Case: 1:10-cv-00715 Document #: 609 Filed: 07/15/15 Page 1 of 5 PageID #:26521
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`
`
`
`
`)
`
`
`)
`
`
`)
`
`
`)
`
`
`)
`
`
`)
`
`
`)
`
`
`)
`
`
`)
`
`
`)
`
`
`)
`
`
`)
`
`Case No. 10 C 715
`(Consolidated with:
`10 C 716, 10 C 718, 10 C 720,
`10 C 721, 10 C 726, 10 C 882,
`10 C 883, 10 C 884, 10 C 885,
`10 C 929, 10 C 931)
`
`Judge Virginia M. Kendall
`
`
`
`
`
`
`
`
`
`
`
`
`
`TRADING TECHNOLOGIES
`INTERNATIONAL, INC.
`
`
`
`
`
`
`
`
`
`Plaintiff,
`
`
`
`
`
`
`v.
`
`
`
`
`
`
`
`
`BGC PARTNERS, INC.
`
`
`
`
`
`
`
`
`
`Defendant.
`
`
`
`
`
`
`
`RESPONSE OF CERTAIN DEFENDANTS TO
`TRADING TECHNOLOGIES’ “EMERGENCY” MOTION
`
`Defendants TradeStation Securities, Inc. & TradeStation Group, Inc., IBG LLC &
`
`Interactive Brokers LLC, and CQG, Inc. & CQGT, LLC (“Defendants”)1 hereby respond to
`
`Plaintiff Trading Technologies’ “emergency” motion (ECF No. 604) for an order “confirming
`
`that stay is lifted.”
`
`As an initial matter, Defendants note that there is no “emergency” here. Under the
`
`Court’s Standing Order, an emergency filing requires a party to identify serious harm justifying
`
`special treatment, which TT has not done and cannot do.2 Moreover, TT’s motion curiously
`
`
`
`1 Defendant FuturePath Trading, LLC filed its own statement responding to TT’s motion (ECF
`No. 607) and did not participate in this response.
`2 TT’s purported emergency is the oral argument set for early August in its appeal of this Court’s
`CBM stay order. But this is a problem of TT’s own making. TT, as the appellant, can simply
`move to dismiss its appeal in light of the TDA settlement and which no party would oppose. In
`fact, defendants explicitly agreed in a meet-and-confer to not oppose a simple motion to dismiss
`the appeal, but TT insisted on including additional language that they believed would be
`potentially prejudicial to defendants in a stipulation. When defendants would not agree to the
`additional language TT wanted beyond a simple dismissal, TT instead sought emergency relief
`from this Court.
`
`Page 1 of 5
`
`
`
`
`
`TRADING TECH EXHIBIT 2030
`IBG ET AL. v. TRADING TECH
`CBM2015-00181
`
`

`
`Case: 1:10-cv-00715 Document #: 609 Filed: 07/15/15 Page 2 of 5 PageID #:26522
`
`
`
`seeks an order “confirming” that the stay is lifted. It is Defendants’ understanding that the proper
`
`procedure would be simply to move to lift the stay.
`
`Setting aside the issue of whether this is an “emergency” and TT’s apparent
`
`circumvention of normal case management procedures (otherwise used throughout this case),
`
`Defendants note that (1) the Patent Trial and Appeal Board (“PTAB”) found it more likely than
`
`not that claims in four of the patents asserted here are, in fact, unpatentable, and (2) the
`
`proceeding that would have finally decided those validity issues was unexpectedly terminated on
`
`the eve of trial as a result of a settlement. Counsel for the remaining Defendants were not privy
`
`to those settlement discussions and did not receive advance notice that the PTAB proceedings
`
`would be terminated such that the validity issues would not in fact be adjudicated.
`
`The serious validity concerns raised by those now-terminated PTAB proceedings thus
`
`remain unresolved. To that end, Defendants plan to request that the PTAB decide the validity of
`
`TT’s patents, by refiling challenges to most (if not all) of the patents-in-suit. Defendants plan to
`
`ask that the PTAB give expedited treatment at least as to those patents which were on the cusp of
`
`trial, since the record has already been fully developed as to those cases, and thus avoid any
`
`unnecessary delay. Given these very recent developments, Defendants respectfully request a
`
`short period of time to coordinate on these PTAB actions. Defendants expect a Covered
`
`Business Method Review Petition on one of the patents in suit to be filed by Monday, July 20,
`
`with additional petitions to be filed in the coming weeks.
`
`Finally, although Defendants agree the AIA provision upon which the Court granted the
`
`instant stay no longer would be the basis for a stay order, there is no case law cited by TT, and
`
`Defendants in the time permitted have found none, that shows a stay automatically dissolves
`
`without permitting the Court or the parties to address future action. The parties should have a
`
`
`
`
`2
`
`
`
`Page 2 of 5
`
`

`
`Case: 1:10-cv-00715 Document #: 609 Filed: 07/15/15 Page 3 of 5 PageID #:26523
`
`
`
`fair opportunity to address proceedings going forward. Defendants thus suggest that the Court
`
`hold a status conference in approximately four to six weeks, in advance of which the parties can
`
`advance proposals for the further conduct of this proceeding, including a proposal that the Court
`
`further stay the litigation pursuant to its own inherent discretionary powers to manage its docket.
`
`Defendants would brief and show the Court that the best use of its resources, the parties
`
`resources, and fairness and management of the case. Indeed, that the PTAB is highly likely to
`
`institute further CBM review, at a minimum as to those patents which it already determined were
`
`likely invalid and had reached the eve of trial at the PTAB, which supports a stay. Alternatively,
`
`sound case management requires an informed plan of action or competing plans, preferably
`
`discussed among counsel for all parties, be presented.
`
`3
`
`
`
`
`
`
`
`
`Page 3 of 5
`
`

`
`Case: 1:10-cv-00715 Document #: 609 Filed: 07/15/15 Page 4 of 5 PageID #:26524
`
`
`
`
`
`
`
`Respectfully submitted,
`
`
`
`Date: July 15, 2015
`
`
`
`
`/s/ Adam G. Kelly
`Counsel for CQG, et al.
`(Case No. 10-CV-0718):
`Adam G. Kelly
`Loeb & Loeb LLP
`321 N. Clark Street, Suite 2300
`Chicago, IL 60654
`akelly@loeb.com
`
`
`
`
`
`
`/s/ Steven P. Mandell
`Counsel for Interactive Brokers, LLC et al.
`(Case No. 10-CV-721):
`Michael B. Levin
`Wilson Sonsini Goodrich & Rosati
`650 Page Mill Road
`Palo Alto, CA 94304
`mlevin@wsgr.com
`
`Steven P. Mandell
`1 N. Franklin Street, Suite 3600
`Chicago, IL 60606
`smandell@mandellmenkes.com
`
`
`
`
`
`/s/ David J. Healey
`TradeStation, et al.
`(Case No. 10-CV-884):
`David J. Healey
`Fish & Richardson P.C.
`One Houston Center
`1221 McKinney, Suite 2800
`Houston, TX 77010
`healey@fr.com
`
`
`
`
`
`
`
`
`
`
`Page 4 of 5
`
`

`
`Case: 1:10-cv-00715 Document #: 609 Filed: 07/15/15 Page 5 of 5 PageID #:26525
`
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on July 15, 2015, I electronically filed the foregoing document with the Clerk
`of the Court using the CM/ECF system which will send notification of such filing to the following
`persons at the given email addresses:
`
`
`
`Counsel for TradeStation, et al.
`(Case No. 10-CV-884):
`David J Healey
`Fish & Richardson P.C.
`One Houston Center
`1221 McKinney, Suite 2800
`Houston, TX 77010
`healey@fr.com
`
`George Summerfield
`Stadheim & Grear
`Wrigley Tower - 22nd Floor
`400 North Michigan Avenue
`Chicago, Illinois 60611
`summerfield@stadheimgrear.co
`m
`
`Counsel for SunGard, et al.
`(Case No. 10-CV-716):
`Lora A. Moffatt
`Crowell & Moring LLP
`590 Madison Avenue, 20th Floor
`New York, NY 10022-2544
`lmoffatt@crowell.com
`
`Philippe Bennett
`Alston & Bird, LLP
`90 Park Avenue
`New York, NY 10016-1387
`pbennett@alston.com
`
`
`
`/s/ Steven P. Mandell
`
`
`
`
`Counsel for FuturePath, Inc.
`(Case No. 10-CV-0720):
`Lora A. Moffatt
`Crowell & Moring LLP
`590 Madison Avenue, 20th Floor
`New York, NY 10022-2544
`lmoffatt@crowell.com
`
`Philippe Bennett
`Alston & Bird, LLP
`90 Park Avenue
`New York, NY 10016-1387
`pbennett@alston.com
`
`Counsel for Interactive
`Brokers, et al. (10-CV-721):
`Michael Levin
`Wilson Sonsini Goodrich &
`Rosati
`650 Page Mill Road
`Palo Alto, CA 94304
`mlevin@wsgr.com
`
`Steven P. Mandell
`1 N. Franklin Street, Suite 3600
`Chicago, IL 60606
`smandell@mandellmenkes.com
`
`Counsel for TD Ameritrade, et
`al. (Case No.10-CV-883):
`Michael Levin
`Wilson Sonsini Goodrich &
`Rosati
`650 Page Mill Road
`Palo Alto, CA 94304
`mlevin@wsgr.com
`
`Steven P. Mandell
`1 N. Franklin Street, Suite 3600
`Chicago, IL 60606
`smandell@mandellmenkes.com
`
`
`
`5
`
`
`
`Counsel for Open E Cry, et al.
`(Case No. 10-CV-885):
`Daniel D. Rubinstein
`Greenberg Traurig, LLP
`77 W. Wacker Drive
`Suite 3100
`Chicago, IL 60601
`rubinsteindd@gtlaw.com
`
`James J. Lukas , Jr
`Greenberg Traurig, LLP
`77 West Wacker Drive
`Suite 3100
`Chicago, IL 60601
`lukasj@gtlaw.com
`
`Douglas Weider
`Greenberg Traurig Llp
`200 Park Avenue
`Florham Park, NJ 07932
`weiderd@gtlaw.com
`
`Counsel for CQG, et al.
`(Case No. 10-CV-0718):
`Kara Cenar
`Bryan Cave LLP
`161 N. Clark Street, Suite 4300
`Chicago, IL 60601-3315
`kara.cenar@bryancave.com
`
`Adam G. Kelly
`Loeb & Loeb LLP
`321 N. Clark Street, Suite 2300
`Chicago, IL 60654
`akelly@loeb.com
`
`
`
`
`
`
`Page 5 of 5