`
`Whitney E. Street (State Bar No. 223870)
`BLOCK & LEVITON LLP
`100 Pine Street, Suite 1250
`San Francisco, CA 94111
`Telephone: (415) 968-1852
`Facsimile: (617) 507-6020
`Email: wstreet@blockesq.com
`
`
`
`
`
`Charles E. Tompkins (admitted pro hac vice)
`WILLIAMS MONTGOMERY & JOHN LTD.
`1200 18th Street NW, Suite 325
`Washington, D.C. 20036
`Telephone: (202) 791-9951
`Facsimile: (312) 630-8586
`Email: cet@willmont.com
`
`Paul J. Ripp (admitted pro hac vice)
`WILLIAMS MONTGOMERY & JOHN LTD.
`233 S. Wacker Drive, Suite 6800
`Chicago, IL 60606
`Telephone: (312) 443-3200
`Facsimile: (312) 630-8500
`Email: pjr@willmont.com
`
`
`Counsel for Plaintiff Flextronics International USA, Inc.
`
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`IN RE CAPACITORS ANTITRUST
`LITIGATION
`
`
`
`
`THIS DOCUMENT RELATES TO:
`
`FLEXTRONICS INTERNATIONAL USA,
`INC.’S ACTION
`
`
`
`
`Case No. 3:14-cv-03264-JD
`MDL No. 2801
`
`FLEXTRONICS INTERNATIONAL USA,
`INC.’S REPLY IN SUPPORT OF MOTION
`TO EXCLUDE PORTIONS OF THE
`PROPOSED EXPERT REPORT AND
`TESTIMONY OF SPENCER L. SIMONS
`
`
`
`
`
`
`
`[REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED]
`
`
`Case No. 3:14-cv-03264-JD
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`FLEX’S REPLY IN SUPPORT OF MOTION TO EXCLUDE PORTIONS OF THE PROPOSED EXPERT REPORT AND
`TESTIMONY OF SPENCER L. SIMONS
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`Case 3:14-cv-03264-JD Document 2421 Filed 08/15/19 Page 2 of 6
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`
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`Flextronics International USA, Inc. (“Flex”) submits this reply in support of its Motion to
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`Exclude Portions of the Proposed Expert Report and Testimony of Spencer L. Simons. Simons,
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`the Defendants’ expert on sales and marketing in the capacitors industry, opined that collusion
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`was unlikely in the capacitors industry because the industry is highly differentiated. Report at
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`2.3.0. When asked what training he has on whether collusion is more or less likely in a particular
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`situation, Simons responded that he had “
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`” Dep. at 74:15-18. Simons does not have
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`an economics degree and admits that he is “
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`.” Dep. at 54:12-25.
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`I.
`
`ARGUMENT
`
`Experts may not testify regarding areas outside their expertise. Apple, Inc. v. Samsung
`
`Elecs. Co., Ltd., Case No. 11-cv-01846-LHK, 2013 WL 5955666, at *2 (N.D. Cal. Nov. 6, 2013)
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`(citing White v. Ford Motor Co., 312 F.3d 998, 1008–09 (9th Cir. 2002) (“A layman, which is
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`what an expert witness is when testifying outside his area of expertise, ought not to be anointed
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`with ersatz authority as a court-approved expert witness for what is essentially a lay opinion.”)).
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`Here, Simons admits that the question of whether collusion is more or less likely in a given
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`situation is “
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`” and that he is “
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`.” Dep. at 54:12-
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`25; 55:1-56:7. The Court should accept Simons’s representation that his conclusion is outside his
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`area of expertise, and exclude that conclusion.
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`Defendants do not, and cannot, contend that Simons is qualified to opine on the likelihood
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`of collusion generally. Rather, Defendants attempt to recategorize Simons’s opinion on the
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`likelihood of collusion as Simons offering an opinion on the “technical and commercial aspects of
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`the capacitors industry.” Defs.’ Opp’n at 18. Mr. Simons’s Report directly contradicts the point:
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`Based upon the complexities and highly differentiated nature of the
`capacitor industry, I conclude that it is highly unlikely that the defendant
`capacitor manufacturers successfully colluded to uniformly increase the
`
`
`Case No. 3:14-cv-03264-JD
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`2
`FLEX’S REPLY IN SUPPORT OF MOTION TO EXCLUDE PORTIONS OF THE PROPOSED EXPERT REPORT
`AND TESTIMONY OF SPENCER L. SIMONS
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`Case 3:14-cv-03264-JD Document 2421 Filed 08/15/19 Page 3 of 6
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`
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`price of aluminum, tantalum, and film capacitors during the Relevant
`Period.
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`Report at 2.3.0 (emphasis added).
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`Mr. Simons is, by his own admission, unqualified to testify regarding the likelihood of
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`collusion because he has “
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`” and is “
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`” on the topic. Dep. at 74:15-18; 54:12-
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`25.
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`Defendants cite to three cases they claim provide support for their argument that a witness
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`who is admittedly not an expert in a given area can nonetheless provide expert testimony in that
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`area. None fit the facts of this case, and none support allowing Simons to give an expert opinion
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`in an area in which he is “
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`” Dep. at 54:12-25.
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`The Toomey case cited by Defendants involved an expert witness who possessed
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`experience “modeling and forecasting…economic outcomes,” had taken a variety of college and
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`graduate-level courses in mathematics, accounting, economics, and statistics, had written a
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`masters thesis on the valuation of services in the relevant industry, had written books on billing
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`in the relevant industry, and had created a damages calculation that relied on simple arithmetic
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`rather than econometric modeling. See Toomey v. Nextel Commc’ns, Inc., No. C-03-2887 MMC,
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`2004 WL 5512967, at *7-8 (N.D. Cal. Sept. 23, 2004). By contrast, Simons provides no external
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`source for his opinion on the likelihood of collusion, which he admits is “
`
`
`
`” but rather is merely applying his “
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`.” Dep. at 55:1-56:7; 60:23-63:8.
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`In Berlyn, an expert was deemed qualified to offer an opinion on pricing below marginal
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`cost in the newpaper industry because the expert had “conducted and reviewed predatory pricing
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`analyses for several major publications,” had studied finance and served as a senior financial
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`executive for several prominent companies, and had teaching experience specifically dealing with
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`Case No. 3:14-cv-03264-JD
`
`3
`FLEX’S REPLY IN SUPPORT OF MOTION TO EXCLUDE PORTIONS OF THE PROPOSED EXPERT REPORT
`AND TESTIMONY OF SPENCER L. SIMONS
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`Case 3:14-cv-03264-JD Document 2421 Filed 08/15/19 Page 4 of 6
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`
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`topics such as newspaper costs and price structuring. Berlyn, Inc. v. Gazette Newspapers, Inc., 214
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`F. Supp. 2d 530, 537-540 (D. Md. 2002). By contrast, and as pointed out in Flex’s Motion, the
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`court in Berlyn excluded the same expert’s opinion defining the relevant market because the
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`witness lacked the relevant education, training, or experience to offer that opinion. See id.; Flex
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`Mot. at 5.
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`Defendants’ citation to GSI Technology is puzzling. In GSI Technology, the proposed
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`expert witness offered the opinion of “[redacted]” and possessed the experience of “[redacted].”
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`GSI Tech., Inc. v. Cypress Semiconductor Corp., No. 5:11-CV-03613-EJD, 2015 WL 364796, at
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`*2 (N.D. Cal. Jan. 27, 2015) (redactions in original). Defendants fail to explain how an entirely
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`redacted opinion supports their position that an expert witness can offer an opinion that is
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`admittedly outside his or her area of expertise.
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`Defendants suggest that Flex can “point out to the jury that Mr. Simons’ expertise is
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`grounded in industry experience rather than economic theory.” Defs.’ Opp’n at 21.1 But whatever
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`the value of Mr. Simons’ industry experience generally, that experience does not translate into an
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`expert opinion about the likelihood of collusion. As Mr. Simons testified, his opinion regarding
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`the likelihood of collusion is a two-step analysis. First, Mr. Simons opines that there is significant
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`differentiation among products in the capacitors industry. Dep. at 74:1-8. Second, Mr. Simons
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`opines that the product differentiation he claims to have identified renders collusion unlikely.
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`Dep. at 74:9-18. Mr. Simons himself conceded that this aspect of his opinion is based on “
`
`
`
`
`1 Defendants cite to Icon-IP, which involved a witness qualified to offer an opinion comparing
`two bicycle saddles because the witness had extensive experience conducting product reviews
`and comparisons of cycling gear as a journalist and editor of cycling magazines. Icon-IP Pty Ltd.
`v. Specialized Bicycle Components, Inc., 87 F. Supp. 3d 928, 946 (N.D. Cal. 2015). That witness,
`however, does not appear to have offered an opinion on any subject outside his very narrow area
`of comparing a bicycle saddle to another bicycle saddle. Id.
`
`Case No. 3:14-cv-03264-JD
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`4
`FLEX’S REPLY IN SUPPORT OF MOTION TO EXCLUDE PORTIONS OF THE PROPOSED EXPERT REPORT
`AND TESTIMONY OF SPENCER L. SIMONS
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`Case 3:14-cv-03264-JD Document 2421 Filed 08/15/19 Page 5 of 6
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`” Dep. at 63:4-8. It is axiomatic that an expert cannot opine based on common sense because
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`common sense does not require specialized expertise or training. See Fed. R. Evid. 702; Daubert
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`v. Merrell Dow Pharm., Inc., 509 U.S. 579, 590 (1993). We trust jurors to bring common sense to
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`the courtroom, not paid experts.
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`II.
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`CONCLUSION
`
`For the reasons set forth above, Flex respectfully requests that the Court exclude Mr.
`
`Simons’s opinion that collusion was unlikely.
`
`
`
`Dated: August 15, 2019
`
`Respectfully submitted,
`
`WILLIAMS MONTGOMERY & JOHN LTD.
`
`By: /s/ Charles E. Tompkins
`
`Charles E. Tompkins
`
`Charles E. Tompkins (admitted pro hac vice)
`WILLIAMS MONTGOMERY & JOHN LTD.
`1200 18th Street NW, Suite 325
`Washington, D.C. 20036
`Telephone: (202) 791-9951
`Facsimile: (312) 630-8586
`Email: cet@willmont.com
`
`Paul J. Ripp (admitted pro hac vice)
`WILLIAMS MONTGOMERY & JOHN LTD.
`233 S. Wacker Drive, Suite 6800
`Chicago, IL 60606
`Telephone: (312) 443-3200
`Facsimile: (312) 630-8500
`Email: pjr@willmont.com
`
` Whitney E. Street (State Bar No. 223870)
` BLOCK & LEVITON LLP
` 100 Pine Street, Suite 1250
` San Francisco, CA 94111
`
`
`Case No. 3:14-cv-03264-JD
`
`5
`FLEX’S REPLY IN SUPPORT OF MOTION TO EXCLUDE PORTIONS OF THE PROPOSED EXPERT REPORT
`AND TESTIMONY OF SPENCER L. SIMONS
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`Case 3:14-cv-03264-JD Document 2421 Filed 08/15/19 Page 6 of 6
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` Telephone: (415) 968-1852
` Facsimile: (617) 507-6020
` Email: wstreet@blockesq.com
`
`Counsel for Plaintiff Flextronics International
`USA, Inc.
`
`Doc. 1290141
`
`
`
`
`
`
`
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`Case No. 3:14-cv-03264-JD
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`FLEX’S REPLY IN SUPPORT OF MOTION TO EXCLUDE PORTIONS OF THE PROPOSED EXPERT REPORT
`AND TESTIMONY OF SPENCER L. SIMONS
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