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4822-7890-5226.1

John A. Anderson (#4464) [email protected] Monica S. Call (#11361) [email protected] Jordan C. Bledsoe (#15545) [email protected] STOEL RIVES LLP 201 South Main Street, Suite 1100 Salt Lake City, UT 84111-4904 Telephone: (801) 328-3131 Facsimile: (801) 578-6999 Jason P. Gonzalez (admitted pro hac vice) [email protected] NIXON PEABODY LLP 300 South Grand Avenue, Suite 4100 Los Angeles, CA 90071-3151 Telephone: (213) 629-6000 Facsimile: (213) 629-6001

Fredric C. Nelson (admitted pro hac vice) [email protected] John R. Foote (admitted pro hac vice) [email protected] Matthew A. Richards (admitted pro hac vice) [email protected] NIXON PEABODY LLP One Embarcadero Center, 32nd Floor San Francisco, CA94111-3600 Telephone: (415) 984-8200 Facsimile: (415) 984-8300 Rachel J Adcox (admitted pro hac vice) [email protected] Cristina M. Fernandez (pro hac vice pending) [email protected] Axinn, Veltrop & Harkrider LLP 950 F Street, N.W. Washington, D.C. 20004 Telephone: (202) 912-4700 Facsimile: (202) 912-4701

Attorneys for Defendant Yardi Systems, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

ENTRATA, INC., a Delaware corporation, Plaintiff, v. YARDI SYSTEMS, INC., a California corporation, Defendant.

DEFENDANT YARDI SYSTEMS, INC.’S MOTION FOR SUMMARY JUDGMENT Civil Action No. 2:15-cv-00102-CW-BCW [Gonzalez Declaration and Proposed Order Filed Concurrently Herewith] Hon. Clark Waddoups, District Judge

Case 2:15-cv-00102-CW-BCW Document 527 Filed 03/08/19 Page 1 of 47

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TABLE OF CONTENTS

Page

i

I. INTRODUCTION .............................................................................................................. 1

II. RELIEF SOUGHT .............................................................................................................. 4

III. PERTINENT BACKGROUND FACTS ............................................................................ 4

A. Property Management Software Core Accounting Products .................................. 4 B. Property Management Software Integration Products ............................................ 5 C. The Business Relationship Between Yardi and Entrata is Irreparably Broken ...... 7

IV. STATEMENT OF UNDISPUTED MATERIAL FACTS ................................................. 7

A. Antitrust Claims ...................................................................................................... 7 B. Business Torts ....................................................................................................... 10 C. Contract Claims .................................................................................................... 13

V. ARGUMENT .................................................................................................................... 13

A. Legal Standard for Summary Judgment ............................................................... 13 B. Entrata’s Antitrust Claims Are Foreclosed By Tenth Circuit Precedent .............. 14 C. Entrata’s Antitrust Claims Also Fail Because Entrata Cannot Make the Factual

Showings Required to Support Them ................................................................... 18

1. Entrata’s alleged market definitions fail. .................................................. 18

a. Entrata’s expert analysis is unreliable and inadmissible............... 19 b. There is no genuine issue of material fact that the relevant products

are used by customers managing fewer than 1,000 units .............. 20 c. There is no genuine issue of material fact that Entrata ignores

actual competitors in the Core Accounting Products market........ 21 d. There is no genuine issue of material fact that the Integration

Products market properly includes more than “suite” products that interface with Voyager .................................................................. 22

e. Entrata’s purported Integration Products Market impermissibly contradicts the pleadings ............................................................... 25

2. Entrata lacks standing because it has no evidence of antitrust injury ....... 27

D. Entrata’s Business Tort Claims Fail Because Entrata Cannot Show Any Alleged False Statements Caused Entrata Any Harm ........................................................ 28

1. Entrata’s experts failed to establish economic loss resulting from the alleged business torts ................................................................................ 29

2. No customer witness provided evidence of causation of damages to Entrata from the alleged business torts ..................................................... 31

a. Deposition testimony of customers shows no causation............... 31 b. Entrata’s customer feedback records show no causation .............. 33


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TABLE OF CONTENTS (continued)

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ii

3. Entrata’s own testimony does not show causation, and its witnesses only provided inadmissible hearsay on business tort damages ......................... 34

E. Entrata’s Third Party Contract Breach Claim Fails .............................................. 35

1. The Contract Provisions Defeat Entrata’s Claim ...................................... 36 2. Entrata cannot show a cognizable “termination” occurred ....................... 37

F. Entrata’s Direct Breach of Contract Claim Fails .................................................. 38

VI. CONCLUSION ................................................................................................................. 39


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TABLE OF AUTHORITIES

Page(s)

Cases

Anderson Dev. Co. v. Tobias, 2005 UT 36 (2005)...................................................................................................................30

Atl. Richfield Co. v. USA Petroleum Co., 495 U.S. 328 (1990) .................................................................................................................27

Berken v. Jude, No. 12-CV-02555-RPM, 2013 WL 6152347 (D. Colo. Nov. 22, 2013) .................................29

Berlyn, Inc. v. Gazette Newspapers, Inc., 223 F. Supp. 2d 718 (D. Md. 2002) .........................................................................................20

Bones v. Honeywell Int’l, Inc., 366 F.3d 869 (10th Cir. 2004) .................................................................................................14

Bower v. Stein Eriksen Lodge Owners Ass’n, Inc., 201 F. Supp. 2d 1134 (D. Utah 2002) ......................................................................................30

Brooke Grp. Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209 (1993) .................................................................................................................19

Brosnan v. Dry Cleaning Station, Inc., No. C-08-02028 EDL, 2008 WL 2388392 (N.D. Cal., June 6, 2008) .....................................37

Brown Shoe Co. v. United States, 370 U.S. 294 (1962) .................................................................................................................19

Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477 (1977) .................................................................................................................27

Campfield v. State Farm Mut. Auto. Ins. Co., 532 F. 3d 1111 (10th Cir. 2008) ..............................................................................................22

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) .................................................................................................................14

Christy Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188 (10th Cir. 2009) ...............................................................................................25


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TABLE OF AUTHORITIES (continued)

Page

iv

Cione v. Foresters Equity Servs., Inc., 58 Cal. App. 4th 625 (1997) ....................................................................................................37

Cont’l Trend Res., Inc. v. OXY USA Inc., 44 F.3d 1465 (10th Cir. 1995), judgment vacated on unrelated grounds, 517 U.S. 1216 (1996) ......................................................................................................................26

Cty. of New York v. Grp. Health Inc., 2010 WL 2132246 (S.D.N.Y. May 11, 2010) .........................................................................26

Den-Gar Enter. v. Romero, 94 N.M. 425 (Ct. App. 1980) ...................................................................................................29

Double D Spotting Service, Inc. v. Supervalu, 136 F.3d 554 (8th Cir. 1998) ...................................................................................................18

Eatoni Ergonomics, Inc. v. Research in Motion Corp., 486 F. App’x. 186 (2d Cir. 2012) ............................................................................................16

Farm Bureau Life Ins. Co. v. Am. Nat. Ins. Co., 505 F. Supp. 2d 1178 (D. Utah 2007) ......................................................................................30

Greeling v. Abendroth, 351 Ill. App. 3d 658 (4th Dist. 2004) .......................................................................................36

JetAway Aviation, LLC v. Bd. of Cty. Comm’rs of Cty. of Montrose, Colo., 754 F.3d 824 (10th Cir. 2014) ...........................................................................................14, 27

Johnson v. Seigel, 84 Cal. App. 4th 1087 (2000) ..................................................................................................37

Koessel v. Sublette Cnty. Sheriff’s Dep’t, 717 F.3d 736 (10th Cir. 2013) .................................................................................................14

Lantec, Inc. v. Novell, Inc., 306 F.3d 1003 (10th Cir. 2002) ...............................................................................................17

Mahmud v. Kaufmann, 607 F. Supp. 2d 541 (S.D.N.Y. 2009)......................................................................................26

Mathews v. Lancaster Gen. Hosp., 87 F.3d 624 (3d Cir. 1996).......................................................................................................27


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v

Mercury Cas. Co. v. Maloney, 113 Cal. App. 4th 799 (2003) ..................................................................................................36

Monsanto Co. v. Scruggs, 342 F. Supp. 2d 568 (N.D. Miss. 2004) ...................................................................................26

NAMA Holdings, LLC v. Related World Mkt. Ctr., LLC, 922 A.2d 417 (Del. Ch. 2007)..................................................................................................36

Novak v. Somerset Hosp., 2014 WL 4925200 (W.D. Pa. Sept. 30, 2014) .........................................................................19

Novak v. Somerset Hosp., 625 F. App’x 65 (3d Cir. 2015) ...............................................................................................27

Novell, Inc. v. Microsoft, Corp., 731 F.3d 1064 (10th Cir. 2013) ....................................................................................... passim

Nunes v. Rushton, 299 F. Supp. 3d 1216 (D. Utah 2018) ......................................................................................30

Pac. Bell Tel. Co. v. Linkline Commc’ns, 555 U.S. 438 (2009) .................................................................................................................15

Porous Media Corp. v. Pall Corp., 110 F.3d 1329 (8th Cir. 1997) .................................................................................................29

Sanders v. American Casualty Co., 269 Cal. App. 2d 306 (1969) ...................................................................................................36

Schwartz v. Slawter, 751 F.2d 317 (10th Cir. 1984) .................................................................................................30

Smalley & Co. v. Emerson & Cuming, Inc., 808 F. Supp. 1503 (D. Colo. 1992), aff’d, 13 F.3d 366 (10th Cir. 1993) ..........................24, 25

SOLIDFX, LLC v. Jeppesen Sanderson, Inc., 841 F.3d 827 (10th Cir. 2016) ...........................................................................................16, 17

Spectrum Sports v. McQuillan, 506 U.S. 447 (1993) .................................................................................................................18


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Stoll v. United Way of Champaign Cty., Illinois, Inc., 378 Ill. App. 3d 1048 (2008) ...................................................................................................37

Tal v. Hogan, 453 F.3d 1244 (10th Cir. 2006) ...............................................................................................27

Telecor Commc’ns v. S.W. Bell Tel Co., 305 F.3d 1124 (10th Cir. 2002) ...............................................................................................19

TV Commc’ns Network, Inc. v. Turner Network Television, Inc., 964 F. 2d 1022 (10th Cir. 1992) ..............................................................................................22

United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377 (1956) .................................................................................................................19

United Steelworkers of America v. Rawson, 495 U.S. 362 (1990) .................................................................................................................36

Va. Vermiculite, Ltd. v. W.R. Grace & Co.-Conn., 108 F. Supp. 2d 549 (W.D. Va. 2000) .....................................................................................20

Walker Process Equip. v. Food Mach. & Chem. Corp., 382 U.S. 172 (1965) ...........................................................................................................18, 19

Yardi Systems, Inc. v. Property Solutions Int’l., Inc., CV 13-7764, Dkt. 194 (C.D. Cal. Sept. 19, 2016) ...............................................................3, 11

Statutes

15 U.S.C. § 1125(a)(1)(B) .............................................................................................................28

Utah Code Ann. § 13-11a-4(2)(a) ............................................................................................29, 30

Rules

Fed. R. Civ P. 56 ..............................................................................................................................1

Fed. R. Civ. P. 56(a) ......................................................................................................................13


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Defendant Yardi Systems, Inc. (“Yardi”) respectfully submits this Motion for Summary

Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure and DUCivR 56-1 as to all

nine of the claims in Plaintiff Entrata, Inc.’s (“Entrata”) First Amended Complaint (Dkt. 55).

I. INTRODUCTION1

Yardi Systems was founded in 1984 by Anant Yardi who, working at his dining room

table, personally created its first software product—accounting software to track revenue and

expenses for duplexes and small apartment projects. Since then, Yardi has remained a family-

owned company. With over 6,400 employees in offices around the world, Yardi is built around

its powerful and sophisticated “back office” property management and accounting software

called Voyager. Voyager was built from the ground up to meet the complex needs of property

managers, owners, and accountants, and allows them to navigate specific property management

challenges related to tracking revenues, expenses, accounts receivable and payable, and rental

status, among many other things. Yardi also offers ancillary products including customer-facing

website “portal” software (called RENTCafé), tenant screening, client relationship management,

internet listing services, utility billing, energy management, revenue management, and payment

processing.

The Relationship Between Yardi and Entrata. In 2006, subject to a non-disclosure

agreement, Yardi allowed Entrata to develop a “custom interface” to “link” the database of a

Yardi Voyager customer with Entrata’s portal software, which allowed customers to license and

simultaneously use both Yardi and Entrata’s portal software. Yardi supported Entrata’s use of the

custom interface, which enabled Entrata

1 At times Entrata has sought to improperly argue the purported merits of its claims in voluminous and at times grossly misleading exhibits to unrelated motions, in slide deck presentations, and at oral argument—irrespective of the issues actually before the Court and without the benefit of full and fair briefing. (See Fed. R. Civ. P. 1; see generally Dkts. 450, 477, 484, 491, 495, 501, 505.) However, none of Entrata’s litigation tactics change the undisputed facts, Tenth Circuit precedent, and the other authority, properly presented here, that fully support this motion.


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2 Through this time, Yardi viewed its relationship with Entrata as respectful and

collaborative.

Entrata’s Illegal Conduct. Entrata, however, viewed the Voyager software as antiquated

and Yardi as an easy mark. Unbeknownst to Yardi, and while Yardi continued to help Entrata’s

portal business succeed, Entrata obtained an unlicensed copy of the Voyager software and used it

to help create its own property management software, all the while keeping its property

management software plans a secret and lying to Yardi about its illegal possession of Voyager.

In late 2011 or early 2012, a company that had purposefully concealed its identity began

hinting to the market that new property management software would soon be released. Around

this same time, in mid-February 2012, Yardi asked Entrata if it had a copy of Voyager. The

answer from Entrata’s CEO David Bateman was, unequivocally, “no.” Mr. Bateman confirmed

the answer was “no” in a follow up letter dated February 23, 2012, in which Mr. Bateman also

acknowledged that “Property Solutions is appreciative to Yardi for the efforts . . . in assisting

Property Solutions . . . .”3 Then, at an industry conference in around June 2012, Entrata

announced that it was the mystery company that had hinted at bringing to market new property

management software called Entrata Core.

Hiding its identity in advance of announcing Entrata Core might in and of itself have

been an innocuous marketing strategy, but during this time and for months afterward, Entrata’s

then-President Ben Zimmer and CEO Bateman were repeatedly telling Yardi that Entrata did not

have a copy of Voyager—a lie that Entrata and eventually Entrata’s counsel (at the time)

repeated to Yardi over and over again, both orally and in writing. When Yardi ultimately

2 Property Solutions 6/11/13 Presentation to potential equity partners, PSI-0313157, Ex. 1. All Exhibits referenced herein are attached to the March 8, 2019 Declaration of Jason P. Gonzalez (“Gonzalez Decl.”), attached as Ex. A. 3 Ex. 1021 to 11/14/17 Deposition of Tyler Christiansen (“Depo Ex. 1021”), Ex. 2.


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confronted Entrata with irrefutable evidence that proved Entrata did in fact have a copy of

Voyager, Entrata fell silent and stopped responding.

The California Case. As a result, Yardi had no choice but to file suit, which it did in

October 2013 in the Central District of California (Yardi Systems, Inc. v. Property Solutions Int’l,

Inc., 2:13-cv-07764-FMO-AGRx (“California case”)). Yardi asserted various claims against

Entrata in the California case, and during the course of discovery uncovered the extent to which

Entrata welcomed Yardi’s help on the one hand, while engaging in and concealing an

astonishing level of wrongdoing on the other.4 At trial Yardi believes it will prove: (1) copyright

violations related to Entrata’s unauthorized use of Voyager to help Entrata sell its “portal”

product; (2) breach of contract related to Entrata’s violation of a non-disclosure agreement with

Yardi by reverse engineering Voyager; and (3) misappropriation of Yardi’s trade secrets for the

purpose of deciphering Voyager’s sophisticated methods and techniques and wrongfully

incorporating them into Entrata Core. Although the California case was most recently scheduled

for trial in January 2017 (C.D. Cal. Dkts. 195, 276), Entrata has long argued that the instant case

(“Utah case”)—filed approximately 16 months after Yardi sued Entrata in California—should go

first. The California case still does not have a trial date.

The Utah Case. Entrata filed the Utah case in February 2015. Yardi filed a 12(b)(6)

motion (Dkt. 58), which this Court denied (Dkt. 66). The parties have since undertaken

substantial discovery, performed extensive expert analyses, and engaged in voluminous law and

motion practice. Unlike the depth of wrongdoing by Entrata that Yardi uncovered in the

4 For example, despite initially denying it possessed a copy of Voyager, Entrata later admitted it possessed a copy in the past, later admitted it still possessed a copy, and later was forced to admit it had multiple copies that were viewed and used by hundreds of Entrata employees—including Entrata’s development team in Pune, India, which came to possess a copy of Voyager when Entrata’s CEO Bateman personally hand-carried it there on an Entrata server. (UF 22; Ex. 27.) Entrata’s attempts to flip the script and cast Yardi as the wrong-doer is Entrata’s only viable option, but this Court should not be fooled.


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California case, discovery in the Utah case reveals that to the extent Entrata is failing in the

marketplace, it has only its own wrongful conduct, poor business decisions, and its products to

blame—not any purportedly anticompetitive or other improper conduct by Yardi.

II. RELIEF SOUGHT

Yardi moves for summary judgment and seeks relief with respect to the following claims:

Summary Adjudication of Entrata’s Antitrust Claims (5, 6, and 75). The undisputed facts establish that: (1) Antitrust liability is precluded by Tenth Circuit precedent; (2) Entrata’s market definition is invalid; and (3) Entrata cannot show any antitrust injury. Summary adjudication in Yardi’s favor on all three antitrust claims is warranted for any one of these reasons.

Summary Adjudication of Entrata’s Business Tort Claims (1, 2, 3 and 4). Because the undisputed facts establish that Entrata cannot show damages as to any of these claims, summary adjudication in Yardi’s favor is warranted.

Summary Adjudication of Entrata’s Contract Claims (8 and 9). Because the undisputed facts establish that (1) there was no cognizable termination of the custom interface in January 2015 (claim 8); and (2) Entrata failed to fulfill the required conditions precedent to suing as a third-party beneficiary (claim 9); and regardless, Entrata cannot show damages (as to claims 8 and 9), summary adjudication in Yardi’s favor is warranted.

III. PERTINENT BACKGROUND FACTS

A. Property Management Software Core Accounting Products6

Yardi competes with many other software companies. One of these companies, RealPage,

describes in its 2016 10-K the competitive landscape for property management and accounting

software (i.e., the “back end” software) this way:

In the market for accounting software we compete with Yardi Systems, Inc. (“Yardi”), MRI Software LLC (“MRI”), Entrata, Inc., formerly Property Solutions International, Inc. (“Entrata”), AMSI Property Management (owned by Infor Global Solutions, Inc.),

5 Entrata has filed a stipulated motion to dismiss its antitrust tying claim (claim 7). Dkt. 515. 6 Entrata defines “Core Accounting Products” in its operative complaint as: “core property management accounting software products (such as Yardi Voyager) used in the multi-family housing industry in the United States by ‘enterprise’-sized property management companies, which typically manage at least 1,000 units.” Dkt. 55, FAC ¶ 96. Without adopting Entrata’s market definition, Yardi uses the term “Core Accounting Products” in this brief for the sake of clarity.


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Intacct Corp, NetSuite Inc., Intuit Inc., Oracle Corporation, PeopleSoft and JD Edwards (each owned by Oracle Corporation), SAP AG, Microsoft Corporation, AppFolio Inc. and various smaller providers of accounting software. High costs are typically associated with switching an organization’s accounting software. In the market for property management software, we face competitive pressure from Yardi and its Voyager products, AMSI Property Management (owned by Infor Global Solutions, Inc.), Bostonpost (owned by MRI), Jenark (owned by CoreLogic), Entrata, ResMan and MRI.7

RealPage itself is a publicly-traded company with over $670 million in total revenue in 2017.

Those numbers are higher today.8

Another leading competitor, publicly-traded AppFolio, entered the real estate software

market in 2008. Since then, it has grown rapidly and increased its revenue from $26.5 million in

2013 to $190.1 million in 2018 (700%).9 In selling its Core Accounting Product Yardi has

encountered, and has lost sales to, AppFolio, ResMan, and Buildium, among others.

B. Property Management Software Integration Products10

The competition in ancillary service software is similarly vigorous. As RealPage

describes it in its 2016 10-K:11

In the client relationship management (“CRM”) market, we compete with providers of contact center and call tracking services, including LeaseHawk LLC, Yardi, Entrata, and numerous regional and local contact centers.

In the marketing and web portal services market, we compete with G5 Search Marketing, Inc., Spherexx LLC, ReachLocal, Inc., Entrata, On-Site.com, Yodle, Inc., Yardi and many local or regional advertising agencies.

In the Internet listing service market, we compete with ForRent (a division of Dominium Enterprises), Apartment Guide (a division of RentPath, Inc.), Rent.com (owned by RentPath, Inc.), RentPath, Inc., Apartments.com (a division of CoStar Group, Inc.), Apartment Finder (a division of CoStar Group, Inc.), Move, Inc., Entrata, Rent

7Excerpts from RealPage, Inc.’s 2016 10-K Form, Ex. 1475 to 9/7/18 Deposition of William Chaney (“Depo. Ex. 1475”) at 18, Ex. 3. 8 RealPage, Inc.’s 2018 10-K Form at 2, Ex. 4. 9 AppFolio, Inc.’s 2015 10-K Form at 3, Ex. 5; AppFolio, Inc.’s 2018 10-K Form at 3, Ex. 6. 10 Entrata defines “Integration Product” in its operative complaint as: “‘plug-in’ or portal special purpose software products (such as Entrata’s Point Solution Products) that integrate or interface with the Core Accounting Products.” Dkt. 55, FAC ¶ 96. Without adopting Entrata’s market definition, Yardi uses the term “Integration Product” in this brief for the sake of clarity. 11 Depo. Ex. 1475 at 18, Ex. 3.


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Café (a division of Yardi), Zillow (and Trulia, Inc.) and many other companies in regional areas.

In the utility billing and energy management market, we compete at a national level with American Utility Management, Inc., Conservice, LLC, Yardi (following its acquisitions of ista North America and Energy Billing Systems, Inc.), Entrata, Ocius LLC (recently acquired by PayLease) and Minol USA, L.P. Many other smaller utility billing companies compete for smaller rental properties or in regional areas.

In the revenue management market, we compete with Entrata, The Rainmaker Group, and Yardi. Certain market research companies such as CoStar Group, Inc. also offer products that present competitive pricing information in a manner that can be used as a tool to manage pricing.

In the payment processing market, we compete with Chase Paymentech Solutions, LLC (a subsidiary of JPMorgan Chase & Co.), First Data Corporation, Fiserv, Inc., MoneyGram International, Inc., On-Site.com, Entrata, PayLease LLC, RentPayment.com (a subsidiary of Yapstone, Inc.), Yardi, a number of national banking institutions and those that take payments directly from tenants.

In addition, many real estate software companies, including Yardi, RealPage, MRI, and

Entrata, have “partnership” programs that allow providers of ancillary software to “interface”

with the back-end property management accounting software of other providers. Yardi’s

program, the Standard Interface Partnership Program (“SIPP”), currently offers over 240 third-

party ancillary Integration Products (up from 57 when the SIPP began in 2013)—and includes

products offered by direct competitors of Yardi such as RealPage and MRI. The program offered

by RealPage called “RealPage Exchange” is similar; it allows 52 ancillary vendors to interface

with RealPage’s back-end software,12 while MRI allows 145,13 ResMan allows 132,14 Entrata

allows 163,15 and AppFolio allows none.16

12 Screenshots from RealPage, Inc. website, “RealPage Exchange is all about TIME” page, accessed on March 6, 2018 at https://www.realpage.com/exchange/, Ex. 7. 13 Screenshots from MRI, Inc. website, “Partners” page, accessed on March 6, 2018 at https://www.mrisoftware.com/partners/, Ex. 8. 14 Screenshots from ResMan, Inc. website, “ResMan Extend” page, accessed on March 6, 2018 at https://myresman.com/integrations/?section=partners, Ex. 9. 15 Screenshots from Entrata, Inc. website, “Integrations” page, accessed on March 6, 2018 at https://www.entrata.com/services/integrations, Ex. 10. 16 See https://www.appfolio.com/features, accessed on March 6, 2018.


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C. The Business Relationship Between Yardi and Entrata is Irreparably Broken

As noted in the Introduction, supra, Yardi offered significant assistance to Entrata over

the years, including repeated offers by Yardi for Entrata to join the SIPP Program. In return,

Entrata stole from Yardi, repeatedly lied to Yardi about it, and sought to profit from its illicit

conduct. Then Entrata got caught. When Yardi and Entrata agreed to meet in Santa Barbara on

June 15, 2015 to discuss putting their differences behind them, Mr. Bateman personally accused

Mr. Yardi of wrongdoing that he characterized as far worse than anything Entrata had done to

Yardi. Although there is a dispute over who said it first, both parties acknowledged before

leaving the meeting that a complete “divorce” was in order, and Mr. Bateman characterized that

result as “good” for Entrata. Entrata may now regret the choices it made, but to the extent Entrata

is suffering in the marketplace as a result, it has only itself to blame.

IV. STATEMENT OF UNDISPUTED MATERIAL FACTS

A. Antitrust Claims

Yardi Faces a Number of Core Accounting Product Competitors Who Serve Property Managers of All Sizes

1.

.17

2.

.18

3.

17 8/27/18 Reply Report of Dr. Gordon Rausser (“Rausser II”) at ¶ 47, Table 2, from Yardi Top Companies Report, March 2017, Ex. 11. 18 7/23/18 Opening Report of Dr. James Kearl (“Kearl I”) at Ex. 9.1.1, based on Yardi Top Companies Report, March 2017, Ex. 12.


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19

4.

.20

5. Thirty-three percent of current Yardi multifamily Voyager customers manage fewer than

1,000 rental units.21

6.

.22

7. In its 2016 10-K, RealPage stated: “The market for many of our solutions are intensely

competitive, fragmented and rapidly changing.”23

8. AppFolio publicly stated, with respect to Core Accounting Products in particular: “The

software industry in general, and in our targeted verticals in particular [i.e., property

management software], are characterized by rapid technological advances [and] . . . intense

competition.”24

9. Both RealPage and AppFolio have experienced increasing revenues every year since at

least 2014.25

19 Rausser II at ¶ 56, Ex. 11. 20 9/7/18 Deposition of William Chaney (“Chaney Depo.”) at 77:14-78:14, Ex. 13. 21 Rausser II at ¶ 42, Ex. 11. 22 5/9/18 Deposition of Scott Bradford (“Bradford Depo.”) at 52:1-5, Ex. 14; 11/15/17 Deposition of Robert Weathers (“Weathers Depo.”) at 30:13-21, Ex. 15. 23 Depo. Ex. 1475 at 18, Ex. 3. 24 AppFolio, Inc. 2018 10-K Form at 15, Ex. 6. 25 See id. at 35; RealPage, Inc.’s 2018 10-K Form at 38, Ex. 4.


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Integration Products Are Sold in a Multitude of Ways and Work with a Number of Core Platforms, and Yardi Faces Competition in this Space

10. Integration Products exist to provide consumers with particular functional enhancements

to Core Accounting Products, and include a wide variety of property management applications

such as marketing, screening, revenue management, utility billing, renter’s insurance,

procurement, and business intelligence.26

11. Yardi has no fixed definition of “suite”—it is simply a shorthand way to indicate two or

more Integration Products with different functionalities that may be marketed and sold

together.27

12.

28

13.

.30

14. RealPage’s Integration Products similarly interface with multiple Core Accounting

Products, including “Yardi Voyager, MRI, JD Edwards, PeopleSoft, and other[s].”31

15.

26 See, e.g., 5/6/15 Yardi Proposal for Landmark, UYARDI1412524-60 at 5, Ex. 16. 27 Id. at 26, Ex. 16. 28 11/8/17 Deposition of Esther Bonardi (“Bonardi Depo.”) at 18:9-21:20, Ex. 17; 3/28/18 Deposition of Coby Rich (“Rich Depo.”) at 114:20-115:21, Ex. 18; 11/14/17 Deposition of Tyler Christiansen (“Christiansen Depo.”) at 33:22-36:11, Ex. 19. 29 As of this writing, nine mutual Yardi-Entrata customers have not yet migrated off of Entrata’s custom interface, and Yardi’s self-hosted clients may elect to continue using Entrata’s custom integration. 30 5/2/18 FRCP 30(b)(6) Deposition of Chase Harrington (“Harrington Depo.”) at 22:20-23:6, Ex. 20; Rich Depo. at 185:23-186:13, Ex. 18. 31 RealPage, Inc., “RealPage Announces ‘Front to Back’ Integration Between Popular Third Party Back Office Accounting Systems and OneSite Front-Office Leasing & Rents.” Accessed 1/18/2019 at https://www.realpage.com/news/realpage-announces-front-to-back-integration-between-popular-third-party-back-office-accounting-systems-and-onesite-front-office-leasing-amp-rents-2/, Ex. 22.


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32

16.

33

17.

34

18. .35

19. Entrata’s First Amended Complaint defined the Integration Products market as “‘plug-in’

or portal special purpose software products (such as Entrata’s point Solution Products) that

integrate or interface with Core Accounting Products.”36

20. Entrata alleged that “Yardi and Entrata, along with other companies, compete in the

Integration Product Market by selling bundles of Integration Products, as well as individual

software products that offer competitive, substitutable functionality (e.g., a specific software

application to manage lease applications or renter’s insurance).”37

21. Entrata initially alleged Yardi had only a “10%” market share in the Integration Product

Market.38

B. Business Torts

22. .39

32 7/20/18 Deposition of Greg Lozinak (“Lozinak Depo.”) at 19:14-20:11, Ex. 23. 33 Id. at 14:2-6, 25:21-27:12, Ex. 23. 34 1/29/2015 email from E. Matulka to E. Bjornn and D. Romero, ENT_00279755, Ex. 24; 4/4/2017 email from S. Holcomb to B. Burke, ENT_00312513-514 at 515, Ex. 25; 4/4/17 email thread re Yardi-Entrata Lawsuit Brings Disruption to Multifamily Operations UYARDI7252639-641, Ex. 26. 35 Bradford Depo. at 27:21-28:20, Ex. 14. 36 Dkt. 55, FAC ¶ 96. 37 Dkt. 55, FAC ¶ 106 (emphasis added). 38 Dkt. 55, FAC ¶ 106. 39 7/13/18 Deposition of David Bateman (“Bateman Depo.”) at 54:1-4, Ex. 27.


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23. Yardi concluded that Entrata stole from, lied to, and cheated Yardi.40

24. On January 14, 2015 Yardi sent to mutual Yardi and Entrata customers a Notice of

Action by Yardi to Resolve Two Custom Interface Cybersecurity Vulnerabilities (“Quarantine”

and “Quarantine Notice”).41

25. In November 2015, Yardi announced that it would no longer host custom interfaces

(“Sunset Notice”).42

26. The parties deposed only six mutual customers.43

40 5/15/18 Deposition of Anant Yardi (“Yardi Depo.”) at 287:9-16, Ex. 28; see also Yardi Systems, Inc. v. Property Solutions Int’l., Inc., CV 13-7764, Dkt. 194 (C.D. Cal. Sept. 19, 2016). 41 See, e.g., Ex. 160 to the 11/29/17 Deposition of Jay Shobe, Ex. 29. Entrata has alleged two false statements as the basis for its business tort claims: (1) the references to “SQL injection” and “.dll” modification in the Quarantine Notice; and (2) the alleged statement that “newer versions of the Voyager application do not integrate” with Entrata’s portal products (“Voyager 7S Statement”) (collectively, the “Yardi Statements”). Dkt. 55, FAC ¶¶ 110-11 118, 125, 133. 42 See, e.g., Letter from Anant Yardi to Realty Management Services dated November 18, 2015, Ex. 272 to the 2/16/18 Deposition of Kim Bender, Ex. 30. 43 Gonzalez Decl. ¶32. 44 See 12/11/17 Deposition of Jeff Weissman (“Weissman Depo.”) at 25:4-27:19, 29:5-10, 54:6-21, 64:21-65:5, Ex. 31. 45 See 1/11/18 Deposition of Patrick Sudderth (“Sudderth Depo.”) at 73:4-23, 67:19-71:10, Ex. 32. 46 See 1/17/18 Deposition of Stephanie Fuhrman (“Fuhrman Depo.”) at 223:20-226:6, 189:12-25, 193:19-24, Ex. 33. 47 See 2/16/18 Deposition of Kim Bender (“Bender Depo.”) at 78:20-79:11, Ex. 34. 48 See Lozinak Depo. at 15:17-16:1, Ex. 23. 49 See 12/6/18 California case Deposition of Marisa Gaedig (“Gaedig Depo.”) at 38:24-40:15, Ex. 35.


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27. In fact, when Yardi told certain customers as early as 200950 that Yardi believed

,51

.52

28. Similarly, Entrata produced three types of customer feedback forms in discovery:

.56

29. On January 15, 2015 (the day after the Quarantine) Entrata CEO Bateman stated during a

Webinar with Entrata customers that the Quarantine did not affect “the key elements of the

integration”; that “the core functionality in the integration is still functioning properly”; that “the

impact on most of our customers or many of our customers has not been significant”; and “[w]ith

a few exceptions, this we don’t believe is affecting to a significant degree most of our Yardi

clients.”57

30. Entrata presented no expert reports or deposition testimony on business tort damages, as

distinct from antitrust damages.58

50 5/3/18 Deposition of Peter Hill (“Hill Depo.”) at 37:4-38:17, Ex. 36; 2/13/09 email between P. Hill and T. Brewer, Depo. Ex. 309, Ex. 37. 51 See also 4/13/11 Email from D. Shroff to G. Gibson and J. Kenney, Depo. Ex. 1304, Ex. 38. 52 Entrata Further Supplemental Response to Interrogatory No. 34 at chart entries for Lincoln, Greystar, Riverstone, Ex. 59. 53 March 8, 2019 Declaration of Karina G. Puttieva (“Puttieva Decl.”) ¶ 3a-b, Ex. 40; 3/30/18 Deposition of David Norton (“Norton Depo.”) at 188:13-200:19, Ex. 41; 4/5/18 Deposition of Melinda Hicken (“Hicken Depo.”) at 134:18-142:9, Ex. 42. 54 Puttieva Decl. ¶ 3b-d, Ex. 40; see e.g., 3/24/15 Net Promoter Score, Ex. 1157 to 3/16/18 Deposition of Bryan Wade (“Depo. Ex. 1157”), Ex. 43. 55 Puttieva Decl. ¶ 3e-f, Ex. 40; see e.g., 5/3/16 Daily Nuggets, Ex. 1043 to 11/15/17 Deposition of Robert Weathers (“Depo. Ex. 1043”), Ex. 44. 56 Puttieva Decl. ¶ 2-4, Ex. 40. 57 Transcript of 1/15/2015 Entrata Webinar at 14:13-22, 15:6-23, 35:1-7, Ex. 45. 58 Kearl I ¶ 110, Ex. 12; 2/27/19 Deposition of Dr. James Kearl (“Kearl Depo.”) at 212:25-213:5, Ex. 46.


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C. Contract Claims

31. Entrata did not seek to mediate this case before filing suit,59

.61

32. Entrata’s custom interface

.62

33. The three customers

.63

34. Entrata’s expert testified that

”64

35. .65

36. Entrata presented no expert reports or deposition testimony on breach of contract

damages, as distinct from antitrust damages.66

V. ARGUMENT

A. Legal Standard for Summary Judgment

Summary judgment is proper “if the movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). “There is no genuine issue of material fact unless the evidence, construed in the light most

59 Gonzalez Decl. ¶ 50. 60 See, e.g., Exs. A and B to March 8, 2019 Declaration of Matthew Dentinger (“Dentinger Decl. Exs.”) at ¶ 17, Ex. 47. 61 See id. ¶ 11, Ex. 47. 62 3/27/18 Deposition of Ryan Byrd (“Byrd Depo.”) at 145:6-7, 149:3-153:17, Ex. 48. 63 Entrata Supplemental Response to Interrogatory No. 40, Ex. 39. 64 2/12/19 Deposition of Vincent Liu (“Liu Depo.”) at 149:17-153:11, Ex. 49. 65 4/26/18 Deposition of Ben Zimmer (“Zimmer Depo.”) at 31:9-34:15, 28:22-31:3, Ex. 50; 7/6/2007 meeting invitation from B. Zimmer, Ex. 1292 to 4/26/18 Deposition of Ben Zimmer, Ex. 51; 3/15/18 Deposition of Jared Hunsaker (“Hunsaker Depo.”) at 155:7-157:15, 319:7-320:6, 103:19-104:5, Ex. 52. 66 Kearl I ¶ 110, Ex. 12; Kearl Depo. at 212:25-213:5, Ex 46.


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favorable to the non-moving party, is such that a reasonable jury could return a verdict for the

non-moving party.” Koessel v. Sublette Cnty. Sheriff’s Dep’t, 717 F.3d 736, 742 (10th Cir. 2013)

(quoting Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004)) (internal quotations

omitted). JetAway Aviation, LLC v. Bd. of Cty. Comm’rs of Cty. of Montrose, Colo., 754 F.3d

824, 831 (10th Cir. 2014). “[T]he moving party is ‘entitled to judgment as a matter of law’

because the nonmoving party has failed to make a sufficient showing on an essential element of

her case with respect to which she has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986).

B. Entrata’s Antitrust Claims Are Foreclosed By Tenth Circuit Precedent

The theory underlying Entrata’s three antitrust claims is that Yardi’s refusal to allow

Entrata to interface with Yardi Voyager was anticompetitive. These claims thus challenge

Yardi’s unilateral conduct. And they are squarely foreclosed by recent Tenth Circuit precedent,

because they have many rational justifications outside of their alleged anticompetitive effect.

In Novell, Inc. v. Microsoft, Corp., Novell sued Microsoft over Microsoft’s decision to no

longer provide Independent Software Vendors (“ISVs”)—including Novell—access to

Microsoft’s Namespace Extensions (NSEs) in advance of the launch of Windows 95. 731 F.3d

1064 (10th Cir. 2013) (Gorsuch, J.). Over the years, Novell’s applications (including

WordPerfect) had greatly increased the popularity of the Windows operating systems. Prior to

the launch of Windows 95, Novell and others had routinely been granted advance access to

Windows’ NSEs in order to allow them to prepare compatible software offerings that could be

launched at the same time as the new version of Windows. Novell, 731 F.3d at 1067-68.

But Microsoft had developed its Microsoft Office suite of products, which competed

directly with Novell’s software. Id. Microsoft recognized that it could gain a competitive

advantage for Microsoft Office if it did not allow Novell and other ISVs to have advance access

to its NSEs for Windows 95. Id. at 1068. Although Windows 95 would lose some immediate


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utility for consumers if ISVs were not allowed advanced access to NSEs, Microsoft believed that

the move ultimately would be profit-maximizing. Id. That advantage turned out to be permanent,

and Novell never recovered as a competitor. Id.

There was no dispute that Microsoft held market power in an operating systems market.

Nevertheless, the Tenth Circuit held that that Microsoft’s revoking of application developers’

access to NSE’s was not actionable under the antitrust laws. Writing for a unanimous panel,

then-Judge Gorsuch reasoned that “‘as a general rule . . . purely unilateral conduct’ does not run

afoul of section 2—‘businesses are free to choose’ whether or not to do business with

others . . . .’” 731 F.3d at 1072 (citing Pac. Bell Tel. Co. v. Linkline Commc’ns, 555 U.S. 438,

448 (2009)). He went on to explain that “[e]xperience teaches that independent firms competing

against one another is almost always good for the consumer and thus warrants a strong

presumption of legality. Acknowledging as much in the form of a general rule gives a degree of

predictability to judicial outcomes and permits reliance by all market participants, themselves

goods for both the competitive process and the goal of equal treatment under the law.” Id. at

1073. The “general rule” that Judge Gorsuch fashioned for determining when an alleged

monopolist’s conduct has run afoul of the antitrust laws was this: “The monopolist’s conduct

must be irrational but for its anticompetitive effect.” Id. at 1075.

Applying that rule in Novell, Judge Gorsuch held that Microsoft’s desire to advantage its

own applications over rival offerings stemmed from a desire to maximize profit, which was

hardly irrational. Id. at 1076-78. He explained that “the process of firms investing in their own

infrastructure and intellectual property and competing rather than colluding normally promotes

competition and consumer gains—and the intent to undo a competitor in this process should

hardly surprise. ‘Competition,’ after all, ‘is a ruthless process. . . . Most businessmen don’t like

their competitors’ and the antitrust laws aren’t designed to be a guide to good manners.” Id.

(internal citations omitted).


4822-7890-5226.1

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The parallels between Novell and this case are inescapable, not least of all for the

similarities between Yardi’s Voyager platform and Microsoft’s operating systems, as well as

those between integration products and the applications in Novell. If Microsoft, as an admitted

operating system monopolist, was legally able to unilaterally disadvantage all rivals in the

provision of applications for its operating system in order to better compete using its own

applications, then Yardi cannot be liable under the antitrust laws for ceasing to allow Entrata—

and only Entrata—to access Voyager with its Integration Products in order to advantage Yardi’s

own integration products. This is especially true given the myriad other rational business

justifications for Yardi’s cessation of its relationship with Entrata.

One such justification is Yardi’s exercise of its own intellectual property rights. “[T]he

invocation of intellectual property rights [is] a presumptively rational business justification that

shields a defendant’s refusal to work with rivals from antitrust liability.” SOLIDFX, LLC v.

Jeppesen Sanderson, Inc., 841 F.3d 827, 843 (10th Cir. 2016); see also Eatoni Ergonomics, Inc.

v. Research in Motion Corp., 486 F. App’x. 186, 190 (2d Cir. 2012) (“[The Sherman Act] does

not obligate [the defendant] to share its patented platform technology, from which [it] derives the

lawful power to exclude others’ use.”). It is undisputed that, at the time Yardi made its decision

to no longer work with Entrata, Yardi believed that Entrata had violated Yardi’s intellectual

property rights, and indeed was prosecuting a lawsuit against Entrata based on that belief.

Like Novell, the Tenth Circuit’s analysis in Jeppesen is instructive. There, the defendant

was a provider of airport terminal charts and had previously worked with the plaintiff to make

these charts available for electronic viewing. Jeppesen, 841 F.3d at 831. The defendant agreed to

license to the plaintiff its integration toolkits—proprietary products to facilitate the integration of

the defendant’s terminal charts into third-party electronic reading devices. Id. Following the

introduction of Apple’s iPad, however, the defendant terminated its collaboration with the

plaintiff in order to develop an iPad application on its own. Id. The Tenth Circuit affirmed the


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district court’s holding that the defendant properly exercised its right to refuse to license its

copyrighted work, and it therefore held the defendant not liable under the antitrust laws. Id. at

841-43. Thus, by the same principle, Yardi’s decision to discontinue Entrata’s access to its

intellectual property is shielded from antitrust liability.

Furthermore, conduct consistent with competition does not support a theory of harm to

competition. See Lantec, Inc. v. Novell, Inc., 306 F.3d 1003, 1030 (10th Cir. 2002). Yardi’s

decision to develop a more stable and secure standard interface (making its accounting products

more competitive) that its integration partners could utilize to compete against Yardi’s own

Integration Products is procompetitive.67 This move: (a) allows Yardi to elicit meaningful partner

feedback identifying the enhancements necessary for one standard product (as opposed to

hundreds of different interfaces); (b) reduces incidents of database corruption and security risks;

and (c) reduces maintenance costs.68

Finally, it is clear that for a variety of reasons, the relationship between Yardi and Entrata

had irreparably deteriorated.69 There is no dispute that terminating a toxic business relationship is

pro-competitive because a tense and hostile relationship reduces incentives for both parties to

work together to continue to innovate, to the ultimate detriment of consumers.70

For all of these reasons, Entrata’s antitrust claims fail as a matter of law under Novell.

67 See generally 7/23/18 Opening Report of Dr. Gordon Rausser (“Rausser I”) at § VI.A, Ex. 53. Dr. Kearl’s counterargument—

. This is simply incorrect. And Dr. Kearl’s other attempts to diminish the benefits

of the SIPP are conclusory and unsubstantiated statements that do not amount to showing broader harm to competition. 68 Id. at 14-19, Ex. 53. 69 Today, their irreparably damaged relationship is illustrated by Entrata’s views of Yardi and its improper personal attacks on Mr. Yardi, as stated to this Court (see, e.g., Dkts. 501, 505; see also Dkt. 510). 70 Rausser I at 36, Ex. 53.


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C. Entrata’s Antitrust Claims Also Fail Because Entrata Cannot Make the Factual Showings Required to Support Them

Entrata’s antitrust claims fare no better on the facts. To succeed on their claim, Entrata

must (1) establish a relevant product market, and (2) show harm to competition in that market

that led to Entrata’s alleged injury. Failure to create a genuine issue of material fact on either of

these arguments dooms Entrata’s antitrust case; Entrata fails to do so for both.

First, Entrata cannot carry its burden to define a relevant market. The evidence shows

that Yardi has numerous competitors with many products and a wide variety of customers in a

dynamic and highly competitive market. Rather than engaging with these facts, Entrata has

gerrymandered market definitions to exclude legitimate competitors and relevant customers. But

Entrata’s only evidence for its self-serving market definitions comes from deficient expert

analyses, and Entrata thus cannot create a genuine issue of fact for trial.

Second, Entrata cannot show that its alleged injury flows from a harm to competition,

particularly when it advances no evidence that any other competitor was harmed. Without

evidence that Entrata has been adversely affected by a harm to competition, Entrata lacks

standing to assert its antitrust claims.

Each of these defects is enough by itself to warrant summary judgment in Yardi’s favor

on Entrata’s antitrust claims. Together, they show that Entrata is simply trying to weaponize the

antitrust laws in an effort to gain leverage in a business dispute.

1. Entrata’s alleged market definitions fail.

Entrata must properly define a market to sustain its antitrust claims.71 Spectrum Sports v.

McQuillan, 506 U.S. 447, 455-56 (1993). Market definition is necessary because “‘without a

definition of the market there is no way to measure [the defendant’s] ability to lessen or destroy

competition.’” Walker Process Equip. v. Food Mach. & Chem. Corp., 382 U.S. 172, 177 (1965);

71 Because Entrata has not alleged any per se violation of the Sherman Act, it must establish a relevant market in order to prove its Antitrust Claims. Double D Spotting Service, Inc. v. Supervalu, 136 F.3d 554, 560 (8th Cir. 1998).


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see also Telecor Commc’ns v. S.W. Bell Tel Co., 305 F.3d 1124, 1130-31 (10th Cir. 2002) (“The

market power query begins with the determination of the relevant market”) (internal citation

omitted).72

When there are reasonable substitutes available, a price increase in one product will spur

customers to switch to a lower-priced substitute. The relevant market therefore consists of

“products that have reasonable interchangeability for the purposes for which they are produced—

price, use, and qualities considered.” United States v. E.I. du Pont de Nemours & Co., 351 U.S.

377, 404 (1956); see also Brown Shoe Co. v. United States, 370 U.S. 294, 325 (1962).

Expert testimony may be used to establish a market definition, but expert testimony

without a sufficient factual foundation cannot defeat a motion for summary judgment. “When an

expert opinion is not supported by sufficient facts to validate it in the eyes of the law, or when

indisputable record facts contradict or otherwise render the opinion unreasonable, it cannot

support a jury’s verdict. Expert testimony is useful as a guide to interpreting market facts, but it

is not a substitute for them.” Brooke Grp. Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S.

209, 242 (1993) (internal citation omitted).

a. Entrata’s expert analysis is unreliable and inadmissible

Entrata offers the expert opinion of Dr. Kearl to attempt to define its asserted relevant

markets, and the expert opinion of Dr. David to rebut Yardi’s criticisms of Dr. Kearl’s work. For

reasons explained in detail in Yardi’s Daubert motions, neither of these opinions is sufficient to

carry Entrata’s burden of establishing either of the two markets they claim. And where a plaintiff

is unable to “bear the difficult, if not impossible, burden of proving the outer boundaries of a

relevant market without the aid of [its excluded] economic expert,” summary judgment is

72 It is proper for the Court to demarcate the relevant markets at the summary judgment stage in order to assess the sufficiency of evidence as to the other elements of antitrust claims. Novak v. Somerset Hosp., 2014 WL 4925200, at *13-16, 26 (W.D. Pa. Sept. 30, 2014).


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warranted. Berlyn, Inc. v. Gazette Newspapers, Inc., 223 F. Supp. 2d 718, 727 (D. Md. 2002);

Va. Vermiculite, Ltd. v. W.R. Grace & Co.-Conn., 108 F. Supp. 2d 549, 582 (W.D. Va. 2000).

b. There is no genuine issue of material fact that the relevant products are used by customers managing fewer than 1,000 units

Entrata insists—without the benefit of any rigorous analysis—that the relevant markets

are limited to

This

ignores undisputed evidence that

73

Entrata’s lead expert, Dr. Kearl, asserts that

74 But Entrata’s expert cannot substantiate his ipse dixit that:

Recognizing the weakness

of Dr. Kearl’s analysis, Entrata’s rebuttal expert, Dr. David, admits that

”75 76 Rather, Dr. David opines that

the competitive significance of

73 See Rausser II, at ¶ 42 n. 79, Ex. 11; Bradford Depo. at 52:1-5, Ex. 14

); Weathers Depo. at 30:13-21, Ex. 15 (

”). 74 See, e.g., Kearl I, at ¶ 36, Ex. 12. 75 12/7/18 Reply Report of Dr. Jesse David (“David I”) at ¶ 23, Ex. 54. 76 Even Dr. Kearl admitted ” Kearl Depo. at 99:24-100:9, Ex. 46.


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.77 Thus,

Entrata’s own expert underscores the fact that Entrata’s 1,000-unit boundary is arbitrary.

c. There is no genuine issue of material fact that Entrata ignores actual competitors in the Core Accounting Products market

Compounding this error, Entrata fails to consider all of the companies that sell into the

Core Accounting Products market as Entrata has (improperly) defined it. Entrata first limits the

relevant competitors to . But the undisputed facts, reflected in

the chart below, show that not only do other providers compete against Yardi—and often win—

but that many of these competitors also serve customers with more than 1000 units under

management.

Other undisputed evidence shows the competitive viability of the industry participants,

including companies Entrata attempts to exclude from its market. Recent market entrant

77 David I at ¶ 24, Ex. 54 (“

”).

78 Rausser II, at ¶ 56, Table 3, based on yCRM Data, 2015-2018, Opportunity Details, Ex. 11. 79 Id., Ex. 11 80 Rausser II, at ¶ 47, Table 2, from Yardi Top Companies Report, March 2017, Ex. 11. 81 Kearl I, Exhibit 9.1.1, based on Yardi Top Companies Report, March 2017, Ex. 12.


4822-7890-5226.1

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AppFolio publicly stated, with respect to Core Accounting Products in particular: “The software

industry in general, and in our targeted verticals in particular [i.e., property management

software], is characterized by rapid technological advances [and] . . . intense competition.”82 In

its 2016 10-K, RealPage stated: “The market for many of our solutions are intensely competitive,

fragmented, and rapidly changing.”83 Both RealPage and AppFolio have reported increasing

revenues over the past few years.84 And competitors are prepared to act with the shifting

dynamics of this entropic market. For example, RealPage specifically saw Yardi’s announcement

that it was ending its business relationship with Entrata as

85

The failure to encompass all interchangeable substitute products is fatal to Entrata’s

market definition. See Campfield v. State Farm Mut. Auto. Ins. Co , 532 F.3d 1111, 1117-18

(10th Cir. 2008); TV Commc’ns Network, Inc. v. Turner Network Television, Inc., 964 F.2d

1022, 1025 (10th Cir. 1992).

d. There is no genuine issue of material fact that the Integration Products market properly includes more than “suite” products that interface with Voyager

Entrata is equally wrong to limit its claimed Integration Products market to

. Integration Products exist to provide consumers with

particular functional enhancements to Core Accounting Products, and include a wide variety of

property management applications such as marketing, screening, revenue management, utility

billing and energy management, renter’s insurance, procurement, and business intelligence.86

There is no evidence of a consistent industry-wide meaning of “suite”; to Yardi it is simply a

82 AppFolio, Inc.’s 2018 10-K Form at 15, Ex. 6. 83 Depo. Ex. 1475 at 18, Ex. 3. 84 See AppFolio, Inc.’s 2018 10-K Form at 35, Ex. 6; RealPage, Inc.’s 2018 10-K Form, at 38, Ex. 4. 85 Chaney Depo. at 77:14-78:14, Ex. 13. 86 5/6/15 Yardi Proposal for Landmark at 5, Ex. 16.


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shorthand way to indicate two or more Integration Products with different functionalities that

may be marketed and sold together.87 88

Further, the undisputed evidence shows that multifamily property managers have the

option of customizing packages of Integration Products

91

Entrata’s own testimony contradicts its assertion that the market is so narrow. Entrata’s

former Senior Vice President of Sales, Scott Bradford, testified

.92 And according to documents in Entrata’s own

production,

.93

87 See, e.g., id. at 26, Ex. 16. 88 Dr. Kearl also bases this opinion on

See Kearl Depo. at 149:18-150:7, Ex. 46. But this can only affirmatively show how Yardi chose to sell its products, and connotes neither an industry conception of “suite” products nor consumer preferences. Dr. Kearl Id. at 198:15-20, and cannot infer it from bundling charge codes alone. 89 Bonardi Depo. at 18:9-21:20, Ex. 17; Rich Depo. at 114:20-115:21, Ex. 18

); Christiansen Depo. 33:22-36:11, Ex. 19 (same).

90 Lozinak Depo. at 19:14-20:11, Ex. 23. 91 Id. at 14:2-6, 25:21-27:12, Ex. 23. 92 Bradford Depo. at 27:21-28:20, Ex. 14 (

.

93 ENT_00279755, Ex. 24 (


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Further, Entrata’s conception of isolated markets defined by the Core Accounting

platform (specifically, solely Yardi Voyager) does not comport with the realities of the industry.

Integration product vendors do not view their products as being tailored to different core

platforms in different markets; they understand each Integration Product will interface with

multiple platforms. For example,

95 RealPage’s Integration Products similarly interface with

multiple accounting platforms, including “Yardi Voyager, MRI, JD Edwards, PeopleSoft, and

others.”96

There is simply no factual basis for Entrata’s attempt to limit the Integration Product

market only to product “suites” that interface with Yardi’s Voyager product. Dr. Kearl

97 But he did not

analyze (other than one anecdote) whether

This reasoning is entirely circuitous; he assumes

“Plaintiff[s] cannot artificially create antitrust claims by

narrowly defining the relevant market to create the appearance of an antitrust injury.” See

Smalley & Co. v. Emerson & Cuming, Inc., 808 F. Supp. 1503, 1512 (D. Colo. 1992), aff’d, 13

); ENT_00312513- ENT_00312514 at 513, Ex. 25 (

); UYARDI7252639-641, Ex. 26 (same). 94 See, supra, fn. 29. 95 Harrington Depo at 22:20-23:6, Ex. 20; Rich Depo. at 185:23-186:13, Ex. 18. 96 RealPage, Inc., “RealPage Announces ‘Front to Back’ Integration Between Popular Third Party Back Office Accounting Systems and OneSite Front-Office Leasing & Rents.” Accessed January 8, 2019 at https://www.realpage.com/news/realpage-announces-front-to-back-integration-between-popular-third-party-back-office-accounting-systems-and-onesite-front-office-leasing-amp-rents-2/, Ex. 22. 97 August 27, 2018 Rebuttal Report of Dr. James Kearl (“Kearl II”) at ¶ 26, Ex. 55.


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F.3d 366, 368 (10th Cir. 1993); Christy Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188,

1193-94 (10th Cir. 2009).

e. Entrata’s purported Integration Products Market impermissibly contradicts the pleadings

Entrata’s alleged Integration Products market also fails as a matter of law because

Entrata’s expert, Dr. Kearl,

that Entrata pled in its First Amended Complaint.

Specifically, Entrata’s FAC does not limit the Integration Products market to “suites” or

to Voyager-compatible products. Rather, the FAC defines the Integration Products market as

“‘plug-in’ or portal special purpose software products (such as Entrata’s point Solution Products)

that integrate or interface with Core Accounting Products.”98 Entrata further underscores the

inclusion of individually-sold integration products in the relevant market by alleging that “Yardi

and Entrata, along with other companies, compete in the Integration Product Market by selling

bundles of Integration Products, as well as individual software products that offer competitive,

substitutable functionality (e.g., a specific software application to manage lease applications or

renter’s insurance).”99 100

Dr. Kearl

Instead, he proposes a much narrower market consisting of

.101 The Court should reject this eleventh-hour attempt to contort the alleged Integration

Product market to save Entrata’s antitrust claims from summary judgment.

98 Dkt. 55, FAC ¶ 96 (emphasis added). 99 Dkt. 55, FAC ¶ 106 (emphasis added). 100 Entrata initially alleged Yardi had only a “10%” market share in the Integration Product Market. Dkt. 55, FAC ¶ 106. 101 Kearl I at ¶ 44, Ex. 12.


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Antitrust plaintiffs are bound by the definition of the relevant market in their complaint,

absent a timely amendment. See Cont’l Trend Res., Inc. v. OXY USA Inc., 44 F.3d 1465, 1481

n.19 (10th Cir. 1995), judgment vacated on unrelated grounds, 517 U.S. 1216 (1996); Mahmud

v. Kaufmann, 607 F. Supp. 2d 541, 555 (S.D.N.Y. 2009) (“[C]ourts will not consider, on a

motion for summary judgment, allegations that were not pled in the complaint . . . .[T]he

allegations in the Amended Complaint govern the description of the relevant market for purposes

of this motion.”); Monsanto Co. v. Scruggs, 342 F. Supp. 2d 568, 582 (N.D. Miss. 2004).

An expert’s report cannot and does not amend the pleadings, and courts have granted

summary judgment where the plaintiff’s expert does not support the market definition in the

operative complaint. See, e.g., Cty. of New York v. Grp. Health Inc., 2010 WL 2132246, at *5

(S.D.N.Y. May 11, 2010); Monsanto, 342 F. Supp. 2d at 582. Court have likewise rejected

proposed amendments at the summary judgment stage designed to “cure” conflicting market

definitions because such amendments are prejudicial and untimely. For instance, in City of New

York, the court stressed that the defendants already spent three and half years defending a lawsuit

premised on the City’s definition of the relevant market, and granting leave to amend at

summary judgment would force them to analyze (and propound discovery on) an entirely

different market.102 See Cty. of New York v. Grp. Health Inc., 2010 WL 2132246, at *6-7. As the

complaint’s market definition had insufficient factual support without the expert’s opinion, the

court granted summary judgment for the defendants. Id. at *4-7.

Given that Dr. Kearl’s expert opinions fail to support Entrata’s Integration Products

market definition as pled in its FAC, and the undisputed facts do not provide any other basis for

Entrata’s definition, any Entrata claim requiring a defined Integration Products market must fail.

102 Entrata’s seeking to amend its complaint at this stage would also unduly prejudice Yardi, which has litigated this case for over three years relying in good faith on factual allegations in Entrata’s pleadings. Dr. Kearl’s report notwithstanding, Entrata must remain “saddled with [its] Complaint as-filed in this Court.” See Oxy USA, Inc., 44 F.3d at 1482 n.19.


4822-7890-5226.1

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2. Entrata lacks standing because it has no evidence of antitrust injury

Entrata’s failure to raise a genuine issue of fact about its market definitions alone would

justify summary judgment on Entrata’s antitrust claims. But there is another independent reason

that these claims fail as a matter of law—Entrata lacks standing to assert its antitrust claims

because it cannot demonstrate that Entrata has been adversely affected by any harm to

competition resulting from Yardi’s alleged conduct.

In an antitrust case, the plaintiff must establish “antitrust standing,” Tal v. Hogan, 453

F.3d 1244, 1257-58 (10th Cir. 2006), of which “antitrust injury” is a necessary predicate. Novak

v. Somerset Hosp., 625 F. App’x 65, 67 (3d Cir. 2015). Antitrust injury is an “‘injury of the type

the antitrust laws were intended to prevent and that flows from that which makes [the]

defendants’ acts unlawful.’” Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 487

(1977). Because the antitrust laws were enacted for “the protection of competition not

competitors,” id. at 488 (emphasis added), an antitrust plaintiff must show that it has been

“adversely affected by an anticompetitive aspect of the defendant’s conduct.” Atl. Richfield Co.

v. USA Petroleum Co., 495 U.S. 328, 338-39 (1990). In other words, “‘[a]n antitrust plaintiff

must prove that the [defendant’s] challenged conduct affected the prices, quantity or quality of

goods or services,’ not just his own welfare.” Mathews v. Lancaster Gen. Hosp., 87 F.3d 624,

641 (3d Cir. 1996) (internal quotation omitted).

The need to show harm to competition is what keeps enterprising plaintiffs from turning a

run-of-the-mill commercial dispute into a treble damages antitrust lawsuit. As the Tenth Circuit

has emphasized, “the Sherman Act is not concerned with overly aggressive business

practices . . . so as [sic] long as it does not unfairly harm competition.” JetAway Aviation, LLC v.

Bd. of Cnty. Com’rs of Cnty. of Montrose, Colo., 754 F.3d 824, 835 (10th Cir. 2014).


4822-7890-5226.1

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Here, Entrata’s antitrust claims fail because there is no evidence that any alleged harm to

Entrata arose from a broader harm to competition.

103

If left to stand, Entrata’s arguments would turn the doctrine of antitrust standing on its head,

allowing plaintiffs to define impermissibly narrow markets and cast the result of vigorous

competition as a de facto anticompetitive effect. But Entrata’s legal acrobatics are neither

supported by the facts nor well-settled jurisprudence, and its antitrust claims must be dismissed.

D. Entrata’s Business Tort Claims Fail Because Entrata Cannot Show Any Alleged False Statements Caused Entrata Any Harm

Entrata brings four tort claims: injurious falsehoods; false advertising (15 U.S.C.

§ 1125(a)(1)(B)); violations of the Utah Truth in Advertising Act; and tortious interference with

economic relations (claims 1, 2, 3 and 4). All are based on the Yardi Statements: (1) Yardi’s

January 14, 2015, Quarantine Notice; or (2) its Voyager 7S Statement.104 Entrata alleges that the

supposedly false statements “have resulted in, among other things: (a) Entrata losing customers;

(b) Entrata not gaining prospective customers who otherwise would have engaged with Entrata,

but for the injurious falsehoods disseminated by Yardi described herein; and (c) Entrata’s current

customers reducing or discontinuing their business with Entrata.”105

Each of these four claims fails. Even assuming Yardi made false statements (which

Yardi denies), Entrata cannot show that these statements caused Entrata any economic loss.106

Entrata seeks to escape this lack of evidence by having its expert

. Entrata’s attempt fails as a matter of law.

103 See Kearl Daubert motion, filed concurrently herewith. 104 Dkt. 55, FAC ¶¶ 110-11 118, 125, 133. 105 Dkt. 55, FAC ¶ 113. 106 Entrata, for example, claims that “[m]ore than one million spaces and counting are now implemented on Entrata Core.” Screenshot from Entrata, Inc. website “Entrata Core Stories” page, accessed on March 7, 2018 at https://www.entrata.com/stories/, Ex. 56.


4822-7890-5226.1

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1. Entrata’s experts failed to establish economic loss resulting from the alleged business torts

Dr. Kearl focused exclusively on antitrust damages. He limited his opinion on tort and

contractual damages to a single paragraph, stating:

107 In his deposition,

Dr. Kearl again discussed damages from lost profits due to

.108 Otherwise, Dr. Kearl made no mention in his reports or in his deposition of damages

caused by the allegedly false Yardi Statements. In short, Entrata has not even tried to support any

component of damages causally linked to the allegedly false statements that are the foundation

for its business torts claims.109 These claims therefore fail.

Each business tort in question is based on allegation of a false statement of fact that

caused damage. Injurious falsehood requires a falsehood that caused damage: one element of the

claim is that the statement was a substantial factor in causing the plaintiff monetary loss. See

Den-Gar Enter. v. Romero, 94 N.M. 425, 430 (Ct. App. 1980) (plaintiff must prove that he was

specifically injured by the action). The same holds true for the Lanham Act. Porous Media Corp.

v. Pall Corp., 110 F.3d 1329, 1335-36 (8th Cir. 1997) (A “heightened level of . . . proof of

causation and specific injury” is required when the plaintiff is seeking money damages.”);

Berken v. Jude, No. 12-CV-02555-RPM, 2013 WL 6152347, at *2 (D. Colo. Nov. 22, 2013) (to

recover money damages plaintiff must prove “actual injury”). So, too, the Utah False Advertising

statute. Utah Code Ann. § 13-11a-4(2)(a) (“Any person ... may maintain an action to enjoin a

107 Kearl I at ¶ 110, Ex. 12. 108 Kearl Depo. at 212:25-213:05, Ex. 46. 109 Indeed, Entrata’s antitrust and tort damages “theories” contradict each other. On one hand, Entrata’s antitrust claims are based on the premise that, but for the Sunset, customers would have stayed with Entrata. On the other hand, Entrata’s tort claims are based on the premise that customers left Entrata because of the Yardi Statements. Both cannot be true.


4822-7890-5226.1

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continuance of any act in violation of [the Utah Truth in Advertising Act] and, if injured by the

act, for the recovery of damages.”) (emphasis added).

Similarly, Entrata’s tortious interference claim alleges that the interference consisted of

“directly contacting all or nearly all of Entrata’s customers” by way of the Quarantine Notice “to

suggest that Entrata actively engages in SQL injection and .dll modification” which “caused

Entrata to lose customers.”110 To survive summary judgment, Entrata needs evidence that the

alleged false statements themselves caused some compensable harm. It has none.

In Farm Bureau Life Ins. Co. v. Am. Nat. Ins. Co., 505 F. Supp. 2d 1178 (D. Utah 2007),

for example, Farm Bureau’s business disparagement claim alleged that a competitor and its

agents made harmful statements about Farm Bureau to its employees and clients. Granting

defendants’ motion for partial summary judgment, the court explained that to sustain a claim for

business disparagement or injurious falsehood, a plaintiff must demonstrate that the false

statement caused a pecuniary loss. Similarly, in Nunes v. Rushton, 299 F. Supp. 3d 1216, 1240

(D. Utah 2018), the court held that a novelist could not support a claim under the Lanham Act or

Utah Truth in Advertising statute based on negative online reviews of her books posted by a

competitor. Id.; see also Bower v. Stein Eriksen Lodge Owners Ass’n, Inc., 201 F. Supp. 2d 1134,

1143 (D. Utah 2002); Schwartz v. Slawter, 751 F.2d 317 (10th Cir. 1984); Anderson Dev. Co. v.

Tobias, 2005 UT 36 (2005).

Entrata’s business torts claims suffer from the same defect. Entrata seeks to establish

damages causation by alleging a “course of conduct” spanning multiple years (and multiple

claims), without evidence that the misrepresentations caused specific, identifiable harm.

110 Dkt. 55, FAC ¶¶ 131-133.


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2. No customer witness provided evidence of causation of damages to Entrata from the alleged business torts

a. Deposition testimony of customers shows no causation

The parties deposed six customers, not one of whom supported Entrata’s claim that the

Yardi Statements caused Entrata compensable economic loss.

Jeff Weissman, Morgan’s Senior VP of operations, testified that

Patrick Sudderth, Monogram’s VP of information technology, flatly stated that

111 Weissman Depo. at 18:15-20, 46:5-18, Ex. 31. 112 Id. at 14:3-15:7, 29:5-10, Ex. 31 (

. 113 Id. at 25:5-27:19, Ex. 31. 114 Sudderth Depo. at 24:8-23, Ex. 32. 115 Id. at 110:11-15, Ex. 32. 116 Id. at 45:4-14, 107:25-108:9, 108:20-110:9, Ex. 32.


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119

Stephanie Fuhrman, Greystar’s Managing Director of Technology, similarly

124

Kim Bender, head of Fairfield’s property management division, testified that

117 Id. at 72:23-74:16, 88:18-89:14, Ex. 32. 118 Monogram was acquired by Greystar, and Greystar ultimately made this software decision. 119 Sudderth Depo. at 73:4-23; see also 67:19-71:10, Ex. 32. 120 Fuhrman Depo. at 12:6-24, Ex. 33. 121 Id. at 127:19-129:6, Ex. 33. 122 Another portion of the Greystar portfolio used a combination of Yardi and RealPage software. Id. at 186:7-187:13, Ex. 33 123 Id. at 223:7-226:6; see also 189:12-25, 193:19-24, Ex. 33. 124 Id. at 117:6–123:13-14, Ex. 33

. 125 Bender Depo. at 8:18-24; 20:22-21:3, Ex. 34. 126 Id. at 51:4-54:5, Ex. 34.


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.

Greg Lozinak, Monument’s former COO, testified that

Finally, Entrata deposed a Sentinel representative on December 6, 2018, who

b. Entrata’s customer feedback records show no causation

In discovery, Entrata produced documents reflecting three different methods by which

Entrata customers were able to provide feedback regarding Entrata’s software, including reasons

why customers decided to stop using Entrata’s software. These included

127 Id. at 78:20-79:11, Ex. 34. 128 Lozinak Depo. at 18:10-19:5, Ex. 23. 129 Gaedig Depo. at 38:24-40:15, Ex. 35. 130 See Puttieva Decl. ¶ 3a-b, Ex. 40; Norton Depo. at 188:13-200:19, Ex. 41; Hicken Depo. at 134:18-142:9, Ex. 42.


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134 135

Entrata held a webinar on January 15, 2015, to explain, and answer questions regarding,

the Quarantine Notice. Customer comments provided through the webinar do not mention, let

alone demonstrate any concerns about, SQL injection, .dll modifications, data security, or

integration with new Voyager versions. Rather, they focus on whether the custom interface will

continue to function, and more broadly whether Yardi and Entrata will continue to work together

in the future.136

3. Entrata’s own testimony does not show causation, and its witnesses only provided inadmissible hearsay on business tort damages

When asked by Yardi to state the reasons customers gave for terminating, reducing, or

refusing to use Entrata’s products, Entrata’s corporate representative did not mention the Yardi

Statements, or even data security generally, as reasons.137 When asked what customers had told

Entrata about the Quarantine’s effect, he stated that

131 Puttieva Decl. ¶ 3a, Ex. 40. 132 Id. ¶ 3a-b, Ex. 40. 133 See, e.g., Depo. Ex. 1157, Ex. 43. 134 See, e.g., Depo. Ex. 1043, Ex. 44. 135 Puttieva Decl. ¶ 3c-f, Ex. 40. 136 See Transcript of 1/15/2015 Entrata Webinar, Ex. 45. 137 Harrington Depo. at 257:8-263:6, 268:9-270:8, 271:4-272:8, 285:23-290:14, 275:14-277:15, Ex. 20.


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138 When asked more broadly what reasons customers gave for reducing their business

with Entrata, he stated that

139 He never mentioned customers leaving Entrata due to alleged SQL injection, .dll

modifications, or whether Entrata’s products would interface with Voyager 7S.

Moreover, Entrata’s corporate representative made clear in his testimony that the basis of

his knowledge about customers’ decision-making

140 Thus, even if any customers had identified the

alleged Yardi Statements as a basis of termination (and Yardi is aware of none) any such second-

or third-hand statements would be inadmissible hearsay.

In short, the testimony of Entrata’s expert reveals that

That is legally impermissible. Nor does the discovery record reveal that any such evidence exists.

Judgment should be granted for Yardi on each of Entrata’s business tort claims.

E. Entrata’s Third Party Contract Breach Claim Fails

Entrata contends that Yardi breached contracts Yardi had with mutual Entrata-Yardi

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