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Justia › US Law › US Case Law › US Supreme Court › Volume 391 › First Nat'l Bank v. Cities Service Co.
First National Bank of Arizona v. Cities Service Co.
Iranian oil between June, 1952, and January, 1955, and documents from and oral examination of Carter, a former Cities employee, who acted as an intermediary between Cities and petitioner. His counsel's supporting affidavit related facts designed to show that Cities' failure to follow through on its original interest in dealing with petitioner was substantial evidence of Cities' participation in the boycott allegedly organized by the other defendants. Cities again renewed its summary judgment motion and, following arguments on both motions, the trial judge granted summary judgment on September 8, 1965, holding that petitioner had failed to meet amended Rule 56(e)'s requirement that a party opposing a properly supported summary judgment motion show by affidavit or otherwise "specific facts showing that there is a genuine issue for trial." The court ruled as to petitioner's cross-motion for additional discovery under Rule 56(f) that his total failure to produce evidence tending to show Cities' part in a conspiracy demonstrated that additional discovery would be a fishing expedition and constitute harassment. The Court of Appeals affirmed.
1. The trial judge's orders prior to the rendition of summary judgment were proper, and did not place unfair limits on petitioner's access to relevant information. Pp. 391 U. S. 270-274; 391 U. S. 290-299.
(a) Petitioner himself, from the beginning, took the position that the two payoffs (the Kuwait contract and participation in the Consortium) were the only links between Cities and the conspiracy. By Hill's affidavit and supporting documents, Cities apparently felt it could disprove these charges. Pp. 391 U. S. 270-271.
(b) The trial judge did not abuse his discretion in ordering petitioner to limit initial discovery to Hill, rather than Jones, Cities' president, with whom petitioner had primarily dealt; since Hill had been the ranking Cities official in charge of the Kuwait and Consortium transactions, it is unrealistic to suggest that Jones could have involved Cities in such a large conspiracy without knowledge on the part of its other major executives, and, in any case, the issue became moot after Jones' death, which occurred before petitioner would have been able to depose him had the trial judge permitted him to do so. Pp. 391 U. S. 272; 391 U. S. 294-295.
(c) After Hill's deposition and the accompanying documents in its support, petitioner no longer seriously contended that the evidence relating to Kuwait and Consortium was sufficient by itself to raise a genuine issue of material fact. P. 391 U. S. 272.
and petitioner was not prejudiced by not being allowed to depose other executives at the time he was allowed to depose Hill because it was not until he had deposed Hill that he began to suggest other possible motivations for Cities to conspire. Pp. 391 U. S. 272-274.
(e) As petitioner himself acknowledges, Cities was in a totally different position from the other defendants. The discovery given the other defendants did not unduly favor Cities, whose own deposition testimony of petitioner totaled only 3 1/2 days, since petitioner benefited as much vis a vis Cities from the depositions taken by the other defendants as Cities did. Though the case has been pending in the lower courts 11 years, during which time petitioner has not received a formal answer from any defendant nor been permitted general discovery, Cities has been the only party consistently desirous of expediting the proceedings, and petitioner has always acquiesced in the delays. Pp. 391 U. S. 290-292.
(f) Even assuming the disputed claim that petitioner was kept from obtaining general discovery of the other defendants during the period he sought to build a case against Cities, petitioner had discovery against the one party he is now opposing, and that party was a "tangential defendant," whose link to the other defendants was shown to be factually incorrect. Under those circumstances, it was petitioner's burden, which he did not meet, of showing a significant likelihood that discovery of the other defendants would be fruitful. Pp. 391 U. S. 292-294.
(g) Petitioner has not shown any prejudice by not having been allowed to depose Carter, a former employee of Cities originally listed as one of petitioner's associates, concerning Jones' alleged interference with Carter's efforts as an intermediary between Cities and petitioner to sell the United States Government Iranian gasoline for military use, and even if Carter would not voluntarily have furnished petitioner information, petitioner has not explained why he did not try to secure Carter's testimony in 1961 (when the trial judge described petitioner's case as "extremely weak") or 1963, rather than waiting till 1964. Pp. 391 U. S. 295-297.
(h) The time period to which petitioner's documentary requests pertain is one largely relating to activities outside the period covered by this phase of the lawsuit, and, in view of petitioner's failure (despite substantial discovery) to obtain significant evidence of conspiracy for the period during which it was alleged to have directly injured him, the trial court was warranted in denying the additional documentary discovery petitioner requested. Pp. 391 U. S. 297-298.
2. On the facts shown, summary judgment was correctly awarded to respondent, since petitioner was unable to show sufficient material facts to raise genuine issues for trial of his case against Cities. Pp. 391 U. S. 274-288.
(a) After Iran had nationalized Anglo-Iranian's properties, Anglo-Iranian, contending that the nationalization violated international law, announced that it would protect its rights in any country and would sue any purchaser of Iranian oil. Petitioner's evidence showed that the other defendants and other American oil companies, fearful that, if Iranian nationalization of Anglo-Iranian's property succeeded, other countries would follow suit, refused to deal with any company handling Iranian oil. P. 391 U. S. 278.
(b) When that compelling explanation for Cities' failure to purchase Iranian oil is coupled with Cities' showing that the Kuwait deal antedated nationalization, that Cities opposed the Consortium, and ultimately refused its minimal share therein, petitioner's suggestion that Cities was "bought off" becomes insupportable. Pp. 391 U. S. 278-279.
(c) Petitioner's consistent argument that Cities' interests in this situation were opposed to those of the other defendants prompts him to insist that Cities' motive for conspiring is not controlling, but for petitioner to say that Cities' failure to deal with him showed Cities' participation in the conspiracy is to rely on motive. P. 391 U. S. 279.
(d) A report prepared for transmission to Iranian premier Mossadegh in October, 1952, after Jones returned from Iran and Watson, Cities' senior vice-president, announced to petitioner that Cities was no longer interested in Iranian oil, is used by petitioner in two opposing ways, and does not further petitioner's theory of conspiracy. Pp. 391 U. S. 281-282.
(e) A letter sent by Jones to the incoming Secretary of State and Attorney General in January, 1953, that the only solution was for Iran to reach an accommodation with the British, and a supporting legal memorandum that Iran, under international law, had the right to nationalize Anglo-Iranian's properties, likewise had no probative value for petitioner's case. Pp. 391 U. S. 282-283.
(f) Petitioner's failure to sell oil to Richfield, of which Cities was a major, though not a controlling, stockholder, adds nothing to the case against Cities. Pp. 391 U. S. 283-284.
United States Air Force occurred at a time when petitioner conceded that Cities was not yet a member of the conspiracy, and, in any case, seems to have constituted no more tan a desire by Jones not to be used in someone else's financial dealings. P. 391 U. S. 284.
(h) In view of the business relationship between petitioner, Cities, and the other defendants, it is much more plausible to believe that Cities' interests coincided, rather than conflicted, with those of petitioner. Poller v. Columbia Broadcasting System, 368 U. S. 464 (1962), distinguished. Pp. 391 U. S. 284-286.
(i) Petitioner's position that Cities' failure to deal with him (the one fact that petitioner has produced) is sufficiently probative of conspiracy to withstand summary judgment cannot be supported where no interest of Cities was shown to parallel the interests of the other defendants. Interstate Circuit, Inc. v. United States, 306 U. S. 208 (1939), and Theatre Enterprises, Inc. v. Paramount Distributing Corp., 346 U. S. 537 (1954), distinguished. Pp. 391 U. S. 286-288.
3. The lower courts correctly held that amended Fed.Rule Civ.Proc. 56(e) placed upon petitioner the burden of producing evidence of conspiracy after Cities conclusively showed that the facts upon which petitioner relied to support his conspiracy allegation were not susceptible of the interpretation he sought to give them. Pp. 391 U. S. 288-290.
judgment as a matter of law. 38 F.R.D. 170 (D.C.S.D.N.Y.1965). The Court of Appeals for the Second Circuit affirmed. 361 F.2d 671 (1966). This Court granted certiorari, 385 U.S. 1024 (1967), to determine whether the decisions below were in conformity with Poller v. Columbia Broadcasting System, Inc., 368 U. S. 464 (1962). We conclude that Poller and other decisions of this Court were correctly applied and, accordingly, we affirm.
Because the question whether summary judgment is appropriate in any case is one to be decided upon the particular facts of that case, we shall set forth the background of this litigation in some detail (Part I) before turning to the specific issues petitioner raises (Parts II-V).
of the nationalization of the properties of the Anglo-Iranian Oil Co by the Government of Iran in May, 1951. The defendants other than Cities Service, it was asserted, agreed at that time to boycott Iranian oil in all world markets until Iran should agree to return Anglo-Iranian's property and concession rights. While the dispute between Anglo-Iranian and the Iranian Government under Premier Mossadegh was still continuing, Waldron and some of his associates allegedly succeeded in obtaining a contract to purchase 15,000,000 metric tons of crude oil or refined products from the National Iranian Oil Co. (NIOC), the company formed to take over Anglo-Iranian's nationalized properties, over a five-year period at a rate substantially less than the then current posted price for Persian Gulf oil. NIOC, in return, agreed not to deal with anybody other than Waldron in the United States market.
carried out by all the defendants completely frustrated his ability to sell oil under his contract, and accordingly sought treble damages from them in the amount of $109,000,000.
into between petitioner and the defendants, the taking of these depositions had been postponed up to the date of petitioner's motion to terminate the taking of his own deposition. In that motion, petitioner also moved to vacate the notices to take depositions of his associates.
In response to petitioner's claims that the protracted examination of him by the defendants constituted harassment and an undue burden on him, the defendants pointed out that only one of their number had as yet examined Waldron, and that the length of time over which the examination had proceeded had been with his complete acquiescence. As for petitioner's financial hardship contention, the defendants suggested that, in view of the damages sought by petitioner, it was not inappropriate that he be required to spend considerable time clarifying his claims before trial. Judge Herlands denied the motion on February 11, 1958, after argument; he ordered, however, that further examination of the petitioner by the seven defendants be limited to 52 working days, of which 10 were allotted to respondent Cities Service. In addition 174 1/2 days were scheduled for the examination of Waldron's five associates, of which 31 went to Cities Service. The examinations were to be consecutive, and were set to commence on March 10, 1958, unless the parties agreed otherwise. The defendants were authorized to postpone the filing of their answers until 30 days after the completion of the depositions, and petitioner was stayed from undertaking any discovery proceedings of his own during that period.
associates were deposed between January, 1960, and April, 1962, for 58 working days, of which 3 1/2 were used by counsel for Cities Service. Waldron was then examined for one additional day in 1962.
Thus, between September, 1956, and May, 1962, a period of over 5 1/2 years, Waldron and his associates were deposed for a total of 153 days, of which only seven days were attributable to Cities Service. The various stipulations that resulted in prolonging the period required for the taking of these depositions were all entered into either at the request, or with the agreement, of petitioner.
had been reached on the proposed deal prior to the time petitioner first approached Cities. [Footnote 5] As for the Consortium, the documents showed that Cities had only commenced negotiations with the defendants to obtain participation therein some two years after it was alleged to have joined the conspiracy, and that the share it was eventually offered, over its strenuous objections, was so small that it transferred the share to the Richfield Oil Co., in which it held a minority stock interest.
In reply to Cities' motion, petitioner's counsel reiterated his contention that the course of dealings between Waldron and his associates, on the one hand, and various of Cities' executive personnel, especially its president, W. Alton Jones, on the other, raised an inference of conspiracy because the most probable conclusion to be drawn from Cities' decision to pass up the assertedly extremely beneficial deal proposed by petitioner, notwithstanding its need for additional supplies of imported oil, was that, in some manner, Cities either had been "reached" or had used its negotiations with Waldron as a means of forcing its way into the alleged Middle East oil cartel. Petitioner also suggested that Cities might well have made some sort of informal agreement with the other defendants concerning the Consortium that was not revealed by the documents, and that Cities might have expected, at the time such an agreement was made, a more profitable share therein than it was eventually offered.
purposes, handed down a memorandum decision on March 30, 1961, postponing determination of Cities' motion for summary judgment. In his opinion, Judge Herlands stated that it was "doubtful" whether any issue as to any material fact existed, and that Cities had been named a defendant on mere "suspicion." Because he judged petitioner's claim against Cities "so insubstantial," he ruled that petitioner would not be given "carte blanche authority to conduct untrammeled pretrial proceedings," but that such proceedings would be "closely regulated." Subsequently, Judge Herlands entered an order providing that petitioner was to be allowed to take the deposition of Hill, the Cities' executive who had been in charge of negotiating the Kuwait deal with Gulf and who had also carried out Cities' attempts to secure a participation in the Consortium.
At the hearing in 1961 on the proposed order to implement the court's decision, counsel for Waldron asked to depose Cities' president Jones first. Contrary to what appears to be the position taken now, petitioner acknowledged and accepted Judge Herlands' order that his discovery of Cities was to be carried out pursuant to Rule 56(f), Fed.Rules Civ.Proc., which provides for comparatively limited discovery for the purpose of showing facts sufficient to withstand a summary judgment motion, rather than Rule 26, which provides for broad pretrial discovery. Petitioner's sole objection to the proposed order was that Jones should be deposed, rather than Hill.
for entering the alleged conspiracy was basically irrelevant. He argued that the evidence showed that Cities had embarked on a course of dealing with Waldron and then inexplicably had broken it off, and that this sequence of events was, in itself, sufficient evidence of conspiracy to withstand summary judgment and to entitle petitioner to sufficient discovery to ascertain the reason for the breakoff.
This argument was rejected, and the trial judge clearly stated that, to withstand summary judgment, petitioner would have to produce some factual evidence of conspiracy beyond Cities' mere failure to carry through on a deal for Iranian oil. The taking of Hill's deposition was scheduled, without objection by petitioner, to commence upon the completion of the depositions of petitioner's associates.
Between September 10, 1962, and February 27, 1963, pursuant to stipulations between the parties, petitioner deposed Mr. Hill for a total of six working days. Then, at the beginning of May, petitioner moved for additional discovery. In response to this motion, respondent Cities Service renewed its summary judgment motion in addition to opposing further discovery by petitioner. At oral argument, on May 27, 1963, Judge Herlands reiterated his opinion that, thus far, Waldron was still unable to point to any facts tending to show that Cities had participated in the alleged conspiracy. Indeed, the deposition testimony of Hill, plus various additional documentary evidence supplied in connection therewith, had further disproved the Kuwait and Consortium payoff theories. This evidence showed that Cities had actively resisted formation of the Consortium by the other defendants, even to the extent of making approaches to the United States Government in the hope of securing its intervention in the situation.
time and in a manner not known to the plaintiff; and, second, that the other defendants and various of their coconspirators "secretly threatened, induced and conspired with defendant Cities Service to break off all dealings with plaintiff."
and Cities' dealings in connection with Iranian oil, (c) conversations and communications between Cities and any other defendant between June 11, 1953, and September 30, 1953, pertaining to negotiations between Waldron and the Richfield Oil Corp. concerning the purchase by Richfield of Iranian oil, and (d) conversations and communications between any deponent for Cities and any other Cities' employee involving the subject matter described in the preceding categories. The depositions of the three Cities' executives were completed during the months of July and August, 1964, and, in connection therewith, more than 140 documents were produced.
Petitioner states that three questions are presented by this case: first, whether he was improperly limited in the discovery permitted him prior to the rendering of summary judgment (Parts II, 391 U. S. infra); second, whether sufficient material facts to raise genuine issues for trial were shown ( 391 U. S. infra), and third, whether the lower courts held, erroneously, that amended Rule 56(e), Fed.Rules Civ.Proc., places the burden of showing that there is a genuine issue of material fact for trial on the party opposing a motion for summary judgment ( 391 U. S. infra).
him adequately to oppose the summary judgment motion, we shall discuss in 391 U. S.
Petitioner's initial complaint, as set out more fully supra at 391 U. S. 259-261, specifically alleged that Cities had adhered to the conspiracy by refusing to deal with petitioner after being bought off by the Kuwait contract and an opportunity to participate in the Consortium. Similarly, in his deposition, Waldron reiterated his belief that the only links between Cities and the conspiracy were those two payoffs. Thus, by petitioner's own doing, respondent Cities Service was from the beginning of the litigation placed in a vastly different position from the other alleged coconspirators. Cities, realizing this, apparently felt that, if it could show that it had, in fact, not received any payoff or bribe from the other defendants, petitioner would abandon his contention that it had joined the alleged conspiracy. Accordingly, immediately after it had taken Waldron's deposition, Cities made its motion for summary judgment accompanied by Hill's affidavit and the supporting documents described supra at 391 U. S. 263-264. When Judge Herlands declined to grant Cities' motion at that time, he permitted petitioner to examine Cities about those specific facts that had theretofore been the only ones alleged as evidence of conspiracy on the part of Cities other than its failure to make a deal with petitioner for Iranian oil. Petitioner appears to argue that it was erroneous for the trial court to limit his discovery initially to Hill, rather than Jones, the person with whom he primarily dealt. However, since petitioner was the party who had injected Kuwait and Consortium into the case, and since Hill had been the ranking Cities official in charge of both transactions, it is difficult to conclude that the trial judge abused his discretion in ordering petitioner to begin by examining Hill.
Even assuming arguendo that it was error for petitioner to have been required to begin his discovery with Hill, rather than Jones, the issue is moot for purposes of appellate review because Jones' accidental death occurred prior to the time petitioner would have been able to commence deposing him had he been permitted by Judge Herlands to do so. There is no reason to believe that petitioner would have made any greater efforts to see that the examination of his associates, Bentley, Zoes, and Brown, was carried out in less than the 13 months that were actually taken had he been scheduled to depose Jones at the end of that time, rather than Hill. Obviously it was Jones' death, rather than any action taken by Judge Herlands, that prevented his being deposed at some later date.
Although petitioner had begun to deemphasize the significance of Kuwait and the Consortium to his claim of conspiracy by Cities at the first argument on Cities' motion for summary judgment, it was not until after the additional information described above was obtained through Hill's deposition, and the supporting documents accompanying it, that petitioner began to stress the contention that Cities had undergone a dramatic shift in its attitude towards him in September, 1952, immediately after Jones had returned from a trip to Iran arranged for him by Waldron. While it is probably to overstate the case to say, as does respondent, that petitioner abandoned his Kuwait and Consortium claims at this time, it is fair to say that petitioner no longer seriously contended that the evidence relating to them was sufficient, in itself, to raise a genuine issue of material fact.
This order had the effect of permitting Waldron to examine every surviving Cities official with whom he had dealt to any substantial degree in his attempts to arrange a sale of Iranian oil. He was permitted to examine them, and have production of all documents in connection therewith, concerning all the events that he had specified in his original complaint or in the two previous oral arguments on Cities' motion for summary judgment as being evidence of Cities' participation in the alleged conspiracy. Certainly the scope of this order, viewed as of the time it was made, does not seem open to any serious challenge as unduly restrictive, and petitioner did not make any such argument at the time the order was proposed. It was only when petitioner moved for additional discovery in the fall of 1964 that he began seriously to complain about the allegedly limited scope of the prior discovery order. Accordingly, we shall postpone more detailed discussion of this point to 391 U. S. infra.
thus have been reasonably foreseen. The fallacy in this argument is that it was only after Hill testified that petitioner changed the focus of his argument before the trial judge to minimize the significance of Kuwait and Consortium and to suggest other possible motivations for Cities to conspire. Certainly Judge Herlands was not required to anticipate that petitioner would change the entire factual emphasis of his case so that individuals who did not at the time appear to be particularly vital to the litigation would subsequently become so. Moreover, petitioner did not even ask to depose any Cities official who subsequently died, other than Jones, at the time he was permitted to examine Hill. Therefore, petitioner's claim of prejudicial error here must fail also.
In his affidavit in support of Waldron's motion for additional discovery, petitioner's attorney detailed the facts produced to date that assertedly showed Cities' participation in the conspiracy, in order both to support his contention that additional discovery was needed and to demonstrate that summary judgment in favor of Cities should not be granted. We shall first discuss the propriety of Judge Herlands' award of summary judgment before dealing further (in 391 U. S.
attempts to resell the Iranian oil to which he allegedly had access under his contract. Cities had a need to import substantial amounts of crude oil for its domestic operations in the United States, this need amounting to some 100,000 barrels per day. Cities had theretofore been unable to obtain an independent oil supply in the Middle East despite its long-existing desire to do so. Through petitioner, Cities had two assertedly attractive possibilities of fulfilling its crude oil needs. The first consisted of short-term purchases of Iranian oil at prices substantially below the going rates for Mideast oil via petitioner's contract with NIOC. The second, in which Cities was apparently more interested and on which tentative agreement with petitioner was allegedly reached, was for Cities to enter into a long-term arrangement to take over the operation of the entire Iranian oil industry (or a substantial portion thereof) in place of Anglo-Iranian, and to compensate Waldron for what would amount to a transfer of his contract rights.
his stay in Iran, Jones also made a side trip to Kuwait to visit the Kuwait Oil Company, owned jointly by Anglo-Iranian and Gulf. On the return of the Cities party to the United States, Watson [Footnote 14] informed petitioner in October, 1952 that Cities did not propose to take any steps relative to obtaining Iranian oil. although another Cities executive subsequently indicated to him that Cities had not entirely abandoned its interest in his proposals. However, Cities had no further significant dealings with Waldron thereafter. Meanwhile on September 21, 1952, Carter, acting on petitioner's behalf, had sent a telegram to Secretary of the Interior Chapman offering to sell a cargo of Iranian-produced aviation gasoline to the United States Air Force. Carter stated that Jones had said that he would use his good offices to get the United States to purchase the gasoline. Instead, Jones cabled Watson instructions to tell Chapman that he was disassociating himself from Carter's efforts and that he questioned the wisdom of Carter's proposal. This Watson did.
Subsequently, in January, 1953, Jones wrote to the incoming Secretary of State and Attorney General informing them of his belief that the only solution to the Iranian oil problem would be some sort of agreement between Iran and Anglo-Iranian. He accompanied this missive with a legal memorandum which stated that, under international law, Iran appeared to have the right to nationalize the Anglo-Iranian oil properties, but he asserted that the memorandum had not been prepared as a step toward Cities' involving itself in the Iranian situation. Three weeks later, the final contract with Gulf for a 15-year supply of 21,000 barrels per day of Kuwait oil, plus an option for an additional 30,000 barrels per day, was signed by Cities and Gulf.
Petitioner argues that the inference that Cities was a participant in the alleged conspiracy to boycott him follows from the foregoing facts. Even viewed without reference to other facts of record, it is apparent that petitioner's main argument is that Cities' failure to follow through on its original substantial interest in dealing with him is substantial evidence of participation in the boycott allegedly organized by the other defendants. And undoubtedly, given no contrary evidence, a jury question might well be presented as to Cities' motives in not dealing with Waldron, cf. Poller v. Columbia Broadcasting System, Inc., 368 U. S. 464 (1962), notwithstanding that such a failure to deal conceivably might also have resulted from a whole variety of nonconspiratorial motives involving the exercise of business judgment as to the attractiveness of the opportunity offered by petitioner. However, as we next show. the record in this case contains an overwhelming amount of such contrary evidence of Cities' motives, much of it supplied by petitioner himself.
Immediately after the nationalization, Anglo-Iranian publicly announced both in the news media and throughout the oil industry its view that the nationalization of its properties and the abrogation of its concession rights amounted to an illegal act under international law, and stated its intention to "take all such action as may be necessary to protect its rights in any country," including the bringing of lawsuits against any purchaser of Iranian oil. In addition, the evidence introduced by petitioner tended to show that the other major oil company defendants in this suit, as a result of their fear that countries in which they held concessions would follow the Iranian lead should the nationalization of Anglo-Iranian's property be successful, also communicated to Cities and other domestic oil companies their intention to support Anglo-Iranian by refusing to deal with any company that handled Iranian oil. That such threats were both substantial and effective is demonstrated by the testimony of petitioner that numerous American oil companies, not made parties defendant in this action, refused to deal with him for precisely the reason that they were afraid of retaliation. In addition, petitioner testified that the other defendants had threatened to boycott any companies that leased tankers for use in transporting Iranian oil.
therein after the failure of its efforts to block the formation of the Consortium, the suggestion that Cities was in some manner bought off becomes insupportable. Petitioner attempts to escape the force of this showing by arguing that he is obligated not to demonstrate why Cities conspired, but only to show that Cities in fact conspired. However, this contention, though undoubtedly true in the abstract, has little relevance to Waldron's theory of how he has introduced evidence that Cities in fact conspired.
Petitioner himself consistently argues that Cities' interests in this entire situation were directly opposed to those of the other defendants. The others had large supplies of foreign oil; Cities did not. The others allegedly were members of an international cartel to control foreign oil; Cities was not. The others were interested in reestablishing the status quo prior to nationalization; Cities was not. It is doubtless due to the difficulty of suggesting a motive for Cities to conspire against him, coupled with Cities' demonstrated interest in his proposals for several months (to the extent that Cities even paid Waldron several thousand dollars to reimburse him for his time and expenses incurred in arranging Jones' trip to Iran), that prompts petitioner, understandably enough, to insist that motive is not controlling in his case. However, to suggest, as petitioner does, that Cities' participation in the conspiracy is shown by its failure to deal with him is itself to rely on motive.
above that for Cities to enter into any deal with Waldron for Iranian oil would have involved it in a variety of unpleasant consequences sufficient to deter it from making any such deal. [Footnote 16] Therefore, not only is the inference that Cities' failure to deal was the product of factors other than conspiracy at least equal to the inference that it was due to conspiracy, thus negating the probative force of the evidence showing such a failure, but the former inference is more probable.
"[d]evelopment of some method, possibly through agreement between United States and British Governments, [would have to be made] that would allow Iranian crude to move to U.S. markets without tie-ups, law suits and other similar harassments to the purchasers of the crude."
Petitioner also emphasizes the statement sent by Jones to the incoming Secretary of State and Attorney General that the only solution for Iran lay in some sort of accommodation with the British. Since this was also the position taken, in effect, by the other alleged conspirators, petitioner suggests that it too shows common purpose. However, once Jones had decided that Cities could not risk trying to break the boycott itself, it was merely a factual observation to state that Iran would not be able to restore the operation of its oil industry without some kind of agreement being made with the boycotters. The use of the phraseology that this was the only "honorable course" hardly changes the factual background of the letter.
Moreover, the letter was accompanied by a legal memorandum, stating that Iran had a right under international law to nationalize its oil industry, that ran directly counter to the consistent position taken by the other defendants in this case. Indeed, it went to the heart of their defense, since one of the arguments being made below is that the other defendants were merely acting to protect their property rights. See 231 F.Supp. at 87.
time the deal fell through, it is also possible that no agreement was reached because Waldron no longer had anything to offer. Therefore, the failure of petitioner to sell oil to Richfield adds nothing to his case against Cities.
competition with him, that he was driven out of business as a result of the competition with the other station, and that, subsequently, CBS terminated the operation of its station, thereby leaving the Milwaukee market without any UHF service at all. CBS, in turn, relied on evidence consisting largely of affidavits from, and depositions of, various of its executives asserting that the actions taken by it were the result not of conspiracy, but of its legitimate business decision to enter into competition in the UHF market in the Milwaukee area. The basic issue between the parties, therefore, concerned the motives of CBS in canceling its affiliation with the plaintiff Poller. This Court held that, where there was substantial factual evidence tending to show the existence of a conspiracy to eliminate a competitor, and where the crucial question was motive, summary judgment was prematurely granted against the plaintiff, notwithstanding the fact that there was also substantial evidence tending to show the nonexistence of conspiratorial behavior.
precisely this similarity of interest. As Waldron himself candidly stated in the course of his deposition, he would not have originally included Cities as a coconspirator had he not conceived the idea that the ultimate failure of Cities to deal with him was the result of some sort of payoff. Yet as described supra at 391 U. S. 263-264, 391 U. S. 267, Cities has introduced overwhelming evidence that no such payoff was ever made or promised to it in return for an agreement not to deal with Waldron, a showing which petitioner has in no way rebutted. Petitioner is thus forced to take the position that the one fact that he has produced, Cities' failure to make a deal with him for Iranian oil, is sufficiently probative of conspiracy to entitle him to resist summary judgment.
shown that each distributor knew that all the other distributors had been approached with the same proposal and that the imposition of the restrictions would be feasible only if adhered to by all distributors. Finally, it was shown that the identical action taken had the effect of creating a likelihood of increased profits for each distributor. This Court held that, on the foregoing facts, a tacit agreement to restrain competition between the distributors could properly be inferred.
Interstate Circuit differs from the case at hand in precisely the same way that Poller does, namely, in the inferences of motive that can reasonably be drawn from the facts. The reason that the absence of direct evidence of agreement in Interstate Circuit was not fatal is that the distributors all had the same motive to enter into a tacit agreement. Adherence to such an agreement would enable them to increase their royalties by forcing a rise in admission prices without the danger of competitors enlarging their share of the subsequent-run market by refusing to impose similar restrictions. That such a step would also aid the first-run exhibitors proposing it to restrain competition between themselves and subsequent-run exhibitors would not significantly diminish the anticompetitive benefits to be obtained by the distributors. Here, Waldron is unable to point to any benefits to be obtained by Cities from refusing to deal with him, and therefore the inference of conspiracy sought to be drawn from Cities' "parallel refusal to deal" [Footnote 18] does not logically follow.
U.S. at 346 U. S. 540, in the course of ruling that the parallel behavior there shown did raise a conspiracy issue for the jury, which permissibly resolved it in the defendants' favor on the basis of the other contrary evidence in the case. It did not purport to deal with a situation where the interests of the parties whose behavior was "consciously parallel" were substantially divergent and thus is inapplicable here. Thus, neither precedent nor logic supports petitioner's contention that the evidence to which he points is significantly probative of conspiracy and, therefore, we hold that, on the facts as shown summary judgment was correctly awarded to respondent.
"[w]hen a motion for summary judgment is made and supported . . . an adverse party may not rest upon the mere allegations or denials of his pleading, but his response . . . must set forth specific facts showing that there is a genuine issue for trial."
Petitioner contends that the lower courts misapplied Rule 56(e) in this case and erroneously placed the burden on him to show that there was a material issue of fact for trial, rather than first requiring respondent Cities Service, the movant, to demonstrate the absence of a "genuine issue as to any material fact" under Rule 56(c). However, it should be noted that the decisions below did not purport to discuss burden of proof at all. Therefore petitioner must demonstrate that, regardless of what was specifically held, the effect of the decisions below was to so shift the burden of proof.
is required is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial. The case at hand presents peculiar difficulties because the issue of fact crucial to petitioner's case is also an issue of law, namely the existence of a conspiracy. What Rule 56(e) does make clear is that a party cannot rest on the allegations contained in his complaint in opposition to a properly supported summary judgment motion made against him. [Footnote 19] Yet the analysis of the facts undertaken above demonstrates that, due to the absence of probative force of Cities' failure to deal with Waldron as being, in itself, evidence of conspiracy, petitioner's position is, in effect, that he is entitled to rest on the allegations of conspiracy contained in his pleadings. Thus, petitioner repeatedly states that Cities has never disproved its participation in the alleged conspiracy, despite the fact that the only evidence of such participation is his allegation that the failure to deal resulted from conspiracy.
a jury on the basis of the allegations in their complaints, coupled with the hope that something can be developed at trial in the way of evidence to support those allegations, we decline to accept it. While we recognize the importance of preserving litigants' rights to a trial on their claims, we are not prepared to extend those rights to the point of requiring that anyone who files an antitrust complaint setting forth a valid cause of action be entitled to a full-dress trial notwithstanding the absence of any significant probative evidence tending to support the complaint.
from the others on the ground that, as petitioner himself acknowledged and initially alleged, it was in a totally different position from the other defendants.
Thus, when petitioner emphasizes the considerable discovery had of him by the defendants as a group, he implies that Cities has been unfairly permitted more discovery of him than he has of it. He attempts to minimize the significance of the fact that Cities' participation in his examination amounted to a total of 3 1/2 days of deposition testimony by arguing that Cities benefited from the extensive examination conducted by the other defendants. The record reveals, however, that much of the evidence obtained by the other defendants in deposing petitioner and his associates is relied on heavily by petitioner himself to bolster his case against Cities. Had the record in this case consisted only of the evidence obtained by petitioner from Cities together with the testimony taken by Cities from Waldron, petitioner' case against Cities would be even weaker than it is. In fact, petitioner would undoubtedly have chosen to submit affidavits in opposition to Cities' motion for summary judgment containing much of the same material incorporated in his and his associates' depositions. Hence, petitioner benefited as much vis-a-vis Cities from the depositions taken by the other defendants as Cities did. Under such circumstances, petitioner cannot justifiably claim that Cities has been given an unfair advantage by the extent of his examination by the other defendants.
defendants, petitioner has always been willing to acquiesce in delay. [Footnote 20] Certainly petitioner cannot claim that it was the responsibility of the trial judge to hurry matters along by rejecting stipulations entered into by all the parties to the case.
"I think the obvious place to begin is with Cities Service . . . , and whether we need to go farther than that, I don't know, and it would depend very much on what turned up there. . . ."
It was only after two examinations of Cities Service personnel that petitioner finally made a formal motion for discovery of the other defendants in anticipation of Cities' renewal of its motion for summary judgment. In support of this motion, petitioner was able to point to no significant evidence that he had turned up to show any dealings between Cities and the other defendants, other than the largely abandoned Kuwait oil transaction. His basic argument was, and is, simply the general proposition that, in a conspiracy case, the evidence is usually in the hands of the conspirators, and that, therefore, he should have been permitted to examine the other alleged conspirators to see if he could obtain anything from them that would tend to link Cities to them.
barred from changing the theory of his case in response to information he obtains in the course of discovery. But when the evidence so obtained shows both that the defendant is, in fact, tangential and that the allegations by which he was linked to the other defendants are factually incorrect, we think that a burden should indeed be placed on the party changing his theory to show a significant likelihood that discovery of the other defendants would produce evidence different from that obtained thus far. In this case, petitioner has only speculation as to what discovery of the other defendants would reveal about their relations with Cities Service, and not very persuasive speculation at that, since all the evidence thus far produced by any party on this subject supports the hypothesis that Cities was opposed to the other defendants, rather than in collusion with them. Accordingly, it was not error on the part of Judge Herlands, on these facts, to deny that portion of petitioner's motion in opposition to summary judgment that requested general discovery of all the other defendants in this case.
Jones. He also argues that he should have been allowed to depose Carter. Finally, petitioner asserts that his examination of the three executives was improperly limited in scope by Judge Herlands, and that he should have been permitted general access to Cities' files for all documents in connection with Cities' activities in Iranian oil between the time he first approached Cities and 1955 in order to compensate for his inability to examine Jones.
It has already been observed [Footnote 21] that the absence of testimony from Jones in this litigation is largely happenstance, since there is absolutely no indication that Judge Herlands would not have permitted him to be deposed when Watson, Frame, and Heston were examined had he been available. In addition, while it is doubtless true that Jones, as president of Cities, could have testified more authoritatively with regard to certain of the questions concerning Cities' dealings in Iranian oil, petitioner's consistent attempt to portray those Cities executives who were deposed as uninformed underlings is substantially overstated. Notwithstanding some areas of ignorance, Watson, Frame, and Heston were privy to a considerable amount of information in connection with Cities' dealings both with Iran and with the other defendants. While Jones may have been the dominant figure in the Cities operation, it is simply unrealistic for petitioner to suggest that Jones could have involved Cities in a conspiracy on the scale which is alleged to have existed here without any knowledge on the part of the other major executives of the company.
him in that capacity. Petitioner does not adequately explain why, if such were, in fact, the case, he required a court order to examine Carter, who was not an employee of Cities. It should be emphasized in this connection that, so far as appears from the record, petitioner has introduced absolutely no evidence on his own behalf in this case except the deposition testimony obtained from himself and his associates by the defendants and the testimony and documents obtained from Cities pursuant to Judge Herlands' various discovery orders.
testimony was significantly likely to help him resist a motion for summary judgment. On the contrary, the timing of the initial request suggests strongly that petitioner was more interested in establishing grounds on which to contend that Cities' motion for summary judgment should not yet be granted than he was in actually discovering what evidence Carter was in a position to furnish to him. There is no real indication, despite his arguments to the contrary, that petitioner obtained information in the course of his prior discovery that made Carter a more vital witness in 1964 than he would have been in 1961 or 1963.
As for petitioner's documentary requests, and his complaints about improper limitation of his previous discovery presented in support thereof, it is apparent that the time period to which they relate is in large part a period during which petitioner was no longer having any dealings with Cities. This is important because, of two factors crucial to Waldron's conspiracy charge against respondent: first, petitioner argues that Cities joined the conspiracy when it refused to go through with a deal through him for Iranian oil, namely, in the latter part of 1952, and second, petitioner's contract with NIOC, the property right allegedly interfered with by the illegal boycott, expired in the spring of 1953. In addition, petitioner had, at the time of this motion, already obtained discovery of a very substantial number of documents having to do with Cities' dealings in Iranian oil prior to November 1, 1952, the latest point in time ever seriously suggested by petitioner for Cities to have joined the conspiracy.
further in litigation in which it had been originally joined solely on the basis of conjecture.
For the foregoing reasons, we hold that summary judgment was properly awarded in the courts below to respondent.
Plaintiff, Gerald B. Waldron, died in November, 1964. His executor has been substituted as the petitioner. We shall refer to both Waldron and the executor as "petitioner" or "Waldron" interchangeably.
Gulf subsequently settled with petitioner and is no longer a party defendant, although it remains as an alleged coconspirator.
This practice has since been changed by rule. See 4 Moore, Federal Practice ¦ 26.13, at 1154 (2d ed.1967).
Anglo-Iranian was a co owner of the Kuwait Oil Co., the actual holder of the entire Kuwait oil concession, but does not appear to have participated in the negotiations with Cities.
Petitioner argues that a "most favored nations clause" was inserted at the last minute for the benefit of Cities. The record reveals that the so-called clause was simply a unilateral declaration from Gulf in the form of a letter from its chairman of the board that, in the event of future price changes, its policy would be to give Cities the benefit of the better price.
Cities' president, W. Alton Jones, died in an airplane crash on March 1, 1962. Three other Cities' executives who had participated in varying degrees in Cities' exploration of the possibility of purchasing Iranian oil had also died by this time.
Although petitioner's discovery motion preceded respondent's renewal of its summary judgment motion, it is evident that petitioner's motion was made with full knowledge that a renewal of respondent's motion would soon be forthcoming. In a very real sense, it was thus a response to the summary judgment motion and was intended to serve as a ground for arguing that the motion should not be granted.
At this date, Watson was Cities' senior vice-president. He subsequently became chairman of the board.
In his brief in this Court, petitioner drastically changes his theory of conspiracy. He now argues that Cities' participation in the conspiracy was obtained by threats of retaliation from the other defendants. While conceivably petitioner could have argued at the trial level that, under such cases as Klors, Inc. v. Broadway-Hale Stores, Inc., 359 U. S. 207 (1959), and United States v. Parke, Davis & Co., 362 U. S. 29 (1960), acquiescence because of threats in an illegal scheme conceived and carried out by others for their own benefit makes the acquiescing party a member of an illegal combination, we decline to pass upon such a contention when it is presented for the first time in this Court. Although, at one point in this complex and protracted case, which has thus far produced over 12,000 pages of record, the petitioner alleged that the other defendants have "secretly threatened, induced and conspired with defendant Cities Service to break off all dealings with plaintiff," this intimation of a coerced acquiescence theory was never properly pursued. Klors and Parke, Davis have not been cited or discussed by petitioner once in the entire course of these proceedings. One searches in vain among petitioner's papers prior to argument in this Court for a single intelligible statement of this theory. In these circumstances, we cannot attribute error to the courts below for their failure to discern such a theory, nor would it be appropriate at this stage in the case for us to pass upon petitioner's theory of combination through coerced acquiescence and the accompanying difficult questions it would raise concerning Cities' liability to petitioner or possible rights over against the other defendants.
"[a]t this time and by these acts [referring to the Kuwait deal and the Consortium Agreement] . . . entered into combination and conspiracy with the other defendants."
Cities submitted an affidavit denying that Kuwait oil and a share in the Consortium had been given it as part of a conspiracy. In other words, Cities denied the factual allegations of petitioner, but not the ultimate legal conclusion based thereon, namely conspiracy. A fair reading of that document requires that it be given its intended effect as a denial of petitioner's claim against Cities. Moreover, petitioner never made this argument in either of the lower courts (especially not in the District Court where Cities could have remedied any defects in the papers supporting its motion had they been pointed out in time), and we are not disposed to consider it now, particularly in light of its extreme technicality as applied to the facts of this case.
Petitioner also objects that only W. Alton Jones could have adequately denied the allegations of conspiracy, and urges, therefore, that Cities' submission of such an affidavit from Hill, rather than from Jones, should be held against Cities as evidence of conspiracy. However, as previously pointed out, Hill was the natural person to respond to petitioner's factual allegations about Kuwait and the Consortium. See supra at 391 U. S. 271. Contrary to petitioner's characterization of Hill as an attorney and an underling, Hill was an executive vice-president of Cities, who had gone to law school many years before but who had not practiced law in a long time. As for petitioner's failure to examine Jones, that has been shown above to be due basically to his own lack of diligence. See also n 20, infra.
Indeed, it was for the precise purpose of overturning a line of cases in the Third Circuit holding that a party could successfully oppose summary judgment by relying on his well pleaded allegations that Rule 56(e) was amended in 1963. See 6 Moore, Federal Practice ¦ 56.22, at 2821 (2d ed.1966).
See supra at 391 U. S. 272.
In fact, the affidavit submitted by petitioner's counsel in support of his discovery motion is replete with references to the ill-use Carter allegedly suffered at the hands of Cities -- rather an unpersuasive argument in support of the suggestion that, in some way, Cities had prevented Waldron from obtaining access to Carter.
Petitioner conceded below that his discovery should proceed under Rule 56(f), rather than Rule 26.
The Court here upholds a summary judgment against a plaintiff in a suit for treble damages under the Sherman Antitrust Act. The case is a complex one in which the summary judgment was entered 11 years after the action was brought. It is strange, indeed, that, during the more than 11 years before the summary judgment was entered, the defendant Cities Service should have enjoyed the luxury of never having been compelled by the court to answer the complaint, never having been required either to admit or deny the plaintiff's charges that the defendant had entered into a conspiracy to destroy plaintiff's business by boycotting it. There is one thing still stranger and more fantastic about the case; although the court permitted the defendants to interrogate the plaintiff for 153 days over a period of 5 1/2 years, the same court refused during the 11 years to permit the plaintiff to ask any questions whatever of many of Cities' officers and employees who were most familiar with transactions about which the plaintiff complained. And all this was done in the face of our holding in Poller v. Columbia Broadcast System, Inc., 368 U. S. 464, 368 U. S. 473 (1962), that "summary procedures should be used sparingly in complex antitrust litigation" and that "[t]rial by affidavit is no substitute for trial by jury which so long has been the hallmark of even handed justice.'"
The following statement of the way this summary judgment was entered is sufficient, I think, to show the gross error of the Court's affirmance of he judgment.
Oil, one of the alleged conspirators. Jones' associates did not accompany him on this trip to Kuwait, and Cities made every effort to conceal the secret visit from petitioner. In fact, as late as 1960, during the course of this lawsuit, Cities continued to deny that Jones had ever gone to Kuwait while on the Iranian trip; the fact was not finally revealed until 1964, when petitioner was at last permitted to question some of the Cities officials who had been involved in the Iranian trip.
After the trip to Iran, Cities officials prepared a memorandum reporting favorably on the prospects for using Iranian oil, but then, in October, 1952, Cities abruptly informed Waldron that it had no further interest in the Iranian oil which petitioner was offering on such favorable terms. The intense pressure to which Cities was being subjected at this time by the major companies is suggested by an incident that occurred only a month later at the annual convention of the American Petroleum Institute. Jones, President of Cities, had been slated to receive the Institute's gold medal for being selected oil man of the year, but, at the meetings, representatives of the major companies threatened Jones that they would cut off Cities' supplies of its sorely needed crude oil if he dealt further in Iranian oil, and he was not presented with the gold medal. Three months later, the agreement between Cities and Gulf for the purchase of the Kuwait oil was formally executed. Then, after petitioner's efforts to sell the Iranian oil had completely failed, the Iranian Government was forced to agree to turn over the nationalized properties to a Consortium of the major oil companies, and Cities was granted a small share in the Consortium.
foreseen, in order to get the Kuwait oil and membership in the Consortium. After the complaint was filed, Cities examined petitioner at length, at the same time getting the court to postpone its time for answering the complaint until after these examinations could be completed. Then Cities filed affidavits charging that petitioner's allegations about the Kuwait and Consortium deals had no basis in fact, and moved for summary judgment. The court deferred ruling on the summary judgment motion, but, at the same time, refused to permit petitioner to obtain general discovery to enable him to prove his case against Cities; instead, the court authorized a limited discovery relating only to the Kuwait purchase and the Consortium arrangement; petitioner's inquiry was also sharply limited both as to the subject matter and the time period of any transactions that could be questioned. At the same time, the court refused to permit petitioner to take the deposition of Jones and those of his associates who had the greatest opportunity to know the reasons for the drastic change in Cities' attitude on buying Iranian oil. The Court instead ordered that only George H. Hill, a Cities vice-president who had never met petitioner or known anything about the Iranian oil deal but who had been in charge of negotiating the Kuwait deal and who had led Cities' attempts to obtain a share in the Consortium, would be required to answer petitioner's questions.
to petitioner was sharply limited. In addition, Cities' president, Jones, had died during the period when petitioner was restricted by the court's order to taking only the deposition of Hill, and thus petitioner was never able to question the one man who was the crucial figure in the alleged Iranian transactions. Of the seven other Cities officials who had been involved in these transactions, three had also died during the long period in which the court had stayed petitioner from taking their depositions.
In spite of the fact that petitioner had amassed considerable evidence of Cities' liability, in spite of the fact that Cities had been given unrestricted freedom to question petitioner while petitioner was barred from getting any information at all from Cities employees familiar with the Iranian transactions, in spite of the fact that the discovery eventually allowed to petitioner had been sharply restricted, in spite of the fact that petitioner never had an opportunity to question four of the eight Cities officials who had been most intimately connected with the alleged transactions, and in spite of the fact that Cities had never been required to answer the allegations of the complaint, the court entered summary judgment for Cities in September, 1965. 38 F.R.D. 170 (1965). The Court of Appeals, in a short, uninformative opinion, affirmed the decision of the District Court. 361 F.2d 671 (C.A.2d Cir. 1966).
in examining plaintiff, in getting affidavits and holding numerous hearings. It is little less than farcical to treat a case that eats up that much time as one suitable for a summary judgment. It certainly would not have taken one-tenth of that much time to give the case a full-dress trial, where sworn testimony before a jury, rather than affidavits presented to a judge could have been used to adjudicate plaintiff's rights in accordance with due process of law. An excuse for summary judgments has always been that they save time. If the time has come when the best speed record they can make is to take 11 years to decide one of them, the idea of summary judgments as time-savers is a snare and delusion, and the best service that could be rendered in this field would be to abolish summary judgment procedures root and branch. The plain fact is that this case illustrates that the summary judgment technique tempts judges to take over the jury trial of cases, thus depriving parties of their constitutional right to trial by jury.
to deal could, of course, be explained by a number of motivations, but petitioner contends that this record raises the significant possibility that Cities action was predominantly motivated not by legitimate business considerations, but rather by a decision to join the alleged conspiracy, induced either by threats of the conspirators or by a payoff in the form of the Kuwait and Consortium deals. The Court rejects each of these theories, although for sharply contrasting reasons, and concludes that, despite the possible illegitimate motivations, evidence now in the record suggests that other motivations were, in the Court's opinion, more probable. As I have already indicated, I could never accept this as the appropriate standard, under Poller, supra, for determining whether a defendant in a case such as this is entitled to summary judgment.
rules contemplate that a party may not be shut off from an opportunity to get affidavits to give him his day in court. No judge is granted power under Rule 56 or any other rule to completely deny a party all opportunity to take depositions or to get affidavits essentially needed to get a fair trial of his case. Such a course of conduct cannot possibly be called "just" within the meaning of Rule 56(f), and yet, here, this plaintiff, over a course of years, repeatedly pleaded with the district judge for an opportunity to examine Jones and other Cities Service employees particularly familiar with the Iranian oil deal in order to present facts he had no other way to obtain. Of course, a party who is suing a company and who is dependent for proof on company employees must have the force of the law behind him or he cannot get testimony from such employees against their company. That the rulemakers did not intend any such burdens to be imposed upon discovery is also shown by Rule 27, which even authorizes depositions to be taken, before any suit is filed, by any person who fears or expects that he may be a party to an action.
petitioner was and is yet entitled to examine the Cities Service employees still living who know about this case. Law and justice require it. Too much time has already been wasted in an effort to provide a summary disposition of a case that should not be disposed of that way.
The original plaintiff Waldron, like several crucial witnesses in this case, is dead, and this action is now being carried on by his executor. For the sake of clarity I will refer to the original plaintiff Waldron as the petitioner here.
Thus, Cities' President, Jones, instructed an associate to cable the Secretary of the Interior to advise the United States Government against purchasing gasoline from petitioner for military use. Although, in the Court's view, this cable was "primarily" designed to disassociate Jones from petitioner's efforts to promote the sale, ante at 391 U. S. 284, this is certainly a rather narrow view of a cable that explicitly states, "I seriously question wisdom of such action." In any event, I cannot understand how this Court can justify taking from the jury the responsibility for judging the primary purpose and effect of a piece of evidence such as this.

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In carrying out the purposes of this chapter, the Secretary is authorized to enter into agreements, including but not limited to land exchange agreements with other Departments and Agencies of both the State and Federal Governments, and with third parties, notwithstanding any provision of law relating to the transfer and disposal of Federal property to the contrary; except that the authority of the Secretary of the Interior regarding exchanges involving lands in the National Wildlife Refuge System on October 14, 1983, is not affected by this section.
Pub. L. 106–562, title I, §105(c), Dec. 23, 2000, 114 Stat. 2798 , as amended by Pub. L. 114–120, title V, §523(3)(B), Feb. 8, 2016, 130 Stat. 71 , provided that, effective on the date on which the Secretary of Commerce publishes the notice of certification required by Pub. L. 106–562, §105(b)(5), set out in a Termination of Responsibilities note under section 1161 of this title, subsections (a) to (d) of this section are repealed.
Substantially identical provisions repealing this section were contained in Pub. L. 106–554, §1(a)(4) [div. B, title I, §144(e)(5)(C)], Dec. 21, 2000, 114 Stat. 2763 , 2763A-247.
December 23, 2000, referred to in subsec. (c), was in the original "the date of the enactment of the Pribilof Islands Transition Act" which was translated as referring to the date of enactment of title I of Pub. L. 106–562. Section 1(a)(4) [div. B, title I, §144(e)] of Pub. L. 106–554, which was approved Dec. 21, 2000, is also known as the "Pribilof Islands Transition Act". See Short Title of 2000 Amendments notes under section 1151 of this title.
Section 1166(a) of this title, referred to in subsec. (d)(6), was amended generally by Pub. L. 106–554 and Pub. L. 106–562, and, as so amended, no longer contains provisions relating to establishment of a Trust.
2000-Subsec. (c). Pub. L. 106–554, §1(a)(4) [div. B, title I, §144(e)(4)(A)], and Pub. L. 106–562, §104(1), generally amended subsec. (c) identically, substituting present provisions for provisions which read as follows: "Within 60 days of the transfer of real or personal property specified in the document described in subsection (a) of this section, the Committee on Merchant Marine and Fisheries of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate shall be given a report prepared by the Secretary stating the fair market value at the time of the transfer of all real and personal property conveyed."
Subsec. (g). Pub. L. 106–554, §1(a)(4) [div. B, title I, §144(e)(4)(B)], and Pub. L. 106–562, §104(2), struck out subsec. (g) which read as follows: "The Secretary shall submit to Congress a report, no later than October 1, 1983, providing information on the status of the negotiations for concluding the documents described in subsections (a) and (d) of this section."
1983-Pub. L. 98–129 amended section generally, substituting provisions relating to the disposal of Federal property on the Pribilof Islands for provisions relating to the medical and dental care of Pribilof Islands natives. See section 1164 of this title.
"(a) In General.-The Secretary of Commerce shall, subject to the availability of appropriations provided for the purposes of this section, clean up landfills, wastes, dumps, debris, storage tanks, property, hazardous or unsafe conditions, and contaminants, including petroleum products and their derivatives, left by the National Oceanic and Atmospheric Administration on lands which it and its predecessor agencies abandoned, quitclaimed, or otherwise transferred or are obligated to transfer, to local entities or residents on the Pribilof Islands, Alaska, pursuant to the Fur Seal Act of 1966 (16 U.S.C. 1151 et seq.), as amended, or other applicable law.
"(5) not seek or require financial contributions by or from local entities or landowners.
"(C) any other matters which the Secretary deems appropriate.
"(2) The report required under paragraph (1) shall include the estimated costs of all actions, and shall contain the statements of the Secretary of Commerce, the Secretary of the Interior, any statement submitted by the State of Alaska, and any statements of claims or recommendations submitted by local entities and residents of the Pribilof Islands.
"(e) Definition.-For the purposes of this section, the term 'clean up' means the planning and execution of remediation actions for lands described in subsection (a) and the redevelopment of landfills to meet statutory requirements.
"(1) In general.-There are authorized to be appropriated $10,000,000 for each of fiscal years 2001, 2002, 2003, 2004, 2005, 2006, and 2007 for the purposes of carrying out this section.
"(2) Limitation.-None of the funds authorized by this subsection may be expended for the purpose of cleaning up or remediating any landfills, wastes, dumps, debris, storage tanks, property, hazardous or unsafe conditions, or contaminants, including petroleum products and their derivatives, left by the Department of Defense or any of its components on lands on the Pribilof Islands, Alaska.
"(1) Capitalization of revolving fund.-Of amounts authorized under subsection (f) for each of fiscal years 2001, 2002, 2003, 2004, and 2005, the Secretary may provide to the State of Alaska up to $2,000,000 per fiscal year to capitalize a revolving fund to be used by the State for loans under this subsection.
"(2) Low-interest loans.-The Secretary shall require that any revolving fund established with amounts provided under this subsection shall be used only to provide low-interest loans to Natives of the Pribilof Islands to assess, respond to, remediate, and monitor contamination from lead paint, asbestos, and petroleum from underground storage tanks.
"(3) Natives of the pribilof islands defined.-The definitions set forth in section 101 of the Fur Seal Act of 1966 (16 U.S.C. 1151) shall apply to this section, except that the term 'Natives of the Pribilof Islands' includes the Tanadgusix and Tanaq Corporations.
"(4) Reversion of funds.-Before the Secretary may provide any funds to the State of Alaska under this section, the State of Alaska and the Secretary must agree in writing that, on the last day of fiscal year 2011, and of each fiscal year thereafter until the full amount provided to the State of Alaska by the Secretary under this section has been repaid to the United States, the State of Alaska shall transfer to the Treasury of the United States monies remaining in the revolving fund, including principal and interest paid into the revolving fund as repayment of loans."


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John M. Gatti is a partner in the firm's entertainment litigation practice and resident in the Los Angeles office. His practice includes 31 years of litigation and trial experience in state, federal and bankruptcy courts as well as representing individuals and corporations in complex business and commercial lawsuits. John has trial experience across a variety of industries, with a specific emphasis in the entertainment, media and sports industries.
John’s experience in the entertainment, media, sports, Internet and gaming industries includes representation of studios, television networks, film financers, talent, gaming and sports entities, and independent entertainment production companies. These representations include actions for breach of contract; unfair competition; copyright and trademark infringement; profit participation claims; idea submission claims; and media torts, including defamation, invasion of privacy, right to publicity and use of celebrity name and likeness in all media, including the Internet.
John has been repeatedly named one of the Top 100 Influential Attorneys in Entertainment by The Hollywood Reporter and recognized as a Super Lawyer.
Alan Ladd, Jr. et al. v. Warner Bros. Entertainment—Represented the plaintiffs, including Alan Ladd Jr., former chairman of MGM Studios and two-time Academy Award–winning producer, during four years of litigation culminating in a four-week jury trial. The verdict was 12–0 in favor of plaintiffs in an entertainment industry precedent-setting case involving the methods of allocation of television licensing fees to films packaged with other films. The jury verdict found that plaintiffs’ films, including Blade Runner, Chariots of Fire and Police Academy, had been underallocated by Warner Bros. in the total amount of $96 million. In addition, the jury found by 12–0 vote that Warner Bros.’ licensing practices breached plaintiffs’ contract and violated the implied covenant of good faith and fair dealing pursuant to California law. This jury verdict was the first of its kind and has had significant ramifications for the entertainment industry. On May 25, 2010, in a partially published opinion, the California Court of Appeal upheld the jury verdict in a 3–0 decision. In addition, the Court of Appeal remanded Ladd’s claims of fraud, breach of contract for loss of credit and improper accounting for trial before the fact-finder. The California Supreme Court denied Warner Bros.’ petition for review.
BATJAC Productions, Inc. v. CBS—Defended CBS against net profit claims made by John Wayne’s heirs.
Brown v. CBS Studios, Inc.—Represented CBS in a copyright dispute challenging CBS’s ownership of the theme song to the iconic television show Hawaii Five-0. The plaintiffs dismissed their claims with prejudice.
American Federation of Musicians of the United States and Canada (“AFM”) v. MGM; Columbia Pictures Industries—Represented MGM and Columbia Pictures in this action filed by AFM, the guild representing musicians responsible for scoring films. This case alleged that MGM and Columbia Pictures breached AFM’s 2010 collective bargaining agreement with the studios by producing the movies Carrie and Robocop in the United States but allegedly scoring the movies outside the United States. The case was significant because it had the potential to impact how all studios interpret the AFM collective bargaining agreement as it relates to production activities.
Twentieth Television, Inc., Twentieth Century Fox Film Corporation (collectively, “Fox”) v. Bay City Television, Inc., and Grupo Televisa (collectively, “Bay City”)—Represented Twentieth Century Fox Film Corporation as a plaintiff in connection with litigation involving nonpayment by Bay City Television and Grupo Televisa S.A.B. of over $20 million in licensing fees owed for the broadcast of King of the Hill and The Simpsons on Channel 6 in San Diego. The case involved litigating Fox’s contracts giving it sole discretion to license its programming as it determines.
AFM v. Columbia Pictures, et al.—Resolved a significant matter for Columbia Pictures in a federal court action filed by AFM against Columbia Pictures and most of the major studios in AFM v. Columbia Pictures, et al., Case No. 2:15 cv 03953. AFM’s claims reached into the multimillions because of the extensive licensing activities at issue.
Branded LLC v. Clique Media, Inc.—Represented Clique Media, Inc., against trademark infringement claims involving Clique’s use of its trademark for “mydomaine.” Clique Media is a leading Internet fashion publisher owned by Michael Eisner’s The Tornante Company. This case was significant because it addressed complex trademark rights and the ability to exploit those rights in digital media. The case involved cutting-edge digital and Internet publishing and marketing rights.
Haber Productions, Inc. v. Fall Line Entertainment—Represented plaintiff in a five-week jury trial for the producer on an idea submission claim, leading to a jury verdict of $5 million in favor of our client, including punitive damages.
Williams v. CBS—Defended CBS against copyright and trademark infringement claims. Summary judgment was granted in CBS’s favor in the published opinion Williams v. Columbia Broadcasting Systems, Inc., 57 F. Supp. 2d 961 (C.D. Cal. 1999).
Corrie Sanders v. Lamon Brewster, WBO—Motion to dismiss granted and injunction denied in favor of our client, allowing the client to compete for the WBO Heavyweight Boxing Championship.
Baker v. Twentieth Century Fox—Defended the studio and television network against idea submission claims. The case was dismissed in our client’s favor.
Sheldon v. Columbia Pictures Television, Tony Danza, et al.—Defended studio and television producers against idea submission claims in a four-month jury trial.
Sunset Health Products v. Spectrum, et al.—Represented the diet drink distributor in a federal trademark and trade dress action.
Representation of individuals, corporations and partnerships involved in complex business litigation.
Representation in matters involving trademark and trade dress protection for various products.
Representation of construction subcontractors in complex litigation involving the construction of metropolitan transportation lines.
Representation of high-net-worth individuals and corporate clients in employment litigation, including trade secrets and right to compete.
Representation of film and television companies in entertainment guild arbitrations.
Speaker, “The Cases that ‘Rocked’ the Entertainment World in 2018!” Beverly Hills Bar Association, 2018 Entertainment Year in Review, January 17, 2019.
Moderator, "Creating New Strategy for Massive IP," VRS Conference, October 16, 2018.
Panelist, “Recent Digital Media Trends and Their Impact on the Entertainment Industry,” ACC’s Sports and Entertainment, June 22, 2016.
Guest Lecturer, "Privacy Torts, the Internet and First Amendment Issues," Loyola Law School.
Guest Lecturer, "Privacy Torts, the Internet and First Amendment Issues," University of Illinois Law School.
Guest Lecturer, "Current Legal Trends in the Entertainment Industry," Southwestern University Law School.
Author, "Legal Ramifications of AR and VR—Déjà vu All Over Again," AR/VR Magazine, May 31, 2018.
Coauthor, “Sizing up 2014's copyright cases,” Daily Journal, December 31, 2014.
Coauthor, “After 20 Years, Has Transformative Use Lost Its Edge?,” Daily Journal, November 5, 2014.
Coauthor, "Second Circuit Deals Blow to Rights of Broadcasters Under the Copyright Act," Intellectual Property Technology Law Journal, July 2013.
Coauthor, "Governor Schwarzenegger Signs New Anti-Paparazzi Legislation," Privacy & Data Security Law Journal, January 2010.
Author, "Cybersquatting," Producers Guild of America Publication, 2007.

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