Case 3:14-cv-03264-JD Document 1242 Filed 07/14/16 Page 1 of 35
`
`
`Joseph R. Saveri (State Bar No. 130064)
`Andrew M. Purdy (State Bar No. 261912)
`Matthew S. Weiler (State Bar No. 236052)
`James G. Dallal (State Bar No. 277826)
`Ryan J. McEwan (State Bar No. 285595)
`JOSEPH SAVERI LAW FIRM, INC.
`555 Montgomery Street, Suite 1210
`San Francisco, California 94111
`Telephone:
`(415) 500-6800
`Facsimile:
`(415) 395-9940
`E-mails:
`
`jsaveri@saverilawfirm.com
`apurdy@saverilawfirm.com
`mweiler@saverilawfirm.com
`jdallal@saverilawfirm.com
`rmcewan@saverilawfirm.com
`
`
`Interim Lead Counsel for Direct Purchaser Plaintiffs
`
`Joseph W. Cotchett (State Bar No. 36324)
`Steven N. Williams (State Bar No. 175489)
`Adam J. Zapala (State Bar No. 245748)
`Elizabeth Tran (State Bar No. 280502)
`COTCHETT, PITRE & McCARTHY, LLP
`840 Malcolm Road, Suite 200
`Burlingame, CA 94010
`Telephone: (650) 697-6000
`Facsimile:
`(650) 697-0577
`E-mails:
`jcotchett@cpmlegal.com
`
`swilliams@cpmlegal.com
`
`azapala@cpmlegal.com
`
`etran@cpmlegal.com
`
`Interim Lead Counsel for Indirect Purchaser Plaintiffs
`
`[Additional Counsel Listed on Signature Page]
`
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`IN RE CAPACITORS ANTITRUST
`LITIGATION
`
`
`THIS DOCUMENT RELATES TO: ALL
`ACTIONS
`
`
`
`Master File No.: 3:14-cv-03264-JD
`
`JOINT STATUS CONFERENCE
`STATEMENT
`
`Date:
`Time:
`Place:
`Judge:
`
`July 20, 2016
`1:30 p.m.
`Courtroom 11, 19th Floor
`Hon. James Donato
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`
`
`JOINT STATUS CONFERENCE STATEMENT – MASTER FILE NO.: 3:14-CV-03264-JD
`
`
`

`

`Case 3:14-cv-03264-JD Document 1242 Filed 07/14/16 Page 2 of 35
`
`
`
`In advance of the Case Status Conference set by the Court for Wednesday, July 20, 2016, at
`1:30 p.m., Defendants,1 Direct Purchaser Plaintiffs (“DPPs”), Indirect Purchaser Plaintiffs (“IPPs”),
`
`and Flextronics International USA, Inc. (“Flextronics”) and, together with DPPs, and IPPs, the
`
`“Plaintiffs”), hereby submit this Joint Status Conference Statement.
`I.
`
`DEVELOPMENTS SINCE THE PARTIES’ LAST STATUS CONFERENCE
`
`On April 18, 2016, the Court issued Civil Minutes (Dkt. 1191) memorializing events and
`
`rulings at the Status Conference and directing the parties to meet and confer regarding a joint briefing
`
`and hearing schedule for Defendants’ summary judgment motions.
`
`On April 15, 2016, the Soshin Defendants filed their Answer to the Indirect Purchaser
`
`Plaintiffs’ Fourth Consolidated Complaint. (Dkt. 1175). And on April 26, 2016, the Soshin
`
`Defendants filed their Amended Answer to Direct Purchaser Plaintiffs’ Consolidated Second
`
`Amended Class Action Complaint and Complaint of Flextronics International USA, Inc. (Dkt. 1197).
`
`On April 27, 2016, the United States filed an Administrative Motion to Consider Whether
`
`Cases Should Be Related (Dkt. 1198) concerning United States v. Hitachi Chemical Co., Ltd., Case No.
`
`CR 16-0180-JD. On May 6, 2016, the Court issued a Related Case Order (Dkt. 1208) finding the
`Hitachi action related to this case.2
`
`On June 16, 2016, the KEMET Defendants filed an Administrative Motion Regarding
`
`Summary Judgment Briefing Schedule (Dkt. 1226). On June 20, 2016, DPPs filed an Opposition (Dkt.
`
`1227) to the Administrative Motion. On July 6, 2016, the KEMET Defendants filed a Notice (Dkt.
`
`1236) withdrawing the Administrative Motion.
`
`Defendants’ motions on FTAIA matters (Dkt. 911, 915) remain pending.
`
`
`
`1 In keeping with the Court’s expressed preference for attendance by lead counsel at status
`conferences in the October 30, 2014 Minute Order, lead counsel for the undersigned Defendants are
`making every effort to attend the status conference in person. Lead counsel for the Hitachi
`Defendants, the Panasonic/Sanyo Defendants, the AVX Defendants, the Nitsuko Defendants, the
`Rohm Defendants, and the Shinyei Defendants will be unable to attend the conference due to pre-
`existing obligations; these Defendants will be represented at the hearing by other of their counsel of
`record who will be fully prepared to address any issues that arise.
`2 The Court held a hearing in the Hitachi action and accepted the Hitachi Defendants’ guilty plea on
`June 9, 2016.
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`
`2
`JOINT STATUS CONFERENCE STATEMENT – MASTER FILE NO.: 3:14-CV-03264-JD
`
`
`

`

`Case 3:14-cv-03264-JD Document 1242 Filed 07/14/16 Page 3 of 35
`
`
`
`Defendant Nissei Electric Co., Ltd. filed its Motion to Dismiss (Dkt. 963) on the basis of lack
`
`of jurisdiction on November 20, 2015. The Court subsequently stayed all merits discovery as to Nissei
`
`pursuant to a stipulation by the parties. (Dkt. 988). Thereafter Plaintiffs requested and the Court
`
`ordered jurisdictional discovery, the Court held a discovery hearing, and the Court adopted the
`
`parties’ stipulated schedule. Plaintiffs filed their Opposition (Dkt. 1179-4) to Nissei’s motion on April
`
`15, 2016 and Nissei filed its Reply (Dkt. 1202) and supporting materials on April 29, 2016.
`
`On May 10, 2016, DPPs and IPPs filed an Objection to Nissei’s New Evidence on Reply and
`
`Motion to Strike the Kitamura Declaration (Dkt. 1213). On May 11, 2016, Nissei filed a Reply (Dkt.
`
`1215) to the Objection and Motion to Strike. The motion to strike and the underlying motion to
`
`dismiss are pending and ripe for resolution.
`
`At the last Status Conference, the Court set the trial in this matter to begin on July 10, 2017.
`
`(Dkt. 1191).
`II.
`
`SCHEDULING ISSUES
`A. DPPs and IPPs’ Statement
`
`In accordance with the Court’s Order (Dkt. 1191) that the parties develop a single summary
`
`judgment schedule, DPPs and IPPs propose the following:
`
`Summary Judgment Opening Briefs
`
`
`
`February 17, 2017
`
`Summary Judgment Opposition Briefs
`
`Summary Judgment Reply Briefs
`
` April 7, 2017
`
` May 5, 2017
`
`Hearing on Motion for Summary Judgment
`
` TBD
`
`This schedule comports with the Court’s instruction to negotiate a single summary briefing
`
`schedule and allows the summary judgment briefing to be completed sufficiently in advance of the
`
`commencement of trial on July 11, 2017.
`
`DPPs and IPPs have conveyed their position on scheduling summary judgment to Defendants
`
`in telephonic meet and confer calls, as directed by the Court. Counsel for Panasonic took the lead for
`
`Defendants in setting up the first of these calls and did not include counsel for Flextronics.
`
`Defendants also did not indicate that they intended to file or wished to negotiate a briefing schedule
`
`for any summary judgment motion directed at Flextronics’ claims.
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`
`3
`JOINT STATUS CONFERENCE STATEMENT – MASTER FILE NO.: 3:14-CV-03264-JD
`
`
`

`

`Case 3:14-cv-03264-JD Document 1242 Filed 07/14/16 Page 4 of 35
`
`
`
`B. Flextronics’ Statement
`
`Flextronics was not invited to, and thus did not attend, the July 7, 2016 meet and confer
`
`regarding scheduling that is referenced in the DPP and Defendants’ statement regarding this issue.
`
`As a result, Flextronics has not had the opportunity to confer with all parties as required by this
`
`Court’s local rules regarding a specific scheduling proposal. In principle, Flextronics concurs with the
`
`DPP class that Defendants' proposed delay of the current trial date is unwarranted. However,
`
`Flextronics agrees with Defendants that any proposed schedule must include adequate provision for
`
`the orderly submission of merits and damages expert reports. Flextronics respectfully proposes that
`
`the parties be ordered to meet and confer further regarding a precise schedule, and that the
`
`conference, per the Court's prior orders, include Flextronics. The parties can then submit an agreed-
`
`upon schedule or competing proposals as appropriate.
`C. Defendants’ Statement
`
`On April 18, 2016, the Court ordered the parties to meet and confer regarding a summary-
`
`judgment “joint briefing and hearing schedule.” April 18th Minute Order at 2 (the “April 18th
`
`Order”). In accordance with the April 18th Order, the parties conducted telephonic meet and confers
`
`on June 28, 2016, and July 7, 2016 (the “July 7th Meet and Confer”) to discuss, among other things,
`
`the summary-judgment briefing and hearing schedule. During the parties’ meet and confers,
`
`Defendants proposed an approximate eight-month extension of the overall case schedule because the
`
`current schedule does not appear to allow sufficient time to complete summary-judgment briefing and
`
`the completion of all merits and expert discovery after the determination of class certification by the
`
`Court.
`
`Defendants’ proposed summary-judgment and amended case schedule is provided in the
`
`below chart:
`
`Event
`
`Plaintiffs’ opening class certification brief
`
`Current
`Deadline
`
`9/12/2016
`
`Defendants’
`Proposed
`Deadline
`9/12/2016
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`
`4
`JOINT STATUS CONFERENCE STATEMENT – MASTER FILE NO.: 3:14-CV-03264-JD
`
`
`

`

`Case 3:14-cv-03264-JD Document 1242 Filed 07/14/16 Page 5 of 35
`
`
`
`Event
`
`Deadline for filing of early summary-judgment motions3
`Deadline for completion of fact discovery
`
`Defendants’ class certification oppositions/Daubert class-
`certification motions
`
`Current
`Deadline
`
`None
`
`None
`
`Defendants’
`Proposed
`Deadline
`10/14/2016
`
`12/16/2016
`
`12/22/2016
`
`12/22/2016
`
`Plaintiffs’ class certification replies/Daubert class-certification
`oppositions
`
`2/20/2017
`
`2/20/2017
`
`Defendants’ Daubert class-certification replies
`
`Class certification hearing
`
`Plaintiffs’ expert reports on merits4
`Defendants’ expert reports on merits
`
`Plaintiffs’ merits expert rebuttal reports
`
`Deadline for end of merits expert discovery, including merits
`expert depositions
`
`Summary-judgment openings & Daubert merits expert motions
`
`Summary-judgment oppositions & Daubert merits expert
`oppositions
`
`Summary-judgment replies & Daubert merit experts replies
`
`Summary-judgment hearing
`
`None
`
`None
`
`None
`
`None
`
`None
`
`None
`
`None
`
`None
`
`None
`
`None
`
`3/24/2017
`
`TBD by
`Court
`
`6/23/2017
`
`8/18/2017
`
`9/15/2017
`
`10/27/2017
`
`11/22/2017
`
`1/5/2018
`
`2/5/2018
`
`TBD by
`Court
`
`Trial
`
`While acknowledging that the “Court’s current schedule poses some challenges,” IPPs
`
`7/10/2017
`
`3/26/2018
`
`advised Defendants that they do not agree with Defendants’ proposed amended case schedule.
`
`On July 5, 2016, IPPs also submitted to Defendants an amended case schedule with proposed
`
`deadlines for, among other things, summary-judgment briefing and the parties’ exchange of merits
`
`expert reports. But during the July 7th Meet and Confer, IPPs advised Defendants that they do not
`
`
`
`3 See infra at § 8.
`4 Defendants’ proposed deadline of June 23, 2017 for the commencement of merits expert discovery
`assumes that the Court has ruled on Plaintiffs’ motions for class certification by that time.
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`
`5
`JOINT STATUS CONFERENCE STATEMENT – MASTER FILE NO.: 3:14-CV-03264-JD
`
`
`

`

`Case 3:14-cv-03264-JD Document 1242 Filed 07/14/16 Page 6 of 35
`
`
`agree with, among other things, Defendants’ proposed adjournment of the July 10, 2017 trial date.
`
`During the July 7th Meet and Confer, DPPs similarly advised that they do not agree with Defendants’
`
`proposed amended case schedule.
`
`Good cause exists to extend the overall case schedule for the following reasons. First, the
`
`current case schedule only allots approximately four-and-a-half months between the end of class
`
`certification briefing on February 20, 2017 and the current trial date on July 10, 2017 to complete the
`
`following:
`
`
`
`
`class certification Daubert briefing;
`
`merits expert discovery, including exchanging merits expert reports and conducting
`merits expert depositions, which can only be undertaken once the certification of any
`class(es) is determined;
`
`merits expert Daubert briefing;
`
`summary-judgment briefing (including allowing the Court sufficient time to issue
`decisions on the parties’ summary-judgment motions before trial); and
`
`the exchange of all pretrial submissions, including exhibit lists, deposition
`designations, witness lists, jury charges, and certified translations, as well as
`scheduling a pretrial conference.
`
`
`Defendants respectfully submit that the approximate four-and-a-half month period between
`
`
`
`
`
`
`the end of class certification briefing on February 20, 2017 and the current trial date of July 10, 2017
`
`does not provide sufficient time to complete these very significant tasks, which can only go forward if
`
`and when classes are certified .
`
`Second, the current case schedule does not allow sufficient time for the Court to issue class
`
`certification rulings before the parties commence merits expert work, with respect to any certified
`
`classes, as well as merits expert discovery. Defendants respectfully submit that it is more efficient to
`
`commence merits expert discovery after the Court has ruled on Plaintiffs’ upcoming class
`
`certification motions so that the parties can engage their respective experts to opine on the merits of
`
`the economic issues and damages related specifically to the class(es) (if any) actually certified by the
`
`Court. That way, the parties would not be required to engage their respective experts to conduct
`
`merits and damages analyses without knowing if there is a certified class(es), and if so, the scope of
`
`the class(es) that will be litigated going forward. Indeed, it would not likely be possible for Plaintiffs to
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`
`6
`JOINT STATUS CONFERENCE STATEMENT – MASTER FILE NO.: 3:14-CV-03264-JD
`
`
`

`

`Case 3:14-cv-03264-JD Document 1242 Filed 07/14/16 Page 7 of 35
`
`
`even prepare a damages expert report without knowing the scope of any certified class. Accordingly,
`
`in Defendants’ above proposed amended case schedule, Defendants provide for a period of time for
`
`the Court to rule on Plaintiffs’ upcoming class certification motions before the parties commence
`
`merits expert work, including damages studies, and merits expert discovery.
`
`Third, the current case schedule would require Defendants to conduct merits expert discovery
`
`contemporaneously with summary-judgment briefing. Under Federal Rule of Civil Procedure 26, the
`
`parties are required to disclose the expert witnesses they will use at trial, and for each of the disclosed
`
`expert witnesses, provide the following information:
`
`i) [A] complete statement of all opinions the witness will express and the basis
`and reasons for them; (ii) the facts or data considered by the witness in forming
`them; (iii) any exhibits that will be used to summarize or support them; (iv) the
`witness’s qualifications, including a list of all publications authored in the
`previous 10 years; (v) a list of all other cases in which, during the previous 4
`years, the witness testified as an expert at trial or by deposition; and (vi) a
`statement of the compensation to be paid for the study and testimony in the
`case.
`
`
`Fed. R. Civ. P. 26(a)(2)(B) and (D).5
`
`Given the current approximate four-month time frame between the end of class certification
`
`briefing and the current trial date, the parties’ summary judgment briefing would need to take place
`
`contemporaneously with the parties exchanges of the above pretrial expert disclosures under Rule 26,
`
`as well as depositions of merits experts, and potential Daubert merits briefs.
`
`As a result, under the current case schedule, Defendants would be effectively precluded from
`
`relying on merits expert evidence in support of certain summary-judgment motions that Defendants
`
`may seek to file in this case.
`
`For example, under the current case schedule, Defendants would be effectively precluded
`
`
`
`5 The default timing under Rule 26 for initial expert disclosures is “at least 90 days before the date set
`for trial or for the case to be ready for trial,” unless modified by court order or stipulation. Fed. R.
`Civ. P. 26(a)(2)(D)(i). Thus, absent a specific deadline set by the Court, Defendants’ initial expert
`disclosures would be due on April 11, 2017 (i.e., 90 days before July 10, 2017). Similarly, the default
`timing under Rule 26 for expert rebuttal reports that are “intended solely to contradict or rebut
`evidence on the same subject matter identified by another party under Rule 26(a)(2)(B)” is “30 days
`after the other party’s disclosure,” or May 11, 2017 (i.e., 30 days after April 11, 2017). Fed. R. Civ. P.
`26(a)(2)(D)(ii).
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`
`7
`JOINT STATUS CONFERENCE STATEMENT – MASTER FILE NO.: 3:14-CV-03264-JD
`
`
`

`

`Case 3:14-cv-03264-JD Document 1242 Filed 07/14/16 Page 8 of 35
`
`
`
`
`from moving for summary judgment if Plaintiffs’ expert:
` bases his or her opinions on the impact and damages on sales that are outside of the scope of
`the class under Illinois Brick and this Court’s future decision on the Defendants’ FTAIA
`summary judgment motions;
`
`fails to offer an opinion or a reliable factual basis for his or her opinion establishing antitrust
`injury to all class members as detailed in his or her report;
`
` uses an “umbrella” theory for establishing impact and damages to all class members as
`detailed in his or her report;
`
`fails to offer an opinion or a reliable factual basis for his or her opinion establishing that the
`alleged conduct by Defendants had a pricing effect on capacitors sold to United States
`purchasers; and
`
`fails to offer an opinion or a reliable factual basis for his or her opinion establishing that certain
`sizes, types, and/or categories of capacitors have been impacted by the alleged conspiracy.
`
`In contrast, Defendants’ proposed amended case schedule contemplates an expedited period
`
`
`
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`of time for merits expert discovery, followed shortly thereafter by the filing of the parties’ respective
`
`summary-judgment moving briefs. This will allow Defendants the ability to meaningfully rely on any
`
`relevant evidence obtained during merits expert discovery in support of their summary-judgment
`
`motions.
`
`Fourth, the current case schedule does not provide for any deadlines for class certification or
`
`merits expert Daubert briefing. Defendants’ above proposed schedule includes specific timeframes for
`
`both. Further, while Plaintiffs claim that Daubert briefing is unnecessary because Defendants can
`
`accomplish the same result “through a motion in limine in advance of trial,” infra at [13], the
`
`Supreme Court has recently made clear that unless a party “raise[s] a challenge to [an opposing
`
`party’s] experts’ methodology under Daubert . . . there is no basis in the record to conclude it was
`
`legal error to admit that evidence.” Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1049 (2016).
`
`Further, this Court’s Civil Jury Trial Order explicitly makes clear that motions in limine “are
`
`not substitutes for . . . motions to exclude expert testimony.” Standing Order for Civil Jury Trials before
`
`Judge James Donato (the “Standing Order”), ¶ 6 (emphasis added). This Court’s Standing Order
`
`further makes clear that “[m]otions in limine may not be used to request summary judgment or raise
`
`Daubert challenges unless the Court has specifically granted prior approval.” Id. Further, the
`
`
`
`
`
`8
`JOINT STATUS CONFERENCE STATEMENT – MASTER FILE NO.: 3:14-CV-03264-JD
`
`
`

`

`Case 3:14-cv-03264-JD Document 1242 Filed 07/14/16 Page 9 of 35
`
`
`Standing Order limits all briefs in support of motions in limine to three pages, which is wholly
`
`inadequate for a Daubert motion in a significant price-fixing class action such as this case. Id. ¶ 5(iv).
`
`Thus, Plaintiffs’ cavalier assertion that any Daubert motions that Defendants intend to file in this case
`
`should be relegated to a motion in limine filed shortly before trial is directly contradicted by this
`
`Court’s Standing Order.
`
`Additionally, Plaintiffs’ misguided proposal to relegate any of Defendants’ Daubert motions
`
`directed at Plaintiffs’ class certification experts to a motion in limine shortly before trial makes no
`
`sense because Defendants would obviously need to file any such Daubert motion(s) in connection
`
`with their oppositions to Plaintiffs’ class certification motions, which are currently due to be filed on
`
`December 22, 2016, or nearly seven months before the current trial date. The Court, in turn, would
`
`need to consider and rule on any such Daubert motions filed by Defendants directed at Plaintiffs’ class
`
`certification experts in connection with its class certification decision, which would be issued well
`before trial.6
`
`Defendants understand that the Court wishes for this case to proceed as expeditiously as
`
`possible. Defendants share that goal. But Defendants respectfully request these adjustments to allow
`
`the parties sufficient time to complete the significant remaining case activity, particularly merits and
`
`damages expert discovery and summary-judgment briefing, which can only take place after a class
`
`certification ruling by this Court.
`
`
`
`6 Plaintiffs curiously criticize Defendants’ proposal regarding class certification Daubert briefing
`forextending beyond the class certification briefing schedule. Infra at [15]. But Plaintiffs
`misunderstand the order of filings in connection with the upcoming class certification briefing: in
`support of their class certification motions, which are currently due on September 12, 2016, Plaintiffs
`likely will submit expert reports that may include opinions regarding class-wide impact, among other
`things. In connection with Defendants’ oppositions to Plaintiffs’ class certification motions, which
`are currently due on December 22, 2016, Defendants may file Daubert motions directed at the
`opinions and/or methodologies of Plaintiffs’ class certification experts. Plaintiffs, in turn, would
`oppose any Daubert class certification motions that Defendants may file, and Defendants propose that
`Plaintiffs do so at the same time that Plaintiffs file their replies in further support of their class
`certification motions, which are currently due on February 20, 2017. Defendants further propose to
`file their replies in support of any class certification Daubert motions on March 24, 2017. That is why
`Defendants’ proposed class certification Daubert briefing schedule extends beyond the class
`certification briefing schedule.
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`
`9
`JOINT STATUS CONFERENCE STATEMENT – MASTER FILE NO.: 3:14-CV-03264-JD
`
`
`

`

`Case 3:14-cv-03264-JD Document 1242 Filed 07/14/16 Page 10 of 35
`
`
`
`1.
`
`Requested Early Summary-Judgment Motions
`
`a.
`
`When these actions were first filed in July 2014, Plaintiffs brought claims solely as regards to
`
`Film-Only Defendants
`
`sales of electrolytic capacitors. Following the disclosure of an ongoing DOJ investigation into the film
`
`capacitor industry, Plaintiffs amended their pleadings in November 2014 to bring claims against film
`
`capacitor manufacturers. Indeed, some Defendants, Nissei Electric Co., Ltd., Shinyei Kaisha, Shinyei
`
`Capacitor Co., Ltd., Shinyei Technology Co., Ltd., Shinyei Corporation of America, Inc., Shizuki
`
`Electric Co., Inc., Soshin Electric Co., Ltd., Soshin Electronics of America Inc., Taitsu Corporation,
`
`and Taitsu America, Inc., do not manufacture or sell electrolytic capacitors (“Film-Only
`
`Defendants”).
`
`In January 2016, the DOJ closed its grand jury investigation into the film capacitor industry
`
`without taking any action against any of the Film-Only Defendants. The Film-Only Defendants
`
`respectfully submit that, after a year of merits discovery in which they produced millions of pages of
`
`documents and participated in numerous merits depositions, there is a genuine lack of evidence that
`
`any of them participated in conduct that amounts to a violation of the U.S. antitrust laws. Yet
`
`Plaintiffs have thus far ignored the Court’s directive at the last status conference by refusing to
`
`voluntarily release the Film-Only Defendants from this case. Plaintiffs’ reference to documents
`
`produced during discovery attests that this motion is ripe for resolution now. The Film-Only
`
`Defendants therefore request leave to file early summary judgment motions on liability in accordance
`
`with the schedule proffered by Defendants or at the Court’s earliest convenience.
`
`b.
`
`Soshin Electric Co., Ltd.
`
`Soshin Electric Co., Ltd. (“Soshin Japan”) requests leave to file an early motion for summary
`
`judgment on the issue of personal jurisdiction. When Defendants initially briefed their Rule 12
`
`motions, Plaintiffs’ pleadings stated claims against Defendants for sales of a wide range of products.
`
`Even when Plaintiffs agreed to limit their claims to “standalone capacitors”, the scope of that term
`
`remained ambiguous. See IPP’s Third Amended Complaint (Dkt. 1056) at ¶ 4 (defining a “standalone
`
`capacitor” as one that is “traceable to the specific manufacturer”). This issue has been the subject of
`
`many meet and confer efforts between Defendants and Plaintiffs over the past year. Defendants have
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`
`10
`JOINT STATUS CONFERENCE STATEMENT – MASTER FILE NO.: 3:14-CV-03264-JD
`
`
`

`

`Case 3:14-cv-03264-JD Document 1242 Filed 07/14/16 Page 11 of 35
`
`
`written to Plaintiffs multiple times requesting clarification of the scope of products included within
`
`the “standalone capacitor” definition. Plaintiffs consistently refused to respond to these letters,
`
`clarify the scope of their claims during meet and confers with Defendants generally and with Soshin
`
`specifically and have neglected to amend their pleadings to reflect what they now claim to be the
`
`proper scope of their claims. Indeed, as recently as March 2016, counsel for the DPPs wrote to
`
`counsel for Soshin Japan stating: “We asked our engineering people and we disagree about snubber
`
`modules. If those are in then that alone is sufficient to show Soshin has U.S. sales.” Faced with
`
`pleadings that brought claims regarding a wide range of capacitor sales and Plaintiffs’ unambiguous
`
`statements that their claims included Soshin’s U.S. sales of snubber modules, Soshin Japan was
`
`precluded from moving on either Rule 12 or Rule 56 grounds until now.
`
`At the April 15, 2016 case management conference, for the first time, both the DPPs and IPPs
`
`conceded that their claims were restricted to Defendants’ sales of “single unit, unprocessed
`
`capacitors, free-standing capacitors.” (Apr. 15, 2016 CMC Tr. 15:23-24.) At that conference,
`
`Plaintiffs further conceded that sales of snubber modules were not relevant to their claims. (Apr. 15,
`
`2016 CMC Tr. 13:13-19; 15:15-17.)
`
`Soshin Japan does not now sell, and during the Relevant Period, never sold “single unit,
`
`unprocessed capacitors, free-standing film capacitors” in or into the United States . This undisputed
`
`fact is confirmed by the transactional and accounting data produced by Soshin Japan and its U.S.
`
`subsidiary, Soshin Electronics of America Inc. This fact has been testified to by two Soshin witnesses,
`
`both in their declarations and in their depositions. There are simply no facts to the contrary.
`
`Soshin Japan therefore requests leave to move for summary judgment for lack of personal
`
`jurisdiction, or, in the alternative and if Plaintiffs choose to amend their pleadings, under Rule 12(c)
`
`for judgment on the pleadings.
`
`c.
`
`KEMET
`
`Following the Court’s suggestion that defendants KEMET Corporation and KEMET
`
`Electronics Corporation (collectively “KEMET”) move for summary judgment “at the earliest
`
`practicable time,” see Dkt. 758, KEMET filed a Motion for Summary Judgment (“MSJ”) on March
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`
`11
`JOINT STATUS CONFERENCE STATEMENT – MASTER FILE NO.: 3:14-CV-03264-JD
`
`
`

`

`Case 3:14-cv-03264-JD Document 1242 Filed 07/14/16 Page 12 of 35
`
`
`30, 2016. Dkt. 1124. KEMET seeks to have this motion heard on the “early” track briefing schedule.
`
`KEMET’s MSJ is limited to the DPP case, which is the only case in which it is a defendant.
`
`After KEMET filed its MSJ, the DPPs said they would oppose the MSJ under Federal Rule of
`
`Civil Procedure 56(d) unless KEMET agreed to provide additional discovery. KEMET negotiated an
`
`extended MSJ briefing schedule with the DPPs to accommodate an aggressive discovery plan.
`
`However, in the Civil Minutes issued following the April 15, 2016 case management conference, the
`
`Court terminated KEMET’s MSJ and directed the parties to meet and confer “on a joint briefing and
`
`hearing schedule” for summary judgment motions. Dkt. 1191 at 2. The DPPs then declined to go
`
`forward with the schedule to which they previously agreed. Nonetheless, the DPPs and KEMET have
`
`proceeded to complete most of the merits discovery that was part of their aggressive discovery plan.
`
`The DPPs have now had nearly two years to pursue discovery of KEMET. KEMET has produced
`
`more than five million pages of documents to the DPPs and provided written responses to voluminous
`
`interrogatories and informal questions posed by DPPs regarding KEMET’s transaction data. Dkt.
`
`1125 at ¶¶ 8, 14. The DPPs have also begun taking merits depositions and Rule 30(b)(6) testimony of
`
`KEMET.
`
`On June 16, 2016, KEMET filed an Administrative Motion Re: Summary Judgment Briefing
`
`Schedule (“Administrative Motion”) asking the Court to set a briefing and hearing schedule that
`
`would allow KEMET’s MSJ to be decided as soon as practicable. Dkt. 1226. On July 6, 2016,
`
`KEMET filed a Notice of Withdrawal of its Administrative Motion because KEMET discovered a
`
`backup tape with additional documents that may relate to some of the scheduled depositions. In light
`
`of this development, it was not possible to complete the agreed upon merits discovery by the July 30
`
`deadline to which KEMET and the DPPs agreed. As a result, KEMET withdrew the Administrative
`
`Motion premised on that schedule. However, the current proposed schedule, with merits summary
`
`judgment motions due October 14 and oppositions thereafter, provides ample time to complete the
`
`discovery of KEMET the DPPs sought in the parties’ stipulation.
`
`As KEMET stated in its Administrative Motion, the DPPs have had a full opportunity to
`
`engage in discovery with KEMET. Yet, the DPPs still have not identified a single witness or
`
`document that evidences KEMET’s participation in the conspiracy. Dkt. 1126 at 4-5. DPPs have not
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`
`12
`JOINT STATUS CONFERENCE STATEMENT – MASTER FILE NO.: 3:14-CV-03264-JD
`
`
`

`

`Case 3:14-cv-03264-JD Document 1242 Filed 07/14/16 Page 13 of 35
`
`
`explained how or why KEMET’s filing of an “early” summary judgment motion would prejudice
`
`them. The issues in KEMET’s motion are specific to KEMET, namely: do the DPPs have sufficient
`
`evidence to keep KEMET in this case. It would be unfair to force KEMET to wait even longer to have
`
`its motion heard and then only by shoehorning its motion into a joint filing on a range of other issues.
`
`KEMET’s previously-filed motion should go forward on the October schedule proposed by
`
`Defendants (or sooner if the Court wishes).
`D. Plaintiffs’ Response to Defendants’ Summary Judgment Schedule
`
`Defendants’ proposed schedule runs afoul of this Court’s direction at the April 15, 2016
`
`Status Conference, is inefficient, needlessly complex, and unnecessarily multiplies the proceedings. It
`
`is also inconsistent with the Court’s prior order setting trial in this matter to begin on July 10, 2017.
`
`(Dkt. 1191.) The Court should adopt Plaintiffs’ proposed schedule.
`
`At the April 15, 2016 Status Conference this Court indicated that the parties should proceed
`on a unified summar