The Second Circuit has invalidated a $7.25 billion antitrust settlement between Visa and MasterCard relating to interchange fees. A June 30 Law360 article (subscription) sees this as a “powerful signal” that class reps must be extremely careful about seeking case resolutions that might “[compromise] someone else’s fundamentally conflicting interests.”
The 2nd Circuit Court of Appeals held that the attorneys who made the deal for the retailers involved in the case had an incentive to favor merchants who’d accepted the relevant card payments in the past over prospective merchants going forward. Commentators observed that the ruling emphasizes the idea that it is critical to look for any inherent intra-class conflicts in such cases, and that doing so might even require having disparate groups of lawyers involved in negotiations for each distinct plaintiff group.
For all that several pundits highlighted the magnitude of the result in the case, Lieff Cabraser partner Dean Harvey advised Law360 that the decision “shouldn’t be seen as likely to lead to a dramatic change in how class actions are settled.” Mr. Harvey indicated that the case was atypical, though he noted the decision was a good starting point for future conversation on ensuring the adequacy of representation in class cases where the membership possessed some variance.
“This decision has already made headlines, and to that extent, maybe it will make the issue more prominent or more salient in the minds of parties and mediators,” Harvey said. “But at the end of the day, I don’t think it increases the importance of the issue.”
About Dean Harvey
A partner in Lieff Cabraser’s San Francisco office, Dean Harvey represents individuals and companies in antitrust, business tort, employment, and intellectual property litigation. His cases seek to remedy and prevent wrongful conduct by dominant firms. These precedent-setting lawsuits concern a wide variety of industries and markets. Remedies include reimbursing purchasers who have overpaid for price-fixed products; preventing monopolists from stifling innovation and eliminating competition; and obtaining damages for businesses, inventors, and copyright owners.
Mr. Harvey was a leader in the High-Tech Antitrust class action against Google, Apple, Intel and other tech giants for allegedly conspiring to suppress the mobility and compensation of their technical employees. This landmark case resulted in the largest recovery (by far) of any class action asserting antitrust claims in the employment context: $435 million. Mr. Harvey continues the fight to ensure that employees receive competitive compensation, currently representing a doctor in a class action alleging an unlawful no-hire agreement between the medical schools of Duke University and the University of North Carolina.