TRADING TECH EXHIBIT 2001
`TD Ameritrade v. Trading Technologies
`CBM2014-00133
`
`Page 1 of 23
`
`

`

`ARNOLD {Sr PORTER LLP
`
`Robert E. Sokohl, Esq.
`"July 11, 2014
`Page 2
`
`substantive work by Finnegan was required or appropriate post publication. The PTO
`would issue the registration in due course, which it in fact did.
`
`Rather than disputing that all substantive work on the SNAPTICKET matter had concluded no
`later than when the opposition period ended on May 15, 2014, you contend that “the attorney—
`client relationship was a continuing one.”
`(Emphasis added.) But, under the terms of the
`engagement agreement, the relationship ended when substantive Work was completed. The
`relationship could not continue, as the agreement defined it, absent continuing substantive work.
`You also point to the engagement agreement’s statement that registration of a mark is an
`example of when a matter might be substantially complete, but it is only that—an example. That
`example does not change the test stated in the agreement, namely that work is done when
`substantive work is Complete.
`In any event, there is no dispute that Finnegan’s disengagement
`on May 28, 2014, brought the relationship to a close-
`
`Your July 9 letter asserts for the first time that Finnegan’s work on a take—down request
`regarding the website apexwinecellarsbiz was not complete before Trading Technologies
`engaged’Finnegan. As confinned by the 'e—ma‘i‘l‘bbir'esrpondence with your client,“Finnegan
`completed its work on the take—down notice by March 2014. By March 28, the website that was
`the source of concern was no longer operational because the domain name was not renewed, as
`Finnegan notified the client in March and confirmed on June 4. No substantive work was done
`through June 5 as you argue; instead, it was completed—and successfully, too—several months
`' earlier in March 2014.
`
`The analysis above shows that TD Ameritrade’s proposed motion to disqualify would not
`be well taken, but there is also at least one other independent reason that your proposed motion
`would lack merit. TD Ameritrade agreed that Finnegan could accept unrelated matters adverse
`to TD Arneritrade even while TD Arneritrade remained a current client. You vaguely point to
`supposed law in 1999 (MSpecified by you) to suggest erroneously that the advance waiver given
`by TD Ameritrade would not be enforceable, but you do not dispute that under current law it is
`enforceable. We disagree that billing guidelines TD Ameritrade sent to Finnegan could change
`the agreed—upon waiver. In addition, the billing guidelines do not include disqualification among
`its stated purposes, which is another thing your letter does not refine.
`
`Page 2 0f 23
`
`Page 2 of 23
`
`

`

`ARNOLD & PORTER LLP
`
`Robert E. Sokohl, Esq.
`July 11, 2014
`Page 3
`
`For all of these reasons, Finnegan respectfully declines to Withdraw from representing
`Trading Technologies.
`
`Sincerely,
`
`{an r6!- £2 low ”4-,
`Sean M. SeLegue
`C
`
`cc:
`
`Erika Amer, Esq.
`
`Philip‘ Sunshine,Esq.
`
`Page 3 0f 23
`
`Page 3 of 23
`
`

`

`ROBERT E- SOKOHL
`DIRECTOR
`
`(202) 772—8677
`RSOKOL.@SKGF.COM
`
`July 9, 2014
`
`Sean M. SeLegue
`Arnold & Porter LLP
`Three Embarcadero Center
`Tenth Floor
`
`San Francisco, CA 94111—4024
`
` 5833!El
`Bulistam FUX
`ATTORNEYS AT LAW
`
`Via Email
`Sean.SeLegue@aporter.com
`
`Re:
`
`TD Ameritrade Holding Corp. v. Trading Technologies International, Inc.
`(CBM2014-0013 1) et al.
`
`Dear Mr. SeLegue:
`
`I write in response to your letter of July 7, 2014. While we appreciate your attention to
`this matter, it appears that you may have misinformation regarding the nature and status of the
`relationship between Finnegan and TD Ameritrade, and/or may not be aware of some facts that
`we believe are determinative in this matter.
`
`Most importantly, numerous facts belie the assertion that TD Ameritrade was a former A
`client of Finnegan when Finnegan embarked on the new engagement with Trading Technologies.
`In 1999, Finnegan was engaged as trademark counsel to TD Ameritrade. Since that time, the
`representation was expanded to include, for example, representation of TD Ameritrade in
`litigation, in UDRP disputes, and with various take-down campaigns. But for the last 15 years,
`TD Ameritrade and Finnegan maintained a continuous attorney—client relationship, despite the
`ebb and flow of legal work assignments that naturally happens over the course of any long term
`engagement.
`‘
`
`it had decided to
`In the year leading up to Finnegan’s sudden announcement that
`withdraw as counsel to TD Ameritrade, TD Ameritrade had regularly contacted Finnegan with
`new business. At the time of Finnegan’s announcement, there were at least two matters still
`pending:
`the SNAPTICKET1 trademark application; and a take-down request regarding the
`website apexwinecellarsbiz. I assume that you were not aware of the pending take—down matter
`because it was not mentioned in your letter; that matter was not closed out until June 5 at the
`earliest.
`
`With respect to the SNAPTICKET trademark application, the plain language of Section 5
`of the Engagement Agreement between Finnegan and TD Ameritrade controls when determining
`
`1 Please note that your letter incorrectly refers to this mark as SNAPTRADE.
`
`Sterne. Kessier, Goidstein 8: Fox atrc. : “5100 New York Avenue. NW : Washington, DC 20065 :
`Page 4 of 23
`
`t202.371.2600 {202.32’12540
`
`S K G F, C 0 M
`
`Page 4 of 23
`
`

`

`Sean M. SeLegue
`July 9, 2014
`Page 2
`
`when such a matter is considered “substantially complete”: “For example, when a patent or
`trademark registration issues, we have substantially completed our substantive work on that
`matter and will end our representation even though we may docket the payment of future
`government fees for that patent or trademark.” As you state in your letter, it appears that the
`SNAPTICKET trademark registration did not issue until July 1.
`
`Thus, Finnegan’s work for TD Arneritrade was not “substantially complete” on
`May 15, 2014, as asserted in your letter. Nothing over the 15 year engagement would have given
`TD Ameriirade any reason to believe that its relationship with Finnegan had terminated as of the
`close of the opposition period to the SNAPTICKET trademark application. Rather, at the time
`Finnegan embarked on its
`representation of Trading Technologies,
`the attomey—client
`relationship between Finnegan and TD Ameritrade was a continuing one, making the adverse
`representation prirna facie improper.
`
`Y our assertion that TD Ameritrade had “authorized Finnegan to take on matters adverse
`to TD Ameritrade so long as those matters were not substantially related to Finnegan’s work for
`TD Ameritrade” — through the advance waiver provision2 in the Engagement Agreement -
`similarly appears to miss— important facts. Significantly, TD Ameritrade clearly indicated at the
`time of engagement that Finnegan’s representation would be “Subject to the terms of a Law Firm
`Retention and Billing Policy to be agreed upon between the parties.” Finnegan was obviously
`aware of this restriction when it entered into the representation in 1999, considering it was
`written on the face of the Engagement Agreement itself,
`
`As well, the referenced Law Firm Retention and Billing Policy (the “Policy”) is more
`than merely “some billing guidelines,” as you suggest; rather,
`it is a comprehensive set of
`policies, procedures and guidelines governing all
`legal
`representation of TD Ameritrade,
`including inter alia TD Ameritrade’s requirements regarding matter staffing and management,
`budget estimates, confidentiality, and auditing rights, in addition to specific billing instructions.
`Of particular importance to this matter is provision IV.D regarding Conflicts of Interest
`(reproduced below for your convenience):
`
`You agree to advise the Legal Department at the earliest opportunity of
`any relationships your firm has with other clients which could pose a
`conflict of interest —— whether for a matter for which you are presently
`engaged or for other work which your firm could be asked to perform for
`TD Ameritrade in the future. We intend that you consider the potential
`for conflicts of interest broadly, and do not intend that you limit your
`consideration of this issue to the technical provisions of applicable Codes
`of Professional Responsibility. By agreeing to represent TD Ameritrade,
`you agree you will not hereafter accept representation of a client in a
`matter directly adverse to TD Ameritrade without the express consent of
`TD Ameritrade,
`irrespective of Whether such representation would
`technically be prohibited under applicable Codes of Professional
`Responsibility.
`
`2 We doubt that such a generalized advance waiver provision to future conflicts of interest was
`even valid and enforceable at the time the Engagement Agreement was signed.
`
`Sterne, Kassie-r, Gnldstein & Fox amt
`Page 5 0f 23
`
`: 1106 New York Avenue, NW : Wastiéngion, DC 20005 : t 202.3?12600 17202137125620
`
`5 K G F. C 0 M
`
`Page 5 of 23
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`

`

`Sean M. SeLegue
`July 9, 2014
`Page 3
`
`This Conflicts of lnterest requirement has remained substantially unchanged since the Policy was
`created.
`'
`
`The Policy has been forwarded to Finnegan periodically over the course of the parties’ 15
`year relationship, and at no point did Finnegan ever object or request any changes. As well, on
`May 30, 2014, Ms. Ellen Koplow, the General Counsel of TD Ameritrade since 2001, personally
`reiterated TD Ameritrade’s expectation that Finnegan could not be adverse to TD Ameritrade for
`some period of time following the end of the engagement, as detailed in her letter to Ms. Julia
`Matheson dated June 25, 2014. Taking all of this into consideration, we are sure you will agree
`that Finnegan cannot now reasonably assert it was unaware of the Policy, or that Finnegan was
`not subject to the Policy, or that TD Ameritrade “unilaterally” changed the terms of the
`Engagement Agreement through the Policy, both of which have been in place and in force
`between the parties for over a decade.
`
`To the extent you assert that the first paragraph of the Policy limits TD Ameritrade’s
`remedies in the event of noncompliance, and that the Policy does “not purport to address
`disqualification,” such a reading is not persuasive. As noted above, Section IV.D addresses
`Finnegan’s disqualification from engagement on matters that are directly adverse to TD
`Ameritrade. Moreover, that same first paragraph of the Policy clearly states that the Policy
`applies to “all law firms providing legal services to TD Ameritrade,” and that “By agreeing to
`represent TD Ameritrade you agree to the terms of this Policy.” The listed remedies you mention
`simply explain TD Ameritrade’s rights in the event of noncompliance, whereas Finnegan’s
`duties or responsibilities (including disqualification from adverse representations) are Spelled out
`in the body of the Policy itself.
`
`In short, Finnegan has breached its duties of loyalty and candor to TD Ameritrade, as
`well as the terms of the Engagement Agreement as supplemented by the Policy. Finnegan
`breached its duties to TD Ameritrade by taking on the representation of Trading Technologies.
`Finnegan also breached its duties to TD Ameritrade when it was not forthcoming regarding the
`contemplated representation of Trading Technologies - even when the issue was squarely
`presented to Finnegan by Ms. Koplow on May 30.
`
`For the last time, TD Ameritrade demands that Finnegan immediately withdraw from its
`representation of Trading Technologies. If Finnegan continues to refuse to withdraw from the
`representation, we will
`immediately seek authorization from the Board to file a motion to
`disqualify.
`
`Because of the looming deadline in the CBM Petitions,3 by the end of the business day on
`Thursday, July 10, please either notify us that Finnegan intends to withdraw, or convey to us
`times when Ms. Amer is available for a meet and confer regarding filing of the motion at the
`USPTO to disqualify Finnegan from further representing Trading Technologies in the pending
`CBMs.
`
`3 Please note that your letter incorrectly refers to IPR proceedings.
`
`Sterne, Kessier, Goidstein 84 Fox 913.1.
`Page 6 0f 23
`
`: 1100 New York Avenue, KW ; Weshingten, DC 2000*} : t 202.3?t.2SGO 802.372.2549
`
`S K G F. C O M
`
`Page 6 of 23
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`

`

`Sean M. SeLegue
`July 9, 2014
`Page 4
`
`Finally, we ask that you have your client put a litigation hold on all emails, draft retainer
`letters, and communications with Trading Technologies,
`including all
`internal Finnegan
`communications regarding undertaking this matter.
`
`Very truly yours,
`
`ST
`
`-,
`
`, KESSLER, GOLDSTEIN & Fox P.L.I_..C.
`
`\R
`
`obert E. Sokohl
`
`RES/ems
`
`1876091_1.DOCX
`
`Sterne, Kessler. Goidstein 8: Fox mic, : 2130518“: Yflfli Avenue, NW : Washmgton, D: 26805 ' 2202.3?12600 €202,371254G
`Page 7 0f 23
`
`S K G F. C O M
`
`Page 7 of 23
`
`

`

`ARNOLD & PORTER up
`
`Sean M. Selegue
`Sean.SeLegue@aporter.com
`
`+1 415.471.3100
`+1 415.471.3400 Fax
`
`10th Floor
`Three Embarcader‘o center
`San Francisco. CA 94111-4024
`
`July 7, 2014
`
`Robert E. Sokohl, Esq.
`Sterne, Kessler, Goldstein & Fox'
`1 100 New York Avenue,NW
`Washington, DC 20005
`
`Re: TD Ameritrade Holding Corp. v. Trading Technologies International, Inc. gCBM2014—00131) et
`31};
`
`Dear Mr. Sokohl:
`
`As Finnegan’s General Counsel indicated, Finnegan asked my office to review TD
`- Ameritrade’s assertion that Finnegan is disqualified from representing Trading Technologies in
`the above—entitled matters. We have looked into this matter thoroughly and have concluded that
`TD Amerilrade’s threatened motion to disqualify is not meritorious. Finnegan was free to accept
`Trading Technologies’ matter, which is unrelated to Finnegan’s prior work for TD Ameritrade,
`for at least two independent reasons: (1) TD Arneritrade was a former client and (2) TD
`Ameritrade had agreed that, even while a current client, Finnegan could accept unrelated work
`adverse to TD Ameritrade.
`‘
`
`At the outset, it appears that TD Ameritrade is mistaken about the rules that relate to
`former clients.
`It has long been established that a firm may accept work adverse to a former
`client that is not substantially related to the firm’s prior work for that former client immediately
`upon termination of the attorney~client relationship. ABA Model Rules of Professional Conduct, '
`Rule 1.9. There is no waiting period, as TD Ameritrade has suggested.
`
`Here, the parties agreed in the 1999 engagement agreement that their relationship would
`end when Finnegan’s work was substantively complete. That happened no later than May 15,
`2014, when no opposition was filed to the SNAPTRADE application. Once that happened, there
`was nothing substantive left to do because the PTO would register the mark in due course. The
`PTO did so on July 1, according to its website. On May 28, when Finnegan told TD Ameritrade
`it was disengaged, TD Ameritrade. was already a former client for whom Finnegan had no
`pending matters.- The effect of disengaging was simply to inform TD Ameritrade that Finnegan
`would not accept new work.
`
`34804-253v6
`
`Page 8 of 23~
`
`Page 8 of 23
`
`

`

`ARNOLD (Sr PORTER LLP
`
`Robert E. Sokohl
`
`July 7, 2014
`Page 2
`
`TD Ameritrade’s first petition seeking an inter~partes review before the USPTO adverse
`to Trading Technologies was filed after TD Ameritrade became a former client of Finnegan.
`That petition was filed on May 19, 2014. Finnegan sent an engagement agreement to Trading
`Technologies on June 3, 2014, and Trading Technologies accepted its terms on June 6, 2014.
`Pursuant to Rule 1.9 ~- because the new matter is unrelated to Finnegan’s prior work for its
`former client TD Ameritrade —— Finnegan was permitted to accept the new matter when it did.
`
`In addition, even'if TD Ameritrade were for some reason considered a current client of
`Finnegan (which it was not) when Finnegan accepted the new matter for Trading Technologies,
`the engagement agreement TD Ameritrade signed authorized Finnegan to take on matters
`adverse to TD Ameritrade so long as those matters were not substantially related to Finnegan’s
`work for TD Ameritrade. .TD Ameritrade contends that it unilaterally changed that agreement by
`sending some billing guidelines to Finnegan after the engagement agreement was signed.
`It
`would not make sense for those guidelines to override an express advance waiver agreed to by
`the parties. And even if the billing guidelines were deemed binding on Finnegan, the first
`paragraph of the guidelines you sent to us makes plain that they provide a basis only for TD
`Ameritrade to" decline to pay invoices and to terminate the relationship, not to disqualify
`Finnegan from handling other matters. The billing guidelines do not purport to address
`disqualification. As a result, disqualification remained governed by the engagement agreement
`TD Ameritrade and Finnegan both signed.
`It is well recognized that advance waivers are
`enforceable as to sophisticated clients such as TD Ameritrade who deal with'firms through their
`own in—house counsel. E.g., District of Columbia Bar Ethics Opinion 308 (“An advance waiver
`given by a client having independent counsel (in-house or outside) available to review such
`actions presumptively is valid, however, even if general in character”); Restatement of the Law
`Governing Lawyers, § 122, comment d (2000); New York City Bar Association Formal Opinion
`2006—], (“At least for a sophisticated client, blanket advance waivers and advance waivers that
`include substantially related matters (with adequate protection for client confidences and secrets)
`also are ethically permitted”).
`'
`
`_
`
`We appreciate the opportunity to clarify these matters and hope that TD Ameritrade will
`reconsider seeking authority to file a disqualification motion. Trading Technologies’ right to
`retain its counsel of choice must be given weight, in addition to TD Ameritrade’s objection to
`Finnegan’s representation of TD Ameritrade. That is particularly so when TD Ameritrade has
`shown little interest in using Finnegan’s services in recent years.
`In addition, as I am sure your
`client must agree, because the prior trademark work that Finnegan performed for TD Ameritrade
`has no relationship to the patents at issue in the IPR proceeding, Finnegan would not have
`obtained confidential
`information in its prior Work that
`is materially important
`to
`
`Page 9 0f 23
`
`Page 9 of 23
`
`

`

`ARNOLD & PORTER LLP
`
`Robert E. Sokohl
`
`July 7, 2014
`Page 3
`
`the IPR matter now before the USPTO. For these reasons, it would be unfair and inequitable
`under all of the facts and circumstances here for TD Ameritrade to be permitted to deprive
`Trading Technologies of Finnegan’ s representation-
`
`Sincerely,
`
`Sean M. SeLegue
`
`cc:
`
`Erika Amer, Esq.
`Philip Sunshine, Esq.
`
`Page 10 of 23
`
`Page 10 of 23
`
`

`

`From: Rob Sokohl <RSOKOHL sk f.com>
`
`Date: July 3, 2014 at 11:59:09 AM EDT
`
`To: "'Sunshine, Phil'” < hil.sunshine
`finne an.com>
`Cc: "Amer, Erika" <erika.arner
`finne an.com>, "SeLegue, Sean M." <Sean.SeLegue@aporter.com>, Lori Gordon
`<LGORDON@skgf.com>
`'
`Subject: RE: TD Ameritrade
`
`Dear Mr. Sunshine:
`
`Finnegan is already in possession ofTD Ameritrade's Billing Guidelines. They were provided to Finnegan as recently as
`April 2, 2014. As a courtesy, we are attaching a copy of the Billing Guidelines previously provided to Finnegan by TD
`Ameritrade.
`-
`
`We are disappointed that you only now recognize that this matter requires further analysis, instead of prior to accepting
`the representation ofTrading Technologies. The facts haven't changed. Finnegan agreed to abide by TD Ameritrade's
`Billing Guidelines and had an active matter pending when Trading Technologies retained Finnegan. The Billing
`Guidelines cannot be more clear on this point. Finnegan cannot take any matter adverse to TD Ameritrade.
`
`Because of the deadlines involved in a CBM proceeding, we cannot allow Finnegan to continue to delay. TD Ameritrade
`raised this issue with Finnegan in a letter on June 23 that explicitly referenced TD Ameritrade's guidelines. In any case,
`the time to engage outside ethics counsel was before Finnegan took on this engagement, not now—over a month later.
`
`Please respond by close of business on July 7th on whether you plan to withdraw from representation of Trading
`Technologies.
`If we do not receive a response by that time, we will take necessary actions to raise this issue with the
`Board.
`
`Rega rds—
`
`Rob
`
`Page 11 of 23
`
`Page 11 of 23
`
`

`

`From: Sunshine, Phil Imailto:thl.sunshine@finnegan.com]
`Sent: Wednesday, July 02, 2014 6:23 PM
`To: Rob Sokohl
`
`Cc: Arner, Erika; SeLegue, Sean M.
`Subject: TD Ameritrade
`
`Dear Mr. Sokohl:
`
`lam responding to your June'BO email to Erika Amer. While we continue to disagree with TD
`Ameritrade’s position, we take these matters seriously. For that reason, we have asked our outside ethics
`counsel, Sean SeLegue of Arnold & Porter, copied here, to evaluate the issues you have raised. We
`expect that he will be in touch with you next week after the July 4 holiday.
`
`in the meantime, he asks that you send him a copy of the billing guidelines referred to in your email below.
`
`Sincerely,
`
`Phil
`
`Page 12 of 23
`
`Page 12 of 23
`
`

`

`
`uksza, Csaba
`
`From:
`Sent:
`To:
`Cc:
`
`Subject:
`
`Dear Ms. Arner,
`
`Rob Sokohl [RSOKOHL@skgf.com]
`Monday, June 30, 2014 10:23 AM
`Arner, Erika
`Lori Gordon
`
`TD Ameritrade
`
`This email responds to the letter from Phil Sunshine of Finnegan Henderson to the General Counsel of TD Ameritrade,
`Ellen Koplow.
`
`The letter from Mr. Sunshine ignores several very important facts regarding Finnegan's 15 year representation ofTD
`Ameritrade (and its predecessor Ameritrade, Inc.), and falsely asserts that Finnegan has attempted to gain more work
`
`fromTD Ameritrade without success. But most importantly, Finnegan Henderson still had an active matter pending for
`TD Ameritrade prior to disengagement.
`in particular, Finnegan was handling the registration for SNAPTICKET, which was
`published on April 15, 2014. The registration has not issued yet and issues may yet arise. So, the work on this matter
`
`was not substantively completed. Finnegan's' disengagement was therefore only effective at the earliest May 28, 2014,
`
`after Finnegan Henderson was apparently engaged by Trading Technologies.
`
`Additionally, TD Ameritrade's Billing Guidelines clearly state "[b]y agreeing to represent TD Ameritrade, you agree you
`will not hereafter accept representation of a client in a matter directly adverse to TD Ameritrade without the express
`
`consent of TD Ameritrade, irrespective of whether such representation would technically be prohibited under applicable
`
`Codes of Professional Responsibility." TD Ameritrade did not consent to your representation of Trading Technologies.
`
`Your representation of Trading Technologies is therefore in direct violation of these billing guidelines that have always
`
`controlled the scope of Finnegan’s representation of TD Ameritrade.
`
`Given this clear conflict of interest, we expect Finnegan to withdraw from representation of Trading Technologies in the
`5 CBM proceedings filed by TD Ameritrade.
`
`if we do not receive confirmation of withdrawal from Finnegan by July 2, we will immediately seek authorization from
`
`the Board to file a motion to disqualify.
`
`Regards—
`
`Rob
`
`,
`
`‘
`
`inch: 5mm
`2.5533”l wedge
`4"“ giggfi 13:; %§ate-$5355.gazesaa’srggmat»:
`~
`':’
`5.
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`mm: 2 3 (332.5%?
`fax? 2393‘63546‘
`. Mam: 282333126435
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`= mmwfitfiimm
`
`
`
`fammamzaefisswané: new new
`Direct: Eflgm‘ififi‘i
`
`Notice: The information in this electronic transmission (including any attachments) may contain confidential or legally
`privileged information and is intended solely for the individua1(s) or entity(ies) named above. If you are not an intended
`recipient or an authorized agent, you are hereby notified that reading, distributing, or otherwise disseminating or copying, or
`taking any action based on the contents of this transmission is strictly prohibited. Any unauthorized interception of this
`transmission is illegal under the law. If you have received this transmission in error, please immediately notify the sender by
`return email and then destroy all copies of the transmission.
`
`1
`
`Page 13 of 23
`
`Page 13 of 23
`
`

`

`FINNEGAN
`
`
`FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, LLP
`
`WWW.FINNEGAN.COM
`
`
`PHILIP L. SUNSHINE
`202.408.6044
`phil.sunshine@finnegan.com
`
`June 25, 2014
`
`Ms. Ellen Koplow
`TD Ameritrade
`
`6940 Columbia Gateway Drive
`Suite 200
`
`Columbia, MD 21046
`
`Dear Ellen:
`
`I am writing in response to the letter from you to. Julia Matheson dated June '23,
`2014. We do not agree with the characterizations in the June 23 letter, and address the
`salient issues below.
`
`The engagement letter between TD Ameritrade and our Firm (copy attached)
`explained that our representation would end when we substantially completed our
`substantive work. The engagement letter also authorized us to take on work for other
`clients adverse to TD Ameritrade, even while representing TD Ameritrade, so long as the
`work for our other clients is not substantially related to the trademark prosecution we had
`performed for TD Ameritrade. The inter—panes patent review you mention in your letter .
`is not substantially related to our prior work because it does not involve any of the
`trademarks we handled for you.
`
`Moreover, as stated in our notice of disengagement dated May 28, 2014, our legal
`work for you had been completed prior to the date of our disengagement notice, allowing
`us to decide to no longer work for TD Ameritrade. While we are sorry to learn that you
`were disappointed by our decision, my understanding is that, despite repeated requests by
`Julia over the past several years, TD Ameritrade has declined to provide our firm With
`any new assignments. Instead TD Ameritrade left us to Complete the limited trademark
`prosecution we had in hand, as we did.
`
`Because TD Ameritrade is a former trademark client of our firm, we are permitted
`under Rule 1.9 of the DC and ABA Rules of Professional Conduct to take on work
`adverse to TD Ameritrade that is notsubstantially related to our prior work. This is
`reinforced by the wording of the engagement agreement between our Firm and
`
`Page 14 Of 23
`
`901 NEW YORK AVENUE, NW I WASHINGTON, DC 20001—4413
`'
`PHONE: 202.408.4000 I FAX: 202.408.4400
`
`Page 14 of 23
`
`

`

`_ 2 _
`
`TD Ameritrade, demonstrating that essentially the same result would apply even if TD
`Ameritrade remained a current firm client, which is not the situation.
`
`Thank you for giving us this opportunity to explain our position on this matter.
`
`Sincerely,
`-
`W7 SLAM
`
`Philip L. Sunshine
`'General Counsel
`
`Attachment
`
`cc:
`
`Julia Anne Matheson, Esq.
`Lori A. Gordon, Sterne, Kessler, Goldstein & Fox P.L.L.C.
`Robert E. Sokohl, Sterne, Kessler, Goldstein & Fox P.L.L.C.
`
`Page 15 of 23
`
`FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, LLP
`
`Page 15 of 23
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`

`

`FINNEGAN, HENDERSON, FARABOW, GARRETT 8 DUNNER,L. L. P.
`laoo I STREET, N. w.
`WASHINGTON, DC 20005-3315
`
`202 ‘ 408 ‘ 4000
`FACSlMlLE 202 - 4-08 - 4400
`
`WRJ‘I‘ER'S nutter nun. Nunez-1:
`
`202-409-4035
`
`‘
`
`May 28, 1999
`
`TOKYO
`Oil-813 -343|-6943
`BRUSSELS
`oi I-322- 646‘0353
`
`_
`CONFIRMATION
`
`'
`
`ENGA GEMENT A GREEMENT
`
`ATLANTA
`404-653-6400
`PALO ALTO
`650‘849¢6600
`
`VIA FACSlMlLE
`
`Yvonne Kisiel, Esq.
`General Counsel
`c/o Ameritrade, lnc.
`7518 New Grace Mews
`
`Columbia, MD 21048
`
`Dear Ms. Kisiel:
`
`We are delighted that Ameritrade Holding Corp. has engaged our firm to provide
`legal representation in connection with intellectual property matters. We look forward
`to serving as your counsel and will represent your interests vigorously.
`
`This engagement letter provides the terms of our representation and constitutes
`an agreement between Ameritrade Holding Corp. and the tinn'of Finnegan, Henderson,
`Farabow, Garrett & Dunner, L.L.P. Also, in accordance with tlhe Rules of Professional
`Conduct, this letter explains our fees. While we do not want to be overly formal in our
`relationship with you, we have found it a helpful practice to confirm with our clients the
`nature and terms of our representation.
`
`Please review this letter carefully and, if it meets with your approval, sign the
`enclosed copy and return it to me. We cannot begin work until we receive the signed
`copy.
`
`Terms of Engagement for Legal Services
`
`1.
`
`Definition of Client and Scope of Representation
`
`Please understand that Ameritrade Holding Corp. ("you," "your") is the client of
`Finnegan, Henderson, Farabow, Garrett & Dunner, L.L.P. 1("we," "us," "our') in this
`
`Page 16 of 23
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`Page 16 of 23
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`

`

`FINNEGAN, HENDERSON, FARABOW, GARRETT E) DUNNER, L- L. P.
`
`Yvonne Kisiel, Esq.
`May 28, 1999
`Page 2
`
`matter. You have engaged us to represent you solely in connection with trademark
`advice. You may limit or expand the scope of our representation from time to time,
`provided that we agree to any substantial expansion. 50 thatwe may avoid any conflict
`of interest, we request that you disclose to us all corporations, persons, and entities that
`may have, or may acquire, an interest in this matter. if this information changes, please
`let us know immediately.
`‘
`
`This engagement does not authorize us to act as your general counsel. Thus,
`we are not authorized to represent you in any other matter.
`In particular, we have no
`responsibility to review your insurance policies to determine ifany claim asserted in this
`matter is covered, to notify your insurance'carriers about this matter, or to advise you
`about your obligation to disclose information on this matter under the federal securities
`laws or any other applicable law, except United States intellectual property law.
`Likewise, we understand that you will not rely on us for business, investment, or
`accounting advice.
`In addition, our firm name and opinions cannot be used in
`connection with any securities offering, financial statement, or other document provided
`to any governmental agency or any investor without our express written consent.
`
`After we complete this matter and our representation ends, applicable laws or
`regulations might change and affect your future n'ghts andl liabilities. Unless you
`reengage us to advise you further on issues arising from this matter, we are not
`obligated to advise you on any'future legal developments. Also, we are not obligated
`to advise you of any renewal dates or fees due on any patents, trademarks, or
`copyrights we have obtained for you.
`
`Under this agreement, we represent only you, and not any corporate parent,
`subsidiary, or affiliate, or any of your officers, directors, or employees. Further, we
`establish an attomey—client relationship only with you. If any other corporate entities or
`individuals wish to retain our legal services, they may do so by separate agreement.
`
`2.
`
`Fees for Legal Services
`
`Unless we. agree otherwise, our charges for services are baSed upon the time
`spent by our attorneys, student associates, law clerks, legal assistants, litigation clerks,
`other nonattorney professionals, and staff at hourly rates that vary depending on the
`individual's experience, expertise, and background. Our hourly rates, currently ranging
`from $150/hr. to $475/hr. for attorneys, may change and usually do each year in the
`month of November.
`in addition to billing for time spent actually researching, writing,
`
`Page 17 of 23
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`Page 17 of 23
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`

`

`FINNEGAN, HENDERSON, FARABOW, GARRETT 8 DUNNER, L. L. P.
`
`Yvonne Kisiel, Esq.
`May 28, 1999
`Page '3
`
`and providing like services, we will bill for time spent on telephone calls, meetings,
`internal office conferences, and other activities on your behalf. We may also use
`contractors, including attorneys, to perform services such as document review and legal
`research, and their rates will be the same as, or lower than, the fees charged for our
`personnel performing the same services.
`
`We represent our clients in an efficient and cost—effective way. A partner will
`have primary responsibility for this matter and will supervise other attorneys, student
`associates,
`law clerks,
`legal assistants,
`litigation clerks, other nonattomey
`professionals, and staff who will perform services as well. The work of even our most
`experienced attorneys, including partners, is usually reviewed by other attorneys in the
`firm. We perform these functions of review and supervision to ensure that the service
`we provide meets the high standards of quality that our firm and clients expect.
`
`Certain services in the preparation, filing, prosecution, and maintenance of
`patents, trademarks, and copyrights, such as foreign-filing services and payments of
`maintenance and annuity fees, are charged at a fixed fee based upon our prior
`experience. If you request it, we are glad to provide you a list of such fees that might
`apply to your matter.
`
`Also, in certain situations our attorney services can provide a significant benefit
`that is disproportionate to the time devoted to the matter.
`in those situations, if you
`agree in advance, in addition to compensat