Free Reply to Response to Motion - District Court of Arizona - Arizona

1 Martin W. Schiffmiller KIRSCHSTEIN, OTTINGER, 2 ISRAEL & SCHIFFMILLER, P.C. 489 Fifth Avenue, 17th Floor 3 New York, New York 10017 Telephone: 212) 697-3750 4 James W. Armstrong (No. 009599) 5 SACKS TIERNEY P.A. 4250 N. Drinkwater Blvd., 4th Floor 6 Scottsdale, Arizona 85251-3693 Telephone: (480) 425-2600 7 [email protected] 8 Attorneys for Defendant Liz Claiborne, Inc. 9 10 11
P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

SACKS TIERNEY

12 Lemelson Medical, Education & Research Foundation, Limited Partnership, 13 Plaintiff, 14 v. 15 CompUSA, Inc., et al., 16 Defendants. 17 18 Liz Claiborne, Inc., 19 20 v. 21 Lemelson Medical, Education & Research Foundation, Limited Partnership, 22 Counterdefendant. 23 24 Counterclaimant,

No. CIV'00-0663-PHX-HRH REPLY IN SUPPORT OF DEFENDANT LIZ CLAIBORNE, INC.'S MOTION FOR AWARD OF ATTORNEYS' FEES

On April 7, 2006, Defendant Liz Claiborne, Inc. ("Claiborne") filed the

25 Memorandum and documentation required under LRCiv 54.2(c)-(d) in support of its 26 request for an award of $39,067.53 in attorneys' fees in this recently dismissed patent 27 infringement action pursuant to 35 U.S.C. § 285. In its April 20, 2006 Response to that 28 request, Plaintiff Lemelson Medical, Education & Research Foundation, Limited
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1 Partnership ("Lemelson") does not dispute that Claiborne is clearly a "prevailing party"
1 2 within the meaning of Section 285, nor does Lemelson contest the reasonableness of any

3 of the fees and related non-taxable expenses itemized in Claiborne's April 7 Memorandum. 4 Instead, Lemelson asserts that Claiborne does not qualify for an award of attorneys'

5 fees under Section 285's "exceptional case" standard. As discussed below, however, given 6 the extraordinary scope and nature of the multiple "mass tort" type lawsuits filed by 7 Lemelson in the District of Arizona, as well as Lemelson's "culpable neglect" and 8 "unreasonable and unjustified" "abuse of the patent system" which led to the invalidation of 9 all seven "machine vision" patents at issue in this matter under the equitable doctrine of
2 10 prosecution laches, it is hard to imagine how any case could be more "exceptional" and

11 worthy of redress under Section 285.
P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

12

Lemelson initially contends that "'exceptional' case status for conduct in the

13 prosecution of the patents" is purportedly "limited" to situations in which "the misconduct 14 rose to the level of inequitable conduct," such as "bad faith." Response at 6. Lemelson 15 further asserts that "[p]rosecution laches is distinct from inequitable conduct," but cites no 16 case law for the proposition that prosecution laches can never be the underlying basis for a 17 finding of exceptionality under Section 285. Moreover, the case law Lemelson does cite 18 clearly indicates that "[f]indings of exceptional case have been based on a variety of 19 factors" other than inequitable conduct, including "other misfeasant behavior," Multiform 20 Desiccants, Inc. v. Medzam, Ltd., 133 F.3d 1473, 1481-82 (Fed. Cir. 1998), "or 'some 21 finding of unfairness ... .'" Rohm & Haas Co. v. Crystal Chem. Co., 736 F.2d 688, 693 22 (Fed. Cir. 1984) (quoting Stevenson v. Sears, Roebuck & Co., 713 F.2d 705, 713 (Fed. Cir. 23 1983)). 24 25 See Interstate Forging Indus. v. Federal Forge, Inc., 1998 U.S. Dist. LEXIS 8760, 26 at *7-*8 (W.D. Mich. June 8, 1999). 27 See Symbol Technologies, Inc. v. Lemelson Med., Educ. & Research Found. Ltd. P'ship, 301 F.Supp. 2d 1147, 1155-56 (D. Nev. 2004), aff'd, 422 F.3d 1378, 1385-86 (Fed. 28 Cir. 2005).
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2 1

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Indeed, even the Revlon case (upon which Lemelson principally relies)

1 acknowledges that attorneys' fees may also be awarded under Section 285 "to avoid a gross 2 injustice." Revlon, Inc. v. Carson Products Co., 803 F.2d 676, 679 (Fed. Cir. 1986); see 3 also FieldTurf Int'l, Inc. v. Sprinturt, Inc., 433 F.3d 1366, 1373 (Fed. Cir. 2006) 4 (recognizing "unfairness," "egregious action," or "some similar exceptional circumstance" 5 as a proper basis for Section 285 relief). 6 Other cases have likewise held that "[a] finding of fraud or inequitable conduct

7 during the prosecution of a patent is not necessary to constitute an 'exceptional' case under 8 [35 U.S.C. § 285], as it may be exceptionable for some other reason ... within the 9 discretion of the trial judge." Orthopedic Equip. Co. v. All Orthopedic Appliances, Inc., 10 707 F.2d 1376, 1384 (Fed. Cir. 1983), cited with approval in Rohm & Haas, 736 F.2d at 11 693. Thus, for example, as explained in Gilbreth Int'l Corp. v. Lionel Leisure, Inc., "it has
P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

12 ... been held by many courts that bad faith conduct or recklessness will justify an award of 13 attorney's fees" under Section 285. 587 F.Supp. 605, 616 (E.D. Pa. 1983) (emphasis added) 14 (citations omitted); see also Machinery Corp. of Am. v. Gullfiber AB, 774 F.2d 467, 473 15 (Fed. Cir. 1985) ("gross negligence," including "reckless misconduct," constitutes 16 satisfactory basis for fee award under 35 U.S.C. § 285). Moreover, as explained by the 17 Ninth Circuit: 18 19 20 21 22 23 Monolith Portland Midwest Co. v. Kaiser Aluminum & Chem. Corp., 407 F.2d 288, 294 24 (9th Cir. 1969), quoted with approval in Gilbreth, 587 F.Supp. at 616-17; see also Eltech 25 Sys. Corp. v. PPG Indus., Inc., 903 F.2d 805, 811 (Fed. Cir. 1990) ("Where, as here, the 26 patentee is manifestly unreasonable in assessing infringement, while continuing to assert 27 infringement in court, an inference is proper of bad faith, whether grounded in or 28 denominated wrongful intent, recklessness, or gross negligence.")
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[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.

1

Here, by focusing on its incorrect and overly narrow characterization of the

2 "exceptional case" standard, Lemelson conveniently ignores the core findings of both the 3 trial and appellate courts in the Symbol litigation that Lemelson had intentionally engaged 4 in an extended course of unreasonable, egregious and inequitable behavior by prosecuting 5 its patent applications in a manner that allowed Lemelson to delay the issuance of those 6 patents by decades and greatly expand the scope of the patents to encompass technology 7 that would render a large segment of American businesses putative infringers. Indeed, as 8 expressly determined by the Federal Circuit, Lemelson's "refiling an application solely 9 containing previously-allowed claims for the business purpose of delaying their issuance 10 can be considered an abuse of the patent system." Symbol, 422 F.3d at 1385. The Federal 11 Circuit also upheld the trial court's finding that Lemelson had engaged in "culpable
P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

12 neglect" during its prosecution of the patent applications at issue, and that Lemelson's 13 conduct had an "adverse effect on businesses that were unable to determine what was 14 patented from what was not patented." Id. at 1386. These were among the considerations 15 that led directly to the trial court's holding, affirmed on appeal, that the involved patents 16 were all unenforceable. 17 The Federal Circuit in Symbol further held that the Nevada district court did not

SACKS TIERNEY

18 abuse its discretion making the factual findings and reaching the legal conclusions that it 19 had -- on the contrary, the trial court had "thoroughly examined the facts and the equities, 20 and it exercised its discretion reasonably." 422 F.3d at 1386. Among the key findings of 21 the Nevada court in its 2004 decision invalidating Lemelson's patents was that the evidence 22 developed during trial "strongly supported" the following combination of factors asserted 23 by the Plaintiffs in support of their prosecution laches claim: 24 25 26 27 28 (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
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1 2 3

(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.

4 301 F.Supp.2d at 1156 (emphasis added). 5 The district court in Symbol also concluded that Mr. Lemelson's extension of his

6 patent monopoly for "nearly forty years" through this systematic abuse of the patent 7 prosecution process was "precisely the type of prejudice to the public which the equitable 8 doctrine of prosecution laches is designed to guard against." Id. at 1157. The Federal 9 Circuit once again agreed, finding that Lemelson's behavior clearly qualified as one of the 10 "egregious cases of misuse of the statutory patent system" to which the doctrine should be 11 applied. 422 F.3d at 1385.
P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

12

In short, the patent infringement actions brought by Lemelson in Arizona against

13 Claiborne and the other 500+ defendant businesses were grounded in their entirety on 14 culpable and inequitable conduct; i.e., the deceptive and manipulative manner in which the 15 Lemelson patents were prosecuted in the Patent and Trademark Office. Under these

SACKS TIERNEY

16 circumstances, it is clear that the test of exceptionality under 35 U.S.C. § 285 has been met. 17 Lemelson nevertheless further argues that it did not commence or prosecute this

18 lawsuit in "bad faith," purportedly because it had no reason to believe that the prosecution 19 laches defense could be applied to the type of continuation practice engaged in by Mr. 20 Lemelson following the 1952 enactment of Sections 120 and 121 of the patent statutes. As 21 explained by the district court in Symbol, however, "[t]he defense of prosecution laches was 22 first recognized in the patent context nearly 150 years ago in Kendall v. Winsor, 62 U.S. 23 322 ... (1858)," which "held that a person 'may forfeit his rights as an inventor by a willful 24 or negligent postponement of his claims, or by an attempt to withhold the benefits of his 25 improvement from the public until a similar or the same improvement should have been 26 made and introduced to others.'" Symbol, 301 F.Supp. 2d at 1154 (emphasis added). 27 Moreover, after similarly discussing the long history of prosecution laches in its first

28 Symbol opinion, the Federal Circuit had no trouble rejecting all three reasons proffered by
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1 Lemelson for the doctrine's unavailability in this case. See Symbol Technologies, Inc. v. 2 Lemelson Med., Educ. & Research Found., Ltd. P'ship, 277 F.3d 1361 (Fed. Cir. 2002). 3 Specifically, the court first found "no support" for Lemelson's argument that prosecution 4 laches had been limited to claims arising out of interference proceedings. Id. at 1365. 5 Second, the court found "nothing" in the legislative history of the 1952 Patent Act to 6 suggest that Congress did not intend to carry forward the defense of prosecution laches 7 after its codification of the previous common law of continuation practice. Id. at 1366. 8 Instead, the Federal Circuit reasoned that, "[t]o the contrary, a careful reading of the history 9 and commentary on the 1952 Act shows an intent to maintain the defense." Lastly, the 10 Symbol court flatly rejected Lemelson's contention that it was bound by the same two 11 unpublished, non-precedential Federal Circuit decisions that Lemelson again relies upon
P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

12 here in its instant Response. 277 F.3d at 1366-68. 13 In arguing that it did not institute or prosecute the present suit in "bath faith,"

14 moreover, Lemelson is focusing narrowly on its subjective belief that the infringement 15 claims on its issued patents could be sustained on the merits. Lemelson thus disregards the 16 thrust of the trial and appellate court findings in Symbol that all of the Lemelson patents at 17 issue were prosecuted in a manner rife with bad faith and with the intention of securing 18 excessively broad statutory monopolies in order to reap unwarranted royalty payments 19 from companies who would have difficulty practicing conventional technologies without 20 becoming ensnared in Lemelson's cunningly designed web of patents. The key finding of 21 the Symbol courts was that Lemelson was never entitled to the patents that issued, and those 22 patents would not have issued in the forms and at the times they did had Lemelson dealt 23 fairly and equitably with the Patent Office and with the public over the course of several 24 decades. Indeed, the Federal Circuit emphasized that "the doctrine of prosecution laches is 25 an equitable defense," 422 F.3d at 1384, and Lemelson's conduct ran afoul of equity. That 26 Lemelson claims to have had a "good faith" belief at the time it sued on those patents that it 27 could convince this Court to sustain its infringement claims on the merits and/or that it 28 could pressure the defendants into settling and taking licenses rather than risking huge
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1 liability does not detract from the exceptional nature of this case. 2 Furthermore, as Lemelson notes in its Response, courts have routinely found patent

3 cases exceptional for purposes of awarding fees when the patent sued upon was secured 4 through "inequitable conduct," e.g., where the patent applicant willfully failed to disclose 5 material information to the Patent Office which, had it been disclosed, might have 6 precluded the issuance of the patent. It is submitted that, based on this well-accepted 7 principle, the present case is certainly exceptional. Had Lemelson not engaged in the 8 egregious misconduct described by the Symbol courts during the prosecution of the patents 9 it sued upon here, those patents either would never have issued, would have issued and 10 expired before the defendants committed the acts alleged to have infringed the patents, or 11 would have issued with claims that would not have sustained any infringement charges
P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

12 against the defendants.

Lemelson's patents were, therefore, as much the product of

13 "inequitable conduct" as any patents that are issued after material prior art is concealed by 14 the applicants from the Patent Office. Finding that this case is "exceptional" within the 15 meaning of 35 U.S.C. § 285 is clearly appropriate under these circumstances. 16 For all of the reasons discussed above and in its April 7 Memorandum, Claiborne

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17 therefore respectfully requests that it be awarded all of the attorneys' fees it has been forced 18 to incur as a result of Lemelson's culpable and unfair manipulation of the patent system, 19 upon which all of its dismissed claims of infringement were based. 20 21 22 23 24 25 26 27 28
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RESPECTFULLY SUBMITTED this 8th day of May, 2006.

SACKS TIERNEY P.A. By: s/ James W. Armstrong Attorneys for Defendant Liz Claiborne, Inc.

1 2

CERTIFICATE OF SERVICE

I hereby certify that on May 8th, 2006, a complete, duplicate copy of this document 3 was forwarded directly to Judge Holland by Priority Mail, at the following address: 4 Judge H. Russell Holland 5 United States District Court 222 West 7th Avenue, Unit 54 6 Anchorage, Alaska 99513 7 8 I further certify that on May 8th, 2006, I electronically transmitted the attached 9 document to the Clerk's Office using the CM/ECF System for filing and transmittal of a 10 Notice of Electronic Filing to the following CMECF registrants: 11 Louis J. Hoffman, Esq. Peter C. Warner, Esq. 12 Victoria Gruver Curtin, Esq. 13 Steven G. Lisa, Esq. 14614 North Kierland Blvd., Suite 300 14 Scottsdale, Arizona 85254 15 Email: [email protected] [email protected] 16 [email protected] [email protected] 17 Attorneys for Plaintiff 18 Jennifer P. Nore, Esq. 19 Michael R. Ross, Esq. 20 MEYER HENDRICKS & BIVENS, P.A. P. O. Box 2199 21 Phoenix, Arizona 85001 22 Email: [email protected] [email protected] 23 Attorneys for Defendant American Retail Group, Inc. 24 Richard A. Halloran, Esq. 25 Lewis and Roca LLP 40 North Central Avenue 26 Phoenix, AZ 85004-4429 27 Email: [email protected] Attorneys for Defendant Avnet 28
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s/ James W. Armstrong

SACKS TIERNEY

P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

1 Michael A. Beale, Esq. John A. Micheaels, Esq. 2 Beale & Micheaels, P.C. 3 1440 East Missouri Avenue, Suite C-150 Phoenix, Arizona 85014 4 Email: [email protected] [email protected] 5 Attorneys or Defendants Ann Taylor, Inc. 6 Cheryl Lee Johnson, Esq. 7 Squire Sanders & Dempsey, L.L.P. 8 801 South Figueroa Street, 14th Floor Los Angeles, California 90017-5554 9 Email: [email protected] 10 Attorneys for Defendant Bax Global, Inc. 11 Donald A. Wall, Esq. Mark A. Nadeau, Esq. 12 Squire Sanders & Dempsey, LLP 13 Two Renaissance Square 40 North Central Avenue, Suite 2700 14 Phoenix, Arizona 85004-444 1 15 Email: [email protected] [email protected] Attorneys for Defendants Arrow Electronics and BAX Global, Inc. 16 Douglas W. Seitz, Esq. 17 Timothy J. Casey, Esq. 18 Jennifer H. Dioguardi, Esq. Laura Jean Zeman, Esq. 19 Michael K. Kelly, Esq. 20 Bradley W. Petersen, Esq. Snell & Wilmer L.L.P. 21 One Arizona Center 22 400 East Van Buren Phoenix, AZ 85004-2202 23 Email: [email protected] [email protected] 24 [email protected] [email protected] 25 [email protected] 26 [email protected] 27 Attorneys for Defendants Best Buy, Ingram Industries, Micro Warehouse, Inc., Nash-Finch, and Target 28
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P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

1 Paul E. Burns, Esq. 2 Steptoe & Johnson, LLP 3 Collier Center 201 East Washington, Suite 1600 4 Phoenix, AZ 85004-2382 5 Email: [email protected] Attorneys for Defendant Consolidated Stores 6 Robert R. Brunelli, Esq. 7 Sheridan Ross P.C. 8 1560 Broadway, Suite 1200 Denver, Colorado 80202 9 Email: [email protected] 10 Attorneys for Defendant Corporate Express, Inc. 11 Barry R. Sanders, Esq. Michael S. Rubin, Esq. 12 Mariscal, Weeks, McIntyre & Friedlander 13 2901 North Central Avenue, Suite 200 Phoenix, Arizona 85012 14 Email: barry@sanders ,mwmf.com michael@rubin mwmf.com 15 Attorneys for Defendants Corporate Express, Inc., 16 7-Eleven, Inc., Smart & Final, Inc. 17 Jonathan M. James, Esq. 18 Perkins Coie Brown & Bain PA P.O. Box 400 19 Phoenix, AZ 85001-0400 20 Email: [email protected] Attorneys for Defendant Genuine Parts Company 21 22 Brett L. Dunkelman, Esq. Osborn Maledon, PA 23 2929 North Central Avenue, Suite 2100 Phoenix, AZ 85012-2794 24 Email: [email protected] 25 Attorneys for Defendants CompUSA, Rexel, Systemax, The Gap, Neiman Marcus Group, and Zale 26 27 28
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P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

1 Peter J. Brann, Esq. Brann & Isaacson, L.L.P. 2 P. O. Box 3070 3 Lewiston, Maine 04243-3070 Email: [email protected] 4 Attorneys for Defendants L.L. Bean, Inc. and Talbots, Inc. Ray K. Harris, Esq. 6 Fennemore Craig P.C. 3003 North Central Avenue, Suite 2600 7 Phoenix, AZ 85012-2913 8 Email: [email protected] Attorneys for Defendants Haworth, Inc., L.L. Bean, Inc., and Talbots, Inc. 9 10 Benjamin C. Thomas, Esq. Susan Elizabeth Irwin, Esq. 11 Thomas & Elardo, P.C. 2700 North Central Avenue, Suite 1500 12 Phoenix, Arizona 85004 13 Email: [email protected] [email protected] 14 Attorneys for Defendant Walmart 15 16 17 I further certify that on May 8th, 2006, I served the attached document by U.S. mail, postage prepaid, on the following, who are not registered participants of the CM/ECF 19 System: 20 18 21 Andrew Abraham 22 Burch & Cracchiolo PA PO Box 16882 23 Phoenix, AZ 85011-6882 24 Hugh A Abrams 25 Sidley Austin Brown & Wood LLP Bank 1 Plaza 26 10 S Dearborn St 27 Chicago, IL 60603 28
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5

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P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

s/ James W. Armstrong

1 Robert E B Allen Mariscal Weeks McIntyre & Friedlander PA 2 2901 N Central Ave 3 Ste 200 Phoenix, AZ 85012-2705 4 5 Larry C Boyd Ingram Micro Inc 6 1600 E St Andrew Pl Santa Ana, CA 92705 7 8 J Bennett Clark Senniger Powers Leavitt & RoeClaiborne 9 1 Metropolitan Sq 10 16th Floor St Louis, MO 63102 11 Kevin B Collins 12 Venable Baetjer Howard & Civiletti LLP 13 1201 New York Ave NW Ste 1000 14 Washington, DC 20005-3917 15 Jennifer E Cook 16 Senniger Powers Leavitt & RoeClaiborne 1 Metropolitan Sq 17 16th Floor 18 St Louis, MO 63102 19 William D Coston 20 Venable Baetjer Howard & Civiletti LLP 1201 New York Ave NW 21 Ste 1000 22 Washington, DC 20005-3917 23 John H Cotton John H Cotton & Associates Ltd 24 2300 W Sahara 25 Ste 420 Las Vegas, NV 89102 26 27 28
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P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

1 Rita Coyle DeMeules Robins Kaplan Miller & Ciresi LLP 2 2800 LaSalle Plaza 3 800 LaSalle Ave Minneapolis, MN 55402-2015 4 5 David W Denenberg Gibbons Claiborne Deo Dolan Griffinger & Vecchione 6 1 Pennsylvania Plaza 37th Fl 7 New York, NY 10119 8 Martin I Eisenstein 9 Brann & Isaacson LLP 10 PO Box 3070 Lewiston, ME 04243-3070 11 Albert E Fey 12 Fish & Neave 13 1251 Ave of the Americas New York, NY 10020 14 15 Mark A Flagel Latham & Watkins 16 633 W 5th St Ste 4000 17 Los Angeles, CA 90071-2007 18 Lee A Freeman 19 Freeman Freeman & Salzman PC 20 401 N Michigan Ave Ste 3200 21 Chicago, IL 60611 22 John N Gallo 23 Sidley Austin Brown & Wood LLP Bank 1 Plaza 24 10 S Dearborn St 25 Chicago, IL 60603 26 27 28
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P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

1 Scott H Gingold Latham & Watkins 2 5800 Sears Tower 3 233 S Wacker Dr Chicago, IL 60606 4 5 Jennifer P Goetsch Marshall O'Toole Gerstein Murray & Borun 6 233 S Wacker Dr Ste 6300 7 Chicago, IL 60606 8 Thomas O Gorman 9 Porter Wright Morris & Arthur LLP 10 1919 Pennsylvania Ave NW Ste 500 11 Washington, DC 20006
P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

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George Gottlieb 13 Gottlieb Rackman & Reisman PC 270 Madison Ave 14 8th Floor 15 New York, NY 10016 16 Lee F Grossman Marshall O'Toole Gerstein Murray & Borun 17 233 S Wacker Dr 18 Ste 6300 Chicago, IL 60606 19 20 Herbert J Hammond Thompson & Knight LLP 21 1700 Pacific Ave 22 Ste 3300 Dallas, TX 75201 23 John E Hedstrom 24 Porter Wright Morris & Arthur LLP 25 1919 Pennsylvania Ave NW Ste 500 26 Washington, DC 20006 27 28
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1 Jesse J Jenner Fish & Neave 2 1251 Ave of the Americas 3 New York, NY 10020 4 Darin M Klemchuk 5 Cash Klemchuk Powers Taylor LLP Campbell Centre II 6 8150 N Central Expressway Ste 1575 7 Dallas, TX 75206 8 Emily S Lau 9 Fenwick & West LLP 10 2 Palo Alto Sq Ste 700 11 Palo Alto, CA 94306
P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

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James T Malysiak 13 Freeman Freeman & Salzman PC 401 N Michigan Ave 14 Ste 3200 15 Chicago, IL 60611 16 Lisa Meyerhoff Jenkens & Gilchrist PC 17 1445 Ross Ave 18 Ste 3200 Dallas, TX 75202 19 20 David A Nelson Latham & Watkins 21 5800 Sears Tower 22 233 S Wacker Dr Chicago, IL 60606 23 Bart James Patterson 24 University & Community College 25 5550 W Flamingo Rd Ste C-1 26 Las Vegas, NV 89103-0137 27 28
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1 David Anthony Plumley Christie Parker & Hale LLP 2 350 W Colorado Blvd 3 Ste 500 Pasadena, CA 91105 4 5 Susan E Powley Jenkens & Gilchrist PC 6 1445 Ross Ave Ste 3200 7 Dallas, TX 75202 8 Terryl K Qualey 9 Merchant & Gould 10 3200 IDS Ctr 80 S 8th St 11 Minneapolis, MN 55402-2215
P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

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Charles Quinn 13 Fish & Neave 1251 Ave of the Americas 14 New York, NY 10020 15 James Samuel Rigberg 16 Mariscal Weeks McIntyre & Friedlander PA 2901 N Central Ave 17 Ste 200 18 Phoenix, AZ 85012-2705 19 Clyde A Shuman 20 Cobrin & Gittes 750 Lexington Ave 21 Ste. 21 22 New York, NY 10022 23 George M Sirilla Pillsbury Winthrop LLP 24 1600 Tysons Blvd 25 McLean, VA 22102 26 27 28
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1 Bruce S Sostek Thompson & Knight LLP 2 1700 Pacific Ave 3 Ste 3300 Dallas, TX 75201 4 5 Stefan V Stein Holland & Knight LLP 6 100 N Tampa St Ste 4100 7 Tampa, FL 33602-3644 8 Jay Todd Stewart 9 Perkins Coie Brown & Bain PA 10 PO Box 400 Phoenix, AZ 85001-0400 11 Mark Michael Supko 12 Kenyon & Kenyon 13 1500 K St NW Ste 700 14 Washington, DC 20005-1257 15 Raymond L Sweigart 16 Pillsbury Winthrop LLP 1600 Tysons Blvd 17 McLean, VA 22102 18 William M Wesley 19 McAndrews Held & Malloy Ltd 20 500 W Madison St Ste 3400 21 Chicago, IL 60661 22 Christopher C Winslade 23 McAndrews Held & Malloy Ltd 500 W Madison St 24 Ste 3400 25 Chicago, IL 60661 Darryl M Woo 26 Fenwick & West LLP 27 275 Battery St Ste 1600 28 San Francisco, CA 94111-3305
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P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

1 Donald L Zachary 2 Bass Berry & Sims PLC 3 First American Ctr 315 Deaderick St 4 Ste 2700 5 Nashville, TN 37238-0002 6 Elizabeth L Zepeda 600 CitaClaiborne Dr 7 Commerce, CA 90040 8 Norman H Zivin 9 Cooper & Dunham LLP 10 1185 Ave of the Americas New York, NY 10036 11 Thomas Zych 12 Thompson Hine & Flory LLP 13 3900 Key Ctr 127 Public Sq 14 Cleveland, OH 44114-1216 15 16 17 18
610697.01

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P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

s/ James W. Armstrong

19 20 21 22 23 24 25 26 27 28
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