Category Archives: Products & Services

Does WEXIS use legal search user data in their surveillance search platforms?

Following up on this LLB post that asks “Does WEXIS use legal search user data in their surveillance search platforms?,” Sarah Lamdan reports via email about what transpired at CRIV’s Vendor Roundtable on Sunday. Sarah reports that LexisNexis denied using legal search user data in their surveillance search platform and Bloomberg Law stated it doesn’t save user data. “Thomson Reuters/Westlaw was notably silent,” Sarah observed.

Not discussed at CRIV’s vendor roundtable Sunday was the thornier issue for librarian professional ethics, namely that these companies are bidding on and contracting with ICE for surveillance purposes. See Sarah’s Surveillance and Legal Research Providers: What You Need to Know. — Joe

LexisNexis launches Lexis Analytics

Yesterday, LexisNexis launched Lexis Analytics. From the press release:

The suite consists of new and enhanced products fueled by smart content from Lexis Advance and the strategic acquisitions of Lex Machina, Intelligize and Ravel Law, and integrates the most powerful technologies in the legal space, including machine learning, artificial intelligence (A.I.) and visualization tools.

Most powerful? Thomson Reuters’ Westlaw Edge is offering stiff competition for analytics. For a review of the launch, see the following stories:

LexisNexis Launches Lexis Analytics, Putting A ‘Stake in the Ground’ to Claim the Legal Analytics Space, Bob Ambrogi, LawSites, uly 13, 2018

LexisNexis Launches Lexis Analytics, Leveraging Collective Power of Recent Acquisitions, LegaltechNews, July 12, 2018

— Joe

 

Westlaw Edge overview videos

Hap tip to Scott Frey for locating introductory videos of Westlaw Edge features. The videos cover litigation analytics, WestSearch Plus, KeyCite overruling risk, and statutes compare. Recommended. — Joe

Thomson Reuters launches Westlaw Edge

Calling Westlaw Edge the most significant release since WestlawNext in 2010, Thomson Reuters announced the launch of Westlaw Edge just in time to create a lot of buzz at AALL’s annual meeting. Is it buzz worthy? Well, I haven’t seen it but initial reports indicate that the AI-enhanced Westlaw Edge is more that just an incremental upgrade.

To dive into this new development ahead of AALL 2018, check out the below articles:

Move Over Westlaw – Meet the Next-Generation Westlaw Edge, With Advanced AI and Analytics, Bob Ambrogi, LawSites, July 12, 2018

Thomson Reuters Launches Westlaw Edge, West Search Plus, Analytics, Enhanced Citator and More, Jean O’Grady, Dewey B Strategic, July 12, 2018

A Deep Dive Into the Tech Upgrades in Thomson Reuters’ Westlaw Edge, Legaltech News, July 12, 2018

Westlaw Edge will be offered as an upgrade from Westlaw for current Westlaw subscribers. Westlaw will be phased out in 2024. I wonder if Thomson Reuters is going to repeat the pricing mistake the company made at the launch of WestlawNext by trying to charge a 10% premium for Westlaw Edge? It didn’t work for WestlawNext. I doubt it will work with Westlaw Edge. — Joe

Questioning WEXIS as big data surveillance vendors by AALL member legal search users

As Sarah Lamdan has documented both Thomson Reuters and RELX are supplying search solutions for their compiled surveillance data to law enforcement agencies, including ICE. She has also called attention to the ethical issues information professionals face in light of this development.

One issue that affects law librarians who use WEXIS legal search services is the extent to which, if any, there is cross-pollination of usage data from WEXIS legal search platforms to their surveillance search platforms. One would think our WEXIS representatives would be able to answer one simple yes/no question — Does WEXIS use legal search user data in their surveillance search platforms?

Hopefully this question will be asked and answered straightforwardly at CRIV’s Vendor Roundtable Sunday. That assumes WEXIS will send company representatives to the roundtable to serve as participants, not just observers, and further assumes that WEXIS responses will not hide behind a “proprietary information” response.

This matter may lead to further investigations by CRIV and, perhaps may require AALL Executive Board involvement. This Sunday’s vendor roundtable may be one of the most interesting roundtables in recent memory.

CRIV Vendor Roundtable
Sunday, July 15
1:00 p.m.-2:00 p.m.
Hilton Key Ballroom 9

— Joe

Surveillance and Legal Research Providers: What You Need to Know

By Sarah Lamdan

Legal research companies are selling surveillance data and services to law enforcement agencies including ICE. Their participation in government surveillance raises ethical questions about privacy, confidentiality and financial support: How private is your search history when your legal research vendors also sell surveillance data? Are you funding products that sell your patrons’ and clients’ data to ICE and other law enforcement agencies?

Historically, librarians have protected people from unwanted surveillance and safeguarded intellectual freedom. How do librarians uphold their privacy and intellectual freedom standards when they rely on surveillance companies for their research resources?

Thomson Reuters, RELX, and ICE Surveillance

Since September 11, 2001, permissive surveillance laws and improving data technology have created a huge market for big data policing products. Thomson Reuters and Reed Elsevier (now branded as RELX), the companies that own Westlaw and Lexis, are competing for contracts to supply troves of personal data and search technology to the government. Both companies have expanded their product lines to take advantage of lucrative surveillance opportunities. Since 2017, Thomson Reuters and RELX have bid on contracts to help ICE track hundreds of thousands of immigrants and target them for arrest.

Thomson Reuters and RELX have quietly been developing surveillance tools for years. In 2004, Reed Elsevier purchased Accurint, a huge personal information data system. By 2006, Lexis had the world’s largest electronic legal, news, and public records collection. In 2015, Reed Elsevier rebranded itself as RELX and moved further away from traditional academic and professional publishing. This year, the company purchased ThreatMetrix, a cybersecurity company that specializes in tracking and authenticating people’s online activities, which even tech reporters saw as a notable departure from the company’s prior academic publishing role.

Thomson Reuters, Westlaw’s company, has also changed its business to compete in the surveillance data and technology market. Thomson Reuters Special Services (TRSS) was developed to sell surveillance products, and TRSS CEO Stephen Rubley joined the board of the ICE Foundation. Thomson Reuters has signed three contracts to provide ICE with surveillance services totaling over $26 million. The contracts include:

  1. A contract to provide ICE access to Thomson Reuters’ Consolidated Lead Evaluation and Reporting (CLEAR) system, which contains information that ICE uses to identify and target suspects, businesses and assets for arrest, seizure, and forfeiture.  CLEAR provides access to billions of records, sourced from both government agencies and private suppliers. RELX’s Accurint is CLEAR’s main competitor. The product interfaces with law enforcement agency databases in real-time, feeding data through Palantir’s FALCON analysis system, Peter Thiel’s “automated policing” technology that decides whether people should be targeted for investigation.
  2. A contract to integrate license plate recognition (LPR) data into the CLEAR system. LPRs are roadside cameras that automatically photograph passing license plates and convert the images into a computer-readable format, creating a “read” that contains license plate numbers and registration data, vehicles’ makes and models, camera IDs that include passenger IDs in some cases, GPS coordinates, and the time and date each photograph was taken to pinpoint peoples’ locations. The International Association of Chiefs of Police has warned that using LPRs could violate the First Amendment, and in 2015, the DHS cancelled its bid for LPR services after a privacy impact assessment raised red flags. However, in 2017, the agency went ahead and purchased LPR services from Thomson Reuters and a company called Vigilant Solutions.
  3. A contract to give ICE “subscription data services” that continuously monitor and alert ICE about changes to immigrant’s FBI numbers; State Identification Numbers; jail booking data; credit history; insurance claims; phone number account information; wireless phone accounts; wire transfer data; driver’s license information; vehicle registration information; property information; payday loan information; public court records; incarceration data; employment address data; Individual Taxpayer Identification Number (ITIN) data; and employer records. (RELX also expressed interest in this contract, but lost out to Thomson Reuters, according to the Sole Source Justification records.)

More surveillance contracts are likely on the way to help ICE reach its goal of generating at least 10,000 leads per year for deportation and visa denial. Thomson Reuters and RELX will likely bid on those contracts, too. Representatives from both companies attended ICE’s investor day event for its controversial Visa Lifecycle Vetting Initiative (VLVI), or Extreme Vetting program. ICE wanted to hire a data company to surveill social media profiles and predict who should be allowed in the U.S., but ICE shelved the program because the companies had not yet developed the technology the agency wanted. Once the companies make the right surveillance tools, ICE will probably want to pay for them.

Why does this matter to law librarians?

Thomson Reuters’ and RELX’s expansion into big data surveillance products has changed their relationships with law librarians. The new business models mean that law product purchasers are no longer the companies’ top priority customers. As Thomson Reuters and RELX work to entice law enforcement customers, law librarians have been moved down the queue. Westlaw and Lexis have become less flexible and forthcoming about contracts while providing less customer service.

Even as customer relations decline, AALL treats the companies like colleagues rather than service providers and censors librarians’ conversations about their surveillance contracts.  But not talking about these issues does not change the fact that Lexis and Westlaw are no longer mom n’ pop law companies. Like other companies, they operate less like publishers and more like data supercenters. Westlaw and Lexis legal product packages now sit on virtual megastore shelves next to the law-adjacent “risk solution” law enforcement surveillance products, and the legal products help the companies leverage surveillance product sales to law enforcement agencies. Law librarians no longer have a clear understanding of their vendors’ practices as law libraries are one of many profit sources for corporations that also sell data to entities whose ethical practices might violate librarians’ professional codes.

Librarians protect their patrons’ privacy. The American Library Association’s Code of Ethics requires that librarians safeguard people’s personal information and ensure that people seeking information do not become surveillance targets. Moreover, the Code says that librarians must not advance private interests, including those of vendors, at the expense of library users. Librarians are responsible for protecting intellectual freedom against surveillance efforts.

Librarians also support the ethical use of information. The ACRL Framework for Information Literacy emphasizes the ethical use of information, data, and scholarship. The AALL Legal Research Competencies and Standards state that a successful legal researcher “distinguishes between ethical and unethical uses of information” and the Boulder Statement on Legal Research Education specifies that legal research instruction should include “an ongoing examination of professional standards, including the identification of ethical responsibilities.”

Lexis and Westlaw’s companies’ expansion into surveillance products implicates librarians’ ethical obligations in several ways:

  1. Confidentiality and Privacy: When legal research vendors sell surveillance data to enforcement agencies, they risk the confidentiality of the data collected by their legal research product. If surveillance is their market, what happens to data tracking Westlaw and Lexis log-ins, search histories, and document views? Client confidentiality is a cornerstone of the legal profession. With few exceptions, lawyers are obligated to keep client information from enforcement agencies’ reach. While product reps may say that searches on their law products are private, neither company has issued any official assurances that they would not funnel lawyers’ search histories into their other products. Thomson Reuters’ privacy statement says that the company can use subscribers’ information (which includes browsing history and search terms) “for the prevention, detection or investigation of a crime or other breach of law or requirement, loss prevention or fraud” or “to comply with requests from courts, law enforcement agencies, regulatory agencies, and other public and government authorities.” Without affirming a commitment to search confidentiality, Westlaw and Lexis users cannot be sure that either product would defy their government clients’ requests for legal research data.
  2. The Ethical Use of  Information: When law librarians and legal professionals buy legal research services from vendors that are developing surveillance products for ICE and other enforcement entities, chances are high that the money funds surveillance research and development. Buying Westlaw’s legal products gives Thomson Reuters ample overhead to build a “digital deportation machine” for ICE. Contracting with research vendors that fuel government surveillance and help ICE carry out ethically fraught programs raises critical information literacy issues ripe for discussion by law library professionals.

ICE surveillance data may be used to target noncriminal residents for denaturalization and to locate and arrest people at schools, at courthouses, in hospitals, at work, and at their homes. Some companies are refusing to use and work with companies that build ICE surveillance systems as ICE’s surveillance and enforcement practices raise numerous ethical and legal concerns. Lawyers, including the ABA, have called ICE’s practices unconstitutional and unethical.

Editor’s Note: I want to thank Sarah for calling her article to my attention and allowing me to republish it on LLB. The article was originally published on Medium on July 6th. See also Sarah’s earlier LLB post on this subject here. — Joe

Tying controversy: AALL statement on July 2 meeting with Lexis representatives

Here’s the text of the eBriefing emailed to AALL members today:

In response to the June 7 letter sent by AALL’s attorney to LexisNexis, AALL and Lexis leadership met in Chicago on July 2. Those in attendance were Greg Lambert, AALL president, Kate Hagan, AALL executive director, James P. Fieweger, AALL counsel, and Lexis representatives Sean Fitzpatrick, managing director of North American research solutions, Paul Speca, vice president, large law & law school markets, Jeffrey Pfeifer, vice president, product management, and Logan Breed, counsel.

The purpose of the meeting was to discuss member concerns regarding a recent LexisNexis sales practice that ties access to its electronic and print publication products to the purchase of a license to Lexis Advance.

AALL had a series of questions it wanted addressed regarding the new policy. Specific questions included the terms of the policy, why the policy was put in place at this time, and why members who were able to purchase stand-alone Lexis print and electronic products in the past are now required to purchase Lexis Advance for access to those products.

Lexis advised AALL it is unable to discuss any product packaging or pricing matters, except with their customers, since each relationship is customized to meet the firm’s needs, and because Lexis has negotiated NDAs with all of its customers.

They also reiterated their earlier statement: “As we retire Lexis.com this year and upgrade users to Lexis Advance, we will more fully leverage our platform that consolidates all content and tools to one ecosystem.”

AALL also could not confirm what markets the new sales policy affects, but to date, we have only heard from law firm members regarding this change.

AALL President Greg Lambert strongly urged Lexis leadership to reconsider the new practice. While we do not anticipate that will occur, he further urged that they communicate fully to the membership and to their individual customers at the local level the specifics of this new sales practice and how it will affect them when renewing their Lexis contracts.

AALL will continue to pursue any rights we might have in addressing these product-tying policies. In the meantime, it is important members are aware that the Lexis strategy of tying its print and electronic products to the purchase of Lexis Advance is an issue affecting the legal information marketplace. Members, especially those working in law firms, should work with firm leadership to inform them of these changes and the implications for the firm’s legal information and research needs. Members should also communicate directly with their assigned Lexis representatives to discuss what terms and conditions may or may not be available to them as customers of Lexis.

— Joe

 

What-if: Taking “legal or commercial action” against LexisNexis for its anticompetitive tying sales strategy

On July 2nd, AALL representatives met with LexisNexis representatives to discuss the company’s anticompetitive tying sales strategy. No official word on the outcome. (Not sure one should even expect an outcome after only one meeting. ) Until members hear something, this matter can be viewed as a work-in-progress. However, what if it wasn’t?

In its letter to LexisNexis CEO Mike Walsh, AALL called for an open dialog over the company’s anticompetitive tying sales strategy. If that failed, our association warned of taking “legal or commercial action” against the company. Assuming for this post that dialog does not produce our association’s desired outcome, the cessation of tying print and ancillary products to a Lexis Advance license, then taking legal or commercial action would be costly to AALL’s treasury.

It goes without saying that legal action would be very expensive (unless an AALL-member law firm would take the matter pro bono). The outcome would be unpredictable.  But this option is more likely in getting Lexis to change its sales policy.  Only someone with expertise in antitrust law (meaning not me) can evaluate this option.

Less unpredictable but also less likely to be as effective as legal action is taking “commercial action.” Commercial action could range from no longer accepting Lexis advertising revenue in AALL publications like LLJ and Spectrum, to a ban from AALL’s annual meeting and its exhibit hall, to a complete ban from all sanctioned activities of AALL and its chapters. Commercial action could be fairly expensive for our association too in some instances.

Using FY2018 budget data as a basis for illustrating future consequences, estimated total advertising revenue from Spectrum is $60,000 and from LLJ is $3,800.  That’s hardly a large amount. Spectrum and LLJ are already costing AALL more than the total revenue generated with an estimated annual net deficit of $114,928 for both. Not knowing what portion of Spectrum-LLJ ad revenue comes from Lexis, let’s just assume that the company pays AALL about $30,000. If so, simply banning Lexis from advertising would not hurt AALL’s bottom line that much. AALL would still end up with an estimated adjusted total budget surplus of $50,000 because AALL’s estimated total annual surplus for FY2018 is only $82,260. For such an egregious violation of fair business practices and possible antitrust violations simply banning LN from advertising just does not seem a proportional response. More is needed.

What’s needed in this what-if scenario is denying LN participation in our annual meeting and its exhibit hall until LN changes its sales policy. Not allowing LN a presence at our 2019 annual meeting (and later annual meetings as well) is justified. The company’s tying ultimatum deserve a similar take it or leave it action from AALL.

I cannot estimate what this annual meeting ban would cost AALL (but AALL administrators could). However I believe the ban would negatively impact our association’s annual budget surplus, turning a surplus of $82,260 into an annual net budget deficit amounting to low six figures. And if AALL decided to ban the company from our annual meeting, AALL would have to raise income some way, most likely in ways that directly affect rank-and-file law librarians.

So… is it still worth it? Yes. — Joe

AALL to meet with LexisNexis over tying controversy today

Yes, AALL and LN will meet today in Chicago to try to resolve the on-going tying controversy. Representing our association will be AALL President Greg Lambert. No word on who will be representing LexisNexis. — Joe

LexisNexis tying, a matter of attempting to preserve the company’s revenue stream in a saturated market

Michael Feit looks at the AALL-LexisNexis controversy about the company’s strategy of tying print and ancillary products to a Lexis Advance license, noting that Lexis Advance is a mature product at a competitive disadvantage with Westlaw in a saturated market. From this vantage point Feit calls the company’s tying sales strategy an attempt to preserve a revenue stream that may decline in the coming years. — Joe

Using the Metrics Toolkit for demonstrating and evaluating claims of research impact

From the about page for Metrics Toolkit:

The Metrics Toolkit provides evidence-based information about research metrics across disciplines, including how each metric is calculated, where you can find it, and how each should (and should not) be applied. You’ll also find examples of how to use metrics in grant applications, CVs, and promotion dossiers.

There are two ways to use the Toolkit. Explore metrics to browse the metrics you want to learn more about. Or, you can choose metrics that will be best for your use case by filtering via our broad discipline, research output, and impact type categories.

Interesting. — Joe

A review of 35 current applications in artificial intelligence in law and legal practice

AI in Law and Legal Practice – A Comprehensive View of 35 Current Applications explores the major areas of current AI applications in law, individually and in depth. Current AI applications fall in six major categories:

  • Due diligence – Litigators perform due diligence with the help of AI tools to uncover background information. We’ve decided to include contract review, legal research and electronic discovery in this section.
  • Prediction technology – An AI software generates results that forecast litigation outcome.
  • Legal analytics – Lawyers can use data points from past case law, win/loss rates and a judge’s history to be used for trends and patterns.
  • Document automation – Law firms use software templates to create filled out documents based on data input.
    Intellectual property – AI tools guide lawyers in analyzing large IP portfolios and drawing insights from the content.
  • Electronic billing – Lawyers’ billable hours are computed automatically.

— Joe

Swedish research libraries cancel journal contract with Elsevier

More bad news for RELX. Swedish research libraries are cancelling their journal contract through Bibsam Consortium with the academic publisher Elsevier. The contract will terminate as of June 30, 2018. Researchers from the participating organisations will continue to have access to articles published between January 1995 and June 2018 under the terms of the current contract, but Elsevier will not provide access to subscription content published after 30 June 2018. — Joe

Early coverage of AALL-LexisNexis anticompetitive tying controversy — updated (again)

On June 7th, AALL sent Mike Walsh, CEO of LexisNexis Legal, a letter calling for the company to cease tying the acquisition of its other print and digital products to licensing Legal Advance. [Text of letter here ; text of press release]. Early coverage of this development include Jean O’Grady’s The Law Librarians Revolt: AALL Accuses LexisNexis of Engaging in Unfair Business Practices – Possible Antitrust Violations, Dewey b strategic, June 7, 2018 and Dan Packet’s Law Librarians Accuse Lexis of Anti-Competitive Bundling, American Lawyer, June 7, 2018 (behind paywall).

More… .

That AALL Letter Addressed To Mike Walsh CEO Lexis Nexis, House of Butter, n.d.

AALL Accuses LexisNexis of Possible Antitrust Violations, Legal Skills Prof Blog, June 8, 2018

Why Lexis’ Sales Approach Should Concern Law Firm Management and Leadership, Greg Lambert, 3 Geeks and a Law Blog, June 11, 2018

Answering the call for AALL consumer advocacy: 10 years after the Great Recession AALL is living up to its potential — what’s next?, LLB, June 13, 2018

Law Librarians Accuse LexisNexis of Anticompetitive Sales Practices, Bob Ambrogi, LawSites, June 14, 2018

LexisNexis must talk with customers to show it cares, Kevin O’Keefe, Real Lawyers, June 14, 2018

AALL Quarrels With LexisNexis, Information Today NewsBreaks, June 19, 2018

Lexis’s Legal Pricing Strategy Has Haters, But Might Be a Risk Worth Taking, Michael Feit, Legaltech News, June 25, 2018

 

Related background coverage prior to letter’s issuance… .

LexisNexis/AALL CRIV Conference Call November 28, 2017, 4:00 p.m., CRIV Blog, Dec. 20, 2017

What! Is LexisNexis discriminating against law libraries that cancel Lexis Advance? Law Librarian Blog, April 3, 2018

At 1:00 PM CDT Friday, AALL may decide to issue a “statement of disapproval” over one very expensive legal information provider’s tie-in negotiating tactics, LLB, April 4, 2018

“The Board will be gathering more facts in order to determine how to effectively respond” to LexisNexis’ tying ultimatum, LLB, April 10, 2018

Acquiring only what we need and can afford: Getting to “yes” with a vendor behaving like LexisNexis requires one shared imperative that is missing right now, LLB, June 1, 2018

Read more about it. — Joe

Answering the call for AALL consumer advocacy: 10 years after the Great Recession AALL is living up to its potential — what’s next?

The Great Recession sent AALL into a tailspin with members over consumer advocacy. Rank-and-file members’ calls for AALL to commit to consumer advocacy due to numerous complaints about price inflation and unscrupulous vendor business practices were pushed back by successive AALL executive boards during the Great Recession and its library-related aftermath, the “Shed West” (print) era, 2008-2013. Push backs? Sure, (1) the vendor liaison fiasco usurped CRIV’s traditional jurisdiction and authority; (2) the Vendor Colloquium and its (in)action plan left consumer advocacy almost entirely unaddressed and (3) the issuance of AALL’s Antitrust FAQ, our association’s stringent interpretation of antitrust rules, heavy-handedly reminded AALL members that “AALL cannot be used by any of its members as a vehicle for engaging in collective action that would be anticompetitive.” There was also the short-lived Consumer Advocacy Caucus which died on the vine due in part to the animus certain AALL executive board members had toward the group (and due to leadership changes within the caucus).

But that is in the past. Now AALL is living up to its potential in consumer advocacy. “Law librarians revolt,” said executive board member Jean O’Grady in her Dewey B Strategic post. The anticompetitive tying controversy with LexisNexis also demonstrates that our association can commit to consumer advocacy for AALL’s institutional members, the employers of firm, government and academic law librarians. AALL president Greg Lambert reminds readers that this controversy is not just about law librarians at Why Lexis’ Sales Approach Should Concern Law Firm Management and Leadership, 3 Geeks and a Law Blog, June 11, 2018 (“It is definitely an issue which those outside the law firm libraries should take notice, and be very concerned. This is something that affects the entire law firm, not just the law librarians.”)

What’s next? “[AALL legal counsel] ask[s] on behalf of AALL that representatives of LexisNexis commit to a meeting with AALL leadership, which prefers and encourages open dialogue on this issue, as opposed to legal or commercial action,” is how AALL closed its letter to LexisNexis’ CEO Mike Walsh. While AALL did not stipulate a drop-dead deadline for discussions before taking legal or commercial action, it would be wise for LN C-suite occupants to meet with the executive board members and CRIV representatives before or at AALL 2018 in Baltimore next month. It most certainly would be a good idea to conduct this meeting (and hopefully resolve the controversy) before CRIV’s annual vendor roundtable which is scheduled for July 15, 2018. Remember, all members (and vendors) are invited to attend and participate in the roundtable discussion. I bet anticompetitive tying demands by Lexis will be a hot topic at the meeting. The roundtable may also learn of questionable tying practices by other very expensive legal information vendors. As CRIV explains “This roundtable discussion can often inform CRIV’s activities for the upcoming year.” So what’s next in my opinion is that all interested AALL members attend CRIV’s vendor roundtable.  — Joe

CRIV Vendor Roundtable

Sunday, July 15

1:00 p.m.-2:00 p.m.

Hilton Key Ballroom 9

Sagi’s A Comprehensive Economic and Legal Analysis of Tying Arrangements

From the conclusion of Guy Sagi’s A Comprehensive Economic and Legal Analysis of Tying Arrangements, 38 Seattle University Law Review 1 (2014):

There is currently a gap between the economic theory and the prevailing law regarding tying arrangements. These arrangements, which used to be considered essentially harmful, have been shown to possess limited potential for harm—certainly less significant potential than was previously thought. Moreover, tying arrangements have been shown to hold the potential for great and essential benefit. This Article has presented the main accepted modern economic insights, and has proposed the appropriate legal rules for analyzing the various tying scenarios. When the tying arrangement does not lead to a significant closing of the tied product market, and so it does not affect this market’s competitive structure, the legal per se rule should be applied. In contrast, when the tying arrangement leads to a significant closing of the tied product market, the rule of reason test should be applied, but not in the format that assumes that tying arrangements in these scenarios are harmful. Rather, it should be applied in a format that requires the plaintiff to prove the existence of real potential to harm competition significantly. If the existence of harmful potential is proven, the defendant will have to prove a significant efficiency justification. Then, the onus returns to the plaintiff to show that the anticompetitive potential of the tying outweighs its procompetitive potential.

— Joe

AALL issues press release calling on LexisNexis to stop its anticompetitive tying sales policy

“This policy has a detrimental impact on every AALL member using LexisNexis. We have a responsibility to come to the aid of our members and make their voices heard.” — Greg Lambert, AALL President, June 11, 2018 press release.

After failed attempts to discuss LN’s anticompetitive tying sales policy in a substantive way, our association issued this letter to Mike Walsh, CEO of LexisNexis Legal last week. On June 11th, AALL reinforced its position by releasing this press release. Read more about it. — Joe

New lawyer directory: U.S. News Lawyer Directory powered by Best Lawyers

US News & World Report is partnering with Best Lawyers to release the U.S. News Lawyer Directory of lawyers who are working in private practice in the United States. The directory initially includes tens of thousands of lawyers, but eventually will cover more than 1.3 million private-practice lawyers in the United States, according to a press release. See the FAQ for details. — Joe

AALL issues Dear Mike letter calling LexisNexis Legal’s tying sales policy anticompetitive [text]

June 7, 2018

Mike Walsh
CEO Global Legal Business
230 Park Ave, Suite 7
New York City, NY 10017

Dear Mr. Walsh:

On behalf of the American Association of Law Libraries (AALL), I am writing to ask that LexisNexis cease its recently enacted policy of tying access to its electronic and print publication products to the purchase of a license to its Lexis Advance search product. AALL believes this practice is anticompetitive and detrimental to the long-term relationship between LexisNexis and AALL’s constituents.

As you may know, AALL is a national association representing the interests of legal information experts, and is focused on supporting its members’ efforts to provide timely and relevant information to their professional colleagues. Its members include law librarians, Chief Knowledge Officers, marketing and business development research analysts, web content and materials managers, judges, and other information specialists. Many of these members work for law firms and in similar corporate settings, supporting the work of practicing attorneys.

Historically, law firms have been able to purchase from LexisNexis publications and search services that fit the needs of their practice. This practice allowed firms to license access to specialized materials, such as Moore’s Federal Practice, leading treatises such as Nimmer on Copyright, Chisum on Patents, or Collier on Bankruptcy, relevant trade publications such as the various Law360 titles, or analytical tools such as Lex Machina, without necessarily licensing Lexis Advance, LexisNexis’ legal search product.

Since July 2017, however, AALL has received numerous reports from law firm-affiliated members that LexisNexis has adopted a new sales policy. Under the new policy, firms are required to purchase a license to Advance before they can purchase access to other LexisNexis publications and products. And those firms that do not wish to purchase Advance, for whatever reason, have been foreclosed from accessing other products they have used in their practice for years and, in some cases, for decades.

It is evident that LexisNexis has elected to leverage the demand for certain products and publications to extract purchases of its Advance search product. Such conduct is anticompetitive and likely prohibited by law. Equally as important to AALL, this new policy is detrimental to its members and the law firms they serve.

It also has put LexisNexis at odds with standards AALL has promulgated for its members and publishing professionals. The AALL Guide to Fair Business Practices for Legal Publishers describes standards for the business practices of publishers that most directly affect librarians and other legal information consumers. These recommended practices are premised on the belief that good customer service and positive customer relations benefit legal publishers as well as customers. With this aim of mutual benefit in mind, Section 3.2 of the Guide provides that “Publishers should engage in open and fair negotiations with customers regarding licensing agreements and other contracts.” LexisNexis violates this standard by coercively tying access to publications regularly used and relied upon by legal professionals to a subscription to Advance. Likewise, by refusing to consider granting the type of stand-alone licenses it previously provided, LexisNexis fails to provide its customers an opportunity to negotiate contract terms as required by Section 3.2(c). Through its violation of these standards, LexisNexis has placed itself in apposition to the interests of the very law firms that it and AALL seek to serve.

The AALL Committee on Relations with Information Vendors (CRIV) his attempted to open a dialogue with LexisNexis regarding the impact of its anticompetitive policy on law firm libraries and on law firms. But, to date, LexisNexis’ response has been vague, incomplete, and unsatisfactory, evincing. no interest or intent to revoke or otherwise modify the practice in question.

Therefore, I ask on behalf of AALL that representatives of LexisNexis commit to a meeting with AALL leadership, which prefers and encourages open dialogue on this issue, as opposed to legal or commercial action.

Sincerely,

MICHAEL BEST & FRIEDRICH LLP

/s/

James P. Fieweger

Source Document

It’s a start in the right direction. — Joe

Acquiring only what we need and can afford: Getting to “yes” with a vendor behaving like LexisNexis requires one shared imperative that is missing right now

Some six or seven (or eight?) years ago I attended an annual LexisNexis sales force meeting held in Las Vegas, having been invited to speak to inside print sales reps about being an LN customer in one session. While at the annual meeting I sat in on a general meeting of all inside and outside account reps. From this meeting I remember Keith Hawk, then SVP of Sales, speaking about the ethical obligation LN and its sales force had to the company’s customers, an ethical imperative defined as providing lawyers with the professional grade legal resources they need to practice their profession. That was refreshing to hear. It implied that the Company’s sales reps weren’t being instructed to cram down sales of unnecessary legal resources in unwanted formats as a matter of corporate sales policy.

My, how times have changed. Keith Hawk has left LexisNexis. The ethical sales imperative he spoke of appears to have left LN too. This is evident from reports that allege LexisNexis has a new sales policy that finds expression in LexisNexis negotiation ultimatums which tie print and/or ancillary products to licensing Lexis Advance. (LLB posts here, here and here.) Such ultimatums result in law firms and government libraries buying what they don’t need if they can afford to do that, or not being able to acquire what they need for their user population because they cannot afford the additional expense of the tie-in being offered in what appears to be a take it or leave it basis. In those situations, the ethical imperative of selling only those legal resources lawyers need in the formats the buyer chooses has been violated by the seller. That’s just not how to successfully maintain and grow stable win-win vendor-law library relationships in the context of B2B sales.

But are LN’s reported tactics really a new sales policy? What may have happened, at least some instances, was that LN was getting push back from law libraries that didn’t want to transition from Lexis.com to Lexis Advance and LN decided to do some of its own push-back by denying those libraries print and ancillary products. That’s purely speculative on my part, but if true, it is no excuse for violating what had been an ethical imperative that once defined LN’s relationship with its client base. Remember when Thomson Reuters was the “evil” vendor?

Unfortunately, these days we really cannot forecast LN’s ultimate corporate objectives. Nothing much is long term at LexisNexis. LN’s almost annual tradition of corporate-wide reorganizations have taken its toll. Talent and institutional memory have walked out the door, sometimes voluntarily, oftentimes not. LexisNexis Legal is in an almost constant state of flux with chaos reigning in both the company’s cubicle farms and its executive suites. — Joe