A: Given the high stakes in antitrust class actions, in which plaintiffs are entitled to treble damages, we need better and somewhat tighter rules regarding who has standing to sue. Under federal antitrust laws, only direct purchasers have such standing. Many states, however, allow indirect purchasers, including retail customers, to sue. That creates a kind of double jeopardy: Defendants face exposure in paying twice for the same alleged offense — which means, in effect, sextuple damages. I am not suggesting that indirect purchasers should never have standing to sue for antitrust. But there ought to be some way of ensuring that only truly injured parties are allowed to recover.
A: Antitrust amnesty is an extremely important tool for prosecutors and resource for individuals and companies in the crosshairs of antitrust litigation and prosecution. The policy offers amnesty to the first member of an antitrust conspiracy that admits its conduct and fully cooperates with federal investigators. Only one grant is allowed per conspiracy, so you have to be "first one in." A successful applicant not only avoids prosecution but also gains, as a result of the Antitrust Criminal Penalties Enforcement and Reform Act of 2004, substantial benefits in civil litigation. Specifically, if the amnesty recipient cooperates with plaintiffs in class action litigation, it is only responsible for single damages, not treble, and is not jointly and severally liable, as are other antitrust defendants.
The program has been tremendously successful for antitrust regulators, and I have used it to advantage on behalf of a number of clients.
A: Bob Swift of Kohn Swift and Graf, who was counsel for the plaintiffs in the Lysine class action in which I represented the Korean defendants, is not only a master of complex civil litigation but a pioneer in human rights and civil liberties litigation. He has successfully pursued cases against the Marcos family that ruled the Philippines and their financial service providers, and he was our co-counsel in litigation on behalf of Holocaust victims and their families against European, financial and insurance companies, and companies that used slave and forced labor in World War II. We settled the various cases for close to $6 billion, getting substantial restitution to Holocaust survivors and to their families.
A: I am very glad that I began my career in the Antitrust Division of the U.S. Department of Justice in Washington, D.C., which I entered upon graduation from Fordham Law School via a very competitive honors program. I took to antitrust from the start, and the Justice Department was a great proving ground. My work in that division focused on criminal prosecutions and provided relatively scant experience in depositions and trials, however. When I entered private practice, in retrospect, it would have been wise to get more quickly immersed in antitrust trial work, managing complex civil litigations from start to finish. Antitrust litigation is often a marathon; before current rules limited depositions to seven hours, they could go on for a week. My capabilities on that front evolved, and they evolved well. But that process could have happened more quickly. I learned over time that there is no substitute for actual participation in trial.
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