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OnPoint Expert Testifies at Trial in TrackTime vs. Amazon

OnPoint patent damages expert witness, Dr. Gareth Macartney, testified as Amazon’s damages expert in TrackTime v. Amazon at a jury trial held in September, 2023 in the U.S. District Court for the District of Delaware. The case involved allegations that Amazon and its subsidiary Audible, incorporated technology patented by TrackTime’s founder Curt Evans into its products and services. TrackTime alleged that Amazon Music’s X-Ray Lyrics feature, which displays synchronized music lyrics while a song plays, as well as Audible’s Immersion Reading “page turn” feature, which allows readers to manually turn the page in an eBook while simultaneously listening to the synchronized audiobook, infringe U.S. Patent No. 8,856,638 B2, “Methods and System for Remote Control for Multimedia Syncing,” assigned to TrackTime. Dr. Macartney provided testimony on damages under an assumption of patent validity and infringement. Following a five-day trial, the eight-person jury found for Amazon in concluding that Amazon did not infringe TrackTime’s patent, which the jury found to be invalid.

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OnPoint Announces the Retirement of Dr. John Connor from Expert Testimony

Since 2014, OnPoint has had the pleasure and honor of working with Dr. John Connor. This year, Dr. Connor announced that he will be retiring from active expert testimony work.

Dr. Connor is commonly regarded as one of the world’s top researchers in cartel studies. He is a Senior Fellow in the American Antitrust Institute which in 2014 awarded him the Alfred E. Kahn Research Award for Lifetime Achievement. When presenting that award, AAI Director Robert Lande described Dr. Connor’s work on cartels as “nothing short of revolutionary” and Dr. Connor himself as “without any doubt the leading cartel researcher and scholar the world has ever known.” In fact, his cartel work is so widely recognized that Dr. Connor is frequently referred to as the “King of Cartels” or the “Cartel Hunter.”

Chief among Dr. Connor’s contributions to the field are his price-fixing overcharges dataset and his award-winning book Global Price Fixing. His price-fixing overcharge dataset is the only one of its kind in existence. Compiled by Dr. Connor since 2005, it contains more than 2,000 overcharge estimates for cartels that existed between 1699 and the present. These overcharge estimates were collected by Dr. Connor from over 500 professional publications and legal decisions dating from 1888. His book Global Price Fixing received two national writing awards in 2002 and 2003, with new editions released in 2007 and 2008. A review of the book in the Journal of Economic Literature described it as “…an invaluable reference for those with a deep interest in the economics of cartels, and a very readable and accessible narrative…on international cartels.”

Dr. Connor is also the author of 19 books and monographs and more than 600 other scholarly publications in economics and law. His research has been cited in more than 75 law-review articles, and in five court decisions. A leading academic economist, Dr. Connor joined Purdue University’s Department of Agricultural Economics in 1983, where he taught industrial and antitrust policy. As a Professor at Purdue, his research focused on international cartels, corporate strategies, price formation, performance outcomes, and the interplay of private decision making with antitrust law and other public policies that influence competition, primarily in the food manufacturing and distribution industries. In 2009, his lifetime achievements were recognized when he was awarded the title of Fellow, the highest honor of the Agricultural and Applied Economics Association.

As an expert witness, Dr. Connor has testified in a wide range of competition matters. During his time at OnPoint, Dr. Connor worked on cartel cases involving milk and dairy products, food-processing chemicals, aftermarket automotive sheet metal parts, natural gas trading, electrical capacitors, and heavy trucks, among other matters.

Dr. Connor is highly respected by his clients. Ike Diel of Sharp Law wrote: “I have worked with John for over 20 years. His knowledge of cartel behavior is second to none. He is an outstanding economic expert but more importantly a true gentleman and friend. I wish him all the best in retirement.”

John also remains incredibly popular with the staff of OnPoint. Kind and generous, with a great sense of humor and a love for good conversation, we will very much miss working with him. We understand that John will continue to research and write, and we hope to collaborate with him on that in the future. We wish him nothing but the best.

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OnPoint Pharma Expert Assists End-Payor Class Cert Against Ranbaxy

On May 14, 2021, U.S. District Judge Nathaniel M. Gorton, sitting in Massachusetts, certified a class of End-Payor Plaintiffs (EPPs) consisting of Third-Party Payors (TPPs) in antitrust and RICO litigation involving applications to produce generic versions of three drugs. Plaintiffs allege that Defendants Ranbaxy and Sun Pharmaceutical conspired to acquire and misuse the exclusivity periods afforded to generic drug manufacturers under the Hatch-Waxman Act, thereby blocking other potential generic manufacturers and delaying for many years the entry onto the market of generic equivalents of Diovan, Nexium, and Valcyte. Their motion for class certification incorporated two reports and testimony from OnPoint pharma expert Laura Craft.

In certifying the EPP class, Judge Gorton relied on Ms. Craft’s explanation of the detailed pharmaceutical transaction data that is available and could be used to identify relevant drug purchases and the eligible TPPs for those purchases. Based on her pharma industry expert testimony, Judge Gorton ruled that the proposed EPP class was ascertainable, and otherwise met the legal requirements for certification of a pharmaceutical class action. He found that Craft “has established that the requisite data exists and has proffered a detailed approach for using it to identify class members.” And the judge cited with approval Ms. Craft’s explanation of the “economic incentives” in the pharmaceutical industry for Pharmacy Benefit Managers (PBMs) and pharmacies to retain prescription drug transaction data, rejecting the Defendants’ suggestion that the necessary data might no longer be available. This is one of a series of decisions in pharmaceutical antitrust cases that secure to insurers and other end-payors the ability to challenge anti-competitive conduct that drives up drug prices.

To learn more about Laura Craft, click here.

To learn more about this decision, click here.

The EPP class is represented by co-lead counsel Lowey Dannenberg, P.C., and The Dugan Law Firm, APLC.

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Agricultural Economics Expert Dr. Jeffrey Dorfman Appointed Georgia State Fiscal Economist

OnPoint congratulates agricultural economics expert witness, Dr. Jeffrey Dorfman, on his appointment as State Fiscal Economist by Georgia Governor Brian Kemp. In this role, Dr. Dorfman will develop forecasts based on Georgia’s tax revenue, work with bond rating agencies to analyze revenue and economic trends, and oversee fiscal impact estimates on tax-related bills.

“Given Jeffrey Dorfman’s extensive background and expertise in economics, I am confident that he is the right choice to serve as the State Fiscal Economist. Over the years, Jeffrey has earned a stellar reputation in his field, mentored countless students to ensure their academic success, and provided critical insight to leaders in the private and public sectors,” stated Governor Kemp.

“I am excited to serve in this new role, and I look forward to providing the State of Georgia and Governor Kemp’s administration the most accurate and timely economic input that I can,” stated Dr. Dorfman.

Dr. Jeffrey Dorfman is an economics professor at The University of Georgia, where he has been on the faculty since 1989. In addition to serving as an agricultural economics expert witness, and working on food production and agricultural resources, Dr. Dorman specializes in valuing real property assets, advising on development projects, crop and flood damage, and various topics in pharmacoeconomics. Dr. Dorfman teaches classes in microeconomic theory, the economics of the food industry, and macroeconomic theory and policy. He performs research on food insecurity, productivity measurement, economic forecasting, a variety of agribusiness topics, development economics, and the economics of growth and sprawl. He has authored three books, most recently Economics and Management of the Food Industry, one hundred academic journal articles, and a variety of other articles published in trade publications, the popular press, and on the web.

Dr. Dorfman will be taking a break from expert witness work during his tenure as Georgia’s State Fiscal Economist. We look forward to his return. To learn more about Dr. Dorfman, click here.

To read the press release announcing Dr. Dorfman’s appointment, click here.

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Antitrust Expert Witness Testifies in Keurig Case

OnPoint antitrust expert witness, Dr. Gareth Macartney, recently gave two days of deposition testimony in an antitrust and false claims lawsuit against Defendant Keurig Green Mountain. Keurig specializes in the manufacture and sale of single-serve coffee brewers and the single-serve portion packs of coffee, tea, and cocoa, that work in those brewers. Keurig’s single-serve portion packs are known as “K-Cups.” Dr. Macartney serves as the economic damages expert retained by Plaintiff Rogers Family Company, makers of the San Francisco Bay Coffee and Organic Coffee Co. brands, which Rogers sold as “OneCups” for single-serve brewers.

The case involves Keurig’s alleged use of monopoly power, exclusionary practices, and false claims to restrict competition from rival portion pack manufacturers, such as Rogers, and to disparage those rivals’ brands in the eyes of customers. As part of his antitrust expert witness analysis and investigation of the effect of the alleged false claims, Dr. Macartney considered allegations that Keurig engaged in monopolization, exclusive dealing, monopoly leveraging, sham litigation, patent misuse, tying, anticompetitive product redesign, conspiracy to monopolize, refusal to deal and group boycott, false and misleading advertising, including in violation of the Lanham Act, and other related activities.

Rogers alleges that Keurig’s anticompetitive behavior prevented Rogers from selling as many of its OneCups as it would have done otherwise and claims the economic damages that resulted. Dr. Macartney has filed three expert reports in this matter over the past year. His antitrust expert witness analysis and investigation of the effect of the alleged false claims included a thorough examination of the single-serve coffee industry, opinions on the appropriate relevant market definition for this case, and evaluation of the record evidence of Keurig’s alleged anticompetitive behavior. Dr. Macartney estimated the lost sales and profits that Rogers suffered as a result of Keurig’s alleged acts. He also estimated the unjust enrichment Keurig enjoyed as a result of its alleged false and misleading claims, in violation of the Lanham Act.

The case is ongoing. To learn more about Dr. Gareth Macartney and his experience as an antitrust expert witness, click here.

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John Oliver Shines National Spotlight on Long Term Care Billing Practices Studied by OnPoint Expert Vivek Shah, Ph.D.

The April 11, 2021 episode of Last Week Tonight with John Oliver focused on long term care facilities for elderly and disabled Americans, and some of the problems they currently present. The show highlighted questionable practices such as understaffing and performing medically unnecessary services for the purpose of maximizing billings to Medicare. Oliver also noted that several corporations that operate long term care and skilled nursing facilities have paid multimillion dollar settlements to resolve allegations of this kind in False Claims Act litigation.

OnPoint expert Dr. Vivek Shah studies and provides expert reports and testimony about Medicare billing practices by skilled nursing facilities. His testimony and reports have addressed practices like the ones described on Last Week Tonight.

Noting how amounts paid to skilled nursing facilities by Medicare were dependent upon therapy minutes provided during specific billing assessment periods, Dr. Shah has analyzed the ramp up in volume of therapy minutes provided during those periods as compared to other periods during which the level of therapy did not affect reimbursement rates. Dr. Shah has also analyzed timesheet data to highlight understaffing at nursing homes and how it leads to concurrent billing by therapists who oversee multiple residents simultaneously. Dr. Shah has estimated the potential Medicare overpayments to skilled nursing facilities as a result of these practices.

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OnPoint Congratulates Tommaso Valletti

OnPoint would like to congratulate Dr. Valletti on a highly successful tenure as Chief Competition Economist of the European Commission’s Directorate General for Competition, starting in 2016 and completed last year. Although Dr. Valletti was in the past listed as a potential expert on our site, we have never had an opportunity to collaborate with Dr. Valletti, and he has never served as an expert on any of our engagements or otherwise been affiliated with OnPoint. We would like to say that we are great admirers of the contribution that he has made to competition enforcement in the EU.

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OnPoint Welcomes New Expert, Professor Mark R. Killingsworth, Ph.D.

OnPoint Analytics is pleased to introduce the latest addition to our team of experts: Professor Mark R. Killingsworth.

Dr. Killingsworth is a Professor in the Department of Economics at Rutgers University where he has served as Director of Graduate Studies and Department Chair. He has many years of consulting experience and has served as an expert in numerous cases involving claims of race, age or gender discrimination. Dr. Killingsworth is intimately familiar with the challenges of proving common impact and a feasible class-wide damage methodology at the certification stage. He has testified before the U.S. Congress on immigration reform and comparable worth, and has been a consultant to U.S. District Court Judge Robert L. Carter, the Canadian Department of Justice, and the U.S. Departments of Justice and Labor. His testimony has been cited by numerous Federal Courts and is especially valued for its clarity and simplicity, as well as its quantitative rigor.

Professor Killingsworth was an undergraduate at the University of Michigan (where he was editor of The Michigan Daily) and received his Ph.D. from the University of Oxford, which he attended as a Rhodes Scholar. His publications include two books – Labor Supply and The Economics of Comparable Worth – and numerous papers in economics journals. Dr. Killingsworth’s research interests include labor supply and pricing, discrimination, human capital, public assistance programs, and fertility. His work in progress includes analyses of the effect of childhood religious education on adult labor-market outcomes, and of the pay of public university presidents. Dr. Killingsworth has served as editor of the prestigious Journal of Economic Literature.

Click here to learn more about Professor Killingsworth.

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OnPoint Expert Assists Class Certification Victory in Restasis Antitrust Litigation

On May 5, 2020, U.S. District Judge Nina Gershon for the Eastern District of New York certified a class of End-Payor Plaintiffs (EPPs) in the antitrust litigation involving the ophthalmic drug Restasis. EPPs allege that Defendant Allergan carried out a multifaceted scheme to keep generic Restasis off the market for years after the patent for branded Restasis had expired.

When certifying the EPPs class, Judge Gershon relied on the testimony of OnPoint expert Laura Craft, who explained prescription fulfilment/payment processes and data systems in the United States. Judge Gershon concluded that the proposed class, which includes consumers, was ascertainable and satisfied all legal requirements. Citing Craft, she concluded that “for every purchase of Restasis, data is available to discern who bought it, who paid for it, and how much every payor paid.” The Court found that “only a de minimis number of plaintiffs were uninjured” and that “a finding of classwide injury-in-fact” could be made.

The decision brings legal precedent into line with current industry realities by rejecting the term “brand-loyalty,” a concept Allergan had used to speculate about whether consumers might have chosen to remain with the brand even in the presence of a generic. Once again citing Craft, Judge Gershon instead adopted the term “brand-retention”, recognizing that “powerful institutional factors, which are unrelated to a consumer’s preference for a particular brand, drive brand retention rates.”

The opinion tackled head on the 1st Circuit’s earlier decision in another pharmaceutical class action: In re Asacol Antitrust Litigation, 907 F.3d 42 (1st Cir. 2018). In Asacol, the Court found that about 10% of consumer class members might have been uninjured and that Defendant had a right to challenge each class member’s statement that he or she would not have been a “brand loyalist.” Based on that ruling, Defendant Allergan claimed in Restasis the right to “individualized inquiries at the liability phase of trial to identify brand retainers in the but-for world and that EPPs’ proposed methodology to exclude them from the class is insufficient.” Rejecting Asacol’s ruling, Judge Gershon noted that “the Second Circuit has accepted the use of representative evidence and statistical observations to prove classwide injury” and she disagreed “with the First Circuit’s conclusion in Asacol that defendant has a constitutional right to remove these [uninjured] individuals at the liability stage of trial.” The Court further concluded that “the data available in the pharmaceutical industry, detailed by Ms. Craft, ensures that only those who actually purchased Restasis will receive damages” and the “data will show exactly how many purchases a consumer made and exactly how much he or she paid for each one.”

The End-Payor Class in Restasis is represented by co-lead counsel Girard Sharp LLP, Lieff Cabraser Heimann & Bernstein LLP and the Joseph Saveri Law Firm, as well as Zwerling Schachter & Zwerling LLP (liaison counsel). All four law firms regularly represent plaintiffs (including Third Party Payors and consumers) in pharmaceutical antitrust litigation.

To learn more about Laura Craft, click here.

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OnPoint Welcomes New Expert, Professor Daniel Hamermesh, Ph.D.

OnPoint Analytics is pleased to introduce the latest addition to our team of experts: Professor Daniel Hamermesh.

Professor Hamermesh is Distinguished Scholar, Barnard College; Sue Killam Professor Emeritus in the Foundation of Economics at the University of Texas at Austin and Professor Emeritus of Economics, Royal Holloway University of London. His fields of specialization are labor and employment, competition in labor markets, wage discrimination and class certification. Professor Hamermesh has provided expert witness testimony in a number of labor and employment matters, involving both class certification and pattern or practice claims. Most recently, he provided expert testimony for plaintiffs in FTC v. Amazon and testified for the plaintiff in Perry et al. v. Schwarzenegger et al., the landmark challenge to California’s Proposition 8. He also provided expert witness testimony on class certification for the defense in a number of nationwide cases that alleged the suppression of wages among registered nurses.

Dr. Hamermesh received his Ph.D. from Yale and his A.B. from the University of Chicago. He has taught at Princeton, at Michigan State and at the University of Texas at Austin and has held visiting professorships at universities in North America, Europe, Australia and Asia. His research, published in over 100 refereed papers in scholarly journals, has concentrated on time use, labor demand, social programs, academic labor markets and unusual applications of labor economics (to beauty, sleep and suicide). Dr. Hamermesh is a Fellow of the Econometric Society and the Society of Labor Economists, a Research Associate of the National Bureau of Economic Research and the Institute for the Study of Labor (IZA), of which he is currently Network Director; and he is Past President of the Society of Labor Economists and of the Midwest Economics Association. His work has been published by Princeton University Press, Oxford University Press and Worth Publishers.

Click here to learn more about Professor Hamermesh.