Modavox, Inc. v. Yahoo! Inc.

Filing 385

ORDER GRANTING re 384 Stipulation to Stay Taxable Costs Pending Final Determination on Appeal filed by Augme Technologies, Inc., Yahoo! Inc.. Signed by Judge Joseph C. Spero on 4/1/13. (klhS, COURT STAFF) (Filed on 4/1/2013)

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[COMPLETE LIST OF COUNSEL ON SIGNATURE PAGE]

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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AUGME TECHNOLOGIES, INC.,

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Plaintiff,

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v.

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Case No. C-09-5386 JCS
STIPULATION TO STAY TAXABLE
COSTS PENDING FINAL
DETERMINATION ON APPEAL

YAHOO! INC.,

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Defendant.
YAHOO! INC.,

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Judge: Hon. Joseph C. Spero

Counterclaim Plaintiff,
v.
AUGME TECHNOLOGIES, INC. and
WORLD TALK RADIO, LLC,
Counterclaim Defendants.

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LIBA/2383943.2

STIPULATION TO STAY TAXABLE COSTS PENDING FINAL DETERMINATION ON APPEAL
CASE NO. C-09-5386-JCS

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Pursuant to Civil L. R. 7-12 and 54, the parties, through their undersigned counsel, hereby
stipulate, subject to the Court’s approval, as follows:
WHEREAS, on December 17, 2012, Yahoo! Inc. (“Yahoo!”) and Augme Technologies, Inc.

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(“Augme”) stipulated that $140,321.28 in costs is properly taxable against Augme, pertaining to

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Augme’s patent infringement claims and Yahoo!’s counterclaims of invalidity, and on December 19,

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2012, the Court entered an order taxing the stipulated costs. (ECF Nos. 367, 371);

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WHEREAS, on December 27, 2012, Yahoo!, Augme, and World Talk Radio LLC (“WTR”)

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stipulated that $22,664.33 in costs is properly taxable against Augme and WTR, pertaining to

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Yahoo!’s patent infringement claims, and on January 2, 2013, the Court entered an order taxing the

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stipulated costs. (ECF Nos. 377, 378);
WHEREAS, on February 4, 2013, counsel for Augme and Yahoo! met and conferred
regarding Augme’s request to stay costs;
WHEREAS, following these discussions, Augme agrees to secure an irrevocable line of

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credit (“ILOC”) naming Yahoo! as the beneficiary and, in exchange for this security, Yahoo! agrees

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to stay costs pending a final determination on appeal.

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THEREFORE, Yahoo! and Augme stipulate and request as follows:

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1.

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That Augme, through Wells Fargo Bank, provide an ILOC with a three year term,

naming Yahoo! as the beneficiary in an amount equal to 125% of taxable costs ($203,732.01).
2.

That the ILOC is intended to secure an amount equal to the taxable costs

($162,985.61) plus an amount sufficient to cover statutory interest.
3.

That the ILOC include the following drawing statement as a prerequisite to Yahoo!

accessing the funds:
Yahoo! Inc. requests a draw down on the line of credit based on either (1) a final
determination, with no further right of appeal, in favor of Yahoo! Inc. in the matter of
Augme Technologies, Inc. v. Yahoo! Inc., No. 09-5386 (N.D. Cal. Aug. 8, 2012),
appeals docketed, No. 13-1121 (Fed. Cir. Dec. 19, 2012) and No. 13-1195 (Fed. Cir.
Feb. 6, 2013) in the Federal Circuit, or (2) on Augme’s declaration of bankruptcy
before a final determination.
4.

That Yahoo! may not draw down the line of credit unless and until there is either a

final determination, with no further right of appeal, in favor of Yahoo! in the matter of Augme
LIBA/2383943.2

STIPULATION TO STAY TAXABLE COSTS PENDING FINAL DETERMINATION ON APPEAL
CASE NO. C-09-5386-JCS

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Technologies, Inc. v. Yahoo! Inc., No. 09-5386 (N.D. Cal. Aug. 8, 2012), appeals docketed, No. 13-

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1121 (Fed. Cir. Dec. 19, 2012) and No. 13-1195 (Fed. Cir. Feb. 6, 2013) in the Federal Circuit, or a

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declaration of bankruptcy by Augme before a final determination.

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reasonable period of time, contact Wells Fargo Bank and cancel the ILOC.

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6.

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That if Yahoo! draws down the line of credit in the event of Augme’s bankruptcy,

Yahoo! shall return the amount drawn if Augme ultimately prevails on appeal.

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That if the judgment on appeal is in favor of Augme, Yahoo! shall, within a

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In the event that the ILOC expires before there is a final determination in favor of

either party, Augme agrees to either renew the ILOC or secure a new line of credit on the same
terms.
It is so STIPULATED.
Dated: March 29, 2013

Respectfully submitted,

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By: /s/ Gregory S. Bishop
Thomas J. Scott Jr. (pro hac vice)
[e-mail]
Jennifer A. Albert (pro hac vice)
[e-mail]
GOODWIN PROCTER LLP
901 New York Avenue NW
Washington, DC 20001
Tel.: [phone]; Fax: [phone]

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Gregory S. Bishop (184680)
[e-mail]
Charles F. Koch (256683)
[e-mail]
Daniel Willis Richards (280595)
[e-mail]
Ruchi W. Kwatra (270905)
[e-mail]
GOODWIN PROCTER LLP
135 Commonwealth Drive
Menlo Park, CA 94025-1105
Tel.: [phone]; Fax: [phone]

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Michael G. Strapp (pro hac vice)
GOODWIN PROCTER LLP
Exchange Place
53 State Street
Boston, MA 02109
Tel.: [phone]; Fax: [phone]

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LIBA/2383943.2

STIPULATION TO STAY TAXABLE COSTS PENDING FINAL DETERMINATION ON APPEAL
CASE NO. C-09-5386-JCS

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Attorneys for Plaintiff and Counterclaim
Defendant AUGME TECHNOLOGIES and
Counterclaim Defendant WORLD TALK
RADIO, LLC

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Dated: March 29, 2013

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By: /s/ John K. Blake, Jr.
Rachel Krevans (116421)
[e-mail]
Richard S.J. Hung (197425)
[e-mail]
Daniel P. Muino (209624)
[e-mail]
J. Ryan Gilfoil (246493)
[e-mail]
John K. Blake, Jr. (262906)
[e-mail]
MORRISON & FOERSTER LLP
425 Market Street, 32nd Floor,
San Francisco, California 94105-2482
Tel.: [phone]
Fax: [phone]

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Attorneys for Defendant and Counterclaim
Plaintiff YAHOO! INC.

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Dated: April 1, 2013

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LIBA/2383943.2

STIPULATION TO STAY TAXABLE COSTS PENDING FINAL DETERMINATION ON APPEAL
CASE NO. C-09-5386-JCS

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ATTESTATION OF E-FILED SIGNATURES
I, Gregory S. Bishop, am the ECF User whose ID and Password are being used to file this

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STIPULATION TO STAY TAXABLE COSTS PENDING FINAL DETERMINATION ON

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APPEAL. In compliance with Civ. L.R. 5-1(i)(3), I hereby attest that John K. Blake, Jr. has

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concurred to its filing.

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Dated: March 29, 2013
By: /s/ Gregory S. Bishop
Gregory S. Bishop

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LIBA/2383943.2

STIPULATION TO STAY TAXABLE COSTS PENDING FINAL DETERMINATION ON APPEAL
CASE NO. C-09-5386-JCS

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CERTIFICATE OF SERVICE
I certify that this document filed through the ECF system will be sent electronically to the

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registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will

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be sent to those indicated as non-registered participants on March 29, 2013.

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Dated: March 29, 2013
By: /s/ Gregory S. Bishop
Gregory S. Bishop

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LIBA/2383943.2

STIPULATION TO STAY TAXABLE COSTS PENDING FINAL DETERMINATION ON APPEAL
CASE NO. C-09-5386-JCS

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