California law favors class actions.  So much so that Golden State courts have struck down class-action bans that show up in consumer contracts whether they apply to lawsuits, Discover Bank v. Superior Court of Los Angeles, 113 P.2d 1100 (Cal. 2005), or arbitration cases, America Online v. Superior Court, 108 Cal. Rptr. 2d 699 (Cal. App. 2001).  And federal courts applying California law in the Ninth Circuit have followed suit.

But it may not last.  The biggest threat to California's stance took center stage at the the U.S. Supreme Court on November 9.  The Court heard argument that morning in AT&T Mobility, LLC v. Concepcion, No. 09-893 (U.S.), a case from the Ninth Circuit, where AT&T lost.  The company hopes to beat the court of appeals ruling by claiming that California's distaste for bans on class actions tilts the playing field against arbitration.  That, AT&T asserts, defeats section 2 of the federal Arbitration Act, which section states that courts must enforce arbitration agreements "save upon such grounds as exist at law or in equity for the revocation of any contract".  Section 2, in the AT&T view, preempts the California rule.

The UCL Practitioner's Kimberly Kralowec posted links to news reports and scholarly-esque reactions to the argument in Concepcion the day after.  Most opiners — make that all opiners — opined that the hour went better for the class action favorers than they'd expected and that the Concepcions stand a decent chance of winning.

Blawgletters sees more cause for doubt.  

The transcript of the argument suggests to us four justices in favor of upholding California's approach and three against.  Justices Breyer, Ginsburg, Kagan, and Sotomayor all asked questions that imply a simple view of the main issue:  California's rule that both lawsuits and arbitrations must make class actions an option proves the absence of bias against arbitration.  Questions by Chief Justice Roberts and Justices Alito and Scalia, on the other hand, suggest that they believe California only pretends at using neutral rules, which in fact stack the deck against arbitration.

Justice Thomas, who said nothing, as he always does, may go for the Concepcion's federalism tack, which asserts that the Court should avoid holding that federal law preempts state law.  Our friend Paul Bland watched the session live and said that in his silent way Justice Thomas seemed downright lively. Bland added that, despite his conservative bent, Justice Thomas just might supply the fifth vote in favor of keeping the California rule.

That leaves Justice Kennedy.  What does he think?  He said these things:

[During the argument of AT&T's lawyer]

But it seems to me that all State — most State statutes pertaining to contracts pertain to a class that is not entirely universal.  Suppose that a State had a statute referring to banks, contracts with banks.  That doesn't apply to all contracts.  It doesn't apply to railroads.  But we know that it applies to a class that generally includes both arbitration and non-arbitration.  And that's this case, because there can be a class action rule with respect to litigation and class action rules with respect to arbitration.  So you have to have some rule that recognizes that you don't have to have the entire universe of contracts.  And I'm not quite sure what your test is.  You have a few of them in your brief.

[During the argument of the Concepcions' lawyer]

Suppose that this doesn't have what's called a blowout clause.  Suppose that that kind of clause was not in there.  And the consumer opts out of the arbitration [and chooses to try his or her claim on a class basis].  Arbitration [on a class basis] doesn't — doesn't go well.  Anyway, can the consumer then insist on the arbitration that the consumer bargained for, the individual arbitration that the consumer bargained for?

So then the bank has to have — liability exposure for two different proceedings?

*   *   *   *

But you are saying then California can say it's unconscionable to allow the parties to agree that there will be just the single arbitration proceedings?  I don't see how the third parties are necessarily protected.  If you say that the consumer still has the election, that certainly isn't what they bargained for.  Maybe I'm — maybe that's just a quarrel with the content of the unconscionability standard.

Rather than the FAA [federal Arbitration Act], but I think it does bear on at least section 4 of the FAA.  [Section 4 provides that a party to an arbitration agreement has the right to ask a court to order arbitration "in the manner provided for" in the parties' contract.]

*   *   *   *

If you stick with the theory that the test is whether or not the law in question is inconsistent with the idea of arbitration — whose idea of arbitration?  What about, suppose it's the bank's idea of arbitration, that we — we want this settlement, say; we do not want that; that's the bank's idea of arbitration that the parties agreed on.

If you think Justice Kennedy's remarks leave you guessing at how he views the case, we join you.  But he did question the Concepcions' lawyer more, and the questions he posed did seem hostile to the simple view that the neutrality of the California rule — no class-action bans in court or in arbitration — resolves the case.

The outcome may pivot, as outcomes so often do in this Court, on Justice Kennedy's thoughts.  We can't read them and will likely have to wait for at least a few months, maybe even until the end of the Court's term in June 2011.  

And yet this time Justice Thomas may become the spoiler.  We look forward to the Court's ruling.

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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.