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Welcome to Raising the Bar with RebuttalPR, the podcast where we elevate the stories of the plaintiff's bar and dive into the key trends shaping the civil justice system today. I'm your host, Ray DeLorenzi, and in each episode, we'll bring you insightful interviews with leading attorneys, expert perspectives, and the people who are shaping perspectives on current legal events, and in-depth discussions on the issues that matter most. Now, let's jump in.
I think that using the law is an important tool for social change and social justice and environmental justice, and that's always something that's important that I've tried to achieve, whether it was working for the prisoners who had been taken advantage of, or representing workers, or fighters, or chicken growers, or consumers in antitrust cases.
Ray: Hey, everyone, welcome to a new episode of Raising the Bar with RebuttalPR. I'm your host, Ray DeLorenzi, and today I'm honored to be joined by Eric Cramer of Berger Montague. He's chairman of Berger Montague and also co-chair of the firm's antitrust department. He's led major class actions across sports, agriculture, pharmaceuticals, and higher education, over $4 billion in recoveries. Eric, thanks so much for joining the podcast today.
Eric: To be here.
Ray: All right. So, Eric, I always like to start these with, you know, how the heck you became a lawyer. So, why don't you tell me about your upbringing, and, you know, did you always think you're going to be a lawyer or was there something that sort of clicked that led you down that path?
Eric: So my father is a lawyer, or was a lawyer. He's retired now. And for most of my childhood, I thought I wanted to be a lawyer. My father represented the producers of Woodstock. When I was two and a half, I personally was at Woodstock. He was there. I was there as a little kid, and he talked about all the things he did as a lawyer for the producers of Woodstock for years and years. And he was a litigator. He did varied and sundry different things as a lawyer. And it always excited me. And it made me want to be a lawyer.
Ray: So, although you were two and a half, do you have any memories, you know, core recall of what Woodstock was like?
Eric: I have no memories other than what I've seen in the movies and from what my father has told me. But I was mostly in the hotel with my mother, who was pregnant with my brother. So it was a family affair.
Ray: Got it. So that's obviously more on the entertainment side. When you're coming from a family of lawyers, do you feel like your father wanted you to be a lawyer, or is it just something you gravitated to naturally?
Eric: I think he probably wanted me to be a lawyer, but he did not impose that or impress that upon his children. My brother's a teacher. I became a lawyer, but it just, I think I had an affinity for it. I was on the debate team in high school and in college, and arguing and writing arguments was always part of what I liked to do, what I was pretty good at. And so it was a natural next step for me.
Ray: So you go to Princeton, you go to Harvard Law. That is typically a feeder for going to big law and doing that sort of work. When you're in law school, what did you have a vision of wanting to do once you were finished in law school?
Eric: So I think I probably was the only one in my law school class who did not own a suit throughout my three years of law school. There was a regular march every year for on-campus interviews with the big firms, and I did not participate in that march. Growing up, and while I was in college and law school, I wanted to be an environmentalist, and I spent my first summer working for the Environmental Defense Fund, my second summer of law school working for the Sierra Club Legal Defense Fund, and that was the path I had considered taking. So I always had a public interest bent and never really wanted to follow the crowd into the big firms, big law.
Ray: Do you feel like in law school, like you were almost like an outcast? Did professors say, what are you doing? Or was it, you know, was it also, hey, this person's taking a different path than everyone else, and there's something to admire there?
Eric: I think that the professors, a lot of them, I don't think it's their desire for almost all of their students to go do big law. I think they see themselves as educating lawyers who will represent big corporations, but also do great things in the world for people who don't have representation. So in my mind, I felt encouraged even though most of the people were going the other direction.
Ray: So you're at Environmental Defense Fund, you're at Sierra Club doing that work, you know, during summers or whatnot. Did that embolden you to want to work on environmental issues? Or did it, you know, sort of deflate the idea of how much you really can make a difference here?
Eric: No, it definitely did embolden me. My third year in law school, everyone has to write a third-year paper. And my third-year paper was actually a brief, an amicus brief, submitted on behalf of the Environmental Defense Fund in the Second Circuit Court of Appeals. And that really was what I wanted to do. So it did embolden me. Yes.
Ray: How'd you fare in that case?
Eric: We won. My side won. Yeah. It was a good result.
Ray: So hopefully you got a good grade to go with that as well.
Eric: You have to. It's good to win. The grade came well before the outcome of the case.
Ray: So, um, after you graduate from law school, what was your next step?
Eric: So, I had always intended to go to New York City. I grew up outside of New York City, a lot of the environmental organizations I was involved with were in New York City. But then, as often happens in life, I met a woman who would become my wife at a wedding and decided I needed to be in Philadelphia to be with her. So I zigged and had to find something pretty quickly, and I found work at a very small firm in Philadelphia, run by a guy who'd been to Harvard Law School, worked in the Carter administration, and did all kinds of interesting work on the plaintiff side and the defense side. So I worked there for about a year and a half doing all kinds of things. I did a divorce. I did plaintiff's work. I did patent work. I did all kinds of things.
Ray: So, do you look back at that experience in terms of helping add focus to what you like doing or didn't like doing, like, you know, doing that divorce where you're like, oh my God, never again? Or was it also good to build up skills in other areas that you may not have wanted to focus on anyway?
Eric: So part of what I saw that first 18 months of my career as was building up skills. I was thrown, because it was a tiny firm and we did all kinds of things. I was just thrown in. When I showed up on my first day, there was an appellate reply brief due. I started on a Monday, it was due on a Friday, and my boss had like dictated something for me to turn into a reply brief in a case that had been going on for years. And my year and a half there was like that: go take a deposition, go do this argument, go handle this divorce. So it was a little bit frightening as someone right out of law school with no experience, but I got a lot of experience quickly taking depositions, doing arguments, writing briefs, doing it on my own with very little oversight. So it was time to leave at about a year and a half doing that. But I had built up a lot of skills during that time period.
Ray: You know, for younger lawyers, especially those who go the big law track, it's a little bit different in plaintiff's law. Like, taking a deposition right out of law school is, you know, viewed as insanity. Like, it doesn't happen. Um, now that you run a law firm, the things you got to do in your first 18 months of your law career, how has that impacted how you view how younger lawyers should build up those skills?
Eric: Yeah, it's very important for lawyers to get the opportunity to get involved in significant legal work early. I do think the sort of medical school "See One, Do One, Teach One" is kind of a good model. Like, you should have junior lawyers involved working closely with a senior lawyer, say for a deposition: prepare for the deposition, the junior lawyer is involved, comes to the deposition, assists in the deposition, sees how it's done and what the results of it are. And then next time there's an opportunity at maybe a lower-stakes deposition, we really do need to give the junior people the opportunity. So I believe that doing arguments, handling meet and confers with defense counsel, getting that kind of work early in your career is important.
Ray: So, going back to that role, you said you're there about 18 months. It's time to go. What was next professionally for you?
Eric: Yeah, so the next stop was my last stop. I needed to find something different. I was going to stay in Philadelphia. Place was more important then than it is now, I think. Now, you could sort of work anywhere. But at the time, place was important. I wanted to be in Philadelphia. I talked to one of my law school roommates who was from Philadelphia, and he said, why don't you try Berger Montague? Or it was Berger and Montague at the time. We removed the ampersand. And he said that was a good firm, known to do good plaintiff's work. I hadn't even heard of it, so I called up. I had an interview with Dan Berger and his father, David Berger, and they hired me a few months later. And I started in February 1995 and have been here ever since.
Ray: So, what were you tasked with when you joined the firm?
Eric: So, because I had this environmental background and bent, what drew me there were two kinds of cases that Berger Montague was working on at the time. One was representing classes of people who lived around both the Rocky Flats nuclear weapons facility and the Hanford nuclear weapons facility, who were suing those facilities. In Rocky Flats, for property value diminution as a result of plutonium and other chemicals and radionuclides that landed on their property. And then Hanford, the people around there were sick or had different kinds of diseases as a result of radiation poisoning. And so I worked on those two cases, which were class actions that were very interesting. I also worked on cases representing prisoners who were irradiated as part of Cold War experiments. So we represented prisoners in the Walla Walla State Prison in Washington and in the Oregon State Penitentiary who were irradiated as part of Cold War experiments. And as part of the Oregon case, in the Ninth Circuit Court of Appeals, because our case was thrown out on statute of limitations grounds, because the irradiation happened much earlier, we won a reversal from the Ninth Circuit based upon my briefs and argument, and ended up settling that case favorably for the clients. So that's what I began doing. It was environmental-ish-related work.
Ray: So all those cases you mentioned have this thread that they involved nuclear material. What was your approach, particularly as a young lawyer, in learning? You have the science of how, you know, nuclear material works, then you have the medical science part of how it would impact the body, and then also another, you know, sort of science part of how it impacts the environment. How do you learn all of that and then put it into practice?
Eric: Yeah, and that's one of the interesting things about being a litigator, especially a litigator of big complex cases and also antitrust cases that I'm sure we'll talk about. But you do have to take complicated phenomena, like how does radiation poisoning cause harm in humans or cause harm to the environment, and how can that be proved using econometric or other kinds of statistical methods. And you need to be able to understand the workings of that well enough to explain it to a judge who's not an expert, who's an intelligent person, we hope, but not an expert, and then to a jury who are certainly not experts. I think part of what I was good at, what I think good lawyers need to be able to do, is take complicated phenomena, understand it, and then teach it in a way that is straightforward and simple.
Ray: I'm also curious about your approach to working with the individuals who have been harmed. And you have, you know, in those litigations you just outlined, two different groups: people who, you know, oftentimes their whole wealth is tied up in their property, that value declined. And then you have prisoners, people who are in prison because usually they have done something that society believes that they need to be removed from, but also were used as experiments, you know, which is horrific. I mean, what was it like working with those groups of people and learning how to interact with them and explain what was going on?
Eric: Yeah, I think that's another important aspect of being a lawyer in complex cases and working with, on my side, it's not always sophisticated corporations or entities. Sometimes it's people who've been wronged in some way. The prisoners in particular, one of the lead plaintiffs in the Oregon State case was a man, Hal Bebo, and I remember him to this day. He was out of prison at that point. And the circumstances of him being in prison were awful and understandable. And he served his time and he was out and he had a family and couldn't have biological kids because of part of the experiments; they had to have vasectomies. So he had this lingering harm done to him while he was in prison. And he really wanted to vindicate the rights of himself and others who had been harmed, who really couldn't consent and who were taken advantage of. And I was able to work closely with him. I had a lot of admiration for him, his bravery in stepping forward in difficult circumstances and taking on state entities who had overseen the wrongdoing and the large state hospital that had overseen the wrongdoing. So I think working with clients like that is a big part of what we do as plaintiffs' lawyers, and I find it very rewarding.
Ray: Let's fast forward a little bit in your career. You're co-chair currently of the firm's antitrust practice. How did you get into doing antitrust work?
Eric: Yeah, so I was doing these environmental and human experimentation cases, and the lawyer I was working with, Dan Berger, called me into his office in the late 90s, something like '98. I'd been at the firm for three years, and he said, Eric, we have these new cases. They're called antitrust cases, and we're going to be representing wholesalers and buyers of pharmaceuticals against pharmaceutical companies for actions that they've taken to delay, defer, and prevent generic entry, generic competition, and thereby keep prices high by this conduct. And I got involved in some of those early cases, and it turned out I had a facility for economics and econometrics, both the statistics of how to prove that an antitrust violation causes harm, but also the underlying economics of it. I really enjoyed it. In some ways, it's similar to trying to figure out how environmental radiation causes harm in humans. Some of the similar types of thought processes. And so I really enjoyed it. I had a facility for it, and off I went in the late 90s doing those cases. And I did those cases for over a decade and then expanded my practice to all kinds of other antitrust cases. But that's how I got involved.
Ray: Curious about how a lawyer like you works with government regulators. Let's take the pay-for-delay context, where you had the FTC over time become more involved. But you know, in the antitrust world, it could be the FTC, could also be the DOJ. And usually they are allies, although not always. And I'm just curious about your work with them and sort of how does that all intersect? And how do those relationships work, even regardless of administration?
Eric: Yeah, it's an important part of my practice and complex litigation practice, making sure that you're working carefully and closely and collegially with the governmental entities, also state attorneys general, states that are also involved in those cases and other cases. And so, depending upon the administration or what the priorities are, sometimes they could be on your side and working arm in arm, and you're working together towards a common goal. They're representing their client and their interests. I'm representing my client and my interests. And we're trying to make sure that we're coordinated and not working at cross purposes. Sometimes the government has other ideas and other interests. They may want to stay your case while they pursue some kind of criminal investigation, and they don't want the private parties to get in the way. But it's important to be able to work with them and to educate them about your case and your clients' interests, and why supporting the work that we're doing is important. So, we often, certainly in the Biden administration and continuing through the present, and prior, have spent a lot of time trying to convince the Department of Justice, e.g., to put in statements of interest on our side in district courts and appellate courts, because there are certain principles that we're standing up for, principles of law that the government also thinks are important. So, it's an important aspect of what we do.
Ray: So, you know, you would know the history of antitrust better than I would, but to very much simplify things: when you had the Microsoft trial, antitrust kind of had a moment, and then it felt like it was a bit, you know, not on the downswing, but the enforcement may not have been there. And this was across administrations, but in the last, let's say, three to five years, it feels like antitrust has had a bit of a comeback. And, you know, it's also become sort of a bit of a meme, like, oh, everything's an antitrust problem. What's your take on that? What has led to it having a moment again? And do you feel like also it may be going overboard in a way, or being used as a tool that, you know, isn't right for the job?
Eric: So I think you're right that antitrust now is having a moment, or over the past four or five years, it's continued. It was a very important priority of the Biden administration and the Department of Justice and Federal Trade Commission under the Biden administration. But they were, I think, reacting to and reflecting a certain zeitgeist relating to the importance of antitrust. And to me, part of that is stemming from, I think, the average person's view that there are these large corporations that are getting bigger and bigger and controlling more and more of our lives, how we interact with the world, how we communicate, right? Every website we use, the software we use daily, the credit cards that we use, constantly coming up against large, powerful forces that use that power to inflate prices or suppress pay or to reduce quality and gatekeep the internet, e.g.. And especially with the rise of large big tech corporations, I think everybody was feeling it, both on the right and the left, sometimes for different reasons. The right thought, and still do believe, that these large big tech companies are suppressing their speech, that they're using their power to suppress conservative speech. The left feel that the large companies are using the power to interfere with democracy and prevent people from participating in democracy. And then, of course, there are all the regular antitrust principles about higher prices that large corporations who are monopolies or form cartels bring, or less quality. So, yes, there's a moment. So, to answer the question, yes, I think currently antitrust, and still, I think, through the Trump administration, is having a moment. And I think that's reflecting what's going on in the greater economy. And you asked another question, which was sort of whether I think antitrust is kind of being overused as a solution to problems. I think if used correctly anyway, antitrust can be a powerful weapon on behalf of democratic values, on behalf of workers, on behalf of a free society. And so, yes, there are certain ways in which antitrust can be misused. But I do think the notion that there are large corporations that have been gaining too much power over our lives is real, and antitrust is at least one tool that can be used to address that issue.
Ray: So you just mentioned how the left and the right seemingly want to use antitrust tools more, but coming at it from sort of different messaging flanks and different arguments, both of which may not be grounded in what the law provides. How do you, with those audiences and also with the judges, bring it back to the economic arguments, which is what the law often calls for, versus more, I guess, ideological arguments?
Eric: So, I mean, the interesting thing, and one of the things that the Biden administration did, was actually go back to some of the old Supreme Court and appellate court antitrust cases, which did, in fact, talk about big versus small and democratic, and other values than simply economic values: the value of the small business, the value of the worker. So, those were principles that were embedded in the law, in cases that are still good law, that changed over time with Scalia and the Chicago School to focus very strongly on economic principles and economic issues. Antitrust is about output and increasing output, and conduct that reduces output is bad, and any conduct that increases output is good, no matter what these other principles are. And I do think that there needs to be a balance between those two poles, right? Antitrust needs in some way to be, I think, anchored to economic principles, but not economic principles alone. There are other principles that can be vindicated through antitrust law and that are consistent with the precedent. And so I just think there needs to be a balance between the two.
Ray: I want to take a moment to talk about the UFC fighter litigation and settlement. And, you know, when people hear about sports and antitrust, they may be aware certain sports have antitrust exemptions, you know, the NFL and Major League Baseball in particular. UFC is not a traditional sport, although it is certainly a growing and, you know, popular one. Walk me through the genesis of that case and then the process of litigating that.
Eric: Yeah. So the way that case arose was that there was a lawyer and a group of mixed martial arts fighters, many of whom became the lead plaintiffs in the case, who were fighting against the way that the UFC had essentially bought out and shut down or made into the minor league all of their rivals, and had used that power to suppress the pay of the fighters, to take advantage of the fighters, to reduce their opportunities, and to really make the sport worse and less of a sport. And so this group of fighters knew that what they were taking on was going to be a difficult battle, because the people who ran the UFC, and were using the UFC to suppress fighter pay and to harm the rights of fighters and the interests of fighters, were very powerful and were making a lot of money from it. And so these people knew that they were going to be taking risks. But we saw that the antitrust laws could be helpful here in a similar way to the international boxing case, where boxing was controlled by some very powerful entities and a Supreme Court case was used to break up the kind of boxing cartel and boxing monopolies. And we wanted to do something similar in UFC. And what we did was we dug in, we looked at the facts, we worked with economists, and it turned out that what the UFC was doing was buying out and then locking up all the fighters into long-term exclusive contracts that lasted effectively for their entire careers, because their careers are short. And so no rival could get access to a sufficient amount of fighters to compete with the UFC. If you fought with the UFC, you couldn't fight for anyone else. So they created a closed-loop system. If you didn't fight for the UFC, you were basically not fighting in Major League MMA. And they perpetuated this through threats. They basically said, if you don't re-sign this contract, you're never going to fight again; if you go try to talk to a rival organization, you won't be able to ply your trade anymore. And we saw that the facts were correct, and then we were able to link the facts to the economics. Our economist was able to show that as a result of locking up fighters, of foreclosing the fighters, preventing them from going to rival organizations, the higher the share of fighters that were locked up into long-term contracts, the lower the share of the revenues that the fighter got paid. And so you see in sports like football and basketball and hockey, the athletes get about 50% of the pay. In boxing, they get about 70% to 80% of the revenues that are generated by the sport. But in the UFC, it was well below 20% of the revenues being generated. And in some comparisons, MMA athletes, UFC fighters, were getting a lower share of the revenues than NCAA athletes were before NIL rights. So they were really being taken advantage of. We were able to convince the judge of this, and that's what allowed us to ultimately get a significant settlement.
Ray: So, you know, I operate in the world of public relations and communications, and I've worked on cases against sports leagues. I can only imagine how aggressive the UFC would be. What was it like dealing with, you know, sports media is kind of a different beast? And I'm sure there was curiosity in the case, and I'm sure UFC was not being shy about, you know, what their position was. And I'm just curious about that back and forth and how you handled it. And, you know, our sort of view is do no harm in terms of what's going on in the case, but also you don't want defendants just making their arguments without being able to counter-punch. So, what was that like?
Eric: Yeah. So we did have, I don't like to fight my cases out in the press. I think judges don't tend to like it. But we did need to communicate with the larger kind of fan base and the larger fighter base. We needed them to know that we were fighting for them and on their side. There's a lot of cynicism out there on behalf of fighters who've been taken advantage of for a long period of time, and they may have the attitude that the lawyers are just in it for themselves and not for the fighters. And the UFC tried to play into that in their press relationships. And so, what we tried to do was get out the notion that us and the named fighter plaintiffs were out there to try to improve the space and try to get a recovery for fighters who've been wronged for a long period of time. Interestingly, we encountered, there's a whole cadre of reporters and writers who focus on mixed martial arts. And we found some of them to be independent and smart and willing to write whatever they thought was correct. And we encountered some writers who seemed to be mouthpieces for the UFC. And whatever their most recent talking points were, we would see them in court or see them being told to us in off-the-record meetings, and then all of a sudden they would show up in certain reporting. So the UFC was able to kind of get out into the press their views through writers that were sympathetic to them.
Ray: So to wrap up here, and again, you've been very generous with your time, something I always admire about antitrust lawyers. Look, they are great litigators, do really important work. But also, for someone like you, you've been very involved in Public Justice, the American Antitrust Institute. What has compelled you to be involved in those groups and not just be a really great litigator, but also say, hey, like, the future of the civil justice system is also important?
Eric: Yes. I mean, I think one thread going through my entire career as a lawyer has always been that I think that using the law is an important tool for social change and social justice and environmental justice. And that's always something that I've tried to achieve, whether it was working for the prisoners who had been taken advantage of by the government and private entities, or representing people outside nuclear weapons facilities that didn't care about the consequences of their actions, or representing workers, or fighters, or chicken growers, or consumers in antitrust cases. And in all of those aspects of what I do, I feel like we're trying to both help the clients and classes, but also help the civil justice system and society more generally. And I do think the civil justice system is really important. So, as an adjunct to my day job representing clients and classes in antitrust cases, I think it's important to do work with Public Justice, which is both a public interest law firm but also advocates and works on cases relating to access to justice. They've fought against forced and mandatory arbitration, which has blocked a lot of people from being able to get into the courthouse. And then I also do work with the American Antitrust Institute, which is an organization that cares about the enforcement of the antitrust laws, both the public enforcement and private enforcement, and fights against efforts to defang the antitrust laws as a tool that can be used to make markets more free and the economy more just.
Ray: With that, thank you, Eric, for taking on great cases and your work also to defend and promote the civil justice system. Eric Cramer with Berger Montague, thanks so much for joining the podcast.
Eric: Thanks for having me. I enjoyed it.
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