Sumotext Corp. -v- Zoove, Inc.

Opinion

1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 SAN JOSE DIVISION 5 6 SUMOTEXT CORP., Case No. 16-cv-01370-BLF

7 Plaintiff, ORDER DENYING PLAINTIFF’S 8 v. DAUBERT MOTIONS RE DEFENSE EXPERTS DR. DEBRA ARON AND 9 ZOOVE, INC., dba STARSTAR MOBILE; GREG J. REGAN VIRTUAL HOLD TECHNOLOGY, LLC; 10 STARSTEVE, LLC; and VHT STARSTAR [Re: ECF 339-4, 347-4] LLC, 11 Defendants. 12

13 14 Jury selection in this antitrust case is scheduled to commence on February 21, 2020. In 15 preparation for trial, Plaintiff Sumotext Corporation has filed Daubert motions with respect to 16 certain opinions offered by Dr. Debra Aron and Greg J. Regan, experts retained by Defendants 17 Zoove, Inc., Virtual Hold Technology, LLC, and VHT StarStar LLC (“Defendants”).1 Following 18 completion of the briefing, the Court vacated the December 12, 2019 hearing and took the motions 19 under submission without oral argument. 20 The motions are DENIED for the reasons discussed below. 21 I. LEGAL STANDARD 22 Federal Rule of Evidence 702 provides that a qualified expert may testify if “(a) the 23 expert’s scientific, technical, or other specialized knowledge will help the trier of fact to 24 understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient 25 facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert 26 has reliably applied the principles and methods to the facts of the case.” Fed. R. Evid. 702. 27 1 In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993), the Supreme 2 Court held that Rule 702 requires the district court to act as a gatekeeper to “ensure that any and 3 all scientific testimony or evidence admitted is not only relevant, but reliable.” The Supreme 4 Court discussed four factors that may be used to determine reliability: (1) whether the theory or 5 technique used by the expert “can be (and has been) tested”; (2) “whether the theory or technique 6 has been subjected to peer review and publication”; (3) “the known or potential rate of error”; and 7 (4) whether there is “general acceptance” of the theory or technique in the “relevant scientific 8 community.” Id. at 593-94; see also Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457, 463 9 (9th Cir. 2014) (reciting factors). 10 In Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999), the Supreme Court 11 clarified that the “basic gatekeeping obligation” articulated in Daubert applies not only to 12 scientific testimony but to all expert testimony. The Supreme Court also made clear that the 13 reliability inquiry is a flexible one, and “whether Daubert’s specific factors are, or are not, 14 reasonable measures of reliability in a particular case is a matter that the law grants the trial judge 15 broad latitude to determine.” Id. at 153. 16 The Ninth Circuit has emphasized that “[u]nder Daubert, the district judge is a gatekeeper, 17 not a fact finder.” Primiano v. Cook, 598 F.3d 558, 564-65 (9th Cir. 2010) (internal quotation 18 marks and citation omitted). “When an expert meets the threshold established by Rule 702 as 19 explained in Daubert, the expert may testify and the jury decides how much weight to give that 20 testimony.” Id. at 565. “Shaky but admissible evidence is to be attacked by cross examination, 21 contrary evidence, and attention to the burden of proof, not exclusion.” Id. at 564. 22 II. DISCUSSION 23 Dr. Debra Aron is an antitrust expert retained by Defendants to respond to the opinions of 24 Sumotext’s antitrust expert, Dr. Ryan Sullivan. Dr. Aron received a Ph.D. in economics from the 25 University of Chicago in 1985, with honors. Aron Report ¶ 3, Exh. 1 to Kesselman Decl. She is a 26 vice president at Charles Rivers Associates, an international economics and finance consulting 27 firm that provides economic expertise for litigation, regulatory proceedings, policy debates, and 1 Greg J. Regan is a damages expert retained by Defendants to respond to the opinions of 2 Sumotext’s damages expert, Dr. Alan G. Goedde. Mr. Regan is a certified public accountant, 3 licensed in California and New York. Regan Report ¶ 8, Exh. 2 to Stockinger Decl. He has 4 worked as an auditor at Ernst & Young LLP, as the controller of a publicly traded company, and 5 as a consultant. Id. ¶ 9. Mr. Regan has worked on many complex litigation matters, analyzing lost 6 business value, lost profits, and other forms of economic damage involving entities in the tech 7 industry, retail, health care, and real estate. Id. 8 Sumotext does not challenge these experts as unqualified to give their respective opinions, 9 and the Court finds that Dr. Aron and Mr. Regan are qualified in their respective fields. Sumotext 10 challenges certain of these rebuttal experts’ opinions as lacking in foundation and/or based on 11 unsound methodology. The Court notes that Sumotext’s challenges are not framed in terms of the 12 four factors discussed in Daubert. However, it does not appear that the Daubert factors would be 13 a particularly good fit in this case, given the nature of the opinions offered by Dr. Aron and Mr. 14 Regan. The Court therefore conducts the flexible inquiry mandated under Daubert and its 15 progeny by determining whether Sumotext’s asserted bases for exclusion are sufficient to show 16 that challenged opinions fail to meet the threshold established by Rule 702. 17 A. Motion to Exclude Certain Opinions of Dr. Debra Aron 18 Sumotext objects to two aspects of Dr. Aron’s opinions. First, Sumotext argues that Dr. 19 Aron opines on the scope of the relevant markets in this case but has not performed the necessary 20 foundational market analysis to offer such opinions. Second, Sumotext argues that Dr. Aron’s 21 opinions regarding application of the “single monopoly profit” theory must be excluded, on the 22 basis that Dr. Aron has not undertaken a market analysis and or defined a relevant market. In 23 response, Defendants argue that Dr. Aron appropriately criticizes the market definitions offered by 24 Sumotext’s expert, Dr. Sullivan, and that Dr. Aron – a rebuttal expert – need not offer her own 25 market definitions in order to offer such criticism. Defendants also argue that Dr. Aron properly 26 applies the single monopoly profit critique to Dr. Sullivan’s market definition, and that she need 27 not offer her own market definition to do so. 1 1. Dr. Aron’s Criticisms of Dr. Sullivan’s Market Definitions 2 Sumotext’s antitrust expert, Dr. Sullivan, opines that there are two relevant markets in this 3 case: the market for leasing StarStar numbers in the United States, and the market for servicing 4 StarStar numbers in the United States. See Pl.’s Motion at p.3 n.1, ECF 347-4; Aron Report ¶¶ 12, 5 43, Exh. 1 to Kesselman Decl. Dr. Aron criticizes Dr. Sullivan’s market definitions, stating that 6 “[h]e not only failed to demonstrate the existence of a distinct market for StarStar numbers; he 7 also failed to provide any fact-based economic analysis that could demonstrate the existence of 8 such a market.” Aron Report ¶ 1, Exh. 1 to Kesselman Decl. Sumotext contends that Dr. Aron 9 not only criticizes Dr. Sullivan’s market definitions but also offers her own affirmative market 10 definitions without laying a foundation for doing so. In response, Defendants argue that Dr. 11 Aron’s criticisms of Dr. Sullivan’s market definitions constitute proper rebuttal opinions. The 12 Court agrees with Defendants for the reasons discussed below. 13 In her report, Dr. Aron cites a number of sources, including deposition testimony and 14 industry publications, indicating that StarStar number technology is one of several direct 15 marketing channels that marketers can use to reach potential consumers. Aron Report ¶¶ 13-15, 16 27-35, Exh. 1 to Kesselman Decl. She observes that the record evidence shows that direct 17 marketing channels available to advertisers include toll-free phone numbers, vanity 10-digit phone 18 numbers, mobile short codes, text messages, Quick Response (“QR”) codes, and search engine 19 optimization (“SEO”). Id. Dr. Aron opines that “[a]s an economic matter, the goals and perceived 20 strengths and weaknesses of each marketing tool (including the return on investment perceived by 21 the marketer) would determine the extent to which marketers may treat each as a suitable 22 economic substitute for other means to reach their targeted audience.” Id. ¶ 31. 23 Dr. Aron opines that Dr. Sullivan has not given adequate consideration to each identified 24 direct marketing channels as a suitable economic substitute for StarStar numbers, and has not 25 utilized any valid methodology in excluding all such channels from the relevant markets. Aron 26 Report ¶ 12.G, Exh. 1 to Kesselman Decl. Specifically, Dr. Aron states that Dr. Sullivan “has 27 provided no economic evidence that StarStar numbers constitute an antitrust market or that other 1 substitutes in the eyes of customers.” Id. Dr. Aron suggests that Dr. Sullivan based his market 2 definitions on the deposition testimony of Tim Miller, Sumotext’s President and CEO, rather than 3 conducting a valid or accepted economic analysis of the market. Id. ¶ 12.A. 4 A defendant may present expert rebuttal of the plaintiff’s expert “by putting forth its own 5 expert who either claims that (1) the plaintiff’s expert’s methodology was conducted improperly in 6 some way; or (2) the ultimate conclusion the plaintiff’s expert makes is flawed because a superior 7 methodology provides a different result.” TCL Commc’ns Tech. Holdings Ltd. v. 8 Telefonaktenbologet LM Ericsson, No. CV 15-02370 JVS, 2016 WL 7042085, at *5 (C.D. Cal. 9 Aug. 17, 2016). Dr. Aron’s opinions fall into the first category, as she identifies numerous 10 potential substitutes for StarStar numbers based on record evidence, and concludes that Dr. 11 Sullivan has not used any legitimate methodology to exclude those potential substitutes from his 12 market definitions. 13 Sumotext argues that Dr. Aron goes beyond criticizing Dr. Sullivan’s methodology and 14 offers affirmative opinions regarding the scope of the relevant markets and what products 15 constitute substitutes for StarStar numbers. Sumotext contends that Dr. Aron cannot opine on the 16 latter topics without conducting an independent market analysis, citing numerous cases discussing 17 the required foundation for expert testimony. See, e.g., Concord Boat Corp. v. Brunswick Corp., 18 207 F.3d 1039, 1056-57 (8th Cir. 2000); Lantec, Inc. v. Novell, Inc., 306 F.3d 1003, 1025-26 (10th 19 Cir. 2002). At her deposition, Dr. Aron testified expressly that she was not asked to perform an 20 independent market analysis or to define the relevant markets in this case, and that she did not 21 engage in either task. See Aron Dep. 36:9-38:20, Exh. 3 to Kesselman Decl. After reviewing Dr. 22 Aron’s report, the Court concludes that she does not offer her own market definitions or opine as 23 to which products constitute adequate substitutes for StarStar numbers; instead, Dr. Aron 24 challenges Dr. Sullivan’s methodology in excluding all potential substitutes from his market 25 definitions. Dr. Aron is qualified to challenge Dr. Sullivan’s methodology in this manner, and 26 such challenge constitutes proper rebuttal opinion. Sumotext has offered no authority for the 27 proposition that Dr. Aron must offer her own market definitions in order to criticize Dr. Sullivan’s 1 Sumotext identifies several statements in Dr. Aron’s report that could be construed as 2 affirmative statements regarding the scope of the relevant markets or the suitability of certain 3 products as substitutes for StarStar numbers. For example, Sumotext points to Dr. Aron’s 4 statement that “[t]he evidence I discuss below indicates that the relevant market is much larger 5 than StarStar numbers and StarStar services and includes a much broader set of consumer 6 engagement products.” Aron Report ¶ 145, Exh. 1 to Kesselman Decl. Read in context, however, 7 the identified statements do not appear to be independent determinations regarding the scope of 8 the relevant markets, but merely part of Dr. Aron’s commentary on asserted deficiencies in Dr. 9 Sullivan’s opinions. For example, immediately after the language quoted above, Dr. Aron points 10 to evidence that a decrease in the price of StarStar numbers did not result in increased demand, 11 and opines that “[i]f StarStar numbers constituted a market, a decrease in price would result in an 12 increase in sales of the product.” Id. ¶¶ 145-47. Highlighting Dr. Sullivan’s failure to address this 13 and other record evidence is proper rebuttal. “The proper function of rebuttal evidence is to 14 contradict, impeach or defuse the impact of the evidence offered by an adverse party.” Huawei 15 Techs., Co, Ltd v. Samsung Elecs. Co, Ltd., 340 F. Supp. 3d 934, 996 (N.D. Cal. 2018) (internal 16 quotation marks and citation omitted). Dr. Aron’s opinions do just that. To the extent Dr. Aron 17 offers affirmative market definitions at trial, Sumotext may raise an appropriate objection based on 18 Dr. Aron’s testimony that she did not conduct an independent market analysis or to define the 19 relevant markets. 20 In its reply brief, Sumotext argues that Defendants’ opposition inappropriately attacks Dr. 21 Sullivan’s report as unreliable and factually unsupported. Sumotext correctly points out that 22 Defendants have not filed a Daubert motion with respect to Dr. Sullivan, and that an opposition 23 brief is not a proper vehicle to do so. The Court has disregarded Defendants’ attacks on Dr. 24 Sullivan arguments except as relevant to the reliability and admissibility of Dr. Aron’s opinions. 25 As stated above, the Court finds Dr. Aron’s criticisms of Dr. Sullivan’s report to be appropriate 26 expert rebuttal. To the extent Sumotext believes Dr. Aron has mischaracterized Dr. Sullivan’s 27 report, that argument goes to the weight of Dr. Aron’s opinions and not their admissibility. Perez 1 7, 2011) (“Whether Bashline’s analysis and conclusions misrepresent or mischaracterize the Cripe 2 and Rubinfeld Reports goes to the weight of his testimony rather than its admissibility.”). 3 Accordingly, the Court DENIES Sumotext’s motion to exclude Dr. Aron’s opinions 4 regarding Dr. Sullivan’s market definitions. 5 2. Dr. Aron’s Single Monopoly Profit Critique 6 Dr. Aron concludes that if Dr. Sullivan’s market definitions are accepted, then Dr. 7 Sullivan’s opinion that Defendants excluded Sumotext as a reseller is internally inconsistent under 8 the “single monopoly profit” principle of economics. See Aron Report ¶ 12.E., Exh. 1 to 9 Kesselman Decl. Dr. Aron explains that principle in her report as follows:

10 Economics teaches that even if VHT**/SSM were a monopolist as Dr. Sullivan opines, a monopolist has no short-run or long-run incentive to exclude efficient 11 resellers, dealers, and retailers from the market. This is because an upstream monopolist can extract all of the monopoly profits available without controlling the 12 retailing function, and would only seek to control the retailing function if it were a more efficient retailer than existing retailers. An upstream monopolist has no 13 incentive to attempt to “leverage” or extend its upstream monopoly into downstream sales because there are no additional profits to be had; on the contrary, 14 if the downstream dealers or resellers were more efficient at selling, the upstream monopolist would earn more profits by encouraging resellers and dealers. The 15 upstream monopoly would have an incentive to operate the retailing function itself only if it were more efficient at doing so (because it could share in the efficiency 16 gains), and operating the downstream function itself would not harm, and may rather benefit, consumers. This economic principle is known as the “single 17 monopoly profit” critique. 18 Id. ¶ 104 (footnotes excluded), Exh. 1 to Kesselman Decl. 19 Sumotext argues that Dr. Aron may not offer testimony based on a theory that requires 20 analysis of conduct in two defined markets when she has not defined a relevant market or 21 undertaken a market analysis. That argument is not well-taken. Dr. Aron offers the “single 22 monopoly profit” critique to show that if Dr. Sullivan’s market definitions are accepted, his report 23 is internally inconsistent. Dr. Aron need not establish that Dr. Sullivan’s market definitions are 24 correct – in fact she has sought to establish just the opposite – in order to argue that if they are 25 correct then Dr. Sullivan’s report is flawed under a particular economic principle. 26 Sumotext also argues that to the extent Dr. Aron opines that upstream monopolists cannot 27 be liable for antitrust violations arising from refusal to deal with downstream resellers, Dr. Aron’s 1 Inc., 504 U.S. 451 (1992). Sumotext’s argument is inapposite, as Dr. Aron does not opine that the 2 “single monopoly profit” principle renders upstream monopolists immune from antitrust liability. 3 Dr. Aron merely opines that if Dr. Sullivan’s market definitions are accepted, then his report is 4 internally inconsistent. 5 Finally, Sumotext cites economic literature for the proposition that the “single monopoly 6 profit” theory has been discredited, and it argues that Dr. Aron’s opinions based on the theory 7 therefore should be excluded. In response, Defendants cite other economic literature and case law 8 recognizing the validity of the “single monopoly profit” theory. Sumotext has not provided the 9 Court with an adequate basis to determine that the “single monopoly profit” theory has been 10 uniformly rejected in the field of economics such that Dr. Aron’s application of the theory is 11 inherently unreliable. Where, as here, two qualified economists espouse conflicting views about 12 the effect of a particular economic principle on the case, a “battle of the experts” arises. The 13 proper course is to allow each side to attack the other’s with contrary expert opinion, other 14 contrary evidence, and cross-examination. See Primiano, 598 F.3d at 564-65. Dr. Sullivan in fact 15 takes on Dr. Aron’s application of the “single monopoly profit” principle in his reply report, 16 asserting that Dr. Aron’s approach is erroneous. Sullivan Reply Report ¶¶ 32-37, Exh. 2 to 17 Kesselman Decl. It will be up to the jury to decide which expert to believe. 18 The Court DENIES Sumotext’s motion to exclude Dr. Aron’s opinions regarding the 19 “single monopoly profit” principle. 20 B. Motion to Exclude Certain Opinions of Greg J. Regan 21 Sumotext challenges two aspects of the opinions offered by Defendants’ rebuttal damages 22 expert, Greg J. Regan. First, Sumotext seeks to exclude Mr. Regan’s opinion that Sumotext’s lost 23 profits, if any, total approximately $1.1 million rather than the $9.2 million calculated by 24 Sumotext’s damages expert, Dr. Alan G. Goedde. Second, Sumotext seeks to exclude Mr. 25 Regan’s opinions regarding Sumotext’s lease cancellations. Sumotext asserts that these opinions 26 are based on unreliable and inconsistent methodology. In response, Defendants argue that Mr. 27 Regan’s opinions are based on sound methodology and are admissible. 1 1. Mr. Regan’s Damages Calculation 2 Sumotext’s damages expert, Dr. Goedde, opines that the present value of Sumotext’s lost 3 profits resulting from Defendants’ alleged anticompetitive conduct totals $9,223,500. Goedde 4 Report ¶ 44, Exh. 1 to Stockinger Decl. Mr. Regan criticizes Dr. Goedde’s methodology on a 5 number of grounds, including Dr. Goedde’s asserted failure to adequately account for the impact 6 of lease cancellation by Sumotext’s customers, overstatement of projected growth rate, dismissal 7 of the Verizon VoLTE issue, and failure to account for all of Sumotext’s variable costs. Regan 8 Report ¶¶ 46-56, 73-77, 89-92, 93-96, Exh. 2 to Stockinger Decl. Mr. Regan provides an 9 alternative calculation of $1,105,200 for the present value of Sumotext’s lost profits, if any, 10 resulting from Defendants’ alleged anticompetitive conduct. Regan Report ¶¶ 115, 128-33 & 11 Sched. 3. Sumotext moves to exclude Mr. Regan’s alternative damages model and damages 12 calculation. 13 As noted above, a defendant may present expert rebuttal of the plaintiff’s expert by putting 14 forth its own expert who either (1) challenges the methodology of the plaintiff’s expert, or (2) 15 claims that the ultimate conclusion reached by the plaintiff’s expert is flawed because a superior 16 methodology provides a different result. See TCL Commc’ns Tech. Holdings Ltd., 2016 WL 17 7042085, at *5. Mr. Regan’s opinions satisfy both categories, as he challenges Dr. Goedde’s 18 methodology and offers a different damages calculation based on what he claims is superior 19 methodology. 20 Sumotext argues that Mr. Regan’s alternative damages model is unreliable because it is 21 dependent on a 75% lease cancellation rate that Sumotext contends is unsupported by the record 22 and based solely on Mr. Regan’s ipse dixit.2 “[N]othing in either Daubert or the Federal Rules of 23 Evidence requires a district court to admit opinion evidence that is connected to existing data only 24 by the ipse dixit of the expert.” Kumho Tire, 526 U.S. at 157 (internal quotation mark and citation 25 omitted). However, as discussed below, the Court finds that Mr. Regan adequately explains how 26 he arrived at the 75% lease cancellation rate and used the rate in his damages calculation. 27 1 Mr. Regan observes that Sumotext’s StarStar leases typically were for a fixed initial term 2 such as three months, with the leases thereafter renewing on a month-to-month basis. Regan 3 Report ¶ 48, Exh. 2 to Stockinger Decl. Sumotext experienced significant lease cancellations over 4 the period it operated its StarStar business. Id. ¶¶ 49-52. Mr. Regan calculated that the average 5 duration of Sumotext’s leases at the time of cancellation was 6.4 months. Id. ¶ 62. Based on 6 leases in service as of September 15, 2015, which was 6.4 months prior to the termination of all of 7 Sumotext’s StarStar numbers, Mr. Regan calculated that Sumotext had a lease cancellation rate of 8 82%. Id. ¶ 65. Mr. Regan did not include leases commencing after September 15, 2015 when 9 calculating Sumotext’s cancellation rate, because in his opinion those leases had not been in 10 service long enough for complete cancellation data to emerge. Id. ¶ 67. Mr. Regan also 11 determined the average duration of StarStar Mobile’s leases and StarStar Mobile’s cancellation 12 rate based on leases commencing after January 2016. Id. ¶ 64. Mr. Regan found that the average 13 duration of StarStar Mobile’s leases at the time of cancellation was 8 months and that StarStar 14 Mobile’s lease cancellation rate was 67%. Id. 15 Mr. Regan used these lease cancellation rates in his lost profits calculation as follows. 16 First, he calculated Sumotext’s gross revenue based on its active StarStar leases as of December 17 31, 2015. Regan Report ¶ 128, Exh. 2 to Stockinger Decl. Mr. Regan then calculated Sumotext’s 18 future gross revenue based on growth rates identified and explained in his report. Id. ¶¶ 128-29. 19 However, those calculations did not take into account the impact of lease cancellation. Id. ¶ 130. 20 As noted above, Mr. Regan determined that Sumotext’s lease cancellation rate was 82%. 21 However, he applied a lower cancellation rate of 75% for purposes of his analysis. Id. Mr. Regan 22 stated in his report that “[t]his reduced cancellation rate considers the cancellation experience of 23 StarStar Mobile (i.e., approximately 67%).” Id. Applying the 75% cancellation rate and 24 deducting operating costs, Mr. Regan concludes that the present value of Sumotext’s lost profits, if 25 any, total $1,105,200. Regan Report Schedule 3. 26 Sumotext contends that Mr. Regan’s explanation of why he applied a 75% cancellation 27 rate is inadequate, and it asserts that Mr. Regan conceded in his deposition that the 75% rate is 1 Regan testified that although he could have used the 82% cancellation rate he had determined for 2 Sumotext, he made a judgment that cancellation rates might decline somewhat over time and thus 3 that a lower rate of 75% was more appropriate. Regan Dep. 131:17-25, Exh. 4 to Stockinger Decl. 4 Mr. Regan’s judgment was based in part on StarStar Mobile’s 67% cancellation rate. Id. Mr. 5 Regan also considered the abatement of the Verizon VoLTE issue and he anticipated that 6 Sumotext might get better at avoiding cancellations as it gained experience in the business. Regan 7 Dep. 132:3-9, Exh. A to Bloch Decl. Based on all of those factors, Mr. Regan decided to apply a 8 more conservative cancellation rate of 75% rather than the rate of 82%. Regan Dep. 132:9-17. 9 Mr. Regan’s downward adjustment of Sumotext’s actual 82% cancellation rate to an estimated 10 75% cancellation rate, based on his professional judgment that the factors identified above might 11 cause a decline in cancellation rates over time, is an appropriate exercise of his expertise that 12 meets the threshold of Rule 702. See Fed. Judicial Ctr. Reference Guide on Estimation of 13 Economic Damages 432-33 (3d Ed. 2011), 2011 WL 7724259, *4 (“Relatively few economists 14 serving as damages experts succumb to Daubert challenges, because most damages analyses 15 operate in the familiar territory of measuring economic values using a combination of professional 16 judgment and standard tools.”). 17 The Court DENIES Sumotext’s motion to exclude Mr. Regan’s damages model and lost 18 profits calculation on the ground that the 75% lease cancellation rate is based solely on ipse dixit. 19 2. Mr. Regan’s Opinions Re Sumotext’s Lease Cancellations 20 In addition to challenging the 75% estimated lease cancellation rate used by Mr. Regan, 21 Sumotext also challenges the actual 82% lease cancellation that was Mr. Regan’s starting point. 22 First Sumotext contends that the 82% cancellation rate is inflated by inclusion of leases 23 cancelled on March 31, 2016 – the effective date of Defendants’ termination of Sumotext – as a 24 result of Defendants’ anticompetitive conduct. Sumotext argues that it is improper to calculate 25 lost profits based on data affected by Defendants’ alleged anticompetitive conduct, because “[a] 26 plaintiff’s antitrust damages are to be calculated by comparison of profits, prices and values as 27 affected by the conspiracy, with what they would have been in its absence under freely 1 F.2d 1356, 1367 (9th Cir. 1986) (internal quotation marks and citation omitted). 2 Mr. Regan expressly recognized in his deposition testimony that his goal was to determine 3 what Sumotext’s baseline performance was prior to the alleged bad acts, and to use that baseline to 4 estimate Sumotext’s hypothetical performance had the bad acts not occurred. Regan Dep. 32:17- 5 6, Exh. A to Bloch Decl. Mr. Regan acknowledged that in determining the 82% lease cancellation 6 rate, he considered leases that were cancelled on March 31, 2016. Id. 150:16-25. He explained 7 that he did so to increase his data pool. Id. More specifically, the leases terminated on March 31, 8 2016 generally were cancelled more quickly than other leases, and thus including those leases 9 brought down the average months to termination figure, which enabled a deeper pool of leases to 10 be analyzed. Id. Mr. Regan confirms the 82% cancellation rate by looking at other data, such as 11 how many of Sumotext’s StarStar numbers leased in 2012 were still leased in 2015. Regan Report 12 ¶¶ 49-50, Exh. 2 to Stockinger Decl. That data shows a cancellation rate of 80%. Id. Mr. Regan 13 also analyzes data on usage of StarStar numbers and concludes that there is a strong correlation 14 between low or declining call volume and cancellation. Id. ¶¶ 56-61. Mr. Regan indicates that 15 most of leases cancelled on March 31, 2016 had low call volume and therefore likely would have 16 been cancelled in any event. Id. ¶¶ 67-70. Mr. Regan looks to the call usage activity as a cross- 17 check for his lease cancellation rate and concludes that Defendants’ alleged bad acts did not affect 18 the analysis. Regan Dep. 165:17-167:1, Exh. A to Bloch Decl. 19 Based on the foregoing, the Court is satisfied that Mr. Regan has articulated a reasonable 20 methodology grounded in the record evidence which is sufficient to satisfy the threshold of Rule 21 702. Sumotext’s assertions that the methodology of its expert is superior, or that Mr. Regan’s 22 82% lease cancellation rate is inaccurate, may be addressed at trial through presentation of Dr. 23 Goedde’s testimony and cross-examination of Mr. Regan. 24 Sumotext argues that Mr. Regan acted inconsistently by excluding all Sumotext leases in 25 effect for less than 6.4 months when calculating the lease cancellation rate, but applying the 26 cancellation rate to new leases on a trailing 6.0 month basis. Sumotext argues that had Mr. Regan 27 used a 6.0 month term for the average lease duration, the cancellation rate would have been 41% - 1 average duration of Sumotext’s leases at the time of cancellation was 6.4 months. Regan Report § 2 62, Exh. 2 to Stockinger Decl. Using the 6.4 figure, Mr. Regan calculates a lease cancellation rate 3 of 82%. It is not apparent that use of the 6.4 month average lease duration figure in calculating the 4 || lease cancellation rate is inconsistent with Mr. Regan’s subsequent application of the reduced 5 || lease cancellation rate of 75% “on a trailing two quarter basis” as disclosed in the portions of Mr. 6 || Regan’s testimony cited by Sumotext. Regan Dep. 127:14-20, Exh. 4 to Stockinger Decl. Even if 7 there were an inconsistency in the manner in which Mr. Regan applies the lease cancellation rate, 8 || that inconsistency would not dictate reduction of the average lease duration from 6.4 months to 6.0 9 || months or render unreliable Mr. Regan’s calculation of the lease cancellation rate. Sumotext is 10 || free to challenge Mr. Regan’s calculations regarding average lease duration, lease cancellation 11 rate, or any other of his results at trial through presentation of competing expert opinion or cross- 12 || examination. However, Sumotext has failed to establish that the asserted inconsistency described 13 above renders Mr. Regan’s opinions unreliable and thus excludable under Rule 702 and Daubert. 14 The Court notes that the parties engage in substantial debate as to whether and which 3 15 portions of Mr. Regan’s report may be irrelevant now that Sumotext has dismissed its state law 16 || claims. The Court is confident that any testimony offered at trial will be relevant to the remaining 3 17 antitrust claims. If that is not the case, Sumotext may raise an appropriate objection. 18 Accordingly, the Court DENIES Sumotext’s motion to exclude Mr. Regan’s opinions 19 || regarding Sumotext’s lease cancellations. 20 Il. ORDER 21 Sumotext’s Daubert motions regarding defense experts Dr. Aron and Mr. Regan are 22 || DENIED. 23 24 Dated: January 2, 2020 han ham Low omer) BETH LABSON FREEMAN 26 United States District Judge 27 28