Don’t let Phil Iovieno’s sincerely nice disposition fool you.
He’s one of the best antitrust lawyers around, with more than $1B in settlements to his name – alongside significant defense victories for clients from SBC to DuPont and Phillip Morris.
One of the top Boies Schiller partners in New York, he’s spent two decades developing a significant niche in class-action opt-out litigation, including the LCD flat-panel antitrust claims, which have generated over $500M in settlements and handsome returns in fees. He’s the rare big-firm lawyer who understands the economics of hitting a case out of the park financially. And let’s just say that’s a niche that doesn’t come easily to many of his equally esteemed colleagues, among whom it’s now fashionable to try their hand on the plaintiff side of a case.
“It has been rewarding to watch Phil develop from a young associate into one of the country’s preeminent antitrust litigators,” says Boies Schiller managing partner Nicholas Gravante. “Because he’s so low-key, his tremendous success sometimes seems effortless, but as his clients, partners and even adversaries can attest, no one works harder.”
It all starts with thousands of hours spent in court - where he learned it’s ok to be a nice guy. “So many lawyers, they see a good lawyer, and they’re like, “Oh, so-and-so does this,” Iovieno says. “But you can’t just do the same. You have to watch them and try different things to figure out what works for you. Once you get that, you have the keys to the kingdom because then you’re being your authentic self.”
Iovieno began building his skills early on, juggling as many as 75 cases at a time at Albany, New York-based Roemer Featherstonhaugh. He handled everything from depositions to courtroom matters and jury trials, and also appeared multiple times in the state Appellate Division as well as the Second Circuit Court of Appeals.
“They were all little cases,” he recalls, “but I was honing all these on-your-feet litigation skills because I was in court all the time. You can only do that through experience; you can’t always second-chair people, and there has to be some level of volume. It doesn’t have to be the volume I had in the first five years of my career, but it has to be more than a deposition a year.”
Iovieno began developing his people skills long before he went to court. By high school in Westchester County, N.Y., the athletic Iovieno was playing multiple sports including primarily lacrosse, which he continued to play through college. He was also working many part-time indoor jobs - including booking appliance repairs for Sears. He was going more than a little stir crazy working indoors during the summer when a friend suggested he become a golf caddy.
Pre-Google, he turned to a good old-fashioned map and found the Knollwood Country Club in White Plains, which was the closest to his home. He contacted the caddy master, and “Boom, I got a job. I worked there for six summers, and it was amazing. I was meeting a whole range of different people on a daily basis and developing all these people skills I didn’t have at the time. You meet people with egos, people with no egos, the whole range of personality characteristics, and you don’t even realize you’re honing all these soft skills.”
Caddying changed his life, providing scholarships that helped him get through undergrad and law school. The philanthropy of the golfers also inspired him to pay it forward with a charity he and his brother started to honor their parents that now annually helps over 500 children and their families throughout the Northeast who are dealing with a life-threatening illness and are from economically challenging circumstances.
And those golfers with egos, without egos and everything in between? They had more than a little to do with helping set Iovieno on the path of being a top trial lawyer who knows how to handicap a courtroom as well as 18 holes.
Lawdragon: Tell me about your path to Boies Schiller and building your remarkable antitrust and class-action opt-out practice.
Phil Iovieno: After I graduated from Albany Law School, I decided to stay in Albany, but wanted to work for a firm that was connected to New York City. I joined Roemer Featherstonhaugh, which had a substantial office in the city, where I got great experience, and when it broke up, I began looking for another firm.
I've always thought that if you put yourself in opportunities where you can grow and develop, everything else will ultimately take care of itself, as long as you're the kind of person who treats people right. So I applied at Barrett & Gravante, which I knew to be a group of outstanding lawyers working on major cases that most small firms couldn’t hope to be involved in.
At that point, I had never worked on cases of the size that Barrett & Gravante was working on, and I figured, "This is a no brainer." I’m going to further my resume here and learn from some of the best in the business. When they made an offer, I joined in a heartbeat. It was a little like the scene in “Jerry Maguire” where Renee Zellweger tells Tom Cruise, “You had me at hello.” After a year, I knew I had made the right decision; it was exactly what I was looking for. They operated in both Albany and New York, and I finally had a platform that people in New York City really knew, that I could use to generate business. I had everything I needed. When we merged with Boies Schiller in July of 2000 that was the icing on the cake.
LD: How did you go about developing the practice that you have today?
PI: When I started at Boies Schiller in 2000, I was a traditional associate, working on just defense cases. The firm was very hot, just coming off Bush v. Gore. We were in Adelphia, Tyco all these very large and significant cases.
When the government’s settlement with Microsoft was going through the approval process, we were retained by SBC, which put up some witnesses during the fairness hearing. That was 2002, and Don Flexner put together a team of people to prepare for that and I was one of them. It was extremely interesting and fun. We wrote a 400-page comment. That experience fueled my interest in antitrust litigation because I worked so closely with Don Flexner, who was a very hands-on leader and one of the best antitrust lawyers in the country. When that case ended, we began defending SBC in a large monopolization case brought by Susman Godfrey involving, of all the dead technologies, pay telephones. Nick Gravante and I spent four of every five weekdays in Texas for over 6 months defending one deposition after another as virtually every SBC witness in that case was really important.
It was a great learning experience for me being a key member of the defense team on a large, significant antitrust case, and seeing how Don and others constructed an extremely careful, detailed, scorched-earth defense, which ultimately paid off for the client after several years of hard-fought litigation. So with that I learned first-hand about the defense side of these huge antitrust cases and what all the fantastic defense lawyers in all those conference rooms are thinking and trying to do. Knowing the strategies and exactly how the best antitrust lawyers try to defend these large antitrust cases has been extraordinarily beneficial to me when I’m on the plaintiffs’ side, both in selecting which cases have merit and in exactly how to prosecute them.
LD: You’ve learned a lot over the years about how to generate huge wins for antitrust plaintiffs. So many big firms now want to try their hand at plaintiff’s work because of the obvious benefits to law firm economics, but I take it it’s not always as easy as it looks.
PI: You’re absolutely right. If you’re on contingency, one of the real challenges on the plaintiffs’ side is that you need to be really focused and efficient. In the end, you will only be successful on this side of the V if you can both achieve a great economic result for your client, and also large premiums for your firm to justify the significant economic risk it is taking both in terms of lodestar and the millions of dollars the best firms invest in the top testifying economic experts necessary to successfully try these cases.
The only way to achieve that type of result for your client is to craft a very thorough and detailed plan from the very start of the case that is focused primarily on what is needed to successfully try the case, if necessary. And the only way to achieve the premiums necessary to justify the risks taken by your firm is to manage your lodestar very carefully and focus your attention and efforts on the strategies and issues that will be most important to carefully preparing your client’s case for trial.
If this is not done well and a plaintiff becomes distracted by the defense lawyers’ predictable efforts to force them to put in endless numbers of unnecessary, non-productive hours fighting over tangential issues that will ultimately not matter at trial, the end result will be a very bloated lodestar that will make achieving a reasonable premium much more difficult. Quite simply, if I litigate a case for several years and ultimately get a one-to-one fee-to-lodestar result for my firm, nobody should be patting me on the back. If they’ve got their eye on the ball, what they should be saying is, "Why did we take all that risk for the same fee that we could have received in a straight billable case?"
Although it is clear that the way to produce premiums is to be super-efficient, doing so is tricky and requires a variety of strategies. In some cases, I’m the most efficient person to handle certain tasks, even if it’s technically below my pay grade based on my years of experience. I am constantly weighing whether certain tasks should be given to an associate or handled by someone higher up the chain. Many times even a simple task could end up generating an outsized lodestar if given to a junior associate simply because they don’t have the experience to handle it efficiently. So I’m always engaged in a balancing act to figure out what I or the other more senior members of my team should be doing and what I should be delegating further down the chain.
LD: Great way to visualize it. Can you give me an example of the importance of efficiency working the plaintiff side?
PI: Sure, one of the first things I learned on the plaintiff side of these antitrust cases from David Boies is to figure out the three to five cornerstone elements of our case, which elements, if proven, will enable you to win at trial. You must view those issues as your fort and you have to go all out to build, solidify and protect that fort.
Defendants often try to pull plaintiffs away from those issues and force you to expend resources battling over many tangential issues that don’t relate to those key issues you have identified. The key is to recognize this and cave on those tangential issues if necessary. It’s just about building and guarding your fort.
The CRT case is a great example of this strategy in practice. This case involved an incredible and unprecedented documentary record of the price-fixing conspiracy at issue. Despite this, the class and defendants’ counsel noticed well over 100 fact depositions, most of which added virtually nothing to the record that had already been established by the explicit documents. As a defense lawyer, you simply just attend as many of those as you can.
Representing my group of corporate opt-out plaintiffs, however, I knew that since the evidence was so rock solid I could have added virtually no value by attending every one of those 100 depositions and asking questions, so I chose not to. But there were some critical depositions for the trial of the case because they were witnesses from the defendant that was cooperating with the DOJ. Those witnesses refused to come to the United States, and were instead scheduled over a two-week period in Taiwan.
It was an extraordinary expense and a lot of time, but since those depositions were so critical, I volunteered to travel to Taiwan to take the lead on each of those deposition on behalf of all the opt-outs in the case. Those depositions were critical in building the record necessary to successfully try that case through those witnesses’ admissions and the foundation they laid to admit all the most important documents into evidence. We ultimately recovered almost a quarter-billion dollars in that case for our corporate clients - which was at least five times more than each of those clients would have gotten had they remained in the class. Based on these strategies, the end result for my firm was also a large premium in fees.
LD: How did opt-out litigation evolve into a major practice?
PI: Remember that I’m not only doing opt-out plaintiff cases. In addition to traditional defense work, I’m scheduled to try an old-fashioned competitor antitrust case for a plaintiff in 2021. I’m going to be assisted by Karen Dyer, one of our firm’s top trial lawyers. We’re representing a medical device manufacturer, which is challenging a much larger competitor’s illegal tying arrangement, and seeking hundreds of millions in damages. It’s just a classic antitrust violation and Karen and I are really excited to try the case.
But on the opt-out side, the volume of opt-outs has gone through the roof in the last 15 years. My first big opt-out cases were in the Brand Name Pharmaceutical Antitrust Litigation. LCD was one of the next big ones. The DOJ investigation began in late 2006 and the first class cases were filed shortly thereafter. We had a group of 12 opt-out plaintiffs in the LCD case and the first of those cases was filed in 2009. By our calculation, over 80 percent of the market opted out in LCD, probably a similar percentage in CRT, and it appears the same will ultimately be the case in our most current opt-out representations in the Broiler Chicken Antitrust Litigation.
The percentage of the market and number of large companies opting out of these cases has skyrocketed for a simple reason: in-house counsel now recognize the value in these cases and, although class actions are effective, useful mechanisms to consolidate and compensate small claims, they’re traditionally not optimal for large claimants. Historically, many corporations were hesitant to be on the left side of the ‘V’, but that has changed. In our Broiler Chickens case, large corporate opt-outs include companies such as U.S. Foods, Sysco, Walmart, Darden Restaurants, BJ’s, and Kroger’s. In LCD, among many others Dell, HP and Motorola all opted out.
LD: Do you see that trend accelerating?
PI: I do. General Counsel have learned that carefully managing their company’s claims can be a significant revenue source. We help them carefully and strategically transform their legal department from a cost center to a profit center by identifying and acting on the right opportunities to opt out, and staying in the class and recovering their share of those settlements when a variety of factors specific to that company make staying in the class the best course of action in a particular case.
LD: It sounds like the game has really changed from when lawyers started practice 25 or 30 years ago where everything was treated as equally mission critical without regard to the end game.
PI: By necessity it has. Today, I do a plan from the beginning of the case outlining my vision. And I litigate based on that plan. It’s choosing the cornerstones you will fight for – which sometimes means giving up smaller, non-core issues, rather than having unnecessary discovery fights over everything. But you must be ready for the critical depositions and engaged with the experts.
LD: How did you make the transition to plaintiff’s work from the defense side?
PI: As much as I enjoy antitrust defense work, I gradually realized I didn’t want to limit myself to that. I also saw a great opportunity to generate business, which is the one time-tested way to have control over your life in this profession. To use a baseball metaphor, if my only pitch was billable cases at premium, non-discounted rates, I wouldn’t be striking out too many batters. But I now throw three pitches. I do traditional billable cases, contingency cases and more and more alternative fees, often blended contingencies with endless permutations. I haven’t abandoned the defense side – but am presently emphasizing plaintiff’s work with a sharp focus on antitrust.
When I look back and ask, "How did I get here," it’s amazing how much your surroundings within a firm and who you end up working with ultimately inform your approach to everything. Your personality may be such that you're inclined to be a certain way, which is the case with me. I strive to be direct and brutally honest in my personal life and I carry those traits into my relationships with clients. When you then see great litigators like David Boies and Nick Gravante doing it the same way you do, it reinforces your approach. I've been fortunate to have learned from the best and don’t believe I could have had better mentors.
LD: And I understand golf teed up your law career way back when?
PI: The first summer I worked as a caddy was just before I started at Siena College. I’d been caddying for about a month when one of the members walked over and said, “Phil, have you applied for the Westchester Golf Association scholarship? I hear you’re going to college next year.” I told him I didn’t even know about it, and he said, “We’ve got to get you in for that, but the deadline is next week. I’m going to get you the application, and you have to get it in right away.”
I filled it out, submitted it and still didn’t know anything about it. But the next thing I knew, I was called for an interview at one of the other country clubs with 12 board members. A couple of days later, when I got home after caddying and walked into the house my father was sitting at the kitchen table. My mother said, "Do you know what came in the mail today?"
My father had this look on his face, like he was having a heart attack: “Son, look at this.” I had gotten a scholarship for $2,500. Because Siena was $5,200, I got a 50% scholarship to go there. They continued the scholarship for my four years at Siena and then, when I went to law school right after college, they continued it for law school. I was the first person to get a graduate school scholarship from the caddie fund.
LD: Is that what inspired the foundation you run with your brother?
PI: It was. It’s named after our parents. And of course, the Westchester Golf Association is a big part of my continued charitable giving. They give over $1M a year to these caddies, people like me. Many kids who are much less fortunate than me, really underprivileged kids; and this charity’s big claim to fame is that they've never turned away any kid in need. If any caddy met their financial requirements, they got a scholarship because they have a big endowment.
LD: Tell me a little more about your own charity. How did it get started?
PI: My father died young, and my brother had this little outreach program that he was doing in a local hospital around the holidays, so we had the idea of naming it after our father. My father really loved kids. And over time, the program has steadily grown. We’re currently helping over 500 kids a year now.
PI: When my mom died in 2012, we renamed the foundation for both of them. It’s now called The Frank and Rosemary Iovieno Caring for Children Foundation. We cover nine hospitals from Boston through upstate New York. When my brother and some friends started the charity in the late ‘90s, their goal was to help brighten the holidays for children born with AIDS. Our mission has broadened to help children with life-threatening illnesses as well as their families; really sick kids from economically challenged families.
LD: How does the program work?
PI: We raise a lot of money around the holidays, then use it to take care of the families’ holiday needs–not just the sick child, but their siblings, too, because it's not right to help just the sick child. We get sponsors and raise money. We typically have a fair bit of overage in our monetary donations. We use that money to help support the neediest families through the year. We try to focus our work during the year to funding various educational enrichment for these kids, but do other things too.
Being the beneficiary of incredible charity as I was with the scholarships, you realize what a huge impact it can have on a child’s life. I was always taught to be charitable, too. My parents were very religious; church and religion were big parts of our lives, and they emphasized that it’s important to give back. My father was a union worker for the telephone company, and my mom stayed at home, so when the union went on strike, it was a serious hardship in the Iovieno household.
The money just stopped.
I remember one strike that lasted, six or seven months. I was probably only 5- or 6-years old, but boy it was not easy. To get that caddy scholarship money was a huge deal and it really changed my life. Then I got an academic scholarship to go to Albany Law School. Between the caddy and academic scholarship, I really paid hardly anything, so I’m mindful of how important it is to help others in need. It also was a lesson that unexpected obstacles come up in life and that you have to stay focused on long-term goals despite short-term challenges. That’s a life lesson that carries through to litigation, as well. Risk in litigation can come from unlikely and unexpected sources and you need to stay focused to achieve your goals when these challenges crop up.