Selecting an Attorney to Commence an RPA Lawsuit

Last Update: October 24, 1999

When someone has plenty of money to spend for an attorney, it is not difficult finding an attorney or law firm. There are many thousands of individual practitioners, small law firms, intermediate-size law firm, and major law firms willing to take on a case, particularly an antitrust case, which is known in the field as THE BIG CASE.

A most important thing for you to know is the type of lawyer you are looking for. Although you would like an antitrust lawyer, that type of lawyer is more difficult to find than 15-20 years ago, because of the nation's shift away from antitrust en forcement and movement to increased concentration of capital and governmental policies favoring multinational companies.

The type of lawyer you need would now be called a commercial litigator, one who handles substantial commercial litigation in the federal courts, and probably does not do any collection work, just in case you thought commercial litigation meant collection work.

The problem for a prospective RPA plaintiff arises when looking for an attorney to work on a contingent-fee basis. There are many reasons why this is becoming more difficult, including the fact that, starting with the administration President Richard Nixon, the U.S. government (including the Justice Department and Federal Trade Commission) have made it clear that their jobs are to help big business expand and even monopolize; all the government agencies have to do is use the right language to make it appear that their inaction is perfectly proper and beneficial for the economy. Thus, the agencies put their blessing on most mergers, or extract inconsequential promises for their blessing (which promises are seldom followed up by the agency or kept by the promising company).

This lack of government desire to enforce the antitrust laws has not gone unnoticed by the nation's federal judiciary, many of whom apparently want to keep in step with prevailing government sentiment. Thus, if the government makes no claim of antitrust violation, many judges are all too happy to pretend that no problem exists. Or at least this is the way it seems to an individual practitioner representing antitrust plaintiff's during the past 25 years.

To say it another way, it is more difficult to win an antitrust suit today than it has ever been, with the possible exception of Robinson-Patman Act litigation by retailers or wholesalers against the manufacturer. The Supreme Court and lower federal courts have placed so many restrictions upon litigants in other types of antitrust litigation that the result is virtually unlimited discretion on the part of the district court judge as to whether he wants to find a violation or not, and when he or she has such discretion, it generally seems to be exercised in favor of the major corporation, major law firms, and prevailing government sentiment against antitrust law enforcement.

There may be the slightest oasis within this vast desert of antitrust abdication by government and the courts, and it seems to be in the area of Robinson-Patman Act litigation. This is so, it seems, because the violations are occurring all over the place (just compare superstore prices with the prices of the small competitors of the superstores), and are quite easy to prove.

Proving the damages of the disfavored retailer or wholesaler is difficult, but this only goes to the dollar amount. By spending more time and money in developing the plaintiff's damages case, the plaintiff will be able to obtain a much higher award (and trebled award).

Many lawyers probably do not understand that RPA litigation is potentially more successful than cases brought under the Sherman Act (such as for unlawful conspiracies to restrain trade, to fix prices, and to monopolize or attempt to monopolize one or more markets, or to make acquisitions which monopolize or threaten to monopolize a market).

Since lawyers may not distinguish between RPA and other types of antitrust litigation, a person seeking a lawyer to commence an antitrust suit under the RPA should be able to discuss the foregoing with the lawyer.

Of course, you want to know how to find a qualified lawyer. One way would be to go into the published decisions to see which lawyers in your area handle antitrust suits. But remember that not all cases wind up with published decisions. Perhaps only one out of 50 or 100 cases wind up with a published decision (and this is just an educated guess). Accordingly, the better bet is to go into the district court clerk's office and ask to review the civil cover sheet which is filed by the plaintiff at the commencement of the action. This sheet tells you what type of case the action is. If you review all of these sheets for a period of 1-4 months, depending on the volume of the particular court, you will undoubtedly identify many of the plaintiff's antitrust lawyers who maintain antitrust litigation in such district court.

Take the names and telephone numbers of such lawyers and give them a call. Also, when talking with any lawyer, ask the lawyer if he/she knows a lawyer who knows antitrust law and may be willing to take a case on a contingency basis.

Perhaps some lawyers throughout the United States will advise RPAmall about their desire to do RPA litigation on a contingent-fee basis. If so, RPAmall will publish their names and addresses free of charge, with a link to any website or home page they may have.

Also, don't forget to communicate with other antitrust plaintiffs, who may have a pretty good idea which antitrust lawyers are available to do contingent-fee RPA litigation.

Also, you should look at the Martindale-Hubbell and West Publishing legal directories, and call your local bar association. Martindale-Hubbell Legal Directory - Overview with Links to Directories - listing 900,000 attorneys and law firms.

To search West's Legal Directory, containing more than one million lawyers and legal professionals see Search West's Legal Directory.

Another possible source for finding a commercial litigator is in the yellow-page listings of your local yellow pages, or even in some legal services classified advertisements in certain types of newspapers or industry publications.

Also, you should consider communicating with the RPAmall editor, attorney Carl E. Person, by telephone 212-307-4444 or by fax, to 212-307-0247. Please do not send e-mail unless you are willing to wait an indeterminate length of time (such as the length of time it takes a judge to render a decision).

Remember, when trying to obtain a lawyer on a contingent-fee basis, that the lawyer is very interested in the merits of the case, which means that you should present some convincing evidence of price or service discrimination (such as failure to offer the same discounts or the same advertising or promotional programs). Also, you should have an idea how much in gross (pre-tax) profits (after deduction of direct costs) your business has lost as a result of the discrimination. Your daily losses times 9,000 is a rough approximation of the amount of your recovery (including trebled damages and the statutory attorneys' fees).

If you show a meritorious case, high damages, and the ability to finance the out-of-pocket expenses of the action, you will have a better chance to find the attorney you are looking for.

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Copyright © 1997, 1999 by Carl E. Person