Case No. 64594

IN THE SUPREME COURT OF THE STATE OF NEVADA

LAS VEGAS SANDS CORP.,

-against-

Appellant,

RICHARD SUEN and ROUND SQUARE COMPANY LIMITED,

Respondents.

Appeal from the Eighth Judicial District CourtClark County, Nevada

Judge Rob Bare, Case No. A493744

APPELLANT’S OPENING BRIEF ON APPEAL

MORRIS LAW GROUPSteve Morris, Bar No. 1543Rosa Solis-Rainey, Bar No. 7921900 Bank of America Plaza300 South Fourth StreetLas Vegas, Nevada 89101Telephone: (702) 474-9400Facsimile: (702) 474-9422

ROBBINS, RUSSELL, ENGLERTORSECK, UNTEREINER & SAUBERLLPRichard A. Sauber, (pro hac vice)Jennifer S. Windom, (pro hac vice)Sue Chen, (pro hac vice)1801 K. Street, N.W., Suite 411-LWashington, D.C. 20006

Electronically FiledJun 16 2014 10:30 a.m.Tracie K. LindemanClerk of Supreme Court

Docket 64594 Document 2014-19696

RULE 26.1 DISCLOSURE

The undersigned counsel of record certifies that the following are

persons and entities as described in Nev. R. App. P. 26.1(a), and must be

disclosed. These representations are made in order that the judges of this

Court may evaluate possible disqualification or recusal.

Appellant Las Vegas Sands Corp. (“LVSC”) is a publicly-traded

Nevada corporation.

The following law firms, or unaffiliated attorney, have appeared on

LVSC’s behalf in the district court and/or before this Court:

Holland & Hart, LLPRobbins, Russell, Englert Orseck, Untereiner & Sauber LLPAlan M. Dershowitz (Professor at Harvard University)Morris Law Group

MORRIS LAW GROUP

By: /S/ STEVE MORRISSteve Morris, Bar No. 1543Rosa Solis-Rainey, Bar No. 7921900 Bank of America Plaza300 South Fourth StreetLas Vegas, Nevada 89101

TABLE OF CONTENTS

PAGE NO.:

JURISDICTIONAL STATEMENT 1INTRODUCTION 1ISSUES PRESENTED FOR REVIEW 1STATEMENT OF THE CASE 3

A. The Parties 3B. Macau’s Public Tender Process 4C. The July 2001 Beijing Meetings 6D. The Parties’ Subsequent Discussions 7E. The First Trial 11F. This Court’s Order (Suen I) 12G. The Second Trial 13

1. Standing 132. Causation 13

3. LVSC’s Rule 50 Motion 154. Jury Instructions 155. Verdict and Judgment 15

SUMMARY OF ARGUMENT 16

ARGUMENT 18

ROUND SQUARE COULD NOT PURSUE A QUANTUMMERUIT CLAIM ON REMAND 18

II. ROUND SQUARE FAILED TO ESTABLISH STANDING FORTHE QUANTUM MERUIT CLAIM 21

A. Round Square Failed To Prove That It Sustained AnyDirect Injury As A Corporation 22

B. Round Square Does Not Have Standing To Recover OnBehalf OfOthers 25

C. Round Square Did Not Satisfy This Court’s ConditionsFor Standing To Recover On Behalf Of Others 27

D. In The Alternative, LVSC Is Entitled To A New Trial OnStanding 28

III. ROUND SQUARE’S QUANTUM MERUIT JUDGMENT OF$100 MILLION IS NOT BASED ON SUBSTANTIALEVIDENCE 29

A. Round Square Presented No Substantial Evidence that ItConferred a Benefit on LVSC 30

1

B. The Evidence Did Not Support a Quantum MeruitJudgment of $100 Million 32

IV. THE DISTRICT COURT FAILED TO PROPERLY INSTRUCTTHE JURY ON QUANTUM MERUIT 33A. The District Court Failed to Properly Instruct the Jury On

The Elements Of Quantum Meruit 33B. The District Court Improperly Instructed the Jury on the

Measure of Quantum Meruit Recovery 35V. THE DISTRICT COURT ERRED IN ADMITTING HEARSAY

AND IMPROPER “EXPERT” TESTIMONY ON THECAUSATION ISSUE 39A. The Court Erroneously Allowed Plaintiffs To Use

Hearsay As “Evidence’ Of Causation 39B. The District Court Erroneously Admitted “Expert”

Testimony 44VI. OTHER ERRORS PREJUDICED LVSC’S RIGHT TO A FAIR

TRIAL 47A. LVSC Was Prejudiced by the Presence of A Biased Juror 47B. The Court’s Bolstering of Plaintiffs’ Case Before the Jury

Severely Prejudiced LVSC 48CONCLUSION 50CERTIFICATE OF COMPLIANCE 51

11

TABLE OF AUTHORITIES

Cases

ACTOnet, Ltd. v. Allou Health & Beauty Care,219 F.3d 836 (8th Cir. 2000) 43

Advocare Int’l LP v. Horizon Labs., Inc.,524 F.3d 679 (5th Cir. 2008) 21

Amerisource Corp. v. RxUSA Int’l, Inc.,2009 WL 235648 (E.D.N.Y. Jan. 30, 2009) 41

Argentena Consol. Mining Co. V. Jolley Urga Wirth Woodbury & Standish,125 Nev. 527, P.3d 779 (2009) 37

Asphalt Products Corp. v. All Star Ready Mix, Inc.,111 Nev. 799, 898 P.2d 699 (1995) 37

Atkinson v. MGM Grand Hotel, Inc.,120 Nev. 639, 98 P.3d 678 (2004) 33

Atsa, Inc. v. Continental Ins. Co.,754 F.2d 1394 (9th Cir. 1985) 20

Bano v. Union Carbide Corp.,316 F.3d 696 (2d Cir. 2004) 27

Barrack v. Falck,11 F.3d 729 (7th Cir. 1993) 19

Belk, Inc. v. Meyer Corp.,679 F.3d 146 (4th Cir. 2012) 21

Braswell v. U.S.,487 U.S. 99 (1988) 22,25

Certified Fire Protection, Inc. v. Precision Construction, Inc.,283 P.3d 250 (Nev. 2012) 30, 32,34, 37

Chemetall GMBH v. ZR Energy, Inc.,320 F.3d 714 (7th Cir. 2003) 21

Crowley v. State,120 Nev. 30, 83 P.3d 282 (2004) 39

111

Dawson v. Withycombe,163 P.3d 1034 (Ariz. Ct. App. 2007) 32

Edwards v. Carson Water Co.,21 Nev. 469, 34 P. 381 (1893) 22

Friends of the Earth, Inc. v. Laidlaw Environ. Serv., Inc.,528 U.S. 167 (2000) 26

General Universal Sys., Inc. v. HAL, Inc.,500 F.3d 444 (5th Cir. 2007) 19, 20

Ginnis v. Mapes Hotel Corp.,86 Nev. 408, 470 P.2d 135 (1970) 43,49

Glegola v. State,110 Nev. 344, 871 P.2d 950 (1994) 49

Gordon v. Stewart,74 Nev. 115, 324 P.2d 234 (1958) 37

Hallmark v. Eldridge,124 Nev. 492, 189 P.3d 646 (2008) 39, 44,45

Litman v. Massachusetts Mut. Life Ins. Co.,825 F.2d 1506 (11th Cir. 1987) 20

Lujan v. Defenders of Wildlife,504 U.S. 555 (1992) 22

Maglica v. Maglica,66 Cal. App. 4th 442, 78 Cal. Rptr. 2d 101 (1998) 37

McNally v. Walkowski,85 Nev. 696, 462 P.2d 1016 (1969) 47

People v. Lew, 69 Cal. Rptr. 102, 105 (Cal. 1968) 42

Prabhu v. Levine,112 Nev. 1538, 930 P.2d 103 (1996) 30

Romy Hammes, Inc. v. McNeil Construction Co.,91 Nev. 130, 532 P.2d 263 (1975) 22

Sierra Foods v. Williams,lO7Nev. 574, 816 P.2d466 (1991) 33

iv

U.S. v. Azure,801 F.2d 336 (8th Cir. 1986) 46

U.S. v. Connell,6 F.3d 27 (1st Cir. 1993) 19, 20

United States v. Bell,988 F.2d 247 (1st Cir.1993) 19

Valentine v. Pioneer Chior Alkali Co.,921 F. Supp. 666 (D. Nev. 1996) 45, 46

Warth v. Seldin,422 U.S. 490 (1975) 25, 26

Williamsburg Wax Museum v. Historic Figures, Inc.,810 F.2d 243 (D.C. Cir. 1987) 18

Wilson v. Circus Circus Hotels, Inc.,101 Nev. 751, 710 P.2d 77 (1985) 32

Rules

NRAP 3A(b)(1)-(2) 1

NRCP 17(a) 24, 26

NRCP19 27

Statutes

NRS2.090 1

NRS51.105(1) 41

Other Authorities

Restatement (Third) of Restitution & Unjust Enrichment § 49 cmt. f (2011) 37

Third Restatement § 31 cmt. e 37

V

JURISDICTIONAL STATEMENT

This Court has appellate jurisdiction under NRS 2.090 and NRAP

3A(b)(1)-(2). The district court initially entered judgment on May 28, 2013.

JA7883-84. Defendant Las Vegas Sands Corp. (“LVSC”) timely filed a post-

trial motion under Rules 50 and 59 on June 7, 2013. JA8664-65. The district

court denied LVSC’s motion on November 12, 2013 (JA11676-82), and

entered an Amended Judgment on December 4, 2013 (JA11693-95). LVSC

timely filed its notice of appeal on December 6, 2013. JA11702-04.

INTRODUCTION

LVSC appeals a $100 million judgment in favor of a dormant foreign

entity. The judgment is based on a legal theory that the foreign entity had

waived in a prior appeal to this Court. The instant appeal is limited to that

waiver, the foreign entity’s failure to establish standing and to present

sufficient, admissible evidence in support of the judgment, and the district

court’s errors in instructing the jury on the elements of the purported claim

and in commenting on the evidence in the presence of the jury, which

unfairly prejudiced LVSC and favored the Plaintiffs.

ISSUES PRESENTED FOR REVIEW

In this case, a “dormant” corporation having no full-time employees

or documented business operations obtained a $100 million judgment for

allegedly arranging two meetings with Chinese officials that purportedly

caused the government of Macau to issue a gaming “subconcession” to

LVSC. The corporation—Round Square Corporation Ltd. (“Round

Square”)—received this massive recovery even though the individuals who

allegedly conceived and set up the meetings had no legal relationship with

1

Round Square, and even though Round Square expended no corporate

resources in assisting LVSC.

This verdict followed an earlier appeal in which the Court reversed a

judgment in favor of co-Plaintiff Richard Suen on the grounds that (1) the

district court improperly admitted hearsay purporting to establish a link

between the Beijing meetings and Macau’s award of the gaming

subconcession to LVSC; and (2) the district court improperly refused to

give jury instructions concerning the presumptions of lawful and regular

government actions. JA477-94. The Court held that on remand Suen and

Round Square could pursue their express contract claims and that Suen

could pursue his quantum meruit claim. JA482, 489-91.

On remand, the jury rejected both Plaintiffs’ express contract claims

and Suen’s quantum meruit claim. However, the jury found for Round

Square in quantum meruit and awarded it $70 million (leading to a

judgment in excess of $100 million) even though Round Square’s quantum

meruit claim had been dismissed before the first trial and Round Square

did not appeal that dismissal. This appeal presents the following issues:

1. Whether LVSC is entitled to judgment, or in the alternative a new

trial, because (a) Round Square waived its quantum meruit claim by failing

to appeal the dismissal of the claim in the first trial; (b) Round Square failed

to prove standing to recover quantum meruit damages based on the efforts

of others; and (c) the evidence was insufficient to support the verdict on

liability and the amount of recovery.

2. Whether LVSC is entitled to a new trial, or to remittitur, because

the district court did not properly instruct the jury on the requirements for

establishing liability and the measure of recovery in a quantum meruit

case.

2

3. Whether LVSC is entitled to a new trial based on the admission of

hearsay statements and improper “expert” testimony that bore on the

critical issue of causation.

4. Whether LVSC is entitled to a new trial because it was prejudiced

by a juror’s bias, and by improper comments the district court made in the

jury’s presence.

STATEMENT OF THE CASE

In December 2002, the government of Macau awarded LVSC a

gaming subconcession after a public tender process established by Macau’s

Legislative Assembly. In this action, Plaintiff Round Square claims that

LVSC owes it more than $100 million for Round Square’s purported role in

arranging some meetings with Chinese officials in Beijing in July 2001,

months before the tender process began. Round Square’s theory is that the

meetings with the Chinese officials (rather than the tender process

established by Macau law) caused Macau to award the subconcession to

LVSC.

A. The Parties

LVSC is a publicly-traded company that owns the Sands Expo and

Convention Center and the Venetian Hotel in Las Vegas. JA1468-69.1

LVSC also indirectly owns a majority share in Venetian Macau Limited,

which operates the Sands Macau and Venetian Macau. JA857-58, JA2968-

69.

When this case began, the lead defendant was called Las Vegas Sands,Inc., and this Court’s 2010 Order referred to “LVSI.” As a result of a publicoffering, LVSI became LVSC. JA849.

3

In July 2000, over a year before Macau began accepting bids for

gaming concessions, LVSCs Chairman Sheldon Adelson met with Hong

Kong businessman Richard Suen. JA859-60. Suen had no experience with

gaming or tourism and no personal relationships with officials in the

Macau or Chinese governments. JA4627-31, 4676. Nevertheless, Suen

claimed that he had “contacts” that might enable him to “deliver” a Macau

gaming concession to LVSC. JA876, 1478.

At the time of the meeting, Suen was a director and 50% owner of

Round Square. JA4598. Suen testified that in 2000 Round Square engaged

in unspecified real estate ventures in China, but he could not describe the

ventures other than to say they were “complicated” (JA1708):

Yeah, we — we sort of sometimes sort of — it’s — it’s useful to have aforeign company to go in and — and try and, you know, negotiatedeals. You know, it’s kind of complicated. You’ve just got thingsto do with, you know, the — the — following your investment, taxbreaks, and all that.

Suen also admitted that Round Square has been “dormant” since at

least 2005 and that it had no full-time employees. JA4602-03. Suen

provided no tax returns, financial statements or other documents to show

that Round Square ever had any actual business operations. Indeed, the

only Round Square documents introduced at trial were a business card and

a few facsimiles purportedly bearing a “Round Square” letterhead. JA1537,

2499, 2849.

B. Macau’s Public Tender Process

Macau is a “Special Administrative Region” or “SAR” of the People’s

Republic of China (“PRC”) that is adjacent to Hong Kong. JA3344. The

Macau Basic Law, a PRC statute, provides that Macau shall have a “high

4

degree of autonomy,” and it forbids the PRC from interfering in the Macau

government except on issues of foreign affairs and national defense.

JA4919-21 arts. 2, 12-14 & 22.

On August 30, 2001, Macau’s Legislative Assembly enacted Law 16-

2001, which established a “public tender” process for the award of

additional gaming “concessions.” JA3185, 3189. Macau’s Chief Executive

Edmund Ho then issued an executive order establishing a “Tender

Commission” comprised of Macau government officials to conduct the

tender process. JA4283-84. The government also issued Regulation 26-

2001, which established procedures for the tender and criteria to evaluate

bids (JA4228-29), and set December 7, 2001 as the deadline for filing bids

(JA4320).

After initially submitting a bid with a Taiwanese bank (JA943), LVSC

parthered with a company called “Galaxy” to bid for a gaming concession

in Macau (JA3339-40, 6325-57). Galaxy, which was backed by two

prominent Hong Kong families, committed to make the largest investment

among the bidders, but had only limited expertise in casino operations.

JA2948, JA6466-67.

On February 7, 2002, after hearing in-person presentations from

bidders and receiving a report from an independent consultant, the Tender

Commission issued its final report which recommended that Wynn

Resorts, Galaxy/LVSC, and Stanley Ho receive “provisional” concessions.

JA4319, 4352. The Macau government adopted the Commission’s

recommendations and then finalized Galaxy’s concession in June 2002,

subject to the caveat that Galaxy and LVSC reach a final agreement for

managing the project within six months. JA2969. When Galaxy and LVSC

were unable to reach an agreement, Galaxy and the Macau government

5

agreed to give LVSC a “subconcession” in December 2002 that allowed

LVSC to build and operate a resort without Galaxy’s involvement. JA1570.

LVSC invested $265 million and opened the Sands Macau resort

casino in early 2003. JA1571-73. After an additional investment totaling

$2.4 billion to reclaim undeveloped land, LVSC opened a second property,

the Venetian Macau, in August 2007. JA1577.

C. The July 2001 Beijing Meetings

In July 2001, Zhu Zhensheng (“Zhu”) and Choi Yuen Yuen (“Choi”)

arranged meetings in Beijing between Adelson, LVSC’s then-president

William Weidner, and several Chinese officials, including the Mayor of

Beijing and Qian Qichen, a PRC Vice Premier with responsibility for

Macau. JA1945-3, 1961-63. Zhu and Choi were not employees,

sub-contractors or agents of Round Square. JA4600-03, JA5573. Rather,

they were just “friends” of Suen, and had no legal ties to the company.

JA5573. Zhu came up with the idea of meeting with PRC officials and Choi

arranged the meetings. JA1948-50, JA5073-82. Suen did not know any of

the Chinese officials. JA4676.

At the meeting with Qian, Adelson shared his interest in bringing

hotels and convention centers to Macau. JA1300. Qian seemed pleased,

but he did not promise LVSC a gaming concession in Macau or suggest

that LVSC would receive any preferential treatment. JA2259-60. To the

contrary, Qian stated that the Basic Law was structured so that Macau had

its own government and would make the determination for itself. Id;

JA3344-45.

Adelson and Weidner also met with the Mayor of Beijing. JA2197-98.

At the time of that meeting, the U.S. House of Representatives was

6

considering a nonbinding resolution opposing Beijing’s bid to host the 2008

Olympic Games. JA2206. Adelson learned that the resolution would not

come up for a vote until after the International Olympic Committee voted

on Beijing’s bid, and informed the Mayor. JA2209.

D. The Parties’ Subsequent Discussions

Prior to the July 2001 meetings in Beijing, the parties had no

discussions about how Suen or his friends would be compensated for their

efforts to help LVSC, although Suen communicated his general desire for

“some form” of agreement on payment. JA1749, 1765. Only after the

Beijing meetings—on July 14, 2001—did Suen suggest for the first time that

he would “get the license for [LVSCJ” in exchange for a “success fee” of $40

million. JA1000, 1005. Suen made clear, however, that he did not consider

the recently-concluded Beijing meetings to be the only task needed to “get

the license.” Rather, Suen proposed a lengthy “bidding plan” in which he

would conduct “market research,” develop a “strategy,” set up a “project

company,” and undertake an extensive lobbying and public relations effort.

JA1003-05. Suen explained that “support from Beijing” would be only one

element of “a successful bid”: LVSC would also need “a knockout

proposal,” “support from Macau” and “solid financing.” JA1001.

In a July 16, 2001 correspondence, Weidner provided “an outline of

the basis upon which we believe we could move forward.” JA994. Before

proceeding with a bid for a “mega-resort,” LVSC asked Suen to set up a

meeting with Edmund Ho, Macau’s Chief Executive, to “confirm that this

proposal is what he needs for Macau.” JA994-95. Weidner also asked Suen

to provide him with a budget for the public relations effort Suen thought

was necessary to secure a concession. Id. Subject to meeting these

7

conditions, Weidner proposed to pay Suen a “success fee” of $5 million and

2% of net profits upon opening the resort. Id.

Despite his claimed contacts in Macau, Suen never arranged the

meeting with Chief Executive Ho that Weidner had established as a

condition for proceeding. JA2039-40. In July and August 2001, Suen

complained that the parties were “almost at a point where we cannot reach

common ground” on Suen’s proposal. JA1835. Suen characterized LVSC as

the “David” of the tender process because it supposedly lacked the size,

financial power, and public support of other bidders, and it did not have

“good references” from Hong Kong, Macau, or the PRC government.

JA2268. He stated that the successful bidder would have to “gain the

support of the local people,” who would in turn “influence the legislative

council” to “recommend the bidder to the chief executive.” JA1837.

Accordingly, Suen again stated that he would need to undertake

significant lobbying and public relations efforts in Macau and Beijing.

JA2269. Suen also insisted that LVSC could not obtain a concession unless

it also invested in projects in Macau and China that were unrelated to

gaming, such as “exhibition centers” and “high tech parks.” JA1838. With

regard to his “success fee,” Suen informed Weidner that a $5 million fixed

portion was “too low” and that he needed clarification concerning the

definition of “net profit.” JA2271.

Weidner eventually told Suen that if he could not “deliver the license

with your contacts and our operating skills and reputation, you should feel

free to ‘seek other partners’ as your letter relates.” JA2264. Suen responded

that he did not believe that LVSC was “interested in working with” his

group, and — “for the sake of proper records” and to let his team know that

the project was “formally terminated” — he requested a very clear

8

confirmation that LVSC “will not be relying on us to help you on the

bidding.” JA2268.

In a last-ditch attempt to salvage an agreement, Suen, Zhu, and Choi

met with Weidner and Adelson in Las Vegas in August 2001. Weidner

agreed to restart the discussions because Suen promised to deliver an

investment partner and said that he had lined up several prospects.

JA2466, 2472-73, 2552. Suen asked for clarification on the level of financing

the investor would need to contribute, and on September 10, 2001, Weidner

responded that LVSC needed an “investor/partner” that could fund all or

at least the bulk of the development. JA996, JA3064, 3130-31.

Weidner also advised that, as he had stated in his July 16, 2001

correspondence, “we would offer your group a cash ‘success fee’ of

$5 million and 2%” of LVSC’s “share of the net profits.” JA996. The parties

did not define Suen’s “group” in their correspondence, but at trial Suen

described it as a group (primarily himself, Zhu, and Choi) who were not

subject to any “legally binding document.” JA5573. Instead they were

simply “friends.” Id.

Suen purported to “accept” Weidner’s “offer” on behalf of Round

Square. JA998. None of Suen’s friends was employed by or otherwise

affiliated with Round Square. JA4600-03. The only person other than Suen

who was associated with Round Square — the other 50% owner, Peggy Li —

told Suen that she wanted nothing to do with the tender process. JA4598.

Despite this purported “acceptance,” the parties continued to discuss

the scope of the work Suen would perform and the circumstances under

which he would receive payment. Suen claimed that LVSC needed a

detailed business plan and complained that he was “unlikely to get any

investor to put up this money” without such a plan. JA2849. Weidner

9

replied that if LVSC directly secured its own equity partner, LVSC would

be open to negotiating “equitable reimbursement” for Suen’s time and

effort, but the “success fee we had discussed earlier would not be

applicable.” JA2508. Suen responded that he was continuing to pursue

potential investors, and did not object to Weidner’s statement that the

“success fee” was contingent on his ability to provide a suitable investor.

JA3082.

On October 19, 2001, Suen delivered LVSC’s preliminary expression

of interest (which was prepared by LVSC, and later superseded by formal

bids) to the Macau government. JA3369. Suen admitted at trial that,

thereafter, neither he nor any of his associates did anything to help LVSC

obtain a concession. JA3505, JA5228-29. In particular, he and his group did

not assist LVSC in preparing its December 2001 formal bid, in making its

January 2002 presentation to the Tender Commission, or in its negotiations

with Galaxy. Id. Nor did he introduce LVSC to any other suitable investor.

JA3175-76.

While LVSC was negotiating with Galaxy and the Macau

government in 2002, Suen pitched alternative ventures to LVSC, including

convention centers in mainland China, but LVSC did not pursue them.

JA3374. Then, in early 2003, after LVSC’s subconcession was granted, Suen

contacted Weidner and requested payment of the “success fee.” JA4132-33.

Weidner refused on the ground that Suen did not earn the fee. JA4133.

When Suen persisted, LVSC offered him a position as a procurement agent

that would pay him a salary plus equity. JA3366-67. Suen refused,

insisting on a guarantee of at least $25 million. JA3368.

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E. The First Trial

Suen and Round Square filed their initial complaint on October 15,

2004. JA1-23. As later amended, the complaint alleged contract, quantum

meruit and fraud claims against LVSC. JA3O-35.2 Before trial, the district

court (Judge Leavitt) granted summary judgment on the fraud claims.

JA50. The court also rejected the express contract claims on the ground

that there was never a valid acceptance: while the alleged ‘offertwas

made to Suen’s “group,” Suen purported to accept on behalf of Round

Square. JA54-55.

The dismissal of the contract and fraud claims left only the quantum

meruit claim. Although the complaint said that “plaintiffs” alleged claims

in quantum meruit, it did not contain any allegations specific to Round

Square. JA34-35. Suen persuaded the trial court that he — and only he —

had standing to assert such a claim. JA57. Thus, the trial court declared

that Round Square “is no longer a party to the lawsuit” (JA63) and Plaintiffs

acknowledged the court’s “ruling that Round Square is out of the case”

(JA81). As Plaintiffs told this Court, the dismissal of their fraud and

contract claims resulted in the “dismiss[al of] plaintiff Round Square from

the action.” JA352.

The remaining quantum meruit claim was then tried to a jury with

Suen as the sole Plaintiff. The jury awarded Suen $43.8 million. JA478.

LVSC appealed, while Suen and Round Square cross-appealed the district

court’s orders granting summary judgment on their contract and fraud

2 The complaint also asserted fraud claims against Adelson and Weidner.JA32-34. The district court granted summary judgment on those claims,and this Court affirmed. JA491-92. Thus, Adelson and Weidner are nolonger defendants.

11

claims. Id. Round Square did not, however, appeal the dismissal of its

own, abandoned quantum meruit claim. See id.

F. This Court’s Order (Suen I)

On November 17, 2010, this Court issued an unpublished opinion

reversing the judgment in Suen’s favor, affirming the district court’s grant

of summary judgment on Plaintiffs’ fraud claims, and reversing the entry

of summary judgment on Plaintiffs’ express contract claims. JA477-94

(“Suen I”). One of the key issues on appeal was whether Suen had standing

to recover in quantum meruit for the efforts of his friends in arranging the

Beijing meetings. Plaintiffs argued that “Suen is the only one with standing

to assert a quantum meruit claim.” JA392; see also JA388. The Court agreed

that Suen could pursue that claim if he could “sufficiently demonstrate his

associates’ efforts and their expected payment,” and further stated that

LVSC would have the right “to inquire into the nature of Suen’s financial

relationship with the members of his group.” JA482.

Causation was another critical issue. At trial, Suen was allowed to

testify that Weidner had told him that casino operator Stanley Ho told

Weidner that unnamed “guys in Beijing” had said “you guys won the bid,

that Olympic thing.” JA485. The Court held that it was an abuse of

discretion to admit this statement, which contained “at least four layers of

hearsay.” JA486-87. That error warranted a new trial because Suen used it

in “attempt[ing} to prove to the jury that the Beijing meetings influenced

the tender process,” and “[w]ithout the hearsay statement, the jury may

have found there was no connection between the Beijing meetings and the

tender process.” JA487. In addition, the Court held that the trial court

12

failed to properly instruct the jury on the presumption of government

regularity. JA488.

As a result of its rulings, the Court remanded the case to the district

court, identifying three claims for a new trial: (i) Suen’s contract claim,

(ii) Round Squares contract claim, and (iii) Suens quantum meruit claim.

JA482, 490-91.

G. The Second Trial

On remand, the case was assigned to Judge Bare. As with the first

trial and appeal, the key issues were standing and causation.

1. Standing

In its ruling on the first appeal, this Court allowed Round Square to

pursue an express contract claim, but did not say that Round Square could

pursue any other claim. JA489-91. At the second trial, Suen reiterated that

the quantum meruit claim belonged to him personally (and only him),

while the express contract claim belonged to Round Square. “On the

contract I’m suing ... based on Round Square Company, Limited. Quantum

meruit, I’m suing — I’m recovering for me and my team.’ JA4603.

2. Causation

Plaintiffs again sought an award based on the “success fee” proposed

by Weidner, which required them to “get the license” for LVSC (along with

an investment partner). JA1000, 1005, JA2508. Suen claimed that the

Beijing meetings had a “direct impact” on LVSC’s ability to obtain the

subconcession. JA4188. He further claimed that he and his associates had

introduced LVSC to the “most important Chinese government officials”

who could influence the outcome of the tender process. JA4169.

13

Plaintiffs presented no testimony to support these claims from any

PRC or Macau official. Suen himself admitted on cross-examination that he

had no direct evidence that the PRC told or even indicated to the Macau

Chief Executive or the Tender Commission whom they should choose.

JA5180-81. Thus, his previous assertion that the Beijing meetings had a

“direct impacf’ on LVSC’s ability to obtain the subconcession (JA4188) was

based on his own “educated guess” as to what had occurred (JA5181).

Before trial, the district court granted LVSC’s motion to exclude

several hearsay statements, acknowledging that the admission of those

statements would be contrary to this Court’s remand order. JA604-05, 621-

22. But the district court later reversed course and, despite LVSC’s

continued objections, allowed Plaintiffs to introduce those same

statements. For example, after Suen admitted that he had no direct

evidence that the Beijing meetings influenced Macau’s decision, the court

allowed Suen to relay a double-hearsay statement on redirect: that

(1) Weidner told Suen that (2) Macau’s Chief Executive Edmund Ho told

Weidner “he [Ho] knows all about” the Beijing meetings. JA5318.

In addition, the court allowed Suen to present Professor James Tong

as an “expert” on Chinese government. JA6776. LVSC objected, and the

court agreed that Tong had no factual basis to “testify about the effect of the

[Beijing] meetings.” JA3549, JA6738, JA6908. Nevertheless, the court

decided that Tong could testify that Macau’s actions during the tender

process were “consistent” with Plaintiffs’ theory about the effect of the

Beijing meetings on the subconcession. Id. Tong went beyond that

limitation, however, when he opined (in response to a juror question) “that

the meetings in Beijing ha[d] an effect on [LVSC] obtaining the license” and

that LVSC received the subconcession “as a result of” the meetings. JA7026.

14

3. LVSC’s Rule 50 Motion

At the close of Plaintiffs’ case, LVSC moved for a directed verdict.

JA7109-20. With regard to Round Square, counsel for LVSC stated his

understanding (given the prior dismissal and Suen’s testimony that only he

was presenting a claim in quantum meruit) that “Round Square is not part

of the quantum meruit claim.” JA7114. Nevertheless, as a precaution,

LVSC moved to dismiss “all of the quantum meruit claims.” JA7120. The

court stated that it was “going to deny all those motions” without seeking

further details and before hearing any argument from Plaintiffs. JA7121.

4. Jury Instructions

LVSC proposed jury instructions on the elements required to

establish a quantum meruit claim and on the measure of recovery. JA7401-

08. The district court, however, refused LVSC’s proposals. In particular,

it refused to instruct the jury that, as a prerequisite to recovery, Plaintiffs

had to show causation: that they “conferred a benefit” on LVSC that was

“attributable” to their efforts. JA7402-03. Meanwhile, with regard to the

measure of recovery, the court instructed the jury that it could consider the

“terms of any offers or proposals” between the parties (JA7875), but

declined to instruct the jury that it could consider the market value of

Plaintiffs’ services (JA7405), even though LVSC had presented unrebutted

evidence that the market value of such services was at most $1 million.

JA3070-71, 3299.

5. Verdict and Judgment.

On May 14, 2013, the jury returned a defense verdict on Suen’s

contract and quantum meruit claims, as well as Round Square’s express

15

contract claim. JA7831. However, the jury awarded $70 million to Round

Square on its quantum meruit claim. Id. LVSC filed a post-trial motion on

numerous grounds, seeking judgment as a matter of law or alternatively a

new trial. JA8664-8726. The district court denied LVSC’s motion (JA11676-

82) and entered judgment for $104,919,704.39, including interest and costs

(JA11693-95). This appeal followed.

SUMMARY OF ARGUMENT

The judgment for Round Square cannot stand as a matter of law for

three independent reasons. First, Round Square failed to appeal the

district court’s dismissal of the claim in the first trial. Under a long line of

decisions, a litigant’s failure to appeal a claim not only waives the claim,

but also operates as a limitation on the trial court’s authority to re-litigate

the issue on remand. This limitation is part of the mandate rule, and it

applies even when the appellate court does not explicitly address the

waived issue in its opinion. Accordingly, when Round Square failed to

appeal the dismissal of its quantum meruit claim in Suen I, it both waived

the claim and barred the district court from entertaining the issue on

remand.

Second, the district court erred as a matter of law in ruling that

Round Square had standing to recover in quantum meruit on behalf of

others. In reaching this result, the district court relied on this Court’s

holding in Suen I that Suen had standing to recover on behalf of his

associates. However, this ruling does not apply to corporations like Round

Square, which are artificial legal entities that can act only through “agents”

under standard principles of agency law. Under these principles, a

corporation cannot recover damages on behalf of individuals who are not

16

its agents. Indeed, the law is clear that an organization like Round Square

cannot recover damages even on behalf of its own members, let alone on

behalf of unrelated parties who are not its agents.

Third, Round Square failed to present any ‘substantial evidence” to

support a recovery of $100 million in quantum meruit based largely, if not

entirely, on the Beijing meetings. This is true not only because the two

individuals who arranged the meetings (Zhu and Choi) were not Round

Square’s agents, but also because Round Square offered no real evidence to

support any of the other factual predicates for its theory of recovery—

namely, that (1) as a result of the Beijing meetings, the Chinese government

preferred LVSC over other bidders; (2) the Chinese government thereafter

communicated its preference for LVSC to Macau officials; and (3) Macau

officials ignored the criteria specified by Macau law and simply did the

bidding of the Chinese government by awarding the subconcession to

LVSC. Indeed, even Suen admitted at trial that he was making an

“educated guess” in claiming that the Beijing meetings caused the Macau

authorities to award the subconcession to LVSC. JA5181. Needless to say,

such speculation and conjecture is insufficient as a matter of law to support

quantum meruit liability, much less liability in excess of $100 million.

Even if judgment as a matter of law were not appropriate, LVSC

would still be entitled to a new trial because of the same issues that led to

the reversal in Suen I—erroneous jury instructions and the improper

admission of hearsay on the critical causation issue. The court’s quantum

meruit instructions omitted the requirement of causation, and failed to

consider the “market value” of Round Square’s services in determining the

amount of any quantum meruit recovery. Further, the district court

improperly allowed Plaintiffs to present (1) several hearsay statements

17

bearing on the critical issue of causation, notwithstanding this Court’s

decision in Suen I; and (2) “expert” testimony that the issuance of the

subconcession was “consistent” with Round Square’s claim that the Beijing

meetings caused Macau to issue the subconcession. Finally, the district

court prejudiced LVSC by failing to excuse a juror with an obvious bias

against LVSC and by making comments before the jury that bolstered

Plaintiffs’ case.

ARGUMENT

I. ROUND SQUARE COULD NOT PURSUE A QUANTUMMERUIT CLAIM ON REMAND.

Round Square has no legal basis to recover in quantum meruit

because it failed to raise that claim in Suen I. Prior to the first trial, the

district court entered summary judgment dismissing Round Square’s fraud

and contract claims, and then dismissed Round Square as a Plaintiff with

respect to all of its claims. JA50, 53-55, 63. Following Round Square’s

dismissal, the case went to trial with Suen as the sole Plaintiff, resulting in a

judgment in Suen’s favor on the quantum meruit claim.

When LVSC appealed the judgment, Suen and Round Square filed a

cross-appeal challenging the dismissal of their fraud and contract claims—

but not challenging the district court’s dismissal of Round Square’s

quantum meruit claim. JA478. Indeed, Plaintiffs affirmatively told this

Court that Suen — and only Suen — had standing to proceed in quantum

meruit. JA388, 392.

By failing to appeal the dismissal of its quantum meruit claim, Round

Square waived the claim. Williamsburg Wax Museum v. Historic Figures, Inc.,

810 F.2d 243, 250 (D.C. Cir. 1987). The courts have repeatedly held that a

“legal decision made at one stage of litigation, unchallenged in a

18

subsequent appeal when the opportunity to do so existed, becomes the law

of the case for future stages of the same litigation, and the parties are

deemed to have waived the right to challenge that decision at a later date.t’

Id. See also General Universal Sys., Inc. v. HAL, Inc., 500 F.3d 444,453-54 (5th

Cir. 2007); Barrack v. Falck, 11 F.3d 729, 730 (7th Cir. 1993); United States v.

Bell, 988 F.2d 247, 250 (1st Cir.1993).

Indeed, the failure to raise an issue on appeal operates to exclude the

issue from the scope of any remand to the trial court. General Universal, 500

F.3d at 454. In such a case, the waived issue is subject to the “mandate rule”

which “compels compliance on remand with the dictates of a superior court

and forecloses re-litigation of issues expressly or impliedly decided by the

appellate court.” Id. at 453. In this way, the “mandate serves as a limitation

on the power of the trial court” by circumscribing the “issues that remain

open on remand.” U.S. v. Connell, 6 F.3d 27,30 (1st Cir. 1993).

For example, in General Universal, the appellate court found that the

plaintiff’s earlier failure to appeal the trial court’s dismissal of its claims

against one group of defendants operated as a waiver of those claims even

though the appellate court’s first opinion did not explicitly address the

issue. 500 F.3d at 453-54. The appellate court further found that its

previous remand to the trial court necessarily excluded the waived claims

so that the trial court did not have the power to hear those claims. Id.

The same conclusion applies here. Because Round Square failed to

appeal the trial court’s dismissal of its quantum meruit claim, the claim was

not within the scope of this Court’s subsequent mandate, and the district

court did not have the power to adjudicate the claim in the second trial.

In reaching a contrary conclusion, the district court committed

several legal errors. First, the district court erroneously held that when this

19

Court ‘reversed’ the dismissal of Round Squares contract claim, it

somehow reinstated Round Square’s quantum meruit claim sub silentio.

JA11677. This ruling is directly contrary to the above-cited decisions

holding that a trial court does not have the authority on remand to

resurrect an issue waived on appeal, even if the appellate court did not

explicitly address the waived issue in its opinion. See, e.g., General

Universal, 500 F.3d at 453-54. This rule applies with special force here,

where this Court made clear that its quantum meruit holding applied only

to Suen and not to anyone else: “Suen has standing to recover in quantum

meruit,” and “Suen may recover for the efforts of the members of his

group.” JA479, 482 (emphasis added).

Second, the district court held that LVSC waived any right to contest

Round Square’s quantum meruit claim because LVSC did not challenge the

claim either at trial or in its Rule 50 motion. JA11677-78. As a preliminary

matter, it bears special emphasis that the failure to raise an issue on appeal

operates not only as a waiver, but also as a limitation on the trial court’s

authority to entertain the issue on remand. General Universal, 500 F.3d at

453-54; Connell, 6 F.3d at 30. The district court cited no case—and we have

found none—holding that a party can somehow expand the trial court’s

limited authority by either “consenting” to the re-litigation of the issue or

failing to object to it. To the contrary, “[e]ven at the joint request of the

litigants, the district court may not deviate from the mandate of an

appellate court.” Litman v. Massachusetts Mut. Life Ins. Co., 825 F.2d 1506,

1516 (11th Cir. 1987) (quoting Atsa, Inc. v. Continental Ins. Co., 754 F.2d 1394,

1396 (9th Cir. 1985)).

Furthermore, the district court’s waiver ruling was both factually and

legally incorrect. Factually, LVSC moved to dismiss all of Plaintiffs’

20

quantum meruit claims, even though LVSC expressly noted its

understanding that “Round Square is not part of the quantum meruit

claim.” JA7114, 7120.

Legally, LVSC was not required to raise the waiver claim in its Rule

50 motion because such motions deal with the sufficiency of the evidence,

rather than pure questions of law. See Belk, Inc. v. Meyer Corp., 679 F.3d 146,

161 (4th Cir. 2012) (holding that federal analog to NRCP 50 does not apply

to pure questions of law); Advocare Int’l LP v. Horizon Labs., Inc., 524 F.3d

679, 690 (5th Cir. 2008); Chemetall GMBH v. ZR Energy, Inc., 320 F.3d 714,

720 (7th Cir. 2003). In this case, Round Square’s failure to appeal the

dismissal of its quantum meruit claim, and the resulting limitation on the

trial court’s authority, raise pure questions of law.

Third, the district court held that LVSC “consented” to the submission

of Round Square’s quantum meruit claim to the jury by referring to

“plaintiffs” generally in its proposed jury instructions. JA11678. This, too,

was error since LVSC submitted its proposed instructions after the court

denied LVSC’s motion for a directed verdict against Round Square. Having

made its record and lost, LVSC simply conformed its proposed jury

instructions to the court’s ruling.

II. ROUND SQUARE FAILED TO ESTABLISH STANDING FORTHE QUANTUM MERUIT CLAIM.

LVSC is also entitled to judgment as a matter of law for an entirely

separate reason: Round Square failed to prove that it had standing to

recover in quantum meruit for the efforts of Suen and his associates. To

establish standing, a plaintiff must prove by a preponderance of the

evidence that it sustained some concrete “injury in fact” as the result of the

21

defendant’s conduct. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61

(1992). Under Nevada law, standing is a question of law that courts review

de novo. JA479. In this case, Round Square failed to prove that it

sustained any direct injury as a corporation or that it had standing to

recover for the efforts of others.

A. Round Square Failed To Prove That It Sustained Any DirectInjury As A Corporation.

At all times relevant to this case, Round Square was a corporation—

an artificial legal entity that could act only through its “agents” under

standard principles of agency law. See, e.g., Braswell v. U.S., 487 U.S. 99, 110

(1988) (“Artificial entities such as corporations may act only through their

agents.”). Nevada, likewise, has long recognized that a corporation “differs

from a natural person” and “must act by way of agents.” Edwards v. Carson

Water Co., 21 Nev. 469, 485, 34 P. 381, 387 (1893).

Consequently, to establish standing for its quantum meruit claim,

Round Square was required show that its agents performed valuable

services for LVSC without compensation to the company, thus causing an

injury to the corporation itself. See, e.g., Romy Hammes, Inc. v. McNeil

Construction Co., 91 Nev. 130, 132, 532 P.2d 263, 263-64 (1975).

In Romy Hammes, this Court upheld a quantum meruit recovery by a

construction company of the expenses it incurred when it hired three sub

contractors to perform services in a construction project. Id. at 133-34, 532

P.2d at 263-65. The Court stressed that the company directed the sub

contractors to provide the services and submitted an itemized statement of

expenses covering the sub-contractors’ fees. Id. On these facts, the Court

concluded that the sub-contractors acted as agents of the corporation, and

22

the itemized statement documented the company’s quantum meruit injury.

Id.

By contrast, in this case, Round Square failed to prove that it suffered

a similar injury because it presented no evidence that it paid Suen, Choi

and Zhu to perform any services for LVSC, or that the three men were

otherwise acting as Round Square’s agents when they purportedly

provided such services. To the contrary, the evidence at trial showed that

(1) Round Square did not hire Suen, Choi or Zhu as employees, sub

contractors or consultants; (2) Round Square did not pay them any salaries

or fees; and (3) Round Square did not enter into an agency relationship

with any of them. JA4600-03, JA5573. Rather, as Sueñ freely

acknowledged at trial, Round Square had no legal relationship at all with

Zhu or Choi. Instead, they were just Suen’s “friends” (JA5573):

Q. All right. Next question. Is there a written legallybinding document which names you, Mr. Zhu, Mr. Choi,and your partners as being employees or agents of RoundSquare, Limited?

A. A legally binding document? No. As I said, you know,we’re friends and we’re understanding that we will shareany outcome for the proceedings and we will honor thatbecause we have always honored each other’s promises.

To be sure, Round Square argued below that Suen could be deemed

to be an “agent” of Round Square because he was a co-owner and a director

of the company. JA9247, 9251-53. On this basis, Round Square asserted

that Suen’s acts could be attributed either to Suen (the individual Plaintiff)

or to Round Square (the corporate Plaintiff), or to both. Id.

However, this claim ignores the critical fact that Suen and Round

Square were both named Plaintiffs in the underlying action. As a result,

23

Suen and Round Square each bore the burden of establishing standing by

proving that they each suffered a separate and distinct “injury in fact”—

Suen as the individual Plaintiff and Round Square as the corporate

Plaintiff.

To this end, Suen and Round Square were required to make some

showing as to when Suen was acting in his individual capacity ‘and when

he was acting as Round Square’s agent. If all of Suen’s acts could

automatically be attributed to both Suen and Round Square (because Suen

and Round Square were effectively the same entity), there could be no legal

basis for naming both entities as plaintiffs in this action. See NRCP 17(a)

(“every action shall be prosecuted in the name of the real party in interest”).

Yet neither Suen nor Round Square offered any evidence showing

that Suen provided any quantum meruit services while acting as an agent

of Round Square (as opposed to acting in his individual capacity). This

failure to show exactly when Suen was acting as Round Square’s agent is

especially critical as it relates to Suen’s alleged “coordination” of the

activities of Choi and Zhu—the two individuals who were allegedly

responsible for conceiving and setting up the Beijing meetings (JA1948-50,

JA5073-82), but who indisputably did not enter into any kind of agency

relationship with Round Square (JA5573).

Not only did Round Square make no attempt to address this critical

issue, but the evidence at trial affirmatively showed that Suen did not act as

Round Square’s agent when he allegedly performed quantum meruit

services for Round Square. In his testimony at trial, Suen acknowledged

that he was pursuing the quantum meruit claim in his individual capacity,

while Round Square was pursuing only the breach of contract claim.

JA4603. Accordingly, by his own admission, Suen did not perform any

24

services as an agent of Round Square for purposes of the quantum meruit

claim. Id.

Thus, Round Square failed to present any evidence showing that it

paid or directed Suen, Choi or Zhu to provide any services purportedly

benefitting LVSC, or that it otherwise entered into any kind of agency

relationship with the three men to provide such services. As a result,

Round Square failed to prove that it sustained any quantum meruit injury

itself

B. Round Square Does Not Have Standing To Recover OnBehalf Of Others.

Round Square also claimed that it had standing to recover in

quantum meruit on behalf of the members of the Suen group. JA9247-50. To

support the claim, Round Square cited this Court’s Suen I decision

upholding Suen’s standing to recover in quantum meruit for Choi and Zhu,

even in the absence of any legal relationship between Suen and his two

friends. JA9249-50. Round Square argued that the same principle applied

to its efforts to recover in quantum meruit on behalf of the Suen group. Id.

This argument ignores the fundamental distinction between

individuals and corporations. Whatever Suen I decided with respect to

Suen as an individual, it plainly does not apply to corporations like Round

Square. First, as noted earlier, unlike individuals, corporations are artificial

legal entities that can only act through agents. See, e.g., Braswell, 487 U.S. at

110. Consequently, a corporation does not have standing to recover

damages on behalf of unrelated third parties like Choi and Zhu. See, e.g.,

Warth v. Seldin, 422 U.S. 490, 499 (1975) (a litigant “must assert his own legal

rights and interests, and cannot rest his claim on the legal rights and

interests of third parties”).

25

Second, even if the Suen group could somehow be viewed as Round

Square’s “members,” Round Square would still not have standing to

recover damages on behalf of such individuals. The law is clear that an

organization like Round Square cannot obtain legal relief on behalf of its

members except when (inter alia) “neither the claim asserted nor the relief

requested requires the participation of individual members in the lawsuit.”

Friends of the Earth, Inc. v. Laidlaw Environ. Serv., Inc., 528 U.S. 167, 181

(2000).

In applying this principle, the U.S. Supreme Court has held that an

organization cannot obtain damages on behalf of its members, even though

it can sometimes obtain equitable relief on their behalf. Warth, 422 U.S. at

515-16. The rationale for this rule is that in the case of damages “whatever

injury may have been suffered is peculiar to the individual member

concerned, and both the fact and the extent of the injury would require

individualized proof”—i.e., the participation of the member as a named

plaintiff in the lawsuit. Id.

The same logic applies here. As a matter of law, Round Square

cannot recover damages in quantum meruit “on behalf of” the members of

the Suen group because whatever injury each member sustained requires

individualized proof. For example, if the evidence were viewed in the light

most favorable to Choi and Zhu (and ignoring, for the moment, the

causation problems discussed below), Choi and Zhu might be entitled to

recover much more in quantum meruit than Suen because they allegedly

conceived and set up the Beijing meetings. For these reasons, Choi and

Zhu would have to be named plaintiffs in the lawsuit to enforce whatever

rights they have to quantum meruit damages. See NRCP 17(a) (real party

26

in interest must be named plaintiff) and NRCP 19 (joint obligees are

necessary and indispensable parties).

Thus, under settled law, Round Square does not have standing to

recover damages “on behalf of” the Suen group, even assuming arguendo

that the members of that group could also be viewed as “members” of

Round Square. Not surprisingly, in fact, neither the district court nor

Round Square cited a single case upholding the right of an organization to

recover damages on behalf of its members, let alone on behalf of unrelated

third-parties such as Choi and Zhu. See Bano v. Union Carbide Corp., 316

F.3d 696, 714 (2d Cir. 2004) (“We know of no Supreme Court or federal

court of appeals case ruling that an association has standing to pursue

damages claims on behalf of its members.”).

C. Round Square Did Not Satisfy This Court’s Conditions ForStanding To Recover On Behalf Of Others.

Even if Suen I applied to corporations as well as to individuals—an

assumption that is contrary to this Court’s opinion—Round Square still

failed to prove standing in this case. In Suen I, this Court made clear that

Suen could establish standing to recover on behalf of the others only if he

could show that he was the “coordinator” of their efforts and they

“expected payment” in return for their services. JA482. Consequently, the

Court held that LVSC could inquire at the second trial into the nature of

Suen’s financial and other relationships with each member of the group. Id.

If Suen I also applies to corporations, Round Square would have had

to make the same showing to establish standing. Yet, at the second trial,

Round Square presented no evidence showing that Suen “coordinated” the

activities of his group while acting as Round Square’s agent (rather than in

his individual capacity), or that Round Square entered into any kind of

27

“financial relationship” with Choi, Zhu or even Suen. Indeed, the only

testimony at trial concerning any “financial relationship” was Suen’s claim

that he personally entered into a purported oral agreement after this Court’s

decision in Suen Ito split any recovery by giving 30% to Choi, 30% to Zhu,

and 40% to himself. JA4157. Even if this testimony is credited, the alleged

“financial arrangement” plainly did not involve Round Square. Thus,

based on Suen’s testimony alone, Round Square failed to meet this Court’s

two key conditions for standing to recover in quantum meruit on behalf of

others.

D. In The Alternative, LVSC Is Entitled To A New Trial OnStanding.

Finally, over and above the fact that Round Square lacked standing

as a matter of law, the district court abused its discretion by refusing to

admit key evidence relevant to this Court’s requirement that Choi and Zhu

had to “expect payment.”3

Zhu did not testify either by deposition or at trial, and Choi testified

only by deposition in which he admitted that (1) he did not have any

“specific expectation” of what payment he would receive for his efforts; and

(2) he did not have an oral agreement with Suen as to what percentage of

any recovery he would receive for his services. JA8596-97. The district

court refused to admit Choi’s admission on the ground that it was outdated

in light of Suen’s testimony that he, Choi, and Zhu later reached an oral

agreement to share the recovery. JA5924-27. But the relevant question

under this Court’s decision in Suen I is not whether Choi expected payment

at the time of trial in 2013. Rather, the relevant inquiry is whether Choi

As detailed in Section V below, the Court reviews evidentiary decisionsfor abuse of discretion.

28

“expected payment” in 2001 when he allegedly provided the services for

which Suen later sought recovery, such that LVSC might have understood

at that time that Suen had engaged other individuals who “were to be paid

by Suen for their efforts.” JA482. The asserted agreement, allegedly

reached years after the fact, has no relevance to Choi’s “expected payment”

in 2001. By contrast, the very fact that Choi provided the services with no

“specific expectation” about payment is relevant to both the standing and

the damages issues.

III. ROUND SQUARE’S QUANTUM MERUIT JUDGMENT OF $100MILLION IS NOT BASED ON SUBSTANTIAL EVIDENCE

LVSC is also entitled to judgment because the evidence was

insufficient to support Round Square’s $100 million judgment. The sheer

enormity of this award stands in sharp contrast to the complete lack of

resources of the corporate Plaintiff. In his testimony at trial, Suen admitted

that Round Square had been “dormant” for nearly 10 years and that it had

no full-time employees. JA4602-03. Suen also provided no details about

Round Square’s alleged “real estate business in China” other than “it’s

useful to have a foreign company to go in and ... try and ... negotiate

deals.” JA1708. Finally, Suen presented no tax returns, no financial

statements and no other company documents to prove that Round Square

ever had any actual business operations—only a single business card and a

few facsimiles purportedly bearing a “Round Square” letterhead. JA1537,

2499, 2849.

Not surprisingly, therefore, Round Square presented no evidence

showing that it expended any corporate resources—or played any

substantive role—in setting up the Beijing meetings or otherwise assisting

29

LVSC in obtaining the Macanese gaming subconcession. Yet Round Square

now stands as the beneficiary of a $100 million judgment representing the

“reasonable value” of services it purportedly provided to LVSC.

This judgment cannot stand. As shown below, Round Square failed

to present “substantial evidence” establishing the two most critical elements

of its quantum meruit claim—namely, that the company provided services

conferring a “benefit” on LVSC; and that the “reasonable value” of such

services was $70 million. See, e.g., Prabhu v. Levine, 112 Nev. 1538, 1543, 930

P.2d 103, 107 (1996) (verdict cannot stand unless “based upon substantial

evidence in the record”).

A. Round Square Presented No Substantial Evidence that ItConferred a Benefit on LVSC.

An action in quantum meruit requires the plaintiff to prove that it

conferred some benefit on the defendant without receiving “reasonable

value” for its services. Certified Fire Protection, Inc. v. Precision Construction,

Inc., 283 P.3d 250, 257 (Nev. 2012). In this case, Round Square claimed that

it conferred a “benefit” on LVSC by setting up the Beijing meetings which

allegedly caused Macau to give LVSC the subconcession.

To prove this “benefit,” Round Square had to establish the following

causal chain consisting of four independent factual predicates:

1. Acting through its agents, Round Square set up theBeijing meetings.

2. As a result of the Beijing meetings, the Chinesegovernment preferred LVSC to competing bidders;

3. The Chinese government thereafter communicated itspreference for the LVSC bid to the Macau government;and

30

4. The Macau government ignored the criteria specified byMacau law for evaluation of bids and instead awardedLVSC a subconcession based on the Chinesegovernment’s alleged preference.

Round Square proved none of these propositions. First, it offered no

evidence showing that anyone acting as its agent played any role in setting

up the Beijing meetings. Instead, the evidence showed that Zhu and

Choi—two individuals who had no agency relationship with Round

Square—were solely responsible for arranging the meetings. JA1948-50,

JA5073-82.

Round Square also offered no evidence showing that the Chinese

government favored LVSC over other bidders or that it communicated

whatever preference it had to the Macau government. Indeed, the only

suggestion that the Chinese government communicated anything about

LVSC to the Macau decisionmakers was hearsay asserting that Edmund Ho

knew the meetings had taken place. See Section V.A infra. Aside from its

inadmissibility, this hearsay alone provides no basis for an inference that

the Chinese government directed Ho to support LVSC’s application.

Finally, Round Square offered no evidence that the Chinese

government actually influenced the tender process. Indeed, Round Square

never claimed that the Beijing meetings actually influenced the Tender

Commission. Instead, Round Square asserted that circumstantial

evidence—namely, Suen’s “educated guess” based largely on the Macau

government’s award of the subconcession to LVSC a year and a half after

the Beijing meetings—supported an inference that the meetings caused the

award. JA5181. But only sheer conjecture could link the meetings to the

award of the subconcession. Dawson v. Withycombe, 163 P.3d 1034, 1053

31

(Ariz. Ct. App. 2007) (asking the jury “to pile inference upon inference,”

stretches the evidence presented “beyond the bounds of circumstantial

evidence”).

Indeed, an equally if not more plausible explanation is that LVSC

received the subconcession because of its broad experience in casino

operations and convention services, as well as the superior financial

commitment by Galaxy. If the evidence shows that two “causes are equally

probable,” then a verdict for the plaintiff necessarily rests on impermissible

“speculation and conjecture.” Wilson v. Circus Circus Hotels, Inc., 101 Nev.

751, 755, 710 P.2d 77, 80 (1985). For all of these reasons, the evidence does

not support a finding that Round Square conferred any “benefit” on LVSC.

B. The Evidence Did Not Support a Quantum Meruit Judgmentof $100 Million.

The evidence also fails to support a judgment of $100 million as the

“reasonable value” of Round Square’s services. As shown above, the jury

reached this conclusion even though Round Square did not expend any

corporate resources to pay Choi, Zhu or Suen, or to provide any other

service to LVSC. This is a critical omission, as quantum meruit rests on the

idea that a plaintiff who has conferred a benefit on a defendant should

receive the “reasonable value” of his services. See Certified Fire Protection,

283 P.3d at 256.

In this case, the jury’s award undoubtedly reflected a “success fee” for

the services rendered by Choi and Zhu—the two individuals who allegedly

conceived and implemented the Beijing meetings. This is particularly true

since the district court instructed the jurors that in determining value they

“should consider the services of those who assisted the Plaintiff in providing

services to Defendant.” JA7875 (emphasis added). But as shown above, the

32

acts of Choi and Zhu cannot be attributed to Round Square because, by

Suen’s own admission, they were not agents of the corporation—rather,

they were just “friends” of Suen. JA5573. As such, the value of their

services cannot be attributed to Round Square for purposes of a quantum

meruit award.

For this reason alone, the evidence is insufficient as a matter of law to

support the $100 million judgment and, at a minimum, this Court should

remit the damages awarded to an amount not to exceed $1 million, which

is still well above the market value of Suen’s alleged services alone. See

Sierra Foods v. Williams, 107 Nev. 574,577, 816 P.2d 466, 467 (1991)

(remittitur appropriate where there is an absence of “competent evidence”

supporting the damage award).

IV. THE DISTRICT COURT FAILED TO PROPERLY INSTRUCT THEJURY ON QUANTUM MERUIT.

LVSC is also entitled to a new trial because the district court failed to

properly instruct the jury on the requirements of quantum meruit and the

proper measure of quantum meruit recovery. This Court reviews

instructional issues for abuse of discretion. Atkinson v. MGM Grand Hotel,

Inc., 120 Nev. 639, 642, 98 P.3d 678, 680 (2004). “[A] party is entitled to have

the jury instructed on all of his case theories that are supported by the

evidence.” Id. (quotation omitted).

A. The District Court Failed to Properly Instruct the Jury On TheElements Of Quantum Meruit.

Even though the question of causation was critical and vigorously

disputed, the district court gave an instruction on quantum meruit that

omitted the conferring of a “benefit” as a prerequisite to recovery. Nevada

law requires a quantum meruit plaintiff to show not only that he or she

33

performed a service with the defendant’s acquiescence, but also that the

service caused or “confer[red} a benefit on the defendant.” Certified Fire

Protection, 283 P.3d at 257.

Consistent with Nevada law, LVSC’s proposed instructions required

Plaintiffs to prove that the “service provided by the plaintiff confer[red] a

benefit on” LVSC that was “attributable” to the plaintiff’s services. JA7425-

26. On the facts of this case, this instruction would have required Plaintiffs

to show that the Beijing meetings caused the Macau officials to award the

subconcession to LVSC.

The district court, however, deleted the requirements of “conferring a

benefit” by requiring Plaintiffs to show only that they “performed a service

of value” to LVSC. JA7874. The district court concluded that the language

on “performing services of value” was sufficient to incorporate the

requirement of “conferring a benefit.” JA11678.

But in this case, “value” and “benefit” were very different concepts.

Round Square did not seek compensation based on the “value” of its time

and expenses. Rather, it sought a “success fee” based on the “benefit” of

helping LVSC in obtaining the gaming subconcession in Macau. This made

it critical for Round Square to prove that its efforts caused Macau to give

LVSC the “benefit” of the subconcession. This Court’s Order recognized

that if the jury “found there was no connection between the Beijing meetings

and the tender process,” there would be no basis for a success fee. JA487

(emphasis added).

By deleting LVSC’s “confer a benefit” language, the district court

allowed the jury to find for Round Square even if it found “no connection

between the Beijing meetings and the tender process.” In addition, the

district court’s vague reference to a “service of value” allowed the jury to

34

give Round Square the massive “success fee” it sought so long as it

performed services having some abstract “value” to LVSC (e.g. by

introducing them to PRC officials who might be helpful on other Far East

ventures), even if those services did not cause or “get the license” in Macau.

The court’s erroneous instruction, combined with other errors that also

diluted Plaintiffs’ burden to prove causation, requires that LVSC receive a

new trial.

B. The District Court Improperly Instructed the Jury on theMeasure of Quantum Meruit Recovery.

The district court also improperly instructed the jury on the measure

of quantum meruit recovery. At trial, the parties offered two dramatically

different measures. LVSC took a straightforward “market value” approach.

Even taking a generous view of the hours that Suen and his friends spent,

and the hourly rates the market pays for analogous consulting services, the

maximum recovery under LVSC’s “market value” approach was $1 million.

JA3070-71, JA3299.

By contrast, Plaintiffs presented no evidence of market value.

Instead, they urged the jury to award a “success fee” based on LVSC’s

profits — that is, based on the benefit of the subconcession LVSC received,

supposedly as a result of Plaintiffs’ efforts. Plaintiffs claimed that this

valuation was based on Weidner’s alleged offer of a “success fee” of $5

million and 2 percent of net profits.

The district court’s instruction endorsed only one side’s measure of

recovery: Plaintiffs’ approach, based on “offers and proposals.” JA7875.

The court refused LVSC’s balanced proposal, which would have told the

jury that it was not “bound” by offers and “should evaluate what plaintiffs

would have been paid ... in the open market” as well. JA7428. Moreover,

35

LVSC’s instruction would have cautioned the jury that “the proper measure

of recovery is not the value of the benefit received by [LVSCJ.” Id. It is not

surprising that, deprived of proper instructions on market value, the jury

gave Round Square an award of $70 million — a windfall 70 times the

uncontroverted market value of the associated services.

The district court’s attempt to endorse the Weidner “offer” and

exclude market value was doubly wrong. First, by its express terms,

Weidner’s offer did not set the value of the services for which Plaintiffs

sought recovery at trial (arranging the Beijing meetings), nor did it displace

market value as a measure of recovery. By the time of Weidner’s offer, the

Beijing meetings had already occurred, and both sides agreed that Suen had

much more work to do before earning a “success fee.” Weidner expressly

stated that his offer required Suen to locate a suitable investment partner,

“develop a budget” for the “public relations effort required to secure a

license,” and “set up a meeting with Edmund Ho,” Macau’s Chief

Executive. JA994-96, JA2507-08. Suen never objected to these conditions,4

and he never satisfied them. Instead, he and his group dropped out before

the tender process began, leaving LVSC to do the work of finding an

investor and “getting the license” itself.

Weidner expressly contemplated that possibility in the negotiations,

and stated that if Suen failed to fulfill his requirements, “the success fee we

had discussed earlier would not be applicable.” JA2508. Rather, Suen’s

recovery would be limited to “equitable reimbursement” for Suen’s “time

Suen’s own proposals also required him to provide extensive servicesabove and beyond the Beijing meetings: to conduct “market research,”develop a bidding strategy, set up a “project company,” and spearhead amassive lobbying and public relations campaign. JA1003-05.

36

and effort” — that is, the market value of Suen’s services. Id. It was error for

the district court to displace market value with an “offer” that did not

propose a “success fee” for the Beijing meetings alone, and that required

Suen to complete tasks he failed to perform. See Asphalt Products Corp. v.

All Star Ready Mix, Inc., 111 Nev. 799, 802, 898 P.2d 699, 701 (1995)

(reversing award based on parties’ agreed monthly payments because

agreement reflected five-year lease with subsequent purchase, while

defendant used equipment for only ten weeks).

More fundamentally, market value is the presumptive measure of

recovery in quantum meruit, and the district court’s refusal to mention it

even as an option was contrary to law. As this Court has stated, “quantum

meruit ensures the laborer receives the reasonable value, usually market

price, for his services.” Certfied Fire Protection, 283 P.3d at 256 (quoting

Restatement (Third) of Restitution & Unjust Enrichment § 49 cmt. f (2011))

(emphasis added). Indeed, market value trumps the parties’ offers. “The

actual value of recovery in such [quantum meruit] cases is ‘usually the

lesser of (i) market value and (ii) a price the defendant has expressed a

willingness to pay.” Id. at 257 n.3 (quoting Third Restatement § 31 cmt. e).

Even where the parties agree on price, “[q]uantum meruit contemplates

that the true reasonable value is to be substituted for the agreed terms” and

the agreed fee “cannot be ... the controlling or dominant consideration.”

Gordon v. Stewart, 74 Nev. 115, 119, 324 P.2d 234, 236 (1958), overruled on

other grounds by Argentena Consol. Mining Co. v. Jolley Urga Wirth Woodbury

& Standish, 125 Nev. 527, 216 P.3d 779 (2009).

Conversely, a judgment based on the value of the benefit the

defendant allegedly received “cannot stand.” Maglica v. Maglica, 66 Cal.

App. 4th 442,446, 78 Cal. Rptr. 2d 101, 102 (1998) (reversing $84 million

37

verdict calculated as share of value of defendant’s business). While the

causation of a benefit is a “prerequisite to recovery,” it is not a measure of

the recovery: “It is one thing to require that the defendant be benefited by

services, it is quite another to measure the reasonable value of those services

by the value by which the defendant was ‘benefited’ as a result of them.”

Id. at 450, 78 Cal. Rptr. 2d at 105. Recovery based on benefit is improper

because it “can result in the plaintiff obtaining recovery amounting to de

facto ownership in a business all out of reasonable relation to the value of

services rendered.” Id.

That is exactly what happened here. LVSC prepared and presented a

winning bid based on its own experience and expertise. LVSC obtained

investment partners and ultimately put up the capital for the Macau resorts

at its own risk. Plaintiffs did not prepare or present the bid, did not find a

suitable investor, did not put up any capital, and played no role in

operating the resorts. Yet the jury awarded Round Square a defacto share

of the business — over 70 times even a generous view of the market value of

the alleged services.

The jury received another push in that unlawful direction during

trial. In examining Weidner, Plaintiffs’ counsel improperly referenced

LVSC’s settlement of another case in which a party sought 5% of the profits

from the Macau operations. JA3397. The district court recognized that

Plaintiffs’ reference was improper, but refused to grant a mistrial. JA3408.

The court told the jury not to consider the settlement (JA3423-24), but by

then the damage had been done — and the wound was reopened by the

court’s closing instructions, which endorsed Plaintiffs’ measure of recovery

based on “offers” and omitted any mention of LVSC’s “market value”

approach. JA7875. The improper reference to the settlement was

38

prejudicial in and of itself; coupled with the erroneous jury instruction on

recovery, it warrants a new trial. In the alternative, the Court should order

the district court to enter a remittitur reducing the award to $1 million, the

amount established by the only evidence of market value in the record.

V. THE DISTRICT COURT ERRED IN ADMITTING HEARSAYAND IMPROPER “EXPERT” TESTIMONY ON THE CAUSATIONISSUE.

In addition to lowering the legal bars for establishing causation, the

district court improperly lowered Plaintiffs’ evidentiary hurdle by allowing

them to use hearsay and improper “expert” testimony. This Court reviews

such evidentiary rulings for abuse of discretion. Crowley v. State, 120 Nev.

30, 34, 83 P.3d 282, 286 (2004) (hearsay); Hallmark v. Eldridge, 124 Nev. 492,

498, 189 P.3d 646, 650 (2008) (expert testimony). If the Court finds an abuse

of discretion, it then “determine[sJ whether the error compels reversal.” Id.

at 504, 189 P.3d at 654. Reversal is warranted “when the appellant

demonstrates from the record that, but for the error, a different result

might reasonably have been expected.” Id. at 505, 189 P.3d at 654

(quotation omitted). But for the district court’s evidentiary errors in this

case, a different result on causation “might reasonably have been expected.”

A. The Court Erroneously Allowed Plaintiffs To Use Hearsay As“Evidence” Of Causation.

On cross-examination, Suen admitted that he had no direct evidence

that the PRC told Macau’s Chief Executive Edmund Ho or the Tender

Commission to award the subconcession to LVSC, only an “educated

guess.” JA5181. On redirect, Suen tried to bolster his guess with double

layer hearsay, asserting that (1) Weidner told Suen that (2) Ho told

Weidner that “he” (Ho) “knows all about our meeting” in Beijing. JA5318.

39

After the district court denied LVSC’s objection, Suen repeated the hearsay.

JA5319. The district court acknowledged that it “would have earlier in the

trial found that [statement] would be hearsay,” but decided that LVSC’s

cross-examination of Suen had opened the door to the statement’s

admission. JA5385-86.

The district court’s allowance of this double hearsay is an encore of

the error that led this Court to reverse the first judgment. At the first trial,

the district court admitted hearsay for the asserted purpose of rebutting

Weidner’s testimony that “there was no evidence showing that Suen helped

[LVSC] obtain a license in Macau.” JA485. Here, the court allowed

Plaintiffs to use similar hearsay for the same ostensible purpose: to rebut

Suen’s admission that there was “no direct evidence” that the Beijing

meetings in July 2001 caused Macau to award LVSC the subconcession in

December 2002. JA5180-81.

In the first appeal, this Court held that the hearsay was inadmissible

for rebuttal, because any rumor Weidner allegedly heard did not contradict

his testimony that he had no evidence. JA486. Likewise, the similar

Weidner hearsay here did not contradict Suen’s admission that he had no

“direct evidence” of a link between the meetings and the subconcession.

Any hearsay Suen might have heard from Weidner was not direct evidence.

More importantly, the district court’s “rebuttal” theory was irrelevant.

The Weidner statement here contained more than one layer of hearsay (just

like the multi-layered hearsay at the first trial). The district court

mistakenly thought the Weidner statement was only “a single level of

hearsay” (JA5386), but in reality Weidner’s statement to Suen relayed a

second statement Weidner supposedly heard from Edmund Ho (JA5318).

Even if the Weidner-to-Suen layer was admissible to rebut Suen’s

40

admission, the district court did not confront the critical Ho-to-Weidner

layer. JA5385-86. By the plain terms of NRS 51.067, such “hearsay within

hearsay” is admissible only “if each part of the combined statements

conforms to [a hearsay] exception.”

Choi’s Notes. To make matters worse, the district court allowed

Plaintiffs to spread several more out-of-court statements on top of the

double hearsay. Choi testified by deposition that he delivered handwritten

notes of the Beijing meetings to a secretary in the PRC Vice Premier’s office,

and asserted that he said “we’ll tidy them up and we’ll give them to

Macau.” JA5852. After granting LVSC’s pre-trial motion to exclude Choi’s

statement as hearsay, the district court did an about-face and admitted it,

telling the jury it could use that statement (i) as evidence of the secretary’s

“state of mind,” and (ii) to infer that the secretary did transmit Choi’s

“report” to Macau. JA5962-63.

The court’s ruling misread the “state of mind” exception under NRS

51.105(1). First, for the exception to apply, the declarant’s mental state

must be material; here, the secretary’s mental state was immaterial because

he was not the decisionmaker. Amerisource Corp. v. RxUSA Int’l, Inc., 2009

WL 235648 (E.D.N.Y. Jan. 30, 2009) (construing federal analog to NRS

51.105). Only the Vice Premier’s mental state was relevant, and the

secretary’s use of “we” could have led the jury to use his statement as

evidence of the Vice Premier’s mental state, contrary to the statutory

limitation that the exception applies only to the declarant’s state of mind.

NRS 51.105(1); Amerisource, 2009 WL235648, at *2.

Second, the hearsay did not clearly convey even the secretary’s

mental state. Although he allegedly stated his intent to deliver something to

someone in Macau, he did not identify the recipient and did not specify

41

what he would deliver. Plaintiffs never produced Choi’s version of the

report (he claimed that he did not keep a copy (JA5852)), and the secretary

did not say how he planned to “tidy” it up. As a result, the jury was left to

speculate about the contents and recipients of the phantom report, and

about the effect (if any) it might have had on the Macau tender process.

Third, the ‘state of mind” exception (like other hearsay exceptions) is

based on a generalization: that a declarant’s statements about his or her

state of mind are typically more reliable than other hearsay. Like all

generalities, it is not always correct, and in each case “there must be at least

circumstantial evidence that (the statements) are probably trustworthy and

credible.” People v. Lew, 69 Cal. Rptr. 102, 105 (Cal. 1968). The

circumstances here show that the statements are not trustworthy, because

their source did not have decisionmaking authority, the contents and

recipient of his intended “report” were vague, and Choi’s “report” was itself

hearsay, and no copy has ever been produced. To make matters worse, the

district court allowed Suen to vouch for Choi as “trustworthy”; further, the

judge said, with the jury present, that Choi’s qualifications had “been

established ... at least two or three times.” JA1950.

Suen’s Notes. In addition to the Weidner-Ho hearsay and Choi’s

“report,” the district court allowed Suen to introduce notes of the Beijing

meetings that contained embedded hearsay: Suen’s assertion that LVSC’s

“Las Vegas of the Far East” idea was “well received by authorities in China

and Macau.” JA1830. The court acknowledged that its ruling would “be

reviewed” but overruled LVSC’s objection because LVSC had presented

evidence about its “Las Vegas of the Far East” plan. JA1940-41. But

whether LVSC had such a plan is beside the point: Suen’s notes purported

to reflect out-of-court statements to and from someone in Macau reacting to

42

the plan. The court acknowledged that this problem ‘takes it to another

level as to what the Chinese people thought about it” but ignored the issue.

JA1942.

Suen’s Assertions About Statements By Unnamed PRC Officials.

Finally, Suen relayed a statement by Zhu (who did not appear at trial) that

unnamed PRC officials had told Zhu not to testify (JA5190-92), and then

added that “some parties in the government” had made similar statements

to Suen himself (JA5572). Because Suen’s hearsay insinuated that the PRC

was trying to cover up its supposed involvement in the tender process,

LVSC sought to impeach him with the Chinese Foreign Ministry’s public

denial of any involvement. The district court refused, holding that the

PRC’s statement (reported by Reuters’ news service (JA8593)) was

unreliable hearsay. JA5601. The court’s “hearsay” rationale was not only

ironic (given that LVSC was trying to rebut out-of-court statements offered

by Plaintiffs) but erroneous. LVSC did not seek to use the article for the

truth of the matters asserted therein, only for impeachment. See ACTOnet,

Ltd. v. Allou Health & Beauty Care, 219 F.3d 836, 846-47 (8th Cir. 2000)

(magazine review not hearsay “because [party] offered the article for

purposes of impeachment”). In any event, Plaintiffs had opened the door

by introducing hearsay in the first place.

As in the first trial, the district court’s multiple hearsay errors were

prejudicial and warrant a new trial. “Without the hearsay statement” in the

first trial, “the jury may have found there was no connection between the

Beijing meetings and the tender process.” JA487. The same is true of the

statements here, particularly when one considers the other evidentiary and

instructional errors that affected the critical issue of causation.

43

B. The District Court Erroneously Admitted “Expert” Testimony.

The district court also helped Plaintiffs to overcome the evidentiary

bar for establishing causation by putting the stamp of an “expert’ on their

theory that gratitude or “guanxi” led the PRC to cause Macau to issue the

subconcession to LVSC. Plaintiffs, by their own admission, have no

evidence of causation, only Suen’s “educated guess.” JA5181. Plaintiffs’

“expert,” Professor Tong, added nothing but his credentials to their

speculation. He never communicated with Macau’s Chief Executive or any

of the PRC officials who attended the Beijing meetings. JA6956, 6974-75.

The district court correctly recognized that Tong had no foundation

to offer any “factually based” opinions about “the effect of the [Beijing]

meetings.” JA3549, JA6738, JA6908. But it then allowed Tong to provide

such opinions indirectly, by endorsing Plaintiffs’ theory about the effect of

the meetings. The court allowed Tong to opine that the actions of Macau’s

Chief Executive in 2002 (encouraging LVSC to join with Galaxy, awarding

the concession to Galaxy, and then awarding a subconcession to LVSC)

were “consistent” with Plaintiffs’ theory. JA6906-07.

The court’s allowance of “expert” testimony on cause and effect —

after acknowledging that the “expert” lacked a factual basis to opine on

causation — violates the fundamental precept that expert testimony cannot

be founded on “assumption, conjecture, or generalization.” Hallmark, 124

Nev. at 501, 189 P.3d at 652. In Hallmark, this Court held that expert

testimony was properly excluded, notwithstanding the expert’s

qualifications, because it “was based more on supposition than science” and

“did not consider critical pieces of information.” Id. at 503, 189 P.3d at 653-

54. The same conclusions apply here.

44

First, the sole purpose of Tong’s “consistency” opinion was to endorse

Suen’s own “guess” about the motivations of public officials that Tong (and

Suen) had never met. Given the district court’s correct conclusion that

Tong had no basis to opine on whatever effect the Beijing meetings might

have had on those officials, Tong’s testimony was just another layer of

“supposition” on top of Suen’s guess. Hallmark, 124 Nev. at 503, 189 P.3d at

653 (doctor’s opinion that injuries were not caused by car accident properly

excluded where doctor “did not inspect [the] vehicle” and did not know the

area, angle or speed of impact); Valentine v. Pioneer Chlor Alkali Co., 921 F.

Supp. 666, 671 (D. Nev. 1996) (doctor’s testimony inadmissible where he

could not opine that observed abnormalities in plaintiff’s immune system

were caused by chlorine exposure, “but only offered his opinion that ‘this is

what you typically see after chemical exposure”).5

Second, Tong “did not consider critical pieces of information and

instead relied heavily on assumptions.” Hallmark, 124 Nev. at 504, 189 P.3d

at 654. He looked at one alleged theory of causation (Plaintiffs’ theory

based on the Beijing meetings) and tried to connect a few selected events

scattered over a year and a half: the meetings in July 2001, the

LVSC/Galaxy pairing in January 2002, the provisional tender in February

2002, and the LVSC subconcession in December 2002. Over and above the

significant gaps in time, there were critical intervening events between the

Beijing meetings and Macau’s actions, namely, the operation of the public

tender process. In particular, the February 2002 provisional concession

came immediately after the Tender Commission issued its 83-page report

This Court has held that federal decisions on expert testimony “mayprovide persuasive authority” and expressly cited Valentine as such.Hallmark, 124 Nev. at 498, 500-01 nn. 18, 19 & 21, 189 P.3d at 650, 651.

45

(JA4319-4435) recommending that LVSC/Galaxy (and two other bidders)

receive concessions (JA4352).

Thus, the official actions of Macau that Tong called “factual bases” for

his “guanxi opinion” are also “consistent” with LVSC’s theory of causation:

that the subconcession resulted from Macau’s public tender process.6 Tong

excluded the intervening events of the tender process from his “factual

bases,” and he had no basis to rule out LVSC’s alternative theory of

causation based on the tender process. See Valentine, 921 F. Supp. at 672

(doctor’s opinion that plaintiffs “exhibited significant cognitive and

emotional deficits” after chlorine exposure inadmissible where he “made no

efforts to determine the cause of those deficits, or to rule out possible

etiologies other than chlorine”). His opinion on “consistency” was nothing

more than inadmissible conjecture that Macau’s decisions could have

resulted from the Beijing meetings. Id. at 672 (doctor’s opinion that

plaintiff’s abnormalities “could have occurred as a result of the toxic event”

inadmissible).

Worse, Tong’s “consistency” opinion was a thinly disguised attempt

to confuse the jury into thinking that an expert had endorsed Plaintiffs’

theory of causation as “consistent” with the evidence — a credibility

determination the jury was supposed to make on its own. See U.S. v. Azure,

801 F.2d 336, 340-41 (8th Cir. 1986). The court’s abstract notion that the jury

could distinguish Tong’s views on “consistency” from the ultimate issue of

causation proved unsustainable in practice. Despite the court’s recognition

that Tong had no basis to present “factually based” opinions about the

6 Indeed, the tender process is the more likely explanation, as it is muchcloser in time and space to Macau’s actions, and is supported by the officialrecord.

46

effects of the Beijing meetings (JA6738), the slides accompanying his

testimony described Macau’s actions as “factual bases” for his “guanxi

opinion” (JA6895, JA8482-84).7And at the end of his direct testimony, Tong

himself dropped all pretense and opined “that the meetings in Beijing ha[d]

an effect on [LVSC] obtaining the license” and that LVSC received the

subconcession “as a result of” the meetings. JA7026.

VI. OTHER ERRORS PREJUDICED LVSC’S RIGHT TO A FAIRTRIAL.

A. LVSC Was Prejudiced by the Presence of A Biased Juror.

During the jury’s deliberations, Juror No. 2 requested to be separated

from the rest of the jury because Juror No. 12 had stated that Juror No. 2

allegedly feared that LVSC’s CEO would threaten her life if LVSC lost.

JA7822-23, 7825. The baseless and inflammatory nature of Juror No. 12’s

comment can be explained only by a serious bias against LVSC (and its

CEO) that voir dire unfortunately failed to reveal. The district court

nonetheless failed to excuse Juror No. 12 and then denied LVSC’s motion

for a mistrial.

Undisclosed juror bias may justify the grant of a new trial even when

that bias is not discovered until after the verdict, let alone during

deliberations. See, e.g., McNally v. Walkowski, 85 Nev. 696, 700-01, 462 P.2d

1016, 1018-19 (1969). Because the district court failed to excuse Juror No.

12, LVSC’s motion for a new trial should have been granted and the district

The district court further muddled “consistency” with causation byrepeatedly endorsing Plaintiffs’ causation theory as “consistent” with theevidence. See Section VI.B infra.

47

court abused its discretion by denying that motion. Id. at 702, 462 P.2d at

1019 (denial of new trial is reviewed for abuse of discretion).

B. The Court’s Bolstering of Plaintiffs’ Case Before the JurySeverely Prejudiced LVSC.

During Suen’s examination and in the jury’s presence, the district

court repeatedly suggested that Suen’s testimony was “consistent” with his

theory of the case or with his prior testimony, leaving the jury with the

impression that the judge found the testimony to be credible. First, over

LVSC’s objection for lack of foundation, the court allowed Suen to testify to

the Chinese government’s concern in gaming liberalization. JA2050-52.

The court opined that “it’s consistent, again, with his overall plan that he’s

testifying to.” JA2050. Similarly, the court allowed Suen to testify about

Chinese bureaucratic “protocol,” including that it was “protocol” that

information is “passed down” from China to Macau. JA4172. The court

opined that “it’s consistent with the theory of the plaintiff’s case, and the

venture that’s been testified to.” Id.

Next, the court overruled LVSC’s motion to strike Suen’s speculation

that the Chinese government can “effectively veto one of the [tender]

candidates” and “also give opinion to the chief executive.” JA4181. The

court explained that Suen “can give his opinion as to what the vice premier

could do under these circumstances. I think it’s consistent with the idea

that Mr. Suen has testified that he and his group set up the meeting with

the vice premier for a specific reason, to try to enable the license.” JA4182;

see also id. (“And so I think this is consistent with that whole philosophy,

and his idea, and what have you that he’s testified to that’s his opinion.”).

The court’s commentary improperly trespassed upon the jury’s role

of weighing conflicting testimony. See, e.g., Glegola v. State, 110 Nev. 344,

48

348, 871 P.2d 950, 953 (1994). As this Court has long cautioned trial courts,

“the words and utterances of a trial judge, sitting with a jury in attendance,

[are] liable, however unintentional, to mold the opinion of the members of

the jury to the extent that one or the other side of the controversy may be

prejudiced or injured thereby. Ginnis v. Mcipes Hotel Corp., 86 Nev. 408, 416-

417, 470 P.2d 135, 140 (1970) (citation omitted).

Here, the district court’s comments did just that. The court’s repeated

observations that Suen’s testimony on disputed facts was “consistent” with

his theory suggested to the jury that Suen’s version of the facts was the

more credible one. This constituted prejudicial error and warrants a new

trial.

49

CONCLUSION

Because Round Square waived its quantum meruit claim and failed

to establish its standing to present such a claim—and because Round

Square failed to present substantial evidence to support its $100 million

judgment—LVSC respectfully requests that this Court reverse the district

court’s judgment with instructions to enter judgment for LVSC. In the

alternative, LVSC requests that it be given a new trial or remittitur in light

of the district court’s numerous errors in the admission of evidence,

instructing the jury, and making improper comments in the jury’s presence.

Dated: June 13, 2014.

Steve Morris, Bar No. 1543 —

Rosa Solis-Rainey, Bar No. 7921900 Bank of America Plaza300 South Fourth StreetLas Vegas, Nevada 89101Telephone: (702) 474-9400Facsimile: (702) 474-9422

ROBBINS, RUSSELL, ENGLERTORSECK, UNTEREINER & SAUBERLLPRichard A. Sauber, (pro hac vice)Jennifer S. Windom, (pro hac vice)Sue Chen, (pro hac vice)1801 K. Street, N.W., Suite 411-LWashington, D.C. 20006

50

CERTIFICATE OF COMPLIANCE

1. I hereby certify that this brief complies with the formatting

requirements of Nev. R. App. P. 32(a)(4), the typeface requirements of Nev.

R. App. P. 32(a)(5), and the type style requirements of Nev. R. App. P.

32(a)(6) because the brief has been prepared in 14-point Palatino, a

proportionally spaced typeface using Microsoft Word 2007.

2. I further certify that this brief complies with the type-volume

limitations of Nev. R. App. P. 32(a)(7) because excluding the parts of the

brief exempted by Nev. R. App. P. 32(a)(7)(C), it is proportionately spaced,

has a typeface of 14-point or more and contains less than 14,000 words.

3. Finally, I hereby certify that I have read this appellate brief, and

to the best of my knowledge, information, and belief, it is not frivolous or

interposed for any improper purpose. I hereby certify I further certify that

this brief complies with all applicable Nevada Rules of Appellate

Procedure, in particular Nev. R. App. P. 28(e), which requires every section

of the brief regarding matters in the record to be supported by a reference

to the page of the transcript or appendix where the matter relied is to be

found. I understand that I may be subject to sanctions in the event that the

accompanying brief is not in conformity with the requirements of the

Nevada Rules of Appellate Procedure.

MO’

Lorris, Bar No. 1543Rosa Solis-Rainey, Bar No. 7921900 Bank of America Plaza300 South Fourth StreetLas Vegas, Nevada 89101Telephone: 702/474-9400

51

CERTIFICATE OF SERVICE

Pursuant to Nev. R. App. P. 25(b) and NEFR 9(f), I hereby certify that

I am an employee of Morris Law Group; that on this date I electronically

filed the foregoing APPELLANT’S OPENING BRIEF ON APPEAL with

the Clerk of the Court for the Nevada Supreme Court by using the Nevada

Supreme Court’s E-Filing system (Eflex). Participants in the case who are

registered with Eflex as users will be served by the Eflex system as follows:

James J. PisanelliDebra L. SpinelliTodd L. BicePisanelli & Bice3883 Howard Hughes ParkwaySuite 800Las Vegas, Nevada 89169

John A. O’MalleyOsborne J. Dykes, IIISpencer S. PerssonFulbright & Jaworski, LLP555 S. Flower Street, 41st FloorLos Angeles, California 90071

Attorneys for Respondents

Dated this 13th day of June, 2014

By:

52

Las Vegas Sands/SuenFile No: 3258-012SM RSR Client: Email