Legal Information: Legal Information: Globalization, Globalization, Conglomerates and Conglomerates and Competition--Monopoly or Competition--Monopoly or Free Market Free Market May 19, 2009 May 19, 2009 Kendall F. Svengalis Kendall F. Svengalis Rhode Island LawPress Rhode Island LawPress
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Building blocks of a successful Building blocks of a successful legal publishing enterpriselegal publishing enterprise
Online legal research serviceOnline legal research service State and federal primary lawState and federal primary law Substantial body of secondary and Substantial body of secondary and
analytical resourcesanalytical resources Citator serviceCitator service
Westlaw (online primary and secondary Westlaw (online primary and secondary resources)resources)
Primary law in print for all jurisdictionsPrimary law in print for all jurisdictions Largest body of secondary and analytical Largest body of secondary and analytical
materials in print formatsmaterials in print formats KeyCite (on Westlaw)KeyCite (on Westlaw)
LexisNexis (online primary and LexisNexis (online primary and secondary resources)secondary resources)
Primary law in print for many Primary law in print for many jurisdictionsjurisdictions
Substantial body of secondary and Substantial body of secondary and analytical resources in print formats analytical resources in print formats (Matthew Bender, Michie)(Matthew Bender, Michie)
Shepard’s Citations serviceShepard’s Citations service
Loislaw (primary law and modest Loislaw (primary law and modest secondary resources)secondary resources)
No print primary lawNo print primary law Substantial secondary/analytical Substantial secondary/analytical
resources (CCH, Aspen, Wiley)resources (CCH, Aspen, Wiley) Global Cite (bare bones citator Global Cite (bare bones citator
service) service)
What they said in 1996:What they said in 1996:Anne Bingaman, Chief of U.S. Anne Bingaman, Chief of U.S. Justice Department’s Antitrust Justice Department’s Antitrust Division:Division:
““We are all consumers of legal We are all consumers of legal information from time to time information from time to time and as citizens we rely on and as citizens we rely on access to information about access to information about our nation’s laws. Competition our nation’s laws. Competition in the legal publishing industry in the legal publishing industry helps keep costs low,helps keep costs low, improves product quality and improves product quality and increases innovation.”increases innovation.”
Toronto StarToronto Star, June 20, 1996, June 20, 1996
Thomson General Thomson General Counsel Michael Harris:Counsel Michael Harris:
““The merged companies The merged companies have no plans to have no plans to discontinue products or discontinue products or raise pricesraise prices.”.”
As quoted in As quoted in ABA ABA JournalJournal, May 1996., May 1996.
What Svengalis said in 1996What Svengalis said in 1996
““Svengalis also worries that Thomson will Svengalis also worries that Thomson will increase prices. In 1987, Lawyer’s Co-op increase prices. In 1987, Lawyer’s Co-op marketed its American Jurisprudence legal marketed its American Jurisprudence legal encyclopedia for $584. Thomson bought that encyclopedia for $584. Thomson bought that company in 1989, and by 1994 the price was company in 1989, and by 1994 the price was $1,450 [a 148% increase]. There are lots of $1,450 [a 148% increase]. There are lots of similar price increases that run throughout their similar price increases that run throughout their secondary materials.” secondary materials.”
34 ABA Journal / May 199634 ABA Journal / May 1996
““Profit margins are probably the Profit margins are probably the most mean-reverting series in most mean-reverting series in finance, and if profit margins do not finance, and if profit margins do not mean-revert, then something has mean-revert, then something has gone badly wrong with capitalism. gone badly wrong with capitalism. If high profits do not attract If high profits do not attract competition, there is something competition, there is something wrong with the system and it is not wrong with the system and it is not functioning properly.”functioning properly.”
Jeremy GranthamJeremy Grantham
Operating Profit Margins of Operating Profit Margins of The Big Three: 2008The Big Three: 2008
0.00%
5.00%
10.00%
15.00%
20.00%
25.00%
30.00%
35.00%25-year CorporateAverage 8.30%
Current CorporateAverage 10.3%
Wolters Kluwer 22.50%
Reed Elsevier 26.44%
Thomson/WestLegal & Regulatory32.10%
Thomson Corporation: Thomson Corporation: Operating Profit Margins of Operating Profit Margins of
Professional Divisions: 2008Professional Divisions: 2008
0
0.05
0.1
0.15
0.2
0.25
0.3
0.35 Health Care 18.2%
Scientific 27.2%
Tax & Accounting 25.4%
Legal & Regulatory 32.1%
Average Annual Increase in Average Annual Increase in New Costs, 1995-2009New Costs, 1995-2009
Average Annual Increase in Average Annual Increase in Supplementation Costs, 1995-2008Supplementation Costs, 1995-2008
0.00%
2.00%
4.00%
6.00%
8.00%
10.00%
12.00%
14.00%
New Cost Supp.Cost
Aspen
BNA
CCH
LexisNexis MatthewBenderLexisNexis Michie
Thomson/West
History of Antitrust EnforcementHistory of Antitrust Enforcement
United States v. Vons Grocery Co., 384 U.S. 270 (1966)
The court rejected a merger of two grocery chains in the Los Angeles area whose combined
market share was 7.5%
United States v. Pabst Brewing Co.,United States v. Pabst Brewing Co.,384 U.S. 546 (1966)384 U.S. 546 (1966)
The Supreme Court disallowed a merger of two brewing firms that
together accounted for 24% of beer sales in Wisconsin, 11% of sales in three states of upper Midwest, and
less than 5% nationally.
History of Antitrust EnforcementHistory of Antitrust Enforcement
1970s Rise of the “Chicago School”
A body of lawyers and economists associated with the University of Chicago, including Robert Bork, Richard Posner, Harold Demsetz,
and others.
History of Antitrust EnforcementHistory of Antitrust Enforcement
Bork and his allies argued that
The likely prospect of net efficiency gains, coupled with ease of market entry, should preclude government intervention in business conduct except where economic theory indicates that harm will result.
The Warren Court denied consumers the benefits of free market resource allocation by protecting small, weak, poorly managed, inefficient and inadequately funded businesses.
History of Antitrust EnforcementHistory of Antitrust Enforcement
A monopoly based on efficiency benefits consumers and should be left alone.
Market entry by new competitors will invariably erode market dominance that is not based on efficiency.
History of Antitrust EnforcementHistory of Antitrust Enforcement
1981- Reagan-era appointment of William F. Baxter to head the Antitrust Division ushered in a new era of neglect.
In the field of legal publishing, this was best exemplified by the approval of the Thomson-West merger in 1996.
Current era of antitrust marked byCurrent era of antitrust marked by
The right to curb retail price The right to curb retail price competition.competition.
Tactics that exclude new challengers Tactics that exclude new challengers from a marketfrom a market
Unopposed mergers that create Unopposed mergers that create overpowering market giantsoverpowering market giants
History of Antitrust EnforcementHistory of Antitrust Enforcement
There is a rising sense that the pendulum has swung too far in the direction of lax enforce-ment. Two recent books promote this view:
Pitofsky, Robert, ed. How the Chicago School Overshot the Mark: The Effect of Conservative Economic Analysis on U.S. Antitrust. New York: Oxford University Press, 2008.
Reback, Gary. Free the Market!: Why Only Government Can Keep the Marketplace Competitive. New York: Portfolio, 2009.
Characteristics of Legal Characteristics of Legal Publishing OligopolyPublishing Oligopoly
1. Oligopolies are often characterized as markets in which the four largest firms control 40% or more of the market. Indeed, Thomson/West alone accounts for 41% of the market.
2. Generally speaking, oligopolies compete on product differentiation rather than price.
3. The concentration of products and services in the hands of three legal publishing conglomerates between 1979 and the present effectively swept the decks clear of potential sources of competition.
4. Potential rivals are, most likely, candidates for acquisition by one of the cash-rich Big Three.
Characteristics of Legal Characteristics of Legal Publishing Oligopoly (cont.)Publishing Oligopoly (cont.)
5. Short and near-term potential for serious potential rivals is limited by market power of existing players, current legal research habits, and concentration of authors and editors.
6. Thomson/West, alone, has been able to corral a critical mass of legal products and services, including the two major systems of legal information, a commanding share of primary law and analytical tools, and a substantial share of the online market, which has allowed it to increase prices at rates far in excess of its rivals.
7. Thomson/West has uniquely been driven to increase prices and profit margins at the expense of its customers and to fundamentally alter the law library landscape.
Thomson/West print publications: Thomson/West print publications: average annual supplementation average annual supplementation
Legal Information Buyer’s Guide & Legal Information Buyer’s Guide & Reference Manual 2009Reference Manual 2009
Cost and supplementation cost data (chapter 27):
Fletcher Corporation Forms Annotated. 4th ed. By Lenore M. Zajdel. St. Paul, MN: West (Clark Boardman Callaghan), 1980-date. 33 vols. Annual pocket parts and periodic revised volumes.Cost: $2,705; supplementation: 1993: $429; 1994: $528; 1995: $511; 1996: $519; 1997: $599.70; 1998: $750; 1999: $918.40; 2000: $1,097; 2001: $1,302; 2002: $1,052; 2003: $1,152.50; 2004: $1,291; 2005: $2,531.50; 2006: $2,027.50; 2007: $1,575; 2008: $2,909; CD-ROM: $2,220 per year. May also possibly be purchased in tandem with Fletcher Corporate CD-ROM (LawLink) at discount pricing for set and all future upkeep.
1995-2008: 334% - 13% average annual increase
Hypothetical $100,000 baseline budget Hypothetical $100,000 baseline budget projected at 5% and 13%projected at 5% and 13%
average annual increases over 10 yearsaverage annual increases over 10 years
Supplementation and continuing Supplementation and continuing subscription costs are the name of subscription costs are the name of
the legal publishing gamethe legal publishing game
Lower new set prices and promotions are the bait, but these prices must be increased periodically to limit the “write-for-order” strategy of buy and cancel.
More than 85% of profits are derived from continuing supplementation costs.
West special promotionsWest special promotions
2006 St. Patrick’s Day promotion--20% discount on every order of $150.00 or more. Example:
Fletcher Corporation Forms Annotated2005 Price: $1,263.00
2006 Price: $1,888.00 minus 20% discount = $1,510.00
2007 Price: $2,373.00
2009 Price: $2,705.00
No Pot of Gold here!
The 20% discount is a trifling compared to profits it hopes to make off supplementation costs in future years.
Cost-Saving TipsCost-Saving Tips
Before leasing office space, consider the distance to the nearest public law library.
Spend a few hours determining what resources are available at the law library
before acquiring any of these for your office. You will then be in a better position to make
informed purchases based upon quality, suitability, cost, frequency of usage, and
travel time saved.
Cost-Saving TipsCost-Saving Tips
Legal information is a virtual minefield for the unwary consumer. Legal publishers
make 80-85% of their revenues from subscription sales, i.e. either subscriptions to online services or supplements to print products. Implement strategies to control
these automatic costs.
Cost-Saving TipsCost-Saving Tips
Before subscribing to a premium online research service (Westlaw or Lexis), take full advantage of low-cost alternatives, particularly Casemaker (available as a
benefit of bar association membership), the free resources on LexisOne, VersusLaw, or
free state government sources for cases, statutes and regulations.
Cost-Saving TipsCost-Saving Tips
If you are tempted to subscribe to a premium legal research service, give it a
test run first, on a daily, weekly or monthly basis. Or, if your usage is likely to be
infrequent, schedule your research work within the limits of your short-term
subscription.
Cost-Saving TipsCost-Saving Tips
If your online research reaches a threshold at which an annual subscription to one of
the premium online services is desired, and you are in a firm of 40 attorneys or less,
you can opt for either a Westlaw PRO or a Lexis Total Practice Advantage
subscription.
Cost-Saving TipsCost-Saving Tips
Avoid print subscriptions, particularly to the large state or national research sets. If
desired, these materials can be added to a Westlaw PRO subscription for a fraction of
their cost to maintain in print.
Westlaw PRO Savings v. printWestlaw PRO Savings v. print
Westlaw Pro ConnecticutPlusAm Jur 2dAmerican Law ReportsAm Jur Legal FormsAm Jur Pl. & Prac. FormsAM Jur Proof of FactsAm Jur TrialsCauses of Action
$2,208 per year ($184/mo.)
Same titles in print:
Initial cost: $43,302
Supp. Cost (2008) $29,891
Cost-Saving TipsCost-Saving Tips
Law books are not an investment, but a cost of practicing law. The value of used law
books plummets faster (80-90% once they’re yours) than that of the typical new car (20-
25% in the first year). Yet, West urges customers to “protect your investment” by buying the latest pocket part or release to a
supplemented legal treatise. This is baseless marketing rhetoric and has no basis in reality.
Cost-Saving TipsCost-Saving Tips
Know both the cost and the supplementation cost history of any book before you buy it. Publishers will not tell you this unless you ask. Getting you on standing order is their
goal, which is why they’ll gladly discount the initial purchase 20%. They make their money
by attaching your wallet to their milking machine.
Cost-Saving TipsCost-Saving Tips
With some exceptions, treat legal treatises as monographs rather than serial
publications. Most of the value will be contained in the base text, providing you with the basic descriptive and analytical
discussion of the subject matter. While the supplements add only marginal value to the base discussion, they add substantially to
the publishers’ bottom line.
Cost-Saving TipsCost-Saving Tips
Update the information contained in legal treatises by using Shepard’s or
KeyCite, and by tracking cases, statutes and regulations in your jurisdiction and practice areas.
Chances are, the national treatise supplements will not catch the latest
changes in your jurisdiction.
Cost-Saving TipsCost-Saving Tips
Supplementation is a double-edged sword. You need to be kept up-to-date;
but the supplements to secondary sources are an extraordinarily expensive
way of accomplishing this. Imagine paying for a Shepard’s citator for every
treatise in your library.
Cost-Saving TipsCost-Saving Tips
Consider alternatives to complete sets, including abridged editions, selected
volumes in your practice area, statutory subject compilations, etc.
Cost-Saving TipsCost-Saving Tips
Share library and expenses with another firm in your building.
Cost-Saving TipsCost-Saving Tips
If your firm lacks a law librarian, assign a member of your firm to be the library
gatekeeper, with responsibility for monitoring library acquisitions and
expenditures. One of this person’s tasks should be to maintain a database of all titles in your library, conduct an annual inventory,
and determine the desired level of supplementation for each.
Cost-Saving TipsCost-Saving Tips
Amazon.com is an excellent source for new, nearly new, or used law books, including most legal monographs and
many serial tiles, often at drastic discounts.
Cost-Saving TipsCost-Saving Tips
Beware of solicitations disguised as invoices. These may or may not follow
free trial subscriptions. The tactic is based on the premise that you are more likely to renew a subscription to which you think you are already subscribing,
even though you never did so by conscious act.
Cost-Saving TipsCost-Saving Tips
Don’t become so enamored of one online legal research service that you cannot walk away when
the costs or terms become excessive. Play Westlaw and Lexis off against each other to get the best content and rates. While Westlaw may have a bit of an edge in user preference surveys (much of it a result of heavy marketing at law
schools), both services provide a level of sophistication to satisfy the most discriminating
practitioner.
Cost-Saving TipsCost-Saving Tips
Take advantage of free Lexis or Westlaw research attorneys when conducting
complicated searches in their respective databases.
Cost-Saving TipsCost-Saving Tips
If you are in a firm too large for a Westlaw PRO or Lexis Total Advantage plan, be aware that careless, or higher levels of, online usage
will result in more expensive terms when your current “flat rate” contract expires. Cost
effective searching is always a good idea under such circumstances.
Cost-Saving TipsCost-Saving Tips
Have a strict firm policy of directing all publishers’ telemarketers to the library
staff or contact person. Never volunteer attorney names to telemarketers when
asked for practitioners in particular practice areas.
Cost-Saving TipsCost-Saving Tips
With the steeply rising costs of print reporters and advance sheets, discontinue subscriptions to hardcopy court reports in favor or online access if you have not already done so. Get used to obtaining your state appellate court decisions off your state court web site, or by periodically doing a date-restricted search on Casemaker or VersusLaw.
Cost-Saving TipsCost-Saving Tips
When contemplating the purchase of a legal treatise or reference book, consult the Legal Information Buyer’s Guide & Reference Manual for the history of its supplementation costs and the comparative costs of competing works.
Legal Information Buyer’s Guide & Legal Information Buyer’s Guide & Reference Manual 2009Reference Manual 2009
Cost and supplementation cost data (chapter 27):
Fletcher Corporation Forms Annotated. 4th ed. By Lenore M. Zajdel. St. Paul, MN: West (Clark Boardman Callaghan), 1980-date. 33 vols. Annual pocket parts and periodic revised volumes.Cost: $2,705; supplementation: 1993: $429; 1994: $528; 1995: $511; 1996: $519; 1997: $599.70; 1998: $750; 1999: $918.40; 2000: $1,097; 2001: $1,302; 2002: $1,052; 2003: $1,152.50; 2004: $1,291; 2005: $2,531.50; 2006: $2,027.50; 2007: $1,575; 2008: $2,909; CD-ROM: $2,220 per year. May also possibly be purchased in tandem with Fletcher Corporate CD-ROM (LawLink) at discount pricing for set and all future upkeep.