`
`1313 North Market Street
`P.O. Box 951
`Wilmington, DE 19899-0951
`302 984 6000
`www.potteranderson.com
`
`Philip A. Rovner
`Partner
`provner@potteranderson.com
`(302) 984-6140 Direct Phone
`(302) 658-1192 Fax
`
`September 16, 2016
`
`BY CM/ECF & HAND DELIVERY
`
`The Honorable Richard G. Andrews
`U.S. District Court for the District of Delaware
`U.S. Courthouse
`844 North King Street
`Wilmington, DE 19801
`
`Re:
`
`Acceleration Bay LLC v. Activision Blizzard, Inc. et al.
`D. Del., C.A. No. 15-228-RGA, 15-282-RGA, 15-311-RGA
`
`Dear Judge Andrews:
`
`Pursuant to Local Rule 7.1.2(b), Plaintiff Acceleration Bay writes to inform the Court
`about the Northern District of California’s order transferring the declaratory judgment actions
`filed by Defendants against Acceleration Bay to the District of Delaware (the “Order”). The
`Order, issued on September 1, 2016, further supports denying Defendants’ motion for attorneys’
`fees in the above-captioned actions (e.g., D.I. 161 in C.A. No. 15-228).
`
`In the Order, Judge Richard Seeborg found that Acceleration Bay’s
`
`re-filed complaints functionally amended the co-pending 2015
`Delaware complaints, and the amendments effectively relate back
`to the original pleadings, such that AB’s current Delaware actions
`were first-filed. As the parties and issues are also the same,
`transfer of the Northern California actions is warranted under the
`first-to-file rule.
`
`Order at 9 (emphasis added). Based on Judge Seeborg’s holding that the issues and parties are
`the same in the 2015 and 2016 Acceleration Bay actions, there is no requisite “material alteration
`of the legal relationship of the parties necessary to permit an award of attorney’s fees.”
`Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598,
`603-04 (2001). A copy of the Order is attached at Exhibit A for the Court’s convenience.
`
`
`
`Case 1:15-cv-00311-RGA Document 166 Filed 09/16/16 Page 2 of 2 PageID #: 5122
`
`The Honorable Richard G. Andrews
`September 16, 2016
`Page 2
`
`Respectfully,
`
`/s/ Philip A. Rovner
`
`Philip A. Rovner (#3215)
`
`PAR/mah/1233555
`cc:
`All Counsel of Record (Via ECF Filing, Electronic Mail)
`Attachment
`
`
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