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HomeMy WebLinkAboutRESOLUTIONS - 01011968 - 68-912 1 RESOLUTION NO. 68/912., 2 3 PREAMBLE Contra Costa"County 4 1 • Sturm Drainage District , hereafter 5 called 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. , 10 Kaiser Steel Corporation,, United States Industries, Martin- 11 Marietta Corporation, United Concrete Pipe Corporation, 12 and American Pipe and Construction Co. 13 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 can a lump sum basis, the pro- 21 ceeds being distributed amongst the various plaintiffs 22 pursuant to an agreement, all of which was duly approved 23 and ratified by entity ano 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 meet by and between the plaintiffs concerning the conduct 28 of the litigation still remaining against, and the 29 allocation among plaintiffs of the expected recovery from 30 defendant American This agreement known to plaintiffs , 31 as the Western Associated. Pipe Plaintiffs Organization 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 1963. 11 5. On July 14, 1967, 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" . 2'6 1 7. Such Memorandum of Understanding provides 27 fCr payment by American to all plaintiffs of the lump 28 sum amount of eight million five hundred thousand 29 dollars ($8;500,000) oven a period of seven years 30 with interest. 31 f 2. NOW BE IT RESOLVED THAT 2 A. 3 The MEMORANDUM OF UNDERSTANDING FOR SETTLEMENT 4 OF WEST COAST PIPE CASES BETWEEN ALL PLAINTIFFS AND 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 "III".. 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 ?I pgemb,er , 19U. 25 26 27 28 29 Attest: 34 31 1i E 1 1? MEMORANDUM OF UNME.:�,STA NYDING FOR SETTLE OF WEST COAST PIPE f 2 f CASES BEIV EN ALL PLAINTIFFS AND AMERICAN PIPE AND CONSTRUCTION I CO U'AI ' 4 5 # Parties: !! The parties to this memorandum of under`standin,g are the 4� 7 Western Association of Pipe Plaintiffs ' Organization, hereafter 8 if referred to as "WAPPO" . and American Pipe and Construction Company, hereafter referred to as "American." 10 Amount to be Paid: Zl . American agrees to pay to the fiscal agent designated by I! 12 ' WAPPO the sum of' eight million five hundred thousand dollars 13 !' ($8,540,000) payable as follows, to wit: 1 The sum of one million two hundred fifteen thousand two 15 �f hundred dollars ($1,215,204) on or before January 1 1969, to s6 ( the fiscal agent designated by WAPPO which said sum shall be 17 i4 placed in either an interest-bearing savings account or in the f� - I8I purchase of a certificate of deposit at the option of WAPPO and 19 which is to be returned to American in the event of a failure a ! to consummate this settlement within nine months of the date � 21 rf hereof. Said fiscal agent shall not distribute the sum of one 22 u�illion two hundred fifteen thousand two hundred dollars 23 '' ($1,2'.5 ,200) to -the plaintiffs until the fiscal agent has received; 4 ; certified copies of the orders of dismissal of all WAPPO Pipe Casses 25 Ax<.{tirican further agrees on or before January 1, 1959 to 26 delivc_r to said fiscal agent its promissory note in the sum of 27 # seven .zillion two hundred ei h,-four thousand ei-ht hang;-d 8 1 dolla-. s ($7,284,800) payable to the order of said fiscal. agent 4 29 at address in installments as shown on Exhibit "A" bearing! . O ; interest at the rate of five percent (5%) :per annurc. on the :.i declin:.ac, balances of said note, said interest to be pay:,ble at. 5 .�. 8 / 91� EXHIBIT I,• p. 1 of 5 __ t, si is the samne t" e principal payments are required to be made here- 2 j llzdei-. Said nate shall Further provide that if any, interest is not paid as it becomes die, it shall. be added to the principa3 aad bear a. like- rate or interest. Said note shall further iE provide that if any payment of either principal or interest is not made as it becomes due, the entire balance of said note 1� 7able. rem",..ning .unpaid shah. become and be immediately due and pay Said note shall also reserve to American the right to make pay i t meets on account cif principal or interest in advance of their # 10 it die date without penalty. Said note shall further provide t i' 11 that in the event an action is coYumenced to collect said note 12* or any part thereof, there shall be added: to the judgment for , any principal or interest found by the court to be due: such . f - , 11 additional sum by way' orf attorneys' fees as to the court having 15 �i jurisdiction of said cause shall seem reasonable, said attorneys ' 16 fees to be due on the filing of a complaint. _ .. a.. 17 7a -18 ly— }i American by December 16, 198 shall provide WAppO with copies -- !; 04 any aria all agreaments or amendments thereto with creditors of Ar::,e:~ica.n which authorizes the performance of this r < o r..a.T.oZzidum of uadersta:ndinc, and shall be in form and substance ; 1 24 sat,is`.=ac try to counsel for WAPPO. 25 i1 . i r America-a agrees that it will provide such assistance in ! i; verisf-in, 'pl-aintiffs' transact ions as WAPIDO shall from time ,to time a _Cu, re American and its attorneys agree that the appeal of u Lax day: r against the City. of San Diego shall be dist sled : .0 is 'y. , :oar ecamber 16, 1968,, and to c;rithdraw .r}potions by Am, r .ca.n � `S ._Z7t--c:_.._a 4he validity. o-J" MMPTPV', selection of specia:l ca,iasel 30 2by .i .. tt' of 4rc.3ifoiLica, oaf`.; :v.Cc^a33� a} Se't LG.3T'�L CTit1 _.4 V � IT � 5 EXH IT I , -1) . f � 2 0f 5 . r t t, 1 City and County of Sin Francisco, and all other pending motions 2 and challenges in the Western Pipe Cases. s American and its attorneys agree to execute a covenant in a farms satisfactory to WAP-20 covenanting that American and itz o N attorneys shall not further attack in any manner the validity. G i, of CSA Pct and the selection of special couniel by the State of 1 7California. i 8 Each plaintiff that is a signatory to WAPPO shall release 4� 9 its claim against American, and special counsel for WA?xO 10 ljshall stipulate to dismissal with prejudice and without costs i 11 of its action against American. 12 �� Protective Order: 13 r No person attending the meeting between counsel on November 14 20 and 21, 1968 concerning the subject matter of this memorandum to -of understanding shall divulge the nature thereof nor of any <' of the subjects discussed thereat to any person whose 17 ; responsibilities or duties to one or more of the parties herein do not require that he be consulted concerning or informed of 19 said discussions in order for one or more of said parties to i� 20 take action with respect to any of the subjects d-iscussed on j - 'l said dates, and no officer, employee or agent of .any of the 22 } parties hereto shall disclose any of the aforesaid subjects to 3 # any other person whose responsibilities or duties to one or ' 2r. ;I more of .the parties do not require such other person to have F knoa edge of such subjects in order for one or more of said parties to take -action with respect thereto, until: Decamiber 2 , 1968, or one day following dismissal o : 23 'j Jury In the trial of Washington Public Power System Supply V. American, whsch_ever is later, w , C Cons:.',"�I-nation o2, Settlement stir^+� settlement v..`r+ �r. 1.:' s. .�,.� "„ The sti �;.tlement he..ea.n ..efarrea �.o resulted r.rom 6isc.ussions i 'be%i:daen counsel for plaint i�"-fs and American i.n p::oce •xin1 s i iz EXHIBIT 1 -3- t�. 3 of s68 L i e_`-oi:a :.he Honorable M-Urt-in Peace concluded on November 21, 196>8 N S-an D;:ego, California. 3 Co-unsel for the parties hereto eC.ch agree to recti `rmend in good faith, without qualification, and with full measure of sub;Dort, the settlement set forth herein to their respective 6 client or clients , it being understood that ratification by 7 t such clients is necessary. in consideration of the payment of the settlement amount rE ! et. forth in this memorandum of understan.dins,, plaintiffs 10 shall deliver to American duly executed releases and stipulations i 11 ,; to dismiss as -above provided., together with duly adopted and I 1.2 ` certif:Lcd resolutions or equivalent documents ratifying and confirjnin�z this settlement. ?t f American a gees to furnish WAPPO with certified copes of o ! �" the reSo.LLtioil of Arne---can P .p4 and* Cons vruction Company l6 i1 bc+ rd of di-rectors, and cert:'Lf:.ed co,-,--es of the resolution of it 3W:ii.31". s , Inc. (the l .ataeCGincernir<< .ie City of San i8ri DiG•x,-t�3 .Litiation} 43L''-i",o3rizi:07 Aivr3Ga2rs 03.fiC8rS and attorneys = to ialke this settlement. Gv T h.e documents reg erred to shall be in such form as shall be k , { agree"-' to between !NTA?PO and Ar-ter ican. j V-Nc—c,,t- on. of this MMemoraneum: � �S u this memorandum of ,understanding may -be executed -n any 2-'== nu giber of counterparts "'with like effect as if all signatures 2 were oh the ori;ginc.l. DATED- November 21, 1968. I 4. 23 ;29 _„� ti �� 'r„ ter"' `,,.,.�/ -•.-." r, y �. ( +.�rx✓ ,,,A.�._. r„/`w.._.,r^� 4r1 . L1. �e .�S on ...1 ,.,,+,•"/`. Go,:Ji-e W..,-, r r 3 �.n .. ... . . ....... i as rc .i a PA`1'KIE= SCiIEDULE (rOi 11CLUDING iNTLEREST) J anti.ary .L, 19©9 $1,215, 200 April 1, 19; 9 505,800 July , 1969 505,800 October 1, 1969 505,800 Ja ,uary 1, 1970 t 505,800 A,r:L! 1, 1970 505,800 July 1, 1970 505,800 January 1, 1971 472 ,300 July 1, 1971 472 ,300 ,ian- ary 1, 1972 472 ,300 July 1, 1972 472 300 Ja nuaL y ?, 1973 472 ,300 July 1, 1973 472 ,300 January 1, 1974 472 ,300 July 1, 1974 472 ,300 January 1, 1975 471.,600 Total $8,503,000 l: B)CrIB^rT "All i _ e EXHIBIT S P. 5 of 5 ............................. ................ RELEASE OF AMERICAN PIPE & CONSTRUCTION CO 2 3 1. This release is executed in favor of and for 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 Contra Costa County Storm Drainage district 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 construction of pipelines 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 manhole pipe and fittings manufactured, sold by or supplied 28 by American (hereinafter designated "pipe products" ) . 29 4. ' he period of time covered by this release is 34 prior to January 1, 1959, but includes --,,nevertheless any 31 transactions between American and Releasor either directly 1. '68/ 912 EXH)B 17 i 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 ($1.00) 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, actions, (uses 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 had, 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 right be asserted under the Clayton Act ( 15 USC, H 15 and 15 26), or under any other state or federal antitrust trade 16 regulation or similar law giving rights to relief under 17 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, 20 reading: 21 "3.542. (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 Releaser are fully authorized 27 so t4 do and Releasor makes such warranty In full knowledge 28 that Releasee has no independent knowledge of the authority 29 or lack thereon of such persons but is relying upon 30 Releaser's warranty. 31 ' 2. 68 / 912 ...................................................................................I...1.''..'','', 11 ........................................................................................................................... ............................................................................................... ...................................... 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 1968 7 8 Contra Costa County Storm _'_m D J�e District 9 --(Pull name or asor X 011 10 By Alfred M. Dia 11 . Office Chairman of Boar of Supervisors 12 Attesting Witness-1-2&" Barbara Kemp, Deouty clerk 13 Office=rz W- T- -PAASCH. County Clerk 14 Exofficio Clerk of the Board of Supervisors 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 3. 68 / 912 ........... ............................. ............... _.._._ ......... ......... ......... ......... ......... ......... ....... .. __ ............ ......... ......... ............... ..... ....... ........ ......... ......... ......... ......... ......... ......... _ _.. ......... ...._... ......... .......... ....................................... WESTM'' ASSOCIATED PIPE PLAINTIFFS>' COMPACT 1. This Agreement is made and entered into this loth day of July , 19671 by and between the parties set forth on attached Exhibit "A. " Back&round to and Pun2ose of Compact 2. The parties have each for some time asserted against defendant American Pipe and Construction Co�pany (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 "Amvit") and certain of the parties are asserting complaints and causes of action of the same nature relating to in-place pipe rehabilitation against Pipe Linings, 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, Amvt and Pipe Linings, Inc, 5. The parties have been and are currently required by the Court 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 activities through a single counsel and an attorneys ' steering committee 68 / 9 ... ......................................................... . .......................................... ..................... 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 t 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, to following: (a) Create an organization named and hereinafter called, "Western Asso- ciat.ed 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) Create an Executive Committee of WAPPO to oversee the day-to-day conduct of the Western Pipe Case's by special counsel; (c) Arrange for the engagement of quali- fied special counsel to conduct ,the Western Pipe Cases on a 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 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 parties on a pro rata basis in accord with the verified dollar magnitude of each party's claim; and 68 / 912 2. NOW, THEREFORE', in consideration of the foregoing promises, recitals, objectives and purposes, and for other valuable consideration, the parties hereto mutually agree, as fellows WAPPO: Organizations Membership, Powers and Duties, Voting, Procedures, Activiti.ess Miscellaneous 8, There is hereby created the Western Associated Pipe Plaintiffs' Organization (WAPPO)p 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 formal transaction basis vote or this Compact elsewhere so requires, representatives shall each vote on the matter being considered, each representative to have only one vdte regardless of the number of parties he represents. This shall be known as the "informal voting basis." 3. 1 (b) Whenever a representative requests a formal (transaction basis) vote or this Compact so requires, the mutter in question shell 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 Rank of America National Trust and Savings Association in San 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. M Unless otherwise .specified herein, an informal vote shall 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 or by majority WAPPO vote. Such tasks are to be distributed as equitably as possible. t 1.2, A quorum for 'WAPPO meetings shall be 51% of the dollar value of the 8-year period American ver ft cation statements, 13. The designated WAPPO representatives of the parties are set forth on Exhibit "A" opposite the name of the partyrepresented. 274. EXECUTIVE COMM I TEE: Organizations Membership, Powers and Dutie's,. Votn 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) St'&t@ Of California (a) Los Angeles County Flood Control District (d) City of San Diego' (e) tither California plaintiff Such representative may be removed by either the naming panty or by a 909 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 represents» tive, in which case a 51% Formal WAPPO vote shall designate the suceeeding naming party. The members of the Executive Committee and their alternates are set forth on attached Exhibit "B. " An alternate may vete 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 member.; 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 vote) 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 consideration. ; 5• ......;;;;.. 19. Any WAPPO membermay 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. ause .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-qday administration of the litigation... Execu- tive Committee shall report on its activity at WAPPO meetings called as the litigation situation renders desirable . Where still feasible, WAPPO may review and reverse Executive Committee decisions by majority vote. 21. Representatives of the Executive Committee may attend such of- special counsel's meetings with repre- sentative .-of epre-sent,ative ;cif defendants as said committee chooses. , 22. 'SIoti.ng at Executive Committee 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. SPECIA COUNSEL: Engagement of - Basic Teras; Powers and Duties. 24. The provi,sions,o i this ,Compact Zh:i .i control- over the provisions ofthe ,contract of en agenent of special counsel' and that contract shall so ackno.wlsd. e ; 6. 25. The Executive Committee shall contract: behalf of WAPPO for the engagement of special counsel sisten.t with the provisions of this Compact. 26. Special counsel, shall be entitled to be reim- bursed .for expenses incurred in 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 prier 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-packet expenses and 30of amounts recovered from American, American Vitrified, and Pipe Linings, Inc. in concluding all the litigation against said defendants, after first deducting the out-of-pocket expenses of WAPPO from such recovery, These shall include all joint WAPPO expenses but ;not those of the individual members. Any awards of attorneys ' fees or costs shall be held and distributed 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 s motion to add in the litigation have been terminated. 29.. Subject to this 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, 7. 68 / 912 and authority to conduct the litigation to a final cart- elusion on behalf 'of all WAPPO members . Special counsel, with majority Executive Committee approval, may -determine- the ay -determinethe 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. FINANCE ConIMITTEE Organization, Membership, Pagers . and Duties. .' 31. There is hereby created the Finance Com,mi'ttee- Of WAPPO composed of two individuals, Hobert M. Desky, Esq, and Jahn 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, administrators of the Association of Pipe Antitrust Plaintiffs (APAP) , who arranged for and handled group financing of the litigation prior to about July 1, 1957. 33. The Finance Committee shall arrange for and handle the funding of future litigation expenses and the- payment hepayment thereof. Funds for the payment of litigation expenses will be obtained from the parties comprising WAPPO by means of pro ratan assessment based upon the American year verification statements . Such assessments shall be f Proposed by the' Finance Committee from time to time in such amounts as may be necessary to provide a' f and fop the payment. Of anticipated expenses •of the litigation and shall be approved by the members of WAPPO. . Each member of WAPPO ' hereby agrees to pay approved assessments pro�ptly upon- demand. pon.demand. 68/ 91- 2 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 WAPP© 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,. 6. Except as hereinafter tee° 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 plaintiff's involved shall also be secured. With respect to any case, however, which is in the course of trial. ( .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 � f ...... ........ .. .. ... .... .. i... ........ ..... all pl,alntirf;', a ainst one or, more defendants in the Western States Pipe Cases must receive the unanimous re,- commendation of all members of the Executive Cola mi'ttee'. 37. It is expressly agreed that noart • p y-.sha11 settle an, cause Of action referred to herein in which it is a plaintiff except in accordance vrth 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 can behalf of all attorneys of record f6r WAPPO members that they, and each of then, will, in good' faith, reconnend approval of such settlement to their public agencies ar superiors that they represent. 38. Notwithstanding any other provision: of this Compact, the governing bodies of the parties hereto expressly reserve the right to approve g 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-day conduct of the litigation Distribution of Proceeds of Settlement and Judgments Obta-ined In the Litig-: tion. 39. All monies recovered and received from 'de- fendants American, Amvit and Pipe Linings, Inc , as the pro- ceeds of either a settlement negotiated and agreed upon or a Judgment rendered in the litigatinn shall be transferred Immediately Upon receipt to the order of the Finance Com- mittee for deposit in a State or national bank designated by said Finance Camnittee, and shall be distributed as pro- vided hereinafter. /9 .................................................................. .......................................... ..... .. ......... .... . . 40. Proceeds: Priority, of Distribution. All proceeds received by the Finance Committee shall be dis- bursed according to the following„priorities: (a) Pees 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. (d) Payment to 'special counsel of the fees 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 Linin s, 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 .ths 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, 1954 through August 31, 1954, inclusive, and September 1, 1962 through December 31, 1963, inclusive, the aggregate of 811 such periods being referred to herein as ' the 13-year period." Additionally, pipe rehabilitation transactions of ll, ' 8 9. the City and Count; of San Francisca to a maximum of $3 million, and of the City of San Diego to a maximum of $1.25 million, If said: entities or either of them are parties to this Compact, will share . in the distribution of the net proceeds that are the subject of this paragraph on the basis of 50% of the amounts of such transactions as verified" by American or Pipe Linings, Inc . within the said 13-year period. 42 . Proceeds: Distribution of recoveries from Amvit All net proceeds, as defined herein, of the liti- gation received from defendant Amvit', whether by settlement or judgment, sha11 be distributed exclusively to the party or parties who have specifically asserted complaints and causes of action against said deenc3nt, 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 participating in this distribution. 43. Proceeds. Partial distribution. No partial or interim distribution of proceeds of any settlement or judgment or any combination thereof shall be made except by formal 7 o 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.l.it gatidn expenses and until after special counsel fees and other major litigation expenses then due and owing shall have been paid, or reserve for such payments has been set aside. The sum of. all partial or interimdistribution of ' net proceeds, as >defined herein, stall not exceed $� million. Part payments on account of special counsels ' fees should be made as requested, based upon the cash received and .�r available for such payments, having in mind the 'priority of payments specified in paragraph 44 above. In no event shall a total of more than =$500,000 be paid 'special- 'counsel untilthe termination of this litigation when all balances clue shall be paid. 44. Proceeds:eeds: Extraordinar and final dis ron. Distribution of Proceeds not accounted for by paragraph 43 above, shall be made only upon a 90% formal vote at a WAPP4 meeting, especially called to consider extraordinary or final distribution, Prior to any final distribution meeting, , the Finance' Committee shall take all steps necessary to arrange for the payment of all WAPPC obligations and the winding up of its fiscal affairs. Upon the completion of finial distribution of all proceeds of the litigation and the rendering of its final report by the Finance Committee, WAPPt7 and this Compact shall terminate. } 45. Execution: This Compact may be 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. 13.