We provide litigation support – class certification, damages, liability, and impact – in all of our practice areas: antitrust, forensic accounting, breach of contract and business torts, medical malpractice and personal injury, and econometric consulting.
Courts and competition authorities are key features of modern competitive markets. These institutions set and enforce the rules of competition in various and complex ways that often present considerable risks to firms accused of violations, and opportunities to firms who believe they are the victims of anti-competitive practices. Because many antitrust problems are essentially economic in nature, economists play a leading role in the antitrust litigation process.
We are highly skilled in helping firms and their attorneys manage antitrust risk. We have extensive experience in providing expert testimony at all stages of the litigation process in cases involving allegations of both unilateral and coordinated anticompetitive conduct.
Forensic accountants use accounting and auditing techniques to measure the amount of a fraud, explain how a fraud took place, and describe the weaknesses in systems that might have allowed the fraud to occur. Forensic accounting analyzes transactions, explains how they should have been reported, and determines who was harmed or benefited from the incorrect reporting.
Breach of Contract and Business Torts
A compensatory damages award seeks to return the injured plaintiff to the position the plaintiff would have been “but for” the actions of the defendant. Measurement of damages can be complex. Accounting and financial models are employed to show which sales were impacted and which costs were increased. These models can be used to estimate how long profits were affected and the impact of plaintiff’s mitigation (or failure to mitigate) on damages. In some instances, valuation models are used to quantify the harm done by the defendant’s actions.
Product defect cases present similar issues. Suppose a product is alleged to fail prematurely because of a design defect. What is the nature of the harm to consumers, and how can it be quantified? In a product defect class action, are all, or only some, consumers injured?
Medical Malpractice and Personal Injury
Iatrogenic injuries are an inescapable risk of surgical interventions. Many products cannot be made entirely risk-free and remain commercially viable. In cases where medical interventions and product introductions lead to injury, it is often necessary to place a dollar value on the harms suffered. This can be relatively straightforward, as when lost earnings for an injured person who had a long work history must be calculated. They can also be quite complicated. Suppose the injured party was a child? What is the economic value of non-market production, such as household service?
Econometric analyses, when done correctly, can provide useful evaluations of policies and strategies that have been implemented, or are being contemplated, by public and private sector actors. We have extensive capabilities in econometric modelling for litigation support, with virtually unlimited capacity to handle large datasets and complicated statistical problems. We have likewise conducted econometric analyses for clients outside of the litigation area, such as outcome analyses of open-label extensions for (Phase IV) clinical trials, and economic outcome analyses adjunct to Phase III clinical trials.
The Litigation Process
We provide litigation support in each of our practice areas – antitrust, forensic accounting, breach of contract and torts, medical malpractice and personal injury, and econometric consulting – at each of the four stages of the litigation process:
Class action litigation presents unique challenges to all participants. At the certification stage, with “merits-based” questions ostensibly off the table, analysts seek to determine whether the key questions of impact and damages can be examined using common methods, or whether these questions (or perhaps their answers) are individualized and, therefore, uninformative for the class more generally. This is a complex and contentious area, with the legal standards in flux.
Proof that a violation has occurred is the first step in the resolution of a claim. Defendants can plead guilty, forensic experts can opine whether relevant reporting requirements were violated, and witnesses can offer oral testimony. Documentary evidence, especially in the digital era, is often of fundamental importance in establishing the effect of a violation. But analysis of documents is not the domain of economics. We specialize in economic proofs of liability, which complement the other forms of evidence, and provide important and unique insights into how to weigh and interpret other forms of evidence.
Proof of impact is often evasive. Even with liability established, how does one determine whether a defendant’s attempted misconduct causally and materially affected aplaintiff’s economic well-being? Unlike liability for misconduct, which often requires analysis of forensic or documentary evidence, proof of impact is most often statistical. In particular, are plaintiffs significantly worse off in the “actual world”, i.e., given the alleged attempt to harm them than they would be in a statistically constructed, hypothetical “but-for world in which defendant’s conduct has not occurred?”
Liability and Impact are binary (either/or) outcomes. Damages analyses extend these findings to a determination of the quantitative extent of harm. The central question here is how much worse the plaintiff’s economic situation is in the actual world (with the defendant’s conduct) relative to a relevant “but-for” world.