LIBOR Over-the-Counter Plaintiffs Win Class Certification of Price-Fixing Claims Against Banks

By Barry Barnett on Posted in Antitrust, Class Actions

Today, United States District Judge Naomi Reice Buchwald in Manhattan issued LIBOR VII, in which the court granted class certification under Rule 23(b)(3) to a class of plaintiffs who bought over-the-counter instruments that paid interest in terms of the London Interbank Offered Rate (LIBOR) and who allege that LIBOR-setting banks conspired to suppress LIBOR during the 2007-09 financial crisis.

The court declined to certify the OTC plaintiffs’ state-law claims or any claims by two other plaintiff groups. See LIBOR VII.

Plaintiffs started filing actions alleging LIBOR suppression in 2011. The Judicial Panel on Multidistrict Litigation centralized the federal cases in the Southern District of New York before Judge Buchwald later that year.

The litigation has produced seven major rulings by the district court, two by the Second Circuit, and one by the Supreme Court. The later Second Circuit opinions came out last week. See Charles Schwab Corp. v. Bank of Am. Corp., No. 16-1189-cv (2d Cir. Feb. 23, 2018).

OTC plaintiffs have so far asked Judge Buchwald to approve class settlements totaling $490 million with Barclays, Citibank, and Deutsche Bank.

The court appointed Susman Godfrey LLP and Hausfeld LLP to serve as lead counsel for the class.

Preparing difficult witnesses for trial: Hardest questions, dry runs, keeping a safe distance, and conclusion

By Barry Barnett on Posted in Procedure

 

This coming Thursday, I’ll give a talk about Preparing Difficult Witnesses for Trial at the University of Texas law school Civil Litigation Conference in Austin. My series of posts on the subject ends with this one — and it’s the best one of them all, in my view. Continue Reading

Preparing difficult witnesses for trial: Story of me, full interview, and explaining what matters and why

By Barry Barnett on Posted in Uncategorized

In this penultimate installment of my series on preparing difficult witnesses (DWs) for trial, we get to some of the real nitty-gritty: Learning the story of me, doing a full interview, and then explaining what matters and why. As will become clear, the sequence matters — a lot. Continue Reading

Preparing Difficult Witnesses for Trial — Part 2

By Barry Barnett on Posted in Procedure

In Preparing Difficult Witnesses for Trial — Part 1, we looked at the four major types of trial witnesses. We also sketched “some of the more significant ethical considerations that govern your dealings with each category”. We then took “a short and non-exhaustive look at the two major privileges that trial lawyers deal with: the lawyer-client privilege and the lawyer work-product doctrine.”

In this post, we’ll cover the necessity for getting really ready and something you may find surprising — the importance of caring. Continue Reading

Preparing Difficult Witnesses for Trial — Part 1

By Barry Barnett on Posted in Procedure, Uncategorized

For your client to win at trial, the trial lawyer in you must tell a human story, one that moves jurors to decide in your client’s favor. Flesh-and-blood witnesses fill essential roles in the drama. So-so ones will turn the story to mush, and bad ones will allow your friend on the other side to beat you and your client about the head and neck with it. Difficult witnesses – DWs – therefore pose a risk you must use all your talents and powers to manage.

How can you prepare DWs for their potentially pivotal turn on the courtroom stage? In this series of posts, I offer thoughts from 33 years of trying cases. Continue Reading

Multiples for Pharma Buyers Pursuing Opt-Out Antitrust Claims

By Barry Barnett on Posted in Antitrust, Class Actions, Intellectual Property, Procedure

Existential threshold

The number of companies that can bring treble-damages claims against drug manufacturers for violating federal antitrust law has dwindled. The scarcity has grown so acute that last week it crossed an existential threshold. Continue Reading

Pharma Buyers Too Few for Class

By Barry Barnett on Posted in Antitrust, Class Actions

U.S. District Judge Mitchell S. Goldberg ruled on August 28, 2017 that a class of 24 to 25 direct purchasers did not satisfy the “numerosity” requirement of Rule 23(a)(1) for class certification. Florence Drug Co. of Florence, Inc. v. Cephalon, Inc., No. 06-c-1797, ECF 1072 (E.D. Pa. Aug. 28, 2017), on remand from In re Modafanil Antitrust Litig., 837 F.3d 238 (3d Cir. 2016).

As yours truly noted about the Third Circuit’s remand of the case in “No Class?“:

If the decision [on class certification] goes the defendants’ way, it will transform litigation of price-fixing claims against pharmaceutical makers. No longer will wholesalers have the ability to benefit from class settlements as passive class members. (AmerisourceBergen, for example, reported that it received more than $250 million from “antitrust settlements” since 2014.) The wholesalers must either forego recoupment of billions of dollars in overcharges or bring claims against their suppliers.

That stark choice now faces direct purchasers.

Big Pharma Faces More Pay-for-Delay Fallout

By Barry Barnett on Posted in Uncategorized

Pay-for-delay

Listen up, direct purchasers of pharmaceuticals.

Since 2013, pay-for-delay antitrust cases against Big Pharma could succeed if they alleged that a brand-name drug company had made “large and unjustified” payments for a competitor to postpone bringing a generic substitute to market. FTC v. Actavis, Inc., 133 S. Ct. 2223, 2237 (2013). But how “large” and how “unjustified” does Actavis require the payments to be?

A new decision by the Third Circuit provides a plaintiff-friendly answer, one that allows claimants in many cases to move beyond the pleading stage into discovery and potentially trial on the merits. Continue Reading

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