Analysis Group Forum: Spring 2019

From Our CEO

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When might consumer surveys provide a more accurate picture of product substitutability than typical market share measures in merger reviews? Why are “no-poach” clauses in franchise agreements drawing increasing scrutiny from antitrust regulators? How are data science tools being used to predict the onset of a particularly difficult-to-diagnose autoimmune disorder?

These are a few of the many complex and fascinating topics explored in the current issue of Forum. In the past year, talented employees from across our 14 offices spanning North America, Europe, and Asia have collaborated regularly to help our clients with business, litigation, and regulatory matters in virtually every sector of the global economy.

Other developments described in this issue include the effects of a landmark pharmaceutical antitrust case on class certification in future matters of this kind; issues that US states should consider when assessing cap-and-trade programs intended to reduce greenhouse gases; the increasing attention being paid to valuation methodologies in international arbitrations; and the potential tax implications of “smart” contracts. Also included is a brief summary of Analysis Group’s annual Law & Economics Symposium, which covers current topics in the life sciences.

Our firm continues to grow, and we remain committed to the distinctive, collaborative culture that allows us to draw on the best ideas for our clients’ success. I hope you enjoy this issue.

— Martha S. Samuelson, CEO and Chairman

The “Tyranny of Market Shares”: Incorporating Survey-Based Evidence into Merger Analysis

Surveying consumers to better understand the real-world choices they make when evaluating competing products or services can give merger authorities deeper insights into competitive effects.
Using Machine Learning to Estimate the Prevalence and Onset of a Disease

Machine learning tools can be used to detect previously unobserved relationships among different kinds of data.
What’s in the Record? Implications of the Asacol Case for Pharmaceutical Class Actions

The First Circuit decision in In re: Asacol Antitrust Litigation may prove to be a watershed for class certification questions in pharmaceutical antitrust suits.
Finding “True North” in Recent Delaware Appraisal Cases: Is It the Market or the Model?

When a model results in a valuation that is at odds with market prices, it is imperative to understand the disconnect: Is it the market or the model that is wrong?
Leveraging Cap-and-Trade’s Market Incentives in Climate Policies

Around the US, states are assessing the effectiveness of cap-and-trade programs for reducing greenhouse gas (GHG) emissions.
Symposium Examines Critical Economic Issues in Life Sciences Litigation

On May 6, 2019, Analysis Group hosted its annual Law & Economics Symposium on current issues in life sciences litigation at the MIT Sloan School of Management.
Taxing Questions: Managing the Taxation Complexities of Smart Contracts

In their efforts to maintain competitiveness, multinational businesses are increasingly adopting innovative technologies and digitalized processes.
“Similar” but Not the Same: Charting the Course of Biosimilar IP Litigation in the US

Significant differences in the manufacturing, regulation, and economics of generic drugs and biosimilars will mean differences in how IP litigation for biosimilars plays out.
Valuation in International Arbitration: A Growing Topic in Investor-State Disputes

When determining awards, some international arbitration tribunals have been taking a more detailed look at valuation concepts and ruling in favor of the method they perceive as the clearest and most rigorous.
Franchise No-Poach Agreements Face Antitrust Scrutiny

“No-poach” clauses in franchise agreements are common, but have drawn recent scrutiny from antitrust enforcers and plaintiffs.
Evaluating the But-For World: Surveys, Experiments, and Market Data

Class actions alleging harm from defective automobiles have unique characteristics, due to the vast array of features that can factor into consumer choice.
How Much Is Enough? Applying the “Rule of Reason” to Data Security

Business leaders need to ask: Will the benefits from making additional investments in cybersecurity outweigh the risks from not making them?