Industry In-House Counsel Meetings May Be Evidence of Antitrust Violation

Posted on February 21, 2012 by Grace Healy

Every in-house lawyer planning on meeting -- or attending seminars -- with other counsel in his or her industry should carefully review last week’s decision by Judge Pauley in the In re Currency Conversion Fee Antitrust Litigation (Ross v. Bank of America) litigation. The decision reviews the meetings of counsel and finds that they raise questions of fact requiring trial of an antitrust conspiracy claim.  Among the topics discussed by counsel were arbitration clauses and avoidance of class action law suit abuse.

This decision might be a wake up call to lawyers going to any meetings with other counsel in their industries, including meetings or seminars that are firm/vendor sponsored.   Given this decision, it might be prudent to have an antitrust monitor and to read an antitrust caution at legal meetings and seminars.
 

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First Department Decision Adopts Requirement for Preservation of Electronic Evidence When a Party "Reasonably Anticipates Litigation"

Posted on February 1, 2012 by Grace Healy

Yesterday, the First Department issued a decision in VOOM HD Holdings v. EchoStar Satellite that is must reading for any potential litigant. The court adopted the federal “Zubulake” standard that “once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a litigation hold to ensure preservation of relevant documents.” Litigation is reasonably anticipated when an organization is "on notice of a credible probability that will become involved in litigation, seriously contemplates initiating litigation, or when it takes specific actions to commence litigation."

Because of defendant’s purported failure to preserve electronic data when litigation was anticipated, and its failure to halt email purges after litigation was started, and its prior issues with destruction of electronic evidence, the decision also discusses the standards for spoliation of evidence and sanctions.  The court was not impressed with defendant's argument that it was seeking an amicable business solution so there was no reasonable anticipation of litigation.

The bottom line is that defendant will be subject to an adverse inference -- the a jury will be charged to presume the relevance of the evidence that is not available.   In addition, the defendant will return to a judge who has already determined that it is grossly negligent in its management of litigation.
 

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