imageIn this post, I will tell you my Antonin Scalia story — and about his role in limiting class actions.

A deal

Late one night in 2012, my friend Joe Goldberg and I took I-95 south from Boston. We had just signed a memorandum of settlement with Comcast in a class action. We had also just missed the day’s last flight (and its final train) to New York but pressed on with the help of Hertz.

The U.S. Supreme Court had conferred about the nine-year-old case several times since Comcast had sought review in January. At 9:30 that morning, soon after the mediation began, we had checked the Court’s website to see whether its list of orders mentioned Comcast Corp. v. Behrend.

It hadn’t. We arrived in Manhattan early on a late-spring day. We felt good — and fortunate.

Some luck

Our luck didn’t last. Two weeks later, on June 25, the Court granted review after all. And the settlement collapsed.

Although we tried to enforce the deal, the district court found it non-binding. That the terms fit on a single piece of paper may not have helped.

Scalia’s role

Justice Scalia must have pushed to take Comcast. We won’t know for sure for awhile, but the evidence looks strong.

In the last Term of the Court, he had written a 5-4 majority opinion that, although foiling a class action, left open a key issue. The question concerned whether the test for expert opinion evidence under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), applied to a pre-trial motion to certify a case as class action. The district court in the 2011 case, Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), held that Daubert did not apply to expert testimony at the certification stage of class-action proceedings. “We doubt that is so,” Justice Scalia wrote, leaving no doubt about how he would resolve the issue.

Why does that matter? Because in taking the Comcast case, the Court changed the Question Presented. It went from:

[W]hether a district court may certify a class action without resolving ‘merits arguments’ that bear on Rule 23’s prerequisites for certification, including whether purportedly common issues predominate over individual ones under Rule 23(b)(3).


Whether a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.

The bit about “admissible evidence, including expert testimony,” pertained to Daubert. Comcast provided a way to scratch Justice Scalia’s Daubert itch.

A presence

Because of that background, Justice Scalia naturally played an outsize role in how I got ready for the argument.

He had prompted the Court to “relist” the case an extraordinary eight times.

He had shown had a special interest in class actions. Most recently, he had written for the 5-4 majorities in Wal-Mart Stores, Inc. v. Dukes as well as another class-action killer, AT&T Mobility LLC v. Conception, 563 U.S. 333 (2011). And he did not like class actions at all, viewing them as distortions (if not perversions) of the classic model of contests between parties who come to court in person.

Plus he didn’t suffer fools gladly. His propensity for “sarcastic put-downs” and “tart wit” (per the Times‘s Adam Liptak) and comfort in a forum he had long ago mastered but I hardly knew made preparing with him firmly in mind non-optional.

I in short expected a hard time from Justice Scalia and prepared accordingly.

How to prepare for a debut

Having never argued in the Court before and with Justice Scalia as a motivator, I spent a lot of time getting ready. From June to November, my regimen included the following:

  • writing the brief on the merits (the best way to learn the cases and master the record)
  • typing out summaries of the main cases that the briefs cited — and many more
  • making a list of key excerpts from the record
  • doing practice arguments at Public Citizen and Georgetown Law School and a CLE program for a New York bar group
  • watching half a dozen oral arguments and listening to other arguments from the Court’s collection of audio recordings
  • researching the justices’ experience on the bench (only Justice Sotomayor had served as a district judge) and the history of the other side’s lawyer, Miguel Estrada, with the justices
  • talking with Tom Goldstein and others who had argued cases to the Court
  • reading “Thoughts on Presenting an Effective Oral Argument”, a 1997 gem by John G. Roberts, Jr.

Another important source of information came from Justice Scalia himself. In 2008, he co-wrote Making Your Case: The Art of Persuading Judges with my friend Bryan Garner. I found the guidance on oral argument especially worthwhile — notwithstanding the Roberts advice that we should “[b]e particularly skeptical of advice on how to argue an appeal from appellate judges.”

(By the way, if you go to an argument at the Court to help prepare for your big day, don’t count on having a chance to stand at the lecturn to see how the world looks from there. The Court’s courteous but stern security people would not allow me to do it, although I asked very nicely.)

The event itself

On November 5, 2012, I went second. My part lasted 30 minutes. I had a blast.

At the end of my argument, Justice Scalia wanted to ask me a question about Daubert. This exchange ensued:

JUSTICE SCALIA: Mr. Barnett, suppose — suppose we held that where — where there’s a bench 2 trial, it doesn’t make any difference what — what — whether the judge excludes the evidence under Daubert — I never know how to say it. Is it Daubert or Daubert?


MR. BARNETT: It depends on the time of day, Your Honor.


JUSTICE SCALIA: Yes, I think you’re right.


Justice Scalia gave every impression of enjoying oral arguments. He obviously adored language, and he loved verbal jousting, both on the page and in person. You have to admire the pugilistic exuberance.

But he went overboard with Comcast — and class actions generally. He’d worked hard to get the Court to take up Comcast in hopes of finishing the class-unfriendly Daubert business he could not complete in Wal-Mart Stores, Inc. v. Dukes.

He doubled down after we advised the Court that Comcast had not made a Daubert objection and had therefore forfeited the question, apparently leading the Court to convene a highly unusual post-argument conference and propelling the 5-4 majority to persist in spite of having to change the Question Presented after the argument. The maneuver prompted Justices Breyer and Ginsburg to write an extraordinary joint dissent, which they then delivered before arguments started in the first Affordable Care Act case.

Justice Scalia went on to author more  opinions against class actions, including American Express Co. v. Italian Colors Restaurant, 133 S. Ct. 2304 (2013). And cases this Term carried a real risk that class actions would become far less useful and much rarer. He in fact did more than any other judge to limit class actions, and his absence from the Court may have saved many from oblivion.

Which raises the question: Will his successor feel less hostile towards class actions? Should she?


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.