Mat Hughes
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Questions and Answers:

Who's Who Legal Thought Leaders - Competition

Mat Hughes is a managing director in AlixPartners’ European competition practice, which is part of a broader litigation practice. He has 29 years of experience as an antitrust economist, and in dealing with European and UK competition authorities and specialist utility regulators in relation to all aspects of competition law. Mat was described in the economists’ section of WWL: Competition (2015) “as one of the foremost competition economists in the UK”.

WHAT DO YOU ENJOY MOST ABOUT PRACTISING AS A COMPETITION ECONOMIST?

I most enjoy the challenges and variety. There is never a dull day. The cases and markets we work on are always complex; we would not be involved if the matter was straightforward. This puts you through your paces as an economist in terms of both identifying the key economic issues and developing the supporting body of facts to assess these issues. This requires you to have an open mind, ask awkward questions, and collaborate effectively with lawyers and clients. 

I also enjoy the interplay between economics, policy and law. It is important to bear in mind that the subject context of our work is competition law (not “make it up as you go along”), and the economic and policy issues need to be addressed within the (evolving) legal framework.  

WHAT HAS BEEN YOUR GREATEST ACHIEVEMENT TO DATE?

This question tempts you to list your case successes and also to dwell on your role. The reality is that almost all of my successful cases have been with teams of colleagues, clients anchoring the arguments in business reality, and the clients’ lawyers asking thoughtful questions – and ultimately depended on helpful facts/data, even if we have found and proved these points. Fortunately, after nearly three decades of work there are some I can mention. 

I have particularly enjoyed two things since I joined AlixPartners in 2013. First, collaborating effectively with a diverse range of colleagues across geographies and disciplines, and across many markets from banking to wire harnesses. This has included working globally with an array of talented colleagues, including (among others) working with experts in automotive parts, the manufacture of industrial chemicals, banking customer research, customer location mapping, forensic accounting, litigation data analytics, and turnaround and restructuring. This has enabled us to do distinctive work and make a real difference to clients. 

Second, I have also enjoyed working with my fellow partners to build a diverse team of talented economists and working closely with them on complex and difficult cases. In 2013 I was the sixth economist in Europe, and there are now some 25 of us across London and Germany. I have learned much from them. I am also delighted when colleagues in the team are promoted, which has also been another consistent theme over the past five years. Matt Hunt’s and Derek Holt’s promotions to partner in 2017 and 2018 respectively were both pleasing and well deserved. They are great colleagues who always have plenty of insights to offer.

HOW DOES ALIXPARTNERS KEEP A COMPETITIVE EDGE IN THE MARKET? 

Perhaps the first thing to say is that AlixPartners is a global consulting business with over $1 billion of revenues focusing on high-stakes, “when it really matters” situations. Two of its core focuses are hiring and developing the best people (see above!) and rigorously applying consulting skills in working with clients to deliver outcomes. This emphasis on consulting skills across our team is essential. 

Turning to the specifics of competition economics, to be scientific economics needs to be evidence-based, and it is therefore very important to be able to weigh up properly the overall body of evidence. Moreover, economic evidence is not the responsibility of economists alone as input is often required across multiple disciplines. The firm has done two important things that really helps our global economics business. 

First, it has set up a series of industry and digital/technology groups that work closely with clients to improve their businesses and address challenges. These groups make such multidisciplinary collaboration straightforward on economics and litigation cases. For example, my work on the many automotive cartel cases has always involved close cooperation with automotive experts, who typically have several decades of automotive industry experience from procurement to engineering to distribution. 

Second, our focus on evidence is also well served by our economics practice sitting within a commercial litigation practice, including forensic accountants and legal technology experts. Even where the matter is not subject to litigation (eg, a merger filing), it is a good discipline to treat it as such as this encourages a focus on the evidence base for each key proposition.  

IN WHAT WAYS HAS THE USE OF LITIGATION FUNDING EVOLVED OVER THE YEARS?

Litigation funding is now a mainstream activity used by a wide range of corporates. Litigation funding is actively considered by claimants in almost all cases now, including by those who can afford to fund the litigation but wish to manage and control the risks better. This fundamentally changes the dynamics of litigation, including competition litigation. 

WHAT ARE THE CHALLENGES PRESENTED TO YOUR PRACTICE BY SECTORS THAT RELY ON DIGITAL TECHNOLOGIES, AND HOW IS YOUR PRACTICE ADAPTING? 

There are two dimensions to this question. First, many firms now routinely generate and collect (but don’t necessarily analyse) a wide range of information on the prices that their individual customers pay, customer behaviour, their costs and competitor responses. Competition authorities are increasingly seeing this as a rich source of information to assess how rivalry operates in practice, and the competitive and consumer effects of mergers and firms’ conduct. For example, in May 2018, the Competition and Markets Authority (CMA) appointed Stefan Hunt to a newly created role as its chief data and digital insights officer. Stefan’s brief includes helping the CMA to better understand the impact that data, machine learning and other algorithms have on markets and people.

Accordingly, we increasingly see our digital and legal technology businesses working on competition and regulatory matters to gather and process large volumes of data. This has already been a feature of financial services investigations in recent years to understand consumer behaviour, and also to understand the impact of information exchanges and market manipulation on the prices of financial instruments. 

Second, many digital markets differ from traditional businesses in terms of how they attract customers and derive revenues, including by attracting consumers by providing valuable services for free and then monetising these services through advertising. Accordingly, in these two-sided markets one needs to think through carefully the competitive constraints they face and the impacts of their conduct on rivalry.  

However, these issues are less novel than is sometimes presented and there are important lessons from other long established two-sided markets, for example media markets have traditionally been funded by advertising but have faced competitive challenge due to rivalry from new media markets. Similarly, there has been substantial scrutiny of the interchange fees applied in relation to four party bank credit and debit cards, where mobile payment systems, other cards, and alternative payment means are affecting market dynamics.  

HOW DO YOU PREPARE TO GIVE TESTIMONY IN COURT AS AN ECONOMIC EXPERT? 

Meditation.

Joking aside, the die is cast long before you appear before a court. The process in fact starts from agreeing your instructions with counsel. For example, precisely where do these assumptions, data and “facts” come from? You need to be clear as to the scope of your evidence and your instructions, particularly where this might limit the relevance or usefulness of your evidence. 

Each word of your expert reports is likely to be closely scrutinised. Accordingly, expert reports should be written and reviewed like a share prospectus (ie, every point needs to be ticked off as to its evidence base, including contrary evidence), and the same applies to testimony. Confirming the robustness of data and facts is of crucial importance, since otherwise poor data may compromise any analysis based on that data.

By the time you give testimony, you should be clear as to the differences in views between the experts, carried out sensitivity analysis as the significance of the differences, and thus identified the key assumptions/data and modelling approaches where a court will need to take a view as to the right approach to take. This may be covered in a joint expert statement, but this might warrant refinement (eg, if the points of disagreement are too voluminous or complex). This should define the scope of the questions you may be asked (but see below). 

While your duties to the court vary between jurisdictions, it is important to be clear what these are. In particular, in many jurisdictions you are not meant to be an advocate for your underlying client. Even if your duties to the court are limited, ultimately for your evidence to be relevant and useful, it does need to be treated as a science experience (ie, your report need to cover hypotheses, data, method, techniques/apparatus, results, conclusions). Conclusions may be black, white or various shades of grey, and it is generally better to take a balanced view. If alternative views are credible, this should be acknowledged. Similarly, the right answer to some questions might be a range, and qualitative considerations might suggest some parts of this range are more realistic.

You also need to be clear that your audience is the court. This is the level at which your answers should be pitched, with complex points introduced simply and then elaborated on. 

All of the above, of course, applies to the written reports as well as oral testimony. In this context, once you have taken care with your written reports, you then merely need to prepare to give oral testimony… You self-evidently need to know your reports, the opposing reports, and the relevant facts/witness evidence. You should prepare your answers to likely questions in advance.

In the context of preparing for questions, you may also be asked hypothetical “what if” questions that invite you to consider what the consequences would be if facts or assumptions are different. As noted above, some of this is entirely reasonable, but this may on occasion miss the point or be completely divorced from the facts. One of my favourite retorts to this was from a lawyer who said that’s just like asking, “Apart from that, Mrs Lincoln, how was the play”? (Obviously, referring to the assassination of Abraham Lincoln.) 

WHICH QUALITIES DOES A COMPETITION ECONOMIST NEED TO BE SUCCESSFUL?

A wide range of skills are required.

A proper understanding of economic theory is clearly a prerequisite. However, it is crucial to collaborate effectively with the client, lawyers and other disciplines to build up the evidence. This search for evidence should also involve actively engaging with the business as to how competitive decisions are made in practice, rather than theory. In this regard, it is also important to find and understand internal documents, with competition authorities attaching much weight to such documents. (However, one should never delegate complete economic assessments to email correspondence or PowerPoint presentations from clients who are keen to promote their successes.) 

It is also important to bear in mind that consulting skills are also crucial. In particular, economists need to be story tellers, who need to explain complex ideas succinctly in plain English (or German, French, etc) and appropriately tailored to the audience. Ideas that might be understood only by other economists tend to much less influential than ideas that can be understood widely. Good stories should also have high interest value, and are never delivered at a volume level of 10 (ie, endeavour to remain polite!). Finally, competent economists remember that inconvenient facts can get in the way of an otherwise good story. 

ARE THERE ANY GOALS YOU WOULD LIKE TO ACHIEVE IN YOUR CAREER THAT YOU HAVE NOT ALREADY?

I have been fortunate to have already had a varied career. I had the good fortune to start my career at the UK Office of Fair Trading, which was a first-rate training ground and provided wide ranging experience. I then headed up the economics practice at Ashurst, where I was a senior equity equivalent partner for 13 years, which provided a varied diet of interesting cases and taught me the value of working closely with (great!) lawyers. AlixPartners has also been a very positive experience for the reasons discussed above. My ambition for the next five years is more of the same. 

Biography:

Who's Who Legal Competition: Economists

Mat Hughes is a managing director in AlixPartners’ European competition practice, which is part of a broader litigation practice. He has 29 years of experience as an antitrust economist, and in dealing with European and UK competition authorities and specialist utility regulators in relation to all aspects of competition law. Mat was described in the economists’ section of Who’s Who Legal: Competition (2015) “as one of the foremost competition economists in the UK”.

Mat is also acting in relation to a number of competition damages cases, including for three international car/truck companies and in relation to a pharmaceutical “pay-for-delay” case, and in relation to the polyurethane foam cartel.

Mat has acted for clients before the Competition and Market Authority (CMA)/Competition Commission (CC) on more than 30 cases covering detailed phase-two merger and market investigations, as well as on a very large number of first phase mergers. For example, Mat acted before the CMA in relation to its market investigations relating to personal current accounts and SME banking, acted before the CMA in relation to its private motor insurance investigation, and in relation to the CC’s Groceries investigation and in the subsequent remittal. As regards mergers, Mat acted on JD Sports/Go Outdoors (CMA), Ashtead/Lion (CMA), Ballyclare/LHD (CMA), Imerys/Goovean (CC), Kemira/GrowHow (CC), Billerud/Kinnervik (DG Comp), P&O/Stena (CC), Sky/ITV (CC), Arla/Milk Link (DG Comp), Ahlens/NK (Sweden second stage) and Edmundson Electrical/Electric Center (OFT).

Mat has also advised widely on the application on the economics of regulation and the interface between regulation, competition and consumers’ interests. This includes acting for British Gas of the first ever customer-led appeal of a network price control decision in the UK, a judicial review application for Speed Medical, and for various utilities.

Mat started his career as an economist at the UK Office of Fair Trading, and until March 2013 was chief economist at Ashurst LLP. Mat has a BA degree in economics and accountancy from the University of Kent at Canterbury, and an MSc in economics from Queen Mary College, University of London.

Mat has written and spoken widely on competition matters. This includes a series of articles on the economics of EU and UK merger control in ICLG’s Comparative Legal Guide to International Merger Control for many years (covering matters such as failing firm and efficiency defences, the economic assessment of retailer mergers, and the assessment of the competitive effects of mergers on innovation following the European Commission’s Dow/DuPont decision), a chapter in Global Legal Insight’s publication Merger Control 2017 on The economics of UK merger control: retrospect and prospect, and co-authoring the leading book on UK merger control (Parr, Finbow and Hughes, with the third edition being published in November 2016).

He has also written about the importance and application of economic evidence in stand-alone private actions in the UK courts from 2010 to 2014, a practical guide to the assessment of damages under UK and EC competition law, the certification of claims by the UK Competition Appeal Tribunal as eligible for inclusion in collective proceedings, the assessment of unilateral public price announcements, and (following the European Court of Justice’s judgment in Intel and the Commission’s Qualcomm decision) “Loyalty rebates – all change or business as usual”.

WWL says: Mat Hughes has over 25 years’ experience in the field of competition economics. One source notes, "He is able to work to tight deadlines and gives good sensible advice on how clients should approach the CMA.”

This biography is an extract from Who's Who Legal: Competition which can be purchased from our Shop.

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