Jack Russell Terrier Network of Northern Califonia

Download PDF File of this document
The forms stored in Portable Document Format (PDF) require the Adobe Acrobat Reader (version 3.0 or higher). This reader can be downloaded for free from Adobe's web site.

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION

JACK RUSSELL TERRIER NETWORK, )
) NO. C 98-20932 JW
PLAINTIFF, )
) PAGES 1 - 20
VS. )
)
JACK RUSSELL TERRIERS CLUB OF )
AMERICA, ET AL., )
)
DEFENDANTS. ) MOTION
_________________________________ )

SAN JOSE, CALIFORNIA
MONDAY, MAY 21, 2001

TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE JAMES WARE
UNITED STATES DISTRICT COURT JUDGE

APPEARANCES:

FOR PLAINTIFF: COUDERT BROTHERS
FOUR EMBARCADERO CENTER
SUITE 3300
SAN FRANCISCO, CALIFORNIA 94111

BY: VICTORIA BRIEANT, ATTORNEY AT LAW

FOR DEFENDANTS: BURNHAM BROWN
1901 HARRISON STREET
OAKLAND, CALIFORNIA 94612

BY: ERIC R. HASS, ESQ.

REPORTED BY: DYNELE SIMONOV, CSR NO. 11211
CERTIFIED PRO TEM REPORTER, USDC

COMPUTERIZED TRANSCRIPTION BY ECLIPSE NT

DYNELE SIMONOV, CSR NO. 11211
CERTIFIED PRO TEM REPORTER - U.S. DISTRICT COURT

1 THE CLERK: IN THE MATTER OF CIVIL 98-20932, JACK

2 RUSSELL TERRIER NETWORK VERSUS JRTCA. PLAINTIFF'S MOTIONS FOR

3 APPROVAL OF SETTLEMENT AGREEMENT.

4 COUNSEL, STATE YOUR APPEARANCES.

5 MS. BRIANT: VICTORIA BRIEANT OF COUDERT BROTHERS FOR

6 THE JACK RUSSELL TERRIERS OF NORTHERN CALIFORNIA. GOOD

7 MORNING.

8 MR. HAAS: GOOD MORNING, YOUR HONOR. ERIC HAAS FOR

9 THE DEFENDANT JACK RUSSELL TERRIERS CLUB OF AMERICA, JRTCA.

10 THE COURT: VERY WELL. IS THERE ANYONE HERE

11 REPRESENTING GREAT BRITAIN?

12 MS. BRIANT: NO, YOUR HONOR, ALTHOUGH THEY ARE AWARE

13 OF THE MOTION. THEY HAVE SEEN THE PLEADINGS. THEY ARE

14 HONORING THE SETTLEMENT AGREEMENT. THEY HAVE ALREADY DONE A

15 NUMBER OF THE THINGS REQUIRED UNDER IT AND THEY HAVE DROPPED

16 THE CONFLICTING ORGANIZATION RULE FROM THE CONSTITUTION BYLAWS,

17 AFFILIATE AGREEMENTS AND WEB ASSIGNMENT. THEY ARE SETTLING AN

18 AGREEMENT WHICH IS JUNE 14TH BEFORE JUDGE INFANTE. THEY ARE

19 HONORING IT, BUT THEY DIDN'T SEND SOMEBODY TO THIS. THEY DID

20 HAVE COUNSEL SIGN OFF ON THE AGREEMENT, THE ESSENCE OF THE

21 SETTLEMENT IS THAT THEY WOULD DELETE SOME LANGUAGE FROM THEIR

22 CONSTITUTION, AS I UNDERSTAND IT, CONSTITUTION, BYLAWS AND

23 AFFILIATE AGREEMENTS.

24 THE COURT: WHAT'S THE EFFECT OF THAT LANGUAGE?

25 MS. BRIANT: THAT IS WHAT IS CALLED IN THIS CASE THE

DYNELE SIMONOV, CSR NO. 11211
CERTIFIED PRO TEM REPORTER - U.S. DISTRICT COURT

1 CONFLICTING ORGANIZATION RULE, WHICH BASIC PENALIZES DOGS AND

2 THEIR OWNERS IF THE DOGS ARE AFFILIATED WITH KENNEL CLUBS, ALL

3 THE BREED CLUBS, WHICH IN THE UNITED STATES CONSISTS OF THE

4 AMERICAN KENNEL CLUB. THE GB, WHICH IS THE QUOTE, UNQUOTE, THE

5 MOTHER CLUB OR PARENT CLUB. MOTHER CLUB IS MORE ACCURATE HAD

6 UNDER ITS OLD CONSTITUTION IMPOSED THE CONFLICTING ORGANIZATION

7 RULE ON ITS AFFILIATES, JUST AS THE JRTCA IMPOSES THE

8 RESTRICTIONS ON ITS AFFILIATES. SO WHAT WE HAVE DONE BY THIS

9 SETTLEMENT IS WE HAVE REMOVED THE COERCIVE ELEMENT OF THE JRTCA

10 BEING ABLE TO SAY WE HAVE THE CONFLICTING ORGANIZATION BECAUSE

11 OUR MOTHER CLUB REQUIRES US TO HAVE IT.

12 BASICALLY THE JRTCA HAD TWO REASONS IT HAS GIVEN IN

13 THIS CASE FOR HAVING THE RULE WE CHALLENGE AS ANTI-COMPETITIVE

14 AND UNFAIR LANHAM ACT. ONE BEING THAT GB MAKES US DO IT AND

15 THE OTHER IS THAT IT IS IN THE DOG'S BEST INTEREST.

16 UNDER THIS SETTLEMENT AGREEMENT, THE GB DROPS THE

17 RULE AND DOES NOT REQUIRE ITS AFFILIATES TO HAVE IT ANYMORE.

18 BECAUSE THE SETTLEMENT AGREEMENT WAS A COMPROMISE AND IT IS A

19 COMPROMISE IN MANY WAYS, THE GB DIDN'T FEEL THAT IT HAD THE

20 POLITICAL POWER OR WILL TO IMPOSE A RULE ON ITS AFFILIATES

21 SAYING YOU WILL NOW DROP THE CONFLICTING ORGANIZATION RULE. IT

22 FELT IT COULD ONLY GO SO FAR AS TO SAY WE ARE DROPPING IT AND

23 YOU ARE NOT REQUIRED TO HAVE IT ANYMORE.

24 SO THE -- AND THEN WE HAVE COOPERATIVE EDUCATIONAL

25 EXCHANGES, EXCHANGES OF VIEWS AS PART OF THE SETTLEMENT

DYNELE SIMONOV, CSR NO. 11211
CERTIFIED PRO TEM REPORTER - U.S. DISTRICT COURT

1 AGREEMENT AND THEN THEY WILL ASSIST THE JRTC, THE NETWORK IN

2 THE LAWSUIT IN TERMS OF PROVIDING A REPRESENTATIVE AT THE

3 SETTLEMENT CONFERENCE AND PROVIDING A WITNESS AT TRIAL, IF

4 NECESSARY.

5 THEN PART OF THIS COMPROMISE WAS OUR REQUEST TO HAVE

6 IT MADE AN ORDER OF THE COURT TO FACILITATE ENFORCEMENT AND

7 THAT IS SOMETHING THAT THE JRTCA HAS OBJECTED TO HERE. NOW,

8 ALSO PART OF THIS COMPROMISE IS THE GB HAS SAID THEY DON'T

9 REALLY BELIEVE THEY ARE SUBJECT TO THE PERSONAL JURISDICTION OF

10 THIS COURT. WE THINK THAT WE CAN IF WE HAD TO GET INTO A FIGHT

11 WITH THEM, WE THINK WE CAN OVERCOME THAT.

12 LAST SUMMER WHEN WE BRIEFED WHETHER THE COMPLAINT

13 SHOULD BE AMENDED TO NAME THEM AS A PARTY, WE DID PUT IN

14 EVIDENCE ABOUT HOW THEY HAVE SENT MORE THAN 14 JUDGES TO THE

15 U.S. IN RECENT YEARS, LAST FIVE OR EIGHT YEARS OR SOMETHING

16 LIKE THAT TO JUDGE JRTCA EVENTS. THEY REGULARLY COME TO

17 CALIFORNIA. THEY REGULARLY COME TO THE U.S. AS PART OF ITS

18 BUSINESS. SO AS A COMPROMISE, WE MADE THIS -- WE ASK TO MAKE

19 IT AN ORDER OF THE COURT AND ALSO AS PART OF THIS COMPROMISE,

20 THEY HAVE THE RIGHT TO RAISE THE PERSONAL JURISDICTION DEFENSE.

21 IT IS JUST THAT WE THINK WE CAN OVERCOME THAT. WE DON'T THINK

22 THAT IS A REASON FOR THIS COURT NOT TO MAKE IT A COURT ORDER,

23 JUST BECAUSE THEY ARE PRESERVING ONE MORE DEFENSE.

24 WE ARE HOPEFUL, YOUR HONOR, NEVER TO HAVE TO COME BACK

25 IN AND ENFORCE IT. BASICALLY IT REQUIRES THAT THEY DROP THE

DYNELE SIMONOV, CSR NO. 11211
CERTIFIED PRO TEM REPORTER - U.S. DISTRICT COURT

1 RULE FOR THREE YEARS.

2 THE COURT: SO THEY ARE ABLE TO REINSTATE IT?

3 MS. BRIANT: THREE YEARS DOWN THE ROAD THEY COULD

4 REINSTATE IT. SO IT IS ONLY A THREE-YEAR PROHIBITION. WE ARE

5 HOPING THAT IN THE COURSE OF THREE YEARS THIS BUSINESS WILL

6 NORMALIZE.

7 THE COURT: LET'S HEAR WHAT THE OPPOSITION IS.

8 MR. HAAS: WELL, I HAVE STATED MY BASIS FOR OPPOSING

9 THIS MOTION IN THE PAPERS, YOUR HONOR. DESPITE THE COURTESIES

10 THAT ARE CHARACTERIZED BETWEEN COUNSEL HERE BEFORE YOU, THERE

11 IS WAR GOING ON BETWEEN OUR CLIENTS WITH REGARD TO WINNING THE

12 HEARTS AND SOULS OF VARIOUS DOG OWNERS AS TO WHETHER THE

13 CONFLICTING ORGANIZATION RULE IS OR IS NOT GOOD FOR THE DOG. I

14 AM NOT REALLY SURE WHAT THE REAL MOTIVATION FOR ASKING THIS

15 COURT TO MAKE THE SETTLEMENT AGREEMENT AN ORDER OF THE COURT

16 IS, BUT ONE PLAUSIBLE EXPLANATION IS THAT THIS IS SIMPLY

17 PROPAGANDA SO THAT THIS RULING CAN BE DISTRIBUTED TO ALL DOG

18 OWNERS ON THE INTERNET. IF THE COURT IS NOT AWARE, ALL THESE

19 PAPERS AND THIS MOTION AND MOST PAPERS IN THIS CASE ARE POSTED

20 ON THE INTERNET BY PLAINTIFF, NORTHERN CALIFORNIA CLUB, AND

21 THERE IS A CONSTANT DIALOGUE GOING ON ON THE INTERNET REGARDING

22 WHAT THE PARTICULAR MOTIONS ARE ABOUT AND WHAT THE SIGNIFICANCE

23 ARE AND WHO IS NAMELY REFERRED TO IN VARIOUS FOOTNOTES AND SO

24 FORTH.

25 I THINK THAT ANOTHER PLAUSIBLE EXPLANATION FOR WHERE

DYNELE SIMONOV, CSR NO. 11211
CERTIFIED PRO TEM REPORTER - U.S. DISTRICT COURT

1 WE ARE IS THAT THE GREAT BRITAIN CLUB HAS BEEN DUPED BY THE

2 PLAINTIFF INTO THIS SETTLEMENT. THERE IS NO EVIDENCE BEFORE

3 THE COURT EXACTLY WHAT THE MAKEUP OF THE GREAT BRITAIN CLUB IS,

4 AND I CAN REPRESENT TO THE COURT THAT I HAVE ANY PERSONAL

5 KNOWLEDGE ABOUT WHAT THE MAKEUP OF THE GREAT BRITAIN CLUB IS

6 BECAUSE WE HAVEN'T DONE ANY DISCOVERY ON THAT. ALL I KNOW IS

7 WHAT I HAVE BEEN TOLD. BUT IT IS MERELY A STRONG GROUP OF

8 ENGLISHMEN, CERTAINLY, UNDER 100, PERHAPS UNDER50. THEY ARE

9 TRULY TERRIER MEN, THEY TRULY GO OUT IN THE FIELD WITH THEIR

10 DOGS AND ASSIST OTHER HOUNDS IN HUNTING IN ENGLISH COUNTRYSIDE.

11 THEY ARE CERTAINLY NOT INSURED. THEY CERTAINLY CANNOT AFFORD

12 COUNSEL TO COME IN AND MAKE A -- TAKE POSITIONS AND ENGAGE IN A

13 FULLY LITIGATED CONTEST OF THE PROS AND CONS OF THE CONFLICTING

14 ORGANIZATION.

15 THE SETTLEMENT WAS ACHIEVED BEFORE YOUR HONOR ISSUED

16 THE ORDER ON THE TRAINING, THE ANTITRUST ISSUES DISPOSING OF

17 SEVEN COUNTS OF THE PLAINTIFF'S COMPLAINT WITH PREJUDICE.

18 CERTAINLY, ALTHOUGH I AM NOT PRIVY TO ANY OF THE SETTLEMENT

19 NEGOTIATIONS THAT WENT ON, I CAN TELL YOU THAT EARLIER

20 CORRESPONDENCE, WHICH IS IN THE RECORD, IN THE CONTEXT OF OTHER

21 MOTIONS WAS VERY THREATENING FROM THE PLAINTIFF TO THE GREAT

22 BRITAIN CLUB CITES THINGS LIKE THE TREATY OF PARIS AND

23 SUGGESTING THAT THEIR ACTIVITIES IN SUPPORTING THIS CONFLICTING

24 ORGANIZATION RULE AND IMPOSING THIS CONFLICTING ORGANIZATION

25 RULE DID VIOLATE AMERICAN LAW AND THAT THEY WOULD BE HELD

DYNELE SIMONOV, CSR NO. 11211
CERTIFIED PRO TEM REPORTER - U.S. DISTRICT COURT

1 ACCOUNTABLE IN THIS COURT FOR THOSE ACTIVITIES THAT THE COURT

2 HAS NOW DETERMINED CERTAINLY DON'T VIOLATE THE ANTI-TRUST I

3 DON'T KNOW AT THIS POINT WHERE WE ARE GOING WITH THE LANHAM ACT

4 AND SO FORTH HAS YET TO BE DETERMINED.

5 THE COURT: LET ME CLARIFY TWO THINGS. FIRST OF ALL,

6 THE JACK RUSSELL TERRIER CLUB OF GREAT BRITAIN WAS NAMED AS A

7 DEFENDANT IN THE CASE; IS THAT RIGHT?

8 MR. HAAS: IN PLAINTIFF'S MOTION THE THIRD AMENDED

9 COMPLAINT, THAT'S CORRECT, YOUR HONOR.

10 THE COURT: I HAVEN'T STUDIED MY ORDER CLOSER. I WAS

11 DEALING MORE WITH THE MERITS OF IT THAN THE PARTIES. THERE HAS

12 BEEN NO FORMAL APPEARANCE AND OBJECTION TO THE PERSONAL

13 JURISDICTION BY THE GREAT BRITAIN DEFENDANT, CORRECT?

14 MS. BRIANT: CORRECT, YOUR HONOR.

15 THE COURT: BUT ON THE MERITS, SOME OF THE CLAIMS WERE

16 DISMISSED?

17 MS. BRIANT: CORRECT, YOUR HONOR.

18 THE COURT: BUT SOME OF THE CLAIMS AGAINST THE GREAT

19 BRITAIN REMAIN?

20 MS. BRIANT: CORRECT.

21 THE COURT: WHAT CLAIMS ARE THOSE?

22 MS. BRIANT: ALL THE SAME COMPLAINTS REMAIN AGAINST

23 THE JRTCA AND THE CALIFORNIA AFFILIATES. THAT IS A VIOLATION

24 OF THE LANHAM ACT AND VIOLATION OF 17 200, CALIFORNIA BUSINESS

25 PROFESSIONS CODE.

DYNELE SIMONOV, CSR NO. 11211
CERTIFIED PRO TEM REPORTER - U.S. DISTRICT COURT

1 THE COURT: SO THOSE CLAIMS REMAIN AGAINST GREAT

2 BRITAIN AS WELL AS THE AMERICA GROUP?

3 MS. BRIANT: CORRECT.

4 MR. HAAS: CORRECT.

5 THE COURT: SO THE GREAT BRITAIN GROUP COMES TO THE

6 PLAINTIFF AND SAYS TO THE EXTENT THAT ANYONE IS SAYING THAT WE

7 ARE IMPOSING THIS ANTI-COMPETING ORGANIZATION CLAUSE, THAT WE

8 ARE IMPOSING IT AS THE MOTHER ORGANIZATION. WE WANT TO SETTLE

9 THAT AND SAY WE ARE NOT IMPOSING IT, WE WANT TO WALK AWAY FROM

10 IT AND WANT THE COURT TO -- LET'S ASSUME SINCE THEY ARE A PARTY

11 TO THE CASE AND THEY ARE AGREEING TO A SETTLEMENT. I HAVE GOT

12 SOMETHING TO SAY ABOUT IT. I AM ALSO WONDERING ABOUT THEIR

13 RESERVATION OF A CLAIMED LACK OF PERSONAL JURISDICTION. IT

14 SEEMS TO ME BY ENTERING INTO A SETTLEMENT, GIVING THIS COURT

15 THE RIGHT TO ENFORCE THAT SETTLEMENT, EVEN IF IT ONLY LASTS FOR

16 THREE YEARS, THAT SUBMITS THEM TO THE JURISDICTION OF THIS

17 COURT.

18 MS. BRIANT: WELL, YOUR HONOR, THAT'S SOMETHING THAT

19 IF IT WERE NOT SEPARATELY RAISED WITHIN THE AGREEMENT, IT WOULD

20 BE DEEMED TO BE WAIVED. PERSONAL JURISDICTION WOULD BE DEEMED

21 TO BE WAIVED. IT CAN STILL BE ACCEPTED AS REMAINING DEFENSE.

22 IT CAN BE RAISED LATER. AS LONG AS IT IS RAISED, THERE IS NO

23 PERSONAL JURISDICTION, IT CAN BE LEFT. BUT THE PARTIES CAN

24 AGREE THAT IT IS A DEFENSE THAT STILL COULD STILL BE RAISED

25 LATER RATHER THAN WAIVED. NOW, THEY STILL HAVE TO COME FORWARD

DYNELE SIMONOV, CSR NO. 11211
CERTIFIED PRO TEM REPORTER - U.S. DISTRICT COURT

1 WITH THE PROOF. IN THE EVENT THAT WE HAVE TO COME IN ON AN

2 ENFORCEMENT MOTION, THEY STILL HAVE TO COME FORWARD WITH THE

3 EVIDENCE THAT THEY ARE NOT FOUND IN THIS JURISDICTION OR THIS

4 COUNTRY.

5 THE COURT: IN OTHER WORDS, THEY ARE PRESERVING THEIR

6 RIGHT TO SAY WE DON'T BELIEVE THE COURT HAS PERSONAL

7 JURISDICTION. I AM JUST SAYING THAT IF THEY ARE GOING TO ENTER

8 INTO A SETTLEMENT IN THIS LITIGATION, GIVING ME JURISDICTION

9 OVER IT, TO ENFORCE IT FOR PURPOSES OF THIS LITIGATION, THAT IS

10 GOING TO BE VIEWED BY THE COURT AS SUBMITTING TO THE

11 JURISDICTION OF THE COURT.

12 MS. BRIANT: WE EXPLAINED THAT TO THEM, YOUR HONOR.

13 THE COURT: NOW, LET ME GO BACK TO -- THE OBJECTION IS

14 WHAT, AGAIN? THAT IF THEY ARE A PARTY TO THE CASE AND THEY ARE

15 REACHING THE SETTLEMENT, IF IT IS A COERCIVE SETTLEMENT,

16 SOMEONE CAN ATTACK IT, BUT I DIDN'T READ ANYTHING IN THIS THAT

17 YOU MIGHT TAKE A POSITION THAT YOU ARE NOT ALLIED WITH GREAT

18 BRITAIN, BUT IF IT IS A SEPARATE ORGANIZATION THAT WANTS TO

19 SETTLE WITH THE PLAINTIFF, WHY SHOULDN'T THEY BE ABLE TO?

20 MR. HAAS: NO OBJECTION TO THE SETTLEMENT ITSELF.

21 THIS IS CLEARLY SOMETHING THAT ANY TWO LITIGANTS CAN CAN DO.

22 THE COURT: WHAT'S THE OBJECTION, THE COURT HAVING

23 ANYTHING TO DO WITH IT?

24 MR. HAAS: YES, CONVERTING THIS PRIVATE SETTLEMENT

25 AGREEMENT INTO THE AN ORDER OF THE COURT AND QUOTE ALL THAT

DYNELE SIMONOV, CSR NO. 11211
CERTIFIED PRO TEM REPORTER - U.S. DISTRICT COURT

1 THAT ENTAILS.

2 THE COURT: WHAT DOES THAT ENTAIL? IT JUST SAYS THAT

3 THEY WILL REMOVE IT FROM THEIR BYLAWS. IF THEY PUT IT BACK IN,

4 I CAN DO SOMETHING TO THEM, BUT THAT'S IT, ISN'T IT?

5 MR. HAAS: NO. THEN THERE ARE OTHER PROVISIONS THAT

6 PRECLUDE THE GREAT BRITAIN CLUB FROM VARIOUS FORMS OF

7 UNSPECIFIED CONDUCT SIMPLY GENERALLY DESCRIBED AS ANYTHING THAT

8 MAY CONSTITUTE A BOYCOTT UNDER AMERICAN LAW.

9 THE COURT: SO WHY ISN'T THAT A GOOD IDEA?

10 MR. HAAS: WELL, I WOULD THINK THE COURT WOULD HAVE

11 DIFFICULTY ENFORCING PRECISELY WHAT CONDUCT IT IS GOING TO

12 ENJOIN OR RESTRAIN WHEN PLAINTIFF COMES BACK HAVING THIS ORDER

13 IN HAND AND TELLING YOU THAT SOMETHING THAT THE GB CLUB HAS

14 DONE IS IN VIOLATION.

15 THE COURT: I FACE THOSE BRIDGES WHEN I COME TO THEM.

16 MS. BRIANT: YOUR HONOR, IF IT IS NOT MADE AN ORDER OF

17 THE COURT AND THE GB WERE TO BREACH THE AGREEMENT, THEN I HAVE

18 TO FILE A WHOLE NEW COMPLAINT HERE NOTED AS A RELATED CASE AND

19 BASICALLY MULTIPLY THE PROCEDURAL PROCEEDINGS. IF IT IS AN

20 ORDER OF THE COURT AS PART OF THE SETTLEMENT IN THIS CASE,

21 WHICH IS WHAT WE INTENDED, AND THEY BREACH IT, IT IS A MOTION

22 FOR ENFORCEMENT HERE. IT IS MUCH LESS EXPENSIVE FOR MY CLIENT,

23 IT IS MORE SPEEDIER, IT IS ACTUALLY SPEEDIER FOR THE GB AND

24 LESS EXPENSIVE AND THEY WERE REPRESENTED BY COUNSEL. YOU WILL

25 SEE THAT THE AGREEMENT IS SIGNED AND APPROVED BY RANDALL

DYNELE SIMONOV, CSR NO. 11211
CERTIFIED PRO TEM REPORTER - U.S. DISTRICT COURT

1 JERGENSON, A LAWYER IN CHICAGO, HE ALSO HAPPENS TO BE A JACK

2 RUSSELL OWNER. HE NEGOTIATED ON BEHALF OF THE GB AS WELL AS

3 HAVING CONVERSATIONS BETWEEN THE PRINCIPALS.

4 MR. HAAS' POINT THAT THE G B IS NOT ENSURED, THE GB

5 DOESN'T HAVE A LOT OF MONEY, THE GB DOESN'T WANT TO FIGHT,

6 PEOPLE MAKE SETTLEMENT ON THAT BASIS ALL THE TIME.

7 THE COURT: ARE YOU CONCERNED THAT SOMEHOW THE

8 SETTLEMENT WILL IMPLICATE YOUR PAST CONDUCT, BECAUSE I CAN MAKE

9 SURE MY ORDER SAYS NOTHING IN THIS ORDER APPROVING THIS

10 SETTLEMENT IS INTENDED TO REFLECT A RULING WITH RESPECT TO PAST

11 CONDUCT, BECAUSE THE SETTLEMENT SAYS WE ARE GOING TO REMOVE IT

12 PERSPECTIVELY FROM OUR CONSTITUTION AND TO THE EXTENT THAT YOU

13 NOW NEED TO SAY, OKAY, THAT HAS BEEN REMOVED FROM OUR ABILITY

14 TO RELY ON IT, YOU DON'T WANT TO HAVE THAT PREJUDICE YOU IN ANY

15 WAY IN THE LITIGATION, IS THAT YOUR CONCERN?

16 MR. HAAS: THAT IS CERTAINLY ONE OF THEM, YOUR HONOR,

17 AND LANGUAGE TO THAT EFFECT WOULD BE WELCOME.

18 THE COURT: WHY WOULD THAT BY SOMETHING THAT ISN'T AS

19 A MATTER OF COURSE?

20 MS. BRIANT: THAT WOULD BE FINE, YOUR HONOR, AS LONG

21 AS IT IS SAID IT WOULD HAVE EFFECT EITHER WAY, IT NEITHER

22 SANCTIONS THEIR PRIOR CONDUCT NOR PENALIZES IT.

23 MR. HAAS: MS. BRIANT MADE A COMMENT EARLIER THAT I

24 DON'T AGREE WITH OR MADE AN INFERENCE THAT I DON'T AGREE WITH

25 AND THAT IS THAT THE TERMS OF THIS SETTLEMENT HAVE NO IMPACT ON

DYNELE SIMONOV, CSR NO. 11211
CERTIFIED PRO TEM REPORTER - U.S. DISTRICT COURT

1 THE ACTIVITIES OF MY CLIENT, THE JACK RUSSELL TERRIER CLUB OF

2 AMERICA. SIMPLY SHE MAKES THE COMMENT THAT THE GREAT BRITAIN

3 CLUB WILL DROP THIS AND THAT THE GREAT BRITAIN CLUB DETERMINED

4 THAT IT COULDN'T IMPOSE ON ITS AFFILIATES THE SAME

5 REQUIREMENTS. THEY HAVE DECIDED TO DROP IT ON THEIR OWN, BUT

6 THEY ARE ALSO REVISING THEIR AFFILIATION AGREEMENTS TO REQUIRE

7 THAT ANY CLUB, INCLUDING MY CLIENT THAT MAY SEEK TO CONTINUE

8 AND MAINTAIN AN AFFILIATION WITH THEM ACQUIESCE WITH ALL THEIR

9 RULES AND REGULATIONS. OF COURSE, THEIR RULES AN AND

10 REGULATIONS WILL BE IN MANY CASES CONTRARY TO THE RULES,

11 CURRENT RULES AND REGULATIONS OF MY CLUB, BECAUSE MY CLIENT'S

12 CLUB CONTINUES TO MAINTAIN THE CONFLICTING ORGANIZATION RULE,

13 SO THE PRACTICAL EFFECT OF THE SETTLEMENT IS THAT MY CLUB MAY

14 OR MAY NOT BE ABLE TO CONTINUE ITS AFFILIATION WITH THE GREAT

15 BRITAIN CLUB BECAUSE THE GREAT BRITAIN CLUB WILL REQUIRE THAT

16 ITS AFFILIATES NO LONGER ABIDE BY THE CONFLICTING ORGANIZATION

17 RULE.

18 THE COURT: WHAT'S THE CONSEQUENCE OF THAT?

19 MR. HAAS: THE CONSEQUENCE OF THAT MAY BE THAT MY

20 CLIENT WILL NOT CONTINUE ITS AFFILIATION.

21 THE COURT: SO WHAT?

22 MR. HAAS: WE'LL JUST GO OUR WAY.

23 THE COURT: YOU GET TO CHOOSE.

24 MR. HAAS: THE CONTINUATION OF THAT AFFILIATION IS NOT

25 CRITICAL TO THE WHEREWITHAL AND THE CONTINUING OPERATIONS OF MY

DYNELE SIMONOV, CSR NO. 11211
CERTIFIED PRO TEM REPORTER - U.S. DISTRICT COURT

1 CLIENT'S CLUB. IT IS A DECISION FOR THEM TO MAKE, AND THAT IS

2 SOMETHING THAT THEY WILL BE TAKING UP IN LIGHT OF THESE

3 DEVELOPMENTS. BUT TO SUGGEST THAT THERE IS NO IMPACT ON OUR

4 CLUB AS A RESULT OF THE SETTLEMENT ISN'T EXACTLY THE CASE.

5 NONE OF THAT GOES TO MY OPPOSITION OF THE SETTLEMENT ITSELF. I

6 THINK SETTLEMENTS ARE GOOD THINGS. IT IS NICE TO HAVE ISSUES

7 AND PARTIES REMOVED FROM LITIGATION, BUT I DON'T UNDERSTAND THE

8 BASIS THAT THE SETTLEMENT HAS TO BE CONVERTED AGAIN FROM A

9 PRIVATE AGREEMENT TO AN ORDER OF THIS COURT, AND I THINK I HAVE

10 CITED AUTHORITY IN MY OPPOSITION THAT WITH WOULD SUGGEST TO THE

11 COURT THAT THERE IS CERTAINLY NO MANDATORY REASON TO DO IT AND

12 IT COULD BECOME VERY PROBLEMATIC SHOULD THE COURT ISSUE THE

13 ORDER.

14 MS. BRIANT: COULD I ADDRESS SEVERAL OF THOSE POINTS,

15 PLEASE, YOUR HONOR. IT IS NEWS TO ME THAT THE GB IS DRAFTING

16 AN AFFILIATION AGREEMENT THAT WILL REQUIRE THE JRTCA TO DROP

17 THE CONFLICTING ORGANIZATION RULE. IF THAT IS THE CASE THE GB

18 HAS FOUND A NEW WHEEL THAT IT DIDN'T HAVE SIX MONTHS AGO OR

19 SEVEN MONTHS AGO. WHAT I HAVE SAID WAS IN THE COMPROMISE THAT

20 WE WORKED OUT, THE GB DROPPED THE RULE FROM ITS CONSTITUTION

21 BYLAWS AND AFFILIATES AGREEMENT AS OPPOSED TO HAVING A NEW RULE

22 THAT SAYS THAT AFFILIATE AGREEMENTS WILL NOT HAVE A CONFLICTING

23 ORGANIZATION RULE. IT IS ONE STEP SHORT OF THAT. SO WHEN

24 MR. HAAS SAYS THERE IS SOMETHING ABOUT THIS THAT WILL REQUIRE

25 DISAFFILIATION BY THE JRTCA, I AM NOT SURE THAT IS TRUE, BUT I

DYNELE SIMONOV, CSR NO. 11211
CERTIFIED PRO TEM REPORTER - U.S. DISTRICT COURT

1 KNOW THAT THERE IS NO EVIDENCE TO THAT EFFECT AND I HADN'T

2 HEARD THAT BEFORE.

3 MR. HAAS: IN FACT, WE HAVE BEEN PRESSURED SEVERAL

4 TIMES IN THE RECENT WEEKS BY A REPRESENTATIVE OF THE GREAT

5 BRITAIN CLUB TO SIGN AN AFFILIATION AGREEMENT. AN AFFILIATION

6 AGREEMENT HAS NEVER BEEN PROVIDED TO MY CLIENT BY THE GREAT

7 BRITAIN CLUB EVER. THEY HAVE HAD INFORMAL ARRANGEMENT FOR

8 YEARS.

9 THE COURT: ONE OF MY CONCERNS IS THAT I DON'T HAVE A

10 BASIS FOR USING SOME OF WHAT YOU ARE TELLING ME AS FACTUAL

11 MATERIAL NOW AND PERHAPS WHAT SHOULD HAPPEN IS, EVEN IF I DO

12 GIVE YOU THIS ORDER, IT IS WITHOUT PREJUDICE TO YOUR COMING IN

13 AND GIVING ME SOMETHING MORE OR SOMETHING. BUT THOSE EVENTS I

14 AM NOT SURE HOW THEY WILL AFFECT ME. I AM NERVOUS STAYING MY

15 HAND OR MAKING A RULING BASED UPON REPRESENTATIONS AS TO WHAT

16 THE GREAT BRITAIN ORGANIZATION IS OR IS NOT DOING WITHOUT

17 EVIDENTIARY BASIS.

18 MR. HAAS: I AGREE WITH THAT. THE COURT IS NOT

19 REQUIRED TO ACT RIGHT NOW OTHER THAN TO GRANT OR DENY THIS

20 MOTION. THERE IS NO IMPETUS TO GRANT THIS MOTION. THERE WAS

21 NOT A SINGLE CASE EXCITED IN SUPPORT OF THIS CONCEPT.

22 THE COURT: QUITE FRANKLY THE REASON I HAD YOU IN IS I

23 WAS HOPING TO USE THIS AS AN OPPORTUNITY TO SEE WHETHER OR NOT

24 THIS SETTLEMENT WITH THE GREAT BRITAIN ORGANIZATION HELPS YOU

25 TO RESOLVE YOUR OVERALL DISPUTE. IT SOUNDS LIKE IT DOESN'T.

DYNELE SIMONOV, CSR NO. 11211
CERTIFIED PRO TEM REPORTER - U.S. DISTRICT COURT

1 WHAT I AM HEARING IS THAT IT MIGHT REMOVE YET ONE OF THE

2 BARRIERS TO -- ONE OF THE REASONS FOR MAINTAINING THE

3 NONAFFILIATION CLAUSE, HOWEVER, YOU WANT TO CALL IT, BUT THAT

4 THE AMERICAN ORGANIZATION HAS INDEPENDENT OF GREAT BRITAIN A

5 CONCERN ABOUT REMOVING THAT CLAUSE FOR REASONS HAVING TO DO

6 WITH THE HEALTH OF THE BREED AND OTHER THINGS THAT YOU ARE

7 CONCERNED ABOUT. SO YOU ARE PREPARED TO LITIGATE THAT ISSUE

8 AND TO HAVE IT TESTED AGAINST THE FACTS AS TO WHAT WOULD OCCUR

9 IF THIS CLAUSE WERE REMOVED. IT SEEMS TO ME THAT THE PLAINTIFF

10 HERE IS SIMPLY WANTING TO HAVE THE SANCTIONS OF THE COURT AND A

11 SETTLEMENT WITH A DEFENDANT SAYING, OKAY, THAT CLAUSE IS NO

12 LONGER GOING TO BE BEFORE THE COURT AS SOMETHING IMPOSED BY A

13 HIGH ORGANIZATION. THAT REASON IS GOING TO DISAPPEAR FOR

14 PURPOSES OF THE TRIAL OF THE CASE WITHOUT PREJUDICE TO PAST

15 CONDUCT, BUT AT LEAST AT THE POINT WHERE WE ARE TRYING THE CASE

16 PERSPECTIVELY, IT WON'T BE THERE. IF THE GREAT BRITAIN

17 ORGANIZATION IS A PARTY TO THE CASE, I PRESUME THIS WOULD

18 OPERATE TO DISMISS THEM FROM THE CASE SINCE THEY WOULD HAVE NO

19 OTHER REASON TO BE INVOLVED IN THE LITIGATION, CORRECT?

20 MS. BRIANT: IT DISMISSES THEM AS A PARTY. THE

21 SETTLEMENT AGREEMENT REQUIRES THAT THEY COOPERATE INCLUDING

22 PROVIDING A WITNESS WHO WILL COME TO THE TRIAL IF THERE IS A

23 TRIAL AND WOULD EXPLAIN THE ORIGINS OF THE CONFLICTING

24 ORGANIZATION RULE AND WHY IT ISN'T NECESSARY.

25 ACTUALLY, YOUR HONOR, I DISAGREE WITH YOUR BASIC

DYNELE SIMONOV, CSR NO. 11211
CERTIFIED PRO TEM REPORTER - U.S. DISTRICT COURT

1 ASSUMPTION HERE THAT THIS SETTLEMENT ISN'T GOING TO PROMOTE

2 GLOBAL SETTLEMENT. I DON'T THINK MR. HAS CAN STAND HERE AND

3 TELL YOU THAT WE ARE ON THE VERGE OF A GLOBAL SETTLEMENT.

4 JUDGE INFANTE IS VERSUS GOOD AT SETTLEMENT, THE PROCESS AND WE

5 HAVE HOPES FOR THIS UPCOMING MEDIATION, BUT THE REASON THAT WE

6 THINK THIS IS A GREAT SETTLEMENT, I SAY THAT, BOTH THE LAWYERS

7 AND THE PLAINTIFFS THINK IT IS A GREAT SETTLEMENT IS BECAUSE

8 THE GB HAS TREMENDOUS MORALE VOICE IN THE TERRIER WORLD IN THE

9 U.S. MUCH MORE SO THAN THE JRTCA. SO WHEN THE JRTCA SAYS THE

10 MOTHER CLUB, THAT GOES A LONG WAY. WHAT THE GB HAS DONE IS

11 THEY HAVE SAID WE DON'T NEED THIS CONFLICTING ORGANIZATION

12 RULE. WE DON'T HAVE IT ANYMORE. SO WHEN THE JRTCA HAS TO COME

13 BACK AND SAY WE HAVE THIS RULE BECAUSE IT IS FOR THE GOOD

14 BEFORE THE DOG, WHAT THEY ARE REALLY TELLING THE COURT AND

15 ULTIMATELY THE JURY IS IT IS FOR THE GOOD OF THE DOG TO HAVE

16 TWO VERY SMALL GENETIC POPULATIONS BEING ISOLATED. THE JACK

17 RUSSELL TERRIERS REGISTERED WITH THE AMERICAN KENNEL CLUB AND

18 THE JACK RUSSELL TERRIERS REGISTERED WITH THE JRTCA. SO YOU

19 TAKE WHAT IS ALREADY A SMALL GENETIC POOL, IT HAS BLINDNESS,

20 DEAFNESS, IT HAS JOINT PROBLEMS AND YOU ISOLATE THEM, DON'T LET

21 THE GOOD DOGS FROM THIS POOL BREED WITH THE GOOD DOGS OF THAT

22 POOL, AND THAT IS A LOUSY DEFENSE. SO IT IS A MUCH BETTER

23 DEFENSE FOR THEM TO SAY, WELL, WE'LL BE DISAFFILIATED IF WE

24 BROKE RANKS. DISAFFILIATION IS A VERY BAD THING. THAT IS WHAT

25 HAPPENED TO OUR CLUB, AND WE HAVE BARELY SURVIVED IT. AND IT

DYNELE SIMONOV, CSR NO. 11211
CERTIFIED PRO TEM REPORTER - U.S. DISTRICT COURT

1 WOULD BE A VERY BAD THING FOR JRTCA. THEY HAVEN'T LAUGHED AT

2 IT OR SAID WE DON'T NEED THE JRT GB, WE CAN BE A STANDALONE

3 ORGANIZATION. THEY MAKE GREAT MILEAGE OUT OF BEING PART OF A

4 WORLDWIDE FEDERATION OF JACK RUSSELL TERRIER CLUBS. THEY HAVE

5 BOARD PEOPLE WHO SIT ON THE WORLDWIDE FEDERATION. THIS IS A

6 VERY GOOD THING. THAT'S WHY THEY DON'T WANT IT TO BE AN ORDER

7 OF THE COURT. THEY WANT TO BE ABLE TO SAY, OH, YOU KNOW, THIS

8 DOESN'T REALLY MATTER, THIS IS SOME PRIVATE AGREEMENT BECAUSE

9 THEY RAN OUT OF MONEY. THIS DOES MATTER. THIS IS VERY

10 IMPORTANT. IN MY EXPERIENCE IT HAS BEEN NORMAL TO MAKE

11 SETTLEMENT AGREEMENTS THAT BECOME AN ORDER OF THE COURT. WE

12 ARE DISMISSING THE COMPLAINT AGAINST THEM. WE ARE LETTING THEM

13 OUT. THEY WERE SOPHISTICATED ENOUGH TO HIRE A LAWYER IN

14 CHICAGO TO NEGOTIATE WITH US. WHEN MR. HAAS SAYS THESE ARE

15 REAL TERRIER MEN, THEY GO OUT IN THE FIELDS AND HUNT WITH THE

16 DOGS. WELL, SO ARE BOARD MEMBERS AND OFFICERS OF MY CLUB.

17 THEY ARE OUT HUNTING ALL THE TIME, NOT IN CALIFORNIA, BECAUSE

18 IT IS NOT DONE OUT HERE, BUT THEY FLY TO THE MIDWEST AND EAST

19 AND THEY DO IT. THEY ARE REAL TERRIER PEOPLE TOO. WHAT WE ASK

20 THE COURT TO DO HERE IS TO PROVE THIS AS THE PARTIES

21 CONTEMPLATE TO RETAIN THE JUDICIAL EFFICIENCY OF OUR BEING ABLE

22 TO COME BACK IN IF WE NEED TO.

23 MR. HAAS: OUR VIEW OF IT, YOUR HONOR -- FIRST OF,

24 BEFORE I FORGET THE POINT, I WILL STIPULATE TO THE DISMISSAL OF

25 THE GREAT BRITAIN CLUB FROM THIS LAWSUIT IF THE COURT IS

DYNELE SIMONOV, CSR NO. 11211
CERTIFIED PRO TEM REPORTER - U.S. DISTRICT COURT

1 CONCERNED ABOUT HAVING THIS PARTY CONTINUE TO PARTICIPATE IN

2 THIS AND WOULD LIKE TO AVOID THAT. THAT IS NOT THE ISSUE. MY

3 VIEW OF WHAT IS HAPPENING HERE IS THE PLAINTIFFS ARE DESPERATE

4 TO LOCK IN THE SETTLEMENT.

5 ANOTHER FACT THAT IS NOT RECORD AND NOT BEFORE THE

6 COURT IS THAT THE PRESIDENT OF THE GREAT BRITAIN CLUB HAS

7 RESIGNED SINCE THE COURT ISSUED ITS RULING ON THE ANTITRUST

8 ISSUE. SO AGAIN, SEQUENCE IS IMPORTANT HERE. SETTLEMENT IS IN

9 DECEMBER WITH NEGOTIATIONS REGARDING WHETHER OR NOT THE CONDUCT

10 OF THIS GREAT BRITAIN CLUB THAT WOULD HAVE TO COME TO THIS

11 COUNTRY TO DEFEND THIS ACTION WAS OR WAS NOT VIOLATING THE

12 ANTITRUST LAWS. THE COURT RULES IN APRIL THAT THERE ARE NO

13 VIOLATIONS OF THE ANTITRUST LAWS. IT DISMISSES THE ANTITRUST

14 CLAIMS WITH PREJUDICE.

15 NOW HERE WE ARE WITH THIS MOTION TO COMPEL -- OR

16 RATHER TO TURN THIS ORDER, THIS SETTLEMENT, SORRY, INTO AN

17 ORDER OF THE COURT. GRANTED THE GREAT BRITAIN CLUB IS

18 REPRESENTED, BUT -- AND I CAN'T SPEAK FOR THEM, BUT THEY ARE

19 NOT HERE. AND THIS LAWYER WHO IS APPARENTLY WILLING TO AGREE

20 TO PRESERVE THE ISSUE OF PERSONAL JURISDICTION WHEN YOUR HONOR

21 HAD THE EXACT SAME REACTION I HAVE TO IT AND THAT IS BY THE

22 ISSUANCE OF THIS COURT ORDER, IT WILL BE TO SAY IT MILDLY AN

23 UPHILL BATTLE TO REFRESH ANY KIND OF MOTION TO QUASH SERVICE

24 AND SUMMONS OF PROCESS FROM THIS COURT TO COMING TO TRYING TO

25 MAKE THAT ARGUMENT THEN. JUST SEEMS TO ME THAT, FRANKLY, THE

DYNELE SIMONOV, CSR NO. 11211
CERTIFIED PRO TEM REPORTER - U.S. DISTRICT COURT

1 GREAT BRITAIN CLUB HAS BEEN OUT-LAWYERED.

2 THE COURT: I WILL TAKE IT UNDER SUBMISSION. I WANT

3 TO GIVE AN ORDER THAT DOES NOT PREJUDICE THE POSITION OF THE

4 JRTCA WITH RESPECT TO ITS RELIANCE ON THE CLAUSE UP TO NOW, BUT

5 IT DOES SEEM TO ME THAT IF THE PLAINTIFF AND A DEFENSE PARTY

6 WISHES TO MAINTAIN -- TO ENTER INTO A SETTLEMENT WHERE THEY

7 AGREE TO TAKE OUT THE OFFENDING LANGUAGE. THERE IS AN UNFAIR

8 COMPETITION AND OTHER CLAIMS THAT ARE STILL PENDING AGAINST IT

9 AND THOSE CLAIMS ARE DISMISSED. THAT'S A SETTLEMENT THAT THE

10 COURT APPROVES AS LONG AS THERE IS NO PREJUDICE TO JRTCA AND I

11 WILL TRY AND GIVE YOU WORDING THAT WILL CERTAINLY PROVIDE THAT.

12 MS. BRIANT: THANK YOU, YOUR HONOR. I HAVE A PROPOSED

13 ORDER, WHICH I COULD GIVE MR. DAVIS THAT PERHAPS THAT LANGUAGE

14 COULD BE ADDED TO, AND WE WOULD JUST ADD IF THE LANGUAGE COULD

15 BE NEUTRAL WITH RESPECT TO THE EFFECT ON THE JRTCA SO THAT WE

16 ARE NOT DISADVANTAGED AS WE ALSO DID COMPROMISE AS PART OF THE

17 SETTLEMENT.

18 THE COURT: VERY WELL. NEUTRAL LANGUAGE. THE COURT

19 ALWAYS THINKS THAT ALL OUR LANGUAGE IS NEUTRAL, SOMETIMES IF WE

20 ARE SAYING YOU LOSE, WE ARE SAYING IT IS NEUTRAL. THANK YOU

21 BOTH.

22 (WHEREUPON, THE PROCEEDINGS WERE CONCLUDED.)

DYNELE SIMONOV, CSR NO. 11211
CERTIFIED PRO TEM REPORTER - U.S. DISTRICT COURT

1 CERTIFICATION

5 I, DYNELE SIMONOV, CERTIFIED PRO TEM COURT REPORTER FOR

6 THE UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF

7 CALIFORNIA, 280 SOUTH FIRST STREET, SAN JOSE, CALIFORNIA, DO

8 HEREBY CERTIFY THAT THE FOREGOING TRANSCRIPT, PAGES 1 TO 20,

9 CONSTITUTES A TRUE, FULL AND CORRECT TRANSCRIPT OF MY SHORTHAND

10 NOTES TAKEN AS SUCH PRO TEM COURT REPORTER OF THE PROCEEDINGS

11 HEREINBEFORE ENTITLED AND REDUCED TO TYPEWRITING TO THE BEST OF

12 MY ABILITY.

16 DYNELE SIMONOV, CSR NO. 11211
CERTIFIED PRO TEM REPORTER - USDC
17

DYNELE SIMONOV, CSR NO. 11211
CERTIFIED PRO TEM REPORTER - U.S. DISTRICT COURT

1 DYNELE SIMONOV, CSR NO. 11211
CERTIFIED PRO TEM REPORTER - USDC
2 6327 NARCISSUS AVENUE
NEWARK, CA 94560
3 510/797-7514

4 JULY 20, 2001

5 HORRIS AUSTIN
COUDERT BROTHERS
6

7 RE: JACK RUSSELL TERRIER NETWORK V. JRTNNC
C-98-20932 JW
8 5/21/01
THE HONORABLE JAMES WARE, PRESIDING
9

10 INVOICE: 02901

11 RALL ACCOUNTS CHARGEABLE TO ATTORNEYS. NO CREDIT IS GIVEN TO
CLIENTS. JUDICIAL CODE SEC. 753(F)
12 "THE REPORTER MAY REQUIRE ANY PARTY REQUESTING A TRANSCRIPT
TO PREPAY THE ESTIMATED FEE IN ADVANCE."
13

14 20 PAGES @ 4.90 PER PAGE: $98.00

15 TOTAL DUE: $98.00

16 I CERTIFY THAT THE FEE CHARGED AND THE PAGE
FORMAT USED CONFORM TO THE REGULATIONS OF THE
17 JUDICIAL CONFERENCE OF THE UNITED STATES

18 __________________________

19 DYNELE SIMONOV
CERTIFIED PRO TEM REPORTER - USDC
20

21 TAX I.D. NO. 095601685

DYNELE SIMONOV, CSR NO. 11211
CERTIFIED PRO TEM REPORTER - U.S. DISTRICT COURT

Problems? Questions? Contact the WEBMASTER

Jack Russell Terrier Network of Northern California