It was a fairly narrow field this week for Litigator of the Week. We were impressed by Harmon Caldwell Jr., Harry MacDougald, Jeremy Moeser and Christine Dial of Caldwell, Propst & DeLoach, who scored a malpractice verdict against Alston & Bird in a hard-fought case.

Morgan, Lewis & Bockius was a runner-up as well. Partners Susan Feigin Harris and Geri Edens secured a big win for 12 of the nation's largest pediatric hospitals in a Medicaid reimbursement case. On March 6, U.S. District Judge Emmet Sullivan vacated a Centers for Medicare and Medicaid Services rule that altered a critical funding formula that shortchanged the hospitals by tens of millions of dollars.

But considering the risk and the results, it was hard to top the win by Winston & Strawn's co-executive chairman Jeffrey Kessler on behalf of Panasonic Corp. in a long-running antitrust battle.

Ben Hancock has the story.

Litigator of the Week: A Big Risk—And a Big Win

By Ben Hancock

One, they say, is the loneliest number.

It's even lonelier when you're facing treble damages topping $1.7 billion.

After every other major manufacturer of lithium ion batteries ensnared in a years-long indirect purchaser antitrust case settled out, it seemed Panasonic Corp. might be left holding the bag.

On Monday, its defense team at Winston & Strawn instead made the company look like the smartest of the bunch for continuing to fight, after a federal judge in Oakland, California delivered a crushing blow to the plaintiffs' case. For that, Winston co-executive chairman Jeffrey Kessler earns the title of Litigator of the Week.

Agreeing with Kessler, U.S. District Judge Yvonne Gonzalez Rogers of the Northern District of California struck the plaintiffs' key expert and denied their motion for class certification with prejudice. It was the second time she denied it, after plaintiffs made a first run last year.

As with most antitrust cases, the decision turned on wonky economic factors. But Kessler and his team were convincingly able to argue that the plaintiffs' expert, Edward Leamer of the University of California, Los Angeles, had not proved how consumers were impacted by the alleged price fixing by Panasonic and its subsidiary Sanyo.

Leamer, according to the judge's ruling, argued that manufacturer battery overcharges had been passed on 100 percent to consumers rather than absorbed by device makers or retailers. Even if not, he contended, trade-offs by device makers to account for price diminished the quality of the goods consumers bought.

Bunk, Gonzalez Rogers ruled. “Defendants argue that Dr. Leamer's analysis does not establish whether such quality-based 'pass-through' through ever occurred, or in what amounts, and that his analysis is pure theory without any factual support,” she wrote. “The court agrees.”

She also didn't buy the expert's explanation of how alleged overcharges of a few dollars per battery were passed through to consumers, given that retailers often use “focal point” pricing for devices—selling a basic laptop, say, for $599 and then pricing the next model up at $649. Having failed to do that, she wrote, “the court cannot find that the antitrust injury … can be determined on a common basis as to the putative class.”

In an interview Wednesday, Kessler called the decision “well-reasoned” and said he expects it will be “influential in the debate that goes on around the country as to how to follow the Supreme Court's mandate in reviewing class certification motions.” The decision referenced high court cases centering on this issue, including Dukes v. Wal-Mart and Comcast v. Behrend.

“There are many such [antitrust] cases in the Northern District, but this is also an important issue in virtually every courthouse where class actions are filed,” Kessler added.

The Winston team faced a formidable set of attorneys on the other side, including class action lawyers from Hagens Berman Sobol & Shapiro; Lieff Cabraser Heimann & Bernstein, and Cotchett, Pitre & McCarthy.

It's not clear whether they will seek to continue with the litigation, which began in 2013. Jeff Friedman of Hagens Berman, one of the lead lawyers in the case, wouldn't comment on next steps when reached by email. A status conference is set for April.

Kessler also acknowledged the team that he's worked with on the case and the experts on Panasonic's side. “I think it's that combined effort that allows us to present the strongest possible case and one that is understandable,” he said.

 

Shout-Out: Simpson Thacher Succeeds in Securities Action

A Simpson Thacher & Bartlett team on Thursday got a securities action dismissed against Brazilian multinational conglomerate Andrade Gutierrez International and Andrade Gutierrez Engenharia.

Partner George Wang and associates Matthew Bricker and Christopher Jumin Lee persuaded Judge U.S. District Judge Jesse M. Furman in the Southern District of New York to dismiss the complaint in its entirety, arguing that the plaintiffs failed to plead any actionable misrepresentation.

“The bottom line is that defendants disclosed the precise risks that came to pass,” Furman wrote. He also refused to grant leave to amend.

The plaintiffs, led by Banco Safra S.A.- Cayman Islands Branch and Safra National Bank of New York, were represented by The Rosen Law Firm and Mulholland & Knapp.

 

ACTL Litigators, Take a Bow

The American College of Trial Lawyers inducted 95 new members at its 2018 spring meeting in Phoenix over the weekend.

Kudos to all the inductees—an elite sliver of litigators who are tapped for their professional accomplishments as well as their civility and collegiality.

Here are the new Big Law members:

Mark Holscher, Kirkland & Ellis, Los Angeles

Carolyn J. Kubota, Covington & Burling, Los Angeles

Eric M. Acker, Morrison & Foerster, San Diego

Regina M. Rodriguez, Hogan Lovells, Denver

Peter H. White, Schulte Roth & Zabel, Washington, D.C.

Eric R. Breslin Duane Morris LLP, Newark

Martin J. Black, Dechert LLP, Philadelphia

Barry Gross, Drinker Biddle & Reath LLP, Philadelphia

Beatrice O'Donnell, Duane Morris LLP, Philadelphia

1. Patrick Long, Squire Patton Boggs (US) LLP, Dallas

Patrick W. Mizell, Vinson & Elkins LLP, Houston

 

Lateral Watch

Baker McKenzie grabbed five litigators from Hogan Lovells, including a trio who will launch a Los Angeles office for the firm.

Robin Samuel, Barry Thompson and Joe Ward w

ill become founding partners of the new L.A. office, while Mark Goodman and Ethan Miller will be based in San Francisco and Palo Alto.

“Our new partners will take on significant commercial and employment litigation as well as class action cases for clients across multiple industries,” said Colin Murray, North American managing partner for Baker McKenzie.

For more, see Baker McKenzie Nabs 5 Hogan Lovells Partners, Launches Los Angeles Office

 

What I'm Reading

Lessons for Big Law Spinoffs (We've Seen This Before)

A really interesting piece by my colleague Scott Flaherty reality-checking the bold visions of Selendy & Gay and Wilkinson Walsh + Eskovitz with two established litigation spin-offs—Boies Schiller and Bartlit Beck—which also started off wanting to break the traditional Big Law mold.

 

Michael Cohen's $130K Payment to Stormy Daniels: What's Next at the FEC

The agency is not known for its swift or decisive responses.

How NFL, 9/11 Settlements Could Complicate Emerging Law on Litigation Funding

Are litigation funding agreements investments or loans?

Rakoff Sends Uber Suit to Arbitration, but First Sounds Off on Why the Law Is Wrong

In two and a half pages of dictum, Rakoff blasts the judiciary for enforcing what “everyone recognizes is a totally coerced waiver of both the right to a jury and the right of access to the courts.”

For Lawyers, the Cease and Desist Letter Is the New Press Release

When a cease and desist letter—or a response to one—attracts media attention and public attention, it becomes more than a simple letter: it serves as a press release for the lawyer signing the letter and the client who asked its lawyer to send the letter.

Collector Spent $18 Million On Counterfeit Vintage Wine. His Insurance Policy Didn't Cover The Fraud.

For years, the seller had been filling empty wine bottles with his own wine blend and affixing counterfeit labels to the bottles. But insurance didn't cover being a sucker.

Federal Court Delivers Massive Blow to Big Tobacco on Yearslong Challenge

The Eleventh Circuit thwarted efforts by tobacco companies to overturn a multimillion-dollar judgment.

EEOC Takes 'Zarda' LGBT Win on the Road to Another US Appeals Court

Even under the Trump administration, the agency has been a leader in arguing that sexual orientation should be protected under Title VII of the Civil Rights Act.