GCR Antitrust Awards 2024: Analysis Group Case Work and Academic Affiliate Anupam Jena Nominated for Multiple Competition Awards

Analysis Group is delighted to announce that academic affiliate Anupam B. Jena (Harvard Medical School and Massachusetts General Hospital) has been selected as a nominee for the Global Competition Review (GCR) 2024 “Economist of the year” award. Additionally, the firm is honored to have provided economic and competitive analyses for five matters that have been named to the short list for this year’s antitrust awards, including a candidate for “Matter of the year.”

Congratulations to the Analysis Group affiliates and clients, and to all nominees, for GCR’s 2024 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 February 12:*

“Economist of the year”: Professor Anupam Jena, the Joseph P. Newhouse Professor of Health Care Policy at Harvard Medical School and a practicing physician at Massachusetts General Hospital, was recognized for the distinctive insights of both a medical degree and a doctorate in economics, which he provides in his litigation and policy work in the life sciences. An experienced testifier, he brings a sophisticated understanding of the intersection of economics and medicine to issues arising in antitrust matters, including market definition, market power, class certification, and damages. A recent highlight was his work as a defense expert in In re: HIV Antitrust Litigation, a reverse payment case that went to jury trial. Professor Jena contributed testimony rebutting plaintiffs’ damages estimates and on innovation in HIV treatments. After a six-week trial, a federal jury ruled for the defense.

“Litigation of the year – Non-cartel defence”: The HIV antitrust litigation was also recognized for its success in a rare reverse payment case to go all the way to a jury verdict. An Analysis Group team led by Managing Principal Pavel Darling, Principal Richard Mortimer, and Vice Presidents Ngoc Pham and Anna Gumen provided analytical support to academic affiliate Anupam Jena, whose testimony on behalf of Gilead and Teva was featured in his own nomination for GCR’s “Economist of the year.” A group of health plans and insurers claimed that they were overcharged for two HIV drugs because of an alleged reverse payment settlement between Gilead and Teva. Professor Jena opined on issues of damages, undercutting the reliability of plaintiffs’ models. He also testified on the innovation in HIV treatments and their benefits to society. The federal jury cleared Gilead and Teva, ruling that they did not have market power and that the settlement did not contain a reverse payment.

“Matter of the year” and “Merger control matter of the year – Europe”: In a high-profile tech merger with international reach, the semiconductor manufacturer Broadcom proposed to acquire a rival, VMware. The approximately $69 billion deal attracted scrutiny from competition enforcement authorities in a number of jurisdictions, who feared that the merger would reduce competition in the microchip market. An Analysis Group team led by Managing Principal Rebecca Kirk Fair and Vice President Nicholas Van Niel supported a technology industry strategy expert to implement a survey across thousands of respondents in the EU to understand potential consumer behavior under a variety of business strategies employed by the two companies.

“Litigation of the year – Non-cartel defence”: GCR also highlighted litigation brought by The Real Estate Exchange (REX) against Zillow, the popular online real estate marketplace. REX alleged that Zillow violated the Sherman Act, the Lanham Act, and the Washington Consumer Protection Act (CPA) when it moved non-multiple listing service offerings from the “Agent Listings” section of its website and app to an “Other Listings” tab. Working on behalf of Zillow, an Analysis Group team led by Managing Principal Adam Decter, Principal Rene Befurt, and Vice Presidents John Browning, Anne Cai, and Kate Schofield supported Professors Steven Tadelis and Tülin Erdem, who between them opined on factors unrelated to Zillow’s actions that caused REX’s demise, the familiarity and visibility of Zillow’s “two-tab toggle listing” display, and the highly complex homebuying process. The defense also analyzed the procompetitive justifications associated with Zillow’s display changes. A judge in the US District Court for the Western District of Washington dismissed the Sherman Act charge before trial; following a seven-day trial, a jury rejected both the Lanham Act and Washington CPA claims, resulting in a total victory for Zillow. 

“Merger control matter of the year – Americas”: Analysis Group supported the social media network Meta and the virtual reality fitness app company Within Unlimited, developer of the Supernatural app, in their merger. The Federal Trade Commission (FTC) challenged the merger on a theory of potential competition, i.e., the ground that Meta was capable of developing its own rival to Supernatural, and that their combination would therefore harm competition in the virtual fitness app market. An Analysis Group team led by Managing Principals Rebecca Kirk Fair and Emily Cotton supported the merging parties and counsel throughout the merger process, from Hart-Scott-Rodino (HSR) filings through the litigation process. A judge in the US District Court for the Northern District of California refused to enjoin the acquisition, holding that the FTC had failed to show that Meta was likely to enter the VR fitness market independent of the Within acquisition, and hence that the acquisition was likely to harm consumers. The FTC subsequently abandoned its challenge.

“Behavioural matter of the year – Europe”: In a case involving one of the largest fines ever levied by the French Competition Authority (FCA), the drugmakers Roche Holding AG, Novartis, and Genentech (collectively “Roche”) appealed an FCA finding that Roche had abused a collective dominant position by discouraging the use of Avastin (designed to treat cancer) as an off-label treatment for age-related macular degeneration in order to reduce its market penetration and create a supracompetitive price for Roche’s macular degeneration drug Lucentis, and imposed a €385 million fine on Roche. Analysis Group Managing Principal Antoine Chapsal and Vice President Emmanuel Frot analyzed medical statements and the drug regulation regime in France, and assessed the potential impact of the at-issue practices on drug prices. The Paris Court of Appeal ruled that Roche’s communications were not disparaging but rather had sufficient factual basis, and that Roche had not abused its dominant position. It thus overturned the FCA’s decision and historic fine in their entirety.

*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.