Appendix — Gulf Oil Corp. v. Copp Paving Co.

Supreme Court brief1974

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In the Supreme Court of the

United States

No. 73-1012

GULF OIL CorPoRATION, UNION O1L COMPANY OF CALIFORNIA,

INDUSTRIAL ASPHALT, INC., and EDGINGTON O1L CoMPANY,

Petitioners,

VS.

Copp PAVING COMPANY, INC., Copp EQUIPMENT

CoMPANY, INC., and ERNEsT A. Copp,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

FILED DECEMBER 28, 1973

WRIT OF CERTIORARI GRANTED MARCH 25, 1974

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INDEX

Page

Relevant docket entries in the United States Court of Appeals

POE Cre INE CONE cscs cstspiecsaraicnc eins | O

Complaint (filed June 24, 1970) ......s.cseseeceeceseceeesecesnenenees 3

Amended Complaint (filed December 30, 1970) ...........-.----- 13

Answer of Defendant Union Oil Company of California to

Amended Complaint (filed February 26, 1971) -............-.- 25

Answer of Defendant Sully-Miller Contracting Company to

Amended Complaint (filed February 26, 1971) -............--- 31

Amended Answer of Defendants Gulf Oil Corporation and

Industrial Asphalt, Inc. (filed April 23, 1971) -................. 37

Affidavit of Ernest A. Copp (filed October 29, 1971) -......... 44

Order of the District Court (filed December 51, 1971) cess 49

Answers of Plaintiffs Copp Paving Company, Inc., Copp

Equipment Company, Inc., and Ernest A. Copp to Defend-

ants’ Third Set of Interrogatories Propounded to Plaintiffs

OTe FROME 2 9972 ctr rspoerce erence 51

Response of Defendant Union Oil Company of California to

Plaintiffs’ Interrogatories (filed February 22, 1972) ........ 68

Response of Defendant Union Oil Company of California to

Plaintiffs’ Request for Admissions (filed February 22,

10 eee 76

~ Response of Defendant Sully-Miller Contracting Company to

Plaintiffs’ Interrogatories (filed February 22, 1972) .......... 85

Response of Defendant Sully-Miller Contracting Company

~ to Plaintiffs’ Request for Admissions (filed February 22,

2) eee eerie trom ene aon ee in ee eee ne 92

Response of Defendant Gulf Oil Corporation to Plaintiffs’

Interrogatories (filed February 23, 1972)... 101

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il INDEX

Response of Defendant Gulf Oil Corporation to Plaintiffs’

Requests for Admissions (filed February 23, 1972) ..........

Response of Defendant Industrial Asphalt, Inc. to Plaintiffs’

Interrogatories (filed February 23, 1972) -....-.-2-2------.-----

Response of Defendant Industrial Asphalt, Inc. to Plaintiffs’

Requests for Admissions (filed February 23, 1972) _........

Answers of Defendant Edgington Oil Company to Interroga-

tories Propounded by Plaintiff Copp with Reference to

the Issue of Interstate Commerce (filed March 13, 1972)

Motion of Defendants Gulf Oil Corporation, Union Oil

Company of California, Industrial Asphalt, Inc., and

Edgington Oil Company for Pretrial Order Limiting the

Issues, and Motion of Defendant Sully-Miller Contracting

Company for Summary Judgment (filed April 7, 1972) -...

(Affidavit of Ernest A. Copp in Opposition to Motion for

Summary Judgment (filed May 8, 1972)

Order of the District Court (filed May 31, 1972). Printed as

Appendix A to the Petition for Writ of Certiorari in this

cause, and incorporated herein by- reference

Appendix A and Appendix B to Opening Brief of Appel-

lants Copp Paving Company, Inc., et al., in the Court of

Appeals (filed September 26, 1972) ..

Appendix II to Reply Brief of Appellants Copp Paving

Company, Inc., et al., in the Court of Appeals (filed

February 5, 1973) -........-

Opinion of the United States Court of Appeals for the Ninth

_ Circuit (filed October 3, 1973). Printed as Appendix B

to the Petition for Writ of Certiorari in this cause, and

incorporated herein by reference .......

Page

n

128

135

144

149

155

168

June 30, 1972

' June 30, 1972

August 14, 1972

September 26, 1972

October 19, 1972

December 5, 1972

December 26, 1972

February 5, 1973

February 5, 1973

May 16, 1973

June 13, 1973

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PF 6 D8) sh tea

Relevant Docket Entries in the United States Court of Appeals

for the Ninth Circuit

(No. 72-2152)

Filed Order (Koelsch & Wright) granting Appel-

lants leave to appeal under 1292(b) & F.R.A.P.

Docketed cause and entered appearances of counsel.

Filed certified transcript of record on appeal in

eleven (11) volumes: Vols. 1-9, Pleadings, origi-

nal only; Vols. 10 & 11, Reporter’s Transcript,

original and one copy. Filed original exhibits in

two boxes in Room 219.

Filed 25 Appellants’ Brief.

Filed Motion and Order (Duniway) extending

time to file appellees’ (Union Oil & Sully-Miller,

et al.) brief to December 5, 1972. Subject to recon-

sideration if opposition is filed in 7 days.

Filed 25 Appellees’ Brief.

Filed Motion and Order (Chambers) extending

time to file appellants’ reply brief to January 29,

1973.

Filed Stipulation and Order (Chambers) extending

time ‘to file appellants’ reply brief to February 5,

1973.

Filed 25 Appellants’ Reply Brief.

Filed Order (Carter, Goodwin, Ferguson) grant-

ing appellants’ motion to modify Appellants’ Reply

Brief, striking paragraph V, pages 28 & 29.

Argued and submitted to Carter, Goodwin, Fergu-

son.

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4 Appendix

Monopolies,” commonly known as the Sherman Act, and under

_ Sections 4, 7 and 12 of the Act of Congress of October 15, 1914

[Chapter 323, 38 Stat. 731, 736 (154 I7S.C. 15, —22)] as

amended entitled “An Act to Supplement Existing Laws Against

Unlawful Restraints and Monopolies and for Other Purposes,”

commonly known as the Clayton Act, and under 28 U.S.C. 13, 37,

as hereinafter more fully appears, in order to recover damages

against defendants and each of them for injury to plaintiff in their

business or property resulting from the defendants and each of

their violation of the Anti-Trust Laws of the United States.

Count II

Defendants and each of them have offices transacting businesses

and are found within the Central District of California. The .

violation of law hereinafter described has been and is being car-

ried on within this district.

DEFENDANTS

Count III

Gulf Oil Company, hereinafter referred to as “Gulf” is made

a defendant herein. Gulf is organized and existing under the laws

of the State of Delaware, has its principal place of business in

Los Angeles, California, and is an integrated oil producer, re-

- finer and marketeer. Gulf owns one hundred percent (100%) of

defendant, Industrial Asphalt, Inc.

Count IV

Defendant Union Oil Company of California, was incorporated

in California on November 17, 1890, has its principal place of

business in Los Angeles, California. Union Oil Company is an

integrated oil producer, refiner and marketeer. Union is tenth

in size among United States oil companies, operates nine refineries

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Appendix 5

with approximately 382,000 barrels per day capacity, 1500 whole-

sale and bulk distributorship facilities, 18,300 service stations

and other rental outlets.

Count V

Industrial Asphalt, Inc., is a wholly owned subsidiary of Gulf

Oil Company, was incorporated in California in 1963 and has its

principal place of business in Van Nuys. In 1963 Gulf pur-

chased Industrial Asphalt for stock. Industrial is primarily in the

construction business and operates several hot plants. The location

of Industrial’s operations are as follows:

Orange County, Los Angeles County, Ventura County, San Luis

Obispo, West Los Angeles Area, San Bernardino County, River-

side County and San Diego County.

Count VI

Defendant Sully Miller Contracting Company is a wholly

owned subsidiary of Union Oil Company of California, was in-

corporated in California in 1923 and its principal place of business

is Long Beach, California. Sully Miller is primarily in the business

of operating asphaltic concrete “hot plants” and contracting street

improvements.

Count VII

Copp Paving Company, Inc. was incorporated in the State of

California on June 1, 1956, and its principal place of business

is at 11710 East 166th Street, Artesia, California.

Count VIII

Plaintiff Copp Equipment Company, Inc., was incorporated on

November 20, 1956, and its principal place of business is 11700

East 166th Street, Artesia, California.

Count IX

Plaintiff, Ernest A. Copp, started the business under the name

of Copp Paving Company in June, 1954.

6 . | - Appendix

- Plaintiffs are primarily engaged in the grading and paving

of streets. During the period of 1954 to 1960, Copp Paving Com-

pany bought most of its asphalt paving riaierials from Industrial

Asphalt and -during this same reriod was one of its bigger

accounts.

TRADING *ND COMMERCE

3 Count X

Asphaltic concrete paving mate ials are made by combining hot,

crushed rock, sand, a cement-like “ller and hot asphaltic oil into

a homogenous mass in a\mixing plant, commonly called a “hot

plant’. The rock and sand are purchased from a rock plant. The

oil ‘s purchased from an oil company. Upon arrival of the rock

and sand at the “hot plant’, it is dumped into a stockpile bunker

according to size and tvpe of material. The stockpiles are at

_ ground level and the material is dumped into a nopper which

- conveys the material overhead to the correct stockpile. This

system is known as a “‘stacker.” The filler is stored in a cement

silo. The asphaltic oil is delivered hot in insulated trucks and

deposited into heated and insulated underground oil tanks in

, the plant. The various compounds .are subsequently mixed at

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approximately 375° and the hot mixed asphalt is discharged into

a dump truck. The truck then delivers the asphalt to the particular

job. The area of trade involved also includes the general con-

tracting area; primarily, streets, roadways and parking lots, the

owning, operating, leasing and renting of heavy equipment, par-

ticularly used in the paving area.

OFFENSES CHARGED

Count XI

In 1958, Norwalk Asphalt Company built a plant at Bloomfield

Avenue and Imperial Highway in Santa Fe Springs. In 1960,

rie tn is A dating «Onto

Copp Paving Company built a hot plant one-half mile northeast

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Appendix 7

_ of Norwalk’s plant. From 1958 on, Industrial would underbid

all competitors, even at a loss, putting economic pressure on

plaintiff and Norwalk Asphalt Company. Industrial acquired

Norwalk Asphalt in 1963 simultaneously with Industrial being

acquired by Gulf.

On or about December 1, 1963, Gulf acquired Industrial

Asphalt. Subsequent to said acquisition, Defendant Gulf, through

its wholly owned subsidiary, Industrial, has attempted % monopo-

lize and has monopolized the purchase, transportation and the

sale of the asphaltic concrete and because of the vast amount of re-

sources of defendant, Gulf, and the availability of the liquid as-

phalt to Industrial at unrealistic prices, defendant has engaged in

a series of acts, practices and policies with the intent and purpose

and with the object and effect of unlawfully interfering with plain-

tiff's business. By those acts, practices and policies, defendant has

unlawfully intended to attempt to monopolize or to create and

maintain a monopoly and has monopolized the purchase, transpor-

tation and sale in interstate commerce of asphaltic concrete and as

a result of said intent, defendant has unlawfully and wrongfully

injured and destroyed plaintiff's businesses, all of which is unlaw-

ful and against public policy and is in violation of Section 2 of

the Act of Congress of July 2, 1890 (15 U.S.C.2), commonly

known as the Sherman Act.

Count XIII

Further, the effect of the Stock Acquisition alleged above in

XII may be substantially to lessen competition or to tend to

create a monopoly in violation of Section 7 of the Act of

Congress of October 15, 1914, commonly known as the Clayton

Act (38 Stat. 731 15 U.S.C. Section 18, as amended).

Count XIV

Defendant, Industrial, has also acquired at various times the

several companies which also were in competition with plaintiffs

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and defendant creating a violation of said Section 7 of the

Clayton Act in that it substantially lessens competition or tends

to create a monopoly in the following manner: Various entities

that have been acquired have been eliminated as potential, sub-

stantial, independent, competitive entities in the asphaltic concrete

business. Actual and potential competition between Industrial

and the various companies acquired has been eliminated.

Industrial Asphalt’s acquisition of various other “hot plants” in

the form of horizontal acquisitions effectively eliminated all

competition in the effective competitive areas.

Beginning at least as early as December 19, 1963, and con-

tinuing thereafter until the present time, the defendants named

the co-conspirators engaged in an unlawful combination and con-

spiracy in unreasonable restraint of the aforesaid interstate trade

and commerce in the asphalt production and sales.

Count XV

On or about September, 1964, Union Oil Company acquired

Sully Miller, Inc. Subsequent to said acquisition, defendant,

Union, through its wholly owned subsidiary, Sully Miller has

attempted to monopolize and has monopolized the purchase,

transportation and sale of the asphaltic concrete and because of

the vast amount of resources of defendant, Union, and the

availability of the liquid asphalt to Sully Miller at unrealistic

prices, defendant has engaged in a series of acts, practices and

policies with the intent and purpose and with the object and

_ effect of unlawfully interfering with plaintiff's business. By those

acts,- practices and policies, defendant has unlawfully intended to

attempt to monopolize or to create and maintain a monopoly and

has monopolized the purchase, transportation and sale in inter-

state commerce of asphaltic concrete and as a result of said

intent, defendant has unlawfully and wrongfully injured and

destroyed plaintiff's businesses, all of which is unlawful and

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Appendix 9

against public policy and is in violation of Section 2 of the Act

of Congress of July 2, 1890 (15 U.S.C. 2), commonly known as

the Sherman Act.

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Count XVI

Defendants further leased and sold in such a manner to

discriminate in price between different purchasers of commodities

of like, grade and quality and the effect of such discrimination

is to substantially lessen competition or tends to create a monopoly.

In fornwlating and effectuating the aforesaid combination and

conspiracy and price fixing, said defendants and co-conspirators

did those things which as hereinbefore alleged, they combined

and conspired to «0, including among other things, the following:

Gulf Oil Company acquired Industrial Asphalt resulting in

a vertical integration, which because of the vast financial resources

of defendant, Gulf, and the availability of the raw materials

at basically a give-away price. This acquisition eliminates com-

petition to the detriment of plaintiff.

Union Oil Company's acquisitions of Sully Miller Contracting

Company resulted in a vertical integration which substantially

lessened competition to the detriment of plaintiff.

Sully Miller, Inc's horizontal acquisitions effectively eliminated

competition in the competitive area.

Defendants and each of them conspired within to combine to

monopolize or attempt to monopolize the trade and commerce

defined above as follows:

The defendants and each of them among themselves effectively

have divided the geographic areas of competition so that they

would effectively not be competing against each other but

rather to combine their resources to eliminate such competition.

Defendant Sully Miller, on or about May 12, 1969, and

continuously have engaged in tie-in practices. By said tie-in

arrangement, Sully Miller would agree to sell base rock material

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and other material substantially cheaper if the particular con.

tractor would buy the asphalt from Sully Miller.

Industrial Asphalt has further attempted to monopolize the

area by over-extending credit to its potential customers, thereby

locking in said potential customers to Industrial Asphalt.

Defendant, Industrial Asphalt and defendant, Sully Miller,

and each of them maintain artificially high prices in those par-

ticular areas where there is no competition or slight competition

and sell their products at an artificially low price, at times, sub-

stantially below cost, in those areas geographically where the

aforesaid defendants compete with plaintiffs.

That certain combination and conspiracy further consisted

of a continuing agreement and understanding between defendants

and each of them to raise, fix, stabilize and maintain the prices

of the product and because of such conspiracy, prices were

raised, fixed, stabilized and maintained at non-competitive levels

and the customers have been deprived of free and open compe-

tition.

Plaintiff has been substantially injured in a specific amount

not yet ascertained since such determination will require dis-

covery and analysis of defendants’ books and records. When

these amounts have been determined, plaintiffs will seek leave

of court to amend this application and to include such amount.

PRAYER

Wherefore, plaintiffs pray that:

1. The alleged combination and conspiracy among the defend-

ants herein named be adjudged and decreed to be in unreasonable

restraint of trade in violation of Section 1 of the Sherman Act.

2. That defendant has unlawfully attempted to monopolize

and has monopolized the purchase, transportation, leasing and

sale of asphaltic concrete products in violation of Section 2 of

the Sherman Act.

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Appendix 11

3. By selling at different prices, with the purpose and intent

of driving the competition out of business or destroying compe-

tition, defendants have violated Section 2 of the Clayton Act of

1914, as amended, by the Robinson-Patman Act of 1936.

4. By inducing customers to enter into tie-in arrangements

the effect of which is to substantially lessen competition, Section

3 of the Clayton Act has been violated.

5. That the defendant and all persons, firms and corporations

acting on their behalf or under their direction or control, be

permanently enjoined from engaging in carrying out or renewing

any contracts, agreements, practices or understandings or claim-

ing any prices thereunder having the purpose of effect of con-

tinuing, revising or renewing the aforesaid violations of the

Sherman Act, the Clayton Act and the Robinson-Patman Act or any

contracts, agreements, combination or conspiracy having like or

similar purpose or effect. That the acquisition of defendant, Gulf

Oil Company, of Industrial Asphalt and defendant, Union Oil

Company's acquisition of Sully Miller Contracting Company and

the various acquisitions of Sully Miller Gontracting Company and

Industrial Asphalt be adjudged to be in violation of Section 7 of

the Clayton Act.

6. That the defendant, Union Oil Company. be required to-

divest itself of Sully Miller Contracting Company and Gulf Oil

Company be required to divest itself of Industrial Asphalt, Inc.

7. Judgment be entered in favor of plaintiffs against the

defendants jointly and severally for the injury and damages

caused plaintiffs in an amount three-fold the actual damages

they have sustained with interest thereon.

-g Plaintiffs recover their cost of litigation, including rea-

sonable attorney's fees.

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12 Appendix -

9. Plaintiffs be granted such other, further and different

relief as the nature of the case may require and as may seem

just and proper to the court.

CUMMINS, WHITE, BREIDENBACH & ALPHSON

- By /s/ L.W. CrisPpo

Lawrence W. Crispo

Attorneys for Plaintiffs

Peer te on

Appendix 13

Corinblit and Shapero

Jack Corinblit

Attorneys at Law

Suite 575, Beneficial Plaza

3700 Wilshire Boulevard

Los Angeles, California 90005 { Filed December 30, 1970}

Telephone: 380-4200.

Attorneys for Plaintiffs

United States District Court

Central District of California

CIVIL ACTION NO. 70-1394-DWW

Copp Paving Company, Inc.; Copp Equipment

Company, Inc.; and Ernest A. Copp,

Plaintiffs,

v.

Gulf Oil Company; Union Oil Company of

California, Industrial Asphalt, Inc.; Sully-

Miller Contracting Company; and Edging-

ton Oil Company,

Defendants.

AMENDED COMPLAINT UNDER THE ANTITRUST LAWS

OF THE UNITED STATES AND UNDER THE CALI-

FORNIA CARTWRIGHT ACT FOR DAMAGES AND

INJUNCTIVE RELIEF

JURY TRIAL DEMANDED

The above-named plaintiffs file this Amended Complaint under

Rule 15A of the Federal Rules of Civil Proecdure against the

above-named defendants, and demanding trial by jury, complain

and allege as follows:

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FIRST CLAIM FOR RELIEF

I

JURISDICTION AND VENUE

1. This claim for relief is filed under Sections 4 and 16 of

the Claycon Act (15 U.S.C. 4, 26) to recover damages from, and

to obtain injunctive relief against, the defendants for violations

of the Antitrust Laws of the United States, including 15 US.C.,

Sections 1, 2, 13, 13a, 14 and 18, as hereinafter alleged.

2. Each defendant transacts business, maintains an office, and

is found within the Central District of California. The interstate

trade and commerce hereinafter described is carried on, in part,

within this District. Unlawful acts done pursuant to violations of

Sections 1 and 2 of the Sherman Act have been performed within

the Central District of California.

II

PLAINTIFFS

3. Plaintiff Copp Paving Company, Inc. (hereinafter some-

times referred to as “Copp Paving’’) is a California corporation,

with its principal place of business in Artesia, California. Plaintiff

Copp Equipment Company, Inc. (hereinafter someteimes referred

to as “Copp Equipment’) is a California corporation, with its

principal place of business in Artesia, California. Plaintiff Ernest

Copp is the owner of substantially all of the stock of Copp

Paving and Copp Equipment. Plaintiffs are engaged principally

in the business of manufacturing and selling of asphaltic concrete

and the grading and paving of streets employing asphaltic con-

crete.

III

DEFENDANTS AND CO-CONSPIRATORS

4. Defendant Gulf Oil Company (hereinafter sometimes re-

ferred to as ‘Gulf’) is a Delaware corporation with its principal

~~ MEI, IARI RAR RITE ws AS PROPER ED

Appendix _ is §

place of business in Los Angeles, California. Gulf produces and

refines crude petroleum and markets petroleum producis through- |

out the United States, including the Central District of California

and in foreign countries. Gulf owns 100% of defendant Industrial

Asphalt, Inc.

5. Defendant Industrial Asphalt, Inc. (hereinafter sometimes ;

referred to as ‘Industrial’ is a California corporation with its

principal place of business in Van Nuys, California. Industrial

is primarily engaged in the construction business and operates

“Hot Plants’’ for the manufacture of asphaltic concrete at each

“Hot Plant” location in Orange County, Los Angeles County,

Ventura County, San Luis Obispo County, San Bernardino County,

Riverside County, San Diego County, and West Los Angeles

area. Gulf obtwined control of Industrial by acquisition of 100%

of Industrial’s capital stock in 1963.

6. Defendant Union Oil Company of California (hereinafter

sometimes referred to as “Union’’) is a California corporation

with its principal place of business in Los Angeles, California.

Union produces and refines crude petroleum and markets petro-

leum products throughout the United States, including the Cen-

tral District of California, and in foreign countries. Union owns

100% of the capital stock of Sully Miller Contracting Company.

7. Defendant Sully Miller Contracting Company (hereinafter

sometimes referred to as “Sully Miller’) is a California corpora-

tion having its principal place of business in Long Beach, Cali-

fornia. Sully Miller is engaged primarily in the business of operat-

ing asphaltic concrete “Hot Plants” and contracting street improve-

ments. Union obtained control of defendant Sully Miller by

acquiring 100% of its capital stock in 1964.

8. Defendant Edgington Oil Company (hereinafter some-

times referred to as “Edgington”) is a California corporation,

with its principal place of business in Long Beach, California.

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16 | Appendix

Edgington produces and refines crude petroleum and markets

petroleum products in California, including the Central District

of California, in other states, and in foreign countries.

9. Various other firms, corporations and individuals presently

unknown to plaintiffs participated as co-conspirators in the viola-

tions of law alleged herein and performed acts and made state-

ments in furtherance thereof. Plaintiffs will seek leave of Court

to amend this complaint to name such firms, corporations and

individuals when their identities become known to plaintiffs.

IV

NATURE OF TRADE AND COMMERCE

10. Hot asphalt oil is one of the by-products obtained from

the refining of domestic and imported crude petroleum. One of

the substantial uses of hot asphalt oil is in connection with the

construction, maintenance, surfacing, resurfacing and repairing

of roads and highways. .

Asphaltic concrete paving materials are made by combining

hot, crushed rock, sand, a cement-like filler and hot asphalt oil

into a homogeneous mass in a mixing plant, commonly called

a “hot plant’. The rock and sand are purchased from a rock

plant. The hot asphalt oil is purchased from an oil company.

Upon arrival of the rock and sand at the “hot plant’, it is

dumped into a stockpile bunker according to size and type of

material. The stockpiles are at ground level and the material

is dumped into a hopper which conveys the material overhead to

the correct stockpile. This system is known as a ‘stacker’. The

filler is stored in a cement silo, The hot asphalt oil is delivered

hot in insulated trucks and deposited into heated and insulated

underground oil tanks in the plant. The various compounds are

subsequently mixed at approximately 375° and the hot asphaltic .

concrete is discharged into a dump truck. The truck then delivers

Appendix ; 17

the asphaltic concrete to the particular job. Hot asphalt oil

customarily represents approximately 25% of the cost of all of

the materials that are combined in the manufacture of asphaltic

concrete,

Hot asphalt oil is also used to repair roads and highways in

accordance with other techniques.

11. The tote! annual production and importation of hot

asphalt oil into the United States ordinarily amounts to more

than 6,000,000 tons, of which ninety percent (90%) is recovered

from the refining of domestic and imported crude petroleum.

12. Over seventy-five percent (75%) of the total production

of hot asphalt oil is used in the construction and maintenance of

roads and highways. Approximately 14,000,000 square yards of

asphalt pavement are constructed annually in the United States.

13. The total annual production of hot asphalt oil in Cali-

fornia exceeds 1,000,000 tons per year, of which at least seventy-

five percent (75%) is used in the construction and maintenance

of roads and highways within the State.

14. Defendants Gulf, Union and Edgington operate refineries

within the State of California in which substantial quantities of

hot asphalt oil are manufactured from domestic and imported

crude petroleum. Hot asphalt oil is shipped from these refineries

within the State of California in interstate and foreign commerce

to other states of the United States and to interstate and foreign

customers. Plaintiffs and defendants Industrial and Sully Miller

purchase hot asphalt oil produced from imported and domestic

crude petroleum and manufacture asphaltic concrete, sometimes

referred to as ‘asphalt’, therefrom as hereinabove set forth.

Defendants Gulf, Union and Edgington sell to end users and

contractors, including plaintiffs, substantial quantities of hot as-

phalt oil to be used as hot asphalt or™as asphaltic concrete for

constructing, maintaining, surfacing, resurfacing and repairing

roads and highways, including Federal interstate system highways

18 Appendix

‘and highways directly connected to interstate highways. Thus,

the business of supplying hot asphalt oil or asphaltic concrete for

road purposes is in and directly affects interstate commerce.

15. Plaintiffs purchase hot asphalt oil and manufacture as-

phaltic concrete therefrom at their hot plant in Santa Fe Springs,

California. Plaintiffs thereafter either sell asphaltic concrete to

third parties or use that asphaltic concrete in carrying on their

business in the installation, maintenance and repair of roads and

highways. Plaintiffs are in direct competition with defendants

Industrial and Sully Miller in the sale of asphaltic concrete and

the installation, maintenance and repair of roads and highways.

16. The movement in interstate commerce of hot asphalt oil

manufactured from domestic and imported crude petroleum used

in the business of supplying hot asphalt oil or asphaltic concrete

for interstate and local highways and roads is in and directly

affects interstate commerce.

Vv

OFFENSES CHARGED ,

17. Beginning at a date unknown to plaintiffs and c ntinuing

at least to the date of the filing of this complaint, defen ants, and

each of them, together with the co-conspirators, have engaged in

a continuous agreement, combination, conspiracy and concert of

action in the State of California, including the County of Los

Angeles, and in other western states of the United States, in

unreasonable restraint of interstate commerce and trade, in the

sale of hot asphalt oil, asphaltic concrete, and in the business of

grading and paving of roads and highways and the defendants,

and each of them, have purposely and with deliberate and

specific intent, attempted to monopolize, conspired with each

other and the co-conspirators, to monopolize and did monopolize,

the aforesaid trade and commerce, all in’ violation of Sections 1

and 2 of the Sherman Act.

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Appendix 19

18. One of the purposes and objectives of the aforesaid

combination and conspiracy to restrain and the combination and

conspiracy to monopolize, attempt to monopolize and monopoliza-

tion has been the destruction and elimination of plaintiffs as a

viable entity so that:

(a) Plaintiffs would be eliminated as a competitor of Industrial

and Sully Miller:

(b) Plaintiffs would be penalized for remaining as an inde-

pendent competitor in the manufacture and sale of asphaltic

concrete, and in the business of grading and paving highways

and roads.

19. In furtherance of the abuve-described violations of the

Antitrust Laws, the defendants, and each of them, together with

the co-conspirators, agreed to and in fact engaged, among other

things, in the following acts and practices:

(a) Fixed, stabilized and maintained the prices at which

hot asphalt oil would be sold to end users, including governmental

agencies and to hot plant owners. including plaintiffs;

(b) Allocated and exchanged between each other supplies of |

crude petroleum and petroleum products, including, but not

limited to supplies of hot asphalt;

(c) Fixed, stabilized and maintained the prices at which as-

phaltic concrete would be sold to end users, including govern-

mental agencies, and to contractors;

(d) Eliminated competition and obtained and exercised monop-

oly power in the operation of hot plants and in the sale of

asphaltic concrete by acquiring ownership and control of a

substantial number of hot plants, including more than sixty

percent (60%) of all of the hot oil plants operated in Southern

California and in Los Angeles and Orange Counties;

(e) Allocated and divided, on a geographical basis and upon

a customer basis, the outlets to whom hot asphalt oil and as-

phaltic concrete would be sold;

Rabe i yeep a |

20 Appendix

(f) Sold asphaltic concrete at unreasonably low prices in the

areas in which they competed with plaintiffs and subsidized said

unreasonably low prices by artificially maintaining prices in other

areas in which plaintiffs did not compete;

(g) Sold and installed asphaltic concrete at or below cost in

areas where plaintiffs competed with defendants and subsidized

said sales by artificially maintaining higher prices in areas where

plaintiffs did not compete;

(h) Threatened actual and potential customers of plaintiffs

that unless they refrained from purchasing asphaltic concrete

from plaintiffs in plaintiffs’ area of competition, that said customers

would be unable to obtain supplies of asphaltic concrete at a

competitive price in other areas where said customers had no

other source of supply other than defendants;

(i) Extended unreasonably advantageous credit terms to cus-

tomers in order to preclude said customers from purchasing

asphaltic concrete from any other suppliers, including plaintiffs;

(j) Required customers who were indebtéd to defendants to

purchase all of their asphaltic concrete from said defendants

upon threat of immediately enforcing the collection of outstanding

debt, thereby precluding said customers from purchasing asphaltic

concrete from other suppliers, including plaintiffs;

(k) Tied the sale of other commodities, including base rock

material, and tied the availability of credit to the sale of asphaltic

concrete so as to induce and require purchasers of asphaltic con-

crete to purchase their supply thereof from Sully Miller and

not to purchase their supply from third parties, including plaintiffs;

(1) Sold hot asphalt. oil and asphaltic concrete in such a man-

ner as to discriminate in price between purchasers of such com-

modities of like grade and quality where the effect of such dis-

crimination was to substantially lessen competition and tended to

create a monopoly;

Appendix 21

(m) Gulf acquired all of the capital stock of Industrial, as

hereinabove alleged, and the effect thereof may be substantially

to lessen competition and to tend to create a monopoly, in viola-

tion of Section 7 of the Act of Congress of October 15, 1914,

commonly known as the Clayton Act, 15 U.S.C.. Secion 18, as

amended; and

(n) Union acquired all*of the capital stock of Sullv Miller,

as hereinabove alleged, and the effect of that acquisition may be

substantially to lessen competition, and to tend to create a mon-

opoly, in violation of Section 7 of the Act of Congress of October

15, 1914, commonly known as the Clayton Act, 15 U.S.C., Section

18, as amended.

VI

INJURY TO PLAINTIFFS

20. By reason of the aforesaid ‘antitrust violations, plaintiffs

have suffered grave damage in loss of profits, goodwill and the

value of their company as a going concern. The exact amount of

damage has not yet been fully ascertained, but when fully de-

termined, plaintiffs will seek leave to assert the amount of damages

herein.

SECOND CLAIM FOR RELIEF

VII

JURISDICTION AND VENUE

21. This claim for relief arises under California Business and

Professions Code 16750 to recover damages from, and to obtain

injunctive relief against, the defendants for violations of the

California Business and Professions Code Section 16720 (some-

times referred to as the “Cartwright Act’). This claim is sub-

stantially and directly related to plaintiffs’ First Claim for Relief,

and by reason thereof, this Court has pendant jurisdiction of this

claim.

eA

—> a * RN PP Oy gtr eT 2 — — —, ” = -

PERS ABIES FREI ES ERNE IAS SIT A PASTA EE RRR ERS

22 Appendix

22. Plaintiffs hereby incorporate by reference Paragraphs 2,

3, 4, 5, 6, 7, 8, 9, 10, 13, 14 (the first sentence only), and 15 of

Plaintiffs’ First Claim for Relief as though fully set forth at

length herein.

Vill

OFFENSES CHARGED

23. Beginning at a date unknown to plaintiffs and continuing

at least to the date of the filing of this complaint, defendants,

and each of them, together with the co-conspirators, have engaged

in a combination of capital and acts in the State of California,

including Los Angeles County, in order to carry out the following

purposes, among others: .

(a) To create and carry out restrictions in trade and commerce;

and

(b) To prevent and eliminate competition in the sale of hot

asphalt oil and asphaltic concrete, in violation of California Busi-

ness and Professions Code Section 16720 (also known as the

Cartwright Act).

24. Plaintiffs hereby incorporate by reference Paragraphs

18(a) and (b) and 19(a) through (m)/6f Plaintiffs’ First Claim

for Relief as though fully set forth at length herein.

IX

INJURY TO PLAINTIFFS

25. By reason of the aforesaid violations of the Cartwright

Act, plaintiffs have suffered grave damage in loss of profits, good

will, and the value of their Company as a going concern. The

exact amount of damage has not yet been fully ascertained. When

fully determined, plaintiffs will seek to assert the amount of dam-

ages herein.

AP a RS 7 NEE

Appendix 23

PRAYER

Wherefore, plaintiffs pray that:

(1) The alleged combination and- conspiracy among the de-

fendants herein named be adjudged and decreed as a violation

of Section 1 of the Sherman Act;

(2) That the attempts to monopolize, conspiracy to monopolize

and monopolization hereinabove alleged be declared to be a viola-

tion of Section 2 of the Sherman Act;

(3) That the sales at discriminatory prices hereinabove alleged

be declared to be in violation of Section 2 of the Clayton Act of

1914 as amended by the Robinson-Patman Act of 1936;

(4) That the tie-in arrangements hereinabove alleged be de-

clared to be in violation of Section 3 of the Clayton Act;

(5) That the acquisition by defendant Gulf of the capital stock

of Industrial, and the acquisition by defendant Union of the capital

stock of defendant Sully Miller, and the various acquisitions of

hot plants, by Industrial and Sully Miller, be adjudged to be in

violation of Section 7 of the Clayton Act;

(6) That defendant Union be required to divest itself of the

capital stock of Sully Miller and that defendant Gulf be required

to divest itself of the capital stock of Industrial ;

(7) That the combination and conspiracy hereinabove alleged

be declared to be in violation Section 16720 of the California Busi-

ness and Professions Code and the Cartwright Act;

(8) That defendants, and all persons, firms and corporations

acting on their behalf or under their direction or control, be per-

manently enjoined from engaging in carrying out or renewing any

contracts, agreements, practices or understandings hereinabove

alleged;

(9) That judgment be entered in favor of plaintiffs and against

the defendants, jointly and severally, for the injury and damages

caused plaintiffs in an amount equal to threefold the actual dam-

ages sustained by plaintiffs;

iat IRF LOGE ES EIS SATE NII 5%

TENS

Re alas TF WVU SC la a hate one Shs a Nae ches ae ee eee

CO ee AAR GE CAIRNE BBN ta uPA

AY et on

a DPR ert Bs sh

PCR IES B97 GLIA

24 Appendix

(10) That plaintiffs recover their costs of litigation, including

reasonable attorneys’ fees; and

(11) That plaintiffs be accorded such other, further and dif-

ferent relief as the nature of the case may require and as may seem

just and proper to the Court.

CORINBLIT AND SHAPERO

By: MARTIN M. SHAPERO

Attorneys for Plaintiffs

PLAINTIFFS DEMAND A JURY TRIAL

Appendix 25

United States District Court for the Central District of California

{ Title of case omitted in printing}

{ Filed February 26, 1971}

ANSWER OF DEFENDANT UNION OIL COMPANY OF

CALIFORNIA TO AMENDED COMPLAINT

Union Oil Company of California, hereafter “Union,” answers

plaintiffs’ amended complaint as follows:

ANSWER TO FIRST CLAIM FOR RELIEF

1. Union denies the averments of Paragraph 1 of the amended

complaint, except that it admits that plaintiffs’ first claim for

relief purports to be filed under the provisions of 15 U.S.C. § 26.

2. Union is without knowledge or information sufficient to

form a belief as to the truth of the averments of Paragraph 2 of

the amended complaint, except that it admits that Union, Sully-

Miller Contracting Company, Industrial Asphalt, Inc., and Edging-

ton Oil Company each maintains an office, transacts business or is

found in the Central District of California, and denies that Union

has done or performed any acts in violation of or pursuant to any

violations of Sections 1 and 2 of the Sherman Act in the Central

District of California or in any other place.

3. Union is without knowledge or information sufficient to

form a belief as to the truth of the averments of Paragraphs 3,

4, and 5 of the amended complaint except that it admits that

Industrial Asphalt, Inc. operates “hot plants” for the manufacture

of asphaltic concrete.

4. Union admits the averments of Paragraph 6 of the amended

complaint, except that it denies that it produces and refines crude

petroleum and markets petroleum products throughout the United

States, and denies that it refines crude petroleum and markets

petroleum products in foreign countries.

Se ee <ERS SR

26 Appendix

5. Union admits the averments of Paragraph 7 of the amended

complaint, except that it denies that it obtained control of Sully-

Miller Contracting Company in 1964 or at any other time.

6. Union is without knowledge or information sufficient to

form a belief as to the truth of the averments of Paragraph 8 of

the amended complaint, except that it admits that Edgington Oil

Company is a California corporation with its principal place of

business in Long Beach, California, and that Edgington Oil Com-

pany refines crude petroleum and markets petroleum products

in California.

7. Unionsdenies the averments of Paragraph 9 of the amended

complaint.

8. Union is without knowledge or information sufficient to

form a belief as to the truth of the averments of Paragraph 10

of the amended complaint, except that it admits that various

products, sometimes referred to collectively as “hot asphalt oil”

are obtained from the refining of crude petroleum, in some cases

domestic and in other cases foreign, that “hot asphalt oil” is used

in connection with the construction, maintenance, surfacing, re-

surfacing, and repairing of roads and highways, and that asphaltic

concrete paving materials are made by combining “hot asphalt

oil’’ with various other materials and by various methods in a

mixing plant, sometimes called a “hot plant.”

9. Union is without knowledge or information sufficient to

form a belief as to the truth of the averments of Paragraphs 11,

12, and 13 of the amended complaint, except that it admits that

the total annual production and importation of “hot asphalt oil”

into the United States ordinarily amounts to more than six million

tons, that approximately 14 million or more square yards of as-

phalt pavement are ordinarily constructed annually in the United

States, and that the total annual production of “hot asphalt oil”

in California ordinarily exceeds one million tons per year.

Appendix 27

10. Union is without knowledge or information sufficient to

form a belief as to the truth of the averments of Paragraph 14 of

the amended complaint, except that it admits that it operates re-

fineries within the State of California at which “hot asphalt oil”

is manufactured from crude petroleum, in some cases domestic

and in other cases foreign, that Edington operates a refinery in

the State of California at which “hot asphalt oil’’ is manufactured

from crude petroleum, that Union ships some of the “hot asphalt

oil” so manufactured by it to other states of the United States

and sells “hot asphalt oil” to customers located in other states,

that Industrial and Sully-Miller purchase “hot asphalt oil” pro-

duced from crude petroleum, in some cases domestic and in other

cases foreign, and manufacture asphaltic concrete therefrom, that

Union and Edington sell ‘hot asphalt oil’’ to end users and con-

tractors, and that such “hot asphalt oil” is in some cases used as

“hot asphalt” and is in other cases used as one of the constituents

of asphaltic concrete for constructing, maintaining, surfacing, re-

surfacing, and repairing of roads and highways, including federal

interstate system highways and highways directly connected to

interstate highways, and denies that it sells, or during at least the

four years last past has sold “hot asphalt oil” to plaintiffs or to

any of them, and denies that the business of supplying “hot asphalt

oil” or asphaltic concrete for road purposes is in and directly

affects interstate commerce.

11. Union is without knowledge or information sufficient to

form a belief as to the truth of the averments of Paragraph 15

of the amended complaint. .

12. Union denies the averments of Paragraphs 16, 17, 18, 19,

and 20 of the amended complaint, except that it admits that the

exact amount by which plaintiffs have allegedly been damaged

has not been ascertained or determined, and alleges that said sup-

posed amount cannot be ascertained or determined because plain-

tiffs have not been injured at all.

REIL SLE PEA ALL NOME EOE I IO

28 Appendix |

SECOND DEFENSE TO FIRST CLAIM FOR RELIEF

13. Plaintiffs’ first claim for relief fails to state a cause of

action against Union upon which relief may be granted.

THIRD DEFENSE TO FIRST CLAIM FOR RELIEF

14. Such of plaintiffs’ claims for relief against Union as ac-

crued more than four years prior to the filing of the complaint are

barred by the statute of limitations, the Act of July 7, 1955, C.

283, § 1, 69 Stat. 283, 15 U.S.C. § 156.

FOURTH DEFENSE TO FIRST CLAIM FOR RELIEF

15. Any differentials in the prices at which Union sold “hot

asphalt oil” of like grade and quality to persons of the same class

of trade made only due allowance for differences in the cost of

manufacture, sale, furnishing or delivery resulting from the dif-

ferent methods or quantities in which the “hot asphalt oil” was

sold, delivered or furnished to purchasers.

FIFTH DEFENSE TO FIRST CLAIM FOR RELIEF

16. Any changes in the prices at which Union sold “hot as-

phalt oil” of like grade and quality to persons of the same class

of trade were in response to changing conditions affecting the

market for or the marketability of the “hot asphalt oil’’ concerned.

SIXTH DEFENSE TO FIRST CLAIM FOR RELIEF

17. Any differentials in the prices at which Union sold

“hot asphalt oil” of like grade and quality to persons of the

same class of trade were made in good faith to meet the equally

low price of a competitor or competitors of Union or the services

or facilities furnished by a competitor or competitors of Union.

&

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:

4

oe

;

e

3

fe

4

&

MPT eh TER eT ee ee ee

Bees

Appendix 29

ANSWER TO SECOND CLAIM FOR RELIEF

18. Union denies the averments of Paragraph 21 of the

amended complaint, except that it admits that plaintiffs’ second

claim for relief purports to arise under Section 16750 of the

California Business and Professions Code.

19. Answering Paragraph 22 of*the amended complaint,

Union incorporates by this reference Paragraphs 2, 3, 4, 5, 6, 7,

8, 9, 10, and 11 of Answer to First Claim for Relief as though

the same were fully set forth at length herein.

20. Union denies the averments of Paragraph 23, 24, and 25

of the amended complaint, except that it admits that the exact

amount by which plaintiffs have allegedly been damaged has

not been ascertained or determined, and alleges that said supposed

amount cannot be ascertained or determined ‘because plaintiffs

have not been injured at all.

SECOND DEFENSE TO SECOND CLAIM FOR RELIEF

21. Plaintiffs’ second claim for relief fails to state a cause

of action against Union upon which relief may be granted.

THIRD DEFENSE TO SECOND CLAIM FOR RELIEF

22. Such of plaintiffs’ claims for relief against Union as

accrued more than four years prior to the filing of the complaint

are barred by the statute of limitations, Stats. 1963 c. 792,

California Business and Professions Code. § 16750.1.

FOURTH DEFENSE TO SECOND CLAIM*FOR RELIEF

23. This Court has no jurisdiction oves the subject matter of

the claims purportedly asserted in plaintiffs’ second claim for

relief.

CR, OR OUT A AlAs MT Pie Wr SOE ORE TAR ARE LLIEE SEALE

N

a

&

30 Appendix

Wherefore, defendant Union Oil Company of California prays

that the amended complaint be dismissed and that it have and

recover its costs. |

Dated: February 25, 1971.

Douc.tas C. GREGG

E. A. MCFADDEN

Moses LASKY

RICHARD HAAS

GeEorGE A. CUMMING, JR.

BROBECK, PHLEGER & HARRISON

By /s/ RICHARD Haas

Richard Haas

Attorneys for Defendant

Union Oil Company of California

[Certificate of Service omitted in printing }

r TAMIR tin ME tilts AOR,

Appendix 31

United States District Court for

the Central District of California

[Title of case omitted in printing}

[Filed February 26, 1971}

ANSWER OF DEFENDANT SULLY-MILLER

CONTRACTING COMPANY TO

AMENDED COMPLAINT :

Sully-Miller Contracting Company, hereafter ‘‘Sully-Miller,” t

answers plaintiffs’ amended complaint as follows: 3

‘

ANSWER TO FIRST CLAIM FOR RELIEF L

1. Sully-Miller denies the averments of Paragraph 1 of the

amended complaint, except that it admits that plaintiffs’ first

claim for relief purports to be ‘filed under the provisions of 15 f

U.S.C. § 26.

2. Sully-Miller is without knowledge or information sufficient

to form a belief as to the truth of the averments of Paragraph 2 :

of the amended complaint, except that it admits that Union Oil 4

Company of California, Sully-Miller Contracting Company, Indus-

trial Asphalt, Inc., and Edgington Oil Company each maintains

an office, transacts business or is found in the Central District of

California, and denies that it has done or performed any acts in

violation of or pursuant to any violations of Sections 1 and 2

of the Sherman Act in the Central District of California or in

any other place. |

3. Sully-Miller is without knowledge or information sufficient

to form a belief as to the truth of the averments of Paragraphs 3,

4, and 5 of the amended complaint, except that it admits that ¢

Copp Paving Company, Inc. has its principal place of business in

Artesia, California, and is engaged in the business of manufactur- P

ing and selling asphaltic concrete and in the business of grading

_ mixing plant, sometimes called a “hot plant.”

32 Appendix

and paving streets with asphaltic concrete, and that Industrial

Asphalt, Inc. operates “hot plants’’ in various places for the

manufacture of asphaltic concrete.

4. Sully-MilJer js without knowledge or information sufficient

to form a belief as to the truth of the averments of Paragraph 6

of the amended complaint, except that it admits that Union Oil

Company of California is a California corporation with its prin-

cipal place of business in Los Angeles, California, that Union

‘produces and refines crude petroleum and markets petroleum

products in, mn other places, the Central District of Cali-

fornia.

5. Sully-Miller admits the averments of Paragraph 7 of the

amended complaint, except that it denies that Union obtained

control of Sully-Miller.in 1964 or at any other time.

6. Sully-Miller is without knowledge or information sufficient

to form a belief as to the truth of the averments of Paragraph 8

of the amended complaint, except that it admits that Edgington

Oil Company has its principal place of business in Long Beach,

California, and that Edgington Oil Company refines crude petro-

leum and markets’ petroleum products in California.

7. Sully-Miller denies the enecisents of Paragraph 9 of the

amended complaint.

8. Sully-Miller is without knowledge or information sufficient

to form a belief as to the truth of the averments of Paragraph 10

of the amended complaint, except that it admits that various

products, sometimes referred to collectively as “hot asphalt oil,”

are obtained from the refining of crude petroleum, in some cases

domestic and in other cases foreign, that “hot asphalt oil” is used

in connection with the. construction, maintenance, surfacing, re-

surfacing and repairing of toads and highways, and that asphaltic

concrete paving materials are made by combining “hot asphalt

oil” with various other materials and by various methods in a

Appendix 33

9. Sully-Miller is without knowledge or information sufficient

to form a belief as to the truth of the averments of Paragraphs

11, 12, and 13 of the amended complaint, except that it admits that

approximately 14 million or more square yards of asphalt pave-

ment are ordinarily constructed annually in the United States.

10. Sully-Miller is without knowledge or information sufficient

to form a belief as to the truth of the averments of Paragraph 14

of the amended complaint, except that it admits that Union and

_Edgington operate refineries in the State of California at which

“hot asphalt oil” is manufactured, that Copp Paving Company,

Inc., Industrial, and Sully-Miller purchase “hot asphalt oil’ and

manufacture asphaltic concrete therefrom, that Union and Edging-

ton sell “hot asphalt oil” to end users and contractors, and that

such “hot asphalt oil” in some cases is used as “hot asphalt,”

and in: other cases is used as one of the constituents of asphaltic

concrete for constructing, maintaining, surfacing, resurfacing, and

repairing roads and highways, including Federal interstate sys-

tem highways and highways directly connected to interstate

highways, and denies that the business of supplying “hot asphalt

oil” or asphaltic concrete is in and directly affects interstate

commerce.

11. Sully-Miller is without knowledge or information sufficient

to form a belief as to the truth of the averments of Paragraph 15

of the amended complaint, except that it admits that Copp Paving

Company, Inc. purchases “hot asphalt oil” and manufactures as-

phaltic concrete therefrom at a “hot plant” located in Santa Fe

Springs, California, that Copp Paving Company, Inc. sells as-

phaltic concrete to third parties or uses asphaltic concrete in the

business of installing, maintaining and repairing of roads and

highways, and that in some instances Copp Paving Company,

Inc. competes with Industrial and Sully-Miller in the business of

selling asphaltic concrete and in the business of installing, main-

taining and repairing roads and highways.

TR SS een

RS

FEAR EAS EAR TE ANT 3

STREET NFHS IE PEP EE

34 Appendix

12. Sully-Miller denies the averments of Paragraphs 16, 17,

18, 19, and 20 of the amended complaint, except that it admits

_ that the exact amount by which plaintiffs havé allegedly been

damaged has not been ascertained or determined, and alleges that

said supposed amount cannot be ascertained or determined be-

cause plaintiffs have not been injured at all.

SECOND DEFENSE TO FIRST CLAIM FOR RELIEF

13. Plaintiffs’ first claim for relief fails to state a cause of

action against Sully-Miller upon which relief may be granted.

THIRD DEFENSE TO FIRST CLAIM FOR RELIEF

14. Such of plaintiffs’ claims for relief against Sully-Miller

as accrued more than four years prior to the filing of the complaint

are barred by the statute of limitations, the Act of July 7, 1955,

C. 283, §1, 69 Stat. 283, 15 U.S.C. §156.-:

FOURTH DEFENSE TO FIRST CLAIM FOR RELIEF

15. Any differentials in the prices at which Sully-Miller sold

asphaltic concrete of like grade and quality to persons of the same

class of trade made only due allowances for differences in the cost

of manufacture, sale, furnishing, or delivery resulting from the

different methods or quantities in which the asphaltic concrete

was sold, delivered or furnished to purchasers.

FIFTH DEFENSE TO FIRST CLAIM FOR RELIEF

16. Any changes in the prices at which Sully-Miller sold as-

phaltic concrete of like grade and quality to persons of the same

class of trade were in response to changing conditions affecting

the market for or marketability of the asphaltic concrete concerned.

SIXTH DEFENSE TO FIRST CLAIM FOR RELIEF

17. Any differentials in the prices at which Sully-Miller sold

asphaltic concrete of like grade and quality to persons of the

\

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%

AGM LORRI IRA POE ENERO EAE I 4 SRP MTR STRE NAY 9 SPINAL AULA IN VE OSE HAT

‘

a aad PR SF ah NES TOMA UE Pbdy DSA NER OL ANU DAO MTA LANE DW PALE REDE DR

RAO RSE TCE: ARR NMI REINS PEN CE SEREAESREN OOP

Appendix 35

same class of trade were made in good faith to meet the equally

low price of a competitor or competitors of Sully-Miller or the

services or facilities furnished by a competitor or competitors of

Sully-Miller. .

ANSWER TO SECOND CLAIM FOR RELIEF

18. Sully-Miller denies the averments of Paragraph 21 of the

amended complaint, except that it admits that plaintiffs’ second

claim purports to arise under Section 16750 of the California

Business and Professions Code.

19. Answering Paragraph 22 of the amended complaint,

Sully-Miller incorporates by this reference Paragraphs 2, 3, 4, 5,

6, 7, 8, 9, 10, and 11 of Answer to First Claim for Relief as

though the same were fully set forth at length herein.

20. Sully-Miller denies the averments of Paragraphs 23, 24,

and 25 of the amended complaint, except that it admits that the

exact amount by which plaintiffs fave allegedly been damaged

has not been ascertained or seed and alleges that said

supposed amount cannot be asceftained or determined because

plaintiffs have not been injured at all.

SECOND DEFENSE TO SECOND CLAIM FOR RELIEF

21. Plaintiffs’ second claim for relief fails to state a cause of

action against Sully-Miller upon which relief may be granted.

THIRD DEFENSE TO SECOND CLAIM FOR RELIEF

22. Such of plaintiffs’ claims for relief against Sully-Miller

as accrued more than four years prior to the filing of the complaint

are barred by the statute of limitations, Stats. 1963 c. 792, Cali-

fornia Business and Professions Code §16750.1.

FOURTH DEFENSE TO SECOND CLAIM FOR RELIEF

23. This Court has no jurisdiction over the subject matter of

the claims purportedly asserted in plaintiffs’ second claim for relief.

i) eae

Ae se a

oes ig,

no RR a SSN SS Te

36

SPELL LUO LIAN ES DO OG WE CORD, Bich ing

Appendix

WHEREFORE, defendant Sully-Miller Contracting Company

ptays that the amended complaint be dismissed and that it have

and recover its costs.

Dated: February 25, 1971.

REALONE REE IT, LONEM 48

DouGLas C. GREGG

E. A. MCFADDEN

Moses Lasky

RICHARD HAas

GeEoRGE A. CUMMING, JR.

BROBECK, PHLEGER & HARRISON

By /s/ RICHARD Haas

Richard Haas

Attorneys for Defendant

Sully-Miller Contracting Company

[Certificate of Service omitted in printing]

Appendix 37

R. W. Curtis

R. W. Fuller

F. E. Laymon

D. R. Arnett

1801 Avenue of the Stars - Suite 1402

P. O. Box 54064 Terminal Annex

Los Angeles, California 90054

Telephone: 879-0560

Attorneys for Defendants

Gulf Oil Corporation and

Industrial Asphalt, Inc.

[Filed April 23, 1971}

United States District Court

Northern District of California

In re Consolidated Pretrial Proceedings in ( Master File

Western Liquid Asphalt Cases No. 50173-RES

This document relates to:

Copp Paving Company, Inc.; Copp Equipment

Company, Inc.; and Ernest A. Copp

Plaintiffs,

v. Civil Action

Gulf Oil Company; Union Oil Company of No. 70-1394-

California; Industrial Asphalt, Inc.; Sully- RES

Miller Contracting Company; and Edging-

ton Oil Company,

Defendants.

AMENDED ANSWER OF DEFENDANTS GULF OIL

CORPORATION AND INDUSTRIAL ASPHALT, INC.

Defendants GULF OIL CORPORATION (‘Gulf’), errone-

ously named herein as “Gulf Oil Company”, and INDUSTRIAL

ASPHALT, INC. (‘Industrial’) answer plaintiffs’ Amended

Complaint, as follows:

2 PRATER TNT? RR AN oS

Pee SE SR ergy

38 Appendix

FIRST DEFENSE

1. Admit that the First Claim For Relief in the Amended

Complaint purports to be filed under the statutes referred to in

Paragraph 1; deny each and every allegation of Paragraph 1 not

herein expressly admitted.

2. Admit that answering defendants, Union Oil Compan of

California, Sully-Miller Contracting Company and Edgington Oil

Company, transact business, maintain offices, and are found

within the Central District of California; deny all of the allega-

tions of Paragraph 2 not herein admitted insofar as they relate

to these answering defendants and state they are without knowl-

edge or information sufficient to form a belief as to the truth

of the allegations insofar as they relate to any other defendants.

3. State that they are without knowledge or information sufh-

cient to form a belief as to the truth of the allegations of Para-

graph 3.

4. Admit the allegations of Paragraph 4, except allege that

defendant Gulf Oil Corporation was incorporated under the laws

of the State of Pennsylvania and has a place of business in Los

Angeles, California.

5. Admit the allegations of Paragraph 5, except allege that

defendant Industrial Asphalt, Inc. was incorporated under the

laws of the State of Delaware, and that it is engaged primarily

in the business of manufacturing and selling asphaltic concrete

at ‘“Hot Plants’ which it operates and which are located in Orange

County, Los Angeles County, Ventura County, San Luis Obispo

County, San Bernardino County, Riverside County and San Diego

County; further admit that Gulf Oil Corporation acquired all of

the capital stock of Industrial Asphalt, Inc. in 1963; deny each

and every allegation of Paragraph 5 not herein expressly ad-

mitted.

6. State that they are without knowledge or information suff-

cient to form a belief as to the truth of the allegations of Para-

graph 6.

Appendix 39

7. State that they are without knowledge or information sufhi-

cient to form a belief as to the truth of the allegations of Para-

graph 7.

8. State that they are without knowledge or information suffi

cient to form a belief as to the truth of the allegations of Para-

graph 8.

9. State that they are without knowledge or information sufh-

cient to form a belief as to the truth of the allegations of Para-

graph 9 insofar as they relate to other corporations, firms and

individuals not named as defendants in plaintiffs’ Amended

Complaint, or defendants other than these answering defendants;

deny that answering defendants participated as co-conspirators in

the violations of law alleged in the Amended Complaint.

10. Admit the allegations of Paragraph 10 except the allega-

tions of the sentence of Paragraph 10 appearing at lines 25 to

27, inclusive, Page 4, and state they are without knowledge or

information sufficient to form a belief as to the truth of the

allegations of the sentence of Paragraph 10 appearing at lines

25 to 27, inclusive, Page 4.

11. State that they are without knowledge or information

sufficient to form a belief as to the truth of the allegations of

Paragraph 11.

12. State that they are without knowledge or information

sufficient to form a belief as to the truth of the allegations of

Paragraph 12.

13. State that they are without knowledge or information

sufficient to form a belief as to the truth of the allegations of

Paragraph 13.

14. Adaxt af Gu Oil Corporation owns and operates a

petroleum refinery within the State of California at which “hot

asphalt oil” is manufactured from domestic and imported crude

petroleum; further admit that Industrial Asphalt, Inc. purchases

SEP DEP SIRS FOE ORLY ao |

La head Re tateCtatba Re

a

PRA ee Neen)

40 Appendix

“hot asphalt oil” produced from imported and domestic ciude

petroleum which it uses in the manufacture of asphaltic concrete;

allege that all of the “hot asphaltic oil” so manufactured by Gulf

Oil Corporation is sold to Industrial Asphalt, Inc.; said sale being

made within the State of California; deny the allegations of

Paragraph 14 not herein admitted insofar as they relate to these

answering defendants and state they are without knowledge or

information sufficient to form a belief as to the truth of the allega-

tions as to any other defendants.

15. State that they are without knowledge or information

sufficient to form a belief as to the truth of the allegations of

Paragraph 15.

16. Deny the allegations of Paragraph 16.

17. Deny the allegations of Paragraph 17.

18. Deny the allegations of Paragraph 18.

19. Admit that Gulf Oil Corporation acquired all of the

capital stock of Industrial Asphalt, Inc.; deny the allegations of

Paragraph 19 not herein admitted insofar as they relate to these

answering defendants and state they are without knowledge or

information sufficient to form a belief as to the truth of the allega-

tions as to any other defendants.

20. Deny the allegations of Paragraph 20 and further deny

that plaintiffs have been injured or damaged financially or other-

wise or at all as a result of any act or omission of these answer-

ing defendants.

SECOND DEFENSE

21. Admit that the Second Claim For Relief in the Amended

Complaint purports to be filed under the statutes referred to in

Paragraph 21; deny each and every allegation of Paragraph 21

not herein expressly admitted.

22. Answering Paragraph 22 these answering defendants

hereby incorporate by reference Paragraphs 2, 3, 4, 5, 6, 7, 8,

Appendix 41

9, 10, 13, 14 and 15 of this Answer as though fully set forth at

length herein.

23. Deny the allegations of Paragraph 23.

24. Answering Paragraph 24 these answering defendants

hereby incorporate by reference Paragraphs 18 and 19 of this

Answer as though fully set forth at length herein.

25. Deny the allegations of Paragraph 25 and further deny

that plaintiffs have been injured or damaged financially or other-

wise or at all as a result of any act or omission of these answer-

ing defendants.

THIRD DEFENSE

The First Claim For Relief in the Amended Complaint fails to

sfate a claim against these answering defendants upon which

relief can be granted.

FOURTH DEFENSE .

The Second Claim For Relief in the Amended Complaint fails

to state a claim against these answering defendants upon which

relief can be granted.

FIFTH DEFENSE

Plaintiffs’ alleged claims for relief are barred in whole or in

part by applicable federal and state statute of limitations.

SIXTH DEFENSE

None of the sales mentioned in the First Claim For Relief

in the Amended Complaint were made in interstate commerce,

nor did they substantially affect interstate commerce.

SEVENTH DEFENSE

If there have been any sales of “hot asphalt oil’ and asphaltic

concrete by these answering defendants in such a manner as to

eee etn. yy et

SD MEER FO ARR SR

a |

42 Appendix

discriminate in price, as alleged in the Amended Complaint, such

discriminations or differentials were such as to make only due

allowance for differences in the cost of manufacture, sale, or

delivery resulting from. the differing methods or quantities in

which such commodities were sold or delivered to purchasers.

EIGHTH DEFENSE

If there have been any sales of “hot asphalt oil” and asphaltic

concrete by these answering defendants in such a manner as to

discriminate in price, as alleged in the Amended Complaint, such

discriminations or changes in price were in response to changing

conditions affecting the market or the marketability of the com-

modities concerned.

NINTH DEFENSE

If there have been any sales of “hot asphalt oil” and asphaltic

concrete by these answering defendants in such a manner as to

discriminate in price, as alleged in the Amended Complaint, such

discriminations or differentials were made in good faith to meet

an equally low price of a competitor, or the services or facilities

furnished by a competitor.

Wherefore, defendants pray that plaintiffs take nothing by

their Amended Complaint, for their costs and expenses of suit

_

Appendix 4B

herein, and for such other and further relief as the Court may

deem proper.

Dated: March 23, 1971.

R. W. CurTIs

R. W. FULLER :

F. E. LaymON

D. R. ARNETT

By /s/ FRED E. LAYMON

F. E. Laymon

Attorneys for Defendants Gulf Oil

Corporation and Industrial Asphalt,

Inc.

[Certificate of Service omitted in printing]

ORTON:

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44 Appendix

United States District Court for

The Northern District of California

[ Title of case omitted in printing}

[Filed October 29, 1971} —

AFFIDAVIT OF ERNEST A. COPP

State of California

County of Los Angeles—ss.

Ernest A. Copp, being first duly sworn, states:

1. The affiant is now and was at all times referred to herein

the President and the controlling manager of Copp Paving Com-

pany, Inc., and Copp Equipment Company, Inc., and has spent

the last 17 years of his life actively engaged in the paving and

contracting business in the Los Angeles Basin.

2. This affidavit is directed to the affidavits of R. F. Moly-

neux and W. Duane Rash which have been submitted by the

defendant and which in the opinion of the affiant contain material

misstatement of facts as follows:

A. Referring to Paragraph 7 of the affidavit submitted

by R. F. Molyneux wherein it states “in recent years, more

than 10 firms have operated more than 45 hot plants in

that portion of Los Angeles Basin. served by Sully-Miller’s

hot plants.’’ As further set forth in the affidavit of R. F.

Molyneux at Paragraph 9 “the effective area of operation

of most hot plants in the Los Angeles Basin is 5 to 15 miles

from the plant. The result is that the firms engaged in the

production and sale of asphaltic concrete vary from one

town to the next, depending upon the location of their hot

plant and the pit from which it is supplied with aggregate,

and each hot plant in the Los Angeles Basin is thus little

_more than a neighborhood outlet for asphaltic concrete.”

B. This afhant, Ernest A. Copp, states in the south por-

tion of Los Angeles County during the recent years referred

—

Appendix 45

to by affiant Molyneux there were formerly 6 contractor-

producers that owned and operated one to three hot plants.

Of the total of these 6 in this southern area, three of said

companies were acquired by Sully-Miller and Sully-Miller in

turn was acquired by defendant Union Oil. Of the remaining

companies in the southern area of the one to three hot plant

category, two were acquired by the defendant Industrial

Asphalt, which in turn is owned by the defendant Gulf Oil.

This leaves the plaintiff Copp as the only independent pro-

ducing contractor in the southern area owning one to three

plants.

3. Referring to the Rash affidavit, Paragraph 3 thereof,

wherein it states that Sully-Miller has operated a total of eleven

hot plants during all or a portion of the period referred to in

plaintiff's interrogatories, this afhant states as follows: Within

the southern Los Angeles basin, there ate approximately thirty

hot plants. It is possible to enlarge the area of definition to

include some forty-five hot plants, but this affiant believes it is

more realistic to define the area as confined to the south Los

Angeles basin, which involves the thirty hot plants. Of the thirty

hot plants in the area, Sully-Miller owns twelve hot plants and

Industrial Asphalt owns eleven, which mathematically computes

out as follows: That defendant Sully-Miller and Industrial As-

phalt together own directly 76% of the hot plants within the

south Los Angeles basin.

4. As alleged in the Copp amended complaint, the defendant

Industrial Asphalt is owned by the defendant Gulf Oil Company.

Within the course of the last ten years, the defendant Industrial

Asphalt acquired the following companies. This list is set forth

by way of illustration and is not intended to be a complete list

of all paving companies acquired by Industrial Asphalt:

(a) Oswald Brothers—El Segundo

(b) A-1 Paving—Monrovia

Pans Em Bain hes a ait atin Sian

ft Pee at SEE ONTENTS PRT Po ee Aa,

46 Appendix

(cy Hall Company—Monrovia

(d) Arrow—El Monte

(e) Ken Golden—San Diego

(£) Norwalk. Asphalt—Santa Fe Springs

(g) C. O. Sparks—Los Angeles

(h) G. G. Fisher—South Gate

(i) Newhall Paving—Newhall

(j) Schroeder & Co.—Sun Valley

(k) Goode and Schroeder—Sun. Valley

(1) Southwest Paving—Sun Valley

(m) Corona Plant—Corona

(n) John J. Swigart—Orange

/

5. The defendant Sully-Miller is owned and controlled by the

defendant Union Oil Company. The defendant Sully-Miller has

acquired the following paving companies within the last ten

‘years:

(a) Ken Jones—Redondo Beach

(b) Warren Southwest—various locations

(c) Ansco—Long Beach

(d) S. P. Milling—Ventura

6. The companies remaining unacquired by Industrial Asphalt

and Sully-Miller are: :

(a) Vernon Paving

(b) Griffith Paving

(c) Associated Asphalt ,

(d) Hooker and Company

_(e) Copp Paving Company

(f) R.J. Noble

(g) All American Asphalt

7. In addition to the foregoing there is the South Coast

_ Asphalt Company which the affant is informed and believes,

/

Appendix 47

and based upon said information and belief alleges, is owned

fifty percent by Sully-Miller or Union Oil and is controlled in

terms of policy by Sully-Miller.

8. Of the total asphalt sold within the Los Angeles basin,

it is estimated by this affiant that Industrial Asphalt accounts for

fifty percent of the total sales and Sully-Miller accounts for thirty-

three percent and ‘the balance of seventeen percegt is represented

by the few independent contractors left within the area.

9. With reference to the question of trade secrets and pro-

cedures, the affiant states that he is well-acquainted with the 4

production procedures and your affiant can state that there are 3

no secret procedures. The equipment which is. used on the jobs E

has progressively become larger and more efficient but the basic E.

technique of paving has remained unchanged for many years. f

Trade secrets within the area are impossible for the following ‘

reasons: 3

(a) All contractors use the same union labor;

(b) The personnel used by the different companies drift

back and forth between one company and another, depend-

ing upon the general movement of employment as well as

fluctuation in demand between one company and another.

(c) All paving companies purchase utilities from the

same utility companies;

(d) All paving contractors purchase the same brands and

type of equipment for paving. ;

(e) All installations made are to specifications prescribed ;

by the owner or the contracting governmental agency. ae

(f) The formula, including amounts and grade of ma-

terial to be used in the installations, are common to all and ©

designated by code or contract.

ripen? aT

a raga RANTS

10. Because of the nature of the paving industry and the fact

that there are no special techniques which are secret to one com-

pany over another, this affiant asserts that an examination of the

RAEI VW Te PERS T

48 Appendix

cost records of the defendants, Sully-Miller and Industrial Asphalt,

will have no effect on the ability of said defendants to compete or

place them in a disadvantageous position for future jobs. The sole

and single reason for requesting this information from the defen-

dants is to determine whether said defendants were actually pricing

jobs in the area of competition with the plaintiff at a figure below

their own costs of operation for the singular and designed purpose

of preventing Copp from operating w‘thin his natural area of busi-

_ hess and ultimately eliminating Copp as a competitor, while main-

taining high prices beyond the point where the plaintiff Copp was

competing, which areas would be defined beyond the limits set

forth in the affidavit of affant W. Duane Rash.

Dated: October 27, 1971.

/S/_ ERNest A. Copp

Ernest A. Copp

{Jurat and Certificate of Service Omitted in printing]

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Appendix 49

United States District Court

Northern District of California

[Filed December 31, 1971}

In Re Coordinated Pretrial Proceedings

ie Master File

In Western Liquid Asphalt Cases No. 50173-RES

This Document Relates To: :

Copp Paving Company, Inc.,

et al.,

Plaintiffs,

oo inti) No. €-71-608-RES

Gulf Oil Company, et al., A

Defendants. ;

ORDER

Discovery in the above entitled cause is stayed until further

order of the court except as herein specifically permitted.

All parties may join in and shall respond to all discovery being

jointly pursued by the plaintiffs and defendants.

Each party shall immediately initiate a program of discovery

designed to develop the facts bearing upon the question of whether

the alleged conspiracy was one affecting interstate commerce. All

requests for admission and all interrogatories directed to that issue

shall be filed and served on or before January 20, 1972. All plain-

tiffs shall on or before January 20, 1972, send to defendants the

names and addresses of the persons connected with plaintiffs who

know the facts bearing upon the interstate commerce problem, and

defendants shall each within the same time furnish a aie 2

Either party wishing to take depositions bearing solely on the inter-

state commerce aspect of this case shall notice such depositions

within ten (10) days following the receipt of the list and shall

take the same within thirty (30) days following the receipt of i

LET VERE RIES GPE NG OS

W«

Nn ne ee ee

50 Appendix

such list. It is contemplated that discovery on this issue will be .

completed by February 19, 1972. If defendants believe that a

summary judgment on the interstate commerce point is proper

they shall file a motion therefor not later than March 1, 1972,

_ supported by a brief. Plaintiffs shall have twenty (20) days

within which to respond.

DATED this 30th day of December, 1971.

/s/ Russet E. SMitH

Russell E. Smith .

United States District Judge

Bakes

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8

Appendix 51

United States District Court for the Northern District of California

[Title of case omitted in printing]

[ Filed February 22, 1972]

ANSWERS OF PLAINTIFFS COPP PAVING COMPANY,

INC., COPP EQUIPMENT COMPANY, INC., AND

ERNEST A. COPP TO DEFENDANTS’ THIRD SET OF

INTERROGATORIES PROPOUNDED TO PLAINTIFFS

Plaintiffs Copp Paving Company, Inc., Copp Equipment Com-

pany, Inc., and Ernest A. Copp answer Defendants’ Third Set

of Interrogatories Propounded to Plaintiffs, as follows:

INTERROGATORY NO. 1:

State separately as to each plaintiff:

(a) whether he or it was engaged in the business of selling

asphaltic concrete; and

(b) whether he or it was engaged in the highway construction

business.

ANSWER TO INTERROGATORY NO. 1:

(a) Yes.

(b) Yes.

INTERROGATORY NO. 2:

State separately, as to each plaintiff, whether he or it purchased:

(a) liquid asphalt from any marketer thereof located outside

California;

(b) aggregates from any marketer thereof located outside

California;

(c) asphaltic concrete from any marketer thereof located out-

side California.

52 Appendix :

ANSWER TO INTERROGATORY NO. 2:

(a) Yes.

(b) Yes.

(c) Yes. By way of explanation of the foregoing, the items are

purchased from marketers who. since they sell to plaintiff Copp,

obviously sell in Southern Calitornia. This does not imply, how-

ever, that the same marketers do not have similar products which

they sell outside the State of California.

INTERROGATORY NO. 3:

If the answer to Interrogatory 2, or any part thereof, is affirma-

tive, state separately with respect to each such purchase, the fol-

lowing:

(a) When, where, from whom and by whom it was made;

(b) The product(s) and tonnage(s) involved and the approxi-

mate percentage of plaintiff's total purchases of that product for

that year which it represented; and

(c) The locations from which and to which delivery was made.

ANSWER TO INTERROGATORY NO. 3:

This interrogatory has previously been answered. In our previous

responses to interrogatories, we have supplied records of all of our

purchases as per invoice. For example, all of the original liquid

asphalt purchase invoices have been produced and copies of same

are in the hands of the defendant. These invoices will show where,

when and from whom each purchase was made, the product and

tonnage involved and the locatiotto which delivery was made.

INTERROGATORY NO. 4:

State separately, with respect to each plaintiff that was engaged

in the business of selling asphaltic concrete, the following:

(a) The area or areas of California in which he or it engaged

in such business and, if different, the area or areas of California

served by his or its hot plant;

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Appendix 53

(b) Whether he or it sold asphaltic concrete for use outside

California; and

(c) If the answer to (b) is affirmative, the following with te-

spect to each such sale:

(1) When and to whom it was made, and where it was

used;

(2) The product(s) and tonnage(s) involved, and the

approximate percentage of plaintiff's total sales of that

product for that year which it represented; and

made.

ANSWER TO INTERROGATORY NO. 4:

(a) The general area in which the plaintiffs do business is the

southern area of Los Angeles County, and generally confined

within a 30-35 -mile radius of the location of the plaintiffs’ hot

plant located in Artesia, California.

(b) No.

(c) Inapplicable.

INTERROGATORY NO. 5:

State separately, with respect to each plaintiff that was engaged

in the highway construction business, the following:

(a) The area or areas of California in which he or it engaged

in such business;

(b) Whether he or it performed any highway construction pro-

jects outside California; and

(c) If the answer to (b) is affirmative, the following with

respect to each such project:

(1) When, where and for whom it was performed. and

the general nature of the performance rendered;

(2) The total dollar amount received by plaintiff for his

or its performance, and the approximate percentage of

(3) The locations from which and to which delivery was

ee pe ae mame

ok TR

ELLIE SPRITE DEA RIB th

54 _ Appendix

plaintiff's total receipts from its highway construction busi-

ness in that year which it represented; and %

(3) If plaintiff furnished asphaltic concrete, liquid asphalt ‘

of aggregates in connection with the project, the product(s) 2

and tonnage(s) so furnished, and the locations from which 4

and to which delivery of each such product was made. i

ANSWER TO INTERROGATORY NO. 5: '

(a) The general area in which the plaintiffs were engaged in ;

highway construction business was the southern area of Los

Angeles County, and generally confined within a 30-35 mile radius z

of the location of the plaintiffs’ hot plant located in Artesia, :

California. bye 5

(b) No.

(c) Inapplicable.

INTERROGATORY NO. 6:

With reference to the allegations of the amended complaint

that defendants violated Section 1 of the Sherman Act by allegedly

combining and conspiring to restrain trade and commerce in the

business of selling asphaltic concrete and it: the business of trading

and paving roads and highways, state sep.trately, as to each such

business, the following:

(a) Whether plaintiffs contend that the alleged combination

and conspiracy was entered into and carried on in the course of

interstate trade and, if so, each fact on which this contention is

based; and : ;

(b) Whether plaintiffs contend that the -alleged combination

and conspiracy had a direct and substantial effect on interstate

trade and commerce and, if so, each fact on which this contention .

is based.

ANSWER TO INTERROGATORY NO. 6:

(a) Yes. The facts upon which this contention is stated to be

true are based in part upon the following:

bs

4

ABER PN GE EE | me

Appendix 55

(1) That the following facts are true as alleged in the plain-

tiffs’ complaint:

“17. Beginning at a date unknown to plaintiffs and con-

tinuing at least to the date of the filing of this complaint,

defendants, and each of them together with the co-conspir-

ators, have engaged in a continuous agreement, combination,

conspiracy and concert of action in the State of California,

including the County of Los Angeles, and in other western

states of the United States, in unreasonable restraint of inter-

state commerce and trade, in the sale of hot asphalt oil,

asphaltic concrete, and in the business of grading and pav-

ing of roads and highways and the defendants, and each

of them, have purposely and with deliberate and specific

intent, attempted to monopolize, conspired with each other

and the co-conspirators, to monopolize and did monopolize,

the aforesaid trade and commerce, all in violation of Sec-

tions 1 and 2 of the Sherman Act.

18. One of the purposes and objectives of the afore-

said combination and conspiracy to restrain and the combi-

nation and conspiracy to monopolize, attempt to monopolize

and monopolization has been the destruction and elimination

of plaintiffs as a viable entity so that: ;

(a) Plaintiffs would be eliminated as a competitor of

Industrial and Suiiy-Miller;

(b) Plaintiffs would be penalized for remaining as an

independent competitor in the manufacture and sale of as-

phaltic concrete, and in the business of grading and paving

- highways and roads.

“19. In furtherance of the above-described violations of

said Anti-trust laws, the defendants, and each of them, to-

gether with the co-conspirators, agreed to and in fact engaged,

among other things, in the following acts and practices:

2 LASTLY ELOISE LEE LE VII EN SaRS UY SRR eS SPRL IER LON ST aity Ie

aE |

Appendix.

(a) Fixed, stabilized and maintained the prices at which

hot asphalt oil would be sold to end users, including govern-

mental agencies and to hot plant owners, including plaintiffs;

(b) Allocated and exchanged between each other sup-

plies of crude petroleum and petroleum products, including,

but not limited to supplies of hot asphalt;

(c) Fixed, stabilized and maintained the prices at which

asphaltic concrete would be sold to end users, including

governmental agencies, and to contractors;

(d) Eliminated. competition and obtained and exercised

monopoly power in the operation of hot plants and in the

sale of asphaltic concrete by acquiring ownership and con-

trol of a substantial number of hot plants, including more

than sixty percent (60%) of all of the hot asphalt plants

operated in Southern California and in Los Angeles and

Orange Counties;

(e) Allocated and divided, on a geographic basis and

upon a customer basis, the outlets to whom hot asphalt oil

and asphaltic concrete would be sold;

(f) Sold asphaltic concrete at un’ easonably low prices in

the areas in which they competed with plaintiffs and sub-

sidized said unreasonably low prices by artificially maintain-

ing prices in other areas in which plaintiffs did not compete;

(g) Sold and installed asphaltic concrete at or below

cost in areas where plaintiffs competed with defendants and

subsidized said sales by artificially maintaining higher prices

in areas where plaintiffs did not compete;

(h) Threatened actual and potential customers of plain-

tiffs that unless they refrained from purchasing asphaltic

concrete from plaintiffs in plaintiffs’ area of competition,

that said customers would be unable to obtain supplies of

asphaltic concrete at a competitive price in other areas where

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Appendix 57

said customers had no other source of supply other than

defendants.

(i) Extended unreasonably advantageous credit terms to

customers in order to preclude said customers from purchas-

ing asphaltic concrete from ‘any other suppliers, including

plaintiffs;

(j) Required customers who were indebted to defendants

to purchase all of their asphaltic concrete from said defend-

ants upon threat of immediately enforcing the collection of

outstanding debt, thereby precluding said customers from

purchasing asphaltic concrete from other suppliers, including

plaintiffs;

(k) Tieu te sale of other commodities, including base

~ rock material, and tied the availability of credit to the sale

of asphaltic concrete so as to induce and require purchasers

of asphaltic concrete to purchase their supply thereof from

Sully-Miller and not to purchase their les from third

parties, including plaintiffs;

(1) Sold hot asphalt oil and asphaltic concrete in such a

manner as to discriminate in price between purchasers of

such commodities of like grade and quality where the effect

of such discrimination was to substantially lessen competi-

tion and tended to create a monopoly;

(m) Gulf acquired ail of the capital stock of Industrial,

as hereinabove alleged, and the effect thereof may be sub-

stantially to lessen competition and to tend to create a

monopoly, in violation of Section 7 of the Act of Congress

of October 15, 1914, commonly known as the Clayton Act,

15 US.C., Section 18, as amended; and

(n) Union acquired all of the capital stock of Sully-

Miller, as hereinabove alleged, and the effect of that acqui-

sition may be substantially to lessen competition, and to

tend to create a monopoly, in violation of Section 7 of the

Mi

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58 Appendix

Act of Congress of October 15, 1914, commonly known

as the Clayton Act, 15 U.S.C., Section 18, as amended.”

(2) That each of the defendants is engaged in interstate com-

merce in that their business is that of constructing and supplying

materials for the construction of Federal roads and highways

planned and controlled by the Federal Government, likewise

financed by the Federal Government under the Streets and High-

ways Act of the United States Code Annotated, Title 23 §§ 104,

et seq. :

(3) The defendants are further engaged in interstate com-

merce by virtue of the fact that a substantial portion of the crude

oil which is refined for purposes of producing the various petro-

leum products, including liquid asphalt, is brought into the State

of California from foreign countries.

(4) The defendants are further engaged in interstate com-

merce by virtue of the fact that each of the defendants does

business across state lines and does sell and transport across

state lines the specific asphaltic products which are the subject

of competition involving plaintiff Copp.

(b) Plaintiffs do contend that the alleged combination and

conspiracy had a direct and substantial effect on interstate trade

and commerce. It is plaintiffs’ understanding that where there is

a multi-state conspiracy as alleged and an agreement to divide up

the markets between the various competitors on a geographic basis

in order to avoid competition, this agreement and geographical

division has and is presumed to have, a direct and substantial

effect on interstate trade and commerce.

INTERROGATORY NO. 7:

With reference to the allegations of the amended complaint

that defendants violated Section 2 of the Sherman Act by at-

tempting to monopolize, conspiring to monopolize and mo-

danas stele

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a esc bet o-Z Set ARTI OAD LAL IE Dias wha Poe fetal BOTEE

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Appendix 59

nopolizing trade and commerce in the business of selling asphaltic :

concrete and in the business of grading and paving roads and

highways, state separtely, as to each such business, the following:

(a) The geographic area or areas in which plaintiffs contend

that defendants attempted to monopolize, conspired to monopolize

and monopolized such business;

(b) The name and address of each person, firm or corporation

that was engaged in such business in each area identified in

response to (a);

(c) Whether plaintiffs contend that such alleged attempt or

attempts to monopolize, conspiracy or conspiracies to monopolize,

and monopolization or monopolizations occurred in the course of

interstate commerce and, if so, each fact on which such con-

tention is based; and’

(d) Whether plaintiffs contend that such alleged attempt or

attempts to monopolize, conspiracy or conspiracies to monopolize,

and monopolization or monopolizations had a direct and substantial

effect on interstate commerce and, if so, each fact on which such

contention is based. '

. ANSWER TO INTERROGATORY NO. 7:

(a) The geographical areas in which it is contended the de-

fendants attempted to monopolize, conspired to monopolize and

monopolized were in the states of California, Oregon, Washing-

ton, Arizona, Nevada, and New Mexico. The names and addresses

of each firm engaged in the areas described are all’ of the defend-

ants named in the action. The plaintiff cannot at this time, with

specificity, name the geographical areas which were assigned to

each of the defendants for purposes of their exploitation to the

exclusion of the other defendants. :

(c) The answer is yes. The facts upon which said contentions

are based are (1) the defendants acquire their crude petroleum

across state lines. (2) The defendants.and each of them ship their

products across state lines. (3) The specific and primary business

Oe IP eH, PLES SED PENILE RE OL VL LES Pe CEOS POPE E.

60 . Appendix

of these defendants which relates to their areas of competition

against the plaintiff Copp is “in commerce” in that the specific

business or industry ‘referred to is the paving of highways, and

the highways concerned are to a substantial degree Federal or

interstate highways.

(d) The attempts to monopolize, the conspiracy to monopolize,

and the monopolization itself had a direct and substantial effect

on interstate commerce. The monopoly we are describing is a

geographical division of the market; and where such a territorial

division occurs, there is a reduction in competition among the

participants, and an effect on interstate commerce is presumed.

INTERROGATORY NO. 8:

With reference to the allegations in the smendeil complaint

that defendants violated the Robinson Patman Act by .allegedly

engaging in price discrimination in the sale of liquid_asphalt,

state the following:

(a) The business or businesses as to which plaintiffs contend

that the effect of such alleged price discrimination may be to

substantially lessen competition and to tend to create a monopoly,

and, with respect to each such business, each fact on which plain-

tiffs base their contention that such business was a line of inter-

state commerce;

(b) The geographic area or areus in 5! which plaintiffs contend

that the effect of stich alleged price discrimination may be to

substantially lessen competition or tend to create a monopoly;

(c) With respect to each business and geographic area identi-

fied in response to (a) and (b), the name and address of each

person, firm or corporation who engaged in that business in that

area; and

(d) Separately, with respect to each defendant who allegedly

engaged in such price discrimination, each fact.on which plain-

| tiffs base their contention that that defendant:

Appendix 61.

(1) was engaged in interstate commerce; and

(2) engaged in such alleged price discrimination in the

course of interstate commerce.

ANSWER TO INTERROGATORY NO. 8:

(a) The businesssor businesses where competition is substan-

tially lessend are the businesses identified as the oil refiners whose

business, among other things, is to produce liquid asphalt, and,

secondarily, those businesses which are asphalt applicators and

contractors. As to the first group, to wit, the refiners of liquid

asphalt, they are in interstate commerce upon the following

grounds:

(1) A substantial portion of the crude petroleum comes

from across state lines;

(2) A ‘substantial portion of the liquid asphalt products

are shipped across state lines;

(3) A vast preponderance of liquid asphalt produced by

the refiners is to be ultimately applied on interstate and

Federal roads and highways which are “in commerce.”

As to the contractors. and dealers in liquid asphalt (as dis-

tinguished from the refiners of Jiquid asphalt) the plaintiffs base

their contention that such businesses are in interstate commerce

upon the fact that:

(1) They do business across state lines;

(2) They ship their product across state lines;

(3) A substantial portion of their work which is con-

structing highways is performed on interstate and Federal

highways, which are by definition “in commerce.”

(b) The geographic areas in which the price discrimination

lessens competition and tends to create a monopoly is the area de-

Ra

SORA PEE AE PN

-— =. a

fined as the western states, including California, Arizona, Nevada,

New Mexico, Washington, and Oregon.

(c) The plaintiff cannot identify at this time the specific geo-

gtaphic areas which had been assigned by conspiratorial agree-

ment to each of the defendants for its specific exploitation. Plain-

tiff is able to state at this time that approximately eighty-five per

cent (85%) of the liquid asphalt business within Los Angeles

County is controlled by two companies, to wit, Industrial Asphalt,

which in turn is owned by Gulf Oil Company, and Sully-Miller,

which in turn is owned by Union Oil. The exact tonnage or

measured product which is sold is information within the knowl-

edge of the defendants. =

(d) The facts upon which plaintiffs contend the defendants

were in interstate commerce is set forth in Answer to Interroga-

tory No. 8 (a) hereinabove. The two defendants who are in

immediate and direct competition with the plaintiff are Sully-

Miller and Industrial. Each of said defendants does business across

state lines, and further, a substantial portion of their business is

in the construction and maintenance of interstate and Federal

highways, which is “in commerce.” The specific way the price

discrimination is carried out as between these two defendants

and the balance of the industry is by the simple means of the

parent company making liquid asphalt products available to the

subsidiary company at a price substantially less than that avail-

able to independent asphalt contractors at large. For example,

with Industrial Asphalt, Industrial purchases the total liquid :

asphalt production of the Gulf Oil Company at a price which

both Gulf and Industrial refuse to disclose and then resell the

product to the general industry likewise at a price which both

Gulf and Union refuse to disclose. It is presumed by the plaintiff

for purposes of this motion that Industrial sells their product at

a price substantially higher than the price they purchase the same

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Appendix : 63

product at and they afe, therefore, given an automatic advantage

over any competitor since the competitors are buying retail from

Industrial, while Industrial is buying wholesale from Gulf.

INTERROGATORY NO. 9:

Answer Interrogatory 8 as though the words “liquid asphalt”

used therein read “asphaltic concrete’.

ANSWER TO INTERROGATORY NO. 9:

Interrogatory No. 9 has been answered in the Answer. to In-

terrogatory No. 8 in that the two defendants, to wit, Industrial and

Sully-Miller, are producers of asphaltic concrete, and further.

that the asphaltic concrete is produced for the specific purpose of

applying same to interstate and Federal highways, and a substan-

tial portion of the business of each defendant is in the construction ,

of the interstate and Federal highways.

INTERROGATORY NO. 10:

With reference to the allegations of the amended complaint

that defendants violated Section 3 of the Clayton Act By allegedly

entering into tying agreements in connection with the sale of

asphaltic concrete, state the following:

(a) The business or businesses as to which plaintiffs contend

that the effect of such alleged tying agreements may be to sub-

stantially lessen competition and tend to create a monopoly and,

with respect to each such business, each fact on which plaintiffs

base their contention that such business was a line of interstate

commerce;

(b) The geographic area or areas in which plaintiffs contend

that the effect of such alleged tying agreements may be to sub-

stantially lessen competition or tend to create a monopoly;

(c) With respect to each business and geographic area identi-

fied in response to (a) and (b), the name and address of each

person, firm or corporation who engaged in that business in that

area; and

= Pipe ERR ENTE EPRI TILTE PO TE OR

,

eye

64 ; Appendix

(d) Separately, with respect to each defendant who allegedly

“entered into such tying agreements, each fact on which plaintiffs

base their contention that that defendant:

(1) was engaged in interstate commerce; and

(2) entered into such alleged tying agreements in the

course of interstate commerce.

ANSWER TO INTERROGATORY NO. 10:

The information requested in Interrogatory No. 10 has been

supplied by the Answer to the previous interrogatory in that the

two principal competitors of the plaintiff, are owned by the de-

fendants Gulf and Union. In all other respects, the answer to

Interrogatory No. 10 is the same as the answer to Interrogatory

No. 8.

INTERROGATORY NO. 11:

With reference to the allegations of the amended complaint

that the acquisition, by defendant Gulf Oil Corporation, of all

the capital stock of defendant Industrial Asphalt, Inc. was in

violation of Section 7 of the Clayton Act, state the following:

(a) The business or businesses in which plaintiffs contend

that the effect of such acquisition may be to substantially lessen

competition or tend to create a monopoly and, as to each such

business, each fact on which plaintiffs base their contention that

such business was a line of interstate commerce;

(b) The geographic agea or areas in which plaintiffs contend

that the effect of such acquisition may be to substantially lessen

competition or tend to create a monopoly;

(c) With respect to each such business and area identified in

- (a) and (b), the name and address of each person, firm or cor-

poration engaged in that business in that area; and

(d) Each fact on which plaintiffs base their contention that

Industrial Asphalt, Inc. was engaged in interstate commerce.

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Appendix 65

ANSWER TO INTERROGATORY NO. 11:

(a) The business_or businesses in which the effect of. such

acquisitions to substantially lessen competition and create a mo-

nopoly is (1) in the refining business, (2) in the business of

selling liquid asphalt, and (3) in the business of asphalt con-

tracting. The fact upon which plaintiffs base their contention

that the businessés are in interstate commerce are:

(1) that the crude petroleum crosses state lines;

(2) that the liquid asphalt is shipped across state lines;

(3) that the companies within the area of selling and dis-

tributing liquid asphalt and asphaltic products are doing

business across state lines;

(4) that the asphaltic products are designed and used

substantially for the construction and paving of interstate

and Federal roads, and are therefore by definition “in com-

merce.”

(b) The geographic area or areas are the western states includ-

ing California, Arizona, Nevada, New Mexico, Washington, and

Oregon. ;

(c) The names and addresses of each of the defendants are

involved, but the plaintiff cannot identify with specificity the areas

which each of the defendants have as their domain as a result of

the division of the market.

(d) (1) That Industrial Asphalt maintains and owns»

plants in Arizona and Nevada;

(2) that Industrial Asphalt shipped across state lines on |

a daily basis to Arizona and Nevada.

(3) that Industrial Asphalt takes the total supply of its

asphaltic products and, in effect, is the distributor on behalf

of Gulf Oil of its asphaltic products;

(4) that a substantial portion of work performed by In-

dustrial Asphalt is on interstate and Federal roads; and that

said roads are by definition “in commerce.”

SPIRE POLLEN ELIS IIT I OES

‘ °-~as‘though the words: “Industrial Asphalt, Inc.” used therein read

66 Appendix

INTERROGATORY NO. 12:

Answer Interrogatory 11 as though the words “Gulf Oil Corpo-

ration” used therein read “Union Oil Company of California”, and

“Sully-Miller Contracting Company.”

ANSWER TO INTERROGATORY NO.

(a) Sully-Miller Contracting Company is —. by the Union

Oil Company.

(b) Sully-Miller does business across state lines, including, but

not limited to, transactions in Utah and Thailand.

(c). Sully-Miller’s business is that of an asphalt contractor

whose major business is the constructing and paving of highways,

and a substantial portion of their work is upon interstate. and

Rect Pea et EEN ESN NS i cd Sa

Federal highways, which said work is “in commerce.” 4

Dated: February 18, 1972. :

:

Respectfully submitted, a

CorRINBLIT AND SHAPERO a

By: /s/ MARTIN M. SHAPERO 4

Martin M. Shapero é

Attorney for Plaintiffs 4

a

PME We 0 say SOS CRN URE TERI, TON, ED

Appendix ~67

VERIFICATION

State of California

County of Los Angeles—ss.

’ Ernest A. Copp, first duly sworn, states:

I am the President of Copp Paving Company and Copp Equip-

ment Company, and I am authorized to make this verification

on behalf of said companies. I have read the foregoing Answers

of Plaintiffs Copp Paving Company, Inc., Copp Equipment

Company, Inc., and Ernest A. Copp to Defendants’ Third Set

Of Interrogatories Propounded to Plaintiffs, and the matters

stated therein are true to the best of my knowledge, information

and belief.

/s/ Ernest A. Copp

Ernest A. Copp

[Jurat and Certificate of Service omitted in printing }

68 Appendix

United States District Court for the Northern District of California

[ Title of case omitted in printing]

[Filed February 22, 1972}

RESPONSE OF DEFENDANT UNION OIL COMPANY

OF CALIFORNIA TO PLAINTIFFS’ INTERROGATORIES

Union Oil Company of California, hereafter “Union,” responds

to Interrogatories Propounded by Plaintiff Copp with Reference to

the Issue of Interstate Commerce, dated January 19, 1972, as

follows:

ec a Oe

INTERROGATORY NO. 10

With reference to the source of the crude oil which your com-

pany processes, state for each year from 1958 to date the source

of said crude oil, and in said response set forth specifically:

A. The total amount of crude oil processed by your company

within the State of California for each year in question. Set forth

the number in terms of either gallons or barrels or the standard

measurement which you may use at your refinery.

B. Set forth in the measurentent used by you the amount of

oil refined for each year which is obtained by your company, the

origin of which was in the confines of the State of California.

C. Set forth in the measurement used by you the amount of

oil refined for each year which is obtained by your company, the

origin of which was outside of the confines of the State of —

California.

D. Set forth in the measurement used by you the amount of

oil refined for each year which is obtained by your company, the

origin of which was outside the confines of the continental

United States.

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Appendix ' iE

RESPONSE TO INTERROGATORY: NO. 10

Union objects to this interrogatory as to any period of time on

the ground that information respecting the sources of crude oil

processed by Univn is irrelevant to the question whether the alleged

antitrust activities in connection with the marketing of other

products occurred in or affected interstate commerce. However,

without waiving its objections to this interrogatory, and solely for

purposes of moving this case along and avoiding a dispute over

inconsequential matters, the information requested for the years

1966 through 1970 is set forth in Exhibit A hereto.

INTERROGATORY NO. 11 ;

State the location of each refinery owned by your company P

' within the State of California, identifying the period of time

said refinery has been in existence from the years 1958 to date.

A. With reference to the refineries identified herein, set forth

and state the capacity of each refinery in terms of the total crude

oil processed by said refinery for each year, from 1958 to date.

B. State for each refinery the total amount of petroleum

products produced by each refinery from 1958 to date, including

Soh: Te OY

NLA ANT SNES PAINE ENS

gasoline, kerosene, motor oil, and liquid asphalt production. (The

list requested is by way of example only, and if any other petroleum

products are produced, you will set forth each and every other

petroleum product so produced including quantity thereof.)

RESPONSE TO INTERROGATORY NO. 11

During all of the period June 24, 1966 to December 30, 1970,

Union owned the following refineries in the State of California:

Los Angeles Refinery ;

Wilmington, California f

San Francisco (Oleum) Refinery

Rodeo, California

SSS Be eee PE LOI WA I Ee, Oe eB

70 Appendix

Santa Maria Refinery

Arroyo Grande, California

The total amounts of crude oil processed by each such refinery

during the years 1966 through i970, and the total amounts of

liquid asphalt produced at each such refinery during the years

1966 through 1970 are set forth in Exhibit B hereto. Except as

so answered, Union objects to this interrogatory on the ground

that information respecting petroleum products other than liquid

asphalt is irrelevant.

INTERROGATORY NO. 12

For each of the petroleum products so identified in response

to Interrogatory No. 11 hereinabove, state for each year in ques-

tion the total volume of said product sold and distributed within

the confine} of the State of California.

A. For each of the petroleum products so identified in response

to Interrogatory No. 11 hereinabove, state for each year in ques-

_ tion the total volume of said product sold and distributed out-

side the confines of the State of California.

B. For each of the petroleum products so identified in response

to Interrogatory No. 11 hereinabove, state for each year in ques-

tion the total volume of said product d distributed out-

side the confines of the continental _

RESPONSE TO INTERROGATORY NO. 12

The total amounts of liquid asphalt sold by Union to customers

located in these areas during the years 1966 through 1970 are set

forth in Exhibit C hereto. However, the summary sales records

from which these figures were taken include both sales of liquid

asphalt produced in Union’s California refineries and sales of

liquid asphalt produced elsewhere. If plaintiffs wish to know only

the amount of liquid asphalt sold by Union that was produced

by it in its California refineries, it will be necessary to tabulate

ee ne Gee eA Pee ee SN ae eg Fee

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Appendix 71

this information from Union Form 625, Asphalt Report, and,

pursuant to R.C.P. Rule 33(c), Union will make such records

available if plaintiffs wish to perform this tabulation. Except as

so answered, Union objects to this interrogatory on the ground

that information respecting petroleum products other than liquid

asphalt is irrelevant.

INTERROGATORY NO. 13

With reference to all crude oil which you have hereinabove

identified as its origin being outside the confines of the State

of California, identify the means by which you received said oil

including a description of the specific boat lines if said oil was

received by boat, or the specific railroad lines if said oil was

received by rail.

RESPONSE TO INTERROGATORY NO. 13

During the period June 24, 1966 to December 30, 1970, all

such crude oil was received by tankships, in some instances tank-

ships owned or chartered by Union, and in other instances tank-

ships owned or chartered by other operators, the specific names

of whom cannot possibly be relevant to this case.

INTERROGATORY NO. 14

With reference to all petroleum products shipped outside the

confines of the State of California by you, identify the means by

which you shipped said oil including a description of the specific

railroad lines if said oil was shipped by rail.

RESPONSE TO INTERROGATORY NO. 14

During the period June 24, 1966 to December 30, 1970, Union

shipped liquid asphalt by tankships owned or chartered by Union

and, occasionally, by various rail or truck common carriers, the

specific names of whom cannot possibly be relevant to this case.

Except as so answered, Union objects to this interrogatory on

RTE ANE RIE ee PEED Pa EH Da PERSTO SADE IW CENT Rete A CME

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72 Appendix

the ground that information respecting the shipment of petroleum

products other than liquid asphalt is irrelevant to this case.

INTERROGATORY NO. 15

With reference to liquid asphalt, set forth for each year from

1959 to the present, the total amount of liquid ‘asphalt shipped

to the states of:

A. Washington;

B. Oregon;

C. Nevada;

D. New Mexico.

RESPONSE TO INTERROGATORY NO. 15

The total amounts of liquid asphalt shipped by Union from its

California refineries to its Edmonds, Washington and Portland,

Oregon asphalt topping plants in the years 1966 through 1969

are set forth in Exhibit D hereto. However, in order to determine

the total amounts shipped by Union to these states, it is necessary

to add to the figures set forth in Exhibit D the amounts of liquid

asphalt sold by Union to customers in these states that was shipped

by Union from its California refineries to these customers. Such

figures can be derived by tabulating the information contained

in Union Form 625, Asphalt Report, and Union Form 605-T,

Order/Invoice. Pursuant to R.C.P. Rule 33(c), Union will make

such documents available if plaintiffs wish to perform this tabu-

lation. In the case of shipments by Union to Nevada, the same

tabulation must be performed. Union shipped no asphalt to New

Mexico.

INTERROGATORY NO. 16 a

With reference to sales made within the State of California,

set forth for the years 1958 to the present, the total amount of

liquid asphalt sold in each county of the State of California,

Nee eet eee gee De ae na EARLE EIS DED

Pian RY

Appendix ° a.

INTERROGATORY NO. 17 ;

With reference to the sale of liquid asphalt, identify for each

year from 1958 to date, each company to whom you have sold

liquid asphalt, setting forth by way of summary for each year

the total amount of liquid asphalt sold to said individual company.

(Listing, for example, the total amount of liquid asphalt sold

by Gulf to Sully-Miller for the year 1965.)

RESPONSE TO INTERROGATORIES NOS. 16 AND 17

This information ¢an only be derived by tabulating sales data

"contained in Union Form 625, Asphalt Report. Pursuant to R.C.P.,

Rule 33(c), Union will make such documents available if plain-

tiffs wish to perform this tabulation.

Dated: February 22, 1972.

Douglas C. Gregg.

; E. A. McFadden

Moses Lasky

Richard Haas

.George A. Cumming, Jr.

Brobeck, Phleger & Harrison

By /s/ GrorGe A. CUMMING, JR.

George A. Cumming, Jr.

Attorneys for Defendant Union Oil

Company of California

/

Appendix

é EXHIBIT A

Sources of Crude Oil Processed in Union's

California Refineries, 1966-1970 (Bbls )

California =, Othor US. Foreign Total

WO iatieciiitddiolentic 61,691,830 , None 2,445,335 64,137,165

; gS RAIS 62,116,132 1,706,688 1,231,527 65,054,347

attire 57,268,214 10,625,447 873,010 68,766,671

ge OC REGRE AAO ai 59,653,070 13,420,006 2,807,035 69,880,111

©1970 sacs seiisnncisa evre 91,679,237 10,720,427 —- 1,698.087 64,097,751

EXHIBIT B

Crude Oil Processed and Liquid Asphalt

Produced in Union's California : ‘

‘Refineries, 1966-1970

, Total Crude - Total Asphalt

Refinery & Year ; Processed (Bbis) Produced (Tons)

1966—Los Angeles 34,119,607 . 173,818

Santa Maria 11,292,692 41,071

San Francisco : 18,724,866 137,296

1967—Los Angeles .. 33,427,793 173,464

Santa Maria . 12,154,616 34,189

San Francisco 19,471,938 116,478

1968—Los Angeles 36,233,999 168,749

. Santa Maria | 12,543,723 , 42,437

San Francisco 19,988,949 119,881

1969—Los Angeles | 37,106,852 163,787

Santa Maria : 11,575,400 40,466

| San Francisco 21,192,859 152,558

1970—Los Angeles * 32,075,603 225,458

Santa Maria 10,631,171 40,651

San Francisco , : 21,390,997 161,334

| EXHIBIT C

f Sales of Liquid Asphalt by Union, 1966-1970

(Tons) ,

Year California Other U.S. Foreign

1966 . 239,292 141,329 3,654

1967 218,354 121,870 3,799

1968 246,792 232,984 Not available

1969 269,157 262,964 2,044

* 1970 285,504 304,171 17,049 ;

Appendix 75

EXHIBIT D

Shipments of Liquid Asphalt by Union to lis Edmonds, Washington, and

Portland, Oregon Asphalt Plants

1966-1970

(Tons)

Year Edmonds Portland

1966 ... ve 75,194 —o—

1967 74,041 -—-0-—

1968 —0— 17,032

1970 11,291 84,337

VERIFICATION

State of California

County of Los Angeles—ss.

R. P. ‘Van Zandt, first duly sworn, states:

I am ‘dn officer, to wit Assistant Secretary of Union Oil Com-

pany of California, a corporation, and am authorized to and make

this vertification on behalf of said corporation. I have read the

foregoing Response of Defendant Union Oil Company of Cali-

fornia to Plaintiffs’ Interrogatories, and the information stated

therein is true, to the best of my knowledge, information and

belief.

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76 Appendix

United States District Court for the Northern District of California

{Title of case omitted in printing}

[Filed February 22, 1972]

RESPONSE OF DEFENDANT UNION OIL COMPANY

OF CALIFORNIA TO PLAINTIFFS’

REQUESTS FOR ADMISSIONS

Defendant Union Oil Cothpany of California (hereafter

“Union"’) responds to “Requests For Admissions Filed Pursuant to

The Order Of Court Dated December 30, 1971, Relating To The

Issue Of Interstate Commerce And Whether The Alleged Con-

. Spiracy Was One Affecting Interstate Commerce,” dated January

19, 1972, as follows:

REQUEST FOR ADMISSION NO. 3:

That the Federal Government contributes a portion of the cost

of construction of certain public highways.

RESPONSE TO REQUEST FOR ADMISSION NO. 3:

Union objects to this request, and to requests numbers 4 through

16, which are of a similar vein, on the ground that whether or

not the Federal Government contributed money in connection with

‘local hi ghway construction projects, or whether the Federal Govern-

ment required any particular kind of performance or behavior as

a condition of its contribution, is irrelevant to the question of

interestate commerce. However, without waiving this objection, and

solely for the purpose of moving this case along and avoiding a

dispute over inconsequential matters, Union admits that the mat-

ter stated in this request is true.

Fare LEI So ee RE a AE aT Bets By Seas

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Appendix 77

REQUEST FOR ADMISSION NO. 4:

That the basis of such Federal participation is the Federal Aid

Highway Act (23 U.S.C., Sections 101 through 141).

RESPONSE TO REQUEST FOR ADMISSION NO. 4:

Without waiving the objection to this request previously set

forth in its Response to Request for Admission No. 3 and, again,

solely for the purpose of moving this case along and avoiding a

dispute over inconsequential matters, Union admits that the matter

set forth in this request :. true.

REQUEST FOR ADMISSION NO. 5:

That under the Federal Aid Highway~Act referred to here-

inabove, the Federal Government assumes up to ninety percent-~~+"

(90%) of the highway construction costs (23 U.S.C. 120) upon

approval by the Secretary of Commerce of the plans and specifi-

cations submitted by the various state highway departments (23

U.S.C. Section 109). “

RESPONSE TO REQUEST FOR ADMISSION NO. 5:

Without waiving the objection to this request previously set

forth in its Response to Request for Admission No. 3 and, again,

solely for the purpose of moving this case along and avoiding a

dispute over inconsequential matters, Union admits that the matter

set forth in this request is true.

REQUEST FOR ADMISSION NO. 6:

To qualify for contributions by the Federal Government the

state must conform to standards set forth in the statute, such as

vehicle.weight and width limitations (23 U.S.C., Section 127),

* control of outdoor advertising (23 U.S.C., Section 131), creation

of a highway safety program (23 U.S.C., Section =e control

of junk yards (23 U.S.C., Section 136).

RESPONSE TO REQUEST FOR ADMISSION NO. 6:

Without waiving the objection to this request previously set

forth in its Response to Request for Admission No. 3 and, again,

oy

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PERS CO FLY el RR IIS GES? ae

78 Appendix

solely for the purpose of moving this case along and avoiding a

dispute over inconsequential matters, Union admits that the matter

set forth in this request is true.

REQUEST FOR ADMISSION NO. 7:

That each project is subject to the inspection and approval of

the Secretary of Transportation and was formerly under the con-

trol of the Secretary of Commerce.

RESPONSE TO REQUEST FOR ADMISSION NO. 7:

Without waiving the objection to this request previously set

forth in its Response to Request for Admission No. 3 and, again,

solely for the purpose of moving this case along and avoiding

a dispute over inconsequential matters, Union admits that the

matter set forth in this request is true.

REQUEST FOR ADMISSION NO. 8:

That all wages paid for laborers and mechanics employed by

contractors or subcontractors on roads funded by the Federal Aid

Highway Act are controlled by the Davis-Bacon Act (40 U.S.C.,

Section 276A) (23 U'S.C., Section 113).

RESPONSE TO REQUEST FOR ADMISSION NO. 8:

Without waiving the objection to this request previously set

forth in its Response to Request for Admission No. 3 and, again,

solely for the purpose of moving this case along and avoiding

a dispute over inconsequential matters, Union admits that the

matter set forth in this request is true.

REQUEST FOR ADMISSION NO. 9:

That small business enterprises are to be assisted by the Secre-

tary insofar as feasible in obtaining contracts in order to encour-

age full and free competition under the Federal Aid Highway

Act (23 US.C., Section 304).

¢: RA Be a TEIN EE AEDES LB SRA Beg a AR ROSTRLEERY

Appendix : 79

ne

ann

RESPONSE TO REQUEST FOR ADMISSION NO. 9:

Without waiving the objection to this request previously set

forth in its Response to Request for Admission No. 3 and, again,

solely for the purpose of moving this case along and avoiding a

dispute over inconsequential matters, Union admits that the mat-

ter set forth in this request is true.

REQUEST FOR ADMISSION NO. 10:

That any state declaring to avail itself of the provisions of

the Federal Aid to Highway Act (Title 23, U.S.C. 101 et seq.)

shall have a highway department which shall have adequate

powers and be suitably equipped and organized to discharge to

the satisfaction of the Secretary the duties required by the Act

(23 US.C., Section 302).

RESPONSE TO REQUEST FOR ADMISSION NO. 10:

Without waiving the objection to this request previously set:

forth in its Response to Request for Admission No. 3 and, again,

solely for the purpose of moving this case along and avoiding

a dispute over inconsequential matters, Union admits that the

matter set forth in this request is true.

REQUEST FOR ADMISSION NO. 11:

That the State of California has qualifted to receive and does

receive funds from the Federal Government pursuant to Title 23

USC. Section 101 et seq.. and assents specifically to the provi-

sions of Title 23 of the United States Code relative to Federal

aid and other cooperative highway work (Section 820, Streets

and Highways Code of the State of California).

RESPONSE TO REQUEST FOR ADMISSION NO. 11:

Without waiving the objection to this request previously set

forth in its Response to Request for Admission No. 3 and, again,

solely for the purpose of moving this case along and avoiding

a dispute over. inconsequential matters. Union admits that \the

matter set forth in this request is true.

) ~ . 7 <— sae Ke gt

PE TNO NAL SEEMS eR EE RIS OMS ts BERS Sr |

80 Appendix

REQUEST FOR ADMISSION NO. 12:

That the State of California has apportioned ninety-eight and

one-half percent (982%) of the money received by it under. the

Federal Highway Act of 1950 for the improvement of county

highways (Section 201, Streets and Highways Code of the State

of California).

RESPONSE TO REQUEST FOR ADMISSION NO. 12:

Without waiving the objection to this request previously set

forth in its Response to Request for Admission No. 3 and, again,

solely for the purpose of moving this case along and avoiding

a dispute over inconsequential matters, Union admits that the

matter set forth in this request is true.

REQUEST FOR ADMISSION NO. 13:

That the plaintiff Copp, in order to perform work on county

roads funded by the United States Government under the Federal

Highway Aid Act (23 U.S.C. Section 101 et seq.) is required -

to comply with all the provisions of the executed order No.

11246, dated September 24, 1965.

RESPONSE TO REQUEST FOR ADMISSION NO. 13:

Without waiving the objection to this request previously set

forth in its Response to Request for Admission No. 3 and, again,

solely for the purpose of moving this case along and avoiding

a dispute over consequential matters, Union admits that the

matter set forth in this request is true.

REQUEST FOR ADMISSION NO. 14:

That the defendant Sully-Miller, in order to perform work on

the county roads funded by the United States Government under

the Federal Highway Aid Act (23 U.S.C., Section 101 et seq.),

is required to comply with all the provisions of the executed

order No. 11246, dated September 24, 1965.

RESPONSE TO REQUEST FOR ADMISSION NO. 14: -

Without waiving the objection to this request previously set

forth in its Response to Request for Admission No. 3 and, again,

j

SERN ENE RP MANNOSE SLE SHEE OTAGO IONE NAL E ee

Appendix 81

solely for the purpose of moving this case along and avoiding

a dispute over inconsequential matters, Union admits that the

matter set forth in this request is true.

REQUEST FOR ADMISSION NO. 15:. &

That the defendant Industrial, in order to perform work on —

county roads funded by the United States Government under the

Federal Highway Aid Act (23 U.S.C., Section 101 et seq.), is :

:

required to comply with all the provisions of the Executive Order

No. 11246, dated September 24, 1965.

RESPONSE TO REQUEST FOR ADMISSION NO. 15:

Without waiving the objection to this request previously set

forth in its Response to Request for Admission No. 3 and, again, :

solely for the purpose of moving this case along and avoiding :

a dispute over inconsequential matters, Union admits that the :

matter set forth in this request is true. 3

REQUEST FOR ADMISSION NO. 16: ;

Attached hereto and 1aade a part hereof are a group of docu-

ments labeled Exhibit “A”, 1 through 11 respectively. Does

Sully-Miller admit the documents so identified as “A” 1 through

11 are true and correct photostatic documents submitted by

Sully-Miller on or about the date, February 2, 1970, reflecting

the compliance by Sully-Miller to Executive Order 11246.

RESPONSE TO REQUEST FOR ADMISSION NO. 16:

This request is not addressed to Union.

REQUEST FOR ADMISSION NO. 17:

That the defendant Gulf owns all the outstanding stock of the

defendant Industrial.

* RESPONSE TO REQUEST FOR.ADMISSION NO. 17:

Admitted. a

REQUEST FOR ADMISSION NO. 18:

That Union Oil owns all the stock of the defendant Sully-Miller.

Sys, = oni ae os .

EOS A ISOMERS LENE YRS PE SARE PREY ates 2 POLE EE EERSTE IOS SOD EE, ONE IEE : |

PEER NVA LN TS

82 Appendix

RESPONSE TO REQUEST FOR ADMISSION NO. 18:

Admitted.

REQUEST FOR ADMISSION NO. 19:

That the defendant Union is engaged in intérstate commerce.

RESPONSE TO REQUEST FOR ADMISSION NO. 19:

Union admits that, in some of its operations, it is engaged in

interstate commerce, denies that, in other of its operations, it is

so engaged, and specifically denies that it is or was engaged in

interstate commerce when it sells or sold, to customers located in

California, liquid asphalt refined in California.

REQUEST FOR ADMISSION NO. 20:

That the defendant Gulf is engaged in interstate commerce.

RESPONSE TO REQUEST FOR ADMISSION NO. 20:

Union admits that, in some of its operations, defendant Gulf

is engaged in interstate commerce, denies that, in other of its

operations, defendant Gulf is so engaged, and specifically denies

: that defendant Gulf is or was engaged in interstate commerce

when defendant Gulf sells or sold, to customers located in Cali-

fornia, liquid asphalt refined in California.

REQUEST FOR ADMISSION NO. 21:

That the defendant Edgington is engaged in interstate commerce.

RESPONSE TO REQUEST FOR ADMISSION NO. 21:

Union has made reasonable inquiry, but the information known

3 to it is insufficient to enable it to admit or deny the matter stated

in this request. Union is therefore without knowledge or informa-

tion sufficient to permit it to truthfully-admit or deny the matter

3 stated.

: REQUEST FOR ADMISSION NO. 22:

J ie That the defendant Edgington ships some of the hot asphalt oil

: produced by it to other states of the United States, and sells hot

asphalt oil to customers located in other states.

Meares se tx ios Os

Appendix 83

RESPONSE TO REQUEST FOR ADMISSION NO. 22:

Union admits that defendant Edgington sells hot asphalt oil to

customers located in states other than California and has made a

reasonable inquiry as to the remaining matter set forth in this

request, but the information known to Union is insufficient to

" permit it to admit or deny the remaining matters stated. Union

is therefore without knowledge or information sufficient to permit

it to truthfully admit or deny that defendant Edgington ships

some of the hot asphalt oil produced by it to other states of the

United States.

REQUEST FOR ADMISSION NO. 23:

That the defendant Union ships some of the hot asphalt oil

produced by it to other states of the United States, and sells hot

asphalt oil to customers located in other states.

RESPONSE TO REQUEST FOR ADMISSION NO. 23:

Admitted.

REQUEST FOR ADMISSION NO. 24:

That the defendant Gulf ships some of the hot asphalt oil

produced by it to other states of the United States, and sells hot

asphalt oil to customers located in other states.

RESPONSE TO REQUEST FOR ADMISSION NO. 24:

Denied.

Dated: February 18, 1972.

Douglas C. Gregg

E. A. McFadden

Moses Lasky

Richard Haas

George A. Cumming, Jr.

Brobeck, Phleger & Harrison

Sonata

RPS Areelyh PRE

Appendix

By /s/ GEorGE A. CUMMING, JR.

George A Cumming, Jr.

Attorneys for Defendant Union Oil

Company of California

[Certificate of Service omitted in printing]

=

Bi Cir LOE BRE cia WB PRG IIA SE SLUR LOM BENE LE BILE ESE LL, ARIE VOLS ALAS BR ALLE DAI AE i

Appendix 85

United States District Court for the Northern District of Califoritia

[ Title of case omitted in printing}

[ Filed February 22, 1972]

RESPONSE OF DEFENDANT SULLY-MILLER

CONTRACTING COMPANY TO PLAINTIFFS’

INTERROGATORIES

Sully-Miller Contracting Company, hereafter ‘‘Sully-Miller’,

responds to Interrogatories Propounded by Plaintiff Copp with

Reference to the Issue of Interstate Commerce, dated January 19,

1972, as follows:

INTERROGATORY NO. 18

List for each year from 1958 to date the total amount of

liquid asphalt purchased by your organization.

INTERROGATORY NO. 19

With referénce to liquid asphalt purchases set forth hereina-

bove, state for each year from 1958 to date by volume the total

amount of asphalt purchased, identifying ‘the company from

which said purchases were made. (For example, Industrial will

please state the total amount of liquid asphalt purchased from

Union for the year 1965.)

RESPONSE TO INTERROGATORIES NOS. 18 AND 19

All the liquid asphalt. purchased by Sully-Miller came from

refineries located in California. During the years 1966 through

: 1970, these purchases were as follows:

tar |

SOT errr

Appendix

«

Vendor Tons

Edgington Oil Company 20,584

Union Oil Company 93,898

‘Total 114,482

Chevron Asphalt Company 4,551

Edgington Oil Company 8,277

Union Oil Company : 82,843

Total 95,671

Chevron Asphalt Company 4,413

Edgington Oil Company 10,955

Union Oil Company 97,493

Total 112,861

aes Chevron Asphalt Company 4,778

Edgington Oil Company 7,597

Union Oil Company 75,859

Total 88,234

Chevron Asphalt Company 6,816

Edgington Oil Company | 13,316

Union Oil Company 83,219

Total 103,351

Except as so answered, Sully-Miller objects to this interrogatory

on the ground that the information called for is irrelevant.

INTERROGATORY NO. 20

Set forth the geographical location and address of each and

every hot plant owned by you now and for each year from 1958

until present.

RESPONSE TO INTERROGATORY NO. 20

See Exhibit-A hereto.

INTERROGATORY NO. 21

,

——-With-referenceto-each_hot plant so identified in previous’ In-

terrogatory No. 20, please state after identifying said hot plant

how said hot plant was obtained; from whom was said hot plant

obtained and what was the method wo which said hot seco was

—-*

ie ws

Appendix 87

RESPONSE TO INTERROGATORY NO. 21

See Exhibit A hereto.

INTERROGATORY NO. 22

For each hot plant so identified for each year in question iden-

tify and state by volume the total amount of asphalt sold by you

outside the confines of the State of California.

RESPONSE TO INTERROGATORY NO. 22

Sully-Miller sold no asphalt at all. If this interrogatory was

intended to refer to asphaltic concrete, Sully-Miller sold no

asphaltic concrete outside the confines of the State of California

at any time.

INTERROGATORY NO. 23

With reference to each year from 1958 to the present, identify

the total amourt of asphalt sold in each county of the State of

California. (For example, set forth for each year from 1958 to

date the total amount of asphalt sold in Alpine County.)

RESPONSE TO INTERROGATORY NO. 23

Sully-Miller sold no asphalt at all. If this interrogatory was

intended to refer to asphaltic concrete, all sales of asphaltic con-

crete by Sully-Miller were made either f.0.b. its various hot

plants, all of which were located in Los Angeles and Orange

Counties, California, or f.o.b. various jobsites, all of which were

located in Los Angeles County, Orange County or counties con-

tiguous thereto. Except as so answered, Sully-Miller objects to

this interrogatory on the ground that the information called for

is irrelevant.

INTERROGATORY NO. 24

Is it tga contention that your ies tae is not involved in

interstate” sommerce?

“re ranopeiaecs ili.

ee ee Ee

Appendix

RESPONSE TO INTERROGATORY NO. 24

88

Yes.

_ INTERROGATORY NO. 25 ,

If the response to the foregoing question is to the effect that

you are not involved in interstate commerce, is it your contention ba

that your company must not. abide by Executive Order No. A

‘11246, which is described as the “—e Employment ee i

Program ? 3

RESPONSE TO INTERROGATORY NO. 25

_ Sully-Miller need not abide by Executive Order No. 11246

unless, in the exercise of its own business judgment, it chooses

to do so. This is so because the Order applies only to contractors

and subcontractors performing work on certairy federally assisted

construction projects, and if Sully-Miller choéses not to perform

such work, the Order does not apply to Sully-Miller. Thus,

whether or not Sully-Miller abides by the Order is irrelevant to

' the question of interstate commerce, because the Order is capable

4 of reaching both those who are engaged in interstatێ commerce

and those, like Sully-Miller, who are not so engaged.

INTERROGATORY NO. '26 ¥

Does your company comply with Executive Order No. 11246,

as amended ?

SAPS ee

RESPONSE TO INTERROGATORY NO. 26

Yes, as a matter of its own business judgment, but whether -

or not Sully-Miller complies with the Order is irrelevant to the

question of interstate commerce, for the reasons stated in Sully-

Miller's response to Interrogatory No. 25.

INTERROGATORY NO. 27 | 3

Attached hereto and made a part hereof, marked Exhibit “B”,

is a letter bearing the date June 30, 1970, which purports to-be —

. - ‘a

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ae

LDP POD LEAL LOOP LD EE RIED OE AEA OE ALE LL TNS a a LE A at PN ODA A NALD ARG HOG HP

Appendix 89

special instruction to bidders, prepared by the Board of Supervi-

sors of the County of Los Angeles, State of California, under

the direction of James S. Mize, Executive Officer and Clerk of

the Board of Supervisors. Are you familiar with the requirements:

as set forth in Exhibit “B”, and in this regard, does your com-

pany follow the policies as required by said instruction pursuant

to Executive Order 11246, as amended ?

RESPONSE TO INTERROGATORY NO. 27

Sully-Miller is familiar with these requirements and follows

the policies referred to as a matter of its own business judgment,

but whether or not it does so is irrelevant to the question of

interstate commerce, for the reasons stated in Sully-Miller’s re-

sponse to Interrogatory No. 25.

Date: February 18, 1972.

Douglas C, Gregg

E. A. McFadden

Moses Lasky

Richard Haas

George A. Cumming, Jr.

Brobeck, Phleger & Harrison

By ; /s/ GEorGE A. CUMMING, JR.

George A. Cumming, Jr.

Attorneys for Defendant Sully-

Miller Contracting Company

m8 RAD, AGRE Hea YS Oe a RAAT . 8a

Redondo Beach Plant

2901 182nd Street

Redondo Beach, Calif.

Long Beach Plant

2nd & Walnut

Long Beach, Calif.

El Monte Plant

5500 N. Peck Road

EI Monte, California

Capristrano Plant

29261 Rosenbaum Road

San Juan Capristrano, Calif.

South Gate Plant

53625 Southern Ave.

South Gate, Calif.

Santa Ana Plant

2818 Barranca

Santa Ana, Calif.

Torrance Plant

20900 S. Normandie

Torrance, Calif.

Duarte Plant

1112 E. Meridian

Duarte, Calif.

Inglewood Plant

441 Railroad Place

inglewood, Calif.

90 Appendix | J

EXHIBIT A

HOT PLANTS OWNED BY SULLY-MILLER, 1958-1972

:

Period Owned by Sully-Miller,

Name and Address Method of Acquisition, Etc.

Orange Plant ‘ 1958-1972. Constructed by Sully-Miller

6145 Santiago Canyon Rd. prior to 1958.

Orange, California

Huntington Beach Plant 1958-1972. Constructed by Sully-Miller

7221 Ellis Street prior to 1958,

Huntington Beach, Calif.

ace

1962-1969. Acquired through merger

with Contractors Asphalt Sales Company.

1964-1972. Purchased from ANSCO

Company.

1965-1972. Acquired through merger

with Valley Asphalt Sales Company.

1965-1972. Acquired through merger

with Contractors Asphalt Products Com-

pany.

"1965-1972. Acquired through merger

with Contractors Asphalt Products Com-

pany.

1965-1972. Constructed by Sully-Miller.

1965-1972. Purchased from Warren

Southwest Company.

1965-1970. Purchased from Warren

Southwest Company. _

1966-1972. Physical equipment purchased

from Warren Southwest Company at Palm-

dale, California and moved to Inglewood

location on property leased by Sully-Miller. -

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Appendix 91

VERIFICATION

State of California

County of Los Angeles—ss.

Robert K. MacGregor, first duly sworn, states:

I am an officer, to wit: President, of Sully-Miller Contracting

Company, a corporation, and am authorized to and make this

verification on behalf of said corporation, 1 have read the fore-

going response of Defendant Sully-Miller Contracting Company

to Plaintiffs’ Interrogatories, and the information stated therein

is true to the best of my knowledge, information and belief.

* ./s/ RoBeRT K. MACGREGOR

{Jurat and Certificate of Service omitted in printing}

EER REALISE LOTT TL NES NEE BE AL ME EE HIE IP I SE

- FAS RE GBM AE He? . *

. “Appendix —

United States District Court for the Northern District of California

[Title of case omitted in printing}

[Filed February 22, 1972}

RESPONSE OF DEFENDANT SULLY-MILLER

CONTRACTING COMPANY TO PLAINTIFFS’

REQUEST FOR ADMISSIONS

Defendant Sully-Miller Contracting Company (hereafter

“Sully-Miller’”J “responds to “Requests for Admissions Filed Pur-

suant To The Order Of Court Dated December 30, 1971, Relat-

ing To The Issue Of Interstate Commerce And Whether The

Alleged Conspiracy Was One Affecting Interstate Commerce,”

dated January 19,1972, as follows:

* * * * 6

REQUEST FOR ADMISSION NO. 3:

That the Federal Government contributes a portica of the cost

of construction of certain public highways.

- RESPONSE TO REQUEST FOR ADMISSION NO. 3:

Sully-Miller objects to this request, and to requests numbers 4

through 16, which are of a similar vein, on the ground that

whether or not the Federal Government: contributed money in

connection with local highway construction projects, or whether

the Federal Government required any particular kind of perform-

ance or behavior as a condition of its aN, is irrelevant

to the question of interstate commerce.

However, without waiving this objection, and solely for the

purpose of moving this case along and avoiding a dispute over

inconsequential matters, Sully-Miller admits that the matter stated

in this request is true.

REQUEST FOR ADMISSION NO. 4:

That the basis of such Federal participation is the Federal Aid

_ Highway Act (23 U.S.C., Sections 101 through 141).

. ‘ . —

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Appendix . 93

RESPONSE TO REQUEST FOR ADMISSION NO. 4:

Without waiving the objection to this request previously set

forth in its Response to Request for Admission No. 3 and, again,

solely for the purpose of moving this case along and avoiding

a dispute over inconsequential matters, Sully-Miller admits that

the matter set forth in this request is true.

REQUEST FOR ADMISSION NO. 5:

That under the Federal Aid Highway Act referred to herein-

above, the Federal Government assumes up to ninety percent

(90%) of the highway construction costs (23 U.S.C. 120) upon

approval by the Secretary of Commerce of the plans and specifi-

cations submitted by the various state highway departments (23

U.S.C. Section 109).

RESPONSE TO REQUEST FOR ADMISSION NO. 5:

Without waiving the objection to this request previously set

forth in its Response’ to Request for Admission No. 3 and, again,

sciely for the purpose of moving this case along and avoiding

a dispute over inconsequential matters, Sully-Miller admits that

the matter set forth in’ this request: is true.

REQUEST FOR ADMISSION NO. 6:

To qualify for contributions by the Federal Government the

state must conform to standards set forth in the statute, such as

vehicle weight and, width limitations (23 U.S.C., Section 127),

control of outdoor advertising (23 U.S.C., Section 131), creation

of a highway safety program (23 U.S.C., Section 135), control

of junk yards (23 U.S.C., Section 136).

_

RESPONSE TO REQUEST FOR ADMISSION NO. 6:

Without waiving the objection to this request previously set

forth in its Response to. Request for Admission No. 3 and, again,

solely for the purpose of moving this case along and avoiding

;

of

ee eee ee FESR IE OLE ig 5 PN CRE APONTE

94 Appendix

a dispute over inconsequential matters, Sully-Miller admits that

the matter set forth in this request is true.

REQUEST FOR ADMISSION NO. 7:

That each project is subject to the inspection and approval of

the Secretary of Transportation and was formerly under the con-

trol of the Secretary of Commerce. .

RESPONSE TO REQUEST FOR ADMISSION NO. 7:

Without waiving the objection to this cequest previously set

forth in its Response to Request for Admission No. 3 and, again,

solely for the purpose of moving this case along and avoiding a

dispute over inconsequential matters, Sully-Miller admits that the

matter set forth in this request is true.

REQUEST FOR ADMISSION NO. 8:

That all wages paid for laborers and mechanics employed by

_ contractors or subcontractors on roads funded by the Federal Aid

Highway Act is controlled by the Davis-Bacon Act (40 U.S.C.,

Section 276A) (23 US.C., Section 113).

RESPONSE TO REQUEST FOR ADMISSION NO. 8:

Without waiving the objection to this request previously set

forth in its.Response to Request for Admission. No. 3 and, again,*

solely for the purpose of moving this case along and avoiding a

dispute over inconsequential matters, Sully-Miller admits that the

matter set forth in this request is true.

REQUEST FOR ADMISSION NO. 9:

That small business enterprises are to be assisted by the Secretary

insofar as feasible in obtaining contracts in order to encourage full

and free competition under the Federal Aid Highway Act (23

US.C., Section 304).

RESPONSE TO REQUEST FOR ADMISSION NO. 9:

Without waiving the objection to this request previously set

forth in its Response to Request for Admission No. 3 and, again,

oe Se Ta eee . Ie Ss ene

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CREME SATII TEN ST MERIT I DOT ETE NS Rb AEA NE GRO TE OM OM aoe ee Te ER a

SRF Beate Gach Sit

PETS AER Nee ee See ed CEE ERT ee ET EIS,

Appendix 95

solely for the purpose of moving this-case along and avoiding a

dispute over inconsequential matters, Sully-Miller admits that the

matter set forth in this request is true.

REQUEST FOR ADMISSION NO. 10:

That any state declaring to avail itself of the provisions of the

Federal Aid to Highway Act, (Title 23, U.S.C. 101 et seq.) shall

have a highway department which shall have adequate powers and

be suitably equipped and organized to discharge to the satisfaction

of the Secretary the duties required by the Act (23 U.S.C., Section

302).

RESPONSE TO REQUEST FOR ADMISSION NO. 10:

Without waiving the objection to this request previously set

forth in its Response to Request for Admission No. 3 and, again,

solely for the purpose of moving this case along and avoiding a

dispute over inconsequential matters, Sully-Miller admits that the

matter set forth in this request is true.

REQUEST FOR ADMISSION NO. 11:

That the State of California has qualified to receive and does

receive funds from the Federal Government pursuant to Title 23

US.C. Section 101 et seq., and assents specifically to the provisions

of Title 23 of the United States Code relative to Federal aid and

other cooperative highway work (Section 820, Streets and High-

ways Code of the State of California).

RESPONSE TO REQUEST FOR ADMISSION NO. 11:

Without waiving the objection to this request previously set

forth in its Response to Request for Admission No. 3 and, again,

solely for the purpose of moving this case along and avoiding a

dispute over inconsequential matters, Sully-Miller admits that the

matter set forth in this request is true.

REQUEST FOR ADMISSION NO. 12:

That the State of California has apportioned ninety-eight and

one-half percent (981/2%) of the money received by it under the

2

if AREAL RGA EIT IRR RISE 6

one ss

ai eonrthge,

RENT LL CREOLE LALO LE REM

RES GMB IAT LILO LOUS, AH TENS WO

96. Appendix

Federal Highway Act of 1950 for the improvement of county high-

ways (Section 201, Streets and nuigerngs Code of the State of

California).

RESPONSE TO REQUEST FOR ADMISSION NO. 12:

Without waiving the objection to this request previously set

forth in its Response to Request for Admission No. 3 and, again,

solely for the purpose of moving this case along and avoiding a

dispute over inconsequential matters, Sully-Miller -admits that the,

matter set forth in this request is true.

REQUEST FOR ADMISSION NO. 13:

That the plaintiff Copp, in order to perform work on county

roads-funded by the United States Government under the Federal

Highway Aid Act (23 U.S.C. Section 101 et seq.) is required to

comply with all the provisions of the executed order No. 11246,

dated September 24, 1965.

RESPONSE TO REQUEST FOR ADMISSION NO. 13:

Without waiving the objection to this request previously set

forth in its Response to Request for Admission No. 3 and, again,

solely for the purpose of maqving this case along and avoiding a

dispute over inconsequential matters, Sully-Miller admits that the

matter set forth in this request is true.

REQUEST FOR/ADMISSION NO. 14:

That the defendant Sully-Miller, in order to perform work on

the county roads funded by the United States Government under

the Federal Highway Aid Act (23 U.S.C., Section 101 et seq.),

is required to comply with all the provisions of the executed order

No. 11246, dated September 24, 1965.

RESPONSE TO REQUEST FOR ADMISSION NO. 14:

Without waiving the objection to this request previously set

forth in its Response to Request for Admission No. 3 and, agair

solely for the purpose of moving this case along and avoiding a

ee SI ER OT ys oe Oe AA EG Nn ee ee EE oe OE oe Le

ia LARPs LEN ae

>

Appendix 97

dispute over inconsequential matters, Sully-Miller admits that the

matter set forth in this request is true.

REQUEST FOR ADMISSION NO. 15:

That the defendant Industrial, in order to perform work on

county roads funded by the United States Government under the

Federal Highway Aid Act (23 U.S.C., Section 101 et seq.), is

required to comply with all the provisions of the Executive Order

No. 11246, dated September 24, 1965.

RESPONSE TO REQUEST FOR ADMISSION NO. 15:

- Without waiving the objection to this request previously set

forth in its Response to Request for Admission No. 3 and, again,

solely for the purpose of moving this case along and avoiding a

dispute over inconsequential matters, Sully-Miller admits that the

matter set forth in this request is true.

REQUEST FOR ADMISSION NO. 16:

Attached hereto and made a part hereof are a group of docu-

ments labeled Exhibit “A”, 1 through 11 respectively. Does Sully-

Miller admit the documents so identified as “A” 1 through 11

are true and correct photostatic documents submitted by Sully-

Miller on or about the date, February 2, 1970, reflecting the com-

pliance by Sully-Miller to Executive Order 11246.

RESPONSE TO REQUEST FOR ADMISSION NO. 16:

Without waiving the objection to this request previously set

forth in its Response to Request for Admission No. 3 and, again,

solely for the purpose of moving this case along and avoiding a

dispute over inconsequential matters, Sully-Miller admits that the

matter set forth in this request is true.

REQUEST FOR ADMISSION NO. 17: =

That the defendant Gulf owns all the outstanding stock of the

defendant Industrial.

RESPONSE TO REQUEST FOR ADMISSION NO. 17:

Admitted.

PEED ALAN EMITS EOS

”

q

98 . Appendix

_ REQUEST FOR ADMISSION NO. 18:

That Union Oil owns all the stock of the defendant Sully-Miller.

RESPONSE TO REQUEST FOR ADMISSION NO. 18:

Admitted.

REQUEST FOR ADMISSION NO. 19:

That the defendant Union is engaged in interstaté commerce.

RESPONSE TO REQUEST FOR ADMISSION NO. i9:

Sully-Miller admits that, in some of its operations, defendant

Union is engaged in interstate commerce, denies that, in other

of its operations, defendant Union is so engaged, and specifically

denies that defendant Union is or was engaged in interstate com-

merce when defendant Union sells or sold, to customers located

in California, liquid asphalt refined in California.

REQUEST FOR ADMISSION NO. 20:

That the defendant Gulf is engaged in interstate-commerce. .

RESPONSE TO REQUEST FOR ADMISSION NO. 20:

Sully-Miller admits that, in some of its operations, defendant

Gulf is engaged in interstate commerce, denies that, in other of

its operations, defendant Gulf is so engaged, and specifically denies

that defendant Gulf is or was engaged in interstate commerce

when defendant Gulf sells or sold, to customers located in Cali-

fornia, liquid asphalt refined in California.

REQUEST FOR ADMISION NO. 21:

That the defendant Edgington is engaged in interstate com-

merce.

RESPONSE TO REQUEST FOR ADMISSION NO. 21:

‘Sully-Miller has made reasonable inquiry, but the information :

known to it is insufficient to enable it to admit or deny the matter

stated in this request. Sully-Miller is therefore without knowledge

or information sufficient to permit it to truthfully admit or deny

the matter stated.

STE obeys Duns aoe

PRIN gee SS

rs

RIS RA TREE Rr ae

eR PE RE: LEER AG BELAE ARM

Appendix 99

REQUEST FOR ADMISSION NO. 22:

That the defendant Edgington ships some of the hot asphalt

oil produced by it to other states of the United States, and sells hot

asphalt oil to custoiners located in other states.

RESPONSE TO REQUEST FOR ADMISSION NO. 22:

Suity-Miller admits that defendant Edgington sells hot asphalt

oil to customers located in states other than California and has

made a reasonable inquiry as to the remaining matter set forth in

this request, but the information known to Sully-Miller is in-

sufficient to permit it to admit or deny the remaining matter

stated. Sully-Miller is therefore without knowledge or informa-

tion sufficient to permit it to truthfully admit or deny that defendant

Edgington ships some of the hot asphalt oil produced by it to

other states of the United States.

REQUEST FOR ADMISSION NO. 23:

That the defendant Union ships some of the hot asphalt oil

produced by it to other states of the United States, and sells hot ,

asphalt oil to customers located in other states.

RESPONSE TO REQUEST FOR ADMISSION NO. 23:

Admitted. ’

REQUEST FOR ADMISSION NO. 24:

That the defendant Gulf ships some of the hot asphalt oil /

produced by it to other states of the United States, and sells hot

asphalt oil to customers located in other states.

100

Appendix

RESPONSE TO REQUEST FOR ADMISSION NO. 24:

Denied.

Dated: February 18, 1972.

-

Douglas C. Gregg

E. A. McFadden

Moses Lasky .

Richard Haas

George A. Cumming, Jr.

Brobeck, Phleger & Harrison

« ;

By /s/ GeEorGE A. CUMMING, JR.

‘George A. Cumming, Jr.

Attorneys for Defendant Sully-Miller

Contracting Company

[Certificate of Service omitted in printing}.

Appendix 101

United States District Court for the Northern District of California

[Title of case omitted in printing}

[Filed February 23, 1972}

RESPONSE OF DEFENDANT GULF OIL CORPORATION -

TO PLAINTIFFS’ INTERROGATORIES

Gulf Oil Corporation (hereinafter referred to as ‘‘Gulf’’) re-

sponds to Interrogatories Propounded by Plaintiff Copp with Ref-

erence to the Issue of Interstate Commerce, dated January 19,

#972, as follows:

* * *

INTERROGATORY NO. 10.

With reference to the source of the crude oil which your com-

pany processes, state for each year from 1958 to date the source

of said crude oil, and in said response set forth specifically:

A. The total amount of crude oil processed by your company |

within the State of California for each year in question. Set forth

the number in terms of either gallons or barrels or the standard

measufement which you may use at your refinery. .

B. Set forth in the measurement used by you the amount of

oil refined for each year which is obtained by your company, the

origin of which was in the confines of the State of California. :

C. Set forth in the measurement used by you the amount of

oil refined for each year which is obtained by your company, the

origin of which was outside of the confines of the State of

California.

D. . Set forth in the measurement used by you the amount of

oil refined foryeach year which is obtained by your company, the

origin of which was outside the confines of the continental United

States.

fos a re ea

NGD SEMA TAGE HIE PY ‘

Deny

oe

i

x

|

SAO Fc PDX PERT

hts bila Ap atead 2 3 eee OF ge ee tat

hed id sires

102 Appendix

RESPONSE TO INTERROGATORY NO. 10:

Gulf objects to this interrogatory on the grounds that the infor-

mation sought is totally irrelevant to the issue raised as to whether

or not the alleged acts of this defendant occurred in or had a sub-

stantial adverse effect upon interstate commerce. Without waiving

its objections, however, Gulf has answered this interrogatory

insofar as its available records permit for the years 1955 through

1970 in “Exhibit A,” attached hereto.

INTERROGATORY NO. 11.

‘ State the location of each refinery owned by your company

within the State of California, identifying the period of time

said refinery has been in existence from the years 1958 to date.

A. With reference to the refineries identified herein, set forth

and state the capacity of each refinery in terms of the total crude

oil processed by said refinery for each year, from 1958 to date.

B. State for each refinery the total amount of petroleum prod-

ucts produced by each refinery from 1958 to date, including gaso-

line, kerosene, motor oil, and liquid asphalt production. (The list

requested is by way of example only, and if any other petroleum

products are produced, you will set forth each and every other

petroleum product so produced including quantity thereof.)

RESPONSE TO INTERROGATORY NO. 11:

At all times since October 1, 1965, Gulf has owned and operated

one refinery in the State of California which is located in Santa

Fe Springs, California. Gulf objects to this interrogatory to the

extent that it seeks information pertaining to the production at

said refinery of any product other than asphalt on the grounds

that said interrogatory to that extent is irrelevant to the subject

matter of this litigation and is not likely,to lead to the discovery

of relevant evidence. The production of liquid asphalt at Gulf's

a]

: Appendix 103°

Santa Fe Springs Refinery for the years 1965 through 1970, is

set forth in “Exhibit A.”

INTERROGATORY NO. 12.

For each of the petroleum products so identified in response

to Interrogatory No. 11 hereinabove, state for edch year in ques-

tion the total volume of said product sold and distributed within

the confines of the State of Calif

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Appendix — Gulf Oil Corp. v. Copp Paving Co. · 419 U.S. 186 | Frix