Applied Antitrust Law
There is no exam for this class, but a paper of 15 to 20 double-spaced pages is required. You can write on anything that interests you provided that (1) it addresses a procedural antitrust question or a substantive antitrust question in a procedural context, and (2) we agree on the specific question(s) the paper will address.
I would like the papers to be in the form of a memorandum of law (MOL) to me. A good structure for a MOL is to start with the sentence: “You have asked me to [state the task].” For example, “You have asked me what standards courts employ in resolving challenges to the relevance or reliability of economic expert testimony in class certification proceedings, ” or “You have asked me what more than parallel conduct must be pleaded in a price-fixing complaint to make a claim of conspiracy plausible after Twombly in order to withstand a motion to dismiss under Rule 12(b)(6).” You might be surprised how difficult it can be to frame a question precisely. (This is also a common problem in practice.) If experience is any guide, we will probably have several rounds of e-mail exchanges before the precise wording of the question gets settled.
The forms of MOL differ, but a good rubric is to follow the question with a few sentences motivating the question, a second paragraph providing a precise statement of the answer, and then the analysis. In a long memorandum, you should also include a third paragraph at the beginning providing a roadmap of the analysis. Of course, none of this is written in stone. The key to any legal writing is that it be tightly reasoned with a clear logical flow, be well-supported by the relevant authorities,, and be intelligible and compelling to the reader.
The topics below are merely off-the-cuff suggestions. From time to time I will add new ones. Feel free to develop one of them into a paper, but you are entirely free—indeed, encouraged—to explore a topic of your own that interests you.
Two other things to keep in mind.
Finally, antitrust law in the United States is essentially a common law subject, that is, the law is in the cases taken collectively rather than in some detailed prescriptive statute. This means that the facts of the case, along with a clear statement of how the court reached its conclusion, are usually critical elements whenever a case is being cited for as major support for a proposition in a paper. The ability to write a good case summary is an important skill for an antitrust lawyer. Nothing will make your paper more persuasive (not to mention longer as you strive to it the page length requirement) than good case summaries.
NB: What appears below are suggetions for paper topics. None of them, however, identify a precisely worded question for a momorandum of law. We will still have to work through the exercise of identifying a question for you to address in the MOL.
The reach of the Sherman Act
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1. The Foreign Trade Antitrust Improvements Act (FTAIA), 15 U.S.C. § 6a, governs the conditions under which the antitrust laws, and most importantly Section 1 of the Sherman Act, applies to “foreign commerce”. For this purporse, "foreign commerce" is where one company (typically an alleged conspirator) sells and delivers products to another company, where both the seller and the buyer are located outside of the United States. The issue is most pronounced when the buyer (which may be a foreign subsidiary of a U.S. company), then ships the product—either unaltered or incorpated into another product (e.g., an LCD screen incorporated into a TV set)—into the United Stats. The FTAIA is almost unreadable and the case law has been confused and confusing from the beginning (including the last few paragraphs of the Supreme Court’s decision in F. Hoffman-La Roche Ltd. v. Empagran S.A., 542 U.S. 155 (2004)). Today, the debate over Section 1’s application to foreign commerce is as vigorous as it has ever been, with three circuits recently issuing major decisions: Lotes Co. v. Hon Hai Precision Industry Co., 753 F.3d 395 (2d Cir. 2014); Motorola Mobility LLC v. AU Optronics Corp., 775 F.3d 816 (7th Cir. 2014); and United States v. Hui Hsiung, 778 F.3d 738 (9th Cir. 2015). I will make an exception to my usual requirement that the paper involve a procedural question and accept a paper that reviews the current state of the law. If you want to put this is its most common procedural context, then you could address the coditions under which summary judgment could be granted or denied on claims relating to foreign commerce.
2. Section 1 of the Sherman Act prohibits contracts, combinations and conspiracies in restraint of trade. In Standard Oil Co. v. United States, 221 U.S. 1 (1911), the Supreme Court interpreted Section 1 to prohibit only concerted action whose object was an unreasonable restraint of trade. The Standard Oil Court also held that some types of restraints of trade—most notably, horizontal price fixing—were so competitively pernicious and without redeeming procompetitive potential that they are per se unreasonable. The modern convention regards that is a conclusive presumption. Indeed, the ABA's Model Jury Instructions in Criminal Antitrust Cases (2009) provides in Model Instruction 3.E:
The Sherman act makes unlawful certain agreements that, because of their harmful effect on competition and lack of any redeeming virtue, are conclusively presumed to be an unreasonable restraint on trade and are always illegal, without inquiry about the precise harm they have caused or the business excuse for their use.
Id. at 54 (emphasis added). Yet several Supreme Court cases prohibit the use of conclusive presumptions to establish an element of a criminal violation. The idea is that under the Fifth Amendment the defendant has a right to have a jury decide whether each and every element of the crime is present, and a conclusive presumption removes the presumed element from the province of the jury. Is it proper for a court to instruct a jury that horizontal price fixing is conclusively presumed to be an unreasonable restraint of trade within the meaning of Section 1 of the Sherman Act? (In thinking about this, you might want to ask what is the source of the conclusive presumption. It may matter is the presumption is a rule of law announced by the Supreme Court or a novel ad hoc ruling by a district court judge.)
3. In Southern Union Co. v. United States, 132 S. Ct. 2344 (2012), the Supreme Court held that any fact, other than the fact of a prior conviction, that increases the maximum penalty that can be imposed on a defendant must be submitted to the jury and proved beyond a reasonable doubt. The maximum criminal penalties that can be imposed under the Sherman Act—$100 million in fines for corporations, and $10 million in fines and 10 years imprisonment—depend only on the finding of a violation. But the maximum penalties under 18 U.S.C. § 3571(d), the alternative fine provision of the Comprehensive Crime Control Act, are twice the gross gain to the defendant, or twice the gross loss to the customersof the defendant, as a result of the defendant's unlawful activities. Section 2R1.1(d)(1) & Application Note 3 of the U.S. Sentencing Guidelines contain a presumption that the pecuniary loss to the customers of the defendant is 20% of the defendant's sales. Is this presumption still good after Southern Union, or does the government have to prove the amount of the loss on a case-by-case basis to a jury beyond a reasonable doubt?
4. A defendant enters a plea agreement with the DOJ and agrees to waive indictment to horizontal price fixing. The DOJ files an information, which as always is very sketchy on the facts, as well as a the plea agreement, which recites in much greater detail the evidence that the government would have presented in court in a trial on the merits. The defendant pleads guilty under a plea agreement and the court accepts the guilty plea in all respects. For the purpose of statutory collateral estoppel under Section 5(a) of the Clayton Act, what are the "facts" as to which the defendant is estoppel in a follow-on private action by a victim of the price conspiracy? Is it only the "facts" stated in the indictment or does it include the facts stated in the plea agreement? Or it is something else?
5. The Fifth Amendment prevents the U.S. government from compelling a natural person to provide evidence that could expose the witness to criminal prosecution in the United States. Under what circumstances, if any, does the Fifth amendment prevent the U.S. government from compelling a natural person to produce evidence that could expose the witness to criminal prosecution in another country?
6. The DOJ can seek restitution for injured victims in a criminal price-fixing case. If restitution is awarded by a court in a litigated criminal proceeding, what standards would the court apply in determining the amount of restitution/disgorgement to order? How would the resulting monies to distributed to victims? Can there be a distribution to an injured victim that does not have prudential standing to bring its own antitrust damages case (e.g., an indirect purchaser)?
7. The Antitrust Civil Process Act, 15 U.S.C. §§. 1311-14, authorizes the DOJ to issue Civil Investigative Demands (CIDs), which are essentially precomplaint subpoenas, to enable it to obtain documents and testimony in its antitrust investigations. However, CIDs are not self-executing, that is, there is no penalty if a party receiving a CID fails to respond. Rather, the ACPA provides, in the event a recipient does not respond, that the DOJ may petition a federal district court for a order to compel. If the recipient fails to respond after receiving a court order, it is subject to the sanction of judicial contempt. However, the ACPA also provides that a recipient that petition a federal district court to quash or limit the CID.
Suppose that a company receives a CID and does not want to respond. What are pros and cons of waiting for the DOJ to move to compel and then argue the overbreadth of the CID in that proceeding, as opposed to petitioning the court affirmative to quash or limit? If the party decides to go the former route, is there anything it should do with the DOJ (e.g., informing the DOJ of its objections) in order to preserve its arguments when the DOJ moves to compel?
8. In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court held that while the complaint does not need detailed factual allegations, the factual allegations, if assumed to be true, "must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)," and sufficient "to state a claim for relief that is plausible on its face." Rule 8(a) of the Federal Rules of Civil Procedure states that "[i]n responding to a pleading, a party must affirmatively state any avoidance or affirmative defense." Does the Twombly plausibility standard apply to affirmative defenses? Should it?
9. Plaintiffs often use the phase "on information and belief" when pleading allegations for which they do not have personal knowledge but suspect are true.
a. What exactly does it mean to plead on information and belief?
b. What degree of diligence must be performed before an attorney can include allegations in a complaint based on information and belief in a complaint without violating FRCP 11?
c. Can a court credit—or must it disregard—allegations made on information and belief in deciding a Twombly motion to dismiss a complaint under FRCP 12(b)(6)?
10. Section 5(a) of the Clayton Act , ± 15 U.S.C. § 16(a), provides a form of offensive collateral estoppel can be used by a private plaintiff following a prior government criminal or civil action in which the government obtained a final judgment that the defendant violated the antitrust laws. Section 5(a) says that such a judgment “shall be prima facie evidence against such defendant in any action or proceeding brought by any other party against such defendant under said laws as to all matters respecting which said judgment or decree would be an estoppel as between the parties thereto.” How can the offensive collateral estoppel provision of Section 5(a) be used in private litigation, what success private plaintiffs have had in invoking this provision, and how Section 5(a) offensive collateral estoppel differs in theory and practice from Parklane offensive collateral estoppel? An interesting but much narrower question is how can Section 5(a) be used use of Section when the predicate government prosecution is a criminal conviction resulting from a plea agreement.
11. The Supreme Court has long held that parallel conduct among competitors (say as to their prices), without more, is insufficient as a matter of law to support a permissive inference of conspiracy.
a. First, what more than parallel conduct is sufficient to make a claim of conspiracy plausible. Pre-Twombly (and probably post-Twombly) cases often called these additional things "plus factors." What are these plus factors post-Twombly, and must the notion of plus factors be reinterpreted in the wake of Twombly? What plus factors (or combination of plus factors) when added to parallel conduct create a complaint that can withstand a motion to dismiss under Rule 12(b)(6). (In this connection, you may also want to consider different varieties of parallel conduct—constant stable prices over long periods of time may not be the same type of parallel conduct as constant prices for more limited period of time marked by large price jumps by all competitors, and parallel non-pricing conduct may not be the same as parallel pricing conduct. Take a look at White v. R.M. Packer Co., 635 F.3d 571 (1st Cir. Feb. 18, 2011), and In re Southeastern Milk Antitrust Litig., 555 F. Supp. 2d 934, 943-44 (E.D. Tenn. 2008)).
b. Second, what is the relationship of Twombly in the Rule 12(b)(6) context to the Monsanto/Matsushita rule in the Rule 56 context? On a motion for summary judgment, when the record contains only circumstantial evidence a permissive inference of conspiracy cannot be raised unless the evidence in the summary judgment record "tends to exclude the possibility" of unilateral conduct. In cases when the complaint's factual allegations of conspiracy are only circumstantial, does Twombly simply import the Monsanto/Matsushita rule into the motion to dismiss context? If not, what is the difference? If so, what does it mean when you just have allegations in a complaint to say that the allegations "tends to exclude the possibility" of unilateral conduct?
12. How does the Twombly rule apply to the named defendants in a conspiracy case? Must the complaint contain enough factual allegations to make the participation of each defendant in the conspiracy plausible?
13. Members of a conspiracy are jointly and severally liable for the acts of their coconspirators in furtherance of the conspiracy. A conspirator remains a member of a conspiracy until the conspiracy ends or the conspirator withdraws from the conspiracy. What does a defendant have to prove in order to demonstrate that it has withdrawn from a conspiracy?
14. Consider the following hypothetical: Through a series of widely publicized acquisitions beginning in 2000 and ending in 2005, the defendant acquires all of the sources of a raw material that is the only essential input to the manufacture of widgets, refuses to sell to its widget competitors so that they have all exited the business by the end of 2005, and so monopolizes the widget market in violation of Section 2 of the Sherman. Following the exit of its last competitor, the defendant raises its prices to supracompetitive levels. The facts are not in dispute, since the defendant's internal documents set forth the entire scheme, including the supracompetitive pricing. In 2011, a direct purchaser, who only begin purchasing widgets from the defendant in early 2011, files an antitrust action alleging that the defendant has monopolized the nationwide widget market and seeking treble damages for the overcharge the plaintiff paid the defendant. The defendant moves to dismiss the complaint as time-barred, since the plaintiff purchased widgets more than four years after the last of the defendant's acquisitions. Should the court grant the defendant's motion to dismiss? What are the best arguments that the defendant can make in support, and what are the best arguments that the plaintiffs can make in opposition?
15. The doctrine of fraudulent concealment tolls the running of the statute of limitations where (1) the defendants acted affirmatively to conceal their violation of the law, (2) the plaintiff lacked actual or consecutive knowledge of its claim against the defendants, and (3) the plaintiff exercised due diligence given the state of its knowledge in investigating its possible cause of action up until the time the plaintiff actually discovered the operative facts underlying its claim. Application of the doctrine raises a number of interesting questions, any one of which provides a good paper topic:
a. What constitutes an "affirmative act of concealment"? As part of this question, must the act of concealment be separate and apart from the acts that constitute the violation itself, or are some antitrust violations "self-concealing" and require no separate act?
b. What constitutes "inquiry notice," that is, what are the characteristics of the set of facts that put a plaintiff on notice that it may have an antitrust claim and so triggers a duty to exercise due diligence and investigate or lose the benefit of further tolling of the statute of limitations?
c. What is the rule regarding the application of the doctrine of fraudulent concealment to the individual members of a antitrust conspiracy? For example, suppose that a plaintiff exercises due diligence and discovers near the end of the normal four-year statute of limitations period that it has a claim for price fixing against A and B and files a timely antitrust action against them on the last day of the limitations period. Later, during discovery, the plaintiff learns that C is also a member of the conspiracy. Can the plaintiff now sue C? Assume that the plaintiff exercised due diligence with respect to C. Does it matter if C is a separate company involved in the conspiracy or an employee of A or B who is responsible for the company's involvement in the conspiracy?
16. Here are three questions inspired by In re Potash Antitrust Litig., 667 F. Supp. 2d 907 (N.D. Ill. 2009).
a. In an indirect purchaser class action, may the named plaintiffs assert claims of absent class members under state statutes in jurisdictions where no named plaintiff could personally assert a claim (e.g., can a named plaintiff asserting a personal claim under Florida law assert a claim for absent class members under California law)? Potash says no as a matter of Article III constitutional standing. 667 F. Supp. 2d at 920-25. I suspect that is news to many people.
b. The court also dismissed the indirect purchaser claims for Sherman Act § 16 injunctive relief both because the named indirect purchasers were not threatened with antitrust injury and because they were not "proper parties" under Associated General Contractors to bring the action. Is the analysis and conclusion correct? If so, what are the implications for indirect purchaser actions for injunctive relief under Section 16?
c. One of the ACG factors in determining whether a particular plaintiff is a "proper party" to bring the antitrust claims is whether there exists some other identifiable class of persons who would have the necessary incentives to vindicate the public interest by pursuing this antitrust claim. The district court in Potash found that such an alternative existed—namely, the direct purchaser class, who were also before the court with their own antitrust complaint. Id. at 941. Should an indirect purchaser class ever have standing to pursue their Section 16 claims for injunctive relief in an action where there is also a direct purchaser class attacking the same underlying conspiracy and seeking injunctive relief along with damages?
17. This is a supply-side version of the indirect purchaser question. Suppose A manufacturers widgets and exclusively licenses B to distribute them (under an "exclusive" license, only B can sell A's widgets; under a "sole" license, both A and B can sell A's widgets). C engages in conduct that forecloses B from the relevant market in violation of Section 2 of the Sherman Act. As a result, B loses the profits on the sales it otherwise would have made in the market but for the foreclosure, while A loses the profits it otherwise would have made by selling its widgets to B. Who sustains antitrust injury and who has antitrust standing to bring a treble damages action against C?
18. On March 27, 2013, the Supreme Court in a five-to-four opinion decided Comcast Corp. v. Behrend, No. 11-864 (U.S. Mar. 27, 2013). In reversing, the majority held that the evidence—in the form of an expert economist's model—"failed to measure damages resulting from the particular antitrust injury on which petitioners' liability in this action is premised," id. at 8, and hence the class was "improperly certified under Rule 23(b)(3)," id. at 6. The dissent, on the other hand, found that the "case hardly fit for our consideration". Ginburg, J., and Breyer, J., dissenting, at 1. What exactly did the Supreme Court hold in Comcast (vis-à-vis the Rule 23 requirements for class certification), what was the dissent's problem with the majority approach, and how, if at all, is Comcast likely to change the way lower courts approach class certification in antitrust cases?
19. Both proponents and opponents of class certification are likely to submit affidavits from expert economists in support of their positions. In Daubert v. Merrell Dow Pharms., Inc. , 509 U.S. 579 (1993), the Supreme Court required, as a threshold matter to admit expert testimony for trial, that the expert be qualified and that her testimony be reliable and relevant. Shortly thereafter, this requirement was codified, with some elaboration, in Rule 702 of the Federal Rules of Evidence. Although expert testimony in a class certification proceeding is not testimony for trial, to what extent have courts required that expert testimony in a class action proceeding satisfied the Daubert requirements (and implicitly the Rule 702 requirements)? In those circuits that require something less than full compliance with Daubert, what are their standards?
20. Although Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977), held that indirect purchasers lack antitrust standing to pursue a damages action under Clayton Act § 4 for any overcharge they may have paid, the Illinois Brick Court also held that indirect purchasers have standing to pursue an action for injunctive relief under Clayton Act § 16. Also, many states allow indirect purchasers to bring damages actions under their state antitrust laws. Putting these two together, we often see one or more indirect purchasers file a class action complaint in federal district court seeking to represent a Rule 23(b)(2) class for injuntive relief in connection with a violation of the Sherman Act and, appealing to the supplemental jurisdiction of the court, a Rule 23(b)(3) class for damages in connection with the violation of various state antitrust laws. How have federal courts analyzed whether a Rule 23(b)(3) indirect purchaser class in these circumstances should be certified?
21. Rule 23(c)(2)(B) requires that, when a Rule 23(b)(3) class is certified, the court order “the best notice that is practicable under the circumstances” to class members and give class members have the right to opt out. Separately, in connection with proposed settlements, Rule 23(e)(1) provides that “court must direct notice in a reasonable manner to all class members who would be bound by the [settlement] proposal” if adopted by the court as a final judgment. In many cases, a putative class action will settle before the class has been formally certified, in which case the Rule 23(c)(2)(B) notice and the Rule 23(e)(1) notice are sent out together. Classes certified in these circumstances are known as “settlement classes”. In settlement classes, a putative class member can decide whether to opt out knowing what the proposed settlement is. (Settlement classes, by the way, are subject to the same requirements under Rule 23 as classes that are going to continue with litigation.)
In other cases, however, class certification comes first—with a settlement in the distant future, if ever—and the class member must decide without knowing what the settlement is whether to opt out. In these post-certification cases, Rule 23(e)(4) provides that, in connection with a settlement, “If the class action was previously certified under Rule 23(b)(3), the court may refuse to approve a settlement unless it affords a new opportunity to request exclusion to individual class members who had an earlier opportunity to request exclusion but did not do so.” The means that a court can, but does not necessarily have to, provide a second opt-out opportunity to class members when a post-certification settlement is proposed. Usually, courts give a second opt-out opportunity, but not always. In connection with a post-certification settlements in antitrust cases, how often have courts refused to give a second opt-out opportunity and under what circumstances, if any, does this refusal constitute an abuse of discretion?
22. In a summary judgment proceeding, both sides almost always submit a declaration of an expert economist in support of their respective positions.
a. What are the standards for admitting expert testimony into the summary judgment record?
b. Under what circumstances is expert testimony sufficient (or insufficient) to create a genuine issue of material fact when one otherwise would not exist in the absence of the testimony?
23. In 2007, the FTC petitioned the district court to enter a preliminary injunction under Section 13(b) of the FTC Act to block the pending acquisition by Whole Foods of Wild Oats. The district court denied the preliminary injunction (502 F. Supp. 2d 1 (D.D.C. 2007)) and the FTC appealed. In a 2-1 decision, the D.C. Circuit reversed the district court's denial of the preliminary injunction and remanded. When Whole Foods petitioned the court for a rehearing en banc, the original panel withdrew the original majority opinion and issued two new opinions (with the remaining judge still dissenting), and the petition for rehearing was denied (548 F.3d 1028 (D.C. Cir. 2008)).
As a result, although both of the new opinions would reverse and remand, so that the original disposition of the appeal remained, neither of the two judges joined in the other's opinion and so there was no majority opinion. Still, the case has been read by lower court judges to reduce significantly the burden on the FTC in obtaining a preliminary injunction under Section 5 in comparison to burden faced by a private plaintiffs and presumably by the DOJ, both of which seek preliminary injunctions to block mergers under Section 16 of the Clayton Act, not Section 13(b) of the FTC Act.
Did the final resolution of the Whole Foods case by the D.C. Circuit in fact reduce the prior standard for obtaining a preliminary injunction under Section 13(b)? If so, how? Procedurally, could it have done so since there was no majority opinion? But if it did, what is the difference between the old standard and the new standard substantively and how does the new standard compared to the standard applicable to the DOJ under Section 16?
24. In United States v. Keyspan Corp., No. 10-1415 (WHP) (Feb. 2, 2011), the court entered a consent decree providing for disgorgement of profits for a violation of the antitrust laws and requires the defendant to pay $12 million to the United States. The FTC has obtained disgorgement in alleged Section 5 violations, but this is the first time (at least in modern memory) that the DOJ has obtained disgorgement relief. For more background, see the materials on the case in Unit 2.
a. The DOJ cited Section 4 of the Sherman Act as the basis for the relief. Section 4 provides, among other things, that the DOJ may "to institute proceedings in equity to prevent and restrain such violations." The district court concluded that Section 4 includes disgorgement. Is this correct?
b. If not, can a court incorporate in a final judgment a DOJ consent settlement that provides for disgorgement as a valid exercise of the court's Article III power? The Supreme Court has held that a private plaintiff may negotiate and obtain relief under a consent settlement that the plaintiff could not obtain in a litigation on the merits and have that settlement incorporated into a final judgment (consent order) by the court. Firefighters v. Cleveland, 478 U.S. 501, 525-28 (1986). But Cleveland Firefighters does not answer whether a government enforcement agency can negotiate for equitable monetary relief where no statute permits it to obtain this type of relief at trial.
c. Can the U.S. Treasury accept a check payable to the United States if there is no statute that provides for it?
25. In United States v. Apple Inc., No. 12-cv-2826 (S.D.N.Y. filed April 11, 2012), the district court in a brench trial found that Apple and five ebook publishers had engaged in a price-fixing conspiracy by jointly agreeing to adopt an "agency" model for the pricing of ebooks. As part fo the relief, the district court ordered Apple to revise and tighten its antitrust compliance program and appointed a "monitor" to watch over Apple's compliance with this part of the order. In a filing on November 27, 2013, Apple objected to the monitor's activities, alleging that the monitor was "already operating in an unfettered and inappropriate manner, outside the scope of the Final Judgment, admittedly based on secret communications with the Court, and trampling Apple’s rights." What powers can a monitor have in moniotring compliance with a court order and did the Apple monitor go too far?
26. A settlement in an antitrust action usually contains a general release by the plaintiff of the settling defendants for all claims between the parties which were in existence and within the parties' contemplation at the time the release is executed. It is a fundamental principle of antitrust law, however, that a general release cannot release future claims, even if those claims arise out of the pre-release conduct of the defendants. From a defendant's perspective, what are the principles that should guide the drafting of a general release in order to maximize the claims that the plaintiff releases and minimizes the exposure of the defendant to future actions by the plaintiff? What are some examples of cases where a general release was given wide applicability as well as some examples where the court has held that the release went beyond what public policy will enforce?
27. Courts can approve the award of attorneys' fees from the common fund created by teh class action settlement only if the award is reasonable under the circumstances. Among other things, reasonableness requires that attorneys' fees should be awarded only for the part of the common fund that the claiming attorney created. How, if at all, should attorneys' fee award be adjusted if major elements of the private case—and perhpas even liability—established in a prior government action?