Case 3:17-cv-00348-HES-MCR Document 107 Filed 08/17/18 Page 1 of 17 PageID 2823
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`UNITED STATES DISTRICT COURT
`MIDDLE DISTRICT OF FLORIDA
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`JACKSONVILLE DIVISION
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`CASE NO. 3:17-00348-CIV-HES/MCR
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`Plaintiff,
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`BENJAMIN MICHAEL DUBAY,
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`vs.
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`STEPHEN KING; MEDIA RIGHTS
`CAPITAL; IMAGINE
`ENTERTAINMENT; SONY
`PICTURES ENTERTAINMENT;
`MARVEL ENTERTAINMENT;
`SIMON & SCHUSTER,
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`Defendants.
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`__________________________________
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`DEFENDANTS’ OPPOSITION TO PLAINTIFF’S
`MOTION FOR PARTIAL SUMMARY JUDGMENT
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`42635.docx
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`Case 3:17-cv-00348-HES-MCR Document 107 Filed 08/17/18 Page 2 of 17 PageID 2824
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`TABLE OF CONTENTS
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`Page
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`PRELIMINARY STATEMENT .........................................................................................1
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`A.
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`The Central Concept of Plaintiff’s Motion is Chain of Title ...................................1
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`B.
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`Plaintiff’s Complaint and Interrogatory Responses Claim a Different
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`Chain of Title From the Motion ...............................................................................5
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`C.
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`The Motion’s Chain of Title is Erroneous ...............................................................7
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`D.
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`The Most Likely Chain of Title for the Pre-1978 Rook Work Copyright
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`Leads to a Non-Party LLC .......................................................................................9
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`E.
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`Even if the Forged 1986 “Assignment” From Warren to WBD Had Been
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`Genuine, There Would Still Be a Defective Chain of Title. ..................................12
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`F.
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`Conclusion .............................................................................................................13
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`42635.docx
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`FEDERAL CASES
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`TABLE OF AUTHORITIES
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`Page(s)
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`16 Casa Duse, LLC v. Merkin
`791 F.3d 247 (2nd Cir. 2015) ......................................................................................................4
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`Aalmuhammed v. Lee
`202 F.3d 1227 (9th Cir. 2000) ....................................................................................................5
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`Community For Creative Non–Violence v. Reid
`490 U.S. 730, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989) ......................................................5, 10
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`Fleischer Studios, Inc. v. AVELA, Inc.
`654 F.3d 958 (9th Cir. 2011) ..................................................................................................2, 3
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`Fritz v. Arthur D. Little, Inc.
`944 F.Supp. 95 (D.Mass. 1996) .................................................................................................4
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`Garcia v. Google, Inc.
`786 F.3d 733 (9th Cir. 2015) ......................................................................................................4
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`Int'l Media Films, Inc. v. Lucas Entertainment Inc.
`703 F.Supp.2d 456 (S.D.N.Y.2010)...........................................................................................2
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`Kenbrooke Fabrics, Inc. v. Soho Fashions, Inc.
`No. 87 Civ. 5775, 1989 WL 117704 (S.D.N.Y. Oct. 2, 1989) ..................................................2
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`Klinger v. Conan Doyle Estate, Ltd.
`755 F.3d 496 (7th Cir. 2004) ......................................................................................................3
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`Montgomery v. Noga
`168 F.3d 1282,1289 (11th Cir. 1999) ........................................................................................2
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`Murray v. Gelderman
`566 F.2d 1307 (5th Cir.1978) ..................................................................................................10
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`Neva, Inc. v. Christian Duplications, Intl., Inc.
`743 F.Supp. 1533 (MD Fla 1990) ............................................................................................10
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`Olson v. Nat’l Broad. Co.
`855 F.2d 1446 (9th Cir. 1988) ....................................................................................................3
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`Rice v. Fox Broad. Co.
`330 F.3d 1170 (9th Cir. 2003) ....................................................................................................3
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`i
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`Case 3:17-cv-00348-HES-MCR Document 107 Filed 08/17/18 Page 4 of 17 PageID 2826
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`Rogers v. Koons
`960 F.2d 301 (2d Cir.1992)........................................................................................................2
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`Thomson v. Larson
`147 F.3d 195 (2d Cir. 1998).......................................................................................................5
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`Yardley v. Houghton Mifflin Co.
`108 F.2d 28 (2d Cir.1939), cert. denied, 309 U.S. 686, 60 S.Ct. 891, 84 L.Ed. 1029
`(1940) .......................................................................................................................................10
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`FEDERAL STATUTES
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`1909 Copyright Act, 17 U.S.C. §1 (repealed 1976).........................................................................4
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`1909 Copyright Act, 17 U.S.C. §3 (repealed 1976).........................................................................3
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`17 U.S.C. §102 .............................................................................................................................4, 8
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`17 U.S.C. §410 .............................................................................................................................2, 9
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`17 U.S.C. §411 .................................................................................................................................8
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`STATE STATUTES
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`Oregon Rev. Stat. 84.007 .........................................................................................................12, 13
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`TREATISES
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`3 M. & D. Nimmer, Nimmer on Copyright,
`§7.02[c][2] .................................................................................................................................4
`§7.16[A][[2][b], and 7.16[A][2][c][i] ........................................................................................4
`§12.11[C] (2018)........................................................................................................................2
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`ii
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`Defendants Stephen King (“King”), MRC II Distribution Company L.P. (“MRC”)
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`(erroneously sued herein as “Media Rights Capital”), Imagine Entertainment (“Imagine”),
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`Marvel Entertainment (“Marvel”), Simon & Schuster, Inc. (“S&S”), and Sony Pictures
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`Entertainment (“SPE”) hereby file their Opposition to Plaintiff’s Motion for Partial Summary
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`Judgment.
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`PRELIMINARY STATEMENT
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`As nothing in the copyright registration attached to the Amended Complaint evidences
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`plaintiff’s right to claim through Warren Publishing Company (“WPC”), the original copyright
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`claimant, plaintiff has the burden proving a valid chain of title. He has failed to meet that burden
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`here. To be clear, plaintiff’s motion is devoid of admissible proof that:
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` The Rook that appeared in EERIE 82 was delineated to the extent necessary to
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`warrant standalone copyright protection; and
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` Even if it was, that anyone other than WPC, an entity from which plaintiff no
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`longer claims his copyright ownership claim originates, actually owned the
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`character of the Rook as he appeared in EERIE 82. WPC is not a litigant.
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`Discovery has shown that the purported 1986 assignment from James Warren to William
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`DuBay -- the linchpin of plaintiff’s original and Amended Complaint—was forged. Plaintiff’s
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`new chain of title theory starts with William B. DuBay’s purported ownership of unprotectible,
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`unfixed ideas, and preliminary draft works that defendants could not have had access to, cannot
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`save him from this fact. Plaintiff does not now, and has not ever, owned the Rook from EERIE
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`82. His motion must be denied.
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`A.
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`The Central Concept of Plaintiff’s Motion is Chain of Title
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`Because Plaintiff did not author the work on which he bases his claim, Plaintiff’s motion
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`is dependent upon proving his ownership of the allegedly infringed work by establishing a valid
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`1
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`chain of title from the initial author. He has not done so. Indeed, the term “chain of title” is
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`absent from Plaintiff’s motion.
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`To have standing to make a claim of copyright infringement, the plaintiff must
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`demonstrate ownership of a valid copyright. Montgomery v. Noga, 168 F.3d 1282,1289 (11th
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`Cir. 1999). Under the Copyright Act, a certificate of registration in the name of a plaintiff
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`constitutes prima facie evidence of the plaintiff’s valid ownership of a copyright and of the facts
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`stated in the certificate. 17 U.S.C. §410(c); Eleventh Cir. Pattern Jury Instructions 9.4 (2017
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`rev.). See Rogers v. Koons, 960 F.2d 301, 306 (2d Cir.1992). An assignee of a valid copyright
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`who is not named on the registration as the owner has the additional burden of proving a valid
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`chain of title because nothing in the registration certificate evidences his right to claim through
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`the original copyright claimant. 3 M. & D. Nimmer, Nimmer on Copyright, § 12.11[C] (2018).
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`See Int'l Media Films, Inc. v. Lucas Entertainment Inc., 703 F.Supp.2d 456, 463 (S.D.N.Y.2010);
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`Kenbrooke Fabrics, Inc. v. Soho Fashions, Inc., No. 87 Civ. 5775, 1989 WL 117704, at *1
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`(S.D.N.Y. Oct. 2, 1989).
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`The leading case with respect to establishing chain of title in a cartoon character created
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`under the Copyright Act of 1909 is Fleischer Studios, Inc. v. AVELA, Inc., 654 F.3d 958 (9th Cir.
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`2011). There, in recognizing a copyright owner’s right to create a valid chain of title to the Betty
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`Boop character, the court relied upon §3 of the Copyright Act of 1909, which provided:
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`“The copyright provided by this title shall protect all the copyrightable components of
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`the work copyrighted, and all matter therein in which copyright is already subsisting,
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`but without extending the duration or scope of such copyright. The copyright upon
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`composite works or periodicals shall give to the proprietor thereof all the rights in
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`2
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`respect thereto which he would have had if each part were individually copyrighted
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`under this title.”
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`17 U.S.C. §3 (repealed). Id. at 961.
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`The court found that a character is a copyrightable component and noted that “characters
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`that are ‘especially distinctive’ or the ‘story being told’ receive protection apart from the
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`copyrighted work,” relying upon Rice v. Fox Broad. Co., 330 F.3d 1170, 1175-76 (9th Cir. 2003)
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`and Olson v. Nat’l Broad. Co., 855 F.2d 1446, 1452 (9th Cir. 1988). Since the parties had
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`conceded that Betty Boop was “especially distinctive,” it became a separate copyrightable
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`component of one of plaintiff’s 1930 films, and the court found that plaintiff, by virtue of its
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`copyright ownership, owned all rights in Betty Boop which it would have had if it had
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`individually copyrighted it. Id.
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`Pursuant to these principles, if The Rook as contained in the registered work EERIE 82
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`was especially distinctive, distinctively delineated, or the story being told, the copyright owner of
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`the comic in which it appeared would own rights in the character, but only as it then existed,
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`because ownership of copyright is constitutionally required to be for “limited times.” See U.S.
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`CONST., art. I, §8, cl. 8. Ownership of any character that appeared in EERIE 82 would not
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`include ownership in subsequent development of the character, so that when any character
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`appearing in EERIE 82 entered the public domain, it would not inject into the public domain
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`subsequent development of the character. See Klinger v. Conan Doyle Estate, Ltd., 755 F.3d 496
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`(7th Cir. 2004) (Sherlock Holmes character, as portrayed, enters public domain as each work
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`separately enters public domain).
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`Plaintiff’s theories of chain of title are erroneously founded upon the claim that, because
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`other persons beside William DuBay and Luis Bermejo participated in development discussions
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`leading to the creation of EERIE 82, those individuals became copyright owners of The Rook
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`character. To the extent those individuals created potentially copyrightable works such as
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`drawings, those works could have acquired federal copyright protection either by publication
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`with a notice attached, or by registration.1 But such works are not at issue in this case and the
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`people who may have created them are not thereby authors of The Rook, as registered in Reg.
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`No. B188968, the only copyright at issue. Contributions to a work will not give rise to a
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`copyright interest unless such contributions have at least three attributes: (1) they must be
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`original; (2) they must be works of authorship; and (3) they must be fixed in a tangible medium
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`of expression. 17 U.S.C. §102, U.S. CONST. art I., §8, cl. 8 (Congress may only protect
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`“Writings”). Thus, to the extent that Jim Stenstrum and Budd Lewis spoke words about what
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`should or should not be conceptual attributes of The Rook, no federal copyright was created
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`because words that are spoken aloud can be copied by all, since they have not been fixed in a
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`tangible medium of expression. See Fritz v. Arthur D. Little, Inc., 944 F.Supp. 95, 100 (D.Mass.
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`1996). Moreover, courts have gone to considerable lengths to avoid setting too low a bar for
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`defining works of authorship by rejecting the notion that all persons who provide “some minimal
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`level of creativity or originality” to the work would be deemed to be authors. The Ninth Circuit
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`pointed out that such a standard “would be too broad and indeterminate to be useful” and would
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`“fragment copyright protection” of creative projects. Garcia v. Google, Inc., 786 F.3d 733, 742
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`(9th Cir. 2015) (rejecting ownership claim by actor); 16 Casa Duse, LLC v. Merkin, 791 F.3d
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`247, 258 (2nd Cir. 2015) (rejecting ownership claim of film director and recognizing that granting
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`copyright interests of all creative contributors would “make swiss cheese of copyrights”);
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`1 The 1909 Copyright Act, 17 U.S.C. §1, et seq. (1976 repealed), was in effect through 1977 and
`governs these works. 2 Nimmer §7.02[c][2], 7.16[A][[2][b], and 7.16[A][2][c][i] (works created
`after 1977 acquired federal protection from the moment they were “fixed in a tangible medium
`of expression.” 17 U.S.C. §102(a)(1).
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`Aalmuhammed v. Lee, 202 F.3d 1227, 1236 (9th Cir. 2000) (rejecting ownership claim of film
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`consultant); Thomson v. Larson, 147 F.3d 195, 205 (2d Cir. 1998) (rejecting ownership claim of
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`play’s dramaturg).
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`Under the 1909 Act, the initial author and copyright owner could be an individual or an
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`employee for hire. Community For Creative Non–Violence v. Reid, 490 U.S. 730, 743-44, 109
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`S.Ct. 2166, 2175, 104 L.Ed.2d 811 (1989). None of the evidence put forward by Plaintiff shows
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`that anyone other than Luis Bermejo and William B. DuBay made tangibly fixed, independently
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`copyrightable contributions to EERIE 82, and none of the evidence put forward by Plaintiff
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`raises an issue concerning the proposition that The Rook published in EERIE 82 was authored at
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`the instance and expense of WPC.
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`The only component part of the copyright in EERIE 82 that plaintiff claims is at issue
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`before this court is ownership of the character The Rook. Plaintiff’s motion completely ignores
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`the underlying legal issue of whether the character The Rook, as published in EERIE 82, is
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`sufficiently delineated to warrant copyright protection. If it is not, Plaintiff’s motion must be
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`denied for that independent reason, as well.
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`B.
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`Plaintiff’s Complaint and Interrogatory Responses Claim a Different Chain
`of Title From the Motion
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`In the operative Amended Complaint (ECF 6) Plaintiff alleges that he “. . . is the legal
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`owner of the copyright for the work entitled The Rook, which is registered with the United States
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`Copyright Office in Registration No. B188968 with a registration date of February 4, 1977, and
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`an initial publication date of January 19, 1977.” Amd. Cplt. ¶21. The registration certificate
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`indicates that the registered work was the entirety of issue 82 of a March 1977 issue of a
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`magazine titled EERIE, published in January 1977. EERIE was a horror comic, and a review of
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`EERIE 82 shows that the cover and pages 5-24 of that 74 page issue were devoted to the
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`publication of a story called Man Whom Time Forgot, featuring the initial appearance of
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`character named The Rook. Exhibit 1. According to his Amended Complaint, ¶22, Plaintiff’s
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`ownership derives from his claim to be the successor to both William B. DuBay (hereafter
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`WBD) and to Warren Publishing Company (hereafter WPC).2
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`Plaintiff explained his chain of title on October 26, 2017, answering MRC Interrogatory
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`No. 9. Plaintiff has never amended this Interrogatory Response. The flow chart below
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`summarizes the Interrogatory Response, which is attached as Exhibit 2. A more readily legible
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`copy of the chart is attached as Exhibit 3.
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`2 The evidence is uncontradicted that WPC was James Warren’s sole proprietorship. Warren
`Dep. 16:4-17:5; 19:15-20:7; 51:13-54:17; 140:5-142:1.
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`This “chain of title” was undone on November 8, 2017, when James Warren explained at
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`his deposition that the purported 1986 assignment from him to WBD was forged. Warren Dep.
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`39:14-40:20, Ex. 9; 49:12-14. Warren pointed out that the 1986 purported assignment to WBD
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`could not possibly have been created in 1986 because Warren Publishing had been out of
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`business for almost four years as of 1986, and the secretary whose initials on the document
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`indicate that she purportedly typed the assignment in 1986, Elizabeth Alomar, had not worked
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`for Warren since the company collapsed years earlier. Warren Dep. 39:14-40:10.
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`C.
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`The Motion’s Chain of Title is Erroneous
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`Plaintiff’s motion now reverses course, and tries to sidestep the forged 1986 assignment
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`by disputing WPC’s ownership of the Rook through ownership of copyright registration
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`B188968. He now submits a quite different, and plainly wrong, chain of title, which Defendants
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`set forth in visual form in the chart below:
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`A more easily legible copy of this chart is attached as Exhibit 4.
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`Plaintiff’s first error is that, instead of starting with the ownership of the allegedly
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`infringed registered work that was fixed in a tangible medium of expression as EERIE 82, he
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`starts with unfixed concepts and an unregistered drawing. He points to discussions relating to
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`concept development and a preliminary drawing that he claims (without admissible evidence)
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`was created by WBD in 1976, and asserts that this concept development and unpublished work,
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`in conjunction with WBD’s collaboration with writers Jim Stenstrum and Budd Lewis ,
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`constituted those three individuals as the authors and owners of The Rook. Plf. Mem. at 5, ¶¶23,
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`25.3 This claim fails because concepts are not protectible by copyright, 17 U.S.C. §102 (b), and
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`because the preliminary 1976 work which is the sole evidence of prior creation was either
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`unfixed, or if it was fixed in tangible form, was never published or registered. The work whose
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`authorship is at issue in this case is the EERIE 82 work that was published in January 1977, and
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`deposited and registered at the Copyright Office by WPC later in 1977. The unpublished
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`unregistered work that plaintiff associates with an entity founded in March 1997 called Cartoon
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`Factory, and that he relies upon, is irrelevant, both because no infringement action can be based
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`upon an unregistered work, 17 U.S.C. §411(a), and because no defendant could plausibly be
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`alleged to have had access to such an unpublished work in order to make illicit copies. As
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`Plaintiff’s Amended Cpt. ¶¶21-22, and Notice to the Copyright Office, Exhibit 5 hereto, make
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`clear, the work that is at issue in this case is the EERIE 82 work deposited in the Copyright
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`3 There is no writing by which Jim Stenstrum transferred any rights in his 1976 work on The
`Rook (and no evidence he created B188968), and there is no evidence that Budd Lewis had any
`role in authoring B188968.
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`Office, which shows on its face that The Rook story, at 5-24, was written by WBD and drawn by
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`Luis Bermejo.4 See Ex. 1 at 5-24.
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`D.
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`The Most Likely Chain of Title for the Pre-1978 Rook Work Copyright
`Leads to a Non-Party LLC
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`Defendants believe that the following chain of title sets forth ownership of The Rook
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`component of copyright B188968:
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`The validity of the WPC claim to ownership of B188968 as of 1977 begins with the
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`presumption of the truth of the registration certificate’s statement that WPC was the author and
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`owner of the copyright. See 17 U.S.C. §410(c). That presumption is fortified by Warren’s
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`testimony that the registered work was prepared at his instance and expense. Warren Dep.
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`4 Plaintiff provides no evidence of a valid chain of title from Bermejo, nor does he provide a
`valid chain of title from WPC to him.
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`27:18-25. There need not have been a written work for hire agreement or an employment
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`relationship, because the work for hire doctrine of the Copyright Act of 1909 (applicable to
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`works such as this, created before January 1, 1978), provided that one (the hiring party) who
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`solicits another (the commissioned party) to create a work for pay is presumed to be the author
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`and copyright owner unless the express or implied terms of the contract between the parties
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`reserve the copyright to the commissioned party. Community For Creative Non–Violence v.
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`Reid, 490 U.S. 730, 743-44, 109 S.Ct. 2166, 2175, 104 L.Ed.2d 811 (1989); Murray v.
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`Gelderman, 566 F.2d 1307, 1309 (5th Cir.1978); Yardley v. Houghton Mifflin Co., 108 F.2d 28,
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`30–31 (2d Cir.1939), cert. denied, 309 U.S. 686, 60 S.Ct. 891, 84 L.Ed. 1029 (1940). “The
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`crucial element in this determination appears to be whether the work was created at the
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`employer’s insistence [sic] and expense, or, in other words, whether the motivating factor in
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`producing the work was the employer who induced its creation.” Murray v. Gelderman, 566 F.2d
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`1307, 1310 (5th Cir.1978); Neva, Inc. v. Christian Duplications, Intl., Inc. 743 F.Supp. 1533
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`(MD Fla 1990). EERIE 82 was created at the instance and expense of James Warren. Warren
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`Dep. 27:18-25.
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`Warren’s deposition testimony made it clear that his arrangement with William DuBay
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`regarding The Rook was that it was Warren who owned The Rook. Specifically, Warren told
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`WBD that if Warren were able in the future to get any revenue from licenses Warren would issue
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`for movie, television or subsidiary rights for The Rook, Warren would give WBD a piece of the
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`money from that exploitation, but there was never any specific agreement, so that the percentage
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`given to WBD would have been in the discretion of Warren. See Warren Dep. 48:17-49:11;
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`64:25-66:12.
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`At his deposition, Plaintiff explained his research concerning the circumstances of the
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`origination of The Rook. Plaintiff stated:
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`Q: And so, was the design of The Rook physically based upon cowboy molds from
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`Mattel?
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`A: Well, since I wasn’t party to the creation, I can’t say that. I can say that Mr. Warren
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`gave the instance to Mr. DuBay to create a character from this line, but he did not
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`suggest, at least according to this report and according to my conversations with Bill,
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`that he’d become a time-traveler or an adventure hero or anything along those lines.”
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`B. DuBay Dep. 67:3-11.
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`Plaintiff further stated:
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`Q: Do you know at whose instance and expense The Rook was created?
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`A: Well, according to The Making of a Super-Comic Book Hero, excuse me, the
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`instance was given by James Warren. And consistent with the invoice that I found
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`from James Warren’s attorney, that would suggest that he was responsible for the
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`expense. However, in a letter dated, I believe, in 1984 to Stanley Harris, Mr. DuBay
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`said that he was not paid for the creation, just paid his page rate. That’s just the
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`information I know.
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`Q: But he was paid for it?
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`A: He was paid his page rate for the stories, as he describes. Id. 105:16-24.
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`The 1979 article published in Warren Presents The Rook (a comic magazine whose
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`credits page shows that it was edited by WBD, Exhibit 6, at 2) entitled “The Making of a Super-
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`Comic Book Hero,” explains James Warren’s impresario role in instigating the creation of The
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`11
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`Case 3:17-cv-00348-HES-MCR Document 107 Filed 08/17/18 Page 16 of 17 PageID 2838
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`Rook. Under the instance and expense test, and pursuant to the presumption of correctness
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`attaching to the 1977 registration of EERIE 82, WPC was the owner of The Rook.
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`The correct version of chain of title relating to The Rook character shows that The Rook
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`works as portrayed in EERIE were assigned in 2007 by James Warren to New Comic Company,
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`Exhibit 7; Warren Dep. 147:16-150:5. New Comic Company in 2015 quitclaim transferred to
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`William B. DuBay, LLC its Rook rights. Exhibit 8. But William B. DuBay, LLC voluntarily
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`dismissed its claims when it withdrew from this suit (Compare Cpt., ECF 1, with Amd. Cpt.,
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`ECF 6 (William B. DuBay, LLC removed as plaintiff)), and in any case, no individuals ever
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`signed the operating agreement for the LLC, so the LLC has never had the legal capacity to
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`transfer whatever rights it has in The Rook to the remaining Plaintiff. Hart Dep. 25:7-27:4; D.
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`DuBay Dep. 17:24-19:10.5 Plaintiff does not own the copyright.
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`E.
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`Even if the Forged 1986 “Assignment” From Warren to WBD Had Been
`Genuine, There Would Still Be a Defective Chain of Title.
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`Plaintiff claims ownership directly from the late WBD, and the claim is based upon a
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`document attached to a January 8, 2010 email that purports to be electronically signed by WBD.
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`The cover email, Hart Dep. Ex. 31 (attached), expressly references the testamentary nature of the
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`transfer in characterizing Plaintiff as William B. DuBay’s “heir,” and the text of the purported
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`assignment expressly states that the transfer of 51 percent of whatever copyright WBD owned in
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`The Rook is only effective upon his death. As a result, the electronic signature is invalid,
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`because it is governed by Oregon Revised Statute 84.007(2)(a), which provides that federal
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`electronic signatures law validating electronic signatures does not apply to a transaction to the
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`5 The excerpts of the Venessa Hart deposition referenced herein are attached hereto as Exhibit 9;
`the excerpts of the Danielle DuBay deposition referenced herein are attached hereto as Exhibit
`10; the excerpts of the James Warren deposition referenced herein are attached hereto as Exhibit
`11; and the excerpts of the Benjamin DuBay deposition referenced herein are attached hereto as
`Exhibit 12.
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`12
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`Case 3:17-cv-00348-HES-MCR Document 107 Filed 08/17/18 Page 17 of 17 PageID 2839
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`extent it is governed by a law governing the creation and execution of wills, codicils, or
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`testamentary trusts.6 Since the transfer to Plaintiff was to be triggered by his uncle’s death, the
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`only entity that could transfer the decedent’s property would have been his estate. The document
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`is therefore testamentary, and the electronic signature would be invalid, even if WBD owned the
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`copyright in 2010.
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`F.
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`Conclusion
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`On the record before this court, Plaintiff does not own The Rook character component as
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`expressed in Copyright Reg. No. B188968. The motion should be denied.
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`DATED: August 17, 2018
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`Respectfully submitted,
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`/s/ Vincent Cox
`Scott D. Ponce (FBN 0169528
`Sanford L. Bohrer (FBN 160643)
`HOLLAND & KNIGHT LLP
`701 Brickell Avenue, Suite 3000
`Miami, Florida 33131
`Telephone: (305) 789-7678
`Facsimile: (305) 665-2843
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`and
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`Louis P. Petrich, Pro Hac Vice
`Vincent Cox, Pro Hac Vice
`Leopold, Petrich and Smith, P.C.
`2049 Century Park East, Suite 3110
`Los Angeles, California 90067-3274
`Telephone: 310/277-3333
`Facsimile: 310/277-7444
`Email: lpetrich@lpsla.com
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`vcox@lpsla.com
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`Attorneys for Defendants
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`6Except as otherwise provided in subsection (2) of this section, ORS 84.001 (Short title) to
`84.061 (Federal electronic signatures law partially superseded) apply to electronic records and
`electronic signatures relating to a transaction. (2) ORS 84.001 (Short title) to 84.061 (Federal
`electronic signatures law partially superseded) do not apply to a transaction to the extent it is
`governed by:(a) A law governing the creation and execution of wills, codicils or testamentary
`trusts.
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`13
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