Free Answering Brief in Opposition - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

E.I. DU PONT DE NEMOURS AND COMPANY Plaintiff, v. GREAT LAKES CHEMICAL CORPORATION, Defendant.

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C.A. No. 04-1452 (JJF)

PLAINTIFF DUPONT'S OPPOSITION TO DEFENDANT GREAT LAKES' MOTION TO AMEND THE SCHEDULING ORDER

OF COUNSEL: Bruce D. DeRenzi John T. Gallagher MORGAN & FINNEGAN, L.L.P. 3 World Financial Center New York, New York 10281-2101 Tel: (212) 415-8700 Dated: July 17, 2006

Richard L. Horwitz (#2246) David E. Moore (#3983) POTTER ANDERSON & CORROON Hercules Plaza, 6th Floor 1313 North Market Street P.O. Box 951 Wilmington, Delaware 19801 Tel: (302) 984-6000 Attorneys for Plaintiff E. I. du Pont de Nemours & Company

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TABLE OF CONTENTS Page(s) TABLE OF AUTHORITIES ...............................................................................................ii INTRODUCTION ...............................................................................................................1 NATURE AND STAGE OF THE PROCEEDINGS ..........................................................2 SUMMARY OF ARGUMENT...........................................................................................2 STATEMENT OF FACTS ..................................................................................................4 I. II. The Filing Of Great Lakes' Motion On The Eve Of The July 31st Deadline For All Document Production.......................................4 Great Lakes' Pattern Of Delay Before And During This Litigation......................................................................................................5 Under The Court's Scheduling Order, Document Production And Other Fact Discovery On All Issues Is Imminent And Should Not Be Delayed .......................................................7 DuPont Would Be Prejudiced By The Proposed Bifurcation Of Discovery................................................................................................8 Bifurcation Of Discovery Would Negatively Impact The Prospect Of Settlement ..............................................................................10 Great Lakes' Proposed Bifurcation Is Unsupported By Any Authority And Rests Solely On Attorney Argument.................................11 Discovery On The Patent Infringement And Contract Issues Will Involve Overlapping Documents And Witnesses..............................13

ARGUMENT.......................................................................................................................7 I.

II. III. IV. V.

CONCLUSION..................................................................................................................15

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TABLE OF AUTHORITIES Page(s) CASES Affymetrix, Inc. v. PE Corp., 219 F. Supp. 2d 390 (S.D.N.Y. 2002) ...................................................................12 Enzo Life Sciences, Inc. v. Digene Corp., C. A. No. 02-212-JJF, 2003 U.S. Dist. LEXIS 10202 (D. Del. June 10, 2003)..........................................................................................12 GB Biosciences Corp. v. Ishihara Sangyo Kaisha, Ltd., 270 F. Supp. 2d 476 (D. Del. 2003).......................................................................11 GE Harris Railway Elecs., LLC v. Westinghouse Air Brake Co., C. A. No. 99-070-GMS, 2004 U.S. Dist. LEXIS 16329 (D. Del. Aug. 18, 2004) .........................................................................................11 In re Innotron Diagnostics, 800 F.2d 1077 (Fed. Cir. 1986) .............................................................................11 Willemijn Houdstermaatschaapij BV v. Apollo Computer, Inc., 707 F. Supp. 1429 (D. Del. 1989)............................................................................9

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INTRODUCTION Plaintiff E.I. du Pont de Nemours and Company ("DuPont") opposes the motion of defendant Great Lakes Chemical Corporation ("Great Lakes") to amend the Scheduling Order in this case so as to bifurcate fact discovery. The Court's December 1, 2005 Scheduling Order requires that document production, responses to contention interrogatories and identification of fact witnesses on all issues be completed by July 31, 2006, and that all fact discovery be completed by October 31, 2006. (D.I. 40). By its motion, Great Lakes boldly proposes that discovery proceed for the next four (4) months solely with respect to Great Lakes' contract defense and counterclaim, with discovery on all other issues, including DuPont's patent infringement claim, stayed for five (5) months until at least November 2006 -- more than two (2) years after the November 2004 filing of this suit, and approximately one (1) month after the October 31st cutoff date for all fact discovery. Great Lakes also attempts to build additional delay into its Proposed Order by allowing for the continued stay of discovery on all other issues, including DuPont's patent infringement claim, until the Court rules on all summary judgment motions based on Great Lakes' contract defense and counterclaim filed prior to expiration of the proposed five (5) month stay. The present motion, brought nearly seven (7) months after the Court's entry of the Scheduling Order and on the eve of the July 31st deadline, is merely the latest of several failed attempts by Great Lakes to postpone providing any discovery to DuPont on the sole issue upon which this case was commenced -- Great Lakes' infringement of DuPont's asserted patent. It is time for this patent infringement case to proceed on the merits. Great Lakes' present motion should be denied.

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NATURE AND STAGE OF THE PROCEEDINGS This is a patent infringement action brought by DuPont in November 2004 charging Great Lakes with infringement of DuPont's U.S. Patent No. 6,376,727 ("the `727 patent"). (D.I. 1). The `727 patent is directed to specific azeotropic compositions comprising hydrogen fluoride (HF) and heptafluoropropane (HFC-227). Under the provisions of the Scheduling Order in this case, fact discovery has been ongoing for six (6) months and is scheduled to conclude October 31, 2006. (D.I. 40). Initial disclosures have been exchanged and i terrogatories and document n requests have been served and responded to by both parties. The parties are negotiating a proposed Protective Order and, following five (5) months of delay by Great Lakes, are now in substantial agreement on its terms and expect to submit it shortly for entry by the Court. The parties have collected, reviewed and are preparing for production documents in response to document requests served six (6) months ago. Under the Scheduling Order, the parties are required to complete document production, respond to contention interrogatories and identify fact witnesses on all issues by July 31, 2006. SUMMARY OF ARGUMENT Great Lakes' motion to bifurcate fact discovery into two phases, permitting unfettered discovery directed to Great Lakes' contract defense and counterclaim while staying all discovery on DuPont's patent infringement claim, should be denied: 1. Great Lakes' motion would eviscerate the Court's Scheduling

Order mandating completion of document production on all issues by July 31, 2006 and all fact discovery by October 31, 2006. Great Lakes' motion would delay advancement

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of this case by permitting discovery relating exclusively to Great Lakes' contract defense and counterclaim for the next four (4) months, while completely halting discovery on all other issues, including Great Lakes' infringement of DuPont's `727 patent. The parties have substantially completed their efforts in recognition of the July 31st deadline for document production. Over the past six (6) months, DuPont has collected, reviewed and prepared its documents for production in response to Great Lakes' document requests. Great Lakes told this Court almost four (4) months ago that it was in the process of doing the same in response to DuPont's document requests. 2. Bifurcation of discovery so as to permit discovery solely with

respect to Great Lakes' contract defense and counterclaim over the next four (4) months, combined with the opportunity to file summary judgment motions based only on Great Lakes' contract defense and counterclaim, would be severely prejudicial to DuPont. Great Lakes' motion would stay all discovery on DuPont's patent infringement claim so that the first document and Great Lakes' deponent on the patent infringement claim would not be produced until more than two (2) years after the filing of this case. Great Lakes' motion would also prejudice DuPont by substantially delaying the final disposition of this patent infringement action. 3. Bifurcation of discovery would result in an inefficient overlap in

discovery because the patent infringement claim and contract defense and counterclaim will both involve some of the same documents and multiple depositions of some witnesses. 4. Bifurcation of discovery would adversely impact the prospect of

settlement. Permitting discovery on Great Lakes' contract defense and counterclaim to

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proceed while staying discovery on DuPont's patent infringement claim would severely alter the balance of the issues in the case and the attendant risks to the parties, dramatically favoring Great Lakes. STATEMENT OF FACTS I. The Filing Of Great Lakes' Motion On The Eve Of The July 31st Deadline For All Document Production With full knowledge of all the claims, defenses and counterclaims in this patent infringement case, DuPont and Great Lakes agreed upon the provisions of the Scheduling Order, which this Court entered on December 1, 2005. (D.I. 40). Nothing in the Scheduling Order suggests that either party wished to bifurcate discovery, and there have been no amendments to the pleadings or addition of parties to warrant any lastminute changes to the Scheduling Order. Under the Court's Scheduling Order, document production, responses to contention interrogatories and identification of fact witnesses on all issues must be completed by July 31 st and all fact discovery must be completed by October 31, 2006. Now, on the eve of the July 31st deadline, Great Lakes seeks to completely eviscerate the Court's Scheduling Order. Great Lakes proposes that the next four (4) months -- through at least the end of November 2006 and beyond the October 31, 2006 cutoff for all fact discovery -- be devoted exclusively to discovery relating to Great Lakes' contract defense and counterclaim. This would mean that discovery on all other issues, including

DuPont's patent infringement claim, would be stayed for at least five (5) months. Great Lakes has also built into its Proposed Order a mechanism to delay discovery even further on all issues other than its contract defense and counterclaim. Specifically, Great Lakes requests that all other discovery not commence until after the Court has ruled on all

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summary judgment motions relating to Great Lakes' contract defense and counterclaim filed prior to expiration of the proposed five (5) month stay. (Proposed Order, ¶ 4). As a result, not a single document would be exchanged or deposition taken on the primary issue in the case -- the infringement by Great Lakes of DuPont's `727 patent -- until more than two (2) years after the filing of the Complaint in November 2004. Great Lakes' motion is brought nineteen (19) months after the November 2004 filing of this suit by DuPont, and six (6) months after the commencement of fact discovery on all issues. The parties have already taken substantial steps to comply with the October 31st fact discovery cutoff date, including the exchange of initial disclosures and service and response to interrogatories and document requests. In addition, the parties have expended significant resources to meet the upcoming July 31st deadline for document production on all issues. For example, DuPont has been actively engaged in the collection and review of relevant documents, and is readying them for production. Similarly, Great Lakes represented to this Court almost four (4) months ago that it was "presently collecting what is likely to comprise nearly one-half million or more documents responsive to DuPont's . . . document requests." document production by both parties on all issues is imminent. II. Great Lakes' Pattern Of Delay Before And During This Litigation As this Court will recall from DuPont's opposition to Great Lakes' earlier failed motion to dismiss, DuPont attempted to engage Great Lakes in substantive discussions for eight (8) months prior to the filing of this suit to confirm its beliefs and conclusions regarding the applicability of the `727 patent to Great Lakes' manufacture of HFC-227. (D.I. 17 at 9-11). Throughout that time, Great Lakes simply contended that (D.I. 52 at 6). Thus,

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the claims of the `727 patent were not applicable to Great Lakes' manufacture of HFC227, but offered no explanation or a single fact to support that assertion. Although DuPont attempted to engage Great Lakes in an information exchange, Great Lakes delayed progress and offered unworkable proposals that prevented DuPont's outside counsel and technical consultant from having access to pertinent information that could have assisted in the expeditious resolution of this dispute. Great Lakes' conduct of delay continued after the commencement of this litigation. For example, Great Lakes postponed answering the patent infringement

allegations in DuPont's Amended Complaint, and instead moved to dismiss the patent infringement claim and, in the alternative, sought to stay the patent infringement action pending mediation. (D.I. 10). The Court denied the motion to dismiss, and rejected Great Lakes' attempt to stay the action pending mediation. (D.I. 28 at 13-14). Following denial of its motion to dismiss or stay the patent infringement claim, Great Lakes waited more than five (5) months before responding to DuPont's proposed Protective Order. To no great surprise, Great Lakes expressly objected to providing substantive responses to DuPont's discovery requests because the Court had not yet entered a Protective Order. In keeping with the tactic of delay, and ignoring the date expressly set forth in the Scheduling Order for the filing of case dispositive motions, Great Lakes next filed a motion for leave to file an early summary judgment motion on the contract defense and requested a stay of all discovery on the patent infringement claim during consideration of that motion. (D.I. 46). The Court also denied this motion, stating that "the Court will not consider Defendant's request for a stay of discovery." (D.I. 56).

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By its present motion, Great Lakes now moves to bifurcate so as to allow discovery to proceed only regarding Great Lakes' contract defense and counterclaim, and to stay discovery on all other issues, including DuPont's patent infringement claim -- a transparent attempt to reargue its unsuccessful earlier motion. (D.I. 46). Clearly, the present motion is merely the latest of a series of misguided attempts by Great Lakes to thwart DuPont's efforts, both before and during this suit, to address Great Lakes' infringement of the `727 patent. ARGUMENT I. Under The Court's Scheduling Order, Document Production And Other Fact Discovery On All Issues Is Imminent And Should Not Be Delayed Under the Court's December 1, 2005 Scheduling Order (D.I. 40), document production, responses to contention interrogatories and identification of fact witnesses must be completed by July 31st . DuPont has been actively collecting,

reviewing and preparing for the production of documents responsive to Great Lakes' one hundred six (106) individual document requests relating to all issues in this litigation. In addition, Great Lakes represented to the Court almost four (4) months ago in its Reply on its Motion For Leave to File an Early Summary Judgment Motion that, mindful of the July 31st deadline, it was "presently collecting what is likely to comprise nearly one-half million or more documents responsive to DuPont's . . . document requests" directed to all issues in the case, and that those documents would be "reviewed for privilege, confidentiality designation and potential relevance redactions, prior to copying and production to DuPont." (D.I. 52 at 6-7). Incredibly, Great Lakes now comes before this Court on the eve of that deadline, seeking to modify the discovery plan agreed to by the parties and ordered by the

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Court so that the next four (4) months, one month beyond the cutoff date contemplated by the Court or the parties for the completion of all fact discovery, will be devoted solely to Great Lakes' contract defense and counterclaim. At the same time, Great Lakes'

proposed motion would postpone for at least five (5) months any discovery on all other issues, including DuPont's patent infringement claim. In an effort to justify this attempt to delay discovery on DuPont's patent infringement claim, Great Lakes strains to distinguish the length, expense and complexity of expected discovery on the patent and contract issues. However, this argument is belied by Great Lakes' own statements. For example, Great Lakes argues that the contract issue will "require only a small number of depositions of witnesses," but then suggests that a four (4) month period for documents and depositions on the contract issue alone, more than the entire period for depositions on all issues in the case, is needed. (Great Lakes Mem. at 6). Great Lakes also maintains that the patent issue is lengthy and complex, allegedly involving "many hundreds of thousands of documents and several dozens of depositions," but then states that such discovery "could be completed in significantly less time than the [3 month] discovery period as to all of the issues." Id. at 7, 9. Great Lakes also ignores that it told this Court in its failed Motion For Leave to File an Early Summary Judgment Motion that this case would involve "extensive fact and expert discovery on both the patent and contract disputes." (D.I. 46 at 1) (emphasis added). II. DuPont Would Be Prejudiced By The Proposed Bifurcation Of Discovery It is readily apparent that DuPont would be significantly prejudiced if the Court allowed Great Lakes' proposed bifurcated discovery. For at least the next four (4) months, discovery directed solely to Great Lakes' contract defense and counterclaim

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would proceed while discovery on all other issues, including DuPont's claim of patent infringement, would be stayed, even though Great Lakes has not produced a single document responsive to DuPont's document requests served as early as December 2005. One can hardly imagine a scenario that would be more prejudicial to DuPont, particularly where DuPont began this controversy with the filing of its patent infringement complaint. Great Lakes' proposed bifurcation of discovery would also significantly alter the various deadlines for other activities in this litigation, ultimately delaying trial on the merits. 1 This Court has recognized that prejudice "may simply amount to unfair delay of the final disposition of the matter." See, e.g., Willemijn Houdstermaatschaapij BV v. Apollo Computer, Inc., 707 F. Supp. 1429, 1435 (D. Del. 1989) (denying motion to bifurcate brought "on the eve" of the date responses to interrogatories were due). The Court and DuPont have been forced to expend a great deal of time and effort addressing Great Lakes' various legal maneuverings and thinly veiled efforts to delay discovery on DuPont's patent infringement claim. In fact, having failed twice already, the present motion represents Great Lakes' third attempt at the same dilatory game. Like Great Lakes' previous motions, this motion is without merit and should be denied. Great Lakes' argument tha t DuPont has demonstrated little urgency in pursuing this case because DuPont has not yet produced documents in response to Great Lakes' requests for production misses the mark. Apart from the fact that the deadline for

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Great Lakes assertion that the requested bifurcation will not "significantly delay" the ultimate resolution of this lawsuit is baseless. Great Lakes does not even attempt to detail how its proposed bifurcated discovery schedule and stay of at least five (5) months -- and longer if summary judgment motions on the contract issues are filed -- would impact the various other deadlines in the Scheduling Order. (Great Lakes Mem. at 2). -9-

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document production is now imminent, Great Lakes conveniently fails to inform the Court that neither party has yet produced any documents. Great Lakes also does not inform the Court that DuPont sent a proposed Protective Order to Great Lakes in December 2005, and that Great Lakes deliberately withheld response for five (5) months, thereby ensuring that there would be no early production of documents in this case. 2 Great Lakes' argument that it would somehow be prejudiced if its motion were denied is specious. With full knowledge of all the claims, defenses and

counterclaims in this action, Great Lakes agreed to the discovery plan in the Court's Scheduling Order -- the same discovery plan under which it now incredibly claims it would somehow be "prejudiced." Specifically, Great Lakes argues that it would be prejudiced by having to produce documents to a competitor. However, any production will be made pursuant to a Protective Order -- the terms of which will be agreed upon by Great Lakes and entered under order of the Court. Great Lakes itself acknowledges the frailty of this argument, admitting that production of documents to a competitor "is not uncommon in patent infringement cases." infringement case is no different. III. Bifurcation Of Discovery Would Negatively Impact The Prospect Of Settlement It is readily apparent that the proposed bifurcation of discovery would severely impair the balance of the issues in the case and the attendant risks to both (Great Lakes Mem. at 8). This patent

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Great Lakes' additional argument that DuPont has shown little urgency in pursuing this case because it waited after filing the Complaint before serving Great Lakes is equally frivolous. As Great Lakes knows, DuPont delayed service only because it was hopeful that Great Lakes would finally demonstrate a willingness to reach agreement with DuPont on a meaningful exchange of information regarding DuPont's claim of patent infringement, and thereby avoid litigation.

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parties, significantly favoring Great Lakes. In particular, the proposed motion, which would permit unfettered discovery regarding Great Lakes' contract defense and counterclaim while halting discovery on all other issues including DuPont's claim of patent infringement, would be counter-productive to settle ment because the parties will be deprived of important information that would assist them in evaluating the essential elements of all of the issues and in assessing the risks associated with an adverse decision on those issues. With bifurcation, any motivation to settle the case will be removed, at least for the period of stay prior to any discovery on the other issues in the case, including DuPont's patent infringement claim. Moreover, such a stay would serve to exacerbate the already present problem of repeated delay in advancement of this case on the merits. IV. Great Lakes' Proposed Bifurcation Is Unsupported By Any Authority And Rests Solely On Attorney Argument Great Lakes fails to cite a single authority that would support the proposed relief it now seeks. Instead, Great Lakes cites four impertinent cases. Two cases, GB Biosciences Corp. v. Ishihara Sangyo Kaisha, Ltd., 270 F. Supp. 2d 476 (D. Del. 2003) and GE Harris Railway Elecs., LLC v. Westinghouse Air Brake Co., C. A. No. 99-070GMS, 2004 U.S. Dist. LEXIS 16329 (D. Del. Aug. 18, 2004) (Ex. A hereto), do not warrant discussion here because they concern general principles of contract interpretation and have no bearing on the present motion to bifurcate discovery. The other two cases concerning bifurcation of antitrust and patent issues, discussed below, do not even remotely support the requested bifurcation of discovery of a patent claim and contract defenses and counterclaims. Great Lakes' reliance on In re Innotron Diagnostics, 800 F.2d 1077 (Fed. Cir. 1986) is misplaced. This case involved a review of a district court decision to

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separate the trial of patent and antitrust claims, not the separation or bifurcation of discovery. Thus, this case is of no value to Great Lakes here, where it seeks bifurcation of discovery "while preserving the entire case for a single trial on the merits." (Great Lakes Mem. at 1). Similarly, Great Lakes' citation to Affymetrix, Inc. v. PE Corp., 219 F. Supp. 2d 390, 398-99 (S.D.N.Y. 2002) is equally unavailing. There, the Court refused to bifurcate discovery on patent and contract-related claims (as well as certain aspects of antitrust and unfair competition claims), and stayed discovery only as to "sales and market share, relevant to plaintiff's Sherman Act and related claims." The court reasoned that "given the presence of both contract and patent claims . . . full discovery of the antitrust claims would significantly slow the discovery process and impede the progress of this case." Id. at 398. This Court's decision in Enzo Life Sciences, Inc. v. Digene Corp., C. A. No. 02-212-JJF, 2003 U.S. Dist. LEXIS 10202 (D. Del. June 10, 2003) (Ex. B hereto) is on point. In Enzo, the Court denied a motion to separate and stay discovery on patent issues and the business tort counterclaims, even though it agreed to bifurcate those issues at trial to prevent jury confusion. The Court stated in pertinent part: [T]he Court is concerned that a stay of discovery on the Business Tort Counterclaims will prevent a fair and efficient resolution to the Counterclaims. Although the Court recognizes that the Counterclaims may be mooted or simplified depending on the outcome of the patent issues, this must be weighed against the importance of judicial efficiency and fairness. After weighing the relevant factors, the Court will deny the motion to stay because the Court finds that the interest in efficiently moving on with the resolution of the Counterclaims outweighs Enzo's concerns. Enzo, 2003 U.S. Dist. LEXIS 10202, at 17-18 (emphasis added).

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The rationale for denying bifurcation here are even more compelling than those in Enzo. In Enzo, the plaintiff patentee sought to bifurcate and stay discovery on defendant Digene's business tort counterclaims so discovery on the main issue in the case -- patent infringement -- could proceed. Here, defendant Great Lakes attempts to stand this case on its head by seeking to bifurcate and stay the main issue in the case -- patent infringement -- so discovery on its contract defense and counterclaim can proceed. The prejudice and inefficiency recognized by this Court in Enzo pales in comparison to the unfairness and inefficiency that would result from the separation and stay of discovery on DuPont's patent infringement claim. V. Discovery On The Patent Infringement And Cont ract Issues Will Involve Overlapping Documents And Witnesses Discovery on the patent infringement and contract issues in this case will inevitably involve some of the same documents and require multiple depositions of some of the same witnesses. As this Court is aware, the 2002 Cross-License Agreement by its express terms merely prohibits the assertion of a patent that would "prevent" Great Lakes' manufacture, use or sale of fire extinguishing compositions containing the compound HFC-227. Thus, a key underlying factual issue must be resolved, namely, whether the assertion of the `727 patent "prevents" Great Lakes from manufacturing, using or selling a fire extinguishing composition containing HFC-227. This factual issue will necessarily involve discovery of a technical nature, including discovery not only of the method(s) of manufacture used by Great Lakes, but also of any and all alternative noninfringing methods of manufacture available to Great Lakes. Indeed, Great Lakes has at least indirectly admitted that such noninfringing

alternatives do exist, taking issue only with "how expensive, inefficient or commercially

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impracticable any alternative production methods may be." (D.I. 46, Exh. 2 at 22). According to Great Lakes, not only is the aforementioned discovery of technical issues necessary, but additional discovery of financial issues relating to costs, efficiency and commercial viability will be required. Discovery of these acknowledged alternative methods of manufacture will therefore likely involve some of the same documents and depositions of some of the same witnesses of both a technical and financial nature that will be involved in discovery for the purpose of establishing infringement of DuPont's `727 patent and the damages to DuPont as a result of that infringement. Therefore, bifurcation of discovery on the patent infringement claim and contract defense and counterclaim will result in significant inefficiencies attributable to an overlap in discovery.

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CONCLUSION Under the Court's Scheduling Order, the parties must complete document production by July 31, 2006 and fact discovery by October 31, 2006. Great Lakes' incessant attempts to delay and thwart DuPont's legitimate efforts to obtain discovery on its patent infringement claim sho uld not be condoned by this Court. Great Lakes' motion should be denied and Great Lakes should be compelled to produce all documents responsive to DuPont's document requests on all issues by the July 31, 2006 deadline. POTTER ANDERSON & CORROON LLP By: OF COUNSEL: Bruce D. DeRenzi John T. Gallagher MORGAN & FINNEGAN, L.L.P. 3 World Financial Center New York, New York 10281-2101 Tel: (212) 415-8700 Dated: July 17, 2006 Attorneys for Plaintiff E. I. du Pont de Nemours & Company
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/s/ David E. Moore Richard L. Horwitz (#2246) David E. Moore (#3983) Hercules Plaza, 6th Floor 1313 North Market Street P.O. Box 951 Wilmington, Delaware 19801 Tel: (302) 984-6000 [email protected] [email protected]

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

CERTIFICATE OF SERVICE I, David E. Moore, hereby certify that on July 17, 2006, the attached document was hand-delivered and was electronically filed with the Clerk of the Court using CM/ECF which will send notification of such filing(s) to the following persons and the document is available for viewing and downloading from CM/ECF: Frederick L. Cottrell, III Alyssa M. Schwartz Richards Layton & Finger One Rodne y Square P. O. Box 551 Wilmington, DE 19899

I hereby certify that on July 17, 2006, I have Electronically Mailed the documents to the following non-registered participants: Richard D. Harris Brad R. Bertoglio Greenberg Traurig LLP 77 W. Wacker Dr., Suite 2500 Chicago, IL 60601 [email protected] [email protected]

By: /s/ David E. Moore Richard L. Horwitz David E. Moore Hercules Plaza, 6th Floor 1313 N. Market Street Wilmington, Delaware 19899-0951 (302) 984-6000 [email protected] [email protected]
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