Case 3:14-cv-03264-JD Document 1000 Filed 12/23/15 Page 1 of 39
`
`DEFS. EX. 3
`
`Defendants’ Appendix C
`Correction of Plaintiffs’
`Mischaracterizations
`
`REDACTED
`
`

`
`Case 3:14-cv-03264-JD Document 1000 Filed 12/23/15 Page 2 of 39
`
`DEFENDANTS’ APPENDIX C:
`Correction of Plaintiffs’ Mischaracterizations1
`
`ELNA
`
`Plaintiffs’ Mischaracterization
`
`Correction of Plaintiffs’ Mischaracterization
`
`“ELNA data includes the customer name but not
`the location or address. App. A.2
`DPPs have submitted transaction data questions to
`ELNA about these issues but ELNA has not yet
`provided means to identify bill-to addresses for this
`data.”
`Saveri 56(d) Decl. [Dkt. No. 970-5], at ¶ 8(a).
`
`“ELNA data includes the customer name but not
`the location or address. App. A.2
`DPPs have submitted transaction data questions to
`ELNA about these issues but ELNA has not yet
`provided means to identify bill-to addresses for this
`data.”
`Saveri 56(d) Decl. [Dkt. No. 970-5], at ¶ 11(a).
`
`“Kenichiro Murata submitted a declaration on
`behalf of ELNA Co., Ltd. and ELNA America,
`Inc. . . . ELNA, however, did not produce Mr.
`Murata for deposition. Instead, Kent Sterrett
`testified on behalf of ELNA.”
`DPP App. B [Dkt. No. 967-8], at 31.
`
`DPP’s assert “lack of personal knowledge” as a
`reason to strike Mr. Murata’s declaration. “Mr.
`Sterrett did not prepare for his deposition with
`declarant Murata; nor had he ever met or spoken
`with declarant Murata.”
`DPP App. B [Dkt. No. 967-8], at 31 (citing Sterrett
`Dep. at 31:24-32:5).
`
`DPPs did not submit transactional data questions
`regarding identifying bill-to addresses until
`12/4/15. See Defs. App. A.
`
`DPPs did not submit transactional data questions
`regarding identifying bill-to addresses until
`12/4/15. See Defs. App. A.
`
`Mr. Murata is based in Japan, while Mr. Sterrett is
`based in the United States. To avoid burdening a
`small corporation by having Mr. Murata come to
`the United States, ELNA offered to make Mr.
`Sterrett, an equally knowledgeable 30(b)(6)
`witness, available to Plaintiffs. Plaintiffs never
`objected to ELNA’s designation of Mr. Sterrett as
`the deponent or challenged the scope of his
`knowledge or preparation. Further, Plaintiffs did
`not hold open the deposition or request an
`additional deponent.
`Mr. Sterrett’s relationship or communications with
`with Mr. Murata are irrelevant. Mr. Sterrett is and
`was knowledgeable about the contents of the
`declaration, and was thus qualified to testify.
`See Sterrett Dep., Defs. Ex. 4, at 31:1-7; 31:11-16;
`33:11-14; 34:2-8; 34:11-13; 34:18-20.
`
`For example, he testified as to:
`
`1 By submitting this Appendix, Defendants do not indicate their agreement to any other of Plaintiffs’ characterizations.
`
`1
`
`

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`Case 3:14-cv-03264-JD Document 1000 Filed 12/23/15 Page 3 of 39
`
`ELNA’s products, Sterrett Dep., Defs. Ex. 4, at
`35:5-14 (testifying that ELNA sells aluminum
`electrolytic capacitors, solid conductive polymer
`electrolytic capacitors, electric double-layered
`capacitors, and solid tantalum capacitors);
`
`ELNA’s manufacturing capabilities and supply
`chain, Sterrett Dep., Defs. Ex. 4, at 38:20-39:13
`(testifying that capacitors for U.S customers were
`manufactured at fabilities in Japan, Thailand,
`China, and Malaysia); id. at 43:16-44:24
`(testifying that ELNA America is responsible for
`sales to North and South America and that all
`capacitors sold in the United States are delivered
`to ELNA America’s single warehouse in Carson,
`CA before being shipped to their final destination);
`
`ELNA’s sales in the United States, Sterrett Dep.,
`Defs. Ex. 4, at 48:24-49:13 (testifying that “100%
`or ELNA’s sales of capacitors in the United States
`were made by ELNA America” and that ELNA
`Japan has no sales to customers in the United
`States);
`
`ELNA’s pricing for distributors, Sterrett Dep.,
`Defs. Ex. 4, at 59:5-11 (“It simply is an Excel
`spreadsheet that uses annually provided product
`cost information as the basis for a fixed calculation
`for all distributors”); and
`
`ELNA’s transactional data, Sterrett Dep., Defs.
`Ex. 4, at 79:14-15 (“There is one system, and I
`have access to that for ELNA America sales.”); id.
`at 80:19-20 (“The system contains data and
`information that I can download in a flat file.”); id.
`at 80:24-81:3 (“Our customer service personnel
`input customer purchase orders, which contain
`ship to, bill to, customer, part number, quantity,
`into that system on an ongoing basis.”).
`
`2
`
`

`
`Case 3:14-cv-03264-JD Document 1000 Filed 12/23/15 Page 4 of 39
`
`“Mr. Sterrett further testified that declarant Murata
`‘primarily’ serves as Internal Chief Counsel; that is
`he is a lawyer. . . . Mr. Sterrett had ‘no idea’
`whether declarant Murata has any sales pricing, or
`marketing duties.”
`DPP App. B [Dkt. No. 967-8], at 31 (citing Sterrett
`Dep., at 32:6-13; 36:14-36:17).
`
`Mr. Sterrett’s understanding of Mr. Murata’s title
`or responsibilities is irrelevant to the issue of
`whether Mr. Sterrett could testify on the topics
`included in the declaration.
`
`“Mr. Sterrett testified that he has been ELNA
`America’s sole employee since 2009, but that he
`provided no input concerning Murata’s declaration.
`He was also unaware whether any ELNA
`employees contributed information to the
`declaration.”
`DPP App. B [Dkt. No. 967-8], at 31 (citing Sterrett
`Dep. at 52:2-23).
`
`As he testified, Mr. Sterrett reviewed the
`declaration and documents relating to the topics
`addressed in the declaration, including
`transactional sales data and customer information.
`He was more than adequately prepared to address
`the topics in the deposition.
`See Sterrett Dep., Defs. Ex. 4, at 31:1-7; 31:11-16;
`33:11-14; 34:2-8; 34:11-13; 34:18-20.
`
`“Mr. Sterrett said that he is ELNA America’s only
`employee (and has been since 2009), and that he
`works out of his home—not the office identified in
`the declaration. He testified that ELNA America’s
`third-party contracted accounting firm works at the
`physical location identified in the declaration.”
`DPP App. B [Dkt. No. 967-8], at 31-32 (citing
`Sterrett Dep. at 44-48, 50:8-21:17).
`
`Contrary to Plaintiffs’ assertion, Mr. Sterrett did
`not identify an error in Mr. Murata’s declaration.
`The Gardena California address is the official
`address of the legal entity as registered with the
`California secretary of state. Mr. Sterrett himself
`works out of his own home in Georgia, but ELNA
`business activities occur at the Gardena, California
`address.
`
`3
`
`

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`Case 3:14-cv-03264-JD Document 1000 Filed 12/23/15 Page 5 of 39
`
`Hitachi Chemical Co. America, Ltd., Hitachi Chemical Co., Ltd., and Hitachi AIC Inc.
`
`Plaintiffs’ Mischaracterization
`
`Correction of Plaintiffs’ Mischaracterization
`
`“Defendant Hitachi Chemical Co. America, Ltd.
`(“Hitachi America”), however, did not offer Mr.
`Masuda ... in time for Plaintiffs to take their
`depositions in advance of preparing their
`Opposition briefing.”
`DPPs’ Supp. Br. [Dkt. No. 981-5], at 1.
`
`“Hitachi refused DPPs’ request to depose Hitachi
`declarant Hironori Masuda in time to include his
`testimony in the opposition to Defendants’
`motion . . . .”
`Saveri 56(d) Decl. [Dkt. No. 970-5], at ¶ 17(b).
`
`DPPs assert “lack of personal knowledge” as their
`reason for opposing Mr. Masuda’s declaration.
`DPP Supp. App. B [Dkt. No. 981-8], at 1.
`
`Plaintiffs were at least partially responsible for the
`date of the deposition and were in no way
`prejudiced. Shortly after the parties agreed to the
`scope of depositions based on the FTAIA
`declarations, Hitachi Chemical informed Plaintiffs
`on October 20, 2015 that a deposition of Mr.
`Hironori Masuda (declarant on behalf of Hitachi
`Chemical Co. America, Ltd.) did not appear to be
`warranted because (1) Plaintiffs were already
`scheduled to depose Hitachi Chemical’s declarant
`on behalf of its Japanese entities (Mr. Hiroshi
`Fujisaku), and (2) Mr. Masuda’s declaration raised
`no issues of fact material to resolving the FTAIA
`motion for summary judgment. Plaintiffs did not
`respond for over two weeks. On November 6,
`2015, DPPs’ counsel finally responded, but only to
`say they would defer a decision regarding Mr.
`Masuda’s deposition until after Mr. Fujisaku was
`deposed on November 10, 2015. Then, three days
`after Mr. Fujisaku’s deposition, DPPs’ counsel
`informed Hitachi Chemical that they wanted to
`take Mr. Masuda’s deposition. Due to Mr.
`Masuda’s previously-arranged travel schedule, the
`earliest day that he was available for deposition
`was November 23, 2015. Regardless, Plaintiffs
`never objected to this timing (and have never
`raised this issue in any meet and confer), and in
`addition, neither IPPs nor Flextronics attended Mr.
`Masuda’s deposition at all.
`Mr. Hironori Masuda confirmed that before
`signing the declaration filed in support of the
`FTAIA Motions, he discussed the topics contained
`in the declaration with his attorneys. Masuda
`Dep., Defs. Ex. 6, at 26:20-27:9. The contents of
`his declaration were derived from Hitachi
`Chemical Co. America, Ltd.’s (“HCA”)
`transactional sales data records, which Mr.
`Masuda reviewed again before signing his
`declaration. Id. at 27:17-23. Moreover, Mr.
`Masuda has been involved in capacitor sales for
`Hitachi since 1984, id. at 18:14-21; is in charge of
`Hitachi America’s capacitors division and the
`
`4
`
`

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`Case 3:14-cv-03264-JD Document 1000 Filed 12/23/15 Page 6 of 39
`
`sales staff, id. at 22:5-25; and is knowledgeable
`about how HCA purchases and sells capacitors. Id.
`at 31:18-25, 38:11-23. Plaintiffs did not attempt to
`hold open the deposition, nor did Plaintiffs request
`another witness to be deposed in connection with
`HCA’s designation of Mr. Masuda as the
`declarant/deponent.
`
`Plaintiffs supplement their opposition to the
`FTAIA motion with limited information
`selectively pulled from the Masuda
`deposition. None of this information relates to the
`FTAIA motion; it relates to how Hitachi America
`priced its own capacitors (which are domestic
`sales and not subject to the motion).
`
`The term “transfer price” is plaintiffs’ term, not
`Mr. Masuda’s. Masuda Dep., Defs. Ex. 6, at
`50:18. Mr. Masuda clearly described how Hitachi
`America “purchases” capacitors from Hitachi
`Japan; it is not an internal transfer. Id. at 31:18-
`25; 50:13-25.
`
`Mr. Masuda never testified that Hitachi America
`“cannot” price below a “transfer price”, as
`plaintiffs state. Cf. id. at 58:1-23 (discussing
`target profit margins but not stating that they
`Hitachi America cannot price below its acquisition
`cost). Mr. Masuda testified (and plaintiffs even
`acknowledged in their questioning) that Hitachi
`America sets its own price; it is not instructed by
`Hitachi Japan on the price to charge its customers,
`nor does Hitachi Japan recommend the price that
`Hitachi America should charge. Plaintiffs attempt
`to imply that Hitachi Japan controls Hitachi
`America’s pricing by stating Hitachi America
`“cannot” price below a “transfer price,” but this is
`not supported by the evidence. Id. at 58:24-59:3.
`
`Mr. Fujisaku submitted a declaration on behalf of
`Hitachi Chemical Co., Ltd. and Hitachi AIC
`(“Hitachi Japan”) because he was most
`knowledgeable about Hitachi Japan’s overall
`capacitor business. Fujisaku Dep., Defs. Ex. 5, at
`56:9-12. The contents of his declaration were
`derived from transactional sales data records, and
`
`5
`
`“Mr. Masuda also testified that Hitachi Japan
`typically sells capacitors to its U.S. subsidiary,
`Hitachi America, at a transfer price below which
`Hitachi America cannot price its capacitors to U.S.
`customers.”
`DPPs’ Supp. Br. [Dkt. No. 981-5], at 2 (citing DPP
`Supp. App. E).
`
`DPPs assert “Lack of personal knowledge” as their
`reason for opposing Mr. Fujisaku’s declaration.
`DPP App. B [Dkt. No. 967-8], at 22.
`
`

`
`Case 3:14-cv-03264-JD Document 1000 Filed 12/23/15 Page 7 of 39
`
`Mr. Fujisaku oversaw the process of collecting
`Hitachi Japan’s transactional sales data and
`reviewed it again in preparation for his
`declaration. Id. at 49:18-50:19, 54:3-6. Mr.
`Fujisaku was well-prepared to testify about
`Hitachi Japan’s direct sales to U.S. customers. See,
`e.g., id. 101:8-12. Plaintiffs did not attempt to
`hold open the deposition, nor did Plaintiffs request
`another witness to be deposed in connection with
`Hitachi Japan’s designation of Mr. Fujisaku as the
`declarant/deponent.
`
`6
`
`

`
`Case 3:14-cv-03264-JD Document 1000 Filed 12/23/15 Page 8 of 39
`
`Matsuo
`
`Plaintiffs’ Mischaracterization
`
`Correction of Plaintiffs’ Mischaracterization
`
`DPPs assert “Lack of personal knowledge” for the
`“declaration in general” as a reason for opposing
`Mr. Koga’s declaration.
`DPP App. B [Dkt. No. 967-8], at 8; Saveri 56(d)
`Decl. [Dkt. No. 970-5], at ¶ 6.
`
`Matsuo presented Mr. Koga as a 30(b)(6) witness
`who appropriately relied on his personal
`knowledge and/or Matsuo’s business records and
`Matsuo employees who were knowledgeable about
`the deposition topics.
`
`“I am the Manager of the Overseas Sales
`Department of Matsuo Electric Co., Ltd.
`(“MATSUO”), and am duly authorized to execute
`this Declaration on its behalf. The facts set forth
`below are based on my personal knowledge, my
`review of MATSUO’s business records kept in the
`ordinary course of MATSUO’s regularly
`conducted business activities, or both. If called as
`a witness, I could and would testify to the facts set
`out below.”
`Koga Decl. [Dkt. No. 915-13], at ¶ 1.
`
`“Q. Are you responsible for all of Matsuo’s sales
`of capacitors outside Japan?
`A. That is correct.”
`Koga Dep., Defs. Ex. 8, at 23:16-18.
`
`“Q. Are you appearing on behalf of a certain
`corporate entity?
`A. Yes, I am here as a representative of Matsuo
`Electric Company Limited.”
`Koga Dep., Defs. Ex. 8, at 12:14-17; see also id. at
`80:14-24.
`
`“Q. Who assisted you in the preparation of your
`declaration?
`A. My attorneys, as well as Matsuo employees
`that were appropriate to be involved in this
`preparation.
`Q. Which Matsuo employees helped you out?
`A. Mr. Amitani, A-M-I-T-A-N-I, who is a
`member of the board. Mr. Yamaji, Y-A-M-A-J-I.”
`Koga Dep., Defs. Ex. 8, at 16:9-16; see also id. at
`78:16-79:24.
`
`7
`
`

`
`Case 3:14-cv-03264-JD Document 1000 Filed 12/23/15 Page 9 of 39
`
`DPPs assert “Lack of personal knowledge” for the
`sales figures, billed to or shipped to addresses,
`and country code data as a reason for opposing
`Mr. Koga’s declaration.
`DPP App. B [Dkt. No. 967-8], at 8; Saveri 56(d)
`Decl. [Dkt. No. 970-5], at ¶ 6.
`
`Mr. Koga either personally reviewed the data or
`relied on the corporate officer and/or department
`that was responsible for Matsuo’s transactional
`data that it relies upon in the ordinary course of its
`business.
`
`“Q. Did you personally review the data that’s
`referenced in your declaration?
`A. No.
`Q. Why not?
`A. It is not my role to review the actual data.
`Q. Did you rely on someone else who you
`understood reviewed the data?
`A. I trusted the data itself.
`Q. How did you know that the data was correct if
`you didn’t review it?
`A. As explained earlier, the responsibility of
`overseeing and managing this data is with the
`corporate administration section, who is basically
`responsible for generating, managing all company
`official data, including those used in public
`reporting functions. Therefore, to -- if we cannot
`trust data generated by this section, we would not
`be able to operate as a company, and therefore it is
`given that we trust that data.”
`Koga Dep., Defs. Ex. 8, at 60:11-61:12.
`
`“Q. Did you personally review the “bill to” or
`“ship to” information that’s referenced in your
`declaration?
`A. I did check it, yes.”
`Koga Dep., Defs. Ex. 8, at 62:7-10.
`
`“Matsuo has not provided ship-to address
`information in its data.”
`Saveri Rule 56(d) Decl. [Dkt. No. 970-5], at ¶
`11(c); DPP App. A at 2.
`
`“Matsuo relied only on “bill to” information and
`ignored “ship to” information in
`calculating U.S. sales.”
`Saveri 56(d) Decl. [Dkt. No. 970-5], at ¶ 18(b)
`(citing DPP App. A).
`
`“Matsuo defined commerce using a country code
`but Declarant did not know what the country code
`
`Matsuo’s “ship to” and “bill to” data are the same.
`Therefore, there is no separate “ship to”
`information that has not been produced, nor did
`Matsuo ignore “ship to” data in calculating its US
`sales. Because the “ship to” and “bill to” data are
`the same, Mr. Koga appropriately responded that
`he did not know what the country code would be
`based on counsel’s incorrect hypothetical about
`inconsistent “ship to” and “bill to” addresses.
`
`“Q. Can you tell me how you determined whether
`a customer or distributor was located in the United
`States.
`
`8
`
`

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`Case 3:14-cv-03264-JD Document 1000 Filed 12/23/15 Page 10 of 39
`
`would be if the “bill to” address and “ship to”
`address were different.”
`DPP Br. [Dkt. No. 967-5] 8, n.15.
`
`A. From the sales data residing in our headquarter
`or server.
`Q. And what particular field of that data did you
`examine to determine whether a customer or
`distributor was located in the United States?
`A. Within what we call the user master dataset, I
`looked at what we call the country code.
`Q. And is that a country code for the “bill to”
`address of the customer? The “ship to” address of
`the customer? The headquarters? Or something
`else?
`A. “Bill to” and “ship to.”
`Q. Is it “bill to” and “ship to” or “bill to” or “ship
`to”?
`A. So they’re the same, so it’s “bill to” and “ship
`to.”
`Q For purposes of your declaration, if you had a
`“bill to” address in the United States and a
`“ship to” address in China, would that have been
`characterized as a U.S. customer?
`MS. LAU: Objection to form.
`THE WITNESS: As far as I know, there are no
`such cases.
`Q. Are you aware of any such case in which the
`“bill to” address and the “ship to” address were
`different for any customer of Matsuo?
`A. As far as I know, there are no such cases.”
`Koga Dep., Defs. Ex. 8, at 50:18-52:12.
`
`“Q. Were customers’ “bill to” and “ship to”
`information tracked separately at Matsuo?
`A. No.”
`Koga Dep., Defs. Ex. 8, at 58:20-22.
`
`“Q. So the address that’s in the user master file
`for each customer, is that the shipping address or
`the billing address for that customer?
`A. As mentioned earlier, ultimately, the two are
`the same, so it would be the “ship to” and the “bill
`to” address.”
`Koga Dep., Defs. Ex. 8, at 74:25-75:5.
`
`9
`
`

`
`Case 3:14-cv-03264-JD Document 1000 Filed 12/23/15 Page 11 of 39
`
`“Some Defendants, however, have still not yet
`produced any sales transactional data of their U.S.
`subsidiaries (e.g., Matsuo).”
`Saveri 56(d) Decl. [Dkt. No. 970-5], at ¶ 5.
`
`“Matsuo used only the internal transfer price for
`intercompany sales to its subsidiaries to calculate
`U.S. sales. Additionally, Matsuo omitted from its
`transactional data sales from its U.S. subsidiary to
`U.S. customers.”
`Saveri 56(d) Decl. [Dkt. No. 970-5], at ¶ 19(a)
`(citing DPP App. A).
`
`Matsuo’s U.S. subsidiary, Matsuo Electronics of
`America, Inc. (“MEA”), was dissolved in 2009
`and is not a party to this lawsuit.
`Koga Dep., Defs. Ex. 8, at 23:19-25:11, 12:14-20.
`
`Matsuo has produced the transactional data within
`its custody and control regarding its sales to MEA.
`
`Q Down in paragraph 11, you also refer to
`Matsuo capacitor sales in 2001 to 2014. Do these
`figures include Matsuo and its subsidiaries?
`A I believe it’s Matsuo only.
`Q So it would not include MEA?
`A It means it does not include sales from MEA.
`Q Does it include sales to MEA?
`A Yes, I believe it does.
`Koga Dep., Defs. Ex. 8, at 65:9-17.
`
`10
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`

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`Case 3:14-cv-03264-JD Document 1000 Filed 12/23/15 Page 12 of 39
`
`NEC Tokin
`
`Plaintiffs’ Mischaracterization
`
`Correction of Plaintiffs’ Mischaracterization
`
`Plaintiffs cite the Ando testimony to contend that
`NEC TOKIN charges customers “such as IBM” the
`same pricing around the globe.
`DPP Br. [Dkt. No. 967-5] 14, n.26; DPP App. D
`[Dkt. No. 967-12], at 2-3.
`
`DPPs cite the Ando testimony to contend that
`“NEC TOKIN can determine whether buyers are
`controlled subsidiaries of U.S.”
`DPP Br. [Dkt. No. 967-5] 14, n.25; DPP App. D
`[Dkt. No. 967-12], at 2-3.
`
`DPPs suggest that NEC TOKIN “omitted”
`transactions that were shipped to the United States
`“(based on the Methodology provided).”
`DPP App. A [Dkt. No. 967-5], at 2.
`
`Plaintiffs quote only the first part of Mr. Ando’s
`response, agreeing “in general” with the question
`asked. His full response makes clear that:
`“[I]t depends on the purchasing -- how the
`customer’s purchasing function or purchasing
`department operates. If a single purchasing
`function covers the global purchases as under one
`department or under one division, then a common
`price would be applied under that same purchasing
`agreement. But some companies have independent
`purchasing functions by region, in which case it is
`possible that the price for each region or country
`may be different.”
`DPP Ex. PD4, at 76:2-11.
`Plaintiffs do not even cite the entire question
`asked. If they had included the first part of the
`question in their excerpt, it would have read as
`follows: “So likewise when you said that NEC
`TOKIN does not generally know whether a
`particular customer is, for example, a U.S.-
`controlled subsidiary, is it fair to say that there
`were some instances in which the company does
`know that buyers are controlled subsidiaries of
`U.S.-based corporations?”
`Ando Dep., Defs. Ex. 9,at 64:23-66:1.
` NEC Tokin’s methodology summary (DPP Ex.
`PX4) states, “There are no sales to customers
`located in the U.S. identified in Country(Ship) data
`that are not already identified based on
`Country(Bill) for tantalum capacitor sales.” Thus,
`all commerce shipped to the U.S. was included in
`the calculation of U.S. sales.
`
`The deposition testimony attached and highlighted
`by DPP also makes this clear.
`DPP Ex. PD4, at 63:15-19.
`
`11
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`

`
`Case 3:14-cv-03264-JD Document 1000 Filed 12/23/15 Page 13 of 39
`
`Nichicon Corporation and Nichicon (America Corporation)
`
`Plaintiffs’ Mischaracterization
`
`Correction of Plaintiffs’ Mischaracterization
`
`DPPs suggest that Nichicon “included”
`“Transactions Shipped to addresses in the United
`States (Nichicon Japan)”
`DPP App. A [Dkt. No. 967-7], at 2.
`
`DPPs suggest that Nichicon only included
`“Transactions Billed to addresses in the United
`States (Nichicon America)
`DPP App. A [Dkt. No. 967-7], at 2.
`
`DPPs suggest that Nichicon “omitted”
`“Transactions Billed to addresses in the United
`States (Nichicon Japan)”
`DPP App. A [Dkt. No. 967-7], at 2.
`
`While Nichicon Japan’s production included
`shipping transaction data for its sales, Nichicon
`Japan made no shipments to the United States
`during the relevant time period. Yamamoto Decl.,
`Ex. C [Dkt. Nos. 915-15, 915-18]; DPP Ex. PX 31,
`Ex. 1 (“There are no sales shipped to the United
`States from Nichicon Corporation [Nichicon
`Japan].”)
`
`Nichicon also included within applicable
`commerce the small amount of sales made by its
`foreign sales subsidiaries in Singapore, Hong
`Kong, and Europe that were billed to the United
`States. DPP Ex. PX 31, at 4; Yamamoto Decl.
`[Dkt. No. 915-15], at ¶ 11; DPP Ex. PX 2, Ex. 11
`to Yamamoto Dep., at 3 (number 5).
`
`Nichicon Japan has never billed any sales to the
`United States. See DPP Ex. PX 31, at 11
`(“Nichicon Japan did not make any direct sales of
`Capacitors to customers located within the United
`States;” Yamamoto Decl. [Dkt. No. 915-15], at ¶ 6
`(“During the relevant time period Nichicon Japan
`did not sell capacitors to a customer in the United
`States.”). This commerce was not “omitted” as it
`is non-existent.
`
`DPPs suggest that Nichicon “omitted”
`“Transactions Shipped to addresses in the United
`States (Nichicon America)”
`DPP App. A [Dkt. No. 967-7], at 2.
`
`The only shipments by Nichicon America to the
`United States that are excluded were actually sold
`and billed to customers outside of the United
`States. DPP Ex. PX 31 at 4-5.
`
`“Nichicon has not supplied DPPs with bill-to-
`address information for Nichicon Japan.”
`Saveri 56(d) Decl. [Dkt. No. 970-5], at¶ 8(c).
`
`“Billing address information is not historically
`available” for Nichicon Japan. DPP Ex. PX 31, at
`5, n.1, and Ex. 3 (note 1); Yamamoto Decl., Ex. A
`[Dkt. Nos. 915-15, 915-16], at n.1. As previously
`explained to plaintiffs, Nichicon’s transaction data
`produced to plaintiffs shows that none of Nichicon
`Japan’s sales of capacitors were shipped to the
`United States Yamamoto Decl., Ex. C [Dkt. Nos.
`915-15, 915-18]; DPP Ex. PX 31, Ex. 1 (“There
`are no sales shipped to the United States from
`
`12
`
`

`
`Case 3:14-cv-03264-JD Document 1000 Filed 12/23/15 Page 14 of 39
`
`Nichicon Corporation [Nichicon Japan].”).
`Nichicon was also able to determine that Nichicon
`made no sales to the United States because
`Nichicon’s sales transactions contained the
`customer’s country in the customer address field
`of the transaction data or contained a code
`indicating a sale to a domestic customer located in
`Japan. In addition, Nichicon Japan’s general
`practice is to include the invoice with the shipment
`of the product so the shipping address is also the
`billing address. Nichicon Japan has never billed
`any sales to the United States. See DPP Ex. PX
`31, at 11 (“Nichicon Japan did not make any direct
`sales of Capacitors to customers located within the
`United States;” Yamamoto Decl. [Dkt. No. 915-
`15], at ¶ 6 (“During the relevant time period
`Nichicon Japan did not sell capacitors to a
`customer in the United States.”).
`
`Neither the cited deposition testimony nor any
`other testimony refers to Nichicon U.S.A., or any
`Nichicon entity, participating in the alleged
`communications or events referenced in paragraph
`24 of the Declaration of Joseph Saveri.
`
`Declaration Response No. 1 – Mr. Yamamoto
`testified as a corporate representative under
`F.R.C.P. 30(b)(6) on behalf of Nichicon
`Corporation and Nichicon America. Yamamoto
`Dep., Defs. Ex. 10, at 17:12-21. His Declaration
`also explicitly states that the “information in this
`declaration is true and correct to the best of my
`present knowledge and/or is derived from
`company records and company personnel with
`knowledge of each subject.” Yamamoto Decl.
`[Dkt. No. 915-15], at ¶ 18. The information
`contained in Mr. Yamamoto’s Declaration is a
`summary of Nichicon’s general global business
`practices and sales transaction data, which
`encompasses millions of individual transactions
`from 2003-2014. Mr. Yamamoto provided
`information based on his personal knowledge
`regarding Nichicon’s business and sales practices.
`DPP Ex. PD 2, at 35:5-20, 71:25 -72:8. The sales
`transactions summarized in his Declaration, which
`were previously produced to plaintiffs, are all
`
`13
`
`DPPs claim that one of the defendants’ witnesses
`testified that he made efforts to stabilize prices
`during an auction in collusion with another
`defendant and Nichicon U.S.A.
`Saveri 56(d) Decl. [Dkt. No. 970-5], at ¶ 24 (citing
`DPP Ex. PD 8, at 113:19-121.10).
`
`DPPs assert lack of personal knowledge regarding
`the “[d]eclaration (Dkt. 915-15) in general.”
`DPP App. B [Dkt. No. 970-8], at 3.
`
`

`
`Case 3:14-cv-03264-JD Document 1000 Filed 12/23/15 Page 15 of 39
`
`based on Nichicon’s corporate data that it relies
`upon in the ordinary course of its business.
`Yamamoto Dep., Defs. Ex. 10, at 19:1-20:21,
`23:1-24:23, 150:13-17. Mr. Yamamoto reviews
`that “sales or revenue data as part of [his] regular
`job, but in terms of actual detailed data, there’s so
`much data that [he] would not be looking at every
`piece of data.” He relied upon the corporate
`officers responsible for maintaining Nichicon’s
`sales data to compile and summarize the
`information. Id. at 30:1-31:24, 23:1-24:23, 98:2-
`24. He verified that the numbers were correct
`based on Nichicon’s sales system. Id.at 19:11-25;
`150:13-17. He also talked with and collected
`information from a number of Nichicon Japan and
`Nichicon America executives. Id. at 118:1–119:22
`See Declaration Response No. 1, above. In
`addition, Mr. Yamamoto testified that he was
`authorized to execute his Declaration on behalf of
`Nichicon America “[b]ased on the understanding
`that I deal with these kinds of numbers [regarding
`Nichicon America’s sales] on a day-to-day basis,
`and I have a good understanding of the U.S.
`related numbers.” Yamamoto Dep., Defs. Ex. 10,
`at 146:9-12. As he testified, “in my current
`position, I oversee the overall global sales.”
`Yamamoto Dep., DPP Ex. PD 2, at 34:22-24.
`Prior to signing his declaration and the attached
`exhibits he “did check sales the figures for
`Nichicon America.” Yamamoto Dep., Defs. Ex.
`10, at 107:2-6; 30:1-22.
`See Declaration Response No. 1, above. In
`addition, Nichicon Japan has never billed any sales
`to the United States. DPP Ex. PX 31, at 11
`(“Nichicon Japan did not make any direct sales of
`Capacitors to customers located within the United
`States”). Nichicon Japan also made no shipments
`to the United States during the relevant time
`period. Yamamoto Decl., Ex. C [Dkt. Nos. 915-
`15, 915-18]; DPP Ex. PX 31, Ex. 1 (“There are no
`sales shipped to the United States from Nichicon
`Corporation [Nichicon Japan].”). See also
`Yamamoto Dep., Defs. Ex. 10, at 121:6-9 (“Q:
`And did you review the transaction data to confirm
`that? A: I did confirm that no sales of Nichicon
`Japan was made to the United States.”)
`
`DPPs assert lack of personal knowledge to
`“describe Nichicon America’s sales and business
`in the United States”
`DPP App. B [Dkt. No. 970-8], at 3.
`
`DPPs assert lack of personal knowledge regarding
`declaration “paragraphs 9-13, Exhibit A-E”, which
`summarize Nichicon’s millions of worldwide sales
`transactions from 2003-2014 and quotes testimony
`purporting to show that declarant did not personally
`review the Nichicon Japan data in preparation for
`his deposition.
`DPP App. B [Dkt. No. 970-8], at 3-5.
`
`14
`
`

`
`Case 3:14-cv-03264-JD Document 1000 Filed 12/23/15 Page 16 of 39
`
`Nippon Chemi-Con Corporation & United Chemi-Con, Inc.
`
`Plaintiffs’ Mischaracterization
`
`Correction of Plaintiffs’ Mischaracterization
`
`Mr. Nakamura’s declaration states, “NCC does not
`engage in the manufacturing, selling, or
`distribution of capacitors in the United States.
`UCC is the sole entity responsible for
`manufacturing, selling or distributing NCC
`capacitors in the United States. To the extent
`UCC resells NCC capacitors in the United States,
`UCC takes title to those capacitors in Japan. The
`only exception is the occasion where, due to tight
`delivery due dates or urgent customer needs and
`lack of inventory at UCC, NCC ships products
`sold by UCC directly to UCC customers located in
`the U.S. In these situations, however, the sales are
`invoiced by UCC and are not included in NCC’s
`transactional data. No NCC subsidiary other than
`UCC sold or manufactured capacitors in the U.S.
`during the relevant time period. All sales of NCC-
`branded capacitors in the United States are made
`by UCC.”
`Nakamura Decl. [Dkt. No. 915-21], at ¶ 8.
`
`“Q: Does NCC have any United States customers?
`A: There is no direct customers – customers to
`whom we – NCC sell directly. If I may add, we
`sell to the UCC – Japan NCC sells to UCC.”
`Nakamura Dep., Defs. Ex.11, at 33:22-25.
`
`“Q: Do you know if this – between 500 and 750
`customers includes U.S. customers?
`A: I think there is no customer to which – to whom
`we sell directly in this number. As I said earlier,
`UCC is not included.”
`Nakamura Dep., Defs. Ex.11, at 35:24-36:3.
`
`Larry Magoncia testified with respect to drop
`shipments, “We will give the parent company
`instructions to say, hey, we got this order from
`Bose, please ship the products that were produced
`from your factory to Bose in Singapore rather than
`shipping it directly to Buena Park, California, and
`having us reship it from Buena Park, California, to
`Singapore.” Magoncia Dep., Defs. Ex.19, at
`
`DPPs assert that NCC “has not provided bill-to
`information for U.S. customers.”
`Saveri 56(d) Decl. [Dkt. No. 970-5], at ¶ 8(d).
`
`DPPs assert that “NCC has not provided
`transactional data identifying shipments to U.S.
`customers, even though other evidence shows
`Nippon Chemi-Con bills and ships capacitors
`directly to US customers.”
`Saveri 56(d) Decl. [Dkt. No. 970-5], at ¶ 11(d).
`
`DPPs assert that NCC “used only the internal
`transfer price for intercompany sales to its
`subsidiary United Chemi-Con to calculate U.S.
`sales.”
`Saveri 56(d) D