Soilworks LLC v Midwest Industrial Supply Inc

Filing 67

MOTION for for Order to Include "Synthetic Organic Dust Control" as part of "Midwest's Marks" by Midwest Industrial Supply Inc. (Attachments: # 1 Exhibit A: Riverdeep Complaint, # 2 Exhibit B: Westlaw Cases, # 3 Exhibit C - Midwest's Answer's to Plaintiff's Second Set of Interrogatories, # 4 Exhibit D: 071130 Midwest's Settlement Letter, # 5 Exhibit E - Midwest's Settlement Conference Memorandum, # 6 Exhibit F - Excerpts from Deposition of Robert Vitale1, # 7 Exhibit G - U.S. Trademark Registration No. 3,318,243, # 8 Text of Proposed Order)(Skeriotis, John)

John M. Skeriotis 388 S. Main St., Suite 500 Akron, Ohio 44311-4407 Telephone: [phone] Facsimile: 330.253.8601 [e-mail] Internet: www.brouse.com

November 30, 2007 John Passarelli, Esq. E. Scott Dosek, Esq. Kutak Rock LLP 1650 Farnam Street Omaha, NE 68102 Re: FRE 408 SETTLEMENT DISCUSSIONS ORIGINAL BY MAIL VIA E-MAIL [e-mail] [e-mail]

Good Faith Settlement Offer Soilworks, LLC v. Midwest Industrial Supply, Inc. Case No. 2:06-CV-02141-DGC Our Ref.: 21786.43708

Dear Scott and John: Pursuant to the Court's Order regarding the deadline for engaging in good faith settlement negotiations, I am providing you with an offer of settlement regarding the above-captioned case. As discussed with both of you, I have repeatedly requested an official, written settlement offer from Soilworks and, to date, I have received no such written settlement offer. I have written my concerns regarding the need for a written settlement offer in e-mails to both of you. Notwithstanding the above, Midwest is willing to settle the above-captioned dispute with Soilworks on the following confidential terms and conditions. The following terms and conditions would be pursuant to a written settlement agreement that dismisses all causes of action, including counterclaims, with prejudice and both parties paying their own attorneys' fees. Settlement Terms: 1. Soilworks shall immediately cease and desist from using/stating the following in all advertisements, promotional materials, etc., including, but not limited to, the World Wide Web: a. b. c. d. e. synthetic organic dust control agent; claims that it is a manufacturer; ultra pure; oil sheen free; environmental claims where no testing/data exists including, but not limited to environmental/aquatic toxicity.

John Passarelli, Esq. E. Scott Dosek, Esq. November 30, 2007 Page 2 of 2 2. 3. A financial settlement paid to Midwest of US $1 per gallon of Durasoil products sold to date. Acknowledgement that the Midwest patents-in-suit are valid and that Soilworks will take no action whatsoever seeking to invalidate the patents including, but not limited to, declaratory judgment proceedings, reexamination, or aiding any third party seeking to invalidate the Midwest patents-in-suit. Midwest will agree not to publicize anything indicating that the Durasoil product is an infringement of the Midwest patents-in-suit.

4.

Please let me know your client's position with respect to the above settlement offer on, or before, Wednesday, December 5, 2007. Very truly yours, BROUSE MCDOWELL

John M. Skeriotis JMS/cjn
699174.1