.. x.\l\~l TRAD .. . E C04

4_~~ REG~MEN

07 10 202

UNITED STATES OF AMERICA 598874 

FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

) 

In the Matter of ) 

) 

Peabody Energy Corporation, ) 

a public company, ) Docket No. 9391 

) 

and ) 

) 

Arch Coal, Inc., ) 

a public company, ) 

) 

Respondents. ) 

SCHEDULING ORDER 

August 18, 2020 Complaint Counsel provides preliminaiy witness list (not including 

experts) with a brief smnmaiy of the proposed testimony. 

August 25, 2020 Respondents' Counsel provides preliminaiy witness list (not 

including expe1is) with a brief smnmaiy of the proposed testimony. 

September 1, 2020 Complaint Counsel provides expe1i witness list. 

September 10, 2020 - Respondents' Counsel provides expe1i witness list. 

September 17, 2020 - Deadline for issuing document requests, intenogatories and 

subpoenas due es tecum, except for discove1y for purposes 

of authenticity and admissibility of exhibits. 

October 13, 2020 Deadline for issuing requests for admissions, except for 

requests for admissions for pmposes of authenticity and 

admissibility of exhibits. 

October 16, 2020 Close of discove1y, other than discove1y permitted under Rule 

3 .24( a)( 4), depositions of expe1is, and discove1y for pmposes of 

authenticity and admissibility of exhibits. 

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October 23, 2020 - Deadline for Complaint Counsel to provide expert witness reports.

November 2, 2020 - Complaint Counsel provides to Respondents’ Counsel its final 

proposed witness and exhibit lists, including depositions, copies of 

all exhibits (except for demonstrative, illustrative or summary 

exhibits and expert related exhibits), Complaint Counsel’s basis of 

admissibility for each proposed exhibit, and a brief summary of the 

testimony of each witness. 

Complaint Counsel provides courtesy copies to ALJ of its final 

proposed witness and exhibit lists, its basis of admissibility for 

each proposed exhibit, and a brief summary of the testimony of 

each witness, including its expert witnesses.

November 5, 2020 - Deadline for Respondents’ Counsel to provide expert witness 

reports. Respondents’ expert report shall include (without 

limitation) rebuttal, if any, to Complaint Counsel’s expert witness 

report(s).

November 9, 2020 - Respondents’ Counsel provides to Complaint Counsel its final 

proposed witness and exhibit lists, including depositions, copies of 

all exhibits (except for demonstrative, illustrative or summary 

exhibits and expert related exhibits), Respondents’ basis of 

admissibility for each proposed exhibit, and a brief summary of the 

testimony of each witness. 

Respondents’ Counsel provides courtesy copies to ALJ its final 

proposed witness and exhibit lists, its basis of admissibility for 

each proposed exhibit, and a brief summary of the testimony of 

each witness, including its expert witnesses.

November 9, 2020 - Parties that intend to offer confidential materials of an opposing 

party or non-party as evidence at the hearing must 

provide notice to the opposing party or non-party, pursuant 

to 16 C.F.R. § 3.45(b).1

 

 

1 Appendix A to Commission Rule 3.31, the Standard Protective Order, states that if a party or third party wishes in 

camera treatment for a document or transcript that a party intends to introduce into evidence, that party or third 

party shall file an appropriate motion with the Administrative Law Judge within 5 days after it receives notice of a 

party’s intent to introduce such material. Commission Rule 3.45(b) states that parties who seek to use material 

obtained from a third party subject to confidentiality restrictions must demonstrate that the third party has been 

given at least 10 days’ notice of the proposed use of such material. To resolve this apparent conflict, the Scheduling 

Order requires that the parties provide 10 days’ notice to the opposing party or third parties to allow for the filing of 

motions for in camera treatment. 
3

November 16, 2020 - Complaint Counsel to identify rebuttal expert(s) and provide 

rebuttal expert report(s). Any such reports are to be limited to 

rebuttal of matters set forth in Respondents’ expert reports. If 

material outside the scope of fair rebuttal is presented, 

Respondents will have the right to seek appropriate relief (such as 

striking Complaint Counsel’s rebuttal expert reports or seeking 

leave to submit surrebuttal expert reports on behalf of 

Respondents). 

November 19, 2020 - Deadline for filing motions in limine to preclude admission 

 of evidence. See Additional Provision 13. 

November 19, 2020 - Deadline for filing motions for in camera treatment of proposed 

trial exhibits. See Additional Provision 12. 

November 20, 2020 - Deadline for depositions of experts (including rebuttal experts) and 

exchange of expert related exhibits. 

November 23, 2020 - Exchange and provide a courtesy copy to ALJ of objections to 

final proposed witness lists and exhibit lists. The Parties are 

directed to review the Commission’s Rules on admissibility of 

evidence before filing objections to exhibits. 

November 23, 2020 - Complaint Counsel files pretrial brief supported by legal authority. 

November 24, 2020 - Deadline for filing responses to motions in limine to preclude 

admission of evidence. 

November 24, 2020 - Deadline for filing responses to motions for in camera treatment of 

proposed trial exhibits. 

November 25, 2020 - Exchange proposed stipulations of law, facts, and authenticity. 

November 27, 2020 - Respondents’ Counsel files pretrial brief supported by legal 

authority. 

November 30, 2020 - Final prehearing conference to begin at 1:00 p.m. in FTC 

Courtroom, Room 532, Federal Trade Commission Building, 600 

Pennsylvania Avenue, NW, Washington, DC 20580. 

The parties shall meet and confer prior to the prehearing 

conference regarding trial logistics and proposed stipulations of 

law, facts, and authenticity of exhibits. 
4

To the extent the parties have agreed to stipulate to any issues of 

law, facts, and/or authenticity of exhibits, the parties shall prepare 

a list of such stipulations and submit a copy of the stipulations to 

the ALJ one business day prior to the conference. At the 

conference, the parties’ list of stipulations shall be marked as 

“JX1” and signed by each party, and the list shall be offered into 

evidence as a joint exhibit. No signature by the ALJ is required. 

Any subsequent stipulations may be offered as agreed by the 

parties.

Counsel may present any objections to the final proposed witness 

lists and exhibits. Trial exhibits will be admitted or excluded to 

the extent practicable. To the extent the parties agree to the 

admission of each other’s exhibits, the parties shall prepare a list 

identifying each exhibit to which admissibility is agreed, marked 

as “JX2” and signed by each party, which list shall be offered into 

evidence as a joint exhibit. No signature by the ALJ is required. 

December 1, 2020 - Commencement of Hearing, to begin at 10:00 a.m. in FTC 

Courtroom, Room 532, Federal Trade Commission Building, 600 

Pennsylvania Avenue, NW, Washington, DC 20580. 

ADDITIONAL PROVISIONS

1. For all papers that are required to be filed with the Office of the Secretary, the 

parties shall provide a courtesy copy to the Administrative Law Judge by electronic mail to the 

following email address: oalj@ftc.gov. The courtesy copy should be transmitted at or shortly 

after the time of any electronic filing with the Office of the Secretary. Courtesy copies must be 

transmitted to Office of the Administrative Law Judge directly, and the FTC E-filing system 

shall not be used for this purpose. The oalj@ftc.gov email account is to be used only for 

courtesy copies of pleadings filed with the Office of the Secretary and for documents specifically 

requested of the parties by the Office of Administrative Law Judges. Certificates of service for 

any pleading shall not include the OALJ email address, or the email address of any OALJ 

personnel, including the Chief ALJ, but rather shall designate only 600 Pennsylvania Ave., NW, 

Rm. H-110 as the place of service. The subject line of all electronic submissions to 

oalj@ftc.gov shall set forth the docket number, an abbreviated case name, and the title of 

the submission (e.g., “No. 1234: Acme Corp – Motion to extend”). The parties are not 

required to provide a courtesy copy to the OALJ in hard copy, except upon request. In any 

instance in which a courtesy copy of a pleading for the Administrative Law Judge cannot be 

effectuated by electronic mail, counsel shall hand deliver a hard copy to the Office of 

Administrative Law Judges. Discovery requests and discovery responses shall not be submitted 

to the Office of Administrative Law Judges.

2. The parties shall serve each other by electronic mail and shall include “Docket 

9391” in the re: line and all attached documents in .pdf format. In the event that service through 
5

electronic mail is not possible, the parties may serve each other through any method authorized 

under the Commission’s Rules of Practice. 

 

3. Each pleading that cites to unpublished opinions or opinions not available on 

LEXIS or WESTLAW shall include such copies as exhibits. 

4. Each motion (other than a motion to dismiss, motion for summary decision, or 

a motion for in camera treatment) shall be accompanied by a separate signed statement 

representing that counsel for the moving party has conferred with opposing counsel in an effort 

in good faith to resolve by agreement the issues raised by the motion and has been unable to 

reach such an agreement. In addition, pursuant to Rule 3.22(g), for each motion to quash filed 

pursuant to § 3.34(c), each motion to compel or determine sufficiency pursuant to § 3.38(a), or 

each motion for sanctions pursuant to § 3.38(b), the required signed statement must also “recite 

the date, time, and place of each . . . conference between counsel, and the names of all parties 

participating in each such conference.” Motions that fail to include such separate statement may 

be denied on that ground. 

5. Rule 3.22(c) states: 

All written motions shall state the particular order, ruling, or action desired and the 

grounds therefor. Memoranda in support of, or in opposition to, any dispositive motion 

shall not exceed 10,000 words. Memoranda in support of, or in opposition to, any other 

motion shall not exceed 2,500 words. Any reply in support of a dispositive motion shall 

not exceed 5,000 words and any reply in support of any other motion authorized by the 

Administrative Law Judge or the Commission shall not exceed 1,250 words. 

If a party chooses to submit a motion without a separate memorandum, the word count limits of 

3.22(c) apply to the motion. If a party chooses to submit a motion with a separate memorandum, 

absent prior approval of the ALJ, the motion shall be limited to 750 words, and the word count 

limits of 3.22(c) apply to the memorandum in support of the motion. This provision applies to 

all motions filed with the Administrative Law Judge, including those filed under Rule 3.38. 

6. If papers filed with the Office of the Secretary contain in camera or 

confidential material, the filing party shall mark any such material in the complete version of 

their submission with {bold font and braces}. 16 C.F.R. § 3.45(e). Parties shall be aware of the 

rules for filings containing such information, including 16 C.F.R. § 4.2. 

 

7. Each party is limited to 50 document requests, including all discrete subparts;

25 interrogatories, including all discrete subparts; and 50 requests for admissions, including all 

discrete subparts, except that there shall be no limit on the number of requests for admission for 

authentication and admissibility of exhibits. Any single interrogatory inquiring as to a request 

for admissions response may address only a single such response. There is no limit to the 

number of sets of discovery requests the parties may issue, so long as the total number of each 

type of discovery request, including all subparts, does not exceed these limits. Within seven 

days of service of a document request, the parties shall confer about the format for the 

production of electronically stored information. 
6

8. Compliance with the scheduled end of discovery requires that the parties serve

subpoenas and discovery requests sufficiently in advance of the discovery cut-off and that all 

responses and objections will be due on or before that date, unless otherwise noted. Any motion 

to compel responses to discovery requests shall be filed within 30 days of service of the 

responses and/or objections to the discovery requests or within 20 days after the close of 

discovery, whichever first occurs; except that, where the parties have been engaging in 

negotiations over a discovery dispute, the deadline for the motion to compel shall be within 5 

days of reaching an impasse.

9. The deposition of any person may be recorded by videotape, provided that the 

deposing party notifies the deponent and all parties of its intention to record the deposition by 

videotape at least five days in advance of the deposition. No deposition, whether recorded by 

videotape or otherwise, may exceed a single, seven-hour day, unless otherwise agreed to by the 

parties or ordered by the Administrative Law Judge. 

10. The parties shall serve upon one another, at the time of issuance, copies of all 

subpoenas duces tecum and subpoenas ad testificandum. For subpoenas ad testificandum, the 

party seeking the deposition shall consult with the other parties before the time and place of the 

deposition is scheduled. The parties need not separately notice the deposition of a non-party 

noticed by an opposing party. If both sides notice any non-party fact deposition, the time and 

allocation for the deposition shall be divided evenly between them. For any non-party deposition 

noticed by only one side, the non-noticing side shall be allocated one and a half hours of 

deposition time for cross or re-cross testimony. Unused time in any side’s allocation of 

deposition time may be used by the other side. 

11. Non-parties shall provide copies or make available for inspection and copying 

of documents requested by subpoena to the party issuing the subpoena. The party that has 

requested documents from non-parties shall provide copies of the documents received from nonparties to the opposing party within three business days of receiving the documents. No 

deposition of a non-party shall be scheduled between the time a non-party provides documents in 

response to a subpoena duces tecum to a party, and 3 business days after the party provides those 

documents to the other party, unless a shorter time is required by unforeseen logistical issues in 

scheduling the deposition, or a non-party produces those documents at the time of the deposition, 

as agreed to by all parties involved. 

12. If a party intends to offer confidential materials of an opposing party or nonparty as evidence at the hearing, in providing notice to such non-party, the parties are required to 

inform each non-party of the strict standards for motions for in camera treatment for evidence to 

be introduced at trial set forth in 16 C.F.R. § 3.45, explained In re Otto Bock Healthcare N. Am., 

2018 WL 3491602 at *1 (July 2, 2018); and In re 1-800 Contacts, Inc., 2017 FTC LEXIS 55 

(April 4, 2017). Motions also must be supported by a declaration or affidavit by a person 

qualified to explain the confidential nature of the documents. In re 1-800 Contacts, Inc., 2017 

FTC LEXIS 55 (April 4, 2017); In re North Texas Specialty Physicians, 2004 FTC LEXIS 66 

(April 23, 2004). Each party or non-party that files a motion for in camera treatment shall 

provide one copy of the documents for which in camera treatment is sought to the 

Administrative Law Judge. 
7

13. Motions in limine are strongly discouraged. Motion in limine refers “to any 

motion, whether made before or during trial, to exclude anticipated prejudicial evidence before 

the evidence is actually offered.” In re Daniel Chapter One, 2009 FTC LEXIS 85, *18-20 (April 

20, 2009) (citing Luce v. United States, 469 U.S. 38, 40 n.2 (1984)). Evidence should be 

excluded in advance of trial on a motion in limine only when the evidence is clearly inadmissible 

on all potential grounds. Id. (citing Hawthorne Partners v. AT&T Technologies, Inc., 831 F. 

Supp. 1398, 1400 (N.D. Ill. 1993); Sec. Exch. Comm’n v. U.S. Environmental, Inc., 2002 U.S. 

Dist. LEXIS 19701, at *5-6 (S.D.N.Y. Oct. 16, 2002)). Moreover, the risk of prejudice from 

giving undue weight to marginally relevant evidence is minimal in a bench trial such as this 

where the judge is capable of assigning appropriate weight to evidence.

14. The final witness lists shall represent counsel’s good faith designation of all

potential witnesses who counsel reasonably expect may be called in their case-in-chief. Parties 

shall notify the opposing party promptly of changes in witness lists to facilitate completion of 

discovery within the dates of the scheduling order. The final proposed witness list may not 

include additional witnesses not listed in the preliminary or supplemental witness lists previously 

exchanged unless by consent of all parties, or, if the parties do not consent, by an order of the 

Administrative Law Judge upon a showing of good cause. 

15. If any party wishes to offer a rebuttal witness other than a rebuttal expert, the 

party shall file a request in writing in the form of a motion to request a rebuttal witness. That 

motion shall be filed as soon as possible after the testimony sought to be rebutted is known and 

shall include: (a) the name of any witness being proposed (b) a detailed description of the 

rebuttal evidence being offered; (c) citations to the record, by page and line number, to the 

evidence that the party intends to rebut; and shall demonstrate that the witness the party seeks to 

call has previously been designated on its witness list or adequately explain why the requested 

witness was not designated on its witness list.

16. Witnesses shall not testify to a matter unless evidence is introduced sufficient 

to support a finding that the witness has personal knowledge of the matter. F.R.E. 602. 

17. Witnesses not properly designated as expert witnesses shall not provide 

opinions beyond what is allowed in F.R.E. 701. 

18. The parties are required to comply with Rule 3.31A and with the following:

(a) At the time an expert is first listed as a witness by a party, that party shall 

provide to the other party: 

 (i) materials fully describing or identifying the background and qualifications of the 

expert, all publications authored by the expert within the preceding ten years, and all prior cases 

in which the expert has testified or has been deposed within the preceding four years; and 

 (ii) transcripts of such testimony in the possession, custody, or control of the producing 

party or the expert, except that transcript sections that are under seal in a separate proceeding 

need not be produced. 
8

(b) At the time an expert report is produced, the producing party shall provide to the 

other party all documents and other written materials relied upon by the expert in formulating an 

opinion in this case, subject to the provisions of 19(g), except that documents and materials 

already produced in the case need only be listed by Bates number. 

(c) It shall be the responsibility of a party designating an expert witness to ensure that the 

expert witness is reasonably available for deposition in keeping with this Scheduling Order. 

Unless otherwise agreed to by the parties or ordered by the Administrative Law Judge, expert 

witnesses shall be deposed only once and each expert deposition shall be limited to one day for 

seven hours. 

(d) Each expert report shall include a complete statement of all opinions to be expressed 

and the basis and reasons therefor; the data or other information relied on by the expert in 

forming the opinions; any exhibits to be used as a summary of or support for the opinions; the 

qualifications of the expert; and the compensation to be paid for the study and testimony. 

(e) A party may not discover facts known or opinions held by an expert who has been 

retained or specially employed by another party in anticipation of this litigation or preparation 

for hearing and who is not designated by a party as a testifying witness. 

(f) At the time of service of the expert reports, a party shall provide opposing counsel: 

 (i) a list of all commercially-available computer programs used by the expert in the 

preparation of the report; 

 (ii) a copy of all data sets used by the expert, in native file format and processed data 

file format; and 

 (iii) all customized computer programs used by the expert in the preparation of the 

report or necessary to replicate the findings on which the expert report is based.

(g) Experts’ disclosures and reports shall comply in all respects with Rule 3.31A, except 

that neither side must preserve or disclose:

 (i) any form of communication or work product shared between any of the parties’ 

counsel and their expert(s), or between any of the experts themselves; 

 (ii) any form of communication or work product shared between an expert(s) 

and persons assisting the expert(s); 

 (iii) expert’s notes, unless they constitute the only record of a fact or an assumption 

relied upon by the expert in formulating an opinion in this case; 

 (iv) drafts of expert reports, analyses, or other work product; or 

 (v) data formulations, data runs, data analyses, or any database-related operations not 

relied upon by the expert in the opinions contained in his or her final report. 

19. If the expert reports prepared for either party contain confidential information 

that has been granted in camera treatment, the party shall prepare two versions of its expert 

report(s) in accordance with 16 C.F.R. § 3.45(e). 
9

20. An expert witness’ testimony is limited to opinions contained in the expert 

report that has been previously and properly provided to the opposing party. In addition, no 

opinion will be considered, even if included in an expert report, if the underlying and supporting 

documents and information have not been properly provided to the opposing party. Unless an 

expert witness is qualified as a fact witness, an expert witness is only allowed to provide opinion 

testimony; expert testimony is not considered for the purpose of establishing the underlying facts 

of the case. 

21. The final exhibit lists shall represent counsel’s good faith designation of all 

trial exhibits other than demonstrative, illustrative, or summary exhibits. Additional exhibits 

may be added after the submission of the final lists only by consent of all parties, or, if the 

parties do not consent, by an order of the Administrative Law Judge upon a showing of good 

cause.

22. Properly admitted deposition testimony and properly admitted investigational 

hearing transcripts are part of the record and shall not be read in open court to provide that 

testimony, but may be used in the examination of live witnesses. Videotape deposition excerpts 

that have been admitted in evidence may be presented in open court only upon prior approval by 

the Administrative Law Judge. 

 

23. The parties shall provide to one another, and to the Administrative Law Judge 

and the court reporter, no later than 48 hours in advance, not including weekends and holidays, a 

list of all witnesses to be called on each day of hearing, subject to possible delays or unforeseen 

circumstances. 

24. The parties shall provide one another with copies of any demonstrative, 

illustrative or summary exhibits (other than those prepared for cross-examination) 24 hours 

before they are used with a witness. 

25. Complaint Counsel’s exhibits shall bear the designation PX and Respondents’ 

exhibits shall bear the designation RX or some other appropriate designation. Complaint 

Counsel’s demonstrative exhibits shall bear the designation PXD and Respondents’ 

demonstrative exhibits shall bear the designation RXD or some other appropriate designation. If 

demonstrative exhibits are used with a witness, the exhibit will be marked and referred to for 

identification only. Any demonstrative exhibits referred to by any witness may be included in 

the trial record, but they are not part of the evidentiary record and may not be cited to support 

any disputed fact. Both sides shall number the first page of each exhibit with a single series of 

consecutive numbers. When an exhibit consists of more than one piece of paper, each page of 

the exhibit must bear a consecutive control number or some other consecutive page number. 

Additionally, parties must account for all their respective exhibit numbers. Any number not 

actually used at the hearing shall be designated “intentionally not used.” 

26. At the final prehearing conference, counsel will be required to introduce all 

exhibits they intend to introduce at trial and to provide the exhibits to the court reporter. The 

parties shall confer and shall eliminate duplicative exhibits in advance of the final prehearing 

conference and, if necessary, during trial. For example, if PX100 and RX200 are different 

copies of the same document, only one of those documents shall be offered into evidence. The 
D. Michael Chappell 

Chief Administrative Law Judge 

10

parties shall agree in advance as to which exhibit number they intend to use. Counsel shall 

contact the court reporter regarding submission of exhibits. 

ORDERED: 

Date: July 10, 2020 
Notice of Electronic Service 

I hereby certify that on July 10, 2020, I filed an electronic copy of the foregoing Scheduling Order, with: 

D. Michael Chappell 

Chief Administrative Law Judge 

600 Pennsylvania Ave., NW 

Suite 110 

Washington, DC, 20580 

Donald Clark 

600 Pennsylvania Ave., NW 

Suite 172 

Washington, DC, 20580 

I hereby certify that on July 10, 2020, I served via E-Service an electronic copy of the foregoing Scheduling 

Order, upon: 

Stephen Weissman 

Partner 

Baker Botts LLP 

stephen.weissman@bakerbotts.com 

Respondent 

Michael Perry 

Partner 

Baker Botts LLP 

michael.perry@bakerbotts.com 

Respondent 

William Lavery 

Partner 

Baker Botts LLP 

william.lavery@bakerbotts.com 

Respondent 

Matthew Adler 

Senior Associate 

Baker Botts LLP 

matthew.adler@bakerbotts.com 

Respondent 

Elisa Beneze 

Associate 

Baker Botts LLP 

elisa.beneze@bakerbotts.com 

Respondent 

Jarad Daniels 

Associate 

Baker Botts LLP 

jarad.daniels@bakerbotts.com 

Respondent 

Steven Pet 

Associate 

Baker Botts LLP 

steven.pet@bakerbotts.com 

Respondent 
Daniel Matheson 

Attorney 

Federal Trade Commission 

dmatheson@ftc.gov 

Complaint 

Amy E. Dobrzynski 

Attorney 

Federal Trade Commission 

adobrzynski@ftc.gov 

Complaint 

Edward D. Hassi 

Esq. 

Debevoise & Plimpton LLP 

thassi@debevoise.com 

Respondent 

Leah S. Martin 

Esq. 

Debevoise & Plimpton LLP 

lmartin@debevoise.com 

Respondent 

Michael Schaper 

Esq. 

Debevoise & Plimpton LLP 

mschaper@debevoise.com 

Respondent 

J. Robert Abraham 

Esq. 

Debevoise & Plimpton LLP 

jrabraham@debevoise.com 

Respondent 

Tristan M. Ellis 

Esq. 

Debevoise & Plimpton LLP 

tmellis@debevoise.com 

Respondent 

Gorav Jindal 

Akin Gump Strauss Hauer & Feld LLP 

gjindal@akingump.com 

Respondent 

Corey Roush 

Partner 

Akin Gump Strauss Hauer & Feld LLP 

croush@akingump.com 

Respondent 

Matthew Schmitten 

Akin Gump Strauss Hauer & Feld LLP 

mschmitten@akingump.com 

Respondent 
Andrew George 

Special Counsel 

Baker Botts LLP 

andrew.george@bakerbotts.com 

Respondent 

Jonathan Lasken 

Attorney 

U.S. Federal Trade Commission 

jlasken@ftc.gov 

Complaint 

Lynnette Pelzer 

Attorney