Managing Antitrust and Complex Business Trials—a View from the Bench

• Jurisdiction: United States,Federal,California
• Citation: Vol. 30 No. 1
• Publication year: 2020
• Author: By Elizabeth Tran Castillo
• topic: Antitrust and Competition,Business of Law,Commercial Litigation,Civil Procedure

MANAGING ANTITRUST AND COMPLEX BUSINESS TRIALS—A VIEW FROM THE BENCH

By Elizabeth Tran Castillo¹

In 2019, the Golden State Institute continued the tradition of hosting a panel of judges with backgrounds and experiences of managing antitrust and complex business litigation and trials. Three distinguished Northern District of California jurists—Judge Vince Chhabria, Judge Haywood Gilliam, and Magistrate Judge Jacqueline Corley— offered their insights and perspectives on these issues in a panel discussion moderated by Elizabeth Castillo.

Panelists

• Judge Haywood S. Gilliam, Jr. serves as a United States District Judge for the Northern District of California. Judge Gilliam received his commission in December 2014. He graduated magna cum laude from Yale College in 1991 and received his J.D. from Stanford Law School in 1994. After law school, Judge Gilliam clerked for the Honorable Thelton E. Henderson, then the ChiefJudge for the Northern District of California. Judge Gilliam was in private practice from 1995 to 1998 and worked at the U.S. Attorney's San Francisco Office from 1999 to 2006, ultimately serving as Chief of the Securities Fraud Section. Before his appointment, Judge Gilliam's law practice focused on white collar criminal and regulatory matters and internal investigations.
• Judge Vince Chhabria serves as a United States District Judge for the Northern District of California. Judge Chhabria was nominated by Barack Obama on July 25, 2013 and confirmed by the Senate on March 5, 2014. Before taking the bench, he was chief of appellate litigation for the San Francisco City Attorney's Office, as well as a deputy on the Government Litigation Team for that office. Prior to joining the San Francisco City Attorney's Office, he worked in the San Francisco office of Covington & Burling, where he focused primarily on criminal defense litigation. He served as a law clerk to Supreme Court Justice Stephen Breyer during the 2001-2002 term. Before that, he clerked for James R. Browning on the Ninth Circuit and Charles Breyer on the Northern District of California.
• Magistrate Judge Jacqueline Scott Corley has been on the federal bench since 2011 and has presided over nearly every type of civil action at all stages of the proceedings, from motions to dismiss through jury trial. She has also served as a settlement judge in hundreds of cases. She currently serves as the Northern District's Alternative Dispute Resolution Magistrate Judge, in charge of coordinating the alternative dispute resolution program with the Court. Just prior to taking the bench, Judge Corley was a partner at Kerr & Wagstaffe, LLP. From 1998 through 2009 Judge Corley served as a career law clerk to the Honorable Charles R. Breyer. She also served on the Northern District of California Alternative Dispute Resolution mediation and early neutral evaluation panels from 2006 through her appointment. Judge Corley received her undergraduate degree from U.C. Berkeley, and her J.D. from Harvard Law School, magna cum laude, where she was an editor and Articles Chair of the Harvard Law Review.

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I. MANAGING COMPLEX CASES

MS. CASTILLO: Good afternoon, everyone. My name is Elizabeth Castillo, and I have the honor of moderating this distinguished panel of federal judges from the Northern District of California, all of whom have a wealth of wisdom regarding complex case management and best trial practices.

Welcome, judges, and thank you for being with us here today. Let's jump right into managing complex cases. Let's first begin with your experience in complex cases and your practices and procedures for presiding over them. We'll start with Judge Chhabria.

JUDGE CHHABRIA: I don't know if I can describe one road map for managing complex cases. I mean, they are complex, and they are usually unique, right? So my approach is that I try not to have a set approach. I try to think about every case based on the facts and law and the nature of the case what is the best way to manage and schedule the case in a way that's going to be least costly for the parties and move the case along as quickly as possible, but I honestly have some kind of default approaches to class actions that I assume we'll talk about later, but for the most part, I don't have one set approach. I really try to go into each case with an open mind as to how to manage it and schedule things.

JUDGE CORLEY: So my experience as a magistrate judge is going to be a bit different where I have some complex cases on consent. Just having to get consent from everyone makes it less likely, so I deal with the more for discovery and for settlement. And I guess I would say my philosophy with complex cases is we tend to have pretty experienced counsel. So my philosophy is to sort of go with counsel, really rely on counsel, give them the time and ability to come up with proposals for me for discovery, encourage them. Maybe require them to come up with a really thorough discovery plan, but then not mess with it, right? Say, okay, you agreed to it, accept it.

The same thing with settlement is really spend a lot of time on the phone figuring out what is our best way to proceed, and then what I really think with complex cases is often what the best thing a judge can do is give parties deadlines. And so I'm happy to do that, and as much as possible, where there's a deadline for the discovery, a deadline to come up with a stipulation, a deadline to do this. And I've found with complex cases that's what actually keeps them moving the most.

JUDGE GILLIAM: I do in each case that comes in as a new civil case have, as Judge Chhabria was saying, some defaults that are the standards, especially in terms of the schedule. So generally, if it's a relatively straightforward case, I often look to have a schedule that could have the case resolved within about a year. Sometimes for more complex cases, it could take 18 months or longer, but like Judge Chhabria, that is a starting point, and my practice in the complex cases especially is that I do rely very heavily on the parties' counsel to meet and confer, really think about the case before that first case management conference. And come up with a set of proposals that we then can discuss for moving the case along in a way that's timely and efficient.

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One of the immediate bad signs in a case management conference statement is when I get two dueling schedules that are dramatically different because, obviously, the parties know the case much better than I do at that point. You're deeply immersed in it, and I urge counsel to really think together about what makes sense. And then we talk about it. I don't impose the default unthinkingly. If there is something about the particular case that counsel different approach, I'm going to consider that. Sometimes I experiment in terms sequencing, if the parties are making a joint proposal and they present well-thought thorough reasons for trying it, I will consider that. But really, I think the fundamental expectation coming in is that I do ask a lot of counsel in terms of really deeply thinking about the case, figuring out where the real disputes are, as opposed to just disputing everything and throwing it to me to resolve. And I like to set up a relationship where we can work in a way that's collaborative, understanding it's adversarial, but to the extent we can figure out what makes sense in the parties' view for the case, I think that ends up working better than the alternative where I just end up imposing something because the parties can't come to a mutual proposal.

JUDGE CHHABRIA: And I wonder, Jackie, you and I have talked about this over the years, I wonder if I may differ a little bit from you on one point that you make, which is I think I might be less inclined to defer to counsel if they agree on an approach. I think I tend to ask, well, why are you proposing it this way. Is it just because that's how it's always done. You know, have we really thought about whether that might not be the right way to manage cases. I mean, it might make more sense to not make waves with the parties if they agree how to move the case forward, but I do find myself at times saying, no, I think we should do it this way and tell me why my idea is bad. And if they can't explain to me why my idea is bad, I might impose my own way of doing it on both sides.

MS. CASTILLO: At the initial the CMC, do you like to set a case schedule early on that runs through trial or leading up to trial, or how far do you like to set the schedule

at the initial CMC?

JUDGE CHHABRIA: I set the case through trial except in class actions. With class actions I will set it either through summary judgment or through class certification, and then we will sort of regroup after that. And there's often a big discussion about whether to do summary judgment as to the named plaintiffs first or do class certifications first, but other than those cases, I set the case for trial right away.

JUDGE CORLEY: I do the same thing, through trial. I think it's helpful particularly as someone who does a lot of settlements, right? It's always just more productive at a settlement conference when you can say to the litigants, look, if we don't settle, this is what we know we have coming because we have the data, and what I find difficult is when I am referred cases where there is no schedule, not from these two sitting next to me. But anyway, but I do set it all the way through, and with class actions, it depends. If the parties request only through class certification, then I'll do that, but sometimes I don't, and then I'll do it all the way through just to keep it—again, keep the case moving.

JUDGE CHHABRIA: My practice is similar. For non-class cases, I will generally set the trial schedule shortly after that Rule 26 conference. For class cases, I do set those through class certifications because the outcome of that motion can really dictate the path of the case and how long the trial would take and all those...