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

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Sid Leach (#019519) Andrew F. Halaby (#017251) Monica A. Limón-Wynn (#019174) SNELL & WILMER L.L.P. One Arizona Center 400 E. Van Buren Phoenix, AZ 85004-2202 Telephone: (602) 382-6372 Attorneys for Plaintiff Hypercom Corporation [email protected] [email protected] [email protected] IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Hypercom Corporation, Plaintiff, vs. Omron Corporation, Defendant. HYPERCOM CORPORATION'S MOTION FOR SETTLEMENT CONFERENCE (Expedited Ruling Requested) No. CV 04-0400 PHX PGR

Pursuant to Rule 16(c)(9) of the Federal Rules of Civil Procedure, Plaintiff Hypercom Corporation ("Hypercom") hereby requests this Court to order and command the parties to appear and participate in good faith at a settlement conference before a either a private mediator or a Magistrate Judge pursuant to 28 U.S.C. § 636 (b)(1)(A) and LRCIV 72.2(a)(5) on either September 18, 2006 or September 26, 2006. Since August 15, 2006, counsel for Hypercom and counsel for Omron Corporation ("Omron") have been engaged in discussions regarding participating in a settlement conference to determine whether the action could be resolved. The parties have also discussed the importance of conducting the settlement conference "sooner rather than later." The parties have even discussed preferences for several private mediators and have learned that at least two of the mediators are available on September 18, 2006 and September 26, 2006. Notwithstanding all of this discussion, Omron's counsel has been
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careful to point out, however, that Omron has not yet given its "commitment to participate" in a settlement conference. Counsel for Omron also had informed counsel for Hypercom that they would make the initial contact with counsel for Verve to inquire whether the Counterdefendants in the action between Hypercom and Counterdefendants Verve, Simon, Galasso & Frantz, PLC, Raymond Galasso, and Kevin Imes (collectively "the Verve Counterdefendants") pending in the District of Arizona as CIV05-0365-PHX-FJM ("the Verve action")1 would consider also participating in the settlement conference, with the objective to determine whether a more comprehensive or "global" settlement could be reached among all the parties. The parties agreed, however, that even if the Verve Counterdefendants declined or refused to participate, a settlement conference would nonetheless be a productive use of time for Hypercom and Omron. Counsel for

Hypercom learned today that Omron's counsel spoke with an attorney representing the Verve Counterdefendants, and we are informed that the Verve Counterdefendants would also be interested in participating in the settlement conference. Hypercom is concerned that yet another week or two will pass before Omron gives its "commitment to participate" in a settlement conference. Given the time-sensitive nature of conducting the settlement conference by the end of the month, Hypercom requests the Court compel the parties to participate in a settlement conference with one of the agreed-upon mediators on either September 18, 2006 or September 26, 2006, or in a settlement conference at which a court-appointed magistrate presides over the conference. Hypercom further requests the Court require the participation in the settlement conference by a high-level executive from each party having full settlement authority.

Contemporaneously with this Motion, Hypercom also has moved in the Verve action for an Order compelling Verve to participate in a settlement conference. (Doc # 291.)
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Hypercom suggests that directing the parties' participation in the settlement conference pursuant to these terms would better enable the parties to fully determine whether resolution of this action can be reached and the lawsuit settled. Hypercom intends to have its Chief Financial Officer attend the settlement conference. In Hypercom's view, the individuals who have previously participated on behalf of Omron may have a personal stake in not reaching a settlement, since the individuals in question recommended that Omron pursue the deal with Verve in the first place. Tetsuyuki Nakano, an executive director for Omron, has been involved in all prior settlement discussions, but he is the Omron representative who recommended to Omron's headquarters in Japan that the deal with Verve should be approved. Herbert V. Kerner has also been involved in all prior discussions, and he is an attorney at Baker & Daniels who is primarily responsible for facilitating the relationship between Omron and Verve LLC that participated this litigation. Mr. Nakano testified that he relied upon Mr. Kerner's recommendation that Verve was trustworthy. The chances of settlement will be improved if each party brings a high level executive with full settlement authority who was not involved in any of the initial decisions that led to this litigation. Hypercom's Chief Financial Officer fits this requirement, because he joined the company relatively recently and can view the case objectively. Omron should be required to send an Omron business person other than Mr. Nakano.

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CONCLUSION Hypercom respectfully requests that the Court order the parties to "commit to participate" in good faith and with an objective to settle and resolve the lawsuit in a settlement conference to be held on September 18, 2006 or September 26, 2006 before one of the agreed-upon private mediators, or before a magistrate judge appointed by this Court. RESPECTFULLY SUBMITTED this 1st day of September, 2006. SNELL & WILMER L.L.P.

By s/Monica A. Limón-Wynn Sid Leach Monica A. Limón-Wynn SNELL & WILMER L.L.P. One Arizona Center Phoenix, AZ 85004-2202 Attorneys for Plaintiff Hypercom Corporation

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CERTIFICATE OF SERVICE I hereby certify that on September 1, 2006, I electronically transmitted the attached document to the Clerk's Office using the ECF System for filing and transmittal of a Notice of Electronic Filing to the following ECF registrants: David P. Irmscher John K. Henning, IV BAKER & DANIELS 300 N. Meridian Street, Suite 2700 Indianapolis, IN 46204 Phone: 317-237-1317 Fax: 317-237-1000 [email protected] [email protected] Paul Moore Ray K. Harris FENNEMORE CRAIG, P.C. 3003 N. Central Avenue, Suite 2600 Phoenix, AZ 85012-2913 Phone: 602-916-5414 Fax: 602-916-5614 [email protected] [email protected] Attorneys for Defendant Omron Corporation s/ Monica A. Limón-Wynn

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