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1 John Kingston (pro hac vice) Michael Nepple (pro hac vice) Brian Hockett (pro hac vice) THOMPSON COBURN LLP One US Bank Plaza St. Louis, MO 63101 Telephone: (314) 552-6000 Facsimile: (314) 552-7000 Counsel for Defendants Charter Communications, Inc. and Charter Communications Operating, LLC IN THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF NEW YORK ) In re: ) Chapter 11 ) WINDSTREAM HOLDINGS, INC., et al., ) Case No. 19-22312 (RDD) ) Plaintiffs. ) (Jointly Administered) ) ) WINDSTREAM HOLDINGS, INC., et al., ) ) Plaintiffs, ) Adv. Pro. No. 19-08246 ) vs. ) ) CHARTER COMMUNICATIONS, INC. and ) CHARTER COMMUNICATIONS OPERATING, ) LLC, ) ) Defendants. ) ) DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION TO EXCLUDE EXPERT TESTIMONY OF ROBERT BORDERS 19-08246-rdd Doc 213 Filed 01/09/20 Entered 01/09/20 15:35:34 Main Document Pg 1 of 17
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Jan 09, 2022

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Page 1: John Kingston (pro hac vice Michael Nepple (pro hac vice ...

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

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

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

) In re: ) Chapter 11

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

) Plaintiffs. ) (Jointly Administered)

) )

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

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

vs. ) )

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

) Defendants. )

)

DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION TO EXCLUDE EXPERT TESTIMONY OF ROBERT BORDERS

19-08246-rdd Doc 213 Filed 01/09/20 Entered 01/09/20 15:35:34 Main Document Pg 1 of 17

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1922312200109000000000008
Docket #0213 Date Filed: 1/9/2020
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TABLE OF CONTENTS

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

A. Mr. Borders has extensive experience in direct mail marketing. ..................... 2

B. Relying on his extensive experience, Mr. Borders has developed opinions that cast doubt on the opinions expressed in the Jarosz Report. ................................................................................................................. 4

1. Mr. Jarosz’s opinion depends on Dr. Van Diepen’s undisclosed expert opinion that the challenged advertisement affected customer decisions for . .............................................................................. 5

2. Mr. Jarosz’s opinion depends on the incorrect assumption that is an appropriate baseline month to begin the comparison. ............ 6

3. Mr. Jarosz’s calculation compares , which are historically the worst months for direct mail and regularly see significant subscriber fluctuations. ............................................................... 7

LEGAL STANDARD ...................................................................................................... 7

ARGUMENT .................................................................................................................. 8

I. Mr. Borders’ extensive direct mail marketing experience qualifies him to offer opinions on the impact of the challenged advertisement. ...................................... 9

II. Mr. Borders’ opinions regarding the Jarosz Report are supported by both his experience and the evidentiary record. ................................................................... 9

CONCLUSION ............................................................................................................. 12

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TABLE OF AUTHORITIES

Page(s)

Cases

Daubert v. Merrell Dow Pharm, Inc., 509 U.S. 579 (1993) .................................................................................................. 8

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

Sci. Components Corp. v. Sirenza Microdevices, Inc., 2008 WL 4911440 (E.D.N.Y. Nov. 13, 2008) ........................................................... 8

Scott v. Chipotle Mexican Grill, Inc., 315 F.R.D. 33 (S.D.N.Y. 2016) ................................................................................. 8

United States v. Asare, 2019 WL 5693477 (S.D.N.Y. 2019) .......................................................................... 8

United States v. Litvak, 808 F.3d 160 (2d Cir. 2015) .................................................................................... 11

Other Authorities

Fed. R. Civ. P. 26(a)(2) ................................................................................................... 1

Fed. R. Evid. 702 ........................................................................................................ 8, 9

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Mr. Robert Borders is one of several experts engaged by Charter to rebut either

the opinions expressed by Mr. John Jarosz in his October 11, 2019 expert report

(Jarosz Report) or the alleged opinions of other undisclosed expert witnesses on which

Mr. Jarosz purported to rely in the Jarosz Report.

The only direct mail marketing expert in this case, Mr. Borders’ 40 years of

experience provides ample experience and specialized knowledge on which he relied

in forming the opinions expressed in his October 25, 2019 rebuttal report. In his

report, Mr. Borders describes the basis for three basic rebuttal opinions, all of which

would be helpful to the jury in understanding the Jarosz Report and determining

possible damages in in this case: (1) contrary to the alleged opinion of undisclosed

expert Dr. Merel Van Diepen and her colleagues1 (Jarosz Report at n.110), the

effective time period of a consumer direct mail piece in the telecommunications

industry is six to eight weeks— not ; (2) given the activity surrounding

the challenged advertisement and Plaintiffs’ own notice of bankruptcy, February

2019 would provide a more reliable baseline month than the baseline

employed in the Jarosz Report; and (3) given the historical volatility in subscriber

1 In opining on alleged lost profits, Mr. Jarosz relies on the opinion that a consumer direct mail piece in the telecommunications industry affects consumer behavior for one year and ascribes that opinion to Dr. Van Diepen and two of her colleagues (Jarosz Report at n.110). Because neither Dr. Van Diepen nor her colleagues were disclosed as expert witnesses pursuant to Federal Rule of Civil Procedure 26(a)(2), Defendants have had no opportunity to (a) determine whether Mr. Jarosz’s depiction of her opinion is correct, or (b) explore the basis for that alleged opinion. See Malletier v. Dooney & Bourke, Inc., 525 F.Supp.2d 558, 665-66 (S.D.N.Y. 2007) (expert’s reliance on underlying expert opinion of another expert improper where opposing party had no chance to depose underlying expert).

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churn during the summer, in the Jarosz Report is

unreliable. Adv. Dkt. No. 187, Exhibit B.

Plaintiffs’ motion to exclude Mr. Borders from testifying at trial ignores his

October 25, 2019 rebuttal report, the evidentiary record, and his deposition

testimony. Plaintiffs’ motion utterly fails to meet the standard for exclusion of Mr.

Borders’ opinions and should be denied.

BACKGROUND

The advertisement at issue is a direct mail advertisement sent to potential

consumers of internet and TV services in 22 states in mid-March of 2019. Mr.

Borders’ experience in the direct marketing industry could assist the jury in

understanding evidence related to that direct mail marketing campaign, particularly

Mr. Jarosz’s proposed opinion testimony related to that campaign.

A. Mr. Borders has extensive experience in direct mail marketing.

Mr. Borders has more than 40 years of experience in the direct marketing and

direct mail industry. He is intimately familiar with generally accepted direct

marketing practices, direct marketing tactics and strategy, the interaction between

a direct mail marketing and customer service response, and performance analysis for

direct marketing pieces. Adv. Dkt. No. 132, Ex. 48 at 4. He has more than 14 years’

worth of subscription entertainment industry experience in television (WHT,

DirecTV, Dish TV) and radio (SiriusXM Radio). Id. He has been involved in the

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development and management of more than 200 direct marketing and catalog

campaigns and multiple direct mail catalog operations. Id.

Mr. Borders has been a Vice President of Marketing for Wometco Home

Theater, a Vice President/Management Supervisor at the direct marketing division

of Young & Rubicam (then the world's largest advertising agency), and an officer for

divisions of the Gillette Company, Young & Rubicam, and Wometco Industries. Id.

at 4-5. His consulting experience includes the development, review, and management

of direct marketing campaigns and operations for AT&T, DirecTV, Sirius Satellite

Radio, DISH TV, United States Satellite Broadcasting, Commonwealth Edison,

Thomas Publishing (The Thomas’s Register), Ricoh Office Products, Automatic Data

Processing, Olympia Business Machines, The Economics Press, Accenture

Consulting, GTE, USSB, Motorola, Doyle Publishing, General Electric Information

Services, Hughes Environmental Engineering, KPR Healthcare Advertising and the

American Marketing Association. Id. at 5.

Mr. Borders has been a member of the Direct Marketing Association (DMA) for

14 years. Id. He is a charter member of the DMA’s TeleServices Council, serving on

the Council’s Operating Committee for six years and as its Chairman for two years.

Id. He has also been a member of the DMA’s Business Marketing Council and the

Board of Advisers of the Business-to-Business Database Marketing Conference. Id.

at 5-6. Mr. Borders has served as an expert witness for the United States Department

of Justice, United States District Court for the Southern District of Illinois and the

Florida, Colorado, and Wisconsin Attorneys General. Id. at 6.

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B. Relying on his extensive experience, Mr. Borders has developed opinions that cast doubt on the opinions expressed in the Jarosz Report.

Applying specialized knowledge developed during his 40 years of direct

marketing experience, Mr. Borders formed opinions regarding the following opinions

set forth in the Jarosz Report:

See Adv. Dkt. No. 117, Ex. 1 at ¶¶ 54-56.

2 Mr. Jarosz has testified that he only performed a lost profit analysis for Windstream Holdings. SeeAdv. Dkt. No. 132, Ex. 40 at 95:13-15 (“I think the only one for whom I did an analysis was Windstream Holdings, Inc., as I recall.”). It is unclear from the Jarosz Report whether the undisclosed Charter Exchange Opinion on which Mr. Jarosz relied purported to identify where Windstream Holdings and Charter compete or where Charter and all 205 plaintiffs (including, e.g., plaintiff Boston Retail Partners, LLC) compete. The sworn declaration of Windstream Holdings’ Chief Executive Officer establishes that the company actually had no subscribers. Case No. 19-22312-rdd, Dkt. No. 27 at ¶¶ 1, 2, 18-22.

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1. Mr. Jarosz’s opinion depends on Dr. Van Diepen’s undisclosed expert opinion that the challenged advertisement affected customer decisions for .

In purporting to analyze the impact of the challenged advertisement, Mr.

Jarosz compared See id. at ¶ 56,

n.110. Mr. Jarosz claimed no experience and articulated no independent opinion or

analysis regarding the duration of the effect of direct mail campaigns. See Adv. Dkt.

No. 117, Ex. 1 at Tab. 1. Instead, in identifying the proper time frame for his

comparison, he relied on his characterization of an expert opinion described in an

article analyzing charitable direct mailings from three charities in the Netherlands

(the Van Diepen Opinion). See id. at ¶ 56, n.110 (describing Mr. Jarosz’s reliance on

Van Diepen, Merel, Bas Donkers, and Philip Hans Franses, “Dynamic and

Competitive Effects of Direct Mailings: A Charitable Giving Application,” Journal of

Marketing Research, Vol. 46, No. 1 (2009)). Mr. Jarosz does not explain how the Van

Diepen Opinion on charitable giving in the Netherlands nearly twenty years ago

applies to the issues in this action, which involve neither the Netherlands nor

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charitable giving.3 Id. And the Jarosz Report is contrary to, e.g., Dr. Van Diepen’s

recognition that—even with charitable mailings in the Netherlands—“a mailing is

half forgotten after a month.” See Exhibit 1 at p. 127. Contrary to the undisclosed

and untestable Van Diepen opinion, Mr. Borders has opined, based on his experience

involving commercial direct mail in the United States, that a direct mail piece such

as the challenged advertisement would not have an effect for five months and that a

six to eight week time frame is proper. Adv. Dkt. No. 187, Exhibit B at 3.

Replacing the period drawn from the Van Diepen Opinion with the

six to eight week period drawn from Mr. Borders’ own expertise (which is wholly

supported by the evidence), Windstream Holdings’ alleged lost profits calculation

evaporates. Applying Mr. Jarosz’s own methodology, but measuring from March

through May results in a 0.00% change to the “churn rate.” See Adv. Dkt. No. 117,

Ex. 1 at Tab 5.

2. Mr. Jarosz’s opinion depends on the incorrect assumption that is an appropriate baseline month to begin the comparison.

Another foundational assumption of Mr. Jarosz’s lost profits opinion is that

Adv. Dkt. No. 117, Ex. 1 at ¶ 56. Mr. Borders finds

this premise unsound based on his experience. Adv. Dkt. No. 187, Exhibit B at 6.

And the record evidence supports Mr. Borders’ conclusion. Charter received more

phone calls in response to the challenged advertisement in March than any other

3 In his deposition, Mr. Borders testified that non-profit solicitations (in his experience) may not follow the six-eight week trend. Borders Deposition, Exhibit 2, at 27:17-22. This observation not only reconciles his experience with the article, but suggests that the article is entirely irrelevant.

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month. Id.

Id. Mr. Jarosz’s

calculation ignores both Defendants’ evidence and Plaintiffs’ claims. Based on his

experience, and consistent with the record evidence, Mr. Borders opined that

February presents the more accurate baseline. See id. at 7.

3. Mr. Jarosz’s calculation compares , which are historically the worst months for direct mail and regularly see significant subscriber fluctuations.

Adv. Dkt. No. 117, Ex. 1 at ¶ 54. Based on his

extensive experience, Mr. Borders has opined this is an unsound comparison because

“in the subscription entertainment business … the summer months have more churn

and flux than any other period.” Adv. Dkt. No. 187, Exhibit B at 7; Exhibit 2, at

54:24-55:2. As Mr. Borders explained in his deposition, “people move, college

students graduate, come back, have to change their e-mail addresses and the like,

houses get sold, people move into new houses.” Exhibit 2 at 55:9-12. This testimony,

from someone with extensive experience in subscription entertainment, supports the

proposition that there is likely to be significant volatility in a subscriber base during

summer months that cannot be attributed to the challenged advertisement. This

opinion further undermines Mr. Jarosz’s opinion because he made no effort to control

for this variable.

LEGAL STANDARD

In determining whether an expert’s opinion is admissible, a court considers

three factors: (1) the qualifications of the proposed expert; (2) whether each proposed

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opinion is based on reliable data and reliable methodology; and (3) whether the

proposed testimony would be helpful to the trier of fact. See Fed. R. Evid. 702. See

also Daubert v. Merrell Dow Pharm, Inc., 509 U.S. 579, 589 (1993)). Courts in “the

Second Circuit liberally construe the expert qualifications requirement, and

generally will not exclude expert testimony provided the expert has educational and

experiential qualifications in a general field closely related to the subject matter in

question.” See United States v. Asare, 2019 WL 5693477, at *2 (S.D.N.Y. 2019).

Courts have routinely recognized that rebuttal reports—offering to explain, repel,

counteract or disprove the evidence and opinions of the opposing party’s affirmative

expert report—assist the jury in understanding the evidence and deciding disputed

issues. See e.g., Scott v. Chipotle Mexican Grill, Inc., 315 F.R.D. 33, 47 (S.D.N.Y. 2016)

(finding that the rebuttal opinion would be helpful to the jury).

ARGUMENT

Plaintiffs fall far short of establishing any basis for this Court to exclude Mr.

Borders’ rebuttal expert report. Mr. Borders is the only expert witness with expertise

in the direct mail industry, and his extensive experience particularly applies to

subscription-based entertainment services. He is sufficiently qualified to provide

specific critiques of the Van Diepen Opinion described and relied upon in the Jarosz

Report. As a rebuttal expert, Mr. Borders does not need to form an opinion of his own

regarding, e.g., lost profits—he only needs to attack the opinions of the Plaintiffs’

expert. Sci. Components Corp. v. Sirenza Microdevices, Inc., 2008 WL 4911440, at

*2-4 (E.D.N.Y. Nov. 13, 2008) (identifying as “archetypal rebuttal testimony,” expert

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testimony that “identifies a flawed premise in an expert report that casts doubt on

both that report’s conclusions and its author’s expertise”).

I. Mr. Borders’ extensive direct mail marketing experience qualifies him to offer opinions on the impact of the challenged advertisement.

Mr. Borders is the only expert disclosed by any of the 207 parties to this lawsuit

with expertise in direct mail marketing campaigns. He has 40 years of experience in

the direct marketing/mail industry, including more than 14 years of experience in

subscription entertainment (some of those for Windstream and Charter’s competitors

(DirecTV and Dish TV)). See Adv. Dkt. No. 137, Exhibit 48 at 4. He has been involved

in the development and management of more than 200 direct marketing and catalog

campaigns, and multiple direct mail catalog operations, consulting on direct

marketing projects for AT&T, DirecTV, Sirius Satellite Radio, DISH TV, and United

States Satellite Broadcasting, Inc. Id. His wide breadth of experience in direct

marketing will assist the jury in evaluating Mr. Jarsoz’s proposed opinion testimony

and deciding the disputed issue of damages. See Fed. R. Evid. 702.

II. Mr. Borders’ opinions regarding the Jarosz Report are supported by both his experience and the evidentiary record.

Mr. Borders opined that the reasonable lifetime of a direct mail piece is six to

eight weeks—not the drawn from the Van Diepen Opinion. Adv. Dkt.

No. 187, Exhibit B at 3. Plaintiffs contend Mr. Borders’ opinion contradicting the

Van Diepen Opinion should be stricken because it is based solely on his say so. Not

so. Mr. Borders’ opinion is backed by his extensive experience and the evidence.

Based on his experience, Mr. Borders opined that the baseline for the life of a

direct mail piece is six to eight weeks. See id. at 3. This baseline was not an

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unsupported guess. Years ago, AT&T asked Mr. Borders to determine the life of a

direct mail piece. See Exhibit 2 at 20:9-21:21. Specifically, he was tasked with

determining the response period for a direct mail piece to ensure sufficient customer

service staffing. See id. at 20:9-22:20. In the first phase of the project, he analyzed

the responses and formed his conclusion that six to eight weeks is the lifetime of a

direct mail piece. See id. at 22:1-24:22. He validated this conclusion in subsequent

phases. Id. While that is the only time he studied this issue, he has found this

baseline consistent over the thirty years of experience since. See id. at 26:12-22; 30:3-

23.

Further, Mr. Borders’ testimony is supported by the record. Over half of all

responses received by Charter in response to the challenged advertisement were

received in March, mere days after the advertisement was sent. Adv. Dkt. No. 187,

Exhibit B at 4. This rate rapidly diminished, with well over 90% of the responses

received by Charter within eight weeks—a time period consistent with Mr. Borders’

AT&T study and industry experience. Id.

Id. Finally,

Charter’s actions are inconsistent with a sophisticated business entity that expects a

five-month life span on a mailing: the challenged advertisement’s offer expired

roughly four weeks after it was sent and Charter sends out direct mail pieces

soliciting customers in the Windstream footprint every two weeks—both facts that

are inconsistent with a five-month life span. See id. at 5.

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Mr. Borders also criticized Mr. Jarosz’s selection of as the appropriate

baseline month for his analysis of Windstream Holdings’ purported lost profits

analysis. Adv. Dkt. No. 187, Exhibit B at 6.

Adv. Dkt. No. 117, Ex. 1 at ¶ 56. In contrast, Mr. Borders opined that

is not a reliable month for comparison because (1) Charter received most of its

responses to the Charter Advertisement in March (days after it came out); (2)

Windstream likewise received the majority of customer calls referencing Charter in

March; and (3) Windstream Holdings’ own notice of bankruptcy, beginning in

February and continuing through the end of March, may have an impact on customer

churn. Adv. Dkt. No. 187, Exhibit B at 6-7. This evidence supports Mr. Borders’

opinion that Mr. Jarosz’s use of a March baseline is flawed.

In the subscription media industry, subscriber data is inherently volatile as a

result of a number of factors, including people moving, the real estate market, the

economy, and the job market. Nevertheless, Windstream attacks Mr. Border’s opinion

that, because of the known volatility, the summer months are a poor basis for Mr.

Jarosz’s calculation. See id. at 7-8. As discussed above, Mr. Borders bases his

testimony on his experience in the direct mail industry and subscription

entertainment. Id. Experts are of course allowed to rely on their own experience

when appropriate—not every opinion needs to have been peer reviewed. See United

States v. Litvak, 808 F.3d 160, 180 n. 25 (2d Cir. 2015) (“[D]istrict courts must be

mindful that the Daubert factors do not all necessarily apply even in every instance…,

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and in many cases, the reliability inquiry may instead focus upon personal knowledge

and experience of the expert.”) (internal citation and quotation marks omitted). The

fluid changes regularly occurring during the summer months have nothing to do with

the challenged advertisement, but instead, are a recognized pattern of organic

seasonal subscriber movement. Unlike Mr. Jarosz, Charter’s expert, Dr. Jules

Kamin, specifically identified and corrected for the seasonality of subscriber data.

Given this known volatility, the remedial comparison Mr. Jarosz conducted—looking

back only one year, failing to correct for seasonality, and selecting a baseline month

inconsistent with the record evidence—is inadequate and Mr. Border’s testimony

identifying and discussing the deficiencies in Mr. Jarosz’s proposed opinion testimony

will assist the jury in understanding that evidence.

CONCLUSION

For the foregoing reasons, the Court should deny Plaintiffs’ request to exclude

Mr. Robert Borders from offering expert testimony relating to his October 25, 2019

report at trial.

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Dated: January 9, 2020 Respectfully submitted,

THOMPSON COBURN LLP

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

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

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CERTIFICATE OF SERVICE

I hereby certify that on this 9th day of January, 2020, I served a true and correct copy of Defendants Charter Communications, Inc. and Charter Communications Operating, LLC’s Response in Opposition to Plaintiff’s Motion to Exclude Expert Testimony of Robert Borders via operation of the Court’s Electronic Filing System upon all counsel of record in the adversary proceeding.

Undersigned counsel further certifies that on this 9th day of January, 2020, a true and correct copy of Defendants Charter Communications, Inc. and Charter Communications Operating, LLC’s Response in Opposition to Plaintiff’s Motion to Exclude Expert Testimony of Robert Borders will be sent via email to the following:

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

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

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

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

/s/ John Kingston

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