Marc Van Audenrode

A key economic question in securities litigation is how to determine the amount of harm that can be attributed to alleged misstatements and that may be considered as damages. Securities litigation and the legal frameworks around the determination of damages have been developing in different jurisdictions in Europe over the past ten years.

This white paper provides a brief overview of the classical approach to determining damages that is prevalent in many European jurisdictions; describes the alternative framework called ‘Fraud on the Market’ that has been commonly accepted in US courts; summarizes the evolving state of legal frameworks in some of the leading European jurisdictions; and explains the economics and practicalities of calculating inflation damages.

Following years of negotiation, Steinhoff International Holdings N.V., received approval from courts in the Netherlands and South Africa for a €1.7 billion global settlement with shareholders and creditors. Claimants had filed multiple class and group actions, including the first-ever investor class action in South Africa, alleging that Steinhoff had overstated its assets, issued false and misleading statements, and failed to disclose material information regarding its financial performance and prospects. An Analysis Group team led by Principal Chris Feige and Vice President Hadrien Vasdeboncoeur acted as independent economic advisor to Steinhoff throughout the settlement process and provided economic evidence to the Dutch and South African courts in support of the settlement.

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The line between pro-competitive and anticompetitive effects of so-called “killer” acquisitions in the digital market has drawn increasing antitrust scrutiny. In “Remember Stacker? Another Look at ‘Killer’ Acquisitions in the Digital Economy” in Competition Policy International, Analysis Group Managing Principals Divya Mathur and Marc Van Audenrode discuss the need for thoughtful antitrust analysis of digital acquisitions.

In a so-called “killer” acquisition, an incumbent buys a potential competitor and “kills” its innovative product in order to strengthen its own market position. This article studies the digital economy’s competitive dynamics and the motivations of early-stage and established companies, using as examples transactions between Microsoft and Stac Electronics, Amazon and Kiva Systems (now Amazon Robotics), and Microsoft and Hotmail (now Outlook.com). Given the complexities of any digital acquisition, the authors suggest that competition authorities must carefully consider the context of each individual transaction to accurately determine the balance of pro- and anticompetitive effects.

Analysis Group provided economic analysis and expert testimony in the American Funds mutual funds fee litigation – the first securities case to go to trial in the mutual fund industry in more than 20 years, and one of the largest securities matters ever to go to trial.

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A leading communications technology company engaged Analysis Group in this strategy project to build a prediction model of the likelihood that a declared set of standard essential patents (SEPs) would be deemed truly essential if challenged in court.

In recent years, a number of high-profile investigations by the European Commission's Directorate-General for Competition into state aid given to prominent US companies has raised questions about whether the agency may be targeting such companies unfairly. Since 2014, the Commission has found that unlawful state aid was provided to Apple, Starbucks, and Amazon, and it continues to investigate McDonald's. In a recent article, "Fiscal state aid: are US companies being unfairly targeted?" published in Global Competition Review, Analysis Group CEO Pierre Cremieux and Managing Principal Marc Van Audenrode examine whether there is any evidence to support this claim.

In the article, the authors report on their analysis of the nearly 1,600 state aid-related cases brought to the Commission's attention between January 1, 1999 and June 30, 2017, and assess whether the Commission's state aid investigations disproportionately target US companies. The authors find that, rather than disproportionately acting against US companies, the Commission appears to have become more aggressive across the board in its investigations relative to state aid.

An Analysis Group team, led by Managing Principal Marc Van Audenrode, was retained by lawyers from Linklaters LLP to help their client - the major shareholder of a listed French biotech corporation - fight allegations of insider trading brought by the French financial markets regulator, the Autorité des Marchés Financiers (AMF).

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An Analysis Group team comprising CEO Pierre Cremieux, Managing Principal Marc Van Audenrode, and Vice President Marissa Ginn published “Calculating Damages in Price-Fixing Cases in the United States, Canada, and the European Union” in the Spring 2017 edition of the Class Actions and Derivative Suits newsletter of the American Bar Association's Section of Litigation. The article explains the impact that price elasticities can have on damages awards in three different jurisdictions—the US federal courts, Canada, and the European Union—and provides basic examples to show some of the mathematical underpinnings of overcharge damages calculations, pass-on, and lost profits on lost sales.

In a paper coauthored with economists from an international high-tech firm, Managing Principal Marc Van Audenrode and Principal Jimmy Royer analyze factors contributing to the over-declaration of standard essential patents (SEPs). Companies self-declare SEPs in order to cover technologies necessary to meet industry standards established by independent standard setting organizations. However, because patent holders are required to declare all patents that might be essential, some of the patents at issue may not actually rise to the level of essentiality.

In “Over-Declaration of Standard Essential Patents and Determinants of Essentiality,” posted in a pre-print version on SSRN, the authors analyze a set of SEPs declared for the 4G LTE cellular standard in order to identify patent and company attributes associated with technical essentiality. They find that technical essentiality is best predicted if the declaration is made against a specific technical specification document. These and other insights from the study may be useful for informing the ongoing policy debates over standards, licensing of SEPs, and the patent system.

 

An Analysis Group team comprising President Pierre Cremieux, Managing Principal Marc Van Audenrode, and Vice President Marissa Ginn published “A Comparison of Damage Theories in Price-Fixing Cases in the United States, Canada, and the European Union” in the Winter 2017 edition of the Class Actions and Derivative Suits newsletter of the American Bar Association's Section of Litigation. The article uses an intuitive example to illustrate the economic impact of price-fixing in the marketplace, and to explain the differing evolution of litigation frameworks for private actions in the United States, Canada, and the European Union. In each jurisdiction, the regimes governing who can sue in private actions for damages, and what claims are allowed, differ; in particular, the standing of indirect purchasers and the admissibility of a pass-on defense shape the nature of private antitrust damages actions. The article illustrates how implementation, as well as upcoming precedents, may yet determine what the different frameworks imply for actual compensation levels. 

Social media AE reporters were younger and focused on less-serious and fewer types of AEs than FAERS reporters. The potential for social media to provide earlier indications of AEs compared with FAERS is uncertain. Our findings highlight some of the promises and limitations of online social media versus conventional pharmacovigilance sources and the need for careful interpretation of the results.

Competition Policy International: Antitrust Chronicle, Spring 2016, Volume 3, Number 1

In September 2012, Patripart NV, a former shareholder of former Belgian bank Fortis, and its parent company, Patrinvest SCA, brought an action for damages against Fortis successor Ageas SA/NV before the Brussels Commercial Court based on alleged incomplete and/or misleading information in Fortis's prospectus relating to its September 2007 capital increase. On February 1, 2016, the court ruled that the Fortis prospectus issued by the Fortis SA/NV (Bel) – Fortis NV (Holl) holding corporation gave a correct view of the state of affairs and risks relating to Fortis, in particular with regard to the acquisition of ABN Amro, the subprime portfolio, and its solvency and liquidity.

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Justice George R. Strathy of the Ontario Superior Court issued a summary judgment in favor of Analysis Group client Tim Hortons, Inc., dismissing claims by a putative class of franchisees that the Canadian coffee and doughnut franchisor was engaged in price fixing and other anticompetitive conduct.

In a patent infringement case widely covered in major media outlets, Analysis Group and academic affiliates Judith Chevalier of the Yale School of Management, Tülin Erdem of the NYU Stern School of Business, George Foster of the Stanford Graduate School of Business, and David Reibstein of the University of Pennsylvania Wharton School were retained by Samsung Electronics and its counsel, Quinn Emanuel Urquhart & Sullivan LLP, to provide consulting and expert witness services.

Analysis Group and our Affiliate Edward Snyder assisted Toyota Industries Corporation (TICO), a manufacturer of lift trucks, in its vertical acquisition of Cascade Corporation, a manufacturer of state-of-the-art lift truck attachments.

Analysis Group was retained on behalf of counsel for a large semiconductor manufacturer to provide economic consulting support to multiple experts in several antitrust litigations and investigations involving allegations of anticompetitive behavior to maintain exclusivity in the relevant market.

White Paper, August 2011