Antitrust Litigation: Observations from the Bench, Bar, and Clients 1
Moderator: Hon. James Donato, N.D. Cal. Panelists: Rachel S. Brass, Gibson, Dunn & Crutcher Brendan Glackin, Lieff Cabraser, Heimann & Bernstein David M. Howard, Microsoft Corp. Mai Klassen, Charles Schwab & Co. 2
The World of Antitrust Litigation Size Complexity of law and facts Multiple Defendants Multiple Plaintiff Groups Parallel Proceedings Duration 3
The World of Antitrust Litigation Common Categories of Antitrust Cases: International Cartel Price fixing Bid rigging Dominant Firm Pharma: Pay-for-Delay, Product Hopping, SSO Abuse Group Boycotts 4
Practical Aspects: Duration International Electronic Component Cartel Cases in N.D. Cal. Case Name Case Lifespan DRAM SRAM GPU FLASH TFT-LCD ODD Approx. 5 Year Scale Full Discovery to Motion for Hearing For Complaint to Class Cert. Order Motion for Class Class Cert. to Hearing Class Cert. to Order Full Discovery to Trial Cert. for Class Cert. for Class Cert. 5
Practical Aspects: Duration Other Antitrust MDLs in N.D. Cal. and Elsewhere Case Name Case Lifespan High-Tech * Urethanes TiO2 Norvir Approx. 6 Year Scale *Original motion for class cert. filed 10/1/12 and heard on 1/17/13. Second round of briefing is omitted from the chart. Complaint to Full Discovery Full Discovery to Motion for Class Cert. Motion for Class Cert. to Hearing for Class Cert. Hearing For Class Cert. to Order for Class Cert. Class Cert. Order to Trial 6
Practical Aspects: Duration The parties have different concerns when it comes to the schedule. PLAINTIFFS: Loss of evidence Obtaining the evidence necessary to certify a class DEFENDANTS: Extended business disruption Loss of plaintiff and third-party evidence Obtaining the evidence necessary to defeat class certification and address damages Address concurrent proceedings 7
Leniency Programs and Criminalization Across Jurisdictions Countries with developed or proposed leniency policies 8
Major Foreign Jurisdictions with Civil Antitrust Liability Country Class actions? Country Class actions? Australia France Austria Germany Belgium Greece Brazil Hong Kong Canada Hungary China India Colombia Indonesia Czech Republic Ireland Denmark Israel Finland Italy 9
Major Foreign Jurisdictions with Civil Antitrust Liability (Cont d) Country Japan Class actions? Country Singapore Class actions? Malaysia South Africa Mexico South Korea Netherlands Spain Nigeria Sweden Norway Switzerland Poland Taiwan Portugal Turkey Romania Ukraine Russia U.K. 10
Unusual Aspects of International Cartel Cases Documents are in a foreign language Review, translation, use at deposition and trial Depositions occur in a foreign language Data productions are mammoth and complex Witnesses are located overseas 11
Practical Aspects: Early Motions? Appropriate for mixed issues of law and fact? Foreign Trade Antitrust Improvements Act (FTAIA) Standing (Article III or prudential/agc) Antitrust injury (Illinois Brick and Brunswick) Market power Personal jurisdiction Legal Standard: Rule of Reason versus Per Se Keeping Motions Practice Under Control Pre-motion letters and conferences (SDNY Procedures) 12
Practical Aspects: Scheduling Developing a Meaningful and Workable Case Schedule Role of DOJ or FTC request for stay? Phased proceedings? How to address later-added parties? One-case schedule (CRT) Phased/tiered schedule (LCD, Auto parts) MDL/Remand Courts Other examples? Summary Judgment Post-Certification 13
Practical Aspects: New Rule 26 FRCP 26 Proportionality Amendment New FRCP 26(b)(1): Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties relative access to relevant information, the parties resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. 14
Practical Aspects: Professionalism N.D. Cal. Guidelines for Professional Conduct Apply to all lawyers who practice in N.D. Cal. Provide general guiding principle[s] in 19 areas, including: Responsibilities to the client, public, and opposing party Scheduling Discovery (depositions, RFPs, interrogatories) Motion practice Settlement and ADR Trial and hearings 15
Perspectives of the Stakeholders 16
Perspectives of the Stakeholders A Client s Five Insights into Antitrust Litigation Early focus. Active management. 1. Early motions (and rulings) on key legal issues that shape the case. 2. Meaningful guidance and limits on discovery. 3. Detailed case management orders/schedules, coupled with regular status conferences. 4. For lawyers: Develop and test messages and themes that permit early focus in discovery and motion practice. 5. At trial: Everyone benefits from (1) reasonable time limits; (2) pre-trial rulings on evidentiary motions; and (3) detailed trial management orders. 17
Questions? 18