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As one of the world’s largest and fastest-growing sectors, the high-tech industry is incredibly complex to navigate. The Brattle Group offers deep experience in economic and financial matters involving established and nascent technology sectors, including the globe’s rapidly evolving digital economy.

As once-unrelated economic sectors are brought closer together by digital transformation, our clients are facing new and increasingly complex economic and regulatory issues. Our experts support clients in matters related to litigation, regulation and policy development, valuation, and private advisory analyses.

The last decade has seen the transformation of global supply chains with e-commerce and SaaS, and the growth of new industries like electric cars, clean energy, and online advertising. Addressing these types of modern technology disputes requires the combination of three skillsets:

  1. Specific scientific and technological expertise
  2. Sophisticated data analytics
  3. Traditional economic and financial analysis

Our experience in these three areas has allowed us to build a team that seamlessly integrates technological expertise with legal professionals and other experts.  

Areas of Expertise

Engagements
REPRESENTATIVE ENGAGEMENTS

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

Analysis of irreparable harm in software
Brattle prepared testimony on irreparable harm that was used to successfully defend a global human resources consulting company against a competitor’s efforts to obtain a preliminary injunction that would have barred the consulting company from selling its software products for a two year period. Our testimony showed that our client had an insignificant share of the plaintiff’s target market and rarely marketed its product to the same firms as the plaintiff. Moreover, despite the plaintiff’s claims to the contrary, a large number of firms provide the accused software to customers. Hence, any injunction to remove our client from the market would have a de minimis impact on the fortunes of the plaintiff. This case settled on favorable terms for our client.

Assessment of damages arising from healthcare data breach

A Brattle team worked on behalf of the plaintiffs in a class action lawsuit related to a high-profile breach of Premera Blue Cross’s healthcare data. We conducted numerous analyses and prepared reports explaining how to quantify the damage inflicted on the individuals whose personal data was misappropriated. Using a novel approach, we demonstrated how to use data related to dark web sales of personal information to objectively measure consumer losses from the breach.

Auction valuation and bidding
The Brattle Group assists clients by serving as auction valuation and bidding advisors, auction managers, and as experts in auction theory for telecommunications companies. We advised bidders in the Canadian 700 MHz and AWS spectrum license auctions and the FCC 700 MHz and AWS spectrum license auctions. We also evaluated the performance of TV stations when repacked in an incentive auction, analyzed likely auction outcomes for TV broadcasters participating in incentive auction, and estimated the economic value of reallocating TV spectrum for wireless broadband. We also advise participants in reverse and forward auctions.
Competitive pricing analysis for Comcast
Comcast operated a regional sports network and also various cable systems on which that network was carried. A number of those cable systems were facing competition from rival operators that wished to also carry the Comcast-owned sports network. A Brattle principal was retained by Comcast to assist in determining a non-discriminatory price for the network to offer rival operators.
Consultation and market analysis

In a patent infringement lawsuit involving artificial heart valves, Brattle provided consultation and market analysis. The technology in question enabled the replacement of damaged heart valves via transluminal catheter, eliminating the need for invasive open-heart surgery. Brattle’s work addressed the relationship between thoracic surgeons and interventional cardiologists in the commercialization of this technology, identified a series of medical innovations that share important characteristics with it, and discussed some of the specific advantages that the first company to bring an innovative medical device of this nature to market could expect to experience.

Commercial damages in a software licensing dispute

Brattle assessed the damages sustained by a learning and performance software company in a reselling licensing dispute against an enterprise software company. Our team analyzed the sales of software to a large number of customers over multiple years and calculated the amount of licensing and maintenance revenues that should have been received by each party under a number of different counterfactual scenarios. We also analyzed software purchasing behavioral patterns, reviewed pricing, computed the number of sales that were statistically expected, and quantified expected licensing and maintenance revenues to our client. The case settled on confidential terms.

Cost and rate modeling

We have worked extensively in the areas of cost and rate modeling and have testified in various state proceedings on the appropriate economic principles for determining the price of unbundled network elements and an efficient wholesale discount. We have developed comprehensive models and provided expert testimony concerning the costs and prices of unbundled network elements (UNEs), using the Total Element Long Run Incremental Cost (TELRIC) methodology.

Cost modelling for broadband networks

In connection with the U.S. Federal Communications Commission’s (FCC) Connect America Fund and Universal Service Reform, Brattle developed a model for GCI (a wireless and cable company) to determine the costs and feasibility of deploying wireless broadband networks in rural areas throughout the U.S., including remote parts of Alaska. Brattle’s model applied GIS-based analysis to segment geographies and determined options and costs for last mile as well as middle mile (fiber, microwave, and satellite) broadband solutions. The results of Brattle’s model were cited by the FCC in its 2016 Report and Order on Universal Service. This work built upon prior Brattle engagements to develop cost models for wireline and wireless voice and broadband networks used in a range of state and federal regulatory proceedings.

Defended major technology services company in commercial damages suit
Analyzed economic damages resulting from allegations that a billing system was not implemented per the specifications of the contract. Constructed a model to represent the “but-for” scenario, in order to assess the magnitude of claimed losses due to the alleged breaches of warranty. The matter was litigated in UK courts.
Determination of License Fees for Satellite Radio

The Brattle Group was retained by Counsel for SoundExchange, a performing rights organization that collects and distributes royalty payments on behalf of record labels and recording artists, in a proceeding before the Copyright Royalty Board to determine the license fee that SiriusXM Satellite Radio will pay for the right to broadcast sound recordings from 2018 through 2022. A Brattle team worked with academic survey experts to develop and analyze evidence on the degree to which satellite radio and streaming music services are viewed as substitutes for one another. We assisted attorneys from Jenner & Block in preparing for taking depositions and cross-examining SiriusXM’s survey experts, which played a key role in the determination of the royalty rate.

Development of uniform guidelines for EU telecommunications regulators
Brattle experts prepared a report for the European Commission’s Directorate-General (DG) for Communications Networks, Content & Technology that offers guidelines for EU-based National Regulatory Authorities (NRAs) to use when calculating an allowed rate of return—typically the weighted average cost of capital (WACC)—for electronic telecommunications operators with significant market power (SMP). The report outlines a common set of procedures for NRAs to use when estimating WACCs in the EU telecommunications sector that ensures that price differences reflect economic fundamentals, and is more reliable than the methods that were previously used and thus the new method is unlikely to be challenged by the European Commission.
Medical device kickbacks investigation

In a False Claims Act (FCA) suit, Brattle supported a testifying expert regarding an investigation into consulting payments that a medical device company made to doctors. The device company and two top executives were accused of paying surgeons to use and promote their products by providing kickbacks in the form of consulting and intellectual property payments. We assisted counsel with initial document production overview and the organization of various types of qualitative and quantitative data, including over 5,000 text messages between executives and doctors along with sales and payment records. Our subsequent analyses tracked the timing of payments received by surgeons with their use of the medical devices, as well as whether these payments were made at fair market value. The case settled.

Nortel bankruptcy proceedings
The Brattle Group was retained by counsel for the UK Pension claimants to opine on allocation approaches and claims issues in Nortel’s bankruptcy proceedings. We developed an economically-rational allocation methodology that, in the absence of an ex ante agreement among Nortel’s legal entities prior to its bankruptcy, reflected the financial and management realities of Nortel’s business operations. A Brattle expert testified on this methodology before both the Delaware Court of Bankruptcy in the U.S. and the Superior Court of Toronto in Canada. Our expert’s recommended pro rata allocation method, with some modifications, was accepted by the Canadian court as “doing what is just in the unique circumstances” of Nortel’s case, and by the U.S. court as “a fair and equitable mechanism.”
Patent damages case regarding cell phone attributes

Brattle principal and Nobel Prize Winner Daniel McFadden provided a rebuttal report on behalf of Apple regarding the misuse of survey methods to measure the value of iPhone’s FaceTime and iMessage features. Professor McFadden found that the survey used by plaintiff was flawed resulting in an upward bias and that the uncertainty surrounding the resulting damage estimates was not addressed or acknowledged.

Proposed mergers involving Comcast
Brattle economists provided testimony on behalf of a third party in several proposed transactions involving Comcast, including the recently proposed Comcast-Time Warner transaction. We performed an analysis of the FCC’s vertical foreclosure and Nash bargaining models applied to the proposed transaction.
Valuation in accordance with GAAP

Brattle was retained to work on behalf of a Fortune 500 technology company in a post-M&A dispute with its M&A counterparty. The two companies disputed the classification of leases and valuation of underlying leased IT equipment in accordance with GAAP. Brattle supported a valuation expert who opined regarding the latter. An arbitration panel relied on the opinions and testimony of the client’s experts, including Brattle’s expert, and awarded over $600 million to the client.

Valuation of telecommunications start-up
A Brattle economist evaluated damages in a contract dispute between a telecommunications start-up and a supplier that agreed to provide equipment to develop wireless local-loop telephone service in eastern Europe. Our work involved supporting an academic expert who evaluated the competitive environment and potential business opportunities for the technology. The case settled on favorable terms.
Vertical restraints analysis in the credit card industry
Brattle has been involved in numerous high-profile antitrust matters in the payment card industry, involving interchange fees, nondiscrimination rules, foreign transaction fees, dynamic currency conversion, and other practices. We have analyzed efficiency benefits and competitive effects resulting from these practices, developed models to identify the underlying conditions required for either anticompetitive or procompetitive behavior, assessed market performance (including firm profitability), provided statistical analyses relevant to defining relevant product markets, and evaluated alleged damages. Brattle economists recently supported American Express in its successful defense against antitrust claims made by the U.S. Department of Justice and others involving its merchant agreements.
Contract dispute between a software provider and management consulting firm
In a contract dispute between a software provider and a major management consulting firm, we provided for the defendant an economic analysis and testimony on the functions covered by the contract, the software, and the consulting firm. This testimony narrowed the range of dispute and formed the basis for a damages model that valued the limited harm claimed by the claimant. The case settled on terms favorable for our client.
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