September 30, 2016 | Lawyer Limelights, Plaintiff Consumer Limelights
A key component in plaintiff-side litigators making the Lawdragon 500 guide is the impact of their cases. In this assessment, it’s hard to top the work done by Steve Berman, a master class-action attorney and the managing partner of Hagens Berman Sobol Shapiro in Seattle.
“It may sound corny, but what first interested me in the law was the chance to right wrongs and change things that needed changing,” says Berman.
The 1980 graduate of the University of Chicago Law School started on the defense side at Jenner & Block, where he had the legendary Jerry Solovy as a mentor. As a plaintiffs’ lawyer, Berman has tallied an impressive amount of record-setting recoveries, including as a lead attorney on the historic Big Tobacco litigation. He has since scored big for injured clients in corporate fraud, antitrust, sports injury and automotive litigation, having served as lead counsel in the Toyota unintended-acceleration action that resulted in a $1.6 billion settlement.
Lawdragon: What do you find professionally satisfying about your practice?
Steve Berman: The most rewarding part of the work my firm does is being able to impact large groups of individuals who have suffered losses. Class actions sometimes get a bad rap for being dime-a-dozen deals that yield very little for the plaintiff, but as we have proven many times and again most recently in the Apple e-books case, when a firm has the determination to live and breathe a case through to the end, great things can happen. In E-books, consumers received twice their losses. That’s what makes this work satisfying.
LD: If you had to choose, what would you say is the most interesting thing you’ve done as a lawyer?
SB: I once traveled incognito in a dugout canoe to meet clients in the rainforest in Ecuador.
LD: What types of matters are you focusing on now?
SB: By and large, our automotive practice area has been the busiest lately, and we are quickly growing this area of our firm in regards to litigating class actions in response to covered-up defects, diesel pollution and other issues of negligence and fraud in the auto industry. The trend has certainly revealed itself: Automakers are acting in blatant disregard to consumers and the law, and the auto industry is wrought with fraudulent behavior.
LD: Talk a little bit about the e-books case if you can.
SB: We recently wrapped up a class-action lawsuit regarding a price-fixing antitrust matter in which Apple and five of the nation’s top publishers illegally raised prices of e-books. The case was hard fought and took years, with Apple refusing to settle until the Supreme Court ruled on the case, bringing the final amount paid to consumers to $400 million – $560 million total including the publishers’ settlements.
LD: What was challenging about this case?
SB: The case was incredibly challenging and was an uphill battle from the beginning. In the e-books antitrust litigation, people probably forget due to the DOJ and state AGs actions that Hagens Berman was the first to bring suit in the United States after months of investigation. After, dozens of plaintiffs’ firms piled on and the government actions were filed about six months later. Even without discovery, our complaint was spot on as to the conspiracy, due to extensive pre-filing analysis. Thereafter, we created an unprecedented partnership with the DOJ and 33 State AGs in jointly prosecuting the case. And having built up mutual respect during months of litigating together in the trenches, we were able to fashion a creative settlement structure with Apple, along with the state AGs. When we began this case in 2012, we knew that the defendants would fight us each step of the way, and the case culminated with the Supreme Court ruling against Apple.
To make this settlement effective and accessible for consumers, our team faced a sizable undertaking that entailed almost constant contact with the retailers to make sure the credits will be applied to consumer accounts across the country. There were many hurdles in this massive case, but it was rewarding in the end.
LD: Can you talk more about the impact of the case?
SB: Clients saw what we believe to be a previously unseen level of repayment. It’s not every day that you suffer a loss when purchasing a product and not only win against the big corporations, but win doubly. It is our hope that the publishing industry and its major players see the results of this case and take them seriously. Antitrust is a very serious realm and comes with great consequences once someone wises up and realizes that the price of their product – e-books in this case – suddenly jumped for no reason.
This case undoubtedly shook this industry more so than your average class action. It’s clear that the five big publishing companies – Simon & Schuster, HarperCollins, Macmillan, Penguin and Hachette – experienced the lawsuits as a catastrophe, and it may have cooled Apple’s iBooks project. With Amazon’s presence in the industry, publishing became very contentious, and it’s clear that to stay afloat, these publishers will have to try more innovative tactics than colluding and forming a price-fixing cartel with their common enemies.
LD: Why did you choose the University of Chicago Law School over other options?
SB: The woman I was in love with went to Chicago, and I followed.
LD: Do you have any special routines before or during a trial or appellate argument?
SB: I make sure I am physically fit and well-rested.
LD: Tell us a little bit about your career path. Why did you decide to start your own firm – how did that come about?
SB: In 1993, there was a severe outbreak of E. coli in Washington state. Young children lost their lives and there were ultimately 171 hospitalized consumers, with more than 700 reports of symptoms, all ultimately linked to Jack in the Box. There was something wrong with the picture, and I knew that the outbreak went deeper than what was on the surface. It was clear to me that Jack in the Box should be held accountable. My prior firm refused to represent several young children who consumed fast food contaminated with E. coli, and so I co-founded Hagens Berman. In that case, we proved that the deadly food poisoning was the result of Jack in the Box’s cost-cutting measures along with gross negligence that systematically led to the deadly outbreak that claimed the lives of four children.
LD: What do you do for fun when you’re outside the office?
SB: Living in the ever-outdoorsy Pacific Northwest lends itself to all kinds of outdoor activities, but I’ve found my niche in the cycling world. I’m on the bike whenever I can be, even with the Seattle rain. You’ll find it parked in my office on a regular basis. The firm also sponsors three cycling teams that I stay involved with, the international Axeon - Hagens Berman U23 cycling team, Hagens Berman | Supermint Pro Cycling women's team and a local HBSC is a cycling team focused on competitive road and cyclocross racing. I’ve also spent a lot of time on the soccer field. I was a high school and college soccer player and coach and now spend many weekends as a certified soccer referee when I am not following my daughter, who is an awesome player, to her games.
LD: If you weren’t a lawyer, what would you be doing now professionally?
SB: I’d probably be coaching soccer.
LD: Do you have a favorite book or movie about the law or justice system?
SB: “A Civil Action” is a prime example of situations where you know a company has done wrong, but the science isn’t admissible yet. Sadly, the law often lags behind science.
Editor's Note: We also profiled Steve Berman in 2012. That article is available here.
Photo by Kevin Casey.
The profile below was originally published on Nov. 12, 2012. Text by Xenia Kobylarz.
Hagens Berman co-founder Steve Berman often refers to his work as a plaintiffs' lawyer as playing David against the Goliaths of corporate America. The work, he says, is not for the faint hearted. And he’s not kidding. Since opening his firm in Seattle in 1993, he has gone to battle in court and won record-breaking settlements against Wall Street, Big Oil, Big Pharma and Big Tobacco.
These days, the veteran trial lawyer has expanded his practice beyond class action to intellectual property litigation, filing cases against tech giants such as Apple Inc., Nintendo and Samsung. He also is co-lead plaintiffs' counsel in class action claims against Toyota over sudden-acceleration problems.
Lawdragon: You have a pretty diverse practice for a plaintiffs’ attorney. In the past few years, you’ve handled antitrust cases, securities cases, consumer cases, ERISA cases and now you’re doing patent cases. How hard is it to shift practice areas or do you consider all cases the same?
Steve Berman: There is a common DNA that connects all of our work. First, we look for plaintiff work that rewards our ability to bring thoughtful, innovative legal approaches to cases coupled with an aggressive, smart approach to litigation. Second, as an organization, we always look for cases that benefit the public good in a meaningful and measurable way, including cases that represent consumers, retirees, investors, inventors, workers and others who ordinarily would not have the resources to challenge large, well-financed entities.
LD: Knowing how to vet cases is critical to the success of all plaintiffs’ firms and so far you’ve had a pretty good run in picking really big cases. Is there a formula to that?
SB: To be successful, you must be willing to invest – invest in recruiting and hiring the sharpest and most intellectually nimble minds in the legal community. Second you need to be willing to invest the time and resources it takes to properly vet and assess very complex cases and legal issues. That includes putting a team of attorneys, researchers and experts on an issue, sometimes for months, before we make a determination that a plaintiff’s case is something we could take on. We also have a deep bench of incredibly talented attorneys that routinely develop innovative legal theories and who are not afraid to apply the law in ways that have not yet been tested in court. Finally, we have a very flat organizational structure – when we’ve decided a plaintiff’s case has merit, we can say yes fast – we don’t wallow in endless committee-meeting approval processes. We’ve been successful in identifying the right cases through a combination of all of these assets.
LD: How did the Apple e-book antitrust case develop?
SB: I am an avid reader and I noticed my eBooks were costing me more. We then did some research and found Steve Jobs' assertion in an interview that prices would be the same across various platforms, including Kindle and iPad. Then, when we saw that several publishers changed their business model at the same time, that raised our eyebrows. We continued to investigate the issue to determine whether there was collusion between Apple and the publishers. We spent a lot of time and resources on this investigation because unlike the Department of Justice we do not have subpoena power. We ultimately concluded that Apple and the publishers were in violation of the antitrust laws and filed a class-action lawsuit on behalf of consumers.
LD: What’s the reason for expanding into patent litigation and do you see any hurdle there in competing with other IP plaintiffs’ firms that have been doing it longer than your firm?
SB: Actually a larger player in the IP field contacted us as they saw a niche in the IP field that traditional firms were not filling. Since most IP firms work both sides of the aisle, it often takes these firms weeks or months to decide if they can accept a case because they are fearful of a conflict. Since we only represent plaintiffs, that is never an issue. Also, since we are an entrepreneurially driven firm, we can work with plaintiffs to find a fee agreement that rewards success, something the more staid IP firms won’t – or can’t – do. So this led us to see a niche for the firm.
We take the same approach for IP that has made us successful in class-action work, using smart, tenacious litigation strategies to represent plaintiffs and apply maximum pressure to defendants. At the same time, our size gives us the bench strength needed to take on big cases over big issues, hiring experts and additional attorneys if necessary.
LD: What’s your most memorable case and why?
SB: First was the landmark tobacco case we brought on behalf of the Attorneys General of thirteen states, which ultimately led to the largest civil settlement of all time. But everyone knows that, so the case I turn to involves the residents of the island of Bougainville in Papua New Guinea who claim that mining company Rio Tinto dumped billions of tons of toxic waste on the island. This dispossessed the residents of the island of their land and destroyed their culture, so they fought back, forcing Rio to close its mining operations. We allege that Rio and the Papua New Guinea government then brought in troops to reopen the mine. When that failed, they instituted a military blockade that lasted ten years and we believe caused the deaths of at least 10,000 people because Rio blocked medicine and food aid. As one manager at Rio put it, they were “starving the bastards out.” We sued Rio and the legal battle has lasted nearly 12 years and has gone back and forth to the U.S. Supreme Court. Some articles say the movie Avatar was based on this story.
LD: The competition for lead plaintiffs’ counsel has become really heated in recent years and you’ve won several lead roles in some major cases, such as Toyota and now the Apple case. How do you prepare for that phase of litigation?
SB: I try to ask myself, what would a judge want in a lawyer for a class? A proven track record, tenacious, not afraid to try cases, delivers real results, is not greedy and is always honest with the Court. These are my themes in lead counsel fights.
LD: What’s the most exciting part of your job?
SB: Taking on corporate America and, in particular, cases that are pioneering in some fashion.
LD: What’s your least favorite part of your job?
SB: My least favorite part of my job is having to temper the unbridled enthusiasm of our attorneys eager to represent the rights of consumers and victims in difficult cases. We need to choose our battles to be potent advocates.
LD: Do you have other passions outside of law?
SB: I am an avid cyclist and like to ride and race whenever I can. We sponsor a cycling team that competes in races throughout the United States. I am a former soccer player and coach, now reduced to refereeing and supporting my 11-year-old girl soccer phenom – who “nutmegs” me at will.