If you’ve never heard of The International Competition Network, don’t feel too special.  The name sounds more like a cable channel than a gathering of antitrust agencies from more than 80 nations.

Blawgletter saw a press release about the ICN — specifically, its 6th annual conference — and decided to look into it.  The augurs didn’t look promising; we don’t usually think of Russia, which hosted the conference, as a bastion of law enforcement.  But on closer inspection the ICN seems at least semi-serious.  It has working groups on cartels, competition policy implementation, unilateral conduct, and mergers.  It also publishes reports on best practices as well as handbooks and workbooks on different enforcement issues.

We can’t predict whether the ICN will improve enforcement of competition law.  But we do plan to keep an eye on it.

Barry Barnett

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LA Times story here.

Barry Barnett

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Trial lawyer Clarence Darrow (1857-1938) worked as corporation counsel for a big railroad before turning to labor and criminal law.  The early experience may explain his sardonic take on commercial law:

The law does not pretend to punish everything that is dishonest.  That would seriously interfere with business.

Barry Barnett

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You may have seen news reports (example here) about letters that people submitted in support of or against leniency for I. Lewis "Scooter" Libby.  The trial judge announced that he’ll release the letters after redacting them to protect Mr. Libby’s privacy.  He’s scheduled a sentencing hearing on June 5.

Yesterday, lawyers filed a Sentencing Memorandum on Behalf of I. Lewis Libby.  It describes and quotes some of the letters.  For those who don’t want to wait for the letters themselves, you can get a preview of the positive ones here.

Barry Barnett

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Nathan Koppel reports today in the WSJ that Milberg Weiss partners "had a meeting at the U.S. attorney’s office in Los Angeles to discuss terms of a possible deal" and that possible terms "included Milberg’s paying a fine and agreeing to increased oversight of its business practices."  Mr. Koppel also notes that "a settlement deal, if finalized, would allow the firm to remain in business, according to a person familiar with the firm."

The late history of Milberg Weiss reminds Blawgletter of the ancient tale of Icarus.  In 1996, Congress tried to rein in securities fraud class actions by passing, over a veto, the Private Securities Litigation Reform Act.  Milberg Weiss, even then a prolific filer of such cases, capitalized on the PSLRA’s preference for appointing institutional investors as class representatives by getting lots of institutional investors to hire it.  The firm’s share of securities cases soared — contrary, we imagine, to congressional hopes.

Like Icarus, with his waxy wings, Milberg Weiss may have flown too close to the sun.  Will assertive ambition have a different result this time?  We shall see.

Barry Barnett

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Third Circuit Judge Thomas Ambro, Jr., yesterday "urge[d] Congress or the Supreme Court to revisit what Judge Becker called ‘an unjust and increasingly tangled ERISA regime.’"  Eichorn v. AT&T Corp., No. 95-5461 (3d Cir. May 31, 2007) (quoting DiFelice v. Aetna U.S. Healthcare, 346 F.3d 442, 453 (3d Cir. 2003) (Becker, J., concurring)).  Concurring with denial of rehearing en banc, Judge Ambro noted that the Eichorn plaintiffs presented evidence of intentional interference with their pension rights but that Supreme Court interpretations of ERISA both foreclosed money damages under the federal statute and preempted state law remedies.  "It is time for Congress or the Supreme Court to reconsider the interplay between the extent to which make-whole monetary relief is available under 29 U.S.C. § 1132(a)(3) and the preemption of state-law causes of action that could accord that relief."

Barry Barnett

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The Los Angeles Times reports today that Bill Lerach will leave Lerach Coughlin, the law firm he established three years ago after splitting off from Milberg Weiss.  The news follows a WSJ story, by Nathan Koppel and Laurie Cohen, that Milberg Weiss partner David Bershad has opened plea negotiations with prosecutors.  A grand jury indicted Bershad, Milberg Weiss, and Steven Schulman for alleged payment of kickbacks to clients in class action cases.

Barry Barnett

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Say you apply for life insurance.  The insurer tests your blood and urine and finds that you have too much of two chemicals — alkaline phosphatase and creatinine.  The first puts you at higher risk for several diseases, but the second reflects poor kidney function.  The insurer discloses to you the alkaline phosphatase but not the creatinine.  It issues you a policy at a "non-preferred rate due to the high alkaline phosphatase levels".  Your kidney disease continues to progress, and eventually you suffer kidney failure, necessitating a transplant.

Do you have a negligent misrepresentation claim against the insurer for disclosing one problem but not a worse one?  Not according to the Fifth Circuit.  Applying Louisiana law, the court held as a matter of law that "[a] reasonable person would have thought that New York Life did the tests only for its benefit and reported only what it thought actuarially relevant, not medically relevant."  McLachlan v. New York Life Ins. Co., No. 06-30449 (5th Cir. May 30, 2007).

Blawgletter doesn’t share the court’s Olympian view of what a reasonable person would have thought.  That strikes us as a prototypical jury question.  And we can imagine a fair and honest jury finding that Michael J. McLachlan reasonably believed that New York Life’s report of one "actuarially relevant" condition implied the non-existence of another, even more pertinent one.

Barry Barnett

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