DOUGLAS FONTAINE EDUCATION MBA, (Masters in Business Administration), Walter A. Haas School of Business, University of California at Berkeley

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1 DOUGLAS FONTAINE OFFICE: Compass Lexecon 1111 Broadway Street, Suite 1500 Oakland, CA (510) direct (510) fax EDUCATION 1987 B.S., Business Administration, University of California at Berkeley 1993 MBA, (Masters in Business Administration), Walter A. Haas School of Business, University of California at Berkeley PROFESSIONAL EXPERIENCE 2013 Executive Vice President Compass Lexecon 2009 Senior Vice President and Managing Director Compass Lexecon 2006 Managing Director - Competition Policy Associates 2004 Senior Consultant - Competition Policy Associates Inc Partner - AES Consulting, LLC 1997 Managing Consultant, LECG, Inc Managing Consultant, The Tilden Group 1993 Senior Economist, LECG Inc Research Analyst/Associate, EconomInc

2 TESTIMONY Muze, Inc. v. Alliance Entertainment Corp., et al, No RSWL (CWx) (N.D. Cal.) Ronald L. Jones, et al., v. Hewlett-Packard Company, No (Sup. Ct. CA) SELECTED CONSULTING EXPERIENCE Antitrust For 33 state attorneys general, conducted a review of the claim that Apple and the largest U.S. book publishers agreed to elevate prices for electronic books. Central to the assignment was the most favored nations (MFN) clause included in each agreement between Apple and individual book publishers, and how the MFN clause plausibly could have served as a mechanism to coordinate the conduct of book publishers, in particular with respect to the renegotiation of their contracts with Amazon. The district court found that Apple conspired with the publishers to raise e-book prices. For Live Nation (formerly Clear Channel Entertainment), examined allegations that the company had engaged in various practices, including vertical foreclosure and predatory overbidding, to foreclose competition in the putative market for the promotion of live rock concerts. The key elements of the work were a demonstration that the relevant market alleged by Plaintiffs was inconsistent with sound economics and the evidence, analyses of concert ticket pricing data that showed Live Nation s prices were often lower than those charged by rival promoters, and a demonstration that the damages models put forward by Plaintiffs expert were woefully incomplete and ultimately were based on an assumption of impact. Much of the testimony of Plaintiffs expert was excluded by the judge and the case was dismissed on summary judgment. For Netflix, analyzed claims brought by a class of Netflix subscribers alleging that Netflix and Wal-Mart entered into an agreement through which Wal-Mart agreed to exit the business of online DVD rentals in exchange for Netflix s agreement not to enter the business of selling new DVDs. Led the preparation of expert reports in opposition to class certification, liability/impact, and damages. Plaintiffs case was dismissed on summary judgment. For Micron, a DRAM manufacturer, assessed allegations that it and several other DRAM suppliers devised and implemented a boycott to preclude the adoption of RDRAM, a proprietary DRAM technology developed by Rambus, Inc. Central to the analysis was an evaluation of the specific collusive actions alleged by Rambus and whether these actions were consistent with cartel theory and with pricing data and other relevant evidence. The case concluded with a jury trial and a verdict in Micron s favor. For Apple and AT&T Mobility, analyzed claims brought by a class of iphone purchasers centered on the contention that they were misled as to their ability to switch to another cellular carrier (in particular T-Mobile), and that as a result they overpaid for cellular service for their iphones. Led the preparation of an expert report in opposition to class certification that focused on the economics of systems-level competition and a detailed examination of cellular service prices charged by T-Mobile and AT&T.

3 For several DRAM manufacturers, assessed the competitive effects of conduct undertaken by Rambus while a member of a JEDEC subcommittee tasked with formulating DRAM standards. Principle assignments included the delineation of the relevant markets, an assessment of Rambus market power prior to and following the promulgation of the relevant standards, and an analysis of the standards setting process at JEDEC and the impact of Rambus actions on members decision-making. For Micron, a DRAM manufacturer, analyzed a claim that it had formed an agreement with other major DRAM suppliers to boycott the use of a packaging technology developed by Tessera. The focus of the work was on demonstrating that Micron selected an alternative, in-house solution for reasons consistent with its economic self-interest. For American Honda and Honda Canada, assessed an allegation that the two entities, along with other automobile manufacturers, reached an agreement to implement policies to restrict the exportation of new vehicles from Canada into the U.S. Developed a series of analyses to demonstrate that the disputed policies of American Honda and Honda Canada were consistent with each company s independent economic interests. For motion picture distributors Sony and Paramount, examined claims that each had reached an agreement with motion picture exhibitors to foreclose competition from an independent theatre operating in the Lower Manhattan area of New York. Plaintiffs asserted that the supposed agreements were designed to limit, if not eliminate, their ability to license top grossing motion pictures, in favor of the Defendant exhibitors theatres located in the pertinent film zone. For Monsanto, assessed allegations that the company s joint marketing and sales agreement with Scotts represented an attempt to monopolize the putative market for non-selective herbicides (NSH), under both sections 1 and 2 of the Sherman Act. Prior to the formation of the Monsanto/Scotts venture, Scotts had acquired from the plaintiff the exclusive right to market plaintiff s NSH, and under that agreement, plaintiff was to receive royalties and other payments. According to plaintiff, Scotts and Monsanto reached an agreement whereby Scotts would divest to an ineffective competitor its rights pertaining to the plaintiff s NSH. For Barnes & Noble, analyzed plaintiff s allegations that Barnes & Noble and other superstore defendants induced and received from book publishers various categories of discounts in violation of 2(a) and 2(f) of the Robinson-Patman Act. According to plaintiff, because these same discounts were unavailable to plaintiff and other independent book retailers, Barnes & Noble was able to price its books, and engage in a variety of activities, that injured competition and adversely impacted plaintiff s business. For Gemstar-TV Guide International, evaluated patent misuse claims brought by set-top box (STB) manufacturers as a defense in an ITC Section 337 proceeding. According to the STB manufacturers, Gemstar s licensing practices included tying, package licensing, grantbacks and other activities that suppressed competition in interactive program guide technology and related applications.

4 For American Airlines, evaluated plaintiffs' claims of price and non-price predation and prepared economic analyses detailing the company's pricing, yield management and capacity planning models and decision-making. For Vysis, a genomic disease management company, evaluated the competitive effects of the company's licensing practices with regard to DNA probe patents and related fluorescent in-situ hybridization (FISH) techniques. Created a presentation made to the Department of Energy demonstrating that Vysis licensing practices were conducive to the widespread dissemination and adoption of the FISH technology. For several durable goods manufacturers, including Eastman Kodak, Rolm Corporation, Siemens Medical Systems, and Hewlett-Packard, prepared economic analyses rebutting plaintiffs monopolization and tying claims related to various putative aftermarkets. The HP and Kodak cases also involved preparing reports in opposition to class certification. Mergers/Joint Ventures For cinema advertising companies National CineMedia and Screenvision, examined whether their proposed merger likely would engender competitive harm in either of the markets in which they operate: (i) as sellers of advertising, and (ii) as purchasers of access to theatre owners screens. In the advertising marketplace, analyses focused on demonstrating that the relevant market should not be delineated narrowly to include cinema advertising only, but rather properly was defined to include other forms of video advertising, namely television (broadcast and cable) and digital (online and mobile). With respect to the purchase of screen access, work centered on a demonstration that the merger would not provide the parties with a material increase in bargaining power vis-à-vis theatre owners. The parties abandoned their plans to merge in March For Sony ATV (the music publishing division), analyzed the likely competitive effects that would result from its acquisition of EMI s music publishing division. In particular, examined the combined entity s publishing rights from a number of angles, including category of rights, customer size, and customer usage, to assess whether post-merger the company reasonably could exercise market power to the detriment of licensees. The FTC cleared the transaction in June For Yahoo!, assessed the likely effects on competition arising from a proposed acquisition of Yahoo! s online job search and recruiting business, Hotjobs, by Monster. A key element of the analysis was to consider the merger s likely impact in light of the two-sided market in which the parties operated the sale of job postings and other services to employers and the resume postings and job searches by prospective employees. For PolyGram Holding and Warner Music Group, evaluated the competitive effects of a joint venture agreement and related moratorium on pricing and advertising entered into between the parties. The joint venture agreement was established to facilitate the production of the 1998 Three Tenors concert in Paris and the resulting album and video products. The moratorium was designed to limit the parties ability to aggressively discount and promote prior Three Tenors catalog during the ten-week period immediately following the release of the new album.

5 For Universal Music, prepared an economic assessment of the notified merger between AOL and Time Warner, and the related joint ventures between Time Warner and EMI, dealing with the online promotion and distribution of music, music compression standards, and possible leveraging strategies in internet services. For Movies.com, a proposed joint venture between the Walt Disney Company and Fox Entertainment Group, Inc., prepared sections of a white paper submitted to the DOJ assessing the efficiencies generated by the integration and the inability of the venture to behave anticompetitively in distributing their films via the video-on-demand. For Cadence Design Systems, assessed the competitive effects of its proposed merger with CCT, a developer of place and route software technologies. Intellectual Property/Damages For Carpenter Technology Corporation, a supplier of wrought and powdered metals, evaluated and critiqued the lost profits damage model submitted by plaintiffs. Conducted numerous analyses to demonstrate the conceptual and mechanical flaws undermining the model s reliability and reasonableness. For Skanska AB, a construction conglomerate, responded to damages claims arising from its supposed breach of an agreement to jointly acquire, with Petitioner, an Argentinean construction firm. Developed arguments and analyses supporting the view that Petitioner s claims were properly assessed under the loss of chance theory of damages. For a biotechnology firm, prepared estimates of price erosion due to plaintiff's breach of a licensing agreement and sales to non-authorized retail channels. For a real estate partnership, constructed a lost profits analysis based upon an inability to develop and operate a medical office building in Evanston, Illinois. For Norwest Bank of Iowa, rebutted plaintiff s lost profits claims based upon the alleged inability to develop a wireless refueling and engine diagnostic application. For GTE Cellular, rebutted plaintiffs comparable transactions damages analysis in a dispute over the transfer of a cellular franchise into an existing partnership. For an independent energy wholesaler, prepared a damages analysis related to PG&E s failure to abide by the terms of an existing purchase contract. For a bio-pharmaceutical company, estimated the lost profits owed as a result of defendant s infringement of a patented transdermal estrogen replacement therapy. Policy/International Trade For SoundExchange, an organization that represents record labels in various channels of digital music distribution, developed alternative benchmark methodologies to determine a range of

6 rates, consistent with the relevant statutory objectives, that digital service providers should pay to copyright holders for the right to transmit sound recordings to satellite radio subscribers. Projects for SoundExchange have related to proceedings involving satellite radio and webcasting. For the Canadian Lumber Trade Alliance, examined the impact on the competitive conditions facing Canadian firms as a result of implementation of the Continued Dumping and Subsidy Offset Act (CDSOA, or the Byrd Amendment ). Under the CDSOA, antidumping and countervailing duties imposed and collected on imports from Canada are distributed to qualifying U.S. firms that compete directly with the Canadian enterprises upon which the duties were assessed. Analyses performed focused on whether these distributions to qualifying U.S. firms likely would strengthen the competitive abilities of U.S. recipients and thereby inflict economic injury on their Canadian counterparts. For Universal Music, assessed the competitive effects of certain terms and provisions in the Standard Contract between Bureau Internationale des Sociétés Gérant les Droits d Enregistrement et de Reproduction Méchanique (BIEM) and International Federation of the Phonographic Industry (IFPI) in light of then prevailing marketplace conditions facing the music industry. In addition, considered whether competition, the overall efficiency of the music industry, and consumer welfare would benefit from certain changes to the Standard Contract. For Protect America, co-authored a white paper that assessed the economic efficiencies engendered by proposed legislation to establish a formal system of national catastrophe insurance.