April 27, 2018
Litigation Department Co-Chair David Lender and Antitrust Litigation partner Eric Hochstadt have been named “Litigators of the Week” by both The AmLaw Litigation Daily and Global Competition Review for securing a complete defense jury verdict for C&S Wholesale Grocers following nine days of trial in an antitrust class action in Minnesota federal court.
In 2016, C&S retained Weil as lead trial counsel after the court granted certification of classes comprising more than 300 retail grocers. Plaintiffs, which were represented by class counsel led by Boies Schiller, alleged that New England-based C&S and Supervalu, another leading wholesaler based in the Midwest, entered into a conspiracy to allocate the New England and Midwest territories between themselves for a period of five years, resulting in inflated grocery prices. The other defendant settled before trial. In October 2017, Weil succeeded in excluding significant portions of plaintiffs’ expert’s testimony, reducing potential alleged single damages of $226 million by more than $90 million.
The trial commenced on April 9, 2018, and on Thursday, April 19, 2018, after less than an hour of deliberations, the jury returned a complete defense verdict for Weil’s client, finding no conspiracy. In addition to Mr. Lender and Mr. Hochstadt, the Weil team included associates Kaj Rozga, Luna Barrington, Erin James, David Leslie and David Fitzmaurice.
The article published by The AmLaw Litigation Daily explains that Weil was brought in to the case as lead trial counsel more than seven years after it was filed, noting that the Weil team had the advantage of fresh eyes to look at the case, which had a “tortured” past. Mr. Lender commented, “We’re going to look at things slightly differently than the people that had been here before us.”
The article goes on to explain the Weil team’s successful strategy to narrow the scope of their defense to three separate yet related themes that they intended to focus on at trial: that there was no secret pact, no price inflation in the relevant markets and no injury to the five classes of plaintiffs pressing their claims. The article also highlights Weil’s strategic and successful use of several witnesses, including the company’s chairman, as well as an economic expert to distill complex theories of economics and competition into simple terms that the jury could understand. Mr. Hochstadt commented, “We needed real people to connect with the jury, who don’t have experience in this industry.”
Mr. Lender credited the Weil team’s success in part to its aggressive strategy of employing quick redirects to expose significant omissions in plaintiffs’ lines of questioning, and also explained that credibility with the jury was a major factor in the case. He commented, “Jury trials are all about credibility at the end of the day. I think we were gaining credibility points throughout the trial.”
In the article published by Global Competition Review, Mr. Lender commented on the “unicorn” nature of the case, saying “It’s rare for class actions to go to trial, rare for antitrust cases to go to trial, but for antitrust class actions to go to trial?”
The article highlighted that Mr. Lender and Mr. Hochstadt led the Weil team that conducted the trial entirely on its own, with behind-the-scenes support from C&S’s other counsel at Baker Botts and Fredrikson & Byron. The article also reported on Weil’s success in using analogies the jury could understand and the importance of C&S’s economic experts to securing the victory. Mr. Hochstadt commented on the role of C&S’s economic expert Kenneth Elzinga, a longtime University of Virginia antitrust professor. “He was our last witness in the case. It’s like he was teaching the jury Antitrust 101.”
Mr. Lender and Mr. Hochstadt are the first to receive this award from Global Competition Review in 2018 and represent the third instance of this award being given in the past year.