Preview
1 BAY AREA LEGAL AID
Novella Y. Coleman SBN 281632
2 Rachel Haverkorn RLSN 803511 ELECTRONICALLY
1800 Market Street, 3rd Floor
San Francisco, CA 94102 F I L E D
3 Superior Court of California,
Telephone: 415 982 1300 County of San Francisco
Facsimile: 415 982 4243
4 ncoleman@baylegal.org 06/08/2021
Clerk of the Court
rhaverkorn@baylegal.org BY: SANDRA SCHIRO
5 Deputy Clerk
6 LAWYERS’ COMMITTEE FOR CIVIL MANATT, PHELPS & PHILLIPS, LLP
RIGHTS OF THE SAN FRANCISCO Barry W. Lee SBN 088685
7 BAY AREA Christian E. Baker SBN 247006
Stephanie A. Roeser SBN 306343
Elisa Della-Piana SBN 226462 One Embarcadero Center, 30th Floor
8 131 Steuart Street, Suite 400 San Francisco, CA 94111
San Francisco, CA 94105 Telephone: (415) 291-7400
9
Telephone: (415) 543-9444 Facsimile: (415) 291-7474
10 Facsimile: (415) 543-0296 BWLee@manatt.com
edellapiana@lccrsf.org CBaker@manatt.com
11 SRoeser@manatt.com
Attorneys For Petitioner
12 COALITION ON HOMELESSNESS
13 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FRANCISCO
14 UNLIMITED CIVIL JURISDICTION
15 COALITION ON HOMELESSNESS, Case No. CPF-18-516456
16 a California non-profit corporation,
DECLARATION OF PETER HESS, PH.D.
IN SUPPORT OF PETITIONER
17 Petitioner, COALITION ON HOMELESSNESS’S
MOTION FOR WRIT OF MANDATE,
18 INJUNCTION, AND DECLARATORY
v.
RELIEF
19
CITY AND COUNTY OF SAN
FRANCISCO; the SAN FRANCISCO [Filed concurrently with:
20 (1) Notice of Motion and Motion;
MUNICIPAL TRANSPORTATION (2) Memorandum of Points and Authorities;
21 AGENCY; the SAN FRANCISCO (3) Declarations of Christopher Arvin,
POLICE DEPARTMENT; TEGSCO Kimberly Brown, Jennifer Friedenbach, Margot
22 LLC dba SAN FRANCISCO AUTO Kushel, Victoria Larson, Stephanie A. Roeser,
RETURN, and MiQueesha Willis;
23 (4) Request for Judicial Notice; and
Respondents. (5) [Proposed] Order.]
24
Hearing
25 Date: July 22, 2021
Time: 9:30 a.m.
26 Dept: 302
27 Complaint filed: December 19, 2018
28
DECLARATION OF PETER HESS, PH.D.
1 DECLARATION OF PETER HESS, PH.D.
2 I, Peter Hess, Ph. D., hereby declare and state, as follows:
3 I. INTRODUCTION
4 A. Personal Background and Experience
5 1. I am a Vice President at Analysis Group, Inc. (“Analysis Group”), an
6 economic, financial, and strategy consulting firm with 14 offices in the United States and
7 abroad. I have a B.A. in economics and public policy from Duke University, and an M.S.
8 and Ph.D. in economics from the University of California at Berkeley. I have published and
9 taught in the field of economics. Prior to joining Analysis Group, I held a postdoctoral
10 research and teaching position at the University of California at Berkeley.
11 2. As a professional economist, I have specific expertise in microeconomics,
12 which is the field of economics that focuses on consumer and firm decision making and
13 behavior. I have extensive experience in the application of economic theory, analytical
14 methods, and data analysis in market and policy contexts. While at Analysis Group, I have
15 worked on many matters involving the compilation and analysis of large datasets to answer
16 questions related to assessing the economic impacts of firms’, individuals’, and
17 governments’ decisions and actions. During my time as a researcher at the University of
18 California at Berkeley, I worked with the California Air Resources Board and the California
19 Department of Finance modeling the impacts of proposed regulations and legislation. A
20 copy of my curriculum vitae is included as Appendix A.
21 B. Relevant Case Background
22 3. Petitioner in this matter is the Coalition on Homelessness, a California non-
23 profit organization that advocates for the rights of homeless and vehicularly housed
24 individuals in San Francisco. Respondents in this matter include the City and County of
25 San Francisco (“City”), the San Francisco Municipal Transportation Agency (“SFMTA”),
26 and the San Francisco Police Department (“SFPD”). Tegsco, LLC dba San Francisco
27 AutoReturn (“AutoReturn”), “the exclusive provider of all tow-related services for the
28
1
DECLARATION OF PETER HESS, PH.D.
1 City,” is also a Defendant, Respondent, and real party in interest in this case. 1 The City,
2 SFMTA, SFPD, and AutoReturn are collectively referred to as “Respondents”.
3 4. The Coalition on Homelessness challenges the City’s policies surrounding
4 towing, impounding, and selling vehicles without warrant, solely because the owner was
5 unable to pay the outstanding five parking tickets. Petitioner seeks a taxpayer injunction
6 and writ of mandate requiring Respondents to amend their towing policy to conform to the
7 mandates of the California constitution and cease towing vehicles where the reason is
8 nonpayment or parking tickets and where Respondents do not have warrant for seizure, do
9 not provide adequate pre-tow and post-tow notice, and/or do not provide vehicle owner with
10 full and fair opportunity to be heard prior to and following the tow. 2
11 C. Assignment
12 5. I have been asked by counsel at the Lawyers Committee for Civil Rights of
13 the San Francisco Bay Area (“LCCRSF”) to analyze data on the towing and disposition of
14 towed cars by Respondents in order to inform the parties and the court of the scope and
15 incidence of the conduct at issue in this case.
16 6. I have directed employees of Analysis Group to assist me in my current
17 assignment. Neither I nor the Analysis Group employees assisting me are being paid for
18 our work on this matter.
19 II. THE DATA
20 7. I and Analysis Group staff under my direction received (i) 15 original
21 primary data files received in June 2019 covering cars towed by Respondents in SFMTA
22
23
24
25
26 1
Verified Petition for Writ of Mandate, Code Civ. Proc. § 1085, Complaint for Declaratory Relief; and
Taxpayer Complaint Pursuant to Code Civ. Proc. § 526A, Coalition on Homelessness v. City and County of
27 San Francisco, et al., Case No. CPF-18-516456 (Superior Court of California, County of San
Francisco)[hereinafter “Complaint”], ¶¶ 2-7.
28 2
Complaint, ¶¶ 1, 57.
2
DECLARATION OF PETER HESS, PH.D.
1 fiscal year (“FY”) 2017, FY 2018, and part of FY 2019, 3 and (ii) 12 additional files received
2 in November 2020 covering fee information for cars released or sold in FY 2019. 4
3 8. Twelve of the original 15 primary data files are at the tow level, i.e., each
4 observation (row in the dataset) corresponds to a unique tow. Each observation (row)
5 includes information on the make, model, body type, year, plus a unique vehicle ID that
6 helps identify unique tows, the address from which the car was towed, a reason code
7 identifying why the car was towed, date and time of the tow, and a status variable
8 identifying the outcome of the tow. Each observation here corresponds to a unique tow.
9 After standardizing variable names across files, the files were stacked together into one
10 larger dataset consisting of 127,611 rows covering 127,611 unique tows.
11 9. Three of the original 15 data files (receipt-fee level) contain information on
12 fees collected from a tow, either upon return of the car to the owner, or from a sale. These
13 data also contains the code associated with a particular fee item, the effective date of receipt
14 of the particular fee, a unique Vehicle ID variable, car license plate number and issuing
15 state, and vehicle identification number (“VIN”) of cars towed by Respondents. The
16 combined dataset consists of 521,513 rows with data on 91,568 unique tows.
17 10. An additional twelve data files were subsequently produced to supplement
18 the three original fee level datasets and cover vehicles sold or released in FY 2019. The
19 files contain a “fee item” sheet for each month of FY 2019, and like the original fee level
20 files, contain information on fees collected from a tow, either from the return of the car to
21 the owner or from the sale of the car at auction. These additional twelve files together
22 consist of 279,081 rows with data on 45,488 unique tows.
23
3
SFMTA216426, SFMTA216488-SFMTA216499, SFMTA218058, SFMTA218071; For purposes of these
24 data at least, SFMTA’s fiscal years are the annual period ending on 6/30 of the year specified (e.g., FY17
covers the period 7/1/2016-6/30/2017). The FY19 data received covers tows through May 2, 2019.
25 4
See Declaration of Stephanie A. Roeser filed concurrently herewith, ¶ 7 (documents produced by SFMTA
titled: SFMTA_revenue_reconciliation_2018_07; SFMTA_revenue_reconciliation_2018_08;
26 SFMTA_revenue_reconciliation_2018_09; SFMTA_revenue_reconciliation_2018_10;
SFMTA_revenue_reconciliation_2018_11; SFMTA_revenue_reconciliation_2018_12;
27 SFMTA_revenue_reconciliation_2019_01; SFMTA_revenue_reconciliation_2019_02;
SFMTA_revenue_reconciliation_2019_03; SFMTA_revenue_reconciliation_2019_04;
28 SFMTA_revenue_reconciliation_2019_05; SFMTA_revenue_reconciliation_2019_06).
3
DECLARATION OF PETER HESS, PH.D.
1 11. The final combined tow level and receipt-fee level data contain 122,610
2 unique tows and are the basis for the analyses below. The methodology for the data
3 processing is included in Appendix B.
4 12. With research assistance from LCCRSF, the 98 unique tow reason codes
5 were translated into tow reason descriptions and grouped into the following eight tow
6 reason categories which are used to analyze towing practices: Registration; Debt Collection;
7 Registration/Debt Collection; 5 Abandoned Vehicle; License Suspension; Criminal
8 Investigation; Flow of Traffic; and Other. 6 (See Appendix C). Debt collection tows refer to
9 tows for five or more unpaid parking citations.
10 III. THE ANALYSIS
11 13. Exhibit 1 summarizes the distribution of tows by tow reason category. It
12 shows that the most common reason for tows is “Flow of Traffic” violations; 85,162 of the
13 122,610 tows recorded from July 3, 2016 through May 2, 2019 (approximately 69% 7) were
14 for reasons related to flow of traffic. Eight percent were related to “Criminal
15 Investigations,” 7% were related to “Registration,” 6% are related to “Abandoned Vehicle,”
16 and 4%—a total of 5,150 tows were related to “Debt Collection.” Each of the remaining
17 three tow reason categories comprises less than 4% of all tows in the final dataset.
18 14. Exhibit 1 also summarizes the distribution of tows by tow reason category
19 by fiscal year. For FY 2017, FY 2018 and the 10 months of FY 2019 for which I have data,
20 the trends in the distribution of tows by tow reason are fairly consistent. Across all three
21
5
Tows for which the tow reason code could arguably be classified as Registration or Debt Collection related
22
are placed in this hybrid category. This category includes reason codes that either (1) indicate that both
unpaid parking tickets and lapsed registration provided authority for the tow, or (2) do not provide enough
23 information to determine whether the basis for the tow was unpaid parking tickets or lapsed registration.
Specifically, it is made up of tows with reason code “SCOF/651.I-O” and “STOP-SWP-SCOFF.” The
24 former code indicates that there was authority for the tow under both Cal. Veh. Code Sections 22651(i)
[unpaid parking tickets] and 22651(o) [lapsed registration]. The latter code suggests that either Section
25 22651(i), Section 22651(o), or both formed the basis of authority for the tow because it is my understanding
that SFMTA uses the term “Scofflaw” tows to refer to both Sections 22651(i) and 22651(o).
26 6
It is my understanding that tow reason codes generally referred to transportation-related legal/regulatory
codes. The “Other” category includes reasons such as “UNIT-SFPD”, “TITLE-SURRENDER”, and
27 “22651.5”
7
All percentages are rounded to the nearest whole number and so approximate, though not qualified as such
28 hereafter.
4
DECLARATION OF PETER HESS, PH.D.
1 years, nearly 70% of annual tows are for “Flow of Traffic” violations, “Criminal
2 Investigation” tows account for 7-9% of annual tows, “Registration” and “Abandoned
3 Vehicle” tows account for 6-7% of annual tows, “Debt Collection” tows account for 4-5%
4 of annual tows, and each of the remaining three tow reason categories comprises less than
5 4% of tows.
6 15. An interesting way to cut the data to get a likely sense of its
7 (dis)proportionate impact on relatively low-income segments of the population is by the
8 final disposition of a tow event, i.e., whether the towed vehicle was released back to its
9 owner or sold at auction. From an economic perspective, people with the means to do so
10 will pay the fines required to get their car released back to them rather than leave it
11 unclaimed to subsequently be sold, particularly if the value of the vehicle is greater than the
12 fees required to retrieve the car. 8 Exhibits 2 and 3 summarize tows by final disposition of
13 the towed vehicles in tabular and chart format respectively.
14 16. Based on input from LCCRSF, I understand that the tow categories most
15 associated with disproportionate impact on low-income people are those related to debt
16 collection, i.e., Debt Collection (unpaid parking tickets), Registration (lapsed vehicle
17 registration) and Registration/Debt Collection (collectively “Debt Collection Related
18 Reasons”). 9 The other, non-Debt Collection Related Reasons for towing vehicles are more
19 clearly public safety-related.
20
21
22 8
The impact of towing on low income and homeless people in San Francisco and other parts of the country
has been widely reported. See for example: http://time.com/3182726/if-you-want-to-see-inequality-in-the-u-
23 s-at-its-worst-visit-an-impound-lot/, accessed February 22, 2019;
https://www.sfgate.com/politics/article/SF-s-huge-towing-fees-can-be-devastating-to-the-6876008.php,
24 accessed February 22, 2019; https://www.sfchronicle.com/news/article/SF-gives-low-income-people-a-
break-in-city-s-12917281.php, accessed February 22,2019; https://calmatters.org/articles/lawsuit-homeless-
25 vehicle-tow-california-impound/, accessed February 22, 2019;
https://www.thestranger.com/slog/2018/03/05/25878343/when-a-vehicle-is-a-home-city-must-reconsider-
26 tow-fees-judge-rules, accessed February 22, 2019; http://beyondchron.org/san-franciscos-car-towing-
racket/, accessed February 22, 2019; https://www.wbez.org/shows/wbez-news/chicago-seized-and-sold-
27 nearly-50000-cars-over-tickets-since-2011-sticking-owners-with-debt/1d73d0c1-0ed2-4939-a5b2-
1431c4cbf1dd, accessed February 22, 2019.
28 9
Complaint, ¶¶ 12-24.
5
DECLARATION OF PETER HESS, PH.D.
1 17. As shown in Exhibits 2 and 3, in 85% of tows, the towed vehicle is ultimately
2 released, while in 15% of tows, the towed vehicle is ultimately sold. In nearly all cases in
3 which vehicles are towed for “Flow of Traffic” reasons (97% of such cases), the vehicles
4 are ultimately released. In contrast, in over 60% the cases in which vehicles are towed for
5 “Registration/Debt Collection”, the vehicles are ultimately sold. The tow reason categories
6 with the next highest shares of sold (vs. released) vehicles, in descending order, are:
7 “Registration” (58% sold), “License Suspension” (52% sold), “Debt Collection” (47%
8 sold), “Abandoned Vehicle” (41% sold), “Other” (25% sold), “Criminal Investigation”
9 (19% sold), and “Flow of Traffic” (3% sold). The data show that vehicles towed for Debt
10 Collection Related reasons are more likely to be sold (51%) than released. Therefore, even
11 vehicles that were towed for being abandoned in the first place were more likely to be
12 reclaimed than vehicles towed because their owner owed the City money.
13 18. A statistical (Chi-Square) test indicates there is approximately 0% likelihood
14 that the observed relationship between Debt Collection Related and Non-Debt Collection
15 Related tows and the ultimate disposition of the towed vehicles is attributable to chance.
16 The total number of Debt Collection Related tows was 7,009 (6% of all tows), of which
17 3,571 (51%) ultimately resulted in the sale of the towed vehicle, whereas only 12% of all
18 non-Debt Collection Related tows resulted in the towed vehicle being sold. A statistical test
19 rejects the hypothesis that these proportions are, in fact, the same and that the difference is
20 a random feature of the data with 99% confidence. 10 (See Exhibit 4)
21 19. Exhibits 5 and 6 summarize the amount of fees due by tow reason category
22 among released cars. The average total amount due across all tow categories is $545, but
23 the highest average by category was approximately $1,599 for “Debt Collection” tows. The
24 average total amounts due for “Debt Collection” and “Registration/Debt Collection,” are
25
26 10
This test constructs a confidence interval around the observed difference in proportions by assuming the
data are drawn independently. The large sample sizes allow us to assume that the distributions are
27 approximately Normal by appealing to the Central Limit Theorem. When the confidence interval does not
include zero, the Null hypothesis that there is, in fact, no difference in proportions can be rejected. See
28 Daniel (1995); Section 6.6, page 175.
6
DECLARATION OF PETER HESS, PH.D.
1 the first and second highest across all tow reason categories. The average amount of fees
2 due for these tows is $1,498 while it is $513 for Non-Debt Collection - Related tows. A
3 statistical test also rejects the hypothesis of no difference between the amount of fees for
4 Debt Collection Related tows and other tows with 99% confidence. (See Exhibit 4) That
5 owners of these cars are much more likely to have lower incomes makes the burden of fees
6 particularly onerous. As noted previously, a substantial number of Debt Collection - Related
7 tows (51%) were sold rather than returned to their owners.
8 20. Vehicles subject to Debt Collection - Related tows are also among the oldest
9 and lowest value cars. (See Exhibits 4 and 7-11). These two findings further buttress the
10 conclusion that poverty tows disproportionately target lower income individuals. Lower
11 income households tend to own vehicles that are older than those owned by higher income
12 households. 11 Indeed, the difference between the average age of cars subject to Debt
13 Collection - Related tows (13 years and 339 days) and the average age of cars towed for
14 other reasons (10 years and 102 days) is statistically significant with 99% confidence. 12
15 (See Exhibit 4)
16 21. Exhibits 7 and 8 further demonstrate that on average, Debt Collection
17 Related tows are less likely to be newer vehicles, while Exhibits 9 and 10 demonstrate that
18 newer vehicles are sold at auction for more money. Vehicles towed for “Registration” have
19 the lowest percent of vehicles that are 0-5 years old (6%), followed by “Registration/Debt
20 Collection” (10%), then “License Suspension” (13%), “Other” (14%), “Abandoned
21 Vehicle” (18%), and “Debt Collection” (19%). (See Exhibit 7) The vehicles in the 0-5 years
22 old category are sold at auctions for roughly double the price that the next oldest vehicles
23 (5-10 years old) are sold for. (See Exhibit 9) Exhibits 9 and 10 also show that older cars are,
24 on average, ultimately released or sold for less than newer cars, and that as cars get older,
25 their average sale price becomes less than the average release price. Taken together, these
26
27 11
See, for example, an article on vehicle ownership patterns of US households in 2009 and 2017:
https://www.eia.gov/todayinenergy/detail.php?id=36914
28 12
See Daniel (1995), Section 6.4, page 164.
7
DECLARATION OF PETER HESS, PH.D.
1 facts likely help explain why cars towed for Debt Collection reasons are less likely to be
2 released than sold.
3 IV. CONCLUSION
4 22. Vehicles towed for Debt Collection Related Reasons are more likely to be sold
5 rather than released back to their owners than vehicles towed for other reasons. The data
6 suggest that this is at least in part because vehicles towed for Debt Collection Related
7 Reasons have higher average amounts due, including for example, for outstanding unpaid
8 parking tickets, than vehicles towed for other reasons. The data also show that cars towed
9 for Debt Collection Related Reasons are on average older, and (not surprisingly), on
10 average, less valuable. These findings, together with the logic that relatively poorer people
11 are more likely to have relatively older, less valuable cars, suggest that the economic burden
12 for owners of vehicles towed for Debt Collection Related reasons to retrieve their vehicles
13 is disproportionately high, and can create substantial barriers for individuals that may have
14 relied heavily upon their vehicles for their livelihood, including for shelter and employment,
15 to retrieve their vehicles and maintain their livelihood.
16 I declare under penalty of perjury under the laws of the State of California that the
17 foregoing is true and correct, executed this 7th day of June, 2021, at 10:30 pm in San
18 Francisco, California.
19
20
Peter Hess, Ph.D.
21
22
23
24
25
26
27
28
8
DECLARATION OF PETER HESS, PH.D.
Privileged and Confidential
5/25/2021 Appendix A Attorneys' Eyes Only
PETER HESS, PH.D.
Vice President
Phone: 650 853 7214 1010 El Camino Real
Fax: 650 323 2796 Suite 310
phess@analysisgroup.com Menlo Park, CA 94025
Dr. Hess specializes in the application of microeconomic theory and analytical methods in litigation,
business, and policy contexts. He has assisted clients in all phases of the litigation process, including
pretrial discovery, exposure analyses, construction and evaluation of settlement proposals, quantification
of damages, and the preparation of expert reports and testimony. Dr. Hess has consulted on commercial
damages and valuation, intellectual property, antitrust, securities, finance, class action, employment,
environmental, policy, regulatory, and general business matters. His experience spans the financial
services, information technology, computer hardware and software, electronics, telecommunications,
biotechnology, health care, and manufacturing industries at the federal, state, and local levels. Dr. Hess’s
work has included assessment of market definition, predatory pricing, and loss causation; estimation of
lost profits, reasonable royalties, and commercial damages; analyses of internet, transaction, investment,
and insurance claims data; business valuation; portfolio performance simulation and forecasting; cost-
benefit analysis; and policy evaluation. Prior to joining Analysis Group, Dr. Hess was a lecturer and post-
doctoral fellow at University of California, Berkeley. There, he worked closely with the California
Department of Finance and the California Air Resources Board to model the fiscal and economic impacts
of legislative and regulatory proposals.
EDUCATION
2001 Ph.D., agricultural and resource economics, University of California, Berkeley
Fields of specialization: applied microeconomics, regional economics
Dissertation: “Hedonic Estimation and Economic Geography”
2001 M.S., agricultural and resource economics, University of California, Berkeley
1993 A.B., economics and public policy studies (cum laude), Duke University
Honors thesis: “Emissions Trading Under the Clean Air Act”
PROFESSIONAL EXPERIENCE
2002–Present Analysis Group, Inc.
Vice President (2009–Present)
Manager (2005–2008)
Associate (2002–2004)
2001–2002 University of California, Berkeley
Lecturer and Post-Doctoral Fellow
2001 Law and Economics Consulting Group
Independent Consultant
1996–2001 University of California, Berkeley; Department of Finance, California Air
Resources Board
Graduate Student Researcher
Privileged and Confidential
5/25/2021 Appendix A Attorneys' Eyes Only
1993–1995 National Wildlife Federation, League of Conservation Voters
Paid Intern
SELECTED CONSULTING EXPERIENCE
Commercial Damages/Valuation
Confidential breach of contract matter
Consulting and testifying expert in ongoing breach of contract dispute between a professional services
firm and IT vendor.
Confidential joint venture dispute
Analyzed cost accounting, transfer pricing, and corporate governance issues and their impact on the
value of a minority ownership stake in a joint venture.
Confidential appraisal matter
Estimated fair value of an M&A target in the technology sector in anticipation of potential
shareholder litigation.
Confidential fraud dispute
Analyzed symptoms of fraud for liability purposes, and estimated damages by tracing actual
payments and modeling more appropriate alternative “but-for” payments based on market conditions.
Confidential consumer class action litigation
Developed research and analyses regarding corporate structure and governance relevant to veil-
piercing.
Confidential breach of contract, quantum meruit, and fraud dispute
Testifying and consulting expert in mediation regarding valuation, ownership stakes, and
compensation at a technology consultancy.
Jada Stringer v. Durham School Services, L.P
Testifying damages expert in litigation involving treatment of a handicapped student by a busing
contractor in a metropolitan school district.
Confidential breach of contract and theft of trade secret dispute
Consulting expert on potential exposure stemming from breach of contract and theft of trade secrets
and claims in the defense industry.
Confidential breach of contract dispute
Consulted on breach of contract damages arising from disruption of the worldwide supply chain of a
major computer peripherals manufacturer.
Confidential auto dealership litigation
Consulted on liability and damages issues in litigation involving auto dealership sales practices.
US Unwired v. Sprint
Consulted on damages associated with the change in status of Sprint affiliate US Unwired.
Class action against health insurer
Consulted on liability, exposure, and settlement proposals related to alleged breach of contract by a
large health insurance provider.
Privileged and Confidential
5/25/2021 Appendix A Attorneys' Eyes Only
Arthur Stockton v. Fidelity & Deposit
Consulted on the value of an investment management firm and potential diminution stemming from
alleged breach of contract.
Her Associates v. Kaiser
Consulted on damages stemming from breach of contract claims against a major health care provider.
Confidential business mediation
Estimated amounts due to parties in a contract dispute between former business associates.
Confidential business valuation
Analyzed the performance and value of hedge funds and investment management companies.
Confidential municipal litigation
Consulted on valuation of unresolved fishing, hydropower, and gaming issues between a Native
American Indian tribe and a county government for settlement purposes.
Intellectual Property
Confidential trade secret dispute
Assisted in pretrial discovery and damages theory development in a case involving allegations of theft
of trade secrets, breach of contract, tortious interference, and unfair business practices in the life
sciences industry.
Confidential patent infringement litigation
Supported development of expert testimony regarding allegations of irreparable harm in conjunction
with a motion for preliminary injunction.
Apple Inc. v. Samsung Electronics Co., Ltd.
Supported development of expert testimony regarding consumer demand for patented functionality.
Summit Data Systems v. EMC Corp., et al.
Submitted expert report on reasonable royalty for licensing network storage related technology.
Avocet Sports Technology, Inc. and Vertical Instruments, Inc. vs. Amer Sports Corporation,
Suunto, U.S.A, Inc., Amer Sports U.S.A, and Amer Sports Winter & Outdoor Company
Submitted expert report on reasonable royalty rates for licensing of sport instrument technology.
Confidential patent infringement litigation in the computer industry
Led support for development of reasonable royalty and damages opinions regarding internet
communications technology.
Confidential ITC investigation in the electronics industry
Supported development of expert testimony related to the domestic industry requirement.
Confidential trademark case in the automotive industry
Supported development of expert testimony on potential consumer confusion arising from the use of
similar keywords in online advertising.
W.L. Gore & Associates, Inc. vs. GI Dynamics, Inc.
Consulted on reasonable royalties and lost profits related to claimed theft of trade secrets, breach of
contract, and misrepresentation which allegedly enabled accelerated market entry by a competitor.
Privileged and Confidential
5/25/2021 Appendix A Attorneys' Eyes Only
Confidential patent infringement litigation
Consulted on lost profits due to lost sales and price erosion stemming from alleged infringement of
multiple patents for high tech laboratory equipment.
Confidential patent valuation in the online music industry
Consulted on the value of a patent given prior rulings on validity and infringement of certain claims.
Confidential copyright infringement litigation
Consulted on damages stemming from alleged copyright infringement of source code for social
network based games.
Intellivision v. Microsoft Corporation
Consulted on damages regarding alleged misappropriation of intellectual property related to digital
and interactive television.
Confidential patent infringement litigation
Consulted on reasonable royalty rates and damages related to industrial machinery.
Confidential copyright and breach of contract arbitration
Consulted on damages arising from copyright infringement breach of contract and a distribution
dispute between consumer software companies.
Capo Inc. v. Dioptics Medical Products, Inc.
Consulted on damages in trade dress dispute between consumer product companies.
Confidential patent infringement litigation
Performed market research supporting damage claims related to imaging technology.
Antitrust
Confidential antitrust litigation
Consulted on and led research and analyses related to market definition, liability, and damages
regarding monopolization claims in the electric power industry.
Solyndra v. Suntech, et al.
Supporting development of expert testimony regarding market definition and power, liability, and
damages related to claims of collusion and predatory pricing in the solar industry.
Confidential antitrust litigation
Supported development of expert testimony on market definition and damages related to attempted
monopolization claims in the consumer electronics industry.
Class action involving Noranda and DuPont
Consulted on liability by analyzing the market for sulfuric acid. Assembled and analyzed a one
million-plus observation database of sulfuric acid sales by multiple vendors over multiple years.
Sun Microsystems v. Microsoft Corporation
Led market research modules supporting damages analyses in antitrust litigation.
Class actions involving Microsoft
Assisted in the estimation of software development and other work around costs, support of damages
testimony, and evaluation of settlement terms in a series of price overcharge litigations.
Privileged and Confidential
5/25/2021 Appendix A Attorneys' Eyes Only
Confidential private antitrust litigation
Consulted on liability and damage issues in the construction industry.
Securities/Finance
Confidential banking litigation
Analysis of a bank’s close-out of foreign currency positions arising from the Continuous Linked
Settlement service it provided to a major financial institution during the financial crisis.
Confidential class action securities litigation
Supported development of expert testimony addressing insider trading and company performance
related allegations in the for-profit education space.
SEC investigation in the mutual fund industry
Supported development of expert testimony related to mutual fund structure, portfolio manager
responsibilities, portfolio risk, portfolio diversification, and the effects of the financial crisis on fixed
income investments.
Confidential fraud and breach of contract litigation in the banking industry
Supported development of expert testimony related to the impact of the financial crisis on the
valuation of mortgage backed securities and the critique of an opposing expert’s model that purported
to measure the impact of certain public disclosures on such securities.
Preview
1 BAY AREA LEGAL AID Novella Y. Coleman SBN 281632 2 Rachel Haverkorn RLSN 803511 ELECTRONICALLY 1800 Market Street, 3rd Floor San Francisco, CA 94102 F I L E D 3 Superior Court of California, Telephone: 415 982 1300 County of San Francisco Facsimile: 415 982 4243 4 ncoleman@baylegal.org 06/08/2021 Clerk of the Court rhaverkorn@baylegal.org BY: SANDRA SCHIRO 5 Deputy Clerk 6 LAWYERS’ COMMITTEE FOR CIVIL MANATT, PHELPS & PHILLIPS, LLP RIGHTS OF THE SAN FRANCISCO Barry W. Lee SBN 088685 7 BAY AREA Christian E. Baker SBN 247006 Stephanie A. Roeser SBN 306343 Elisa Della-Piana SBN 226462 One Embarcadero Center, 30th Floor 8 131 Steuart Street, Suite 400 San Francisco, CA 94111 San Francisco, CA 94105 Telephone: (415) 291-7400 9 Telephone: (415) 543-9444 Facsimile: (415) 291-7474 10 Facsimile: (415) 543-0296 BWLee@manatt.com edellapiana@lccrsf.org CBaker@manatt.com 11 SRoeser@manatt.com Attorneys For Petitioner 12 COALITION ON HOMELESSNESS 13 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FRANCISCO 14 UNLIMITED CIVIL JURISDICTION 15 COALITION ON HOMELESSNESS, Case No. CPF-18-516456 16 a California non-profit corporation, DECLARATION OF PETER HESS, PH.D. IN SUPPORT OF PETITIONER 17 Petitioner, COALITION ON HOMELESSNESS’S MOTION FOR WRIT OF MANDATE, 18 INJUNCTION, AND DECLARATORY v. RELIEF 19 CITY AND COUNTY OF SAN FRANCISCO; the SAN FRANCISCO [Filed concurrently with: 20 (1) Notice of Motion and Motion; MUNICIPAL TRANSPORTATION (2) Memorandum of Points and Authorities; 21 AGENCY; the SAN FRANCISCO (3) Declarations of Christopher Arvin, POLICE DEPARTMENT; TEGSCO Kimberly Brown, Jennifer Friedenbach, Margot 22 LLC dba SAN FRANCISCO AUTO Kushel, Victoria Larson, Stephanie A. Roeser, RETURN, and MiQueesha Willis; 23 (4) Request for Judicial Notice; and Respondents. (5) [Proposed] Order.] 24 Hearing 25 Date: July 22, 2021 Time: 9:30 a.m. 26 Dept: 302 27 Complaint filed: December 19, 2018 28 DECLARATION OF PETER HESS, PH.D. 1 DECLARATION OF PETER HESS, PH.D. 2 I, Peter Hess, Ph. D., hereby declare and state, as follows: 3 I. INTRODUCTION 4 A. Personal Background and Experience 5 1. I am a Vice President at Analysis Group, Inc. (“Analysis Group”), an 6 economic, financial, and strategy consulting firm with 14 offices in the United States and 7 abroad. I have a B.A. in economics and public policy from Duke University, and an M.S. 8 and Ph.D. in economics from the University of California at Berkeley. I have published and 9 taught in the field of economics. Prior to joining Analysis Group, I held a postdoctoral 10 research and teaching position at the University of California at Berkeley. 11 2. As a professional economist, I have specific expertise in microeconomics, 12 which is the field of economics that focuses on consumer and firm decision making and 13 behavior. I have extensive experience in the application of economic theory, analytical 14 methods, and data analysis in market and policy contexts. While at Analysis Group, I have 15 worked on many matters involving the compilation and analysis of large datasets to answer 16 questions related to assessing the economic impacts of firms’, individuals’, and 17 governments’ decisions and actions. During my time as a researcher at the University of 18 California at Berkeley, I worked with the California Air Resources Board and the California 19 Department of Finance modeling the impacts of proposed regulations and legislation. A 20 copy of my curriculum vitae is included as Appendix A. 21 B. Relevant Case Background 22 3. Petitioner in this matter is the Coalition on Homelessness, a California non- 23 profit organization that advocates for the rights of homeless and vehicularly housed 24 individuals in San Francisco. Respondents in this matter include the City and County of 25 San Francisco (“City”), the San Francisco Municipal Transportation Agency (“SFMTA”), 26 and the San Francisco Police Department (“SFPD”). Tegsco, LLC dba San Francisco 27 AutoReturn (“AutoReturn”), “the exclusive provider of all tow-related services for the 28 1 DECLARATION OF PETER HESS, PH.D. 1 City,” is also a Defendant, Respondent, and real party in interest in this case. 1 The City, 2 SFMTA, SFPD, and AutoReturn are collectively referred to as “Respondents”. 3 4. The Coalition on Homelessness challenges the City’s policies surrounding 4 towing, impounding, and selling vehicles without warrant, solely because the owner was 5 unable to pay the outstanding five parking tickets. Petitioner seeks a taxpayer injunction 6 and writ of mandate requiring Respondents to amend their towing policy to conform to the 7 mandates of the California constitution and cease towing vehicles where the reason is 8 nonpayment or parking tickets and where Respondents do not have warrant for seizure, do 9 not provide adequate pre-tow and post-tow notice, and/or do not provide vehicle owner with 10 full and fair opportunity to be heard prior to and following the tow. 2 11 C. Assignment 12 5. I have been asked by counsel at the Lawyers Committee for Civil Rights of 13 the San Francisco Bay Area (“LCCRSF”) to analyze data on the towing and disposition of 14 towed cars by Respondents in order to inform the parties and the court of the scope and 15 incidence of the conduct at issue in this case. 16 6. I have directed employees of Analysis Group to assist me in my current 17 assignment. Neither I nor the Analysis Group employees assisting me are being paid for 18 our work on this matter. 19 II. THE DATA 20 7. I and Analysis Group staff under my direction received (i) 15 original 21 primary data files received in June 2019 covering cars towed by Respondents in SFMTA 22 23 24 25 26 1 Verified Petition for Writ of Mandate, Code Civ. Proc. § 1085, Complaint for Declaratory Relief; and Taxpayer Complaint Pursuant to Code Civ. Proc. § 526A, Coalition on Homelessness v. City and County of 27 San Francisco, et al., Case No. CPF-18-516456 (Superior Court of California, County of San Francisco)[hereinafter “Complaint”], ¶¶ 2-7. 28 2 Complaint, ¶¶ 1, 57. 2 DECLARATION OF PETER HESS, PH.D. 1 fiscal year (“FY”) 2017, FY 2018, and part of FY 2019, 3 and (ii) 12 additional files received 2 in November 2020 covering fee information for cars released or sold in FY 2019. 4 3 8. Twelve of the original 15 primary data files are at the tow level, i.e., each 4 observation (row in the dataset) corresponds to a unique tow. Each observation (row) 5 includes information on the make, model, body type, year, plus a unique vehicle ID that 6 helps identify unique tows, the address from which the car was towed, a reason code 7 identifying why the car was towed, date and time of the tow, and a status variable 8 identifying the outcome of the tow. Each observation here corresponds to a unique tow. 9 After standardizing variable names across files, the files were stacked together into one 10 larger dataset consisting of 127,611 rows covering 127,611 unique tows. 11 9. Three of the original 15 data files (receipt-fee level) contain information on 12 fees collected from a tow, either upon return of the car to the owner, or from a sale. These 13 data also contains the code associated with a particular fee item, the effective date of receipt 14 of the particular fee, a unique Vehicle ID variable, car license plate number and issuing 15 state, and vehicle identification number (“VIN”) of cars towed by Respondents. The 16 combined dataset consists of 521,513 rows with data on 91,568 unique tows. 17 10. An additional twelve data files were subsequently produced to supplement 18 the three original fee level datasets and cover vehicles sold or released in FY 2019. The 19 files contain a “fee item” sheet for each month of FY 2019, and like the original fee level 20 files, contain information on fees collected from a tow, either from the return of the car to 21 the owner or from the sale of the car at auction. These additional twelve files together 22 consist of 279,081 rows with data on 45,488 unique tows. 23 3 SFMTA216426, SFMTA216488-SFMTA216499, SFMTA218058, SFMTA218071; For purposes of these 24 data at least, SFMTA’s fiscal years are the annual period ending on 6/30 of the year specified (e.g., FY17 covers the period 7/1/2016-6/30/2017). The FY19 data received covers tows through May 2, 2019. 25 4 See Declaration of Stephanie A. Roeser filed concurrently herewith, ¶ 7 (documents produced by SFMTA titled: SFMTA_revenue_reconciliation_2018_07; SFMTA_revenue_reconciliation_2018_08; 26 SFMTA_revenue_reconciliation_2018_09; SFMTA_revenue_reconciliation_2018_10; SFMTA_revenue_reconciliation_2018_11; SFMTA_revenue_reconciliation_2018_12; 27 SFMTA_revenue_reconciliation_2019_01; SFMTA_revenue_reconciliation_2019_02; SFMTA_revenue_reconciliation_2019_03; SFMTA_revenue_reconciliation_2019_04; 28 SFMTA_revenue_reconciliation_2019_05; SFMTA_revenue_reconciliation_2019_06). 3 DECLARATION OF PETER HESS, PH.D. 1 11. The final combined tow level and receipt-fee level data contain 122,610 2 unique tows and are the basis for the analyses below. The methodology for the data 3 processing is included in Appendix B. 4 12. With research assistance from LCCRSF, the 98 unique tow reason codes 5 were translated into tow reason descriptions and grouped into the following eight tow 6 reason categories which are used to analyze towing practices: Registration; Debt Collection; 7 Registration/Debt Collection; 5 Abandoned Vehicle; License Suspension; Criminal 8 Investigation; Flow of Traffic; and Other. 6 (See Appendix C). Debt collection tows refer to 9 tows for five or more unpaid parking citations. 10 III. THE ANALYSIS 11 13. Exhibit 1 summarizes the distribution of tows by tow reason category. It 12 shows that the most common reason for tows is “Flow of Traffic” violations; 85,162 of the 13 122,610 tows recorded from July 3, 2016 through May 2, 2019 (approximately 69% 7) were 14 for reasons related to flow of traffic. Eight percent were related to “Criminal 15 Investigations,” 7% were related to “Registration,” 6% are related to “Abandoned Vehicle,” 16 and 4%—a total of 5,150 tows were related to “Debt Collection.” Each of the remaining 17 three tow reason categories comprises less than 4% of all tows in the final dataset. 18 14. Exhibit 1 also summarizes the distribution of tows by tow reason category 19 by fiscal year. For FY 2017, FY 2018 and the 10 months of FY 2019 for which I have data, 20 the trends in the distribution of tows by tow reason are fairly consistent. Across all three 21 5 Tows for which the tow reason code could arguably be classified as Registration or Debt Collection related 22 are placed in this hybrid category. This category includes reason codes that either (1) indicate that both unpaid parking tickets and lapsed registration provided authority for the tow, or (2) do not provide enough 23 information to determine whether the basis for the tow was unpaid parking tickets or lapsed registration. Specifically, it is made up of tows with reason code “SCOF/651.I-O” and “STOP-SWP-SCOFF.” The 24 former code indicates that there was authority for the tow under both Cal. Veh. Code Sections 22651(i) [unpaid parking tickets] and 22651(o) [lapsed registration]. The latter code suggests that either Section 25 22651(i), Section 22651(o), or both formed the basis of authority for the tow because it is my understanding that SFMTA uses the term “Scofflaw” tows to refer to both Sections 22651(i) and 22651(o). 26 6 It is my understanding that tow reason codes generally referred to transportation-related legal/regulatory codes. The “Other” category includes reasons such as “UNIT-SFPD”, “TITLE-SURRENDER”, and 27 “22651.5” 7 All percentages are rounded to the nearest whole number and so approximate, though not qualified as such 28 hereafter. 4 DECLARATION OF PETER HESS, PH.D. 1 years, nearly 70% of annual tows are for “Flow of Traffic” violations, “Criminal 2 Investigation” tows account for 7-9% of annual tows, “Registration” and “Abandoned 3 Vehicle” tows account for 6-7% of annual tows, “Debt Collection” tows account for 4-5% 4 of annual tows, and each of the remaining three tow reason categories comprises less than 5 4% of tows. 6 15. An interesting way to cut the data to get a likely sense of its 7 (dis)proportionate impact on relatively low-income segments of the population is by the 8 final disposition of a tow event, i.e., whether the towed vehicle was released back to its 9 owner or sold at auction. From an economic perspective, people with the means to do so 10 will pay the fines required to get their car released back to them rather than leave it 11 unclaimed to subsequently be sold, particularly if the value of the vehicle is greater than the 12 fees required to retrieve the car. 8 Exhibits 2 and 3 summarize tows by final disposition of 13 the towed vehicles in tabular and chart format respectively. 14 16. Based on input from LCCRSF, I understand that the tow categories most 15 associated with disproportionate impact on low-income people are those related to debt 16 collection, i.e., Debt Collection (unpaid parking tickets), Registration (lapsed vehicle 17 registration) and Registration/Debt Collection (collectively “Debt Collection Related 18 Reasons”). 9 The other, non-Debt Collection Related Reasons for towing vehicles are more 19 clearly public safety-related. 20 21 22 8 The impact of towing on low income and homeless people in San Francisco and other parts of the country has been widely reported. See for example: http://time.com/3182726/if-you-want-to-see-inequality-in-the-u- 23 s-at-its-worst-visit-an-impound-lot/, accessed February 22, 2019; https://www.sfgate.com/politics/article/SF-s-huge-towing-fees-can-be-devastating-to-the-6876008.php, 24 accessed February 22, 2019; https://www.sfchronicle.com/news/article/SF-gives-low-income-people-a- break-in-city-s-12917281.php, accessed February 22,2019; https://calmatters.org/articles/lawsuit-homeless- 25 vehicle-tow-california-impound/, accessed February 22, 2019; https://www.thestranger.com/slog/2018/03/05/25878343/when-a-vehicle-is-a-home-city-must-reconsider- 26 tow-fees-judge-rules, accessed February 22, 2019; http://beyondchron.org/san-franciscos-car-towing- racket/, accessed February 22, 2019; https://www.wbez.org/shows/wbez-news/chicago-seized-and-sold- 27 nearly-50000-cars-over-tickets-since-2011-sticking-owners-with-debt/1d73d0c1-0ed2-4939-a5b2- 1431c4cbf1dd, accessed February 22, 2019. 28 9 Complaint, ¶¶ 12-24. 5 DECLARATION OF PETER HESS, PH.D. 1 17. As shown in Exhibits 2 and 3, in 85% of tows, the towed vehicle is ultimately 2 released, while in 15% of tows, the towed vehicle is ultimately sold. In nearly all cases in 3 which vehicles are towed for “Flow of Traffic” reasons (97% of such cases), the vehicles 4 are ultimately released. In contrast, in over 60% the cases in which vehicles are towed for 5 “Registration/Debt Collection”, the vehicles are ultimately sold. The tow reason categories 6 with the next highest shares of sold (vs. released) vehicles, in descending order, are: 7 “Registration” (58% sold), “License Suspension” (52% sold), “Debt Collection” (47% 8 sold), “Abandoned Vehicle” (41% sold), “Other” (25% sold), “Criminal Investigation” 9 (19% sold), and “Flow of Traffic” (3% sold). The data show that vehicles towed for Debt 10 Collection Related reasons are more likely to be sold (51%) than released. Therefore, even 11 vehicles that were towed for being abandoned in the first place were more likely to be 12 reclaimed than vehicles towed because their owner owed the City money. 13 18. A statistical (Chi-Square) test indicates there is approximately 0% likelihood 14 that the observed relationship between Debt Collection Related and Non-Debt Collection 15 Related tows and the ultimate disposition of the towed vehicles is attributable to chance. 16 The total number of Debt Collection Related tows was 7,009 (6% of all tows), of which 17 3,571 (51%) ultimately resulted in the sale of the towed vehicle, whereas only 12% of all 18 non-Debt Collection Related tows resulted in the towed vehicle being sold. A statistical test 19 rejects the hypothesis that these proportions are, in fact, the same and that the difference is 20 a random feature of the data with 99% confidence. 10 (See Exhibit 4) 21 19. Exhibits 5 and 6 summarize the amount of fees due by tow reason category 22 among released cars. The average total amount due across all tow categories is $545, but 23 the highest average by category was approximately $1,599 for “Debt Collection” tows. The 24 average total amounts due for “Debt Collection” and “Registration/Debt Collection,” are 25 26 10 This test constructs a confidence interval around the observed difference in proportions by assuming the data are drawn independently. The large sample sizes allow us to assume that the distributions are 27 approximately Normal by appealing to the Central Limit Theorem. When the confidence interval does not include zero, the Null hypothesis that there is, in fact, no difference in proportions can be rejected. See 28 Daniel (1995); Section 6.6, page 175. 6 DECLARATION OF PETER HESS, PH.D. 1 the first and second highest across all tow reason categories. The average amount of fees 2 due for these tows is $1,498 while it is $513 for Non-Debt Collection - Related tows. A 3 statistical test also rejects the hypothesis of no difference between the amount of fees for 4 Debt Collection Related tows and other tows with 99% confidence. (See Exhibit 4) That 5 owners of these cars are much more likely to have lower incomes makes the burden of fees 6 particularly onerous. As noted previously, a substantial number of Debt Collection - Related 7 tows (51%) were sold rather than returned to their owners. 8 20. Vehicles subject to Debt Collection - Related tows are also among the oldest 9 and lowest value cars. (See Exhibits 4 and 7-11). These two findings further buttress the 10 conclusion that poverty tows disproportionately target lower income individuals. Lower 11 income households tend to own vehicles that are older than those owned by higher income 12 households. 11 Indeed, the difference between the average age of cars subject to Debt 13 Collection - Related tows (13 years and 339 days) and the average age of cars towed for 14 other reasons (10 years and 102 days) is statistically significant with 99% confidence. 12 15 (See Exhibit 4) 16 21. Exhibits 7 and 8 further demonstrate that on average, Debt Collection 17 Related tows are less likely to be newer vehicles, while Exhibits 9 and 10 demonstrate that 18 newer vehicles are sold at auction for more money. Vehicles towed for “Registration” have 19 the lowest percent of vehicles that are 0-5 years old (6%), followed by “Registration/Debt 20 Collection” (10%), then “License Suspension” (13%), “Other” (14%), “Abandoned 21 Vehicle” (18%), and “Debt Collection” (19%). (See Exhibit 7) The vehicles in the 0-5 years 22 old category are sold at auctions for roughly double the price that the next oldest vehicles 23 (5-10 years old) are sold for. (See Exhibit 9) Exhibits 9 and 10 also show that older cars are, 24 on average, ultimately released or sold for less than newer cars, and that as cars get older, 25 their average sale price becomes less than the average release price. Taken together, these 26 27 11 See, for example, an article on vehicle ownership patterns of US households in 2009 and 2017: https://www.eia.gov/todayinenergy/detail.php?id=36914 28 12 See Daniel (1995), Section 6.4, page 164. 7 DECLARATION OF PETER HESS, PH.D. 1 facts likely help explain why cars towed for Debt Collection reasons are less likely to be 2 released than sold. 3 IV. CONCLUSION 4 22. Vehicles towed for Debt Collection Related Reasons are more likely to be sold 5 rather than released back to their owners than vehicles towed for other reasons. The data 6 suggest that this is at least in part because vehicles towed for Debt Collection Related 7 Reasons have higher average amounts due, including for example, for outstanding unpaid 8 parking tickets, than vehicles towed for other reasons. The data also show that cars towed 9 for Debt Collection Related Reasons are on average older, and (not surprisingly), on 10 average, less valuable. These findings, together with the logic that relatively poorer people 11 are more likely to have relatively older, less valuable cars, suggest that the economic burden 12 for owners of vehicles towed for Debt Collection Related reasons to retrieve their vehicles 13 is disproportionately high, and can create substantial barriers for individuals that may have 14 relied heavily upon their vehicles for their livelihood, including for shelter and employment, 15 to retrieve their vehicles and maintain their livelihood. 16 I declare under penalty of perjury under the laws of the State of California that the 17 foregoing is true and correct, executed this 7th day of June, 2021, at 10:30 pm in San 18 Francisco, California. 19 20 Peter Hess, Ph.D. 21 22 23 24 25 26 27 28 8 DECLARATION OF PETER HESS, PH.D. Privileged and Confidential 5/25/2021 Appendix A Attorneys' Eyes Only PETER HESS, PH.D. Vice President Phone: 650 853 7214 1010 El Camino Real Fax: 650 323 2796 Suite 310 phess@analysisgroup.com Menlo Park, CA 94025 Dr. Hess specializes in the application of microeconomic theory and analytical methods in litigation, business, and policy contexts. He has assisted clients in all phases of the litigation process, including pretrial discovery, exposure analyses, construction and evaluation of settlement proposals, quantification of damages, and the preparation of expert reports and testimony. Dr. Hess has consulted on commercial damages and valuation, intellectual property, antitrust, securities, finance, class action, employment, environmental, policy, regulatory, and general business matters. His experience spans the financial services, information technology, computer hardware and software, electronics, telecommunications, biotechnology, health care, and manufacturing industries at the federal, state, and local levels. Dr. Hess’s work has included assessment of market definition, predatory pricing, and loss causation; estimation of lost profits, reasonable royalties, and commercial damages; analyses of internet, transaction, investment, and insurance claims data; business valuation; portfolio performance simulation and forecasting; cost- benefit analysis; and policy evaluation. Prior to joining Analysis Group, Dr. Hess was a lecturer and post- doctoral fellow at University of California, Berkeley. There, he worked closely with the California Department of Finance and the California Air Resources Board to model the fiscal and economic impacts of legislative and regulatory proposals. EDUCATION 2001 Ph.D., agricultural and resource economics, University of California, Berkeley Fields of specialization: applied microeconomics, regional economics Dissertation: “Hedonic Estimation and Economic Geography” 2001 M.S., agricultural and resource economics, University of California, Berkeley 1993 A.B., economics and public policy studies (cum laude), Duke University Honors thesis: “Emissions Trading Under the Clean Air Act” PROFESSIONAL EXPERIENCE 2002–Present Analysis Group, Inc. Vice President (2009–Present) Manager (2005–2008) Associate (2002–2004) 2001–2002 University of California, Berkeley Lecturer and Post-Doctoral Fellow 2001 Law and Economics Consulting Group Independent Consultant 1996–2001 University of California, Berkeley; Department of Finance, California Air Resources Board Graduate Student Researcher Privileged and Confidential 5/25/2021 Appendix A Attorneys' Eyes Only 1993–1995 National Wildlife Federation, League of Conservation Voters Paid Intern SELECTED CONSULTING EXPERIENCE Commercial Damages/Valuation Confidential breach of contract matter Consulting and testifying expert in ongoing breach of contract dispute between a professional services firm and IT vendor. Confidential joint venture dispute Analyzed cost accounting, transfer pricing, and corporate governance issues and their impact on the value of a minority ownership stake in a joint venture. Confidential appraisal matter Estimated fair value of an M&A target in the technology sector in anticipation of potential shareholder litigation. Confidential fraud dispute Analyzed symptoms of fraud for liability purposes, and estimated damages by tracing actual payments and modeling more appropriate alternative “but-for” payments based on market conditions. Confidential consumer class action litigation Developed research and analyses regarding corporate structure and governance relevant to veil- piercing. Confidential breach of contract, quantum meruit, and fraud dispute Testifying and consulting expert in mediation regarding valuation, ownership stakes, and compensation at a technology consultancy. Jada Stringer v. Durham School Services, L.P Testifying damages expert in litigation involving treatment of a handicapped student by a busing contractor in a metropolitan school district. Confidential breach of contract and theft of trade secret dispute Consulting expert on potential exposure stemming from breach of contract and theft of trade secrets and claims in the defense industry. Confidential breach of contract dispute Consulted on breach of contract damages arising from disruption of the worldwide supply chain of a major computer peripherals manufacturer. Confidential auto dealership litigation Consulted on liability and damages issues in litigation involving auto dealership sales practices. US Unwired v. Sprint Consulted on damages associated with the change in status of Sprint affiliate US Unwired. Class action against health insurer Consulted on liability, exposure, and settlement proposals related to alleged breach of contract by a large health insurance provider. Privileged and Confidential 5/25/2021 Appendix A Attorneys' Eyes Only Arthur Stockton v. Fidelity & Deposit Consulted on the value of an investment management firm and potential diminution stemming from alleged breach of contract. Her Associates v. Kaiser Consulted on damages stemming from breach of contract claims against a major health care provider. Confidential business mediation Estimated amounts due to parties in a contract dispute between former business associates. Confidential business valuation Analyzed the performance and value of hedge funds and investment management companies. Confidential municipal litigation Consulted on valuation of unresolved fishing, hydropower, and gaming issues between a Native American Indian tribe and a county government for settlement purposes. Intellectual Property Confidential trade secret dispute Assisted in pretrial discovery and damages theory development in a case involving allegations of theft of trade secrets, breach of contract, tortious interference, and unfair business practices in the life sciences industry. Confidential patent infringement litigation Supported development of expert testimony regarding allegations of irreparable harm in conjunction with a motion for preliminary injunction. Apple Inc. v. Samsung Electronics Co., Ltd. Supported development of expert testimony regarding consumer demand for patented functionality. Summit Data Systems v. EMC Corp., et al. Submitted expert report on reasonable royalty for licensing network storage related technology. Avocet Sports Technology, Inc. and Vertical Instruments, Inc. vs. Amer Sports Corporation, Suunto, U.S.A, Inc., Amer Sports U.S.A, and Amer Sports Winter & Outdoor Company Submitted expert report on reasonable royalty rates for licensing of sport instrument technology. Confidential patent infringement litigation in the computer industry Led support for development of reasonable royalty and damages opinions regarding internet communications technology. Confidential ITC investigation in the electronics industry Supported development of expert testimony related to the domestic industry requirement. Confidential trademark case in the automotive industry Supported development of expert testimony on potential consumer confusion arising from the use of similar keywords in online advertising. W.L. Gore & Associates, Inc. vs. GI Dynamics, Inc. Consulted on reasonable royalties and lost profits related to claimed theft of trade secrets, breach of contract, and misrepresentation which allegedly enabled accelerated market entry by a competitor. Privileged and Confidential 5/25/2021 Appendix A Attorneys' Eyes Only Confidential patent infringement litigation Consulted on lost profits due to lost sales and price erosion stemming from alleged infringement of multiple patents for high tech laboratory equipment. Confidential patent valuation in the online music industry Consulted on the value of a patent given prior rulings on validity and infringement of certain claims. Confidential copyright infringement litigation Consulted on damages stemming from alleged copyright infringement of source code for social network based games. Intellivision v. Microsoft Corporation Consulted on damages regarding alleged misappropriation of intellectual property related to digital and interactive television. Confidential patent infringement litigation Consulted on reasonable royalty rates and damages related to industrial machinery. Confidential copyright and breach of contract arbitration Consulted on damages arising from copyright infringement breach of contract and a distribution dispute between consumer software companies. Capo Inc. v. Dioptics Medical Products, Inc. Consulted on damages in trade dress dispute between consumer product companies. Confidential patent infringement litigation Performed market research supporting damage claims related to imaging technology. Antitrust Confidential antitrust litigation Consulted on and led research and analyses related to market definition, liability, and damages regarding monopolization claims in the electric power industry. Solyndra v. Suntech, et al. Supporting development of expert testimony regarding market definition and power, liability, and damages related to claims of collusion and predatory pricing in the solar industry. Confidential antitrust litigation Supported development of expert testimony on market definition and damages related to attempted monopolization claims in the consumer electronics industry. Class action involving Noranda and DuPont Consulted on liability by analyzing the market for sulfuric acid. Assembled and analyzed a one million-plus observation database of sulfuric acid sales by multiple vendors over multiple years. Sun Microsystems v. Microsoft Corporation Led market research modules supporting damages analyses in antitrust litigation. Class actions involving Microsoft Assisted in the estimation of software development and other work around costs, support of damages testimony, and evaluation of settlement terms in a series of price overcharge litigations. Privileged and Confidential 5/25/2021 Appendix A Attorneys' Eyes Only Confidential private antitrust litigation Consulted on liability and damage issues in the construction industry. Securities/Finance Confidential banking litigation Analysis of a bank’s close-out of foreign currency positions arising from the Continuous Linked Settlement service it provided to a major financial institution during the financial crisis. Confidential class action securities litigation Supported development of expert testimony addressing insider trading and company performance related allegations in the for-profit education space. SEC investigation in the mutual fund industry Supported development of expert testimony related to mutual fund structure, portfolio manager responsibilities, portfolio risk, portfolio diversification, and the effects of the financial crisis on fixed income investments. Confidential fraud and breach of contract litigation in the banking industry Supported development of expert testimony related to the impact of the financial crisis on the valuation of mortgage backed securities and the critique of an opposing expert’s model that purported to measure the impact of certain public disclosures on such securities.