We round up the most significant appellate decisions relevant to commercial litigation each week.

Commercial Roundup offers a double feature this week–two weeks in one.

We lead off with a memory (“The biggest surprise?”), proceed through a slew of IP rulings, pause on my colleagues’ big win against Fox News (“All it took”), note the Supreme Court has cleared the way for constitutional attacks on the SEC and FTC (“How about now?”) and the Fifth Circuit almost immediately expedited one such attack (“Fifth Circuit looks anxious”), and highlight rulings on choice of law clauses and class certification before ending on a high note (“Need a lift”).

Have a terrific rest of the week.

Continue Reading Commercial Roundup – April 27, 2023

We round up the most significant appellate decisions relevant to commercial litigation each week.

This week’s Commercial Roundup follows three days of all antitrust, all the time at the ABA Antitrust Law Section’s annual Spring Meeting in our nation’s capital. More than 3,700 government enforcers, private lawyers, judges, economists, econometricians, academics, students, and others assembled to talk about the recent past and future of antitrust in the U.S. and around the world.

The Roundup includes but one post about the Spring Meeting—BIG meets ABA—but it will give you a good sense of the combat that flickered into view amid the nerdy bonhomie. You can find other posts on the Spring Meeting here, here, and here.

Now, let’s get to the Roundup!

Continue Reading Commercial Roundup – April 5, 2023

Enforcers Roundtable

Like 3,700 or so other folks, I spent a few days last week at a world-class nerdfest—the Spring Meeting of the Antitrust Law Section. You can see my notes from a couple of the half-dozen sessions I attended here and here. You can also see the insights of Matt Stoller, Director of Research at the American Economic Liberties Project and publisher of BIG on Substack, on his experience as a panelist here.

The four days in D.C. again reminded me of the strongly pro-defense orientation of Section members. Many of them spend their days pushing mergers through the Hart-Scott-Rodino Antitrust Improvements Act process. Many others litigate civil and criminal lawsuits charging their clients with price-fixing, abuse of market power, and other violations of antitrust law.

No wonder they believe Robert Bork—the patron saint of trusting in the beneficence of behemoths—hung the antitrust moon.

Continue Reading Antitrust Enforcers Must Do More with Less

This week the ABA Antitrust Law Section’ holds its Spring Meeting. The program offers dozens of sessions, each of which features debate by a panel of experts from government, academia, or private firms on a topic of current interest.

This post reflects my notes from a talk about how well the administration of President Biden has done in making its high hopes for reviving antitrust enforcement, both in the two agencies that have enforcement as a primary mandate—the Antitrust Division in the U.S. Department of Justice and the Bureau of Competition in the Federal Trade Commission—and in other parts of the executive branch.

Continue Reading Notes on “All Bark, No Bite? Antitrust Under Biden.”

We round up the most significant appellate decisions relevant to commercial litigation each week.

Welcome to the spring break edition of Commercial Roundup. This week’s highlights include a fantastic round-robin interview of six women lawyers who’ve made their way to the top of antitrust-world and the end of a saga about a non-lawyer who helped mass-tort firms “sign up clients” for money.

This week you’ll find me at the Spring Meeting of the ABA’s Antitrust Law Section in Washington, DC. Send me an email (bbarnett@susmangodfrey.com) if you’ve also come to the this year’s antitrust nerd-fest and either see an especially recondite, funny, or otherwise notable presentation or would like to say hello.

Continue Reading Commercial Roundup – March 29, 2023

We round up the most significant appellate decisions relevant to commercial litigation each week.

Welcome to this week’s Commercial Roundup.

Below you will find headlines and links to appellate decisions and other items of particular interest to business people and lawyers dealing with complex disputes.

If you haven’t already subscribed to The Contingency, I invite you to do it now. Just enter your email address in the box to the right, hit the return button, and click the “Yes, subscribe me to this list” rectangle in the confirmation email you’ll receive.

Now let’s get to the Roundup!


Continue Reading Commercial Roundup–March 23, 2023

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,

imageBring 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 members started receiving last month.

Today’s lesson underscores a harsh reality — and one that critics of class actions tend to forget: Class actions cost class counsel not only their time but also their money, potentially large quantities of it.
Continue Reading Lessons from an Epic Case — Bring Your Checkbook