Anupama Reddy and Joshua Davis Featured on Diversity and Class Certification Panels at American Antitrust Institute’s Annual Private Antitrust Enforcement Conference

What is the status of diversity in the plaintiffs’ antitrust bar, and what improvements can be made? How are recent legal developments affecting the composition of classes and the class certification process in antitrust cases?

Joseph Saveri Law Firm associate Anupama Reddy and of counsel Joshua Davis participated in discussions on these issues at the American Antitrust Institute’s 15th annual Private Antitrust Enforcement Conference, held in person and virtually on November 10, 2021, at the National Press Club Ballroom in Washington, D.C. The conference featured a series of panel discussions on timely and threshold topics, with participation from experts and thought leaders from across the antitrust community, including enforcement, advocacy, and academia. 

Anu was a co-panelist at the conference’s first discussion: "Antitrust and Diversity, Equity, and Inclusion in the Plaintiffs’ Antitrust Bar." The question of who is prosecuting antitrust violations can impact both the types of violations being prosecuted and the outcomes of those prosecutions. In multidistrict litigation (MDL) leadership appointments, only about 9% of appointments between 2016 to 2019 went to attorneys of color and men were five times more likely to be appointed to MDL leadership positions than women. The panel explored the state of diversity, equity, and inclusion in the plaintiffs’ antitrust bar, how we can support more attorneys from diverse backgrounds within our practices, and whether antitrust enforcement can be used as a tool for combating systemic racism and sexism.

Just as in overall society, diversity has recently become front and center in the legal community. As Anu noted, embracing diversity is becoming a business imperative. Some courts in their leadership selections are insisting on diverse legal teams to mirror the classes they represent. And studies indicate that increased diversity leads to better work results and employee and client satisfaction.

Anu spoke about the lack of role models for many women and minority attorneys at their firms, in conferences, or at trial. This underrepresentation consequently can lead to “imposter syndrome,” in which these attorneys come to believe that they don’t belong in or are not qualified to handle their litigation roles. This internalized bias can make it difficult to differentiate the actual treatment received from colleagues from their own internal critical voices. Anu admitted sometimes falling prey to this thinking, describing it as “At times I have felt like I have had a balloon tied to my wrist that is following me.” She credited her fellow firm attorneys and management structure with helping her through this difficulty by encouraging her and giving her opportunities to take on challenges and succeed.

Anu also spoke about how the way firms view diversity can sometimes be too narrow. Firms have a temptation to put women or minority attorneys in important work but not in the spotlight. The firm bucked this trend, she said, by making diversity leadership a priority, supporting its associates, and being “willing to fail” if results did not go perfectly.

How can women and minority attorneys navigate underrepresentation and the problems associated with it? Anu offered the following advice:

  • Firms should discuss, formalize, and commit to their diversity policies so that objectives are targeted and met.
  • Whether working in the office or remotely, attorneys should attend hearings and conferences as much as possible to gain a sense of inclusivity and develop relationships.
  • Attorneys at all stages of their careers should join legal national, state, and local legal associations, which prove to be great resources for networking and sharing of experiences. Even for law students, this is a useful practice and can assist when graduation arrives and it's time to “sit at the adults’ table.”
  • Don’t be afraid to be less than perfect. Lawyers and the firms they work for can often be afraid to take chances, always waiting for the “perfect” moment or the “perfect” candidate to move into the limelight. Build relationships and a culture where it is ok to be a little less than perfect.
  • Seek out mentors to help you with your career development. Build relationships with people inside and outside your firm. By doing so, “mentoring” often becomes an organic experience rather than a formal, forced one.

Moderator: Lin Y. Chan (partner, Lieff Cabraser Heimann & Bernstein, LLP)
Panelists: The Hon. Cynthia M. Rufe (Eastern District of Pennsylvania), Heidi M. Silton (partner, Lockridge Grindal Nauen P.L.L.P.), and Anupama Reddy (associate, The Joseph Saveri Law Firm. In 2020, Anu was named as an Honoree by AAI for its Antitrust Enforcement Awards for Outstanding Antitrust Litigation Achievement by a Young Lawyer.)

Josh moderated the conference’s second discussion: "Class Certification in Antitrust Cases: All or Nearly All?" The recent oral argument before the Ninth Circuit en banc in Olean Wholesale Grocery Co-op Inc v. Bumble Bee Foods LLC raised a series of issues with which courts, counsel, and commentators have long struggled. One of them is whether the Rule 23(b)(3) predominance requirement places a limit on the percentage of uninjured members a class can contain. Another is whether a court must resolve disputes between plaintiffs’ and defendants’ experts about the percentage of class members that is uninjured. Yet another is the burden of proof on plaintiffs at class certification in regard to the percentage of class members that is uninjured. These same issues also potentially arise in regard to Article III standing. The panel discussed these doctrinal issues as well as the econometrics on which experts typically rely in dealing with them.

Moderator: Joshua Davis (of counsel, The Joseph Saveri Law Firm)
Panelists: Caitlin G. Coslett (shareholder, Berger Montague PC), Jennifer L. Giordano (partner, Latham & Watkins, LLP), and Jamie McClave Baldwin (president, Infotech Consulting)