Case 3:14-cv-03264-JD Document 2034 Filed 01/18/18 Page 1 of 24
`
`BONNIE LAU (State Bar No. 246188)
`bonnie.lau@dentons.com
`DENTONS US LLP
`One Market Plaza, Spear Tower, 24th Floor
`San Francisco, California 94105
`Telephone:
`(415) 882-5000
`Facsimile:
`(415) 882-0300
`
`FELIX T. WOO (State Bar No. 208107)
`felix.woo@dentons.com
`DENTONS US LLP
`601 S. Figueroa Street, Suite 2500
`Los Angeles, California 90017
`Telephone:
`(213) 623-9300
`Facsimile:
`(213) 623-9924
`
`Attorneys for Defendant
`MATSUO ELECTRIC CO., LTD.
`
`[Additional Counsel Listed On Signature Page]
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`SAN FRANCISCO DIVISION
`
`IN RE CAPACITORS ANTITRUST
`LITIGATION
`
`________________________________________
`
`This Document Relates to:
`
`All Direct Purchaser Actions
`
`MDL No. 2801
`
`Master File No. 3:14-cv-03264-JD
`DEFENDANTS’1 OPPOSITION TO
`DIRECT PURCHASER PLAINTIFFS’
`MOTION FOR LEAVE TO AMEND
`COMPLAINT
`
`[Declarations Of Bonnie Lau And
`Chris Megaw Filed Concurrently]
`
`1
`The undersigned Defendants are Matsuo Electric Co., Ltd. (“Matsuo”); Rubycon Corporation
`and Rubycon America Inc. (together, “Rubycon”); ELNA Co., Ltd. and ELNA America, Inc.
`(together, “ELNA”); Panasonic Corporation, Panasonic Corporation of North America, SANYO
`Electric Co., Ltd, SANYO North America Corporation; United Chemi-Con, Inc., Nippon Chemi-Con
`Corporation; Shinyei Kaisha, Shinyei Technology Co., Ltd., Shinyei Capacitor Co., Ltd., Shinyei
`Corporation of America; Nichicon Corporation, Nichicon (America) Corporation; KEMET
`Corporation, KEMET Electronics Corporation; and Shizuki Electric Co., Inc.
`
`Master File No. 3:14-cv-03264-JD
`
`DEFENDANTS’ OPPOSITION TO DPPS’
`MOTION FOR LEAVE TO AMEND COMPLAINT
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`Case 3:14-cv-03264-JD Document 2034 Filed 01/18/18 Page 2 of 24
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`TABLE OF CONTENTS
`
`Page
`
`I.
`
`II.
`
`III.
`
`IV.
`
`INTRODUCTION ................................................................................................................. 1
`
`RELEVANT BACKGROUND ............................................................................................. 2
`
`LEGAL STANDARD............................................................................................................ 3
`
`DPPS FAIL TO SHOW GOOD CAUSE FOR LEAVE TO ADD NEW DEFENDANTS. . 4
`
`A.
`
`B.
`
`DPPs Unduly Delayed in Seeking Leave To Add New Individual Defendants
`Based on Facts Long Known Or Reasonably Available To Them. ........................... 4
`
`Defendants Will Suffer Substantial Prejudice If DPPs’ Motion Is Granted. ............. 9
`
`V.
`
`THE COURT SHOULD DENY DPPS’ BELATED MOTION FOR LEAVE TO
`SUBSTITUTE PRIDE FOR CHIP-TECH AS A REPRESENTATIVE PLAINTIFF. ....... 10
`
`A.
`
`B.
`
`DPPs Unduly Delayed Two Years Before Seeking Leave to
`Amend To Add Pride. .............................................................................................. 11
`
`DPPs’ Proposed Addition of Pride as a Representative Plaintiff
`at This Late Stage of the Litigation Would Unfairly Prejudice Defendants. ........... 13
`
`VI.
`
`CONCLUSION.................................................................................................................... 15
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`DEFENDANTS’ OPPOSITION TO DPPS’
`MOTION FOR LEAVE TO AMEND COMPLAINT
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`Case 3:14-cv-03264-JD Document 2034 Filed 01/18/18 Page 3 of 24
`
`TABLE OF AUTHORITIES
`
`Federal Cases
`
`Pages
`
`Aircraft Tech. Publishers v. Avantext, Inc.,
`No. C 07-4154 SBA, 2009 U.S. Dist. LEXIS 57671 (N.D. Cal. June 19, 2009)..............................5
`
`AmerisourceBergen Corp. v. Dialysist West, Inc.,
`465 F.3d 946 (9th Cir. 2006).......................................................................................................5, 14
`
`Ascon Properties, Inc. v. Mobil Oil Co.,
`866 F.2d 1149 (9th Cir. 1989).........................................................................................................12
`
`Bull v. City of San Francisco,
`No. C 03-01840 CRB, 2010 WL 3516099 (N.D. Cal. Sept. 8, 2010).............................................13
`
`Chodos v. W. Publ’g Co.,
`292 F.3d 992 (9th Cir. 2002).................................................................................................4, 11, 12
`
`Coleman v. Quaker Oats Co.,
`232 F.3d 1271 (9th Cir. 2000).....................................................................................................3, 11
`
`DCD Programs, Ltd. v. Leighton,
`833 F.2d 183 (9th Cir. 1987).............................................................................................................4
`
`DRK Photo v. McGraw-Hill Glob. Educ. Holdings, LLC,
`870 F.3d 978 (9th Cir. 2017).............................................................................................................4
`
`Dutciuc v. Meritage Homes of Arizona, Inc.,
`462 F. App’x 658 (9th Cir. 2011) ...................................................................................................12
`
`In re Flash Memory Antitrust Litigation,
`No. C 07-0086 SBA, 2010 WL 2465329 (N.D. Cal. June 10, 2010). ..........................11, 13, 14, 15
`
`Jackson v. Bank of Hawaii,
`902 F.2d 1385 (9th Cir. 1990).........................................................................................................11
`
`Jacobson v. Persolve, LLC,
`No. 14-CV-00735-LHK, 2015 WL 2061712 (N.D. Cal. May 1, 2015) ...........................................5
`
`Johnson v. Hewlett-Packard Co.,
`546 F. App’x 613 (9th Cir. 2013) ...................................................................................................12
`
`Johnson v. Mammoth Recreations, Inc.,
`975 F.2d 604 (9th Cir. 1992).........................................................................................................3, 4
`
`Lamberth v. Clark Cty. Sch. Dist.,
`698 F. App’x 387 (9th Cir. 2017) .....................................................................................................6
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`Master File No. 3:14-cv-03264-JD
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`DEFENDANTS’ OPPOSITION TO DPPS’
`MOTION FOR LEAVE TO AMEND COMPLAINT
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`Case 3:14-cv-03264-JD Document 2034 Filed 01/18/18 Page 4 of 24
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`Mansourian v. Bd. of Regents of the Univ. of Cal.,
`No. CIV S-03-2591 FCD EFB, 2007 WL 841739 (E.D. Cal. March 20, 2007).............9, 11, 13, 14
`
`McGlinchy v. Shell Chem. Co.,
`845 F.2d 802 (9th Cir. 1988)...........................................................................................................12
`
`Nat’l Auto Brokers Corp. v. Gen. Motors Corp.,
`60 F.R.D. 476 (S.D.N.Y. 1973) ......................................................................................................14
`
`Neidermeyer v. Caldwell,
`No. 16-55233, 2017 WL 6014359 (9th Cir. Dec. 5, 2017)...............................................................3
`
`Neurospine v. Cigna Health & Life Ins. Co.,
`No. 16-CV-05061-LHK, 2017 WL 1177994 (N.D. Cal. Mar. 30, 2017) .........................................4
`
`Osakan v. Apple Am. Grp.,
`No. C 08-4722 SBA, 2010 U.S. Dist. LEXIS 53830 (N.D. Cal. May 3, 2010)....................9, 13, 14
`
`Palana v. Mission Bay Inc.,
`No. 13-CV-05235-SI, 2016 WL 107487 (N.D. Cal. Jan. 11, 2016) .................................................8
`
`Siliga v. Deutsche Bank Nat. Tr. Co.,
`637 F. App’x 438 (9th Cir. 2016) .....................................................................................................5
`
`Solomon v. N. Am. Life & Cas. Ins. Co.,
`151 F.3d 1132 (9th Cir. 1998)...........................................................................................................9
`
`Universal Engraving, Inc. v. Metal Magic, Inc.,
`602 F. App’x 367 (9th Cir. 2015) .....................................................................................................4
`
`Vasiliow Co. v. Anheuser-Busch, Inc.,
`117 F.R.D. 345 (E.D.N.Y. 1987) ....................................................................................................14
`
`In re W. States Wholesale Nat. Gas Antitrust Litig.,
`715 F.3d 716 (9th Cir. 2013).............................................................................................................3
`
`Zivkovic v. S. California Edison Co.,
`302 F.3d 1080 (9th Cir. 2002).......................................................................................................3, 9
`
`Other Authorities
`
`Fed. R. Civ. P. 15.......................................................................................................................... passim
`
`Fed. R. Civ. P. 16.......................................................................................................................... passim
`
`Fed. R. Civ. P. 23..................................................................................................................................15
`
`Fed. R. Civ. P. 30............................................................................................................................11, 13
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`Master File No. 3:14-cv-03264-JD
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`DEFENDANTS’ OPPOSITION TO DPPS’
`MOTION FOR LEAVE TO AMEND COMPLAINT
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`

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`Case 3:14-cv-03264-JD Document 2034 Filed 01/18/18 Page 5 of 24
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`I.
`
`INTRODUCTION
`Over three years after filing this lawsuit, and as the end of class discovery approaches,
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`Direct Purchaser Plaintiffs (“DPPs”) now seek leave to amend their complaint for the fourth time.
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`DPPs attempt to add as new defendants seven individuals that were allegedly former officers of
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`Defendants Matsuo, Rubycon and ELNA: Hidenori Tonouchi, Shuichi Katsuyama, Akio Yokoyama,
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`Shingo Tanaka, Hidetoshi Aono, Kenzaburo Kurata, and Takumi Shimizu. In addition, DPPs seek to
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`substitute an entirely new entity, Pride Electronics, Inc. (“Pride”) for original named-plaintiff Chip-
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`Tech, Inc. (“Chip-Tech”), over two years after Chip-Tech went out of business, with no explanation
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`whatsoever in their motion for the substitution or lengthy delay.
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`DPPs fail to establish “good cause” to amend under Rule 16 because they were dilatory in
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`seeking leave of Court and their proposed amendments would unfairly prejudice Defendants (and any
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`new parties). As an initial matter, Plaintiffs apply the wrong legal standard. The liberal Rule 15
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`standard for amendment does not apply here, where the Court’s scheduling order deadline for
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`amendment passed two and a half years ago, on June 16, 2015. (ECF No. 735.)
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`DPPs failed to exercise the requisite diligence to establish Rule 16 good cause to amend here.
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`DPPs were aware or should have been aware of these individuals and potential claims when they first
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`filed suit, or shortly after the commencement of discovery.
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`Indeed, DPPs’ own declaration admits
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`they were on notice of these individuals’ conduct for months, and even years, but were simply
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`dilatory in seeking amendment. And DPPs plainly have been aware of the need to substitute a new
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`plaintiff for Chip-Tech for over two years. DPPs present no newly discovered evidence, and
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`no explanation for their extraordinary delay in adding these new parties.
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`Moreover, the resulting prejudice that existing and newly proposed defendants would suffer if
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`amendment is allowed justifies denying DPPs’ motion. Extensive discovery has been conducted, and
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`partial summary judgment and class certification motions have been resolved or fully briefed.
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`Although DPPs represented that they would not seek to extend the fact discovery cut-off or any of the
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`other dates on the schedule ordered at the January 11, 2018 status conference if leave to amend is
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`granted, the new defendants have not had the opportunity to defend themselves at any prior stage of
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`this case, and their inclusion at this late juncture would necessitate potentially extensive new written
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`Master File No. 3:14-cv-03264-JD
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`DEFENDANTS’ OPPOSITION TO DPPS’
`MOTION FOR LEAVE TO AMEND COMPLAINT
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`Case 3:14-cv-03264-JD Document 2034 Filed 01/18/18 Page 6 of 24
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`discovery, depositions and motion practice. All parties would suffer significant expense, cost and
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`burden.
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`DPPs’ only purported justification for seeking leave to amend at this late date is certain
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`Defendants’ risk of financial insolvency. But, as a court in this district recently held, concerns about
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`corporate defendants’ finances do not justify DPPs’ belated attempt to introduce new defendants to
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`this case, and do not outweigh the undue delay and extreme prejudice to Defendants.
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`Because DPPs were dilatory in seeking amendment based on known facts, and because
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`amendment would cause unfair prejudice to Defendants and any new parties, DPPs fail to establish
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`“good cause” and their motion for leave to file a fourth amended complaint should be denied.
`
`II.
`
`RELEVANT BACKGROUND
`
`DPPs filed their original Complaint over three years ago, on July 18, 2014 (ECF No. 1).
`
`The Court issued a scheduling order based on the parties’ stipulated discovery schedule (the
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`“Scheduling Order”) on June 8, 2015 (ECF No. 735). The Scheduling Order directed plaintiffs to
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`“file amended complaints or notices of intent not to amend” by June 16, 2015. (Id.)
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`In accordance with that Scheduling Order, on June 16, 2015, DPPs filed their First Amended
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`Consolidated Class Action Complaint (ECF No. 742).
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`The Court instructed DPPs to file a Second Amended Complaint to join direct action plaintiff
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`Flextronics at a status hearing on July 8, 2015 (ECF No. 774). DPPs and Flextronics filed that
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`Complaint with the Court on the stipulated extended deadline, July 22, 2015 (ECF No. 799-4).
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`Defendants consented to the filing of a Third Amended Complaint on September 6, 2017
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`(ECF No. 1831), because it made no substantive changes to the pleading, save for dropping a single
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`cause of action, and because the parties agreed that Defendants need not answer (ECF No. 1848,
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`1832).
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`On December 12, 2017, DPPs sent an email requesting that Defendants consent to the filing
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`of the Fourth Amended Complaint at issue, to add new individual defendants and substitute a new
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`named plaintiff. Defendants refused to consent. DPPs filed the instant Motion for Leave to Amend
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`on January 4, 2018 (ECF No. 1997).
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`DEFENDANTS’ OPPOSITION TO DPPS’
`MOTION FOR LEAVE TO AMEND COMPLAINT
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`Case 3:14-cv-03264-JD Document 2034 Filed 01/18/18 Page 7 of 24
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`III.
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`LEGAL STANDARD
`DPPs incorrectly rely on the liberal amendment standards of Fed. R. Civ. P. 15(a)(2).2 This
`standard only applies in the early stages of a case, prior to the entry of a scheduling order setting the
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`deadline to amend pleadings and add new parties. Any amendment after that deadline requires a
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`showing of “good cause” under Fed. R. Civ. P. 16(b). Johnson v. Mammoth Recreations, Inc., 975
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`F.2d 604, 607-08 (9th Cir. 1992) (“Rule 15 does not provide the standards by which we consider
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`[a party’s] motion to amend to add [a new party] as a defendant. Once the district court had filed a
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`pretrial scheduling order pursuant to Federal Rule of Civil Procedure 16 which established a
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`timetable for amending pleadings that rule’s standards controlled.”). The Ninth Circuit has
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`specifically found that Rule 16 is applicable to motions to amend when a court has issued an order
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`“that establishe[s] a timetable for amending the pleadings, and the deadline ha[s] expired.” Coleman
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`v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000).
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`Rule 16(b)’s good cause standard primarily considers the diligence of the party seeking the
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`amendment. Johnson, 975 F.2d at 609. “The good cause standard typically will not be met where
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`the party seeking to modify the scheduling order has been aware of the facts and theories supporting
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`amendment since the inception of the action.” In re W. States Wholesale Nat. Gas Antitrust Litig.,
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`715 F.3d 716, 737-38 (9th Cir. 2013) (denying leave where “motions for leave to amend the[]
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`complaints were filed nine months after the [ . . . ] scheduling deadline to amend pleadings” and the
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`plaintiffs “failed to demonstrate good cause for their untimely motion to amend, and thus, the district
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`court did not abuse its discretion in denying that motion”); Neidermeyer v. Caldwell, No. 16-55233,
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`2017 WL 6014359, at *3 (9th Cir. Dec. 5, 2017) (denying leave where the plaintiff has “already had
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`two opportunities to amend his complaint and has offered no explanation for his undue delay in
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`seeking a third, the lateness of which would prejudice” the defendant). “Although the existence or
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`degree of prejudice to the party opposing the modification might supply additional reasons to deny a
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`2
`Even if the Court were to apply Rule 15’s more permissive standard, DPPs’ motion still fails,
`as Plaintiffs’ lack of diligence in seeking leave to amend also amounts to prejudice or undue delay
`that bars amendment even under Rule 15’s more permissive standard. Zivkovic v. S. California
`Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (holding that, even under the Rule 15 standard, a
`motion to amend filed near the end of discovery should be denied where it would result in additional
`discovery, would cause prejudice, or would delay proceedings.).
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`Master File No. 3:14-cv-03264-JD
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`DEFENDANTS’ OPPOSITION TO DPPS’
`MOTION FOR LEAVE TO AMEND COMPLAINT
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`Case 3:14-cv-03264-JD Document 2034 Filed 01/18/18 Page 8 of 24
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`motion, the focus of the inquiry is upon the moving party’s reasons for seeking modification. If that
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`party was not diligent, the inquiry should end.” Johnson, 975 F.2d at 609 (citations omitted).
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`IV.
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`DPPS FAIL TO SHOW GOOD CAUSE FOR LEAVE TO ADD NEW DEFENDANTS.
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`The heightened Rule 16 standard applies to DPPs’ motion for leave because a scheduling
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`order was entered in this case and the deadline for amendment passed on June 16, 2015, more than
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`two years ago (ECF No. 735). Accordingly, DPPs must — but fail to — show good cause to alter the
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`scheduling order and extend the deadline for amendment in this case.
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`Courts routinely deny leave to amend complaints after the date to add parties or amend
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`pleadings has passed. The Ninth Circuit has held that:
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`[a] scheduling order ‘is not a frivolous piece of paper, idly entered,
`which can be cavalierly disregarded by counsel without peril.’ The
`district court’s decision to honor the terms of its binding scheduling
`order does not simply exalt procedural technicalities over the merits of
`[the parties’] case. Disregard of the order would undermine the court’s
`ability to control its docket, disrupt the agreed-upon course of the
`litigation, and reward the indolent and the cavalier. Rule 16 was
`drafted to prevent this situation and its standards may not be short-
`circuited by an appeal to those of Rule 15.
`DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187–88 (9th Cir. 1987) (citations omitted); see also
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`DRK Photo v. McGraw-Hill Glob. Educ. Holdings, LLC, 870 F.3d 978, 989 (9th Cir. 2017)
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`(affirming denial of leave to amend where a party knew of the claim it sought to add one month after
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`the litigation was initiated but did not seek amendment for nearly two years); Universal Engraving,
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`Inc. v. Metal Magic, Inc., 602 F. App’x 367, 370 (9th Cir. 2015) (upholding denial of leave to amend
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`for failure of the party seeking amendment to show diligence).
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`A.
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`DPPs Unduly Delayed in Seeking Leave To Add New Individual Defendants
`Based on Facts Long Known Or Reasonably Available To Them.
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`A proposed amendment
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`is untimely if it
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`is sought
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`long after the facts supporting the
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`amendment were known or should have been known by the movant. See Chodos v. W. Publ’g Co.,
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`292 F.3d 992, 1003 (9th Cir. 2002) (affirming denial of a motion for leave to amend because the facts
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`supporting the amendment “had been available to [the plaintiff] even before the first amendment to
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`his complaint”); Neurospine v. Cigna Health & Life Ins. Co., No. 16-CV-05061-LHK, 2017 WL
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`1177994, at *4 (N.D. Cal. Mar. 30, 2017) (plaintiffs do not meet the Rule 16 good cause standard
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`DEFENDANTS’ OPPOSITION TO DPPS’
`MOTION FOR LEAVE TO AMEND COMPLAINT
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`Case 3:14-cv-03264-JD Document 2034 Filed 01/18/18 Page 9 of 24
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`where their motion to amend is filed months after they knew or should have known about an
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`additional party’s alleged involvement in the case); Siliga v. Deutsche Bank Nat. Tr. Co., 637 F.
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`App’x 438, 440 (9th Cir. 2016) (“The facts and claims that [plaintiff] wished to add to her complaint
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`were known to her well in advance of the amendment deadline, and she failed to either seek an
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`amendment or ask for an extension of the deadline.”); AmerisourceBergen Corp. v. Dialysist West,
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`Inc., 465 F.3d 946, 953 (9th Cir. 2006) (affirming denial of leave to amend because of 15-month
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`unexplained delay; “even though eight months of discovery remained, requiring the parties to
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`scramble [ . . . ] would have unfairly imposed potentially high, additional litigation costs on [the
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`defendant]”).
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`DPPs provide no explanation of their (lack of) diligence, and no reason for their delay in
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`seeking amendment. This lawsuit was originally filed three and a half years ago. DPPs have already
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`amended their complaint three times. DPPs now seek to amend their complaint a fourth time to
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`allege claims against new individual defendants. DPPs claim information about these individuals
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`was “learned in discovery,” but fail to specify when, and fail to argue this was newly-discovered
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`evidence that was not available previously.
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`(Dallal Decl. ¶¶ 2, 11-17.) This alone is sufficient to
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`deny their motion. See Aircraft Tech. Publishers v. Avantext, Inc., No. C 07-4154 SBA, 2009 U.S.
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`Dist. LEXIS 57671, at *4-6 (N.D. Cal. June 19, 2009) (denying motion to amend where the plaintiff
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`did not specify when it learned it had an additional claim for patent infringement and failed “to
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`explain why it could not have learned of the facts ostensibly supporting its new infringement claim in
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`the year since the filing of the Complaint”); Jacobson v. Persolve, LLC, No. 14-CV-00735-LHK,
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`2015 WL 2061712, at *4 (N.D. Cal. May 1, 2015) (leave to amend should be denied where plaintiff
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`had “actual knowledge of the need to amend her complaint” before amendment deadline, but failed to
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`do so, even though proposed amendments stemmed from information obtained during discovery).
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`Moreover, virtually all of these individuals and proposed amendments have been known or
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`reasonably available to DPPs from the very inception of this litigation, or shortly after the discovery
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`period commenced, as confirmed by DPPs’ own supporting declaration. DPPs have thus waited
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`several years, or at least numerous months, to belatedly seek leave to add these new defendants.
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`Master File No. 3:14-cv-03264-JD
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`5
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`DEFENDANTS’ OPPOSITION TO DPPS’
`MOTION FOR LEAVE TO AMEND COMPLAINT
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`

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`Case 3:14-cv-03264-JD Document 2034 Filed 01/18/18 Page 10 of 24
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` DPPs attest that “[m]ost defendants made their largest productions in the case at or slightly
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`after” October 15, 2015.
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`(Dallal Decl. ¶ 4.) The “[t]otal production DPPs have received to
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`date comprises well over 15 million documents, over 39 million pages, and over eight
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`terabytes in file size.” (Dallal Decl. ¶ 5.)
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` DPPs have taken 80 depositions. (Dallal Decl. ¶ 6.) Plaintiffs took the deposition of Takumi
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`Shimizu on July 11, 2017, more than 6 months ago. (Dallal Decl. ¶ 17.)
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` DPPs have been in direct contact with counsel for Mr. Katsuyama since at least May 8, 2017,
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`more than seven months ago. (Dallal Decl. ¶ 12.)
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` DPPs cite specific dates of meetings allegedly attended by the seven individuals they seek to
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`add as new defendants. (Dallal Decl. ¶¶ 11-17.) DPPs cited many of the exact same meetings
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`(and supporting documents showing the individuals’ attendance) in their class certification
`motion filed in June 2017, nearly 7 months ago. 3
`Accordingly, DPPs, with reasonable diligence, knew or should have known of the individuals
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`and facts supporting amendment months or years before the instant motion. See Lamberth v. Clark
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`Cty. Sch. Dist., 698 F. App’x 387, 389 (9th Cir. 2017) (finding that the plaintiffs “waited five months
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`before taking their first deposition, nearly two months after this amendment deadline. [Plaintiffs] do
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`not explain why they could not have sought discovery or have taken depositions earlier, or why they
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`3
`The following documents correspond to the meeting dates cited in Dallal’s Declaration
`(¶¶ 11-17) and were also cited in DPPs’ motion for class certification filed in June 2017.
` Tonouchi: NICHICON3340644_CT0001, NICHICON3341810_CT0001.
` Katsuyama: HIT00001279, HIT 00002831, MATSUO 00000366, MATSUO 00000384-
`CT002, RUB_000642674_CT0001.
` Yokoyama: RUB_002308600_CT0001, NICHICON0014788_CT0001,
`NICHICON0014788_CT0002, NCC-CAP-00306720_CT0001, RUB_002308600_CT0001.
` Tanaka: NICHICON3340644_CT0001, NICHICON3341810_CT0001,
`NICHICON3341810_CT0001, PAN_0000286_EN, PAN_0000317_CT0001,
`RUB_000006505, HIT00087925_CT0001. (cont’d)
` Aono: HIT00001276, HS00002830, MATSUO 00000366, MATSUO 00000384-CT002.
` Kurata: RUB_002308600_CT0001, NICHICON3341810_CT0001,
`RUB_002308600_CT0001.
` Shimizu: HIT00001277, MATSUO 00000366, PAN_0000317_CT0001, RUB_000006510.
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`Master File No. 3:14-cv-03264-JD
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`6
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`DEFENDANTS’ OPPOSITION TO DPPS’
`MOTION FOR LEAVE TO AMEND COMPLAINT
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`Case 3:14-cv-03264-JD Document 2034 Filed 01/18/18 Page 11 of 24
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`could not seek an extension of the amendment deadline until months after it had passed.”).4 Here,
`DPPs have had access to the bulk of relevant discovery for the last two-and-a half-years. Any delay
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`in identifying relevant parties has resulted solely from DPPs’ lack of diligence and failure to timely
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`review the document productions.
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`In any event, DPPs did in fact have direct knowledge of these individuals well before they
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`filed the instant motion.
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` Plaintiffs identified Takumi Shimizu and Kenzaburo Kurata as potential Matsuo document
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`custodians as early as May 18, 2015, over two and half years ago. (Lau Decl. ¶ 2, Ex. A.)
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` Mr. Shimizu is a document custodian in this case and his custodial documents and ESI were
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`produced to Plaintiffs on October 1, 2015, over two years ago. (Lau Decl. ¶ 3.)
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` Plaintiffs requested deposition dates for Mr. Shimizu and Mr. Kurata on March 6, 2017, over
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`10 months ago, and Mr. Shimizu was deposed on July 11, 2017. (Lau Decl. ¶ 4, Ex. B.)
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` Plaintiffs also deposed other Matsuo witnesses, including as early as May 26, 2016, when
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`Satoshi Okubo was deposed and Mr. Dallal asked questions that referenced Mr. Shimizu, his
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`title and role at the company. (Lau Decl. ¶ 5, Ex. C.)
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` DPPs identified Shuichi Katsuyama as the Director-President of Rubycon Corporation and
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`requested him as a document custodian in a letter to Rubycon dated May 18, 2015 (Ex. D)—
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`31 months ago. Mr. Katsuyama is a document custodian in this case and significant
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`productions of his files have been in DPPs’ possession for over two years.
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`
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`In their Initial Disclosures on February 13, 2015, the DPPs listed Hidetoshi Aono and Shingo
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`Tanaka as individuals they had ascertained were likely to have relevant information. See
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`Direct Purchaser Plaintiffs’ Amended Initial Disclosures, No. 3:14-v-03264-JD (Feb. 13.
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`2015); (Megaw Decl. ¶ 3, Ex. A.)
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` Hidetoshi Aono and Shingo Tanaka were discussed in June 2015 as custodians for relevant
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`email. (Megaw Decl. ¶ 4, Ex. B.)
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`4
`DPPs have never sought to modify the deadline to amend — even though the parties just
`negotiated and submitted a revised scheduling order on October 19, 2017 (ECF. No. 1907).
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`Master File No. 3:14-cv-03264-JD
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`7
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`DEFENDANTS’ OPPOSITION TO DPPS’
`MOTION FOR LEAVE TO AMEND COMPLAINT
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`Case 3:14-cv-03264-JD Document 2034 Filed 01/18/18 Page 12 of 24
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` Elna also identified Hidetoshi Aono on August 26, 2016 in Elna’s First Supplementary
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`Response to DPP’s Third Set of Interrogatories. (Megaw Decl. ¶ 5, Ex. C.) And, Hidetoshi
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`Aono was also identified as Elna’s president at the deposition of Hirokuyi Imai on August 30,
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`2016. (Megaw Decl. ¶ 6, Ex. D.)
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` Elna identified Shingo Tanaka in its Second Supplementary Response to DPP’s Third Set of
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`Interrogatories on July 5, 2017. (Megaw Decl. ¶ 7, Ex. E.)
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` Akio Yokoyama was
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`identified in Elna documents produced on July 7, 2016
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`(ELNA_NDCAL-00469689 and ELNA_NDCAL-00469642). (Megaw Decl. ¶ 8, Ex. F.)
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`In short, DPPs had knowledge of these individuals long before seeking leave to amend, yet have
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`provided no explanation for their lengthy delay. DPPs have not explained why they did not seek
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`leave to amend during the past three years or why they did not avail themselves of the opportunity to
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`add these defendants during their three prior amendments.
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`Indeed, DPPs’ only justification for belatedly seeking leave to amend is,
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`they claim,
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`Defendants’ “risk of financial insolvency.”
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`(Dallal Decl. ¶ 9.) However, Defendants’ financial
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`condition and representations about their inability to pay criminal fines are in the public record and
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`have been available to DPPs for months. DPPs’ alleged concerns about Defendants’ potential
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`insolvency does not justify their belated attempt to introduce a completely new cast of characters to
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`this case, nor would adding several retired and elderly Japanese individuals alleviate DPPs’ concern.
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`The court in Palana v. Mission Bay Inc., No. 13-CV-05235-SI, 2016 WL 107487, at *4 (N.D. Cal.
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`Jan. 11, 2016), recently rejected precisely that argument. The Palana court denied leave to add new
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`parties because “[the plaintiffs] offer no credible explanation for their delay in seeking to add these
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`new defendants,” one of which was deposed by the plaintiffs.
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`Id. The court rejected evidence of
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`ability-to-pay issues where “plaintiffs indicate that it was not the delay in discovering the [new
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`parties’] status but rather recent concerns about the corporate defendants’ finances that prompted
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`plaintiffs to seek to add the [new parties].” Id. The Palana court found that the potential new
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`defendants themselves were prejudiced because those new defendants “have not had the opportunity
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`to defend themselves at class certification or at any prior stage of this case.” Id.
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`Master File No. 3:14-cv-03264-JD
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`8
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`DEFENDANTS’ OPPOSITION TO DPPS’
`MOTION FOR LEAVE TO AMEND COMPLAINT
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`

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`Case 3:14-cv-03264-JD Document 2034 Filed 01/18/18 Page 13 of 24
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`Likewise, here, DPPs offer no credible explanation for their lengthy delay in seeking
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`amendment, and their concerns about Defendants’ solvency do not provide a valid basis to amend.
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`Defendants Will Suffer Substantial Prejudice If DPPs’ Motion Is Granted.
`B.
`On the eve of the class discovery cutoff, with summary judgment and class certification
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`motions pending, DPPs now attempt to add seven new defendants and one new plaintiff to the case.
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`It is remarkable that DPPs can represent that there is no possible prejudice to Defendants by allowing
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`amendment to add eight new parties, over three years after they first filed suit. DPPs’ proposed
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`amendments would unduly burden and prejudice Defendants, and should be rejected.
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`Amendment results in prejudice where a defendant would be forced to participate in
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`additional discovery, adding to the costs of preparation and increasing the burden of litigation.
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`Osakan v. Apple Am. Grp., No. C 08-4722 SBA, 2010 U.S. Dist. LEXIS 53830, *13 (N.D. Cal. May
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`3, 2010) (“Prejudice is a significant consideration under both Rule 16(b) and Rule 15(a).”); see also
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`Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (affirming denial of leave to
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`amend where plaintiff sought amendment only five days before close of discovery and amendment
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`would delay proceedings and prejudice defendant); Solomon v. N. Am. Life & Cas. Ins. Co., 151 F.3d
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`1132, 1139 (9th Cir. 1998) (affirming denial of leave to amend where plaintiff sought amendment
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`“on the eve of the d