Three sessions.
One vertical.

Settled: coordinated effects theory is established antitrust doctrine with well-developed evidentiary standards (Merger Guidelines Section 7). Contested: whether the specific market structure in this case — four remaining competitors with asymmetric capacity — satisfies the conditions the literature identifies as conducive to coordination. Unknown: whether market transparency in this sector is sufficient to enable coordination without explicit communication.

Econometric concern: the plaintiff's expert uses a pricing correlation analysis that does not control for common cost shocks. In markets with shared input costs (relevant here: energy), price correlation is expected even absent coordination. This is a standard critique that defence experts routinely make and courts have accepted as sufficient to exclude correlation-based testimony under Daubert.

“The communications record your expert reviewed was produced in the ordinary course. The privilege log indicates withheld communications between the acquiring firm and two competitors in the 90 days pre-announcement. Coordinated effects theory may be less relevant than the question of whether there is direct evidence of communication that was not produced. This changes the litigation theory.”

Confidence: Probable that coordinated effects theory is applicable to the market structure. Contested whether current econometric evidence survives Daubert challenge. Gap on the withheld communications question, which is outside the evidentiary record available for deliberation.

Settled: lost profits damages in software licence cases require proof of causation, reasonable certainty, and foreseeability — standard across circuits. Contested: whether the before-and-after method or yardstick method produces more reliable estimates in SaaS markets with high customer churn — courts have accepted both but with different scrutiny standards. Unknown: whether the damages period should include the tail of revenue loss after contract termination, which varies by jurisdiction.

Vulnerability analysis: the before-and-after method used by current expert requires a clean pre-breach baseline. The defendant will argue the pre-breach period included an anomalous customer acquisition campaign that inflates the baseline. This argument succeeded in 'Oracle v. SAP' and the Ninth Circuit affirmed exclusion of expert testimony that did not address the baseline anomaly.

“The Oracle/SAP comparison is imprecise. That case involved hardware bundling, not pure SaaS. The customer acquisition campaign in our baseline period involved no pricing anomaly — only volume. The defendant's anticipated baseline argument is factually distinguishable. The expert should address the distinction affirmatively rather than waiting for cross.”

Two pre-trial actions: (1) Commission a supplemental expert declaration that explicitly distinguishes the Oracle/SAP baseline problem and explains why the acquisition campaign does not create the same anomaly. (2) Prepare a Daubert opposition brief that front-runs the baseline challenge rather than responding to it.

Settled: the SEC has brought 23 MNPI enforcement actions in the asset management space since 2019, with settlement amounts ranging from $4M to $190M. Contested: whether the “mosaic theory” defence has become less reliable following the 'Raj Rajaratnam' appellate decisions — enforcement staff have signalled a narrower interpretation. Unknown: how the current exam team will weigh the contemporaneous documentation against the trading pattern.

Pattern analysis: in 18 of 23 recent actions, the SEC's primary evidence was trading timing relative to material announcement, not direct evidence of information receipt. The temporal correlation standard has been applied increasingly aggressively since 2022. Your client's trading window falls within the pattern the enforcement staff uses to establish the rebuttable presumption.

“The pattern analysis overstates the risk. Of the 18 timing-based cases, 14 involved documented contact between the trader and a corporate insider. Your client's record shows no direct contact. The mosaic theory defence is weaker than it was, but the baseline for enforcement action in the absence of direct contact evidence is materially lower.”

Confidence: Probable (61%) that the exam results in a Wells Notice if the trading window analysis is the primary evidence. Contested whether it results in a formal enforcement action without documented insider contact. Recommended posture: prepare a Wells submission that leads with the no-contact argument and addresses the timing correlation affirmatively.