Standard Oil Octopus: Past as Prologue

Stephen D. Susman, the founder of my firm and a titan in the antitrust bar, pioneered representing private antitrust plaintiffs on a contingent-fee basis.

Nobody knew better than Steve how to manage risk in antitrust cases — how to choose them, staff them, litigate them, win them. And no one knew better than Steve how to maximize his clients’ recoveries — and his law firm’s profits — from the many private antitrust cases the firm took on a contingent-fee basis.

I have thought a lot about whether the approaches Steve developed would help government lawyers at the Federal Trade Commission and the Antitrust Division of the Department of Justice make the most of the limited resources available to them for enforcement of antitrust laws. Over the last decade, the urgency of optimizing use of scarce resources has grown along with greater interest in blocking anticompetitive mergers, bringing more and bigger cases to remedy and deter antitrust violations, and improving antitrust doctrines in the courts[1] even as the agencies’ funding remains well below the levels in the 1970s.[2]

Below, I will discuss how the plaintiffs-lawyer experience might translate for these government lawyers.

Thinking Like a Plaintiffs’ Lawyer?

Lawyers who represent plaintiffs in private antitrust cases typically work on a contingent-fee basis — meaning they share the risk that the lawsuits they bring for their clients to recover damages may fail, either at trial or before.[3] Often they also advance the considerable out-of-pocket costs for litigation expenses like expert fees, outlays for travel, and payments to court reporters and jury consultants.

The contingency lawyers’ exposure to potential loss has a disciplining influence. Over years of practice, it instills habits of mind. Because the outcomes of cases determine whether they get paid or not, they learn to evaluate the odds of success, to do only those things that matter to the outcome, and to focus on finding the best way to persuade the judge or jury to change the status quo in their clients’ favor.

A profit-maximizing law firm working on a contingent-fee basis cares a lot about the cost of achieving favorable results. Cost, in this context, means the expense of lawyer time plus payments to experts and other outside vendors. Speed and efficiency in pushing cases to favorable resolutions tend to lower the firm’s cost and enhance returns on the firm’s investment.

Contingent-Fee Lawyers’ Approaches

Now we come to approaches Steve developed over the years for embracing risk while achieving optimal results.

Choose Carefully

Good plaintiffs lawyers know that the most valuable investment they make is the time and money they spend evaluating potential engagements they reject. Government lawyers who do not already have this mindset may find it useful in resisting the good-money-after-bad effects of what our economist friends call sunk costs.[4] Nothing hurts a plaintiff-side practice more than accepting loser cases — especially ones that have a voracious appetite for resources, as almost all antitrust lawsuits do. You will need to say no to many more cases than you accept.

Involve Everyone

Evaluating cases week in and week out makes a lawyer much better at coming to the right decisions about them. Reading case evaluations, hearing senior lawyers discuss strengths and weaknesses of potential cases, asking questions, and then voting attune you to the things that matter, lower the risk of error, and give everyone at least a cheering interest in the outcome of every case.

Require Rigorous Proposals

The lawyers who sponsor a case must explain why the firm should invest in it, first in writing and again orally at a weekly firm meeting. They must provide a road map that starts with the players and ends with victory at trial. Their analysis recites the facts, analyzes the facts under the relevant law, estimates costs, quantifies damages, describes staffing, identifies the tribunal, and projects the premium the firm will receive if the case prevails at trial.

The premium often should equal at least three times the likely investment and, in any case, must compensate for the risk of an unsuccessful outcome. A similar case-sponsoring and vetting process might be useful to government lawyers in making their go or no-go decisions on bringing antitrust cases.

Define Victory

Plaintiffs lawyers must quantify what they and their clients will receive should they win. That allows them to define what victory will look like. It also permits them to assess the resources (mainly lawyer time and expense money) that they should plan to invest in striving to achieve a successful outcome.

Spending $2 million to win a $1 million award makes no sense, but risking $2 million on a claim for $10 million might.

An economist presumably could make an analogous forecast of benefits from a potential enforcement action’s happy outcome — the granting of an injunction blocking an anti-competitive merger, say — to provide a data point in choosing among possible enforcement actions to bring.

Focus on Trial From the Start 

Plaintiffs lawyers who work on a contingent-fee basis must determine that the claims have enough legal and factual support to get to trial and that at trial their clients will likely prevail. Plaintiffs lawyers must in addition conclude that the potential upside of a case justifies what they would have to spend to handle the case through final judgment. The case otherwise may be a long expensive slog to defeat. Successful plaintiffs lawyers do not take cases in the hope they will settle quickly, even when that appears likely. They focus on trial.

A similar trial-centric approach may also benefit enforcement actions.

Do What Matters

Spending time on unproductive work at best reduces the profits of plaintiffs lawyers and may mire them in more distractions. That some expense might help to win a case provides insufficient justification for incurring it. Every investment, whether of time or money, should advance the case towards a successful outcome at trial.

Don’t Think Like a Defense Lawyer

Defense lawyers’ clients win by avoiding changes to the status quo. If nothing happens, they declare victory. Preventing a loss, moreover, carries twice as much psychological charge as achieving an equivalent gain does.[5] Nor do defense lawyers have an incentive to limit investment in their clients’ cases. Although losing a case may affect a defense lawyer’s reputation, it will not forfeit their compensation. Thinking like a defense lawyer thus tends towards over-investment and less early and ongoing attention to case-dispositive merits issues.

Tell the Human Story

Plaintiffs lawyers must motivate decision makers to make defendants pay money. Judges and juries seldom disturb the status quo unless they feel it is necessary to correct real injustices to actual people. The same is true in enforcement actions.

A story about a young woman who lost her American dream of owning a small business because a big company favored its own products will beat a claim that accuses an online digital platform of self-preferencing its algorithm.

Right-Size Trial Teams

The default staffing on each case’s trial team should start small — typically one senior lawyer, one junior lawyer, and a paralegal. The actual size should depend on the minimum number necessary to do the work. A docket coordinator who monitors each lawyer’s workload should have discretion to detach members from trial teams that have excess capacity and reallocate them to others in order to make best use of human resources.

Track Investments

Senior lawyers should receive a monthly tally and cumulative total of the value of time and expenses their teams have invested in each matter. The report may classify each case as a probable win, possible win or likely loss depending on a rough sense of the likelihood of achieving the case’s relevant objectives. This sort of tracking will allow team and firm leaders to identify problems and make adjustments to address them.

Conduct Case Reviews

Subject all active cases twice yearly to review by senior lawyers and other members of multiple case review teams. Reviews will identify potential issues and, if appropriate, result in corrective measures. They will also educate younger lawyers about a variety of cases and how to deal with common problems. Each team generates a list of things to do and reports the results of the review to leadership.

Require Accountability

The leader of each trial team assigns tasks to individuals–not to groups of individuals–and sets explicit deadlines for completion of the tasks. One person thus is accountable for timely performance of each task, whether they do the work themselves or rely on others to assist.

Develop a Deep Bench

Train every junior lawyer to become a first-chair trial lawyer. Give them important speaking roles in trials. Nothing motivates up-and-coming lawyers so well or strengthens the capabilities of the lawyers so much.


Reinvigorating antitrust enforcement requires tolerance for litigation risk and skill in managing it. The practices, orientation, and instincts of contingent-fee lawyers offer approaches the FTC and Antitrust Division might profitably consider.

Would some or all of the approaches really help? Let me know what you think by email (  I’ll especially appreciate input from individuals who’ve worked at the FTC or Antitrust Division. If I get a critical mass of commentary, I’ll include it–without attribution to individuals who provided comments–in a follow-up post.


[1] The Spring 2022 issue of Antitrust highlights the push for more assertive enforcement across multiple domains. Articles include “What Next for the Horizontal Merger Guidelines?” by Nancy L. Rose and Carl Shapiro and “Antitrust Reform: A Litigation Perspective” by Jonathan Sallet.

[2] From 1978 through 2021, gross domestic product rose 977.95 percent (or 9.7795 times). Multiplying the appropriations for the FTC and Antitrust Division in 1979 and 1978, respectively, by 9.7795 yields almost $1 billion—$635,667,500 to the FTC and $316,572,194 to the Antitrust Division. That represents a 42 percent increase over the stretch appropriation levels in the pending America COMPETES Act of 2022 and a 31 percent jump from the $490,000,000 and $272,524,000 the Biden administration has proposed for the FTC and Antitrust Division, respectively, in fiscal year 2023.

[3] For discussion of contingent-fee arrangements generally, including “negative” or “reverse” ones for reducing or defeating adverse claims, see Barry Barnett, Fee Arrangements, Ch. 77 in Business and Commercial Litigation in Federal Courts (5th 2022).

[4] See Wikipedia, “Sunk cost” (available at

[5] As the Nobel prize-winning behavioral economist Daniel Kahneman noted in Thinking, Fast and Slow (2011), “people are loss averse” and on average would reject a gamble in which they stood to gain $150 or lose $100. Experiments estimating the “loss aversion ratio” put it usually “in the range of 1.5 to 2.5.”

We round up the most significant appellate decisions relevant to commercial litigation each week.

To celebrate the arrival of summer, I am trying an experiment.

In this post–which covers almost all of June–I’ve sorted commercial rulings by the U.S. Supreme Court, the U.S. Courts of Appeals, and a selection from the highest state courts according to subject matter.

The resulting headings group decisions by broadly descriptive categories (e.g., Antitrust and Intellectual Property) for quicker reference. As usual, you may access the decisions by clicking on the case summary itself.

Please let me know you find these signposts worthwhile. Continue Reading Commercial Appeals Roundup

We round up the most significant appellate decisions relevant to commercial litigation each week.

Happy Memorial Day! Last week we had a big Delaware ruling on its welter of forum non conveniens doctrines, Texas decisions regarding lawyer liability, three opinions addressing arbitration questions, and a pair of IP pronouncements. Continue Reading Commercial Appeals Roundup

We round up the most significant appellate decisions relevant to commercial litigation each week.

Note for readers

Because my practice focuses on complex commercial disputes–especially ones involving antitrust, energy, or intellectual property–I keep daily track of important decisions by the U.S. Supreme Court, the 13 U.S. Courts of Appeals, and the highest appeals courts in Delaware, New York, and Texas.

You can follow along during the week on Twitter (@contingencyblog) or here at The Contingency each Monday with this Commercial Appeals Roundup.
Continue Reading Commercial Appeals Roundup

We round up the most significant appellate decisions relevant to commercial litigation each week.

The output of U.S. Courts of Appeals slowed over the summer; the highest courts in Delaware, New York, and Texas went on partial hiatuses; and having finished its 2019-20 Term in June, the U.S. Supreme Court won’t restart its assembly line until October 5. Yet we have a backlog of rulings to report. The 25 blurbs-plus-links below the jump will catch you up on the decisions most likely to affect your commercial litigation practice. Have a great week. Continue Reading Commercial Appeals Roundup

We round up the most significant appellate decisions relevant to commercial litigation each week.

The summer doldrums have slowed but not halted the flow of rulings by the U.S. Courts of Appeals, but you can’t say the same about the highest courts in Delaware, New York, and Texas.

Despite the more languid pace of federal-court opinions, we have a cornucopia of them–28 in all. I’m happy to say the backlog is a result of having quite a lot to do in my day job at Susman Godfrey.

The state-court pipelines have paused their deliveries since July 31 (in Delaware), July 17 (Texas), and June 29 (New York)–yielding just one opinion (on a rare instance of declining to order a shareholder meeting to elect directors).

Below the jump you’ll find the latest roundup of blurbs-with-links.
Continue Reading Commercial Appeals Roundup

We round up the most significant appellate decisions relevant to commercial litigation each week.

Judgment in German action didn’t bar claim that defendant could (but didn’t have to) bring as counterclaim.

Loan contract that limited arbitration to claims under tribal law violated public policy.

Amount in controversy for purposes of removal under CAFA includes “reasonably possible” punitive damages.

Network monitor patent did more than embody abstract idea under Alice.

Researchers qualified as inventors of patents on cancer-targeting antibodies.

Claim that offshore drilling contract resulted from bribery didn’t defeat $622 million arbitration award for its breach.

Fair value of firm could equal value of its stock.

FAA exempts contracts with international transport workers who don’t cross any state line.

ERISA doesn’t preempt contract claims for insurer’s breach of promise to pay out of network charges.

Making twin of U.S. pizza joint in Scotland didn’t violate U.S. copyright or trademark law.

Note for readers

Because my practice focuses on complex commercial disputes–especially antitrust, energy, and intellectual property–I keep daily track of important decisions by the U.S. Supreme Court, the 13 U.S. Courts of Appeals, and the highest appeals courts in Delaware, New York, and Texas.

You can follow along during the week on Twitter (@contingencyblog) or here at The Contingency each Monday with this Commercial Appeals Roundup.

Check out my profile on the Susman Godfrey website.

Steve Susman–my friend and mentor and my firm’s founding partner–died yesterday. A great many people who knew or knew of Steve have sent condolences, which I appreciate very much. I am very sad but also very grateful.

For those of you who hadn’t heard or want to know more, below is a statement that the partners issued this morning.

Be well.

Steve Susman, 1941-2020

With extraordinary sadness, the partners of Susman Godfrey LLP announce the death of our beloved founder, colleague and friend Stephen D. Susman.  Steve died in Houston on July 14 from complications of a bicycle accident in April.

Steve was our leader.   The firm was always his vision.  He loved the law firm, and loved us, and it was mutual.  Steve was passionate about the law and justice.  He spent his entire life thinking and talking about, and working for, ways to improve the system of civil justice in America.

Steve changed the nature of law practice forever.  Long before the profession gave serious thought to basing a complex commercial litigation practice on contingent fees and other arrangements that rewarded success rather than the number of hours billed, Steve championed this and built a firm around his idea.  Hundreds of other firms have followed that model, but Steve pioneered it and proved, spectacularly, that it could work.

Steve also changed the way cases get litigated.  He urged lawyers to avoid excessive discovery and pretrial disputes, and instead focus on trial.  He taught Susman Godfrey lawyers and many other lawyers around the country that being fierce advocates does not preclude treating one’s adversaries with honesty, professionalism, and respect.

To decades of lawyers at Susman Godfrey, Steve was not just our founder and leader, but our mentor and friend.  He was as eager to work on cases with and spend leisure time with the firm’s newest associates as with his most senior colleagues.  Many of the older Susman Godfrey lawyers referred to him as “Dad” and it was more-than-half serious.  Steve played a fatherly role at the firm, even if he was a father whose words of wisdom were liberally sprinkled with F-bombs, dares, and raucous laughter. Through the power of his personality and intellect he imparted to generations of Susman Godfrey lawyers his dedication to hard work, intellectual rigor, zealous but honest advocacy, candor in dealing with clients and courts, entrepreneurial inventiveness, devotion to the legal system, and social consciousness.

We all knew that the Steve Susman era would end at some point, but that did not stop us from hoping in our hearts that he would be with us at Susman Godfrey forever.  When he flirted with retirement two years ago, the partnership responded by unanimously adopting a policy of mandatory retirement at age 100.

Our hearts go out to Steve’s wife Ellen, his son Harry and wife Karen, his daughter Stacy and husband Tom, his step-daughter Whitney and husband Matt, his step-daughter Amanda and husband Matt, his brother Tommy and wife Susan, his eight grandchildren, and his entire law firm family.

We will miss Steve tremendously as we carry on his legacy, practicing law the way Steve taught us, honoring the values he imparted, treasuring the extraordinary camaraderie that he built. It is no surprise that when Steve was injured bicycling in April, he was with lawyers from his firm, young and old, moving forward, having fun, in the lead, pedaling as fast as he could.