of the class which the

State of Utah seeks to represent in the above entitled

action and which was defined in the complaint of the

State of Utah to include public bodies and agencies of

state and local government in the state of Utah who are

end users of pipe acquired from the defendants, co-

conspirators and others. As members of said class In-

; FF

—374—

tervenors would have relied upon the State of Utah to

represent their interests in this action, however, the

Court’s order entered on December 4, 1969 terminat-

ing the class action makes it mandatory for intervenors

to intervene in this matter in order to protect their in

terests.

VIII

INJURY TO INTERVENORS

32. Since at least 1946 intervenors have acquired

substantial quantities of the types of pipe herein de-

fined which have been manufactured by defendants,

co-conspirators and others. In acquiring said pipe inter-

venors have usually invited formal sealed competitive

bids from manufacturers directly or from prime contrac-

tors, and they have generally accepted the price offered

by the lowest responsible bidder. _

33. When acquiring said pipe directly from manv-

facturers intervenors have been led and induced by the

defendants and co-conspirators, as a result of the illegal

combination and conspiracy alleged herein, to make con-

tract awards at prices fixed by and influenced by said

illegal combination and conspiracy, and intervenors

have been denied the benefit of free and unrestricted

competition in their acquisition of said pipe. By the op-

eration of defendants’ and co-conspirators’ agreements

and concert of action herein alleged, intervenors have

been compelled to pay substantially higher prices than

would have been the case but for the violation of the

antitrust laws herein alleged.

34. When acquiring said pipe through prime con-

tractors, intervenors have been forced to make contract

awards on bids or quotes incorporating prices fixed by

and influenced by the defendants’ and co-conspirators’ il-

if TSan

legal combination and conspiracy, and intervenors have

been denied the benefit of free and unrestricted competi-

tion in their acquisition of said pipe. By the operation

of defendants’ and co-conspirators’ agreements and con-

cert of action herein alleged, intervenors have been com-

pelled to pay substantially higher prices than would

have been the case but for the violation of the antitrust

laws herein alleged.

35. As a result of the alleged illegal combination

and conspiracy, intervenors have been injured and

financially damaged by the defendants in an amount

which is presently undetermined. Intervenors specifical-

ly reserve the right to determine the exact amount of |

their injury and upon such determination or at such

other time as the court directs to amend this complaint

and set forth in said amendment or whatever other

means the court may direct, the exact amount of their

injury.

IX

ADDITIONAL CAUSES OF ACTION

ALTERNATIVE TO THE ABOVE

FIRST CAUSE OF ACTION

36. As additional causes of action alternative to the

above first cause of action intervenors allege that com-

mencing at least as early as the year 1954 and continu-

ing until at least 1962, the exact dates being unknown

to intervenors, the defendants and co-conspirators en-

gaged in a continuing course of conduct which consisted

of a series of combinations, conspiracies and agreements

in restraint of the aforesaid interstate trade amd com-

merce in the types of pipe herein defined. These com-

binations, conspiracies and agreements are described in

the following alternative causes of action. Intervenors

iS

herein allege and incorporate by reference in each of

the alternative causes of action as fully as though there

separately set out, Paragraphs I through IV, Paragraph

VI and Paragraph VII.

X

SECOND CAUSE OF ACTION

(Combination and Conspiracy Involving

Steel Small Diameter Pressure Pipe)

37. Beginning at least as early as May, 1958 and

continuing thereafter until at least January, 1962, the

exact dates being unknown to intervenors, the defend-

ants U.S. Steel, U.S.I. and Smith-Scott and co-conspira-

tors engaged in an unlawful combination and conspiracy

in restraint of the hereinabove described interstate trade

and commerce in steel SDP pipe in violation of Section

1 of the Act of Congress of July 2, 1890, c. 647, 26

Stat. 209, as amended, entitled “An Act to protect trade

and commerce against unlawful restraints and monop-

olies,” commonly known as the Sherman Act.

38. The aforesaid combination and conspiracy con-

sisted of a continuing agreement, understanding and

concert of action among said defendants and co-con-

spirators, the substantial terms of which were:

(a) To submit collusive and rigged bids and quota-

tions for the sale of steel SDP pipe; and

(b) To allocate and divide orders for the purchase

of SDP pipe among themselves.

39. For the purpose of forming and effectuating

and as a part of the aforesaid combination and con-

spiracy, said defendants did those things which, as

hereinabove alleged, they combined and conspired to

do, including, but not limited to the following things:

—377—

(a) Said defendants and co-conspirators held peri-

odic meetings to tally past orders and to discuss prospec-

tive orders for the purpose of allocating prospective

orders among said defendants and co-conspirators.

(b) At such meeting and in subsequent telephone

conversations said defendants and co-conspirators

agreed between and among themselves as to which

manufacturer would make the low bid, and what that

bid would be, and which manufacturers would submit

higher complementary bids not intended to win awards

on such jobs.

40. The aforesaid combination and conspiracy in

restraint of the interstate trade and commerce in the

types of pipe covered by this paragraph of the complaint

was carried out in the manner and with the effects de-

scribed in Paragraphs VI and VII.

41. Since at least 1946 intervenors have acquired

substantial quantities of the type of pipe covered in

this paragraph of the complaint which have been man-

ufactured by defendants, co-conspirators and others.

In acquiring said pipe, intervenors have usually invited

formal sealed competitive bids from manufacturers di-

rectly or from prime contractors, and they have gen-

erally accepted the price offered by the lowest respon-

sible bidder.

42. When acquiring said pipe directly from manu-

facturers, intervenors have been led and induced by the

defendants and co-conspirators as a result of the illegal

combination and conspiracy alleged herein, to make

contract awards at prices fixed by and influenced by

said illegal combination and conspiracy and intervenors

have been denied the benefit of free and unrestricted

competition in their acquisition of said pipe. By the

—378—

operation of defendants’ and co-conspirators’ agree.

ments and concert of action herein alleged, intervenors

have been compelled to pay substantially higher prices

than would have been the case but for the violation

of the antitrust laws herein alleged.

43. When acquiring said pipe through prime con-

tractors, intervenors have been forced to make contract

awards on bids or quotes incorporating prices fixed by

and influenced by said defendants’ and co-conspirators’

illegal combination and conspiracy, and intervenors

have been denied the benefit of free and unrestricted

competition in their acquisition of said pipe. By the

operation of defendants’ and co-conspirators’ agree-

ments and concert of action herein alleged, intervenors

have been compelled to pay substantially higher prices

than would have been the case but for the violation of

the antitrust laws herein alleged.

44. As a result of the alleged illegal combination

and conspiracy, intervenors have been injured and

financially damaged by the defendants in an amount

which is presently undetermined. Intervenors specifical-

ly reserve the right to determine the exact amount of

their injury and upon such determination or at such

other time as the court directs to amend this complaint

and set forth in said amendment or whatever other

means the court may direct, the exact amount of their

injury.

—379—

XI

THIRD CAUSE OF ACTION

(Combination and Conspiracy Involving

Alternate Small Diameter Pressure Pipe)

45. Beginning sometime prior to 1955 and con-

tinuing thereafter until at least January, 1962, the ex-

act dates being unknown to intervenors, the defendants

US. Steel, Smith-Scott, U.S.I., American and United

and co-conspirators engaged in an unlawful combina-

tion and conspiracy in restraint of the hereinbefore

described interstate trade and commerce in alternate

SDP pipe in violation of Section 1 of the Act of Con-

gress of July 2, 1890, as amended, 15 U.S.C. § i

commonly known as the Sherman Act.

46. The aforesaid combination and conspiracy con-

sisted of a continuing agreement, understanding and

concert of action among said defendants and co-con-

spirators to allocate and divide alternate SDP pipe

jobs so that the manufacturers of steel SDP pipe con-

sidered as a group on the one hand and the manu-

facturers of concrete SDP pipe considered together on

the other hand would each obtain an agreed upon per-

cent of all alternate SDP pipe jobs.

47. For the purpose of forming and effectuating

the aforesaid combination and conspiracy and as a

part thereof, said defendants and co-conspirators did

those things, which, as hereinbefore alleged, they com-

bined and conspired to do, including, but not limited

to the following:

(a) Tallies were maintained by representatives of

each defendant for the purpose of keeping a record of

whether a steel SDP pipe manufacturer or a concrete

SDP pipe manufacturer obtained each job. Information

900.

needed for such tallies was often obtained at ‘meetings

or by telephone conversations between said defendants

or co-conspirators.

48. Intervenors here reallege as fully as though

here set out Subparagraphs 40 through 44 of Para-

graph X.

XII

FOURTH CAUSE OF ACTION

(Combination and Conspiracy Involving

Alternate Large Diameter Pressure Pipe)

49. Beginning sometime prior to 1955 and con-

tinuing thereafter until at least August, 1962, the ex-

act dates being unknown to intervenors, the defendants

American, Kaiser, United and U.S. Steel and co-con-

spirators engaged in an unlawful combination and con-

spiracy in restraint of the hereinbefore described inter-

state trade and commerce in alternate LDP pipe in

‘violation of Section 1 of the Act of Congress of July

2, 1890, as arfiended, 15 U.S.C. § 1, commonly known

as the Sherman Act.

50. The aforesaid combination and conspiracy con-

sisted of a continuing agreement, understanding and

concert of action among said defendants and co-con-

spirators to allocate and divide solicitations for alternate

LDP pipe so that the manufacturers of steel LDP pipe

would obtain approximately 50 percent of the orders

resulting from said solicitations and the manufacturers

of concrete LDP pipe would obtain approximately 50

percent of the orders resulting from said solicitations,

the_amount of business involved in the lining and coat-

ing of the steel LDP pipe by the concrete LDP pipe

manufacturers being included in the share to be ob

tained by the concrete LDP pipe manufacturers.

we

—381—

51. For the purpose of forming and effectuating

the aforesaid combination and conspiracy and as a part

thereof, said defendants and co-conspirators did those

things which, as hereinbefore alleged, they combined

and conspired to do, including, but not limited to the

following:

(a) Tallies were maintained by representatives of

each defendant for the purpose of keeping a record of

whether a steel LDP pipe manufacturer or a concrete

LDP pipe manufacturer obtained each job. Informa-

tion needed for such tallies was often obtained at meet-

ings or by telephone conversations between said de-

fendants or co-conspirators.

52. Intervenors here reallege as fully as though

here set out Subparagraphs 40 through 44 of Paragraph

X.

XI

FIFTH CAUSE OF ACTION

- (Combination and Conspiracy Involving

Steel Large Diameter Pressure Pipe)

53. Beginning sometime prior to 1955 and con-

tinuing thereafter until at least August, 1962, the exact

dates being unknown to intervenors, the defendants

Kaiser and U.S. Steel and co-conspirators engaged in an

unlawful combination and conspiracy in restraint of the

hereinbefore described interstate trade and commerce

in steel LDP pipe in violation of Section 1 of the Act

of Congress of July 2, 1890, as amended, 15 U.S.C.

§ 1, commonly known as the Sherman Act.

—382—

54. The aforesaid combination and conspiracy con-

sisted of a continuing agreement, understanding and

concert of action among said defendants and co-con-

spirators, the substantial terms of which were:

(a) To submit collusive and rigged bids for the sale

of steel LDP pipe; and

(b) To allocate and divide orders for the purchase

of steel LDP pipe among themselves.

55. For the purpose of forming and effectuating

the aforesaid combination and conspiracy and as a part

thereof, said defendants and co-conspirators did those

things which, as hereinbefore alleged, they combined

and conspired to do, including, but not limited to the

following things:

(a) Said defendants and co-conspirators held pe-

riodic meetings to tally orders and to discuss prospective

orders for the purpose of allocating prospective orders

among said defendants and co-conspirators.

(b) At such meetings and in subsequent telephone

conversations said defendants and co-conspirators agreed

between and among themselves as to which manv-

facturer would make the low bid, and what that bid

would be, and which manufacturers would submit

higher complementary bids not intended to win

awards on such jobs.

56. Intervenors here reallege as fully as though here

set out Subparagraphs 40 through 44 of Paragraph X.

—383—

XIV

SIXTH CAUSE OF ACTION

(Combination and Conspiracy Involving

Concrete Pipe)

57. Beginning in or prior to the year 1954 and con-

tinuing thereafter until at least August, 1962 and con-

tinuing so far as intervenors know to the date of the fil-

ing of this complaint the defendants American, United,

Utah Pipe and White and co-conspirators engaged in

an unlawful combination and conspiracy in restraint of

the hereinbefore described interstate trade and com-

merce in concrete pipe in violation of Section 1 of the

Act of Congress of July 2, 1890, as amended, 15 U.S.C.

§ 1, commonly known as the Sherman Act.

58. The aforesaid combination and conspiracy con-

sisted of a continuing agreement, understanding and

concert of action among said defendants and co-conspir-

ators, the substantial terms of which were:

(a) To submit collusive and rigged bids for the sale

of concrete pipe;

(b) To allocate and divide orders for the purchase

of concrete pipe among themselves; and

(c) To refrain from competing in the manufacture

of certain sizes and types of concrete pipe in certain

areas where those sizes and types were manufactured by

another defendant or co-conspirator.

59. For the purpose of forming and effectuating the

aforesaid combination and conspiracy and as a part

thereof, said defendants and co-conspirators did those

things which, as hereinbefore alleged, they combined

and conspired to do, including, among others, the fol-

lowing things:

| Yo

(a) Said defendants and co-conspirators held peri-

odic meetings to tally past orders and to discuss pro.

spective orders for the purpose of allocating prospective

orders among said defendants and co-conspirators.

(b) At such meetings and in subsequent telephone

conversations defendants and co-conspirators agreed be-

tween and among themselves as to which manufacturer

would make the low bid, and what that bid would be,

and which manufacturers would submit higher comple

mentary bids not intended to win awards on such jobs.

60. Intervenors here reallege as fully as though here

set out Subparagraphs 40 through 44 of Paragraph X.

XV

PRAYER FOR RELIEF

WHEREFORE, intervenors pray as follows:

(1) That the alleged combination and conspiracy

among the defendants be adjudged and decreed to be

an unreasonable restraint of interstate trade and com-

merce in violation of Section 1 of the Sherman Act; and

(2) That each of the intervenors have and recov-

er from the defendants judgment for treble the amount

of the damages as will be shown by proof under their

first cause of action; or

(3) That each of the intervenors have and recover

from defendants judgments for treble the amount of

their damages as will be shown by proof under each

of their alternative causes of action; and

(4) That intervenors havé an injunctive decree for-

bidding the further employment against their interests

of those conspiratorial tactics hereinabove set forth; and

—335—

(5) That intervenors be awarded their litigation ex-

penses and a reasonable attorneys’ fee as required by

Section 4 of the Clayton Act (15 U.S.C. § 15); and

(6) That intervenors have such other and further

relief as the Court shall deem just and proper.

Dated this 11th day of December, 1969.

VERNON B. ROMNEY

Attorney General State of Utah

MULLINER, PRINCE & MANGUM

Gerald R. Miller

Denis R. Morrill

NESLEN & MOCK

Kent Shearer

/s/ Gerald R. Miller

Special Assistant Attorneys

General State of Utah

Attorneys for Intervenors

206 El Paso Natural Gas Bldg.

Salt Lake City, Utah 84111

Filed: December 12, 1969.

—$85—

Motion to Intervene as Plaintiffs.

United States District Court, Central District of Cali-

fornia.

State of Utah, et al., Plaintiffs, vs. American Pipe

and Construction Company, et al., Defendants, City of

Grantsville, et al., Applicants for Intervention. Civil No.

69-1964-MP.

Pursuant to Rule 24(a) (2); or in the alternative Rule

24(b)(2) of the Federal Rules of Civil Procedure,

the City of Grantsville, City of Sandy, City of Riverton,

Town of Perry, Town of Annabella and Salt Lake

County Cottonwood Sanitary District move to intervene

in the above-entitled action and hereby adopt and incor-

porate by reference herein the Motion heretofore filed

on December 12, 1969, on behalf of Weber Basin

Water Conservancy District; Salt Lake County Water

Conservancy District; Salt Lake City Suburban Sani-

tary District No. 1 and others, together with the plead-

ings in support of that Motion.

DATED this 29th day of December, 1969.

Richard Fox, Esq.

Counsel for City of Grantsville

Glenn C. Hanni, Esq.

Counsel for City of Riverton

O. Dee Lund, Esq.

Counsel for Town of Perry

Tex Olsen, Esq.

Counsel for Town of Annabella

—387—

Fred L. Finlinson, Esq.

Counsel for Salt Lake County Cottonwood

Sanitary District

John B. Anderson, Esq.

Counsel for Sandy City

VERNON B. ROMNEY

Attorney General State of Utah

MULLINER, PRINCE & MANGUM

Gerald R. Miller

Denis R. Morrill

NESLEN & MOCK

Kent Shearer

/s/ Denis R. Morrill

Special Assistant Attorneys

General State of Utah

Attorneys for Applicants for

Intervention

206 El Paso Natural Gas Building

Salt Lake City, Utah 84111

Filed December 29, 1969.

[Certificate of Mailing omitted in printing]

—388—

Affidavit in Support of Motion to Intervene.

United States District Court, Central District of Cali-

fornia.

State of Utah, et al., Plaintiffs, vs. American Pipe

and Construction Company, et al., Defendants. Civil

No. 69-1964-MP.

{Jurat omitted in printing]

FRED L. MONTMORENCY, being first duly

sworn, states that he is the Mayor of the City of South

Ogden, Utah, a municipal corporation of the State of

Utah. From approximately September of 1958 until the

year 1968, the City of South Ogden has purchased

significant amounts of concrete pipe from one or more

of the defendants in the above-entitled action, their

co-conspirators or others at a cost including installation

of approximately $531,000.00. Affiant estimates the

cost of said pipe, exclusive of installation cost, at ap-

proximately $235,000.00.

DATED this 9th day of December, 1969.

/s/ Fred L. Montmorency

FRED L. MONTMORENCY

Executed December 9, 1969.

[Notarial Acknowledgment omitted in printing].

~-389-—

Affidavit in Support of Motion to Intervene.

United States District Court, Central District of Cali-

fornia.

State of Utah, et al., Plaintiffs, vs. American Pipe

and Construction Company, et al., Defendants. Civil

No. 69-1964-MP.

[Jurat omitted in printing].

ROBERT B. HILBERT, being first duly sworn,

states that he is Secretary-General Manager of Salt

Lake County Water Conservancy District, a public

water district organized under the laws of the State of

Utah. During the period 1955 through 1964, Salt Lake

County Water Conservancy District has purchased ap-

proximately 219,000 lineal feet of concrete and steel

pipe from one or more of the defendants in the action

now pending, State of Utah versus American Pipe and

Construction Company; United Concrete Pipe Corpora-

tion; Utah Concrete Pipe Company; W. R. White Com-

pany; United States Steel Corporation; Kaiser Steel Cor-

poration; Smith-Scott, Inc.; U.S. Industries, Inc., at a

cost, exclusive of installation costs, of approximately

$1,600,000. During the period 1965 through 1969 Salt

Lake County Water Conservancy District has purchased

approximately 22,000 lineal feet of pipe at an approxi-

mate cost, exclusive of installation cost, of $350,000.

DATED this 9th day of December, 1969.

‘/s/ Robert B. Hilbert

Executed December 10, 1969.

[Notarial Acknowledgment omitted in printing].

— =

Affidavit in Support of Motion to Intervene.

United States District Court, Central District of Cali-

fornia.

State of Utah, et al., Plaintiffs, vs. American Pipe

and Construction Company, et al., Defendants. Civil

No. 69-1964-MP.

[Jurat omitted in printing].

JOHN J. WHEELWRIGHT, being first duly

pipe of the type described in the complaint

entitled action from one or more of the defendants in

the above-entitled action, co-conspirators or others at a

cost, including installation, of approximately $2,-

500,000.

/s/ John J. Wheelwright

Executed December 10, 1969.

[Notarial Acknowledgment omitted in printing].

—391—

Affidavit in Support of Motion to Intervene.

United States District Court, Central District of Cali-

fornia.

State of Utah, et al., Plaintiffs, vs. American Pipe

and Construction Company, et al., Defendants. Civil

No. 69-1964-MP.

[Jurat omitted in printing].

JESSE W. HESS, being first duly sworn, deposes

and says:

I am the Secretary-Treasurer of the South Davis

County Water Improvement District, a body politic

organized and existing under the laws of the State of

Utah and have held this position since 1955.

That during the period from 1954 through 1962 the

South Davis County Water Improvement District pur-

chased pipe as described in the Complaint on file here-

in from the above named defendants, co-conspirators, or

others at a cost of approximately $392,000.00 ex-

clusive of installation charges.

/s/ Jesse W. Hess

Jesse W. Hess, Secretary-Treasurer

South Davis County Water Improvement

District

Executed December 11, 1969.

[Notarial Acknowledgment omitted in printing]

tlle Ref

ot he

— wo

Affidavit in Support of Motion to Intervene.

United States District Court, Central District of Cali-

fornia.

State of Utah, et al., Plaintiffs, vs. American Pipe

and Construction Company, et al., Defendants. Civil

No. 69-1964-MP.

{Jurat omitted in printing]

GOLDEN W. STEWART, being first duly sworn,

states that he is Manager of Bountiful Water Sub

conservancy District, a public water district created

under the laws of the State of Utah. During the period

1958 through 1963, Bountiful Water Subconservancy

District has purchased approximately 416,156 lineal

feet of concrete and steel pipe from one or more of

the defendants in the action now pending, entitled

State of Utah versus American Pipe and Construction

Company; United Concrete Pipe Corporation; Utah

Concrete Pipe Company; W. R. White Company; United

States Steel Corporation; Kaiser Steel Corporation;

Smith-Scott, Inc.; U.S. Industries, Inc. For that pipe

Bountiful Water Subconservancy District has paid ap-

proximately $1,105,521.00, exclusive of installation

costs.

DATED this 15th day of December, 1969

-/s/ Golden W. Stewart

Executed December 15, 1969.

[Notarial Acknowledgment omitted in printing]

= =

Affidavit in Support of Motion to Intervene.

United States District Court, Central District. of Cali-

fornia. ,

State of Utah, et al., Plaintiffs, vs. American Pipe

and Construction Company, et al., Defendants. Civil

No. 69-1964-MP.

[Jurat omitted in printing]

WAYNE M. WINEGAR being first duly

states that he is Secretary-Manager of the Wet

Water Conservancy District. During the

through 1964, Weber Basin Water Conservancy

-trict has purchased approximately $1,800,000.00 worth

of concrete and steel pipe from one or more of the

defendants in the action now pending, State of Utah

versus American Pipe and Construction ‘Company;

United Concrete Pipe Corporation; Utah Concrete Pipe

Company; W. R. White Company; United States Steel

Corporation; Kaiser Steel Corporation: Smith-Scott,

Inc.; U.S. Industries, Inc. for non-Bureau of Recla-

mation projects. Approximately $9,000,000.00 ‘worth

of pipe has been purchased for Bureau of Reclamation

projects.

Wayne M. Winegar

Executed December 15, 1969.

[Notarial Acknowledgment omitted in printing]

—

Affidavit in Support of Motion to Intervene.

United States District Court, Central District of

California.

State of Utah, et al., Plaintiffs, vs. American Pipe

and Construction Company, et al., Defendants. Civil

No. 69-1964-MP.

[Jurat omitted in printing]

THERON PALMER, being first duly sworn, states

that he is General Manager of the Bona Vista Water

District, a water district organized under the laws of

the State of Utah. During the period 1957 through

1959, Bona Vista Water District purchased pipe of

the type described in the complaint in the above

entitled action from one or more of the defendants in

the above-entitled action, co-conspirators or others at

a cost of approximately $450,000, exclusive of installa-

tion.

/s/ Theron Palmer

Executed December 16, 1969.

[Notarial Acknowledgment omitted in printing]

=

Affidavit in Support of Motion to Intervene.

United States District Court, Central District of Cali-

fornia.

State of Utah, et al., Plaintiffs, vs. American Pipe

and Construction Company, et al., Defendants. Civil

No. 69-1964-MP.

[Jurat omitted in printing]

J. ALBERT SMITH being first duly sworn, states

he is General Manager of Salt Lake City Suburban

Sanitary District No. 2, a sewer district organized un-

der laws of the State of Utah. During the period of

1954 through 1964, said Sewer District purchased pipe

of the type described in the complaint in above-entitled

action from one or more of the defendants in said

action, co-conspirators or others at a cost of approx-

imately $130,256, exclusive of installation.

/s/ J. Albert Smith

Executed December 17, 1969.

[Notarial Acknowledgment omitted in printing]

—396—

Affidavit in Support of Motion to Intervene.

United States District Court, Central District of Cali.

fornia.

State of Utah, et al., Plaintiffs, vs. American Pipe

and Construction Company, et al., Defendants; Cha

No. 69-1964-MP. :

[Jurat omitted in printing]

CHARLES R. KELLEY, being first duly sworn,

states that he is the City Manager of Ogden City, a

Municipal Corporation of the State of Utah. During

the period of 1946 to 1954, inclusive, Ogden City

purchased pipe of the type described in the complaint

in the above entitled action from one or more of the

defendants named in that action, co-conspirators of

others at a cost of approximately $118,464.00, exclu

sive of installation.

During the period of 1955 through 1964, inclusive,

Ogden City purchased pipe of the type described in

the complaint in the above entitled action from one or

more of the defendants, co-conspirators or others at a

cost of approximately $195,930.00, exclusive of instal-

lation.

/s/ Charles R. Kelley

CHARLES R. KELLEY, City Manager

Executed December 17, 1969.

[Notarial Acknowledgment omitted in printing]

Affidavit in Support of Motion to Intervene.

»» United States District Court, Central District of Cali-

fornia. :

State of Utah, et al. Plaintiffs, vs. American Pipe

vand Construction Company, et al., Defendants. Civil

No. 69-1964-MP.

[Jurat omitted in printing]

Edward H. Southwick, being first duly sworn, states

that he is General Manager of the Weber-Box Elder

Conservation District, a water district organized under

the laws of the State of Utah. During the period 1959

through 1964, Weber-Box Elder Conservation District

_purchased pipe of the type described in the complaint

_in the above-entitled action from one or more of the

defendants in the above-entitled action, co-conspirators

or others at a cost of approximately $300,000, exclu-

sive of installation.

/s/ Edward H. Southwick

Executed December 18, 1969.

[Notarial Acknowledgment omitted in printing]

—999——-

Affidavit in Support of Motion to Intervene.

United States District Court, Central District of

California.

State of Utah, et al., Plaintiffs, vs. American Pipe

and Construction Company, et al., Defendants. Civil

No. 69-1964-MP.

[Jurat omitted in printing]

R. W. Christiansen, being first duly sworn on his

oath deposes and says: That he is the coordinator of

Nephi City, a municipal corporation of the State of

Utah; that he is the person most familiar with the rec-

ords of purchases of Nephi City from the defendants, or

any one of them, named in the above entitled cause;

that the only purchases which at this time can be

found from any of the named defendants are from

the defendant, Utah Concrete Pipe Company;

That the purchases made by Nephi City Corpora-

tion, from said defendant were made and paid for on

the following dates with the following warrant num-

bers and in the following amounts, to-wit:

Name Date Warrant No. Amount

Utah Concrete Pipe Co. 7/18/57 2036 $ 9,692.73

Utah Concrete Pipe Co. 8/8/57 2055 6,563.54

Utah Concrete Pipe Co. 10/17/57 2105 537.60

Utah Concrete Pipe Co. 9/9/64 3732 6,290.05

Total $23,083.92

and that the total thereof as above is $23,083.92.

That the foregoing is true and/correct to the, best

of my knowledge, information apid belief of the affi-

ant; and that he makes this affidavit for and on be

half of Nephi City, a Municipal Corporation.

/s/ R. W. Christiansen

Affiant

Executed December 22, 1969.

[Notarial Acknowledgment omitted in printing]

— =

Affidavit in Support of Motion to Intervene.

United States District Court, Central District of

State of Utah, et al., Plaintiffs, vs. American Pipe

and Construction Company, et al., Defendants. Civil

No. 69-1964-MP.

[Jurat omitted in printing]

CHARLES F. HULL, being first duly sworn, states

that he is Mayor of Roy City, a corporation organized

under the laws of the State of Utah. During the period

February 1, 1956 through January 11, 1965, Roy

City purchased pipe of the type described in the com-

plaint in the above-entitled action from one or more

of the defendants in the above-entitled action, co-con-

spirators or others at a cost of approximately $103,-

345.00, exclusive of installation.

/s/ Charles F. Hull

Charles F. Hull, Mayor

Executed December 22, 1969.

[Notarial Acknowledgment omitted in printing]

—400—

Affidavit in Support of Motion to Intervene.

United States District Court, Central District of

Californi

State of Utah, et al., Plaintiffs, vs. American Pipe

and Construction Company, et al., Defendants. Civil

No. 69-1964-MP.

[Jurat omitted in printing]

HOWARD J. MOODY being first duly sworn, states

he is General Manager of Sandy Suburban Improve-

ment District, a sewer district organized under laws of

the State of Utah. During the period of 1954 through

1964, said Sewer District purchased pipe of the type

described in the complaint in above-entitled action

from one or more of the defendants in said action, co-

conspirators or others at a cost of approximately $292,-

453.23, exclusive of installation.

/s/ Howard J. Moody

Executed December 23, 1969.

[Notarial Acknowledgment omitted in printing]

—401—

Affidavit in Support of Motion to Intervene.

United States District Court, Central District of Cali-

fornia.

State of Utah, et al., Plaintiffs, vs. American Pipe

and Construction Company, et al., Defendants. Civil

No. 69-1964-MP.

[Jurat omitted in printing]

L. L. Finlinson, being first duly sworn, states that

he is Mayor of Oak City Town Corporation, incorpo-

rated under the laws of the State of Utah. During the

period 1954 through 1964, Oak City Town Corpora-

tion purchased pipe of the type described in the com-

plaint in the above-entitled action from one or more

of the defendants in the above-entitled action, co-con-

spirators or others at a cost of approximately $991.86,

and during the period 1946 through 1954 at a cost of

approximately $1,718.48, exclusive of installation.

/s/ L. L. Finlinson

Executed December 24, 1969.

[Notarial Acknowledgment omitted in printing]

—402-—

Affidavit in Support of Motion to Intervene.

‘United States District Court, Central District of Cali-

State of Utah, et al., Plaintiffs, vs. American Pipe

and Construction Company, et al., Defendants. Ciyij

No. 69-1964-MP. |

[Jurat omitted in printing]

. Jay F. Harmer, being first duly sworn, states that

he is Mayor of the Pleasant Grove City Corporation;

a municipal corporation organized under the laws of

the State of Utah. During the period 1954 through

1964, Pleasant Grove City purchased pipe of the type

described in the complaint in the above-entitled action

from one or more of the defendants in the above-entitled

aim pe bi De lg

mately $26,500.00, exclusive of installation.

/s/ Jay F. Harmer

Executed December 24, 1969.

[Notarial Acknowledgment omitted in printing]

—403—

Affidavit in Support of Motion to Intervene.

- United States District Court, Central District of Cali-

fornia.

State of Utah, et al., Plaintiffs, vs. American Pipe

and Construction Company, et al., Defendants. Civil

No. 69-1964-MP.

[Jurat omitted in printing]

CLARENCE J. STOKER, being first duly sworn,

states that he is the City Manager of Clearfield City,

a municipal corporation organized under the laws of

the State of Utah. During the period 1956 through

1964 said municipal corporation of the State of Utah

purchased pipe of the type described in the complaint

in the above-entitled action from one or more of the

Defendants in the above-entitled action, co-conspirators

or others at a cost of approximately $55,649.63, exclu-

sive of installation.

/s/ Clarence J. Stoker

Clarence J. Stoker

Executed December 24, 1969.

[Notarial Acknowledgment omitted in printing]

State of Utah, et al., Plaintiffs, vs. American Pipe

and Construction Company, et al., Defendants. Civil

No. 69-1964-MP.

[Jurat omitted in printing]

FLOYD J. ERICKSON, being first duly swom,

states that he is the District Manager of the North

Davis County Sewer District, a Special Improvement

District organized under the laws of the State of Utah,

During the period 1956 through 1959 said improve.

ment district of the State of Utah purchased pipe of

the type described in the complaint in the above-cn-

titled action from one or more of the Defendants in the

above-entitled action, co-conspirators or others at a

cost of approximately $806,038.00, exclusive of instal-

lation.

/s/ Floyd J. Erickson

Floyd J. Erickson

Executed December 24, 1969.

[Notarial Acknowledgment omitted in printing]

—

Affidavit in Support of Motion to Intervene.

- United States District Court, Central District of Cali-

fornia.

of Utah, et al., Plaintiffs, vs. American Pipe

and Construction Company, et al., Defendants. Civil

No. 69-1964-MP.

[Jurat omitted in printing}

David B. Brinton, being first duly sworn, states that

he is General Manager of the Salt Lake City Suburban

Sanitary District, a sewer district organized under the

laws of the State of Utah. During the period 1954

through 1964, Salt Lake City Suburban Sanitary Dis-

trict purchased pipe of the type described in the com-

plaint in the above-entitled action from one or more of

the defendants in the above-entitled action, or co

conspirators or others at a cost of approximately

$1,153,200.00, exclusive of installation.

/s/ David B. Brinton

Executed December 24, 1969.

. [Notarial Acknowledgment omitted in printing]

"ee

Affidavit in Support of Motion to Intervene.

United States District Court, Central District of Cali.

State of Utah, et al., Plaintiffs, vs. American Pipe

ee re Defendants. Civil

No. 69-1964-MP. Ls

[Jurat omitted in printing]

RANDALL J. HEAPS, being first duly sworn, states

that he is the City Recorder of Layton City Corporatioa,

a municipality organized under the laws of the State

of Utah. During the period 1959 through 1964, Layton

City Corporation purchased pipe of the type described

in the complaint in the above-entitled action from one

or more of the defendants in the above-entitled action,

conspirators or others at a cost of - PapprOniaeny

$61,883.00, exclusive of installation.

/s/ Randall J. Heaps

Executed December 29, 1969.

[Notarial Acknowledgment omitted in printing]

witli cs

- Affidavit in Support of Motion to Intervene.

United States District Court, Central District of Cal-

forni

State of Utah, et al., Plaintiffs, vs. American Pipe

and Construction Company, et al., Defendants. Civil

No. 69-1964-MP.

[Jurat omitted in printing]

“DON C. PIERCE, being first duly sworn, states

that he is the City Recorder of Salem City Corpora-

tion, A Municipality, chartered under the laws of the

State of Utah. During the period 1946 through 1964,

Salem City Corp. purchased pipe of the type described

in the complaint in the above-entitled action from one

or more of the defendants in the above-entitled action,

co-conspirators or others at a cost of approximately

$105,000.00, exclusive of installation.

/s/ Don C. Pierce

Executed December 29, 1969. .

[Notarial Acknowledgment omitted in printing]

—408—

Affidavit in Support of Motion to Intervene.

United States District Court, Central District of Cali-

fornia.

State of Utah, et al., Plaintiffs, vs. American Pipe

and Construction Company, et al., Defendants. Civil

No. 69-1964-MP.

[Jurat omitted in printing]

Edward H. Southwick, being first duly sworn, states

that he is General Manager of the South Ogden Con-

servation District, a water district organized under

the laws of the State of Utah. During the period 1959

through 1964, South Ogden Conservation District pur-

chased pipe of the type described in the complaint in

the above-entitled action, co-conspirators or others

at a cost of approximately $140,000, exclusive of in-

stallation.

/s/ Edward H. Southwick

Executed December 30, 1969.

[Notarial Acknowledgment omitted in printing]

—409—

Affidavit in Support of Motion to Intervene.

United States District Court, Central District of

California.

State of Utah, et al., Plaintiffs, vs. American Pipe

and Construction Company, et al., Defendants. Civil

No. 69-1964-MP.

[Jurat omitted in printing]

J. Bracken Lee, being first duly sworn, states that

he is the Mayor of Salt Lake City, a municipal cor-

poration of the State of Utah. During the period 1954

through 1964, Salt Lake City Corporation purchased

pipe of the type described in the complaint in the

above-entitled action from one or more of the defend-

ants in the above-entitled action, co-conspirators or

others, at a cost of approximately $3,350,000, ex-

clusive of installation; and during the period 1946

through 1953, Salt Lake City Corporation purchased

pipe of the type described in the complaint in the

above-entitled action from one or more of the defend-

ants in the above-entitled action, co-conspirators or

others, at a cost of approximately $1,500,000, exclu-

sive of installation.

/s/ J. Bracken Lee

J. Bracken Lee

Executed December 31, 1969.

[Notarial Acknowledgment omitted in printing]

—4l(e

Affidavit in Support of Motion to Intervene.

United States District Court, Central District of

California.

State of Utah, et al., Plaintiffs, vs. American Pipe

and Construction Company, et al., Defendants. Civil

No. 69-1964-MP. ;

{Jurat omitted in printing]

ARNOLD ANDERSON, being first duly sworn,

states that he is City Manager of the City of Cedar

City, a corporation organized under the laws of the

State of Utah. During the period 1952 through 1960,

Cedar City purchased pipe of the type described in

the complaint in the above-entitled action from one or

more of the defendants in the above-entitled action,

co-conspirators or others at a cost of approximately

$268,212.00, exclusive of installation.

/s/ ARNOLD E. ANDERSON

Arnold Anderson

Executed December 31, 1969.

[Notarial Acknowledgment omitted in printing]

—41 1-~

Affidavit in Support of Motion to Intervene.

United States District Court, Central District of

California.

State of Utah, et al., Plaintiffs, vs. American Pipe

and Construction Company, et al., Defendants. Civil

No. 69-1964-MP.

[Jurat omitted in printing]

HENRY BECKSTEAD, being first duly sworn, states

that he is Mayor of the City of Midvale, a corporation

organized under the laws of the State of Utah. During

the period 1954 through 1964, Midvale City purchased

pipe of the type described in the complaint in the above-

entitled action from one or more of the defendants in

the above-entitled action, co-conspirators or others at

a cost of approximately $77,387.87, exclusive of in-

‘stallation.

Executed December 31, 1969.

[Notarial Acknowledgment omitted in printing]

—412—

Affidavit in Support of Motion to Intervene.

United States District Court, Central District of

California.

State of Utah, et al., Plaintiffs, vs. American Pipe

and Construction Company, et al., Defendants. Civil

No. 69-1964-MP.

[Jurat omitted in printing]

. JACK A. RICHARDS, being first duly swom,

states as follows:

I am the Ogden City Attorney. I am also counsel

for Bona Vista Water Improvement District. On or

about February 19, 1969, I met with Gerald R. Miller

and John K. Mangum of the firm of Mulliner, Prince

& Mangum. D. Jay Wilson, the Weber County Attor-

ney, was also present at the meeting. Messrs. Miller

and Mangum advised us that they had been retained

by the State of Utah as Special Assistant Attorneys

General in connection with a private treble damage

civil antitrust matter involving steel and concrete pipe.

The proposed litigation was discussed generally, and

I was advised that the State of Utah contemplated a

class action on behalf of all of its counties, cities and

other governmental entities. The above-entitled action

was subsequently filed in the District of Utah, and as

the Ogden City Attorney and counsel for Bona Vista

Water Improvement District, I relied upon the class

action as a means of protecting the interests of the

City of Ogden and the Bona Vista Water Improvement

District and a procedural vehicle by which their claims

could be presented to the Court.

/s/ Jack A. Richards

JACK A. RICHARDS

Executed January 4, 1970.

[Notarial Acknowledgment omitted in printing]

—413—

Affidavit in Support of Motion to Intervene.

United States District Court, Central District of

California.

State of Utah, et al., Plaintiffs, vs. American Pipe

and Construction Company, et al., Defendants. Civil

‘No. 69-1964-MP.

[Jurat omitted in printing]

DAVID B. BRINTON, being first duly sworn, states

as follows:

I am General Manager of the Salt Lake City Sub-

urban Sanitary District, a sewer district organized under

the laws of the State of Utah. During 1969, I had oc-

casion to discuss the above-entitled case with Gerald

R. Miller. He advised me that he had been retained

by the State of Utah as a Special Assistant Attorney

General to prosecute a private treble damage civil anti-

trust action involving concrete and steel pipe. In view

of the substantial purchases of pipe made by the Salt

Lake City Suburban Sanitary District between the years

1954 and 1964, I was, of course, interested in this

matter. Accordingly, I made some effort to keep ad-

vised as to developments in this case. The Salt Lake

City Suburban Sanitary District was relying on the

class action which was brought by the State of Utah

as a procedural vehicle through which it could present

its claims to the Court. Upon receiving notice of the

Court’s ruling in regard to the class action, the Salt

Lake City Suburban Sanitary District promptly author-

ized the Attorney General of the State of Utah and

the attorneys previously retained by him to represent

its interest as a named party.

/s/ David B. Brinton

DAVID B. BRINTON

Executed January 4, 1970.

[Notarial Acknowledgment omitted in printing]

—414—

Affidavit in Support of Motion to Intervene.

United States District Court, Central District of

Californi

State of Utah, et al., Plaintiffs, vs. American Pipe

and Construction Company, et al., Defendants. Civil

No. 69-1964-MP.

[Jurat.omitted in printing]

DOREN B. BOYCE, being first duly sworn, states

that he is Manager of the Central Weber Sewer Im-

provement District, a sewer improvement district or-

ganized under the laws of the State of Utah. During

the period beginning with the calendar year 1956 and

ending with the calendar year of 1966, the Central

Weber Sewer Improvement District purchased pipe of

the type described in the complaint in the above-entitled

action from one or more of the defendants in the

above-entitled action, co-conspirators or others at a cost

of approximately $627,000.00, exclusive of installa-

tion.

/s/ Doren B. Boyce

Executed January 5, 1970. :

[Notarial Acknowledgment omitted in printing]

—415—

Affidavit in Support of Motion to Intervene.

United States District Court, Central District of

California.

State of Utah, et al., Plaintiffs, vs. American Pipe

and Construction Company, et al., Defendants. Civil

No. 69-1964-MP.

[Jurat omitted in printing]

RICHARD A. CHAMBERS, being first duly sworn,

states that he is Mayor of Logan City, a municipal

corporation of the State of Utah. During the period

1947 through 1964, Logan City purchased pipe of the

type described in the complaint in the above-entitled

action from. one or more of the defendants in the above-

entitled action, co-conspirators or others at a cost of

approximately $534,874.74, exclusive of installation.

/s/ Richard A. Chambers

Executed January 8, 1970.

[Notarial Acknowledgment omitted in printing]

—416—

Affidavit in Support of Motion to Intervene.

United States District Court, Central District of

State of Utah, et al., Plaintiffs, vs. American Pipe

and Construction Company, et al., Defendants. Civil

No. 69-1964-MP. 9

[Jurat omitted in printing]

JACK L. CRELLIN, being first duly sworn, states

as follows; |

I am the Salt Lake City Attorney. On or about

February 3, 1969, I met with Gerald R. Miller and

John K. Mangum of the firm of Mulliner, Prince &

Mangum. At that time they advised me that their firm

had been retained and that they had been designated

Special Assistant Attorneys General to represent the

State of Utah in a treble damage civil antitrust action

against certain manufacturers and vendors of concrete

and steel pipe. We discussed the contemplated litiga-

tion and determined that it would be proper and de-

sirable to file the case as a class action, with the

State of Utah representing all members of the class,

including Salt Lake City. Subsequently, I have had

many conversations with one or more of the attorneys

retained by the State of Utah in the above-entitled

matter. Most of these conversations were for the pur-

pose of advising Salt Lake City as to the developments

in the above-entitled case. I have also assisted the

State of Utah in obtaining transaction information

from various departments of Salt Lake City. As the

Salt Lake City Attorney, I have been aware of the

above-entitled case, and I have made an effort to fol

low its progress. Salt Lake City relied on the class

action filed by the State of Utah as the vehicle through

which it could present to the Court its claims against

these same defendants.

/s/ Jack L. Crellin

JACK L. CRELLIN

Executed January 9, 1970.

—417—

Affidavit in Support of Motion to Intervene.

United States District Court, Central District of

California.

State of Utah, et al., Plaintiffs, vs. American Pipe

and Construction Company, et al., Defendants. Civil

No. 69-1964-MP.

[Jurat omitted in printing]

NED F. WILSON, being first duly sworn, states that

he is the City Recorder of Lehi City Corporation, a

municipal corporation organized under the laws of the

State of Utah. During the period 1959 through 1963,

Lehi City Corporation purchased pipe of the type de-

scribed in the complaint in the above-entitled action

from one or more of the defendants in the above-

entitled action, co-conspirators or others at a cost of

approximately $44,490.00, exclusive of installation.

/s/ Ned F. Wilson

City Recorder

Executed January 12, 1970.

[Notarial Acknowledgment omitted in printing]

antl ian

Affidavit in Support of Motion to Intervene. |

United States District Court, Central District: of

California.

State of Utah, et-al., Plaintiffs, vs. American Pipe

and Construction Company, et al., Defendants. Civil

No. 69-1964-MP.

[Jurat omitted in printing]

GORDON B. CHRISTENSON, being first’ duly

sworn, states as follows:

I am the Salt Lake County Attorney. On or about

February 4, 1969, I met with Gerald R. Miller and

John K. Mangum of the firm of Mulliner, Prince &

Mangum and Kent Shearer of the firm of Neslen &

Mock. These gentlemen advised me that they had been

retained by the State of Utah to represent the State

in connection with a treble damage civil antitrust ac-

tion involving the purchase of steel and concrete pipe.

I was advised that the State of Utah contemplated a

class action on behalf of all of its counties, cities and

other governmental bodies. Because of the workload in

my office and the lack of expertise in antitrust matters,

I determined to rely on the class action which would

be brought by the Attorney General as the procedural

vehicle through which the claims of Salt Lake County

. could be presented to the Court. Upon receipt of the

notice of the Court’s ruling in regard to the class ac

tion in the above-entitled case, the Salt Lake County

Commission promptly authorized the Attorney General

and the Special Assistant Attorneys General, retained

. by him to represent Salt Lake County as a named

party in this action.

/s/ Gordon B. Christenson

GORDON B. CHRISTENSON

Executed January 12, 1970.

[Notarial Acknowledgment omitted in printing]

—419—

Affidavit in Support of Motion to Intervene.

United States District Court, Central District of Cali-

fornia.

State of Utah, et al., Plaintiffs, vs. American Pipe

and Construction Company, ef al., Defendants. Civil

No. 69-1964-MP.

[Jurat omitted in printing]

GLENN W. ADAMS, being first duly sworn, states

as follows:

I am the lawyer for Central Weber Sewer Improve-

ment District. On or about February 19, 1969, I met

with Gerald R. Miller and John K. Mangum of the

firm of Mulliner, Prince & Mangum. They advised me

‘ that they had been retained by the Attorney General

as Special Assistant Attorneys General to represent the

State of Utah in connection with a private treble dam-

age civil antitrust action against certain manufacturers

and suppliers of concrete and steel pipe. We dis

cussed this matter generally, and I was advised that

the State of Utah intended to bring a class action on

behalf of all of its counties, cities and other govern-

mental entities. Following that meeting, I had several

other conversations with one or more of the attorneys

representing the State of Utah. As counsel for Central

Weber Sewer Improvement District, I made an effort

to keep advised of the developments in the above-en-

titled case. On various dates I reported on this matter

to the trustees of the Central Weber Sewer Improve-

ment District. That district was relying upon the class

action brought by the State of Utah and expected in

due time to present its claims to the Court as a mem-

ber of said class.

/s/ Glenn W. Adams

GLENN W. ADAMS

_Executed January 13,. 1970.

[Notarial Acknowledgment omitted in printing]

oe

Affidavit in Support of Motion to Intervene.

United States District Court, Central District of Cali.

fornia.

State of Utah, et al., Plaintiffs, vs. American Pipe

and Construction Compariy, et al., Defendants. Civil

No. 69-1964-MP. |

[Jurat omitted in printing]

Glenn A. Wright, being first duly sworn, states that

he is the duly acting and appointed City Engineer for

Provo City Corporation, a municipal corporation of the

State of Utah. During the period from 1946 to 1954,

inclusive, the City of Provo purchased for use in Provo

City steel, concrete or a combination of steel and con-

crete pipe in the approximate sum of $580,000. During

the period from 1955 to 1964, inclusive, an additional

amount of pipe in the approximate sum of $470,000,

of the type of pipe described in the complaint in the

above-entitled action purchased by the Plaintiff from

the Defendant in the above entitled action. The figures

given are exclusive of installation costs or any costs

except the direct purchase price.

/s/ Glenn A. Wright

GLENN A. WRIGHT, CITY ENGINEER

Executed January 15, 1970.

[Notarial Acknowledgment omitted in printing]

—421—

Affidavit in Support of Motion to Intervene.

United States District Court, Central District of Calli-

fornia.

State of Utah, et al., Plaintiffs, vs. American Pipe

and Construction Company, ef al., Defendants. Civil

No. 69-1964-MP.

[Jurat omitted in printing]

Buell Bennett, being first duly sworn, states that he

is City Manager of the City of Vernal, a corporation

organized under the laws of the State of Utah. The

City of Vernal purchased pipe of the type described

in the complaint in the above-entitled action from one

or more of the defendants in the above-entitled action,

co-conspirators or others in the following periods for

the following amounts:

1946 to 1953—$16,031.38

1954 thru 1964—$272,910.19

1965—$48,626.00

_/s/ Buell Bennett

Buell Bennett

Executed January 19, 1970.

[Notarial Acknowledgment omitted in printing]

—422—

Affidavit in Support of Motion to Intervene.

United States District Court, Central District of Cali-

fornia.

State of Utah, et al., Plaintiffs, vs. American Pipe

and Construction Company, ef al., Defendants. Ss

No. 69-1964-MP.

[Jurat omitted in printing}

J. C. LINFORD, being first duly sworn, states that

he is Chairman of the Central Davis County Sewer

District, a sewer district organized under the laws of the

State of Utah. During the period 1959 through 1964,

Central Davis County Sewer District purchased pipe

of the type described in the complaint in the above

entitled action from one or more of the defendants in

the above-entitled action, co-conspirators or others at

a cost of approximately $317,143.05, exclusive of in-

stallation.

/s/ J.C. Linford

Executed January 20, 1970.

[Notarial Acknowledgment omitted in printing]

ZF

Affidavit in Support of Motion to Intervene.

United States District Court, Central District of Cali-

fornia.

State of Utah, et al., Plaintiffs, vs. American Pipe

and Construction Company, et al., Defendants. Civil

No. 69-1964-MP.

[Jurat omitted in printing]

T. JOHN LABRUM, having first been duly sworn,

upon oath deposes and says:

1. He is the Manager of the Taylorsville-Bennion

Improvement District, and has been so since its crea-

tion in 1954.

2. That he is familiar with the purchases of the

District with regard to pipe and supplies, and has

made a study of the concrete and steel pipe of the

District purchased since its inception.

3. That since the year 1954 through the year

1964, inclusive, Taylorsville-Bennion Improvement Dis-

trict has purchased pipe, including manholes, of the

type described in the complaint from defendants or

others, at a cost of $327,175.56, exclusive of installa-

tion.

Dated this 20th day of January, 1970.

/s/ T. John Labrum

T. John Labrum

[Notarial Acknowledgment omitted in printing]

424

Affidavit in Support of Motion to Intervene.

United States District Court, Central District of Cali

fornia. ci

- State of Utah, et al., Plaintiffs vs. American Pipe

and ' Construction Company, et al.,; Defendants. Ciyi

No. 69-1964-MP. oA

[Jurat omitted in printing} "ott

ROSCOE W. GODFREY, being first duly sworn, de.

poses and says: That he is the manager of the Sal

Lake County Cottonwood Sanitary District, a special

improvement district organized under the laws of the

State of Utah; that during the period from 1957 to

1964 the Salt Lake County Cottonwood Sanitary Dis.

trict purchased pipe of the type described in the Com

plaint in the above entitled action from one or more

of the defendants in the above-entitled action, co-con-

spirators or others at a cost of approximately $3,

781,378.24, including the cost of installing said pipe

in the Sewer Treatment System of said District.

/s/ Roscoe W. Godfrey

Executed January 23, 1970. :

[Notarial Acknowledgment omitted in printing]

—425—

Affidavit in Support of Motion to Intervene. —

©. United States District Court, Central District of Cali-

fornia.

State of Utah, et al., Plaintiffs, vs. American Pipe

and Construction Company, et al., Defendants. Civil

‘No. 69-1964-MP.

- [Jurat omitted in printing]

WILLIAM C. HAGUE, being first duly sworn,

states:

1. That he is the General Manager of Metropolitan

Water District of Salt Lake City, a separate and in-

dependent political corporate entity organized and exist-

ing pursuant to Chapter 8, Title 73, U. C. A. 1953,

being the Metropolitan Water District Act; and

2. That during the period 1946 through 1953, in-

clusive, the Metropolitan Water District of Salt Lake

City purchased pipe of the type described in the Com-

plaint in the above entitled action from one or more

of the defendants in the above entitled action, co-

conspirators or others at a cost of approximately

$1,537,000.00, exclusive of installation; and

3. That during the period 1954 through 1966, in-

clusive, the Metropolitan Water District of Salt Lake

City purchased pipe of the type described in the Com-

plaint in the above entitled action from one or more of

the defendants in the above entitled action, co-conspira-

tors or others at a cost of approximately $263,000.00,

exclusive of installation; a1

pre ine

4. That prior to the 13th day of May, 1969 he

was advised that the State of Utah would commence ap

action in the appropriate Federal District Court for

itself and in behalf if its agencies, political subdivisions

and districts, and in particular the Metropolitan Wa-

ter District of Salt Lake City, to recover the damages

it has sustained by reason of the acts and conduct of

the defendants herein; and was further advised that

the rights of the Metropolitan Water District of Salt

Lake City would be thereby protected; and that in

teliance thereon he did not cause to be filed a separate

action by Metropolitan Water District of Salt Lake

City to recover the damages sustained by it herein.

/s/ William C. Hague

Executed January 30, 1970.

[Notarial Acknowledgment omitted in printing]

a, See

Affidavit in Support of Motion to Intervene.

United States District Court, Central District of Cali-

fornia.

State of Utah, et al., Plaintiffs, vs. American Pipe

and Construction Company, et al., Defendants. Civil

No. 69-1964-MP.

[Jurat omitted in printing]

JOHN JORGENSEN, being first duly sworn, states

that he has been Mayor and Councilman in charge

of water for Castle Dale City. During the period 1954

through 1964, and has purchased pipe of the type

described in the complaint in the above-entitled action

from one or more of the defendants in the above-

entitled action, co-conspirators or others at a cost of

approximately $16,322.70, exclusive of installation.

/s/ John L. ie J

Executed February 13, 1970.

[Notarial Acknowledgment omitted in printing]

—428—

Affidavit in Support of Motion to Intervene.

United States District Court, Central District of Cali-

fornia.

State of Utah, et al., Plaintiffs, vs. American Pipe

and Construction Company, et al., Defendants. Civil

No. 69-1964-MP. o

[Jurat omitted in printing].

Walter W. Brock, being first duly sworn, states that

he is General Manager of the Granger-Hunter Improve-

ment District, a water and sewer district organized

under the laws of the State of Utah. During the

period 1953 through 1964, Granger-Hunter Improve-

ment District purchased pipe of the type described in

the complaint in the above-entitled action from one

or more of the defendants in the above-entitled action,

co-conspirators or others at a cost of approximately

$702,000, exclusive of installation.

/s/ Walter W. Brock

Executed March 5, 1970.

[Notarial Acknowledgment omitted in printing]

—429—

Request for Admission.

United States District Court, Central District of Cali-

fornia.

State of Utah, et al., Plaintiffs, vs. American Pipe

and Construction Company, ef al., Defendants. Civil

No. 69-1964-MP.

TO: Plaintiff, STATE OF UTAH, and to GERALD

R. MILLER, ESQ. and MULLINER, PRINCE &

MANGUM, its attorneys.

Pursuant to Rule 36, F.R.C.P., defendant, United

States Steel Corporation, requests plaintiff, State of

Utah, within ten (10) days after service of this request,

to make the following admission for the purpose of

this action only and subject to all pertinent objections

to admissibility which may be interposed at the trial:

1. The genuineness of the letter of January 2, 1970,

from Gerald R. Miller, Counsel for Plaintiff, to Ap-

plicants for Intervention, a copy of which is attached

hereto as Exhibit A.

DATED: January 22nd, 1970.

DOMINIC B. KING, ESQ.

Law Department

U. S. Steel Corporation

525 William Penn Place

Pittsburgh, Pennsylvania

and

MUSICK, PEELER & GARRETT

Jesse R. O’Malley, Esq.

Lawrence E. Stickney, Esq.

One Wilshire Boulevard,

Los Angeles, California 90017

Attorneys for Defendant,

UNITED STATES STEEL CORPORATION

BY: /s/ Jesse R. O'Malley

JESSE R. O7MALLEY

SS

—430—

EXHIBIT A TO REQUEST FOR ADMISSIONS

[Letterhead omitted in printing]

January 2, 1970.

Applicants for Intervention ;

in the State of Utah Private

Treble Damage Civil Antitrust Case

Involving Steel and Concrete Pipe

Re: State of Utah, et al. v. American Pipe &

Constr. Co., et al.

Gentlemen:

As you may know, this firm, together with Kent

Shearer of Neslen & Mock, were retained by the State

of Utah to represent it in connection with the private

treble damage civil antitrust case referred to above. We

thought it would be well to advise you generally as

to the nature of this action and its past history.

The Complaint was filed on May 13, 1969 by the

State of Utah on behalf of itself and all others similarly

situated. The State brought a class action seeking to

represent the interests of all of its governmental entities,

including cities, counties and water districts. In addi-

tion, the class was defined broadly enough to include

the states of Idaho, Wyoming and Nevada. The Con-

plaint alleges violations of § 1 of the Sherman Act.

It is based in large part upon previous federal proceed-

ings against many of the same defendants.

On March 10, 1964 a United States Grand Jury

sitting in the Southern District of California returned

indictments against the defendants American Pipe and

Construction Company, United Concrete Pipe Corpora-

tion, Kaiser Steel Corporation, United States Steel Cor-

poration, U. S. Industries and Smith-Scott, Inc. charg-

—431—

ing them and certain of their officers with conspiring

to restrain interstate trade in steel and concrete pipe

in that they submitted collusive and rigged bids for

the sale of such pipe and allocated and divided business

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