November 19, 2018 / 6:40 PM / 7 months ago

Women litigators star in briefs to lead blockbuster ad sales antitrust case

(Reuters) - I was planning to write today about the competition for appointment to lead consolidated price-fixing litigation against companies in control of local television stations, including Sinclair Broadcast Group, Tribune Media, Gray Television and Hearst Television. This is a hot case. Six local television station owners, as you may recall, reached a settlement last week with the Justice Department to resolve allegations that they unlawfully shared information that allowed competitors to predict one another’s spot advertising prices. So, naturally, the private antitrust bar is pretty excited about its prospects in consolidated nationwide litigation before U.S. District Judge Virginia Kendall of Chicago.

Among the firms that submitted briefs asking to be appointed lead counsel in the TV ad sales MDL: Susman Godfrey, Hausfeld, Robbins Geller Rudman & Dowd, Scott & Scott, Joseph Saveri Law Firm, Robins Kaplan, Kaplan Fox & Kilsheimer, DiCello Levitt & Casey and Labaton Sucharow. These are antitrust powerhouses that have won many billions of dollars in settlements with an array of price-fixing or monopolist defendants.

Like I said, I was primed to talk about the firms’ various arguments for why they were better positioned than competitors to be in charge of the case. But as I read the their briefs, I noticed something I haven’t seen before in a lead counsel fight. Firm after firm emphasized that women would be heading the case if they were appointed lead counsel. And that felt like bigger news than plaintiffs’ lawyers battling to lead what is shaping up to be a big case.

Susman Godfrey, for instance, said its team would be led by Kalpana Srinivasan, who’s currently one of the coleads in a huge consolidated antitrust case against Qualcomm (and, in a previous life, was an AP reporter). Labaton, which is bidding to be colead alongside DiCello Levitt, pledged that Karin Garvey, a former defense lawyer, would head its team.

Hausfeld, Robins Kaplan and Kessler Topaz Meltzer & Check submitted a joint bid for lead counsel. All three firms said women would be leading their teams: Megan Jones of Hausfeld, Hollis Salzman of Robins Kaplan and Kimberly Justice of Kessler Topaz. The firms said they’d also engaged Chicago litigation counsel from Scharf Banks Marmor to work up the case for trial. Leading the Scharf Banks team would be Stephanie Scharf.

Kaplan Fox & Kilsheimer proposed that it be named lead counsel specifically to represent advertising agencies that purchase ad spots from local television stations on behalf of their clients. (The firm’s brief posits that many ad agencies purchase time slots for their clients, local TV advertisers, and bill clients for the cost of the ad slot plus a markup.) Kaplan Fox argued that advertisers may argue that they, rather than ad agencies, were direct purchasers so the ad agencies need their own counsel in whatever leadership structure Judge Kendall creates. The Kaplan team would be led by Elana Katcher.

Not every firm bidding for lead counsel has proposed a woman to head its team, but almost every firm’s brief specifies that a woman will be part of its leadership structure. Robbins Geller and Scott & Scott’s joint lead counsel brief, for instance, pledged that Alexandra Bernay, Kristen Anderson and Amanda Lawrence will be part of the firms’ “core leadership teams.” The Saveri firm told Judge Kendall that Jiamie Chen and Kyla Gibboney would be on the case. Gustafson Gluek named Michelle Looby and Brittany Resch.

I don’t know what accounts for the emphasis on women in the TV ad sales lead counsel briefs. Neither Judge Kendall nor the Northern District of Illinois seems to have a standing order calling on prospective lead counsel to demonstrate the diversity of their teams. I left phone and email messages for Judge Kendall’s courtroom deputy to see if the judge has an informal policy of emphasizing diversity but didn’t hear back. I also reached out to several of the women proposed to lead the case – Srinivasan, Jones, Salzman & Katcher – but didn’t hear back.

Of course, we all hope for the day when it will be entirely unremarkable for a woman to be appointed to lead a big multidistrict litigation. Unfortunately, we are not at that moment in history. But the lead counsel briefs in the TV ad sales case indicate we’re getting closer.

Defendants, I should point out, maintain this case won’t survive their eventual dismissal motion. They argued in a joint status report filed Friday that the DOJ settlements with some of the defendants only confirm the weakness of the plaintiffs’ price-fixing allegations. “The DOJ took no testimony, the settlements … were without any admissions of fault or wrongdoing and no penalties were sought or imposed,” the status report said. “There are no allegations (by the Justice Department) much less concessions of any sort of improper pricing conduct.”

The defendants are represented by Paul Weiss Rifkind Wharton & Garrison, Shearman & Sterling, MoloLamken, Scandaglia Ryan, Kirkland & Ellis, Cravath Swaine & Moore, Jenner & Block and Cooley. For what it’s worth, only two of the 12 defense lawyers who signed the status report are women: Julie North of Cravath and Rachel Morse of Jenner.

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