Trendsettah USA, Inc. et al vs- Swisher International Inc

Filing 596

JUDGMENT by Judge James V. Selna. The Court NOW ENTERS JUDGMENT AS FOLLOWS: 1. Judgment is entered in favor of Defendant and against Plaintiffs on all of Plaintiffs' claims, including Plaintiffs' claims for violation of Section 2 of the Sh erman Act, 15 U.S.C. § 2; breach of contract; breach of the implied covenant of good faith and fair dealing; violation of the Florida Antitrust Law, Fla. Stat. § 542.19; trade libel; tortious interference with contract; intentional interfer ence with prospective economic relations; negligent interference with prospective economic relations; and violation of the California Unfair Competition Law, Cal. Bus. & Profs. Code § 17200. (See document for details.) (MD JS-6, Case Terminated). (es)

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THEODORE J. BOUTROUS JR.
SBN 132099
[e-mail]
DANIEL G. SWANSON
SBN 116556
[e-mail]
MINAE YU
SBN 268814
[e-mail]
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, CA 90071-3197
Telephone: [phone]
Facsimile: 213.229.7520
CYNTHIA E. RICHMAN
(admitted pro hac vice)
[e-mail]
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036-5306
Telephone: [phone]
Facsimile: 202.530.9691

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
TRENDSETTAH USA, INC. and
TREND SETTAH, INC.,
Plaintiffs,

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JS-6

Attorneys for Swisher International, Inc.

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MICHAEL C. MARSH
(admitted pro hac vice)
[e-mail]
RYAN ROMAN
(admitted pro hac vice)
[e-mail]
AKERMAN LLP
One Southeast Third Avenue, 25th Floor
Miami, FL 33131
Telephone: [phone]
Facsimile: 305.374.5095

JULIAN W. KLEINBRODT
SBN 302085
[e-mail]
GIBSON, DUNN & CRUTCHER LLP
555 Mission St., Suite 3000
San Francisco, CA 94105-0921
Telephone: [phone]
Facsimile: 415.393.8306

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JOSHUA R. MANDELL,
SBN 225269
[e-mail]
AKERMAN LLP
725 South Figueroa Street, 38th Floor
Los Angeles, CA 90017-5438
Telephone: [phone]
Facsimile: 213.627.6342

v.
SWISHER INTERNATIONAL, INC.,
Defendant.

CASE NO. 8:14-cv-01664-JVS-DFM
JUDGMENT

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On October 14, 2014, Plaintiffs Trendsettah USA, Inc. and Trend Settah, Inc.

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(“Plaintiffs”) initiated this action against Defendant Swisher International, Inc.

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(“Defendant”), asserting nine causes of action for (1) violation of Sherman Act, 15

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U.S.C. § 2; (2) violation of Florida Antitrust Law, Fl. Stat. § 542.19; (3) Breach of

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Contract; (4) Breach of Implied Covenant of Good Faith and Fair Dealing; (5) Trade

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Libel; (6) Tortious Interference with Contract; (7) Intentional Interference with

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Prospective Economic Relations; (8) Negligent Interference with Prospective Economic

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Relations; and (9) California violation of California’s Unfair Competition Law, Cal.

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Bus. & Prof. Code § 17200 et seq. Dkt. No. 1.

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On May 19, 2015, the Court granted in part and denied in part Defendant’s motion

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for judgment on the pleadings and dismissed Plaintiffs’ claims for negligent interference

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with prospective economic relations and violation of California’s Unfair Competition

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Law, Cal. Bus. & Prof. Code § 17200 et seq. Dkt. No. 40.

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On January 21, 2016, the Court granted in part and denied in part Defendant’s

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motion for summary judgment. The Court granted summary judgment in Defendant’s

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favor on Plaintiffs’ claims for trade libel, tortious interference with contract, and

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intentional interference with prospective economic relations.

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summary judgment on Plaintiffs’ claims for violation of Section 2 of the Sherman Act,

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15 U.S.C. § 2, and violation of the Florida Antitrust Law, Fla. Stat. § 542.19. Dkt. No.

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99.

The Court denied

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On February 1, 2016, Plaintiffs abandoned their claim for violation of the Florida

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Antitrust Law, Fla. Stat. § 542.19, in their Memorandum of Contentions of Fact and Law

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pursuant to Civil Local Rule 16-4.6. Dkt. No. 133, at 13.

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On February 24, 2016, this Court entered the Final Pretrial Conference Order

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pursuant to Fed. R. Civ. P. 16, which stated that Plaintiffs plan to pursue claims for

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violation of 15 U.S.C. § 2 (Count 1); breach of contract (Count 3) and breach of the

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implied covenant of good faith and fair dealing (Count 4) and that the Final Pretrial

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Conference Order “shall supersede the pleadings.” Dkt. No. 162, at 7, 32-33. The Final
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Pretrial Conference Order did not include any of Plaintiffs’ other claims, including their

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claim for violation of the Florida Antitrust Law, Fla. Stat. § 542.19 Id.

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This action came on for trial on March 15, 2016, in Courtroom 10C of the above-

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entitled Court, the Honorable James V. Selna, United States District Judge, presiding.

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After an eight-day trial and after deliberations, on March 30, 2016, the jury returned a

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Special Verdict in favor of Plaintiffs and against Defendant on each of the four causes

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of action tried: (1) breach of contract; (2) breach of the covenant of good faith and fair

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dealing; (3) violation of Section 2 of the Sherman Act by creating or maintaining a

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monopoly through anti-competitive practices; and (4) violation of Section 2 of the

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Sherman Act by attempting to create or maintain a monopoly through anti-competitive

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practices. On Plaintiffs’ claims for breach of contract and breach of the covenant of

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good faith and fair dealing, the jury awarded $9,062,679.00. On Plaintiffs’ claims for

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monopoly and attempted monopoly under Section 2 of the Sherman Act, the jury

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awarded $14,815,494.00. Dkt. No. 206.

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Swisher moved for judgment as a matter of law or, in the alternative, for a new

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trial, on May 12, 2016. Dkt. No. 233. On August 17, 2016, the Court granted judgment

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in favor of Defendant, and in the alternative, a new trial, on Plaintiffs’ cause of action

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for violation of Section 2 of the Sherman Act by creating or maintaining a monopoly

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through anti-competitive practices. The Court granted a new trial on Plaintiffs’ cause of

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action for violation of Section 2 of the Sherman Act by attempting to create or maintain

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a monopoly through anti-competitive practices. Dkt. No. 262.

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On October 10, 2016, Defendant filed a motion for reconsideration of the Court’s

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August 17, 2016 order denying in part Defendant’s motion for judgment as a matter of

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law on Plaintiffs’ Section 2 claims, and for reconsideration of the Court’s January 21,

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2016 order denying summary judgment on Plaintiffs’ antitrust claims. Dkt. No. 268.

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On November 9, 2016, the Court granted Defendant’s motion for reconsideration of the

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Court’s January 21, 2016 order denying summary judgment on Plaintiffs’ antitrust

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claims. The Court granted summary judgment in favor of Defendant on Plaintiffs’

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antitrust claims for the reasons set forth in its order of November 9, 2016. Dkt. No. 274.

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On December 14, 2016, the Court entered judgment in favor of Plaintiffs and

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against Defendant on Plaintiffs’ claims for breach of contract and breach of the implied

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covenant of good faith and fair dealing. Dkt. No. 296. The Court entered judgment in

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favor of Defendant and against Plaintiffs on all of Plaintiffs’ other claims, including

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Plaintiffs’ claims for violation of Section 2 of the Sherman Act, 15 U.S.C. § 2; violation

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of the Florida Antitrust Law, Fla. Stat. § 542.19; trade libel; tortious interference with

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contract; intentional interference with prospective economic relations; negligent

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interference with prospective economic relations; and violation of the California Unfair

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Competition Law, Cal. Bus. & Profs. Code § 17200. Id.

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On February 8, 2019, the Ninth Circuit Court of Appeals affirmed in part and

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reversed in part this Court’s judgment and remanded the case to reinstate the jury’s

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verdict in its entirety. Dkt. No. 349.

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On July 22, 2019, Defendant moved for relief from judgment under Rule 60(b)(2),

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Rule 60(b)(3) and Rule 60(d) of the Federal Rules of Civil Procedure, or in the

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alternative, an order for expedited discovery. Dkt. No. 377. On August 19, 2019, the

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Court granted Defendant’s motion for relief under Rule 60(b)(2), Rule 60(b)(3) and Rule

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60(d) of the Federal Rules of Civil Procedure for the reasons set forth in its order, Dkt.

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No. 426, and ordered a new trial, Dkt. No. 427.

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On October 5, 2019, Plaintiffs moved for certification for interlocutory appeal of

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the Court’s August 19, 2019 order under 28 U.S.C. § 1292(b). Dkt. No. 437. On

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November 12, 2019, the Court denied Plaintiffs’ motion for certification. Dkt. No. 458.

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On November 11, 2019, Plaintiffs filed a motion for reconsideration of the Court’s

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August 19, 2019 order, or in the alternative, for relief under Rule 60(b). Dkt. No. 454.

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On November 18, 2019, Defendant moved to amend the Final Pretrial Conference Order

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entered on February 24, 2016, Dkt. No. 162, to assert two additional defenses of

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Illegality and Fraudulent Inducement. Dkt. No. 463. On January 21, 2020, the Court

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denied Plaintiffs’ motion for reconsideration, or in the alternative, for relief under Rule

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60(b) and granted Defendant’s motion to amend the Final Pretrial Conference Order to

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assert two additional defenses of Illegality and Fraudulent Inducement. Dkt. No. 483.

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The Court sua sponte certified its August 19, 2019 order for interlocutory appeal. Id.

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On January 31, 2020, Plaintiffs filed a petition for permission for interlocutory

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appeal of the Court’s August 19 order with the Ninth Circuit Court of Appeals. On

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February 3, 2020, Plaintiffs filed a motion to assign the case to the prior panel of the

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Ninth Circuit that decided the first appeal of this Action. On February 13, 2020, the

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prior panel declined to accept the petition, and, on April 23, 2020, the Ninth Circuit

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denied Plaintiffs’ petition for permission for interlocutory appeal.

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On May 1, 2020, Plaintiffs filed a petition for writ of mandamus with the Ninth

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Circuit Court of Appeals for an order directing the reassignment of the Action and

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ordering reinstatement of the jury verdict and moved to assign the case to the prior panel.

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On May 7, 2020, the prior panel declined to accept Plaintiffs’ petition. On July 21, 2020,

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the Ninth Circuit Court of Appeals denied Plaintiffs’ petition for writ of mandamus and

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stated that “[n]o further filings will be entertained in this closed case.” Dkt. No. 557-1.

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On June 22, 2020, Plaintiffs filed a second motion for relief under Rule 60(b), or

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in the alternative, reconsideration of the Court’s August 19, 2019 order. Dkt. No. 514.

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On July 31, 2020, the Court denied Plaintiffs’ motion for relief under Rule 60(b), or in

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the alternative, for reconsideration. Dkt. No. 561.

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On July 7, 2020, Defendant moved to compel discovery from Plaintiffs. Dkt. Nos.

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528, 531. On July 29, 2020, Magistrate Judge McCormick granted in part Defendant’s

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motions to compel Plaintiffs to produce documents and information responsive to

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Defendant’s discovery requests. Dkt. No. 560.

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On August 17, 2020, Plaintiffs moved to voluntarily dismiss the Action with

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prejudice pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure, asserting

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that they are unable to afford the litigation expenses of discovery or a second trial and

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intend to appeal the Court’s orders granting Defendant relief under Rule 60 and denying

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Plaintiffs’ motions for reconsideration. Dkt. No. 565. Defendant disputed Plaintiffs’

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inability to afford the litigation expenses of discovery or a second trial, contested the

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premise that appellate jurisdiction can be created through voluntary dismissal, and

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requested conditions to Plaintiffs’ voluntary dismissal to protect Defendant’s entitlement

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to seek costs and attorney’s fees and discovery relating thereto. Dkt. Nos. 574-1 and

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585.

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On August 21, 2020, Defendant moved for contempt against Plaintiffs for

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violation of Magistrate Judge McCormick’s order compelling compliance with

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Defendant’s discovery requests. Dkt. No. 572.

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On September 16, 2020, the Court granted Plaintiffs’ motion for dismissal under

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Rule 41(a)(2) of the Federal Rules of Civil Procedure on terms that the Court found

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proper, as set forth in its order. Dkt. No. 591. The Court vacated Defendant’s motion

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for contempt without prejudice and stayed pending discovery without prejudice. Id.

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The Court NOW ENTERS JUDGMENT AS FOLLOWS:

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Judgment is entered in favor of Defendant and against Plaintiffs on all of

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Plaintiffs’ claims, including Plaintiffs’ claims for violation of Section 2 of

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the Sherman Act, 15 U.S.C. § 2; breach of contract; breach of the implied

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covenant of good faith and fair dealing; violation of the Florida Antitrust

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Law, Fla. Stat. § 542.19; trade libel; tortious interference with contract;

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intentional interference with prospective economic relations; negligent

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interference with prospective economic relations; and violation of the

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California Unfair Competition Law, Cal. Bus. & Profs. Code § 17200.

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2.

The Court finds that it has not been judicially determined that Swisher is in

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default of its obligations under either of the private label agreements dated

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January 20, 2011 (as amended effective February 1, 2012), and February 2,

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2013, upon which Plaintiffs brought their claims for breach of contract and

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breach of implied covenant of good faith and fair dealing.

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Defendant is the prevailing party in this Action and Plaintiffs are not
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entitled to any relief.
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Federal Rule of Civil Procedure 54(d)(1) and Local Rule 54-3.
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Plaintiffs may not assert the fact of their voluntary dismissal as a bar to
Defendant’s recovery of costs or attorney’s fees.

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The Court shall retain continuing jurisdiction for the reasons and purposes
set forth in this Judgment and the Court’s September 16, 2020, order

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Any claim by Defendant for attorney’s fees and related nontaxable
expenses shall be presented by motion.

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As the prevailing party, Defendant shall recover costs allowable under

granting Plaintiffs’ motion for dismissal on terms found proper.
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The Court acknowledges that Plaintiffs expressly preserve their right to

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appeal the Court’s Rule 60 orders vacating the jury’s verdict and ordering

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a new trial.

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IT IS SO ORDERED.
Dated:

September 28, 2020
Hon. James V. Selna
United States District Court Judge

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