T-Mobile U.S.A., Inc. v AU Optronics Corporation, et al

Filing 130

OBJECTIONS to MOTION FOR PRETRIAL AND TRIAL SCHEDULES IN DAP CASES (MDL 1827 #5861) by AU Optronics Corporation, AU Optronics Corporation America Inc. (Attachments: # 1 Declaration, # 2 Proposed Order)(Nedeau, Christopher) (Filed on 6/20/2012)

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CHRISTOPHER A. NEDEAU (CA SBN 81297)
CARL L. BLUMENSTEIN (CA SBN 124158)
JAMES A. NICKOVICH (CA SBN 244969)
NOSSAMAN LLP
50 California Street, 34th Floor
San Francisco, CA 94111
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Defendants
AU Optronics Corporation and
AU Optronics Corporation America
(On behalf of and with approval from Defendants
listed on signature page)
UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA – SAN FRANCISCO DIVISION

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IN RE: TFT-LCD (FLAT PANEL)
ANTITRUST LITIGATION

Case No.: M: 07-md-1827 SI
MDL No. 1827

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This Document Relates to Individual Cases:

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Tracfone Wireless, Inc. v. AU Optronics Corp.,
No. 3:10-cv-3205 SI

Case No. 3:10-cv-3205 SI
Case No. 3:10-cv-4346 SI
Case No. 3-10-cv-5458 SI
Case No. 3-10-cv-5616 SI
Case No. 3-10-cv-5625 SI
Case No. 3-11-cv-829 SI
Case No. 3-11-cv-2225 SI
Case No. 3-11-cv-2495 SI
Case No. 3-11-cv-2591 SI
Case No. 3-11-cv-3342 SI
Case No. 3-11-cv-3763 SI
Case No. 3-11-cv-3856 SI
Case No. 3-11-cv-4116 SI
Case No. 3-11-cv-4119 SI
Case No. 3-11-cv-5765 SI
Case No. 3-11-cv-5781 SI
Case No. 3-11-cv-6241 SI
Case No. 3:11-cv-6686 SI
Case No. 3-12-cv-335 SI
Case No. 3-12-cv-1426 SI
Case No. 3-12-cv-1599 SI
Case No. 3-12-cv-2214 SI
Case No. 3-12-cv-2495 SI

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State of Oregon v. AU Optronics Corp.,
No. 3:10-cv-4346-SI
SB Liquidation Trust v. AU Optronics Corp.,
No. 3:10-cv-5458 SI
Sony Electronics, Inc. v. LG Display Co., Ltd.,
No. 3:10-cv-5616 SI
Alfred H. Siegel, as Trustee of the Circuit City Stores,
Inc. Liquidating Trust v. AU Optronics Corp.,
No. 3:10-cv-5625 SI
MetroPCS Wireless, Inc. v. AU Optronics Corp.,
No. 3:11-cv-829 SI
Office Depot, Inc. v. AU Optronics Corp.,
No. 3:11-cv-2225 SI
Jaco Electronics, Inc. v. AU Optronics Corp.,
No. 3:11-cv-2495 SI
T-Mobile U.S.A., Inc. v. AU Optronics Corp.,
No. 3:11-cv-2591 SI

DEFENDANTS’ JOINT OPPOSITION RE:
MOTION FOR PRETRIAL AND TRIAL
SCHEDULES IN DIRECT ACTION CASES

DM1\3372851.2

DEFENDANTS’ JOINT OPPOSITION RE MOTION FOR PRETRIAL AND
TRIAL SCHEDULES IN DIRECT ACTION CASES

MASTER FILE NO.: M-07-1827-SI

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Electrograph Systems, Inc., et al., v. NEC Corp.,
No. 3:11-cv-03342 SI
Interbond Corporation of America v. AU Optronics
Corp., No. 3:11-cv-03763 SI
Schultze Agency Services, LLC, on behalf of
Tweeter Opco, LLC and Tweeter Newco, LLC, v. AU
Optronics Corp., No. 3:11-cv-3856 SI
Hewlett-Packard Co. v. AU Optronics Corp.,
No. 3:11-cv-4116 SI
P.C. Richard & Son Long Island Corporation, et al.
v. AU Optronics Corp., No. 3:11-cv-4119 SI
Tech Data Corp. v. AU Optronics Corp.,
No. 3:11-cv-5765 SI
The AASI Creditor Liquidating Trust, by and
through Kenneth A. Welt, Liquidating Trustee v. AU
Optronics Corp., No. 3:11-cv-5781 SI
CompuCom Systems, Inc. v. AU Optronics Corp.,
No. 3:11-cv-6241 SI
State of Oklahoma v. AU Optronics Corp.,
No. 3:11-cv-6686-SI
Viewsonic Corp. v. AU Optronics Corp.,
No. 3:12-cv-335 SI
NECO Alliance LLC v. AU Optronics Corp.,
No. 3:12-cv-1426 SI
Sony Electronics Inc. v. AU Optronics Corp.,
No. 3:12-cv-1599 SI
Sony Electronics v. Hannstar Display Corp.,
No. 3:12-cv-2214 SI
Rockwell Automation, Inc. v. AU Optronics Corp.,
No. 3:12-cv-2495 SI

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DEFENDANTS’ JOINT OPPOSITION RE MOTION FOR PRETRIAL AND
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MASTER FILE NO.: M-07-1827-SI

TABLE OF CONTENTS

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Page

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I.

INTRODUCTION. ..............................................................................................................1

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II.

BACKGROUND. ................................................................................................................4

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A.

Timing for the Track One Schedule........................................................................ 4

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B.

Meet and Confer on Scheduling for Additional DAP Cases. ................................. 5

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III.

DISCUSSION. .....................................................................................................................6
A.

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Neither the Parties Nor the Court Would Be Well Served by a Single Mega
Track of DAP Cases................................................................................................ 7

B.

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Defendants’ Proposed Track Two and Track Three Allow the Cases to
Proceed in An Orderly, Timely Manner and Accommodates the Litigation
Concerns of the Defendants. ................................................................................. 10

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1.

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Defendants’ Proposed Track Two. ........................................................... 10

2.

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Defendants’ Proposed Track Three. ......................................................... 11
a.

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3.
IV.

The Track Three Schedule Reflects A Modest But Necessary
Extension Beyond the DAPs’ Proposed Track Two......................11

b.

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The Cases on Defendants’ Proposed Track Three Belong on
Track Three. ...................................................................................13

The Court Should Set the Schedule For Track Four Later This Year. ..... 14

CONCLUSION..................................................................................................................15

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DEFENDANTS’ JOINT OPPOSITION RE MOTION FOR PRETRIAL AND
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DEFENDANTS’ JOINT OPPOSITION RE MOTION FOR PRETRIAL AND
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I.

INTRODUCTION.

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The Defendants agree that the Court should order pre-trial schedules for the Direct Action

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Plaintiff (“DAP”) cases not in Track One. The indiscriminate mega-track proposed by the DAPs’

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Motion for Entry of a Track Two Scheduling Order and Trial Setting (the “Motion”), however, is not

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the answer.

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There are two primary problems with the schedule: (1) there is not enough time for

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discovery in a number of the “twenty-three” DAP cases plaintiffs identify; 1 and (2) the burdens of

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discovery deadlines, expert reports and depositions, and summary judgment deadlines in the

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“twenty-three” cases at once is simply too great for the parties and the Court.
The DAP cases do not involve cookie-cutter plaintiffs, nor are they cookie-cutter cases. A

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number of the cases on the proposed Track Two involve plaintiffs that only recently filed suit. Some

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of these actions involve substantially complex procurement operations and products (e.g., Hewlett-

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Packard, Sony); new defendants that never previously produced documents, participated in

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discovery, or retained experts (e.g., the NEC defendants); LCD products on which no discovery has

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been taken and no expert has opined (e.g., the industrial LCD panel market); conglomerates of

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entities pursuing claims jointly (e.g., P.C. Richard); and issues which must be resolved by the Ninth

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Circuit before trial (e.g., appeal of denial of arbitration in Jaco). Major additional potential

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claimants, such as Apple, Walmart, and Home Depot, have opted out of the classes but have not yet

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filed complaints. It simply is not feasible – nor is it necessary – to craft a single litigation track that

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takes into account all of the different stages and issues presented.

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The DAPs claim that their mega-track has “twenty-three DAP cases.” Motion, at 4:3-4. The
DAPs have lost track, which is understandable given their number. There are 21 different cases at
issue in the Motion, as the claims by ABC Appliance, Marta Cooperative, and P.C. Richard were
filed as one case. See Case No. 3:11-cv-4119-SI. The Motion also identifies three different Sony
cases, which properly should be grouped together as one. Case Nos. 3:10-cv-5616-SI; 3:12-cv1599-SI; and 3:12-cv-2214-SI. Additionally, the State of Oregon joined in the DAPs’ Motion.
MDL Docket No. 5595. As disclosed during the meet and confer process, Defendants believe that
the State of Oklahoma should also be assigned to a litigation track but was not included in the DAPs’
Motion. Accordingly, the Motion really concerns 21 DAP and AG actions and 26 different plaintiffs
within those actions. For the sake of brevity, this opposition will refer to the Direct Action Plaintiffs
and Attorneys General jointly as “DAPs”.
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DEFENDANTS’ JOINT OPPOSITION RE MOTION FOR PRETRIAL AND
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For that reason, as they did during meet and confer, Defendants propose: (1) six of the most

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advanced DAP cases for a more aggressive Track Two schedule than that proposed by the DAP

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Motion; (2) ten DAP cases for a “Track Three” schedule that trails by roughly four months; and (3)

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five DAP cases filed after December 25, 2011 (and still in their infancy) plus any additional opt-out

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or attorneys general actions for a “Track Four” schedule that should be determined later this year

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following the filing of those additional actions.2 This approach is reasonable, logical, and presents

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no unnecessary delay. In fact, barring unforeseen circumstances, all cases except those filed since

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December 25, 2011 (16 in total) will be ready for trial in February 2014 – only a few months after

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the mega-schedule proposed in the DAP Motion (when cases are ready for trial in November 2013).3
Unlike the schedule proposed in the DAP Motion, Defendants’ proposal allows the parties

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and the Court to prepare for trials in these cases in an orderly and manageable fashion. Like the

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Court’s original Track One schedule that divided the cases into two tracks with the cut-off date for

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Track One at December 1, 2010,4 Defendants’ proposal appropriately staggers deadlines among the

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tracks to allow a focus on cases and claims as they become ripe for adjudication, rather than as part

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of a mad scramble to meet deadlines in “twenty-three” differently situated matters all at once.

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Furthermore, the schedule is crafted to allow complete discovery into each DAP’s claims, ensuring

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that the Court and the parties will be fully informed when addressing the claims in expert discovery

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and pre-trial motions. Importantly, the schedule also allows new litigants like the five NEC

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defendants – who are making every effort to produce documents from locations in the U.S. and Asia

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while they review the voluminous record for the first time and craft their own litigation plan – to

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properly and appropriately prepare their defenses.5 The Defendants’ proposal is reasonable.

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Although Sony Electronics, Inc. v. LG Display Co., Ltd., 3:10-cv-5616 SI, was filed in 2010, it
should proceed with Sony Electronics Inc. v. AU Optronics Corp., 3:12-cv-1599 SI, and Sony
Electronics v. Hannstar Display Corp., No. 3:12-cv-2214 SI, both of which were filed in 2012.

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A copy of the Defendants’ proposed schedule is attached as Appendix A hereto and also is set
forth in the concurrently filed proposed order.

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Order Re: Pretrial and Trial Schedule, Dkt. No. 2165 (Nov. 23, 2010).

Cases against the NEC Defendants only became at issue on February 29, 2012. In the Defendants’
proposed schedule, all NEC Defendants would be on Track Three and Track Four.

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DEFENDANTS’ JOINT OPPOSITION RE MOTION FOR PRETRIAL AND
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In fact, during the meet and confer on this issue, the DAPs never provided any rationale for

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why the Defendants’ proposed separate tracks was not good case management in complex litigation

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such as this. See, e.g., Manual for Complex Litigation, Fourth, Federal Judicial Center, § 10.1

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(“Judges should tailor case-management procedures to the needs of the particular litigation and to

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the resources available from the parties and the judicial system”). Rather, as reflected by the

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conclusory DAP Motion, the DAPs appear to have given little substantive thought to scheduling and

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case management, other than to proceed on as short a schedule as possible and to reduce the time for

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Defendants’ case preparation, even as many defendants simultaneously engage in their long-

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scheduled Track One pre-trial and trial obligations.

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Nowhere is this more evident than the request to schedule cases filed in 2012 with those that

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have been the focus of the parties’ considerable litigation efforts since 2010. The DAPs’ original

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scheduling proposal did not include these new cases; they had not even been filed when the parties

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commenced discussion on scheduling in January 2012 (although DAP counsel ostensibly were aware

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of them). The Motion does not explain how or why these cases should or could proceed within the

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minimum time remaining under the proposed mega-track, where motions to dismiss would not even

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be resolved until only a few months before the close of discovery. Plaintiffs in the late-filed cases

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may very well wish to rush their cases to trial on the grounds that other earlier-filed cases are

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claimed to be ready. But it is not Defendants’ fault that certain DAPs chose to wait until 2012 to

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pursue their claims. If the Court were to accept the Motion’s scheduling proposal, it is Defendants

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that significantly and unfairly would suffer because of the DAPs’ choice to delay. So too would the

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Court, which would simultaneously face innumerable discovery disputes, summary judgment

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motions, and expert analyses.

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In sum, the Court should establish a pre-trial schedule to govern the claims by the 21 DAPs

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and future claimants, but not on a one-size-fits-all basis. Defendants’ proposed schedule should be

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ordered, as it will allow for the timely and fair disposition of the DAPs’ claims, while considering

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the resources and needs of the parties and the Court.

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DEFENDANTS’ JOINT OPPOSITION RE MOTION FOR PRETRIAL AND
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II.

BACKGROUND.

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A.

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There are ten DAP cases currently on Track One. The first of these cases was filed in March

Timing for the Track One Schedule.

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2009,6 four others were filed in late 2009,7 and the remainder were filed in 2010.8 The pre-trial

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schedule for these cases originally was set by the Court’s Order re: Pretrial and Trial Schedule on

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November 23, 2010. MDL Dkt. 2165. Following entry of this Order, however, and even though at

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least half of these cases had been pending for well over a year, the parties agreed to the extension of

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dates set to allow sufficient time for discovery and related work. MDL Dkt. No. 3110, at 1

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(Stipulation and Order Modifying Pretrial Schedule [“Track One Scheduling Order”]). Specifically,

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under the Track One Scheduling Order, discovery was to be concluded in the ten cases by December

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8, 2011, on average approximately 20 months after the Track One cases had been filed.

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Notwithstanding this deadline, all Track One cases required extensions of time beyond

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December 8, 2011 to conclude discovery, with some Track One cases continuing discovery to this

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day. See, e.g., ATS Claim, Dkt. No. 135, Costco, Dkt. No. 98, Eastman Kodak, Dkt. No. 50

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(granting stipulation extending time for plaintiffs to respond to defendants’ contention discovery

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requests to January 30, 2012, and defendants’ deadline to file motions to compel with respect to that

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discovery to March 1, 2012); AT&T Mobility, Dkt. No. 235 (granting stipulation extending time for

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Sanyo to move to compel further responses to the discovery to March 8, 2012); Electrograph, Dkt.

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ATS Claim, LLC v. Epson Electronics America, Inc., et al., Case No. 09-cv-1115 (March 3, 2009).

AT&T Mobility LLC, et al. v. AU Optronics Corporation, et al., Case No. 09-cv-4997 (October 20,
2009); Electrograph Systems, Inc., et al. v. Epson Imaging Devices Corp., et al., Case No. 10-cv0117 (November 6, 2009); Motorola, Inc. v. AU Optronics Corporation, et al., Case No. 09-cv-5840
(October 20, 2009); Nokia Corporation, et al. v. AU Optronics Corporation, et al., Case No. 09-cv5609 (November 25, 2009).
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Best Buy Co., Inc., et al. v. AU Optronics Corporation, et al., Case No. 10-cv-4572 (October 8,
2010); Costco Wholesale Corporation v. AU Optronics Corporation, et al., Case No. 11-cv-0058
(November 30, 2010); Dell Inc., et al. v. Sharp Corporation, et al., Case No. 10-cv-1064 (March 21,
2010); Eastman Kodak Co. v. Epson Imaging Devices Corp., et al., Case No. 10-cv-5452
(December 1, 2010; and Target Corporation, et al. v. AU Optronics Corporation, et al., Case No.
10-cv-4945 (November 1, 2010). Additional cases, including SB Liquidation Trust, State of Oregon,
and TracFone, were originally on Track One, and then voluntarily moved off of Track One because
they needed more time for discovery.
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No. 186 (granting stipulation extending deadline for depositions of former Electrograph employees

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to June 25, 2012); Motorola, Dkt. No. 334 (granting stipulation extending the deadline for Motorola

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to move to compel compliance with the parties’ agreement regarding the discovery to May 7, 2012);

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Nokia, Dkt. No. 149 (granting stipulation extending the deadline for Nokia to supplement its

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responses to the discovery to March 9, 2012, and for Hitachi Displays to move to compel further

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responses to the discovery requests identified in Hitachi Displays’ February 22, 2012, letter to March

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16, 2012); Best Buy, Dkt. No. 127 (granting stipulation extending the deadline for Hitachi Displays

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to move to compel further response to the Discovery to March 8, 2012); Dell, Dkt. No. 216 (granting

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stipulation extending the deadline for AUO to move to compel Dell to supplement its responses to

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the AUO Settlement Discovery Requests to June 15, 2012); Target, Dkt. No. 177 (granting

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stipulation extending the deadline for LG Display to move to compel further response to the

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discovery to March 16, 2012).

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B.

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On January 31, 2012, the DAPs proposed a Track Two litigation schedule for 16 cases not on

Meet and Confer on Scheduling for Additional DAP Cases.

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Track One. Declaration of Stephen H. Sutro [“Sutro Decl.”], Ex. A. The schedule proposed dates

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which were unrealistic and which the DAPs have since abandoned. Defendants, in response to the

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proposal, explained: (1) all of the then-existing 16 plaintiffs were not similarly situated, as some

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filed their lawsuits in 2010 or the beginning of 2011 and – as of February 2012 – had finished the

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initial pleadings stage, while others filed cases more recently and were not close to being at issue; (2)

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some of the cases named new defendants who had not yet had an opportunity to develop a litigation

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strategy or to participate in discovery; and (3) it would not be fair to force defendants to defend the

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cases all at the same time on the same schedule, with some not even ripe for discovery. Sutro Decl.,

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Ex. B.

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Defendants therefore proposed a Track Two that included six cases that were ripe to advance

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faster than the others. Sutro Decl., Ex. B. These cases were all filed in 2010 or the beginning of

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2011 and were well into discovery as of February 2012. Id. Defendants otherwise suggested that

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the remaining cases be on separate, later schedules. Id.

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DEFENDANTS’ JOINT OPPOSITION RE MOTION FOR PRETRIAL AND
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In March, the DAPs asserted that Defendants’ schedule went too far into the future.

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Accordingly, Defendants submitted a further proposal. Sutro Decl., Ex. C. This time, Defendants

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proposed the same six cases for litigation on Track Two, but moved up the pre-trial schedule by

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roughly three months in response to the DAP concerns. Id. The Defendants also identified ten cases

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for Track Three, approximately four months behind Track Two, designed to: (1) avoid overlapping

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motion practice and discovery deadlines; (2) allow the later-filed cases on that Track Three more

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time to develop; (3) permit all of the Boies Schiller cases to proceed together; and (4) allow new

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defendants additional time to get up to speed and prepare their case. Id.9
The DAPs did not respond for a month. When they did, with little discussion or analysis,

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they rejected this approach and again suggested a single litigation track. Sutro Decl., Ex. D.

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Defendants did not agree, and suggested some minor revisions to their earlier proposal, which is the

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schedule presented here.
This Motion followed.

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III.

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DISCUSSION.
Defendants agree that a pre-trial schedule should be ordered for DAP cases that were filed

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through December 1, 2011. Defendants also agree with the matters to be included in the DAP

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schedules and the sequencing of those matters.

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Defendants depart, however, on the following issues: (1) whether there should be a mega-

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track of 21 DAP cases; and (2) if there is a mega-track, the timing of the deadlines that might

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account for the different stages of the litigations and defendants in those cases, as well as the amount

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of time between deadlines that might allow the parties to meet the responsive deadlines.

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Defendants, for the reasons discussed fully below, therefore propose that: (1) six DAP cases

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filed in 2010 and early 2011 be schedule for a Track Two that includes earlier deadlines than those

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which are provided by the DAPs’ proposal; (2) ten DAP cases which were filed before December

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2011 be scheduled for a Track Three that trails Defendants’ Track Two by only four months; and (3)

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The Defendants did not include the Hewlett-Packard or Sony cases in their proposal because the
DAPs informed the Defendants that these plaintiffs did not want to be included in the negotiations.
Id. The Defendants’ proposed schedule submitted with this Opposition does include these cases.
See Appendix A hereto.
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the remaining cases (including opt-out cases yet to be filed) be set for scheduling this fall after

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further time passes to account for the filing of additional DAP actions.

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A.

Neither the Parties Nor the Court Would Be Well Served by a Single Mega
Track of DAP Cases.

Proceeding on a single litigation track with all currently filed DAP cases fails to account for
the different stages of these cases and presents a myriad of problems.
As an initial matter, meeting the discovery deadlines for cases that are not yet at issue would
place an unworkable and undue burden on the Court and the parties. Even with, on average,
approximately 20 months for discovery post-filing in the ten Track One DAP cases, numerous
extensions of time were and still are required. See Section II.A., supra; Electrograph, Dkt. No. 186
(granting stipulation extending deadline for depositions of former Electrograph employees to June
25, 2012); Dell, Dkt. No. 216 (granting stipulation extending the deadline for AUO to move to
compel Dell to supplement its responses to the AUO Settlement Discovery Requests to June 15,
2012). Many of these delays were the result of plaintiffs’ failure to provide discovery timely. Under
the mega-track proposed by the Motion, however, all but a handful of the cases would have less than
20 months for discovery – some as few as seven months – and the parties and the Court would have
twice as much work to do given the number of cases.
Furthermore, while the DAPs suggest that their various cases are uniform and that discovery
will be “limited,” Motion at 4:5, that suggestion is not accurate.
The DAPs span the spectrum of the complex distribution chain, from direct purchasers –
such as Hewlett-Packard and Sony – with expansive world-wide procurement, manufacturing, and
distribution operations, to distributors of LCD panels (e.g., Jaco) and finished products (e.g., Tech
Data), to those who participated in the wireless market (e.g., Tracfone and T-Mobile), to purchasers
of LCD panels for industrial use (e.g., Rockwell), and to others who resold different types of
finished products with LCD panels in dozens of retail locations across the United States (e.g., Office
Depot and Tweeter). The Motion blurs these distinctions and summarily concludes that “[a] number
of the Track Two DAPs have produced to defendants the key information they need – data on their
purchases and/or sales of LCD panels and products” and “[s]ome Track Two DAPs have produced
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other documents, as well.” Motion at 4:7-9 (emphasis added). This ambiguous statement is in no

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way probative of what actually must be done. Discovery in the cases identified by Defendants for

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Track Three is at the beginning stages. In some cases that are not at issue, discovery has not even

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commenced. Defendants cannot piggy-back on discovery in one case to understand another

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plaintiff’s claims. Defendants must fully understand each plaintiff’s claims in order to defend

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against them.

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Experience in the Track One cases has shown that discovery from plaintiffs is both essential

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and time-consuming. If discovery from plaintiffs had not been sufficiently broad in the Track One

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cases, Defendants would not have discovered key facts for their defense, such as the facts that direct

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purchaser Dell and that retailer Best Buy had knowledge of the Crystal Meetings long before the first

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complaints were filed. Discovery can be especially challenging from bankrupt plaintiffs such as All

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American and Circuit City, because those companies do not have current employees to depose or

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well-organized documents. With plaintiffs requesting billions of dollars in damages, it is a matter of

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due process to give defendants the ability to fully develop discovery from the plaintiffs.

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Nor is it comfort that the “a number of the Track Two DAPs expect to designate several of

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the same experts as the Track One DAP cases.” Motion at 4:16 (emphasis added). The Defendants

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have no idea what this means from a case management perspective and, we expect, the DAPs do not

18

either. While the DAPs plainly want the Court to assume that no new experts or new opinions will

19

be required for the remaining DAP cases, that is hard to believe. Indeed, the DAPs are unwilling to

20

make any such assurances (if we are wrong, they should say so).

21

In addition, it must not be lost on the Court that 11 of the DAP cases proposed for the mega-

22

track include five new and diverse NEC entities as defendants. As this Court knows, the NEC

23

entities were dismissed at an early stage from the class litigation (August 2008) and never were

24

implicated in the Department of Justice investigation or the considerable discovery in the Class,

25

State Attorney General, or Track One proceedings. Sutro Decl., ¶ 7. Now that these entities must

26

defend themselves, they are being required to familiarize themselves with the Court’s earlier rulings,

27

the tens of millions of documents produced (many of which are in Chinese, Japanese, or Korean),

28
DM1\3372851.2

8

DEFENDANTS’ JOINT OPPOSITION RE MOTION FOR PRETRIAL AND
TRIAL SCHEDULES IN DIRECT ACTION CASES

MASTER FILE NO.: M-07-1827-SI

1

and the hundreds of days of deposition testimony that occurred before they were joined in the

2

litigation. Sutro Decl., ¶ 8. This work is in addition to responding to the DAPs recent extensive

3

request for documents located around the world. Id.10 The DAPs also have indicated that they will

4

seek deposition testimony of the NEC companies and their employees, requiring further work before

5

a discovery cut-off. Id. The NEC Defendants also are participating in discovery to the DAPs and

6

for the first time identifying areas for potential expert testimony. Id. Considering that the first of the

7

cases against the NEC defendants was not at issue until February 29, 2012, a little more than three

8

months ago, the NEC companies are left with just over nine months of time under the proposed

9

mega-track to comply with discovery, complete their discovery, and develop their defenses in 11

10

different complex matters. That is not a reasonable or fair amount of time given this massive

11

litigation and is considerably less time than the Track One defendants received, even without

12

factoring in the large number of extensions for discovery and dispositive motions.
Finally, even assuming that all of the DAP cases currently on file would be ready to proceed

13
14

at the same time, the burden of having the close of discovery, expert reports, and summary judgment

15

motions occurring simultaneously in approximately 20 cases at once is too great. Indeed, while it

16

might be reasonable to assume that depositions in a smaller subset of cases could be complete by a

17

December 2012 discovery cut-off, completing depositions in the second half of this year in 19

18

different matters – a number of which have pending motions to dismiss that have not been heard and

19

others where Defendants have not yet appeared – is simply not realistic. This is particularly true

20

because Track One cases simultaneously will be in trial. Likewise, although three months may be an

21

adequate amount of time to take expert depositions and respond to the DAPs’ opening expert reports

22

for a reasonable number of cases, that turnaround time becomes less and less feasible as additional

23

opt-outs are added to the litigation track.11

24

10

25
26
27
28

The DAPs and NEC are working to make this production as efficient as possible, but even so –
given the issues involved – the process of completing the production will take months. Sutro Decl.,
¶ 8.
11

In addition, at the same time as the DAPs’ mega-track of expert discovery, three of the DAP
Track One cases (Costco, Motorola, and Electrograph) will return to their transferor districts for
trial. As a result, in addition to the proceedings before this Court, defendants could face trials in
three different districts in Spring and Summer 2013.
DM1\3372851.2

9

DEFENDANTS’ JOINT OPPOSITION RE MOTION FOR PRETRIAL AND
TRIAL SCHEDULES IN DIRECT ACTION CASES

MASTER FILE NO.: M-07-1827-SI

Accordingly, were the Court to desire a single track for the DAP cases now on file, the

1
2

sequencing and time for the deadlines would need to be greatly adjusted from what the DAPs

3

propose.
In sum, the Defendants should not be unreasonably pressed in their efforts to prepare to

4
5

defend the DAP cases, as would occur if the Court were to adopt the DAPs’ proposed mega-track.

6

The DAPs, not Defendants, chose the time to file their respective cases, taking into account whatever

7

litigation strategy was devised between them and their counsel. Defendants should not have less

8

time for discovery or to prepare their defenses because of the DAPs’ decision to delay.

9

B.

10
11

Defendants’ Proposed Track Two and Track Three Allow the Cases to Proceed
in An Orderly, Timely Manner and Accommodates the Litigation Concerns of
the Defendants.
1.

12

Defendants’ Proposed Track Two.

Defendants’ proposed Track Two schedule calls for earlier pre-trial deadlines than the

13

schedule proposed by the DAPs. That is because the Defendants have identified six cases that may

14

proceed at a more advanced pace than the remaining DAP cases. Those cases include: (1) Tracfone

15

Wireless, Inc. v. AU Optronics Corp., Case No. 3:10-cv-3205-SI, filed May 4, 2010; (2) SB

16

Liquidation Trust v. AU Optronics Corp., Case No. 3:10-cv-5458-SI, filed December 1, 2010; (3)

17

Alfred H. Siegel, as Trustee of the Circuit City Stores, Inc. Liquidating Trust, v. AU Optronics Corp.,

18

Case No. 3:10-cv-5625-SI, filed December 10, 2010; (4) MetroPCS Wireless, Inc. v. AU Optronics

19

Corp, Case No. 3:11-cv-829-SI, filed December 17, 2010; (5) State of Oregon v. AU Optronics

20

Corp., Case No. 3:10-cv-4346-SI, filed August 10, 2010; and (6) T-Mobile U.S.A., Inc. v. AU

21

Optronics Corp., Case No. 3:11-cv-2591-SI, filed April 18, 2011.12 On average, these cases will

22

conclude discovery approximately 23 months after they were filed, not dissimilar to the average of

23

approximately 20 months for the Track One cases. In contrast, under the schedule proposed by the

24

Motion, these cases would conclude discovery on average over two years after they were filed –

25

beyond that which is suggested by Defendants.

26
27
28

12

None of these cases include NEC entities as defendants. All cases against NEC are on
Defendants’ Track Three and Track Four.
DM1\3372851.2

10

DEFENDANTS’ JOINT OPPOSITION RE MOTION FOR PRETRIAL AND
TRIAL SCHEDULES IN DIRECT ACTION CASES

MASTER FILE NO.: M-07-1827-SI

1

For these cases, it is reasonable to disallow further amendment of the complaints, to require

2

that plaintiffs disclose their experts on August 9, 2012, to require that defendants disclose their

3

experts on September 6, 2012, and to require that fact discovery close on November 1, 2012. See

4

Appendix A hereto. The remaining dates in the proposed schedule should then follow the

5

sequencing and timing negotiated by the parties. Scheduling this earlier litigation track will lessen

6

the burden on the parties and the Court by not having multiple deadlines in multiple cases

7

simultaneously, and it will appropriately move these cases to trial sooner as they are at a more

8

advanced litigation stage.

9
10

2.

Defendants’ Proposed Track Three.

Defendants’ Track Three is roughly four months behind the schedule proposed by the

11

Motion, yet it accounts for: (1) the minimum amount of time needed to prepare these cases; (2) the

12

minimum amount of time needed for new defendants to familiarize themselves with the already

13

voluminous record, to identify and designate experts, and to develop defenses to the claims against

14

them; (3) the burdens associated with litigating cases on the earlier DAP tracks; and (4) other factors

15

unique to several of the cases.

16

To be clear, this litigation track already is aggressive and includes less time than the

17

Defendants ordinarily would request. Still, the Defendants believe that the litigation schedule

18

represents acceptable middle ground, provided the DAPs timely comply with their discovery

19

obligations and there are no other unforeseen scheduling issues.

20
21

Below we discuss the rationale for the litigation deadlines and the DAPs to be included in the
proposed Track Three.

22

a.

23
24
25
26
27

The Track Three Schedule Reflects A Modest But Necessary
Extension Beyond the DAPs’ Proposed Track Two.

A comparison of the DAPs’ proposed Track Two and Defendants’ proposed Track Three
reflects that there is no material delay in litigating these cases, especially considering that the DAPs
on this proposed track waited years to file their claims against the Defendants. Key dates in the
competing tracks proposed are as follows:

28
DM1\3372851.2

11

DEFENDANTS’ JOINT OPPOSITION RE MOTION FOR PRETRIAL AND
TRIAL SCHEDULES IN DIRECT ACTION CASES

MASTER FILE NO.: M-07-1827-SI

1

Event
Last day to amend complaints and join
parties with leave of Court13
Disclosure of identities of
plaintiffs’ experts and one
paragraph description of
issues to be addressed by each expert
Disclosure of identities of all defendants’
experts and one paragraph description of
issues to be addressed by each expert
Close of limited fact discovery unique to
DAP and State AG cases
Service of opening expert reports for
plaintiffs
Service of opposition expert reports
Service of reply expert reports
Close of expert discovery
Last day to file dispositive motions
Last day to file oppositions to dispositive
motions
Last day to file reply briefs in support of
dispositive motions
Last day for hearing
dispositive motions

2
3
4
5
6
7
8
9
10
11
12
13
14

DAP Track Two
July 13, 2012

Defendant Track Three
July 13, 2012

September 7, 2012

December 6, 2012

October 12, 2012

January 3, 2013

December 7, 2012

February 28, 2013

January 11, 2013

March 12, 2013

April 12, 2013
June 14, 2013
July 19, 2013
August 23, 2013
September 20,
2013
October 18, 2013

July 10, 2013
October 1, 2013
October 23, 2013
December 11, 2013
January 8, 2014

November 1, 2013

February 27, 2014

February 5, 2014

15
This proposed schedule is reasonable, and the DAPs have never provided any explanation to

16
17

the contrary. The schedule contemplates other litigation deadlines on Tracks One and Two, so as not

18

to cause undue burden to parties litigating cases on each of these tracks. The schedule also provides

19

three extra months to complete discovery and allow for the orderly preparation of the cases (a few of

20

which are not yet at issue). Finally, as explained below, there are ten cases proceeding on this

21

proposed track (the same number as on Track One), which Defendants believe is a maximum that

22

reasonably could be included in a single litigation track for the parties and the Court to be able to

23

effectively administer and meet the various pre-trial deadlines.

24
25
26
27
28

13

The DAPs proposed scheduling order provides that July 13 should be the last date to amend
complaints and join parties “without” leave of court. Proposed Order, MDL Docket No. 5861-1, at
2:15. Defendants assume that this is a typo and that the DAPs intended the proposed order to
include a deadline where leave of court could be sought. At this late stage, the DAPs cannot amend
their Complaints to add parties without leave of court. Fed. Rule Civ. Proc. 15(a)(2).
DM1\3372851.2

12

DEFENDANTS’ JOINT OPPOSITION RE MOTION FOR PRETRIAL AND
TRIAL SCHEDULES IN DIRECT ACTION CASES

MASTER FILE NO.: M-07-1827-SI

b.

1
2
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5
6
7
8
9
10
11
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13
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15
16
17
18
19
20

The Defendants propose the following ten cases for Track Three: (1) Office Depot, Inc. v. AU
Optronics Corp., Case No. 3:11-cv-2225-SI, filed March 31, 2011; (2) Jaco Electronics, Inc. v. AU
Optronics Corp., Case No. 3:11-cv-2495-SI, filed May 20, 2011; (3) Electrograph Systems, Inc. v.
NEC Corp., et al., Case No. 3:11-cv-3342-SI, filed April 5, 2011; (4) Interbond Corp. of America v.
AU Optronics Corp., Case No. 3:11-cv-3763-SI, filed June 3, 2011; (5) Schultze Agency Services,
LLC, on behalf of Tweeter Opco, LLC and Tweeter Newco, LLC, v. AU Optronics Corp.
(“Tweeter”), Case No. 3:11-cv-3856-SI filed July 1, 2011; (6) P.C. Richard & Son Long Island
Corp. v. AU Optronics Corp., Case No. 3:11-cv-4119-SI filed June 16, 2011; (7) Tech Data Corp. v.
AU Optronics Corp., Case No. 3:11-cv-5765-SI filed October 28, 2011; (8) AASI Creditor
Liquidating Trust, by and through Kenneth A. Welt, Liquidating Trustee, v. AU Optronics Corp.,
Case No. 3:11-cv-5781-SI, filed November 2, 2011; (9) CompuCom Systems, Inc. v. AU Optronic
Corp., Case No. 3:11-cv-6241-SI, filed November 15, 2011; and (10) Hewlett-Packard Co. v. AU
Optronics Corp., Case No. 3:11-cv-4116-SI, filed August 29, 2011. On average, the ten cases
proposed for Track Three will complete discovery approximately 19 months after they were filed,
shorter than the approximately 20 months utilized for the Track One cases (and not even factoring in
the numerous extensions of time required in the Track One cases).
The rationale for selecting these ten cases for Track Three is as follows:
•

The following three cases are not yet at issue: CompuCom, Tweeter, and Tech Data.
Hearings on the Motions to Dismiss in these matters will not be heard until August 3,
2012 (Tweeter and Tech Data) and August 24, 2012 (CompuCom). Under the
circumstances, assuming that the cases survive in some fashion, it is not reasonable to
suppose that the Defendants will complete discovery of these entities in four months,
as the DAPs propose. Indeed, even under Defendants’ proposed Track Three, there
are only seven months left for discovery following the hearing dates scheduled for the
responsive motions;

•

Defendants did not answer the remaining DAP cases for Track Three until earlier this
year (January 23, 2012 [Hewlett-Packard], February 29, 2012 [Office Depot,
Electrograph, Interbond, and P.C. Richard], March 23, 2012 [Jaco], and May 31,
2012 [All American]). It is appropriate to allow adequate time for discovery into
these plaintiffs’ claims (and the many associated entities on whose behalf they are
asserting claims). Defendants’ proposal – allowing discovery through the end of

21
22
23
24
25

The Cases on Defendants’ Proposed Track Three Belong on Track
Three.

26
27
28
DM1\3372851.2

13

DEFENDANTS’ JOINT OPPOSITION RE MOTION FOR PRETRIAL AND
TRIAL SCHEDULES IN DIRECT ACTION CASES

MASTER FILE NO.: M-07-1827-SI

1

February, 2013 – is reasonable. Conversely, the DAPs’ proposal, requiring discovery
to be finished at the beginning of December, is not;

2
3

•

Nine of the ten Track Three cases include NEC entities as defendants: Office Depot,
Electrograph, Jaco, Interbond, P.C. Richard, All American, CompuCom, Tweeter,
and Tech Data. As explained, the NEC defendants are new to this litigation and
require (at a minimum) the time proposed by Defendants’ Track Three schedule to
comply with discovery, to conduct discovery, and to prepare their defenses;

•

In Jaco, the NEC defendants have appealed to the Ninth Circuit the Court’s order
denying arbitration of Jaco’s claims based on joint and several liability for purchases
made from other defendants and co-conspirators. Ninth Circuit Case No. 12-1581.
The parties hope that the Ninth Circuit will schedule argument by the beginning of
2013, but that likely is overly optimistic. Placing Jaco on Track Three does not
materially vary the time in which Jaco’s claim will be adjudicated, but it does provide
the Ninth Circuit with additional time to resolve the appeal, which could moot the
district court proceedings against NEC. Furthermore, placing Jaco on a later track is
consistent with the deference that courts are required to show to agreements to
arbitrate; and

•

In Hewlett-Packard, the plaintiff apparently has not yet added all of the defendants it
intends to join.

4
5
6
7
8
9
10
11
12
13
14

The schedule presents no unnecessary delay; in fact, barring delays by plaintiffs or

15

unforeseen circumstances, all cases filed before December 25, 2011 (16 DAP cases in total) will be

16

ready for trial in February 2014 – only a few months after the schedule proposed in the DAP Motion

17

(in which cases are ready for trial in November 2013). At the same time, however, the Court and the

18

parties will not be burdened by multiple, simultaneous deadlines in “twenty-three” cases and –

19

barring unforeseen delay or circumstances – the Defendants’ right to participate in discovery and

20

prepare their defenses should not be jeopardized.
3.

21

The Court Should Set the Schedule For Track Four Later This Year.

22

The cases remaining for Track Four include opt-out cases that were filed in 2012: (1)

23

Viewsonic Corp. v. AU Optronics Corp., No. 3:12-cv-335 SI; (2) NECO Alliance LLC v. AU

24

Optronics Corp., No. 3:12-cv-1426 SI; (3) Rockwell Automation, Inc. v. AU Optronics Corp., No.

25

3:12-cv-2495 SI; (4) Sony Electronics Inc. v. AU Optronics Corp., 3:12-cv-1599 SI; and (5) Sony

26

Electronics v. Hannstar Display Corp., No. 3:12-cv-2214 SI. Another matter, Sony Electronics, Inc.

27

v. LG Display Co., Ltd., 3:10-cv-5616 SI, filed in 2010, should also be included on Track Four so

28

that it may proceed with the cases against other co-conspirators that Sony filed in 2012. Finally,
DM1\3372851.2

14

DEFENDANTS’ JOINT OPPOSITION RE MOTION FOR PRETRIAL AND
TRIAL SCHEDULES IN DIRECT ACTION CASES

MASTER FILE NO.: M-07-1827-SI

1

although not part of the DAP Motion, the Court should include State of Oklahoma v. AU Optronics

2

Corp., No. 3:11-cv-6686 SI, filed December 28, 2011, in Track Four.14 These cases are at their very

3

beginnings and motions to dismiss will not be considered – and in some cases filed – for months.

4

Setting a pre-trial schedule at this stage is premature.

5

Defendants understand that there are additional opt-out cases that are being contemplated.

6

We therefore suggest that the litigation schedule for Track Four be set this fall, once the Court has

7

had the opportunity to consider motions to dismiss and after all involved have a better understanding

8

of the DAP claims that remain.

9

IV.

CONCLUSION.
The Court should establish a pre-trial schedule to govern the claims by DAPs that were filed

10
11

before December 25, 2011. Defendants’ proposed schedule will allow for the timely and fair

12

disposition of the DAPs’ claims, while considering the resources and needs of the parties and the

13

Court. Accordingly, we respectfully request that the Defendants’ proposed schedule be ordered, and

14

that the Court consider a further scheduling order this fall for the scheduling of cases filed after

15

December 25, 2011.
NOSSAMAN LLP

16
17
18

Dated: June 19, 2012

19
20

22
23
24
25

27
28

/s/ Christopher A. Nedeau
Christopher A. Nedeau
Attorneys for Defendants
AU Optronics Corporation and
AU Optronics Corporation America

With the approval of counsel for Chi Mei
Corporation; Chi Mei Optoelectronics USA, Inc.;
Chimei Innolux Corporation (f/k/a Chi Mei
Optoelectronics Corporation); CMO Japan Co.,
Ltd.; Nexgen Mediatech, Inc.; Nexgen Mediatech
USA, Inc.; Chunghwa Picture Tubes, Ltd.; Epson
Electronics America, Inc.; Epson Imaging Devices
Corporation; Seiko Epson Corporation; HannStar
Display Corporation; Hitachi, Ltd.; Hitachi
Displays, Ltd. (n/k/a Japan Display East, Inc.);

21

26

By:

14

Moreover, Sony just recently added Hitachi and Toshiba as defendants in Sony Electronics, Inc. v.
LG Display Co., Ltd., 3:10-cv-5616 SI, and none of the defendants has yet responded to Sony’s
Consolidated Complaint.
DM1\3372851.2

15

DEFENDANTS’ JOINT OPPOSITION RE MOTION FOR PRETRIAL AND
TRIAL SCHEDULES IN DIRECT ACTION CASES

MASTER FILE NO.: M-07-1827-SI

Hitachi Electronic Devices (USA), Inc.; LG Display
Co., Ltd.; LG Display America, Inc.; Mitsui & Co.
(Taiwan), Ltd.; Mitsui & Co. (U.S.A.), Inc.;
Samsung SDI America, Inc.; Samsung SDI Co.,
Ltd.; Sanyo Consumer Electronics Company, Ltd.;
Sharp Corporation; Sharp Electronics Corporation;
Tatung Company of America, Inc.; Tatung
Company; Toshiba Corporation; Toshiba Mobile
Display Co., Ltd.; Toshiba America Electronic
Components, Inc.; Toshiba America Information
Systems, Inc.

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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27
28
DM1\3372851.2

16

DEFENDANTS’ JOINT OPPOSITION RE MOTION FOR PRETRIAL AND
TRIAL SCHEDULES IN DIRECT ACTION CASES

MASTER FILE NO.: M-07-1827-SI

1

APPENDIX A

2

Defendants’ Proposed DAP Pre-Trial and Trial Schedule

3
Track 2 Schedule15
n/a

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24

December 6, 2012

September 6, 2012

January 3, 2013

November 1, 2012

February 28, 2013

November 20, 2012
November 23, 2012
February 28, 2013
March 5, 2013
March 14, 2013

March 12, 2013
March 14, 2013
July 10, 2013
July 15, 2013
July 30, 2013

April 11, 2013

August 27, 2013

May 9, 2013
May 14, 2013
June 5, 2013
July 18, 2013
August 16, 2013

October 1, 2013
October 7, 2013
October 23, 2013
December 11, 2013
January 8, 2014

September 17, 2013

February 5, 2014

October 1, 2013

February 27, 2014

To be determined by
transferor court

To be determined by
transferor court

To be determined by
transferor court

25

Track 3 Schedule16
July 13, 2012

August 9, 2012

Event
Last day to amend complaints and join parties
with leave of Court
Disclosure of identities of
plaintiffs’ experts and one
paragraph description of
issues to be addressed by each expert
Disclosure of identities of all defendants’
experts and one paragraph description of issues
to be addressed by each expert
Close of limited fact discovery unique to DAP
and State AG cases
Service of opening expert reports for plaintiffs
Service of underlying data and Code
Service of opposition expert Reports
Service of underlying data and Code
Plaintiffs and defendants each to provide one
paragraph description of each issue / subject of
summary judgment motions (copies to be
provided to the court)
Parties to serve supplemental disclosure with
one paragraph description of any additional
issues/topics of summary judgment motions
(copies to be provided to the court)
Service of reply expert reports
Service of underlying data and Code
Close of expert discovery
Last day to file dispositive Motions
Last day to file oppositions to dispositive
motions
Last day to file reply briefs in support of
dispositive motions
Last day for hearing
dispositive motions
Pretrial conference and date by which actions
filed outside of ND Cal shall be returned to
courts in which originally filed
Trial begins

4

To be determined by
transferor court

26
27
28

15

Track Two includes the following cases: (1) Tracfone Wireless, Inc. v. AU Optronics Corp., Case
No. 3:10-cv-3205-SI; (2) SB Liquidation Trust v. AU Optronics Corp., Case No. 3:10-cv-5458-SI;

DM1\3372851.2

1

DEFENDANTS’ JOINT OPPOSITION RE MOTION FOR PRETRIAL AND
TRIAL SCHEDULES IN DIRECT ACTION CASES

MASTER FILE NO.: M-07-1827-SI

1
2
3
4
5
6
7
8
9
10
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12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

(3) Alfred H. Siegel, as Trustee of the Circuit City Stores, Inc. Liquidating Trust, v. AU Optronics
Corp., 3:10-cv-5625-SI; (4) MetroPCS Wireless, Inc. v. AU Optronics Corp, Case No. 3:11-cv-829SI; (5) State of Oregon v. AU Optronics Corp., Case No. 3:10-cv-4346-SI; and (6) T-Mobile U.S.A.,
Inc. v. AU Optronics Corp., Case No. 3:11-cv-2591-SI.
16

Track Three includes the following cases: (1) Office Depot, Inc. v. AU Optronics Corp., Case No.
3:11-cv-2225-SI; (2) Jaco Electronics, Inc. v. AU Optronics Corp., Case No. 3:11-cv-2495-SI; (3)
Electrograph Systems, Inc. v. NEC Corp., et al., Case No. 3:11-cv-3342-SI; (4) Interbond Corp. of
America v. AU Optronics Corp., Case No. 3:11-cv-3763-SI; (5) Schultze Agency Services, LLC, on
behalf of Tweeter Opco, LLC and Tweeter Newco, LLC, v. AU Optronics Corp. (“Tweeter”), Case
No. 3:11-cv-3856-SI; (6) P.C. Richard & Son Long Island Corp. v. AU Optronics Corp., Case No.
3:11-cv-4119-SI; (7) Tech Data Corp. v. AU Optronics Corp., Case No. 3:11-cv-5765-SI; (8) AASI
Creditor Liquidating Trust, by and through Kenneth A. Welt, Liquidating Trustee, v. AU Optronics
Corp., Case No. 3:11-cv-5781-SI; (9) CompuCom Systems, Inc. v. AU Optronic Corp., Case No.
3:11-cv-6241-SI; and (10) Hewlett-Packard Co. v. AU Optronics Corp., Case No. 3:11-cv-4116-SI.
DM1\3372851.2

2

DEFENDANTS’ JOINT OPPOSITION RE MOTION FOR PRETRIAL AND
TRIAL SCHEDULES IN DIRECT ACTION CASES

MASTER FILE NO.: M-07-1827-SI