Tefft W. Smith

Henkel AG Consumer Product Advertising Litigation

• Of counsel to defense of proposed Multi-District class action attacking Henkel’s advertising for Dial soap. (Pending)

Banana Antitrust Litigation and EC Proceedings

• Lead counsel for Chiquita in investigating and securing leniency from the E.C. and cooperating with the U.S., Canada and E.C. in connection with bananas and pineapple price and volume information exchanges with other competitors and the follow-on U.S. class actions, all of which have now be favorably resolved. A subsequent challenge by the E.C. staff to revoke Chiquita’s leniency was defeated after an evidentiary hearing before an E.C. Hearing Examiner.
• Successfully resolving all direct and indirect class actions for settlement of $2.5 million and donation of $1 million to charity.
• Secured FTC clearance for Chiquita's $750 million acquisition of the "Fresh Express" Performance Food Group; Chiquita’s proposed merger with Fyffes and subsequent acquisition by the Cutrale/Safra Group (2015).

Southwire Acquisition of Coleman Cable

• Secured FTC clearance for Southwire $850 million acquisition of it competitor Coleman Cable after FTC investigation closed without a second Request based on affirmative presentations. (2014)

Rubber Chemical Antitrust Litigation

• Counsel for The Dow Chemical Company in the European Competition Commission ("E.C.") and European Union Court proceedings related to an E.C. finding of a cartel in certain Rubber Chemicals used in automobile tires and other products, and lead counsel for U.S. follow-on class action and opt-out litigation in the U.S., U.K. and Italy. All the private litigation was favorably resolved.

DRAM Pricing-Fixing Cases

• Lead trial counsel for the criminal and treble damage actions arising out of allegations that Infineon Technologies AG and other suppliers of DRAM memory products fixed prices. Responsible for all phases of the criminal investigation by the DOJ and follow-on MDL direct and state indirect class actions.
• Also lead trial counsel for defense of $1 billion antitrust claim by Rambus against Infineon for alleging conspiracy with certain other DRAM producers to boycott Rambus' RDRAM concept product.

Plastic Additives Antitrust Price-Fixing Litigation

• Lead counsel for The Dow Chemical Company in DOJ criminal investigation (closed with no action) and follow-on federal court civil class action alleging price fixing in the plastics additives industry. Class certification defeated after evidentiary hearing.

Synthetic Rubber Price-Fixing Cases

• Lead counsel for The Dow Chemical Company for the issues arising out of its interest in a joint venture with duPont - duPont Dow Elastomers LLC - which was the subject of a DOJ criminal plea agreement and E.C. investigation and follow-on civil class actions, and for resolution of issues with duPont over responsibility for the DOJ and any other fines and civil damage payments.

Representation of a Leading Property and Casualty Insurance Company

• Lead trial counsel for constitutional attack on Texas statute prohibiting client from vertically integrating into the collision repair services market, as protectionist legislation invalid under the Commerce Clause. Partial victory at trial, affirmed by 5th circuit, with Petition for Certiorari denied.

Citric Acid/Food Additives Price-Fixing Cases

• Lead trial counsel for the criminal and treble damage actions arising out of the ADM food price-fixing investigation by the Department of Justice for H&R, a subsidiary of Bayer AG, the world's largest citric acid producer. Handled all phases of the criminal investigation, securing a reduced fine through cooperation with the DOJ and successfully settled the treble damage class actions and major corporate purchaser opt-out claims and defeated state indirect purchases claims.

SC Johnson Acquisition of Bayer AG's Insecticides Business

• Lead deal and antitrust counsel for Johnson's acquisition of Bayer's worldwide insecticide business. Johnson's Raid and Off brands and Bayer's Baygon and Autan brands were number 1 and 2 in most countries in the world. The transaction involved antitrust filings in 48 countries, with in-depth clearance reviews in all of the major countries, all managed and coordinated by Kirkland.

Federal Trade Commission v. MSC.Software Corporation

• Brought in by client to be lead trial counsel after the FTC decided to challenge two consummated mergers allegedly resulting in an MSC monopoly over certain Computer Aided Engineering (CAE) software used in the automotive and aerospace industries. Settled with favorable consent order on the night before opening statements.

Dean Foods Company/Suiza Corporation Merger

• Lead counsel for Dean Foods in obtaining clearance of its merger into Suiza, combining the Number 1 and 2 dairies into a $10 billion beverage company, after an 8 month Department of Justice investigation, substantial dairy farmer and Congressional opposition.

BellSouth v. U.S. Electronics

• Lead trial counsel in a $1 billion contract damages and non-compete litigation with USE's claimed "exclusive distributor" of BellSouth-branded telecommunications equipment, including cell phones and Internet-related devices. Won trial before Federal Judge in Atlanta on cover defense resulting in prompt favorable settlement.

Kraft/National Cheese Exchange Price Fixing Litigation

• Lead trial counsel in defeating a series of 10 federal and state class actions on behalf of dairy farmers claiming that Kraft either itself or in conspiracy with others, monopolized and manipulated the sale of cheese on the National Cheese Exchange thereby driving down the price of milk, the primary input to cheese nationwide. This litigation began in 1994 and all cases to date have been defeated, with one California case outstanding on remand after reversal by the 9th Circuit, the grant of a motion to dismiss. The NCE litigation has involved extended summary judgment hearings and appellate arguments in the Illinois, Wisconsin and California state and federal courts, and a petition for certiorari (denied).
• Trial counsel for five-week preliminary injunction trial brought by two competitors challenging the KitchenAid sale, WCI v. Whirlpool, C 85-472 (N.D. Ohio). Injunction defeated, with affirmance by the 6th Circuit.

BP Amoco Corporation

• Trial counsel for Amoco's successful eight-year defense of the FTC's suit to break up the eight largest oil companies, In Re Exxon, FTC Docket 8934. Collateral litigation, Standard v. FTC (N.D. Ind.), result in dismissal of the FTC's Docket 8934 case.
• Lead trial counsel for multiple arbitrations and trials and general counseling in connection with the workout of Amoco's insurance subsidiary Imperial Casualty and Life Insurance Company's $1.5 billion in reinsurance obligations.
• $30 million international arbitration award after two-week trial.
• Lead trial counsel for numerous preliminary injunction and other Petroleum Marketing Practices Act (PMPA) disputes with Amoco Dealers and Jobbers.

General Motors Engine Interchange Litigation

• Trial counsel for the defense and twelve-week jury trial of the nationwide federal class action challenging GM's use of Chevrolet-produced V-8 engines in Oldsmobiles. Jury returned verdict for GM on most purchasers; JNOV as to the remainder.

Rand McNally Company

• Lead trial counsel for monopolization of Florida map market, unfair trade practices and breach of contract action by map distributor, for two week jury trial in Clearwater, Florida state court, resulting in nominal contract damages and settled before appeal.

International Harvester ("IH") (Navistar)

• Trial counsel for monopolization and Robinson-Patman Act claims that IH monopolized the market in Long Island and New York City for the sale and lease of IH trucks, brought by an IH dealer and tried for one month before a jury in Federal Court in Brooklyn, resulting in a jury verdict for IH.

First National Bank of Chicago

• Counsel for First National Bank in securing repayment of $135 million owned by the Chicago Transit Authority to bondholders for which the Bank was trustee. Involved eight years of ongoing litigation including three trials, and 2 arguments in the Illinois Appellate Court and an affirmance before the Illinois Supreme Court.

Fife v. Continental Illinois Venture Capital Corp. (W.D. Okla.)

• Lead trial counsel for one-week preliminary injunction trial of efforts to enjoin Continental Bank's venture capital subsidiary from selling its stock to a takeover bidder.

Terra Industries, Inc.

• Lead trial counsel for successful resolution of vertical and horizontal pesticide price fixing allegations by the Florida Attorney General and follow-on nationwide private class actions. Successfully defeated class action motion after extensive evidentiary hearing.

FMC Corporation

• Lead counsel for FMC in connection with its joint venture with Harsco, combining its BMY Division with FMC's Ground Combat Division, obtaining the first government clearance of a substantial defense industry consolidation and setting the standards for DOD/DOJ/FTC coordination in the antitrust review of future defense industry transactions.

Federal Trade Commission/Weyerhaeuser Menasha Acquisition

• Lead trial counsel for Weyerhaeuser in defeating FTC Preliminary Injunction charges that Weyerhaeuser's acquisition of a corrugated medium mill would allow it to monopolize and lessen competition in that product market for the area West of the Rocky Mountains, after a one week trial in the District Court of D.C., affirmed by the D.C. Circuit, then winning a three month FTC Administrative trial, and successfully defeating FTC complaint counsel’s appeal to the full Commission.

Federal Trade Commission/Heinz Baby Food Merger

• Lead trial counsel for Beechnut in successfully defeating the FTC's request for a preliminary injunction at trial despite claimed industry consolidation from 3 firms to 2 (reversed on appeal).

Jerry Lee Smith v. United States

• Argued appeal of federal obscenity law conviction before the United States Supreme Court (431 U.S. 291), briefs and argument included the Landmark Briefs and Arguments of the Supreme Court of the United States: Constitutional Law edited by Profs. Kurland & Casper (University Publications of America).