O’Connor Tells Van de Kamp to Post Bond
The drama surrounding American Stores’ effort to merge its Lucky and Alpha Beta supermarket chains heightened late Tuesday when U.S. Supreme Court Justice Sandra Day O’Connor apparently dealt a setback to California’s attorney general.
In a clarification of a Monday order, O’Connor said her prohibition against the merger is conditioned on the posting of a “good and sufficient bond” by California Atty. Gen. John K. Van de Kamp with the U.S. District Court in Los Angeles. She added that “the adequacy of such bond (is) to be determined by that court.”
Van de Kamp’s office had earlier vowed not to pursue the antitrust case if a bond were imposed.
Last month, U.S. District Judge David Kenyon ruled that Van de Kamp’s office should post a $16.3-million bond if it intended to appeal the case to the Supreme Court. The bond, he said, was to cover any potential losses that American Stores might suffer during the appeal process.
Van de Kamp challenged that order, noting that he was pursuing the case on behalf of California citizens.
Although O’Connor’s clarification Tuesday did not specify an amount, one attorney for American Stores interpreted the development favorably for American Stores.
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“The Supreme Court seldom itself fixes the amount of the bond because those are fact-bound issues that are better left to the discretion of the trial judge,” said the attorney, Rex E. Lee, with the law firm of Sidley & Austin.
On Monday, Andrea Sheridan Ordin, chief assistant attorney general, had said it was her understanding that the order was “a stay without bond.” Neither she nor other representatives of the attorney general’s office could be reached late Tuesday.
O’Connor also issued a seven-page written opinion explaining her reasons for granting the last-minute stay, according to Kathy Arberg, a Supreme Court spokeswoman.
In attorney Lee, Salt Lake City-based American Stores has rolled out a big gun for its legal battle. Lee, 54, served as U.S. solicitor general during President Ronald Reagan’s first term. A former teacher at Brigham Young, Lee assumed the presidency of the Mormon-controlled college last month.
In a telephone interview from his university office in Provo, Utah, before the clarification was issued, Lee said he took the case in his capacity as a “Supreme Court specialist” with Sidley & Austin, which has headquarters in Chicago.
He is also a friend of top American Stores executives, including Jonathan L. Scott, vice chairman and chief executive, and Michael T. Miller, a senior vice president.
“I’m very good friends with American Stores,” Lee said. “I don’t do this for everyone.”
Lee, who joined the Washington office of Sidley & Austin in 1985 after resigning the government post, said most of his cases since then have been in the High Court.
