A recent Law 360 story by James Mills, “Tobacco Co. Gets $10.8M in Fees in Breach of Contract Win”, reports that a California federal court awarded a tobacco company almost $11 million in attorney fees and distributions in a long-running antitrust dispute against rival tobacco company Swisher.  California-based Trendsettah USA Inc., which makes thin, narrow cigars known as cigarillos, was awarded $10,237,493 in attorney fees and $613,181 in distributions in its decade-long antitrust and breach of contract suit against Florida-based cigar maker Swisher International Inc.

The battle has had a twisting route, including multiple verdicts, two trips to the Ninth Circuit and an indictment of Trendsettah's chief executive.  "By the time this court enters its forthcoming judgment in accordance with the Ninth Circuit's mandate, there will have been three judgments entered on Trendsettah's breach of contract claims: the original 2016 judgment, the reinstatement of the judgment following Swisher's appeal in 2019, and the upcoming reinstatement of the contract judgment.  Each of the three ascertain damages of the same amount—the second two consisting of reinstatements of the original judgment," U.S. District Judge James V. Selna wrote.

Thanks to an earlier agreement between the two parties, Judge Selna had to calculate attorney fees for the breach of contract claims that Trendsettah won but ignore the fees involved in the antitrust portion, which was ultimately dismissed.  Trendsettah sued Swisher in 2014, claiming the tobacco giant orchestrated a plot to knock out its supply of cigarillos.  Trendsettah say Swisher used market dominance to force it into a supply contract for the cigarillos, then later scrapped the deal.

Trendsettah won at trial in 2016, securing a $14.8 million jury award in the antitrust suit that was trebled to $44 million, plus $9.1 million on its breach of contract claim.  But Judge Selna later dismissed the antitrust portion of the verdict and ordered a new trial, saying the jury had been working off improper instructions on a key provision of antitrust law.  Rather than take a new trial, Swisher moved for summary judgment.  In December 2016, Judge Selna entered a judgment for Trendsettah on the breach of contract claims and one for Swisher on the antitrust and all other claims.

Three years later, the Ninth Circuit reversed the grant of summary judgment to Swisher and directed the court to reinstate the 2016 jury verdict in its entirety on remand.  Meanwhile, federal prosecutors indicted Trendsettah's founder and CEO, Akrum Alrahib, in April 2019, alleging the company lied about the price it paid for cigarillos imported from the Dominican Republic to avoid paying federal excise tax. In November 2021, Alrahib pled guilty to conspiracy.

However, in August 2019, Judge Selna said Alrahib had committed fraud against the district court and granted Swisher's motion for relief from the entire verdict and again ordered a new trial.  The Ninth Circuit got involved again in 2021, reversing the district court's dismissal of Trendsettah's breach of contract claims and remanding again with instructions to reinstate the jury's verdict on those claims, worth $9.1 million.  However, the appeals court upheld the district court's dismissal of the antitrust claims, which held the larger award and the trebled damages.

Trendsettah argued that its win on the breach of contract claims at the appellate level meant that it is the true prevailing party and that thus Swisher could not seek fees.  It also argued that the private agreement the parties signed explicitly said that the prevailing party is owed fees and costs from the loser.