Free Reply to Response 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. 04-cv-1258-LTB-BNB STUDENT MARKETING GROUP, INC., Plaintiff, v. COLLEGE PARTNERSHIP, INC., f/k/a COLLEGE BOUND STUDENT ALLIANCE, INC., Defendant. REPLY TO COLLEGE PARTNERSHIP, INC.'S RESPONSE TO STUDENT MARKETING GROUP'S MOTION FOR SUMMARY JUDGMENT

Plaintiff Student Marketing Group, Inc. ("SMG"), by and through its counsel, hereby files this Reply to College Partnership, Inc.'s ("CPI's") Response to Student Marketing Group's Motion for Summary Judgment and in support thereof states as follows: I. INTRODUCTION CPI's Response to SMG's Motion for Summary Judgment fails to overcome the evidence offered by SMG in support of its Motion for Summary Judgment. In fact, CPI either expressly concedes the facts which support SMG's motion or fails to provide any response or factual opposition to the vast majority of SMG's motion. Specifically, CPI concedes or fails to dispute the following: · The parties entered into the List Rental Agreement ("Rental Agreement") and List Rental Renewal Agreement ("Renewal Agreement") (collectively, the

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"Agreements"). See Agreements, Exhibits A and B to Counterclaims; CPI's Response Br., § III.B., p. 6. · The Agreements contain an integration clause and a clause expressly disclaiming all prior representations or warranties whether oral or written. See Agreements, § XX. CPI paid SMG a flat monthly rental fee during the 2 years covered by the Agreements as specified in the Agreements. Rental Agreement § I.A.; Renewal Agreement, § IV.A.; Ex. 1, Anderson Dep., p. 199. This fee entitled CPI, in its discretion, to request up to 7.2 million names under the Rental Agreement and up to 9.0 million names under the Renewal Agreement. Agreements, § I.A.; Ex.1, Anderson Dep., p. 136. Once CPI requested names from SMG, SMG always supplied the requested names. See Plaintiff's Motion for Summary Judgment, Ex. 2 at pp. 15-16. SMG supplied CPI with 7,473,910 names under the Rental Agreement and 8,494,066 under the Renewal Agreement. See Plaintiff's Motion for Summary Judgment, Ex. 1, ¶ 12. There is no direct relationship between the number of names specified in the Agreements and the size of SMG's database because CPI requested the same records more than once during a contract year. See Plaintiff's Motion for Summary Judgment, Ex. 2, pp. 30-40. SMG's records yielded a higher response rate than CPI's other student list vendors. See Ex. 1, Anderson Dep., pp. 125-26; CPI's Response Br., § III.C.2.2; Plaintiff's Motion for Summary Judgment, Ex. 2, pp. 47-48, 100-01 and Ex. 3, pp. 94-96, CPI 00143. SMG was CPI's best performing list economically. See Ex. 1, Anderson Dep., pp. 109-11; CPI's Response Br., § III.C.2.2; Plaintiff's Motion for Summary Judgment, Ex. 2, pp. 47-48, 100-01 and Ex. 3, pp. 94-96, CPI 00143. SMG's marketing brochure states that SMG will refund customers 15 cents per piece of returned mail if certain conditions are met by the customer, including providing SMG with the mail that was returned as undeliverable. Plaintiff's Motion For Summary Judgment, Ex. 1, ¶ 17 and Ex. C, SMG 00011616. CPI never met those conditions by providing SMG with a single piece of returned mail as required by the specified by the marketing materials to avail itself of the guarantee. Plaintiff's Motion For Summary Judgment, Ex. 1, ¶ 18 and Ex. 3, p. 98. 2

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The Agreements contains a one-year statute of limitations provision. Agreements, § VIII.B.; CPI's Response Br., § III.F Claims under the Agreements must be brought within one year from when CPI knew or should have known of a claimed breach. Agreements, § VIII.B.; CPI's Response Br., § III.F. CPI received regular reports from its mail house and vendor detailing list performance. See Plaintiff's Motion for Summary Judgment, Ex. 3, pp. 14-15, 46-47, 55-70. CPI did not file suit under the Rental Agreement until late July 2004. See Counterclaims; CPI's Response Br., § III.F. The limitation of damages provision in Agreements is enforceable. Agreements, § VII.B.; CPI's Response Br., § III. E. CPI failed to pay SMG for final 3 outstanding invoices. Plaintiff's Motion for Summary Judgment, Ex. 3, pp. 49-50. CPI's only explanation for this failure to pay is CPI's assertion that SMG committed a prior breach. Id.; CPI's Response Br., § III.G. Instead of refuting these facts set forth in SMG's Motion and supported by the

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record in this case, CPI offers only broad and general conclusory statements which are unsupported by the record. Examples of CPI's continued failure to support its conclusory assertions ­ most of which are flatly contradicted by its own witnesses ­ include assertions that: · · · · · · A large percentage of the names were not deliverable or were duplicates of other names in the same list. Numerous names were either offensive or clearly made up. SMG's consent decrees with the FTC and the New York Attorney General reduced the number of names SMG had available to lease to CPI. CASS failures equate to an undeliverable address. SMG claims it could provide a single record per month to CPI and not breach the Agreements. 11% of SMG's records were unusable and SMG does not dispute this assertion. 3

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As SMG demonstrates below, each of these assertions made by CPI in its Response Brief are false and CPI has not offered and cannot offer specific facts supported by citation to the record which support such contentions. Even considering the inferences afforded to CPI as the nonmoving party to SMG's Motion for Summary Judgment, there is no issue of material fact and SMG is entitled to Summary Judgment as a matter of law. II. SMG IS ENTITLED TO SUMMARY JUDGMENT BECAUSE CPI HAS PUT FORTH NO EVIDENCE THAT THERE IS A GENUINE ISSUE OF MATERIAL FACT A summary judgment motion will establish whether there is evidence to support a party's factual claims. "To withstand summary judgment, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial." L & M Enterprises, Inc. v. BEI Sensors & Systems Co., 231 F.3d 1284, 1287 (10th Cir. 2000); see also Harrison v. Sahatoyas, LLC, 253 F.3d 552, 557-58 ) (10th Cir. 2001). Unsupported conclusory allegations do not create a genuine issue of material fact. L & M Enterprises, Inc., 231 F.3d at 1287. In response to SMG's Motion for Summary Judgment, CPI has failed to come forward with any specific facts supported by admissible evidence showing that there is a genuine issue for trial. Instead, CPI's response to SMG's Motion for Summary Judgment contains little more than unsupported conclusory allegations. Because there are no genuine issues of material fact, SMG is entitled to summary judgment as a matter of law. A. CPI's Counterclaim for Breach of Contract Fails. In an effort to overcome SMG's Motion for Summary Judgment on CPI's breach of contract claim, CPI distorts both the facts and the language of the Agreements to argue that SMG did not supply the appropriate quantity and quality of student records. CPI's arguments fail, however, because they fly on the face of the plain language of the Agreements and the undisputed facts. 4

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1.

SMG Supplied The Appropriate Quantity of Records.

The plain language of the Agreements provides that CPI could request up to 7.2 million names under the Rental Agreement and up to 9 million names under the Renewal Agreement. As the Court noted when determining SMG's Motion to Dismiss, the Agreements state that SMG will provide "up to" the maximum number of records on an "as needed basis" (Agreements, Section IV.A), and that it was up to CPI, in its discretion, to request the full number of records from SMG. See Order dated April 18, 2005 Denying SMG's Motion to Dismiss ("April 18, 2005 Order"), p.3. It is undisputed that the course of dealings between the parties was for CPI to request all of SMG records for certain zip codes and for SMG to supply them. See Plaintiff's Motion for Summary Judgment, Ex. 2, pp. 14-17. CPI concededly requested many names more than once, Id., pp. 38-39; Ex. 1, Anderson Dep., p. 55, so its assertion that SMG had to supply 9 million unique names and could not do so because its database contained only 5.7 million names (as the Renewal Agreement itself states) is simply a red herring. Accordingly, to establish that SMG breached the Agreements for failing to supply the appropriate quantity of records, CPI must show that CPI requested records from SMG and SMG refused to supply them. As an initial matter, CPI has offered no facts to establish that SMG refused to supply CPI with names when CPI requested them. In fact, the opposite is true -- SMG always supplied CPI with all of its records requested by CPI. See Plaintiff's Motion for Summary Judgment, Ex. 2, pp. 15-16. The only argument offered in response to this position is CPI's bald assertion that the Agreements are ambiguous as to how many records SMG was required to supply. Attempting to create an ambiguity when none exists does not create a material issue of fact such that the non-moving party can survive summary judgment. See Castleglen, Inc. v. Resolution Trust Corp., 984 F.2d 1571, 1581 (10th Cir. 1993) (affirming grant of summary

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judgment because an ambiguity in a contract cannot be created by the mere assertion of a party). To the contrary, the Agreements state that SMG was to supply "up to" 7.2 and "up to" 9 million records to CPI on an "as needed basis." There is nothing ambiguous about this language. As discussed in the April 18, 2005 Order, CPI was in control of determining which records it requested each month. If CPI desired more records from SMG, all it had to do was request them. CPI cannot assert that SMG breached the Agreements because CPI did not request enough records. By way of analogy, the Agreements operated much like agreements for cellular telephone (flat) usage. CPI's own witnesses conceded that the Renewal Agreement was a flat fee agreement. See Ex. 1, Anderson Dep., p. 199; Plaintiff's Motion for Summary Judgment, Ex. 2, p. 71. The customer pays a flat monthly fee for up to a maximum number of airtime minutes. It is up to the customer to maximize the full benefit of the contract by using all of its airtime minutes. If the cellular telephone customer does not use all of its available airtime minutes, the cellular provider is not in breach of the contract. According to CPI, however, SMG breached the contract because CPI did not request more records from SMG. This position is simply untenable. In an effort to overcome this obstacle, CPI appears to argues that SMG should be required to credit CPI for records CPI did not request from SMG. CPI's Response Br., § III.B.1, p. 8. This argument is completely at odds with the language of the Agreements and the practices of the parties. Nowhere do the Agreements state any procedure or requirement that SMG provide a refund to CPI for CPI not requesting enough records. Instead, CPI paid a flat monthly fee to request up to 7.2 million records under the Rental Agreement and up to 9 million records under the Renewal Agreement. CPI's failure to request the full 7.2 million records and 9 million

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records does not equate to SMG's breach of the Agreements and does not require that SMG issue a refund to CPI. Instead of relying upon the plain language of the Agreements CPI attempts to salvage its breach of contract counterclaim by relying heavily on a typographical error in a letter Mr. Stumacher of SMG sent after the Agreements expired. See CPI's Response Br., Ex. D. CPI cites to this letter at least three times in its Response Brief to argue that CPI was to receive 50% more names under the Renewal Agreement and that the Renewal Agreement dictated a price-per piece rate. This argument fails because: (1) it is contrary to plain language of Agreements; (2) it is based upon a letter written eleven months after Renewal Agreement was signed by the parties; and (3) clearly based upon a typographical or math error. Specifically, Mr. Stumacher was asked in his deposition whether he sent Mr. Grace a letter stating that SMG was to supply 50% more names under the Renewal Agreement. Mr. Stumacher responded that the 50% figure in the letter was a mistake and that he meant to say 25% since the contract went from 7.2 Million records to 9 Million records, an increase of 25% more names. See Ex. 2, Stumacher Dep., pp. 232-33. 2. SMG Supplied the Appropriate Quality of Records.

Like CPI's breach of contract claim based on the quantity of records, CPI's breach of contract claim based on the quality of records supplied by SMG is unsubstantiated and inconsistent with the terms of the Agreements. In an effort to overcome SMG's motion for summary judgment, CPI baldly asserts that SMG provided poor quality records. CPI, however, offers no citation to admissible evidence to support this conclusion. To the contrary, CPI offers only conclusory statements that are unsupported by any evidence. CPI's conclusory allegations do not create a genuine issue of material fact, see, e.g., L&M Enterprises, Inc., 231 F.3d at 1287, particularly in light of the overwhelming evidence to the contrary.

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Specifically, CPI's own witnesses testified that SMG was one of CPI's best performing list both economically and in terms of response rate. See Ex. 1, Anderson Dep., pp. 109-11; Plaintiff's Motion for Summary Judgment, Ex. 2, pp. 47-48, 100-01 and Ex. 3, pp. 9496, CPI 00143. Further, CPI has not and cannot offer admissible evidence about duplicate names or undeliverable names that SMG sent to CPI. In fact, SMG's expert Mr. Hiller testified that he was offering no such opinions. See Ex. 3, Hiller Dep., p. 14. Even if there were not overwhelming evidence that SMG supplied high quality records and a dearth of evidence supporting CPI's claims to the contrary, CPI's assertion that SMG was required to supply records that were 98% accurate is inconsistent with the terms of the Agreements and is barred by the parol evidence rule. CPI asserts that the parol evidence rule does not apply because extrinsic evidence that does not contradict but explains the meaning of the terms of the contract is admissible. While this may be an accurate statement of the law, this principle is inapplicable here. The Agreements are fully integrated written contracts that disclaim all prior representations and warranties whether written or oral. Agreements, § XX. Further, the Agreements state that neither the accuracy or completeness of the records are guaranteed. Agreements, § VII. CPI's Rule 30(b)(6) witness conceded that the Agreements addressed ­ and contradicted ­ the alleged misrepresentations. Plaintiff's Motion for Summary Judgment, Ex. 3, pp. 33-35. Accordingly, CPI's attempt to introduce extrinsic evidence of alleged representations regarding the quality of SMG's lists which are inconsistent with the express terms of the Agreements are barred by the parol evidence rule. B. CPI's Counterclaim for Misrepresentation Fails. SMG asserts numerous legal and factual basis in its Motion for Summary Judgment as to why CPI's counterclaim for negligent misrepresentation must fail, i.e.: (i) there is no admissible evidence supporting CPI's claim; (ii) the undisputed evidence shows that SMG

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provided the best performing lists for CPI; (iii) CPI ignores the full "guarantee" statement contained in SMG's marketing brochure and failed to comply with it even if it were binding; (iv) CPI's own expert concedes that the full 98% accuracy guarantee contained in SMG's marketing brochure is not misleading; and (v) given both the language in the Agreements and the specific requirements contained in the marketing brochure, CPI cannot reasonably rely on the alleged misrepresentation. In response, CPI has offered no specific facts showing that there is a genuine issue for trial. Accordingly, SMG's Motion for Summary Judgment should be granted. The crux of CPI's argument on its claim for negligent misrepresentation is based on the guarantee contained in SMG's marketing materials. See CPI's Response Br., p. 4-5. Rather than considering the guarantee in its entirety, CPI attempts to isolate certain portions of the guarantee to support its negligent misrepresentation claim. Even assuming CPI's negligent misrepresentation claim is not precluded by the terms of the Agreements, CPI's claimed reliance on piecemeal portions of the marketing brochure is inappropriate. The guarantee contained in the market brochure states ­ in full:

Guarantee of Deliverability . . . .
No list can be 100% accurate due to constant changes in the population. Each list is guaranteed separately as indicated in this catalog. Student Marketing Group will refund 15 cents for each piece of undeliverable mail in excess of the guarantee as long as the list is mailed within 30 days of the date you receive the files. The undeliverable mail pieces must be returned to Student Marketing Group within 90 days of our shipping date. Telephone numbers and e-mail addresses are not guaranteed. Student Marketing Group has done everything in its power to ensure the accuracy of its lists, but we cannot guarantee the success of your mailing. We are not liable for any damages sustained through the use of our lists and in no event shall our liability exceed the cost of the list. Plaintiff's Motion For Summary Judgment, Ex. 1, Stumacher Aff., ¶ 17; Ex. C, SMG 00011616.

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By its terms, the guarantee requires CPI to produce returned mail in order to be entitled to a credit. CPI concedes that it has not produced a single piece of mail that was returned to CPI as undeliverable. CPI's Response Br., § III.C.2, pp. 13-14. Confronted with this reality, CPI instead argues that return of mail should be unnecessary and is not practical and that somehow this guarantee is illusory. This argument fails for both factual and legal reasons. As factual matter, CPI's own expert conceded not only that guarantee as a whole is not misleading, Plaintiff's Motion for Summary Judgment, Ex. 5, pp. 94-96, but also that CPI could have taken advantage of the guarantee had it chose to do so. Id. As a legal matter, the sole case that CPI cites to support this argument, United States v. Fredette, 315 F.3d 1235 (10th Cir. 2003), is completely inapposite. Contrary to CPI's representation, Fredette is not a case where the seller made it difficult for consumer to obtain reimbursement of "refund voucher," but rather is a case where the seller was involved in a fraudulent scheme to sell vouchers that it never intended to honor. Here, there is absolutely no evidence that SMG did not intend to honor its refund policy. CPI also asserts ­ for the first time ­ that "up to 11%" of CPI's mailings were wasted, CPI's Response Br., § III.B.2, p. 9, without offering a shred of admissible evidence to support this critical conclusion. Indeed, CPI does not even bother to cite its own experts, whose testimony, even if admissible, would not support this assertion.1 Because CPI did not comply with the requirements of the guarantee, which guarantee CPI's expert admits was not misleading, see Plaintiff's Motion for Summary Judgment, Ex. 5, pp. 94-96, and because the guarantee is inconsistent with the fully integrated written Agreements, CPI cannot be said to have reasonably relied on the guarantee. Accordingly, CPI has failed to offer any evidence which show that there
For example, based on the results of the analysis of CPI's experts, the number of "true duplicates" supplied to CPI by SMG in 2004 is only 1183. This represents .009% of the records CPI can specifically attribute to SMG during this time period.
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is a genuine issue for trial and SMG is entitled to summary judgment on CPI's claim for negligent misrepresentation. C. CPI's Counterclaim for Concealment Fails. CPI makes only two arguments in an effort to refute SMG's Motion for Summary Judgment on CPI's counterclaim for concealment. Both of CPI's arguments are without merit and are unsupported by the evidence. First, CPI argues that SMG did not have 9 million records available for delivery to CPI because SMG entered into consent decrees with the FTC and New York Attorney General. CPI's Response Br., § III.D., p. 17. This argument is fatally flawed for numerous reasons: (1) the consent decrees are publicly available and were specifically discussed with CPI, Ex. 2, Stumacher Dep., pp. 208-209; (2) CPI provides not a shred of evidence to supports its assertion that the consent decrees had any impact on the number of names available; (3) CPI's argument is at odds with the practice of the parties because CPI would routinely request SMG to supply the same records multiple times during each contract year,2 so SMG did not need to maintain a database that contained more than or a full 9 million records; and (4) SMG specified in clear language in the Renewal Agreement itself that its database contained ­ not 9 million names ­ but only 5.7 million records and that SMG anticipated acquiring only an additional 1 to 2 million more. Renewal Agreement § IV.C (p. 3).3 Accordingly, CPI's first argument to avoid Summary Judgment on the concealment count fails. Second, CPI argues that SMG concealed its CASS certification reports which CPI argues are inconsistent with SMG's marketing materials. CPI's Response Br., § II, p. 4 and §
In fact, doing so may have increased CPI's response rate. See Ex. 1, Anderson Dep., pp. 51, 55; Plaintiff's Motion for Summary Judgment, Ex. 2, pp. 38-39. 3 CPI has offered no evidence that the statements in the Renewal Agreement regarding size of database are untrue.
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III.D., pp. 16-17. The principal flaw in this argument is that it is based on a faulty premise. The express premise of CPI's argument is that if an address fails CASS certification, then it is undeliverable. Id., § II., p. 4, § III.D., p. 16. As CPI's own witnesses conceded, this assertion is incorrect. If an address is CASS certified, then the address is recognized by the United States Postal Service as a valid address. Ex. 2 Stumacher Dep., pp. 67-68. But, a particular record can fail CASS certification and still be deliverable. See Ex. 1, Anderson Dep., pp. 79-83; Plaintiff's Motion for Summary Judgment, Ex. 5, pp 53-58, 79-83. Since CASS certification does not correlate to deliverability, and SMG made no statements about CASS certification, this argument fails. Even if CASS certification correlated to deliverability, the Agreements do not contain a 98% guarantee. Instead, they state that "neither the accuracy nor completeness of the information . . . is guaranteed." Agreements § VII. Further, as established above, even if the 98% accuracy statement in SMG's marketing materials were somehow applicable to this transaction, CPI has failed to avail itself of the guarantee. See infra, § II.B. D. The Agreements Between the Parties Preclude the Damages Sought by CPI. Even assuming SMG breached the Agreements, the Agreements preclude much of CPI's claim for damages. Notably, CPI does not argue that the limitation of damages provision is unenforceable. Instead, in an effort to avoid the plain language of the Agreements which provides that: IN NO EVENT SHALL SMG BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES, ARISING OUT OF THE PERFORMANCE OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF GOOD WILL AND LOST PROFITS OR REVENUE, Agreements § VIII.B. (emphasis in original), CPI claims that its damages for lost profits and income somehow represent "direct" or "expectancy" damages. However, the damages that CPI claims, e.g., "lost

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profits suffered as a result of poorly attended seminars and losses resulting from loss of trust in CPI following poorly attended seminars," are plainly precluded by the Agreements. Agreements, VIII.B. Regardless of how CPI characterizes (or now recharacterizes) its alleged damages, CPI cannot reasonably establish that the types of damages it seeks are anything other than "lost profits or revenue" which the Agreements clearly preclude. In any event, CPI's maximum recoverable damages are limited to the amounts paid to SMG under the Agreements. Id. E. CPI's Counterclaims Based on an Alleged Violation of the Rental Agreement are Time Barred. CPI's alleged Counterclaims based on the Rental Agreement are barred by the one-year limitations period contained in the Agreement. As an initial matter, CPI concedes that its claims are governed by a one-year statute of limitations. See CPI's Response Br., p. 18. Further, claims for breach of contract, misrepresentation and concealment are deemed to accrue within one year of the date when the action complained of is discovered or, with the exercise of reasonable diligence, should have been discovered. See C.R.S. § 13080-108(3) & (6); see also, Zurick v. First Am. Title Ins. Co., 833 F.2d 133, 136 (10th Cir. 1987). Accordingly, the question becomes whether CPI discovered, or with the exercise of reasonable diligence should have discovered, its alleged claims against SMG based on the Rental Agreement. In the course of deposition testimony, CPI states that it discovered problems with SMG's lists during the course of the 2002-03 contract year. See Plaintiff's Motion for Summary Judgment, Ex. 3 at 61-65; Ex. 3, 194. Moreover, given that CPI received information from SMG on a regular basis and that it routinely obtained information from its mail house analyzing the performance of each of its mail vendors, Id., Ex. 2, pp. 14-15, 46-47, 55-70, CPI knew, or, with the exercise of reasonable diligence, should have known, of any potential claims against SMG

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under the Rental Agreement by the end of the contract year (May, 2003 at the latest). Accordingly, CPI's counterclaims based on the Rental Agreement are time-barred and SMG is entitled to summary judgment. F. SMG is Entitled to Summary Judgment on its Breach of Contract Claim Against SMG CPI does not dispute that it failed to pay SMG for its final three invoices. The only explanation offered by CPI in response to SMG's Motion for Summary Judgment on its claims against CPI for CPI's failure to pay SMG for the outstanding invoices is CPI's assertion that SMG committed a prior breach. See CPI's Response Br., § III.G., p. 19. The undisputed facts establish that SMG did not breach the Agreements. Rather, CPI employed its regular debtavoidance tactic, the assertion of counterclaims against its creditors, in an effort to avoid and/or delay its payment obligations. Accordingly, CPI is not entitled to a set off and SMG is entitled to summary judgment on its claims against CPI. III. CONCLUSION WHEREFORE, SMG respectfully requests this Court to grant its Motion for Summary Judgment, dismiss CPI's counterclaims with prejudice and award SMG $127,462.50 plus interest and its attorney fees and expenses.

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Dated: July 20, 2005

Respectfully submitted, s/R. Daniel Scheid ______________ LEWIS SCHEID LLC R. Daniel Scheid River Point Building 2300 Fifteenth Street, Suite 320 Denver, CO 80202 Telephone: (303) 534-5040 Facsimile: (303) 534-5039 KIRKPATRICK & LOCKHART NICHOLSON GRAHAM LLP Patrick J. McElhinny, Esquire Dianna S. Karg, Esquire 535 Smithfield Street Henry W. Oliver Building Pittsburgh, PA 15222 Telephone: (412) 355-6500 Facsimile: (412) 355-6501 Counsel for Plaintiff, Student Marketing Group, Inc.

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CERTIFICATE OF SERVICE CERTIFICATE OF SERVICE I hereby certify that on this 28th day of June, 2005, I electronically filed the foregoing REPLY TO COLLEGE PARTNERSHIP, INC.'S RESPONSE TO STUDENT MARKETING GROUP'S MOTION FOR SUMMARY JUDGMENT with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following email addresses: Rosemary Orsini, Esquire Brian Matise, Esquire BURG, SIMPSON, ELDREDGE, HERSH, JARDINE, P.C. [email protected] [email protected]

s/Claudia Cooper

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