Raising Cane
By Rob Perez
Sunday, November 11, 2001
If the state's $2 billion antitrust lawsuit against Hawaii oil companies goes to trial, the defendants don't want a jury of local residents deciding the case. Oil companies’ secret
move is puzzlingThey apparently don't think people here can be impartial.
Or the companies, accused of conspiring to keep Hawaii gas prices artificially high, have other reasons for asking a federal judge to move the case outside the state.
What those reasons are, though, are secret.
In a case of such great public interest, the public is being kept in the dark about the arguments the oil companies are using to seek a change of venue.
Chevron Corp., Shell Oil Co., Texaco Inc., Union Oil Co. and Unocal Corp. filed their joint motion Oct. 30, but the document is under seal.
That means it's confidential. You can't read it.
Legal experts contacted by the Star-Bulletin say they've never heard of any cases in which that type of motion was filed under wraps.
"I think you've got one for the record books," said Los Angeles media attorney Doug Mirell, who has dealt with many lawsuits involving change-of-venue requests. "It seems on its face to be somewhat bizarre."
Typically, such requests are part of the public record. The arguments are made openly for anyone to see. They often involve issues related to whether heavy pretrial publicity prevents a defendant from getting a fair trial.
Sometimes the arguments will focus on whether switching the jurisdiction is justified because of the location of evidence or witnesses.
But such arguments usually don't require disclosing proprietary information -- the main reason for the need for confidentiality in civil cases.
That's what's so puzzling about this motion being so secret.
"It's hard to see where it would fall under seal," said Erwin Chemerinsky, a law professor at the University of Southern California. "I've never seen this (happen)."
"That's pretty extraordinary," agreed Kevin Johnson, associate dean of the University of California law school in Davis.
The oil companies aren't any help in explaining the matter. Local representatives for the defendants didn't return Star-Bulletin calls seeking comment.
A court clerk said that when the parties to the lawsuit ask that a document be sealed, it is automatically done so under terms of a protective order approved by the court after the antitrust complaint was filed three years ago.
Unless someone challenges a seal, the court doesn't make independent determinations on whether a document fits the scope of the protective order, the clerk said.
In this case, it would be up to the state or an outside party to challenge the appropriateness of sealing the change-of-venue motion.
An attorney for the state declined comment.
The state sued the oil companies in October 1998 alleging that they conspired to divvy up the local gasoline market to keep wholesale prices artificially high, resulting in huge profits going back years. The state also alleged that the defendants fraudulently concealed the collusion. The companies have strongly denied the charges.
This case is so complex that literally thousands of documents have been filed with the court. The bulk of the documents have been filed under seal, raising questions of whether the protective order has been interpreted too broadly by the oil companies.
All of their main motions for summary judgment, for instance, are confidential. In summary judgment motions, a defendant seeks dismissal of specific charges or the entire lawsuit on the grounds the evidence is so flimsy the case doesn't even merit going to trial.
Mirell, the Los Angeles attorney, said it is not uncommon for some summary judgment documents revealing confidential trade secrets or other proprietary information to be kept under seal.
But he said keeping all the summary judgment motions from the public is "rather extraordinary."
Chemerinsky, speaking in general terms, said there is a lot of abuse of the sealing practice because parties to lawsuits don't want embarrassing information revealed publicly.
In the Hawaii case, the public for the first time will have the opportunity to hear arguments about the companies' summary judgment motions at Thursday and Friday hearings in Judge Samuel P. King's courtroom. Those hearings will deal with motions related to charges of conspiracy, price-fixing and refusal to deal.
On Jan. 17 and 18, motions related to the fraudulent concealment allegations and other related charges are scheduled to be heard.
If the case goes to trial, the scheduled trial date of Feb. 5 is expected to be pushed back.
Where that trial will be held, though, remains unclear. The change-of-venue motion likely will be heard in January.
Despite the oil companies' apparent distrust, Hawaii residents should be given the chance to decide the case. They are capable of evaluating the evidence and rendering a fair verdict -- no matter what the companies' secret motion says.
Star-Bulletin columnist Rob Perez writes on issues
and events affecting Hawaii. Fax 529-4750, or write to
Honolulu Star-Bulletin, 500 Ala Moana Blvd., No. 7-210,
Honolulu 96813. He can also be reached
by e-mail at: rperez@starbulletin.com.
