CASE 0:10-cv-04945-PJS-TNL Document 136 Filed 03/30/11 Page 1 of 21

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA Case No. 0:10-cv-04945 PJS/FLN

_______________________ Steven E. Uhr, Plaintiff, v. Responsible Hospitality Institute, Inc., Jim Peters, Diageo North America, Inc., Gary Zizka, American Beverage Licensees, Inc., John D. Bodnivich, Distilled Spirits Council of the United States, Inc., Wine and Spirits Wholesalers of America, Inc., National Beer Wholesalers Association, International Downtown Association, Applebees International, Inc., Famous Daves of America, Inc., Brinker Restaurant Corporation, Lubys Fuddruckers Restaurant, LLC, Richard Lyshek, Rick Petri, Jay Wanserski, Prudential Financial, Inc., Citibank, N.A., Richard A. Yoast, James F. Mosher, and Robert H. Bruininks Defendants. ______________________ SECOND AMENDED COMPLAINT

PARTIES 1. 2. Plaintiff Steven E. Uhr resides in Edina, Minnesota. Defendant Responsible Hospitality Institute, Inc. (RHI) is a

private/public non-profit organization headquartered in Santa Cruz, California. 3. 4. Defendant Jim Peters is the president of RHI. Defendant Diageo North America, Inc. (Diageo) is a subsidiary of

Diageo plc, the worlds largest producer of beer, wine, and distilled spirits.

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Diageo plc is also a retailer of alcohol beverages. Diageo is headquartered in Norwalk, Connecticut and has an office in St. Paul, Minnesota. Diageo is on the board of RHI and is an underwriter of RHI activities. 5. Defendant Gary Zizka is Diageos Vice President of Public Policy.

He represents Diageo on RHIs board. 6. Defendant American Beverage Licensees, Inc. (ABL) is a national

trade association of off-premise and on-premise alcohol retailers, with over 20,000 members, including many in Minnesota. ABL is based in Bethesda, Maryland. ABL is on the board of RHI. 7. Defendant John D. Bodnivich is the executive director of ABL. He

represents ABL on the RHI board. 8. Defendant Distilled Spirits Council of the United States, Inc.

(DISCUS) is the national trade association representing Americas leading distillers. DISCUS is based in Washington. D.C. DISCUS is on the board of RHI and is an underwriter of RHI activities. Diageo is on the board of DISCUS. 9. Defendant Wine and Spirits Wholesalers of America, Inc.

(WSWA) is the national trade association representing the wholesale tier of the wine and spirits industry. WSWA is based in Washington, D.C. WSWA is on the board of RHI and is an underwriter of RHI activities. Its members include Minnesota wine and spirits distributors. 10. Defendant National Beer Wholesalers Association (NBWA) is the

national trade association representing the wholesale tier of the beer industry,
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including Minnesota wholesalers. NBWA is based in Alexandria, Virginia. NBWA is on the board of RHI and is an underwriter of RHI activities. 11. Defendant International Downtown Association (IDA) is an

association of over 600 community business trade associations worldwide, including some based in Minnesota. It is headquartered in Washington, D.C. IDA is on the board of RHI. 12. Defendant Applebees International, Inc. (Applebees) has its

principal place of business in Lenexa, Kansas. Applebees owns the Applebees brand and owns approximately twenty Applebees restaurants in the MinneapolisSt. Paul metropolitan statistical area (twin cities). 13. Defendant Famous Daves of America, Inc. (Famous Daves) is a

Minnesota corporation with its principal place of business in Minnetonka, Minnesota. Famous Daves owns the Famous Daves brand and owns approximately fifteen Famous Daves restaurants in the twin cities. 14. Defendant Brinker Restaurant Corporation (Brinker) is a Delaware

corporation and the owner of approximately ten Chilis restaurants in the twin cities. Brinker is based in Dallas, Texas. 15. Defendant Lubys Fuddruckers Restaurants, LLC (Fuddruckers) is

the owner of the Fuddruckers brand and owns the Fuddruckers located in the twin cities. Fuddruckers is based in Houston, Texas. 16. Defendant Richard Lyshek is an attorney in Madison, Wisconsin and

the former owner of Bull Feathers bar in Madison.

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17.

Defendant Rick Petri is an attorney in Madison, Wisconsin who

represents licensed establishments. Prior to that, Petri was an Assistant City Attorney in Madison. 18. Wisconsin. 19. Defendant Prudential Financial, Inc. (Prudential) is a financial Defendant Jay Wanserski is the owner of Wandos bar in Madison,

services institution based in Newark, New Jersey. Prudential has an office at 4538 Cass Street in San Diego (Prudential San Diego). Prudential has numerous offices in Minnesota. 20. Defendant Citibank, N.A., (Citibank) is a full-service bank based

in New York City. Citibank has an office at 1910 Garnet Avenue in San Diego (Citibank San Diego). Citibank does business at numerous locations in Minnesota. 21. Defendant Richard A. Yoast until recently was the head of alcohol

policy at the American Medical Association. 22. Defendant James F. Mosher is an attorney and the president of

Alcohol Policy Consultations. Mosher has worked with Yoast in developing alcohol policy at the American Medical Association. Mosher is based in Felton, California. 23. Defendant Robert H. Bruininks is the President of the University of

Minnesota. He is being sued in a representative capacity for injunctive relief only.

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FACTUAL ALLEGATIONS 24. In 1983 defendant RHI was formed. Defendant Peters has been the

president of RHI since then. RHI provides assistance and resources to organize and sustain price-fixing agreements on retail alcohol sales in communities throughout the United States and in Canada. This work is conducted under the label responsible beverage service and responsible hospitality. 25. RHI contracts with community business trade associations and

others to: (a) access the community with respect to alcohol issues, (b) facilitate an agreement among local hospitality businesses to limit drink discounts and promotions, and (c) assist in implementing a program to monitor, enforce, and sustain the agreement. 26. RHI has numerous seminars, conferences, summits, forums, and

webinars and other events throughout the year at which it provides community leaders and owners and managers of licensed establishments various tools and instruction on price-fixing methods and strategies. 27. RHIs slogan is innovative, collaborative and inclusive. Its home

page states that: The Responsible Hospitality Institute (RHI) assists businesses and communities create safe and vibrant places to socialize. RHI provides technical assistance that builds local capacity, incubates and shares cutting-edge information and proven strategies, and links a broad-based network of professionals who plan, manage and police dining and entertainment districts.

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28.

RHI publishes Planning, Managing, and Policing Hospitality

Zones: A Practical Guide. RHIs website describes the guide as follows: Designed for real-life application and practical use, RHI's premier publication is a compilation of tactics and promising practices that address a full range of nightlife district challenges. Planning, Managing and Policing Hospitality Zones: A Practical Guide showcases innovative approaches, strategies, model policies and case studies from cities throughout North America. This publication is a valuable resource for elected officials, downtown development organizations, law enforcement and regulatory agencies, colleges, dining and entertainment businesses, and neighborhood organizations seeking tools to enhance both safety and vibrancy in the nighttime economy. This publications is also designed and intended to facilitate the implementation of price-fixing agreements. 29. RHI also publishes a directory of organizations, associations and

educational institutions that focus on the multifaceted priorities of hospitality, safety, development, community and entertainment stakeholder. This publications is also designed and intended to facilitate the implementation of price-fixing agreements. 30. Defendant Diageo is the primary sponsor of RHIs sociable city

forums and other RHI events held throughout the United States designed and intended to further the charged conspiracy. Defendant Zizka is a regular participant at RHIs sociable city forums, at which he provides instruction on the operation and strategies of the conspiracy. Diageo shares in the proceeds of the charged conspiracy.

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31. as 2008. 32.

Defendant Mosher presented at RHI conferences at least as recently

In or around 1983-1984 Peters wrote a series of articles in trade

magazines urging licensed establishments to stop serving discounted drinks. 33. In or around 1989 a conspiracy training/recruitment video titled

Responsible Beverage Service was produced in California by Defendants Peters and Mosher among others. In the video Peters and Mosher discuss the steps that a community should take to implement and sustain a responsible beverage service program. 34. The RBS video was distributed to bar owners and managers

throughout the United States. 35. According to the video, RBS is built on the premise that

community interests must take the lead in setting standards for alcohol service, and then must work together with the hospitality industry to ensure that the standards are met. The referenced standards include price restrictions. 36. According to the video, the initial step in establishing an RBS

program is an assessment of the specific community with respect to alcoholrelated issues. Such an assessment includes a study of past incidents and controversies involving alcohol, identification of groups active or potentially active in the area, identification of the potential leadership within the community, and a study of the extent to which the hospitality industry is organized and hospitality businesses talk to one another. Such an assessment helps determine
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appropriate goals and the best strategy for introducing an RBS program in the particular community. 37. The video instructs that public awareness and concern be created by

publicizing a recent alcohol-related tragedy. The goal is to create an atmosphere in which the issue of alcohol service and use becomes a priority, thus establishing a favorable climate for change. 38. The video instructs that once an assessment has been made, the issue

of alcohol service has been established as an issue of public concern, and community members have reached agreement on community-wide standards, including price restrictions, then a training program for hospitality owners and managers should begin. 39. According to the video, the mere introduction of an RBS program in

a particular community does not ensure success. The goal is to make responsible beverage service a permanent part of community life. This requires a system to monitor the local hospitality industry to ensure that the established community standards are being met. 40. In 1994 RHI sponsored a Symposium on Responsible Hospitality

that resulted in a 54-page report discussing past and future strategies of the conspiracy. The symposium report is found at on RHIs website at http://www.rhiweb.org/resources/reports/1994-final-rev.pdf. 41. Among the invited attendees were representatives of RHI, Diageo,

DISCUS, WSWA, and the predecessor entities of ABL.

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42.

The preface to the report outlines the objective of the symposium:

Hospitality is a wheel that drives community life. The hospitality industry is one of many community institutions composing the spokes of the wheel. It is the merging of all interests that creates a hub and gives the community its strength. The Responsible Hospitality Institute is a public, private and nonprofit sector association dedicated to fostering responsible hospitality principles and practices, especially the responsible sales and service of beer, wine and distilled spirits. Evolving from the planning committee of the 1994 Symposium on Responsible Hospitality, RHis primary goal is to provide the opportunity for organizations and individuals from diverse perspectives to focus on areas of agreement and develop strategies to promote responsible hospitality. The solution seekers composing the RHI represent national, state and local trade and professional associations, government agencies, community organizations and related associations wanting to serve as a model of cooperation. The primary objective is to create a mechanism to facilitate ongoing communication and collaboration. Setting aside past differences, focusing on common problems and realizing that there will not always be consensus, the Partnership will dedicate its first year to building a North American communication network and developing resource materials for state and local groups. If you would like to learn more or contact a spokesperson in your area, please write [RHI]. 43. The symposium resulted in a list of significant statements, points of

disagreements, process challenges, and future strategies in seven areas: Knowing your ABCs, Hospitality and Community Policing, Finding the Right Balance, Responsible Beverage Service, When, Why, and How, Underage?, and The New Trade Association. 44. At a conference sponsored by RHI in Burlington, Vermont in

October 2005, RHI personnel told attendees that:

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Price competition in the hospitality industry has different consequences than the retail industry, which for the most part are not positive. Drink specials often indicate an establishment that is in trouble, and, have the adverse effect of over indulgence. Collaboration between owners will help to discourage this type of price war. Community covenants can be created to discourage this type of marketing practice. See Exhibit 1 at 4. This memo is available under the tools section of the RHI website. 45. In 2005 Defendant ABL sent a memo to its members in Minnesota

and elsewhere recommending its members agree to a set of integrated responsibility initiatives, which included the reduction of promotions and drink specials. 46. In December 2006, RHI held its 2020 Vision Leadership Summit

at the Palmer House Hilton in Chicago, designed and intended to advance the charged conspiracy. Attendees included teams from 12 U.S. and Canadian cities, representing hospitality, safety, development, and residential perspectives. According to Defendant Zizka, a speaker at the summit, the summit was designed to facilitate cooperation and consensus-building among key stakeholders to maximize economic, employment and social benefits. 47. RHI and others have worked to establish community-based

responsible hospitality councils as cover for price-fixing activity. Over twenty bars, including Defendant Applebees, are members of such a council in East Lansing Michigan, and they have reached agreements to limit the offering of drink discounts.
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48.

RHI has facilitated efforts to form and maintain price-fixing

agreements in dozens of communities in the United States and Canada. Among them are the twin cities, Madison, Wisconsin, San Diego, Hollywood, California, Breckenridge, Colorado and Milwaukee. Minneapolis/St. Paul. 49. The twin cities price-fixing was conducted in part through the

alcohol risk management (ARM) program. ARM is a manager/owner training program that advocates that licensed establishments agree to adopt certain written policies, including the elimination of drink discounts and promotions such as happy hours. 50. Attorneys, hospitality businesses, and insurance agents were

involved in the development of the ARM program. All ARM trainers had work experience in the hospitality industry. 51. The ARM program was administered through the Alcohol

Epidemiology Program (AEP) within the University of Minnesotas School of Public Health. The University posts ARM policies on its website. The University has obtained millions of dollars in retail alcohol sales during the course of the ARM Program. 52. The ARM program was funded in part by a grant from the Robert

Wood Johnson Foundation (RWJF), which is based in Princeton, New Jersey.

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53.

Approximately 230 licensed establishments in the twin cities agreed

to participate in ARM training. The University sent ARM recruiting packets to those establishments through the United States mail. 54. Defendants Mosher and Peters consulted on the development,

implementation, and evaluation of the ARM program. Both of them have traveled to the twin cities to consult on the ARM Program, and have also consulted on ARM through interstate phone and email communications. 55. A conspiracy training/recruitment video titled ARM Yourself with

Information was produced in Minneapolis in 1997. The video was shown to owners and managers of hospitality businesses. The video advocates that licensed establishments agree to restrictions on drink promotions such as happy hours, allyou-can-drink specials, 2-for-1s, pitchers, and promotions that target specific groups of individuals, such as ladies night. Attorneys and representatives of the insurance industry and the hospitality industry appear in the video advocating that licensed establishments adopt the written ARM policies. 56. Applebees, Chilis, Famous Daves, and Fuddruckers are identified

in ARM documents as participants in the ARM program. Applebees, Chilis, Famous Daves, and Fuddruckers agreed to and, upon information and belief, did eliminate or reduce the offering of drink discounts as a result of their involvement in ARM. The managers of Applebees, Chilis, Famous Daves, and the predecessor of Fuddruckers who participated in ARM knew and understood that ARM was cover for price-fixing activity.
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57.

ARM participants engaged in communications with one another to

discuss their price-fixing activity. 58. In 2008 the University of Minnesota published a research article

evaluating the ARM program. 59. Many licensed establishments in the twin cities still follow and abide

by the ARM pricing restrictions. Madison 60. In September 2002 approximately two dozen licensed establishments

near the University of Wisconsin campus issued a press release stating that we as a group, have agreed that we will voluntarily and immediately end all drink specials on Fridays and Saturday nights after 8 P.M. in our establishments. (Emphasis in original). A second press release, drafted by defendant Lyshek, states that we have our reservations about engaging in what could be considered illegal collusion in restraint of trade, but we feel this proactive position can cut through the fog and confusion surrounding the role of drink specials and disorderly conduct. The two press releases are attached as Exhibits 2-3. 61. Defendant Wanserskis establishment, Wandos Bar & Grill, and

defendant Lysheks former establishment, Bull Feathers, Inc., were fully confirmed participants in the above-referenced price-fixing agreement. 62. Defendant Petri was involved in organizing and implementing the

above-referenced agreement.

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63.

Prior, in and around March 2002, Petri facilitated a meeting among

licensed establishments near Camp Randall for the purpose of reaching an unlawful agreement to limit beer output at beer tents during University of Wisconsin home football games. See Exhibit 4. 64. During the relevant time period defendants Lyshek, Wanserski, and

Petri knew and understood that it was illegal for licensed establishments to agree with one another to eliminate or reduce the offering of drink promotions or to otherwise agree to reduce output on retail alcohol sales. All three pretended in public that such conduct was lawful. 65. The University of Wisconsin facilitated the formation of the above

agreement, and assisted in monitoring the agreement to discourage cheating. The University also agreed with the local tavern industry that it would not sell beer at the Memorial Union for less than prevailing market prices. 66. The Universitys efforts to facilitate collusion among licensed

establishments were funded by a grant from RWJF. The RWJF grant was part of the A Matter of Degree (AMOD) grant program, which began in 1996 and operated at ten universities. 67. The AMOD program was administered by defendant Richard Yoast

at the American Medical Association. Yoast directed the AMOD schools to facilitate cooperation and agreement among hospitality businesses to eliminate drink specials and promotions.

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68.

Yoast traveled to Madison in September 2002 shortly prior to the

announcement of the voluntary ban on drink specials and, upon information and belief, consulted with university personnel and bar owners about the agreement. 69. Defendant Petri was then and is today a member of a RWJF

subcommittee concerning alcohol policy. 70. In 2008, RHI entered into a contract with defendant Downtown

Madison, Inc. (DMI), a community business trade association and member of defendant IDA, to provide its services in Madison. Defendant Petri was then and is now a member of the board of DMI. 71. RHI conducted an assessment of the hospitality industry in

downtown Madison. One of its recommendations was that licensed establishments enter into marketing covenants to control drink specials. 72. Defendants Lyshek, Petri, and Wanserski participated in RHIs

roundtable meetings and other RHI organized meetings and events. All three knew and understood that RHI was working in Madison to facilitate price-fixing activity. 73. Defendant NBWA was involved in monitoring licensed

establishments in Madison to deter and prevent cheating from the conspiracy. Upon information and belief, WSWA has also been involved in monitoring licensed establishments in Madison and elsewhere to ensure compliance with the conspiracy.

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San Diego 74. In or around August 2006, approximately thirty licensed

establishments in the San Diego community of Pacific Beach agreed with one another to refrain from advertising two for one drink specials or prices below two dollars for any alcoholic beverage sold in our establishments. See Exhibit 5. 75. The agreement was announced at a press conference. The San

Diego Chief of Police and a city alderman attended the press conference. 76. The 2006 agreement replaced an earlier community covenant

among Pacific Beach licensed establishments entered into in or around 1996. That agreement provided that the participants would refrain from offering certain drink promotions. 77. The 2006 price-fixing agreement was organized and facilitated by

Discover Pacific Beach (DPB), a community business trade association. Defendants Mosher and RHI were also involved in facilitating the formation of the agreement and monitoring its operation. 78. RHI staff member Marion Novak said the following about the 2006

agreement: Businesses make more money because they are not selling alcohol at a loss. And if all the bars do it they remain competitive. Ms. Novak also worked as a consultant on the Robert Wood Johnson Foundations AMOD grant program. Ms. Novak also was an attendee at RHIs 1994 Responsible Hospitality Symposium.

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79.

Steve Zolezzi, the president and CEO of the San Diego Food and

Beverage Association, was involved in facilitating the formation and operation of the Pacific Beach price fixing agreement. Zolezzi is a former treasurer of RHI and is a regular speaker at RHI events around the country. 80. Jaime Pursley, a manager at Citibank San Diego, was on the board

of DPB at the time the 2006 price-fixing agreement was announced. He represented the interest of Citibank on the DPB board. He was aware of and supported the agreement. Citibank benefited financially from the charged conspiracy. 81. Mike McNeill, a manager at Prudential San Diego, was on the

Board of DPB at the time the 2006 price-fixing agreement was announced. He represented the interest of Prudential on the DPB board. He was aware of and supported the agreement. Prudential benefitted financially from the charged conspiracy. Milwaukee 82. Pursuant to the charged conspiracy, in or around 1995 eighteen

grocers and convenience stores on Milwaukees near west side agreed to fix minimum prices on 40, 32, and 20 ounce beer bottles. Two business associations and the Milwaukee police departments weed and seed initiative also participated in the agreement. See Exhibit 6.

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83.

In 2009, RHI was hired by the Milwaukee Downtown Business

Improvement District to facilitate collusion among licensed establishments in downtown Milwaukee. Breckenridge, Colorado 84. Pursuant to the charged conspiracy, in March 2008, sixteen licensed

establishments agreed with one another to stop offering drink specials after 12:00 PM and shot specials for under $3.00. See Exhibits 7-8. Upon information and belief, RHI helped to facilitate the formation of the agreement. 85. In June 2010, RHI held in Denver the Colorado Sociable City

Forum: Investing in a Safe and Viibrant Nighttime Economy. The Breckenridge Chief of Police was a speaker at the forum. Hollywood, California 86. Pursuant to the charged conspiracy, in or around 2005 a group of

licensed establishments in Hollywood agreed with one another to not offer any reduced price alcoholic beverage promotion. See Exhibit 9. The agreement was facilitated by RHI, and can be found as a resource tool on RHIs website. 87. The agreement was spearheaded by Elizabeth Peterson, a

hospitality consultant, the owner of several night clubs, and the former vice president of the Hollywood Chamber of Commerce. Ms. Peterson is a regular speaker at RHI events around the country. 88. Plaintiff has purchased alcoholic drinks from Applebees Chilis,

Fuddruckers, and Famous Daves in the twin cities during the course of the
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charged conspiracy. Upon information and belief, Plaintiff has purchased alcohol from other establishments that are participants in the charged conspiracy. COUNT 1 PRICE FIXING (all defendants) 89. 90. Plaintiff repeats and realleges allegations 1 through 88 above. As discussed herein, the charged defendants participated in a

contract, combination, and conspiracy to eliminate or reduce drink promotions at licensed establishments in the twin cities and elsewhere. 91. The conduct alleged above was part of a single conspiracy operating

in the twin cities and other communities in the United States and elsewhere. 92. 93. The charged conspiracy is ongoing. The charged conspiracy is conducted within and has a substantial

impact on interstate commerce. 94. The charged conspiracy constitutes a per se violation of the Sherman

Act, 15 U.S.C. Section 1. 95. The named defendants who are not retailers of alcoholic drinks aided

and abetted the conspiracy through their actions discussed herein, and benefitted financially from the conspiracy 96. Plaintiff is a victim of the charged conspiracy in that he overpaid for

drinks purchased from firms engaged in the charged conspiracy.

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97.

Pursuant to the Clayton Act, 15 U.S.C. Section 15(a), Plaintiff seeks

to recover three times his overcharge damages, plus costs, disbursements, and reasonable attorney fees to the extent allowed by law. COUNT 2 RACKETEERING (all defendants except Robert H. Bruininks) 98. 99. Plaintiff repeats and realleges allegations 1 88 above. Defendants and others have voluntarily and intentionally devised

and engaged in a scheme to defraud another of money and have engaged in specific fraudulent acts pursuant to that scheme with the intent to defraud. 100. Defendants and others have on numerous occasions used the United

States mail for the purpose of executing and furthering the scheme, in violation of 18 U.S.C. Section 1341. The defendants and others have on numerous occasions used interstate wire communications for the purpose of executing and furthering the scheme, in violation of 18 U.S.C. Section 1343. 101. The charged conspiracy constitutes an enterprise within the meaning

of the RICO statute, 18 U.S.C. Section 1962(c). Defendants and other persons engaged in the charged conspiracy through a continuous and related pattern of racketeering activity, including multiple violations of the federal mail fraud and wire fraud statutes. 102. Among the legitimate organizations infiltrated by the conspiracy

were the Robert Wood Johnson Foundation, the American Medical Association, Harvard University, the University of Minnesota, and the University of Wisconsin.

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103.

Plaintiff was injured in his property by reason of defendants

racketeering activities. He seeks a recovery for his injuries pursuant to 18 U.S.C. Section 1964(c). JURISDICTION 104. Section 1331. PRAYER FOR RELIEF WHEREFORE, Plaintiff requests that this Court: 1. U.S.C. 1. 2. Find that defendants engaged in racketeering activity in violation of Find that defendants engaged in price fixing in violation of 15 The Court has jurisdiction over this case pursuant to 28 U.S.C.

18 U.S.C. 1343. 3. conspiracy. 4. Award plaintiff treble his actual damages, costs and disbursements, Order defendants to cease their involvement in the charged

and attorney fees as permitted by law. 5. Award any other relief that the Court deems just and proper.

Dated March 30, 2011

s/Steven E. Uhr Steven E. Uhr, pro se MN. I.D. No.: 0284038 4524 Balfanz Rd. Edina, MN 55435 (952) 239-0346
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