Motion to strike denied; motion for sum- mary judgment granted. 1. Federal Civil Procedure O1278 Defendant’s failure to include witness in its initial disclosures was harmless, where witness’s identity, position, location, claims under Section 1 and the Cartwright Act survive Yardi’s Motion to Dismiss, the Court does not reach the issue whether the UTSA preemption applies in this case. Case 2:17-cv-00177-CCC-MF Document 51-1 Filed 06/05/17 Page 19 of 19

V. PENDENT STATE CLAIMS In addition to alleging federal claims under 15 U.S.C. § 1, § 2, and 15 U.S.C. § 1125(a), plaintiff also asserts state law claims. Where a court has jurisdiction over one or more aspects of a case, it may properly assert jurisdiction over any other aspects of the case that share a common nucleus of operative facts.

Interestingly, Defendant omitted any reference to these exhibits in its present motion. Case 3:15-cv-00489-VC Document 83 Filed 10/09/15 Page 10 of 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFFS’ RESPONSE TO DEFENDANT’S MOTION TO DISMISS [DOC. NO. 79] - 6 - CASE NO. 3:15-cv-00489-VC. Inc. v. Int’l Parts Corp., 392 U.S. 134, 139-142, (1968) overruled on other grounds by Copperweld Corp. v. Indep. Tube Corp., 467 U.S. 752 (1984); W. Duplicating, Inc. v. Riso Kagaku Corp., No. CIV. S98-208 FCD GGH, 2000 WL 1780288, at *6 (E.D. Cal. Nov. 21, 2000). Second, Defendant violated Section 1 with illegal tie-in arrangements. SAC ¶¶ 116-121.

The few exceptions to this principle included cases where officials of a standard-setting organization conspired to restrict competition, or where members of a standard- setting organization colluded to eliminate competitors from the market. See, e.g., Allied Tube, 486 U.S. 492 (1988) (finding § 1 liability where members of standard-setting organization stacked vote to adopt standards that excluded competing products); Am. Soc’y of Mech. Eng’rs, Inc. v. Hydrolevel Corp., 456 U.S. 556 (1982) (finding standard-setting organization liable under § 1 where officials manipulated standards to exclude competitors). In its counterclaim, Apple alleges neither that ETSI or its agents influenced the standardization process so as to harm competition, nor that Samsung conspired with other members of ETSI to restrict competition. Instead, Apple merely alleges that the standards-setting process “constitutes concerted activity” and that Samsung’s alleged breach of ETSI rules subjects it to § 1 and Cartwright Act liability. (D.N. 124 Counterclaims ¶¶ 182-83.) Even assuming purely for the purposes of this motion that Apple’s allegations are taken as true, these facts cannot form the basis for a claim under Section One of the Sherman Act or the California Cartwright Act.

(emphasis added). Twombly confirms that a § 1 claim can be made on the basis of circumstantial allegations alone, including allegations of parallel conduct alone under certain circumstances.13 Indeed, the Court noted that “[a]n allegation of parallel conduct is thus much like a naked assertion of conspiracy in a § 1 complaint: it gets the complaint close to stating a claim.” Id. at 1966 (emphasis added).

Not only is Dagher not controlling, it has no application here because it dealt with fundamentally different facts. Directly on point and controlling instead is Citizen Publishing Co., 394 U.S. 131 (1969), a decision defendants avoid altogether, which affirmed summary judgment for the Government in a Section 1 challenge to a joint venture of newspapers in Tucson, Arizona.

NewCal Industries, Inc., et al. v. IKON Office Solutions, Inc., et al. (Case No. C 04 2776JCS) -29- IKON contends that Newcal’s Section 1 Sherman Act exclusive dealing claim fails for the same reasons that their conspiracy claim fails -- namely, because plaintiffs cannot properly define the relevant market based on a group of buyers who have. For the reasons discussed immediately above, this argument should be rejected. IKON also argues that plaintiffs’ exclusive dealing claim fails because Newcal has not pointed to any language in the contracts between IKON and its customers requiring exclusivity.

Had these risks materialized, their impact could have been substantial, including the risk of no recovery at all. B. Procedural History 1. Motion Practice and Discovery On June 14, 2010, Physical Plaintiffs filed an initial seventeen-page class action complaint against certain Moore Defendants and asserted claims under Section 1 of the Sherman Act. On August 10, 2010, Physical Plaintiffs filed a 62-page amended class action complaint.

Plaintiffs specifically allege that each Defendant participated in express agreements with knowledge of other express agreements and with the intent and effect of suppressing the compensation and mobility of 2 The Court should apply judicial estoppel to prevent Defendants from now taking the inconsistent position that Plaintiffs’ Complaint does not “state a claim upon which relief may be granted against the Defendants under Section One of the Sherman Act, as amended, 15 U.S.C. § 1.” According to Defendants, “Plaintiffs’ factual allegations are taken wholesale, and often verbatim, from the factual allegations in the DOJ complaints.”

15 15 See, e.g., City of Moundridge, 250 F.R.D. at 3 (“Unlike in Twombly, the plaintiffs here do not rely on only bare allegations of parallel behavior, or assume that there is a conspiracy because there is an „absence of any meaningful competition.‟”) (citing Twombly, 550 U.S. at 564-65); Fair Isaac Corp., 2008 WL 623120, at *5 (“The Twombly plaintiffs‟ allegations of an illegal § 1 agreement rested exclusively on the parallel conduct of the defendant regional telecommunications providers.”). Case 1:09-cv-23187-CMA Document 166 Entered on FLSD Docket 04/22/2010