Joseph J. Tabacco, Jr.

Tabacco, the founder of 38-member Berman Tabacco, said he's uncertain about the future of his offices in San Francisco's Financial District.

"It's strangely quiet down there," he noted in early June as business closures due to the coronavirus pandemic have cleared the streets, left buildings darkened and prompted reopening plans that will limit high-rise elevators to four passengers at a time. "We're giving some serious consideration to our workspace. Our lease is up in a couple of years. Do we really need all this space?"

Working remotely hasn't slowed Tabacco's pace as an antitrust litigator. In May, he filed a new antitrust class action targeting gasoline trading companies that allegedly schemed to manipulate the spot market for gasoline, causing retail prices paid by California consumers to be higher than warranted. His lead plaintiff is a large construction company that believes it was overcharged in a 2016 spike in gas prices.

"It turns out that traders in Houston and Korea were manipulating the market," he said.

"All told, California consumers have paid billions of dollars more at the pump than they would have absent the Defendants' unlawful conduct," Tabacco wrote in his complaint, citing the Cartwright Act, the state's antitrust law. Bogard Construction Inc. v. Vitol Inc. et al, 3:20-cv-03267 (N.D. Cal., filed May 13, 2020.)

California officials investigated the matter and filed a parallel suit in San Francisco Superior Court, Tabacco pointed out. In his complaint, Attorney General Xavier Becerra traced the hike in gas prices to a February 2015 explosion at a Torrance refinery that cut production and presented gas traders with a chance to manipulate the market and reap windfall profits.

"In a way, these gasoline cases are the flip side of my auto cases, because cars need gas," Tabacco said, referring to long-running antitrust claims proceeding in state and federal court asserting that major auto manufacturers conspired to stop the export of cheaper new Canadian vehicles in the U.S. for use or resale. The action has partially settled with Toyota Motor Sales U.S.A. for $35 million and with General Motors of Canada for $20.15 million.

The litigation is back in state court after to trips to state appellate court. Most recently a panel reversed a trial judge's grant of summary judgment in favor of Ford Canada. Automobile Antitrust Cases I and II, JCCP 4298 and 4303 (S.F. Super. Ct., consolidated July 1, 2003). Trial could take place in late 2020; Tabacco said damages, with trebling, could exceed $1 billion.

"These cases are so old we call them the antique auto cases," he said.

-- John Roemer