The Contingency

Insights on Sharing the Risks and Rewards of High-Stakes Business Disputes

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Today, United States District Judge Naomi Reice Buchwald in Manhattan issued LIBOR VII, in which the court granted class certification under Rule 23(b)(3) to a class of plaintiffs who bought over-the-counter instruments that paid interest in terms of the London Interbank Offered Rate (LIBOR) and who allege that LIBOR-setting banks conspired to suppress LIBOR during the 2007-09 financial crisis. The court declined to certify the OTC plaintiffs’ state-law claims or any claims by two other…
  This coming Thursday, I’ll give a talk about Preparing Difficult Witnesses for Trial at the University of Texas law school Civil Litigation Conference in Austin. My series of posts on the subject ends with this one — and it’s the best one of them all, in my view.…
In this penultimate installment of my series on preparing difficult witnesses (DWs) for trial, we get to some of the real nitty-gritty: Learning the story of me, doing a full interview, and then explaining what matters and why. As will become clear, the sequence matters — a lot.…
In Preparing Difficult Witnesses for Trial — Part 1, we looked at the four major types of trial witnesses. We also sketched “some of the more significant ethical considerations that govern your dealings with each category”. We then took “a short and non-exhaustive look at the two major privileges that trial lawyers deal with: the lawyer-client privilege and the lawyer work-product doctrine.” In this post, we’ll cover the necessity for getting really ready and something you…
For your client to win at trial, the trial lawyer in you must tell a human story, one that moves jurors to decide in your client’s favor. Flesh-and-blood witnesses fill essential roles in the drama. So-so ones will turn the story to mush, and bad ones will allow your friend on the other side to beat you and your client about the head and neck with it. Difficult witnesses – DWs – therefore pose a…
U.S. District Judge Mitchell S. Goldberg ruled on August 28, 2017 that a class of 24 to 25 direct purchasers did not satisfy the “numerosity” requirement of Rule 23(a)(1) for class certification. Florence Drug Co. of Florence, Inc. v. Cephalon, Inc., No. 06-c-1797, ECF 1072 (E.D. Pa. Aug. 28, 2017), on remand from In re Modafanil Antitrust Litig., 837 F.3d 238 (3d Cir. 2016). As yours truly noted about the Third Circuit’s remand of the case in “No
Pay-for-delay Listen up, direct purchasers of pharmaceuticals. Since 2013, pay-for-delay antitrust cases against Big Pharma could succeed if they alleged that a brand-name drug company had made “large and unjustified” payments for a competitor to postpone bringing a generic substitute to market. FTC v. Actavis, Inc., 133 S. Ct. 2223, 2237 (2013). But how “large” and how “unjustified” does Actavis require the payments to be? A new decision by the Third Circuit provides a plaintiff-friendly answer, one that allows claimants in…