From the May issue of Barnett's Notes on Commercial Litigation:

Teddy Roosevelt's Department of Justice sued to bust up Standard Oil .

The signs of a tougher approach to bigness and badness have grown like . . . Google.

On May 18, 2008, presidential candidate Barack Obama said:

I will assure that we will have an antitrust division that is serious about pursuing cases.

There are going to be areas, in the media for example where we're seeing more and more consolidation, that I think [it] is legitimate to ask . . . is the consumer being served?

We're going to have an antitrust division in the Justice Department that actually believes in antitrust law. We haven't had that for the last seven, eight years.

Some of the consolidations that have been taking place, I think, may be anti-competitive.

Flash forward to April 20, 2009, when the U.S. Senate confirmed President Obama's nominee, Christine Varney, to head the Antitrust Division in the Department of Justice.

Two days later, Ms. Varney named  her top aides, all of them sporting pro-antitrust credentials.

But the coup de grace came on May 11, 2009.  On that day, Ms. Varney withdrew an antitrust-lite report that her agency had issued only eight months earlier, "Competition and Monopoly:  Single-Firm Conduct Under Section 2 of the Sherman Act ". 

The New York Times had called the report "a new set of guidelines that narrow the interpretation of abuse that would justify government intervention against monopolies.  It is a deregulatory gift aimed at getting pesky antitrust enforcers off of the back of big business."  The Federal Trade Commission had refused to sign it, deeming it "a blueprint for radically weakened enforcement of section 2 of the Sherman Act."

Plainly the mood has changed.  What can we expect from Ms. Varney's resurgent Antitrust Division?

1.  Merger challenges.  The previous administration did not contest any corporate mergers.  In her Senate hearing, by contrast, Ms. Varney wondered why the government gave a pass to mergers between XM and Sirius and Maytag and Whirlpool.  Last year, she also deemed an abortive Google-Yahoo deal on search ads "fundamentally anticompetitive. 

2.  Monopoly cases.   In dropping the Section 2 report, Ms. Varney said that "the Antitrust Division will be aggressively pursuing cases where monopolists try to use their dominance in the marketplace to stifle competition and harm consumers."  The "Don't Be Evil " guys, among others, likely got the message.

3.  ARRA fraud cases.  The American Recovery and Reinvestment Act of 2009 set aside $500 or so billion to revive the economy.  The Antitrust Division has created its own Recovery Initiative to help prevent "third-party fraud, waste, and abuse relating to the securing and use of ARRA funds."  We can also expect prosecutions.  We'll have to see whether the anti-fraud work carries over to other stimulus projects, such as the Troubled Asset Relief Program and the impending Public-Private Investment Program .

4.  Cartel litigation.  While praising the Division's recent record of fighting criminal cartel activity, Ms. Varney warned that, "[w]ith the higher levels of concentration and economic instability, markets are increasingly vulnerable to collusion and other fraudulent activity."

5.  Focus on technology.  Ms. Varney headed her firm's Internet practice group.  She said she wants to look at "other new areas of civil enforcement, such as those arising in high-tech and Internet-based markets."  She also  opined last year that "Google has acquired a monopoly in Internet online activity".

6.  Scrutiny of industries in distress.  The top economist in the Antitrust Division, Carl Shapiro, said on May 13, 2009, that "tough economic times . . . are exactly the times when suppliers may be most likely to seek some relaxation of the antitrust laws and most tempted to collude."

7.  More doubts at federal agencies on industry structure and pro-competitive arguments.  Ms. Varney rejected the Section 2 report in part because it "sound[ed] a call of great skepticism regarding the ability of antitrust enforcers – as well as antitrust courts – to distinguish between anticompetitive acts and lawful conduct, and raises the related concern that the failure to make proper distinctions may lead to 'over-deterrence' with regard to potentially procompetitive conduct."  We can expect that her aversion to the skepticism will carry over to other agencies.  The acting Chairman of the Federal Communications Commission, Michael Copps, spoke recently about "[t]wo decades of mindless deregulation" and "a veritable tsunami of consolidation across not just communications, but most business sectors . . . ."  And the new FTC Chairman, Jonathan Leibowitz, decried the Section 2 report as "chiefly concerned with firms that enjoy monopoly or near-monopoly power".

8.  An up-tick in follow-on civil cases.  Antitrust actions by government agencies tend to produce private civil actions also.  Expect to see more of both.

One thing Blawgletter would like to see but probably won't:  More attention in judicial nominations to views on competition law.  Although comments in the business press about Supreme Court nominee, Second Circuit Judge Sonia Sotomayor, do imply at least some interest in that area.

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Photo of Barry Barnett Barry Barnett

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.