Joseph J. Tabacco Jr.

The First District's Division Three ruled on May 23, 2014, in an opinion certified for publication. A rating, the court held, conveyed more than a view of the future; it represented "past or existing fact — namely, the then-current composition and quality" of the vehicles' assets. The notes had been sold in private placements, and the ratings, though posted on the agencies' websites, were "intended for, and disseminated to, the limited class of institutional investors authorized by law to purchase" them, so the actual-malice standard reserved for speech on matters of public concern did not apply. CalPERS had shown actionable misrepresentations, a lack of reasonable basis for the ratings, a duty owed to a defined class of investors and justifiable reliance. The order was affirmed in full, and the Supreme Court of California denied review. Standard & Poor's settled for $125 million on February 3, 2015. Moody's settled for $130 million on March 9, 2016, two months before the trial date. "This resolves our lawsuit against Moody's and restores money that belongs to our members and employers," Matthew Jacobs, the fund's general counsel, said.

The Antitrust Division

Tabacco took his degree in government at the University of Massachusetts Amherst in 1971 and his law degree with honors at George Washington University in 1974, and went into the Antitrust Division of the Department of Justice, where he spent seven years as a trial attorney and then senior trial attorney in the Central District of California and the Southern District of New York and taught as a fellow of the Attorney General's Advocacy Institute in Washington. He entered private practice in 1981. In 1995 he and Norman Berman opened the San Francisco office of the firm that has carried both their names since August 2017, and he sits on its Executive Committee.

A Classic Example

On September 24, 1997, Hoechst Marion Roussel, which sold the heart drug Cardizem CD, agreed to pay Andrx Corporation $40 million a year to keep Andrx's generic version off the market; about $89.83 million had changed hands when the agreement ended in June 1999. Purchasers sued in the Eastern District of Michigan, and Tabacco was co-lead counsel for Aetna U.S. Healthcare and a class of health insurers and consumers. Judge Nancy G. Edmunds held in June 2000 that the agreement was unlawful on its face, and on June 13, 2003 the Sixth Circuit agreed: a horizontal agreement to eliminate competition, the court wrote, was "a classic example of a per se illegal restraint of trade." By then Aventis, Hoechst's successor, and Andrx had agreed to pay $80 million in a settlement announced on January 27, 2003 with the attorneys general of the states: about $21 million to consumers, $4.5 million to state agencies and the remainder to health plans.

Submission to Jurisdiction

De Beers, which controlled the supply of rough diamonds, had for decades declined to appear in American courts. When diamond resellers and consumers sued it in 2001 and 2002, alleging that it had monopolized the worldwide supply and overcharged them, the company let default judgments be entered rather than answer. Tabacco represented a class of resellers, the jewelry stores and dealers who bought downstream, Arrigotti Fine Jewelry among them. Settlement talks began in May 2005. Under the agreement Judge Stanley R. Chesler of the District of New Jersey approved on May 22, 2008, De Beers paid $295 million, $22.5 million to direct purchasers and $272.5 million to the resellers and consumers, consented to an injunction limiting its ability to restrict the worldwide supply of diamonds, and submitted to the court's jurisdiction to enforce it. Objectors appealed, and on December 20, 2011 the Third Circuit, sitting en banc, affirmed in an opinion by Judge Marjorie O. Rendell: differences among the states' antitrust and consumer laws did not defeat certification of a settlement class, because "the proposal is that there be no trial."

Fifty Offerings

Federal regulators closed IndyMac Bank in July 2008, so when the Wyoming State Treasurer and the Wyoming Retirement System sued in the Southern District of New York the next year over mortgage-backed certificates from fifty IndyMac offerings of 2006 and 2007, the issuer could not pay. The complaint, under the Securities Act of 1933, alleged that the offering documents misstated how the loans behind the certificates had been underwritten. Tabacco, with Patrick T. Egan, Nicole Lavallee and Jay Eng, represented the lead plaintiffs against the underwriters, Credit Suisse Securities (USA), Deutsche Bank Securities, J.P. Morgan Securities, RBS Securities, Morgan Stanley & Co. and UBS Securities, each entitled to show, offering by offering, that it had conducted due diligence. Former officers and directors settled for $6 million in December 2012. The underwriters agreed to pay $340 million, and on February 23, 2015 Judge Lewis A. Kaplan approved the $346 million settlement as "in all respects, fair, reasonable and adequate."

Thirty-Nine Percent

In re Lithium Ion Batteries Antitrust Litigation gathered before Judge Yvonne Gonzalez Rogers in the Northern District of California the claims of companies that had bought rechargeable lithium-ion cells, and the notebook computers, cell phones and digital cameras built around them, from LG, Panasonic, Sony, Hitachi and Samsung, alleging that the manufacturers had fixed prices. On May 17, 2013 she appointed three firms co-lead counsel for the direct purchasers, Berman Tabacco among them, and Tabacco oversaw the firm's work with Todd A. Seaver. The settlements came to $139.3 million, 39 percent of the damages the plaintiffs had estimated, and by May 7, 2018, the day before Judge Gonzalez Rogers granted final approval, 70 percent of the class had filed claims; the one substantive objection had been withdrawn.

June 2005 to March 2011

Each business day a panel of banks submitted the rates from which the Euro Interbank Offered Rate was calculated, and derivatives, loans and other instruments worth more than $200 trillion a year were priced from it. In Sullivan v. Barclays, before Judge P. Kevin Castel in the Southern District of New York, investors alleged that from June 1, 2005 through March 31, 2011 traders and submitters at the panel banks coordinated their submissions to move Euribor in the direction that favored their derivatives positions. Berman Tabacco represented the California State Teachers' Retirement System, a named plaintiff, and Tabacco oversaw its part in the case. Barclays paid $94 million, HSBC $45 million and Deutsche Bank $170 million in settlements Judge Castel approved on May 15, 2018; Citigroup and JPMorgan Chase paid $182.5 million, approved on December 19, 2018; Crédit Agricole settled for $55 million in 2022 and Société Générale for $105 million in 2023, bringing the settlements to $651.5 million from seven banks. The firm also represented CalSTRS in Laydon v. Mizuho Bank and Sonterra Capital Master Fund v. UBS, before Judge George B. Daniels, over yen LIBOR and Euroyen TIBOR between January 1, 2006 and June 30, 2011; the approved settlements there total $307 million.

Three Weeks Before Trial

The Automobile Antitrust Cases, coordinated in San Francisco Superior Court as JCCP Nos. 4298 and 4303, alleged that automakers had conspired to keep new vehicles sold in Canada, closely similar to American models and cheaper, from being exported to the United States, so that Californians who bought or leased new cars between January 1, 2001 and April 30, 2003 paid more. Berman Tabacco led the California action and chaired the executive committee in the related federal litigation. The trial court granted Ford Motor Company of Canada summary judgment; on July 5, 2016 the Court of Appeal reversed as to Ford Canada, finding in the record of a May 15, 2001 meeting of the Canadian Automobile Dealers Association a triable question of agreement. "The participants were aware of the legal problems inherent in concerted activity among the manufacturers," the court wrote. "Yet they met and discussed working together on restricting exports anyway." Ford Canada then obtained judgment on preclusion grounds from Judge Curtis E.A. Karnow, and on September 25, 2019 the Court of Appeal reversed again: the California purchasers had not been parties to the federal proceeding and were bound by nothing decided there. Earlier settlements with Toyota, the dealers' association and General Motors of Canada had brought $55.85 million. Three weeks before trial, after nearly nineteen years, Ford Canada agreed to pay $82 million, and Judge Anne-Christine Massullo granted final approval on October 31, 2022.

Lead Independent Director

Tabacco has sat on the board of Bay Area Legal Aid since 1998 and on the advisory board of the American Antitrust Institute since 2008, and the federal court in San Francisco has appointed him to its magistrate judge merit selection panel and to the committee that revised its model protective order. In June 2007 he joined the board of Overstock.com, the online retailer that became Beyond, Inc. and is now Bed Bath & Beyond, Inc. He chairs its Nominating and Corporate Governance Committee, serves on its Compensation Committee and is its Lead Independent Director.