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LA2:871698.2
DEFENDANTS’ OPP’N TO NY’S MOTION
FOR PARTIAL JOP OR DISCOVERY
MDL NO. 1486, CASE NO. C-06-06436 PJH
KENNETH R. O’ROURKE (S.B. #120144)
korourke@omm.com
STEVEN H. BERGMAN (S.B. #180542)
sbergman@omm.com
O’MELVENY & MYERS LLP
400 South Hope Street
Los Angeles, CA 90071-2899
Telephone: (213) 430-6000
Facsimile: (213) 430-6407
MICHAEL F. TUBACH (S.B. #145955)
mtubach@omm.com
KATHERINE M. ROBISON (S.B. #221556)
krobison@omm.com
O’MELVENY & MYERS LLP
Embarcadero Center West
275 Battery Street
San Francisco, CA 94111-3305
Telephone: (415) 984-8700
Facsimile: (415) 984-8701
Attorneys for Defendants Hynix Semiconductor
Inc. and Hynix Semiconductor America Inc.
[Additional opposing parties and their counsel
are listed on the signature page]
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
In re DYNAMIC RANDOM ACCESS
MEMORY (DRAM) ANTITRUST
LITIGATION
---------------------------------------------------
STATE OF NEW YORK,
Plaintiff,
v.
MICRON TECHNOLOGY, INC., et al.
Defendants.
MDL No. 1486
Case No. M-02-01486 PJH (JCS)
Case Nos:
C-06-06436 PJH (JCS) (N.D. Cal.)
06-CV-5309 (S.D.N.Y.)
Assigned to the Hon. Phyllis J. Hamilton
DEFENDANTS’ OPPOSITION TO NEW
YORK’S MOTION FOR PARTIAL
JUDGMENT ON THE PLEADINGS, OR
IN THE ALTERNATIVE, FOR
DISCOVERY
Date: November 19, 2008
Time: 9:00 a.m.
Place: Courtroom 3, 17th Floor
CaseM:02-cv-01486-PJH Document1923 Filed10/15/08 Page1 of 27
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TABLE OF CONTENTS
Page
LA2:871698.2 i
DEFENDANTS’ OPP’N TO NY’S MOTION
FOR PARTIAL JOP OR DISCOVERY
MDL NO. 1486, CASE NO. C-06-06436 PJH
I. INTRODUCTION.................................................................................................... 1
II. FACTUAL BACKGROUND PERTINENT TO THIS MOTION .......................... 2
A. The Pleadings ................................................................................................ 3
B. Discovery....................................................................................................... 3
1. Discovery Cut-off............................................................................... 4
2. New York’s Attempt to Obtain
Discovery After the Discovery Cut-off.............................................. 5
III. THIS COURT SHOULD DENY NEW YORK’S LATEST ATTEMPT TO
REOPEN DISCOVERY........................................................................................... 5
A. New York Has Failed to Diligently Pursue Discovery ................................. 6
1. New York Could Have Sought Discovery of Most of the
Challenged Defenses Before July 16, 2007 ....................................... 6
2. New York Was on Notice that Defendants Might Plead
Defenses Unique to New York’s Action............................................ 8
B. New York Failed to Preserve Its Rights...................................................... 10
IV. DEFENDANTS HAVE PLED THEIR DEFENSES IN CONFORMITY
WITH THE FEDERAL RULES ............................................................................ 11
A. Rule 8 Only Requires that Defenses Be Pled to Provide Plaintiff with
Fair Notice of the Defenses ......................................................................... 11
B. The Fair Notice Standard Still Applies Post-Twombly ............................... 12
C. The Defenses as Pled, Combined with the Extensive Discovery
Record, Provide New York Fair Notice of the Defenses ............................ 13
1. No pass through................................................................................ 13
2. Overcharges Were Passed on to Other Parties................................. 14
3. Actions of Third Parties Beyond a Defendant’s Control ................. 14
4. Offset ................................................................................................ 14
5. Foreign Conduct............................................................................... 15
6. Unclean Hands ................................................................................. 15
7. Waiver/Estoppel ............................................................................... 15
8. Voluntary Payments ......................................................................... 15
9. Challenging Assignments................................................................. 16
10. Prior Settlements .............................................................................. 16
11. Failure to Join Indispensable Parties................................................ 16
12. Failure to Mitigate Injuries............................................................... 17
13. Price Controlled by Plaintiff and/or Other Purchasers..................... 17
14. Comparative Fault of Plaintiff or Third Parties and
Acquiescence.................................................................................... 18
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TABLE OF CONTENTS
(continued)
Page
LA2:871698.2 - ii -
DEFENDANTS’ OPP’N TO NY’S MOTION
FOR PARTIAL JOP OR DISCOVERY
MDL NO. 1486, CASE NO. C-06-06436 PJH
15. Conflict of Interest ........................................................................... 18
16. Increased Output and Lower Prices ................................................. 18
17. Incorporation of Co-Defendant Defenses ........................................ 18
V. CONCLUSION ...................................................................................................... 19
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TABLE OF AUTHORITIES
Page
LA2:871698.2 iii
DEFENDANTS’ OPP’N TO NY’S MOTION
FOR PARTIAL JOP OR DISCOVERY
MDL NO. 1486, CASE NO. C-06-06436 PJH
CASES
Am. Greyhound Racing, Inc. v. Hull,
305 F.3d 1015 (9th Cir. 2002) ..................................................................................... 17
Bell Atlantic Corp. v. Twombly,
__ U.S. __, 127 S. Ct. 1955 (2007).................................................................. 11, 12, 13
Board of Trs. of San Diego Elec. Pension Trust v. Bigley Elec.,
Inc., No. 07-CV-634-IEG, 2007 WL 2070355 (S.D. Cal. July 12, 2007) ............. 12, 13
Claytor v. Computer Assoc. Int’l, Inc.,
211 F.R.D. 665 (D. Kan. 2003).................................................................................. 5, 9
Dupler v. Costco Wholesale Corp.,
249 F.R.D. 29 (E.D.N.Y. 2008) ................................................................................... 15
Hernandez v. Balakian,
No. 06-CV-1383, 2007 WL 1649911 (E.D. Cal. June 1, 2007) .................................. 13
In re DRAM Antitrust Litigation,
MDL No. 1486, 2006 WL 515629 (N.D. Cal. Mar. 1, 2006),
aff’d, 538 F.3d 1107 (9th Cir. 2008)............................................................................ 15
Marcin Eng’g, LLC v. Founders at Grizzly Ranch, LLC,
219 F.R.D. 516 (D. Colo. 2003) .................................................................................... 5
Mattox v. Watson,
No. 07-CV-5006-RGK, 2007 WL 4200213 (C.D. Cal. Nov. 15, 2007)...................... 12
Merrill Lynch, Pierce, Fenner & Smith Inc. v. Arcturus Builders Inc.,
159 A.D.2d 283 (N.Y. App. Div. 1990) ...................................................................... 14
Microsoft Corp. v. Worth,
No. 3:06-CV-2213-G, 2007 WL 1975574 (N.D. Tex. July 5, 2007) .......................... 13
National Enters. v. Caccia,
662 N.Y.S.2d 164 (N.Y. App. Term 1997).................................................................. 14
Simon v. Shearson Lehman Bros., Inc.,
895 F.2d 1304 (11th Cir. 1990) ................................................................................... 16
State Dept. of Health Services v. Superior Court,
31 Cal. 4th 1026 (2003) ............................................................................................... 17
Stoffels ex rel. SBC Tel. Concession Plan v. SBC Commc’n, Inc.,
No. 05-CV-0233-WWJ, 2008 WL 4391396 (W.D. Tex. 2008) .................................. 13
U.S. v. Thornburg,
82 F.3d 886 (9th Cir. 1996) ......................................................................................... 14
Voeks v. Wal-Mart Stores, Inc.,
No. 07-C-0030, 2008 WL 89434 (E.D. Wis. Jan. 7, 2008) ......................................... 12
Woodfield v. Bowman,
193 F.3d 354 (5th Cir. 1999) ....................................................................................... 12
Wyshak v. City Nat’l Bank,
607 F.2d 824 (9th Cir. 1979) ....................................................................................... 12
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TABLE OF AUTHORITIES
(continued)
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LA2:871698.2 - iv -
DEFENDANTS’ OPP’N TO NY’S MOTION
FOR PARTIAL JOP OR DISCOVERY
MDL NO. 1486, CASE NO. C-06-06436 PJH
STATUTES
N.Y. Bus. Law § 340(6) .................................................................................................... 13
RULES
Fed. R. Civ. P. 12(c) ............................................................................................................ 2
Fed. R. Civ. P. 16(b)(4) ....................................................................................................... 5
Fed. R. Civ. P. 19(a)(1)(A)................................................................................................ 17
Fed. R. Civ. P. 19(a)(1)(B) ................................................................................................ 17
Fed. R. Civ. P. 8................................................................................................................. 11
Fed. R. Civ. P. 8(b).............................................................................................................. 2
Civil L.R. 7-2(b)(3) ........................................................................................................... 11
Civil L.R. 7-4(a) ................................................................................................................ 11
OTHER AUTHORITIES
Thomas H. Palmer, TEACHER’S MANUAL (1840) ............................................................... 1
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LA2:871698.2 - 1 -
DEFENDANTS’ OPP’N TO NY’S MOTION
FOR PARTIAL JOP OR DISCOVERY
MDL NO. 1486, CASE NO. C-06-06436 PJH
OPPOSITION MEMORANDUM OF POINTS & AUTHORITIES
Defendants Hynix Semiconductor Inc., Hynix Semiconductor America Inc.
(collectively “Hynix”), Micron Technology, Inc., Micron Semiconductor Products, Inc.
(collectively “Micron”), Infineon Technologies AG, Infineon Technologies North
America Corp. (collectively “Infineon”), Elpida Memory, Inc., Elpida Memory (USA),
Inc. (collectively “Elpida”), Mosel Vitelic Corporation, Mosel Vitelic Incorporated
(collectively “Mosel”), Nanya Technology Corporation, Nanya Technology Corporation
USA (collectively “Nanya”), and NEC Electronics America, Inc. (“NEC”) (“Defendants”)
respectfully submit this memorandum of points and authorities and the accompanying
Declaration of Steven H. Bergman in Opposition to New York’s Motion for Partial
Judgment on the Pleadings, or in the Alternative, for Discovery (“Bergman Decl.”).
I. INTRODUCTION
“If at first you don’t succeed, try, try again.”
Thomas H. Palmer, TEACHER’S MANUAL (1840).
Having failed three times already, the State of New York is now back for the
fourth time asking the Court to extend discovery beyond the July 16, 2007 discovery cut-
off. For this try, New York has cloaked its attempt to reopen discovery as a Motion for
Partial Judgment on the Pleadings that purports to attack various defenses alleged by
Defendants. New York claims that discovery is necessary so it is not “blind-side[d]” by
“newly asserted” defenses. (See NY JOP Motion (Docket No. 173-2) at 1, 2.) But, a
party cannot be blind-sided by that which it chooses not to see.
New York’s motion is premised on the fallacy that the first time it saw all of
Defendants’ defenses, including the 88 apparently being challenged here, was when
Defendants answered the Amended Complaint on May 13, 2008. Yet, Defendants
asserted almost all of these same defenses years earlier in the MDL litigation, long before
New York’s discovery cut-off on similar claims. That a few “new” defenses were raised
concerning New York’s assignment claim was no surprise when Defendants repeatedly
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DEFENDANTS’ OPP’N TO NY’S MOTION
FOR PARTIAL JOP OR DISCOVERY
MDL NO. 1486, CASE NO. C-06-06436 PJH
questioned the assignment claim in their own discovery. This Court should not be misled
by New York’s latest device and should, again, deny New York’s motion outright.
Even if New York’s motion was not simply another attempt to reopen
discovery, the motion fails as a Motion for Partial Judgment on the Pleadings. New York
does not claim, as is required to prevail on a Rule1 12(c) motion, that assuming the truth
of the allegations, the purportedly challenged defenses fail as a matter of law. Nor can it,
as each of the challenged defenses is valid as a matter of law. Instead, New York claims
that each of the challenged defenses fails to plead sufficient facts to put New York on
notice of the nature of the defense in accordance with Rule 8(b). Even here, however,
New York’s motion fails, as the defenses are pled in conformity with established pleading
practices and, given the extensive and voluminous discovery record developed over the
course of the six (6) years that this MDL has been pending, are sufficient to put New York
on notice of the nature of the alleged defenses.
II. FACTUAL BACKGROUND PERTINENT TO THIS MOTION
The State of New York’s action, which was filed on July 13, 2006, is one of
dozens of cases that have been coordinated for pre-trial purposes as part of In re DRAM
Antitrust Litigation, MDL No. 1486. New York itself began investigating the DRAM
market in anticipation of this lawsuit long before filing its original Complaint, issuing
Subpoenas Duces Tecum to the Defendants in November 2005. (See, e.g., Bergman Decl.
¶ 2 & Ex. A.) After New York filed suit in the Southern District of New York on July 13,
2006, the case was referred to the Judicial Panel on Multidistrict Litigation and transferred
to this Court to be coordinated with other cases pending in MDL No. 1486. (See Docket
No. 1.)2
A. The Pleadings
New York’s original Complaint alleged claims under the Sherman Act (15
U.S.C. § 1 et seq.), the Donnelly Act (N.Y. Gen. Bus. Law § 340 et seq.), New York
1 As used herein, “Rule” refers to a Federal Rule of Civil Procedure.
2 Unless otherwise indicated, Docket references are to the Docket for this action,
Case No. C-06-06436 PJH.
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LA2:871698.2 - 3 -
DEFENDANTS’ OPP’N TO NY’S MOTION
FOR PARTIAL JOP OR DISCOVERY
MDL NO. 1486, CASE NO. C-06-06436 PJH
Executive Law § 63(1), and California’s Cartwright Act (Cal. Bus. & Prof. Code § 16720
et seq.). New York sought recovery both as a direct purchaser (directly and by
assignment) and as an indirect purchaser. Defendants responded with a Motion to
Dismiss that, among other things, challenged New York’s claims under the Sherman Act
to the extent New York was not a direct purchaser. (See Docket No. 3.) In its opposition,
New York pointed to the assignment allegations made in the Complaint and claimed
standing as a direct purchaser by assignment. (See Docket No. 13.) Defendants’ Motion
to Dismiss was granted in part and denied in part in an August 31, 2007 Order and New
York was granted leave to file an Amended Complaint. (See Docket No. 72.)
New York filed its Amended Complaint on October 1, 2007. (See Docket
No. 84.) Defendants again moved to dismiss, and, among other things, challenged the
validity of New York’s assignment claims. (See Docket No. 102.) At the hearing on the
Defendants’ Motion to Dismiss, the Court expressed frustration with New York’s
amended theory of relief under the assignment claims and re-opened discovery for
Defendants limited to this new theory. (See, e.g., Feb. 27, 2008 Civil Minutes (Bergman
Decl., Ex. L; Docket No. 125).) The Court subsequently denied Defendants’ Motion to
Dismiss on April 15, 2008. (See Docket No. 138.) Each defendant filed an answer to the
Amended Complaint on May 13, 2008. (See Docket Nos. 144-151.)
B. Discovery
Although discovery did not formally begin in this action until New York
filed its Complaint in July 2006, in reality, it began years earlier. First, New York
received all of the discovery taken from 2002 to the present in the MDL. (See Bergman
Decl. ¶ 4.) Second, New York issued a Subpoena Duces Tecum to each defendant back in
November 2005. (See, e.g., Bergman Decl. ¶ 2 & Ex. A.)
After filing its Complaint in July 2006, New York waited six months to
propound discovery. Even though Defendants propounded discovery regarding the
assignment claims, New York never did. Defendants propounded document requests
addressing, among other things, New York’s assignment claims on March 7, 2007. (See
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LA2:871698.2 - 4 -
DEFENDANTS’ OPP’N TO NY’S MOTION
FOR PARTIAL JOP OR DISCOVERY
MDL NO. 1486, CASE NO. C-06-06436 PJH
Bergman Decl., Ex. B.) Similarly, Micron and Hynix propounded interrogatories
regarding New York’s assignment claim on March 7, 2007 and April 23, 2007,
respectively. (See Bergman Decl., Exs. C & E.) Finally, on or about June 29, 2007,
Hynix served a 30(b)(6) deposition notice on New York seeking, among other things, a
person most knowledgeable regarding New York’s assignment claim. (See Bergman
Decl., Ex. F.)
1. Discovery Cut-off
The Court initially set a discovery cut-off of June 1, 2007. At the request of
New York and the plaintiffs in State of California v. Infineon Technologies, AG, et al.,
Case No. 06-4333 PJH (N.D. Cal.), this Court extended the discovery cut-off 45 days to
July 16, 2007. (See Mar. 22, 2007 Civil Minutes (Docket No. 27).) The July 16, 2007
discovery cut-off was confirmed in the Court’s April 17, 2007 Case Management Order.
(See Bergman Decl., Ex. D; Docket No. 32.)
On July 16, 2007, the State of New York made a motion to further extend
the discovery cut-off by three months, and Defendants moved to enforce the discovery
cut-off. (See Docket Nos. 54 & 58.) At the July 26, 2007 hearing, the Court stated
repeatedly that it would not extend the discovery cut-off. (See July 26, 2007 Hearing Tr.
36:3-4; 37:5-10; 46:8; & 46:15 (Bergman Dec., Ex. J).) Following the July 26, 2007
hearing, this Court entered an Order denying New York’s motion and refusing to extend
the July 16, 2007 discovery cut-off. (See July 26, 2007 Civil Minutes (Bergman Decl.,
Ex. H; Docket No. 64); July 26, 2007 Order ¶ 2 (Bergman Decl., Ex. I; Docket No. 65).)
The Court also set an August 24, 2007 deadline for motions to compel in this action. (See
July 26, 2007 Order ¶ 3 (Bergman Decl., Ex. I; Docket No. 65).)
2. New York’s Attempt to Obtain
Discovery After the Discovery Cut-off
Undeterred by this Court’s July 26, 2007 Order, prior to filing this motion
New York has not once, but twice, sought additional discovery from Defendants beyond
August 24, 2007. New York first moved to compel production of documents and
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DEFENDANTS’ OPP’N TO NY’S MOTION
FOR PARTIAL JOP OR DISCOVERY
MDL NO. 1486, CASE NO. C-06-06436 PJH
deposition testimony from Hynix in January of this year. Magistrate Judge Spero denied
that motion, finding that New York had not pursued the discovery it sought with sufficient
diligence. (See Feb. 11, 2008 Order (Bergman Decl., Ex. K; Docket No. 119).)
One month later, Magistrate Judge Spero denied New York’s motion to
compel against the Infineon defendants, finding the motion was untimely. (See Mar. 11,
2008 Order (Bergman Decl., Ex. M; Docket No. 130).)
III. THIS COURT SHOULD DENY NEW YORK’S
LATEST ATTEMPT TO REOPEN DISCOVERY
This motion is New York’s fourth attempt to reopen discovery in the
fourteen months that have passed since the July 16, 2007 discovery cut-off. However, a
motion to re-open discovery should be brought pursuant to Rule 16(b)(4). (See, e.g., July
26, 2007 Hearing Tr. 5:11-16; 36:18-37:10 (Bergman Dec., Ex. J).) Yet, New York
makes no reference to Rule 16 in its papers, likely because it recognizes that it cannot
meet the “good cause” standard for reopening discovery under Rule 16(b)(4).
Good cause “requires a showing, among other things, that the party seeking
the extension was diligent in its discovery efforts yet could not complete discovery by the
court-ordered deadline.” Marcin Eng’g, LLC v. Founders at Grizzly Ranch, LLC, 219
F.R.D. 516, 521 (D. Colo. 2003); see also Claytor v. Computer Assoc. Int’l, Inc., 211
F.R.D. 665, 666 (D. Kan. 2003) (finding no good cause where plaintiff failed to explain
why, in exercising due diligence, the proposed discovery could not have been completed
by the discovery deadline). Because New York has not diligently pursued discovery it
lacks “good cause” to reopen discovery. Therefore, the Court should deny this motion.
A. New York Has Failed to Diligently Pursue Discovery
Given the facts available in the record before the discovery cut-off, New
York could have anticipated and timely propounded the discovery it now seeks. Inaction
is not diligence. In fact, this Court has previously observed that New York did not
diligently pursue discovery. (See July 26, 2007 Hearing Tr. 42:11 (referring to New
York’s first attempt to re-open discovery and stating “no diligence has been shown”)
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MDL NO. 1486, CASE NO. C-06-06436 PJH
(Bergman Decl., Ex. J).) Similarly, Judge Spero has already denied two motions to
compel discovery by New York in part because New York could not demonstrate that it
had diligently sought the discovery at issue. (See Feb. 11, 2008 Order & Mar. 11, 2008
Order (Bergman Decl., Exs. K & M).) The same is true with this motion. As described in
detail below, given the facts in the record of this case and the MDL action, New York did
not diligently pursue discovery on issues it had notice of in advance of the July 16, 2007
discovery cut-off. This lack of diligence is fatal to New York’s motion.
1. New York Could Have Sought Discovery of Most of the
Challenged Defenses Before July 16, 2007
As noted above, this action has been coordinated with dozens of other cases
as part of MDL No. 1486. The majority of those cases, like the New York case, include
indirect purchaser claims. And all of the cases in this MDL base their claims on the same
alleged DRAM price-fixing claims. Thus, there are similar allegations across all of the
cases in MDL No. 1486, including New York’s action. Indeed, in addition to similar
allegations, the parties are also the same, and some cases also alleged claims under New
York law.
These similarities are relevant here. While New York calls them “newly
asserted affirmative defenses,” a majority of these defenses were asserted in October 2005
in the indirect purchaser action in the DRAM MDL – Petro Computer Systems, Inc. v.
Micron, et al., Case No. M:02-cv-01486 (N.D. Cal.). The overlap between the defenses
Defendants pled here and in Petro Computer is as follows:3
3 Exhibit N to the Bergman Declaration provides a side-by-side comparison of the
language of the challenged defenses and the Petro Computer defenses.
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MDL NO. 1486, CASE NO. C-06-06436 PJH
Defendant4
Number of Defenses
Challenged in this Motion
Number of those
Challenged Defenses also
contained in Petro
Computer Answer
Micron 4 3
Infineon 16 13
Hynix 12 10
Mosel Vitelic 13 13
Elpida 14 13
Nanya Tech 4 3
Nanya Tech USA 4 3
NEC 21 20
Totals: 88 78
As this chart shows, 78 of the 88 defenses challenged here were previously
asserted in Petro Computer. Each defendant to this action filed answers in Petro
Computer in October 2005. Not only is that before the discovery cut-off in this action, but
it is before New York filed its Complaint. New York not only had access to the defenses
raised in Petro Computer long before it filed its Complaint but, given the similarity
between the two cases, should have anticipated that these same defenses would be raised
by Defendants here. Thus, with reasonable diligence New York could have propounded
discovery on a majority of the defenses that it calls “newly asserted” long before the July
16, 2007 discovery cut-off. Its failure to do so precludes New York from obtaining relief
in the form of further discovery.5
4 This chart divides the defendants as New York does in Richard L. Schwartz’s
declaration. (Docket No. 173-2, at 2.)
5 If New York had propounded discovery towards these “anticipated” defenses, one
or more Defendants could have objected under the work-product doctrine. However, if
that had occurred, New York would have preserved its right to the discovery when said
Defendant or Defendants did answer.
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DEFENDANTS’ OPP’N TO NY’S MOTION
FOR PARTIAL JOP OR DISCOVERY
MDL NO. 1486, CASE NO. C-06-06436 PJH
2. New York Was on Notice that Defendants Might Plead Defenses
Unique to New York’s Action
There are certain defenses that are unique to New York’s case, and thus
would not have been pled in the Petro Computer case. These defenses relate to New
York’s assignment claim and defenses alleging prior settlement of assigned claims.6 But
even with these defenses, New York’s lack of diligence precludes re-opening discovery.
a. New York Was on Notice that Defendants Would
Challenge New York’s Assignment Claim
New York cannot legitimately claim that it did not have notice that
Defendants would challenge New York’s assignment claim in advance of the discovery
cut-off. As discussed above, New York put assignment issues in play in opposition to
Defendants’ first Motion to Dismiss which was filed long before the July 16, 2007
discovery cut-off.
Similarly, the discovery Defendants propounded before the July 16, 2007
discovery cut-off was sufficient to put New York on notice that Defendants intended to
challenge the validity of New York’s assignment claims. First, on March 7, 2007,
Micron, on behalf of all Defendants, propounded requests for production which sought
documents in New York’s possession, custody or control from “ASSIGNING ENTITIES”
and about New York’s assignment claims. (See Bergman Decl., Ex. B.) On the same day,
Micron propounded interrogatories on New York that also sought information related to
“ASSIGNING ENTITIES.” (See Bergman Decl., Ex. C.)
Second, Hynix’s Interrogatory No. 9, which was propounded on April 23,
2007, specifically sought information regarding New York’s assignment claim. (See
Bergman Decl., Ex. E.)
6 Of the 10 defenses not also asserted by the Defendants in Petro Computer, only
two do not concern the assignment and prior settlement. Infineon added a pass-through
and FTAIA defense in its New York answer. However, New York cannot claim that it did
not have notice of these two defenses because both of them were asserted by at least one
of the Defendants in Petro Computer.
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MDL NO. 1486, CASE NO. C-06-06436 PJH
Finally, on June 29, 2007, Hynix served a Rule 30(b)(6) deposition notice
on New York requesting testimony in 15 categories – 10 of which concerned New York’s
assignment claim. (See Bergman Decl., Ex. F.)
Given this discovery, New York was on notice that Defendants might
challenge the validity of New York’s assignment claim. But even with the receipt of this
assignment-related discovery, New York did not seek discovery regarding Defendants
potential defenses to the assignment allegations. If New York were being diligent in its
discovery efforts, it would have propounded discovery on the assignment issue at least at
one of these points, all of which occurred before the discovery cut-off. The fact that New
York did not, shows that there is no good cause for its current request to reopen discovery.
Claytor, 211 F.R.D. at 666 (finding no good cause where plaintiff failed to explain why,
in exercising due diligence, the proposed discovery could not have been completed by the
discovery deadline).
b. The MDL Record Provided Enough Notice that
Defendants Might Allege that Prior Settlements Preclude
New York’s Claims
New York also challenges the defense that its assignment claim is barred, in
whole or in part, because of prior settlements between Defendants and one or more
assignees. Like the other defenses challenging the assignment clause, this was not pled in
Petro Computer. But, if New York had acted diligently, it could have anticipated such a
defense.
Before New York filed its Complaint in July 2006, several of the defendants
herein had settled with the Direct Purchaser plaintiffs. For example, Infineon settled in
September 2005, Samsung in February 2006, and Hynix in April 2006. Each of the
settlement agreements were made public when the Direct Purchaser plaintiffs sought
approval of the settlements. (See MDL Docket No. 773 (Infineon (Ex. A) & Samsung
(Ex. B) Settlements), MDL Docket No. 829-2 (Hynix Settlement).)
Paragraph 16 of the Hynix settlement agreement stated that Hynix had
previously settled claims with direct purchasers representing more than $1.75 billion of
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MDL NO. 1486, CASE NO. C-06-06436 PJH
Hynix’s sales during the April 1999 to June 2002 class period. (MDL Docket No. 829-2,
¶ 16 (Hynix Settlement).) During discovery, New York received Hynix’s sales data, and
even a cursory review would show that Hynix had settled more than 2/3 of its sales before
settling with the Direct Purchaser plaintiffs. Although the names of these earlier, settling
direct purchasers remained confidential, in October 2006 most of these entities, including
several major OEMs, opted-out of the class settlement. With these facts, New York had,
at minimum, constructive notice of the potential that several of its alleged assignees had
already settled with Defendants. New York could have at least sought discovery
regarding these settlements and how they may affect its claims. But instead New York
chose to forgo its opportunity for such discovery. This absence of diligence means New
York lacks “good cause” to reopen discovery as to prior settlements.
B. New York Failed to Preserve Its Rights
As discussed above, on July 16, 2007, New York moved to extend the
discovery cut-off. A hearing on this motion, and Defendants’ motion to enforce the
July 16, 2007 discovery cut-off, was held on July 26, 2007. New York was present at the
hearing and argued at the hearing. (See July 26, 2007 Civil Minutes (Bergman Decl., Ex.
H); July 26, 2007 Hearing Tr. (Bergman Decl., Ex. J).) And, at that time, Defendants’
initial Motion to Dismiss was pending and no Defendant had answered New York’s
Complaint. Yet, New York never mentioned that it may need discovery regarding any
“newly asserted” defenses contained in the answers Defendants would later file.
Tellingly, New York did argue that it merely sought discovery “specific to
its own allegations.” (See July 16, 2007 Schwartz Decl. ¶ 2 (emphasis added) (Bergman
Decl., Ex. G).) If New York recognized that discovery “specific to its own allegations”
was appropriate, surely it should have recognized that Defendants would assert defenses
specific to such allegations. Given this record, New York should have at least attempted
to preserve its right to seek discovery regarding still-to-be-pled defenses. It did not. This
is further grounds to deny New York’s (fourth) attempt to reopen discovery.
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DEFENDANTS’ OPP’N TO NY’S MOTION
FOR PARTIAL JOP OR DISCOVERY
MDL NO. 1486, CASE NO. C-06-06436 PJH
IV. DEFENDANTS HAVE PLED THEIR DEFENSES IN CONFORMITY WITH
THE FEDERAL RULES
New York’s motion is not a traditional motion for judgment on the
pleadings because New York does not claim that, if the facts alleged or implied are true,
the defenses fail as a matter of law. Instead, New York only argues that Defendants have
not pled sufficient facts in support of the 88 defenses it apparently challenges.7 Therefore,
if the Court grants the motion as to any defendant’s defense, the proper remedy would not
be to dismiss the defense, but to allow the defendant to amend its answer.8 Defendants
request that if the Court grants any part of this motion, it order the proper remedy of
amendment. In any event, given the pleadings and discovery in both this case and the
MDL action (which New York is a part of), Defendants’ defenses – as written – provide
New York with fair notice, which is all that is required under Rule 8 and Bell Atlantic
Corp. v. Twombly, __ U.S. __, 127 S. Ct. 1955 (2007).
A. Rule 8 Only Requires that Defenses Be Pled to Provide Plaintiff with
Fair Notice of the Defenses
While New York tries to hold Defendants to a higher pleading standard,
Rule 8 only requires that Defendants state their defenses in “short and plain terms.” As
the language of Rule 8 shows, Defendants are not required to state every fact supporting
each of their defenses. In fact, courts have consistently applied a “fair notice” pleading
requirement to defenses. See Woodfield v. Bowman, 193 F.3d 354, 362 (5th Cir. 1999);
Wyshak v. City Nat’l Bank, 607 F.2d 824, 827 (9th Cir. 1979). Under this standard, a
7 New York’s memorandum of points and authorities leaves much to be desired, as
New York does not comply with Civil L.R. 7-4(a). Although allegedly moving against 88
defenses, New York only discusses seventeen (17) defenses by way of example in its
papers. New York does not indicate if those 17 examples are representative of all 88
defenses allegedly at issue and, if so, which arguments apply to which defenses.
8 As a motion for judgment on the pleadings, New York’s motion violates Civil L.R.
7-2(b)(3), by failing to provide a “concise statement of what relief or Court action” it
seeks. While New York states that it wants judgment on the pleadings on “certain of
Defendants’ affirmative defenses,” New York does not actually identify a single defense
in the Notice of Motion. Instead, it refers the Court to the Declaration of Richard
Schwartz that was filed concurrently with the motion. In that declaration, buried on page
73 (out of nearly 300 pages), New York identifies by number the 88 different defenses
that it claims are at issue in the motion. Requiring the Court and Defendants to scour New
York’s papers to know what is at issue is not a “concise statement” of the desired relief or
Court action.
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FOR PARTIAL JOP OR DISCOVERY
MDL NO. 1486, CASE NO. C-06-06436 PJH
defendant “must plead an defense with enough specificity or factual particularity to give
the plaintiff ‘fair notice’ of the defense that is being advanced.” Woodfield, 193 F.3d at
362 (emphasis added). The purpose of the rule is to avoid unfair surprise to the plaintiff;
therefore, the level of specificity that is “enough” will depend on the defense asserted and
the circumstances of the case. Id.; Voeks v. Wal-Mart Stores, Inc., No. 07-C-0030, 2008
WL 89434, *6 (E.D. Wis. Jan. 7, 2008).
B. The Fair Notice Standard Still Applies Post-Twombly
The Twombly decision has not changed the “fair notice” pleading standard
for defenses. In the recent case of Voeks v. Wal-Mart Stores, Inc., the parties disagreed
regarding whether the “Twombly standard” or the “‘fair notice’ standard” (from
Woodfield) applied to defenses. 2008 WL 89434 at *6. The court found that, despite the
parties’ arguments to the contrary, the pleading requirements under these two standards
are not materially different. Id. Rather, under both standards “specific facts are not
necessary; the statement need only give the defendant fair notice of what the . . . claim is
and the grounds upon which it rests.” Id. (emphasis added). In fact, even after Twombly,
many courts continue to apply the “fair notice” standard to defenses. See, e.g., Board of
Trs. of San Diego Elec. Pension Trust v. Bigley Elec., Inc., No. 07-CV-634-IEG, 2007
WL 2070355, *2 (S.D. Cal. July 12, 2007) (applying “fair notice” standard to motion to
strike defenses); Mattox v. Watson, No. 07-CV-5006-RGK, 2007 WL 4200213, *1 (C.D.
Cal. Nov. 15, 2007) (same).
Of course, “[t]he degree of factual specificity required, if any, to provide the
plaintiff with fair notice of the defense depends on the specific case and the specific
defense being pled.” Voeks, 2008 WL 89434 at *6 (emphasis added). Some defenses are
so self-explanatory, that just pleading the name of the defense is sufficient to give the
plaintiff “fair notice.” Woodfield, 193 F.3d at 362; see also Voeks, 2008 WL 89434 at *6
(holding the defenses of statute of limitations, mistake, no damages, speculative damages,
no sufficient intent, and standing were “largely self-explanatory” and thus “sufficiently
pled to give the plaintiff fair notice”). This remains true after Twombly. See Microsoft
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MDL NO. 1486, CASE NO. C-06-06436 PJH
Corp. v. Worth, No. 3:06-CV-2213-G, 2007 WL 1975574, *1 (N.D. Tex. July 5, 2007)
(“In some instances the mere naming of the defense will suffice.”). For example, an
defense that merely states “plaintiff failed to mitigate damages” is sufficient. See Board
of Trs. of San Diego Elec. Pension Trust, 2007 WL 2070355 at *3; Hernandez v.
Balakian, No. 06-CV-1383, 2007 WL 1649911, *6-8 (E.D. Cal. June 1, 2007). The
statute of limitations is a similarly obvious and self-explanatory defense. Stoffels ex rel.
SBC Tel. Concession Plan v. SBC Commc’n, Inc., No. 05-CV-0233-WWJ, 2008 WL
4391396, *2 (W.D. Tex. 2008) (“Although Defendant’s pleading is not a model of clarity,
the [limitations] defense is largely self-explanatory and is sufficient to give plaintiffs fair
notice of the defense being asserted.”). As discussed below, given the record in this case
and the MDL action together with the language of Defendants’ defenses, New York has
fair notice of the defenses at issue.
C. The Defenses as Pled, Combined with the Extensive Discovery Record,
Provide New York Fair Notice of the Defenses
1. No Pass Through9
The Donnelly Act only allows recovery on behalf of persons who have
sustained damages, and an indirect purchaser only sustains damages if the product
overcharge, if any, was passed on to him. N.Y. Bus. Law § 340(6).10 Here discovery has
revealed that at least some direct purchasers (including Compaq and Viking) did not pass-
on all overcharges. (See, e.g., February 20, 2008 Expert Report of Margaret Guerin-
Culvert in Opposition to Class Certification filed in State of California v. Infineon
Technologies, AG, et al., Case No. C-06-04333 ¶¶ 48, 51, 63, 71 (Cal. Docket No. 332-
2).) As such, there is sufficient evidence in the record that, combined with the defense of
no pass through, provides New York sufficient notice.
9 This defense is asserted by the following Defendants: Hynix (13th defense), Nanya
(12th defense), Micron (12th defense), Infineon (33rd defense), Elpida (19th defense), Mosel
(24th defense), and NEC (29th defense).
10 A plaintiff must show that it has suffered antitrust impact. For an indirect
purchaser alleging price-fixing, that can only occur if the direct purchaser passed through
all or part of the alleged overcharge.
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DEFENDANTS’ OPP’N TO NY’S MOTION
FOR PARTIAL JOP OR DISCOVERY
MDL NO. 1486, CASE NO. C-06-06436 PJH
2. Overcharges Were Passed on to Other Parties11
As an alleged assignee, New York purportedly “stands in the shoes of the
assignor” and is subject to any and all defenses that Defendants could assert against the
assignors. See U.S. v. Thornburg, 82 F.3d 886, 890 (9th Cir. 1996); National Enters. v.
Caccia, 662 N.Y.S.2d 164, 165 (N.Y. App. Term 1997). Discovery in the MDL action
(which was provided to New York) shows that certain of the potential assignors either did,
or attempted to, pass-on any DRAM overcharge to their customers. For any amount
passed-on, neither the assignors, nor New York as the assignee, can recover it.
3. Actions of Third Parties Beyond a Defendant’s Control12
A party cannot be held liable for the actions of third parties over whom it
had no control. Each of these defenses alleges a lack of control over third parties. New
York cannot claim it lacks sufficient notice that Defendants disclaim liability for the
actions of any such third parties.
4. Offset13
New York settled with defendant Samsung who, as an alleged member of
the price-fixing conspiracy, is jointly liable with Defendants for New York’s alleged
injuries. Merrill Lynch, Pierce, Fenner & Smith Inc. v. Arcturus Builders Inc., 159
A.D.2d 283, 285 (N.Y. App. Div. 1990). Other Defendants are entitled to an offset
against New York’s recovery, if any, based on the prior settlement with Samsung. Thus,
Defendants have adequately pled this defense.
5. Foreign Conduct14
As this Court has previously ruled in this MDL proceeding, the FTAIA
prevents recovery for any extra-U.S. conduct that was neither directed to nor affected
11 This defense is asserted by the following Defendants: Infineon (44th defense), and
NEC (27th defense).
12 This defense is asserted by the following Defendants: Hynix (23rd and 24th
defenses), Infineon (11th defense), Elpida (12th and 24th defenses), Mosel (11th defense),
and NEC (31st defense).
13 This defense is asserted by the following Defendants: Hynix (25th defense), Elpida
(25th defense), and NEC (32nd defense).
14 This defense is asserted by the following Defendants: Hynix (26th defense), and
Infineon (32nd and 43rd defense).
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MDL NO. 1486, CASE NO. C-06-06436 PJH
persons in the United States. See In re DRAM Antitrust Litig., MDL No. 1486, 2006 WL
515629 (N.D. Cal. Mar. 1, 2006), aff’d, 538 F.3d 1107 (9th Cir. 2008). These defenses,
which use this language, provide New York with notice that Defendants contest claims
based on conduct that is outside the subject matter jurisdiction of this Court.
6. Unclean Hands15
New York is seeking both injunctive relief and damages. Unclean hands is a
valid defense against a claim for injunctive relief, and this defense is sufficient to put New
York on notice that these Defendants may raise New York’s own actions as a defense.
That is sufficient to survive New York’s motion for judgment on the pleadings.
7. Waiver/Estoppel16
New York is aware that it waited four (4) years after the Department of
Justice served its subpoena to file its original Complaint. Defendants are permitted to
argue that said delay constitutes waiver, or that New York’s actions estop it from seeking
relief.17 That is sufficient to put New York on notice of the nature of this defense.
8. Voluntary Payments18
New York does not argue, and cannot argue, that the voluntary payment
doctrine is not a valid defense. See Dupler v. Costco Wholesale Corp., 249 F.R.D. 29, 38
(E.D.N.Y. 2008). And New York’s own Amended Complaint sets forth facts that, if
proven, support this defense. New York alleges that the DOJ issued its subpoena in June
2002. (See Am. Compl. (Docket No. 84) ¶ 63.) Yet, New York seeks damages for
purchases through December 2002. (See id. ¶ 79.) Alleged overcharges, if any, paid on
purchases made after New York was on notice of the possible price-fixing conspiracy are
15 This defense is asserted by the following Defendants: Hynix (32nd defense),
Infineon (13th defense), Elpida (30th defense), and NEC (4th defense).
16 This defense is asserted by the following Defendants: Hynix (33rd defense),
Infineon (10th defense), Elpida (30th and 39th defenses), Mosel (6th, 7th, and 25th defenses),
and NEC (2nd defense).
17 These same facts support the laches defense asserted by Infineon (9th defense),
Mosel (5th defense), and NEC (3rd defense).
18 This defense is asserted by the following Defendants: Hynix (49th defense),
Infineon (29th and 39th defenses), Mosel (25th defense), and NEC (44th defense).
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MDL NO. 1486, CASE NO. C-06-06436 PJH
potentially unrecoverable as voluntary payments. This is precisely what this defense
states, and thus it is adequately pled.
9. Challenging Assignments19
It is not clear why New York believes this defense is insufficient. As the
party seeking to recover by assignment, New York has the burden of proving a valid
assignment. See Simon v. Shearson Lehman Bros., Inc., 895 F.2d 1304, 1321 (11th Cir.
1990). A defense to such a claim is that the assignment is invalid, which is what
Defendants allege in these defenses. Additionally, given that Defendants moved to
dismiss New York’s assignment claims and have sought discovery regarding those claims,
the record provides sufficient support for this defense.
10. Prior Settlements20
Given that New York had notice of the fact that several Defendants have
already settled with indirect purchasers, it cannot credibly claim that it does not
understand this defense. Nor can New York claim that prior settlements are not a valid
defense to its claims. Instead, New York wants to use its motion to obtain the discovery it
neglected to obtain in a timely manner. This Court should not condone New York’s
strategy.
11. Failure to Join Indispensable Parties21
As noted above, New York has the burden of proving valid assignments for
certain claims it alleges. Defendants have taken extensive discovery regarding New
York’s assignment claims, and asserted in prior motions that parties other than New York
are the appropriate parties to seek recovery. Indeed, some of those parties have already
sought and/or received recovery. Accordingly, to the extent that there has been antitrust
injury – which Defendants deny – New York has failed to join those more appropriate
19 This defense is asserted by the following Defendants: Hynix (51st defense), and
Elpida (42nd defense).
20 This defense is asserted by the following Defendants: Hynix (52nd defense), Nanya
(15th defense), Micron (15th defense), Infineon (24th defense), and NEC (53rd defense).
21 This defense is asserted by the following Defendants: Infineon (7th defense), Elpida
(9th defense), Mosel (4th defense), and NEC (21st defense).
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MDL NO. 1486, CASE NO. C-06-06436 PJH
parties in its Complaint. Because this is a threshold issue designed to prevent the
“substantial risk” of double or multiple recovery, absent joinder, this Court may not be
able to “accord complete relief among the existing parties.” Fed. R. Civ. P. 19(a)(1)(A) &
(B); see, e.g., Am. Greyhound Racing, Inc. v. Hull, 305 F.3d 1015, 1022, 1027 (9th Cir.
2002). New York has notice of these facts and, therefore, has notice of this defense.
12. Failure to Mitigate Injuries22
This defense is self-explanatory and should provide New York with
sufficient notice. See Board of Trs. of San Diego Elec. Pension Trust, 2007 WL 2070355
at *3 (holding defendant's mere allegation that "plaintiff failed to mitigate damages" was
sufficiently pled); Hernandez, 2007 WL 1649911 at *6-8 (same). As a plaintiff, New
York is under a duty to mitigate its damages because “a person injured by another's
wrongful conduct will not be compensated for damages that the injured person could have
avoided by reasonable effort or expenditure.” State Dept. of Health Services v. Superior
Court, 31 Cal. 4th 1026, 1043 (2003). It is proper to assert this defense in any case, and is
especially proper here since New York has not submitted any evidence that it mitigated its
damages, if any there be.
13. Price Controlled by Plaintiff and/or Other Purchasers23
Defendants have sought extensive discovery on the issue of whether New
York and other plaintiffs in companion cases testing the theory of whether plaintiffs had
purchasing power sufficient to control the prices of DRAM and DRAM-containing
products and therefore establishing that Defendants’ lacked the control to price-fix these
products. This factual record clearly gives New York notice that Defendants would assert
this defense.
22 This defense is asserted by the following Defendants: Infineon (16th defense),
Elpida (14th defense), Mosel (19th defense), and NEC (11th defense).
23 This defense is asserted by the following Defendants: Elpida (38th defense), Mosel
(16th defense), and NEC (34th defense).
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MDL NO. 1486, CASE NO. C-06-06436 PJH
14. Comparative Fault of Plaintiff or Third Parties and
Acquiescence24
New York, and those on whose behalf New York purports to bring the
Amended Complaint, had various sourcing options for DRAM, including the spot market.
Nonetheless, they chose to purchase DRAM Defendants. This is sufficient to put New
York on notice of the nature of these defenses.
15. Conflict of Interest25
The plain language of this defense is sufficient to give New York fair notice
of the nature of the defense and Defendants’ assertion that New York is an inadequate
representative of those on whose behalf it purports to bring the Amended Complaint.
16. Increased Output and Lower Prices26
Defendants’ expert reports in the MDL provide New York with sufficient
notice of Defendants’ assertion that the matters about which New York complains resulted
in increased output and lower prices for DRAM. New York cannot credibly claim that it
does not understand this defense.
17. Incorporation of Co-Defendant Defenses27
It is common practice in multi-party litigation for defendants to incorporate
by reference other defenses asserted by co-defendants. This defense is designed to
preclude a claim of waiver if a party seeks to amend to pursue a defense pled by a co-
defendant. As it is clear from the straightforward language of this defense that the
pleading defendant seeks to incorporate additional defenses asserted by its co-defendants,
this defense need not be re-pled. The Court can simply decide, as a matter of law, if this
form of pleading is proper.28
24 This defense is asserted by NEC (22nd and 23rd defenses).
25 This defense is asserted by NEC (28th defense).
26 This defense is asserted by NEC (33rd defense).
27 This defense is asserted by the following Defendants: Hynix (56th defense), Nanya
(24th defense), Micron (21st defense), Infineon (45th defense), Elpida (46th defense), Mosel
(42nd defense), and NEC (54th defense).
28 The same is true of the defense reserving a defendant’s right to assert any
additional defenses applicable to the claims New York asserts. (See Nanya’s 25th defense,
Micron’s 22nd defense, Infineon’s 42nd defense, Elpida’s 47th defense, Mosel’s 41st
defense, and NEC’s 24th and 55th defenses).
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LA2:871698.2 - 19 -
DEFENDANTS’ OPP’N TO NY’S MOTION
FOR PARTIAL JOP OR DISCOVERY
MDL NO. 1486, CASE NO. C-06-06436 PJH
V. CONCLUSION
For the foregoing reasons, New York’s Motion for Partial Judgment on the
Pleadings, or in the Alternative, for Discovery, should be denied. Alternatively, if the
Court grants the motion as to any defense, Defendants request that the defendant(s) who
asserted that defense be given an opportunity to amend its answer to re-plead the defense.
Dated: October 15, 2008 O’MELVENY & MYERS LLP
KENNETH R. O’ROURKE
MICHAEL F. TUBACH
STEVEN H. BERGMAN
KATHERINE M. ROBISON
By: /Steven H. Bergman/
Steven H. Bergman
Attorneys for Defendants
HYNIX SEMICONDUCTOR INC. and HYNIX
SEMICONDUCTOR AMERICA INC.
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LA2:871698.2 - 20 -
DEFENDANTS’ OPP’N TO NY’S MOTION
FOR PARTIAL JOP OR DISCOVERY
MDL NO. 1486, CASE NO. C-06-06436 PJH
Additional opposing Defendants and Counsel:
Joel S. Sanders
G. Charles Nierlich
Joshua D. Hess
GIBSON, DUNN & CRUTCHER LLP
One Montgomery Street
Montgomery Tower, 31st Floor
San Francisco, CA 94104
(415) 393-8200 (telephone)
(415) 986-5309 (facsimile)
Attorneys for Defendants Micron
Technology, Inc. and Micron
Semiconductor Products, Inc.
Aton Arbisser
Julian Brew
Joshua Stambaugh
KAYE SCHOLER LLP
1999 Avenue of the Stars, Suite 1700
Los Angeles, CA 90067
(310) 788-1000 (telephone)
(310) 788-1200 (facsimile)
Attorneys for Defendants Infineon
Technologies North America Corp. and
Infineon Technologies AG
Stephen V. Bomse
David C. Brownstein
ORRICK, HERRINGTON &
SUTCLIFFE LLP
The Orrick Building
405 Howard Street
San Francisco, CA 94105-2669
(415) 773-5700 (telephone)
(415) 773-5759 (facsimile)
Attorneys for Defendants Mosel
Vitelic Corporation and Mosel Vitelic
Incorporated
James G. Kreissman
Harrison J. Frahn IV
Gabriel N. Rubin
SIMPSON THACHER & BARTLETT LLP
2550 Hanover Street
Palo Alto, CA 94304
(650) 251-5000 (telephone)
(650) 251-5002 (facsimile)
Attorneys for Defendants Elpida Memory
(USA) Inc. and Elpida Memory, Inc.
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LA2:871698.2 - 21 -
DEFENDANTS’ OPP’N TO NY’S MOTION
FOR PARTIAL JOP OR DISCOVERY
MDL NO. 1486, CASE NO. C-06-06436 PJH
Howard M. Ullman
ORRICK, HERRINGTON &
SUTCLIFFE LLP
The Orrick Building
405 Howard Street
San Francisco, CA 94105-2669
(415) 773-5700 (telephone)
(415) 773-5759 (facsimile)
Robert Freitas
ORRICK, HERRINGTON &
SUTCLIFFE LLP
1000 Marsh Road
Menlo Park, CA 94025-1021
(650) 614-7400 (telephone)
(650) 614-7401 (facsimile)
Attorneys for Defendants Nanya
Technology Corporation and Nanya
Technology Corporation USA
Robert B. Pringle
Paul R. Griffin
Jonathan E. Swartz
THELEN LLP
101 Second Street, Suite 1800
San Francisco, CA 94105
(415) 371-1200 (telephone)
(415) 371-1211 (facsimile)
Attorneys for Defendant NEC Electronics
America, Inc.
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LA2:871698.2 - 22 -
DEFENDANTS’ OPP’N TO NY’S MOTION
FOR PARTIAL JOP OR DISCOVERY
MDL NO. 1486, CASE NO. C-06-06436 PJH
ATTESTATION OF FILING
Pursuant to General Order No. 45 § X(B), I hereby attest that I have obtained
concurrence in the filing of Defendants’ Opposition to New York’s Motion for Partial
Judgment on the Pleadings, or in the Alternative, for Discovery from all of the Defendants
listed in the signature blocks above.
___/Steven H. Bergman/______
Steven H. Bergman
Attorneys for Defendants
HYNIX SEMICONDUCTOR INC. and
HYNIX SEMICONDUCTOR AMERICA
INC.
CaseM:02-cv-01486-PJH Document1923 Filed10/15/08 Page27 of 27
