Case 2:23-cv-00059-JRG Document 25 Filed 03/25/24 Page 1 of 15 PageID #: 673
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`TOUCHSTREAM TECHNOLOGIES, INC.,
`
`Plaintiff,
`
`v.
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`CHARTER COMMUNICATIONS, INC., et al,
`
`
`
`
`Defendants.
`
`This Document Relates To
`Case No. 2:23-cv-00059-JRG
`(Lead Case)
`
`JURY TRIAL DEMANDED
`
`
`
`
`
`
`
`
`
`
`
`
`DEFENDANTS’ REPLY IN FURTHER SUPPORT OF THEIR MOTION TO DISMISS
`THE FIRST AMENDED COMPLAINT FOR
`IMPROPER VENUE PURSUANT TO FRCP 12(b)(3) AND FOR FAILURE
`TO STATE A CLAIM FOR WILLFUL INFRINGEMENT UNDER FRCP 12(b)(6)
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`
`
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`

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`Case 2:23-cv-00059-JRG Document 25 Filed 03/25/24 Page 2 of 15 PageID #: 674
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`
`
`TABLE OF CONTENTS
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`
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`Page
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`I.
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`II.
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`INTRODUCTION..............................................................................................................1
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`ARGUMENT ......................................................................................................................1
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`A.
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`Touchstream Cannot Meet the “Difficult” Standard To Establish a Lack
`of Corporate Separateness Between CCI, CCO, and the Subsidiaries .............1
`
`1.
`
`2.
`
`3.
`
`Neither CCI Nor CCO Exercised Improper Control Over the
`Subsidiaries .................................................................................................2
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`CCI, CCO, and the Subsidiaries Followed Corporate Formalities ...........5
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`The Subsidiaries Do Not Carry Out Business Activities In CCI’s or
`CCO’s Name ................................................................................................5
`
`B.
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`Venue is Improper as to CCI and CCO Because They Do Not Have
`Regular and Established Places of Business In This District .............................6
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`1.
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`2.
`
`3.
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`Spectrum, Not CCI or CCO, Is Associated With the Website and
`Buildings That Offer Spectrum Services in This District ..........................7
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`CCI and CCO Have No Agents Conducting Business in the District .......7
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`CCI Has Not Ratified Any Place of Business In This District ..................8
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`C.
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`Touchstream Fails to Allege Defendants’ Knowledge of the Asserted
`Patents .....................................................................................................................9
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`D.
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`The Court Should Deny Touchstream’s Request to Replead ..........................10
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`III. CONCLUSION ................................................................................................................11
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`-i-
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`Case 2:23-cv-00059-JRG Document 25 Filed 03/25/24 Page 3 of 15 PageID #: 675
`
`TABLE OF AUTHORITIES
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`Page(s)
`
`Cases
`
`Andra Grp., LP v. Victoria’s Secret Stores, LLC,
`6 F.4th 1283 (Fed. Cir. 2021) ............................................................................................6, 8, 9
`
`Bd. Of Regents v. Medtronic PLC.,
`No. 17-CV-942, 2018 WL 4179080 (W.D. Tex. July 19, 2018) ...................................2, 5, 6, 7
`
`Charles v. Charles,
`No. 21-CV-2061, 2022 WL 4747499 (S.D. Tex. Sept. 30, 2022) .............................................8
`
`DW Volbleu, LLC v. Honda Aircraft Co., LLC,
`No. 21-CV-637, 2024 WL 169569 (E.D. Tex. Jan. 16, 2024) .................................................10
`
`E. Texas Med. Ctr. Reg’l Healthcare Sys. v. Slack,
`916 F. Supp. 2d 719 (E.D. Tex. 2013) (Gilstrap, J.) ..................................................................8
`
`Fractus, S.A. v. TCL Corp.,
`No. 20-CV-97, 2021 WL 2483155 (E.D. Tex. June 2, 2021) ..............................................1, 10
`
`Interactive Toybox, LLC v. Walt Disney Co.,
`No. 17-CV-1137, 2018 WL 5284625 (W.D. Tex. Oct. 24, 2018) .....................................2, 5, 6
`
`IPVX Patent Holdings, Inc. v. Broadvox Hold. Co., LLC,
`No. 11-CV-575, 2012 WL 13012617 (E.D. Tex. Sept. 26, 2012) .............................................3
`
`L.B. Benon Family Ltd. P’ship v. Wells Fargo Bank, N.A.,
`SA-21-CA-01115, 2022 WL 16825204 (W.D. Tex. Nov. 7, 2022) ..........................................8
`
`Soverain IP, LLC v. AT&T, Inc.,
`No. 17-CV-293, 2017 WL 5126158 (E.D. Tex. Oct. 31, 2017) ............................................2, 5
`
`U.S. v. Bestfoods,
`524 U.S. 51 (1998) .................................................................................................................5, 9
`
`U.S. ex rel. Reddell v. DynCorp Int’l, LLC,
`No. 14-CV-86, 2019 WL 12875442 (E.D. Tex. Mar. 1, 2019) .................................................5
`
`Rules
`
`Rule 15(a).......................................................................................................................................10
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`-ii-
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`Case 2:23-cv-00059-JRG Document 25 Filed 03/25/24 Page 4 of 15 PageID #: 676
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`
`
`I.
`
`INTRODUCTION
`Touchstream relies on the Court’s Entropic decision and seeks to disregard CCI’s and
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`CCO’s corporate forms based on comingled theories of “imputation,” “ratification,” and “agency,”
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`and by arguing that CCI has “management control” and CCO has “financial control” over the
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`subsidiaries. Dkt. 1551 at 1, 13-24. Nonetheless, Touchstream recognizes the that CCI, CCO, and
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`their subsidiaries, each have a distinct role and function in the corporate family. E.g., id. at 22-23
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`(stating that “[e]ach entity plays a dependent role” and explaining those different roles). And even
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`though Touchstream conducted additional venue discovery, the fact remains that CCI and CCO
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`maintain all corporate forms, offer no products or services, have no employees, and do not own or
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`lease any location in this district, including the locations or addresses identified in the Amended
`
`Complaint. There is no evidence that would permit the Court to find a lack of corporate
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`separateness, that CCI or CCO ratified any property in this district, or an agency relationship
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`between CCI, CCO, or any subsidiary (or employees of subsidiary Charter Communications, LLC
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`(“CC LLC”)). The Court should grant CCI and CCO’s motion to dismiss for improper venue.
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`The Court should also dismiss Touchstream’s claim for willful infringement for the very
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`same reasons that it dismissed Touchstream’s willful infringement claim against the Comcast
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`defendants (Dkt. 156): Touchstream fails to allege that Defendants had pre-suit “[k]knowledge of
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`the asserted patents,” which is “a prerequisite[.]” Fractus, S.A. v. TCL Corp., No. 20-CV-97, 2021
`
`WL 2483155, at *4 (E.D. Tex. June 2, 2021) (Gilstrap, J.). Moreover, the Court should deny the
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`belated request for leave to further amend the complaint. Touchstream has known the facts it seeks
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`to assert in an amended pleading for months, if not years, and should not be rewarded for its delay.
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`II.
`
`ARGUMENT
`A.
`Touchstream Cannot Meet the “Difficult” Standard To Establish a Lack of
`
`
`1 Citations are to the previously consolidated docket at 23-cv-0060 (E.D. Tex.).
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`-1-
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`Case 2:23-cv-00059-JRG Document 25 Filed 03/25/24 Page 5 of 15 PageID #: 677
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`Corporate Separateness Between CCI, CCO, and the Subsidiaries
`Although Touchstream fails to explicitly argue a lack of corporate separateness, it relies on
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`a purported lack of corporate separateness in support of each Cray factor.2 Dkt. 155 at 13.
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`However, “[e]xcept where corporate formalities are ignored and an alter ego relationship exists,
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`the presence of a corporate relative in the district does not establish venue over another separate
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`and distinct corporate relative.” Bd. Of Regents v. Medtronic PLC., No. 17-CV-942, 2018 WL
`
`4179080, at *2 (W.D. Tex. July 19, 2018). “There must be a plus factor, something beyond the
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`subsidiary’s mere presence within the bosom of the corporate family.” Interactive Toybox, LLC
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`v. Walt Disney Co., No. 17-CV-1137, 2018 WL 5284625, at *3 (W.D. Tex. Oct. 24, 2018). This
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`is a “difficult standard,” and “[s]ettled law always presumes that corporations exist as separate
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`entities.” Soverain IP, LLC v. AT&T, Inc., No. 17-CV-293, 2017 WL 5126158, at *1 (E.D. Tex.
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`Oct. 31, 2017); Interactive Toybox, 2018 WL 5284625, at *3. When determining whether
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`corporate formalities have been ignored and an alter ego relationship exists, courts undertake a
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`rigorous analysis. Dkt. 82 at 20-21. Touchstream cannot satisfy this standard.
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`1. Neither CCI Nor CCO Exercised Improper Control Over the
`Subsidiaries
`Touchstream asserts that CCI has “management control” and that CCO has “financial
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`control” over their subsidiaries, arguing that “the entities all operate as a single enterprise,” such
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`that SGC-owned or -leased locations in the district “can be imputed to both CCI and CCO” because
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`they lack of corporate separateness. Dkt. 155 at 1, 14-15, 20-24. Designating CCI as a manager
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`does not convert CCI into an alter ego of the managed LLC. E.g., Dkt. 82 at 9-11, 20-23. That is
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`precisely how manager managed LLCs are designed to operate. Id. at 9-11, 21-23; Ex. 14, Kovach
`
`
`2
`Touchstream relies on the Court’s ruling in Entropic without asserting any arguments,
`facts, or supporting information for the Court to consider. CCI and CCO incorporate all arguments
`and facts as asserted in Entropic before the District Court and the Federal Circuit. Exs. 15-18.
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`-2-
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`Case 2:23-cv-00059-JRG Document 25 Filed 03/25/24 Page 6 of 15 PageID #: 678
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`Dep., 107:12-108:5. Touchstream has not cited any evidence that CCI was improperly appointed
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`as manager of SGC (or any other subsidiary) or that CCI or any of its officers has acted beyond its
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`authority as a “manager.” See Dkt. 82 at 9, 21-23; IPVX Patent Holdings, Inc. v. Broadvox Hold.
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`Co., LLC, No. 11-CV-575, 2012 WL 13012617, at *3 (E.D. Tex. Sept. 26, 2012) (rejecting venue
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`argument because there was “no evidence that the control exerted by [the parent-defendant] is
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`greater than that ‘normally associated with common ownership and directorship.’”). To the
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`contrary, CCI’s corporate representative testified that CCI “is the appointed manager of [SGC] but
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`not of its operations. It provides advice, recommendations, standards, but [SGC] makes the
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`decisions for what [SGC] is authorized to do[.]” Ex. 14, Kovach Dep., 65:7-12; id. 66:1-6
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`(“[SGC] is in charge of [its] assets and liabilities”); id. at 109:8-14 (same).
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`Touchstream argues that CCO is the alter ego of its subsidiaries based on purported
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`“financial control.” E.g., Dkt. 155 at 1, 6-7, 14-15. There is no evidence however that CCO
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`controls the subsidiaries’ finances, decides how subsidiaries’ finances are spent, or decides how
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`the subsidiaries should operate. Cf. Dkt. 155 at 6-7, 22-23. Rather, CCO is as a holding company
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`that
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`, and the subsidiaries, not CCO, draw funds from
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`the accounts. Ex. 14, Kovach Dep., 61:21-62:6. Nor does CCO decide to allocate funds to the
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`subsidiaries. Dkt. 155 at 6, 23. Rather, “the entity that is [making a purchasing decision] would”
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`decide to draw funds. Ex. 14, Kovach Dep., 63:14-18.3 Moreover, CCO misleadingly contends
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`that subsidiary funds “are intermingled.” Dkt. 155 at 7. Again, that is not true; through “entity
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`accounting[,] costs and expenses are allocated amongst the various entities” with “ledger entries”
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`that track each entity’s fees, costs, and expenses. Dkt. 82-3, Ex. 2, Proost Dep., 72:7-21, 87:14-
`
`
`3
`Witnesses did not inconsistently testify as to which entity signs employee paychecks. Cf.
`Dkt. 155 at 7; Ex. 14, Kovach Dep., 80:21-81:5 (the “employer entity” signs paychecks); Dkt. 82-
`3, Ex. 2, Proost Dep., 83:17-84:3 (testifying he was “not 100 percent certain” as to the entity).
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`-3-
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`Case 2:23-cv-00059-JRG Document 25 Filed 03/25/24 Page 7 of 15 PageID #: 679
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`19 (explaining entity accounting); e.g., Ex. 14, Kovach Dep., 123:12-17. There simply is no
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`evidence that CCO exerts “financial control” over the subsidiaries.
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`Touchstream also asserts that CCI can “direct or control the employees’ actions.” Dkt. 155
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`at 15.
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`
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`. Cf. 155 at 6; see Dkt.
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`82 at 5-8; Dkt. 82-3, Ex. 2, Proost Dep., 72:7-21; Dkt. 82-5, Ex. 4, Boglioli Dep., 36:12-16, 51:20-
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`25
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`), 72:3-73:22, 75:12-76:14. Touchstream also
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`argues that CCI’s officers “have the authority to hire, fire, and direct the work of employees,” but
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`the very testimony it quotes explains that the officers are employees of CC LLC and that there is
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`uncertainty as to what “authority they have as officers of [CCI].” Compare Dkt. 155 at 17, with
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`Ex. 19, Boglioli Dep., 100:18-101:18. The same witness also explained that CCI’s officers or
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`directors do not participate in the hiring and firing of any employees, including any employees in
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`this district. See Dkt. 82 at 5-6, 17-18; Dkt. 82-5, Ex. 4, Boglioli Dep., 47:8-48:24. Touchstream
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`does not suggest any of this violates governing Delaware corporate law or applicable agreements.
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`Finally, there is nothing improper about CCI, as manager, signing agreements on behalf of
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`SGC (or other managed LLCs) because the SGC LLC Agreement permits CCI, as manager, to
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`. See Dkt. 155 at 22; Dkt. 82-9, Ex. 8, SGC LLC Agmt.,
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`§ 4(a)(iii). Touchstream does not argue that CCI ever acted beyond the scope of this provision.
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`Moreover, CCO did not sign any lease for the subsidiaries in the district and does not “control” or
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`have “broad authority to bind all of its subsidiaries” under the management services agreement
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`between CCI and CCO. Cf. Dkt. 155 at 16. The management services agreement was executed
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`solely to
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`
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`,” and not for any other purpose. Ex. 14, Kovach Dep., 109:15-23.
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`-4-
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`Case 2:23-cv-00059-JRG Document 25 Filed 03/25/24 Page 8 of 15 PageID #: 680
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`2. CCI, CCO, and the Subsidiaries Followed Corporate Formalities
`Touchstream argues that CCI, CCO, and the subsidiaries lack corporate separateness
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`because the separate entities are “dependent” and because “[n]o single entity operates as an
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`independent business.” Dkt. 155 at 22, 24, 30. There is no requirement that subsidiaries must
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`operate “independent businesses” to maintain corporate formalities. “[E]ven if a parent
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`corporation controls a subsidiary’s operations,” or if “venue-related discovery revealed an
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`interdependence” between CCI, CCO, and the subsidiaries, a “subsidiary’s presence in a venue
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`cannot be imputed to the parent absent disregard for corporate separateness,” which Touchstream
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`fails to prove here. Soverain, 2017 WL 5126158, at *1 (emphasis added; citations omitted).
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`Touchstream also relies on the fact that there is an overlap in officers or directors among
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`CCI, CCO, and their subsidiaries. Dkt. 155 at 24. But “[e]ven 100% stock ownership and
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`commonality of officers and directors” do not “establish an alter ego relationship between two
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`corporations.” Interactive Toybox, 2018 WL 5284625, at *3. Further, “ directors and officers
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`holding positions with a parent and its subsidiary can and do ‘change hats’ to represent the two
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`corporations separately, despite their common ownership.” U.S. v. Bestfoods, 524 U.S. 51, 69
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`(1998); U.S. ex rel. Reddell v. DynCorp Int’l, LLC, No. 14-CV-86, 2019 WL 12875442, at *7
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`(E.D. Tex. Mar. 1, 2019); Ex. 20, Proost Dep., 48:14-49:4 (signing for “three different entities” in
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`“three different roles”).
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`3. The Subsidiaries Do Not Carry Out Business Activities In CCI’s or
`CCO’s Name
`Touchstream contends that CCI and CCO hold themselves out as Spectrum, but it has no
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`answer to the fact that its subsidiaries’ “use of the common or generic name [Spectrum] on the
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`exterior of [the subsidiary’s buildings], as well as the press release announcing the business,”
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`cannot support venue where, as here, the corporate formalities between related companies remain
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`intact. Medtronic, 2018 WL 4179080, at *2. Touchstream also relies on statements by CCI
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`-5-
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`

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`Case 2:23-cv-00059-JRG Document 25 Filed 03/25/24 Page 9 of 15 PageID #: 681
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`explaining the unremarkable fact that, through its subsidiaries, it offers services to the public under
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`the Spectrum brand. See Dkt. 155 at 9-10, 14-18; Dkt. 155-15, Touchstream Ex. O at i & 1 (stating
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`“‘Charter,’ ‘we,’ ‘us’ and ‘our’ refer to [CCI] and its subsidiaries.”). Courts and people alike
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`understand that many services are provided through a corporation’s subsidiaries.4 Andra Grp., LP
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`v. Victoria’s Secret Stores, LLC, 6 F.4th 1283, 1288 (Fed. Cir. 2021) (“use of ‘we’ does not convey
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`that ‘we’ means” the parent, but” could “include the individual subsidary brands”).
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`Touchstream also relies on a “nationwide website” as evidence that CCI and CCO “hold
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`[themselves] out to the world as a single enterprise.” Dkt. 155 at 14-15, 18-21. All this shows,
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`however, is the fact that services are provided under the Spectrum brand, not CCI, CCO, or even
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`“Charter,” confirming the fact that the subsidiaries do not hold themselves out as CCI or CCO. If
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`generic statements concerning the services provided by the subsidiaries were sufficient to pierce
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`the corporate veil, no major corporation in the United States would be able to function without a
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`wholesale reorganization. Interactive Toybox, 2018 WL 5284625, at *4 (rejecting alter ego theory
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`where there was no evidence the parent ignored “the corporate formalities” or exerted “such a level
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`of control” based on public documents wherein the parent stated, among other things, it is “home”
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`to “a leading retail business,” i.e., the branded-store subsidiary).
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`B.
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`Venue is Improper as to CCI and CCO Because They Do Not Have Regular
`and Established Places of Business In This District
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`
`
`
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`4
`Touchstream relies on the Entropic ruling to contend, without support, that CCI
`“represented to the FCC, the ITC, and other Article III courts that it is one enterprise.” Dkt. 155
`at 9. Not so. Ex. 16, CCI Entropic Reply Br., at 6-7 & nn. 2-3. Moreover, it is no moment that
`CCI or CCO are listed on application platforms as a “publisher,” for example. Cf. Dkt. 155 at 22.
`The record is clear that CCI and CCO are holding, not operating, companies, and offer no services.
`All corporate representatives consistently testified that services are offered under the Spectrum
`brand through the distinct subsidiaries that offer those services. Being listed as a “publisher” or
`“seller”—terms provided by third-party platforms—are not the same as offering services. And,
`Touchstream’s Exhibit M concerns a service that is “not at issue” and is “no basis to impute” to
`CCI or CCO. Medtronic, 2018 WL 4179080, at *2; Ex. 14, Kovach Dep., 76:8-18.
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`-6-
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`Case 2:23-cv-00059-JRG Document 25 Filed 03/25/24 Page 10 of 15 PageID #: 682
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`1.
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`Spectrum, Not CCI or CCO, Is Associated With the Website and
`Buildings That Offer Spectrum Services in This District
`Touchstream contends that CCI and CCO carry out business in this district because “SGC’s
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`business locations can be imputed to both CCI and CCO” on the basis that CCI and CCO hold
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`themselves out as Spectrum. Dkt. 155 at 14-15. For the reasons stated above, those arguments
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`should fail. See §II.A supra; Medtronic, 2018 WL 4179080, at *2.
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`2. CCI and CCO Have No Agents Conducting Business in the District
`Touchstream argues that CCI and CCO have a regular and established place of business in
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`the district based on agency relationships, Dkt. 155 at 15-20, but it cannot meet this burden. Neria
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`v. Dish Network L.L.C., No. 19-CV-430, 2020 WL 3403074, at *5 (W.D. Tex. June 19, 2020).
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`Touchstream suggests CCO “has the right to control the actions” of CC LLC employees
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`because it signed the management services agreement between CCI and CCO, implying that CCO
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`has “broad authority to bind all of its subsidiaries[.]” Dkt. 155 at 16. The management services
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`agreement does not give CCO any “right to control” CC LLC employees. The management
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`services agreement merely
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`
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` and nothing more. Ex. 14, Kovach Dep., 109:15-23.
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`Nor does CCO use CC LLC employees “as agents to solicit contracts with third-party vendors.”
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`Dkt. 155 at 16. To the contrary, the CC LLC employees decide which contracts to execute or
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`vendors to engage on behalf of the various entities, and CCO is a signing entity
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`
`
` Ex. 19, Boglioli Dep., 77:4-79:6,
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`Ex. 14, Kovach Dep., 32:11-22, 131:5-22; accord Dkt. 155-15, Touchstream Ex. O.
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`Touchstream also argues that CCI has the right to “control nearly every aspect” of the
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`subsidiaries, “including employee conduct,” as the manager of the manager of CC LLC and SGC.
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`Dkt. 155 at 17. There is nothing in the record that suggests the relationship between CCI and SGC
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`(or any other subsidiary) is anything other than that between a parent and subsidiary or a LLC
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`-7-
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`Case 2:23-cv-00059-JRG Document 25 Filed 03/25/24 Page 11 of 15 PageID #: 683
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`manager and a managed LLC. See § II.A, supra; Dkt. 82 at 20-23; E. Texas Med. Ctr. Reg’l
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`Healthcare Sys. v. Slack, 916 F. Supp. 2d 719, 722 (E.D. Tex. 2013) (Gilstrap, J.) (rejecting agency
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`relationship “based merely on” a “corporate relationship”); Charles v. Charles, No. 21-CV-2061,
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`2022 WL 4747499, at *4 (S.D. Tex. Sept. 30, 2022) (same); L.B. Benon Family Ltd. P’ship v.
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`Wells Fargo Bank, N.A., SA-21-CA-01115, 2022 WL 16825204, at *4 (W.D. Tex. Nov. 7, 2022)
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`(same). And here, too, Touchstream misrepresents that CCI, CCO, or its officers, acting as CCI
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`or CCO, hire and fire employees, which is “directly contradicted” by the corporate representatives.
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`See § II.A, supra; Dkt. 82 at 6, 17-18; Andra Grp., 6 F.4th at 1288-89.
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`Nor has CCI or CCO manifested consent for CC LLC employees to act on their behalf
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`based on
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`. Cf. Dkt. 155 at 18. Touchstream fails to explain how
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`CCI or CCO “manifest of consent” for all CC LLC employees to act on CCI’s or CCO’s behalf
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`for all purposes if, as is the case here, only certain employees may sign certain agreements in
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`limited circumstances, i.e., where certain threshold factors are met. Ex. 14, Kovach Dep., 53:23-
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`56:20. Touchstream also claims that CCI and CCO “manifested consent for CC LLC employees
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`to act on their behalf” because the Spectrum website or public filings list employee counts. Dkt.
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`155 at 18. Touchstream does not cite any authority for the proposition that acknowledging the
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`existence of employees who support the Spectrum brand is a manifestation “of consent” for CC
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`LLC employees to act on CCI’s or CCO’s behalf.
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`Lastly, Touchstream does not explain how employees who apply for jobs “through a single
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`website, “jobs.spectrum.com” or signed an arbitration agreement regarding claims against
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`“Charter, or any of its subsidiaries, parent, or affiliated entities,” somehow consented “to act as
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`the agents of” CCI or CCO. Dkt. 155 at 19 (emphasis added).
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`3. CCI Has Not Ratified Any Place of Business In This District
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`-8-
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`Case 2:23-cv-00059-JRG Document 25 Filed 03/25/24 Page 12 of 15 PageID #: 684
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`Touchstream conflates distinct legal theories to argue that the “places of business in this
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`District may be imputed to the Charter enterprise as a whole” because the Court concluded in
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`Entropic that “CCI ratified locations in this District as its own and lacks formal corporate
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`separateness between entities.” Dkt. 155 at 20-23. Touchstream mainly asserts arguments
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`surrounding a purported lack of corporate separateness, again ignoring “directors and officers
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`holding positions with a parent and its subsidiary can and do ‘change hats’ to represent the two
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`corporations separately[.]” Bestfoods, 524 U.S. at 69. Touchstream further fails to explain how a
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`lack of corporate formalities is evidenced by (1) customers’ knowledge regarding the different
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`entities or (2) the entities’ receipt of mail at a common address that is then “divert[ed] . . . to the
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`right entity.” Cf. Dkt. 155 at 23; see Ex. 14, Kovach Dep., 118:12-18. Nonetheless, as discussed
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`above, CCI and CCO maintain all corporate forms.
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`Moreover, although the Amended Complaint does not allege ratification, Touchstream
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`argues that CCI and CCO ratified the “Spectrum stores in the district.” Dkt. 155 at 19-20. Neither
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`CCI nor CCO have negotiated or signed leases on behalf of CCI or CCO in the district. Dkt. 82 at
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`22-23. Moreover, because CCI and CCO have maintained the corporate forms, the “shared use”
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`of “Spectrum” “does not detract from the separateness of [its] business.” Andra Grp, 6 F.4th at
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`1290. And, to analyze whether CCI ratified any stores in this district, which it has not, courts
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`weigh many considerations, which Touchstream does not address. Id. at 1289-90.
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`C.
`Touchstream Fails to Allege Defendants’ Knowledge of the Asserted Patents
`Touchstream admits that the Amended Complaint contains allegations regarding
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`
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`Defendants’ purported knowledge of “patent-pending casting technology,” and not knowledge of
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`-9-
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`Case 2:23-cv-00059-JRG Document 25 Filed 03/25/24 Page 13 of 15 PageID #: 685
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`the Asserted Patents. See Dkt. 155 at 26. On this basis alone, the willful infringement claim should
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`be dismissed.5 Fractus, 2021 WL 2483155, at *4.
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`Moreover, the Court recently dismissed Touchstream’s pre-suit willful infringement claim
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`against Comcast based on nearly identical allegations concerning the same time periods (2011
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`through 2017) and the same patents (’251, ’751, and ’934). Dkt. 156. The willful infringement
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`claim must be dismissed because Touchstream does not allege that (1) Touchstream identified
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`“any patent applications . . . during the[] meetings that resulted in the grant of the Asserted Patents,
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`or the Asserted Patents themselves,” or (2) there were any meetings with Defendants after the
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`Asserted Patents issued. Dkt. 158 at 5-6.
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`Even if the Court finds that these allegations constitute “notice (and therefore knowledge)”
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`of the Asserted Patents, Touchstream still fails allege “culpable conduct or any set of facts
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`supporting an inference of culpable conduct.” Fractus, 2021 WL 2483155, at *4.
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`D.
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`The Court Should Deny Touchstream’s Request to Replead
`Touchstream was required to comply with Rule 15(a) and to explain its delay in requesting
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`
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`to amend the complaint. DW Volbleu, LLC v. Honda Aircraft Co., LLC, No. 21-CV-637, 2024
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`WL 169569, at *2 (E.D. Tex. Jan. 16, 2024). Touchstream justifies its belated request by
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`misrepresenting that it “uncovered” certain allegations “during discovery.” Dkt. 155 at 29. The
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`discovery purportedly “uncovered” is Touchstream’s own produced documents or information that
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`have been within Touchstream’s knowledge or possession well before it filed the original
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`complaint and the deadline to file amended pleadings. Id.; Dkt. 71 at 5; Dkt. 155 at 27-29 (citing
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`Touchstream’s own interrogatory responses). The Court should deny Touchstream’s request.
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`
`5
`Touchstream’s reliance on cases stating courts may “consider the totality of the
`circumstances,” Dkt. 155 at 25-26 & n.6, ignores that Touchstream must first plausibly allege
`“[k]nowledge of the asserted patents” before the Court may “consider the totality of the
`circumstances” on the merits. Fractus, 2021 WL 2483155, at *4.
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`-10-
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`

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`Case 2:23-cv-00059-JRG Document 25 Filed 03/25/24 Page 14 of 15 PageID #: 686
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`III.
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`CONCLUSION
`Accordingly, the Court should grant Defendants’ motion.
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`Dated: March 18, 2024
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`Respectfully submitted,
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`/s/ Melissa Brown (with permission)
`David Benyacar
`Daniel L. Reisner
`Elizabeth Long
`Melissa Brown
`Robert Stout
`ARNOLD & PORTER KAYE SCHOLER LLP
`250 West 55th Street
`New York, New York, 10019-9710
`Telephone: (212) 836-8000
`Email: david.benyacar@arnoldporter.com
`Email: daniel.reisner@arnoldporter.com
`Email: elizabeth.long@arnoldporter.com
`Email: melissa.brown@arnoldporter.com
`Email: robert.stout@arnoldporter.com
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`
`Dina Hayes
`ARNOLD & PORTER KAYE SCHOLER LLP
`70 West Madison Street, Suite 4200
`Chicago, Illinois 60602-4321
`Telephone: (312) 583-2300
`Email: dina.hayes@arnoldporter.com
`
`Deron R. Dacus
`State Bar No. 00790553
`The Dacus Firm, P.C.
`821 ESE Loop 323, Suite 430
`Tyler, TX 75701
`Phone: (903) 705-1117
`Fax: (903) 581-2543
`Email: ddacus@dacusfirm.com
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`Attorneys for Defendants
`Charter Communications, Inc., Charter
`Communications Operating, LLC, Spectrum
`Management Holding Company, LLC, Time
`Warner Cable Enterprises LLC, Spectrum
`Gulf Coast, LLC and Charter
`Communications, LLC
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`-11-
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`Case 2:23-cv-00059-JRG Document 25 Filed 03/25/24 Page 15 of 15 PageID #: 687
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`CERTIFICATE OF SERVICE
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`I hereby certify that a true and correct copy of the above and foregoing document has been
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`served on all counsel of record via email and the Court’s ECF system on March 18, 2024.
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`/s/ Melissa Brown
`Melissa Brown
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`-1-
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