Paul v. Intel Corporation - Consolidated Action

Filing 2115

MEMORANDUM ORDER: the parties shall meet and confer and file a joint status report no later than 10/15/12; the following motions are terminated: Amended Motion to Modify Protective Order and Approve Protocol for Unsealing Documents 1520 ; Plaintiffs' Motion for Sanctions 2291 ; and Intel's Motion to Strike Declaration of Shaun M. Simmons 2354 . Signed by Judge Leonard P. Stark on 9/28/12. Associated Cases: 1:05-md-01717-LPS, 1:05-cv-00485-LPS(ntl)

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IN THE UNITED STATES liSTRICT COURT
FOR THE DISTRICT
DELAWARE

o¥
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INRE:
INTEL CORP. MICROPROCESSOR
ANTITRUST LITIGATION

PHILPAUL, on behalf of himself
and all others similarly situated,
Plaintiffs,
v.
INTEL CORPORATION,
Defendant.

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t L Docket No. 05-1717-LPS
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ivil Action No. 05-485-LPS
ONSOLIDATED

Pending before the Court are two motions fil d quite some time ago in this multi-district
putative class action. They are: (1) Plaintiffs' Motio to Certify Class ("Motion to Certify") (D.I.
753); 1 and (2) Defendant's' Motion to Exclude the T stimony of Plaintiffs' Expert Dr. Keith
Leffler ("Motion to Exclude") (D.I. 1062). These m tions come to the Court along with
Plaintiffs' objections to the recommendation from a pecial Master that the Court deny the
Motion to Certify and grant the Motion to Exclude.

he Court has determined, after some

struggle, that, pursuant to Federal Rule of Civil Proc dure 53(£)(1), it will need to conduct

1

All citations to the Docket Index are to Civi Action No. 05-485-LPS, unless otherwise

noted.
1

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additional evidentiary proceedings in order to make a! ruling on these motions. 2
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BACKGROtD

Cp.r. 1)

This antitrust action was filed in July 2005.

Later in 2005, the Joint Panel on

Multidistrict Litigation created MDL No. 05-171 7, s1 that related cases from multiple districts
could proceed with coordinated pretrial proceedings 1n this Court. (C.A. 05-md-1717-LPS D.I.
1)

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In their First Amended Complaint, Plaintiffs
("Intel"), violated section 2 of the Sherman Act, 15

~lege that Defendant, Intel Corporation

q.s.c.

§ 2; the California Cartwright Act,

Cal. Bus. & Prof. Code § 16720; the California state ' ort law against monopolization; the
California Unfair Competition Law, Cal. Bus. & Pro . Code § 17200; various state antitrust and
restraint of trade laws; and various state consumer pr tection and unfair competition laws. (D.I.
49)
On May 11, 2006, the District Judge who wa then presiding over this matter- the

2

The docket reflects three other motions rem in pending, but this appears to be incorrect.
In January, 2009, The New York Times Company, S tuation Publishing Ltd., Dow Jones &
Company, Inc., The Washington Post, the Reporters ommittee for Freedom of the Press, and
the Computer & Communications Industry Associati n filed an Amended Motion to Modify
Protective Order and Approve Protocol for Unsealin Documents. (C.A. 05-485-LPS D.I. 1302;
C.A. 05-md-1717-LPS D.I. 1520) This motion was esolved on April29, 2009 by an Order
entered by the now-retired Judge Joseph J. Farnan, J ., to whom this case was previously
assigned. (C.A. 05-485-LPS D.I. 1499; C.A. 05-md 1717-LPS D.I. 1753) Plaintiffs' Motion for
Sanctions for Intel's Failure to Preserve Evidence (C.A. 05-485-LPS D.I. 1897; C.A. 05-md1717-LPS D.I. 2291), as well as Intel's Motion to S "ke the Declaration ofShaun M. Simmons
(C.A. 05-485-LPS D.I. 1957; C.A. 05-md-1717-LPS D.I. 2354), were both withdrawn without
prejudice, pursuant to the Stipulation and Order Reg ding Disposition of Certain Motions and
Briefing Schedule on Class Plaintiffs' Forthcoming bjections to the Special Master's July 28,
2010 Report and Recommendations, entered by the ndersigned Judge on August 17, 2010 (C.A.
05-485-LPS D.I. 2076; C.A. 05-md-1717-LPS D.I. 474). Each of these three motions will be
terminated.
2

Honorable Joseph J. Farnan, Jr., now retired -

referre~ portions of this case to Special Master

Vincent J. Poppiti (hereinafter, the "Special Master")f (D.I. 21) Between May 2006 and April,
2010, the Special Master held no fewer than six

in-c~urt hearings and issued at least seventy

orders. 3

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Pursuant to Federal Rule of Civil Procedure 53(f)(3), the Court "must decide de novo all
objections to findings of fact made or recommended y a master." Further, the Court "must
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decide de novo all objections to conclusions oflaw ~ade or recommended by a master." Fed. R.
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Civ. P. 53(f)(4). 4 "[T]he court may set aside a maste 's ruling on a procedural matter only for an
abuse of discretion." Fed. R. Civ. P. 53(f)(5). The ourt "may receive evidence." Fed. R. Civ.
P. 53(f)(l ). After reviewing the objections accordin to the applicable standard of review, and
following any additional proceedings the Court dee1s necessary, the Court "may adopt or affirm,
modify, wholly or partly reject or reverse, or resubmt to the master with instructions." Fed. R.
Civ. P. 53(f)(l).

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See, e.g., D.I. 81, 158, 234, 245, 257, 285, 3 7, 367, 396, 428, 460, 501, 538, 545, 684,
760,798,872,919,920,983,1011,1015,1046,105 '1066, 1116,1118,1129,1137,1160,
1291, 1364, 1391, 1405, 1416, 1463, 1493, 1524, 15 4, 1555, 1594, 1598, 1605, 1607, 1608,
1612, 1613, 1614, 1628, 1633, 1635, 1639, 1684, 16 4, 1699, 1701, 1714, 1749, 1872, 1880,
1908, 1942, 1947, 1984, 2040, 2041, 2042, 2061, 20 3. The undersigned Judge expresses his
sincere gratitude to Special Master Poppiti for all of he hard work he put into this matter, which
has assisted the Court tremendously in its handling o these cases.
4

Plaintiffs contend that the standard ofrevie as to all of their objections is de novo. (Tr.
at 6-7) Intel agrees that a de novo standard applies t the Court's review ofthe Special Master's
recommendations to deny class certification and toe elude Leffler's opinions under Daubert.
(D.I. 2091 at 34)
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MOTION TO C'RTIFY
Plaintiffs filed their Motion to Certify on Ma 16, 2008. (D.I. 753) Plaintiffs seek
certification of a nationwide class for injunctive relie under the Sherman Act § 2, pursuant to
Fed. R. Civ. P. 23(b)(2), and a nationwide class for

onetary relief under California law,

pursuant to Fed. R. Civ. P. 23(b)(3). (Id.)
After filing extensive briefing, the parties apprared before the Special Master in April,
2010 for a three-day evidentiary hearing. On July 28 2010, the Special Master issued an
exhaustive, 111-page Report and Recommendation r commending denial of the Motion to
Certify (and grant ofDefendant's Motion to Exclude . (D.I. 2073) ("R&R")
Plaintiffs filed objections on October 4, 2010j (D.I. 2078) The objections run to 74
pages. (Id.) Defendant answered the objections wit~ its own briefof75 pages on November 15,
20 I 0. (D .I. 2091) Plaintiffs replied, in a brief of30 t•ges, on December 10, 20 I 0. (D .1. 2097)
The Court heard oral argument on Plaintiffs' objecti ns on March 2, 2011. (See Mar. 2, 2011
hearing transcript, C.A. 05-md-1717 D.I. 2504) ("Tr. '))
The Court has now decided that additional b efing and an evidentiary hearing will be
necessary to enable to the Court to rule on the object ons to the R&R and resolve the Motion to
Certify (and Motion to Exclude). The reasons forth Court's decision are as follows:
1.

The Necessity to Make Credibility De erminations

The parties agree that a substantial motivatin factor behind the Special Master's
recommendation to deny the Motion to Certify was t e Special Master's assessment that
Plaintiffs expert, Dr. Keith Leffler, was not credibl . The Special Master's finding that Dr.
Leffler lacked credibility is prevalent throughout the R&R. As defense counsel observed at the

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hearing before this Court, "it's not just one or two ti~es that he found credibility problems. He
found it again and again and again. And you will see [it] throughout the report .... " (Tr. at 72;
see also id. at 67 (same stating: "He drew some highl specific and highly critical conclusions

about the credibility of expert testimony. . . . [H]e m de very clear specific findings about Dr.
Leffler's credibility, not just on one or two points bu again and again and again."); D.I. 2091 at
35 (citing R&R at pp. 39, 48, and 88 as examples wh re Special Master found Leffler not to be
credible))
The Court does not have a "firm conviction" 1hat the Special Master's assessment ofDr.
Leffler's credibility was wrong. 5 However, neither

i~ the Court persuaded on the paper record

before it that Dr. Leffler lacks sufficient credibility t be relied on as an adequate basis for
granting the Motion to Certify. Therefore, the Court as decided that the most appropriate course
to pursue under the circumstances is to conduct addi ·onal evidentiary proceedings, during which
the Court can observe Dr. Leffler's testimony for itse f and make its own credibility
determination. (See Fed. R. Civ. Proc. 53(f)(l); Tr. t 62-63 (Plaintiffs' counsel stating, "I think
if your Honor really did have concerns about the ere ibility issue, we could obviously bring Dr.
Leffler back to testify before your Honor, and I think that would be the best way to handle
that."))

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Intel argues for a deferential standard of revi
determinations, to which Intel would have the Court
Court has a "'definite and firm conviction that a mis
(quoting In re J.A.R. Barge Lines, LP, 2007 WL 674
also Tr. at 67) As explained above, the Court will b
observing Dr. Leffler's testimony at a forthcoming h
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w of the Special Master's credibility
ccord "due regard" and reject only if the
ke has been committed."' (D.I. 2091 at 35)
48, at *18 (W.D. Pa. Feb. 28, 2007); see
making its own credibility assessment by
aring.

2.

The Court Will Allow Dr. Leffler's Re uttal Analyses

As noted, the Court is reserving judgment on he Motion to Exclude. The Court will
decide whether to exclude Dr. Leffler's testimony aft r making its own assessment of his
credibility at the forthcoming evidentiary hearing.
The Special Master, in addition to recommen ing the exclusion ofDr. Leffler's
testimony, also prevented Dr. Leffler from presentin certain analyses Plaintiff characterized as
rebuttal analyses. Specifically, on March 27, 2010, laintiffs submitted fifteen analyses Dr.
Leffler intended to rely on to rebut arguments raised n Defendant's expert's reply. (D.I. 2078 at
6) Defendant moved to preclude these analyses. (D .. 1993) On April9, 2010, during a
teleconference, the Special Master excluded 14 of th 15 analyses as improper rebuttal, and
subsequently filed a Report & Recommendation on J ne 2, 2010, excluding the 14 of 15
analyses. (D .I. 2061) ("June 2 R&R") 6 During the t ee-day hearing, when Plaintiffs sought to
introduce rebuttal testimony from Dr. Leffler, Intel o ~ected, and the Special Master sustained the
objection, finding Leffler's analysis was "untimely a d prejudicial to Intel." (R&R at 48)
In Defendant's view, the exclusion of the reb ttal analyses was a procedural decision,
which the Court may reject only if it finds the Speci

Master committed an abuse of discretion.

(See Tr. at 105; D.I. 2091 at 35) Moreover, in Defe

ant's view, Plaintiff has lost the

opportunity to seek further review of the exclusion o the rebuttal analyses because Plaintiff did
not file objections to the June 2 R&R. (See Tr. at 11 -19)
The Court agrees with Plaintiffs that Leffler' rebuttal analyses constitute proper rebuttal.

6

Intel did not object to Leffler's general disc ssion ofthe 15th issue at the hearing. (D.I.
2091 at 23 n.24; see also id. at 70 n.54)
6

They concern the same subject matter as the opinions/ of Mr. Kaplan, the expert Plaintiffs seek to
rebut, and they are consistent with Dr. Leffler's prior opinions. Therefore, they are being offered
only to contradict or challenge Mr. Kaplan's opinion . See Fed. R. Civ. P. 26(a)(2)(C)(ii); U.S. v.

Chrzanowski, 502 F.2d 573, 576 (3d Cir. 1974).
It is not entirely clear to the Court whether tht rebuttal analyses were timely, and it is
difficult for the Court at this distance to evaluate the regree of prejudice Intel suffered from the
timing of the disclosure of these analyses. ( Compar, D .I. 2078 at 71 and D .I. 2097 at 3 0 with
D.I. 2091 at 74) Nevertheless, given that the Court ~ill be conducting additional proceedings,
Intel will have more than sufficient time to prepare fqr how it will deal with the rebuttal analyses.
To the extent Plaintiff forfeited its

opportuni~ to file objections to the June 2 R&R, the
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Court nonetheless has discretion, as part of its reviei of the objections to the Motion to
Certify/Motion to Exclude R&R, to "receive" evidete. See Fed. R. Civ. P. 53(f)(1); see also
D.I. 2078 at 12; D.I. 2097 at 29 n.24. Part of the evifence the Court wishes to evaluate as it
resolves those objections is Dr. Leffler's rebuttal ana~yses. 7 Accordingly, Dr. Leffler will be
permitted to testify consistent with his rebuttal analyfes at the forthcoming hearing on the Motion
to CertifY, and evidence of those analyses may be o,ered. 8
That the Court needs to evaluate rebuttal ana1yses which the Special Master did not allow

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Hence, the Court does not believe it must co elude (and has not concluded) that the
Special Master abused his discretion in order to exer ise its own discretion to permit the rebuttal
analyses to be part of the subject of the forthcoming earing.
8

The Court is not ruling on the Motion to Ex lude. It is possible that an ultimate
determination to grant the Motion to Exclude will c se the Court to exclude some or all of the
rebuttal analyses, but that is a decision that will be ade following the forthcoming evidentiary
hearing. At that hearing, the Court will permit Plain iffs to present Leffler's rebuttal analyses.
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to be part of the record on the Motion to Certify provides another reason for the Court's decision
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to order additional evidentiary proceedings.
3.

The Size ofThis Case is Enormous

By any measure, this is an enormous case. It nvolves 56 individual actions, consolidated
for multi-district litigation. Plaintiffs allege that betfeen $3 billion and $6 billion are at issue.
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(Tr. at 96-97; D.I. 2078 at 14 ("Intel overcharged its ustomers in excess of$4 billion.")) The
proposed nationwide class consists of millions of co sumers who made millions of computer
purchases. As defense counsel summarized at oral a gument: "you have a class that covers about
five years of transactions, ... over 200 million trans ctions, millions and millions of class
members, and they're not out there buying a commo ity, they're out there buying personal
computers ... that encompass ... almost 2,000 diffe ent Intel microprocessors." (Tr. at 76-77;

see also R&R at 52 ("The proposed class potentially !consists of millions of members .... "))
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Discovery has also been massive. Indeed, "it has been described as the largest document
discovery antitrust case in history." (Tr. at 63; see a o D.I. 2091 at 10 ("Discovery in the
consolidated cases [including Advanced Micro Devi es, Inc. v. Intel Corporation, C.A. No. 05441-JJF] yielded one of the largest records in any pri ate antitrust litigation in history. Intel
produced some 14 million e-mails - hundreds of mil ions of pages of documents in total - and its
current and former employees for over 180 depositi

days. Discovery of AMD yielded millions

more documents and over 170 days of testimony. In el, AMD, and plaintiffs also took document
and deposition discovery from dozens of third partie , including all major computer OEMs
[original equipment manufacturers], distributors, an retailers. In addition, Intel deposed 91
class representatives.")) The record before the Spec al Master on the Motion to Certify included

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over 1,300 pages ofbriefing and expert declarations. (D.I. 2091 at 24)
Given the vastness of the information the Co rt must analyze, the number of individuals
whose interests are implicated, and the amount of m ney at stake, the Court deems it appropriate
to conduct additional proceedings before making a d cision on the Motion to Certify.
4.

Plaintiffs Have Focused Their Allega ·ons

The Special Master's concerns with Dr. Leffl r's (and Plaintiffs') credibility appear to
stem, in part, from "the long, winding road of contra ictory positions taken by Class Plaintiffs
from May 2006 to April2010," before Plaintiffs cam to their final theory oftheir case. (R&R at
65; see also Tr. at 63 (Plaintiffs' counsel stating, "T ere has been, I will freely admit, an
evolution in his [Dr. Leffler's] thinking."); id. at 130 (describing "an evolution in Dr. Leffler's
opinion" as to whether all money paid by Intel to OE s as lump sums were "for loyalty" or
whether, as he later came to believe, some portion w s passed on to consumers as lawful
discounts)) Plaintiffs have now committed to a theo

-and they will be held to it. The only

payments Plaintiffs are now challenging as unlawful are the lump sum payments from Intel to
OEMs that were not used for discounting the price o computers sold to consumers. (Tr. at 55;
see also id. at 127 ("To the extent the OEMs used th lump sum payments for discounting, those

are discounts. And we're not challenging them....

o the extent the lump sum money was put

to the bottom line as a loyalty payment, that is what

e're challenging as unlawful. And that was

not passed on to consumers. No consumer benefitte from that."); D.l. 2078 at 38 ("Plaintiffs
only challenge the Intel payments that were used to s cure OEMs' loyalty .... [N]one of the
payments that Plaintiffs challenge were passed throu h to customers .... "))
Dr. Leffler will be subject to examination on ow his theory has changed and "evolved"
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over the course of this litigation. Nonetheless, the fa t that Plaintiffs are now firmly committed
to a relatively narrower theory of liability will enable the parties - and the Court - to focus on the
credibility of the testimony related to this theory.
5.

The Court May Agree with Plaintiffs t at Their
Theory Can Be Proven through Com on Evidence

Intel contends that the key issue before the C urt is the "lack of common proof of
impact," which "alone, precludes certification." (D.I 2091 at 2; see also id. at 42 n.38 ("The
failure of common proof of impact was and is the fo us of Intel's arguments, from beginning to
end.")) Intel argues forcefully that "the fundamental roblem in this case" is that Plaintiffs are
"essentially ... turning these Intel discounts into so e kind of overcharges and trying to account
for the benefits that accrued to class members." (Tr. at 71-72) The Special Master agreed with
Intel, concluding as a result that Plaintiffs could not how that purported overcharges to
consumers could be proven through common eviden e. (See, e.g., R&R at 65)
Plaintiffs respond that their theory is that "in he but for world, the same price reductions
we think would have occurred but from a lower leve . So if a customer, in fact, got a reduction in
price as a result of some discount that Intel gave to t e OEMs, we assume in the but for world
that Intel is continuing to discount to try to get busin ss and is doing it a lot more because they're
actually facing real competition from AMD instead f this entrenchment monopoly position they
have." (Tr. at 29; see also id. at 140 ("[I]t's our posi ion that but for Intel's conduct in this case,
the entire water table would have been lowered. . . . I]n the but for world, everything gets
lowered, everything."); D.I. 2078 at 8 ("The differen es between individuals and enterprise
purchasers identified by the Special Master, such as

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e existence of individualized negotiations

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(R&R at 54), are not 'meaningful' in the class

certifi~ation context because they would continue

to exist in the but-for world of greater competition. $owever, in the but for world, the price
negotiations between OEMs and their enterprise cust mers would have begun 'from a revised
lower cost basis."'); id. at 14 n.8 ("Plaintiffs' theory f consumer harm correctly stated is: Net of
all adjustment to price, Intel's microprocessor prices

ould have been lower in the but-for world

of greater competition."))
On de novo review, the Court may agree wit

But the Court needs to see the

witnesses itself before it can reach any final conclusi n.
6.

The Law Requires the Court to Unde ake a "rigorous assessment"

The Third Circuit, in In re Hydrogen Peroxi

Antitrust Litigation, 552 F.3d 305,311-12

(3d Cir. 2008), stated: "[T]he task for plaintiffs ... i to demonstrate that the element of antitrust
impact is capable of proof at trial through evidence t at is common to the class rather than
individual to its members. Deciding this issue calls

r the district court's rigorous assessment of

the available evidence and the method or methods b which plaintiffs propose to use the
evidence to prove impact at trial." More generally," roper analysis under Rule 23 requires
rigorous consideration of all the evidence and argum nts offered by the parties." !d. at 321.
"Expert opinion with respect to class certification, li e any matter relevant to a Rule 23
requirement, calls for rigorous analysis. . . . Weighi g conflicting expert testimony at the
certification stage is not only permissible; it may be i tegral to the rigorous analysis Rule 23
demands. . . . Rigorous analysis need not be hamper d by a concern for avoiding credibility
issues ...." !d. at 323-24.
The Court's ability to undertake the required 'rigorous assessment" will be aided by the
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further proceedings the Court is ordering.
7.

The Court Needs the Parties' Assista eon the Impact ofSubsequent Authorities

Yet another reason the Court has decided to c nduct additional proceedings before ruling
on the Motion to Certify is that numerous decisions r lating to the certification of class actions
have been issued in the years since the Motion to Ce ify was originally filed. More particularly,
in the time since the Court heard argument on the objections in March 2011, the Supreme Court
and the Third Circuit have handed down seemingly p

inent decisions. Indeed, subsequent to

that hearing, the parties have submitted multiple lett s, advising the Court of supplemental
authorities one or both sides believe are pertinent to

e issues pending before the Court. (See

D.I. 2505 (citing Wal-Mart Stores, Inc. v. Dukes,_

.S. _, 131 S. Ct. 2541 (2011)); D.I. 2507

(discussing Wal-Mart); D.I. 2511 (citing Behrend v.

omcast Corp., 655 F.3d 182 (3d Cir.

2011)); D.I. 2512 (discussing Behrend); D.I. 2514 (c ting Sullivan v. DB Invs., Inc., 667 F.3d 373
(3d Cir. 2011)); D.I. 2515 (citing Messner v. Norths ore Univ. HealthSystem, 669 F.3d 802 (7th
Cir. 2012)); D.I. 2516 (citing In Re K-Dur Antitrust itig., 686 F.3d 197 (3d Cir. 2012)))
Additionally, the undersigned judge has recently dec"ded several motions to certify a class. See

Yarger v. ING Bank, FSB, 2012 WL 3776012 (D. D 1. Aug. 27, 2012); O'Gara ex rei. Estate of
Portnick v. Countrywide Home Loans, Inc., 282 F.R. . 81 (D. Del. 2012).
The Court will require additional briefing fro

the parties addressing the impact, if any,

of these and other recent decisions on the issues pres nted by Plaintiffs' Motion to Certify and
Plaintiffs' objections to the R&R.

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On October 30, 2008, Defendant filed a moti n to exclude the testimony of Plaintiffs'

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expert, Dr. Keith Leffler. (D.I. 1062) In his July 28,2010 R&R, the Special Master
recommended that the Motion to Exclude be granted. (D.I. 2074)
For the same reasons given above in connecti n with the Motion to Certify, the Court has
likewise concluded that additional proceedings - incl ding an evidentiary hearing at which it can
observe Dr. Leffler's testimony for itself- are requir d before the Court will be in a position to
resolve Plaintiffs' objections to the Special Master's ecommendation to grant the Motion to
Exclude.
CONCLUS ON
The Court regrets the length oftime it has ta nit to reach today's interim decision. 9 The
Court further regrets that its determination will put t e parties to some degree of redundant effort.
Nonetheless, for the reasons stated above, the Court as determined that additional proceedings
will be required before it can resolve the objections

d rule on the Motion to Certify and the

Motion to Exclude.
Accordingly, consistent with this Memorand m Order, the Court will set a date for an
evidentiary hearing and additional briefing. Before

oceeding the Court will direct the parties to

submit their proposal(s) for precisely how and on wh t schedule the Court should proceed.

9

The class period ended on March 31, 2006. Tr. at 68) In part as a result, both sides at
the March 2011 hearing urged the Court to take the t me it deemed necessary to resolve the
issues before it. See Tr. at 34 (Plaintiffs' counsel: "I on't want to urge that the time that you
devote be any quicker than [necessary] .... [W]e w uld like to get on with it and get to the
merits of the case and get a trial date. . . . [W]e want your Honor to take the time and look at it
and come to what we believe strongly is the correct nclusion ...."); id. at 68 (Defense counsel
agreeing: "I also think you need to take the time, and I think here you have the luxury of time ....
[I]n terms of urgency, there is nothing in particular o her than the ordinary administration of
justice that would require any particular speed with r spect to your Honor's deliberations.").
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IT IS HEREBY ORDERED THAT:

1.

The parties shall meet and confer and le a joint status report, outlining their

proposal(s) for proceeding consistent with this Mem randum Order, no later than October 15,
2012.
2.

The following motions are TERMIN TED:
a.

Amended Motion to Modify P otective Order and Approve Protocol for

Unsealing Documents (C.A. 05-485-LPS D.I. 1302;
b.

.A. 05-md-1717-LPS D.I. 1520).

Plaintiffs' Motion for Sanctio s for Intel's Failure to Preserve Evidence

(C.A. 05-485-LPS D.I. 1897; C.A. 05-md-1717-LPS 2291).
c.

Intel's Motion to Strike the D claration ofShaun M. Simmons (C.A. 05-

485-LPS D.I. 1957; C.A. 05-md-1717-LPS D.I. 235 ).

Dated: September 28, 2012

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