Case 1:16-cv-00455-RGA Document 453 Filed 01/17/19 Page 1 of 2 PageID #: 31893
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`M O R R I S , N I C H O L S , A R S H T & T U N N E L L L L P
`1201 NORTH MARKET STREET
`P.O. BOX 1347
`WILMINGTON, DELAWARE 19899-1347
`
`(302) 658-9200
`(302) 658-3989 FAX
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`JACK B. BLUMENFELD
`(302) 351-9291
`(302) 425-3012 FAX
`jblumenfeld@mnat.com
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`
`
`The Honorable Richard G. Andrews
`United States District Court
` for the District of Delaware
`844 North King Street
`Wilmington, DE 19801
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`January 17, 2019
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`VIA ELECTRONIC FILING
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`Re:
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`Acceleration Bay LLC v. Electronic Arts Inc.; C.A. No. 16-454 (RGA);
`Acceleration Bay LLC v. Take Two Interactive Software, Inc.; C.A. No. 16-455 (RGA)
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`Dear Judge Andrews:
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`We write on behalf of Defendants Electronic Arts Inc. and Take Two Interactive
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`Software, Inc. regarding a proposed schedule, as set forth in the Court’s December 10, 2018
`Order pertaining to damages issues in these cases. (EA D.I. 513; Take Two D.I. 448)
`(the “Damages Order”). After it issued multiple orders striking various portions of Plaintiff’s
`damages case in the Activision case, the Court continued the Activision trial indefinitely and
`issued a Case Management Order in that Action which, among other things, provided Plaintiff a
`“final opportunity” to present “an admissible damages case.” Following that Order, the Court
`entered the stipulated Damages Order in these cases. In the Damages Order, the Court:
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`1.
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`2.
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`3.
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`4.
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`5.
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`Took the pre-trial conference and trial dates in the EA and Take-Two Actions off
`calendar indefinitely;
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`Struck Plaintiff’s damages theories based on the Uniloc jury verdict;
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`Allowed Acceleration Bay to serve a single supplemental expert report from
`Mr. Parr, which must be “substantially similar” to the supplemental damages
`report Mr. Parr provided in the Activision Action.
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`Ordered the parties to follow the procedures set forth in the October 30, 2018
`Case Management Order in the Activision Action (16-453 D.I. 619); and
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`Ordered the parties to meet and confer and submit a proposed schedule.
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`

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`Case 1:16-cv-00455-RGA Document 453 Filed 01/17/19 Page 2 of 2 PageID #: 31894
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`The Honorable Richard G. Andrews
`January 17, 2019
`Page 2
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`The parties have submitted their proposed schedules in a joint stipulation filed yesterday (EA
`D.I. 518; Take Two D.I. 451). The sole dispute is when to start the process. Defendants request
`that the process begin now. Plaintiff prefers to wait until the Court issues its Order regarding the
`admissibility of its damages theories in the Activision case.
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`There is no need for the delay Plaintiff seeks. The Court gave Plaintiff one “final”
`opportunity to present an admissible damages case and required that Plaintiff’s damages theories
`be “substantially similar” to those it presented in the Activision case. Allowing Plaintiff to wait
`until it receives Activision’s motion and the Court’s rulings will inevitably lead to Plaintiff
`changing its damages theories again. Indeed, this has already been the case. In the Activision
`case alone, the Court issued four rulings against Plaintiff’s damages case. Instead of presenting
`narrower or more reasonable theories, Plaintiff changed its damages expert, completely changed
`its theories, and substantially increased its damages demands from the damages set forth in the
`inadmissible report of Dr. Meyer. As Plaintiff’s lead counsel explained, Plaintiff intends to offer
`serial damages cases until such time as the Court stops it from doing so. (Oct. 19, 2018
`Tr: 109:7-11 (“THE COURT: In any event, I take it from what you're telling me that you'll keep
`coming up with new damages theories if the ones that are already being suggested are for some
`reason unacceptable. MR. ANDRE: Your Honor, that's exactly right.”).
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`The Court’s Damages Order is clear: it gives Plaintiff one last chance to present an
`admissible damages case – something that it has so far been unable to do. There is no reason to
`delay the process. The Court should enter Defendants’ proposed schedule.
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`Respectfully,
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`/s/ Jack B. Blumenfeld
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`Jack B. Blumenfeld (#1014)
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`Clerk of Court (via hand delivery)
`All Counsel of Record (via electronic mail)
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`JBB/bac
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`cc:
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