April 11, 2022
If recent jury verdicts are any indication, companies are facing enormous repercussions when hit with antitrust liability and the damage is not just monetary—it is also reputational. Jury verdicts finding companies liable for antitrust violations often make headline news. For example, in September 2021, a jury awarded over $28 million in damages to BASF—automatically trebled to $84.9 million—after the jury found that Ingevity violated antitrust laws by tying sales of its products to patent licenses. See Ingevity v. BASF, C.A. No. 1:18-1391 (D. Del.). Likewise, in November 2019, a California jury found in favor of Optronic Technologies and awarded it $16.8 million—automatically trebled to $50.4 million—after the jury found a conspiracy to allocate and monopolize the telescope market. See Optronic Techs. v. Ningbo Sunny Elec. Co., C.A. No. 5:16-cv-06370 (N.D. Cal).
The financial implications are not just reflected in jury verdicts. Settlements of antitrust lawsuits have also reached staggering figures. In October 2020, Blue Cross Blue Shield settled an antitrust suit for $2.67 billion. See In re Blue Cross Blue Shield Antitrust Litig., C.A. No. 2:13-20000 (N.D. Ala.). More recently, in March 2022, generic drug company Ranbaxy agreed to pay $485 million to settle antitrust claims levied against it. Suffice to say, antitrust lawsuits can come at major cost to the company’s shareholders, its employees, and its reputation. See In re Ranbaxy Generic Drug Application Antitrust Litig., C.A. No. 19-2878 (D. Mass).
So how can corporate in-house counsel prepare for—and defend—allegations that go to the heart of the company’s business? One of the most critical steps is to identify the right company witnesses and prepare them to testify. In “bet-the-company” disputes, those witnesses should be high-ranking senior executives who can look the jury in the eye and explain the company’s actions. It also signals to the jury that the company is taking the claims seriously and has brought their senior executive to court to tell their story. There is no overstating the impact of this testimony.
Just consider some of the CEOs who have testified in recent antitrust trials. For instance, in 2018, AT&T CEO Randall Stephenson took the stand to describe the company’s history and to walk through the merger of AT&T and Time Warner in the DOJ’s unsuccessful suit challenging the merger. Most recently, in 2021, Apple CEO Tim Cook testified in Epic Games’ antitrust suit and played a critical role in defending Apple’s business practices. The district court opinion (which is on appeal) was largely a victory for Apple, finding that Apple had not engaged in monopolization with its App Store payment system. See Epic Games v. Apple, 2021 WL 4128925 (N.D. Cal. Sept. 10, 2021).
Identifying the Right Executive To Testify
Not every senior executive or CEO, however, will play well with a jury. When considering who should testify, counsel should identify an executive who will do well on the stand. The executive needs to be relatable, personable, humble, and must be able to explain—in simple terms and in their own words—the company’s business decisions. They will also need to be able to withstand rigorous cross-examination. Arrogance, obstructionism, or lack of cooperation will generally be viewed unfavorably by a jury. In selecting other executive-level witnesses to testify, it is also important to consider diversity. Juries are seldom made up of individuals of the same race or socioeconomic background and the company’s witnesses should reflect that reality.
Advancing the Narrative
A CEO’s testimony is important in several respects. First, the CEO serves as the face of the corporate defendant and can describe when the company was founded, what it does, its employees, and its contributions as a corporate citizen. This provides context for the jury and humanizes an otherwise faceless corporation. Second, and most importantly, the CEO can hopefully deny the allegations directly and explain why they would never agree to, or authorize, any conduct that would violate the antitrust laws. A blanket denial by the decision-maker will have a huge impact on the jury. Third, the CEO can explain the pro-consumer business reasons that they engaged in the conduct at issue.
Consider the case of In re Wholesale Grocery Products Antitrust Litigation. In Wholesale, a class of “mom and pop” grocery stores in the Midwest alleged that C&S Wholesale Grocers, a grocery wholesaler and one of the largest family-owned private companies in the United States, conspired with its competitor to allocate the market and not compete for certain business in the Midwest. See In re Wholesale Grocery Products Antitrust Litig., C.A. No. 09 md-2090 (D. Minn.). C&S’s CEO and Chairman testified and provided important context to the jury about his business. He explained that C&S was started by his grandfather and that he is the third-generation in his family to run the business. The CEO unequivocally denied that he would ever agree to allocate the market or otherwise enter into a conspiracy because he would never put his family’s business at risk. He described how C&S grew into one of the two largest grocery wholesalers in the country—not by agreeing not to compete—but by competing fiercely for business, and that the plaintiffs’ allegations were the antithesis of the company’s ethos. He explained C&S’s reasons for selling parts of the Midwest business to its competitor and why the parties entered into a limited non-compete after the sale. His testimony was buttressed by the testimony of other senior executives, who described C&S’s efforts to compete in the Midwest following the non-compete and explained the details around the transaction with its competitors. The jury returned a complete defense verdict in a matter of hours.
A CEO’s testimony can also go a long way in avoiding trial. In Klein v. Bain Capital Partners, shareholders of companies acquired by private equity funds filed suit against several marquee private equity firms alleging that they agreed not to outbid each other on announced buyout deals. The Co-Presidents of Thomas H. Lee Partners, one of the defendants, testified unequivocally that they did not enter into any agreement to not outbid competitors and would never authorize such an agreement. The district court granted a summary judgment dismissal. See Dahl v. Bain Capital Partners, 963 F. Supp. 2d 38, 53-55 (D. Mass. 2013).
Preparing the CEO
It is important to prepare your CEO early and more than once. It is imperative to walk through each of the key documents in preparation sessions and explain the documents’ relevance and the key parts that will be focused on during the CEO’s testimony and cross. Counsel should take the time to walk through each sensitive document and explain how opposing counsel might use this document to establish liability. You do not want your CEO to be surprised on the stand or to offer knee jerk reactions to tough questions. Jurors also will expect the CEO to generally know the facts as his or her credibility can easily be undermined with too many “I don’t knows.” Trial counsel should also conduct a mock cross of your CEO to show the types of questions that might be asked, and the tenor and pace of the examination.
You will need to ensure your CEO has the appropriate demeanor during direct and cross-examination because the jury will not take kindly to witnesses who appear evasive or obstructionist. The deposition video of Bill Gates is a notorious example of a CEO coming across uncooperative and evasive. Trial counsel should consider playing portions of the CEO’s deposition to a mock jury to gauge their reaction and to help counsel best prepare the CEO to testify at trial.
In preparation sessions, counsel should also take time to describe trial basics. Most, if not all, witnesses have no experience testifying in a courtroom. Your CEO is no different and it is important to set the stage for them. Counsel should explain where the witness will sit, where the judge and jury will be, and who will be in the courtroom—all of this information will help situate your CEO and make them more comfortable.
Finally, prepare your CEO for the optics. They should come to court in a suit and wear items that are non-descript. Executives arriving to court dressed in an expensive suit with a Rolex watch will hardly play well with a jury. Your CEO should be as comfortable and confident in the courtroom as he or she is in the boardroom, so that he or she can provide clear and effective testimony to the jury.
In high stake bet-the-company litigation, there is no better witness to humanize and explain the actions of the company than your CEO. With proper preparation, they and other senior level executives will advance the narrative with the jury in hopes of securing a successful outcome.
Reprinted with permission from the April 11, 2022 edition of Corporate Counsel© 2022 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 - firstname.lastname@example.org