Federal Trade Commission v. Directv, Inc. et al

Northern District of California, cand-4:2015-cv-01129

Exhibit A

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EXHIBIT A FTC v. DIRECTV 3:15-cv-01129 HSG DEPOSITION OF MICHAEL OSTHEIMER JUNE 9, 2016 SELECT PAGE/LINE DESIGNATIONS PAGE/LINE DESCRIPTION 18:19-23 19· ·Q.· But what I want to know is what the 20· ·commissioners -- what facts the commissioners 21· ·considered in determining that there was reason to 22· ·believe that the ads attached to the complaint were 23· ·likely to deceive consumers. 21:9-13 9· · Q.· Who is the first person within the FTC 10· ·organization -- and by that I mean staff attorneys, 11· ·members of bureaus -- to look at a DirecTV ad after 12· ·2010 and make a determination that it was 13· ·reasonably likely to deceive a reasonable consumer? 28:18-29:22 18· · · · Q.· What facts did the commissioners consider 19· ·in voting that there was reason to believe that 20· ·DirecTV's advertising had been likely to deceive 21· ·reasonable consumers under the circumstances? 22· · · · · · MR. SNOW:· Objection.· Attorney-client 23· ·communication, attorney work product, deliberative 24· ·process, and law enforcement privilege. 25· · · · · · The facts as selected by counsel and 1· ·presented to the Commission are the mental 2· ·impressions of counsel.· They are attorney-client 3· ·communications, because those facts are selected as 4· ·being relevant to the case for presentation to the 5· ·Commission.· For that reason, it's attorney-client 6· ·communication.· It's core communication.· It's a 7· ·core work product of staff, and I instruct the 8· ·witness not to answer. 9· ·BY MR. HUMMEL: 10· · · · Q.· Were there any facts considered by the 11· ·commissioners in making those independent 12· ·determinations other than a facial review of the 13· ·ads themselves? 14· · · · · · MR. SNOW:· Same instruction.· Don't answer 15· ·the question. 16· ·BY MR. HUMMEL: 17· · · · Q.· Isn't it true that when the Commission 18· ·made its determination, the FTC had no facts other 19· ·than a facial review of the ads themselves to 20· ·support an allegation that DirecTV's advertising FTC v. DIRECTV 3:15-cv-01129 HSG DEPOSITION OF MICHAEL OSTHEIMER JUNE 9, 2016 SELECT PAGE/LINE DESIGNATIONS PAGE/LINE DESCRIPTION 21· ·was likely to deceive reasonable consumers under 22· ·the circumstances? 59:4-6 4· · · · Q.· Did the Commission have any consumer 5· ·surveys available to it when it made its decision, 6· ·"yes" or "no"? 59:16-17 16· · · · Q.· Did the Commission have any studies 17· ·available to it when it made the determination? 59:21-60:1 21· · · · Q.· Did the Commission have any empirical data 22· ·other than a facial review of the ads themselves in 23· ·making a determination that it was reasonably -- 24· ·that there was reason to believe that it was -- 25· ·that the ads in question were likely to deceive ·1· ·reasonable consumers under the circumstances? 62:2-3 2· · · · Q.· Did the FTC perform, "yes" or "no," any 3· ·consumer surveys on the ads in question? 72:25-73:4 25· · · · Q.· What empirical evidence, as opposed to 1· ·consultant or expert opinion, exists to support the 2· ·contention in this interrogatory response under 3· ·oath that a reasonable consumer is unlikely to see 4· ·the material terms in DirecTV's TV ad? 77:7-8 ·7· · · · Q.· Are you aware of surveys that are covered ·8· ·by privilege? 84:11-19 11· · · · Q.· So the contention in the interrogatories 12· ·that consumers are unlikely to see or understand 13· ·the disclosures is based solely on a facial review 14· ·of the ad by some set of lawyers in the FTC. 15· · MR. SNOW:· Objection. 16· ·BY MR. HUMMEL: 17· · · · Q.· Is that true? 18· · · · A.· That's not what I said. 19· · · · Q.· Is that true? 110:8-13 8· · · · Q.· In determining that that TV ad with that 9· ·price card was deceptive and filing a complaint in 10· ·federal court, did the FTC have any facts to 11· ·support the allegation that a significant minority 12· ·of consumers did not see and understand those 13· ·disclosures? 110:24-111:1 24· · · · Q.· Are there any facts which support the 25· ·contention that reasonable consumers do not see and 2 FTC v. DIRECTV 3:15-cv-01129 HSG DEPOSITION OF MICHAEL OSTHEIMER JUNE 9, 2016 SELECT PAGE/LINE DESIGNATIONS PAGE/LINE DESCRIPTION 1· ·understand those disclosures? 136:3-7 ·3· · · · Q.· In support of its allegation of consumer ·4· ·deception, does the FTC have any facts which show ·5· ·the percentage of consumers who view the TV ad who ·6· ·actually don't know that there's a 2-year ·7· ·commitment? 136:23-137:2 23· · · · Q.· In support of the allegation of consumer 24· ·deception in this complaint, are you aware of any 25· ·facts which demonstrate that consumers believe, 1· ·having viewed the TV ad, that there is no 2-year 2· ·commitment? 137:22-138:2 22· · · · Q.· In support of the allegation of consumer 23· ·deception in this complaint, are you aware of any 24· ·facts which demonstrate that consumers believe, 25· ·having viewed the TV ad, that there is an · 1· ·introductory programming price that lasts more than 2 12 months? 139:16-20 16· · · · · · Are there any facts, separate and apart 17· ·from expert work in this case, other than facial 18· ·review of the complaint, that support the notion 19· ·that consumers take away false messages having 20· ·viewed the TV ad? 149:19-150:7 19· · · · Q.· Right.· What facts does the FTC have that 20· ·support the notion that consumers take away from 21· ·this print ad a misimpression? 22· · · · · · MR. SNOW:· Again, don't reveal privileged 23· ·information, but you can answer. 24· · · · · · THE WITNESS:· The print ad in several 25· ·places – 1· ·BY MR. HUMMEL: 2· · · · Q.· I'm sorry, if you're just going to say the 3· ·ad itself, that's fine.· I understand what the FTC 4· ·alleges with respect to the ad. 5· · · · · · Other than a facial review of the ad, what 6· ·facts could the FTC have that consumers take away a 7· ·misimpression about allegedly material terms? 150:20-21 20 Q. What's the nature of the privileged 21 information (facts the FTC has that would support the conclusion that consumers take away a misimpression about allegedly material terms)? 3 FTC v. DIRECTV 3:15-cv-01129 HSG DEPOSITION OF MICHAEL OSTHEIMER JUNE 9, 2016 SELECT PAGE/LINE DESIGNATIONS PAGE/LINE DESCRIPTION 163:14-15 14 Q. Was any fact gathering in that regard 15 conducted in this case? 164:2-6 ·2· · · · Q.· Did the FTC consider any facts about how ·3· ·many consumers canceled their subscription because ·4· ·a print ad didn't, according to you, proximately ·5· ·sufficiently disclose the requirement of a 24-month ·6· ·agreement for all DirecTV programming offers? 165:14-17 14· · · · Q.· Are you aware of any facts that support 15· ·the notion that consumers are in fact likely to be 16· ·deceived by the placement of disclosures in this 17· ·ad? 172:12-14 12· · · · Q.· Is it true that all the facts supporting 13· ·the allegations in the complaint are contained in 14· ·the complaint? 179:6-9 ·6· · · · Q.· Are you familiar with any studies that ·7· ·show that consumers chose DirecTV over a competitor ·8· ·as a result of some factor other than price?· For ·9· ·example, Sunday Ticket being available? 185:16-21 16· · · · Q.· And again, your -- the FTC's conclusion in 17· ·this case that DirecTV did not adequately disclose 18· ·the terms of its pricing plan is based on solely a 19· ·facial review, and potentially some expert 20· ·testimony that may or may not come down the road. 21· ·Correct? 189:12-14 12· · · · Q.· And my question is, what evidence do you 13· ·have, if any, that demonstrates that that's why 14· ·consumers choose DirecTV over the competition? 192:9-14 ·9· · · · Q.· Are there any facts that support the 10· ·allegations of deception that demonstrate that so 11· ·much as a single consumer viewing the television ad 12· ·or a print ad and then ultimately subscribed 13· ·through the phone or the web didn't know all of the 14· ·material terms of the service? 274:24-275:1 24· · · · Q.· But you have done no extrinsic testing to 25· ·determine whether this disclosure in Exhibit 5· 1· ·would be adequate? 286:14-16 14 Q. When did the FTC first examine a DirecTV 15 web subscription flow and determine that material 16 terms were not clearly and conspicuously disclosed? 4 FTC v. DIRECTV 3:15-cv-01129 HSG DEPOSITION OF MICHAEL OSTHEIMER JUNE 9, 2016 SELECT PAGE/LINE DESIGNATIONS PAGE/LINE DESCRIPTION 295:4-24 4· · · · Q.· Okay.· But in terms of the facts that you 5· ·know about that support the allegations of 6· ·deception, with respect to, generally, the 7· ·illustrative ads in the complaint -- which are the 8· ·print ad, the TV ad, the website, and the banner 9· ·ad -- is a facial review of the ads themselves. 10· · · · · · That's the principal factual basis you've 11· ·given today.· Right?· A facial review? 12· · · · A.· It's the principal factual basis I have 13· ·given.· That does not mean it's the only basis. 14· · · · Q.· Okay.· And my question is, other bases 15· ·include what?· Expert opinion, which we're not 16· ·getting into.· And what else? 17· · · · · · I've not heard you say one other bit of 18· ·information, other than Shannon Campain's alleged 19· ·statement that the second-year price is not 20· ·disclosed in the phone script, or the required call 21· ·components. 22· · · · · · Anything else? 23· · · · A.· Not that I know of beyond privileged 24· ·information. 299:3-9 3· · · · Q.· What is the evidence of a facial review of 4· ·the ads in this case? 5· · · · · · MR. SNOW:· Objection.· Vague as to what it 6· ·means to be evidence of a facial review. 7· ·BY MR. HUMMEL: 8· · · · Q.· Who did it, when was it done, where was it 9· ·done, where were the conclusions recorded? 5