Berman Tabacco

Joseph J. Tabacco, Jr.

Partner

Joseph J. Tabacco, Jr.

Joseph J. Tabacco, Jr., founder of Berman Tabacco’s San Francisco office, works hard to deliver financial justice by litigating antitrust, securities fraud, commercial high tech, and intellectual property matters. He has long been recognized by clients and both plaintiffs and defense counsel as a leading plaintiffs’ antitrust and securities class action attorney.

For over 40 years, Joe has served as trial or lead counsel in antitrust and securities cases, proving himself as a seasoned litigator. In fact, for 11 consecutive years, Joe has been among the top U.S. securities litigators ranked by Chambers USA, and he is also AV Preeminent® rated by Martindale Hubbell®. He has also been ranked as one of California’s top 30 securities litigators, a group chosen from both the plaintiff and defense bars.

Prior to entering private practice in 1981, Joe was a senior trial attorney for the Antitrust Division of the U.S. Department of Justice in both the Central District of California and the Southern District of New York.  Since 2008, he has served as an independent member of the Board of Directors of Overstock.com, a publicly traded internet retailer. In addition to being Chair of the Board’s Corporate Governance Committee, he also serves as a member of the Board’s Audit and Compensation Committees.

With many credits to his name, including frequent lecturer and author on securities and antitrust issues, Joe has been ranked as a Recommended Attorney in Securities Litigation by The Legal 500 and a Local Litigation Star by Benchmark Litigation.  Joe was also ranked as one of the Top Plaintiffs Lawyers in California in 2017 by the Daily Journal.  In 2018, Chambers USA hailed Joe as “a well-known plaintiff-side securities litigator with a very strong profile among peers[, who] achieves impressive results in class actions involving issues such as the securitization of mortgaged-backed securities and manipulation of exchange rates.”  Chambers highlighted a client’s praise for Joe: “‘His legal knowledge and skills are at the highest level. His combined intelligence and experience results in well-reasoned and thoughtful arguments to further our case.’”

Experience

  • Joe oversaw In re Lithium Ion Batteries Antitrust Litigation, No. 13-md-2420-YGR (N.D. Cal.), a case alleging a conspiracy to fix the prices of lithium ion rechargeable batteries, which affected the prices paid for batteries and certain products in which the batteries are used.  Plaintiffs successfully defeated multiple motions to dismiss and a motion for summary judgment involving complex issues of antitrust standing and pleading conspiracy allegations.  Joe and the team negotiated settlements in the total amount of $139.3 million.
  • Oversaw California Public Employees’ Retirement System v. Moody’s Corp., No. CGC-09-490241 (Cal. Super. Ct. San Francisco Cty.), a pioneering case that sought to hold credit rating agencies (Standard & Poor’s and Moody’s) financially responsible for their misrepresentations in rating structured investment vehicles. Joe successfully argued that defendants’ attempts to dismiss CalPERS’ case should be denied, both at the trial level and in the Court of Appeals. After settling with both S&P and Moody’s, CalPERS’ 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 S&P and Moody’s in a private lawsuit for civil damages; and (ii) it resulted in a published appellate court opinion (which appeal was argued by Joe) substantially chipping away at 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.
  • 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. Joe and his team achieved settlements totaling $346 million on behalf of investors, the third largest MBS class settlement to date. The settlement is extraordinary, not only because of its size, but also because, with the issuer IndyMac defunct, $340 million of it 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 such defense.
  • Responsible for the landmark antitrust class action against diamond giant DeBeers, Sullivan v. DB Investments, Inc., No. 04-02819 (D.N.J.), which achieved a historic $295 million settlement with De Beers.  The firm represented a class of diamond resellers alleging De Beers unlawfully monopolized the worldwide supply of diamonds.  The settlement was significant because, in addition to the $295 million cash payment, the settlement included an agreement by De Beers to submit to the jurisdiction of the U.S. court to enforce the terms of the settlement and a comprehensive injunction limiting De Beers’ ability to restrict the worldwide supply of diamonds in the future. The firm’s work in this case—believed to be the first successful prosecution of De Beers under U.S. antitrust laws—serves as a template for corralling foreign monopolists.
  • Served as co-lead counsel on behalf of Aetna and the class in In re Cardizem CD Antitrust Litig., No. 99-01278 (E.D. Mich.), a first-of-its-kind case involving generic drug competition, helping to secure an $80 million settlement from French-German drug maker Aventis Pharmaceuticals and the Andrx Corporation of Florida. The firm obtained a pioneering ruling in the federal court of appeals regarding the “reverse payment” by a generic drug manufacturer to the brand name drug manufacturer.  The appellate court held that the brand name drug manufacturer’s payment of $40 million per year to the generic company for the generic to delay bringing its competing drug to market was a per se unlawful market allocation agreement.  Today that victory still shapes the ongoing antitrust battle over competition in the pharmaceutical market.

Community Involvement

  • Bay Area Legal Aid (Board of Directors, 1998-present)
  • Appointed by Federal Court as a member of the Magistrate Judge Merit Selection Panel for the Northern District of California
  • Appointed by Federal Court as a member of the Northern District of California Model Protective Order Revision Committee

Publications, Presentations & Appearances

Joe frequently lectures and authors articles on securities and antitrust law and is a member of the Advisory Board of the Institute for Consumer Antitrust Studies at Loyola University Chicago School of Law.  His recent publications and presentations include:

  • The Bar Association of San Francisco: High-Frequency Trading: The Next New Thing in Securities Litigation? (January 26, 2015)
  • The George Washington University Law School:  The Future Direction of Investor Protection (January 23, 2015)
  • California Lawyer 2014 Roundtable Series: Antitrust
  • Settlement Practice from both a Plaintiff and Defense Perspective, chapter in Private Enforcement of Antitrust Law in the United States – A Handbook, at 305 (Albert A Foer, et al., eds., 1st ed. 2012)
  • Settlement Windows of Opportunity—A Practitioner’s Guide, Securities Litigation & Enforcement Institute (2011)
  • California Lawyer 2012 Roundtable Series: Securities Litigation
  • PLI Securities Litigation & Enforcement Institute 2011: Settlement Windows of Opportunity—A Practitioner’s Guide
Joseph J. Tabacco, Jr. Partner
San Francisco
44 Montgomery Street
Suite 650
San Francisco, CA 94104

Joseph J. Tabacco, Jr., founder of Berman Tabacco’s San Francisco office, works hard to deliver financial justice by litigating antitrust, securities fraud, commercial high tech, and intellectual property matters. He has long been recognized by clients and both plaintiffs and defense counsel as a leading plaintiffs’ antitrust and securities class action attorney.

For over 40 years, Joe has served as trial or lead counsel in antitrust and securities cases, proving himself as a seasoned litigator. In fact, for 11 consecutive years, Joe has been among the top U.S. securities litigators ranked by Chambers USA, and he is also AV Preeminent® rated by Martindale Hubbell®. He has also been ranked as one of California’s top 30 securities litigators, a group chosen from both the plaintiff and defense bars.

Prior to entering private practice in 1981, Joe was a senior trial attorney for the Antitrust Division of the U.S. Department of Justice in both the Central District of California and the Southern District of New York.  Since 2008, he has served as an independent member of the Board of Directors of Overstock.com, a publicly traded internet retailer. In addition to being Chair of the Board’s Corporate Governance Committee, he also serves as a member of the Board’s Audit and Compensation Committees.

With many credits to his name, including frequent lecturer and author on securities and antitrust issues, Joe has been ranked as a Recommended Attorney in Securities Litigation by The Legal 500 and a Local Litigation Star by Benchmark Litigation.  Joe was also ranked as one of the Top Plaintiffs Lawyers in California in 2017 by the Daily Journal.  In 2018, Chambers USA hailed Joe as “a well-known plaintiff-side securities litigator with a very strong profile among peers[, who] achieves impressive results in class actions involving issues such as the securitization of mortgaged-backed securities and manipulation of exchange rates.”  Chambers highlighted a client’s praise for Joe: “‘His legal knowledge and skills are at the highest level. His combined intelligence and experience results in well-reasoned and thoughtful arguments to further our case.’”

Education
  • George Washington School of Law (J.D., with honors, 1974)
  • University of Massachusetts-Amherst (B.A. in Government, 1971)
Experience
  • Joe oversaw In re Lithium Ion Batteries Antitrust Litigation, No. 13-md-2420-YGR (N.D. Cal.), a case alleging a conspiracy to fix the prices of lithium ion rechargeable batteries, which affected the prices paid for batteries and certain products in which the batteries are used.  Plaintiffs successfully defeated multiple motions to dismiss and a motion for summary judgment involving complex issues of antitrust standing and pleading conspiracy allegations.  Joe and the team negotiated settlements in the total amount of $139.3 million.
  • Oversaw California Public Employees’ Retirement System v. Moody’s Corp., No. CGC-09-490241 (Cal. Super. Ct. San Francisco Cty.), a pioneering case that sought to hold credit rating agencies (Standard & Poor’s and Moody’s) financially responsible for their misrepresentations in rating structured investment vehicles. Joe successfully argued that defendants’ attempts to dismiss CalPERS’ case should be denied, both at the trial level and in the Court of Appeals. After settling with both S&P and Moody’s, CalPERS’ 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 S&P and Moody’s in a private lawsuit for civil damages; and (ii) it resulted in a published appellate court opinion (which appeal was argued by Joe) substantially chipping away at 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.
  • 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. Joe and his team achieved settlements totaling $346 million on behalf of investors, the third largest MBS class settlement to date. The settlement is extraordinary, not only because of its size, but also because, with the issuer IndyMac defunct, $340 million of it 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 such defense.
  • Responsible for the landmark antitrust class action against diamond giant DeBeers, Sullivan v. DB Investments, Inc., No. 04-02819 (D.N.J.), which achieved a historic $295 million settlement with De Beers.  The firm represented a class of diamond resellers alleging De Beers unlawfully monopolized the worldwide supply of diamonds.  The settlement was significant because, in addition to the $295 million cash payment, the settlement included an agreement by De Beers to submit to the jurisdiction of the U.S. court to enforce the terms of the settlement and a comprehensive injunction limiting De Beers’ ability to restrict the worldwide supply of diamonds in the future. The firm’s work in this case—believed to be the first successful prosecution of De Beers under U.S. antitrust laws—serves as a template for corralling foreign monopolists.
  • Served as co-lead counsel on behalf of Aetna and the class in In re Cardizem CD Antitrust Litig., No. 99-01278 (E.D. Mich.), a first-of-its-kind case involving generic drug competition, helping to secure an $80 million settlement from French-German drug maker Aventis Pharmaceuticals and the Andrx Corporation of Florida. The firm obtained a pioneering ruling in the federal court of appeals regarding the “reverse payment” by a generic drug manufacturer to the brand name drug manufacturer.  The appellate court held that the brand name drug manufacturer’s payment of $40 million per year to the generic company for the generic to delay bringing its competing drug to market was a per se unlawful market allocation agreement.  Today that victory still shapes the ongoing antitrust battle over competition in the pharmaceutical market.
Honors & Distinctions
  • Awarded a rating of AV Preeminent® by Martindale-Hubbell®
  • Named a Top Rated Antitrust Litigation Attorney by Northern California Super Lawyers magazine for fifteen consecutive years (2004-2018)
  • Recognized and featured by Daily Journal as one of California’s top 30 securities litigators
  • Ranked as one of the Top Plaintiffs Lawyers in California by the Daily Journal (2017)
  • Named by Global Competition Review’s Who’s Who Legal: Competition, most recently in 2018, where he has been listed for the past 5 years since the creation of the publication’s Plaintiffs section
  • Ranked, for the 12th consecutive year, among the top U.S. securities litigators by Chambers USA (2007-2018)
  • Ranked as a Local Litigation Star by Benchmark Litigation (2017-2019) and Benchmark California Star – 2019
  • Ranked as a Recommended Attorney in Securities Litigation by The Legal 500 (U.S. edition 2017 and 2018)
  • Recognized in The Best Lawyers in America®  for Litigation-Antitrust (2018 and 2019) and for Litigation-Securities (2019)
Admissions
  • U.S. Supreme Court
  • State Bar of California
  • State Bar of Massachusetts
  • State Bar of New York
  • U.S. District Court for the Central District of California
  • U.S. District Court for the Northern District of California
  • U.S. District Court for the Southern District of California
  • U.S. District Court for the Eastern District of California
  • U.S. District Court for the District of Colorado
  • U.S. District Court for the District of Columbia
  • U.S. District Court for the District of Massachusetts
  • U.S. District Court for the Eastern District of Michigan
  • U.S. District Court for the Southern District of New York
  • U.S. District Court for the Eastern District of New York
  • First Circuit, U.S. Court of Appeals
  • Second Circuit, U.S. Court of Appeals
  • Third Circuit, U.S. Court of Appeals
  • Sixth Circuit, U.S. Court of Appeals
  • Ninth Circuit, U.S. Court of Appeals
Affiliations
  • Bar Association of San Francisco (past chair of Securities Law Section)
Education
  • Bay Area Legal Aid (Board of Directors, 1998-present)
  • Appointed by Federal Court as a member of the Magistrate Judge Merit Selection Panel for the Northern District of California
  • Appointed by Federal Court as a member of the Northern District of California Model Protective Order Revision Committee
Publications, Presentations & Appearances

Joe frequently lectures and authors articles on securities and antitrust law and is a member of the Advisory Board of the Institute for Consumer Antitrust Studies at Loyola University Chicago School of Law.  His recent publications and presentations include:

  • The Bar Association of San Francisco: High-Frequency Trading: The Next New Thing in Securities Litigation? (January 26, 2015)
  • The George Washington University Law School:  The Future Direction of Investor Protection (January 23, 2015)
  • California Lawyer 2014 Roundtable Series: Antitrust
  • Settlement Practice from both a Plaintiff and Defense Perspective, chapter in Private Enforcement of Antitrust Law in the United States – A Handbook, at 305 (Albert A Foer, et al., eds., 1st ed. 2012)
  • Settlement Windows of Opportunity—A Practitioner’s Guide, Securities Litigation & Enforcement Institute (2011)
  • California Lawyer 2012 Roundtable Series: Securities Litigation
  • PLI Securities Litigation & Enforcement Institute 2011: Settlement Windows of Opportunity—A Practitioner’s Guide