Legal Writing

Author: Jarod Bona

Great lawyers must write well. But what does that mean? I could give you a list of what you should or shouldn’t do as a legal writer. I think that you might find such an article useful regardless of your skill level because the best writers always strive to improve and the worst writers, well, they need a lot of guidance.

I might write that article one day. But not today. I thought we’d try to go a little deeper than that today.

If you want technical advice, it isn’t hard to find. I highly recommend Bryan Garner’s seminars. I’ve attended many over the years and they are inspirational. And I mean that; I’m not just trying to sound overly cool by telling you how writing seminars inspire me. But he is a great writer turned great speaker who really cares about the written word and you leave the course thinking not only about your writing, but about bettering your writing. You can check out his many books here.

//ws-na.amazon-adsystem.com/widgets/q?_encoding=UTF8&ASIN=0199378355&Format=_SL250_&ID=AsinImage&MarketPlace=US&ServiceVersion=20070822&WS=1&tag=antitrustattorney-20&language=en_UShttps://ir-na.amazon-adsystem.com/e/ir?t=antitrustattorney-20&language=en_US&l=li3&o=1&a=0199378355

I also recommend Ross Guberman and Legal Writing Pro. I attended his seminar as a young(er) attorney and appreciated how he utilized great legal writers as exemplars of how to write briefs. You might also enjoy his blog on legal writing.

If you are interested in the excruciating details of how to write an appellate or antitrust brief, you might enjoy this article.

I was lucky to have clerked in Minneapolis for Judge James B. Loken of the Federal Court of Appeals for the Eighth Circuit. Early in our clerkship, he explained to us that he is a professional writer. At first I was surprised to hear that because I thought of novelists, journalists and others as professional writers, but not judges. But he was write; I mean right.

The appellate judge communicates through writing. Indeed, every official act is a written one. To act effectively, the judge must write well. Clarity, persuasiveness, organization, and plain old storytelling must find their way into the judge’s opinions.

Lawyers have the same responsibility. We are professional writers. My legal career has included both an appellate practice and a writing-heavy litigation and antitrust focus. That is, in my early career in the big cases, I typically found myself in the writing roles, which is not an accident. So I have spent a lot of time pondering the theoretics of legal writing (or at least what makes it good or bad).

Continue reading →

Visa-Mastercard-Antitrust-Litigation-300x169

Author: Jarod Bona

Even if you aren’t an antitrust lawyer, you have certainly seen notices of class actions, perhaps with a solicitation from an attorney stating in legalese that you may be entitled to money or something to that effect. You probably ignored them—and for good reason—perhaps the amount you could receive was small, or the subject didn’t really have anything to do with you or your business or you just didn’t want to suffer through the poor lawyer-drafted prose.

Did it surprise you to learn that while you were just minding your own business you were apparently a part of what looks like pretty major litigation?

In this article, I’ll offer some background about how antitrust class action settlements work and do it by describing a big one: In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation. This is the antitrust litigation against Visa, MasterCard, and their member banks.

As of early May 2019, this case is between second settlement (more about that below) and final approval. The settlement amount will range from $5.54 billion to $6.24 billion. The class members are merchants that have accepted Visa and/or MasterCard between January 1, 2004 and January 25, 2019.

Is that you or your company?

But before we begin, a disclaimer: Bona Law doesn’t typically represent classes in antitrust class action cases. We do represent defendants. But there is one exception: We will represent members of an existing class or opt-out plaintiff members, typically businesses. This, of course, follows our practice—which is common among large international firms as well, to represent both plaintiff and defendant companies in antitrust litigation (but not plaintiff-side classes).

If you are a defendant facing a class action, you might want to read our articles on an antitrust blizzard and defending an antitrust MDL.

Here is the disclaimer: In the Interchange Fee litigation, Bona Law (along with Cahen Law P.A.) represents multiple merchant members of the class that are seeking relief from either the existing settlement (if approved) or as an opt-out.

And here is a good life lesson: Whenever someone has an interest (including attorneys representing clients with an interest), consider their bias, which may be unintentional but present. So assume that we are biased here in favor of the merchants that are seeking relief from the evil antitrust violations.

With that out of the way, let’s jump into the substance.

How Do Class Action Settlements Work?

I won’t go too deeply into the basics of class actions or how class certification works. We’ve written about it elsewhere. You can read our blog post about defending against class certification here. You can read about the requirements of class certification here. And if you want to appeal a class certification decision, read this article.

Here is the gist of class actions: There are some cases in which many people are damaged only a little bit—maybe even just a few dollars. It doesn’t make sense for those people to hire an attorney and file a lawsuit to recover a few dollars. So—absent another method of relief—there won’t be lawsuits if a legal violation results in widespread but minimal harm to each. Some people may say “good” to that. But our legal system has adopted a private-attorney general model in antitrust and elsewhere that places some of the enforcement of law in the hands of private individuals and companies that have been harmed, and their attorneys.

If you want to learn more about the private attorney general model, you can read a law review article that I wrote many years ago with Carl Hittinger.

Even if each individual has sufficient incentive to file a lawsuit (i.e. enough money is at stake), the law has determined that there may be overall efficiencies for the individuals to handle their claims as part of a class if, for example, the common issues in the case predominate over any individual issues.

The class action approach, codified under federal law into Federal Rules of Civil Procedure, Rule 23, allows courts to hear and decide actions on behalf of an entire class of people that have been injured. Class actions, not surprisingly, happen a lot in antitrust, especially when plaintiffs allege that price-fixing, bid rigging, or market allocation, for example, led to an overcharge of some minimal amount, resulting in widespread, but often minimal individual damages.

There is a certification requirement, but other than that much of the litigation is just like any other case, except settlement.

If you want to settle with a class, it is a big to-do. That is because the class action can, in fact, eliminate the right to seek relief by people that may have no idea about the litigation. In addition, the attorneys that brought the action on behalf of the class typically receive their fees (which are usually contingency) out of the settlement proceeds (or judgment proceeds if the case gets that far).

So, to deal with all of these issues, a class-action settlement requires a preliminary approval by the court, a notice to the class, an opportunity for class members to opt-out or challenge the settlement, and, eventually, a final approval. And the court’s final approval is subject to appeal by class members that may disagree with the settlement. Then, if the settlement survives all of that, there is a process for paying the class members from the settlement funds through a claims administrator.

The paragraph above listed a lot of steps, each with its own nuances and details. So please just take that as the “gist” of it.

It will be easier to understand with a concrete example.

In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation

If we are going to talk about a particular class-action settlement, I can’t think of a better current one to discuss than the In re Payment Card Interchange and Merchant Discount Antitrust Litigation, which some people just call the “Visa-MasterCard case.” The settlement is valued at between $5.54 billion and $6.24 billion. That’s a lot of money, even for a big antitrust case.

Continue reading →

by

antitrust-litigation-and-data-analytics-300x200
Author: Rachel Bailey, Legal Data Expert, Lex Machina

Data analytics is big business right now. Many types of businesses are using analytics to become more competitive and efficient. It’s no longer just “Moneyball” in sports, but styling analytics in retail, adaptive learning analytics in education and – you guessed it – litigation analytics in the legal sector.

While there are a variety of analytics purveyors in the legal space, one vendor recently released a report specifically on antitrust litigation. Lex Machina, a LexisNexis company, crawls PACER data and cleans and structures it to help users gain insights – and strategic advantage – in federal antitrust litigation.

American Needle (Football)

Author: Jarod Bona

When you think about Sherman Act Section 1 antitrust cases (the ones involving conspiracies), you usually consider the question—often framed at the motion to dismiss stage as a Twombly inquiry—whether the defendants actually engaged in an antitrust conspiracy.

But, sometimes, the question is whether the defendants are actually capable of conspiring together.

That isn’t a commentary on the intelligence or skills of any particular defendants, but a serious antitrust issue that can—in some instances—create complexity.

So far I’ve been somewhat opaque, so let me illustrate. Let’s say you want to sue a corporation under the antitrust laws, but can’t find another entity they’ve conspired with so you can invoke Section 1 of the Sherman Act (which requires a conspiracy or agreement). How about this: You allege that the corporation conspired with its President, Vice-President, and Treasurer to violate the antitrust laws. Can you do that?

Probably not. In the typical case, a corporation is not legally capable of conspiring with its own officers. The group is considered, for purposes of the antitrust laws, as a “single economic entity,” which is incapable of conspiring with itself. Of course, the situation is complicated if we aren’t talking about the typical corporate officers, but instead analyzing a case with a corporation and corporate agents (or perhaps in a rare case, even employees) that are acting for their own self-interest and not as a true agent of the corporation. The question, often a complex one, will usually come down to whether there is sufficient separation of economic interests that the law can justify treating them as separate actors.

A lot of tricky issues can arise when dealing with companies and their subsidiaries as well. In Copperweld Corp. v. Independence Tube Corporation, for example, the United States Supreme Court held that the coordinated activities of a parent and its wholly-owned subsidiary are a single enterprise (incapable of conspiring) for purposes of Section 1 of the Sherman Act.

Continue reading →

ICN-Due-Process-Antitrust-Competition-Laws-300x176

Author: Luis Blanquez

The U.S. Department of Justice recently published that the International Competition Network (“ICN”) has approved the Framework on Competition Agency Procedures (“CAP”), for antitrust enforcement agencies around the world to promote fundamental due process principles in competition law investigations and enforcement. This is an opt-in framework, based on the U.S. Antitrust Division’s initial Multilateral Framework on Procedures proposed at the last Council of Foreign Relations in June 2018. On May 1, 2019, the CAP will be open for signature to all competition agencies around the world, including ICN member and non-member agencies. It will come into effect on May 15, 2019, at the up-coming 2019 ICN annual conference in Cartagena, Colombia.

You can read our earlier article about the general ICN guiding principles for procedural fairness previously developed to build up the CAP.

For those of you that may be unfamiliar with the International Competition Network, it is a group that allows antitrust and competition officials from around the world to coordinate and share best practices (which is somewhat ironic). They hold conferences and produce a substantial amount of substantive material that is quite good. Non-governmental members can also participate. Indeed, several years ago, Jarod Bona co-authored a chapter about exclusive dealing for the Unilateral Conduct Workbook.

Competition Agency Procedures Participation

Participants in the CAP will include all competition agencies entrusted with the enforcement of competition laws, whether or not they are ICN members. Participants will join the CAP by submitting a registration form to the co-chairs.

Agencies entrusted with the enforcement of competition laws around the world that do not meet the definition of participant will also be able to participate in the CAP by submitting a special side letter declaring adherence to the principles and participation in the cooperation and review processes. An important question is whether China will participate.

The CAP will be co-chaired by three participants (“Co-chairs”) confirmed by consensus of the participants for three-year terms.

Principles on Due Process and Procedural Fairness

The CAP outlines a list of fundamental principles on due process in antitrust enforcement procedures.

First, with regard to non-discrimination, each participant will ensure that its investigations and enforcement policies afford persons of another jurisdiction treatment no less favorable than persons of its jurisdiction in like circumstances.

Transparency and predictability are also part of the fundamental principles, making sure all competition laws and regulations applicable to investigations and enforcement proceedings are publicly available. Each participant is also encouraged to have publicly available guidance, clarifying or explaining its investigations and enforcement proceedings.

During the investigative process, participants will also: (i) provide proper notice to any person subject to an investigation, including the legal basis and conduct for such investigation, (ii) provide reasonable opportunities for meaningful and timely engagement, and (iii) focus any investigative requests on information they deem relevant to the competition issues under review as part of the investigation.

Other principles outlined in the CAP are as follows: timely resolution of proceedings–taking into account the nature and complexity of the case; confidentiality protections; avoidance of conflict of interests; opportunity for an adequate defense, including the opportunity to be heard and to present, respond to, and challenge evidence; representation by legal counsel and privilege; written enforcement decisions including the findings of fact and conclusions of law on which they are based, together with any remedies or sanctions; and the availability for independent review of enforcement decisions by an adjudicative body (court, tribunal or appellate body).

Continue reading →

oscars-and-antitrust-300x228
Author: Aaron Gott

My morning routine usually begins with reading the news to keep up on current events. As an antitrust lawyer, I often find myself thinking about how stories that were deemed newsworthy for other reasons fail to recognize their often most troubling aspects: the antitrust concerns.

Last week, for example, the news was abuzz with Uber and Lyft drivers going “on strike” to protest their compensation from the companies. The drivers “banded together” in an effort to pressure the companies. Most might see this as a sort of unionization of the gig economy. But I saw it as an antitrust problem: ride referral drivers are independent contractors, so they are not, under well-established federal law, entitled to the union labor exemption from the antitrust laws. They are horizontal competitors who are agreeing to restrain trade. That sort of conduct is called a group boycott, and under these circumstances, it might be per se illegal under Section 1 of the Sherman Act.

Bona-Law-Logo
Author: Jarod Bona

Our boutique antitrust law firm has a lot of work right now and we expect this to continue and even increase. You may have seen the announcement about our new antitrust (monopolization) and Lanham Act lawsuit in Colorado federal court. And that is just one of many cases, matters, and projects we have on our plate right now.

Fortunately, we have a strong team that can handle our workload; and we can easily expand quickly to add temporary team members with big-firm credentials as needed (which we have done). We also work with various third-party providers to assist with document review and other litigation-related tasks so we can fully leverage our attorney time.

Duke-University-300x200

Author: Jarod Bona

It is illegal under the antitrust laws for competitors to agree not to steal each others’ employees. For more about that, you can read our article about how the antitrust laws encourage stealing. Yes, you read that correctly.

But this article isn’t about stealing or even agreeing not to steal employees. Instead, it is about one of our favorite topics: Suing the government under the antitrust laws and the increasingly narrow state-action immunity from antitrust liability.

The FTC and DOJ Antitrust Division can affect antitrust policy beyond just the cases that involve those agencies. They will often file amicus briefs, or in this case, a Statement of Interest of the United States of America. You can read here about how these type of filings have resulted in the FTC seeming like a libertarian government agency.

In Danielle Seaman v. Duke University, a class action alleging that Duke and the University of North Carolina had a no-poaching agreement in violation of the Sherman Antitrust Act, the Department of Justice filed a Statement of Interest on March 7, 2019.

One of Duke’s arguments in defense of the lawsuit is that it is exempt from antitrust liability because it is a state entity. This is called state-action immunity. We write about this doctrine constantly at The Antitrust Attorney Blog.

Anyway, Duke argued that it is Ipso facto exempt from the antitrust laws because it is a “sovereign representative of the state” that is automatically exempt under the Parker doctrine (which is essentially the state-action immunity doctrine). Notably, this argument is flawed already, as the doctrine really only supports automatic exemption for the state acting directly as sovereign, which is typically limited to the state acting in its legislative capacity, or its Supreme Court acting as a legislator (which sometimes happens).

But the Department of Justice, in addition, argued that state-action immunity—or at least Ipso facto immunity—does not apply because Duke University is acting as a market participant, not as a regulator. The DOJ supported this argument with some familiar case law, including the landmark NC Dental case.

It seems that the DOJ market-participant argument is limited here to the point that Duke cannot be automatically exempt from antitrust liability because it is a market participant rather than a regulator, for purposes of the anticompetitive conduct.

But the same reasoning that DOJ makes and the same cases that DOJ cites support a broader market-participant exception to state-action immunity overall. This is an issue that the US Supreme Court expressly left open in its Phoebe Putney decision.

It is a short step from the argument that DOJ makes here to a straightforward market-participant exception to state-action immunity.

Continue reading →

Federal-Courthouse-300x169

Author: Aaron Gott

If you are a defendant in a federal class action case, you probably already know that class certification is an important pivot point in the litigation: once the class is certified, it could be a bet-the-company moment where the risk of a large judgment outweighs any considerations about the merits or your likelihood of successfully defending at trial. The fact that you could appeal class certification after final judgment is cold comfort.

Fortunately, there is good news: the Federal Rules of Civil Procedure allow immediate appeals of class certification orders. But there is also bad news: the courts of appeals have unfettered discretion whether to hear the appeal—you must persuade the court why it should consider the case immediately rather than after final judgment, as it usually does. Here are ten things you should know about immediate appeals of class certification orders under Rule 23(f) if you are a party or counsel involved in a class action in federal district court.

  1. You don’t have much time.

You only have 14 days from the date of the certification order to file a petition for immediate appeal. Fed. R. Civ. P. 23(f). The 14-day time limit is considered jurisdictional. So there are no extensions: you must either file your petition within 14 days or not file it at all. In fact, the U.S. Supreme Court in Nutraceutical v. Lambert just held that the 14-day deadline cannot be tolled.

That is 14 days from the order. No extra time for mailing (to the extent you still do that). No extra time for that Memorial Day Weekend, Fourth of July holiday, or Thanksgiving week smack dab in the middle of that 14 days.

14 days is not a lot of time to prepare a brief to convince an appellate court to exercise its “unfettered discretion” to hear your appeal.

In practice, it is best to assume that the trial court’s decision won’t be favorable to you and to begin working up your arguments for the petition well in advance of the court’s decision. After all, it often takes months (or years) for the trial court to issue one. Defendants in most class actions—particularly antitrust class actions like those we focus on at Bona Law—face ruinous joint and several liability that means most defendants prefer not to risk trial regardless of the risk of liability on the merits. It is worth having the insurance of a head start on a 23(f) petition long before the 14-day timer starts ticking.

You should also consider hiring appellate counsel for purposes of the appeal (more on this below).

  1. 23(f) appeals are discretionary and rarely granted.

The U.S. Supreme Court held, back in 1978, that orders denying class certification are not final decisions within the meaning of federal law, and thus are not appealable as a matter of right. After changes from Congress and the Federal Rules of Civil Procedure, Rule 23(f) was created. Nevertheless, a 23(f) appeal is permissive and, in fact, the committee notes state that the courts of appeals have “unfettered discretion” in deciding whether to permit an appeal of a class certification order or denial.

Thus, a 23(f) petition is a lot like a petition for certiorari to the U.S. Supreme Court. Luckily, a 23(f) petition is much more likely to be granted (by some accounts and depending on the circuit, around 25%).

See below for guidelines on how to convince a court of appeals to take up your 23(f) appeal.

  1. The rules on the form and contents of filing are different than merits appeals

Rule 23(f) petitions vary from typical opening briefs in several respects. First, although you must necessarily make merits arguments, your arguments should focus on the reasons why the court should grant the petition and set a schedule for briefing on the merits of the order.

Second, the petition has some specific requirements. You must include the questions presented, the relevant facts, the relief sought, the rule that authorizes the appeal and the reasons why the court should grant it, and a copy of the order. You only get 20 pages to succinctly state complex facts and make complex legal arguments to convince three judges why they should volunteer to do extra work on top of their already crowded mandatory docket. Use those pages wisely.

Third, while an opposing party may file an answer or cross-petition, you do not automatically have the right to file a reply brief. You can, of course, seek leave to file a sur-reply, but these efforts to get the last word in can sometimes turn the court off—only do it if it’s necessary to address something new raised by the other side.

Fourth, check the local rules. They might include additional requirements or restrictions relating to 23(f) petitions.

  1. You must convince the court twice over

First, you must convince the court why it should exercise its “unfettered discretion” to take up your appeal.

Then, you often must also convince the court why it should reverse the district court’s order.

Sometimes courts make both decisions in one stroke. If sufficient evidence of error appears on its face, a court of appeals could summarily reverse or affirm the order. See, e.g., CE Design Ltd. v. King Arch. Metals, Inc., 637 F.3d 721 (7th Cir. 2011). Other times, the court will grant the petition and order briefing on the merits.

What this means in practice is that your petition should be compelling in both respects—why the court should grant it and why it should reverse. Luckily, as you will see below, you will have a good shot because, as explained below, one of the most common reasons for granting a petition is that the trial court’s order is “manifestly erroneous.”

  1. There are several reasons why the court might grant a petition

As explained above, courts of appeals have “unfettered discretion” in deciding whether to grant a petition for review. In practice, however, most courts have set forth a test or series of factors for cases warranting review. Each circuit has developed such a standard or test, with the exception of the Eight Circuit, which declined to do so.

In the Ninth Circuit, for example, there are three situations warranting review of a class certification order under Rule 23(f):

Continue reading →

Law Library Books

Author: Jarod Bona

Law school exams are all about issue spotting. Sure, after you spot the issue, you must describe the elements and apply them correctly. But the important skill is, in fact, issue spotting. In the real world, you can look up a claim’s elements; in fact, you should do that anyway because the law can change (see Leegin and resale price maintenance).

And outside of a law-school hypothetical, it typically isn’t difficult to apply the law to the facts. Of course, what I like about antitrust is that the law evolves and is often unclear and applying it (whatever it is) challenges your thinking. Sometimes, you even need to ask your favorite economist for some help.

Anyway, if you aren’t an antitrust lawyer, it probably doesn’t make sense for you to advance deep into the learning curve so you are an expert in antitrust and competition doctrine. It might be fun, but it is a big commitment to get to where you would need to be, so you should consider devoting your extra time instead to something like CrossFit.

But you should learn enough about antitrust so you can spot the issues. This is important because you don’t want your company to violate the antitrust laws, which could lead to jail time, huge damage awards, and major costs and distractions. And as antitrust lawyers, we often counsel from this defensive position.

It is fun, however, to play antitrust from the offensive side of the ball. That is, utilize the antitrust laws to help your business. To do that, you need a rudimentary understanding of antitrust issues, so you know when to call us. Bona Law represents both plaintiffs and defendants in antitrust litigation of all sorts.

Continue reading →