# Appendix — American Pipe & Constr. Co. v. Utah > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0227%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1974 - **Citation:** 414 U.S. 538 ## Text 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 abo [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0227%3A02. Public record. Not legal advice.