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`Case 2:23-cv-00059-JRG Document 25-4 Filed 03/25/24 Page 1 of 29 PagelD #: 739
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`EXHIBIT 18
`EXHIBIT 18
`
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`Case 2:23-cv-00059-JRG Document 25-4 Filed 03/25/24 Page 1 of 29 PagelD #: 739
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`EXHIBIT 18
`EXHIBIT 18
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`
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`Case 2:23-cv-00059-JRG Document 25-4 Filed 03/25/24 Page 2 of 29 PageID #: 740
`Case: 23-136 Document: 11 Page: 1 Filed: 06/30/2023
`
`No. 23-136
`
`In the United States Court of Appeals
`for the Federal Circuit
`_______________________________________
`
`IN RE: CHARTER COMMUNICATIONS, INC.,
`
`Petitioner.
`___________________________________
`
`On Petition for a Writ of Mandamus to the
`United States District Court for the Eastern District of Texas
`Case No. 22-CV-0125
`Hon. Rodney Gilstrap, United States District Judge
`____________________________________
`REPLY IN SUPPORT OF
`PETITION FOR A WRIT OF MANDAMUS
`__________________________________
`
`Daniel Reisner
`Elizabeth Long
`Michael Lynn
`Melissa Brown
`Arnold & Porter Kaye Scholer LLP
`250 West 55th Street
`New York, New York 10019
`Tel.: (212) 836-8000
`Fax: (212) 836-8689
`
`Attorneys for Petitioner
`Charter Communications, Inc.
`
`June 30, 2023
`
`
`
`Case 2:23-cv-00059-JRG Document 25-4 Filed 03/25/24 Page 3 of 29 PageID #: 741
`Case: 23-136 Document: 11 Page: 2 Filed: 06/30/2023
`
`FORM 9. Certificate of Interest
`
`Form 9 (p. 1)
`March 2023
`
`UNITED STATES COURT OF APPEALS
`FOR THE FEDERAL CIRCUIT
`
`CERTIFICATE OF INTEREST
`
`Case Number
`Short Case Caption
`Filing Party/Entity
`
`23-136
`In re Charter Communications, Inc.
`Charter Communications, Inc.
`
`Instructions:
`
`1. Complete each section of the form and select none or N/A if appropriate.
`
`2. Please enter only one item per box; attach additional pages as needed, and
`check the box to indicate such pages are attached.
`
`3. In answering Sections 2 and 3, be specific as to which represented entities
`the answers apply; lack of specificity may result in non-compliance.
`
`4. Please do not duplicate entries within Section 5.
`
`5. Counsel must file an amended Certificate of Interest within seven days after
`any information on this form changes. Fed. Cir. R. 47.4(c).
`
`I certify the following information and any attached sheets are accurate and
`complete to the best of my knowledge.
`
`06/30/2023
`Date: _________________
`
`Signature:
`
`/s/ Daniel Reisner
`
`Name:
`
`Daniel Reisner
`
`
`
`Case 2:23-cv-00059-JRG Document 25-4 Filed 03/25/24 Page 4 of 29 PageID #: 742
`Case: 23-136 Document: 11 Page: 3 Filed: 06/30/2023
`
`FORM 9. Certificate of Interest
`
`1. Represented
`Entities.
`Fed. Cir. R. 47.4(a)(1).
`Provide the full names of
`all entities represented by
`undersigned counsel
`in
`this case.
`
`Form 9 (p. 2)
`March 2023
`
`2. Real Party in
`Interest.
`Fed. Cir. R. 47.4(a)(2).
`Provide the full names of
`all real parties in interest
`for the entities. Do not list
`the real parties if they are
`the same as the entities.
`
`3. Parent Corporations
`and Stockholders.
`Fed. Cir. R. 47.4(a)(3).
`Provide the full names of
`all parent corporations for
`the
`entities and all
`publicly held companies
`that own 10% or more
`stock in the entities.
`(cid:1798) None/Not Applicable (cid:1798) None/Not Applicable
`
`✔
`
`Charter Communications, Inc.
`
`Liberty Broadband Corporation
`
`(cid:1798) Additional pages attached
`
`
`
`Case 2:23-cv-00059-JRG Document 25-4 Filed 03/25/24 Page 5 of 29 PageID #: 743
`Case: 23-136 Document: 11 Page: 4 Filed: 06/30/2023
`
`FORM 9. Certificate of Interest
`
`Form 9 (p. 3)
`March 2023
`
`4. Legal Representatives. List all law firms, partners, and associates that (a)
`appeared for the entities in the originating court or agency or (b) are expected to
`appear in this court for the entities. Do not include those who have already entered
`an appearance in this court. Fed. Cir. R. 47.4(a)(4).
`(cid:1798) None/Not Applicable
`(cid:1798) Additional pages attached
`David Benyacar
`(Arnold & Porter)
`
`Deron R. Dacus
`(The Dacus Firm, PC)
`
`Albert Boardman
`(Arnold & Porter)
`
`Amy L. DeWitt
`(Arnold & Porter)
`
`Jacob Bass
`(Arnold & Porter)
`
`Marc Cohn
`(Arnold & Porter)
`
`Paul Margulies
`(Arnold & Porter)
`
`Palak M. Parikh
`(Arnold & Porter)
`
`✔
`
`5. Related Cases. Other than the originating case(s) for this case, are there
`related or prior cases that meet the criteria under Fed. Cir. R. 47.5(a)?
`(cid:1798) Yes (file separate notice; see below) (cid:1798) No (cid:1798) N/A (amicus/movant)
`If yes, concurrently file a separate Notice of Related Case Information that complies
`with Fed. Cir. R. 47.5(b). Please do not duplicate information. This separate
`Notice must only be filed with the first Certificate of Interest or, subsequently, if
`information changes during the pendency of the appeal. Fed. Cir. R. 47.5(b).
`
`6. Organizational Victims and Bankruptcy Cases. Provide any information
`required under Fed. R. App. P. 26.1(b) (organizational victims in criminal cases)
`and 26.1(c) (bankruptcy case debtors and trustees). Fed. Cir. R. 47.4(a)(6).
`(cid:1798) None/Not Applicable
`(cid:1798) Additional pages attached
`
`✔
`
`
`
`Case 2:23-cv-00059-JRG Document 25-4 Filed 03/25/24 Page 6 of 29 PageID #: 744
`Case: 23-136 Document: 11 Page: 5 Filed: 06/30/2023
`
`FORM 9A. Notice of Related Case Information Form 9A (p. 1)
`March 2023
`
`
`UNITED STATES COURT OF APPEALS
`FOR THE FEDERAL CIRCUIT
`
`NOTICE OF RELATED CASE INFORMATION
`
`Case Number
`Short Case Caption
`Filing Party/Entity
`
`Instructions: Do not duplicate information. The notice must only be filed at the
`time of filing the first Certificate of Interest or, subsequently, if information
`changes during the pendency of the appeal. See Fed. Cir. R. 47.5(b). Attach
`additional pages as needed. This notice must not be included in a motion,
`petition, related response, or brief; please only include the Certificate of Interest
`(Form 9) in those documents.
`
`1. Related or prior cases. Provide the case title, case number, and originating
`tribunal for each case. Fed. Cir. R. 47.5(b)(1).
`
`
`
`Additional pages attached
`
`
`
`
`
`
`
`
`
`
`
`
`
`23-136
`
`In re Charter Communications, Inc.
`
`Charter Communications, Inc.
`
`Entropic Comms., LLC v. Charter Comms., Inc., No. 2:23-CV-00050-JRG (E.D. Tex.)
`Entropic Comms., LLC v. Charter Comms., Inc., 2:23-CV-00051-JRG (E.D. Tex.)
`Entropic Comms., LLC v. Charter Comms., Inc., 2:23-CV-00052-JRG (E.D. Tex.)
`Touchstream Technologies, Inc. v. Charter Comms., Inc., et al., 2:23-cv-00059-JRG
`(consolidated member case of lead case 23-cv-00060) (E.D. Tex.)
`
`
`
`Case 2:23-cv-00059-JRG Document 25-4 Filed 03/25/24 Page 7 of 29 PageID #: 745
`Case: 23-136 Document: 11 Page: 6 Filed: 06/30/2023
`
`FORM 9A. Notice of Related Case Information Form 9A (p. 2)
`March 2023
`
`2. Names of all parties involved in the cases listed above. Do not duplicate
`the names of parties. Do not relist the case information. Fed. Cir. R.
`47.5(b)(2)(A).
`
`
`
`
`
`Additional pages attached
`
`
`3. Names of all law firms, partners, and associates in the cases listed above.
`Do not duplicate the names of law firms, partners, and associates. Do not relist
`case information and party names. Fed. Cir. R. 47.5(b)(2)(B).
`
`
`
`
`
`
`
`
`
`Additional pages attached
`
`
`
`
`
`
`Signature:
`
`Name:
`
`
`
`
`
`
`
` certify the following information and any attached sheets are accurate and complete
`to the best of my knowledge.
`
`Date:
`
`
` I
`
`
`
`06/30/2023
`
`/s/ Daniel Reisner
`
`Daniel Reisner
`
`Arnold & Porter Kaye Scholer LLP (David Benyacar, Albert Boardman, Melissa
`Brown, Amy L. DeWitt, Dina Hayes, Elizabeth Long, Daniel Reisner, Robert Stout);
`Winston & Strawn (Krishnan Padmanabhan, Saranya Raghavan); The Dacus Firm,
`PC (Deron R. Dacus); Shook Hardy & Bacon LLP (Michael W. Gray, Andrew Long,
`Anita Liu, Megan Mitchell); K&L Gates, LLP (James A Engel, Darlene Ghavimi,
`George Summerfield, James A. Shimota, Melissa Haulcomb, Peter Soskin); Ward,
`Smith & Hill, PLLC (Andra L. Fair, Jack Wesley Hill); Bridges IP Consulting
`(Kenneth H. Bridges)
`
`Charter Communications, Inc.
`Entropic Communications, LLC
`Touchstream Technologies, Inc.
`
`
`
`Case 2:23-cv-00059-JRG Document 25-4 Filed 03/25/24 Page 8 of 29 PageID #: 746
`Case: 23-136 Document: 11 Page: 7 Filed: 06/30/2023
`
`
`
`TABLE OF CONTENTS
`
`Page
`
`I.
`II.
`
`2.
`
`INTRODUCTION ........................................................................................... 1
`THE COURT SHOULD EXERCISE ITS DISCRETION TO ISSUE A
`WRIT OF MANDAMUS ................................................................................ 2
`III. THE RIGHT TO MANDAMUS IS CLEAR AND INDISPUTABLE ........... 5
`1.
`Respondent Fails To Contest That the District Court Relied On an
`Erroneous Legal Standard and Factual Findings To Impute the
`Presence Of Spectrum Gulf To CCI ...................................................... 5
`CCI Does Not Have a Regular and Established Place of Business
`In the District ....................................................................................... 10
`(a) CCI Does Not Have a “Place Of Business” In the
`District ............................................................................ 10
`(b) CCI Has No Agents Conducting Business in the
`District ............................................................................ 11
`Entropic Fails to Demonstrate That CCI Ratified Any
`Place Of Business in the District .................................... 14
`IV. CONCLUSION .............................................................................................. 16
`
`
`
`(c)
`
`i
`
`
`
`Case 2:23-cv-00059-JRG Document 25-4 Filed 03/25/24 Page 9 of 29 PageID #: 747
`Case: 23-136 Document: 11 Page: 8 Filed: 06/30/2023
`
`
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases
`Andra Grp., LP v. Victoria’s Secret Stores, LLC,
`6 F.4th 1283 (Fed. Cir. 2021) ......................................................................passim
`Celgene Corp. v. Mylan Pharms. Inc.,
`17 F.4th 1111 (Fed. Cir. 2021) ............................................................... 7, 8, 9, 16
`Cheney v. U.S. Dist. Court for D.C.,
`542 U.S. 367 (2004) .......................................................................................... 2, 3
`Clay v. Palfinger USA, LLC,
`20-cv-724, 2021 WL 430685 (W.D. Tex. Feb. 8, 2021) .................................... 12
`Entropic Comms., LLC v. Charter Comms., Inc.,
`23-cv-0051, Dkt. 24 (E.D. Tex.) ........................................................................... 4
`Entropic Comms., LLC v. DIRECTV, LLC,
`22-cv-00076-JRG, 2022 WL 19076758 (E.D. Tex. Oct. 24, 2022) ..................... 4
`Ericsson Inc. v. D-Link Corp.,
`10-cv-473, 2013 WL 12044890 (E.D. Tex. June 20, 2013) ............................... 11
`In re BigCommerce, Inc.,
`890 F.3d 978 (Fed. Cir. 2018) .............................................................................. 3
`In re Stingray IP Sols., LLC,
`56 F.4th 1379 (Fed. Cir. 2023) ............................................................................. 3
`In re ZTE (USA), Inc.,
`890 F.3d 1008 (Fed. Cir. 2018) .................................................................. 2, 3, 16
`Interactive Toybox, LLC v. The Walt Disney Co.,
`17-cv-1137, 2018 WL 5284625 (W.D. Tex. Oct. 24, 2018) .......................... 8, 10
`IPVX Patent Holdings, Inc. v. Broadvox Holding Co., LLC,
`11-cv-0575, 2012 WL 13012617 (E.D. Tex. Sept. 26, 2012) .............................. 9
`
`ii
`
`
`
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`Case: 23-136 Document: 11 Page: 9 Filed: 06/30/2023
`
`Mobius Risk Grp., LLC v. Glob. Clean Energy Holdings, Inc.,
`10-cv-1708, 2011 WL 3568074 (S.D. Tex. Aug. 15, 2011) ............................... 12
`Parallel Network Licensing LLC v. Arrow Elecs., Inc.,
`21-cv-0714, 2022 WL 1597364 (E.D. Tex. May 19, 2022) ................................. 9
`Soverain IP, LLC v. AT&T, Inc.,
`17-cv-0293, 2017 WL 5126158 (E.D. Tex. Oct. 31, 2017) ......................... 5, 7, 8
`United States v. Bestfoods,
`524 U.S. 51 (1998) .............................................................................................. 16
`Statutes
`28 U.S.C. § 1400(b) ................................................................................................... 4
`28 U.S.C. § 1406(a) ........................................................................................... 1, 2, 3
`
`
`iii
`
`
`
`Case 2:23-cv-00059-JRG Document 25-4 Filed 03/25/24 Page 11 of 29 PageID #: 749
`Case: 23-136 Document: 11 Page: 10 Filed: 06/30/2023
`
`
`I.
`
`INTRODUCTION
`Respondent Entropic Communications, LLC (“Entropic”) does not attempt
`
`to address, until the end of its brief, the district court’s erroneous conclusion that
`
`patent venue was proper over CCI based on the presence of a separate and distinct
`
`subsidiary in the district. Entropic glosses over the fact that the district court
`
`misapplied the Cray factors by improperly commingling concepts of agency,
`
`ratification, and imputation, contrary to this Court’s precedents. Likewise,
`
`Entropic does not attempt to defend the district court’s creation of a newly-minted
`
`“single enterprise” standard for imputation that disregarded factors that regional
`
`circuit law required the district court to consider prior to imputing the presence of a
`
`subsidiary to a parent corporation.
`
`Instead, Entropic spends the majority of its brief on mandamus jurisdiction,
`
`asserting that mandamus is never appropriate to correct a district court’s
`
`misapplication of 28 U.S.C. § 1406(a). That directly contradicts this Court’s
`
`precedent. Many times, this Court has issued writs of mandamus to correct district
`
`courts’ improper expansion of the patent venue statute—including decisions by the
`
`same district court judge.
`
`The district court’s decision turns the law of imputation on its head by
`
`disregarding the presumption of corporate separateness under its newly-created
`
`“single enterprise” standard, contrary to settled alter ego law in the Fifth Circuit.
`
`1
`
`
`
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`Case: 23-136 Document: 11 Page: 11 Filed: 06/30/2023
`
`
`This Court should issue a writ of mandamus and correct the district court’s
`
`misapplication of the law.
`
`II. THE COURT SHOULD EXERCISE ITS DISCRETION TO ISSUE A
`WRIT OF MANDAMUS
`Entropic boldly, and without qualification, asserts in its first sentence that
`
`
`
`“[t]his Court has never issued a writ of mandamus ordering a district court to
`
`dismiss an action for improper venue under 28 U.S.C. § 1406(a).” Opp. 1. This is
`
`demonstrably false—so much so that even Entropic later admits that this Court “in
`
`very rare circumstances, granted petitions for mandamus in the context of improper
`
`venue motions under § 1406(a).” Opp. 5.
`
`
`
`This Court, for example, recently granted a petition for a writ of mandamus
`
`in In re Google LLC where the relief sought, and granted, was an order directing
`
`the district court to “dismiss the case for lack of venue.” 949 F.3d 1338, 1339
`
`(Fed. Cir. 2020); accord In re ZTE (USA), Inc., 890 F.3d 1008, 1010 (Fed. Cir.
`
`2018) (same). That is the same relief that CCI seeks here.
`
`
`
`Entropic also argues that mandamus is not appropriate unless this Court has
`
`already considered the issue presented or relief sought (e.g., Opp. 1-2, 4), but
`
`provides no support for this contention. Nor can it; the decision to issue a writ of
`
`mandamus “is a matter vested in the discretion of the court to which the petition is
`
`made.” Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 391 (2004). And this
`
`Court has exercised its discretion to grant mandamus—regardless of subject
`
`2
`
`
`
`Case 2:23-cv-00059-JRG Document 25-4 Filed 03/25/24 Page 13 of 29 PageID #: 751
`Case: 23-136 Document: 11 Page: 12 Filed: 06/30/2023
`
`
`matter—“in narrow circumstances where doing so is important to ‘proper judicial
`
`administration,’ such as when an appellate court ‘corrects a district court’s answers
`
`to basic, undecided legal questions’ concerning judicial administration matters.”
`
`In re Stingray IP Sols., LLC, 56 F.4th 1379, 1382 (Fed. Cir. 2023) (cleaned up).
`
`
`
`Entropic next contends that there are no circumstances in which mandamus
`
`is appropriate to review the denial of a motion to dismiss for improper venue under
`
`28 U.S.C. § 1406(a) because there are other adequate remedies, e.g., appeal after
`
`final judgment or interlocutory appeal. Opp. 1-2, 4-9. If that is correct, then there
`
`would be no situations where it would be proper for this Court to issue a writ of
`
`mandamus in a suit involving patent venue, which is obviously not the case. Yet,
`
`on the other hand, Entropic acknowledges that even where other remedies are
`
`available, there are circumstances in which this Court must correct a Section 1406
`
`decision under the “judicial administration” standard. Opp. 5; accord Stingray, 56
`
`F.4th at 1383; Google, 949 F.3d at 1342-43; In re BigCommerce, Inc., 890 F.3d
`
`978, 981 (Fed. Cir. 2018); ZTE, 890 F.3d at 1011. Entropic ignores that where
`
`mandamus is appropriate “under the narrow ‘administration of justice’ standard,
`
`[this Court has] not separately required petitioners to show satisfaction of Cheney’s
`
`three requirements,” and has “granted mandamus relief without even citing the
`
`three requirements set out in Cheney.” Stingray, 56 F.4th at 1382-83 (citations
`
`omitted).
`
`3
`
`
`
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`Case: 23-136 Document: 11 Page: 13 Filed: 06/30/2023
`
`
`
`
`Entropic further contends that “mere cost of litigation alone” is insufficient
`
`to warrant mandamus. Opp. 7-8. CCI never suggested that the cost of litigation
`
`was sufficient to justify mandamus. See Pet. 31. Rather, as explained in its
`
`Petition, mandamus is necessary to correct the district court’s patently erroneous
`
`conclusions that are contrary to both this Court’s precedents and other district court
`
`decisions within the Fifth Circuit regarding the standard for imputing the actions of
`
`a subsidiary to its parent and the application of agency, ratification, and imputation
`
`under Section 1400(b). E.g., Pet. 4-5.
`
`
`
`Furthermore, the district court has already issued two decisions that reflect
`
`an erroneous departure from the law applied by this Court and other district courts
`
`within the Fifth Circuit. See Appx1; Entropic Comms., LLC v. DIRECTV, LLC,
`
`22-cv-00076-JRG, 2022 WL 19076758 (E.D. Tex. Oct. 24, 2022). The district
`
`court is likely to do the same in four other litigations pending against CCI in the
`
`Eastern District of Texas. Although the district court has yet to rule on CCI’s
`
`venue motions in those litigations, Entropic has cited the district court’s decision as
`
`a basis for the district court to deny CCI’s venue-related motions in three of those
`
`cases. E.g., Entropic Comms., LLC v. Charter Comms., Inc., 23-cv-0051 (E.D.
`
`Tex.), Dkt. 24 at 1. Without mandamus relief, the district court’s decision invites
`
`an influx of patent litigation against parent corporations in a district in which a
`
`subsidiary or related company has operations, even where the corporate forms are
`
`4
`
`
`
`Case 2:23-cv-00059-JRG Document 25-4 Filed 03/25/24 Page 15 of 29 PageID #: 753
`Case: 23-136 Document: 11 Page: 14 Filed: 06/30/2023
`
`
`maintained. Issuing a writ of mandamus in this case will ensure uniformity among
`
`district courts and will clarify and correct the district court’s incorrect application
`
`of the patent venue statute as it relates to the parent-subsidiary relationship where
`
`the corporate forms remain intact.
`
`III. THE RIGHT TO MANDAMUS IS CLEAR AND INDISPUTABLE
`Entropic incorrectly states that the Petition invokes the “wrong standard” of
`
`review. Opp. 9-12. In the “Issues Presented” and in the “Reasons the Writ
`
`Should Issue” sections of the Petition, CCI made clear that the question is whether
`
`the district court reached “patently erroneous result[s]” by abusing its discretion in
`
`misapplying the law, by misapplying the law to the facts, and by relying on clearly
`
`erroneous factual findings. E.g., Pet. 1, 13.
`
`1. Respondent Fails To Contest That the District Court Relied On
`an Erroneous Legal Standard and Factual Findings To Impute
`the Presence Of Spectrum Gulf To CCI
`
`
`
`
`
`The district court erroneously stated that the “appropriate inquiry” when
`
`considering lack of corporate separateness, is whether CCI “and its subsidiaries
`
`‘act as a single enterprise.’” Appx19 (citing Soverain IP, LLC v. AT&T, Inc., 17-
`
`cv-0293, 2017 WL 5126158, at *1 (E.D. Tex. Oct. 31, 2017), report and
`
`recommendation adopted, 2017 WL 6452802 (Dec. 18, 2017)). As explained in
`
`the Petition, that is not the “appropriate inquiry” (Pet. 13-19) and the district court
`
`abused its discretion by relying on an erroneous legal standard to conclude that the
`
`5
`
`
`
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`Case: 23-136 Document: 11 Page: 15 Filed: 06/30/2023
`
`
`presence of subsidiaries in the district should be imputed to CCI solely because
`
`they act as a “single enterprise.”
`
`Entropic argues that because the district court labeled a section of the
`
`decision “Lack of Corporate Separateness,” and included “an analysis of the
`
`difference between ratification and imputation,” the district court ipso facto
`
`applied the correct legal standard to the facts.1 Opp. 12-13. That is incorrect.
`
`Nowhere in its analysis did the district court acknowledge the factors that a
`
`district court must consider under applicable Fifth Circuit law to determine a lack
`
`of corporate separateness. Instead, the district court disregarded Fifth Circuit law
`
`and solely relied on purported facts that it believed supported its newly-created
`
`“single enterprise” standard. That was a clear abuse of discretion that led to a
`
`patently erroneous result. Importantly, Entropic does not even mention that the
`
`district court incorrectly stated the “appropriate inquiry” for lack of corporate
`
`separateness is whether CCI and the subsidiaries acted as a “single enterprise.”
`
`And, noticeably absent from Entropic’s response is any discussion regarding the
`
`district court’s newfound “single enterprise” theory vis-à-vis the various factors
`
`
`1 Entropic does not explain why the Court need not reach the issue of imputation if
`it finds that the district court did not err in its ratification conclusion. Opp. 12.
`Even though Entropic claims to have “addressed” why the district court’s
`ratification holding was not patently erroneous later in its opposition, Entropic
`does not provide any further analysis or explanation. Compare Opp. 12, with
`Opp. 19-20.
`
`6
`
`
`
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`Case: 23-136 Document: 11 Page: 16 Filed: 06/30/2023
`
`
`that must be considered under Fifth Circuit law to establish a lack of corporate
`
`separateness. See Pet. 15.
`
`Entropic nonetheless states that “this is the correct legal standard and the
`
`same one used in the cases [CCI] cites.” Opp. 13. Entropic is wrong. Those
`
`cases confirm that the district court did not apply the correct legal standard
`
`because they make clear that “even if a parent corporation controls a subsidiary’s
`
`operations and the companies share a unitary business purpose, the subsidiary’s
`
`presence in a venue cannot be imputed to the parent absent disregard for corporate
`
`separateness.” Soverain, 2017 WL 5126158, at *1 (stating that corporations “may
`
`be treated as one for purposes of venue” if “the corporations disregard their
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`separateness and act as a single enterprise.” (emphasis added; citation omitted));
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`Andra Grp., LP v. Victoria’s Secret Stores, LLC, 6 F.4th 1283, 1289 (Fed. Cir.
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`2021) (stating that the “threshold inquiry when determining whether the place of
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`business of one company can be imputed to another, related company is whether
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`they have maintained corporate separateness.” (emphasis added)); Celgene
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`Corp. v. Mylan Pharms. Inc., 17 F.4th 1111, 1125-26 (Fed. Cir. 2021) (quoting
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`Andra for lack of corporate separateness, listing “considerations” the regional
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`circuit court “looks at” in an alter ego analysis, which is a “‘notoriously difficult’
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`burden” (citations omitted)).
`
`7
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`
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`Case 2:23-cv-00059-JRG Document 25-4 Filed 03/25/24 Page 18 of 29 PageID #: 756
`Case: 23-136 Document: 11 Page: 17 Filed: 06/30/2023
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`Entropic similarly does not respond to arguments that the district court
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`misapplied the law governing lack of corporate separateness to the facts
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`(Pet. 15-16) or that the district court relied on erroneous factual findings
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`(Pet. 16-19). Entropic merely responds that the “district court’s well-founded
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`factual findings and its conclusions therefrom speak for themselves” and “will not
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`be repeated needlessly here.” Opp. 13. That fails to respond to the district court’s
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`clear disregard for well-established principles that: (1) a “subsidiary’s presence in
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`a venue cannot be imputed to the parent absent disregard for corporate
`
`separateness,” even “if a parent corporation controls a subsidiary’s operations and
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`the companies share a unitary business purpose” and
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`there exists an
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`“interdependence” between the entities, Soverain, 2017 WL 5126158, at *1
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`(citations omitted); (2) to find lack of corporate separateness, “[t]here must be a
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`‘plus factor, something beyond the subsidiary’s mere presence within the bosom
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`of the corporate family,’” Interactive Toybox, LLC v. The Walt Disney Co., 17-cv-
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`1137, 2018 WL 5284625, at *3 (W.D. Tex. Oct. 24, 2018); (3) even “100% stock
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`ownership and commonality of officers and directors are not alone sufficient to
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`establish an alter ego relationship between two corporations,” id. (citation
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`omitted); Celgene, 17 F.4th at 1126; and (4) corporate separateness is maintained
`
`even where there is “shared marketing, branding, and trade names” as well as a
`
`8
`
`
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`Case 2:23-cv-00059-JRG Document 25-4 Filed 03/25/24 Page 19 of 29 PageID #: 757
`Case: 23-136 Document: 11 Page: 18 Filed: 06/30/2023
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`parent’s involvement in alleged infringing conduct or in signing lease documents.
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`Celgene, 17 F.4th at 1126-27.
`
`Entropic also has no answer for the district court’s erroneous reliance on
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`“filings” made well before 2022 and altogether ignores that “[v]enue is
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`determined by the facts and situation as of the date suit is filed.” Pet. 16-17
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`(quoting Parallel Network Licensing LLC v. Arrow Elecs., Inc., 21-cv-0714, 2022
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`WL 1597364, at *3 (E.D. Tex. May 19, 2022)). Nor does Entropic dispute that
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`the district court effectively held, without any support, that a manager that acts on
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`behalf of an LLC is one and the same with the LLC it manages. As described in
`
`the Petition, settled law is clear that this contractual relationship alone is
`
`insufficient to support imputation where, as here, the corporate forms are
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`maintained. Pet. 17-18; IPVX Patent Holdings, Inc. v. Broadvox Holding Co.,
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`LLC, 11-cv-0575, 2012 WL 13012617, at *3 (E.D. Tex. Sept. 26, 2012)
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`(considering alter ego argument in patent venue context, and rejecting argument
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`that a parent/manager “controlled” the subsidiary/managed entity, concluding
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`“there is no evidence that the control exerted by [the parent-defendant] is greater
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`than that ‘normally associated with common ownership and directorship.’”
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`(citation omitted)).
`
`9
`
`
`
`Case 2:23-cv-00059-JRG Document 25-4 Filed 03/25/24 Page 20 of 29 PageID #: 758
`Case: 23-136 Document: 11 Page: 19 Filed: 06/30/2023
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`2. CCI Does Not Have a Regular and Established Place of
`Business In the District
`
`
`
`
`
`(a) CCI Does Not Have a “Place Of Business” In the District
`CCI agrees with Entropic that the first Cray factor does not call for an
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`imputation or ratification analysis. See Opp. 14. However, Entropic ignores that
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`the district court, not CCI, “import[ed] imputation into” the analysis by finding
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`that CCI carried out its business in the district because “[CCI] is Spectrum, and
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`Spectrum is [CCI].” Opp. 15; but see Pet. 20; Appx5-Appx6.
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`Not only does Entropic fail to respond to this argument, but Entropic’s
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`response confirms that the district court relied on erroneous conclusions of law
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`because Entropic agrees that “a central point” of the district court’s “holding” is
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`that “despite all those subsidiaries there is one enterprise here, one single business
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`spanning the whole collection of entities.” Opp. 15-16 (emphases omitted); id.
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`at 16 (citing Appx18, which is the district court’s discussion regarding lack of
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`corporate separateness). Thus, Entropic’s only argument in support of the district
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`court’s decision is to disregard the corporate forms.
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`Yet, both the district court and Entropic disclaim the need to pierce the
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`corporate veil under this first Cray factor. Therefore, the district court was
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`required to “presume[ ] that corporations exist as separate entities.” Interactive
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`Toybox, 2018 WL 5284625, at *3. Neither the district court, nor Entropic, have
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`heeded that presumption under the first Cray factor. On this basis, the district
`
`10
`
`
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`Case 2:23-cv-00059-JRG Document 25-4 Filed 03/25/24 Page 21 of 29 PageID #: 759
`Case: 23-136 Document: 11 Page: 20 Filed: 06/30/2023
`
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`court abused its discretion and reached a patently erroneous conclusion—that a
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`parent corporation carries out its business in any location owned or operated by a
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`subsidiary without reference to the corporate forms.
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`(b) CCI Has No Agents Conducting Business
`in the District
`Contrary to Entropic’s representation, CCI does not argue that the district
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`court erred under the second Cray factor solely because “this case is like Andra.”
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`Opp. 17-18. Rather, CCI contends that the district court abused its discretion and
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`reached a patently erroneous result because it disregarded controlling law, i.e.,
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`Andra. Pet. 21-27.
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`Nonetheless, Entropic attempts to distinguish Andra because it involved a
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`lawsuit against a parent holding company and “several wholly-owned distinct
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`businesses,” whereas CCI is purportedly “one nationwide enterprise,” and “is not
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`organized as separate, distinct businesses[.]” Opp. 17-18 (emphasis in original).
`
`Entropic improperly assumes that CCI and the subsidiaries lack corporate
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`separateness—in fact, the record is undisputed that they are organized as distinct
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`and separate businesses—thereby acknowledging the only way to establish that
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`CC LLC employees are agents of CCI is to pierce the corporate veil.
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`This alleged distinction misses the mark because “[i]t is bedrock corporate
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`law that separate corporate entities are presumed separate.” Ericsson Inc. v.
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`D-Link Corp., 10-cv-473, 2013 WL 12044890, at *4 (E.D. Tex. June 20, 2013).
`
`11
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`
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`Case 2:23-cv-00059-JRG Document 25-4 Filed 03/25/24 Page 22 of 29 PageID #: 760
`Case: 23-136 Document: 11 Page: 21 Filed: 06/30/2023
`
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`This presumption applies to all separate corporate entities, including “to a parent
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`corporation and its separate corporate subsidiary as well, presuming, again, they
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`are distinct legal entities.” Mobius Risk Grp., LLC v. Glob. Clean Energy
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`Holdings, Inc., 10-cv-1708, 2011 WL 3568074, at *4 (S.D. Tex. Aug. 15, 2011);
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`Clay v. Palfinger USA, LLC, 20-cv-724, 2021 WL 430685, at *6 (W.D. Tex.
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`Feb. 8, 2021) (“Texas law presumes that separate companies, even if related, are
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`distinct entities” (emphasis added)), report and recommendation adopted, 2021
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`WL 8053491 (Feb. 26, 2021). CCI maintains all corporate formalities from its
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`separate and distinct subsidiaries, and therefore enjoys the presumption that CCI
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`and the subsidiaries exist as corporate entities.2 Pet. 5-7. Entropic’s interpretation
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`of Andra is therefore misguided.
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`Entropic also contends that Andra is “different in substance because the
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`detailed evidence of control is so different,” and there is a “much deeper factual
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`record” here. Opp. 18-29. Both of those assertions are incorrect. Andra involved
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`a fully-developed f
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