If you work much on antitrust lawsuits, you learn the names of cases that inspire strong feelings on both sides of the "v." Concord Boat lives in that realm.

The Eighth Circuit ruled after a jury trial in Concord Boat Corp. v. Brunswick Corp., 207 F.3d 1039 (8th Cir. 2000), that 24 boat-makers had no antitrust claim against Brunswick, the dominant provider of boat engines. The vessel-builders alleged that Brunswick kept its top engine spot by keying discounts to how few engines boat-makers bought from Brunswick rivals. A jury agreed and found Brunswick guilty of violating the Sherman Act, awarding more than $140 million (after trebling). But the Eighth Circuit reversed and directed entry of judgment for Brunswick. Id. at 1063.

What makes Concord Boat hateful to plaintiffs and marvelous to defendants? Blawgletter senses that the total acceptance by the court of Brunswick's multitudinous arguments explains much of the passion. The panel held that:

  • Limitations barred the plaintiffs' claims under section 7 of the Clayton Act;
  • The damages findings could not stand due to the failure of the secion 7 claims;
  • The plaintiffs' expert on liability didn't account for "all relevant circumstances", and his testimony therefore carried no weight;
  • The evidence failed to show enough "foreclosure" of competition, enough exclusivity, and enough barriers to entry by competitors to make out a section 1 claim; and
  • Brunswick's "market share" discounting didn't amount to anticompetitive conduct.

You see? Something to use for almost every defendant, and something to overcome for just about every plaintiff.

Blawgletter has a reason for mentioning Concord Boat today. For on this date, in Southeast Missouri Hospital v. C.R. Bard, Inc., No. 09-3325 (8th Cir. June 8, 2011), an Eighth Circuit panel split 2-1 in favor of okaying a discount program that, Concord Boat-like, rewarded hospitals for their loyalty to a catheter-maker rather than the volumes of catheters they bought from it. And, citing Concord Boat, the majority held that the case turned mainly on the failure by a class of hospitals "to identify a relevant submarket". Id., slip op. at 16.

The duo seem to have meant by "relevant submarket" that they didn't accept the plaintiffs' product market definition, which focused on competition by catheter-makers for contracts with group purchasing organizations (GPOs). Competition at that level mattered, the plaintiff hospitals urged, because hospitals buy almost all of their catheters from the vendor — in this case, overwhelmingly C.R. Bard – that secures cathether contracts with GPOs. Hospitals suffer as a result of the winning vendors' freedom, as a result of the contracts, to sell catheters to an effectively captive group of buyers. But the panel said no to that.

The dissenting judge would have answered the opposite way. Judge Beam wrote that the hospitals

did present evidence tending to show that (1) both purchasing hospitals and medical manufacturers recognized GPO sales as separate and distinct from non-GPO sales; (2) the GPO prices were distinct from non-GPO prices; (3) a small but significant non-transitory increase in price in the GPO sales did not cause customers to switch to a different distribution channel; and (4) the GPO's were, in effect, specialized vendors.

Id. at 21-22 (discussing factors for identifying "submarkets" under Brown Shoe Co. v. United States, 370 U.S. 294, 325 (1962)). The record thus raised a fact question about the relevant market, Judge Beam concluded.

We have a few thoughts about the outcome.

First, we marvel at how anti-antitrust (and anti-jury) the Concord Boat opinion reads and feels more than a decade after its advent.

Second, we note that, for reasons we cannot fathom, the majority opinion cites and quotes the Horizontal Merger Guidelines from 1992 — despite the fact that the Department of Justice and Federal Trade Commission overhauled them last year!

Finally, Southeast Missouri reflects the courts' reluctance to treat "bundling" as anticompetitive. The Ninth Circuit last week upheld dismissal of a bundling case (on the ground that forcing cable and other TV-channel distributors to buy "must-have" and junk channels may have injured competitors and consumers but not "competition" itself). The Third Circuit in LePage's, Inc. v. 3M, 324 F.3d 141 (3d Cir. 2003) (en banc), cert. denied, 542 U.S. 953 (2004), upheld a verdict and judgment in a case involving discounts and rebates to customers that bought 3M products other than tape. Defendants argue that granting discounts ALWAYS aids competition and favors buyers, and courts find that siren call hard to resist.

Should they? Do bundles ALWAYS promote competition?

Email this postShare this post on LinkedIn
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.