Paper No. __
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`_________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_________________
`
`
`TARGET CORPORATION
`Petitioner
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`v.
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`DESTINATION MATERNITY CORPORATION
`Patent Owner
`
`__________________
`
`Case IPR2013-00533
`Patent No. RE43,531 E
`__________________
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`Filed: September 16, 2014
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`
`
`Before JENNIFER S. BISK, MICHAEL J. FITZPATRICK, and
`MITCHELL G. WEATHERLY, Administrative Patent Judges.
`
`
`PETITIONER’S OPPOSITION TO
`PATENT OWNER’S MOTION TO EXCLUDE EVIDENCE
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`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`_________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_________________
`
`
`TARGET CORPORATION
`Petitioner
`
`v.
`
`DESTINATION MATERNITY CORPORATION
`Patent Owner
`
`__________________
`
`Case IPR2013-00533
`Patent No. RE43,531 E
`__________________
`
`Filed: September 16, 2014
`
`
`
`Before JENNIFER S. BISK, MICHAEL J. FITZPATRICK, and
`MITCHELL G. WEATHERLY, Administrative Patent Judges.
`
`
`PETITIONER’S OPPOSITION TO
`PATENT OWNER’S MOTION TO EXCLUDE EVIDENCE
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`
`
`
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`TABLE OF CONTENTS
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`I.
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`STATEMENT OF RELIEF REQUESTED .................................................... 1
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`II. MATERIAL FACTS IN DISPUTE ................................................................ 1
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`III. ARGUMENT ................................................................................................... 1
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`A.
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`The Thomas Declaration Is Entirely Proper .......................................... 1
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`1.
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`2.
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`3.
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`4.
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`Thomas Properly Offers Testimony that Green’s Finding
`of “Commercial Success” Is Factually Deficient for
`Failing to Show the Requisite Nexus .......................................... 2
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`Thomas Permissibly Uses the Terms Not “Relevant” and
`Not “Reliable” in Their Ordinary Sense to Describe His
`View of Green’s Analysis and Opinions .................................... 7
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`Thomas’s Report Properly Accompanied Target’s Reply
`in Support of Its Petition ............................................................. 9
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`There Is No Danger of Prejudicing a “Jury” in this
`Proceeding ................................................................................... 9
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`B.
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`C.
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`Asada Is Relevant Because It Shows that the Purported
`“Implicit” Teachings DMC Finds in the Specification of the
`Patents-at-Issue Encompass Explicit Teachings of the Prior Art ....... 10
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`DMC’s Purported “Communications with Competitors” Show
`the Inconsistencies Between DMC’s Current, Narrow Claim
`Construction and What It Used in Prior Infringement
`Allegations ........................................................................................... 12
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`IV. CONCLUSION .............................................................................................. 15
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`US.54877236.01
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`I.
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`STATEMENT OF RELIEF REQUESTED
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`Pursuant to 37 C.F.R. § 42.23(a), Petitioner Target Corporation (“Target” or
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`“Petitioner”) hereby opposes Patent Owner Destination Maternity Corporation’s
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`(“DMC” or “Patent Owner”) Motion to Exclude Evidence (Paper 49) (“Motion to
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`Exclude”) and requests that the Board deny DMC’s Motion to Exclude in full.
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`II. MATERIAL FACTS IN DISPUTE
`Target disputes some of DMC’s “Material Facts,” (see Paper 49, 2-3):
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`1.
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`In paragraph 3, Target disputes that “Exhibits 1071, 1072, 1075-1077,
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`1080-1083, 1086-1090, and 1092” all constitute “communications between Patent
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`Owner and its competitors.” Exs. 1071, 1072, 1090 are not communications to or
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`from DMC, and Exs. 1089 and 1092 are internal DMC communications.
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`2.
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`Further, Target does not admit the relevance, truth, or materiality of
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`any fact whose relevance, truth, or materiality may be necessary for DMC to
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`prevail on one or more of the grounds set forth in its Motion to Exclude but which
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`DMC failed to explicitly set forth in its “Statement of Material Facts.”
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`III. ARGUMENT
`A. The Thomas Declaration Is Entirely Proper
`As DMC acknowledges, and Target does not dispute, “Thomas admits that
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`he is not an attorney, and his job is not to provide legal opinions.” (Paper 49, at 4-
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`5.) Thomas does not purport to opine on what the law is, and Target does not offer
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`Thomas as a legal expert. Notably, DMC does not argue that Thomas is
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`unqualified to offer opinions on the issues of commercial success or nexus; indeed,
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`he is highly qualified to offer such opinions. (Ex. 1111; see also Ex. 1110, ¶¶ 1-4.)
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`Thomas’s Declaration, filed as Exs. 1110 and 1116, contains page after page
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`of detailed analysis, based on facts, supporting and explaining his opinions—all of
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`which DMC had the opportunity to explore on cross examination, (see Ex. 2099).
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`See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 595 (1993) (“Vigorous
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`cross-examination, presentation of contrary evidence, and careful instruction on the
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`burden of proof are the traditional and appropriate means of attacking . . .
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`evidence.”); U.S. v. 14.38 Acres of Land Situated in Leflore Cnty., Miss., 80 F.3d
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`1074, 1078 (5th Cir. 1996). Thomas’s testimony comports with Rule 702 and
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`should be admitted. See FED. R. EVID. 702. Even assuming, arguendo, that
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`DMC’s objections to Thomas’s testimony have merit (which they do not), they go
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`to its weight, not its admissibility.
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`1. Thomas Properly Offers Testimony that Green’s Finding of
`“Commercial Success” Is Factually Deficient for Failing to
`Show the Requisite Nexus
`Obviousness “is a legal conclusion based on underlying facts.” Galderma
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`Labs., L.P. v. Tolmar, Inc., 737 F.3d 731, 736 (Fed. Cir. 2013). Among other
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`“[f]actual considerations that underlie the obviousness inquiry include . . . any
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`relevant secondary considerations,” such as, among others, “commercial success.”
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`Id. Thomas’s expert testimony embodies his opinions on the factual issue of
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`commercial success, and, in particular,
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` (the Ҥ 103-
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`Rejected Claims,” (see Paper 42, at 5)). (See generally Ex. 1110.) Thomas’s
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`testimony is proper, and DMC’s motion should be denied, for several reasons:
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`First, the subject matter of Thomas’s testimony, which responds to “Green’s
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`analysis and opinions,” (see id. ¶ 7), is well within the province of expert opinion.
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`Similar to the overarching issue of “commercial success,” see Galderma, 737 F.3d
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`at 736, whether a nexus exists is, in part, a “factual[]” inquiry, Demaco Corp. v. F.
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`Von Langsdorff Licensing Ltd., 851 F.2d 1387, 1393 (Fed. Cir. 1988); see Pro–
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`Mold & Tool Co. v. Great Lakes Plastics, Inc., 75 F.3d 1568, 1574 (Fed. Cir.
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`1996) (finding existence of a nexus to be a “factual dispute[]”); In re Huang, 100
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`F.3d 135, 140 (Fed. Cir. 1996) (requiring “factual evidence” of a nexus).
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`The Federal Rules of Evidence permit expert testimony to “help the trier of
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`fact to understand the evidence or to determine a fact in issue.” FED. R. EVID.
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`702(a) (emphasis added). The existence of a nexus, or lack thereof, between
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`purported “commercial success” and the claims at issue is entirely within the
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`bounds of appropriate subject matter for expert testimony. Indeed, courts have
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`found that expert testimony on commercial success that does not address the nexus
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`requirement fails to comport with Rule 702. See Cot’n Wash, Inc. v. Henkel Corp.,
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`Nos. 12-650-SLR, 12-651-SLR, 2014 WL 4245871, at *15-*16 (D. Del. Aug. 26,
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`2014) (“Because no nexus has been demonstrated between the commercial success
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`of the unit dose laundry products and the ’319 patent’s 7.5% water content
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`limitation, the court excludes [under Rule 702] Dr. Kong’s and Dr. Gering’s
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`testimony regarding commercial success.”); Medicines Co. v. Mylan Inc., No. 11-
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`cv-01285, 2014 WL 1227214, at *5-*6 (N.D. Ill. Mar. 25, 2014) (excluding, under
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`Rule 702, an expert’s “commercial success opinions because he has failed to opine
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`or prove that a nexus exists between the novel features of the . . . patent and any
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`alleged commercial success”); Accentra Inc. v. Staples, Inc., No. CV 07-5862 ABC
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`(RZx), 2010 WL 8569058, at *2-*5 (C.D. Cal. Nov. 1, 2010) (same);
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`DataTreasury Corp. v. Wells Fargo & Co., No. 2:06-cv-00072-DF, 2010 WL
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`3912264, at *1, *4 (E.D. Tex. Sept. 13, 2010) (same). Thus, just as Green was
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`required show that a nexus exists (which he failed to do1), Thomas is entitled to
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`show—and, thus, opine, as he has—that Green’s nexus analysis is factually
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`deficient.
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`Second, DMC ignores how the procedural issues and evidentiary
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`1 As Target contends in its Motion to Exclude,
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`. (See Paper 42.)
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`presumptions underlying the nexus analysis inform the nature of Thomas’s
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`testimony. DMC bears the burden of proof to show a nexus between purported
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`“commercial success” and the claims at issue. Demaco, 851 F.2d at 1392. “In
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`meeting its burden of proof, the patentee in the first instance bears the burden of
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`coming forward with evidence sufficient to constitute a prima facie case of the
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`requisite nexus.” Id. “A prima facie case of nexus is generally made out when the
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`patentee shows both that there is commercial success, and that the [product] that is
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`commercially successful is the invention disclosed and claimed in the patent” and
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`is “coextensive with the patented invention.” Id.; Brown & Williamson Tobacco
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`Corp. v. Philip Morris Inc., 229 F.3d 1120, 1130 (Fed. Cir. 2000).
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`The coextensivity requirement is separate from, and means something more
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`than, the requirement that the patent claims at issue cover, or read on, the
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`commercial product in question. See id.; Rambus, Inc. v. Hynix Semiconductor,
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`254 F.R.D. 597, 602 (N.D. Cal. 2008) (“The reason for the first part of this inquiry
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`is obvious: . . . If the product does not read on the claim, there can be no relevance
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`of the product’s commercial success to whether the claim is obvious or not.”).
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`Thus, “for a presumption [of nexus] to attach, the patentee must also show that the
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`claimed invention is ‘coextensive’ with the product.” Id. “This requirement
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`accommodates the reality that many products embody dozens of patents or features
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`and that their success or failure cannot solely be attributed to any particular one.”
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`Id. “When the patentee has presented a prima facie case of nexus, the burden of
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`coming forward with evidence in rebuttal shifts to the challenger . . . .” Demaco,
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`851 F.2d at 1393.
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`“Evidentiary presumptions set the burdens of proof and production, but they
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`do not affect the determination of issues of law.” Anhydrides & Chems., Inc. v.
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`U.S., 130 F.3d 1481, 1465 (Fed. Cir. 1997). Thus, a prima facie showing of nexus
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`(or lack thereof) is not a legal conclusion that the patentee has (or has not) carried
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`its burden of proving that a nexus exists; rather, it means that the patentee has (or
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`has not) shown sufficient facts to shift to its opponent the burden of producing
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`facts in rebuttal. See Demaco, 851 F.2d at 1392-93; see also Microsoft Corp. v. i4i
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`Ltd. P’ship, 131 S. Ct. 2238, 2245 n.4 (2011) (noting that the term “‘burden of
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`proof’ . . . identif[ies] the party who must persuade the jury in its favor to prevail,”
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`while the term “‘burden of production’ []specif[ies] which party must come
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`forward with evidence at various stages in the litigation”).
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`”2 (Ex. 1110, at 15 n.36.) Thomas does not offer or even
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`2 Thomas’s understanding comports with the law. See Demaco, 851 F.2d at 1392.
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`purport to offer an opinion on the issue of law to which his opinions relate—
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`whether DMC ultimately has met its burden of proving that a nexus exists.
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`Third, far from being a “legal conclusion,” as DMC complains, (Paper 49, at
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`5), Thomas’s opinion that Green
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` is entirely permissible here. Even to the
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`extent whether a nexus exists could be considered an “ultimate issue” here, an
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`expert’s “opinion is not objectionable just because it embraces an ultimate issue.”
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`FED. R. EVID. 704(a). Moreover, “[t]he Federal Circuit has approved expert
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`testimony regarding the ultimate issues of infringement and validity provided that
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`the expert is qualified to testify in the relevant field.” Branovations, Inc. v. Ontel
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`Prods. Corp., No. 2:12-cv 00306, 2014 WL 407577, at *4 (M.D. Fla. Feb. 3, 2014)
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`(citing Sundance, Inc. v. Demonte Fabricating Ltd., 550 F.3d 1356, 1363-64 (Fed.
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`Cir. 2008)). Therefore, expert testimony from a qualified expert, such as Thomas,
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`on whether a nexus exists—a sub-issue within the commercial-success aspect of
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`the secondary-considerations element of the obviousness analysis—is equally
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`permissible. Thomas’s opinion is not objectionable simply because it finds that
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`.
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`2. Thomas Permissibly Uses the Terms Not “Relevant” and
`Not “Reliable” in Their Ordinary Sense to Describe His
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`View of Green’s Analysis and Opinions
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`Thomas opines that
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`Thomas describes the context of this opinion in the very next paragraph:
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`(Id. ¶ 11.) These statements simply reflect and summarize Thomas’s overall
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`opinion that
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`. (See generally Ex. 1110.)
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`DMC argues that merely by using the words “relevant” and “reliable,”
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`Thomas’s opinion is converted into an improper “Rule 702 exclusion opinion.”
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`(Paper 49, at 6.) But Target does not offer Thomas to opine on whether Green’s
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`testimony comports with Rule 702, and Thomas does not purport to do so.3
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`3 For example, other than a citation supporting the overall number of SFB
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`products that Green analyzed, Target does not rely on Thomas’s opinions in its
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`Motion to Exclude Green’s testimony pursuant to Rule 702. (See Paper 42.)
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`Instead, Thomas uses those terms not in their legal, term-of-art sense, but in their
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`ordinary sense to express his opinion that
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`. See, e.g., U.S. v. Beaumont, 972 F.2d 553, 565 (5th Cir.
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`1992) (holding that, viewed in context, expert witness’s use of the term
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`“conspiracy” in his testimony “was a factual rather than a legal conclusion”); In re
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`Commercial Loan Corp., 396 B.R. 730, 740 (Bankr. N.D. Ill. 2008) (“That [an
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`expert] happens to use the word ‘conduit’ . . . , a word that appears in some judicial
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`decisions, does not turn his opinion into a legal one.”). Moreover, “[e]ven if the
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`everyday understanding of a term and its legal meaning are congruent, exclusion
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`[of an expert opinion] is inappropriate where the opinion . . . [is] based on
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`‘adequately explored legal criteria’” that “explain the reasons underlying the
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`ultimate conclusion.” Richman v. Sheahan, 415 F. Supp. 2d 929, 947-48 (N.D. Ill.
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`2006). Thomas’s report contains page after page of detailed analysis, based on
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`facts, supporting and explaining his opinions. Thomas’s testimony is proper.
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`3. Thomas’s Report Properly Accompanied Target’s Reply in
`Support of Its Petition
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`DMC argues that Thomas’ report impermissibly extends the 15-page limit
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`under 37 C.F.R. § 42.24(c)(1), because it purportedly include “pages of legal
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`argument.” (Paper 49, at 7.) As shown above, Thomas’s opinions are factual and
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`not legal in nature. Therefore, DMC’s argument must be rejected.
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`4. There Is No Danger of Prejudicing a “Jury” in this
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`Proceeding
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`In this proceeding before the Board, where there is no “jury” that could be
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`prejudiced and where the Board decides both the facts and the law, there is little
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`danger that the Board will be unable to discern, or give appropriate weight to,
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`expert testimony, such as Thomas’s. See Grand Traverse Band of Ottawa &
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`Chippewa Indians v. U.S. Attorney for the W. Dist. of Mich., 46 F. Supp. 2d 689,
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`693-94 (W.D. Mich. 1999); see also Berckeley Inv. Grp., Ltd. v. Colkitt, 455 F.3d
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`195, 217 (3d Cir. 2006). Thus, even to the extent, arguendo, certain portions of
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`Thomas’s testimony could be construed as offering legal conclusions, the Board
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`should not exclude his testimony in toto, but rather should simply accord
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`appropriate weight to any conclusions in view of the remainder of his testimony.
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`B. Asada Is Relevant Because It Shows that the Purported “Implicit”
`Teachings DMC Finds in the Specification of the Patents-at-Issue
`Encompass Explicit Teachings of the Prior Art
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`DMC argues that Japanese Utility Model Application No. 3086624 to Asada
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`(“Asada”), filed as Ex. 2037, is irrelevant because it is “outside the instituted
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`grounds” of invalidity in this proceeding. (Paper 49, at 7-8.) Target agrees that
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`Asada is not part of the instituted grounds, but that does not render Asada
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`irrelevant. “Evidence is relevant if: (a) it has any tendency to make a fact more or
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`less probable than it would be without the evidence; and (b) the fact is of
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`consequence in determining the action.” FED. R. EVID. 401. In general, “[r]elevant
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`evidence is admissible.” FED. R. EVID. 402. There is no dispute that Asada is prior
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`art to the Patents-at-Issue.4 Target is permitted to show DMC’s technical expert’s,
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`Brookstein, and DMC’s inconsistent positions on the teachings of the Patents-at-
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`Issue compared to those of the prior art, such as Asada, (see Paper 37, at 3-4),
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`through the use of hypothetical questions during Brookstein’s deposition. See,
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`e.g., Wilburn v. Maritrans GP Inc., 139 F.3d 350, 356 (3d Cir. 1998) (“[A]
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`qualified expert may answer hypothetical questions.”); see also FED. R. EVID. 703
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`(“An expert may base an opinion on facts or data in the case that the expert has
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`been made aware of or personally observed.”).
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`Target does not purport to use Asada “to try to invalidate the instituted
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`claims” in this proceeding. (Paper 49, at 7.) And Target’s use of Asada does not
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`“raise a new issue here.” (Id. at 8-9.) Rather, Target properly uses Asada on reply
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`to show that DMC’s interpretation of the Patents-at-Issue and their claims is
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`inconsistent with DMC’s interpretation of the prior art, which DMC first advanced
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`in its Patent Owner’s Response. Asada is relevant here. FED. R. EVID. 401.
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`Moreover, because Target agrees that the Board did not use Asada as a basis
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`to institute this proceeding, and because the Board is well aware of that fact, the
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`nature of Target’s reliance on Asada in this proceeding does not trigger any of the
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`dangers that may lead to exclusion under Rule 403. DMC’s prejudice argument
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`4 U.S. Patent Nos. RE43,531 (“’531 Patent”) and RE43,563 (“’563 Patent”).
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`rings hollow, since Brookstein cited various prior art patents in his declaration
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`accompanying DMC’s Response, ostensibly to support DMC’s arguments. (See
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`Ex. 2017, ¶¶ 19-20.) None of those patents relate to the instituted grounds. Thus,
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`Asada is admissible here, FED. R. EVID. 402, and DMC’s motion should be denied.
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`C. DMC’s Purported “Communications with Competitors” Show the
`Inconsistencies Between DMC’s Current, Narrow Claim
`Construction and What It Used in Prior Infringement Allegations
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`The Board should deny DMC’s request to exclude the documents filed as
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`Exs. 1071, 1072, 1075-1077, 1080-1083, 1086-1090, and 1092.
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`Exs. 1071 and 1072 are
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`; both were used as exhibits during Brookstein’s
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`deposition. (Ex. 1078, at 272:9-281:12.) Brookstein annotated Ex. 1072 to
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`is a hang tag from a product
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` (Id. at 280:18-281:12.) Ex. 1090
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` (Ex. 1089.) Ex. 1090 shows that the product was advertised as
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`shapewear to control a wearer’s “muffin-top,” which, along with Ex. 1089,
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`contradicts DMC’s current position that claim 1 in each of the Patents-at-Issue
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`requires “a belly panel that expands to a degree commensurate with covering a
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`pregnant abdomen,” (Paper 25, at 18 (emphasis added)). Exs. 1089 and 1092 are
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`internal DMC communications. Ex. 1089 merely summarizes an external meeting,
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`and Ex. 1092 conveys internal notes from
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`None of the foregoing documents are communications between DMC and a
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`competitor; none mentions any “claim” whatsoever, let alone a “disputed claim”;
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`and none contains an offer of “a valuable consideration” or “compromise
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`negotiations” about a “disputed claim.” Accordingly, they are not protected under
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`Rule 408. See FED. R. EVID. 408.
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`The remaining documents in question, Exs. 1075-1077, 1080-1083, and
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`1086-1088, also are not protected under Rule 408. Ex. 1075 is a letter from
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`counsel for DMC
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`. Ex. 1076 is the same letter, annotated by
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`one of the named inventors of the Patents-in-Suit, Lisa Hendrickson, during her
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`deposition. (Ex. 1119, at 105:15-111:20.) Both were used as exhibits in
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`Brookstein’s deposition. (Ex. 1078, at 305:16-315:8.) Ex. 1077 is a letter from
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`counsel for DMC
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`, which Brookstein annotated
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`during his deposition. (Ex. 1078, at 315:11-318:24.) All three documents were
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`used to probe Brookstein’s opinions on claim construction and scope. Ex. 1080 is
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`a letter from counsel for DMC
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`, and Ex. 1081 is an
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` Ex. 1082 merely evidences the conveyance of
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`correspondence between counsel from DMC and
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`,
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`such as Ex. 1083,
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` Ex. 1086 is clearer copy of Ex. 1075. Ex.
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`1087 is a letter from counsel for DMC
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`, and Ex. 1088 is a
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`. Rule 408 does not apply for several reasons:
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`First, none of the statements in the foregoing documents were made during
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`litigation. Under Federal Circuit law, Rule 408 “expressly relates to evidence of
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`efforts toward compromising or attempting to compromise a claim in litigation.”
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`SanDisk Corp. v. STMicroelectronics, Inc., 480 F.3d 1372, 1375 n.1 (Fed. Cir.
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`2007) (emphasis added). Rule 408 in inapplicable for this reason alone.
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`Second, as a “general principle,” “Rule 408 only bars the use of compromise
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`evidence to prove the validity or invalidity of the claim that was the subject of the
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`compromise, not some other claim.” Uforma/Shelby Bus. Forms, Inc. v. NLRB,
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`111 F.3d 1284, 1293-94 (6th Cir. 1997) (quotations omitted). That is, “Rule 408
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`does not require the exclusion of evidence regarding the settlement of a claim
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`different from the one litigated.” Towerridge, Inc. v. T.A.O., Inc., 111 F.3d 758,
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`770 (10th Cir. 1997). Thus, even assuming, arguendo, that any of the documents
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`could be found to otherwise fall within Rule 408, none of them pertain to a
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`“disputed claim” at issue in this proceeding,
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`but rather to the invalidity of certain claims thereof.
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`Third, apart from Exs. 1087 and 1088, (a) none of the documents threaten
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`litigation or evidence discussions that had “crystallized to the point of threatened
`
`US.54877236.01
`
`-14-
`
`
`
`
`
`litigation” and so the documents constitute mere “business communications and
`
`not compromise negotiations,” see Big O Tire Dealers, Inc. v. Goodyear Tire &
`
`Rubber Co., 561 F.2d 1365, 1372-73 (10th Cir. 1977); and (b) “there is nothing . . .
`
`to indicate that [any statement in the documents] could be properly considered an
`
`‘offer’ to settle a claim which was then in dispute.” SanDisk, 480 F.3d at 1375 n.1.
`
`Contrary to DMC’s arguments, the foregoing documents are relevant and
`
`properly cited on reply to show how Dr. Brookstein’s opinion—and, thus, DMC’s
`
`current position—on claim construction, which DMC first set forth in its Patent
`
`Owner’s Response, is far narrower, requiring a far higher panel, than the
`
`construction DMC employed
`
`. (See Paper 37,
`
`at 6-7 (citing ASM Am., Inc. v. Genus, Inc., 401 F.3d 1340, 1347 (Fed. Cir. 2005)).)
`
`Moreover, it is highly unlikely that DMC could be unfairly prejudiced or confused
`
`by its own
`
`IV. CONCLUSION
`
`. See FED. R. EVID. 403.
`
`
`
`The Board should deny DMC’s Motion to Exclude in all respects.
`
`Dated: September 16, 2014
`
`By:
`
`
`
`/s/ Norman J. Hedges
`Norman J. Hedges (Reg. No. 44,151)
`FAEGRE BAKER DANIELS LLP
`300 N. Meridian St., Ste. 2700
`Indianapolis, IN 46204-1750
`Telephone: 317-237-0300
`Facsimile: 317-237-1000
`Norman.Hedges@FaegreBD.com
`
`US.54877236.01
`
`-15-
`
`
`
`
`
`CERTIFICATE OF SERVICE
`
`Pursuant to 37 C.F.R. § 42.6(e), I hereby certify that I caused a true and
`correct copy of the foregoing Petitioner’s Opposition to Patent Owner’s Motion to
`Exclude Evidence to be served via e-mail, as a PDF file attachment, on September
`16, 2014, on the following:
`
`Paul A. Taufer
`Michael L. Burns
`DLA PIPER LLP (US)
`One Liberty Place
`1650 Market St., Ste. 4900
`Philadelphia, PA 19103-7300
`Telephone: (215) 656-3385
`Facsimile:
`(215) 606-3385
`Paul.Taufer@dlapiper.com
`Michael.Burns@dlapiper.com
`
`Stuart E. Pollack
`DLA PIPER LLP (US)
`1251 Avenue of the Americas
`27th Floor
`New York, NY 10020-1104
`Telephone: (212) 335-4964
`Facsimile:
`(212) 884-8464
`Stuart.Pollack@dlapiper.com
`
`
`Dated: September 16, 2014
`
`
`
`/s/ Norman J. Hedges
`Norman J. Hedges (Reg. No. 44,151)
`FAEGRE BAKER DANIELS LLP
`300 N. Meridian St., Ste. 2700
`Indianapolis, IN 46204-1750
`Telephone: 317-237-0300
`Facsimile: 317-237-1000
`Norman.Hedges@FaegreBD.com
`
`By:
`
`US.54877236.01
`
`
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