J.T. Colby & Company, Inc. et al v. Apple, Inc.

Filing 171

DECLARATION of Dr. Stephen M. Nowlis in Opposition re: 77 MOTION to Preclude the Testimony of Defendant's Rebuttal Expert Witness Stephen M. Nowlis., 73 MOTION to Preclude the Testimony of Defendant's Expert Witness E. Deborah Jay.. Document filed by Apple Inc.. (Cendali, Dale)

Dale Cendali
Claudia Ray
Bonnie L. Jarrett
KIRKLAND & ELLIS LLP
601 Lexington Avenue
New York, New York 10022

Perry J. Viscounty
LATHAM & WATKINS LLP
140 Scott Drive
Menlo Park, CA 94025
Jennifer L. Barry
LATHAM & WATKINS LLP
600 West Broadway, Suite 1800
San Diego, CA 92101-3375

Attorneys for Defendant
APPLE INC.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
J.T. COLBY & COMPANY, INC. d/b/a BRICK
TOWER PRESS, J. BOYLSTON & COMPANY,
PUBLISHERS LLC and IPICTUREBOOKS LLC,
Plaintiffs,

Case No. 11-CIV-4060 (DLC)
ECF Case

- against APPLE INC.,
Defendant.

DECLARATION OF DR. STEPHEN M. NOWLIS IN OPPOSITION TO
PLAINTIFFS’ MOTION TO EXCLUDE THE TESTIMONY,
INCLUDING AFFIDAVITS, DECLARATIONS, AND REPORTS, OF
(1) DEFENDANT’S EXPERT WITNESS E. DEBORAH JAY AND
(2) DEFENDANT’S REBUTTAL EXPERT STEPHEN M. NOWLIS

I, Stephen M. Nowlis, declare as follows:
1.

I am the August A. Busch Jr. Distinguished Professor of Marketing in the Olin

School of Business at Washington University in St. Louis. I hold a Ph.D. in Marketing and a
Master’s degree in Business Administration from the University of California at Berkeley, Haas
School of Business.
2.

I am an expert in survey design and methodology. I review surveys on a nearly

daily basis and have conducted and analyzed thousands of surveys for both litigation and nonlitigation purposes.
3.

As part of my Ph.D. studies, I took numerous advanced courses in statistical

analysis and survey design.
4.

I also taught a course in Research Methodology to Ph.D. students at Washington

State University.
5.

I am the Associate Editor for the Journal of Marketing and the Journal of

Marketing Research. In my role as Associate Editor, I routinely review surveys conducted by
others to determine whether or not the surveys have been conducted properly. In doing so, I
apply the same principles of survey methodology as are used to analyze litigation surveys.
6.

In the litigation context, I have been retained as an expert at least 50 times. Many

of those cases involved survey design.
7.

I estimate that I have conducted approximately seven to nine surveys for

litigation, about half of which were likelihood of confusion surveys.
8.

I also have prepared approximately 30 rebuttal reports, the majority of which

involved rebutting litigation surveys.

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9.

My testimony and expert reports have been relied upon by numerous courts

including the District of New Jersey, the Southern District of California, the District of
Minnesota, and the Western District of Wisconsin. In fact, as recently as December 20, 2012,
Magistrate Judge Stephen L. Crocker of the Western District of Wisconsin relied upon one of my
litigation surveys to deny class certification to the plaintiffs in Boulet v. National Presto
Industries, Inc., No. 11 Civ. 840.

I declare under penalty of perjury that the foregoing is true and correct.

Executed this 25th day of January, 2013 in St. Louis, MO.

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