August 29, 2013
After nearly six years of litigation, five amended complaints, and several rounds of dispositive motion practice, the Weil team secured summary judgment in THL’s favor. The result is truly remarkable as the Weil team succeeded in persuading Senior District Judge Edward Harrington of the U.S. District Court for the District of Massachusetts to reverse himself after he twice denied summary judgment in THL’s favor, including in response to a motion that THL had just filed in April of this year.
This action was commenced in December 2007 on behalf of a putative class consisting of all shareholders that sold securities in 27 of the largest buyout transactions that occurred during 2003 – 2007, including 19 multi-billion dollar leveraged buyouts (LBOs) of public companies and 8 multi-billion dollar buyouts of private companies. The complaint generally alleged that THL, together with 11 of the other largest private equity firms in the world and several of the world’s largest investment banks, formed bidding “clubs” and conspired to allocate the market for, and to artificially fix the share prices paid to shareholders in, each of these multi-billion dollar “club” buyouts in violation of § 1 of the Sherman Act. The plaintiffs thus sought to hold THL and each of the other defendants jointly and severally liable for billions of dollars in damages - even before trebling, which the plaintiffs claimed they were entitled to under the antitrust laws - on the theory that the amounts paid to shareholders in the buyouts at issue had been artificially depressed.
Through two earlier summary judgment motions, the Weil team and counsel for THL’s co-defendants were able to successfully narrow the scope of the alleged conspiracy from 27 deals to only 8 proprietary LBOs. However, in July 2013, Judge Harrington denied THL’s motion for summary judgment on the remaining 8 deals. Yet on August 29, 2013, Judge Harrington granted THL’s reconsideration motion, accepting Weil’s argument that, after a careful review of the evidentiary record that had been created during the litigation, there is absolutely no evidence that “tends to exclude the possibility” that THL acted independently in each of the remaining LBOs at issue - something which is required in order to allow the case to go to a jury under the controlling legal standard articulated by the US Supreme Court in Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).
The Weil team included New York partners David Fertig and Eric Hochstadt and associates Reed Collins, Alison Bain-Lucey, and Luna Ngan. A number of other current and former Weil attorneys and staff also made important contributions on this case over the years, including New York retired partner Alan Weinschel, Boston partner Patrick O’Toole, and New York associates Kevin Meade, Melissa Whitney, and Joseph Adamson.
This news appeared in the following outlets (may require registration/subscription):
- Law360: PE Firm Thomas H. Lee Escapes LBO Antitrust Suit (August 30, 2013)