Joseph J. Tabacco, Jr., the founding member of Berman Tabacco’s San Francisco office, actively litigates antitrust, securities fraud, commercial high tech, and intellectual property matters. He has long been recognized by clients and lawyers on both sides of the aisle as a leading plaintiffs’ antitrust and securities class action attorney. Indeed, when asked in a Law360 question and answer interview, “Outside your own firm, name one lawyer who’s impressed you,” Gibson Dunn senior partner John Dickey named Mr. Tabacco, explaining that “Joe is a fine plaintiff’s counsel, and a formidable adversary, while being able to maintain collegial relationships with opposing counsel.” Mr. Tabacco has recovered billions of dollars on behalf of investors, businesses, and consumers prosecuting and, in some instances, trying antitrust and securities cases.
As a lead counsel, Joe achieved a historic $295 million settlement in the landmark antitrust class action against diamond giant DeBeers, for monopolization of the worldwide supply of diamonds. Sullivan v. DB Investments, Inc., No. 04-02819 (D.N.J.). This is believed to be the first successful U.S. prosecution of De Beers. The settlement was particularly significant because it included agreements by De Beers to submit to a comprehensive injunction limiting De Beers’ ability to restrict the worldwide supply of diamonds in the future and to the jurisdiction of the U.S. court to enforce the settlement terms.
As co-lead counsel representing lead plaintiff Aetna U.S. Healthcare Inc. in In re Cardizem CD Antitrust Litigation, No. 99-01278 (E.D. Mich.), the leading generic drug competition case, Joe helped secure an $80 million settlement from French-German drug maker Aventis Pharmaceuticals and the Andrx Corporation of Florida. The case also resulted in a significant appellate victory with a first of its kind ruling that the brand name drug maker’s payment of $40 million per year for the generic company to delay bringing its generic version of blood-pressure medication Cardizem CD to market constituted an agreement not to compete that was a per se violation of the antitrust laws. Today that victory still shapes the ongoing antitrust battle over competition in the pharmaceutical market.
Mr. Tabacco played a prominent role in In re Dynamic Random Access Memory (DRAM) Antitrust Litigation, No. 4:02-md-01486 (N.D. Cal.), which alleged that defendant chip-makers conspired to fix prices of the Dynamic Random Access Memory (DRAM) chips sold in the United States during the class period. The case resolved with significant settlements totaling nearly $326 million with some of the world’s leading manufacturers of DRAM chips.
Mr. Tabacco is currently overseeing In re Lithium Ion Batteries Antitrust Litigation, No. 13-md-2420-YGR (N.D. Cal.), a case against domestic and foreign companies alleging a conspiracy to fix the prices of lithium ion rechargeable batteries, which affected the prices paid for the batteries and certain products in which the batteries are used and which the defendants sell. Mr. Tabacco and the team have negotiated settlements with all defendants, including Sony, Panasonic, Toshiba, Hitachi Maxwell, LG Chem, Samsung and NEC Corp. While some of the settlement amounts are currently confidential, the others total nearly $69 million. Joe is also currently engaged in actions against dozens of Wall-street banks for price-fixing financial instruments tied to interest rate benchmarks. The cases are notable for the wide-ranging claims plaintiffs have asserted to protect clients and challenge the collusive behavior of defendants.
Prior to 1981, Mr. Tabacco served as senior trial attorney for the U.S. Department of Justice, Antitrust Division in both the Central District of California and the Southern District of New York. In that capacity, he had major responsibility for several criminal and civil matters, including the antitrust trial of United States v. IBM.
Mr. Tabacco was one of the firm’s lead attorneys representing the Wyoming State Treasurer and Wyoming Retirement System in In re IndyMac Mortgage-Backed Securities Litigation, No. 1:09-cv-04583 (S.D.N.Y.), which alleged that IndyMac’s offering materials for MBS certificates were untrue because they mischaracterized the underwriting practices for the underlying mortgages. Mr. Tabacco and his team obtained settlements totaling $346 million on behalf of investors, which is one of largest MBS class settlements. The settlement is extraordinary, not only because of its size, but also because $340 million of the settlement amount was paid entirely by the underwriters who had due diligence defenses. By contrast, nearly all other MBS settlements included claims against the MBS issuer, which is held to a strict liability standard for which there is no due diligence defense (IndyMac was defunct).
Mr. Tabacco oversaw California Public Employees’ Retirement System v. Moody’s Corp., No. CGC-09-490241 (Cal. Super. Ct. San Francisco Cty.), a pioneering case that held credit rating agencies (Standard & Poor’s and Moody’s) financially responsible for their negligence in rating structured investment vehicles. After settling with both McGraw Hill Companies and Moody’s, California Public Employees’ Retirement System’ total recovery for the case was $255 million. In addition to obtaining a substantial recovery for investment losses, this case was groundbreaking in that (i) the settlements rank as the largest known recoveries from Moody’s and S&P in a private lawsuit for civil damages; and (ii) it resulted in a published appellate court opinion (which appeal was argued by Mr. Tabacco) overcoming decades of First Amendment precedent by holding that credit rating agencies can, in certain circumstances, be liable for negligent misrepresentations under California law for their ratings of privately placed securities.
Mr. Tabacco has tried a number of securities cases, each of which resolved successfully at various points during or after trial, including In re MetLife Demutualization Litigation (settled after jury empaneled), Gutman v. Howard Savings Bank (plaintiffs’ verdict after six-week trial), In re Equitec Securities Litigation (settled after six months of trial), and In re Ramtek Securities Litigation.
For 11 consecutive years, Mr. Tabacco has been among the top U.S. securities litigators ranked by Chambers USA and is also AV® Preeminent™ rated by Martindale-Hubbell®. Mr. Tabacco has been featured by the Daily Journal as one of California’s top 30 securities litigators, a group chosen from both the plaintiff and defense bars, and as one of the Top Plaintiffs Lawyers in California in 2017. He was also recognized by Who’s Who Legal: Competition, most recently in 2017—a designation he has received for the past 4 years, since the creation of the publication’s Plaintiffs section. Additionally, for 14 consecutive years, Mr. Tabacco has been named a Super Lawyer by Northern California Super Lawyer Magazine, which features the top 5% of attorneys in the region. In 2017, he was ranked as a Recommended Attorney in Securities Litigation by The Legal 500 and a Local Litigation Star by Benchmark Litigation. Recently, Mr. Tabacco was singled out by a top defense attorney for exemplifying “the finest tradition of the trial bar.”