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After a 10-year wait and one hung jury, 10,000 gas station owners from 36 states will get a second chance to argue that Exxon Mobil Corp. owes them $1 billion plus interest for failing to give them a promised discount on gas. Opening statements in the class action suit begin today in U.S. District Judge Alan Gold’s courtroom in Miami. The trial is expected to last four to six weeks. This is the second time a jury is hearing the case. The first trial ended with a deadlocked jury in September 1999. The case began in 1991, when 11 Florida station owners filed suit against Exxon for breach of contract, claiming that the company reneged on a promise to charge them less for gas if they participated in a customer “discount-for-cash” program launched in 1982. Exxon, which merged with Mobil last year, maintains it did deliver the discounts to the dealers. The program allowed customers paying cash to save a few pennies on each gallon of gas. It was intended to help Exxon compete more effectively against smaller rivals, who were able to charge less because they accepted cash only and didn’t incur credit card processing costs. Dealers were paying Exxon a 3 percent fee on all credit card sales. But if they agreed to participate in the cash-discount program, Exxon said it would reduce its wholesale price by 1.7 cent per gallon, theoretically enabling the stations to charge a lower pump price. But the dealers claim they never received the discount. Those lost pennies added up. At a 1999 hearing, the plaintiffs’ lead attorney Eugene Stearns, of Miami-based Stearns Weaver Miller Weissler Alhadeff & Sitterson, told Judge Gold that Exxon saved $130 million a year by not delivering the discount. He said Exxon owed the average dealer about $125,000. Because the stakes are so high, the opposing lawyers have buried Gold in motions. They’ve fought bitterly over everything from jury selection questions to whether the plaintiffs could replace their expert witness, and even how the plaintiffs have numbered their exhibits. Exxon Mobil charged that the plaintiffs changed their case in violation of a court order. Meanwhile, the plaintiffs accused the oil company of “grossly” overestimating the time required for the trial so as to skew the make-up of the jury pool — away from students and small business owners and toward retirees and corporate employees — to seat a more pro-business jury. They say the trial will take no more than four weeks, in contrast to the defendant’s estimate of six weeks. The lawyers are expected to dazzle the jurors with high-tech video presentations and a blizzard of charts. The plaintiffs will field a new, star expert witness: William Nordhaus, a Yale University economics professor and former member of President Carter’s Council of Economic Advisors. Both sides will have to confine their arguments to the courtroom. Gold issued a gag order several months ago, barring lawyers from making comments that could prejudice the jury. Besides Stearns, the plaintiffs’ legal team includes Sidney Pertnoy, of the Miami firm Pertnoy Solowsky & Allen, who filed the original suit in 1991, and McLean, Va., sole practitioner Gerald Bowen. Larry Stewart, of the Miami firm Stewart Tilghman Fox & Bianchi, is representing Exxon Mobil.

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