Photo of Keith  Waehrer, PhD

Selected Expertise

  • Aftermarket abuse
  • Auctions
  • Competitive effects
  • Exclusionary conduct
  • Horizontal and vertical restraints
  • Intellectual property
  • Joint ventures
  • Market definition
  • Market power
  • Mergers and acquisitions

Selected Industries

  • Agriculture
  • Airlines
  • Biotechnology
  • Chemicals
  • Digital music
  • Financial services
  • Internet-related services
  • Payment cards
  • Pharmaceuticals
  • Telecommunications

Keith Waehrer, PhD

Profile
News
Insight
Events

Keith Waehrer specializes in mergers, monopolization claims, and calculations of reasonable royalties and antitrust damages. He has served as a testifying expert, submitted expert reports, and testified at deposition and at trial. Dr. Waehrer is also an expert in the analysis of competitive effects in auction markets and has written highly regarded papers on the subject.

As a visiting partner at E.CA Economics in Berlin, Germany, Dr. Waehrer also worked on a number of significant matters before the EC and numerous national competition authorities in Europe.

Prior to joining Bates White, Dr. Waehrer was a research economist with the Antitrust Division of the US DOJ, where he provided economic analysis in connection with numerous merger investigations and civil and criminal antitrust matters. Dr. Waehrer served as an economist with the Bureau of Labor Statistics, Economist Insight, and Bonneville Power Administration. His academic career includes teaching posts at the University of Maryland, Georgetown University, Johns Hopkins University, Brigham Young University, and Rutgers University.

Selected Experience

  • Assisted the Competition Bureau of Canada in its review of the Iron Mountain/Recall merger. Iron Mountain and Recall are suppliers of records management services in Canada and a number of other countries. The merger was not challenged by the Competition Bureau after the merging parties agreed to divest assets in six Canadian cities.
  • On behalf of the Department of Justice, prepared as a testifying expert regarding the proposed mergers of Caraustar and Newark, which manufacture uncoated recycled boxboard along with a number of downstream products; Flakeboard and Sierra Pine, which manufacture medium density fiberboard and particleboard; and Stamps.com and Endicia, which provide computer-based systems for buying printable United States postage. 
  • Provided trial testimony on behalf of Pandora in its litigation with Broadcast Music, Inc. (BMI) regarding the royalty rate for Pandora’s use of music licensed by BMI (Broad. Music, Inc. v. Pandora Media, Inc.). Opined on what range of rates would be reasonable for Pandora’s blanket license to perform works in the BMI repertory; assessed an appropriate advertising sales cost deduction for a Pandora–BMI license; and proposed a method to adjust the royalties that Pandora would pay to BMI when compositions are either directly licensed or withdrawn from BMI.
  • Led the Bates White team providing support for Dr. Joseph Farrell, who provided expert analysis to the FCC on behalf of Cogent Communications regarding the proposed merger of Comcast and Time Warner Cable. The submission included an analysis of the declarations submitted by the merging parties’ economic experts and an assessment of the competitive effects of the merger on the provision of Internet access for both the consumer and Internet content provider sides of the market.
  • Submitted testimony to the Copyright Royalty Board on behalf of National Public Radio, Inc. and the Corporation for Public Broadcasting as part of the Webcasters IV proceeding to determine webcaster royalties for the digital performance rights in sound recordings and ephemeral recordings.
  • In the matter In re Petition of Pandora Media, Inc., led the Bates White team providing support for the expert analyses, reports, and testimony of Dr. Leslie Marx on behalf of Pandora in its litigation with the American Society of Composers, Authors, and Publishers (ASCAP). Assisted the trial team with the cross-examination of ASCAP’s expert and other witnesses. The court ultimately adopted key aspects of Dr. Marx’s analysis of ASCAP’s proposed benchmarks and set a rate within the range of rates proposed by Dr. Marx.
  • Led the Bates White support team for experts in the matter Monsanto v. DuPont. Provided liability and damages analysis for DuPont in its litigation against Monsanto regarding alleged antitrust and intellectual property violations. Monsanto originally sued DuPont and its Pioneer subsidiary for infringing Monsanto’s Roundup Ready soybean patent. DuPont countersued, accusing Monsanto of antitrust violations and of fraudulently obtaining the patent. The parties agreed to dismiss antitrust and patent lawsuits filed against each other as part of a broader licensing agreement reached between the two agricultural biotechnology giants.
  • On behalf of Express Scripts in connection with its $29 billion acquisition of Medco Health Solutions, conducted both an upward pricing pressure analysis and a merger simulation to predict the competitive effect of the merger in order to demonstrate that the proposed transaction would not have an anticompetitive effect. Assisted with the presentation of these analyses to the FTC. The FTC unconditionally approved the merger after an eight-month investigation, finding no likelihood of future unilateral effects, coordinated effects, or exercise of monopsony power resulting from the merger.
  • Testified before the South African Competition Tribunal on unilateral and coordinated effects of the proposed Pioneer Hi-Bred–Pannar Seed merger, along with the effects of efficiencies on postmerger pricing. Before approval by the Competition Appeal Court, the South African Competition Commission and Competition Tribunal sought to block the merger. In a decision upheld by the Supreme Court of Appeal, the Competition Appeal Court ultimately agreed with the merging parties’ assessment that the transaction would strengthen competition by promoting greater innovation in the development of new corn seed products. The Court also agreed with Bates White’s expert’s opinion that the merger was unlikely to result in coordinated effects, and credited results from the expert’s merger simulation analysis, as well as a calculation balancing price effects and dynamic efficiencies arising from the merger, to support its conclusion.
  • Served as testifying expert on behalf of Allflex in Allflex v. Avid Identification Systems. Submitted a declaration and expert report on monopoly power, market definition, and antitrust harm.
  • Served as testifying expert in The Crystal Import Corporation v. Avid Identification Systems, an exclusionary conduct matter regarding radio frequency identification microchips. Performed economic analysis to define markets, assess market power, and evaluate the impact of the conduct at issue.

Education

PhD, Economics, Rutgers University

MA, Economics, Rutgers University

BA, Economics, Trinity College