Golden State Institute 25th Anniversary Retrospective and Prospective Views on California Antitrust and Unfair Competition Law
| Publication year | 2016 |
| Author | Edited by Craig Corbitt |
Edited by Craig Corbitt1
To commemorate the twenty-fifth anniversary of the Golden State Institute, there was a panel discussion of significant past and future trends in law and practice, in both state and federal antitrust laws and California's Unfair Competition Law ("UCL")2 Senior District Judge Susan Illston was the moderator, and the panelists were four experienced and prominent practitioners. Craig Corbitt and Dan Wall discussed antitrust developments from the plaintiff and defense perspectives, respectively, while Kim Kralowec and Will Stern discussed plaintiff and defense perspectives on the UCL.
- Judge Illston was appointed to the Northern District of California in 1995 by President Clinton, and took Senior Status in 2013. Before that she was in private practice for over twenty years with Cotchett & Illston in Burlingame, where she litigated numerous antitrust cases, among others. She has presided over many antitrust and other complex cases on the bench, including the massive LCD criminal and civil price-fixing litigation and other high-profile cases such as United States v. Barry Bonds.
- Craig Corbitt is Of Counsel to Zelle LLP in San Francisco. He has been a practicing antitrust lawyer for nearly forty years, a majority of the time representing plaintiffs in both individual and class cases. He has been honored numerous times by Best Lawyers, Global Competition Review, Super Lawyers, and others. Craig was the California State Bar's Antitrust, UCC, and Privacy Section's "2015 Antitrust Lawyer of the Year."
- Daniel Wall is a partner of Latham & Watkins LLP in San Francisco. He has been an antitrust lawyer for almost thirty-five years, representing defendants in litigation and companies in mergers and counseling. He has been honored numerous times by Chambers USA, Best Lawyers, Global Competition Review, and Super Lawyers, and was named one of the "Top 100 Lawyers in California" by the Daily Journal in 2011.
- Kimberly Kralowec is the principal of the Kralowec Law Group in San Francisco. During her nearly twenty-five years as a litigator, Kimberly has represented plaintiffs in class actions involving antitrust and the UCL, in areas including consumer finance, employment (wage and hour and misclassification), and civil rights (Unruh Act). Kimberly publishes The UCL Practitioner,3 a legal weblog covering the UCL, Consumer Legal Remedies Act, and class action law in California and the Ninth Circuit. Kimberly has been selected by the Daily Journal as one of the "Top 100 Labor & Employment Lawyers in California" as well as one of the "Top 75 Woman Lawyers (Litigation) in California" and received a 2013 "California Lawyer Attorney of the Year" Award.
- William Stern is a partner of Morrison & Foerster in San Francisco. He has been practicing for nearly thirty-five years, primarily representing defendants in consumer class actions. He is the author of The Rutter Group's Bus. & Prof. C. §17200 Practice, and was the principal author of the 2004 voter initiative Proposition 64, which amended and narrowed the standing requirements of the UCL. William has been honored numerous times by Best Lawyers and Super Lawyers, and is a fellow of the American College of Consumer Financial Services Lawyers.
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Judge Illston: Thank you, and good afternoon, ladies and gentlemen. I am delighted to be here with all of you and with such a splendid panel this afternoon. We are going to do a retrospective and a little bit of a prospective on the twenty-five years that the Golden State Institute has been tracking antitrust and unfair competition law issues. To that end, we'll get to some questions and answers in just a moment. First, though, I wanted to start with a joke, of course, and my joke is going to be a joke on the Australian Competition Commission. Nothing like this could ever happen here, this is about Australia.
There were a group of three business owners who were sitting in the anteroom of the Australian Competition Commission offices, each waiting to be charged for having gotten into dreadful trouble. Eventually the conversation turned among them to why are you here, what have you done? The first said, "Well, I charged higher prices than everybody else, and they accused me of profiteering." The second said, "I charged lower prices than everybody else, and they accused me of predatory pricing." The third said, "I charged the same prices as everybody else, and they accused me of collusion and price-fixing."
As I say, that could only happen in Australia. But if it were to happen here, we have experts on the panel to deal with price-fixing.
First, we thought we would talk a little bit about the antitrust side of things. Our time is limited, and we are going to discuss on the antitrust side three primary questions or issues that have come up that are interesting. One is the rise of the major cartel cases that we have seen, certainly out here, second is the globalization of antitrust and the consequences of that to the practice, and the third is antitrust in the high-tech field.
For those of you who have been here and paying any attention at all, in the last twenty-five years one of the biggest things that has happened has been the rise of the huge global price-fixing cases. They have spawned criminal prosecution, all kinds of civil litigation, class actions, direct actions and everything else. In this district alone we have had the LCD cases, the Optical Disc Drives (ODD), DRAM, and many others.
So first I'd like to ask Dan and Craig: explain this to us, what do you attribute this to and how has it affected your practice? Dan?
Wall: Thank you for joining us here today. I am really happy to be a part of this program. Actually, I am conflicted because it means that I am old enough to be asked to be on a retrospective panel now, which is too bad.
But as we thought about this, one of the things, it was an interesting thing to try to think, what are the big things that have happened in the last twenty-five years? And one of the ones that just seemed to me to be so hugely transformative to the practice of antitrust law really comes out of the DOJ corporate leniency policy in 1993. That's when it went into effect. It really was transformative of criminal antitrust law and, therefore, indirectly of class actions.
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If you remember back then, if you were around then as a few of us were, criminal law was not a very important part of the practice. It really wasn't anything of any great consequence, it was mostly cases that people called the "roadrunner cases," paving contractors and school milk lunch programs and things like that. Meanwhile, it's obvious that there were gigantic amounts of price-fixing going on all over the world in all sorts of different industries.
It really wasn't until the corporate leniency that came along that created the incentive system for people to self-report this that we saw this enormous change in both the frequency and the scale of the cartel cases that went along. Much of this happened right here in the Northern District of California, where the San Francisco field office, which at that time was led by Gary Spratling, prosecuted some of the first key cases and secured for itself a very unique role within the antitrust division as the one field office that had a very strong charter to go after cartel cases.
That then sort of intersected with the existence of this extraordinary plaintiffs' bar that has always been here in San Francisco, and that is obviously well-represented to my left, but so many of the great antitrust plaintiff lawyers in the country were also here, and it has made this one of the districts that had a natural home for this kind of case, particularly the follow-on class action case, which led to the inevitable direct purchaser case, followed by the inevitable indirect purchaser case, which, of course, allowed the plaintiff lawyers to engage in their own market division as to who would do which one.
No, as if it doesn't happen, yeah. Somehow I guess it's okay. So here we are.
Judge Illston: Here we are. Craig, what do you say about that?
Corbitt: Well, I think Dan certainly has the big picture right. I am gratified to hear such a proud defense lawyer admit that there was enormous cartel behavior all over the world.
Wall: But not by my clients.
Corbitt: And of course we know that from the concentration of cases here and the information we got in discovery.
As Judge Illston mentioned, there have been enormous cases here, DRAM, LCD, CRT, ODD, new ones, relatively new ones like Capacitors, Lithium Ion Batteries, and so forth that have really made this district the center of this kind of litigation across the country.
Part of it, I think, is the high-tech reputation that this area has, deservedly so. Part of it also was the judges. You know, not only Judge Illston, but Judge Alsup, Judge Conti, who had the CRT case, Judge Hamilton with DRAM, were all highly regarded jurists, and the multidistrict litigation panel really had no problem about sending these cases here.
Dan mentioned the deep plaintiffs' bar. I don't know how deep it is, but it is certainly bigger than it was twenty-five years ago. That's a huge change. Maybe we will hear more about that tonight. But when I started out with Fred Furth in 1979, there were a few people that did this, mostly alumni of Joe Alioto—Mayor Joe Alioto—Guido Saveri, Fred, Fran Scarpulla, and some others, but not that many. There are many, many more now, new firms that are spinoffs of people who have left their former ones.
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As a consequence, for example, I think in LCD there were over 100 indirect cases filed, and many direct purchaser cases. Opt-outs are a huge deal now, which they weren't twenty-five years ago, that's when it started.
And the state attorneys general are in there in a big way in many of these...
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