GCR Antitrust Awards 2023: Analysis Group Case Work and Academic Affiliate Catherine Tucker Nominated for Multiple Competition Awards

Analysis Group is delighted to announce that academic affiliate Catherine Tucker (MIT Sloan School of Management) has been selected as a nominee for Global Competition Review’s 2023 “Economist of the year” award. Additionally, the firm is honored to have provided economic and competitive analyses for four matters that also have been named to the short list for this year’s antitrust awards, including three candidates for “Matter of the year.”

Congratulations to the Analysis Group affiliates and clients, and to all nominees, for GCR’s 2023 awards, which recognize “creative, strategic, and innovative work by teams of in-house and external lawyers and economists.” The following were among the nominees selected for online voting, which is open until Feb. 6:*

“Economist of the year”: Professor Catherine Tucker, the Sloan Distinguished Professor of Management Science at MIT Sloan School of Management, was recognized for the unique perspective she brings to questions arising from the intersection of law, policy, industrial organization, platform economics and digitization, privacy, and consumer behavior. A highlight of Professor Tucker’s wide-ranging work in 2022 was her testimony on behalf of the merging companies in the US Department of Justice’s (DOJ’s) challenge to UnitedHealth Group’s acquisition of Change Healthcare. Her testimony and rebuttal, supported by research from Analysis Group, were integral to the US District Court for the District of Columbia’s finding that the companies’ plans to establish firewalls and divest Change’s claims-editing business would sufficiently resolve the DOJ’s concerns about the deal.

“Matter of the year” and “Merger control matter of the year – Americas”: The UnitedHealth/Change Healthcare merger was also recognized for its success in defeating all three theories of harm put forward by the DOJ and attorneys general from New York and Minnesota in their bid to block the $13 billion tie-up. An Analysis Group team led by Principal Mark Lewis, Vice President Emily Cotton, and Manager Philipp Tillmann provided analytical support to academic affiliate Catherine Tucker, whose testimony was featured in her own nomination for GCR’s “Economist of the year.” In a portion of her testimony, Professor Tucker explained that UnitedHealth would handicap its own business should it attempt to take anticompetitive advantage of privileged information made available through the merger. In allowing the merger to proceed, Judge Carl J. Nichols of the US District Court for the District of Columbia found that the government relied “on speculation rather than real-world evidence” for its claims that UnitedHealth would exploit Change’s data and innovations to benefit its own health plan and disadvantage rivals. The companies closed the deal in October 2022.

“Matter of the year” and “Behavioural matter of the year – Americas”: GCR highlighted the DOJ’s failure to win convictions in three separate trials for any of the 10 executives it claimed had colluded to fix prices in the broiler chicken industry. An Analysis Group team led by Managing Principal Andrea Okie, Principal Mark Lewis and Vice Presidents Kevin Gallagher, David Smith, and Ishita Rajani worked with academic affiliate Professor Edward Snyder in preparing his testimony for an unprecedented three trials. In his testimony in the third trial, Professor Snyder showed that information exchanges are expected in the broiler chicken industry and that the at-issue prices were not systematically higher than a set of benchmark prices analyzed for the case. After two mistrials, the jury found all five remaining executives charged in the third trial not guilty, and the DOJ subsequently dropped its related charges against four other executives before their federal criminal trial was set to begin.

“Matter of the year” and “Behavioural matter of the year – Americas”: The DOJ’s first-ever criminal no-poach case ended with a jury acquitting health care company DaVita and its former CEO Kent Thiry of all three counts of criminal conspiracy to allocate a market for senior-level employees. An Analysis Group team led by Managing Principals Jee-Yeon Lehmann and Aaron Yeater and Vice President Rebecca Scott supported President Pierre Cremieux, who was the sole witness called by the defense at trial. In his testimony, Dr. Cremieux explained that there was no statistical evidence of a decline in hiring between DaVita and its alleged co-conspirators from the alleged agreements, and neither DaVita’s turnover rate nor its compensation had decreased relative to industry benchmarks. Dr. Cremieux opined that the economic evidence did not support the DOJ’s allegation that there had been an allocation of the labor market or an end to meaningful competition. After posing more than 50 questions to Dr. Cremieux, the jury found the defendants not guilty of unlawfully agreeing with labor-market competitors not to recruit each other’s senior executives and other employees.

“Litigation of the year – Cartel defence”: In the culmination of one of the largest market manipulation cases on record, a New York federal jury acquitted Credit Suisse of claims it had participated with rivals in a conspiracy to fix forex rates. Credit Suisse was among 16 banks originally accused by a class of investors of colluding to manipulate foreign currency rates and of sharing confidential customer information through online chatrooms. All the other banks agreed to a $2.31 billion settlement with the plaintiffs, leaving Credit Suisse the sole defendant in a jury trial before the US District Court for the Southern District of New York. The jury heard expert testimony from Analysis Group Managing Principal Divya Mathur, who opined on the economics of cartels and their relevance in the foreign exchange marketplace, and from academic affiliate Professor Michael Melvin, who testified on the dynamics of that marketplace. Their testimony was supported by an Analysis Group team led by Managing Principal Samuel Weglein, Principal Brian Ellman, Vice Presidents Chris Feige and Rebeccah Filsoof, and Managers Hadrien Vasdeboncoeur and Riccardo Marchingiglio. Despite agreeing that the plaintiffs had demonstrated the existence of a cartel, the jury found they had failed to prove that Credit Suisse participated in it.

*Voting is only open to employees of law firms, economic consultancies, government agencies, universities, and competition advocacy organizations, and employees are not allowed to vote for matters in which their organization was involved. Eligible voters may cast online ballots here.