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
are Ee oo |
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
ee eee et I
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
SERN ED w PAE RP a gee tee te iciiatdliaiailaiae
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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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10 Appendix
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.
Po
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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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14 Appendix
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.
EE REY ET EEL PEE LOE IMI OLLI ISLS IEEE GE TE PELE BIDDER Hoe nce WAP Tg oo reine ery
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.
&
&
:
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
\
»
%
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]
ERITREA TI te ER SEER A
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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
Pars ene kN A
at
Pal
S
ee
§
=
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;
4
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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
ie
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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
be
®,
¥
9
a
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
pyre en
a esc bet o-Z Set ARTI OAD LAL IE Dias wha Poe fetal BOTEE
ee
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
8
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LA SSS GRR CRE OA RETEST; RELA FEE CS RIE EES :
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.
by
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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
ee
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
— rep renpemmmrpn span yie-enssn
As cae ceeitebemtioneet. SL)
a
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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ay
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
“ i
\
erate LEE RIAN NBN UML P AE IB WINTRY ED ae ©
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. -
BE RAEI AERIS OTR ERLISTE SHINEE LA TOOT EE IL ROTEL YE PRS Te EE EEN BESTE LS TEIN
-
-*
: a
~\
\
*
3
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a
2
+ yeaa © =
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).
. ‘ . —
GEERT SERENE POT LET ER LOD IE IIIT ELL SET SN
/
es wall
‘
“
RTM ORGS So ee ener ghee Remo eee sm Te
vee f ? . ve Fen ae Shetek RAIA Py
MELE MSE
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
sk ee + i i ie ea eee MATT? aia
gs
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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