Free Letter - District Court of Delaware - Delaware

Case 1:04-cv-01452-JJF Document 72 Filed O9/11/2006 Page 1 of 3
RICHARDS, LAYTGN 8. FINGER _
A PROFESSIDNAL ASSOCIATION
ONE RODNEY SQUARE ¤
ALYSSA M SCHWARTZ F‘.O. Box 55I DIRECT DIAI. NUMBER
p i WILMINGTON, DELAWARE assess-: $02651-7756 ·
(302) G5|_77OO [email protected]
Fax (soar es:-vvor
WWW.R|.F.COM
September ll, 2006 Q
BY ELECTRONIC FILE AND HAND DELIVERY _
The Honorable Joseph J. Farnan, Jr.
United States District Court for
the District of Delaware _
844 King Street -
Wilmington, Delaware 19801 Z
Re: DuPont de Nemours v. Great Lakes Chemical Corporation, C.A. 04- I
1452 - Great Lakes Chemical Corporation’s Motion for Temporary r
Restraining Order and Expedited Preliminary Injunctive Relief Over Q
DuPont’s Representations in the HFC—227 Marketplace
Dear Judge Farnan,
In accordance with your Order requiring DuPont to tile any opposition that it has to Great
Lakes’ above—captioned Motion by 4:30 P.l\/I. today, as counsel to Great Lakes Chemical
Corporation, we received DuPont’s Opposition Brief] in unredacted form, late this afternoon,
which was timely filed with the Court.
Ignoring for now DuPont’s representations that they were purportedly doing Great Lakes l
“a favor" by sending out communications such as that of Huang Bang~Ming into the Taiwanese Q
marketplace, and attempting to point out non-existent “distinctions without a difference" in the
certified translation versus the translation of the business executives who actually received and T
reacted to the DuPont memo, we do wish to respond to the representations by DuPont at page 2 g
of its Brief, which relate to DuPont’s and Great Lakes’ attempts to resolve this dispute without
the Court’s intervention. To that purpose, we have attached, as Exhibit A, the chain. of e—rnails ‘
that were generated on Friday, September 8, 2006 — in an effort to describe exactly what the p
parties discussed and why Great Lakes and DuPont were not able to reach resolution, so as to
continue requiring this Court’s consideration of Great Lakes’ Motion. The yellow highlighting _
that accompanies this e-mail trail was added by Great Lakes and did not appear in the original e- E
mails.
RLFI-3057124-l .

Case 1:04-cv-01452-JJF Document 72 Filed O9/11/2006 Page 2 of 3
The Honorable Joseph J. Farnan, Ir.
September ll, 2006
Page 2
At the outset, DuPont did, indeed, offer to work with Great Lakes/Chemtura on issuing a
joint statement “aimed at removing any perceived confusion regarding the communication i
referred to in Great Lakes’ Motion." See Pg. 5, Item 1, of Ex. A. But, DuPont’s “willingness" to
prepare and release a joint statement was conditioned on Great Lakes’ immediate withdrawal of t
its pending Motion without prejudice — even before the parties would begin addressing the _ ;
problem. See Page 5, Item 2, of Ex. A. Worse yet, the Court will notice complete silence from l
DuPont on the issue of reasonable effort being undertaken to ensure that this "perceived
confusion" does not arise in the future. }_
Within hours of DuPont’s proposal, Great Lakes responded by saying that it would work
with DuPont on the joint statement, as well as a list of appropriate recipients, towards correcting
the record with regard to Great Lakes’ ability to manufacture and sell I-IFC—227. See Ex. A, Page
3, Item l. In fact, in that same e-mail, Great Lakes agreed to withdraw its Motion immediately
upon agreement with regard to the statement and the list of recipients as outlined in Item l. See A
Ex. A, Page 3, Item 2. With regard to the “future” and, notably, without even conditioning their
withdrawal of the Motion without prejudice on it, Great Lakes raised the need for an agreement
with DuPont to ensure that DuPont does not issue communications similar to the accused memo
during the pendency of this litigation — contemplating that language can be crafted to avoid the
damaging suggestions that were injected into the marketplace. See Ex. A, Page 3, Item 4. .
In response to that offer, Great Lakes was advised by DuPont that they cannot (will not) I
agree with regard to "the future" — and would not agree with any of the proposals if Great Lakes
did not withdraw its Motion on Friday, regardless of whether corrective communications to the
marketplace were even initiated, much less distributed to the appropriate recipients. See Ex. A,
Page 2, il 2. In that same communication, DuPont defended its actions by noting that nothing in ¥
the accused memo was ever "said about Great Lakes/Chemtura" — as a defense to the I
disparagement done to Great Lakes. See Ex. A, p. 2, jj 4. DuPont reiterated its refusal to Z
"address the future," as well as its willingness to address a corrective communication only if
Great Lakes immediately withdrew the Motion pending before this Court. See Ex. A, p. 2, ji 5.
In essence, DuPont’s perspective of the damage that has been and will continue to be
done to Great Lakes in the marketplace as a result of communications such as Huang Bang- ‘
Ming’s, would be addressed by way of a corrective letter to the recipients of the accused memo,
as long as DuPont did not have to commit to avoiding such communications in the future — and
only if Great Lakes withdrew its pending Motion before the Court "before" DuPont would even
“consider" a letter of clarification. See Ex. A, Page l, jj 3 of Schaeffer e—mail, and Pages l—2, 1] 2
of Flaherty e-mail.
We believe that DuPont’s recognition of perceived confusion in the marketplace and their
intransigence in addressing it now, without Great Lal DuPont’s outright refusal to address the avoidance of such communications in the future, is more
telling than all of the excuses that DuPont offers to this Court in defending its actions. Certainly,
had this “shoe been on the other foot" and involved Great Lakes’ making representations like
ru.r1-3057124-1 .

Case 1 :04-cv-01452-JJF Document 72 Filed O9/11/2006 Page 3 of 3
The Honorable Joseph J. Farnan, Jr.
September ll, 2006
Page 3 E
this in the marketplace, all four of the concerns raised by Ms. Flaherty’s e-mail would have been
resolved last Thursday — instead of remaining pending before this Court.
Counsel looks forward to further discussing this matter with Your Honor during
tomorrow‘s teleconference. E
Respectfully,
Al ssa M. Schwartz (#4351)
Aivrszjmk °
cc; Clerk of the Court (by electronic file and hand delivery)
Richard L. Horwitz, Esquire (by electronic file, electronic mail and hand delivery)
Bruce D. DeRenzi, Esquire (by electronic mail) Q
John T. Gallagher, Esquire (by electronic mail) F
Frederick L. Cottrell, III, Esquire p
R.LFl-305712-4-I