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Survey data can provide the information necessary to understand consumer behavior
when data do not exist to evaluate a party’s claim. The Brattle Group works with
leading academic and practitioner survey researchers who are experts in designing and
implementing surveys that meet Daubert standards and whose testimony withstands
cross-examination.

We provide comprehensive litigation support in cases that require survey evidence, from survey design, execution, and reporting, to deposition and trial support. We are experienced in coordinating among multiple experts to ensure a seamless presentation of the implications of the survey findings.

Our experts have designed and implemented surveys to address class certification, evaluate liability, and estimate damages in cases involving antitrust, intellectual property and false advertising/Lanham Act, product liability, and consumer protection issues. These surveys have measured consumer willingness to pay for products, the extent to which products are substitutes for one another, and the value that consumers place on specific features of a product.

We use state-of-the-art methods that meet the strictest scientific standards to elicit unbiased, truthful representations of consumer behavior, experiences, perceptions, and preferences. In addition, we have significant experience evaluating the scientific validity of existing market research and surveys conducted by other parties in the litigation.

Engagements
REPRESENTATIVE ENGAGEMENTS

Below is a list of representative engagements for our Surveys practice.

Substitutability of Music Subscription Services

The Brattle Group was retained by SoundExchange, a performing rights organization that collects and distributes royalties on behalf of the recording industry, in a proceeding before the Copyright Royalty Board, to determine the license fee that SiriusXM Satellite Ratio would pay for the right to broadcast sound recordings. We worked closely with an outside academic marketing expert to design and implement a consumer survey that measured the extent to which subscribers of music services would switch to alternative services in the face of price increases. The results of the survey were used to calculate the appropriate royalty rate. We also worked with counsel in evaluating the survey methods of opposing experts.

Valuing Attributes of Music Streaming Services

The Brattle Group was retained by counsel for SoundExchange to measure the value that consumers placed on certain features of alternative music streaming services. We designed and conducted a conjoint survey to estimate the value that consumers place on key attributes of the services, such as their ability to select songs on demand. Brattle principal and Nobel laureate Dan McFadden designed and implemented a conjoint survey to measure the relative value of those features. Those values were used by an economic expert to determine the proper royalty rate that music services should pay record labels and recording artists.

False Advertising Damages

We were retained by a producer of branded nutritional supplements that was accused of collecting a market price premium on its products due to alleged false claims appearing on the product label. Our expert testified that the plaintiff’s expert failed to describe a workable approach for determining damages associated with this price premium on a class-wide basis. We explained that the plaintiff’s proposed use of a conjoint analysis to assess the price premium was unworkable because conjoint survey data only take into account demand side factors whereas a price premium would be the product of both supply and demand factors. Brattle’s expert also explained that the plaintiff’s proposed use of a hedonic analysis was unworkable because the available data would not separately estimate the price premium.

Lanham Act Litigation

A current Brattle principal was retained in a false advertising case in which a consumer products company claimed that a competitor’s advertisements for personal hygiene products contained a misleading comparison. We supported an academic expert in evaluating the market research and product tests conducted by both parties to assess the validity of the claims. Our analysis found that the competitor’s comparisons could not be supported by the evidence. A federal jury agreed with our analysis and returned a verdict in favor of our client.

Trademark Infringement and Trade Dress Case

We were retained in a confidential matter to evaluate the potential effects of a merger of two online companies providing advertising and referral services for businesses. We worked closely with a survey research firm to design a survey of businesses to evaluate the degree to which the businesses would switch their advertising to other websites or traditional media if the merged entity were to increase its price.

Evaluating Market Definition

We were retained in a confidential matter to evaluate the potential effects of a merger of two online companies providing advertising and referral services for businesses. We worked closely with a survey research firm to design a survey of businesses to evaluate the degree to which the businesses would switch their advertising to other websites or traditional media if the merged entity were to increase its price.

Estimating Class Action Damages

We were retained to estimate damages in a case in which a class of consumers sued a software firm, claiming they were deceived into purchasing additional services that were already included in their license. A Brattle principal evaluated the results of a conjoint survey conducted by a survey expert to estimate damages to the class. The case settled on favorable terms. 

Estimating Extent of Counterfeit Product

An international music and film association retained a current Brattle principal to evaluate the methodology and findings of a survey it conducted to estimate the extent of physical piracy of CDs and DVDs in China. After reviewing the survey design, implementation, and results, we provided recommendations regarding how a follow-up survey should be carried out.

Patent Infringement Damages

Brattle experts estimated damages associated with an infringement claim regarding a target device design in a hand-held remote thermometer used by heating and cooling system engineers and operators. Our team used the warranty cards submitted by purchasers of the competing devices to determine the value of the patent. The cards provided the identity and contact information necessary to conduct a telephone survey of buyers. The survey instrument was designed to collect information on the price paid, the type of device purchased, and the importance of a set of device features. State-of-the-art statistical analyses were then used to determine the plaintiff’s lost sales. The jury adopted Brattle’s damage estimate.

Evaluating Trademark Claims

We were retained by a British manufacturer of distinctive footwear claiming that a U.S. shoe company had infringed on the trademark stitching on some of its shoe products. A Brattle economist estimated damages based in part on surveys conducted at shopping malls. Using the survey data, we were able to evaluate the extent to which consumers were confused by the allegedly infringing shoes, measure lost sales, and establish the value of the trademarked stitching, a distinguishing feature of the British company’s shoes. The case settled on favorable terms for our client.

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