A Memorable Antitrust Case
Dallas, TX trial attorney Warren Burns talks about an important antitrust case he took on.
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Antitrust work has been a part of my practice from really my first days as a baby lawyer. It’s an area that I think is very important. And one that I have been lucky enough to see some of the best lawyers in the country practice in and to be a part of cases that have really been important for communities and our country and have moved this area of the law forward. Currently, we probably have – well, it’s hard to say. We have a number of very large, very significant class actions that involve antitrust allegations of one sort or another: monopolization and price-fixing claims. They all have their different interesting aspects and the things that make those cases unique. Now, when I look at antitrust cases and the reason why I’m so interested in them personally, as a lawyer, is that it gives you an opportunity to go out and learn an industry. Put yourself in the shoes of the businessmen and women who operate in that industry and grow at night. I think about a case I had very early on in my career that involved the concrete industry in Indianapolis, Indiana. Concrete cases have actually developed – or contributed significantly to antitrust law over the years. Tends to be a lot of competition violations in that particular industry. And this was certainly true here.
It was a classic price-fixing conspiracy. Had some unique edges to it in that the allegations were that there were caps on discounts as opposed to – or limits on the types of discounts the competitors could make in the industry. But, once you dig in to any industry, and particularly the concrete industry in this case, you realize that was the price. The difficulty is conveying that to a jury or to a judge to help them understand how the industry and how its dynamics work. But in that case, we had five or six defendants. Many had pleaded guilty already to the federal government for their participation in this conspiracy. We had one who had not but ultimately, we were able to resolve the case with him.
But as a young lawyer coming up, I got to learn some very important skills. One, again, is to throw yourself in. And you’ve got to learn the industry. You’ve got to learn what drives it. You’ve got to learn if you are a concrete manager who’s setting the price for a job, how you’re going to do that. What are the elements? What are the constituent elements of the product that you’re selling? All of these things are incredibly important, particularly in antitrust cases, which are so driven by just the economic transactions in issue. Now, in that case, we were able to do something that was pretty remarkable for any case. We achieved settlements that exceeded that actual damages that our clients suffered in that case. Antitrust cases have the great advantage of the threat of treble damages if you’re able to go through trial and succeed at trial. Then, the court has to, as a matter of law, triple the damage award that the jury will award.
For folks who have participated in a conspiracy and know that they’re on the hook for damages going forward, it’s an effective hammer to have to force them to come to the table and deal with the people who are the victims of their conspiracy. In that case, we were able to get, again, over 100 percent of the damages that our client suffered as a result of that price-fixing conspiracy. It was a great case.
I’ll tell you another anecdote of that case was as a young lawyer, I’d taken probably hundreds of depositions by that point. But I’d never taken a deposition in prison. In this case, we had several of the defendants or their officers who were in jail for this price-fixing conspiracy. So, I remember one day – I think the deposition started on Martin Luther King Day – showing up in Terre Haute, Indiana at the federal penitentiary there. There were so many defense lawyers that we had to set it up in the cafeteria at the federal penitentiary. It was almost like a Roman amphitheater.
I was the one taking questions of this defendant. So, I was sitting right across from him. He was sitting at a table next to a wall. Behind me in a semicircular pattern were about 25 or 30 defense lawyers who would object to practically every question. It was kind of like pops going off all over the background. But, it was an important deposition. We got what we needed out of it. Really defined the conspiracy and who was involved. Within months of that deposition, we were able to resolve the case.