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`Exhibit A
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`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`ANDRA GROUP, LP,
`Plaintiff-Appellant
`
`v.
`
`VICTORIA'S SECRET STORES, L.L.C., VICTORIA'S
`SECRET STORES BRAND MANAGEMENT, INC.,
`VICTORIA'S SECRET DIRECT BRAND
`MANAGEMENT, LLC, L BRANDS, INC.,
`Defendants-Appellees
`______________________
`
`2020-2009
`______________________
`
`Appeal from the United States District Court for the
`Eastern District of Texas in No. 4:19-cv-00288-ALM-KPJ,
`Judge Amos L. Mazzant, III.
`______________________
`
`Decided: August 3, 2021
`______________________
`
`MAEGHAN WHITEHEAD, Griffith Barbee PLLC, Dallas,
`TX, argued for plaintiff-appellant. Also represented by
`CASEY GRIFFITH.
`
`RICHARD W ILLIAM M ILLER, Ballard Spahr LLP, At-
`lanta, GA, argued for defendants-appellees. Also repre-
`sented by LYNN E. RZONCA, Philadelphia, PA.
` ______________________
`
`

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`ANDRA GROUP, LP v. VICTORIA'S SECRET STORES, LLC
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`Before REYNA, MAYER, and HUGHES, Circuit Judges.
`HUGHES, Circuit Judge.
`Andra Group, LP appeals the district court’s grant in
`part of the Defendants’ motion to dismiss for improper
`venue. Because we find that venue is improper in the East-
`ern District of Texas as to the three dismissed defendants
`under 28 U.S.C. § 1400(b), we affirm.
`I
`Defendants are related companies. Andra Grp., LP v.
`Victoria’s Secret Stores, LLC, No. 4:19-cv-288, 2020 WL
`1465894 at *1 (E.D. Tex. Mar. 26, 2020) (Decision).
`L Brands, Inc. (LBI) is the corporate parent of several re-
`tailers in the apparel and home product field. Id. This case
`involves the parent LBI and several Victoria’s Secret enti-
`ties: (1) Victoria’s Secret Stores, LLC (Stores) operates the
`physical Victoria’s Secret stores; (2) Victoria’s Secret Direct
`Brand Management, LLC (Direct) manages the victori-
`assecret.com website and the Victoria’s Secret mobile ap-
`plication; and
`(3) Victoria’s Secret Stores Brand
`Management, Inc.
`(Brand) creates Victoria’s Secret
`branded intimate apparel and beauty products. Id. “LBI’s
`subsidiaries each maintain their own corporate, partner-
`ship, or limited liability company status, identity, and
`structure.” Id. Each Defendant is incorporated in Dela-
`ware. Andra Grp., LP v. Victoria’s Secret Stores, LLC,
`No. 4:19-cv-288, 2020 WL 2478546, at *2 (E.D. Tex.
`Feb. 24, 2020) (Report and Recommendation), report and
`recommendation adopted, Decision, 2020 WL 1465894.
`LBI, Direct, and Brand (collectively, the Non-Store Defend-
`ants) do not have any employees, stores, or any other phys-
`ical presence in the Eastern District of Texas (the District).
`Id. at *3. Stores operates at least one retail location in the
`District. Id. at *5.
`In April 2019, Andra sued Defendants for infringement
`of U.S. Patent No. 8,078,498 (the ’498 patent), which claims
`
`

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`inventions directed to displaying articles on a webpage, in-
`cluding applying distinctive characteristics to thumbnails
`and displaying those thumbnails in a “master display
`field.” ’498 patent 11:27–42. [J.A. 56] Andra’s infringe-
`ment claims are directed to the victoriassecret.com web-
`site, related sites, and smartphone applications that
`contain similar functionality as the website. Appellant’s
`Br. 3–4.
`Defendants moved to dismiss the infringement suit for
`improper venue under 28 U.S.C. § 1406(a), or in the alter-
`native, to transfer the lawsuit to the Southern District of
`Ohio. Andra filed an amended complaint, and the Defend-
`ants renewed their motion. Report and Recommendation,
`2020 WL 2478546, at *1. Defendants argued that venue
`was improper because Stores did not commit acts of in-
`fringement in the District and the Non-Store Defendants
`did not have regular and established places of business in
`the District.
`The magistrate judge recommended that the Non-Store
`Defendants be dismissed for improper venue but that the
`suit continue against Stores, because testimony by one
`Stores employee supported a finding of the alleged infring-
`ing acts in the District. Id. at *4–5. The magistrate judge
`did not consider transfer, because the parties had only
`briefed the issue of transfer where venue was improper
`against all the Defendants. Id. at *5. The magistrate judge
`discussed a potential division in the case, where venue was
`proper against some Defendants and improper against oth-
`ers, in a telephone conference on February 19, 2020, and
`Andra stated that it would proceed in the District against
`the Defendants who were not dismissed even if some of the
`Defendants were dismissed. Id.
`After reviewing objections by both parties to the mag-
`istrate’s report and recommendation, the district court
`adopted the findings and conclusions of the magistrate
`judge as the findings and conclusions of the court. Decision,
`
`

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`ANDRA GROUP, LP v. VICTORIA'S SECRET STORES, LLC
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`2020 WL 1465894 at *1. The district court dismissed the
`Non-Store Defendants without prejudice for improper
`venue on March 26, 2020. In a departure from its earlier
`statement that it would proceed against any Defendants
`who were not dismissed, Andra voluntarily dismissed the
`last remaining Defendant, Stores, and the district court
`subsequently dismissed all remaining claims without prej-
`udice on May 15, 2020. Andra timely filed notice of appeal
`of the dismissal of the Non-Store Defendants for improper
`venue.
`
`II
`“We review de novo the question of proper venue under
`28 U.S.C. § 1400(b).” Westech Aerosol Corp. v. 3M Co.,
`927 F.3d 1378, 1381–82 (Fed. Cir. 2019). “[T]he plaintiff
`has the burden of establishing proper venue under
`28 U.S.C. § 1400(b).” Id.
`28 U.S.C. § 1400(b) provides that “[a]ny civil action
`for patent infringement may be brought in the ju-
`dicial district where the defendant resides, or
`where the defendant has committed acts of in-
`fringement and has a regular and established place
`of business.” A “domestic corporation ‘resides’ only
`in its State of incorporation for purposes of the pa-
`tent venue statute.” TC Heartland LLC v. Kraft
`Foods Grp. Brands LLC, 137 S. Ct. 1514, 1517
`(2017).
`Because each Defendant is incorporated in Delaware,
`no defendant “resides” in Texas for the purpose of patent
`venue. Thus, to establish venue in this case, Andra must
`show that each Defendant committed acts of infringement
`and maintains a regular and established place of business
`in the Eastern District of Texas.
`To show that a defendant has a regular and established
`place of business, there are three requirements: “(1) there
`must be a physical place in the district; (2) it must be a
`
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`regular and established place of business; and (3) it must
`be the place of the defendant.” In re Cray Inc., 871 F.3d
`1355, 1360 (Fed. Cir. 2017).
`As we stated in Cray, “[t]he Supreme Court has . . . in-
`structed that ‘[t]he requirement of venue is specific and un-
`ambiguous; it is not one of those vague principles which, in
`the interests of some overriding policy, is to be given a lib-
`eral construction.’” Id. at 1361 (second alteration in origi-
`nal) (quoting Schnell v. Peter Eckrich & Sons, Inc., 365 U.S.
`260, 264 (1961)); see also In re Google LLC, 949 F.3d 1338,
`1346 (Fed. Cir. 2020) (“[T]he Supreme Court has cautioned
`against a broad reading of the venue statute.”).
`The parties do not dispute that Stores operates retail
`locations in the District, and whether venue is proper as to
`Stores is not at issue in this appeal. The question is
`whether these Stores locations can be considered “a regular
`and established place of business” of the Non-Store Defend-
`ants. In re Cray, 871 F.3d at 1360. Andra argues that
`Stores locations are “a regular and established place of
`business” of the Non-Store Defendants because Stores em-
`ployees are agents of the Non-Store Defendants, or, alter-
`natively, because the Non-Store Defendants have ratified
`Stores locations as their places of business. We address
`each argument in turn.
`
`A
` “[A] ‘regular and established place of business’ re-
`quires the regular, physical presence of an employee or
`other agent of the defendant conducting the defendant’s
`business at the alleged ‘place of business.’” In re Google,
`949 F.3d at 1345. Because there is no dispute that the Non-
`Store Defendants lack employees in the District, Andra ar-
`gues that Stores employees are agents of LBI, Direct, and
`Brand. Appellant’s Br. 13–14.
`“Agency is the fiduciary relationship that arises
`when one person (a ‘principal’) manifests assent to
`
`

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`another person (an ‘agent’) that the agent shall act
`on the principal’s behalf and subject to the princi-
`pal's control, and the agent manifests assent or oth-
`erwise consents so to act.” Restatement (Third) of
`Agency § 1.01 (Am. L. Inst. 2006). “The essential
`elements of agency are (1) the principal’s ‘right to
`direct or control’ the agent’s actions, (2) ‘the mani-
`festation of consent by [the principal] to [the agent]
`that the [agent] shall act on his behalf,’ and (3) the
`‘consent by the [agent] to act.’” In re Google, 949
`F.3d at 1345 (alterations in original) (quoting
`Meyer v. Holley, 53 U.S. 280, 286 (2003).
`Andra argues that LBI “controls store location workers
`by dictating store operations, hiring, and conduct.” Appel-
`lant’s Br. 16. Andra points to various public filings by LBI
`that speak in broad terms about real estate holdings and
`investments, contends that LBI controls the hiring and fir-
`ing of employees, and argues that because LBI requires
`Stores associates to sign and follow LBI’s Code of Conduct,
`this indicates control over the employees. Andra argues
`that Direct “controls store location workers by dictating
`their handling of returns of merchandise purchased on the
`[Victoria’s Secret] website.” Id. at 18. Finally, Andra ar-
`gues that Stores employees are agents of Brand because
`Brand “‘closely controls the distribution and sales of its
`products’ exclusively available through store locations and
`the [w]ebsite.” Id. at 19 (quoting J.A. 799–801 ¶¶ 11, 13,
`15–16). Andra also contends that Brand’s control over the
`Victoria’s Secret website “strengthens the agency relation-
`ship with [] Brand.” Id. at 19–20.
`We considered a similar agency question in In re
`Google. There, a plaintiff sued Google for patent infringe-
`ment in the Eastern District of Texas, alleging that venue
`was proper based on the presence of several Google Global
`Cache servers in the District. In re Google, 949 F.3d at
`1340. Google did not own the datacenters where the servers
`were hosted but contracted with two internet service
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`

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`providers (ISPs) in the district to host the servers. Id. The
`contracts included several limitations including: restrict-
`ing “the ISPs’ ability to relocate the servers without
`Google’s permission,” limiting unauthorized access to the
`space used by Google’s servers, requiring the ISPs to pro-
`vide “installation services,” forbidding the ISPs from ac-
`cessing, using, or disposing of the servers without Google’s
`permission, and requiring the ISPs to provide “remote as-
`sistance services” involving basic maintenance activities
`performed on the servers by the ISP’s on-site technician, if
`requested by Google. Id. at 1340–41.
`The relevant inquiry was “whether the ISPs [were] act-
`ing as Google’s agent.” Id. at 1345. We held that although
`the installation of the servers and provision of mainte-
`nance may suggest an agency relationship, the installation
`activity was a “one-time event for each server” that did not
`constitute the conduct of a “regular and established” busi-
`ness, and “SIT ha[d] not established that the ISPs perform-
`ing the specified maintenance functions [were] conducting
`Google’s business within the meaning of the statute.” Id.
`at 1346.
`Here, as in Google, none of Andra’s arguments are suf-
`ficient to show that Stores employees are agents of the
`Non-Store Defendants. None of the public filings cited by
`Andra demonstrate LBI’s control, because they are docu-
`ments covering all of LBI’s brands. The documents’ use of
`“we” does not convey that “we” means LBI specifically, but
`that “we” could include the individual subsidiary brands,
`like Stores. See J.A. 452, 846. Andra’s contention that LBI
`controls the hiring and firing of store employees is directly
`contradicted by the testimony of the store manager for the
`Plano, Texas store, Lisa Barcelona, who stated during her
`deposition that she, a Stores employee, interviews associ-
`ates and makes offers of employment. J.A. 642–43. She also
`testified that she decides whether to fire employees and
`that she does not need any approval before doing so, and
`that it is she who holds Stores employees at her store
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`ANDRA GROUP, LP v. VICTORIA'S SECRET STORES, LLC
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`accountable for following the Code of Conduct, not LBI.
`Thus, none of the facts alleged by Andra are sufficient to
`prove that Stores employees are agents of LBI, because LBI
`does not have “the right to direct or control” Stores employ-
`ees, an essential element of an agency relationship. In re
`Google, 949 F.3d at 1345.
`Additionally, while Stores locations accepting returns
`of Direct merchandise purchased on the website is a service
`that may benefit Direct, Andra has not shown that Direct
`controls this process. This one discrete task is analogous to
`the ISPs’ installation and maintenance of the servers in
`Google, which we found insufficient to establish an agency
`relationship. Id. at 1346. Finally, Brand’s close control of
`its products and the website does not equate to “the right
`to direct or control” employees at the physical Stores loca-
`tions in the District. Id. at 1345.
`For the above reasons, we agree with the district court
`that Andra has not established that any of the Non-Store
`Defendants exercise the degree of control over Stores em-
`ployees required to find an agency relationship.
`B
`Andra’s second venue theory is that the Non-Store De-
`fendants ratified Stores locations as their own places of
`business such that Non-Store Defendants may be said to
`maintain a regular and established place of business in the
`District.
`A threshold inquiry when determining whether the
`place of business of one company can be imputed to an-
`other, related company is whether they have maintained
`corporate separateness. If corporate separateness has not
`been maintained, the place of business of one corporation
`may be imputed to the other for venue purposes. But where
`related companies have maintained corporate separate-
`ness, the place of business of one corporation is not imputed
`to the other for venue purposes. See Cannon Mfg. Co. v.
`
`

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`Cudahy Packing Co., 267 U.S. 333, 334–35 (1925); 14D
`Charles Alan Wright & Arthur R. Miller, Federal Practice
`and Procedure § 3823 & nn.25–26 (4th ed.).
`Andra does not argue that the Defendants have not
`maintained corporate separateness. Andra contends that
`each of the Non-Store Defendants has ratified the retail
`stores as its own based on the criteria outlined in In re
`Cray, including “whether the defendant owns or leases the
`place, or exercises other attributes of possession or control
`over the place,” “the storing of materials at a place in the
`district so that they can be distributed or sold from that
`place,” and the “defendant’s representations that it has a
`place of business in the district.” 871 F.3d at 1363.
`Andra argues (1) that LBI has ratified store locations
`through its control over store operations and by holding out
`store locations as its own; (2) that Direct has ratified store
`locations by allowing merchandise purchased online to be
`returned in stores and by directing customers to store loca-
`tions using the “Find a Store” feature; and (3) that Brand
`has ratified store locations by distributing and selling its
`merchandise from Store locations and because it is listed
`as the registrant for the Victoria’s Secret website.
`But “the mere fact that a defendant has advertised that
`it has a place of business or has even set up an office is not
`sufficient; the defendant must actually engage in business
`from that location.” In re Cray, 871 F.3d at 1364 (emphasis
`added). Andra has not shown that the Non-Store Defend-
`ants actually engage in business at Stores locations. Andra
`asserts that the Non-Store Defendants maintain a “unified
`business model” with Stores, asserting many of the same
`facts it set forth in support of its agency theory, but the fact
`that the entities work together in some aspects, as dis-
`cussed above, is insufficient to show ratification. See In re
`ZTE(USA) Inc., 890 F.3d 1008, 1015 (Fed. Cir. 2018) (hold-
`ing that a contractual relationship between two entities
`“does not necessarily make [the first company’s] call center
`
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`‘a regular and established place of business’ of [the second
`company] in the [district]”).
`Several additional factors weigh against a finding of
`ratification here. The Non-Store defendants do not own or
`lease Stores locations; Stores leases and performs all oper-
`ations at the retail locations. Decision, 2020 WL 1465894
`at *5. The Victoria’s Secret website’s “Find a Store” feature
`points consumers to Stores locations, not Non-Store De-
`fendants locations. J.A. 829. The Non-Store Defendants do
`not display their corporate names in the retail locations.
`Decision, 2020 WL 1465894 at *5. Non-Store Defendants
`carry out different business functions than Stores. Id. And
`the companies’ shared use of “Victoria’s Secret” in their
`name does not detract from the separateness of their busi-
`nesses. Giving “reasoned consideration to all relevant fac-
`tors or attributes of the relationship” between Stores and
`Non-Store Defendants, Andra has not met its burden to
`show that Non-Store Defendants have ratified Stores loca-
`tions as their own places of business such that Non-Store
`Defendants may be said to maintain a regular and estab-
`lished place of business in the District.
`III
`All three Cray factors must be met for venue to be
`proper against a defendant. The second Cray factor, a “‘reg-
`ular and established place of business’ requires the regu-
`lar, physical presence of an employee or other agent of the
`defendant conducting the defendant’s business at the al-
`leged ‘place of business.’” In re Google, 949 F.3d at 1345.
`Because Andra has not demonstrated that LBI, Brand, or
`Direct has “the right to direct or control” the actions of
`Store employees, id. at 1346, it has not shown the “regular,
`physical presence of an employee or other agent” of LBI,
`Brand, or Direct in the District. The Defendants have also
`maintained corporate formalities and Andra has not shown
`that Non-Store Defendants ratified Stores locations in the
`District as their own places of business. We therefore
`
`

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`affirm the district court’s decision that venue was not
`proper in the District as to the Non-Store Defendants.
`AFFIRMED
`
`