FTC’S NOTICE OF MOTION AND MOTION TO EXCLUDE TESTIMONY OF DR. SNYDER

AND SUPPORTING MEMORANDUM OF POINTS AND AUTHORITIES

Case No. 17-cv-00220-LHK-NMC 

Jennifer Milici, D.C. Bar No. 987096 

Joseph R. Baker, D.C. Bar No. 490802 

Wesley G. Carson, D.C. Bar No. 1009899 

Mika Ikeda, D.C. Bar. No. 983431 

Geoffrey M. Green, D.C. Bar No. 428392 

Daniel Matheson, D.C. Bar. No. 502490 

Federal Trade Commission 

600 Pennsylvania Avenue, N.W. 

Washington, D.C. 20580 

(202) 326-3695; (202) 326-3496 (fax)

jmilici@ftc.gov

Attorneys for Plaintiff Federal Trade Commission 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

SAN JOSE DIVISION 

FEDERAL TRADE COMMISSION, 

Plaintiff 

v. 

QUALCOMM INCORPORATED, a Delaware 

Corporation, 

Defendant. 

Case No. 5:17-cv-00220-LHK-NMC 

FEDERAL TRADE COMMISSION’S 

NOTICE OF MOTION AND MOTION TO 

EXCLUDE EXPERT TESTIMONY OF 

DR. EDWARD A. SNYDER, AND 

MEMORANDUM IN SUPPORT 

REDACTED VERSION OF DOCUMENT 

FILED UNDER SEAL 

Date: October 18, 2018 

Time: 1:30 p.m. 

Courtroom: 8, 4th Floor 

Judge: Hon. Lucy H. Koh 

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NOTICE OF MOTION AND MOTION

To the Honorable Court, all parties, and their attorneys of record: 

Please take notice that on October 18, 2018, at 1:30 p.m., in Courtroom 8, United States 

Courthouse, 280 South 1st Street, San Jose, California 95113, Plaintiff Federal Trade 

Commission (“the FTC”) will and hereby does move the Court for an order excluding the 

testimony of Dr. Edward A. Snyder, designated by Defendant Qualcomm Incorporated 

(“Qualcomm”) as an expert witness in this matter, concerning (1) Dr. Snyder’s analysis of 

modem chip supplier performance and modem chip industry performance; (2) Dr. Snyder’s 

opinions related to the FTC’s alleged anticompetitive effects. The FTC’s motion is based on the 

authorities and evidence set forth here, the accompanying declaration and exhibits, oral argument 

to be presented to the Court, and such other matters as the Court may consider. 

The FTC seeks to exclude portions of Dr. Snyder’s testimony that are based on an 

untested theory and unreliable methodology, and are unhelpful to the court under Federal Rule of 

Evidence 702 and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). A proposed 

form of order is being lodged concurrently herewith. 

STATEMENT OF ISSUE TO BE DECIDED 

Whether certain opinions offered by Dr. Edward A. Snyder should be excluded under 

Federal Rules of Evidence 702 and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). 

Dated: August 30, 2018 

Respectfully submitted, 

 /s/ Jennifer Milici

JENNIFER MILICI 

JOSEPH R. BAKER 

WESLEY G. CARSON 

GEOFFREY M. GREEN 

MIKA IKEDA 

DANIEL MATHESON 

Attorneys for Plaintiff Federal Trade 

Commission 

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Table of Contents 

I. STATEMENT OF RELEVANT FACTS ............................................................................2

II. LEGAL STANDARD ..........................................................................................................4

III. ARGUMENT .......................................................................................................................5

A. This Court Should Exclude Dr. Snyder’s Opinion That his “Analyses of Modem 

Chip Suppliers” Contradicts the FTC’s Claims .......................................................6

1. Dr. Snyder’s Theory Is Untested, and His Methodology for Testing That 

Theory Is Unreliable ....................................................................................6

2. Dr. Snyder Lacks the Relevant Expertise to Analyze Modem Chip 

Suppliers’ Performance and Simply Provides a Narrative ........................10

B. Dr. Snyder Failed to Assess Whether Qualcomm’s Conduct Affected Its Rivals’ 

Performance ...........................................................................................................12

C. Dr. Snyder’s Assertion That the Modem Chip Industry Shows “Strong 

Performance” Is Not Probative of “Plaintiff’s Hypothesis” ..................................15

IV. CONCLUSION ..................................................................................................................17

 

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Table of Authorities 

Cases

Apple, Inc. v. Samsung Elecs. Co., Ltd., No. 11-CV-01846-LHK, 2012 WL 2571332 (N.D. Cal. 

June 30, 2012) ....................................................................................................................... 4, 7 

Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311 (9th Cir. 1995) (“Daubert II”) ................... 4 

Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993) ........................................................ 4 

Domingo ex rel. Domingo v. T.K., 289 F.3d 600 (9th Cir. 2002) .......................................... passim 

Fujifilm Corp. v. Motorola Mobility LLC, No. 12-CV-03587-WHO, 2015 WL 757575 (N.D. Cal. 

Feb. 20, 2015) ..................................................................................................................... 1, 11 

Gen. Elec. Co. v. Joiner, 522 U.S. 136 (1997) ............................................................................... 8 

Highland Capital Mgmt. L.P. v. Scheider, 379 F. Supp. 2d 461 (S.D.N.Y. 2005) ....................... 11 

In re Ford Tailgate Litig., No. 11-CV-02953-RS, 2015 WL 7571772 (N.D. Cal. Nov. 25, 2015) .. 

............................................................................................................7, 8 

In re Rezulin Prod. Liab. Litig., 309 F. Supp. 2d 531 (S.D.N.Y. 2004) ................................... 1, 12 

Lucido v. Nestle Purina Petcare Co., 217 F. Supp. 3d 1098 (N.D. Cal. 2016) ............................ 10 

Mullins v. Premier Nutrition Corp., 178 F. Supp. 3d 867 (N.D. Cal. 2016) ................................ 10 

Schilder Dairy, LLC v. DeLaval, Inc., 2011 WL 2634251 (D. Id. July 5, 2011) ........................... 5 

Sierra Club v. Talen Montana LLC, No. CV 13-32-BLG-DLC-JCL, 2016 WL 11200732 (D. 

Mont. Mar. 25, 2016) ................................................................................................................ 5 

Wagner v. Cnty. of Maricopa, 673 F.3d 977 (9th Cir. 2012) (withdrawn and superseded on other 

grounds, 747 F.3d 1048 (9th Cir. 2013)) .................................................................................. 6 

Other Authorities

Daniel L. Rubinfeld, Reference Guide on Multiple Regression, in Reference Manual on Scientific 

Evidence (Federal Judicial Center ed., 3d ed. 2011) ............................................................... 14 

George J. Stigler, What Does an Economist Know?, 33 J. Legal Educ. 311 (1983) .................... 11 

Rules

Fedederal Rule of Evidence 702 ........................................................................................... 4, 9, 17 

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MEMORANDUM OF POINTS AND AUTHORITIES 

The FTC’s Complaint alleges that Qualcomm has engaged in a course of anticompetitive 

conduct that taxes rivals’ sales and diminishes “competitors’ abilities and incentives to invest 

and innovate.” Compl. ¶ 91. Qualcomm has produced nine expert reports, including four reports 

from economists. One of those economists, Dr. Edward A. Snyder, submitted a report claiming 

that the FTC’s allegations are contradicted by evidence regarding Qualcomm’s rivals’ 

performance and overall industry performance. This Court should exclude both of these 

purported opinions offered by Dr. Snyder, in order to prevent Dr. Snyder from offering an 

improper evidentiary summary masquerading as expert testimony. 

The bulk of Dr. Snyder’s report recounts the experiences of Qualcomm and thirteen of its 

rival modem chip suppliers, nearly all of which have exited the market. Dr. Snyder offers his 

opinion that the failures of Qualcomm’s rivals can each be explained by an idiosyncratic lack of 

“foresight, “investment efficiency,” and “execution.” This opinion is not helpful to the Court, 

because Dr. Snyder fails to examine whether Qualcomm’s anticompetitive conduct affected the 

ability of its rivals to succeed on the metrics that he deems important. This opinion is also not 

proper expert testimony because his report discloses no methodology through which to assess 

any modem chip supplier, or any of the factors he claims are responsible for their failures. 

While Dr. Snyder may be an expert economist, he does not apply that expertise in an 

effort to assess whether Qualcomm’s conduct impacted rivals’ or customers’ incentives and 

marketplace outcomes. Instead, his report summarizes selected evidence and other witnesses’ 

conclusions and then asserts that the factors that he chose, but cannot define, explain the failures 

of Qualcomm’s rivals. This type of narrative “is properly presented through percipient witnesses 

and documentary evidence,” not through an evidentiary summation masquerading as expert 

testimony. Fujifilm Corp. v. Motorola Mobility LLC, No. 12-CV-03587-WHO, 2015 WL 

757575, at *27 (N.D. Cal. Feb. 20, 2015) (quoting In re Rezulin Prod. Liab. Litig., 309 F. Supp. 

2d 531, 551 (S.D.N.Y. 2004)). 

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Dr. Snyder also offers the opinion that the FTC’s allegations should be rejected because 

the overall performance of the modem chip industry is “strong.” This assertion is not based on 

any reliable methodology, or upon the application of any economic theories or principles to the 

facts of the case. Moreover, this opinion is not helpful to the Court because it is not probative of 

the FTC’s allegations that Qualcomm’s conduct affected Qualcomm’s rivals and competitive 

conditions in the industry. 

This Court should exclude Dr. Snyder’s opinions that the FTC’s claims are disproven by 

(i) the experiences of modem chip suppliers, and (ii) industry performance. Dr. Snyder’s views 

on these matters are not proper expert testimony, unreliable, and not helpful to the Court. 

I. STATEMENT OF RELEVANT FACTS 

Dr. Edward A. Snyder is one of nine experts, and one of four economic experts, retained 

by Qualcomm to offer an opinion in this case. Dr. Snyder is the Dean of the Yale School of 

Management and a professor of economics and management. Dr. Snyder considers his primary 

expertise to be industrial organization. Ex. 1 ¶ 4 (attached as Ex. 1). Dr. Snyder is not an expert 

in the modem chip industry, cellular technology, or patents. Ex. 2 at 6:19-7:16 (attached as Ex. 

2). 

Dr. Snyder provided a 368-page report (not including exhibits and attachments). His 

report does not address market definition or market power, and he does not address or dispute the 

economic theory underlying the opinions provided by the FTC’s experts. His report instead 

provides an extended narrative recounting Qualcomm’s marketplace outcomes, and the outcomes 

of thirteen other firms that at one time competed with Qualcomm. Ex. 1 ¶¶ 217-282 (recounting 

“Qualcomm’s experience”); id. ¶¶ 283-461 (relating “Outcomes for other modem chip 

suppliers”). Dr. Snyder claims that these discussions of firms’ experience are relevant to his 

principal assignment, which was to analyze the FTC’s claims, referred to as “Plaintiff’s 

Hypothesis.” Ex. 2 at 7:21-24, 8:6-14; Ex. 1 ¶ 7. 

As summarized by Dr. Snyder, “Plaintiff’s Hypothesis” is that “Qualcomm’s 

exclusionary conduct . . . reduced competition in the modem chip industry, altered industry 

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dynamics, and allowed Qualcomm to become more successful than it otherwise would have 

been.” Ex. 1 ¶ 21. Dr. Snyder purports to offer two opinions regarding “Plaintiff’s Hypothesis”: 

(i) his “analyses of modem chip suppliers do not support Plaintiff’s Hypothesis,” and (ii) his 

“analysis of industry performance directly contradicts Plaintiff’s Hypothesis.” See Ex. 1 ¶¶ 32, 

33.1

 Yet Dr. Snyder conceded that he did not actually test Plaintiff’s Hypothesis: he “didn’t get 

to that step” because he concluded that an alternative hypothesis “explained all of [the] outcomes 

that were cited as anticompetitive harm.” Ex. 2 at 67:7-9. Dr. Snyder’s alternative hypothesis, 

the “Industry Factors Hypothesis,” states that relevant industry factors “exert a strong influence” 

on the structure of the industry, and that the “success and failure of firms” he observed depends 

on three “firm-level factors”—foresight, investment efficiency, and execution. Ex. 1 ¶ 20. 

Dr. Snyder admitted that the Industry Factors Hypothesis and Plaintiff’s Hypothesis are 

not mutually exclusive. Ex. 2 at 35:15-19. Although he did not evaluate Plaintiff’s Hypothesis 

(i.e., whether Qualcomm’s conduct reduced competition and allowed Qualcomm to be more 

successful than it otherwise would have been), and although he acknowledged that Plaintiff’s 

Hypothesis and the Industry Factors’ Hypothesis are not mutually exclusive, Dr. Snyder 

concluded that Qualcomm’s conduct had “zero” impact on industry outcomes. Ex. 2 at 73:1-7. 

Dr. Snyder also offers the opinion that the modem chip industry has not been impaired by 

Qualcomm’s conduct. Ex. 1 ¶ 33. He bases this opinion on his analysis of “key measures of 

performance” which include “the pace of innovation, quality-adjusted prices, and overall benefits 

to consumers.” Id. ¶ 476; see generally Section VI (“Analysis of Industry Performance”). While 

Dr. Snyder concludes that the “industry has exhibited impressive performance on each 

dimension,” id. ¶ 33(b), he does not consider whether the industry might have performed better 

in the absence of Qualcomm’s anticompetitive conduct and admits that the industry analysis he 

 

1

 In addition, Dr. Snyder purports to offer the opinion that “industry factors and industrial 

organization principles exert a strong influence” on industry structure, competition among 

modem chip suppliers, modem chip suppliers’ successes and failures, and their relationships with 

OEM customers. Ex. 1 ¶ 31. 

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purportedly conducted “still leaves . . . a possibility that [industry performance in a but-for 

world] could have been yet more superior.” Ex. 2 at 19:21-23.

II. LEGAL STANDARD 

An expert’s “scientific, technical, or other specialized knowledge” may be admissible 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, 597 (1993); Apple, Inc. v. 

Samsung Elecs. Co., Ltd., No. 11-CV-01846-LHK, 2012 WL 2571332, at *1 (N.D. Cal. June 30, 

2012). Expert testimony must be (1) based upon sufficient facts or data, (2) the product of 

reliable principles and methods, and (3) the result of reliably applying those principles and 

methods to the facts of the case. Fed. R. Evid. 702. “In Daubert, the Supreme Court gave a nonexhaustive list of factors for determining whether scientific testimony is sufficiently reliable to 

be admitted into evidence, including: (1) whether the scientific theory or technique can be (and 

has been) tested; (2) whether the theory or technique has been subjected to peer review and 

publication; (3) whether there is a known or potential error rate; and (4) whether the theory or 

technique is generally accepted in the relevant scientific community.” Domingo ex rel. Domingo 

v. T.K., 289 F.3d 600, 605 (9th Cir. 2002) (citing Daubert, 509 U.S. at 593-94).

In determining whether expert testimony is sufficiently reliable, a court should consider 

whether the expert is “proposing to testify about matters growing naturally and directly out of 

research they have conducted independent of the litigation, or whether they have developed their 

opinions expressly for purposes of testifying.” Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 

1311, 1317 (9th Cir. 1995) (“Daubert II”). “[If] an expert did not conduct his or her own 

research, independent of the litigation, on the subject of the testimony, the district court must 

determine whether there exists any ‘objective, verifiable evidence that the testimony is based on 

scientifically valid principles.’” Domingo ex rel. Domingo, 289 F.3d 600, 605 (quoting Daubert 

II, 43 F.3d 1311, 1319). Even if an expert’s opinion is reliable, it will be inadmissible if it is 

unhelpful to the trier of fact. Daubert, 509 U.S. at 591-92. 

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A district court’s gate-keeping function applies to both bench trials and jury trials, despite 

the fact that “several courts in the Ninth Circuit have recognized [that Daubert’s] gatekeeping 

function is less pressing in the context of a bench trial.” Sierra Club v. Talen Montana LLC, No. 

CV 13-32-BLG-DLC-JCL, 2016 WL 11200732, at *3 (D. Mont. Mar. 25, 2016). “Nonetheless, 

while relaxed, the Daubert standards governing admissibility of expert testimony must still be 

met, even during a bench trial.” Id. (quoting Schilder Dairy, LLC v. DeLaval, Inc., 2011 WL 

2634251 *2 (D. Id. July 5, 2011)). 

III. ARGUMENT 

This Court should not consider either of Dr. Snyder’s two opinions that purport to reject 

“Plaintiff’s Hypothesis,” as neither opinion employs a reliable methodology. Dr. Snyder’s 

supposed “analyses of modem chip suppliers” does not attempt to assess whether Qualcomm’s 

conduct impacted rivals’ incentives or capabilities; instead it unjustifiably assumed that 

Qualcomm’s conduct was incapable of impacting any of the metrics that Dr. Snyder asserts are 

relevant. This unwarranted assumption is contradicted by peer reviewed publications and 

reasoned argument, and thus cannot form the basis for a reliable methodology. Moreover, Dr. 

Snyder offers no analysis of relevant modem chip suppliers’ “performance” that goes beyond 

compiling cherry-picked anecdotes, documents, and deposition testimony, and has no expertise 

that would allow him to do so. 

Dr. Snyder’s “analysis of industry performance” likewise discloses no methodology. 

Instead, Dr. Snyder merely asserts that the industry has performed “impressively” on certain 

metrics that he deems relevant. Dr. Snyder does not apply methods or principles within his 

expertise in reaching his conclusions about “industry performance” and his opinions are 

unhelpful to the Court because his observation that the industry is strong is not probative of the 

FTC’s allegation that the industry would have been stronger but for Qualcomm’s anticompetitive 

conduct. 

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A. This Court Should Exclude Dr. Snyder’s Opinion That his “Analyses of Modem 

Chip Suppliers” Contradicts the FTC’s Claims 

Section V of Dr. Snyder’s report purports to analyze three factors that he claims explain 

modem chip suppliers’ experience in the market: (i) foresight; (ii) investment efficiency; and (iii) 

execution. See generally Ex. 1 Section V (“Analysis of Modem Chip Supplier Performance”). 

The opinion Dr. Snyder bases on his discussion of these factors should be excluded, because it is 

not grounded in a generally accepted or reliable theory or methodology, and is instead nothing 

more than a factual narrative. 

1. Dr. Snyder’s Theory Is Untested, and His Methodology for Testing 

That Theory Is Unreliable 

Dr. Snyder’s theory that “the success and failure of firms depend on their foresight, the 

efficiency of their investments, and ability to execute,” Ex. 1 ¶ 20, fails to satisfy any of the 

indicia of reliability relevant to this Court’s Daubert analysis. See Domingo ex rel. Domingo, 

289 F.3d 600, 605; see also Wagner v. Cnty. of Maricopa, 673 F.3d 977, 989 (9th Cir. 2012) 

(withdrawn and superseded on other grounds, 747 F.3d 1048 (9th Cir. 2013), as explained on 

remand at 2014 WL 12701215 (D. Ariz., May 13, 2014)). Dr. Snyder’s theory has not been 

subjected to peer review and publication, as Dr. Snyder has conceded he could not identify any 

academic literature supporting his view that the three “firm-level factors”2 determine a firm’s 

success or failure in the modem chip industry. Ex. 2 at 90:1-10. Nor has Dr. Snyder identified 

any analogous industries in which these three factors have been employed to explain marketplace 

performance. And his theory has not been generally accepted in the relevant scientific 

community, as Dr. Snyder cannot identify a single other economist who has applied these three 

factors to a relevant analysis. Ex. 2 at 90:11-22. The lack of any peer reviewed or objective 

source to support Dr. Snyder’s theory indicates that Dr. Snyder failed to follow a valid, scientific 

 

2

 Ex. 1 ¶ 23 (referring to “firm-level factors” as “the ability of individual suppliers to forecast 

accurately, invest efficiently according to their forecasts, and execute the required engineering 

projects”). 

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method. See Domingo ex rel. Domingo, 289 F.3d 600, 606 (excluding expert where “there was 

no evidence of widespread acceptance of [the expert’s] theory”); Apple, Inc. v. Samsung Elecs. 

Co., Ltd., No. 11-CV-01846-LHK, 2012 WL 2571332, at *6 (N.D. Cal. June 30, 2012) 

(excluding expert’s apportionment of damages analysis in part because expert failed to supply 

evidence that his “calculations are based on a generally accepted, peer-reviewed method.”). 

Dr. Snyder discloses no reliable methodology for testing his theory that the “success and 

failure of firms” in the modem chip industry is determined by firms’ “foresight,” “investment 

efficiency,” and “execution,” rather than by some alternative factor. Indeed, Dr. Snyder 

conceded that these three factors “don’t explain the industry overall” and that other factors, such 

as scale and increased concentration among OEMs, also influence industry structure. Ex. 2 at 

27:3-8. Dr. Snyder performed no tests or analysis to control for other factors that might also 

explain a firm’s success or failure in the modem chip industry. See, e.g., Ex. 2 at 27:18-33:9 

(Snyder did not apply a formula or weighting system to analyze the impact of his three firm-level 

factors compared to other industry factors). See In re Ford Tailgate Litig., No. 11-CV-02953-

RS, 2015 WL 7571772, at *9 (N.D. Cal. Nov. 25, 2015) (opinion of engineering expert excluded 

where expert failed to “back up his opinions with reference to any meaningful testing, literature, 

or comparisons.”). 

Dr. Snyder provides no metrics that would allow him to reliably compare firms using his 

three factors. See Ex. 2 at 130:18-24 (“There wasn’t a single formula” used to calculate 

investment efficiency across firms); Ex. 2 at 131:9-12 (one cannot assign a value in terms of 

ranking each firm’s investment efficiency); Ex. 2 at 164:3-6 (the “metrics” that Snyder used to 

assess execution were “observable successes and failures,” but not “quantifiable in terms of . . . a 

dial, no.”). Indeed, he makes no attempt at all to quantify any of the attributes he purportedly 

studied. Instead, he summarized his findings in a qualitative “summary” of each firm’s 

foresight, investment efficiency, and execution. See, e.g., Ex. 1, Section V.C. 

Dr. Snyder could not even offer a generally accepted definition of the three factors, 

instead resorting to circular and overlapping definitions. See, e.g., Ex. 2 at 166:20-167:5 

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(assessment of execution success or failure consisted of “go[ing] to the record and see[ing] if a 

firm has executed”); Ex. 2 at 93:14-23 (“Q. Is there a widely accepted definition of foresight in 

your field? A. As I said, I’m – I’m identifying that as a way to emphasize the importance of 

strategic decisions. . . . [N]obody who’s really studied this industry would fail to understand the 

importance of foresight and you take examples that are clear. Intel saying I’m going to disrupt 

the industry with WiMAX. That’s their judgment based on some foresight.”); Ex. 2 at 149:4-

150:2 (investment efficiency is influenced by “the speed with which a modem chip supplier can 

make its innovations available to OEMs,” which is an overlapping consideration in assessing 

“execution”); Ex. 1 ¶ 167. His definition of “foresight” appears indistinguishable from the 

untestable theory of “good luck.” See Ex. 2 at 97:4-15 (“It’s not always a perfect look back to 

say that was based on their judgment or whether they were either lucky or unlucky. . . . [O]f 

course, in a dynamic environment, one doesn’t know and one cannot always claim that a bad 

outcome is due to bad luck or a good outcome is due to good luck.”). 

Indeed, Dr. Snyder admitted that he employed no testable methodology in his analysis, 

asserting that “it doesn’t take a methodology” to assess execution: “I’m not sure what the term 

methodology adds. You can observe whether a firm is able to execute based on whatever 

particular set of expectations have been made and the set of expectations that they have taken on. 

It’s identifiable. I will be able to supply these chips with this quality and in this volume. So it’s 

identifiable. It doesn’t take a methodology to figure out if somebody met that.” Ex. 2 at 164:16-

165:1. Dr. Snyder’s concession that he has no methodology for assessing “execution” renders 

his testimony unreliable. In re Ford Tailgate Litig., 2015 WL 7571772, at *9 (opinion of 

damages expert excluded because “nothing in either Daubert or the Federal Rules of Evidence 

requires a district court to admit opinion evidence which is connected to existing data only by the 

ipse dixit of the expert.”) (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)). 

Moreover, Dr. Snyder’s concession that execution is so obvious that “it doesn’t take a 

methodology to figure out,” shows that he is not offering an opinion based on “scientific, 

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technical, or other specialized knowledge” that will be helpful to the trier of fact. Fed. R. Evid. 

702. 

Dr. Snyder also admitted that his technique of assessing execution has no known error 

rate because it is both untested and untestable. See, e.g., Ex. 2 at 165:22-166:19 (“The precise 

way that it’s measured or assessed, that, I would agree, could vary across economists who take 

on that task. I think I may – I’m the only one who’s done it in this case, so it’s a little, you know, 

I don’t have a reference to point to because I’ve done it and as far as I can tell, no one else has.”). 

Dr. Snyder similarly failed to offer a reliable methodology for assessing foresight and 

investment efficiency. He stated that an assessment of “foresight” entails “assess[ing] the 

outcomes of strategic decisions in a dynamic environment.”3

 Dr. Snyder did not analyze every 

strategic decision that each firm made4; instead, he considered only “the ones that had the most 

influence on whether [modem chip suppliers] were able to sell particular products to particular 

customers.” Ex. 2 at 102:25-103:6. Yet Dr. Snyder could not articulate an objective or reliable 

method to ensure that he captured the strategic decisions “with the most influence” for his 

foresight analysis. Ex. 2 at 112:5-12 (“Well, my -- my assignment is to evaluate Professor 

Shapiro’s claims, so I don’t feel like I’ve missed anything. I’ve go[ne] beyond his analysis. Are 

there some things -- I think this is a legitimate question -- are there some things where it is not 

possible to get enough insight into a particular set of decisions? Or maybe not enough or not as 

much as I would like? Yes.”). For his investment efficiency analysis, Dr. Snyder focused on 

“the big differences” among firms’ investment efficiency, but conceded that “there are more 

precise ways to measure efficiency.” Ex. 2 at 125:6-23. 

This Court should exclude all opinions Dr. Snyder offers based on the “analysis of 

modem chip supplier performance” described in Section V of his report, as Dr. Snyder failed to 

use or describe a generally accepted or peer-reviewed methodology to analyze modem chip 

 

3

 Ex. 2 at 95:12-14. 

4

 Ex. 2 at 99:11-17. 

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supplier performance, and failed to offer a theory to explain modem chip suppliers’ performance 

that can be tested using a reliable methodology. 

2. Dr. Snyder Lacks the Relevant Expertise to Analyze Modem Chip 

Suppliers’ Performance and Simply Provides a Narrative 

Section V of Dr. Snyder’s report should also be excluded because Dr. Snyder lacks the 

relevant qualifications to assess modem chip supplier performance and instead summarizes 

factual evidence without providing any additional expert insight. 

Section V of Dr. Snyder’s report recounts his “analysis of modem chip supplier 

performance,” namely that of Qualcomm and 13 of its rivals. Dr. Snyder does not attempt to use 

the evidentiary record to assess an issue in which economists have expertise, such as whether a 

recognized model of firm behavior is consistent with observed marketplace outcomes. Instead, 

Dr. Snyder purports to assess directly whether a particular modem chip supplier “performed” 

better than another, based on nothing more than deposition testimony and documents that the 

trier of fact can assess just as well as Dr. Snyder. Dr. Snyder is not an expert in cellular 

technology or the modem chip industry. Ex. 2 at 6:23-7:16. Dr. Snyder has never testified in a 

case involving the modem chip industry, and it does not appear that he has ever published an 

academic paper on the modem chip industry. See Ex. 1 ¶ 5, App’x A (curriculum vitae) & B-1 

(recent testimony). Dr. Snyder’s lack of relevant expertise in the modem chip industry and 

cellular technology renders his opinions about modem chip supplier “performance” unreliable. 

See Lucido v. Nestle Purina Petcare Co., 217 F. Supp. 3d 1098, 1103 (N.D. Cal. 2016) 

(testimony excluded where expert’s opinion did not call on her specialized knowledge, and she 

was asked to simply report information gained from others); Mullins v. Premier Nutrition Corp., 

178 F. Supp. 3d 867, 900 (N.D. Cal. 2016) (“Even the most qualified expert may not offer any 

opinion on any subject; the expert’s opinion must be grounded in his or her personal ‘knowledge, 

skill, experience, training, or education.’”). 

Instead of applying any relevant expertise or a reliable methodology to assess chip 

suppliers’ performance, Dr. Snyder’s simply provides a narrative summary of documents and 

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deposition testimony. But “[a]n economist has no special skill in reading documents and relating 

them to actual behavior.” George J. Stigler, What Does an Economist Know?, 33 J. Legal Educ. 

311, 311 (1983) (attached as Exhibit 3). Dr. Snyder employs no relevant expertise when he 

summarizes Qualcomm’s press releases and public statements5

 to tout Qualcomm’s triumphs and 

assert the “superiority of Qualcomm’s products over those of competing chip suppliers.” Ex. 1 ¶ 

239. See generally Ex. 1, Section V at 121-171, ¶¶ 217-282 (offering a 50-page litany of 

Qualcomm’s “success”). Likewise, Dr. Snyder brings to bear no relevant expertise in cellular 

technology or the modem chip industry when offering a 140-page narrative summarizing 

documents and testimony that purports to provide an “analysis” of each of Qualcomm’s rivals’ 

“foresight,” “investment efficiency,” and “execution.” See generally Ex. 1, Section V at 171-

317, ¶¶ 284-461. Such testimony is inadmissible. See Fujifilm Corp., 2015 WL 757575, at *27 

(“Where expert testimony simply rehash[es] otherwise admissible evidence about which [the 

expert] has no personal knowledge, such evidence—taken on its own—is inadmissible.”) 

(internal quotation marks and citations omitted); accord Highland Capital Mgmt. L.P. v. 

Scheider, 379 F. Supp. 2d 461, 468-69 (S.D.N.Y. 2005).

An expert is entitled to explain the facts upon which his opinion is based, but here, Dr. 

Snyder offers no opinion beyond the facts he summarizes. He does not bring to bear any 

technical expertise to add to his summary of the documents. He did not conduct any statistical 

tests. Ex. 2 at 68:18-21. He did not advance a theoretical model and explain how the observed 

marketplace outcomes fit the model. Instead, he explained his report was simply “presenting the 

information and . . . checking it against a very basic hypothesis.” Ex. 2 at 68:21-69:1. But no 

expertise is necessary to perform what Dr. Snyder refers to as “checking,” because Dr. Snyder 

simply parrots statements that the trier of fact can assess just as well as Dr. Snyder. For 

 

5 See e.g., Ex. 1 ¶ 229 (“According to Qualcomm’s 1996 10-K, CDMA technology ultimately 

delivered increased capacity (10 to 20 times compared to analog systems, in contrast to the 

threefold improvement offered by GSM), higher quality of voice and data transmission, fewer 

dropped calls, enhanced privacy, lower power consumption and extended talk time, lower 

infrastructure costs due to fewer cells, and easier transition from analog to digital than TDMA.”). 

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example, Dr. Snyder’s “analysis” of 

 Dr. Snyder made no attempt to recreate the analysis or to 

apply it to the 14 modem chip suppliers that he purported to analyze. Ex. 2 at 127:18-128:7; 

143:19-22; 144:21-25. He merely quoted the document to “confirm” his view “that efficiency of 

investment differed and was important.” Ex. 2 at 127:21-22. This is not a conclusion that 

requires expertise, or one that would be helpful to the Court. In re Rezulin Products Liab. Litig.,

309 F. Supp. 2d 531, 551 (excluding expert’s narrative of events where expert’s “glosses” on the 

narrative were “simple inferences drawn from uncomplicated facts”). 

Because Dr. Snyder “does no more than counsel for [Qualcomm] will do in argument, 

i.e., propound a particular interpretation of [Qualcomm’s and its rivals’] conduct,” his testimony 

related to Section V of his report should be excluded. In re Rezulin, 309 F. Supp. 2d 531, 551.6

B. Dr. Snyder Failed to Assess Whether Qualcomm’s Conduct Affected Its Rivals’ 

Performance 

Dr. Snyder’s self-described task in this case was to analyze whether Qualcomm’s conduct 

caused anticompetitive harm. Ex. 1 ¶ 7; Ex. 2 at 7:21-24, 8:6-14. By Dr. Snyder’s own 

admission, he did not test that question. As Dr. Snyder explained, he assessed Qualcomm’s 

rivals’ performance based on three attributes, but never considered (or tested) the possibility that 

Qualcomm’s conduct affected its rivals’ performance on any or all of these attributes.7

 Dr. 

 

6

 The arguments in this section also apply to Sections VII.A-VII.C of Dr. Snyder’s Report, which 

merely rehashes his modem chip supplier narratives from Section V for specific suppliers 

mentioned in Prof. Carl Shapiro’s Expert Report. See generally Ex. 1 ¶¶ 499-521. 

7 Ex. 2 at 70:23-71:12 (Q. “[I]f it were the case that . . . Qualcomm’s conduct did affect modem 

chip suppliers, foresight, their investment decisions and their execution, how, if at all, would that 

change your analysis? A. I don’t have an opinion about that given I haven’t seen any evidence 

that would indicate the nature of that relationship. . . . And I haven’t seen any claim by the 

Federal Trade Commission or Professor Shapiro about that relationship or potential relationship. 

So I haven’t thought about it given I haven’t seen it raised by plaintiff or Professor Shapiro....”). 

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Snyder’s failure to consider whether Qualcomm’s conduct affected the rivals’ attributes he 

supposedly analyzed renders his opinions irrelevant and unreliable. 

Dr. Snyder’s analysis rests on a fundamental misunderstanding of the claims at issue in 

this case. The FTC alleges that Qualcomm has engaged in a pattern of exclusionary conduct that 

harmed consumers and impaired its rivals’ ability to invest, innovate, and become more effective 

competitors. See Order Denying Motion to Dismiss at 34-35, June 26, 2017, ECF No.134 (FTC 

adequately alleged harm to competition by pleading, among other things, that Qualcomm’s 

supra-competitive royalty rates reduce “the ability and incentive of competitors to invest and 

innovate.”).8 The FTC retained Prof. Carl Shapiro to “provide an economic analysis of the likely 

competitive effects of Qualcomm’s commercial practices that are the subject of the FTC’s 

complaint.” Shapiro Report (attached as Ex. 4) ¶ 7.9

 Prof. Shapiro concluded that Qualcomm’s 

conduct could harm competition by reducing its rivals’ incentives and ability to invest and 

execute. For example, Prof. Shapiro concluded that Qualcomm’s “no license-no chips” policy 

reduced rivals’ output and “discouraged investment by Qualcomm’s modem-chip rivals.” Ex. 4 

¶ 9; see also id. ¶¶ 300-301. Likewise, Prof. Shapiro concluded that Qualcomm’s refusal to offer 

licenses to its modem chip rivals on FRAND terms harmed competition “to the extent that rivals’ 

inability to obtain a license from Qualcomm on reasonable terms discourages investment.” Ex. 4 

¶ 327. Prof. Shapiro further concluded that Qualcomm’s exclusivity payments to Apple 

weakened Qualcomm’s modem-chip rivals ability to execute on plans to supply Apple, and 

“delayed Intel’s entry into the market for Premium LTE modem chips and thus prolonged 

Qualcomm’s monopoly power in that market.” Ex. 4 ¶ 9. 

 

8 See also Complaint ¶ 138 (“By raising OEMs’ all-in costs of using competitors’ baseband 

processors, Qualcomm’s conduct has . . . diminished OEMs’ demand for those processors, 

reduced competitors’ sales and margins, and diminished competitors’ ability and incentive to 

invest and innovate.”); id. ¶ 130 (“Qualcomm’s exclusive agreements with Apple . . . 

significantly impeded the development of other baseband processor suppliers into effective 

competitors to Qualcomm.”). 

9

 Prof. Shapiro is also offering opinions on market definition and monopoly power. 

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Ignoring these allegations that Qualcomm’s conduct impaired rivals’ ability to invest and 

execute, Dr. Snyder simply did not consider the possibility that Qualcomm’s conduct affected 

rivals’ performance. Ex. 2 at 70:23-71:12. Dr. Snyder claims not to have seen any claim raised 

by the FTC or Prof. Shapiro indicating that Qualcomm’s conduct might have impaired rivals’ 

ability to invest and execute, and thus he assumed that the “firm-level factors” that he used to 

assess modem chip suppliers’ performance – foresight, investment efficiency, and execution – 

were unaffected by Qualcomm’s conduct. Ex. 2 at 43:5-23 (“I identified the industry factors that 

I believed would be not influenced by the conduct[.]”). Yet Dr. Snyder could not cite any 

academic literature supporting the counterintuitive proposition that firms’ foresight, investment 

efficiency, and execution cannot be affected by a rival’s conduct. Ex. 2 at 44:22-47:6. Indeed, 

Dr. Snyder conceded that the relevant academic literature suggests the opposite—a rival firm’s 

conduct can affect investment decisions—including “papers that deal with the potential 

anticompetitive effects of contracts on rivals not making investments, not enter, not reaching 

scale.” Ex. 2 at 46:13-47:6. Dr. Snyder even stated that he would not rule out such a 

relationship. Ex. 2 at 71:14-16 (“I don’t want to completely rule it out because I haven’t 

encountered an argument along those lines.”). The lack of support for Dr. Snyder’s assumption 

that Qualcomm’s conduct does not affect rivals’ performance is itself a basis for exclusion. 

Domingo ex rel. Domingo, 289 F.3d at 606 (excluding expert testimony where “there was no 

evidence of widespread acceptance of [the expert’s] theory”). 

Moreover, Dr. Snyder’s unwarranted assumption renders his opinion unhelpful to the 

Court. The fact that Dr. Snyder identified “firm-level factors” that he claims explain 

marketplace outcomes is not helpful to the Court if those firm-level factors are themselves 

influenced by Qualcomm’s conduct.10 For example, Dr. Snyder’s conclusion that Firm A’s 

 

10 Cf. Daniel L. Rubinfeld, Reference Guide on Multiple Regression, in Reference Manual on 

Scientific Evidence 303, 325 (Federal Judicial Center ed., 3d ed. 2011) (“An important 

assumption in multiple regression analysis is that the error term and each of the explanatory 

variables are independent of each other.”) (attached as Exhibit 5). 

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failure to invest efficiently led to its exit supports “Plaintiff’s Hypothesis” if Qualcomm’s 

conduct diminished Firm A’s ability to invest efficiently. The relevant issue, as alleged by the 

FTC, is whether Qualcomm’s conduct affected its rivals (including rivals’ ability and incentive 

to invest and innovate). Dr. Snyder did not even purport to investigate this question, and thus 

has no reliable basis for offering a view that “Plaintiff’s Hypothesis” is wrong. See Domingo ex 

rel. Domingo, 289 F.3d at 607 (“The reasoning between steps in a theory must be based on 

objective, verifiable evidence and scientific methodology of the kind traditionally used by 

experts in the field.”). 

C. Dr. Snyder’s Assertion That the Modem Chip Industry Shows “Strong 

Performance” Is Not Probative of “Plaintiff’s Hypothesis” 

This Court should exclude Dr. Snyder’s opinion that “industry performance directly 

contradicts Plaintiff’s Hypothesis,” Ex. 1 ¶ 33, because Dr. Snyder fails to provide any logical or 

verifiable “reasoning between steps in [his] theory. Domingo ex rel. Domingo, 289 F.3d at 607. 

Dr. Snyder provides neither a theoretical foundation nor a cognizable methodology that allow 

him to assess whether “industry performance” disproves the FTC’s allegations that Qualcomm 

has market power, that Qualcomm’s challenged conduct contributed to its market power, or that 

competitive harm has occurred.11 Thus, assuming arguendo that the modem chip industry 

performance has experienced “strong performance,” this circumstance is not probative of 

“Plaintiff’s Hypothesis” that “Qualcomm’s exclusionary conduct . . . reduced competition in the 

modem chip industry, altered industry dynamics, and allowed Qualcomm to become more 

successful than it otherwise would have been.” See Ex. 1 ¶ 21. 

 

11 As Dr. Shapiro explained, “Industries that are growing and where technology is advancing are 

certainly not immune from antitrust problems. To suggest otherwise is antithetical to a long 

history of antitrust enforcement in technology-driven industries in the United States, from the 

Standard Oil case in 1911 to the Microsoft case 20 years ago. A central danger in such industries 

is that a powerful incumbent will stifle competition and retard innovation in an effort to protect 

its position. These effects can arise in the context of ongoing innovation.” Shapiro Rebuttal 

Report (attached as Ex. 6) ¶ 258. 

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Dr. Snyder determined that the modem chip industry has experienced “strong 

performance” by: (1) looking at various metrics (e.g., modem chip price, data speed, and 

consumer welfare studies), and (2) concluding that those metrics are “strong.” See generally Ex. 

1 Section VI at 318-328, ¶¶ 475-498. While Dr. Snyder has no relevant expertise in assessing 

technical issues such as data speed, no one disputes that the modem chip industry has 

experienced “innovation,” or that “average selling prices for modem chips” have declined over 

time. Ex. 1 ¶¶ 477, 485. But Dr. Snyder discloses no peer-reviewed literature, nor methodology, 

nor theoretical foundation that suggests that the observed level of “performance” in the modem 

chip industry indicates an absence of anticompetitive effects. Nor does he provide a 

methodology or reasoned argument for suggesting that the observed performance contradicts the 

hypothesis that Qualcomm’s challenged conduct reduced competition and contributed to 

Qualcomm’s market power. 

Indeed, Dr. Snyder does not offer any view on what the industry would look like without 

Qualcomm’s challenged conduct, although he concedes that such an analysis would be necessary 

to assess Plaintiff’s Hypothesis. Ex. 2 at 14:13-15:6 (“[M]y understanding as an economist [is] 

that the [Plaintiff’s] hypothesis should be evaluated in terms of, one, the at-issue conduct is in 

place versus the at-issue conduct is not in place but other relevant industry factors remain.”). Dr. 

Snyder did not attempt to conduct this analysis, or even explain how one would begin to 

undertake it. As a result, he admits that his review of evidence related to “industry performance” 

“still leaves . . . a possibility that [industry performance without Qualcomm’s conduct] could 

have been yet more superior.” Ex. 2 at 19:21-23; see also Ex. 2 at 23:3-5 (“I think there’s a lot 

of value in doing this but it’s still, as I said, leaves some room to say it could have been yet 

better.”). In order to test what Dr. Snyder refers to as “Plaintiff’s Hypothesis,” he would need to 

offer a view on whether the industry could have experienced greater innovation or larger price 

decreases in the absence of Qualcomm’s exclusionary conduct. Dr. Snyder’s failure to consider 

this question renders his methodology for evaluating industry performance unreliable, and his 

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conclusions from this analysis irrelevant under Rule 702. Fed. R. Evid. 702 (expert testimony 

may be admissible if it “will help the trier of fact . . . determine a fact in issue”). 

IV. CONCLUSION 

For the foregoing reasons, the Court should order that Qualcomm cannot offer opinions 

or testimony related to: 

 Dr. Snyder’s testimony or opinion relating to the subject matter and issues addressed in 

Section V of Dr. Snyder’s expert report (paragraphs 213-474), in connection with any 

assertion that Qualcomm’s conduct reduced (or did not reduce) competition in the 

modem chip industry, or altered (or did not alter) industry dynamics, or allowed (or did 

not allow) Qualcomm to become more successful than it otherwise would have been

 Dr. Snyder’s testimony or opinion relating to the subject matter and issues addressed in 

Section VI of Dr. Snyder’s expert report (paragraphs 475-497), in connection with any 

assertion that Qualcomm’s conduct reduced (or did not reduce) competition in the 

modem chip industry, or altered (or did not alter) industry dynamics, or allowed (or did 

not allow) Qualcomm to become more successful than it otherwise would have been. 

 Dr. Snyder’s opinion that modem chip suppliers’ successes and failures are “determined” 

by their foresight, investment efficiency, and execution, as defined by Dr. Snyder. See, 

e.g., Ex. 1 ¶¶ 31, 143-178, 186; 213-474 (Section V). 

Dated: August 30, 2018 

Respectfully submitted, 

 /s/ Jennifer Milici

JENNIFER MILICI 

JOSEPH R. BAKER 

WESLEY G. CARSON 

MIKA IKEDA 

DANIEL MATHESON 

GEOFFREY M. GREEN 

Attorneys for Plaintiff Federal Trade 

Commission 

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