By Richard Manning and Fred Selck
A new class of anti-obesity medications (AOMs) called GLP-1s have been shown to be highly effective at helping people lose weight. Given the efficacy of GLP-1s, and the significant long-term costs associated with treating obesity and its related diseases, there is increasing pressure on public and private health insurers to cover AOMs. This white paper by Richard Manning and Fred Selck finds that when current state market dynamics and assumptions are included in precise financial analytics, treating obesity does not present the threat to Medicare’s financial solvency that other recently published analyses suggest.
Economic analysis performed by Dr. Anup Malani and the Secretariat team demonstrates that a preliminary injunction is warranted.
Natera, Inc., which specializes in cell-free DNA testing technology, sought a preliminary injunction against competitor NeoGenomics Laboratories, Inc. (“NeoGenomics”). Revolutionary cell-free DNA detection methods have the potential to detect cancer prior to conventional diagnostic methods, and thereby have the potential to significantly improve patient outcomes. Secretariat* and attorneys at Quinn Emanuel Urquhart & Sullivan presented a comprehensive analysis in support of a preliminary injunction on NeoGenomics’s RaDaR product.
After considering Secretariat’s analysis and the legal arguments of Natera’s attorneys, U.S. District Court Judge Catherine Diane Caldwell Eagles granted Natera a preliminary injunction.
For a preliminary injunction to be granted, the patent holder must demonstrate that (1) it is likely to succeed on the merits (2) it is likely to suffer irreparable harm in the absence of preliminary injunctive relief, (3) the balance of hardships favors the patent holder, and (4) whether an injunction is in the public interest. Secretariat evaluated factors 2, 3, and 4.
For irreparable harm (factor 2), Secretariat evaluated harms that Natera would face in the absence of a preliminary injunction and whether those harms were quantifiable and compensable via an award of damages. Secretariat’s analysis involved evaluation of the complex and unique dynamics of the marketplace in which RaDaR and Natera’s Signatera product compete, first-mover advantages, the competitive relationship between the parties, and the nexus between the alleged infringement and the harms faced. Based on the analysis performed, Secretariat determined that Natera would face irreparable harm in the absence of a preliminary injunction and that remedies under the law were insufficient to compensate Natera for the irreparable harm. Judge Eagles agreed, noting that “Natera is substantially likely to suffer irreparable harm from NeoGenomics’s ongoing infringement[.]”
For the balance of harms (factor 3), Secretariat evaluated the harm Natera would face in the absence of a preliminary injunction relative to the harm NeoGenomics would face if an injunction were granted. Secretariat determined that the balance of harms favored Natera. Judge Eagles agreed, noting that “[t]he harm to Natera if a preliminary injunction is not granted outweighs the harm to NeoGenomics in granting the injunction.” Judge Eagles went on to note that “Signatera has been on the market longer and is predicted to be a major contributor to Natera’s future success. In comparison, RaDaR is relatively new to the market and is not a major product in NeoGenomics’ portfolio. Natera’s projected revenue streams and dependence on Signatera tips the balance of equities in favor of granting the preliminary injunction.”
For the public interest (factor 4), Secretariat evaluated if a preliminary injunction would harm patients and if there were alternative treatment options available to patients should the injunction be granted. Secretariat determined that protection of intellectual property rights outweighed any potential harm caused by an injunction on RaDaR, in large part because Natera’s competing product, Signatera, could be substituted in place of RaDaR. Judge Eagles agreed, noting that “[t]he public interest in enforcing patent rights tips in favor of granting a preliminary injunction. Anyone in need of a tumor informed MRD test will be able to get one from Natera; Signatera is clinically validated for use with the same cancers as RaDaR.”
NeoGenomics was allowed to continue using RaDaR in patients already using RaDaR, in support of research and development on projects or studies that began before the entry of the injunction, and in clinical trials in process or already approved by an agency in the United States.
Dr. Malani was supported by Vice President Dr. Anushree Subramaniam, Managing Director Dr. Matt Farber, Director Kristyn Berretta, Senior Associate Eric Dragon, Senior Associate Isaiah Kline, and Senior Associate Judson Potenza.
A link to the Order granting the preliminary injunction (subscription may be required) is available here.
The preliminary injunction in this matter follows a permanent injunction in the Natera v. ArcherDx matter where Secretariat provided comprehensive economic analysis relating to the appropriateness of a permanent injunction. Coverage of the Natera v. ArcherDx matter is available here.
*Work was performed by team members at Intensity LLC. Intensity is part of Secretariat.
We are pleased to announce the promotion of four individuals to the role of Managing Director: Stuart Allan, Bryan D’Aguiar, Matt Farber, and Ryan Marsh.
According to Managing Director Don Harvey, “Earning the title of Managing Director is a demonstration of high-quality work, leading through challenging situations, and earning clients’ trust. It requires a commitment to developing best-in-class expertise and sharing it with our professionals so we nurture the next generation of talent. I am incredibly proud to call Stuart, Bryan, Matt, and Ryan my colleagues, and I wish them continued success.”
Learn more about our new Managing Directors.
Stuart Allan | Dubai
Stuart Allan is a qualified quantity surveyor and a RICS Accredited Expert Witness with more than 15 years of international experience in construction and engineering. He has acted as quantum expert and as lead assistant to the appointed quantum expert on complex domestic and international construction and engineering projects, including the valuation of claims for damages in several jurisdictions, as well as variations under standard and bespoke forms of contract, disruption, and acceleration. He is also experienced in final accounts, remeasurement, and quantity surveying principles. His experience has been gained across various sectors and has included projects in the United Kingdom, Republic of Ireland, United Arab Emirates, Qatar, Kuwait, Saudi Arabia, Malaysia, Algeria, and South Africa.
Bryan D’Aguiar | Washington, DC
Bryan D’Aguiar leads damages and forensic investigations engagements with his financial and valuation insights and analysis drawn from more than 20 years of worldwide experience. He has provided expert evidence on valuation and damages in several international cases and arbitrations, and he applies his analytical and institutional investing experience in emerging and frontier markets. With a deep understanding of the competitive and business environment in almost 60 countries, he conducts research and valuations across multiple sectors. He has helped institutional investors invest in these markets using various structures, and his work has won numerous awards for high returns through market-leading strategies.
Matt Farber, PhD | Dallas
Dr. Matt Farber applies his deep knowledge of microeconomic theory and data analysis techniques to antitrust, intellectual property, patent infringement, trademark infringement, trade secrets, breach of contract, and false advertising matters. He regularly works in state courts, U.S. district courts, and the International Trade Commission. He has testified in U.S. district court, and provided analyses of monopolization and attempted monopolization, lost profits and reasonable royalty damages, unjust enrichment, irreparable economic injury, domestic industry considerations, and commercial success.
Ryan Marsh, PhD | Dallas
Dr. Ryan Marsh has expertise in labor economics, applied microeconomics, and applied econometrics. He applies his expertise to various complex commercial disputes, including intellectual property, breach of contract, false advertising, and antitrust disputes. He has worked across various industries, including biopharmaceuticals, medical devices, telecommunications, consumer electronics, automobiles, and petroleum, among others. Ryan has been designated an expert on matters before state courts and U.S. district court, and he has provided testimony in a matter before U.S. district court.
At the American Bar Association White Collar Crime conference held in San Francisco from March 6 to 8, 2024, senior DOJ, SEC and CFTC officials provided important announcements and updates regarding their respective enforcement priorities and initiatives. Highlights include the following:
Whistleblowers. In her keynote address, Deputy Attorney General Lisa Monaco announced a new policy (to be codified in the DOJ Manual) to reward whistleblowers who report potential criminal conduct. One likely fact pattern will involve buyers who discover potential misconduct post-closing. The policy will apply only in bona fide, arm’s-length transactions. The new policy is designed to provide assurance to acquirors who were not involved in the alleged wrongdoing, as it occurred prior to their purchase of the target company.
More generally, DAG Monaco announced that DOJ is commencing a “90-day sprint” to announce a pilot whistleblower program, which will closely resemble existing programs at the SEC and CFTC. The policy provides that for a whistleblower to be eligible to receive an award (as a percentage of a forfeiture), the disclosure must involve conduct previously unknown to DOJ (i.e., the whistleblower must be “first in the door”), and will be payable only if and after victims of the crime have been fully compensated. Unlike the SEC’s whistleblower program, whistleblowers who were involved in the wrongdoing will not be eligible for a recovery. Moreover, whistleblowers under the DOJ program will only be available to obtain a recovery if they aren’t eligible for recoveries under other federal programs (including, for example, DOJ’s qui tam program under the False Claims Act, or the SEC or CFTC whistleblower programs).
DAG Monaco explained that the new policy is designed to incentivize companies to strengthen their internal compliance programs. She explained that companies are much better positioned to obtain a favorable outcome “if you knock on our door before we knock on yours.” She anticipates that primary categories of wrongdoing to which the new policy will apply include bribery & corruption, financial crimes, and domestic bribery.
DOJ publicized the new initiative the day after DAG Monaco’s address.
Recidivism. A panel discussion involving senior DOJ, SEC and CFTC officials examined the issue of corporate recidivism. DOJ and the SEC have adopted new measures involving companies, not individuals, who repeatedly commit offenses. Under DOJ’s new policy, the same factors will be applied as those in effect for individuals: namely, that successive or consecutive deferred prosecution agreements will be strongly disfavored, and that a company’s entire criminal, civil and regulatory history will be considered in determining a resolution. Relevant factors will include the following:
- Prior misconduct involves criminal resolutions in the United States, as well as prior wrongdoing involving the same personnel or management as the current misconduct.
- Dated misconduct (occurring 10 years or more prior to the current event) will generally be accorded less weight.
- The nature and circumstances of the prior misconduct, including whether it shared the same root causes as the present misconduct. Some facts might indicate broader weaknesses in a company’s compliance culture or practices, such as wrongdoing that occurred under the same management team or executive leadership.
- For companies in highly regulated industries, whether the alleged wrongdoing is an outlier, or a more common occurrence among competitors.
SEC Enforcement Director Gurbir Grewal stated that the SEC is uniquely focused on the recidivism issue. He acknowledged that larger public companies, due to their size and geographic reach, will have a greater likelihood of repeat offenses, and that the SEC’s consideration of recidivists will include an examination of different types of misconduct – i.e., those that are technical violations of federal securities laws versus those that are more substantive. He emphasized that transparency and trust are the hallmarks of the SEC’s approach to recidivists – i.e., that there is no separate, more lenient set of rules for larger, more powerful companies.
On the issue of penalties, Director Grewal stated that the SEC has an array of tools to use in sanctioning recidivists. These include higher, more severe financial penalties; officer and director bars; and requiring corporate undertakings – including the appointment of compliance monitors or consultants. He stated also that the SEC will place increased emphasis on admissions of wrongdoing in matters involving recidivists.
Ian McGinley, the Director of Enforcement at the CFTC, summarized the Commission’s September 2023 guidance on factors to be considered when determining penalties for repeat corporate offenders. These include: (i) the nature/root causes of the misconduct; (ii) whether the repeat misconduct occurred under the same management team; (iii) the timeframe between offenses; and (iv) the extent and effectiveness of remedial action taken by the company after the initial offense. He stated that the CFTC’s range of penalties for corporate recidivists are largely the same as the SEC’s. He also noted that CFTC policy is to recommend the appointment of an independent monitor or consultant in recidivist cases.
Compensation / Clawbacks. DAG Monaco also emphasized DOJ’s continuing focus on holding individual wrongdoers accountable, including by demanding clawbacks (of compensation or proceeds of wrongdoing) as part of a resolution. She emphasized that DOJ’s policies regarding voluntary self-disclosure, by individuals and companies, are designed “to make the math easy” – i.e., that a voluntary disclosure will always lead to a better outcome, including possibly no requirement for a guilty plea. She emphasized that all of DOJ’s white-collar policies are designed to incentivize companies to invest in and actively manage their compliance programs – as, in her words, “the cost of compliance will be much less than the cost of a second violation.”
In sum, there was a uniformity of messages from the nation’s regulators of the capital markets and prosecutors of corporate / financial crimes: a greater emphasis on individual accountability, less tolerance of corporate recidivism, and more active encouragement of voluntary self-disclosure and whistleblowing. The underlying message is that investments by companies in risk assessments and compliance programs can reap significant benefits if wrongdoing occurs.
Secretariat Advisors is a leading provider of investigative, compliance, risk assessment, and testimonial services in matters involving white-collar crime and regulatory compliance. Please contact our experts if we may be of assistance.
Today, Secretariat, the global disputes, economics, and expert witness advisory firm, welcomes leading forensic accounting and internal investigations expert Edward Westerman to the firm as Managing Director. Based in San Francisco, Westerman will help drive the strategic expansion of Secretariat’s global Investigations practice, which includes consulting and expert services that address complex business challenges in financial and accounting disputes, governmental and regulatory inquiries, and financial crimes.
In a career spanning more than 25 years, Westerman has earned a stellar reputation as a trusted advisor to legal counsel and boards of directors when handling high-stakes internal investigations and addressing “bet the company” situations. He is regularly retained in connection with investigations involving SEC and DOJ government inquiries, whistleblower allegations concerning accounting and financial reporting fraud, misappropriation of intellectual property and other assets, merger and acquisition fraud, embezzlement, insider trading, Foreign Corrupt Practices Act (FCPA) violations, and public corruption.
“When companies and their counsel are confronted with extraordinary situations that put their reputations and future success on the line, few names are trusted like Ed Westerman,” says Secretariat Managing Director Don Harvey. “Ed’s experience and leadership are second to none when it comes to addressing a broad array of internal investigations. He is exactly the right person to help lead the charge as we grow our team and capabilities in these crucial areas.”
Westerman’s arrival closely follows the addition of senior investigations and regulatory advisory teams based in Dubai, London, and Chicago. He will now help Secretariat expand its global investigations service offerings in key industry verticals, including healthcare, financial services, and technology, as well as develop new services to address areas such as cybersecurity, sanctions, and business intelligence.
“The regulatory risks that organizations and their leaders face today demand swift and precise responses. Secretariat’s experts have built a reputation for quality in helping clients navigate critical situations with integrity and independence,” says Westerman. “I am excited to build upon the investigative capabilities of the firm and be a part of this impressive growth story.”
Before joining Secretariat, Westerman held investigations leadership roles at FTI Consulting. In addition to his role serving outside counsel and boards of directors, he has served in various forensic engagements as an arbiter, court appointed special master, and third-party neutral.
About Secretariat
Secretariat experts are trusted in the highest-stakes legal, risk, and regulatory matters around the world. With more than 500 professionals located in key commercial and arbitration centers, renowned law firms, leading corporations, and influential institutions rely on our disputes, economics, forensics, and data analytics expertise to answer complex business and legal challenges with clarity and confidence. Learn more at www.secretariat-intl.com.
Media Contact:
Nathan Jenks
+1 773 220 8896
njenks@secretariat-intl.com
Comprehensive economic analysis performed by Secretariat expert Dr. Anup Malani and the Secretariat team demonstrates that a permanent injunction is warranted.
Natera, Inc., which specializes in cell-free DNA testing technology, sought a permanent injunction against competitor Invitae Corp. At a trial held in Delaware district court earlier this year, Invitae was found to infringe Natera’s patents. Revolutionary cell-free DNA detection methods have the potential to detect cancer prior to conventional diagnostic methods, and thereby have the potential to significantly improve patient outcomes. Secretariat* and attorneys at McDermott Will & Emery presented a comprehensive analysis in support of a permanent injunction on Invitae’s PCM product.
After considering Secretariat’s analysis and the legal arguments of Natera’s attorneys, U.S. District Court Judge Gregory B. Williams granted Natera a permanent injunction.
For a permanent injunction to be granted, the patent holder must demonstrate that (1) it faces irreparable injury, (2) there is no adequate remedy under the law to cure the irreparable injury, (3) the balance of hardships favors the patent holder, and (4) the public interest would not be harmed if an injunction is granted. Secretariat evaluated each of these factors.
For irreparable injury and lack of adequate remedies under the law (factors 1 and 2), Secretariat evaluated harms that Natera would face in the absence of an injunction and whether those harms were quantifiable and compensable via an award of damages. Secretariat’s analysis involved evaluation of the complex and unique dynamics of the marketplace in which PCM competes, first-mover advantages, the competitive relationship between the parties, and the nexus between the alleged infringement and the harms faced. Based on the analysis performed, Secretariat determined that Natera would face irreparable injury in the absence of an injunction and that remedies under the law were insufficient to compensate Natera for the irreparable injury. Judge Williams agreed, noting that “Natera would suffer irreparable injury if the legacy PCM is not enjoined. The PCM market is nascent, and there are significant first-mover advantages. … That Natera and Invitae are competitors and Natera has lost market share strongly suggests irreparable harm.” Judge Williams also determined that “the remedies available at law are unable to adequately compensate Natera.”
For the balance of harms (factor 3), Secretariat evaluated the harm Natera would face in the absence of an injunction relative to the harm Invitae would face if an injunction was granted. Secretariat determined that the balance of harms favored Natera. Judge Williams agreed, noting that “[w]hen the harms an infringer faces are ‘almost entirely preventable’ and triggered by a ‘calculated risk to launch its product pre-judgment,’ the balance of hardships strongly tilts in favor of the patentee.”
For the public interest (factor 4), Secretariat evaluated if an injunction would harm patients and if there were alternative treatment options available to patients should the injunction be granted. Secretariat determined that the public interest would not be harmed by an injunction on PCM, in large part, because Natera’s competing product, Signatera, could be substituted in place of PCM. Judge Williams agreed, noting that Natera’s competitive product, Signatera, appears to be equally accurate, covers all the same diseases, and has sufficient capacity to meet the market’s needs.”
Invitae was allowed to continue using PCM in ongoing clinical trials, for updating old studies, for quality control purposes, and for patients already using PCM.
The permanent injunction follows a $19 million infringement verdict against Invitae where Secretariat expert Dr. Ryan Sullivan provided expert testimony at deposition and at trial relating to damages. Dr. Malani and Dr. Sullivan were supported by Managing Director Aminta Raffalovich, Vice President Dr. Anushree Subramaniam, Vice President Dr. Matt Farber, Director Dr. Stephanie Khoury, Director Robert Flanagan, Economist Dr. Kyle Kost, Manager Maxwell Urman, and Senior Associate Nathaniel Tolles.
Law360 coverage and a link to the Order granting the permanent injunction (subscription may be required) is available here.
*Work was performed by team members at Intensity LLC. Intensity is part of Secretariat.
We are pleased to announce the expansion of our Dubai office by establishing a new team focused on global investigations and compliance services. The team is led by the recent additions of recognized global experts Bhavin Shah, Stephen Millington, and May Mhanna, each joining as a Managing Director.
Bhavin Shah’s career spans more than 20 years, helping clients navigate intricate legal matters, conduct multi-jurisdictional investigations, steer regulatory negotiations, manage crises, and implement robust anti-money laundering (AML) strategies. His global experience includes working with Boards of Directors, CXOs, government regulators, and leading law firms that span multiple industries, including financial services, sovereign wealth funds, public sector entities, and governmental institutions. He has advised on high-profile corporate failures, enforcement actions, regulatory monitorships, and regulatory remediation plans for well-known global brands and financial institutions.
Stephen Millington is an expert in forensic accounting, financial investigations, and disputes with more than 20 years of experience. Working internationally throughout his career, including being based in the Middle East for more than a decade, he has led numerous cross-border investigations requiring the unraveling of complex structures and transactions, including tracing those transactions through multiple entities and jurisdictions. He has advised executives, Boards of Directors, regulators, and government bodies on the best strategies for approaching these investigations and recovering funds. Having worked across a range of industries he is known for his methodical approach to solving complex financial problems, achieving effective resolutions, and recovering funds.
May Mhanna brings more than 17 years of experience advising clients across the Middle East and North Africa (MENA) region on financial and operational engagements. Her expertise spans a range of clients, including governmental bodies and national and multinational enterprises, predominantly within financial services and public sectors. Her expertise covers forensic investigations and monitorships, crisis management and special situations, large-scale remediation reviews, financial crimes and anti-money laundering (AML), corporate strategy, and public policy advisory.
“The addition of this distinguished and talented team is a natural expansion of our ability to address clients’ complex risk, regulatory, and legal challenges with world-class investigative and compliance skills that span industries and geographies,” says Secretariat Managing Director Don Harvey. “Each team member is a trusted advisor to their renowned law firm, corporate, and institutional clients, adding great depth to the dynamic talent we have at Secretariat.”
Speaking on behalf of the team, Managing Director Bhavin Shah says, “Secretariat’s stellar reputation and multidisciplinary capabilities are second to none. The firm is the ideal platform for us as we expand how we help clients address the high-stakes investigative and regulatory matters they face daily.” Managing Director Stephen Millington adds, “The opportunities for our team to put their expertise to work and grow their careers are endless with Secretariat. We are excited to help the firm grow in the MENA region and beyond.”
The team will operate from a new office located in the Dubai International Finance Centre (DIFC) at Unit 1207, Index Tower.
Secretariat is proud to serve as a Gold Sponsor for the 5th Edition of LawInSport’s Sports Law Arbitration Moot.
The SLAM Grand Finals of the competition take place on 12-13 April 2024 at the Court of Arbitration for Sport in Lausanne, Switzerland. The SLAM is a student moot competition, organised to promote greater knowledge of the values and rules of international sports arbitration, the go to dispute resolution mechanism in the sector.
On December 18, 2023 the Federal Trade Commission and Department of Justice (collectively, the Agencies) released the 2023 Merger Guidelines.[1] The new guidelines are a modification of the draft Merger Guidelines published in July 2023 and replace the 2010 Horizontal Merger Guidelines and the 2020 Vertical Merger Guidelines. A previous Secretariat client alert described changes in the Agencies’ approach to market definition that were contemplated in the draft Merger Guidelines. That previous Note is available here.
This note provides an update to our previous discussion. While the details of the hypothetical monopolist test have been moved out of an appendix and into the body of the document, the approach to market definition changed very little between the July 2023 draft and the final versions. Thus, our earlier Note’s analysis holds as much for the final Merger Guidelines as it did for the July 2023 draft Merger Guidelines. We will not repeat all that we said in that earlier Note, so for readers interested in those details we recommend our previous Note. Here we will only touch on the most significant points.
Broadly speaking, the new Merger Guidelines allow more leeway in how the Agencies can define relevant antitrust markets.[2] In a discussion piece, Susan Athey and Aviv Nevo (respectively, the Chief Economist of the Antitrust Division and the Director of the Federal Trade Commission’s Bureau of Economics), state that this “gives the Agencies the option to focus on the loss of competition between the parties rather than fight over how narrowly a market could be properly defined.”[3] Aviv Nevo explained in an FTC/DOJ workshop that the benefit of this approach is that in cases where market definition is difficult, the new merger guidelines allow the Agencies to define a broad market and focus on the competitive effects.[4] Nevertheless, in our experience, the agencies rarely challenge a horizontal merger where the shares in the claimed market do not meet the threshold for a presumptive concern. It is not clear to us that the 2023 Guidelines make merger challenges easier when mergers that fall below the relevant market share thresholds.
Our view, articulated in the previous Note, is that the added discretion over market definition is not necessarily an advantage for the Agencies or private plaintiffs, who bear the burden to substantiate their claimed markets.[5] While we understand that in the 2023 Merger Guidelines the Agencies seek to argue that there is not necessarily a unique antitrust market for a particular case,[6] in antitrust cases courts commonly view market definition as one of the primary areas of dispute. As it is well established in the case law, that view will be slow to change. Less specificity in the 2023 Merger Guidelines might increase the scope for dispute potentially making it harder for plaintiffs to establish that their market definition is correct.
More specifically, the new Merger Guidelines no longer include the smallest market and circle principles. The smallest market principle (described in the 2010 Horizontal Merger Guidelines §4.1.1) allowed practitioners to distinguish among several potentially valid markets and identify a relevant antitrust market by establishing that it should be no bigger than necessary to satisfy the test. Removing the smallest market principle potentially opens the door to broader markets.
The circle principle holds that for any two products (A and B) in an antitrust market, other products should also be included in the market if they are closer substitutes to A than B is to A. In contrast to the potential effect from removing the smallest market principle, removing the circle principle potentially opens the door to narrower market definitions by excluding some products that would have otherwise been included in the market.
The removal of both principles takes away some of the specificity that had been previously included. Other changes to the Agencies approach to market definition in the 2023 Merger Guidelines include the addition of One-Stop markets and markets involving bundled goods as potentially relevant antitrust markets. While such markets were sometimes defined in practice, it is not clear to us how their inclusion in the Guidelines will affect merger enforcement going forward.
[1] See, U.S. Department of Justice & Federal Trade Commission, Merger Guidelines, (2023) (henceforth Merger Guidelines), available at https://www.ftc.gov/system/files/ftc_gov/pdf/P234000-NEW-MERGER-GUIDELINES.pdf ; Federal Trade Commission, Federal Trade Commission and Justice Department Release 2023 Merger Guidelines, December 18, 2023, available at https://www.ftc.gov/news-events/news/press-releases/2023/12/federal-trade-commission-justice-department-release-2023-merger-guidelines.
[2] The new Merger Guidelines also introduced the concept of a small but significant and non-transitory increase in price or other worsening of terms (“SSNIPT”). Merger Guidelines supra note 1, §4.3.A. It replaces the small but significant and non-transitory increase in price (“SSNIP”) from previous guidelines that was used to describe the change in price used in the hypothetical monopolist test. While perhaps not explicit in previous guidelines, we believe it was well understood by antitrust economists and lawyers that, even under previous guidelines, one could perform the hypothetical monopolist test by adjusting the non-price terms of trade if the situation warranted it. Thus, it is not clear to us that this change will have much of a practical effect on the implementation of the hypothetical monopolist test.
[3] See, Susan Athey & Aviv Nevo, DOJ and FTC Chief Economists Explain the Changes to the 2023 Merger Guidelines, ProMarket, December 19, 2023, available at https://www.promarket.org/2023/12/19/doj-and-ftc-chief-economists-explain-the-changes-to-the-2023-merger-guidelines/
[4] See,DOJ/FTC 2023 Draft Merger Guidelines Workshop, September 5, 2023. Video available at https://www.ftc.gov/media/draft-merger-guidelines-workshop-september-5-2023
[5] The burden of proof is closely tied to the ability to infer loss of competition from evidence and facts by using analytical tools, such as probability and statistics. See, for example, Merger Guidelines supra note 1, §1 & ft. 7.
[6] See, for example, Merger Guidelines supra note 1, §4.3. “Market definition ensures that relevant antitrust markets are sufficiently broad, but it does not always lead to a single relevant market.”
40 Secretariat experts have earned the distinction of being included in the Who’s Who Legal Arbitration 2024 report, the industry’s leading list of arbitration professionals.
Overall, this outstanding performance positions Secretariat as the No. 2 ranked Expert Firm with the same top position in WWL’s high-profile categories of Global Elite Thought Leaders and Future Leaders. WWL’s Arbitration 2024 report highlights the world’s leading arbitration experts through an analysis of the market and references given by clients.
Global Elite Thought Leaders
Mike Allen
Alexander Demuth
Amit Garg
Howard Rosen
Mike Saulsbury
Kiran Sequeira
Recommended
Chaitanya Arora
Drew Baiter
Ben Burley
Neil Gaudion
Don Harvey
Terry Hawkins
Liam Holder
Mrinal Jain
Mehmet Karakoc
Julius Koo
Michael Kling
Chris Larkin
Chris Milburn
Nishad Morjaria
Alexandre Rivière
Paul Roberts
Garrett Rush
Ted Scott
Joe Skilton
George Taft
Mark Taylor
Travis Taylor
Eddie Tobis
Meera Wagman
Future Leaders
Kagan Aktas
Paul Baez
Conrad Bromley
Bryan D’Aguiar
Stuart Dekker
Miao Gu
Abi Harris
Gregory Johnson
Alexander Messmer
Stephanie Tombling
Three Secretariat experts have been honored with the 2024 Lexology Client Choice Award. Congratulations to the members of our team who have earned recognition in the following categories:
Drew Baiter
Arbitration Expert Witnesses (Mexico)
Joel Glover
Construction – Expert Witnesses (Australia)
Howard Rosen
Energy – Experts (Canada)
Established in 2005, Lexology’s Client Choice Awards recognize the excellent client care the recipients provide, the quality of their service, and their ability to add real value to clients’ business. This year’s winners were chosen from a pool of more than 2,000 individual client assessments.
We are proud to announce Secretariat has been named the Construction Expert Witness Firm of the Year 2023 by Who’s Who Legal (WWL). Each year, WWL issues awards that recognize the very best in the international legal and expert witness profession across dozens of practice areas and jurisdictions.
“This is a significant milestone in Secretariat’s history,” said Secretariat Managing Director Don Harvey. “It has been made possible through the dedication, unwavering client service, and deep expertise of the best talent in the business. It also reflects the values we instilled in the firm when we were founded, including a commitment to collaboration and delivering the highest quality work. These are the qualities that define our culture and make me proud of our team every day.”
Originally founded as a specialized construction delay advisory firm, today Secretariat has grown to become one of the most trusted firms handling complex construction dispute matters around the world. The firm’s extensive global team specializes in large-scale construction disputes with a focus on delay and quantum analysis, international arbitration and litigation, as well as standard of care, government contracting, and forensic and economic damages. This includes 43 professionals recognized by WWL for their excellence in construction, including 13 in the most prestigious category of Global Elite Thought Leaders – more than any other expert services firm.
This year’s WWL Awards ceremony was held at the Honourable Artillery Company on 9 November in London. Proceeds from the awards are donated to the Swawou School for Girls in Sierra Leone.