Free Memorandum - District Court of Arizona - Arizona

ROSHKA DEWULF & PATTEN , PLC
ONE ARIZONA CENTER EAST VAN BUREN STREET , SUITE PHOENIX , ARIZONA 85004
400 TELEPHONE FACSIMILE (602) (602)

800

256- 6100 256- 6800

Name and State Bar No.

John E. DeWulf, No. 006850 dewulf~rdp- law. com Darlene M. Wauro , No. 014697 wauro~rdp- law. com

Attorneys for Defendant Golden Peanut Company, LLC

IN THE UNITED STATE DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
LEMELSON MEDICAL , EDUCATION & RESEARCH FOUNDATION , LIMITED PARTNERSHIP
No. CIV 00- 066l- PHX- HRH

Plaintiff

ALCON LABORATORIES , INC. , et aI.
Defendants.

DEFENDANT GOLDEN PEANUT COMPANY , LLC' S MEMORANDUM IN SUPPORT OF MOTION FOR AWARD OF ATTORNEYS' FEES AND RELATED NONTAXABLE EXPENSES

Pursuant to Local Rule 54. 2(b )-( e), Defendant ,

Golden Peanut Company, LLC

Golden Peanut" ), hereby submits supporting documentation for its Motion for Recovery

of Attorneys ' Fees and Related Non- Taxable Expenses filed on February 16

2006.

This

Memorandum along with the accompanying exhibits and declarations , demonstrate that the
attorneys '

fees and

expenses requested in the

total amount

of $87 242. 90 were both
action.

reasonable and necessary for Golden Peanut to prevail in this

This case is

exceptional" under 35 U. C. 9 285 and an award of attorneys ' fees and expenses is

appropriate.

Attached hereto are the following exhibits: Counsel's Statement of Consultation
(Exhibit A); the engagement agreement between Golden Peanut and its counsel ,
Sterne

Kessler , Goldstein & Fox P. LLC. (" Sterne Kessler ) (Exhibit B); an Itemized Statement
of Legal Services

(Exhibit C); and the Declaration of David
Document 538 Filed 04/03/2006

K. S. Cornwell Regarding

Case 2:00-cv-00661-HRH

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Attorneys ' Fees (Exhibit D).

ELIGIBILITY
Jud2ment and Authorization for Recovery of Attorneys ' Fees
Golden Peanut is the prevailing party in this case. On February 2 , 2006, Judgment

was entered in favor of all Defendants , including Golden Peanut , and against the Lemelson
Medical , Education & Research Foundation Limited Partnership (" Lemelson Foundation
dismissing this case in

its entirety, with prejudice.

As set forth

in

Golden Peanut'

February 16 ,

2006 Motion for Recovery of Attorneys ' Fees , Golden Peanut is entitled to

recovery of its attorneys ' fees and related non- taxable expenses under 35 U. C. 9 285 , as
the prevailing party in an " exceptional" case.
35 U.
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C. 9 285 , provides

that " (t)he

court in exceptional cases

may award

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reasonable attorney fees to the prevailing party.

The purpose of 9 285 is , in a proper case

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and in the discretion of the trial judge , to compensate the prevailing party for its monetary
outlays in the prosecution or defense of the
Hormel suit."

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Central Soya Co. ,

Inc.

v.

Geo. A.

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Co. 723 F. 2d 1573 , 1578 (Fed. Cir. 1983) (holding that the award of expenses
C. 9 285).

is properly within the scope of 35 U.

The statutory purpose of such award is to reach cases where the interest of justice

warrants fee-shifting. Thus the trial court has broad discretion in the criteria by which it
determines whether to award attorney fees.
Brooktree Corp. v.

Advanced Micro Devices

Inc. 977 F. 2d 1555 , 1582 (Fed. Cir. 1992). By its motion , Golden Peanut seeks to recover

all sums that Golden Peanut has incurred in preparation for and performance of legal
services related to this case ,

including those post-judgment fees and expenses incurred in

connection with the filing of this motion.

currently being incurred by Golden Peanut have not been included in the Itemized Statement of Legal Services provided as Exhibit C hereto. However Golden Peanut hereby petitions the Court to accept an accounting of such fees and expenses upon
the Court' s granting of the present motion.

1 Post-judgment fees and expenses

Case 2:00-cv-00661-HRH

Document 538

Filed 04/03/2006

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Nature of the

Case
2000 , the Lemelson Foundation filed five separate patent lawsuits in

On April 14 ,

this Court , including the present action , against a total of more than 400 defendants. The
Lemelson Foundation s tactic was clear. The lawsuits were filed to shake up unsuspecting

companies from various industries in the hopes of forcing these companies to take a quick
license to the Lemelson patent portfolio , rather than get themselves involved in complex

patent litigation.
This tactic was first adopted in the late 1980' s

when Jerome Lemelson (" Lemelson
basis. Nicholas V archaver

engaged patent litigator Gerald Hosier on a contingency
Patent King,

The

FORTUNE , May 14 , 2001 , at 202. It has been written that at the height of

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the Lemelson licensing program in the late 1990' , Lemelson s attorney, Gerald Hosier
was entering into licenses of the Lemelson portfolio at a rate of one per day. Id.

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Rather

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than asserting Lemelson s patents against manufacturers of machine vision and bar coding

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equipment , which may have been able to defend against a patent lawsuit , the Lemelson

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Foundation targeted end-users and threatened complex and expensive patent litigation if
such end-users chose not to pay royalties. Id.

Hosier and Lemelson adopted a philosophy
Id.

to accept less money per license , but make it up in volume.

The high cost of patent

litigation coupled with the uncertainty of its outcome convinced many companies to license
the Lemelson portfolio. Id.

Reportedly, the Lemelson foundation has entered into over

750 license agreements since the early 1990s ,
fees.

resulting in about $1.5

billion in licensing

Id.

Golden Peanut chose not to succumb to the Lemelson Foundation s tactics. As a
result , Golden Peanut was forced to incur substantial legal fees and expenses in order to
protect its rights in this action , as detailed in the Itemized Statement of Legal

Services

attached hereto as Exhibit C.

Initially, Golden Peanut' s counsel reviewed each of the

asserted patents and the prosecution histories thereof to determine the scope of the asserted
patents and Golden Peanut' s potential liability. Thereafter , Golden Peanut' s

counsel was

Case 2:00-cv-00661-HRH

Document 538

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approached by counsel for Lemelson to take a license to the Lemelson Portfolio. Golden
Peanut' s counsel reviewed these offers and they were declined.
In January 2001 ,

before

Golden Peanut had an opportunity to file a response to the Lemelson Complaint, this Court
stayed the present action pending the entry of a final non-appealable
Symbol/Cognex v. Lemelson

judgment in the

declaratory judgment litigation pending in the United States
See

District Court for the District of Nevada.

January 5 ,

2001 Order. Over the next five

years , Golden Peanut and its counsel waited for a final non-appealable decision from the
Nevada district court.

On January

23 , 2004 , the

Nevada district court entered judgment against

the

Lemelson Foundation finding that the claims of Lemelson ' s machine vision and bar coding
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patents were invalid ,

unenforceable , and not

infringed.

Symbol Technologies

, Inc.

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Lemelson Medical

, Educ.

Research Foundation,

Ltd 301 F. Supp. 2d

1147 (D. Nev.

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2004). The Lemelson Foundation appealed this ruling and on September 9 , 2005 , the U.
Court of Appeals for the Federal Circuit upheld the district court' s finding that the patents-

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in-suit are unenforceable under the doctrine of prosecution
Inc. v.

laches.

Symbol Technologies

Lemelson Medical

, Educ.

Research Foundation 422 F. 3d 1378 (Fed. Cir. 2005),
Symbol Technologies ,
Inc. v.

amended on rehearing in part by,
Education

Lemelson Medical

Research Foundation

, Limited Partnership,

429 F. 3d 1051 (Fed. Cir. 2005).

The Federal Circuit agreed that Lemelson

s 18 to 39 year delay in presenting his patent

claims in the U. S. Patent and Trademark Office (" PTO" ) was an " egregious case of misuse

of the patent system. 422 F. 3d

at 1384- 85. The

Federal Circuit concluded that " in

this

exceptional case prejudice to the public as a whole has been shown here in the long period
of time during which parties , including (Symbol and its co- plaintiffs), have invested in the
technology described in the delayed patents.
Id.

at 13 86 (emphasis added).

II.
FEES

GOLDEN PEANUT IS ENTITLED TO AN AWARD OF ATTORNEYS'

Case 2:00-cv-00661-HRH

Document 538

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,'

The determination whether to award attorneys ' fees under 35 U. C. 9 285 involves
a two-step

process. First ,

the district court must determine whether there is clear and
Cybor Corp. v.

convincing evidence that this case is " exceptionaL"
1448 , 1460 (Fed. Cir.1998)
(en banc).

FAS Techs. 138 F.

Second , if the court finds the case to be exceptional
' fees is appropriate. Id.

it must then determine whether an award of attorneys
litigation in bad faith by the
prosecution before the PTO.

When

prevailing alleged infringers are awarded attorney fees exceptional' cases have involved
patentee , or fraud or other
Haas Co. v.

inequitable conduct during
688

Rohm

Crystal Chemical Co. 736 F. 2d

691- 92 (Fed. Cir. 1984). Judgment was entered in favor of Golden Peanut in this action as
a result of the Nevada District Court' s finding that the Lemelson patents asserted against
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Golden Peanut in the present action are unenforceable under
prosecution laches. As such ,
this case is " exceptional"

the

equitable doctrine of

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under 35 U. C. 9 285 and an

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award of attorneys ' fees and expenses is appropriate.
The facts surrounding Lemelson s misuse of the U. S. patent system are well outlined
in the

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Nevada district court' s

opinion.

See

301 F. Supp. 2d 1147 ,

1153.

Lemelson

machine vision and bar coding patents ,
action , issued in the 1980s
1960s. Id.

asserted against

Golden Peanut in the present
1950s and

and 1990s from U. S. patent applications filed in the

These patents are commonly referred to as " submarine patents " because they

resulted from patent applications filed on emerging technologies that remained hidden
under the secrecy provisions once afforded by the U. S.

Patent and Trademark Office and

then surfaced as issued patents after the broadly claimed technology had been widely
adopted and used by the industry. See

Susan Hansen Breaking the (Bar) Code IP Law &
vision and bar coding industry developed

Business , March 2004.

As the machine

Case 2:00-cv-00661-HRH

Document 538

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, "

Lemelson would file new claims to cover it , often with the targeted products in hand, and
in many cases more than 30 years after the filing of his original patent applications. Id.
This gross manipulation of the U. S.

patent system was deemed by the Nevada
301 F. Supp. 2d at 1155. The Nevada
failure to assert his

district court as " umeasonable and unjustified.

district Court concluded that " (t)he prejudicial effect of Lemelson s

claims without umeasonable delay is that suffered by the public , and privately by Symbol
and Cognex and others , which were denied the ability to distinguish that which is claimed
by Lemelson from that which is not." Id.

at 1155. Under the doctrine of prosecution

laches , an equitable doctrine based on the umeasonableness of the delay in prosecuting a
patent application ,
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the Lemelson patents asserted against Golden Peanut in the present
Id.

action were deemed unenforceable.

at 1155- 57.

Lemelson s umeasonable and

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unjustified delay in prosecuting the patent applications that issued as the patents- in-suit in
the present action provides clear and convincing evidence of inequitable conduct during
prosecution before the PTO , making this an " exceptional" case.
After finding this case to be " exceptional"
attorney fees

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(t)he subsequent decision to award

vel non is discretionary and ' permits the judge to weigh intangible as well as
the closeness of the question

tangible factors: the degree of culpability of the infringer ,

litigation behavior , and any other factors whereby fee shifting may serve as an instrument

of justice.
2001) (quoting from

Superior Fireplace Co.

v.

Majestic Products Co.
Inc. v.

270 F. 3d 1358 (Fed. Cir.

Nat' l

Presto Indus. ,

West Bend Co.

76 F. 3d 1185 ,

1197

(Fed. Cir.1996)). The Lemelson Foundation s behavior in this action necessitates the award

of attorneys ' fees.

, the US. patent law was amended to change the term of a US. patent from 17 years from date of issue to 20 years from its earliest filing date , significantly limiting the viability of submarine patents. Additionally, in 1999 , the US. patent law was changed to require patent applications to be published 18 months after their earliest filing date , removing the secrecy provisions from the US. patent system. However , US. patent applications filed before the changes
in the law , including Lemelson s applications , were not affected.

1 In 1995

Case 2:00-cv-00661-HRH

Document 538

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There is no evidence that the Lemelson Foundation conducted a detailed pre- filing

investigation with respect to each of the 400 defendants , including Golden Peanut , accused
in the five actions filed in this Court on April 14 , 2000.

Certainly, the Lemelson

Foundation never inspected the operations of Golden Peanut to determine if it was a user of
the patented machine vision or auto- ID technologies , as alleged , and it is unlikely that it

conducted such an investigation with respect to any of the hundreds of
See Superior Fireplace

other defendants.

270 F. 3d at 1378 (noting the importance of inspecting the accused

infringement and developing a claim chart for each alleged patent prior to filing a patent
lawsuit).

Additionally, as discussed above , the Lemelson Foundation used each of the patent
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lawsuits filed in this Court as a threat to extract licenses to the Lemelson patent portfolio

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from unsuspecting end-users. It is apparent that the Lemelson Foundation hoped each
defendant would be forced to take a quick license to the Lemelson portfolio rather than be

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faced with the uncertainty and expense of complex patent litigation.

In fact , so long as

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Golden Peanut agreed to consider taking a license

to the

Lemelson patent portfolio , the

Lemelson Foundation freely granted extensions to prevent the present action from moving forward. 1 Fortunately, this Court stepped in and stayed the present actions in favor of the
Symbol/Cognex actions in the Nevada District Court , bringing the Lemelson Foundation
licensing program to a halt.
Unfortunately, this Court cannot compensate the hundreds of companies that took

unnecessary licenses to the Lemelson patent portfolio. But this Court can

compensate

Golden Peanut and the other companies who chose to fight. In the interest of justice , the
Lemelson Foundation should not be able to simply walk away from the present action.

Fee-shifting is appropriate in this case.

1 The Lemelson Foundation

stipulated to three separate motions for the extension

of the time

Golden Peanut had to respond to the Lemelson Foundation s Complaint.

Case 2:00-cv-00661-HRH

Document 538

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III.

THE ATTORNEYS' FEE AWARD REQUESTED BY GOLDEN PEANUT IS
REASONABLE

Among the factors for determining whether an application for attorneys ' fees is
reasonable are: the time and labor required of counsel; the novelty and difficulty of the
questions presented; the skill requisite to perform the legal service properly; the customary
fee charged in matters of the type involved; and the experience ,

reputation and ability of

counsel. Local Rule 54. 2(c)(3).

As supported by the Declaration of David K. S. Cornwell

Cornwell Declaration ), attached hereto as Exhibit D , the total sum of $87 242. 90 for

legal services rendered in this matter is fair and reasonable for the amount and quality of
work performed on behalf of Golden Peanut. Cornwell DecI. at ,-r 2. Patent litigation
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requires attorneys having specialized knowledge of technology
Cornwell DecI. at,-r 15. As a result
costs through trial typically exceed a million dollars. , patent litigation is often extremely costly.

and the patent law.
Id.

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Fees and

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Id.

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As outlined in the engagement agreement between Golden Peanut and its counsel

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Golden Peanut was billed for attorneys ' fees on an hourly basis in this matter. (Exhibit B).
The rates charged to Golden Peanut varied depending on the particular attorney performing

the work. See Declaration of David K. S. Cornwell (" Cornwell Declaration ) at,-r 3. The
billing rates for each attorney were established by Sterne Kessler Goldstein & Fox P. LLC.
Sterne Kessler ) by taking into account each attorney s
experience and training. Id.

The

rates charged by Sterne Kessler for the time expended by all attorneys in this litigation are
in accordance with the rates charged by other lawyers in their respective communities with
similar experience and education. Id.

III.

CONCLUSION
This is an exceptional case under 35 U.

C. 9 285. As a result of Lemelson

inequitable conduct before the U. S. Patent and Trademark Office , all of the patents asserted

against Golden Peanut in this action have been found unenforceable. As the prevailing
party in this action , Golden Peanut is entitled to recovery of its attorneys ' fees and

Case 2:00-cv-00661-HRH

Document 538

Filed 04/03/2006

Page 8 of 16

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expenses. In the interest of justice , an award of all sums that Golden Peanut has incurred

in preparation for and performance of legal services

related to this case ,

including those

post-judgment fees and expenses incurred in connection with the filing of this motion, is
appropriate.

DATED this 3rd day of April , 2006.

ROSHKA DeWULF & PATTEN, PLC

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sf John E. DeWulf John E. DeWulf Darlene M. Wauro One Arizona Center 400 East Van Buren Street , Suite 800 Phoenix , Arizona 85004
Attorneys for Defendant Golden Peanut Company, LLC

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CERTIFICA TE OF SERVICE
I hereby

certify that on April 3 ,

2006 , I electronically transmitted the

attached

document to the Clerk' s Office using the CM/ECF System for filing and transmittal of a

Notice of Electronic Filing to the following CM/ECF registrants:
Louis 1. Hoffman , Esq.
HOFFMAN & ZUR

14614 North Kierland Boulevard , Suite 300 Scottsdale , AZ 85254 ih~patentit. com

Victoria Gruver Curtin , Esq.
VICTORIA GRUVER CURTIN PLC

14614 North Kierland Boulevard , Suite 300 Scottsdale , AZ 85254 vgc~patentit. com

Peter C. Warner , Esq.
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PETER C. WARNER PC

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1723 West 4th Street Tempe , AZ 85281- 2404
pcw~warnerpatents. com
Attorneys for Plaintiff

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Lemelson

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Charles Bradley, Esq.

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Attorney at Law 33 Mt. Green Road Croton-on- Hudson , NY 10520 cwbradle verizon. net
Attorneys or Defendants Alcon Laboratories,

Inc. and Nestle USA , Inc.

Jonathan M. James , Esq.
PERKINS COlE BROWN & , BAIN P A

2901 North Central Avenue O. Box 400 Phoenix , AZ 85001- 0400
11 ames~perkinscoie. com Attorneys for Defendants Allied Domecq, Ocean Spray and Dole Foods Company

Jennifer Van Kirk , Esq.
LEWIS & ROCA

40 North Central Avenue Phoenix , AZ 85004- 4429 JV ankirk~lrlaw. com Attorneys for Alpharma, Inc. , Diageo PLC, Guinness LTD, Kraft Foods Inc. Miller Brewing Company, Phillip Morris Company, Inc.
, and United Distillers

Vintners Ltd.

Case 2:00-cv-00661-HRH

Document 538

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Don Bivens , Esq. Jennifer P. Nore , Esq.
BIVENS & NORE , P.

3003 North Central Avenue , Suite 1200 Phoenix , AZ 85012- 2915 dwbivens~bivens- nore. com

Ralph C. Francis , Esq.
FRANCIS LAW GROUP 1942 Embarcadero

Oakland , CA 94606 rcf~francislaw. com
Attorneys for Defendants Amway Corporation and Glaxo Wellcome, Inc.
Michael 1. O' Connor , Esq.
JENNINGS , STROUSS & SALMON

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Attorneys or Defendant Anheuser-Busch
Mark A. Nadeau , Esq.
SQUIRE SANDERS & DEMPSEY , LLP

The Collier Center , 11 th Floor 201 East Washington Street Phoenix , AZ 85004- 2385 moconnor . sslaw. com

Companies

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Two Renaissance Square 40 North Central Avenue , Suite 2700 Phoenix , AZ 85004- 4441
mnadeau~ssd. com

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Attorneys for Defendants Campbell Soup, Hershey, Tyson , Lee Corporation Hormel, IBP, Dean Foods, Lorillard, Gilster-Mary Lee and McCormick

Brett L. Dunkelman , Esq.
OSBORN MALEDON , P.

2929 North Central Avenue , Suite 2100 Phoenix , AZ 85012- 2794 bdunkelman~omlaw. com
Attorneys for

Defendant Chiquita Brands International, Inc.

Bennett Evan Cooper , Esq.
STEPTOE & JOHNSON , LLP

Collier Center 201 East Washington , Suite 1600 Phoenix , AZ 85004- 2382
bcooper~steptoe. com

Robert A. Schroeder , Esq.
BINGHAM , MCCUTCHEN , LLP

355 South Grand Avenue , Suite 4400

Los Angeles , CA 90071
Robert. Schroeder~bingham. com

Attorneys for Defendants ConAgra, Inc. and Sunkist Growers, Inc.

Case 2:00-cv-00661-HRH

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James W. Armstrong, Esq.
SACKS TIERNEY , P A

4250 North Civic Center Boulevard , 4th Floor Scottsdale , AZ 85251 J ames. Armstrong~sackstierney. com Attorneys for Defendant Del Laboratories, Inc.
David Berten , Esq.
COMPETITION LAW GROUP

120 South State Street , Suite 300 Chicago , IL 60603
berten~competelaw. com
Attorneys for

Defendant Del Monte Foods

Doug Seitz , Esq.

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Attorneys for

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Defendant Forest Laboratories, McKee Foods Corporation , Nabisco Holdings, and WLR Foods
John W. Kozak , Esq. David M. Airan , Esq.
LEYDIG , VOlT & MAYER

One Arizona Center 400 East Van Buren Phoenix , AZ 85004- 2202 dcseitz~swlaw. com

SNELL & WILMER LLP.

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Two Prudential Plaza , Suite 4900 Chicago , IL 60601- 6780 kozak Ie di . com dairan Ie di . com Attorneys for Defendants Frito-Lay and Pepsico
Timothy 1. Burke , Esq. FENNEMORE CRAIG , P. 3003 North Central Avenue , Suite 2600 Phoenix , AZ 85012- 2913

tburke~fclaw. com
Attorneys for Defendants Brown

Williamson Tobacco Company

James R. Higgins , Esq.
MIDDLETON & REUTLINGER, PSC 401 South 4th Avenue , Suite 2500

Louisville , Kentucky 40202- 3410 ihiggins~middreut. com
Attorneys for Defendants Brown

Williamson Tobacco Company and H.J. Heinz

James F. Polese , Esq.
POLESE , PIETZSCH , WILLIAMS & NOLAN , P A

2702 North Third Street , Suite 3000 Phoenix , AZ 85004- 4607
polese~ppwn. com

Case 2:00-cv-00661-HRH

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John W. Pelino , Esq. Howard A. Rosenthal , Esq. Edward L Ciemniecki , Esq.
PELINO & LENTZ , P.

1650 Market Street , 32nd Floor Philadelphia , P A 19103- 7393
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elciemnieckl elino. com Attorneys for Keystone Foods Corp.
CASEBOLT , GERMAINE & DRIGGS , P. LC.

~~ om

Sanford 1. Germaine , Esq.

11811 North Tatum Boulevard , Suite 3051 Phoenix , AZ 85028
sgermpc~aoI. com
Attorneys for Liggett

Group Inc.

Charles W. Wirkin , Esq.
GUST ROSENFIELD ,
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PLC

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201 West Washington , Suite 800 Phoenix , AZ 85004 cwirken~gustlaw. com Attorneys for Defendant Cargill
Steven M. Weinberg, Esq.
WEINBERG LEGAL GROUP

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Biltmore Financial Center
2390 East Camelback Road , Suite 250

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Phoenix , AZ 85016 weinber s tlaw. com
Attorneys or Defendant Seneca

Foods

Timothy Casey, Esq.

One Arizona Center 400 East Van Buren Phoenix , AZ 85004- 2202
tcasey~swlaw. com

SNELL & WILMER LLP.

Aaron Myers , Esq.
ROBINS , KAPLAN , MILLER & CIRESI , L.

2800 LaSalle Plaza 800 LaSalle Avenue Minneapolis , MN 55402- 2015
aamyers~rkmc. com
Attorneys for

Defendant Schwan s Sales Enterprises, Inc.

Case 2:00-cv-00661-HRH

Document 538

Filed 04/03/2006

Page 13 of 16

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With a copy served by u. s. mail to the following who are not registered
CM/ECF System:

participants of the

James B. Bear , Esq. Paul A. Stewart , Esq.
KNOBBE , MARTENS , OLSON & BEAR, LLP

2040 Main Street , 14th Floor Irvine , CA 92614- 7216

David K. Callahan
KIRKLAND & ELLIS , LLP

200 East Randolph Street , Suite 5800 Chicago , IL 60601
Annamarie A. Daley
ROBINS , KAPLAN , MILLER & CIRESI , LLP

2800 LaSalle Plaza 800 LaSalle Avenue Minneapolis , MN 55402- 2015
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Albert E. Fey, Esq.

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Charles Quinn , Esq.
FISH & NEA VE

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1251 Avenue of the Americas New York , NY 10020
Jesse 1. Jenner , Esq.
ROPES & GRAY LLP

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1251 Avenue of the Americas New York , NY 10020

Christopher T. Griffith , Esq. Wesley O. Mueller , Esq.
LEYDIG , VOlT & MAYER

Two Prudential Plaza , Suite 4900 Chicago , IL 60601- 6780
Roy E. Hofer , Esq. Gustavo Siller , Jr. , Esq.
BRINKS , HOFER, GILSON & LIONE

NBC Tower , Suite 3600 455 North Cityfront Plaza Drive Chicago , IL 60611- 5599
Joseph P. Lavelle , Esq. Laura C. Miller , Esq. Peter E. Moll , Esq.
HOWREY , SIMON , ARNOLD & WHITE LLP

1299 Pennsylvania Avenue NW Washington , DC 20004- 2402

Case 2:00-cv-00661-HRH

Document 538

Filed 04/03/2006

Page 14 of 16

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Gary D. Lueck , Esq.
BINGHAM MCCUTCHEN LLP 355 South Grand Avenue , Suite 4400

Los Angeles , CA 90071

Kevin M. Rose , Esq.
WHARTON , ALDHIZER & WEAVER, PLC

100 South Mason Street Harrisonburg, VA 22801

John F. Salazar , Esq.
MIDDLETON & REUTLINGER, PSC 401 South 4th Avenue , Suite 2500

Louisville , Kentucky 40202- 3410
Martin W. Schiffmiller , Esq. Lisa A. Pieroni , Esq.

Floor New York , NY 10017
489 5
, 1 ih

KIRSCliSTEIN OTTINGER ISRAEL & SCHIFFMILLER, PC t Avenue

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Regis E. Slutter , Esq.
BURNS DOANE SWECKER & MATHIS LLP

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O. Box 1404 Alexandria , VA 22313 - 1404

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Kevin S. Sprecher , Esq. Ann G. Robinson , Esq.
FROST BROWN TODD LLC

:I: 0

2200 PNCth Street Center
201 East 5

Cincinnati , OH 45202
Jay Todd Stewart , Esq.
PERKINS COlE BROWN & BAIN P A

O. Box 400 Phoenix , Arizona 85001- 0400

Stephen P. Swinton , Esq.
COOLEY GODW ARD LLP

4401 Eastgate Mall San Diego , CA 92121- 1909
William M. Wesley, Esq. Christopher C. Winslade , Esq.
McANDREWS HELD & MALLOY LTD.

500 West Madison , Suite 3400 Chicago , IL 60661

Case 2:00-cv-00661-HRH

Document 538

Filed 04/03/2006

Page 15 of 16

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And a courtesy copy mailed via priority mail to:

The Honorable H. Russel Holland United States District Court 222 West 7th Avenue , Unit 54 Anchorage , AK 99513

s/John E. DeWulf

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Case 2:00-cv-00661-HRH

Document 538

Filed 04/03/2006

Page 16 of 16