There have been some significant developments in class actions in South Africa since the publication of World Class Actions this past August. South African contributor Neil Kirby of Werksmans send an update, summarizing in detail the class certification requirements outlined by the South African Supreme Court of Appeal in a seminal cartel (antitrust) case titled Children’s Resource Centre Trust vs Pioneer Food Proprietary Limited (50/2012)  ZASCA 182 (29 November 2012). Click here for Kirby’s excellent summary of the decision.
Posts Tagged ‘cartel’
Posted in Articles, International Class Action Law, tagged antitrust, cartel, children's resource, class action, class certification, competition, kirby, pioneer food, south africa, supreme court of appeal, world class actions on February 4, 2013 | Leave a Comment »
Posted in Antitrust Class Actions, tagged antitrust, antitrust class action, antitrust law, Baker Hostetler, bakerhostetler, cartel, law blog, Practice Tips, trade regulation on December 13, 2012 | Leave a Comment »
For those of you looking in-depth coverage of developments and trends in antitrust law, be sure to check out the new blog, The Antitrust Advocate, sponsored by the BakerHostetler Antitrust and Trade Regulation Team. The Antitrust Advocate, “provides insights and commentary surrounding complex antitrust litigation and trade regulation.” The blog offers practical tips for litigating antitrust class actions, as well as covering the latest in substantive antitrust and trade regulation law.
Posted in Antitrust Class Actions, Class Action Decisions, tagged antitrust, behrend, cartel, class action, comcast, conspiracy, daubert, expert testimony, intra-class conflict, milk farmers, monopolization, monopoly, price fixing, regression analysis, sherman act, statistical analysis, subclass on November 21, 2012 | Leave a Comment »
My partner, Bob Abrams, sent me a copy of the order granting Plaintiffs’ Renewed Motion for Class Certification in Allen v. Dairy Farmers of America, an antitrust class action brought on behalf of dairy farmers alleging monopolization and a conspiracy to fix milk prices by various milk cooperatives and processors. Abrams’ team has been appointed as class counsel for one of the subclasses certified as part of the order.
The opinion includes an interesting analysis of at least two important issues: First, the extent to which intra-class conflicts of interest can prevent class certification and the extent to which the creation of subclasses can remedy those conflicts; and Second, the extent to which a defendant can avoid class certification in an antitrust case by pointing out alleged flaws in the plaintiffs’ expert’s opinion that a common, class-wide antitrust injury exists or by presenting conflicting expert testimony. The second issue is one that may be clarified when the Supreme Court rules later this term on Comcast v. Behrend.
Posted in Antitrust Class Actions, class action reform, Mass Tort, tagged allocation, anti-trust, antitrust, cartel, case management, common fund, competition, costs, eddy, esades, exclusion, fees, free rider, free-riding, geoffrey miller, geoffrey parsons miller, mdl, opt out, rosenthal, saveri on November 19, 2012 | Leave a Comment »
This is the fourth of what will be six posts summarizing my notes of the six presentations at the ABA’s 16th Annual Class Actions Institute held last month in Chicago. For more on this excellent conference, see my October 31, November 5, and November 6 CAB posts.
The fourth session was entitled “Sifting Through All the Big Shoulders,” Litigating Class Actions Alongside Opt-Outs – Free-Riding or Riding Shotgun. Vincent J. Esades moderated another distinguished panel, which included Professor Geoffrey Parsons Miller, The Honorable Lee H. Rosenthal, and attorneys Joseph R. Saveri and David C. Eddy.
Managing parallel class and opt out cases in multidistrict litigation is an increasingly common and complicated venture, especially in antitrust litigation, where individual institutional plaintiffs may have a sufficient enough individual stake to justify hiring their own counsel and pursue their own claims. A potential free-rider problem arises in this context because individual plaintiffs have a right under Rule 23(b)(3) to opt out of any class, at least for the purpose of pursuing damages claims. This means that individual plaintiffs and their lawyers can take advantage of the time and effort expended by the named plaintiffs and their counsel early on in the case, only to opt out later and pursue their own litigation without having to share the benefits of any recovery with class counsel.
The panelists seemed to agree that there is an inherent tension between the opt out rights embodied in Rule 23 and the burdens on the courts of managing both class and individual litigation over the same issue. They also seemed to agree that, short of re-writing Rule 23, there is no simple solution to ensure that the parties and attorneys who come late to litigation are not free riders on the efforts of others. Professor Miller raised the question whether these problems suggest a fundamental change is needed in how mass litigation occurs, including a convergence of mass tort and class actions or a recognition that those labels don’t mean anything in the context of certain multidistrict litigation. Alternatively, can existing rules of civil procedure could be used to solve the problem? Whether the solution to this problem is litigation reform, a change in judicial philosophy, or creative solutions already within existing rules, much of the discussion surrounded a very pragmatic question, “What’s the blueprint?”
The allocation of fees and costs between a class and individual plaintiffs raises a host of difficult questions, including 1) can a court force an opt-out to pay a portion of the fees of class counsel? 2) does a court have jurisdiction to require the defendant to pay any portion of any individual settlement with one or more plaintiffs into an escrow account, where a portion of any fee award can be claimed by the counsel for other plaintiffs, depending on the work performed? and 3) if allocation between counsel is somehow permitted, how should non-monetary aspects of settlements be valued, such as agreements to provide a guaranteed source of supply of a particular product?
The judge does, of course, have express case management authority under Rule 16 as well as more general inherent discretionary case management authority. However, the problem in using these case managemnt tools tends to be a lack of information about the precise problems that need to be resolved. Judge Rosenthal pointed out that the judge is typically not in a good position to make that decision without the help of the lawyers because there is usually very little information the economic incentives driving different groups of lawyers. (In what might have been the most quotable quip of the entire program, she implored the three lawyers on the panel, “How do I get you guys to lift up your skirts?”) If there is more transparency by the parties and their attorneys, she argued, a judge would be a better able to allocate costs fairly. Once the problems and incentives are identified, there are case management tools available to incentivize conduct properly, even if a judge does not have direct authority to order one party to pay another’s fees. For example, the judge can help parties to understand the benefits of coordination of efforts voluntarily.
One key question debated by the panelists was whether procedures used in mass tort litigation can be applied to the class action context. On one hand, as one panelist pointed out, the management of class and individual actions in a single MDL raises different challenges than the management of mass tort cases in an MDL. In the mass tort context, one panelist pointed out, all the parties and their attorneys have to be involved in the proceedings from the beginning because of the nature of mass torts as a collection of individual actions. In the class action context, by contrast, individual plaintiffs can wait and see how the class action proceedings develop before having to get involved individually through their own counsel. On the other hand, as with any complex litigation, there are models and protocols that both parties and judges to look to in order to bring efficiencies to the litigation even when not every problem can be solved. While mass tort litigation is not completely analogous it can provide a source of ideas for judicial management of certain problems.
In the end, the point was made that this is not so much an issue of jurisprudence as it is a problem of judicial management. As with any issue with case management, the solutions will develop over time through experience, trial, and error.
Posted in Antitrust Class Actions, Class Action Decisions, Class Action Settlements, tagged abrams, antitrust, antitrust class action, cartel, class action, class action settlement, competition, complex, dairy farmers, dairy farmers of america, dean foods, howrey, milk farmers, sherman act, tennessee on July 17, 2012 | Leave a Comment »
Editor’s Note: I don’t often use this blog as a platform to brag about my firm, but I thought a recent success by my partner, Bob Abrams, and his cross-office antitrust team in Washington, DC and Los Angeles, was noteworthy. Abrams’ group came over to Baker Hostetler last year from Howrey, and they have been a fantastic addition to our class action practice, adding depth and expertise in the antitrust area. Congratulations to the team on achieving a great result.
Baker Hostetler represents a certified class of dairy farmers located in 14 Southeastern States against Dairy Farmers of America, Dean Foods and a number of other defendants in an action alleging violations of Section 1 of the Sherman Act. The lawsuit alleges that Defendants and alleged Co-Conspirators violated federal antitrust laws and as a result prices paid to dairy farmers were lower than they otherwise would have been.
After recently approving antitrust class settlements with Dean Foods and two other defendants worth $145 million and significant structural relief, the United States District Court for the Eastern District of Tennessee granted in its entirety Baker Hostetler’s motion for fees and expenses, noting “the quality of the work done by class counsel has been exceptional, not only with respect to the pleadings filed but also the oral advocacy during oral argument on various motions.”
In commenting on the wide-scale complex litigation led by Baker Hostetler partner Bob Abrams and his team, the Court noted:
Class counsel, who have extensive experience in complex class action litigation, have efficiently and competently managed their enormous task and have vigorously and effectively, prosecuted the case on behalf of the class. They have also been opposed by equally experienced and highly competent counsel for defendants and have achieved an excellent result for their clients.
Baker Hostetler continues to litigate against non-settling defendant Dairy Farmers of America and others, and trial in the matter is set for November 6, 2012.