Ninth Circuit Orders Reinstatement of $44 Million Jury Verdict Against Maker of Swisher Sweets Cigars

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Gaw | Poe LLP obtains reversal of trial court order vacating $44 million antitrust jury verdict obtained on behalf of client Trendsettah Inc.

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“Our clients are grateful for the Ninth Circuit’s implicit recognition that antitrust disputes, like any others, are to be decided by juries of one’s peers." -- Mark Poe

The San Francisco law firm Gaw | Poe LLP today announced that the Ninth Circuit Court of Appeals has ordered reinstatement of a $44.4 million jury verdict that the firm had won against Swisher International, Inc., the world’s largest cigar manufacturer. Two months after the jury delivered its verdict in March 2016, however, the trial court vacated a large portion of the award, reducing it to slightly more than $9 million.

“We were delighted that the Ninth Circuit gave proper deference to what the jury saw through our trial presentation, which is that Swisher took deliberate steps to get our client under its thumb, and then squashed it,” said Randolph Gaw, a partner and co-founder of the firm. The firm’s client, Trendsettah Inc., is a start-up manufacturer of the small cigars known as cigarillos. When it initially launched its brand, Swisher International had offered to manufacture its cigarillos, with Trendsettah selling them under its own label and branding.

Trendsettah alleged in its court filings that as its “Splitarillos” brand cigarillos exploded in popularity, they started to eat into Swisher’s mammoth share of the market, prompting Swisher to sabotage the production of Splitarillos in a variety of anticompetitive ways. Following a two-week jury trial in Orange County, California, the jury agreed with Trendsettah, finding that Swisher had caused it to lose $14.8 million in profits. That amount is automatically trebled pursuant to the federal antitrust laws.

Mark Poe, the other named partner in Gaw | Poe, served as both lead trial and appellate counsel in the case on behalf of Trendsettah. “Our clients are grateful for the Ninth Circuit’s implicit recognition that antitrust disputes, like any others, are to be decided by juries of one’s peers,” Mr. Poe said. He added, “The federal antitrust laws were created by Congress for a reason, and the reason was to protect small businesses against the depredations of corporate giants.”

Swisher was represented on appeal by the renowned appellate attorney, Ted Boutrous, of Gibson Dunn & Crutcher. Serving as co-counsel for Trendsettah on its appeal was Eric Citron of the leading Supreme Court boutique law firm Goldstein & Russell. Additional trial counsel of record for Trendsettah were Gaw | Poe partners Victor Meng and Sam Song.

The case is Trendsettah USA, Inc., et al. v. Swisher International, Inc., No. 16-56823 and was heard before the United States Court of Appeals for the Ninth Circuit. This case is also the fourth, successive, unqualified appellate victory for Gaw | Poe in the last eight months, and the firm has never lost an appeal. Previously, Gaw | Poe succeeded in confirming an $11.3 million arbitration award before the Fourth Circuit Court of Appeals (Barranco v. 3D Systems Corp.), and in upholding a defense judgment following a bench trial over contractual option rights to real estate worth over $10 million (Tierney v. Javaid). Gaw | Poe had also succeeded before the Ninth Circuit Court of Appeals in upholding a jury verdict in favor of its real estate investor client on claims and counterclaims worth over $7 million (Okada v. Whitehead).

About Gaw | Poe LLP

Gaw | Poe LLP is a boutique law firm with offices in San Francisco and Orange County. Focusing on business and antitrust litigation, among the firm’s achievements is a $44.4 million jury verdict against a cigar manufacturer, which was the 37th largest verdict in the United States for 2016, and which was affirmed by the Ninth Circuit. Those interested in learning more about this action or Gaw | Poe LLP’s services may visit http://www.gawpoe.com.

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Randolph Gaw
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