From the July-August 2007 issue of Barnett’s Notes on Commercial Litigation:

Just after the dawn of the 20th century, a dissenting Justice Oliver Wendell Holmes, Jr., famously said that "great cases, like hard cases, make bad law".  He explained that a case’s greatness will "exert a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend."  Northern Securities Co. v. United States, 193 U.S. 197, 364 (1904).

What Did Holmes Intend?

He meant, I suspect, that judges — even his colleagues on the U.S. Supreme Court — cannot isolate themselves from forces at work in the communities where they live.  But, implying his own insensibility to public irrationality, Justice Holmes opined that the Sherman Act did not prohibit an agreement among several railroads not to compete with each other.  The hue and cry, the great Holmes suggested, impelled one set of lesser mortals (government lawyers) to seek an injunction against the monopoly and another group (the 5-4 majority) to uphold a judgment granting it.

History disagreed with Holmes on the merits.  But do let us ponder his analogy.  The power of hydraulic pressure allows a small force at point A to exert a larger force at point B within a mechanical system.  It thus pushes a big piston to raise the car rack so that a mechanic can fix the oil pan you busted when you drove too fast over a road hump.  But in Northern Securities Holmes used "a kind of hydraulic pressure" as a figure for distortion of judgment.

Inordinate Pressure to Settle

Which brings us to the recent rash of lower court decisions that decry "hydraulic pressure" to settle class actions.  The first reference, in 1995, may have warranted the name.  In In re General Motors Corp. Pick-Up Truck Fuel Tank Product Liability Litig., 55 F.3d 768, 790 (3d Cir. 1995), Circuit Judge Becker noted the deleterious effect of a certifying a sprawling class action for settlement:

Cases could be filed without any expectation or intention of litigation, with the foreknowledge that the natural hydraulic pressure for settlement may in fact lead to a class settlement, especially given the incentive a defendant has to bind as many potential claimants as possible with an approved class settlement.

The plaintiffs’ and defendants’ lawyers would get fat fees, and the defendants would buy peace cheap.  The pressure to certify — on the parties and the trial court — may have distorted judgment about the propriety of certification, with the potential that absent plaintiffs would get short shrift.

Later use of "hydraulic pressure" stands Judge Becker’s concerns on their head.  These instances don’t focus on judgment-distorting pressure to certify but on pressure to settle.  They thus infer that certification impels defendants to pay big money to resolve unmeritorious claims.  E.g., Hevesi v. Citigroup, Inc., 366 F.3d 70, 81 (2d Cir. 2004) (granting Rule 23(f) petition in part because, due to settlement pressure, "it is hard to conceive of many cases that are less likely than the instant case to yield an appealable final judgment"); De Asencio v. Tyson Foods, Inc., 342 F.3d 301, 311 (3d Cir. 2003) ("The aggregation of claims, particularly as class actions, profoundly affects the substantive rights of the parties to the litigation.") (emphasis added); In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 148 (2d Cir. 2001) ("Even a defendant who is innocent and holy may rationally choose to pay a few hundred million dollars in settlement of a class action rather than ‘run the risk of ruinous liability.’") (quoting Fed. R. Civ. P. 23 advisory committee’s note); Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 164 (3d Cir. 2001) (citing "inordinate or hydraulic pressure on defendants to settle, avoiding the risk, however small, of potentially ruinous liability" as factor favoring interlocutory review).

The slope has proved slippery.  In Regents of the Univ. of Calif. v. Credit Suisse First Boston (USA) Inc., 482 F.3d 372, 379 (5th Cir. 2007), the majority cited "particularly acute" pressure to settle as justification for Rule 23(f) review.  But the court went on to reverse certification because it rejected the merits of the class claims.  The majority even cited its concern about "opening the floodgates for nearly unlimited and frequently unpredictable liability" as support for its ruling that the claims couldn’t survive legal scrutiny.  Id . at 393.  "Pressure to settle" thus merged with an explicit weighing of the merits.


I have two observations on this perhaps inevitable consequence of allowing practically limitless interlocutory review of class certification decisions.  The first concerns the absence of proof that settlement pressure encourages wrong certifications, either generally or in particular cases.  One would expect, in fact, that the very size of a case would promote greater care in district courts’ rulings under Rule 23.  See Regents,  482 F.3d at 380 (noting the district court’s "best of intentions" and "hurculean effort").

The second thought also comes from lack of evidence.  Courts appear to indulge an irrebuttable presumption  that pressure to settle produces unjust outcomes.  On what basis do they do that?  As far as I can tell, they take it as an article of faith.  They don’t cite studies.  They don’t even offer examples.  Do defendants actually misjudge the risk of class actions?  Do they truly overpay?  Count me skeptical.

The strongest cases get the most urgent cries of hydraulic pressure.  One can hardly blame the defendants, but judges needn’t accept their complaints at face value.  The focus should stay on evaluating the likelihood of error by the district court.  A settlement class may increase the danger of a mistake.  But mere bigness normally doesn’t — and it usually has the opposite effect.

Justice Holmes, in his very first dissent, sassed his Northern Securities colleagues by implying that they let public opinion bend their judgment.  He was wrong; they were right.  And, in the spirit of humility, which becomes us all, let us settle or try cases on their merits.  Let us allow doubt about settlement pressure in weak cases.  Cost of defense, perhaps.  Maybe a tiny bit more for the low but conceivable possibility of losing not only at trial but also on post-trial motions and appeal.  But please don’t pay more than that, friends, for bad cases.  You’ll have only believing in a myth to blame.

Barry Barnett

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Clients and colleagues call Barry Barnett an “incredibly gifted lawyer” (Chambers and Partners) who is “magic in the courtroom” (Who’s Who Legal), “the top antitrust lawyer in Texas” (Chambers and Partners), and “a person of unquestioned integrity” (David J. Beck, founder of Beck…

Clients and colleagues call Barry Barnett an “incredibly gifted lawyer” (Chambers and Partners) who is “magic in the courtroom” (Who’s Who Legal), “the top antitrust lawyer in Texas” (Chambers and Partners), and “a person of unquestioned integrity” (David J. Beck, founder of Beck Redden).

Barnett is a Fellow in the American College of Trial Lawyers, and Lawdragon has named him one of the top 500 lawyers in the United States three years in a row. Best Lawyers in America has honored him as “Lawyer of the Year” for Bet-the-Company Litigation (2019 and 2017) and Patent Litigation (2020) in Houston. Based in Texas and New York, Barnett has tried complex business disputes across the United States.

Barnett’s background, training, and experience make him indispensable to his clients. The small-town son of a Texas roughneck and grandson of a Texas sharecropper, Barnett “developed an unusual common sense about people, their motivations, and their dilemmas,” according to former client Michael Lewis.

Barnett has been historically recognized for his effectiveness and judgment. His peers chose him, for example, to the American College of Trial Lawyers and American Law Institute. His decades of trial and appellate work representing both plaintiffs and defendants have made him a master strategist and nimble tactician in complex disputes.

Barnett focuses on enforcement of antitrust laws, the “Magna Carta of free enterprise,” in Supreme Court Justice Thurgood Marshall’s memorable phrase. “Barry is one of the nation’s outstanding antitrust lawyers,” according to Joseph Goldberg, a member of the Private Antitrust Enforcement Hall of Fame. Named among Texas’s top ten antitrust lawyers of 2023, Business Today calls Barnett a “trailblazer” among the “distinguished legal minds” who “dedicate their skill and expertise to the maintenance of healthy competition in various sectors” of the Lone Star State’s booming economy. Barnett is also adept in energy and intellectual property matters and has battled for clients against a Who’s Who list of corporate behemoths, including Abbott Labs, Alcoa, Apple, AT&T, BlackBerry, Broadcom, Comcast, Dow, JPMorgan Chase, Samsung, and Visa.

Barnett commands a courtroom with calm and credibility and “is the perfect lawyer for bet the company litigation,” said Scott Regan, General Counsel of former client Whiting Petroleum. His performance before the Supreme Court in Comcast Corp. v. Behrend prompted the Court to withdraw the question on which it had granted review. The judge in a trial involving mobile phone technology called Barnett “one of the best” and that his opening statement the finest he had ever seen. Another trial judge told Barnett minutes after a jury returned a favorable verdict against the county’s biggest employer that he was one of the two best trial lawyers he’d ever come across—adding that the other one was dead.

A versatile trial lawyer, Barnett knows how to handle a case all the way from strategic pre-suit planning to affirmance on appeal. He’s tried cases to verdict and then briefed and argued them when they went before appellate courts, including the Second, Third, Fifth, and Tenth Circuits, the Supreme Court of Louisiana, and (in the case of Comcast Corp. v. Behrend) the Supreme Court of the United States.

Barnett is a sought-after public speaker, often serving on panels and talking about topics like the trials of antitrust class actions and techniques for streamlining complex litigation. He also comments on trends in commercial litigation and the implications of major rulings for outlets such as NPR, Reuters, Law360, Corporate Counsel, and The Dallas Morning News. He’s even appeared in a Frontline program about underfunding of state pensions, authored chapters on “Fee Arrangements” and “Techniques for Expediting and Streamlining Litigation” (the latter with Steve Susman) in the ABA’s definitive treatise on Business and Commercial Litigation in Federal Courts, 5th, and commented on How Antitrust Enforcers Might Think Like Plaintiffs’ Lawyers.

Clients and other hard graders have praised Barnett for his courtroom skills and legal acumen.

A client in a $100 million oil and gas case, which Barnett’s team won at trial and held on appeal, said Barnett and his team “presented a rare combination of strong legal intellect, common sense about right and wrong, and credibility in the courtroom.” David McCombs at Haynes and Boone said Barnett “has a natural presence that goes over well with juries and judges.”

Even former adversaries give Barnett high marks. Lead opposing counsel in a decade-long antitrust slugfest said “Barry is a highly skilled advocate. He understands what really matters in telling a narrative and does so in a very compelling manner.”

Barnett relishes opportunities to collaborate with all kinds of people. At the Center for American and International Law (CAIL), founded by a former prosecutor at Nuremberg in 1947 and headquartered in the Dallas area, he has served on the Executive Committee, co-chaired the committee that produced CAIL’s first-ever strategic plan, supported CAIL’s Institute for Law Enforcement Administration and other development efforts, and proposed formation of a new Institute for Social Justice Law. CAIL’s former President David Beck said “Barry is extremely bright” and is “very well prepared in every lawsuit or professional task he undertakes.”

Barnett is also a Trustee of the New-York Historical Society, a Sterling Fellow at Yale, a member of the Yale University Art Gallery’s Governing Board, a winner of the Class Award for his work on behalf of his college class, and a proud contributor to the Yellow Ribbon Program at Harvard Law. Barnett’s pro bono work includes leading the trial team representing people who are at greatest risk of severe illness and death as a result of being exposed to the novel coronavirus SARS-CoV-2 while being detained in the Dallas County jail—work for which he received the NGAN Legal Advocacy Fund RBG Award.

At Susman Godfrey, Barnett has served on the firm’s Executive Committee, Employment Committee, and ad hoc committees on partner compensation, succession of leadership, and revision of the firm’s partnership agreement. He also twice chaired the Practice Development Committee.

Barnett understands that clients face many pressures. Managing the stress is important, especially in matters that take years to resolve. He encourages clients to call him whenever they have a question or concern and to keep the inevitable ups and downs in perspective. He wants them to know that he will do his level best to help them achieve their goals. He also strives to foster trust and to make working with him a pleasure.

Cyrus “Skip” Marter, the General Counsel of Bonanza Creek in Denver and a former Susman Godfrey partner and client, said Barnett is “excellent about communicating with clients in a full and honest manner” and can “negotiate for his clients from a position of strength, because he is not afraid to take a case through a full trial on the merits.” Stacey Doré, the President of Hunt Utility Services and a former client, said that Barnett is “an excellent trial lawyer and the person you want to hire for your bet-the-company cases. He is client focused, responsive, and uniquely savvy about trial and settlement strategy.” A New York colleague said, “Barry is a joy to work with as co-counsel. He tackles complex procedural and factual hurdles capably, efficiently, and without drama.”

Barnett’s wide-ranging experience and calm, down-to-earth approach enable him to connect with clients, judges, jurors, witnesses, and even opposing counsel. He grew up in Nacogdoches, Texas. He co-captained his high school varsity football team as an All-East Texas middle linebacker while also serving as the Editor of Key Club’s Texas-Oklahoma District, won the Best Typist award, took the History Team to glory, and sang in the East Texas All Region Choir. As Dan Kelly of client Vistra Corp. put it, Barnett is “a great person to be around.”

Barnett is steady and loyal. He has practiced at Susman Godfrey his entire career. He and his wife Nancy live in Dallas and enjoy spending time in Houston and New York. Their daughter works for H-E-B in Houston, and their son is a Haynes and Boone transactions lawyer in Dallas.

As a member of Ivy League championship football teams in his junior and senior years at Yale and a parent of two Yalies, Barnett has no trouble choosing sides for “The Game” in November. And he knows how important fighting all the way to the end is. On his last play from scrimmage, in the waning minutes of The Game on Nov. 22, 1980, he recovered a Crimson fumble.

Yale won, 14-0.