Hearing Date and Time: 12/18/2019 at 10:00 a.m. Objection Deadline: 12/11/2019 at 4:00 p.m.
John Kingston (pro hac vice) Michael Nepple (pro hac vice) Brian Hockett (pro hac vice) THOMPSON COBURN LLP One US Bank Plaza St. Louis, MO 63101 Telephone: (314) 552-6000 Facsimile: (314) 552-7000
Counsel for Defendants Charter Communications, Inc. and Charter Communications Operating, LLC
IN THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
) In re: ) Chapter 11
) WINDSTREAM HOLDINGS, INC., et al., ) Case No. 19-22312 (RDD)
) Debtors. ) (Jointly Administered)
) )
WINDSTREAM HOLDINGS, INC., et al., ) )
Plaintiffs, ) Adv. Pro. No. 19-08246 )
vs. ) )
CHARTER COMMUNICATIONS, INC. and ) CHARTER COMMUNICATIONS OPERATING, ) LLC, )
) Defendants. )
)
DEFENDANTS CHARTER COMMUNICATIONS, INC. AND CHARTER COMMUNICATIONS OPERATING, LLC’S EX-PARTE
MOTION TO SEAL DOCUMENTS FILED IN CONNECTION WITH THEIR MOTION TO EXCLUDE THE TESTIMONY OF JOHN C. JAROSZ
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Pursuant to 11 U.S.C. § 107(b), 11 U.S.C. §§ 101 et seq., Rule 9018 of the
Federal Rules of Bankruptcy Procedure, and Rule 9018-1 of the Local Rules of the
United States Bankruptcy Court for the Southern District of New York, Charter
Communications, Inc. and Charter Communications Operating, LLC (Charter) move
to file under seal portions of its Memorandum in Support of Its Motion to Exclude the
Testimony of John C. Jarosz, as well a select number of supporting exhibits. In
support, Charter states:
JURISDICTION AND VENUE
1. The Court currently has jurisdiction under 28 U.S.C. § 1334 and the
Amended Standing Order of Reference from the United States District Court for the
Southern District of New York, dated February 1, 2012.
2. Venue is proper in this district pursuant to 28 U.S.C. § 1409.
3. The bases for the relief requested herein are sections 105(a) and 107(b)
of the Bankruptcy Code, Bankruptcy Rule 9018, and Local Rule 9077-1(b).
GROUNDS FOR RELIEF
4. Charter moves to file under seal portions of its Memorandum in Support
of its Motion to Exclude the Testimony of John C. Jarosz, as well as a select number
of the following supporting exhibits—slip sheets or redacted copies of which have
been attached hereto:
a. Exhibit 1 (SEALED)
b. Exhibit 4 (SEALED)
c. Exhibit 5 (SEALED)
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d. Exhibit 11 (UNREDATED COPY SEALED)
e. Exhibit 12 (SEALED)
f. Exhibit 13 (UNREDACTED COPY SEALED)
g. Exhibit 15 (SEALED)
5. The information and/or documents sought to be filed under seal have
been designated as either CONFIDENTIAL or CONFIDENTIAL – ATTORNEYS’
EYES ONLY pursuant to the parties’ Confidentiality Agreement and Stipulated
Protective Order (ECF 74) or involve confidential subject matter derived from such
documents.
6. Section 107(b) of the Bankruptcy Code authorizes courts to issue orders
that will protect entities from the potential harm that may result from the disclosure
of certain confidential information. This section provides, in part:
(b) On request of a party in interest, the bankruptcy court shall, and on
the bankruptcy court’s own motion, the bankruptcy court may—
(1) protect an entity with respect to a trade secret or confidential
research, development, or commercial information…
11 U.S.C. § 107(b)(1).
7. Bankruptcy Rule 9018 further provides, in part:
On motion or on its own initiative, with or without notice, the court may
make any order which justice requires (1) to protect the estate or any
entity in respect of a trade secret or other confidential research,
development, or commercial information . . . .
Fed. R. Bankr. P. 9018.
8. Unless this motion to seal is withdrawn, the documents sought to be sealed by
this motion should be sealed for the duration of this matter pursuant to the parties’
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protective order. Charter will retrieve the documents from the Court at the conclusion
of this matter and dispose of the materials in compliance with all applicable
protective orders.
9. The people that will have access to the sealed and unredacted documents are
Charter, Windstream, the Court, the U.S. Trustee, and counsel for the Official
Committee of Unsecured Creditors.
10.Charter has made no prior request for the relief sought herein to this or any
other court.
WHEREFORE, Charter respectfully requests that the Court enter an order,
substantially in the form attached hereto and grant such other and further relief as
is just and appropriate under the circumstances.
Dated: November 15, 2019 Respectfully submitted,
THOMPSON COBURN LLP
By: /s/ John Kingston
John Kingston (pro hac vice) Michael Nepple (pro hac vice) Brian Hockett (pro hac vice) THOMPSON COBURN LLP One U.S. Bank Plaza, Suite 2700 St. Louis, MO 63101 314-552-6000 314-552-7000 (fax) [email protected] [email protected] [email protected]
Attorneys for Defendants Charter Communications, Inc. and Charter Communications Operating, LLC
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CERTIFICATE OF SERVICE
I hereby certify that on this 15th day of November, 2019, I served a true and correct copy of Defendants Charter Communications, Inc. and Charter Communications Operating, LLC’s Motion to File Under Seal Documents Filed in Connection with Their Motion Exclude the Testimony of John C. Jarosz via operation of the Court’s Electronic Filing System upon all counsel of record in the adversary proceeding.
Undersigned counsel further certifies that on this 15th day of November, 2019, a true and correct copy of Defendants Charter Communications, Inc. and Charter Communications Operating, LLC’s Motion to File Under Seal Documents Filed in Connection with Their Motion Exclude the Testimony of John C. Jarosz will be sent via United States Mail, postage prepaid, to the following:
Terence P. Ross Kristin Lockhart Michael R. Justus 2900 K Street NW North Tower – Suite 200 Washington, DC 20007-5118
Shaya Rochester Katten Muchin Rosenman LLP 575 Madison Avenue New York, NY 10022-2585
United States Trustee ATTN: Paul K. Schwartzburg and Serene Nakano U.S. Department of Justice Office of the United States Trustee 201 Varick Street, Rm. 1006 New York, NY 10014
Steve Rappoport Morrison & Foerster LLP 250 West 55th Street New York, NY 10019-9601
/s/ John Kingston
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IN THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
) In re: ) Chapter 11
) WINDSTREAM HOLDINGS, INC., et al., ) Case No. 19-22312 (RDD)
) Debtors. ) (Jointly Administered)
) )
WINDSTREAM HOLDINGS, INC., et al., ) )
Plaintiffs, ) Adv. Pro. No. 19-08246 )
vs. ) )
CHARTER COMMUNICATIONS, INC. and ) CHARTER COMMUNICATIONS OPERATING, ) LLC, )
) Defendants. )
)
ORDER GRANTING DEFENDANTS’ EX-PARTE MOTION TO SEAL DOCUMENTS FILED IN CONNECTION WITH THEIR
MOTION TO EXCLUDE THE TESTIMONY OF JOHN C. JAROSZ
Upon consideration of Charter Communications, Inc. and Charter Communications
Operating, LLC’s (“Charter”) Ex-Parte Motion to Seal Documents Filed in Connection with Their
Motion to Exclude the Testimony of John C. Jarosz the motion is hereby GRANTED.
This Order is without prejudice to the rights of any party in interest or the United States
Trustee for the Southern District of New York to seek to declassify and make public any portion
of the material filed under seal.
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- 2 -
Charter is to dispose of all sealed documents and confidential information at the conclusion
of this matter.
Dated: _________________, 2019
United States Bankruptcy Judge
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Hearing Date and Time: 12/18/2019 at 10:00 a.m. Objection Deadline: 12/11/2019 at 4:00 p.m.
John Kingston (pro hac vice) Michael Nepple (pro hac vice) Brian Hockett (pro hac vice) THOMPSON COBURN LLP One US Bank Plaza St. Louis, MO 63101 Telephone: (314) 552-6000 Facsimile: (314) 552-7000
Counsel for Defendants Charter Communications, Inc. and Charter Communications Operating, LLC
IN THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
) In re: ) Chapter 11
) WINDSTREAM HOLDINGS, INC., et al., ) Case No. 19-22312 (RDD)
) Debtors. ) (Jointly Administered)
) )
WINDSTREAM HOLDINGS, INC., et al., ) )
Plaintiffs, ) Adv. Pro. No. 19-08246 )
vs. ) )
CHARTER COMMUNICATIONS, INC. and ) CHARTER COMMUNICATIONS OPERATING, ) LLC, )
) Defendants. )
)
DEFENDANTS CHARTER COMMUNICATIONS, INC. AND CHARTER COMMUNICATIONS OPERATING, LLC’S
MEMORANDUM IN SUPPORT OF MOTION TO EXCLUDE THE TESTIMONY OF JOHN C. JAROSZ
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i
TABLE OF CONTENTS
PAGE
INTRODUCTION .......................................................................................................... 1
BACKGROUND ............................................................................................................. 2
A. Mr. Jarosz’s conclusory and unsupported assertions regarding causation ................................................................................................... 3
B. Mr. Jarosz’s rehashing of out-of-court statements by Windstream employees related to undisclosed non-expert damage computations ..... 4
C. Mr. Jarosz’s lost profit opinion based on the alleged “difference in the difference” between customer churn rates in 2018 and 2019 ................. 4
1. Mr. Jarosz’s opinion depends on the assumption that he was given a reliable estimate of Windstream subscribers for whom that Charter and Windstream compete ........................................ 7
2. Mr. Jarosz depends on the incorrect assumption that Charter and Windstream only compete in .................................. 8
3. Mr. Jarosz depends on the reliability of the assumption that the historical difference in churn rates between his “test group” and “control group” stayed .................................. 9
4. Mr. Jarosz depends on an untestable opinion that the Charter Advertisement affected customer decisions for ...... 10
5. Mr. Jarosz incorrectly assumes Charter offered no services in 2019 that were not offered in early 2018 .................................... 11
6. Mr. Jarosz assumes third party competition is evenly distributed between the “test group” and “control group.” ........ 11
7. Mr. Jarosz assumes Windstream Holdings, Inc. lost subscribers and revenue, when in fact Windstream Holdings, Inc. does not have any subscribers ................................................................... 13
LEGAL STANDARD .................................................................................................... 13
ARGUMENT ................................................................................................................ 14
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ii
I. Mr. Jarosz’s “lost profit” opinion is not admissible because it is not based on his own alleged expertise and is not based on the reliable application of his chosen methodology to reliable data. .................................. 15
A. Because Mr. Jarosz did not attempt to verify the expert opinions of undisclosed witnesses regarding the number and location of Windstream subscribers for whom Windstream and Charter compete, his lost profit opinion is inadmissible .................................................... 15
B. Mr. Jarosz’s opinion is unreliable because the time frame he used for his observation purports to be based on the opinions of undisclosed expert witnesses ..................................................................................... 17
C. Mr. Jarosz’s necessary assumption, that the difference in churn rates between the test group and control group , is disproved by his own data. .................................................................... 19
D. Mr. Jarosz’s foundational assumption that the Charter Advertisement is the only thing that could have had an incremental impact on Windstream’s churn rate is demonstrably unreliable .......................... 21
II. Mr. Jarosz should be prohibited from testifying about corrective advertising and promotional costs because he has not disclosed expert opinions on those topics and was not designated as a fact witness ................ 23
III. Mr. Jarosz is not qualified to opine on causation and his methodology is unreliable ....................................................................................................... 24
A. Mr. Jarosz’s expertise as an economist does not qualify him to opine on causation in a false advertising case ..................................................... 25
B. Mr. Jarosz’s methodology is inconsistent with generally accepted practices .................................................................................................. 25
CONCLUSION ............................................................................................................. 28
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iii
TABLE OF AUTHORITIES
Page(s)
Cases
Abbott Biotechnology Ltd. v. Centocor Ortho Biotech, Inc., No. 09-cv-40089-FDS, 2014 WL 7330777 (D. Mass. Dec. 19, 2014) ................................ 11, 22
Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d 256 (2d Cir. 2002) ............... 2, 14
Cartwright v. Home Depot U.S.A., Inc., 936 F. Supp. 900 (M.D. Fla. 1996) ........................................................................................................................ 26
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).................................... 1, 25
Forte v. Liquidnet Holdings, Inc., 675 Fed. Appx. 21 (2d Cir. 2017) ................... 16, 18
Gary Price Studios, Inc. v. Randolph Rose Collection, Inc., No. 03-cv-969-CSH, 2006 WL 1319543 (S.D.N.Y. May 11, 2006) ........................................... 2
Haggerty v. Upjohn Co., 950 F. Supp. 1160 (S.D. Fla. 1996) ..................................... 26
In re Fosamax Prods. Liability Litig., 645 F. Supp. 2d 164 (S.D.N.Y. 2009) .................................................................................................................. 14, 28
In re M/V MSC Flaminia, No. 12-cv-8892-KBF, 2017 WL 3208598 (S.D.N.Y. July 28, 2017) ......................................................................................... 25
Lamarr-Arruz v. CVS Pharmacy, Inc., No. 15-CV-04261 (JGK), 2017 WL 4277188 (S.D.N.Y. Sept. 26, 2017) .............................................................. 1, 21
Macaluso v. Herman Miller, Inc., No. 01-cv-11496-JGK, 2005 WL 563169 (S.D.N.Y. Mar. 10, 2005) ....................................................................... 1, 21
Malletier v. Dooney & Bourke, Inc., 525 F. Supp. 2d 558 (S.D.N.Y. 2007) ........................................................................................................ 1, 15, 16, 18
Quiles v. Bradford-White Corp., 2012 WL 1355262 (N.D.N.Y. Apr. 18, 2012) ........................................................................................................................ 16
Sharkey v. J.P. Morgan Chase & Co., 978 F. Supp. 2d 250 (S.D.N.Y. 2013) ........................................................................................................................ 24
Tagatz v. Marquette Univ., 861 F.2d 1040 (7th Cir. 1988) ........................................ 23
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iv
Toshiba Corp. v. Imation Corp., No. 9-cv-305-SLC, 2013 WL 7157854 (W.D. Wisc. Apr. 5, 2013) ....................................................................................... 23
United States v. Williams, 506 F.3d 151 (2d Cir. 2007) ............................................. 13
Rules
Federal Rule of Civil Procedure 26(a) ....................................................................... 1, 7
Federal Rule of Evidence 403 ............................................................................ 1, 14, 28
Federal Rule of Evidence 702 ............................................................................... passim
Other Authorities
Manual for Complex Litigation, Fourth (2004) .......................................................... 26
Michael J. Saks, et al., Ann. Reference Manual on Sci. Evid. 83 (2d ed.) ................. 21
Shari Seidman Diamond and Jerre B. Swann, Trademark and Deceptive Advertising Surveys (2012). ................................................................... 27
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1
INTRODUCTION
Defendants Charter Communications, Inc. and Charter Communications
Operating, LLC (Charter) respectfully submit this Memorandum of Law in support
of their Motion pursuant to Rules 702 and 403 of the Federal Rules of Evidence to
exclude the testimony and opinions of Debtors’ putative expert, John. C. Jarosz.
According to his disclosure statement, Mr. Jarosz’s proposes to testify
regarding alleged lost profits, alleged promotional and corrective advertising costs,
and causation. See Exhibit 1, Expert Report of John C. Jarosz.
Mr. Jarosz’s proposed lost profit testimony is inadmissible under Rule 702,
Rule 403 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) because
(1) he repeats without analysis the opinions of other experts that have not been
disclosed under Federal Rule of Civil Procedure 26(a) or made available for
deposition, see Malletier v. Dooney & Bourke, Inc., 525 F. Supp. 2d 558, 665–66
(S.D.N.Y. 2007) (expert’s reliance on an underlying expert opinion is improper where
opposing party has no chance to depose the underlying expert);
(2) he relies on speculative and/or demonstrably false assumptions, see
Macaluso v. Herman Miller, Inc., No. 01-cv-11496-JGK, 2005 WL 563169, at *8
(S.D.N.Y. Mar. 10, 2005) (expert testimony excluded under Daubert “because it is
based on incorrect factual assumptions that render all of his subsequent conclusions
purely speculative”); and
(3) he makes no effort to control for confounding variables in his analysis, see
Lamarr-Arruz v. CVS Pharmacy, Inc., No. 15-CV-04261 (JGK), 2017 WL 4277188, at
*10 (S.D.N.Y. Sept. 26, 2017) (excluding expert testimony based on statistical
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2
analysis that failed to account for “confounding variables”) (citing Wills v. Merada
Hess Corp., 379 F.3d 32, 50 (2d Cir. 2004)).
Mr. Jarosz’s proposed testimony on promotional costs and the cost of corrective
advertising is likewise inadmissible under Rule 702 because it is not based on any
specialized knowledge and instead would “simply parrot” unverified hearsay
statements of Windstream employees. Gary Price Studios, Inc. v. Randolph Rose
Collection, Inc., No. 03-cv-969-CSH, 2006 WL 1319543, at *8 (S.D.N.Y. May 11, 2006)
(precluding expert testimony that just repeated the plaintiff’s claims).
Mr. Jarosz’s proposed causation testimony is also inadmissible because it does
not rely on his own specialized knowledge or the application of reliable methods to
reliable facts and data. Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d 256, 266
(2d Cir. 2002) (holding that any step that renders the analysis unreliable under the
Daubert factors renders the expert’s testimony inadmissible).
BACKGROUND
In March 2019, Charter sent a direct mail advertisement referencing
Windstream’s bankruptcy to people in 22 states in geographic areas where Charter
and Windstream both compete for business (the Charter Advertisement). See Exhibit
2, Deposition of M. Kardos, 97:11-15, 170:2-171:7. Windstream contends the Charter
Advertisement was false and misleading and is seeking damages related to certain
alleged costs and allegedly lost residential internet subscribers.
Windstream’s residential internet subscribers customers must call
Windstream to terminate service. See Exhibit 3, Windstream’s Response to Request
to Admit 30.
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3
1 See Exhibit 4 (Windstream Dep. Tr. at 148:7-
19).
See Exhibit 5 (samples of alleged call transcripts).
It has
instead turned to indirect evidence in the form of opinion testimony.
Windstream disclosed John C. Jarosz, an economist whose specialty is
intellectual property valuation and monetary relief, as an expert witness. Mr.
Jarosz’s expert disclosure reflects an intent to opine on causation, lost profits, and
other damages allegedly asserted by the Windstream employees with whom he spoke.
See Exhibit 1.
A. Mr. Jarosz’s conclusory and unsupported assertions regarding causation.
According to Mr. Jarosz,
See Exhibit 1, at ¶ 42.
1 Windstream Holdings, Inc. is a holding company. It has no subscribers. The term “Windstream” is used for convenience throughout this memorandum because none of the 205 Debtor companies that have sued Charter have actually disclosed whether or not they have any customers now or whether or not they had any customers (much less, how many) before the Charter Advertisement was mailed.
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4
Id. at ¶¶ 42-46.
B. Mr. Jarosz’s rehashing of out-of-court statements by Windstream employees related to undisclosed non-expert damage computations.
Without offering an opinion or analysis,
Id. at ¶ 74. Likewise without opinion or analysis,
Id. at ¶ 75.
C. Mr. Jarosz’s lost profit opinion based on the alleged “difference in the difference” between customer churn rates in 2018 and 2019.
2 See Ex. 1 at ¶ 98.
Voluntary churn reflects a provider’s disconnection of customers for, e.g., failing to pay bills, move churn reflects disconnection of customers that change their residence, and involuntary churn reflects customers deciding to leave for non-moving reasons. See Ex. 2 at 61:24 – 62:4, 63:7-12. Mr. Jarsoz had no idea that there were different kinds of churn, and made no effort to limit his analysis to the involuntary churn that would reflect the customer decisions he claims to measure. See Exhibit 6, Deposition of John C. Jarosz at 62:17 – 64:17.
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5
Id. at ¶ 60.
3 Where the difference between two groups
with respect to a given metric is historically static, a “difference in the difference”
analysis can potentially measure the impact of a new variable added to one of the two
groups. For example, if (1) a given company’s sales were consistently 10% higher in
Connecticut than its sales in New York from 2015 through 2017, and (2) that 10%
difference increased to 15% after a new product was introduced in Connecticut in
2018, then (3) the 5% difference in the previously-static 10% difference between
Connecticut and New York sales could potentially be attributable to reactions to the
new product in Connecticut. For the purposes of observing a natural experiment to
determine the impact of the new product, consumers in New York would be the
“control group” and consumers in Connecticut would be the “test group.” Like any
statistical analysis, a difference in the difference study depends on reliable
assumptions and carefully controlling for confounding variables.
3 see Exhibit 1, but did admit that he purported to perform such an observation during
his deposition. See Ex. 6 at 80:8-14.
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Id. at ¶ 53.
Id.
Id. at ¶ 60. See also
Exhibit 6, Deposition of J. Jarosz, 82:17 – 84:11.
See Ex. 1, at ¶ 60.
Id.; see also Ex. 6 at 78:22-
79:16.
Ex. 1 at ¶¶ 60-61.
See id. at ¶ 61, Tab 5.
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Mr. Jarosz’s opinion depends on a number of foundational assumptions.
1. Mr. Jarosz’s opinion depends on the assumption that he was given a reliable estimate of Windstream subscribers for whom that Charter and Windstream compete.
Mr. Jarosz depends on the assumption that Windstream’s subscribers have
been accurately divided into a reliable “test group” and a reliable “control group.” See
Ex. 6 at 27:4 – 28:1. If the test group and control group are not accurately identified
(e.g., if the test group includes a significant number of subscribers that actually
belong in the control group), it would be impossible to draw a reliable conclusion by
observing changes in the difference between churn rates in the two groups. See Ex.
6 at 86:14 – 87:8 (admitting that including people in the test group that should have
been in the control group would cause Mr. Jarosz to question the methodology).
Id. at 27:11 – 28:1. He simply assumed the opinion was
accurate. See id. Windstream has not disclosed a witness pursuant to Rule 26(a) to
provide an opinion as to the accuracy of the division of its subscribers into
See Exhibit 7 (Windstream’s Second
Supplemental Rule 26(a) Initial Disclosures).
The assumption that Charter and Windstream compete for
Windstream subscribers is contrary to both the uncontroverted opinion testimony of
Charter’s non-retained expert witness, Matthew Kardos, and the objective market
share reports of an independent third party with no interest in this litigation. See Ex.
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2 at 8:18-23, 9:13-19, 14:10-16, 20:6-18, 32:21 – 33:21, 34:13 – 35:18, 42:05-15, 44:4-
7, 45:9-19 and Exhibit 8 (M. Kardos Dep. Ex. 12). Therefore, Windstream has roughly
130,000 subscribers in the “test group” that should be in the control group.
See Ex. 1, compare Tab 5 (
) with Tab 9
2. Mr. Jarosz depends on the incorrect assumption that Charter and Windstream only compete in 12 states.
Id. at ¶ 13, n. 21. He likewise assumed that the Charter
Advertisement was only mailed into 12 states.4 If that assumption is incorrect, Mr.
Jarosz’s natural experiment is unreliable because his “control group” includes
Windstream subscribers that should be in his “test group.” See Ex. 6 at 86:14 – 87:8.
In fact, Charter and Windstream compete in 22 states. See Ex. 2 at 170:21 – 171:7,
176:3-16 and Exhibit 9 (M. Kardos Deposition Exhibit 13). The Charter
Advertisement was mailed into those 22 states.5 See id.
4 See Ex. 6 at 72:01-19 (“Q: So, is it fair that one of the implicit assumptions underpinning your expert opinions as reflected in the expert report is that Charter and Windstream do not compete in Tennessee, Indiana, Michigan, Louisiana, Wisconsin, Virginia, and Colorado? A: Yes, I think that is a fair statement. At least not to the best of my knowledge.”) 5 Windstream has the information it needs to identify the actual Windstream subscribers that might have received the Charter Advertisement. It has its own customer mailing lists. It has the complete mailing list for the Charter Advertisement. And it can cross check the mailing lists against each other to identify potential recipients. Windstream suggested it
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3. Mr. Jarosz depends on the reliability of the assumption that the historical difference in churn rates between his “test group” and “control group” stayed at a constant
For such difference-in-the-difference analysis to be available, the difference in
the churn rates between Mr. Jarosz’s test group and control group must have
remained “static”
See Ex. 1 at ¶¶ 57-60. See also Ex. 6 at 82:17 – 84:11. The requirement
of a constant or static difference between the two groups is called a common trend
assumption or parallel trend assumption. According to the statistical authority on
which Mr. Jarosz’s relied, failure of the common trend assumption is fatal to a
difference in a difference analysis. See Joshua D. Angrist and Jorn-Steffen Pischke,
Mostly Harmless Econometrics: An Empiricist’s Companion (2009), p. 231 (stating
that because the data revealed substantial year-to-year variations in the two groups’
trends, the control group would not provide a good counterfactual measure for a
difference-in-difference analysis).
See Ex. 1, Tab 5.
Id.
performed this exercise on June 3, 2019, but has never produced the results. See Exhibit 10, S. Rochester June 3, 2019 Email Chain.
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Id. at ¶ 60.
Id. at Tab 5.
4. Mr. Jarosz depends on an untestable opinion that the Charter Advertisement affected customer decisions for
See id. at ¶ 56, n. 110.
Mr. Jarosz did not opine independently on the appropriate time frame for observing
the impact of direct mail advertising. Id. Instead, he purported to rely on the opinions
of two professors and a doctoral candidate from Rotterdam, who had published an
article analyzing charitable direct mailings from three large charity organizations in
the Netherlands. See id. (describing Mr. Jarosz’s reliance on Van Diepen, Merel, Bas
Donkers, and Philip Hans Franses, “Dynamic and Competitive Effects of Direct
Mailings: A Charitable Giving Application,” Journal of Marketing Research, Vol. 46,
No. 1 (2009)). Windstream did not disclose Mr. Van Diepen, Professor Donkers, or
Professor Franses as expert witnesses. The assumption that is the
proper time fame for analyzing the impact of a single direct mail piece is contrary to
the uncontroverted opinions of two experts that Charter has disclosed and made
available for deposition.
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5. Mr. Jarosz incorrectly assumes Charter offered no services in 2019 that were not offered in early 2018.
Mr. Jarosz assumed that Charter did not offer any new services in 2019 that
might be attractive to Windstream subscriber. See Ex. 6 at 46:6-10, 47:5-9, and 56:10-
19. If Charter offered new services in 2019,
Accord Abbott Biotechnology Ltd. v. Centocor Ortho Biotech, Inc., No. 09-
cv-40089-FDS, 2014 WL 7330777, at *16 (D. Mass. Dec. 19, 2014) (excluding Mr.
Jarosz’s opinion for improperly assuming that 100% of the defendant’s sales resulted
in infringement). In fact, in 2019 Charter has been offering and aggressively
promoting a bundled mobile telephone service called Spectrum Mobile. See Ex. 2 at
67:11 – 69:4. Because Spectrum Mobile is only available to internet subscribers,
Windstream’s internet subscribers would have to switch Charter internet to purchase
Spectrum Mobile. Id. Spectrum Mobile was not available in March, April, or May of
2018 and was not widely marketed or promoted through August of 2018. Id. at 173:13
- 24.
6. Mr. Jarosz assumes third party competition is evenly distributed between the “test group” and “control group.”
Mr. Jarosz assumed that any new services or marketing plans offered by third
party competitors other than Charter (e.g., AT&T) would be evenly distributed across
all 1,400 of the exchanges in which Windstream has subscribers. See Ex. 6 at 46:11
– 48:21, 49:20 – 51:7.
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Mr. Jarosz did not attempt to independently verify the
improbable assumption that third-party competition was evenly distributed across
all 1,421 Windstream exchanges. See id. at 46:11 – 48:21.
See Ex. 2 at 161:12 – 164:19 and Exhibit 11 (Oct. 21, 2019
email from K. Lockhart).
Given the substantial costs related to upgrading facilities to provide faster and
more reliable internet service (i.e., to sell a more competitive product) and marketing
costs, third party competitors tend to gravitate to more densely populated areas (all
else equal, facilities-based providers like AT&T would prefer to sell internet service
to 50 residents of a single apartment building than 50 households spread out across
a rural township). See Ex. 2 at 163:10 – 164:19. The uncontroverted evidence is that
third parties increased their service offerings and deployed new promotions in the
geographic area in which Charter and Windstream compete. See id. at 70:5 – 73:18,
90:21 – 92:6; see also Ex. 6 at 96:2 – 97:6.
See Exhibit 12 (J. Jarosz Dep. Ex. 4) and Ex. 6 at 96:2 -97:18.6
6 After obtaining a Windstream “call note” referring to a third party competitor’s “false advertising” regarding Windstream’s bankruptcy, Charter served requests for production
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7. Mr. Jarosz assumes Windstream Holdings, Inc. lost subscribers and revenue, when in fact Windstream Holdings, Inc. does not have any subscribers.
Mr. Jarosz testified that he only performed an analysis to determine the
number of subscribers Windstream Holdings, Inc. purportedly lost as a result of the
Charter Advertisement. See Ex. 6 at 95:9-15. He conceded that he could not state
with reasonable certainty the number of subscribers lost by any of the 204 other
companies that have sued Charter for damage in this lawsuit. See id. According to
the sworn declaration of the Chief Executive Officer of Windstream Holdings, Inc.,
however, Windstream Holdings, Inc. does not have any subscribers. See Case No. 19-
22312, Dkt. No. 27 (that Windstream Holdings, Inc. is a discrete corporate entity from
its subsidiaries and that some unarticulated number of those subsidiaries, as opposed
to Windstream Holdings, Inc., have roughly 1.4 million subscribers).
LEGAL STANDARD
Federal Rule of Evidence 702 prohibits the introduction of putative expert
opinion testimony unless it is (1) based on the putative expert’s own “scientific,
technical, or other specialized knowledge”; (2) based on “sufficient facts or data”; (3)
based on “reliable principles and methods”; and (4) based on the reliable application
of those principles and methods to facts of the case. As the proponent of the subject
testimony, Windstream has the burden of establishing that Mr. Jarosz’s testimony
meets the requirements of Rule 702. See United States v. Williams, 506 F.3d 151,
seeking all call notes referencing “bankruptcy” in order to ascertain the scope of other bankruptcy-related advertising direct to Windstream subscribers. Windstream refused to provide the information requested.
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160 (2d Cir. 2007). Failure to satisfy the standard mandates “exclusion of that
unreliable opinion testimony.” Amorgianos, 303 F.3d at 266.
Like all evidence, opinion testimony should be excluded under Rule 403 if its
“probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues or misleading the jury.” In re Fosamax Prods. Liability Litig.,
645 F. Supp. 2d 164, 172 (S.D.N.Y. 2009).
ARGUMENT
Windstream must establish that Rules 702 and 403 of the Federal Rules of
Evidence are satisfied with respect to Mr. Jarosz’s (a) opinion on Windstream’s
alleged lost profits; (b) repetition of Windstream hearsay statements regarding the
alleged costs of Windstream’s corrective advertising in April 2019 and promotional
campaign in September 2019; and (c) opinion as to causation. For each of these
proposed topics of testimony, this Court must “undertake a rigorous examination of
the facts on which the expert relies, the method by which the expert draws an opinion
from those facts, and how the expert applies the facts and methods to the case at
hand.” Id. Failure to satisfy any one of these requirements renders the subject
testimony inadmissible. See Amorgianos, 303 F.3d at 267-270 (instructing that all
aspects of an expert’s opinion—the methodology, the facts underlying the opinion,
and the link between the facts and the conclusion—must be reliable for the testimony
to be admissible).
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I. Mr. Jarosz’s “lost profit” opinion is not admissible because it is not based on his own alleged expertise and is not based on the reliable application of his chosen methodology to reliable data.
Mr. Jarosz’s opinion on lost profits is inadmissible because he simply serves as
a conduit for the opinions of the undisclosed experts that he suggested provided him
with untested opinions regarding (1) the geographic areas where Windstream and
Charter compete and (2) the proper time frame for measuring the impact of direct
mail advertisements in the telecommunications industry. His purported difference
in the difference analysis is dead on arrival because the necessary “common trend
assumption” is demonstrably incorrect. And his foundational assumption that there
are no other possible causes for increased churn in 2019 is demonstrably wrong.
A. Because Mr. Jarosz did not attempt to verify the expert opinions of undisclosed witnesses regarding the number and location of Windstream subscribers for whom Windstream and Charter compete, his lost profit opinion is inadmissible.
Mr. Jarosz’s supposed natural experiment depends on a reliable division
between the “control group” and the “test group.” If the “control group” includes “test
group” subscribers or vice versa, no conclusions can reliably be drawn by comparing
the two. See Ex. 6 at 86:14 – 87:8.
Id. at 27:4 – 28:1; Ex. 1 at Tab 9.
An “expert must be in the end giving his
own opinion.” See Malletier, 525 F. Supp. 2d at 664. “He cannot simply be a conduit
for the opinion of an unproduced expert.” Id.
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See id. (noting that reliance on
an underlying expert opinion must guarantee that the other party has the ability to
depose the underlying expert); Quiles v. Bradford-White Corp., 2012 WL 1355262, at
*7 (N.D.N.Y. Apr. 18, 2012) (same). Accord Forte v. Liquidnet Holdings, Inc., 675 Fed.
Appx. 21, 23-24 (2d Cir. 2017) (exclusion of expert testimony proper where the expert
simply inputted the numbers he was given and made no effort to independently verify
them).
See Exhibit 1, at ¶ 50
He has no idea what evidence was relied on to populate the exchanges, no
idea what methodology was used to create the document relied on, and no idea
whether the information is correct. See Ex. 6 at 27:4-28:1. During his deposition,
Charter’s expert explained the appropriate methodology, which would necessarily
start with census block information provided in mandatory disclosures to the FCC.
See Ex. 2 at 21:25 – 27:24, 54:16-24, 61:24 – 62:14, 166:8 – 167:2, 167:13 – 168:4.
Because Mr. Jarosz made no effort to follow that or any other validation methodology,
his opinion is necessarily unreliable. See e.g., Ex. 6 at 42:1-9.
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See
Ex. 2 at 20:6-18, 32:21 – 33:21, 34:13-19, 35:10 – 36:18, 38:4-7, 38:25 – 39:18, 96:4-20,
97:23 – 98:14, 169:11 – 170:10 and Ex. 8.
See Exhibit 1, compare Tab 9 and Tab 5.
B. Mr. Jarosz’s opinion is unreliable because the time frame he used for his observation purports to be based on the opinions of undisclosed expert witnesses.
Mr. Jarosz claims no specialized knowledge regarding direct mail advertising
in the telecommunications business. See generally Ex. 1.
This assumption is material.
See Ex. 1, Tab 5.
Id.
The opinion that a direct mail advertisement would impact the behavior of
residential telecommunications customers for is contrary to the
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uncontroverted expert opinions of Matthew Kardos and Robert Borders. See Ex. 2 at
66:5 – 67:3, 80:2-22, 81:3 – 82:10, 84:23 – 85:3, 152:19-23 and Exhibit 13 (10-25-19
Expert Report of Robert Borders) (stating that the impact would last 6-8 weeks
. No disclosed expert actually holds the opinion that a commercial direct
mail advertisement will affect consumer conduct for . The opinions that
Mr. Jarosz contends support his choice of are those of the authors
of an article entitled Dynamic and Competitive Effects of Direct Mailings: A
Charitable Giving Application, describing the effect of charitable direct mailings. See
Exhibit 1, p. 31, n. 110. Windstream did not identify these authors as expert
witnesses and Charter cannot depose them. This alone warrants the exclusion of Mr.
Jarosz’s opinion. See Malletier, 525 F. Supp. 2d at 665–66 (expert’s reliance on an
underlying expert opinion is improper where deposing party has no chance to depose
the underlying expert). See also Forte, 675 Fed. Appx. at 23-24.
The only direct evidence is that the Charter Advertisement had by far its
largest impact in March and early April of 2019 and virtually no impact thereafter.
Mr. Jarosz assumes the Charter Advertisement had zero impact in March. See Ex. 6
at 73:15-21. But fifty-one percent (51%) of the telephone calls in response to the
mailer were received between March 20, 2019 and March 31, 2019. See Exhibit 14
(M. Kardos Deposition Ex. 14) and Ex. 2 at 171:24 – 172:3. Sixty-eight percent (68%)
were received before April 7, 2019. See Ex. 14. Eighty-five percent (85%) were
received before May 1, 2019. Id. And 94% were received before June 1, 2019. Id. No
calls were received in July or August. Id.
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See Ex. 13, Attachment C. Moreover, the uncontested opinion testimony from
properly disclosed expert witnesses in this litigation is that the timeframe for reliably
evaluating the impact of a direct mail advertising in the telecommunications industry
is just six to eight weeks. See Ex 13 and Ex. 2 at 15:23 – 16:2, 66:5 – 67:3, 80:2-22,
81:3 – 82:10.
C. Mr. Jarosz’s necessary assumption, that the difference in churn rates between the test group and control group was , is disproved by his own data.
As Mr. Jarosz admits, a necessary precondition for a difference in a difference
study is that there be a parallel or common trend, so that a change in the difference
is meaningful. See Ex. 6 at 82:17 – 84:11. He agrees that this means the difference
between the measured variable—here, customer churn—must be “static” over time.
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Id. The econometeric treatise on which Mr. Jarosz purports to rely is in accord. See
Joshua D. Angrist and Jorn-Steffen Pischke, Mostly Harmless Econometrics: An
Empiricist’s Companion (2009), p. 230 (stating that the key assumption in the
difference-in-difference methodology is that the trends would be the same absent the
variable that is being tested).
See Ex. 1, Tab 5.
The undeniable failure of the common trend requirement is fatal to Mr.
Jarosz’s difference in the difference analysis. See Alberto Abadie, Semiparametric
Difference-in-Differences Estimators 1 (The Review of Economics Studies Limited
2005) (“In particular, the conventional [difference-in-difference] estimator requires
that, in the absence of the treatment, the average outcomes for the treated and control
groups would have followed parallel paths over time.”); Michael Lachner, The
Estimation of Causal Effects by Difference-in-Difference Methods 179 (Foundations
and Trends in Econometrics Vol. 4, No. 3 2010) (“the key assumption of the
[difference-in-difference] approach is the “common trend” assumption that “if the
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treated had not been subjected to the treatment, both subpopulations…would have
experienced the same time trends…”).
D. Mr. Jarosz’s foundational assumption that the Charter Advertisement is the only thing that could have had an incremental impact on Windstream’s churn rate is demonstrably unreliable.
An expert opinion is unreliable and inadmissible if it depends on incorrect
factual assumptions. Macaluso, 2005 WL 563169, at *8 (concluding that an expert’s
testimony must be excluded under Daubert “because it is based on incorrect factual
assumptions that render all of his subsequent conclusions purely speculative.”).
Likewise, to “be reliable, a data analysis must account for major variables, including
confounding variables.” Lamarr-Arruz, 2017 WL 4277188, at *10 (excluding expert
testimony based on statistical analysis that failed to account for “confounding
variables”); Michael J. Saks, et al., Ann. Reference Manual on Sci. Evid. 83, at *10
(2d ed.), available at 2004 WL 48151 (recognizing that observational studies—like
Mr. Jarosz’s difference in the difference analysis—can be useful when “confounding
variables are taken into account by appropriate statistical techniques”).
Here, by his own admission, the “major premise” supporting Mr. Jarosz’s entire
lost profit opinion is the assumption there are no confounding variables to correct for.
See Ex. 6 at 48:11-21, 78:22 – 79:16. That is, Mr. Jarosz admits that the “major
premise” on which his opinion relies is the assumption that only the Charter
Advertisement, and “nothing else” could have had an incremental impact on
Windstream’s churn rate where it competes with Charter. See id. at 78:22-79:16
(admitting that his conclusion can be expressed as a syllogism dependent on the
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major premise that “nothing else had an incremental impact on Windstream’s churn
rate other than Charter’s false advertising campaign”).
See Ex. 1 at ¶ 60.
Because that assumption is demonstrably wrong, his opinion is inadmissible. Accord,
e.g., Abbott Biotechnology, 2014 WL 7330777, at *16 (excluding the opinion of John
Jarosz for improperly assuming that 100% of the defendant’s sales resulted in
infringement).
Charter’s new “Spectrum Mobile” product (mobile telephone service bundled
with internet service) was not available in March, April, or May of 2018 and was not
widely marketed in 2018. See Ex. 2 at 173:13-24. But Spectrum Mobile was widely
available and marketed throughout 2019. See id. at 67:11 – 69:4. The ability for
Windstream’s internet–only subscribers to obtain bundled internet and mobile
telephone service by switching to Charter could obviously have had an incremental
impact on Windstream’s churn where it competes with Charter.7 See Ex. 2 at 57:3-
10, 67:11 – 68:16, 68:21 – 69:10.
Likewise, significantly increased and aggressive competition from other
competitors (e.g., AT&T) focused in the geographic area where Windstream and
Charter compete could have had an incremental impact.8 See Ex. 2 at 70:5 – 74:3,
7 Jarosz admits that he did not consider this variable when attributing 100% of the churn variance to the Charter Advertisement. See Ex. 6 at 56:10 – 57:10. 8 Jarosz did nothing to determine whether other competitors in the industry were evenly represented in the Charter Exchanges and Non-Charter Exchanges. See Ex. 6 at 48:11-21.
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77:6-23, 90:21 – 91:18, 164:6-19.
See Exhibit 12 (J. Jarosz Dep. Ex. 4). Mr. Jarosz failed to consider
the impact of that variable as well. See Ex. 6 at 97:3-6.
Mr. Jarosz’s counterfactual assumptions are fatal to his opinion. See Tagatz v.
Marquette Univ., 861 F.2d 1040, 1045 (7th Cir. 1988) (finding that the plaintiff’s data
comparing the salary raises for one group with another showed a difference but did
not provide reliable evidence that the difference was the result of a particular
attribute); Toshiba Corp. v. Imation Corp., No. 9-cv-305-SLC, 2013 WL 7157854, at
*4 (W.D. Wisc. Apr. 5, 2013) (excluding Mr. Jarosz’s expert opinion for erroneously
failing to consider key facts).
II. Mr. Jarosz should be prohibited from testifying about corrective advertising and promotional costs because he has not disclosed expert opinions on those topics and was not designated as a fact witness.
Beyond Windstream’s alleged lost profits, Mr. Jarosz also claims that
Windstream’s damages include increased costs caused by Charter’s actions,
See Ex. 1, at ¶ 8.
The evidence in this case indicates that they are not. See Ex. 2 at 164:6-19. Similarly, Jarosz did not consider whether other competitors in the Charter Exchanges offered new services in 2019. See Ex. 6 at 70:5-13. 9 Despite Charter’s request, Windstream has refused to produce actual audio recordings. Charter does not concede that Windstream’s call notes or transcripts are best evidence.
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Id. at ¶ 72-75. “Simply rehashing evidence about which an
expert has no personal knowledge is impermissible under Rule 702.” Sharkey v. J.P.
Morgan Chase & Co., 978 F. Supp. 2d 250, 252 (S.D.N.Y. 2013) (quoting Ridge
Clearing & Outsourcing Solutions, Inc. v. Khashoggi, 2011 WL 3586468, at *2
(S.D.N.Y. Aug. 12, 2011)). Therefore, Mr. Jarosz’s opinion on Windstream’s alleged
increased costs should be excluded.
III. Mr. Jarosz is not qualified to opine on causation and his methodology is unreliable.
Rather than presuming causation and assessing damages arising therefrom,
Mr. Jarosz renders opinions on causation. See Ex. 1 at ¶ 42-46.
See id. at ¶ 42.10 Mr. Jarosz is not qualified to opine on the issue of
causation in false advertising cases. And he cannot establish that he used a reliable
methodology.
10 See also Ex. 1, at ¶ 43
; ¶ 44
.
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A. Mr. Jarosz’s expertise as an economist does not qualify him to opine on causation in a false advertising case.
Id. at ¶ 4. This does not qualify
him to testify on causation. His CV does not reflect any special training or expertise
whatsoever that would permit him to speak on causation in a Lanham Act case, in
particular as it relates to consumer perception. Id. at Tab 1. Without more, this lack
of qualification mandates exclusion of his opinions on causation. See, e.g., In re M/V
MSC Flaminia, No. 12-cv-8892-KBF, 2017 WL 3208598, at *22-23 (S.D.N.Y. July 28,
2017) (excluding testimony based on a mismatch between the issue and the expertise
of the purported expert).
B. Mr. Jarosz’s methodology is inconsistent with generally accepted practices.
See Exhibit 1, ¶¶ 42 – 46. This mailing was sent to over 800,000 people. See Ex. 2 at
85:7-13.
Daubert identifies several factors to gauge the reliability of expert testimony,
including testing or peer review of the theory, the known (or potential) rate of error,
the use of controls, and general acceptance of the methodology in the field. See
Daubert, 509 U.S. at 590.
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This methodology fails to satisfy any of the Daubert criteria.
See Haggerty v. Upjohn Co., 950 F. Supp. 1160, 1163-64 (S.D. Fla. 1996) (finding that
anecdotal reports are insufficient to establish causation; instead, controlled studies
are needed); Cartwright v. Home Depot U.S.A., Inc., 936 F. Supp. 900, 905 (M.D. Fla.
1996) (“case reports … are no substitute for a scientifically designed and conducted
inquiry”). Therefore, it is unreliable and must be excluded.
In order to provide probative value, the survey evidence used by the expert
should “conform to generally recognized statistical standards.” See Manual for
Complex Litigation, Fourth, §11.493 (2004). These standards include such things as
ensuring that the “sample chosen was representative of the population,” “the data
gathered were accurately reported” and the “data were analyzed in accordance with
accepted statistical principals.” Id. Further, the methodology should ensure that the
“process was conducted so as to ensure objectivity,” that the “survey was conducted
by qualified persons following proper interview procedures,” and that “the questions
asked were clear and not leading.” Id. The alleged records relied on by Mr. Jarosz
satisfy none of these principles.
See Ex. 1 at ¶¶ 42 – 46.
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See e.g., Ex. 5.
See id.
See Exhibit 15 (sample
of Windstream call transcripts). See also id. at WIN01782
.
These flaws are described by Charter’s own expert, Dr. Henry Ostberg, who
has conducted or supervised over 3,000 consumer surveys. He notes that a properly
conducted survey can be probative, but must satisfy well-established and generally
accepted rules for conducting a properly-conducted survey. See Exhibit 16 (H. Ostberg
Expert Report), p. 11 (citing Shari Seidman Diamond and Jerre B. Swann,
Trademark and Deceptive Advertising Surveys, published by the American Bar
Association (2012), p. 177-179). Dr. Ostberg opines that the call notes/transcripts
reviewed by Mr. Jarosz “do not provide meaningful or trustworthy data.” See id. He
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observes that the “respondents need to be selected on a pre-determined basis, and
cannot simply be individuals who decided to offer their opinions.” Id.
He also observes that “the questions must be carefully constructed
to be non-biased and non-leading, and not the result of a free-flowing conversation.
Id. at 11-12. Finally, he
notes “[a]ll the information obtained in the interview must be accurately recorded,
rather than be notes summarizing a conversation.” See id. at 12.
Left without that support, his opinions on
causation are nothing more than his say so. See In re Fosamax Prods. Liability Litig.,
645 F. Supp. 2d at 172 (nothing in Daubert or the Federal Rules of Evidence requires
the admission of opinion evidence connected to existing data only by the ipse dixit of
the expert). For these reasons, Mr. Jarosz’s causation opinions should be excluded.
CONCLUSION
Pursuant to Rules 702 and 403 of the Federal Rules of Evidence, Charter
respectfully requests that this Court exclude John C. Jarosz’s (i) opinion as to
Windstream’s alleged lost profits; (ii) opinion as to the costs of Windstream’s
corrective advertising in April 2019 and promotional campaign in September 2019;
and (iii) opinion as to causation.
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Dated: November 15, 2019 Respectfully submitted,
THOMPSON COBURN LLP
By: /s/ John Kingston John Kingston (pro hac vice) Michael Nepple (pro hac vice) Brian Hockett (pro hac vice) THOMPSON COBURN LLP One U.S. Bank Plaza, Suite 2700 St. Louis, MO 63101 314-552-6000 314-552-7000 (fax) [email protected] [email protected] [email protected]
Attorneys for Defendants Charter Communications, Inc. and Charter Communications Operating, LLC
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CERTIFICATE OF SERVICE
I hereby certify that on this 15th day of November, 2019, I served a true and correct copy of Defendants Charter Communications, Inc. and Charter Communications Operating, LLC’s Memorandum in Support of Motion to Exclude the Testimony of John C. Jarosz via operation of the Court’s Electronic Filing System upon all counsel of record in the adversary proceeding.
Undersigned counsel further certifies that on this 15th day of November, 2019, a true and correct copy of Defendants Charter Communications, Inc. and Charter Communications Operating, LLC’s Memorandum in Support of Motion to Exclude the Testimony of John C. Jarosz will be sent via United States Mail, postage prepaid, to the following:
Terence P. Ross Kristin Lockhart Michael R. Justus 2900 K Street NW North Tower – Suite 200 Washington, DC 20007-5118
Shaya Rochester Katten Muchin Rosenman LLP 575 Madison Avenue New York, NY 10022-2585
United States Trustee ATTN: Paul K. Schwartzburg and Serene Nakano U.S. Department of Justice Office of the United States Trustee 201 Varick Street, Rm. 1006 New York, NY 10014
Steve Rappoport Morrison & Foerster LLP 250 West 55th Street New York, NY 10019-9601
/s/ John Kingston
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19-08246-rdd Doc 118-3 Filed 11/15/19 Entered 11/15/19 18:18:23 Exhibit 1 Pg 1 of 1
19-08246-rdd Doc 118-4 Filed 11/15/19 Entered 11/15/19 18:18:23 Exhibit 4 Pg 1 of 1
19-08246-rdd Doc 118-5 Filed 11/15/19 Entered 11/15/19 18:18:23 Exhibit 5 Pg 1 of 1
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1
Przulj, Nino
From: Lockhart, Kristin <[email protected]>
Sent: Monday, October 21, 2019 5:17 PM
To: Przulj, Nino
Cc: Ross, Terence P.
Subject: Windstream v. Charter - Information from 30(b)(6) (contains AEO information)
Nino,
Please note that we are designating this information as Confidential-Attorneys Eyes Only pursuant to the parties’ stipulated agreement on confidentiality.
Thanks,
Kristin LockhartAssociate
KattenKatten Muchin Rosenman LLP 2900 K Street NW, North Tower - Suite 200 | Washington, DC 20007-5118 direct +1.202.625.3558 [email protected] | katten.com
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19-08246-rdd Doc 118-6 Filed 11/15/19 Entered 11/15/19 18:18:23 Exhibit 11 Pg 2 of 3
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19-08246-rdd Doc 118-6 Filed 11/15/19 Entered 11/15/19 18:18:23 Exhibit 11 Pg 3 of 3
19-08246-rdd Doc 118-7 Filed 11/15/19 Entered 11/15/19 18:18:23 Exhibit 12 Pg 1 of 1
19-08246-rdd Doc 118-8 Filed 11/15/19 Entered 11/15/19 18:18:23 Exhibit 13 Pg 1 of 18
IN THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
) In re: ) Chapter 11
) WINDSTREAM HOLDINGS, INC., et al., ) Case No. 19-22312 (RDD)
) Debtors. ) (Jointly Administered)
) )
WINDSTREAM HOLDINGS, INC., et al., ) )
Plaintiffs, ) Adv. Pro. No. 19-08246 )
vs. ) )
CHARTER COMMUNICATIONS, INC. and ) CHARTER COMMUNICATIONS OPERATING, ) LLC, )
) Defendants. )
)
DECLARATION
I, Robert Borders, declare under penalty of perjury that the statements in my October 25,
2019 expert report titled “Response to October 11, 2019 Expert Report of John C. Jarosz” are true
and correct; they describe my investigation in this matter and represent my considered findings
and conclusions based on my expertise and experience.
Dated: November ___7, 2019 Respectfully,
Robert Borders
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