A Supremely Memorable Case

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 Chicago. 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 Charlie Finley, owner of the Oakland Athletics baseball 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, Connie Mack, baseball games. By the time Charlie Finley fan, it was a very exciting assignment for a the owner of the Philadelphia 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, California. 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, Illinois, 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. Clark, 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 United States 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 San Francisco 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.

Load more