Archives: Antitrust

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LIBOR Over-the-Counter Plaintiffs Win Class Certification of Price-Fixing Claims Against Banks

By Barry Barnett on Posted in Antitrust, Class Actions
Today, United States District Judge Naomi Reice Buchwald in Manhattan issued LIBOR VII, in which the court granted class certification under Rule 23(b)(3) to a class of plaintiffs who bought over-the-counter instruments that paid interest in terms of the London Interbank Offered Rate (LIBOR) and who allege that LIBOR-setting banks conspired to suppress LIBOR during the … Continue Reading

Pharma Buyers Too Few for Class

By Barry Barnett on Posted in Antitrust, Class Actions
U.S. District Judge Mitchell S. Goldberg ruled on August 28, 2017 that a class of 24 to 25 direct purchasers did not satisfy the “numerosity” requirement of Rule 23(a)(1) for class certification. Florence Drug Co. of Florence, Inc. v. Cephalon, Inc., No. 06-c-1797, ECF 1072 (E.D. Pa. Aug. 28, 2017), on remand from In re Modafanil Antitrust Litig., 837 … Continue Reading

Dieselgate — Antitrust Edition

By Barry Barnett on Posted in Antitrust, Class Actions
You will recall that two years ago Volkswagen got in $14.7 billion worth of class action trouble for rigging software in its diesel cars to fake compliance with U.S. emission standards. The We now learn that Volkswagen didn’t act alone.… Continue Reading

A Trial Lawyer for the Supreme Court?

By Barry Barnett on Posted in Antitrust, Class Actions, Commercial, Corporate, and Contracts, Intellectual Property, Procedure, Securities
In the last quarter-century and more, no current member of the Supreme Court tried a lawsuit of any kind to a judge or jury. Almost none of the justices has ever tried a civil case to verdict. And before their honors became appellate judges, only one of their number served as a full-time trial judge. Does … Continue Reading

No Class?

By Barry Barnett on Posted in Antitrust, Class Actions
A question of numbers Class actions can save courts and parties a lot of time and money. But what if the class includes just a few members? How much time and money will the class action device save then? The Third Circuit grappled with that “numerosity” question in In re Modafinil Antitrust Litig., 837 F.3d … Continue Reading

Three Reasons Class Actions Will Rebound, Part 2

By Barry Barnett on Posted in Antitrust, Class Actions
We left off last Monday in the middle of something — the Seventh Circuit’s latest proof of its leadership in the law of class actions. My talk of the Seventh Circuit surge followed a segment on The outsize influence of Justice Scalia. Now let’s finish up with the surge before turning to the third and final reason … Continue Reading

Three Reasons Class Actions Will Rebound

By Barry Barnett on Posted in Antitrust, Class Actions
Have class actions — after a steady decline under the Roberts Court — begun a come-back? I believe they have. And I offer here, and in the next post, three reasons they will continue to rebound. The outsize influence of Justice Scalia Justice Antonin Scalia disliked class actions. He advocated putting a spotlight on class … Continue Reading

Lessons from an Epic Case — Trust

By Barry Barnett on Posted in Antitrust, Class Actions, Commercial, Corporate, and Contracts, Procedure
12+ years In its more than 12 years of life, the case of Comcast Corp. v. Behrend has offered dozens of chances for the lawyers to persuade — or not. Although class counsel suffered a tough 5-4 defeat in the U.S. Supreme Court, we convinced judges often enough to eke out $35 million in cash, bill credits, and services for … Continue Reading

Lessons from an Epic Case — Bring Your Checkbook

By Barry Barnett on Posted in Antitrust, Class Actions, Commercial, Corporate, and Contracts
Bring your checkbook Today resumes the series on take-aways from the epic case of Comcast Corp. v. Behrend — an antitrust class action that began more than a dozen years ago, produced dozens of opinions, and survived a loss in the U.S. Supreme Court before ending in a $50 million settlement, the benefits of which class … Continue Reading

Lessons from an Epic Case — The Need for Speed

By Barry Barnett on Posted in Antitrust, Class Actions, Procedure
On December 8, 2003, the antitrust class action that lawyers know as Comcast Corp. v. Behrend started a 12-year odyssey through the federal courts. On December 15, 2015, the settlement that will end Behrend became final. Today begins a five-part series on lessons that Behrend taught. This post will focus on a need that all plaintiffs share: … Continue Reading

The Future of Per Se Antitrust Liability

By Barry Barnett on Posted in Antitrust
Leegin as wrecking ball? Since the Supreme Court struck down an almost century-old rule of per se antitrust liability in Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877 (2007),* defense lawyers have tried to turn a single sentence from Leegin into a per-se category killer. The effort presents high stakes, principally because per … Continue Reading

The Next Death Threat to Class Actions

By Barry Barnett on Posted in Antitrust, Class Actions
Class action skeptics Since 2011, a 5-4 majority of the Supreme Court has made class actions harder to bring and tougher to sustain. In the current term, the Court’s quintet of class action skeptics — Chief Justice Roberts and Justices Alito, Kennedy, Scalia, and Thomas — may use a pair of cases in which it has … Continue Reading

The Cost of Funding Litigation Expenses

By Barry Barnett on Posted in Antitrust, Class Actions, Commercial, Corporate, and Contracts, Energy, Intellectual Property, Securities
Big dollars in business cases Expenses in big-dollar lawsuits can run into the millions of dollars. An antitrust class action that I’ve handled since 2003, for instance, cost more than $8 million. The law firms representing the class fronted all that money, with no assurance we would ever get any of it back. Why would … Continue Reading

The Cost of Third-Party Litigation Funding

By Barry Barnett on Posted in Antitrust, Commercial, Corporate, and Contracts, Energy, Fees, Intellectual Property, Securities
Sizable expenses A big commercial case can cost millions in expenses — by which I mean out-of-pocket costs that the plaintiff or its counsel must pay net of attorneys’ fees. A portfolio of cases — for infringement of a patent or family of patents, say — can run many millions more. Who will bear that … Continue Reading

Fear of False Positives Distorts Antitrust

By Barry Barnett on Posted in Antitrust
The cost of errors in antitrust Jonathan Baker earned a J.D. from Harvard and a Ph.D. (in Economics) from Stanford, served as Chief Economist at the Federal Communications Commission, and now teaches antitrust and economic regulation at American University’s Washington College of Law. He’s also written an important article on how an obsession with avoiding … Continue Reading

Amex Merchants Catch a Big Break

By Barry Barnett on Posted in Antitrust, Class Actions
Merchants get a new chance to assert claims Finding “egregious” misconduct by the lead lawyer for a class of American Express merchants, a New York district court rejected a request for final approval of a nationwide antitrust settlement. The good news? American Express merchants that have not yet sought individual relief likely may do so … Continue Reading

ATM Class Wins Antitrust Reprieve

By Barry Barnett on Posted in Antitrust, Class Actions, Uncategorized
Economic theory The D.C. Circuit confirmed in Osborn v. Visa Inc., No. 14-7004 (D.C. Cir. Aug. 4, 2015), that plaintiffs alleging a price-fixing conspiracy may rely on debatable economic theory to plead an adequate basis for antitrust injury. The case involved claims that Visa, MasterCard, and several banks conspired to force ATM operators not to … Continue Reading

Antitrust Lessons for Patent Cases

By Barry Barnett on Posted in Antitrust, Intellectual Property
A golden age of civil antitrust, from the 1960s into the 1980s, enriched the victims of cartels and monopolies but upset corporate America.  The high cost of paying treble damages claims eventually provoked a spare-no-expense approach to defense. That in turn influenced the way plaintiffs prosecuted their Sherman Act claims. Much the same thing has … Continue Reading

Patent as the New Antitrust

By Barry Barnett on Posted in Antitrust, Intellectual Property
Antitrust v. patent The extraordinary risk in antitrust cases has prompted courts to erect ever-higher hurdles to them. Extending a trend that began decades before, the Supreme Court used a sprawling antitrust case — Bell Atl. Corp. v. Twombly (2007) — to toughen the test for pleading a claim. It warned about the high costs of “false positives” and … Continue Reading
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