SPECIAL SECTIONl The Legacy of Justice John Paul Stevens

By Alan L. Unikel

Justice Stevens on Antitrust Law A Supremely Memorable Case

hile in my last year at Georgetown University Law WCenter, I had an opportunity to attend the Annual Meeting of the Antitrust Section of the American Bar Association as a student invitee. At the meeting, I heard a lawyer by the name of John Paul Stevens speak on some aspect of antitrust law. Not only did he seem affable and knowledge- able--he was also from . Since I was in the process of interviewing for a job in my hometown of Chicago, I thought I might contact Stevens’ law firm as a possible employer. When I looked up his firm, I was surprised to find it had only eight lawyers, which seemed to be quite small for a lawyer who handled important antitrust cases. As things turned out, and even though I had offers from much larger law firms, I accepted an offer to join Rothschild, Ste- vens, Barry and Myers. I will never forget my first day at the job–it was June 5, 1968, one day after Bobby Kennedy was assas- sinated. I actually became the tenth lawyer at the firm because another new lawyer, Joe Karaganis, had joined the firm a week earlier. Soon Stevens asked me to work with him on a contract/antitrust case he was handling for the irrepressible , owner of the Finley’s Dispute with Sportservice sive concessionaire at all Athletics’ home team. Since I was, and still am, a baseball Many years earlier, in 1950, , baseball games. By the time Charlie Finley fan, it was a very exciting assignment for a the owner of the Athletics, bought the Athletics, the contract had been new lawyer. Little did I know that it was was in financial straits. As had other major extended to 33 years by virtue of additional to become a “Supremely” memorable case. league baseball team owners, Connie Mack loans. In addition, it was amended to That says a lot, because I just completed obtained a loan from a concession operator, include what became know as a “follow- my 42nd year of practicing law, and I have Sportservice, to keep his team afloat. As the-franchise” clause, which provided that tried over 100 cases and argued numerous consideration for the loan, Sportservice had Sportservice would follow the baseball team appeals. extracted a 15 year contract to be the exclu- as its concessionaire if the team moved to

48 SEPTEMBER 2010 SPECIAL SECTIONl The Legacy of Justice John Paul Stevens a new stadium. In 1954, the Athletics were sold and moved to Kansas City. Under the Justice Stevens and the Wayward Lawyer “follow-the-franchise” clause, Sportservice had followed the team as its concessionaire in Kansas City. A clerk remembers the following incident, in which Justice Stevens displays his humanity to a wayward In 1961, Charlie Finley bought the lawyer during oral argument Kansas City Athletics. At the end of the 1967 baseball season, he moved the team Early in the week, an advocate had addressed a robed inquisitor as “Judge,” and so provoked a to Oakland, . On the basis of its follow-the-franchise clause, Sportservice, withering reminder that members of this high bench were “Justices.” At that instant, no one said which was still the concessionaire for the a word. But the scene repeated itself days later. This time Stevens–who had expressed unease Kansas City Athletics, insisted that it was entitled to be the Athletics’ concessionaire at the first exchange as soon as he returned to chambers–spoke up: ‘Excuse me, but if I am not at its new stadium, the Oakland-Alameda mistaken, Article III refers to us as judges.’ County Coliseum. But, the Coliseum already had an exist- I treasure this moment not because it exposes Stevens’s knowledge of the Constitution–his ing contract with another concessionaire, Volume Service Company. Volume Service’s legal acumen is beyond dispute—but rather because of what it says about Stevens as a person. contract said that it would be the conces- Humility, not haughtiness, has marked his career on the Court. The unwarranted rebukes of sionaire at all home games of any major nervous advocates stirred his sympathy, yet did not erase his respect for his peers. league baseball team that played any games in the Coliseum. Volume Service contended that it could be dislodged only by a final –Diane Marie Amann court decision that another concessionaire Professor of Law, University of California Davis had a superior right to provide services. 1988-1989 Term, Clerk to Justice John Paul Stevens Finley sided with Volume Service and the Coliseum. That was not totally surprising, since the Athletics’ share of concession rev- enues would be greater with Volume Service a native of Harvey, , who was trained me know this would be a case I would not than with Sportservice. as an antitrust lawyer. Fred is the kind of forget. At that time, the case was reassigned By that time, Finley had retained John lawyer you never forget. He is larger than for trial to the Honorable Tom C. , Paul Stevens as his lawyer. Stevens’ position life and makes his presence known wherever who had resigned as an Associate Justice of was that Volume Service had a superior right he goes. the Supreme Court of the to to Sportservice to be the Athletics’ conces- The lawsuit was bifurcated into two sec- prevent any appearance of impropriety or sionaire and, in any event, the Sportservice/ tions, the contract issue and the antitrust conflict that could result from the fact that Athletics contract violated federal antitrust claims. Judge Peckham ordered that the his son, Ramsey, had been appointed as U.S. laws as an unreasonable exclusive dealing contract issue would be tried first. There Attorney General. contract and an illegal tying arrange- would then be a hiatus when discovery Justice Clark was asked to help improve ment. He also contended that, by virtue would be conducted on the antitrust coun- the efficiency of the federal court system; of its string of these kinds of agreements, terclaims and a second trial conducted on and he decided to preside over a few federal Sportservice was guilty of monopolization the antitrust claims. court trials to see firsthand what kinds of and attempted monopolization under fed- changes might be needed. So, although I eral antitrust law. A “Supremely” Memorable Trial: Part I did not fully know this at the time, the Sportservice filed suit against Finley in So far, this case may seem interesting, first “big” trial I was to be involved in was federal court in in 1967, but not entirely memorable. Of course, I to be presided over by a former Associate claiming Finley was bound by the 1950 did not know at the time that this would Justice of the Supreme Court, and one of contract. The case was assigned to District be Stevens’ last trial, that in the next few the parties was to be represented by a future Judge Robert Peckham. Finley denied months he would become a judge on the Associate Justice of the Supreme Court. And Sportservice’s claims and counterclaimed United States Court of Appeals for the having Fred Furth as counsel for the other that the contract was invalid under the fed- Seventh Circuit and, in 1975, an Associate side was going to be a show in itself. eral antitrust laws. Interestingly, Sportser- Justice of the Supreme Court of the United The contract case was tried as a non-jury vice was represented by Frederick P. Furth, States. But what happened in June 1970 let trial in August 1970 and took one week. CBA RECORD 49 SPECIAL SECTIONl The Legacy of Justice John Paul Stevens

An Unexpected Call Citations to Reported Decisions on Then came the call I will never forget. It CBA Offers Reduced Dues Twin City Sportservice v. Charles O. was a Saturday morning, and I was home. Stevens called me to let me know that Sena- Option Finley & Company tor Charles Percy had recommended him Members who are currently unemployed or to President Nixon as the next judge to be If you are interested in reading more about the appointed to the United States Court of experiencing financial hardship may apply for Appeals for the Seventh Circuit. I’m sure cases: Twin City Sportservice, Inc. et al. v. Charles reduced dues of $25 (applies to current semi- there was a long pause after he said that. annual billing period; cannot be combined with O. Finley & Company, Inc., 365 F. Supp. 235 (N.D. While I expressed my congratulations, I could already feel my personal loss of being CLE Advantage membership). Request forms and Cal. 1972); Twin City Sportservice, Inc. et al. v. deprived of the opportunity to continue to further details can be found at www.chicagobar. Charles O. Finley & Company, Inc., 512 F.2d 1264 work for, and with, John Paul Stevens. And org or call 312/554-2131. what about the Finley case? What was to (9th Cir. 1975) and Twin City Sportservice, Inc. et happen to that? al. v. Charles O. Finley & Company, Inc., et al., 676 After awhile, I began to realize that Ste- * The antitrust trial was also a non-jury vens would do much good for our country F.2d 1291 (9th Cir. 1982). trial conducted before Justice Clark, in his new role. I also realized that the starting in September 1971 at the old law firm and I would somehow muddle federal courthouse in San Francisco. Justice Clark, Stevens and Furth acquit- through without him. The good news, I The first day of trial was memorable ted themselves nicely, at least from the learned, was that Charlie Finley had agreed because San Francisco was in the midst perspective of a young lawyer. I learned to keep the Sportservice lawsuit at our law of a heat wave, and the first day of trial a lot by being fortunate enough to be an firm. Of course, I was much too young and was the hottest day in the history of San observer of three marvelous lawyers in the inexperienced to be first chair. But I was Francisco. And the courthouse was not inevitable drama of a trial. We expected that asked to stay on the case and one of air conditioned. Nevertheless, Justice Finley would lose the contract claim, and, our partners, Bill Myers, who was going to Clark wore his judicial robes throughout, ultimately, he did. After all, Stevens had take over the case. although he invited the lawyers to take told me from the start that the major battle off their suit jackets--and we took him was to be on the antitrust counterclaims. A “Supremely” Memorable Trial: Part II up on his invitation. Stevens was excited about embarking on the Since this is an article about Justice Stevens, * Bill Myers did an outstanding job in the antitrust discovery and the trial. I won’t go into all the details of the antitrust case except to point out: antitrust discovery phase and the antitrust trial. I learned a lot from him, lessons that I have used often as a trial lawyer. * Finley (after two appeals and a third trial) ultimately won certain antitrust claims, essentially those finding that Sportservice’s contract with the Athletics Thank You to the National Co-Chairs was an unreasonable restraint of trade of the UB Law 2009-2010 Annual Fund under Section 1 of the Sherman Act and that Sportservice was guilty of attempted monopolization under Section 2 of the Sherman Act. As a result, Sportservice never became the concessionaire for the Oakland Athletics. Paul Korniczky ’86 Barbara Schifeling ’84 Brent Wilson ’76 * Even though Fred Furth lost this case, he Partner Partner Partner Leydig, Voit & Mayer Ltd. Damon Morey LLP Elarbee, Thompson, went on to many successes. In fact, he Chicago Buffalo Sapp & Wilson LLP made enough money to buy a winery in Atlanta Special thanks to our National Co-Chairs, and to our Sonoma County, CA. So, if you are ever dedicated alumni and friends, for helping us reach in the mood for a nice Chardonnay, try a another milestone Annual Fund year, with over $1.1 million in gifts. THANK YOU! bottle of Chalk Hill–and look for Fred’s www.law.buffalo.edu name on the label.

50 SEPTEMBER 2010 SPECIAL SECTIONl The Legacy of Justice John Paul Stevens

Veeck if he wanted to join us for lunch. Specific MCLE Questions? Veeck agreed. I was asked to join them. In a few minutes, we were all (not Justice The CBA Illinois MCLE Board Clark, of course) sitting around a table at is your a local pub near the courthouse, eating, local spot www.mcleboard.org for MCLE drinking, and listening to Bill Veeck regale 200 W. Madison St., Suite 3420 us with stories about his various experiences Chicago, IL 60606 in baseball, minor leagues included. For Register for a Seminar Today 312/924-2420 a young lawyer from Chicago in his first big case, this was, indeed, a “Supremely” 312/554-2056 Illinois Commission on Professionalism memorable experience, one of a lifetime. www.chicagobar.org www.ilsccp.org 180 N. Stetson, Suite 1950 Alan L. Unikel is a partner at the Chicago office of Seyfarth Shaw LLP. Chicago, IL 60601 312/363-6210

Shouldn’t We Be in Chicago? The Chicago Bar Association There is one more aspect of the antitrust trial I want to mention because of its Chi- 2010 Golf Outing cago connection. We asked Justice Clark Monday, September 27, 2010 to schedule an unusual Saturday session Ridgemoor Country Club because our “star” witness was only available 6601 W. Gunnison St., Chicago that day. Justice Clark graciously agreed to The CBA’s 87th Annual Golf Outing is a terrific way to get New hold court on Saturday after the second involved with the CBA while enjoying an afternoon on the links Location! week of trial to accommodate our witness, (instead of behind your desk!). Special activities include a $1000 who was none other than Bill Veeck, the putting contest and a hole-in-one contest. Lower former owner of the (he Price reacquired the team in 1975). The reason The fee includes 18 holes, golf cart, locker, lunch (sandwich and beverage), dinner, and door prizes. Lunch will begin at 12:00 p.m., Veeck was a witness at the trial was that he followed by a 1:00 p.m. shot gun start. had previously been with two teams, the St. Louis Browns and the , which had borrowed money from Sportservice in exchange for long-term concession contracts. Ultimately, Clark (and the federal appellate court) found that all these contracts combined to Golf & Dinner Only - $195.00 help establish attempted monopolization Golf Only - $170.00 (no dinner) by Sportservice in violation of Section 2 of Dinner Only - $25.00 (invite a friend!) the Sherman Act. So, here we were in a courtroom in San Francisco in a trial being presided over by Justice Clark. The “Chicago connection” included Bill Veeck (the former Chicago White Sox owner), Fred Furth (the Harvey, Illinois native) and Bill Myers and me (the Chicago lawyers). Veeck’s testimony went smoothly and helped our case immensely. We finished about noon. As we were get- For more information, call Angie Cruz at 312-554-2132 or ting ready to leave the courtroom, Myers [email protected]. A fax/mail form is available at www.chicagobar.org. approached Furth and suggested they ask

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