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Q&A With Arnall Golden Gregory's Allen Hirsch
Law360, New York (December 22, 2009) -- Allen Hirsch has been a partner in the
litigation practice group of Arnall Golden Gregory LLP since 1975 and has been a
member of the firm's executive committee since 1986. He was chair of the executive
committee from 1989-1995 and chair of the litigation practice group from 1982-1987. In
addition to his extensive trial experience before state and federal courts throughout the
country, he has successfully represented a client of the firm in a landmark antitrust case
before the U.S. Supreme Court. He is also a member of the employment law and
business litigation practice teams.
Q: What is the most challenging case you've worked on, and why?
A: Southern Motor Carriers Rate Conference Inc. et al. v. United States of America. This
antitrust price-fixing case brought by the Department of Justice in 1975, challenged the
intrastate rate-making services of my client, SMCRC. Based on an antitrust case,
Georgia v. Pennsylvania Railroad et al., argued on behalf of the state of Georgia, and
won, in the United States Supreme Court, by our founding partner, Ellis Arnall, in 1945,
while he was the sitting governor of Georgia, finding the interstate rate agreements of
the railroads to be price-fixing per se, the United States District Court for the Northern
District of Georgia granted summary judgment to the DOJ against my client. In the face
of Georgia v. Pennsylvania Railroad, I raised a defense under the doctrine of "state
action immunity" espoused in the 1945 Supreme Court decision in the case of Parker v.
Brown. The District Court rejected my argument.
On appeal to the Fifth Circuit, I lost in a 2-1 decision. The Court of Appeals granted my
request for a rehearing en banc. While the case was awaiting oral argument, the circuit
was split into the Fifth and Eleventh circuits. My case was transferred to the new
Eleventh Circuit. Again, based on Georgia v. Pennsylvania Railroad, I lost en banc, 8-4.
My state action argument again rejected.
A petition for certiorari was granted, and I argued the case in the U.S. Supreme Court in
November of 1984. On March 27, 1985, 40 years and one day after the decision
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granted my partner, Ellis Arnall, the Supreme Court reversed the lower courts in a 7-2
opinion, adopting my argument that the activity in question was immune from the
antitrust laws under the "state action" doctrine of Parker v. Brown. In the dissent of
Justice Stevens, in which Justice White joined, Stevens wrote:
"Immunity of this type was rejected by the court in the ... Pennsylvania Railroad case(s),
but today, under the shroud of the state-action doctrine, it is resurrected."
Given the gravity of the issue at hand, that my client's intrastate rate-making services in
the states of Georgia, Alabama, North Carolina, Tennessee and Mississippi would be
permanently enjoined, coupled with the fact that I was arguing in diametric opposition to
a landmark case argued by my mentor and partner 40 years earlier, and the fact that I
had lost in the district court, on appeal in the Fifth Circuit, and en banc in the Eleventh
Circuit, made this the most challenging case I have ever handled.
Q: What do you do to prepare for oral argument?
A: I empanel an appellate tribunal consisting of my litigation partners with appellate
experience and experience in the field of law at issue in the case, provide them with
briefs of the parties, and argue first in an untimed manner to allow all questions to be
posed and answered, and then in a timed manner, to hone my responses. I also invite
other partners and associates to observe the mock argument and have round-robin
discussions of the issues and presentation.
Q: What are some of the biggest problems with the U.S. appeals process?
A: While I feel that our appellate process is generally a very good process, I have the
following objections:
(a) There should be more flexibility in the length of time for oral argument. Many cases
cannot be addressed in 15 minutes.
(b) The practice of assigning senior district judges and judges from other tribunals such
as the International Board Trade, etc., lessens the effectiveness of the decision-making
process. Often the judges sitting by designation fail to participate in the questioning on
oral argument, raising speculation as to their contribution to the ultimate resolution of
the case.
(c) The lack of a time period within which the appellate court has to render its opinion
prolongs the process unnecessarily. I have waited as much as 18 months after oral
argument for a decision. This creates client distrust in the system and staleness in the
record if the case is remanded for trial or reconsideration.
Q: Aside from your own cases, which cases currently on appeal are you following
closely and why?
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A: I follow most antitrust cases and cases involving the arbitration process because
those are two of my major specialties. As for a specific case, I am following the case of
Feesers v. Michael Foods and Sodexo because the subject matter, the applicability of
the Robinson-Patman Act to pricing practices of food manufacturers in their dealings
with food management operators, group purchasing organizations (GPOs) and
institutional food distributors, impacts directly on some of my clients.
Q: Outside your firm, name one lawyer who's impressed you and why?
A: I have worked with and against many very talented lawyers, both at the trial level and
on appeal. Each has his or her exceptional attributes and particular weaknesses. To
select one who so out shines all her or his peers is impossible.
Q: What advice would you give a young lawyer interested in getting into your
practice area?
A: I highly recommend judicial clerkships, either at the trial or appellate level. I also
suggest working for a government agency, Department of Justice, or a prosecutorial or
public defense organization to obtain trial and appellate experience on a faster track.
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