Scott Steinberg · Consultant, Analyst and Business Strategist
Competitors take each other's customers, staff and ideas every day. These cases often turn on where a particular industry draws the line, which is a question of documented convention rather than instinct. A consultant to 3000+ brands, Scott Steinberg offers needed context.
Expert reports, declarations, deposition and trial testimony on antitrust, competitor conduct, passing off and imitation, disparagement, customer and employee solicitation, comparative claims, industry practice norms, etc.
We look at different types of conduct such as what does this industry actually treat as acceptable competitive behavior, and did this cross it.
Industries differ enormously in what they treat as ordinary aggression, and conduct that would be unremarkable in one market reads as outrageous in another.
Testimony establishes what participants in that specific market routinely did during the relevant period, which reframes most of these disputes.
Product and presentation similarity raises the question of whether a competitor borrowed category convention or deliberately built on someone else's recognition.
Research looks at what the category treats as shared design language and where the similarity exceeded it.
Statements aimed at a competitor's product or business travel through trade channels, sales conversations and comparison material where the audience is small but decisive.
Opinions touch on areas like what competitive claims are customary in that channel and what a statement of that kind does to purchasing behavior.
Taking a competitor's customers is the point of competition, and disputes generally turn on method: what information was used and what was represented during the approach.
Testimony addresses solicitation convention in the industry and where the approach at issue departed from it.
Hiring from competitors is routine; coordinated departures that hollow out a team are different, and the distinction is usually visible in timing and sequencing.
Reports look at recruitment norms in the sector and what the pattern of departures shows about coordination.
Direct competitor comparison is permitted and common, and disputes examine test conditions, selection of comparison points and whether the framing was representative.
Consulting hits on comparative practice convention in the category and whether the presentation fairly reflected what was measured.
Every company studies competitors, and the question is method: public research and product purchase sit on one side, pretext and induced disclosure on the other.
Work product reviews areas like competitive intelligence convention and where the gathering at issue crossed from research into something else.
Claims that a competitor built on someone else's investment require establishing what the investment actually was and what the competitor could have developed independently.
Testimony addresses what building an equivalent would have required and whether the advantage claimed reflects genuine appropriation.
Establishing competitive convention requires evidence about what other participants in the market routinely do, which is assembled rather than requested. Any party may instruct.
Written opinions on areas like competitive convention in the industry and how the conduct at issue compared.
Testimony on what competitors in that market routinely do, which juries frequently may not see from the outside.
Responsive analysis of norm assertions and characterizations of what constitutes ordinary competitive conduct.
Non-testifying assembly of competitive practice evidence and discovery scoping for market conduct records.
Scott Steinberg is an analyst, consultant and business trends expert with over 28 years of experience providing management and strategic consulting services to more than 3,000 businesses and brands ranging from startups to government agencies and Fortune 500 firms. He has helped design myriad bestselling products as seen in over 1 billion homes.
He has testified in sample areas including intellectual property — copyrights, trademarks and patents — patent infringement, marketing, branding, video games, mobile applications, consumer product development, and the growth and monetization of online distribution platforms.
He is the author of over 30 books and has published more than five thousand articles addressing areas including but not limited to marketing, technology, leadership, innovation, advertising, digital transformation, data privacy and social networks. He appears regularly on ABC, CBS, CNN and NBC, and has led seminars and training programs for organizations including Wells Fargo, the PGA Tour, Century 21, Ford, Dell and Procter & Gamble.
His consulting work has been broadly recognized. He has served as a thought leader for the American Bar Association and Corporate Counsel magazine, and has received honors from the International Association for Scholastic Excellence, Fortune, and the 21st Century Icon Awards, among others.
Areas like what the industry in question actually treats as ordinary competitive behavior, and whether the conduct at issue departed from it. Things like imitation, disparagement, customer and employee solicitation, comparative claims and competitive intelligence methods.
Because sectors differ dramatically in what they consider normal aggression. Direct competitor comparison, aggressive recruitment and rapid imitation are routine in some markets and exceptional in others. Without that baseline a jury judges the conduct against general instinct rather than against the market it occurred in.
Antitrust addresses conduct as a competition-law question involving market power, foreclosure and consumer harm. Other inquiries look at conduct between competitors as a matter of commercial convention, which arises whether or not market power is in play. Matters raising both can use each.
Certain SMEs might say method rather than result. Taking customers, hiring staff and studying competitors can be legitimate, depending on the circumstances. Disputes generally concentrate on what information was used, what was represented during an approach, and whether conduct was coordinated in ways the industry would not recognize as normal.
Yes. Consulting projects and engagements hit on sample topics like competitive practice research, assessment of how the conduct compares to market convention, discovery scoping and critique of an opposing expert's characterization of industry norms.
Initial conversations about scope, timing and conflicts are without charge. Helpful detail includes the industry, the conduct alleged and the period involved, plus any expert disclosure deadline already set.
A conflicts check is run before any substantive discussion. An initial note listing the party names and a one-line description of the dispute is enough to start; please hold privileged or confidential material until the check clears.