Standard Oil Octopus: Past as Prologue

Stephen D. Susman, the founder of my firm and a titan in the antitrust bar, pioneered representing private antitrust plaintiffs on a contingent-fee basis.

Nobody knew better than Steve how to manage risk in antitrust cases — how to choose them, staff them, litigate them, win them. And no one knew better than Steve how to maximize his clients’ recoveries — and his law firm’s profits — from the many private antitrust cases the firm took on a contingent-fee basis.

I have thought a lot about whether the approaches Steve developed would help government lawyers at the Federal Trade Commission and the Antitrust Division of the Department of Justice make the most of the limited resources available to them for enforcement of antitrust laws. Over the last decade, the urgency of optimizing use of scarce resources has grown along with greater interest in blocking anticompetitive mergers, bringing more and bigger cases to remedy and deter antitrust violations, and improving antitrust doctrines in the courts[1] even as the agencies’ funding remains well below the levels in the 1970s.[2]

Below, I will discuss how the plaintiffs-lawyer experience might translate for these government lawyers.

Thinking Like a Plaintiffs’ Lawyer?

Lawyers who represent plaintiffs in private antitrust cases typically work on a contingent-fee basis — meaning they share the risk that the lawsuits they bring for their clients to recover damages may fail, either at trial or before.[3] Often they also advance the considerable out-of-pocket costs for litigation expenses like expert fees, outlays for travel, and payments to court reporters and jury consultants.

The contingency lawyers’ exposure to potential loss has a disciplining influence. Over years of practice, it instills habits of mind. Because the outcomes of cases determine whether they get paid or not, they learn to evaluate the odds of success, to do only those things that matter to the outcome, and to focus on finding the best way to persuade the judge or jury to change the status quo in their clients’ favor.

A profit-maximizing law firm working on a contingent-fee basis cares a lot about the cost of achieving favorable results. Cost, in this context, means the expense of lawyer time plus payments to experts and other outside vendors. Speed and efficiency in pushing cases to favorable resolutions tend to lower the firm’s cost and enhance returns on the firm’s investment.

Contingent-Fee Lawyers’ Approaches

Now we come to approaches Steve developed over the years for embracing risk while achieving optimal results.

Choose Carefully

Good plaintiffs lawyers know that the most valuable investment they make is the time and money they spend evaluating potential engagements they reject. Government lawyers who do not already have this mindset may find it useful in resisting the good-money-after-bad effects of what our economist friends call sunk costs.[4] Nothing hurts a plaintiff-side practice more than accepting loser cases — especially ones that have a voracious appetite for resources, as almost all antitrust lawsuits do. You will need to say no to many more cases than you accept.

Involve Everyone

Evaluating cases week in and week out makes a lawyer much better at coming to the right decisions about them. Reading case evaluations, hearing senior lawyers discuss strengths and weaknesses of potential cases, asking questions, and then voting attune you to the things that matter, lower the risk of error, and give everyone at least a cheering interest in the outcome of every case.

Require Rigorous Proposals

The lawyers who sponsor a case must explain why the firm should invest in it, first in writing and again orally at a weekly firm meeting. They must provide a road map that starts with the players and ends with victory at trial. Their analysis recites the facts, analyzes the facts under the relevant law, estimates costs, quantifies damages, describes staffing, identifies the tribunal, and projects the premium the firm will receive if the case prevails at trial.

The premium often should equal at least three times the likely investment and, in any case, must compensate for the risk of an unsuccessful outcome. A similar case-sponsoring and vetting process might be useful to government lawyers in making their go or no-go decisions on bringing antitrust cases.

Define Victory

Plaintiffs lawyers must quantify what they and their clients will receive should they win. That allows them to define what victory will look like. It also permits them to assess the resources (mainly lawyer time and expense money) that they should plan to invest in striving to achieve a successful outcome.

Spending $2 million to win a $1 million award makes no sense, but risking $2 million on a claim for $10 million might.

An economist presumably could make an analogous forecast of benefits from a potential enforcement action’s happy outcome — the granting of an injunction blocking an anti-competitive merger, say — to provide a data point in choosing among possible enforcement actions to bring.

Focus on Trial From the Start 

Plaintiffs lawyers who work on a contingent-fee basis must determine that the claims have enough legal and factual support to get to trial and that at trial their clients will likely prevail. Plaintiffs lawyers must in addition conclude that the potential upside of a case justifies what they would have to spend to handle the case through final judgment. The case otherwise may be a long expensive slog to defeat. Successful plaintiffs lawyers do not take cases in the hope they will settle quickly, even when that appears likely. They focus on trial.

A similar trial-centric approach may also benefit enforcement actions.

Do What Matters

Spending time on unproductive work at best reduces the profits of plaintiffs lawyers and may mire them in more distractions. That some expense might help to win a case provides insufficient justification for incurring it. Every investment, whether of time or money, should advance the case towards a successful outcome at trial.

Don’t Think Like a Defense Lawyer

Defense lawyers’ clients win by avoiding changes to the status quo. If nothing happens, they declare victory. Preventing a loss, moreover, carries twice as much psychological charge as achieving an equivalent gain does.[5] Nor do defense lawyers have an incentive to limit investment in their clients’ cases. Although losing a case may affect a defense lawyer’s reputation, it will not forfeit their compensation. Thinking like a defense lawyer thus tends towards over-investment and less early and ongoing attention to case-dispositive merits issues.

Tell the Human Story

Plaintiffs lawyers must motivate decision makers to make defendants pay money. Judges and juries seldom disturb the status quo unless they feel it is necessary to correct real injustices to actual people. The same is true in enforcement actions.

A story about a young woman who lost her American dream of owning a small business because a big company favored its own products will beat a claim that accuses an online digital platform of self-preferencing its algorithm.

Right-Size Trial Teams

The default staffing on each case’s trial team should start small — typically one senior lawyer, one junior lawyer, and a paralegal. The actual size should depend on the minimum number necessary to do the work. A docket coordinator who monitors each lawyer’s workload should have discretion to detach members from trial teams that have excess capacity and reallocate them to others in order to make best use of human resources.

Track Investments

Senior lawyers should receive a monthly tally and cumulative total of the value of time and expenses their teams have invested in each matter. The report may classify each case as a probable win, possible win or likely loss depending on a rough sense of the likelihood of achieving the case’s relevant objectives. This sort of tracking will allow team and firm leaders to identify problems and make adjustments to address them.

Conduct Case Reviews

Subject all active cases twice yearly to review by senior lawyers and other members of multiple case review teams. Reviews will identify potential issues and, if appropriate, result in corrective measures. They will also educate younger lawyers about a variety of cases and how to deal with common problems. Each team generates a list of things to do and reports the results of the review to leadership.

Require Accountability

The leader of each trial team assigns tasks to individuals–not to groups of individuals–and sets explicit deadlines for completion of the tasks. One person thus is accountable for timely performance of each task, whether they do the work themselves or rely on others to assist.

Develop a Deep Bench

Train every junior lawyer to become a first-chair trial lawyer. Give them important speaking roles in trials. Nothing motivates up-and-coming lawyers so well or strengthens the capabilities of the lawyers so much.


Reinvigorating antitrust enforcement requires tolerance for litigation risk and skill in managing it. The practices, orientation, and instincts of contingent-fee lawyers offer approaches the FTC and Antitrust Division might profitably consider.

Would some or all of the approaches really help? Let me know what you think by email (  I’ll especially appreciate input from individuals who’ve worked at the FTC or Antitrust Division. If I get a critical mass of commentary, I’ll include it–without attribution to individuals who provided comments–in a follow-up post.


[1] The Spring 2022 issue of Antitrust highlights the push for more assertive enforcement across multiple domains. Articles include “What Next for the Horizontal Merger Guidelines?” by Nancy L. Rose and Carl Shapiro and “Antitrust Reform: A Litigation Perspective” by Jonathan Sallet.

[2] From 1978 through 2021, gross domestic product rose 977.95 percent (or 9.7795 times). Multiplying the appropriations for the FTC and Antitrust Division in 1979 and 1978, respectively, by 9.7795 yields almost $1 billion—$635,667,500 to the FTC and $316,572,194 to the Antitrust Division. That represents a 42 percent increase over the stretch appropriation levels in the pending America COMPETES Act of 2022 and a 31 percent jump from the $490,000,000 and $272,524,000 the Biden administration has proposed for the FTC and Antitrust Division, respectively, in fiscal year 2023.

[3] For discussion of contingent-fee arrangements generally, including “negative” or “reverse” ones for reducing or defeating adverse claims, see Barry Barnett, Fee Arrangements, Ch. 77 in Business and Commercial Litigation in Federal Courts (5th 2022).

[4] See Wikipedia, “Sunk cost” (available at

[5] As the Nobel prize-winning behavioral economist Daniel Kahneman noted in Thinking, Fast and Slow (2011), “people are loss averse” and on average would reject a gamble in which they stood to gain $150 or lose $100. Experiments estimating the “loss aversion ratio” put it usually “in the range of 1.5 to 2.5.”

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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.