Google Incorporated, et al v. Leo Stoller

Filing 11

Original record on appeal filed. Contents of record : 1 vol. electronic pleadings; 4 vol. paper loose pleadings; 4 vol. paper transcripts; [6177560-1] [09-3569]

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APPEAL, COLE, REOPEN, TERMED United States District Court Northern District of Illinois - CM/ECF LIVE, Ver 3.2.3 (Chicago) CIVIL DOCKET FOR CASE #: 1:07-cv-00385 Internal Use Only Google Inc v. Central Mfg. Inc. et al Assigned to: Honorable Virginia M. Kendall Case in other court: 07-01612 07-01651 09-03569 Cause: 18:1961 Racketeering (RICO) Act Date Filed 02/12/2007 # 22 Page Docket Text 2 DECLARATION of Michael T. Zeller regarding response in opposition to motion 21 , response in opposition to motion, 20 by Google Inc (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9# 10 Exhibit 10# 11 Exhibit 11# 12 Exhibit 12# 13 Exhibit 13# 14 Exhibit 14# 15 Exhibit 15# 16 Exhibit 16# 17 Exhibit 17# 18 Exhibit 18# 19 Exhibit 19# 20 Exhibit 20# 21 Exhibit 21# 22 Exhibit 22# 23 Exhibit 23# 24 Exhibit 24# 25 Exhibit 25# 26 Exhibit 26# 27 Exhibit 27# 28 Exhibit 28# 29 Exhibit 29# 30 Exhibit 30)(Barrett, William) (Entered: 02/12/2007) 362 MOTION by Plaintiff Google Inc for permanent injunction (Stipulated), MOTION by Plaintiff Google Inc for judgment (Final) (Barrett, William) (Entered: 02/12/2007) 372 SUPPLEMENT by Google Inc to declaration,, 22 Supplemental Declaration of Michael T. Zeller (Barrett, William) (Entered: 02/13/2007) 382 MEMORANDUM by Google Inc in support of motion for permanent injunction, motion for judgment 23 Google Inc.'s Separate Memorandum in Support of Joint Motion for Entry of Stipulated Permanent Injunction and Final Judgment (Barrett, William) (Entered: 02/13/2007) Date Filed: 01/19/2007 Date Terminated: 10/16/2009 Jury Demand: None Nature of Suit: 470 Racketeer/Corrupt Organization Jurisdiction: Federal Question 02/12/2007 23 02/13/2007 25 02/13/2007 27 Case 1:07-cv-385 Document 22 Filed 02/12/2007 Page 1 of 6 Case 1:07-cv-385 Document 22 Filed 02/12/2007 Page 2 of 6 Case 1:07-cv-385 Document 22 Filed 02/12/2007 Page 3 of 6 Case 1:07-cv-385 Document 22 Filed 02/12/2007 Page 4 of 6 Case 1:07-cv-385 Document 22 Filed 02/12/2007 Page 5 of 6 Case 1:07-cv-385 Document 22 Filed 02/12/2007 Page 6 of 6 CERTIFICATE OF SERVICE I, William J. Barrett, certify that I caused to be served on the parties on the following Service List, manner of service and date as indicated below, a copy of the foregoing DECLARATION OF MICHAEL T. ZELLER (WITH EXHIBITS 1-30). /s/ William J. Barrett William J. Barrett SERVICE LIST Mr. Leo Stoller 7115 W. North Ave., #272 Oak Park, IL 6030 Via email to ldms4@hotmail.com (Served via email transmission and overnight delivery on February 12, 2007) Richard M. Fogel Janice Alwin Shaw Gussis Fishman Glantz Wolfson & Towbin LLC 321 N. Clark St., Suite 800 Chicago, IL 60610 (Served via messenger delivery on February 13, 2007) 401894-1 Case 1:07-cv-385 Document 22-2 Filed 02/12/2007 Page 1 of 3 Case 1:07-cv-385 Document 22-2 Filed 02/12/2007 Page 2 of 3 Case 1:07-cv-385 Document 22-2 Filed 02/12/2007 Page 3 of 3 Case 1:07-cv-385 Document 22-3 Filed 02/12/2007 Page 1 of 31 Case 1:07-cv-385 Document 22-3 Filed 02/12/2007 Page 2 of 31 Case 1:07-cv-385 Document 22-3 Filed 02/12/2007 Page 3 of 31 Case 1:07-cv-385 Document 22-3 Filed 02/12/2007 Page 4 of 31 Case 1:07-cv-385 Document 22-3 Filed 02/12/2007 Page 5 of 31 Case 1:07-cv-385 Document 22-3 Filed 02/12/2007 Page 6 of 31 Case 1:07-cv-385 Document 22-3 Filed 02/12/2007 Page 7 of 31 Case 1:07-cv-385 Document 22-3 Filed 02/12/2007 Page 8 of 31 Case 1:07-cv-385 Document 22-3 Filed 02/12/2007 Page 9 of 31 Case 1:07-cv-385 Document 22-3 Filed 02/12/2007 Page 10 of 31 Case 1:07-cv-385 Document 22-3 Filed 02/12/2007 Page 11 of 31 Case 1:07-cv-385 Document 22-3 Filed 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of 17 Case 1:07-cv-385 Document 22-30 Filed 02/12/2007 Page 8 of 17 Case 1:07-cv-385 Document 22-30 Filed 02/12/2007 Page 9 of 17 Case 1:07-cv-385 Document 22-30 Filed 02/12/2007 Page 10 of 17 Case 1:07-cv-385 Document 22-30 Filed 02/12/2007 Page 11 of 17 Case 1:07-cv-385 Document 22-30 Filed 02/12/2007 Page 12 of 17 Case 1:07-cv-385 Document 22-30 Filed 02/12/2007 Page 13 of 17 Case 1:07-cv-385 Document 22-30 Filed 02/12/2007 Page 14 of 17 Case 1:07-cv-385 Document 22-30 Filed 02/12/2007 Page 15 of 17 Case 1:07-cv-385 Document 22-30 Filed 02/12/2007 Page 16 of 17 Case 1:07-cv-385 Document 22-30 Filed 02/12/2007 Page 17 of 17 Case 1:07-cv-385 Document 22-31 Filed 02/12/2007 Page 1 of 8 Case 1:07-cv-385 Document 22-31 Filed 02/12/2007 Page 2 of 8 Case 1:07-cv-385 Document 22-31 Filed 02/12/2007 Page 3 of 8 Case 1:07-cv-385 Document 22-31 Filed 02/12/2007 Page 4 of 8 Case 1:07-cv-385 Document 22-31 Filed 02/12/2007 Page 5 of 8 Case 1:07-cv-385 Document 22-31 Filed 02/12/2007 Page 6 of 8 Case 1:07-cv-385 Document 22-31 Filed 02/12/2007 Page 7 of 8 Case 1:07-cv-385 Document 22-31 Filed 02/12/2007 Page 8 of 8 Case 1:07-cv-385 Document 23 Filed 02/12/2007 Page 1 of 10 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION GOOGLE INC., ) ) Plaint iff, ) ) vs. ) ) CENTRAL MFG. INC. a/k/a CENTRAL ) MFG. CO., a/k/a CENTRAL MFG. CO. ) (INC.), a/k/a CENTRAL ) MANUFACTURING COMPANY, INC. ) and a/k/a CENTRAL MFG. CO. OF ) ILLINOIS; and STEALTH INDUSTRIES, ) INC. a/k/a RENTAMARK and a/k/a ) RENTAMARK.COM, ) ) Defendants. ) Civil Action No. 07 CV 385 Hon. Virginia M. Kendall Hearing Date: February 20, 2007 Hearing Time: 9 a.m. JOINT MOTION FOR ENTRY OF STIPULATED PERMANENT INJUNCTION AND FINAL JUDGMENT Plaint iff Google Inc. ("Google"), by its attorneys, and defendants Central Mfg. Inc. and Stealth Industries, by and through Richard M. Fogel, not individually but as Chapter 7 Trustee (the "Trustee") for the bankruptcy estate of Leo Stoller, respectfully request that the Court enter the Stipulated Permanent Injunction and Final Judgment (the "Injunction and Final Judgment") agreed to by the parties in complete and final resolution of this action and approved by the United States Bankruptcy Court for the Northern District of Illinois. Background of Settlement Defendants to this action are two corporate entities, Central Mfg. Inc. ("Central Mfg.") and Stealth Industries, Inc. ("Stealth"). "Defendants"). (Central Mfg. and Stealth are, collectively, Subsequent ly, on August 31, 2006, the Defendants' former principal, Leo Stoller ("Debtor"), filed Chapter 13 bankruptcy proceedings on December 20, 2005.1 Bankruptcy Court converted Debtor's bankruptcy proceedings to ones under Chapter 7 for, among other reasons, Debtor's failure to maintain any books or records (including for the 1 Declarat ion of Michael T. Zeller, dated February 12, 2007 and filed concurrently herewith ("Zeller Dec."), Exh. 3. 20056/2046167.4 Case 1:07-cv-385 Document 23 Filed 02/12/2007 Page 2 of 10 Defendants and other entities in which he claimed an interest) and his failures to disclose assets.2 By Order dated October 5, 2006, the Bankruptcy Court duly authorized the Trustee to act on behalf of the Defendants.3 Moreover, since the time of the Chapter 7 conversion, the Bankruptcy Court specifically has rejected, twice, Debtor's requests to represent Defendants in legal proceedings.4 As set forth in its Complaint and discussed in Google's separate Memorandum in Support of the Joint Motion, this action stems from these corporate Defendants' pattern of fraudulent acts that targeted Google for extortion and, in the process, cost Google hundreds of thousands of dollars in damage -- damage that continues to this day. Google and the Trustee negotiated a Settlement Agreement that, if implemented as described below, resolves Google's claims against the Defendants (the "Settlement Agreement").5 The Bankruptcy Court approved the parties' Settlement Agreement by Order dated December 5, 2006 (the "Settlement Order").6 The Bankruptcy Court thus authorized the Trustee to enter into the Settlement Agreement, which includes the Injunction and Final Judgment, and found that the Settlement Agreement was in the best interests of the estate.7 Moreover, in so ruling, the Bankruptcy Court also rejected Debtor's belated objections to the Settlement Agreement.8 The Settlement Agreement is contingent upon, among other things, the discontinuance of various proceedings that Defendant Central Mfg. had brought against Google, including through entry of the Injunct ion and Final Judgment in this action.9 If the Injunction and Final Judgment is entered so as to ensure a complete termination of the proceedings that Defendant Central Mfg. brought against Google and to ensure that Google is protected against further repetition of 2 3 Zeller Dec., Exh. 2. Zeller Dec., Exh. 1. 4 Zeller Dec., Exhs. 4, 5, 16, 17. 5 A copy of the Settlement Agreement is Exhibit 7 to the Zeller Dec. 6 Zeller Dec., Exh. 6. 7 Zeller Dec., Exh. 7. 8 Zeller Dec., Exhs. 6, 18. 9 The Stipulated Permanent Injunct ion and Final Judgment is being lodged concurrently herewith. A copy of the Stipulated Permanent Injunction and Final Judgment is also Exhibit A to the Settlement Agreement. The agreed-upon discontinuances of the proceedings before the Trademark Office are attached as Exhibits B - D of the Settlement Agreement. 20056/2046167.4 2 Case 1:07-cv-385 Document 23 Filed 02/12/2007 Page 3 of 10 Defendants' misconduct, Google has agreed to release its monetary claims against the Defendants and the Debtor's bankruptcy estate.10 Grounds For This Motion "There is no question that fostering settlement is an important Article III function" of the federal courts. United States v. Glens Falls Newspapers, Inc., 160 F.3d 853, 856 (2d Cir. 1998). See also Uhl v. Thoroughbred Technology and Telecommunications, Inc., 309 F.3d 978, 986 (7th Cir. 2002) (applying principle that "[f]ederal courts favor settlement" to limit scope of review of class action settlements); Goodman v. Epstein, 582 F.2d 388, 403 (7th Cir. 1978) (settlement of claims "is recognized as essential to the continued functioning of our judicial system."); Clarion Corp. v. American Home Products Corp., 494 F.2d 860, 861 (7th Cir. 1974) ("Compromises of disputed claims are favored by the courts."); Porsche Cars North America, Inc. v. Manny's Porshop, Inc., 972 F. Supp. 1128, 1132 (N.D. Ill. 1997) ("there is a strong public policy in favor of voluntary settlements."); B.H. v. Ryder, 856 F.Supp. 1285, 1290 (N.D. Ill. 1994) ("There is a strong public policy in favor of settlements, and the efforts of judges to promote settlement are among the most important functions they perform."); United States v. Bliss, 133 F.R.D. 559, 567 (E.D. Mo. 1990) ("The courts have long recognized that public policy favors settlements as a cost-efficient and convenient means of resolving disputes and conserving judicial resources."). This policy favoring settlement extends to the entry of consent decrees and injunctions in furtherance of the parties' voluntary agreements. As the Supreme Court has stated, District Courts may properly enter a consent decree where it (1) "spring[s] from and serve[s] to resolve a dispute within the courts' subject-matter jurisdiction"; (2) "come[s] within the general scope of the case made by the pleadings"; and (3) furthers the objectives upon which the complaint was based. Local No. 93, Int'l Ass'n of Firefighters v. Cleveland, 478 U.S. 501, 525-26, 106 S. Ct. 3063, 3077 (1986). "However, in addition to the law which forms the basis of the claim, the parties' consent animates the legal force of a consent decree. Therefore, a federal court is not necessarily barred from entering a consent decree merely because the decree provides broader relief than the court could have awarded after a trial." Id. As one Court of Appeals has stated, "the parties enjoy wide latitude in terms of what they may agree to by consent decree and have sanctioned by a court." Conservation Law Foundation of New England, Inc. v. Franklin, 989 10 Zeller Dec., Exh. 7 at pp. 6-7 (Article 3). 3 20056/2046167.4 Case 1:07-cv-385 Document 23 Filed 02/12/2007 Page 4 of 10 F.2d 54, 59 (1st Cir. 1993); see also Bliss, 133 F.R.D. at 567 ("Unless a consent decree is unfair, inadequate, or unreasonable, it ought to be approved."). Both the Trustee and Google respectfully submit that the Injunction and Final Judgment amply meets these standards. As noted, an essential condition for the effectiveness of the Settlement Agreement, including Google's releases of it s monetary claims against Defendants, is entry of the Injunct ion and Final Judgment. Unless and until that condition is satisfied, Google's claims against these corporate Defendants will remain. If not resolved, and regardless of where they would have to be lit igated, these claims will constitute a burden to the bankruptcy estate in the hands of the Trustee; will inevitably diminish the funds available to other creditors for disbursement by the Trustee; and will require the expenditure of scarce judicial resources, either in this Court, the Bankruptcy Court or both. These are, of course, among the reasons the Bankruptcy Court approved the Trustee's settlement with Google as being in the best interests of the estate. Entry of the Injunction and Final Judgment will result in a resolution, and complete release, of Google's monetary claims against Defendants in accordance with the Settlement Agreement's terms while also providing Google with the injunctive relief that it needs to bring a full resolution to the proceedings that Defendants brought against Google and to avoid further, protracted litigation that will burden Google and the judicial system. Thus, the Injunction and Final Judgment comes within the general scope of the case as reflected by the pleadings, and its entry would further the objectives upon which the complaint was based. Because the Complaint alleges federal claims within the Court's federal question jurisdiction and a pendent state law claim within the Court's supplemental jurisdiction, the Injunction and Final Judgment springs from and serves to resolve a dispute within its subject matter jurisdiction. Finally, the reso lut ion here is fair and reasonable, as both Google and the Trustee jointly submit and as the Bankruptcy Court found. Google and the Trustee respectfully request that the Court enter the Injunction and Final Judgment. Entry Of The Injunction And Final Judgment Need Not, And Should Not, Await Adjudication of Debtor's Alleged Appeal Of The Settlement Order Alt hough Debtor has purported to appeal the Bankruptcy Court's Settlement Order, Google and the Trustee respectfully submit that neither that appeal, nor any other appeal by 20056/2046167.4 4 Case 1:07-cv-385 Document 23 Filed 02/12/2007 Page 5 of 10 Debtor, warrants delay o f the entry of the Injunction and Final Judgment here. Both the law and practical considerations support this. First, as shown in the Oppositions to Debtor's pending Motions submitted by Google and the Trustee, Debtor here is not the lawful representative of Defendants. To the contrary, the Bankruptcy Court vested the Trustee with authority over the Defendants and has specifically rejected Debtor's requests that he be allowed to act on behalf of these Defendants in legal proceedings. He also lacks standing to intervene or otherwise participate in these proceedings as an individual because he has not shown, and cannot show, a direct, legally protectible interest in this case. Under these circumstances, Debtor's separate appeal of the Settlement Order should not be afforded consideration here. Second, even if he had standing in this litigation (which he does not), Debtor did not obtain an order staying the Bankruptcy Court's Settlement Order pending appeal or post a supersedeas bond.11 The Trustee and Google therefore are entitled to proceed to implement the Settlement Agreement, including the Injunction and Final Judgment that is part of it, pursuant to the Bankruptcy Court's Settlement Order. "[T]he filing of a petition to review an order of a bankruptcy judge . . . does not stay the effect or operation of the order unless a supersedeas bond is filed or the order itself provides for a stay." Country Fairways, Inc. v. Mottaz, 539 F.2d 637, 641 (7th Cir. 1976).12 This rule equally applies to Bankruptcy Court Orders approving settlement agreements. "Absent a stay of the bankruptcy court's order [approving settlement], the parties [are] free to effectuate the settlement." In re Fraidin, 124 Fed. Appx. 212, 213 (4th Cir. 2005). 11 Indeed, a bankruptcy Trustee "is expected and encouraged to proceed with Zeller Dec., Exh. 6. In fact, Debtor has not obtained a stay of any Order entered by the Bankruptcy Court. Id., Exhs. 6, 17. 12 In particular, the Settlement Agreement, if implemented by entry of the Injunction and Final Judgment, will result not only in a release by Google running to Defendants, but also terminate proceedings instituted by Defendant Central Mfg. and resolve any future claims that Defendants might assert. E.g., Zeller Dec., Exh. 7 at � 2.5. Because "the settlement of a cause of action held by the estate is plainly the equivalent of a sale of that claim" under 11 U.S.C. � 363(b) (In re Telesphere Communication, Inc., 179 B.R. 554, 552 n. 7 (N.D. Ill. 1994), a stay pending appeal must be obtained to challenge the transaction on appeal. 11 U.S.C. � 363(m); In re Sax, 796 F.2d 994, 997-98 (7th Cir. 1986) ("� 363(m) and the cases interpreting it have clearly held that a stay [of an order pending appeal] is necessary to challenge a bankruptcy sale under � 363(b)."); see also In re Commercial Loan Corp., 316 B.R. 690, 697 n.5 (Bkrtcy. N.D.Ill. 2004) (settlement of claim is equivalent to sale for purposes of 11 U.S.C. � 363(b)); In re Bridge Information Systems, Inc., 293 B.R. 479, 486 (Bkrtcy. E.D. Mo. 2003 (same). 20056/2046167.4 5 Case 1:07-cv-385 Document 23 Filed 02/12/2007 Page 6 of 10 administration of the estate after the entry and during the appeal of an order of adjudicat ion" where no stay pending appeal has been obtained. In re Christian & Porter Aluminum Co., 584 F.2d 326, 334 (9th Cir. 1978). See also In re Monson, 87 B.R. 577, 587 (Bankr. W.D. Mo. 1988) (same). Independent ly, the Bankruptcy Court's Settlement Order lifted the automatic stay under 11 U.S.C. � 362(d). As a result, as to Defendants here, "[t]o the extent the stay is terminated by the [bankruptcy] court as to a particular creditor, that creditor may proceed to collect on his or her debt. Even if an appeal is filed, the creditor may proceed. . . . The only way the debtor can avoid this situation is by obtaining a stay pending appeal. F.R.B.P. 8005." In re Strawberry Square Associates, 152 B.R. 699, 701 (E.D.N.Y. 1993). Or, as one Court of Appeals put it, where a party merely appeals a Bankruptcy Court order lifting the automatic stay without also obtaining a stay of that order pending appeal, the Bankruptcy Court's order becomes "final" and "'returns the parties to the legal relationships that existed before the stay became operative.'" In re Kahihikolo, 807 F.2d 1540, 1543 (11th Cir. 1987) (quoting In re Winslow, 39 B.R. 869, 871 (Bankr. N.D. Ga. 1984)). Debtor's purported appeal from the Settlement Agreement therefore does not, under the law, justify delaying entry of the Injunction and Final Judgment here. To the contrary, doing so would run counter to established legal principles. Waiting until resolution of the appeal also would effectively grant a de facto stay o f the Bankruptcy Court's Settlement Order without Debtor's having satisfied the requirements for a stay pending appeal. In order to obtain a stay of a Bankruptcy Court order pending appeal, the moving party must demonstrate: (1) a "substantial showing of likelihood of success" on the merits of the appeal (and "not merely the possibility of success"); (2) irreparable harm if the stay is denied; (3) no substantial harm will be suffered by others if the stay is granted; and (4) there will be no harm to the public interest by granting the stay. In re Forty-Eight Insulations, Inc., 115 F.3d 1294, 1300-01 (7th Cir. 1997). Debtor here failed to seek any stay fro m the Bankruptcy Court in the first instance and has proffered no basis for why he failed to do so, which alone would deny him any entitlement to a stay of the Settlement Order pending appeal. Fed. R. Bankr. P. 8005 (requiring motion for stay pending appeal be made in the first instance to Bankruptcy Court; motion may be made to District Court upon showing of why the relief was not obtained from Bankruptcy Court). Debtor here also has submitted no evidence to meet any of the substantive requirements for a stay 20056/2046167.4 6 Case 1:07-cv-385 Document 23 Filed 02/12/2007 Page 7 of 10 pending appeal, let alone all of them. Most tellingly, far from making a "substantial showing" of likelihood of success on the merits of his alleged appeal, Debtor has made no showing at all on this score. Nor could he, especially in light of the wide latitude afforded Bankruptcy Courts in approving settlements. "Because the bankruptcy judge is 'uniquely positioned to consider the equities and reasonableness of a particular compromise,' [this court on appellate review] will not reverse that determination unless the bankruptcy judge abused his discretion." In re Energy Cooperative Inc., 886 F.2d 921, 926 (7th Cir. 1989) (quoting In re American Reserve Corp., 841 F.2d 159 (7th Cir. 1987) (quotation marks and other citations omitted) and In re Patel, 43 B.R. 500, 505 N.D. Ill. 1984)). Debtor's inability to prove a substantial showing of likelihood of success on his ostensible appeal in itself would bar a stay o f the Settlement Order pending appeal. See In re Forty-Eight Insulations, Inc., 115 F.3d at 1304 (affirming denial of stay pending appeal on this ground alone); In re Uvaydov, 354 B.R. 620, 624 (E.D.N.Y. 2006) ("Failure to satisfy any one of these criteria for a stay pending appeal dooms the request.") (citing EPlus, Inc. v. Katz (In re Metiom, Inc.), 318 B.R. 263, 271 (S.D.N.Y. 2004)). Third, significant practical considerations counsel against delaying the entry o f the Injunction and Final Judgment until resolution of Debtor's appeal from the Settlement Order. Google has filed claims in excess of $250,000 against Defendants that still pend in the Bankruptcy Court.13 Google's release of such monetary claims against Defendants will be effective only upon full implementation of the Settlement Agreement that was approved by the Bankruptcy Court's Settlement Order, including the entry of the Injunction and Final Judgment here. Meanwhile, the timing of a resolution of the appeal from the Settlement Order currently before the District Court is uncertain, and the timing of any resolution of Debtor's inevitable appeal to the Seventh Circuit is even more uncertain. Waiting until the appeal on the Settlement Order is decided would, as a practical matter, likely require Google to pursue its monetary claims in the Bankruptcy Court in the meantime -- a result that would deny both the Trustee and Google the benefit of their bargain in the Settlement Agreement, would diminish any money available for distribution to other creditors in the Bankruptcy Court proceedings and impose otherwise unnecessary burden on the Bankruptcy Court, the Trustee and Google alike. Indeed, these are the types of practical difficulties that the law seeks to avoid by, as shown above, permitting free 13 Zeller Dec., Exh. 19. 7 20056/2046167.4 Case 1:07-cv-385 Document 23 Filed 02/12/2007 Page 8 of 10 implementation of Bankruptcy Court Orders pending appeal unless a stay is obtained or a bond is posted. Furthermore, a delay in entry of the Injunction and Final Judgment would create increased monetary exposure to Defendants and greater damage to Google. The Injunction and Final Judgment is an indispensable co mponent of the Settlement Agreement's mechanisms for bringing a conclusive end to the various spurious proceedings that Defendants brought against Google and for ensuring against the repetition of such misconduct. For example, as shown in Google's separate Memorandum, Debtor falsely and without authorization continues to purportedly represent Defendant Central Mfg. in cancellation proceedings that it had instituted in the Trademark Trial and Appeal Board ("TTAB") against Google. (Unlike in the Courts, in TTAB proceedings one need not be a lawyer in order to represent an entity.14) Debtor's filings in the TTAB proceedings, unlawfully made on behalf of Defendants here, continue unabated even now and thus continue to impose expense and burden on Google. The clarity o f the Injunction and Final Judgment -- which will be conclusively binding in TTAB proceedings on Defendants15 -- is therefore necessary to ensure a full and complete termination of those proceedings, and delay in entry o f the Injunction and Final Judgment would allow further damage to Google through the expense and burden of continued litigation. Worse yet, delaying entry o f the Injunction and Final Judgment would effectively give Debtor the benefit of a stay o f the Bankruptcy Court's Settlement Order pending appeal without having to post a bond that would protect Google in the event that the stay was erroneously permitted and that would give Google recourse for further harm caused by any such delay. Conclusion For each of the foregoing reasons, plaintiff Google and defendants Central Mfg. Inc. and Stealth Industries, by and through Richard M. Fogel, not individually but as Chapter 7 Trustee, respectfully request that the Court enter the Stipulated Permanent Injunction and Final Judgment. 14 15 Trademark Trial and Appeal Board Manual of Procedure, � 114.01, at 100-39, 100-41. E.g., The Other Telephone Co. v. Connecticut Nat'l Telephone Co., 181 U.S.P.Q. 779, 78182 (Comm'r of Patents 1974) (noting that District Court adjudications are "binding" on TTAB, whereas TTAB decisions are not binding on District Courts). Further authorities and discussion on this subject are set forth in Google's Opposition to Stoller's Motion to Suspend Pending the Trademark Trial and Appeal Board's Decision on Defendant's Motion for Summary Judgment. 20056/2046167.4 8 Case 1:07-cv-385 Document 23 Filed 02/12/2007 Page 9 of 10 DATED: February 12, 2007 Respect fully submitted, GOOGLE INC. By: s/ William J. Barrett_________________ One of Its Attorneys Michael T. Zeller (ARDC No. 6226433) QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP 865 South Figueroa Street, 10th Floor Los Angeles, California 90017 (213) 443-3000 (213) 443-3100 (fax) William J. Barrett (ARDC No. 6206424) BARACK, FERRAZZANO, KIRSCHBAUM, PERLMAN & NAGELBERG, LLP 333 West Wacker Drive, Suite 2700 Chicago, Illinois 60606 (312) 629 5170 (312) 984-3150 (fax) CENTRAL MFG. INC. AND STEALTH INDUSTRIES By: s/ Janice Alwin________________________ By and For The Trustee Richard M. Fogel, Esq. (ARDC No. 3127114) SHAW GUSSIS FISHMAN GLANTZ WOLFSON & TOWBIN LLC 321 North Clark Street, Ste. 800 Chicago, Illinois 60610 Not Individually but as Chapter 7 Trustee Janice Alwin, Esq. (ARDC No. 6277043) SHAW GUSSIS FISHMAN GLANTZ WOLFSON & TOWBIN LLC 321 N. Clark Street, Suite 800 Chicago, Illinois 60610 Counsel for Trustee 20056/2046167.4 9 Case 1:07-cv-385 Document 23 Filed 02/12/2007 Page 10 of 10 CERTIFICATE OF SERVICE I, William J. Barrett, certify that I caused to be served on the parties on the following Service List, manner of service and date as indicated below, a copy of the foregoing: (1) NOTICE OF JOINT MOTION FOR ENTRY OF STIPULATED PERMANENT INJUNCTION AND FINAL JUDGMENT and (2) JOINT MOTION FOR ENTRY OF STIPULATED PERMANENT INJUNCTION AND FINAL JUDGMENT. ______s/ William J. Barrett_______ William J. Barrett SERVICE LIST Leo Stoller 7115 W. North Avene Oak Park, Illinois 60302 Via e-mail to ldms4@hotmail.com (Served via email transmission on February 12, 2007 and overnight delivery on February 13, 2007) Richard M. Fogel, Esq. Janice Alwin SHAW GUSSIS FISHMAN GLANTZ WOLFSON & TOWBIN LLC 321 North Clark Street, Ste. 800 Chicago, Illinois 60610 (Served via messenger delivery on February 13, 2007) 20056/2046167.4 10 Case 1:07-cv-385 Document 25 Filed 02/13/2007 Page 1 of 10 Case 1:07-cv-385 Document 25 Filed 02/13/2007 Page 2 of 10 Case 1:07-cv-385 Document 25 Filed 02/13/2007 Page 3 of 10 Case 1:07-cv-385 Document 25 Filed 02/13/2007 Page 4 of 10 Case 1:07-cv-385 Document 25 Filed 02/13/2007 Page 5 of 10 Case 1:07-cv-385 Document 25 Filed 02/13/2007 Page 6 of 10 Case 1:07-cv-385 Document 25 Filed 02/13/2007 Page 7 of 10 Case 1:07-cv-385 Document 25 Filed 02/13/2007 Page 8 of 10 Case 1:07-cv-385 Document 25 Filed 02/13/2007 Page 9 of 10 Case 1:07-cv-385 Document 25 Filed 02/13/2007 Page 10 of 10 CERTIFICATE OF SERVICE I, William J. Barrett, certify that I caused to be served on the parties on the following Service List, manner of service and date as indicated below, a copy of the foregoing SUPPLEMENTAL DECLARATION OF MICHAEL T. ZELLER. /s/ William J. Barrett William J. Barrett SERVICE LIST Mr. Leo Stoller 7115 W. North Ave., #272 Oak Park, IL 6030 Via email to ldms4@hotmail.com (Served via email transmission and overnight delivery on February 13, 2007) Richard M. Fogel Janice Alwin Shaw Gussis Fishman Glantz Wolfson & Towbin LLC 321 N. Clark St., Suite 800 Chicago, IL 60610 (Served via messenger delivery on February 13, 2007) 402069-1 Case 1:07-cv-385 Document 27 Filed 02/13/2007 Page 1 of 14 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION GOOGLE INC., ) ) Plaint iff, ) ) vs. ) ) CENTRAL MFG. INC. a/k/a CENTRAL ) MFG. CO., a/k/a CENTRAL MFG. CO. ) (INC.), a/k/a CENTRAL ) MANUFACTURING COMPANY, INC. ) and a/k/a CENTRAL MFG. CO. OF ) ILLINOIS; and STEALTH INDUSTRIES, ) INC. a/k/a RENTAMARK and a/k/a ) RENTAMARK.COM, ) ) Defendants. ) Civil Action No. 07 CV 385 Hon. Virginia M. Kendall Hearing Date: February 20, 2007 Hearing Time: 9 a.m. GOOGLE INC.'S SEPARATE MEMORANDUM IN SUPPORT OF JOINT MOTION FOR ENTRY OF STIPULATED PERMANENT INJUNCTION AND FINAL JUDGMENT 20056/2057633.2 Case 1:07-cv-385 Document 27 Filed 02/13/2007 Page 2 of 14 The parties to this suit, Plaintiff Google Inc. ("Google") and Defendants (by and through the Trustee duly appointed by the United States Bankruptcy Court), have separately filed a Joint Motion for Entry of Stipulated Permanent Injunction and Final Judgment. Google respectfully submits this Memorandum to provide the Court with a summary o f the facts that led to this action and that establish why Google st ill needs, and is entitled to, relief in the form of an injunction to ensure that the misconduct against Google is not repeated and that the continuing effects to Google from that misconduct are ameliorated. Summary Of Facts Giving Rise To Suit And Supporting An Injunction A. Defendants' History Of Vexatious Litigation. Defendants are two putative corporations, Central Mfg. Inc. ("Central Mfg.") and Stealth Industries, Inc. ("Stealth"). Leo Stoller, who is currently in Chapter 7 bankruptcy ("Debtor"), has claimed to be Defendants' former principal and to have employed at least another three others in conducting the affairs of Defendants.1 The Defendants are currently part of Debtor's Chapter 7 estate, which is under the administration of the Trustee. As the Seventh Circuit, Courts in this District and the Trademark Trial and Appeal Board repeatedly have found, Defendants' affairs for at least the past decade have included an extensive scheme of fraudulently claiming trademark rights for the purpose of harassing and attempting to extort money out of legitimate commercial actors, both large and small.2 Indeed, the judicial decisions awarding fees and otherwise imposing sanctions against Defendants and Debtor for their fraudulent and other illegal conduct, their assertion of rights that they do not own, their pattern of bringing merit less lawsuits and even their fabrication of evidence are legion. Although it has exhibited many facets, Defendants' scheme at its core has involved targeting companies (and sometimes individuals) with threats of litigation that were based on Defendants' false claims to own literally many thousands of trademarks, co-joined with Defendants' offers to "license" their non-existent trademark rights for an amount less than the frivolous litigation would cost the victims. Then, in many instances, if no money was forthcoming, Defendants proceeded to file sham proceedings in the Courts and/or in the Trademark Trial and Appeal Board ("TTAB"). Although Google cannot be sure of the exact number, Defendants instituted in 1 Declaration of Michael T. Zeller, dated February 12, 2007 and previously filed with the Court ("Zeller Dec."), Exh. B at pp.14-18. 2 A summary of examples of these decisions is attached hereto as Appendix 1. 20056/2057633.2 1 Case 1:07-cv-385 Document 27 Filed 02/13/2007 Page 3 of 14 excess of 37 lawsuits in this District alone and filed hundreds of proceedings in TTAB.3 At least seven of those lawsuits resulted in fee awards against Defendants, and none of them resulted in any Court decision on the merits granting Defendants relief. As Judge Coar observed in Central Mfg. Co. v. Brett, "no Court has ever found infringement of any trademark allegedly held by Stoller or his related companies in any reported opinion."4 B. The Pure Fishing and Brett Decisions. In late 2005, Defendants were in the process of losing yet two more of the many frivolous lawsuits that they had brought and were facing the prospect of paying significant fee awards. In one, Central Mfg. Co. v. Brett,5 the Court ruled that Defendant Central Mfg. lacked the trademark rights it had claimed and on that basis, among others, entered judgment against it and ordered Defendant Central Mfg. to pay attorney's fees. 6 In reviewing the evidence, the Court found that Defendant Central Mfg. had "engage[d] in a pattern and practice of harassing legitimate actors for the purpose of extracting a settlement amount. The judicial system is not to be used as an aid in such deliberate, malicious, and fraudulent conduct."7 The Court also found that it had offered "questionable, and seemingly fantastical documents" and "inconsistent, uncorroborated, or arguably false testimony" in the suit.8 In the other case, Central Mfg. Co. v. Pure Fishing, Inc.,9 the Court entered judgment against Defendant Central Mfg. as a sanction for its and Debtor's abuse of the legal process and their violations of Rule 11. The Court observed that Debtor "has earned a reputation for initiating spurious and vexatious federal litigation." In the particular case before it, the Court found Defendant Central Mfg., Debtor and their counsel had engaged in "gross misconduct" and "unethical conduct" that included (1) Debtor's signing of pleadings with counsel's name, even though Debtor is not a lawyer; (2) bringing motions "that lacked any evidentiary support" and 3 A list of these cases is attached as Exhibit A to the Complaint and also included in the Brett decisio n, attached as Exh. 23 to the Zeller Dec. 4 Zeller Dec., Exh. 23, at p. 2. 5 No. 04 C 3049 (N.D. Ill) (Coar, J.). 6 Zeller Dec., Exh. 23, at p. 30. 7 Id., at p. 27. 8 Id. 9 No. 05 C 725 (N.D. Ill) (Lindberg, J.). A copy of this decision is Exh. 1 to the Supplemental Declaration of Michael T. Zeller, dated February 13, 2007 and filed concurrently herewith ("Supp. Zeller Dec."). 20056/2057633.2 2 Case 1:07-cv-385 Document 27 Filed 02/13/2007 Page 4 of 14 were otherwise "baseless"; and (3) evincing a "flagrant contempt for this Court" and "an appalling lack of regard" for the judicial process.10 C. Defendants Target Google And Hundreds Of Others. Soon after these decisio ns in Pure Fishing and Brett, Defendants embarked on an expanded scheme. Between November 2005 and July 2006 alone, Defendants filed more than 1800 requests for extensions of time to oppose applications for trademark registrations that had been published by the United States Trademark Office.11 Such extension requests, by their mere filing, delayed the issuance of each and every trademark registration that was the subject of Defendants' actions.12 Simultaneous with this proliferation of filings, Defendants sought to extract money or property out of at least many hundreds of applicants by asserting that Defendants purportedly owned rights to all of these many hundreds of marks which were the subject of those applications. Many of these extortionate demands and false representations directed to applicants for registration are evidenced in Defendants' sham filings with the Trademark Office itself. For example, Defendants' April 12, 2006 request for an extension of time to oppose a trademark application for "VP VENTURES" included the following: Please contact (773-589-0915 FAX) VENTURE BRAND LICENSING to resolve this trademark controversy VENTURE v VP VENTURES and/or merely file an Express Abandonment! See rentamark.com, the nationally renowned trademark licensing and enforcement firm since 1974 for all of your VENTURE BRAND LICENSING, trademark valuations, expert witness testimony and trademark litigation support services, ie., brief writing, trademark searches, legal research, appeals, etc.13 10 Supp. Zeller Dec., Exh. 1. Judge Lindberg subsequently ordered Defendants and Debtor to pay in excess of $900,000 in fees and damages and declared them to be "vexatious" litigants. Zeller Dec., Exh. 13. 11 Zeller Dec., Exh. 12, at pp. 1, 12. 12 Id., at p. 12. 13 A copy o f this filing is Exhibit C to the Complaint. Many of Defendants' more than 1800 filings included virtually identical language, except that Defendants subst ituted a different bogus "licensing" ent it y that purported to have a name supposedly similar to the mark which was the subject of the application -- such as "ELLA BRAND LICENSING," "FINGO BRAND LICENSING," "SKILL BRAND LICENSING," "MERMAID BRAND LICENSING," "DIAMOND BRAND LICENSING," "STRA BRAND LICENSING," "WORKOUT BRAND LICENSING," "FRIENDS NETWORK BRAND LICENSING," "SIFI BRAND LICENSING," "PM BRAND LICENSING," "NANO BRAND LICENSING," "HAPPY BRAND LICENSING," "LAKE BRAND LICENSING" and "RUNNER BRAND LICENSING." See Complaint, Exhibit D. 20056/2057633.2 3 Case 1:07-cv-385 Document 27 Filed 02/13/2007 Page 5 of 14 1. Defendants' Falsely Claim Rights To "Google" And Demand Money. It was in this context of Defendants' expanded scheme of making spurious claims to many thousands of marks, and their pattern of unlawfully demanding licensing fees and threatening and filing sham legal proceedings, that Defendants targeted Plaintiff Google. On November 27, 2005, as one of the some 1800 requests for extension of time eventually filed by Defendants with TTAB, Defendant Central Mfg. sought a request for an extension of time to oppose an application for registration filed by Plaintiff Google for certain goods.14 Two days later, Defendants sent Google a letter that purported to be on the letterhead of an entit y called "GOOGLE BRAND PRODUCTS & SERVICES," which claimed to have been in business "SINCE 1981."15 In it, Defendants alleged to "hold commo n law rights" in the mark GOOGLE and to "have been using the similar mark GOOGLE for many years." The attachments to the letter also repeatedly proclaimed Defendants' "ownership of the mark GOOGLE," and contained spurious notices of copyright registration and trademark registration for "Google." In this letter, Defendants threatened to harass Google through legal proceedings -- alo ng with "extensive discovery" that included depositions of Applicant's "executive officers" -- and referenced the fact that the mere filing of a legal proceeding, regardless of its lack of merit, would cost Google at least $150,000. In exchange for refraining from inflicting such damage, Defendants demanded that Google either (1) pay them at least $100,000 or a percentage of Google's revenues as a "licensing" fee; or else (2) cease all use of GOOGLE in connection with Google's business. 2. Defendants' TTAB Proceedings Against Google, One Of Which Results In Sanctions Against Defendant Central Mfg. After Google refused Defendants' demands, Defendant Central Mfg. then instituted proceedings against Google in TTAB and the Trademark Office. Two are most pertinent here. First, on March 1, 2006, Defendant Central Mfg. filed Opposition No. 91170256 (the "Opposition") against Google's Application S/N 76314811 for the GOOGLE mark for various goods and services (the "Application").16 The Opposition was the result of a request for the extensio n of time to oppose the Application that Defendant Central Mfg. had filed on November 27, 2005 and thus was among the 1800 requests that Defendants had filed with TTAB beginning in November 2005. 14 15 16 See Complaint, Exhibit H. Defendants' November 29, 2005 letter and its attachments is Exhibit I to the Complaint. Zeller Dec., Exh. 8. 4 20056/2057633.2 Case 1:07-cv-385 Document 27 Filed 02/13/2007 Page 6 of 14 In the aftermath of Defendants' barrage of filings in TTAB, TTAB issued a March 28, 2006 Show Cause Order (the "OSC"). The OSC noted that Debtor and the entities he purported to control had engaged in a "pattern of misconduct and abuse of the TTAB's processes" over the course of "many years."17 It also directed Debtor and Defendants to provide "for each of the marks for which you requested an extension of time to file an opposition, evidence that supports a claim that you may be damaged by registration of the mark" and to "demonstrate that the extension requests were not filed for improper purposes but, instead, were based on cognizable rights you may have arising under the Trademark Act."18 Subsequently, by Order dated July 14, 2006, TTAB found that Defendants' response to the OSC did not provide any of the proof that the law required and that TTAB had mandated: "Your submissions do not substantiate your rights in any o f the claimed marks, let alone support a colorable claim of damage.... You submitted no evidence of products or services bearing these alleged marks, no evidence that you have sold any products or services under these marks, and no evidence of your advertising of goods or services with these marks."19 Indeed, as TTAB observed, the evidence Defendants did provide only served to "reinforce the conclusion that you are holding up thousands of applications in an attempt to coerce applicants to license, i.e., 'rent,' trademarks to which you have not demonstrated any proprietary right."20 TTAB accordingly found that Defendants lacked "a colorable claim" and had "filed the extension requests for improper purposes, namely, to harass the applicants to pay you to avoid litigation or to license one of the marks in which you assert a baseless claim of rights."21 For those violations, which constituted "egregious" misconduct, TTAB imposed an array of sanct ions.22 One sanction included TTAB's outright dismissal of Defendant Central Mfg.'s Opposition proceeding against Google.23 17 18 Id. � 13, Exh. 12, at pp. 1-2 (July 14, 2006 Order). Id., at pp. 2-3, 9 (emphasis added). 19 Id., at p. 9 (emphasis added). 20 Id., at pp. 9-10. 21 Id., at pp. 11-12 (emphasis added). 22 Id., at pp. 12-13. These sanctions included vacating "each request for extension of time to oppose" Defendants or Debt

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