Case 1:19-cv-01334-CJB Document 710 Filed 03/11/24 Page 1 of 5 PageID #: 18015
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`Plaintiffs,
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`Defendants.
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`JURY TRIAL DEMANDED
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`C.A. No. 19-1334 (CJB)
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`MIDWEST ENERGY EMISSIONS
`CORP. and MES Inc.,
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`ARTHUR J. GALLAGHER & CO., et al.,
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`v.
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`STIPULATION AND [PROPOSED] ORDER REGARDING SUMMARY JUDGMENT
`THAT THE VISTRA AND NRG LICENSES DO NOT PRECLUDE LIABILITY BASED
`ON PRE-EXECUTION ACTIVITIES
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`The parties submit this stipulation and attached order in response to the Court’s order that
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`the parties submit a proposed stipulated summary judgment in favor of Plaintiffs with regard to
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`Defendants’ defense of express license. D.I. 696.
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`On March 23, 2023, the CERT Defendants moved for summary judgment on various
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`issues, including summary judgment that certain Defendants were not liable for indirect
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`infringement with respect to activities at any power plant owned by Vistra or NRG. Specifically,
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`the CERT Defendants argued that Defendant Bascobert (A) Holdings, which sold Refined Coal to
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`Vistra plants, and Defendants Rutledge, Senescence, and Spring Hill, which sold Refined Coal to
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`NRG plants, could not be found liable for indirect infringement based on any activities at Vistra
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`or NRG plants, both before and after the effective date. See D.I. 527 (omnibus motion for summary
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`judgment); D.I. 528 (brief in support of motion for summary judgment; D.I. 563 (denoting motion
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`for summary judgment of no infringement based on licensed uses as Summary Judgment Motion
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`No. 1).
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`On October 13, 2023, the Court denied Defendants’ motion for summary judgment. D.I.
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`1
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`Case 1:19-cv-01334-CJB Document 710 Filed 03/11/24 Page 2 of 5 PageID #: 18016
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`586; D.I. 587. Interpreting the agreements, the Court determined as a matter of law that ME2C
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`preserved the right to pursue claims for indirect infringement claims predating the Effective Dates
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`of the agreements against refined coal entities that operated at Vistra and NRG power plants. D.I.
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`586 at 9–10. Because Plaintiffs affirmed they did not intend to press claims regarding provision
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`of refined coal to a license power plant after the Effective Dates of the agreements, when the
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`licenses went in to effect, the Court denied that aspect of the Defendants’ motion for summary
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`judgment as moot. Id. at 6.
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`Reserving all rights to appeal the Court’s legal determination that the Vistra and NRG
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`agreements preserved ME2C’s right to pursue indirect infringement claims predating the Effective
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`Dates of the agreements against refined coal entities that operated at Vistra and NRG power plants
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`and for the purpose of resolving that issue into a form proper for appeal, the CERT Defendants
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`stipulate that based on the Court’s interpretation of the Vistra and NRG agreements as a matter of
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`law, Plaintiffs are entitled to summary judgment that the Vistra and NRG agreements do not
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`preclude liability for Defendants Bascobert (A) Holdings, Rutledge, Senescence, and Spring Hill
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`for indirect infringement based on any activities at Vistra or NRG plants before the Effective Dates
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`of the respective agreements.
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`Consistent with the Court’s order directing the parties’ to submit a stipulated summary
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`judgment in Plaintiffs’ favor on this issue, D.I. 696, and with the Court’s interpretation of the
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`Vistra and NRG agreements as a matter of law, D.I. 586, the parties hereby stipulate to entry of
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`summary judgment in favor of Plaintiffs with regard to Defendants’ defense of express license
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`regarding Plaintiffs’ claims of indirect infringement based on any activities at Vistra or NRG plants
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`before the Effective Dates of the respective agreements.
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`2
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`Case 1:19-cv-01334-CJB Document 710 Filed 03/11/24 Page 3 of 5 PageID #: 18017
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`Dated: March 11, 2024
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`DEVLIN LAW FIRM LLC
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` /s/ James M. Lennon
`James M. Lennon (#4570)
`Peter Akawie Mazur (#6732)
`1526 Gilpin Avenue
`Wilmington, DE 19806
`(302) 449-9010
`jlennon@devlinlawfirm.com
`pmazur@devlinlawfirm.com
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`Attorneys for Plaintiffs
`Midwest Energy Emissions Corp. and
`MES Inc.
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`MORRIS JAMES LLP
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` /s/ Kenneth L. Dorsney
`Kenneth L. Dorsney (#3726)
`Cortlan S. Hitch (#6720)
`500 Delaware Avenue, Suite 1500
`Wilmington, DE 19801-1494
`(302) 888-6800
`kdorsney@morrisjames.com
`chitch@morrisjames.com
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`Attorneys for Defendants
`Bascobert (A) Holdings LLC
`Buffington Partners LLC
`CERT Operations II LLC
`CERT Operations IV LLC
`CERT Operations RCB LLC
`CERT Operations V LLC
`Cottbus Associates LLC
`Larkwood Energy LLC
`Marquis Industrial Company, LLC
`Rutledge Products LLC
`Senescence Energy Products LLC
`Springhill Resources LLC
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`3
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`Case 1:19-cv-01334-CJB Document 710 Filed 03/11/24 Page 4 of 5 PageID #: 18018
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`Plaintiffs,
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`Defendants.
`
`
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`JURY TRIAL DEMANDED
`
`
`C.A. No. 19-1334 (CJB)
`
`
`
`
`MIDWEST ENERGY EMISSIONS
`CORP. and MES Inc.,
`
`
`
`
`
`ARTHUR J. GALLAGHER & CO., et al.,
`
`
`
`
`
`
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`
`
`
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`v.
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`[PROPOSED] ORDER AND OPINION GRANTING PLAINTIFF’S MOTION FOR
`SUMMARY JUDGMENT THAT THE VISTRA AND NRG LICENSES DO NOT
`PRECLUDE LIABILITY BASED ON PRE-EXECUTION ACTIVITIES
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` On March 6, 2024, the Court ordered that the parties submit a proposed stipulated
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`summary judgment in favor of Plaintiffs with regard to Defendants’ defense of express license.
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`D.I. 696.
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`On March 11, 2024, the parties submitted a stipulation and proposed order in accordance
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`with that order.
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`Specifically, reserving all rights to appeal the Court’s legal determination that the Vistra
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`and NRG agreements preserved ME2C’s right to pursue indirect infringement claims predating
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`the Effective Dates of the respective agreements against refined coal entities that operated at Vistra
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`and NRG power plants, D.I. 586, the CERT Defendants stipulated that based on the Court’s
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`interpretation of the Vistra and NRG agreements as a matter of law, Plaintiffs are entitled to
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`summary judgment that the Vistra and NRG agreements do not preclude liability for Defendants
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`Bascobert (A) Holdings, Rutledge, Senescence, and Spring Hill for indirect infringement based on
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`any activities at Vistra or NRG plants predating the Effective Dates of the respective agreements.
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`1
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`Case 1:19-cv-01334-CJB Document 710 Filed 03/11/24 Page 5 of 5 PageID #: 18019
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`Consistent with the Court’s order directing the parties’ to submit a stipulated summary
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`judgment in Plaintiffs’ favor on this issue, D.I. 696, and with the Court’s interpretation of the
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`Vistra and NRG agreements as a matter of law, D.I. 586, the parties hereby stipulate to entry of
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`summary judgment in favor of Plaintiffs with regard to Defendants’ defense of express license.
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`In D.I. 586, the Court interpreted the Vistra and NRG licenses. The Court reiterates and
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`incorporates that analysis here. Based on the Court’s interpretation of the Vistra and NRG licenses
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`as a matter of law, the Court finds that Plaintiffs are entitled to summary judgment that the Vistra
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`and NRG agreements do not preclude liability for Defendants Bascobert (A) Holdings, Rutledge,
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`Senescence, and Spring Hill for indirect infringement based on any activities at Vistra or NRG
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`plants predating the Effective Dates of the respective agreements. Summary judgment is therefore
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`entered against Defendants on their express license defense regarding Plaintiffs’ claims of indirect
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`infringement based on any activities at Vistra or NRG plants before the Effective Dates of the
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`respective agreements.
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`S O O R D E R E D , this ___________ day of _______, 2024.
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`______________________________________________
`UNITED STATES MAGISTRATE JUDGE
`DISTRICT OF DELAWARE
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`2
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