Joseph Saveri is the founding partner of The Joseph Saveri Law Firm, the successful San Francisco-based law firm specializing in plaintiffs antitrust and class action litigation. He recently took time to answer questions about the status of settlements and trial regarding In re Capacitors Antitrust Litigation.
Q. What is the case about?
Joe: The Court appointed our Firm as Lead Counsel for a Class of direct purchasers of capacitors. Capacitors are used in the great majority of electronic devices and products. As Plaintiffs allege, Defendants formed a cartel and conspired to fix, raise, and stabilize prices in the multi-billion-dollar market for aluminum, tantalum, and film capacitors. Capacitors are placed in electric circuits contained in nearly every electronic device you use, including computers, DVD players, car engines, and the like. We filed the first case challenging this conduct. We alleged that the price-fixing scheme began as early as 2002.
Due to shelter-in-place measures, all of us are increasingly reliant on technology and electronics. Now more than ever, we cannot afford to have our access interfered with by business collusion. Collusion raises prices and limits supply. Price-fixing, like other anticompetitive behavior, causes serious damage to the economy, including to consumers. In our suit, we seek damages and other relief for these unlawful overcharges. Enforcing antitrust law through private litigation is a core purpose and goal of our Firm.
Q. What has happened in the case to date?
Joe: Since 2014, when we started the case, there were years of motion practice and discovery. The Court denied Defendants’ motions to dismiss. The Class was certified, and we defended that in the Ninth Circuit. In March 2020, we began the jury trial. After two weeks, and after most of our evidence was put in, the case was halted by the coronavirus. The Court declared a mistrial.
Settlements totaling $439.55 million have taken place against various Defendants over the past two to three years. Distribution of these funds is ongoing.
Also, to date eight capacitors manufacturers and two of their individual executives have pleaded guilty and been sentenced for violating federal antitrust laws following their plea agreements with the DOJ. Additional executives remain under indictment.
Q. Why and how did the trial end?
Joe: Like all aspects of our lives, the trial was impacted by the coronavirus and our need to shelter in place, especially as directed by San Francisco Bay Area officials. Our team was preparing to wind up the presentation of the case when the Court notified the parties on Saturday, March 14, that on the following Monday they should appear to discuss suspending the trial as the coronavirus news grew more ominous. We had been hearing rumblings about this, so the Court’s notification came as no surprise. On that Monday, the Court sent the jury home and limited courtroom attendance to lawyers and clerks. Then it shut down the trial. We gathered our trial materials at that point and left, awaiting further guidance from the Court as to how to proceed next.
Q. What was the trial’s status when it was suspended?
Joe: Two weeks of trial had been completed, with roughly another week of activity left to finish, including closing arguments. The proceedings were going favorably for the Class. Also, while trial was going on, right up through the last minute, we were negotiating with Defendants, hammering out settlements with all but two of the remaining Defendants.
Q. Why didn’t the Court just resume the trial a few weeks or months later?
Joe: We conferred with Defendants to see if we could mutually agree as to how to proceed. However, that proved unworkable. Defendants asked the Court to declare a mistrial and commence with a new trial and jury. We advocated for resuming the trial, if safely possible, in the interests of judicial efficiency and out of respect to the jury, which had served diligently and deserved a chance to render a verdict. The Court sided with our position, but only if a requisite number of jurors could be empaneled to resume. Due to scheduling and safety concerns among the jury, this was not possible. On June 4, the Court released the jury, declared a mistrial, and indicated a new trial would be held later in the year.
Q. Will the new trial take place this year or next, and how?
Joe: At this point, it’s impossible to say when the new trial will begin. If this year, it would be near the end of the year.
So far, there have been very few jury trials conducted since the onset of the pandemic. It is unclear whether we will be one of the first or we will be delayed while other cases go ahead. I would like to see if we can go forward.
Once we go forward, we will be traveling in uncharted territory. Will the trial be held in person or digitally? If in person, who will be present? The Court will need to determine arrangements for safety and social distancing, which would have to line up with state and local ordinances. And, even setting aside how to run the trial in person or by video, there are hurdles to overcome. For instance, there are Japanese officials who need to be deposed, and if the trial were held in person, perhaps they would testify at trial. Perhaps the testimony will have to be conducted at a U.S. embassy or consulate in Japan, or in another country.
Even the techniques for examining witnesses will be different, if done by video. It’s more difficult to read body language and “the temperature of the room” when everyone is participating remotely. And, of course, screen backgrounds, if not done properly, can tell a story you would not want to tell. You can’t examine someone from your kitchen table, with your kids getting involved or a dog barking in the background. Everyone probably has a videoconference horror story to tell by now. Much of the testimony was in Japanese too, so we will have to figure out how to handle translations. Still, we have been quickly mastering the tricks of the new trade and are confident we can use them to our advantage whenever trial is green-lighted (or green-screened).
Q. How will Plaintiffs prepare for the trial?
Joe: There’s no “How to Try an Antitrust Case During a Pandemic” blueprint to follow. However, by the end of the year, our Court and courts around the country will have more guidance to follow from the collective activities by the nationwide legal community, in which we are all learning as we go along.
More importantly, we have our successful trial experience from just a few months ago to draw from. All members of our trial team are available and are prepared to work with passion and commitment to ensure that the new trial goes as smoothly as the first one. Much of our trial preparation can be used and refined for the next trial. And we have a unique chance to take a second look at every aspect of our approach and fine-tune it even more. This is an exciting challenge for us, and I welcome it. I’m optimistic, and I think the Class should be as well. This has always been a case of tremendous economic, financial, and regulatory importance, and for which we now have the opportunity to write a successful final chapter, all while navigating it through the Court’s early stages of “the new normal.” Our Firm is honored and excited to represent the Class in such an important and significant case.
Q. What is the current settlement status?
Joe: Our settlements to date—totaling $439.55 million—represent years of work prosecuting the cases and the product of hard-fought litigation and extensive negotiation. Phase 1 settlements against various Defendants for $32.6 million in cash and secure agreements have been fully distributed. Phase 2 and 3 settlements against various Defendants for $66.9 million and $108 million, respectively, have been approved by the Court and distribution is pending. Additional settlements against several Defendants for about $232 million were reached in the weeks leading up to, on the eve of, and during trial. The paperwork for these settlements has been filed with the Court, which granted final approval on September 17.
Q. What are the conditions for the new trial and future settlements?
Joe: There are two remaining Defendants: Nippon Chemi-Con Corp. and Matsuo Electric Co.
In the interim, we are preparing for the new trial, which will likely be of similar duration, with most of the same facts and witnesses being presented as before. Witnesses will be bound by prior testimony, and we will be vigilant in making sure Defendants stick to their previous evidence, and call them out if they fail to comply. Naturally, variations from the previous trial will occur, and we will be prepared for those moments when they arise.
Q. How can I keep track of the trial and settlement progress to date?
Joe: The Class and interested persons have several options to choose from. First and foremost is the In Re Capacitors Antitrust Litigation settlement website. Also, for case background and updates, you can consult our Firm’s Capacitors case page. If those sources are not sufficient to answer your particular questions, you may also contact our Firm. Also, once the trial commences, the Court may post some of the proceedings on its website, as it did with this past spring’s trial.