In re: National Collegiate Athletic Association Athletic Grant-In-Aid Cap Antitrust Litigation

Northern District of California, cand-4:2014-md-02541

OPPOSITION to PLAINTIFFS REQUEST FOR ADDITIONAL REBUTTAL EXPERT TESTIMONY by Pacific 12 Conference, National Collegiate Athletic Association, et al. Modified on 9/24/2018

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2 1 Sean Eskovitz (SBN 241877) Patrick Hammon (SBN 255047) WILKINSON WALSH + ESKOVITZ LLP SKADDEN, ARPS, SLATE, MEAGHER & 2 11726 San Vicente Blvd., Suite 600 FLOM LLP Los Angeles, CA 90049 525 University Avenue, Suite 1100 3 Telephone: (424) 316-4000 Palo Alto, CA 94301 Facsimile: (202) 847-4005 Telephone: (650) 470-4500 4 Facsimile: (650) 470-4570 5 Beth A. Wilkinson (pro hac vice) Brant W. Bishop, PC (pro hac vice) Jeffrey A. Mishkin (pro hac vice) 6 Alexandra M. Walsh (pro hac vice) Karen Hoffman Lent (pro hac vice) Brian L. Stekloff (pro hac vice) SKADDEN, ARPS, SLATE, MEAGHER & 7 Lori Alvino McGill (pro hac vice) FLOM LLP Rakesh N. Kilaru (pro hac vice) Four Times Square 8 WILKINSON WALSH + ESKOVITZ LLP New York, NY 10036 2001 M Street NW, 10th Floor Telephone: (212) 735-3000 9 Washington, DC 20036 Facsimile: (212) 735-2000 Telephone: (202) 847-4000 10 Facsimile: (202) 847-4005 11 Attorneys for Defendants NATIONAL COLLEGIATE ATHLETIC 12 ASSOCIATION and WESTERN ATHLETIC CONFERENCE 13 [Additional Counsel Listed on Signature 14 Attorneys for Defendant Page] NATIONAL COLLEGIATE ATHLETIC 15 ASSOCIATION 16 IN THE UNITED STATES DISTRICT COURT 17 FOR THE NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION 18 19 IN RE NATIONAL COLLEGIATE MDL Docket No. 4:14-md-02541-CW ATHLETIC ASSOCIATION ATHLETIC 20 GRANT-IN-AID CAP ANTITRUST LITIGATION DEFENDANTS' OPPOSITION TO 21 PLAINTIFFS' REQUEST FOR ADDITIONAL REBUTTAL EXPERT 22 TESTIMONY 23 This Document Relates to: Trial Date: September 4, 2018 24 ALL ACTIONS EXCEPT Jenkins v. Nat'l Judge: Hon. Claudia Wilken Collegiate Athletic Ass'n, Case No. 14-cv- 25 02758-CW 26 27 28 DEFS.' OPPOSITION TO PLAINTIFFS' REQUEST FOR ADD'L REBUTTAL MDL No. 4:14-md-02541-CW EXPERT TESTIMONY 2 1 I. INTRODUCTION 2 For the past six months, the Court has been clear on the manner in which expert testimony 3 would be presented in this trial – with all direct testimony and Plaintiffs' responsive testimony 4 submitted in writing, and cross-examination and redirect taking place live in court.1 The Court's 5 procedure for trial left no need for another round of rebuttal expert testimony, because the Court 6 designed it following three rounds of simultaneously-exchanged expert reports in 2017. The Court 7 recognized as much at the May 22, 2018 Case Management Conference: 8 Rebuttal is strictly rebuttal, and that's an answer to something that you could not have anticipated. If Noll testifies what -- Noll's direct testimony will be known to 9 you in advance. If he says something that isn't in his report, it will be excluded. If somehow it isn't, then the only thing that's rebuttal is -- well, it's not rebuttal at 10 all, it's an opposition, is things that you didn't know he was going to say. But you do know what he's going to say so you don't need rebuttal. 11 Each expert says what their report says they were going to say, and they're cross- 12 examined and redirected, and that's the end of it. There really isn't any call for rebuttal unless someone somehow says something unexpected, and I don't see 13 how that can really happen given the level of pretrial prep that we're having.2 14 As part of the Court's process, Plaintiffs were permitted to submit written expert testimony 15 in reply to Defendants' experts' written testimony. 3 Plaintiffs filed broad "Rebuttal Testimony" 16 from all three of their experts addressing both the second and third prongs of the Rule of Reason 17 analysis.4 Despite the clarity of the Court's procedural approach binding both parties, Plaintiffs 18 seek to permit Dr. Noll to have a third opportunity to respond to Defendants' experts' criticisms of 19 an unpublished law review article (the "Law Review Article," described in more detail below), 20 21 22 1 See Order Granting in Part and Denying in Part Cross-Motions for Summary Judgment (Dkt. 23 804) at 36:4-6; Order Scheduling CMC and Hearing on Motion to Continue (Dkt. 816) at 2:4-11. 2 24 Transcript of May 22, 2018 Telephonic Case Management Conference (Dkt. 831) ("May CMC Tr.") at 20:9-23 (emphasis added). 25 3 Stipulation and Order for Pretrial Proceedings (Dkt. 836) ("Pretrial Order") at 2:22-3:3 ("Plaintiffs will file any opposition expert declarations (direct testimony) on pro-competitive 26 justification testimony contained in the declarations by Defendants' experts."). 27 4 Dkt. 921-1 ("Rebuttal Testimony of Dr. Roger G. Noll"), Dkt. 921-2 ("Rebuttal Testimony of Hal Poret"), Dkt. 921-3 ("Rebuttal Testimony of Dr. Daniel A. Rascher"). 28 1 DEFS.' OPPOSITION TO PLAINTIFFS' REQUEST FOR ADD'L REBUTTAL MDL No. 4:14-md-02541-CW EXPERT TESTIMONY 2 1 authored in part by Plaintiffs' trial counsel's former colleague, who has been publicly advocating 2 for the Court to use the article "as the lodestar for her ruling."5 3 Dr. Heckman's methodological criticisms of the Law Review Article were first raised in 4 his written direct testimony.6 Plaintiffs had the opportunity to rebut Dr. Heckman's criticisms of 5 the Law Review Article in Dr. Noll's written "Rebuttal Testimony," and in Dr. Noll's redirect 6 testimony. Dr. Heckman's articulation of those same criticisms during his own redirect 7 examination cannot be fairly characterized as unanticipated. 8 Plaintiffs' effort should therefore be rejected. 9 II. RELEVANT PROCEDURAL HISTORY 10 The sole issue that has been advanced to support Plaintiffs' request for a rebuttal case is Dr. 11 Heckman's redirect testimony criticizing the Law Review Article. That article was first referenced 12 in this case on July 3, 2018, nearly a year after the close of expert discovery, 7 when Dr. Noll 13 mentioned in his written direct testimony what he described as an "academic study undertak[ing] a 14 statistical test of whether the compensation system that was adopted in 2015 affected the 15 popularity of sports." Dkt. 865-4 at ¶ 112.8 Dr. Noll characterized the Law Review Article as 16 evidence related to "the effect of compensation in excess of COA on the popularity of college 17 sports." Dkt 865-4 at ¶¶ 110-112. Both Dr. Elzinga and Dr. Heckman criticized the Law Review 18 5 As a practicing lawyer, Mr. 19 Edelman spent years working for Plaintiffs' trial counsel. See, e.g., Parrish v. Nat'l Football League Players Ass'n, 534 F. Supp. 2d 1081, 1085 (N.D. Cal. 2007) (counsel listing). 20 6 See Dkt. 986-2 at ¶¶ 86-87 & nn.61-62. 21 7 At the pre-trial conference, the Court initially recognized that the Law Review Article was new evidence, absent from any of Plaintiffs' experts' reports, and should be excluded on that basis. 22 When Plaintiffs' counsel observed that "one of our experts, Professor Noll, said here's a brand new study" in support of his opinions, the Court advised that its "view would be that should not 23 come in," absent stipulation of the parties. The parties reached no such stipulation. Transcript of July 19, 2018 Pre-trial Conference (Dkt. 941) ("Pre-trial Conf. Tr.") at 41:2-42:7. The Court 24 ultimately allowed the Law Review Article to be discussed at trial because Defendants had already had the opportunity to respond to it. Order Resolving Motions to Exclude "New" Expert Opinions 25 (Dkt. 968) at 2:5-9, 3:3-4 ("The opinions at issue based on the Baker study will be admitted. Defendants' experts, Dr. Elzinga and Dr. Heckman, have already responded to the opinions at 26 issue in their direct testimony declarations."). 27 8 That "study" is unpublished, although the authors claim that publication is "forthcoming" in the Tennessee Law Review. PTX 1001 (Law Review Article) at P1001-0001. 28 2 DEFS.' OPPOSITION TO PLAINTIFFS' REQUEST FOR ADD'L REBUTTAL MDL No. 4:14-md-02541-CW EXPERT TESTIMONY 2 1 Article in their direct testimony. Dkt. 986-1 at ¶ 21; Dkt. 986-2 at ¶¶ 86-87 & nn.61-62. Dr. Noll 2 then responded to Defendants' experts' criticisms before trial, in his written rebuttal testimony, in 3 an effort to bolster his testimony on less-restrictive alternatives.9 Dkt. 921-1 at ¶¶ 16-22. 4 Plaintiffs' economists' written rebuttal was admitted into evidence on the first day of trial. 5 Tr. 190:12-18 (Dr. Rascher's rebuttal testimony); 193:20-194:5 (Dr. Noll's rebuttal testimony). 6 The first mention of a potential second round of rebuttal testimony from Plaintiffs' economic 7 experts—which would be the fourth round of testimony from Plaintiffs' economists—was near the 8 end of the first day of trial. Tr. 191:10-11. The next time Plaintiffs raised the possibility of calling 9 an economist for yet another round of rebuttal testimony was during the redirect examination of 10 Dr. Heckman. During that examination, over Plaintiffs' objection the Court permitted two 11 questions about the Law Review Article. Tr. 636:6-7. Defendants' counsel asked Dr. Heckman to 12 describe the technique used in the Law Review Article and to "describe [his] criticisms of the 13 technique and why they are important," a topic Dr. Heckman had previously addressed in his 14 written direct testimony. Tr. 636:10-16; Dkt. 986-2 at ¶¶ 86-87 & nn.61-62. Plaintiffs' counsel 15 objected to the questioning as going beyond the scope of cross-examination, Tr. 636:18-19, and 16 the Court suggested that Defendants' asking Dr. Heckman about the Law Review Article might 17 open the door to later rebuttal testimony limited to this study: 18 And I guess what I will have to add then is, you were objecting to rebuttal from Noll or Rascher so I'm afraid this might open the door 19 for that. Just so you know, that would be my prediction as to what happens next. 20 21 Tr. 636:20-23. 22 Dr. Heckman then testified about the same specific methodological flaws about the Law 23 Review Article's econometric model that he had previously identified in his written direct 24 testimony: 25 26 9 While he had not identified the article in his direct testimony, Dr. Rascher also made a passing 27 reference (in less than a sentence) to the Law Review Article in his rebuttal testimony. Dkt. 921-3 at ¶ 23. 28 3 DEFS.' OPPOSITION TO PLAINTIFFS' REQUEST FOR ADD'L REBUTTAL MDL No. 4:14-md-02541-CW EXPERT TESTIMONY 2 1  The model described in the article, a "demand equation," failed to account for ticket 2 prices. Tr. 637:25-638:8; see also Dkt. 986-2 at ¶ 87 n.62 (making the same 3 argument). 4  Because the change studied in the article (allowing full-COA athletic scholarships) 5 was studied over the period of only one year, there were questions about 6 consumers' awareness of the change and their ability to alter their short-term 7 behavior. Tr. 638:9-21; see also Dkt. 986-2 at ¶ 86 ("They assume that the move of 8 GIA to COA levels was immediately known by fans. They also assume that season- 9 ticket holders can rapidly change their minds."). 10  The model did not account for preexisting trends in attendance. Tr. 638:22-639:2; 11 see also Dkt. 986-2 at ¶ 86 n.61 (observing that if "the demand for football absent 12 the adoption of COA would have increased by 5,000 spectators per game from 2014 13 to 2015," the authors "would wrongfully conclude that COA had no effect"). 14 In response to Dr. Heckman's redirect testimony making these points from his written 15 direct testimony, Plaintiffs' counsel objected again and moved to strike the testimony. Tr. 637:10- 16 639:23. The Court again suggested that the testimony may have opened the door to rebuttal 17 testimony: 18 On the other hand, the Baker study is -- even though it's -- it only 19 covers a year, there only was a year to cover between then and now. So perhaps the problem would be better solved in the interest of truth 20 seeking to have a rebuttal from Dr. Noll or Rascher, whichever it would be, and address some of these issues rather than strike them. 21 22 Tr. 640:11-16. Plaintiffs' counsel argued that rebuttal "would be necessary because he's raised a 23 multitude of technical issues which I don't think it is fair to throw at this point at us, and we would 24 want to do that and we reserve the right to do that." Tr. 640:17-20. The Court neither struck the 25 testimony nor ordered that rebuttal testimony would be permitted. Tr. 641:23-25 26 27 28 4 DEFS.' OPPOSITION TO PLAINTIFFS' REQUEST FOR ADD'L REBUTTAL MDL No. 4:14-md-02541-CW EXPERT TESTIMONY 2 1 On September 17, 2018, Plaintiffs announced that they "intend to. . . recall Professor Noll 2 as rebuttal case at the end," representing that "that was discussed during his testimony." 10 Tr. 3 1078:5-8. To date, Plaintiffs have provided no basis for soliciting rebuttal testimony from Dr. 4 Noll, other than the inaccurate claim that Dr. Heckman's criticisms of the Law Review Article 5 were "thrown at" Plaintiffs for the first time during his redirect examination. See Tr. 640:17-20. 6 III. ARGUMENT 7 "It is well settled that evidence which properly belongs in the case-in-chief but is first 8 introduced in rebuttal may be rejected, so as to avoid prejudice to the defendant and to ensure the 9 orderly presentation of proof." Emerick v. U.S. Suzuki Motor Corp., 750 F.2d 19, 22 (3d Cir. 10 1984). As the Court has previously observed in this case, "[r]ebuttal is strictly rebuttal, and that's 11 an answer to something that you could not have anticipated." May CMC Tr. at 20:9-23. "When, 12 as here, the proposed rebuttal testimony could have been included in the same witness' direct 13 examination, it may be excluded." Settling Devotional Claimants v. Copyright Royalty Bd., 797 14 F.3d 1106, 1118 (D.C. Cir. 2015) (internal quotation marks omitted). 15 Plaintiffs cannot credibly claim that they "could not have anticipated" Dr. Heckman's 16 criticisms of Dr. Noll's reliance on the Law Review Article. In written direct testimony submitted 17 on July 11, 2018, Dr. Heckman offered the same specific methodological criticisms that he had 18 discussed in his live redirect testimony: (1) the failure to account for ticket prices, (2) the short 19 time frame and possibility that either consumers were not aware or could not adjust their behavior, 20 and (3) the failure to account for existing trends in attendance. See Dkt. 986-2 at ¶¶ 86-87 & 21 nn.61-62; Tr. 637:25-639:2 (discussed in the bullet points in Part II, supra). Dr. Noll had his 22 chance to respond to criticisms of the draft article in his written "Rebuttal Testimony," in which he 23 recognized Dr. Heckman's "criticism of the scholarly article. . . cited on the effect of the move to 24 COA in 2015 on the popularity of FBS football" and "respon[ded] to these criticisms." Dkt. 921-1 25 at ¶¶ 16-22 (discussing the Law Review Article's one-year time frame and failure to consider 26 10 27 It was not. Plaintiffs suggested that they "might, at the end of the case, have a rebuttal case" on the first day of trial, before Dr. Noll even took the stand. Tr. 191:10-11. 28 5 DEFS.' OPPOSITION TO PLAINTIFFS' REQUEST FOR ADD'L REBUTTAL MDL No. 4:14-md-02541-CW EXPERT TESTIMONY 2 1 ticket prices). Plaintiffs' claim that such criticism was unanticipated is also illogical in light of the 2 fact that Plaintiffs' experts were permitted to testify about the post-expert-discovery Law Review 3 Article only because Defendants' experts had criticized it in their written direct testimony. See 4 n.7, supra. That Dr. Noll may not have addressed each of the criticisms from Dr. Heckman's 5 written direct testimony in his written "Rebuttal Testimony" that he might now wish to address 6 does not permit a rebuttal case. 7 IV. CONCLUSION 8 Plaintiffs' request for a fourth round of testimony from Dr. Noll should be denied. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 DEFS.' OPPOSITION TO PLAINTIFFS' REQUEST FOR ADD'L REBUTTAL MDL No. 4:14-md-02541-CW EXPERT TESTIMONY 2 1 Dated: September 21, 2018 Respectfully submitted, 2 By: /s/ Beth A. Wilkinson By: /s/ Jeffrey A. Mishkin 3 Beth A. Wilkinson (pro hac vice) Jeffrey A. Mishkin (pro hac vice) Alexandra M Walsh (pro hac vice) Karen Hoffman Lent (pro hac vice) 4 Brian L. Stekloff (pro hac vice) SKADDEN ARPS SLATE MEAGHER Rakesh N. Kilaru (pro hac vice) & FLOM LLP 5 WILKINSON WALSH + ESKOVITZ LLP Four Times Square 2001 M Street NW, 10th Floor New York, NY 10036 6 Washington, DC 20036 Telephone: (212) 735-3000 Telephone: (202) 847-4000 Facsimile (212) 735-2000 7 Facsimile: (202) 847-4005 8 Patrick Hammon (SBN 255047) 9 SKADDEN ARPS SLATE MEAGHER & FLOM LLP 10 Sean Eskovitz (SBN 241877) 525 University Avenue, Suite 1100 WILKINSON WALSH + ESKOVITZ LLP Palo Alto, California 94301 11 11726 San Vicente Blvd., Suite 600 Telephone: (650) 470-4500 Los Angeles, CA 90049 Facsimile: (650) 470-4570 12 Telephone: (424) 316-4000 Facsimile: (202) 847-4005 13 Attorneys for Defendant NATIONAL COLLEGIATE 14 ATHLETIC ASSOCIATION Attorneys for Defendant 15 NATIONAL COLLEGIATE ATHLETIC ASSOCIATION 16 17 18 19 20 21 22 23 24 25 26 27 28 7 DEFS.' OPPOSITION TO PLAINTIFFS' REQUEST FOR ADD'L REBUTTAL MDL No. 4:14-md-02541-CW EXPERT TESTIMONY 2 1 PROSKAUER ROSE LLP MAYER BROWN LLP 2 By: /s/ Bart H. Williams By: /s/ Britt M. Miller Bart H. Williams (SBN 134009) Andrew S. Rosenman (SBN 253764) 3 Scott P. Cooper (SBN 96905) Britt M. Miller (pro hac vice) Kyle A. Casazza (SBN 254061) 71 South Wacker Drive 4 Jennifer L. Jones (SBN 284624) Chicago, IL 60606 Shawn S. Ledingham, Jr. (SBN 275268) Telephone: (312) 782-0600 5 Jacquelyn N. Crawley (SBN 287798) Facsimile: (312) 701-7711 2049 Century Park East, Suite 3200 6 Los Angeles, CA 90067 Telephone: (310) 557-2900 7 Facsimile: (310) 557-2193 Richard J. Favretto (pro hac vice) 1999 K Street, N.W. 8 Washington, DC 20006 Telephone: (202) 263-3000 9 Facsimile: (202) 263-3300 10 Attorneys for Defendant 11 Attorneys for Defendant THE BIG TEN CONFERENCE, INC. PAC-12 CONFERENCE 12 POLSINELLI PC ROBINSON BRADSHAW & HINSON 13 14 By: /s/ Leane K. Capps By: /s/ Robert W. Fuller Leane K. Capps (pro hac vice) Robert W. Fuller, III (pro hac vice) 15 Caitlin J. Morgan (pro hac vice) Nathan C. Chase Jr. (SBN 247526) 2950 N. Harwood Street Lawrence C. Moore, III (pro hac vice) 16 Suite 2100 Pearlynn G. Houck (pro hac vice) Dallas, TX 75201 Amanda R. Pickens (pro hac vice) 17 Telephone: (214) 397-0030 101 N. Tryon St., Suite 1900 Charlotte, NC 28246 18 Telephone: (704) 377-2536 Facsimile: (704) 378-4000 19 Amy D. Fitts (pro hac vice) Mit Winter (SBN 238515) 20 120 W. 12th Street Kansas City, MO 64105 21 Telephone: (816) 218-1255 22 Mark J. Seifert (SBN 217054) Seifert Law Firm 23 Wesley D. Hurst (SBN 127564) 425 Market Street, Suite 2200 2049 Century Park East, Suite 2300 San Francisco, CA 94105 24 Los Angeles, CA 90067 Telephone: (415) 999-0901 Telephone: (310) 556-1801 Facsimile: (415) 901-1123 25 26 Attorneys for Defendants Attorneys for Defendant THE BIG 12 CONFERENCE, INC. and SOUTHEASTERN CONFERENCE 27 CONFERENCE USA, INC. 28 8 DEFS.' OPPOSITION TO PLAINTIFFS' REQUEST FOR ADD'L REBUTTAL MDL No. 4:14-md-02541-CW EXPERT TESTIMONY 2 1 SMITH MOORE LEATHERWOOD LLP COVINGTON & BURLING LLP 2 By: /s/ D. Erik Albright By: /s/ Benjamin C. Block 3 D. Erik Albright (pro hac vice) Benjamin C. Block (pro hac vice) Gregory G. Holland (pro hac vice) One CityCenter 4 300 North Greene Street, Suite 1400 850 Tenth Street, N.W. Greensboro, NC 27401 Washington, DC 20001-4956 5 Telephone: (336) 378-5368 Telephone: (202) 662-5205 Facsimile: (336) 433-7402 Facsimile: (202) 778-5205 6 7 Rebecca A. Jacobs (SBN 294430) Jonathan P. Heyl (pro hac vice) One Front Street 8 101 N. Tryon Street, Suite 1300 San Francisco, CA 94111-5356 Charlotte, NC 28246 Telephone: (415) 591-6000 9 Telephone: (704) 384-2625 Facsimile: (415) 591-6091 Facsimile: (704) 384-2909 10 Attorneys for Defendant 11 Charles LaGrange Coleman, III (SBN AMERICAN ATHLETIC 65496) CONFERENCE 12 HOLLAND & KNIGHT LLP 50 California Street, Suite 2800 13 San Francisco, CA 94111-4624 Telephone: (415) 743-6900 14 Facsimile: (415) 743-6910 15 Attorneys for Defendant 16 THE ATLANTIC COAST CONFERENCE 17 WALTER HAVERFIELD LLP BRYAN CAVE LLP 18 By: /s/ R. Todd Hunt By: /s/ Meryl Macklin 19 R. Todd Hunt (pro hac vice) Meryl Macklin (SBN 115053) Benjamin G. Chojnacki (pro hac vice) 560 Mission Street, 25th Floor 20 The Tower at Erieview San Francisco, CA 94105 1301 E. 9th Street, Suite 3500 Telephone: (415) 268-1981 21 Cleveland, OH 44114-1821 Facsimile: (415) 430-4381 Telephone: (216) 928-2935 22 Facsimile: (216) 916-2372 Richard Young (pro hac vice) 23 Brent Rychener (pro hac vice) 90 South Cascade Avenue, Suite 1300 24 Attorneys for Defendant Colorado Springs, CO 80903 MID-AMERICAN CONFERENCE Telephone: (719) 473-3800 25 Facsimile: (719) 633-1518 26 27 Attorneys for Defendant MOUNTAIN WEST CONFERENCE 28 9 DEFS.' OPPOSITION TO PLAINTIFFS' REQUEST FOR ADD'L REBUTTAL MDL No. 4:14-md-02541-CW EXPERT TESTIMONY 2 1 JONES WALKER LLP 2 By: /s/ Mark A. Cunningham Mark A. Cunningham (pro hac vice) 3 201 St. Charles Avenue New Orleans, LA 70170-5100 4 Telephone: (504) 582-8536 Facsimile: (504) 589-8536 5 6 Attorneys for Defendant SUN BELT CONFERENCE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 DEFS.' OPPOSITION TO PLAINTIFFS' REQUEST FOR ADD'L REBUTTAL MDL No. 4:14-md-02541-CW EXPERT TESTIMONY 2 1 FILER'S ATTESTATION 2 I, Bart H. Williams, am the ECF user whose identification and password are being used to 3 file the Defendants' Opposition to Plaintiffs' Request for Additional Rebuttal Expert Testimony. 4 In compliance with Local Rule 5-1(i)(3), I hereby attest that all signatories hereto concur in this 5 filing. 6 /s/ Bart H. Williams 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 DEFS.' OPPOSITION TO PLAINTIFFS' REQUEST FOR ADD'L REBUTTAL MDL No. 4:14-md-02541-CW EXPERT TESTIMONY