Case 1:21-cv-00896-ADA Document 435 Filed 06/13/22 Page 1 of 13
`PUBLIC VERSION
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`AUSTIN DIVISION
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`FINTIV, INC.,
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`v.
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`Plaintiff,
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`APPLE INC.,
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`Defendant.
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`§
`§ Civil Action No.: 1:21-cv-00896-ADA
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`§
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`§ JURY TRIAL DEMANDED
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`§
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`PLAINTIFF FINTIV, INC.’S EMERGENCY MOTION FOR
`REOPENING OF DISCOVERY, TRIAL CONTINUANCE, AND SANCTIONS
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`Plaintiff Fintiv, Inc. (“Fintiv” or “Plaintiff”)—having learned within the past two weeks of
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`critical new evidence suppressed by Defendant Apple Inc. (“Apple” or “Defendant”) in blatant
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`violation of its discovery obligations—respectfully moves to reopen discovery for the limited
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`purpose of addressing this new evidence, to continue the June 21, 2022 trial to allow such
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`discovery to be completed, and for monetary sanctions.
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`The newly discovered facts—evidenced by a sworn declaration and documentary
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`evidence—demonstrate that SK C&C d/b/a CorFire (“CorFire”), from which Fintiv acquired the
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`Patent-in Suit, shared key aspects of its patented mobile wallet technology during at least five in-
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`person meetings with Apple in 2011 and 2012—three years before Apple launched its infringing
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`Apple Pay—and that Apple thereafter hired CorFire employees who attended the meetings and
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`even put one in charge of its Apple Pay and Apple Wallet Management program. During
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`discovery, Apple not only wrongfully suppressed these facts—which go directly to Apple’s
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`willfulness in infringing the Patent-in Suit —but also falsely represented to Fintiv and this Court
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`that no such meetings had occurred.
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`Case 1:21-cv-00896-ADA Document 435 Filed 06/13/22 Page 2 of 13
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`Given the urgency of this Motion, Fintiv respectfully requests that the Court order
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`expedited briefing with Apple’s response due by Wednesday, June 8, 2022. Fintiv waives its right
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`to a reply and respectfully requests a hearing on or before Friday, June 10, 2022, if possible.
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`PROCEDURAL HISTORY & FACTUAL BACKGROUND
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`On July 14, 2020, Fintiv moved for leave to file a third amended complaint seeking relief
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`for claims including Apple’s willful infringement relating to pre-suit communications that Fintiv
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`discovered—and that Apple had failed to disclose—during the course of discovery. Dkt. 139.
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`This discovery revealed, among other things, that Apple failed to disclose that (1) in 2011 CorFire
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`met with Apple to pitch and present its mobile wallet secure element technology to Apple’s
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`engineers and product managers and (2) Apple hired
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` CorFire’s former m-
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`Commerce Global Product & New Business Development Manager. Id. at 6-7. After considering
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`the arguments by the parties, the Court ultimately decided that Fintiv had not shown “good cause”
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`to add a claim for willful infringement. Importantly, the Court did not make a finding that the
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`facts Fintiv sought to add were not credible or that Fintiv could not prove Apple had pre-suit
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`knowledge of the Patent-in-Suit, including to support Fintiv’s indirect infringement claims.
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`Instead, the Court’s ruling was based on the late addition of a new cause of action and the Court’s
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`opinion on Fintiv’s ability to prove that specific cause of action, willful infringement, with such
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`facts. Ex. 1,1 9/1/20 Tr. at 96:12-97:11.1.
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`Since the conclusion of the September 1, 2020 hearing on Fintiv’s motion for leave, Fintiv
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`continued diligently searching for evidence of third-party CorFire’s meetings and pre-suit
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`communications with Apple. After devoting numerous hours to this effort, with little success,
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`1 “Ex. ___” refers to exhibits to the Declaration of Jonathan K. Waldrop (“Waldrop Decl.”), filed
`contemporaneously herewith.
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`2
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`Case 1:21-cv-00896-ADA Document 435 Filed 06/13/22 Page 3 of 13
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`Fintiv finally uncovered several expense reimbursement reports (“T&E Reports”) evidencing
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`multiple meetings between CorFire and Apple in 2011 and 2012 – almost three years before Apple
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`Pay launched in September 2014. Those meetings included: (1) a March 17, 2011 meeting
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`between CorFire’s
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` and Apple’s
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` (2) a July 4, 2011 meeting between
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` and Apple’s
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` (3)
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`a July 25, 2011 meeting between
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` (4) an October 4, 2011 meeting between
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` and (5) a January 31, 2012 meeting between CorFire’s
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` and Apple at Apple’s headquarters in Silicon Valley. Exs. 2-6.
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`Eubank, who at the time was CorFire’s Vice President of Channel Sales, recalled the
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`January 31, 2012 meeting at Apple’s headquarters in Cupertino, California, and specifically
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`recalled sharing CorFire’s mobile wallet technology, including a presentation about key aspects of
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`its patented technologies, in an effort to partner with Apple in launching a mobile wallet.
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`Declaration of George Eubank (“Eubank Decl.”), ¶ 6. Eubank specifically recalled making a
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`presentation to Apple concerning CorFire’s products and services, including CorPay (CorFire’s
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`mobile wallet technology) and its secure element chip and widget technologies for mobile wallets,
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`and although he no longer has a copy of the specific written presentation shared with Apple, Fintiv
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`was able to locate a presentation that Eubank confirmed was substantially similar to the one
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`presented to Apple, a copy of which is attached to his Declaration submitted herewith. Eubank
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`Decl., ¶ 7.
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`As evidenced in the newly discovered T&E Reports, CorFire’s
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` attended all
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`five in-person meetings with Apple in 2011 and 2012. Exs. 2-6. At the time,
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` CorFire’s
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`Senior Vice President, Europe & Merchant Accounts. Ex. 7.
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` left CorFire in 2014, and
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`since 2015, he has been Apple’s Director of Apple Pay & Wallet Product Management. Id.
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`3
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`Case 1:21-cv-00896-ADA Document 435 Filed 06/13/22 Page 4 of 13
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`Throughout this litigation, Apple failed to disclose, in response to Fintiv’s discovery
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`requests, these highly relevant and material facts about its repeated communications with CorFire
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`and its hiring of
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` (among other former CorFire employees)—facts that were undisputably
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`in Apple’s possession.2 For example, on March 20, 2020, Fintiv served Interrogatory No. 15
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`requiring Apple to “[i]dentify the Date(s) when Apple became first aware of the Asserted Patent,
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`the Related Patents, and the Related Patent Applications.” Ex. 9. In its response,
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` Ex. 10.
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`In fact, however, the newly discovered evidence reveals that Apple learned of at least key aspects
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`of the patented technology years before this lawsuit was filed. Similarly, on June 22, 2020, Fintiv
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`served Interrogatory No. 27 requesting that Apple “[d]escribe Your communications with SK
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`C&C and Your knowledge of SK C&C’s intellectual property (e.g., the Patent-in-Suit) prior
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`to this Action, including but not limited to, when you first communicated with SK C&C’s former
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`employee Jason Miller, the circumstances surrounding Your hiring of Mr. Miller from SK C&C,
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`why You decided to hire Mr. Miller, what Mr. Miller has worked on and continues to work on
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`during his employment at Apple, and whether Mr. Miller had knowledge of SK C&C’s intellectual
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`property, including the Patent-in-Suit.” Ex. 11 (emphasis added). Apple’s response to this
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`interrogatory
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`2 The newly discovered evidence not only strongly supports Fintiv’s willful infringement claim,
`but also refutes Apple’s pending motion for judgment on the pleadings as to pre-suit indirect
`infringement and requires reconsideration of the Court’s decision granting in part motion in limine
`no. 2
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` Ex. 8, 9/24/21 Pretrial Conference Tr. at 51:1-10, 51:24-52:3, 52:18-24.
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`4
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` Ex. 12. Apple’s response
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` Id.
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`Apple’s concealment was not limited to interrogatory responses, but included its document
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`production as well. On March 23, 2020 and July 24, 2020, Fintiv served on Apple its second and
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`third sets of Requests for Production of Documents, respectively, seeking: “All Documents
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`referring to or mentioning SK C&C, its affiliates, related entities, and all other persons acting on
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`its behalf;” “All Documents referring to or mentioning Mozido Corfire – Korea, Ltd., its
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`affiliates, related entities, and all other persons acting on its behalf”; and “All Documents reflecting
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`Your communications with Fintiv and its predecessors, including but not limited to Mozido,
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`Inc. and SK C&C, prior to December 21, 2018, including for example those through Messrs.
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`Parker, Nazir, and Ewing regarding the Patent-in-Suit, Related Patents, Related Patent
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`Applications, Accused Technology, and/or Wallet Cards, and Your knowledge of SK C&C’s
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`intellectual property (e.g., the Patent-in-Suit)….” Ex. 13, p. 9, Nos. 40-41 (emphasis added); Ex.
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`14, p. 9, No. 64 (emphasis added). Apple never produced a single document responsive to these
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`Requests, and, given the new evidence, it strains credulity, to say the least, that no such documents
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`exist.3 In fact, to take just one example, Apple unquestionably has documents concerning its
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`the former CorFire employee who attended all five meetings between CorFire
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`3 At least one written presentation discussing CorFire’s patented mobile wallet technology was
`shared at the January 31, 2012 meeting. Eubank Decl., ¶ 7.
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`5
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`Case 1:21-cv-00896-ADA Document 435 Filed 06/13/22 Page 6 of 13
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`and Apple when CorFire’s mobile wallet technology was discussed—and who is now in charge of
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`Apple Pay and Apple Wallet.
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`Apple served Initial Disclosures on November 14, 2019, and Supplemental Initial
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`Disclosures on February 27, 2020, July 27, 2020, September 24, 2020, and June 23, 2021. Exs.
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`15-19. Despite supplementing its initial disclosures four times, Apple again failed to disclose as a
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`person with knowledge
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`did disclose
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` Apple
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` Ex. 19. Apple, however, failed to
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`disclose that
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` had attended the March 17, 2011, July 4, 2011, July 25, 2011, and October 4,
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`2011 meetings with CorFire on behalf of Apple, that
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` has relevant information regarding
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`these meetings, or even that the meetings ever occurred. Exs. 2-6.
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`ARGUMENT
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`The Trial Should be Continued to Allow for Reopening of Discovery
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`As shown above, the newly discovered evidence shows that during discovery Apple
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`concealed the fact that it had five meetings with Fintiv’s predecessor CorFire, obtained CorFire
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`documents about the technology three years before Apple Pay launched with all the key
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`functionalities described in the CorFire presentation, and even hired CorFire employees who had
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`attended those meetings. Despite Fintiv’s diligence (diligence this Court acknowledged at the
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`September 1, 2020 hearing), Fintiv did not discover any of this evidence until very recently and
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`was unable to produce the evidence in response to Apple’s repeated discovery requests for
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`information Apple itself already had concerning these matters – which plainly gave Apple the
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`confidence to continue concealing them.
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`As a matter of fundamental fairness, and to prevent Apple from profiting from its repeated
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`discovery violations, Apple should be ordered to produce all documents related to these matters,
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`including but not limited to the newly discovered meetings, and to produce for deposition
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`and any other witnesses who have knowledge of the meetings. See e.g., Sw. Refrigerated
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`Warehousing 2017 WL 8777365, at *1; Garcia v. Woman’s Hosp. of Texas, 97 F.3d 810 (5th Cir.
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`1996); Garcia, 97 F.3d at 814.
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`The requested relief here is critical because Apple’s concealment hamstrung Fintiv in
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`obtaining highly relevant, if not dispositive, evidence concerning at least infringement, non-
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`obviousness, credibility of witnesses, damages, and potentially willful infringement. The Apple-
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`CorFire meetings, CorFire’s presentation to Apple about key aspects of the patented technology,
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`and the 2010 pending patent application describing that technology constitute powerful evidence
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`of at least copying and willful infringement. See, e.g., KAIST IP US LLC v. Samsung Elecs. Co.,
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`439 F. Supp. 3d 860, 884–85 (E.D. Tex. 2020) (upholding jury’s finding of willful infringement
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`based on presentations by inventor to infringer, infringer’s knowledge that inventor had filed a
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`patent application, and inventor’s license offer to infringer prior to infringer’s development of the
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`accused product); Liqwd, Inc. v. L’Oreal USA, Inc., 941 F.3d 1133, 1138-39 (Fed. Cir. 2019)
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`(copying can be shown by having access to the invention and evidence of copying efforts, even
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`without evidence that a specific patented product was copied); i4i Ltd. P'ship v. Microsoft Corp.,
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`598 F.3d 831, 860 (Fed. Cir. 2010), aff'd, 564 U.S. 91 (2011) (plaintiff presented sufficient
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`evidence at trial to prove willful infringement where, inter alia, infringer reviewed plaintiff’s
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`materials and attended its presentation of the software, which practiced the technology described
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`in the asserted patent). This is particularly so given that Apple subsequently hired at least two
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`CorFire employees
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`, and suppressed the evidence of the five pre-launch Apple-
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`CorFire meetings during discovery. See Avocent Huntsville, LLC v. ZPE Systems, Inc., 2018 WL
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`1411100, at *22 (N.D. Cal. 2018) (denying dismissal of willful infringement claim where accused
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`infringer employed patentee’s former employees); Imperium IP Holdings (Cayman), Ltd. v.
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`Samsung Elecs. Co., No. 4:14-CV-00371, 2017 WL 1716788, at *3 (E.D. Tex. Apr. 27, 2017)
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`(defendants’ material misrepresentations in their interrogatory responses and during trial regarding
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`infringement and willfulness, and failure to produce relevant documents until trial, were
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`sufficiently egregious to warrant enhanced damages).
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`Moreover, Rule 16(b) of the Federal Rules of Civil Procedure provides that a scheduling
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`order may be modified “for good cause and with the judge’s consent.” Fahim v. Marriott Hotel
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`Servs., Inc., 551 F.3d 344, 348 (5th Cir. 2008) (internal quotation marks omitted). The factors
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`guiding the “good cause” determination include: “(1) the party’s explanation; (2) the importance
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`of the requested relief; (3) potential prejudice in granting the relief; and (4) the availability of a
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`continuance to cure such prejudice.” Green Hills Dev. Co. v. Credit Union Liquidity Servs., LLC,
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`3:11-CV-1885-P, 2013 WL 12126783, at *2 (N.D. Tex. May 14, 2013); see Sapp v. Mem’l
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`Hermann Healthcare Sys., 406 Fed. Appx. 866, 869 (5th Cir. 2010) (per curiam) (“no single factor
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`is dispositive, nor must all the factors be present”). A motion for continuance should be granted
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`if a party discovers new information or the opposing side failed to produce documents. See Sw.
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`Refrigerated Warehousing Servs. Joint Venture v. M.A. & Sons, Inc., No. EP-16-CV-00421-DCG,
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`2017 WL 8777365, at *1 (W.D. Tex. Dec. 20, 2017) (granting motion for continuance where a
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`party discovered new information and opposing party failed to turn over requested documents);
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`see also Advanced Display Systems, Inc. v. Kent State Univ., 212 F.3d 1272, 1284-86 (Fed. Cir.
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`2000) (applying Fifth Circuit law and reversing denial of new trial where a party “deliberately and
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`intentionally withheld” key evidence pertaining to the issue of obviousness).
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`Here, the explanation for and importance of the requested relief are plain, and Apple should
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`not be heard to assert any prejudice because the requested relief is necessitated by its own wrongful
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`conduct and evidence suppression. In any event, there is no prejudice to Apple because granting
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`the relief will not change the status quo of Apple’s continuous infringement without paying
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`Fintiv’s reasonable royalty.
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`Fintiv Should be Granted Leave to Amend its Complaint to Allege Claims
`Uncovered During Discovery
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`As discussed above, discovery related to meetings between the parties in which Fintiv or
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`its predecessors discussed key aspects of CorFire’s patented, innovative technology is relevant to
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`numerous issues in this case, including the relationship between the parties, copying, indirect
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`infringement, willful infringement, witness credibility, and trade secret misappropriation.
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`Accordingly, Fintiv should be granted leave to amend its complaint to the extent discovery reveals
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`any new claims. New information learned during discovery provides good cause to amend under
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`Rule 16. See, e.g., H&R Block Tax Servs., Inc. v. Jackson Hewitt Tax Serv., Inc., No. 6:08CV37,
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`2008 WL 11265109, at *3 (E.D. Tex. Dec. 23, 2008) (granting motion for leave when plaintiff did
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`not discover “significant details” until after the deadline); Cornell Univ. v. Illumina, Inc., No. 10-
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`433-LPS-MPT, 2016 WL 3046258, at *5 (D. Del. May 27, 2016) (finding good cause met where
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`the party’s new allegations were based on “a new set of facts obtained and confirmed during
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`discovery which took place after the Scheduling Order’s deadline for amending pleadings”); Sprint
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`Comms. Co., L.P. v. Time Warner Cable, Inc., No. 11–2686–JWL, 2013 WL 6589564, *2 (D. Kan.
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`2013) (granting patentee leave to amend to add a claim of willful infringement, even though leave
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`was sought four months after the deadline to amend pleadings, where patentee showed that before
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`the deadline the accused infringer had denied all pre-suit knowledge of the patent). Apple, at best,
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`Case 1:21-cv-00896-ADA Document 435 Filed 06/13/22 Page 10 of 13
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`negligently failed to discover and disclose this information earlier, and at worst, knowingly and
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`willfully ignored its discovery obligations. See, e.g., Pears v. Mobile County, 645 F. Supp. 2d
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`1062, 1085-86 (S.D. Ala. 2009) (holding that where defendant carefully worded its discovery
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`responses and pleadings to mislead plaintiff, the behavior constituted good cause to allow plaintiff
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`to amend his pleadings after the amendment deadline). Indeed, a failure to grant Fintiv leave to
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`amend would prevent Fintiv from presenting a full infringement case and would require Fintiv to
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`go to trial on an incomplete record. See LBS Innovations, LLC v. Aaron Bros., Inc., No. 2:11-CV-
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`142, 2012 WL 12897919, at *2 (E.D. Tex. Nov. 9, 2012) (amendment should be allowed when
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`“disallowing [it] would deprive Plaintiff of a plausible theory” for relief “and substantive review
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`of the issues”). Here too, Apple should not be permitted to profit from failing to timely provide
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`complete discovery of information in its possession.
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` Monetary Sanctions are Warranted
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`Based on the above conduct, Fintiv requests monetary sanctions against Apple to cover
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`Fintiv’s costs for: (1) preparing and filing this motion; (2) cancelling trial accommodations;
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`(3) litigating motions now mooted or requiring reconsideration; and (4) any other costs the Court
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`deems just. Fed. R. Civ. P. 37(c)(1)(A) (authorizing the court to order payment of the reasonable
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`expenses and attorney’s fees caused by the failure to disclose a witness).
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` CONCLUSION
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`For the foregoing reasons, Fintiv respectfully requests the Court reopen discovery for the
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`limited purpose of obtaining documents and depositions from Apple about the 2011 and 2012
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`Apple-CorFire meetings, continue the currently-scheduled June 21, 2022 trial to a date two weeks
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`after the completion of such discovery, allow Fintiv to supplement its pretrial disclosures,
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`including witness and exhibits lists, as appropriate, and award monetary sanctions.
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`Dated: June 6, 2022
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`RESPECTFULLY SUBMITTED,
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`By: /s/ Jonathan K. Waldrop
`Jonathan K. Waldrop (CA Bar No. 297903)
`(Admitted in this District)
`jwaldrop@kasowitz.com
`Darcy L. Jones (CA Bar No. 309474)
`(Admitted in this District)
`djones@kasowitz.com
`Marcus A. Barber (CA Bar No. 307361)
`(Admitted in this District)
`mbarber@kasowitz.com
`John W. Downing (CA Bar No. 252850)
`(Admitted in this District)
`jdowning@kasowitz.com
`Heather S. Kim (CA Bar No. 277686)
`(Admitted in this District)
`hkim@kasowitz.com
`ThucMinh Nguyen (CA Bar No. 304382)
`(Admitted pro hac vice)
`tnguyen@kasowitz.com
`Chen Jia (CA Bar No. 281470)
`(Admitted in this District)
`cjia@kasowitz.com
`KASOWITZ BENSON TORRES LLP
`333 Twin Dolphin Drive, Suite 200
`Redwood Shores, California 94065
`Telephone: (650) 453-5170
`Facsimile: (650) 453-5171
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`Paul G. Williams (GA Bar No. 764925)
`(Admitted in this District)
`pwilliams@kasowitz.com
`KASOWITZ BENSON TORRES LLP
`1230 Peachtree Street N.E., Suite 2445
`Atlanta, Georgia 30309
`Telephone: (404) 260-6080
`Facsimile: (404) 260-6081
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`Marc E. Kasowitz (NY Bar No. 1309871
`(Admitted pro hac vice)
`mkasowitz@kasowitz.com
`Shelley Ivan (NY Bar No. 4338067)
`(Admitted pro hac vice)
`sivan@kasowitz.com
`KASOWITZ BENSON TORRES LLP
`1633 Broadway
`New York, NY 10019
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`Case 1:21-cv-00896-ADA Document 435 Filed 06/13/22 Page 12 of 13
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`Telephone: (212) 506-1700
`Facsimile: (212) 506-1800
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`George Philip Cowden (TX Bar No. 24071492)
`george@cowdenlawfirm.com
`THE COWDEN LAW FIRM, PLLC
`110 N. College Ave., Suite 1010
`Tyler, TX 75702
`Telephone: (903) 201-3650
`Facsimile: (903) 201-3651
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`Craig D. Cherry (TX Bar No. 24012419)
`craig@swclaw.com
`Justin W. Allen (TX Bar No. 24081977)
`justin@swclaw.com
`STECKLER WAYNE CHERRY & LOVE
`PLLC
`8416 Old McGregor Rd.
`Waco, Texas 76712
`Telephone: (254) 651-3690
`Facsimile: (254) 651-3689
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`Raymond W Mort, III (TX Bar No. 00791308)
`raymort@austinlaw.com
`THE MORT LAW FIRM, PLLC
`100 Congress Ave, Suite 2000
`Austin, TX 78701
`Telephone: (512) 865-7950
`Facsimile: (512) 865-7950
`Attorneys for Plaintiff
`FINTIV, INC.
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`CERTIFICATE OF SERVICE
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`I certify that a true and correct copy of the foregoing instrument was served or delivered
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`electronically to all counsel of record via U.S. District Court [LIVE] — Document Filing System
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`to all counsel of record on this 6th day of June, 2022.
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`/s/ Jonathan K. Waldrop
`Jonathan K. Waldrop
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