Free Motion for Miscellaneous Relief - District Court of Arizona - Arizona

EXHIBIT A

Case 2:04-cv-00400-PGR

Document 161-2

Filed 04/05/2007

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Matthew A. C. Zapf (pro hac vice) A. Colin Wexler (pro hac vice) GOLDBERG KOHN 55 East Monroe Street, Suite 3300 Chicago, Illinois 60603-5792 Telephone: 312.201.3914 Facsimile: 312.863.7414 [email protected] [email protected] H. Michael Clyde (009647) PERKINS COIE BROWN & BAIN P.A. 2901 North Central Avenue, Suite 2000 Phoenix, Arizona 85012-2788 Telephone: 602.351.8000 Facsimile: 602.648.7000 [email protected] Attorneys for Omron Corporation UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

Hypercom Corporation, Plaintiff, v. Omron Corporation, Defendants.

No. CV 04-0400-PHX-PGR

DEFENDANT OMRON CORPORATION'S DESIGNATION OF POTENTIAL NON-PARTIES AT FAULT

(Assigned to Hon. Paul G. Rosenblatt)

Pursuant to A.R.S. § 12-2506(B) and Ariz. R. Civ. P. 26(B)(5), Omron Corporation ("Omron") serves notice that Verve LLC ("Verve") may have caused, contributed, and/or may be wholly or partially responsible for the damages, if any, alleged by Hypercom

Case 2:04-cv-00400-PGR

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Corporation ("Hypercom"). Because this notice relates only to non-parties, the fault of the plaintiff named in this action is not addressed. 1. Verve LLC 8127 Mesa Drive, #B-206-67 Austin, Texas 78759 Verve is a Texas limited liability company. It is a patent holding company that is in the business of prosecuting infringers of its patents. Verve engages in its business by obtaining assignments of patents and then taking full responsibility and charge of protecting those patents in the marketplace. Hypercom itself believed from the outset of this case that Verve played the primary role in causing Hypercom's alleged damages. Indeed, when Plaintiff filed this complaint in February 2004, Verve was the only named defendant. Months later, in July 2004, Plaintiff filed an amended complaint adding Omron as an additional defendant. It was not for more than another year, in August 2005, that Plaintiff voluntarily dismissed its claims in this action against Verve. Prior to the dismissal of Verve in this lawsuit, Hypercom took extensive discovery from Verve. Following the dismissal of Verve from the instant suit, Hypercom proceeded on similar and/or identical theories of liability against Verve in a parallel action between Verve and Hypercom in the District court of Arizona, captioned Verve LLC v. Hypercom Corporation, Case No. CV-05-365-PHX-FJM. In that suit, Hypercom obtained a final judgment on some of its claims against Verve for malicious prosecution and abuse of process, and obtained $223,500 in compensatory damages for the expenses it claimed to
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have incurred. Hypercom now improperly seeks to recover these damages a second time, this time from Omron. In all of the secondary liability theories brought by Hypercom

against Omron, it is Verve that is alleged to be primarily liable and responsible for the underlying tortious activity. Accordingly, the fault of Verve in the conduct alleged in this case is well known to Hypercom. In all of the secondary liability theories brought by Hypercom against Omron, it is Verve that is alleged to be primarily liable and responsible for the underlying tortious activity. It is a common business practice to assign patents to a third party for the purpose of protecting those patents in the marketplace. In this case, Verve was entirely responsible for all aspects of prosecuting infringers of the Omron patents assigned to Verve, including all pre-trial investigation and litigation strategy. To the extent that Omron is found liable for Verve's tortious activity, Verve is the party primarily, if not entirely, at fault. If it is established that Verve failed to conduct pre-filing investigation of Hypercom's infringement, as Hypercom has alleged, Omron had no knowledge of Verve's failure.

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Conclusion Since the inception of this suit, Hypercom has believed that Verve played the primary role in causing its damages, and it has already obtained relief against Verve on the theories it seeks to promote here. Omron reserves the right to add other nonparties to Omron's designation as appropriate. Respectfully submitted, By: /s/ Matthew A.C. Zapf Matthew A.C. Zapf A. Colin Wexler GOLDBERG KOHN 55 East Monroe Street, Suite 3300 Chicago, Illinois 60603-5792 H. Michael Clyde PERKINS COIE BROWN & BAIN P.A. 2901 North Central Avenue, Suite 2000 Phoenix, Arizona 85012-2788 Attorneys for Omron Corporation

April 5, 2007

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Case 2:04-cv-00400-PGR

Document 161-2

Filed 04/05/2007

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