1998-134-4_newSnappy reclines. The Empire State Building looms in the mid-distance. Bitey consults his notes. He clears his throat.

Bitey:    The U.S. Supreme Court's summer break started last week, Snaps, and the time has come for us to look at the . . . uh . . . results of the 2012-13 Term for those commercial cases we love so dear.

Snappy:    Polonius said "brevity is the soul of wit." Please model yourself on that maxim.

Bitey:    You mean the guy who talked way too much? Hid behind a curtain? Said "very like a whale"? And took a Hamlet knifing that killed him?

Snappy:    You prove my point by missing it.

Bitey:    Ouch.

Snappy:    You do it to yourself, my dear Bitey.

Bitey:    Anyways, I count 15 Supreme Court cases that involved commercial issues — the kind of questions that tend to pit Company A against Entity B.

Snappy:    And how did Big Business do against the Little Guy?

Bitey:    Oh, quite well, Your Snappiness. I can tell because those nice liberterian people at the Cato Institute said they "went 15-3" in cases it briefed to the Court this Term! And Cato won all four of the commercial cases it weighed in on. Not to mention the U.S. Chamber of Commerce's National Chamber Litigation Center, which did almost as well, going 6-2.

Snappy:    Did Polonius say anything about the rich getting richer?

Bitey:    I think you mean Andrew Jackson, Snapster.

Snappy:    Not. Have you tallied the results of the 15 cases, pray?

Bitey:    Yes, indeed I have done that.

Snappy:    And?

Bitey:    By my count, big business won 10 ouf of the 15.

Snappy:    That sounds awful. But not horrific? Please tell me the details.

Bitey:    Okie dokie. Here goes. I put the pro-big biz outcomes in red and left the others in black.

Alien torts

Does the Alien Tort Statute, which Congress passed in 1789 to allow "any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States", cover a law-of-nations violation that occurs outside the U.S. (in Nigeria, say)?

No. The ATS will almost never apply to alien torts that take place in an alien nation. Kiobel v. Royal Dutch Petroleum Co., No. 10-1491 (U.S. Apr. 17, 2013) (Cato & Chamber win) (per Roberts, with Scalia, Kennedy, Thomas, and Alito joining; dissent per Breyer, with Ginsburg, Sotomayor, and Kagan joining).


Does the "state-action" doctrine, which bars federal antitrust claims, apply to a Georgia law that gave public hospital authorities the power to buy rival hospitals?

No. The Peach State statute did not make clear that Georgia cared not a fig if anticompetitive effects ensued from using the power in order to squelch competition. FTC v. Phoebe Putney Health Sys., Inc., No. 11-1160 (U.S. Feb. 19, 2013) (per Sotomayor, for a unanimous Court).

May a drug-maker pay a rival not to compete with it on sales of a drug so long as the payor has a patent that on its face gives it the right to stop the rival from competing?

No. Antitrust law may condemn the pact, and allow recovery of damages or other relief, if the deal unduly hurts competition. The bigger the payment to the infringer, the more likely the arrangement harms competition. FTC v. Actavis, Inc., No. 12-416 (U.S. June 17, 2013) (per Breyer, with Kennedy, Ginsburg, Sotoyamor, and Kagan joining; dissent by Roberts, with Scalia, and Thomas joining; Alito recused himself).


Does the federal Arbitration Act bar arbitration clauses that make winning a federal claim too costly for a sane person to pursue?

No. "Too darn bad", says the dissent. Am. Express Co. v. Italian Colors Restaurant, No. 12-133 (U.S. June 20, 2013). (Chamber win) (per Scalia, with Roberts, Kennedy, Thomas, and Alito joining; dissent by Kagan, with Ginsburg and Breyer joining; Sotoyamyor recused herself).


Does the bar to discharge in bankruptcy under 11 U.S.C. 523(a)(2)(A) of a claim for "defalcation while acting in a fiduciary capacity" require knowledge or reckless disregard of the improper nature of the bankrupt debtor's conduct?

Yes. You can't prevent discharge of a claim against a fiduciary unless you prove that the fiduciary had a bad intent. Bullock v. BankChampaign, N.A., No. 11-1518 (U.S. May 13, 2013) (per Breyer, for unanimous Court).

Class/Collective Actions

Must a plaintiff who alleges a fraud claim under the Securities Exchange Act of 1934 prove the "materiality" element of the claim in order to obtain class treatment of the claim on behalf of all fraud victims under Rue 23(b)(3) of the Federal Rules of Civil Procedure?

No. Because the answer to the materiality question will apply to all class members alike, Rule 23(b)(3) does not require a court to assess the evidence for and against a finding of materiality and instead defers the question to the summary judgment and trial stages of the case. Amgen Inc. v. Connecticut Retirement Plans & Trust Funds, No. 11-1085 (U.S. Feb. 27, 2013) (Chamber loss) (per Ginsbrug, with Roberts, Breyer, Alito, Sotomayor, and Kagan joining; dissent by Scalia, with Kennedy and Thomas joining).

Does an arbitrator's ruling on whether the parties' contract permits class treatment of claims bind the parties under the federal Arbitration Act?

Yes. Even a dumb ruling by an arbitrator carries the day so long as he ties it somehow to the contract. Oxford Health Plans LLC v. Sutter, No. 12-135 (U.S. June 10, 2013) (Chamber loss) (per Kagan, for unanimous Court).

Does the mootness of a plaintiff's own claim under the Fair Labor Standards Act of 1938 also moot his effort to sue on behalf of others?

Yes. If offering to pay full damages and costs to the plaintiff in fact moots his claim — a matter of great dispute between the majority and dissenters — he cannot represent others in a collective action (or, presumably, in a class action). Genesis Healthcare Corp. v. Symczyk, No. 11-1059 (U.S. Apr. 16, 2013) (Chamber win) (per Thomas, with Roberts, Scalia, Kennedy, and Alito joining; dissent by Kagan, with Ginsburg, Breyer, and Sotomayor joining).

Did the plaintiffs' model that proved class-wide damages from Comcast's drive to thwart cable competition in greater Philadelphia prove class-wide damages?

No. The majority read the record to establish that the model did not match the anticompetitive conduct with the resulting harm in all 16 counties. (Blawgletter respectfully begs to differ.) Comcast Corp. v. Behrend, No. 11-864 (U.S. Mar. 27, 2013) (Cato & Chamber win) (per Scalia, with Roberts, C.J., and Kennedy, Thomas, and Alito joining; dissent by Ginsburg and Breyer, with Sotoymayor and Kagan joining).

May a plaintiff defeat removal of a class action case from state to federal court under the Class Action Fairness Act of 2005 by claiming that the amount in dispute falls below the $5 million threshold for removal?

No. The plaintiff cannot bind the absent class members before class certification. Standard Fire Ins. Co. v. Knowles, No. 11-1450 (U.S. Mar. 19, 2013) (Cato & Chamber win).


Does the "first sale" doctrine of copyright law defeat claims against U.S. sales of copies that began life overseas? 

Yes. You can import into the U.S. books and copies of other works that someone lawfully made outside the U.S. Kirtsaeng v. John Wiley & Sons, Inc., No. 11-697 (U.S. Mar. 19, 2013) (per Breyer, with Roberts, Thomas, Alito, Sotomayor, and Kagan joining; dissent by Ginsburg, with Kennedy and Scalia joining (Scalia only in part)).


Did Monsanto "exhaust" its right to stop infringement of its patent on a strain of soybeans when it sold beans that could produce infringing crops in the future?

No. The defendant's "blame the bean" defense did not persuade the Court. Bowman v. Monsanto Co., No. 11-796 (U.S. May 13, 2013) (per Kagan, for a unanimous Court).

Does U.S. patent law allow patents on tests that flag a patient's higher risk of getting cancer by detecting an abnormal gene sequence that influences the cancer risk?

No. You can't patent a law of nature or a process that simply uses a law of nature. Ass'n for Molecular Pathology v. Myriad Genetics, Inc., No. 12-398 (U.S. June 13, 2013) (per Thomas, with Roberts, Kennedy, Ginsburg, Breyer, Alito, Sotomayor, and Kagan joining; Scalia concurred in part and in judgment).


Does the "discovery rule" stop the five-year statute of limitations from running against the federal government on a civil claim for violation of the Investment Advisors Act?

No. Although private parties may invoke the discovery rule under federal securities law, the feds cannot. Gabelli v. SEC, No. 11-1274 (U.S. Feb. 27, 2013) (Cato & Chamber win) (per Roberts, for unanimous Court).


Does a broad promise not to sue for trademark infringement and like state-law claims moot a claim for a judgment declaring the trademark invalid?

Yes. A covenant not to sue can remove any real risk of a lawsuit and therefore moot the dispute. Already, LLC v. Nike, Inc., No. 11-982 (U.S. Jan. 9, 2013) (per Roberts, for unanimous Court; Kennedy concurred, and Thomas, Alito, and Sotomayor joined him).

Snappy:    Thanks, Bitey. I learned a lot! But I get the feeling that plaintiffs did worse than the 10-5 tally suggests. Do you think so?

Bitey:    Absolutement, Snappers. Remember that Cato won all four of its cases, and the Chamber's NCLC lost only two out of eight. The wins will have wider impact than the losses.

The Cato angle reminds me of Inspector Clouseau. Without the humor.

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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.