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NEC CORPORATION’S MOTION FOR SUMMARY JUDGMENT RE INSUFFICIENCY OF THE EVIDENCE AND WITHDRAWAL
MASTER FILE NO. 3:10-MD-02143-RS, MDL NO. 2143
Robert B. Pringle (SBN: 051365)
rpringle@winston.com
Paul R. Griffin (SBN: 083541)
pgriffin@winston.com
Sean D. Meenan (SBN: 260466)
smeenan@winston.com
Jeanifer E. Parsigian (SBN: 289001)
jparsigian@winston.com
WINSTON & STRAWN LLP
101 California Street, Suite 3500
San Francisco, CA 94111-5802
Telephone: (415) 591-1000
Facsimile: (415) 591-1400
Attorneys for Defendant
NEC Corporation
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
IN RE: OPTICAL DISK DRIVE PRODUCTS
ANTITRUST LITIGATION
Master File No. 3:10-md-02143-RS
MDL No. 2143
Individual Case Nos. 3:13-cv-4991-RS; 3:13-cv-
05370-RS
NEC CORPORATION’S NOTICE OF
MOTION AND MOTION FOR SUMMARY
JUDGMENT BASED UPON
INSUFFICIENCY OF THE EVIDENCE
AND WITHDRAWAL; MEMORANDUM
OF POINTS AND AUTHORITIES IN
SUPPORT THEREOF
ORAL ARGUMENT REQUESTED
Date: September 26, 2017
Time: 9:00 a.m.
Dept: Courtroom 3, 17th Floor
Before: Honorable Richard Seeborg
This Document Relates to:
Acer America Corporation, et al., v. Lite-On IT
Corporation, et al., No. 3:13-cv-4991-RS
Hewlett-Packard Company v. Toshiba
Corporation, et al., No. 3:13-cv-05370-RS
DOCUMENT SUBMITTED UNDER SEAL
PURSUANT TO ECF NO. 84
Case 3:13-cv-04991-RS Document 85 Filed 06/30/17 Page 1 of 1
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[PROPOSED] ORDER GRANTING NEC CORPORATION’S MOTION FOR SUMMARY JUDGMENT BASED UPON INSUFFICIENCY
OF THE EVIDENCE AND WITHDRAWAL - MASTER FILE NO. 3:10-MD-02143-RS, MDL NO. 2143
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
IN RE: OPTICAL DISK DRIVE PRODUCTS
ANTITRUST LITIGATION
Master File No. 3:10-md-02143-RS
MDL No. 2143
Individual Case Nos. 3:13-cv-4991-RS; 3:13-cv-
05370-RS
[PROPOSED] ORDER GRANTING NEC
CORPORATION’S MOTION FOR
SUMMARY JUDGMENT BASED UPON
INSUFFICIENCY OF THE EVIDENCE
AND WITHDRAWAL
This Document Relates to:
Acer America Corporation, et al., v. Lite-On IT
Corporation, et al., No. 3:13-cv-4991-RS
Hewlett-Packard Company v. Toshiba
Corporation, et al., No. 3:13-cv-05370-RS
Case 3:13-cv-04991-RS Document 85-1 Filed 06/30/17 Page 1 of 3
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[PROPOSED] ORDER GRANTING NEC CORPORATION’S MOTION FOR SUMMARY JUDGMENT BASED UPON INSUFFICIENCY
OF THE EVIDENCE AND WITHDRAWAL - MASTER FILE NO. 3:10-MD-02143-RS, MDL NO. 2143
Having considered NEC Corporation’s motion for summary judgment based upon
insufficiency of the evidence and all papers filed in support of and in opposition to the motion, as
well as having entertained argument of counsel, IT IS HEREBY ORDERED that the motion is
GRANTED.
The Court finds that Plaintiffs have failed to produce any direct evidence demonstrating that
NEC participated in the alleged Optical Disk Drive (“ODD”) price-fixing conspiracy, and also, that
Plaintiffs have failed to produce any circumstantial evidence that “tends to exclude” the possibility
that NEC was operating separate and apart from the alleged ODD conspiracy in furtherance of its
own interests. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 465 U.S. 574, 588 (1986).
IT IS SO ORDERED.
Dated: _______________, 2017 By: _______________________________
HONORABLE RICHARD SEEBORG
UNITED STATES DISTRICT JUDGE
Case 3:13-cv-04991-RS Document 85-1 Filed 06/30/17 Page 2 of 3
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[PROPOSED] ORDER GRANTING NEC CORPORATION’S MOTION FOR SUMMARY JUDGMENT BASED UPON INSUFFICIENCY
OF THE EVIDENCE AND WITHDRAWAL - MASTER FILE NO. 3:10-MD-02143-RS, MDL NO. 2143
Having considered NEC Corporation’s motion for partial summary judgment on the grounds
that NEC is not subject to joint and several liability for any acts of the alleged ODD conspiracy after
December 5, 2008, when NEC exited the ODD industry and withdrew from the alleged conspiracy,
as well as all papers filed in support of and in opposition to the motion, and having entertained
argument of counsel, IT IS HEREBY ORDERED that the motion is GRANTED.
The Court finds that NEC withdrew from the alleged ODD price-fixing conspiracy as a
matter of law when it exited the ODD business completely on December 5, 2008, and reasonably
communicated that exit to its alleged co-conspirators through numerous media publications around
the world. Morton’s Market, Inc. v. Gustafson’s Dairy, Inc., 198 F.3d 823, 839 (11th Cir. 1999).
The Court also finds that NEC cannot be held liable for any damages caused by the alleged
conspiracy after it withdrew on December 5, 2008. United States v. Lothian, 976 F.2d 1257, 1262.
IT IS SO ORDERED.
Dated: _______________, 2017 By: _______________________________
HONORABLE RICHARD SEEBORG
UNITED STATES DISTRICT JUDGE
Case 3:13-cv-04991-RS Document 85-1 Filed 06/30/17 Page 3 of 3
