DEADLINE - WordPress.com the truth or falsity of the allegations relating to the acts, conduct,...

SONY PICTURES’ ANSWER TO SECOND

AMENDED COMPLAINT14-CV-4062-LHK

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STEPHEN V. BOMSE (STATE BAR NO. 40686)[email protected] DAVID M. GOLDSTEIN (STATE BAR NO. 142334) [email protected] ORRICK, HERRINGTON & SUTCLIFFE LLP The Orrick Building 405 Howard Street San Francisco, California 94105-2669 Telephone: +1-415-773-5700 Facsimile: +1-415-773-5759 PAUL F. RUGANI (Admitted Pro Hac Vice) [email protected] ORRICK, HERRINGTON & SUTCLIFFE LLP 701 5th Avenue, Suite 5600 Seattle, Washington 98104-7097 Telephone: +1-206-839-4300 Facsimile: +1-206-839-4301 Attorneys for Defendants Sony Pictures Animation Inc. and Sony Pictures Imageworks Inc.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

IN RE ANIMATION WORKERS ANTITRUST LITIGATION

Master Docket No. 14-cv-4062-LHK

SONY PICTURES’ ANSWER TO SECOND CONSOLIDATED AMENDED CLASS ACTION COMPLAINT; DEMAND FOR JURY TRIAL

THIS DOCUMENT APPLIES TO: ALL ACTIONS

Case5:14-cv-04062-LHK Document161 Filed09/17/15 Page1 of 37

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Defendants Sony Pictures Imageworks Inc. and Sony Pictures Animation Inc.

(collectively, “Sony Pictures”) hereby answer the allegations in, and assert affirmative defenses

to, Plaintiffs’ Second Consolidated Amended Class Action Complaint (“SAC”), Dkt. No. 121, as

follows.

Sony Pictures’ answer is limited to the allegations of the SAC concerning Sony Pictures

and its conduct. Sony Pictures is without knowledge or information sufficient to form a belief as

to the truth or falsity of the allegations relating to the acts, conduct, intent or knowledge of others.

Unless the allegations of the SAC are expressly admitted, Sony Pictures denies all

allegations and claims contained in the SAC.

To the extent the headings and subheadings of the SAC contain factual allegations that

require a response, Sony Pictures denies them.

ANSWER

Sony Pictures admits that Plaintiffs purport to bring this action as stated in the preamble to

the Complaint.

I. INTRODUCTION

1. Sony Pictures denies the allegations in Paragraph 1.



4. Sony Pictures denies the allegations in the first and second sentences in Paragraph

4 and denies any allegation that it participated in any non-solicitation or compensation-fixing

agreement as alleged in the Second Amended Complaint. Sony Pictures is without knowledge or

information sufficient to form a belief as to the truth or falsity of the remaining allegations in

Paragraph 4, and on that basis denies them.

5. Sony Pictures denies the allegation in the first sentence in Paragraph 5, the

allegation in the second sentence that it had any agreement with Pixar regarding the solicitation of

employees, and any allegation that it participated in any non-solicitation or compensation-fixing



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information sufficient to form a belief as to the truth or falsity of the remaining allegations in the

second sentence in Paragraph 5, and on that basis denies them.

6. Sony Pictures denies the allegations in the first and third sentences in Paragraph 6

and denies any allegation that it participated in any non-solicitation or compensation-fixing


information sufficient to form a belief as to the truth or falsity of the allegations in the second

sentence in Paragraph 6, and on that basis denies them.

7. Sony Pictures denies the allegations in the first, second and third sentences in

Paragraph 7 and denies any allegation that it participated in any non-solicitation or compensation-

fixing agreement as alleged in the Second Amended Complaint. Sony Pictures is without

knowledge or information sufficient to form a belief as to the truth or falsity of the allegations in

the fourth sentence in Paragraph 7, and on that basis denies them.

8. Sony Pictures denies the allegations in the first and last sentences in Paragraph 8






10. Sony Pictures denies any allegation that it participated in any non-solicitation or

compensation-fixing agreement as alleged in the Second Amended Complaint. Sony Pictures

admits that from time to time it participated in compensation surveys to achieve its legitimate

business objectives. Except as expressly admitted, Sony Pictures denies the remaining allegations

in Paragraph 10.





agreement as alleged in the Second Amended Complaint. Sony Pictures admits that a document


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exists that includes the language quoted in the third sentence in Paragraph 13, but the language

quoted is only an excerpt from the document. Sony Pictures denies any out of context

interpretation or characterization of the document. Sony Pictures is without knowledge or

information sufficient to form a belief as to the truth or falsity of the allegations in the fourth

sentence of Paragraph 13, and on that basis denies them.

14. Sony Pictures denies the allegations in the first and third sentences of Paragraph 14







17. Sony Pictures admits that the United States Department of Justice investigated

recruiting practices at several companies, and that the DOJ closed its investigation as to Sony

Pictures without taking any action. Sony Pictures admits that a document exists that includes the

language quoted in the second, third, and fourth sentences in Paragraph 17, but the language


interpretation or characterization of the document. Except as expressly admitted, Sony Pictures is

without knowledge or information sufficient to form a belief as to the truth or falsity of the

remaining allegations in Paragraph 17, and on that basis denies them.

18. Sony Pictures denies the allegations in the first sentence in Paragraph 18 and

denies any allegation that it participated in any non-solicitation or compensation-fixing agreement

as alleged in the Second Amended Complaint. Sony Pictures admits that Plaintiffs assert they are

entitled to damages on behalf of a purported class, but Sony Pictures denies that it violated any

law and denies that Plaintiff or any purported class member is entitled to any damages or other

relief and further denies that there is a “class” that meets the requirements of Rule 23, Fed. R.

Civ. P.


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PARTIES

19. Sony Pictures admits that Robert Nitsch was employed at Sony Pictures

Imageworks for part of 2004 in Culver City, Los Angeles. Except as expressly admitted, Sony

Pictures is without knowledge or information sufficient to form a belief as to the truth or falsity of

the remaining allegations in Paragraph 19, and on that basis denies them.

20. Sony Pictures is without knowledge or information sufficient to form a belief as to

the truth or falsity of the allegations in Paragraph 20, and on that basis denies them.













27. Sony Pictures admits the allegations in Paragraph 27.

28. Sony Pictures admits the allegations in Paragraph 28.




31. Paragraph 31 purports to be a description of Plaintiffs’ SAC to which no response

is required. To the extent a response is required, Sony Pictures denies the allegations in

Paragraph 31.


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II. JURISDICTION AND VENUE

32. Paragraph 32 is a conclusion of law to which no response is required. To the

extent a response is required, Sony Pictures denies the allegations in Paragraph 32.





III. INTRADISTRICT ASSIGNMENT



IV. NATURE OF WORK IN THE VISUAL EFFECTS AND ANIMATION INDUSTRY

36. Sony Pictures admits that it creates visual effects and animation for films. The

remaining allegations in paragraph 36 are vague and ambiguous and therefore no response is

required. To the extent they require a response, Sony Pictures states that the allegations in

paragraph 36 purport to describe certain matters without alleging facts particularly pertaining to

Sony Pictures. Sony Pictures denies that the allegations set forth a complete and accurate

statement of such matters generally or as they relate to Sony Pictures. Except as expressly

admitted, to the extent the allegations in paragraph 36 require a further response, Sony Pictures is




38. Sony Pictures admits that the training and skills of visual effects and animation

workers are used in industries other than the film industry. Except as expressly admitted, Sony

Pictures denies the allegations in Paragraph 38.

39. Sony Pictures admits that some employees work for the duration of a particular

project and periods of employment vary. The remaining allegations in paragraph 39 are vague

and ambiguous and therefore no response is required. To the extent they require a response, Sony

Pictures states that the allegations in paragraph 39 purport to describe certain matters without


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alleging facts particularly pertaining to Sony Pictures. Sony Pictures denies that the allegations

set forth a complete and accurate statement of such matters generally or as they relate to Sony

Pictures. Except as expressly admitted, to the extent the allegations in paragraph 39 require a

further response, Sony Pictures is without knowledge or information sufficient to form a belief as

to the truth or falsity of the remaining allegations in Paragraph 39, and on that basis denies them.

As to the allegations in footnote 1 to Paragraph 39, footnote 1 is a characterization of Plaintiffs’

SAC, to which no response is required. To the extent a response is required, Sony Pictures

admits that Plaintiffs purport to use the term “employees” in a manner that includes independent

contractors and otherwise denies the allegations.

40. The allegations in paragraph 40 are vague and ambiguous and therefore no

response is required. To the extent they require a response, Sony Pictures states that the

allegations in paragraph 40 purport to describe certain matters without alleging facts particularly

pertaining to Sony Pictures. Sony Pictures denies that the allegations set forth a complete and

accurate statement of such matters generally or as they relate to Sony Pictures. Except as

expressly admitted, to the extent the allegations in paragraph 40 require a further response, Sony



41. Sony Pictures admits that jobs involving visual effects and animation exist in other

countries. Except as expressly admitted, Sony Pictures denies the allegations in Paragraph 41.

V. THE CONSPIRACY


43. Sony Pictures admits that it competed with other companies for employees.

Except as expressly admitted, Sony Pictures denies the allegations in Paragraph 43.

44. Sony Pictures admits that “cold calling” is one mechanism used to identify and

recruit employees. Except as expressly admitted, Sony Pictures denies the remaining allegations

in Paragraph 44.

45. Sony Pictures denies the allegations in the first, second and fourth sentences in

Paragraph 45 and denies any allegation that it participated in any non-solicitation or


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compensation-fixing agreement as alleged in the Second Amended Complaint. Sony Pictures is


allegations in the third sentence in Paragraph 45, and on that basis denies them.






47. Sony Pictures denies the allegations in the first sentence of Paragraph 47 and


as alleged in the Second Amended Complaint. Sony Pictures is without knowledge or

information sufficient to form a belief as to the truth or falsity of the allegations in Paragraph 47,

and on that basis denies them.










53. Sony Pictures denies the allegation in the first sentence in Paragraph 53 that it had

any agreement with Pixar regarding the solicitation of employees and denies any allegation that it

participated in any non-solicitation or compensation-fixing agreement as alleged in the Second

Amended Complaint. Sony Pictures is without knowledge or information sufficient to form a

belief as to the truth or falsity of the remaining allegations in Paragraph 53, and on that basis

denies them.


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54. Sony Pictures denies the allegations in the second sentence of Paragraph 54, denies

the allegation in the first sentence of Paragraph 54 that there was a conspiracy, and denies any

allegation that it participated in any non-solicitation or compensation-fixing agreement as alleged

in the Second Amended Complaint. Sony Pictures is without knowledge or information sufficient

to form a belief as to the truth or falsity of the remaining allegations in Paragraph 54, and on that

basis denies them.

55. Sony Pictures denies the allegations in the first sentence in Paragraph 55 that there

was a conspiracy and denies any allegation that it participated in any non-solicitation or







allegations in Paragraph 56, and on that basis denies them.





58. Sony Pictures denies the allegation in the first sentence of Paragraph 58 that there

was an anti-solicitation scheme and denies any allegation that it participated in any non-

solicitation or compensation-fixing agreement as alleged in the Second Amended Complaint.

Sony Pictures is without knowledge or information sufficient to form a belief as to the truth or

falsity of the remaining allegations in Paragraph 58, and on that basis denies them.


60. Sony Pictures denies the allegations in the first and fourth sentences in Paragraph

60 that there was a conspiracy or anti-solicitation scheme and denies any allegation that it

participated in any non-solicitation or compensation-fixing agreement as alleged in the Second


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Amended Complaint. Sony Pictures is without knowledge or information sufficient to form a

belief as to the truth or falsity of the remaining allegations in Paragraph 60, and on that basis

denies them.



Imageworks is without knowledge or information sufficient to form a belief as to the truth or

falsity of the allegations in Paragraph 61, and on that basis denies them.






63. Sony Pictures admits that Sony Pictures Imageworks is involved in the creation of

visual effects for live action films and that Sony Pictures Animation is involved in the creation of

animated films. Sony Pictures further admits that at various points Sony Pictures Imageworks

expanded to handle production, and it did so by recruiting employees. Except as expressly

admitted, Sony Pictures denies the remaining allegations in Paragraph 63.


the truth or falsity of the allegations in Paragraph 64 and on that basis denies them.





67. Sony Pictures denies the allegations in the first sentence in Paragraph 67, denies

that it had any agreement with Pixar regarding the solicitation of employees and denies any




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basis denies them.

68. Sony Pictures denies the allegation in the first sentence of Paragraph 68 and denies

any allegation that it participated in any non-solicitation or compensation-fixing agreement as

alleged in the Second Amended Complaint. Sony Pictures admits that a document exists that

includes the language quoted in Paragraph 68, but the language quoted is only an excerpt from the

document. Sony Pictures denies any out of context interpretation or characterization of the

document. Sony Pictures denies that it entered into any non-solicitation agreement with ReelFX.

Except as expressly admitted, Sony Pictures denies the remaining allegations in Paragraph 68.

69. Sony Pictures denies the allegation in the first and second sentences in Paragraph





70. Sony Pictures denies the allegation in the first sentence in Paragraph 70 that there

was a conspiracy, denies the allegation in the second sentence that it had any agreement with

Pixar regarding the solicitation of employees, and denies any allegation that it participated in any

non-solicitation or compensation-fixing agreement as alleged in the Second Amended Complaint.











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75. Sony Pictures denies the allegation in the first sentence of Paragraph 75 and denies


alleged in the Second Amended Complaint. Sony Pictures is without knowledge or information

sufficient to form a belief as to the truth or falsity of the remaining allegations in Paragraph 75,


76. Sony Pictures denies the allegation in the first sentence in Paragraph 76 that there

were “conspiring studios” and denies any allegation that it participated in any non-solicitation or



remaining allegations in Paragraph 76, and on that basis denies them. Sony Pictures is without


footnote 2 to Paragraph 76, and on that basis denies them.




that there was an “anti-solicitation scheme” and denies any allegation that it participated in any

non-solicitation or compensation-fixing agreement as alleged in the Second Amended Complaint.





80. Sony Pictures denies the allegations in Paragraph 80. Sony Pictures is without


footnote 3, preceding Paragraph 80, and on that basis denies them.


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85. Sony Pictures denies the allegations in the first sentence Paragraph 85, denies the

allegation in the third sentence of Paragraph 85 that there was a “conspiracy,” and denies any




basis denies them.




admits that from time to time it participated in compensation surveys conducted by Wayne

Dunlap or the Croner Company to achieve its legitimate business objectives. Except as expressly

admitted, Sony Pictures denies the remaining allegations in Paragraph 87.


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admits that human resources personnel attended meetings for compensation surveys to achieve its

legitimate business objectives. Except as expressly admitted, Sony Pictures is without knowledge

or information sufficient to form a belief as to the truth or falsity of the remaining allegations in




agreement as alleged in the Second Amended Complaint. Sony Pictures admits that a document

exists that includes the language quoted in the second sentence in Paragraph 89, but the language


interpretation or characterization of the document. Sony Pictures is without knowledge or

information sufficient to form a belief as to the truth or falsity of the allegations in the third









admits that from time to time its employees attended a Siggraph conference to achieve its

legitimate business objectives. Except as expressly admitted, Sony Pictures denies the remaining

allegations in Paragraph 91.





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100. Sony Pictures denies the allegation in Paragraph 100 that it had “collusive”

discussions with DreamWorks and denies any allegation that it participated in any non-







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admits that a document exists that includes the language quoted in Paragraph 103, but the

language quoted is only an excerpt from the document. Sony Pictures denies any out of context

interpretation or characterization of the document. Except as expressly admitted, Sony Pictures

denies the remaining allegations in Paragraph 103.






interpretation or characterization of the document. Except as expressly admitted, Sony Pictures

denies the remaining allegations in Paragraph 105.












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111. Sony Pictures Imageworks denies any allegation that it participated in any non-


Sony Pictures admits that a document exists that includes the language quoted in Paragraph 111,

but the language quoted is only an excerpt from the document. Sony Pictures denies any out of

context interpretation or characterization of the document. Except as expressly admitted, Sony

Pictures denies the remaining allegations in Paragraph 111.




as alleged in the Second Amended Complaint. Sony Pictures admits that a document exists that

includes the language quoted in Paragraph 113, but the language quoted is only an excerpt from

the document. Sony Pictures denies any out of context interpretation or characterization of the

document. Except as expressly admitted, Sony Pictures denies the remaining allegations in

Paragraph 113.





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admits that the number of its employees varied over time based on the requirements of its

business. Except as expressly admitted, Sony Pictures denies the remaining allegations in

Paragraph 115.

116. Sony Pictures admits that the United States Department of Justice investigated

recruiting practices at several companies, and that the DOJ closed its investigation as to Sony

Pictures without taking any action. Sony Pictures admits that a document exists that includes the

language quoted in Paragraph 116, but the language quoted is only an excerpt from the document.

Sony Pictures denies any out of context interpretation or characterization of the document.

Except as expressly admitted, Sony Pictures is without knowledge or information sufficient to

form a belief as to the truth or falsity of the remaining allegations in Paragraph 116, and on that

basis denies them.





interpretation or characterization of the document. Except as expressly admitted, Sony Pictures is





admits that the DOJ filed complaints and stipulated proposed final judgments with respect to

Pixar and Lucasfilm. Sony Pictures admits that a document exists that includes the language

quoted in Paragraph 118, but the language quoted is only an excerpt from the document. Sony

Pictures denies any out of context interpretation or characterization of the document. Except as

expressly admitted, Sony Pictures is without knowledge or information sufficient to form a belief

as to the truth or falsity of the allegations in Paragraph 118, and on that basis denies them.




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admits the allegations in the first sentence in Paragraph 119. Except as expressly admitted, Sony



VI. HARM TO COMPETITION AND ANTITRUST INJURY


121. Sony Pictures denies the allegations in the first two sentences of Paragraph 121


agreement as alleged in the Second Amended Complaint. The allegations in the last two

sentences of paragraph 121 are vague and ambiguous and therefore no response is required. To

the extent they require a response, Sony Pictures states that the allegations in the last two

sentences of paragraph 121 purport to describe certain matters without alleging facts particularly


accurate statement of such matters generally or as they relate to Sony Pictures. To the extent the

allegations in the last two sentences of paragraph 121 require a further response, Sony Pictures is


allegations, and on that basis denies them.






allegations in paragraph 122 require a further response, Sony Pictures is without knowledge or

information sufficient to form a belief as to the truth or falsity of the allegations, and on that basis

denies them.

123. Sony Pictures denies the allegations in paragraph 123.

124. Sony Pictures denies the allegations in paragraph 124.

125. Sony Pictures denies the allegations in the first sentence of Paragraph 125, denies

the allegation in the second sentence of Paragraph 125 that there was an anti-solicitation scheme,


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agreement as alleged in the Second Amended Complaint. To the extent the allegations in the last

four sentences of Paragraph 125 concern Sony Pictures, Sony Pictures denies them. To the extent

the allegations in the last four sentences of Paragraph 125 concern defendants other than Sony

Pictures, Sony Pictures is without knowledge or information sufficient to form a belief as to the

truth or falsity of such allegations, and on that basis denies them.



compensation-fixing agreement as alleged in the Second Amended Complaint. To the extent the

allegations in Paragraph 126 concern Sony Pictures, Sony Pictures denies them. To the extent the

allegations in Paragraph 126 concern defendants other than Sony Pictures, Sony Pictures is

without knowledge or information sufficient to form a belief as to the truth or falsity of such



128. Sony Pictures denies the allegations in first sentence of Paragraph 128 and denies


alleged in the Second Amended Complaint. The allegations in the last three sentences of

paragraph 128 are vague and ambiguous and therefore no response is required. To the extent they

require a response, Sony Pictures states that the allegations in the last three sentences of

paragraph 128 purport to describe certain matters without alleging facts particularly pertaining to

Sony Pictures. Sony Pictures denies that the allegations set forth a complete and accurate

statement of such matters generally or as they relate to Sony Pictures. To the extent the

allegations in paragraph 128 require a further response, Sony Pictures denies them.






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denies them.


VII. STATUTE OF LIMITATIONS







compensation-fixing agreement or concealment as alleged in the Second Amended Complaint.







140. Sony Pictures denies the allegations in the first and third sentences of Paragraph


agreement or concealment as alleged in the Second Amended Complaint. Sony Pictures is


allegations in the second sentence of Paragraph 140, and on that basis denies them.


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141. Sony Pictures denies the allegation in the first sentence of paragraph 141 that there

was a no-poaching agreement and denies any allegation that it participated in any non-solicitation

or compensation-fixing agreement or concealment as alleged in the Second Amended Complaint.













To the extent the allegations in Paragraph 146 concern Sony Pictures, Sony Pictures denies them.

To the extent the allegations in Paragraph 146 concern defendants other than Sony Pictures, Sony


such allegations, and on that basis denies them.











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158. Paragraph 158 consists of legal contentions and conclusions that do not require a

response. To the extent a response is required, Sony Pictures denies any allegation that it

participated in any non-solicitation or compensation-fixing agreement or concealment as alleged

in the Second Amended Complaint and otherwise states that it is without knowledge or


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To the extent the remaining allegations in Paragraph 165 concern Sony Pictures, Sony Pictures

denies them. To the extent the remaining allegations in Paragraph 165 concern defendants other

than Sony Pictures, Sony Pictures is without knowledge or information sufficient to form a belief

as to the truth or falsity of such allegations, and on that basis denies them.
























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171. Sony Pictures was not a party in the High-Tech Litigation. Sony Pictures is



172. Sony Pictures was not a party in the High-Tech Litigation. To the extent the

















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186. Sony Pictures denies the allegations in the third and fourth sentences of Paragraph


agreement or concealment as alleged in the Second Amended Complaint. Sony Pictures is


allegations in the first and second sentences Paragraph 186, and on that basis denies them.





188. Sony Pictures denies the allegations in the third sentence of Paragraph 188 and


or concealment as alleged in the Second Amended Complaint. Sony Pictures is without


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knowledge or information sufficient to form a belief as to the truth or falsity of the remaining




response. To the extent a response is required, Sony Pictures denies the allegations in Paragraph

190.

VIII. INTERSTATE COMMERCE

191. To the extent the allegations in Paragraph 191 concern Sony Pictures, Sony

Pictures admits the during the period defined in the Second Amended Complaint as the “Class

Period,” Sony Pictures employed individuals in, among other places, California and New Mexico,

and, except as so expressly admitted, otherwise denies the allegations in Paragraph 191. To the

extent the allegations in Paragraph 191 concern defendants other than Sony Pictures, Sony










denies them.






allegations in paragraph 193 require a further response and concern Sony Pictures, Sony Pictures


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denies them; to the extent they concern defendants other than Sony Pictures, Sony Pictures is





194.

IX. CLASS ALLEGATIONS

195. Paragraph 195 is a contention regarding the purported class that plaintiffs claim to

represent. To the extent a response is required, Sony Pictures admits that plaintiffs purport to

represent a putative class as defined in Paragraph 195 but denies that Plaintiffs’ claims are the

proper subject of class certification.



197. In response to the first sentence of Paragraph 197, Sony Pictures admits that the

class plaintiffs purport to represent as defined in the Second Amended Complaint encompasses

thousands of individuals but denies that there is a “class” that meets the requirements of Rule 23,

Fed. R. Civ. P. The second sentence of Paragraph 197 consists of legal contentions and

conclusions that do not require a response. To the extent a response is required, Sony Pictures

denies the allegations in the second sentence of Paragraph 197.



198.



199.



200.


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201. Paragraph 201, including all its subparts, consists of legal contentions and

conclusions that do not require a response. To the extent a response is required, Sony Pictures

denies the allegations in Paragraph 201, including all its subparts.



202.



203.



204.

CLAIMS FOR RELIEF

X. FIRST CLAIM FOR RELIEF—PER SE VIOLATION OF SECTION ONE OF THE SHERMAN ACT

205. In response to Paragraph 205, Sony Pictures incorporates by reference each of its

preceding responses as if fully set forth herein.




XI. SECOND CLAIM FOR RELIEF—VIOLATION OF THE CARTWRIGHT ACT







212.


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XII. THIRD CLAIM FOR RELIEF—UNFAIR COMPETITION







XIII. PRAYER FOR RELIEF

219. Sony Pictures denies that it has violated any law or regulation and denies that

Plaintiffs are entitled to any relief sought.

XIV. JURY DEMAND AND DESIGNATION OF PLACE OF TRIAL

220. No response to Plaintiffs’ jury demand is required. Sony Pictures reserves all

rights with respect to Plaintiffs’ jury demand.

AFFIRMATIVE DEFENSES

221. Sony Pictures asserts the following affirmative defenses to Plaintiffs’ alleged

causes of action. Insofar as any of the following expresses denial of an element of any claim

alleged against Sony Pictures or other Defendants in this action, such expression does not indicate

that Plaintiffs are relieved of their burden to prove each and every element of any such claim.

FIRST AFFIRMATIVE DEFENSE

222. Plaintiffs’ claims, and the putative class members’ claims, are barred, in whole or

in part, by the doctrines of waiver, settlement, or release.

223. Sony Pictures personnel during the relevant class period released Sony Pictures

from some or all claims arising out of their employment in agreements with Sony Pictures.

224. Sony Pictures personnel during the relevant class period signed agreements that

waived some or all claims against Sony Pictures arising out of their employment.


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225. On information and belief, personnel of one or more Defendants during the

relevant class period entered into agreements releasing one or more Defendants from some or all

claims arising out of their employment.


relevant class period entered into agreements that waived some or all claims arising out of their

employment.

227. On information and belief, personnel of one or more Defendants entered into

settlement agreements, including without limitation the settlement in In re High-Tech Employees

Antitrust Litigation, No. 11-cv-2509 (N.D. Cal.), that bar them from pursuing claims for relief

against or recovering damages, if any, from Sony Pictures.

SECOND AFFIRMATIVE DEFENSE

228. Plaintiffs’ claims, and the putative class members’ claims, are subject to

mandatory binding arbitration.

229. Sony Pictures personnel during the relevant class period entered into agreements

with Sony Pictures agreeing to mandatory binding arbitration for all claims arising out of or

related to their employment with Sony Pictures.


relevant class period entered into agreements agreeing to mandatory binding arbitration for all

claims arising out of or related to their employment.

231. On information and belief, the agreements personnel of one or more Defendants

entered into with one or more Defendants bar individuals who are members of the putative class

from pursuing their claims for relief against Sony Pictures in this forum.

THIRD AFFIRMATIVE DEFENSE

232. Plaintiffs’ claims, and the putative class members’ claims, are barred by the

applicable statutes of limitations. 15 U.S.C. § 15b; Cal. Bus. & Prof. Code §§ 16750.1 & 17208.

233. On September 8, 2014, named Plaintiff Robert Nitsch, purporting to act

individually and on behalf of all others similarly situated, filed the first complaint in this matter


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against Sony Pictures and other defendants. On May 4, 2015, Plaintiffs filed the operative

Second Amended Complaint against Defendants.

234. The injuries alleged in the Second Amended Complaint to Plaintiffs or any

putative class member occurred prior to September 8, 2010, and therefore claims arising out of

any such injury are barred by the applicable statutes of limitations.

FOURTH AFFIRMATIVE DEFENSE

235. Without admitting that Sony Pictures violated any law or that Plaintiffs or the

putative class members are entitled to any relief, Plaintiffs and the putative class members have

failed to mitigate their damages.

236. Plaintiffs and the putative class members had available opportunities for

employment from any Defendant or any relevant non-defendant entities and had available

avenues through which to obtain information about compensation and employment opportunities.

To the extent Plaintiffs and the putative class members failed to pursue such opportunities, they

have failed to mitigate their damages.

FIFTH AFFIRMATIVE DEFENSE

237. Without admitting that Sony Pictures violated any law or that Plaintiffs or the

putative class members are entitled to any relief, Sony Pictures is entitled to set off any amounts

paid to Plaintiffs, or the putative class members, by any Defendants other than Sony Pictures who

have settled, or do settle, Plaintiffs’ claims, or the putative class members’ claims, against them in

this matter, as well as payments made to any Plaintiff, or the putative class members, made as a

result of the settlement in In re High-Tech Employees Antitrust Litigation, No. 11-cv-2509 (N.D.

Cal.).

SIXTH AFFIRMATIVE DEFENSE

238. To the extent Plaintiffs and/or the putative class members also were members of

the settlement classes certified in In re High-Tech Employees Antitrust Litigation, No. 11-cv-2509

(N.D. Cal.), they are barred by the doctrines of judicial, collateral, or other estoppel from

asserting any theory of damages or liability that contradicts the theories asserted in In re High-

Tech Employees Antitrust Litigation, No. 11-cv-2509 (N.D. Cal.).


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SEVENTH AFFIRMATIVE DEFENSE

239. Plaintiffs’ claims and those of putative class members are barred, in whole or in

part, by the doctrine of laches.

240. Plaintiffs unreasonably delayed the filing and service of the Second Amended

Complaint (and preceding complaints) and their notification to Sony Pictures of their bases for

the causes of action alleged against Sony Pictures.

241. Plaintiffs’ unreasonable delay in bringing this suit has unduly and severely

prejudiced Sony Pictures in its defense of this action. As a result of plaintiffs’ delay, time has

passed, percipient witnesses with knowledge of Sony Pictures’ alleged employment practices

have left their employment at Sony Pictures and are no longer available to Sony Pictures,

memories of witnesses have faded, and other evidence supporting Sony Pictures’ defenses in this

case may have been lost.

EIGHTH AFFIRMATIVE DEFENSE

242. Plaintiffs’ claims and those of putative class members are barred, in whole or in

part, by the doctrine of waiver.

243. Some Sony Pictures personnel during the relevant class period were subject to

collective bargaining agreements that compel the timely use of grievance procedures to resolve

certain claims arising out of employment.

244. On information and belief, some personnel of one of more Defendants during the

relevant class period were subject to collective bargaining agreements that compel the timely use

of grievance procedures to resolve certain claims arising out of employment.

245. On information and belief, the claims asserted here by personnel of one of more

Defendants during the relevant class period fall within the scope of the mandatory grievance

procedure to which these personnel were subject.


relevant class period who were obligated to invoke mandatory grievance procedures to resolve the

claims asserted here have failed to do so.


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relevant class period have waived the claims asserted here by failing to invoke the mandatory

grievance procedures provided for by the collective bargaining agreement to which they are

subject to resolve those claims.

NINTH AFFIRMATIVE DEFENSE

248. Sony Pictures hereby gives notice that it intends to rely upon any other defense

that may become available or appear during discovery and any defense asserted by any other

Defendant. Sony Pictures reserves the right to amend its Answer to assert any such defenses.

PRAYER FOR RELIEF

Sony Pictures prays for relief as follows:

1. That this lawsuit be dismissed with prejudice;

2. That no class action be permitted or certified;

3. That Plaintiffs’ and putative class members’ claims be sent to arbitration;

4. For attorneys’ fees and costs as may be permitted by law; and

5. For such other and further relief as this Court deems just and proper.

JURY DEMAND

Sony Pictures demands a jury for all issues triable to a jury.

Dated: September 17, 2015

ORRICK, HERRINGTON & SUTCLIFFE LLP

By: /s/ David M. Goldstein DAVID M. GOLDSTEIN Attorneys for Defendants

Sony Pictures Animation Inc. and Sony Pictures Imageworks Inc.


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