By Anna Vitale, Missouri Lawyers Weekly

A St. Louis County jury awarded Creve Coeur-based Monsanto a verdict of more than $7.6 million June 28 in the company’s suit against Houston-based ConocoPhillips.

According to Monsanto’s petition, Conoco fell short in delivering petroleum coke that was promised in a sales agreement. Petroleum coke is produced during the oil-refining process and is used by Monsanto to make Roundup herbicides.

The sales agreement stated that Conoco was to deliver at least 64,000 short tons of petroleum coke in 2005 and 2006, claimed Monsanto, but Conoco only delivered about 52,500 tons in 2005 and about 30,700 in 2006. In total, that amounts to a shortfall of about 45,000 tons over the two-year period.

Because of the shortfall, Monsanto claimed it had to seek out other, more expensive providers.

In Conoco’s answer, it said Monsanto didn’t inform it of the alleged breach of contract in a timely manner or give it a chance to make right by the agreement.

Monsanto was represented by James Bennett, Gabriel Gore and Jennifer Kingston, of Dowd Bennett in Clayton.

Bob Peirce, a spokesman for Monsanto, said the company was looking forward to continuing to develop Roundup herbicides.

“The jury clearly understood the issues involved when ConocoPhillips did not supply us with the amount of petroleum coke in 2005 and 2006 called for by the contract,” he said in a written statement, “so that we had to purchase the material elsewhere for a higher price.”

Conoco was represented by Jeffrey Parsons, of Beirne Maynard & Parsons in Houston, and John Reynolds, of Tueth, Keeney, Cooper, Mohan & Jackstadt in Clayton, at trial. Parsons did not respond to requests for comment.

Ian P. Cooper, also of Tueth, Keeney, Cooper, Mohan & Jackstadt, wrote Conoco’s answer to Monsanto’s petition. He said all media requests should be directed to the company. A message left on ConocoPhillip’s media line was not returned.

$7.6 million jury verdict
Breach of contract
Case Number/Date: 08SL-CC-02002/June 28, 2010
Court: St. Louis County Circuit Court
Judge: John F. Kintz
Plaintiff Expert: Sean Durkin, Chicago (economics)
Caption: Monsanto Co. and P4 Production, LLC v. ConocoPhillips Co.
Plaintiffs’ Attorneys: James Bennett, Gabriel Gore and Jennifer Kingston, Dowd Bennett, Clayton
Defendant’s Attorneys: Jeffrey Parsons, Beirne Maynard & Parsons, Houston; John Reynolds and Ian P. Cooper, Tueth, Keeney, Cooper, Mohan & Jackstadt, Clayton

Copyright 2010  Missouri Lawyers Media

CLAYTON (Daily Record)

A St. Louis County jury awarded agriculture monolith Monsanto a verdict of more than $7.6 million last week in the company’s suit against Houston-based ConocoPhillips.

According to Monsanto’s petition, Conoco fell short in delivering petroleum coke that was promised in a sales agreement. Petroleum coke is produced during the oil-refining process, and Monsanto uses it to make Roundup herbicides.

The sales agreement stated that Conoco was to deliver at least 64,000 short tons of petroleum coke in 2005 and 2006, claimed Monsanto, but Conoco only delivered about 52,500 tons in 2005 and about 30,700 in 2006. In total, that amounts to a shortfall of about 45,000 tons over the two-year period.

Because of the shortfall, Monsanto claimed it had to seek out other, more expensive providers.

In Conoco’s answer, it said Monsanto didn’t inform it of the alleged breach of contract in a timely manner or give it a chance to make right by the agreement.

The case is Monsanto Company and P4 Production, LLC v. ConocoPhillips Company, 08SL-CC-02002.

Copyright 2010  Missouri Lawyers Media

As the Chair of the Race, Ms. Kingston is responsible for overseeing the organization and planning of every aspect of the Race including coordination of over 1,200 volunteers, corporate sponsorships, and the registration of over 60,000 participants.  She also serves on the Board of the St. Louis Affiliate of Susan G. Komen for the Cure and leads the Race Steering Committee, which is comprised of 12 separate committees.

Dowd Bennett is a Bronze sponsor of the 2010 Race, which will take place on Saturday, June 12th in Downtown St. Louis.  Of the net proceeds raised locally from the Komen St. Louis Race for the Cure, a minimum of 25% goes to national breast cancer research and up to 75% stays in St. Louis to help organizations provide breast cancer education, screening, treatment, and research programs.  To register for this year’s Race, to make a donation, or to learn more about Susan G. Komen for the Cure, visit www.komenstlouis.org.

New Partners Announcement (PDF)

Keep politics out of our courts

Missouri courts do their jobs in a fair and impartial way without regard to partisan politics. The non-partisan court plan was instituted in Missouri in 1940 because of rampant voter fraud in the 1930s. Since then, most states have adopted what is called the Missouri Plan.

Under the Missouri Plan, a group of citizens and lawyers, chaired by a judge, selects a panel of three qualified individuals for the governor, who selects the person that is most qualified to serve as a judge. We have a very knowledgeable and experienced group of judges in St. Louis, St. Louis County, Kansas City and on the Appellate and Supreme courts of Missouri.

Now the Missouri Plan is under attack by people who want judges elected in partisan elections.

We do not want judges making promises to anyone about how they will rule if elected, or to engage in fundraising to raise millions of dollars to run a campaign.

No lawyer wants to appear in court against a lawyer who contributed thousands of dollars to the judge’s campaign. We do not want a system like Illinois, which has brutal, partisan elections of judges. It is not fair.

Let’s keep politics out of our courts. There are people seeking signatures to make our courts political and to make our judges run in partisan elections. Please refuse to sign any petition you see that will result in partisan, expensive, divisive elections of our judges.

The Missouri Plan has worked well for 70 years. Let’s save the Missouri Plan. We must protect our courts.

Edward L. Dowd — Clayton, Co-chairman, Citizens for Missouri Courts

Wal-Mart wins defense verdict in federal court

The Equal Employment Opportunity Commission has lost a case involving a woman who alleged Wal-Mart fired her because of her age.

A  U.S. District Court for the Eastern District of Missouri jury found for Wal-Mart on April 7.

Yvonne Loskot was 67 when she was fired from the De Soto store’s optical center. At the time, she made just under $18 an hour and was the highest-paid optician at the center, according to the EEOC.

The EEOC alleged that the district vision center manager targeted Loskot because of her age and how much money she made, said EEOC attorney Andrea Baran. The EEOC claimed it had testimony from the center’s former manager that the district manager had told her to cut workers’ hours in May 2005 and particularly Loskot’s because she was “old” and was going to retire soon anyway.

“She [the center manager] had a clear understanding from him [the district manager] that he wanted her to get rid of Mrs. Loskot,” Baran said. The district manager denied during trial he ever made such comments, she said.

After the cutback in hours and the firing of the optical center manager, the district manager ordered a loss-prevention specialist to investigate the De Soto center’s optical department and, specifically, Loskot, the EEOC claimed.

Wal-Mart said the investigation gave it reason to believe Loskot had stolen glasses and enrolled her grandchildren without permission in the program Project Insight, which provides eye care to children without insurance, Baran said.

Baran said Loskot “had receipts going back for years.”

Baran said the division center manager gave permission to the optical center manager to enroll Loskot’s grandchildren and two other employees’ children into Project Insight and that Loskot’s grandchildren would have been eligible for the program anyway.

Baran said the EEOC employed a “cat’s paw” theory in the case, in which one person unwittingly carries out another person’s discriminatory motives. In this case, Baran said, the loss-prevention specialist was not aware of the district manager’s ultimate goal of firing Loskot for her age.

While Wal-Mart’s internal investigation was pending, Loskot visited a doctor because of stress, Baran said.

After Loskot was diagnosed with extreme anxiety, she took what she believed was an approved 30-day leave of absence, Baran said. During that time, Wal-Mart claimed she missed a scheduled meeting with the loss-prevention specialist, denied her leave of absence and fired her in October 2005.

Baran said the EEOC sought back pay and benefits totaling more than $160,000 for Loskot. Under the Age Discrimination in Employment Act, she said, you cannot ask for punitive damages, but a judge potentially can double the jury verdict if he or she makes a finding of willfulness on the part of the employer.

After initial attempts to settle and ultimately three days of trial, the jury returned the defense verdict.

James Bennett of Dowd Bennett represented Wal-Mart but declined to comment on the case. He referred a reporter to Wal-Mart’s corporate media department.

“We’re pleased that the jury has recognized that our managers acted appropriately in this matter,” said Wal-Mart spokesman Greg Rossiter.

Employment attorney Jerry Carmody said he thinks Wal-Mart had discipline termination protocols in place. “Employers who terminate people in a protected age group – 40 or over – are conscious of the possibility that claims can arise and will be certain to take extra measures to ensure there are documented reasons for the termination,” said Carmody, of Carmody MacDonald. He is not affiliated with the case. “I expect that’s what happened in this case.”

Baran said she was “disappointed” in the jury’s decision, and that most cases taken up by the EEOC settle.

“We’re committed to taking our cases all the way through to the end,” she said.

Defense jury verdict
Age discrimination
Court: U.S. District Court for the Eastern District of Missouri
Case Number/Date: 4:08-CV-01439-AGF/April 7, 2010
Judge: Audrey G. Fleissig
Caption: Equal Employment Opportunity Commission v. Wal-Mart Stores Inc.
Plaintiff’s Attorneys: Andrea G. Baran and Barbara Seely, EEOC
Defendant’s Attorneys: James F. Bennett, Erika M. Anderson and Jennifer L. Aspinall, Dowd Bennett, Clayton

Copyright 2010  Missouri Lawyers Media

Lawyers still arguing over A-B sale

Wednesday morning, in a courtroom high atop the city in the Thomas F. Eagleton 
U.S. Courthouse and 27 floors removed from the reality of the street, a 
three-judge panel of the 8th Circuit Court of Appeals listened to lawyers argue 
about whether InBev ought to be allowed to buy Anheuser-Busch.

Wait a minute, I thought. This is already a done deal. The Clydesdales are 
charging two grand for an appearance. The Busch family is in exile. The new big 
shots speak Portuguese. Most importantly, the shareholders have their money.

Still, the courtroom was nearly filled with men and women in business suits, 
and all of them were seemingly paying close attention to the arguments.

I like lost causes as well as the next guy, but really, how do you unring this 
bell? It’s as if Cardinals fans were to go to court to argue that umpire Don 
Denkinger got the call wrong in the sixth game of the 1985 World Series when he 
ruled that the lead-off hitter in the ninth inning was safe at first. What 
would the court do? Get the 1985 Cardinals and Royals together again to replay 
the ninth inning?

One of the judges seemed to share my befuddlement. Judge Myron H. Bright mused 
aloud — as appellate judges so often do — that because InBev had already bought 
Anheuser-Busch, there would be a problem, would there not, if the court were to 
find that InBev ought not be allowed to buy Anheuser-Busch? What would the 
remedy be?

“Divestiture,” said attorney Joseph M. Alioto Jr.

That would mean that InBev would be required to divest itself of Anheuser-Busch.

“I’m puzzled,” said Bright. It takes a bit to get him puzzled. He has been 
hearing cases with the 8th Circuit for 41 years and eight months. He wondered 
aloud how divestiture would take place, and who would supervise it. “It’s 
mind-boggling,” he said.

The next lawyer approached the lectern. His name is Peter Moll, and he thought 
that InBev should be allowed to buy Anheuser-Busch. He made some legal point I 
could not follow about “perceived potential competition.”

Actually, Wednesday’s arguments had to do with a lawsuit filed in federal court 
in September 2008 at a time when the sale was imminent. The lawsuit sought to 
stop the sale on antitrust grounds. The sale went through in November of that 
year, but the lawsuit clunked along, anyway. Ultimately, it was dismissed. 
Wednesday was an appeal of that dismissal.

Moll is a high-priced guy from Washington. Court papers say that the local law 
firm working with him is Dowd-Bennett. Ed Dowd Jr. is a former U.S. attorney. 
James F. Bennett was one of the lead attorneys on the winning side when Metro 
unsuccessfully sued the designers and construction managers who built the 
light-rail extension. In other words, top guys.

Well, sure. InBev has deep pockets.

What about the lawyers on the other side? Alioto is no small potatoes. His 
grandfather was Joseph L. Alioto, longtime mayor of San Francisco, and his 
father, Joseph M. Alioto, is a nationally known antitrust attorney. Several 
other out-of-town law firms are also listed in court papers. Who’s paying them?

“I’m on my own coin,” Alioto told me. “If we win, the court can order the other 
side to pay our legal fees.

“

Under that theory, the plaintiffs’ lawyers are gambling that the court 
eventually will order InBev to divest itself of Anheuser-Busch. Does that seem 
realistic?

By the way, Alioto’s local counsel is Ted Schwartz. He has been practicing law 
longer than Bright has been on the bench. He is considered a very sharp fellow. 
He used to be known for the full-length mink coats he’d wear to court in the 
winter. He drives a Rolls-Royce. You don’t get those things by betting on 
inside straights. I asked Schwartz if this was really about getting a 
settlement from InBev.

After all, if the plaintiffs lose the appeal, they can ask for a hearing in 
front of the entire 8th Circuit, and if that fails, they still have the U.S. 
Supreme Court.

“This is Joe’s case,” Schwartz said.

I called Alioto. He explained that this case is really about helping consumers. 
He said that if InBev were required to come into the market as a competitor, it 
would create competition and consumers would not only get lower prices, they’d 
probably get better beer.

I asked if he were interested in a settlement. He said he did not want to talk 
about a settlement. “My focus is prevailing on the merits of the case,” he said.

I asked if he is a beer drinker. Yes, he said. What kind? Anchor Steam, he 
said. No, Bud, he said. I drink Bud.

Western District debates who can fire ALJs

Appeals court judges Thursday asked how, beyond the language of a state statute, administrative law judges can be fired.

Ron Holliger, general counsel for Missouri Attorney General Chris Koster, told the judges the Legislature has the power to create, abolish, modify or change any position – including through appropriations legislation.

“It’s been a general proposition of American law for many, many years that the body that creates a public office can abolish that position,” Holliger said at the hearing before the Missouri Court of Appeals Western District, at the University of Missouri Law School.

“If the position is established by the constitution, then it can be abolished by the people through only a constitutional amendment,” said Holliger, who served on the court before taking his job as Koster’s general counsel.

Last year, the Legislature passed a budget bill to cut positions at the Division of Workers’ Compensation. After the bill was signed into law, a number of administrative law judges received letters saying their tenure would end at the end of June. Gov. Jay Nixon’s administration cited the state’s worsening financial situation for the decision.

Three of the judges – Matthew Murphy, Henry Herschel and John Tackes – sued, arguing that they could be dismissed only through a process delineated in a statute. Cole County Circuit Judge Jon Beetem ultimately agreed, as he issued a permanent injunction last year keeping the three judges in their positions.

“Once appointed and assuming they remain otherwise qualified to serve, an administrative law judge appointed pursuant to [state statutes] may be removed only by the Governor after two or more votes of no confidence by the Committee or by a vote of non-retention taken at the end of their term,” Beetem wrote in a 10-page decision.

But on Thursday, Holliger told the judges, “The precedent is that the Legislature can use either its appropriations power or its other legislative power to eliminate positions or eliminate funding.”

John Comerford – the attorney for Murphy, Herschel and Tackes – argued that the administrative law judges could only be ousted either at the end of their terms – or if they receive votes of no confidence from a state board. Judge Mark Pfeiffer asked if it was Comerford’s position that under no scenario could budget legislation reduce the number of ALJs.

“Well, I certainly don’t believe … the specific removal methods that are spelled out in that statute authorize an additional removal method through the appropriations process,” Comerford said. “I think as a practical matter, the Legislature could simply change the statutorily authorized ALJs in the first sentence [of the statute] and do it that way.”

Judge Alok Ahuja said his concern is if the Legislature actually authorized the director of the division to eliminate the ALJs’ positions. He said the language of the budget bill in question showed the amount of money and positions allowed but didn’t say anything specifically about eliminating the judges’ positions.

“In your view, is there any warrant to look beyond the face of [the budget legislation] to determine the need of the bill?” Ahuja asked Comerford.

“Absolutely not,” Comerford said, adding that it’s “incumbent on them as the executive branch to enact their appropriation in a way that comports with the law.”

Copyright 2010  Missouri Lawyers Media

Suit against medical center is dismissed

March 5, 2010 EL PASO — A federal lawsuit against a medical center with two clinics in El Paso has been dismissed, attorneys for the center said this week.

The suit alleging Medicare fraud by Fresenius Medical Care of North America and a clinic manager, Larry Ramirez, was dismissed by U.S. District Judge Phillip Martinez, attorneys said. Martinez dismissed the case after a jury found that a doctor named in the lawsuit, Dr. Alfonso Chavez, wasn’t liable.

Rebecca Gonzalez, a former clinic employee, filed the suit and claimed that the company had for years allowed two unlicensed employees to pose as doctors and administer kidney dialysis treatment without the presence of a licensed physician. She claimed Chavez and Ramirez devised a fraudulent scheme to bill Medicare for those dialysis treatments.

Copyright 2010 El Paso Times, Texas

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