HONORABLE RICHARD A. JONES 1
6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 BLUETOOTH SIG, INC., a Delaware 9 corporation, 10 Case No. 2:18-cv-01493-RAJ Plaintiff,
11 ORDER v.
12 FCA US LLC, a Delaware limited liability 13 company, 14 Defendant. 15 16 I. INTRODUCTION 17 Before the Court are three motions. Having considered the submissions of the 18 parties, the relevant portions of the record, and the applicable law, the Court finds that 19 oral argument is unnecessary. For the reasons below, Plaintiff’s Motion to Exclude the 20 Expert Report and Testimony of David T. Neal (Dkt. # 57) is DENIED; Defendant’s 21 Motion to Exclude Christopher Gerardi’s Testimony and Opinions (Dkt. # 151) is 22 GRANTED in part and DENIED in part; and Defendant’s Motion to Exclude Michal 23 Malkiewicz (Dkt. # 152) is DENIED. 24 Two preliminary matters: First, in ruling on the parties’ cross motions for 25 summary judgment, the Court summarized the facts of this case. Dkt. # 202. To avoid 26 duplication, the Court refers the parties to that order for background information. 27 Second, Defendant’s counsel should rethink their use of footnotes. The Court strongly 1 disfavors footnoted legal citations, which serve as an end-run around page limits and 2 formatting requirements dictated by the Local Rules. See Local Rules W.D. Wash. LCR 3 7(e). Moreover, several courts have observed that “citations are highly relevant in a legal 4 brief” and including them in footnotes “makes brief-reading difficult.” Wichansky v. 5 Zowine, No. CV-13-01208-PHX-DGC, 2014 WL 289924, at *1 n.1 (D. Ariz. Jan. 24, 6 2014). The Court strongly discourages the parties from footnoting their legal citations in 7 any future submissions. See Kano v. Nat’l Consumer Co-op Bank, 22 F.3d 899-900 (9th 8 Cir. 1994). 9 II. LEGAL STANDARD 10 The admissibility of expert opinions is guided by Federal Rule of Evidence 702, 11 which in part states that an expert by “knowledge, skill, experience, training or education 12 may testify in the form of an opinion or otherwise if . . . the expert’s scientific, technical 13 or other specialized knowledge will help the trier of fact to understand the evidence or to 14 determine a fact in issue.” Fed. R. Evid. 702. A trial court must ensure that an expert’s 15 testimony “both rests on a reliable foundation and is relevant to the task at hand.” 16 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993). The testimony is 17 reliable “if the knowledge underlying it has a reliable basis in the knowledge and 18 experience of the relevant discipline,” and it is relevant “if the knowledge underlying it 19 has a valid connection to the pertinent inquiry.” Primiano v. Cook, 598 F.3d 558, 565 20 (9th Cir. 2010) (quoting United States v. Sandoval–Mendoza, 472 F.3d 645, 654 (9th Cir. 21 2006)). “Shaky but admissible evidence” is to be attacked by “[v]igorous cross- 22 examination, presentation of contrary evidence, and careful instruction on the burden of 23 proof,” not exclusion. Daubert, 509 U.S. at 596. 24 III. DISCUSSION 25 Plaintiff Bluetooth SIG, Inc. (“Bluetooth”) moves to exclude the report and 26 testimony of David T. Neal, an expert offered by Defendant FCA US LLC (“FCA”). 27 Dkt. # 57. Based on a survey that he conducted, Mr. Neal concludes that FCA’s use of 1 the word “Bluetooth” does not make consumers more likely to buy an FCA vehicle. Id. 2 at 6. On the other hand, FCA moves to exclude the testimony of Bluetooth’s experts, 3 Christopher P. Gerardi and Michal A. Malkiewicz. Dkt. ## 151, 152. Mr. Gerardi opines 4 on the amount that FCA may owe if Bluetooth succeeds, and Mr. Malkiewicz, a rebuttal 5 expert, cites several deficiencies in Mr. Neal’s survey. The Court analyzes each motion 6 in turn. 7 A. David T. Neal 8 To “isolate the value that likely purchasers of FCA vehicles place” on the 9 BLUETOOTH word mark, Mr. Neal designed and executed a national survey. Dkt. 10 # 158-7 at 218. The purpose of the survey was to measure the value that consumers place 11 on the BLUETOOTH word mark against the value that they place on the underlying 12 “functionality enabled by the technology.” Id. at 220. 13 To that end, Mr. Neal surveyed how different consumers responded to different 14 Monroney labels. Id. at 219. Monroney labels, or “window stickers,” list specifications 15 about a given vehicle and must be displayed on a new vehicle displayed for sale. Id. at 16 219. About half the survey respondents were randomly assigned and shown the standard 17 Monroney label for the Jeep Grand Cherokee Limited (“Grand Cherokee”). Id. The 18 standard Monroney label served as the “Test Condition” and listed as a feature 19 “Integrated Voice Command with Bluetooth.” Id. (emphasis added). The remaining 20 respondents were shown the “Control Condition,” which was the same Monroney label 21 but with alternate wording, “Integrated Voice Command with Wireless Smartphone 22 Connectivity.” Id. (emphasis added). The survey then asked all respondents whether 23 they would be willing to buy the Grand Cherokee at various prices, beginning with the 24 manufacturer’s suggested retail price and offering several discounts from there. Id. at 25 221. Analyzing the results of the survey, Mr. Neal concludes that “use of the term 26 ‘Bluetooth’ in describing the wireless smartphone capability of an FCA vehicle does not 27 cause any consumers to be more likely to buy an FCA vehicle at full price . . . [or at] a 1 discount.” Id. at 224. 2 Bluetooth argues that this survey, its accompanying report, and Mr. Neal’s 3 testimony should be excluded. Dkt. # 57. Bluetooth says that the term “wireless 4 smartphone connectivity” is “completely ambiguous,” that the Grand Cherokee is not a 5 representative sample of all FCA vehicles, and that the survey does not replicate 6 marketplace conditions. Id. at 8-15. These flaws, Bluetooth says, warrant exclusion 7 under Rules 702 and 403 of the Federal Rules of Evidence. Id. at 15. 8 The Ninth Circuit has long held that survey evidence should be admitted “as long 9 as [it is] conducted according to accepted principles and [is] relevant.” Fortune 10 Dynamic, Inc. v. Victoria’s Secret Stores Brand Mgmt., Inc., 618 F.3d 1025, 1036 (9th 11 Cir. 2010) (alterations in original) (quoting Wendt v. Host Int’l, Inc., 125 F.3d 806, 814 12 (9th Cir. 1997)). “Challenges to survey methodology go to the weight given [to] the 13 survey, not its admissibility.” Wendt, 125 F.3d at 814. This includes challenges to 14 “methodology, survey design, reliability, the experience and the reputation of the expert, 15 critique of conclusions, and the like.” Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 16 1252, 1263 (9th Cir. 2001). 17 Because Mr. Neal’s survey is reliable and relevant, it will not be excluded. Mr. 18 Neal used a “direct survey,” which he contended is a “staple[] in the academic literature” 19 and “appear[s] routinely in the pages of top peer-reviewed scholarly journals.” Dkt. 20 # 158-7 at 219. Bluetooth does not contest that. Thus, the survey was reliable as it was 21 conducted using accepted principles.
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HONORABLE RICHARD A. JONES 1
6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 BLUETOOTH SIG, INC., a Delaware 9 corporation, 10 Case No. 2:18-cv-01493-RAJ Plaintiff,
11 ORDER v.
12 FCA US LLC, a Delaware limited liability 13 company, 14 Defendant. 15 16 I. INTRODUCTION 17 Before the Court are three motions. Having considered the submissions of the 18 parties, the relevant portions of the record, and the applicable law, the Court finds that 19 oral argument is unnecessary. For the reasons below, Plaintiff’s Motion to Exclude the 20 Expert Report and Testimony of David T. Neal (Dkt. # 57) is DENIED; Defendant’s 21 Motion to Exclude Christopher Gerardi’s Testimony and Opinions (Dkt. # 151) is 22 GRANTED in part and DENIED in part; and Defendant’s Motion to Exclude Michal 23 Malkiewicz (Dkt. # 152) is DENIED. 24 Two preliminary matters: First, in ruling on the parties’ cross motions for 25 summary judgment, the Court summarized the facts of this case. Dkt. # 202. To avoid 26 duplication, the Court refers the parties to that order for background information. 27 Second, Defendant’s counsel should rethink their use of footnotes. The Court strongly 1 disfavors footnoted legal citations, which serve as an end-run around page limits and 2 formatting requirements dictated by the Local Rules. See Local Rules W.D. Wash. LCR 3 7(e). Moreover, several courts have observed that “citations are highly relevant in a legal 4 brief” and including them in footnotes “makes brief-reading difficult.” Wichansky v. 5 Zowine, No. CV-13-01208-PHX-DGC, 2014 WL 289924, at *1 n.1 (D. Ariz. Jan. 24, 6 2014). The Court strongly discourages the parties from footnoting their legal citations in 7 any future submissions. See Kano v. Nat’l Consumer Co-op Bank, 22 F.3d 899-900 (9th 8 Cir. 1994). 9 II. LEGAL STANDARD 10 The admissibility of expert opinions is guided by Federal Rule of Evidence 702, 11 which in part states that an expert by “knowledge, skill, experience, training or education 12 may testify in the form of an opinion or otherwise if . . . the expert’s scientific, technical 13 or other specialized knowledge will help the trier of fact to understand the evidence or to 14 determine a fact in issue.” Fed. R. Evid. 702. A trial court must ensure that an expert’s 15 testimony “both rests on a reliable foundation and is relevant to the task at hand.” 16 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993). The testimony is 17 reliable “if the knowledge underlying it has a reliable basis in the knowledge and 18 experience of the relevant discipline,” and it is relevant “if the knowledge underlying it 19 has a valid connection to the pertinent inquiry.” Primiano v. Cook, 598 F.3d 558, 565 20 (9th Cir. 2010) (quoting United States v. Sandoval–Mendoza, 472 F.3d 645, 654 (9th Cir. 21 2006)). “Shaky but admissible evidence” is to be attacked by “[v]igorous cross- 22 examination, presentation of contrary evidence, and careful instruction on the burden of 23 proof,” not exclusion. Daubert, 509 U.S. at 596. 24 III. DISCUSSION 25 Plaintiff Bluetooth SIG, Inc. (“Bluetooth”) moves to exclude the report and 26 testimony of David T. Neal, an expert offered by Defendant FCA US LLC (“FCA”). 27 Dkt. # 57. Based on a survey that he conducted, Mr. Neal concludes that FCA’s use of 1 the word “Bluetooth” does not make consumers more likely to buy an FCA vehicle. Id. 2 at 6. On the other hand, FCA moves to exclude the testimony of Bluetooth’s experts, 3 Christopher P. Gerardi and Michal A. Malkiewicz. Dkt. ## 151, 152. Mr. Gerardi opines 4 on the amount that FCA may owe if Bluetooth succeeds, and Mr. Malkiewicz, a rebuttal 5 expert, cites several deficiencies in Mr. Neal’s survey. The Court analyzes each motion 6 in turn. 7 A. David T. Neal 8 To “isolate the value that likely purchasers of FCA vehicles place” on the 9 BLUETOOTH word mark, Mr. Neal designed and executed a national survey. Dkt. 10 # 158-7 at 218. The purpose of the survey was to measure the value that consumers place 11 on the BLUETOOTH word mark against the value that they place on the underlying 12 “functionality enabled by the technology.” Id. at 220. 13 To that end, Mr. Neal surveyed how different consumers responded to different 14 Monroney labels. Id. at 219. Monroney labels, or “window stickers,” list specifications 15 about a given vehicle and must be displayed on a new vehicle displayed for sale. Id. at 16 219. About half the survey respondents were randomly assigned and shown the standard 17 Monroney label for the Jeep Grand Cherokee Limited (“Grand Cherokee”). Id. The 18 standard Monroney label served as the “Test Condition” and listed as a feature 19 “Integrated Voice Command with Bluetooth.” Id. (emphasis added). The remaining 20 respondents were shown the “Control Condition,” which was the same Monroney label 21 but with alternate wording, “Integrated Voice Command with Wireless Smartphone 22 Connectivity.” Id. (emphasis added). The survey then asked all respondents whether 23 they would be willing to buy the Grand Cherokee at various prices, beginning with the 24 manufacturer’s suggested retail price and offering several discounts from there. Id. at 25 221. Analyzing the results of the survey, Mr. Neal concludes that “use of the term 26 ‘Bluetooth’ in describing the wireless smartphone capability of an FCA vehicle does not 27 cause any consumers to be more likely to buy an FCA vehicle at full price . . . [or at] a 1 discount.” Id. at 224. 2 Bluetooth argues that this survey, its accompanying report, and Mr. Neal’s 3 testimony should be excluded. Dkt. # 57. Bluetooth says that the term “wireless 4 smartphone connectivity” is “completely ambiguous,” that the Grand Cherokee is not a 5 representative sample of all FCA vehicles, and that the survey does not replicate 6 marketplace conditions. Id. at 8-15. These flaws, Bluetooth says, warrant exclusion 7 under Rules 702 and 403 of the Federal Rules of Evidence. Id. at 15. 8 The Ninth Circuit has long held that survey evidence should be admitted “as long 9 as [it is] conducted according to accepted principles and [is] relevant.” Fortune 10 Dynamic, Inc. v. Victoria’s Secret Stores Brand Mgmt., Inc., 618 F.3d 1025, 1036 (9th 11 Cir. 2010) (alterations in original) (quoting Wendt v. Host Int’l, Inc., 125 F.3d 806, 814 12 (9th Cir. 1997)). “Challenges to survey methodology go to the weight given [to] the 13 survey, not its admissibility.” Wendt, 125 F.3d at 814. This includes challenges to 14 “methodology, survey design, reliability, the experience and the reputation of the expert, 15 critique of conclusions, and the like.” Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 16 1252, 1263 (9th Cir. 2001). 17 Because Mr. Neal’s survey is reliable and relevant, it will not be excluded. Mr. 18 Neal used a “direct survey,” which he contended is a “staple[] in the academic literature” 19 and “appear[s] routinely in the pages of top peer-reviewed scholarly journals.” Dkt. 20 # 158-7 at 219. Bluetooth does not contest that. Thus, the survey was reliable as it was 21 conducted using accepted principles. Further, the value of the BLUETOOTH word mark 22 (one of three marks at the center of this case) is pertinent to Bluetooth’s trademark 23 infringement claims and is therefore relevant. For those reasons, the survey should be 24 admitted above Bluetooth’s objections. At most, the survey’s alleged flaws of ambiguity, 25 unrepresentative sampling, and unrealistic marketplace assumptions are “technical 26 inadequacies” that “bear on the weight of the evidence, not its admissibility.” Fortune, 27 618 F.3d at 1036 (quoting Keith v. Volpe, 858 F.2d 467, 480 (9th Cir. 1988)). 1 Bluetooth suggests, however, that Mr. Neal’s use of “completely ambiguous 2 language” is not a technical flaw but a fatal one. Dkt. # 57 at 8. In short, because Mr. 3 Neal did not ask respondents if they knew what “wireless smartphone connectivity” 4 meant, they could have believed that the term in fact included Bluetooth technology. Id. 5 at 9. For example, a respondent presented with the Control Condition (the Monroney 6 label saying “Integrated Voice Command with Wireless Smartphone Connectivity”) 7 could have believed that the Grand Cherokee being offered was in fact equipped with 8 Bluetooth technology. If that were the case, Bluetooth surmises, the survey would have 9 simply “compar[ed] BLUETOOTH to BLUETOOTH and [the] survey results [would be] 10 completely meaningless.” Id. 11 But Bluetooth confuses the value of the BLUETOOTH word mark with the value 12 of the underlying technology itself. Dkt. # 93 at 11. Mr. Neal’s survey tested whether 13 consumers placed a premium on “Bluetooth” the word—not Bluetooth the technology. 14 Put differently, Mr. Neal was not measuring whether Bluetooth technology made a 15 consumer more willing to buy an FCA vehicle: he was measuring whether the word 16 “Bluetooth” made a consumer more willing to buy an FCA vehicle. Mr. Neal’s survey 17 appears to do just that by comparing the word “Bluetooth” against the phrase “wireless 18 smartphone connectivity.” Thus, Bluetooth’s claimed ambiguity would have been 19 harmless (or at the very least, non-fatal) to the results of the survey. 20 For these reasons, Bluetooth’s motion to exclude Mr. Neal’s report and testimony 21 is DENIED. 22 B. Christopher P. Gerardi 23 Mr. Gerardi, Bluetooth’s damages expert, rendered an initial and supplemental 24 report opining on the amounts that Bluetooth may be entitled to in the way of (1) actual 25 damages and (2) disgorgement of profits. Dkt. # 158-7 at 86-92, 328-33. In calculating 26 these amounts, Mr. Gerardi relied on representations that he received from the parties and 27 explained the assumptions that his calculations were based on. See, e.g., id. at 329-32. 1 His testimony is both reliable and relevant. It is reliable because Mr. Gerardi applied 2 basic accounting principles—indeed, as FCA puts it, “simple arithmetic” or “elementary 3 mathematical calculations.” Dkt. # 151 at 10-11. The Court has no reason to believe 4 that, given Mr. Gerardi’s stated assumptions, his calculations are incorrect. And his 5 testimony is no doubt relevant as his calculations bear on Bluetooth’s requested relief. 6 Though reliable and relevant, Mr. Gerardi’s actual damages calculations are based 7 on information that Bluetooth received during settlement negotiations. To calculate 8 actual damages, Mr. Gerardi was “advised by counsel” to assume that FCA, had it been a 9 Bluetooth member, would have had to file a specific number of declarations for its 10 Bluetooth-enabled vehicles. Dkt. # 158-7 at 329-30. Bluetooth’s counsel, however, 11 received that specified number as an estimate from FCA during settlement negotiations. 12 Dkt. # 171 at 6; see also Dkt. # 174-2. This information falls squarely under Rule 408 of 13 the Federal Rules of Evidence, which deems inadmissible a “statement made during 14 compromise negotiations” to “prove or disprove the validity or amount of a disputed 15 claim.” Fed. R. Evid. 408. Thus, to the extent that it relies on information received as 16 part of settlement negotiations, Mr. Gerardi’s testimony on actual damages must be 17 excluded. 18 As for disgorgement of profits, FCA argues that the Court should limit Mr. 19 Gerardi’s testimony. Dkt. # 151 at 12-13. According to FCA, Mr. Gerardi assumed that 20 there was “no temporal limitation to the profits that may be disgorged,” and he 21 accordingly used 2004 as a starting point for his calculations. Id. But laches, FCA says, 22 limits Bluetooth’s recovery to the applicable statute of limitations period, and thus Mr. 23 Gerardi’s calculations should have begun in 2015. Id. The Court will not limit Mr. 24 Gerardi’s testimony. As the Court explained in its summary judgment order, laches may 25 bar all monetary recovery. Dkt. # 202 at 27 (“The affirmative defense of laches ‘is an 26 equitable time limitation on a party’s right to bring suit . . . .’”) (quoting Eat Right Foods 27 Ltd. v. Whole Foods Mkt., Inc., 880 F.3d 1109, 1115 (9th Cir. 2018)) (emphasis added). 1 If FCA indeed prevails on its laches defense, then there would be no need for a “temporal 2 limitation” on Mr. Gerardi’s calculations because there would be no disgorgement of 3 profits in the first place. In any event, FCA is free to address any shortcomings in Mr. 4 Gerardi’s calculations on cross-examination. 5 For these reasons, Bluetooth’s motion to exclude and limit Mr. Gerardi’s 6 testimony is GRANTED in part and DENIED in part. Mr. Gerardi’s testimony is 7 excluded to the extent that it relies on information protected by Rule 408 of the Federal 8 Rules of Evidence. 9 C. Michal A. Malkiewicz 10 To rebut Mr. Neal’s survey testimony, Bluetooth engaged an expert of its own, 11 Michael A. Malkiewicz. Dkt. # 159 at 4. Mr. Malkiewicz argued that Mr. Neal’s survey 12 was flawed and unreliable for many reasons: it did not consider that two of the three 13 marks were certification marks, it suffered from “critical sampling issues,” and it failed to 14 “replicate the marketplace environment of the vehicle purchasing process,” to name a 15 few. Dkt. # 158-7 at 365. In all, Mr. Malkiewicz concludes that Mr. Neal’s analysis is 16 “of no use to the question of value of the [BLUETOOTH Marks] . . . [and] of no use in 17 separating out a portion of FCA’s sales or profits, if any, that is unrelated to FCA’s 18 alleged uses of the [BLUETOOTH Marks].” Id. at 366. 19 To start, Mr. Malkiewicz’s testimony appears reliable and relevant. Mr. 20 Malkiewicz has experience in and knowledge of survey research methods and marketing 21 analytics. And he uses that experience and knowledge to undermine Mr. Neal’s 22 conclusions about the value of the BLUETOOTH Marks, a central issue in this case. 23 Despite that, FCA asks the Court to exclude Mr. Malkiewicz for three reasons: he is 24 unqualified, his opinions are unreliable, and his opinions would mislead a trier of fact. 25 First, according to FCA, Mr. Malkiewicz is not an expert “in the area of trademark 26 litigation surveys” but rather is an economist specializing in damages assessments. Dkt. 27 # 152 at 9. As such, FCA says, he is ill-equipped to critique Mr. Neal’s trademark 1 survey. Id. But an economist may also be trained in survey research methods, as Mr. 2 Malkiewicz is. He was a survey research professional at the National Opinion Research 3 Center and has a certificate in marketing analytics from the University of Chicago. Dkt. 4 # 158-7 at 405, 409. He has also studied graduate-level statistics and survey research 5 methods at Johns Hopkins University. Dkt. # 150 at 5. This is enough to lay at least the 6 “minimal foundation of knowledge, skill, and experience required in order to give 7 ‘expert’ testimony” as to survey design and methodology. Thomas v. Newton Int’l 8 Enterprises, 42 F.3d 1266, 1269-70 (9th Cir. 1994) (holding that Federal Rule of 9 Evidence 702 “contemplates a broad conception of expert qualifications” and is “broadly 10 phrased and intended to embrace more than a narrow definition of a qualified expert”). 11 Next, FCA argues that Mr. Malkiewicz’s report and testimony do not rest on a 12 reliable foundation: He did not conduct a survey of his own to show that his criticisms 13 would have changed Mr. Neal’s results. Dkt. # 152 at 12. He did not fully read some of 14 the materials that he relied on. Id. at 13. And other materials, he conceded, lacked basis 15 in any data or relied on data sourced from a survey conducted abroad. Id. 16 But these are deficiencies fit for cross-examination, not exclusion. Mr. 17 Malkiewicz had no obligation to conduct a survey of his own. And the “factual basis of 18 an expert opinion goes to the credibility of the testimony, not the admissibility, and it is 19 up to the opposing party to examine the factual basis for the opinion in cross- 20 examination.” In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales 21 Practices, & Prod. Liab. Litig., 978 F. Supp. 2d 1053, 1069 (C.D. Cal. 2013) (citing 22 Hartley v. Dillard’s, Inc., 310 F.3d 1054, 1061 (8th Cir. 2002)). FCA’s critiques of Mr. 23 Malkiewicz’s report may be persuasive and may even reduce the weight that a trier of 24 fact gives to it, but the Court holds that this is no reason for exclusion. 25 Finally, FCA argues that Mr. Malkiewicz’s report and testimony should be 26 excluded because they would confuse a trier of fact. Dkt. # 152 at 15. The Court 27 disagrees. FCA’s list of Mr. Malkiewicz’s deficiencies is copious, but it is not confusing. 1 For these reasons, Bluetooth’s motion to exclude Mr. Malkiewicz is DENIED. 2 IV. CONCLUSION 3 For the reasons stated above, the Court DENIES Plaintiff’s Motion to Exclude the 4 Expert Report and Testimony of David T. Neal (Dkt. # 57); GRANTS in part and 5 DENIES in part Defendant’s Motion to Exclude Christopher Gerardi’s Testimony and 6 Opinions (Dkt. # 151); and DENIES Defendant’s Motion to exclude Michal Malkiewicz 7 (Dkt. # 152). 8 DATED this 24th day of June, 2020.
9 A 10
11 The Honorable Richard A. Jones 12 United States District Judge 13
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