THE LOEWEN GROUP, INC. and RAYMOND L. LOEWEN, v. THE ...

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22 (...continued) to an international delinquency.") (emphasis in original). 23 See Joint Reply at 70-71; Hawkins Statement at 21; Statement of John G. Corlew ("Corlew Statement") at 8. 1. O'Keefe's Antitrust Claims Were Legally Sound And Properly Submitted To The Jury With characteristic bravado, claimants assert that O'Keefe's antitrust claim "was so legally deficient that any fair-minded judge would have dismissed it prior to trial." Joint Reply at 70. Once again, however, precisely the opposite is true: O'Keefe's antitrust claim was so plainly valid as a matter of law that Loewen's mishandling of the issue is yet another example of the grievous errors committed by Loewen's trial counsel. Claimants and at least two of their experts contend that O'Keefe "grounded his 'monopolization/antitrust' claim" solely on a theory of predatory pricing, whereby a defendant sells products below cost in order to drive out competition. 23 This is simply untrue. As O'Keefe argued to the court, "[p]redatory trade practices may consist of any per se or statutory violation of law, or any practice which is intended to destroy competition . . . ." A3232 (citing Miss. Code Ann. § 75-21-3) (emphasis added). Although O'Keefe did argue that "price discrimination by locality" would have been a per se violation of Mississippi's anti-monopoly law, O'Keefe also argued that Loewen's other "malicious acts . . . which [were] intended and calculated to destroy competition and exclude weak competition from the market . . . are predatory trade practices" in violation of the statute. Id. (citing Poller v. Columbia Broadcasting Sys., Inc., 368 U.S. 464 (1962)). 24
O'Keefe, of course, was absolutely right. Mississippi's anti-monopoly law is not limited only to prohibitions against predatory pricing, but instead broadly proscribes predatory or exclusionary conduct in any form. See Miss. Code Ann. § 75-21-3; see also Standard Oil Co. v. State, 61 So. 981, 982 (Miss. 1913) (predecessor statute "denounces all restraints of the freedom of trade, and is broad enough to cover every and all kinds of business dealings inimical to the general welfare of the people of the state."). While, "[i]n its classic form, predation occurs as pricing below cost to drive a rival from the market," Philip E. Areeda & Herbert Hovenkamp, Antitrust Law § 396g (1995), predatory pricing is by no means the only way to violate anti- monopoly law. Rather, "[t]he offense of monopolization" is defined more generally as "the possession of monopoly power coupled with the attainment or maintenance of that power by unfair means . . . ." E. Kintner, Federal Antitrust Law § 14.5 at 437 (1980); see also Areeda & Hovenkamp, Antitrust Law § 650c (antitrust law generally proscribes "monopolies shown to be achieved with the aid of reprehensible conduct"). 24 O'Keefe's pleadings clearly alleged (and O'Keefe ultimately proved at trial) the "unfair means" by which Loewen attempted to attain its monopoly power, having nothing to do with "pricing below cost." See, e.g., A175. 25 As O'Keefe explained to the court during a pre-trial 24 See also NAACP v. Claiborne Hardware Co., 393 So.2d 1290, 1301 (Miss. 1980) (federal case law construing federal antitrust law is persuasive authority in application and interpretation of Mississippi's antitrust statutes), rev'd on other grounds, 458 U.S. 886 (1982). 25 To the extent that O'Keefe also asserted an "impermissible pricing" claim, Judge Graves gave Loewen precisely what it wanted in the court's instructions to the jury. See Tr. 5525-26 (instructing jury that "any claim for impermissible pricing must show that the plaintiffs were injured because defendant charged a price for a product or service . . . that was lower than that defendant's cost for that product or service."). The court's instruction on the law of "monopolization," however, was entirely distinct from the "impermissible pricing" instruction. (continued...) 25
Page 1 and 2: IN THE MATTER OF: THE LOEWEN GROUP,
Page 3 and 4: III. CLAIMANTS CANNOT OVERCOME LOEW
Page 5 and 6: C. Claimants Fail To Establish A Vi
Page 7 and 8: I. INTRODUCTION This arbitration co
Page 9 and 10: claimants' invitation to serve as a
Page 11 and 12: A. Claimants Entirely Ignore The Se
Page 13 and 14: important basis for the jury's ulti
Page 15 and 16: unfair competitor, and to garner sy
Page 17 and 18: "completely ridiculous." Millen Dec
Page 19 and 20: O'Keefe's explanation that Riemann'
Page 21 and 22: Mr. Blackmon, who was on Loewen's t
Page 23 and 24: 5677 (emphasis added). This was esp
Page 25 and 26: For example, the O'Keefe plaintiffs
Page 27 and 28: within his rights to elicit testimo
Page 29: in the present proceeding, claimant
Page 33 and 34: F.3d 1312, 1314 (9th Cir. 1994) (co
Page 35 and 36: Loewen's monopolistic practices, an
Page 37 and 38: More fundamentally, claimants' disc
Page 39 and 40: conducted by Loewen-retained lawyer
Page 41 and 42: (Federal Judicial Center 1995). 37
Page 43 and 44: In response, claimants contend that
Page 45 and 46: a single citation to the record to
Page 47 and 48: In short, since the United States f
Page 49 and 50: as is alleged here, the cost of a s
Page 51 and 52: Trost at 4. potentially ruinous jud
Page 53 and 54: Claimants ignore the international
Page 55 and 56: To rise to the level of a general p
Page 57 and 58: Claimants ignore this distinction e
Page 59 and 60: . The "Plain Error" Rule Is Foreclo
Page 61 and 62: (same). 60 See also Miss. R. App. P
Page 63 and 64: Moreover, even if the obligation of
Page 65 and 66: In any event, as the record makes c
Page 67 and 68: injuries, thus eliminating any poss
Page 69 and 70: In fact, the Mississippi courts wer
Page 71 and 72: though the United States was not a
Page 73 and 74: To support its novel causation theo
Page 75 and 76: cause is a necessary prerequisite o
Page 77 and 78: transactions where insurers assume
Page 79 and 80: settle the litigation. 85 As the Ge
Page 81 and 82:
(quoting Detlev F. Vagts, Coercion
Page 83 and 84:
after the United States filed its C
Page 85 and 86:
elying largely on authorities invol
Page 87 and 88:
Supreme Court, the Court would have
Page 89 and 90:
Mississippi counties where the judg
Page 91 and 92:
in any foreign state where O'Keefe
Page 93 and 94:
A. NAFTA Article 1121 Is Irrelevant
Page 95 and 96:
econsidered, does not of itself amo
Page 97 and 98:
B. Even If The Local Remedies Rule
Page 99 and 100:
In particular, Mr. Broches expressl
Page 101 and 102:
If there were any doubt on this poi
Page 103 and 104:
countless remarks of O'Keefe's coun
Page 105 and 106:
In fact, jurisdictions other than M
Page 107 and 108:
of different nationalities - "litig
Page 109 and 110:
appealed to nationalistic biases by
Page 111 and 112:
"[w]hile preaching homespun values
Page 113 and 114:
justice, irrespective of the local
Page 115 and 116:
claimants, not the United States, w
Page 117 and 118:
Article 1105] to suggest a departur
Page 119 and 120:
more than the handful of "denial of
Page 121 and 122:
Where the judicial action in questi
Page 123 and 124:
privately reported to Loewen (his c
Page 125 and 126:
damages. 136 Because the initial ve
Page 127 and 128:
said, what they did or why they did
Page 129 and 130:
awards in a wide range of circumsta
Page 131 and 132:
The contention that the $35 million
Page 133 and 134:
epresent only a fraction of even th
Page 135 and 136:
anything other than a genuine (and
Page 137 and 138:
instrument." Joint Reply at 112-13
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discriminatory bond requirement. Ga
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Loewen cited. A1075-78. While Judge
Page 143 and 144:
A full bond was especially importan
Page 145 and 146:
inaccurate, as it allegedly misquot
Page 147 and 148:
Given that Loewen's own evidence su
Page 149 and 150:
law does not constitute an unjust j
Page 151 and 152:
established rules of law. Claimants
Page 153 and 154:
out in this Agreement." NAFTA art.
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has been recognized. 169 See id. at
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under customary international law t
Page 159 and 160:
Metalclad Corp. (U.S.) v. United Me
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