Case 1:16-cv-00455-RGA Document 369 Filed 01/17/18 Page 1 of 14 PageID #: 24472
`Case 1:16-cv-00455-RGA Document 369 Filed 01/17/18 Page 1 of 14 PagelD #: 24472
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF DELAWARE
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`V.
`
`ACTIVISION BLIZZARD,INC.
`
`Defendant.
`
`ACCELERATION BAYLLC,
`
`Plaintiff,
`
`V.
`
`ELECTRONIC ARTSINC.,
`
`Defendant.
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`C.A. No. 16-453 (RGA)
`
`REDACTED
`
`PUBLIC VERSION
`
`C.A. No. 16-454 (RGA)
`
`REDACTED
`
`PUBLIC VERSION
`
`SSeeeeeeaee_aaee a_ea
`NeeSOa“aS“a”
`
`V.
`
`C.A. No. 16-455 (RGA)
`
`TAKE-TWO INTERACTIVE SOFTWARE,
`INC., ROCKSTAR GAMES,INC. and
`2K SPORTS,INC.,
`
`REDACTED
`
`PUBLIC VERSION
`
`Defendants.
`
`DEFENDANTS’ RESPONSE TO PLAINTIFF ACCELERATION BAY LLC’S
`OBJECTIONS TO SPECIAL MASTER ORDERNO.13
`
`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 MarketStreet
`P.O. Box 1347
`Wilmington, DE 19899
`(302) 658-9200
`jblumenfeld@munat.com
`skraftschik@munat.com
`
`Attorneysfor Defendants
`
`

`

`Case 1:16-cv-00455-RGA Document 369 Filed 01/17/18 Page 2 of 14 PageID #: 24473
`
`David P. Enzminger
`Louis L. Campbell
`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
`Anup K. Misra
`WINSTON & STRAWN LLP
`200 Park Avenue
`New York, NY 10166
`(212) 294-6700
`Andrew R. Sommer
`Thomas M. Dunham
`Michael Woods
`Joseph C. Masullo
`Paul N. Harold
`WINSTON & STRAWN LLP
`1700 K Street, N.W.
`Washington, DC 20006
`(202) 282-5000
`
`Original Filing Date: December 27, 2017
`Redacted Filing Date: January 17, 2018
`
`

`

`Case 1:16-cv-00455-RGA Document 369 Filed 01/17/18 Page 3 of 14 PageID #: 24474
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`I.
`
`INTRODUCTION
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`This Motion is about emails and other materials, including expert analysis, shared by
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`Acceleration Bay (“Acceleration”) with its then-prospective litigation funder, Hamilton Capital
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`(“Hamilton”). These diligence materials were provided for Hamilton’s pre-deal efforts to evaluate
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`whether to extend a
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` to Acceleration to purchase the Asserted Patents
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`and bring these suits. All the materials were disclosed to Hamilton
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`—and therefore before the existence of any
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`common interest between Acceleration and Hamilton.
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`Plaintiff argues that the emails are work product and privileged. Not only is this incorrect,
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`but Plaintiff forfeited any right to assert work product or privilege over these documents nearly two
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`years ago. In February 2016, Defendants moved for a privilege log of communications between
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`Hamilton and Acceleration. In opposing Defendants’ Motion, Acceleration represented to the Court
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`that there were “no exchanges of diligence information regarding the Asserted Patents between
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`Acceleration Bay and Hamilton Capital” and “nothing to log.” D.I. 340, Ex. C, Ex. 1 at 3; see also
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`D.I. 340, Ex. C, Ex. 2 at 60–61. Yet, as explained below and now admitted by Acceleration, it did
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`exchange diligence materials with Hamilton, including emails regarding the Asserted Patents and the
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`Accused Products. In fact, Acceleration now characterizes its pre-loan, pre-suit communications
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`with Hamilton as the “Diligence Emails.” D.I. 339 at 2 (“In connection with diligence for the
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`funding of these actions, outside counsel for Acceleration Bay (Kramer Levin) and its litigation
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`funder, Hamilton (Reed Smith), exchanged several emails (the ‘Diligence Emails’).”). By earlier
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`representing that there was “nothing to log,” Plaintiff waived any right to assert work product or
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`privilege over the materials.
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`Defendants learned of these materials independently. More than a year after Acceleration
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`denied that any diligence documents existed, Defendants uncovered publicly filed documents in a
`
`1
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`

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`Case 1:16-cv-00455-RGA Document 369 Filed 01/17/18 Page 4 of 14 PageID #: 24475
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`criminal case against the owners of Hamilton that revealed that Hamilton had hired Reed Smith to
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`evaluate the loan on its behalf. D.I. 340, Ex. C, Ex. 16 at 4. Defendants then served discovery on
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`Reed Smith. That discovery revealed eight pre-loan diligence email chains between Acceleration’s
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`attorneys and Reed Smith relating to the patents, Defendants, and the accused products. Attached to
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`these eight email chains were 16 references, many of which discussed the technology of the asserted
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`patents and Defendants’ products, two significant prior art references, and the supposedly highly-
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`confidential Boeing-Airbus Agreement.
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`Acceleration now admits that it “provided [documents] to Hamilton in connection with due
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`diligence,” characterizing them as the “Diligence Emails”; but it never squares that admission with
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`its February 2016 representation to this Court that there were “no exchanges of diligence
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`information” with Hamilton. Compare D.I. 339 at 1 with D.I. 340, Ex. C, Ex. 1 at 3.1 In objecting
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`to the Special Master’s Order that it produce the documents it withheld for nearly two years,
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`Acceleration raises arguments that this Court has already rejected, that were not raised before the
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`Special Master, or that are, in any event, meritless. Acceleration should have produced or at least
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`logged these documents long ago. By withholding these documents, Acceleration denied
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`Defendants’ early access to relevant references that could have clarified Acceleration’s allegations
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`and thereby prejudiced Defendants. Because all of these documents were exchanged prior to the
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`consummation of a deal between Acceleration and Hamilton, and before Acceleration even owned
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`the patents, no common interest existed and all privilege and work product protection has been
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`waived. Acceleration’s objections should be overruled.
`
`
`
`
`1 Despite multiple requests, Acceleration has never explained why it did not produce or log those
`Diligence Emails, saying only that it produced other materials. D.I. 340, Ex. B at 4–5, 50–51. It
`never explained how it made the February representation, or whether there was some reason for not
`producing or logging them. See D.I. 340, Ex. B. Nor do its Objections explain why.
`
`2
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`

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`Case 1:16-cv-00455-RGA Document 369 Filed 01/17/18 Page 5 of 14 PageID #: 24476
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`II.
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`NATURE AND STAGE OF PROCEEDINGS
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`On September 30, 2015, Defendants requested documents related to Acceleration’s
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`relationship with Hamilton. D.I. 340, Ex. C, Ex. 5. When Acceleration objected, Defendants moved
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`to compel a privilege log, arguing the documents could be relevant to issues including “patent
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`valuation, damages, royalty rates, and pre-suit investigative diligence.” D.I. 340, Ex. C, Ex. 7 at 3.
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`Acceleration responded that there was “nothing to log” and “that there have been no exchanges of
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`diligence information regarding the Asserted Patents between Acceleration Bay and Hamilton
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`Capital.” D.I. 340, Ex. C, Ex. 1 at 3 (emphasis added). The Court ruled that “the representation that
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`there’s nothing to log takes care of it for today.” D.I. 340, Ex. C, Ex. 2 at 61.
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`On March 3, 2017, Defendants again requested documents relating to Acceleration’s
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`communications with Hamilton. D.I. 340, Ex. C, Ex. 8 (RFP 139) at 8. Defendants again moved to
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`compel. D.I. 340, Ex. C, Ex. 11. The Special Master granted Defendants’ motion and ordered
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`Acceleration to respond fully to RFP 139. D.I. 340, Ex. C, Ex. 13 (SM Order No. 6) at 8–9.
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`Acceleration objected to the Special Master’s Order, asserting that it “requires Acceleration Bay to
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`produce its exchanges with Hamilton Capital, which are not relevant, contain work product and are
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`subject to common interest immunity.” D.I. 340, Ex. C, Ex. 14 at 2. The Court agreed with the
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`Special Master that Acceleration had to comply with the Special Master’s Order with respect to RFP
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`139 if it continued to assert that it was an “operating company.” D.I. 340, Ex. C, Ex. 15 at 2–3. The
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`Court also expressly rejected Acceleration’s claim of work product protection. Id. Acceleration has
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`since stated that it will advance its position that it is an “operating company.” See D.I. 340, Ex. C,
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`Ex. 17. After that Order, Defendants repeatedly requested that Acceleration produce “the diligence
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`documents between Acceleration Bay including its representatives and Hamilton Capital including
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`its representatives.” See D.I. 340, Ex. C, Ex. 17 at 1. Acceleration replied, “There are no such
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`documents.” Id. (emphasis added).
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`3
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`

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`Case 1:16-cv-00455-RGA Document 369 Filed 01/17/18 Page 6 of 14 PageID #: 24477
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`Just before the close of discovery, Defendants learned that Hamilton’s parent company had
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`been placed in receivership for alleged securities fraud. See D.I. 340, Ex. C, Ex. 16. The
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`receivership documents indicated that Hamilton had retained Reed Smith to provide diligence for the
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`loan to Acceleration before it was consummated. D.I. 340, Ex. C, Ex. 16 at 4. In September 2017,
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`in response to Defendants’ subpoena, Reed Smith produced a privilege log showing extensive
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`communications with Plaintiff’s litigation counsel. That log revealed that Acceleration’s litigation
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`counsel had, in fact, exchanged at least eight email chains, provided Reed Smith with at least two
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`dozen documents, and apparently had a meeting with Reed Smith to assist it with diligence for the
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`loan for Hamilton. Reed Smith explained to Defendants’ counsel that Reed Smith had received
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`“expert materials” from Acceleration to review in connection with its diligence efforts. All of these
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`communications occurred before Hamilton agreed to finance Acceleration in February 2015 and
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`before Acceleration actually acquired the patents from Boeing.2 D.I. 340, Ex. C, Ex. 3; D.I. 340,
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`Ex. C, Ex. 4.
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`Defendants again moved to compel. See D.I. 340, Ex. C. Acceleration, now aware that
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`Defendants had proof of the diligence documents’ existence, argued that the documents were
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`“irrelevant and subject to common interest.” D.I. 340, Ex. D at 7. Despite repeated requests,
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`Acceleration never explained why it had not produced the email attachments, which include prior art
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`documents, the Boeing-Airbus agreement, and articles about Defendants and their products. See D.I.
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`340, Ex. B at 9, 44–46. At the hearing, Acceleration tried to diminish the significance of the
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`withheld emails and attachments, arguing that the prior art was publicly available (as is nearly all
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`prior art) and that just one article mentioned the Accused Products. Id. at 51 (“There’s a passing
`
`
` but the closing did not occur until after
`2 The Purchase Agreement was executed
`Acceleration Bay and Hamilton reached the funding agreement. See D.I. 340, Ex. C, Ex. 11 at 148.
`Hamilton then wired Boeing to pay for the patents.
`
`4
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`

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`Case 1:16-cv-00455-RGA Document 369 Filed 01/17/18 Page 7 of 14 PageID #: 24478
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`reference to one of the games in one of the articles, and that’s it.”). But that, too, was incorrect. At
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`least six of the withheld documents identify an accused product by name and at least one confirms it
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`is a client/server system, as Defendants have argued all along. See Exs. 1–6; D.I. 340, Ex. C, Ex. 4.
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`The Special Master stated he was “concerned” that Acceleration might have been “essentially hiding
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`relevant documents.” D.I. 340, Ex. B at 16. The Special Master noted that Defendants’ “motion is
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`difficult to resolve without doubting Plaintiff’s representations,” found that Acceleration was “not
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`justif[ied] [in] not identifying or logging the documents,” and ordered it to produce the emails and
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`documents it had provided to Hamilton. See D.I. 340, Ex. A at 5–7.
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`III. ARGUMENT
`A. Acceleration’s communications with its prospective lender were not work product.
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`Acceleration forfeited its claim of work product protection by its “nothing to log”
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`representation to this Court in February 2016. See Pensacola Firefighters’ Relief Pension Fund Bd.
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`of Trustees v. Merrill Lynch Pierce Fenner & Smith, Inc., 265 F.R.D. 589, 592 (N.D. Fla. 2010)
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`(“[A] party claiming privilege is obliged to produce a privilege log and its failure to do so means the
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`privilege is waived.”).
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`Even if that were not the case, this Court has already rejected Acceleration’s bare assertion of
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`work product protection over communications with Hamilton. Further, Acceleration waived any
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`work product protection by not raising it in its brief to the Special Master. Lastly, Acceleration’s
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`newly claimed work product is for communications before the lender had agreed to the loan, before
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`Acceleration even owned the patents, and thus before Acceleration and Hamilton had any common
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`legal interest, making such a claim meritless.
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`This Court previously rejected a similar claim of work product protection months ago when it
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`overruled Acceleration’s objections to Special Master Order No. 6. The Court found that
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`Acceleration had failed to establish work product protection for communications between it and
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`5
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`

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`Case 1:16-cv-00455-RGA Document 369 Filed 01/17/18 Page 8 of 14 PageID #: 24479
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`Hamilton. D.I. 340, Ex. C, Ex. 15 at 2–3 (“Based on the submissions, I do not think Plaintiff has
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`done anything more than boldly assert Mr. Ward’s communications with his lender are work
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`product.”). Acceleration should not get multiple bites at the apple.
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`With its previous assertion of work product having been rejected by this Court, Acceleration
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`did not raise this argument in its brief to the Special Master. Instead, Acceleration argued that the
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`emails were “irrelevant” and “subject to common interest.” D.I. 340, Ex. D at 7–8.3 Although
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`Acceleration now claims that there is no “substantial need” for production of the emails—observing
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`that “the Order does not identify any such need”—it did not argue that in its earlier briefing. D.I.
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`340, Ex. D at 7–10. Nor did it cite to the Special Master several of the cases it now cites or assert
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`that the emails were “‘core’ work product that are afforded ‘near absolute protection from
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`discovery.’” D.I. 339 at 3. On all these points, Acceleration, “as the party asserting protection under
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`the work product doctrine,” has the burden, and it failed to assert the protection—or carry its
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`burden—before the Special Master. Ansell Healthcare Products LLC v. Reckitt Benckiser LLC, C.A.
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`No. 15-915-RGA, 2017 WL 6328149, at *4 (D. Del. Dec. 11, 2017).
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`In any event, the Diligence Emails are not eligible for work product protection. First, the
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`Diligence Emails were not prepared in anticipation of litigation. For a document to be work product,
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`“the primary purpose behind its creation [must be] to aid in possible future litigation.” Immersion
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`Corp. v. HTC Corp., C.A. No. 12-259-RGA, 2014 WL 3948021, at *2 (D. Del. Aug. 7, 2014)
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`(emphasis added). Acceleration admits that the Diligence Emails were created “for the purpose of
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`obtaining funding.” D.I. 339 at 3. Indeed they were created before Acceleration even owned the
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`patents. See D.I. 340, Ex. C, Ex. 11 at 148. Second, they were prepared for a non-party. “If the
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`3 In Acceleration Bay’s objections to Special Master Order No. 6, it asserted that “its exchanges
`with Hamilton Capital … are not relevant, contain work product and are subject to common
`interest immunity.” D.I. 340, Ex. C, Ex. 14 at 2 (emphasis added).
`
`6
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`

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`Case 1:16-cv-00455-RGA Document 369 Filed 01/17/18 Page 9 of 14 PageID #: 24480
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`document sought ‘is prepared for a nonparty to the litigation, work product protection does not
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`apply, even if the nonparty is a party to closely related litigation.’” Delaware Display Grp. LLC v.
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`Lenovo Grp. Ltd., Lenovo Holding Co., C.A. No. 13-2108-RGA, 2016 WL 720977, at *2 (D. Del.
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`Feb. 23, 2016) (quoting 6 Moore’s Federal Practice § 26.70 (3d ed. 2015)). The Diligence Emails
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`were prepared for Hamilton, a “non-part[y],” as part of its diligence on a prospective loan. D.I. 340,
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`Ex. A at 6. In sum, the Diligence Emails are not work product.
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`B. Acceleration’s communications with its prospective lender were not covered by the
`common interest doctrine.
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`Acceleration next objects that its communications with its prospective lender were covered
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`by the attorney-client privilege under the common interest doctrine. This objection, too, was waived
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`by the “nothing to log” representation and, in any event, is meritless.
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`Applying this Court’s decision in Delaware Display Group, the Special Master correctly
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`found that the Diligence Emails “were provided before any agreement was reached between Plaintiff
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`and Hamilton Capital, and before any litigation was filed,” and therefore Acceleration and Hamilton
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`“were not ‘allied in a common legal cause’ when the documents were provided.” D.I. 340, Ex. A at
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`7. Acceleration ignores this fact, and its Objections assume—contrary to the now indisputable
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`facts—that at the time of the emails, “Hamilton Capital [was] plaintiff’s litigation funder with a
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`financial interest in Acceleration Bay’s successful enforcement of the patents.” D.I. 339 at 6. To the
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`contrary, at that time, Hamilton had not yet agreed to fund Acceleration and thus “possesse[d] no
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`legal interest in the patents-in-suit” or in any potential litigation. Delaware Display Grp., 2016 WL
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`720977, at *5. Acceleration “bears the burden of establishing the privilege,” and has failed to carry
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`its burden. Id. at *2.
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`
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`
`
`7
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`

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`Case 1:16-cv-00455-RGA Document 369 Filed 01/17/18 Page 10 of 14 PageID #: 24481
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`C. The Diligence Emails are relevant.
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`Lastly, Acceleration asks the Court to find that the Special Master abused his discretion on
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`the issue of relevance.4 D.I. 339 at 7. This objection is also meritless. It is also foreclosed by this
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`Court’s September 5, 2017, Order that Acceleration respond to RFP 139, which requested
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`Acceleration’s communications with Hamilton about the asserted patents. See D.I. 340, Ex. C, Ex.
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`15 at 2; D.I. 340, Ex. C, Ex. 8 at 8 (RFP 139).
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`Acceleration concedes that the emails “relate[] to the asserted patents.” D.I. 339 at 2. This
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`suffices to establish their relevance. The Diligence Emails may be relevant to central issues like
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`validity and infringement, valuation, damages, royalty rates, pre-suit investigative diligence, and
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`whether Acceleration is an operating company. Common sense confirms the emails’ relevance:
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`Acceleration would not have been providing irrelevant information about the patents to its
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`prospective litigation financier to secure money to bring this case. A prospective lender’s due
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`diligence would likely include issues like validity, infringement, the value of the patents, and
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`whether they could be licensed or commercialized.
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`Acceleration glosses over the fact that the “attachments to the Diligence Emails” are
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`unquestionably relevant. D.I. 339 at 2 n.3. These unquestionably relevant attachments included (i)
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`the Asserted Patents and their file histories, (ii) the General Agreement between Airbus and Boeing,
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`(iii) at least two prior art references, and (iv) at least 14 other documents related to the technology of
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`the Asserted Patents, many of which reference the Accused Products by name. See D.I. 340, Ex. C,
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`Ex. 4. That the Diligence Emails had relevant attachments strongly suggests that the emails
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`themselves are relevant. Independent of that, where the attachments are relevant, the emails should
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`4 Because the relevance of the Diligence Emails concerns “the scope of discovery,” which is “a
`procedural matter,” this portion of the Special Master’s Order is reviewed for abuse of discretion.
`See Callwave Commc’ns LLC v. AT&T Mobility LLC, C.A. No. 12-1701-RGA, 2016 WL 3450736,
`at *1 & n.3 (D. Del. June 16, 2016).
`
`8
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`

`

`Case 1:16-cv-00455-RGA Document 369 Filed 01/17/18 Page 11 of 14 PageID #: 24482
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`be produced with them, both for the sake of “completeness” and because that is presumptively how
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`“they are kept in the usual course of business.” Abu Dhabi Commercial Bank v. Morgan Stanley &
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`Co. Inc., 2011 WL 3738979, at *5 (S.D.N.Y. Aug. 18, 2011).
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`Incredibly, the withheld references likely inspired Acceleration’s infringement theories. The
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`withheld prior art references show the very features that are accused of causing infringement.
`
`Compare D.I. 340, Ex. C, Ex. 21 (withheld prior art article showing games using dynamic load
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`balancing and “need to know” updating) with D.I. 340, Ex. C, Exs. 28, 29, 30 (alleging that the
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`accused products are m-regular through use of load balancing and proximity rules (aka “need to
`
`know” updating)). Acceleration’s withholding of these references prejudiced Defendants and
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`undercuts its assertion that the Diligence Emails are irrelevant.5
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`D. Acceleration should produce all material it provided to Hamilton, not just the
`Diligence Emails.
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`The Special Master’s Order was not limited to the Diligence Emails. It ordered Acceleration
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`“to produce what it provided in writing to Hamilton Capital or its counsel at the time of Hamilton
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`Capital’s due diligence.” D.I. 340, Ex. A at 7. Defendants now know that Acceleration provided at
`
`least the Diligence Emails and their attachments to Reed Smith. But it appears likely that these are
`
`merely a subset of what Acceleration disclosed to Hamilton.
`
`As noted, Acceleration’s litigation lawyers were in close contact with Reed Smith to
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`convince Reed Smith to sign off on the loan Acceleration was requesting to purchase the patents and
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`bring these suits.
`
`
`
`
`
` Reed Smith did not have an email record of receiving such materials. But the
`
`privilege log does refer to an in-person meeting. See D.I. 340, Ex. C, Ex. 3 (referencing “a proposed
`
`5 Defendants reserve the right to seek costs based on Acceleration’s withholding the documents.
`
`9
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`

`

`Case 1:16-cv-00455-RGA Document 369 Filed 01/17/18 Page 12 of 14 PageID #: 24483
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`12/18 meeting in Menlo Park relating to the ‘Asserted Patents’”). All materials shown or discussed,
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`including any expert materials or expert analysis, including summaries, slides, or handouts, should
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`be produced. D.I. 340, Ex. A at 7.
`
`Moreover, the expert materials in question were admittedly prepared by
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`This fact alone renders his pre-suit analysis
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`and materials discoverable. See Ansell, 2017 WL 6328149, at *3–4 (ordering production of
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`testifying expert material that was not a draft of a testifying expert report). And, it also is likely that
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`his analysis was used to help secure the loan, and would therefore be discoverable on that basis as
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`well. Acceleration never denied that
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` analysis was communicated to Reed Smith
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`during Acceleration’s efforts to secure the loan from Hamilton. Its counsel was careful to say only
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`that there were no “written” materials from
`
` See D.I. 340, Ex. B at 22 (“[SPECIAL
`
`MASTER:] Mr. Blumenfeld referred to
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` possibility of providing some
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`analysis in connection with the due diligence to Reed Smith and Hamilton. Was anything provided
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`by that expert? MR. FRANKEL: Well, if you are asking me if anything – if there was anything
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`written material, any written document that he created or that we created with his assistance that
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`was provided to Reed Smith, the answer is no.”) (emphasis added). Whatever analysis was
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`provided, shown or discussed, should be disclosed. Having used
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` analysis to
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`secure the loan that financed these suits, Acceleration cannot claim privilege over that analysis
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` “[P]rivilege cannot be used both as a sword and a
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`shield.” Ansell, 2017 WL 6328149, at *4.
`
`IV.
`
`Conclusion
`
`The Court should overrule Acceleration’s Objections to Special Master Order No. 13.
`
`10
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`

`

`Case 1:16-cv-00455-RGA Document 369 Filed 01/17/18 Page 13 of 14 PageID #: 24484
`
`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
`Louis L. Campbell
`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
`Anup K. Misra
`WINSTON & STRAWN LLP
`200 Park Avenue,
`New York, NY 10166
`(212) 294-6700
`Andrew R. Sommer
`Thomas M. Dunham
`Michael Woods
`Joseph C. Masullo
`Paul N. Harold
`WINSTON & STRAWN LLP
`1700 K Street, N.W.
`Washington, DC 20006
`(202) 282-5000
`
`December 27, 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 369 Filed 01/17/18 Page 14 of 14 PageID #: 24485
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`CERTIFICATE OF SERVICE
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`I hereby certify that on January 17, 2018, I caused the foregoing to be
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`electronically filed with the Clerk of the Court using CM/ECF, which will send notification of
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`such filing to all registered participants.
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`I further certify that I caused copies of the foregoing document to be served
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`on January 17, 2018, 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
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`Paul J. Andre, Esquire
`Lisa Kobialka, Esquire
`James R. Hannah, Esquire
`Hannah Lee, Esquire
`Yuridia Caire, Esquire
`Greg Proctor, Esquire
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Attorneys for Plaintiff
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`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
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`VIA ELECTRONIC MAIL
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`VIA ELECTRONIC MAIL
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`VIA ELECTRONIC MAIL
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`/s/ Stephen J. Kraftschik
`Stephen J. Kraftschik (#5623)
`
`