Case 1:16-cv-00453-RGA Document 585 Filed 10/09/18 Page 1 of 17 PageID #: 47104
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`ACTIVISION BLIZZARD INC.,
`
`Defendant.
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`C.A. No. 16-453 (RGA)
`
`REDACTED
`PUBLIC VERSION
`
`DEFENDANT’S MOTION TO PRECLUDE INADMISSIBLE
`AND UNDISCLOSED DAMAGES THEORIES AND EVIDENCE
`
`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
`
`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
`Sean H. Suber
`WINSTON & STRAWN LLP
`35 West Wacker Drive
`Chicago, IL 60601
`(312) 558-5600
`
`-1--1-
`
`

`

`Case 1:16-cv-00453-RGA Document 585 Filed 10/09/18 Page 2 of 17 PageID #: 47105
`
`Krista M. Enns
`
`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
`Joseph C. Masullo
`Paul N. Harold
`WINSTON & STRAWN LLP
`1700 K Street, N.W.
`Washington, DC 20006
`(202) 282-5000
`
`B. Trent Webb
`Aaron E. Hankel
`Jordan T. Bergsten
`Maxwell C. McGraw
`SHOOK HARDY & BACON LLP
`2555 Grand Boulevard
`Kansas City, MO 64108
`(816) 474-6550
`
`Original Filing Date: September 28, 2018
`Redacted Filing Date: October 9, 2018
`
`

`

`Case 1:16-cv-00453-RGA Document 585 Filed 10/09/18 Page 3 of 17 PageID #: 47106
`
`I.
`
`INTRODUCTION.
`
`On August 29, 2018, the Court excluded the only expert opinion Plaintiff Acceleration
`
`Bay (“Acceleration”) has ever disclosed providing a reasonable royalty calculation. [D.I. 578].
`
`Following the Court’s ruling, Defendant Activision Blizzard, Inc. (“Activision”) sought
`
`clarification from Acceleration as to what, if any, damages evidence Acceleration believed
`
`survived the Court’s ruling and what damages case Acceleration intended to present at trial. In
`
`response, just five weeks before trial, Acceleration disclosed that it intends to offer at trial a
`
`royalty rate of 15.5% that could be applied to three different damages bases. This royalty rate
`
`was taken by Acceleration from an unauthenticated, third-party website listing dozens of rates
`
`purporting to be typical in various industries and having nothing to do with the patents in suit.
`
`Neither the royalty rate nor the damages models to which Acceleration seeks to apply the royalty
`
`rate was disclosed or discussed in any of Acceleration’s expert reports. Activision now moves to
`
`preclude Acceleration from presenting the new rate and the new damages theories because they
`
`are all based on inadmissible evidence and none were properly disclosed in any expert report.
`
`Activision also asks that the Court preclude Acceleration from offering any other damages
`
`theory not fulsomely described in a timely expert report.
`
`II.
`
`BACKGROUND.
`
`In September 2017, Acceleration served the expert report of Dr. Christine Meyer. All of
`
`Dr. Meyer’s damages computations were based on the now excluded Uniloc v. Electronic Arts
`
`jury verdict. [D.I. 480 (Andre Decl.,Volume 1) at Ex. 69, Meyer Report (hereinafter (“Meyer
`
`Report”)] Meyer Report ¶¶ 142-149 (“In this case, the royalty rate would be modelled on the rate
`
`determined by the jury in the Uniloc verdict….”; “I have estimated a reasonable royalty for the
`
`infringing products based on my analysis of the Uniloc verdict….”). Neither Dr. Meyer nor any
`
`-1--1-
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`

`

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`Case 1:16-cv-00453-RGA Document 585 Filed 10/09/18 Page 4 of 17 PageID #: 47107
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`other Acceleration expert provided any other calculation or alternate method of calculating a
`
`royalty. Id.
`
`On August 29, 2018, the Court ruled that it “will exclude Dr. Meyer’s royalty opinion
`
`insofar as it relies on the Uniloc jury verdict.” [D.I. 578.] The Uniloc jury verdict was the sole
`
`basis for the only expert opinion offered by Acceleration for a reasonable royalty. Thus, on
`
`August 31, Activision asked Acceleration to confirm that it would not offer at trial any
`
`reasonable royalty calculation and, if it intended otherwise, to identify the amount, methodology,
`
`and evidentiary basis for any damages claim that it believes survived the Court’s Daubert Order.
`
`Ex. 1, 8/31/18 Email.
`
`Three weeks later, on September 21, 2018, Acceleration responded by stating that it
`
`intends to introduce three damages theories at trial, none of which had been disclosed in any
`
`expert report. Each theory relies on a 15.5% royalty rate. Ex. 2, 9/21/18 Letter at 1-2.
`
`Acceleration intends to apply the 15.5% royalty rate to three royalty bases: (1) total revenues
`
`“related to” the accused products; (2) revenue from sales of the accused games (determined by
`
`multiplying average sales price by the number of users/units sold)1; and (3) the alleged “cost
`
`savings” from using re-designed games that Acceleration contends would cost $7 billion. Ex. 2,
`
`9/21/18 Letter at 2-3.
`
`Acceleration had cursorily identified the rate and theories in its response to Activision’s
`
`interrogatory and promised that the royalty would be explained in its expert reports. Ex. 3,
`
`8/18/17 Resp. Interrogatory No. 1 at 6, 8. Yet, none of its experts provided an opinion supporting
`
`this royalty rate, and none use any of these three bases. Dr. Meyer was the only expert to
`
`
`1 Although initially described as a base of number users/units sold, Acceleration specifies that
`this users/units sold base is multiplied by the 15.5% royalty rate “applies to the price of the
`game.” Ex. 2, 9/21/18 Letter at 3.
`
`2
`
`

`

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`Case 1:16-cv-00453-RGA Document 585 Filed 10/09/18 Page 5 of 17 PageID #: 47108
`
`I.
`
`INTRODUCTION.
`
`On August 29, 2018, the Court excluded the only expert opinion Plaintiff Acceleration
`
`Bay (“Acceleration”) has ever disclosed providing a reasonable royalty calculation. [D.I. 578].
`
`Following the Court’s ruling, Defendant Activision Blizzard, Inc. (“Activision”) sought
`
`clarification from Acceleration as to what, if any, damages evidence Acceleration believed
`
`survived the Court’s ruling and what damages case Acceleration intended to present at trial. In
`
`response, just five weeks before trial, Acceleration disclosed that it intends to offer at trial a
`
`royalty rate of 15.5% that could be applied to three different damages bases. This royalty rate
`
`was taken by Acceleration from an unauthenticated, third-party website listing dozens of rates
`
`purporting to be typical in various industries and having nothing to do with the patents in suit.
`
`Neither the royalty rate nor the damages models to which Acceleration seeks to apply the royalty
`
`rate was disclosed or discussed in any of Acceleration’s expert reports. Activision now moves to
`
`preclude Acceleration from presenting the new rate and the new damages theories because they
`
`are all based on inadmissible evidence and none were properly disclosed in any expert report.
`
`Activision also asks that the Court preclude Acceleration from offering any other damages
`
`theory not fulsomely described in a timely expert report.
`
`II.
`
`BACKGROUND.
`
`In September 2017, Acceleration served the expert report of Dr. Christine Meyer. All of
`
`Dr. Meyer’s damages computations were based on the now excluded Uniloc v. Electronic Arts
`
`jury verdict. [D.I. 480 (Andre Decl.,Volume 1) at Ex. 69, Meyer Report (hereinafter (“Meyer
`
`Report”)] Meyer Report ¶¶ 142-149 (“In this case, the royalty rate would be modelled on the rate
`
`determined by the jury in the Uniloc verdict….”; “I have estimated a reasonable royalty for the
`
`infringing products based on my analysis of the Uniloc verdict….”). Neither Dr. Meyer nor any
`
`
`
`

`

`Case 1:16-cv-00453-RGA Document 585 Filed 10/09/18 Page 6 of 17 PageID #: 47109
`
`other Acceleration expert provided any other calculation or alternate method of calculating a
`
`royalty. Id.
`
`On August 29, 2018, the Court ruled that it “will exclude Dr. Meyer’s royalty opinion
`
`insofar as it relies on the Uniloc jury verdict.” [D.I. 578.] The Uniloc jury verdict was the sole
`
`basis for the only expert opinion offered by Acceleration for a reasonable royalty. Thus, on
`
`August 31, Activision asked Acceleration to confirm that it would not offer at trial any
`
`reasonable royalty calculation and, if it intended otherwise, to identify the amount, methodology,
`
`and evidentiary basis for any damages claim that it believes survived the Court’s Daubert Order.
`
`Ex. 1, 8/31/18 Email.
`
`Three weeks later, on September 21, 2018, Acceleration responded by stating that it
`
`intends to introduce three damages theories at trial, none of which had been disclosed in any
`
`expert report. Each theory relies on a 15.5% royalty rate. Ex. 2, 9/21/18 Letter at 1-2.
`
`Acceleration intends to apply the 15.5% royalty rate to three royalty bases: (1) total revenues
`
`“related to” the accused products; (2) revenue from sales of the accused games (determined by
`
`multiplying average sales price by the number of users/units sold)1; and (3) the alleged “cost
`
`savings” from using re-designed games that Acceleration contends would cost
`
`. Ex. 2,
`
`9/21/18 Letter at 2-3.
`
`Acceleration had cursorily identified the rate and theories in its response to Activision’s
`
`interrogatory and promised that the royalty would be explained in its expert reports. Ex. 3,
`
`8/18/17 Resp. Interrogatory No. 1 at 6, 8. Yet, none of its experts provided an opinion supporting
`
`this royalty rate, and none use any of these three bases. Dr. Meyer was the only expert to
`
`1 Although initially described as a base of number users/units sold, Acceleration specifies that
`this users/units sold base is multiplied by the 15.5% royalty rate “applies to the price of the
`game.” Ex. 2, 9/21/18 Letter at 3.
`
`2
`
`

`

`Case 1:16-cv-00453-RGA Document 585 Filed 10/09/18 Page 7 of 17 PageID #: 47110
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`provide a damages opinion, and her only opinion relied exclusively on a per unit/user royalty
`
`based on the Uniloc jury verdict, which has now been excluded. Meyer Rpt. ¶ 149 (“[R]oyalty
`
`rate of $2.10 per user is reasonable, based on a full consideration of the appropriate technical and
`
`economic factors of the Uniloc verdict”).
`
`Even though the Court dismissed 9 of Acceleration’s 16 asserted claims of infringement
`
`and excluded its only damages theory, Acceleration’s new damages theories actually increase its
`
`damage demand substantially, which is highly prejudicial to Activision.2 Accordingly, the
`
`royalty rate and theories Acceleration intends to introduce should be excluded as inadmissible
`
`and not properly disclosed.
`
`III.
`
`THE NEW ROYALTY THEORIES DESCRIBED IN ACCELERATION’S
`LETTER ARE INADMISSIBLE.
`
`All of the royalty theories disclosed in Acceleration’s September 21 letter are
`
`inadmissible because the 15.5% royalty rate on which they each rely is inadmissible.
`
`Acceleration identifies only two alleged evidentiary sources for the 15.5% royalty rate: a
`
`webpage and the testimony of Acceleration’s Vice President of Licensing, John Garland.
`
`Neither supports admissibility of this royalty rate.
`
`The only disclosed documentary source for the 15.5% rate is a webpage entitled: “The
`
`Inventor’s Guide to Royalty Rates.” Ex. 4, AB-AB 004474-83. This webpage lists 15.5% as the
`
`highest among dozens of ostensible royalty rates. Id. This document was not discussed or
`
`2 Acceleration lost 9 of its 16 asserted claims through this Court’s determination that certain
`claims were invalid or not infringed. [D.I. 578.] Dr. Meyer’s royalty was $0.35 per patent per
`game, and provided tables that demonstrate that Acceleration’s damages should have decreased
`by at least
` from the loss of these 9 claims alone, even if her opinions had not been
`excluded. [D.I. 534 Ex. 1 (hereinafter (“Meyer Supp. Report”)], Meyer Supp. Report Exhibits
`S16 and S18. Instead, based on its new, previously undisclosed theories, Acceleration’s
`damages have increased from a total of
` for the life of the patents to over
` for just two years. The prior total for those two years was approximately
`Id. at Meyer Supp. Report Exhibit S16.
`
`lion.
`
`3
`
`

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`Case 1:16-cv-00453-RGA Document 585 Filed 10/09/18 Page 8 of 17 PageID #: 47111
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`analyzed in any expert report. Acceleration has not identified any witness who could
`
`authenticate the webpage or provide a foundation for its admission. The webpage is hearsay, and
`
`there is no exception to the hearsay rule under which to admit it. More importantly, any
`
`testimony based on this third-party website listing generic, industry-wide royalty rates would be
`
`impermissible as a rule of thumb. See Uniloc USA, Inc. v. Microsoft Corp., 632 F.3d 1292, 1315
`
`(Fed. Cir. 2011). Applying Uniloc, the court in Chico’s Fas, Inc. v. Clair excluded testimony
`
`based on a KPMG report titled “Profitability and Royalty Rates across Industries: Some
`
`Preliminary Evidence” as an impermissible rule of thumb that “fail[ed] to tie a reasonable royalty
`
`base to the facts of the case at issue.” C.A. No. 2:13-CV-792-FTM-38DN, 2015 WL 3496003, at
`
`*6 (M.D. Fla. June 3, 2015). Here, Acceleration appears to have determined without any
`
`analysis of the underlying internet report and how it relates to the facts of this case that it is
`
`entitled to a 15.5% royalty because Acceleration classifies Activision as an “Entertainment”
`
`company. This is precisely the type of rule of thumb royalty, divorced from any connection to
`
`the actual facts at issue, that the Federal Circuit has prohibited.
`
`Acceleration claims that the 15.5% royalty rate is supported by “[t]estimony of John
`
`Garland at pages 26-32.” Ex. 2, 9/21/18 Letter at 2. But Mr. Garland professed ignorance of this
`
`rate or its source. He testified:
`
` Ex. 5, Garland Tr. at 28:9-12; 32:7-12. Mr. Garland lacks
`
`personal knowledge of the 15.5% rate, and therefore cannot testify to that rate. FRE 602.
`
`Acceleration’s letter suggests that it will rely upon expert testimony of Drs. Bims,
`
`Medvidovic, Mitzenmacher, Valerdi and Meyer and purports to list “damages related opinions”
`
`that were supposedly “not impacted by the Daubert Order.” Ex. 2, 9/21/18 Letter 3-4. None of
`
`4
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`

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`Case 1:16-cv-00453-RGA Document 585 Filed 10/09/18 Page 9 of 17 PageID #: 47112
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`these opinions address the 15.5% royalty rate or the three royalty bases, or tie these three
`
`damages theories to any reasonable royalty. As reiterated recently by the Federal Circuit, none
`
`of this proposed testimony is admissible because none of it is tied to the royalty rate: “When
`
`performing a Georgia-Pacific analysis, damages experts must … carefully tie those factors to the
`
`proposed royalty rate.” Exmark Mfg. Co. Inc. v. Briggs & Stratton Power Prod. Grp., LLC, 879
`
`F.3d 1332, 1350 (Fed. Cir. 2018). It is “not enough” for an expert to “explain the advantages of
`
`the [claimed invention] and state that they would have been important in a hypothetical
`
`negotiation.” Id. Such testimony is not admissible because it “[tells] the jury nothing more than
`
`that the patented technology [is] important and commercially successful.” Id.
`
`That is exactly what Acceleration seeks to do here. Dr. Bims says the patents are
`
`valuable; Drs. Mitzenmacher and Medvidovic say that there are no non-infringing alternatives;
`
`and Dr. Valerdi opines that a supposed redesign of the accused games would cost
`
`. But
`
`none of these opinions mentions any royalty rate at all, let alone the new 15.5% rate set forth in
`
`the letter. Dr. Meyer purported to analyze the Georgia Pacific factors, but only to support her
`
`use of the Uniloc verdict as the basis for a royalty. Meyer Report ¶ 149. Her analysis of the
`
`facts of this case, and her reliance on the opinions of Drs. Bims, Medvidovic, Mitzenmacher and
`
`Valerdi are completely unrelated to the new 15.5% royalty rate.3 The only royalty rate discussed
`
`in any Acceleration expert report is the rate Dr. Meyer based exclusively on the Uniloc verdict.
`
`3 The letter also mentions ATVI0030932-972 and pages 44-45 of Dr. Meyer’s Report, but not in
`support of the royalty rate. ATVI0030932-972 is the
`. Ex. 1, Letter at 3 citing ATVI00030932-972. At pages 44-45
`of her report, Dr. Meyer discusses this agreement but never attempts to tie it to any license rate,
`let alone the 15.5% rate in the letter. In fact, she confirms that this agreement is not a
`comparable patent license,
`
` Meyer
`Report ¶ 72; see also id. ¶ 104 (choosing to rely on Uniloc verdict because no comparable
`agreements exist.).
`
`5
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`

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`Case 1:16-cv-00453-RGA Document 585 Filed 10/09/18 Page 10 of 17 PageID #: 47113
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`The opinions of Drs. Bims, Medvidovic, Mitzenmacher, Valerdi and Meyer are inadmissible to
`
`support the 15.5% rate because they are not tied to it in any way.
`
`Thus, there is no admissible evidence supporting Acceleration’s 15.5% royalty rate.
`
`There is no expert testimony or other basis to allow Acceleration to present this royalty rate. The
`
`Court should therefore preclude Acceleration from offering any damages theory based on a
`
`15.5% royalty rate, or any other undisclosed royalty rate, at trial.
`
`Nor has Acceleration presented any basis for admissibility of the three royalty bases to
`
`which it would apply the 15.5% royalty rate. Dr. Meyer did not present a revenue base for her
`
`royalty but instead determined a royalty by multiplying the number of units by the $0.35 per-
`
`patent per-game rate she derived from the Uniloc verdict. Meyer Report ¶143; Meyer Report
`
`Exhibit 14. The three new bases are different. Two rely on Activision total revenues and the
`
`third relies on a purported “cost saving” figure. Ex. 2, 09/21/18 Letter at. 2-3. None of the
`
`expert reports disclosed a royalty using these bases, and there is no expert report that explains
`
`how any of these alleged royalty bases would be used in a hypothetical negotiation between
`
`Activision or Boeing. This is an independent reason to exclude the theories disclosed in
`
`Acceleration’s Letter. Uniloc USA, Inc. v. Microsoft Corp., 632 F.3d 1292, 1315 (Fed. Cir.
`
`2011) (royalty must be tied to facts of the case).
`
`IV.
`
`ACCELERATION’S FAILURE TO PROVIDE EXPERT SUPPORT FOR
`THE 15.5% ROYALTY WAS DELIBERATE.
`
`Acceleration made a conscious decision not to include or even mention the 15.5% rate
`
`and the Letter’s damages theories in any of its expert reports. Acceleration’s first supplemental
`
`response to Activision’s interrogatory seeking Acceleration’s damages position cursorily
`
`mentioned this rate and these theories and promised that they would be only be explained in the
`
`expert reports: “Plaintiff is actively seeking discovery on each of these theories and conferring
`
`6
`
`

`

`Case 1:16-cv-00453-RGA Document 585 Filed 10/09/18 Page 11 of 17 PageID #: 47114
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`with its damages expert, who will address them… in an expert report after the close of fact
`
`discovery. [The] royalty rate … is a subject of expert opinion …. Plaintiff specifically objects to
`
`Special Master Order No. 34 to the extent it requires disclosure of this information at this time.”
`
`Ex. 3, 8/18/17 Resp. Interrogatory No. 1 at 6, 8.5 The responses then explicitly incorporate
`
`forthcoming the expert reports at least three times. See generally id.
`
`Yet, when Acceleration served its seven expert reports, it abandoned the 15.5% royalty
`
`rate and these theories in favor of Dr. Meyer’s single theory based on the Uniloc v. EA jury
`
`verdict. Dr. Meyer provided the only expert opinion to provide a computation of damages, and
`
`all of Dr. Meyer’s royalty calculations were predicated exclusively on a royalty rate taken from
`
`the excluded Uniloc v. EA jury verdict. Meyer Report ¶¶ 142-49. And at her deposition, Dr.
`
`Meyer also did not mention a 15.5% royalty or Accelerations new theories.
`
`Acceleration made an intentional decision not to present any expert analysis supporting
`
`the 15.5 % royalty rate, any rate based on a methodology other than the Uniloc verdict, or the
`
`theories disclosed in its September 21 letter. It identified the rate and theories in its discovery
`
`responses, promised they would be explained by its experts, and then abandoned both the rate
`
`and the base in favor of the royalty based on the Uniloc verdict. Multiple Orders of this Court
`
`required Acceleration to present support for this rate in its expert reports if it intended to present
`
`it at trial. [D.I. 62, Scheduling Order at 8-9]; [D.I. 155, Special Master Order No. 3 at 8.] It did
`
`not.
`
`4 Special Master Order No. 3 granted Activision’s Motion to Compel regarding Activision’s
`damages interrogatories, [D.I. 155], and that Order was subsequently confirmed by this Court.
`[D.I. 193]
`5 Nor does this short interrogatory response provide anything approaching a proper reasonable
`royalty analysis. The substance is less than 6 pages, it does not provide a computation of
`damages, does not analyze the hypothetical negotiation, and does not purport to tie either the
`royalty or the rate to the facts of this case.
`
`7
`
`

`

`Case 1:16-cv-00453-RGA Document 585 Filed 10/09/18 Page 12 of 17 PageID #: 47115
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`The failure to present these theories in the expert reports has severely prejudiced
`
`Activision. It is now a month from trial and Activision is just learning for the first time about the
`
`damages theories Acceleration intends to present at trial. None of Acceleration’s experts have
`
`presented these theories or been deposed on them. Acceleration still has not presented any
`
`computation of damages as required by Fed. R. Civ. P. 26. Acceleration’s failure to present
`
`these theories in its expert reports – as it promised it would do – deprived Activision of any
`
`reasonable opportunity to challenge their admissibility in the traditional manner. The prejudice is
`
`even more acute because Acceleration’s damages demands are skyrocketing even though it lost
`
`more than half of its claims and this Court struck its only damages theory. See supra n.1.
`
`Reasonable royalty calculations are “the province of expert analysis” – “lay witness[es]
`
`may not offer an opinion on ultimate patent damages, including determining a reasonable
`
`royalty.” See AVM Techs., LLC v. Intel Corp., 927 F. Supp. 2d 139, 146 (D. Del. 2013). The
`
`burden was on the Plaintiff to establish the admissibility of these theories, and it failed to use its
`
`expert reports to do so. Id. at 147 (“Before presenting a damages number to the jury, the
`
`patentee must establish that its calculation is based on reliable methodology and concrete
`
`facts…. As a matter of law, [Plaintiff] cannot introduce a damages theory to the jury without
`
`establishing its reliability.”).
`
`Accordingly, Activision respectfully requests that Acceleration be precluded from
`
`presenting at trial the 15.5% royalty rate, the royalty bases associated with that rate, and any
`
`other damages theory not fulsomely disclosed in its expert reports.
`
`8
`
`

`

`
`Case 1:16-cv-00453-RGA Document 585 Filed 10/09/18 Page 13 of 17 PageID #: 47116
`
`
`
`
`
`
`
`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
`Sean H. Suber
`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
`Joseph C. Masullo
`Paul N. Harold
`WINSTON & STRAWN LLP
`
`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
`
`
`9
`
`

`

`
`Case 1:16-cv-00453-RGA Document 585 Filed 10/09/18 Page 14 of 17 PageID #: 47117
`
`1700 K Street, N.W.
`Washington, DC 20006
`(202) 282-5000
`
`B. Trent Webb
`Aaron E. Hankel
`Jordan T. Bergsten
`Maxwell C. McGraw
`SHOOK HARDY & BACON LLP
`2555 Grand Boulevard
`Kansas City, MO 64108
`(816) 474-6550
`
`September 28, 2018
`
`10
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`Case 1:16-cv-00453-RGA Document 585 Filed 10/09/18 Page 15 of 17 PageID #: 47118
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`7.1.1 CERTIFICATION
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`I hereby certify that the subject of the foregoing motion has been discussed with
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`counsel for the plaintiff and that we have not been able to reach agreement.
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`/s/ Stephen J. Kraftschik
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`Stephen J. Kraftschik (#5623)
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`Case 1:16-cv-00453-RGA Document 585 Filed 10/09/18 Page 16 of 17 PageID #: 47119
`Case 1:16-cv-00453-RGA Document 585 Filed 10/09/18 Page 16 of 17 PagelD #: 47119
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`Case 1:16-cv-00453-RGA Document 585 Filed 10/09/18 Page 17 of 17 PageID #: 47120
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`CERTIFICATE OF SERVICE
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`I hereby certify that on October 9, 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 on
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`October 9, 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
`Cristina Martinez, Esquire
`Shannon H. Hedvat, 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
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`Stephen J. Kraftschik (#5623)
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