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The Effect of Fee Shifting On Litigation: Evidence from a Policy Innovation in Intermediate Cost Shifting

Christian Helmers (), Yassine Lefouili, Brian Love and Luke McDonagh

No 16-740, TSE Working Papers from Toulouse School of Economics (TSE)

Abstract: We study the effect of fee shifting rules on litigation. First, we build a model to study the theoretical effect of a change in cost-recovery rules on case filings, (post-filing) settlement, win rates, and plaintiffs' average litigation expenditures. We then undertake an empirical analysis of the introduction of an intermediate cost shifting rule that falls between the English and American Rules: a reform that limits the size of fee awards to successful litigants in cases decided by the Intellectual Property Enterprise Court (IPEC), one of two venues where IP cases may be filed in England and Wales. Our empirical analysis takes advantage of heterogeneity among case types and compares IPEC cases with intellectual property cases litigated at the High Court of England and Wales, which was not subject to this reform. We find that patent case filings increased following the IPEC’s shift from a pure English Rule to a rule that caps costs awards. Consistent with our model's predictions, we also find evidence that smaller plaintiffs both won less often and settled more often post-reform, as well as evidence that larger plaintiffs spent less on litigation post-reform.

Keywords: Litigation; Fee Shifting; Intellectual Property; Court Reform; U; K (search for similar items in EconPapers)
JEL-codes: K41 O34 (search for similar items in EconPapers)
Date: 2016-12, Revised 2021-01
New Economics Papers: this item is included in nep-ipr and nep-law
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Journal Article: The Effect of Fee Shifting on Litigation: Evidence from a Policy Innovation in Intermediate Cost Shifting (2021) Downloads
Working Paper: The effect of fee shifting on litigation: evidence from a policy innovation in intermediate cost shifting (2021)
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