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Litigation support and expert witness services

Analysys Mason is a global consultancy and research firm specialising in telecoms, media and technology (TMT). Analysys Mason has a long-standing reputation for providing an objective, independent opinion, backed up with quantified evidence, and we have generated an outstanding track record in litigation support and expert witness services.

Our service highlights

We provide litigation support and expert witness services in matters arising from commercial and contractual claims, valuation and damages quantification, competition law cases and regulatory disputes.

Benefits of selecting Analysys Mason include:

  • Leading-edge knowledge and understanding of the sector: Our experts possess world-leading expertise in specific fields of the TMT industry. We carry out over 200 assignments annually for clients across the telecoms industry, including communications and digital service providers, vendors, law firms, financial and strategic investors, governments, regulators, broadcasters, and service and content providers. We also have strong geographical exposure, having worked in more than 110 countries since establishment. Our capabilities are summarised in Figure 1.

Figure 1: Analysys Mason’s capability and experience

Analysys Mason’s capability and experience

  • Broad range of proven methodologies and modelling tools: Our in-depth experience in all areas of TMT consulting has enabled us to develop methodologies and modelling tools that are suitable for litigation and expert witness support. This includes market development scenario modelling, business viability assessment, competition and pricing analysis, benchmarking, technical and operations assessment, structuring and providing evidence for arguments to influence regulators and reviewing regulatory regimes.
  • Robust and independent analysis: We are well known in the regulatory and legal community for providing impartial and independent advice. Our work is analytically robust and has withstood severe external scrutiny in many cases.

Our experience

Over the last 30 years, we have partnered with top law firms, particularly in the UK, USA, France, Spain and Singapore, to deliver more than 60 projects involving litigation support and expert witness services worldwide. Our global experience is shown in Figure 2.

Figure 2: Analysys Mason’s global experience in litigation support and expert witness services

Analysys Mason’s global experience in litigation support and expert witness services

Our focus in litigation support and expert witness services spans the following areas:

  • Commercial and contractual agreement disputes
  • Valuation and damage quantification
  • Disputes on anti-competitive practices 
  • Regulatory disputes.

Commercial and contractual agreement disputes 

Analysys Mason has unrivalled sector experience, having completed over 500 commercial and technical due diligence projects and operations management projects, in the last 5 years. These cover major TMT sectors, including fixed and wireless networks, towers, media, data centre and smart energy sectors. Our depth of experience means that we can offer expert advice from various commercial, operational, strategic and technical perspectives.

We provide expert opinion and expert witness support on legal disputes regarding:

  • economic issues, including wholesale service tariffs, revenue and costs of service provision, global/regional pricing trends and benchmarks, and the expansion and growth prospects of operators; and
  • technical issues, including quantification of telecoms assets, assessment of quality-of-service compliance, technical fault analysis

Valuation and damage quantification

We have developed a range of valuation and economic cost models in the context of commercial due diligence and regulatory pricing projects. These models can be used to provide robust valuation and damage quantification in potential areas of dispute.

Our extensive experience in the use of different valuation and cost standards, and our proven processes for developing these models, ensure that the appropriate methodological decisions are made throughout the modelling process to maximise accuracy and timely delivery.

We assist in legal disputes by:

  • conducting valuation of an entire business, a business unit, individual assets (e.g. media rights), or a particular transaction;
  • providing revenue and cost estimates and damage calculations by establishing a relevant counterfactual scenario; and
  • examining third-party valuation reports and providing alternatives/corrections in areas of disagreement.

Disputes on anti-competitive practices

Analysys Mason has worked with operators and regulators around the world to navigate the changing competition regulation landscape, offering our expert opinion on margin squeeze allegations, predatory pricing, and exclusive agreements that may be deemed to be anti-competitive. We have supported claimants in analysing the economic damages and associated prejudice related to a company’s anti-competitive behaviour and have also assisted parties responding to such allegations.

We support our clients by:

  • conducting margin squeeze tests to review the findings of abuse and damages and provide corrections and alternatives in cases where we find such allegations to be unfounded;
  • developing replicability analysis models to demonstrate the feasibility or infeasibility of replicating retail offers available in the market, based on the alleged anti-competitive wholesale prices;
  • evaluating predatory pricing allegations by analysing historical, current client and competitor pricing; and
  • advising on exclusive agreements between operators, and the extent to which these agreements have contributed to higher downstream prices.

Regulatory disputes

We carry out over 100 regulatory projects a year, and have an in-depth understanding of telecoms policy and regulatory environments. Our depth of experience comes from our long involvement in telecoms regulation, from our early work with the European Union in 1985 on the liberalisation of the telecoms sector, and including our instrumental input to the shaping of new regulatory frameworks in the mid-1990s, specifically in terms of universal service obligation (USO) and competitive licensing. Since this time, we have been closely involved in working on the full range of regulatory issues, and have often been at the cutting edge of innovative regulation.

Our unparalleled policy and regulatory expertise allows us to provide an independent review of the approach taken by the regulator, based on our experience in other similar jurisdictions. We assist:

  • regulators and their legal teams to engage telecoms operators during regulation preparation and manage appeals and claims from operators regarding new/modified regulatory processes; and
  • operators seeking to appeal against new/modified telecoms regulation through assisting with internal preparation, interactions with regulators and ongoing litigation support. Our work includes challenging procedures and principles used in the revision of TMT-related regulations, e.g. the setting of interconnection rates (including mobile and wholesale termination rates) and handset subsidies.

Our project experience

Our partners have accumulated a wealth of experience from advising top law firms on various topics in the TMT sector. These projects have also involved understanding the unique characteristics of each region in which we work, so that we can bring relevant geographical and socio-economics insights to the matter of dispute.

Examples of our work in litigation support include:

Support to mobile operator in re-negotiation of its national roaming agreement charges We supported a new-entrant mobile operator in the renegotiation of its national roaming charges with its host operator. We reviewed the relevant economic arguments underpinning the national roaming charges agreement, and considered the likely approach of the regulator in resolving a dispute (if one were to be raised). We calculated retail-minus and cost-plus-based charges for national roaming services which should be acceptable to the host network and regulator, and assisted with the mobile operator’s dispute preparations and subsequent negotiations.
Technical support for a major satellite provider We were technical experts for a major satellite provider in a legal case involving one of its customers. We assessed whether the satellite service provided to the customer complied with the technical requirements set out in the contract, based on documentary evidence. We performed technical tests and established that the satellite link was in good condition and fulfilled the terms of reference of the contract.
Assistance to an operator with its claim for compensation from the government We supported an operator with its claim for compensation from the government following a decision to bring forward full liberalisation of the market. We undertook a detailed assessment of the loss faced by the operator as a consequence of liberalising the market earlier than had been agreed under the operator’s licence conditions. We benchmarked this situation against other precedents, resulting in a settlement in the region of USD500 million for our client.
Allegation of anti-competitive wholesale broadband service offering We supported an incumbent operator in a legal case regarding its alleged anti-competitive wholesale broadband service offering. We carried out a margin squeeze test and an international benchmarking exercise to examine the wholesale broadband situation in other similar jurisdictions to demonstrate the appropriateness of the wholesale inputs available to competitors.
Appeal against telecoms regulator on legality of handset subsidies Analysys Mason was appointed to prepare an expert report related to handset subsidies for use in litigation with a regulator. We provided an opinion on the objectives of handset subsidies and on the handset subsidies that had been implemented internationally. We reviewed the methodology our client used to implement handset subsidies in its market and assessed the impact of handset subsidies in reducing the risk of operators’ marketing strategies.
Legal challenge of regulatory changes to wholesale termination  We undertook an expert advice project to develop supporting arguments, submission papers and court affidavits for a mobile operator making a legal challenge of the regulator’s wholesale termination proposals.
Duct access pricing dispute  Analysys Mason was engaged by a cable TV operator to provide expert witness support in a legal dispute with the incumbent operator. The dispute was related to the price the cable TV operator was paying the incumbent operator for duct access. We produced an estimate of the number of ducts rented from the incumbent operator, based on detailed geographical modelling. We also provided our opinion on certain economic and technical issues relating to the claim. Our report was submitted to the court as an expert opinion and informed our client’s legal strategy.
Dispute with landowner on expansion of facilities We supported a leading teleport operator regarding a legal dispute involving the owner of the land on which the teleport was built. The report traced the growth of the teleport operator’s business and examined its future expansion prospects, arguing that the teleport’s potential could only be fully realised if it were permitted to expand its facilities at its present location, or relocate to a new site.
Revenue and cost associated with provision of end-to-end directory enquiry service For a directory enquiry service provider, we prepared an expert witness report which compared the revenue and costs associated with the various elements of an end-to-end directory enquiry service: call origination, billing and cash collection, and other aspects of the service. The client used our report as part of a dispute with an operator about the retention rate applied for billing and cash collection services.
Estimation of media rights cost We produced an expert witness report and economic model estimating the costs of pay-per-view football rights, relative to other rights ‘windows’ (free-to-air and pay TV). This was based on a detailed review of the rights contracts with football clubs, as well as other contracts and related documentation on the subsequent downstream stages in the value chain, on a per-region basis. We also testified in court as expert witnesses.
Expert witness report with damage valuation on international traffic carriage We provided technical and economic insight with regard to international traffic carriage, and reviewed the commercial contract between a telecoms operator and one of its wholesale clients. We analysed and commented on a damage valuation report produced by the other party and provided a revised valuation.
Allegation of anti-competitive wholesale tariffs Analysys Mason produced an expert witness project for a mobile virtual network operator (MVNO). We testified that the current level of wholesale tariffs imposed by its host mobile network operator did not allow the MVNO to replicate the retail offers currently available in the market, or to sustain a sufficient level of return on investment.
Dispute regarding discriminatory treatment by the government Analysys Mason provided litigation support to a mobile operator in an arbitration proceeding against the government, with an international law firm. We supported the operator with its claim against discriminatory treatment by the government, by carrying out technical investigations, calculations, modelling and valuations, and prepared an expert witness report for the arbitration tribunal.
Dispute on setting of mobile termination rates We provided expert witness support to a regulator in a dispute with a mobile operator on the setting of mobile termination rates. Our testimony involved a wide range of mobile costing and pricing issues, including: long-run vs short-run costs; site and backhaul requirements for a mobile network; mobile network system capacity; and the costs of smaller entrants. The ruling in court eventually favoured the regulator.