Case 2:23-cv-00059-JRG Document 18 Filed 03/19/24 Page 1 of 39 PageID #: 230
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`TOUCHSTREAM TECHNOLOGIES,
`INC.,
`
`
`
`
`
`Plaintiff,
`
`v.
`
`
`CHARTER COMMUNICATIONS,
`INC., et al.,
`
`
`
`
`
`Defendant.
`
`
`
`Case No. 2:23-cv-00060-JRG (Lead Case)
`
`This Document Relates To
`Case No. 2:23-cv-00059-JRG
`(Member Case)
`
`JURY TRIAL DEMANDED
`
`
`
`
`
`
`
`PLAINTIFF TOUCHSTREAM TECHNOLOGIES, INC.’S OPPOSITION TO
`DEFENDANT CHARTER COMMUNICATIONS, INC., ET AL.’S AMENDED
`MOTION TO DISMISS FOR IMPROPER VENUE AND FOR FAILURE TO
`STATE A CLAIM FOR WILLFUL INFRINGEMENT
`
`
`
`
`
`
`
`
`
`
`

`

`Case 2:23-cv-00059-JRG Document 18 Filed 03/19/24 Page 2 of 39 PageID #: 231
`
`TABLE OF EXHIBITS
`
`Exhibit No.
`
`Description
`
`A
`
`B
`
`C
`
`D
`
`E
`
`F
`
`G
`
`H
`
`I
`
`J
`
`K
`
`L
`
`M
`
`N
`
`Memorandum Opinion and Order in Entropic v. Charter, Case
`No. 2:22-cv-00125 (E.D. Tex. May 3, 2023), Dkt. 91
`(CHARTER_TOUCHSTREAM_00000649–668)
`Charter Org. Chart as of June 30, 2022 – C. Kovach Dep. Ex. 10
`(CHARTER_TS0002891–2893)
`Deposition Transcript of Thomas Proost dated December 2,
`2022 in Entropic v. Charter, Case No. 2:22-cv-00125 (E.D.
`Tex.) (CHARTER_TOUCHSTREAM_00000130–183)
`Deposition Transcript of Connie Kovach dated February 29,
`2024
`Amended and Restated Limited Liability Company Agreement
`between Time Warner Cable Texas LLC and Charter
`Communications, Inc. dated May 18, 2016
`(CHARTER_TOUCHSTREAM_00000375–390)
`Lease Agreement between Polo Towne Crossing, LLC and
`Spectrum Gulf Coast, LLC dated March, 27, 2020
`(CHARTER_ENTROPIC00046409–46435)
`Master Purchase Agreement between Charter and ARRIS
`Solutions dated January 1, 2012
`(CHARTER_TOUCHSTREAM_00000501–512.)
`Deposition Transcript of Daniel Boglioli dated December 13,
`2022 in Entropic v. Charter, Case No. 2:22-cv-00125 (E.D.
`Tex.) (CHARTER_TOUCHSTREAM_00000071–125)
`Charter Communications, Inc. Senior Officers and Directors as
`of March 31, 2023 – C. Kovach Dep. Ex. 11
`(CHARTER_TS0005157)
`Charter Communications Operating, LLC Officer List as of
`March 31, 2023 – C. Kovach Dep. Ex. 12
`(CHARTER_TS0005153–5155)
`Spectrum Gulf Coast, LLC Officer List as of March 31, 2023 –
`C. Kovach Dep. Ex. 13 (CHARTER_TS0005162–5164)
`Spectrum TV, APPLE APP STORE, available at
`https://apps.apple.com/us/app/spectrum-tv/id420455839 (last
`visited Feb. 26, 2024) – C. Kovach Dep. Ex. 15
`Spectrum TV, MICROSOFT STORE, available at
`https://apps.microsoft.com/detail/9MVSBC4GLG8J?hl=en-
`US&gl=US (last visited Dec. 26, 2023) – C. Kovach Dep. Ex. 16
`History 2010s, CHARTER COMMC’NS, available at
`https://corporate.charter.com/history (last visited Mar. 11, 2024)
`
`ii
`
`
`
`
`
`

`

`Case 2:23-cv-00059-JRG Document 18 Filed 03/19/24 Page 3 of 39 PageID #: 232
`
`Exhibit No.
`
`Description
`
`O
`
`P
`
`Q
`
`R
`
`S
`
`T
`
`U
`
`V
`
`W
`
`X
`
`Y
`
`Z
`
`Charter Communications, Inc. Form 10-K for the fiscal year
`ended December 31, 2022
`Entropic’s Opposition to Charter’s Motion to Dismiss the
`Second Amended Complaint for Improper Venue Pursuant to
`FRCP 12(b)(3) in Entropic v. Charter, Case No. 2:22-cv-00125
`(E.D. Tex. Feb. 21, 2023)
`(CHARTER_TOUCHSTREAM_00000297–332)
`Spectrum – 2100 N Dallas Pkwy, SPECTRUM, available at
`https://www.spectrum.com/locations/tx/plano/2100-n-dallas-
`pkwy (last visited Mar. 5, 2024)
`About Charter, CHARTER COMMC’NS, available at
`https://corporate.charter.com/about-charter (last visited Mar. 6,
`2024)
`Charter Shareholder Report, CHARTER COMMC’NS, available at
`https://corporate.charter.com/esg-report.pdf (last visited Mar. 6,
`2024)
`Charter Officially Opens New State-of-the-Art Corporate
`Headquarters in Stamford, CHARTER COMMC’NS, available at
`https://corporate.charter.com/newsroom/charter-officially-opens-
`corporate-headquarters-in-stamford-ct (last visited Mar. 11,
`2024)
`Charter Job Search, SPECTRUM, available at
`https://jobs.spectrum.com/search-jobs/Texas%2CUS/4673-
`14710/3/6252001-4736286/31x25044/-99x25061/50/2 (last
`visited Mar. 6, 2024)
`Mutual Arbitration Agreement
`(CHARTER_ENTROPIC00047225–229)
`Entropic Communications, LLC v. DirecTV, LLC, No. 2:22-cv-
`75, Dkt. 109 (E.D. Tex. Oct. 24, 2022)
`Switching Has Never Been Easier, SPECTRUM, available at
`https://www.spectrum.com/choose-spectrum/contract-
`buyout?opredirect=contract-buyout (last visited Nov. 9, 2023) –
`C. Kovach Dep. Ex. 18
`Spectrum Privacy Policy, SPECTRUM, available at
`https://www.spectrum.com/policies/privacy-policy (last visited
`Nov. 9, 2023) – C. Kovach Dep. Ex. 19
`Terms of Services / Policies, SPECTRUM, available at
`https://www.spectrum.com/policies/terms-of-service (last visited
`Nov. 9, 2023) – C. Kovach Dep. Ex. 20
`
`iii
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`

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`Case 2:23-cv-00059-JRG Document 18 Filed 03/19/24 Page 4 of 39 PageID #: 233
`
`Exhibit No.
`
`AA
`
`BB
`
`CC
`
`DD
`
`EE
`
`FF
`
`GG
`
`HH
`
`Description
`
`Spectrum Residential General Terms and Conditions of Service,
`SPECTRUM, available at
`https://www.spectrum.com/policies/residential-general-terms-
`and-conditions-of-service (last visited Nov. 9, 2023) – C.
`Kovach Dep. Ex. 21
`Second Amended and Restated Management Agreement
`between Charter Communications Operating, LLC and Charter
`Communications, Inc. dated May 18, 2016
`(CHARTER_ENTROPIC00046516–522)
`Spectrum Residential General Terms and Conditions of Service
`Effective December 3rd, 2023, SPECTRUM, available at
`https://www.spectrum.com/policies/residential-generaI-terms-
`and-conditions-of-service-dec2023 (last visited Nov. 9, 2023) –
`C. Kovach Dep. Ex. 23
`Electronic Payment Terms, SPECTRUM, available at
`http://www.spectrum.com/policies/electronic-payments-terms-
`and-conditions (last visited Nov. 9, 2023) – C. Kovach Dep. Ex.
`24
`Spectrum Access Terms of Service, SPECTRUM, available at
`https://www.spectrum.com/policies/spectrum-access-
`application-terms (last visited Nov. 9, 2023) – C. Kovach Dep.
`Ex. 25
`CHARTER SOFTWARE LICENSE AGREEMENT SpectrumU
`TV App and Spectrum Enterprise TV App, SPECTRUM, available
`at https://www.spectrum.com/policies/spectrumu-tv-app-and-
`spectrum-enterprise-tv-app (last visited Nov. 9, 2023) – C.
`Kovach Dep. Ex. 26
`Touchstream’s Second Supplemental Responses and Objections
`to Charters’ First Set of Interrogatories dated March 1, 2024
`Evaluation / Trial Agreement dated October 28, 2016 between
`Turner and Touchstream (TS_CHARTER_00041021–1025)
`
`
`iv
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`

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`Case 2:23-cv-00059-JRG Document 18 Filed 03/19/24 Page 5 of 39 PageID #: 234
`
`TABLE OF CONTENTS
`
`I.
`
`II.
`
`INTRODUCTION ......................................................................................................... 1
`
`STATEMENT OF FACTS ............................................................................................ 2
`
`A.
`
`B.
`
`Facts Relating to Charter’s Motion for Improper Venue. .................................. 2
`
`The subsidiaries are controlled by CCI and CCO. ............................................. 3
`
`1.
`
`2.
`
`3.
`
`4.
`
`CCI is the manager and maintains control over its subsidiaries. ......... 3
`
`CCO maintains financial control for all Charter entities. .................... 6
`
`CCI, CCO, and SGC share the same officers. ..................................... 8
`
`CCI holds out to the public and the federal government that
`Charter is one enterprise and does not distinguish which entity
`provides the Accused Products and Services. ..................................... 8
`
`C.
`
`Facts Relating to Charter’s Motion to Dismiss for Failure to State a Claim
`of Willful Infringement. ................................................................................... 10
`
`III.
`
`LEGAL STANDARDS ............................................................................................... 11
`
`A.
`
`B.
`
`Legal Standard for Proper Venue .................................................................... 11
`
`Legal Standard for Properly Pleading Willfulness .......................................... 12
`
`IV. ARGUMENT ............................................................................................................... 12
`
`A.
`
`The Court Already Found that CCI Fails to Maintain Corporate
`Separateness from Spectrum Gulf Coast LLC in the Entropic case. ............... 13
`
`B.
`
`Venue is proper over CCI and CCO in the Eastern District of Texas. ............ 13
`
`1.
`
`2.
`
`CCI and CCO each have a regular and established place of
`business in the District. ...................................................................... 13
`
`CCI and CCO’s physical locations in this District are regular and
`established places of business. .......................................................... 15
`
`3.
`
`The physical locations are the places of CCI and CCO. ................... 20
`
`C.
`
`Touchstream Has Adequately Alleged Willfulness. ........................................ 25
`
`1.
`
`2.
`
`Under the Proper Standard for a Motion to Dismiss,
`Touchstream Has Alleged a Plausible Willfulness Case. .................. 25
`
`Alternatively, Touchstream Requests Leave to Amend its
`Complaint. ......................................................................................... 28
`
`V.
`
`CONCLUSION ............................................................................................................ 29
`
`
`
`
`
`
`
`v
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`Case 2:23-cv-00059-JRG Document 18 Filed 03/19/24 Page 6 of 39 PageID #: 235
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`Alarm.com Inc. v. Vivint, Inc.,
`No. 2:23-cv-00004-JRG-RSP, 2023 WL 6319348 (E.D. Tex. Sept. 6,
`2023) .................................................................................................................................. 26
`
`Andra Group, LP v. Victoria’s Secret Stores, LLC,
`6 F.4th 1283 (Fed. Cir. 2021) ...................................................................................... 12, 14
`
`Arigna Tech. Ltd. v. Bayerische Motoren Werke AG,
`No. 2:21-CV-00172, 2022 WL 610796 (E.D. Tex. 2022 Jan. 24, 2022) .................... 13, 29
`
`Arigna Tech. Ltd. v. Nissan Motor Co.,
`No. 2:22-cv-00126, 2022 WL 17978913 (E.D. Tex. Oct. 5, 2022) ................................... 26
`
`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) ........................................................................................................... 12
`
`Bell Atl. Corp. v. Twombly,
`550 U.S. 544 (2007) ........................................................................................................... 12
`
`Blitzsafe Texas, LLC v. Volkswagen Grp. of Am., Inc.,
`No. 2:15-cv-1274, 2016 WL 4778699, at *6 (E.D. Tex. Aug. 19, 2016),
`report and recommendation adopted, 2016 WL 4771291 (E.D. Tex. Sept.
`13, 2016) ...................................................................................................................... 26, 27
`
`In re Charter Commc’ns., Inc.,
`No. 2023-136, 2023 WL 5688812 (Fed. Cir. Sept. 5, 2023) ............................................. 13
`
`Content Guard Holdings, Inc. v. Amazon.com, Inc.,
`No. 2:13-CV-1112-JRG, 2015 WL 1432158 (E.D. Tex. Mar. 30, 2015) .......................... 25
`
`In re Cray,
`871 F.3d 1355 (Fed. Cir. 2017)...................................................... 11, 13, 14, 15, 16, 21, 25
`
`Enovsys LLC v. T-Mobile USA, Inc.,
`No. 2:21-CV-00368-JRG, 2022 WL 3686481 (E.D. Tex. Aug. 24, 2022).................. 26, 27
`
`Entropic Communications, LLC v. Charter Communications, Inc.,
`Case No. 2:22-cv-0125-JRG, Dkt. 91 (May 3, 2023) ..... 1, 3, 5, 6, 9, 13, 14, 15, 16, 18, 19,
`21, 22, 25, 30
`
`vi
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`Case 2:23-cv-00059-JRG Document 18 Filed 03/19/24 Page 7 of 39 PageID #: 236
`
`Entropic Communications, LLC v. DirecTV, LLC,
`No. 2:22-cv-75, Dkt. 109 (E.D. Tex. Oct. 24, 2022) ................................. 14, 20, 21, 22, 30
`
`Flypsi, Inc. v. Google LLC,
`No. 22-cv-0031, 2022 WL 3593053 (W.D. Tex. Aug. 22, 2022)...................................... 26
`
`In re Google,
`949 F.3d 1338 (Fed. Cir. 2020).......................................................................................... 16
`
`In re Google,
`949 F.3d at 1345–46 .......................................................................................................... 16
`
`Jawbone Innovations, LLC v. Google LLC,
`No., 2022 WL 7145461 (W.D. Tex. Oct. 12, 2022) .......................................................... 12
`
`L.A. Gear, Inc. v. Thom McAn Shoe Co.,
`988 F.2d 1117 (Fed. Cir. 1993).......................................................................................... 26
`
`McZeal v. Sprint Nextel Corp.,
`501 F.3d 1354 (Fed. Cir. 2007).......................................................................................... 12
`
`NXP USA Inc. v. Mediatek Inc.,
`No. 2:21-CV-00318, 2022 WL 799071 (E.D. Tex. Mar. 15, 2022) .................................. 12
`
`Realtime Data LLC v. EchoStar Corp.,
`No. 6:17-CV-84 RWS-JDL, 2017 WL 4693512, at *6 (E.D. Tex. July 19,
`2017), report and recommendation adopted, No. 6:17-CV-84, 2017 WL
`3599537 (E.D. Tex. Aug. 21, 2017) .................................................................................. 30
`
`Sightline Payments, LLC v. Everi Holdings Inc.,
`No. 6:21-cv-1015, 2022 WL 2078215 (W.D. Tex. June 1, 2022) (appeal
`filed June 28, 2022)............................................................................................................ 12
`
`SiOnyx, LLC v. Hamamatsu Photonics K.K.,
`330 F. Supp. 3d 574 (D. Mass. 2018) ................................................................................ 26
`
`Soverain IP, LLC v. AT&T, Inc.,
`No. 217CV00293RWSRSP, 2017 WL 5126158, at *1 (E.D. Tex. Oct. 31,
`2017), report and recommendation adopted, No. 2:17-CV-00293-RWS,
`2017 WL 6452802 (E.D. Tex. Dec. 18, 2017) ............................................................. 22, 25
`
`T-Rex Prop. AB v. Regal Ent. Group,
`No. 6:16-CV-1029-RWS-KNM, 2017 WL 4229372, at *10 (E.D. Tex.
`Aug. 31, 2017), report and recommendation adopted sub nom. T-Rex
`Prop. AB v. Regal Ent. Group., No. 6:16-CV-1029-RWS-KNM, 2017 WL
`4225441 (E.D. Tex. Sept. 22, 2017) .................................................................................. 29
`
`vii
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`Case 2:23-cv-00059-JRG Document 18 Filed 03/19/24 Page 8 of 39 PageID #: 237
`
`Tracbeam, LLC v. AT&T Inc.,
`No. 11-cv-96, 2012 WL 12841486 (E.D. Tex. Mar. 27, 2012) ......................................... 26
`
`In re Volkswagen Grp. of Am.,
`28 F.4th 1203 (Fed. Cir. 2022) .......................................................................................... 16
`
`WCM Indus., Inc. v. IPS Corp.,
`721 Fed. Appx. 959 (Fed. Cir. 2018) ................................................................................. 26
`
`WesternGeco L.L.C. v. ION Geophysical Corp.,
`837 F.3d 1358 (Fed. Cir 2016)........................................................................................... 28
`
`Statutes
`
`28 U.S.C. § 1400(b) ................................................................................................................. 13
`
`28 U.S.C. § 1400(b)(2) ............................................................................................................ 11
`
`35 U.S.C. § 103 ........................................................................................................................ 29
`
`Rules
`
`Rule 12(b)(6) ................................................................................................................ 12, 25, 31
`
`
`
`
`
`viii
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`Case 2:23-cv-00059-JRG Document 18 Filed 03/19/24 Page 9 of 39 PageID #: 238
`
`I.
`
`INTRODUCTION
`
`Considering an almost identical set of facts, this Court recently found venue to be
`
`proper for all of Charter’s corporate entities, stating, “Charter unabashedly holds itself out to
`
`the world as a single enterprise.” Ex. A, Memorandum Opinion and Order in Entropic
`
`Commc’ns, LLC v. Charter Commc’ns, Inc., Case No. 2:22-cv-0125-JRG (the “Entropic”
`
`case), produced as CHARTER_TOUCHSTREAM_00000649-668, Dkt. 91 at 19. After
`
`Charter filed a writ of mandamus challenging that decision—and given the nearly identical
`
`issues presented—the parties agreed to stay venue discovery in this case pending the Federal
`
`Circuit’s review. Dkt. 92. After the Federal Circuit denied Charter’s request for mandamus
`
`relief, Charter pivoted—asserting that Entropic was distinguishable.
`
`No so. This Court’s holding in Entropic applies directly to this case. As with Entropic,
`
`Charter’s intermingling of its entities—including management control by Defendant Charter
`
`Communications, Inc. (“CCI”) and financial control by Charter Communications Operating
`
`LLC (“CCO”)—show that the entities all operate as a single enterprise offering the accused
`
`Spectrum services to customers in this District. Charter cannot reap the benefits associated with
`
`its corporate structure without being held accountable for its acts in this District.
`
`Further, Touchstream has adequately pled willfulness. Because Touchstream’s
`
`Complaint adequately pled that Charter had knowledge of the Asserted Patents and willfully
`
`infringed those patents, Touchstream’s willfulness allegations should not be dismissed.
`
`Because venue is proper over CCI and CCO, and Touchstream has adequately pled
`
`willful infringement, Charter’s Motion to Dismiss should be denied in its entirety.
`
`
`
`
`
`
`

`

`Case 2:23-cv-00059-JRG Document 18 Filed 03/19/24 Page 10 of 39 PageID #: 239
`
`II.
`
`STATEMENT OF FACTS
`
`Plaintiff Touchstream Technologies, Inc. (“Touchstream” or “Plaintiff”) filed its
`
`original complaint on March 1, 2023, alleging infringement of several patents against
`
`Defendants Charter Communications, Inc., et al. (“Defendants” or “Charter”). Dkt. 1.
`
`Defendants Charter Communications, Inc. (“CCI”) and Charter Communications Operating
`
`LLC (“CCO”) filed its first Motion to Dismiss on May 8, 2023. Dkt. 36. Touchstream filed its
`
`First Amended Complaint (“Complaint”) on May 25, 2023. Dkt. 53. On June 23, 2023, CCI
`
`and CCO filed its Amended Motion to Dismiss (“Defendants’ Motion” or “Charter’s Motion”).
`
`Dkt. 82. Thereafter, the Parties undertook venue discovery pursuant to the Court’s October 18,
`
`2023 Order (“Order”).
`
`A.
`
`Facts relating to Charter’s motion for improper venue.
`
`The activities and employees of the subsidiaries are attributable to CCI and CCO
`
`because “Charter is Spectrum and Spectrum is Charter.” Ex. A at 5. There is no dispute that
`
`venue is proper in this District over certain Charter entities. Defendants Time Warner Cable
`
`Enterprises LLC (“TWCE”), Spectrum Management Holding Company, LLC (“SMHC”),
`
`Spectrum Gulf Coast, LLC (“SGC”), and Charter Communications, LLC (“CC LLC”) do not
`
`join the venue portion of Defendants’ Motion. See Dkt. 82 at 1 n.1. Charter leverages its
`
`labyrinthine corporate structure to argue that CCI and CCO do not conduct business in this
`
`District. But, CCI’s managerial control and CCO’s financial control over the greater Charter
`
`enterprise—including entities Charter admits directly conduct business in this District—show
`
`otherwise.1 It is the control exerted by CCI and CCO that allows Defendants to uniformly offer
`
`
`1 See Ex. B, Kovach Dep. Ex. 10.
`
`2
`
`
`
`
`
`

`

`Case 2:23-cv-00059-JRG Document 18 Filed 03/19/24 Page 11 of 39 PageID #: 240
`
`the Accused Products and services in this District under the Spectrum brand. To remove either
`
`CCI or CCO from Charter’s corporate structure would collapse Charter entirely; no individual
`
`subsidiary is a complete, functioning business, and each operates under the control of CCI.
`
`B.
`
`The subsidiaries are controlled by CCI and CCO.
`
`1. CCI is the manager and maintains control over its subsidiaries.
`
`CCI manages its subsidiaries pursuant to a management agreement. See Ex. C, Proost
`
`Dep. Tr. at 85:10–18; Ex. B, Kovach Dep. Ex. 10; see also Dkt. 82 at 9 (asserting the same).
`
`This managerial role is integral to Charter’s business because it allows CCI to control its
`
`subsidiaries and ensure that all Charter entities are “able to provide services in a uniform way.”
`
`Ex. D, Kovach Dep. Tr. at 112:16–22. Charter understates CCI’s managerial authority,
`
`contending
`
`that CCI merely provides “advice,” or “consultation” or “review” or
`
`“recommendations” or “assistance” or “guidance” to its subsidiaries. Dkt. 82 at 11. Yet, CCI’s
`
`corporate representative was unable to explain how a subsidiary could depart from such
`
`“advice,” “recommendations,” and “guidance.” Ex. D, Kovach Dep. Tr. at 66:24–67:10.
`
`Moreover, CCI defines and disseminates corporate policies governing the conduct of its
`
`subsidiaries. Ex. D, Kovach Dep. Tr. at 66:24–67:6.
`
`Far from functioning as a distant manager, CCI wields direct, unfettered control over
`
`each subsidiary. The LLC agreements specify that
`
`
`
`
`
` See, e.g., Ex. E,
`
`Amended and Restated Limited Liability Company Agreement between Time Warner Cable
`
`Texas LLC
`
`and Charter Communications,
`
`Inc.
`
`dated May
`
`18,
`
`2016
`
`(CHARTER_TOUCHSTREAM_00000375–390), at ¶ 4(a)(i). Indeed, Charter’s corporate
`
`3
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`Case 2:23-cv-00059-JRG Document 18 Filed 03/19/24 Page 12 of 39 PageID #: 241
`
`representative in the Entropic case noted that CCI has “very broad powers” and that there
`
`“aren’t much” in the way of limitations. Ex. C, Proost Dep. Tr. at 59:8–60:1.
`
`Nor are such management agreements negotiated between entities at all. See Ex. C,
`
`Proost Dep. Tr. at 45:22–46:18. Charter’s own general counsel admitted that the management
`
`agreement is “but a legal formality,” an admission directly contradicting Charter’s suggestions
`
`that CCI’s role is merely advisory. See Ex. C, Proost Dep. Tr. at 46:3–7.
`
`i.
`
`CCI and CCO execute contracts on behalf of Spectrum
`stores in this District.
`
`CCI’s control of its subsidiaries is so direct that CCI routinely executes contracts on
`
`their behalf. Most notably, the leases for Spectrum stores in the District, nominally held by
`
`Spectrum Gulf Coast, LLC, were executed by CCI. As an example, below is the signature line
`
`on the lease for the Spectrum store located at 2100 North Dallas Parkway in Plano, Texas:
`
`Ex. F, at 21. Moreover, although SGC is listed as the tenant, its address refers to other Charter
`
`entities and is provided as: “c/o Charter Communications, 6360 F. Fiddlers Green Circle, Suite
`
`4
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`Case 2:23-cv-00059-JRG Document 18 Filed 03/19/24 Page 13 of 39 PageID #: 242
`
`100, Greenwood Village, Colorado 80111-4951, Attn: Charter Real Estate, File ID No.
`
`TX0227, and with a copy by email to: leaseadmin@charter.com . . . .” Ex. F, at 1.
`
`
`
`The same is also true of agreements relating to the Accused Instrumentalities, e.g., set-
`
`top box equipment used to deliver the Accused Services. For example, CCO entered into a
`
`Master Purchase Agreement
`
` See Ex. G, Master Purchase Agreement with
`
`, at 2.
`
`The purchase agreement is signed by CCI, as CCO’s manager:
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`See id. at 1. These agreements are only two of many that show CCI’s control over Charter
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`subsidiaries, and further demonstrate CCI’s control over the very equipment used to deliver
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`the Accused Products and Services in this case.
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`ii. The subsidiaries have no employees of their own.
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`While CCI and CCO do not have their own employees, they appear to use whatever CC
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`LLC employees as a situation may require. In the Entropic case, Charter’s witness, Mr. Daniel
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`Boglioli, who is vice president and associate general counsel in Charter’s intellectual property
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`group,2 testified that CC LLC employees “perform functions . . . for whatever specific entity
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`would be appropriate.” Ex. H, Boglioli Dep. Tr. at 74:1–11. And, in this case, Charter’s
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`30(b)(6) witness, Ms. Connie Kovach, who serves as Charter’s vice president and associate
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`2 Mr. Boglioli also evidenced some confusion as to whether he holds a titled position at more
`than one Charter entity. See, e.g., Ex. H, Boglioli Dep. Tr. at 28:4–19.
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`Case 2:23-cv-00059-JRG Document 18 Filed 03/19/24 Page 14 of 39 PageID #: 243
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`general counsel in the corporate group, testified that employees may also sign binding
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`agreements on behalf of CCI. Ex. D, Kovach Dep. Tr. at 55:21–56:12.
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`Indeed, Charter’s own witnesses (i.e., its own corporate in-counsel) were unable to
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`unravel Charter’s corporate structure. For example, in Defendants’ Motion, CCI and CCO
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`argue that
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` like SGC. Dkt. 82 at 5. Ms.
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`Kovach also stated as much in her deposition. Ex. D, Kovach Dep. Tr. at 134:1–5. However,
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`in the Entropic case, Mr. Boglioli testified that CCI is the entity that
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`
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` See Ex. H, Boglioli Dep. Tr. at 28:4–19, 85:10–18. In any event,
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`the inconsistent testimony provided by Charter’s 30(b)(6) designees is telling. Even Charter’s
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`own in-house attorneys struggle to differentiate between Charter’s various entities, likely
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`because each entity acts as a cog in Charter’s overarching enterprise.
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`2. CCO maintains financial control for all Charter entities.
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`Venue discovery has revealed that CCO holds and controls funds for all Charter entities.
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`The funds,
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`
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`separate corporate records from the LLC subsidiaries, all funds are allocated by CCO to the
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` While Charter contends that CCI and CCO maintain
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`LLC subsidiaries as needed.
`
`i.
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`Funds from all Charter entities are intermingled within
`bank accounts held by CCO.
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`SGC does not have its own bank account. See Ex. D, Kovach Dep. Tr. at 89:3–7. In
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`fact, none of the Charter subsidiaries—other than CCO—has its own bank account. Ex. D,
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`Kovach Dep. Tr. at 68:25–69:9. When an SGC customer makes a payment,
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`Case 2:23-cv-00059-JRG Document 18 Filed 03/19/24 Page 15 of 39 PageID #: 244
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` Ex. D, Kovach Dep. Tr. at 89:8–20; 119:10–120:5.
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`When an SGC customer is purchasing services from multiple Charter entities, e.g., bundling
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`mobile and video services from SGC and Spectrum Mobile LLC, “the money is deemed owned
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`by the entity that’s providing the service” (Ex. D, Kovach Dep. Tr. at 120:13–20), even if the
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`customer is not making multiple payments. Ex. D, Kovach Dep. Tr. at 122:6–12. While Charter
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`maintains that there are profit and loss statements, there are not financial statements at every
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`entity level and there is no way to mark funds separately within CCO’s bank statements. Ex.
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`D, Kovach Dep. Tr. at 122:6–123:17. As a result, the funds from all subsidiaries are
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`intermingled within bank accounts held by CCO.
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`ii. Expenses are allocated from CCO’s bank account,
`regardless of the purchasing entity.
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`As none of Charter’s other entities has its own bank account, all subsidiaries under
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`CCO draw money from CCO accounts. Ex. D, Kovach Dep. Tr. at 62:4–6. For example, if
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`SGC is seeking to lease or purchase property, CCO would allocate the requisite funds to SGC.
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`Ex. D, Kovach Dep. Tr. at 61:13–62:3. Further, although CCO does not have any employees,
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`it is the entity that holds the funds for employee salaries. See Ex. D, Kovach Dep. Tr. at 80:21–
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`81:12. It is undisputed by Charter’s witnesses that CCO holds the funds, but the witnesses
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`disagree as to which entity signs employee paychecks. According to Ms. Kovach, CC LLC is
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`the entity that signs employee paychecks. See id. Mr. Proost, on the other hand, testified that
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`another entity sends the paychecks and that another entity, Charter Communications Holding
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`Company, issues employees’ W-2 tax forms. See Ex. C, Proost Dep. Tr. at 28:13–22, 83:17–
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`84:23.
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`Case 2:23-cv-00059-JRG Document 18 Filed 03/19/24 Page 16 of 39 PageID #: 245
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`3. CCI, CCO, and SGC share the same officers.
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`CCI has twenty-four officers. See Ex. I, Kovach Dep. Ex. 11. These same twenty-four
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`officer are listed as executive officers of CCO. See Ex. J, Kovach Dep. Ex. 12. These same
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`twenty-four officers are also listed as executive officers of SGC. See Ex. K Kovach Dep. Ex.
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`13. In fact, Charter simply copies the same officer list for every new entity that gets created.
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`See Ex. C, Proost Dep. Tr. at 42:4–12; see also 69:15–17 (Q: “Do any of them have officers
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`who are not officers of CCI?” A: “No.”).
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`4. CCI holds out to the public and the federal government that
`Charter is one enterprise and does not distinguish which entity
`provides the Accused Products and Services.
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`“Spectrum” is not a brand that can only be wielded by a Spectrum subsidiary such as
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`SGC. Rather, “Spectrum” is a registered trademark held by Charter Communications Holding
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`Company, LLC (“HoldCo”) (not to be confused with Charter Communications Holding, LLC).
`
`See Ex. D, Kovach Dep. Tr. at 73:25–74:21. According to Charter’s witness, any Charter entity
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`is able to use the Spectrum brand pursuant to “
`
`
`
`
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`” Ex. D, Kovach Dep. Tr. at 75:5–23. Both CCI and CCO use the
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`Spectrum brand ad hoc, such as through online app store pages offering the Accused Products
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`for sale. See, e.g., Exs. L-M, Kovach Dep. Exs. 15-16. Further, Charter’s own website uses
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`both “Charter” and “Spectrum” throughout its webpages.
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`Case 2:23-cv-00059-JRG Document 18 Filed 03/19/24 Page 17 of 39 PageID #: 246
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`Ex.
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`N,
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`History
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`2010s,
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`CHARTER
`
`COMMUNICATIONS,
`
`available
`
`at
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`https://corporate.charter.com/history (last visited Mar. 6, 2024). As shown, Charter’s own
`
`website indicates that “Spectrum” is merely a brand name while Charter is the business offering
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`services to customers. Thus, that subsidiaries may use “Spectrum” branding is irrelevant.
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`“Charter cannot escape venue by operating under a trade name when it is clear that Charter is
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`the entity engaged in the challenged conduct which forms the basis of Plaintiff’s suit.” Ex. A,
`
`at 6.
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`CCI also routinely uses the Spectrum brand in federal filings, as noted by the Court in
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`the Entropic case. See Ex. A, at 18 (finding “Entropic[’s] argu[ments] that Charter holds itself
`
`out to the public and the federal government as being one enterprise” persuasive). In its most
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`recent Form 10-K, Charter touted their offerings through the Spectrum brand:
`
`
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`Ex. O, Charter Communications, Inc. Form 10-K for the Year Ended December 31, 2022, U.S.
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`SECURITIES AND EXCHANGE COMMISSION, available at https://ir.charter.com/static-
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`files/60656fe0-803a-4aa0-8da8-30865d4899f1 (hereinafter referred to as “Charter 10-K”). The
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`Charter 10-K also did not distinguish between CCI and CCO; rather, the 10-K Furthermore,
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`“Charter has previously represented to the FCC, the ITC, and other Article III courts that it is
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`one enterprise.” Ex. A, at 18.
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`
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`As such, CCI and CCO should not be permitted to use its seemingly mercurial corporate
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`structure to evade accountability for their control over the Charter/Spectrum enterprise.
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`Case 2:23-cv-00059-JRG Document 18 Filed 03/19/24 Page 18 of 39 PageID #: 247
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`C.
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`Facts relating to Charter’s motion to dismiss for failure to state a claim of
`willful infringement.
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`In 2011, David Strober, inventor of the Asserted Patents, officially incorporated
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`Touchstream Technologies, Inc. Dkt. 53 at ¶ 26. Since then, “Touchstream [d/b/a Shodogg]
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`has been a leader in developing casting technology,” and received numerous awards and raised
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`millions of dollars in investments. ¶¶ 27–28. Touchstream’s technology, though new at the
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`time, was well-known by those in the industry. It demonstrated its technology to gain investors
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`and form potential partnerships. Further, it was Touchstream’s business practice and pattern to
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`inform potential partners of its patents and/or pending patent applications when meeting. ¶ 34.
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`Spectrum was one such potential partner. ¶ 32. Around June 2011, Touchstream
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`demonstrated its technology to Spectrum. ¶ 33. At the demonstration, Touchstream informed
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`Spectrum that it had filed patent applications covering the technology and even provided the
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`patent application number to Spectrum in October 2011. ¶ 33. Touchstream repeated its patent-
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`status and application number via email. ¶ 33. The Asserted Patents claim priority to the same
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`patent application number that Touchstream provided to Spectrum. ¶ 33. Charter was therefore
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`on notice of the Asserted Patents at least by 2011 and their relationship to technology Charter
`
`was itself pursuing. ¶ 33. Although Charter was aware of the Asserted Patents at least by 2011,
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`it also knew or should have known of the Asserted Patents when each patent issued. ¶ 35. The
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`first of the Asserted Patents, U.S. Patent No. 8,356,251 (the “’251 Patent”) issued in January
`
`2013. ¶ 35. As such, Defen