Blawgletter wrote a paper class cert in antitrust cases for a Practising Law Institute program that went webinar last month. Read it here if you dare:

Where to file.  From a plaintiff's perspective do you have favorite courts to file antitrust class actions.  What are the undesirable courts from a defense perspective.  Are there circuits that are relatively more plaintiff or defense friendly?

The rules on changing venue[1] and centralizing multidistrict litigation[2] of course restrict choices among district courts.  The MDL process creates more uncertainty due to the weight the Judicial Panel on Multidistrict Litigation[3] gives to parties’ preferences; individual judges’ case loads, experience, and willingness to take on extra work; the locations of grand juries; and other factors that don’t often figure into regular motions to transfer venue.

Within those limits, the circuit’s law on the substantive issues matters as much as, or more than, any sense that one circuit treats class actions more favorably than others do.   You wouldn’t bring a reverse-payment settlement case, for example, in the Second, Eleventh, or Federal Circuit but would instead bring one, if at all, in the Sixth.[4] 

Beyond that, most lawyers who represent antitrust plaintiffs would likely gravitate to the circuits that have the most expertise in antitrust class actions – the Second, Third, Seventh, Ninth, and D.C. Circuits.  The Third and Seventh stand out, partly due to their strong historical interest in class actions and antitrust law.  Recent examples include Hydrogen Peroxide and its progeny[5] in the Third Circuit and Text Messaging[6] in the Seventh.

The Fifth Circuit seems to have won a reputation for using “license” to toughen class certification standards, at least in securities law cases.[7]

Pleading: How has the Twombly pleading test impacted antitrust class certification cases?  Have there been changes in the types of antitrust class actions you are seeing?  Are nearly all cases section 1 price fixing cases?

The courts of appeals have just started grappling with how Twombly and Iqbal affect class certification.  None seems to have addressed the question yet.  In at least one case, a district court rejected a defense motion to deny class certification under Twombly and Iqbal, holding that the complaint does not “fail[] to plausibly allege fact consistent with a class action.”[8]

But the question remains of how Twombly’s plausibility test intersects with Hydrogen Peroxide, In re IPO,[9] and other decisions that require some delving into the merits.  The Third Circuit hinted at an answer in In re Ins. Brokerage Antitrust Litig., where the court noted that “Twombly aligns the pleading standard with the summary judgment standard” by requiring “evidence of record . . . of ‘something more than merely parallel behavior’ . . . something ‘plausibly suggest[ive of] (not merely consistent with) agreement’”.[10]   If Twombly defines the summary judgment standard, doesn’t it also set the test for whether plaintiffs have shown, by a preponderance of the evidence, that they have satisfied the predominance requirement of Rule 23(b)(3)?  Common issues can’t predominate, the reasoning goes, if the class-wide evidence that plaintiffs offer (to show, for example, antitrust impact) fails to support a plausible antitrust claim.  As a formal matter, plaintiffs may have to show under Rule 23 that they can support their Twombly-plausible antitrust claims with evidence common to all, or almost all, class members.

Case management/scheduling.  Does dividing discovery into class and merits phases make sense — for judicial economy?  For plaintiffs?  For the defense?  What is the common practice now — concurrent class and merits work or staggered?  Have you seen any innovations in case management or scheduling?

Putting discovery into class and merits phases never did make much sense for plaintiffs, and it makes even less sense now.  Under Hydrogen Peroxide, IPO, and like decisions, plaintiffs must furnish evidence that shows, by a preponderance, their ability to support plausible antitrust claims with proof common to the class.  They can’t get away with saying we think we can establish, for example, that almost all class members sustained antitrust injury/impact and that they can calculate damages using a class-wide methodology.  And of course the Supreme Court in Twombly pooh-poohed the very idea of phasing discovery in antitrust cases, deeming it “an undertaking not easily susceptible to the kind of line drawing and case management that the dissent envisions.”[11]

But plaintiffs shouldn’t shy from limiting discovery to what they need.  Lawyers in my firm routinely offer to restrict each side’s initial production of electronic documents to the five custodians that the other side chooses.  The Seventh Circuit’s pilot project on e-discovery and the Sedona Conference also favor phasing discovery to start with the easy stuff – the most accessible and relevant documents and information.[12]  And Rule 26 requires courts to impose limits where the discovery “can be obtained from some other source that is more convenient, less burdensome, or less expensive.”  Fed. R. Civ. P. 26(b)(2)(C)(i).

Experts.  What are best and worst practices in managing experts?  Also, are there any innovations in managing costs generally?  In antitrust cases, what types of experts are used in class certification — is it always economists?

Managing experts in antitrust cases means quality and cost control.  Lead counsel needs to take responsibility for both.  That will require him or her to interview candidates in order to make judgments about their suitability for the subject matter and their skill at giving persuasive testimony at hearings and trial; to minimize duplication of effort; to require each expert to do, or closely supervise, the grunt work; to monitor billings; and to encourage concise reports, which cost less and avoid errors.

Experts generally work on an hourly basis, but many will take on discrete projects for flat fees.  The flatness of the fee tends to lower costs.  Chances to negotiate flat fees present themselves most often at the start of a case.  You should at all events require a budget.  You should also consider agreeing with the other side not to depose any expert who submits a report that fully covers all opinions.

Economists account for most of the experts who work on antitrust cases.  Econometricians and statisticians come in second, usually either to support or rebut opinions of economics experts or to present their own opinions on damages.  Industry experts may also prove necessary to provide building blocks for the opinions of an economist or econometrician/statistician.

Certification decision. What makes certification easier in some cases and harder in others?  In your opinion, what is the most significant recent class certification decision?

Certification comes easier in per se cases, particularly price-fixing cases.  That happens mainly because you don’t have to prove the building blocks of market power – including relevant geographic and product markets, defendant’s share of the relevant market, and market dynamics.  Monopolization cases, and rule of reason cases under section 1, involve a lot more economics and econometrics and therefore pose much greater risks for the plaintiff.

Several cases qualify for consideration as the most significant one for class certification in recent years.  They include:

  • Hydrogen Peroxide, IPO, and New Motor Vehicles[13] for making clear that Eisen[14] no longer bars, if it ever did bar, weighing of a merits question so long as the issue somehow overlaps with or relates to a Rule 23 requirement.
  • Schleicher v. Wendt[15] for refusing to require plaintiffs to go beyond pleading a claim element (loss causation) despite defendants’ argument that certification analysis must address plaintiffs’ ability to prove the element at trial and Archdiocese of Milwaukee Supporting Fund, Inc. v. Halliburton Co.[16] for requiring the opposite.[17]

Appeals.  How has interlocutory review affected class certification in antitrust cases?

The possibility of a Rule 23(f) appeal increases the time and cost of certification proceedings.  The threat of reversal forces greater care by the parties and the trial judge.  The procedural and substantive guidance that courts of appeals have provided in Rule 23(f) appeals has shifted the law towards tougher certification standards.  The need to address the merits has pushed the class certification stage to at or near the end of discovery and the filing of motions for summary judgment.  The 20-page report by a single expert in favor of certification has therefore morphed into hundreds of pages by two or more experts.  Motion practice consisting of briefs and supporting expert affidavits has come to involve more and longer briefs and affidavits as well as multiple depositions, presentation of live testimony in multi-day evidentiary hearings, submission of dueling findings and conclusions, and much else.

The possibility of appeal also reduces the likelihood of early settlement.  Indeed, “early” no longer means within a year after the filing of a complaint and now signifies at least twice that.

Trials.  Many of these cases settle after the certification decision.  Are any of these cases going to trial?  Are there any lessons from cases that get to verdict?

Few, if any, antitrust class actions have gone to trial since courts of appeals started tightening the standards for certification.  You would expect even fewer would reach the trial stage due to the fact that the cost of getting them there has risen so steeply.  Worse, interlocutory review will seldom increase the defendant’s perception of risk on the merits, making Rule 23(f) almost a pure cost, with little or no benefit, from the plaintiff’s perspective.  We’ll have to see a case get to verdict before drawing any lessons.

The future.  In the future, what issues are courts most likely to struggle with?  Where is there disagreement among the circuits?  What needs to be resolved?

The sharp change in the economics of antitrust class actions implies that plaintiffs will bring fewer cases, particularly rule of reason ones, and that settlements will cost defendants less.

Courts of appeals and the Supreme Court will need to sort out how deeply trial judges must delve – and how deeply they may delve – into the merits under guise of applying Rule 23 requirements.  The Supreme Court will explore the question in the Halliburton case,[18] a securities fraud lawsuit that pits the Fifth and Eighth Circuits against the Second and Seventh.

The Supreme Court may also speak to class actions seeking injunctive relief in the Dukes case,[19] which concerns the availability of certification under Rule 23(b)(2) where plaintiffs seek important money relief in addition to equitable relief.  The ruling may touch on a question before the en banc Third Circuit in the DB Investments case, [20] although the court seems likely to focus far more on whether indirect purchaser claims predominate where some class members have no viable claim under governing state law.

[1] See 28 U.S.C. § 1404.

[2] See id. § 1407.

[3] For basic information about the Panel, see

[4] Compare Schering-Plough, Inc. v. Fed’l Trade Comm’n, 402 F.3d 1056 (11th Cir. 2005) (holding that reverse-payment agreement did not violate Sherman Act), cert. denied, 548 U.S. 919 (2006); In re Tamoxifen Citrage Antitrust Litig., 466 F.3d 187 (2d Cir. 2006) (same), cert. denied, 127 S. Ct. 3001 (2007); In re Ciprofloxacin Hydrochloride Antitrust Litig., 544 F.3d 1323 (Fed. Cir. 2008) (same), cert. denied, 129 S. Ct. 2828 (2009), with In re Cardizem CD Antitrust Litig., 332 F.3d 896 (6th Cir. 2003) (holding that reverse payment agreement per se violated section 1).

[5] In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305 (3d Cir. 2008) (setting test for class treatment in price-fixing cases); Sullivan v. DB Investments, Inc., 613 F.3d 134 (3d Cir.), vacated and rehearing en banc granted, 619 F.3d 287 (3d Cir. 2010).

[6] In re Text Messaging Antitrust Litig., 2010 WL 5367383 (7th Cir. Dec. 29, 2010) (holding that complaint alleging conspiracy to fix prices satisfied Twombly and Iqbal pleading standards).

[7] Schleicher v. Wendt, 618 F.3d 679, 686 (7th Cir. 2010) (rejecting Oscar Private Equity Investments v. Allegiance Telecom, Inc., 487 F.3d 261 (5th Cir. 2007), to extent it required plaintiffs to prove loss causation in class certification proceedings).  The Supreme Court granted review in a case that followed the rule in Oscar Private EquitySee infra note 15 and accompanying text.

[8] Boyce v. Wachovia Securities LLC, 2010 WL 1253737, at *4 (N.D.N.C. Mar. 29, 2010); see Capps v. U.S. Bank Nat’l Ass’n, 2009 WL 5149135, at *7 (D. Or. Dec. 28, 2009) (denying motion to dismiss “plaintiffs’ class-related allegations”); Hodczak v. Latrobe Specialty Steel Co., 2009 WL 911311, at *9 (W.D. Pa. Mar. 31, 2009) (recommending that district court grant motion to dismiss “collective action” allegations); Holtzman v. Caplice, 2008 WL 2168762, at *2 (N.D. Ill. May 23, 2008) (declining to apply Twombly to allegations to satisfy numerosity requirement under Rule 23(a)); Truxillo v. Johnson & Johnson, 2007 WL 4365439, at *1 (W.D. La. Dec. 12, 2007) (ruling that “plaintiff does state a claim for class action certification ‘that is plausible on its face.’”) (quoting Twombly, 550 U.S. at 570)

[9] In re Initial Public Offerings Sec. Litig., 471 F.3d 24 (2d Cir. 2006).

[10] In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 322 (3d Cir. 2010) (quoting Twombly, 550 U.S. at 560 & 557).

[11] Twombly, 550 U.S. at 560 n.6.  The quote refers to discovery on the question of whether local telephone companies agreed not to compete outside their respective home territories.

[12] See Seventh Circuit Electronic Discovery Pilot Program at 11-12 (2009) (stating principle that parties should meet and confer before initial status conference on “the potential for conducting discovery in phases or stages as a method for reducing costs and burden”) (available at; The Second Conference Commentary on Proportionality in Electronic Discovery, The Sedona Conf. J. 290, 297 (Fall 2010) (stating that “the court, or the parties on their own initiative, may find it appropriate to conduct  discovery in phases, starting with discovery of clearly relevant information located in the most accessible and least expensive sources. ”) (available at

[13] In re New Motor Vehicles Can. Exp. Antitrust Litig., 522 F.3d 6 (1st Cir. 2008).

[14] Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974).

[15] 618 F.3d 679 (7th Cir. 2010).

[16] 597 F.3d 330 (5th Cir. 2010), cert. granted, 131 S. Ct. 856 (2011).

[17] Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571 (9th Cir.) (en banc), cert. granted, 131 S. Ct. 795 (2010), chiefly involves certification under Rule 23(b)(2), which has less relevance to antitrust cases than Rule 23(b)(3).

[18] See supra note 16 and accompanying text.

[19] See supra note 17.

[20] Sullivan v. DB Investments, Inc., 08-2784 (3d Cir.).  The panel held, among other things, that the district court erred in certifying a Rule 23(b)(2) class because DeBeers no longer posed a real threat to competition.  The court has set oral argument to the full court for February 23, 2011.

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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.