Case 1:16-cv-00455-RGA Document 531 Filed 04/04/22 Page 1 of 15 PageID #: 37522
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`Plaintiff,
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`v.
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`Defendants.
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`ACCELERATION BAY LLC,
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`C.A. No. 16-455 (RGA)
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`TAKE-TWO INTERACTIVE SOFTWARE, ) REDACTED –
`) PUBLIC VERSION
`INC., ROCKSTAR GAMES, INC. and
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`2K SPORTS, INC.,
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`DEFENDANTS’ REPLY BRIEF IN SUPPORT OF
`THEIR MOTION FOR FEES AND COSTS
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`MORRIS, NICHOLS, ARSHT & TUNEL LLP
`Jack B. Blumenfeld (#1014)
`Cameron P. Clark (#6647)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899
`(302) 658-9200
`jblumenfeld@morrisnichols.com
`cclark@morrisnichols.com
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`Attorneys for Defendants
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`
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`Joseph C. Masullo
`WINSTON & STRAWN LLP
`1700 K Street, N.W.
`Washington, DC 20006
`(202) 282-5000
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`OF COUNSEL:
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`David P. Enzminger
`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
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`Louis L. Campbell
`WINSTON & STRAWN LLP
`255 Shoreline Drive, Suite 520
`Redwood City, CA 94065
`(650) 858-6500
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`Dan K. Webb
`WINSTON & STRAWN LLP
`35 West Wacker Drive
`Chicago, I L 60601
`(312) 558-5600
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`
` March 28, 2022
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`Original Filing Date: March 28, 2022
`Redacted Filing Date: April 4, 2022
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`

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`Case 1:16-cv-00455-RGA Document 531 Filed 04/04/22 Page 2 of 15 PageID #: 37523
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`TABLE OF CONTENTS
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`Page
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`I.
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`Acceleration Fails to Excuse Its Weak “m-regular” Infringement Position ....................... 1
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`A.
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`B.
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`C.
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`Acceleration’s Literal Infringement Positions Were Exceptionally Weak ............. 1
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`Acceleration Offers No Excuse for its Weak Equivalents Theory ......................... 3
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`Acceleration’s Use of the Doctored Screenshot Makes this Case Stand Out ......... 3
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`II.
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`Acceleration Fails to Excuse Its Other Implausible Positions ............................................ 6
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`III.
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`IV.
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`A.
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`B.
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`C.
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`Acceleration’s Post-Claim Construction Assertion of the CRM Claims
`Was Exceptionally Weak and Multiplied These Proceedings ................................ 6
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`Acceleration’s Position on Standing Was Exceptionally Weak ............................. 7
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`Acceleration’s Positions on Damages Were Exceptionally Weak ......................... 7
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`Acceleration Fails to Excuse Its Litigation Misconduct ..................................................... 7
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`Acceleration’s Counsel and Alter Egos Should be Liable For Any Sanctions ................... 8
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`A.
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`B.
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`C.
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`Acceleration’s Counsel and Principal Are Alter Egos of Acceleration .................. 8
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`Acceleration’s Counsel Are Liable Under 35 U.S.C. § 285 ................................. 10
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`Acceleration’s Counsel May Be Found Liable Under the Court’s Inherent
`Authority ............................................................................................................... 10
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`V.
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`Conclusion ........................................................................................................................ 10
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`i
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`Case 1:16-cv-00455-RGA Document 531 Filed 04/04/22 Page 3 of 15 PageID #: 37524
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`Cases
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`TABLE OF AUTHORITIES
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`Page(s)
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`Acceleration Bay LLC v. Activision Blizzard, Inc.,
`324 F.Supp.3d 470 (D. Del. 2018) .............................................................................................8
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`Acceleration Bay LLC v. Take-Two Interactive Software, Inc.,
`Civil Action No. 16-455-RGA, 2020 U.S. Dist. LEXIS 49607 (D. Del. Mar.
`23, 2020) ............................................................................................................................2, 3, 4
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`Anderson Mfg. Inc. v. Wyers Prods. Grp. Inc.,
`18-0235-WJM, 2019 WL 4007772 (D. Colo. Aug. 23, 2019) ..................................................8
`
`Finjan, Inc. v. Juniper Networks,
`No. C 17-05659 WHA, 2021 U.S. Dist. LEXIS 138945 (N.D. Cal. July 26,
`2021) ..................................................................................................................................7, 8, 9
`
`Iris Connex, LLC v. Dell, Inc.,
`235 F.Supp.3d 826 (E.D. Tex. 2017) ...................................................................................8, 10
`
`U.S. v. Golden Acres, Inc.,
`702 F.Supp. 1097 (D. Del. 1988) ...............................................................................................9
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`U.S. v. Lynch,
`735 F. App’x 780 (3d Cir. 2018) ...............................................................................................5
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`Rules and Statutes
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`35 U.S.C. § 285 ..........................................................................................................................7, 10
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`ii
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`Case 1:16-cv-00455-RGA Document 531 Filed 04/04/22 Page 4 of 15 PageID #: 37525
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`Acceleration’s opposition brief does not attempt to refute much of Take-Two’s motion.
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`Acceleration does not deny that its infringement theories for NBA 2K and GTAO were the exact
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`opposite of what the claims require. It does not dispute that its doctrine of equivalents arguments
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`were “especially weak,” that its validity arguments for the computer readable medium claims were
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`contrary to its own admission at oral argument, that its damages assertions were so weak as to be
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`nonexistent, or that its standing arguments were contrary to black letter law and the express words
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`of a prior license. Acceleration also does not dispute that it repeatedly relitigated issues it had
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`already lost, or that multiple courts have found that Acceleration’s counsel have engaged in the
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`same type of misconduct at issue here. Acceleration admits that it manipulated a screenshot to
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`match its infringement theory, gave it to its experts without telling them the screenshot had been
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`manipulated, and then sat idly by while its experts testified the screenshot was genuine. Instead of
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`addressing these issues directly, Acceleration offers a litany of distractions, non-sequiturs and
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`weak excuses for its misconduct. Its arguments for why its attorneys and principal should be able
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`to shirk direct financial penalties are particularly unpersuasive. Acceleration’s lawyers controlled
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`each and every aspect of Acceleration, including forming it as an uncapitalized shell company
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`with
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`the majority of those funds going directly to the lawyers themselves.
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`I.
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`Acceleration Fails to Excuse Its Weak “m-regular” Infringement Position
`A.
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`Acceleration’s Literal Infringement Positions Were Exceptionally Weak
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`Acceleration attempts to sidestep the profound deficiencies in its infringement cases by
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`arguing that it “provided a detailed infringement case, backed by thorough and substantive
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`technical reports.” 455 DI 524 at 7-11 (see 455 DI 521 at 1, n. 1 for citation convention). Given
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`how badly the infringement theories missed the mark, their level of detail is beside the point.
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`The level of detail is beside the point for NBA 2K because Acceleration’s sole defense of
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`1
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`Case 1:16-cv-00455-RGA Document 531 Filed 04/04/22 Page 5 of 15 PageID #: 37526
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`its literal infringement case was already found to be mere attorney argument. Acceleration again
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`argues “the Park Relay Server [is] part of the underlying network layer and not a participant in the
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`application layer.” Id. at 10. But as the Court found in granting summary judgment, its own expert,
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`Dr. Mitzenmacher, said exactly the opposite. Acceleration Bay LLC v. Take-Two Interactive
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`Software, Inc., Civil Action No. 16-455-RGA, 2020 U.S. Dist. LEXIS 49607, at *27 (D. Del. Mar.
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`23, 2020). He opined that the Park Relay Server is a “participant.” Id.; see also 455 DI 464, Ex. E-
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`5 (Mitz. Tr.) at 165:8–166:7. This fact led him to admit that there was no literal infringement:
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`Q. So [NBA2K] doesn’t meet the literal definition of an m-regular incomplete
`network because the MyPARK server participant has 40 connections and the player
`participants have 10; correct?
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`A. Give me one sec to check, but... As I recall, that’s right, yes.
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`455 DI 464, Ex. E-5 (Mitz. Tr.) at 167:14-19. Thus, Acceleration’s literal infringement claim for
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`NBA2K stands out from others because, as the Court observed, (1) Acceleration’s principal
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`argument—that the Park Relay server “is not a participant”—was mere attorney argument that
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`directly contradicted its own expert and (2) the accused network is “fundamentally different” than
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`the claimed network. Acceleration at *27, 29.
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`For GTAO, the supposedly “detailed” infringement case does not matter because Take-
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`Two “accept[ed] Plaintiff’s characterization” of the GTAO network for summary judgment. 455
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`DI 463 at 9-10. The Court nonetheless granted summary judgment of no infringement.
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`Acceleration at *21. Acceleration’s infringement thesis—that GTAO infringed due to natural
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`player movement—was effectively the opposite of what the claims require because such a network
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`is not “‘configured to maintain’ any particular state.” Id. In fact, the Court found that Acceleration
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`“has not shown (and does not try to show)” that GTAO met the Court’s claim construction. Id. at
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`*23. The infringement case for GTAO stands out from others because Acceleration’s infringement
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`theory—even when accepted as true—was effectively the opposite of what the claims require.
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`2
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`Case 1:16-cv-00455-RGA Document 531 Filed 04/04/22 Page 6 of 15 PageID #: 37527
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`B.
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`Acceleration Offers No Excuse for its Weak Equivalents Theory
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`Acceleration’s opposition brief does not even try to justify its implausible doctrine of
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`equivalents allegations, which the Court found to be “especially weak.” Acceleration at *25.
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`C.
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`Acceleration’s Use of the Doctored Screenshot Makes this Case Stand Out
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`Acceleration’s counsel does not deny that it copied a screenshot from a YouTube video
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`and altered that screenshot by adding some players and deleting others so it would appear to match
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`its infringement theory. Nor does Acceleration’s counsel deny that it gave that manipulated
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`screenshot to its experts without telling them it was fake. None of this is in dispute. Acceleration’s
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`counsel offers no declaration or justification for its conduct. Instead, after having been caught red-
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`handed, Acceleration argues that this is much ado about nothing because the reports state the image
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`was “modified” and because the screenshot is “not evidence.” 455 DI 524 at 2-7.
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`Acceleration’s first argument—that its expert reports properly disclosed that the screenshot
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`itself had been “modified”—fails because those reports said no such thing. Acceleration gave the
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`screenshot to its experts without telling them that the screenshot itself had been manipulated to
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`suit the infringement theory. Because neither expert knew that the screenshot itself had been
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`manipulated, their reports simply cannot have addressed this fact. In fact, Dr. Medvidovic testified
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`unequivocally that the word “modified” referred to only the numbers and arrows that were overlaid
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`on the screenshot for reference. 455 DI 521, Ex. P (Med. Tr.) at 124:15-127:16.
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`But making matters worse, Acceleration’s counsel sat idly by and did not correct the record
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`as its experts offered incorrect testimony on this very subject. On July 27, 2018, Dr. Mitzenmacher
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`testified that the overlayed reference numbers and arrows were the only modification and that the
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`screenshot itself was, to his knowledge, otherwise unmodified. 455 DI 464, Ex. E-5 (Mitz. Tr.) at
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`57:23-58:10. Counsel did not correct the record even as Dr. Mitzenmacher was questioned
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`extensively on the doctored aspects of the screenshot. Id. 56:23-66:22; see also Ex. T (Exhibit 6
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`3
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`Case 1:16-cv-00455-RGA Document 531 Filed 04/04/22 Page 7 of 15 PageID #: 37528
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`to Mitz. Tr.). He ultimately testified that he would need to “ask counsel” about “the provenance of
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`the screenshot.” Id. 65:7-14. Then, weeks later, counsel again sat idly by as Dr. Medvidovic
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`testified that that the overlayed reference numbers and arrows were the only modifications he knew
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`of and that neither he, Dr. Mitzenmacher, nor the attorneys, did anything else to the image:
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`Q And so what did you mean by the word “modified” in paragraph 173?
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`A So there are three – four – rather three blue and one green circles that are
`numbered, two squares that are also green and numbered, and a set of lines between
`them, as shown in this diagram, that have been added to a screenshot of GTA. ***
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`Q So other than that, it's your testimony that this is an actual screenshot from
`Grand Theft Auto that's not modified in any other way?
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`THE WITNESS: This is correct. This is a—screenshot of a death match in
`Grand Theft Auto.
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`Q And it has not been modified in any other way other than what you just testified
`about?
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`THE WITNESS: To the best of my understanding, I certainly did not modify this
`screenshot. If it was produced, for example, after it was modified by someone at
`Take-Two or something like that, I'm not aware of that. It’s not beyond the realm
`or impossible, but neither I nor Dr. Mitzenmacher nor the attorneys at Kramer
`Levin, to the best of my knowledge, did anything to this image other than what I
`just described a couple times with what you call the overlay.
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`455 DI 521, Ex. P (Med. Tr.) at 124:15-127:16 (emphasis added) (objections omitted).
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`Acceleration’s counsel sat in those depositions and allowed its experts to testify that the
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`screenshot itself had not been modified—testimony Acceleration’s counsel knew was incorrect.
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`Only after Acceleration’s attempt at deception was revealed in Defendants’ summary judgment
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`briefing did Acceleration come up with the story that the word “modified” referred to its
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`manipulations of the underlying screenshot.
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`It bears emphasizing that the altered screenshot was Acceleration’s only alleged gameplay
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`evidence of its “player movement” infringement theory. Acceleration’s experts supposedly “play-
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`tested” the games extensively but failed to capture any such evidence. Ex. R (Mitz Tr.) at 50:3-12;
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`4
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`Case 1:16-cv-00455-RGA Document 531 Filed 04/04/22 Page 8 of 15 PageID #: 37529
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`Ex. U (Med. Tr.) at 36:24-37:1, 43:6-14. Thus, after the experts’ extensive playtesting failed to
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`provide any actual evidence to support the infringement theory, Acceleration altered a screenshot
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`to match its theory and gave it to its experts. Plainly, the plan was to use this screenshot to trick
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`the Court or a jury into thinking Acceleration had actual evidence of its infringement theory when
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`it did not.
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`Acceleration’s second argument is equally unavailing. It argues that its conduct was
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`unobjectionable because the experts stated the screenshots were used only for “illustrative
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`purposes, not as evidence of infringement.” 455 DI 524 at 3. This argument fails for three reasons.
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`First, as noted, the experts were not aware the lawyers had edited the screenshot to match the
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`infringement theory. Second, even demonstrative exhibits need to be accurate. See U.S. v. Lynch,
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`735 F. App’x 780, 786 (3d Cir. 2018) (“A Rule 1006 summary chart … must accurately represent
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`the facts that it purports to summarize.”). And third, most importantly, Acceleration did rely on
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`the screenshot as evidence of infringement. In opposition to summary judgment, it cited to “Mitz.
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`Rpt. at ¶¶ 121-137” to argue that “GTA uses m-regular, incomplete networks to distribute
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`gameplay data to participants in a gameplay session.” 455 DI 472 at 2. These paragraphs include
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`the altered screenshot. (Mitzenmacher Rpt. ¶ 129). In addition, in its oppositions to summary
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`judgment and the present Motion, Acceleration cites—as evidence of infringement—four other
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`diagrams from the expert reports. 455 DI 472 at 3, 5 (citing paragraphs 129, 130, 132, and 133 of
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`Mitzenmacher Report). But, these diagrams were also described as an “illustration” or for
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`“illustrative purposes.” See, 455 DI 464, Ex. A-1 (Med. Rpt.), ¶¶ 173-175, 177; 455 DI 464, Ex.
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`A-2 (Mitz. Rpt.), ¶¶ 129-131, 133; 455 DI 521, Ex. Q (Mitz. Tr.) at 58:17-59:2; Ex. R (Mitz Tr.)
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`at 74:8-11, 75:13-16. Acceleration offers no explanation for why the manufactured screenshot is
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`“not evidence,” but the four hypothetical diagrams are evidence of a “detailed infringement
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`5
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`Case 1:16-cv-00455-RGA Document 531 Filed 04/04/22 Page 9 of 15 PageID #: 37530
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`analysis.” Further, Dr. Medvidovic stated expressly that the “evidence of infringement” included
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`the manipulated screenshot. 455 DI 525, Ex. 2 (Med. Tr.), 135:7-17 (“The evidence of
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`infringement stretches [multiple] pages of which this figure is about a quarter of one page.”). The
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`truth is Acceleration always considered these images to be evidence of infringement and must live
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`with the consequences of manufacturing the screenshot and giving it to its expert.
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`Stepping back, Acceleration’s creation and use of the altered screenshot makes this case
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`stand out from others. In defense of an exceptionally weak infringement theory—and after its
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`experts could find no actual evidence of infringement—Acceleration gave its experts the altered
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`screenshot without telling them it was altered, and then said nothing while the experts incorrectly
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`testified to the screenshot’s authenticity. This does not happen in routine cases.
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`II.
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`Acceleration Fails to Excuse Its Other Implausible Positions
`A.
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`Acceleration’s Post-Claim Construction Assertion of the CRM Claims Was
`Exceptionally Weak and Multiplied These Proceedings
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`Acceleration’s only argument on this point misses the point entirely. Acceleration argues:
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`“[i]n view of Acceleration Bay’s overwhelming success in defending the validity of its claims, the
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`Court’s finding that two claims were invalid because they contain the phrase ‘computer readable
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`media,’ hardly renders the case exceptional.” 455 DI 524 at 13.1 But Acceleration admitted at the
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`claim construction hearing that if the claims covered non-transitory media, they were invalid.
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`Nevertheless, after it lost on that very issue at claim construction, Acceleration refused to stipulate
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`a dismissal of those claims, forcing the issue to be ruled on at summary judgment. Acceleration’s
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`post-claim construction position on these claims was incredibly weak, and by maintaining them
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`through summary judgment, Acceleration multiplied the proceedings by forcing additional
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`1 To the extent it matters, Acceleration mischaracterizes the record, too. Over half of
`Acceleration’s originally asserted claims were invalidated. See Campbell Decl. ¶¶ 2-6.
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`6
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`

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`Case 1:16-cv-00455-RGA Document 531 Filed 04/04/22 Page 10 of 15 PageID #: 37531
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`litigation on an issue it already had admitted was dispositive.
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`B.
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`Acceleration’s Position on Standing Was Exceptionally Weak
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`Acceleration argues that the Court “never found” that Acceleration’s position on standing
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`“lacked merit.” 455 DI 524 at 13. That is incorrect. To maintain its claim against Defendants’
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`games for the Sony platform—over half of the damages base—Acceleration argued the black-
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`letter law barring its Sony claims was “dicta.” 455 DI 237 at 3-5. After noting that “Plaintiff does
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`not explain the basis for the assertion,” this Court held it was not dicta. Id. at 4. Acceleration also
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`argued that a holding of lack of standing would “render the patent completely unenforceable within
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`the scope of the right to sublicense.” Id. at 5. The Court held that argument was not “well-taken.”
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`Id. These holdings demonstrate that Acceleration’s position on this key issue was very weak.
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`C.
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`Acceleration’s Positions on Damages Were Exceptionally Weak
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`Acceleration does not deny that its damages positions were weak and repeatedly stricken,
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`ultimately leaving it with no operative damages case at all. Acceleration offers the remarkable
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`responses that this is “common” and that Take-Two “does not cite any cases, nor is Acceleration
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`Bay aware of any cases, that find the exclusion of a damages expert or limitation of damages
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`renders a case exceptional under § 285.” 455 DI 524 at 14. But Take-Two’s brief pointed to the
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`Finjan decision from last year where Judge Alsup called Finjan’s damages case a “fiasco that
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`wasted a great deal of everyone’s time and energy,” which led him to find that the entire assertion
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`of that patent “stood out as exceptional.” See 455 DI 523 at 12-13. And Acceleration’s counsel
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`were certainly “aware” of this case because they were the lawyers in that case, too.
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`III. Acceleration Fails to Excuse Its Litigation Misconduct
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`First, Acceleration argues that decisions from other courts sanctioning its counsel for
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`similar conduct are irrelevant here. But Judge Alsup identified Acceleration’s counsel by name
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`and urged that “Judges in the future should take [their conduct in Finjan] into account when dealing
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`7
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`Case 1:16-cv-00455-RGA Document 531 Filed 04/04/22 Page 11 of 15 PageID #: 37532
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`with them in future cases.” Finjan, Inc. v. Juniper Networks, No. C 17-05659 WHA, 2021 U.S.
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`Dist. LEXIS 138945, at *13-14 (N.D. Cal. July 26, 2021); see also Iris Connex, LLC v. Dell, Inc.,
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`235 F.Supp.3d 826, 850 (E.D. Tex. 2017) (sanctions based in part on prior similar misconduct).
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`Next, Acceleration points to irrelevant facts to excuse its repeated re-litigation of decided
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`issues. For example, Acceleration excuses its ever-shifting position on the invalid claim preamble
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`by noting that the Court denied Acceleration’s motion to correct an allegedly obvious error by
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`holding that the term was “subject to reasonable debate.” 455 DI 524 at 14-15. But that was not a
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`holding that Acceleration’s position was reasonable, it was a holding that the motion was meritless.
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`See Acceleration Bay LLC v. Activision Blizzard, Inc., 324 F.Supp.3d 470, 478-479 (D. Del. 2018).
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`And, finally, Acceleration responds to the Court’s questioning the candor of its national
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`counsel by saying it cooperated on schedule changes. 455 D.I. 524 at 15. But courtesy in
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`scheduling is no excuse for failing to exercise proper candor. See Anderson Mfg. Inc. v. Wyers
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`Prods. Grp. Inc., 18-0235-WJM, 2019 WL 4007772 (D. Colo. Aug. 23, 2019) (awarding full fees
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`because of counsel’s “lack of candor” despite “counsel’s high level of cooperation”).
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`IV. Acceleration’s Counsel and Alter Egos Should be Liable For Any Sanctions
`A.
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`Acceleration’s Counsel and Principal Are Alter Egos of Acceleration
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`Acceleration argues that its principal and attorneys are not its alter egos even though the
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`undisputed evidence shows that Acceleration was an uncapitalized shell company, directed and
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`controlled by counsel that presented an exceptionally weak case, and engaged in misconduct. Ex.
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`S (Ward Tr.) at 118:19-120:8
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`136:9, 155:11-157:17, 165:21-167:14, 172:1-11 (counsel obtained funding and decided how to
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`spend it); 78:8-82:10, 86:5-87:16, 103:18-106:4, 108:16-110:5, 215:7-217:2, 255:3-260:15, 264:4-
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`265:24 275:15-277:16, 283:22-284:4, 317:19-318:4 (counsel decided to acquire patents and
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`133:7-
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`8
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`Case 1:16-cv-00455-RGA Document 531 Filed 04/04/22 Page 12 of 15 PageID #: 37533
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`negotiated purchase); id. at 33:13-36:18, 38:9-40:23, 266:1-275:2, 278:12-281:5, 287:24-288:1,
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`301:8-306:14 (counsel identified accused products). Moreover, counsel structured Acceleration
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`at the very start of this case to ensure it would remain insolvent and thus immune from sanctions.
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`Contrary to Acceleration’s assertions, see 455 D.I. 524 at 16, this evidence is sufficient to pierce
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`the corporate veil. Take-Two demonstrated that Acceleration has likely been insolvent, which is
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`the most important factor in the alter ego analysis. See U.S. v. Golden Acres, Inc., 702 F.Supp.
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`1097, 1104 (D. Del. 1988). Take-Two also demonstrated that Acceleration’s counsel
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`masterminded this litigation: from finding the patents, recruiting an acquaintance to act as principal
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`of the company without requiring any investment, securing litigation funding, and structuring
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`Acceleration in a way that it would be effectively immune to monetary sanction, to litigating the
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`exceptionally weak case in an unacceptable way. 455 DI 521 at 16-17. Acceleration’s counsel
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`misused the corporate form in a way that demonstrates “an overall element of injustice or
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`unfairness.” Golden Acres, 702 F.Supp. at 1104. Those two showings are sufficient to pierce the
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`corporate veil and extend liability to those who directed and controlled the entity. And to the
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`extent the Court would like to consider the less important factors in the alter ego analysis like
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`failure to observe corporate formalities and siphoning funds, Take-Two requests that the Court
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`reopen discovery so that it can obtain this information—all of which is in the hands of
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`Acceleration’s national counsel. As it is, the financial information that Acceleration has provided
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`in discovery were documents regarding the relationship of Acceleration with “other organizations
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`involving funding, loans and operations with Plaintiff.” 453 DI 227 at 8-9 (granting Defendants’
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`motion to compel discovery). Take-Two found the amount of Acceleration’s litigation funding in
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`public records after the assets of its original funder were seized by the SEC. Acceleration resisted
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`providing complete discovery related to the less important factors.
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`9
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`Case 1:16-cv-00455-RGA Document 531 Filed 04/04/22 Page 13 of 15 PageID #: 37534
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`B.
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`Acceleration’s Counsel Are Liable Under 35 U.S.C. § 285
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`Take-Two has acknowledged that there is a split of authority between this Court and others
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`over whether counsel is liable under 35 U.S.C. § 285. Acceleration’s brief does not change that.
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`For this issue, Take-Two requests that the Court review Judge Gilstrap’s decision in Iris Connex
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`LLC v. Dell, Inc., 235 F.Supp.3d 826 (E.D. Tex. 2017), and reconsider the issue, where, as here,
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`Acceleration was established, directed, and controlled entirely by counsel.
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`C.
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`Acceleration’s Counsel May Be Found Liable Under the Court’s Inherent
`Authority
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`Acceleration also argues that its counsel should be able to shirk sanctions under the Court’s
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`inherent authority because Take-Two has not demonstrated that Acceleration litigated in bad faith.
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`This, too, is incorrect. Take-Two has demonstrated that Acceleration litigated a case based on an
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`infringement theory that was manifestly at odds with the m-regular claim construction and
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`prosecution history estoppel. Litigating an exceptionally weak case like this while demanding
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`hundreds of millions of dollars in damages (without a viable damages theory) is litigating in bad
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`faith. Acceleration’s counsel have repeatedly litigated weak cases like this one and racked up
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`sanctions against their clients while avoiding any monetary sanctions against themselves. Having
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`been forced to pay its own lawyers millions of dollars to defend against that, Take-Two believes
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`it is time to put a stop to this. The only way to do that is to make sure Acceleration’s counsel have
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`to dip into their own pockets to pay for their misconduct in creating and litigating this case.
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`V.
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`Conclusion
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`For the reasons set forth in Take-Two’s opening brief and herein, the Court should reject
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`Acceleration’s excuses, find this case exceptional, and grant Take-Two full recovery of its
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`attorneys’ fees, payable directly from Acceleration’s attorneys and alter egos.
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`10
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`

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`Case 1:16-cv-00455-RGA Document 531 Filed 04/04/22 Page 14 of 15 PageID #: 37535
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`OF COUNSEL:
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`David P. Enzminger
`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
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`Louis L. Campbell
`WINSTON & STRAWN LLP
`255 Shoreline Drive, Suite 520
`Redwood City, CA 94065
`(650) 858-6500
`
`Dan K. Webb
`WINSTON & STRAWN LLP
`35 West Wacker Drive
`Chicago, I L 60601
`(312) 558-5600
`Joseph C. Masullo
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`WINSTON & STRAWN LLP
`1700 K Street, N.W.
`Washington, DC 20006
`(202) 282-5000
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` March 28, 2022
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`MORRIS, NICHOLS, ARSHT & TUNEL LLP
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`/s/ Cameron P. Clark
`___________________________________
`Jack B. Blumenfeld (#1014)
`Cameron P. Clark (#6647)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899
`(302) 658-9200
`jblumenfeld@morrisnichols.com
`cclark@morrisnichols.com
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`Attorneys for Defendants
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`Case 1:16-cv-00455-RGA Document 531 Filed 04/04/22 Page 15 of 15 PageID #: 37536
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`CERTIFICATE OF SERVICE
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`I hereby certify that on March 28, 2022, I caused the foregoing to be electronically filed
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`with the Clerk of the Court using CM/ECF, which will send notification of such filing to all
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`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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`March 28, 2022, 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
`Hercules Plaza, 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
`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/ Cameron P. Clark
`_______________________________________
`Cameron P. Clark (#6647)
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