O'Bannon, Jr. v. National Collegiate Athletic Association et al

Filing 177

Administrative Motion to File Under Seal filed by Conference USA. (Attachments: #1 Declaration Declaration of Leane K. Capps in Support of Conference USA, Inc's Administrative Motion to Seal Confidential Trial Exhibits, #2 Declaration Declaration of Britton Banowsky in Support of Conference USA, Inc.'s Administrative Motion to Seal Confidential Trial Exhibits, #3 Declaration Declaration of Karen Brodkin in Support of Conference USA, Inc.'s Administrative Motion to Seal Confidential Trial Exhibits, #4 Proposed Order, #5 Exhibit Unredacted Exhibit 3028, #6 Exhibit Unredacted Exhibit 3185 Pt. 1, #7 Exhibit Unredacted Exhibit 3185 Pt. 2, #8 Exhibit Unredacted Exhibit 3186, #9 Exhibit Unredacted Exhibit 3207, #10 Exhibit Unredacted Exhibit 2133, #11 Exhibit Unredacted Exhibit 2134, #12 Exhibit Unredacted Exhibit 2213, #13 Exhibit Unredacted Exhibit 2226)(Capps, Leane) (Filed on 6/4/2014)

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Leane K. Capps (Pro Hac Vice)
POLSINELLI PC
2501 N. Harwood Street, Ste. 1900
Dallas, TX 75201
Telephone: [phone]
Facsimile: [phone]
Wesley D. Hurst (CA #127564)
POLSINELLI LLP
2049 Century Park East, Suite 2300
Los Angeles, CA 90067
Telephone: [phone]
Facsimile: [phone]
Attorneys for
Non-Party Conference USA, Inc.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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EDWARD C. O’BANNON, JR., on behalf
of himself and all others similarly situated,
Plaintiffs
v.
NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION (NCAA); ELECTRONIC
ARTS, INC.; and COLLEGIATE
LICENSING COMPANY,

Case No. 4:09-cv-3329 CW
NON-PARTY CONFERENCE USA, INC.’S
ADMINISTRATIVE MOTION TO SEAL
CONFIDENTIAL TRIAL EXHIBITS
Judge: The Honorable Claudia Wilken

Defendants

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NON-PARTY CONFERENCE USA, INC.’S ADMINISTRATIVE MOTION TO SEAL CONFIDENTIAL TRIAL EXHIBITS
Case No. 09-cv-3329-CW

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Pursuant to Civil L.R. 7-11 and 79-5, Conference USA, Inc. (“CUSA”), a non-party to

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this case, respectfully moves this Court for an order protecting its and its non-party broadcast

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partners’ highly confidential broadcast rights agreements from public disclosure at the trial of this

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case scheduled to begin June 9, 2014. CUSA asks the Court to seal these trial exhibits, only

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allow the exhibits to be received in camera at trial as opposed to in open court, and close the

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courtroom during any trial testimony concerning the agreements. In support of this Motion,

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CUSA also attaches the declarations of Leane K. Capps, Britton Banowsky, and Karen Brodkin.

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Background

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In August 2011, Antitrust Plaintiffs served CUSA with a subpoena seeking numerous

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categories of documents. CUSA objected to the subpoena, and Plaintiffs filed a motion to compel

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CUSA’s production of the agreements at issue.

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CUSA ultimately agreed to produce the

agreements, but only as part of a negotiated agreement with Antitrust Plaintiffs that use of the

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materials would be strictly for “Outside Attorneys’ Eyes Only.” The Protective Order (Dkt. No.
320) was then modified to include “Outside Attorneys’ Eyes Only” protection. (Dkt. No. 401).

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Only with this confidentiality and assurances that these agreements would not be disclosed, did

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CUSA produce documents in response to the subpoena, including broadcast rights agreements.

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On May 26, 2014, counsel for the NCAA, Thane Rehn, notified CUSA of the NCAA’s
intention to use the following “Outside Attorneys’ Eyes Only” documents of CUSA as trial
exhibits:

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Exhibit 3028 (CUSA_NCAA00000571 - CUSA_NCAA00000601) (CSTV
Agreement)

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Exhibit 3185 (CUSA_NCAA00077102 – CUSA_NCAA00077275) (Bowl
Championship Series Agreement)

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Exhibit 3186 (CUSA_NCAA00000509 - CUSA_NCAA000000520) (CBSC
Rights Agreement Extension Term Sheet)

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NON-PARTY CONFERENCE USA, INC.’S ADMINISTRATIVE MOTION TO SEAL CONFIDENTIAL TRIAL EXHIBITS
Case No. 09-cv-3329-CW

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Exhibit 3207 (CUSA_NCAA00000823 - CUSA_NCAA00000835) (Fox Binding
Term Sheet)

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On May 27, 2014, Plaintiffs’ counsel, Kelly L. Tucker, notified CUSA of Plaintiffs’

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intention to use the following “Outside Attorneys Eyes Only” documents, produced by CUSA, as

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trial exhibits:

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Exhibit 2133 (CUSA_NCAA00000571 - CUSA_NCAA00000601) (CSTV
Agreement – same as Exhibit 3028)

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Exhibit 2134 (CUSA_NCAA00162321 – CUSA_NCAA00162352) (CSTV
Agreement II)

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Exhibit 2213 (CUSA_NCAA00000509 - CUSA_NCAA000000520) (CBSC
Rights Agreement Extension Term Sheet - same as Exhibit 3186)

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Exhibit 2226 (CUSA_NCAA00000823 - CUSA_NCAA00000835) (Fox Binding
Term Sheet – same as Exhibit 3207)

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These documents contain highly sensitive commercial and proprietary information and
trade secrets, and most include confidentiality provisions.

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CUSA promptly notified Plaintiffs and the NCAA that it would not consent to the use of

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these documents in open court and explained its intention to seek an order of the Court sealing the

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documents. See Stipulated Protective Order, para. 13. CUSA also conferred with Plaintiffs and

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the NCAA regarding the sealing of these documents. Counsel for NCAA consented to the relief

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requested in this Motion, but CUSA was unable to reach an agreement with Antitrust Plaintiffs.

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See Declaration of Leane K. Capps (attached). Copies of the exhibits at issue are provisionally

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filed under seal in connection with this motion.

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Argument
Court records may be sealed where such records are traditionally kept secret for

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“compelling reasons.” Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1178 (9th

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Cir. 2006). Compelling reasons for sealing records “exist when such court files might have

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become a vehicle for improper purposes, such as the use of records to gratify private spite,

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promote public scandal, circulate libelous statements, or release trade secrets.” Id. at 1179
NON-PARTY CONFERENCE USA, INC.’S ADMINISTRATIVE MOTION TO SEAL CONFIDENTIAL TRIAL EXHIBITS
Case No. 09-cv-3329-CW

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(internal quotation marks omitted). A party’s motion to seal will be granted where the party

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presents “‘articulable facts’ identifying the interests favoring continued secrecy and … show[s]

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that these specific interests … outweigh the public interest in understanding the judicial

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process.” Id. at 1181 (internal citations and quotations omitted).

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The Ninth Circuit and the Northern District of California have sealed records of licensing

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agreements where the agreements are trade secrets. In re Electronic Arts, 298 Fed. Appx. 568,

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569 (9th Cir. 2008); Powertech Tech., Inc. v. Tessera, Inc., 2012 U.S. Dist. LEXIS 75831, at *4

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(N.D. Cal. May 31, 2012). A trade secret includes “any formula, pattern, device, or compilation

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of information which is used in one’s business, and which gives him an opportunity to obtain an

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advantage over competitors who do not know or use it.” Restatement of Torts § 757, cmt. b;

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Clark v. Bunker, 453 F.2d 1006, 1009 (9th Cir. 1972). Trade secrets also include “a detailed
plan for the creation, promotion, financing, and sale of contracts.” Clark, 453 F.2d at 1009.

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Compelling reasons to seal documents, including licensing agreements, also exist where

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disclosure of the documents could negatively impact a business’s competitiveness and

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profitability. Triquint Semiconductor, Inc. v. Avago Techs. Ltd., 2011 U.S. Dist. LEXIS 120627,

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at *8-9 (D. Ariz. Oct. 17, 2011) (sealing a “Draft Patent Cross License Agreement”); see also In
re Adobe Systems, Inc. Sec. Litigation, 141 F.R.D. 155, 159-63 (N.D. Cal. 1992); Bauer Bros.

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LLC v. Nike, Inc., No. 09cv500–WQH–BGS, 2012 WL 1899838, at *3-4 (S.D. Cal. May 24,

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2012).

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irrelevant or only tangentially related to the merits of the case, the public’s need for access is

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diminished. See Nursing Home Pension Fund v. Oracle Corp., 2007 U.S. Dist. LEXIS 84000

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(N.D. Cal. Oct. 31, 2007), at *14.

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And in instances like the present, where the commercially-sensitive information is

Here, the agreements that Antitrust Plaintiffs and the NCAA intend to use as exhibits at

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trial contain just the sort of commercially-sensitive information that provides a compelling

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NON-PARTY CONFERENCE USA, INC.’S ADMINISTRATIVE MOTION TO SEAL CONFIDENTIAL TRIAL EXHIBITS
Case No. 09-cv-3329-CW

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justification for sealing documents.

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declarations of Britton Banowsky and Karen Brodkin, public disclosure of these agreements,

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As explained in more detail in the accompanying

which were entered into confidentially between entities that are not parties to this litigation,

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would result in significant financial and competitive harm to CUSA. In particular, the broadcast

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agreements contain highly confidential financial information, which is protected from disclosure

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by confidentiality agreements. This confidential information includes, among other things, the

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terms and amount of payment to CUSA in exchange for the assignment of its member schools’

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rights to broadcast certain intercollegiate athletic contests. See § 6 of Exs. 2133, 2134, and 3028;

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§ 9 of Ex. 2213 and 3186; § 6 of 2226 and 3207. Disclosure of this information would harm

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CUSA’s bargaining position in future negotiations with broadcasters and also give an unfair

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competitive advantage to CUSA’s competitors. Moreover, release of the broadcast partners’
contracts could harm their ability to compete with their competitors. See Dec. of Karen Brodkin.

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In addition to the financial terms, the broadcast agreements also contain proprietary and

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trade-secret information regarding CUSA’s and its broadcast partners’ game selection

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procedures (§§ 4 and 7 of Exs. 2133, 2134, and 3028; §§ 4 and 5 of Exs. 2213 and 3186; §§ 3(a),

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3(d), and 4 of Exs. 2226 and 3207), highly sensitive first negotiation/first refusal rights
provisions (§§ 5(d) and 5(f) of Exs. 2133, 2134, and 3028; §§ 2 and 3 of Exs. 2213 and 3186; §2

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of Exs. 2226 and 3207), as well as proprietary information regarding conference composition ((§

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9(i) of Exs. 2133, 2134, and 3028; §10 of Exs. 2213 and 318; § 8 of Exs. 2226 and 3207),

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distribution requirements (§§ 4(b), 4(c), 4(d) and 4(e) of Exs. 2133, 2134, and 3028; §§ 4(A) and

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4(B) of Exs. 2213 and 3186; §3(c) of Exs. 2226 and 3207), provisions regarding minimum game

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requirements (§ 6(c)-(e) of Exs. 2226 and 3207), as well as provisions regarding scheduling of

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certain opponents (§ 9(f) of Exs. 2133, 2134, and 3028).

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NON-PARTY CONFERENCE USA, INC.’S ADMINISTRATIVE MOTION TO SEAL CONFIDENTIAL TRIAL EXHIBITS
Case No. 09-cv-3329-CW

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All of these provisions, and others contained in the agreements, were negotiated in

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confidence between non-parties to this litigation. The proprietary and trade secret information

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contained in these broadcast agreements and in the Bowl Championship Series Agreement, as is

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evidenced in the accompanying declarations, is highly sensitive and public disclosure of that

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information would allow CUSA’s competitors an unfair competitive advantage in future

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negotiations with broadcasters and in the scheduling of games – all to CUSA’s financial and

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competitive detriment.

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confidentiality clauses which prohibit the disclosure of the terms of the contracts to third parties

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(Exs. 2133, 2134, 3028 at §8(h); Exs. 2226 and 3207 at §14), and the information contained in

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Further, Exhibits 2133, 2134, 2226, 3028, and 3207 contain

these agreements is, at best, only tangentially related to the merits of this litigation. 1

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Conclusion

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For the reasons described above and in the accompanying declarations, CUSA faces

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significant competitive and financial harm should the documents described above be disclosed to

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the public at trial. Therefore, CUSA respectfully requests that this Court seal Exhibits 3028,

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3185, 3186, 3207, 2133, 2134, 2213, 2226 at trial, admit the exhibits for in camera inspection

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only and not in open court, and close the courtroom for any testimony concerning the exhibits.

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Respectfully submitted,

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POLSINELLI LLP

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By:

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/s/ Leane K. Capps
LEANE K. CAPPS (Pro Hac)
WESLEY D. HURST (CA #127564)
Polsinelli LLP
Attorneys for Non-Party Conference USA, Inc.

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The limited relevancy and highly confidential nature of these agreements is evidenced
by Magistrate Cousins’ ruling, early in this litigation, that the requested broadcast agreements
contained “highly confidential commercial information” and therefore the non-parties at issue
were only required to produce the portions that mention rights of publicity, names, images, or
likenesses. Dkt. No. 64 at p. 8-9; see also Dkt. No. 75.
NON-PARTY CONFERENCE USA, INC.’S ADMINISTRATIVE MOTION TO SEAL CONFIDENTIAL TRIAL EXHIBITS
Case No. 09-cv-3329-CW

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CERTIFICATE OF SERVICE

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I hereby certify that on June 4, 2014, I electronically filed the foregoing document with the
Clerk of the Court using the CM/ECF system which will send notification to the e-mail addresses
registered.

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By: /s/ Leane K. Capps
LEANE K. CAPPS (Pro Hac)
WESLEY D. HURST (CA #127564)
Polsinelli LLP
Attorneys for Non-Party Conference USA, Inc.