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Industrial relations, organizational behavior, and human resource management scholars have studied numerous aspects of internal workplace conflict resolution, ranging from the design of conflict resolution systems to the processes used for resolving conflicts to the outcomes of the systems. Scholars from these specialties, however, have paid considerably less attention to external workplace conflict resolution through litigation. This chapter analyzes certain areas of such litigation, focusing specifically on workplace conflicts involving issues of managerial and employee misclassification, independent contractor versus employee status, no-poaching agreements, and executive compensation.

Leading recent cases involving these issues are examined, with particular attention given to the question of whether the conflicts reflected therein could have been resolved internally or through alternative dispute resolution (ADR) methods rather than through litigation.

Implications of this analysis are drawn for workplace conflict resolution theory and practice. In doing so, I conclude that misclassification disputes could likely be resolved internally or through ADR rather than through litigation, but that no-poaching and executive compensation disputes could very likely not be resolved internally or through ADR.

The chapter draws on and offers an integrated analysis of particular types of workplace conflict that are typically treated separately by scholars and practitioners. These include misclassification conflicts, no poaching and labor market competition conflicts, and executive compensation conflicts. The originality and value of this chapter are to show that despite their different contexts and particular issues, the attempted resolution through litigation of these types of workplace conflicts has certain common, systematic characteristics.

The Supreme Court’s decision in Federal Trade Commission v. Actavis, Inc. is a challenge to conventional antitrust analysis. Conventional civil antitrust cases are decided by a preponderance of the evidence. This means that conduct challenged under the rule of reason is only condemned if the conduct resulted in more competitive harm in the actual world than a world without the alleged violation. Under conventional analysis, the intent of the parties also plays only a supporting role in determining whether the conduct was anticompetitive. A holder of a valid patent has a right to exclude others practicing the patented technology. And, the patent holder is not assumed to have market power because it expended resources in maintaining exclusionary rights. Actavis creates doubts about these propositions in circumstances beyond the “reverse” payment settlement of a patent suit that may have delayed an alleged infringer market entry. This chapter explores whether applying Actavis logic to antitrust litigation can result in condemnation of practices where there is little chance of an anticompetitive effect, where the patent holder likely has a valid and infringed patent, where there is little reason to believe that the patent holder has market power, and where only one party, or no parties, to an agreement have an anticompetitive intent. This chapter also investigates whether Actavis creates new problems with standing analysis, damages calculations, and the balancing of efficiencies against anticompetitive effects. Nevertheless, the lower courts have begun to extend the logic of Actavis. This is apparent in the condemnation of no-Authorized-generic settlements.

Patent litigation consists of non-market actions that firms undertake to access intellectual property rights defined by prior legislation and enforced by the courts. Thus, patent litigation provides an interesting context in which to explore aspects of firm’s non-market strategies. In contrast with prior non-market strategy research that has largely focused on how political institutions define the rules of the game for market competition, non-market actions within patent litigation primarily seek to access and apply these broad policies to specific situations, products, or assets that matter to the firm. Furthermore, because such non-market actions are directly influenced by the firms’ market strategies, they represent a promising area for research on integrated (market and non-market) strategies as well.

The goal of this paper is to explain how generic patent strategies that firms use to support their competitive advantage in the product-market influence non-market outcomes related to the timing of patent litigation resolution. In contrast with prior research that has studied settlement in patent litigation essentially as a one-shot bargaining game, this paper seeks to explain litigation resolution as an outcome of the competing mechanisms of settlement and adjudication that operate continually during litigation. Using a large sample of patent litigations in research medicines and computers, I model the timing of patent litigation resolution in a proportional hazards framework, wherein settlement and adjudication are competing risks. The evidence found is consistent with the proposition that the speed with which patent litigation is resolved by either settlement or adjudication reflects the use of proprietary, defensive, and leveraging patent strategies by firms. These findings also help to explain unexpected and anomalous findings regarding the settlement of patent litigation reported in prior research.

Under the patent system created by Congress a patent enjoys only a rebuttable presumption of validity. The resulting probability of invalidity has an economic value. The incentive for a challenger to capture that value creates consumer benefit. In contrast, a payment by the patent holder to the challenger to recognize validity changes the congressionally mandated rebuttable presumption into a conclusive presumption. When a patent holder enlarges the reward granted to him by Congress, by paying a potential rival to confess validity, he reduces efficiency and consumer welfare and, therefore, commits a per se violation of the antitrust laws.

Litigation is part of the American policymaking playbook as diverse groups routinely turn to courts to pursue their agendas. All of this litigation raises questions about its consequences. This essay examines the literature on the political risks of litigation. It argues that this literature identifies four potential risks – crowd out, path dependence, backlash, and individualization – but offers less insight into the likelihood of these risks in practice. It ends by offering suggestions about how to advance our understanding of when litigation casts a negative political shadow in the current age of judicialization.

Patent litigation has been rising rapidly in the United States since the mid-1980s, and particularly so in high-technology industries. The strategies pursued by firms with their patents have a significant influence on their decisions to file suit, and on the outcomes within litigation. The influence of strategic motivations on settlement outcomes is studied in two illustratively different industries – computers and research medicines. Evidence is found for two types of influences – the use of patents (as isolating mechanisms) to protect valuable strategic stakes, and their “defensive” role in obtaining access to external technologies (through mutual hold-up).

Accounting firms claim that the risk of costly litigation leads to resignations from high-risk clients, and that these resignations represent an economic inefficiency. This study examines the association between resignations, dismissals and litigation in the computer industry from 1988–1995. Resignations and dismissals appear to be similar, suggesting some dismissals are implicit resignations. Results support a relationship between risk and resignations. Since some characteristics of auditor litigation risk are also characteristic of unprofitable audit engagements, the analysis incorporates the actual litigation experience of sample companies to provide insights into claims of inefficiencies surrounding the switches.

This chapter provides evidence that legislation affecting litigation risk has an influence on the financial reporting behavior of corporate management, we address the following research questions: (1) Do firms react to changes in litigation risk that result from the passage of new legislation at the federal level by adjusting their level of conservatism with regard to reporting earnings? (2) How do firms’ levels of conservatism react to changes in litigation risk over time? We analyze the level and trend in conditional conservatism to evaluate the efficacy of legislation in altering managerial reporting choice. Our examination takes place in the context of two distinct pieces of legislation intended to alter the legal environment faced by corporate managers: (1) the PSLRA (1995), and (2) Sarbanes–Oxley Act of 2002. Our findings indicate that the passage of legislation that increases litigation risk is associated with increased timeliness (conservatism) in financial reporting by managers. The increased timeliness, however, begins to subside shortly after the initial effect. While the initial effect of a reduction in litigation risk is negligible, subsequent periods exhibit declining timeliness (conservatism) in financial reporting. Our results indicate that legislative actions can be successful in altering management reporting choice through changes in legal regime. However, our results also demonstrate that the desired influence of these legislative policies may be transient.

We assess the impact of labor litigations on the ex post performance of firms. Using a sample of 44 French labor litigation cases, our empirical results confirm that the compensation amount requested by an employee has a significant and negative influence on the firm financial performance. Although that effect fades over time, it still remains significant four years after the employee has initiated the legal procedure. In addition, firms that have opted for a trial rather than a conciliation procedure improved their financial performance only in the first two years following the triggering of the litigation. That effect can be mainly explained by the long delays in the judgment of French labor courts. Our results contribute to the debate on the labor litigation impacts by assessing the financial opportunity of enacting pro-worker labor legislation dealing with employment redundancies.

The Bureau of Economics in the Federal Trade Commission has a three-part role in the Agency and the strength of its functions changed over time depending on the preferences and ideology of the FTC’s leaders, developments in the field of economics, and the tenor of the times. The over-riding current role is to provide well considered, unbiased economic advice regarding antitrust and consumer protection law enforcement cases to the legal staff and the Commission. The second role, which long ago was primary, is to provide reports on investigations of various industries to the public and public officials. This role was more recently called research or “policy R&D”. A third role is to advocate for competition and markets both domestically and internationally. As a practical matter, the provision of economic advice to the FTC and to the legal staff has required that the economists wear “two hats,” helping the legal staff investigate cases and provide evidence to support law enforcement cases while also providing advice to the legal bureaus and to the Commission on which cases to pursue (thus providing “a second set of eyes” to evaluate cases). There is sometimes a tension in those functions because building a case is not the same as evaluating a case. Economists and the Bureau of Economics have provided such services to the FTC for over 100 years proving that a sub-organization can survive while playing roles that sometimes conflict. Such a life is not, however, always easy or fun.