Free Response to Motion - District Court of Arizona - Arizona

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Martin W. Schiffmiller KIRSCHSTEIN, OTTINGER, ISRAEL & SCHIFFMILLER, P.C. 489 Fifth Avenue, 17th Floor New York, New York, 10017 Telephone: (212) 697-3750 James W. Armstrong (No. 009599) SACKS TIERNEY P.A. 4250 North Drinkwater Blvd., 4th Floor Scottsdale, Arizona 85251-3647 Telephone: (480) 425-2600 [email protected] Attorneys for Defendant Del Laboratories, Inc. UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Lemelson Medical, Education & Research Foundation, Limited Partnership, Plaintiff, v. Alcon Laboratories, Inc., et al., Defendants. Del Laboratories, Inc., Counterclaimant, v. Lemelson Medical, Education & Research Foundation, Limited Partnership, Counterdefendant. Pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure, Defendant Del Laboratories, Inc. ("Del") hereby responds to the Motion to Dismiss Case filed by Lemelson Medical, Education & Research Foundation ("Lemelson") on December 22, 2005. As discussed in the following Memorandum of Points and Authorities, while Del does not oppose the dismissal of Lemelson's latest Amended Complaint and Del's
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No. CIV'00-0661-PHX-SMM RESPONSE TO PLAINTIFF'S MOTION TO DISMISS CASE AND CROSS-MOTION TO ADD CONDITION UPON DISMISSAL

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Counterclaim, Del respectfully urges the Court to condition that dismissal upon Del's right to seek an award of its reasonable attorneys' fees pursuant to 35 U.S.C. § 285 and in accordance with Rule 54.2 of this Court's Local Rules of Civil Procedure. MEMORANDUM OF POINTS AND AUTHORITIES This lawsuit is one of five simultaneously filed in the District of Arizona by Lemelson more than five years ago, on April 4, 2000. As amended, Lemelson's

Complaints accused hundreds of companies of infringing various patents issued to the late Jerome H. Lemelson in the early 1990s, for which Lemelson claimed the benefit of the filing dates of two patent applications submitted by Mr. Lemelson to the U.S. Patent and Trademark office in 1954 and 1956. According to Lemelson, those patents

purportedly encompassed bar code scanners and similar "machine vision" equipment like that developed and sold by manufacturers such as Symbol Technologies, Inc. ("Symbol") and Cognex Corporation ("Cognex"). Rather than sue Symbol, Cognex or any other manufacturers, however, Lemelson's lawsuits in Arizona targeted those manufacturers' customers, like Del, which had no role in either making or designing the scanning technology at issue. Accordingly, Lemelson's claims of infringement in the instant

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lawsuit were based merely upon the Defendants' use of bar code scanners and/or similar systems in the routine course of operating their unrelated pharmaceutical and/or cosmetics businesses. Fortunately, however, prior to the commencement of the Arizona lawsuits, and in response to letters sent by Lemelson to their customers alleging infringement, Symbol and Cognex filed their own actions against Lemelson in the District of Nevada, seeking a declaratory judgment that, inter alia, Lemelson's patents were invalid or unenforceable under the equitable doctrine of prosecution laches. See Symbol Technologies, Inc. v. Lemelson Med., Educ. & Research Found., Ltd. P'ship, No. CV-N-99-00397 (D. Nev. filed July 21 1999); Cognex Corp. v. Lemelson Med., Educ. & Research Found., Ltd. P'ship, No. CV-N-99-00533 (D. Nev. filed Sept. 27, 1999). In light of the long prior pendency of these manufacturer declaratory judgment actions, which were later
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consolidated before the Nevada District Court on March 21, 2000,1 Del and numerous other Defendants moved to stay the instant lawsuit in October 2000, pending a final determination of the validity of the same "bar code" and "machine vision" patents at issue here in the Nevada litigation.2 In its November 6, 2000 Response to the Defendants' stay motions, Lemelson conceded that it made "little sense, as a matter of judicial administration or cost to the parties, to litigate parties, to litigate this case in parallel with the other actions." Accordingly, on January 5, 2001, the Court ordered that "this action is stayed pending the entry of a final non-appealable judgment in the Symbol/Cognex litigation currently pending in the United States District Court for the District of Nevada." The Court further ordered that the parties should notify it when such a judgment was entered, at which time further orders would be made. Meanwhile, following extensive pretrial proceedings and an interlocutory appeal to the Federal Circuit, the consolidated Symbol/Cognex litigation was tried before the Nevada District Court from November 18, 2002 through January 17, 2003. 301 F.Supp. 2d at 1150. After five and one-half months of additional post-trial briefing, the Nevada court entered its final judgment on January 23, 2004, concluding (among other holdings) that Lemelson's alleged patent rights had been forfeited under the equitable doctrine of prosecution laches. 301 F.Supp. 2d at 1154-57. Thus, as explained by the district court: The defense of prosecution laches was first recognized in the patent context nearly 150 years ago in Kendall v. Winsor, 62 U.S. 322, 21 Id., 62 U.S. at 329. Sixty- years later, in Woodbridge v. United States, 263 U.S. 50, 44 See Symbol Technologies, Inc. v. Lemelson Med., Educ. & Research Found., Ltd. P'ship, 301 F. Supp.2d 1147, 1150 (D. Nev. 2004). Prior to submitting its stay motion Joinder on October 27, 2000, Del filed an Answer on October 2, 2005, denying any liability on the infringement claims asserted in Lemelson's First Amended Complaint, together with a Counterclaim seeking declaratory and injunctive relief based upon the invalidity and unenforceability of Lemelson's patents. The Court later permitted Lemelson to amend its Complaint one further time, without requiring the Defendants to submit additional answers. Lemelson's Second Amended Complaint was filed on December 13, 2000. Both Del's and Lemelson's pleadings also alleged that attorneys' fees were awardable under 35 U.S.C. § 285. -3Document 518 Filed 01/12/2006 Page 3 of 15
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S.Ct. 45, 68 L.Ed. 159 (1923), and Webster Electric Co. v. Splitdorf Electrical Co., 264 U.S. 463, 44 S.Ct. 342, 68 L.Ed. 792 (1922), the Supreme Court applied the defense of prosecution laches to prevent the applicant from deliberately delaying the issuance of a patent solely to increase its commercial value, and to prevent a patent applicant from unreasonably postponing the time when the public could enjoy the free use of an invention. Symbol/Cognex, 301 F.Supp.2d at 1154. In applying these standards to the evidence introduced at trial, the Symbol/Cognex court found that: Lemelson's 18 to 39 year delay in filing and prosecuting the asserted claims under the fourteen patents-in-suit after they were first purportedly disclosed in the 1954 and 1956 applications was unreasonable and unjustified and that the doctrine of prosecution laches renders the asserted claims unenforceable against Symbol and Cognex. The first patent based on Lemelson's 1954 application issued in 1962, and the first patent based on Lemelson's 1956 application issued in 1963. From that point forward, the public was entitled to assume that what was not claimed was dedicated to the public. 301 F.Supp.2d at 1155-56 (citations omitted) (emphasis added). The Nevada District Court further found that the evidence "strongly supported" the following combination of factors asserted by the plaintiffs in support of their prosecution laches claim: (1) Mr. Lemelson's original disclosures were made public in the 1960's and those patents expired by the 1980's; (2) before the asserted claims were filed numerous articles and patents describing machine vision and bar code scanning were published, and commercial products were developed and marketed; (3) Mr. Lemelson was aware of the developments in the machine vision and bar code fields, and yet he still waited; (4) Mr. Lemelson systematically extended the pendency of his applications by sitting on his rights, and sequentially filing one application at a time so that he could maintain co-pendency while waiting for viable commercial systems to be designed and marketed; and (5) Mr. Lemelson (and his new counsel [including those who filed the Arizona lawsuits]) then drafted and prosecuted hundreds of new claims in the late 1980's and 1990's specifically worded to cover those commercial systems. 301 F.Supp.2d at 1156 (emphasis added). The Nevada court also noted that of the five million patents issued in the United States between 1914 and 2001, Lemelson patents held the top thirteen positions for the longest prosecutions, and that "[s]ome of the claims asserted by Lemelson in this case will not expire until 2011, fifty-five years after the
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1956 application was filed and forty-eight years after the application issued as a patent." Id. Moreover, Lemelson's "culpable neglect" in ignoring "the duty to claim his invention promptly" resulted in a "prejudicial effect ... 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. Accordingly, the court aptly

concluded that "[i]f the defense of prosecution laches does not apply under the totality of circumstances presented here, the Court can envision very few circumstances under which it would." Id. Prosecution laches acts to protect the public by forcing patentees to file patent claims in a timely manner. Beyond the extraordinary delay presented here, the record also shows that Lemelson effectively extended his patent monopoly by maintaining co-pendency for nearly forty years through continuation practice, and added new claims to cover commercial inventions in the marketplace years after his original patents had expired. This is precisely the type of prejudice to the public which the equitable doctrine of prosecution laches is designed to guard against. Symbol/Cognex, 301 F.Supp.2d at 1157 (citations omitted). Lemelson subsequently appealed the district court's decision to the Federal Circuit, which in an opinion issued on September 5, 2005 affirmed the holding that Lemelson's asserted patents were unenforceable under the prosecution laches doctrine. Symbol

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Technologies, Inc. v. Lemelson Med., Educ. & Research Found., Ltd. P'ship, 422 F.3d 1378 (Fed. Cir. 2005).3 Specifically, after first explaining that because there may be several "legitimate" reasons for refiling a patent application, the doctrine should be used "sparingly" and "only in egregious cases of misuse of the statutory patent system," the Federal Circuit found that Lemelson's conduct met this strict standard: [R]efiling an application solely containing previously-allowed claims for the business purpose of delaying their issuance can be considered an abuse of the patent system. * * * In particular, multiple examples of repetitive The district court also held in the alternative that the plaintiffs' machine vision and bar code scanning products did not infringe Lemelson's patent claims, and that those claims were otherwise invalid for lack of a "written description" and enablement under 35 U.S.C. § 112. These additional holdings were not addressed by the Federal Circuit in Lemelson's appeal, given the appellate court's finding that the district judge did not abuse his discretion in applying the prosecution laches defense. Symbol/Cognex, 422 F.3d at 1386. -5Document 518 Filed 01/12/2006 Page 5 of 15
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refilings that demonstrate a pattern of unjustifiably delayed prosecution may be held to constitute laches. Taken singly, the delay in the prosecution on any one particular application will surely not appear to merit relief by the courts in equity. On the other hand, an examination of the totality of the circumstances, including the prosecution history of all of a series of related patents and overall delay in issuing claims, may trigger laches. The district court here heard considerable evidence that that was what occurred in this case. * * * The court also found that Lemelson had engaged in "culpable neglect" during the prosecution of these applications and it recognized the adverse effect on businesses that were unable to determine what was patented from what was not patented. * * * Under those circumstances, we can hardly conclude that the court abused its discretion in holding the involved patents unenforceable ... . The court thoroughly examined the facts and the equities, and it exercised its discretion reasonably. 422 F.3d at 1385-86 (citations omitted) (emphasis added).4 Following the definitive outcome of Symbol/Cognex, Lemelson filed its Motion to Dismiss this lawsuit on December 22, 2005. Because Lemelson did not seek the

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remaining Defendants' stipulation to such a dismissal, however, it may only be granted "upon order of the court and upon such terms and conditions as the court deems proper." Rule 41(a)(2), Fed.R.Civ.P. Moreover, where (as here) a counterclaim has been pleaded by any defendant prior to the service of such a motion, "the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by the court." Id. As mentioned above, by this Response, Del does not intend to oppose the dismissal of either Lemelson's Third Amended Complaint or Del's Counterclaim, but instead asks that, pursuant to Rule 41(a)(2), the Court condition that dismissal upon Del's right to move for an award of its reasonable attorneys' fees in accordance with the postjudgment procedures set forth in Local Rule 54.2, which states, in pertinent part, that: Unless otherwise provided by statute or court order entered in an individual case, the party seeking an award of attorneys' fees and related non-taxable expenses shall file and serve a motion for award of attorneys' fees and related non-taxable expenses within fourteen (14) days of the entry of Later, on panel rehearing, the Federal Circuit amended its opinion to extend the district court's laches holding of enforceability of the 76 patent claims asserted by Lemelson to all of the claims contained in the 14 patents at issue. Symbol Technologies, Inc. v. Lemelson Med., Educ. & Research Found., Ltd. P'ship, 429 F.3d 1051 (Fed. Cir. 2005). -6Document 518 Filed 01/12/2006 Page 6 of 15
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judgment in the action with respect to which the services were rendered. At a minimum, the motion shall specify: (A) The applicable judgment and the statutory or contractual authority entitling the parts to the award; and (B) The amount of attorneys' fees and related non-taxable expenses sought or a fair estimate of such amount. At the time of filing the motion, counsel need not file a memorandum of points and authorities, as required by Rule 7.2, Local Rules of Civil Procedure or the supporting documentation, as required by paragraph (d) of this Local Rule. LRCiv 54.2(b)(1). In the event that the parties cannot voluntarily resolve such a fee claim following the filing of the claimant's initial motion, subparagraph (b)(2) of Local Rule 54.2 then mandates that "the memorandum of points and authorities ... attorneys' fees, and all supporting documentation ... shall be filed and served within sixty (60) days of the entry of judgment in the action with respect to which the services were rendered." Consistent with the procedures specified in Local Rule 54.2, numerous federal decisions have held that the district court retains jurisdiction following the dismissal of a patent case under Rule 41(a)(2) to decide a defendant's subsequent motion for attorneys' fees under 28 U.S.C. § 285. See, e.g., Samsung Electronics Co. v. Rambus, Inc., 2005 U.S. Dist. LEXIS 27329, at *28-*54 (E.D. Va. Nov. 8, 2005): Highway Equip. Co. v. FECO, Ltd., 2005 U.S. Dist. LEXIS 17313 (N.D. Iowa April 22, 2005); Knauf Fiber Glass, GbmH v. Certainteed Corp., 2004 U.S. Dist. LEXIS 6291 (S.D. Ind. March 24, 2004); Interstate Forging Indus. v. Federal Forge, Inc., 1999 U.S. Dist. LEXIS 8760 (W.D. Mich. June 8, 1999); Technimark, Inc. v. Crellin, Inc., 14 F.Supp.2d 762, 767 (M.D.N.C. 1998); see also Gilbreth Int'l Corp. v. Lionel Leisure, Inc., 587 F.Supp. 605 (E.D. Pa. 1983). Thus, for example, as reasoned by the court in Interstate Forging: Under [Section 285], the Court may award attorney's fees to the prevailing party in "exceptional cases." * * * The provision is designed to compensate the prevailing party "for costs which it would not have incurred but for the losing party's misconduct." W.L. Gore & Associates v. Oak Materials Group, 424 F.Supp. 700, 704 (D. Del. 1976). Courts have found that exceptional circumstances exist where "the patentee obtained the patent through fraud on the patent office, or demonstrated bad faith in bringing and maintaining the action while knowing of the invalidity of the patents." Id. The prevailing party carries the burden of proof on such claims, id. at 702, and must demonstrate the alleged fraud or bad faith by clear and
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convincing evidence, Machinery Corp. of America v. GullfiberAB, 774 F.2d 467, 471 (Fed. Cir. 1985); Sheller-Globe Corp. v. Milsco Mfr. Co.¸636 F.2d 177, 179 (7th Cir. 1980). Because Plaintiff dismissed its Complaint with prejudice, Defendant is the prevailing party with respect to the claims of infringement made by Plaintiff. Accordingly, Defendant is entitled to request attorney's fees and to submit its proofs on the facts making this case exceptional and justifying an award of attorney's fees pursuant to 35 U.S.C. § 285. Interstate Forging, 1999 U.S. Dist. LEXIS 8760, at *7-*8 (granting defendant's Rule 41(a)(2) motion to add conditions to order of dismissal).5 Here, too, Del is clearly a "prevailing party" as a result of Lemelson's dismissal of this case, entitling Del to seek an award of its reasonable attorneys' fees under Section 285. Del therefore respectfully request the Court to condition its dismissal order upon

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 As further explained by the district court in Gilbreth Int'l, the "bad faith" standard may also be satisfied by a showing of "recklessness": "'[A] patentee who knows or reasonably should know that the patent is invalid on any other ground, but nevertheless sues an alleged infringer is guilty of bad faith. * * * If no fraud is involved, the key to the determination of bad faith is the reasonableness of the patentee's belief in the patent's validity.'" 587 F.Supp. at 616 (quoting W.L. Gore, 424 F.Supp. at 704). Moreover, "'[C]onduct short of fraud and in excess of simple negligence is also an adequate foundation for deciding that a patent action is exceptional. Such conduct is a serious breach of the patentee's duty to the Patent Office. The party who succeeds in invalidating the unlawful patent performs a valuable public service. It is appropriate under such circumstances to reward the prevailing party by giving him attorney's fees for his efforts, and it is equally appropriate to penalize in the same measure the patentee who obtained the patent by his wrongdoing.'" Gilbreth Int'l, 587 F.Supp. at 616-17 (quoting Monolith Portland Midwest Co. v. Kaiser Aluminum, 407 F.2d 288, 294 (9th Cir. 1969)). Here, as noted above, not only has Lemelson itself conceded in its pleadings that this is an "exceptional" case within the meaning of Section 285, but the Nevada District Court likewise found that the parallel Symbol/Cognex litigation met that standard (although the plaintiffs there did not request an award of fees under the statute): "Lemelson contends that the conduct of Plaintiffs Symbol and Cognex and their counsel 'exceeded reasonable litigation tactics with a strategy of obfuscation' such as to warrant a declaration by this Court that Lemelson is entitled to an award of attorneys' fees under 35 U.S.C. § 285. * * * To characterize this case as 'exceptional' in terms of the exhaustive history of the Lemelson patents-in-suit and the equally exhaustive record adduced at trial, including pre- and post-trial briefing, would be an understatement. Here, however, Lemelson is not the prevailing party... ." 301 F.Supp.2d at 1167 (emphasis added). -8Document 518 Filed 01/12/2006 Page 8 of 15
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Del's right to pursue and support its fee claim in accordance with the procedures set forth in Local Rule 54.2.

DATED this 12th day of January, 2006.

SACKS TIERNEY P.A.
By: s/ James W. Armstrong

Attorneys for Defendant Del Laboratories, Inc.

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P.A., LAWYERS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3647

CERTIFICATE OF SERVICE I hereby certify that on January 12, 2006, a complete, duplicate copy of this document was forwarded directly to Judge Holland by Express Mail, at the following address: Judge H. Russell Holland United States District Court 222 West 7th Avenue, Unit 54 Anchorage, Alaska 99513 s/ James W. Armstrong

I further certify that on January 12, 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 CMECF registrants:

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Louis J. Hoffman, Esq. Hoffman & Zur 14614 North Kierland Boulevard, Suite 300 Scottsdale, AZ 85254 Email: [email protected] Attorneys For Plaintiff Lemelson Victoria Gruver Curtin, Esq. Victoria Gruver Curtin PLC 14614 North Kierland Boulevard, Suite 300 Scottsdale, AZ 85244 Email: [email protected] Attorneys For Plaintiff Lemelson Peter C. Warner, Esq. Peter C. Warner PC 1723 West. 4th Street Tempe, AZ 85281-2404 Email: [email protected] Attorney For Plaintiff Lemelson Mark A. Nadeau, Esq. Squire Sanders & Dempsey , LLP Two Renaissance Square 40 N. Central Avenue, Suite 2700 Phoenix, AZ 85004-4441 Email: [email protected] [email protected] Attorneys For Defendants Campbell Soup, Hershey, Tyson, Lee Corporation, Hormel, IBP, Dean Foods, Lorillard, Gilster-Mary Lee and McCormick

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Jonathan M. James, Esq. Perkins Coie Brown & Bain PA 2901 North Central Ave. P.O. Box 400 Phoenix, AZ 85001-0400 Email: [email protected] Attorneys For Defendants Allied Domecq, Ocean Spray and Dole Food Company Doug Seitz, Esq. Snell & Wilmer L.L.P. One Arizona Center 400 East Van Buren Phoenix, AZ 85004-2202 Email: [email protected] Attorneys For Defendant WLR Foods Robert A. Schroeder, Esq. Gary D. Lueck, Esq. Bingham, McCutchen, LLP 355 South Grand Ave., Suite 4400 Los Angeles, CA 90071 Attorneys for Defendants ConAgra, Inc. and Sunkist Growers, Inc. David Berten, Esq. Competition Law Group 120 South State Street, Suite 300 Chicago, Illinois 60603 Attorneys for Defendant Del Monte Foods Charles Bradley, Esq. Attorney at Law 33 Mt. Green Road Croton-on-Hudson, New York 10520 Attorneys for Defendants Alcon Laboratories, Inc. and Nestle USA, Inc. John W. Kozak, Esq. David M. Airan, Esq. Leydig, Voit & Mayer Two Prudential Plaza, Suite 4900 Chicago, Illinois 60601-6780 Attorneys for Defendants Frito-Lay and Pepsico Michael J. O'Connor, Esq. Jennings, Strouss & Salmon The Collier Center, 11Floor 201 East Washington Street Phoenix, AZ 85004-2385 Attorneys for Defendant Anheuser-Busch Companies James R. Higgins, Esq. John F. Salazar, Esq. Middleton & Reutlinger, PSC 401 South 4th Avenue, Suite 2500 Louisville, Kentucky 40202-3410 Attorneys for Defendants Brown & Williamson Tobacco Company and H.J. Heinz
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James F. Polese, Esq. Polese, Pietzsch, Williams & Nolan, PA 2702 North Third Street, Suite 3000 Phoenix, Arizona 85004-4607 Attorneys for Keystone Foods Corp. Charles W. Wirken, Esq. Gust Rosenfield, PLC 201 W. Washington, Suite 800 Phoenix, AZ 85004 Attorneys for Defendant Cargill Steven M. Weinberg, Esq. Weinberg Legal Group Biltmore Financial Center 2390 E. Camelback Road, Suite 250 Phoenix, AZ 85016 Attorneys for Defendant Seneca Foods Don Bivens, Esq. Michael Ross, Esq. Meyer, Hendricks & Bivens 3003 North Central Ave., Suite 1200 Phoenix, AZ 85012-2915 Attorneys for Defendants Amway Corporation and Glaxo Stephen T. Sullivan, Esq. Tish L. Berard, Esq. Sullivan Law Group 1850 North Central Ave., Suite 1140 Phoenix, AZ 85004 Attorneys for Defendant Golden Peanut
s/ James W. Armstrong

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I hereby further certify that on January 12, 2006, I served the attached document by U.S. mail, postage prepaid, on the following, who are not registered participants of the CM/ECF System: James B Bear Knobbe Martens Olson & Bear LLP 2040 Main St 14th Floor Irvine, CA 92614 Tish L Berard Sullivan Law Group 1850 N Central Ave Ste 1140 Phoenix, AZ 85004-4586 Case 2:00-cv-00661-HRH Document 518

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David K Callahan Kirkland & Ellis 200 E Randolph Dr Ste 5800 Chicago, IL 60601 Annamarie A Daley Robins Kaplan Miller & Ciresi LLP 2800 LaSalle Plaza 800 LaSalle Ave Minneapolis, MN 55402-2015 Albert E Fey Fish & Neave 1251 Ave of the Americas New York, NY 10020 Christopher T Griffith Leydig Voit & Mayer Ltd 2 Prudential Plaza Ste 4900 Chicago, IL 60601-6780 Roy E Hofer Brinks Hofer Gilson & Lione 455 N Cityfront Plaza Dr Ste 3600 NBC Tower Chicago, IL 60611-5599 Jesse J Jenner Fish & Neave 1251 Ave of the Americas New York, NY 10020 Joseph P Lavelle Howrey Simon Arnold & White LLP 1299 Pennsylvania Ave NW Washington, DC 20004-2402 Gary D Lueck Bingham McCutchen LLP 355 S Grand Ave Ste 4400 Los Angeles, CA 90071

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Laura C Miller Howrey Simon Arnold & White LLP 1299 Pennsylvania Ave NW Washington, DC 20004-2402 Peter E Moll Howrey Simon Arnold & White LLP 1299 Pennsylvania Ave NW Washington, DC 20004-2402 Wesley O Mueller Leydig Voit & Mayer Ltd 2 Prudential Plaza Ste 4900 Chicago, IL 60601-6780 Charles Quinn Fish & Neave 1251 Ave of the Americas New York, NY 10020 Ann G Robinson Frost Brown Todd LLC 2200 PNC Ctr 201 E 5th St Cincinnati, OH 45202 Kevin M Rose Wharton Aldhizer & Weaver PLC 100 S Mason St Harrisonburg, VA 22801 John F Salazar Middleton & Reutlinger PSC 401 S 4th Ave Ste 2500 Louisville, KY 40202-3410 Gustavo Siller, Jr Brinks Hofer Gilson & Lione 455 N Cityfront Plaza Dr Ste 3600 NBC Tower Chicago, IL 60611-5599 Regis E Slutter Burns Doane Swecker & Mathis LLP PO Box 1404 Alexandria, VA 22313-1404 Case 2:00-cv-00661-HRH Document 518

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Kevin S Sprecher Frost Brown Todd LLC 2200 PNC Ctr 201 E 5th St Cincinnati, OH 45202 Jay Todd Stewart Perkins Coie Brown & Bain PA PO Box 400 Phoenix, AZ 85001-0400 Paul A Stewart Knobbe Martens Olson & Bear LLP 2040 Main St 14th Floor Irvine, CA 92614 Stephen P Swinton Cooley Godward LLP 4401 Eastgate Mall San Diego, CA 92121-1909 William M Wesley McAndrews Held & Malloy Ltd 500 W Madison St Ste 3400 Chicago, IL 60661 Christopher C Winslade McAndrews Held & Malloy Ltd 500 W Madison St Ste 3400 Chicago, IL 60661 Eric C Woglom Fish & Neave 1251 Ave of the Americas New York, NY 10020

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s/ James W. Armstrong
597956.01

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