HUGHES HUBBARD & REED LLP By: /s/ Ethan E. Litwin Ethan E. Litwin Ethan E. Litwin (admitted pro hac vice) Sigrid Jernudd (admitted pro hac vice) One Battery Park Plaza New York, NY 10004-1482 Telephone: (212) 837-6000 Facsimile: (212) 422-4726 Ethan.Litwin@hugheshubbard.com Sigrid.Jernudd@hugheshubbard.com Attorneys for Defendants Soshin Electric Co., Ltd. and Soshin Electronics of America Inc. REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED Case 3:14-cv-03264-JD Document 985 Filed 12/18/15 Page 29 of 30 Baker & McKenzie LLP Two Embarcadero Center, 11th Floor San Francisco, CA 94111 +1 415 576 3000 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 26 Case No. 3:14-cv-03264-JD DEFS’ REPLY TO PLS’ OPP TO DEFS’ JT MOT FOR PARTIAL SJ OR IN THE ALTERNATIVE TO SIMPLIFY ISSUES UNDER FRCP 16 BONA LAW PC By: /s/ Jarod M. Bona Jarod M. Bona Jarod M. Bona (SBN 234327) Aaron R. Gott (admitted pro hac vice) BONA LAW PC 4275 Executive Square, #200 La Jolla, CA 92037 Telephone: (858) 964-4589 Facsimile: (858) 964-2301 Email: jarod.bona@bonalawpc.com Email: aaron.gott@bonalawpc.com Attorneys for Taitsu Corporation and Taitsu America, Inc. Pursuant to Local Rule 5-1(i)(3), I attest that concurrence in the filing of this document has been obtained from each of the above signatories.

Should this Court desire a fully developed factual record, it should delay resolution of this issue under Fed. R. Civ. P. 56(d) until the end of discovery, when IPPs may make a full factual and econometric showing of the “effect” of the price fixing conspiracy on the U.S. purchasers and domestic market. PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ JOINT MOTION FOR PARTIAL SUMMARY JUDGMENT DISMISING PLAINTIFFS’ INDIRECT PURCHASER CLAIMS BASED ON FOREIGN SALES OR, IN THE ALTERNATIVE, TO SIMPLIFY THE ISSUES UNDER FED. R. CIV. P. 16; Case No. 3:14-cv-03264-JD 24 Case 3:14-cv-03264-JD Document 965 Filed 11/23/15 Page 29 of 29

Plaintiffs and CVLO must be required to, and must in fact, meet their burden and comply with the rules and court orders in the same manner, and to the same extent, as every other litigant and attorney in federal court. For these reasons, Defendant Owens-Illinois, Inc. respectfully requests that the Court strike “Plaintiffs’ Amended Statement on Expert Witness Reports” (e.g., No. 2:10-cv- 67443-ER, ECF No. 324) as to Owens-Illinois, Inc. pursuant to Federal Rules of Civil Procedure 16(f) and 37(b). Case 2:09-cv-60256-ER Document 132

The motion to amend does not even acknowledge that it was filed after the bar of the April 22, 2011 Scheduling Order. Thus, the motion also fails to even address the rule 16 good cause requirement necessary to overcome that bar. Even setting that aside, the motion to amend also fails upon consideration of the rule 15 factors.

TOTAL has not argued, much less proven, that the December 22, 2017 deadline could not “reasonably be met despite the diligence of” TOTAL. See S&W Enterprises, 315 F.3d at 535. TOTAL should, therefore, be deemed to have waived any objections to MOGUS’s experts’ qualifications or the admissibility of their opinions and testimony as a result of its failure to comply with the Court’s Rule 16 Scheduling Order. See Fed. Case 4:16-cv-02674 Document 162 Filed in TXSD on 01/12/18 Page 8 of 11 9 R. Civ. P. 16(f); Fed. R. Civ. P. 37(b)(2)(A)(ii); Judge Hittner’s Procedures, p. 7; Leggett & Platt, 2008 WL 8792255 at *1. CONCLUSION For the foregoing reasons, the Protective Motion to Strike Reciprocal Expert Reports and Testimony filed by Total E&P USA, Inc. should be denied.

Capital One should first produce its records on consent and/or terms and conditions which may impact consent before Defendant is required to go through the cost, time and expense of producing class discovery. 6 130440690v1 0927670 Case: 1:11-cv-05886 Document #: 105 Filed: 09/28/12 Page 6 of 9 PageID #:696 21. Both FRCP 1 and 16 support structuring or bifurcating discovery to require Plaintiffs and Capital One to first deal with the issues of consent. Only after this is exhausted should Defendant be required to review its records of consent.

Vazquez v. LCM Inv. Group, Inc., 2006 WL 4835922, at *2 (M.D.Fla. Aug. 24, 2006) (citing Fed.R.Civ.P. 16 Advisory Committee's Note). “Recognizing the perils of disorderly litigation, '[t]he Eleventh Circuit has consistently held that motions filed after a deadline imposed by a court should be denied as untimely.' ”

A “district court properly exercise[s] its discretion in denying [a] motion to amend [when the movant] delayed attempting to amend her complaint until more than three months after the deadline set by the district court, although she discovered facts giving rise to the potential amendment more than two months before that deadline.” Adams, 2007 WL 464741 at *1 (emphasis added) (Court held, based upon this showing, the movant “failed to show good cause for her failure to comply with the district court’s scheduling order under Federal Rule of Civil Procedure 16”). In Coleman, the moving party failed to move to amend its complaint, despite having knowledge of the facts which form the basis for its amendment well in advance of filing its motion and after the deadline set forth in the scheduling order.

// // // // // // // // 3 78 F.R.D. 388, 395 – 6 (D.C.W.D.Penna. 1978) 4 959 F.2d 1566, 1670 – 1 (11th Cir. 1992) Case 1:14-cv-00004-SLG Document 31 Filed 09/17/14 Page 3 of 4 Mot to Schedule FRCP 16 Conf Page 4 of 4 Cole v. Gene by Gene, Ltd. Case No. 1:14-cv-00004-SLG H oz ub in , M ob er ly , L yn ch & A ss oc ia te s A n A ss oc ia tio n of P ro fe ss io na l C or po ra tio ns 71 1 M S tre et , S ui te 2 , A nc ho ra ge , A la sk a 99 50 1 P: 9 07 .2 76 .5 29 7 F : 9 07 .2 76 .5 29 1 RESPECTFULLY submitted this 17th day of September, 2014.

After correcting that mistake, the Court should decide whther Headway’s Motion to Amend satisfies Rule 15. It is ironic that the Court’s “undue delay” discussion under Rule 16 overlooks the very facts that reveal it to be ill-founded. Specifically, the Court found that permitting the pro osed amendment now, when fact discovery has just ended, “would inevitably result in significant delay in resolving these complex, consolidated actions.” (April 2012 Order at 6).