Free Brief in Opposition to Motion - District Court of Colorado - Colorado

Case 1:04-cv-00435-REB-MJW

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO _________________________

JON F. MCCLELLAND, on behalf of himself and§ all persons similarly situated, § § Plaintiff, § § v. § § DIRECTV, INC., § HUGHES ELECTRONICS CORPORATION, § GENERAL MOTORS CORPORATION,§ YARMUTH WILSDON CALFO, PLLC,§ GREER, HERZ & ADAMS, L.L.P., STUMP,§ STOREY, CALLAHAN & DIETRICH, P.A., § DIRECTV END USER DEVELOPMENT§ GROUP, § DIRECTV END USER RECOVERY PROJECT,§ LLC, § SECURE SIGNALS INTERNATIONAL,§ MCGINNIS GROUP INTERNATIONAL, LLC, § THE NEWS CORPORATION, LTD., § FOX ENTERTAINMENT GROUP, INC., and§ DOES 1 through 50 inclusive, § § Defendants. § § §

Civil Action No. 04-RB-0435 (MJW) Filing Date: March 10, 2004

D R C V S O P ST O T P A N IFS MO I N F R VACATING OR IE T ' P O II N O L I TF ' TO O MODIFICATION OF THE ORDER GRANTING DEFENDANTS' MOTION TO COMPEL ARBITRATION Defendants DIRECTV, Inc.; Hughes Electronics Corporation; General Motors Corporation; Yarmuth Wilsdon Calfo; PLLC, Greer, Herz, & Adams, L.L.P.; Stump, Storey, Callahan & Dietrich, P.A.; DIRECTV End User Development Group; DIRECTV End User Recovery Project, LLC; Secure Signals International; McGinnis Group International, LLC; The News Corporation, Ltd.; and Fox Entertainment Group, Inc. (hereinafter referred to collectively as "DIRECTV") hereby oppose p i i'm t no aa om d yh C ut Order compelling arbitration in this matter. (Dkt ln fs o o tvct r oi t s ors a tf i e f i '

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# 27.) Plaintiff and DIRECTV were parties to a written agreement compelling arbitration of the claims plaintiff asserts against DIRECTV in this action. This Court, quite correctly, ruled that because the parties agreed to arbitrate the instant dispute, and because there was no policy or statute that rendered the claims non-arbitrable, and because the agreement to arbitrate is not unconscionable, t pre w u b cm ee t a iao o p i i'c i s See Order Granting Motion to h a i ol e o pld o r t t n f ln fs lm . e ts d l bri a tf a Compel Arbitration dated December 9, 2004, attached hereto as Exhibit 1. Plaintiff has not shown any compelling reason why this C ut pi rl gsol b m d i o oe und Ide, ors r ru n hu e oie r vr re. ned ' o i d fd t p i i ng c t m n o svr i pr n f ti h dsr t no h "f r" oi tt ln f el t o et n ee lm ot ta sn i ec p o f i e ot t n ie a tf e s i a a c s ii s f s ia arbitration of this matter, and the one additional case cited by plaintiff adds nothing to his argument. DR C Vacri lr us t C utey ln fseustvcto m d yh C ut IE T cod g e et h ordn p i i'r et aa r oi t s ors ny q s e a tf q o e f i ' prior ruling compelling plaintiff to arbitrate his claims against DIRECTV in accordance with the t m o t pre'gem n ad t i t action pending completion of such arbitration. e s fh a i ar et n s y ghis r e ts e , an Argument The Federal Arbitration Act is designed, among other things, to provide a speedier and less costly alternative to litigation. See Allied-Bruce Terminix Companies, Inc. v. Dobson, 513 U.S. 265, 280 (1995) (citing H.R.Rep. No. 97-542, p.13 (1983)). In order to obtain relief under Section 3 of the Arbitration Act, the movant is required to show a written agreement to arbitrate and that the claims asserted are within the scope of such agreement. See Williams v. Imhoff, 203 F.3d 758, 764 (10th Cir. 2000). The Federal Arbitration Act embodies a liberal federal policy favoring arbitration, ad ay ob cne i t soe friali ushu b r o e if ooa iao, n "n dut ocr n h cp oa t b s esol ee l dna rfr ttn s ng e br e s d sv v b ri " Mitsubishi v. Soler Chrysler-Plymouth, Inc.,7 US646618)B i tm , e c" ae 43 ..1,2 (95. yt e st A tl vs sr h e no place for the exercise of discretion by a district court, but instead mandates that district courts shall direct the parties to proceed to arbitration on issues as to which an arbitration agreement has be s nd Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218 (1985). Where there is no en i e. g "

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"express provision excluding a particular grievance from arbitration . . . only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail." United Steelworkers of Am. v. Warrior & Gulf Nav. Co., 363 U.S. 574, 585 (1960). A ep i dn e i e w p i i'hl sxln idtl l ,lnfs aae a b o a tf f hearted and designed-to-fail effort at obtaining a fee waiver from the AAA is not sufficient to oe o eh sog o c f oi a iao.nt dt C uthu retlnfs oo t vr m t t n plya r g r t t n I e , e or ol e cp i i'm tno c er i v n b ri sa h s d j a tf i reconsider, until and unless he fully and in good faith explores the availability of fee waivers or reimbursement available to him in arbitration proceedings. 1. Plaintiff Misrepresents the Purported Financial Obstacles to Arbitration

In his motion, plaintiff spins a lengthy tale about the alleged hardships he has encountered and will continue to face if forced to arbitrate this dispute. However, plaintiff misrepresents the costs he will be asked to pay to have the arbitrator make an initial decision about this case and whether or not it may proceed as a class action. Further, plaintiff has not exhausted the fee options available to him, preferring instead to come back to this Court after a half-hearted attempt to seek a fee waiver from the AAA that plaintiff clearly hoped and designed to fail. As in his previous motions, plaintiff alleges that he will be forced to pay greater costs to arbitrate than than he would to litigate this case. Plaintiff alleges that arbitration will involve "am no$, 0 l $0 0 p sn dioat uad [sic] odlria ia res ad py etf1 0 p s 2, 0 l a ad i l osns 0 u 0 u tn h foa n r tt f , n ls b ro e " that such potential costs are unreasonable.1 Pa tf Motion at 8. These assertions, however, lack ln fs i i' merit. First, the parties' arbitration will be conducted by the American Arbitration Association ("AAA") according to its rules. The AAA rules regarding arbitration costs are "models for fair cost and fee allocation," Green Tree Fin. Corp. ­Alabama v. Randolph, 531 U.S. 79, 95 (2000) (Ginsburg, J., concurring and dissenting), and permit parties to seek fee waivers in cases of hardship.
1

Plaintiff also seems to grossly underestimate the cost of litigating his class action claims given his assertion that his cusls m r ta wln t avne om loto poeui ay l s co" u ntn a iao cs , onei" oehn iig o dac nr acs f rsct g n c s at n bt o ay r t t n ot l s n a i bri s leaving out any mention of what aony'es i teo li t g cs o tim gi d,rn o eli t n t resf m g b frig i a ae fh an ueo ay t rig i t e h t an s t h t ao epne. ln fs t n t . xess Pa tf Mo o a8 i i' i

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As plaintiff discusses in his Motion, the AAA has a well-established procedure through which it ak fr e f b pof fn plat i b i tpy Isc ahwn im d, e A wl sso vri l ro o a ap cn sn it o a.fuh so i s aet A A i ia e i ' a ly g h l make accommodations for that applicant in order to allow his claim to be heard by an arbitrator. Plaintiff has submitted correspondence with the AAA that shows he has refused to provide the financial information the AAA requires to decide whether a fee waiver is appropriate. As set out ii i tl tro ln f t A A" nt n i lt tp i i, e A requires that the requesting party provide financial details s ia ee a tf h substantiating its claim of extreme hardship in the enclosed Affidavit of Hardship and include copies of Federal Income Tax Returns (with schedules) from the past two years and bank statements for the past three months.Letter dated Feb. 11, 2005, Exhibit 4 tPa tf Moo ( paiadd. " o lnfs t ne hs de) i i' i m s Despite repeated requests from the AAA, plaintiff refused to provide any tax returns to support his claims of financial hardship. See letters dated Feb. 25, 2005, Feb. 28, 2005 and March 3, 2005, Exs. 5-7 tPa tf Mo o. an accommodation to plaintiff, th A Aof e tcni ray t r o ln fs t n As i i' i e A f r o os e"n o e ed d h official 3rd party documentation that will confirm income,"uh s sc aW-2 or 1099 forms, in lieu of the required tax return documents. See letter dated April 22, 2005, Ex. 8 t Pa tf Mo o.But o ln fs t n i i' i plaintiff repeatedly refused to provide such alternative documentation. See letters dated May 17, 2005, June 7, 2005, and June 11, 2005, Exs. 9-11 t Pa tf Mo o. o ln fs t n Instead, plaintiff told the i i' i AAA he would not provide further documentation, but nonetheless demanded a waiver from the organization. E .1o ln fs t n x1 tPa tf Mo o. i i' i Even though plaintiff refused to provide verifiable documentation, the AAA nonetheless offered to defer most of the initial filing fee until the conclusion of the case and to require an up front payment of only $1,000 from plaintiff, with the possibility of deferring other fees that would come due after the initial phase of the arbitration in which the arbitrator will dc e ln fseust ei p i i'r et d a tf q o conduct a class-wide arbitration. See letter dated July 15, 2005, Ex. 12 t Pa tf Mo o. o ln fs t n i i' i Plaintiff rejected the AAA proposal, stating that plaintiff would under no circumstances pay more than $1,000 for the arbitration, even though under the proposal plaintiff would be able to ask the

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arbitrator to fairly distribute all costs based on his financial hardship ­ other words, there is no in guarantee plaintiff will ever have to pay more than the initial $1,000, as the arbitrator is free to decide that $1,000 is all that would be fair for plaintiff to pay given his financial situation.2 See letter dated July 16, 2005, Ex. 13 tPa tf Mo o. o ln fs t n i i' i Plaintiff may not refuse to provide crucial financial information to the AAA in requesting a waiver and then come back to this Court complaining that the waiver he got was not generous enough. A similar situation was discussed by the Eighth Circuit in D bi vH w 'E t pi s ob s. a k n rr e, n s e s 198 F.3d 715 (8th Cir. 1999). In that case, purchasers of a mobile home alleged that the home was damaged, and the court compelled the case to arbitration. The mobile home purchasers came back to court protesting the AAA arbitration fees, claiming that the fees made arbitration unconscionable. However, the purchasers had refused to provide the AAA with the financial information it requested, and the court held that because they had so refused, they could not yet claim unconscionability: The AAA, however, has a fee waiver procedure. It decides whether or not to waive, in whole or in part, a fee on the basis of a claimant's financial situation. It is clear, however, from our reading of the evidentiary hearing transcript, that the Dobbinses never fully explored the AAA's fee waiver procedures because Mr. Dobbins refused to provide his family's financial information to the AAA. This is an important step that must be taken before an unconscionability determination can be made. Dobbins, 198 F.3d at 717. The Court also noted that the bulk of the filing fee was based on the millions of dollars the purchasers claimed in damages, and that the complained-o fi f " t fin e i h lg e s e highest fee that the Dobbinses would possibly have to pay and it is also clear that the fee will be much less if a more realistic demand fr a ae i avne, adsget t pr ae o dm gs s dacd n ugs d h uc sr " e e h s "r et r ue dm n fr a ae" n t aa fr f w i rrmt A A Id. at 717 pe n a e cd e ad o dm gs adr gi o ae a ef h A . s d y n e v o e
2

Indeed, plaintiff would not have been obligated to pay the deferred portion of the initial filing fee even at the conclusion of the arbitration, as DIRECTV offered to pay the remaining $2,250 of the filing fee. See, e.g., letter dt A gs520, x1 t Pa tf Mo o. vn i t s f rrm D R C Vi hn,ln fr ue a d uut ,05E .4 o ln fs t n E e wt h of f e i i' i h i e o IE T n adp i i e sd a tf f to move ahead with the arbitration, thus preventing the arbitrator from making a fair cost allocation after arbitration commences. Plaintiff instead insisted that under no circumstances should plaintiff be required to pay any further costs even if the arbitrator determines that the claims here are frivolous and meritless. See, e.g., email chain dated August 14, 2005, between Jeffrey Wilens and Michael Williams, attached hereto as Exhibit 2.

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n.4. T e orhrsoll e i dcn tcni r ln fs nosi aita u et h C ute hu i ws el eo os ep i i'ucnc nb i r m n e dk e i d a tf o ly g s unless and until he provides the required information to the AAA and " l ep r t A A s f l xl e h A ' u y o [s]" e fee waiver procedures in good faith. Further, as in Dobbins,ln fs o p i d filing fees in p i i'cm ln -of a tf ae this case result largely from his grossly overstated claim for damages ­ al s$5 ii t e "te t3 m lo i s a ln m t e o $0 m lo. Pa tf Mo o a4 I t s c cm t csp i i'c i e hr h e r 15 ii " ln fs t n t . n h e i u s ne, ln fs lm d a r ln i i' i e r a a tf a m from the AAA filing fees is self-inflicted and interposed to avoid an arbitration in which plaintiff does not wish to participate. The Court should follow Dobbins and deny relief to plaintiff. Second, plaintiff has not exhausted his options under his arbitration agreement with DIRECTV in his halfhearted efforts to arbitrate his claim. Pa tf a iao ar m n with ln fs r t t n ge et i i' b r i e DIRECTV provides for DIRECTV to consider a written request for reimbursement of the initial filing fee if the AAA r etp i i'r usfr w i rSee Settlement Agreement at 5, attached e c ln fse et a a e j s a tf q o v. as Ex. A to Dkt #5. Though plaintiff has exchanged a few terse emails with DIRECTV stating that he is unwilling to let the arbitrator make an assessment as to how the costs should be divided between the parties, plaintiff has yet to make a formal, written request to DIRECTV showing a legitimate rejection of his waiver request by the AAA. If plaintiff provides all appropriate documentation to the AAA and his waiver request is refused on the merits, DIRECTV is then willing ­ contractually obligated ­ consider a written request from plaintiff that DIRECTV reimburse and to some or all of the required fees. That, however, has yet to occur in this case. In fact, plaintiff has gone to extraordinary lengths to hide from DIRECTV even the limited and unverifiable financial information that he has provided to the AAA and, apparently, as a sealed exhibit to this Court. (Dkt #s 28, 31.) Thus, there is no way DIRECTV could have had any chance to legitimately consider a w ie r usfre r m usm ndeo ln fsi ni hrsi rt e eto f e br etu tp i i'f ac la h . tn q e i e a tf n a d p Indeed, even without pla tf rv i r i ldcm n t no IE T o p i i' i i poi n ea e ou eti tD R C V f ln fs nf d g lb ao a tf financial hardship, DIRECTV has offered to advance all costs necessary to get through the initial

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phase o t a iao ( w i t a ia r i dc e ln fs ru etfr c fh r t t n i h h h r t t wl ei p i i'a m n o a lass-wide e b r i n c e b r o l d a tf g s arbitration) beyond the $1,000 plaintiff is willing to pay. If the arbitrator does not allocate costs for the next phase of arbitration in a way plaintiff can afford, DIRECTV will advance those costs as well. The only thing DIRECTV asked was to preserve its right to ask the arbitrator, at the conclusion of the arbitration, to allocate the costs of arbitration in a fair manner, as permitted by the AAA Rules. See, e.g., AAA Rule R-43(c), Ex. 2 to Dkt #10 at 17 (requiring that in a final arbitratio a a ,t nwr " e d h a ia rhl s st f sepne,n cm est n ad a "potn uhes xess r t t sa as sh e ,xessad o pnao" n m y apro sc f , pne bro l e ee i i ee ad o pnao a ogh pre isc a on a t a ia r e r i ss prpie) n cm est n m n t a i n uh m ut sh r t t dt m n iapor t . i e ts s e bro e e a" DR C V s onecommunicated this offer t p i i'cusln uut ,05 IE T 'cusl o ln fs oneo A gs820: a tf DIRECTV has agreed to advance the $2,250 for the initial filing fee. In addition, to the extent Mr. McClelland demonstrates to the arbitrator that he cannot pay his share o t a ia r f (ro e cs ) DIRECTV has agreed to advance any f h r t t ' e o t r ot, e bro s e h s outstanding balance to the extent not paid by plaintiff. However, DIRECTV is not waiving its right to seek recovery of these amounts (and any other arbitration costs) as the prevailing party if it prevails. Your insistence that DIRECTV do so simply confirms that these claims are baseless ­ like the numerous other putative class just actions you have filed based upon the same facts, which have all been dismissed at the pleading stage. See email chain dated August 14, 2005, between Jeffrey Wilens and Michael Williams, attached hereto as Exhibit 2. Plaintiff rejected this offer, stating that he was unwilling to allow an arbitrator to apportion fees at any point in the arbitration. This position taken by plaintiff is simply unreasonable; neither litigation nor arbitration is a risk-free proposition in which a plaintiff can demand his opponent to py ics r a l s fu o e Pa tf psi only serves to underscore that his lawsuit is a h ot e r e oot m . ln fs oio s s gds c i i' tn unmeritorious and likely to result in an assessment of fees against him if there is any apportionment provision. Plaintiff'c i tb "e en rc ad hr p c" s lm o e bt e aok n a a l e results from his own decision a w d a not to follow the waiver procedures of the AAA and fee reimbursement offered by DIRECTV. Pa tf Mo o a7 ln fs t n t. i i' i

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U tp i i " l ep r " iot n and is unsuccessful in obtaining a waiver from the n lln f f l xl e h p os i a tf u y o s s i from the AAA or reimbursement from DIRECTV, he cannot claim to this Court that the costs of arbitrating this dispute are unconscionable. 2. Discover Bank Is Unavailing to Plaintiff and Does Not Require This Court to Vacate or Modify Its Order Pa tf r i c o Discover Bank v. Sup. Ct., 36 Cal. 4th 148 (2005), does not support his ln fsea e n i i' ln argument. That decision is based upon California state law that does not apply in federal court and the factual circumstances of the case are distinguishable as well. The "liberal federal policy favoring arbitration agreements," Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 24 (1983), is at bottom a policy guaranteeing the enforcement of private contractual arrangements. The Act thus "creates a body of federal substantive law establishing and regulating the duty to honor an agreement to arbitrate." Id. at 25, n.32. " ]abd o l cusl` aqet n o a iaitm sb adesd i a el y [ htoy fa one t tusos fr t b i ute dr e wt hah T w sh i b r ly s h t regard for the federal policy favoring arbitration . . . . The Arbitration Act establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an aeao o w i rdl , r l e e neoa iait' Mitsubishi Motors Corp. v. Soler lgt n f a e e y o ai df s t r t b i. l i v, a k e b r ly " Chrysler-Plymouth, Inc., 473 U.S. 614, 625 (1985) (quoting Moses H. Cone, 460 U.S. at 24-25). The United States Supreme Court expressly held in Green Tree Fin. Corp. v. Bazzle that under the Federal Arbitration Act "the question--whether the agreement forbids class arbitration--is for the arbitrator to decide." See Green Tree Fin. Corp. v. Bazzle, 123 S. Ct. 2402, 2407 (2003). The Court went on to hold that it was reversible error for the District Court to express any opinion on this issue because it would poten ay nl ne h a ia r n i e e wt t a ia r tl i u c t r t t ad n r r i h r t t ' il f e e bro tf e h e bro s exclusive authority to decide this issue. Id. a 20 ( vrn a ia r dc i t pr i t 48 r e i r t t ' eio o e t e s g bro s s n m classwide arbitration because of potential that arbitrator was influenced by District Court dc i ' eio s sn

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in related case). This Court appropriately refrained from expressing any opinion as to whether or not the arbitration agreement forbids or permits classwide arbitration and whether the agreement is unconscionable if classwide arbitration has been contractually waived. F l wn t S pe e ors eio iGreen Tree Fin. Corp., the California Court of o o i h ur C ut dc i n l g e m ' sn A paaot t S pe e ors o i t t e rpiy fl s i a iao ia aeo peldp dh ur C ut hl n h t por toc s d r ttns m trf e e m ' d g ah e a w e b ri t contract to be decided by the arbitrator, not the courts, in cases governed by the FAA. Garcia v. DIRECTV, 115 Cal. App. 4th 297, 303 (2004). The California Court of Appeal explained that "the preemptive effect of the FAA overrides the parties' agreement (in this case) that the arbitrators shall apply California substantive law to the proceeding and makes it immaterial that, under California law, the class arbitration issues would be decided by the court rather than the arbitrator." Id. In direct contradiction of Supreme Court authority, plaintiff cites Discover Bank for the pooio t tc sat n a e a gnr lucnc nb " n t tt C ut ut ae rpsi h "l s co w i r r ee l nosi al adh " e or sm k tn a a i vse ay o e a h m t i tle r i t n Pa tf Mo o a9 Plaintiff overstates the holding of Discover Bank. h n i dt m n i . ln fs t n t. e ia e ao " i i' i The Discover Bank court did not hold that a class actions waiver is necessarily unconscionable, but t t" least under some circumstances, the law in California is that class action waivers in h , at a consumer contracts of adhesion are unenforceable, whether the consumer is being asked to waive t r htc sat nigt n rh r htc s i a iao. Id. at 153 (emphasis added). h i t l sco li i ot i t l s d r t t n eg o a i t ao e g o a w e bri " Nothing in the decision extends the reach of the holding beyond consumer agreements. Discover Bank does not apply in the instant case for a number of reasons. The Discover Bank court specifically mentioned that the case involved a one-sided change in a consumer contract for a credit card that took effect without any action or acknowledgement from the plaintiff. See id. at 15961. Here, the circumstances could not be more dissimilar ­ case involves not a consumer credit this card transaction, but a six-page settlement agreement that plaintiff negotiated and signed in exchange for DIRECTV dropping any lawsuit against plaintiff for his piracy of satellite services. Plaintiff had a choice and was well aware of the contents of the agreement when he signed.

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Moreover, the Discover Bank hl n iseico ht r a state court can, consistent o i s pc it w e e " dg f h with the FAA, hold a class action waiver appearing in a contract of adhesion for arbitration unconscionable or contrary to public policy, as part of an arbitration-neutral law that finds all such w i ruefr al"Id. at 171 (emphasis added). The court determined t t e A 'mandate a e nnoc b . vs e e h t F As ah to enforce arbitration contracts would not preclude state courts from enforcing state laws generally prohibiting class waivers; however, the court implied that its holding did not apply similarly to federal courts. See, e.g., id. at 172 n.7 (dismissing a potential problem under the FAA with enforcing c sa iao ntosn do yh preb nt ghti s nl r ht ret n [fh l sr t t n ocnet tb t a i y o n t " iuc aw e esco 5ot a bri e e ts i a t e h i e F A ap e ts tcut" The Discover Bank court did not purport to instruct a federal court, A ]plso te or. i a s) bound by Supreme Court authority, how to apply the body of substantive federal law concerning arbitration. The court had no authority to do so; the Supreme Court has mandated that federal courts defer to the arbitrator the decision of whether an arbitration agreement permits class-wide arbitration. Green Tree Fin. Corp., 123 S.Ct. at 2407. The California cases that plaintiff has cited, including Discover Bank, do not apply here because ()h csivrd f etrma cnu ecn atfdei "uh sr i a rl 1t saes e ie nf i y f r o "osm rotcoahs n sc ac d cr u r o et d e cagsad 2 t s aesn ee lorads ot ld yh F Aadh S pe e ors hne,n ()h cs iif r cutn icn o e b t A n t ur C ut i da rl e e m ' holding in Green Tree Fin. Corp. Conclusion For the reasons set forth above, Defendants respectfully request that this Court deny p i i' Mo o t V ct o Moi t O drG at gD f dn 'Mo o t C m e ln fs t n o aa r d y h re r i e nat a tf i e f e nn e s t n o o pl i Arbitration and issue an Order compelling plaintiff to submit his claims to arbitration pursuant to the arbitration clauses in the Settlement Agreement ­ pursuant to Order of this Court ­ a timely and in fashion.

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Respectfully Submitted, Dated: November 7, 2005 By: s/Michael E. Williams Michael E. Williams QUINN EMANUEL URQUHART OLIVER &HEDGES, LLP 865 South Figueroa Street, 10th Floor Los Angeles, California 90017-2543 Telephone: (213) 443-3000 Facsimile: (213) 443-3100 By: s/John A. DeSisto________________________________ John A. DeSisto FEATHERSTONE DESISTO LLP 600 17th Street, Suite 2400 Denver, Colorado 80202 Phone: (303) 626-7100 Attorneys for Defendants DIRECTV, Inc.; Hughes Electronics Corporation; General Motors Corporation; Yarmuth Wilsdon Calfo, PLLC, Greer, Herz, & Adams, L.L.P.; Stump, Storey, Callahan & Dietrich, P.A.; DIRECTV End User Development Group; DIRECTV End User Recovery Project, LLC; Secure Signals International; McGinnis Group International, LLC; The News Corporation, Ltd.; and Fox Entertainment Group, Inc.

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CERTIFICATE OF SERVICE I hereby certify that on November 7, 2005, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following email addresses: Jeffrey Wilens Lakeshore Law Center [email protected]

s/John A. DeSisto