From the FTC’s tying page:

Offering products together as part of a package can benefit consumers who like the convenience of buying several items at the same time. Offering products together can also reduce the manufacturer’s costs for packaging, shipping, and promoting the products. Of course, some consumers might prefer to buy products separately, and when they are offered only as part of a package, it can be more difficult for consumers to buy only what they want.

For competitive purposes, a monopolist may use forced buying, or “tie-in” sales, to gain sales in other markets where it is not dominant and to make it more difficult for rivals in those markets to obtain sales. This may limit consumer choice for buyers wanting to purchase one (“tying”) product by forcing them to also buy a second (“tied”) product as well. Typically, the “tied” product may be a less desirable one that the buyer might not purchase unless required to do so, or may prefer to get from a different seller. If the seller offering the tied products has sufficient market power in the “tying” product, these arrangements can violate the antitrust laws.

Example: The FTC challenged a drug maker that required patients to purchase its blood-monitoring services along with its medicine to treat schizophrenia. The drug maker was the only producer of the medicine, but there were many companies capable of providing blood-monitoring services to patients using the drug. The FTC claimed that tying the drug and the monitoring services together raised the price of that medical treatment and prevented independent providers from monitoring patients taking the drug. The drug maker settled the charges by agreeing not to prevent other companies from providing blood-monitoring services.

Can you see the similarity of the FTC’s example and LexisNexis tying?

 

For core legal search, consumers have two primary vendors to turn to, Lexis and Westlaw (WEXIS). “They have perpetuated a secret market of their own design, denying consumers the basic information needed to make informed purchasing decisions,” observed Feit Consulting in Optimizing Legal Information Pricing 2019 Update (“Feit”). We should emphasize “secret market” because Feit estimates that 15-25% of large law firms pay substantially more for core legal search than the rest of this market segment. Why? While consumers can compare the benefits and features of vendor products, comparison of available products based on pricing is not available because of WEXIS NDAs.

Not knowing the “going rate” – not knowing what similarly situated libraries are currently paying for Westlaw or Lexis, most negotiations start with one of two premises:

  1. that the renewal of vendor A is going to cost more than the last contract, but switching to vendor B will cost less than that, or
  2. kicking out vendor A temporarily without a replacement service will result in a lower price offer from vendor A in the not too distant future.

This is churning WEXIS. Churning WEXIS has become a necessity for many law libraries to control legal search costs since the Great Recession because leveraging WEXIS against each other for their core legal search product is the most effective way to obtain cost savings for enterprise search.

Feit Consulting advises “Evaluating and perhaps utilizing the sole provider option has become necessary for law firm administrators to effectively manage these costs. Because of the expense involved and the nature of the market, vendor choice should be re-evaluated in most contract cycles.” The same is true for many government law libraries. So once every three years or so, law firm and government libraries must not renew, or must threaten to not renew, their enterprise-wide search contract to achieve some savings while trying to achieve best in market pricing when market pricing is essentially unknowable. You make your deal and then live with it for a couple of years until it is time to churn again.

Is this the best way to conduct B2B commerce?

The LexisNexis tying controversy was on the agenda for our association’s Spring executive board meeting. It appears on the April 5 agenda as one of six items listed under the heading “informal considerations.” See the Spring 2019 Meeting Board Book. The agenda indicates that AALL President Femi Cadmus gave an “update on current LexisNexis Practices.” There was no action item associated with the tying controversy agenda item. Hopefully AALL will communicate the substance of this update to the rank-and-file membership in the near future.

H/T to Bob Ambrogi for reporting that Fastcase will be adding ABA publications:

Steve Errick, chief operating officer at Fastcase, told me that he is working with the ABA to add publications from different sections one at a time, with family law, health, trial, IP, and criminal law among the first sections in the pipeline. He did not specify the titles to be added but said the arrangement would average 30-60 titles per section.

Subscribers will have access to these titles from directly within the Fastcase 7 platform, but they will be required to purchase the titles to which they want access. Individual titles will be sold at the ABA’s retail price, while firms that purchase multiple or enterprise subscriptions will be eligible for discounts based on number of titles purchased and number of firm users.

Even though individual titles will be priced the same as purchasing them from the ABA, subscribers get two benefits by purchasing them through Fastcase, Errick said. One is ease of access to the titles directly from the platform and the other is the addition within the books of links to cases and regulations.

From the press release:

“The vision for Fastcase is to make it easy for users to connect the legal research workflow dots, from primary law and public records, dockets, expert witness, legal analytics, and legal news,” Errick said. “The collection includes law review articles from HeinOnline, alerts, digests and blogs from LexBlog, and now our fast-growing collection of more than 1,000 market-leading expert treatises. To see it all come together and be able to showcase these fantastic books represents the culmination of 20 years of effort, and we feel like we’re really just getting started,” he added.

State and local bar partners, consumer bankruptcy customers, and AmLaw 250 subscribers have been asking Fastcase for risk solutions that include public records data according to Fastcase President Phil Rosenthal and Fastcase COO Steve Errick. To satisfy the request, Fastcase has partnered with TransUnion. In a nutshell, Fastcase users who sign up with TransUnion to access its TLOxp platform can use TransUnion information to perform due diligence, conduct litigation support, locate witnesses, track ownership of assets, verify identities, and conduct other investigations.

The integration will be available in Fastcase 7 when it comes out of beta sometime later this month or early in April. Both Bob Ambrogi and Jean O’Grady have the details. Recommended.

LexisNexis Legal revenues for the year ended December 31 2018 were £1,618m, compared with £1,686m in 2017. Underlying adjusted operating profit growth for LexisNexis Legal was +10% which produced a profit margin of approximately 19.8%. In 2018, 67% of revenue came from North America, 21% from Europe and the remaining 12% from the rest of the world. Subscription sales generated 77% of revenue and transactional sales 23%. Read the report here.

Bridget J. Crawford’s Information for Submitting to Online Law Review Companions (Feb. 2019) “contains information about submitting essays, commentaries, reviews, responses, and other writings to online companions to the main law reviews and journals at selected law schools. The document includes word-count limitations, subject matter specifications, preferred submission methods and other information of possible interest to authors. It covers 20 online companions to main law reviews.”

From the press release:

As a leader in the global movement toward open access to publicly funded research, the University of California is taking a firm stand by deciding not to renew its subscriptions with Elsevier. Despite months of contract negotiations, Elsevier was unwilling to meet UC’s key goal: securing universal open access to UC research while containing the rapidly escalating costs associated with for-profit journals.

Referring to my Nov. 8, 2018 LLB post entitled So what’s up? Is AALL going to follow up on the LexisNexis tying controversy? a reader asked what I knew about the current status of the AALL-LexisNexis tying dispute last week. My response: to the best of my knowledge, nothing has happened since the July 2, 2018 meeting between AALL officers and LN where LN executives served up the company’s usual word salad over this controversy.

The reader could have but didn’t ask:

  • “Will the LexisNexis tying matter be on the agenda for the executive board’s next meeting?” Don’t know. Too soon to say because the meeting’s agenda will not be released until early April.
  • “If not, does this mean that the executive board doesn’t intend to take legal or commercial action after the unproductive July 2, 2018 meeting?” I fear it may.

What AALL has done so far.  After fielding requests for assistance from law firms without obtaining satisfactory resolutions of the tying complaints, CRIV recommended that the executive board issue a “letter of disapproval.” The matter was placed on the executive board’s Spring 2018 meeting agenda and after the meeting the executive board issued a statement that the executive board was going to investigate LN’s tying sales policy.

On June 7, 2018, the executive board sent LN’s CEO Mike Walsh a letter criticizing the tying sales policy and calling for a meeting to resolve the controversy. That meeting took place of July 2, 2018 and was reported to the rank-and-file membership. In a nutshell, LN stonewalled AALL by stating that  the company 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. From the meeting’s summary prepared by AALL:

“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.”

Since then, CRIV has continued to field requests for assistance by law firms over the tying policy and on Nov. 29, 2018, CRIV brought up the matter during its semi-annual vendor call once again. In essence, LN’s response stated its tying policy was legal so the company was going to continue executing it. Here’s one pertinent part of LN’s statement to CRIV:

“We appreciated the time and effort the AALL leadership team put into sharing their insights on our products and pricing. We will certainly keep these perspectives in mind as we move forward. We also were grateful for the opportunity to discuss our integrated product strategy and our compliance process that includes internal and external legal review of all pricing and packaging prior to release to customers.”

And that’s where the matter stands.  If it is not on the Spring 2019 executive board meeting agenda, then in all likelihood, AALL’s first significant attempt at consumer advocacy for law firms in many, many years has failed due to the executive board’s collective lack of will power to stand by its statements.

Thomson Reuters has released Thomson Reuters Panoramic, a cloud-based product geared toward large and midsize law firms to help them budget, plan for and manage matters in real time. Panoramic will be available in the United States and the United Kingdom. A spokesperson for the company said it would evaluate making it available in other jurisdictions later on. Panoramic will launch with a deep focus on corporate mergers and acquisitions, capital markets, litigation and finance. Thomson Reuters expects to build out additional practice areas over time. From the press release:

At the heart of Panoramic are dynamic Matter Maps, created and kept up to date by expert Practical Law attorney editors. These Matter Maps include the phases and underlying tasks needed to execute a specific legal matter, helpful not only in managing and doing the work, but also for understanding the matter and building budgets. Matter Maps in Panoramic contain a sophisticated logic system that guides users to the specific tasks relevant to the facts of their case and provides a common language between the front and back office so that a new matter is planned in a way that will drive positive results for the firm and client. In this way, Panoramic also helps partners and pricing directors achieve more informed and faster scoping and budgeting.

In the history of law library-vendor relations, Thomson Reuters traditionally has been viewed as “the evil vendor” for its long history of nasty B2B relations with law libraries due to the company’s past aggressive duopolistic business practices. No longer in my opinion. One clear impression I got from reading Feit Consulting’s 2019 Legal Information Vendor Market Survey Summary for Survey Respondents is that LexisNexis is the new evil vendor.

It takes a lot to replace Thomson Reuters for this “honor.”  Despite TR trying to gouge law libraries by attempting to charge as much as a 20% premium for Westlaw Edge and pricing Practical Law too high according to survey respondents, dissatisfaction with the functionality of LexisNexis’ search platform, pricing trends, and new tying tactics is so widespread and passionate among survey respondents that LexisNexis is clearly entrenched as our new evil vendor.

I’m not sure how LexisNexis ended up here.  Perhaps because of –

  • the decline in cost recovery practices for search services along with the reduction in the number of firms that provide both Westlaw and Lexis since 2008;
  • the 2011 not ready for prime time release of Lexis Advance;
  • the nearly annual corporate-wide reorganizations, and executive, managerial and account rep staff replacements (voluntary or not);
  • the perception that the company is now offering a search product inferior to Westlaw Edge (While most Feit survey respondents do not license Westlaw Edge yet a majority of Westlaw respondents say they will within the next 3 years.); and
  • the company’s new tying tactic leverages the popularity of its legal news products in an attempt to prop up Lexis Advance’s install base and revenue stream (And which appears to be backfiring according to the verbatim comments found in the Feit survey.).

My bottom line:  LexisNexis needs a turnaround specialist in its C suite.

Bob Ambrogi is reporting that Thomson Reuters is rolling out Precedent Analytics for Westlaw Edge users today. “Precedent Analytics lets users see the citation patterns of individual judges, revealing the cases, courts, judges and citation language they rely on in deciding different legal issues. It also shows the frequency with which judges have dealt with different issues,” writes Bob. Details on LawSites. See also this Dewey B Strategic post.

Bob Ambrogi is reporting that Thomson Reuters has withdrawn as an ABA TECHSHOW exhibitor this year. Bob reports:

Michael Abbott, vice president of global thought leadership and of the Legal Executive Institute at Thomson Reuters, is the executive who was responsible for the company’s decision not to exhibit at TECHSHOW this year.

Over the past year, he said, TR has been re-evaluating all trade shows it attends to consider how best to engage with the customers who attend those shows. “As we start to think about how best can we engage with the customers, this is one where we thought we’d go in a different direction,” he said.

TR participates in a number of trade shows and spends a large number of dollars in doing so, he noted. It is rethinking its strategy with regard to all of those shows, he said.

Makes one wonder if TR is considering doing the same for AALL’s annual meeting.

Michael Feit offers some tantalizing preliminary results from Feit Consulting’s 2019 Legal Information Vendor Market Survey. The survey found that 54% of Am Law 200 firms use either Lexis or Westlaw but not both. Firms that have gone sole search provider are more satisfied with the remaining vendor.

In another post, Feit reveals how satisfied firms are with their vendors generally. 70% of firms are moderately/extremely satisfied with Westlaw. Wolters Kluwer scores a 55% moderately/extremely satisfied response, Lexis 32% and Bloomberg 20%. In view of the satisfaction ratings, the preliminary results for firms considering cancellation at the next contract renewal is not surprising. 46% of firms are considering canceling Bloomberg, 33% of firms with Lexis, 14% of firms with Westlaw and 13% of firms with Wolters Kluwer are considering cancellation of those vendor contracts.

As 2019 commences, it looks like Westlaw and Wolters Kluwer are market leaders in their respective search markets — general for Westlaw, and specialist market for Wolters Kluwer. I wonder how much Lexis and Bloomberg’s recent product tying changes have contributed to their dismal performance in Feit Consulting’s 2019 Legal Information Vendor Market Survey.

On Nov. 29, 2018, CRIV conducted its Fall semiannual call with LexisNexis (reported in CRIV Blog on Dec. 18, 2018 here). CRIV tried to address two advocacy requests from law firms unable to renew their Law360 subscriptions without having a Lexis Advance contract. Here’s what LexisNexis said:

We’ve worked with Law Librarians and AALL over many years and deeply respect our longstanding relationship with this community. We see Law Librarians as critical collaborators in the journey to evolve our offerings and better serve all customers. It is in that same spirit that we’re engaging with AALL to fully understand the concerns that have been raised. Ultimately, our goal is to provide legal information and analytics that help lawyers cut through vast amounts of data to efficiently gain insights, make better decisions, and achieve the best outcomes possible.

We appreciated the time and effort the AALL leadership team put into sharing their insights on our products and pricing. We will certainly keep these perspectives in mind as we move forward. We also were grateful for the opportunity to discuss our integrated product strategy and our compliance process that includes internal and external legal review of all pricing and packaging prior to release to customers. Since pricing and packaging plans vary by customer type and are customized to meet specific customer needs, we encourage members to follow-up with their LexisNexis account representative with any questions regarding their firm’s specifics.

AALL leaders shared their “insights” in this June 7, 2018 letter to LN CEO Mike Walsh. That letter stated, among other important points that “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.”

Nothing has changed; AALL leadership has yet to take action against LexisNexis.

From the abstract for Guy A. Rub, Amazon and the New World of Publishing, 14 ISJLP 367 (2018)

In 2012 the Department of Justice sued Apple and the major book publishers for their role in a conspiracy to raise the prices of eBooks. The publishers settled while the Apple case proceeded to trial in which the company was found liable for violating the Sherman Act. Chris Sagers’s upcoming book, Apple, Antitrust, and Irony (Harvard University Press) explores the conspiracy and the events that led Apple to orchestrate it. Through the Apple conspiracy, Sagers examines developments in antitrust law and competition policy in recent decades.

This essay offers several observations concerning Sagers’s comprehensive account, the Apple conspiracy, and mainly its aftermath. Analyzing that aftermath means focusing on the entity that was left in control of the market once the dust settled: Amazon.

The essay argues that Amazon’s dominance in the book and eBook markets is troubling and that shielding it from legal scrutiny is problematic. Nevertheless, it explains that while Amazon’s actions gradually push the major publishers out of the market, their potential demise is not necessarily bad. Technological changes reduced the value of many of the major publishers’ services to the point in which the publishers and Amazon are two types of intermediaries in a market that might need only one. As such, the conflict between Amazon and the major publishers is partly unavoidable as it is just another example of the tension between vested short-term interests and socially desirable long-term disruptive reforms.