john kingston (pro hac vice thompson coburn llp

Hearing Date and Time: 12/18/2019 at 10:00 a.m. Objection Deadline: 12/11/2019 at 4:00 p.m.

John Kingston (pro hac vice) Michael Nepple (pro hac vice) Brian Hockett (pro hac vice) THOMPSON COBURN LLP One US Bank Plaza St. Louis, MO 63101 Telephone: (314) 552-6000 Facsimile: (314) 552-7000

Counsel for Defendants Charter Communications, Inc. and Charter Communications Operating, LLC

IN THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

) In re: ) Chapter 11

) WINDSTREAM HOLDINGS, INC., et al., ) Case No. 19-22312 (RDD)

) Debtors. ) (Jointly Administered)

) )

WINDSTREAM HOLDINGS, INC., et al., ) )

Plaintiffs, ) Adv. Pro. No. 19-08246 )

vs. ) )

CHARTER COMMUNICATIONS, INC. and ) CHARTER COMMUNICATIONS OPERATING, ) LLC, )

) Defendants. )

)

DEFENDANTS CHARTER COMMUNICATIONS, INC. AND CHARTER COMMUNICATIONS OPERATING, LLC’S EX-PARTE

MOTION TO SEAL DOCUMENTS FILED IN CONNECTION WITH THEIR MOTION TO EXCLUDE THE TESTIMONY OF JOHN C. JAROSZ

19-08246-rdd Doc 118 Filed 11/15/19 Entered 11/15/19 18:18:23 Main Document Pg 1 of 5

¨1¤|7,3+/ &(«

1922312191115000000000006

Docket #0118 Date Filed: 11/15/2019

Pursuant to 11 U.S.C. § 107(b), 11 U.S.C. §§ 101 et seq., Rule 9018 of the

Federal Rules of Bankruptcy Procedure, and Rule 9018-1 of the Local Rules of the

United States Bankruptcy Court for the Southern District of New York, Charter

Communications, Inc. and Charter Communications Operating, LLC (Charter) move

to file under seal portions of its Memorandum in Support of Its Motion to Exclude the

Testimony of John C. Jarosz, as well a select number of supporting exhibits. In

support, Charter states:

JURISDICTION AND VENUE

1. The Court currently has jurisdiction under 28 U.S.C. § 1334 and the

Amended Standing Order of Reference from the United States District Court for the

Southern District of New York, dated February 1, 2012.

2. Venue is proper in this district pursuant to 28 U.S.C. § 1409.

3. The bases for the relief requested herein are sections 105(a) and 107(b)

of the Bankruptcy Code, Bankruptcy Rule 9018, and Local Rule 9077-1(b).

GROUNDS FOR RELIEF

4. Charter moves to file under seal portions of its Memorandum in Support

of its Motion to Exclude the Testimony of John C. Jarosz, as well as a select number

of the following supporting exhibits—slip sheets or redacted copies of which have

been attached hereto:

a. Exhibit 1 (SEALED)

b. Exhibit 4 (SEALED)

c. Exhibit 5 (SEALED)


d. Exhibit 11 (UNREDATED COPY SEALED)

e. Exhibit 12 (SEALED)

f. Exhibit 13 (UNREDACTED COPY SEALED)

g. Exhibit 15 (SEALED)

5. The information and/or documents sought to be filed under seal have

been designated as either CONFIDENTIAL or CONFIDENTIAL – ATTORNEYS’

EYES ONLY pursuant to the parties’ Confidentiality Agreement and Stipulated

Protective Order (ECF 74) or involve confidential subject matter derived from such

documents.

6. Section 107(b) of the Bankruptcy Code authorizes courts to issue orders

that will protect entities from the potential harm that may result from the disclosure

of certain confidential information. This section provides, in part:

(b) On request of a party in interest, the bankruptcy court shall, and on

the bankruptcy court’s own motion, the bankruptcy court may—

(1) protect an entity with respect to a trade secret or confidential

research, development, or commercial information…

11 U.S.C. § 107(b)(1).

7. Bankruptcy Rule 9018 further provides, in part:

On motion or on its own initiative, with or without notice, the court may

make any order which justice requires (1) to protect the estate or any

entity in respect of a trade secret or other confidential research,

development, or commercial information . . . .

Fed. R. Bankr. P. 9018.

8. Unless this motion to seal is withdrawn, the documents sought to be sealed by

this motion should be sealed for the duration of this matter pursuant to the parties’


protective order. Charter will retrieve the documents from the Court at the conclusion

of this matter and dispose of the materials in compliance with all applicable

protective orders.

9. The people that will have access to the sealed and unredacted documents are

Charter, Windstream, the Court, the U.S. Trustee, and counsel for the Official

Committee of Unsecured Creditors.

10.Charter has made no prior request for the relief sought herein to this or any

other court.

WHEREFORE, Charter respectfully requests that the Court enter an order,

substantially in the form attached hereto and grant such other and further relief as

is just and appropriate under the circumstances.

Dated: November 15, 2019 Respectfully submitted,

THOMPSON COBURN LLP

By: /s/ John Kingston

John Kingston (pro hac vice) Michael Nepple (pro hac vice) Brian Hockett (pro hac vice) THOMPSON COBURN LLP One U.S. Bank Plaza, Suite 2700 St. Louis, MO 63101 314-552-6000 314-552-7000 (fax) [email protected] [email protected] [email protected]

Attorneys for Defendants Charter Communications, Inc. and Charter Communications Operating, LLC


CERTIFICATE OF SERVICE

I hereby certify that on this 15th day of November, 2019, I served a true and correct copy of Defendants Charter Communications, Inc. and Charter Communications Operating, LLC’s Motion to File Under Seal Documents Filed in Connection with Their Motion Exclude the Testimony of John C. Jarosz via operation of the Court’s Electronic Filing System upon all counsel of record in the adversary proceeding.

Undersigned counsel further certifies that on this 15th day of November, 2019, a true and correct copy of Defendants Charter Communications, Inc. and Charter Communications Operating, LLC’s Motion to File Under Seal Documents Filed in Connection with Their Motion Exclude the Testimony of John C. Jarosz will be sent via United States Mail, postage prepaid, to the following:

Terence P. Ross Kristin Lockhart Michael R. Justus 2900 K Street NW North Tower – Suite 200 Washington, DC 20007-5118

Shaya Rochester Katten Muchin Rosenman LLP 575 Madison Avenue New York, NY 10022-2585

United States Trustee ATTN: Paul K. Schwartzburg and Serene Nakano U.S. Department of Justice Office of the United States Trustee 201 Varick Street, Rm. 1006 New York, NY 10014

Steve Rappoport Morrison & Foerster LLP 250 West 55th Street New York, NY 10019-9601

/s/ John Kingston






) )



vs. ) )


) Defendants. )

)

ORDER GRANTING DEFENDANTS’ EX-PARTE MOTION TO SEAL DOCUMENTS FILED IN CONNECTION WITH THEIR

MOTION TO EXCLUDE THE TESTIMONY OF JOHN C. JAROSZ

Upon consideration of Charter Communications, Inc. and Charter Communications

Operating, LLC’s (“Charter”) Ex-Parte Motion to Seal Documents Filed in Connection with Their

Motion to Exclude the Testimony of John C. Jarosz the motion is hereby GRANTED.

This Order is without prejudice to the rights of any party in interest or the United States

Trustee for the Southern District of New York to seek to declassify and make public any portion

of the material filed under seal.

19-08246-rdd Doc 118-1 Filed 11/15/19 Entered 11/15/19 18:18:23 Proposed Order Pg 1 of 2

- 2 -

Charter is to dispose of all sealed documents and confidential information at the conclusion

of this matter.

Dated: _________________, 2019

United States Bankruptcy Judge

19-08246-rdd Doc 118-1 Filed 11/15/19 Entered 11/15/19 18:18:23 Proposed Order Pg 2 of 2

Hearing Date and Time: 12/18/2019 at 10:00 a.m. Objection Deadline: 12/11/2019 at 4:00 p.m.

John Kingston (pro hac vice) Michael Nepple (pro hac vice) Brian Hockett (pro hac vice) THOMPSON COBURN LLP One US Bank Plaza St. Louis, MO 63101 Telephone: (314) 552-6000 Facsimile: (314) 552-7000

Counsel for Defendants Charter Communications, Inc. and Charter Communications Operating, LLC





) )



vs. ) )


) Defendants. )

)

DEFENDANTS CHARTER COMMUNICATIONS, INC. AND CHARTER COMMUNICATIONS OPERATING, LLC’S

MEMORANDUM IN SUPPORT OF MOTION TO EXCLUDE THE TESTIMONY OF JOHN C. JAROSZ

19-08246-rdd Doc 118-2 Filed 11/15/19 Entered 11/15/19 18:18:23 Redacted Memorandum in Support of Motion to Exclude Testimony of J. Jarosz Pg 1 of 35

i

TABLE OF CONTENTS

PAGE

INTRODUCTION .......................................................................................................... 1

BACKGROUND ............................................................................................................. 2

A. Mr. Jarosz’s conclusory and unsupported assertions regarding causation ................................................................................................... 3

B. Mr. Jarosz’s rehashing of out-of-court statements by Windstream employees related to undisclosed non-expert damage computations ..... 4

C. Mr. Jarosz’s lost profit opinion based on the alleged “difference in the difference” between customer churn rates in 2018 and 2019 ................. 4

1. Mr. Jarosz’s opinion depends on the assumption that he was given a reliable estimate of Windstream subscribers for whom that Charter and Windstream compete ........................................ 7

2. Mr. Jarosz depends on the incorrect assumption that Charter and Windstream only compete in .................................. 8

3. Mr. Jarosz depends on the reliability of the assumption that the historical difference in churn rates between his “test group” and “control group” stayed .................................. 9

4. Mr. Jarosz depends on an untestable opinion that the Charter Advertisement affected customer decisions for ...... 10

5. Mr. Jarosz incorrectly assumes Charter offered no services in 2019 that were not offered in early 2018 .................................... 11

6. Mr. Jarosz assumes third party competition is evenly distributed between the “test group” and “control group.” ........ 11

7. Mr. Jarosz assumes Windstream Holdings, Inc. lost subscribers and revenue, when in fact Windstream Holdings, Inc. does not have any subscribers ................................................................... 13

LEGAL STANDARD .................................................................................................... 13

ARGUMENT ................................................................................................................ 14


ii

I. Mr. Jarosz’s “lost profit” opinion is not admissible because it is not based on his own alleged expertise and is not based on the reliable application of his chosen methodology to reliable data. .................................. 15

A. Because Mr. Jarosz did not attempt to verify the expert opinions of undisclosed witnesses regarding the number and location of Windstream subscribers for whom Windstream and Charter compete, his lost profit opinion is inadmissible .................................................... 15

B. Mr. Jarosz’s opinion is unreliable because the time frame he used for his observation purports to be based on the opinions of undisclosed expert witnesses ..................................................................................... 17

C. Mr. Jarosz’s necessary assumption, that the difference in churn rates between the test group and control group , is disproved by his own data. .................................................................... 19

D. Mr. Jarosz’s foundational assumption that the Charter Advertisement is the only thing that could have had an incremental impact on Windstream’s churn rate is demonstrably unreliable .......................... 21

II. Mr. Jarosz should be prohibited from testifying about corrective advertising and promotional costs because he has not disclosed expert opinions on those topics and was not designated as a fact witness ................ 23

III. Mr. Jarosz is not qualified to opine on causation and his methodology is unreliable ....................................................................................................... 24

A. Mr. Jarosz’s expertise as an economist does not qualify him to opine on causation in a false advertising case ..................................................... 25

B. Mr. Jarosz’s methodology is inconsistent with generally accepted practices .................................................................................................. 25

CONCLUSION ............................................................................................................. 28


iii

TABLE OF AUTHORITIES

Page(s)

Cases

Abbott Biotechnology Ltd. v. Centocor Ortho Biotech, Inc., No. 09-cv-40089-FDS, 2014 WL 7330777 (D. Mass. Dec. 19, 2014) ................................ 11, 22

Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d 256 (2d Cir. 2002) ............... 2, 14

Cartwright v. Home Depot U.S.A., Inc., 936 F. Supp. 900 (M.D. Fla. 1996) ........................................................................................................................ 26

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).................................... 1, 25

Forte v. Liquidnet Holdings, Inc., 675 Fed. Appx. 21 (2d Cir. 2017) ................... 16, 18

Gary Price Studios, Inc. v. Randolph Rose Collection, Inc., No. 03-cv-969-CSH, 2006 WL 1319543 (S.D.N.Y. May 11, 2006) ........................................... 2

Haggerty v. Upjohn Co., 950 F. Supp. 1160 (S.D. Fla. 1996) ..................................... 26

In re Fosamax Prods. Liability Litig., 645 F. Supp. 2d 164 (S.D.N.Y. 2009) .................................................................................................................. 14, 28

In re M/V MSC Flaminia, No. 12-cv-8892-KBF, 2017 WL 3208598 (S.D.N.Y. July 28, 2017) ......................................................................................... 25

Lamarr-Arruz v. CVS Pharmacy, Inc., No. 15-CV-04261 (JGK), 2017 WL 4277188 (S.D.N.Y. Sept. 26, 2017) .............................................................. 1, 21

Macaluso v. Herman Miller, Inc., No. 01-cv-11496-JGK, 2005 WL 563169 (S.D.N.Y. Mar. 10, 2005) ....................................................................... 1, 21

Malletier v. Dooney & Bourke, Inc., 525 F. Supp. 2d 558 (S.D.N.Y. 2007) ........................................................................................................ 1, 15, 16, 18

Quiles v. Bradford-White Corp., 2012 WL 1355262 (N.D.N.Y. Apr. 18, 2012) ........................................................................................................................ 16

Sharkey v. J.P. Morgan Chase & Co., 978 F. Supp. 2d 250 (S.D.N.Y. 2013) ........................................................................................................................ 24

Tagatz v. Marquette Univ., 861 F.2d 1040 (7th Cir. 1988) ........................................ 23


iv

Toshiba Corp. v. Imation Corp., No. 9-cv-305-SLC, 2013 WL 7157854 (W.D. Wisc. Apr. 5, 2013) ....................................................................................... 23

United States v. Williams, 506 F.3d 151 (2d Cir. 2007) ............................................. 13

Rules

Federal Rule of Civil Procedure 26(a) ....................................................................... 1, 7

Federal Rule of Evidence 403 ............................................................................ 1, 14, 28

Federal Rule of Evidence 702 ............................................................................... passim

Other Authorities

Manual for Complex Litigation, Fourth (2004) .......................................................... 26

Michael J. Saks, et al., Ann. Reference Manual on Sci. Evid. 83 (2d ed.) ................. 21

Shari Seidman Diamond and Jerre B. Swann, Trademark and Deceptive Advertising Surveys (2012). ................................................................... 27


1

INTRODUCTION

Defendants Charter Communications, Inc. and Charter Communications

Operating, LLC (Charter) respectfully submit this Memorandum of Law in support

of their Motion pursuant to Rules 702 and 403 of the Federal Rules of Evidence to

exclude the testimony and opinions of Debtors’ putative expert, John. C. Jarosz.

According to his disclosure statement, Mr. Jarosz’s proposes to testify

regarding alleged lost profits, alleged promotional and corrective advertising costs,

and causation. See Exhibit 1, Expert Report of John C. Jarosz.

Mr. Jarosz’s proposed lost profit testimony is inadmissible under Rule 702,

Rule 403 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) because

(1) he repeats without analysis the opinions of other experts that have not been

disclosed under Federal Rule of Civil Procedure 26(a) or made available for

deposition, see Malletier v. Dooney & Bourke, Inc., 525 F. Supp. 2d 558, 665–66

(S.D.N.Y. 2007) (expert’s reliance on an underlying expert opinion is improper where

opposing party has no chance to depose the underlying expert);

(2) he relies on speculative and/or demonstrably false assumptions, see

Macaluso v. Herman Miller, Inc., No. 01-cv-11496-JGK, 2005 WL 563169, at *8

(S.D.N.Y. Mar. 10, 2005) (expert testimony excluded under Daubert “because it is

based on incorrect factual assumptions that render all of his subsequent conclusions

purely speculative”); and

(3) he makes no effort to control for confounding variables in his analysis, see

Lamarr-Arruz v. CVS Pharmacy, Inc., No. 15-CV-04261 (JGK), 2017 WL 4277188, at

*10 (S.D.N.Y. Sept. 26, 2017) (excluding expert testimony based on statistical


2

analysis that failed to account for “confounding variables”) (citing Wills v. Merada

Hess Corp., 379 F.3d 32, 50 (2d Cir. 2004)).

Mr. Jarosz’s proposed testimony on promotional costs and the cost of corrective

advertising is likewise inadmissible under Rule 702 because it is not based on any

specialized knowledge and instead would “simply parrot” unverified hearsay

statements of Windstream employees. Gary Price Studios, Inc. v. Randolph Rose

Collection, Inc., No. 03-cv-969-CSH, 2006 WL 1319543, at *8 (S.D.N.Y. May 11, 2006)

(precluding expert testimony that just repeated the plaintiff’s claims).

Mr. Jarosz’s proposed causation testimony is also inadmissible because it does

not rely on his own specialized knowledge or the application of reliable methods to

reliable facts and data. Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d 256, 266

(2d Cir. 2002) (holding that any step that renders the analysis unreliable under the

Daubert factors renders the expert’s testimony inadmissible).

BACKGROUND

In March 2019, Charter sent a direct mail advertisement referencing

Windstream’s bankruptcy to people in 22 states in geographic areas where Charter

and Windstream both compete for business (the Charter Advertisement). See Exhibit

2, Deposition of M. Kardos, 97:11-15, 170:2-171:7. Windstream contends the Charter

Advertisement was false and misleading and is seeking damages related to certain

alleged costs and allegedly lost residential internet subscribers.

Windstream’s residential internet subscribers customers must call

Windstream to terminate service. See Exhibit 3, Windstream’s Response to Request

to Admit 30.


3

1 See Exhibit 4 (Windstream Dep. Tr. at 148:7-

19).

See Exhibit 5 (samples of alleged call transcripts).

It has

instead turned to indirect evidence in the form of opinion testimony.

Windstream disclosed John C. Jarosz, an economist whose specialty is

intellectual property valuation and monetary relief, as an expert witness. Mr.

Jarosz’s expert disclosure reflects an intent to opine on causation, lost profits, and

other damages allegedly asserted by the Windstream employees with whom he spoke.

See Exhibit 1.

A. Mr. Jarosz’s conclusory and unsupported assertions regarding causation.

According to Mr. Jarosz,

See Exhibit 1, at ¶ 42.

1 Windstream Holdings, Inc. is a holding company. It has no subscribers. The term “Windstream” is used for convenience throughout this memorandum because none of the 205 Debtor companies that have sued Charter have actually disclosed whether or not they have any customers now or whether or not they had any customers (much less, how many) before the Charter Advertisement was mailed.


4

Id. at ¶¶ 42-46.

B. Mr. Jarosz’s rehashing of out-of-court statements by Windstream employees related to undisclosed non-expert damage computations.

Without offering an opinion or analysis,

Id. at ¶ 74. Likewise without opinion or analysis,

Id. at ¶ 75.

C. Mr. Jarosz’s lost profit opinion based on the alleged “difference in the difference” between customer churn rates in 2018 and 2019.

2 See Ex. 1 at ¶ 98.

Voluntary churn reflects a provider’s disconnection of customers for, e.g., failing to pay bills, move churn reflects disconnection of customers that change their residence, and involuntary churn reflects customers deciding to leave for non-moving reasons. See Ex. 2 at 61:24 – 62:4, 63:7-12. Mr. Jarsoz had no idea that there were different kinds of churn, and made no effort to limit his analysis to the involuntary churn that would reflect the customer decisions he claims to measure. See Exhibit 6, Deposition of John C. Jarosz at 62:17 – 64:17.


5

Id. at ¶ 60.

3 Where the difference between two groups

with respect to a given metric is historically static, a “difference in the difference”

analysis can potentially measure the impact of a new variable added to one of the two

groups. For example, if (1) a given company’s sales were consistently 10% higher in

Connecticut than its sales in New York from 2015 through 2017, and (2) that 10%

difference increased to 15% after a new product was introduced in Connecticut in

2018, then (3) the 5% difference in the previously-static 10% difference between

Connecticut and New York sales could potentially be attributable to reactions to the

new product in Connecticut. For the purposes of observing a natural experiment to

determine the impact of the new product, consumers in New York would be the

“control group” and consumers in Connecticut would be the “test group.” Like any

statistical analysis, a difference in the difference study depends on reliable

assumptions and carefully controlling for confounding variables.

3 see Exhibit 1, but did admit that he purported to perform such an observation during

his deposition. See Ex. 6 at 80:8-14.


6

Id. at ¶ 53.

Id.

Id. at ¶ 60. See also

Exhibit 6, Deposition of J. Jarosz, 82:17 – 84:11.

See Ex. 1, at ¶ 60.

Id.; see also Ex. 6 at 78:22-

79:16.

Ex. 1 at ¶¶ 60-61.

See id. at ¶ 61, Tab 5.


7

Mr. Jarosz’s opinion depends on a number of foundational assumptions.

1. Mr. Jarosz’s opinion depends on the assumption that he was given a reliable estimate of Windstream subscribers for whom that Charter and Windstream compete.

Mr. Jarosz depends on the assumption that Windstream’s subscribers have

been accurately divided into a reliable “test group” and a reliable “control group.” See

Ex. 6 at 27:4 – 28:1. If the test group and control group are not accurately identified

(e.g., if the test group includes a significant number of subscribers that actually

belong in the control group), it would be impossible to draw a reliable conclusion by

observing changes in the difference between churn rates in the two groups. See Ex.

6 at 86:14 – 87:8 (admitting that including people in the test group that should have

been in the control group would cause Mr. Jarosz to question the methodology).

Id. at 27:11 – 28:1. He simply assumed the opinion was

accurate. See id. Windstream has not disclosed a witness pursuant to Rule 26(a) to

provide an opinion as to the accuracy of the division of its subscribers into

See Exhibit 7 (Windstream’s Second

Supplemental Rule 26(a) Initial Disclosures).

The assumption that Charter and Windstream compete for

Windstream subscribers is contrary to both the uncontroverted opinion testimony of

Charter’s non-retained expert witness, Matthew Kardos, and the objective market

share reports of an independent third party with no interest in this litigation. See Ex.


8

2 at 8:18-23, 9:13-19, 14:10-16, 20:6-18, 32:21 – 33:21, 34:13 – 35:18, 42:05-15, 44:4-

7, 45:9-19 and Exhibit 8 (M. Kardos Dep. Ex. 12). Therefore, Windstream has roughly

130,000 subscribers in the “test group” that should be in the control group.

See Ex. 1, compare Tab 5 (

) with Tab 9

2. Mr. Jarosz depends on the incorrect assumption that Charter and Windstream only compete in 12 states.

Id. at ¶ 13, n. 21. He likewise assumed that the Charter

Advertisement was only mailed into 12 states.4 If that assumption is incorrect, Mr.

Jarosz’s natural experiment is unreliable because his “control group” includes

Windstream subscribers that should be in his “test group.” See Ex. 6 at 86:14 – 87:8.

In fact, Charter and Windstream compete in 22 states. See Ex. 2 at 170:21 – 171:7,

176:3-16 and Exhibit 9 (M. Kardos Deposition Exhibit 13). The Charter

Advertisement was mailed into those 22 states.5 See id.

4 See Ex. 6 at 72:01-19 (“Q: So, is it fair that one of the implicit assumptions underpinning your expert opinions as reflected in the expert report is that Charter and Windstream do not compete in Tennessee, Indiana, Michigan, Louisiana, Wisconsin, Virginia, and Colorado? A: Yes, I think that is a fair statement. At least not to the best of my knowledge.”) 5 Windstream has the information it needs to identify the actual Windstream subscribers that might have received the Charter Advertisement. It has its own customer mailing lists. It has the complete mailing list for the Charter Advertisement. And it can cross check the mailing lists against each other to identify potential recipients. Windstream suggested it


9

3. Mr. Jarosz depends on the reliability of the assumption that the historical difference in churn rates between his “test group” and “control group” stayed at a constant

For such difference-in-the-difference analysis to be available, the difference in

the churn rates between Mr. Jarosz’s test group and control group must have

remained “static”

See Ex. 1 at ¶¶ 57-60. See also Ex. 6 at 82:17 – 84:11. The requirement

of a constant or static difference between the two groups is called a common trend

assumption or parallel trend assumption. According to the statistical authority on

which Mr. Jarosz’s relied, failure of the common trend assumption is fatal to a

difference in a difference analysis. See Joshua D. Angrist and Jorn-Steffen Pischke,

Mostly Harmless Econometrics: An Empiricist’s Companion (2009), p. 231 (stating

that because the data revealed substantial year-to-year variations in the two groups’

trends, the control group would not provide a good counterfactual measure for a

difference-in-difference analysis).

See Ex. 1, Tab 5.

Id.

performed this exercise on June 3, 2019, but has never produced the results. See Exhibit 10, S. Rochester June 3, 2019 Email Chain.


10

Id. at ¶ 60.

Id. at Tab 5.

4. Mr. Jarosz depends on an untestable opinion that the Charter Advertisement affected customer decisions for

See id. at ¶ 56, n. 110.

Mr. Jarosz did not opine independently on the appropriate time frame for observing

the impact of direct mail advertising. Id. Instead, he purported to rely on the opinions

of two professors and a doctoral candidate from Rotterdam, who had published an

article analyzing charitable direct mailings from three large charity organizations in

the Netherlands. See id. (describing Mr. Jarosz’s reliance on Van Diepen, Merel, Bas

Donkers, and Philip Hans Franses, “Dynamic and Competitive Effects of Direct

Mailings: A Charitable Giving Application,” Journal of Marketing Research, Vol. 46,

No. 1 (2009)). Windstream did not disclose Mr. Van Diepen, Professor Donkers, or

Professor Franses as expert witnesses. The assumption that is the

proper time fame for analyzing the impact of a single direct mail piece is contrary to

the uncontroverted opinions of two experts that Charter has disclosed and made

available for deposition.


11

5. Mr. Jarosz incorrectly assumes Charter offered no services in 2019 that were not offered in early 2018.

Mr. Jarosz assumed that Charter did not offer any new services in 2019 that

might be attractive to Windstream subscriber. See Ex. 6 at 46:6-10, 47:5-9, and 56:10-

19. If Charter offered new services in 2019,

Accord Abbott Biotechnology Ltd. v. Centocor Ortho Biotech, Inc., No. 09-

cv-40089-FDS, 2014 WL 7330777, at *16 (D. Mass. Dec. 19, 2014) (excluding Mr.

Jarosz’s opinion for improperly assuming that 100% of the defendant’s sales resulted

in infringement). In fact, in 2019 Charter has been offering and aggressively

promoting a bundled mobile telephone service called Spectrum Mobile. See Ex. 2 at

67:11 – 69:4. Because Spectrum Mobile is only available to internet subscribers,

Windstream’s internet subscribers would have to switch Charter internet to purchase

Spectrum Mobile. Id. Spectrum Mobile was not available in March, April, or May of

2018 and was not widely marketed or promoted through August of 2018. Id. at 173:13

- 24.

6. Mr. Jarosz assumes third party competition is evenly distributed between the “test group” and “control group.”

Mr. Jarosz assumed that any new services or marketing plans offered by third

party competitors other than Charter (e.g., AT&T) would be evenly distributed across

all 1,400 of the exchanges in which Windstream has subscribers. See Ex. 6 at 46:11

– 48:21, 49:20 – 51:7.


12

Mr. Jarosz did not attempt to independently verify the

improbable assumption that third-party competition was evenly distributed across

all 1,421 Windstream exchanges. See id. at 46:11 – 48:21.

See Ex. 2 at 161:12 – 164:19 and Exhibit 11 (Oct. 21, 2019

email from K. Lockhart).

Given the substantial costs related to upgrading facilities to provide faster and

more reliable internet service (i.e., to sell a more competitive product) and marketing

costs, third party competitors tend to gravitate to more densely populated areas (all

else equal, facilities-based providers like AT&T would prefer to sell internet service

to 50 residents of a single apartment building than 50 households spread out across

a rural township). See Ex. 2 at 163:10 – 164:19. The uncontroverted evidence is that

third parties increased their service offerings and deployed new promotions in the

geographic area in which Charter and Windstream compete. See id. at 70:5 – 73:18,

90:21 – 92:6; see also Ex. 6 at 96:2 – 97:6.

See Exhibit 12 (J. Jarosz Dep. Ex. 4) and Ex. 6 at 96:2 -97:18.6

6 After obtaining a Windstream “call note” referring to a third party competitor’s “false advertising” regarding Windstream’s bankruptcy, Charter served requests for production


13

7. Mr. Jarosz assumes Windstream Holdings, Inc. lost subscribers and revenue, when in fact Windstream Holdings, Inc. does not have any subscribers.

Mr. Jarosz testified that he only performed an analysis to determine the

number of subscribers Windstream Holdings, Inc. purportedly lost as a result of the

Charter Advertisement. See Ex. 6 at 95:9-15. He conceded that he could not state

with reasonable certainty the number of subscribers lost by any of the 204 other

companies that have sued Charter for damage in this lawsuit. See id. According to

the sworn declaration of the Chief Executive Officer of Windstream Holdings, Inc.,

however, Windstream Holdings, Inc. does not have any subscribers. See Case No. 19-

22312, Dkt. No. 27 (that Windstream Holdings, Inc. is a discrete corporate entity from

its subsidiaries and that some unarticulated number of those subsidiaries, as opposed

to Windstream Holdings, Inc., have roughly 1.4 million subscribers).

LEGAL STANDARD

Federal Rule of Evidence 702 prohibits the introduction of putative expert

opinion testimony unless it is (1) based on the putative expert’s own “scientific,

technical, or other specialized knowledge”; (2) based on “sufficient facts or data”; (3)

based on “reliable principles and methods”; and (4) based on the reliable application

of those principles and methods to facts of the case. As the proponent of the subject

testimony, Windstream has the burden of establishing that Mr. Jarosz’s testimony

meets the requirements of Rule 702. See United States v. Williams, 506 F.3d 151,

seeking all call notes referencing “bankruptcy” in order to ascertain the scope of other bankruptcy-related advertising direct to Windstream subscribers. Windstream refused to provide the information requested.


14

160 (2d Cir. 2007). Failure to satisfy the standard mandates “exclusion of that

unreliable opinion testimony.” Amorgianos, 303 F.3d at 266.

Like all evidence, opinion testimony should be excluded under Rule 403 if its

“probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues or misleading the jury.” In re Fosamax Prods. Liability Litig.,

645 F. Supp. 2d 164, 172 (S.D.N.Y. 2009).

ARGUMENT

Windstream must establish that Rules 702 and 403 of the Federal Rules of

Evidence are satisfied with respect to Mr. Jarosz’s (a) opinion on Windstream’s

alleged lost profits; (b) repetition of Windstream hearsay statements regarding the

alleged costs of Windstream’s corrective advertising in April 2019 and promotional

campaign in September 2019; and (c) opinion as to causation. For each of these

proposed topics of testimony, this Court must “undertake a rigorous examination of

the facts on which the expert relies, the method by which the expert draws an opinion

from those facts, and how the expert applies the facts and methods to the case at

hand.” Id. Failure to satisfy any one of these requirements renders the subject

testimony inadmissible. See Amorgianos, 303 F.3d at 267-270 (instructing that all

aspects of an expert’s opinion—the methodology, the facts underlying the opinion,

and the link between the facts and the conclusion—must be reliable for the testimony

to be admissible).


15

I. Mr. Jarosz’s “lost profit” opinion is not admissible because it is not based on his own alleged expertise and is not based on the reliable application of his chosen methodology to reliable data.

Mr. Jarosz’s opinion on lost profits is inadmissible because he simply serves as

a conduit for the opinions of the undisclosed experts that he suggested provided him

with untested opinions regarding (1) the geographic areas where Windstream and

Charter compete and (2) the proper time frame for measuring the impact of direct

mail advertisements in the telecommunications industry. His purported difference

in the difference analysis is dead on arrival because the necessary “common trend

assumption” is demonstrably incorrect. And his foundational assumption that there

are no other possible causes for increased churn in 2019 is demonstrably wrong.

A. Because Mr. Jarosz did not attempt to verify the expert opinions of undisclosed witnesses regarding the number and location of Windstream subscribers for whom Windstream and Charter compete, his lost profit opinion is inadmissible.

Mr. Jarosz’s supposed natural experiment depends on a reliable division

between the “control group” and the “test group.” If the “control group” includes “test

group” subscribers or vice versa, no conclusions can reliably be drawn by comparing

the two. See Ex. 6 at 86:14 – 87:8.

Id. at 27:4 – 28:1; Ex. 1 at Tab 9.

An “expert must be in the end giving his

own opinion.” See Malletier, 525 F. Supp. 2d at 664. “He cannot simply be a conduit

for the opinion of an unproduced expert.” Id.


16

See id. (noting that reliance on

an underlying expert opinion must guarantee that the other party has the ability to

depose the underlying expert); Quiles v. Bradford-White Corp., 2012 WL 1355262, at

*7 (N.D.N.Y. Apr. 18, 2012) (same). Accord Forte v. Liquidnet Holdings, Inc., 675 Fed.

Appx. 21, 23-24 (2d Cir. 2017) (exclusion of expert testimony proper where the expert

simply inputted the numbers he was given and made no effort to independently verify

them).

See Exhibit 1, at ¶ 50

He has no idea what evidence was relied on to populate the exchanges, no

idea what methodology was used to create the document relied on, and no idea

whether the information is correct. See Ex. 6 at 27:4-28:1. During his deposition,

Charter’s expert explained the appropriate methodology, which would necessarily

start with census block information provided in mandatory disclosures to the FCC.

See Ex. 2 at 21:25 – 27:24, 54:16-24, 61:24 – 62:14, 166:8 – 167:2, 167:13 – 168:4.

Because Mr. Jarosz made no effort to follow that or any other validation methodology,

his opinion is necessarily unreliable. See e.g., Ex. 6 at 42:1-9.


17

See

Ex. 2 at 20:6-18, 32:21 – 33:21, 34:13-19, 35:10 – 36:18, 38:4-7, 38:25 – 39:18, 96:4-20,

97:23 – 98:14, 169:11 – 170:10 and Ex. 8.

See Exhibit 1, compare Tab 9 and Tab 5.

B. Mr. Jarosz’s opinion is unreliable because the time frame he used for his observation purports to be based on the opinions of undisclosed expert witnesses.

Mr. Jarosz claims no specialized knowledge regarding direct mail advertising

in the telecommunications business. See generally Ex. 1.

This assumption is material.

See Ex. 1, Tab 5.

Id.

The opinion that a direct mail advertisement would impact the behavior of

residential telecommunications customers for is contrary to the


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uncontroverted expert opinions of Matthew Kardos and Robert Borders. See Ex. 2 at

66:5 – 67:3, 80:2-22, 81:3 – 82:10, 84:23 – 85:3, 152:19-23 and Exhibit 13 (10-25-19

Expert Report of Robert Borders) (stating that the impact would last 6-8 weeks

. No disclosed expert actually holds the opinion that a commercial direct

mail advertisement will affect consumer conduct for . The opinions that

Mr. Jarosz contends support his choice of are those of the authors

of an article entitled Dynamic and Competitive Effects of Direct Mailings: A

Charitable Giving Application, describing the effect of charitable direct mailings. See

Exhibit 1, p. 31, n. 110. Windstream did not identify these authors as expert

witnesses and Charter cannot depose them. This alone warrants the exclusion of Mr.

Jarosz’s opinion. See Malletier, 525 F. Supp. 2d at 665–66 (expert’s reliance on an

underlying expert opinion is improper where deposing party has no chance to depose

the underlying expert). See also Forte, 675 Fed. Appx. at 23-24.

The only direct evidence is that the Charter Advertisement had by far its

largest impact in March and early April of 2019 and virtually no impact thereafter.

Mr. Jarosz assumes the Charter Advertisement had zero impact in March. See Ex. 6

at 73:15-21. But fifty-one percent (51%) of the telephone calls in response to the

mailer were received between March 20, 2019 and March 31, 2019. See Exhibit 14

(M. Kardos Deposition Ex. 14) and Ex. 2 at 171:24 – 172:3. Sixty-eight percent (68%)

were received before April 7, 2019. See Ex. 14. Eighty-five percent (85%) were

received before May 1, 2019. Id. And 94% were received before June 1, 2019. Id. No

calls were received in July or August. Id.


19

See Ex. 13, Attachment C. Moreover, the uncontested opinion testimony from

properly disclosed expert witnesses in this litigation is that the timeframe for reliably

evaluating the impact of a direct mail advertising in the telecommunications industry

is just six to eight weeks. See Ex 13 and Ex. 2 at 15:23 – 16:2, 66:5 – 67:3, 80:2-22,

81:3 – 82:10.

C. Mr. Jarosz’s necessary assumption, that the difference in churn rates between the test group and control group was , is disproved by his own data.

As Mr. Jarosz admits, a necessary precondition for a difference in a difference

study is that there be a parallel or common trend, so that a change in the difference

is meaningful. See Ex. 6 at 82:17 – 84:11. He agrees that this means the difference

between the measured variable—here, customer churn—must be “static” over time.


20

Id. The econometeric treatise on which Mr. Jarosz purports to rely is in accord. See

Joshua D. Angrist and Jorn-Steffen Pischke, Mostly Harmless Econometrics: An

Empiricist’s Companion (2009), p. 230 (stating that the key assumption in the

difference-in-difference methodology is that the trends would be the same absent the

variable that is being tested).

See Ex. 1, Tab 5.

The undeniable failure of the common trend requirement is fatal to Mr.

Jarosz’s difference in the difference analysis. See Alberto Abadie, Semiparametric

Difference-in-Differences Estimators 1 (The Review of Economics Studies Limited

2005) (“In particular, the conventional [difference-in-difference] estimator requires

that, in the absence of the treatment, the average outcomes for the treated and control

groups would have followed parallel paths over time.”); Michael Lachner, The

Estimation of Causal Effects by Difference-in-Difference Methods 179 (Foundations

and Trends in Econometrics Vol. 4, No. 3 2010) (“the key assumption of the

[difference-in-difference] approach is the “common trend” assumption that “if the


21

treated had not been subjected to the treatment, both subpopulations…would have

experienced the same time trends…”).

D. Mr. Jarosz’s foundational assumption that the Charter Advertisement is the only thing that could have had an incremental impact on Windstream’s churn rate is demonstrably unreliable.

An expert opinion is unreliable and inadmissible if it depends on incorrect

factual assumptions. Macaluso, 2005 WL 563169, at *8 (concluding that an expert’s

testimony must be excluded under Daubert “because it is based on incorrect factual

assumptions that render all of his subsequent conclusions purely speculative.”).

Likewise, to “be reliable, a data analysis must account for major variables, including

confounding variables.” Lamarr-Arruz, 2017 WL 4277188, at *10 (excluding expert

testimony based on statistical analysis that failed to account for “confounding

variables”); Michael J. Saks, et al., Ann. Reference Manual on Sci. Evid. 83, at *10

(2d ed.), available at 2004 WL 48151 (recognizing that observational studies—like

Mr. Jarosz’s difference in the difference analysis—can be useful when “confounding

variables are taken into account by appropriate statistical techniques”).

Here, by his own admission, the “major premise” supporting Mr. Jarosz’s entire

lost profit opinion is the assumption there are no confounding variables to correct for.

See Ex. 6 at 48:11-21, 78:22 – 79:16. That is, Mr. Jarosz admits that the “major

premise” on which his opinion relies is the assumption that only the Charter

Advertisement, and “nothing else” could have had an incremental impact on

Windstream’s churn rate where it competes with Charter. See id. at 78:22-79:16

(admitting that his conclusion can be expressed as a syllogism dependent on the


22

major premise that “nothing else had an incremental impact on Windstream’s churn

rate other than Charter’s false advertising campaign”).

See Ex. 1 at ¶ 60.

Because that assumption is demonstrably wrong, his opinion is inadmissible. Accord,

e.g., Abbott Biotechnology, 2014 WL 7330777, at *16 (excluding the opinion of John

Jarosz for improperly assuming that 100% of the defendant’s sales resulted in

infringement).

Charter’s new “Spectrum Mobile” product (mobile telephone service bundled

with internet service) was not available in March, April, or May of 2018 and was not

widely marketed in 2018. See Ex. 2 at 173:13-24. But Spectrum Mobile was widely

available and marketed throughout 2019. See id. at 67:11 – 69:4. The ability for

Windstream’s internet–only subscribers to obtain bundled internet and mobile

telephone service by switching to Charter could obviously have had an incremental

impact on Windstream’s churn where it competes with Charter.7 See Ex. 2 at 57:3-

10, 67:11 – 68:16, 68:21 – 69:10.

Likewise, significantly increased and aggressive competition from other

competitors (e.g., AT&T) focused in the geographic area where Windstream and

Charter compete could have had an incremental impact.8 See Ex. 2 at 70:5 – 74:3,

7 Jarosz admits that he did not consider this variable when attributing 100% of the churn variance to the Charter Advertisement. See Ex. 6 at 56:10 – 57:10. 8 Jarosz did nothing to determine whether other competitors in the industry were evenly represented in the Charter Exchanges and Non-Charter Exchanges. See Ex. 6 at 48:11-21.


23

77:6-23, 90:21 – 91:18, 164:6-19.

See Exhibit 12 (J. Jarosz Dep. Ex. 4). Mr. Jarosz failed to consider

the impact of that variable as well. See Ex. 6 at 97:3-6.

Mr. Jarosz’s counterfactual assumptions are fatal to his opinion. See Tagatz v.

Marquette Univ., 861 F.2d 1040, 1045 (7th Cir. 1988) (finding that the plaintiff’s data

comparing the salary raises for one group with another showed a difference but did

not provide reliable evidence that the difference was the result of a particular

attribute); Toshiba Corp. v. Imation Corp., No. 9-cv-305-SLC, 2013 WL 7157854, at

*4 (W.D. Wisc. Apr. 5, 2013) (excluding Mr. Jarosz’s expert opinion for erroneously

failing to consider key facts).

II. Mr. Jarosz should be prohibited from testifying about corrective advertising and promotional costs because he has not disclosed expert opinions on those topics and was not designated as a fact witness.

Beyond Windstream’s alleged lost profits, Mr. Jarosz also claims that

Windstream’s damages include increased costs caused by Charter’s actions,

See Ex. 1, at ¶ 8.

The evidence in this case indicates that they are not. See Ex. 2 at 164:6-19. Similarly, Jarosz did not consider whether other competitors in the Charter Exchanges offered new services in 2019. See Ex. 6 at 70:5-13. 9 Despite Charter’s request, Windstream has refused to produce actual audio recordings. Charter does not concede that Windstream’s call notes or transcripts are best evidence.


24

Id. at ¶ 72-75. “Simply rehashing evidence about which an

expert has no personal knowledge is impermissible under Rule 702.” Sharkey v. J.P.

Morgan Chase & Co., 978 F. Supp. 2d 250, 252 (S.D.N.Y. 2013) (quoting Ridge

Clearing & Outsourcing Solutions, Inc. v. Khashoggi, 2011 WL 3586468, at *2

(S.D.N.Y. Aug. 12, 2011)). Therefore, Mr. Jarosz’s opinion on Windstream’s alleged

increased costs should be excluded.

III. Mr. Jarosz is not qualified to opine on causation and his methodology is unreliable.

Rather than presuming causation and assessing damages arising therefrom,

Mr. Jarosz renders opinions on causation. See Ex. 1 at ¶ 42-46.

See id. at ¶ 42.10 Mr. Jarosz is not qualified to opine on the issue of

causation in false advertising cases. And he cannot establish that he used a reliable

methodology.

10 See also Ex. 1, at ¶ 43

; ¶ 44

.


25

A. Mr. Jarosz’s expertise as an economist does not qualify him to opine on causation in a false advertising case.

Id. at ¶ 4. This does not qualify

him to testify on causation. His CV does not reflect any special training or expertise

whatsoever that would permit him to speak on causation in a Lanham Act case, in

particular as it relates to consumer perception. Id. at Tab 1. Without more, this lack

of qualification mandates exclusion of his opinions on causation. See, e.g., In re M/V

MSC Flaminia, No. 12-cv-8892-KBF, 2017 WL 3208598, at *22-23 (S.D.N.Y. July 28,

2017) (excluding testimony based on a mismatch between the issue and the expertise

of the purported expert).

B. Mr. Jarosz’s methodology is inconsistent with generally accepted practices.

See Exhibit 1, ¶¶ 42 – 46. This mailing was sent to over 800,000 people. See Ex. 2 at

85:7-13.

Daubert identifies several factors to gauge the reliability of expert testimony,

including testing or peer review of the theory, the known (or potential) rate of error,

the use of controls, and general acceptance of the methodology in the field. See

Daubert, 509 U.S. at 590.


26

This methodology fails to satisfy any of the Daubert criteria.

See Haggerty v. Upjohn Co., 950 F. Supp. 1160, 1163-64 (S.D. Fla. 1996) (finding that

anecdotal reports are insufficient to establish causation; instead, controlled studies

are needed); Cartwright v. Home Depot U.S.A., Inc., 936 F. Supp. 900, 905 (M.D. Fla.

1996) (“case reports … are no substitute for a scientifically designed and conducted

inquiry”). Therefore, it is unreliable and must be excluded.

In order to provide probative value, the survey evidence used by the expert

should “conform to generally recognized statistical standards.” See Manual for

Complex Litigation, Fourth, §11.493 (2004). These standards include such things as

ensuring that the “sample chosen was representative of the population,” “the data

gathered were accurately reported” and the “data were analyzed in accordance with

accepted statistical principals.” Id. Further, the methodology should ensure that the

“process was conducted so as to ensure objectivity,” that the “survey was conducted

by qualified persons following proper interview procedures,” and that “the questions

asked were clear and not leading.” Id. The alleged records relied on by Mr. Jarosz

satisfy none of these principles.

See Ex. 1 at ¶¶ 42 – 46.


27

See e.g., Ex. 5.

See id.

See Exhibit 15 (sample

of Windstream call transcripts). See also id. at WIN01782

.

These flaws are described by Charter’s own expert, Dr. Henry Ostberg, who

has conducted or supervised over 3,000 consumer surveys. He notes that a properly

conducted survey can be probative, but must satisfy well-established and generally

accepted rules for conducting a properly-conducted survey. See Exhibit 16 (H. Ostberg

Expert Report), p. 11 (citing Shari Seidman Diamond and Jerre B. Swann,

Trademark and Deceptive Advertising Surveys, published by the American Bar

Association (2012), p. 177-179). Dr. Ostberg opines that the call notes/transcripts

reviewed by Mr. Jarosz “do not provide meaningful or trustworthy data.” See id. He


28

observes that the “respondents need to be selected on a pre-determined basis, and

cannot simply be individuals who decided to offer their opinions.” Id.

He also observes that “the questions must be carefully constructed

to be non-biased and non-leading, and not the result of a free-flowing conversation.

Id. at 11-12. Finally, he

notes “[a]ll the information obtained in the interview must be accurately recorded,

rather than be notes summarizing a conversation.” See id. at 12.

Left without that support, his opinions on

causation are nothing more than his say so. See In re Fosamax Prods. Liability Litig.,

645 F. Supp. 2d at 172 (nothing in Daubert or the Federal Rules of Evidence requires

the admission of opinion evidence connected to existing data only by the ipse dixit of

the expert). For these reasons, Mr. Jarosz’s causation opinions should be excluded.

CONCLUSION

Pursuant to Rules 702 and 403 of the Federal Rules of Evidence, Charter

respectfully requests that this Court exclude John C. Jarosz’s (i) opinion as to

Windstream’s alleged lost profits; (ii) opinion as to the costs of Windstream’s

corrective advertising in April 2019 and promotional campaign in September 2019;

and (iii) opinion as to causation.


29

Dated: November 15, 2019 Respectfully submitted,

THOMPSON COBURN LLP

By: /s/ John Kingston John Kingston (pro hac vice) Michael Nepple (pro hac vice) Brian Hockett (pro hac vice) THOMPSON COBURN LLP One U.S. Bank Plaza, Suite 2700 St. Louis, MO 63101 314-552-6000 314-552-7000 (fax) [email protected] [email protected] [email protected]

Attorneys for Defendants Charter Communications, Inc. and Charter Communications Operating, LLC


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CERTIFICATE OF SERVICE

I hereby certify that on this 15th day of November, 2019, I served a true and correct copy of Defendants Charter Communications, Inc. and Charter Communications Operating, LLC’s Memorandum in Support of Motion to Exclude the Testimony of John C. Jarosz via operation of the Court’s Electronic Filing System upon all counsel of record in the adversary proceeding.

Undersigned counsel further certifies that on this 15th day of November, 2019, a true and correct copy of Defendants Charter Communications, Inc. and Charter Communications Operating, LLC’s Memorandum in Support of Motion to Exclude the Testimony of John C. Jarosz will be sent via United States Mail, postage prepaid, to the following:

Terence P. Ross Kristin Lockhart Michael R. Justus 2900 K Street NW North Tower – Suite 200 Washington, DC 20007-5118

Shaya Rochester Katten Muchin Rosenman LLP 575 Madison Avenue New York, NY 10022-2585

United States Trustee ATTN: Paul K. Schwartzburg and Serene Nakano U.S. Department of Justice Office of the United States Trustee 201 Varick Street, Rm. 1006 New York, NY 10014

Steve Rappoport Morrison & Foerster LLP 250 West 55th Street New York, NY 10019-9601

/s/ John Kingston


19-08246-rdd Doc 118-3 Filed 11/15/19 Entered 11/15/19 18:18:23 Exhibit 1 Pg 1 of 1

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EXHIBIT 1 FILED UNDER SEAL


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EXHIBIT 11 UNREDACTED COPY FILED UNDER SEAL

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Przulj, Nino

From: Lockhart, Kristin <[email protected]>

Sent: Monday, October 21, 2019 5:17 PM

To: Przulj, Nino

Cc: Ross, Terence P.

Subject: Windstream v. Charter - Information from 30(b)(6) (contains AEO information)

Nino,

Please note that we are designating this information as Confidential-Attorneys Eyes Only pursuant to the parties’ stipulated agreement on confidentiality.

Thanks,

Kristin LockhartAssociate

KattenKatten Muchin Rosenman LLP 2900 K Street NW, North Tower - Suite 200 | Washington, DC 20007-5118 direct +1.202.625.3558 [email protected] | katten.com

=========================================================== CONFIDENTIALITY NOTICE: This electronic mail message and any attached files contain information intended for the exclusive use of the individual or entity to whom it is addressed and may contain information that is proprietary, privileged, confidential and/or exempt from disclosure under applicable law. If you are not the intended recipient, you are hereby notified that any viewing, copying, disclosure or distribution of this information may be subject to legal restriction or sanction. Please notify the sender, by electronic mail or telephone, of any unintended recipients and delete the original message without making any copies. =========================================================== NOTIFICATION: Katten Muchin Rosenman LLP is an Illinois limited liability partnership that has elected to be governed by the Illinois Uniform Partnership Act (1997).


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EXHIBIT 13 UNREDACTED COPY FILED UNDER SEAL





) )



vs. ) )


) Defendants. )

)

DECLARATION

I, Robert Borders, declare under penalty of perjury that the statements in my October 25,

2019 expert report titled “Response to October 11, 2019 Expert Report of John C. Jarosz” are true

and correct; they describe my investigation in this matter and represent my considered findings

and conclusions based on my expertise and experience.

Dated: November ___7, 2019 Respectfully,

Robert Borders



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