Oracle Corporation et al v. SAP AG et al

Filing 1151

Declaration of Tharan Gregory Lanier in Support of 1150 Opposition/Response to Motion,, 1149 Opposition/Response to Motion, Declaration of Tharan Gregory Lanier in Support of Defendants' Oppositions to Oracle's Motions for Leave to File Motions for Reconsideration Regarding (1) Saved Development Costs and (2) Up-Sell and Cross-Sell Projections, and Motion for Clarification filed bySAP AG, SAP America Inc, Tomorrownow 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)(Related document(s) 1150 , 1149 ) (Froyd, Jane) (Filed on 5/1/2012)

EXHIBIT 9

Page 1

REARDEN LLC, et al., Plaintiffs, v. REARDEN COMMERCE, INC., Defendant.
No. C 06-07367 MHP
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
CALIFORNIA
2009 U.S. Dist. LEXIS 15590

February 25, 2009, Decided
February 26, 2009, Filed
PRIOR HISTORY: Rearden LLC v. Rearden
Commerce, Inc., 597 F. Supp. 2d 1006, 2009 U.S. Dist.
LEXIS 14836 (N.D. Cal., 2009)

COUNSEL: [*1] For Rearden LLC, a California limited
liability company, Rearden Productions LLC, a
California limited liability company, Rearden Studios
LLC, a California limited liability company, Rearden Inc,
a California corporation, Rearden Properties LLC, a
California limited liability company, Plaintiffs: Jason A.
Yurasek, LEAD ATTORNEY, Perkins Coie LLP, San
Francisco, CA; John Thomas McCarthy, LEAD
ATTORNEY, Morrison & Foerster LLP, San Francisco,
CA; Monty Agarwal, LEAD ATTORNEY, Arnold &
Porter, San Francisco, CA; Ronald L. Johnston, LEAD
ATTORNEY, Rachel Lena Chanin, Trenton Herbert
Norris, Arnold & Porter LLP, San Francisco, CA; Brian
Lawrence Levine, Palo Alto, CA; David Joseph Perez,
Greenberg Traurig LLP, East Palo Alto, CA; Douglas L.
Hendricks, Morrison & Foerster, San Francisco, CA;
Herbert Harris Finn, Greenberg Traurig, LLP, Chicago,
IL; Shylah R. Alfonso, PRO HAC VICE, Perkins Coie
LLP, Seattle, WA;
For Rearden Commerce Inc, a California coroporation,
Defendant: Daniel Todd McCloskey, Greenberg Traurig,
LLP, Palo Alto, CA; David Joseph Perez, Greenberg
Traurig LLP, East Palo Alto, CA; Herbert Harris Finn,
Greenberg Traurig, LLP, Chicago, IL; James J Lukas, Jr.,

PRO HAC VICE, Greenberg [*2] Traurig, LLP,
Chicago, IL; Kevin John O'Shea, Richard Daniel Harris,
Greenberg Traurig LLP, Chicago, IL.
JUDGES: MARILYN HALL PATEL, United States
District Court Judge.
OPINION BY: MARILYN HALL PATEL
OPINION

MEMORANDUM & ORDER
Re: Plaintiff's Motion for Leave to Seek
Reconsideration of Grant of Summary Judgment
On January 27, 2009, the court entered an order that
granted a summary judgment motion filed by defendant
Rearden Commerce, Inc., and denied a summary
judgment motion filed by plaintiffs Rearden LLC, et al.
See Docket No. 235 (Amended Order). On February 9,
2009, plaintiffs requested leave to seek reconsideration of
that order. Plaintiffs attempt to "specifically show . . .
manifest failure by the Court to consider material facts or
dispositive legal arguments which were presented to the
Court before [the Court issued an] interlocutory order"
and thus meet the requirements of Civil Local Rule
7-9(b)(3). Plaintiffs advance four arguments.

Page 2
2009 U.S. Dist. LEXIS 15590, *2

Plaintiffs contend that the court erroneously failed to
consider non-consumer confusion, relying in particular
upon Au-Tomotive Gold, Inc. v. Volkswagen of Am., Inc.,
457 F.3d 1062, 1078 n.11 (9th Cir. 2006). See Docket
No. 243 (Mot.) at 2 & 4. That case does not license courts
[*3] to base their infringement analysis upon the sorts of
non-consumer confusion relied upon by plaintiffs, e.g.,
confusion of investors, partners, acquirers and potential
employees. It merely restates the uncontroversial rule of
law that post-consumer confusion (e.g., confusion arising
when a potential consumer sees an item of clothing on the
street) can establish likelihood of confusion under the
Lanham Act. Id. at 1077-1078. Neither in their briefing
nor at oral argument did plaintiffs present a viable theory
of post-consumer confusion. The irrelevance of
Au-Tomotive is highlighted by the fact that plaintiffs did
not bother to cite it in their moving papers. See Docket
No. 127 (Pf.'s MSJ) at iii; Docket No. 202 (Pf.'s Reply) at
ii; Docket No. 174 (Pf.'s Opp. to Def.'s MSJ) at iii.
Second, plaintiffs read Thane Int'l, Inc. v. Trek
Bicycle Corp., 305 F.3d 894 (9th Cir. 2002), as holding
that "the correct question in this Circuit is whether a
reasonable person might assume that Rearden Commerce
or its technology was incubated or sponsored by, or
otherwise associated or affiliated with, Rearden." Mot. at
2, see also 5-7. The Thane court did not reverse the lower
court's grant of summary judgment simply [*4] because
some reasonable person could think the two parties were
affiliated; rather, the court found that in that case a
reasonable jury could find that there was a likelihood of
consumer or post-consumer confusion. Id. at 903. As
with Au-Tomotive, plaintiffs failed to cite Thane until the
instant motion. See Pf.'s MSJ at iv; Pf.'s Reply at iii; Pf.'s
Opp. to Def.'s MSJ at vi.
It is also argued that the court erred by granting
defendant's motion for summary judgment without any
consideration of the Rule 56(f) declaration plaintiffs filed
with their opposition brief. See Docket No. 174 (Yurasek
Rule 56(f) Dec.). Plaintiffs filed their sixteen-page Rule
56(f) declaration along with 947 other pages of
declarations and exhibits. See Docket No. 175 (Yurasek
Opp. Dec.) (including 102 separate exhibits) & Docket
No. 176 (Perlman Opp. Dec.) (including 85 separate
exhibits). The fact that the court did not specifically
mention a particular declaration or exhibit in its order
does not mean it was not considered.
In their opposition brief, plaintiffs did not explain the

significance of the Rule 56(f) declaration to plaintiffs'
ability to oppose summary judgment. Plaintiffs' sole
reference to the [*5] declaration in their brief was
included in a footnote asserting that defendant had
generally failed to meet its discovery obligations. See
Pf.'s Opp. to Def.'s MSJ at 21 n.18; see also Docket No.
244 (Levine Dec.), Exh. 10 (excerpt from March 27,
2008, hearing transcript in which court instructs
plaintiffs' counsel to explain discovery needed in context
of opposition brief). The declaration itself was another
litany of hyperbolic accusations and petty grievances.
While charging defendant with every possible form of
discovery abuse, the declaration failed to demonstrate
prejudice to plaintiffs. The declaration specifically
focused on defendant's purported failure to comply with
discovery requests that plaintiffs postulated would bring
to light incidents of actual consumer or post-consumer
confusion. Plaintiffs had over a year and a half between
the time they chose to file their complaint and the time
that they filed their opposition to conduct and produce
scientifically valid surveys of their purported consumers
or produce other evidence of consumer confusion.
Plaintiffs' heavy reliance upon supposedly relevant
discovery from defendant merely highlighted plaintiffs'
own failure to produce [*6] evidence relevant to actual
confusion. Unlike Garrett v. City and County of San
Francisco, 818 F.2d 1515, 1519 (9th Cir. 1987), in which
a Title VII claimant requested specific documents that
only the city possessed, information about consumer
confusion is not in the "sole possession of the opposing
party." Id. (citation omitted). In ruling upon the motions,
the declaration was considered and discounted, as
plaintiffs did not show that further discovery would
produce anything meaningful.
Finally, plaintiffs are correct that the court's order
misstated the applicable standard for infringement in one
phrase that referred to "a strong likelihood of confusion."
Amended Order at 20 (emphasis added). Yet the order set
forth the correct standard at the outset of the Sleekcraft
analysis, see id. at 10, and the court used such standard
throughout its analysis and decision-making. As the
court's analysis demonstrates, no reasonable jury could
find that defendant's use of "Rearden" creates a likelihood
of confusion.
In summary, plaintiffs have failed to show a manifest
failure that would entitle them to leave to file a motion
for reconsideration pursuant to Civil Local Rule 7-9.
Plaintiffs' motion [*7] is therefore DENIED.

Page 3
2009 U.S. Dist. LEXIS 15590, *7

IT IS SO ORDERED.

MARILYN HALL PATEL

Dated: February 25, 2009

United States District Court Judge

/s/ Marilyn Hall Patel

Northern District of California