United States v. H & R Block, Inc. , 831 F. Supp. 2d 27 ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA F I L E D
SEP 06 2011
UNITED STATES OF AMERICA,
C|erk, U.S. District ana
Plaintiff, Bankruptcy Courts
v. Civil Action No. ll-00948 (BAH)
H&R BLOCK, INC., et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
The United States, through the Antitrust Division of the Department of Justice (the
"‘DOJ" or the "plaintiff’), brought this civil case to enjoin the proposed acquisition of a digital
do-it-yourself tax preparation company known as TaxACT by H&R Blocl<, another company
that sells digital do-it-yourself tax preparation products as well as provides other tax preparation
services.l A preliminary injunction hearing in this case is scheduled for September 6, 2011, and
the plaintiffhas filed a motion in limine to exclude evidence of an email survey commissioned
by the defendants and the portions of a defendants’ expert opinion that relies upon the survey.
F or the reasons that follow, the Court denies the motion in limine.z
I. BACKGROUND
The DOJ filed this action on May 23, 201 l, seeking to enjoin Defendant H&R Block,
Inc. from acquiring Defendant 2SS Holdings, Inc. ("TaxACT"), which sells digital do-it-yourself
1 The Court has subject matterjurisdiction to hear this suit under 15 U.S.C. § 25, and 28 U.S.C. §§ l33l, 1337 and
1345.
2 The plaintiffinitially filed an additional motion in limine to exclude evidence ofdefendants’ guarantee to maintain
Tax/\CT’S current prices for three years following the acquisition. See ECF No. 44. The plaintiff withdrew that
motion at oral argument on September 2, 201 l.
tax preparation products marketed under the brand name TaxACT. Compl. jj l0. Defendant TA
IX, L.P. ("TA”), owns a two-thirds interest in TaxACT.3 Id. jj l l.
According to the Complaint, last year an estimated 35 to 40 million taxpayers filed their
taxes using digital do-it-yourself tax preparation products ("Digitial DIY Tax Preparation
Products"'). Id. jj l. In the U.S. Digital DIY Tax Preparation Product market, the three largest
firms collectively have about 90% of the market share. Ia’. The leading company in the market
is Intuit, lnc., the maker of"”l``tirboTax." Ia'. il 3. H&R Block’s proposed acquisition of
TaxACT, if allowed to proceed, would combine the second~ and third-largest providers in the
market - i.e., H&R Block and TaxACT, respectively. Id.
The Complaint alleges that TaxACT is a "maverick" competitor that has a history of
"disrupting" the Digital DIY Tax Preparation market and has forced its competitors, including
H&R Block and lntuit, "to offer free products and increase the quality of their products for
American taxpayers." Id. jj 28. The Complaint alleges that TaxACT has aggressively competed
with H&R Block and lntuit by providing high-quality products and services at low cost. See id.
jlil 30-40. The DOJ alleges that the acquisition of TaxACT by H&R Block would reduce
competition in the industry and make anticompetitive coordination between the two maj or
remaining market participants - H&R Block and lntuit - substantially more likely. Ia'. {Hl 40-49.
The DOJ alleges tliat therefore the proposed acquisition violates Section 7 of the Clayton Act, 15
U.S.C. § l8, and accordingly it seeks an injunction blocking H&R Block from acquiring
T@XACT. 1a m 53-55.
3 2nd Story Software, Inc. ("ZSS") is a wholly-owned subsidiary ofZSS Holdings, lnc., which is the entity being
purchased by H&R Block. Declaration of Lance Dunn, dated l\/lay 27, 201 l ("Dunn Decl."), M 2, 4. Both 2SS and
2SS Holdings, Inc. share the same address in Cedar Rapids, Iowa.
The defendants dispute that the appropriate product market is Digital DIY Tax
Preparation products. but argue that the relevant market instead consists of "all methods of tax
preparation for the U.S. federal and state income taxes." Report of Dr. Christine Siegwarth
Meyer. DX00l7-006, at 2. Furthermore, even assuming arguendo that the plaintiffs alleged
market definition were correct, the defendants deny that the transaction would result in
anticompetitive effects because, inter alia, "H&R Block and TaxAct are not close substitutes and
the merger is likely to lead to substantial, incremental, merger-specific efficiencies." Joint Pre-
Hearing Statement at 4.
A pre-hearing conference in this matter, including oral argument on the motion in limine,
was held on September 2, 2011.
II. DISCUSSION
The plaintiff has moved, pursuant to F ederal Rules of Evidence 702 and 703, to exclude
evidence of an email survey of defendants’ customers and to limit defendants’ expert opinion to
the extent that it relies on this survey ('the "201 1 email survey"). Pl.``s l\/lem. in Supp. of Pl.’s
l\/lot. to Exc1ude the 2011 Litigation Survey and Limit Defs.’ Expert Report ("Pl.’s l\/lem.") at 1-
2. The plaintiffcontends the survey’s "methodology falls far short of the requirements of
Federal Rules of Eviderice 703 and 702 because: (l) it fails to ask a question relevant to this
proceeding; (2) it suffers from extraordinary non-response bias, with response rates far below
what courts have found necessary to establish reliability; and (3) the response options provided
are leading and fail to discourage guessing." Id. at 2. For the reasons below, the Court declines
to exclude the evidence or to limit the expert’s opinion.
A. Standard of Review
"Under Rule 702, a trial court may only admit expert testimony that is both relevant and
reliable." Harrz``s' v. Koenz``g, No. 02-618, 2011 WL 2531257, at *l (D.D.C. June 27, 2011) (citing
Kznnho Ti)'e C0. v. Carntz'chael, 526 U.S. 137, 141 (1999); Dauberl v. Merrell Dow
Pharmacezitz``cals, Inc., 509 U.S. 579, 589 ('1993)). "Courts take a flexible approach to deciding
Rule 702 motions and have ‘broad discretion in determining whether to admit or exclude expert
testimony." ]d. (quoting U.S. ex )'e/. Miller v. Bill Harberf [nl’l Conslr.. Irzc'., 608 F.3d 87l, 895
(D.C. Cir. 2010) (internal citation omitted). "In considering Rule 702 motions, the court
assumes only a ‘limited gate-keep[ing] role’ directed at excluding expert testimony that is based
upon ‘subjective belief’ or ‘unsupported speculation.’” Id. (quoting Ambrosim`` v. Labarraque,
101 F.3d 129, 135-36 (D.C. Cir. 1996)). 1n addition, "the importance ofthe trial court’s
gatekeeper role is significantly diminished in bench trials . . . because, there being no jury, there
is no risk of tainting the trial by exposing a jury to unreliable evidence." Whitehouse Hotel Lla'.
Partnershl'p v. Comm ``r of Inte)'nal Rei'emze, 615 F.3d 321, 330 ('5th Cir. 2010). "The party
seeking to introduce expert testimony must demonstrate its admissibility by a preponderance of
the evidence." Harris, 2011 WL 2531257, at *l (citing Daubert, 509 U.S. at 592 n.10).
Under Rule 703, the facts or data underlying an expert’s opinion "need not be admissible
in evidence in order for the opinion or inference to be admitted" if the facts or data are "of a type
reasonably relied upon by experts in the particular field." Fed. R. Evid. 703. 1n addition, such
"facts or data that are otherwise inadmissible" may be disclosed by the proponent of the opinion
if their probative value substantially outweighs any prejudicial effect. Id.
B. Background Regarding the 2011 Email Survey
ln late April 201 1, following the 201 1 tax season, the defendants commissioned
Directions Research, a market research firm, to conduct an lnternet-based survey of TaxACT``s
customers. GX 604. According to the defendants, during the investigation of the transaction, the
DOJ did not accept the defendants’ evidence of an "extremely low switching between the
Defendants’ products" as an appropriate proxy for diversion - i.e., the govemment contended
that current switching rates are not necessarily predictive of how TaxACT customers would react
to a price increase or functionality decrease. Defs.’ Mem. in Opp’n to Pl.’s Mot. ln Limine
("Defs.’ l\/Iem.") at 3. The survey was therefore initiated to respond to a question raised by the
DOJ - namely, "how TaxAct consumers would react to a price increase, service decrease or
functionality decrease in the TaxAct products." Id. The survey asked one primary question: "If
you had become dissatisfied with TaxACT’s price, functionality or quality, which of these
products or services would you have considered using to prepare your federal taxes‘?" GX 604
(Results of the 201 1 email survey); GX623 (App’x 2 to Report ofDr. Dhar). The survey then
offered the respondents a list of eleven options, including other products or services, from which
to choose and instructed them to select all applicable options. Id. The list of options that
respondents were given varied somewhat depending on the respondents’ filing status and the
payments they had made for their 2011 tax returns.‘l Id. A follow-up question asked the
respondents to narrow their selections to a single choice. Ia’.
4 The response options varied among four different categories of filers, which are discussed further below. For
example, the list of options presented to f``ilers who completed a free federal tax return and no state retum were: "I
would prepare myselt``without help," "TurboTax Free Edition," "H&R Block at Home Free Edition," "Free TaxUSA
Free Edition," "Complete Tax Free Basic," "An Accountant,” "1 would use a product on FFA [i.e., Free File
Alliance]," "TaxSlayer Free Edition," "Jackson Hewitt Free Basic," "Tax$imple Free Basic," and "Other." GX604
at 2.
The research firm sent over 70,000 surveys via email to a statistically-random selection
of 'l``axACT customers inviting them to participate in the survey. Declaration of Tina Ruddy,
dated August 24, 201 1 ("Ruddy Decl.") 1111 9, 10. Survey respondents were asked screening
questions to determine their membership in one of four categories of customers: (1) those who
paid to use TaxAct’s products for filing both federal and state tax returns (denominated in the
survey report analysis by Directions Research as "Paid Fed/Paid State"); (2) those who paid to
use TaxAct’s federal return product but not for filing the state return ("Paid Fed/No State"); (3)
those who used TaxAct’s free product for filing a federal return and paid to use a TaxAct product
to file a state return ("Free Fed/Paid State"); and (4) those who used TaxAct’s free product for
filing a federal return but not for filing the state return ("Free Fed/No State").§ GX604 (Results
of the 201 1 email survey).
A total of l,089 customers responded to the survey. Id. at 2-3. The response rates for the
four categories of customers were: (1) 2.45% for paid federal / paid state filing (422); (2) 0.6%
for paid federal / no state filing (182); (245); (3) 2.08% for free federal / paid state filing; and (4)
1.7% for free federal / no state filing (240). Ia’.; see also Pl.’s Mem. at 3.
Defendants’ expert, Dr. Christine Siegwaith Meyer, summarized the results of the survey
as follovvs:
[A] survey of TaxACT customers indicates that few would switch to H&R Block At Home in the event that
they were satisfied with TaxACT. 1n each of the four groups, the comparable HRB product was neither the
first nor second most likely alternative tax products for the respondents. The percentage of TaxACT
customers that would switch to H&R Block At l~lome ranged from 4 to 10 percent, with a weighted average
of only 6 percent. lnstead, in each group, pen-and-paper and TurboTax were the two options with the
5 By contrast to federal tax returns, TaxAct does not provide free state return preparation software but does offer
free electronic filing of state returns to those customers who purchase a TaxAct-branded desktop software product
available at Staples retail stores. Report of Dr. l\/leyer 1111 191-92. The Court understands the survey’s category for
"No State" to cover those respondents who did not purchase TaxAct’s state return preparation software from Staples
or any other source.
highest responses. ln only one ofthe four groups was HRB the third response lnstead_ Free TaxUSA (Tax
Hawk) was a more prevalent choice than HRB for three ofthe four groups.
Report of Dr. l\/leyer, DX0017-042 (footnotes omitted). Based upon this analysis of the results,
Dr. Meyer opined that:
This further indicates that HRB is not a particularly close competitor to TaxACT. Following the merger,
consumers who are dissatisfied with TaxACT will have numerous other choices to which they can and
would turn, including TurboTax, pen-and-paper, other software products, and assisted tax preparation.
Ia’.
C. Analysis
ln order to admit expert testimony under Rule 702, the Court must find that it is "relevant
and reliable." Kumho Tire Co., 526 U.S, at 141; Daubert, 509 U.S. at 589. "ln general, Rule
702 has been interpreted to favor admissibility." Khaz``rkhiva v. Obczma, No. 08-1805, 2011 WL
2490960, at *7 (D.D.C. May 27, 2011) (citing Daz/berl, 509 U.S. at 587_; Fed. R. Evid. 702
Advisory Committee’s Note (2000) ("A review of the caselaw after Daubert shows that the
rejection of expert testimony is the exception rather than the rule.")). "The adversarial system
remains the ‘traditional and appropriate’ mechanism for exposing ‘shaky but admissible
evidence.’ Id. (citing Fed. R. Evid. 702 Advisory Committee’s Note (2000) (quoting Daubert,
509 U.S. at 596)).
Facts or data underlying an expert’s opinion that are "of a type reasonably relied upon by
experts in the particular field" need not be admissible in evidence in order for the opinion or
inference to be admitted. Fed. R. Evid. 703. Regarding survey results in particular, technical
and methodological deficiencies in a survey generally go to the weight of`` the evidence, not the
admissibility, unless the deficiencies are so substantial as to render the survey unreliable. See
Unz``v. ofKan. v. Sz'nks, No. 06-2341, 2008 WL 755065, at *3 (D. Kan. l\/lar. 19, 2008) (discussing
customer confusion survey in trademark case).
As discussed in more detail below, having reviewed the report of defendants’ expert, Dr.
Christine Siegwarth l\/Ieyer, the Court finds that Dr. l\/Ieyer’s anticipated testimony regarding the
201 1 email survey meets the criteria for admissibility. Dr. Meyer is an accomplished economist
with a Ph.D. in economics from the l\/Iassachusetts lnstitute of Technology. See DX0017, Ex. l.
Her conclusions regarding the level of competition between TaxACT and H&R Block, as
expressed in her report, are not based solely upon the results of the survey to which the plaintiff
objects. See DX00l7-022~26, 28-42 (discussing various documents and data to support Dr.
l\/leyer’s conclusions regarding competition with manual filing and unilateral effects); Meyer
Dep. 175:6-16 ("l think [the 201 1 email survey] - it’s an important data point. lt``s not the only
data point to make any of the points that 1 use it to make.") (cited in Defs.’ Mem. at 18 n.58).
As for the survey itself, the Court finds that Dr. Meyer’s use of the survey as a datum in
reaching her conclusions is not unreliable. While the plaintiff has identified cogent concerns
about the wording and the methodology of the survey, the Court finds that these concerns go to
the weight, not the admissibility, of the evidence, especially in this bench hearing where there is
no concern about jury confusion or prejudice.(’ See Seaboard Lumber C0. v. United Stales, 308
F.3d 1283, 1301-02 (Fed. Cir. 2002) (noting that "concerns [about jury confusion] are of lesser
import in a bench trial," although "Dauberl standards of relevance and reliability" still apply).
" At oral argument and in its briefs, the plaintiff urged the Court to follow Uni``tea’ States v. Denlsply [nt’l Inc., an
antitrust case in which the district court excluded a survey. 277 F. Supp. 2d 387, 436 (D. Del. 2003), rev ’d on other
grounds, 399 F.3d 181 (3d Cir. 2005). The court excluded the survey in that case because it suffered from myriad
flaws: "(l) the screening questionnaire failed to identify relevant respondents; (2) the questionnaire instructions
were complex and confiasing; (3) a pre-test was not conducted; (4) the response rate was loW; (5) non-response bias
was not addressed; (6) respondents were unwilling or unable to devote time to take the survey seriously; (7) the
results could not be replicated; (8) a standard error measurement was not calculated; and (9) a key parameter
estimate was arbitrarily changed." [a’. at 453-54. As discussed herein, the Court finds that the deficiencies the
plaintiff has identified regarding the 201 1 email survey affect the weight the Court will accord the survey, but do not
sufficiently undermine the methodology used to design, execute and analyze the survey’s results to bar admissibility.
1. Relevance
The Court finds that the survey is relevant because it is probative of the degree to which
TaxACT and H&R Block are competitors, whether the market is defined, as alleged by the
plaintiff, to be Digital DIY tax preparation products or more broadly, as alleged by the
def``endants, to be all tax preparation products and services. The options provided to survey
respondents encompassed both competing Digital DIY tax preparation products as well as
alternative services.
The plaintiff argues that the survey is irrelevant because Dr. Meyer asserted in her report
that "this survey is closer to the concept of a diversion ratio than are data on overall switching
between products," Pl.’s Mem. at 5 (citing Dr. l\/leyer’s Report at DX0017-024 n.85). According
to the plaintiff, diversion refers to "a measured customer reaction to a measured increase in
price." Id. Since the phrasing of the survey question conflates customer concerns about price,
functionality, and quality, and does not actually ask about a change in price, the plaintiff argues
that the survey cannot shed any light on customer reactions to price changes. Id. Even accepting
the plaintiffs critique, however, would not obliterate the survey’s relevance entirely. Further,
Dr. l\/leyer’s report, in the portion cited by the plaintiff, did not state that the survey provided
direct evidence of diversion, but rather that "this survey is closer to the concept ofa diversion
ratio than are data on overall switching between products," which the Court understands as
expressing a different idea. While the wording of the survey question may limit its relevance on
specific issues, because the survey provides at least some indication of the products and services
that compete with TaxACT, the Court cannot say that it does not have "any tendency to make the
existence of any fact that is ofconsequence to the determination of the action more probable or
less probable than it would be without the evidence." Fed. R. Evid. 401 (defining relevant
evidence).
2. Reliability
Customer surveys generally are a type of evidence that may be reasonably relied upon by
experts in defining markets in antitrust cases See GX622 (Christine l\/leyer, "Designing and
Using Surveys to Define Relevant l\/larkets," in Econornics ofAntirrusl.' Complex Issues in a
Dynarnz``c Economy 101 , 108 (Lawrence Wu, ed. 2007)); GX624 (Shari Seidman Diamond,
"Reference Guide on Survey Research," in Federal Judicial Center, Rejerence Manual on
Scienti``fi``c Evz``dence, hereinafter "Diamond," at 234-35).
ln detemiining whether a particular survey may be admissible under Rule 703, courts
examine the validity of the survey’s methods and ask "Was the poll or survey conducted in
accordance with generally accepted survey principles, and were the results used in a statistically
correct way?" Diamond at 233-34. The methodological validity cfa survey is necessarily a
question of degree. As discussed above, technical deficiencies that can be adequately explored
on cross-examination generally go to the weight, rather than the admissibility, of the evidence,
unless the methodological deficiencies are so sweeping or fundamental as to render the survey
wholly unreliable and therefore inadmissible.
a. Response Rate
The plaintiff argues that the survey is not reliable because it suffers from an
"extraordinary level of non-response bias" due to its low response rate. Pl.’s l\/lem. at 7. The
plaintiff cites authority indicating that a response rate below 50% "should be regarded with
significant caution as a basis for precise quantitative statements from which the sample was
drawn." Pl.’s Mem. at 7 (citing Diamond at 245). The plaintiff s rebuttal expert, Dr. Ravi Dhar,
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has concluded that the "level of nonresponse . . . is extremely high (more than 98%)" and that the
"extremely low response rates makes it difficult to determine whether the results were impacted
by a certain segment who were systematically more likely to respond to the survey (e.g., those
who were price sensitive or time insensitive) in relation to those who did not respond." GX 623
(Report of Dr. Dhar at 10).
The defendants respond by citing authority indicating that web-based surveys typically
have significantly lower response rates than other types of surveys. Defs.’ Mem. at 7-8. They
also point to jury trials in which courts have admitted surveys with response rates of 10% or
lower. Defs.’ Mem. at 7-8 (citing Sinks, 2008 WL 755065, at *4; Kz``netz``c Concepts, Inc. v.
Bluesky Mea'. Cr)rp., No. SA-03-CA-0832, 2006 WL 6505346, at *6 (W.D. Tex. Aug. ll,
2006)).
The defendants further argue that the survey’s sample size and response rate comply with
industry standards for market research. A declaration from the Vice President of the market
research firm that performed the survey affirms that large national companies commonly use
similar survey results "to make business and pricing decisions." Ruddy Decl. {ljl 3-4. This
declaration also states that "[t]he standard, industry-expected response rate for surveys of this
kind is generally between 1% - 2%" and that, for web-based email surveys, "a response rate
above 50% is so improbable as to be considered entirely unavailable." Ruddy Decl. 1111 13, 16.
While the Court agrees with the plaintiff that the survey’s response rate "appears, by any
standard, to be quite low," Sinks, 2008 WL 755065, at *4, this concern goes to the weight, not
the admissibility, of the evidence because the survey is not so unreliable as to be deemed
inadmissible. The C ourt finds that the survey’s sample size of over 1,000 TaxACT customers
from the most recent tax season, the testimony of Dr. Meyer in relying on the survey, and the
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testimony that the survey’s sample size and response rate are in line with industry standards for
similar surveys establish sufficient reliability to allow admission of the survey evidence. The
Court is cognizant of the detailed critique of the survey’s response rate presented by the
plaintiff s expert, Dr. Dhar, and the C ourt is fully capable of taking this critique into account in
determining how much weight to accord the survey’s results in its analysis. See Sinks, 2008 WL
755065, at "‘4 (admitting survey despite low response rate); Kinelz``c Concepts, Inc., 2006 WL
6505346, at *6 (same).
b. Closed-Ended Questions and Discouragement of Guessing
The plaintiff also contends that the survey is fatally flawed because it asks only "closed-
ended, leading questions" and that it failed to discourage guessing by not including a "no
opinion" or "l don’t know" option.
The plaintiff contends that the survey’s closed-ended response options are "severely
flawed because they are not exhaustive and fail to take into account that some people may not
switch [products] even though they are dissatisfied."’ Pl.’s Mem. at 9 (citing GX 623, Report of
Dr. Dhar, 1111 18-19). The plaintiff also argues that, by providing survey respondents with a list of
options from which to choose, the survey "hardly mirrors competition in the marketplace where
the Big Three competitors spend millions of dollars annually to get their message in front of
potential customers. ln contrast, the [survey] counterfactually de-emphasizes the significance of
brand and the millions spent building and maintaining it." Ia'. at 10. ln addition, the plaintiff
contends that the survey questions are leading because the response options vary depending on
the product the respondent stated he or she used during the prior tax year. Id.
The defendants respond that the questions in the survey were not inappropriately leading
and that authority cited by the plaintiffs expert actually establishes that "closed-ended questions
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are more suitable for assessing choices between well-identified options or obtaining ratings on a
clear set of alternatives." Defs.’ l\/lem. at 8-9 (citing Diamond at 253). The defendants also note
that the questions were not wholly closed-ended in that "Other" was an option that respondents
could select. Id. at 9.
By providing survey respondents with a pre-selected list of alternative options, rather
than letting respondents respond organically, the survey does lead respondents to think about the
market for tax preparation services in the same terms that the defendants do, which may have led
respondents to select options they otherwise would not have selected. This effect is not so
inherently suggestive as to render the survey’s results wholly unreliable and therefore
inadmissible, however. The survey does not appear to lead respondents to select any particular
answer; the response choices included the major market participants under both parties’ views of
the market; and it also included an "Other" option. Moreover, the survey question cannot be
considered to be as "leading" as the questions identified as problematic in the plaintiffs cited
authority.7 Accoi'dingly, this critique goes to the weight of the evidence and not to
admissibility.
The same is true of``plaintiff``s’ concerns about the survey’s failure to discourage guessing
by not including an "l don’t know" option. The plaintiff argues that "[s]urveys should explicitly
mention that it is completely appropriate for respondents to have no opinion [on] a given
question"’ and that failure to include an "l don’t know" opinion skews the results by failing to
7 ln Novartis Consurner Health, Inc. v. johnson & Johns'on~A-Ierck Consurner Phor)ns. Co.,290 F.3d 578, 591 (3d
Cir. 2002), cited by the plaintiff, the Court discussed a case in which the Third Circuit identified a highly suggestive
survey question. ln that case, the party offering the survey evidence sought to defend an advertisement claiming that
its medicine, l\/laalox, was "the strongest." The survey at issue asked respondents the following question: "1n the
commercial youjust saw, they said l\/laalox tablets are the strongest. What does that mean to you?" The Third
Circuit held that this question improperly led respondents to answer that "strongest" meant something other than its
ordinary, obvious meaning. See id. at 593 (discussing Johnson & Johnson-Merck Consumer Pharm. Co. v. Rhone-
Poulenc Rorer Pharrns., ]nc., 19 F.3d 125 (3d Cir. 1994)).
13
provide an adequate answer for respondents who have no opinion on the question. Pl.’s Mem. at
10-1 1. While this concern is valid and the absence of such an "I don’t know" option does
diminish the weight the Court should accord this survey, the failure to include this option is
partially mitigated here by the inclusion of the "Other" option. The Court does not find that this
defect so undermines the survey as to require it to be deemed inadmissible. See Kinelz'c
Concept.s', 2006 WL 6505346, at *6 (admitting survey that did not have an "l don’t know” option
and concluding that any objections went to the weight of the survey rather than to admissibility').
3. Considerati0n of All Critiques
ln sum, the plaintiff has identified a number of aspects about the methodology and
wording of the defendants’ 2011 email survey that will impact the weight that the Court gives
this survey in its analysis. These defects do not undermine the survey and the expert’s reliance
on it so overwhelmingly that they render the survey wholly irrelevant or unreliable_and
therefore inadmissible. While the admissibility of this survey might be a closer question in the
context of a jury trial, since this hearing is not before a jury, "the importance of the trial court’s
gatekeeper role is significantly diminished . . . because, there being no jury, there is no risk of
tainting the trial by exposing a jury to unreliable evidence." Whz``tehoz./.s‘e Hotel Ltd. Partnershzp,
615 F.3d at 330; accord Unitea’ States v. ()racle Corporatl'on, 331 F. Supp. 2d 1098, 1158 (N.D.
Cal. 2004) (court at injunction hearing considered government’s expert witness testimony on
product market definition despite "shortcomings" in cited statistics and "sketchy" statistical
tabulations based in part on "tiny sample" of Oracle customer surveys). Accordingly, the Court
will deny the motion in limine to exclude the survey and to preclude defendant’s expert from
expressing opinions based upon the survey.
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III. CONCLUSION
For the reasons explained above, the plaintiff s motion in limine is DENIED. This
l\/lemorandum Opinion and ()rder shall be filed under seal. On or before September 12, 2011,
the parties shall advise the Court regarding whether any portion of this Memorandum Opinion
should be redacted before public filing because it contains confidential information. ln addition,
if the parties have not already filed versions of their legal memoranda that may be filed publicly,
they shall do so by September 12, 201 1.
DATED; september 6, 2011 /s/ .?/y‘i~,/e ‘/
BERYL A. HOWELL
United States District Judge
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