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

imageOn 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: the need for speed in getting to a final outcome, whether favorable or not. But it highlights a danger that exists especially in legally complex cases — the risk that the governing law will make reaching a favorable final resolution more costly, time-consuming, and risky. 
Continue Reading Lessons from an Epic Case — The Need for Speed

Boycott SignLeegin 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 se cases have several advantages over their rule-of-reason cousins. The former are simpler, cost millions of dollars less to work up and try, and have greater odds of success with a judge or jury. The per se rule:

  • does not require an economist to opine about the relevant product and geographic markets;
  • obviates the need to prove that the defendants had market (or monopoly) power or that their conduct was anticompetitive;
  • simplifies proof of damages; and
  • precludes defendants from claiming, and presenting evidence, that their agreement enhanced competition.

You would expect a kindly hearing from the Fifth Circuit — a court that, despite President Obama’s six years of judicial appointments, still counts twice as many Republican (10) as Democratic (5)  appointees in active service. But would the court drink the Kool-Aid?

The court answered on November 25. The panel gave a resounding no.

Continue Reading The Future of Per Se Antitrust Liability

CompetitionThe 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 “false positives” in antitrust litigation systematically biases courts against cases unless they involve price-fixing or market division, horizontal mergers resulting in duopoly or monopoly, or a narrow range of exclusionary conduct.
Continue Reading Fear of False Positives Distorts Antitrust

IMG_0195Antitrust 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

State action?

White TeethThe U.S. Supreme Court ruled today that a North Carolina board's ban on cheap teeth-whitening by non-dentists may expose the board's members to a federal antitrust claim despite the board's status as a creature of the state. N. Carolina State Board of Dental Examiners v. FTC, No. 13-534 (U.S. Feb. 25, 2015).

The 6-3 Court stressed that the