UNITED STATES
`INTERNATIONAL TRADE COMMISSION
`
`___________________________________
`
`In the Matter of: ) Investigation No.
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`CERTAIN FITNESS DEVICES, STREAMING ) 337-TA-1265
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`COMPONENTS THEREOF, AND SYSTEMS )
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`CONTAINING SAME )
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`___________________________________
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`Pages:
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`Place:
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`Date:
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`559 through 681 (with excerpts)
`Washington, D.C.
`March 14, 2022
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`OPEN SESSIONS
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`HERITAGE REPORTING CORPORATION
`Official Reporters
`1220 L Street, N.W., Suite 206
`Washington, D.C. 20005
`(202) 628-4888
`contracts@hrccourtreporters.com
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`WAG, Exhibit 2013
`Amazon.com, Inc. v. WAG Acquisition, LLC, IPR2022-01433
`Page 1 of 121
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` 559
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` 1 UNITED STATES INTERNATIONAL TRADE COMMISSION
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` 2 Washington, D.C.
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` 3 BEFORE THE HONORABLE DAVID S. SHAW
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` 4 Administrative Law Judge
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` 5 ___________________________________
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` 6 In the Matter of: ) Investigation No.
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` 7 CERTAIN FITNESS DEVICES, STREAMING ) 337-TA-1265
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` 8 COMPONENTS THEREOF, AND SYSTEMS )
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` 9 CONTAINING SAME )
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` 10 ___________________________________
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` 11
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` 12 Remote Hearing
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` 13
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` 14 International Trade Commission
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` 15 500 E Street, S.W.
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` 16 Washington, D.C.
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` 17
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` 18 MONDAY, MARCH 14, 2022
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` 19
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` 20 EVIDENTIARY HEARING - VOLUME III
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` 21
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` 22 The Hearing commenced remotely, pursuant to the
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` 23 notice of the Judge, at 10:00 a.m. EDT.
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` 24
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` 25 Reported by: Karen Brynteson, FAPR, RMR, CRR
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`Heritage Reporting Corporation
`(202) 628-4888
`
`WAG, Exhibit 2013
`Amazon.com, Inc. v. WAG Acquisition, LLC, IPR2022-01433
`Page 2 of 121
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` 560
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` 1 APPEARANCES:
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` 2 ** All parties appearing remotely **
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` 3
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` 4 For Complainants DISH DBS Corporation, DISH
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` 5 Technologies L.L.C., and Sling TV L.L.C.:
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` 6 LISA M. KATTAN, ESQ.
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` 7 JAMIE R. LYNN, ESQ.
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` 8 THOMAS C. MARTIN, ESQ.
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` 9 SAMUEL L. KASSA, ESQ.
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` 10 LAUREN J. DREYER, ESQ.
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` 11 ANDREW WILSON, ESQ.
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` 12 EILEEN HYDE, ESQ.
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` 13 SARAH HASSAN, ESQ.
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` 14 Baker Botts L.L.P.
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` 15 700 K Street, N.W.
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` 16 Washington, D.C. 20001
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` 17
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` 18 G. HOPKINS GUY, III, ESQ.
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` 19 Baker Botts L.L.P.
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` 20 1001 Page Mill Road
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` 21 Building One, Suite 200
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` 22 Palo Alto, CA 94304
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` 23
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` 24
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` 25
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`Heritage Reporting Corporation
`(202) 628-4888
`
`WAG, Exhibit 2013
`Amazon.com, Inc. v. WAG Acquisition, LLC, IPR2022-01433
`Page 3 of 121
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` 561
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` 1 APPEARANCES (Continued):
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` 2
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` 3 For Complainants DISH DBS Corporation, DISH
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` 4 Technologies L.L.C., and Sling TV L.L.C.:
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` 5 ALI DHANANI, ESQ.
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` 6 BRADLEY BOWLING, ESQ.
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` 7 THOMAS B. CARTER, JR., ESQ.
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` 8 STEVE MAULE, ESQ.
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` 9 Baker Botts L.L.P.
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` 10 One Shell Plaza
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` 11 Houston, TX 77002
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` 12
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` 13 KURT PANKRATZ, ESQ.
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` 14 NOLAN McQUEEN, ESQ.
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` 15 Baker Botts L.L.P.
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` 16 2001 Ross Avenue, Suite 900
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` 17 Dallas, TX 75201
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` 18
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`Heritage Reporting Corporation
`(202) 628-4888
`
`WAG, Exhibit 2013
`Amazon.com, Inc. v. WAG Acquisition, LLC, IPR2022-01433
`Page 4 of 121
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` 562
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` 1 APPEARANCES (Continued):
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` 2 For Respondents iFIT, Inc., f/k/a ICON Health &
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` 3 Fitness, Inc.; FreeMotion Fitness, Inc.; and NordicTrack,
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` 4 Inc.:
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` 5 DAVID R. WRIGHT, ESQ.
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` 6 JARED J. BRAITHWAITE, ESQ.
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` 7 TAYLOR J. WRIGHT, ESQ.
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` 8 LIANE M. PETERSON, ESQ.
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` 9 Foley & Lardner LLP
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` 10 136 S. Main Street, Suite 400
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` 11 Salt Lake City, UT 84101
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` 12
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` 13 ANDREW M. GROSS, ESQ.
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` 14 Foley & Lardner
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` 15 321 North Clark Street, Suite 3000
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` 16 Chicago, IL 60654
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` 17
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` 18
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` 19
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`Heritage Reporting Corporation
`(202) 628-4888
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`WAG, Exhibit 2013
`Amazon.com, Inc. v. WAG Acquisition, LLC, IPR2022-01433
`Page 5 of 121
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` 563
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` 1 APPEARANCES (Continued):
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` 2 For Respondent Peloton Interactive, Inc.:
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` 3 JOSH A. KREVITT, ESQ.
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` 4 ALLEN KATHIR, ESQ.
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` 5 Gibson, Dunn & Crutcher LLP
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` 6 200 Park Avenue, 47th Floor
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` 7 New York, NY 10166
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` 8
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` 9 Y. ERNEST HSIN, ESQ.
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` 10 Gibson, Dunn & Crutcher LLP
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` 11 555 Mission Street
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` 12 San Francisco, CA 94105
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` 13
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` 14 BRIAN M. BUROKER, ESQ.
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` 15 SHUO JOSH ZHANG, ESQ.
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` 16 Gibson, Dunn & Crutcher LLP
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` 17 1050 Connecticut Avenue, N.W.
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` 18 Washington, D.C. 20036
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` 19
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` 20 RYAN K. IWAHASHI, ESQ.
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` 21 STUART ROSENBERG, ESQ.
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` 22 Gibson, Dunn & Crutcher LLP
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` 23 1881 Page Mill Road
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` 24 Palo Alto, CA 94304
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` 25
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`Heritage Reporting Corporation
`(202) 628-4888
`
`WAG, Exhibit 2013
`Amazon.com, Inc. v. WAG Acquisition, LLC, IPR2022-01433
`Page 6 of 121
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` 564
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` 1 APPEARANCES (Continued):
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` 2 For Respondent Peloton Interactive, Inc.:
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` 3 JENNIFER RHO, ESQ.
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` 4 Gibson, Dunn & Crutcher LLP
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` 5 333 South Grand Avenue
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` 6 Los Angeles, CA 90071
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` 7
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` 8 EMILY WHITCHER, ESQ.
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` 9 NICK BARBA, ESQ.
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` 10 Gibson, Dunn & Crutcher LLP
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` 11 3161 Michelson Drive
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` 12 Irvine, CA 92612
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` 13
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` 14 For Respondent lululemon athletica inc., and
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` 15 Curiouser Products Inc. (d/b/a MIRROR):
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` 16 STEPHEN R. SMITH, ESQ.
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` 17 PHILIP E. MORTON, ESQ.
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` 18 EMILY E. TERRELL, ESQ.
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` 19 NAINA SONI, ESQ.
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` 20 Cooley LLP
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` 21 1299 Pennsylvania Avenue, N.W., Suite 700
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` 22 Washington, D.C. 20004
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` 23
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`Heritage Reporting Corporation
`(202) 628-4888
`
`WAG, Exhibit 2013
`Amazon.com, Inc. v. WAG Acquisition, LLC, IPR2022-01433
`Page 7 of 121
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` 565
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` 1 APPEARANCES (Continued):
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` 2 For Respondent lululemon athletica inc., and
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` 3 Curiouser Products Inc. (d/b/a MIRROR):
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` 4 CAMERON VANDERWALL, ESQ.
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` 5 Cooley LLP
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` 6 3175 Hanover Street
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` 7 Palo Alto, CA 94304
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` 8
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` 9 For the Office of Unfair Import Investigations:
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` 10 AARON RAUH, ESQ.
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` 11 ANNE GOALWIN, ESQ.
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` 12 U.S. International Trade Commission
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` 13 500 E Street, S.W.
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` 14 Washington, D.C. 20436
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` 15
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` 16
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` 17 ATTORNEY ADVISOR:
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` 18 JOSEPH SPEYER, Esq.
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` 19 Attorney-Advisor
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` 20 U.S. International Trade Commission
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` 21 500 E Street, S.W.
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` 22 Washington, D.C. 20436
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` 23
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`Heritage Reporting Corporation
`(202) 628-4888
`
`WAG, Exhibit 2013
`Amazon.com, Inc. v. WAG Acquisition, LLC, IPR2022-01433
`Page 8 of 121
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` 566
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` 1 P R O C E E D I N G S
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` 2 (10:00 a.m.)
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` 3 JUDGE SHAW: Good morning. We're on the public
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` 4 record. I think the first thing to do today is just to
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` 5 talk to counsel and see what our schedule looks like. As I
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` 6 think you were all told last week, the break I wanted to
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` 7 take between 11 and 12 for a meeting isn't going to happen.
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` 8 That was postponed.
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` 9 So with that in mind, I'll just turn to counsel
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` 10 and see what's going on today.
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` 11 MS. KATTAN: Good morning, Your Honor. This is
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` 12 Lisa Kattan.
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` 13 So we have a few housekeeping issues related to
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` 14 the status of the evidence. I believe Respondents have a
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` 15 request related to the post-hearing briefing schedule,
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` 16 which I will let them address. Then we have Ms. Mulhern's
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` 17 cross-examination, she's Respondents' DI expert, and then
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` 18 Dr. Jeffay's cross-examination. He's DISH's expert. And I
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` 19 think that will conclude the hearing, subject to any --
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` 20 anything we need to close out at the end of the day.
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` 21 The parties had talked about taking a brief
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` 22 break, if Your Honor allows it, after Dr. Jeffay's
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` 23 testimony to straighten out the exhibit for today so that
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` 24 we can get those in the record today before we close out
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` 25 the session.
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`Heritage Reporting Corporation
`(202) 628-4888
`
`WAG, Exhibit 2013
`Amazon.com, Inc. v. WAG Acquisition, LLC, IPR2022-01433
`Page 9 of 121
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` 1 JUDGE SHAW: Oh, yes. I'm totally in favor of
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` 2 that.
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` 3 So, the Respondents, you've got the same
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` 4 schedule in mind?
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` 5 MR. SMITH: One -- one addition, Your Honor,
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` 6 that we'd like to clarify or argue objections to exhibits
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` 7 after Dr. Richardson's examination.
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` 8 THE REPORTER: I just want to clarify, that's
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` 9 Mr. Smith speaking, correct?
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` 10 MR. SMITH: Yes. I'm sorry, yes. Stephen Smith
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` 11 on behalf of the Respondents. Thank you.
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` 12 JUDGE SHAW: Right. Well, does that sort of
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` 13 fold into what Ms. Kattan was saying about evidentiary
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` 14 matters, state of the evidence?
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` 15 MR. SMITH: It could, Your Honor. I just didn't
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` 16 want to miss the opportunity to put a pin in it right now
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` 17 to say we're going to -- it looks like we may have some
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` 18 objections to what they're trying to move in, and we're
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` 19 trying to work it out, but I just wanted to alert Your
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` 20 Honor. Whether you wanted to handle it now or later is
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` 21 fine with us, timing-wise.
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` 22 JUDGE SHAW: Well, okay. I'll circle back to
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` 23 Ms. Kattan.
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` 24 Staff, anything to input here?
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` 25 MR. RAUH: In terms of the schedule today, Your
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`Heritage Reporting Corporation
`(202) 628-4888
`
`WAG, Exhibit 2013
`Amazon.com, Inc. v. WAG Acquisition, LLC, IPR2022-01433
`Page 10 of 121
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` 568
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` 1 Honor?
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` 2 JUDGE SHAW: Yes.
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` 3 MR. RAUH: I have nothing further to add beyond
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` 4 what the Complainants and Respondents have raised so far.
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` 5 JUDGE SHAW: Okay. So, Ms. Kattan, maybe we
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` 6 should start with the evidentiary matters, as you said. If
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` 7 it turns out we get to a few things based on what Mr. Smith
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` 8 said that we may still be working on, then we can defer
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` 9 those until later, but, you know, we may get -- we may get
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` 10 fairly far. And so we'll just do what we can upfront.
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` 11 MS. KATTAN: That sounds fine, Your Honor. I
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` 12 think, with your guidance, we should be able to resolve the
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` 13 one outstanding issue we have from last week.
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` 14 JUDGE SHAW: Okay. So evidence-wise, what can I
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` 15 do?
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` 16 MS. KATTAN: Let me turn it over to my
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` 17 colleague, Mr. Wilson, who's going to tell you what the
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` 18 status is of last week, and then I think the last thing
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` 19 we'll address is the issue that Mr. Smith raised regarding
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` 20 a few exhibits that were used during Dr. Richardson's
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` 21 examination.
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` 22 JUDGE SHAW: All right. Thank you.
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` 23 MR. WILSON: Good morning, Your Honor. This is
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` 24 Andrew Wilson for DISH.
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` 25 JUDGE SHAW: Good morning.
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`
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`
`Heritage Reporting Corporation
`(202) 628-4888
`
`WAG, Exhibit 2013
`Amazon.com, Inc. v. WAG Acquisition, LLC, IPR2022-01433
`Page 11 of 121
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` 1 MR. WILSON: So regarding -- if -- if we could
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` 2 just take it day by day, regarding hearing day one, the
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` 3 parties e-mailed lists of exhibits sponsored and the
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` 4 witness statements of witnesses that testified on
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` 5 Wednesday, hearing day one. And those lists are reflected
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` 6 in the proceeding -- in the transcripts of the proceedings
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` 7 for day two, Thursday.
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` 8 There are no objections to the exhibits listed
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` 9 there. And at this point, Your Honor, we move to have
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` 10 those exhibits entered into evidence.
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` 11 JUDGE SHAW: Oh, yes. Very well. Received.
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` 12 MR. WILSON: And that list also included -- I
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` 13 should have mentioned this -- also included exhibits
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` 14 sponsored in the deposition designations that were received
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` 15 by Your Honor by virtue of his order, of Order 22, and that
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` 16 list is also reflected in the hearing day two transcript
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` 17 proceedings at the end there.
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` 18 JUDGE SHAW: Very well.
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` 19 MR. WILSON: We would also move those into
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` 20 evidence.
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` 21 JUDGE SHAW: Yes.
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` 22 (Exhibits, as submitted by counsel and reflected
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` 23 in the attached index, were received into evidence.)
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` 24 MR. WILSON: Regarding the day two exhibits, the
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` 25 parties have agreed upon certain -- a list of certain
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`Heritage Reporting Corporation
`(202) 628-4888
`
`WAG, Exhibit 2013
`Amazon.com, Inc. v. WAG Acquisition, LLC, IPR2022-01433
`Page 12 of 121
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` 1 exhibits to which there are no objections, and those --
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` 2 those lists will be submitted today. They have not been
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` 3 submitted yet.
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` 4 There's the matter of the Richardson --
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` 5 JUDGE SHAW: Well, as to those, that's fine.
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` 6 You can view them as received and get them into the court
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` 7 reporter today, early, and they'll be indexed with the
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` 8 transcript.
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` 9 MR. WILSON: Thank you, Your Honor.
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` 10 (Exhibits, as submitted by counsel and reflected
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` 11 in the attached index, were received into evidence.)
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` 12 MS. RHO: Your Honor -- Your Honor, this is
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` 13 Jennifer Rho for Peloton, speaking on behalf of the
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` 14 Respondents.
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` 15 With respect to the exhibits that are being
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` 16 moved into evidence, we would like to clarify one thing.
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` 17 We have received the final transcript for -- for day 2 of
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` 18 the trial in which these exhibits are listed, and we do
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` 19 just want to clarify or seek -- seek correction of the
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` 20 transcript. It identifies all of the exhibits, both
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` 21 demonstratives and documentary exhibits, as being received
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` 22 and admitted into evidence.
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` 23 And we would just like to request that these
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` 24 lists be separated into the documentary exhibits that are
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` 25 received into evidence and then separately the
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`
`Heritage Reporting Corporation
`(202) 628-4888
`
`WAG, Exhibit 2013
`Amazon.com, Inc. v. WAG Acquisition, LLC, IPR2022-01433
`Page 13 of 121
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` 571
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` 1 demonstratives that are being listed for identification
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` 2 purposes only so that the transcript in this matter is
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` 3 clear.
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` 4 JUDGE SHAW: Well, if I remember correctly, we
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` 5 figured out that, you know, the reporter would give
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` 6 whatever she gets in the way of -- however they're
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` 7 organized. So if -- if they were given to her in one list,
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` 8 then, you know, then that's what she did.
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` 9 And if they were given to her in two lists or in
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` 10 two different paragraphs or something, I think the court
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` 11 reporting service just, you know, we found out, types in
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` 12 what you say.
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` 13 So I don't know if we need a corrected
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` 14 transcript, but I will clarify, as I have -- this has come
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` 15 up a lot in this case -- so that the document -- the
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` 16 demonstrative exhibits, you know, are just what they are.
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` 17 They're received into the record, but they, standing alone,
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` 18 do not have evidentiary weight. So I -- I would hope, by
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` 19 this point, that all parties would understand that.
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` 20 And, as I gave guidance during the hearing,
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` 21 you're welcome to cite to them and to reproduce them in
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` 22 your briefs, but you've always got to lead me back to the
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` 23 evidence that I can rely on and cite to the Commission when
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` 24 I'm making a finding of fact.
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` 25 So -- but, again, the demonstratives can be very
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`
`Heritage Reporting Corporation
`(202) 628-4888
`
`WAG, Exhibit 2013
`Amazon.com, Inc. v. WAG Acquisition, LLC, IPR2022-01433
`Page 14 of 121
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` 1 helpful, but standing alone, they -- they're not going to
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` 2 be treated as evidence.
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` 3 MS. RHO: Thank you, Your Honor.
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` 4 JUDGE SHAW: Thank you.
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` 5 MR. WILSON: Your Honor, if I may on that point,
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` 6 in addition, the record reflects a CDX to indicate -- to
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` 7 clearly indicate those are demonstrative exhibits, and DISH
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` 8 believes that there's no confusion as to the fact that
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` 9 those be treated as substantive evidence, that they are
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` 10 demonstratives.
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` 11 JUDGE SHAW: Yes. I think Ms. Rho someone
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` 12 looking just at the index might not see that clearly, but
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` 13 fortunately I think the only people looking at that will be
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` 14 -- well, to use bad grammar, it will be us, but -- so --
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` 15 and I think we all understand now.
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` 16 MR. WILSON: Thank you, Your Honor.
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` 17 And just -- just to finish up the strictly
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` 18 housekeeping matters, as Ms. Kattan mentioned, we -- we
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` 19 would ask for a brief recess to sort out any objections and
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` 20 -- and create lists of exhibit to be entered that were
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` 21 sponsored through the witnesses that testify today, as well
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` 22 as exhibits that come up during cross-examination of -- of
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` 23 those witnesses are moved into evidence by virtue of that.
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` 24 And at the end of that, so within that brief
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` 25 15-minute recess or so, we would be able to submit those
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`
`
`
`
`
`Heritage Reporting Corporation
`(202) 628-4888
`
`WAG, Exhibit 2013
`Amazon.com, Inc. v. WAG Acquisition, LLC, IPR2022-01433
`Page 15 of 121
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` 1 lists to the court reporter and then move those into
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` 2 evidence.
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` 3 JUDGE SHAW: Yes. That would be great. And the
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` 4 court reporter can have everything early enough in the day
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` 5 to put it in today's transcript. That sounds good.
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` 6 MR. WILSON: Thank you, Your Honor.
`
` 7 Now, returning to the day two proceedings, there
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` 8 was -- there were three exhibits, in particular, that were
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` 9 objected to. DISH has proposed a solution, and we received
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` 10 some feedback from Respondents that they were perhaps
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` 11 amenable to that solution. But DISH proposes redacting
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` 12 fully, except for the portions that were referenced in the
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` 13 -- in the cross-examination testimony of -- of
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` 14 Dr. Richardson, and submitting those as demonstrative
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` 15 exhibits so there can be no confusion they be treated as
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` 16 substantive evidence.
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` 17 JUDGE SHAW: All right. That's your proposal.
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` 18 Respondents, where do we stand?
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` 19 MR. MORTON: Yes, so, Your Honor, we understand
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` 20 also they've agreed to withdraw --
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` 21 THE REPORTER: I'm sorry, counsel, just identify
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` 22 yourself.
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` 23 MR. MORTON: Excuse me. Yes. Phillip Morton on
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` 24 behalf of Respondents. Thank you.
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` 25 So we understand that the Complainants have
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`
`Heritage Reporting Corporation
`(202) 628-4888
`
`WAG, Exhibit 2013
`Amazon.com, Inc. v. WAG Acquisition, LLC, IPR2022-01433
`Page 16 of 121
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` 574
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` 1 agreed to withdraw the underlying exhibits, CX-105, CX-1260
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` 2 and CX-1267C. They have made this proposal to provide
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` 3 redacted versions of those that would then be treated as
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` 4 CDXs.
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` 5 We -- we still don't agree with that. We are
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` 6 agreeable with them withdrawing, but we don't agree to the
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` 7 demonstratives because, you know, they made their record in
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` 8 the transcript already and that -- that's all -- that's all
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` 9 the record they need here. We don't need to also, you
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` 10 know, continue to try to put in these -- these exhibits,
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` 11 even if they're marked as demonstratives, where they're
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` 12 trying to continue to put in evidence from another case for
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` 13 substantive purposes.
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` 14 JUDGE SHAW: Does Staff have a position on this?
`
` 15 MR. RAUH: Yes, Your Honor. And just if it
`
` 16 wasn't clear, these are the three exhibits that were from
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` 17 Judge McNamara's investigation.
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` 18 JUDGE SHAW: Yes. I -- I figured, but it's good
`
` 19 to put that on the record.
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` 20 MR. RAUH: Yeah. In terms of converting them to
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` 21 demonstratives, I understand your ground rules require that
`
` 22 demonstratives cite to underlying evidence so that then I
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` 23 would agree it doesn't quite make sense.
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` 24 JUDGE SHAW: Well, you're right. I might waive
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` 25 that in order to avoid any -- you know, I think in this
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` 1 sense, they're not being used in a typical way.
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` 2 MR. RAUH: Yes.
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` 3 JUDGE SHAW: And so I -- I understand that.
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` 4 Thanks for pointing it out. But I would be willing to
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` 5 waive that requirement.
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` 6 MR. RAUH: Okay. So I understand from the
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` 7 objections the other day, and as I articulated the Staff's
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` 8 position on the record, we would object to those three
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` 9 documents being received as substantive evidence, but for
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` 10 impeachment purposes, the transcript says what it says.
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` 11 If -- if you believe altering your ground rule
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` 12 for demonstrative purposes to convert these over would be a
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` 13 solution, then I think we'd be okay with it.
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` 14 JUDGE SHAW: Well, yes. As you said, the
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` 15 record, which I think was made several times on this point,
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` 16 should by now be clear about how I feel about those
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` 17 exhibits, but they certainly were -- I guess, in the end, I
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` 18 will go with Complainant's proposal because I do think that
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` 19 having something to view when reading the record would be
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` 20 helpful, but actually I -- I may be wrong, but I don't
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` 21 think I've seen a party go so far as to convert them into
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` 22 demonstrative exhibits to make the point. I appreciate
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` 23 that. I think it gives some clarity.
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` 24 As to keeping them out in their entirety, I
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` 25 think that it would make the record hard to follow, and I
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` 1 do think that, obviously, this is going to be an issue in
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` 2 post-hearing briefing. So I think that the -- the best
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` 3 solution in front of me right now is to go with
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` 4 Complainant's proposal in this regard.
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` 5 MR. WILSON: Thank you, Your Honor. And if I
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` 6 may just seek --
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` 7 JUDGE SHAW: Yes?
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` 8 MR. WILSON: If -- if I may just seek
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` 9 clarification, it sounded like you -- you had said that
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` 10 redacting them may cause confusion. Would you prefer --
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` 11 JUDGE SHAW: No, I think that --
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` 12 MR. WILSON: -- that we do not redact them?
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` 13 JUDGE SHAW: I think that not having them in the
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` 14 record at all for people to look at while reading the
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` 15 transcript or reading the post-hearing briefs would cause
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` 16 confusion. So I think that your proposal -- I think
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` 17 Complainant's proposal as originally made to me is the way
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` 18 to go, to do redactions, mark them as CDXs, and withdraw
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` 19 the underlying evidentiary exhibits, which, as Mr. Rauh
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` 20 pointed out, would technically not be what my ground rules
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` 21 originally envisioned, but then this whole situation was
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` 22 probably not originally envisioned by my ground rules. But
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` 23 I think the parties -- at