Wilkinson Stekloff’s record of success in class action cases is second to none. We are one of the few firms that has taken high-value consumer class actions to trial—and won. And we have delivered favorable results for our clients before trial as well.
Our deep bench includes multiple lawyers who have had lead or stand-up roles in consumer class action trials and a former in-house attorney at Altria who eliminated the company’s active class action docket, including by trying four class actions to successful outcomes.
Since opening our doors in 2016, we have tried three class actions to verdict:
- Larsen v. Philip Morris USA (Missouri Circuit Court) & Miner v. Philip Morris USA (Arkansas Circuit Court). In March 2016, just two months after opening its doors, Wilkinson Stekloff, led by Beth Wilkinson, successfully represented Philip Morris USA in a consumer class action trial concerning the marketing of Marlboro Lights cigarettes. Plaintiffs sought more than $1.7 billion in damages. On April 7, 2016, after a three-week trial, the St. Louis jury rendered a complete defense verdict in less than 30 minutes, finding by an 11-1 vote that the marketing of Marlboro Lights did not deceive smokers.
Plaintiffs claimed that Philip Morris’s use of the terms “Lights” and “Lowered Tar and Nicotine” violated Missouri state law by suggesting that Marlboro Lights, the nation’s best-selling cigarettes, were not as dangerous as Marlboro full-flavored cigarettes. A 2011 trial ended with a hung jury, and Plaintiffs delayed a 2014 re-trial of the case following the publication of a Surgeon General report which, Plaintiffs claimed, showed that Marlboro Lights were more dangerous than full-flavored cigarettes. At the 2016 retrial, Wilkinson Stekloff focused its defense on the issues that were actually disputed at trial—whether, in fact, Marlboro Lights delivered less tar and nicotine to smokers, whether the company’s marketing was in conflict with the public health community consensus at the time, and whether the class suffered any actual damages—and established, on the merits, that Philip Morris deserved to prevail.
Just months after the Larsen victory, Wilkinson Stekloff helped Philip Morris reach a favorable settlement in Miner, a similar class action suit pending in Arkansas state court. A much longer class period and the inclusion of the Marlboro Ultra Lights brand brought the claimed damages in Miner to over $2.5 billion. On the eve of an August 2016 trial and on the heels of Wilkinson Stekloff’s complete defense win in Larsen, Plaintiffs agreed to settle all of their claims for $45 million, less than 2% of Plaintiffs’ damages demand.
- Farar v. Bayer AG (Judge Orrick, U.S. District Court for the Northern District of California). Wilkinson Stekloff won a decisive trial victory for Bayer in a certified consumer class action lawsuit brought on behalf of One A Day multivitamin consumers. Without calling any witnesses in the defense case, the team relied on devastating cross-examinations of plaintiffs’ witnesses to convince the jury to reject plaintiffs’ claims that Bayer had misrepresented the health benefits of One A Day multivitamins.
Plaintiffs had initially sought over $4 billion in damages, but the Wilkinson Stekloff legal issues team, led by James Rosenthal and Kieran Gostin, reduced the potential exposure by hundreds of millions of dollars through pre-trial motions. Then, at trial, the Wilkinson Stekloff team got the plaintiffs’ expert witness to agree that the vitamins in One A Day help support heart health, immunity, and physical energy, and elicited testimony from one of the name plaintiffs that she thought One A Day multivitamins would boost her immunity, undermining allegations that she was deceived as a consumer.
The trial highlighted the top-to-bottom contributions of our trial teams. On his direct examination, Plaintiffs’ expert used a chart intended to show that most consumers are already getting their needed vitamins without supplementation. The Wilkinson Stekloff associate team quickly discovered, through the metadata on the chart, that it had actually been cribbed from a sports website and reflected the average height of NFL players, rather than vitamin blood levels.
The case was brought to a close after the jury not only rejected plaintiffs’ challenges to Bayer’s product labeling, but also concluded that none of the class representatives had relied on the challenged health claims in purchasing the One A Day product. The jury returned a complete defense verdict after just an hour of deliberations. The Wilkinson Stekloff team were named as “Law360 Legal Lions” for the victory, and James Rosenthal was selected as one of National Law Journal’s “Winning Litigators.”
- In re NCAA Grant-in-Aid Antitrust Litigation (Judge Wilken, U.S. District Court for the Northern District of California). Wilkinson Stekloff represents the NCAA in consolidated lawsuits involving claims by current and former college football and basketball student athletes challenging, under the Sherman Act, NCAA rules limiting the level of athletics-based financial aid and benefits that student athletes may receive. The Plaintiffs set out to fundamentally change college athletics in America by attacking their defining characteristic—that student athletes are amateurs—making this one of the most important cases in the NCAA’s history.
Rakesh Kilaru led the NCAA’s briefing efforts at the summary judgment stage. Beth Wilkinson then led the NCAA’s defense in a three-week bench trial that took place in September 2018. The Court’s opinion reaffirmed the procompetitive value of the NCAA’s rules limiting pay for student-athletes while enjoining certain limitations on benefits that student-athletes may receive. An appeal is pending.
We have also won significant victories for our clients at the pretrial stage.
- Amalgamated Bank v. Maximus, Inc. (Judge Trenga, U.S. District Court for the Eastern District of Virginia). Wilkinson Stekloff, led by Kosta Stojilkovic, won complete dismissal of this securities fraud class action. In August 2017, MAXIMUS was sued under sections 10(b) and 20(a) of the Securities Exchange Act of 1934, based on allegations that the company, along with several members of its executive team, had over the course of several months made eleven separate false or misleading statements on earnings calls and in SEC filings concerning MAXIMUS’s performance on a major contract with the British government. The Plaintiffs identified several stock-price drops, including one single-day price drop of nearly 22%, and claimed that these market losses reflected reactions to the disclosure of information previously omitted or misstated by the MAXIMUS defendants.
Wilkinson Stekloff moved to dismiss the amended complaint with prejudice, arguing that Plaintiffs had failed to plead facts giving rise to an inference that MAXIMUS acted with scienter, or an intent to defraud. Wilkinson Stekloff also argued that Plaintiffs had failed to adequately plead materiality as to certain alleged misstatements or omissions and had failed to plead loss causation. Judge Trenga of the Eastern District of Virginia agreed with Wilkinson Stekloff’s position and dismissed the plaintiffs’ claims with prejudice.
Wilkinson Stekloff then successfully defended the dismissal of Plaintiffs’ claims before the United States Court of Appeals for the Fourth Circuit. On appeal, Plaintiffs left unchallenged the district court’s conclusions regarding eight of the eleven allegedly false or misleading statements. Just 38 days after oral argument, the Court unanimously upheld Wilkinson Stekloff’s victory. The Court issued a two-page opinion stating that, after “having carefully considered the record and the briefs and arguments of the parties, we find ourselves in agreement with the district court that the complaint fails to allege a material misrepresentation.”
- Kleen Products LLC et al. v. Packaging Corporation of America et al. (Judge Leinenweber, U.S. District Court for the Northern District of Illinois). Led by partners Beth Wilkinson and Rakesh Kilaru, Wilkinson Stekloff won summary judgment for Georgia-Pacific LLC (“GP”) in this antitrust class action involving claimed damages of over $10 billion. The win, which was affirmed unanimously on appeal, came just weeks after other defendants had agreed to pay over $350 million in settlement.
Wilkinson Stekloff joined the team while the district court’s class certification ruling was on appeal to the Seventh Circuit. We recognized that GP had an important story to tell for itself: Among other things, in a case where Plaintiffs claimed Defendants had conspired to reduce production capacity, GP had not closed a single containerboard mill during the class period. Accordingly, GP focused its defense on telling its own story. We helped GP find and retain its own experts, developed an affirmative narrative specific to GP’s own unique facts, and filed independent Daubert and summary judgment briefs. In June 2017, Judge Leinenweber issued a ruling that imposed critical limits on the testimony of Plaintiffs’ experts. Just weeks later—and one day after preliminarily approving the other defendants’ settlement—the court granted summary judgment to GP, adopting our key argument: that GP’s pricing behavior during the class period was economically rational and that no reasonable jury could infer a conspiracy from the mere fact that GP communicated and met with its co-defendants. Benchmark Litigation named the summary judgment ruling one of its “National Impact Cases” of the year. Pointing to the resounding victory, the American Lawyer wrote, “This is Why You Hire Beth Wilkinson.”
On appeal, the Seventh Circuit unanimously affirmed the district court’s decision, agreeing there was not enough evidence of conspiracy to allow the case to proceed to trial. The opinion was authored by Chief Judge Wood (who had written the opinion affirming class certification), and joined by Judges Bauer and Rovner.
- In re Namenda Direct Purchaser Antitrust Litigation (Judge McMahon, U.S. District Court for the Southern District of New York) and In re Loestrin 24 FE Antitrust Litigation (Judge Smith, U.S. District Court for the District of Rhode Island). Wilkinson Stekloff represented subsidiaries of Allergan plc in two certified class action antitrust lawsuits involving billions of dollars in claimed damages. Both cases settled favorably right before trial for less than 5% of the claimed damages.
First, partners Beth Wilkinson, Rakesh Kilaru, Kieran Gostin, and James Rosenthal, served as counsel for Forest Laboratories, Inc. in a certified class action that was set for trial. The case involved two antitrust claims related to the distribution of Namenda, a groundbreaking treatment for dementia in Alzheimer’s patients. Plaintiffs, a class of direct purchasers of branded and generic versions of Namenda, alleged that Forest made an anticompetitive “reverse payment” to settle a generic drug manufacturer’s challenge to Namenda. Plaintiffs also claimed that Forest acted unlawfully in trying to effectuate a “hard switch” between a twice-daily and once-daily version of Namenda. The case, which involved approximately $21 billion in trebled damages, settled on the eve of trial.
Shortly thereafter, partner Moira Penza represented Warner Chilcott and Watson in a separate lawsuit involving allegations of anticompetitive conduct regarding Loestrin 24, a popular oral contraceptive. Plaintiffs claimed approximately $8 billion in trebled damages. The case settled days before Moira was slated to deliver the opening statement.
Wilkinson Stekloff continues to serve as an industry leader in class action defense:
- In re National Football League’s “Sunday Ticket” Antitrust Litigation (U.S. District Court for the Central District of California). Led by Beth Wilkinson, Brian Stekloff, and Rakesh Kilaru, Wilkinson Stekloff represents the National Football League, its 32 member teams, and NFL Enterprises in this putative class action lawsuit. Plaintiffs’ antitrust claims challenge the NFL’s multi-billion-dollar exclusive distributorship arrangement with DIRECTV for Sunday Ticket and, even more fundamentally, the business arrangements whereby the NFL teams collectively license the broadcast rights to NFL games. Wilkinson Stekloff and its co-counsel initially persuaded the court to dismiss all of Plaintiffs’ claims, with prejudice, because the challenged arrangement not only fails to violate the antitrust laws—but actually promotes consumer welfare by increasing the availability of live televised NFL games. The Ninth Circuit subsequently reversed that decision, and the case remains on appeal.
- Altria E-Vapor Litigation (Judge Orrick, U.S. District Court for the Northern District of California). Led by Beth Wilkinson, James Rosenthal, Rakesh Kilaru, and Moira Penza, Wilkinson Stekloff represents Altria in several putative class actions arising out of Altria’s minority investment in JUUL Labs, Inc., a leading manufacturer of closed-system e-vapor devices. One set of putative class allegations involves antitrust claims brought by direct purchasers, indirect purchasers, and indirect resellers. Another set involves consumer protection claims brought by purchasers of e-vapor products.
- House et al. v. National Collegiate Athletic Association et al. and Oliver v. National Collegiate Athletic Association et al. (Judge Wilken, U.S. District Court for the Northern District of California). Led by Rakesh Kilaru, Tamarra Matthews Johnson, Kieran Gostin, and Beth Wilkinson, we represent the NCAA in these putative class action lawsuits brought against the NCAA and its member Conferences by three college student-athletes on behalf of all Division I student-athletes. Plaintiffs’ antitrust claims challenge the NCAA’s rules restricting student-athletes’ use of their names, images, and likenesses (“NIL”).
- Hengle v. Treppa (Judge Novak, U.S. District Court for the Eastern District of Virginia). Led by Rakesh Kilaru, James Rosenthal, and Kosta Stojilkovic, Wilkinson Stekloff represents the members of the Executive Council of the Habematolel Pomo of Upper Lake, a federally-recognized sovereign Indian nation, in this putative class action lawsuit. Plaintiffs originally filed suit against the Tribe’s economic development arms, seeking treble damages and injunctive relief based on claims that the Tribe’s online consumer lending operation violates Virginia law and RICO. In response to Wilkinson Stekloff’s initial motions, Plaintiffs dropped all claims for damages and instead sought only an injunction against the further operation of the Tribe’s businesses. The case is currently on interlocutory appeal to the Fourth Circuit.