Case 1:16-cv-00455-RGA Document 176 Filed 07/06/17 Page 1 of 14 PageID #: 16801
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`C.A. No. 16-453 (RGA)
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`REDACTED
`PUBLIC VERSION
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`C.A. No. 16-454 (RGA)
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`REDACTED
`PUBLIC VERSION
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`C.A. No. 16-455 (RGA)
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`REDACTED
`PUBLIC VERSION
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`)))))))))
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`)))))))))
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`)))))))))))
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`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
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`ACTIVISION BLIZZARD, INC.
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`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.
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`DEFENDANTS’ REPLY BRIEF IN SUPPORT OF MOTION TO STRIKE ACCELERATION
`BAY’S UNTIMELY DISCLOSED PROPOSED CLAIM CONSTRUCTIONS
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`OF COUNSEL:
`Michael A. Tomasulo
`Gino Cheng
`David K. Lin
`Joe S. Netikosol
`WINSTON & STRAWN LLP
`333 South Grand Avenue, 38th Floor
`Los Angeles, CA 90071
`(213) 615-1700
`
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`Jack B. Blumenfeld (#1014)
`Stephen J. Kraftschik (#5623)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899
`(302) 658-9200
`jblumenfeld@mnat.com
`skraftschik@mnat.com
`Attorneys for Defendants
`
`

`

`Case 1:16-cv-00455-RGA Document 176 Filed 07/06/17 Page 2 of 14 PageID #: 16802
`
`David P. Enzminger
`WINSTON & STRAWN LLP
`275 Middlefield Road, Suite 205
`Menlo Park, CA 94025
`(650) 858-6500
`
`Dan K. Webb
`Kathleen B. Barry
`WINSTON & STRAWN LLP
`35 West Wacker Drive Chicago,
`IL 60601
`(312) 558-5600
`
`Krista M. Enns
`WINSTON & STRAWN LLP
`101 California Street, 35th Floor
`San Francisco, CA 94111 (415)
`591-1000
`
`Michael M. Murray
`WINSTON & STRAWN LLP
`200 Park Avenue,
`New York, NY 10166
`(212) 294-6700
`
`Original Filing Date: June 21, 2017
`Redacted Filing Date: July 6, 2017
`
`

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`Case 1:16-cv-00455-RGA Document 176 Filed 07/06/17 Page 3 of 14 PageID #: 16803
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`Plaintiff’s opposition brief argues that its conduct was proper and routine, and that it was
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`Defendants’ identification of “too many terms” that led to Plaintiff’s refusal to meet and confer or
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`exchange its positions. But the record shows that Plaintiff’s failure to participate in the Court-
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`Ordered claim construction process prevented the parties from identifying, much less resolving
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`disputes. Plaintiff’s position that all terms carry their “plain and ordinary meaning” is clearly
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`belied by its reliance on more than 50 pages of expert testimony to explain “plain and ordinary
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`meaning.” But no expert testimony would have been necessary if what Plaintiff were actually
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`relying on was plain and ordinary meaning.
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`Plaintiff’s conduct was tactical and prejudiced not only the Defendants, but also this Court.
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`Since at least the Federal Circuit’s decisions O2 Micro and Eon, all patent litigants have
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`understood active claim construction disputes must be resolved by the Court before trial. To aid in
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`this task, this Court, like most courts, sets a schedule for claim construction which orders the
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`parties to disclose their positions so that the Court can resolve claim construction disputes on the
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`timeline provided by the Scheduling Order. Since at least Phillips, the principal dispute about
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`claim construction is over what is the “plain and ordinary” meaning of the claim term in light of
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`the specification. Phillips does not give any party the right to withhold its positions under the
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`guise of plain and ordinary meaning. Indeed, Plaintiff’s position would eviscerate the letter and
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`spirit of the Court’s standard claim construction Order.
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`Plaintiff’s conduct was intended to and has been an end run around that Court-ordered
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`process. Plaintiff argues that it did not actually propose constructions in the expert report, and
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`therefore complied with the Scheduling Order. This argument is plainly incorrect, but also misses
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`the point. Until the actual briefing process, Plaintiff concealed its claim construction positions and
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`also concealed the fact that it was actively disputing every claim term and basing its case on re-
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`1
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`Case 1:16-cv-00455-RGA Document 176 Filed 07/06/17 Page 4 of 14 PageID #: 16804
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`written claims. Indeed, Plaintiff’s Opening Claim Construction Brief and its supporting expert
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`declaration show that Plaintiff uses the guise of “plain and ordinary meaning” to interpret the
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`claims in a manner that would eviscerate all meaningful limitations, and especially the very
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`limitations the Applicants added to overcome prior art rejections. Plaintiff now says under its view
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`of “plain and ordinary meaning,” that “m” can change at any time, selective network participants
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`can be ignored to determine if the network is “m-regular,” “m-regular” can occur coincidentally
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`and ephemerally, and the network need not be both m-regular and incomplete. A review of the
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`chart of Plaintiff’s belatedly disclosed positions shows that they are all claim constructions that
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`should have been disclosed. Plaintiff has no explanation for why it failed to timely and properly
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`disclose all of these claim construction positions. Indeed, showing no remorse at all, Plaintiff’s
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`Reply Brief proposed yet another undisclosed construction, this time for the key term, “computer
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`readable medium,” for which its expert offers a lengthy construction that adds new limitations
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`under the guise of plain and ordinary meaning. Plaintiff’s conduct in proposing even more
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`constructions through its Reply Brief further confirms that sanctions are appropriate.
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`I.
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`Plaintiff Changed Its Positions And Offered Constructions, Not Just Plain And
`Ordinary Meaning, For The Forty-Six Terms.
`Although Plaintiff vehemently argues that it did not change its position for the forty-six
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`terms, the record completely belies Plaintiff’s argument. There is no question that the parties have
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`extensively disputed the meaning and scope of the claims from the very beginning as reflected in
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`the numerous motions to compel infringement contentions, for sanctions based on violations of
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`Rule 11, and for dismissal based on lack of patentable subject matter. As a result, Plaintiff knew
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`the parties disagreed about the meaning of critical claim terms and that those terms had to be
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`construed. By claiming “plain and ordinary meaning” for all of those terms and maintaining that
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`position in all of the required disclosures, Plaintiff withdrew the right to argue about the meanings
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`2
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`Case 1:16-cv-00455-RGA Document 176 Filed 07/06/17 Page 5 of 14 PageID #: 16805
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`of those terms and its brief and expert declaration should be stricken.
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`The Federal Circuit has explained that “[w]hen the parties raise an actual dispute regarding
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`the proper scope of these claims, the court, not the jury, must resolve that dispute.” O2 Micro Int'l
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`Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1360 (Fed. Cir. 2008). A party’s failure to
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`properly participate in the claim construction process can constitute bad faith. Eon-Net LP v.
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`Flagstar Bancorp, 653 F.3d 1314, 1325 (Fed. Cir. 2011). “[T]he ‘simultaneous’ submission
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`requirement applied to claims construction briefing schedules is not without purpose. It is
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`intended, in part, to have the parties submit their respective positions on disputed terms without the
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`luxury of the opposing parties’ papers.” Shire LLC v. Amneal Pharm., LLC, 2013 WL 1932927, at
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`*12 (D.N.J. May 7, 2013). Here, there is no doubt that Plaintiff ignored and disregarded these
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`fundamental principles.
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`As an initial matter, Plaintiff knew long before Defendant submitted its list of terms for
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`construction that there were issues concerning the plain and ordinary meaning for terms in the
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`patents. Indeed, Defendants would have had no purpose in proposing these terms for construction
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`if the parties agreed on the plain and ordinary meaning, as that is the default construction for every
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`term. Phillips v. AWH Corp., 415 F.3d 1303, 1312–13 (Fed. Cir. 2005). In only offering plain and
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`ordinary meaning, Plaintiff’s purpose was to have a strategic advantage of considering and reacting
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`to Defendants’ constructions without providing Plaintiff’s constructions. Such gamesmanship is
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`contrary to the claim construction process and results in Courts striking submissions that would
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`allow one party to benefit from such behavior. See Shire LLC, 2013 WL 1932927, at *12; see also
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`Ex. A (contemplating not only striking untimely disclosed proposed claim constructions but also
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`revoking pro hac vice status of attorneys involved).
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`Plaintiff’s claim construction briefing and expert declaration shows that Plaintiff was acting
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`3
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`Case 1:16-cv-00455-RGA Document 176 Filed 07/06/17 Page 6 of 14 PageID #: 16806
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`with an improper purpose in mind. Under the guise of “plain and ordinary meaning,” Plaintiff
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`offers actual constructions and claims that the disputed claim terms either require or do not require
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`certain meanings. See, e.g., Ex. B at 13-16; Ex. C ¶¶ 82, 89-90, 92-93, 99, 102-03, 105-07, 109-
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`10, 113, 116-17, 120, 124-26, 129-30, 137-38, 140-41. Plaintiff’s brief and expert declaration
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`clearly propose claim constructions beyond “plain and ordinary” or the expert declaration would
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`not have been necessary. See id. In this case, Plaintiff’s delay gave it the opportunity to see and
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`review Defendants’ constructions before responding. This advantage was not contemplated by the
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`Court’s order, which envisioned a mutual exchange to provide neither party with any advantage.
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`The term computer readable medium is an excellent example of a term in which Plaintiff
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`has changed its position and now offered a claim construction. Plaintiff’s original position was
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`that computer readable medium required no construction and could be understood by its plain and
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`ordinary meaning. Now upon the realization that the plain and ordinary meaning of computer
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`readable meaning invalidates the claims (see, e.g., Ex. D), Plaintiff now insists that computer
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`readable medium is limited to physical storage—an additional limitation found nowhere in the
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`claim or specification. Plaintiff describes this concept with the following lengthy construction
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`offered by its expert: “a non-fleeting medium for storing instructions and data that a computer can
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`read, such as hard disks, random access memory, read only memory, DVDs, CD-ROMs, USB
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`drives, etc.” Ex. E ¶¶ 165-166. Obviously, such a lengthy construction adding new limitations,
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`based solely on the alleged “professional experience” of Plaintiff’s expert is not “plain and
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`ordinary meaning.”
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`In another effort to justify its delayed constructions in violation of the claim construction
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`order, Plaintiff claims that the number of terms for construction should be limited to 10. Opp’n at
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`10-11. This argument is also flawed. Any limitation on the number of claims for construction is
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`4
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`Case 1:16-cv-00455-RGA Document 176 Filed 07/06/17 Page 7 of 14 PageID #: 16807
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`not a basis to simply claim that all additional terms should have plain and ordinary meaning.
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`Further, the cases cited by Plaintiff reflect the parties engaging in a proper meet and confer and
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`working to narrow the issues. Plaintiff refused to participate in a proper meet and confer, and thus,
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`Defendants could not further narrow the disputed claim terms. Additionally, Plaintiff had been
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`asserting 32 claims across six asserted patents. Those claims include 8 means-plus-function terms,
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`which Plaintiff admits require proposed constructions. Opp’n at 14. Further, there are numerous
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`additional key limitations throughout the claims that require construction including but not limited
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`to the following “m-regular,” “m-connected,” “incomplete,” “computer readable medium,”
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`“neighbor,” “participant,” and “peer.” With only 10 terms and 8 of those terms the means-plus-
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`function terms, the parties would not have the Court’s guidance on key disputed issues.
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`II.
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`Acceleration Bay Admitted That It Changed Its Constructions Of The Key Terms
`“M-Regular” and “M-Connected.”
`Plaintiff’s attempts to characterize its belated and incomplete disclosure of the central “m-
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`regular” and “m-connected” constructions as simply a good faith response to Defendants’
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`constructions, which Plaintiff says contradicts Defendants’ earlier position on the terms. This is
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`incorrect. “M-regular” and “m-connected” are key terms and have no plain and ordinary meaning
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`divorced from the specification. Moreover, Plaintiff waited until two days before the joint claim
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`chart was due, and nine days after it received Defendants’ construction, before proposing its
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`incomplete and belated constructions. Even then, Plaintiff refused to meet and confer on those
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`tardy constructions.
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`Plaintiff was not making a good faith response because, since at least April 5, 2016,
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`Plaintiff has known that the parties disagree on the construction of “m-regular” and “m-
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`connected.” Indeed, Defendants filed a declaration of their expert David Karger with a motion to
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`compel on April 5, 2016. Dr. Karger’s declaration explained that the asserted patents had to
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`5
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`Case 1:16-cv-00455-RGA Document 176 Filed 07/06/17 Page 8 of 14 PageID #: 16808
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`maintain the key feature of an m-regular incomplete network to meet the limitations of the claims.
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`Ex. F at 14-16. Further, Activision’s Opening Brief Supporting Rule 11 sanctions, served on
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`January 18, 2017, expressly stated that “The applicants specifically disclaimed networks that only
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`meet the Topology Limitations by chance or in a transient way.” C.A. 16-453, D.I. 50 at 7. In
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`other words, the claimed networks had to maintain an m-regular incomplete network. Plaintiff’s
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`opposition recognized that the parties had this dispute stating: “Activision’s argument—that it
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`cannot infringe because the accused networks are not always m-regular—fails for multiple reasons.
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`First, this argument is based on a very narrow claim construction and the parties have yet to even
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`exchange proposed construction positions.” C.A. 16-453, D.I. 68 at 13-14. Plaintiff’s suggestion
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`that it was making a good faith response to Defendants’ offered constructions is simply wrong.
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`To bolster its supposed good faith response, Plaintiff claims that Defendants changed their
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`constructions between the IPRs and this case. As a matter of law, Plaintiff is wrong. Defendants
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`were required to identify and did identify the broadest reasonable construction for the IPR. These
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`broadest reasonable construction for the IPR proceeding are necessarily broader than constructions
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`offered in district court. In re Cuozzo Speed Techs., LLC, 793 F.3d 1268, 1277-79, 1286–87 (Fed.
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`Cir. 2015) (“Broadest reasonable interpretation is an examination expedient [including during IPR
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`proceedings], not the law of claim construction”); see also, Cuozzo Speed Techs., LLC v. Lee, 136
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`S. Ct. 2131, 2146, 195 L. Ed. 2d 423 (2016). Given the difference in the legal standard, Plaintiff
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`could not and did not reasonably expect that the exact same constructions met both standards. Any
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`suggestion that Plaintiff’s response to Defendants’ proposed construction was a good faith attempt
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`at compromise is belied by this clear record.
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`III.
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`Plaintiff Did Not Comply With Its Meet And Confer Obligations.
`Plaintiff did not comply with its meet and confer obligations regarding claim. The very
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`purpose of the meet and confer process is to explore the possibility of narrowing the parties’
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`6
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`Case 1:16-cv-00455-RGA Document 176 Filed 07/06/17 Page 9 of 14 PageID #: 16809
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`disputes either by agreeing to constructions of certain terms or focusing the area of dispute.
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`Plaintiff choose to have an able lawyer, who admitted to not being a member of the “tech team,”
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`conduct the meet and confer on the technical issues involving claim construction even though that
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`lawyer was admittedly not prepared.
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`Plaintiff’s denials of these facts are not supported. For instance, Plaintiff claims to have
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`addressed all issues regarding the terms “m-regular” and “m-connected.” As reflected in the
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`Opposition, Plaintiff did not explain what constructions it would offer for those terms, how they
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`were different from those proposed by defendants, or where its constructions were supported in the
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`record. Opp’n at 3-5. Further, although the parties discussed several terms, which Defendants
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`contended were indefinite, and the terms computer and network, Plaintiff refused to engage in an
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`actual discussion to try to identify and narrow any disputes. For every term which Plaintiff
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`asserted plain and ordinary meaning, Plaintiff refused to explain if or how it contended “plain and
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`ordinary meaning” constructions differed from Defendants’ proposed constructions. Thus, until
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`Defendants received Plaintiff’s opening brief and the expert report containing Plaintiff’s
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`constructions, Defendants could not even be certain how many of these terms were disputed
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`because Plaintiff’s counsel declined to say how the defendant’s constructions differed from plain
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`and ordinary meaning. If Plaintiff had actually believed it was offering “plain and ordinary
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`meaning” it would not have needed more than 50 pages of expert declaration purporting to explain
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`English based solely on an expert’s “professional experience.”
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`Plaintiff’s failure to meet and confer is consistent with its overall view that it need not
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`explain its infringement theories in response to Defendants’ interrogatories. Defendants have
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`moved to compel on three occasions to provide sufficient responses to Defendants’ interrogatories
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`regarding infringement. Although the Special Master granted all of Defendants’ motions,
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`7
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`Case 1:16-cv-00455-RGA Document 176 Filed 07/06/17 Page 10 of 14 PageID #: 16810
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`Plaintiff’s responses remain deficient, and Defendants still do not have a clear statement of
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`Plaintiff’s infringement theory. See, e.g., Ex’s. H and I. Based on Plaintiff’s past deficiencies,
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`Defendants had highlighted for Plaintiff the problem with not complying with the meet and confer
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`requirement.
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`IV.
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`Sanctions Are Warranted Because Plaintiff Failed To Comply With The Court’s
`Order.
`Plaintiff’s conduct in withholding its claim construction positions was pure gamesmanship
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`and with blatant disregard to the Court’s Scheduling Order. In an effort to avoid sanctions,
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`Plaintiff claims that courts have not sanctioned more egregious conduct. As explained above,
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`Plaintiff has grossly mischaracterized its own conduct. The record reflects Plaintiff’s disregard for
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`the Court’s scheduling order and the process of a mutual exchange of positions.
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`The Plaintiff’s cited authority offers no help to its arguments. In Magnetar Techs. Corp. v.
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`Six Flags Theme Parks, Inc., Judge Stark addressed in a footnote Plaintiff’s motion to strike four
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`terms proposed for construction not in compliance with the scheduling order. There, Plaintiff had
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`multiple opportunities to address the newly proposed constructions. Those circumstances are very
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`different from the circumstances in this case. Here, Defendants immediately raised with Plaintiff
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`the issue of not providing constructions. Rather than promptly correcting the situation, Plaintiff
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`delayed and then sand-bagged with more than 50 pages of expert declarations for more than 50
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`terms after the constructions were due. Plaintiff further failed to participate in the claim
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`construction process. These circumstances are substantially more egregious than in Magnetar.
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`Plaintiff’s reliance on NuVasive, Inc. v. Globus Med., Inc. is also misplaced. In that case,
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`Plaintiff Nuvasive initially argued that “simply reading the[] claims provides strong support for its
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`position that construction is unnecessary.” 2013 WL 3705731, at *3 (D. Del. July 12, 2013). The
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`court properly recognized that such a statement was not supported and “was entirely unhelpful to
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`8
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`Case 1:16-cv-00455-RGA Document 176 Filed 07/06/17 Page 11 of 14 PageID #: 16811
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`the Court and prejudicial to Globus.” Id. As a result, the court directed that Plaintiff remedy its
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`deficiencies through additional submissions. Id. The court did not award sanctions because there
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`was no bad faith and the process was corrected. Here, as explained in detail, Plaintiff acted in bad
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`faith and failed to participate in the process. Further, when Defendants brought this situation to
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`Plaintiff’s attention and demanded that the situation be corrected, Plaintiff ignored Defendants’
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`request and refused to correct the issues. Thus, these facts are very different from NuVasive, Inc. v.
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`Globus Med., Inc. and warrant sanctions.
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`Plaintiff’s reliance on V. Mane Fils is also misplaced. Although there was violation of the
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`scheduling order, the allegedly aggrieved party had known for a year about the full extent of the
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`infringement contentions. V.Mane Fils S.A. v. Int'l Flavors & Fragrances, Inc., No. CIV.A. 06-
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`2304 FLW, 2011 WL 1344193, at *7 (D.N.J. Apr. 8, 2011). Defendants have been rigorously
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`trying to get Plaintiff to state its infringement theories and to explain its proposed constructions.
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`But there can be no dispute that Plaintiff waited until its opening brief and 50 page expert report to
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`disclose its constructions.
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`Plaintiff’s conduct is very much like the Via Vadis case. Plaintiff submitted its claim
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`construction positions, not concurrently with Defendants as required by the Scheduling Order, but
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`instead, later through an Expert Declaration. In striking portions of an Expert Report based on the
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`Pennypack factors, Courts have reiterated that simultaneous exchange requirements are important
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`in preserving the fairness of the process. See, e.g., Shire LLC v. Amneal Pharm., LLC, 2013 WL
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`1932927, at *12 (D.N.J. May 7, 2013) (“This Court again notes that the “simultaneous” submission
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`requirement applied to claims construction briefing schedules is not without purpose. It is intended,
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`in part, to have the parties submit their respective positions on disputed terms without the luxury of
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`the opposing parties' papers.”).
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`9
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`Case 1:16-cv-00455-RGA Document 176 Filed 07/06/17 Page 12 of 14 PageID #: 16812
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`Plaintiff’s conduct has prejudiced Defendants because Plaintiff’s actual claim construction
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`positions were only first disclosed in an expert report, which is remarkable in and of itself, because
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`Plaintiff contended every term should be accorded its “plain and ordinary meaning,” which would
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`have required no expert report at all. The reason for more than 50 pages of expert declarations was
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`that the Plaintiff’s constructions are not “plain and ordinary meaning” and they were withheld from
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`the Defendants throughout the process. This behavior is part of a larger pattern of behavior by the
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`Plaintiff to conceal the basis for its claims, such as its non-compliance with multiple motions to
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`compel infringement contentions. See, e.g., Ex’s. H and I.
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`The refusal to comply with the court’s claim construction process is part and parcel
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`of Plaintiff’s attempt to obfuscate its positions to prejudice the Defendants. Thus, because both
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`prejudice and bad faith exist here, sanctions are warranted.
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`V.
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`Conclusion
`In conclusion, Plaintiff has violated this court’s order and refused to participate
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`meaningfully in the meet and confer process for claim construction. As a result, Defendants’
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`motion should be granted; Plaintiff’s conduct should be sanctioned; and Plaintiff’s claim
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`construction brief and expert declaration stricken.
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`10
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`Case 1:16-cv-00455-RGA Document 176 Filed 07/06/17 Page 13 of 14 PageID #: 16813
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`OF COUNSEL:
`Michael A. Tomasulo
`Gino Cheng
`David K. Lin
`Joe S. Netikosol
`WINSTON & STRAWN LLP
`333 South Grand Avenue, 38th Floor
`Los Angeles, CA 90071
`(213) 615-1700
`
`David P. Enzminger
`WINSTON & STRAWN LLP
`275 Middlefield Road, Suite 205
`Menlo Park, CA 94025
`(650) 858-6500
`
`Dan K. Webb
`Kathleen B. Barry
`WINSTON & STRAWN LLP
`35 West Wacker Drive
`Chicago, IL 60601
`(312) 558-5600
`
`Krista M. Enns
`WINSTON & STRAWN LLP
`101 California Street, 35th Floor
`San Francisco, CA 94111
`(415) 591-1000
`
`Michael M. Murray
`WINSTON & STRAWN LLP
`200 Park Avenue,
`New York, NY 10166
`(212) 294-6700
`
`June 21, 2017
`
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`
`/s/ Stephen J. Kraftschik
`__________________________________
`Jack B. Blumenfeld (#1014)
`Stephen J. Kraftschik (#5623)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899
`(302) 658-9200
`jblumenfeld@mnat.com
`skraftschik@mnat.com
`
`Attorneys for Defendants
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`11
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`Case 1:16-cv-00455-RGA Document 176 Filed 07/06/17 Page 14 of 14 PageID #: 16814
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`CERTIFICATE OF SERVICE
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`I hereby certify that on July 6, 2017, I caused the foregoing to be electronically
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`filed with the Clerk of the Court using CM/ECF, which will send notification of such filing to
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`all registered participants.
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`I further certify that I caused copies of the foregoing document to be served on
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`July 6, 2017, upon the following in the manner indicated:
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`Philip A. Rovner, Esquire
`Jonathan A. Choa, Esquire
`POTTER ANDERSON & CORROON LLP
`1313 North Market Street, 6th Floor
`Wilmington, DE 19801
`Attorneys for Plaintiff
`
`Paul J. Andre, Esquire
`Lisa Kobialka, Esquire
`James R. Hannah, Esquire
`Hannah Lee, Esquire
`Yuridia Caire, Esquire
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Attorneys for Plaintiff
`
`Aaron M. Frankel, Esquire
`Marcus A. Colucci, Esquire
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`1177 Avenue of the Americas
`New York, NY 10036
`Attorneys for Plaintiff
`
`VIA ELECTRONIC MAIL
`
`VIA ELECTRONIC MAIL
`
`VIA ELECTRONIC MAIL
`
`/s/ Stephen J. Kraftschik
`Stephen J. Kraftschik (#5623)
`
`