Case 1:19-cv-00859-RTH Document 48 Filed 04/16/21 Page 1 of 5
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`IN THE UNITED STATES COURT OF FEDERAL CLAIMS
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`E-NUMERATE SOLUTIONS, INC. and
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`E-NUMERATE, LLC,
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`Plaintiffs,
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`C.A. No. 19-859-RTH
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`v.
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`THE UNITED STATES OF AMERICA,
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`Defendant.
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`JOINT STATUS REPORT
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`Plaintiffs e-Numerate Solutions, Inc., and e-Numerate, LLC (collectively “e-Numerate”)
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`and Defendant the United States of America (the “Government”) respectfully submit this Joint
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`Status Report.
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`The parties agree that Plaintiffs will file an unopposed motion for leave to amend by
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`Friday, April 23, 2021. The parties’ further positions are set forth below.
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`Defendant’s Further Position
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`Pursuant to the Court’s Order (Dkt. No. 45) and the status conference held on March 15,
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`2021, Defendant states that it does not object to the Court granting Plaintiffs leave to file the
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`proposed second amended complaint and attachments thereto provided by Plaintiffs to
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`Defendant on April 2, 2021.1 However, Defendant’s non-opposition to a second amendment of
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`1 Defendant notes that Plaintiffs provided the proposed amended complaint without warning after
`the close of business on April 2, while the Court’s order required service of the proposed
`amended complaint by noon. Prospectively, Defendant expects Plaintiffs to comply with the
`Court’s deadlines or consult Defendant regarding extensions prior to deadlines.
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`1
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`Case 1:19-cv-00859-RTH Document 48 Filed 04/16/21 Page 2 of 5
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`the complaint cannot be construed as agreement to the merits of any of the proposed
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`amendments.
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`In particular, Plaintiffs’ amendments implicate “authorization or consent” under 28
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`U.S.C. § 1498(a) – a jurisdictional issue. Defendant disputes allegations by Plaintiffs that the
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`Government’s Statement of Interest in e-Numerate Solutions, Inc. et al. v. Mattress Firm
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`Holding Corp. et al., D. Del. No. 17-cv-933 (“Delaware Case”) is as broad as Plaintiffs contend.
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`See Dkt. No. 1-2. Contrary to the express language of the Statement of Interest, Plaintiffs assert
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`that “[b]y virtue of the Statement of Interest the United States has assumed all liability for patent
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`infringement by all companies that use XBRL to file documents with the SEC, FDIC/FFIEC,
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`and FERC/DOE pursuant to federal regulation.” (emphasis added).
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`While the Court’s Rules require that Plaintiffs have sufficient legal and factual support
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`for their assertions, the Government is separately investigating Plaintiffs’ assertion of
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`authorization and consent. As this is a jurisdictional issue and is Plaintiffs’ burden to establish,
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`the Government retains the right to move for dismissal based on lack of subject matter
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`jurisdiction at any time.
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`Plaintiffs’ Further Position
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`Plaintiffs contend that the Statement of Interest is a writing that speaks for itself and that
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`issues regarding the scope and effect of the Statement of Interest, if any, can be resolved during
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`the normal course of this litigation.2
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`2 Plaintiffs note the Government’s statement regarding service of the proposed amended
`complaint. The Court Ordered service on Friday, April 2 at the Status Conference in this matter.
`That date was Good Friday and plaintiffs’ counsel worked through staffing issues and computer
`connectivity issues to effectuate service on the Government that day without seeking a further
`extension. Any delay was inadvertent and no prejudice to the Government exists.
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`2
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`Case 1:19-cv-00859-RTH Document 48 Filed 04/16/21 Page 3 of 5
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`Both Parties’ Position
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`The parties have met and conferred about various issues that may arise in light of
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`Plaintiffs’ proposed assertion of an additional U.S. Patent in this litigation as well as the naming
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`of additional government agencies as accused infringers. The parties are attempting to narrow
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`the disputes between them on scheduling. The parties respectfully request an extra week to
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`present a joint proposal (or, if necessary, competing proposals) to the Court for milestones past
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`the filing of the proposed second amended complaint. The parties respectfully submit that good
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`cause exists for this extension and that this request is not being proposed for any improper
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`purpose.
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`Case 1:19-cv-00859-RTH Document 48 Filed 04/16/21 Page 4 of 5
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`Dated: April 16, 2021
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`O’KELLY & ERNST, LLC
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`Respectfully submitted,
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`/s/ Sean T. O’Kelly (with permission)
`Sean T. O’Kelly
`824 N. Market Street, Suite 1001A
`Wilmington, Delaware 19801
`Tel.: (302) 778-4000
`Fax: (302) 295-2873
`sokelly@oelegal.com
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`and
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`O’ROURKE LAW OFFICE, LLC
`Gerard M. O'Rourke
`1201 N. Orange Street
`Suite 7260
`Wilmington, DE 19801-1186
`(484) 770-8046
`gorourke@orourkefirm.com
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`Attorneys for Plaintiffs e-Numerate
`Solutions, Inc. and e-Numerate LLC
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`Case 1:19-cv-00859-RTH Document 48 Filed 04/16/21 Page 5 of 5
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`Dated: April 16, 2021
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`Of Counsel:
`SCOTT BOLDEN
`NELSON KUAN
`Department of Justice
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`ELIZABETH MCFADDEN
`Deputy General Counsel
`GEORGE C. BROWN
`Assistant General Counsel
`Office of the General Counsel
`U.S. Securities and Exchange
`Commission
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`Respectfully submitted,
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`BRIAN M. BOYNTON
`Acting Assistant Attorney General
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`GARY L. HAUSKEN
`Director
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`s/ Shahar Harel
`SHAHAR HAREL
`Trial Attorney
`Commercial Litigation Branch
`Civil Division
`Department of Justice
`Washington, DC 20530
`Email:
`Shahar.Harel@USDOJ.gov
`Telephone:
`(202) 305-3075
`Facsimile:
`(202) 307-0345
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`COUNSEL FOR THE UNITED STATES OF
`AMERICA
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