Jay N. Varon is a partner in Foley’s Washington, D.C. office. He is a former chair of the firm’s Antitrust & Competition Practice and he is the current chair of the firm’s Consumer Law, Finance & Class Action Practice. Jay litigates a broad variety of commercial matters and class actions including antitrust, unfair competition, UDAPP, environmental, and administrative procedure cases. He counsels clients in antitrust and trade regulation matters, including federal scrutiny of corporate mergers and acquisitions, predatory and below-cost pricing concerns, Robinson Patman Act questions, dealer and distribution issues, and matters arising under a variety of consumer finance statutes including RESPA, TILA, and FCRA.
Representative Matters
- Representation of major real estate broker in two antitrust class actions filed against the National Association of Realtors and four national real estate brokers that challenges operation of Multiple Listing Systems and the long-standing manner of establishing compensation to buyer brokers
- Appellate representation of home warranty company in reverse McCarran Ferguson preemption case
- Representation of MLM company in FTC investigation alleging unfair competition
- Representation of network of real estate companies in California DA Investigation alleging unfair competition
- Recent representation of an energy company in an antitrust MDL involving about 40 separately filed direct and indirect purchaser cases alleging federal and state price fixing, and related antitrust violations
- Successful defense and trial of a class action on behalf of a major real estate broker alleged to have entered into a fraudulent/sham joint venture with bank designed to facilitate kickbacks; obtained defense trial verdict after a four-and-a-half-week jury trial in a matter of hours
- Representation of insurance subsidiary clients against claims of unfair completion, CLRA claims, and consumer fraud through obtaining denials of class certification and/or awards of summary judgment
- Negotiation of a consent order with the FTC involving allegations of price collusion and improper information exchange in which no equitable or monetary relief was ordered other than an injunction to comply with the antitrust laws and to adhere to certain reporting obligations
- Successful representation of purchasers in the bulk propane business and in the mortgage insurance business with respect to their ability to purchase major competitors
- Longtime counseling of insurance companies and gas utilities with respect to antitrust, filed rate and/or McCarran Ferguson matters as applicable
Clients value Jay’s many years of experience as both a litigator and counselor, as well as his command of alternative means of dispute resolution, upon which he has written and lectured, and which he has utilized, both as an advocate and as a mediator.
Education
Jay is a magna cum laude graduate of the Wharton School of the University of Pennsylvania. He attended Stanford Law School, where he was an articles editor of the Stanford Law Review and graduated Order of the Coif. Following law school, he was a law clerk to the Honorable Robert F. Peckham, Chief Judge of the United States District Court for the Northern District of California in San Francisco.
Thought Leadership
Jay has authored many publications on high stake litigation and antitrust and RESPA topics, including several U.S. Supreme Court amicus briefs for industry trade associations in such cases as: Spokeo v. Robins, (Article III Standing); Freeman v. Quicken Loans (RESPA); “Promoting Settlements and Limiting Costs By Means of the Offer of Judgment: Some Suggestions for Using and Revising Rule 68 33 Am. U. Law Rev. 813 (1984);” as well as shorter blog articles or pamphlets including: “China Agritech: The Supreme Court Ends Class Action Stacking,” (2018); “Justices Scrutinize The Pros and Cons of Extending American Pipe Tolling,” (2018).
Admission
He is admitted to practice in the District of Columbia, Maryland, and California*.
*California bar membership currently inactive.
Representative Experience
- Representing HomeServices of America in several class actions filed against the National Association of Realtors and the country’s four largest owners of real estate brokerage networks that challenges operation of Multiple Listing Systems and long-standing manner of establishing compensation to buyer brokers.
- Baehr v. The Creig Northrop Team P.C. et. al., 2018 WL 6434502 (D. Md. Dec. 7. 2018) (awarding defendants summary judgment in RESPA class action because of lack of Article III standing and failure to satisfy equitable tolling requirements such that case was time barred) aff’d 953 F. 3d 244 (4th Cir. 2020) (confirming lack of Article III standing and dismissing case).
- Friedman v. Old Republic Home Protection Co., Inc., 2015 U.S. Dist. LEXIS 175735 (C.D. Cal. May 18, 2015) (denying motion to certify plaintiff’s California state law claims for false advertising and unfair competition).
- Campion v. Old Republic Home Protection Co., Inc., 775 F.3d 1144 (9th Cir. 2014) (holding that appeal from summary judgment ruling for the defense and denial of class certification was moot, with concurrence affirming on merits).
- White v. JRHBW Realty Inc., 2015 U.S. Dist. LEXIS 123432 (N.D. Ala. Sept. 16, 2015) (dismissing RESPA class action claims modeled after CFPB settlement complaint).
- Bolinger v. First Multiple Listing Service, Inc., 838 F. Supp. 2d 1340 (N.D. Ga. 2012) (granting summary judgment for defendants in rejection of novel RESPA claim that multiple listing service (MLS) fees to real estate brokers were part of the brokers’ fees to consumers and that alleged referrals to MLS and discounting of MLS fees violated RESPA Section 8).
- Minter v. Wells Fargo Bank, N.A., 762 F.3d 339 (4th Cir. 2014) (in a certified class action, affirming jury trial verdict for defendants, as well as post-trial rulings, for the defense on RESPA “sham” joint venture claims).
- Petry v. Wells Fargo Bank, N.A., 2014 U.S. APP LEXIS 13064 (4th Cir. Jul. 10, 2014) (affirming judgment for the defense in Maryland Finder’s Fee Act case).
- Busby v. JRHBW Realty, Inc., 2012 U.S. Dist. LEXIS 145037 (N.D. Ala. June 14, 2012) (awarding summary judgment to the defense in RESPA mark-up case).
- Hannan v. Weichert South Jersey Inc., 2007 N.J. Super. Unpub. LEXIS 1238 (App. Div. May 22, 2007) (affirming denial of class certification in New Jersey Consumer Fraud Act case).
- Snow v. First Am. Title Ins. Co., 332 F.3d 356 (5th Cir. 2003) (consolidated appeal from rulings for the defense on RESPA statute of limitations grounds).
Other similar representations have resulted in favorable rulings or class settlements including in cases under TILA and FCRA, as well as the defense of a major mortgage insurer in a series of nationwide RESPA class actions involving captive reinsurance.
Consumer Financial Industry Amicus Briefs
Jay has authored a number of amicus briefs on issues of importance to members of the consumer financial industry including:
- PHH Corp v. CFPB, No. 15-1177, U.S. Court of Appeals for the D.C. Circuit (arguing against CFPB Director Cordray’s interpretation of RESPA Section 8(c) and RESPA statute of limitations)
- Spokeo v. Thomas Robins, No. 13-1339, U.S. Supreme Court (re no-injury class actions)
- Carter v. Wells Bowen Realty, 736 F.3d 722 (6th Cir. 2013) (re interpretation of HUD sham joint venture guidelines)
- Freeman v. Quicken Loans, Inc., 132 S.Ct. 2034 (2012) (re meaning of RESPA 8(b) and markup claims)
Antitrust
- Represented HomeServices of America in several antitrust class actions alleging anticompetitive practices in the residential real estate industry.
- Served as lead counsel for one of the two defendants in two antitrust and consumer protection MDL cases, as well as an FTC investigation regarding activities in the propane distribution business.
- Represents various clients including some consumer finance clients (e.g., mortgage and title insurers), in antitrust and related regulatory investigations before the Federal Trade Commission, the Department of Justice, state Departments of Insurance, as well as before state district attorneys and attorney generals.
CERCLA
- Obtained favorable results in CERCLA cases following several federal bench trials and in summary judgment decisions. In one such case that went to trial, Jay’s utility client was absolved from liability at 12 different Manufactured Gas Plant (MGP) sites, a result that was affirmed on appeal. See Yankee Gas Servs. Co. v. UGI Utils., Inc., 428 Fed. App’x 18 (2d Cir. 2011).
- Obtained a successful result in a related allocation trial concerning an additional site. See Yankee Gas Servs. Co. v. UGI Utils., Inc., 852 F. Supp. 2d 229 (D. Conn. 2012).
- Obtained a favorable ruling following a bench trial in South Carolina. See South Carolina Elec. & Gas Co. v. UGI Utils., Inc., 2012 WL 1432543 (D.S.C. Apr. 11, 2012). See also Consol. Edison Co. of New York v. UGI Utils., Inc., 153 F. App’x 749 (2d Cir. 2005); Atlanta Gas Light Co. v. UGI Utils., Inc., 463 F.3d 1201 (11th Cir. 2006) (each affirming summary judgment rulings for the defendant).
Other Complex Litigation Experience
- Jay served as lead counsel for an energy client in sixteen different consumer fraud and deceptive practices class actions that were consolidated for pretrial proceedings and discovery by the Multidistrict Panel on Litigation and then resolved via settlement.
Presentations and Publications
- “China Agritech: The Supreme Court Ends Class Action Stacking,” (2018)
- “Justices Scrutinize The Pros and Cons of Extending American Pipe Tolling,” (2018)
- “A Response To the CFBP’s Recent Compliance Bulletin on MSAs”
- “RESPA Primer on Joint Ventures and Affiliated Business Arrangements”
- “Guide to Section 8 of RESPA for Settlement Service Salespersons”
- “Promoting Settlements and Limiting Costs By Means of the Offer of Judgment: Some Suggestions for Using and Revising Rule 68, 33 Am. U. Law Rev. 813 (1984)”
- Several additional articles appear on Foley’s Consumer Class Defense Counsel blog
Foley Secures Victory for Weichert Realtors in New Jersey Supreme Court Ruling
Fourth Circuit Holds Magistrate Judge Jurisdiction Does Not Require Absent Class Members’ Consent
Federal Court Reads Between the Lines To Allow Unusual RESPA Section 8 Claim To Move Forward
Of Tuna Price-Fixing Conspiracies, Econometric Regressions, and the Ninth Circuit’s Latest Guidance on Class Certification
