Don't Believe The Myths. Antitrust Jury Trials Are Winnable

Monday, June 1, 2009 - 01:00

Antitrust cases present a combination of legal and economic issues that even judges may find challenging. A jury adds a host of extra variables that even effective voir dire won't eliminate. Add on treble damages and attorney's fees, and you can understand why the vast majority of cases settle.

However, one of these factors - the vagaries of juries - is often highly exaggerated. Horror stories may, indeed, occur when litigators leave behind their usual communications principles and subject antitrust juries to mind-numbing repetition and detail, aiming to make every last point understandable to every juror.

Besides the overflowing documents, antitrust cases present unique challenges. Jurors have to learn about a business that may be completely foreign to them, and then they are asked to determine how that business would have operated absent alleged illegal activity. Plaintiffs often must present a case through hostile witnesses. Defendants lose witnesses to fears of potential criminal ramifications. And nowhere is there a witness who can lay out the whole story.

But, having successfully tried two antitrust jury trials in the last two years, including one class action, I can attest that the issues are manageable. Not buying into some of the myths about antitrust jury trials is the first step.

Myth #1: Jurors Can't Understand Economics, Let Alone Antitrust Cases.

Most jurors intuitively understand economics fundamentals from their everyday life. For example, most jurors understand that the local cable monopoly can seemingly set prices at its own whim, and there is little recourse because there is no competitor. Likewise, grocery shoppers in the Midwest recognize that the prices of fresh vegetables go down in the summer when local farms can increase the supply. Volume discounts are another common experience. People seem to understand that if you use more minutes on your cell phone, the provider is more willing to offer a lower per-minute cost. Even if all jurors cannot fully articulate the economic theory, they recognize it when applied to their everyday lives.

Good litigators don't "educate" juries, they tell a story, focusing on the jurors' collective capacity to understand the case, catering neither to the most challenged individual nor to the least. These principles are equally important when presenting expert testimony. It's pointless to try to teach juries the DOJ's "SSNIP test" for determining market definition. If they need that information, I'm quite certain it can be explained without use of the term "SSNIP."

Myth #2: A good expert can roll the jury.

There's a danger that litigators will be dazzled by their own economist's expertise and forget that, as with fact witnesses, likeability and credibility are critical for expert witnesses. If the other side's expert is as likeable and credible as yours, don't expect the jury to roll up their sleeves to determine who's right (even though you firmly believe that a roomful of economists would conclude that yours is).

Let's be clear. I like economists. Many antitrust lawyers even have some background in the dismal science. But if your case hinges on whether the jury believes the variables or co-efficiencies in your regression analysis are better than the opposition's, settle. Effectively using expert economic testimony requires counsel and the witness to be in tune with the jury - understanding what has already resonated in the case and what still needs to be explained.

That's not to say the technical quality of an expert's analysis is irrelevant. Jurors, who have been educated by television, perk up for withering cross-examinations. Significant hemming and hawing will be duly noted.

If the expert is to engage the jury in a positive way, the litigator must anticipate and respond to what the jurors will find interesting or at least informative. Analogies and even humor are very useful here. As the expert is typically a seasoned witness and is not likely to succumb to nerves as a fact witnesses can, the lawyer can focus on the jury - when is interest waning or a concept not registering? Creativity is important in an expert examination, far more so than during most fact examinations. Jurors can often identify with fact witnesses, but experts and lawyers can get caught up in a virtually private conversation, with jurors feeling left out.

Lawyers should resist the urge try to prove "our expert is better than yours." Most jurors look at competing expert qualifications as a wash. I'm much more concerned about my expert being memorable, maybe even likeable, and definitely non-soporific.

Myth #3: Once a class is certified, it must be settled.

Having successfully defended an antitrust class action - in November 2008, Louisiana Wholesale Drug Co. v. Sanofi-Aventis (SDNY) - I'm well aware of the litany of reasons that are advanced to settle such suits, principally the potential scope of damages after trebling and fees and, if there are multiple defendants, joint and several liability. But the reward of a successful defense - extinguishing potential liability across the full range of the class - is also substantial.

Given the power of the plaintiffs' bar, and understanding the size, capabilities and motivations of the individual members of the class, defendants may even choose not to challenge certification in the first place. In fact, this was the case in our Sanofi-Aventis trial. Facing multiple single-plaintiff cases is hardly a panacea. There are collateral estoppel issues, and although damages in an individual case are less than in a class case, one adverse verdict could open a floodgate to additional claims that may no longer even be triable on critical issues.

If the substantive defenses are strong, the class nature of a case should not keep it from a jury.

Myth #4: Jurors are looking for ways to punish greedy corporations.

These days, politicians who point fingers at everybody's favorite villain - the faceless corporation - are doing well. Plaintiffs, of course, are happy to use the punishment theme when wrongdoing has been proven. But the theme is not all-powerful, and its damage can be diminished.

Litigators should start by acknowledging that companies try to earn as much money as they can. In fact, they owe it to employees and their families, and (if public companies) shareholders. Most jurors can relate to that. Then they must show their client is guided by ethics and unrestrained competition.

Plaintiffs who overplay the greed card, without proving clear anticompetitive conduct, are likely to leave at least some jurors feeling manipulated.

Myth #5: A per se case is a far greater risk to defendants than a rule of reason case.

A per se price-fixing case that follows on the heels of a criminal plea for the same conduct is almost always settled. But significant triable issues can be present in such cases. Civil plaintiffs may allege a conspiracy that is broader in scope than what has been admitted in the plea. Often there is a question about whether a criminal conspiracy can be shown to have been longer in duration than what is established in the plea, or plaintiffs may allege that it affected geographic areas that are wider than what the plea specifies. And, of course, there is the question of damages. Although settlement is the typical route, per se cases can be triable. In some respects, the issues in these cases can actually be easier to present to a jury because the conduct questions usually revolve around one issue: Did they do it?

Rule of reason cases would seem easier to defend because they are not accompanied by guilty pleas, but they can present difficult analytical questions. Jurors will be asked to balance competitive versus anti-competitive effects of the alleged conduct. The successful litigant will be the side that is best able to simplify the case for the jury, so that when it collectively asks why certain conduct occurred, it is put in the correct context. If one side doesn't effectively resolve those "why" questions during the course of the trial, it will face an unpleasant outcome.

Myth #6: Every company has bad documents that can be used to suggest anti-competitive behavior.

While it is often true that defendants will have to explain conduct and communications that on their face can look conspiratorial or anti-competitive, the damage can be limited when the documents are put into context. For example, businesses invariably have documents that appear to have an "insider's" understanding of a competitor's pricing. Rather than play "whack-a-mole" as each one pops up, I prefer presenting the broader context. Often, the issues can be adequately rebutted with a single witness who can effectively describe the company's methods of gathering information, including what's passed along by customers, distributors and agents.

To summarize, I firmly believe that even the most complicated antitrust cases can be presented to a jury and won, if counsel provides a clear roadmap and doesn't clutter the case with unnecessary and repetitive information or concepts. The stakes are usually high, but that makes success all the sweeter. As the song says, we can be heroes.

A Partner in Jones Day's Washington and Columbus offices and coordinator of the firm's global antitrust and competition law litigation, John Majoras has over 20 years experience in general commercial litigation, with a particular focus on antitrust matters. He also has handled business disputes concerning product liability, hostile corporate takeovers, copyright, tax, contract, and entertainment law. He recently has defended significant civil antitrust cartel challenges, including multidistrict class actions, in the pharmaceutical, credit card, paper, packaged ice, marine hose, and waste hauling industries. In addition to his trial practice, John advises clients on antitrust and FDA regulatory issues, particularly in patent and pharmaceutical matters. The views expressed in this article are solely those of the author. This article is excerpted from a more comprehensive piece that was presented at the ABA Antitrust Section 2009 Spring Meeting and will be published in the Section's on-line Journal. Full text is also available by request to the author.

Please email the author at jmmajoras@jonesday.com with questions about this article.