HomeMy WebLinkAboutRESOLUTIONS - 01011968 - 68-911 t -
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1 RESOLUTION NO. 68/911 ,
2 -
3 PREAMBLE:
4 1 . The County of Contra Costa hereafter
5 galled entity, has previously authorized the Attorney
6 General of the State of California to institute on its
7 behalf one or more law suits under the Federal Antitrust
8 Laws which law suits were in fact filed against defendants
9 United States Steel. Corporation, Smith-Scott Company, Inc.,
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10 Kaiser Steel Corporation, United States Industries, Martin-
11
artin11 Marietta Corporation, United Concrete Pipe Corporation,
12 and American Pipe and Construction Co.
1.3 2. Pursuant to court orders, similar actions
14 brought by the Federal Government and other plaintiffs in
15 the States of California, Oregon, Washington and Hawaii
16 were all coordinated before a single Federal District
17 Court Judge.
18 3. In 1967 the actions against all defendants,
19 with the exception of-American Pipe and Construction Co. ,
20 were settled and compromised on a lump sum basis, the pro-
21 ceeds being distributed amongst the .varous plaintiffs
22 pursuant to an agreement, all of which was duly approved
23 and ratified by entity and approved by the Court.
24 4. A condition of the acceptance of said partial
25 settlement by certain plaintiffs not represented by the
26 Attorney General of the State of California was an agree-
27 meht by and between the plaintiffs concerning the conduct
28 of the litigation still remaining against, and the
29 allocation ainong plaintiffs of the expected recovery from
-34 defendant American`. This agreement known to plaintiffs
31 as the Western Associated Pipe Plaintiffs Organization
8 911
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1 Compact provides, among other things, for (a) common
2 sharing of expenses; (b) the retention of a lead
3 counsel to prosecute and try all cases against the
4 remaining defendant American Pipe and Construction
5 Co. under the supervision of an Executive Committee
6 of the plaintiffs party to the compact; and (c) the
7 distribution of any recovery against American to
8 all plaintiffs proportionately to their verified
9 transactions with American over the fourteen year
10 period 1950 through 1953.
11 5. On July 14, 1957, the Attorney General,
12 of the State of California entered into such Compact,
13 hereinafter called WAPPO, on behalf of entity. Since
14 then, the agreements embodied in the WAPPO Compact have
15 been and are being carried out with the Attorney General
16 of California as chairman of its Executive Committee.
17 6. Plaintiffs ' counsel, acting through their
18 Executive Committee and Lead counsel, have now negotiated
19 and reached agreement- on the terms of a settlement and
20 compromise of the litigation with defendant American
21 Pipe and Construction Co., the terms of which are more
22 fully set out in the attached document entitled "MEMORANDUM
23 OF UNDERSTANDING FOR SETTLEMENT OF WEST COAST PIPE CASES
24 BETWEEN ALL PLAINTIFFS AND AMERICAN PIPE AND CONSTRUCTION
25 COMPANY".
26 7. Such Memorandum of Understanding provides
27 fcxr payment by American to all plaintiffs of the lump
26 sum amount of eight million five hundred thousand
29 dollars (,$8,.500,000) over a period of seven years
30 with interest.
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68 911
2.
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1. NOW BE IT RESOLVED THAT:
2 A.
3 The MEMORANDUM OF UNDERSTANDING FOR SETTLEMENT
4 OF WEST COAST PIPE CASES BETWEEN ALL PLAINTIFFS ANIS
5 AMERICAN PIPE AND CONSTRUCTION COMPANY and the Western
6 Associated Pipe Plaintiffs Organization Compact, copies
7 of which are attached hereto as Exhibits "I" and "IIT",
8 respectively, are hereby adopted, ratified and confirmed.
9 B•
Chairman of the
10 The Board of Supervisors of entity is
11 hereby authorized to sign the release of claims against
12 the defendant and attached hereto as Exhibit "II" as the
13 official act of entity.
14 C.
15 The Attorney General of the State of California
16 is hereby authorized by entity to enter into a stipulation
17 dismissing this litigation with prejudice and without
18 costs and to take any and all other action which may be
19 required of this entity in order to effectuate and con-
20 summate the compromise and settlement provided for in said
21 Memorandum of Understanding and distribute any monies
22 received from defendant American Pipe and Construction Co.
23 in accordance with said WAPPO Compact.
24 Adopted this 24th day of December , 1.9 b$.
25
26
27
28
29 Attest
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31
68 1
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1 NXEMO RA1OUK Or U EI:STAED11u FOR SETTLEMENT OF WEST COAST PIPE
2 CASES BETWEEN" ALL PLAINTIF'F'S AND AFRICAN PIPE AND CONSTRUCTION
i} COMPANY I
Pt,
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Par •
6 1; The parties to this memorandum of understanding are the
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7 Western A.7sociation of Pipe Plaintiffs ' Organization, hereafter
8 referred to as "WAPPO" , and American Pipe and Construction
9 if Company, hereafter referred to as "Americana'
10 Amount to be Paid:
11 American agrees to pay to the fiscal agent designated by
3
12 WAPPO the sum of eight million five hundred thousand dollars
l3 ($8,500,000} payable as follows , to wit;
1.4 � The sum of one million two hundred fifteen thousand two
30
hundred dollars {$1,215,200} on or before January 1, 1969 , to
I0 the fiscal agent designated by WAPPO which said sum shall be
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17 placed in either an interest-bearing savings account or in the
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18 '1 ' purchase of a certificate of deposit at the option of WAPPO and
19wn n' c' is to be returned to American in the evert of a failure
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to consummate this settlement within nine months of the date
21 ;l hereof. Said fiscal agent shall not distribute the sum of one
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22 i million two hundred fifteen thousand two hundred dollars
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23 x$1,215 ,200} to,the plaintiffs until the fiscal agent has received:
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2 ' !, certified copies of the orders of dismissal of all WAPPO Pipe Cass-s
23 American further agrees on or before January 1, 1969 toIt
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20 deliver to said fiscal agent its promissory note in the sun. of
seven ill on two hundred ezg�,.�your thousande :� n�ikar: ,3
28
dollars s {$7,284,800) payable to the order of said fiscal agent j
2 f; at it-- address in installments as shown on Exhibit "A" a.r..i bearing,
30
interest- at the rate of five percent { `/4) per annum, on the !
Qecl'ining balances of said note, said interest to be payable at.
32jr
EXHIBIT 1 ,. p. 1 of 5 6 9 1 I
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s e time principal payments are required to be made here-
2 under. Said note shall further provide that if 2:1y interest
3 „ is riot paid as it beco,es due, it shall be added to the principal
�4 and bear a like rate of interest. Said note shall further
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prov de that if any payment of either principal or interest
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6 is not made as it becomes due, the entire balance of Said note
7E reraai nine unpaid shah, become and be immediately due and payable.
�f Said note shall also reserve to Americanthe right to make pay` a
amen s on account of principal or interest in advance of their
10due date without penalty. Said note shall further provide
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11 !i that in the event an action is co�znen ced to collect said note
12or any part thereof', there shall be added to the jud�mert for
1 ;' Gay principal or 1n Brest found by the court to be due such
l- t add-tiona 1. sun by tray of attorneys ' fees as to the court having. ►
' jurisdiction of said cause shah, seem. r�asonable, said attorneys'
16 Lees to be clue on the film; of a
�r v •
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if Amarica.n by December lb, 19058 shall provide VIA ppO with copies
21 rt
f OL any a r<d all agreeme is or amenumexfts thereto with creditors
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22 " oL 'Amar-JI-can w''qi cis authorizes the performance of this
23
ii mamora ndum of understanding .and sinall be in forzi and substance
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`-" ;' satisfactory to counsel for WA-PPO.
y
wio `• �!Y"« �3 L'tia� avrees * t'�'.hat,, it will provide sucII assistance in
20 £' ve`.^i rY n-n ' �1di.ntiLfs ' trans actions as WAPPO shall from time to
~' American and its attorneys agree that the appeal of a �t
2y ,. , t
:..s.X:1�:�'i:r against t�3,t?' City- Oi San Diego shall -be Cc}.s :1..5a�,'.i.;
b,y .'Deco:nbe 106 , 1968, and to withdraw r ot:.ons - by Ar,.Ierica n €
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the va.. .dx.tly 'dC��,•YC`�'..c4.1-.oLL 4.1. .JG�'+w�...a ' 1
v .i f ��.� S ,ata Cis: Ca«.],.r".o nia, Ar.;�"..wC ,%� :; t' :t�emanc 't7a.za t is �
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1 C`Lty and County of San Francisco, and all other pending motions
2 and challenges in the Western Pipe Cases.
a American and its attorneys agree to execute a covenant in �
a fo "ra satisfactory to WAP-130 covenanting that American and its
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att.orneys shall not further attack in any manner the validity
6 of and -the selection of special counsel by' the State .of
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7 California.
8 Each plaintiff that is a signatory to WAPPO shall release
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9 ; its claim against American, and special counsel for WAPP4
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10 shall stipulate to dismissal with prejudice and without costs
11 ;; of its action against American.
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12 ,; r.-otective Order: '
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13 No person attending the meeting between counsel on November
II* ; 20 and 21., 1968 concerning the subject matter of this memo.11. m
1 of understanding shall. divulge the nature thereof nor of any
16 of the subjects discussed thereat to any person whose
17 It responsibilities or duties to one or more of the parties herein
18 co not require that -he be consulted concerning or infor-m ed of
19 said discussions in order for one or more of said parties to
20 take action with respect to any of the subjects discussed o
2's. _ said dates , and no officer, employee or agent of .any of the
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22 Da4t�es hereto shall disclose any of the aforesaid subjects to
any other ;person- whose responsibil.ities or duties to one or
2 -,.ore of the parties do not require such other -person to have
A
25 kn-owledge of such subjects in order .foa one or more of said
2 parties to take action• with respect thereto, until; #
^' ✓e ca:? 1 e:,_' 2 . 1968, o;" one dwy i:ol owing
Jury in -he trial of Washington Public .Power System Supply
V. American, whichever is later. #
Cons tion of Settlement:
.e se tlemie,.nt herei.l re"arred to resulted -from d,ils cuss ions �
t7etw,:en counsel %or plaintiffs a d American in p:ri ce-adii. s
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EXHIBIT Z _ . 3 of 5 ^.
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before the Honorable Martin Pence concluded on November 21, 1968
2 in San Diego, California.
Cozen sel for the parties hereto each agree to recorxiend in,
toga faith without qualificacion and with full measure of
a �` suDnor , the settlement set forth herein to their respective
ti
5 ; client or clients, it being understood that ratification by
7 such clients -is necessary.
In consideration of the payment of the settlement amount
9 set. forth in this memorandum of understanding', plaintiffs
10 i shall deliver to American duly executed releases and tipulati.ans t
11 13 to dismiss a albove provided, together with duly adopted and
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12 certified resolutions or equivalent documents ratifying and
?a t confirming this settlekrzent«
Z� ! American agrees to furnish WAPPO with certified copies of
15 ii the resolution of American Pipe and. Construction Cor:,pany`s
IS ii board of directors , and certified copies of the resolution of
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i7 iE Pipe Linings , Inc. (the lay er concerning the City of San
lg Diego liti ration) authorizing American's :*fficers and attorneys
# vo make this settlement,.
23 The doc-,,.nerts referred to shall be in such form as shall be
1 agreed to between WAPPO and American.
22 P.xecu tion of this Memora-nehar :
2� 'C" is rfemorandu:,n of understanding may .be executed n any
0
21. r<, .ber of counterparts with like effect as if all signatures f
wo -Giere op the original,
.,.. DAf7_D: November 21, 1968.27
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�t:. er ,�uSCy t Geo1 ,,,,ja ^W* Jansen
EXHIBIT I p. 4 of 5
P.AYi%2-,NT SCHEDULE (10i' ' 'CL n1NG
J=:-:uuky 1, 1969 $1,215, 200
JLIy 1, 1969 505,800
October 1, 1969 505,800
Ja-.-.u4 ry 1, 1970 z 505,800
A ::it 1, 1970 505,800
July 1, 1970 505,800
January 1, 1971 472 ,300
July 1, 1971 4722,300
January 1, 1972 472 ,300
,slily 1, 1972 472 ,300
January 1, 1973 472,300
July 1, 1973 472,300
January 1, 1974 472 ,300
July 1, 1974 472 ,300
January 1, 1975 471.)600
Total $8,500,00;
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EXHIBIT "A"
EXHIBIT ` P. 5 of 5
68/ 91
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1 RELEASE OF AMERICAN PIPE & CONSTRUCTION CO.
1. This release is executed in favor of and .far
4 the benefit of American Pipe & Construction Co., a California
5 corporation, together with its subsidiary and affiliated
6 companies and the present and former officers, directors,
7 employees and agents of American Pipe & Construction Co. and
8 its subsidiary and affiliated companies, including successors
9 by merger, the heirs, representatives, executors, adminis-
` 10 trators, successors and assigns thereof (hereinafter designated
11 as "American" ) .
12 2 . This release is executed by
13 The County of Contra Costa
14
15 hereinafter designated as "Releasor" .
16 3. This release concerns and relates to the
17 following products and services manufactured or supplied
18 by American: concrete or steel, pipe or any other products
19 or services associated with the constructionofpipelines
20 and other installations utilizing concrete or steel pipe,
21 including by way of illustration only and without limiting
22 the generality of the foregoing;, the lining or coating of
23 new pipe, the rehabilitation of used pipe, both in place
24 and elsewhere, pipe lining materials such as "Amerplate, "
25 either separately or as a constituent part of pipe manu-
26 factured by American or others, and. "specials" such as
27 manhd"le pipe and fittings manufactured, sold by or supplied
28 by American ('hereinafter designated; "pipe products" ) .
9 4. The period of time covered by this release is
30 prior to January 1, 1969, but includes nevertheless any
31 transactions between American and Releasor either directly
1.
68 /911
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1 or indirectly which transactions are 'still pending as of
2 January 1, 1969.
3 5. For and in consideration of the sum of One
4 Dollar ($1. 10) and other valuable consideration paid by
5 American to Releasor, the receipt of which is hereby
6 acknowledged, Releasor ;hereby forever releases, discharges,
7 and acquits American of and from each, every and all claims,
8 controversies, actons, causes of action, obligations or
9 liabilities of any nature whatsoever, now or hereafter
10 known, suspected or claimed, which Releasor or any of its
11 agents ever hada now has or hereafter can, shall or may
12 have or allege against American based upon allegations of
13 conspiracy, collusion, monopoly or attempted monopoly, which
14 might be asserted under the Clayton Act (15 USC, §§ 15 and
15 26), or under any other state or federal antitrust trade
16 regulation or similar law giving rights to relief under
1.7 the same or similar circumstances; and in connection with
18 the foregoing only, Releasor expressly waives the provisions
19 of Section 1542 of the Civil Code of the State of California,
24 reading.
21 ",1542. (Certain Claims Not Affected by
General Release . ) A general release does
22 not extend to claims which the creditor
does not know or suspect to exist in his
23 favor at the time of executing the release,
which if known by him must have materially
24 affected his settlement with the debtor. "
25 6 Releasor warrants that the persons executing
26 this document on behalf of Releasor are fully authorized
27 so td do and Releasor makes such warranty in full knowledge
28 that Releasee has no independent knowledge of the authority
29 or Lack thereat of such persons but is relying upon
30 Releasor's warranty.
31 f
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1 7. Any claim, action or controversy concerning
2 this release shall be determined under the laws of the
3 State of California.
4 IN WITNESS WHEREOF, Releasor has caused this
5 release to be executed this 24th day of December ,
6, 19 6 8
7
8 The County of Contra Costa
u
9 name Br Re
10
BYAlfred M. Dias
11 Office Chairman of Ze Bard o upervisors
12 Attesting Witness__' � -
Barbara Kemp
13 Office Deputy Clerk
14 For: W. T. PAASCH, County Clerk &
Exoffic o Clerk of the
15 Board of Supervisors
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3.
68 / 911
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WESTERN ASSOCIATED PIPE
PLAINTIFFS'' COMPACT'
1. This Agreement is made and entered into this
14th day of July : 1967, by and between the parties '
set forth on attached Exhibit "A. "
Background to and Pun2ose of Compact
2. The parties have each for some time asserted
against defendant American Pipeand Construction CoVr any
(hereinafter usually called "American") , and others in
Federal Court complaints and causes of action alleging
damage occasioned by activities in violation of the federal
antitrust laws.
3. Certain of the parties are also asserting com-
plaints and causes of action of the same nature against .
American Vitrified Products Co. (hereinafter called "Amv t")
and certain of the parties are asserting complaints and
causes of action of the same nature relating to in-place
pipe rehabilitation against Pipe t nings, Inc. , a subsidiary
of defendant American.
4. The parties are in the process of effectuating
an agreement with certain other defendants in the above actions
concerning the pipe transactions of said other defendants and
their respective liabilities with respect thereto and reserving
to the parties their causes of action against all other persons,
firms, and corporations, including American, Amvi.t and Pipe
Linings, Inc
5. The parties have been and are currently required
by the Courh in their handling, past and present, of ,this
mass of litigation (hereinafter collectively referred to as
the "Western Pipe Cases" or the "litigation") to
cooperate and to coordinate their respective a.etivites through
a 'single counsel and an attorneys ' steering committee
1,
68/ 911
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EXHISI7 Ill
without any assurance of 'relative trial priority inter; se
or of any specific degree of trial consolidation and to
proceed to collective and simultaneous preparation for
trial of all causes pending against American.
6. It further appears from the volume of claims
now asserted against American by the parties- that ;successful
early trial of only some of said. causes and execution of
judgment thereon could substantially prejudice the
collectibility of other claims of equivalent .merit and equity.
7. To achieve equity and parity of right and
bearing in mind the ultimate equivalence of the public
interest in all meritorious claims, the parties intend by
this Compact to provide a contractual framework to accomplish,
among other things, tte fallowing.
(a) Create an organization named and
hereinafter called', "Western Asso-
ciated Pipe Plaintiffs ' Organiza-
tion," or, "WAPPO " which will
equate their diverse interests.,
sum their common interests and'`
decide; on steps to be taken by
the parties in the Western Pipe
Cases,
(b) Crea.*te an Executive Committee of
WAPPO to oversee the day-to-day
conduct of the Western Pipe Cases
by special counsel;'
(c) Arrange for the engagement of quali-
fied special counsel to conduct ,the
Western Pipe Cases on 6 day-to-day
basis until concluded, subject
to the supervision and control of
Executive Committee;
(d) Provide for the financing of the
Western Pipe Cases and the
appointment of a Financial Committee
Y composed of two trustees to handle
and administer all financial, provisions
of this Compact;
(e} Provide for the distribution of pro-
ceeds realized from the Western Pipe
Cases among the panties on a pro rata
basis in accord with the verified dollar,
magnitude of each party's claim';
and
68 / 911
2.
NOW, THEREFORE, in considerationof the foregoing
Promises, recitals, objectives and purposes, and for other'
valuable Consideration, the parties hereto mutually agree,
as follows
WAPPO: Organization, Membership, Powers and Duties,
Voting, Procedures, Activities, M seellaneous
$. There is hereby created the Western Associated
Pipe Plaintiffs ' Organization (WAPPO), whose membership
shall consist of each party to this Compact and each of
which parties shall be represented in WAPPO activities by
and act through a representative who is an attorney. This
attorney may represent more than one party. (A party may
designate alternate representatives. ) Each party hereby
delegates to its representative all necessary authority,
subject to reasonable reports, to carry out Compact, except
as to those matters expressly requiring party governing
body action.
9. WAPPO shall meet on the call, reasonably
noticed, of Executive Committee, special counsel, or of
35% of the votes of WAPPO members evaluated by the formal
(transaction basis) vote prescribed herein.
10. Voting at WAPPO Meetings :
(a.) 'Unless any representative requests
a forma, transaction basis vote or this Compaot elsewhere
86 requires, representatives shall, each .vote on the matter
being considered, each representative to have only one
vote regardless of the number of
parties he represents.
This shall be known as the "informal voting basis," .
3.
(b) Whenever 'a representative, requests a
formal (transactionbasis) vote or this Compact so requires,
the matter in question shall: be determined by formal 'vote
and formal vote shall supplant informal vote on the same'
matter if occurring at the same WAPPO meeting. In a formal
vote each representative's vote shall be weighted to reflect
inter party the % of dollar volume of the parties for whom
the representative votes and represents to all parties ' dollar
volume (i.e. , 100%) based on pipe acquisition transactions
of the parties from 'American as determined from the 8'-year
verified transaction statements of American (Sept, 1, 1954
- Aug. 31, , 1962, inc. ) on file with the Bank of America
National Trust and Savings Association in Sana Francisco in
its capacity as agent in effectuating the agreements
referred to in paragraph 4, above.
(c) Any representative at any WAPPO meeting
may request either an informal or formal vote on any matter
and if the request is seconded the vote shall be taken.
(d) unless otherwise , specif .ed herein, an
informal vote she 11 be decided by a simple majority of
those present and voting; and a formal vote shall be
decided by 51% of the dollar volume present and voting. '
11 Duties of WAPPO Representative:
Each member shall perform such litigation
tasks as are assigned to it by special counsel, and/or the
Executive Committee er by majority WAPPO vote. Such tasks
are to be distributed'`as -equitably as Possible.
12,. . A quorum for WAPPO meetings shall be 51
of the dollar value of the 8-year Period American verifi-
c'ation statements.
13. The designated WAPPO representatives of the
parties are set forth on Exhibit "A" opposite the name of
the party ''represented,
4. 68 /911
EXECUTIVE COMMITTEE:
OrganizatIon, Membership, Powers and Dutiess_
votin Procedures. Miscellaneous.
14. The Executive Committee shall consist of one
WAPPO representative from each of the following parties or
groups of parties.
(a) Pacific Northwest
(b) S'ta to Of Ca 1 ifornia'
(0') Loa Angeles County Flood Control District
(d) City of San Diego
(e) Other California Plaintiffs
Such representative may be removed by either the naming
party or by a 90% formal WAPPO vote but the successor shall
be named by the naming party. A party may voluntarily resign
Its right to designate a WAPPO Executive Committee representa-
tive, in which case a 51% formai WAPPO vote shall, designate
the succeeding naming party. The members of the Executive
Committee and their alternates are set forth on attached
Exhibit An alternate may vote in the absence of his
principal.
15. The permanent Chairman of the Executive Committee
shall be the representative of the State of California,
16. The Executive Committee shall meet as needed in
its or its chairman' s discretion to carry out its duties and;,
In addition$ shall meet on call, reasonably noticed, of
special counsel.
17, Executive. Committee meetings shall be limited to
its personnel, their aides as needed and the ex officio members
who shall be, however, without vote, Said ex officio members
are special counsel, , his aides as needed and the members of
the Financial Committee established by this Compact.
18. Any WAPPO member may ('but without Grote) attend
Executive Committee meetings where his case is under special
consideration or the meeting is with representatives of
American and his case is under special con.*sideration.
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19. Any WAPPO memberttiay attend (but without
vote) any Executive Committee meeting where he is .requested
to attend by a ,committee member, . but such request *shall be
for cause
20. . Executive Committee, subject to the terms -
,and conditions of this Compact, shall have full authority. - ,
to 'supervise and control special counsel in his carrying out
of the day--to-day administration of the litigation.. ' Execu-
.tive Committee shall -report on its activity at WRPP4 meetings
called as the litigation situation renders desirable. ' there
still feasible, WAPPO may review and reverse Executive .
Committee decisions by majority vote.
21. Representatives of the Executive Committee
may attend such of•. special aounse>lrs meetings with repre-
sen.tative of defendants as said committee chooses.
22. Voting%, at ExecutiveCommittee Meetings:
All 'Executive Committee matters shall be determined in
Executive Committee meetings -'by a simple majority of the
members present, :'except those matters otherwise treated in
this Compact. A quorum for Executive_ Committee meetings
shall be three members unless the non-appearing members
waive a quorum.
23. Executive Committee members` shall be reimbursed
their reasonable travel and living expenses in attending
meetings of the Executive Committee duly called as provided
in this Compact.
SPECIAL COUNSEL
Engagement of - Basic Terris;
Powers anti T)11t3es,
24* The provisions( this Compact zhall control
over the provisions of the contract of engsemwnt of special
counsel' and that contract shall sa acknowledge.
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68 / 911
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j 25. The Executive Committee shall contract-,
behalf of WAPPO for the engagement of special counsel
sistent with the provisions of this Compact.
26. Special counsel shall be entitled ;to be reim-
bursed for expenses incurredin carrying out his duties, as
follows: personal. expenses such as transportation, hotel
and living_ expenses, and the usual expenses of litigation,
such as reporters' fees, deposition costs and handling of
documents may be incurred without prior approval by the
Executive Committee,. ,Extraordinary expenses such as expert
witness fees or the employment of personnel, must be approved
in advance by the Executive Committee. Expenses will be
paid for on a monthly basis based on statements thereof'
submitted to and approved by the Executive Committee and
Finance Committee.
27. Special counsel shall receive for his services
his out-of--pocket expenses and 10% of amounts recovered from
American, American Vitrified, and Pipe Linings, Inc. in
concluding all the litigation against said defendants, after
first deducting the out-of-packet expenses of WAPPO from
such recovery. These shall include all ,point WAPPO expenses
but not those of the individual members. Any awards of
attorneys ' fees or costs shall be held and di.s.tributed by
the Finance Committee in the same manner as are proceeds of
settlement or judgment,
28. Special counsel shall not receive on account of
his 10% contingent fee more, than $500,000 unless and until all
WAPPO causes of action against said defendants now on file or
subject to a motion to add in the litigation have been. terminated.
29.. Subject to thin Compact, the day-to-day super-
vision and control: of Executive Committee and the
rendition
of adequate and timely reports to the Executive Committee,
special counsel shall have the duty, responsibility"
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and authority to 'conduct the litigation to a final ' coni-
+elusion on behal.f''of all WAPPO members. Special counsel.,
with majority Executive Committee approval, may -determine
the trial priority stance of WAPPO before the- 'judiciary.,
30. Special counsel is not obligated to initiate
and conduct' an appeal except as he is directed; by the
Executive Committee, but shall be obligated to defend all
appeals.
FRANCE COW ITTEE
Organization; Membership, Powers
and Duties, ,
31. There is hereby created the Finance Coml;nittee.
of WAPPO, composed of; two individuals, Robert M. Desky, Esq.
and John M. Burnett, Esq. , who shall function' vis-a--vis
WAPPO as trustees in the matters here set forth.
32 . The Finance Committee shall 'be the historical
successor and heir to the financial adhinistrators of the
Association of Pipe Antitrust 'Plaintiffs (APAP) , who
arranged for and handled group financing of the litigation
prior to about July ';x, .1967.
33>. The Finance Committee shall arrange for and
handle the funding of future litigation expenses and the
payment thereof. Funds for the payment of litigation
expenses will be obtained from the parties comprising WAPPO
by means of pro rata assessment based upon the American 8-
year' verification statements. Such assessments shall. 'be
proposed by 'the' E nan e -Commi.ttee :from time to time in such
amount as may be necessary to provide a' fund for the payment
of anticipated expens6s •of the litigation and shall be
approved by the members of WAPPO. Each member of' WAPPO`
hereby agrees:.' to. pay approved assessments promptly upon.
demand.
... ...... ...... ......... Aw
f
f
34. The Finance Committee is authorized to make,. .
suitable arrangements for the safekeeping of all Funds
received by them or subject to their order and to engage,
at WAPPO expense, clerical personnel as required in carrying "
out their duties hereunder,
35. The Finance Committee shall handle all financial
dealings with special counsel and the Executive Committee,
the payment of expenses and all other financial aspects of
the litigation. The Finance Committee shall make the necessary
arrangements for and shall oversee the distribution of
proceeds of all recoveries contemplated herein.
Authority to Negotiate Settlements, to
Recommend Approval of Settlements, to
Approve Settlements,
360 .kept as hereinafter provided, special counsel
shall only be authorized to. effect a negotiated. settlement
of any cause or causes of action upon unanimous recommendation
Of all members of the Executive Committee, In the event that
settlement of one or more causes of action, but less than
all, is to be negotiated, the recommendation of the attorney
or attorneys of record for the plaintiff or plaintiffs
involved shall, also be secured. With respect to any case,
however, which is in the course of trial (i.e. , called for
trial by the clerk and on which hearings are currently pro-
ceeding prior to verdict, or in the instance of a court trial,
prior to submission of the cause for decision) , special counsel
shall be authorized to effect a negotiated settlement of the
case at trial upon the recommendation of three out of five
members of the Executive Committee, provided that under such
circumstances the additional recommendation of the attorney or
attorneys of record for the plaintiff or plaintiffs whose
claims are being tried must also be secured.
Notwith-
standing the foregoing provision, however, any settlement
which shall constitute a settlement of the claims of
9. 6 /9 1 -
all plaintiffs aair st; Orle or, more defendants in the
Western States Pipe Cases must receive the unanimous re-
comendatior€ of. all members of the Executive Committee.
37• It is expressly agreed that no party shall
settle any- cause, of action referred to herein in which it
is a plaintiff except in accordance with ' the provisions of
this Compact . In the event that any settlement is recom-
mended by special counsel, and by the Executive Committee
in accordance with the provisions of the Preceding paragraph
36, it is; agreed on behalf of all attorneys of record f6r
WAPPQ members that they, and each of them, wild, in" good
faith, recommend approval: of such Settlement to their public
agencies or superiors than they represent .
38. Notwithstanding any other prevision of this
Compact, the governin bodies of the parties hereto
expressly reserve the right to approve or disapprove any
settlement affecting their respective causes of action.
This reservation, however, shall' not be deemed to affect
the authority delegated by this Compact to WAPPO, the-'
Executive Committee and special counsel as regards the
day-to-dayconduct of. the ii,tigation.
Distribution of Proceeds of Settlement and
Judgments ;Obtained in the Lit;i atjon.
39• All monies recovered and received from de-_
.fe.ndants American, Amv t and Pipe Linings, Inc. as the
Pro
ceeds of either' a settlement negotiated and agreed upon
or
a Judgment rendered .in the litia.ati n shall be transferred ,
Immediately upon receipt' to the order of the Finance Com-
mittee f"or deposit in a state or national bank designated
by said Finance Cormn t vee, ' And shall be distributed as pro-
vided hereinafter:
..... .....
4o. �P.roce..e�.d,'.s_-* Prior' Ity ofDistribution.
All
proceeds received by the 'Finance Committee shall be dis-
35
burled according to the following Priorities: .
(a) Fees of a bank., if any, 'serving as a
depository, or agent for payment.
{
(b) Other expenses of distribution.
(c) Reimbursement of all plaintiffs for the
litigation expenses advanced or paid by them to WAPPO pursuant
to assessments duly made in accordance with this Compact.
4
(d) Payment to special counselof the fees
k
4
and expenses authorized in accordance ' with this Compact.
(e) The balance of the proceeds as provided
in paragraph 41.
41. Proceeds: Distribution of recoveries from
defendant American and Pipe Linings, Inc. After payment of the
expenses' referred' to in the preceding paragraph, the balance
of the proceeds (hereinafter referred to as net proceeds")
received from defendants American' and Pipe Linings, Inc. ..
whether by settlement or judgment' in any cause of action
in the Western Pipe Cases shall be distributed among all
the parties to this Compact in proportion to the dollar
value that each party' s pipe acquisition transactions from
American bears to the total transactions of all the parties,
using the transaction verification statements of American
for the 8-year period referred to in paragraph 10(b) , above,
aS supplemented by the additional transaction verifications
required by court order of American for the periods January' 1,
1950 through August 31, 1954, inclusive, and September 1,
1962 through December 31, 1963s inclusive, the aggregate of
all such periods being referred to herein as "the 1.3-year
period. " Additionally, ' pipe reha.bili.itation transactions of
/9 111
11'
ane City and County of San Franciscoto a maximum of
�3
million, and of the City of San Diego to a maximum of
million, if said entities or either of them are ' anti
1 p es to
Compact, will share .in the ib
distratian of the ne
# t
proceeds that are tFie sub, ect of thisar
p agraph nn the
basis of 50.' of the amounts of such transactionsas
ve rif'ied
by American or <Pipe> Linings, Inc. wi thin the, said 13-year'
Period.
42• Proceeds: Distribution of recoveries fro
m
Amvit; All net proceeds, as defined herein, of the litiw
Bat on received from defendant Amvit whether by settlement
ar Judgment, shall be distributed exclusively to
' Y the party ,
or ;parties who have specifically ,asserted complaints and
causes of action: against said defendant, in proportion to
the dollar value Of the pipe acquisition transaction of
each such' party,; determined or verified in such manner as
maY be agreed in writing by all of- said parties partidi
in this distribution. _ paling .
43. Proceeds: Partial. ci.stributi.on , No
or interim distribution of proceeds partial
of any settlement Or
Judgment Or any combination hereof shall be made except by .
.formal 75,0*' vote of the -
parties to
,this Compact. NO such
partial or interim *distribution shall 'be Made or
calculated
until the parties shall have been reimbursed in the -amount
Of the assessments'
.previously paid' to the Finance Committee
for,litigation` expenses and until afters e
and other major litigation expensesp special
counsel fee's
then due and owing shall
have been "paid, or reserve for such pax 4 encs has
aside The sum of all been set
Partial or interim dstri'but�on of
net proceeds, as defined. herein, shall not exceed $5 million. .
Part payments "on account of ,i p..e
cial ccunsel;'r zees should,
be made' as 'requested, based upon: the casF
rece i Ved and
12. /9 1
......... ..... ..
i
to
available for such payments, having in mind the priority
k
of payments ,specified in paragraph 40 above. In no event
shall a total of more than $500,000 be paid special. counsel
j until the termination of this litigation when all balances
t
due shall be paid.
44. Proceeds: Extraordinary and final distribution.;
3 Distribution of proceeds not accounted for by paragraph 43
above, shall be made only upon a 90% formal vote at a WAPPO
meeting, especially called to consider extraordinary or
final distribution. Prior to any final distribut on. meet ng.,
the Finance Committee shall take all steps necessary to
arrange for the payment of all WAPPO obligations and the
winding up of its fiscal affairs. Upon the completion of
final distribution of all proceeds of the litigation and the
rendering of its final report by the Finance Committee, WAPPO
and this Compact shall terminate,
45. Execution: This Compact may I)e executed in
counterpart by the parties thereto.
IN WITNESS 'WHEREOF, the parties>; hereto have caused
these presents to be subscribed by their representatives duly
empowered so to do as of the day, month, and year hereinabove
first written by subscribing these presents on the spaces
provided on attached Exhibit "A, " which is hereby made a
part hereof.
68 /
13.