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Best Brief of 2015: Goldstein & Russell's Reply Brief to Second Circuit in Libor Case, Gelboim v. Bank of America

This year's choice for best brief was easy. Goldstein & Russell's Reply Brief on behalf of the plaintiff in Gelboim v. Bank of America, et al.13-3565, dkt 513 (2d Cir. Aug. 17, 2015) does everything that a great brief should do, and does it with clarity and grace.
Below is the Preliminary Statement (the full brief is available at the link). Our comments are in italics.
Plaintiffs allege that defendants—horizontal competitors in LIBOR-based
markets—conspired to suppress USD-LIBOR. Defendants’ response is that such
conduct does not violate the Sherman Act because they didn’t conspire to reduce
competition, just the prices they paid. If that sounds strange, that’s because it is.
The first paragraph is by far the most important part of any brief.  Any piece of writing, actually. In journalism, we called it the "lede," and every good story needed one.
In a legal brief, the opening paragraph must do two things very quickly: 
1. It must tell the judge and the judge's clerk what this case is about. They read thousands of pages every day, and are not necessarily familiar with your case when they pick up your brief. An opening paragraph must orient them about the central issues.
2. As Karl Lewellyn urged, "you need to interest them in that brief. You've got to make them feel that when they come to the brief, "Oh, baby, is it going to be hot."
The first goal is far more important than the second.  But if you can put together a paragraph that serves both of these goals, then you have a brief a judge will take notice of. This opening paragraph hits both goals magnificently. Did you stop at that last sentence and say, "wait a second!"?  Of course, you did.

Stripped of obfuscating rhetoric, defendants’ position is that a secret
agreement among horizontal competitors that tampers with the price structure of
their market is not anticompetitive if its only effect is manipulating prices. That is
literally the opposite of the per se rule against price fixing. As this Court has just
powerfully reaffirmed, “any conspiracy ‘formed for the purpose and with the effect
of raising, depressing, fixing, pegging, or stabilizing the price of a commodity …
is illegal per se,’ and the precise ‘machinery employed … is immaterial.’” United
States v. Apple, Inc., 791 F.3d 290, 327 (2d Cir. 2015) (quoting United States v.
Socony-Vacuum Oil, 310 U.S. 150, 223 (1940)). Surprisingly, while this principle
from Socony forms the centerpiece of plaintiffs’ opening brief, defendants do not
even acknowledge its existence, let alone respond.
Next, a brief must boil the case down to its bare elements, exposing exactly where the argument is so that a judge can consider the issues. This brief moves immediately into that, taking the initiative and not giving it up. If it were a tennis game, it has rushed the net. If it were a chess game, it came out with its queen after four moves.
In fact, the only responsive aspect of defendants’ brief is where it agrees
with plaintiffs that this case is not about antitrust injury at all. Defendants’
argument is that secretly conspiring to manipulate LIBOR is not actually a restraint
of trade; they expressly base their (very short) antitrust-injury argument on this
Court reaching that conclusion first. Thus, for defendants to prevail, this Court 
must hold that the Sherman Act permits them to collusively manipulate LIBOR.
That radical revision of the antitrust laws would invalidate not only civil suits but
government prosecutions as well. And that explains why many of the Nation’s
leading antitrust scholars—including Professor Hovenkamp, coauthor of the
authoritative treatise—have filed a brief urging this Court to reverse. See Scholars’
Br., Dkt.# 368. 
Because the result below is indefensible, defendants spend half their brief
seeking alternative affirmance on Twombly grounds. This argument cannot be
accepted: Thousands of pages of complaints in this case contain mountains of
evidence beyond the mere parallelism that Twombly holds insufficient, most of
which defendants fail to mention. Indeed, the crux of defendants’ argument seems
to be that no allegation of USD-LIBOR fixing can be plausible because, while
these banks were extensively investigated and prosecuted for various forms of
LIBOR fixing (and paid billions in fines), they were never prosecuted for fixing
USD-LIBOR in particular. This is like Al Capone arguing it’s not even plausible
he committed any other crimes because he was only prosecuted for tax evasion.
Moreover, unlike any successful Twombly defense to date, defendants’
contention is not that their parallel conduct is the product of lawful competition.
Instead, their story is that all sixteen panel banks began simultaneously submitting
fraudulent LIBOR quotes purely through conscious parallelism in the context of 
their existing agreement to make truthful and independent submissions. That
“defense” is hardly an innocent explanation for parallel conduct, and so presents
none of Twombly’s animating concerns. This Court should reverse, and order that
discovery commence.
It is difficult in a brief to ridicule the other side's argument but still keep a tone of civility. This brief accomplishes that, characterizing their argument in a way that invites scorn without drawing attention to the snark, leaving the reader with the feeling, "you'd have to be stupid to believe the other side."
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Good briefs are little noticed nor long remembered.  If a good brief wins, the credit usually goes to the court for making a wise decision.  If a good brief loses - and they often do - few people look back on them with fondness. But for every lawyer trying to hone their craft, a good brief sets an example for clear, pointed writing and straight, sound reasoning. The Goldstein & Russell brief is one any good litigator can learn from.
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