A class action can have it all—thousands of potential members, a common grievance, solid lead plaintiffs, highly skilled counsel—and still fall apart if the expert witness can't deliver.

That's what happened when a federal judge in San Antonio this week sided with lawyers from Norton Rose Fulbright; Gibson, Dunn & Crutcher and Simpson Thacher & Bartlett and refused to certify an 11,000-member class of registered nurses who alleged that local hospitals conspired to fix their wages.

The suit in San Antonio was one of five similar classes—others were filed in Chicago, Detroit, Memphis and Albany—and the only one still pending. (It's been moving in slow-motion for more than 12 years before U.S. District Chief Judge Orlando Garcia in the Western District of Texas.)

When the cases were filed in 2006 by co-counsel from Keller Rohrback; Cohen Milstein Sellers & Toll and James & Hoffman, plaintiffs lawyers at a press conference said that the hospitals “have decided to increase their profits on the backs of their nurses … Nurse pay should be set by the market, not by a secret agreement among hospitals.”

They sought trebled back compensation plus interest, fees and costs—hundreds of millions of dollars in damages.

But the case outcomes have diverged wildly—an interesting study in how similar claims fare before different judges.

In Detroit, U.S. District Judge Gerald Rosen certified a class of 20,000 nurses and denied the defense's joint motion for summary judgment and motion to strike the plaintiffs' expert testimony. The suit settled shortly before trial in 2015, with total payouts totaling $90 million.

Jenna GreeneThe Albany suit settled in 2011 for about $14 million after U.S. District Senior Judge Thomas McAvoy certified a 3,200-member class in part, greenlighting claims for certain issues. Like Judge Rosen, he denied summary judgment and allowed the plaintiffs' experts.

Memphis was a bit of a fluke. In 2008, U.S. District Judge Samuel H. Mays, Jr. ruled that the name plaintiffs were not adequate representatives because one had a conflict and the other had recently filed for bankruptcy. In tossing the case, he also ruled that plaintiffs waited too long to try to substitute new class representatives.

The plaintiffs struck out in Chicago as well, but on more ominous grounds. U.S. District Judge John Grady tore apart the nurses' proffered expert, Gordon Rausser, an economics professor at the University of California, Berkeley.

Rausser's declarations were “vague and inscrutable,” the judge wrote in 2009 when he denied class cert. Indeed, he said that the defense expert “describes Dr. Rausser's techniques in much clearer fashion than does Dr. Rausser himself.”

Grady continued, “There are fundamental problems with Dr. Rausser's analysis that go to the core of the predominance issue and persuade us that plaintiffs cannot meet their burden of demonstrating that they have a viable method of showing class-wide injury with common proof.”

Little wonder the plaintiffs opted not to use Rausser as their expert in the San Antonio case. But they also didn't use the expert who passed muster in Detroit and Albany, Orley Ashenfelter, an economics professor at Princeton. Instead, they tapped Ashenfelter's Princeton colleague, Professor Henry Farber.

Farber declined comment. Plaintiffs lawyer Raymond Farrow of Keller Rohrback did not respond to a request for comment.

In refusing to certify the class, Garcia on Tuesday hung his decision on Farber's analytical shortcomings.

The judge had no trouble finding the plaintiffs satisfied the Rule 23(a) requirements. The class was numerous and easily identified—registered nurses on staff at the three defendants' acute care hospitals in the San Antonio metropolitan area from 2002 to 2007.

There was a common contention: that defendants conspired to suppress the wages of registered nurses, allegedly holding regular joint meetings to discuss RN pay and conferring about nurse wages prior to implementing increases.

The three named plaintiffs, all local nurses, were willing and able to represent the class fairly.

But satisfying the Rule 23(b) requirements was another matter.

Garcia noted that to prevail, the plaintiffs must show that there was an antitrust violation, and that the violation caused an antitrust injury with measurable damages.

“There is simply no road to recovery, in either a class or individual action, unless there is evidence of a causal connection between the specific antitrust violation and the alleged injury to the plaintiffs,” Garcia wrote. “After reviewing the record, the court finds that Professor Farber's opinions do not address a causal link and thus do not assist the court in determining whether antitrust injury/impact can be shown with evidence common to the class.”

The plaintiffs pointed to their Detroit case for support, but Garcia was unimpressed. The testimony offered by the plaintiffs' experts there might have been good enough for Judge Rosen (albeit just barely), but Garcia concluded it suffered the same “obvious omission” as Farber's testimony.

That is, “there is still no factual explanation of how plaintiffs would show a causal link between the conspiracy and the wages of staff registered nurses,” he wrote.

“Plaintiffs have not demonstrated that antitrust impact/injury, which hinges on a causal link to the violation, can be shown with common evidence on a classwide basis,” Garcia continued.  As a result, he found that he “cannot conclude that common issues would predominate over individual issues” and denied class certification.

Norton Rose partners Layne Kruse, Darryl Anderson, Seth Isgur and Mario Barrera represented Christus Santa Rosa Health Care Corp. They declined comment.

Simpson Thacher's Andrew Lacy and Abram Ellis led the team for Methodist HCA, and Veronica Lewis and Josh Lipton of Gibson Dunn represented Baptist Tenet.

Preaching to the Choir

“The best policy is to make PACER free. The economics of electronic information make that easy. … Creators of these records need no incentive to create. Judges do not write opinions or issue orders for profit. Clerks do not get a bonus for each docket entry. And litigants do not file papers because they expect royalties.”

— Amicus brief on behalf of former federal judges by Hogan Lovells lawyers Sean Marotta, Claudia Pare and Stephen Schultze in the PACER fees class action.

In requesting interlocutory appeal, Qualcomm lawyers from Keker, Van Nest & Peters said the class of some 250 million cellphone purchasers is unprecedented and that U.S District Judge Lucy Koh had “casually dismissed the due-process and manageability issues” it would present.

The panel rejected claims from a lawyer that he should be allowed as a job applicant to bring age-discrimination claims for an in-house position he was not offered.

Arent Fox has sued one its former partners, Jay Deshmukh, alleging he breached an agreement to pay the firm $96,000 when he negotiated a speedy exit to join Kasowitz Benson Torres last fall.

The complaint alleges that while representing two feeder hedge funds, Reed Smith missed a key deadline for bringing a potentially lucrative lawsuit against Standard & Poors, Moody's and Fitch Ratings.

“It's definitely not 'Oh my God, they filed bankruptcy, we're out of luck!'” said Mike Danko, whose firm, Danko Meredith, represents 1,000 victims of the Camp Fire.

Um, except the lawyer, Jose Baez, also represented actress Rose McGowan, who in media statements has accused Weinstein of sexually assaulting her in the 1990s.

In case you missed it…

In some ways, it's a problem many lawyers wish they had—how to juggle multiple appellate arguments.

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