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`Case 1:19-cv-11586-IT Document 60 Filed 04/03/20 Page 1 of 14
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
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`PHILIPS NORTH AMERICA LLC,
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`v.
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`FITBIT, INC.,
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`Plaintiff,
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`Defendant.
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`Civil Action No. 1:19-cv-11586-IT
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`SUPPLEMENTAL JOINT STATUS REPORT
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`After the Scheduling Hearing, pursuant to the Court’s request, Fitbit contacted Philips
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`regarding scheduling. Among other things, the parties met and conferred concerning a procedure
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`for addressing Fitbit’s Motion for Partial Summary Judgment of Invalidity under 35 U.S.C. §112
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`directed to one claim element of the ‘007 patent1 (“MSJ motion”). Dkt. 44. However, the parties
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`have been unable to agree on an approach for resolving Fitbit’s indefiniteness arguments in this
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`case.
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`Fitbit’s introductory statement
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`Fitbit’s counsel can sum up the actions requested from the Court in this document as
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`follows:
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` Fitbit does not want to divert the Court from what Fitbit believes is the best use of
`judicial resources of this Court: determination that the asserted claims of the patents in
`suit are patent ineligible as abstract ideas. Fitbit requests a hearing on its case-dispositive
`motion to dismiss at the Court’s convenience.
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`
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` Fitbit properly filed its MSJ motion that is distinct from run-of-the-mill claim
`construction issues. The claims of the ’007 patent are indefinite—there is no cure for
`that. It involves a legal issue that is cabined by the four corners of the specification. As
`the motion makes clear, resort to expert testimony or extrinsic evidence cannot be used to
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`1 Fitbit expressly previewed this MSJ motion in the initial case management Joint Statement filed
`November 25, 2019 (Dkt 23 p.4.)
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`Case 1:19-cv-11586-IT Document 60 Filed 04/03/20 Page 2 of 14
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`remedy the unique legal flaw.2 The 15 page, concise motion should be granted and a
`hearing is not necessary unless the Court desires. However, Fitbit does not want the MSJ
`motion to detract the Court from the pending motions to dismiss.
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` Fitbit needs additional time to comply with the local patent rule document production due
`to the amount of legacy products at issues. Fitbit will have code available for inspection
`pursuant to the protective order and will produce the majority of documents by the
`current deadline. Fitbit will make available any additional code or produce additional
`documents on a rolling basis as soon thereafter as practicable.
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`Philips’ introductory statement
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`Philips opposes supplemental briefing of a single indefiniteness argument while claim
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`construction proceeds in parallel, especially when Fitbit has suggested that it has other
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`indefiniteness arguments that it apparently plans to raise—separately briefing all these issues is
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`the opposite of the “streamlining” that Fitbit suggests would be obtained by separately briefing
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`its motion—and the suggestion that claim construction is irrelevant to Fitbit’s indefiniteness
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`arguments runs counter to both logic and Federal Circuit precedent.3 Fitbit is also wrong in
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`arguing that expert testimony is irrelevant to indefiniteness. First, it can be relevant to claim
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`construction, which would inherently weigh on indefiniteness. Second, both Federal Circuit and
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`this district have stressed that whether a means-plus-function claim is supported by the
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`specification is a question to be considered from the perspective of a person of ordinary skill in
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`2 Dkt. 44, p. 7 (“Indeed, ‘the testimony of one of ordinary skill in the art cannot supplant the total
`absence of structure from the specification.’” quoting Default Proof Credit Card Sys., Inc. v.
`Home Depot U.S.A., 412 F.3d 1291, 1302–03 (Fed. Cir. 2005)).
`3 See Lockheed Martin Corp. v. Space Systems/Loral, Inc., 324 F.3d 1308, 1319 (Fed. Cir. 2003)
`(“Once a court establishes that a means-plus-function limitation is at issue, it must identify and
`construe that limitation, thereby determining what the claimed function is, and what structures
`disclosed in the written description correspond to the ‘means’ for performing that function.”)
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`the art and have relied on expert testimony—including when determining whether any
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`algorithms (if necessary) are disclosed.4
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`There is little merit to Fitbit’s argument that its MSJ argument is wholly separate from
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`claim construction, or that separately briefing the issue would be the most efficient way to
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`proceed. Philips suggests that all the claim construction issues should be raised in an orderly
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`and efficient manner through the already scheduled claim construction process.
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`With respect to the Motion to Dismiss, Philips believes that the Court has more than
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`sufficient information and does not need a hearing on a matter that is focused on the pleadings,
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`which are to be taken as true at this stage of the litigation.
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`With regard to Fitbit’s request for additional time to produce documents in accordance
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`with the local rules, Fitbit
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`An explanation of the parties’ positions follow. For the Court’s convenience, Exhibit A
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`includes a table summarizing the parties’ positions.
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`Explanation of the Parties’ Positions
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`1. MSJ Motion
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`a. Fitbit’s Position
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`Fitbit’s position is simple: briefing for the pending MSJ motion should be completed with
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`a two-week extension and heard at the Court’s convenience. Fitbit has no objection to the
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`hearing occurring on the same day as the Markman hearing (August 6) or at an earlier time if the
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`4 See, e.g., AllVoice Computing PLC v. Nuance Comms., Inc., 504 F.3d 1236, 1245-1246 (Fed.
`Cir. 2007) and Michael Sandborn & Mark Sandborn Partnership v. Avid Tech., Inc., 53
`F.Supp.3d 468, 481-482 (D. Mass. 2014).
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`Court prefers.5 Indeed, a ruling in Fitbit’s favor would moot the need for the Court to even
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`consider any other claim construction issues on the ’007 patent.
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`Fitbit’s proposal also provides the Court with the opportunity to delay consideration of
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`the MSJ motion to focus exclusively on the pending, case dispositive Motion to Dismiss. The
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`Motion to Dismiss demonstrates that the patents-in-suit are directed to patent-ineligible subject
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`matter. Fitbit respectfully submits that resolution of this case dispositive motion would be the
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`most efficient use of the Court’s resources for this case.
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`With respect to the MSJ motion, Fitbit filed it and Philips should respond to it (rather
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`than trying to evade it). At just 15 pages in length, the MSJ motion succinctly demonstrates that
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`the specification of the ’007 patent fails to disclose an algorithm for a single means-plus-function
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`claim element present in all asserted claims. As detailed in the MSJ motion, this failure to
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`disclose cannot be cured by extrinsic evidence or expert testimony and renders each asserted
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`claim invalid under 35 U.S.C. 112. 6
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`5 Fitbit acknowledges that the timing that it is proposing now differs from arguments it made at
`the status conference on March 24. In the context of explaining the rationale for the timing of
`the filing of the MSJ motion, Fitbit was mistaken in its belief that the IPR bar date was July 22,
`2020 (one year from the filing of the Complaint). Thus, in light of Samsung v. Prisua, 948 F.3d
`1342, 1350 (Fed. Cir. 2020), which many in the IP community believe impacts IPR practice,
`Fitbit believed that it was imperative to get a ruling on the MSJ before July 22, 2020. Indeed,
`there are currently CLE’s being offered addressing the impact of Samsung on IPR practice. See
`IPO’S IP CHAT CHANNEL™: Indefiniteness After Samsung v. Priusa (attached as Exhibit B).
`However, the Complaint was actually served months after its filing date. The correct IPR bar is
`actually October 2, 2019 (one year from the date of service), a fact that none of the parties
`appreciated until after the status conference. And in contrast to Philips’ representations here
`suggesting the Samsung case did not affect IPR practice, the decision is the sole topic of one of
`only four posts this year on Foley & Lardner’s (counsel for Philips) own “PTAB Trial Insights”
`blog. See https://www.foley.com/en/insights/blogs/ptab-trial-insights (“PTAB Cannot Invalidate
`Challenged Claims for Indefiniteness in an IPR”), last accessed April 2, 2020 (attached as
`Exhibit C).
`6 Dkt. 44, p. 7.
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`Rather than respond to the MSJ motion, even when Fitbit offered it a briefing extension,
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`Philips seeks to avoid the motion entirely by asking this Court to dismiss it without prejudice.
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`Philips’ proposal requires Fitbit to raise the issues from its MSJ motion within later claim
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`construction briefing. In proposing this, Philips is trying to force Fitbit to make truncated
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`arguments in a page-limited, omnibus claim construction brief.7 This proposal will deprive Fitbit
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`of the chance to make (and the Court to hear) its complete argument on the issue and runs
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`counter to the goals of summary judgment of streamlining cases.
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`The possibility that Fitbit may raise other, non-dispositive indefiniteness arguments in
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`connection with claim construction on the four patents-in-suit should not deprive it of the
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`opportunity to present fulsome dispositive arguments on the ’007 patent.8 Fitbit did not ask to be
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`sued on so many patents, Philips made that choice. There is no legal basis for the relief Philips
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`seeks. Indeed, its request appears to be yet another example of the vexatious litigation strategy
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`that Philips is employing against Fitbit.9
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`7 Pursuant to L L.R. 7.1(b)(4), absent leave of Court, claim construction briefs are limited to 20
`pages. Philips has not offered to extend the page limit in an amount consistent with the length of
`the MSJ motion. Furthermore, in the introductory section of this Joint Statement, Philips
`characterizes the briefing on the MSJ motion as “supplemental” briefing in a further attempt to
`justify subsuming it within claim construction briefing. However, the briefing is not
`“supplemental,” it is briefing on a properly, independent motion for summary judgment.
`8 Philips’ assertion below that there may be “serial (and potentially endless) motions for partial
`summary judgment on purportedly discrete indefiniteness issues” lacks any basis. Fitbit has and
`will continue to be respectful of the Court’s time and resources as it defends itself against serial
`litigation from Philips.
`9 The case at bar is but one of many actions brought by Philips in its serial litigation campaign in
`multiple venues against Fitbit to increase its bargaining leverage. Philips’ current Complaint
`asserts four patents, three of which have expired and one soon to expire. Dkt. 23 at p.1. Foreign
`counterparts to three of the asserted patents in this Complaint were already found invalid in
`proceedings in Europe before Philips filed the Complaint in this action. Id. at p.8.
`When Fitbit filed the Motion to Dismiss in this case, Philips made a dramatic pivot and
`responded by filing an ITC Investigation on three totally different patents (which they could have
`filed on the same patents in suit as in the case before this Court but did not), with the hearing set
`for October 5, 2020. Philips has since filed another infringement action, this time in Germany on
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`Philips has chosen to cite numerous cases below concerning the MSJ motion. It is
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`unclear why. None of them prohibits a pending, patent-dispositive MSJ motion from going
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`forward in parallel with the claim construction process. Fitbit is aware of no other authority that
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`prohibits it. Indeed, some Court’s specifically allow construction of important claim terms to be
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`considered separately from the general claim construction process.10
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`Philips’ proposal actually complicates the claim construction process by delaying a stand-
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`alone issue on a single claim element that could be briefed and considered by the Court on an
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`extended timeline into a more compressed period, with less pages available for briefing. On the
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`other hand, Fitbit’s proposal provides Philips with additional time to prepare a response to the
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`SJM motion, and additional time for the Court and staff to consider the motion, without placing
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`analysis of the briefing for the SJM motion in the midst of the analysis of briefing of claim
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`construction for all other patents.
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`a single patent that will expire in 9 months. Fitbit perceives Philips’ litigation and commensurate
`settlement strategy over the past several years of serial (and unsuccessful) litigation against both
`Fitbit and, fellow competitor, Garmin (Garmin has a parallel case to this one in the Central
`District of California and also is a Respondent in the ITC action) in the United States and Europe
`as having one primary goal: drive up litigation costs irrespective of the merits of any
`case. Indeed Philips’ actions made is necessary for Fitbit to file a declaratory judgment action
`against Philips in N.D. Cal. on April 2, 2020, seeking a judgment that the patents asserted are not
`infringed because the expected ruling in the ITC of non-infringement is not binding on the
`District Court.
`10 In the District of Delaware, Chief Judge Stark’s Case Management Checklist asks, “Should the
`Court consider a "super-early" limited claim construction hearing on those most important
`terms?” (Exhibit D); see also Glob. Sessions LP v. Travelocity.com, LP et al., 2011 U.S. Dist.
`LEXIS 155901 (E.D. Tex. Aug. 18, 2011) (inviting a defendant to submit a letter brief requesting
`the court to construe no more than three case-dispositive terms and noting that the court would
`then hold “an early Markman hearing on the identified case dispositive terms . . . . If the case is
`not resolved following the Court’s claim construction summary judgment rulings, a Markman
`hearing, as set forth in the Docket Control Order or at the patent status conference, will occur as
`scheduled.”)
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`b. Philips’s Position
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`Philips’s position is that Fitbit’s Motion (Dkt. 43) be denied without prejudice to be
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`raised in the context of claim construction, and that Fitbit identify all indefiniteness arguments
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`with its initial exchange of terms for claim construction, as that would be the most efficient
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`and orderly way to proceed.
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`Fitbit’s revised position since the Court’s Scheduling Conference is that combining a
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`hearing on its indefiniteness motion with the scheduled Markman hearing would be appropriate,
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`in part because the deadline for filing of IPRs is not until October (and not in July as Fitbit
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`incorrectly stated during the March 24th conference).11 This is a striking reversal from Fitbit’s
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`original demand that the Court take up its 112 motion with dispatch, not only because of the
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`asserted (and incorrect) July deadline, but also because of an unsubstantiated claim that it only
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`recently learned that it could not file IPRs if the claims were indefinite (which is also not
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`correct).12 Regardless, Fitbit appears to have walked away from those arguments, however, still
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`11 Fitbit explains that it was not made aware of this error until March 28th, which is the day that
`counsel for Philips explained via e-mail that the deadline was in October and not July. Fitbit also
`suggests that both parties failed to appreciate the true deadline. That is not true. Fitbit raised the
`incorrect date for the first time at the scheduling conference, and counsel for Philips presumed
`that counsel had miss-spoken. Since Fitbit’s primary justification for needing to file its MSJ
`when it did was the alleged (but non-existent) change in practice before the PTAB caused by the
`Federal Circuit’s Samsung decision, that seemed like the more salient issue to address. Now that
`Samsung provides no such justification, Fitbit appears to be falling back on its mistaken
`deadlines.
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`Fitbit also points to a Foley & Lardner blog discussing the Samsung decision, yet that
`blog post simply reiterates how the Federal Circuit rejected Samsung’s arguments. It described
`no dramatic change to PTAB practice—because there was none.
`12 IPRs have always allowed petitioners to reserve potential indefiniteness of a claim while
`nonetheless proceeding with prior art arguments. See Apple Inc. v. Agis Software Development
`LLC, IPR2018–00818, Institution Decision, paper no. 9 at 8-9, 2018 Pat. App. LEXIS 8863 at
`*11 (the applicable rules “do not require Petitioner to express its subjective belief regarding the
`correctness of its proposed claim constructions”); Western Digital Corp. v. Spex Technologies,
`IPR 2018-00084, Institution Decision, paper no. 14 at 10-12, 2018 Pat. App. LEXIS 5866 at *15-
`17 (endorsing use of patent owners construction for purposes of IPR). The Samsung case
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`insists that indefiniteness be briefed separately from claim construction, which still unnecessarily
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`complicates and multiplies the proceedings.
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`Rather than assess the meaning of the patent claims in light of the specification, what one
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`of ordinary skill in the art would understand, and other relevant extrinsic evidence in one
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`comprehensive set of briefs that address claim construction and indefiniteness, Fitbit insists that
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`the alleged indefiniteness of a single term in the ‘007 Patent should be briefed separately. Fitbit
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`has also suggested that it has additional indefiniteness arguments that it apparently intends to
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`introduce. Philips sees no benefit to the parties nor the Court in addressing serial (and
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`potentially endless) motions for partial summary judgment on purportedly discrete indefiniteness
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`issues. The prudent approach would be to deal with indefiniteness in concert with claim
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`construction, as other courts have recognized. See Audio MPEG, Inc. v. HP Inc., 2016 WL
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`7010947 at *7-8 (E.D. Va. 2016) (finding the “more prudent approach” is to address
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`indefiniteness either during or after a Markman hearing); ASM Am., Inc. v. Genus, Inc., No. C-
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`01-2190-EDL, 2002 WL 1892200 at *15-16 (N.D. Cal. 2002) (discussing how “indefiniteness is
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`intertwined with claim construction”); Verint Sys. Inc. v. Red Box Recorders Ltd., 166 F.Supp.3d
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`referenced by Fitbit at the scheduling conference merely re-affirmed what has always been true
`under the Patent Statute, namely that IPRs only address 102 and 103. See 35 U.S.C. § 311 (IPRs
`are available “only on a ground that could be raised under section 102 or 103”). As the Samsung
`decision itself acknowledges, it has always been the practice of the PTAB that it will not
`invalidate claims for indefiniteness. See Samsung v. Prisua, 948 F.3d 1342, 1350 (Fed. Cir.
`2020) (“On appeal, Samsung challenges the Board’s decision not to cancel the claims it found
`indefinite”) Contrary to Fitbit’s suggestion, Samsung actually endorsed the ability of a
`petitioner to argue indefiniteness in District Court while nonetheless pursuing an IPR petition—
`which is exactly what Fitbit alleged Samsung somehow precluded. In Samsung, the court
`remanded to the PTAB claims that, despite their indefiniteness, may still be analyzed for
`invalidity in view of the prior art. See Samsung, 948 F.3d at 1355 (remanding the question of
`invalidity due to prior art of otherwise indefinite claims back to the PTAB).
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`364, 376 (S.D.N.Y. 2016) (noting how “a court’s determination of the structure that corresponds
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`to a particular means-plus-function limitation is indeed a matter of claim construction”) (quoting
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`Atmel Corp. v. Info. Storage Devices, Inc., 198 F.3d 1374, 1379 (Fed. Cir. 1999)). Indeed, even
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`when claim construction addresses indefiniteness issues, courts in this district have gone so far as
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`to defer ruling on indefiniteness issues until well after claim construction and until a more
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`complete record is developed. Koninklijke Philips Electronics N.V. v. Zoll Med. Corp., 914
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`F.Supp.2d 89, 100-101 (D. Mass. 2012) (declining to rule on indefiniteness until the summary
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`judgment phase as it would be a “battle of the experts” that would not be properly decided at the
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`claim construction phase); Crane Security Techs., Inc. v. Rolling Optics AB, 166 F.Supp.3d 76,
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`90-91 (D. Mass. 2016) (disposing of defendant’s assertions of indefiniteness that the court found
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`unpersuasive at the claim construction phase, but waiting to rule on the definiteness other terms)
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`To be clear, Philips is not attempting to “evade” the motion as Fitbit alleges above.
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`Philips is simply attempting to avoid unnecessary duplicative work for both its client and the
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`Court, especially when the Court is trying to balance its schedule. Under Philips’s proposal,
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`Philips will necessarily address all the indefiniteness issues that Fitbit intends to raise during
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`claim construction briefing. Furthermore, during the meet and confer, Philips explained that it
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`would be willing to agree to a reasonable number of additional pages for claim construction and
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`indefiniteness briefing depending on how many terms Fitbit identified as indefinite.
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`Accordingly, the page limits provide no reasoned basis to reject the most efficient path
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`forward.13
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`13 Fitbit also raises various collateral proceedings on different patents that have no bearing on
`this case, but which nonetheless demonstrate Fitbit’s ongoing disregard for Philips’s intellectual
`property rights. As the parties have previously acknowledged, many of the asserted patents have
`either expired or are close to expiring, meaning that they either cannot be enforced in an ITC
`proceeding or would lead to a very limited remedy in an ITC proceeding. Meanwhile, Philips’s
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`2. 101 Motion to Dismiss
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`a. Fitbit’s Position
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`Fitbit proposes the Court set an in-person hearing on the Renewed Motion to Dismiss,
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`Dkt. 33 on a date convenient for the Court in mid-May 2020 or as soon as practicable thereafter.
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`The motion is fully briefed and is case dispositive on the legal issue of patentability of all
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`asserted patents. Fitbit believes an in-person presentation will be of greatest assistance to the
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`Court in deciding the Motion to Dismiss. Surprisingly, Philips opposes setting any hearing date
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`for this case dispositive motion. Fitbit believes that live argument regarding the patents-in-suit,
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`will further demonstrate that Philips cannot effectively rebut Fitbit’s arguments concerning
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`patent ineligible subject matter. Moreover, Fitbit believes that providing a date certain for
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`hearing on the case dispositive Motion to Dismiss aid both parties in evaluating the respective
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`merits of their overall global litigation positions and have a productive impact on the parties’
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`global settlement discussions.
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`b. Philips’ Position
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`The Court may deny Fitbit’s Motion to Dismiss without argument, especially in light of
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`the Supreme Court’s denial of cert. in regard to Berkheimer and Cellspin, and the additional
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`supporting Federal Circuit decisions in Gemalto and Aatrix. The issues are fully, and
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`extensively, briefed, and as a Motion to Dismiss there are no disputed facts for which argument
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`would be helpful. Rather, and as Fitbit recently acknowledged during the recent scheduling
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`conference, at the Motion to Dismiss stage, the Court must adopt Philips’s proposed
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`foreign patents obviously can not be enforced in this case. Fitbit’s complaint about the amount
`of litigation between the parties rings hollow in light of the fact that hours after including the
`above complaints in this statement, Fitbit sued Philips in the Northern District of California,
`seeking a declaratory judgment that the patents asserted at the ITC are not infringed.
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`understanding of the claims and adopt as true the facts as pled. Dkt. 56 at 29-30. To the extent
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`Fitbit requests oral argument to dispute facts as pled or the understanding of the claims, that is
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`both unnecessary and improper.
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`To the extent the Court believes argument to be necessary, Philips defers to scheduling
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`such a hearing at the Court’s convenience.
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`3. Completion of patent-related disclosures contemplated by Local Rule 16.6(d)(1) and
`(4)
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`a.
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`Fitbit’s Position
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`Fitbit is working diligently to collect and produce all required discovery by April 15,
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`2020. Given the volume of accused products, collection is taking longer than initially expected,
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`particularly as it relates to source code. Fitbit will have substantial documents available and
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`prepared for production by April 15, 2020, including source code. However, the collection of
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`source code may not be complete, given the scope of the infringement allegations. There are 21
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`accused products, three different operating systems for running the Fitbit App (iOS, Android and
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`Windows) and multiple versions of the source code. Many of the accused products are legacy
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`devices that were released over 7 years ago and are no longer in production. Remote access is
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`not the issue, but rather the volume and difficulty of finding anyone remaining at Fitbit who has
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`knowledge of the legacy code to facilitate collection. Thus, Fitbit respectfully asks the Court to
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`extend the date for compliance with Local Rule 16.6(d)(1) and (4) to May 14, 2020. Fitbit will
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`continue to use best efforts to produce responsive materials by the current deadline.
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`Philips is now suggesting that it be allowed to remotely review source code. There is no
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`need for this. The existing code review provisions that were approved by Philips only days ago,
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`and just entered in the Protective Order dated April 2, 2020 are sufficient.
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`b. Philips’ Position
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`During the meet and confer on Fitbit’s request for an extension of time to complete its
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`document production under the Local Rules, Philips made clear that it was willing to entertain a
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`reasonable extension regarding documents if Fitbit could identify with specificity what it needed
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`more time to produce. Fitbit vaguely mentioned source code, but was unable to commit to
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`limiting the extension of time to source code. Philips requested that Fitbit identify with
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`specificity the categories of documents that it needed more time to produce, and next received
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`the above proposal for a rolling production of materials that should have been produced weeks
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`ago.
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`While Fitbit has not elaborated as to what, specifically, the issues are with regard to
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`producing source code, to the extent those issues relate to producing source code on a stand-
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`alone review computer at a remote location, Philips suggests that source code production can be
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`accomplished in a manner that allows for remote reviewing while to COVID situation makes in-
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`person review difficult.14 Surely Fitbit allows its engineers and software developers to access
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`source code remotely, and similar means can be utilized in this litigation to allow for remote
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`review of software by Philips’s experts and attorneys. Philips is happy to discuss those options
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`14 Fitbit refers to the protective order entered into in this matter as agreed to only “days ago,” but
`that is not accurate. While the parties jointly submitted the protective order earlier this week,
`that is because many weeks ago—before stay-at-home orders were issued across the U.S.—the
`parties agreed to adopt a protective order that mirrored that in the ITC. That does not justify
`maintaining procedures in this case that are unnecessary and which would needlessly hamper
`discovery given the present situation. Regardless, consistent with the agreement that a protective
`order mirror what was agreed to in the ITC the parties have been discussing the potential for
`remote source code review procedures in the ITC action as well, but have not yet come to any
`agreement.
`
`4845-2843-1033.6
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`- 12 -
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`

`

`
`
`Case 1:19-cv-11586-IT Document 60 Filed 04/03/20 Page 13 of 14
`
`with Fitbit, and the parties at the end of the day may need to agree on a remote means for
`
`reviewing source code.
`
`Dated: April 3, 2020
`
`PHILIPS NORTH AMERICA LLC,
`
`By its attorneys,
`
`
`/s/ Eley O. Thompson______
`Ruben Rodrigues (BBO 676,573)
`Lucas I. Silva (BBO 673,935)
`FOLEY & LARDNER LLP
`111 Huntington Avenue
`Suite 2500
`Boston, MA 02199-7610
`Phone: (617) 342-4000
`Fax: (617) 342-4001
`rrodrigues@foley.com
`lsilva@foley.com
`
`
`Eley O. Thompson (pro hac vice)
`FOLEY & LARDNER LLP
`321 N. Clark Street
`Suite 2800
`Chicago, IL 60654-5313
`Phone: (312) 832-4359
`Fax: (312) 832-4700
`ethompson@foley.com
`
`
`
`
`
`
`FITBIT, INC.
`
`By Its Attorneys,
`
`/s/ Yar R. Chaikovsky
`Yar R. Chaikovsky
`yarchaikovsky@paulhastings.com
`Dave Beckwith
`davidbeckwith@paulhastings.com
`David Okano
`davidokano@paulhastings.com
`Radhesh Devendran
`radheshdevendran@paulhastings.com
`Berkeley Fife
`berkeleyfife@paulhastings.com
`
`PAUL HASTINGS LLP
`1117 S. California Avenue
`Palo Alto, California 94304-1106
`Telephone: 1(650) 320-1800
`Facsimile:
`1(650) 320-1900
`
` Jennifer B. Furey (BBO # 634174)
`Andrew T. O’Connor (BBO # 664811)
`GOULSTON & STORRS PC
`400 Atlantic Avenue
`Boston, MA 02110
`Telephone: (617) 482-1776
`Facsimile: (617) 574-4112
`E-mail: jfurey@goulstonstorrs.com
`aoconnor@goulstonstorrs.com
`
`4845-2843-1033.6
`
`- 13 -
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`

`

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`
`
`
`Case 1:19-cv-11586-IT Document 60 Filed 04/03/20 Page 14 of 14
`
`CERTIFICATE OF SERVICE
`
`I certify that a true copy of the above document was served on the attorney of record for
`
`each party via the Court’s CM/ECF system, which will send notification of this filing (NEF) to
`
`all registered participants, and paper copies will be sent to those indicated as nonregistered
`
`participants.
`
`
`Dated: April 3, 2020
`
`
`
`
`
`
`
`
`
`
`
`
`
`By: /s/ Yar R. Chaikovsky
`
`
`Yar R. Chaikovsky (Pro Hac Vice)
`
`
`
`4845-2843-1033.6
`
`