T206, or not....let's have a continuing conversation....Ty Cobb Smoking Tobacco card

[nolemmings]

First and foremost, I would like to apologize to Patrick for coming across as dismissive. I like to think that I can disagree without being disagreeable, but I know I often fail at that. I am sorry.

The question posed is thus: Should the Ty Cobb King of the Smoking World card be considered excluded from T206 because it was produced by a company owned, but not wholly owned, by the American Tobacco Company? I say no–exclude it if you will (and I would), but such basis is artificial and contrived, in my opinion.

Bob, I believe I considered, at least momentarily, most of what you scribed– or what I could discern from a cursory review. With all due respect, I find it wholly unpersuasive.

For one thing, you assert that laws would have been in place protecting minority shareholders(in Penn) such that they had “some voice in say in how the company is being operated. And that would include making decisions such as including Ty Cobb w/Ty Cobb backed cards in the T206 set.” Please cite me to any such law, as I find that assertion unsupported. Do you really believe that the minority shareholders would have been able to prevent or even make any significant noise to stand in the way of that decision? That a corporation’s decisions in marketing its products is something beyond normal operations that would require a shareholder vote? What shareholder interests are implicated by such decision that would give the directors pause when exercising their business judgment? At most I could see that creating a new brand of tobacco might require some level of approval or at least canvassing, but decisions regarding the insertion of a baseball card to promote it? Seriously?

Next, your theorizing as to what the defendants and/or their attorneys in the antitrust litigation were thinking when contemplating the issuance of a single baseball card under a single brand is, well, out there. The ATC had its tentacles all over the place in the Tobacco manufacturing and distribution market, both horizontally and vertically. The scope of their endeavor was massive.

Still, you say: “So maybe as another added layer or trick in trying to show and convince a court and others, you do things like "not include a partially-owned company in the same T206 set you just launched for all your other wholly-owned companies and include them in your overall marketing campaign" to better assert and make it look like you, the ATC, actually did not have full control in decision making over such partially owned companies after all.”

Sure–yeah, no. The thought that litigation of that size, then two plus years old, would be impacted by such decision or that it would go into the calculus at all is frankly absurd. Dozens of companies and hundreds of transactions were under scrutiny to determine whether an illegal combination had been formed and whether there had been a restraint in trade. Any decision by ATC (cough, I mean Penn) to create a new brand and include a baseball card in 1909 or 1910 was immaterial to the matter. I can just see the lawyers asking the court to consider this “new evidence” to show one way or the other that the outcome would be impacted somehow by this Ty Cobb baseball card activity. Uh-huh.

I do not hold myself out as any sort of expert, but I have been practicing law for nearly 40 years in areas that require some understanding of commercial and business practices. Perhaps Mr. Spaeth would chime in on aspects of the anti-trust litigation, as that is his bailiwick. I can say confidently, however, that your analysis from a general legal standpoint is lacking.