Dubin Testimony - AM Part I (pp 5088-5149) 1 IN THE ... ·...

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Dubin Testimony - AM Part I (pp 5088-5149)page 5084

1 IN THE SUPERIOR COURT OF CALIFORNIA 2 COUNTY OF SACRAMENTO, STATE OF CALIFORNIA 3 HONORABLE RICHARD K. PARK, DEPARTMENT 39 4 ---oOo--- 5 OAKLAND RAIDERS, a California Limited ) 6 Partnership, and A.D. Football, Inc., ) 7 a California Corporation, ) 8 Plaintiff, ) 9 )10 vs. ) Case Number11 ) 97AS0670812 OAKLAND-ALAMEDA COUNTY COLISEUM, )13 INC., EDWIN O. DESILVA; AND )14 ARTHUR ANDERSEN, LLP, )15 Defendants. )16 _________________________________________)17 18 19 ---oOo--- 20 21 WEDNESDAY, MAY 21, 200322 PAGES 5088 TO 23 24 ---oOo---25 26 REPORTERS' TRANSCRIPT OF PROCEEDINGS27 28 ---oOo---29 30 31 32 33 34 ---oOo---35 MELY CHENG, CSR NO #680036 TARA K. HALL, CSR NO. 1051637

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1 A P P E A R A N C E S 2 3 ---oOo--- 4 5 FOR THE PLAINTIFFS: 6 DREYER, BABICH, BUCCOLA & CALLAHAM, LLP 7 BY: ROGER A. DREYER, Attorney at Law 8 715 University Avenue 9 Sacramento, California 9582510 (916)920-211111 HOWARD RICE NEMEROVSKI CANADY FALK & RABKIN, LLP12 BY: JONATHAN W. HUGHES, Attorney at Law13 Three Embarcadero Center, Seventh Floor14 San Francisco, California 9411115 (415)434-160016 FOR THE DEFENDANTS OAKLAND-ALAMEDA COUNTY COLISEUM AND 17 EDWIN O. DESILVA:18 19 MORRISON & FOERSTER, LLP20 BY: JAMES J. BROSNAHAN, ARTURO J. GONZALEZ, 21 GEORGE HARRIS, AND MELISSA JONES, Attorneys at Law22 425 Market Street23 San Francisco, California 9410524 (415)268-732825 26 FOR THE DEFENDANT ARTHUR ANDERSEN:27 28 COBLENTZ, PATCH, DUFFY & BASS, LLP29 BY: FREDERICK S. FIELDS, Attorney at Law30 222 Kearny Street, 7th Floor31 San Francisco, California 9410832 (415)391-480033 34 KRIEG, KELLER, SLOAN, REILLEY & ROMAN, LLP35 BY: STAN G. ROMAN, Attorney at Law36 114 Sansome Street, 7th Floor37 San Francisco, California 9410438 (415)249-833039 40



41 ---oOo--- 42 43 44

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1 I N D E X 2 ---oOo--- 3 4 JEFFREY A. DUBIN 5 Direct examination by Mr. Dreyer 5090 6 Cross-examination by Mr. Harris 5244 7 8 9 10 11 ---oOo---12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29

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1 INDEX OF EXHIBITS 2 ---oOo--- 3 Exhibits for the Plaintiff: 4 NO. DESCRIPTION ID. EVD. 5 424 DOCUMENT 5135 6 425 DOCUMENT 5140 7 430 DOCUMENT 5193 8 431 DOCUMENT 5193 9 432 DOCUMENT 5197 10 433 DOCUMENT 5199 11 435 DOCUMENT 5200 12 436 DOCUMENT 5201 13 438 DOCUMENT 5208 14 439 DOCUMENT 5210 15 440 DOCUMENT 5216 16 442 DOCUMENT 5220 17 443 DOCUMENT 5221 18 444 DOCUMENT 5228 19 445 DOCUMENT 5182 20 21 ---oOo---22 23 24 25 26 27 28

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1 WEDNESDAY, MAY 21, 2003 2 MORNING SESSION 3 --oOo-- 4 The matter of OAKLAND RAIDERS, a California Limited 5 Partnership, and A.D. FOOTBALL, INC., a California 6 Corporation, Plaintiff vs. OAKLAND-ALAMEDA COUNTY COLISEUM, 7 INC.; EDWIN O. DESILVA; and ARTHUR ANDERSEN, LLP, Defendants, 8 Case Number 97AS06708, came on regularly this day before the 9 Honorable RICHARD K. PARK, Judge of the Superior Court 10 District of the State of California, in and for the County of 11 Sacramento, Department 39.12 The Plaintiffs OAKLAND RAIDERS, a California Limited 13 Partnership, and A.D. FOOTBALL, INC., a California 14 Corporation were represented by ROGER A. DREYER 15 AND JONATHAN W. HUGHES, Attorneys at Law. 16 The Defendants OAKLAND-ALAMEDA COUNTY COLISEUM, INC.; 17 EDWIN O. DESILVA; were represented by JAMES J. BROSNAHAN, 18 ARTURO J. GONZALEZ, AND GEORGE C.HARRIS AND MELISSA JONES, 19 Attorneys at Law. 20 The Defendant ARTHUR ANDERSEN was represented by 21 STAN G. ROMAN and FREDERICK S. FIELDS, Attorneys at Law. 22 The following proceedings were then had in the presence 23 of the jury, to wit:24 THE BAILIFF: Remain seated. Come to order. 25 Department 39 is in session.26 THE COURT: Good morning. I'm glad to see we're back 27 with a full complement of jurors. 28 Michelle, how are you feeling?

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1 JUROR SWART: Yes, better. 2 THE COURT: I really want to thank you on behalf of the 3 Court and the lawyers and their parties for participating by 4 telephone yesterday. I know that must have been a real chore 5 for you not feeling real well having the phone glued to you 6 your ear all morning. 7 JUROR SWART: It wasn't too bad. 8 THE COURT: It wasn't too bad. Thank you very much for 9 doing that.10 THE COURT: Who's the next witness?11 MR. DREYER: Dr. Jeffrey Dubin, your Honor.12 THE CLERK: Raise your right hand. Do you solemnly 13 state that the testimony you may give in the cause now 14 pending before this court shall be the truth, so help you 15 God?16 THE WITNESS: Yes, I do.17 THE CLERK: Please have a seat.18 THE COURT: Skipper, would you get me a fresh pad of 19 paper, please. 20 THE CLERK: Would you please state your name and spell 21 your last name for the record.22 THE WITNESS: Yes, it's Jeffrey A. Dubin, D-U-B-I-N.23 THE CLERK: Thank you.24 THE CLERK: How do you spell Jeffrey?25 THE WITNESS: J-E-F-F-R-E-Y.26 THE CLERK: Thank you.27 THE COURT: Thank you, Skipper. 28 MR. DREYER: You have a few note pads there.

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1 THE COURT: I'm on notepad number eight. 2 Let's roll. 3 TESTIMONY OF 4 JEFFREY A. DUBIN, witness called on behalf of the Plaintiff: 5 DIRECT EXAMINATION 6 BY ROGER A. DREYER, Counsel on behalf of the Plaintiff: 7 Q Dr. Dubin, can you tell us the nature of your 8 occupation? 9 A I am a Professor of Economics at the California 10 Institute of Technology in Southern California.11 Q The doctor is in reference -- are you a medical doctor, 12 PhD, what is the nature of that doctor?13 A It's a PhD.14 Q Along with being a professor down at California 15 Institute of Technology, do you have a consulting business or 16 a private business as well?17 A Yes. I'm a co-founding partner of a consulting firm 18 called Pacific Economics Group.19 Q What does Pacifics Economics Group do?20 A It's a firm that provides economic and statistical 21 management consulting to a variety of clients sometimes in a 22 litigation setting, sometimes for management consulting 23 purposes giving advice to people about prices, what other 24 problems might come up.25 Q Okay. The field of economics, we're going to talk 26 about you and your background, but can you just generally 27 tell us the scope of the field of economics?28 A Economics is a pretty big discipline. It's -- I

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1 think of it -- the way we teach it, it comes about in two 2 pieces. It's microeconomics and macroeconomics. 3 And macroeconomics is the discussion of the economy, 4 how income is going up or what's happening with labor, what's 5 happening with the stock market. That part of the 6 macroeconomy, sort of the economy and aggregate. And then 7 there's is microeconomics which is the study of individual 8 behavior. 9 Q And give us an example when you talk about 10 microeconomics what are we discussing just as an example?11 A A microeconomist would, for example, consider how 12 consumers make decisions at the grocery store or a 13 microeconomist might try to figure out what will happen if 14 prices go up. Will people buy less of something? What will 15 happen if someone losses their job? How long will it take 16 before they become re-employed? Those are microeconomic kind 17 of questions.18 Q What kind of economist are you?19 A I'm more of a microeconomist although I've studied and 20 taught in both areas. I would not consider myself a deep 21 macroeconomist.22 Q All right. Now, in connection with who you are, let's 23 take some time to go through that. 24 You're -- the California Institute of Technology, where 25 is that located?26 A Cal Tech is a private school in Southern California in 27 Pasadena.28 Q All right. And student population?

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1 A It's pretty small. I don't remember the numbers 2 exactly off the top of my head, but I think Cal Tech has 3 about 800 undergraduates, maybe 200 per class. They'll 4 typically admit 400 students from around the country, and 200 5 will actually accept and come, and if they choose Cal Tech, 6 they're usually rejecting Harvard or Stanford or the other 7 big places. 8 Q In terms of your educational background, where did you 9 attend undergrad?10 A I went to school at not so far from here at 11 U.C. Berkley.12 Q When did you graduate from Berkley?13 A I graduated in 1978.14 Q Okay. And your course of study at Berkley, what was 15 your plan so to speak after you got to school, what did you 16 intend to do?17 A I was pretty heavily into mathematics, you know. I 18 know it sounds a little nerdy, but I did a lot of math when I 19 was in high school, and a lot of self-study, and I thought I 20 was going to be a mathematician, and then I got to Berkley 21 and met my advisor, and he put it to me like, "Do you love 22 mathematics?" And I said, "Well, you know, I don't know if I 23 love it. I really like it," and I think it was at that point 24 I decided I was probably not going to be a mathematician for 25 the rest of my life.26 Q What did you end up majoring in?27 A Well, by I think almost consequence I took an economics 28 class almost right off from the bat, and I found it really

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1 interesting and discovered quickly that it had a lot of math 2 in it. In fact, economics can be very mathematical, so I 3 ended up majoring in mathematics and economics with a minor 4 in statistics and mathematics and computer science. 5 Q Now, let's talk about those minors. 6 Statistics, does that assist you in being an economist? 7 A Very much so. 8 Q How? 9 A Well, I apply statistical methods which are analyzing 10 data that we collect to economic problems, so I'll pose an 11 economic problem or someone will pose one for me, and my 12 method will be to go out and collect historical data or data 13 about consumers and try to learn something from that data 14 and that requires statistics. 15 Q All right. 16 A And statistics is the course that actually everybody is 17 scared of, but with a learning curve and baby steps, it 18 actually can be very friendly.19 Q Is it as dry as it sounds?20 A Well, I haven't convinced my children to become 21 statisticians. It's pretty dry, and I don't try to talk 22 about it with my wife either.23 Q In terms of your computer studies, computer science, 24 what is that?25 A Well, I was around at Berkley -- I had been around 26 computers since I was a 13 year-old when the first computers 27 were large main frames at Berkley, and they were making them 28 available to, you know, junior high students through special

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1 programs. This was way before the days of PCs even, and I 2 was pretty good at computer -- I learned how to computer 3 program, and I would write software, and I took courses in 4 that, and that later became a big part of what I did. 5 Q When you were going to Berkley and you were minoring in 6 statistics and computer science, was computer science a 7 developing course work at that point in time? 8 A Well, computer science actually was pretty developed 9 but it was developing. There was plenty to study. They know 10 a lot more than they did. I mean, this was the dark ages 11 when there were no computer screens, there were no mouse. 12 You know, you couldn't just move something around and it 13 would all happen before your eyes. 14 You would have to talk to the computer with paper 15 cards, and you would have to go into one room and type out 16 instructions that were in arcane languages and feed them to 17 the computer, and students would go in the middle of the 18 night and hand the cards to the computer and then wait 19 patiently for the output to come back out. It was much 20 harder back then. 21 Q Okay. Now, when did you graduate?22 A College I graduated in 1978.23 Q And with what kind of a degree?24 A It was a Bachelors in economics.25 Q Was it with distinction?26 A Yes. It was with distinction and honors they call it.27 Q All right. The highest level?28 A Yes.

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1 Q Now, once you completed your course of study at 2 Berkeley, what was -- you now have your degree. 3 What was the next step for Jeffrey Dubin at that time? 4 A Well, I was pretty heavily into economics by that time, 5 and I decided I would go into graduate school for further 6 study, so like an undergraduate might choose to become a 7 doctor, they go to medical school, I went to graduate school 8 in economics. 9 Q Where?10 A I went back to the Massachusetts Institute of 11 Technology, MIT, in Cambridge, Massachusetts.12 Q Now, in the scheme of things in the field of economics 13 and mathematics, where does MIT stand?14 A Well, MIT actually continues to be the top ranked 15 economics department in the entire country. It's very 16 interesting.17 Q In terms of schools when they rank schools, is faculty 18 a factor?19 A Sure. I mean, faculty is a factor and the publication 20 record of the faculty, the research they're doing, quality of 21 the graduate program, the access to the professors.22 Q Now, the professors that you had access to at MIT, 23 understanding they may not be household words in the general 24 population, in the field of economics, were they, in fact, 25 household type names?26 A Oh, for sure. I mean, one professor with a Nobel Prize 27 that I took classes with was a guy named 28 Professor Samuelson who is a very famous person that had

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1 written sort of the textbook for undergraduates in 2 economics. 3 I took courses with another Nobel Prize winner 4 Professor Bob Solow. I study with Franco McDuglioti 5 {phonetic} that was another Nobel Prize winner. I studied 6 with several Nobel Prize winners while I was at MIT. 7 Q And people that you studied with, were there others 8 that went on to be awarded the Nobel Prize? 9 A When you are a PhD student, you take course work for a 10 couple years, most students take the same courses, and then 11 you differentiate. You pick a professor to work with or they 12 pick you. And I found a professor Dan McFadden -- 13 Danny McFadden, who I had known from Berkeley. He went to 14 MIT by coincidence at the same time I did.15 Q And Dr. McFadden ultimately was a recipient of the 16 Nobel Prize?17 A He won the Nobel just a couple years ago, yes.18 Q Now, in terms of your relationship with 19 Professor McFadden, what involvement, if any, did he have 20 with your dissertation and your course work to get your PhD?21 A Well, a lot of involvement. I had a leg up over some 22 of the other graduate students because when I got to MIT, I 23 knew of this guy from Berkley, and I knew he was a -- had a24 great reputation and my other students didn't, so I sought 25 him out for a summer job quickly on, and I latched onto him, 26 and I had him more or less to myself for the -- I guess the 27 remaining three years after my basic course work, so I had a 28 lot of access to Professor McFadden.

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1 Q Maybe you can explain to us what happens over three 2 years in economics to obtain a PhD? 3 A Well, you're taking that first year of course work, and 4 then you're doing three years of additional research, and 5 it's the same more or less with my students now, but you pick 6 a topic to research on your own. You pick a topic, and you 7 pick a topic that's interesting, and you get it approved by 8 the professor who says yeah, that's a good problem to work 9 on. You're going to make some progress in the field or 10 whatever. 11 And then you concentrate your intellectual activity on 12 that one project for that entire time. It's an empirical 13 project. You have to go collect the data.14 Q Empirical means what?15 A Empirical means the study of actual phenomena in 16 nature in looking outside the blackboard of the classroom.17 Q Now, what did you end up doing your dissertation on?18 A Well, these were the hay days of the energy crisis, I 19 guess the first energy crisis. We had another one more 20 recently, but I wrote my dissertation about consumer's 21 demands for electricity in the United States.22 Q The concept of demand by consumers, is that something 23 that you deal with in microeconomics?24 A Yes. Almost -- well, a good hunk of microeconomics is 25 the study of consumers and how they behave and how they 26 react, and economists have actually developed a set of 27 theories about how consumers react to products and prices and 28 how they make decisions.

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1 Q How do economists get that information, what's the 2 source of data? 3 A Well, you can get the information a variety of 4 different ways. You can go out and run a survey where you'll 5 ask people some questions like, did you buy something or 6 would you buy something if the price were different? But the 7 primary way we get data is we look historically at actual 8 observations. 9 So for instance, I guess a great example would be every 10 time we go through the grocery store we're buying things, and 11 we're not even thinking about the bread and the orange juice 12 and the milk, all of these things are going across the 13 scanner, and actually, there's a computer behind that that's 14 collecting data, and it's not just that they're ringing you 15 up and taking your money, they're actually collecting a lot 16 of data about you. 17 Then they turn around and either think about what that 18 data means themselves or typically they'll sell it to someone 19 else who then goes and finds someone that can analyze it and 20 tell a story from it ultimately to tell the grocery store you 21 ought to be sending out coupons to this consumer, you ought 22 to lower the price of orange juice this week, that sort of 23 thing.24 Q So how do they correlate that though? Who does that 25 work when they get the information from the products, and I 26 take it they look at the demographics, the location of the 27 store, where it is, the volume, that sort of thing?28 A Yeah. They're correlating a whole bunch of things. I

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1 think the most interesting thing is we all know about the 2 supermarket value cards, and you know that you give them 3 those cards, and often you get discounts because of that. 4 Well, it's not so much the discounts that are really at 5 work there. That may be fun for us, but they're tracking who 6 the individual is who is buying the product. They know it's 7 you. They know sometimes where you live, and you may have 8 surrendered at some other point in your life your e-mail 9 address, so they're taking that data and selling that to 10 somebody else who now has your e-mail address. They've got 11 what your purchases were, and this data is very valuable for 12 people who know what to do with it.13 Q As far as Jeffrey Dubin is concerned, is that the kind 14 of thing where you'll be retained to do an analysis based 15 upon that kind of statistical information and make some 16 opinions to a client?17 A It's exactly the kind of project I would do. I'm one 18 of the specialists in analyzing that kind of data.19 Q In terms of let's say another example, let's talk about 20 like catalogs?21 A Uh-huh.22 Q Mail order catalogs that we get in the mail, products 23 or stores that we shop at, is that another form by which the 24 information is gathered that's given to microeconomis 25 specialists like yourself to make opinions and 26 recommendations to producers as to how to market their 27 product?28 A Yes. I was involved in a project that was exactly like

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1 that with a company called Finger Hut in Minnesota. They 2 called me, and they said we've been warehousing data for 30 3 years keeping track of every catalog we've sent to people and 4 how they've -- how they reacted to it, what they bought. 5 Did they buy the towels? Did they buy the plates with 6 the geese on them? And they wanted more scientific methods 7 to look at the question of how can they stop sending so many 8 catalogs to people because, you know, if it's like -- you 9 know, if you're like me, the mailbox is stuffed every day. 10 It's actually costly for the companies to send so many. If 11 they can figure out some way to send fewer catalogs but get 12 the same response, that's valuable to them and they called me 13 to do that.14 Q That's kind of the target concept, getting the 15 information, looking at the demographics, and then targeting 16 people who will respond positive as opposed to people who17 throw it in the can?18 A That's one of the things you would look at. The 19 richness of the data that people -- that's collected on us is 20 phenomenal and scary simultaneously. Finger Hut, for 21 instance, would purchase as much data as they could about 22 people. God knows what they did with it. 23 They would find, for instance, based on your street 24 address, they would have one data source that would find how 25 many rusty old cars were on your street, if any, whether 26 there was a motor boat parked outside. 27 They would find other things to kind of type people 28 into certain groups, put them in an A group, B group or C

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1 group in such a way that they could figure out how a 2 promotion was going to affect them later. 3 Q Now, in your work and to get back to your -- some of 4 your other practical experience, because of your computer 5 science background, because of your microeconomics 6 background, have you developed hardware or computer software, 7 excuse me, that deals with this topic that is now out there 8 that economists use? 9 MR. HARRIS: Objection. Vague and ambiguous.10 THE COURT: Overruled.11 THE WITNESS: Yes. I actually wrote one of the most 12 important and leading pieces of econometric or statistical 13 software in the mid 1980s.14 Q Okay. How can you sit there and tell us that you did 15 it. Tell us why is it that it was -- it stands in that 16 position?17 A Why did I do it?18 Q Not why you did it. Why you believe it's one of the 19 most important things?20 A Well, I'm not Bill Gates or anything, but it did sell 21 all over the world, and it was used at major universities 22 around the country. It wasn't the best seller that I could 23 retire or anything, because I sort of overestimated the 24 market for statistical software. I figured everybody would 25 want one of these packages. It only turned out academics and 26 people in businesses wanted them, but you know -- 27 Q What does this program do for those who do want it?28 A I should have brought brochures. It's a piece of

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1 software that now runs on PCs, so when I first got to Cal 2 Tech, I took my first job as an assistant professor when I 3 graduated from MIT. When I first got to Cal Tech, PCs were 4 just brand new. They were very expensive. 5 But just to give you some idea of how long ago this was 6 in 1982 or 1983, '84, when the first PCs were coming out, 7 they were a PC-XT, maybe IBM was a $5,000 box that weighed, 8 you know, as much as this chair, and very little software 9 existed on them, and they weren't visual, they didn't have 10 any colors and all of that sort of thing. 11 But we -- I and one other professor at Cal Tech who's 12 now at Stanford, formed a company and we starting developing 13 software to do econometrics on the PC.14 Q Okay. Can you define for the jury what this word 15 econometerics means?16 A Sure. Econometerics is the application of statistics 17 and data analysis to economic problems, and that's my area of 18 specialty.19 Q What does that mean in a real sense, you know, lay 20 terms, what does econometerics do for us?21 A It allows -- it provides a set of techniques and 22 methods and computer programs and theories about how to 23 collect data and how to analyze it to test theories or 24 hypotheses and make predictions about the future.25 Q Okay. From an economic standpoint, is getting data, 26 analyzing it, and making predictions, is that a critical part 27 of what economists do?28 A There are many economists that do that. Yes, it's a

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1 very critical part. 2 Q Why is being able to predict the future in the 3 microeconomic field important? 4 A Because many problems are reduced to questions about 5 what will happen in the future for microeconomic agents or 6 consumers, so how will a business react in the future and how 7 will a consumer react? And those are questions that are 8 amenable to statistical technique. 9 Q This information, the use of the information as the 10 computer technology has improved, has that made the 11 information -- the volume of information that much more 12 accessible in terms of putting it -- applying it in terms of 13 use. 14 A It's interesting. I would say yes. The volume of 15 information has grown faster than the intellect to analyze 16 it, so there's more information out there than people know 17 what to do with, and maybe that's a good thing. 18 Q This issue of looking at the data and looking at the 19 historic items that you have talked about in predicting 20 future, is that the type of information that producers, 21 whether it's a farmer or a big business or an auto 22 manufacturer or the entertainment industry, is that important 23 information for them to know now to make plans for the 24 future?25 A Oh, absolutely.26 Q Why?27 A General Motors, for example, has applied models that 28 I've developed. It's got a fancy name. They're called

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1 nested logit models. 2 Q Tara appreciates that. 3 A They've purchased the software and applied these 4 techniques that I've published in the academic literature to 5 help predict who is going to buy cars, and they sort out, for 6 instance, using observed purchases of cars by consumers. 7 They have sorted out how people think about the car 8 choice. Am I going to buy an SUV versus a four-door car. Am 9 I going to buy a two-door car. Am I going to buy Ford versus 10 General Motors. How do I make that decision and what things 11 come first and what things come second? 12 Q Now, you mentioned your teaching background. When did 13 you start at Cal Tech as a professor?14 A I graduated at MIT with my PhD in 1982, and I went 15 straight off to Cal Tech 1982. 16 Q How old are you doctor?17 A Forty-six.18 Q So you started Cal Tech in '83 teaching?19 A I was pretty young at Cal Tech. I was 24 when I became 20 a professor.21 Q And the next step for you at Cal Tech was what?22 A A lot of hard work doing research, writing papers, 23 teaching courses. I teach four courses a year, two to 24 undergraduates and two courses typically to graduate students 25 who are also learning to become specialists in economics.26 Q In terms of Cal Tech stature in the academic community, 27 where does it stand?28 A Cal Tech is one of the best schools in the country.

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1 It's not necessarily the most well-known by everybody. 2 People sometimes get it confused with Cal Poly, Pamona or 3 something, but Cal Tech is a very famous school. It was 4 ranked number one by U.S. News and World Report just a couple 5 years ago as the top undergraduate school in the country. 6 Unfortunately for everybody else, only 800 kids get to 7 go there. They have the highest SAT scores of kids that 8 apply to colleges all over. Better SAT scores than my child 9 for instance. They have phenomenal scores. They've ranked 10 very well. In this last year, they were ranked in the top 11 four schools just behind Harvard and Stanford, I think it 12 was.13 Q Now, you're still a -- you are a tenured professor 14 there now?15 A Yes.16 Q And in terms of your course work over the last five, 17 ten years, what kind of courses are you teaching that apply 18 to your job assignment relative to this case?19 A Well, I've taught there 21 years, but over the last 20 five to ten, I've taught courses in statistics certainly, and 21 econometerics, so I teach students -- new PhD students how to 22 think about modeling, how to apply the techniques 23 that -- and the theory of those techniques, and I teach a 24 variety of very applied -- what I called applied or empirical 25 courses. 26 One is called contemporary issues in economics where I 27 go through projects that I've worked on that I have 28 summarized in one or two of my books, and I work through with

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1 the students sort of chapter by chapter what the problem was 2 almost like a case study, what the problem was, how I applied 3 econometric methods, and I'm teaching them about consumer 4 demand. I'm teaching them about applications of statistics. 5 I am getting them to use the computer so that they can mimic 6 these techniques themselves. 7 Q Now, in terms of being a professor at Cal Tech and also 8 being -- we're going to talk about your consulting business 9 in a little bit. Is it important for Dr. Dubin to be up to 10 speed on what's happening in your field in terms of the 11 literature?12 A I should think, yes.13 Q Why is that important for you to be monitoring or 14 reading that stuff about this field?15 A Well, let me contrast it with a medical doctor for a 16 minute or a lawyer, Mr. Dreyer. Doctors and lawyers have to 17 take continuing education which is probably a good thing to 18 keep everybody sharp. I know when I see my doctor I want to 19 make sure he knows the latest stuff, you know, but actually, 20 professors are immersed in their field, and they're on the 21 leading edge of the field. 22 The only way you stay on that edge is to read the 23 published literature and to understand what other people are 24 writing about so that you can understand how the ball has 25 moved, what's now new intellectually.26 Q And are there things in terms of your field and in 27 medicine and other disciplines, other professions, is there 28 something called a Peer Review Journal?

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1 A Yes. 2 Q What's a Peer Review Journal? 3 A Well, academics or professors will typically publish 4 articles in journals. A journal is like a magazine but no 5 one reads it. It's just like a magazine -- it's like Life 6 Magazine, but no one takes it. Only the professors know, so 7 they have weird names like Econometrica or the American 8 Economic Review, and you won't find them at Safeway. 9 Q Okay.10 A But before you get an article published in such a 11 journal, other professors are reading your work, and they're 12 checking your work, and they're writing comments like, this 13 makes sense to me or it doesn't make sense. Clarify this, 14 clarify that. And before you can get an article published, 15 it's gone through a process whereby others have reviewed it.16 Q Now, you are published, are you not?17 A Oh, yes.18 Q You have published both in these type of Peer Review 19 Articles -- journals as well as published in textbooks that 20 are utilized by the next generation of economists?21 A Yes.22 Q All right. You're an author in the book called 23 Empirical Studies And Applied Economics?24 A I am the authority of that book, yes.25 Q You're the authority of the book Studies Of Consumer 26 Demand, Econometric Methods Applied To Market Data?27 A Yes. I'm sorry about the title. That's probably why 28 they're not best sellers, but yeah, that's the book.

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1 Q And the topic of that book is what? 2 A Well, it's -- it's a variety of topics, but the 3 unifying theme are my applications of economics to problems 4 of consumer demand in a variety of different settings. 5 Q You are the authority of the book Consumer Durable 6 Choice and The Demand For Electricity? 7 A Yes. 8 Q Now, one aspect of you, Dr. Dubin, is you have spent a 9 substantial amount of your time and professional career 10 dealing with demand patterns as it relates to power, 11 electricity, true?12 A In my earlier career I was doing more of electricity, 13 and of course, some of that research has resurfaced now with 14 the energy debacle in California.15 Q Were you consulted after this debacle of the energy 16 crisis started in California to evaluate the circumstance and 17 to get a better understanding for the people who are in 18 charge?19 A Yes. I was contacted by a group in Sacramento 20 called -- I think it's the California State Audit Bureau and 21 their mandate is to audit events in the State and write 22 reports, and I was a consultant to that process collecting 23 data, having access to the power companies' information and 24 information by the independent system operators, the people 25 that actually move the electricity around to sort of figure 26 out what went wrong, what happened.27 Q Now, in terms of your professional career, let's talk 28 about some of the things you have done. You've worked in the

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1 private industry; have you not? 2 A Yes. 3 Q You worked for Arthur Andersen economic division, 4 what's it called the -- as an economic consultant? 5 A I guess just a little bit -- yes, I mean, a little bit 6 of background. 7 Q Sure? 8 A I guess it was in the late 80s I started to do more and 9 more of this kind of consulting work having projects where 10 people were calling me, and it's natural, very common for 11 academics like myself to kind of hook up with a firm that can 12 provide support, people that can actually do the hard labor 13 of typing in the numbers and work under your direction. 14 And I worked first at a company as an advisor called 15 Putnam, Hayes and Bartlett, and then I went to work as part 16 of a group called Arthur Andersen Economic Consulting. It 17 was a economics group within Arthur Andersen.18 Q And how long did you do that work?19 A I don't really remember. I think I was a senior 20 advisor to that group which meant that I was an independent 21 person for maybe a period of four years without looking at my 22 CV, and then I became Director of Statistics and Econometric 23 Analysis or something like that for an additional couple of 24 years.25 Q What were you doing?26 A I was doing the same thing that I always do as a 27 practitioner of economics. I was responding to the needs of28 clients that had questions working on projects that needed

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1 answers where someone would call up and say help us 2 understand something, or if it was a courtroom kind of 3 setting, I might get involved in something like if it was 4 patent infringement where one company has infringed on the 5 patent of another. I might be involved in the damage 6 calculation there. 7 Q And we'll get to that work. 8 In terms of publishing, you've been published in excess 9 of a couple dozen times in these different peer review 10 articles, journals, true?11 A Thirty plus, probably.12 Q Have you also been published with professor McFadden?13 A Yes. I wrote a paper when I was a graduate student at 14 MIT that later we published together in the 15 Journal Econometrica.16 Q And this is it one of the leading journals in your 17 field?18 A I would say it is the leading journal in the field, 19 yes.20 Q What was the topic of that article?21 A It was about econometeric methods applied to questions 22 of energy demand and consumer choice of heating systems, sort 23 of like how consumers would pick the kind of fuel that would 24 heat their homes, for example, in the northeast.25 Q Now, along with publishing books and articles, you've 26 also been asked to review and make comments on other works 27 that have been done?28 A Well, sure. I mean, I'm part -- I don't get people to

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1 peer review you unless you peer review back, so that's part 2 of my professional obligation. 3 Q And that's another way of staying on the leading edge 4 of your field? 5 A Absolutely. When you're reading a new paper by 6 someone, usually they blank out who wrote it, but you get to 7 read some pretty neat stuff, and it actually generates some 8 ideas. 9 Q You've also been awarded grants where private companies 10 or public entities have retained you to do work for them in 11 different fields that you specialize in?12 A Yes.13 Q Okay. Can you give us an idea of some of the grants 14 that you've been awarded over time?15 A Sure. I don't know if I can remember all of them. 16 Just a couple of examples. I received a grant to study 17 racial profiling in Southern California. I received a grant 18 to study the separation of the San Fernando Valley from the 19 rest of Los Angeles. They want to become their own city.20 Q How would you study that from a microeconomics 21 standpoint?22 A Well, it was a question of -- one aspect of it was some 23 of the costs that were involved, how the City structure was 24 developed, how police services, for example, were allocated 25 between the San Fernando Valley and Los Angeles.26 Q Ever been awarded a grant by the IRS? 27 A Yes. I have worked for the IRS. I've written a lot 28 about the IRS actually.

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1 Q Okay. In what context? 2 A A lot of research I did in the early 90s was about the 3 effect of audits on tax compliance, and a lot of what I had 4 to say was pretty noteworthy. Made it to the TV and 5 newspapers. I studied how the IRS's behaviors in terms of 6 auditing individuals affects their behavior about cheating on 7 their taxes or not, and I publish several articles about 8 that. I later went to work for the Franchise Tax Board when 9 they learned about it. That's the California Franchise Tax 10 Board up here. Worked for them on a project related to that 11 work. 12 And more recently, the IRS criminal investigations 13 division has selected me with a grant to figure out how their 14 criminal enforcement activities affect taxpayer compliance. 15 That's the piece of the IRS that's the group that rounded up 16 Al Capone. They're the ones that the breakdown your door and 17 can do whatever they want to you.18 Q Hopefully not our doors, but that's the criminal 19 enforcement aspect of the IRS. 20 A Yeah. Working for the IRS and the Franchise Tax Board 21 were always scary for me, because I was always worried they 22 would look at me.23 Q In terms of your work for them, how does it fold into 24 what you do professionally? What about what you do is 25 something that they were going to rely upon and make 26 decisions basically?27 A Well, this work for the IRS right now is the grant for 28 actually several hundred thousand dollars to go out and

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1 collect historical information, work with them to develop 2 data about how their criminal enforcement activities in the 3 past have affected people's individual behavior in terms of 4 cheating or noncomplying on their taxes, and I 5 will -- although that research is just beginning, I've 6 written a proposal and told them how I'm going to do it. 7 Other people wrote proposals -- other professors wrote 8 proposals. They selected me and that research is just 9 beginning.10 Q The grant process is all selective, isn't it? It's a 11 competition for grants?12 A Always. The grant money out there is limited, and it's 13 sort of more and more limited all the time, so to get a grant 14 is usually a big deal.15 Q Dr. Dubin, in terms of gathering data as you describe 16 for these functions, how does someone like yourself -- if you 17 get a project, how do you go about the task of obtaining the 18 information you need to apply your expert knowledge and form 19 you're opinions?20 A You know, it varies from project to project, and I 21 think you should understand that every project is a little 22 unique. So if I'm studying the demand for addressed ad mail 23 or direct mail catalogs up in Canada, or if I'm studying the 24 provision of police services in Alaska, each project has it's 25 unique aspects. 26 So what I do first is I think about the problem. I 27 read the economics literature or other literatures that have 28 been published around that topic area. I talk to the people

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1 involved about what data is available and try to figure out 2 what we got. Do you have some records somewhere? Do you 3 have computer files? What can you give me? 4 And usually that ends up being a -- kind of an 5 innerative process where they're giving lots of stuff, and 6 I'm asking for more stuff, and then we assemble that 7 information to computer data bases, and then I perform my 8 econometric methods to it. 9 Q So the sources of information would be from the client 10 who has hired you, whether it's a business or a state or the 11 IRS or something like that, correct?12 A That's right.13 Q Independent research where you go out and find data 14 that's not provided by the client, if you can?15 A Yes.16 Q Check and see what else has been done in the scholarly 17 work on the topic that you're being asked to do?18 A Yes.19 Q So you can build off of it?20 A Well, I want to know what other people have done and 21 what their findings have been, and get some ideas, yes. You 22 never want to start off from scratch.23 Q Do you check their work? I mean, if something is 24 published, do you just assume that it's true or do you 25 challenge it or try to find out the basis? How do you assess 26 this work that has already been done before you?27 A That's a good question. The peer review process is 28 supposed to serve the function of checking the work. In some

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1 disciplines including economics it's also common for applied 2 work for an author of a paper to actually put their data in a 3 publicly available place so that other scientists can come in 4 and then reproduce the work, and that's some of the ways you 5 would assess whether the methods are correct. 6 Q And also as an economist over the last 15 years, 20 7 years with the development of computer technology and 8 gathering of information and just general ability to do more 9 with what we've got, when you look at an article that was 10 done let's say in the mid 80s, which is really not that long 11 ago, can things have changed such that the opinions that have 12 been reached at a different time are now no longer valid?13 A I think that's fair. Sure. I mean, the circumstances 14 could change. I can think of some examples of that, but 15 yeah, that certainly has happened. Sometimes articles are 16 more theoretical in nature which means that -- remember I 17 talked about microeconomics and macroeconomics, and I talked 18 about what I do which is very applied and empirical where I'm 19 looking at data and crunching numbers and trying to develop 20 relationships, but there are other economists that do it the 21 way I started my career which is much more mathematically. 22 They are making assumptions. They are hypothesizing, and 23 they're saying let's suppose consumers do this, they do 24 that. Those things are harder to challenge because there is 25 no data there. They either make sense or they don't.26 Q Have you received any awards in your field for your 27 published work?28 A Yes, I have.

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1 Q What? 2 A Well, the paper I wrote with Professor McFadden which 3 was published in the mid 1980s received something like the 4 Frisch Medal of the Econometric Society. 5 Q What's that? 6 A It's a hunk of metal that's extremely prestigious. 7 It's given out to the best paper, the best piece of work that 8 was done in the area of econometerics every two years across 9 the country or world.10 Q All right. Now, in terms of projects that you've done, 11 clearly the Raiders contacted you through counsel and 12 retained you to do a project relative to this case, fair?13 A Sure.14 Q And can you tell the jury what -- in a general sense, 15 what you understood your assignment was when you were 16 retained?17 A Yes. I was asked to consider the demand for NFL 18 football products.19 Q Now, in terms of what you did, is that precisely the 20 kind of project -- type of project you get in your 21 background?22 A All the time. I mean, right in there.23 Q Before we get into the specifics of the Raider project, 24 I want to give you -- I want to talk a little bit with you 25 for the jury to understand in a practical world some of the 26 projects that you've been retained on. 27 A Okay.28 Q In terms of government, states, Federal, whatever,

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1 you've told us the IRS has contacted you on projects and 2 grants, fair? 3 A Yes. 4 Q Can you give us an idea of some of the other projects 5 that you've been retained on where were it a state agency or 6 some public entity has asked you, based on who you are, to do 7 this kind of analysis project to gather data, do research on 8 the topic, ask your -- your basically asking questions like 9 what is the demand for NFL Football, right?10 A Right.11 Q And then you reach your expert conclusions as a result 12 of your research, true?13 A Sure. There is pages and pages of examples, but in 14 terms of government entities, one that comes to mind was a 15 project I did a couple years ago up in Canada for the Canada 16 Post. They were a -- they are the U.S. Post Office for 17 Canadians, so I did a project for Canada Post or actually for 18 Canada Post and the Canadian Direct Marketing Association 19 jointly.20 Q Did you work for the State of Alaska?21 A Yes. I was contacted on a project for the State of 22 Alaska that lead to some testimony where there was an 23 allegation of racial discrimination up in the State of 24 Alaska. The issue was whether or not Alaskan State Troopers 25 which are the -- kind of the police up there, whether they 26 don't provide the same level of services to rural Alaskan 27 Bush villages that they do to Alaskans in the big city.28 Q And again -- you do the research, you get the

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1 information, and then you reach conclusions that you give to 2 your client which they rely upon? 3 A That's exactly the process, yes. I work on a project 4 like that by, again, studying the literature, collecting 5 information about the Troopers' activities up in the State of 6 Alaska, and then I began to collect from the literature, form 7 ideas and collect a lot of information that I thought would 8 be relevant. 9 For example, I'm not sure if I am making it completely 10 clear, but you know Alaska is this huge place, and people 11 live -- some people live on kind of a subsistence level where 12 they're living in remote villages. 13 The only way you can get there is by airplane or dog 14 sled and that sort of thing, and the question was because 15 they were native -- Alaskan natives that they don't get the 16 same level of police services, or was it due to other factors 17 like they lived far away from the big cities, for instance, 18 that the crime levels in those places were different or of a 19 different kind or whether or not the community had it's own 20 form of police protection. 21 Another factor was whether or not the community had 22 chosen to ban alcohol, and a community, for example, that 23 chooses to ban alcohol is much less likely to have crime 24 accorded to my empirical analysis, and therefore, their 25 necessity to receive or demand services from the police is 26 lower.27 Q What about the Los Angeles Police Department in a 28 similar kind of a concept of dealing with racial issues, has

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1 that entity retained you to evaluate their information and 2 make recommendations for them to follow? 3 A Yes. The Los Angeles Police Department you know has 4 had some notoriety of late, Rodney King and all of that sort 5 of stuff, and they were under an order by the Federal court 6 to sort of audit their activities and figure out are they 7 doing everything by the letter of the law? Are they filing 8 the right reports when they need to be filed? Are they 9 paying attention to the rules and regulations? 10 And there's too much data there like in many situations 11 for them to do an exact audit of every single instance, every 12 police report, every card that's filled out, all of that sort 13 of stuff, so I'm helping them by doing some statistical 14 sampling to look at in a valid scientific way a smaller part 15 of the records, but then to be able to render an opinion for 16 them about the -- about parts of the LAPD, whether they're in 17 compliance or not.18 Q And they're relying on your opinion?19 A Yes, and so is the court.20 Q Now, in terms of this analysis, I mean, you're a nonlaw 21 enforcement -- have you ever worked in law enforcement 22 before.23 A I don't think so.24 Q They're relying on someone, a Professor of Economics, 25 to come into the LA Police Department and assess data and 26 make recommendations and opinions?27 A That's correct.28 Q All right. And that again, also, that kind of project

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1 translates to the types of things you've done for major 2 corporations in the country, true? 3 A Yes. Same kind of thing. I mean, I remember a case I 4 did that consumed several years of my time where Eastman 5 Kodak, the makers of the cameras, were sued by the Polaroid 6 Corporation, and the lawsuit was a big number where they were 7 being sued for 12 billion dollars because Polaroid had the 8 patents on instant photography, and Kodak was found 9 ultimately to have made their own version of an instant 10 camera, but they stoled or copied some important ingredients, 11 and I built econometric models for Kodak of the demand for 12 instant cameras and for other cameras that were used in the 13 court.14 Q And that was to assist in figuring out what really were 15 the damages involved?16 A That's correct. To find out what products substitute 17 for what products in the eyes of the consumer. To ask the 18 what if question. If Kodak had never decided to build their 19 own camera, how would the world look in that circumstance?20 What if Kodak had not infringed the patent? 21 Q Now, Dr. Dubin, this work that you do, you use the word 22 model, you create a model. Closest I've come is an airplane. 23 Can you tell us what you mean -- in your vernacular, what you 24 mean by creating a model?25 A Well, an airplane model or car model is not a bad 26 analogy. A model is an abstraction of reality. It's a 27 simplification. I don't know if I -- I really wish I had the 28 dictionary right now. It's a way of simplifying something

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1 very complicated that's happening in the world by putting in 2 a smaller number of factors but understanding how they relate 3 to each other. 4 Q All right. And as an economist, how do you do that? I 5 mean, for example, you're talking about Kodak and you're 6 one -- one of the questions you ask yourself is how the world 7 would be if Kodak didn't create this camera? 8 A That's right. 9 Q How do you do that? How do you create a model on that 10 basis?11 A Well, you start by understanding how the world was when 12 consumers were making choices between Kodak and Polaroid and 13 looking at what other opportunities they had, and you collect 14 a variety of information, consumer information about how they 15 made their decisions, the National Family Opinion. 16 They just sent me a survey the other day with $5, and I 17 pocketed the $5, and I'm still thinking about whether I'm 18 going to fill out the survey, but they collect very detailed 19 information about what cameras people had bought. They would 20 ask people to record did you buy this camera, and did you buy 21 this film, and at what price and where did you buy it? And 22 then I would take that kind of information, put it through 23 the computer and build statistical models to figure out how 24 people were making decisions.25 Q All right. Based upon the hard data and then seeing 26 the trends and what plays out. 27 A That's right. And then asking of the model, once I 28 understood how it actually happened, then I would go back and

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1 ask of the model well, suppose the world had been different, 2 suppose that there was no Kodak. Let's suppose that a 3 consumer out there had bought the Kodak camera and Kodak had 4 not been there. 5 It's a pretty different world, but the idea is then to 6 say well, that consumer either would have bought a Polaroid 7 instant camera because they really wanted an instant camera, 8 that's the most important thing for them, or they would have 9 bought perhaps some other Kodak camera, a regular old brownie 10 or whatever they were called, because they liked Kodak, and 11 they thought Kodak was such a great brand name that they 12 liked the Kodak format just as well.13 Q Will you look at concepts of brand when you make your 14 assessment analysis? 15 A Sure. I've written -- published in the marketing 16 literature. I have written book chapters about valuation of 17 brands. I've done demand analysis of kind of funny products 18 like Fancy Feast cat food and Mighty Dog dog food, Carnation 19 Instant Creamer all to figure out what the value of the brand 20 is. We all know when we go to the supermarket, brand 21 products sell more than the private label or the Safeway 22 brands and that sort of thing, and there's information 23 there. 24 Why is it that consumers, when faced with two versions 25 of let's say Nyquil, one made by Vics in a triangular bottle 26 with green liquid, why don't they save sometimes themselves 27 the two dollars even to buy the cheaper version that's also 28 in a triangular bottle, but it's manufactured with Safeways

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1 name only it? Looking at that kind of information allowed me 2 to develop techniques to figure out what the brand was worth. 3 Q Now, this concept of predicting out into the future, is 4 it important for you not only intellectually but for 5 reliability that these predictions are reliable in terms of 6 what recommendations you're making? 7 A Well, sure. I mean, you want the predictions to be as 8 reliable as possible. 9 Q How do you do that?10 A Well, the part of the statistical analysis that you do 11 leads to a level of precision, and the more information you 12 collect, sometimes the more that extra information makes your 13 models more precise, and therefore, you can make a better 14 prediction about the future. Although, I have to say, you 15 know as good as it is, even the weather man gets it wrong. 16 They say it's going to rain tomorrow and it doesn't, and they 17 say it's going to be sunny and it rains, so sometimes the 18 predictions have variance to them, but we do the best we can.19 Q Is that something you factor in when you make your 20 opinions, conclusions, you want to let them know hey, there 21 is some wiggle or some variance that you need to be aware of?22 A I absolutely emphasize the variability, yes, because I 23 don't regard the future as a certainty. I don't know who 24 could exactly, but from my vantage in my field I deal with 25 probabilities, and that's where I get my comfort. I say 26 well, it's likely to happen. It's probable that it's going 27 to happen. I can even give you a number, but I can't tell 28 you for sure.

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1 Q Well, now, Dr. Dubin, in terms of dealing with demand, 2 have you also had projects where large corporations retained 3 you to evaluate how something that's happened has impacted 4 the demand on the product, for example, I'm thinking of Jack 5 In The Box with E-coli? 6 A Oh, yeah. I worked for -- I can't remember the parent 7 company, Foodsaver. Whoever owned Jack In The Box, a few 8 years ago. I don't know how long ago, maybe 8, 10 or 9 something. There was a E-coli outbreak in the meat that was 10 used by Jack In The Box, and I was asked by Jack In The Box 11 or their parent company to study the demand for hamburgers to 12 figure out where their customers were going. 13 Were people who stopped eating at Jack In The Box, were 14 they going to go eat at McDonalds, go eat at Pizza Hut, so I 15 did the project the same way. I collected the data, figured 16 out where the data sources were, amassed the data and built 17 nine models which they then relied on to understand how their 18 market developed or how it was going to develop.19 Q And how to get it back?20 A And how to get it back.21 Q And this, again, is the type of thing that you do 22 professionally in your consulting business to assist 23 corporations or businesses or government agencies relative to 24 assessing a situation regarding demand and determining what 25 to do with them?26 A Yes. I venture into nondemand areas frequently, too, 27 but a lot of what I do involves studies of demand. That's 28 where I've published the most.

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1 Q Okay. Now, let's talk about one last concept before we 2 get to the Raiders and you project. The term "regression 3 model." Are you familiar with the term? 4 A I've heard it, yes. 5 Q Okay. More than just a passing familiarity? 6 A Yeah, it's kind of branded in my sole. 7 Q Can you explain to the jury what a regression model 8 means as it relates to your field? 9 A Sure. Regression models are a fancy way of taking 10 averages when there's lots of things to considerate at one 11 time. It's a statistical technique that allows you to find a 12 set of factors and show how those factors collectively and 13 separately influence the thing you want to study.14 Q Okay. And I'm going to tell you that at any point in 15 time, and I'm not suggesting you need to do this right now. 16 At any point in time you want go to the board and be a 17 professors and illustrate something for us, that would be 18 fine. 19 A I haven't been tempted yet.20 Q In terms of the process, have you ever done this 21 before, where you have come in and testified in front of a 22 jury before?23 A I have testified in court several times but you're my 24 first jury.25 Q Now, Dr. Dubin, in terms of this concept of the 26 regression model, can you give us like a -- an example so we 27 can maybe mentally visualize a regress model system?28 A I think I can try. One example -- let's see. One

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1 example that I sometimes give is if you have children, you go 2 to the pediatrician when they're young and they weigh them, 3 and then they figure out how tall they are, and then the 4 doctor will come back and say, you know, your kid is going to 5 grow to be this tall or they might say, you know, your child 6 is a little overweight for his height or something like that, 7 and those kind of statements come from the doctor's charts 8 which is actually a model, and it's a model built off of a 9 regression of some data, and the data that they -- the 10 scientists, the doctors looked at where they would get lots 11 and lots of children, many many children, and then they would 12 start to plot points on a graph, and they would look at, for 13 example, how much a particular child weighed and how tall 14 they were, so if you imagine everybody in this room even you 15 could plot how much we weigh and how tall we are. 16 Those represent little points on a graph. If you 17 thought about a graph, you could think about different let's 18 say heights of the children, and then in the other direction, 19 you could think about how much those children weigh. A 20 regress model is an attempt to put a curve through that data 21 that best summarizes it.22 Q To determine like a percentile or where they fall?23 A Yeah. It gives you back the relationship between the 24 height of the child and what on average you should expect to 25 be their weight.26 Q So based upon existing data that's there -- 27 A Uh-huh.28 Q -- based upon statistical trends predict the future?

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1 A Well, if you brought in, you know, when you bring in 2 your own kid, they're making a prediction about the future. 3 They're saying, you know, your kid is a little overweight 4 here or your kid is going to grow to be this tall. 5 Now, the way it gets to be a little more complicated is 6 that boys are different than girls. We know that. I hope we 7 know that, and boys are in a different growth curve than 8 girls are, so in a sense, the doctor needs two charts. And 9 then you think about well, where we are in the stage of our 10 development as children matters too. Like babies grow at a 11 different rate than kids between being babies and teenagers, 12 and teenagers we know grow really fast, so that's another 13 factor. 14 And what a regression analysis would be do, is it would 15 look at the same thing, the weight that we would expect, but 16 it would relate it to the factors, the weight, the sex, the 17 age of the child, and that would all get summarized in a 18 chart for a doctor. The doctor when asked the question, "How 19 tall is my kid going to be," doesn't run off and do a new 20 experiment, they've got a, and that chart was built from data 21 and that was the model.22 Q Regression models, is that something you do every day 23 in your work?24 A My statistical package, yes. My statistical package, 25 part of what it did is allowed other people to build 26 regression models. I do them with my students. I use them 27 to fit demand studies. I use them all the time.28 Q So the regression models, is that something as a

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1 professor you teach others how to use -- how to create and 2 how to use? 3 A Yes, I do. 4 Q All right. And have you published with regress models 5 that you've developed and projects and topics that you've 6 done? 7 A Frequently. Many of the papers are built around 8 regression models. 9 Q Now, regression model. Where does the name regression 10 come from as it applies to this thought process.11 A I was afraid you were going to ask that. Best I can 12 remember and I'm going to go home and check on this, but I 13 think it's due to a professor in the 1700s names Galton. 14 He was studying populations, and what he noticed is that when 15 you've got two tall parents and they have a child, the child 16 tends to be tall, too, and if you have two short parents, as 17 I remember, the kid tends to be short, too. Okay. 18 But when you've got two tall parents, the child doesn't 19 get to be as tall as the parents. He's actually a tiny bit 20 shorter than the parents. He's taller, but he's still 21 shorter than the parents are, and similarly, when you have 22 two short parents, the kid is not as short as the parents, he 23 is actually more toward the average, so everything gets 24 squeezed towards the average, and I think it was Galton, this 25 professor, said that's a regression toward the mean, and 26 that's where the name came from. If he had picked, you know, 27 contraction towards the mean or some other word, we would 28 probably be calling them contraction models today.

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1 Q Now, in this case, we're going to get to your specific 2 work. I've also provided to you and asked you to review the 3 depositions that were taken after yours of a couple of 4 experts whom the defendants have hired relative to this case, 5 correct? 6 A Yes. 7 Q And I gave you the deposition and work up of Blaine 8 Nye? 9 A Yes.10 Q As well as a Roger Grabowski?11 A Yes.12 Q And both of these gentlemen in their work performed 13 what they called regression models, right?14 A Yes.15 Q And I've asked you and you have, in fact, looked at 16 their regression models, true?17 A Yes.18 Q Tested them?19 A Yes.20 Q And have some opinions relative to their reliability?21 A Yes.22 Q All right. We'll talk about that. Let's talk about 23 the Raider project. When were you first retained?24 A I think it was late January of -- of the year 2000, 25 threeish years ago.26 Q And Mr. Hughes contact you?27 A No, it was Mr. Eichhorst.28 Q Mr. Eichhorst. And when you were contacted by

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1 Mr. Eichhorst, the project was to do what? 2 A Well, as I mentioned before, it was to study the demand 3 for NFL products, think about PSLs, think about how different 4 factors affected NFL ticket demand, and then -- and 5 specifically to think about how such models apply to the 6 Raiders. 7 Q All right. So the task would require basically going 8 out and looking at the universe of information relative to 9 the NFL and this kind of demand issue?10 A I don't know if I would say it was the universe. I 11 mean, I would like as much information as I possibly could 12 about the NFL, and I would be looking specifically for hard 13 numbers and facts about the demand -- about the number of 14 tickets that were sold and other factors, yes.15 Q Now, this information, determining and evaluating 16 demand as it relates to this industry, the NFL, is that the 17 type of thing that you have done your entire professional 18 life?19 A Yes.20 Q Now, tell us how you started this assignment, what did 21 you do?22 A Well, I think I met with the lawyers from Howard Rice 23 and had a conversation about the -- what I do, sort of like 24 the conversation we just had. Told them about my demand 25 modeling, and then they said basically told me to go away and 26 think about demand models. I did. I started collecting 27 information from the published literature about what other 28 economists have said about football. And it's sort of

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1 striking, but economist have actually written quite a bit 2 about football, I guess because of it's popularity and there 3 is some interesting economic issues. 4 Q I think I speak for everybody, but an economist is 5 viewed in a variety of different ways maybe, but is it in 6 fact what economists do in your field to look at things that 7 are practical that we deal with every day from football and 8 entertainment to going to movies, to restaurants, to, you 9 know, what kind of bread we are going to buy, things of that 10 nature?11 A Some economists do for sure, and I'm sort of well into 12 that league of practitioner, yeah.13 Q All right. Now, when you go out and look in terms of 14 information, why would you want to go see what others have 15 written on the topic of demand as it relates to the NFL?16 A Well, there's a couple reasons. I mentioned before you 17 don't really need to start from scratch. Other smart people 18 have thought about the problem before. Also, there may be 19 some new ideas in the literature, and you might get some new 20 ideas that could -- I might get some new ideas that might 21 help me to form my opinions about how to approach the 22 problem.23 Q So you did that kind of review of literature?24 A You know, I did that. I also talked to some people 25 that worked for me who pay more attention to football on a 26 daily basis than I do. You know, hey, what do you think 27 matters when you think about going to a football game? What 28 factors are important? And so between my own thinking about

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1 it, talking to others, reading the literature, I formed some 2 ideas with some factors that would affect the demand for NFL 3 tickets. 4 Q Is that your normal practice, Dr. Dubin, about how you 5 set about the task to get the project started? 6 A Yes. 7 Q And in terms of asking yourself these questions and 8 determining what you want to look at, do you then start the 9 process of gathering information?10 A Yes. I mentioned before that my particular technique 11 is to get, you know, as many hard facts as possible and then 12 build them into a model so that I can understand how the 13 relationships are working, and so my next task was to go find 14 the data for the NFL.15 Q All right. And what resources would you go to to find 16 this data?17 A Well, there are official statistics which are published 18 about the NFL Record and Fact Book, The Summary of Attendance 19 Statistics of The NFL, I think it's called.20 Q Why would you go to those sources of information?21 A Because they are official statements about the facts, 22 the teams themselves file box office statements to the NFL, 23 because there's all that revenue sharing going around between 24 the teams, and so it's an accounting process to have that 25 data be accurate. They're the offical statement of the data.26 Q Ultimately you're going to develop some regression 27 models to assist you in formulating your opinions in this 28 project, true?

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1 A Yes. 2 Q So when you go out and start getting this data, do you 3 want to make sure it's from reliable sources? 4 A Yes, I would like the data to be perfectly reliable. 5 Q Do you cross check it or do you just assume it's 6 accurate? 7 A I try to cross check my work. In a project like this, 8 for instance, or almost all of the others, you know, the way 9 you would like it, you would like to be able to kind of go to 10 the library and check out the data you need, book or 11 something, but it doesn't work that way. You've got to pull 12 all of the sources together yourself and then type the 13 numbers into the computer. 14 I mean, I'm not literally the one doing all of the 15 typing, but once that's typed in, then it's subject it check, 16 people want to verify, and then sources are compared, so for 17 instance, if I have a way of checking two different sources 18 like the Raiders box office statements against what the NFL 19 says the Raiders said, I will compare those two numbers or 20 you'll have somebody do it so I can be sure I'll be as 21 accurate as possible.22 Q Okay. And we want to be as accurate as possible for 23 the reliability of the information in your conclusions?24 A Yes. It's that old thing garage in, garage out. You 25 want to make sure what goes in is good stuff.26 Q Not garage?27 A No, sir.28 Q I'm going to show you a document, Exhibit 424. It's

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1 about 15 pages. I would like you to take a minute and look 2 at it and tell us what it represents, please. 3 A This is a bibliography that I assembled prior to my 4 deposition in this case of all of the -- all of the 5 information that I collected, the box office statements, the 6 summary of attendance statistics for all of the different 7 years that I was looking at, records about performance of the 8 teams, that sort of thing, but also this will mention the 9 academic literature that I collected and reviewed, papers 10 that I read, also newspaper articles, articles written about 11 football, things that the lawyers sent me, those depositions 12 and other things like that, but it's a complete listing of 13 what I had at the time of my deposition.14 Q We brought these three boxes behind you. Is that some 15 of the material that you -- that is contained and identified 16 on Exhibit 424?17 A Yes, it's -- it is some of it. Some of the data sets 18 themselves that are actually in the computer are really -- 19 get to be so voluminous that if you were to put them on 20 paper, we would needlessly be killing trees, but those are 21 certainly I think almost everything that was the raw material 22 that I used to build the data sets.23 Q Okay. The materials that are identified in 424, 24 Dr. Dubin, have you reviewed all of these materials in 25 connection with your assignment in this case?26 A Yes.27 Q Have you relied upon this information and considered it 28 in connection with reaching your ultimate opinions?

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1 A Yes. 2 Q And does it represent the universe so to speak of 3 information that you obtained either that was given to you or 4 you looked to or discovered or researched and developed that 5 forms a basis of your opinions? 6 A Yes. 7 MR. DREYER: I would move 424 in, your Honor. 8 MR. HARRIS: Objection. Hearsay, your Honor. 9 THE COURT: Is 424 simply the bibliography, a listing 10 of the materials?11 MR. DREYER: Yes, sir.12 THE COURT: And the purpose of offering it is simply to 13 have in one place a collection of all of the materials that 14 this witness reviewed and relied upon in terms of formulating 15 an opinion?16 MR. DREYER: Yes, sir.17 THE COURT: It doesn't sound like hearsay. It sounds 18 like you won't need to go through them one by one orally out 19 here in court.20 MR. DREYER: I thought that would be a little more 21 efficient than the way we did it with Mr. Howell.22 THE COURT: I'll allow 424 for that purpose. Admitted.23 (Whereupon Plaintiff's Exhibit 424 was admitted into 24 evidence.)25 Q (By Mr. Dreyer) Let's put up the front page of 424. 26 This is obviously in pretty small print. Let's just pick the 27 top corner just so, Doctor Dubin, can you take us through 28 from an informational standpoint how it works across the

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1 page. The first side is the left-hand column talks about 2 author? 3 A Yes. The author of the document. For example, I'm not 4 sure that the first one -- the 2002 Stadium Fund is a great 5 name of an author, but -- 6 Q It identifies the source? 7 A It does identify the source, and the next thing 8 identifies the title of the document. 9 Q Okay. 10 A Then there's a source there. If it has a -- this was a 11 document, the source of which was something on a website on 12 the computer called the 2002 Stadium Fund, and it also is a 13 document that I had received from counsel because I can see 14 it has a Bate stamp on it for the Raiders' case.15 Q All right. If you keep going across, some of the boxes 16 are filled out, some are not. This identifies what?17 A Well, editor and publisher would be boxes that would be 18 applicable to a journal article or a book. This particular 19 document doesn't have an editor or publisher, so those boxes 20 are empty.21 Q Okay. The date refers to what?22 A The date refers to the date of the document.23 Q Okay. So if it's applicable, that information is in 24 there?25 A Right.26 Q Okay. Let's go back to the far view, and I just took a 27 quick run through there. There's about 15 pages worth of 28 source data in connection to what you've looked at relative

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1 to this project? 2 A Took 15 pages to summarize the data that I looked at, 3 yes. 4 Q Now, in terms of doing your project, you want to have 5 enough information so that your conclusions are based upon a 6 sufficient body of work? 7 A Yes. 8 Q All right. We can take that down. 9 Why?10 A Well, to render an opinion within my expertise, you 11 have to collect information to build the statistical model. 12 If you have too little information, the reliability of that 13 model will be too low. For instance, in that doctor example, 14 if the doctor only had one baby that they had weighed, that 15 wouldn't be a very good model for applying the weight, height 16 relationship to say a teenager that walked in, so you need a 17 lot of data to make that work.18 Q Now, you prepared a report in connection with this 19 case, did you not?20 A I did.21 Q And I don't have it right here. But just the 22 original -- I have a copy of the original. This is marked as 23 Defendant's Exhibit 2125. Is that, in fact, a copy of your 24 report that you authorized in connection with this case? 25 A Yes, it is.26 MR. DREYER: I would move in Defense Exhibit 2125, 27 your Honor. 28 MR. HARRIS: Objection. Hearsay, your Honor. It was

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1 only offered for the truth. 2 THE COURT: It certainly is hearsay. I'll let him put 3 his report in if you'll rest and let him question 4 cross-examine on the basis of the report. 5 MR. DREYER: I'll go through the exam, your Honor. 6 Thanks for the offer. 7 THE COURT: Objection is sustained as to 2125. 8 Q (By Mr. Dreyer) Dr. Dubin, what is 425? 9 A 425 is a table from the report where I listed the 10 specific sources that were used for information to build the 11 regression model of NFL ticket demand and my model of 12 attendance within the NFL.13 Q How does 425 -- 425 is contained within your report 14 itself as a table within the report, correct?15 A Yes.16 Q How does 425 relate to 424?17 A Well, 425 is really a subset in summary form of some of 18 the material in 424.19 Q This data sources -- as you call it, data source of 20 variables, why have you broke this out relative to letting us 21 know what you're looking at as to your regression models?22 A Because I like to be upfront about what I collect and 23 what I have examined, and these were the sources that I used 24 to build the model.25 Q Okay. Now, how many data -- when you look at a regress 26 model, you talk about the number of data sources or factors 27 that you relied upon, data points?28 A There is two concepts. One is the number of

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1 observations, and that's sort of in my example before. How 2 many babies we would be looking at or how many kids we would 3 be looking at, and then the other dimension is how many 4 factors that would -- are being collected to analyze the 5 problem. 6 Q How many factors are you collecting in analyzing -- and 7 answering this question that we asked you in this case? 8 A Well, I probably collected in one form or another -- I 9 don't know 50 factors or something.10 Q Okay.11 A Not all of them are used in every model or every 12 regression. Some are used as inputs to make other things, so 13 not every factor would be considered at the same time, only 14 the important ones.15 Q This would identify -- 425 would identify specifically 16 those factors though that you utilized in running your 17 models?18 A It would identify the source for those factors, yes.19 Q Because within each one there is information?20 A Yeah. For example, the first one, NFL League Summary 21 of Attendance Statistics 1995 through 2001, it says that one 22 of the things that we got from that source was the average 23 ticket price per season by location. I guess that requires a 24 tiny bit of explanation, but that's one of the factors.25 MR. DREYER: Okay. I would move in 425, your Honor. 26 MR. HARRIS: No objection, your Honor.27 THE COURT: 425 is admitted.28 (Whereupon Plaintiff's Exhibit 425 was admitted into

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1 evidence.) 2 MR. DREYER: Let's put 425 up for a minute. 3 Q Now, this gives us -- it's not the complete chart, but 4 with the Roman numerals off to the left identifies -- kind of 5 take us through what this means so the jury understands what 6 you've looked at and relied upon for, you know, creating 7 these models and forming your opinion? 8 A Well, sure. The first one is the National Football 9 League summary of Attendance Statistics from 1995 through 10 2001, and from that source, I collected information on the 11 average ticket price and the average ticket price including 12 seat premiums, if there were any, by season and location and 13 actually by game. My analysis actually focused on a period 14 of I think it's six seasons, seven seasons for all 30 or 31 15 teams playing football for each contest that they played.16 Q Why would you want to know all of that specific 17 information?18 A Because that's where the contests take place. That's 19 where the tickets are being purchased. That's where the 20 information is reported by the NFL and on the box office 21 statements about what the ultimate demand was, how many 22 people were at the stadium, how many people bought tickets 23 for that game.24 Q Is this the type of information that someone like 25 yourself doing this kind of project would need to look at in 26 order to make an accurate prediction in answering the 27 ultimate question about demand?28 A Yes.

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1 Q And this is again the type of thing you do in your 2 practice, your business in terms of a project is getting the 3 source of information, the data that's out there available so 4 you can solve the problem so to speak or answer the question? 5 A Yes. 6 Q Let's go to the next category? 7 A The next category. 8 Q Categories. Let's just do that? 9 A Okay. Would you like me --10 Q Just kind of take us through what it means?11 A Well, there's a section that says, "Official National 12 Football League Record and Fact Book, 1995 through 1998 and 13 2001." That was a source for the attendance per manifest. 14 The manifest is the box office statement basically of what 15 happened on that particular game. So this was a source for 16 attendance. Attendance is a little different than tickets 17 sold, so there is a different source of information.18 Q Let's stop just before we do that. When you say there 19 is a difference between attendance and tickets sold, what 20 does that mean?21 A Well, a person -- happens all the time I think in some 22 cases more than others. But a person can buy a ticket for a 23 game and then not go. So what happens in football, for 24 instance, if you are a season ticket holder, you may have 25 purchased, you know, all of your season tickets for the 26 regular games or maybe even you certainly purchased them for 27 the preseason, too, but then depending on the game and what 28 you're doing that day and whether it's raining or something

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1 like that, you may say, to heck with it, I've got to go to 2 the barbecue instead. This happens. There are people called 3 no shows which don't actually make it to the stadium that day 4 compared to the event that they bought the ticket already. 5 Q So attendance doesn't necessarily equate to the revenue 6 produced by people buying the tickets, ticket sales. 7 MR. HARRIS: Objection. Calls for an opinion. Your 8 Honor, I don't think we have a proper foundation basis asking 9 for that.10 THE COURT: I think it's obvious. It doesn't require 11 any expert opinion. Overruled.12 THE WITNESS: I think it's pretty obvious, too. 13 Attendance -- not everyone will go to a game. There are 14 seats in the stadium which are called giving out -- tickets 15 given out in the form of comps which are free tickets. Each 16 team gets a certain number of comps to give out for friends 17 of the family or whatever. Those are not revenue producing. 18 There is other seats in a stadium which are a subset of 19 something that this business calls deadwood which are seats 20 which are blocked by signs or posts or TV cameras and those 21 tickets are not revenue generating either.22 Q So for your purposes in this case, you want to be able 23 to differentiate between these different categories as you 24 ultimately answer these questions, true?25 A Yes.26 Q Now, the next item was indication of each team -- which 27 team won each contest. What were you looking for there?28 A Well, when I -- I have to tell you the story a little

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1 bit. When I first heard about all of this Raider stuff, I 2 guess my first reaction was well, how did the team perform, 3 because I had the natural thought I would like to know how 4 performance affects demand. 5 Q And that's one of the questions you asked yourself? 6 A It's a question I asked myself, and I was bent on 7 finding an answer to it by collecting the information that 8 would tell me what happens as teams do better to -- what 9 happens to their demand? I mean, the common sense notion is 10 that as performance gets better, people like the product 11 better and they more tickets, and that's actually a phenomena 12 that's been observed in the published literature as well.13 Q Okay. Now, that concept, can you tell us a little bit 14 about that. When you say the published literature, what are 15 you referring to?16 A I mean that other economists I have mentioned before 17 have written papers about football. And there are other 18 published papers, peer reviewed papers that have analyzed 19 data much less complete actually than my data. They might 20 have analyzed a particular year or a couple of years, but 21 they've also reached conclusions about how different factors 22 influence demand in attendance, and they've quantified using 23 regression techniques how important changes in performance 24 are on tickets sold or on the attendance in the stadium.25 Q Or how unimportant it is?26 A That's correct.27 Q Now, in the literature, is there a concept -- it's 28 called the bandwagon concept, the bandwagon theory?

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1 A Yes. 2 Q What is that? 3 A Well, it's a theory in consumer behavior that I think 4 is really fascinating. It says that many things, many 5 products we consume are a little different than other 6 products in the sense that public consumption makes a 7 difference, so I have to give an example to make that work. 8 It's the difference between, for instance, listening to 9 your favorite group on a CD, on your head phones at home and 10 going to see them in concert. There is a different 11 experience in being at a concert with other people at that 12 concert, and economists have studied that social interaction, 13 and it's called the bandwagon effect. 14 It says that when there are lots of people that are 15 interacting together, they make the buzz and the noise of the 16 experience so much better for everybody else that consumers 17 are ultimately willing to value that product more.18 Q So the desire to be with a crowd in certain types of 19 events enhances the experience?20 A Yeah. I can think of -- I can think of counter 21 examples like when I flew on southwest the other day, I have 22 no desire to be in that crowd particularly, but when you -- I 23 can tell you also that when you go to the movies in the 24 evening on a Friday night, and you've got the last two seats 25 and it's a packed house and there's -- it's a comedy and 26 everybody is laughing, you're laughing too, that's a very 27 different experience than if you're in there, it's the 28 afternoon, and you're by yourself or you're at home watching

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1 the same thing on TV, you know, I laugh at Seinfeld by myself 2 at home when I'm watching it sometimes, but I think Laugh 3 Tracks and Full Houses and all of that sort of thing, 4 are -- cause the social interaction that make the consumers 5 value certain grouped consumption or group behaviors, events 6 differently than say events that -- or consumption that takes 7 place while we're by ourselves. 8 Q You say this is in the literature. Who do you 9 attribute this concept, this economic concept to in terms of 10 the publications?11 A Well, there are actually several people. It's a rich 12 literature. People that have written about bandwagon 13 effects, old, old papers from the 18th century talked about 14 bandwagon effects. An economist back then called 15 Leibenstein -- I'll have to spell it later I think. But 16 there are -- but there are also more recent writings in 17 applied to rock concerts, movies, sporting events and 18 football where economists have discussed the importance of 19 bandwagon effects, and one of the key authors there is 20 Professor Gary Becker, a Nobel Prize winner from the 21 University of Chicago.22 Q Dr. Becker would be considered rather a substantial 23 heavyweight in the field of economics?24 A He's like the super microeconomics king of the world, 25 yes.26 MR. DREYER: This might be a good time to take a 27 break.28 THE COURT: Indeed. Let's take 15 minutes. Observe

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1 all of the rules. 2 (Out of the presence of the jury.) 3 THE COURT: Let the record show that the jury has left. 4 Yes, sir. 5 MR. HARRIS: Your Honor, Mr. Dreyer's questions 6 indicate that he intends to elicit testimony from this 7 witness about things that were said in depositions by a 8 couple other witnesses, experts that we identified. I don't 9 think that's proper at this point. 10 We may or may not offer the testimony of those 11 witnesses. We may or may not offer it on those topics or 12 others. I don't think there's any relevance to it at this 13 point. 14 Now, you know, if there's a rebuttal case and there's 15 an issue there and there's something to respond to, you know, 16 then I think the issue would be whether it's proper at that 17 time. But things that are said in a deposition that are not 18 before this jury, not part of the evidence of the case, it 19 may never be part of the evidence in the case, so I don't 20 think that's proper.21 MR. DREYER: Well I would disagree very strongly. I 22 don't know if he wants to say he's not going to call these 23 two witnesses, that's one thing. I certainly don't want to 24 bring the professor back from Cal Tech to do a rebuttal. 25 Both of these gentlemen ran regression models, your Honor, 26 and they're both flawed, and I think I have the absolute 27 right to have him talk about the flaws of the regression 28 models and then they can challenge him on cross-examination.

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1 They have the benefit of dealing with their experts on 2 it. They clearly have their experts. They disclosed them. 3 They testified. They testified after Dr. Dubin. They wanted 4 to take Dr. Dubin first. And I think that's certainly an 5 appropriate thing for me to ask. That's no different than 6 asking a doctor whose read an IMEs deposition about an 7 opinion that an IME has offered in a report. 8 THE COURT: The issue here is sequencing. If you're 9 not going to call these experts, that's one analysis. If you 10 are going to call them, then it would seem that it would be 11 germane to have this witness while he's here express his 12 opinion on the work product of your own experts. 13 MR. HARRIS: Your Honor, that's a decision that we'll 14 make, and after the plaintiff's rest, after we heard this 15 witness's testimony, all of their witness's testimony, and 16 you know, we just can't say that at this point. We may or 17 may not. We may or may not offer them. We may or may not 18 offer them on those points.19 MR. DREYER: Whether they call them or not, I think 20 it's still open game for us if they have an expert who makes 21 this analysis. For example, both on this issue of team 22 performance and how it affects, I mean, that's been a big 23 part of what they have talked about, so it's part of his 24 opinions and his analysis, and I think it's totally part of 25 his job to look at what other people do, how they do it and 26 whether it's reliable.27 THE COURT: If the experts have been ruled out and 28 they're not going to testify, I might be persuaded that it is

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1 irrelevant or a 352 problem to allow criticism of phantom 2 experts the jury will never see. Unfortunately, I'm not 3 given any guidance on whether we're dealing with a real issue 4 or a phantom issue here, and giving the length of this trial, 5 the difficulty of scheduling, witnesses like this, I don't 6 want to be caught in a position where subsequently you decide 7 to call people who could have been -- his work product could 8 have been rebutted while this person is available today, so 9 how would you suggest I handle this issue? 10 MR. HARRIS: Well, your Honor, I mean the witness is in 11 Los Angeles. Southwest he said, an hour away. I mean, I 12 think it's proper as rebuttal if and when we offer that 13 testimony. For us to have to make that decision at this 14 point maybe a month before the plaintiff rests and not 15 knowing what the testimony is going to be, not knowing what 16 the testimony of this witness or others are about it, we may 17 decide they're unnecessary.18 THE COURT: So at the very conclusion of this case, 19 after plaintiff's rested, you've rested, then we're going to 20 have to squeeze in a rebuttal which may involve scheduling a 21 witness at the last minute, flying him up here and who knows 22 what his schedule is going to be like at this unknown point 23 in history. 24 MR. HARRIS: Well, I mean, if Mr. Dreyer is waiving 25 rebuttal, I assume there is going to be a right to rebuttal 26 on this and other points, and that's going to depend on 27 what's actually put on his case, not his suppositions about 28 what's put not in the case or not.

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1 THE COURT: Why don't you give me something to go on 2 here. Do you think it's unlikely you're going to call these 3 experts, 50/50 or probability? 4 MR. HARRIS: I don't think it's unlikely, but I don't 5 think it's necessarily the case. I don't think that, you 6 know, with regard to any defense witnesses. We make that 7 decision, particularly with regard to experts, after we see 8 what's gone on in the plaintiff's case, you know, so I can't 9 really give a probability, but I'm not saying that it's 10 unlikely, no.11 MR. DREYER: Both of these individuals had the 12 opportunity to review Dr. Dubin's deposition, his report, and 13 then rendered their opinions and they deal specifically with 14 this issue of team performance, and they both have testified 15 that team performance is this big factor which is the heart 16 and sole of their case, so I would submit it, Judge.17 THE COURT: I want to take quick at the literature and 18 see if there is any case law that addresses this issue, and I 19 will let you know when I come back. 20 (Recess.)21 ---oOo---22 23 24 25 26 27 28

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Dubin Testimony - AM Part II (pp 5150-5180)page 5150

1 WEDNESDAY, MAY 21, 2003 2 MORNING SESSION 3 ---oOo--- 4 The matter of the OAKLAND RAIDERS, a California Limited 5 Partnership, and A.D. FOOTBALL, INC., a California Corporation 6 versus OAKLAND-ALAMEDA COUNTY COLISEUM, INC.; EDWIN O. DESILVA; 7 and ARTHUR ANDERSEN LLP, Defendants, Case No. 97AS06708, came on 8 regularly this day before HON. RICHARD K. PARK, Judge of the 9 Superior Court of California, for the County of Sacramento, 10 Department #39 thereof.11 The Plaintiffs OAKLAND RAIDERS, a California Limited 12 Partnership, and A.D. FOOTBALL, INC., a California Corporation 13 were represented by ROGER A. DREYER, JONATHAN W. HUGHES, 14 Attorneys at Law, County of Sacramento, State of California.15 The Defendants OAKLAND-ALAMEDA COUNTY COLISEUM, INC.; 16 EDWIN O. DESILVA were represented by JAMES J. BROSNAHAN, ARTURO 17 GONZALEZ, JOHNATHAN E. MANSFIELD, MELISSA JONES, Attorneys at 18 Law, County of Sacramento, State of California.19 The Defendant ARTHUR ANDERSEN was represented by STAN G. 20 ROMAN, FREDERICK S. FIELDS, Attorneys at Law, County of 21 Sacramento, State of California.22 The following proceedings were then had, to wit:23 THE COURT: Might not be surprised to learn that in ten 24 minutes I had to look at the issue, I had found absolutely 25 nothing. But in my experience, it's very common for one expert 26 to comment on the anticipated expert testimony of others because 27 we customarily instruct the jury to weigh the opinions of one 28 expert against the other. And they like to hear the opinions of

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1 one against the other with respect to their work product. 2 I haven't heard any assurance that the defense experts 3 will not be called; and therefore, I'm going to allow this 4 witness to testify with respect to his opinions of the work 5 product of the defense experts. 6 If the defense experts do end up testifying, they will at 7 least have the benefit of this witness' opinion of the work 8 product; and therefore, can be prepared to respond to it when 9 they testify as opposed to having to call this witness in 10 rebuttal and then your experts in ser-rebuttal. 11 And if it turns out that your experts do not testify for 12 whatever value it may have, if you want me to, I might be 13 persuaded to instruct the jury to disregard any testimony of 14 this witness criticizing the work product of experts of others 15 who did not testify in this trial.16 Skip, you may bring the jury in. 17 THE BAILIFF: Yes, sir. 18 THE COURT: Okay. Let's proceed.19 DIRECT EXAMINATION (RESUMED)20 By ROGER A. DREYER, Counsel for Plaintiffs, Oakland Raiders:21 Q. When we go through this, Dr. Dubin, let's just kind of go 22 through the major categories, and you tell us why it is that you 23 wanted to get this date. 24 And we are now on Roman numeral three?25 A. Yes. Roman numeral three is the attendance per manifest 26 for a different period of time from the National Football League 27 web site. And, also, again, an indication of which team won 28 each contest, so it complements the second source.

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1 Q. Another fact check? 2 A. No, it's actually a different period of time. You notice 3 that item two has a gap in the middle for years. We had to go 4 to some other source for the middle two years. 5 Q. Item Roman numeral four. 6 A. That's population data. 7 Q. Why do you need to know that? 8 A. Well, because one important factor considered by other 9 researchers and sensibly is the size of the area in which a 10 football stadium will sit in terms of how many people are 11 available to buy tickets and go see the product -- a football 12 game.13 Q. Roman numeral five.14 A. That's the start time per manifest. It's "Quick Stat Web 15 Site". "Quick Stat" from 1995 through 2001.16 Q. Why would you need that?17 A. Well, the start time, according to the literature, 18 influences people's decisions in the following sense. 19 Night games react differently for people than day games. 20 And we all know Monday night, for instance, is a totally 21 different animal. There is only one contest on Monday night.22 Q. Roman numeral four.23 A. Six? 24 Q. I'm sorry. Six, yes.25 A. Those are social demographic data that were taken from -- 26 also from the census -- from the United States Census.27 Q. Why would you need to know this?28 A. Many studies have included factors. Such as per capita

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1 income, and also factors measure in the percent of the 2 population below the poverty level or racial compositions in 3 terms of the demand. So that people's incomes might affect 4 whether or not they go to a game. 5 Q. Roman numeral 7. 6 A. Seven is the Street & Smiths Sports Business Journal that 7 was used for the average December temperature. 8 Q. Game time temperature? 9 A. Yes.10 Q. You are looking for weather and how weather impacts?11 A. Yes. The literatures indicate, and I found also that, for 12 example, people don't like sitting in the rain.13 Q. You wanted to check that to make sure as it relates to 14 actual performance of games as opposed to just making this 15 supposition and running?16 A. That's what empiricists do. They check it all.17 Q. Okay. Next roman numeral.18 A. I think we are on eight. These are factors that were 19 derived from the other steps above. So we created variables, 20 for instance, isolating the Raiders. Whether the Raiders were 21 the home team in a particular contest, where they -- i.e., were 22 they playing at home -- at the Coliseum? Were the Raiders a 23 visitor to another team? Whether the Raiders were part of that 24 game at all? The day of the week the contest was held, so that 25 we could distinguish between Sundays and Mondays and Saturdays. 26 Then the overall winning percentage which was looking at 27 how the team had done up to the point in time of the game, so --28 Q. Why would you want to check that out?

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1 A. Because that could be an influence on either attendance or 2 ticket demand because presumably if the team is doing better, or 3 importantly, if the visiting team is a hot team, that may 4 influence your decision to go to that contest. 5 Q. Bless you. 6 And in terms of that data, is that, again, just trying to 7 show how you refined down all the nuances so you can have a more 8 reliable conclusion? 9 A. Yes.10 Q. And to determine whether intuitive result is consistent 11 with what statistics have demonstrated?12 A. Well, it's not only to check whether an intuitive result 13 is found in the data, but it's also to quantify the magnitude so 14 to be able to answer the question -- suppose this team had 15 performed better, what would have happened? Or suppose this 16 team had performed worse, what would have happened?17 Q. And these are some of the analysis that you posed to 18 yourself and ultimately ran your models and reached conclusions, 19 true?20 A. Yes.21 Q. And the information relative to the Raiders, when you got 22 information as it relates to this case as to being asked to 23 answer the question, What would happen if the representations in 24 1995 --25 THE REPORTER: I'm sorry, Mr. Dreyer.26 Q. (By Mr. Dreyer) You had also gotten information, 27 questions was going to be posed if representations in 1995 about 28 PSLs had been true, what would have happened, true?

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1 A. Yes. 2 Q. So you need to get this data to analyze it and formulate 3 your graphs so that you could ultimately answer these questions? 4 A. Yes. 5 Q. And reach your opinions? 6 A. Yes. 7 Q. All right. Let's look at some of the graphs that you got 8 and some of the charts. 9 I'm going to show you Exhibits 426, 427 and 428. 10 Can you tell us, first of all, are these charts that you 11 created -- your office?12 A. Yes.13 Q. What's the information source?14 A. For capacity, the information source would be the -- let 15 see, I believe it's the NFL Football League Summary Of 16 Attendance.17 Q. And this information relative to capacity at different 18 years with different stadiums, why would that be important for 19 your analysis?20 A. Well, different stadiums come in different sizes. Some 21 are small and some are large. And one of the things that you 22 need to think about is when you are comparing tickets sold, you 23 might want to compare it to the size of the stadium. 24 So an absolute number of tickets look different in a big 25 stadium versus a small one. So when I look at season tickets 26 and I compare it to capacity, I'm looking at how many season 27 tickets are sold in that stadium. If I look at how the 28 attendance is moving from one team to another, I'm comparing it

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1 to the capacity of the stadium. 2 Q. And when you talk about season tickets and your analysis 3 that you are going to provide to the jury, are you also trying 4 to evaluate and gauge what season ticket base is for stadiums? 5 A. Yes. 6 Q. And how that affects future sellouts? 7 A. Yes. 8 Q. All right. What about season ticket base impacts 9 sellouts?10 A. That's an interesting question. I found empirically in my 11 studies that season ticket base which I define as the percentage 12 of the capacity of a stadium sold as season tickets has a very 13 important influence on the probability or likelihood that a team 14 will sell out.15 Q. Now --16 MR. HARRIS: Your Honor, I'd like to object and move to 17 strike, and I would like to approach.18 (Discussion between Court and counsel unreported herein).19 THE COURT: You may proceed as we discussed in chambers.20 MR. DREYER: Thank you, Your Honor.21 Q. (By Mr. Dreyer) Dr. Dubin, the exhibits -- it's been a 22 while -- can you tell me what the numbers of those exhibits are 23 again?24 A. Are you referring to all of them or the one in capacity?25 Q. The three?26 THE COURT: 426, two seven and two eight.27 MR. DREYER: Thank you, Your Honor.28 Q. (By Mr. Dreyer) What these charts about capacity, what is

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1 important for you in reaching your opinions as it relates to 2 capacity of stadiums? 3 A. These are the capacities of the stadiums, and I use that 4 as a piece of information in my analysis. 5 Q. And you have every team in the NFL or just the Raiders? 6 A. No, I have all teams. 7 Q. Why? 8 A. Because I am doing a study of NFL ticket demand and 9 attendance as it applies to the NFL, and then I draw conclusions 10 with respect to the Raiders.11 Q. Now, the years for these capacities, let's do the number 12 of the exhibit, and then the year, please?13 A. The year for 426 is 1995.14 Q. So that would be the NFL universe in 1995 the teams in the 15 stadiums and their capacities?16 A. Yes.17 Q. And capacity is everything. We are talking season 18 tickets, suites, comps, team seats, everything?19 A. Capacity is a measure of the number of seats in the 20 stadium.21 Q. Capacity as it relates to attendance, how do those two 22 figures correlate with each other?23 A. Well, they don't necessarily correlate to each other. But 24 in many circumstances a bigger house will have more people in 25 it.26 Q. And how does sales -- the term "sellout," how does that 27 correlate with capacity in your opinion?28 A. Oh. I have defined for purposes of my analysis a sellout

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1 as an instance in which 95 percent of a stadium's capacity is 2 sold out for the year. 3 Q. How did you reach that basis for that opinion? 4 A. Well, I know that I needed an operational definition of a 5 sellout. And I defined it that way because I knew that a 6 certain fraction of seats in the stadium would not be sellable, 7 and those are again the comps and the ones that are blocked by 8 posts and things like that. 9 So I looked at Raiders information from their manifest to 10 find a number that was compatible with the information about the 11 certain games in 1995 for the Raiders.12 Q. Okay. Now, the next exhibit, the number and the year, 13 please?14 A. Next exhibit is 427 is 1996.15 Q. Same situation. In terms of capacity of each stadium as 16 it relates to the team?17 A. Yes.18 Q. '95, where did -- this is based on the NFL data and the 19 team data -- 20 THE REPORTER: I'm sorry, Mr. Dreyer.21 Q. (By Mr. Dreyer) This information of these three documents 22 is based upon your research as to the data that was out there 23 available as a team capacity in year, fair?24 A. Yes.25 MR. DREYER: I would move these three exhibits in, Your 26 Honor.27 MR. HARRIS: Objection. Hearsay, Your Honor.28 THE COURT: These exhibits are hearsay. They

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1 appropriately formed the basis of his opinion despite the fact 2 they are hearsay because they are reliable, but that doesn't 3 make the documents independently admissible. 4 The objection to all three is sustained. 5 Q. (By Mr. Dreyer) Well, Dr. Dubin, the data on these 6 documents from your perspective, have you relied upon it and 7 reached the opinions that you have in this case? 8 A. Yes. 9 Q. And have you been doing your research in the capacity, are 10 you confident in your mind that the numbers that you have are 11 accurate as it reflects to the different teams and the different 12 years?13 A. Yes.14 Q. And in terms of this information that's there as it 15 relates, for example, to the teams across the NFL, why would you 16 need to know the different capacities for different teams and 17 creating your model and reaching your opinions in this case?18 A. Because I formed various measures compared to the capacity 19 of the stadium. One I've described is sellouts. So I say if a 20 stadium sells out 95 percent of its tickets in a given year, I 21 say that's a sellout for that season for that team.22 Q. Now, in terms of reaching your opinions in this case, did 23 you look at the concept of demand as the NFL -- NFL wide, all 24 the teams?25 A. Well, that's where I began my analysis. NFL wide.26 Q. Why would you want to be able to make that analysis?27 A. Because it's appropriate to look at all the data points 28 and statistical study. And the Raiders are not a team in

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1 isolation. They are part of this league. 2 Q. So looking to what other teams do, how they sell out or 3 don't sell out, and what demand, why is that relevant to your 4 analysis in this case? 5 A. Because we learned -- I learned a considerable amount by 6 looking at the behavior of other teams over time, and how 7 various factors influence their ability to sell tickets, and 8 their ability to sell out from season to season. 9 Q. Now, 1995, where did the Coliseum rank in terms of size of 10 the stadium in the NFL?11 A. They were --12 MR. HARRIS: Objection. Hearsay.13 THE COURT: It is hearsay. You are asking for a fact 14 rather than opinion. Sustained.15 Q. (By Mr. Dreyer) In terms of your analysis, is the 16 different -- comparing the different size of stadiums, 17 Dr. Dubin, important for you in your model to be able to compare 18 different teams based upon their capacity?19 A. Well, yes. If I am going to define a sellout as 95 20 percent of capacity, it's going to take a larger number of 21 tickets sold to produce a sellout for a big stadium relative to 22 a small stadium.23 Q. And in terms of your analysis here relative to this 24 information you had, did you assume it was accurate relative to 25 what you were being -- the information you got on capacity?26 A. I don't know if I assumed it was accurate. I attempted to 27 verify its accuracy because I derived these figures from the 28 official NFL statistics. And where I could, I compared the

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1 official NFL statistics to other sources of information. And 2 the other sources of information where I can make comparisons 3 such as the box office statements for the Raiders. 4 Q. Why would you need to be able to make those comparisons? 5 A. I don't know that I would need to. If I decided that the 6 NFL's official statistics were the end of the word on the 7 subject, but I'd like to push the NFL, and I would like to keep 8 testing the data for accuracy. 9 Q. Now, in terms of Oakland Raider capacity, we've asked you 10 to evaluate and render opinions, representations -- if 11 representations may have been true, whether there would be 12 sellouts, based upon your background, training and experience 13 and your analysis in this case, true?14 A. Yes.15 Q. Have you done that analysis?16 A. Yes.17 Q. And in terms of looking at future years, did you need to 18 know whether there was growth in the capacity of the stadium?19 A. Yes.20 Q. And did you answer that question from your perspective 21 relative to whether the Oakland Coliseum capacity grew in 1996?22 A. Yes. I observed that the Oakland Raiders capacity changed 23 between 1995 and 1996.24 Q. Would you need to know that information for reaching your 25 opinions as to whether there would be a sellout in 1996, if the 26 capacity, in fact, grew?27 A. Yes.28 Q. And why would you need to know that?

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1 A. Well, again, if my definition is to look at 95 percent of 2 the stadium as sold in form of tickets as a sellout, then if the 3 place is bigger, I need to know how much bigger it was to apply 4 95 percent to it to decide whether it was going to be sold out 5 the next year. 6 Q. And in looking at growth like that, is that a factor in 7 terms of demand whether that's going to be something that needs 8 to be considered? The demand exists to deal with the growth of 9 the capacity?10 A. Certainly could be to compare the demand to the change in 11 capacity, yes.12 Q. Now, in this case, we provided you along with a lot of 13 other things, you also received the deposition testimony of our 14 marketing expert Hamp Howell, correct?15 A. Yes.16 Q. And we've also provided you information relative to his 17 opinions as he articulated for the jury regarding the issue of 18 sellouts, correct?19 A. Yes.20 Q. And you are aware we've asked you to assume he has 21 testified that it's his opinion that had the representations 22 been true and as the sellouts in 1995, that it was sold out in 23 1995 and in 1996 and on into the future. We've asked you to 24 assume that, correct?25 A. I know that that's his opinion, yes.26 Q. Now, what about getting that information from a marketer 27 and his opinion? What, if any, benefit or help is that to you 28 in reaching your opinions?

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1 A. Well, Mr. Howell approaches things somewhat differently 2 than I do but from an equally valuable perspective. He is a 3 person who does sports marketing as I understand, and he does 4 this professionally. So he is in a position to access the 5 demand in 1995 for the Raiders, and how it evolved over time. 6 Whether there was excess demand present, and how the 7 representations fed into that. 8 Q. And you understand that his opinion is that based upon the 9 representations made and the data that existed, there was an 10 excess demand situation in 1995 when these representations were 11 made, fair?12 A. Yes.13 Q. Now, we've also provided to you the representations that 14 were made by way of the July 20th, 1995 press release, true?15 A. Yes.16 Q. And that's the one about the 44,700 PSLs and the 2,280 17 suite seats sold as of July 20th, 1995, true?18 A. Yes.19 Q. We've also provided to you the advertisements that predate 20 August 7th that indicate the 1995 season is sold out?21 A. Yes.22 Q. We've also provided to you the advertisements that 23 indicated this was going to be the last time -- it would be the 24 last time that they would be able to see a Raiders game for the 25 next ten years, true?26 A. Yes, I've seen that.27 Q. Now, in terms of your analysis, you have the information 28 relative to this project concerning the PSL product that was

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1 being sold in 1995, true? 2 A. Yes. 3 Q. And your understanding relative to that product was that 4 it had a ten year initial term with a five year remarketing 5 term, true? 6 A. That's my understanding. 7 Q. All right. Now, in terms of looking at the data that you 8 have as demonstrated on 425, did you look into the issue of 9 tickets sold relative to different teams?10 A. Yes.11 Q. Why?12 A. Well, for two reasons. 13 One I was interested in how different factors affected 14 tickets sold at different teams. So I wanted to quantify the 15 performance effect. How important was performance in affecting 16 the demand for tickets. 17 The second inquiry or really my first inquiry was also how 18 likely it was that when a situation of excess demand occurred, 19 that excess demand would persist or repeat from year to year for 20 a team.21 Q. And why did you want to look into that? What was 22 important about that analysis?23 A. It had been written that -- in the economics literature 24 that excess demand was a characteristic of NFL football. And 25 several authors had written that if you look across the league, 26 football has many instances of excess demand. And it's one of 27 the things I wanted to check because an important observation is 28 that -- by these authors is that excess demand not only is

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1 present but can persist from season to season; and therefore, 2 sellouts will persist from season to season. 3 Q. And was that the issue -- one of the issues that we asked 4 you to address in reaching opinions in connection with this 5 case? 6 A. Yes, it was. 7 Q. The predictability of how -- whether sellouts -- 8 THE REPORTER: I'm sorry, Mr. Dreyer. 9 Q. (By Mr. Dreyer) Whether sellouts would beget sellouts, 10 correct?11 A. Yes. You asked me that.12 Q. And your opinion in the NFL is that phenomenon, does it, 13 in fact, happen?14 A. Oh, most definitely it happens, yes.15 Q. What do you base that on?16 A. Well, starting from simple observations. Like looking at 17 websites and reading documents, reading, for instance, that many 18 teams have had sellouts for strings of 20 years with extensive 19 waiting lists to get new tickets. That's the threshold matter. 20 Then I went on to sort of analyzed the issue from scratch, 21 if you will, by assembling the data to look to see in each 22 season whether it was true that a sellout would follow another 23 sellout?24 Q. And in the NFL, does that phenomenon exist with teams?25 A. For many teams, it does, yes.26 Q. You've done some graphs that correlate that data, have you 27 not?28 A. Yes.

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1 Q. Let me show you Exhibits 429 and 434. Now, let's look at 2 429 first. 3 What does 429 represent? 4 A. 429 is a graph I produced that lists all the teams in the 5 NFL for the period from 1995 through 2001. 6 Q. And what was the purpose of this graph? 7 A. The purpose was to record whether a team had a sold out 8 season in a certain year, and I colored a square red if that 9 team had a sellout season. And I colored the -- or I left it 10 white if it was not sold out, and I used black to indicate that 11 the team was not part of the NFL in that season.12 Q. And this chart 429, does it serve as a basis for your 13 opinion relative to this concept of sellouts?14 A. In part, yes.15 Q. And in what regard?16 A. Well, I noticed from the chart, for instance, that there 17 are sections of the chart for many, many, many teams. I can 18 count them, but maybe 20 or so, where every single season from 19 1995 through 2001 was a sellout season. 20 So, for instance, the Bears sold out every season in 1995, 21 1996, 1997, all the way through 2001. The Broncos, the Packers, 22 many teams had fall into this category.23 Q. Now, this information regarding sellouts, would that help 24 you in terms of predicting, addressing this issue of whether 25 consecutive sellouts -- what happens as a result of consecutive 26 sellouts?27 A. Yes.28 Q. How does it help you in that regard?

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1 A. Well, it gives me the ability to look at the historical 2 data and build a statistical model of the likelihood that a team 3 will sell out in a given season, given that it's sold out in 4 past seasons. 5 Q. Now, in terms of the group that you have divided in your 6 chart, this is in three groups, correct? 7 A. Yes. 8 Q. What's the basis for the reasoning behind your analysis in 9 dividing the three groups?10 A. I split the teams into three groups. 11 The first group was a group that I would say is in excess 12 demand the majority of the time. So that means from the period 13 1995 through 2001, I would say that these teams had excess 14 demand present for the majority of those seasons.15 Q. Now, in Group A when you say they have excess demand, what 16 do you base that on?17 A. My definition of -- a definition of excess demand that I 18 have used?19 Q. And define that for us, for the jury?20 A. Well, I've looked at two things in this particular chart 21 to measure excess demand. In the presence of excess demand, I 22 would expect a sellout to occur. People want more of something. 23 There is nothing you would expect to get a sellout, so that's 24 the first criteria.25 The second criteria is a strong season ticket base. A 26 large percentage of the capacity of the stadium sold in the form 27 of season tickets.28 Q. Okay. Why is that important from the standpoint of your

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1 opinions? 2 A. I think in the presence my opinion is that in the presence 3 of excess demand, there will be people that want in, so to 4 speak. The only way in will be to buy a season ticket, or, if 5 required, a PSL. So the only way to get into the stadium would 6 be through a season ticket. So I would expect that excess 7 demand would be very highly correlated with a strong season 8 ticket base. 9 Q. Now, in terms of history, you went back and looked at 10 historic sellouts as well, correct?11 A. Yes, I did.12 Q. That's Exhibit 434?13 A. Yes.14 Q. And can you tell us what 434 represents?15 A. This was a much longer look at the NFL all the way back to 16 1982. And while the majority of my data that I have collected 17 for my analysis is from 1995 through 2001, I did have some 18 information that allowed me to go all the way back to 1982. 19 It's just that the information wasn't complete.20 Q. And, in fact, there are some dates that you didn't get 21 information for, correct?22 A. Yes. I'm missing 1983, 1986, 1989 are some examples.23 Q. Now this information in terms of this data that you have, 24 what is important for you, again, in reaching your opinions 25 relative to sellouts and predictability of sellouts?26 A. Well, there are two opinions that I reached by looking at 27 this data. 28 One is that historically there were many teams that were

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1 able to sell out for 20 year period of time. And that 2 correlated with the information I found on the websites that 3 indicated that there was such events. 4 Secondly, it also tells me that excess demand is 5 persistent. It moves from period to period. So that there are 6 long, long strings of sellouts in the NFL. 7 Q. And, now, in terms of looking at the issue, and we are 8 going to get to this afternoon, about performance of teams. 9 We've heard some discussion about whether performance 10 influences the attendance or capacity being filled. That sort 11 of thing.12 What about this information that assists you in addressing 13 the issue of performance of teams, and how that correlates, if 14 at all, or to what extent to sellouts?15 A. Well, I've asked -- I've also analyzed performance 16 separately in models of ticket demand and attendance, but I've 17 also inquired of this data. Does the change in performance 18 affect the team's likelihood that they will sell out from season 19 to season, or change the likelihood that a team that wasn't 20 selling out will start to sell out.21 Q. And how would that help you address the issue of whether 22 performance is a factor or to what extent it is a factor on 23 people buying tickets?24 A. Well, if I observed, for instance, that there was a big 25 performance effect, I would know that it was likely that as 26 teams changed their performance, more and more people would go 27 to the games. And it would become likely that I would see teams 28 able to switch between non-sellout situations and sellout

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1 situations. 2 Q. Okay. So you could track what effect, if any, performance 3 had on people buying tickets? 4 A. Yeah, that's what I do, yes. 5 Q. And that's this whole thing about what your project is, 6 and when you get hired is to determine demand for a product and 7 how it affects how people react to demand? 8 A. Yes. 9 Q. The topic of excess demand, can you define that for us in 10 your terms as an economist? What does that mean?11 A. It's an old concept in economics. It just means -- it's 12 basically the demand exceeds supply. It means that people's 13 interest in a product exceeds the amount of the available.14 Q. When you have a situation you talked earlier before we -- 15 we had a sidebar about the issue of the band wagon effect. That 16 sort of thing. How does a band wagon effect play out in this 17 kind of a product where there is excess demand?18 MR. HARRIS: Objection. Vague and ambiguous. 19 THE COURT: Sustained. Rephrase it.20 Q. (By Mr. Dreyer) You talked earlier about Dr. Becker and 21 the concept of how people react to band wagon?22 A. Yes.23 Q. If you have excess demand, what impact does that have in 24 your opinion on the issue of band wagon?25 MR. HARRIS: Same objection.26 THE COURT: Do you understand what he is asking?27 THE WITNESS: I believe I do. 28 THE COURT: Overruled .

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1 Q. (By Mr. Dreyer) Go ahead. 2 A. Well, Professor Becker noticed that excess demand is a 3 characteristic of certain grouped behavior sports or activities. 4 Like movies and concerts and restaurants. 5 And he was saying it's -- it's interesting that some 6 restaurants are full with people, and there is more people that 7 would like to get in than there are available seats as compared 8 to right next door, an empty restaurant. 9 And the concept of the band wagon was that a certain 10 popularity begins to build and our evaluations to be with the 11 crowd and the club with the popular setting are such that we are 12 willing to pay a higher price to get in and be part of that -- 13 that activity.14 Q. Now, when you have -- with the NFL as a product, there is 15 a limited amount of seats in each stadium, correct?16 A. Yes.17 Q. And the exhibits that we talked about relative to capacity 18 for '95, '96 and '97 give you the numbers relative to capacity 19 for each of these stadiums, true?20 A. Yes.21 Q. Now when you have a situation where you have excess demand 22 for the product, and you have the band wagon concept, where 23 people want to be part of it, what impact does that have on 24 perpetuating sellouts?25 A. Well, the interesting thing about excess demand is that 26 normally it just disappears for most products. If people have 27 excess demand for strawberries, for example, they want more 28 strawberries, then come to the supermarket or come to the market

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1 that day. The price by the seller normally goes up enough to 2 make the excess demand disappear. 3 But in these band wagon activities, where there is a group 4 behavior, the band wagon says that excess demand will exist and 5 it will persist. It will stay there from period to period. 6 People pay the high price because they want to be part of 7 the crowd that sees the movie or the concert. And in those 8 situations have limited capacity. That will mean there will be 9 excess demand. More people will want in than there are 10 available seats.11 Q. And if there aren't available seats, what does that do?12 A. Creates a waiting list and excess demand.13 Q. And in that context in football, does that situation 14 exist?15 A. Yes.16 Q. And what do you base that opinion?17 A. Well, I've measured indicia -- what I'd call indicators of 18 excess demand. And I've looked at the different teams in 19 different years to -- to detect whether they have excess demand 20 present.21 Q. And when there is a situation where you have excess demand 22 with a limited amount of supply, does that in the NFL context -- 23 that demand perpetuates sellouts from year to year to year?24 A. Yes, it does.25 Q. As an economist looking at the NFL; is that product 26 different than what you generally see in the world of demand and 27 excess demand?28 A. It is normally -- we call it supply and demand. That's

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1 what you hear economists say all the time. Normally the excess 2 demand would disappear quite quickly or in some cases they might 3 develope some excess supply, but there really is no pattern to 4 it. 5 But in football, it's persistently the case for many 6 teams. They are year after year in excess demand. And in 7 converse, there are many teams that get stuck in the excess 8 supply version of things, where they're persistently in 9 undersold stadiums year after year after year.10 Q. Now in that context if a team gets into that environment, 11 where they have an excess supply and that exceeds the demand, is 12 that a cycle in your opinion as an economist based upon the work 13 you've done; is that cycle hard to break? 14 A. Yes. They are both hard to break in a sense. Both of 15 these ideas of excess demand, excess supply in football seem to 16 be very persistent. There is not much movement out of those 17 groupings.18 Q. What do you base that opinion on? This persistent, and 19 there's not moving out of the grouping?20 A. I gave that on my statistical study of the likelihood that 21 a team in excess demand in a prior season or two seasons will 22 continue to be in excess demand the next season.23 Q. Now, this chart, 429, Group B. What is Group B?24 A. Group B is a middling case of teams that really I don't 25 think are in either excess demand consistently or excess supply 26 consistently.27 Q. And that's a smaller grouping than Group A?28 A. Yes.

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1 Q. And this, again, is reflective of your opinions and your 2 analysis on this case? 3 A. Yes. 4 Q. And you rely on these charts, 429 and 434, to illustrate 5 your opinions that you have been giving to us? 6 A. Yes. 7 Q. And now what is Group C? 8 A. Group C is a set of teams that I would call the worse 9 teams in the league in terms of performance with respect to 10 sellouts or the ability to sell tickets. They are teams that 11 are in constant -- pretty constant excess supply.12 Q. All right. And do these show the problem with breaking 13 out of the cycle of excess supply?14 A. Yes, it does because a team wants in a white square, stays 15 in the white square for a long period of time.16 MR. DREYER: Your Honor, at this time, I want to move in 17 -- I would ask to move in Exhibits 429 and 434.18 MR. HARRIS: No objection, Your Honor.19 THE COURT: 429 and 434 are entered.20 MR. DREYER: All right. Let's put up 429, please. 21 Q. (By Mr. Dreyer) Now, we've been looking at it. It shows 22 sellouts for the period of time in '95 to 2001, correct?23 A. Yes.24 MR. DREYER: If we can just now go to the Group A.25 Q. (By Mr. Dreyer) Now, this portion of your chart 26 demonstrates what for the jury?27 A. These are teams that I would say are in excess demand the 28 majority of the time across the period 1995 through 2001.

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1 Q. And the red squares, as you indicated to us, represent 95 2 percent capacity? 3 A. Yes. I'm coloring a cell red if they sell out in that 4 particular season. 5 Q. And in terms of this group, you've been able also -- we 6 will talk about this afternoon -- to evaluate sellouts and 7 performance of the teams as to whether it was a factor in 8 perpetuating the sellouts, correct? 9 A. Yes.10 Q. As opposed to this concept of people want to be there, and 11 there is this excess demand, and that's what's driving the 12 sellouts?13 A. Yes.14 MR. DREYER: Let's go to Group B, please. 15 Q. (By Mr. Dreyer) This is the middle group. 16 Now, we have some that are sold out, and some that are 17 not, correct?18 A. That's correct.19 Q. Now, in terms of this section, what does it tell us about 20 these trends?21 A. Well, here, you are seeing teams that, again, I would say 22 are not in excess demand consistently. And, yet, there are 23 occasions, where there are strings of sellouts. So that needs 24 some explanation.25 Q. Why, for example, wouldn't the Vikings be in Group A?26 A. Because it takes more than a continuation of sellouts for 27 me to say that a team had excess demand present. Sometimes a 28 team can manage a sellout without actually having excess demand.

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1 Q. How do they do that? 2 A. Well, since the other concept that I am looking at is the 3 season ticket base, the way that would happen would be through 4 day of game sales. 5 In other words, if the team were -- had a very anemic 6 season ticket base, they hadn't sold very many season tickets 7 compared to other teams, I wouldn't say they were in excess 8 demand. Yet, they could scramble -- they could scramble real 9 hard, hussle and get people to come in somehow for day of game 10 seats, and buy them day of game or that week, or sometimes it's 11 the case that a team will actually spend money to have the 12 people that televise the games buy the tickets.13 Q. And that concept of blackout; is that tied into selling 14 out as you understand it based upon your research?15 A. Yes, there is a related concept. Sellout is -- a sellout 16 concept is very close to -- sorry -- the blackout concept is 17 very close to sell out, but there's a technical distinction. 18 It's a matter of timing. The league says you have to achieve a 19 sellout 72 hours before the game.20 Q. So when you look at this chart -- 21 MR. DREYER: If we can -- let's expand the whole chart. 22 Q. (By Mr. Dreyer) When you look at this chart, this doesn't 23 -- if you'd look at the chart, would it be able to tell you 24 whether the games were sold out for the season last minute, or 25 whether they were sold out by season tickets sales in March?26 A. No, it wouldn't tell you that.27 Q. Now, the third category is what?28 A. Well, I call them the -- this is sort of worse teams in

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1 the NFL. 2 Q. Worse in what context? 3 A. Well, I used the word performance, but in the context of 4 excess demand or sellouts. 5 Q. This doesn't have anything to do with team performance 6 relative to their win lost record? 7 A. No, not performance in that sense. It's sort of more a 8 financial performance or how they did in terms of selling 9 tickets.10 Q. This chart only addresses the sellout under your criteria 11 95 percent?12 A. 95 percent of capacity, yes.13 Q. On this chart, for example, we see the Oakland Raiders. 14 It starts in 1995, which would have been their first year, true?15 A. Yes.16 Q. All right. And this capacity, you have a red mark for 17 1995?18 A. Yes.19 Q. How did you come to that conclusion?20 A. As I compared the tickets that were sold according to the 21 NFL official statistics to the capacity of the Oakland Raiders 22 stadium for the season. And by making that comparison, the 23 percentage of the capacity that was sold that year was about 97 24 percent. So by my definition, that would have been a sellout.25 Q. These materials you had, would they dictate for you or 26 tell you whether the seats were sold out in July of 1995, or 27 whether they were sold out like the last game in December was 28 sold out in the hours immediately preceding the game?

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1 A. No, that doesn't -- you don't get that from this chart. 2 Q. So this chart is exclusively to determine whether 3 statistically they exceeded -- they were at or exceeded 95 4 percent of capacity on the time that the kickoff -- the ball 5 hits the air and the game is started? 6 A. It's that, that's correct, but it's also measured from the 7 perspective of the entire season. 8 Q. All right. Now, let's go back to A before we break for 9 lunch. 10 On A, you said these are teams that sell out virtually 11 every time. I can't remember specifically what you said. Here 12 we have a three -- I see three different white spaces. One with 13 Carolina '95. Cleveland in '95. And then in Jacksonville, 14 2001, correct?15 A. Yes.16 Q. Now this information you had on this chart, this is what 17 you had at the time you did your report you testified in your 18 deposition?19 A. Yes.20 Q. Had you yet had the 2002 statistics made available?21 A. I still don't have the 2002 statistics available except 22 with respect to the Raiders, which I did have before the 23 deposition.24 Q. All right. So the league-wide statistics have just not 25 been published or made available to the public such that you 26 could incorporate those into your charts; correct?27 A. That's correct, right.28 Q. Why are these teams -- first of all, why are the Panthers

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1 in the Category A -- Group A in performance relative to selling 2 out in this chart if they have a white square? 3 A. Because I would say that this team did rather well across 4 all these seven seasons. In other words, it hit the majority of 5 the seasons. It was able to manage sellouts and to have a 6 strong season ticket base. 7 Q. Is that a PSL ticket, do you know? 8 A. I think they are, yes. 9 Q. The Jacksonville Jaguars end of the year, 2001, that's 10 white at the last, last time. Why are they in Group A?11 A. For the same reason. They managed to make it in based on 12 my criteria or definition of excess demand for the majority of 13 the seven seasons that I observed them.14 Q. Now, the Cleveland Browns, do you have an understanding 15 whether they didn't exist for three years?16 A. Yes.17 Q. And that there was a new stadium in 1999?18 A. Yes.19 Q. So the 1995 statistic was based upon the sales of the 20 original team and the old stadium?21 A. Yes.22 Q. And then no team for three years, and then a new stadium?23 A. Yes.24 Q. And are you aware of whether the Cleveland Browns 25 situation for sales has a PSL product involved?26 A. I'm not actually sure.27 Q. Okay. 28 MR. DREYER: All right. This is a good time to break,

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1 Your Honor. It is a couple of minutes after twelve. 2 THE COURT: We will be in recess until 1:30. Observe the 3 rules. 4 (Luncheon recess) 5 ---oOo---

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Dubin Testimony - PM Part I (pp 5181-5233)page 5181

1 WEDNESDAY, MAY 21, 2003 2 AFTERNOON SESSION 3 --oOo-- 4 The matter of OAKLAND RAIDERS, a California Limited 5 Partnership, and A.D. FOOTBALL, INC., a California 6 Corporation, Plaintiff vs. OAKLAND-ALAMEDA COUNTY COLISEUM, 7 INC.; EDWIN O. DESILVA; and ARTHUR ANDERSEN, LLP, Defendants, 8 Case Number 97AS06708, came on regularly this day before the 9 Honorable RICHARD K. PARK, Judge of the Superior Court 10 District of the State of California, in and for the County of 11 Sacramento, Department 39.12 The Plaintiffs OAKLAND RAIDERS, a California Limited 13 Partnership, and A.D. FOOTBALL, INC., a California 14 Corporation were represented by ROGER A. DREYER 15 AND JONATHAN W. HUGHES, Attorneys at Law. 16 The Defendants OAKLAND-ALAMEDA COUNTY COLISEUM, INC.; 17 EDWIN O. DESILVA; were represented by JAMES J. BROSNAHAN, 18 ARTURO J. GONZALEZ, AND GEORGE C.HARRIS AND MELISSA JONES, 19 Attorneys at Law. 20 The Defendant ARTHUR ANDERSEN was represented by 21 STAN G. ROMAN and FREDERICK S. FIELDS, Attorneys at Law. 22 The following proceedings were then had in the presence 23 of the jury, to wit:24 --oOo--25 THE BAILIFF: Please remain seated. Come to order. 26 Department 39 is again in session.27 THE COURT: Tell me it's not true. Have you ever heard 28 of such a thing, Counsel, jurors wanting to wear shorts in

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1 court because it's hot in here? 2 JUROR JERUE: It's hot outside. 3 THE COURT: It's not hot in here, is it? I'll tell 4 you, I can't decide whether to let you wear shorts until I 5 see your legs. I'll tell you if you want to wear a nice pair 6 of shorts in here, that will be fine with us. Don't come in 7 here with Levi cutoffs. That goes for all the rest of you as 8 well. 9 MR. DREYER: That doesn't apply to us?10 THE COURT: Certainly not.11 MR. BROSNAHAN: Not going to work.12 THE COURT: Okay. Let's proceed.13 MR. DREYER: Thank you.14 (Whereupon Plaintiffs' Exhibit 445 was marked for 15 identification.)16 MR. DREYER: Your Honor, I'm having marked, and I've 17 given counsel a copy of this. This is the summary of 18 attendance statistics for the American Football Conference 19 and National Football Conference 1994, '95, '96, '97, '98, 20 '99 and 2000, 2001.21 Q These documents -- Dr. Dubin, these are materials that 22 you had in connection with your workup on this case, true?23 A Yes.24 THE COURT: What is the exhibit number on there?25 MR. DREYER: Pardon me?26 THE COURT: What is the exhibit number?27 THE WITNESS: 445.28 MR. DREYER: 445. They're rubber banded, your Honor,

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1 each of those years that I've identified. It's from -- 2 THE COURT: All of them are collectively marked as one 3 exhibit, 445? 4 MR. DREYER: Yes, sir. 5 Q Now, Dr. Dubin, you have in front of you Exhibits 426, 6 427 and 428. These are the stadium capacities for each of 7 these teams. The statistical information you have there, is 8 that what you obtained -- I mean, is it prepared and put 9 together by the National Football League?10 A Yes.11 Q And this is the informational source that you relied on 12 to identify the teams and the capacity for the years '95, '96 13 and 2001, true?14 A Yes.15 MR. DREYER: Your Honor, I would like to offer these 16 three exhibits again. I would like the Court to take 17 judicial notice. The information is contained within these 18 official abstracts, which I believe under the code we can 19 have judicial notice taken of as to their accuracy. 20 Abstracts, as I understand it, under the Evidence Code can be 21 accepted. I've given this material to Mr. Harris, and if he 22 has an objection, I would offer them under the -- ask the 23 Court to take judicial notice.24 THE COURT: Would you hand up 426. Do you have 426 up 25 there?26 What's your position on that, Mr. Harris?27 MR. HARRIS: I don't think it's proper basis for 28 judicial notice. I don't have any problem with Mr. Dubin

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1 saying he relied on these. I guess just the information 2 itself remains hearsay. 3 THE COURT: I think it is still hearsay. I dont know 4 if I should take judicial notice. If you can find some 5 authority for the proposition I take judicial notice of 6 these, I would consider it. 7 MR. DREYER: Your Honor, I have a couple cases, and I 8 have the Evidence Code Section 452 and the legislative 9 intent.10 THE COURT: If you have the code, that won't help us. 11 Do you have some cases that say this is ripe for 12 judicial notice?13 MR. DREYER: Yes, sir.14 Would you like the cites now?15 THE COURT: Yes.16 MR. DREYER: Okay. Redevelopment Agency of the City of 17 Burbank versus Gilmore, the Cal. Reporter cite is -- it's 18 700 Pacific Reporter, 2d series, 806, talks about --19 THE COURT: Do you have the Cal. App.?20 MR. DREYER: Yes, I do. It's 38 Cal.3d, 790. I also 21 have Cal. Reporter. I don't know which resource you have.22 THE COURT: Cal.23 MR. DREYER: 38 Cal.3d, 790.24 THE COURT: What's the other one?25 MR. DREYER: The second one would be the case of 26 Hardman versus Feinstein {phonetic}. That is a 1987 27 decision, talks about the same type of thing in terms of what 28 kind of abstracts the Court can take judicial notice of.

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1 It's 195 Cal.App.3d, 157 at page 160 regarding the report to 2 the Board of Supervisors on the fine arts museum. 3 THE COURT: There is a wide variety of governmental 4 statistical information that one can take judicial notice 5 of. I'm not sure that has been extended to a private 6 organization, but I'm happy to read these and let you know my 7 decision after I have done that. 8 MR. DREYER: Yes, your Honor. I would specifically 9 cite the Court to Evidence Code Section 452, Item H, which 10 talks about facts and propositions that are not reasonably 11 subject to dispute and are capable of immediate and active 12 determination by a resort to sources of reasonably -- 13 reasonable undisputed accuracy.14 THE COURT: That typically refers to weather 15 conditions, streets, counties, cities, all of those kind of 16 things. But as I said, I'll look at these cases. For now, 17 the objection stands.18 MR. DREYER: And specifically, your Honor, on the -- I 19 would also ask the Court to look at the legislative intent 20 that deals with this and specifically talks about subsection 21 (h), indicating that it includes treatises, encyclopedias, 22 almanacs and things of that nature.23 THE COURT: And are you going to be offering 445 on the 24 same basis?25 MR. DREYER: I'm simply identifying at this point in 26 time, your Honor, I just as soon not put it in because of the 27 volume of it. I mean, I'm happy to put those in.28 THE COURT: I'm not inviting any more paperwork.

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1 That's fine with us. 2 MR. DREYER: I'm just using that as a source for these 3 documents, the 426, 27 and 28. 4 THE COURT: Okay. Let's roll. 5 Q (By Mr. Dreyer) All right. While we're on the stadium 6 capacity documents, Dr. Dubin, in terms of looking 7 historically like we've seen on the exhibits that are in 8 evidence, 429 and 434, you've taken out the teams -- 9 Let's put up 429 just for an example. 10 You've taken this out to 2001. And in looking at the 11 sellouts, you're looking at the capacity of each stadium when 12 you make that determination, true?13 A Yes, I am. 14 Q And in terms of stadiums, some of the stadiums in this 15 time frame of '95 through 2001 have changed in their 16 construction or they've changed in -- like the Cleveland 17 Browns have changed to a brand new stadium, true?18 A Yeah, that's correct.19 Q And in terms of the stadium size, that's a factor you 20 need to know relative to making these determinations as to 21 whether it reaches 95 percent of capacity, true?22 A Yes, that's correct.23 Q And as time has gone on, since 1996, when we look at 24 427 and where the Oakland Raiders stood in capacity compared 25 to the other teams in the NFL, they were 21st?26 MR. HARRIS: Objection. Now it's referring to a 27 document that's been ruled out as hearsay and reading from.28 MR. DREYER: I'm not offering it for the truth of the

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1 matter. I'm just offering it as it relates to the opinions. 2 THE COURT: Would you restate the question. 3 MR. DREYER: Sure. 4 Q In terms of where the Raiders have stood relative to 5 their capacity, is that something that you need to know to 6 rely on in reaching your opinions as to looking at this -- 7 these charts. 8 THE COURT: That's a different question. 9 MR. DREYER: It's a different question. I'm laying a 10 foundation for this one, your Honor.11 Q Is that true?12 A Yes. I need to know these capacities in order to do my 13 calculations.14 Q All right. In terms of comparing it with other teams, 15 you need to know how their capacity changes in comparison 16 with others, fair?17 A That's correct.18 Q And over time, since '96, has their rank in the NFL 19 stayed the same in terms of comparing capacity or dropped?20 A No. The Raiders were dead last in 1995, and they 21 raised somewhat to about 21st out of 31 in 1996.22 Q And where do they stand as of 2001?23 A As of 2001, they fell again to 27th out of 31.24 Q All right. And in terms of the future as to what's 25 going to happen with the stadiums or the teams underneath the 26 Raiders, do you have any personal knowledge about whether 27 those teams have new stadiums on the books ready to be built 28 or not?

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1 A Some of these stadiums that were below the Raiders in 2 terms of size as of 2001 have increased in the last year, I 3 believe, or are on the boards to increase so that the Raiders 4 will fall again to a lower position than the set of teams. 5 Q Okay. Now, you talked about in the morning session 6 season ticket base. 7 Do you recall that testimony relative to the topic of 8 season ticket base? 9 A Yes.10 Q What is season ticket base?11 A Season ticket base, for me, is the relationship of 12 season tickets sold to the capacity of the stadium.13 Q Okay.14 THE COURT: Hold on here. Do we still have an issue 15 you're able to look at and resolve during the lunch break 16 with respect to that?17 MR. HARRIS: I'm not sure, your Honor. It depends on 18 where the questioning goes.19 THE COURT: You have no objection to proceeding at this 20 time?21 MR. HARRIS: Not at this time.22 THE COURT: Okay. Proceed.23 Q (By Mr. Dreyer) In your analysis of this case, when 24 you looked at these questions that you asked yourself, did 25 one of the questions that you asked yourself was how season 26 ticket base of teams affected sellouts?27 A Yes, I did.28 Q Okay. Why was -- why do you ask yourself that

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1 question? 2 A Because season ticket base is an indicator of excess 3 demand, as I testified earlier to. 4 Q What do you mean by that? Based upon your background 5 and your training and experience, what about season ticket 6 base is an indicator of excess demand? 7 A Well, if a team is in excess demand, meaning more 8 people want in than there are seats, then the only way in is 9 going to be to purchase season tickets because there is going 10 to be competition for those season tickets from others 11 because they want to protect their spot. 12 So if there is a limited amount of seating and there 13 are more people that want in than the amount of seats, you 14 have to protect your spot in the stadium. Or in the case of 15 Raiders, you would need to buy a PSL in that situation in 16 order to get a season ticket, and therefore protect your 17 spot.18 Q Now, in terms of looking at NFL demand, there's the 19 concept of the playoffs, right?20 A Yes.21 Q In order to get season tickets -- excuse me -- in order 22 to get playoff tickets, you have to get season tickets?23 A I believe you have priority for those playoff tickets, 24 yes.25 Q Is that another reason that people have to obtain 26 season tickets, so they have access to that component of the 27 game?28 MR. HARRIS: Objection, leading and lack of foundation.

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1 THE COURT: Under the circumstances, it's not 2 objectionable to lead an expert witness. Objection is 3 overruled. 4 Q (By Mr. Dreyer) Go ahead. 5 A Yes. 6 Q Now, in terms of if there is no excess demand, like we 7 looked at -- 8 Jeff, can we put back up 429 for me, please. And let's 9 go to the bottom quandrant or third.10 Now, on this Group C that you've told us demonstrates 11 teams that do not have excess demand, what does that -- what 12 effect does that have on a team to compel customers to buy 13 maybe not the attractive games, you know, the best games?14 MR. HARRIS: Objection, vague and ambiguous.15 THE COURT: Restate that question, please.16 Q (By Mr. Dreyer) Are you familiar with the concept 17 "cherry picking"?18 A Yes, I am.19 Q As an economist, what does that mean to you?20 A Well, as an economist or as a consumer myself, a cherry 21 picking situation is one where you pick the best cherries and 22 leave the bad cherries behind.23 Q Okay.24 A So in the case of football, it would be a situation in 25 which if you are not compelled to buy a season ticket, as a 26 fan, you would be able to go up to the stadium and buy a day 27 game ticket for the contest that you would like to see, but 28 not for others.

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1 Q Okay. As a business, again, as an economist, do you 2 have an opinion whether for an NFL franchise whether they 3 want to have people buying all of the seats for the season 4 and the preseason or they want to allow customers to just go 5 ahead and pick the games they want? 6 A I think it's certainly advantageous to the team and to 7 the owners of the team and to the people that are managing to 8 have a situation in which people are not cherry picking, in 9 which the season tickets are purchased ahead of time.10 Q Now, as it relates to the season ticket base, did you 11 want to investigate whether the season ticket base had a 12 correlation to sellouts?13 A I did want to do that.14 Q Okay. Did you have -- as a person in your industry and 15 asking yourself these questions, did you have a sense of what 16 you thought the evidence would be?17 A I expected that if the theory of excess demand were 18 correct that there should be a very strong correlation 19 between season ticket base and sellouts.20 Q If you have excess demand, you would expect high demand 21 on season tickets or that there be a high demand on season 22 tickets?23 A That's correct.24 Q All right. Did you run some graphs for me in 25 connection with this case to demonstrate that concept?26 MR. HARRIS: Your Honor, I think I do have an objection 27 at this point, and I would like to address that.28 MR. DREYER: Well, your Honor, this is no different

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1 than what we've been talking about. We could have addressed 2 this as opposed to now and taken a break again. And I'll 3 represent to the Court based upon my review that this topic 4 is addressed. 5 THE COURT: I've given the opportunity to find that 6 information Thursday. I want to take five minutes to look at 7 it. 8 (Whereupon a discussion was held off the record.) 9 THE COURT: All right. Proceed as we discussed it. 10 MR. DREYER: My understanding, I can proceed where I 11 was going, correct, your Honor?12 THE COURT: Yes.13 Q (By Mr. Dreyer) Exhibit 430 and 431 that are in front 14 of you -- do you have those, sir?15 A Yes, I do.16 Q Can you describe 430 for us, please?17 A Yes. 430 is another table or chart that I prepared 18 that lists the teams in the same order as the sellout chart 19 that we looked at a little while ago, 429.20 Q It's the same chart, same order, same grouping, true?21 A That's correct.22 Q And the purpose of it was what relative to addressing 23 the issue of season ticket base as to sellouts?24 A Well, the purpose was to actually make the calculation 25 of season tickets sold to capacity. And then what I've done 26 in this chart is I've colored the cells this time with a 27 darker red color when the season ticket to capacity level is 28 very high, like over 90 percent, and I've used more pale

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1 colors when the season ticket to capacity level is more 2 anemic or at a lower percentage value. 3 Q And 431 is what, how does that match up with 430? 4 A 431 is exactly the same chart, but on top of the colors 5 are percentages, the actual percentage I calculated from the 6 data that represents that color. 7 Q All right. And it's exactly the same chart, that 8 basically you can compare 429, which is in evidence, as it 9 relates to the season ticket base, correct?10 A That's correct.11 Q Now, did you formulate -- did you address, create these 12 graphs for us for trial so that you could assist us in 13 talking about your opinions relative to what you've already 14 told us as the correlation between season ticket base 15 equating to sellouts?16 A Yes. I prepared these graphs to illustrate the concept 17 that I had researched.18 MR. DREYER: I would like to move in 430 and 431, 19 your Honor.20 MR. HARRIS: No objection, your Honor.21 THE COURT: 430 and 431 then are admitted. 22 (Whereupon Plaintiffs' Exhibits 430 and 431 were 23 admitted into evidence.)24 Q (By Mr. Dreyer) Now, 430, different from 429, is 25 again ABC grouping, same order. But now take us through the 26 chart just so the jury has a sense or understanding of what 27 you're talking about. 28 A Well, again, it's the same teams we talked about before

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1 in exactly the same order, and it's for the period of 1995 2 through 2001. 3 Q Let me stop you just for a minute. 4 Let's go down to the bar chart at the bottom. What 5 does this mean? 6 A This is my use of the colors where I've used the 7 darkest -- if I'm going to have to identify these colors, I'm 8 in trouble. But I've used the darkest red to indicate the 90 9 to 100 percent season ticket to capacity level. And then 10 I've used a slightly lighter shade of red, or maybe an orangy 11 color to indicate 80 to 89 percent. And then the next 12 lighter shade is 70 to 79 percent. And then the next lighter 13 shade is 60 to 69 percent. And then finally, there's a less 14 than 60 percent.15 Q And black again means there is no team at that 16 location?17 A Right.18 Q Okay. Let's go to the top. Now, the first quadrant, 19 Group A, we have a variant of the colors, true?20 A There is variation in the colors, yes.21 Q Now let's go to Exhibit 431, please.22 Now, 431 is exactly the same except now that we have 23 the actual percentage numbers in the boxes, true?24 A Yes.25 Q Okay. Let's blow up A, please. And let's even break 26 it down more. Let's take the top five teams, let's say, as 27 an example. Can you do that? 28 Okay. Now, what does the percentage indicate to us?

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1 A Well, by season it indicates the number of season 2 tickets sold to the capacity of the stadium, that 3 relationship, that percentage. So for instance, the Chicago 4 Bears in 1995 sold 90 percent of their capacity in the form 5 of season tickets. 6 Q And that's capacity, that's the numbers that you have 7 on Exhibit 426 that demonstrates 1995 capacity, true? 8 A That would be the denominator, yes. 9 Q All right. Now, and that's where people have made the 10 commitment, sent in the money, season tickets?11 A Yes.12 Q All right. Now, let's look, for example, at the 13 Patriots in the year 2001. That number is 87 percent. What 14 does that tell us?15 A Well, it tells us that the Patriots in 2001 sold 87 16 percent of their capacity in the form of season tickets. 17 It's not -- it's in that 80 to 89 range, so it's got a 18 lighter shade of red or orange, or whatever you like to 19 describe it as, but it's not as hot as the red color.20 Q So again, if we looked at 428, which has the 2001 21 stadium capacity and you went down to the Patriots and you 22 have their capacity number, we're talking about 87 percent of 23 that capacity number, true?24 A Yes, it is true.25 Q All right. Now, let's go to the bottom group, the C 26 group.27 Now, this grouping has again percentages of season 28 ticket, and you've got the gradations so to speak, true?

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1 A Yes. 2 Q Oakland Raiders, 1995, the number is what? 3 A Seventy-six percent. 4 Q So you understand that that is a PSL market, correct? 5 A Yes. 6 Q You can't have a season ticket unless you have a PSL? 7 A Correct. 8 Q So in 1995 you would have 76 percent sold by way of 9 season tickets?10 A Yes.11 Q And 1996, with the expansion of the stadium, it would 12 be 61 percent of the 1996 capacity number, right?13 A That's correct.14 Q That would be on Exhibit 427 that demonstrates the 15 expanded capacity of the Raiders?16 A That's correct.17 Q All right. And then if you go across the bar, you can 18 see what has happened to the season tickets, true?19 A Yes, you can.20 Q All right. And in 19 -- in the year 2000 we have 40 21 percent, true?22 A We have 40 percent of their capacity sold as season 23 tickets, yes.24 Q All right. Now, this information you used to correlate 25 as it relates to sellings, true?26 A Yes.27 Q But it also -- when we get towards the end of your 28 exam, we can also look at this information for your purposes

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1 as it deals with whether performance is an issue relative to 2 sales, true, one of many things that you can look at, factors 3 to look at? 4 A Sure. 5 Q Let's look at Exhibit 432. What is Exhibit 432? 6 A Well, 432 just puts the sellout chart that we talked 7 about that was 420 -- 8 Q -- 9? 9 A Thank you. 429 next to the chart 430, which was the 10 season ticket base chart, so to make a visual comparison of 11 the two.12 MR. DREYER: I would move 432 in, your Honor.13 MR. HARRIS: No objection, your Honor.14 THE COURT: 432 is admitted.15 (Whereupon Plaintiffs' Exhibit 432 was admitted into 16 evidence.)17 Q (By Mr. Dreyer) Okay. So now we have basically 429 18 next to 430, true?19 A Yes.20 Q All right. And what, if any, benefit do you glean from 21 this chart on this issue of what effect season ticket base 22 has on sellouts?23 A Well, I think the visual comparison is somewhat 24 striking. Without doing any sort of hard statistical 25 analysis or anything too fancy, you can see that the teams 26 that are regularly selling out which are the dark red group 27 on the right chart, are the same teams that have the hot 28 season ticket base or the high season ticket base on the left

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1 chart. 2 And correspondingly, when the season ticket base is 3 anemic or pale, you can also see that those are the teams 4 which fail to sell out on any kind of consistent basis. 5 Q Now, let's look at Group B. 6 In Group B on the sellout side we have the Vikings 7 having red squares across the board as do the Dolphins, and 8 the Chargers almost have it. They just have one blank space, 9 true?10 A Yes.11 Q All right. Now, you did not put them in category A, 12 correct?13 A That's correct.14 Q And if we go to the season ticket basis for those 15 teams, can you explain to us, what in the season ticket basis 16 demonstrates why you didn't put them in Group A? 17 A Well, if you look at the -- if you look at this chart 18 that you've got up on there for the Group B teams, their 19 season ticket base was not particularly healthy, was not 20 particularly strong. And therefore, while they did manage to 21 sell out, there was really not, in my opinion, excess demand 22 for these teams, so I would not call them a Group A team.23 Q Okay. All right. Now, let me show you what's been 24 marked as Exhibit 433. 25 What does 433 represent and illustrate?26 A 433 is a graphical comparison of the average season 27 ticket to capacity ratio for those teams which sell out and 28 those teams which don't sell out. And I've indicated that

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1 the -- when you take the average across those teams which 2 you're selling out of season ticket to capacity, you find 3 that that number is 86 percent. So to say that again, teams 4 that are selling out on average have a very healthy season 5 ticket base, 86 percent on average. Non-sellout teams, on 6 the other hand, have an average of only 53 percent of their 7 season ticket base. 8 MR. DREYER: I would move 433, your Honor. 9 MR. HARRIS: No objection, your Honor.10 THE COURT: Admitted.11 (Whereupon Plaintiffs' Exhibit 433 was admitted into 12 evidence.)13 Q (By Mr. Dreyer) Now, in this graph that illustrates 14 for purposes of your opinions relative to correlation of 15 season ticket base to sellouts, how does that graph help us?16 A It begins to show us there is a statistical difference 17 between sellout teams and non-sellout teams in terms of the 18 season ticket base. And when you do the sort of harder 19 statistical modeling of this, you find that there is a very 20 statistically significant correlation between season ticket 21 base and the propensity to sell out, and also between 22 these -- the heights of these two bars. They're dramatically 23 different between sellout and non-sellout teams.24 Q This morning we also talked about blackouts. You 25 described blackouts as it related to selling out, right?26 A Yes.27 Q A team can sell out its stadium and effectively be 95 28 percent sold out from the game but still be blacked out; is

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1 that correct? 2 A That's correct. 3 Q How does that happen? 4 A Well, it happens because the league says you need a 5 sellout before 72 hours of the game time. And this is, in 6 theory, to induce people to actually go to the game. So you 7 need that sellout 72 hours prior to game time. So you can 8 get -- there can be a difference if the game is blacked out 9 or if it's not blacked out in the sense that a team can have 10 a blackout but in those last couple of days they can manage 11 to still sell their tickets and still achieve a sellout.12 Q What does Exhibit 435 illustrate in that regard? 13 A In 435, I've used the same groupings, the same ordering 14 teams, and I've looked at the same period from 1995 to 2001, 15 and I've shown the percentage of the games which were blacked 16 out during a season for these teams with red this time, 17 indicating a very low percentage of games blacked out.18 MR. DREYER: I would move in 435, your Honor.19 MR. HARRIS: No objection, your Honor.20 THE COURT: Admitted. 21 (Whereupon Plaintiffs' Exhibit 435 was admitted into 22 evidence.)23 Q (By Mr. Dreyer) This document, again, same layout. 24 Now, instead of talking sellouts, we're talking 25 blackouts, true?26 A Yes.27 Q Now, you also did 436 which is an exact replica of 435 28 but with some information as it relates to specific numbers,

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1 true? 2 A Yes. 3 Q What's 436? 4 A 436 is exactly the same chart as the one you're seeing 5 in 435 except the numerical information about the percentage 6 of the games which were blacked out is added to the chart. 7 Q So instead of going by way of a gradation, you're going 8 by the actual percentage relative to teams' percentage of 9 time being blacked out?10 A That's correct.11 Q That's what the percentage means?12 A Yes.13 MR. DREYER: I would move 436 in, your Honor.14 MR. HARRIS: No objection.15 THE COURT: Admitted.16 (Whereupon Plaintiffs' Exhibit 436 was admitted into 17 evidence.)18 Q (By Mr. Dreyer) Now, let's put 436 up, and let's go 19 to the Group C where the Raiders are. 20 A Okay.21 Q Now, this shows us in terms of blackouts for the 22 Raiders. This is again based upon statistical information 23 you have as to the Raiders, right?24 A Yes.25 Q In terms of number of times during the regular season 26 they suffered a blackout, right?27 A Yes.28 Q We know that statistically they had more than 95

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1 percent of the capacity sold out in 1995 when they had the 2 small stadium, the 50,000 plus stadium, right? 3 A That's correct. 4 Q All right. So we would look at that, and the number 25 5 percent would mean what? 6 A Twenty-five percent would mean a quarter of their home 7 games in the regular season were blacked out or two games 8 were blacked out. 9 Q All right. So that's two out of the eight, true?10 A Yes.11 Q And these numbers, all of the numbers you've done and 12 all of your analysis, Dr. Dubin, have all been regular season 13 games, correct?14 A That's correct.15 Q The sellouts, the blackouts, the season ticket base, 16 it's all been regular season, eight games?17 A That's correct.18 Q No playoff games?19 A Well, I have considered playoff information in some --20 Q I'm saying in the charts. 21 A Oh, no. I'm sorry. There is no playoff information in 22 these charts.23 Q Any preseason information in these charts?24 A No.25 Q All right. Now, in terms of -- if you go across, the 26 percentage would tell the jury what percentage of the games 27 were blacked out during the course of the season, true?28 A That's what it shows, yes.

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1 Q All right. So for example, 2001, that would be the 2 season where they ended up winning their second Western 3 Division Conference, half the games were blacked out? 4 A That's correct. 5 Q All right. Now, Dr. Dubin, I want to show you Exhibit 6 438. What is Exhibit 438? 7 A Exhibit 438 is a graph of the season ticket base. I 8 labeled it "Season Ticket Sales as a Percentage of Capacity 9 for the Period 1995 Through 2002."10 Q Okay. What does it tell us?11 A It tells us the -- it shows the heights of the season 12 ticket base for what I would call the A teams, the excess 13 demand teams, and also compares that to the season ticket 14 base percentage for the Raiders over time.15 Q Okay. Dr. Dubin, if the representations that had been 16 made to the Raiders before August 7th, 1995, had been true, 17 do you have an opinion as to whether that would have been an 18 excess demand situation?19 A I certainly think it's consistent with excess demand, 20 yes.21 Q That's consistent with what Mr. Howell testified as the 22 marketing, that it was an excess demand situation?23 A Yes.24 Q Now, if the Raiders had an excess demand situation, 25 they would then be in that A group, true?26 A They would, because had the representations been true, 27 they would have had about 85 percent of their capacity sold 28 in the form of season tickets.

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1 Q All right. Now, if the representations had been true 2 and the PSLs in 1995 had sold out, do you have an opinion as 3 to whether the 1995 season would have sold out relative to 4 its season ticket base? 5 A Yes. 6 Q All right. What's your opinion? 7 A That it would have sold out with respect to season 8 tickets as well. 9 Q All right. If the representations had been true about 10 the excess demand as to 1996, and assuming Mr. Howell's 11 testimony that 1995 and 1996 were excess demand situations, 12 did you have an opinion as to whether, if the representations 13 were true, whether the 1996 season would have sold out?14 MR. HARRIS: Object to the question as compound, 15 complex.16 THE COURT: This is compound. Sustained. Rephrase the 17 question.18 MR. DREYER: Yes, your Honor.19 Q Dr. Dubin, if -- I want you to assume, if the 1996 20 season has excess demand and if the 1996 PSLs sell out, does 21 that equate to a sellout for the 1996 season?22 A It would be highly likely that it would, yes.23 Q What do you base that opinion on?24 A Because I've done a study of the relationship between 25 the season ticket base and the likelihood of a sellout, and 26 we saw it in terms of those colors, and when you have a high 27 season ticket base, a very strong season ticket base, the 28 likelihood of a sellout is also very high.

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1 Q Now, if you have -- again, based upon your background, 2 your training and your experience and your workup in this 3 case, if you have consecutive year sellouts of your capacity, 4 what effect does that have on future sellouts? 5 A Well, as I mentioned, the theory tells us that excess 6 demand will persist from season to season. That's what the 7 theory tells us. I've actually measured the persistence of 8 the excess demand and found that with very high probability, 9 approximately 95 percent, there's a likelihood that if you 10 have excess demand in prior seasons, you'll have excess 11 demand again. Or to phrase it differently, in the presence 12 of excess demand, sellouts will be followed by other 13 sellouts.14 Q In this situation, if you have sellouts as you describe 15 in 1995 and 1996 of the capacity -- and you're taking into 16 consideration there the PSLs, the season tickets, the suites, 17 the full capacity where they generate revenues from seat 18 products, true?19 A Yes.20 Q If you have a sellout in 1995 and 1996, do you have an 21 opinion as to how that will affect sellouts at the Oakland 22 Coliseum, assuming those representations were true, through 23 the length of that lease, through 2010?24 A Yes.25 Q What's your opinion?26 A Well, my opinion is that in the situation you 27 described, there would have been excess demand in 1995 and 28 1996, and based on my statistical modeling, the excess demand

page 5205




1 would carry forward into future seasons. And in fact, the 2 likelihood that you would have a sellout for many seasons was 3 quite high. 4 Q All right. In terms of if you look at -- 5 Let's put up Exhibit 434, please. 6 In your review of all of the materials relative to your 7 project in this case, Dr. Dubin, have you found anybody who's 8 done as detailed a study, survey of information and 9 obtaining of information regarding demand in the NFL out 10 there like what you've done in this case?11 A No.12 Q I mean, literally what you've done in this case in 13 terms of your retention and consulting with us in this case 14 is the type of thing that generates papers in peer review 15 journals, true?16 A Yes.17 Q Now, in terms of the 434, does that demonstrate the 18 type of demand that you see, excess demand situations with 19 football teams?20 A 434? 21 Q Yes, sir. That's the one that does the historic 22 sellouts, '82 to 2001?23 A I'm sorry. It's up on the screen. 24 Q Yes. 25 A Could I have the question one more time.26 Q Does 434 demonstrate the type of performance you'll see 27 in excess demand circumstances for teams selling out in the 28 fashion you just described over here, a 19-year time frame?

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1 A Yes. Many of these teams are in excess demand as we 2 noticed before, and you can see that sellouts repeat for long 3 periods of time. I had the -- I had the data actually to 4 test that going all the way back to 1990 in a detailed 5 fashion, but prior to 1990, I didn't have season ticket 6 information. 7 Q And again, you did have some seasons that you didn't 8 have any information of in terms of performance, true? 9 A Yeah. Before 1990, I lacked consistent data from year 10 to year, so I didn't even try to test it.11 Q Okay. Let's put up Exhibit 431, please. Let's bracket 12 A, Group A.13 These are the group of teams that in your opinion 14 demonstrate excess demand in the NFL, true?15 A Yes.16 Q Were you aware that the -- for the Panthers in 1995 17 played in a temporary stadium as opposed to a stadium that 18 was ultimately built for them. Do you know?19 A I don't know. I might have known that.20 Q If they did, in fact, play in a temporary stadium, that 21 might explain why they didn't sell out for that year?22 A It might because I found, for instance, that moving to 23 a new or substantially remodeled stadium increases the 24 likelihood further of selling out, so what you're asking is 25 quite consistent with what I found.26 Q All right. Well, when we look at 431, does this 27 demonstrate what you've told us, that in terms of 28 performance, that sellouts, consecutive sellouts for two

page 5207




1 years result in ongoing sellouts each year thereafter? 2 A Yes. This is also consistent with that idea. 3 Q All right. Now, let's look at Exhibit 438 that I gave 4 to you. This is the document that demonstrated what Group A 5 teams have done from 1995 to 2001 in terms of season ticket 6 sales as a percentage of capacity, true? 7 A Correct. 8 Q And you have on here the actual performance by the 9 Raiders since 1995 all the way to 2002, true?10 A That's correct.11 Q We're able to get you the 2002 data or some segment of 12 it?13 A I did have access to Raiders' box office data for 2002, 14 so I could add 2002 data, yes.15 MR. DREYER: I would move 438 in, your Honor.16 MR. HARRIS: No objection, your Honor.17 THE COURT: 438 is admitted. 18 (Whereupon Plaintiffs' Exhibit 438 was admitted into 19 evidence.)20 Q (By Mr. Dreyer) All right. Now, what does this 21 document tell us relative to comparing excess demand versus 22 what happened with the Raiders?23 A Well, it starts off by showing the comparison between 24 the season ticket to capacity for A teams and for the 25 Raiders. You notice that the Raiders start off at only 72 26 percent, in fact, of their capacity in the form of season 27 tickets and that declines over time. Had excess demand been 28 present and the season ticket base been as high as

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1 represented, that gray bar in 1995 would have been almost to 2 the level of the average of other A teams. In fact, it's 3 reasonable to say the Raiders would have been an A team in 4 that case. 5 Q That demonstrates what is the average performance of 6 the teams in Group A which have excess demand in your 7 opinion? 8 A Yes, where we define performance in terms of season 9 ticket to capacity, yes.10 Q All right. Then you see 2001 -- rather 2000, 2001 and 11 2002 in terms of actual season ticket sales, correct?12 A I see that.13 Q You're mindful that those are the three years that the 14 Raiders won their division three consecutive years, correct?15 A Yes.16 Q All right. Now, I want to show you Exhibits 439 and 17 434. What are these documents? 18 Let's talk about 439 first. What's that?19 A Well, I mentioned earlier that in order to test the 20 importance of performance on ticket sales that I used a 21 regression model, and I explained what a regression model 22 was.23 439 is a picture of how the actual tickets sold in the 24 NFL evolved between 1995 and 2001, and that's in a pink line, 25 and then I've put on top of that a prediction of what my 26 econometric or statistical model for the NFL said the ticket 27 sales would be if you kind of put blinders on and not looked 28 at actual sales, but just the factors that I used in my

page 5209




1 model. 2 Q Okay. Is this an example of a regression model? 3 A No. 4 Q What does this demonstrate -- I mean, what aspect of 5 your opinions does this identify or address for us or 6 illustrate? 7 A This is an illustration of the explanatory power of the 8 regression model. It's an explanation of how well the 9 regression model does in terms of prediction.10 Q So the regression model, you've performed it and now 11 you've plotted out what it would predict, correct?12 A Yes, that's correct.13 Q And you also plotted out what was actual to see whether 14 the regression model is reliable?15 A That's correct.16 Q The regression model was what you did in terms of 17 reaching your opinions that you've been telling us through 18 the course of this afternoon?19 A With respect to performance, that's correct.20 MR. DREYER: All right. I would move in 439, 21 your Honor.22 MR. HARRIS: No objection.23 THE COURT: Admitted.24 (Whereupon Plaintiffs' Exhibit 439 was admitted into 25 evidence.)26 Q (By Mr. Dreyer) Okay. Let's go ahead and put 439 on 27 the board.28 Now, we're not economists, we're not mathematicians,

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1 and we're not your students at Cal Tech, okay? 2 Can you take us through this -- and if you need to get 3 down, I can probably find you a pointer. I don't have a 4 laser pointer for you, but something so you can illustrate to 5 the jury what you're trying to show as it relates to actual 6 versus predicted ticket sales. 7 A Let me try just by describing it visually. The pink 8 line shows the actual total number of tickets sold in the 9 National Football League between 1995 and 2001. So if you 10 look at the first number, 1995, it says 14 million total 11 tickets, approximately. A little over 14 million tickets 12 were sold.13 Q Let me stop you.14 Jeff, can you just blow up the graph part so we can get 15 a little better resolution on that, please. Thank you.16 I'm sorry, Dr. Dubin. 17 A That's okay. So if you -- I should have brought my 18 glasses. Fourteen million is the 1995 number where the 19 little pink square is slightly above that line. That's the 20 total number of tickets sold for the regular season for the 21 entire NFL in 1995.22 Q All right. Take us through the pink line. 23 A So the pink line is then what happened the next year. 24 You notice in 1996 the total number of tickets fell. I'm not 25 sure why, but it did. And then it starts back up again 26 growing through '97 and '98, and then as we get into 1999, 27 we're up above 15 million. So 1999 compared to 1995, another 28 million tickets were sold.

page 5211




1 Q In terms as an economist, the NFL, does it follow 2 economic trends, or does it seem to be a little bit 3 inflationary or recessionary-proof? 4 MR. HARRIS: Objection, lack of foundation. Leading. 5 MR. DREYER: Let me rephrase it. 6 THE COURT: I think the question is too broad and 7 vague. 8 Q (By Mr. Dreyer) Based upon your work in this case, 9 Dr. Dubin, does demand -- based upon this actual line, has 10 demand for the tickets been essentially increasing over time 11 since 1996?12 MR. HARRIS: Objection. Still no foundation. Still 13 vague.14 THE COURT: You're asking what this line shows?15 MR. DREYER: Yes, sir.16 THE COURT: This is in, so the objection is overruled.17 THE WITNESS: The line shows that ticket sales in 18 aggregate have increased. There is an increase in trend in 19 ticket sales.20 Q (By Mr. Dreyer) Okay. Now, the dark line or the black 21 line or blue line, whatever it is, I can't tell.22 That's the predicted line, true?23 A Yes.24 Q Okay. Now, how did you -- what did you do -- this is 25 something you did kind of in the blind, right?26 A Well, the predictions are done in the blind in the 27 sense that I amassed many factors to explain ticket demand, 28 just like we talked about this morning, where you study the

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1 literature, you collect the information, you try to figure 2 out what makes sense, what kind of factors would influence 3 ticket demand, and I came up with a set of factors that 4 affected ticket demand. 5 Q Okay. Can you tell us what factors you looked 6 at -- this is in your regression model, right? 7 A Yes, that's correct. 8 Q Can you tell us -- tell the jury what factors you 9 played or put into your regression model to give us your 10 predicted analysis?11 A Yes. I looked at, for example, the price of the 12 ticket, the average price of the ticket at the stadiums. I 13 looked at the winning percentage of the home team. So every 14 point in my data analysis, every observation in my data 15 analysis of the NFL represented a contest between two teams. 16 There was a home team and a visiting team, and you don't want 17 to count them twice, just once.18 So with respect to the home team, I looked at their 19 home team winning percentage as of the last game played. So 20 that would be like looking at the newspaper the morning of 21 the game and looking at what the box office said they had 22 done up to that point in the standings.23 I also looked at the performance in terms of winning 24 percentage as of the last game played for the visitor. I 25 looked at a few other factors, like whether or not it was a 26 night game that was at issue, or whether or not it was a 27 Monday night game, because I think that Monday night games 28 act differently than other games.

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1 And I also looked at whether it was raining. I looked 2 at whether the Raiders were the team at issue. And I also 3 looked at some racial demographics for the percentage of the 4 metropolitan area of certain racial groups. 5 And I also considered the capacity of the stadium 6 relative to the population in the area in which people were 7 coming. The idea there being if you had a large population 8 relative to the capacity, you would have more buyers so to 9 speak for the tickets, and we should expect the ticket demand 10 to go up.11 Q Now, did you weight these factors in some way or are 12 they basically all just taken together?13 A Well, that's an interesting question, as experts always 14 like to throw in once in awhile. I don't weight it, but the 15 regression analysis provides me the weights in terms of how 16 important the factors are or what factor -- the influence of 17 each factor on ticket demand.18 Q Now, when you overlap these two, what does this tell 19 you when you compare your prediction versus what was actual 20 performance?21 A Well, the predicted line comes from -- it's this 22 experiment. The predicted line comes from -- you tell me 23 where we are in time, the racial composition of the specific 24 demographic area that the game took place, what the contest 25 percentages are, the home team winning percent, the visiting 26 team winning percent, whether it was raining that day, the 27 size of the stadium relative -- the capacity relative to the 28 population, whether it's a night game or Monday night game,

page 5214




1 you tell me all of those things, and I will make a prediction 2 from the model of how many tickets I would expect to be sold 3 at that game. And the blue line is a -- is the aggregate 4 prediction for the entire NFL. 5 Q And this would tell you what relative to your 6 regression model as to its degree of accuracy? 7 A Well, the fact that these track together pretty well, 8 there's some gaps there, but they track together rather well 9 suggests that the regression model is doing what it's 10 supposed to be doing.11 Q Okay. 440. What's 440?12 A 440 is exactly the same type of graph, but I also 13 looked at a model for attendance rather than ticket sales.14 Q Okay. Why?15 A Because attendance is a different creature than ticket 16 sales. Ticket sales can occur at the beginning of the season 17 in the form of season tickets. Attendance also has the 18 property that it counts comps, free tickets given away to 19 people. So attendance is the actual bodies that are in the 20 stadium warming seats as opposed to those people who made 21 financial transactions at some time.22 Q So 439 is sales, so that's the financial transaction, 23 the one we see up there, correct?24 A Yes.25 Q 440 is the actual -- just the crunching of attendance 26 numbers, true?27 A Yes. It's the concept of a person walking through the 28 turnstile, and they're counting that.

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1 Q And you do the same thing, you do actual versus 2 predicted, correct? 3 A That's correct. 4 Q Again, look at the same grouping of factors trying to 5 predict how it will affect attendance by way of your 6 regression model? 7 A That's correct. 8 Q You want to do these to determine whether your analysis 9 and how you're coming to your opinions is accurate relative 10 to its degree of predictability, true? 11 A I try to assess the accuracy.12 MR. DREYER: I would move 440 in, your Honor.13 MR. HARRIS: No objection, your Honor.14 THE COURT: Admitted.15 (Whereupon Plaintiffs' Exhibit 440 was admitted into 16 evidence.)17 Q (By Mr. Dreyer) Now, how did we do here?18 A We do a little better.19 Q What does the actual track for us?20 A The pink line is tracking the actual total number of 21 people again that warmed seats, like we're doing right now, 22 at NFL contests between the period 1995 through 2001.23 Q And what does it tell us about the demand, at least as 24 it relates to people wanting to attend games from this period 25 of time in '96 through 2001?26 A Well, there was an increase that corresponded to the 27 ticket increase.28 Q So the two, 439 and 440 match up in that regard

page 5216




1 demonstrating the demand that the American public has for 2 football is continuing to grow? 3 A That's correct. 4 Q All right. And that's important to know relative to 5 how different teams are doing as to whether they're staying 6 with the market? 7 A That's correct. 8 Q All right. And how did your predicted analysis, your 9 regression model play out compared to the actual?10 A Well, I think it's visually quite striking. I think it 11 does a rather nice job.12 Q Now, 442. We talked about -- I mean, in your analysis, 13 one of the things that you wanted to address was what affect 14 performance had in the NFL, right?15 A Yes.16 Q And that's something that was discussed. We'd like to 17 have you look at it and address it, whether it's a factor or 18 not, true?19 A It's something I wanted to look at.20 Q Even before we talked about it, you were looking at it?21 A That's correct.22 Q That is something that Mr. Harris spent some time with 23 you on relative to your deposition, true?24 A I can't recall that specifically. I think so.25 Q All right. But it's certainly something you dealt with 26 in your report?27 A Oh, for sure.28 Q All right. Now, in looking at performance and effect

page 5217




1 of performance on ticket sales, how did you set about that to 2 test that concept to determine whether it was a big factor, 3 no factor, small factor, what did you -- how did you set 4 about that task? 5 A Well, I allowed the regression to provide the weights 6 to each of the factors in terms of their best correlations 7 and fits to the tickets or the attendance that I was 8 measuring. And that part's a little hard to explain, but the 9 purpose of the regression analysis is to isolate the other 10 factors and give you an estimate of how important one factor 11 is. In this case, it would be the performance factor.12 Q Okay. And by performance, we're talking now about not 13 ticket sales per se or sellouts or blackouts, now we're 14 talking about how does wins equate to people buying tickets?15 A Buying tickets and whether or not they go to a game.16 Q Okay. And that would correlate with this issue of 17 whether they want to buy season tickets or not?18 A It does.19 Q All right. Now, what opinions did you reach relative 20 to this issue?21 A Well, I quantified the performance effect and concluded 22 that it was surprisingly small, but at a level that was 23 completely consistent with what other published studies had 24 said it was.25 Q So one of the things you did, this is something that 26 had been addressed before, had it not, in terms of some 27 articles on the topic of whether performance drives sales?28 A Yes.

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1 Q All right. And based upon your analysis and your 2 evaluation of the data you had, do you have an opinion as to 3 whether the performance of the team in terms of wins and 4 losses equates to being a factor relative to whether they buy 5 tickets to go to games? 6 MR. HARRIS: Objection. Vague and ambiguous. 7 THE COURT: Overruled. 8 THE WITNESS: Well, it is a factor. 9 Q (By Mr. Dreyer) Okay. What kind of a factor?10 A It's a factor that shows as a team's performance 11 increases, so does the amount of tickets that people buy. 12 It's a factor which shows that as a team's performance 13 increases, fans are more likely to attend games. But it's 14 also a factor for which the magnitude of that effect is 15 actually not that big.16 Q What do you mean "not that big"?17 A Well, I mean that -- let's consider a hypothetical, 18 perhaps, where we had a team that was 50/50, eight wins and 19 eight losses. I can now ask the regression model to tell me 20 what would have happened to a team that had everything else 21 the same, if somehow they were able to win 25 percent more 22 games, in other words, going from an eight and eight team to 23 a ten and six team.24 Q How does the regression model do that, again, 25 understanding we're not at Cal Tech, understanding we're not 26 economists, how does that work?27 A Well, the regression model has factored out for us how 28 important performance is giving us a link between performance

page 5219




1 as a magnitude to ticket sales. So now I'm able to simulate 2 the change in performance as it affects ticket sales. If we 3 go back to the example I did this morning of the babies -- of 4 the children's weights and their heights, this would be like 5 a doctor answering the question from a patient, if my son or 6 daughter were to grow another couple inches in the next year, 7 what would you expect their weight to do if the kid's normal? 8 Q Okay. So you're singling in on this one factor in the 9 regression model to make that predictive or tell us the 10 answer?11 A Right. And the doctor at that point is going to be 12 looking at, well, the kid's a boy, not a girl; the child is 13 11 years old, and you're talking about next year, so maybe 14 we'll look at the chart at age 12, but they can answer that 15 question as it's posed to them.16 Q Now, you have in front of you 442, right?17 A Yes.18 MR. DREYER: I would move 442 in, your Honor.19 MR. HARRIS: No objection, your Honor.20 THE COURT: Admitted.21 (Whereupon Plaintiffs' Exhibit 442 was admitted into 22 evidence.)23 Q (By Mr. Dreyer) Let's put 442 up.24 This shows what you just talked about relative to this 25 concept of everything else remains the same but you're 26 magically through your regression model going to give them 27 two more wins and two less losses?28 A I don't know if I would agree with the magical part,

page 5220




1 but yes, that's what I do. 2 Q All right. Let me show you Exhibit 443. 3 What does 443 do? 4 A 443 illustrates for the same 25 percent increase in a 5 home team's winning percentage how different categories of 6 teams react in terms of increases in their ticket sales. For 7 example, I, in that chart, look at all of the NFL teams, and 8 then I look at the A teams or the A group teams, which are 9 those excess demand teams, and then I look at the C group, C 10 group teams, which were the poor performers in terms of 11 sellouts having the worst teams in the league in that 12 respect, and I finally look at a predicted increase for the 13 Raiders based upon the modeling of the Raiders.14 Q Is that what you show in your graph of 443?15 A Yes. I show for the same 25 percent increase how that 16 would translate according to different regression models for 17 each of these groups for a predicted increase in ticket 18 sales.19 MR. DREYER: I would move 443 in, your Honor.20 MR. HARRIS: No objection.21 THE COURT: Admitted. 22 (Whereupon Plaintiffs' Exhibit 443 was admitted into 23 evidence.)24 Q (By Mr. Dreyer) Okay. Now, there's 443, but before we 25 go to that, I want to put up 429, please. I take that back. 26 Let's put up 430.27 Now, this is the match up with the sellouts with the 28 season ticket base, right?

page 5221




1 A Well, no. This is a picture of just of season ticket 2 base. 3 Q Yeah. And I was going to get there, and you got ahead 4 of me there. 5 432, let me put that up. This is the match up of 6 sellouts with season ticket base, right? 7 A That's a match up, yes. 8 Q Now, this we see the gradations or the coloration 9 differences under the season ticket base that kind of tells 10 us the data underneath the sellouts, true?11 A In the season ticket base, you are looking underneath 12 the sellout, yes.13 Q Now, if in the A group you have the strong sellout 14 base, that limits the number of seats that are out there 15 available for people to buy, true?16 A Yes.17 Q And if you have a team in Group C where they don't have 18 much of a sellout base, there's lots of tickets for people to 19 walk up and buy?20 A That's correct.21 Q So picking out your best cherries, you can do that with 22 Group C? 23 A You certainly have more of an opportunity with Group C 24 because tickets are not tied up as season tickets.25 Q Now, in terms of if season tickets are sold out. Let's 26 say I want you to assume for me, let's look at these teams 27 that have the sellouts with the high level of excess demand, 28 person buys their seats in April, they're not going to have

page 5222




1 this decision-making process whether they want to buy a 2 preseason ticket or the December game to see whether they 3 make the playoffs. They have already made the decision to 4 buy, correct? 5 A That's correct. 6 Q Now, if we go to Group C, though, every week a decision 7 could be made by fans, right? 8 A For a very high percentage of the tickets, yes. 9 Q That's great for the fans, true?10 A It's good for the fans, yes.11 Q In terms of economically as a business, as an 12 economist, which is more desirable for a business?13 A If it were my business, I would rather have all of the 14 seats presold.15 Q All right. Now, in terms of performance with Group A, 16 does performance -- in terms of comparing that factor, is17 performance a factor in Group A versus Group C? 18 A Yes, it was still a slight factor.19 Q Okay. That's what we see on Exhibit 443, right?20 A Yes.21 Q All right. Let's put 443 on.22 Now, "factor" to you as an economist and a scientist 23 and mathematician is any number that's above zero becomes a 24 factor, true?25 A Any number that's above zero which is statistically 26 significant I would add, I would consider a factor, yes.27 Q So one percent is a factor?28 A If it's statistically significantly different from

page 5223




1 zero, yes. 2 Q Take us through Exhibit 443 as to effects of team 3 performance on ticket sales with the different categories 4 that we have seen on your graphs and as it relates to the 5 Raiders, please. 6 A Well, the green bar on the very left is the 25 percent 7 increase in the home team's winning percentage. 8 Q Okay. That's where you've taken away two losses and 9 given them two wins?10 A That's right.11 Q Okay. 12 A And that's, by the way, not all that easy to do. It 13 turns out by a distribution of wins and losses in the league. 14 But let's say you could do that. The league averages by the 15 way around 50/50 when you look across all of the teams. It 16 sort of balances out that way. 17 And it implies this 25 percent increase in the home 18 team's winning percentage that there is a 1.83 percent 19 increase in the ticket sales. If you look at all NFL teams, 20 there's a 1.8 --21 Q Hold on. Stop just for a second. So NFL-wide, 22 performance affects, in your regression model, affects sales 23 for the NFL teams for just a little bit under two percent?24 A That's correct.25 Q Pretty small number?26 A At the 25 percent to win increase level, yes.27 Q Okay. You would agree, would you not, that's a small 28 factor?

page 5224




1 A I would call it -- the magnitude of the effect is quite 2 small. 3 Q Now let's look -- you did Group A teams, did you not? 4 A Yes, I did. 5 Q Okay. What was the increase in ticket sales for 6 Group A? 7 A It's even smaller. It's 0.23 percent, less than 1 8 percent, less than a half percent. 9 Q What do you attribute to that to based upon your 10 analysis?11 A There's not much room for the Group A teams to move in 12 terms of a performance effect.13 MR. DREYER: Your Honor, this might be a good time to 14 take a break. We're at a quarter to 3:00.15 THE COURT: We usually go until 3:00.16 MR. DREYER: You want me to go until 3:00. That's 17 fine, your Honor.18 THE COURT: Unless you have some reason to break at 19 this time.20 MR. DREYER: I don't. Just we're going fast. I didn't 21 want to wear Tara out. 22 Q Okay. Group C. You looked at Group C, did you not?23 A Group C were these poor teams again that were the dogs 24 of the NFL.25 Q Right. 26 A And the performance effect on those is not very large, 27 either. 28 Q Were you surprised by that?

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1 A No, because the performance effect was about the same 2 magnitude as the other published literature it found. 3 Q All right. And did you do an analysis as it relates to 4 the Raiders? 5 A I did. 6 Q And what did that indicate to you? 7 A It indicated a larger effect at 3.1 percent. 8 Q Okay. Still pretty small percent? 9 A Very small.10 Q All right. What did you attribute -- why is it that 11 there would be a three percent impact, however you want to 12 characterize it, why would there be this three percent 13 increase in ticket sales for the Raiders based upon your 14 analysis and the materials you reviewed?15 A Well, they had the most -- really low season ticket 16 base, terribly anemic, excuse me, tiny season ticket base, 17 not the worst, but really low, and I think that in that case, 18 performance can have a larger effect because -- 19 Q Why?20 A Because more residual tickets or more tickets are 21 available, the fans are cherry picking, and they will react 22 more to increases in performance at the margin.23 Q Okay. Because hey, if the team is going to go to a 24 game with playoff implications and they're not sold out, 25 season tickets are available, right?26 A Yes.27 Q Does a team with a high-season ticket base, whether 28 it's achieved through history or through a PSL commitment,

page 5226




1 does that insulate the team from variance related to 2 performance? 3 MR. HARRIS: Objection, compound and complex. 4 THE COURT: Sustained. 5 Q (By Mr. Dreyer) Based upon your analysis and your 6 review of this information, Dr. Dubin, do you have an opinion 7 as to whether a season ticket base insulates a team as to 8 ticket sales being related to performance? 9 A Yes, I do have an opinion about that.10 Q What's your opinion?11 A The season ticket base when it's quite strong is an 12 insulator against performance effects. There's probably not 13 a whole lot of room to go up, but there's also not much drop 14 going back down.15 Q Okay. Now -- and the basis for your opinion in that 16 regard, what's your basis?17 A My statistical analysis of Group A type teams that 18 showed that this effect was really small.19 Q Now, you also did an analysis of ticket prices, did you 20 not?21 A I did.22 Q Okay. And why did you do that?23 A In this case, because you asked me to.24 Q All right. It's a good reason. And what was the 25 purpose of this analysis?26 A The purpose was to look at the average annual change in 27 ticket prices, how much ticket prices had been going up for 28 the NFL and for these Group A teams, the teams that were in

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1 excess demand, and to quantify how much Group A teams or 2 excess demand teams were able to increase their prices. 3 Q All right. And over time have these Group A teams been 4 increasing their prices? 5 A Oh, yes, very much. 6 Q Do you have an opinion as to why it is the Group A 7 teams can increase their prices? 8 A Because they're in an excess demand, and because 9 according to the Becker theory, among other things, when 10 you're in excess demand and in the right spot on the demand 11 curve, as we call it, price increases are possible.12 MR. DREYER: All right. I would move in 444, 13 your Honor.14 MR. HARRIS: No objection.15 THE COURT: Admitted.16 (Whereupon Plaintiffs' Exhibit 444 was admitted into 17 evidence.)18 MR. DREYER: Let's put 444 up.19 Q Now, let's go through this. These bullet points you 20 have here, bullet point number one, "Price increases are 21 sustainable if stadium is filled to capacity."22 What do you mean by that?23 A Well, as a stadium begins to get full, there is a 24 bandwagon effect that is taking place. It's like the theater 25 situation I talked about earlier, seeing the movie in an 26 empty theater versus seeing a movie in a crowded theater. 27 It's the same idea as the difference between listening 28 by yourself to a concert or being at a rock concert with lots

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1 of other rowdy fans around you. Football works that way, 2 too. If you are in an excess demand situation, the bandwagon 3 effect takes over, and as the stadium is filled to higher and 4 higher levels of capacity, the noise level, that's literally 5 what it's called in economics, the noise level rises, and 6 people's valuations for that situation increase. 7 Q Okay. 8 A And in that case, it's possible to pass along higher 9 price increases.10 Q In fact, is that what's happened in the NFL?11 A It's happened in the NFL for Group A type teams, yes.12 Q Second bullet point, "NFL average annual change in 13 ticket prices was 8.8 percent."14 What time frame are we talking about?15 A It's the time frame from 1995 to 2001.16 Q Okay. So this is for Group A teams, the excess demand 17 teams?18 A No. The second bullet point refers to actually all NFL 19 teams.20 Q So this is an average across the board?21 A That's an overall average. It's every single NFL team.22 Q So for example with the Raiders, if they haven't raised 23 their ticket prices between '95 and 2001, they're basically 24 at zero. We have other teams that are raising their prices 25 considerably higher to reach that average, right?26 A That's correct.27 Q Now -- and this is an annual average increase every 28 year?

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1 A Yes, it's every year. It's way, way in excess of 2 inflation. 3 Q Now, the teams in the Group A, are they the ones that 4 are driving this average price up? 5 A I would say so. There's a lot of excess demand in the 6 NFL. It's been characterized that way. The Group A teams 7 have had a strong ability to raise prices, but there is 8 plenty of other price increases I think in the Group B as 9 well.10 Q So even teams that don't have the high season ticket 11 base because of demand are able to do this annual increase, 12 true?13 A There's some of that, yes.14 Q Okay. Bullet point three, "Group A teams had 8.9 15 average annual ticket price increase."16 Is this referring just to that group in its annual 17 increase?18 A Yes.19 Q Okay. So if the average is 8.8 and Group A is 8.9, 20 does that tell us what's happening with Group B and Group C 21 even when they don't have excess demand? 22 A They're in about the same. They have to be about the 23 same level.24 Q Bullet point four, "Raiders' rate of price increase 25 was effectively zero between '96 and 2001."26 What do you base that on?27 A Looking at the data for the price changes for the 28 Raiders in terms of tickets.

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1 Q Obviously below average. 2 A Zero is pretty much below the average, yeah. 3 Q Now, in terms of performance, based upon your 4 background, your training and experience, based upon the 5 analysis that you have done in this case, and looking at 6 ticket prices and all of the different myriad of things that 7 you have discussed and performance, does, in your opinion, 8 the Raiders' performance on the field explain this ticket 9 sale problem they're having?10 A I don't think so, no.11 Q What do you base that opinion on?12 A Because I've said that the performance effect even for 13 the Raiders is very small. But for other NFL teams even in 14 their peer group, that group of other teams like them, that 15 performance effect is estimated to be very small, too. So 16 performance can't really be the explanation for their 17 troubles.18 Q Dr. Dubin, based on your background, training and 19 experience and based upon this analysis that you have done, 20 do you have an opinion as to whether the Raiders can, whether 21 it's fair or unfair, do you have an opinion as to whether 22 they can ever by on-field performance put themselves in a 23 position of excess demand seeing what's happening to them 24 historically since 1995?25 A I have an opinion.26 Q What's your opinion?27 A I don't know about "ever," but I think it's unlikely, 28 and I think this last season is a very good example of that.

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1 Q What do you mean? 2 A Well, the Raiders did about as well as they could other 3 than winning that last contest that was on TV in January when 4 they were at the Superbowl, and yet my understanding is that 5 they've managed already this year to sell an additional 500 6 season tickets for next year, not very many more. 7 MR. HARRIS: All right. Objection. Move to strike the 8 last factual statement as hearsay and lack of foundation. 9 THE COURT: Sustained. Stricken. 10 Q (By Mr. Dreyer) Dr. Dubin, you've gotten 2002 sales 11 statistics?12 A I have 2002, but I don't have 2003.13 Q Understood.14 In terms of 2002, that would follow-up the team in 2000 15 winning their division, correct?16 A Correct.17 Q 2001 winning their division again?18 A Correct.19 Q So in terms of on-field performance, winning your 20 division two years in a row, did it affect in any substantial 21 fashion their ticket sale performance?22 A It actually did. It didn't do much with their season 23 ticket performance, though.24 Q Let's talk about season ticket performance. What 25 effect did it have on season ticket performance? And let's 26 look at Exhibit -- would it be 438?27 A It would be.28 Q Okay. Let's put 438 up, please.

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1 Understanding they won their division in 2000 and 2001, 2 what effect did it have on its season ticket sales for 2002? 3 A Not very much of an increase over 2001, maybe no 4 increase. 5 MR. DREYER: Your Honor, this is a good time to take a 6 break. 7 THE COURT: You really want to take a break this 8 afternoon, don't you? It's five minutes early. You must 9 have a good reason. Let's take a 15-minute recess. Observe 10 the rules. 11 (Recess.)12 ---oOo---13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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Dubin Testimony - PM Part II (pp 5234-5281)page 5234

1 WEDNESDAY, MAY 21, 2003 2 AFTERNOON SESSION 3 ---oOo--- 4 The matter of the OAKLAND RAIDERS, a California Limited 5 Partnership, and A.D. FOOTBALL, INC., a California Corporation 6 versus OAKLAND-ALAMEDA COUNTY COLISEUM, INC.; EDWIN O. DESILVA; 7 and ARTHUR ANDERSEN LLP, Defendants, Case No. 97AS06708, came on 8 regularly this day before HON. RICHARD K. PARK, Judge of the 9 Superior Court of California, for the County of Sacramento, 10 Department #39 thereof.11 The Plaintiffs OAKLAND RAIDERS, a California Limited 12 Partnership, and A.D. FOOTBALL, INC., a California Corporation 13 were represented by ROGER A. DREYER, JONATHAN W. HUGHES, 14 Attorneys at Law, County of Sacramento, State of California.15 The Defendants OAKLAND-ALAMEDA COUNTY COLISEUM, INC.; 16 EDWIN O. DESILVA were represented by JAMES J. BROSNAHAN, ARTURO 17 GONZALEZ, JOHNATHAN E. MANSFIELD, MELISSA JONES, Attorneys at 18 Law, County of Sacramento, State of California.19 The Defendant ARTHUR ANDERSEN was represented by STAN G. 20 ROMAN, FREDERICK S. FIELDS, Attorneys at Law, County of 21 Sacramento, State of California.22 The following proceedings were then had, to wit:23 THE COURT: Mr. Dreyer, let's proceed.24 MR. DREYER: Thank you, Your Honor. 25 MR. DREYER: Can we put 444 back up there, please.26 DIRECT EXAMINATION (RESUMED)27 By ROGER DREYER, Counsel for Plaintiff Oakland Raiders:28 Q. And, Dr. Dubin, in looking at this bullet report No. 4 or

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1 the last one. The Raiders' rate of price increases. What it 2 has actually been. 3 If they -- if the representations that had been made back 4 in '95 were true, if this was an excess demand situation and the 5 Raiders were in Group A, do you have an opinion as to whether 6 the Raiders could have increased their prices in accordance with 7 the annual changes that we've seen since 1995? 8 MR. HARRIS: Object to the question as an incomplete 9 hypothetical and inconsistent with the facts of the case. It 10 doesn't take into account contractual agreements as to ticket 11 price increases.12 MR. DREYER: Clearly it doesn't take into contractual 13 increase. I'm just asking whether if there are an excess demand 14 team, whether they have the ability to increase their average 15 ticket pricing in conformance with the average.16 THE COURT: Whether they could do it legally or not?17 MR. DREYER: Yes, sir.18 MR. HARRIS: I guess if that's the hypothetical, then I 19 guess I don't have an objection.20 THE COURT: All right. 21 THE WITNESS: Well, hypothetically they shouldn't have 22 been able to effectuate price increases like other Group A 23 teams.24 Q. (By Mr. Dreyer) And in terms of what specifically their 25 contract called for in terms of increases, if those increases 26 were in conformance or less than what went up on an average 27 basis, if they were a Group A team, would they have been able to 28 make these increases over the years since 1995?

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1 A. There is no reason why they wouldn't have been able to as 2 long as they, I suppose, were within the bounds of the timing 3 and contract provisions, yes. 4 Q. Now, in terms of your opinions relative to this sellout 5 perpetuating themselves. We talked about it relative to the 6 excess demand. In '95 as the representations had been true in 7 1995, if they sold out in 1995 and 1996. You indicated that 8 your expectation would be that these sellouts would continue for 9 a long time. 10 Do you have an opinion as to when you say long time, is 11 that consistent with a 14-year-time frame?12 A. It is.13 Q. And what do you base that opinion on?14 A. Based on the magnitude of the likelihood of continuing to 15 sell out from season to season, among other things.16 Q. And is that all consistent with your analysis in your 17 evaluation of this case based upon the facts and statistics that 18 you have looked at?19 A. Yes.20 Q. As well as with your regression model that you have done?21 A. Yes.22 Q. Now, let's talk about the defense experts. 23 First of all, let's talk about Mr. Grabowski. 24 I asked you to look at Mr. Grabowski's deposition 25 transcript, correct?26 A. Yes.27 Q. And your understanding of who Mr. Grabowski is is you 28 understand he is an expert hired by the defense?

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1 A. Yes. 2 Q. And an area of discipline similar to yours in terms he has 3 some opinions relative to what effect team performance would 4 have on ticket sales? 5 A. I don't know that his discipline is like mine, but his -- 6 he did opine about the performance effects, yes. 7 Q. Did you look at his work-up along with his depo, his 8 materials? 9 A. Yes, I did.10 Q. And his opinion regarding performance affecting sales -- 11 let's put aside for a second whether or not he is qualified to 12 render the opinion.13 What did he come up with on that topic?14 A. He came up with a huge performance effect. Using seven 15 observations, seven data points.16 Q. First of all, do you have an opinion as to whether that 17 opinion that it has a huge effect is accurate or not based upon 18 your workup?19 A. I have an opinion.20 Q. And your opinion is?21 A. I think it's grossly inaccurate.22 Q. When Mr. Grabowski does his analysis on seven factor 23 points, what did you call them?24 A. Data points.25 Q. Data points. How does that -- when you say seven data 26 points, what data points is he taking?27 A. He was using the Raiders alone at home games using one 28 number for every season.

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1 Q. Let's go through that. 2 So the Raiders alone at home with -- 3 A. Using one number for each season. In other words, the 4 season average ticket sales, and a -- some version of a season 5 average performance. 6 Q. Okay. Is that sufficient for purposes of drawing this 7 correlation that it would have such a huge effect? I mean does 8 it make it reliable -- strike that. 9 Seven data points, these data points, is that sufficient 10 in your opinion to make it a reliable opinion?11 A. I think it's not reliable.12 Q. What do you base that on?13 A. Well, I base it on the -- what I've discovered, and what 14 the literature says about important factors, which should appear 15 in a model of ticket demand. And Mr. Grabowski has attributed 16 all changes in ticket sales to only the performance of the 17 Raiders, and he has not considered any other factors, which I 18 think are very important.19 Q. Give us an example of factors he has not considered 20 relative to his model?21 A. Well, he didn't consider, for instance, all the other 22 factors I mentioned. Trends. He didn't consider population, 23 changes, changes in capacity. He didn't consider the 24 performance of the visiting teams, whether it was raining. All 25 the things that I mentioned before.26 Q. Now, the way he set up his model, was it pretty much from 27 your observation predestined to determine that performance would 28 be a huge factor?

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1 A. I could say that, yes. 2 Q. In looking at his model, if it was correct, let's assume 3 for a minute it was correct, how many games -- what percentage 4 of the Raiders' games would they have to win to achieve 95 5 percent capacity? 6 A. That's an interesting calculation. He has two models 7 actually. And one of the models, as I recall, the Raiders would 8 only have had to win 16 out of 16 in order to sell out. That 9 was an implication of his model. 10 And in his other model, they would only have had to win -- 11 I think it was a hundred and three percent, or I think it was 12 maybe 17 or 18 out of 16 games. A physical impossibility.13 Q. How is it -- I mean from a reliability standpoint, do you 14 have an opinion as to whether that's a reasonable conclusion to 15 put on a team to get a 95 percent capacity sellout?16 A. No. I think it's a preposterous conclusion.17 Q. Is that -- what do you attribute that being a result of? 18 Why is it that his model would require a perfect season or 19 better than a perfect season in order to get a 95 percent 20 capacity?21 A. You know, if I had an econometrics book, I would read the 22 chapter titles to you because one chapter is usually called the 23 omitted variable bias, where leaving out important factors, 24 biases your results. 25 Another chapter is called aggregation bias that we teach 26 students and practitioners. An aggregation bias is a 27 consequence of using in this case an annual observation where 28 all the literature and other researchers in this context have

page 5239




1 used game-by-game estimates. 2 Q. From your standpoint, does Mr. Grabowski's model violate 3 those biases? 4 A. It incorporates those biases. 5 Q. Let's talk about Blaine Nye. 6 Now, you did read his deposition, did you not? 7 A. I did. 8 Q. And you looked at his supporting materials, true? 9 A. Yes.10 Q. All right. Did you find something -- and he did a type of 11 regression model to determine or to address this issue of 12 whether performance impacts capacity or not, true?13 A. Almost true.14 Q. Tell us what he did?15 A. Okay. He used a regression model, which was very similar 16 to mine for the Raiders only, where he, in fact, I think 17 mimicked the basic set up I had. He set it up by looking at 18 eight regular season contests. He analyzed ticket sales. He 19 included the performance of the home team, and the performance 20 of the visiting team as I did. 21 And he made a couple of minor changes to what my model 22 had. For example, rather than looking at whether Mondays were 23 somehow different, he looked for Sunday games were different. 24 And I think rather than looking at whether night games 25 were different, he looked at how one o'clock games were 26 different, but those are minor changes.27 Q. Okay. And did you look at his -- did you do kind of a 28 spot check on some of his factual basis?

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1 A. I mean the first thing that I would do as an expert and I 2 did as an expert is to review the work papers and the source 3 documentation for another expert. 4 Q. I'm going to show you Exhibit 446. Those are documents 5 you received from us that were part of Mr. Nye's analysis? 6 A. Yes, they are. 7 Q. And the handwriting on it where there is some circles and 8 handwriting, whose is that? 9 A. That would be one of my research assistants at Pacific 10 Economics Group.11 Q. When you looked at this material, as an example, did you 12 find that Mr. Nye's material had errors in terms of his facts 13 that he was incorporating into his model?14 A. Yes, I did.15 Q. What did you find in that regard?16 A. Well, there were several categories of errors. I found at 17 least six instances in which the source materials that he used 18 were at odds with the official NFL statistics.19 Q. Let's talk about that. In terms of your analysis, you 20 told us -- and we've a list of all the different source 21 materials you went to. You relied in a large part on 22 information -- official information from the NFL, correct?23 A. That's correct.24 Q. Did you see where Mr. Nye went for information that he 25 relied upon?26 A. Yes, I did.27 Q. Can you explain to the jury what you saw?28 A. Well, for some seasons, he also went to the official NFL

page 5241




1 statistics. But in other seasons, he went to websites on the 2 internet that had been created by fans. 3 Q. Okay. 4 A. What -- 5 Q. And the information he drew out from the websites, was it 6 accurate or inaccurate? 7 A. No. It turns out it was actually inaccurate. 8 Q. Give us an example. 9 A. Well, one source that Mr. Nye apparently relied on is a 10 site, www.jt-sw.com. And it's prepared by a football site 11 owner, John Troan, it says. And I've isolated for an example 12 something from that web site. 13 This piece of paper, Exhibit 446, that's marked 446 14 indicates, for instance, that the Seattle Seahawks in 1999 were 15 at the Chicago Bears. And in week two, September 19th, this fan 16 had recorded that they lost the game.17 Q. And did he record the concluding score?18 A. He did. He recorded the score as 23, 14.19 Q. All right. Now, this 446, that's the document from the 20 Nye material, true?21 A. That's correct.22 Q. Attached to 446 is what?23 A. The official 2000 National Football League record. In 24 fact, the book which provides 1999 information.25 MR. DREYER: I would move 446 in, Your Honor.26 MR. HARRIS: Objection. Hearsay.27 MR. DREYER: Let's do this. Let's move in Mr. Nye's 28 document. Just the front page, 446, which is his source

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1 material. 2 MR. HARRIS: Objection. Lack of foundation. 3 THE COURT: Sustained. 4 Q. (By Mr. Dreyer) Well, when you looked at this document, 5 did you fact check it? 6 A. I did fact check this document. 7 Q. Is it, in fact, based upon your fact checking, was 8 September 19th a loss for the Seahawks? 23-14? 9 A. That's what this fan reported, yes.10 Q. What did the actual statistics indicate?11 A. The official statistics showed that in several different 12 places that, in fact, the Bears had lost to Seattle 13 to 14.13 Q. Okay. Now, factual inacurracies like that in Mr. Nye's 14 modeling, you say you found six different ones that you 15 observed, what, if anything, does that do to a model?16 A. Makes it unreliable.17 Q. And in terms of that opinion that he had relative to team 18 performance being a factor in ticket sales, do you agree or 19 disagree with what Mr. Nye had indicated?20 A. I disagree with his findings.21 Q. And could you even -- when you looked at his regression 22 model, could you figure out how they had actually even run one?23 A. No. We -- we have all the same data with the exception of 24 the -- approximately ten errors that I found in Mr. Nye's, and 25 we put those errors -- we fixed those errors and tried to 26 introduce those same errors into our own analysis. And when I 27 then ran the same specifications, same regression model, I 28 couldn't get anywhere near what Mr. Nye had determined.

page 5243




1 Q. What other errors did you find relative to Mr. Nye's 2 factors? 3 A. Oh, he had another instance where, for instance, the fan 4 -- again the fan based web site had recorded the contest as 5 occurring on a Sunday, but, in fact, when you look at the 6 calendar, it was really a Monday. And that doesn't sound like a 7 big deal, but if you are trying to figure out whether there is a 8 Monday night effect or a Sunday day effect, then misclassifying 9 a Sunday into Monday can make a difference.10 Q. From your perspective, was there anything in either 11 Dr. Grabowski's regression model regarding team performance and 12 Mr. Nye's evaluation, either one of those gentlemen, that you 13 found reliable in something, you as an expert in the field as 14 you described what you do, that you relied on those regression 15 studies?16 A. No, I wouldn't rely on them.17 Q. Okay. Dr. Dubin, thank you very much for your time. 18 Thank you for coming. That's all I have. 19 MR. DREYER: Other than the issue that we discussed 20 relative to the capacity statistics, Your Honor --21 THE COURT: Yes, of course.22 MR. DREYER: -- the Court indicated you wanted to look at.23 THE COURT: All right. Mr. Harris, cross-examine.24 CROSS-EXAMINATION25 By GEORGE HARRIS, Counsel for Defendants Oakland-Alameda County 26 Coliseum & Edwin O. DeSilva:27 Q. Good afternoon, Dr. Dubin. 28 First of all, Mr. Dubin, you said you found six to ten

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1 data points of Dr. Nye's that you found were inaccurate; is that 2 true? 3 A. Yes. 4 Q. Out of how -- 5 THE REPORTER: I'm sorry? 6 Q. (By Mr. Harris) Out of how many total data points? 7 A. Fifty-six. 8 Q. Now, Professor Dubin, you are an associate professor at 9 Cal Tech; is that true?10 A. That's correct.11 Q. And you became an assistant professor in 1982, and then 12 became an associate professor in 1988?13 A. That's correct.14 Q. Now the highest rank at Cal Tech is full professor; is 15 that true?16 A. No.17 Q. No. What's the highest rank?18 A. Retired. 19 Q. Is there a full professorship at Cal Tech?20 A. Yes.21 Q. That's now something you've been awarded at this point?22 A. The chairman talked to me about it just about a week ago.23 Q. But that hasn't happened yet, I take it?24 A. No, sir.25 Q. Now, Professor Dubin, you are a professor there on the 26 faculty at Cal Tech?27 A. Yes, I am.28 Q. But you also do a consulting business through Pacific

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1 Economics Group? 2 A. Yes. 3 Q. And you have clients and you bill them on an hourly basis? 4 A. Yes. 5 Q. And you do that about -- at $400 an hour; is that correct? 6 A. My billing rate is, yes. 7 Q. You also have other people who work for you whose time you 8 bill at various other rates? 9 A. Much lower, yes.10 Q. People who assist you in your work?11 A. Yes.12 Q. Now, one of the things that you do through the Pacific 13 Economics Group is to consult with parties in litigation?14 A. Sometimes, yes.15 Q. And you have done that on a number of occasions?16 A. Yes.17 Q. I mean how many occasions would you say you have been a 18 litigation consultant?19 A. I don't know. Maybe a hundred, maybe 50 to a hundred 20 perhaps.21 Q. And you talked about the Polaroid case. That was an 22 example again where you were a consult --23 THE REPORTER: I'm sorry.24 Q. (By Mr. Harris) You talked about a Polaroid case and 25 that's an example of where you were a consultant to one side in 26 the litigation; is that right?27 A. Yes.28 Q. Now, you were contacted by lawyers for the Raiders in this

page 5246




1 case, true? 2 A. Yes. 3 Q. And they engaged you to consult in this case? 4 A. Yes. 5 Q. And you understood that you might or might not be 6 requested to give trial testimony; is that right? 7 A. I don't think they indicated at that time. I assumed I 8 would be required or not required to give trial testimony as 9 they would indicate.10 Q. And later they indicated they --11 THE REPORTER: I'm sorry. Again.12 Q. (By Mr. Harris) And later they did indicate they wanted 13 you to give trial testimony?14 A. Yes.15 Q. And at the time of your deposition in February, you had -- 16 you had produced bills to the Raiders in this case; is that 17 right -- of series of bills for the work that you had done up to 18 that point?19 A. Yes.20 Q. And at that point, you billed about $160,000; is that 21 correct?22 A. If you added it up, that could be.23 Q. We can look at them, if you would like. Does that sound 24 about right to you?25 A. I would have thought that it was actually higher, but 26 okay.27 Q. What did you think it was?28 A. I don't know maybe 165,000, 180,000. I don't know.

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1 Q. Some where in that range? 2 A. Uh huh. 3 Q. And since that time, you've done significant additional 4 work on the case since your deposition, correct? 5 A. I've done additional work, yes. 6 Q. Including a lot of the correlations with season ticket 7 sales, a lot of that you've done since your deposition in this 8 case; is that correct? 9 A. No. I've done other analyses since the deposition, but 10 season ticket sales were done prior to deposition.11 Q. Okay. And approximately how much -- have you rendered 12 bills since that time also?13 A. Yes.14 Q. And approximately how much have you billed for your work 15 on this case since your deposition in February?16 A. I'm not specifically sure, but it's possible it was 17 another 50 or $60,000.18 Q. Okay. So your total work on the case maybe $225,000, 19 something like that?20 A. Or perhaps even a little higher.21 Q. Now, Professor Dubin, you don't have any personal 22 knowledge regarding what was said about the sale of PSLs on 23 August 7th of 1995, true?24 A. No, I don't.25 Q. And you are not here to offer any opinion about whether 26 anyone committed fraud in this case?27 A. No, I don't have any.28 Q. You have been hired by the Raiders to do some statistical

page 5248




1 analysis; is that true? 2 A. Statistical and economic analysis, yes. 3 Q. And to offer your opinion on that basis, that's what 4 you've done? 5 A. Yes. 6 Q. Other than your work for the Raiders on this case, you've 7 never consulted with any NFL football team, correct? Other than 8 your work for the Raiders, you've never consulted with any NFL 9 football team, correct?10 A. Other than my work for the Raiders, I have not worked for 11 another NFL team.12 Q. Other than your work for the Raiders, you haven't 13 consulted with any other sports franchises?14 A. No.15 Q. Or sports teams?16 A. Nope.17 Q. And you've never been asked by any sports team to analyze 18 or project ticket sales?19 A. Not to date other than in this case.20 Q. I'm talking about other than --21 THE REPORTER: Other than --22 Q. (By Mr. Harris) And you haven't been asked by any sports 23 team to analyze or project attendance?24 A. No.25 Q. And, in fact, prior to being -- being hired by the Raiders 26 in this case, you hadn't done any research in the area of NFL 27 football demand?28 A. Oh, I don't know if that's correct.

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1 Q. You hadn't published any articles with regard to the 2 demand for NFL football prior to being hired by the Raiders in 3 this case; is that true? 4 A. Prior to being hired I've not published any, that's 5 correct. 6 Q. And you hadn't done any research regarding the excess 7 demand for tickets to -- 8 THE REPORTER: For tickets to -- 9 Q. (By Mr. Harris) You hadn't done any research regarding 10 excess demand for sporting events prior to being hired by the 11 Raiders in this case; is that right?12 A. I would say that's incorrect as well.13 Q. Well, none of your various -- none of the publications you 14 talked about have to do with excess demand for sporting events; 15 is that correct?16 A. Those are my writings, yes.17 Q. Now as part of your work on the case, you prepared a 18 report?19 A. Yes.20 Q. And you first prepared a draft in the year 2000; is that 21 true?22 A. Yes.23 Q. And then since that time, you have done a number of 24 different drafts or revisions of that report, correct?25 A. I did one draft each year after, and I did also -- before 26 deposition, I did multiple drafts, so the answer is yes.27 Q. You said before deposition in January of this year, you 28 sent a draft to counsel; is that true?

page 5250




1 A. I think that's right. 2 Q. And you got comments on that draft? 3 A. I did. 4 Q. And you made revisions in response to those comments? 5 A. I listened to what the comments were. They were questions 6 to me, and I made some changes, yes. 7 Q. And then you did add a number of additional times? 8 A. Yes. 9 Q. Maybe ten, 15 times?10 A. That I don't recall. It could have been ten.11 Q. Now, in fact, in response to comments from counsel at one 12 point, you took a section of the report, took it out of the 13 report; is that true?14 A. In response to comments by counsel, yeah, that's accurate.15 Q. And then that section of the report -- you actually 16 published that as a book chapter, the part that you had taken 17 out of the report; is that true?18 A. I think the chronology is a little misleading there, 19 but --20 Q. So you had already published it as a book chapter prior to 21 that time?22 A. Yes.23 Q. But it's something you did as part of your work for the 24 Raiders on the case initially?25 A. Well, the book chapter was something I did for me, but it 26 was based on research I had been doing for the Raiders in 27 January or February of the year 2000.28 Q. Okay. But that work that became the book chapter, they

page 5251




1 suggested that should be taken out of the report? 2 A. No. They didn't suggest the book chapter should be taken 3 out of the report. They suggested that there was some material 4 in the book chapter that had nothing to do with this case, and 5 they -- they asked me to consider whether I could remove that 6 material or whether it was actually germane to this case. 7 Q. But it was originally part of the report, and then it was 8 taken out, true? 9 A. It was originally part of my book chapter and it still is 10 part of the book chapter, was originally part of my report, and 11 then it was taken out.12 Q. So it was still part of the --13 THE REPORTER: I'm sorry. Again.14 Q. (By Mr. Harris) It's still part of the book chapter, and 15 we are going to look at that, but it was taken out of the 16 report, true?17 A. That's correct.18 Q. Now, of these drafts that you sent to counsel, you haven't 19 retained any copies of those; is that true?20 A. I don't keep drafts, no.21 Q. Okay. Now, Professor Dubin, according to your statistical 22 analysis, once an NFL team sells out, there is a good chance 23 that it will sell out the following year, true?24 A. If they are in excess demand, yes.25 Q. Well, you talked about that there was a 91 percent chance 26 if a team sells out, it will sell out the following year, 27 correct?28 A. With the causal factor being excess demand, yes.

page 5252




1 Q. Well, I understand that it's your opinion -- 2 THE REPORTER: I'm sorry. Again. 3 Q. (By Mr. Harris) Well, I understand that it's your opinion 4 that the causal factor is excess demand, but, in fact, when you 5 developed that 91 percent statistic, you didn't try to 6 distinguish between teams that you considered in excess demand 7 or not in excess demand, true? 8 A. Well, I had considered that, yes. 9 Q. Well, but when you reached that 91 percent number, that 10 was looking at all teams whether they had sold out in one year. 11 And then whether they sold out the following year, correct?12 A. Yes.13 Q. All teams, whether or not you could characterize them as 14 being in excess demand or not?15 A. Well, I had a strong idea of which teams were in excess 16 demand, and I didn't need to do anything further to render an 17 opinion about that percentage.18 Q. Well, but my question is how you arrived at the 91 percent 19 number?20 A. Yes.21 Q. And that included looking at all teams whether they fit in 22 your excess demand category or not?23 A. That's true.24 Q. So, in fact, counsel showed you Exhibit 429, which was the 25 chart of whether a team had sold out in the years 1995 to 2001, 26 remember that?27 A. Yes.28 Q. And that's the seven years you looked at to develope your

page 5253




1 91 percent statistic, correct? 2 A. Yes. 3 Q. And essentially what you did, any time that there is a red 4 box, you looked and saw if there was a red box the following 5 year, correct? 6 A. No, that's not correct. 7 Q. Well, if we -- if every time there's a sellout, we looked 8 and saw whether there was a sellout the following year, we find 9 that there was 91 percent of the time, correct?10 A. In some specifications of the loge modeling that I 11 estimated, that would be an equivalent procedure, yes.12 Q. So that's not the procedure you followed but that would 13 reach essentially the same result, true?14 A. Yes.15 Q. Or if we counted every time there were two boxes in a row, 16 you found that then in the third year there was a 95 percent 17 chance that there would be a sellout in the third year, true?18 A. Again, that's not the procedure I followed, but under some 19 specifications, that would be equivalent, yes.20 Q. It's kind of a simple minded way to understand or 21 different ways to reach the same result, true?22 A. It's a simple minded way of doing it, yes.23 Q. A simple mind think of simple things. 24 But you also looked at whether there was any increase 25 percentage for the fourth year in this kind of regression, true?26 A. I'm not following you.27 Q. Well, you looked at -- if on a statistical basis, if there 28 was a 91 percent chance the second year, and then with two years

page 5254




1 in a row of sellouts, and 95 percent chance the third year, you 2 looked at whether -- what the percentage would be in the fourth 3 year, correct? 4 A. I don't know what you mean? 5 Q. Well; isn't it true that you found that the percentage -- 6 the probability there would be a sellout in subsequent years 7 never got above 95 percent no matter how far you went out? 8 A. No, I didn't find -- I didn't find what you are indicating 9 at all.10 Q. Well, isn't it true that you looked to see whether it was 11 possible to the third year in a row of sellout history would 12 have any influence on the likelihood of increase probability of 13 sellout. And you found that the percentage always remained at 14 95 percent?15 MR. DREYER: Well, object. It's compound, Your Honor. 16 It's also vague and ambiguous as to the basis. 17 THE COURT: Overruled. 18 THE WITNESS: That your question I think leads to -- I 19 think you are misunderstanding. I looked historically at more 20 years to see whether there was an increase in the percentage, 21 but that has nothing to do with say what's happening in the 22 fourth year. The direction is the wrong direction.23 Q. (By Mr. Harris) So when you looked at those seven years, 24 1995 to 2001, you looked historically at whether after three 25 years in a row of sellouts, the percentage of sellouts in the 26 fourth year increased beyond 95 percent?27 A. Or decreased.28 Q. And you found that it never got above 95 percent, true?

page 5255




1 A. It didn't change from 95 percent according to the model 2 that I used, no. 3 Q. And based on this analysis and the 91 percent and the 95 4 percent, you conclude -- and that's part of your basis for 5 concluding that there is a likelihood of sellouts from -- if 6 there was a sellout in 1995 and a sellout in 1996, that there is 7 a high likelihood of sellouts through 2010, correct? 8 A. In the presence of excess demand, correct. 9 Q. But, again, those percentages that you arrived at, that 10 was looking at all teams for the period of 1995 to 2001?11 A. That's correct, and if you add the factor for excess 12 demand, you get exactly the same answer.13 Q. And you wouldn't have the same -- you can't say the same 14 thing if you just talked about one year of sellouts, true?15 A. I don't know what you mean by if I looked at one?16 Q. But if you only had a sellout in 1995, that would not 17 predict a high probability of sellouts in subsequent years, 18 true?19 A. It could.20 Q. Well, it wouldn't -- if you didn't have -- if you had a 21 sellout only in 1995, that would predict a 91 percent chance of 22 a sellout in 1996 according to your statistics, true?23 A. I think the probability is actually even higher than that, 24 but one year is about -- I think it's closer to 94 percent than 25 91 percent, but --26 Q. Well, what you did -- first of all, you found that there 27 was a sellout in 1995, correct.28 MR. DREYER: Vague.

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1 THE COURT: Vague? 2 MR. DREYER: As to what? Talking about the Raiders? 3 Q. (By Mr. Harris) Talking about there is a sellout at the 4 Oakland Coliseum as you defined it in 1995? 5 A. Yes, I did. 6 Q. And you defined it as 95 -- ticket sales that were at 7 least 95 percent of capacity, true? 8 A. That was my definition of sellout, yes. 9 Q. In fact, you found that there was about 97.5 percent 10 ticket sales as a percentage of capacity in 1995, true?11 A. Yes, that's about right.12 Q. Now then you also assumed a sellout in 1996, true?13 A. I didn't assume a sellout in 1996.14 Q. Well, your opinion that there's a high likelihood of 15 sellout for 15 years depends on there being a sellout in 1996, 16 true?17 A. It depends on there being excess demand in both seasons.18 Q. Well, in fact, Professor Dubin, if we don't -- if there 19 wasn't that excess demand, we don't have a sellout in 1996, then 20 the probability of sellout in 1995 according to your statistics 21 is only 91 percent, true?22 A. I have changed those statistics based on what we talked 23 about in deposition. I now think that number is closer to 94 24 percent.25 Q. So what you said at the deposition, you've revised since 26 that time, you no longer believe that to be true?27 A. We had a long discussion about the definition of sources 28 of data, and I think you convinced me that there was a better

page 5257




1 source of information for capacity that I should adopt. I think 2 the way you put it is if you use this day by game -- game by 3 game capacity; isn't it correct that you would have to color in 4 another square? And I said, Yes, absolutely. You have to color 5 in another square. So I had gone back to the computer and 6 colored in that square, and now my estimates have changed. 7 Q. Well, that square we are talking about was a sellout in 8 the future, 2002, correct? 9 A. No, it wasn't. It was -- we are talking about 1995.10 Q. Okay. So a sellout in 1995?11 A. Right.12 Q. All right. But that still doesn't allow you to that -- 13 assume any statistical prediction of 1996 other than the 91 14 percent, true?15 A. I have no idea what you are talking about.16 Q. Well, you found when you looked at all of the teams in 17 1995 to 2001, that they sold out in one year, 91 percent of the 18 time they sold out the following year, true?19 A. I've revised the data. I now accept 94 percent for that 20 figure.21 Q. All right. But even if we accept 94 percent with two 22 years of sellouts, you agree that the percentage of probability 23 in the third year is still only 95 percent, true?24 A. Yes.25 Q. And so then if we look at the probability of sellout in 26 the third year, in this case 1997, then that probability is 27 going to be 95 percent times 95 percent, true?28 A. You could do that in the presence of excess demand.

page 5258




1 Q. All right. So if we -- in 1997, then the probability part 2 of your statistics would only be 95 times 95, about 90 percent, 3 true? 4 A. Well, I am assuming that there is excess demand present in 5 the first year, so that's -- and possibly even the second year, 6 and I'm going from that point on. But there is a point of which 7 you might be tempted to multiply some probabilities together, 8 yes. 9 Q. If you were tempted to do that beginning in -- we said a 10 sellout in 1995 and 1996, then according to your statistics, 11 there would be a 95 percent probability in 1997, correct?12 A. If I assumed there was excess demand of those first two 13 years, then the conditional probability that there will be 14 excess demand in 1997 would be 95 percent.15 Q. And in 1998, it would be somewhat less. It would be 95 16 percent times 95 percent, true?17 A. Yes.18 Q. And that's about 90 percent?19 A. I don't know without looking at a calculator.20 Q. I got one luckily.21 A. .9025.22 Q. So then if we keep going in 1999, we have to take that by 23 95 percent again, correct?24 A. If you wanted to pursue the calculation this way for some 25 reason, yes.26 Q. Because that's what the number is, right? It never gets 27 above 95 percent?28 A. That's not the point.

page 5259




1 Q. Well, my point is if we take the probability in the next 2 year, 1999, we would take 95 percent times 90 percent to find 3 the probability of 1999, right? 4 A. If you want to do this for some reason, I guess it's 5 correct, but I wouldn't do this. 6 Q. What would be the percentage if we took 90 percent times 7 1995? 90 percent times 95 percent for the year 1999? 8 A. I mean I'm willing to keep multiplying for you, but I 9 don't see the relevance.10 Q. Let's -- what would be the percentage in 1999?11 MR. DREYER: Well, Your Honor, I would object then if it's 12 on the basis of relevance. Maybe we could have an opinion. We 13 could do the calculations. If he is asking him to do something 14 that has no basis.15 THE COURT: This is not a question of whether he thinks 16 it's relevant. It's a question of what I think is relevant. 17 The objection is overruled.18 THE WITNESS: 0.855.19 Q. (By Mr. Harris) So you are saying it's a 95 percent 20 probability each year, that number gets reduced by some 21 proportion, true, assuming there is a 95 percent probability 22 going forward?23 A. Well, what number are we calculating? 24 Q. We are calculating the probability of a sellout in the 25 following year based on the 95 percent assumption?26 A. No. That's not a calculation of the probability of a 27 sellout in the following year.28 Q. Well, wouldn't you agree that if we continued to take the

page 5260




1 95 percent probability year after year, that predicting out into 2 the future becomes less and less probable as we go forward? 3 A. Again, if you -- if you insist on multiplying this .95 4 together, you will get a smaller number. 5 Q. In fact, by the time we get to 2010, we will get a number 6 of about .49; is that true? 7 A. I don't think that's correct. 8 Q. You don't think that's correct, but we could multiply them 9 out and we could see?10 A. Well, I think that you are talking about 13 years there, 11 14.12 Q. I think we are talking about 1997 through 2010 which are 13 14 years in addition to 1995 and 1996?14 A. I can cut to the chase. .95 to the 14th power is a number 15 of above 50 percent.16 Q. What number is .95 to the 14th power, as you recall it?17 A. I don't know. 52 percent maybe.18 Q. So maybe 52 percent instead of 49 percent. That would be 19 your calculation of 95 percent to the 14th power?20 A. That's what that number is, yes.21 Q. Now, you conclude based on the years that you have looked 22 at that excess demand is something that's common in the NFL, 23 true?24 A. Yes.25 Q. And that part of your basis for saying that if there had 26 been initial excess demand in this case, there could have been 27 sellouts for all of these 16 years, true?28 A. Yes.

page 5261




1 Q. But when you looked at the years 1995 to 2001, out of the 2 32 teams, only 12 of those teams had actually had sellouts for 3 those seven years, true? All of those seven years? 4 A. That's probably true. 5 Q. Now, and your analysis doesn't consider preseason games or 6 reach any conclusion about selling out preseason games; is that 7 right? 8 A. Well, I have an opinion about selling out preseason games. 9 Q. But this analysis when you reached the 91 percent and 95 10 percent, that didn't take into account preseason games, true?11 A. The calculation of those probabilities did not reflect 12 preseason games.13 Q. Now, at -- there was a point at which lawyers for the 14 Raiders showed you a projection of damages that were being 15 claimed based on that sellout scenario; is that true?16 A. Yes.17 Q. And, again, this was showing a projection of sellouts 18 beginning in 1996 and all the way through the year 2010, 19 correct, do you recall seeing that?20 A. I think so.21 Q. And do you remember telling them that your statements 22 about future sellouts were probabilistic; whereas, their 23 scenario seemed to be assumed with certainty?24 A. I may have phrased it exactly like that, yeah.25 Q. Now --26 A. Did I say it looked to me like it was assuming certainty? 27 Q. Did you say that at some point that you explained that 28 your statements about future sellouts were probabilistic ones;

page 5262




1 whereas, their seemed to be a scenario with certainty, and you 2 wanted to point that out to counsel, did you say that? 3 A. I was looking for the "seem to be", yes. 4 Q. Now, again, your calculations are based on analysis of NFL 5 wide statistics, true? 6 A. Yes. 7 Q. And it's also true that much less of the database on NFL 8 experience is -- or most of it is with teams that have season 9 ticket sales but not season ticket sales coupled with PSLs?10 A. Well, I don't know that it's about -- I think it's like 44 11 percent have PSLs.12 Q. As of today but not for the seven years that you looked 13 at?14 A. That's correct.15 Q. Many of those programs are very new. Chicago Bears just 16 entered into it this year?17 A. That's correct.18 Q. So most of the database of experience is based on teams 19 that don't have PSLs?20 A. Yes, if most is defined under 50 percent, that's correct.21 Q. You don't know whether there is a positive correlation in 22 the NFL generally between sales of PSLs on the one hand and 23 total tickets sales on the other?24 A. I think I do know that.25 Q. Well, you didn't know that at the time of your deposition, 26 correct?27 A. I may have answered that question thinking that of the 28 analysis. When you posed a question, you know, the expert or

page 5263




1 the person is thinking of the question, and I didn't have data 2 on PSLs, but I can -- I can render an opinion about correlation 3 now that I have thought about it a little bit more. 4 Q. One of the things that you asked for from counsel was 5 information in data on PSLs for various league participants, 6 correct? 7 A. Yes. 8 Q. And let's look for a minute at Exhibit 429. 9 MR. HARRIS: Go ahead and put it up. 10 Q. (By Mr. Harris) That's your chart of sellouts, 1995 to 11 2001. 12 Now of the teams, top of the list, that is sold out for 13 those seven years, the Chicago Bears didn't have a PSL program 14 until just this year, correct?15 A. I can't recall.16 Q. Is that consistent with your recollection?17 A. I just didn't memorize which teams had PSL programs.18 Q. Okay. That's not something that you looked at as part of 19 your analysis?20 A. I have workpapers that show exactly which teams have PSLs 21 and when they got them.22 Q. Do you know if the Denver Broncos have a PSL program?23 A. Again, I didn't memorize which ones had PSLs.24 Q. You know -- you know how many of those teams -- you know 25 the 49ers don't have a PSL program, true?26 A. Again, I didn't memorize which teams have PSLs. My work 27 papers indicate which teams have PSLs and when they were 28 acquired.

page 5264




1 Q. Would it be consistent with your recollection that the 2 majority of those teams don't have PSL programs? 3 A. It could be that way. 4 Q. Just not sure one way or the other? 5 A. No, just don't remember. 6 Q. Now that's okay. 7 Now you don't take into account in your analysis the 8 specific attributes of the Raider PSL program, true? 9 A. I don't know how one could.10 Q. That's because there aren't any other teams in the NFL 11 that have a PSL program like the Raiders, true?12 A. I think that's what Mr. Howell said, yes.13 Q. I mean there is no -- no other team that has a PSL that 14 goes for only ten years?15 A. Not to my knowledge.16 Q. In fact, there is no other teams that you are aware of in 17 the NFL that have PSLs that are not permanent in the sense that 18 they are good as long as the team plays in the stadium?19 A. I think that's what Mr. Howell said.20 Q. And you don't have any information to the contrary?21 A. I don't.22 Q. And you are aware that with the Oakland PSL would have had 23 to have been renewed after ten years for the final five years of 24 the lease term? You are aware of that?25 A. I think that's what the contract stated, yes.26 Q. And now you agree that the term of a PSL, how long it 27 lasts, could impact how likely it is that a fan would renew 28 their season ticket and maintain the PSL?

page 5265




1 A. It could have an effect, yes. 2 Q. Now you also didn't consider the price of the PSL product 3 as part of your analysis, true? 4 A. I considered the range of prices, but I didn't consider 5 the individual prices of specific PSL products from team to 6 team. 7 Q. And you didn't consider the cost of the Oakland PSL 8 program, correct? 9 A. Again, I knew the range, but I didn't know the -- how that 10 broke down in terms of the a weighted average.11 Q. And in terms of the likelihood that PSLs and therefore 12 season tickets would be sold in the future, you didn't look at 13 the breakdown in prices between, say, club PSLs on the one hand 14 or other PSLs?15 A. I think I told you that it did have club prices, but not 16 club PSLs prices.17 Q. So you didn't -- and you didn't consider in any way as 18 part of your analysis the difference in prices between those 19 products?20 A. No, I didn't.21 Q. Or how many club PSLs were not available in 1995. You 22 didn't consider that?23 A. Not available relative to what?24 Q. To the stadium -- that were not available for the 1995 25 stadium as opposed to the expanded stadium in 1996?26 A. You mean whether or not 6000 seats were available or not 27 available in 1995 because they hadn't been built yet?28 Q. Yes.

page 5266




1 A. No, I hadn't considered that. 2 Q. You know though there were only 45,000 PSLs available in 3 1995? 4 A. Let me amend that. I certainly considered that change in 5 the number. I hadn't considered the pricing of those products. 6 Q. You considered the main change in the number from 45,000 7 to a total of 55,000? 8 A. Yes. 9 Q. But you didn't consider how many of those additional seats 10 were the high priced club seats?11 A. No, I didn't.12 Q. Now, you relied for your analysis in part on the band 13 wagon effect, true, you talked about that?14 A. Yes.15 Q. And that's something that's described by Gary Becker, the 16 economist that you referred to?17 A. Among others, yes.18 Q. And you'd expect that for an NFL team, the perception that 19 tickets are in demand --20 THE REPORTER: I'm sorry. Again.21 Q. (By Mr. Harris) The perception that tickets are in short 22 supply of demand, that would actually increase the demand for 23 those tickets, correct?24 A. I think that there is something too sometimes the notion 25 of scarcity can influence consumers to purchase more quickly.26 Q. And it could also be the band wagon effect suggests that 27 people like the buzz of a full stadium if you look at it in the 28 context of a sporting event?

page 5267




1 A. That's true. 2 Q. So the perception that there are sellouts or near 3 sellouts, that might increase the motivation of fans to buy 4 tickets. 5 MR. DREYER: I'll object. It's compound. 6 THE COURT: Between sellouts or near sellouts. 7 MR. DREYER: Yes, sir. 8 THE COURT: You want to break it down. 9 MR. HARRIS: Let me rephrase the question.10 Q. (By Mr. Harris) I mean a statement that tickets are going 11 fast, that could actually increase demand, correct?12 A. It possibly could, sure.13 Q. Now, the band wagon effect, it also depends on what 14 consumers, as it theorized it, depends on what consumers are 15 experiencing at the event, correct?16 A. No, not necessarily correct.17 Q. Well, the theory in part is that the experience of the 18 event itself, the social experience of it is part of what drives 19 the consumers' demand for the product?20 A. That's correct, but there is also the component due to 21 your -- you don't know ahead of time whether you are going to be 22 one of those people in the stadium or not. So others who are on 23 the periphery or not, who are part of the excess demand are 24 reacting to the overall level of the demand as well.25 Q. But you would agree that if there is -- that what would 26 drive the bag wagon effect in the context of a sports event 27 would be attendance, not actual ticket sales?28 A. No, I wouldn't agree with that.

page 5268




1 Q. Would you agree that even though the theory talks about 2 sales that demand -- that attendance is actually closer to what 3 fans are experiencing and closer to what the band wagon effect 4 is all about? 5 A. Fans' experience is certainly more closely related to 6 attendance for those fans who are actually in the stadium. But 7 to point out that is an expected buzz because there is a larger 8 group of people at issue here, not just those who make it into 9 the stadium, but those who are not making it in. And because 10 there are others who are waiting in the periphery to get in, 11 that the evaluations are higher.12 Q. And that's why the expected buzz is why perception that 13 tickets are going fast might actually increase demand? The 14 expected buzz?15 A. I'm not sure if that's a hypothetical, or that certainly 16 could be true in some circumstances.17 Q. I want to talk about ticket pricing for a minute. 18 You talked about the fact that the Raiders had not raised 19 their ticket prices between 1995 and 2001. Remember that?20 A. I remember that.21 MR. HARRIS: And why don't we put up Exhibit 444 for a 22 minute. 23 Q. (By Mr. Harris) First of all, you didn't find any 24 difference between what you call the Group A teams who are 25 perpetually selling out and the rest of the NFL as far as 26 average annual change in ticket price, correct?27 A. That's right.28 Q. And 8.8 percent or 8.9 percent you essentially

page 5269




1 THE REPORTER: I'm sorry. Again. 2 Q. (By Mr. Harris) 8.8 percent or 8.9 percent, you 3 essentially found no difference between that group and the NFL 4 as a whole? 5 A. I wouldn't call it a big difference. 6 Q. Now, you know that in 1995, the Raider ticket prices were 7 the second highest in the league, correct? 8 A. That sounds right. 9 Q. And that's without taking into account the additional cost 10 of the PSL?11 A. Well, the cost of the PSL is a separate factor for those 12 fans, yes.13 Q. Separate factors. So when we say that they had the second 14 highest price in the NFL, that's just the price of the ticket or 15 the season ticket, not the additional cost of the PSL?16 A. They are separate factors. There are two costs at issue.17 Q. But if we were comparing Raiders' prices to a team that 18 didn't have PSLs, that would be an additional cost that applied 19 in the Raider case and didn't apply in the other team's case.20 MR. DREYER: I'll object, Your Honor. It is argumentative 21 as to the way in which it is presented as if it's every year 22 which is not factual.23 THE COURT: Overruled.24 THE WITNESS: Could I hear the question again please. 25 (Record read.)26 A. There's an additional cost at least initially when the PSL 27 is purchased. That it would be different in that hypothetical 28 that you are describing, yes.

page 5270




1 Q. (By Mr. Harris) Do you know if in the case of club PSLs 2 there were also annual club premiums that were paid each year? 3 A. I think there was a maintenance fee for clubs or something 4 like that maybe. 5 Q. Do you know if there was also a yearly maintenance fee for 6 other PSLs? 7 A. I'm sorry. There was a maintenance fee for PSL products, 8 and there was also a club premium, I believe it was. 9 Q. For the club PSLs?10 A. I think so.11 Q. Okay. Now, even in the year 2000 before the Raiders 12 ultimately raised ticket prices, they were -- they still had the 13 third highest ticket prices in the league; is that consistent 14 with your recollection?15 A. They were losing grounds fast, and I think they came to 16 parity with other teams in the NFL in -- I think it was 17 approximately 2000.18 Q. Let's -- I want to show you what we've marked as Exhibit 19 2165. 20 Mr. Dubin, do you recognize Exhibit 2165?21 A. Yes, I do.22 Q. What is Exhibit 2165?23 A. It's a cover letter and an enclosed document, which is 24 entitled "National Football League Summary Attendance Statistics 25 2000 season."26 Q. Who is the cover letter from?27 A. It's from Howard Rice from Sheila Higgins to Mr. Dubin.28 Q. So that was from the -- one of the law firms that was

page 5271




1 working for the Raiders to you? 2 A. Yes. 3 Q. Giving you information to -- as part of something that 4 pertained to your work on this case? 5 A. I think it was sort of giving me old information, but it 6 was new to me at the time. 7 Q. Old information that pertained to the work that you were 8 doing at that time on the case? 9 A. What I mean by old information, it was historical 10 information.11 Q. And the fact it was a summary of attendance statistics and 12 other statistics from the 2000 season, correct?13 A. Yes.14 Q. And this is something that you reviewed and relied on for 15 your work in the case?16 A. Yes.17 Q. I would like you to look at page 32 of this document.18 A. Okay.19 Q. Is that a compilation of average ticket prices for the 20 2000 season?21 A. Yes, it is.22 Q. And if you look at the far right-hand column, it shows the 23 gross averages without club seat premiums?24 A. Okay.25 Q. For all of the teams in NFL; is that true?26 A. Yes.27 Q. Now, if you look at that, does that refresh your 28 recollection that Raider ticket prices were still the third

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1 highest in the league at that time? 2 A. It doesn't refresh my recollection, but I can tell you if 3 I think that's indicated here. 4 Q. Do you think that's indicated there? 5 A. There was Washington at $67. There was 53.97 is 6 Jacksonville, and then there was the Raiders. 7 Q. The third after Washington and Jacksonville? 8 A. Yes, that's right. 9 Q. And so the Raiders' average price was 53.97, and the 10 league's average was $45.72, correct.11 MR. DREYER: I'm sorry. I think you misspoke. You said 12 the Raiders' average is 53?13 Q. (By Mr. Harris) The Raiders' average ticket price was 14 $51.74, correct?15 A. Yes.16 Q. And the league's average average ticket price was about 17 eight dollars less, true?18 MR. DREYER: Object, Your Honor. You know, if we are 19 going to apply the rules, I mean this is all hearsay. 20 MR. HARRIS: I'm asking, Mr. Dubin, if this is the 21 information that he relied on for his opinions in analyzing 22 ticket prices.23 MR. DREYER: Still hearsay.24 THE COURT: But he is permitted to rely upon it; and 25 therefore, since he testified he did, he can cross-examine him 26 with respect to that reliance being offered independently to 27 prove the fact of the matter. 28 Overruled.

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1 THE WITNESS: Well, you've done the arithmetic wrong, I 2 think. $8 plus $45.72 would be $53.72. The Raiders' average 3 was $51.74. 4 Q. (By Mr. Harris) I'm sorry. I was looking at the wrong 5 line. You are right. I was looking at Jacksonville. So about 6 six dollars' difference, true? 7 A. Okay. 8 Q. Now, as part of your analysis, you haven't tried to 9 analyze whether the ticket prices in Oakland in 1995 in 1996 10 were set too high; is that true?11 A. I haven't tried to analyze whether they were too high, no.12 Q. And you would agree that if the total price of a product 13 is set too high, it can have a disastrous effect on demand?14 MR. DREYER: I'd object. Vague, ambiguous, also calls for 15 speculation, and --16 THE COURT: Disastrous effect is vague and ambiguous. 17 Sustained?18 Q. (By Mr. Harris) If the total price of a product is too 19 high, it can have a -- it can diminish the demand for that 20 product, true?21 A. I'm not sure what you mean by total price? 22 Q. Let's just say price then. If the price of a product is 23 set too high, it can diminish the demand for that product, would 24 you agree?25 A. In some cases unless demand is -- price --26 THE REPORTER: I'm sorry. Again.27 THE WITNESS: Unless the demand is price insensitive.28 Q. (By Mr. Harris) And you haven't looked at whether that

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1 might be the case here in Oakland; is that true? You never 2 looked at whether the seller set the prices too high? 3 MR. DREYER: Object. Vague. 4 THE WITNESS: Price of what? 5 THE COURT: Hold on. 6 THE COURT: You just asked that question, did you not? 7 MR. HARRIS: I think you are right, Your Honor. Let me 8 rephrase. 9 Q. (By Mr. Harris) Let me ask you this.10 You haven't ruled out the possibility that one reason why 11 there weren't sellouts in Oakland in 1995 and 1996 is that the 12 price was simply too high for the market?13 A. I haven't ruled that out. It would be incredibly 14 inconsistent with the representation that there was a sellout 15 though.16 Q. Well, let's talk about the representations as you referred 17 to them. 18 Now, first of all, you understand that the claims in this 19 case have to do with the 1996 season and after; is that true?20 A. The financial claims for damages, yes.21 Q. And you understand that there is no financial claim with 22 regard to the 1995 season?23 A. I think that's right. I am not a hundred percent sure.24 Q. By your criteria, the 1995 season was, in fact, sold out 25 in terms of ticket sales?26 A. Yes.27 Q. Now, in fact, in 1995, Raider ticket sales as a percentage 28 of capacity were significantly above the NFL average; is that

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1 true. 2 MR. DREYER: Objection. Vague. 3 THE COURT: Overruled. 4 THE WITNESS: Do you mind if I look at my report on that? 5 MR. HARRIS: No. Go ahead. 6 THE WITNESS: (Pause.) Sorry. You know, I don't know if 7 I can give you an answer because my report provided the average 8 for the NFL excluding the Raiders at 91.3 percent. And I don't 9 recall what the average is with the Raiders included, so I can't 10 answer your question.11 Q. (By Mr. Harris) Okay. Let me rephrase it. 12 If we look at the Raiders, their sales in 1995 were --13 THE REPORTER: I'm sorry.14 Q. (By Mr. Harris) Their ticket sales in 1995 were 97.5 15 percent of the capacity in the stadium as you found it?16 A. Bear with me a moment. Just a second, please.17 Q. You might want to look at footnote 21 or footnote 22.18 A. Page? If you have it.19 Q. On page 22.20 A. Okay. 97.5. That's what I was just checking.21 Q. And whereas the rest of the NFL, you said it was about 22 91.3 percent?23 A. Sorry. If that's what I said, I'll stick with it.24 Q. And if we look at season ticket sales for that year, the 25 sales in Oakland were almost identical to the league average; is 26 that true?27 A. I don't --28 Q. Why don't you look at your report at page 6, figure number

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1 two. 2 A. Okay. 3 Q. Okay. Now does that -- did you record season ticket sales 4 as a percentage of capacity for the team -- for the Raiders and 5 the NFL as a whole from 1995 to 2001? 6 A. Yes. 7 Q. And does this refresh your recollection that Raider ticket 8 sales -- 9 THE REPORTER: I'm sorry.10 Q. (By Mr. Harris) Does this refresh your recollection that 11 Raider season ticket sales as a percentage of capacity were 73.4 12 percent in 1995; is that what you found?13 A. Yes.14 Q. And that the league average in 1995 was 73.9 percent?15 A. I have to check something. Do you mind waiting again.16 Q. No. Please go ahead. 17 A. These numbers are important. I want to make sure I give 18 you correct answers.19 Q. My question is, Is that what your report says on page 6 at 20 figure two, that's my first question.21 A. Well, there is a figure, and as noted in the report, there 22 is a 73.4 percent calculation of season ticket capacity. There 23 is also a footnote, which says that using the game by game 24 capacities, that figure is actually 72 percent. 25 So comparing that to the league excluding the Raiders 26 which was 73.9. The Raiders are more different than 73.9 than 27 they were according to the chart using the end of season 28 capacities.

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1 Q. By 1995 even with regard to season ticket sales is pretty 2 close to the NFL average. 72 versus 73 percent as you found it? 3 A. Well, I wouldn't round 73.9 down to 73 as you just stated, 4 but 72 versus 74, and then I would say that's still under but 5 close. 6 Q. But your figure two on page 6 of your report says 73.4 on 7 the one hand -- 8 THE REPORTER: I'm sorry. 9 Q. (By Mr. Harris) Your figure two on page 6 of your report 10 says 73.4 percent on the one hand and 73.9 on the other, 11 correct?12 A. Yes. And you should read the report in light of the 13 footnote that gives another depiction of season tickets to 14 capacity using game by game capacities, which I think we agreed 15 the deposition were more accurate than was my testimony.16 Q. Okay. So it comes out a little different if you do it 17 game by game instead of as season as always?18 A. Well, there are important differences. Game by game 19 capacity can vary. And in case of the Raiders, the capacity did 20 increase during the course of even the first season.21 Q. Okay. That's because there was a baseball configuration 22 for the first games of the season, and that there was a football 23 configuration with an expanded capacity thereafter, correct?24 A. I think that's most of the answer, but there is also game 25 by game changes in capacity due to seats that are broken or 26 seats which are behind a television camera at one game that 27 aren't behind another television camera. Yeah, that's close.28 Q. And speaking of stadium capacity, you understand that

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1 between 1995 and 1996, there was a significant expansion of the 2 stadium capacity, correct? 3 MR. DREYER: Object as vague as to the use of the word 4 significant? 5 Q. (By Mr. Harris) Well, increased by about 10,000 seats, 6 true? 7 A. It was a 10,000 seat increase between those two years, 8 yes. 9 Q. You found the average capacity in 1995 to be 52,815?10 MR. DREYER: Average?11 Q. (By Mr. Harris) Or thereabouts? If you look again at 12 page 22, footnote 21?13 MR. DREYER: When you say average, Mr. Harris, you are 14 talking about average for the Raiders as opposed to the league, 15 right?16 Q. (By Mr. Harris) Talking about the average capacity of the 17 Oakland Coliseum. Average between baseball configuration on the 18 one -- or average for home games that year?19 A. I think you are reading correctly, but I better check. 20 Which footnote is it?21 Q. Footnote 21.22 A. Okay. I don't recall your number, but the number that I 23 calculated is a weighted average was 52,815.24 Q. Yes, that was my number. 25 While you are there, the average capacity in 1996, you 26 found to be 62,707, right?27 A. Yes.28 Q. So that's an increase in capacity of almost 20 percent; is

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1 that true? 2 A. It looks about right to me, yes. 3 Q. And there was also an increase in PSLs available from 4 about 45,000 to about 55,000, true? 5 A. I think they all did have PSLs although I'm not a hundred 6 percent sure on that. I think that all the new seats did have a 7 PSL product attached to them. 8 Q. That's also an increase of about 20 percent, true? 9 A. Yes.10 Q. Now, to demonstrate excess demand for '96, at a minimum, 11 you would have to sell the 55,000 PSLs, correct, to demonstrate 12 excess demand for 1996?13 A. Yes.14 Q. And you would also have to show that you sold all the 15 additional day of game tickets up to the total amount of over 16 62,000, correct?17 A. No, not correct.18 Q. So you could have excess demand even though you didn't 19 sell out the 62,000 seat stadium?20 A. Well, I've never adopted one hundred percent of capacity 21 as a reasonable definition of sellout.22 Q. I'm sorry. 95 percent of that total of 62,000, correct?23 A. Well, what's the question?24 Q. The question is, You wouldn't only have to sell the 55,000 25 PSLs, but an additional, say, 5,000 or so tickets up to the 95 26 percent of the capacity of the stadium?27 A. To have excess demand as I define it, you need a strong 28 season ticket base and a sellout.

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1 Q. In fact, there would be a waiting list if there was excess 2 demand, correct? 3 A. That's true. 4 MR. HARRIS: Your Honor, it's about 4:30, this would be a 5 breaking point. 6 THE COURT: Indeed it is. You folks have a nice evening. 7 We will see you at 9:00 tomorrow. Observe the rules. 8 (Evening recess) 9 ---oOo---

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Dubin Testimony - AM (pp 5282-5359)page 5282

1 THURSDAY, MAY 22, 2003 2 MORNING SESSION 3 ---oOo--- 4 The matter of the OAKLAND RAIDERS, a California Limited 5 Partnership, and A.D. FOOTBALL, INC., a California Corporation 6 versus OAKLAND-ALAMEDA COUNTY COLISEUM, INC.; EDWIN O. DESILVA; 7 and ARTHUR ANDERSEN LLP, Defendants, Case No. 97AS06708, came on 8 regularly this day before HON. RICHARD K. PARK, Judge of the 9 Superior Court of California, for the County of Sacramento, 10 Department #39 thereof.11 The Plaintiffs OAKLAND RAIDERS, a California Limited 12 Partnership, and A.D. FOOTBALL, INC., a California Corporation 13 were represented by ROGER A. DREYER, JONATHAN W. HUGHES, 14 Attorneys at Law, County of Sacramento, State of California.15 The Defendants OAKLAND-ALAMEDA COUNTY COLISEUM, INC.; 16 EDWIN O. DESILVA were represented by JAMES J. BROSNAHAN, ARTURO 17 GONZALEZ, JOHNATHAN E. MANSFIELD, MELISSA JONES, Attorneys at 18 Law, County of Sacramento, State of California.19 The Defendant ARTHUR ANDERSEN was represented by FREDERICK 20 S. FIELDS, STAN G. ROMAN, Attorneys at Law, County of 21 Sacramento, State of California.22 The following proceedings were then had, to wit:23 THE COURT: Before the jury comes in, I want to know if 24 there is still an issue with respect to production of his 25 interim reports.26 MR. HARRIS: I mean it's still an issue. I'm not sure how 27 I would have time to use it at this point not having received it 28 up until now, but we have withdrawn that.

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1 THE COURT: I was actually going to deny it anyway because 2 of the reasons in their brief. It does require you to file a 3 written motion, and that was never done until virtually two days 4 before he began his testimony. 5 MR. HARRIS: Okay. 6 MR. DREYER: In that regard, Your Honor, I don't want 7 there to be any inference. I mean he has already talked about 8 it, but I don't want any inference drawn. His asserted 9 privilege, so I would ask that -- I'd ask him not to go into the 10 issue at all. And he already has relative to reports and 11 discussions.12 THE COURT: That was all fair game. He didn't go into any 13 privileged issues. 14 With respect your request for judicial notice.15 MR. DREYER: Yes, sir.16 THE COURT: I don't think the authority you cited apply at 17 all. I would think this was mostly -- the problem with your 18 documents is that I have no basis to conclude that there are 19 sources that are reasonably reliable. They are from the teams, 20 and I don't know how the teams gathered those statistics, or 21 what they do with them, then they transmit them to the NFL or 22 what the NFL does with them. 23 It's totally different than looking at some of the issues 24 that you cited me to in those two cases, so I think if you are 25 going to put those in for the truth of those statistics, you are 26 going to have to find another way to do it.27 MR. DREYER: I have another way. It's just -- it seems 28 like a substantial waste of time and effort, but I mean I'm

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1 certain I can do it. I will do it. I frankly don't know why 2 Mr. Harris objected because it's information that he needs as 3 well. I'll go the long route. I mean no one disputes the 4 capacity numbers. That's fine. 5 THE COURT: All right. Then are the decks cleared? 6 MR. DREYER: We have -- I think the decks are cleared, but 7 just give the Court a lay of the land, so to speak. 8 After Dr. Dubin, we have the Miller video, which we've 9 timed it. An hour and 56 minutes, something like that, I think. 10 And we also have a couple of motions that we can clean up, 11 and the Court has gotten our -- of course, our e-mail 12 correspondence from the other side regarding exhibits. 13 The reason I bring all this up is I -- Mr. Reich from 14 Arthur Andersen is not available this afternoon according to 15 Mr. Fields, so that's going to be it for us. 16 If the Court -- and I have no idea how long Dr. Dubin's 17 cross and redirect is going to take. I just want you to know 18 how long the Miller tape was. Whether you wanted to go deep in 19 the morning and then let them go like at 12:30. I don't know 20 whether that's doable, and then in the afternoon I just want you 21 to know what we have so that you can decide however you want to 22 do it.23 THE COURT: I'm wide open to all possibilities. I do have 24 to tell you that I have a meeting with the Board of Supervisors 25 that I absolutely must attend at four o'clock today. I have to 26 quit by no later than ten to four to get over there.27 MR. DREYER: I'm certain we're going to be done well 28 before then, and then it's just a function of -- we've a motion.

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1 I think that's been out there for a while. We are calling -- I 2 disclosed next week's calendar to counsel. 3 And we are calling, if we have the opportunity time wise, 4 we probably will be calling Mr. Allen and Ms. Trask who we were 5 supposed to call this week but because of the scheduling issues, 6 we did not. They know she is in the mix coming up. 7 So the Ovitz motion needs to be decided on when we have a 8 chance. We just got -- 9 MR. BROSNAHAN: You are adding Amy Trask for next week?10 MR. DREYER: No, I'm not. 11 MR. BROSNAHAN: Oh, I misunderstood.12 MR. DREYER: She's in the mix coming up.13 MR. BROSNAHAN: For a week after or --14 MR. DREYER: I just think that the Ovitz motion --15 THE COURT: I have read the Ovitz motion. You filed it 16 some weeks ago. I've just received the opposition.17 MR. BROSNAHAN: Yes, Your Honor.18 THE COURT: Before I even read that yet, I will be happy 19 to take a look at that. It does not look like it's time 20 consuming issues to me.21 I don't know about the exhibits, whether we have much of 22 an issue there. There is a finite number of exhibits there. 23 That's not going to take very long to go through them even if 24 all are disputed. 25 Mr. Brosnahan, you are standing up, is there something you 26 want to say?27 MR. BROSNAHAN: Only because I will be sitting all day, 28 Your Honor, sorry. And also because my worthy opponent was

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1 standing. 2 THE COURT: Wanted to do parity to the argument. 3 MR. BROSNAHAN: It's like a twin pillar thing, Your Honor. 4 MR. DREYER: The fact that he would indicate that I would 5 be a twin pillar to someone who is as phenomenal as he is. 6 MR. BROSNAHAN: Holding up the administration of justice. 7 THE COURT: He actually called you a worthy opponent. 8 MR. DREYER: That's not what he has been saying anyway. 9 THE COURT: Well, what he says in other circumstances, 10 huh? 11 MR. DREYER: I don't know. I'm sure he is very polite.12 MR. BROSNAHAN: I am? 13 MR. DREYER: I'll sit down so we get moving, Your Honor.14 MR. BROSNAHAN: How did we get into this, Your Honor?15 THE COURT: I don't know, but we are going to get out of 16 it by bringing the jury in. 17 MR. BROSNAHAN: Good. For that I'll stand.18 THE COURT: Oh, the jury is in. 19 Welcome back, ladies and gentlemen. 20 Ms. Swart, are you feeling better today?21 JUROR NO. 4: Yes.22 THE COURT: Better and better everyday? 23 I told the lawyers we have to quit no later than ten 24 minutes to four today because I've got a meeting I just 25 absolutely, positively have to be at four o'clock. And none of 26 you would be upset if we adjourned even earlier than that, would 27 you?28 THE JURORS: Oh.

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1 THE COURT: It is going to be a long weekend for you. 2 Four days. Pretty cool? 3 All right. Let see what we can do to get these folks out 4 of here a little earlier today. 5 MR. HARRIS: Thank you, Your Honor. 6 CROSS-EXAMINATION (RESUMED) 7 By GEORGE HARRIS, Counsel for Defendants, Oakland-Alameda County 8 Coliseum & Edwin O. DeSilva: 9 Q. Good morning, Professor Dubin. 10 A. Good morning, Mr. Harris.11 Q. Professor Dubin, you are an economist, true?12 A. Yes, sir.13 Q. And a statistician?14 A. Yes.15 Q. We could say you are an empiricist?16 A. Yes.17 Q. What you do is you look at hypothesis, you test it against 18 the real world?19 A. Yes.20 Q. And you don't rely on subjective impressions, but you try 21 to test things empirically?22 A. I give weight to -- sometimes to statements. I give 23 weight to my own understanding of matters, and sometimes I can't 24 quantify them, but I give weight to them.25 Q. But if you can, you try to quantify things?26 A. I do try to quantify things.27 Q. Now, as part of your work on the case, you reviewed 28 certain documents given to you by counsel, true?

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1 A. Yes. 2 Q. And they included statements about the progress of PSL 3 sales in the summer of 1995, correct? 4 A. Yes. 5 Q. They included a July 20th press release. We've seen a lot 6 of it here. That was one of the things you looked at, true? 7 A. Yes. 8 Q. And some ads for preseason games published in August? 9 A. There were some ads, yes.10 Q. In fact, you referenced those particular documents, the 11 July 20 press release and those ads in your report?12 A. Yes.13 Q. And you concluded that those statements that you looked at 14 were consistent with excess demand, true?15 A. Yes.16 Q. You couldn't conclude there was excess demand in the 17 summer of 1995, but you said those statements were consistent 18 with excess demand, correct?19 A. Well, I said had the representations been true, it was my 20 opinion that there would be excess demand. There was 21 consistency, yes.22 Q. And you concluded they were consistent with excess demand 23 not only for the approximately 52,000 seat stadium in 1995, but 24 also for the expanded 62,000 seat stadium in 1996, true?25 A. Yes.26 Q. Now, in reaching that conclusion, you haven't done any -- 27 you haven't done any quantitative analysis to support that 28 conclusion, correct?

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1 A. That's actually incorrect. 2 Q. I would like to play a clip from Mr. Dubin's deposition. 3 And it's at page 64, lines 12 through 17. 4 A. Just to clarify, Mr. Harris. At the time of my 5 deposition, I had not done such an analysis. 6 Q. Well, Professor Dubin, at the time of your deposition, you 7 said, in fact, that the conclusion there was sufficient demand 8 to fill this expanded stadium was not something you had done any 9 quantitative analysis with regard to, correct?10 A. A couple of months ago, that was true, yes.11 Q. You haven't done any quantitative analysis of the impact 12 of that July 20th press release; is that true?13 A. I don't understand the question.14 Q. You haven't done any quantitative analysis to measure 15 excess demand in the summer of 1995 --16 THE REPORTER: I'm sorry. 17 Q. (By Mr. Harris) -- excess demand in the summer of 1995 as 18 indicated by that press release and those ads?19 A. I'm not sure I understand the question. I have testified 20 -- I testified that I have done quantitative analyses about how 21 excess demand persists from period to period.22 Q. And that's what we've looked at with what happens with 23 regard to other NFL teams, correct?24 A. Yes.25 Q. And with regard to those other NFL teams, you haven't 26 looked at statements made by those teams with regard to ticket 27 sales, true?28 A. I have looked at statements made by other teams with

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1 respect to those ticket sales. 2 Q. Well, have you quantified in any way a relationship 3 between press releases and ads released by other teams and 4 actual demand for tickets by those teams? 5 A. Well, I'm talking about different sorts of statements than 6 press releases. 7 Q. Well, I'm talking about the press release and the ad that 8 you relied on here to conclude that they were consistent with 9 excess demand?10 A. Well, with all respect, I mean presumably the ads 11 applicable to the Raiders would be different than the ads that 12 someone else might be taking out somewhere else. Teams make 13 statements about their state of excess demands all the time.14 Q. But you haven't tried to take comparable statements to the 15 ones you looked at here and determine whether teams were or were 16 not in excess demand elsewhere, true?17 A. I mean how could one find a comparable statement unless it 18 was a similar situation with the same type of misrepresentation.19 MR. HARRIS: Well, I'd move to strike the last statement 20 as to misrepresentation. 21 Q. (By Mr. Harris) You are not here to testify about whether 22 representations were true or not, are you?23 A. Well --24 THE COURT: The answer is actually nonresponsive. I will 25 strike the answer. 26 Why don't you ask the next question.27 Q. (By Mr. Harris) So the answer to my question is, 28 Professor Dubin, you haven't quantified a relationship between

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1 such statements and actual demand in other NFL situations, 2 correct? 3 A. I think that's correct. 4 Q. The documents that you relied on, they didn't say that the 5 1996 season was sold out, true? 6 A. No, they didn't. 7 Q. And they didn't say that all of the PSLs had been sold out 8 for 1996? 9 A. There were documents that said by Thanksgiving, the 10 stadium for '96 PSLs for that stadium would be sold out.11 Q. That they expected that by Thanksgiving, PSLs for 1996 12 would be sold out, correct?13 A. They expected that, and I gave that weight in determining 14 the amount of excess demand that was present in 1995.15 Q. And that was a prediction about the future?16 A. It's a prediction about the future. It's also a statement 17 about the present. It's a statement about the strength of 18 demand in 1995 as well as a statement about what someone 19 expected the state of affairs to be in 1996.20 Q. But the statement about the present was that 80 percent of 21 the PSLs for 1996 had been sold, correct?22 A. I think it was 85 percent, and -- and it's also a 23 statement about the present. To talk about the -- to have an ad 24 which says the stadium is sold out in the future, and this may 25 be your last chance to see the Raiders for ten years is a 26 statement about the present state of demand.27 Q. And the expectation as to what will happen before 28 Thanksgiving, that's a prediction about the future?

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1 A. I just said it's a prediction about the future, and it's a 2 statement about the present. 3 Q. I'd like to show you what we've marked as Exhibit 49. 4 It's in evidence. And this is the July 20th press release. 5 Does that say 80 percent of the PSLs for 1996 or 85 6 percent, Professor Dubin? 7 A. Well, the 80 percent that's been referred to here is 80 8 percent of the seats in the expanded stadium. I thought we were 9 talking about the PSLs sold in 1995, which is 85 percent under 10 the representation.11 Q. No, I was --12 A. So we were just maybe --13 Q. Maybe we misunderstood each other. I'm talking about 14 1996, the expanded stadium. Representation was that 80 percent 15 of the PSLs for 1996 had been sold, correct?16 A. Well, what they are saying is that 80 percent -- they are 17 saying that some number of PSLs were sold. Now, which 18 represents eighty percent of an expanded stadium. It's not 19 saying anything about, I think, what actually will sell. It is 20 talking about the present.21 Q. Now, you understand that at that time as of July 20th, 22 there were only applications for PSLs with 25 percent deposits, 23 correct?24 A. I read that, yes.25 Q. You understand that that was also true as of August 7th of 26 1995?27 A. I think that's the case, yes.28 Q. Now, based solely on a statement in the summer of 1995

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1 that there were 44,700 PSLs with a 25 percent deposit, that 2 wouldn't be enough for you to conclude that the statement was 3 consistent with excess demand, true? 4 A. No. I disagree with that. 5 MR. HARRIS: I'd like to play from Mr. Dubin's deposition 6 at page 232, lines 2 through 11, and 15 through 16. 7 MR. DREYER: 232 -- 8 MR. HARRIS: Two through 11, and 15 through 16. 9 MR. DREYER: One moment, Your Honor. If I could read it. 10 I would just simply think this should include the 11 clarifying by the Warriors. Page 232. I have no objection as 12 long as we do that.13 MR. HARRIS: I think the question and then an answer.14 THE COURT: Someone give me a copy of the deposition 15 transcript.16 MR. HARRIS: That's the highlight part here. This one 17 here, if it makes it easier. 18 THE COURT: I think the question is clear without the 19 question from counsel, so you may read the requested portions of 20 his depo.21 (Whereupon videotaped deposition was played)22 Q. -- an excess demand situation. So am I correct to assume 23 that a representation that 45,000 applications had been received 24 for PSLs accompanied by 25 percent deposits for the PSLs would 25 not be enough to be consistent with excess demand?26 A. I don't think I could conclude that there was excess 27 demand based on only that piece of information.28 Q. Do you think anyone could reasonably conclude that there

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1 was excess demand based upon the number of applications 2 accompanied by partial payments? 3 A. I don't know what anybody could do. I couldn't. 4 (Whereupon videotaped deposition was stopped) 5 Q. (By Mr. Harris) Now, Professor Dubin, if you knew as of 6 August 7th, 1995 that 45,000 PSLs had been sold and all luxury 7 suites available in 1995 had been sold, that also wouldn't be 8 enough by itself to conclude that there was excess demand 9 sufficient to sell out the expanded stadium in 1996, correct?10 A. I think these are probabilistic opinions, and these are 11 statements of consistency.12 MR. HARRIS: Your Honor, I would like to play from 13 Professor Dubin's deposition at 62, 18 through 63, 24.14 Starting at Page 62, 18 and going through 63, 24.15 MR. DREYER: I have no objection, Your Honor.16 THE COURT: Proceed.17 (Whereupon videotaped deposition was played).18 Q. All right. Your conclusion is if certain representations 19 had been true, certain things would have followed -- a highly 20 probable sellout in 1996 and every subsequent year. Now I --21 (Whereupon videotaped deposition was stopped)22 (Whereupon videotaped deposition was played)23 Q. All right. Your conclusion is if certain representations 24 had been true, certain things would have followed -- a highly 25 probable sellout in 1996 and every subsequent year. Now I want 26 to define those representations. And I'm asking you first to 27 define those representations as having been limited to a 28 representation that 45,000 PSLs had been sold as of August 7th

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1 of 1995. Would you reach the same conclusion? 2 MR. WINTHROP: Objection. Can you be more specific as to 3 when the representation, which one you're referring to? 4 MR. HARRIS: I just said August 7th, 1995. 5 MR. WINTHROP: Made on August 7th or as of August 7th? 6 What was your -- 7 MR. HARRIS: Q. That's the state of one's knowledge as of 8 August 7th, 1995. 9 A. I'm not sure I can reach, with just that one sole piece of 10 information, any conclusions about what would happen in 1996.11 Q. Okay. Add to that piece of information that all luxury 12 suites available in 1995 had been sold. Could you reach that 13 conclusion?14 A. Luxury suites for '95 had been sold? 15 Q. Yes.16 A. I'm still not sure that I have a sufficient set of 17 conditions to reach the opinion that '96 would be sold out, 18 based on those two representations.19 Q. Okay. Based on these representations -- 45,000 PSLs sold 20 and 84 luxury suites sold -- would that be sufficient for you to 21 reach those conclusions?22 A. Not in themselves, no.23 (Whereupon videotaped deposition was stopped)24 Q. (By Mr. Harris) Professor Dubin, you are aware that on 25 and after July 20th of 1995 there were articles stating that 26 applications for PSLs were below capacity; is that true?27 A. There may have been.28 Q. Have you reviewed any of those?

page 5295




1 A. I might have. I don't recall. 2 Q. Now, you said you reviewed the deposition testimony of 3 Harry Howell; is that true? 4 A. Yes. 5 Q. Did you review the deposition testimony of Bill Futterer? 6 A. No, I did not. 7 Q. That's not something that counsel gave to you to review? 8 A. No. 9 Q. Now, one thing that you attempted to study was the effect 10 of publicity about PSLs on ticket sales or attendance, true?11 A. Yes.12 Q. And you thought that perhaps bad publicity about PSLs 13 might negatively affect the demand for ticket products?14 A. That's not what I said.15 Q. You didn't think that that might be true?16 A. I think I said that there could be a publicity effect. I 17 didn't know whether it would be positive or negative.18 Q. Well, did you say that you thought bad publicity possibly 19 about PSLs could have an effect -- a negative effect on the 20 demand for ticket products?21 A. I can't recall I said it. I recall saying it could have a 22 positive or a negative effect. An effect means positive or 23 negative.24 Q. Well, I would like to play 243, 5 to 9.25 MR. DREYER: I have no objection, Your Honor.26 THE COURT: Proceed.27 (Whereupon videotaped deposition was played.)28 Q. What was your hypothesis when you started that, when you

page 5296




1 looked for those articles? 2 A. I didn't really have one. I thought that bad publicity 3 possibly could, could have had an effect on, a negative effect 4 on demand for ticket products. 5 (Whereupon videotaped deposition was stopped) 6 Q. (By Mr. Harris) You thought you might be able to quantify 7 such an effect? 8 A. Yes. 9 Q. But you weren't able to find any support for that idea, 10 correct?11 A. I think I testified that I couldn't find any consistency 12 in the publicity as I was attempting to measure it with let say 13 ticket demand.14 Q. So you weren't able to find any significant effect of 15 newspaper articles about sales of PSLs on tickets sold, pricing 16 or attendance, true?17 A. I'm not sure I looked at every -- all three of those 18 categories. I think I looked at tickets sold.19 Q. So you weren't able to find any effect on tickets sold?20 A. Nothing consistent.21 Q. Now, Professor Dubin, you didn't look for articles 22 suggesting that the Raiders wanted to move from Oakland, true?23 A. No, I didn't.24 MR. DREYER: Objection, Your Honor. Can we approach for 25 just a moment, please. 26 (Discussion between Court and counsel unreported herein).27 THE COURT: Proceed as we've discussed.28 Q. (By Mr. Harris) So, Professor Dubin, other than the

page 5297




1 articles with regard to PSLs, you didn't look for any other 2 kinds of articles and what effect they might have on PSLs, true? 3 A. I don't think I did, no. 4 Q. Now, your -- your opinion with regard to excess demand 5 relies in part on the work of Gary Becker; is that right? 6 A. Yes. 7 Q. Now, Mr. Becker tried to explain why successful 8 restaurants, plays, sporting events, other activities didn't 9 raise prices even with persistent excess demand; is that 10 correct?11 A. I'm not sure he tries to say that in such cases prices are 12 not raised. That's not the point of his article at all.13 Q. Well, did he say in his article a note on restaurant 14 products --15 THE REPORTER: I'm sorry.16 Q. (By Mr. Harris) -- in his article a note on restaurant 17 pricing that he was trying to explain why many successful 18 restaurants, plays, sporting events and other activities do not 19 raise prices even with persistent excess demand?20 A. I don't recall. I mean he may have said that. I don't 21 recall that being the point of the article.22 Q. Well, in fact, he found that it was easier to go from 23 excess demand to excess supply and vice versa, true?24 A. He said that it is possible that equilibrium could be less 25 stable in one direction than another.26 Q. And less stable in the direction of going towards excess 27 supply, true?28 A. That's what he said in certain conditions that might be

page 5298




1 true, yes. 2 Q. And he also said that that helps explain why management 3 does not suddenly or frequently expand capacity in excess demand 4 markets? 5 A. That was one explanation that he offered for why capacity 6 would not be expanded under certain conditions, yes. 7 Q. And in the case of a football franchise expanding capacity 8 would mean adding seats to the stadium, true? 9 A. Generally, yes.10 Q. And that could affect whether you continue to be in a 11 state of excess demand?12 A. It could hypothetically, yes.13 Q. So there could be excess demand for a 50,000 seat stadium 14 and not excess demand for a 70,000 seat stadium?15 A. That's hypothetically correct, yes.16 Q. Or for a 60,000 seat stadium?17 A. Again, it's possible.18 Q. And you haven't done anything to track the effect of 19 stadium expansion on demand?20 A. Oh, yes, I have. I didn't do it before my deposition, but 21 I have done such empirical study.22 Q. Now, under Becker's theory, one wouldn't want to undergo 23 an expansion in a fragile equilibrium situation, true?24 A. That's correct.25 Q. And you wrote a book chapter on the demand for NFL 26 football, correct?27 A. Yes.28 Q. And that was published in 2001?

page 5299




1 A. Yes. 2 Q. And what became the book chapter or something similar to 3 it was originally part of your report in this case, correct? 4 A. I'm actually not sure what came first. The report or the 5 book chapter, but I think your sequence is how I recall it. 6 Q. And that's the part we talked about yesterday that was 7 taken out of the report because the lawyers suggested it didn't 8 belong in the report? 9 A. Since I don't follow the question, maybe it's helpful 10 to --11 Q. I'm sorry. Let me rephrase it. It is confusing.12 This part of the report was taken out of the report, 13 correct?14 A. It was a part of the report that was in my book chapter 15 that's not in the report.16 Q. And that was after your discussion with counsel?17 A. Yes.18 Q. Now, one of the sections in your book chapter was about 19 Becker's model, correct?20 A. Yes.21 Q. And you wrote this in the conclusion to that section? 22 Tell me if I am wrong. 23 Management does not want to expand capacity in a fragile 24 equilibrium situation. When consumers are fickled, it may be 25 more sensible to avoid a possible costly expansion that leaves 26 the stadium undersold and underwhelmed. And ill-time for 27 expansion could be equally disastrous. 28 Did you write that?

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1 A. I did write that. 2 Q. Now here the Raiders were sold out in terms of ticket 3 sales for 1995, correct? 4 A. Yes. 5 Q. That was 97.5 percent of stadium capacity within your 6 definition of a sellout? 7 A. Yes. 8 Q. And in 1996 the stadium was expanded by 10,000 seats? 9 A. Yes.10 Q. By about 20 percent?11 A. Yes.12 Q. And ticket sales in 1996 were actually greater in absolute 13 numbers than they were in 1995?14 A. That's for the regular season only.15 Q. For the regular season, tickets sales in 1996 were 16 actually greater in absolute numbers than in 1995?17 A. I believe if you include preseason, that fact is no longer 18 true. But for regular season, there was a marginal increase in 19 ticket sales. 1995 and '96.20 Q. But you no longer had a sellout because the stadium was 21 larger?22 A. By my definition, that's right.23 Q. Now, one, you agree that one of factors that affects 24 attendance is team performance?25 A. Yes.26 Q. And as part of your work on the case, you reviewed the 27 literature regarding NFL attendance as part of doing your work?28 A. Yes.

page 5301




1 Q. Your study follows the general approach of a 1974 article 2 by Roger Noll and a 1991 article by Welki and Zlaptopper? 3 A. That's as close as I can probably say it too. 4 Q. But that's true, you looked at Noll and Welki? 5 A. I wouldn't agree that I followed Dr. Noll's approach 6 because as I recall, his modelling setup was quite different. 7 He was using annual data. It was very different than mine. But 8 in spirit, my analysis was much closer to the setup in the Welki 9 paper.10 Q. Did you say in your report that I followed the general 11 approach of Noll, 1974 and Welki and Zlaptopper in 1991, 1999 in 12 specifying an empirical demand for NFL football?13 A. Yeah. I am just telling you now that my approach was 14 closer to one than to the other.15 Q. Okay. Appreciate that.16 Now, Noll concluded that the past record of a team was an 17 important factor in attendance?18 A. I think he did, yes.19 Q. And, in fact, he concluded that in a city of three million 20 people if the team could improve their record by 25 percentage 21 point, they could improve attendance by 23 percent?22 A. I don't recall.23 Q. Okay. Let's look at -- let's mark it Exhibit 2161.24 A. (Pause).25 Q. And if you could look at page 144 of the article under 26 "previous record". And if you look under the -- if you look at 27 that paragraph. 28 Does it refresh your recollection that Dr. Noll said that

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1 in a city of three million, one could increase average 2 attendance by 23 percent when there was a record increase of 25 3 percentage points? 4 A. I'm reading the line that says, In a city of one million, 5 a team that can improve its record by 25 percent -- 6 THE REPORTER: I'm sorry. Again. 7 THE WITNESS: I'm reading the sentence, In a city of one 8 million, a team that can improve its record by 25 percentage 9 points will draw 26,000 more fans during the season, an eight 10 percent increase over average attendance.11 Q. (By Mr. Harris) Please read the next sentence?12 A. In a city of three million, a similar improvement will add 13 over 77,000 fans, a 23 percent gain.14 Q. Twenty-three percent gain?15 A. I see that.16 Q. Do you know what the approximate population of the Bay 17 Area is?18 A. Could be in the millions. Five million maybe.19 Q. Now, you said you actually followed Welki and Zlaptopper 20 more than Noll, and they concluded, did they not, that economic 21 factors and the performance of the home team are the primary 22 determinants of game day attendance of NFL regular season games?23 A. Yeah, I think they said that. Both papers are about 24 attendance.25 Q. And you agree with that statement?26 A. No, I wouldn't agree with that.27 Q. Well, you conclude that additional sellouts following 28 initial sellouts are not completely independent from

page 5303




1 performance, true? 2 A. That's true. 3 Q. And you agree that better performance increases the 4 likelihood that a team will sell out the next year? 5 A. It has a modest effect, yes. 6 Q. Now I want to talk about your regression analysis. 7 It's very complicated. I hesitate to even talk about it, 8 but I do want to talk about it a little bit. 9 You studied certain factors to determine their correlation 10 with tickets sold as a percentage of capacity, true?11 A. Yes.12 Q. And --13 A. I would say partial correlation to be accurate, but, yes.14 Q. Well, the factors that you looked at included the home 15 team's winning percentage?16 A. Yes.17 Q. And the visiting team's winning percentage?18 A. Yes.19 Q. They also included whether it was raining, whether it was 20 a night game, whether it was a Monday game, true?21 A. Yes.22 Q. And they concluded the percentage in the metro area that 23 were black, Hispanic or white, that was one of your factors?24 A. Yes.25 Q. And they included the average ticket price per season?26 A. They being my models, my regression models?27 Q. That was one of the factors that you looked at? The 28 average ticket price per season?

page 5304




1 A. Yes. 2 Q. Now, for each of these, you determined what you call a 3 t-statistic. 4 THE REPORTER: I'm sorry. 5 MR. HARRIS: Like T hyphen statistics. 6 THE WITNESS: Yes. 7 Q. (By Mr. Harris) And if a t-statistic in your opinion is 8 less than 1.96, you can assume that the variable has no effect 9 on demand at 95 percent level of confidence. Did I get that 10 right?11 A. Can you say that again, so I can make sure you said it 12 right.13 Q. If a t-statistic is less than 1.96, you can assume that 14 the variable has no effect on demand at a 95 percent level of 15 confidence?16 A. That's not a completely accurate statement. It's 1.96 in 17 absolute value.18 Q. I'm sorry?19 A. 1.96 in absolute value.20 Q. So if you add an absolute value, then it's a correct 21 statement?22 A. Yeah, depending on where you add it.23 Q. Well, on the other hand, if the t-statistic is greater 24 than 1.96 --25 A. In absolute value.26 Q. -- in absolute value, then the variable does have a 27 statistically significant effect on demand at a 95 percent 28 confidence level?

page 5305




1 A. Statistically significant, yes. 2 Q. Now, of the factors that you looked at, the only ones that 3 had a t-statistic above 1.96 -- well, let me ask. 4 First of all, the home winning percentage had the highest 5 t-statistic of any of the factors that you looked at, correct? 6 A. It might have. I don't remember. 7 Q. Well, in fact, it had a t-statistic of 10.33, correct? 8 A. I don't have the report. Maybe if you can show me my 9 report, I don't have to guess.10 Q. Yes. Let's look at Exhibit 2125, which is your report.11 A. Okay.12 Q. And would you look at page 27 Table 4?13 A. Okay.14 Q. Does this refresh your recollection that home team's 15 winning percentage had a t-statistic of 10.33?16 A. It does, yes.17 Q. And now the only other factors that you looked at that had 18 a t-statistic above 1.96 were the average ticket price per 19 season including seat premium, the visiting team's winning 20 percentage and night game, true?21 A. No, that's not correct.22 Q. What else had a t-statistic greater than 1.96?23 A. Well, visiting team's winning -- 24 THE REPORTER: I'm sorry.25 THE WITNESS: I'm sorry. 26 Well, visiting team's winning percentage had a statistic 27 of 3.2. And the log of capacity divided by population, the 28 measure of the size of the capacity relative to the population

page 5306




1 in the area has a t-statistic in absolute value of 9.83. 2 Q. (By Mr. Harris) So we can take visiting team's winning 3 percentage off the list of those factors that you found 4 statistically significant? 5 A. No. We wouldn't want to take it off the list. I just 6 think the question you asked me was -- was visiting team's 7 winning percentage in the area of 10.3 or something I thought 8 the question was. 9 Q. No. The question was, Are those the only other factors 10 that had a t-statistic greater than 1.96? That was my question.11 A. Oh. Well, I see the constant term does. The price does. 12 The Raider home team. The Raiders' home team indicator has a 13 t-statistic in absolute value greater than 1.96. The percentage 14 of metro area residents, white, home team's winning percentage, 15 visiting team's winning percentage. The log of capacity divided 16 by population. Night game, and at a lower level of significance 17 but still have some statistical significance would be Monday 18 night games.19 Q. And the highest of those t-statistics was the home team's 20 winning percentage of 10.33?21 A. The biggest number is 10.33.22 Q. Now, you found a greater effect of team performance on 23 tickets sales in Oakland than in the league generally, true?24 A. Yes.25 Q. And we looked at -- you found a smaller effect in those 26 teams that you put in your A category?27 A. Yes.28 Q. But, of course, those were the teams that had sold out a

page 5307




1 number of consecutive years, true? 2 A. They had sold out consecutive years, yes. 3 Q. And so if they increased their winning percentage, that's 4 not -- and sold out the next year, that's not an increase in 5 ticket sales, true? 6 A. Well, look at it both ways. If a team stops performing, 7 their ticket sales don't go down either. 8 Q. But that's one reason why you are not going to find an 9 increase in ticket sales among those teams based on performance. 10 They are already selling out?11 A. The conclusion there is that the factors -- a very small 12 magnitude yet still statistically significant.13 Q. But according to your model --14 A. I haven't finished my --15 MR. HARRIS: I'm sorry.16 MR. DREYER: I would like him to be able to finish, 17 please.18 THE WITNESS: I lost my train of thought. I think the 19 conclusion is that a t-statistic that's -- that indicates that 20 that factor has a small magnitude but still statistically 21 significant means that an A team is insulated against 22 performance increases or decreases only in one direction -- in 23 your statement, is it impossible for a team to increase its 24 tickets sales.25 Q. (By Mr. Harris) Okay. According to your model, you found 26 that even a 50 percent increase in the home team's winning 27 percentage would only increase ticket sales by 4.1 percent, 28 true?

page 5308




1 A. I think that's right. 2 Q. But, in fact, in -- in the year 2000 when the Raiders went 3 from eight and eight to twelve and four -- first of all, that's 4 what you are talking about when you say 50 percent increase, 5 right? Eight and eight to twelve and four, that's an example of 6 a 50 percent increase in winning percentage? 7 A. Yes. 8 Q. And when that happened in the year 2000, Raiders' ticket 9 sales increased not four percent but thirteen percent, true?10 A. That's true.11 Q. And they went from 76.5 percent of capacity to 89.1 12 percent of capacity, correct?13 A. Tickets sold did that, yes.14 Q. And, in fact, your model under predicted the Raiders' 15 actual ticket sales for the 2000 season by nine percent?16 A. Yes, it did.17 Q. I would like to look at the history of the Raiders' 18 attendance from 1995 to 2002. 19 And you've talked about the fact that the 1995 season was 20 a sellout, correct?21 A. Yes.22 Q. And that in 1996 that attendance was about the same but 23 the stadium was larger, true?24 A. We've talked about how ticket sales were about the same 25 for regular season games.26 Q. I'm sorry. I meant ticket sales, not attendance. 27 And do you recall -- well, let me show you an exhibit, so 28 I won't test your memory. Let me show you Exhibit 2167.

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1 Do you recognize 2157? 2 A. No, I don't. 3 THE COURT: Is it 57 or 67? 4 MR. HARRIS: Two one five seven. 5 Q. (By Mr. Harris) I will represent these were among the 6 documents produced at your deposition. Is this not a 7 compilation of Oakland team season records that you did or 8 rather acquired as part of your work? 9 A. I see a Bates stamp that belongs to me. I don't know 10 where this document came from. That's why I don't recollect it. 11 It doesn't look like the same source of information that I have 12 used for winning percentages.13 Q. Well, do you recall what the Raiders' record was in 1995?14 A. I think it ends up at fifty fifty.15 Q. Eight and eight?16 A. Yes.17 Q. Do you know if they lost their last six games during that 18 season?19 A. I know they lost a bunch, yes. Maybe it could be six.20 Q. But then in 1996, attendance was about the same but their 21 records slipped a little bit in 1996, correct?22 A. I don't know what happened to attendance. I can look that 23 up, but I was talking about ticket sales this morning.24 Q. I was asking about the team's record in 1996. It slipped 25 a little bit to seven and nine, true?26 A. You were asking just a second ago about attendance.27 Q. If I did, I misspoke. I said the team's record in 1996 28 slipped to seven and nine, do you recall that?

page 5310




1 A. It could be. 2 Q. This document doesn't refresh your recollection? 3 A. I see it there. 4 Q. Okay. Now, in 1997, the team went to four and twelve. 5 That was not a good season on the field, true? 6 A. No, it's not very good. 7 Q. And if you look at this chart, that was their worst record 8 in about 30 years? 9 A. (Pause). I'm hesitating because I don't recall the 10 document I'm seeing that they had total percentages over one 11 hundred percent. I see in 1970, 2.6. So I don't really know 12 what the numbers mean.13 Q. We can look at the Raider Media Guide. I thought this was 14 your document. I'm not focusing on the percentage on this, but 15 on the one lost record. I think we can do the percentages 16 easily enough.17 But the four and twelve season, that was -- that was their 18 worst record in a long time in about 30 years, true?19 A. They were one and thirteen in 1962.20 Q. In 1962?21 A. Right. So in 30 years, maybe it was the worst, yeah.22 Q. In fact, that's almost 40 years before -- well, 35 years 23 before 1997, correct?24 A. That's correct.25 Q. Now, in 1998, the team went eight and eight, true?26 A. I see that.27 Q. But the attendance remained at about the same level, went 28 up a little bit?

page 5311




1 A. I don't recall what happened to attendance. I could look 2 that up in my report, if you would like. I've been talking 3 about ticket sales. 4 Q. I'm sorry. Ticket sales actually remained about the same 5 in 1998 or maybe went up slightly, correct? 6 MR. DREYER: Excuse me. Compared to 1997? 7 MR. HARRIS: Yes. 8 THE WITNESS: As a percentage of capacity from '97 to '98, 9 there was a slight increase. And I believe capacity was pretty 10 constant in that period, so there was a slight increase in 11 ticket sales.12 Q. (By Mr. Harris) And then in 1999, they went eight and 13 eight again, and attendance again actually went up slightly -- 14 I'm sorry -- ticket sales actually went up slightly, true?15 A. Let me just make sure I have this. In 1998, they are 16 eight and eight. And in 1999, they are eight and eight again. 17 And the attendance is going up. So the record stays the same, 18 and yet ticket sales -- I'm sorry -- I missed it this time. 19 Ticket sales are actually increasing but performance is exactly 20 the same. Are those the two years we are looking at?21 Q. Yes.22 A. I see that.23 Q. Now we've looked at those first five years, '95 through 24 '99, and not a winning season yet, true?25 A. Well, let me make sure I understand. 1997, they are four 26 and twelve, and they are at 72 percent of their capacity. In 27 1998, they go to eight and eight. A pretty big increase, and 28 they are still at 74 percent of their capacity, so ticket sales

page 5312




1 don't change. They don't correlate with performance, do they? 2 Q. Not when you don't have a winning season, I guess. 3 A. No, but I see a four and twelve in 1997. And then I see 4 eight and eight in 1998. And in 1997, they are at 72 percent. 5 And then they are at 74 percent the subsequent year. 6 Q. Maybe there is a different way to look at increases in 7 team performance than just absolute percentage increases, would 8 you agree? 9 A. Well, I think that's exactly a mistake Grabowski makes, 10 yes.11 Q. In fact, you didn't look at winning seasons on the one 12 hand versus non-winning seasons on the other, you didn't isolate 13 that?14 A. Are you talking about winning season defined as at the end 15 of the year after people have made their decisions to go to all 16 those games up to the end of the year? What the percentage end 17 up at?18 Q. How about the prior year when they are buying their 19 tickets at the beginning of the season, you didn't look at that?20 A. I did look at that.21 Q. And you didn't try to isolate whether there was an overall 22 winning percentage on the one hand or not, true?23 A. What's your definition of an overall winning percentage?24 Q. Not more than 50 percent?25 A. No. I think that would be inappropriate. The Raiders in 26 1995 were a great example. When fans are buying the tickets at 27 -- for those home games, the team is doing great, right? That's 28 when they are making decisions. And then all of a sudden,

page 5313




1 Raiders go on the road, they lose their, you said, six games. 2 How does it affect the ticket sales that had already been 3 purchased? There are no more home games. 4 Q. In fact, they lost their last four home games? 5 A. I thought I heard you say six. I agree with you, but four 6 sounds better to me. 7 Q. They lost their last six games, but that included their 8 last four home games, correct? 9 A. I don't recall. You could be right. I don't recall that.10 Q. But, in the first five years that they were back, you 11 would agree, they haven't had a winning year overall in those 12 five years, correct?13 A. We define a winning year as do they go over eight and 14 eight? They don't have a winning year.15 Q. And then in 2000 -- year 2000, they do, true?16 A. Yes.17 Q. And that's what we talked about a minute. 18 THE REPORTER: I'm sorry. Again.19 Q. (By Mr. Harris) And we looked at that a minute ago, that 20 attendance went up by 13 percent in the year 2000, correct?21 A. Well, I think ticket sales go up by about 13 percent.22 Q. Thank you for correcting me. 23 Ticket sales went up by about 13 percent in the year 2000, 24 correct?25 A. I think that's right, yeah.26 Q. And that was about 56,000 fans per game for regular season 27 games during the 2000 season?28 A. You are talking about the average size of the stadium or

page 5314




1 what? 2 Q. No. The average attendance at Raider games in the year 3 2000 was about 56,000 fans per game? 4 A. Why are we talking about tickets sales? We are talking 5 about attendance. 6 Q. Ticket sales and attendance for Raider games in the year 7 2000 averaged over 56,000, correct? 8 A. I have to get a calculator, but I think that's right. If 9 you are talking about 90 percent of the -- 90 percent was of the 10 stadium's capacity -- 90 percent. Would probably be about 11 56,000 tickets sold.12 Q. And the following year 2001, they also had a winning 13 record, true?14 A. Yes.15 Q. Went ten and six?16 A. Yes.17 Q. And ticket sales continued to go up?18 A. They went from 89.1 percent to 90.8.19 Q. Okay. And attendance also went up?20 A. But that's in the period where performance got worse from 21 2000 to 2001. Performance was twelve and four, attendance six, 22 yet, ticket sales increased.23 Q. But it was still a winning season?24 A. Oh, okay.25 Q. A successful season?26 A. But it wasn't as successful.27 Q. Well, ticket sales went up. In fact, they were close to 28 the NFL average of 93 percent, true?

page 5315




1 A. NFL average excluding the Raiders according to my report 2 for ticket sales is a percentage of capacity was just under 93 3 point -- just underneath 93 percent of -- 92.8 percent. 4 Q. The Raiders in that year, the Raiders' attendance -- I'm 5 talking about attendance as percentage of capacity went up to 6 93.5 percent, very close to the NFL average of 94.1 percent, 7 true? 8 A. Now we are 93.5 is the percentage of attendance as a 9 percent of capacity, and it's below the -- I want to make sure I 10 understand the question. It's below the percentage in -- for 11 the rest of the league, excluding the Raiders.12 Q. 93.5 percent on one hand, 94.1 percent on the other?13 A. Pretty much the same.14 Q. Now, and then in 2002, this past season, Raiders continued 15 to have good performance on the field, correct?16 A. They do.17 Q. And by your criteria, the criteria that you have used to 18 develope your statistics, 2002 was a sellout season for the 19 Raiders?20 A. No. I don't think that's right. I think 2002 -- I have 21 to find the footnote. Footnote 22 on page 22 for 2002, the 22 Raiders, average ticket sales relevant to capacity was 93.3 23 percent, which is lower than 95 percent; so therefore, not a 24 sellout. Even in the fantastic year.25 Q. I would like to play from Professor Dubin's deposition on 26 201, lines 11 through 19.27 MR. DREYER: Eleven through 13?28 MR. HARRIS: Eleven through 19.

page 5316




1 MR. DREYER: No objection. 2 (Whereupon videotaped deposition was played) 3 Q. And they didn't just increase ticket sales, they went to a 4 sellout scenario? 5 A. They sold out for the season, but not every game was sold 6 out. But yes, by my criteria it was a sellout, it was a 7 successful year. 8 Q. So in 2002 if we continued this chart through 2002, we'd 9 show another sellout scenario for the Raiders in 2002?10 A. I think that's correct, yes.11 (Whereupon videotaped deposition was stopped)12 THE WITNESS: I clearly misspoke.13 Q. (By Mr. Harris) You made a mistake?14 A. Absolutely. And that's why I think I said "I think" 15 during the deposition.16 Q. So, in fact, it was 93.3 percent, not 95 percent. That's 17 your --18 A. Well, it says it right there. I just must have 19 misremembered the number. 20 Q. Now, official NFL statistics for 2000 season haven't yet 21 been released, true?22 A. Oh, I think the 2000 --23 Q. Oh, did I say 2000? For 2002 have not been released yet, 24 correct?25 A. I don't think they have been released.26 Q. Are you aware of the Sports Business Journal as a source 27 of NFL statistics?28 A. Yes.

page 5317




1 Q. Is that a source that you have looked at as part of your 2 work? 3 A. It's a source I've compared to official statistics on 4 several dimensions, yes. 5 Q. I would like to show you Exhibit 2159. 6 A. Thank you. 7 Q. Do you recognize Exhibit 2159? 8 A. I think I've seen this, yes. 9 Q. Are these -- is this something that you collected from the 10 Sports Business Journal web site as part of your work?11 A. I don't know if I collected it from the Sport Business 12 Journal or someone else did and sent it to me.13 Q. But one way or another, it's something that made its way 14 into your workpapers?15 A. That's true.16 Q. And it shows NFL ticket sales for the 2002 regular season, 17 correct?18 A. Yes. It says it is showing ticket sales, but I believe 19 they reported attendance.20 Q. Does it show -- it says ticket sales, true?21 A. I know what it says, but I don't think Sports Business 22 Journal is a source of ticket sales information. I think 23 they've got their title wrong.24 Q. Does it show 96 percent as a percentage of capacity for 25 the Oakland Raiders in 2002?26 MR. DREYER: Object, Your Honor. It's hearsay.27 THE COURT: Sustained.28 MR. DREYER: And I would object to Mr. Harris reading

page 5318




1 hearsay when he knows it's hearsay. 2 THE WITNESS: What's the question? 3 MR. HARRIS: You don't have to answer that one. 4 THE WITNESS: Okay. 5 Q. (By Mr. Harris) The -- this document shows -- it says 6 ticket sales, but it shows some sort of statistics for all the 7 teams in the NFL in 2002, correct? 8 A. Well, you know some sport really makes a difference to me. 9 I find the Sports Business Journal to be highly unreliable. I 10 made various comparisons to the official statistics and found 11 variations.12 Q. Let's --13 A. And I believe this title is incorrect as well.14 Q. You believe it should be attendance instead of ticket 15 sales?16 A. And commonly made mistakes, but an important one.17 Q. I'd like you to -- but it shows a comparison between the 18 different teams in the NFL, correct?19 A. For something.20 Q. For something. Let's assume that's attendance.21 A. Okay. 22 Q. And among the teams that you put in your A category were 23 the Jacksonville Jaguars, correct?24 A. I would have to see the table to refresh my recollection.25 Q. That would be Exhibit 429?26 A. Thank you. Okay. I see that.27 Q. Now, ticket sales are not the same as attendance but 28 usually somewhat less than attendance, correct?

page 5319




1 A. No. Attendance is usually somewhat greater than ticket 2 sales. 3 Q. Is that different than saying ticket sales is somewhat 4 less than attendance? We agree that the number for ticket sales 5 is slightly lower than the number for attendance? 6 A. Maybe I misheard you. You are correct. 7 MR. DREYER: I also object. It's vague. He has answered 8 it. I believe that's fine. 9 THE COURT: I'm not sure even what the question is. So 10 why don't you ask the next question.11 Q. (By Mr. Harris) It's your belief that even though it says 12 ticket sales, it probably means attendance, true?13 A. That would be my best guess looking at the document, yes.14 Q. And it's true that the number for attendance is generally 15 somewhat higher than the number for ticket sales, true?16 MR. DREYER: I would object. It's overbroad. Generally 17 meaning what?18 Q. (By Mr. Harris) Based on your looking at NFL statistics 19 for attendance on one hand, and ticket sales on the other?20 A. Well, it's possible that attendance can be greater than 21 ticket sales because of the comps. It's also very possible that 22 attendance can be less than ticket sales in particular instances 23 because people can buy the ticket and then just not show up, and 24 that happens a lot.25 Q. Well, if these -- if this report is accurate, the 26 Jacksonville Jaguars didn't have a sellout season in 2002, true?27 MR. DREYER: Well, object, Your Honor. He is mixing -- if 28 it's attendance, it's not a sellout issue, it's ticket sales.

page 5320




1 So I object to the question as being overbroad. 2 THE COURT: Is that a question you can answer? 3 THE WITNESS: I probably can if I hear it again. 4 THE COURT: All right. See if you can restate it. 5 Q. (By Mr. Harris) If the report of the Sports Business 6 Journal on 2002 is accurate, Jacksonville Jaguars didn't have a 7 sellout season in 2002, correct? 8 A. Well, why should I assume that this piece of paper is 9 accurate? 10 Q. Something from your work?11 A. It's a hypothetical?12 Q. It is a hypothetical.13 A. Okay. So you want me to hypothetically assume that this 14 is something that it's not -- it is a attendance, not ticket 15 sales, and then you want me to read the number 96 percent and 16 compare it to 95 percent, and then conclude what? 17 Q. I was asking about the Jacksonville Jaguars, not anything 18 about 96 percent?19 A. Okay. 77.1 percent.20 Q. That's what was reported for the Jacksonville Jaguars in 21 the year 2002 by the Sports Business Journal?22 A. It's a highly unreliable source. I would be pleased to 23 tell you about how I compared it to the NFL statistics and how 24 unreliable I found it.25 Q. The official NFL statistics aren't available yet, correct?26 A. Well, they are available through box office statements for 27 the Raiders, for instance, but not for other teams to me.28 Q. We don't have them for other teams in the league at this

page 5321




1 point? 2 A. We don't. 3 MR. HARRIS: Your Honor, I don't know if this is a good 4 time for our morning break. I have a little bit more but not 5 too much more but -- 6 THE COURT: 10:35. I can't believe it. 7 THE WITNESS: It goes faster when you are having fun. 8 THE COURT: I'm having more fun than you are. We will be 9 in recess for 15 minutes. 10 (Recess)11 THE COURT: Let's continue.12 Q. (By Mr. Harris) Professor Dubin, I want you to look again 13 just for a minute at Exhibit 2159. The Sports Business Journal 14 document?15 A. Yes.16 Q. We were talking about their definition of percentage of 17 capacity, do you recall?18 A. (Witness nods head up and down).19 Q. Do you recall that we talked about whether they meant 20 ticket sales on the one hand or attendance on the other?21 A. We talked about that, yes.22 Q. If you look at the second page, there is a key that 23 defines the terms in the document; is that true?24 A. I see a key, yes.25 Q. And it defines "percent cap" as ticket sold as a 26 percentage of seats available at home games?27 MR. DREYER: Your Honor, this is a hearsay document that 28 he is reading.

page 5322




1 THE COURT: Right now he is not offering anything, but I 2 think he wants to clarify whether in light of that, he still 3 thinks it's unreliable and has some value. But obviously unless 4 and until you lay a foundation for this content. 5 Q. (By Mr. Harris) Professor Dubin, the definition of 6 percentage of capacity; is that the same definition -- 7 THE REPORTER: I'm sorry. Again. 8 Q. (By Mr. Harris) Is that the same definition that you use 9 as for purposes of your statistics? That is tickets sold as a 10 percentage of capacity?11 A. No. Because this is -- this is a table of attendance. 12 The percentage of capacity is here, go over a hundred percent, 13 and hopefully the teams are not selling more tickets than they 14 have seats.15 Q. Well, do you see an explanation of the notes as to why 16 that could be, true?17 A. Why it could be true? 18 Q. Is it possible that hundred percent can be exceeded 19 because of standing room only ticket sales?20 A. I see that they say that, yes.21 Q. Professor Dubin, in your report, you state that even with 22 improved performance, the effective performance on ticket sales 23 will not be nearly enough to produce home game sellouts for the 24 Raiders, true?25 A. Yes.26 Q. And was that statement in your draft report in the year 27 2000?28 A. I can't recall. Probably.

page 5323




1 Q. But, in fact, in the year 2002, the Raiders had ticket 2 sales as a percentage of capacity of 93.3 percent according to 3 your statistics, correct? 4 A. Yes. 5 Q. And according to the Sports Journal, 96 percent? 6 MR. DREYER: Again, Your Honor, this is the second time. 7 It's hearsay. 8 THE COURT: Sustained. 9 MR. DREYER: I would ask Mr. Harris not do that.10 Q. (By Mr. Harris) Well, according to your statistics, 11 that's within 1.7 percent of your definition of a sellout, 12 correct?13 A. Well, it further suggests to me this is not ticket sales 14 because the Raiders presumably know their ticket sales.15 Q. My question was not about Sports Business Journal. 16 According to your statistics, in the year 2002, Raiders' 17 ticket sales as percentage of capacity were within 1.7 percent 18 of year '95 percent standard, true?19 A. 93.3 is within 1.7 of 95 percent.20 Q. Now, I'd like to show you what we've marked as Exhibit 21 2170. Do you recognize Exhibit 2170?22 A. Yes.23 Q. What is Exhibit 2170?24 A. It looks like a letter to John Eichhorst at Howard Rice 25 from one of my research assistants, Elizabeth Knebel.26 Q. And was this under your direction?27 A. Well, she works under my direction.28 Q. Is this a letter requesting certain information that you

page 5324




1 want as part of your work on the case? 2 A. Yes. 3 Q. And if you look at item two -- 4 MR. HARRIS: Actually I'd move this document into 5 evidence. 6 MR. DREYER: No objection. 7 THE COURT: 2170, admitted. 8 Q. (By Mr. Harris) One of the things you requested was box 9 office reports disclosing what seats have sold at what price on 10 a per game basis for 1995 to 1999, correct?11 A. That's what Elizabeth asked for, yes.12 Q. That's something that you wanted or did she come up with 13 that on her own?14 A. You know, I can't tell you if she meant PSLs for the 15 entire league, box office statements for the entire league. 16 This is about a month into this project three years ago, so she 17 may have been thinking about the Raiders. She may have been 18 thinking about the league as a whole.19 Q. Well, the request goes on to ask for the seasons when the 20 Raiders were in Los Angeles, correct?21 A. Yes.22 Q. Did you ever receive information about Raider ticket sales 23 during the years that they were in Los Angeles?24 A. Yes, I think I did.25 Q. Did you ever do a comparison of Raider ticket sales in Los 26 Angeles in the years that they were there compared to the 1995 27 to 2001 in Oakland?28 A. I think I did, yes.

page 5325




1 Q. Now, if we look at Exhibit 434, which is your historical 2 sellout chart. 3 For the Oakland Raiders, you have a black line from 1982 4 to 1994, correct? 5 A. I can't see that far, and this thing is kind of blurry, 6 so. Must be my age. I have a black bar from 1982 through 7 1984 -- 1994 for the Oakland Raiders. 8 Q. But, in fact, the Raiders were playing in Los Angeles 9 during those years, correct?10 A. Yes.11 Q. And you know Los Angeles is the second largest media 12 market in the country, true?13 A. Second or third. I can't think of a bigger one. The Bay 14 area comes to mind, New York maybe.15 Q. Do you know whether, in fact, it's the second largest area 16 in the country after New York?17 A. Best I can tell you is, I think it's in the top three, but 18 I don't know if it's two or three.19 Q. You know that from 1982 to 1994, the Raiders never had a 20 sellout season, correct?21 A. I don't know it from this chart, and I don't know it from 22 any other information.23 Q. Well, you said you looked at L.A.'s statistics, you have 24 gathered those as part of your work?25 A. Well, I mean I can't tell exactly because there's missing 26 years here, so I can tell you about the years that are here. 27 You see it says, 1982, then it says 1984, then 1985, and then 28 there is a further gap of two years, '86 and '87. So I just

page 5326




1 don't know what happened. 2 Q. I am asking about the Raiders in Los Angeles from 1982 to 3 1994, do you know if they ever sold out during any of those 4 years in Los Angeles? 5 A. By my definition in the years of '82, skipping '83, then 6 '84, then '85 are not sold out. I don't know about '86 or 7. 7 And then I've got 1988 to where they are not a sellout, and I 8 don't know about '89. 9 Q. What line are you looking at, Professor Dubin?10 A. Los Angeles Raiders with white squares. Am I supposed to 11 look at something else?12 Q. Do you find some where on your chart where it says Los 13 Angeles Raiders, or are you looking at Los Angeles Rams?14 MR. DREYER: Fourth from the bottom.15 THE WITNESS: The fourth line from the bottom, it says Los 16 Angeles Raiders.17 Q. (By Mr. Harris) So for the years 1982 through 1992, they 18 are all white, correct?19 A. No. For the years 1982, 1984, 1985, 1988, 1990, 1991, and 20 1992, 1993 and '94, they are all white.21 Q. But looking at the Los Angeles Raiders' line on the chart?22 A. I feel like this is an eye exam.23 THE COURT: He is looking at the years. You see where the 24 years are mentioned up on top. Can you put the cursor up to 25 where the boxes are.26 Q. (By Mr. Harris) Okay. So all the years that are 27 reflected here, none of them show a sellout, correct?28 A. That's correct.

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1 Q. And you are not aware that there were any sellouts in Los 2 Angeles in the years not reflected such as 1983, 1986 or 1987, 3 true? 4 A. I don't think they did sell out, but I'm not aware of it. 5 Q. You know the entire time they were in Los Angeles, they 6 never sold out, correct? 7 A. Correct. 8 Q. Now, and do you know if the attendance as a percentage of 9 capacity in Los Angeles was, in fact, less than it has been 10 since the return to Oakland.11 MR. DREYER: Objection, Your Honor, as to relevance. They 12 moved. 13 THE COURT: Overruled.14 Q. (By Mr. Harris) Do you know?15 A. I recall that the Oakland -- the L.A. Coliseum, since I 16 live in Los Angeles, is an enormous place, and I believe their 17 ticket sales to capacity were lower than they are in a smaller 18 stadium in Oakland.19 Q. Well, they were considerably lower; isn't that true?20 A. I think so, yes.21 Q. Now, did you as part of your study, did you also 22 determine -- in fact, in absolute numbers the Raiders drew -- 23 the Raiders' attendance in 1993 and 1994 in Los Angeles was less 24 than absolute numbers than it was in Oakland in 1995 and 1996, 25 correct?26 A. '93, '94? 27 Q. The last two years in Los Angeles?28 MR. DREYER: Again, I make the same objection as to

page 5328




1 relevance, Your Honor. 2 THE COURT: Well, I overruled the other one. I think I 3 have to overrule this one. 4 MR. DREYER: Sorry. 5 THE COURT: He is talking about absolute numbers here 6 rather than comparison of a larger stadium. 7 The objection is overruled. 8 THE WITNESS: I've seen that data, but I don't have it in 9 front of me, so I couldn't tell you. 10 Q. (By Mr. Harris) Is that consistent with your 11 recollection?12 A. You know specifically on attendance, I don't have much of 13 a recollection what the numbers were in Los Angeles versus in 14 Oakland for those four years. We are almost ten years ago.15 Q. How about ticket sales?16 A. I don't recall.17 Q. Did you as part of your study determine how many season 18 ticket holders the Raiders had in Los Angeles prior to coming to 19 Oakland in 1995?20 A. Yes, I did. I think, at some point, I did do that.21 Q. Do you recall how many season ticket holders they had in 22 Los Angeles in 1994?23 A. No.24 Q. I would like to show you what's been marked as Exhibit 25 1046. This was previously introduced with Mr. Howell. 26 Now, when we saw Exhibit 2170 that you had asked for book 27 office statements; is that true?28 A. Yes.

page 5329




1 Q. And box office statements are what you used to get a lot 2 of the numbers that you used for your statistics, true? 3 A. No, I used the NFL official statistics, which are 4 aggregations of these or they take these source documents and 5 then aggregate them and publish them. 6 Q. So the box office statements are the source documents for 7 the information that you used? 8 A. That's my understanding. 9 Q. Did you look at box office statements at all as part of 10 your work?11 A. Yes.12 Q. Do you understand how they work, how the information is 13 displayed?14 A. For the most part.15 Q. If you look at this document, 1046, can you identify it?16 A. It's a box office statement for the September 11th, 1994 17 game.18 Q. That's the first page, correct?19 A. Okay. That's the first page.20 Q. And if we focus on the first page for a minute, does this 21 refresh your recollection as to the season ticket sales for the 22 Los Angeles Raiders as of that time, September 11th of 1994?23 A. It doesn't refresh my recollection, but I can see what the 24 statement says.25 Q. And how many season tickets sales did the Los Angeles 26 Raiders have as of that time in 1994?27 MR. DREYER: Objection. Hearsay, Your Honor.28 THE COURT: This document is admitted?

page 5330




1 MR. HARRIS: No. 2 MR. DREYER: No, it has not. 3 THE COURT: This would be hearsay offered. You are 4 offering to prove the truth, not simply the material. 5 The objection is sustained. 6 Q. (By Mr. Harris) As part of your work, Professor Dubin, 7 did you get box office statements from the Raiders? 8 A. Yes. 9 Q. And do you know if the Raiders produced box office 10 statements in the regular course of their business on a -- from 11 week to week?12 A. I don't know how often they produced them.13 Q. Do you know that they do them in the regular course of 14 their business?15 A. I do know that.16 Q. And you've -- you know that those numbers are incorporated 17 in the NFL statistics that you relied on, correct?18 A. That's my understanding.19 Q. So your understanding that these are accurate and reliable 20 numbers?21 A. I hope they are, yes.22 MR. HARRIS: I would offer Exhibit 1046.23 MR. DREYER: Same objection, Your Honor, and lack of 24 foundation. 25 THE COURT: He is not a qualified witness to tell us how 26 these statistics are gathered, maintained and generated; and 27 hence, the business record exception has not been established. 28 The objection is sustained.

page 5331




1 Q. (By Mr. Harris) But these are the same numbers that you 2 ultimately relied on for your statistics, correct? 3 A. Only if these numbers are translated into the NFL official 4 statistics in exactly the same way they are, yes. 5 THE COURT: But this needs to be clearer. Certainly this 6 is the kind of information that's sufficiently reliable as 7 hearsay and experts can rely upon it. That doesn't make it 8 independently admissible for the truth of the matter. 9 MR. HARRIS: I understand, Your Honor.10 Q. (By Mr. Harris) Professor Dubin, do you know if the 11 season ticket sales in Los Angeles ever -- or in the last year 12 that the Raiders were in Los Angeles ever exceeded 28,000?13 A. I don't know that.14 Q. Do you know what season ticket sales were in Oakland at 15 the end of the 1995 season?16 A. Approximately 39,000 is my recollection.17 Q. Well, 39,970 sound right to you?18 A. It could be, yes.19 Q. I would like to show you Exhibit 1324. Can you identify 20 Exhibit 1324?21 A. What I'm looking at is a box office statement on its first 22 page dated September 3rd, 1995 for the Raiders.23 Q. Okay. Could you look at the last page of this document, 24 the box office statement from December 24th, 1995?25 A. Right, I see that.26 Q. Does that refresh your recollection as to the exact number 27 of season ticket sales as of the last game of the season in 28 1995?

page 5332




1 A. I believe it's the same as you've just represented. 2 Q. 39,970? 3 MR. DREYER: Again, Your Honor. It's -- 4 MR. HARRIS: He says it refreshes his recollection. 5 THE COURT: Does it truly refresh your recollection or are 6 you just reading the numbers on the report? 7 THE WITNESS: Well, Your Honor, I said my recollection was 8 39,000, and this is 39,970, so I suppose it refreshes my 9 recollection.10 MR. HARRIS: Okay.11 Q. (By Mr. Harris) And those were all season ticket holders 12 who had also purchased a PSL, correct?13 A. Yes.14 Q. And that's a ten-year PSL, true?15 A. Yes.16 Q. Now, you haven't studied how other professional sports 17 team in a market impact in demand for football tickets, correct?18 A. No, that's incorrect.19 Q. Well, you haven't done any study, for example, to try to 20 determine what the effect of the demand for 49er tickets on the 21 one hand has on the demand for Oakland Raider tickets on the 22 other, true?23 A. No, I have done that study.24 Q. And what did you find?25 A. I didn't find any effect of the 49ers as a statistical 26 effect of the 49ers or actually I should be precise. I didn't 27 find any effect from two city markets. Of course, there is only 28 two of them in the league.

page 5333




1 Q. So what you did if you included in your data New York, 2 which has the Jets and the Giants, correct? 3 A. If the Jets and Giants are part of my data site, yes. 4 Q. And you also included the Bay Area that had two teams, 5 true? 6 A. Yes, I did. 7 Q. But beyond that, you didn't do a study to determine 8 exactly what the impact might be of having two teams in the 9 market?10 A. It's vague. Two teams that play football or two teams -- 11 Q. Two teams that play football in the National Football 12 League, correct.13 A. Well, I did look at that statistically, and I also looked 14 at the effect of other professional sports teams on NFL football 15 demand.16 Q. And, in fact, in New York where you have two teams, the 17 Jets and the Giants are among the teams that have sold out 18 historically, true?19 A. Yes, they are.20 Q. And that we know is the largest media market in the United 21 States, correct?22 A. That sounds right to me, yes.23 MR. HARRIS: I have no further questions at this time, 24 Your Honor.25 THE COURT: Mr. Fields, do you have any questions?26 MR. FIELDS: I do, Your Honor. Briefly.27 \\\\28 \\\\

page 5334




1 CROSS-EXAMINATION 2 By FREDERICK S. FIELDS, Counsel for Defendant, Arthur Andersen: 3 Q. Good morning, Professor Dubin. 4 A. Good morning. 5 Q. Have you ever been to a Raider game? 6 A. Yes, sir. 7 Q. When? 8 A. Well, I grew up -- I was born in Berkeley and lived in 9 Hayward, and then I lived in San Leandro, and we had season 10 tickets when I was a youngster. I was in the -- I saw the 11 Raiders in the time of Daryle Lamonica and George Blanda.12 Q. You were hired by the Raiders to perform your study that 13 you have told us about in January of 2000, right?14 A. Yes.15 Q. Did you go to a game in the 2000 season?16 A. No, I did not.17 Q. How about the 2001 season?18 A. No.19 Q. How about the 2002 season?20 A. I asked to go to a 2002 game, but I couldn't get tickets.21 Q. Not surprising.22 A. Well, I didn't want to pay for them.23 Q. Did you go to games at the Coliseum after the addition was 24 built in 1996?25 A. To the Coliseum did you ask me? 26 Q. Yes.27 A. The Oakland Coliseum? 28 Q. That's what I meant if I didn't say it. Did you go to a

page 5335




1 game at the Oakland Coliseum after the addition was constructed 2 for the 1996 season? 3 A. No, I don't think I've seen the Oakland Coliseum. 4 Q. Let me show you a picture. See if it looks familiar. 5 MR. FIELDS: This is 2005A for the record. 6 Q. (By Mr. Fields) Do you recognize that? 7 A. You know, it's embarrassing since I grew up there, and I 8 used to go there when I was a kid, but I don't recognize it. 9 Q. Well, the part I'm indicating now here out in the right 10 field on the east side must look new to you, right? You don't 11 remember that when you went to the stadium as a kid, right?12 A. Right. I think there were bleachers out there.13 Q. Are you aware of the fact that as a condition of the 14 Raiders returning from Los Angeles to Oakland in 1995, they 15 requested that an addition be made to the stadium to provide for 16 additional seating?17 MR. DREYER: I'll object, Your Honor. That's 18 argumentative and mischaracterizes the evidence in this case 19 about the efforts of the OACC to expand the stadium.20 THE COURT: I think you can rephrase the question to solve 21 that problem.22 MR. FIELDS: Okay.23 Q. (By Mr. Fields) Have you been informed by any of the 24 Raiders' counsel with whom you've dealt and through the various 25 documents that you've reviewed that an addition was made in 1996 26 to provide additional seating for the Raiders when they returned 27 in 1995 and thereafter?28 A. I know that there was a stadium expansion in 1996. I

page 5336




1 don't really know who requested it. 2 Q. Fine. And do you know whether the part that I'm pointing 3 to now on the east side is that expansion? 4 A. I -- from what you are telling me and what I remember when 5 I used to go, when I was young, it could be, yes. 6 Q. Have you made any effort to ascertain what it's like to 7 sit in the top rows of this addition, Mr. Dubin -- Dr. Dubin? 8 A. No, I haven't. 9 Q. So you haven't visited the stadium -- I asked about 10 whether you attended a game, but let me ask you a different 11 question.12 Have you visited the stadium itself when the game was not 13 on since your retention in January of 2000?14 A. No, I have not.15 Q. Did you make any requests to go and see the stadium?16 A. Well, like I said I was kind of interested in playoff 17 tickets in 2002, but that was all -- that was my only request, 18 and I wasn't going in the context of the case. Just because I 19 wanted to see the Raiders play.20 Q. Okay. But independent of that, you made no requests then 21 to go and see what the various seat products were like? I mean 22 the things that the customers were buying? Such as these seats 23 in the upper east side here, the addition?24 A. No, I didn't make such a request.25 Q. Do you have any idea how far it is from the upper rows of 26 this addition to the playing field, which I will represent to 27 you is laid out like this?28 A. No, I do not.

page 5337




1 Q. Have you ever talked to anybody who sat in those seats? 2 A. No, I haven't. 3 Q. Have you ever made any effort to contact anybody who sat 4 in those seats? 5 A. No, I haven't made such an effort. 6 Q. Am I right you told us yesterday that empirical means the 7 study of actual phenomenon in nature? You said that? 8 A. Sounds like something I would say. 9 Q. The sources of information on projects are three: 10 One, from clients who hired you. That would be the 11 Raiders here. 12 Two, independent research in addition to that. 13 And three, what else has been done in the scholarly work. 14 Those are the three sources of your work here, right?15 A. Usually, yes.16 Q. And then you also say yesterday, if I am correct, that you 17 want to be as precise as possible when predicting things, 18 correct?19 A. Predicting or estimating things, yes.20 Q. And that analysis leads to precision. 21 That's quoted from your testimony yesterday. Do you 22 remember that?23 A. What did I mean by that? Analysis leads to precision? I 24 don't know what was the context in which I said that.25 Q. Well, you went on to say, The more information you 26 collect, the more precise your analysis. 27 Does that put it in context?28 A. A little bit. It also gives me a frame of reference.

page 5338




1 That sometimes when you are doing a statistical study, more data 2 can help determine the precision of an estimate. 3 Q. Do you agree with the statement which I have attributed to 4 you yesterday? The more information you collect, the more 5 precise your analysis. Do you agree with that? 6 A. In the context of a statistical study, that is certainly 7 true. Information by itself is not necessarily of any value. 8 Q. Well, I suppose it depends on what information it is, 9 right?10 A. Well, if I am studying the Raiders, for instance, going 11 off and reading books about Shakesspear, that's more 12 information, but it's -- I don't know how it helps. But what I 13 was trying to imply was that collecting additional observations, 14 when you can, and comparison between study, for instance, that 15 looks at 20 observations versus 1,700 observations, those can be 16 dramatically different in terms of precision and accuracy.17 Q. You were telling us about some of the projects you've 18 worked on in the past for clients. And you gave us an example 19 of marketing firms or like Burger King, something like that. 20 You said that you asked people, Did you buy something? 21 And then you asked people, Would you buy something if the price 22 were different? 23 Do you remember that as an example the kind of work that 24 your research group does?25 A. No. I was talking about something different. I think 26 that was one of the first things we talked about in the context 27 of how economists go about getting data to analyze demand. One 28 methodology is to ask people questions, to run surveys. But

page 5339




1 other methodologies are just simply to observe what happens in 2 the marketplace. It doesn't require any conversation with 3 anybody. 4 For example, the scanner running in a supermarket, we are 5 not having a conversation. It's just recording what's 6 happening. 7 THE COURT: Excuse me one minute. (Pause). All right. 8 Q. (By Mr. Fields) Have you done work for clients through 9 your economic research firm wherein you have contacted customers 10 to ascertain their intentions regarding products?11 A. I have never done a purchase intention study myself. I've 12 studied the data that comes from such studies.13 Q. Have any of your staff done that?14 A. No.15 Q. But you have relied on surveys where people have gone and 16 talked to customers then reported those in the survey, correct?17 A. I don't know if relied on is the correct word there.18 Q. But you have reviewed them?19 A. I've reviewed them and actually critiqued them.20 Q. And you've considered them?21 A. I've considered them for what they say, yes.22 Q. Okay. Fine.23 Now, you have opined in various opinions to the jury, and 24 you have assumed -- changing years here to the summer of 1995, 25 July and August -- that there was condition consistent with 26 excess demand in the Raiders' marketplace, correct?27 A. I said that the representations were consistent.28 Q. But you yourself have made no attempt to make any finding

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1 or render an opinion on whether, in fact, there was excess 2 demand, correct? 3 A. I think by the end of the season, there was not excess 4 demand. 5 Q. But we are talking about now at the beginning of the 6 season. 7 Your work was not your job or did you attempt to find out 8 or render an opinion on whether or not there was, in fact, 9 excess demand in July or August of 1995, correct?10 A. No, I didn't -- I didn't go back in time or something like 11 that. I was working with the statements and the data.12 Q. So I'm correct that that was not your job, and you did not 13 form any such opinion, correct?14 A. Well, I did form opinions about it, but it may not have 15 been my job.16 Q. You relied on Mr. Howell's work in that regard, correct?17 A. In part, yes.18 Q. And you yourself did not reach the opinion that there was 19 excess demand in July or August of 1995, correct?20 A. In -- no, it looked to me like there probably was excess 21 demand in that period of time. And certainly the statements 22 were consistent with it. The marketing studies that I had seen 23 that were in the records suggested a lot of enthusiasm for the 24 Raiders as of that time period and before.25 Q. You weren't asked by the Raiders to determine whether or 26 not there was excess demand, correct?27 A. I think the Raiders have asked me that if that's -- their 28 counsel have asked me that question.

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1 Q. Did they ask you as part of your study to inquire into 2 that subject? 3 A. That was not my specific task, no. 4 MR. FIELDS: I would like to show a portion of Dr. Dubin's 5 deposition, please. 6 Q. (By Mr. Fields) Do you recall, Dr. Dubin, that your 7 deposition was taken in part by my partner, Susan Jamison, in 8 February of this year? 9 A. Yes.10 Q. Along with Mr. Harris?11 A. Yes.12 Q. And you had an attorney there, correct?13 A. Yes.14 MR. FIELDS: I'd like to go to 233, please. I'd like to 15 start the bottom page, bottom line of the last page, 232, line 16 25 to line 15, page 233. 17 MR. DREYER: I have no objection, Your Honor.18 MR. FIELDS: Okay.19 (Whereupon videotaped deposition was played)20 Q. In order to create an expectation, because you've actually 21 contrasted one scenario in which there is excess demand and then 22 posited that there would be sellouts for 15 years with the 23 situation you say actually existed which is that there wasn't. 24 And I'm just trying to figure out whether you could come to the 25 assumption or conclusion that there was excess demand without 26 all of the factors that you previously mentioned.27 A. I haven't tried to conclude that there was excess demand.28 Q. Right.

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1 A. What I've tried to do is say that these, these surveys and 2 the timing at which things happened all seemed consistent with 3 the possibility or with excess demand. 4 (Whereupon videotaped deposition was stopped) 5 MR. FIELDS: Thank you. 6 Q. You recognize, Dr. Dubin, that you are being called here 7 as a portion of the Raiders' damages case, do you understand 8 that? 9 A. Yes.10 Q. And that your opinion is based upon the assumption of 11 excess demand that there is a high likelihood that the Raiders 12 would have sold out all the way through the end of the lease, 13 that is the 2010 period, correct?14 A. Yes.15 Q. And then presumably somebody is going to come along after 16 you, to know this and plug the numbers in to show us what that 17 amounts to, something like a billion dollars or something?18 MR. DREYER: Object, Your Honor. This is argumentative.19 THE COURT: Sustained. 20 Q. (By Mr. Fields) Have you communicated with any other 21 experts in this case?22 A. I guess the easy answer is no. I attended one meeting 23 maybe in 1990 where there may have been other people in the room 24 that were experts. And I can't remember who they were, and I 25 don't even know if they are experts in this case at this time.26 Q. You said 1990?27 A. I'm sorry. 1990 -- 2000. I'm off by a decade.28 Q. This was shortly after you were retained then?

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1 A. That's the best of my recollection. My invoices would 2 sort of straighten that out, I think. 3 Q. As you sit there and testify this morning, are you 4 represented by the Raiders' attorneys? 5 A. No. 6 Q. Have they told you that your testimony will be followed at 7 some point in time by somebody who will put numbers to your 8 conclusions? 9 A. I've sort of made that assumption. They weren't told me 10 that.11 Q. And if the jury were to find that there was not, in fact, 12 excess demand during July and August of 1999, then your opinion 13 is irrelevant, correct?14 MR. DREYER: Object, Your Honor. That's argumentative. 15 It's also -- it's argumentative.16 THE COURT: I don't know how Dr. Dubin can figure out 17 whether his opinion has relevance to a myriad of issues in this 18 case. 19 The objection is sustained. 20 Q. (By Mr. Fields) I would like to ask you now some 21 questions about the PSL program and your conclusions regarding 22 the likelihood of a sellout through the year 2010. 23 If I may use the blackboard. 24 In 1995, and we know that the '95 season was sold out, 25 right, Professor?26 A. Yes.27 Q. So then the PSL beginning in 1996 go to 2005, right. They 28 are ten-year PSL, and then a new PSL is sold, 2006, 2010.

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1 Right? 2 A. Right. 3 Q. And this is called remarketing which is a fancy word for 4 buy another one, right? 5 A. I don't know what it's called. 6 Q. Well, you got to buy another PSL if you want to get season 7 tickets for this part, the 2006, 2010, right? 8 A. That's true, I believe. 9 Q. Okay. Now, did you understand Dr. Dubin -- pardon my 10 back.11 That the price of the second PSL was 75 percent of the 12 first PSL?13 A. Yes.14 Q. Okay. So the first PSLs which cost $4,000 are bought by 15 someone, they are going to have to pay $3,000 for that PSL, 16 right?17 A. Well, if a PSL cost 4,000, then 75 percent of it is 3,000, 18 a PSL range of their price.19 Q. I'm using this one as an example. You can use any one you 20 want. I can use another one in a minute. But those who held a 21 $4,000 PSL and wanted to retain their same seats, they would -- 22 and that by the way is for ten years, right? And this only is 23 for five years, correct?24 A. Yes.25 Q. All right. So if somebody who liked their seats, let say, 26 and wanted to have a season ticket for the five years between 27 2006 and 2010, and they were in the $4,000 category, they would 28 have to pay 3,000 for the remaining five years just for the

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1 right to buy season tickets for that period, correct? 2 A. Well, they wouldn't have to do anything unless they wanted 3 to do it. But if they wanted to see the Raiders, and I would 4 think that they would, if excess demand persisted, then they 5 would have to pay that price for that type of seat. 6 Q. I thought my question assumed somebody wanted the ticket, 7 but if I didn't make that clear, you have, thank you. 8 A. Okay. 9 Q. And you said if excess demand persisted, right.10 And your conclusion that it's highly likely that it would 11 have been sold out during this period of time assumed that such 12 excess demand does, in fact, persist, right?13 A. No, I don't assume excess demand persists. I measured 14 that it does. I see it happening in NFL football.15 Q. I see. Did you make any attempt whatsoever to talk to any 16 of the people who held these PSLs to ascertain the level of 17 interest in buying the second PSL for $3,000?18 A. No, I didn't.19 Q. Did you ask anybody to provide you with a list of the 20 season ticket holders of the Raiders who held such PSLs?21 A. At what point in time?22 Q. At any point in time?23 A. Not my -- when I would ask. I'm asking what point in time 24 they held the PSLs, are you talking about '95, '96?25 Q. I'm talking about after you were retained in 2000, before 26 you came here to tell the jury that this would have sold out 27 through 2010. Did you at any time ask the Raiders -- let me 28 start with a foundation question.

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1 You know the Raiders have a list of their season ticket 2 holders, right? 3 A. I would think. 4 Q. I mean you got to send the bill out every year, correct? 5 A. Well, I don't know if the Raiders specifically have a list 6 of their season ticket holders. Somebody must retain such a 7 list. 8 Q. You don't think the Raiders have it? 9 A. I don't know if that's how it is set up. It could be some 10 group in Oakland. It could be the Coliseum. I don't know who 11 has that list.12 Q. Whoever. Did you ever ask any of the lawyers on the 13 Raiders' team, Get me a list of the people who hold the $4,000 14 PSLs because I want to do some market research and see what the 15 likelihood is that they are going to pony up $3,000, so they can 16 buy the last five years to go to 2010. 17 Did you ever make such a request?18 MR. DREYER: Your Honor, I object as relevance as to 19 asking people now in the aftermath. As to relevance.20 THE COURT: Overruled. 21 THE WITNESS: No, I didn't request a list of people to 22 contact.23 Q. (By Mr. Fields) Now, the other end of the spectrum. 24 Are you aware of the fact that the lowest PSL is $250?25 A. Could be.26 Q. I believe three quarters of that is 87.50. 27 Did you ever make any attempt, Dr. Dubin, to ask anybody 28 whether they would be willing to pay $187.50 to buy a PSL to sit

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1 up here in the eastern addition, so they could buy season 2 tickets for that location from 2006 to 2010? 3 A. I didn't ask anybody whether they were going to buy a PSL 4 in 2006. 5 Q. What role does common sense play in your opinion, 6 Dr. Dubin? 7 A. Well, I hope it plays an important role. 8 Q. But, in fact, you testified that you actually go beyond 9 common sense, don't you?10 A. No. I don't think it's beyond. I think it's in 11 conjunction with common sense, and I judge my empirical findings 12 if they make sense to me as an economist. 13 Q. And then I guess it makes sense to you that the tickets 14 are going to be sold out through 2010 because people are going 15 to pay both $3,000 at the top end and $187.50 at the bottom end 16 to sit in the latter case in these seats to watch the Raiders 17 for years 2006 to 2010?18 MR. DREYER: Your Honor, object as vague as to time. 19 Is Mr. Fields asking back in 1995 when he has rendered his 20 -- relative to the period of time he rendered his opinion or is 21 he asking today?22 THE COURT: I think you should make that clear because 23 there is obviously a distinction between the two.24 Q. (By Mr. Fields) I'm asking for your opinion today. 25 You have rendered the opinion to this jury that it is 26 highly likely that the Raiders would have sold out, will sell 27 out, would have sold out to the year 2010 in a situation of 28 excess demand. I'm asking you whether in applying common sense

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1 to that opinion, you considered the question I just asked you? 2 MR. DREYER: Well, again, I object. I think Mr. Fields is 3 missing a few points of the opinion when he characterizes the 4 opinion. And I object to the question as being vague. 5 THE COURT: I'm not sure I understand precisely what the 6 question is. Perhaps you should take another shot. 7 Q. (By Mr. Fields) Let me ask it this way. 8 You've testified that in your other work, that is for 9 projects other than the Raiders, you have considered surveys 10 that canvassed customer indications of what they will and will 11 not buy based upon the price, correct? 12 A. I've considered them, yes. One thing economists try not 13 to do is to make in hypotheticals and hypothetical surveys -- 14 contingent evaluation surveys, contingent use surveys are 15 sometimes quite flawed. In fact, I've written a paper about -- 16 in my CV about how many times people will state something about 17 what they are going to do. 18 Like, for example, how often people state that they are 19 going to be going to the beach in the summertime. If you talk 20 to people and say, How often are you going to be going to the 21 beach? They think about it, and they go, Well, maybe ten, 15 22 times. And you go back and see how many times those people 23 actually went to the beach, they get it wrong. 24 So I actually tend not to rely on that type of data very 25 much. Contingent use data or contingent purchase data, those 26 hypotheticals when posed to consumers actually could be very 27 misleading. And it also depends deeply on the time period you 28 ask a person.

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1 So you are asking me to think about talking to someone 2 now, it's a completely different world than it might have been 3 had things started off on the right foot. 4 Q. You think your beach analogy is analogous to the situation 5 we have on the board there regarding whether someone is going to 6 pay additional money for a five year PSL? 7 MR. DREYER: Again, vague as to time. Are we talking 8 about back when they were first coming back in '95, or are we 9 talking about today?10 MR. FIELDS: Talking about the opinion he just expressed.11 MR. DREYER: Still vague, Your Honor. 12 THE COURT: Follow it up on his own answer that drew the 13 distinction that you made in your objection. 14 So your objection is overruled. 15 THE WITNESS: The beach analogy is an analogy to try to 16 indicate that consumers sometimes have trouble forecasting the 17 future.18 Q. (By Mr. Fields) Let me ask you this question. 19 Who knows better whether they are going to buy PSLs from 20 2006 to 2010? The Raider fans or you.21 MR. DREYER: Objection. Vague as to time.22 MR. FIELDS: Right now.23 MR. DREYER: Then I object as to relevance.24 THE COURT: I'll overrule it. 25 THE WITNESS: Well, some Raider fans would probably have 26 opinions about what they are going to do in the next three 27 years, and they would probably be accurate. And others might 28 have different opinions in those intervening three years. They

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1 may move. They may resell their PSLs. They may change their 2 time. I don't know what will happen with those opinions. 3 Q. (By Mr. Fields) But you didn't bother to ask them, did 4 you. 5 MR. DREYER: He is argumentative, Your Honor. 6 THE COURT: Sustained. 7 THE WITNESS: I don't think that that's -- I'm sorry. 8 Q. (By Mr. Fields) Let me put it to you this way. 9 You testified that in some of your prior work where, for 10 instance, is Burger King a good example? You told us about the 11 Burger King, E-coli example yesterday. 12 Customers were canvassed to say where would you go if you 13 wouldn't go to Burger King? Are you going to go to Pizza Hut? 14 Are you going to go to MacDonalds? I guess it was some other 15 fast food chain. Do you remember that?16 A. There may have been surveys of consumers like that, and 17 maybe I said that. That is my recollection, but the data I 18 analyzed there was where people actually went to eat and how 19 their patterns of eating changed after E-coli outbreaks occurred 20 at Jack-In-The-Box.21 Q. Did you consider the surveys that asked people where they 22 would go if they didn't go to Burger King?23 A. I don't recall that I considered such surveys. I'm not 24 sure that they even existed. That's my best recollection. I'm 25 sure people were running surveys. They could have been running 26 surveys. I don't know.27 Q. In your other work you have looked at surveys, where 28 customers are asked, What they will do in the future, correct?

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1 A. That's true. 2 Q. So in working for clients, and this is my last question to 3 you, Dr. Dubin -- in working for clients on those other 4 projects, you have considered surveys about what customers will 5 do in the future before rendering your opinion to those clients, 6 who hired you. But before coming to tell the ladies and 7 gentlemen of the jury your opinion that is highly likely that 8 the Raider season tickets would sell out through 2010, you 9 considered no such survey, correct?10 MR. DREYER: Objection, Your Honor. It's argumentative, 11 and it's compound. 12 THE COURT: It has already been asked as well. 13 Sustained. 14 MR. FIELDS: I'll stop with that one, Your Honor. 15 REDIRECT EXAMINATION16 By ROGER DREYER, Counsel for Plaintiff Oakland Raiders:17 Q. Dr. Dubin, for purposes of your assignment in connection 18 with this case in coming to testify for this jury, did we ask 19 you to conduct a survey present time to predict how the effect 20 since the '96, '97, '98 and '99 season through now has affected 21 whether people will purchase in the remarket -- in the market 22 when it happens in 2005?23 A. No.24 Q. Does that have anything to do with your analysis that you 25 were hired to doing in connection with this case?26 A. No.27 Q. Now, if we wanted to have you evaluate the present 28 circumstance concerning the Raider market, you would be looking

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1 at the issue of whether it has excess demand or excess supply, 2 right? 3 A. Among other things you could look at that, sure. 4 Q. And if you have a market that no longer has excess supply, 5 then clearly the potential of people buying PSLs isn't going to 6 happen, correct? 7 A. And the market as it is today, things have changed 8 dramatically in their -- what they are going to do in 2006, I 9 would think, would be very different than how they might have 10 thought about it in 1995.11 Q. So in terms of your analysis, we asked you to look back in 12 1995 and based upon the representations made, if they were true, 13 the representations made to the Raiders, the ones that -- the 14 press release and the other materials you are looking at, and to 15 assess the market at that point in time on this issue of demand, 16 true?17 A. Yes.18 Q. And the opinions you've provided to us, if the 19 representations were true, did you have -- do you have an 20 opinion as to whether an excess demand circumstance existed?21 A. Yes.22 Q. Now, when you were asked questions in your deposition, and 23 we've seen portions of them. 24 MR. DREYER: Your Honor, I would like to have some of 25 Dr. Dubin's deposition read or played. Specifically I would 26 like to start with line 234 page -- excuse me -- page 234, line 27 25 through 235, line 5. Excuse me. Let me start again.28 Line 1 on 234.

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1 And this is the section that follows what has been played 2 both by Mr. Harris and by Mr. Fields. 3 234, line 25, all of page 235, and lines 1 through 5 on 4 236. 5 MR. HARRIS: I object to hearsay, Your Honor. There is no 6 basis -- it's not being used to impeach the witness, I take it? 7 MR. DREYER: Well, it's clear it's not being used to 8 impeach the witness. 9 THE COURT: Are you offering this to put what was 10 previously read into context?11 MR. DREYER: Yes, sir, as an example.12 THE COURT: You want to look at the offered section with 13 that in mind? 14 MR. HARRIS: So what were the --15 THE COURT: Page 234, line 25. All of 235, and 1 through 16 5 on page 236. 17 MR. FIELDS: I don't have any objection to the content, 18 Your Honor. My objection is that this is fairly unusual. My 19 worry is that we will get into a battling deposition excerpts 20 contest. We will find something that says this, he will find 21 something that supports it, and I wonder how probative it is, if 22 anything, if it will help the jury.23 MR. DREYER: I don't know -- I guess I know Mr. Fields' 24 point. All I am trying to do, Your Honor, is give the jury 25 context, when they get an excerpt taken out, what is going on in 26 the depo. That's all. I don't plan on -- there is --27 THE COURT: Is there an objection to this portion?28 MR. FIELDS: Not as such, Your Honor.

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1 THE COURT: Mr. Harris. 2 MR. HARRIS: I would join in Mr. Fields' objection, but 3 otherwise. 4 THE COURT: Well, he has no objection so -- 5 MR. HARRIS: I mean he has a more general objection as to 6 the procedure because I don't think it is -- under the rule, I 7 don't see how it relates to anything that has been played 8 previously. 9 THE COURT: Well, there is no objection to reading this, 10 so we will read it and see whether the fears that we are going 11 to go back and forth for the rest of the day materialize or not.12 MR. DREYER: Your Honor, it's almost noon, maybe what we 13 can do -- while Jeff works on this -- do you have it? We can do 14 it during the noon hour. I can do a couple other questions.15 THE COURT: Is it going to take a little while to cue it 16 up?17 MR. DREYER: He wasn't -- I didn't give him a heads up on 18 this.19 Jeff, why don't you just go ahead and work on it, but let 20 me ask a couple of questions, I'll take us to noon, and then we 21 can come back in the afternoon and do this, Your Honor.22 THE COURT: Okay.23 MR. DREYER: Now he is ready. Let's play. 24 (Whereupon, videotaped deposition was played).25 MS. JAMISON: Well, he has testified that there are a 26 cluster of factors that lead to the reasonable conclusion that, 27 that conditions were consistent with excess demand. That's the 28 words he's using, as opposed to that excess demand was present.

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1 And so I'm just trying to mirror his language. He's also 2 testified that some of these factors taken in isolation aren't 3 enough to get to that conclusion about consistency. And what 4 I'm trying to do is combine some of these factors in different 5 ways to see, well, what is enough, what can we lose and still 6 reach that conclusion. 7 Q. And so I tried taking out the economic group report by the 8 Economic Survey Group, and also the publicity that said, "This 9 is your last chance to see the Raiders for ten years," which you 10 mentioned earlier. If you took those two things out, would you 11 still say that the conditions were consistent with the state of 12 excess demand?13 A. If the statement that the PSL product had been completely 14 sold out were still, were factually true, and if it were the 15 case that the timing of the, in which those statements had been 16 made were true, or were as they were, so that the marketing 17 effort took place in a three-week period, a lottery mechanism 18 had been established, I guess in anticipation of very high 19 demand, if all the other factual information suggesting 20 enthusiasm was still present, if the statement that luxury 21 suites had been oversold was still present, I would say that 22 those items are consistent with excess demand.23 (Whereupon videotaped deposition was stopped)24 Q. (By Mr. Dreyer) Now, Dr. Dubin, during the course of the 25 deposition, questions would be posed where they take factors in, 26 take them out, and ask you questions as to this issue of excess 27 demand, right?28 A. Yes.

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1 Q. And in terms of your analysis as an economist, you have to 2 look at the picture you have, all the information you have and 3 not kind of like take things in and out; is that fair? 4 A. Well, there is -- sometimes I can put things in and out in 5 a statistical sense, but with these representations, it's much 6 harder to do. 7 Q. In terms of this question, have you gone, you know, since 8 you were hired in 2000, have you gone out and done a survey -- 9 you are mindful of Mr. Howell's opinion that the PSL market was 10 effectively poisoned and ruined, correct?11 A. Yes, I read that.12 Q. Is there any way anybody could in today's terms, 2000, 13 2001, 2002 go back in time and somehow check the issue of excess 14 demand by doing some kind of survey in today's time?15 A. No, it wouldn't mean anything.16 Q. Now, in terms of your evaluation on this case, I want to 17 go through -- while we are on the depo. You remember -- and we 18 won't play this. I'll just read it. 19 You remember Mr. Harris asked you about this concept of 20 publicity, negative publicity and what effect it would have. Do 21 you remember him playing a portion of that?22 A. Yes, sir.23 Q. And you told us -- that you said it could have an effect 24 positive or negative?25 A. The best I remember it, yes.26 Q. In fact, let me read what's immediately following on the 27 same page. I mean it's a question or two later, but that 28 follows page 243, line 20 through 244 line 1. This is, again,

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1 questioning by Mr. Harris. 2 Question -- 3 MR. HARRIS: May I have a chance to look at it, Your 4 Honor. 5 MR. DREYER: Sure. 6 MR. HARRIS: I don't have an objection to reading this, 7 although there are other sections of the deposition that also 8 bear on this point if we want to start adding additional 9 sections.10 MR. DREYER: Well, I would object to that comment. That's 11 a representation that Mr. Harris is making.12 MR. HARRIS: Oh, no, I would propose an additional 13 section, if that were true.14 THE COURT: If you want to do a recross of those, that 15 will be fine.16 MR. HARRIS: All right. Thank you.17 MR. DREYER: Question: Okay. Was one possible 18 hypothesis that articles that said that PSLs were sold 19 out could have had a negative effect on these variables you were 20 looking at? 21 Answer: Well, one hypothesis could be that it could be 22 negative. One hypothesis could be that it could be 23 positive.24 Q. (By Mr. Dreyer) Remember being asked this question and 25 giving that answer?26 A. Yes.27 Q. In terms of your workup, when you did your analysis about 28 excess demand, you also provided the statistical information

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1 that Ms. Jamison referred to, the studies, the economic 2 research, group studies along with all these other 3 representations that have been made in the press release. The 4 press releases, the news, the ads, the whole context of 5 information that was available? 6 A. Yes, I reviewed all that that I received. 7 Q. And the last question I would ask, Dr. Dubin, before we go 8 to the lunch break is this: 9 Yesterday with Mr. Harris when you were talking about 10 price issues and tickets, the question was asked whether ticket 11 prices can affect -- we are going to talk about that this 12 afternoon -- ticket prices could affect purchasing? And you 13 indicated it could unless it's a price insensitive market, 14 right?15 A. That's what I said.16 Q. And the material you provided did, in fact, those 17 representations get made to the Raiders that the Raider fans 18 were price insensitive?19 A. Yes.20 MR. DREYER: It's noon, Your Honor. 21 THE COURT: All right. 1:30. Observe the rules.22 (Luncheon recess)23 ---oOo---

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1 MAY 22, 2003 2 AFTERNOON SESSION 3 --oOo-- 4 The matter of OAKLAND RAIDERS, a California Limited 5 Partnership, and A.D. FOOTBALL, INC., a California 6 Corporation, Plaintiff vs. OAKLAND-ALAMEDA COUNTY COLISEUM, 7 INC.; EDWIN O. DESILVA; and ARTHUR ANDERSEN, LLP, Defendants, 8 Case Number 97AS06708, came on regularly this day before the 9 Honorable RICHARD K. PARK, Judge of the Superior Court 10 District of the State of California, in and for the County of 11 Sacramento, Department 39.12 The Plaintiffs OAKLAND RAIDERS, a California Limited 13 Partnership, and A.D. FOOTBALL, INC., a California 14 Corporation were represented by ROGER A. DREYER 15 AND JONATHAN W. HUGHES, Attorneys at Law. 16 The Defendants OAKLAND-ALAMEDA COUNTY COLISEUM, INC.; 17 EDWIN O. DESILVA; were represented by JAMES J. BROSNAHAN, 18 GEORGE C.HARRIS AND MELISSA JONES, Attorneys at Law. 19 The Defendant ARTHUR ANDERSEN was represented by 20 FREDERICK S. FIELDS and STAN G. ROMAN, Attorneys at Law. 21 The following proceedings were then had in the presence 22 of the jury, to wit:23 --oOo--24 THE BAILIFF: Please remain seated. Come to order. 25 Department 39 is again in session.26 THE COURT: Skip, let's go. 27 / / / / / /28 / / / / / /

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1 REDIRECT EXAMINATION 2 BY ROGER A. DREYER, Counsel on behalf of the Plaintiffs 3 herein: 4 Q Okay. Dr. Dubin, in terms of your work, Mr. Harris 5 asked you about things like time and kind of consulting you 6 do and the projects you do and the time you spent on this 7 case, for example. Would it be fair to say you spent a 8 substantial amount of time in your workup in over the past 9 three years in connection with this case?10 A Yes, it is substantial.11 Q Let's talk about other projects you've been on. Have 12 you ever worked for the Nestle Company?13 A Yes.14 Q Okay. And what did you do for Nestle?15 A I was doing a study, I think I mentioned it the other 16 day, was involving the value of trademarks.17 Q Okay. And in that regard, what kind of studies or what 18 project were you doing?19 A Well, I was asked to evaluate the value of certain 20 trademarks like Fancy Feast and Carnation Coffee-mate, and I 21 did a very similar sort of approach. I collected the 22 information, read the literature, vast amount of information 23 from microfiche and so forth, and assembled the dataset and 24 built an econometric file.25 Q In that job function, have you ever worked in that 26 capacity before doing trademark work?27 A No.28 Q And the hours that you spent equal to more than what

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1 you've done in connection with this project? 2 A I think maybe that was twice as much time. 3 Q Okay. Did you work for the Department of Justice? 4 A Yes. 5 Q Can you tell us the projects you've worked for for the 6 Department of Justice on? 7 A The Department of Justice has called me to evaluate 8 mergers. One was a merger involving white bread in the 9 northeast that used scanner data, as I mentioned yesterday. 10 The other was a very large merger proposed between 11 Hewlett Packard and Phillips, a big company in Europe on 12 cardiac ultrasound equipment.13 Q Now, the Department of Justice was asking you to do 14 this evaluation in order to assist them in making a decision 15 whether they would prosecute or do some kind of an action 16 relative to enforcement. 17 A Yes. I was the expert that gave them the advice on 18 whether or not there would be competitive harm, and 19 ultimately on whether they should therefore prosecute or 20 oppose the merger.21 Q Did they follow your advice on those occasions?22 A Yes, in both cases.23 Q Have you ever purchased a -- ultrasound equipment for 24 cardiac?25 A No. I've never purchased a cardiac ultrasound machine.26 Q Have you ever worked in that field before?27 A No.28 Q Have you ever been asked to do an evaluation with that

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1 kind of equipment before? 2 A No. 3 Q The merger on dealing with the white bread products -- 4 A I have eaten white bread. 5 Q I'm sure you have. In terms of doing that kind of job, 6 do you need to have been out there working in one of those 7 companies in order -- or done a previous paper on these 8 companies to do the kind of statistical analysis that you did 9 in those situations?10 A No.11 Q In terms of -- you told us about Canada Post. That was 12 an issue dealing with demand and assessing demand, or what 13 was the product?14 A The product was catalog addressed ad mail, and the 15 issue was would businesses stop using advertised ad mail 16 which is the junk mail we get but that's addressed to us. 17 It's also called direct mail. Would businesses stop using 18 addressed ad mail if the prices were to go up by 15 percent.19 Q Okay. Had you ever done work of that nature before 20 Canada Post hired you?21 A Well, I've done demand studies, certainly, but not 22 regarding addressed ad mail products.23 Q All right. And the amount of time you spent on that 24 project, how would it compare with what you spent on this 25 project?26 A Well, there were two phases of that project. I would 27 probably say that was maybe twice as much time as this 28 project.

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1 Q In that situation, did they ask you to come back and 2 check your work at a later time to make sure that your 3 predictions were accurate? 4 A Yes. I told them that actually there was considerable 5 price insensitivity up in Canada for businesses, that 6 businesses would be captive if they raised the price, that 7 their arguments -- the businesses' arguments that they would 8 stop using addressed ad mail, stop sending catalogs to 9 people, that that was not actually accurate according to the 10 econometric evidence, and they did raise the price based on 11 my advice. They made a fortune doing it. I came back, and 12 they asked me to reevaluate whether what happened in nature 13 was what my predictions said would happen, and I was dead-on 14 accurate.15 Q Now, in dealing with this issue of price insensitivity, 16 you talked about it very briefly on one question with 17 Mr. Harris, and I asked you about it before we took the lunch 18 break. In an excess demand market, what does price 19 insensitivity means?20 A It allows -- it allows prices to continue to be raised.21 Q All right. And from a standpoint of a business looking 22 at a consumer, does that assist the business in determining 23 how they're going to set the price?24 A Oh, yes. The price sensitivity is a key element in 25 where a business will set price.26 Q Now, the during the break I pulled out a couple of 27 documents that deal with the NFL application that was made by 28 the OACC and the Oakland region and the people involved in

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1 that. And those materials you got in the initial information 2 you were provided initially, true? 3 A Yes. 4 Q Now, in those documents, does it, in fact, indicate 5 that it's their opinion, and they're representing the NFL, 6 that the Oakland region, the people that would be consuming 7 football, we're not talking about Raider football now, we're 8 talking about just football in general, that the 9 determination had been made that people were price 10 insensitive?11 MR. HARRIS: Objection, the document speaks for itself.12 THE COURT: We have seen that document. Sustained.13 MR. DREYER: Your Honor, I'm just dealing with it in 14 the context of what was addressed in cross-examination. I'm 15 not asking him to read the document. I'm asking whether he 16 has reviewed it, considered it and it's a component of his 17 opinions in this case.18 THE COURT: We don't need to repeat word for word the 19 language in the document. Restate the question.20 MR. DREYER: I'm not having him read it.21 Q The documents relate to the issue that they're 22 representing the NFL for any kind of football, not just 23 Oakland Raider football, that there is price insensitivity in 24 the region for football?25 MR. HARRIS: Objection to the question. It's stating 26 the information. The document speaks for itself. Move to 27 strike.28 THE COURT: You're asking for his opinion about what

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1 the document states? 2 MR. DREYER: Yes, sir. 3 THE COURT: He may be an economist, but he has no 4 greater knowledge than the jury about what the document 5 states. Objection sustained. 6 Q (By Mr. Dreyer) In the document, the NFL applications, 7 are representations made relative to price insensitivity? 8 MR. HARRIS: Same objection. 9 THE COURT: Overruled.10 THE WITNESS: Yes. The price sensitivity is an issue 11 that's discussed in these documents.12 Q (By Mr. Dreyer) All right. Now, Mr. Harris talked to 13 you about the pricing that was set in connection with the 14 Raiders when they returned back to Oakland, true?15 A Yes.16 Q Remember he showed you a document that indicated that 17 when they came back the price they had set was the highest 18 price in the NFL, right?19 A Yes.20 Q All right. Now, pricing sensitivity in an excess 21 demand market, if representations had been made that were 22 made to the Raiders were true, what factor does that play in 23 setting a price for a football team, you know, general 24 admission ticket?25 A Well, it's a factor to be considered in the sense that 26 higher prices are certainly possible.27 Q All right. Now, in terms of a team in an excess demand 28 market, you talk about excess demand in football, and

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1 Mr. Harris talked to you about LA and performance and 2 attendance and things of that nature, factors like a team 3 returning to a region that they had been gone from for 11 4 years with a core base of fans, would that be one of the 5 factors that would assist with an excess demand market? 6 A I think it would, sure. 7 Q In terms of if there was a core base of fans, is that 8 going to assist in this kind of -- strike that. 9 Is a core base of fans for a team like the Raiders, is 10 that another thing that factors into the having an excess 11 demand market?12 MR. HARRIS: Objection, no foundation.13 THE COURT: Overruled.14 THE WITNESS: Yes, it does, certainly.15 Q (By Mr. Dreyer) How? How does it fit in?16 A Well, there's this evidence that there are people who 17 have experience with the Oakland Raiders that want them back. 18 Those were the documents that I was reading. There was a 19 ground swell of enthusiasm about getting this team back. 20 That suggests to me the foundation for excess demand was 21 present.22 Q Now, when Mr. Fields asked you this morning about 23 whether someone today is going to pay 75 percent for a PSL in 24 2 to 3 years, is the analysis of what someone today is going 25 to do different than looking at an excess demand market that 26 existed back in 1995?27 A Absolutely.28 Q How is it different?

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1 A Well, the market is very different today. Among other 2 things that Mr. Howell has testified that the market has been 3 poisoned, and I put it differently in my report. I said that 4 fans had begun to cherry pick. The equilibrium was such that 5 the season ticket base eroded from year to year as fans 6 discovered that they could go to the games that they wanted 7 to go to, but the enthusiasm was no longer present. 8 Q When you have a market with excess demand compared with 9 a market where there is not excess demand, do you have an 10 opinion whether team performance becomes a larger factor in 11 the decision making process whether to attend the game?12 A Oh, I think that in the excess demand market -- I mean, 13 common sense. You want your team to win. When I watch 14 football, if I have a team that I am interested in, of course 15 I want them to win. But in an excess demand market, to some 16 degree, as we've seen in the empirical data, teams are 17 insulated from performance. If the team does poorly, there's 18 no -- there's not really much happens because there are 19 always other fans that are still interested in going.20 Q And if you have a market where the demand is no longer 21 excess demand, how does that affect team performance as being 22 a factor or more of a factor?23 A In that situation, you've got a smaller season ticket 24 base, in my opinion, and therefore, many more tickets are 25 available. Many more tickets are going to be purchased in a 26 day-of-game type setting or in advance of the game, but only 27 shortly in advance, and fans can essentially cherry pick. 28 They can figure out, you know, do I want to go to this one or

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1 do I want to go to another one, but they're not bound to the 2 sale through the season ticket. 3 Q Now, in the Oakland Raider situation, and I want to put 4 up -- let's put up 438, please. 5 Mr. Harris gave you 2157. I'm just going to give you 6 my copy so you have it. 7 A Thank you. 8 Q And I have 438 up there. Now, 438 was a graph you 9 showed to compare the A Group, and let's just get back to 10 that.11 Let's take 438 down and put up 432, please.12 Okay. 432 compares sellouts with season ticket base to 13 see how season ticket base, when it's higher, affects sellout 14 performance, right?15 A That's correct.16 Q All right. So we have the Group A, B and C. Just so 17 we're reminded what Group A is, the Group A is the group with 18 the strong season ticket base which produces the sellouts 19 year after year after year after year?20 A It's in fact both things together. It's teams that 21 have sellouts and very strong season ticket bases.22 Q Let's put back 438, please.23 Now, 438 shows us in the green column what Group A has 24 done on an average basis relative to season ticket sales as a 25 percentage of capacity of the stadium, right?26 A Correct.27 Q Now, what we have in the gray column is we see the 28 Raiders' season ticket sales as a percentage of capacity,

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1 true? 2 A Correct. 3 Q Now, we've heard and we are aware that in '96 there was 4 the expansion, and we're going to talk about that as a 5 factor. You understood that from the very beginning the plan 6 was to expand the stadium, right? 7 A Yes. 8 Q Whose decision it was or who wanted it, or -- those 9 factors, was that any part of your component of your 10 analysis?11 A No.12 Q All right. Now, the first season in 1995 demonstrates 13 there's -- in your opinion, there is this 72 percent season 14 ticket sales. It's kind of a soft season tickets sales, 15 right?16 A Yes.17 Q That would not put it in the Group A category if you 18 had a 72 percent season ticket sales, true?19 A That's correct.20 Q All right. And Mr. Harris talks about -- again, with 21 that exhibit in front of you, you have the team performance. 22 When you looked at team performance, does it make sense to 23 look at the end of the year team performance to see how it 24 affects whether people will, you know, buy tickets, or do you 25 look as it progresses during the course of the year?26 A I'd like to look at both, but most of my models are 27 based on how performance is progressing during the year.28 Q Okay. Now, when you look at this chart, this deals

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1 strictly with season ticket base, correct? 2 A Correct. 3 Q This is not the sellout concept of just -- you're just 4 counting how many people are in seats total at the end of the 5 year, true? 6 A True. Except my sellout concept's based on ticket 7 sales, not in seats per se. 8 Q Okay. Understood. Ticket sales. 9 Now, we know from 1995 it has ticket sales as opposed 10 to season ticket sales, and as ticket sales that fall into 11 the plus 95 percent category, your definition of a sellout, 12 right?13 A Correct.14 Q Now, what percentage of those seats were purchased by 15 businesses or sponsors or entities to get the team to a 16 sellout to qualify for a blackout as opposed to fan base 17 buying tickets, do you know?18 MR. HARRIS: Objection, hearsay.19 THE COURT: I think you're asking for a fact rather 20 than an opinion.21 MR. DREYER: I am, and I --22 Q Is any of that information incorporated into your 23 analysis?24 A No, it's not.25 Q You're just counting how the tickets got there, who 26 bought them or who bought blocks of tickets, if it was done, 27 that was not something you considered, true?28 A Well, not really counting how they got there. I'm

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1 counting just the fact that they were sold. 2 Q All right. And that would also apply for the year 3 2002. On this chart, 438, you have, again, season ticket 4 sales, right? 5 A Yes. 6 Q And Mr. Harris asked you about this, and it was in the 7 deposition, the 93.7 percent, that is the total number of 8 seats sold versus capacity, true? 9 A Yes.10 Q As to how many sponsors or whether individuals or 11 groups or companies purchased, or the Raiders had something 12 done to purchase large blocks of tickets, last minute to 13 qualify for -- to avoid the blackout, you just don't know 14 that, do you?15 A I don't know that.16 Q Now -- okay. Getting back to 438. Again, looking at 17 season ticket base, that, in your opinion, as you told us, is 18 the factor that tells you about excess demand that assists 19 you in predicting ongoing sellouts, fair?20 A Season ticket base is a very important factor, yes.21 Q All right. These are your fans that buy their tickets 22 early in the season, and you can count on them, you know that 23 the tickets are sold, true?24 A Yes.25 Q And if they decide not to show because it's raining or 26 they decide not to show because it's the Cincinnati Bengals, 27 as far as selling tickets, it doesn't matter, does it?28 A As far as selling tickets, it doesn't matter.

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1 Q Now, in 1996, the season ticket base diminishes, true? 2 A Yes. 3 Q All right. Now, in that regard, that's certainly from 4 a demand standpoint, that demonstrates to you that the market 5 for these season tickets is no longer -- if the 6 representation had been true and it was an excess demand 7 market, we're no longer an excess demand market, true? 8 MR. HARRIS: Objection. Complex, compound, vague. 9 THE COURT: Restate it.10 Q (By Mr. Dreyer) Is this an excess demand market?11 A No, it's not.12 Q What happened to the market, why its failed in that 13 regard, you haven't studied that, true?14 A I haven't.15 Q That's -- in terms of going back in retrospect and 16 looking at everything, you haven't been asked to do that to 17 determine why it failed in terms of that market?18 A No, I haven't studied that.19 Q Now, the next year, 1997, the season ticket base, 20 according to your statistical analysis, continues to 21 diminish, true?22 A Yes.23 Q It would be consistent again with an environment where 24 you don't have excess demand existing there now, true?25 A And things are getting worse.26 Q And they're getting worse. 27 All right. Now, if you look at the exhibit in front of 28 you, Mr. Harris' exhibit, that says the record of the team is

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1 4 and 12, I think, in '97, right? 2 A Yes. 3 Q All right. Now, let's focus for a moment here on 4 season tickets and performance being a factor, and let's just 5 kind of take a step away just for a moment, hold this point 6 in time, and let's talk about these articles. 7 Do you remember Mr. Harris brought up these two 8 articles, the Noll article and the Welki article? 9 A I think he asked me about a Noll article.10 Q All right. Let's talk about the Noll article. This 11 article was published when?12 A I think it was in the early 1970s.13 Q And the statistical information in the Noll article 14 would have been from what time frame?15 A Professor Noll, I think, was looking at 1968 and 1970 16 football.17 Q Now, in his analysis, did he, in fact, acknowledge that 18 excess demand was a recent phenomena that he saw happening in 19 the NFL in this period of time?20 A Yes, he did.21 Q All right. Now, as an economist having the benefit of 22 being able to look back to 1970, considering your studies 23 that you have done now in 2000, is it -- and based upon the 24 regression models you've done and all of the analysis that 25 you have done, has in fact over the 30 years the NFL market, 26 the NFL product, if you will, been one that's demonstrated 27 excess demand?28 A Yes.

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1 Q All right. And in terms of the statistical analysis 2 that Dr. Noll did back in 1970, is that something that would 3 be a reliable predictor for what's happened in 1995? 4 A Not particularly, no. 5 Q Why not? 6 A Well, it's very dated and the conditions have changed. 7 He says excess demand is only a recent phenomena, so he's 8 talking about really an entirely different football 9 situation. I cited the Noll article primarily for its method 10 which was to look at certain factors. It gave me some 11 information about what factors Professor Noll thought should 12 affect football, and the factors that he selected using 13 annual observations were pretty similar to mine in some 14 respects.15 Q Okay. Now, the second article that talked about team 16 performance relative to attendance, and those articles talk 17 about attendance, true?18 A Both the Noll and the Welki paper are studies of 19 attendance.20 Q Did either of them address this concept of season 21 ticket base versus sellout?22 A No.23 Q Did either of them ever address the concept of what 24 effect a PSL, whatever kind of PSL it is, would have on 25 protecting season ticket base?26 A No.27 Q That topic, is it even discussed or referenced at all 28 in your articles?

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1 A I don't think PSLs existed when those articles were 2 written. 3 Q All right. Now, in terms of -- and I'm just calling it 4 the Welki article. Obviously there was a couple of authors 5 to it. In that article, their method of modeling and looking 6 and analyzing the data, was it similar to yours? 7 A It was more similar in the sense that it looked at 8 tickets game by game, but it was also done for a pretty early 9 time period, as I recall, the late 1980s.10 Q Now, again, does that -- that period of time, is 11 that -- I mean, the analysis, is it useful to you?12 A Yes. It indicated some significant factors to examine 13 further in the more recent NFL. 14 Q All right. And when you looked at their analysis, did 15 you go back and check it, and check the math and see whether 16 their information was consistent with yours?17 A I couldn't really get behind their data. In other 18 words, I didn't have access to their actual numbers that were 19 used to estimate their models, so I didn't check it in that 20 sense. What I did was I looked through their tables and 21 their actual results, and I was able to calculate the 22 perform -- the magnitude of the performance effect that was 23 implied by their article, something that they had not done.24 Q Now, in terms of NFL team and demands, you've told us 25 that performance can be a factor in assisting and selling, 26 right?27 A Yes.28 Q All right. And in terms of looking at its effect,

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1 factor, are we talking about a substantial factor, a 2 diminimus factor, how would you characterize or describe it? 3 A I would say it's a small factor. I remember the 4 25 percent bar, and then the little tiny bar is below it. I 5 think it's a small factor. 6 Q Now, Mr. Harris' Exhibit 2159, this is the 7 SportsBusiness Journal. Now, it has the Houston Texans on 8 it, right, the 2002 statistics? 9 A I guess it does.10 Q Now, on your chart, if we can put up 432, again.11 Now, the Houston Texans aren't on this document, 12 correct?13 A I don't see them.14 Q And that's because they didn't play in 2000. They're 15 an expansion team, right?16 A I believe they're a brand new team.17 Q All right. Now, in terms of being a brand new team 18 with no history of performance and being an expansion team 19 with no record, if team performance is going to dictate 20 whether fans are willing to buy seats, you would expect an 21 expansion team that never played, if it was some kind of 22 significant factor, that factor you would think would be a 23 predictor on whether people would buy tickets or not, right? 24 A If it was a big factor, people might hedge their bets 25 and say, I'm going to wait to buy and see how they do, or 26 something like that.27 Q Now, the information on the defense exhibit there 28 demonstrates the attendance is quite to the contrary as it

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1 relates to the issue of whether people are hedging their 2 bets, right? 3 MR. HARRIS: I object to hearsay. 4 THE COURT: You objected on hearsay grounds when he 5 tried to put it in. 6 MR. DREYER: I'm not putting it in. I'm just asking 7 him to look at it and review it and address my question. I 8 haven't asked him -- 9 MR. HARRIS: I would be glad to go into the contents.10 THE COURT: It sounds like we're going to hear content. 11 Why don't you rephrase the question.12 MR. DREYER: Sure.13 Q This information, as Mr. Harris asked you about, you 14 look at these kind of documents to assist you in looking at 15 how teams do in terms of attendance and information, right?16 A Well, the SportsBusiness Journal is something I have 17 looked at. I don't think it's as reliable as the NFL 18 statistics, but I have looked at it.19 Q And you don't have the benefit of the NFL statistics 20 for the Houston Texans for the 2002 season because it hasn't 21 come out, right?22 A Right.23 Q And in looking at this information and just assuming as 24 it relates to the Texans that it's in the ballpark of 25 accuracy, if you look at that number, does that indicate to 26 you that's an excess demand market or a market where people 27 are hedging their bets?28 MR. HARRIS: Same objection, your Honor. I think I

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1 should be allowed to go into the contents of the document. 2 THE COURT: You're asking him to base a hypothetical 3 question on hearsay material which he, himself, says is 4 unreliable. He can't do that. The objection is sustained. 5 Q (By Mr. Dreyer) Do you know from your information 6 outside of that, the journal, do you know how the Texans 7 performed attendance-wise? 8 A It was my impression that they did very well, but I 9 don't know exactly how well in terms of attendance.10 Q I want you to assume for us that if an expansion team 11 that had never played before, never gained one yard in a 12 football game, sold out in its very first year, just assuming 13 that to be true, would that be consistent with a team that 14 has excess demand?15 A Yes.16 Q Is that consistent with your opinion that the NFL 17 product is one that demonstrates excess demand?18 A Yes.19 Q And would -- what would that tell you about team 20 performance relative to affecting people buying tickets?21 A That again, if the scale -- on the scale of things, 22 it's down there at being very small or of lesser importance 23 than other factors.24 Q All right. Now, let's go back to 438, please. 25 Now, 438, in 1998, the season ticket base continues to 26 erode for the Raiders, does it not?27 A Yes.28 Q And that would tell you, if we look at this statistical

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1 information, that is going to kind of help us have an 2 understanding as to whether this is an excess demand market 3 when it's going down every year versus an excess demand 4 market, true? 5 A Yes. 6 Q And the potential of remarketing PSLs five, six, seven 7 years from then, it's going to be tough if your market is 8 that kind of market? 9 A It's going to be very tough.10 Q All right. Now, different -- would it be completely 11 different from a market which, if the representations had 12 been true in 1995, an excess demand market?13 A Absolutely different.14 Q Now, the record on Mr. Harris' exhibit there of the 15 Raiders in 1998 was what?16 A Eight and eight.17 Q Okay. And I call it Mr. Harris' document. It has your 18 Bates number at the bottom, doesn't it?19 A Yes. I have seen this document.20 Q So we have a team now that goes eight and eight, which 21 means that it's doubled its wins from the previous year?22 A Yes.23 Q So statistically, just looking at statistics, there's a 24 team that's improved 50 percent?25 A Hundred percent.26 Q Hundred percent. Excuse me. That's why I'm not an 27 economist. A hundred percent in its performance, right?28 A Yes.

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1 Q All right. Now, let's go to 1989 season ticket base. 2 Now, these would be people that are buying season tickets for 3 the next year after the team has improved a hundred percent 4 in its rate, and what happens to the season ticket base? 5 A It's still declining. 6 Q Now, if you look at that information, 7 Mr. -- Professor Dubin, if you look at that information, what 8 does that tell you as to what factor team performance plays 9 in people buying season tickets?10 A It's not a very important factor.11 Q You're not saying that people don't care about whether 12 their teams wins or loses, are you?13 A I know as a fan, I care.14 Q Now, in your experience in professional sports, in your 15 report, you address teams that have had losing records year 16 after year and they still have excess demand, right?17 A Yes.18 Q Okay. Sacramento Kings?19 A I cite the Kings as an example of a team that came to 20 Sacramento and lost for a long, long time, but from the 21 get-go was constantly sold out.22 Q That's an example of an excess demand market, true?23 A Yes.24 Q Now, in terms of this, if job -- if team performance is 25 some substantial factor, and if a team improved a hundred 26 percent in its record, wouldn't you expect the season ticket 27 base to climb when that happens, assuming it were a major 28 factor?

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1 A I would. 2 Q Now, the year 2000. The record in 1999 was what? 3 A In 2000, it's 12 and 4. 4 Q All right. 5 A For the Raiders. 6 Q And in 2001, it's what? 7 A Ten and six. 8 Q And in 2002, it's what? Does it have it there? 9 A No.10 Q Okay. Now, in terms of looking at these numbers and 11 how season ticket sales perform, and comparing it with just 12 looking at the Raiders, not looking at the NFL as a whole, 13 but just looking at the Raiders, if someone were to draw the 14 conclusion that season ticket performance is some kind of 15 substantial factor that impacts whether people buy season 16 tickets or not, do you have an opinion whether that would be 17 a fair conclusion to reach, just looking only at the Raiders?18 A No. I don't think that would be fair at all.19 Q Do you base that on your background and your experience 20 as an economist and the research you've done in this case?21 A Yes.22 Q Now let's go to 432.23 Now, 432 talks about season ticket base and sellouts, 24 true?25 A Yes.26 Q All right. Now, this document, in terms of team 27 performance, if -- I want you to assume for me -- the Chicago 28 Bears in this time frame from 1995 to 2001, and in fact, what

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1 I would like to do is put up Exhibit 431. And so you don't 2 have to look at that monitor, I'll give you my copy. 3 A Thank you. 4 Q This is the -- can we just bold in on the graph itself. 5 Now, this is the season ticket base that has the actual 6 percentages, correct? 7 A It's the chart where I not only have the colors, but 8 also the percentage for the season ticket base. 9 Q If you look at a team like the Chicago Bears, the first 10 team you have in Group A, 1995 to 2001, I want you to assume 11 for me that in that time frame that the Chicago Bears 12 performed poorly, and I want to you assume that means that 13 maybe they have one winning season in that entire time frame 14 and the rest are basically losing seasons. Just assume that 15 to be true. 16 A Okay.17 Q What would that tell you about team performance playing 18 a factor in season ticket base?19 A It almost has no factor.20 Q All right. If you look at a team like the New York 21 Jets in Group A, and you look at its season ticket base -- I 22 mean, the smallest season ticket base it has is 96 percent of 23 capacity. 24 A Right.25 Q That's a phenomenal number, right?26 A There's more to going to a football game than just 27 whether the team is winning or losing.28 Q If the Jets in that time frame are at best a mediocre

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1 team and maybe have one decent year, but for the most part 2 are mediocrity, what would that tell you about team 3 performance predicting season ticket base? 4 A It has a very small effect. 5 Q Is that consistent with your analysis? 6 A Absolutely. 7 Q Let's look at the Washington Redskins. Now, the 8 Redskins, I want you to assume for me they have a history of 9 having one championship and being a very high quality team 10 years ago, you know, more than ten years ago plus, and that 11 in this time frame they're again a very mediocre team, maybe 12 in that time frame having one winning season, for the most 13 part, pretty mediocre. Their lowest season ticket percentage 14 is 94 percent, right?15 A Yes.16 Q What does that tell you about team performance 17 predicting season ticket base?18 A It's not a very important predictor.19 Q Doctor, if a team has excess demand and they're in 20 Group A, what does that tell you how the team is going to do 21 in terms of revenue from season ticket base versus a team 22 that doesn't have a strong season ticket base?23 A They're going to do much better if they're an excess 24 demand team, a Group A team, because the tickets are sold in 25 advance and the money has already come in.26 Q What impact is it going to have on revenues from 27 season -- in terms of selling out your stadium if people 28 don't show up, if there are no-shows?

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1 A No-shows are detrimental to other things like 2 concessions, parking, all of the consumables that go along 3 with the game. 4 Q But how about in terms of people paying to go to the 5 game, how does that affect it? 6 A You lose those, too. 7 Q All right. In terms of from your perspective, PSLs, if 8 a team has a PSL -- strong PSL base, have you looked at how 9 that affects or insulates season ticket base?10 A Yes.11 Q All right. Now, Mr. Harris asked you questions 12 relative to PSL information. You remember that yesterday?13 A Yes.14 Q And you said, I don't have my worksheet. I would need 15 my worksheet to answer that question, right? 16 What's Exhibit 449?17 A 449 is an exhibit that I prepared that summarized the 18 teams when they moved to a new city, when they joined the 19 NFL, when they began construction of a new or substantially 20 remodeled stadium, when the new stadium was first used, and 21 also whether the team had a PSL and the season in which the 22 PSL started.23 Q Is this the worksheet you were talking about you need 24 to look at to determine what teams had PSLs, things of that 25 nature?26 A Yes.27 Q Okay. Now, in terms of your workup on this case, did 28 you determine whether teams -- let's forget about the Raiders

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1 for a second -- teams having a PSL, what impact that had on 2 insulating their season ticket base? 3 A Well, forgetting about the Raiders? 4 Q Yes. 5 A I made one assumption about PSLs, which is that an 6 excess demand, it was common sense to me that an excess 7 demand, if you purchased a PSL, you would also purchase 8 tickets. But I also did empirical work to look at the effect 9 of PSL programs on the likelihood that a team would sell out 10 from season to season.11 Q What did your -- what did your analysis demonstrate?12 A Well, when I looked at that, I found, in fact, that the 13 presence of PSL programs actually increase the probability or 14 likelihood that a team would continue its excess demand and 15 continue its likelihood of selling out.16 Q Okay. Now, Mr. Harris asked you this morning about 17 stadium capacity. And in fact, you read a paragraph out of 18 your article.19 Do you remember that?20 A Yes.21 Q That was your article that was published entitled 22 "Empirical Studies and Applied Economics," right?23 A Yes.24 Q Now, in terms of stadiums, new stadiums and existing 25 stadiums being expanded, did you look at the statistical 26 information to demonstrate what affect that had in the NFL, 27 forget about the Raiders for a moment, as it relates to 28 season ticket base?

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1 A I found -- yes, I did. 2 Q What was your results? 3 A Well, my findings were that teams that moved to newer 4 substantially remodeled stadiums had again the higher 5 likelihood of continuing to sell out or to continue the 6 excess demand, if present. 7 Q And do you have an opinion as an economist, based on 8 your background, training and experience, why that happens in 9 the NFL?10 A Yes.11 Q What's your opinion?12 A Well, that fans like new stadiums.13 Q Does that make sense?14 A Makes sense to me, yes.15 Q Is that part of this kind of common sense test to what 16 you see with empirical data?17 A Yes.18 Q Now, in your opinion, if the representations that had 19 been made to the Raiders that you have seen in the materials 20 that you had been provided had been true in 1995 before 21 August 7th, do you have an opinion as to whether the 22 expansion that was planned and called for by the parties in 23 1996, whether that excess demand would be impacted in any 24 type of negative fashion by the expansion?25 A I have an opinion, yes.26 Q What's your opinion?27 A Well, I did a study of the change in capacities of 28 stadiums, whether or not stadiums increased in size or

page 5387




1 decreased in size across the NFL, and I found that decreasing 2 stadium sizes raised the chance that a team would sell out. 3 You've got a smaller place, so higher chance of selling out 4 again. But I also found that for teams that increased the 5 size of their stadiums, there was no decrease in the 6 likelihood that a team would have its excess demand persist. 7 Q Now, let's talk about something that Mr. Harris asked 8 about yesterday. Remember this discussion that dealt with 9 the 95 percent multiplying it by itself?10 A Yes.11 Q And you talked about the 95 percent to the 14th power, 12 and you kind of ballparked it in your head yesterday?13 A Yes.14 Q Did you go home and check your ballpark and your math 15 in your head with a calculator?16 A Yeah. My mistake.17 Q What was the number?18 A Mr. Harris was right. It was closer to 49 percent than 19 it was the 52 percent.20 Q All right. Now, this analysis of multiplying 95 21 percent times itself under this set of facts, do you think 22 that's an appropriate way of determining what happens over 23 the length of the lease?24 A No, it's not.25 Q Why not?26 A Well, there's two reasons. One's a little technical, 27 but these probabilities of -- these likelihoods of things 28 persisting over time have been studied by economists,

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1 including Nobel Prize winning economists, for years and 2 years. And some of the literature says that when you measure 3 the likelihood of something happening, given that something 4 else has happened, in other words, of the likelihood of, 5 let's say, a sellout or excess demand, given that a team was 6 already in excess demand and you were to string those 7 probabilities together, what you would do is you would 8 underestimate the persistence. 9 In fact, empirical researchers such as Professor McCall 10 at Stanford writing in 1970 observed that strings of events 11 are actually more persistent than can be estimated by these 12 probabilities. That is the first technical reason.13 Q Is there another reason?14 A Yes, there is another reason. 95 percent is an 15 underestimate of the probability that the Raiders, had they 16 begun in excess demand and would continue to be in excess 17 demand, because it doesn't give any credit to the fact that 18 the Raiders would be in a new or remodeled stadium, and it 19 doesn't give any credit to the fact that there was a PSL 20 program in place.21 Q Okay. Now, have you factored those in, how that would 22 affect this 95 percent?23 A Yes. It would be higher.24 Q Okay. What do you base that opinion on?25 A Well, I've looked at teams across the league to see 26 what happens when they remodel a stadium, and fans like it, 27 and the likelihood of selling out goes up. And I've also 28 looked at teams that have had PSL programs, and have found

page 5389




1 that the presence of a PSL program kind of glues things 2 together in such a way that the likelihood goes up even 3 higher that excess demand will persist across time. 4 Q So higher than the 95 percent? 5 A Yes, higher than 95 percent. 6 Q We've got to take care of our highly technical 7 correction so Mr. Fields and I don't break a sweat there. 8 Okay. Now, from your perspective -- and this concept 9 of stringing together, let's look at Exhibit 434. If we 10 could put that up.11 Does 434 show us historically what happens with teams 12 in excess demand markets and when they're stringing sellouts 13 together?14 A Well, it shows us that there have been long, long 15 strings of sellouts. I can't tell you going all the way back 16 in time that all of those teams were in excess demand because 17 I didn't have that data.18 Q Now, in this case, if the representations had been true 19 in '95, if the excess demand had existed and you have the PSL 20 sellout and suite sellout and club seats sellout for '95 and 21 '6, your opinion that it would -- that sellout string would 22 stay together, glue together, as you describe it, through the 23 term of the lease? Is it based upon the statistical 24 information and the studies you have done?25 A Yes.26 Q And this concept of multiplying 95 percent times 95 27 percent, is that a fair way or appropriate way of looking at 28 that predictability issue?

page 5390




1 A No, it's not. 2 Q Now, ticket prices. Mr. Harris asked you about ticket 3 prices, and you touched on that. And I'm going to show you 4 what's been marked as Exhibit 437 -- excuse me, 447. I'll 5 represent to you this is a document that was prepared by 6 Mr. Nye that maps out percentages for different teams -- 7 I'm sorry, Sheila, can I get another copy of that. 8 447, this shows the ticket prices of four teams at 9 different times, correct?10 A Yes.11 Q It shows, for example, the price. He has Oakland in 12 1990. For example, there was no team in Oakland in 1990, 13 true, that team was in LA?14 A Yes.15 Q But it shows, for example, what the price was in 1994, 16 true?17 A 1990? 18 Q 1994. 19 A I'm sorry.20 Q If you look at Oakland 1994, it shows a price, true?21 A Yes.22 Q And then it shows a dramatic increase in 1995, $20 23 increase, right?24 A Yes. I was just confused by Mr. Nye saying that 25 Oakland was in -- I guess since Oakland was in LA, I was 26 confused by why he said Oak -- when they were in Los Angeles, 27 why they were still Oakland, but go ahead.28 THE COURT: Excuse me one second. Skipper, would you

page 5391




1 mind running this up to Glenda. 2 MR. DREYER: Does that mean he minds or he will? 3 THE BAILIFF: I don't mind. 4 THE COURT: Even if he did, he's too polite to say so. 5 Thanks, Skipper. 6 THE WITNESS: So I see the $20 increase. 7 Q (By Mr. Dreyer) Now, Dr. Dubin, when Mr. Harris -- 8 when we looked at 435, it showed in LA there was a string of 9 nonsellouts, right?10 Let's put 434 back up there. 11 A Yes. I recall that now.12 Q Down at the bottom where it has Los Angeles Raiders, 13 you put that down there because they weren't in Oakland, they 14 were in LA? 15 A Right.16 Q And the black means they're no longer in LA, right?17 A Right.18 Q Because we now know they're in Oakland?19 A Right.20 Q Now, they have a string of nonsellouts, true?21 A That's correct.22 Q Did you do any studies -- were you asked to do any 23 studies as to why the teams weren't selling out back in LA in 24 that time frame?25 A No.26 Q Whether it was stadium capacity issues or health of the 27 facility issues or fan based or anything of that nature?28 A No.

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1 Q All we know is in looking at this document, the 2 statistical information tells us they weren't selling out, 3 right? 4 A That's correct. 5 Q Okay. And so the Raiders, if we look at this 6 information, indicates they left the market that they weren't 7 selling out where they were being paid for tickets $20 less 8 than what they were going to get in Oakland, right? 9 A What they did get in Oakland.10 Q Okay. Now, this Oakland ticket price, looking at 11 Mr. Nye's document, and going from 1995, over on the 12 right-hand side he has a column. See "1995 to 2001"?13 A I see that.14 Q It says "growth rates"?15 A Yes.16 Q Okay. And it indicates the growth rates for each team 17 in that six-year time frame, does it not, on the prices?18 A Yes.19 Q And the rate of growth that he's calculated for the 20 Raiders is what?21 A 0.21 percent.22 Q Is that consistent with your analysis that you had on 23 Exhibit 444?24 Can you put 444 up there, please.25 Where it says "Raiders' rate of price increase was 26 effectively zero between 1996 and 2001."27 A It's consistent, yes. It's -- I also went on to 28 explain why there was any price increase since in fact in

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1 that period the Raiders did not increase prices, but yes, 2 it's consistent. 3 Q Now, in that six-year time frame, Dr. Dubin, at the 4 bottom he indicates average, high and low, like what's the 5 highest growth rate and what's the lowest growth rate, true? 6 A Yes. 7 Q Where did the Raiders stand in terms of growth rate in 8 that six-year time frame? 9 A Six years -- there's six years of changes. I think 10 it's a seven-year time frame.11 Q Seven-year time frame?12 A Well, there are -- I think they're at the very bottom. 13 There's nothing smaller here, that the range was from 14 7.1 percent to 16 percent per year, and the Raiders were at 15 0.2 percent.16 Q All right.17 A They were 28th. There's a line actually that says 18 "Raiders' rank." So they were 28th. And I don't know who 19 was smaller, but I don't see them.20 Q Now, Mr. Harris asked you the question, looking at the 21 price differential, and I think he showed documents that 22 indicated that the Raiders were number four in 2001 in terms 23 of price, and that based -- compared to the average, they 24 were about six dollars more than the average, right?25 A Yes.26 Q Okay. What is -- understanding there's eight regular 27 season games, what is eight times six?28 A I don't know if I could answer that question.

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1 Q What is it, please? 2 A Okay. 48. 3 Q All right. So we're talking about for an eight-game 4 regular season, that would be -- a fan would be paying 5 $48 more over the course of that season on the -- compared 6 with the average, right? 7 A On average, yes. 8 Q Now, understanding the NFL product that you've studied, 9 in an excess demand market, would you think that would be a 10 factor in whether a fan would buy a ticket or not?11 A No, not when there's price insensitivity, not at all.12 Q All right. Now, the decision-making process that 13 happened in this case as to the price of the ticket, you 14 don't have any information about that. We didn't ask you to 15 assess who decided what relative to that topic, true?16 A That's correct.17 Q Do you have an opinion, based upon your background and 18 your training and your experience, based upon your studies in 19 this case and understanding your work relative to the NFL 20 product, do you have an opinion whether in an excess demand 21 market in 1995, whether $51 in a market that's identified as 22 being price insensitive, whether that would have created a 23 problem for people buying tickets?24 A I don't think it should, no. 25 Q All right. Mr. Harris asked you about -- before we 26 leave this topic of excess demand, the initial economic 27 condition, that is 1995, how important -- as an economist in 28 your field, how important is the initial economic condition

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1 in an excess demand market? 2 A I think that's very important. I wrote about that, and 3 I think it's very important. 4 Q Can you explain to the jury why you think it's 5 important, based upon your opinion? 6 A Well, Professor Becker started off theoretically by 7 saying that things could go one of two ways. You could have 8 excess supply or excess demand. And it's important that 9 things start off on the right foot, that you're in excess 10 demand when you begin.11 One reason is that excess demand is going to persist 12 for a long time. If you start off on the right foot, you're 13 going to be good for a long, long time. If you start off on 14 the wrong foot, things are going to deteriorate, and it's 15 going to be very very difficult to get back out. I don't 16 even know if you could get back out of excess supply.17 Q Is that consistent -- I want you to assume that 18 Mr. Howell testified that compressed marketing time, the 19 initial marketing is crucial to the success of a program. Is 20 that consistent with that marketer's opinion?21 A Yes, I think it is, yes.22 Q Now, in terms of -- one last thing. I see a note to 23 myself that Mr. Harris talked about this concept of 24 T statistics?25 A Oh, yeah.26 Q I'm not an economist. I don't understand that.27 Can you describe to the jury, first of all, what does 28 this term "T statistic" mean?

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1 A Well, not only do we want to measure things, but we 2 want to know how significant they are. We want to know, for 3 instance, when we compare, say, the weight of a child to the 4 height of a child, whether we have enough observations to say 5 that we've got an accurate estimate. 6 And the T statistics tells us whether a factor is 7 statistically important. And what that means is an economist 8 or a statistician would be able to say to a certain degree of 9 probability, like 95 percent or something like that, that 10 this factor is important or not important.11 And when this T statistic that comes out of the 12 regression analysis is larger than two or larger than two in 13 a negative direction, so minus two or plus two, whenever that 14 happens, someone can say the factor has statistical 15 significance. But if the T statistics is smaller than that 16 range, then the statistician would conclude that there is no 17 effect of the 95 percent level of competence. 18 Q Now, Mr. Harris asked you about numbers, you know, ten, 19 nine, seven, four, something like that, relative to the 20 T statistic. In terms of you doing your analysis, do those 21 numbers -- I mean, to us, they're different numbers. To you 22 as an economist, did they develop some kind of ranking?23 A Oh, no. I teach students this all the time. You do 24 not rank T statistics. It's a meaningless exercise. No 25 professional or academic statistician would rank the 26 T statistics.27 Q So if someone were to argue or infer that because a 28 T statistic has a higher number than another T statistic that

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1 bears some kind of ranking, is that an accurate inference to 2 draw? 3 A No. In fact, there was a terrific paper, not that 4 you're going to go find it, by another professor, and I can't 5 recall the title, but it was something like -- it was about 6 the difference between significance and magnitude. It's 7 Professor McCloskey's paper, and he points out the fallacy in 8 trying to compare the T statistics. 9 Q It's something you do in your calculation with your 10 formulas to figure out what are factors that bear 11 significance and to what extent?12 A Yeah. It's the -- to know what factors matters. And 13 if I were then asked to say, well, what's the range over 14 which that factor matters, it's the precision over which that 15 range occurs. So for example, if I said a 25 percent 16 increase in performance, what does that lead to for the 17 Raiders? And I had a chart which showed that that was 3.3 18 percent. 19 The T statistics would be used to say, well, it could 20 be 3.5 or it could be 3.2. I can't really say because to a 21 statistician everything is a little uncertain. But what you 22 are saying is somewhere between 3.2 and 3.5, and that's what 23 you say. What you are also saying is that the number is not 24 zero.25 Q All right. Now, final topic.26 Mr. Harris asked you yesterday about Mr. Nye's 27 opinions, and you pointed out that -- he asked you how many 28 mistakes you found in his regression model, and you said ten,

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1 I believe was your testimony? 2 A Approximately. 3 Q And he indicated -- asked you how many factors or data 4 fact -- 5 A I believe he asked me how many observations or data 6 points Mr. Nye had used, that was out of how many data points 7 was that. 8 Q I'm sorry. What did you say? What was Mr. Nye's -- 9 A I think there were at a minimum ten errors out of, I 10 think, 56 data points.11 Q Is that statistically significant?12 A Well, the technical answer is it's significant to me, 13 but it's not statistically significant. That's the wrong 14 question.15 Q All right. It's significant to you in what context?16 A Well, I would say it becomes unreliable.17 Q How many data factors did you use in your regression 18 models?19 A Well, there were 1700 different games that I considered 20 across the time span. It was all 32 teams, 8 regular 21 seasons. So 8 times 30 is about 240, and then you've got 22 another 7 years of 240 times 7. I don't know. It's like 15, 23 1600. I think it was 1700 when you boil it all down.24 Q All right. Now, when you indicated that you couldn't 25 figure out what Mr. Nye -- how he had done his analysis, how 26 he got his conclusions. I mean, when you do peer review 27 journals, when you're asked to review and comment on 28 submissions in these peer review journals, is that one of the

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1 things you do, you check the factors and see how they have 2 done their analysis? 3 A Certainly you could, absolutely. And if you had a 4 question about the work, you could ask to see the data and 5 review it. 6 Q If you got an article with a regression model like this 7 one, with these errors and not being able to figure out how 8 he reached his conclusions, what would happen in the peer 9 review process?10 A I would recommend to the editor of the journal at issue 11 that the paper be rejected. In other words, it was not 12 scientifically verifiable or reproducible, so therefore, it 13 shouldn't be accepted for publication.14 MR. DREYER: That's all I have. Thank you. 15 MR. HARRIS: Just briefly, your Honor.16 RECROSS-EXAMINATION 17 BY GEORGE C. HARRIS, Counsel on behalf of the Defendant 18 Oakland-Alameda County Coliseum and Edwin DeSilva:19 Q First of all, Professor Dubin, you talked with 20 Mr. Dreyer about PSLs and relationship between PSLs and 21 selling out the stadium, correct?22 A Yes.23 Q I would like to look at Exhibit 429 for just a minute. 24 And you can refer to your Exhibit 449 if that refreshes your 25 recollection. And if we could look at the top of the chart, 26 the teams that have a record of sellouts over the past seven 27 seasons. Okay?28 Now, is it your understanding, Professor Dubin, that

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1 the Chicago Bears did not have a PSL program until 2000 -- in 2 fact, they don't have one until the coming season, is that 3 true, so they haven't had one during this period of time? 4 A That's true, according to 449, yes. 5 Q And the Denver Broncos, they don't have a PSL program, 6 true? 7 A That's correct. 8 Q And the Packers didn't have a PSL program until the 9 year 2001, true?10 A Yes.11 Q And that's a very limited program. I think maybe a 12 very small number of PSLs. Is that your understanding?13 A That I don't know.14 Q Okay. So you don't know that one way or the other?15 A I don't know one way or the other.16 Q And the Kansas City Chiefs, they don't have a PSL 17 program?18 A They do not according to my data.19 Q And the New England Patriots, they don't have a PSL 20 program?21 A Yes, I see that.22 Q Okay. The New York Giants, they don't have a PSL 23 program, true?24 A That's correct.25 Q And the Jets don't?26 A That's correct.27 Q And the Eagles didn't have a PSL program during this 28 period of time. They had one for 2003, correct?

page 5401




1 A Yes. 2 Q And the Steelers, according to your chart, also don't 3 have a PSL program -- I'm sorry -- the Steelers had one as of 4 1999; is that true? 5 A Yes. 6 Q And the 49ers don't have a PSL program? 7 A That's correct. 8 Q And the Rams did have a PSL program? 9 A The ones starting in 1995.10 Q But the Redskins do not, true?11 A Correct.12 Q And those are the top teams that you've got in the 13 solid red area, true?14 A Yes.15 Q Okay. I would like to talk now about this ticket 16 pricing issue. You said, looking at another document that as 17 of 1994 in Los Angeles, season ticket price for the Raiders 18 was $31.40, true?19 A Do you mind if I look at the document, again? 20 Q Sure. Go ahead. 21 A $31.40.22 MR. DREYER: Your Honor, it's not in evidence, but I 23 with be happy to move in 447 and at the same time move in 24 449.25 MR. HARRIS: I'm not moving them in. I think that they 26 are hearsay documents.27 MR. DREYER: If that's his position, how could 28 Dr. Dubin read the number?

page 5402




1 MR. HARRIS: Well, he already did in his prior 2 testimony, so I'm cross-examining him about it. 3 Q Okay. It was your testimony a minute ago that the 4 price raised in 1994 in Los Angeles to 1995 in Oakland by 5 about $20 per ticket, true? 6 A I can't recall whether I read the number, but I did the 7 arithmetic between the two numbers on the sheet, and it's 8 approximately $20. 9 Q Okay. And there weren't PSLs in Los Angeles?10 A That's correct.11 Q And that's an additional cost that has to be applied to 12 the majority of the seats in the stadium in Oakland in 1995, 13 true?14 A It's a cost that has to be applied initially when 15 someone buys their PSL, but it doesn't apply other than at 16 inception.17 Q Well, but if you pay for it -- if you pay $4,000 at the 18 beginning of the ten-year period, one could say it's all at 19 the beginning, but -- or one could apply it over the ten 20 years that you're buying your season tickets. It's still a 21 cost of buying a season ticket, true?22 A I think it's a cost of getting a license to buy 23 tickets, a right and obligation to buy tickets. I don't 24 think of it as disconnected from the purchase of the ticket 25 itself.26 Q Okay. But it's a cost to getting in the seat to watch 27 the game that didn't exist in Los Angeles?28 A It's a cost to getting in, yes.

page 5403




1 Q Okay. And the team was not selling out in Los Angeles, 2 as you saw? 3 MR. DREYER: Asked and answered, your Honor. 4 THE COURT: Sustained. 5 Q (By Mr. Harris) Okay. Now, Mr. Dreyer asked you 6 questions about the -- whether there's price sensitivity or 7 insensitivity in an excess demand situation, do you recall 8 that? 9 A Yes.10 Q Now, there's a situation in which even if there's 11 excess demand, the seller could change that to an excess 12 supply situation by setting the price too high, true?13 A That is true. There is a price at which no one will 14 tolerate anything.15 Q Okay. And you haven't looked in this situation for the 16 Oakland Raiders in 1995 at whether the seller priced the 17 product too high? 18 A Well, at the prices that were set, the representation 19 was that there was a sellout.20 Q Well, that wasn't my question.21 You haven't looked in this situation whether, in fact, 22 the price was set too high?23 A I don't know for sure that the price was set too high. 24 I understand that there was marketing and discussion about 25 the appropriate level to set the price.26 Q Okay. Well, in fact, if there's a higher price, 27 including the price of the PSL, there's the possibility that 28 that by itself could be, in your words, disastrous to an

page 5404




1 excess demand situation, true? 2 MR. DREYER: Asked and answered, your Honor. 3 THE COURT: Overruled. 4 THE WITNESS: I think I recall testifying and giving 5 the example that if you asked a fan to pay $100,000 for a PSL 6 or to pay $50,000 for a set of season tickets, that I think 7 most fans would say, you know, I got better things to do than 8 watch even football no matter what my demand is. 9 Q (By Mr. Harris) There is -- there's some point at 10 which setting the price too high could be disastrous, in your 11 words?12 A Yes, that's definitely a result.13 Q And you haven't attempted to determine what that level 14 was in this situation?15 A No. What I have written about in my report, though, is 16 that A teams, the excess demand teams have continued from 17 year to year to be able to raise their prices, and other 18 people who have monitored this situation have said, you know, 19 so far, at least while the average fan may be moved further 20 and further away from the action, there's not been a -- I 21 can't remember the words I use, but there's been no deterrent 22 effect. Fans have continued to show interest, so there is no 23 indication, no evidence that prices have been set too high.24 Q Okay. But Professor Dubin, you don't know whether the 25 failure to sell out in 1996 following a sellout in 1995 was 26 due to ticket prices being too high or to the expansion of 27 capacity or what was the actual cause of that failure to sell 28 out, do you?

page 5405




1 A Well, I don't think it's due to the expansion of the 2 capacity because I have done an empirical study that showed 3 that stadium expansions do not change the probability that 4 excess demand will move across time. And I have also told 5 you that at the price that was set, the price was not out of 6 whack with respect to the rest of the league. It may have 7 been at the top, but it certainly wasn't completely out of 8 the set, and there's no reason, given the representations of 9 a sellout, that -- there's no evidence that that price was 10 set too high.11 Q Okay. I would like to play from Professor Dubin's 12 deposition, pages 213, beginning on line 23, through 214, 13 Line 8.14 MR. DREYER: Line 14?15 MR. HARRIS: 213, 20, through 214, line 8. 16 MR. DREYER: 213, 20. One moment, your Honor. 17 No objection.18 THE COURT: Roll it.19 (Whereupon videotaped deposition was played in open 20 court and transcribed as follows.)21 Q Okay. Have you looked at whether the seller in this 22 situation priced the product too high?23 A I haven't looked at that.24 Q Okay. So we don't know really whether, following that 25 sellout year in 1995, the nonsellout in 1996 was due to too 26 high priced tickets, too high priced PSLs, negative 27 publicity -- we definitely don't know anything about that -- 28 or this new overcapacity problem that Professor Becker

page 5406




1 identified as a problem? 2 A I think I've stated that I did not do a study of why. 3 I've given some reasons about why, why ticket sales fell off, 4 but I have not done a study of that. I couldn't tell you if 5 it was the price or if it was the capacity or for whatever 6 other reasons. 7 (Whereupon designated portion videotaped deposition 8 concluded.) 9 MR. HARRIS: Finally, your Honor, I would just like to 10 play one other portion of the deposition that's just under 11 the rule of completeness with the portion that Mr. Dreyer 12 played about the search for newspaper articles, and that 13 would be at pages 90, line 25, through 91, line 20.14 MR. DREYER: Page 90, line what?15 MR. HARRIS: 25, through 91, line 20 -- actually, all 16 the way through 92, 13, to be complete about the request.17 MR. DREYER: Well, your Honor, I don't know that there 18 was any questioning on this, and this has -- my recollection 19 is something I read, but he's a nonparty.20 THE COURT: It's appropriate. Overruled. Go ahead.21 MR. HARRIS: Jeff, did you get those numbers?22 (Whereupon videotaped deposition was played in open 23 court and transcribed as follows.)24 Q What was -- what was the nature of the search that had 25 been done?26 A Okay. I was interested in a -- of collecting an 27 article -- collecting a number of articles, the number of 28 articles published that both mentioned the Raiders and PSLs

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1 simultaneously. 2 Q Okay. And was that for specific publications or all 3 periodicals in general? Do you recall what that search was 4 and for what period of time? 5 A To the best of my recollection, it was for all 6 newspaper articles, or whatever I think the -- the category 7 would be in Lexis-Nexis that hits newspapers. I don't think 8 it was magazines, for instance. And it would have been -- 9 the period of time would have been from 1995 to present.10 Q And why were you interested in that?11 A I had in mind that there might be something one could 12 do with a publicity effect, that PSLs mentioned in 13 conjunction with the Raiders might have had a negative effect 14 on tickets sold, for instance, if it was a pejorative 15 article.16 Q Did you reach any conclusions about that hypothesis 17 after your review of the articles?18 A Well, it was, based on my view -- well, yes.19 Q What was your conclusion?20 A It was based on my review of the articles that I -- I 21 kind of felt that the -- that the tool we were using, at 22 least initially, was much too crude because the search came 23 back with articles that had the word "PSL" in them and also 24 had the article -- had the topic or the word "Raiders" in 25 them, but there may have been no nexus between the two.26 So I asked Elizabeth to try again and cull through the 27 articles and find the ones where the intersection had more of 28 a nexus, you know, where it wasn't just a mention of the word

page 5408




1 "Raiders" in some other completely different context. But 2 based on the revised set of articles, I actually found, as I 3 recall, not much systematic or significant effect on either 4 tickets sold, pricing or attendance. 5 (Whereupon designated portion of videotaped deposition 6 concluded.) 7 MR. HARRIS: That's all I have, your Honor. 8 MR. FIELDS: No questions, your Honor. 9 MR. DREYER: Two quick topics.10 FURTHER REDIRECT EXAMINATION11 ROGER A. DREYER, Counsel on behalf of the Plaintiff:12 Q Dr. Dubin, looking at Exhibit 449, the one -- your work 13 product where you go through the PSL information.14 Let's keep going. Carolina Panthers, are they a PSL 15 team?16 A Yes.17 Q When?18 A 1995.19 Q Jacksonville Jaguars, are they a PSL team? 20 And let's put 429 on the board, please. 21 A The Jaguars are not.22 Q Okay. Cleveland Browns?23 A The Cleveland Browns are a PSL team.24 Q When?25 A 1999.26 Q And the Baltimore Ravens?27 A The Ravens have a PSL program which began in 1998.28 Q Now, the PSL, the cost we keep hearing about, the

page 5409




1 person who's cutting the check or debiting their credit card 2 or paying cash, however they're going to do it, the person 3 that's paying for the PSL, is that -- is that Tom taxpayer or 4 is that the football fan? 5 A Well, it's not -- 6 MR. HARRIS: Objection. 7 Q (By Mr. Dreyer) Let me restate the question. 8 The person who's paying for the PSL is the person who 9 wants the season ticket, correct?10 A Oh, sure. This is not -- no one's forcing anybody to 11 buy anything. It's like if you want a Mercedes and you can 12 afford one and that's what you want, you go out and buy one. 13 They're very expensive, but no one has got a gun to your head 14 to pay that price.15 Q So if someone wants to go to a game and they recognize 16 the access is through a PSL, through all of these different 17 teams, that's the way you go?18 A It's the cost to play, yes.19 MR. DREYER: That's all I have. Thank you.20 MR. HARRIS: Just one other question. If we can put 21 Exhibit 429 back up.22 FURTHER RECROSS-EXAMINATION 23 BY GEORGE C. HARRIS, Counsel on behalf of the Oakland-Alameda 24 County Coliseum and Edwin DeSilva:25 Q And look down at Group C, please.26 Professor Dubin, the Cincinnati Bengals, they have a 27 PSL program, too, correct?28 A I lost the chart, but I believe they do.

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1 Q 449, do you want to confirm that? 2 A Yes, they do. 3 MR. HARRIS: That's all, your Honor. 4 FURTHER REDIRECT EXAMINATION 5 BY ROGER A. DREYER, Counsel on behalf of the Plaintiff: 6 Q When? 7 A It began in the year 2000. 8 MR. DREYER: Thank you. 9 THE COURT: Is that it?10 MR. DREYER: Yes, sir.11 THE COURT: All done?12 MR. DREYER: Yes, sir.13 THE COURT: All right. Then you're excused.14 THE WITNESS: Thank you.15 THE COURT: I'm going to let you folks be the judges, 16 but it has to be by a majority vote.17 MR. DREYER: Your Honor, I hate to interrupt you, but 18 before you give them a vote, so that I'm not the bad guy -- 19 THE COURT: Yeah. 20 MR. DREYER: We'd like to at least start the 21 videotape, and then we'll break whenever you want, but we 22 would like to get the tape started.23 MR. BROSNAHAN: I'll do whatever your Honor and the 24 jury wish, and I speak for all of the defense parties at the 25 table.26 MR. DREYER: Obviously, I will always do whatever the 27 judge and the jury wants, but that was just a suggestion. 28 MR. BROSNAHAN: We live by the vote.

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1 THE COURT: Everyone seems to presume knowledge of what 2 I was going to ask the jury. 3 MR. DREYER: I'm sorry, your Honor. I don't mean to be 4 presuming. 5 THE COURT: Do you have some compelling reason why you 6 want to get started on this video? 7 MR. DREYER: Yes, and I hate to say this out in public 8 with the jury here because I don't want them mad at me. The 9 reality is we have a witness coming from Baltimore for 10 Tuesday. I only have three days next week, and I'm doing the 11 best I can to move as quickly as I can. Even if I play 12 45 minutes of this hour-and-50-minute tape, at least I have 13 it done, and the jury doesn't have to listen to the whole 14 tape. Then we can finish the tape Monday morning, and we can 15 put our witness on.16 MR. ROMAN: Your Honor, our only concern, since it's 17 one of our witnesses, is that -- as I understand, it's a 18 two-hour tape that we play and get part way into the story, 19 and it sounds like it's going to be days -- 20 MR. DREYER: No, no, no. We finish the tape Tuesday 21 morning. I'm just saying we get it done. I would -- I don't 22 want to play a tape -- I would prefer -- obviously, I'll 23 defer to the Court, but I don't want to play -- start Tuesday 24 morning on a three-day week, because we're not in session on 25 Friday, with a two-hour tape with a witness that I have to 26 fly out from --27 THE COURT: I do have to pick a Grand Jury on Friday. 28 I've been thinking, though -- I've done that enough times

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1 that I can probably do that in an hour-and-a half. I bet we 2 could -- if we all wanted to gear up by 10:30 or 11:00 on 3 Friday and go the rest of the day. That's kind of an option, 4 unless you all plan to do other things on Friday already. 5 You already have, huh? 6 JUROR GANNON: My son is in a play that morning. I 7 could be here in the afternoon, but the morning would be 8 really tough. 9 THE COURT: Okay. 10 MR. DREYER: Now you're really going to get me in 11 trouble. I'm trying to keep the time as --12 THE COURT: We're still going to give it to you folks. 13 If you want to take a break and come back and hear 14 40 minutes' worth of videotape testimony, or do you just want 15 to call it a week now? 16 Raise your hand if you want to call it a week right 17 now.18 JUROR SWART: You're kidding.19 THE COURT: Raise your hand if you just want to go home 20 and come back Tuesday morning. Any of you? 21 Go take a ten-minute break, then we'll come back with 22 the testimony, no longer than a half hour. 23 (Recess.)24 THE BAILIFF: Please come to order. Department 39 is 25 again in session. 26 THE COURT: All right. This is the videotaped 27 deposition of -- 28 MR. DREYER: Michael F. Miller, and we are calling him

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1 under Evidence Code Section 776. He is an employee -- or was 2 at the time an employee of Arthur Andersen, and I believe the 3 Court wanted to make some kind of comment relative to 4 Mr. Miller for the jury before we started the tape. 5 THE COURT: Yes. All of us had reached an agreement to 6 play portions of Mr. Miller's deposition. The portions we've 7 agreed to play will deal with events that end on or before 8 July the 24th of 1995. He will also possibly appear in 9 person later on in this trial to testify to events that are 10 not being discussed here on this deposition, is this will 11 deal primarily with things that occurred on and before 12 July 24, 1995.13 MR. DREYER: Your Honor, when exhibits are addressed, I 14 will identify the trial number exhibit. I'll ask Jeff to 15 stop while I identify just for the record, and additionally, 16 would the Court like me to keep track of time in terms of 17 when to stop or would you -- what would you like me to do? 18 It's 3:15. You tell me when and I'll top.19 THE COURT: Let's stop at a quarter to four.20 MR. DREYER: Yes, sir.21 THE COURT: Do you have a written transcript?22 MR. DREYER: We do, your Honor.23 THE COURT: Are you going to report this?24 REPORTER: Yes.25 (Whereupon videotaped deposition was played in open 26 court and transcribed as follows:)27 Q Would you state your full name for the record, please?28 A Michael Frederick Miller.

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1 Q Mr. Miller, where are you currently employed? 2 A KMV Corporation. 3 Q What is your employment address? 4 A 1620 Montgomery Street, Suite 140 in San Francisco. 5 Q And how long have you worked there? 6 A A little more than five years. 7 Q Can you tell me, Mr. Miller -- let's start with your 8 educational background. What year did you graduate from high 9 school?10 A 1977.11 Q And did you ever attend college?12 A Yes, I did.13 Q Why don't you tell me what colleges you attended and 14 any degrees you may have received? 15 A I attended UC Berkley and earned a Bachelor of Science 16 in Business Administration. I graduated in 1981.17 Q And beginning with your graduation from Berkley, can 18 you tell me what your first full-time job was after you 19 graduated?20 A I can't remember if I had a full-time job with the 21 university right after graduation, but my first, you know, 22 career sort of job would have been with Arthur Andersen 23 starting in July of 1981.24 Q When did you leave the employment of Arthur Andersen?25 A Would have been at the end of 1997 -- excuse me -- end 26 of 1996, early 1997. I'm not -- I don't remember exactly if 27 it was, you know, the end of the calendar year '96 or if it 28 went into a couple days of '97 with the holidays.

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1 Q When you first started working with Arthur Andersen, 2 which office did you work in? 3 A I started in the San Francisco office. 4 Q And at some point, did that change? 5 A Yes. 6 Q And when was that? 7 A In 1991 I transferred to the Madrid office. 8 Q How long were you there? 9 A I was there about a year and a half, and then I 10 transferred to the Prague office.11 Q To where?12 A Prague in, at the time, Czechoslovakia.13 Q And how long were you there?14 A I was there -- it's a little vague, but I was there and 15 in Brodislavakia until October, November, of 1994, and I say 16 it's vague because I had responsibilities in the two offices 17 when Czechoslovakia split, and I split my time between the 18 two, so I was in both places.19 Q All right. That's fair enough. Were you in both 20 places for a total of approximately two years?21 A It would be July '92 until September or October -- 22 October, November of 1994.23 Q All right. Thank you. Where did you work after that?24 A In Oakland.25 Q Did you arrive at the Oakland office at the end of '94?26 A Yes. In the fall of '94.27 Q And did you work there until the time that you left the 28 company?

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1 A Yes. 2 Q What was the address of the Oakland office? Do you 3 remember? 4 A 500 12th Street in Oakland. 5 Q When you left Arthur Andersen, is that when you began 6 working for KMV? 7 A Yes. 8 Q Can you tell me just generally what do you do for KMV? 9 A I am the director of operations for our client services 10 group.11 Q And just generally tell me what you do in that capacity?12 A Client services is the sales, marketing and support 13 function for our company, and I coordinate the efforts 14 amongst our offices and our client service teams.15 Q And if you were to describe to a lay person what KMV 16 does, what does the company do?17 A We develop and sell credit risk management and debt 18 portfolio management software and technologies.19 Q And have you been doing generally the same thing for 20 the entire time that you've been there?21 A No.22 Q When you began working for KMV, what did you do first?23 A Initially I was the director of finance.24 Q And what generally did you do in that capacity?25 A A lot of things. Actually, we were a very small 26 company, so it was finance, administrative matters, office 27 management. Anything like that fell under my purview.28 Q And when approximately did your job responsibilities

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1 change? 2 A That was the beginning of 2001. 3 Q And how generally did your job responsibilities change 4 at that time? 5 A It was a completely different department. I went from 6 finance and primarily focused internally to working with the 7 sales, marketing and support functions which is mostly 8 externally focused at our clients. 9 Q Going back now to the work that you did for 10 Arthur Andersen, what was the first position -- excuse me, 11 what was the first position, if you recall, that you had with 12 Arthur Andersen when you joined that firm?13 A I was a staff accountant.14 Q Approximately how many years or months did you spend 15 working as a staff accountant?16 A I would guess -- I would say it was approximately two 17 years.18 Q And just generally what did you do as a staff 19 accountant?20 A I primarily did audit work under the direction of 21 seniors, managers and partners.22 Q What was the next position that you held?23 A Next position was experienced staff.24 Q And what did you do in that position?25 A Again, it was working for more experienced personnel 26 managers and partners working at their direction?27 Q Approximately how long were you in that position?28 A One to two years.

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1 Q And what was your next title? 2 A The next title was senior. 3 Q And how long were you a senior? 4 A That I don't remember exactly. That was the longest 5 period, I would say, up to this point. Several years. 6 Q And what generally did you do while you were working as 7 a senior? 8 A Mostly audit work, and it was -- I would be running an 9 audit engagement with staff and experienced staff reporting 10 to me, and then I would be reporting to managers and partners.11 Q What was the next position that you obtained at 12 Arthur Andersen after you were a senior?13 A The next level was manager, audit manager.14 Q Do you remember approximately what year you became 15 audit manager?16 A No, I don't recall exactly.17 Q What generally were your job responsibilities as audit 18 manager?19 A Again, mostly doing audit work. There was more 20 managerial responsibilities at this level. And also actively 21 working with clients in new work, bringing in new work, doing 22 administrative tasks, recruiting more heavily, things like 23 that. 24 Q What was your next job title?25 A Next title was senior manager.26 Q Do you remember how long you served as an audit manager?27 A I don't remember the year that I made audit manager. I 28 think I was promoted to senior manager in 1991 or '92.

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1 Q All right. Fair enough. When you were promoted to 2 senior manager, what generally were your job 3 responsibilities? 4 A Very similar to the manager responsibilities. 5 Q And what was your next position? 6 A That was my final position. 7 Q So when you did work on the engagement involving the 8 Raiders, your capacity or your job title was senior manager? 9 A Right.10 Q Sure. Was there any kind of a team established of 11 people that were supposed to help you with this engagement or 12 were you on your own?13 A Yes, there was a team.14 Q And who do you recall being on the team?15 A Marvin Friedman, Ted Reich, Dave Peterson, Don Jacobs, 16 Brian Evans, Eric Woodward, Stefan Fromm and -- gosh, I know 17 I'm forgetting someone.18 Q What about Brubaker?19 A Scott Brubaker. Thank you. 20 Q Before your work on this engagement, had you ever done 21 any work for the Oakland-Alameda County Coliseum?22 A No, I hadn't.23 Q Had you ever done any work before this engagement for 24 the City of Oakland?25 A No, I don't believe so.26 Q Or the County of Alameda?27 A No.28 Q My question simply is, other than the engagement

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1 involving the Raiders, did you ever do any work for any 2 sports team? 3 A Okay. Arthur Andersen -- the San Francisco office of 4 Arthur Andersen had the San Francisco Giants as a client, and 5 I worked on that audit engagement for several years. 6 Q Can you tell me just generally what you did when you 7 worked for the San Francisco Giants? 8 A During the course of my involvement on that engagement, 9 that spanned much of my career in the San Francisco office. 10 So I started off as a staff accountant, and over the years 11 ultimately was the audit manager on that engagement. I was 12 not on the job every year, but for most of the years. 13 Q In July of 1995, were you at all interested in what was 14 happening with the Raiders?15 A I was interested in sort of the whole, "Are they 16 returning?" That was of interest because when they left and 17 over the years there had been speculation of them returning, 18 but I wasn't -- I wasn't a Raiders' fan. It didn't really 19 matter to me personally one way or the other.20 Q When did you first learn that you would be doing some 21 work involving the Oakland Raiders?22 A I recall being contacted in early July of 1995 to 23 attend a meeting, kind of an "all hands" meeting in some 24 sense, of parties who would be working on ticket sales for 25 the Coliseum Commission Marketing Association.26 Q Was this an internal Arthur Andersen meeting or were 27 there people there outside of the company, if you can recall?28 A It was an external meeting, several parties.

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1 Q Did you attend the meeting? 2 A Yes, I did. 3 Q Who was there from Arthur Andersen, if you can recall? 4 A It was myself, Marvin Friedman and Ted Reich. There 5 may have been one or two others, but I don't recall. 6 Q Who else was present as far as you can remember? 7 A I remember Marc Ganis, some representatives of the 8 Coliseum Commission, Dennis Cuneo. There were 9 representatives from the Bank of America there, 10 representatives from BASS.11 Q I want to show you what's been marked as Exhibit 2217.12 (Videotaped deposition was paused.)13 MR. DREYER: Your Honor, this is trial Exhibit 273. 14 273.15 THE COURT: Which is not admitted.16 MR. DREYER: Not yet. 17 (Videotaped deposition resumed.)18 Q Have you ever seen this document before?19 A No.20 Q Appears to be notes from a July 1, 1995 meeting at the 21 Hilton Hotel?22 A Yes.23 Q Did you attend that meeting? 24 A Yes.25 Q And who was at that meeting?26 A Myself, Ted Reich, Marvin Friedman, Dennis Cuneo, 27 Marc Ganis, representatives from the Bank of America. BASS 28 may have been there. I don't remember exactly actually.

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1 That's everyone I can think of. 2 Q There were no Raider representatives at that meeting. 3 A I don't remember any. 4 Q Okay. And so would the first two pages appear to be 5 notes from that meeting? 6 A Yes. 7 Q Now, at this July 1, 1995 meeting, was Bob Quintella 8 at that Hilton meeting? 9 A I don't remember if he was or not.10 Q Was Charlie Adams at it?11 A I can't remember if he was or not.12 Q Was Ernie Lampkin?13 A I don't believe so, no.14 Q Was Ed DeSilva?15 A I don't recall.16 Q Was Steve Adrian?17 A I don't recall if he was or not.18 Q What was the purpose of the July 1, 1995 meeting?19 A That was a kickoff for the project that brought all of 20 the parties together and explained what the process was going 21 to be, the idea of having the lottery and how they were going 22 to go about and do that. 23 Q Now, at the very top of these notes -- and do you know 24 whose notes these are?25 A No, I don't.26 Q At the very top of the notes, it says July 19 press 27 release, number of seats requests.28 Do you see that?

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1 A (Witness nodding head.) Uh-huh. 2 Q Do you recall a discussion at that meeting that there 3 was going to be a press release on July 19th about the number 4 of seats requested? 5 A Yes. This refreshes my memory, and I think, yes. 6 Q Okay. Tell me what you recall about that? 7 A That prior to the lottery there would be this general 8 press release about the number of PSLs being sought. 9 Q How long did the July 1, 1995 meeting last?10 A Somewhere between one and three hours, I would say. 11 One, two hours, maybe. 12 Q Do you remember what Marvin Friedman said at that 13 meeting?14 A No.15 Q Or anything he said?16 A No.17 Q Do you remember anything you said at that meeting?18 A I remember asking some questions about procedural 19 things and kind of questions about would applications been 20 accepted if there was multiple applications, that kind of 21 thing.22 Q What type of question was that?23 A Well, in a -- if, for example, you input -- you put in 24 10 applications to further your chances of getting seats, 25 should we count them all or just take one and exclude the 26 other nine? And so it was a along those kind of lines, just 27 getting general parameters about how did they want things to 28 go.

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1 Q And what was that answer to that question about whether 2 you should allow multiple applications or not? 3 A It was to allow multiple applications. 4 Q And who authorized that? 5 A I don't recall in the context of the meeting. It was 6 someone -- 7 Q Someone from the OACC side? 8 A Yeah. 9 Q In other words, you weren't getting that authorization 10 from Marvin Friedman or Ted Reich?11 A No.12 Q You were getting that from the Oakland-Alameda County 13 Coliseum side?14 A Correct, true.15 Q You can't say who, but you're certain that it was 16 somebody representing the Coliseum?17 A Representing the Coliseum. I'm sorry. Representing 18 the Coliseum. Ganis. That group were all together running 19 the -- as opposed to Bank of America, BASS, Arthur Andersen, 20 kind of divided up that way. 21 Q Oh, so you weren't getting that instruction from BASS, 22 Arthur Andersen or Bank of America?23 A That's correct.24 Q You were getting it -- and you understood that 25 Marc Ganis was working with the Coliseum in some capacity; is 26 that correct?27 A Yes.28 Q And how did you get that understanding?

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1 A From the introductions at that meeting and who the 2 parties were and what their roles were. 3 Q Okay. No one told you that Marc Ganis was working for 4 the Raiders? 5 A No. 6 Q And you didn't have that understanding, did you? 7 A No. 8 Q Why did you -- had you ever been in a lottery situation 9 before? Had you ever run a lottery or been involved in 10 something like this before?11 A Not a lottery, but allocation of tickets, yes.12 Q And what kind of situation?13 A In 1984 for an engagement with the San Francisco Giants 14 I worked on a project to allocate the All Star game tickets 15 at Candlestick.16 Q And in 8488 -- 17 (Videotaped deposition was paused.)18 MR. DREYER: Why don't we keep playing. I'm --19 Okay. This is Exhibit 310, trial Exhibit 310 which is 20 the agreement which is in evidence.21 (Videotaped deposition resumed.)22 Q Under "Services" it says, "Based on our previous 23 discussions, it is our understanding that OACC wishes us to 24 perform the following procedures in connection with the 25 above."26 And did you obtain this understanding of the services 27 OACC wished Arthur Andersen to perform from the meeting that 28 you had, I believe, it was on July 1, 1995.

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1 A That was one of the sources, yes. 2 Q Okay. And what other source was there? 3 A Subsequent conversations with Mr. Cuneo and Mr. Ganis. 4 Q Any other sources? 5 A Not that I recall. 6 Q And who told you that you could rely on Mr. Ganis to 7 give you those instructions? 8 A I don't recall exactly who told us that, but we 9 generally understood that he was in charge of the project 10 for -- from our client's side and to take direction from him.11 Q And your client being OACC?12 A Yes.13 Q No one from the Raiders told you to take Mr. Ganis' 14 direction on this; is that correct?15 A That's correct.16 Q Well, first of all, did you set up the system for how 17 those applications would be processed?18 A Yeah. I was one of the people who did that.19 Q Was that part of your job as the manager for this 20 project?21 A Yes.22 Q Did Arthur Andersen set up the process for processing 23 the applications?24 A Arthur Andersen was one of the parties that set it up. 25 It was actually mutually decided by everybody who had been 26 engaged plus the OFMA or the OACC.27 Q Your client was the OACC; is that correct?28 A That's correct.

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1 Q And when you say the process was jointly set up between 2 the parties, which parties are you talking about? 3 A The OACC which I would include Marc Ganis in that since 4 he was working for them and he was kind of our chief person, 5 Bank of America, Arthur Andersen, BASS. 6 Q Okay. And what was your involvement in setting up that 7 process? 8 A In what sense? 9 Q In other words, what did you do in figuring out how the 10 applications were going to be processed or setting up the 11 procedure to process the applications?12 A I participated in meetings with those other parties and 13 with other Arthur Andersen personnel and had input into, you 14 know, what I thought might be good or bad along those lines, 15 so it was feed back and input into the process, design, and 16 then once everybody agreed on the process, then it was 17 helping implement it.18 Q Now, for Arthur Andersen, you were the manager on this 19 project; is that correct?20 A Yes.21 Q Now, when did Mr. Ganis tell you not to process in the 22 lottery those applications that were not supported either by 23 sufficient check or sufficient credit card information?24 A Sometime between the beginning of the engagement and 25 the lottery. I don't remember the exact date, but it was in 26 that time frame.27 Q If you go down to the -- we've got the line where it 28 says, "7-19 press release and number of seats requested," and

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1 then the next sort of heading looks like, "payment issues." 2 And if you look, there's like four lines, five lines under 3 that, and then there's a line not in count. 4 Do you see that? 5 A Yes. 6 (Videotaped deposition was paused.) 7 MR. DREYER: For the record, your Honor, they're back 8 referring to Exhibit 272. 9 (Videotaped deposition resumed.)10 Q Does that refresh your recollection that at the 11 July 1, 1995 meeting you were told that if the applications 12 were not supported by sufficient credit card or a check that 13 they would not be included in the lottery?14 A That conversation happened at this meeting and 15 subsequently as well.16 Q Okay. So in other words, that was repeated to you 17 later?18 A Yes.19 Q By Mr. Ganis?20 A Yes.21 Q What did Mr. Ganis say to you about that?22 A I don't remember the exact words, but we discussed the 23 situation of having the NSF -- the not sufficient checks and 24 the possibility -- the credit card problems, the possibility 25 of that, and he said to leave them out of the lottery.26 Q And did you consider that pretty significant issue 27 about excluding some applications from the lottery?28 A Um, it was important enough to ask about in that we

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1 needed to get direction from the people we were doing this 2 project for to find out how they wanted them to be treated, 3 should they go in or stay out. 4 Q And other than Mr. Ganis, did you discuss that with 5 anybody else prior to the lottery being run? 6 A We discussed it within Andersen and then raised it with 7 Ganis. 8 Q Did you raise it with Mr. Cuneo? 9 A I don't recall any conversations with anyone else about 10 it.11 Q Well, during the time that you worked on this 12 engagement, did you from time to time talk to people from 13 Bank of America about your work?14 MR. HAUSMAN: Objection, leading.15 THE WITNESS: We had contact with people from the 16 Bank of America because we were working with them on the 17 engagement, yes.18 Q (By Mr. Gonzalez) Who were the people that you 19 personally had contact with?20 A I remember Les Young from their processing center, and 21 there was an individual who was at -- kind of in the -- she 22 was at the initial meeting and she was a contact, and I don't 23 recall her name. I spoke with her a few times.24 Q Christine Marino?25 A Yeah.26 Q Other than Les Young and Christine Marino, did you ever 27 talk to anyone else from Bank of America that you can recall 28 about this engagement?

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1 A I can't remember any specific names, but in the course 2 of being at the Bank of America and talking with people, 3 there were several people I would have spoken with, yes. 4 Q Did you at some point visit the Bank of America offices 5 as part of this engagement? 6 A Yes. 7 Q Do you recall the names of anyone -- any person that 8 you may have spoken to from BASS about this engagement? 9 A I don't recall the names, but yes, I spoke with people 10 from BASS.11 Q What did you understand when you first heard about this 12 engagement that your role was going to be? 13 MR. ROMAN: "Your" meaning Arthur Andersen's or his 14 personally? 15 Q (By Mr. Gonzalez) You personally, what were you going 16 to do as part of this engagement?17 A I was going to be the project manager for the lottery 18 process.19 (Videotaped deposition was stopped.)20 MR. DREYER: Your Honor, it's a quarter till.21 THE COURT: Well, thank you.22 MR. DREYER: I appreciate your indulgence. The jury's 23 indulgence.24 THE COURT: Thank you, ladies and gentlemen. We all 25 wish you a very happy Memorial Day weekend. Stay healthy. 26 We'll see you 9 o'clock Tuesday morning. 9 o'clock Tuesday. 27 Follow all of the rules.28 (Evening recess.)

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