`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`C.A. No. 15-228 (RGA)
`
`C.A. No. 15-282 (RGA)
`
`C.A. No. 15-311 (RGA)
`
`C.A. No. 16-453 (RGA)
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`)))))))))
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`))))))))) )))))))))))
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`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`ACTIVISION BLIZZARD, INC.,
`
`Defendant.
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`ELECTRONIC ARTS INC.,
`
`Defendant.
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`TAKE-TWO INTERACTIVE SOFTWARE,
`INC., ROCKSTAR GAMES, INC. and
`2K SPORTS, INC.,
`
`Defendants.
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`ACTIVISION BLIZZARD, INC.,
`
`Defendant.
`
`PLAINTIFF ACCELERATION BAY LLC’S SUR-REPLY
`IN OPPOSITION TO DEFENDANTS’ MOTION FOR ATTORNEYS’ FEES
`
`
`
`Case 1:15-cv-00311-RGA Document 163-1 Filed 08/23/16 Page 2 of 4 PageID #: 5107
`
`Philip A. Rovner (#3215)
`Jonathan A. Choa (#5319)
`POTTER ANDERSON & CORROON LLP
`Hercules Plaza
`P.O. Box 951
`Wilmington, DE 19899
`(302) 984-6000
`provner@potteranderson.com
`jchoa@potteranderson.com
`
`Attorneys for Plaintiff Acceleration Bay LLC
`
`OF COUNSEL:
`
`Paul J. Andre
`Lisa Kobialka
`James R. Hannah
`KRAMER LEVIN NAFTALIS
`& FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`(650) 752-1700
`
`Aaron M. Frankel
`KRAMER LEVIN NAFTALIS
`& FRANKEL LLP
`1177 Avenue of the Americas
`New York, NY 10036
`(212) 715-9100
`
`Dated: August 23, 2016
`
`
`
`Case 1:15-cv-00311-RGA Document 163-1 Filed 08/23/16 Page 3 of 4 PageID #: 5108
`
`Plaintiff Acceleration Bay LLC respectfully files this sur-reply in further opposition to
`
`Defendants’ Motion For Attorneys’ Fees. (C.A. No. 15-228-RGA, D.I. 157). In their reply
`
`brief, Defendants cite for the first time TufAmerica, Inc. v. Diamond, 12-cv-3529-AJN, 2016 WL
`
`3866578 (S.D.N.Y. July 12, 2016), which issued after Defendants filed the instant motion.
`
`Defendants rely heavily on TufAmerica as supporting their argument that they are the
`
`prevailing parties, even though they have not received any final determination in their favor.
`
`See C.A. No. 15-228-RGA, D.I. 165 at 1, 2, 7. In TufAmerica, the court denied the plaintiff’s
`
`motion for reconsideration of a fee award. Significantly, the court found that the plaintiff
`
`“waived the argument that Defendants were not prevailing parties” by not raising it in opposition
`
`to Defendants’ motion for fees. Id., at *1. In a footnote, which Defendants quote, the court
`
`simply noted that plaintiff’s argument, “briefly considered, appears to be without merit.” Id., at
`
`n. 1. Thus, by the court’s own admission, it did not give great consideration to whether the
`
`defendants were prevailing parties. Therefore, this dicta should be given no weight.
`
`In addition, the facts of the underlying opinion, TufAmerica, Inc. v. Diamond, 12-cv-
`
`3529-AJN, 2016 WL 1029553, (S.D.N.Y. Mar. 9, 2016), further demonstrate its irrelevance to
`
`Defendants’ motion. First, the court’s decision in TufAmerica appears to be based on a lack of
`
`constitutional standing, not prudential standing, as was the case here. Second, there is no
`
`indication that the court gave plaintiff an opportunity to cure prudential standing by joining
`
`additional parties, as the Court did here. Finally, there is no indication that the defendants in
`
`TufAmerica saw the need to file mirror declaratory judgment actions after allegedly becoming
`
`the “prevailing party,” as Defendants did here.
`
`Nor is TufAmerica relevant to whether Acceleration Bay acted reasonably. In
`
`TufAmerica, the court found that the plaintiff acted unreasonably in pursuing a copyright
`
`infringement claim where “the deficiencies of the agreements cited by Plaintiff as conveying an
`
`exclusive license were readily apparent, rendering its claim ‘clearly without merit’ and
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`‘objectively unreasonable,’” where “one co-owner was not a signatory to one agreement
`
`purporting to convey an exclusive license,” and a second agreement only “conveyed a bare right
`
`
`
`Case 1:15-cv-00311-RGA Document 163-1 Filed 08/23/16 Page 4 of 4 PageID #: 5109
`
`to sue,” not an exclusive license. Id. at *2. The circumstances are markedly different here,
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`where both parties to the agreement intended to transfer all substantial rights to the patents-in-
`
`suit and the Court’s determination that Acceleration Bay lacked prudential standing involved
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`consideration of a multi-factor analysis, not a bright line test. See C.A. No. 15-228-RGA, D.I.
`
`162 at 10-15.
`
`Finally, TufAmerica supports Acceleration Bay’s opposition in noting that “the purposes
`
`of the Copyright Act are served when ‘close infringement cases are litigated. For this reason,
`
`district courts are disinclined to award fees in cases that are close calls or which present novel
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`legal issues or theories.” TufAmerica, 2016 WL 1029553, at *2.
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`For all these reasons, TufAmerica does not support Defendants’ Motion, which should be
`
`denied.
`
`POTTER ANDERSON & CORROON LLP
`
`By: /s/ Philip A. Rovner
`Philip A. Rovner (#3215)
`Jonathan A. Choa (#5319)
`Hercules Plaza
`P.O. Box 951
`Wilmington, DE 19899
`(302) 984-6000
`provner@potteranderson.com
`jchoa@potteranderson.com
`
`Attorneys for Plaintiff Acceleration Bay LLC
`
`OF COUNSEL:
`
`Paul J. Andre
`Lisa Kobialka
`James R. Hannah
`KRAMER LEVIN NAFTALIS &
`FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`(650) 752-1700
`
`Aaron M. Frankel
`KRAMER LEVIN NAFTALIS &
`FRANKEL LLP
`1177 Avenue of the Americas
`New York, NY 10036
`(212) 715-9100
`
`Dated: August 23, 2016
`1231647/42020
`
`2