Free Brief in Opposition to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 01-cv-00413-JLK-BNB M.D. MARK, INC., Plaintiff, v. KERR-McGEE CORPORATION and ORYX ENERGY COMPANY, Defendants.

DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION TO AMEND THE JUDGMENT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 59(e)

Defendants Kerr-McGee Corporation ("Kerr-McGee") and Oryx Energy Company ("Oryx") 1 (collectively, "Defendants") hereby oppose Plaintiff M.D. Mark, Inc.'s Motion to Amend the Judgment ("Motion to Amend"). INTRODUCTION On September 28, 2007, the Court entered judgment in favor of Plaintiff on its misappropriation claim reflected in Section C of the Verdict Form, and awarded $25,266,381 in damages (also as reflected in Section C), plus post-judgment interest at a rate of 4.11% per year. See Judgment at 4-5. The Court correctly declined to award Plaintiff: (a) actual damages of

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Oryx Energy Company ceased to exist on February 26, 1999, at which time it became KerrMcGee as a result of a statutory corporate merger. 1

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$15,745,000 reflected in Section A of the Verdict Form; and (b) actual damages of $968,750 reflected in Section B of the Verdict Form. See Judgment at 5. Plaintiff now contends in its Motion to Amend, that the Court should have "stacked" all three overlapping damages awards to award Plaintiff: (a) $15,745,000 in damages from Section A; (b) $968,750 in damages from Section B; and (c) $25,266,381 from Section C, for a combined total of $41,980,131 in actual damages. Plaintiff further argues for prejudgment interest on the "stacked" award of $48,014,408.02--for a total judgment of over $90 million. The Court should deny Plaintiff's request to "stack"--and thereby double count--the damage awards because any such stacking is contrary to the law as well as the record facts of the case. Stacking the damages not only would allow Plaintiff to recover on claims that fail as a matter of law, but would also violate the well-established rule against multiple (or double) recovery. The net result would be an excessive damage award not supportable under any view of the evidence. Plaintiff's claim for prejudgment interest likewise would run afoul of the law and facts of the case. Plaintiff is not entitled to prejudgment interest on a stacked award. Nor is Plaintiff entitled to prejudgment interest on the lump-sum damages award (in Section C) for misappropriation of trade secrets. That is because it is impossible to ascertain: (a) how much in damages the jury found for each category of seismic data subsumed within the lump-sum award, or (b) the date from which interest should run on the damages found for each category of seismic data. In no event can prejudgment interest be computed for the entire $25,266,381 in damages found by the jury in Section C from January 1997.

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LEGAL STANDARD The Court has discretion in ruling on a motion to amend a judgment pursuant to Federal Rule of Civil Procedure 59(e). See Brown v. Presbyterian Healthcare Servs., 101 F.3d 1324, 1331 (10th Cir. 1996). A Rule 59(e) motion should not be granted unless the movant shows: "(1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice." Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). ARGUMENT I. Plaintiff Is Not Entitled to "Stack" the Damages From Sections A, B, and C of the Verdict Form. A. As a Matter of Law, Plaintiff Is Not Entitled to Recover on the Claims Submitted in Sections A and B of the Verdict Form.

Plaintiff's request to "stack" the damages awards in Sections A, B, and C of the Verdict form fails because Defendants are entitled to judgment as a matter of law on the claims underlying the awards in Sections A and B of the Verdict Form, as set forth in more detail in Defendants' previously filed Renewed Motion for Judgment as a Matter of Law Pursuant to Rule 50(b) or Alternatively, Motion for New Trial, for Remittitur, and/or to Alter or Amend the Judgment Pursuant to Rule 59 and 59(d) (hereafter, "Defendants' Renewed Motion"), Part I.A & Part I.B, at 11-16. Plaintiff is barred from collecting either the $15,745,000 under Section A or the $968,750 under Section B, and Plaintiff's attempt to stack these damages onto the $25,266,381 award in Section C should be denied as moot.

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B.

Plaintiff's Request to Stack the Damages Is Also Impermissible under the Rule Prohibiting Multiple Recovery for the Same Injury.

In addition, Plaintiff's request to stack damages likewise should be denied because the rule prohibiting multiple (or double) recovery bars Plaintiff's attempts to collect multiple times for a single "injury." In its motion, Plaintiff asserts that each of its claims is "separate and distinct" and that the jury's awards for each claim "should be added together." See Plaintiff's Motion at 2. To the contrary, Plaintiff's claims are based on separate theories of recovery intended to address the same alleged "injury" to Plaintiff concerning the same categories of seismic data (i.e. the category 1 claim concerning the 16,000 miles of Oryx seismic data, the category 2 claim concerning the 760 miles of Kerr-McGee licensed data, and the category 3 claim concerning the 3,100 miles of so-called "bootleg" seismic data). The Court apparently recognized this fact when it awarded Plaintiff the largest single measure of damages determined by the jury rather than the sum of all three of the jury's damage findings. 1. The rule against multiple recoveries is well-established in Colorado and under Tenth Circuit precedent.

Under Colorado law, a plaintiff is entitled to file separate claims based on different legal theories to recover damages for a single perceived injury (e.g., breach of contract and misappropriation of trade secrets), but is only entitled to a single recovery for that injury. See Lexton-Ancira Real Estate Fund, 1972 v. Heller, 826 P.2d 819, 822-23 (Colo. 1992); see also Farmers Group, Inc. v. Williams, 805 P.2d 419, 426 (Colo. 1991). The Tenth Circuit has also long recognized that a plaintiff is entitled to plead multiple legal theories or bring separate and distinct claims but is not allowed a double recovery. See Telex Corp. v. Int'l Business Mach. Corp., 510 F.2d 894, 931 (10th Cir. 1975). see also Clappier v. Flynn, 605 F.2d 519, 529 (10th

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Cir. 1979) (holding that plaintiff not entitled to separate compensatory damage awards under separate legal theories); Westric Battery Co. v. Standard Elec. Co., 482 F.2d 1307, 1317 (10th Cir. 1973) (double or duplicative recoveries are invalid). 2 Thus, although a plaintiff may seek recovery for an alleged injury under multiple legal theories, such a plaintiff, if successful, is only entitled to a single recovery for that injury. See Rancho Escondido Property Owners Ass'n v. Redstone Mgmt. Co., ___ P.3d___, 2007 WL 2264637, at *3 (Colo. Ct. App. Aug. 9, 2007) (holding that although plaintiff was entitled to seek recovery under both Colorado Common Interest Ownership Act and private contract, it could only collect once for unpaid assessments); Marean v. Stanley, 38 P. 395, 396 (Colo. Ct. App. 1984) ("As a general proposition, it is true that, if a party ha[s] several remedies for the recovery of the same debt, he may resort to them all, though he can have but one satisfaction."). Here, Plaintiff misunderstands the applicable legal inquiry and mistakenly frames the argument as to whether the different theories of liability inquired about separate conduct or require different elements for recover. To the contrary, the critical question is whether Plaintiff attempts to recover more than once for the same injury. In this case, Plaintiff indeed does ask the Court improperly to double-count. The Colorado Supreme Court has recently held that a

plaintiff's claims need not be "duplicative" in order for the rule banning double recovery to apply. In Crowe v. Tull, 126 P.3d 196, 210 & n.11 (Colo. 2006), the Court reasoned that Texas law, which Defendants argue should govern this case, also prevents the sort of double recovery sought by Plaintiff. See Waite Hill Servs., Inc. v. World Class Metal Works, Inc., 959 S.W.2d 182, 184 (Tex. 1998) ("A party is generally entitled to sue and to seek damages on alternative theories. . . . [but] is not entitled to a double recovery. . . . A double recovery exists when a plaintiff obtains more than one recovery for the same injury."); Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 7 (Tex. 1991) (noting that "[a]ppellate courts have applied the one satisfaction rule when the defendants commit the same act as well as when defendants commit technically differing acts which result in a single injury"). 5
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although a plaintiff's legal malpractice claim and his false advertising claim under the Colorado Consumer Protection Act were not "duplicative" in that they did not require the plaintiff to prove the same factual elements, the plaintiff was nevertheless limited to obtaining damages under only one of her claims should she receive awards under both "so as to prevent double recovery." See id. at 210 n.11. 2. The Court has already recognized that Plaintiff here seeks to recover for the same injury under multiple legal theories.

Recognizing that Plaintiff was pursuing multiple theories of recovery to recover the same damages for three categories of seismic data, the Court specifically instructed the jury regarding the law against double recovery. See Jury Instructions, Instruction 3.8 "Multiple Recovery Prohibited." The Court thus expressly instructed the jury as follows: A plaintiff in a civil action may recover only once for the same injury, even though it seeks an award of damages for that injury under several theories of relief. . . . M.D. Mark has sued for the same damages on some of their [sic] different claims for relief. The claims for relief on which M.D. Mark has sued and on which you have been instructed are: misappropriation of trade secrets and breach of contract[.] I am instructing you on the rule prohibiting multiple recovery so that you will be aware of the law on this issue. It is I, rather than you, however, who will apply the rule. You are specifically instructed to consider each of M.D. Mark's claims independently. That is, you are to consider each of these claims as though it were the only claim in this case. If you find in favor of M.D. Mark on any one of its claims, you are to write in an award of damages on that claim without regard to your finding for or against M.D. Mark on any other claim. Id. (emphasis added). The Court has, therefore, already rejected Plaintiff's argument that each of its claims is "separate and distinct and the jury awards for each claim should be added together." See Plaintiff's Motion at 2. The mere fact that the jury awarded different damages amounts in each section of the Verdict Form does not support Plaintiff's attempt to stack all three of the damages awards.

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Plaintiff was entitled to assert separate and distinct legal theories based on its perceived injury. See Lexton-Ancira, 826 P.2d at 823; Crowe, 126 P.3d at 210 & n.11. But the bar on multiple recovery still applies even though Plaintiff's several claims are not "duplicative." See Crowe, 126 P.3d 210 & n.11 (holding that prohibition on multiple recovery applied to plaintiff's two claims even though the claims did not share same elements). Thus, as long as the damages award of $25,266,381 found in Section C for misappropriation of trade secrets, subsumes and awards Plaintiff damages for all of the seismic data at issue (in categories 1, 2, and 3), Plaintiff cannot stack on top of that $25,266,381 award, additional, duplicative damages awards for the category 1 seismic data (found by the jury in Section A of the Verdict Form) or for the category 2 seismic data (found by the jury in Section B of the Verdict Form). 3. The only way Plaintiff can hope, on this record, to sustain the jury's damage award in Section C is to assume that the jury awarded damages for all three categories of seismic data.

The total number of miles of seismic data at issue in this case, for all three categories of seismic data is approximately 19,860. (Category 1 consists of the some 16,000 miles of Oryx data acquired by Kerr-McGee in the merger; category 2 includes the 760 miles of Kerr-McGee seismic data; and category 3 concerns the 3,100 miles of alleged "bootleg" seismic data.) The highest value per mile of seismic data offered at trial by Plaintiff was $1,250. 3 If one divides the jury's award of $25,266,381 on Plaintiff's misappropriation of trade secrets claim by the number of miles at issue (approximately 19,860), the per-mile damages figure is approximately $1,272, which exceeds the highest per-mile figure sought by Plaintiff. Thus, in awarding Plaintiff $25,266,381 in Section C of the Verdict Form, the jury more than compensated Plaintiff for Defendants continue to contest the basis of the $1,250 figure is a proper per mile valuation for a bulk transfer. See Defendants' Renewed Motion, Part II.A.2, at 26-27. 7
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Kerr-McGee's acquisition of all the seismic miles of data at issue in this case using more than the highest per mile dollar figure offered by Plaintiff's expert ($1,250). Indeed, as Defendants explained in their Renewed Motion for Judgment as a Matter of Law Pursuant to Rule 50(b), or Alternatively, Motion for New Trial, for Remittitur, and/or to Alter or Amend the Judgment Pursuant to Rules 59 and 59(e) ("Defendants' Renewed Motion"), to have any hope of sustaining the jury's award of $25,266,381 in damages in Section C based on the evidence, Plaintiff must argue that the jury considered all 19,860 seismic miles at issue in awarding damages under Section C and awarded damages at the highest per-mile figure suggested by Plaintiff. 4 In requesting that the Court grant additional damages awarded in Section A (for the category 1 seismic data) and in Section B (for the category 2 seismic data), Plaintiff is seeking to recover multiple times based on Kerr-McGee's acquisition of same seismic data. As reflected in its instructions to the jury, the Court understood that Plaintiff was seeking to recover the "same damages" under "different claims for relief." Jury Instructions, Instruction 3.8 "Multiple

Recovery Prohibited." Indeed, the Court told the jury "to consider each of these claims as though it were the only claim in this case" and "to write in an award of damages on [each] claim without regard to your finding for or against M.D. Mark on any other claim." Jury Instructions, Instruction 3.8 "Multiple Recovery Prohibited." The Court expressly instructed the jury that the Court, and not the jury, would apply the rule against multiple recovery. Id. Moreover, when As explained in Defendant's Renewed Motion, however, the jury's award of damages for the category 2 seismic data in Section C was not authorized by the Court's charge or instructions, and thus a new trial is required if it is assumed that this is what the jury did. See Defendant's Renewed Motion, Part III.B. Alternatively, if the jury's award of $25,266,381 in damages was only for the category 1 and category 3 seismic data actually inquired about in Section C, then the jury's award is blatantly excessive (and represents the jury's effort to punish Defendants). In either event, and regardless of how the jury's lump-sum damages finding is construed, a new trial is required. 8
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counsel for Kerr-McGee argued before the Court that the verdict form (especially Section C) created a "risk of duplicative recovery," the Court responded that it "would not permit that to happen post-trial." See Transcript at 1257. Although Defendants strenuously contest the award of the full $25,266,381 in damages found by the jury in answer to Section C, Plaintiff has no entitlement to more than $25,266,381. 4. Plaintiff cannot stack the $15,745,000 found by the jury in Section A of the Verdict Form for the category 1 seismic data--when the damages awarded in Section C already include damages for that data.

There can be no doubt that the jury awarded damages in Section C for the 16,000 miles of Oryx seismic data (i.e., the category 1 seismic data) acquired by Kerr-McGee through the merger with Oryx. The Court's instructions indicate that the jury was considering, for misappropriation of trade secrets in Section C, both the 3,100 of alleged "bootleg" seismic data (category 3) and the 16,000 miles of Oryx seismic data acquired by Kerr-McGee through its merger with Oryx (category 1). See Jury Instructions, Instruction 3.3.2 "`Misappropriation'--Defined." Thus, even if the Court were to assume that, in Section C of the Verdict Form, the jury awarded damages for only two categories of data, i.e., the category 1 seismic data and the category 3 seismic data, rather than all three categories of data, the rule against multiple recovery would prevent Plaintiff from stacking, on top of the $25,266,231 award (in Section C), the jury's award of $15,745,000 (in Section A) for breach of license agreements concerning the same 16,000 miles of Oryx seismic data. In other words, Plaintiff should not be permitted to recover twice for the same 16,000 miles of Oryx seismic data.

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5.

If the Court awards any damages for the 760 miles of Kerr-McGee data in Section B of the Verdict Form, the award of damages in Section C must be reduced pro-rata.

With respect to Section B of the Verdict Form, the jury awarded $968,750 in damages as a result of Kerr-McGee's breach of license agreements relating to 760 miles of Kerr-McGee seismic data (i.e., the category 2 seismic data). Plaintiff now requests that this damage amount be stacked on top of the $25,266,381 award in Section C. As explained above, however, the only way to sustain the jury's $25,266,381 award in Section C is to assume that the jury erroneously considered and awarded damages for these 760 miles of seismic data (i.e., the category 2 seismic data), as well for the category 1 and category 3 seismic data actually inquired about in Section C. But if the Court is inclined to permit the Plaintiff to recover any part of the damages found by the jury in section B (on the theory that Section C did not inquire about the category 2 seismic data), then the award of damages for misappropriation of trade secrets in Section C would necessarily become excessive. Accordingly, if this Court awards any of the damages found by the jury in Section B of the Verdict Form, then the Court should reduce, on a pro-rata or dollar-per-dollar basis, any damages awarded based on the jury's findings in Section C of the Verdict Form (for misappropriation of trade secrets). Otherwise, the Court would effectively be permitting Plaintiff to do an end run around the multiple recovery rule. II. Plaintiff Is Not Entitled to Recover the Prejudgment Interest It Seeks. Plaintiff also seeks an award of award it prejudgment interest, at a rate of 8% per year, based on Colorado Revised Statute Annotated § 5-12-102(1)(b), which provides: "Interest shall be at the rate of eight percent per annum compounded annually for all moneys or the value of all property after they are wrongfully withheld or after they become due to the date of payment or to

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the date judgment is entered, whichever first occurs." COLO. REV. STAT. ANN. § 5-12-102(1)(b) (emphasis added). See Plaintiff's Motion at 4. The term "wrongfully" does not require bad

faith or tortious conduct on the part of a defendant. See Peterman v. State Farm Mut. Auto. Ins Co., 8 P.3d 549, 551 (Colo. Ct. App. 2000). However, not all compensatory damages owed by a defendant automatically are subject to an award of prejudgment interest. As the court explained in Dillen v. HealthOne, LLC, 108 P.3d 297, 299 (Colo. Ct. App. 2004): "[A] plaintiff is not entitled to prejudgment interest on all compensatory damages flowing from a wrongful withholding of property. Rather, a proper award of prejudgment interest applies only to that part of the compensatory damages awarded for money or property "wrongfully withheld." A. Plaintiff Cannot Recover Prejudgment Interest on Damages Awarded in Section A and Section B of the Verdict Form.

Plaintiff's demand for prejudgment interest in the amount of $48,014,408.02 is based on Plaintiff's theory that it is entitled to stack the jury's multiple damages awards in Sections A, B, and C of the Verdict Form. See Plaintiff's Motion at 5. However, Plaintiff cannot claim interest on an award of damages to which it is not entitled (i.e., Plaintiff's stacked $41,980,131 figure.). As explained in Part I.B, supra, Plaintiff is not entitled to collect multiple awards based on a single injury. See Lexton-Ancira, 826 P.2d at 823; Farmers, 805 P.2d at 426. Logically, if Plaintiff cannot stack the damages found by the jury, it cannot collect interest based on an amount of stacked damages as no value would have been "wrongfully withheld." See COLO. REV. STAT. ANN. § 5-12-102(1)(b) (prejudgment interest only allowed on money or value of property wrongfully withheld or owing); see also S. Park Aggregates, Inc. v. Nw. Nat'l Ins. Co., 847 P.2d 218, 227 (Colo. Ct. App. 1992) (holding that § 5-12-102 only applied to compensatory damages that were wrongfully withheld).

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In any event, as explained in Defendants' Renewed Motion, Plaintiff's breach of contract claims relating to the 16,000 miles of Oryx seismic data (submitted in Section A of the Verdict Form) and the 760 miles of Kerr-McGee seismic data (submitted in Section B of the Verdict Form) fail as a matter of law. See Renewed Motion, Parts I.A & I.B. Because Plaintiff's breach of license agreement claims fail as a matter of law, Plaintiff cannot collect either the $15,745,000 in damages found by the jury in Section A or the $968,750 in damages found by the jury in Section B of the Verdict Form. Thus, Plaintiff cannot demand prejudgment interest on awards to which it is not entitled to collect as nothing of value has been "wrongfully withheld." B. Plaintiff Cannot Recover Prejudgment Interest on the Damages Awarded in Section C of the Verdict Form Either. 1. The jury was not asked in Section C to find a specific amount of damages "wrongfully withheld" from Plaintiff.

Although the Court did award Plaintiff damages on the misappropriation claim submitted in Section C of the Verdict Form, Plaintiff is nevertheless barred from collecting prejudgment interest on the $25,266,381 in damages found by the jury as a "lump sum" under Section C. Under § 5-12-102(1)(b), a plaintiff may only collect prejudgment interest on "moneys or the value of all property after they are wrongfully withheld or after they become due to the date of payment or to the date judgment is entered, whichever first occurs." COLO. REV. STAT. ANN. § 5-12-102(1)(b) (emphasis added). But awarded damages are not necessarily subject to an award of prejudgment interest simply by virtue of their being compensatory in nature. See Dillen, 108 P.3d at 300; S. Park Aggregates, Inc., 847 P.2d at 227. Neither Section C of the Verdict Form nor the Court's instructions ask the jury to assign a specific amount of damages that were "wrongfully withheld" from Plaintiff as a result of

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Defendants' misappropriation of trade secrets. Rather, Instruction 3.6 of the Jury Instructions and Question C2 of the Verdict Form asked the jury to consider an award or damages sufficient or necessary to compensate Plaintiff for losses incurred or proximately caused by misappropriation of all the data. See Jury Instructions, Instruction 3.6 "Misappropriation of Trade Secrets--Compensatory Damages;" Judgment § C, at 5. Because the Court awarded Plaintiff damages on its misappropriation of trade secrets claim and because the jury was not instructed to specify what amount, if any, of the $25,266,381 was "wrongfully withheld" from Plaintiff, Plaintiff is not entitled to collect prejudgment interest simply because it received an award for compensatory damages. See Dillen, 108 P.3d at 300 (holding plaintiff bound by agreed-upon special interrogatories submitted to jury that failed to instruct jury to assign specific amount to those damages that were `wrongfully withheld'"); S. Park Aggregates, Inc., 847 P.2d at 227 (holding that trial court did not err in declining to award prejudgment interest on entire amount of compensatory damages awarded). 2. In any event, it is impossible to compute prejudgment interest for the various categories of seismic data subsumed in the Section C award.

To sustain the jury's damages award of $25,266,381 on Plaintiff's misappropriation claim, Plaintiff must argue either (a) that the jury considered all three categories of seismic data--i.e., the 16,000 miles of Oryx seismic data (category 1), the 760 miles of Kerr-McGee seismic data (category 2), and the 3,100 miles of alleged "bootleg" seismic data (category 3)--or (b) that the jury, in awarding damages for only categories 1 and 3, used some other per-mile figure not supported by the evidence. See Renewed Motion at Part II.A. In truth, because the Court submitted a lump-sum damages question, it is not possible to tell whether the jury only

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awarded damages for categories 1 and 3 (or for categories 1, 2 and 3) or what amount of damages the jury found for each of the categories they considered. See Id. Thus, even if the jury had made fact findings (or this Court could now make fact findings) as to what damages found for each category were wrongfully withheld, and when those damages were "wrongfully withheld," it is impossible to compute prejudgment interest for the categories of damage awards subsumed in Section C. For example, with respect to the 3,100 miles of so-called "bootleg" seismic data, the jury did find in response to Question C1(a)(i) that "Kerr McGee had possession of the data in 1996 when it shipped to Midcondata from Kerr McGee offices in Houston." However, that finding concerned only the category 3 so-called "bootleg" seismic data (not categories 1 or 2 ), and even as to that category 3 seismic data, the jury did not state that 1996 was the date from which the 3,100 miles of seismic data was "wrongfully withheld." See Judgment § C at 5. But even if the Court could rely on the jury's finding in Question C1(a)(i) to determine the date from which the 3,100 miles of seismic data was "wrongfully withheld," there is no way the Court could award prejudgment interest on any damages award for the 3,100 miles of seismic data because the jury was not asked to find damages separately as to the 3,100 miles of seismic data. Plaintiff asks this Court to use the jury's finding in Question C1(a)(1) to compute prejudgment interest for the entire $25,266,381 in damages found by the jury in Section C. But at a minimum, that award includes damages (in some unspecified amount) for the 16,000 miles of Oryx seismic data. There is no evidence supporting an award of prejudgment interest as to the 16,000 miles of seismic data from 1997 forward (as Plaintiff requests). Indeed, the 16,000 miles of seismic data, to the extent it was "misappropriated" (and thereafter, wrongfully withheld),

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could not have been "wrongfully withheld" until after the merger between Kerr-McGee and Oryx in February 1999. In no event is Plaintiff entitled to prejudgment interest on the entire $25,266,381 in damages found by the jury in Section C going all the way back to January 1997. CONCLUSION For the foregoing reasons, Defendants respectfully requests the Court to deny the Plaintiff's Motion to Alter or Amend the Judgment. Defendants also request all such other relief to which they are entitled. Dated this 19th day of October, 2007. Respectfully submitted, s/M. Antonio Gallegos____________ Scott S. Barker Gregory E. Goldberg M. Antonio Gallegos H OLLAND & H ART LLP 555 Seventeenth Street, Suite 3200 Post Office Box 8749 Denver, Colorado 80201-8749 Phone: (303) 295-8513 Fax: (303) 975-5416 [email protected] [email protected] [email protected] Marie R. Yeates Vinson & Elkins LLP 1001 Fannin Street, Suite 2500 Houston, Texas 77002-6760 Phone: 713.758.4576 Fax: 713.615.5544 [email protected] A TTORNEYS F OR D EFENDANTS

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CERTIFICATE OF SERVICE
I hereby certify that on October 19, 2007, I electronically filed the foregoing document with the Clerk of Court using CM/ECF system, which will serve, via electronic mail, the following: PELZ, BONIFAZI & INDERWISH, P.C. Harlan P. Pelz Daniele W. Bonifazi [email protected] [email protected]

s/ Randi L. Dixon

3779806_1.DOC

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