OnPoint expert Dr. Gareth Macartney recently provided deposition testimony in an antitrust lawsuit against a number of big-name electronics companies that specialize in manufacturing, distributing, and selling optical disk drives (In re: Optical Disk Drive Products Antitrust Litigation). Dr. Macartney served as an economic expert on behalf of Direct Purchaser Plaintiffs Acer America Corporation, Gateway, Inc. and Gateway U.S. Retail, Inc. (formerly known as eMachines, Inc.). In February, Dr. Macartney also filed an expert report that analyzed the economic damages allegedly suffered by the plaintiffs as a result of the defendants’ purported anticompetitive behavior.

The ongoing case addresses the plaintiffs’ claim that between approximately January 2004 and January 2010, defendants Philips, Lite-On, Sony/NEC, Toshiba, Samsung, TSST, and Pioneer—along with their co-conspirators—participated in a price-fixing and bid-rigging conspiracy to artificially increase the prices of Optical Disk Drives (“ODDs”) sold in the United States. The plaintiffs claim that the defendants and their co-conspirators successfully coordinated price-setting agreements for the sale of ODDs through alleged anticompetitive acts, including bid-rigging for ODDs in procurement events, allocating customers and markets, and sharing confidential pricing, sales, production, and bidding strategy information. Plaintiffs are seeking damages and injunctive relief in order to rectify injuries to their businesses, as well as the other negative impacts resulting from the billions of dollars of ODD purchases made at artificially inflated prices.

OnPoint expert Christine Davis testified on behalf of claimants in a dispute over an LLC formed by investors to purchase real property and develop a commercial building in Los Altos, California. In the case—filed in Santa Clara County Superior Court and later ordered to arbitration—claimants alleged several causes of action against the respondents who, in addition to being investors, were the promoters, managers and legal counsel for the investment. The allegations included fraud and misrepresentation, breach of contract, false promises, breaches of fiduciary duties, and violations of the Business and Professions Code; as compensation, claimants sought damages, an accounting of the project’s financial transactions, a constructive trust, declaratory relief, and a receivership. In her arbitration testimony, Ms. Davis offered her expert opinions regarding the quality of the accounting for the project, whether management fees were excessive, the various and alternative assumptions incorporated into the projected value of the property, and how certain of those assumptions contributed to the overstating of projected profits as presented in the prospectus. In an interim final award, the Arbitrator concluded that claimants were entitled to “an award vacating each of their investments based upon negligent misrepresentations of the fact upon which they individually relied and which induced their investments in the LLC.”

For the second year in a row, OnPoint Analytics has been named one of the “Best Intellectual Property Litigation Consulting Services” firms by The Recorder in their “Best of 2016” issue. The Recorder’s annual list ranks the top legal services providers based on a survey of over 2,200 legal professionals working throughout California. To learn more about OnPoint’s expertise and experience in intellectual property cases, click here; to learn about OnPoint’s focus on intellectual property in the pharmaceutical industry, click here.

The Recorder is one of the leading providers of breaking legal news and trends, courthouse and statehouse developments, law firm news, and profiles of the people of interest to California legal professionals.

Click here to see The Recorder’s “Best of 2016” issue.

Eastern Pennsylvania District Court Judge Gene Pratter recently denied defendants’ motion for summary judgment in a case alleging that the nation’s major egg producers conspired to artificially increase the price of shell eggs. In her September 28^th memo in In Re: Processed Egg Products Antitrust Litigation, Judge Pratter argued that plaintiffs—a large group of direct and indirect egg purchasers—“have collected sufficient direct or unambiguous circumstantial evidence of an agreement to restrain trade to allow a jury to make those determinations.” OnPoint’s Dr. Gordon Rausser is the economic expert for the direct egg purchasers.

To read the memorandum, click here.

Last week, OnPoint expert Dr. Gordon Rausser testified at a Class Certification hearing in a multibillion-dollar class action lawsuit against some of country’s largest railroad companies (In re: Rail Freight Fuel Surcharge Antitrust Litigation). At the weeklong hearing in D.C. Federal Court, Dr. Rausser testified on behalf of plaintiffs, a proposed class of direct purchasers who claim the four major Class I railroads conspired to artificially increase freight rates through the imposition of fuel surcharges between 2003 and 2008. U.S. District Judge Paul L. Friedman previously certified the class in June 2012, but this decision was later remanded by the U.S. Court of Appeals for the D.C. Circuit following the Supreme Court’s landmark ruling in Comcast Corp. v. Behrend.

OnPoint Analytics is pleased to introduce the latest addition to our staff: Leonore Ralston. Although originally from New York City, she has made the San Francisco Bay Area her home for almost 15 years. Leonore has previously been retained as a consultant and a testifying expert in a wide variety of litigation matters. Her extensive experience performing evaluations of financial evidence includes breach of contract claims, lost profits and lost earnings claims, alleged wage-and-hour violations, fraud investigation and prevention, and securities litigation. Prior to joining OnPoint, she spent nearly a decade cultivating her expertise in the forensic consulting space, serving as Senior Associate at Hemming Morse and Manager at DZH Phillips LLP. She is also a Certified Fraud Examiner, a credential that signifies her proven knowledge in fraud prevention, detection and deterrence, as well as a member of the California Society of Certified Public Accounts (Cal CPA). Given Leonore’s extensive experience and exemplary skill set, OnPoint is excited to add Leonore to our team of professionals.

Christine Davis, CPA, CFF, CVA, CGMA, has joined OnPoint Analytics to head up its growing accounting-based litigation practice. As a seasoned expert witness, we spoke to Chris about her view of the profession and her plans at OnPoint:

As a CPA, what drew you to litigation consulting?
The work is challenging and enriching. I started early in my career as a CPA, and was immediately drawn to the freedom—and necessity—to think through a case carefully and strategize the approach based on the facts and evidence. There were no audit programs that dictated the scope of work—every case was different. I also loved the investigative aspect of it, and it felt natural to apply a combination of analytical, research, and communication skills to make a difference.

What yardstick do you use to judge an expert report?
Respect for the evidence and the data: a good expert provides ample support and works with the facts as they are, rather than as we might wish them to be. Because my reports often involve very technical material, I also place a high priority on communicating simply, using plain language and intuitive graphics.

What are the key elements of successful expert testimony?
There is no substitute for thorough preparation. I enjoy working closely with counsel to make sure we are on the same page and that we understand the case in the same way. There are so many different testifying styles, but I try to exhibit respect, patience, clarity and—of course—the absolute confidence that, having done my homework, my opinions are correct!

Are there particular types of cases that you especially enjoy?
I have been fortunate because my varied background enables me to work on a wide range of cases. I testify on fraud, accounting malpractice, business valuation, financial reconstruction and economic damages. I am especially looking forward to doing more work in the intellectual property space, including on reasonable royalties and lost profits.

Why the move to OnPoint Analytics?
I thoroughly enjoyed my time at DZH Phillips which is a truly exceptional tax and audit firm. They provided a great home for my practice. But at this point in my career, I want to be in a firm that focuses principally on litigation and where I will be surrounded by highly trained economists, statisticians and data technicians. Given the interactions I’ve had with the first-rate professionals at OnPoint Analytics, I could not think of a better match for me.

On May 18th, 2016, OnPoint expert Dr. Stephen Hamilton presented the results of his recent research and answered stakeholder questions as part of a public workshop hosted by the California Air Resources Board (“CARB”) at their headquarters in downtown Sacramento. The workshop marked the initial public release of three studies funded by CARB to investigate potential improvements to the current metrics used for determining the risk of emissions leakage in various industrial sectors. CARB commissioned three studies to inform this sector-by-sector assessment in 2012, and the studies were completed earlier this month.

The first two studies–led by researchers at the University of California, Berkeley, and Resources for the Future–measured international and domestic emissions leakage, respectively, for most industrial sectors that are directly regulated under the Cap-and-Trade program. The third study, led by Dr. Hamilton, measured the potential market transfer and emissions leakage in select food processing industries within the state that would result from the enforcement of proposed greenhouse gas (“GHG”) regulations under California’s Cap-and-Trade Program.

GHG regulations that raise energy input prices at food processing plants in California have the effect of selectively raising the cost of food processing for California plants, creating a cost advantage for unregulated plants in other production regions. The analysis conducted by Dr. Hamilton demonstrates how selective GHG regulation in California’s Cap-and-Trade Program can result in the substantial market transfer of production from California food processing industries to food processors that produce in unregulated regions outside of the state. These market transfer effects hinder well-functioning GHG regulations by reducing regional manufacturing activity in the state, thus decreasing both tax revenue and employment. Additionally, the associated transfer of production from California to other regions causes leakage of GHG emissions across state (and national) lines, dampening the effect of GHG regulations on global climate outcomes.

The results of Dr. Hamilton’s study will help to inform CARB about critically important aspects of the policy that need to be evaluated as the program’s third compliance period comes into effect in 2018. Dr. Hamilton’s work will therefore play a significant role in the formation and implementation of effective policies and regulations that will help ensure California is at the forefront of the battle to combat issues involving global air pollution and emissions leakage–two major factors driving global climate change.

For more information about the CARB Workshop, click here.
To read Dr. Hamilton’s study, click here.

In an Amended Final Judgment issued on April 25, 2016, Judge William H. Orrick upheld the jury’s award of $10,240,000 to the plaintiff in Fujifilm Corp. v. Motorola Mobility Holdings Inc. et al. Following a two-week trial held in the U.S. District Court for the Northern District of California last year—during which OnPoint expert Dr. Gareth Macartney provided both direct and rebuttal testimony as Fujifilm’s damages expert—the seven-person jury awarded Fujifilm $10.2 million in damages after determining that Motorola infringed upon U.S. Patent 6,144,763, a method of converting digital color photos to monochrome. The jury’s verdict on damages aligned with the estimates provided by Dr. Macartney, rather than those provided by Motorola’s damages expert. While the jury found that the three other patents at issue in the case (pertaining to face-detection and wireless data transfer) were invalid, the $10.2 million award for the ‘763 patent alone exceeded the damages estimated by Motorola’s damages expert for all four patents combined. In his latest order, Judge Orrick found that “most if not all” of Motorola’s post-verdict critiques of Dr. Macartney’s damages opinions were merely reiterations of arguments the Court had previously rejected in its ruling to deny Motorola’s motion to exclude Dr. Macartney’s testimony from trial. The Court also awarded Fujifilm pre-judgment interest at the prime rate, compounded quarterly, as calculated by Dr. Macartney.

OnPoint experts Gordon Rausser and Gareth Macartney co-authored an article featured in the Spring 2016 issue of Antitrust Magazine—an issue entirely devoted to class actions on the 50^th anniversary of the 1966 amendments to Rule 23 of the Federal Rules of Civil Procedure, which governs class action cases in federal courts. The article, entitled “Economic Principles for Class Certification Analysis in Antitrust Cases,” explores how certification standards have become increasingly rigorous in class action litigation, particularly with recent landmark rulings in In re Hydrogen Peroxide Antitrust Litigation (2008), Wal-Mart Stores, Inc. v. Dukes (2011), and Comcast Corp. v. Behrend (2013). In the article, Dr. Rausser and Dr. Macartney address the methodological failures that dismantled class certification in these cases, the new certification standards created by each ruling, and economic principles to help distinguish between sound and unsound methodologies going forward.

Antitrust Magazine is the premier magazine devoted exclusively to antitrust and consumer protection law. It has a circulation of about 9,000, including all ABA Antitrust Section members in the United States and abroad, individual subscribers and libraries.

To read the article—and the rest of the Spring 2016 issue of Antitrust Magazine—click here (American Bar Association subscription required).