Donald G. Kempf Law

Representative Clients and Cases (General Litigation):
Tried a wide variety of business cases (including antitrust, securities law, patent, employment, distribution and commercial disputes) before trial judges, juries, administrative agencies and appellate courts throughout the United States. Major cases have included:

1. In Re Linerboard Antitrust Litigation. (MDL No. 1261). Represented Weyerhaeuser, Gaylord Container and Packaging Corporation of America in class actions alleging price fixing in the linerboard industry.

2. AlliedSignal Age Discrimination Litigation. Represented AlliedSignal in age discrimination litigation involving AlliedSignal's aerospace operations in Phoenix. Matter included several EEOC investigations and both EEOC and private actions in federal and state courts by more than 200 plaintiffs. All cases settled on favorable terms.

3. Dow Exxon Patent Litigation. Represented Dow Chemical in a series of suits over various Dow and Exxon patents related to plastics produced using new metallocene catalyst technology, all of which were resolved by a June 15, 1999 worldwide settlement. Cases included:

a. Exxon Corp. v. Dow Chemical Co., 24 F. Supp. 2d 688 (E.D. Tex. 1998). Exxon alleged that Dow's production process at new polyethylene plants infringed Exxon's '761 patent. Bench trial held August 10 21, 1998. Ruling in favor of Dow.

b. Dow Chemical Co v. Exxon Corp. Civ. Action No. MO98CA107 (W.D. Tex.). Exxon sought a declaratory judgment that certain polyethylene produced by Exxon did not infringe Dow's '800 patent and that the patent was invalid and unenforceable. Dow's counterclaim alleged infringement. Dow's motion to realign granted.

c. Dow Chemical Co. v. Exxon Corp. Civ. Action No. 94 CV-572 (D. Del.). Dow sought a declaratory judgment that its plastic for coating wire and cable did not infringe Exxon's '783 patent and that the patent was invalid and unenforceable and charged Exxon with tortious interference by telling Dow's customers otherwise. During discovery, Exxon filed a "Statement of Nonliability" giving Dow and its customers full immunity from suit for infringement. The District Court then granted Exxon's motion to dismiss Dow's tort claim. The Federal Circuit reversed. 139 F.3d 1470 (Fed. Cir. 1998), cert. denied, ___ U.S. ___ (1999).

d. Dow Chemical Co. v. Exxon Corp. Civ. Action No. 96 160 (D. Del.). After the Board of Patent Appeals and Interferences, in an interference proceeding between Dow and Exxon, declared Dow's '236 patent invalid on procedural grounds, Dow challenged the ruling. The District Court reversed, the Federal Circuit affirmed and the Supreme Court denied cert., ___ U.S. ___ (1999).

e. Dow Chemical Co. v. Exxon Corp. Civ. Action No. 98 433 (D. Del.). Dow alleged that certain polyethylene produced by Exxon infringed Dow's '638 patent.

f. Dow Chemical Co. v. Univation Technologies Civ. Action No. 98 434 (D. Del.). Dow alleged that certain polyethylene produced by Univation (a joint venture of Exxon and Union Carbide) infringed Dow's '800 patent.

g. Dow Chemical Co. v. Exxon Corp. Civ. Action No. 96-584 (D. Del.). Under-seal action involving certain intellectual property rights relating to the production of polyethylene using metallocene catalysts. Exxon's motion to dismiss granted.

4. Clear Communications, Ltd. v. Telecom Corp. of New Zealand, Ltd. CP.19/96 (High Ct. of New Zealand). Represented Telecom New Zealand in connection with antitrust challenge by Clear to Telecom's proposed entry into pay TV field. Hearing held in Wellington, N.Z. December 2 6, 1996. Judgment entered dismissing Clear's complaint August 1, 1997.

5. Time Inc. v. Petersen Publishing Co. 97 Civ. 5879 (HB) (S.D.N.Y.). Represented Petersen in dispute over intellectual property rights to magazine title "Teen People" Petersen publishes "Teen" and Time publishes "People." Jury trial held March 9-20, 1998. Jury found for Time. Second Circuit affirmed. 173 F.3d 113 (2d Cir. 1999).

6. Minigrip Inc. v. Recpro Co. Ltd. 168 F.3d 1322 (Fed. Cir. 1998). Represented Minigrip (a subsidiary of Illinois Tool Works) in case involving ITW's Zip Pak patents. District Court ruling in favor of Minigrip affirmed on appeal.

7. The TJX Companies, Inc. v. Waban, Inc. Civil Action No. 97-01854F (Mass. Sup. Ct.). Represented TJX in suit challenging lease obligation provision in proposed spinoff by Waban of its BJ's division that could have affected TJX adversely. Settled favorably day after suit filed.

8. Biscaldi Luigi Import Export, s.r.l. v. Snapple Beverage Corp. and The Quaker Oats Company Civil Action No. 96 CV 0825 (JS) (E.D.N.Y.) and Snapple Hellas, S.A. Civil Action No. 96 CIV 1371 (LK) (S.D.N.Y.). Represented Quaker and Snapple in separate actions alleging wrongful termination of Snapple distributorships in Italy and Greece. Motion to transfer Biscaldi case to S.D.N.Y. granted. Cases settled on favorable terms immediately before trial.

9. Black & Decker, Inc. v. GSL Engineering Ltd., et al. Civil Action No. 95-1250-A(E.D. Va.). Represented defendants in case alleging infringement of Black & Decker's "SnakeLight" flexible flashlight trade dress. Jury trial held May 28-June 5, 1996. Jury found no infringement. Before trial, and before Kirkland entered case, judge ruled that sale of certain flashlights before patent issued constituted infringement as matter of law. Settled while appeal pending in Federal Circuit.

10. Kenamerican Resources, Inc., et al., v International Union, United Mine Workers of America, 99 F.3d 1161 (D.C. Cir. 1996). Represented several coal companies challenging UMWA's efforts to unionize certain mines through interpretation and extension of bargaining agreement. District Court granted summary judgment for UMWA. D.C. Circuit reversed and entered favorable final judgment for coal companies.

11. The B. F. Goodrich Company v. AlliedSignal Inc., 73 F.3d 1577 (Fed. Cir. 1996). Represented AlliedSignal in case in which Goodrich alleged that AlliedSignal infringed Goodrich aircraft-brake patents, causing Goodrich damages (trebled) of over $1 billion. Trial held from October 4 to October 26, 1993. District Court held patents invalid on obviousness and on-sale grounds. Federal Circuit affirmed on obviousness grounds.

12. Lipco Partners, L.P. v. Mattel, Inc. 94 CIV. 1709 (RO) (S.D.N.Y.). Represented Lipco in case alleging that statements by Mattel in public offering materials regarding the payment of interest on bonds violated federal securities laws. District Court granted motion to dismiss. Settled on favorable terms during 1995 while on appeal to Second Circuit.

13. Ceiling & Interior Systems Supply, Inc. v. USG Interiors, Inc. , 878 F. Supp. 1389 (W.D. Wa. 1993), aff'd, 37 F.3d 1504 (9th Cir. 1994). Represented USG in action by terminated distributor alleging violations of federal and state antitrust, contract and tort laws. Motion to dismiss granted in part; motion for partial summary judgment granted. Ninth Circuit affirmed. Settled on favorable terms during 1995.

14. Rivendell Forest Products, Ltd. v. Canadian Forest Products, Ltd., et al. Civil Action No. 91-M-1231 (D. Co. 1991). Represented Weyerhaeuser Canada in class action against 15 producers of spf Canadian softwood lumber alleging price fixing conspiracy to charge "phantom" freight rather than actual freight for shipments to U.S. wholesale purchasers. Motion to dismiss on comity grounds granted. Settled on favorable terms during 1994 while appeal pending.

15. Fasco Industries, Inc. v. Consolidated Industries Corporation Case No. 93 C 2280 (N.D. Ill. 1993) and Consolidated Industries Corporation v. Fasco Industries, Inc. Case No. 4:93 CV 0020 AS (N.D. Ind. 1993). Represented Consolidated in litigation relating to faulty blower assemblies manufactured for Consolidated by Fasco. After Consolidated's motion to transfer Fasco's Illinois case (first-filed) to Indiana was granted, case settled on terms favorable to Consolidated during 1994.

16. Kohler Co. v. Eljer Industries, Inc. Civil Action No. 93-C-0923 (E.D. Wis. 1993). Represented Kohler in patent infringement and trade dress case against Eljer for copying Kohler's plumbing designs, colors, manuals, etc. Complaint filed April 27, 1993. Case settled on terms favorable to Kohler November 10, 1993.

17. Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209 (1993). Represented B&W in connection with Robinson-Patman Act price-discrimination claim against it by another cigarette manufacturer (Liggett). District Court's JNOV dismissal of a $150 million treble-damage jury verdict against B&W was affirmed by Fourth Circuit and Supreme Court.

18. Hirsch v. CA Holdings Corporation CA No. 12692 (Del. Ch. 1992). Represented Kohlberg & Co. in breach of contract and fiduciary duties case by minority shareholders arising from LBO and subsequent management changes and financial restructuring at Welbilt Corporation. Case dismissed with prejudice during 1993 with no payment to plaintiffs.

19. U.M.C.O. International Corp. v. Whirlpool Corporation Case No. 85-3466-CIV-WMH (S.D. Fl. 1985). Represented Whirlpool in action by terminated distributor to Puerto Rico and South America alleging violations of Puerto Rican Dealers' Act and antitrust laws. Partial summary judgment granted. 748 F. Supp. 1557 (S.D. Fla. 1990). Jury trial held in Miami on remaining claims from December 7, 1992 to January 12, 1993. Case settled on terms favorable to Whirlpool while jury was deliberating (settlement amount was $1 million less than jury subsequently awarded).

20. Navistar International: Wisconsin Steel Litigation, 930 F.2d 1275 (7th Cir. 1991). Represented Navistar in three consolidated lawsuits challenging the 1977 sale by International Harvester (now Navistar) of its Wisconsin Steel operations to Envirodyne. Secured disqualification of bankruptcy judge and opposing law firm on grounds of unethical conduct. 48 Bankr. 753 (N.D. Ill. 1985) (Grady, J.). One case settled in mid 1988 on terms favorable to Navistar. Other two cases tried from May 12, 1988 to July 14, 1988. On November 16, 1988, court ruled for Navistar in $1 billion fraud and RICO case and issued split decision in $150 million ERISA case. Ruling in RICO case affirmed by Seventh Circuit. ERISA case subsequently settled for about one third of amount claimed.

21. DeBruyne v. Equitable Life Assurance Society, 920 F.2d 457 (7th Cir. 1990). Represented Equitable in class action seeking $70 million under ERISA, securities and other laws for October, 1987 decline in value of pension fund managed by Equitable. Summary judgment granted. 720 F. Supp. 1342 (N.D. Ill. 1989) (Bua, J.). Seventh Circuit affirmed.

22. Oakland Raiders, Ltd. v. National Football League, 791 F.2d 1356 (9th Cir. 1986). In this bifurcated case, a trial on damages was held in Los Angeles from March 14 to April 13, 1983 before the same jury that, a year earlier, had ruled that the NFL's rule that kept the Raiders from moving from Oakland to Los Angeles violated the antitrust laws. The jury awarded the Raiders approximately $34.6 million in treble damages. Brought into the case as special trial counsel at the damages trial to develop defense focusing on offsetting benefits the Raiders had received from the challenged NFL rule. The trial judge (Pregerson, J.) excluded much of that evidence, and the Ninth Circuit reversed on the grounds that this was error.

23. Ambrit, Inc. v. Kraft, Inc. No. 82 517 Civ T 10 (M.D. Fl. 1982). Represented Kraft in trademark action alleging that Kraft's "Polar B'ar" ice cream bar infringed the trade dress and trademarks of Ambrit's "Klondike" ice cream bar. Retained for damage trial following adverse ruling in liability trial at which client was represented by another firm. Case settled during 1988 on favorable terms.

24. Playboy Enterprises, Inc.: Atlantis Casino Litigation. Represented Playboy in three related litigation and bankruptcy proceedings arising from the financial difficulties of the Atlantis Casino in Atlantic City, New Jersey. Playboy sold its former 50 percent interest in the casino for a note that went in default. Case settled during 1988 on terms favorable to Playboy.

25. International Paper Co. v. Arkla, Inc. No. CV86-3383 (W.D. La.). Represented International Paper in its prosecution and favorable 1987 settlement of an antitrust suit against a natural gas pipeline company.

26. Marshall Field & Co.: Age Discrimination Litigation. Represented Field's in major age discrimination class action litigation by private plaintiffs and related government suit by EEOC. Following discovery, cases settled during 1985 on terms favorable to Field's. Thereafter brought suit on behalf of Field's against its D&O insurer to recover portion of settlement. Settled during 1986 for substantial recovery.

27. Dart & Kraft: Thatcher Glass Bankruptcy. Represented Dart & Kraft in Chapter 11 reorganization of Thatcher Glass, a former D&K subsidiary divested in LBO. Replaced other law firm, pressed certain positions in litigation and, thereafter, negotiated settlement and reorganization plan favorable to D&K.

28. Rand McNally & Co. v. Fleet Management Systems, Inc. Represented Rand McNally in copyright infringement action with antitrust, defamation and tort counterclaims. Case settled on terms favorable to Rand McNally (with no payment on counterclaims) following two rulings granting Rand McNally partial summary judgment. 591 F. Supp. 726 (N.D. Ill. 1983); 600 F. Supp. 933 (N.D. Ill. 1984) (Getzendanner, J.).

29. White and White, Inc. v. American Hospital Supply Corporation, 723 F.2d 495 (6th Cir. 1983). Represented Voluntary Hospitals of America as amicus curiae in appeal from adverse ruling on charges of conspiracy and monopolization of hospital supplies. District court reversed.

30. In Re Folding Carton Antitrust Litigation MDL 250 (Will, J. and Robson, J.). Represented Weyerhaeuser and, as co chairman of defendants' executive committee, was principal spokesman on behalf of all defendants in court proceedings in major price fixing class action case against 25 manufacturers of folding cartons. After initial consolidation in Chicago of cases filed throughout the county (415 F. Supp. 384 (J.P.M.L. 1976)), this complex litigation produced a host of decisions before $200 million settlement. They appear at 75 FRD 727 (N.D. Ill. 1977); 76 FRD 417 (N.D. Ill. 1977); 76 FRD 420 (D.C. Ill. 1977); 1977 2 Trade Cas. 61,807 (D.C. Ill. 1977); 470 F.2d 347 (7th Cir. 1977); 436 U.S. 962 (1978); 465 F. Supp. 618 (D.C. Ill. 1979); 609 F.2d 867 (7th Cir. 1979); 1980 2 Trade Cases 63,439, 63,458, 63,459, 63460, 63,469 (D.C. Ill. 1980); 88 FRD 211 (N.D. Ill. 1980); 1982 1 Trade Cas. 64689 (N.D. Ill. 1980); 557 F. Supp. 1091 (N.D. Ill. 1983).

31. Diehl & Sons, Inc. v. International Harvester Co. Represented International Harvester in defense of antitrust and common law claims by one of its largest East Coast truck dealers and a related truck leasing company. Following initial discovery, district court granted partial summary judgment. 426 F. Supp. 110 (E.D.N.Y. 1976) (Neaher, J.). Following completion of discovery, district court granted further partial summary judgment and ordered jury trial on remaining claims. 445 F. Supp. 282 (E.D.N.Y. 1978). Jury trial on merits was held in New York from May 1 to June 1, 1978. Jury found for International Harvester. Thereafter, district court denied plaintiff's motion for new trial and awarded IH partial j.n.o.v. on counterclaim. 1980 1 Trade Cas. 63,007 (E.D.N.Y. 1978).

32. General Motors: Bus Industry Litigation.

a. New York City v. General Motors No. 72 Civ. 4213 (RLC) (S.D.N.Y. 1972) (Carter, J.). Represented GM in defense of class action alleging monopolization of city transit buses. Case dismissed with prejudice in 1979. No payment by GM to plaintiff or its counsel, with plaintiff's dismissal papers stating it "believes that it will not prevail in this action."

b. AM General v. General Motors, 433 F. Supp. 1166 (D.D.C. 1977) (Richey, J.). Represented GM in case by American Motors to block introduction of GM's advanced design RTS bus on ground bidding specifications were too restrictive. Complaint dismissed following trial.

33. General Communications Engineering, Inc. v. Motorola. Represented Motorola in case charging conspiracy and monopolization of communications equipment. Following extensive discovery, district court granted summary judgment dismissal of complaint on grounds no "significant probative evidence" to support charges. 421 F. Supp. 274 (N.D. Cal. 1976) (Peckham, C. J.).

34. Cain v. Firestone Tire & Rubber Co. No. C 70 1632 RHS (N.D. Cal. 1970) (Schnacke, J.). Represented Firestone in defense of antitrust conspiracy and monopolization of off highway tires charges. Jury trial was held in San Francisco from February 18 to March 22, 1974. Jury awarded plaintiff $75,000 on its $2.2 million claim and Firestone $10,000 on its $25,000 counterclaim.

35. Ankenay v. Firestone Tire & Rubber Co. No. 71 3084 EC (C.D. Cal. 1971) (Crary, J.). Represented Firestone in $1 billion tire price fixing case against 44 rubber, oil and retailing firms. Prepared summary judgment papers that led to dismissal of all claims.

36. Carswell Trucks, Inc. v. International Harvester Co., 334 F. Supp. 1238 (S.D.N.Y. 1971) (Bryan, J.). Represented International Harvester in defense of antitrust challenge to IH parts pricing program. District court denied plaintiffs' motion for summary judgment, and case settled for nominal payment shortly thereafter.

37. Other. Also represented many of the above firms and other clients in a variety of commercial, antitrust, securities, corporate, contract, patent and copyright, libel, slander and defamation, product liability and warranty, credit and employment discrimination, insurance coverage, RICO, fraud, dealer and bankruptcy cases.

Representative Clients and Cases (Merger and Acquisition Situations).

Counsel in wide variety of merger and acquisition situations, representing (1) target and tendering firms in takeovers, (2) acquiring, divesting and competing firms in transactions challenged by government and private parties, (3) management, directors and firms in merger related securities litigation, and (4) investment bankers and arbitrageurs in evaluating antitrust, securities, regulatory and litigation aspects of proposed transactions. Major representations have included:

1. AlliedSignal v. B.F. Goodrich and Coltec Industries. Represented AlliedSignal in challenge to 1999 $2.2 billion Goodrich Coltec merger. Secured preliminary injunction blocking merger. Seventh Circuit affirmed. 183 F.3d 568 (7th Cir. 1999). Case then settled on terms favorable to AlliedSignal.

2. NL Industries/ICI/DuPont. Represented NL Industries in its 1998 proposed $365 million acquisition of certain TiO2 operations from ICI and DuPont. Transaction cleared by foreign antitrust authorities. FTC viewed NL transaction as pro competitive, but indicated it would not approve the ICI/DuPont transaction without divestiture of additional assets to NL. Transaction abandoned January 4, 1999.

3. Crate & Barrel/Otto Versand GmbH. Represented Crate & Barrel in its 1998 recapitalization and sale of a $400 million interest in the company to Otto Versand GmbH.

4. FMC/Carlyle. Represented FMC in the 1997 sale of its 50% owned UDLP defense business joint venture to The Carlyle Group for $850 million.

5. FTC v. Staples and Office Depot. Represented Staples and Office Depot in their 1997 proposed $4.3 billion merger. Following Canadian antitrust clearance, FTC voted to challenge transaction. Consent decree negotiated with staff permitting transaction to proceed upon divestiture of 63 stores to OfficeMax was rejected by Commissioners. On 3-2 vote, FTC decided to seek preliminary injunction. After preliminary injunction trial, District Court enjoined merger. 970 F. Supp. 1066 (D.D.C. 1997) (Hogan, J.). No appeal was taken, and transaction was abandoned.

6. TIMET/IMI Titanium. Represented Titanium Metals Corporation (TIMET) in its 1996 $500 million combination with IMI Titanium Limited. Antitrust clearance secured in the U.S., Germany and the U.K. Thereafter, TIMET taken public in IPO on June 6, 1996, with initial market capitalization of over $800 million.

7. FMC/Moorco. Represented FMC in its 1995 acquisition of Moorco for $311 million. Letter proposing merger sent by FMC on April 3, 1995; tender offer commenced on May 5, 1995. Litigation followed, with FMC securing a stay of Moorco's Texas state court action pending disposition of FMC's Delaware state and federal actions. Agreement reached June 12, 1995.

8. Bell Atlantic/NYNEX v. AT&T. CV 94 3682 (ERK) (E.D.N.Y.). Represented Bell Atlantic and NYNEX and their cellular telephone subsidiaries in their antitrust challenge to AT&T's 1994 acquisition of McCaw Cellular on grounds that the merger would harm competition in the cellular infrastructure equipment market. Case settled on favorable terms shortly before trial.

9. Baroid/Dresser. Represented Baroid in securing FTC clearance of its 1994 acquisition by Dresser for $914 million.

10. Weyerhaeuser/P&G Pulp Mills. Represented Weyerhaeuser in connection with its 1992 acquisition of two pulp mills and related timberlands and sawmills from Procter & Gamble for $600 million. U.S., Canadian and European antitrust clearance secured.

11. NL Industries/Lockheed. Represented NL Industries in connection with its approximately 20 percent stock interest in Lockheed. In 1990 proxy contest, NL won four shareholders rights initiatives and received 40 percent vote for its director slate, with the difference attributable to an ESOP set up by management to hold about 20 percent of Lockheed's shares. NL began 1991 proxy context. On March 18, 1991, however, NL sold 12 million Lockheed shares for $480 million, an approximately $30 million loss. Thereafter, NL challenged the legality of certain Lockheed actions related to the proxy context. On December 7, 1992, a jury returned a verdict in NL's favor for $30 million. Case settled for $27 million during 1994 while appeal pending.

12. NL Industries/Georgia Gulf. Represented NL Industries in connection with its stock position in Georgia Gulf. After NL's 1989 acquisition of 10 percent of Georgia Gulf's shares and 1990 tender offer for the rest, Georgia Gulf engaged in a restructuring supported by NL. Shares sold for $16 million gain.

13. Rhone-Poulenc/Miles. Represented Miles Laboratories in securing FTC clearance of the 1990 sale of its Marschall dairy ingredients business to Rhone-Poulenc for $42 million.

14. Reliance Group Holdings, Inc. v. FSLIC. No. 89-4002 (2d Cir.). Represented Reliance in its 1988-89 effort to acquire five Texas savings and loan associations with assets of $12.0 billion and on its petition to overturn the FSLIC's decision allowing another bidder to acquire these associations. Matter was settled on terms favorable to Reliance.

15. Philip Morris/Kraft. Represented Kraft in securing FTC clearance of its 1988 acquisition by Philip Morris for $12.6 billion.

16. Whirlpool/Roper. Represented Whirlpool in 1988 acquisition of Roper brand name. Whirlpool made $37/share tender offer for Roper Corporation. General Electric thereafter made $47/share tender offer. Whirlpool responded with $50/share offer and GE with $54/share offer. Litigation ensued in Michigan and Delaware. Matter settled and agreed transaction closed, with GE receiving Roper manufacturing facilities and Whirlpool receiving Roper brand name, supply contract and substantial other consideration.

17. Greyhound/Trailways. ICC Docket No. MC F 18505TA. Represented Greyhound in its 1987 acquisition of Trailways. Persuaded ICC to grant interim authority to proceed with transaction despite DOJ opposition. Subsequently persuaded DOJ that Trailways was a failing company and to withdraw opposition. Thereafter, defeated challenges to transaction in private action in federal district court in Massachusetts and appeal to D.C. Circuit from favorable ICC ruling.

18. Valhi/McDermott. Represented Valhi in connection with its stock position in McDermott International. Upon Valhi's 1987 public announcement that it had acquired more than five percent of McDermott's shares, McDermott (a Panamanian corporation) claimed acquisition unlawful. Argued before Panamanian SEC. Shares sold for $15 million gain.

19. AccuRay/Combustion Engineering. Represented AccuRay corporation in 1987 takeover of AccuRay by Combustion Engineering. Stock had been trading at $18 per share. CE initially made unsolicited tender offer at $35 per share. Negotiated competing tender offer by Hercules at $40 per share and blocked CE street sweep. CE sued, but then agreed to offer $45 per share in negotiated transaction with employee protection as well.

20. Beatrice/KKR. Represented inside directors in litigation challenging golden parachute contracts and other provisions of 1986 acquisition of Beatrice by KKR financed LBO group. Favorable settlement approved by Delaware Supreme Court. 522 A.2d 865 (Del. 1987).

21. Steiger Tractor/Tenneco. Represented Steiger Tractor in connection with 1986 tender offer acquisition of Steiger by Tenneco. DOJ staff recommended suit to block transaction on antitrust grounds. Persuaded Asst. A.G. of Antitrust Division to reverse recommendation and not to sue.

22. Carter Hawley Hale Stores, Inc. Represented largest independent shareholder of CHH in connection with 1984 and 1986 hostile tender offers for CHH. Shares sold for $15 million gain.

23. Dart & Kraft/Whirlpool/Emerson. Represented Dart & Kraft in sale of its KitchenAid home appliance business to Whirlpool and Emerson Electric. FTC cleared transaction (3 2 vote). Competitors (White Consolidated and Magic Chef) sued to block transaction. Case tried from April 29 to May 30, 1985 in Cleveland. Won in district court. 612 F. Supp. 1009 (N.D. Ohio 1985); 619 F. Supp. 1022 (N.D. Ohio 1985) (Krenzler, J.). Sixth Circuit affirmed. 781 F.2d 1224 (6th Cir. 1986).

24. FTC v. Weyerhaeuser Co. Represented Weyerhaeuser in its acquisition of West Coast paper mill and other assets from Menasha. After preliminary injunction trial, District Court denied FTC's petition to block acquisition. 1981 1 Trade Cas. 63,974 (D.D.C. 1981) (Pratt, J.). D. C. Circuit affirmed. 665 F.2d 1071 (D.C. Cir. 1981). Merger closed. Following trial on merits, Administrative Law Judge upheld the legality of the merger and full FTC affirmed. 106 F.T.C. 172 (1985).

25. Navistar/International Harvester: Various Divestitures.

a. Tenneco (Agricultural Equipment Business). Represented International Harvester in 1985 sale of farm equipment business to Tenneco. Persuaded Department of Justice not to challenge combination of second and third largest farm equipment manufacturers.

b. Caterpillar Tractor (Solar Turbines Division). Represented IH in 1981 sale of Solar Turbines division to Caterpillar Tractor. DOJ staff recommended suit to block transaction on antitrust grounds. Persuaded Asst. A.G. of Antitrust Division to reverse recommendation and not to sue.

c. Others. Represented IH in divestitures of various other businesses, including the 1982 sale of its axle and transmissions business to Dana Corporation and the 1982 sale of its construction equipment business to Dresser Industries.

26. USG Corporation: Various Acquisitions.

a. Desert Partners. Represented USG Corporation in connection with 1988 unsolicited takeover attempt by Desert Partners (a Wagner & Brown controlled partnership). USG shareholders' rights plan upheld by court, corporate restructuring completed, takeover effort defeated.

b. Belzbergs. Represented USG in litigation challenging the Belzbergs' 1986 acquisition of USG stock and in the settlement thereof. Subsequently represented USG in derivative cases challenging settlement as greenmail. Cases dismissed for failure to make a demand on USG board to bring suit.

c. Conwed. Represented USG in its 1985 acquisition of Conwed ceiling tile business from Leucadia National. Chicago office of DOJ recommended suit to block transaction. Persuaded top DOJ staff in Washington to reverse recommendation and not to challenge transaction.

d. Masonite. Represented U. S. Gypsum in successful 1984 takeover of Masonite. Persuaded FTC not to oppose combination of these two leading hardboard manufacturers. Competing third party bidder was defeated.

27. FMC Corporation/Olin Corporation. Represented FMC in 1985 divestiture of certain chemical operations to Olin. Convinced FTC, which believed transaction would violate merger laws, to permit transaction to close subject to hold separate order pending disposition of divestiture case to be brought by FTC against Olin.

28. Muse Air/Southwest Airlines. DOT Docket No. 42987. Represented Muse Air in 1985 acquisition of Muse Air by Southwest Airlines. Persuaded Department of Transportation to approve transaction over opposition of several competing airlines.

29. SCA Services, Inc./Waste Management, Inc. Represented SCA Services in 1984 takeover of SCA by Waste Management. Waste Management paid $28.50 per share for SCA stock that had been trading at $12.50 per share before merger.

30. FTC v. Gulf Oil Corp. CA No. 82 2131 (D.D.C. 1982) (Richey, J.). Represented Gulf in antitrust aspects of attempted takeover of Cities Service. Defended preliminary injunction case brought by FTC. Gulf withdrew tender offer shortly before trial.

31. FTC v. Great Lakes Chemical Corp. Represented Great Lakes in acquisition of Velsicol's bromine operations. FTC opposed because of market shares of 30% + 18% and 44% + 20% in two major products. After preliminary injunction trial, District Court denied government's petition for preliminary injunction. 528 F. Supp. 84 (N.D. Ill. 1981) (McGarr, C. J.). Seventh Circuit subsequently denied the government's request for a stay pending appeal, and merger was completed.

32. Marshall Field & Co.: Various Takeover Situations.

a. BATUS Inc. Represented Field's in the 1982 acquisition of Field's by BATUS, U. S. subsidiary of B.A.T Industries p.l.c. of Great Britain. 100 F.T.C. 553 (1982). Subsequently represented BATUS in successful 1984 effort to secure modification of FTC consent decree permitting original acquisition. 104 F.T.C. 632 (1984). Also represented Field's in litigation with Carl Icahn and related parties in their attempted takeover of Field's that preceded the BATUS transaction.

b. Carter Hawley Hale Stores, Inc. Represented Field's in antitrust and securities law challenge to CHH takeover effort. No. 77 C 4595 (N.D. Ill. 1977) (Marshall, J.) CHH abandoned effort. Thereafter, represented Field's and inside directors in follow up securities litigation challenging Field's opposition to the CHH takeover effort. Jury trial held in Chicago from January 21 to February 14, 1980. District Court granted directed verdict to defendants at close of plaintiffs' evidence. Panter v. Marshall Field & Co., 486 F. Supp. 1168 (N.D. Ill. 1980) (Leighton, J.) Seventh Circuit affirmed. 646 F.2d 271, (7th Cir. 1981). Supreme Court denied certiorari. 454 U.S. 1092 (1981).

33. Pullman, Inc. v. J. Ray McDermott & Co., Inc. No. 80 C 3555 (N.D. Ill. 1980) (McGarr, J.). Represented Pullman in defense against 1980 hostile tender offer for Pullman by McDermott. Wheelabrator Frye entered the picture as a white knight with a competing bid supported by Pullman. Following a preliminary injunction trial, the district court made a series of rulings on antitrust and securities issues, some favorable to McDermott and some to Pullman/Wheelabrator Frye, that in the end led to the defeat of the McDermott tender offer and enabled Wheelabrator Frye to emerge as the successful bidder.

34. United States v. General Dynamics. Represented General Dynamics in suit by DOJ charging acquisition of coal companies violated antitrust laws. Won in District Court. 341 F. Supp. 534 (N.D. Ill. 1972) (Robson, C. J.). Affirmed by U. S. Supreme Court in landmark decision that has become the leading antitrust precedent in the merger field. 415 U.S. 486 (1974).

35. Rex Chainbelt, Inc./Nordberg Manufacturing Co. Represented Rex Chainbelt in lengthy 1971 72 FTC investigation of its merger with Nordberg to form Rexnord, Inc. Persuaded FTC not to challenge transaction.

36. FTC v. Dean Foods Co. Represented Dean Foods in its acquisition of Bowman Dairy. The Seventh Circuit denied the FTC's petition under All Writs Act for preliminary injunction to block acquisition. 356 F.2d 481 (7th Cir. 1966). Thereafter, Supreme Court reversed 5 4 and remanded. 384 U.S. 597 (1966). Following trial on merits, the Administrative Law Judge issued a decision upholding the legality of the merger. 70 F.T.C. 1146, 1153 1221 (1966). This was reversed by the Commission. Id. at 1221 1318. Thereafter, while on appeal to the Seventh Circuit, case was settled with a consent decree that allowed Dean to keep Bowman. 71 F.T.C. 731 (1967); 1967 Trade Cas. 72,086.

37. Arbitrageurs. Have represented Ivan F. Boesky Corporation, S. B. Lewis & Co., American Securities Corporation, PaineWebber Inc. and other arbitrageurs in evaluating antitrust, securities, regulatory and litigation aspects of both friendly and hostile merger and acquisition situations.

38. Others. Also represented in connection with other actual or potential merger and acquisition situations many of the above firms and numerous other clients, including Adler & Shaykin, AlliedSignal Inc., American Stores Company, Amoco Corporation, BankAmerica Corporation, Baroid Corporation, BATUS Inc., Baxter Travenol Laboratories, Inc., Brown & Williamson Tobacco Corporation, CF Industries, Inc., Chemtron Corporation, Dean Witter, Discover & Co., E II Holdings Inc., Firestone Tire and Rubber Company, General Motors Corporation, Golder, Thoma & Cressey, Frank B. Hall & Company, Harnischfeger Corporation, Hartmarx Corporation, Hershey Foods Corporation, IDC Services, Inc., Illinois Tool Works Inc., S. C. Johnson & Son, Inc., Kohlberg & Co., Kraft Foods, Inc., Olin Corporation, Premark International, Inc., Reliance Group Holdings, Inc., Sears, Roebuck & Company, Shell Oil Company, Tatham Corporation, Tejas Gas Corporation, Tenneco Corporation, Tremont Corporation, Valhi, Inc. and Vulcan Materials Company.

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