ANTITRUST & COMPETITION
Dr. Vellturo has conducted extensive analyses relating to antitrust/competition policy issues, involving both private antitrust actions and reviews before antitrust enforcement agencies around the world. He has appeared before the U.S. Congress, the U.S. Department of Justice, the Federal Trade Commission, the Federal Reserve Board of Governors, and numerous other federal agencies on antitrust-related matters. Internationally, he has appeared before the European Commission, the Australian and New Zealand competition authorities, and the Canadian Competition Bureau.
In both private litigation and government actions, industry participants may be accused of conspiring to reduce competition and inflate prices for their products and services. In such cases, QES has been retained to opine on the magnitude of the monetary effect of such actions on other industry participants or consumers and to estimate the corresponding monetary damages owed by the accused parties.
In past matters, QES has been asked to assess whether certain contractual provisions among manufacturers or service providers have significantly reduced competition and what effects such reductions have had on the dynamics of the industry.
In a patent infringement lawsuit, if a patent holder is able to demonstrate its patent is valid and infringed by another party, the patent holder is entitled to collect monetary damages from the infringing party.
In this phase of a patent infringement lawsuit, QES is retained to opine on the amount of monetary damages caused by the alleged infringement. To reach such an opinion, QES will often construct what is known as a "but for" world where everything is the same as the real world except for the infringement of the patent.
The reliable construction of such a world may require an in depth and highly quantitative market analysis which will serve as the basis for recreating what would have happened in the given market if the infringement had never occurred. Damages in such a case may fall into the categories of lost profits on lost sales, lost profits due to price erosion, and/or reasonable royalty damages.
In order to receive damages for patent infringement, the patent holder must demonstrate that its patent is both valid and infringed. Validity requires that the patented invention be non-obvious. Such evidence that an invention is non-obvious may be, for example, if the product embodying the patented invention is commercially successful and there is a causal nexus between characteristics of the product that are attributable to the patented invention and its success.
QES is often asked to opine on the commercial success of patented products. Such cases involve an assessment of market sales of a product and an analysis of the drivers of those sales.
When a product is initially accused of infringing a patent, there is the recognition that the litigation process may take a significant amount of time before the matter is adjudicated by the finder of fact. If the relevant patent is eventually found to be valid and infringed, the infringing party will have enjoyed a period of time selling its product when it should not have been able to do so. In cases such as these, the patent holder may file for a "preliminary injunction" to hold the accused product off the market during the pendency of the litigation. One element that the patent holder must prove is a likelihood of "irreparable harm" – that is, harm that cannot simply be quantified and paid back via a damages award if the injunction is not granted.
In such cases, QES has been asked to evaluate the likelihood of irreparable harm. To reach an opinion, QES may perform market research, including an analysis of publicly available information and a review of deposition testimony and/or conversations with industry players, and various quantitative analyses.
Companies frequently choose to maintain valuable information such as production processes as a trade secret rather than seek a patent, which requires the patented invention to be publicly disclosed. Trade secret litigation typically arises after a knowledgeable employee joins a competitor or companies share confidential information while discussing a potential business relationship. Similar to cases involving alleged patent infringement, those involving an allegation of trade secret misappropriation call for a calculation of damages based on the economic harm caused to plaintiffs due to the misappropriation. In addition, plaintiffs may be entitled to a damages award based on defendants’ “unjust enrichment” as a result of the misappropriation.
QES has been called on to calculate both types of damages in such cases, as well as reasonable royalty damages which may apply under certain conditions. Trade secret cases also frequently include claims for breach of contract and claims concerning patents related to the trade secrets, which QES may be asked to evaluate.
QES provides expert opinions on damages arising from contract disputes. For example, a company marketing a product may allege that it has been harmed by failure of its contract partner to maintain supply of the product. As in the assessment of damages in antitrust and patent cases, damages analysis entails modeling the sales and profits that would have been earned had the accused conduct not occurred. Such analysis requires careful consideration of other factors affecting demand for the product at issue during the period affected by the accused conduct.
QES also provides strategic consulting services. Firms considering a licensing proposal, for example, call upon QES to help them determine the likely strategic dynamics that will govern the negotiation process, and the ongoing relationship that develops once a license commences. QES will work directly with senior executives to help them understand and consider the complex mathematical and economic structures that govern such marketplace interactions. QES will bring to bear market simulation and statistical/econometric tools to provide firms with a well-documented and rigorous foundation with which to consider future strategic actions.