Case 1:05-cv-0.1
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`Document 106
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`Filed 11/02‘
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`Page 1 of 8
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`Civil Action No. 05-481 1
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`Judge James B. Moran
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`Magistrate Judge Cole
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`Trading Technologies International, Inc.,
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`Plaintiff,
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`v.
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`CQGT, LLC and CQG, Inc.
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`Defendants.
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`TRADING TECHNOLOGIES INTERNATIONAL, INC ’S
`MOTION TO REASSIGN AND CONSOLIDATE
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`Trading Technologies International, Inc. ("Trading Technologies") has seven pending
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`actions in this jurisdiction involving infringement of the same two patents--U.S. Patent No.
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`6,766,304 ("the '304 patent") and US. Patent No. 6,772,132 ("the '132 patent") (collectively “the
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`patents-in-suit”). Three of these actions, including this case (“the CQG Illinois Action”), Trading
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`Technologies International, Inc. v. eSpeed, Inc., eSpeed International, Ltd. Ecco LLC and
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`Ecco Ware Ltd, No. 04 C 5312 (“the eSpeed case”), and Rosenthal Collins Group, LLC v Trading
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`Technologies International, Inc., No. 05 C 4088, are before your Honor in this Court.1 The
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`seventh case, CQG v. Trading Technologies International, Inc., was transferred from the District
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`Court for the District of Colorado to Judge Darrah of the Northern District on October 2, 2006,
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`and was assigned Civil Action No. 06 C 5222 (the “Transferred CQG Action”). All seven
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`1 The remaining actions are: 1) Trading Technologies International, Inc. v. REFC0 Group Ltd., LLC,
`REFCO, LLC, and REFC0 EasySolutions, LLC, No. 05 C 1079 (Judge Andersen); 2) Trading
`Technologies International, Inc. v. GL Consultants, Inc., GL Trade SA, NYFIX, Inc., and NYFIX
`Overseas, lnc., No. 05 C 4120 (Judge Gottschall); and 3) Trading Technologies International, Inc. v.
`FuturePath Trading, LLC, N0. 05 C 5164 (Judge Shadur).
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`CQG EXHIBIT 1010
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`CQG EXHIBIT
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`1010
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`Document 106
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`Filed 11/02‘
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`Page 1 of 8
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`Civil Action No. 05-481 1
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`Judge James B. Moran
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`Magistrate Judge Cole
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`Trading Technologies International, Inc.,
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`Plaintiff,
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`v.
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`CQGT, LLC and CQG, Inc.
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`Defendants.
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`TRADING TECHNOLOGIES INTERNATIONAL, INC ’S
`MOTION TO REASSIGN AND CONSOLIDATE
`
`Trading Technologies International, Inc. ("Trading Technologies") has seven pending
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`actions in this jurisdiction involving infringement of the same two patents--U.S. Patent No.
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`6,766,304 ("the '304 patent") and US. Patent No. 6,772,132 ("the '132 patent") (collectively “the
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`patents-in-suit”). Three of these actions, including this case (“the CQG Illinois Action”), Trading
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`Technologies International, Inc. v. eSpeed, Inc., eSpeed International, Ltd. Ecco LLC and
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`Ecco Ware Ltd, No. 04 C 5312 (“the eSpeed case”), and Rosenthal Collins Group, LLC v Trading
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`Technologies International, Inc., No. 05 C 4088, are before your Honor in this Court.1 The
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`seventh case, CQG v. Trading Technologies International, Inc., was transferred from the District
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`Court for the District of Colorado to Judge Darrah of the Northern District on October 2, 2006,
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`and was assigned Civil Action No. 06 C 5222 (the “Transferred CQG Action”). All seven
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`1 The remaining actions are: 1) Trading Technologies International, Inc. v. REFC0 Group Ltd., LLC,
`REFCO, LLC, and REFC0 EasySolutions, LLC, No. 05 C 1079 (Judge Andersen); 2) Trading
`Technologies International, Inc. v. GL Consultants, Inc., GL Trade SA, NYFIX, Inc., and NYFIX
`Overseas, lnc., No. 05 C 4120 (Judge Gottschall); and 3) Trading Technologies International, Inc. v.
`FuturePath Trading, LLC, N0. 05 C 5164 (Judge Shadur).
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`CQG EXHIBIT 1010
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`CQG EXHIBIT
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`1010
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`Case 1:05—cv-0.1
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`Document 106
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`Filed 11/02/2& Page 2 of 8
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`currently pending Trading Technologies cases are nearly identical as they each involve charges
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`of infringement and invalidity of same two patents, and all of the cases with the exception of the
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`Transferred CQG Action have already been assigned to this Court for coordination of discovery.
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`Pursuant to Local Rule 40.4, Trading Technologies now requests that the Transferred
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`CQG Action be reassigned to this Court and consolidated with the CQG Illinois Action. This
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`Court has already indicated that it believes this to be the appropriate course of action in its
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`opinion denying CQG’s Motion to Dismiss or Transfer. Memorandum Opinion and Order of
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`October 31, 2005, Docket Entry No. 26 at 7 (“[W]e accept jurisdiction and believe that the
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`Colorado court should transfer the related case to Illinois for consolidation with [the CQG
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`Illinois Action].”)
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`I.
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`FACTUAL BACKGROUND
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`On August 17, 2005, CGQ filed a suit in the District Court for the District of Colorado
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`(“the Colorado Action”) seeking declaratory judgment of non-infiingement and invalidity of the
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`patents-in-suit. On August 19, 2005, TT filed a complaint against CQG in the District Court for
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`the Northern District of Illinois (Case No. 05-C-4811, “the Illinois Action”). The Illinois Action
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`was assigned to this Court. As indicated above, several additional actions between TT and
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`various defendants alleging infringement of the patents-in-suit are assigned to this Court for
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`coordinated discovery.
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`TT sought to dismiss the CQG Colorado Action or have it transferred to the Northern
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`District of Illinois because TT still believed it was involved in licensing negotiations with CQG
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`at the time CQG filed suit, and thus that CQG did not have the requisite reasonable apprehension
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`of suit to confer declaratory judgment jurisdiction. Similarly, CQG sought to dismiss the CQG
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`0002
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`Case 1:05-cv-O.1
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`Document 106
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`Filed “NZ/2% Page 3 of 8
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`Illinois Action or transfer it to Colorado, arguing that its first filed action was valid and should
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`stand.
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`On October 31, 2005,
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`this Court denied CQG’s motion to dismiss or transfer, and
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`indicated that the Colorado Action should be transferred to the Northern District of Illinois for
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`consolidation with the Illinois Action. Memorandum Opinion and Order of October 31, 2005,
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`Docket Entry No. 26 at 7 (“[W]e accept jurisdiction and believe that the Colorado court should
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`transfer the related case to Illinois for consolidation with [the CQG Illinois Action].”)
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`On November 22, 2005, in an attempt to overcome the decision of this Court denying
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`CQG’s motion to transfer or dismiss, CQG served a first amended complaint in the Colorado
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`Action adding claims for patent misuse, violation of Section 2 of the Sherman Act, and violation
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`of Colorado antitrust and consumer protection laws.2 On December 22, 2005, TT filed a
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`Renewed Rule 12 Motion to Dismiss, Stay or Transfer [the Colorado Action] Pursuant to 28
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`U.S.C. § 1404 (“Renewed Rule 12 Motion”). On the same day, TT also filed a Motion to Strike
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`Certain Allegations and Dismiss Claims II-V of CQG’s First Amended Complaint (“Motion to
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`Strike”).
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`On June 26, 2006, CQG filed a motion for leave to amend its answer in the Illinois
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`Action to add claims substantially identical
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`to the claims pending in the Colorado action
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`(“Motion to Amend”; Docket Nos. 84 and 85). This Court continued the motion, and it is
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`presently still pending in the Illinois Action.
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`On September 21, 2006, Judge Blackburn of the District of Colorado granted TT’s
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`Renewed Rule 12 Motion, denied the Motion to Strike as moot, and ordered the Colorado Action
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`transferred to the United States District Court for the Northern District of Illinois.
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`The
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`2 This Court dismissed similar Sherman Act and Illinois state law unfair competition claims in the RCG case.
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`0003
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`Case 1:05—cv-0.1
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`Document 106
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`Filed 11/02/2‘
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`Page 4 of 8
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`transferred action was assigned to Judge Darrah of the Northern District as Civil Action No. 06-
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`C-5222.
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`11.
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`THIS CASE POSES PRECISELY THE FACTUAL SITUATION
`CONTEMPLATED BY LOCAL RULE 40.4 AS PARTICULARLY
`APPROPRIATE FOR REASSIGNMENT AND CONSOLIDATION
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`Local Rule 40.4 permits later-filed actions to be reassigned to the calendar of another
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`judge if the later—filed actions are related to an earlier-filed action. Under Local Rule 40.4(a),
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`cases may be related if they involve the same property or if the cases involve some of the same
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`issues of fact or law. L.R. 40.4(a)(1), (a)(2). In this case, the later-filed action, i.e. the
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`Transferred Action is related to the first-filed CQG Illinois Action because they both involve
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`infringement of the '132 and '304 patents by CQG’S products, and CQG’s allegations of
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`invalidity and unenforceability.
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`The Courts look to four factors in assessing reassignment pursuant to Local Rule 40.4(b):
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`(1) both cases are pending in this District; (2) the handling of both cases by the same judge is
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`likely to result in a substantial saving ofjudicial time and effort; (3) the earlier case has not
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`progressed to the point where designating a later-filed case as related would be likely to delay the
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`proceedings in the earlier case substantially; and (4) the cases are susceptible of disposition in a
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`single proceeding. Local Rule 40.4(b). None of these factors are seriously in dispute, and each
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`weighs in favor of reassignment.
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`Both cases are pending in the Northern District of Illinois, and reassignment and
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`consolidation would result in a substantial saving ofjudicial time and effort because the cases
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`involve the same patents, the same prior art, the same infringing products for trading futures, and
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`substantially the same issues of fact and law. See Sage Prods. v. Devon Indus, and Becton,
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`0004
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`0004
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`Case 1:05—cv-0.1
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`Document 106
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`Filed HIM/2% Page 5 of 8
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`Dickinson and Co., 148 F.R.D. 213 (N.D. Ill. 1993) (discussing grant of motion to reassign
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`patent suit that involved same plaintiff and same patents).
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`This Court's handling of these related cases would enhance efficiency because this Court
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`has already invested substantial time and effort to become familiar not only with the two patents
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`in suit and numerous provisions of the patent claims, but also with general concepts related to
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`state-of-the-art and prior art electronic trading systems, futures, and the roles of the various
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`participants (e.g., independent software vendors ("ISVs"), traders, FCMs, exchanges) in the
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`electronic trading universe. In addition, this Court has already conducted a Markman hearing in
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`the eSpeed case, in which CQG was a participant. Because of this Court's prior experience in
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`overseeing the related litigation against eSpeed involving the same two patents and undoubtedly
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`many of the same legal issues, this Court is in a unique position to conserve judicial resources by
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`also handling the Transferred Action.
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`Common oversight by this Court this would also provide an opportunity to protect
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`numerous third parties from wasteful repetitive discovery. Instead, this court is already
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`coordinating discovery for third parties among all the litigants in all the pending TT cases other
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`than the Transferred Action, preventing third parties from multiple depositions and discovery
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`requests.
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`Third, there is no likely delay to the CQG case. Because the parties are already
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`addressing CQG’s issues in the CQG Illinois Action, and because no deadlines have been set in
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`that case, nor will they be set until after resolution of the bellwether eSpeed case, CQG still has
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`ample time to obtain discovery related to its defenses, even with reassignment and consolidation.
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`Finally, the two cases are susceptible of having common issues resolved in a single
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`proceeding, because the issues are identical.
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`0005
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`0005
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`Case 1 :05—cv-O.1
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`Document 106
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`Filed HIM/2* Page 6 of 8
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`Thus, because TT has demonstrated that each of the requirements of the Local Rules are
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`met, and because the Court itself has recognized the propriety and desirability or reassignment
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`and consolidation, this Court should grant TT’s motion,
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`III.
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`CONCLUSION
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`This Court has already noted the efficiencies in having the Transferred Action reassigned
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`and consolidated with the pending CQG Illinois Action.
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`'IT agrees, and therefore respectfully
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`requests that this Court grant TT’s Motion to Reassign and Consolidate.
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`Date: November 2, 2006
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`Respectfully submitted,
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`By: /s/ S. Richard Carden
`Paul H. Berghoff (ID No. 6180462)
`Leif R. Sigmond, Jr. (ID No. 6204980)
`Matthew J. Sampson (ID No. 6207606)
`George I. Lee (I.D. No. 6224430)
`S. Richard Carden (ID No. 6269504)
`Jennifer M. Swartz (ID No. 6279893)
`McDonnell Boehnen Hulbert & Berghoff LLP
`300 South Wacker Drive
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`Chicago, Illinois 60606
`Tel.: (312) 913-0001
`Fax: (312) 913-0002
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`Steven F. Borsand (ID No. 6206597)
`Trading Technologies International, Inc.
`222 South Riverside
`Suite 1100
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`Chicago, IL 60606
`Tel: (3 12) 476- 1000
`Fax: (312) 476-1182
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`Attorneys for Plaintiff,
`TRADING TECHNOLOGIES
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`INTERNATIONAL, INC.
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`0006
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`0006
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`Case 1:05-cv-0.1
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`Document 106
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`Filed 11/02/2‘
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`Page 7 of 8
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that a copy of the foregoing TRADING
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`TECHNOLOGIES INTERNATIONAL, INC.’S MOTION TO REASSIGN AND
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`CONSOILIDATE was served on November 2, 2006, as follows:
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`Via Email and US. First Class Mail:
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`Counselfor eSpeed, et al..'
`Andrew Johnstone
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`Counselfor CQG, Inc. and CQGT, LLC:
`Kara E. F. Cenar
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`(aj ohnstone@winston.com)
`Raymond Perkins
`(rperkins@winston.com)
`Winston & Strawn LLP
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`35 W. Wacker Drive
`Chicago, IL 60601
`Main Tel: 312-558-5600
`Fax: 312-558-5700
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`Counselfor REFC0:
`Karen Nelson
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`(knelson@kirkland.com)
`Kirkland & Ellis LLP
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`200 East Randolph Dr.
`Chicago, IL 60601
`Tel: 312-861-3206
`Fax: 312-861-2200
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`Counselfor Rosenthal Collins Group:
`Geoffrey A. Baker
`(gabaker@dowel1baker.com)
`Dowell Baker, RC.
`229 Randolph St.
`Oak Park, IL 60302
`Tel: 708-660-1413
`Fax: 312-873-4466
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`Jeffrey Schulman
`(jschulman@wolinlaw.com)
`Wolin & Rosen, Ltd.
`55 West Monroe Street, Suite 3600
`Chicago, IL 60603
`Tel: 312-458-1244
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`Fax: 312-424-0660
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`(kcenar@bellboyd.com)
`Heather A. Boice
`(hboice@bellboyd.com)
`Jeana R. Lervick
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`(ilervick@bellboyd.com)
`Bell, Boyd & Lloyd, LLC
`70 W. Madison Street, Suite 3100
`Chicago, IL 60602-4207
`Main Tel: 312-372-1121
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`Direct Tel: 3 12-807-4414
`Direct Fax: 312-827-7068
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`Mark W. Fischer
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`(MFischer@faegre.com)
`Faegre & Benson, LLP
`1900 Fifteenth Street
`Boulder, CO 80302
`Tel: 303-447-7700
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`Fax: 303-447-7800
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`0007
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`0007
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`Case1:05-cv—O.1 Document106 Filed11/02/2‘
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`Page80f 8
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`Via Email:
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`Counselfor GL Consultants, Inc., GL Trade SA, and FuturePath Trading LLC:
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`Brian W. Norkett
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`(b_norkett@hotmail.com)
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`Alison G. Naidech
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`(anaidech@salans.com)
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`Phillippe Bennett
`(pbennett@alston.com)
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`Walter Scott
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`(wscott@alston.com)
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`Lara Holzman,
`(lholzman@alston.com)
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` Counselfor GL Consultants, Inc., GL Trade SA, and FuturePath Trading LLC:
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`Via Email and Federal Ex; ress:
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`Lora A. Moffatt
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`(lmoffatt@salans.com)
`Salans
`Rockefeller Center
`620 Fifth Ave
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`New York, NY 10020-2457
`Main Tel: 212-632-8436
`Main Fax: 212-307-3320
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`_/s/ S. Richard Garden
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`0008
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`0008
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