Case 1:16-cv-00453-RGA Document 609 Filed 10/24/18 Page 1 of 15 PageID #: 49454
`
`ACCELERATION BAY LLC,
`
`
`
`
`
`ACTIVISION BLIZZARD INC.,
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`DEFENDANT’S REPLY BRIEF IN SUPPORT OF ITS MOTION
`TO PRECLUDE THE NEW DAMAGES THEORIES PLAINTIFF RAISED AT THE
`PRETRIAL CONFERENCE
`
`Plaintiff,
`
`Defendant.
`
`
`
`
`
`C.A. No. 16-453 (RGA)
`
`
`
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`Jack B. Blumenfeld (#1014)
`Stephen J. Kraftschik (#5623)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899
`(302) 658-9200
`jblumenfeld@mnat.com
`skraftschik@mnat.com
`
`Attorneys for Defendants
`
`
`
`
`
`
`
`
`
`
`v.
`
`
`
`
`
`
`
`
`OF COUNSEL:
`Michael A. Tomasulo
`Gino Cheng
`David K. Lin
`Joe S. Netikosol
`WINSTON & STRAWN LLP
`333 South Grand Avenue, 38th Floor
`Los Angeles, CA 90071
`(213) 615-1700
`
`David P. Enzminger
`Louis L. Campbell
`WINSTON & STRAWN LLP
`275 Middlefield Road, Suite 205
`Menlo Park, CA 94025
`(650) 858-6500
`
`Dan K. Webb
`Kathleen B. Barry
`Sean H. Suber
`WINSTON & STRAWN LLP
`35 West Wacker Drive
`Chicago, IL 60601
`(312) 558-5600
`
`-1--1-
`
`

`

`Case 1:16-cv-00453-RGA Document 609 Filed 10/24/18 Page 2 of 15 PageID #: 49455
`
`
`Krista M. Enns
`WINSTON & STRAWN LLP
`101 California Street, 35th Floor
`San Francisco, CA 94111
`(415) 591-1000
`
`Michael M. Murray
`WINSTON & STRAWN LLP
`200 Park Avenue,
`New York, NY 10166
`(212) 294-6700
`
`Andrew R. Sommer
`Thomas M. Dunham
`Joseph C. Masullo
`Paul N. Harold
`WINSTON & STRAWN LLP
`1700 K Street, N.W.
`Washington, DC 20006
`(202) 282-5000
`
`B. Trent Webb
`Aaron E. Hankel
`Jordan T. Bergsten
`Maxwell C. McGraw
`SHOOK HARDY & BACON LLP
`2555 Grand Boulevard
`Kansas City, MO 64108
`(816) 474-6550
`
`October 24, 2018
`
`
`
`

`

`Case 1:16-cv-00453-RGA Document 609 Filed 10/24/18 Page 3 of 15 PageID #: 49456
`
`
`
`Acceleration’s plan to ask the jury to determine a lump-sum royalty based on a series of ten-
`
`figure numbers not tied to any royalty analysis or calculation is inadmissible. No witness has
`
`testified that a royalty award would be derived from Dr. Valerdi’s figures or Activision’s revenues
`
`and profits, how such an award would be calculated, or what it would be. A plaintiff may not ask a
`
`jury to provide a damages award based on raw data, speculation or guesswork, and a plaintiff cannot
`
`offer damages evidence that is not carefully tied to an admissible royalty analysis. Damages must be
`
`based on sound economic principles and there is no authority for Acceleration’s plan.
`
`Moreover, the royalty bases Acceleration advances are themselves inadmissible. They are
`
`completely untethered to the alleged use of the patented inventions and Acceleration admittedly has
`
`no witness to tie these bases to a hypothetical negotiation between Activision and Boeing.
`
`Dr. Valerdi’s whole “analysis” turns on a fallacy—that he can reliably quantify the costs of
`
`something that Acceleration’s experts claim does not exist. Even in the current opposition,
`
`Acceleration claims a non-infringing alternative may not exist. Because he was asked to quantify
`
`something that does not exist, Dr. Valerdi used a proxy. He speculates that an alternative game
`
`would have the same number of lines of relevant code as the existing game. He then used his
`
`computer model to predict the cost of writing that volume of code. But, according to Dr. Valerdi,
`
`that volume of code is the same in both the speculative alternative and the accused games. Thus, his
`
`estimates for the alternative and the existing code would always be identical, because his computer
`
`model produces the same output for any given input. The assumption he used to “quantify” some
`
`undisclosed alternative “that may not even exist” ensures that there can never be cost savings
`
`because he assumed they are the same. And what probative value can there be in asking the jury to
`
`assume that a non-existent alternative would cost billions, if it existed? That is pure speculation.
`
`-1--1-
`
`

`

`Case 1:16-cv-00453-RGA Document 609 Filed 10/24/18 Page 4 of 15 PageID #: 49457
`
`
`
`Acceleration proposes to compare Dr. Valerdi’s numbers quantifying a speculative
`
`alternative to numbers reported by Dr. Meyer regarding the actual cost of development. But none of
`
`Acceleration’s witnesses made this comparison previously and they should not be allowed to present
`
`a new analysis on the eve of trial. Further, since Valerdi’s estimate assumes that the alternative has
`
`the same volume of relevant code as the allegedly infringing original, comparing his estimate to the
`
`development costs contained in Dr. Meyer’s report does not represent a ‘cost savings’ – it represents
`
`only the difference between the computer-generated estimated cost of developing the existing
`
`products and Meyer’s calculation of the actual development. That difference is not probative of true
`
`“cost savings,” but rather is a measure of how bloated Dr. Valerdi’s estimate is compared to the
`
`actual development costs. Similarly, Dr. Meyer’s purported “apportionment” is based exclusively on
`
`her equating the use of the term “multiplayer” in an Activision customer survey with the patented
`
`technology.1
`
`I. Acceleration ignores that a reasonable royalty must be tethered to the patented
`technology and based on sound economic principles.
`
`Acceleration identifies three cases that supposedly support its position “that a royalty rate is
`
`[not] necessary to sustain a damages award.” Opp. 1. But in each case, the expert offered both a
`
`specific, reliable calculation supported by reliable evidence and methodology.
`
`In Powell, the expert conducted a Georgia Pacific analysis and arrived at a range of per-unit
`
`royalty rates. The Federal Circuit found the range and the jury’s ultimate determination were both
`
`supported by substantial evidence. Powell v. Home Depot USA Inc., 663 F.3d 1221, 1239-41 (Fed.
`
`Cir. 2011). The court did not authorize a finding of damages derived from a royalty base with no
`
`rate. In EMC, Plaintiff’s expert “presented a range of appropriate damages,” the defendant did “not
`
`1 Acceleration admits there is no apportionment to WoW. Opp. 15 & n.2. Now, it says it will
`apply the CoD apportionment to WoW. But no testimony supports that. Dr. Meyer provided no
`apportionment.
`
`2
`
`

`

`Case 1:16-cv-00453-RGA Document 609 Filed 10/24/18 Page 5 of 15 PageID #: 49458
`
`
`
`take issue with the methodology,” and the Court found “no reason” to consider them unreliable.
`
`EMC Corp. v. Pure Storage, Inc., 154 F. Supp. 3d 81, 119 (D. Del. 2016). In Summit, the plaintiff’s
`
`expert calculated a specific rate of $0.28 per phone, which the Federal Circuit found “was based on
`
`reliable principles and was sufficiently tied to the facts of the case.” Summit 6, LLC v. Samsung
`
`Elecs. Co., 802 F.3d 1283, 1296–1300 (Fed. Cir. 2015).
`
`Acceleration’s attempts to distinguish Exmark fail. A royalty may be a lump sum or a rate
`
`multiplied by a base. Regardless, the royalty must be “carefully tied” to the alleged infringement.
`
`Having found that expert testimony must be tied to a specific proposed royalty rate, 879 F.3d at
`
`1349–51, Exmark prohibits an expert offering Georgia Pacific analysis that is not tied to any royalty.
`
`Acceleration’s plan to offer a base but no rate does not “sufficiently tie” the alleged infringement to
`
`a royalty. ResQNet.com, Inc. v. Lansa, Inc., 594 F.3d 860, 869 (Fed. Cir. 2010).
`
`Similarly, Acceleration still has not taken a position or presented any evidence as to the
`
`hypothetical negotiation date. “[T]he correct determination of the hypothetical negotiation date is
`
`essential for properly assessing damages.” LaserDynamics, 694 F.3d at 75, 76 (emphasis added).
`
`But Dr. Meyer has no opinion, and Acceleration’s technical experts never considered the issue.
`
`Without evidence to support the hypothetical negotiation date, Acceleration cannot meet its burden
`
`to prove damages. Acceleration’s position is essentially that it can make its damages presentation fit
`
`whatever hypothetical negotiation Activision or the Court chooses.
`
`Plaintiff has identified no case where a jury was presented merely with a royalty base but no
`
`rate or damages calculation. And this is not surprising. The patentee bears the burden of proving
`
`damages with reasonable (though not mathematical) certainty. Lucent Techs., Inc. v. Gateway, Inc.,
`
`580 F.3d 1301, 1324 (Fed. Cir. 2009). Plaintiff’s plan to present merely a royalty base and invite the
`
`3
`
`

`

`Case 1:16-cv-00453-RGA Document 609 Filed 10/24/18 Page 6 of 15 PageID #: 49459
`
`
`
`jury to calculate a reasonable royalty based on the numbers that is provided is impermissible and can
`
`only lead to an award based on “speculation or guesswork.” Id. at 1309.
`
`II. Dr. Valerdi’s estimates are not a cost savings analysis, and there is no evidence
`they would have been considered in a hypothetical negotiation.
`
`A cost savings analysis determines how much the alleged infringer saved by using the
`
`infringing functionality rather than a non-infringing alternative. When the Federal Circuit has
`
`approved a cost savings analysis as a measure of damages, it has done so only when the patentee
`
`offered admissible evidence showing (1) a reliable method for calculating cost savings from use of
`
`the patented invention compared to a non-infringing alternative; and (2) reliable evidence that the
`
`parties would have agreed that a specific portion of those cost savings would form the royalty.
`
`Hanson v. Alpine Valley Ski Area, Inc., 718 F.2d 1075, 1077 (Fed. Cir. 1983) (“Applying [Georgia -
`
`Pacific] … the magistrate concluded that the reasonable royalty in this case must be based upon a
`
`portion of the annual cost savings attributable to use of the Hanson patent.”); Prism Techs. LLC v.
`
`Sprint Spectrum L.P., 849 F.3d 1360, 1378 (Fed. Cir. 2017).
`
`Plaintiff has no admissible evidence on either point. As to the first point, neither Dr. Valerdi
`
`nor Dr. Meyer calculate a cost savings, and no Acceleration expert has testified why it would have
`
`cost any more at all to build a non-infringing alternative. Dr. Valerdi assumed they are the same.
`
`Second, unlike Prism, where the damages expert “testified that the parties would have valued the []
`
`patents based on Sprint’s expected cost savings” (849 F.3d at 1378), Dr. Meyer admits that the
`
`speculated alternative is not “economically viable” and that the parties would not have relied on Dr.
`
`Valerdi’s estimates to value the patents. Meyer Rpt. (D.I. 444, Ex. C-3) at ¶57.
`
`A “cost savings” analysis in a patent case must be based on a simple formula: The cost of
`
`using non-infringing functionality minus the cost of using the patented functionality equals cost
`
`savings. But Acceleration does not identify any non-infringing alternative, let alone explain why the
`
`4
`
`

`

`Case 1:16-cv-00453-RGA Document 609 Filed 10/24/18 Page 7 of 15 PageID #: 49460
`
`
`
`non-infringing alternative would cost more than the accused products. In fact, according to
`
`Acceleration, “there are no viable non-infringing alternatives.” D.I. 444, Ex. C-2 (“Valerdi Rpt.”) at
`
`3. Unlike the two cost-savings cases on which Acceleration relies, here the purported cost savings
`
`expert has not identified any specific, available non-infringing alternative, let alone the cost for
`
`implementing such a technology. Prism Techs., 849 F.3d at 1377 (cost of alternatives such as a
`
`“premium ‘Cadillac’ backhaul” and “a less-expensive ‘Chevy’ backhaul”); Powell, 663 F.3d at 1239
`
`(cost of “replac[ing] radial saws”). Dr. Valerdi’s calculation of an alternative that he speculates
`
`would have the same volume of code as accused games is inadmissible.
`
`Having failed to identify the supposed non-infringing alternative, Acceleration speculates
`
`that it might be possible to get around the patents by re-writing the entire game. But even if that were
`
`true, Acceleration has no opinion as why it would cost any more to write the new code. In fact,
`
`Acceleration speculates that the redesigned games would have the exact same lines of code as the
`
`original games (Opp. 5), so there would have been no additional costs at all. Dr. Valerdi himself
`
`confirms this. Acceleration does not dispute that by using Dr. Valerdi’s software, “the same inputs
`
`(project characteristics) w[ill] generate the same outputs (cost and schedule).” Valerdi Report (D.I.
`
`444, Ex. C-2) at 4; Ex. 3, Valerdi Dep. Tr. 68:25–69:13. Yet Dr. Valerdi took the numbers of the
`
`lines of code for “the entire game” and sought to estimate “the cost of developing the software as is.”
`
`See Ex. 3, Valerdi Dep. Tr. 100:6–11, 152:18. That is the basic fallacy of Dr. Valerdi’s approach.
`
`There is no evidence at all that the supposedly redesigned games would cost any more than the
`
`original development costs.
`
`Acceleration also has not made any effort to show that the speculative non-infringing
`
`alternative is an any way tied to the patented features. Acceleration contends “the scope of his cost-
`
`estimate was ‘just the networking code.’” Opp. 5. This is incorrect. Dr. Valerdi never inspected the
`
`5
`
`

`

`Case 1:16-cv-00453-RGA Document 609 Filed 10/24/18 Page 8 of 15 PageID #: 49461
`
`
`
`actual source code computer, but instead relied on conversations with Dr. Medvidovic.2 Dr.
`
`Medvidovic counted the total files and communicated those total file numbers to Dr. Valerdi, and
`
`Dr. Valerdi used those exact numbers, without reduction, for his estimates. At his deposition, Dr.
`
`Valerdi confirmed he made no reduction from these numbers because Dr. Medvidovic told him to
`
`include “a hundred percent” of the code in his estimate because “a hundred percent” met some vague
`
`standard of being “related to … or impacted by network functionality.” Ex. 3, Valerdi Dep. Tr.
`
`109:9–12. Neither Dr. Valerdi nor any other Acceleration witness provides any explanation for why
`
`the graphics, game engine, animation, third party tools or other source code files unrelated to
`
`networking functions would be “impacted by networking functionality.” Thus, his billion-dollar
`
`estimates are not an estimate of rewriting the accused infringing networking code; they are an
`
`estimate for rewriting the entire code of the accused products from scratch.3
`
`Further, most claims “dropped out,” and Dr. Valerdi’s estimate did not change—“suggesting
`
`that [it] was never tied to the specific patents at issue.” Apple, 757 F.3d at 1325 n.5.
`
`That Dr. Valerdi included millions of lines of code having nothing to do with networking is
`
`clear from his analysis. Acceleration’s technical experts printed and cite to less than five thousand
`
`pages of code containing less than one hundred thousand lines of code across all of the accused
`
`products. Acceleration’s infringement contentions are based only on the printed and cited code.
`
`Though Acceleration contends that Dr. Valerdi based his analysis on “the source code print outs
`
`
`2 Dr. Valerdi did not know what features are associated with the patented technology, see, e.g.,
`Ex. 3, Valerdi Dep. Tr. 119:3–9, 133:3–16, and he did not know and “was not interested in how
`[the developers] would re-architect or what part of the game would need to be re-architected,” id.
`at 97:19–98:15. Dr. Valerdi did not offer an analysis of the costs saved related to the accused
`functionality or a patent-by-patent apportionment.
`3 Tellingly, Dr. Valerdi’s cost estimates for re-writing what Acceleration purports to be only the
`networking code are multiples higher than the actual costs for the development and marketing of the
`accused games.
`
`6
`
`

`

`Case 1:16-cv-00453-RGA Document 609 Filed 10/24/18 Page 9 of 15 PageID #: 49462
`
`
`
`available to him,” his analysis estimates the cost of rewriting millions of lines of code. Valerdi
`
`Report (D.I. 444, Ex. C-2) at 12–13.
`
`Because Dr. Valerdi never compared costs, Acceleration now plans to offer “guidance” from
`
`Dr. Meyer comparing “the development costs” listed in a “table” in her report and “Dr. Valerdi’s
`
`cost-savings calculations to rebuild the infringing network.” Opp. 8 (citing D.I. 480, Ex. 69 at
`
`Exhibits 4E, 5). Not only was this not in either expert report, but Dr. Meyer admitted in deposition
`
`that is not “a valid comparison.” Ex. 6, Meyer Dep. Tr. at 31:6–32:3. She testified that her numbers
`
`do not reflect all the development costs incurred by Activision. Id.
`
`
`
`Fourth, Acceleration advances no evidence that Dr. Valerdi’s estimates would have been the
`
`basis for a reasonable royalty. Dr. Meyer disclaimed reliance on them as a basis to value the patents
`
`and merely used them to argue that non-infringing alternatives would not be “economically viable.”
`
`Meyer Report (D.I. 444, Ex. C-3) at ¶57. An alternative that is not “economically viable” is no
`
`alternative at all, and it is irrelevant because “[t]he economic relationship between the patented
`
`method and non-infringing alternative methods, of necessity, would limit the hypothetical
`
`negotiation.” Riles v. Shell Expl. & Prod. Co., 298 F.3d 1302, 1312 (Fed. Cir. 2002).
`
`
`
`Acceleration also has no evidence how the parties to a hypothetical negotiation would have
`
`considered Dr. Valerdi’s estimates, or how they would have arrived at a royalty based on Dr.
`
`Valerdi’s estimates. Acceleration claims that the Federal Circuit “approv[ed] a cost-savings based
`
`verdict that was not based on a royalty rate” in Powell. Opp. 1. Not so. In Powell, the patentee’s
`
`expert conducted a Georgia Pacific analysis that was in part based on cost savings and arrived at a
`
`reliable range of “per unit” royalty rates. 663 F.3d at 1239. Plaintiff has no expert opinion or
`
`admissible evidence on a range of per unit royalty rates.
`
`Neither Dr. Valerdi nor Dr. Meyer can provide any opinion sufficient to tie these estimates to
`
`7
`
`

`

`Case 1:16-cv-00453-RGA Document 609 Filed 10/24/18 Page 10 of 15 PageID #: 49463
`
`
`
`a hypothetical negotiation, because neither provides any opinion in their report as to the appropriate
`
`date of the negotiation or the appropriate parties to the negotiation. Without such evidence, his
`
`estimates are irrelevant. This is not merely academic; it has significant consequences in view of
`
`Acceleration’s most recent position that Activision would only have to rearchitect its code once. If
`
`the supposed rearchitecting took place on the eve of alleged infringement in 2004 (as a proper
`
`analysis requires), Dr. Valerdi’s cost estimates would be apportioned over the next 15 years and
`
`across dozens of products not at issue in this litigation. The rearchitecting costs attributable to the
`
`games at issue here would therefor shrink by orders of magnitude.
`
`Finally, Acceleration argues that Activision should not “get multiple bites at the apple” over
`
`the admissibility of Dr. Valerdi’s estimates. Opp. 7. During the Daubert briefing, Activision
`
`challenged the reliability of Dr. Valerdi’s model because Dr. Valerdi does not know how the model
`
`compares to the actual games. Here, we point out that Dr. Valerdi’s opinion are inadmissible
`
`regardless of the reliability of his model. Further, Acceleration was not offering Dr. Valerdi’s
`
`estimates as a cost savings opinion or as a measure of damages. It is Acceleration that is serially
`
`presenting “new damages theories” as each successive theory is found inadmissible. Ex. 1 (Pretrial
`
`Conf. Tr.) at 109:7–11. The issue here is the admissibility of a new “fact-based” damages theory
`
`that was not challenged at Daubert because it was not advanced until the Pretrial Conference. This
`
`is Activision’s first opportunity to challenge the admissibility of Acceleration’s latest theory.
`
`III. Acceleration has failed to show that any of its royalty bases have been properly
`apportioned.
`
`Acceleration’s opposition demonstrates that it failed to apportion do a proper apportionment
`
`even though the Federal Circuit has held that “only theories comporting with settled principles of
`
`apportionment” should be allowed to reach the jury. Virnetx, Inc. v. Cisco Sys., Inc., 767 F.3d 1308,
`
`1328 (Fed. Cir. 2014). Recognizing that it has no apportionment for World of Warcraft at all,
`
`8
`
`

`

`Case 1:16-cv-00453-RGA Document 609 Filed 10/24/18 Page 11 of 15 PageID #: 49464
`
`
`
`Acceleration now states it will “apportion World of Warcraft in the same manner [as the other
`
`products], as the apportionment of the other games are appropriate proxy for the value of the
`
`technology.” Opp. 15 & n.2. There is no expert report on that. WoW and CoD involve different
`
`patents and different products.
`
`And, Dr. Meyer’s purported user or unit apportionment for Call of Duty and Destiny based
`
`on a Call of Duty survey is itself not proper. Moreover, this new apportionment is based on a single
`
`consumer survey about a completely different game: Call of Duty. See Mot. 12. No witness,
`
`documents, or evidence supports using Call of Duty as a basis to apportion World of Warcraft.
`
`Certainly, nothing in the Call of Duty survey shows supports that the accused functionality in World
`
`of Warcraft is “the sole driver of customer demand.” Power Integrations, 904 F.3d at 979. The
`
`games are different, the asserted patents are different, and Dr. Meyer herself has not offered any
`
`supplemental expert report. Now is too late. In its opening brief, Activision identified errors with
`
`the apportionment, including: (1) the reduction of asserted patents from six to two with no change to
`
`the apportioned value; (2) Dr. Meyer’s use of a single Call of Duty survey as the basis for her
`
`apportionment; and (3) the lack of evidence that the Call of Duty survey results apply to Destiny
`
`(and now World of Warcraft). Tellingly, Acceleration fails to respond to these errors.
`
`At most, Acceleration responds to the argument “multiplayer” cannot be used as proxy for
`
`the patented functionality. Opp. 15–16. But Dr. Meyer’s use of the term “multiplayer” is not the
`
`issue. What matters is how Activision’s survey used the term “multiplayer” and how survey
`
`respondents understood the term “multiplayer.” Acceleration has no evidence that Activision used
`
`the term “multiplayer” to refer to the patents in a product survey that predated Activision’s
`
`knowledge of the patents. Even more implausible is that the respondents to the survey somehow
`
`associated the term “multiplayer” with the patents. Needless to say, nothing in Activision’s survey
`
`9
`
`

`

`Case 1:16-cv-00453-RGA Document 609 Filed 10/24/18 Page 12 of 15 PageID #: 49465
`
`
`
`referred to the patents-in-suit or the specific features they allegedly cover.
`
`Next, Acceleration provides no citations to Dr. Meyer’s report where she allegedly
`
`apportioned revenue. Acceleration cannot provide any such citations because, while Dr. Meyer
`
`apportioned users or units, she did not apportion revenue. Acceleration now seeks to graft this
`
`apportionment of users and units to revenues and profits without any supporting analysis or opinion
`
`in Dr. Meyer’s report. Acceleration cannot present new opinions on the eve of trial.
`
`Procedurally, the Court has not rejected Activision’s apportionment arguments; it found them
`
`moot after it struck Dr. Meyer’s sole reasonable royalty calculation. D.I. 578 at 30. Nevertheless,
`
`the Court added that any royalty base presented would have to be “properly apportioned.” Id.
`
`Acceleration has failed to do so.
`
`IV. The prejudice to Activision warrants exclusion.
`
`Acceleration claims that these “fact-based” damages theories were disclosed long ago, but at
`
`no time during discovery did it disclose a damages theory whereby multi-billion dollar royalty bases
`
`disassociated from any royalty calculation would be presented to the jury. Every theory
`
`Acceleration has offered has been excluded and Acceleration admits that it intends to keep offering
`
`“new theories” up to and, presumably, during trial. Ex. 1 (Pretrial Conf. Tr.) at 109:7–11. The
`
`Court should not permit federal litigation to become a game of whack-a-mole.
`
`As demonstrated above, Acceleration’s latest damages theories are inadmissible but even if
`
`they were admissible, Fed. R. Evid. 403 would preclude them. There is no greater prejudice to a
`
`patent defendant than allowing a plaintiff to throw billion dollar figures in front of a jury. Whatever
`
`theoretical probative value that these unbound billion dollar figures could provide is far outweighed
`
`by the extreme prejudice to Activision and the undeniable skew that would result.
`
`10
`
`

`

`Case 1:16-cv-00453-RGA Document 609 Filed 10/24/18 Page 13 of 15 PageID #: 49466
`
`
`
`
`
`
`
`
`
`
`OF COUNSEL:
`Michael A. Tomasulo
`Gino Cheng
`David K. Lin
`Joe S. Netikosol
`WINSTON & STRAWN LLP
`333 South Grand Avenue, 38th Floor
`Los Angeles, CA 90071
`(213) 615-1700
`
`David P. Enzminger
`Louis L. Campbell
`WINSTON & STRAWN LLP
`275 Middlefield Road, Suite 205
`Menlo Park, CA 94025
`(650) 858-6500
`
`Dan K. Webb
`Kathleen B. Barry
`Sean H. Suber
`WINSTON & STRAWN LLP
`35 West Wacker Drive
`Chicago, IL 60601
`(312) 558-5600
`
`Krista M. Enns
`WINSTON & STRAWN LLP
`101 California Street, 35th Floor
`San Francisco, CA 94111
`(415) 591-1000
`
`Michael M. Murray
`Anup K. Misra
`WINSTON & STRAWN LLP
`200 Park Avenue,
`New York, NY 10166
`(212) 294-6700
`
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`
`/s/ Jack B. Blumenfeld
`__________________________________
`Jack B. Blumenfeld (#1014)
`Stephen J. Kraftschik (#5623)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899
`(302) 658-9200
`jblumenfeld@mnat.com
`skraftschik@mnat.com
`
`Attorneys for Defendants
`
`
`11
`
`

`

`Case 1:16-cv-00453-RGA Document 609 Filed 10/24/18 Page 14 of 15 PageID #: 49467
`
`
`
`
`Andrew R. Sommer
`Thomas M. Dunham
`Joseph C. Masullo
`Paul N. Harold
`WINSTON & STRAWN LLP
`1700 K Street, N.W.
`Washington, DC 20006
`(202) 282-5000
`
`B. Trent Webb
`Aaron E. Hankel
`Jordan T. Bergsten
`Maxwell C. McGraw
`SHOOK HARDY & BACON LLP
`2555 Grand Boulevard
`Kansas City, MO 64108
`(816) 474-6550
`
`October 24, 2018
`
`12
`
`

`

`Case 1:16-cv-00453-RGA Document 609 Filed 10/24/18 Page 15 of 15 PageID #: 49468
`
`
`
`
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on October 24, 2018, I caused the foregoing to be electronically filed
`
`with the Clerk of the Court using CM/ECF, which will send notification of such filing to all
`
`registered participants.
`
`
`
`I further certify that I caused copies of the foregoing document to be served on October 24,
`
`2018, upon the following in the manner indicated:
`
`VIA ELECTRONIC MAIL
`
`VIA ELECTRONIC MAIL
`
`VIA ELECTRONIC MAIL
`
`/s/ Jack B. Blumenfeld
`________________________________
`Jack B. Blumenfeld (#1014)
`
`Philip A. Rovner, Esquire
`Jonathan A. Choa, Esquire
`POTTER ANDERSON & CORROON LLP
`1313 North Market Street, 6th Floor
`Wilmington, DE 19801
`Attorneys for Plaintiff
`
`Paul J. Andre, Esquire
`Lisa Kobialka, Esquire
`James R. Hannah, Esquire
`Hannah Lee, Esquire
`Yuridia Caire, Esquire
`Greg Proctor, Esquire
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Attorneys for Plaintiff
`
`Aaron M. Frankel, Esquire
`Marcus A. Colucci, Esquire
`Cristina Martinez, Esquire
`Shannon H. Hedvat, Esquire
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`1177 Avenue of the Americas
`New York, NY 10036
`Attorneys for Plaintiff
`
`
`
`
` 
`
`-1--1-
`
`