OPPOSITION/RESPONSE (re 159 MOTION TO EXCLUDE DEFENDANTS EXPERT… — Brooks v. Thomson Reuters Corporation (Dkt. 165)

Record facts

U.S. District Court for the Northern District of California · No. 3:21-cv-01418-EMC · Doc. 165 · 2023-04-20 · Docket on CourtListener

Full text

CASE NO. 3:21-CV-01418-EMC 
 
 
DEFENDANT THOMSON REUTERS’ OPP. TO M. TO 
EXCLUDE DEF.’S REBUTTAL EXPERTS 
 
 
 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Susan D. Fahringer, Bar No. 21567 
SFahringer@perkinscoie.com 
Nicola C. Menaldo, pro hac vice 
NMenaldo@perkinscoie.com 
Erin K. Earl, pro hac vice 
EEarl@perkinscoie.com 
Anna M. Thompson, pro hac vice 
AnnaThompson@perkinscoie.com 
PERKINS COIE LLP 
1201 Third Avenue, Suite 4900 
Seattle, WA 98101-3099 
Telephone: 206.359.8000 
Facsimile: 206.359.9000 
 
Attorneys for Defendant 
Thomson Reuters Corporation 
 
Gabriella Gallego, Bar No. 324226 
GGallego@perkinscoie.com 
PERKINS COIE LLP 
3150 Porter Drive 
Palo Alto, CA 94304-1212 
Telephone: 650.838.4300 
Facsimile: 650.838.4350 
 
Hayden M. Schottlaender, pro hac vice 
HSchottlaender@perkinscoie.com 
PERKINS COIE LLP 
500 N. Akard Street, Suite 3300 
Dallas, TX 75201-3347 
Telephone: 214.965.7700 
Facsimile: 214.965.7799 
 
 
 
UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF CALIFORNIA 
SAN FRANCISCO DIVISION 
 
CAT BROOKS and RASHEED SHABAZZ, 
individually and on behalf of all others 
similarly situated, 
 
 
 
Plaintiffs, 
 
v. 
 
THOMSON REUTERS CORPORATION, 
 
 
 
Defendant. 
Case No. 3:21-cv-01418-EMC 
DEFENDANT THOMSON REUTERS’ 
OPPOSITION TO PLAINTIFFS’ 
OMNIBUS MOTION TO EXCLUDE 
DEFENDANT’S EXPERT OPINIONS 
ON CLASS CERTIFICATION 
 
Date: April 20, 2023 
Time: 1:30 p.m. 
Place: Courtroom 5, 17th Floor 
Judge: Hon. Edward M. Chen 
Case 3:21-cv-01418-EMC     Document 165     Filed 03/06/23     Page 1 of 21

 
 
 
 
TABLE OF CONTENTS 
 
Page 
 
CASE NO. 3:21-CV-01418-EMC 
i 
DEFENDANT THOMSON REUTERS’ OPP. TO M. TO 
EXCLUDE DEF.’S REBUTTAL EXPERTS 
 
 
 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
INTRODUCTION ......................................................................................................................... 1 
SUMMARY OF EXPERT OPINIONS ......................................................................................... 2 
ARGUMENT ............................................................................................................................... 11 
I. 
Dr. Kivetz is a qualified expert on consumer preference and opinion, which 
Plaintiffs’ own expert argues is relevant to assessing the existence and 
commonality of privacy “harm” in this case. ....................................................... 11 
A. 
Plaintiffs do not dispute that Dr. Kivetz is a qualified expert on 
consumer perception and preference. ....................................................... 11 
B. 
Consumer perception and preference are directly relevant to Prof. 
Turow’s opinion. ...................................................................................... 13 
C. 
Plaintiffs’ authority supports admitting Dr. Kivetz’s opinion. ................ 15 
II.  
Professor Bambauer’s opinion should not be excluded for failing to offer 
inadmissible and irrelevant legal conclusions. ..................................................... 17 
CONCLUSION ............................................................................................................................ 18 
Case 3:21-cv-01418-EMC     Document 165     Filed 03/06/23     Page 2 of 21

 
 
 
 
TABLE OF AUTHORITIES 
 
Page(s) 
 
CASE NO. 3:21-CV-01418-EMC 
ii 
DEFENDANT THOMSON REUTERS’ OPP. TO M. TO 
EXCLUDE DEF.’S REBUTTAL EXPERTS 
 
 
 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
CASES 
Dyson, Inc. v. Bissell Homecare, Inc., 
951 F. Supp. 2d 1009 (N.D. Ill. 2013) .................................................................................... 17 
Farar v. Bayer AG, 
No. 14-cv-04601-WHO, 2017 WL 5952876 (N.D. Cal. Nov. 15, 2017) ......................... 16, 17 
Kennedy v. Collagen Corp., 
161 F.3d 1226 (9th Cir. 1998) ................................................................................................. 15 
Nationwide Transport Finance v. Cass Info. Sys’s, Inc., 
523 F. 3d 1051 (9th Cir. 2008) ................................................................................................ 17 
Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 
31 F. 4th 651 (9th Cir. 2022) .................................................................................................. 13 
People v. Kohl’s Dep’t Stores, Inc., 
Nos. BC643037, BC643040, 2021 WL 3507072 (Cal. Super. Ct. July 13, 
2021) ....................................................................................................................................... 17 
Red v. Kraft Foods, Inc., 
No. CV 10-1028-GW(AGRx), 2011 WL 4599833 (C.D. Cal. Sept. 29, 2011) ...................... 16 
Stencel v. Fairchild Corp., 
174 F. Supp. 2d 1080 (C.D. Cal. 2001) .................................................................................. 11 
TransUnion LLC v. Ramirez, 
141 S. Ct. 2190 (2021) ............................................................................................................ 14 
Traumann v. Southland Corp., 
858 F. Supp. 979 (N.D. Cal. 1994) ......................................................................................... 17 
United States v. Tamman, 
782 F.3d 543 (9th Cir. 2015) ................................................................................................... 17 
Case 3:21-cv-01418-EMC     Document 165     Filed 03/06/23     Page 3 of 21

 
 
 
 
CASE NO. 3:21-CV-01418-EMC 
1 
DEFENDANT THOMSON REUTERS’ OPP. TO M. TO 
EXCLUDE DEF.’S REBUTTAL EXPERTS 
 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
INTRODUCTION 
Plaintiffs cannot offer a single meritorious basis for excluding any part of the opinions of 
either Dr. Kivetz or Prof. Bambauer, Thomson Reuters’ (“TR’s”) rebuttal experts.  Both are 
eminently qualified in their fields, use valid scientific methods, and offer opinions that soundly 
rebut Plaintiffs’ principal expert in support of class certification, Professor Joseph Turow.  
Plaintiffs go to unusual lengths in asking the Court to exclude the opinions of Dr. Kivetz 
and Prof. Bambauer, including contradicting their own expert’s opinion by denying it is based on 
consumer perception and preference data, and criticizing Prof. Bambauer for not offering an 
inadmissible legal opinion. Plaintiffs even go so far as to invent strawman opinions that neither 
expert espoused.  
Prof. Turow’s opinion is that TR’s CLEAR platform uniformly harms tens of millions of 
putative class members because it divests each of them of their “ethical and social” “right to 
control” their personal information. As explained in TR’s motion to exclude Prof. Turow’s 
testimony, his opinion is merely an unevidenced presentation of his personal opinion about 
CLEAR and its impact on nebulous and undefined “privacy rights.” Doc. 157-4. Where he 
purports to offer support for his opinion, it is in the form of flawed third-party surveys that either 
have no bearing on, or directly contradict, his conclusion. Id.  
Plaintiffs now seek to exclude Dr. Kivetz’s opinion on the basis that this survey 
evidence—the very type of evidence upon which Prof. Turow himself relies—is not “accepted in 
the privacy field” as a means of assessing harm. Doc. 159 (“Mot.”) at 6. And, incredibly, they 
seek to exclude Prof. Bambauer’s opinion because she does not opine on California law. Mot. at 
11. These are not bases to exclude expert testimony under Daubert.  
Dr. Kivetz and Prof. Bambauer each explain, based on their individual expertise, 
experience, and analyses of relevant academic literature, the reasons why Prof. Turow’s opinion 
is unsubstantiated and unsupported, and instead reflects his personal and unscientific view. Dr. 
Kivetz opines that one cannot determine whether people are harmed in the way that Prof. Turow 
says they are without empirical evidence, such as reliable academic literature or consumer 
surveys. Dr. Kivetz then systematically dismantles the literature and third-party surveys upon 
Case 3:21-cv-01418-EMC     Document 165     Filed 03/06/23     Page 4 of 21

 
CASE NO. 3:21-CV-01418-EMC 
2 
DEFENDANT THOMSON REUTERS’ OPP. TO M. 
TO EXCLUDE DEF.’S REBUTTAL EXPERTS 
 
 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
which Prof. Turow relies. In response, Plaintiffs do not contest that Dr. Kivetz is an expert in 
consumer surveys, consumer perception, or consumer behavior. They contend that he is not an 
expert in privacy, which he does not purport to be. They also argue that it is somehow Dr. 
Kivetz’s responsibility to conduct a survey to support or rebut Turow’s opinion. But the 
observation that Prof. Turow’s opinion has no empirical basis does not somehow shift the burden 
to Dr. Kivetz to develop and execute a reliable survey that actually gauges whether consumers are 
uniformly impacted by CLEAR. That is Plaintiffs’ burden.  
Prof. Bambauer opines that Prof. Turow’s personal opinions on privacy represent an 
absolutist, minority viewpoint that would directly and tangibly hurt class members, over class 
members’ own objections, in the name of “privacy” for privacy’s sake. Plaintiffs’ sole critique of 
Prof. Bambauer—that she does not sufficiently opine on California law—is easily rejected; expert 
opinions about the law are inadmissible, and Prof. Turow himself denies that he is offering a legal 
opinion. Worse, Plaintiffs’ criticism of Prof. Bambauer reveals problems with their theory of 
liability, not with TR’s defense. Neither Prof. Turow nor Prof. Bambauer discuss CLEAR’s 
intersection with California law because everybody–from the parties, to the experts, to the amici–
recognizes that California has passed the country’s most extensive consumer privacy laws, and 
TR’s operation of CLEAR is not alleged to violate a single one of those laws. Plaintiffs here 
attempt to circumvent the California legislature, and they are upset that Prof. Bambauer has 
opined that those attempts would hurt–rather than help–the putative class.  
Plaintiffs’ Omnibus Motion should be denied. 
SUMMARY OF EXPERT OPINIONS 
Prof. Turow: Plaintiffs offer the opinion of Prof. Turow in support of their argument that 
CLEAR uniformly harms “all Californians” by depriving them of control over their personal 
information. Doc. 124-7, at 5. Prof. Turow testified that this harm is “ethical and social.” Doc. 
157-10, at 174:18-175:2; 212:2-4. He bases this opinion on “consumer perceptions” of CLEAR. 
Id. at 119:3-10. TR provides a detailed summary of Prof. Turow’s opinion and testimony in TR’s 
motion to exclude that testimony. See Doc. 157-4. 
Dr. Kivetz: TR offers Dr. Kivetz’s opinion to rebut the opinion of Prof. Turow. Dr. 
Case 3:21-cv-01418-EMC     Document 165     Filed 03/06/23     Page 5 of 21

 
CASE NO. 3:21-CV-01418-EMC 
3 
DEFENDANT THOMSON REUTERS’ OPP. TO M. 
TO EXCLUDE DEF.’S REBUTTAL EXPERTS 
 
 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Kivetz is a tenured, chaired, and full-time professor at Columbia University Business School, 
whose fields of expertise include “consumer psychology and behavior, survey methods … human 
judgment, perception, and decision making,” and “survey design.” Doc. 151-14, at 4. Dr. Kivetz’s 
primary opinion is that Prof. Turow “fails to provide any empirical or scientific evidence of 
common injury allegedly suffered by the putative class members due to CLEAR, and Dr. Turow’s 
cited research and analyses do not substantiate his conclusions.” Id. at 11 (emphases omitted).1  
To form this opinion, Dr. Kivetz first analyzes Prof. Turow’s statements about the type of 
harm that Prof. Turow alleges to be at issue in this case: an “ethical and social” harm. Id. Dr. 
Kivetz observes that, by Prof. Turow’s own admission, this type of harm lacks any “physical 
injury, financial consequences, loss of property, or other quantification scheme.” Id. Dr. Kivetz 
therefore opines that, to identify and measure the abstract harm alleged by Prof. Turow, one 
would need to analyze: original survey data collected specifically for this litigation; or existing 
and relevant secondary data; or existing empirical academic literature regarding consumers’ 
perceptions and preferences about privacy. Id. at Part D.1.  
Second, Dr. Kivetz evaluates the academic literature and consumer surveys upon which 
Prof. Turow relies in forming his opinion. Id., Parts D.2, D.3. Dr. Kivetz reviews problems with 
the questions asked by Prof. Turow’s cited surveys (for example that they deal with marketer 
access to personal information, which has little bearing on the type of privacy harm alleged here, 
since CLEAR specifically prohibits use for any marketing purpose) and explains that those survey 
results often directly support TR rather than Plaintiffs (for example, where a majority of surveyed 
participants disagreed that losing control over their personal information was a major concern). 
Id. These are issues well within Dr. Kivetz’s qualifications as an expert in consumer research, 
 
1 A prime example of Dr. Kivetz’s qualifications to rebut Prof. Turow is offered by Plaintiffs’ 
own Motion. In the Motion’s footnote 6, Plaintiffs describe how Dr. Kivetz criticizes Prof. Turow 
for citing a survey claiming that “73% of households expressed major concern about privacy or 
security while using the internet.” Dr. Kivetz rebutted that citation by reviewing the very next 
page of that survey (in the same document cited by Prof. Turow), which reflected that only a 
“minority of participants perceived control over ‘personal data’ as important.” Doc. 151-14, at 43. 
Prof. Turow’s 73% survey statistic was “the sum of two distinct concerns,” one of which being 
“‘security risks,’ such as identity theft and credit card fraud,” the precise concerns that CLEAR is 
used by customers to combat. Id. at 42.  
Case 3:21-cv-01418-EMC     Document 165     Filed 03/06/23     Page 6 of 21

 
CASE NO. 3:21-CV-01418-EMC 
4 
DEFENDANT THOMSON REUTERS’ OPP. TO M. 
TO EXCLUDE DEF.’S REBUTTAL EXPERTS 
 
 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
consumer psychology and behavior, and survey methodology.  
Third, Dr. Kivetz identifies and analyzes multiple other sources of relevant evidence when 
assessing harm in this case that are inappropriately ignored by Prof. Turow. These include: (i) 
other empirical academic research and existing surveys that indicate a lack of commonality in 
consumers’ perceptions and/or preferences about privacy; (ii) the named Plaintiffs’ testimonies, 
which reveal differences in perceptions and preferences involving privacy and “harm”; and (iii) 
benefits related to CLEAR (including its use cases and safeguards) that can affect consumers’ 
perceptions and preferences regarding the use of information in CLEAR. Id., Part E. That 
empirical evidence, Dr. Kivetz concludes, is counter to Prof. Turow’s speculation that putative 
class members “experience any common, classwide harm due to CLEAR.” Id. at 82.  
 
As should now be clear, Plaintiffs’ Motion grossly mischaracterizes Dr. Kivetz’s actual 
opinions in this case in several ways. Chiefly, Plaintiffs criticize Dr. Kivetz by suggesting that it 
is his opinion that the only way to measure privacy harms caused by CLEAR is through an 
original survey. But, as described above, that is neither his opinion’s intent nor its conclusion. Dr. 
Kivetz focuses instead on the (lack of) empirical support that Prof. Turow offers for his own 
opinion about the commonality of harms generated by CLEAR. Plaintiffs repeat these 
disingenuous mischaracterizations of Dr. Kivetz’s testimony throughout their Motion:  
  
Plaintiffs’ Characterization 
Problems with Plaintiffs’ 
Characterization 
Quotes from Dr. Kivetz 
“Kivetz argues that the only 
way to think about California 
privacy law is to get inside 
every Californian’s head and 
to evaluate their subjective 
perceptions and expectations 
under hyper-specific 
contextual circumstances.” 
Mot. at 1.  
 
& 
 
Kivetz opines “that the 
privacy harms here can only 
Dr. Kivetz’s observation 
regarding the relevance of 
consumer perception and 
preference comes directly 
from Dr. Turow’s own 
opinion and deposition 
testimony.  
“Dr. Turow testified at his 
deposition that the underlying 
‘privacy rights’ he opined on 
refer to ‘ethical and social’ 
rights, and that violation of 
such ‘ethical and social’ 
rights does not correspond to 
any physical injury, financial 
consequences, loss of 
property, or other 
quantification scheme. Dr. 
Turow’s own deposition 
testimony and logic therefore 
indicate that any ‘privacy 
Case 3:21-cv-01418-EMC     Document 165     Filed 03/06/23     Page 7 of 21

 
CASE NO. 3:21-CV-01418-EMC 
5 
DEFENDANT THOMSON REUTERS’ OPP. TO M. 
TO EXCLUDE DEF.’S REBUTTAL EXPERTS 
 
 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Plaintiffs’ Characterization 
Problems with Plaintiffs’ 
Characterization 
Quotes from Dr. Kivetz 
be defined and measured 
based on subjective consumer 
expectations.” Mot. at 3. 
harms’ allegedly caused by 
CLEAR must exist in 
consumers’ minds and 
accordingly be measured 
according to consumers’ 
perceptions and preferences.” 
Doc. 151-14, at 11-12 
(footnotes omitted).  
 
“Because the ‘privacy harms’ 
allegedly inflicted by CLEAR 
(and conceptualized by Dr. 
Turow as ethical and social 
harms) are not objectively 
quantified with respect to Dr. 
Turow’s opinions in this 
litigation, and given that he 
does not purport to offer any 
legal opinion (including with 
respect to these harms), such 
‘harms,’ to the extent that 
they exist, must therefore (by 
Dr. Turow’s own logic) exist 
in the minds of consumers 
and must accordingly be 
defined and measured based 
on consumers’ (subjective) 
perceptions and preferences.  
Indeed, as Dr. Turow 
testified, his opinion in this 
case does purport to ‘reflect 
consumer perceptions,’ 
specifically on the topic of 
‘the right to control one’s 
information.’” Doc. 151-14, 
at 23 (footnotes omitted). 
Kivetz opines “that 
substantiating those privacy 
harms require a specific 
methodological practice-
original survey research.” 
Mot. at 3.  
Dr. Kivetz opines that Prof. 
Turow must have an 
empirical basis for his opinion 
about a universal privacy 
harm. Such empirical 
evidence could consist of 
original survey data, existing 
and relevant secondary data, 
“...the question of whether the 
putative class members in this 
litigation have suffered 
common (or even 
individualized) harm 
attributable to CLEAR 
depends crucially on 
investigating how class 
Case 3:21-cv-01418-EMC     Document 165     Filed 03/06/23     Page 8 of 21

 
CASE NO. 3:21-CV-01418-EMC 
6 
DEFENDANT THOMSON REUTERS’ OPP. TO M. 
TO EXCLUDE DEF.’S REBUTTAL EXPERTS 
 
 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Plaintiffs’ Characterization 
Problems with Plaintiffs’ 
Characterization 
Quotes from Dr. Kivetz 
or existing and empirical 
academic literature.  
members would perceive or 
respond to the CLEAR 
product and/or Thomson 
Reuters’s operation thereof. 
Such consumer perceptions 
and preferences cannot be 
investigated, ascertained, or 
substantiated on the basis of: 
(i) legal opinions; (ii) 
personal opinions or 
ideologies, even those held by 
an expert; or (iii) research or 
analyses that do not evaluate 
consumers’ perception and 
preferences in the relevant 
context of the product or 
service at issue. [] Thus, it 
was necessary for Dr. Turow 
to provide a scientific, 
empirical basis for his claim 
that the putative class 
members suffered common 
harm due to CLEAR’s alleged 
violation of consumers’ 
privacy. Such substantiation 
could consist of (original) 
survey data collected 
specifically for the current 
litigation, analysis of 
(existing) relevant secondary 
data, or a careful application 
to the particulars of CLEAR 
of existing (empirical) 
academic literature on 
consumers’ perceptions and 
preferences about privacy.” 
Doc. 151-14, at 23-24 
(footnotes omitted).  
Kivetz opines “that Professor 
Turow is wrong that the right 
to control is an aspect of 
Californians’ privacy rights, 
and that the only potential 
injury here is a psychic 
Dr. Kivetz opines that Prof. 
Turow’s academic or legal 
conclusion about a violated 
“right” is distinct from how 
consumers value their 
privacy, and from whether 
“Crucially, how privacy is 
defined by scholars in the 
abstract (e.g., in law, history, 
political philosophy/economy, 
or academia in general) is 
distinct from—and irrelevant 
Case 3:21-cv-01418-EMC     Document 165     Filed 03/06/23     Page 9 of 21

 
CASE NO. 3:21-CV-01418-EMC 
7 
DEFENDANT THOMSON REUTERS’ OPP. TO M. 
TO EXCLUDE DEF.’S REBUTTAL EXPERTS 
 
 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Plaintiffs’ Characterization 
Problems with Plaintiffs’ 
Characterization 
Quotes from Dr. Kivetz 
injury.” Mot. at 3.   
consumers themselves would 
perceive a loss of “control” to 
be harmful in the context of 
CLEAR.  
to—how consumers 
understand, perceive, or value 
their privacy, particularly 
when considering the use of 
their information in 
connection with a specific 
product such as CLEAR. 
These theoretical definitions 
of privacy do not address 
whether and to what extent 
Californians are harmed. 
Answering that question 
requires asking whether 
consumers—when made 
aware that information about 
them was collected or 
disseminated through 
CLEAR—would, inter alia: 
be concerned about not being 
able to control their 
information on CLEAR; be 
disappointed or dissatisfied 
with Thomson Reuters’s 
operation of CLEAR; feel 
“blindsided” or surprised; feel 
“betrayed” by Thomson 
Reuters; expect compensation 
from a product like CLEAR; 
not have consented to having 
their information be collected 
or disseminated through the 
CLEAR platform; believe that 
the harms from CLEAR 
outweigh any benefits; or 
express any other relevant 
perception or preference 
regarding Thomson Reuters 
and/or CLEAR. The Turow 
Report does not ask, let alone 
answer, any of these 
questions.” Doc, 151-14, at 
32.  
Kivetz opines “that there is no 
classwide harm based on 
Dr. Kivetz says no such thing. 
Dr. Kivetz opines that Prof. 
“...an (empirical) evaluation 
of consumers’ perceptions 
Case 3:21-cv-01418-EMC     Document 165     Filed 03/06/23     Page 10 of 21

 
CASE NO. 3:21-CV-01418-EMC 
8 
DEFENDANT THOMSON REUTERS’ OPP. TO M. 
TO EXCLUDE DEF.’S REBUTTAL EXPERTS 
 
 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Plaintiffs’ Characterization 
Problems with Plaintiffs’ 
Characterization 
Quotes from Dr. Kivetz 
California’s right to control 
one’s information and right to 
be let alone.” Mot. at 3.  
Turow needs to support his 
own opinion with empirical 
evidence, and the empirical 
evidence upon which Prof. 
Turow attempts to rely at 
present does not support Prof. 
Turow’s opinion.  
and values is necessary in 
order to evaluate the existence 
and magnitude of harm.” Doc. 
151-14, at 35.  
“Kivetz argues that 
consumers will appreciate 
CLEAR” Mot. at 7.  
Dr. Kivetz opines that Prof. 
Turow does not address how 
CLEAR’s social benefits 
could impact consumer 
perception of harm.  
“Instead of presenting 
consumers with information 
on the potential harm and 
potential benefits that could 
arise from CLEAR (or a 
CLEAR-like product), the 
Turow Report discounted the 
possibility of benefits 
altogether, asserting that all 
putative class members must 
have been harmed due to 
having their right to control 
“personal information” 
allegedly violated. Such an 
assumption is completely 
unsubstantiated. In fact, the 
results of the 2019 Pew 
Survey suggest that many 
members of the putative class 
would disagree with Dr. 
Turow’s assessment of harm 
outweighing any benefits  … 
if they were presented a full 
picture of CLEAR.” Doc. 
151-14, at 63.  
Kivetz concludes “that class 
members would like CLEAR 
if only they knew more about 
it.” Mot. at 7.  
Dr. Kivetz opines that Prof. 
Turow lacks empirical 
support for his claims about 
universal consumer 
disapproval of CLEAR.  
“Not only does the Turow 
Report ignore the possibility 
that some putative class 
members are likely to believe 
that they benefited from (or 
could benefit from), rather 
than were harmed by, 
CLEAR, but Dr. Turow also 
assumes that all class 
members would be 
“blindsided by the unknown 
Case 3:21-cv-01418-EMC     Document 165     Filed 03/06/23     Page 11 of 21

 
CASE NO. 3:21-CV-01418-EMC 
9 
DEFENDANT THOMSON REUTERS’ OPP. TO M. 
TO EXCLUDE DEF.’S REBUTTAL EXPERTS 
 
 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Plaintiffs’ Characterization 
Problems with Plaintiffs’ 
Characterization 
Quotes from Dr. Kivetz 
and unwanted collection and 
use of information about 
themselves” and would, as he 
testified, “freak out” upon 
learning about CLEAR. Such 
an unsubstantiated assertion is 
at odds with both the 
evidence reviewed previously 
and with many consumers’ 
likely expectations about the 
use of their information in the 
current digital marketplace 
and era of “Big Data.” Doc. 
151-14, at 95-96 (evidentiary 
support omitted). 
Prof. Bambauer: TR also offers Prof. Bambauer’s opinion to rebut that of Prof. Turow. 
Prof. Bambauer’s fields of expertise include privacy policy, data technologies, and “consumer 
preferences and attitudes related to the collection, disclosure, or repurposing of personal data.” 
Doc. 151-2, at 4. Prof. Bambauer directly rebuts Prof. Turow’s claim that “any unconsented 
collection, disclosure, or use of personal data constitutes a privacy harm.” Id. at 6. She explains 
that Prof. Turow’s perception of CLEAR and personal opinions about privacy harms are 
absolutist and inconsistent with the ideological tenets behind every privacy law that has been 
enacted. Id. at 8. Indeed, Prof. Turow’s opinion is “out of sync with generally-accepted 
theoretical, academic, and historical frameworks for understanding privacy violations and harms 
because the report admits of no exceptions to his claim that privacy requires data subject control.” 
Id. Prof. Bambauer discusses the views of the very privacy scholars that Prof. Turow cites in his 
report, and explains that each recognizes that complete information control “is not always in the 
best interest of society or of the data subjects themselves, and privacy does not and should not 
require consent in every single conceivable case.” Id. at 9. Prof. Bambauer offers her opinion that 
any evaluation of privacy harm “must take into account differing levels of sensitivity and 
preferences (as well as differences in the impact of potential benefits).” Id. at 13. And, Prof. 
Bambauer explains, these harms will necessarily vary by person, as she supports with evidence 
Case 3:21-cv-01418-EMC     Document 165     Filed 03/06/23     Page 12 of 21

 
CASE NO. 3:21-CV-01418-EMC 
10 
DEFENDANT THOMSON REUTERS’ OPP. TO M. 
TO EXCLUDE DEF.’S REBUTTAL EXPERTS 
 
 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
about the various privacy tradeoffs that consumers make every day for themselves or for broader 
social benefits. Id. at 13-14.  
Prof. Bambauer also analyzes CLEAR and TR’s practices with respect to CLEAR in great 
detail. She analyzes each of the finite number of uses for which CLEAR customers are permitted 
to use CLEAR, and explains how each either directly benefits the data subject or serves a 
compelling market or public welfare need. Id., Part V. As two of many examples, Prof. Bambauer 
opines that, contrary to Prof. Turow’s concept of universal harm from CLEAR, when agencies 
use CLEAR to locate individuals to provide them with requested social services, or to return them 
to their family members, CLEAR benefits those individuals much more than it harms them. Id. at 
17-18. And, with respect to TR’s practices, Prof. Bambauer offers her opinion (based on 
substantial evidence) that CLEAR has adequate systems for safeguarding data and limiting access 
to only authorized use cases, directly rebutting Prof. Turow’s unevidenced assertions to the 
contrary. Doc. 151-2, Part VI.  
As with Dr. Kivetz, Plaintiffs also misconstrue Prof. Bambauer’s actual opinion. For 
example, they suggest Prof. Bambauer has hidden the ball by failing to acknowledge that 
California laws “vest individuals with a right to control their information.” Mot. at 13. But, 
putting aside the inappropriateness of expert testimony about California law, Prof. Bambauer’s 
report makes clear that “consent and data subject control have a major influence over whether 
privacy has been respected.” Doc. 151-2, at 6. Her challenge to Prof. Turow is that “avoiding 
privacy harms has never required absolute control to be vested in the data subject” and “scholars 
and lawmakers have understood that the broader social contract requires individuals’ interest in 
controlling information about them to be balanced against, and sometimes overcome by, other 
interests and needs.” Id.  
Plaintiffs also suggest that Prof. Bambauer “offers the Court her preferred alternative to 
California law–a tripartite, context-based framework for assessing privacy harms that she later 
admits is not used by other privacy scholars.” Mot. at 11. In reality, Prof. Bambauer offers that 
“tripartite, context-based framework” not as an “alternative to California law” but as a way of 
understanding that Prof. Turow is wrong that privacy law, privacy policy, or privacy scholars 
Case 3:21-cv-01418-EMC     Document 165     Filed 03/06/23     Page 13 of 21

 
CASE NO. 3:21-CV-01418-EMC 
11 
DEFENDANT THOMSON REUTERS’ OPP. TO M. 
TO EXCLUDE DEF.’S REBUTTAL EXPERTS 
 
 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
would require individuals to command absolute control over their personal information. See Doc. 
151-2, at 10-11. And, as for Plaintiffs’ suggestion that Prof. Bambauer is a fringe academic, she 
explained that her tripartite framework is “my way of helping to organize concepts that aren’t 
always given precise terminology.” Doc. 159-6, at 70:12-20. That is precisely the role an expert 
witness plays. Stencel v. Fairchild Corp., 174 F. Supp. 2d 1080, 1086 (C.D. Cal. 2001) (“An 
expert witness…helps the trier of fact understand…specialized topics.”).2 
ARGUMENT 
I. 
Dr. Kivetz is a qualified expert on consumer preference and opinion, which 
Plaintiffs’ own expert argues is relevant to assessing the existence and commonality 
of privacy “harm” in this case. 
Plaintiffs claim that Dr. Kivetz is not helpful to the Court because privacy harms cannot 
be measured by consumer expectations, but Prof. Turow himself rejected such an argument when 
he stated his own opinion is based on consumer opinion and perception. Dr. Kivetz agrees that 
Prof. Turow’s opinions about a universal “ethical and social” harm are, and must be, based on 
consumer opinion and perception, since they are not otherwise measurable (and Prof. Turow does 
not purport to measure them through any other means).  
A. 
Plaintiffs do not dispute that Dr. Kivetz is a qualified expert on consumer 
perception and preference. 
Dr. Kivetz is one of the world’s foremost experts on consumer psychology and behavior. 
Doc. 151-14, at 4. He teaches numerous graduate and doctoral courses at Columbia University 
regarding human judgment and decision-making, as well as consumer behavior and perception, 
including courses on high-technology and digital marketing. He has conducted, supervised, and 
evaluated over 1,000 consumer surveys. Id. at 6. Dr. Kivetz draws on that substantial experience 
to provide an opinion in this case about the consumer surveys cited by Prof. Turow. Id., Part D.3. 
And Dr. Kivetz collects, reviews, and offers his opinion to the court about academic literature 
regarding consumer privacy concerns and the numerous variables that impact consumer 
 
2 It is likewise disingenuous for Plaintiffs to say that Prof. Bambauer “admits that her work on 
privacy is itself not widely accepted.” Mot. at 13. Plaintiffs’ citations for that “admission” say 
nothing of the sort. It is Plaintiffs’ own expert that holds views “out of sync with generally-
accepted theoretical, academic, and historical frameworks,” as described above. Doc. 151-2, at 8.  
 
Case 3:21-cv-01418-EMC     Document 165     Filed 03/06/23     Page 14 of 21

 
CASE NO. 3:21-CV-01418-EMC 
12 
DEFENDANT THOMSON REUTERS’ OPP. TO M. 
TO EXCLUDE DEF.’S REBUTTAL EXPERTS 
 
 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
preferences with respect to privacy. Id., Part E.1. His analysis in this case is expressly based on 
“existing scientific research and treatises regarding survey design, consumer behavior, and 
decision making.” Id. at 8.  
Plaintiffs’ attacks on Dr. Kivetz’s qualifications all lack merit. Plaintiffs argue that Dr. 
Kivetz is unqualified to opine on “California[] privacy rights or the harms caused by their 
violation.” Mot. at 3. But Dr. Kivetz opines in this case on consumer preferences and consumer 
opinion, not California privacy rights (which would be an inappropriate subject for expert 
testimony).  
Plaintiffs also complain that Dr. Kivetz relies on “personal belief.” Mot. at 9. They have 
that backwards. It is Prof. Turow that relies primarily on ipse dixit for his opinion on the 
uniformity of a supposed harm in this case.3 To the extent Prof. Turow relies on any empirical or 
academic evidence, Dr. Kivetz directly rebuts that evidence and explains why it does not support 
(and in many cases directly refutes) Prof. Turow’s opinion. Doc. 151-14, at Parts D.3, D.4. Dr. 
Kivetz’s analysis of each survey cited by Prof. Turow is summarized in TR’s Motion to Exclude 
Prof. Turow’s Testimony, Doc. 157-4, at Part V.B.4  
Finally, Plaintiffs complain that Dr. Kivetz fails to “offer[] any specific suggestions of 
how the questions [in the surveys cited by Prof. Turow] could be improved.” Mot. at 10. But 
designing and executing a reliable survey to establish commonality is Plaintiffs’ burden, not Dr. 
Kivetz’s. See Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 31 F. 4th 651, 665 
(9th Cir. 2022) (“plaintiffs must prove the facts necessary to carry the burden of establishing that 
the prerequisites of Rule 23 are satisfied” and, to do so, “frequently offer expert evidence, 
including statistical evidence or class-wide averages”).  
 
3 As explained in TR’s motion to exclude Prof. Turow’s testimony, Doc. 157-4, Turow formed 
his opinions based on his own “sense . . . that if you told people what – what is in my report, they 
would freak out.” Doc. 157-10 at 152:20-153:4. That “sense” was derived from “read[ing] 
material that was provided to [him] about CLEAR including promotional materials by CLEAR . . 
. [and] “depositions that described some of CLEAR’s activities.” Id. at 27:8-14. 
4 Dr. Kivetz’s report cites to over 200 independent sources, including 61 case material documents 
(i.e., pleadings, discovery responses, deposition transcripts, and produced documents); 59 third-
party sources (i.e., peer-reviewed academic articles, textbooks, industry reports, etc.); and 104 
examples of CLEAR use cases (as summarized in Ex. D to his report).   
Case 3:21-cv-01418-EMC     Document 165     Filed 03/06/23     Page 15 of 21

 
CASE NO. 3:21-CV-01418-EMC 
13 
DEFENDANT THOMSON REUTERS’ OPP. TO M. 
TO EXCLUDE DEF.’S REBUTTAL EXPERTS 
 
 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
B. 
Consumer perception and preference are directly relevant to Prof. Turow’s 
opinion.  
Plaintiffs’ chief complaint with Dr. Kivetz is that he is not a privacy expert, but a 
consumer perception and preferences expert, a field of study which they contend is irrelevant and 
“wholly unresponsive to the harm alleged and the realities of the case.” Mot. at 6. But consumer 
perception and preference is—purportedly—the very evidence upon which Prof. Turow relies for 
his own opinion of consumer harm. See Doc. 157-10, 118:19-121:14. Consumer perceptions and 
preferences are therefore directly relevant to whether Prof. Turow can establish a scientifically 
sound basis for his opinion of universal consumer harm.  
Prof. Turow testified at deposition that his opinion was based on consumer perceptions: 
Q. All right. Are you rendering an opinion in this case as to the views of anyone 
other than scholars? 
A. Yes. 
Q. Who? 
A. The public. 
Q. Ah, okay. Are you offering opinion in this case regarding consumer perceptions? 
A. Yes. [objection lodged] People's desire not to be -- the desire to have their -- to 
control their information, yes. 
Q. And that's as reflected in the empirical survey that we've discussed previously 
that's Exhibit 2? 
A. Plus other work that I've done and others have done. 
Q. So is your opinion in this case purporting to reflect consumer perceptions[...?...] 
A. Yes. 
Q. Okay. So the answer is yes? 
A. Yes. 
Q. All right. And on what topics? 
A. On the right to control one's information. 
Q. Where does your report discuss consumer perceptions of the right to control one's 
information? 
A. I discuss the -- tell you in just a second. Look at Page 6 and look at Footnote 6 
and you'll see that. 
Q. I see. Terrific. So at Footnote 6 and the materials cited in Footnote 6, this is where 
you -- this is one place your report addresses consumer perceptions? 
A. Yes. 
Q. What -- is there any other place in your report where you address consumer 
perceptions? 
A. (Reviewing document.) I think that is the dominant one. The -- the pamphlet that 
I cite when the discussions were taking place around the California amendment to 
the Constitution one could argue are enactments of -- of some consumer's interests, 
but the -- but that footnote and the various studies I cite are -- are the clear statement 
of my sense of that, yes. 
Q. I want to make sure we captured your testimony clearly. Did you testify that the 
Case 3:21-cv-01418-EMC     Document 165     Filed 03/06/23     Page 16 of 21

 
CASE NO. 3:21-CV-01418-EMC 
14 
DEFENDANT THOMSON REUTERS’ OPP. TO M. 
TO EXCLUDE DEF.’S REBUTTAL EXPERTS 
 
 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
footnote and the various studies you cite are a clear statement of your sense of 
consumer perceptions? 
A. Yeah, not my sense, but a clear statement of consumer sentiments regarding the 
desire to control their information. 
Doc. 157-10, 118:19-121:14. Prof. Turow’s report was similarly explicit that his opinion was 
based on consumer perceptions. His report states: “The long history of protecting privacy through 
the right to control one’s information is reflected in the view of privacy enunciated by Americans 
today.” Doc. 124-7, at 6. He then cites to the 2015 Pew Research survey and the NTIA survey. 
Dr. Kivetz analyzes both in great detail. See Doc. 151-14, at D.3.5 (entitled “The results from the 
2015 Pew Research Center Survey Contradict Dr. Turow’s Assumption 1 and Fail to Support 
Assumption 2”); id. at Part D.3.2 (explaining that the survey results reflect that “only a minority 
of participants perceived control over ‘personal data’ as important”) (emphasis in original)); see 
also Doc. 157-04, Part V.B (summarizing Dr. Kivetz’s conclusions about these surveys).  
Prof. Turow attempts to rely on consumer perception and opinion, ostensibly, because 
Plaintiffs themselves recognize that an “expert” cannot simply flash their credentials and 
recognize a legally cognizable privacy “harm” for tens of millions of putative class members. 
TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2209 (2021) (“the ‘retention of information 
lawfully obtained, without further disclosure, traditionally has not provided the basis for a lawsuit 
in American courts,’ meaning that the mere existence of inaccurate information in a database is 
insufficient to confer Article III standing.”) (quoting Braitberg v. Charter Comm’s, Inc., 836 F. 
3d 925, 930 (8th Cir. 2016)). In Plaintiffs’ own words: an expert cannot “create admissible 
evidence simply by placing their credentials behind the statements of a party, and ‘parroting’  
those statements as their own.” Mot. at 8 (citation omitted). Instead, that expert must support their 
opinion with “actual facts and data.” Id. (cleaned up).  
But if Plaintiffs now claim Prof. Turow did not support his opinion with facts and data as 
a means to exclude Dr. Kivetz’s testimony,5 it is Prof. Turow’s report, not Dr. Kivetz’s, that 
ought to be excluded. After all, if Prof. Turow merely offers an opinion about privacy law, then 
his opinion should be excluded as a legal conclusion. Doc. 157-4, Part V.C. If he is merely 
 
5 See Mot. at 6 (arguing that consumer preference is “wholly unresponsive to the harm alleged”). 
Case 3:21-cv-01418-EMC     Document 165     Filed 03/06/23     Page 17 of 21

 
CASE NO. 3:21-CV-01418-EMC 
15 
DEFENDANT THOMSON REUTERS’ OPP. TO M. 
TO EXCLUDE DEF.’S REBUTTAL EXPERTS 
 
 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
relying on his qualifications as a privacy scholar to provide an ipse dixit opinion on CLEAR’s 
privacy harms, then his opinion is precisely what Daubert is intended to exclude. Id., Part V.A.  
More, if Plaintiffs are now contradicting their own expert and claiming that consumer 
preference is irrelevant, then they are merely disagreeing with Dr. Kivetz’s substantive opinion 
about the methodological support necessary to support Prof. Turow’s arguments about harm.6 
And disagreeing with the substance or chosen methodology of a report is not the proper subject of 
a Daubert determination. Kennedy v. Collagen Corp., 161 F.3d 1226, 1231 (9th Cir. 1998) 
(arguments about faults in an expert’s “use of a particular methodology…go to the weight, not the 
admissibility, of his testimony.”) (cleaned up).  
C. 
Plaintiffs’ authority supports admitting Dr. Kivetz’s opinion. 
None of the cases Plaintiffs cite support excluding Dr. Kivetz’s opinion. For example, 
Plaintiffs cite Red v. Kraft Foods, Inc., No. CV 10-1028-GW(AGRx), 2011 WL 4599833 (C.D. 
Cal. Sept. 29, 2011) as authority for “finding Kivetz’s individuated consumer expectation theory 
 
6 Part of Dr. Kivetz’s substantive testimony is about why consumer perceptions and preferences 
are relevant to assessing whether putative class members suffer a privacy harm from CLEAR. 
Doc. 151-14, at Part D.1. Dr. Kivetz directly quotes from relevant literature on this point–
literature that characterizes Prof. Turow’s opinions as “emotionally charged” and calls for 
empirical research to move beyond those opinions:  
 
A large body of normative studies of privacy has accumulated. Many of these 
offerings are politically engaging or emotionally charged with strong beliefs about 
the ethics and norms that underlie democratic societies. […] [R]igorous 
empirically descriptive studies that either trace processes with, or test implied 
assertions from, these value-laden arguments could add great value. 
… 
[T]o the extent that the normative conclusions are viewed as enlightening and 
motivating events for empirical studies that trace processes associated with the 
implementation of these normative conclusions or that test the impact on different 
outcomes, their value rises enormously. For example, an emotionally charged 
assertion such as “there is war on privacy” (e.g., Sobel 1976) or “the system is 
broken” (Turow 2003), or a lengthy normative debate regarding whether 
privacy should be viewed as a right or as a commodity will yield little additional 
insight. The normative debates themselves are unlikely to inform us further in terms 
of privacy protection, but an examination of the positivist nomological models 
that link the normative conclusions to different outcomes, or the processes 
through which that linkage occurs, could prove quite instructive. 
 
Id. at 82 (quoting Smith, H. Jeff, Tamara Dinev, and Heng Xu (2011), “Information Privacy 
Research: An Interdisciplinary Review,” MIS Quarterly, 35(4), 989 – 1015)) (emphases added).  
Case 3:21-cv-01418-EMC     Document 165     Filed 03/06/23     Page 18 of 21

 
CASE NO. 3:21-CV-01418-EMC 
16 
DEFENDANT THOMSON REUTERS’ OPP. TO M. 
TO EXCLUDE DEF.’S REBUTTAL EXPERTS 
 
 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
did not defeat class certification.” Mot. at 6. That is incorrect. Red was an order denying class 
certification and expressly relying on Dr. Kivetz’s opinion to do so. Red, 2011 WL 4599833, *12-
13. Specifically, Red involved a UCL allegation that the labeling of certain Kraft food products 
was deceptive regarding their healthfulness. Id. at *2. Dr. Kivetz opined that “Kraft’s alleged 
deception cannot be generalized across the proposed class.” Id. *12. The court found that the 
“Kivetz Declaration casts further doubt on Plaintiffs’ ability to prove their claims by common 
evidence insofar as he testifies … [that] there is no scientific evidence to support the 
generalization of the alleged deception to the entire proposed class; and [] the Plaintiffs’ 
testimonies do not support generalizing the alleged deception across the proposed Class 
members.” Id. at *13 (typographical error corrected). That court concluded: “Because there are 
significant questions as to the over-breadth of the proposed class, whether it is ascertainable, 
whether common issue of fact predominate, whether Plaintiffs are typical of the purported class, 
and whether California law applies to the claims of nonresidents, the Court would deny without 
prejudice Plaintiffs’ motion for class certification.” Id. at *16.  
Plaintiffs also cite Farar v. Bayer AG, No. 14-cv-04601-WHO, 2017 WL 5952876, at *12 
(N.D. Cal. Nov. 15, 2017). There, the Court found Dr. Kivetz’s survey (testing the effect of 
certain challenged packaging claims on consumers’ purchase likelihood for the disputed vitamin 
products) to be inconclusive on the issue of materiality in light of the weight of other evidence. 
Id. Dr. Kivetz’s opinion was not excluded or criticized in that case.  
Indeed, Dr. Kivetz’s opinions, testimony, or surveys have never been excluded or 
criticized by a court. See, e.g., Dyson, Inc. v. Bissell Homecare, Inc., 951 F. Supp. 2d 1009, 1016-
22 (N.D. Ill. 2013) (denying motion to exclude expert report of Dr. Kivetz); People v. Kohl’s 
Dep’t Stores, Inc., Nos. BC643037, BC643040, 2021 WL 3507072 (Cal. Super. Ct. July 13, 
2021) (rejecting California’s expert who “simply opined based on decades of scientific research” 
and praising the “highly competent and entirely credible” Dr. Kivetz for his explanation of why 
California’s expert offered no reliable empirical evidence for his conclusions).   
Dr. Kivetz’s opinion is admissible because his specialized knowledge of consumer 
perceptions and preferences will help the Court evaluate Prof. Turow’s testimony. 
Case 3:21-cv-01418-EMC     Document 165     Filed 03/06/23     Page 19 of 21

 
CASE NO. 3:21-CV-01418-EMC 
17 
DEFENDANT THOMSON REUTERS’ OPP. TO M. 
TO EXCLUDE DEF.’S REBUTTAL EXPERTS 
 
 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
II.  
Professor Bambauer’s opinion should not be excluded for failing to offer 
inadmissible and irrelevant legal conclusions.  
Plaintiffs devote four pages to arguing that Prof. Bambauer’s testimony is inadmissible 
because she “fail[s] to even reference California law,” “simply ignore[s] California law in her 
opinion,” and “does not focus on - or even reference - California privacy law.” Mot. at 11-14. 
Those arguments fail for at least two reasons.  
First, it is axiomatic that experts do not opine on the law. That is the court’s role. See, 
e.g., United States v. Tamman, 782 F.3d 543, 552-53 (9th Cir. 2015) (“[A]n expert cannot testify 
to a matter of law amounting to a legal conclusion.”); Traumann v. Southland Corp., 858 F. Supp. 
979, 985 (N.D. Cal. 1994) (“Mr. Murphy’s opinions regarding California franchise laws and their 
application to this case are not a proper subject for expert testimony because they do not help 
determine the facts in issue. Expert testimony must embrace factual issues and may not include 
legal opinions or conclusions.”) (citations omitted). That Plaintiffs believe that experts ought to 
opine on the law is evident from Prof. Turow’s own report, and is an independent reason his own 
opinion ought to be excluded. See Doc. 157-4, at 12-13; see also Nationwide Transport Finance 
v. Cass Info. Sys’s, Inc., 523 F. 3d 1051, 1059 (9th Cir. 2008) (an opinion about whether certain 
conduct violates existing law is inadmissible either because it is opinion on a legal conclusion or 
because it is lay opinion not “helpful to a clear understanding of the testimony or a fact in issue.”) 
(cleaned up).  
Second, Plaintiffs’ argument is substantively wrong. There is no reason for Prof. 
Bambauer to offer an opinion on CLEAR with respect to California privacy laws, because it 
appears undisputed that TR is in compliance with them. As described in detail by the Amici 
Curiae Brief In Support of Defendant, the California Legislature is a vanguard in consumer 
privacy, having passed numerous laws protecting Californians’ privacy rights. Doc. 156. CLEAR 
comports with these. Id. Plaintiffs do not allege that TR violated any California privacy statute or 
law and Plaintiffs do not bring claims under California’s constitution or any other California 
privacy law. See generally Doc. 145. Instead, Plaintiffs allege that TR’s provision of CLEAR is 
unfair and unjust because it collects and makes available to third parties data about Californians 
Case 3:21-cv-01418-EMC     Document 165     Filed 03/06/23     Page 20 of 21

 
CASE NO. 3:21-CV-01418-EMC 
18 
DEFENDANT THOMSON REUTERS’ OPP. TO M. 
TO EXCLUDE DEF.’S REBUTTAL EXPERTS 
 
 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
without consent—something that existing California laws do not prohibit. Doc. 150-4, at 22-23; 
Doc. 156. And neither Plaintiffs nor Prof. Turow has identified a single provision of any 
California privacy law that TR violates through its operation of CLEAR. In other words, because 
Plaintiffs’ “absolutist approach to privacy” has been “rejected” by “every modern data privacy 
statute,” there is no substantive reason that Prof. Bambauer would need to discuss existing 
California law. Doc. 151-2, at 8.7 
CONCLUSION 
 
For the foregoing reasons, Plaintiffs’ Motion should be denied. 
 
 
 
Dated: March 6, 2023 
PERKINS COIE LLP 
 
 
By: /s/ Hayden M. Schottlaender 
 
 
Hayden M. Schottlaender 
HSchottlaender@perkinscoie.com  
Admitted pro hac vice 
 
Attorneys for Defendant Thomson Reuters 
Corporation 
 
 
 
 
 
 
7 Plaintiffs’ repeated references to Prof. Bambauer’s Congressional testimony about the 
California Consumer Privacy Act are unavailing. Mot. at 12. Prof. Bambauer’s testimony there 
was entirely consistent with her opinions offered in this case. See Jane Bambauer, The Perils of 
Privacy as Property, Testimony before the Senate Judiciary Committee, 116th Cong. (Mar. 12, 
2019), at 5-6 available at 
https://www.judiciary.senate.gov/imo/media/doc/Bambauer%20Testimony.pdf (“on balance, 
consumers are not greatly interested in managing the particulars of their personal data…An 
optimal privacy law will protect consumers from data-related harm while also protecting them 
from the less obvious costs of data siloing and underutilization...without unduly focusing on 
consumer control.”).   
 
Case 3:21-cv-01418-EMC     Document 165     Filed 03/06/23     Page 21 of 21

File and source

File

gov.uscourts.cand.374304.165.0.pdf

Size

258,393 bytes

SHA-256

5cc0d6fa405d429d10a3dcd28e477164e7ad8c7eea411eb3960566b341bf5ecd

Our copy

gov.uscourts.cand.374304.165.0.pdf

Original

PACER (login required)