Tiffany (NJ) Inc. et al v. eBay Inc.

Filing 43

OPPOSITION BRIEF PLAINTIF'S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT'S MOTION IN LIMINE TO EXCLUDE THE PROPOSED EXPERT TESTIMONY OF GEORGE MANTIS. Document filed by Tiffany (NJ) Inc..(Boccanfuso, Anthony)

STATES SOUTHERN

DISTRICT

COURT YORK

DISTRICT

OF NEW

TIFFANY (NJ) INC. and TIFFANY AND
COMPANY,

Case No. 04 Civ. 4607 (KMK)
Plaintiffs,

eBAY INC.,
Defendants.

PLAINTIFFS'
MOTION

MEMORANDUM
TO EXCLUDE

OF LAW
THE GEORGE

IN OPPOSITION
PROPOSED MANTIS EXPERT

TO DEFENDANT'S
TESTIMONY OF

IN LIMINE

ARNOLD
Tiffany (NJ) Inc. et al v. eBay Inc. Doc. 43

& PORTER

LLP

Attorneys for Plaintiff
399 Park Avenue

New York, New York

10022

[phone]

Dockets.Justia.com

OF

CONTENTS

TABLE

OF AUTHORITIES

.........................................................................................................

iii

PRELIMINARY

STATEMENT

.................................................................................................... ..........................................................................,...............

I 2

COUNTERSTATEMENT

OF FACTS

Mr. Mantis'

Qualifications........................................................................................................

3

The Impartiality and Randomness of the Buying Programs.... ........., ...................................... 4
INTRODUCTION TO ARGUMENT ............................................................................................ 5

I.

MR. MANTIS IS QUALIFIED TO DESIGN THE BUYING PROGRAM AND OFFER
OPINIONS CONCERNING IT................................................................................................ 7

A.

Mr. Mantis' Thirty Years Experience In Survey Design and Statistical Sampling Qualifies Him To Testify ........., ....... ............................................................... ...........,.. 7
TESTIMONY IS RELEVANT ........................................................,............ Ii

II.

MR. MANTIS'

A.

The Mantis Report And The Buying Programs Are Relevant To And Support Tiffany's
Claim That Substantial Quantities Of"Tiffany"
Counterfeit

Silver Jewelry Available On eBay Are
11

......................................................................................................................

B.

eBay's Criticisms Affect The Weight To Be Given To The Mantis Report And The Buying Programs, Not Admissibility..............................................................................

12

i. As eBay Well Knows, The Most Significant Problem Tiffany Has With eBay Concerns The Sale Of Silver Jewelry In eBay's "Jewelry And Watches" Category ... 13 ii.
iii.

The Other Search Terms Used Are Also Appropriate .......................................... 14
Tiffany's VeRO Efforts Had To Be Suspended During The Buying Programs To
Assure Accurate Results ....................................................................................... 15

III. MR. MANTIS'

TESTIMONY

IS RELIABLE.......................................................................

16

A.

The Mantis Report And The Buying Programs Satisfy The Reliability Standard Under
Rule 702 .......................................................................................................................... 16

B.

eBay's Reliability Criticisms Affect The Weight To Be Given To The Mantis Report And The Buying Programs, Not Admissibility............................................................... 16 eBay's Reliability Criticisms Lack Factual Merit........................................................... 17

C.

36519

n

OF AUTHORITIES
Page(sl
CASES

AmericanHomeAssuranceCo. v. MastersShipsManaF2ement S.A., No. 03-CIV-0618, 2005 WL 159592(S.D.N.Y.Jan. 25, 2005).................................. 12
Bacardi & Co. Ltd. v. New York Linhter Co.,

No. 97-CV-7140,2000 WL 298915(E.D.N.Y.Mar. 15,2000)....................................5
Boucher v. U.S. Suzuki Motor Cor~.,

73 F.3d 18(2dCir. 1996).....................................,.,,~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 6, 16
Campbellex rel. Campbellv. Metropolitan Property& CasualtyInsuranceCo.,
Canino v. HRP, Inc.,

239 F.3d 179 (2d Cir. 2001).......,..., ...........................,....,~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 11

105 F. Supp. 2d 21 (N.D.N.Y. 2000) ................................................~~~~~~~~~~~~~~~~~~~~~~~~~~ 11 Daubert v. Merrell Dow Pharmaceuticals, Inc.,

509 U.S. 579 (1993)......................................~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 8, 11, 12 Drever v. RvderAutomotiveCarrierGroup,Inc.,
367 F. Supp. 2d 413 (W.D.N.Y. 2005) ................................................~~~~~~~~~~~~~~~~~~~~ g-10 EEOC v. Mornan Stanlev, 324 F. Supp. 2d 451 (S.D.N.Y. 2004),

afrd lQpart,2004WL 1542264 (S.D.N.Y. 8, 2004) July ..............:.......... 13, 16-18 12,

Ekotek Site PRP Committee v. Self, 1 F. Supp. 2d 1282 (D. Utah 1998)................................................~..~~~~~~~~~~~~~~~~~~~~~~~~~~ 12

Gonzalesv. NationalBoardof MedicalExaminers, 225 F.3d 620 (6th Cir. 2000),cert. denied,532 U.S. 1038(2001)..........................6. 12

Henryv. Champlain EnteI-~rises, 288F. Supp.2d 202(N.D.N.Y. Inc., 2003).....,.,. 12-13 Johnson& Johnson Vision Care,Inc.v. CIBAVisionCorn.,
No. 04-CIV-7369, 2006 WL 2128785(S.D.N.Y.July 28, 2006)............................8. 10

Kumho Tire Co. v. Carmichael 526 U.S. 137 (1999)....................................~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

v. American Honda Motor Co., 857 F. Supp. 222 (N.D.N.Y. 1994), afrd, sub nom., LapDe v. Honda Motor Co. Ltd. ofJapan, 101 F.3d 682 (2d Cir. 1996). ......................7 Liriano v. Hobart Cort~., 949 F. Supp. 171 (S.D.N.Y. 1996) ................................................................................5 Marmol v. Biro ManufacturincT Co., No. 93-CV-2659, 1997 WL 88854 (E.D.N.Y. Feb. 24, 1997) ....................................Z 1 McCullock v. H.B. Fuller Co., 61 F.3d 1038 (2d Cir. 1995).................................................................................

passim

Nicholls v. Tufenkian Import/Export Ventures, Inc., 367 F. Supp. 2d 514 (S.D.N.Y. 2005~..........................................................................I2 Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965 (IOth Cir. 2001) ..................................................................................... Scherina Col-~. v. Pfizer Inc., 189 F.3d 218 (2d Cir. 1999).........................................................................................

10

17

State of New York v. Solvent Chemical Co., No. 83-CV-1401C, 2006 WL 2640647 (W.D.N.Y. Sept. 14, 2006) .......................6. 12

No. 97-CIV-0593, 2000 WL 343777 (S.D.N.Y. Mar. 31, 2006)...............................8. Ulico Casualty Co. v. Clover Capital ManaRement, Inc., 217 F. Supp. 2d 311 (N.D.N.Y. 2002) ........................................................................17 United States v. Brown, 776 F.2d 397 (2d Cir. 1985), cert. denied, 475 U.S. 1141 (1986) .................................8

9

Valentin v. New York City, No. 94-CV-3911, 1997 WL 33323099 (E.D.N.Y. Sept. 9, 1997) ............................... 10 Wecshler v. Hunt Health Systems, Ltd., 381 F. Supp. 2d 135 (S.D.N.Y. 2003)..........................................................................1O
OTHER AUTHORITIES

Fed. R. Evid. 401 ...............................................................................................................1 Fed. R. Evid. 403 .................................................................................................................7

1

R. Evid. 702 Advisory Committee Notes, 2000 ......................................................5. 8
Thomas J. McCarthy,

McCarthvon Trademarksand UnfairComt,etition, ~32:165(4th ed. 2006) .........,...7
Webster's New World Dictionary of American English 1314 (Third College

Edition(1988)............................................................................·.·········--··········-·········· 14
Jack B. Weinstein, Weinstein's Federal Evidence,

~ 702.02[1] (2d ed. 2006) .........................................................~...................·················5
Jack B. Weinstein, Weinstein's Federal Evidence,

~ 702.04[11[a] (2d ed. 2006) .........................................................................-...·········-···9
Jack B. Weinstein, Weinstein's Federal Evidence,

~ 702.04111[c3 ed. 2006) .....................................................................--··-·····-··········9 (2d

STATEMENT

Ontwooccasions yearanda halfapart,Tiffanyconducted a random buyingprograms for the purchase Tiffany of silvermerchandise eBaypursuant a protocol on to designed George by Mantis,a wellknownsurveyexpert. In 2004,priorto the institution thissuit, 186itemswere of

purchased eBay.When on physically analyzed Tiffany's by quality assurance experts, 73.1% of
the itemswerecounterfeit only5%weregenuine.' In mid2005,a yearafterthe institution and of this suit,another139suchitemswererandomly purchased eBay. Seventy-five on percentof
these were counterfeit versus 12.9% which were genuine.

eBay,whichdidnotevenbotherto exercise rightto inspect purchased its the itemsin

discovery, seeks preclude now to introductiontheresults evidence thegrounds of into on that
Mr. Mantis is not an expertin statisticsand that the designof the BuyingProgramis not appropriateto justify a statisticalextrapolation the results. of

eBayprotests much. Mr.Mantis extensive too has experience the designofrelevant, in impartial studies,someof whichareprobabilistic, whichhavebeenaccepted evidence into by numerous courts.At most,eBay'scriticisms Mr.Mantis'qualifications to the weightto be of go
accorded to his testimony, not to its admissibility.

Thesameis trueof eBay'scriticisms regarding relevancy reliability the the and of BuyingPrograms.TheBuying Programs welldesigned implemented a random, were and on
unbiasedbasis. The items selectedfor biddingwere chosenon a randombasis withoutexercise

of subjectivity. results theBuying The of Programs demonstrate eBay what knows, doesnot but
wantto acknowledge it is providing supporting venuefor the saleof immense -and a quantities

I Thebalance, while genuine, advertised "similar or "like"Tiffany not were as to" goodsanddidnotbearthe
Tiffany trademark on the merchandise itself.

counterfeit Tiffany goods. The Court is entitled to, and should, consider the results of the two Programs as well as Mr. Mantis' testimony.
COUNTERSTATEMENT OF FACTS

eBay's description of"What eBay Is And How It Works" appears to be irrelevant to the
instant motion and notable more for what it leaves out than what it includes. At trial, it will be

shown that eBay actively participates in the business of its sellers and profits from their sales. It profits by taking a listing fee for each item offered and a percentage of the selling price for each
item sold. Moreover, it supports its sellers in a variety ofways, including by telling sellers in the Jewelry & Watches category, for example, that "Tiffany" is one of the most searched terms in the category. eBay also preactively screens its online marketplace for prohibited items such as drugs and firearms, but not for items described as genuine Tiffany goods. As a result, Tiffany bears the

burden of reviewing the thousands of "Tiffany" items available daily on eBay and reporting the
counterfeits to eBay through eBay's VeRO program. In describing the "Origin and Purpose ofMr. Mantis' Buying Programs," eBay alleges
that:

the gravamen of Tiffany's infringement claim lies in its contention that 'because of the limited channels of trade for genuine Tiffany merchandise, and based on Tiffany's experience in monitoring eBay's website, a seller who is offering more than a small

quantity" - i.e., five or more - "ofjewelry items that he or she claims are from Tiffany is almost certainly selling counterfeit Tiffany goods." First Amended Complaint T[33

EsiC].2
See Memorandum of Law in Support of Defendant's Motion in Limine to Exclude the Proposed Expert Testimony of George Mantis ("eBay Br.") at 2-3. However, Paragraph 34 of the First

2This statement isactuallyParagraphoftheFirst in 34 Amended Complaint.

Complaint is part of a section entitled "Plaintiffs' Protest and eBay's RefUsal to Cease Selling Counterfeit Jewelry", and Paragraph 34 itself begins with the phrase '"Tiffany has advised eBay .. .." The allegations that substantial quantities of counterfeit Tiffany merchandise are being sold on eBay with eBay's knowledge or willful blindness, more accurately describe the gravamen of the Amended Complaint. They appear at Paragraphs 18, 21-24, 40 and 42. The instant motion is designed to prevent the Court ~om learning facts critical to this . case, namely that on two separate occasions, professionally and independently designed programs to ascertain what level of counterfeit silver jewelry were sold on eBay, revealed that approximately 75% of such items were counterfeit. eBay wants the Court to cast a blind eye on such data, as eBay itself does on a daily basis. The Court should not allow eBay's quibbles with plaintiffs' expert report to divert it from the substance of the data generated by plaintiffs' two Buying Programs. Mr. Mantis' Oualifications George Mantis has over thirty years experience in survey design and implementation. Each of the hundreds of surveys he has designed has involved the integral component of statistical sampling. See Declaration of James B. Swire, dated November 20, 2006, Exhibit I

("MantisTr." at 15.)'
Since 1985, Mr. Mantis has run The Mantis Group, a survey research firm that focuses on

the administration of surveys in support of litigation. See Mantis Tr. at 11-13. From 1978 to 1985, Mr. Mantis was a vice president at Market Facts, Inc., a large marketing research firm. There, he designed and reported on the results of surveys for clients facing potential litigation.

3AsMr. Mantis testifiedthis hehas deposed one in case, been over hundred asanexpert "every times and rep(,rt
has an observation that has a statistical meaning. So in part, every report rendered in survey research involves some
aspects of statistics." Mantis Tr. at 4-6.

at 10-13. Prior to that, he conducted marketing research for Continental Illinois National Bank and Trust Company for nine years. Id. at 10. Throughout his career, Mr. Mantis has also taken courses on statistical sampling. Id. at 8-9. Mr. Mantis' expertise in the field of survey design is well known. He has spoken before the International Trademark Association, the Midwest Symposium on Intellectual Property, the Chicago Bar Association and he has even lectured on the use of surveys in Lanham Act cases at The John Marshall Law School. Id. at 15-16. Mr. Mantis has been retained as a survey research expert in approximately 300 litigations. Id. at 6-7. Not once has a court denied his expert status.
Id. at 18.

The Impartiality and Randomness of the Busing Programs The universe of"Tiffany" silver merchandise available for sale on eBay changes from

hour to'hour and day to day as auctionscommenceand end. Becauseof that, the buying surveys
are not like a confUsionstudy in which one seeks to take the measure of what percentage of consumers will be confused by a particular trademark or trade dress. In such cases, the allegedly infringing merchandise stays constant and a representative sampling of consumers is used to test the level of confusion occasioned by the allegedly infringing merchandise. In the case at bar, the Buying Programs were not designed to test confusion -- by law, a counterfeit mark creates confusion -- they were designed to attempt to impartially ascertain the percentage of"Tiffany" silver merchandise offered for sale on eBay during particular periods of time that were
counterfeit.

Mr. Mantis has not and will not opine that on any given day, approximately 75% of the "Tiffany" silver merchandise on eBay is counterfeit. He has and will opine that the buying protocols he designed resulted in a random, unbiased view of the percentage of counterfeit

silver jewelry offered for sale on eBay during the periods of time that the Buying Programs were conducted.
INTRODUCTION TO ARGUMENT

Not unexpectedly, eBay urgently wants to exclude Mr. Mantis' opinion and testimony (the "Mantis Report") and the conclusions of the Buying Programs. However, its arguments are both legally and factually unsound. Legally, eBay fails to recognize that under the Federal Rules of Evidence, expert

testimony is liberally admissible, i.e. there is a presumption ofadmissibility. Fed. R. Evid. 702
Advisory Committee Notes, 2000 Amendments ("A review of the caselaw after Daubert Tv. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)1 shows that the rejection of expert testimony is the exception rather than the rule."); Bacardi & Co. Ltd. v. New York Lighter Co., No. 97-CV-7140, 2000 WL 298915, at *2 (E.D.N.Y. Mar. 15, 2000) ("the Second Circuit has adopted a rather broad standard for the admissibility of expert witness testimony); Liriano v. Hobart Cor~., 949 F. Supp. 171, 176 (S.D.N.Y. 1996) (~u~r reinforces the idea that there

should be a presumption of admissibility of evidence."); 4 Jack B. Weinstein, Weinstein's
Federal Evidence, thereinafter, "Weinstein") ~ 702.02[1] (2d ed. 2006) ('The presumption under the Rules is that expert testimony is admissible."). Even assuming that eBay's criticisms are

valid, which they are not, the criticisms are hyper-technical and do not constitute grounds for
exclusion.

Moreover, eBay's criticisms go to the weight to be accorded to the Mantis Report and the Buying Programs, not to their admissibility. Aside from being incorrect, eBay's nit-picking criticisms are the type that are meant to be voiced through the presentation of contrary evidence and cross-examination during trial, not on a motion 111 limine to exclude expert testimony. See Boucher v. U.S. SufllkiiMotor Corp., 73 F.3d 18, 21 (2d Cir. 1996) ("Although expert testimony

be excluded if It is speculative or conjecturai, or if It is based on assumptions that are so it it unrealistic and contradictory as to suggest bad faith or to be in essence an apples and oranges comparison, other contentions that the assumptions are unfounded go to the weight, not the admissibility, oftestimony.") (internal quotations and citations omitted); McCullock v. H.B.
Fuller Co., 61 F.3d 1038, 1044 (2d Cir. 1995) ("Disputes as to the strength of [the expert's] credentials, faults in his ... methodology, or lack of textual authority for his opinion, go the weight, not the admissibility of his testimony.") (citation omitted). This is especially true in a

bench trial where the court may hear additional evidence to aid in its determination of admissibility without the risk of improperly influencing a jury. See Gonzales v. National Board of Medical Examiners, 225 F.3d 620, 635 (6th Cir. 2000) (Gillman, J. Dissenting), cert, denied,
532 U.S. 1038 (2001) (court in bench trial has substantial flexibility in admitting expert testimony and then making credibility determination during trial) (cited ~I State of New York v. Solvent Chemical Co. No. 83-CV-1401C, 2006 WL 2640647, at "2 (W.D.N.Y. Sept. 14, 2006)). Factually, eBay's criticisms of the Buying Programs are simply wrong. Mr. Mantis

designed a sound, unbiased protocol for the Buying Programs. The implementation of the Buying Programs followed these protocols. Accordingly, the Mantis Report and the results of
the Buying Programs can and should be accepted by the Court. At bottom, eBay's attack on Mr. Mantis and the Buying Programs comes down to its

assertions that Mr. Mantis is not qualified to design a pure probability survey. If eBay were correct in this regard, which it is not, it would affect only Mr. Mantis' assertions regarding the margin of error, plus or minus 6.4% for the 2004 Program and plus or minus 7.1% for the 2005

SeeMantisReportat 9-10,attached Exhibit to theeBayBrief.4 It wouldnot as A
affect the fact that the Buying Programs were designed and implemented in a random and
unbiased manner and that the results showed that a substantial proportion, 73.2% in 2004 and 75.5% in 2005, of the goods sold as genuine Tiffany silver jewelry were counterfeit.
I. MR. MANTIS
PROGRAM

IS QUALIFIED
AND OFFER

TO DESIGN

THE BUYING
IT

OPINIONS

CONCERNING

eBay' s argument that Mr. Mantis is unqualified to render expert testimony in this case is erroneous for two reasons. First, as it does throughout its motion, eBay fails to consider the presumption of admissibility of expert testimony. As with the other admissibility criteria, a proffered expert's qualifications are liberally interpreted. Second, eBay's criticisms do not bear

on the admissibility of the Mantis Report and the Buying Programs. Even if eBay's criticisms are founded, which they are not, they could affect only the weight to be given to the proffered
testimony.

A.

Mr. Mantis' Thirty Years Experience In Survey Design and Statistical Sampling: Oualifies Him To Testify

Federal Rule of Evidence 702 requires that a witness be sufficiently qualified in order to offer expert testimony. Courts in the Second Circuit have adopted a liberal and flexible interpretation of this standard. See, e.C~., Lappe v. American Honda Motor Co., 857 F. Supp. 222, 227 (N.D.N.Y. 1994), affd sub nom., Lapr>e v. Honda Motor Co. Ltd. ofJapan, 101 F.3d 682 (2d Cir. 1996) ("Liberality and flexibility in evaluating qualifications should be the rule; the

proposed expert should be not be required to satisfy an overly narrow test of his own qualifications.") (footnote omitted); see also McCullock, 61 F.3d at 1042 ("The decision to admit 4 Indeed, Mantis Mr. protocol contained manyof thefeatures pureprobability ofa sample.Sinceit hasbeen
estimated that 97% of in-person commercial surveys are non-probability studies, which nevertheless are admissible into evidence under Fed. R. Evid. 403, it is ludicrous for eBay to attempt to exclude this survey and its results. See
5 Thomas J. McCarthy, McCarthv on Trademarks and Unfair Competition, ~32:165 (4th ed. 2006).

testimony is left to the broad discretion of the trial judge and will be overturned only when manifestly erroneous.") (citations omitted); United States v. Brown, 776 F.2d 397, 400 (2d Cir. 1985) (qualiftcation requirements of Rule 702 "must be read in light of the liberalizing purpose of the Rule") (citation omitted) cert. denied, 475 U.S. 1141 (1986); Johnson & Johnson Vision Care, Inc. v. CIBA Vision Corp., No. 04-CIV-7369, 2006 WL 2128785, at "6 (S.D.N.Y. July 28, 2006); Sullivan v. Ford Motor Co., No. 97-CIV-0593, 2000 WL 343777, at ""4-5 (S.D.N.Y. Mar. 31, 2006). Accordingly, a witness may qualify to render expert testimony through any one of the five ways listed in Rule 702: knowledge, skill, experience, training, or education. Notably, the Rule is phrased in the disjunctive. eBay, however, attempts to rewrite this clearly stated rule by using the conjunctive and claiming that: "[t]o warrant admission, the proponent of expert testimony must demonstrate by a preponderance of the evidence that the witness has the necessary academic training and practical experience to support the opinion." See eBay Br. at 8

(emphasisprovided).'
eBay's proposition contravenes the clear meaning of Rule 702. The Advisory Committee Notes to the 2000 Amendments to Rule 702 reinforce the fact that one may be qualified as an expert in any one of the five ways listed in the Rule: Nothing in this amendment is intended to suggest that experience alone -- or experience in conjunction with other knowledge, skill, training or education -- may not provide a sufficient foundation for expert testimony. To the contrary, the text of Rule 702 expressly contemplates that an expert may be qualified on the basis of experience.

To support proposition, inappropriately Daubert, U.S.at 592n.10(1993), this eBay cites 509 Rule104(a) Rule and
702. See eBay Br. at 8. Footnote 10 in Daubert simply recites Rule 104(a) (i.e., the Court shall determine witness qualifications, the existence of privileges and the admissibility of evidence) and states that these matters should be
established by a preponderance
listed.

of proof. Rule 702 allows an expert to qualify through any one of the five ways

interpretation of Rule 702 also ignores well-settled case law and oft-cited commentary that reiterates the liberal qualification standard of Rule 702. See, ~g, Sullivan, 2000 WL 343777, at *"4-5 ("In a case where an expert's qualifications are challenged, the test for exclusion is a strict one, and the purported expert must have neither satisfactory knowledge, skill, experience, training nor education on the issue for which the opinion is proffered.") (emphasis provided); McCullock, 61 F.3d at 1041 (engineer with experience in design of manufacturing plants and ventilating systems qualified to testify concerning the impropriety of locating a worker within a "breathing zone" of hot glue pot even though witness lacked formal education related to fume dispersal patterns); Weinstein, ~ 702.04[11[a3(2d ed. 2006) ("[i]t is an abuse of discretion for a trial court to exclude expert testimony solely on the ground that the witness is not qualified to render the opinion at issue because the witness lacks a certain education or other experiential background.") (footnote omitted); and ~ 702.04[11[c] ("A witness can qualify as an expert on the basis of'knowledge, skill, experience, training, or education.' Thus, any one or more of these bases should be sufficient to qualify a witness as an expert.")
(footnotes omitted) (citing cases). eBay cites two cases where expert testimony was deemed inadmissible due to the

proffered expert's lack ofqualification. See eBay Br. at 8-9, n. 2. In those cases, the witnesses had no experience whatsoever with the subject matter of their proposed testimony; thus the decisions to exclude their testimony were easily made and are distinguishable from the case at bar. In Drever v. Rvder Automotive Carrier Group, Inc., the proposed expert was to testify on the design of a specific model of automobile hauler. Although the proposed expert had a doctorate in mechanical engineering, he did not have any experience, education or training in automobile hauler design or in the design of similar machinery. Consequently, the proposed

was deemed unqualified to render expert testimony. 367 F. Supp. 2d 413, 426-27

(W.D.N.Y.2005). In Ralstonv. Smith& NephewRichards,Inc., the court deemedthe proffered
expert unqualified to testify on a type of orthopedic "nailing" procedure. In ruling that her testimony would be excluded, the court stated that, even though she was an orthopedic surgeon, she had no experience with and knew "little - if anything - about" the form of"intramedullary
nailing" at issue in the case. 275 F.3d 965, 969 (10th Cir. 2001).

In contrast to the unqualified experts in Drever and Ralston, Mr. Mantis has designed impartial surveys for use in litigation and has performed statistical sampling on hundreds of projects over a thirty-year career. See Mantis Tr. at 15. This extensive practical experience qualifies Mr. Mantis to render expert testimony on the statistical sampling utilized in the Buying
Programs.

At most, eBay's criticisms bear on the weight, not admissibility, of his testimony. See McCullock, 61 F.3d at 1044 ("Disputes as to the strength of~expert's] credentials ... go to the weight, not the admissibility of testimony.") (citation omitted); Valentin v. New York City, No.
94-CV-3911, 1997 WL 33323099, at "15 (E.D.N.Y. Sept. 9, 1997) ("[A]ny challenges to an

expert's skill, knowledge or credibility go to the weight, not the admissibility of the testimony) (citation omitted) ~ in Johnson & Johnson Vision Care, Inc., 2006 WL 2128785, at *6);

Wecshler v. Hunt Health Systems, Ltd., 381 F. Supp. 2d 135, 143 (S.D.N.Y. 2003) (same

principle). eBay complainsthat Mr. Mantislacksa graduatedegreein statistics,never took
courses in statistical sampling at the university level, and specializes in consumer confUsion

surveys. See eBay Br. at 8-9. But, Mr. Mantishas taken coursesin statisticalsamplingthrough
work and various seminars, see Mantis Tr. at 8-9, and, has performed statistical sampling on

of surveys throughout his thirty-year career. In any event, the proper time for eBay to
voice these types of complaints is at trial. McCullock, 61 F.3d at 1044.
II. MR. MANTIS' TESTIMONY IS RELEVANT

eBay overreaches badly in arguing that the evidence of extensive sales of counterfeit Tiffany merchandise on eBay, both before and after institution of this action, is not relevant. Its criticisms are simply wrong. A. The Mantis Report And The Buying Programs Are Relevant To And Support Tiffany's Claim That Substantial Quantities Of LLTiffanyn Silver Jewelry Available On eBay Are Counterfeit

In its role as gatekeeper, the Court must determine whether proffered evidence has "any

tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less than it would be without the evidence." Fed. R. Evid. 401; see also
Campbell ex rel. Cam~bell v. Metropolitan Property & Casualty Insurance Co., 239 F.3d 179, 184-85 (2d Cir. 2001). As with the other admissibility criteria under Rule 702, the courts liberally interpret the relevance standard. Daubert, 509 U.S. at 587. Accordingly, "[d]oubts about the usefulness of an expert's testimony, should be resolved in favor of admissibility." Canino v. HRP, Inc., 105 F. Supp. 2d 21, 28 (N.D.N.Y. 2000) (citing Marmol v. Biro Manufacturing Co., No. 93-CV-2659, 1997 WL 88854, at *4 (E.D.N.Y. Feb. 24, 1997)).

At the heart ofTiffany's Complaint is the allegation that substantial quantities of counterfeit "Tiffany" jewelry are being sold on eBay. The fact that approximately 75% of
Tiffany silver jewelry purchased on eBay during Tiffany's 2004 and 2005 Buying Programs

certainly supports Tiffany's allegations. The Buying Programs were conducted on a random and unbiased basis. Accordingly, the Mantis Report is clearly relevant to central issues in this action.

eBay's Criticisms Affect The Weight To Be Given To The Mantis Report And The Bnving Programs, Not Admissibility

As with the attack on Mr. Mantis' credentials, eBay's relevancy complaints, even if they
are to be given any merit, go to the weight to be given to the Mantis Report and to the Buying Programs, not to their admissibility. See EEOC v. Moraan Stanle~ 324 F. Supp. 2d 451

(S.D.N.Y. 2004),aff~d part,2004WL 1542264 in (S.D.N.Y. 8, 2004).6Thisis especially July
true given that this is a bench trial, where courts presented with a motion to exclude expert

testimony may, and often do, wait for the cross-examination of the proposed expert and the presentation of contrary evidence to assist in its determination of admissibility. See Gonzales, 225 F.3d at 635 (Gillman, J. Dissenting) (district courts conducting bench trials have substantial flexibility in admitting proffered expert testimony at the front end, and then deciding for
themselves during the course of trial whether evidence deserves to be credited by meeting requirements of Kumho Tire TCo. v. Carmichael, 526 U.S. 137 (1999)1 and Daubert) (cited ~5~ Solvent Chemical Co., 2006 WL 2640647, at *2). See also Ekotek Site PRP Committee v. Self, 1 F. Supp. 2d 1282, 1296 n.5 (D. Utah 1998) (district courts presiding over bench trials can

decide questions of admissibility and reliability after proffered evidence is presented at trial)
~-Solvent Chemical Co., 2006 WL 2640647, at *2); Nicholls v. Tufenkian Import/Export

Ventures, Inc., 367 F. Supp. 2d 514, 517 n.l (S.D.N.Y. 2005); American Home Assurance Co. v. Masters Shins Management S.A., No. 03-CIV-0618, 2005 WL 159592, at *I (S.D.N.Y. Jan. 25, 2005); Henrv v. Champlain Enterprises, Inc., 288 F. Supp. 2d 202, 221 (N.D.N.Y. 2003) (expert

6There, Morgan Stanley toexclude testimony supported EEOC's ofgender moved expert that the claim
discrimination against it. Morgan Stanley claimed that the expert had created an improper population for his statistical study and it was thus "unreliable and irrelevant." d.at 457. Without commenting on the merit ofMorgan Stanley's complaints, the court admitted the expert's testimony, stating that "an evaluation of[the expert's] testimony should be left to the jury and that Morgan Stanely's criticisms should be raised on cross-examination. Id. at 458. The court also stated that "[d]isputes regarding the proper variables to employ in statistical studies are more
properly left forjuries to consider and decide." Id.

will be in contextof a bench trial "and this judge is quite confidentin his abilityto
separate the wheat from the chaff....").

As in the Mor~ian Stanlevcase, eBay's criticismof the statisticalmethodologyemployed
by Mr. Mantis in the Buying Programs does not form the proper basis for a Rule 702 motion. Such criticisms should be heard during trial through the presentation of contrary evidence and
cross-examination ofMr. Mantis, not on a motion 111 limine to exclude his testimony. In any

event, as described below, eBay's complaints regarding the population used in the Buying
Programs are unsound. i. As eBay Well Knows, The Most Significant Problem Tiffany Has With eBay Concerns The Sale Of Silver Jewelry In eBay's "Jewelrv And Watches" Category

eBay's attempts to discredit the Buying Programs in hopes of proving their irrelevancy to Tiffany's claims are without merit. eBay has long since learned in discovery that Tiffany's

principal concern thislitigation in regards saleof silverjewelry.7Suchproducts offered the are
for sale within eBay's Jewelry & Watches category; that is why "Jewelry & Watches" was part of the search criteria. Indeed, early on in discovery, Tiffany agreed to limit many of its discovery requests to eBay to jewelry items, of which silver items are by far the biggest seller.

Moreover,eBay, on its own initiative,producedsales informationlimitedto '"Tiffany"silver
jewelry items. See Tiffany Exhibit 394 at EBAY19 0120 and EBAY19 0122.

Accordingly,eBay's attack on the BuyingProgramsfor having centeredon the sale of
silver merchandise is disingenuous. The greatest amount of counterfeiting of the TIFFANY

mark currently occurs with silver merchandise and, accordingly, that is where Tiffany has

7 See Joint PretrialOrder,p. 2.

its efforts. That is where the Court, should it rule for plaintiffs, will likely focus its efforts in crafting relief. The Buying Programs are directly relevant to that category of goods.
ii. The Other Search Terms Used Are Also Appropriate

eBay complainsthat the BuyingPrograms' search termsdid not includenon-jewelry
items, gold and platinum items, or even silverjewelry that did not use "sterling". See eBay Br. at 5. As explained above, the focus of the counterfeiting problem concerns silverjewelry. For that reason, the focus of the Buying Programs was on silverjewelry. The Buying Programs are relevant for what they demonstrate regarding the sale of silver jewelry on eBay. The argument that the search terms were improperly limited to sterling silver is incorrect.

By definition, "sterling" generic a typeofsilversandthe factis thatin the Buying is for
Programs the search term "Tiffany sterling" elicited more silver items in the Buying Programs

whichdidnot include word"sterling" whichdid.g the than
Defendant argues, without supporting reference, that sellers on eBay are more likely to use "silver" than "sterling" to describe silver jewelry. See eBay Br. at 5. Even assuming

arguendothat is correct,since "sterling"definesa higherqualityof silver,one wouldexpectthat
by using "sterling", Tiffany's program would be likely to turn up a greater number of genuine goods since counterfeiters are more likely to use shoddier, lower-priced ingredients.

eBay argues,as well, that the searchterms used in the BuyingProgramsdid not includea
key indicator of counterfeit selling -- the sale of 5 or more "Tiffany" pieces. Had Tiffany included such an indicator, of course, it truly would have been doing what eBay said it should
8 Sterlingcontainsat least 92.5%silver. See WEBSTER'S WORLD NEW DICTIONARY OFAMERICAN ENGLISH
1314(Third College Edition (1988).

9 There 186 were items purchased the2004 in Buying Program. Fifty-seven purchased items contained "silver" in
the seller's listing; 38 contained "sterling" and 30 contained both "silver" and "sterling." There were 139 items

purchased the2005Buying in Program. Fiftyitems purchased contained "silver" theseller'slisting; contained in 32
"sterling" and 30 contained both "silver" and "sterling."

-- seekingoutcounterfeits ratherthanimpartially testingto seewhatpercentage of"Tiffany""
silver merchandise available on eBay was counterfeit. See eBay Br. at 5.

Thefactis thatTiffany's search terms entirely were appropriate.'" noted As above, the
use of'Tiffany sterling" notbiasedtoward was counterfeit listings.Theuse of the "Jewelry and
Watches"categorywas obviouslyappropriate-- that is wherejewelry is sold on eBay.
Moreover, the exclusion of the words:

"like, similar, setting, style, CZ, settings, amber, charm, turquoise,
vintage, navajo"

wasproper. This caseis not aboutthe saleof merchandise is "like"or "similar" Tiffany that to
merchandise. It is not about generic terms such as a Tiffany "setting" or Tiffany "turquoise" gems. It is aboutjewelry falselysold as genuineTiffanymerchandise.
iii. Tiffany's VeRO Efforts Had To Be Suspended Durinn The Buvina Programs To Assure Accurate Results

.It is true that Tiffanysuspendedits participationin eBay's VeROprogramduringthe

periodof the Buying Programs.Thiswasrequired allowallTiffany to itemsto havean equal
and independentchancefor selection. See ExhibitA to the MantisReport(the "BuyingProgram Protocol")at 1-2,whichis attachedas ExhibitA to the eBay Brief. It also preventeditems

whichwerein theprocessof beingpurchased paralegals the Buying by in Programs frombeing
removedat the last minuteby eBay becauseof a VeRO filingby Tiffany. Clearly,suspending

'O The fact that one ofTiffany's employeesused thesesearchtermsduringparticipation eBay's VeROprogram in

(i.e., order find report in to and counterfeitseBay), noway to in discredits useintheBuying their Programs. The
fact is that the terms used were impartial and appropriate to the task

filingsduringthe BuyingProgramsallowedthe resultsto constitutea true reading of the

percentage ofTiffany offeringseBay the on in particular periods were time that studied."
III. MR. MANTIS' TESTIMONYIS~I~I~B~I~~

As withits complaints aboutMr.Mantis'qualifications therelevancy his proposed and of testimony, eBay'sargument regarding reliability flawed is because: it is inconsistent the (A) with liberalinterpretation thereliability of criteria underRule702and(B)it couldonlypossibly to go the weightto be accorded MantisReportandtheBuying the Programs, to theiradmissibility. not
eBay's objectionsregardingreliabilityare also trivialand factuallyinvalid.
A. The Mantis Report And The Buying Programs

Satisfy The ReliabilitTvStandard Under Rule 702

it is well-settledthat the reliabilitystandardfor admissibility experttestimonyis a of liberal one. Courtswill excludeexperttestimonyonly "if it is speculativeor conjectural,or if it is based on assumptionsthat are so unrealisticand contradictory as to suggestbad faith or to that be in essencean apples and orangescomparison...." Boucherv. U.S. SuzukiMotor Corp., 73 F.3d 18, 21 (2d Cir. 1996)(internalcitationsand quotationsomitted). Mr. Mantis' testimonyis

far from"speculative," "conjectural," "unrealistic" an "apples oranges or and comparison," and
it certainly does not suggest bad faith. B. eBay's Reliability Criticisms Affect The Weight To Be Given To

The Mantis Report And The Buying Programs, Not Admissibility eBay complainsthat flaws in the methodology implementation the Buying and of Programsmake them unreliable. See eBay Br. at 14-16. As with eBay's other criticisms,at most, this goes to the weightof the Mr. Mantis' testimony,not to admissibility.See EEOCv.

" eBayis supplying venue, the directing buyers Tiffany to listings, actively supporting vendors taking its and a

percentage thesales of price.Under circumstances, these it should eBay's be burden, Tiffany' to police not s, eBay's
marketplace for counterfeits.

Stanley, F. Supp.26 at 457-58.SeealsoUlicoCasualty v. CloverCapital 324 Co.
Management,Inc., 217 F. Supp.2d 311, 318 (N.D.N.Y.2002)~Attacks relatingto the faults in

the expert'smethodology lackof textualauthority theopinion are improper and for all criteria for advancing motionunder702.")(citation a omitted) (citingMcCullock, F.3dat 1043-44 61
(disputeas to an expert's methodologygoes to the weight,not the admissibilityof his testimony)).'2 These criticismsshouldbe heard duringtrial not on a motionin limineto exclude Mr. Mantis' testimony. In any event, as describedbelow,eBay's complaintsregardingthe
reliability of the Mantis Report and the Buying Programs are unpersuasive. C. eBay's Reliability Criticisms Lack Factual Merit

eBay's argumentthat 1O-daylistingshad a greaterchanceof being selectedthan shorter listings,like Buy It Now listings(see eBay Br. at 15),is a quibblewithoutmerit. Indeed,
because counterfeiters do not want to risk having their auctions taken down, they want to achieve

quick sales and are more likelyto resort to one day or Buy It Now listings. Accordingly, assumingarguendothat l0-day listingshad a greaterchanceof being selected,any bias created wouldhave resultedin the BuyingProgramsshowingfewer,ratherthan greater,purchasesof
counterfeits. 13

eBay also complainsthat the resultsof the BuyingProgramsare unreliablebecausein each instance,the paralegalspurchasedless than the 200 itemscalled for by the protocol(186 in 2004 and 139 in 2005). See eBay Br. at 16. eBay ignoresMr. Mantis' depositiontestimony
'ZScherinaCorp.v. PfizerInc., 189F.3d 218, 225-28(2d Cir. 1999)also supportsthe propositionthat criticisms about methodology to weight,not admissibility.WhileeBaycites this case as authorityfor the reliabilitycriteria go of consumersurveydesignland is thus inappositebecausethe BuyingProgramsare not consumersurveys),eBay fails to note that the same opinionstates that errors in a survey's methodology "properlygo only to the weightof the
evidence ... ." Id. at 228.

L'In any event,the instructionto the paralegalswas to use Buy It Now wheneveravailable. See the Buying
Program Protocol at p. 7, attached as Exhibit A to the eBay Brief.

he statesthatthishadno significance theresultsandthateven100itemswouldhave on

producedreasonable a sample SeeMantis at 79. Thisis a classic size. Tr. example thetype of of criticism thatgoes weight, to admissibility. EEOC Mor~an to not See v. Stanlev, F. Supp. 324
2d 451.

Similarly, eBay's suggestion Mr.Mantis that should required of professional have use survey employees bidonandbuythegoods, to instead ofparalegals eBayBr.at 16),failsto (see
withstand analysis.Whiletheremaybe skillsrequired interviewers confUsion of in surveysas to howto interview respondents recordtheirresponses, suchspecialskillsare required and no here.

Theparalegals in theposition anypotential of merchandise eBay; were were of buyer on they
givenclearinstructions to whichitemsto bid for andwhatto do withthe itemsthey as

purchased. anybuyers bidders eBay, hadnofaceto faceor telephonic Like or on they interchange thesellers.Theparalegals with exercised discretion topurchase no as options and
thereis no evidence theparalegals that knewof thepurpose the Buying of Programs.Evenif theydid,theirjobwasto followa strictprotocol to purchase whattheyweretoldto and only
purchase. There is no evidencethat they varied from their instructions.

None eBay's of potpourri criticismsthebuying of of program itsexclusion. justify The
Court should listen thetestimony to concerning it wasdesigned implemented what how and and
it showed.It shouldreachits ownconclusions to whatweightit shouldbe accorded.The as
motion in limine should be denied.

Dated: New York, New York
November 20, 2005

ARNOLD

& PORTER

LLP

By: James B. Swirel~S-5996)

H. Peter Hav~es (HH-8230) Erik C. Walsh (EW-2765) Attorneys for Plaintiffs
399 Park Avenue

New York, New York 10022 [phone]