1

Case No. 17-CV-00220-LHK 

ORDER DENYING THE FTC’S MOTION TO EXCLUDE EXPERT TESTIMONY OF DR. EDWARD SNYDER

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

FEDERAL TRADE COMMISSION,

Plaintiff,

v.

QUALCOMM INCORPORATED,

Defendant.

Case No. 17-CV-00220-LHK 

ORDER DENYING THE FTC’S

MOTION TO EXCLUDE EXPERT 

TESTIMONY OF DR. EDWARD 

SNYDER

Re: Dkt. No. 788

Before the Court is Plaintiff Federal Trade Commission’s (“FTC”) motion to exclude the 

expert testimony of Defendant Qualcomm Incorporated’s (“Qualcomm”) expert Dr. Edward

Snyder. Having considered the parties’ briefs, the relevant law, and the record in this case, the 

Court DENIES the FTC’s motion.

I. LEGAL STANDARD

Federal Rule of Evidence 702 allows admission of “scientific, technical, or other 

specialized knowledge” by a qualified expert if it will “help the trier of fact to understand the 

evidence or to determine a fact in issue.” Fed. R. Evid. 702. Expert testimony is admissible 

pursuant to Rule 702 if it is both relevant and reliable. Daubert v. Merrell Dow Pharms., Inc., 509 

U.S. 579, 589 (1993). An expert witness may provide opinion testimony if: (1) the testimony is 
2

Case No. 17-CV-00220-LHK 

ORDER DENYING THE FTC’S MOTION TO EXCLUDE EXPERT TESTIMONY OF DR. EDWARD SNYDER

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

based upon sufficient facts or data; (2) the testimony is the product of reliable principles and 

methods; and (3) the expert has reliably applied the principles and methods to the facts of the case. 

Fed. R. Evid. 702. 

When considering expert testimony offered pursuant to Rule 702, the trial court acts as a 

“gatekeeper” by “making a preliminary determination that the expert’s testimony is reliable.” 

Elsayed Mukhtar v. Cal. State Univ., Hayward, 299 F.3d 1053, 1063 (9th Cir. 2002). In Daubert, 

the United States Supreme Court identified “four factors that may bear on the analysis”: (1) 

whether a theory or technique can be and has been tested; (2) whether the theory or technique has 

been subjected to peer review and publication; (3) the known or potential rate of error; and (4) 

whether the theory is generally accepted in the scientific community. Murray v. S. Route 

Maritime SA, 870 F.3d 915, 922 (9th Cir. 2017) (citing Daubert, 509 U.S. at 593-94). However, 

the Ninth Circuit has explained that “the reliability analysis remains a malleable one tied to the 

facts of each case” and that the “Daubert factors are exemplary, not constraining.” Id. The Ninth 

Circuit has also stated that “[i]t is important to remember that the factors are not ‘equally 

applicable (or applicable at all) in every case,’” and that “[a]pplicability ‘depend[s] on the nature 

of the issue, the expert’s particular expertise, and the subject of his testimony.’” Id. (first quoting 

Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1317 (9th Cir. 1995), then quoting Kumho 

Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999)) (third alteration in original). 

“Because of the fluid and contextual nature of the inquiry, district courts are vested with 

‘broad latitude’ to ‘decid[e] how to test an expert’s reliability’ and ‘whether or not [an] expert’s 

relevant testimony is reliable.’” Id. (quoting Kumho Tire, 526 U.S. at 152-53) (alterations and 

emphasis in original). Thus, the Court “may permissibly choose not to examine factors that are 

not ‘reasonable measures of reliability in a particular case.’” Id. (quoting Kumho Tire, 526 U.S. at 

153); see also id. at 924 (“District courts have broad range to structure the reliability inquiry and 

may choose not to comment on factors that would not inform the analysis.”).

Moreover, the inquiry into admissibility of expert opinion is a “flexible one,” where 

“[s]haky but admissible evidence is to be attacked by cross examination, contrary evidence, and 
3

Case No. 17-CV-00220-LHK 

ORDER DENYING THE FTC’S MOTION TO EXCLUDE EXPERT TESTIMONY OF DR. EDWARD SNYDER

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

attention to the burden of proof, not exclusion.” Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 

2010) (citing Daubert, 509 U.S. at 594, 596). “Under Daubert, the district judge is ‘a gatekeeper, 

not a fact finder.’ When an expert meets the threshold established by Rule 702 as explained in 

Daubert, the expert may testify and the jury decides how much weight to give that testimony.” Id. 

(quoting United States v. Sandoval-Mendoza, 472 F.3d 645, 654 (9th Cir. 2006)).

Furthermore, although the Daubert inquiry must still be performed, it is well established 

that the Court’s gatekeeping duty is “less pressing” regarding a bench trial. AngioScore, Inc. v. 

TriReme Med., Inc., 87 F. Supp. 3d 986, 1016 (N.D. Cal. 2015); see also Fed. Trade Comm’n v. 

BurnLounge, Inc., 753 F.3d 878, 888 (9th Cir. 2014) (explaining that in a bench trial, “there is less 

danger [than in a jury trial] that a trial court will be unduly impressed by the expert’s testimony or 

opinion”) (internal quotation marks omitted). As the Ninth Circuit has held, in a bench trial, “the 

risk that a verdict will be affected unfairly and substantially by the admission of irrelevant 

evidence is far less than in a jury trial.” E.E.O.C. v. Farmer Bros. Co., 31 F. 3d 891, 898 (9th Cir. 

1994); see also United States v. Flores, 901 F.3d 1150, 1165 (9th Cir. 2018) (“Daubert is meant to 

protect juries from being swayed by dubious scientific testimony.” (citation omitted) (emphasis in 

original)). 

II. DISCUSSION

Dr. Snyder is a professor of economics and management and the Dean of the Yale School 

of Management. ECF No. 788-2, Expert Report of Dr. Edward Snyder (“Snyder Report”), ¶ 1. 

Qualcomm retained Dr. Snyder to address the FTC’s allegation that Qualcomm’s conduct harmed 

competition in the modem chip industry. Id. ¶ 7. 

The FTC moves to exclude Dr. Snyder’s opinions on three distinct grounds. First, the FTC 

contends that Dr. Snyder’s opinion on the three factors affecting the performance of modem chip 

suppliers is “not grounded in a generally accepted or reliable theory or methodology, and is 

instead nothing more than a factual narrative.” ECF No. 788 (“Mot.”) at 6. Second, the FTC 

contends that Dr. Snyder’s opinion on modem chip supplier performance is not helpful to the 

Court because Dr. Snyder “never considered (or tested) the possibility that Qualcomm’s conduct 
4

Case No. 17-CV-00220-LHK 

ORDER DENYING THE FTC’S MOTION TO EXCLUDE EXPERT TESTIMONY OF DR. EDWARD SNYDER

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

affected its rivals’ performance” on the three factors Dr. Snyder discusses. Id. at 12. Third, the 

FTC contends that Dr. Snyder’s opinion that “industry performance directly contradicts Plaintiff’s 

Hypothesis” is not reliable or relevant. Id. at 15. The Court addresses each argument in turn. 

A. Dr. Snyder’s Opinions on the Performance of Other Modem Chip Suppliers are 

Supported by a Reliable Methodology

The FTC first attacks Dr. Snyder’s opinion that “the success and failure of firms depend on 

their foresight, the efficiency of their investments, and ability to execute,” and that those three 

factors—rather than Qualcomm’s conduct—explain the performance of other modem chip 

suppliers. Snyder Report ¶ 20. The FTC contends that Dr. Snyder’s three-factor test is not 

reliable because Dr. Snyder’s theory has not been peer reviewed, nor is there evidence that 

economists apply the same three factors to analogous industries. Mot. at 6. In opposition, 

Qualcomm argues that Dr. Snyder’s methodology is reliable because Dr. Snyder, in accordance 

with industrial organization theory, “conduct[ed] an in-depth analysis of an industry to identify the 

factors that affect the success or failure of firms within it,” and then applied those factors to 

specific modem chip suppliers. ECF No. 874 (“Opp”) at 10. Qualcomm has the better argument. 

In his expert report, Dr. Snyder “first review[s] fundamental industrial organization 

principles and then frame[s] their relevance to the modem chip industry.” Snyder Report ¶ 38. 

Dr. Snyder’s overview of industrial organization principles discusses how models of competition 

vary across industry, and Dr. Snyder cites numerous academic articles in support. See id. ¶¶ 40–

45 & nn. 29–46. Then, Dr. Snyder explains how characteristics unique to the modem chip 

industry—such as “successive shifts from one generation of wireless standards to the next”—

affect the factors that influence a modem chip supplier’s success in the industry. Id. ¶ 48. Based 

on Dr. Snyder’s analysis of the modem chip industry, id. ¶¶ 57–178, Dr. Snyder identifies three 

factors “generally” relevant to a modem chip supplier firm’s ability to compete in the industry: 

foresight, investment, and execution. Id. ¶ 186. In the bulk of his report, Dr. Snyder tests whether 

those three factors explain the performance of Qualcomm and other modem chip suppliers. Id. ¶¶ 

213–474. 
5

Case No. 17-CV-00220-LHK 

ORDER DENYING THE FTC’S MOTION TO EXCLUDE EXPERT TESTIMONY OF DR. EDWARD SNYDER

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

To attempt to paint Dr. Snyder’s opinions as unreliable, the FTC focuses only on the final 

step of Dr. Snyder’s analysis, his three-factor analysis of modem chip supplier performance, and 

contends that no other economist has applied those three factors to an analogous industry. 

However, that no other expert has applied Dr. Snyder’s precise three factors to another industry 

does not render his testimony unreliable. See UFCW Local 1776 & Participating Emp’rs Health 

& Welfare Fund v. Teikoku Pharma USA, 296 F. Supp. 3d 1142, 1187 (N.D. Cal. 2017) (admitting 

expert testimony where, although there was “no other case where an expert has employed the 

exact model,” the expert’s testimony was “consistent with accepted economic theory and wellestablished principles”). Indeed, the point of industrial organization theory is to analyze “how 

competition plays out in different markets and how it relates to industry structure.” ECF No. 875-

20 at 146 (academic article on “empirical industrial organization”) (emphasis added). Therefore, 

it is no surprise that Dr. Snyder’s analysis of the modem chip supplier industry focuses on factors 

that Dr. Snyder believes are unique to the industry. See, e.g., Snyder Report ¶ 53 (opining that 

although “the development and transfer of knowledge” is a “challenge[] for any industry,” the 

challenge is “especially acute in the modem chip industry given the investments required”); see 

also ECF No. 875-8 at 6 (book explaining that industrial organization is concerned with how 

“variations and imperfections” in particular markets affect success). 

The FTC’s other primary argument for why Dr. Snyder’s methodology is unreliable is that 

Dr. Snyder’s opinions are not quantifiable. However, the point of the Daubert inquiry is to ensure 

that the “knowledge underlying [expert testimony] has a reliable basis in the knowledge and 

experience of the relevant discipline.” Primiano v. Cook, 598 F.3d 558, 565 (9th Cir. 2010) 

(citation and internal quotation marks omitted). As the United States Supreme Court explained in 

Kumho Tire, “Daubert’s list of specific factors neither necessarily nor exclusively applies to all 

experts or in every case.” 526 U.S. at 141. In Primiano, for example, the Ninth Circuit held that 

the district court abused its discretion by excluding expert testimony simply because “there was no 

publication supporting [the expert’s] opinion.” Id. at 567. Similarly, the FTC identifies no 

Daubert requirement that all expert testimony requires use of quantifiable “metrics.” Cf. Mot. at 
6

Case No. 17-CV-00220-LHK 

ORDER DENYING THE FTC’S MOTION TO EXCLUDE EXPERT TESTIMONY OF DR. EDWARD SNYDER

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

7. To the contrary, as the district court explained in Mullins, a “qualitative analysis” may bear on 

the answer to a qualitative question, such as “how many excessive force complaints are too 

many.” Mullins v. Premier Nutrition Corp., 178 F. Supp. 3d 867, 900 (N.D. Cal. 2016) (citing 

Thomas v. City of Chattanooga, 398 F. 3d 426, 431–32 (6th Cir. 2005). Thus, district courts have 

rejected attempts to exclude expert economic testimony because the testimony relied on 

“qualitative factors.” TV Interactive Data Corp. v. Sony Corp., 929 F. Supp. 2d 1006, 1027 (N.D. 

Cal. 2013); see also Aloe Vera of Am. Inc. v. United States, 2014 WL 3072981, at *4 (D. Ariz. 

July 7, 2014) (admitting economist’s qualitative expert testimony because it reliably applied 

principles of an economics field that could “involve qualitative assessments such as examining 

business models, market characteristics, and the like”). 

Here, the Court concludes that Dr. Snyder’s testimony is based on a reliable methodology

and is not the “junk science” Daubert aims to preclude from jury consideration. Wendell v. 

GlaxoSmithKline, 858 F.3d 1227, 1236 (9th Cir. 2017). Tellingly, the FTC does not contend that 

Dr. Snyder misapplied industrial organization theory, attack Dr. Snyder’s qualifications as an 

economist, or contend that industrial organization theory is not a valid discipline. See id. at 1233–

36 (concluding that district court erred by excluding opinions of “highly qualified doctors” who 

applied “sound methodology” based on their experience, the record before them, and the relevant 

literature). Moreover, Dr. Snyder’s theory is testable. See Murray, 870 F.3d at 922 (explaining 

that “whether the theory can be and has been tested” is often relevant to the Daubert analysis). 

Another economist can test whether Dr. Snyder’s three factors explain the successes or failures of 

all modem chip suppliers. Ultimately, if the FTC believes that Dr. Snyder’s three-factor analysis 

is incorrect or incomplete, “the appropriate way to discredit [Dr. Snyder’s] theory [is] through 

competing evidence and incisive cross-examination.” Id. at 925. 

Finally, the FTC contends that Dr. Snyder is not a qualified expert because he has no 

special expertise in modem chips. However, Dr. Snyder need not be an expert in modem chips to 

opine on the performance of modem chip suppliers, so long as he applies a reliable economic 

methodology. As this Court has explained, “Daubert and its progeny explicitly contemplate the 
7

Case No. 17-CV-00220-LHK 

ORDER DENYING THE FTC’S MOTION TO EXCLUDE EXPERT TESTIMONY OF DR. EDWARD SNYDER

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

admission of expert opinions in new fields.” Apple, Inc. v. Samsung Elecs. Co., 2014 WL 794328, 

at *15 (N.D. Cal. Feb. 25, 2014). Given that Dr. Snyder applies his expertise in industrial 

organization to the modem chip industry, Dr. Snyder provides an opinion that is more than “a 

narrative of the case which a juror is equally capable of constructing.” In re Rezulin Prods. 

Liability Litig., 309 F. Supp. 2d 531, 539 (S.D.N.Y. 2004). Moreover, the appropriate way to 

challenge Dr. Snyder’s theory based on his lack of modem chip expertise is through crossexamination. Therefore, the Court rejects the FTC’s arguments that Dr. Snyder’s opinion is 

unreliable. 

B. Dr. Snyder’s Opinions on the Performance of Other Modem Chip Suppliers are 

Helpful to the Court

The FTC argues that Dr. Snyder’s opinions on the performance of other modem chip 

suppliers are not helpful to the Court because Dr. Snyder fails to consider “whether Qualcomm’s 

conduct caused anticompetitive harm.” Mot. at 12. However, under Daubert, “[e]xpert testimony 

is relevant if the knowledge underlying it has a valid connection to the pertinent inquiry.” 

Primiano, 598 F.3d at 565. The FTC’s burden in this case is to demonstrate that Qualcomm’s 

conduct had anticompetitive effects. See Rambus Inc. v. Fed. Trade Comm’n, 522 F.3d 456, 463 

(D.C. Cir. 2008) (holding that under the Sherman Act, “to be condemned as exclusionary, a 

monopolist’s act must have ‘anticompetitive effect’”) (quoting United States v. Microsoft Corp., 

253 F.3d 34, 58 (D.C. Cir. 2001) (en banc)); see also ECF No. 1 (“Compl”), ¶ 136 (alleging that 

“Qualcomm’s anticompetitive practices have excluded competitors, increased consumer prices, 

and suppressed innovation.”). 

The thrust of Dr. Snyder’s analysis is whether three industry factors, rather than 

Qualcomm’s conduct, explain the relative performance of other modem chip suppliers. See

Snyder Report ¶ 31 (concluding that “industry factors . . . exert a strong influence on industry 

structure, competition among modem chip suppliers, [and] the successes and failures of 

suppliers”). Certainly, Dr. Snyder’s opinion is relevant to whether Qualcomm’s conduct had 

anticompetitive effects under the Sherman Act. Moreover, to the extent that the FTC argues that 
8

Case No. 17-CV-00220-LHK 

ORDER DENYING THE FTC’S MOTION TO EXCLUDE EXPERT TESTIMONY OF DR. EDWARD SNYDER

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

Dr. Snyder ignores how Qualcomm’s conduct interacts with the three industry factors, Dr. Snyder 

testified that he “identified the industry factors that [he] believed would not influenced by the 

conduct.” Snyder Dep., 43:9–11. At trial, the FTC can press its point that Dr. Snyder’s opinions 

are irrelevant because they fail to consider the impact of Qualcomm’s conduct through “[v]igorous 

cross-examination [and] presentation of contrary evidence.” Daubert, 509 U.S. at 596. 

At the Daubert gatekeeping stage, “[t]he district court is not tasked with deciding whether 

the expert is right or wrong, just whether his testimony has substance such that it would be 

helpful” to the trier of fact. Alaska Rent-A-Car, Inc. v. Avis Budget Grp., Inc., 738 F.3d 960, 969–

70 (9th Cir. 2013). Because Dr. Snyder’s testimony is relevant to whether Qualcomm’s conduct 

caused any anticompetitive effects on the modem chip supplier industry, the Court rejects the 

FTC’s argument that it is unhelpful. 

C. Dr. Snyder’s Opinions on the Health of the Modem Chip Industry are Helpful to 

the Court and Supported by a Reliable Methodology 

Lastly, the FTC argues that Dr. Snyder’s opinions on the health of the modem chip 

industry overall are unreliable and unhelpful because “Dr. Snyder fails to provide any logical or 

verifiable reasoning” to suggest that overall industry performance is relevant to the FTC’s 

allegations. Mot. at 15. The FTC’s argument on this point is spare. In essence, the FTC argues 

that Dr. Snyder offers no basis to believe that an industry’s performance proves the absence of 

anticompetitive effect. In Section VI of his report, Dr. Snyder analyzes “whether there is evidence 

of any such impaired performance” in the modem chip industry. Snyder Report ¶ 475. 

As explained above, Dr. Snyder’s opinion is at least probative of whether the FTC has 

proven its allegation that Qualcomm’s conduct “suppressed innovation” and otherwise had 

anticompetitive effect. Compl. ¶ 136. In fact, the FTC’s own expert, Dr. Carl Shapiro, offers 

analogous expert testimony that “[i]ndustries that are growing and where technology is advancing 

are certainly not immune from antitrust problems.” ECF No. 789-6, Ex. 6, Rebuttal Expert Report 

of Dr. Carl Shapiro (“Shapiro Report”), ¶ 258. Dr. Snyder’s failure to address the precise legal 

question as the FTC sees it—whether Qualcomm’s conduct reduced competition—is a subject for 
9

Case No. 17-CV-00220-LHK 

ORDER DENYING THE FTC’S MOTION TO EXCLUDE EXPERT TESTIMONY OF DR. EDWARD SNYDER

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

cross-examination. See Mot. at 15; see also Microsoft, 253 F.3d at 58 (stating that conduct has an

anticompetitive effect where it “harm[s] the competitive process and thereby harm[s] consumers”). 

In addition, Dr. Snyder’s testimony is reliable, in that Dr. Snyder measured industry 

performance by reference to metrics measuring “the pace of innovation, quality-adjusted prices, 

and overall benefits to consumers.” Snyder Report ¶ 476. For example, Dr. Snyder analyzes 

innovation by reference to modem chip suppliers’ spending on research and development, and 

compares modem chip suppliers’ investments in that area to other analogous industries. Id. ¶ 478. 

Other metrics that Dr. Snyder examines include modem chip prices, data speed, and consumer 

surplus, none of which the FTC contends are incorrect means to measure industry performance. 

Id. ¶ 479–96. Instead, the FTC contends, essentially, that Dr. Snyder’s opinion is not relevant. 

See Mot. at 16 (arguing that Dr. Snyder should have opined “whether the industry could have 

experienced greater innovation or larger price decreases in the absence of Qualcomm’s 

exclusionary conduct”) (emphases omitted). As explained, the FTC is free to press that point on 

cross-examination of Dr. Snyder. Primiano, 598 F.3d at 564 (“Shaky but admissible evidence is 

to be attacked by cross examination, contrary evidence, and attention to the burden of proof, not 

exclusion.”). 

III. CONCLUSION

For the foregoing reasons, the Court DENIES the FTC’s motion to exclude Dr. Snyder’s 

expert opinions. 

IT IS SO ORDERED.

Dated: December 17, 2018

______________________________________

LUCY H. KOH

United States District Judge