All posts in Case Studies & White Papers

The DOJ and FTC; State and Federal Antitrust Laws; and Merger Enforcement in the Energy and Healthcare Sectors

New trends in antitrust law are impacting how agencies view company mergers. Previously, in part one of this video series, antitrust experts discussed how policy changes and technological advancements are impacting antitrust laws.

In part two of our antitrust video series, KrolLDiscovery shares the remaining videos from the 2017 Annual Spring Meeting of the ABA Section on Antitrust Law, made in collaboration with The Capitol Forum. Each video is organized with a short description to make it easier for you to decide which of these compelling videos to view first. Enjoy!

Are the Agencies Taking a More Aggressive Stance?

Watch: Aggressive Trends in Merger Review featuring George Paul, partner at White & Case LLP, as he discusses how this aggressive trend is reliant on several factors, such as structural presumptions and narrow market definitions.

Watch: Aggressive Trends Impact Efficacy of Mergers featuring Ian John, partner at Kirkland & Ellis LLP, as he discusses how this aggressive trend is impacting the timeframe of when transactions become finalized and how this trend will impact merger transactions in the future.

Watch: Unfavorable Antitrust Provisions Lead to More Litigation featuring Cliff Aronson, partner at Skadden Arps Slate Meagher & Flom, as he sees an increasing trend of companies negotiating unfavorable antitrust provisions, requiring them to go the full length of the investigation and possibly into litigation.

Merger Review in the Energy Sector

Watch: Mergers in the Energy Sector featuring Billy Vigdor, partner at Vinson & Elkins LLP, as he explains how market expansion in the energy sector may interplay with merger analysis and control under the Trump administration.

Mergers in the Healthcare Industry

Watch: Antitrust and Healthcare Consolidation featuring Joseph Miller, a partner at Crowell & Moring LLP, as he discusses current cases in the field of healthcare consolidation, the Affordable Care Act’s impact on healthcare consolidation and the future of healthcare consolidation.

Federal and State Engagement in Antitrust Law

Watch: Federal and State Relationships in Antitrust featuring Melissa Maxman, partner at Cohen & Gresser LLP, as she discusses the antitrust exemption in the Shipping Act and relationships between state and federal antitrust laws.

Watch: State Involvement in Antitrust Law featuring Kathleen Foote, senior assistant attorney general at the California Department of Justice, as she explains how states have become more involved in antitrust law and the impact states have on national mergers.

Antitrust Law in the Era of Trump, Brexit and Technological Innovation

Recently, leading practitioners in antitrust law congregated in Washington, DC to discuss various effects the changing world has on antitrust laws and enforcement. At the Annual Spring Meeting of the ABA Section of Antitrust Law, KrolLDiscovery partnered with The Capitol Forum to create a video series of thoughts and insights from nationally-renowned antitrust experts.

Political change and technological advancement throughout the world has transformed policies and institutions enforcing antitrust law. The new administration of President Trump, Brexit, various policy changes and fast-moving technological advancements all create implications in the many fields of antitrust law. Part one of our video series will focus on how these changes are affecting antitrust law and litigation. Each video is organized with a short description to make it easier for you to decide which of these compelling videos to view first. Enjoy!

DOJ and FTC Involvement in Antitrust Law and Mergers

Watch: The Role of the FTC’s General Counsel featuring Bill Blumenthal, partner at Sidney Austin LLP, as he discusses his experience with antitrust law and merger regulations while acting as former General Counsel for the Federal Trade Commission.

Watch: Major Changes to the Antitrust Guidelines for International Enforcement and Cooperation featuring Jeff Jaeckel, co-chair of Morrison & Foerster’s antitrust law practice group, as he discusses the new DOJ and FTC antitrust guidelines on international law released in January 2017.

Watch: Competitive Effects featuring Ken Reinker, a partner at Cleary Gottlieb Steen Hamilton LLP, as he discusses how agencies review and analyze competitive effects and what impact the new administration will have on this analysis.

Technology’s Role in Merger Review and Antitrust Litigation

Watch: Big Data and Antitrust Enforcement featuring Maurice Stucke, of counsel at the Konkurrenz Group and law professor at the University of Tennessee, as he discusses big data’s impact on the traditional areas of antitrust enforcement and the resulting issues for mergers.

Changing Global Policies Impact U.S. Antitrust Laws

Watch: Global Antitrust Approach featuring Nick Gaglio, a partner at Axinn Veltrop & Harkrider LLP, as he discusses the importance of a global antitrust counsel, complexities of dealing with multiple jurisdictions and the effects of the new administration on global antitrust regimes.

Watch: Impacts of a Changing World featuring Jay Modrall, a partner at Norton Rose Fulbright, as he discusses differences in the Commission’s and CMA’s approach to transactions, the present and future impact of Brexit on global antitrust law, and how to mitigate the ensuing negative consequences.

In the next month, watch for part two of The Capitol Forum series, containing additional interviews with leading antitrust experts.

2016: Ediscovery Year in Review

All good things must come to an end; even a great year in ediscovery.

As another year wraps up, we look back at a year that brought great changes to ediscovery. There is no better time than now to remember the highlights of ediscovery case law in 2016. The arrival of the FRCP amendments in December 2015 altered ediscovery practice and set new precedents. The duty to preserve, a new emphasis on proportionality and the intent to deprive dominated ediscovery judicial opinions as courts applied the new FRCP amendments.

Beyond the domination of preservation, proportionality and production, Kroll Ontrack’s analysis of 57 significant state and federal ediscovery opinions led to the classification of 4 major categories that arose most commonly in 2016 ediscovery case law. The most important of these cases are summarized in Kroll Ontrack’s guide, Top Ediscovery Cases of 2016. This guide includes the following topics and cases:

56 percent of opinions dealt with disputes involving production and the methods used, and arguments about proportionality and the scope of discovery.

  • Fulton v. Livingston Fin., 2016 U.S. Dist. LEXIS 96825 (W.D. Wash. July 25, 2016)
  • Carr v. State Farm Mut. Auto. Ins., 312 F.R.D. 459 (N.D. Tex. 2015)
  • Jackson v. E-Z-Go. Div. of Textron, 2016 U.S. Dist. LEXIS 146951 (W.D. Ky. Oct. 24, 2016)
  • Gilead Scis. v. Merck, 2016 U.S. Dist. LEXIS 5616 (N.D. Cal. Jan. 13, 2016)

32 percent of opinions dealt with disputes involving preservation, spoliation and motions for sanctions.

  • Orchestratehr v. Trombetta, 2016 U.S. Dist. LEXIS 51405 (N.D. Tex. Apr. 18, 2016)
  • Living Color Enters. v. New Era Aquaculture, 2016 U.S. Dist. LEXIS 39113 (S.D. Fla. Mar. 22, 2016)
  • Marten Transp. v. Plattform Adver., 2016 U.S. Dist. LEXIS 15098 (D. Kan. Feb. 8, 2016)
  • GN Netcom v. Plantronics, 2016 U.S. Dist. LEXIS 93299 (D. Del. July 12, 2016)
  • Cat3 v. Black Lineage, 2016 U.S. Dist. LEXIS 3618 (S.D.N.Y. Jan. 12, 2016)

4 percent of opinions addressed cost considerations, such as cost shifting and taxation of costs.

  • R. Med. Emergency Grp. v. Iglesia Episcopal Puertorriqueña, 2016 U.S. Dist. LEXIS 99391 (D.P.R. July 26, 2016)
  • Elkharwily v. Franciscan Health Sys. 2016 U.S. Dist. LEXIS 99795 (W.D. Wash. July 29, 2016)

9 percent of opinions discussed procedural issues, such as search and predictive coding protocols.

  • Dynamo Holdings v. Comm’r of Internal Revenue, 2016 WL 4204067 (T.C. July 13, 2016)
  • Hyles v. New York City, 2016 U.S. Dist. LEXIS 100390 (S.D.N.Y. Aug. 1, 2016)
  • Pyle v. Selective Ins. Co. of Am., 2016 U.S. Dist. LEXIS 140789 (W.D. Pa. Sept. 30, 2016)
  • In re Viagra (Sildenafil Citrate) Prods. Liab. Litig., 2016 U.S. Dist. LEXIS 144925 (N.D. Cal. Oct. 14, 2016)

The guide also includes a special section on International Predictive Coding, discussing the major opinions to emerge from overseas.

  • Pyrrho Investments Ltd. v. MWB property Ltd., [2016] EWHC 256 (Ch)

Looking for more? Check out our Top Ediscovery Cases of 2016 guide to review these significant ediscovery cases.

Crossing Borders: Where Discovery and Privacy Collide

international ediscovery

Litigation teams face new challenges when an ediscovery project crosses borders – from multilingual data and unique cultural norms to unfamiliar laws, regulations and data privacy practices. In addition, the international data protection landscape is changing and U.S. businesses with global operations need to be prepared. Companies need to think carefully about the risks of transferring data across borders.

To help practitioners navigate these challenges, Kroll Ontrack synthesized information on more than seventeen countries to create a succinct, new guidebook, A Practical Guide to Cross-Border Ediscovery: Insights for U.S. Lawyers.

This guide includes practical insights into how organizations all over the world are managing a wide range of business challenges using ediscovery technology, including:

  • Case studies on cross-border litigation and FCPA investigations;
  • An “At a Glance” visual map that shows the legal system, applicable rules and ediscovery practices for key countries in the Americas, EMEA and APAC regions;
  • Short summaries from experts on the ediscovery landscape in key countries; and
  • A timeline of EU Data Privacy and Protection milestones.

Litigation, compliance demands and investigations are part of the regular course of business for U.S. lawyers. With global considerations and cross-border implications, law firms and companies now rely on mobile ediscovery technologies, in-country data centers and local expertise to empower the processing and transferring of data in a compliant and cost-effective manner. This guide is just one way that Kroll Ontrack is here to help attorneys and their counsel thrive and adapt in a changing ediscovery world. Read the new cross-border guide today.

Antitrust Video Series: Part 1

Antitrust videos

Navigating the Seas of Global Antitrust and the Expanding Internet Frontier

Every year, the leading practitioners in antitrust law congregate in Washington, DC for more than just the cherry blossoms: they gather for the Annual Spring Meeting of the ABA Section of Antitrust Law. This year, the Spring Meeting focused on global antitrust law, highlighting that now, more than ever before, the legal antitrust professional needs to contend with the global market.

Not everyone is lucky enough to attend the Spring Meeting, so at this year’s meeting Kroll Ontrack was honored to partner with The Capitol Forum to bring you a glimpse of the exciting new topics that were discussed. Nationally renowned experts on antitrust law shared their insights and opinions with us over a dozen short, exclusive antitrust videos, which are available here for you. Part One of our video series focuses on antitrust issues involving either international jurisdictions or Internet companies, with each video each highlighting a unique facet of the current antitrust environment. Each video is organized with a short description to make is easier for you to decide which of these compelling videos to view first.

Internet Markets are Different

Scott Sher

Scott Sher

The unique follower devotion, the speed of buildup and the customer base consisting of both users and advertisers are just a few ways that Internet markets are different and are proving to be a challenge for regulatory schemes both in the United States and abroad.

Watch: Internet Monopolies featuring Scott Sher, a partner at Wilson Sonsini Goodrich & Rosati, as he discusses the unique antitrust issues facing Internet platform monopolies.

 

Diversity in Regulatory Regimes Brings Improvement Along with Headaches

William Kovacic

William Kovacic

The United States is no longer the only major jurisdiction with antitrust filing, and this has resulted in increased time and expense. Is there a unified system of regulatory filings on the horizon, and if so, should there be?

Watch: Global Antitrust Regimes featuring Professor William Kovacic of George Washington University, as he discusses the global establishment of antitrust regimes around the world, the complications and possible solutions to remedy these problems.

 

Antitrust Law Continues to Build on What Came Before

Antitrust videos

Jonathan Kanter

Antitrust law originated to prevent railroad companies from exploiting the market. Today, antitrust law is struggling to grapple with the challenges presented by Internet companies.

Watch: Mechanisms of Antitrust Law featuring Jonathan Kanter, a partner at Cadwalader, Wickersham & Taft, as he discusses the history and mechanisms of antitrust law and its emergence as a public issue.

 

 

Be sure to keep watch for next month’s arrival of Part Two of our video series, which will feature the remaining videos and focus exclusively on antitrust issues currently at play in the United States.

Survey Says… New Trends from Corporate In-house Counsel

corporate In-house counsel

Recently, Kroll and Kroll Ontrack surveyed over 170 corporate in-house counsel to share their perspectives on modern legal challenges facing organizations. We asked about some of the most pressing issues – from big data and compliance to fraud and cyber security – to uncover some striking corporate counsel trends.

These were just some of the questions asked:

  • What are the most pressing legal issues facing your corporation?
  • Does your company have a data breach or incident response plan in place?
  • Does your corporation have an information governance program in place?
  • How frequently do you discuss data security issues with your organization’s head of technology?

The key findings in this 2016 Corporate Risk Survey indicate that organizations are making noteworthy strides as the result of new risks facing the enterprise. Nevertheless, the survey also reveals that organizations have additional room to evolve if they seek to combat these modern risks in an efficient, cost-effective manner. Some of the in-house counsel findings include:

  • Only 41% report that their company’s Incident Response plan is regularly updated and tested.
  • 20% indicate that they never discuss data security issues with their organization’s head of technology.
  • 73% believe that they do not have an effective Information Governance (IG) program in place to deal with skyrocketing data volumes.

Explore the Global Expansion of Ediscovery

Ediscovery is in the midst of global change. Even for countries with legal frameworks that don’t require parties to disclose electronic documents, global ediscovery is emerging as a critical component of business and corporate governance.

Kroll Ontrack experts created a new, interactive map to help you explore global ediscovery insights. Organized by nation and theme, “Ediscovery Goes Global: 2016 Trends” explores the influence of data privacy laws and regulations, cyber security concerns, advancements in computer forensics and the evolution of technology assisted review around the world.

  • Have you ever wondered what the largest emerging market in ediscovery is?
  • How, why and when does ediscovery activity increase in the Netherlands?
  • Where is the use of predictive coding expanding?
  • Ever wondered how China deals with data protection and privacy in ediscovery?
  • Coming out of significant recessions, will Spain & Italy’s use of ediscovery technologies and techniques expand?
  • How do computer forensic tools influence ediscovery in France?
  • Which APAC countries are seeing the most ediscovery growth?

Click here to explore the map and learn more about trends in the hottest emerging ediscovery markets.

Take a “Quick Peek” — 2014 HSR Annual Report

A few weeks ago, the FTC and DOJ released their annual HSR Report. Like any report card, this annual assessment allows us to see the developments of the last year when it comes to premerger notification and merger enforcement.

Mergers are up

  • In 2014, merger filings increased by more than 25% from 2013.
  • 1,663 transactions were reported under the HSR Act in 2014.

Considerable emphasis on consumer market competition

  • Consumer Goods & Services comprised 30.8% of the HSR transactions in 2014, more than any other industry.

Growth in multi-million dollar mergers

  • 4% of reported transactions had a value of over $500 million.

Second Request volumes steady with previous years

  • Second Requests were issued in 51 merger investigations – 30 by the FTC, 21 by the DOJ.
  • The number of Second Requests issued in 2014 increased 8.5% over 2013.
  • Second Requests were issued in 3.2% of total HSR transactions, down from 3.7% in 2013.
  • More than 80% of Second Request investigations occurred in transaction ranges of $300 million or greater.

With ample antitrust and Second Request experience under our belts, Kroll Ontrack is uniquely equipped to help manage your document productions to the FTC, DOJ and other global competition bureaus. To learn more about Kroll Ontrack’s expertise, be sure to check out our Second Request Services.

Excavation, Evolution and EMEA Ediscovery: Spotlight on the U.K. and Germany

What do dinosaurs and data have in common? While it may seem like a strange comparison, excavating a fossilized Tyrannosaurus Rex may not be all that different from finding the most relevant information in terabytes of data. Just as paleontologists have adopted modern technology to locate and date fossils (or create terrifying hybrid dinosaurs such as those in the summer blockbuster Jurassic World), international ediscovery is experiencing its own technology revolution, with firms and companies adopting new techniques and technology to maximize accuracy and efficiency.

Through two recent surveys focusing on EMEA ediscovery, an in-house market study on ediscovery in Germany and a collaborative survey of 101 general counsel and in-house lawyers in the UK with Legal Week Intelligence, Kroll Ontrack unearthed just how firms and companies are handling ediscovery, litigation and regulatory data demands across the pond. Below you will find a summary of these reports, to tide you over until you get time to read both documents in their entirety.

International Ediscovery: Intriguing Themes

  • Regulations, Conflicting Roles, and Costs – UK survey respondents identified an increasingly regulated environment, straddling the need to be legal advisers and commercial advisers and controlling costs as the most pressing challenges facing legal departments today.
  • Internal and Local Tendencies – Two-thirds of the companies surveyed in the UK say they use their own technology and software solutions, although not many have sophisticated ediscovery solutions at their disposal. While companies in Germany generally outsource data processing to external providers, they prefer to use experts with roots in Germany.
  • Differences in Implementation – While nearly 60% of the German companies surveyed recognized the necessary nature of ediscovery, only 20% have response plans for ediscovery projects. In the UK, ediscovery has been around for more than 10 years in litigation and 53% of the surveyed companies are also now embracing sophisticated technology proactively to review their ESI for compliance and potential legal risks, although a third stated that they do not use technology for this process.

Ediscovery in the EU: Dramatic Differences

  • Predictive Coding – While the use of predictive coding has been warmly received in the US for quite some time, EU courts have not had occasion to sanction its usage. However, the Republic of Ireland High Court approved the use of machine learning technology in a case in March – the first time a court in the British Isles has done so. The ruling addresses major concerns regarding predictive coding and seeks to sway the skeptics.
  • No Formal Rules – In contrast to the formal discovery rules in the US and the UK, Germany has no formal legal requirement for ediscovery in civil litigation. That said, ediscovery technologies are nevertheless consistently being used in litigation which indicates just how useful using ediscovery technology can be in case building. With over half of the companies having experienced an ediscovery incident in the past year and a third predicting they will face an ediscovery incident in the next 12 months, being ready for ediscovery is becoming even more important.
  • Differing Demands – Internal investigations, regulatory investigations and litigation arising outside of Germany are the major drivers of ediscovery services in Germany whereas domestic litigation followed by internal investigations and international litigation dominate ediscovery projects in the UK.

What Lies Ahead for EMEA Ediscovery?

  • Specialization – Given the growth of ediscovery practices and professionals in the US, experts expect a similar trend to take hold in the UK, Germany and the rest of EMEA, with ediscovery becoming a legal specialism in its own right.
  • Education –While individuals in Germany are highly aware of the relevance of ediscovery in legal proceedings, there is still a need for greater education regarding the ins and outs of ediscovery. In the UK, there is scope for corporate counsel to learn more about ediscovery, given their dependence on law firms to guide them. The cost benefits of unbundling legal services and relying on experts for ediscovery is becoming very apparent especially in relation to document review.

Before the summer ends, read these two new reports to advance your knowledge of ediscovery practices in Europe.

  • “The State of Ediscovery in Germany”
  • “Responding to Regulatory Scrutiny and Big Data with Innovation” by Legal Week Intelligence in the UK

Information Governance: Points from the Professionals

Information governance (IG) is becoming more and more critical to any organization’s success in controlling the sheer mass of data generated in the ordinary course of business.  However, determining the best ways to get information under control has many organizations at a standstill, with too many organizations only enacting IG practices after disaster strikes.

To highlight the importance of developing effective IG programs, the Information Governance Initiative (IGI) interviewed a number of IG practitioners in differing industries and recently published two reports.  Stories in Information Governance: The IGI 2015 Benchmarking Report and the accompanying document, Information Governance: Tips from the Trenches, compile valuable expert insight and practitioner tips to help any organization evaluate and cultivate an IG program. Across both resources, a couple central themes emerged:

Secure Support for Information Governance

Selling a program meant to protect against a vague, future threat is undoubtedly a challenge, but securing executive support and funding is essential for success. Using mock scenarios to test your program’s strengths and weaknesses, calculating the costs of inaction and consulting an outside expert can help win over a tough crowd and jumpstart an IG program or revive an old one.

Integrate Information Governance into the Entire Organization, not just a Single Department

By coordinating IG throughout the whole organization, end users will learn to think of information as belonging to the organization as whole, not just one department’s problem. For example, creating a senior IG role and developing an IG council of interdepartmental players can optimize the effectiveness of a program.  Further, exploring technology options that can automate as many processes as possible and eliminate end-user variability can make for a streamlined, cost-effective integration of IG policies and procedures into your organization.

Look for Smart Solutions to Challenging Information Governance Problems

Encountering roadblocks while starting and running an IG program is par for the course; don’t shy away from creative solutions. Proactive and creative planning gives you the chance to highlight the value of a strong IG program and garner support from key stakeholders. For example, leveraging versatile technology used to address one problem for other purposes can help stretch a limited budget. Rather than fixating on short-term hang ups, utilizing resources and finding a balance between completing current projects and achieving long-term goals will create a strong IG core at the heart of every project.

 
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