Oracle Corporation et al v. SAP AG et al

Filing 1151

Declaration of Tharan Gregory Lanier in Support of 1150 Opposition/Response to Motion,, 1149 Opposition/Response to Motion, Declaration of Tharan Gregory Lanier in Support of Defendants' Oppositions to Oracle's Motions for Leave to File Motions for Reconsideration Regarding (1) Saved Development Costs and (2) Up-Sell and Cross-Sell Projections, and Motion for Clarification filed bySAP AG, SAP America Inc, Tomorrownow Inc. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14)(Related document(s) 1150 , 1149 ) (Froyd, Jane) (Filed on 5/1/2012)

EXHIBIT 3

Page 1
Not Reported in F.Supp.2d, 2007 WL 3034372 (N.D.Cal.)
(Cite as: 2007 WL 3034372 (N.D.Cal.))

Only the Westlaw citation is currently available.
United States District Court,
N.D. California.
State of CALIFORNIA, et al., Plaintiffs,
v.
INFINEON TECHNOLOGIES AG, et al., Defendants.
No. C 06-4333 PJH.
Oct. 16, 2007.
Charles M. Kagay, Spiegel Liao & Kagay, LLP,
Kathleen E. Foote, Emilio Eugene Varanini, IV,
Sangeetha M. Raghunathan, Office of the Attorney
General, San Francisco, CA. Clyde E. Sniffen, Jr
State of Alaska, Department of Law, Anchorage,
AK, Nancy M. Bonnell Phoenix, AZ, Bradford Justus Phelps, Office of the Attorney General of
Arkansas, Little Rock, AR, Michael Andrew Undorf, Delaware Department of Justice, Wilmington,
DE, Emilian Bucataru, Lizabeth A. Leeds, Patricia
A. Conners, Antitrust Division Office of the Attorney General State of Florida, Tallahassee, FL, Rodney I. Kimura, Department of the Attorney General,
Honolulu, HI, Brett Talmage Delange, Office of the
Attorney General, Boise, ID, Blake Lee Harrop, Office of the Attorney General, Antitrust Bureau,
Chicago, IL, Jane Bishop Johnson, Louisiana Department of Justice, Baton Rouge, LA, John Robert
Tennis, Attorney General, Antitrust Division, Baltimore, MD, D.J. Pascoe, Michigan Department of
Attorney General, Lansing, MI, Kristen Marie
Olsen, Office of the Attorney General, St. Paul,
MN, Bridgette W. Wiggins, Sondra S. McLemore,
Mississippi Attorney General‘s Office, Antitrust,
Jackson, MS, Deyonna D. Young, Albuquerque,
NM, Todd A. Sattler, North Dakota Office of Attorney General, Bismarck, ND, Thomas A. Bates, Oklahoma Attorney General's Office, Oaklahoma City,
OK, Tim David Nord, Oregon Department of
Justice, Financial Fraud/Consumer Protection,
Salem, OR, Alexis Leslie Barbieri, James A. Do-

nahue, III, Jennifer Jane Kirk, Office of the Attorney General, Pennsylvania Antitrust Section, Harrisburg, PA, C. Havird Jones, Jr., South Carolina
Attorney General's Office, Columbia, SC, Victor J.
Domen, Jr., Nashville, TN, Ronald J. Ockey, Office
of the Attorney General of Utah, Salt Lake City,
UT, Sarah Oxenham Allen, Office of the Atty. General, Antitrust & Consumer, Richmond, VA, Brady
R. Johnson, Attorney General of Washington,
Seattle, WA, Douglas Lee Davis, Attorney General,
Consumer Protection and Antitrust, Charleston,
WV, Eric J. Wilson, Wisconsin Department of
Justice, Gwendolyn J. Cooley, Wisconsin Attorney
General, Madison, WI, Christina Moylan, Maine
Office of the Attorney General, Augusta, ME, Edmund F. Murray, Jr., Rhode Island Department of
Attorney General, Providence, RI, K.D. Sturgis,
Western Division, Raleigh, NC, Maryellen Buxton
Mynear, Kentucky Attorney General, Consumer
Protection, Frankfort, KY, for Plaintiffs.
The Commonwealth of the Northern Mariana Islands by its Attorney General Matthew T. Gregory,
pro se.
Joshua Stewart Stambaugh, Kaye Scholer LLP,
Peter Bruce Nemerovski, Steven H. Bergman, Kenneth Ryan O‘Rourke, O'Melveny & Myers LLP,
Los Angeles, CA, Joel Steven Sanders, George
Charles Nierlich, III, Joshua David Hess, Gibson,
Dunn & Crutcher LLP, Emilio Eugene Varanini,
IV, State Attorney General's Office David C.
Brownstein, Heller Ehrman White & McAuliffe
LLP, Jonathan Edward Swartz, Thelen Reid Brown
Raysman & Steiner LLP, San Francisco, CA, Harrison J. Frahn, IV, Simpson Thacher & Bartlett, Palo Alto, CA, for Defendants.
ORDER GRANTING MOTION FOR CLARIFICATION
PHYLLIS J. HAMILTON, United States District
Judge.
*1 Before the court is plaintiffs' motion for cla-

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Page 2
Not Reported in F.Supp.2d, 2007 WL 3034372 (N.D.Cal.)
(Cite as: 2007 WL 3034372 (N.D.Cal.))

rification with respect to the court's August 31,
2007 order granting in part and denying in part defendants' motion to dismiss plaintiffs' complaint.
Plaintiffs' motion, which is unopposed, seeks clarification that plaintiff State Maryland has authority
under Maryland's Antitrust Act (“MATA”) to seek
monetary damages for the indirect purchases of the
state and its political subdivisions, and that the
court was not actually dismissing the claims for
damages brought on behalf of the state and its political subdivisions. For the reasons that follow,
plaintiffs' motion is GRANTED.
First, clarification is warranted with respect to
those indirect purchaser claims seeking money
damages on behalf of the State. Plaintiffs have
properly noted that the court's order could potentially create confusion as to the actual claims being
dismissed, since the order (1) begins discussion of
plaintiffs' MATA claims by noting that defendants
specifically do not target claims on behalf of the
state; but then (2) generally concludes that
“plaintiffs' indirect purchaser claims pursuant to
MATA” are dismissed, without distinction as to
claims brought on behalf of the state, and other indirect purchasers' claims. See August 31, 2007 Order at 32:26-27, 34:7-8. In view of this, plaintiffs
are entitled to clarification that the court's August
31, 2007 order was intended to exempt from dismissal all indirect purchaser claims brought on behalf of the state pursuant to MATA, in view of the
fact that (1) defendants did not seek to dismiss such
claims; and (2) MATA expressly grants the State
Attorney General the ability to bring such claims,
per the exception stated in Md. Com. Law Code
Ann. § 11-209(b)(2)(ii).
Second, clarification is also warranted with respect to indirect purchaser claims seeking money
damages brought on behalf of political subdivisions. Plaintiffs argue that defendants never actually moved to dismiss the State Attorney General's
indirect purchaser claims on behalf of political subdivisions or “governmental purchasers.” Plaintiffs
furthermore argue that the exception contained in

Md. Com. Law Code § 11-209(b)(2)(ii)-which defendants relied on when they expressly declined to
seek dismissal of plaintiffs' claims on behalf of the
state-also applies to claims on behalf of “political
subdivisions.”
The court's order did not directly address
whether indirect purchaser claims brought on behalf of political subdivisions can qualify under the
limited exception for indirect purchaser standing
codified at section 11-209(b)(2)(ii) of MATA. This
is because, upon review of the parties' original arguments, the matter was not sufficiently highlighted
by the parties. Indeed, defendants' motion was unclear as to whether defendants even sought to dismiss indirect purchaser claims brought on behalf of
political subdivisions or government entities in the
first place. Regardless, upon review of plaintiffs' arguments here, in conjunction with the language of
the statute and defendants' non-opposition to this'
motion, the court agrees with plaintiffs that the indirect purchaser claims “on behalf of political subdivisions” are permissible, as an exception to
MATA's general prohibition on indirect purchaser
suits (as recognized in Davidson v. Microsoft
Corp., 143 Md.App. 43, 792 A.2d 336, 344
(Md.Ct.Spec.App.2002)). The exception is codified
at section 11-209(b)(2)(ii).
*2 In sum, therefore, the court hereby
GRANTS plaintiffs' motion for clarification, and
holds that the court's August 31, 2007 order does
not contemplate dismissal of plaintiffs' indirect purchaser claims under MATA, brought on behalf of
either the State or its government entities pursuant
to Md. Com. Law Code § 11-209(b)(2)(ii).
IT IS SO ORDERED.
N.D.Cal.,2007.
California v. Infineon Technologies AG
Not Reported in F.Supp.2d, 2007 WL 3034372
(N.D.Cal.)
END OF DOCUMENT

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.