Blaszkowski et al v. Mars Inc. et al

Filing 407

NOTICE by All Plaintiffs of Filing Transcript of Hearing Held January 25, 2008 (Attachments: # 1 Transcript)(MacIvor, Catherine)

Blaszkowski et al v. Mars Inc. et al

Doc. 407 Att. 1
1

1 2 3 4 5 6 7

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION Case 07-21221-CIV-ALTONAGA RENEE BLASZKOWSKI, AMY HOLLUB and PATRICIA DAVIS, individually and on behalf of others similarly situated, Plaintiffs,

8 MIAMI, FLORIDA 9 vs. 10 JANUARY 25, 2008 11 12 13 14 15 16 APPEARANCES, 17 FOR THE PLAINTIFFS: 18 19 20 21 22 23 24 25
TOTAL ACCESS COURTROOM REALTIME TRANSCRIPTION January 25, 2008

MARS, INC., et al., Defendants. _______________________________________________________________ TRANSCRIPT OF MOTION HEARING BEFORE THE CECILIA M. ALTONAGA, UNITED STATES DISTRICT JUDGE

CATHERINE J. MacIVOR, ESQ. BJORG EIKELAND, ESQ. AMANDA SAMPLE, ESQ. Maltzman Foreman, P.A. One Biscayne Tower 2 South Biscayne Boulevard, Ste. 2300 Miami, FL 33131 - 305.358.6555 Email: [e-mail] [e-mail]

Dockets.Justia.com

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17

2 FOR DEFENDANTS NEW ALBERTSON'S & ALBERTSON'S, LLC: CRAIG P. KALIL, ESQ. Aballi Milne Kalil & Escagedo SunTrust International Center 1 SE 3rd Avenue, Ste. 2250 Miami, FL 33131 - 305.373.6600 Email: [e-mail] FOR DEFENDANT KROGER: JAMES K. REUSS, ESQ. Lane Alton & Horst, LLC Two Miranova Place, Ste. 500 Columbus, OH 43215 - 614.233.4719 Email: [e-mail] C. RICHARD FULMER, JR., ESQ. Fulmer, LeRoy, Albee, Baumann & Glass, PLC 2866 East Oakland Park Boulevard Fort Lauderdale, FL 33306 954.707.4430 Email: [e-mail] FOR DEFENDANT PROCTOR AND GAMBLE: ALAN G. GREER, ESQ. Richman Greer, P.A. 201 S. Biscayne Boulevard, Ste. 1000 Miami, FL 33131 - 305.373.4000 Email: [e-mail]

18 19 FOR DEFENDANTS TARGET, PETCO, WAL-MART, PETSMART: 20 BARBARA LITTEN, ESQ. Squires, Sanders & Dempsey, LLP 21 1900 Phillips Point West 777 S. Flagler Drive, Ste. 1900 22 West Palm Beach, FL 33401 561.650.7200 23 Email: [e-mail] 24 25 3
FOR NESTLE USA: CAROL ANN LICKO, ESQ. Hogan & Hartson 1111 Brickell Avenue, Ste. 1900 Miami, FL 33131 - 305.459.6500 Email: [e-mail] CRAIG A. HOOVER, ESQ. Hogan & Hartson 555 13th Street, NW Washington, D.C. 20004 - 202.637.5600 Email: [e-mail] FOR DEFENDANT NUTRO: GAIL E. LEES, ESQ. WILLIAM E. WEGNER, ESQ. Gibson Dunn & Crutcher, LLP 333 South Grand Avenue Los Angeles, CA 90071 - 213.229.7000 Email: [e-mail] ADRIANA RIVIERE-BADELL, ESQ. Hunton & Williams, LLP 1111 Brickell Avenue, Ste. 2500 Miami, FL 33131 [e-mail] Email: [e-mail]

1 2 FOR PET SUPPLIES PLUS: 3 CARLOS B. SALUP, ESQ. Patino & Associates, PA 4 225 Alcazar Avenue Coral Gables, FL 33134 - 305.443.6163 5 Email: [e-mail] 6 FOR DEFENDANT DEL MONTE: 7 RICHARD FAMA, ESQ. 8 Cozen O'Connor 45 Broadway 9 New York, NY 10006 - 212.509.9400 Email: [e-mail] 10 11 FOR DEFENDANTS MARS & MARS PETCARE U.S.: 12 PATRICK J. HOULIHAN, ESQ. Williams & Connolly, LLP 13 725 Twelfth Street, NW Washington, D.C. 20005 - 202.434.5238 14 Email: [e-mail] 15 FOR DEFENDANT PET SUPERMARKET: 16 MARIA KAYANAN, ESQ. 17 Kubicki Draper 25 W. Flagler Street, Penthouse 18 Miami, FL 33130 - 305.982.6708 Email: [e-mail] 19 FOR DEFENDANT MENU FOODS: 20 ALEXANDER SHAKNES, ESQ. 21 LONNIE L. SIMPSON, ESQ. DLA Piper, LLP 22 1251 Avenue of the Americas New York, NY 10020 23 Emails: [e-mail] [e-mail] 24 25

4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15

16 17 FOR DEFENDANTS COLGATE & HILL'S PET NUTRITION: 18 JAMES D. ARDEN, ESQ. Sidley Austin, LLP 19 787 Seventh Avenue New York, NY 10019 - 212.839.5300 20 [e-mail] 21 ANA CRAIG, ESQ. Carlton Fields 22 100 SE 2nd Street, Ste. 4000 P.O. Box 019101 23 Miami, FL 33131 - 305.530.0050 24 25

1 2 REPORTED BY: 3 BARBARA MEDINA, RPR-CM Official United States Court Reporter 4 Federal Courthouse Square, Ste. 404 301 North Miami Avenue 5 Miami, FL 33128-7792 305.523.5518 (Fax) 305.523.5519 6 Email: [e-mail] 7 TABLE OF CONTENTS 8 Page 9 Reporter's Certificate ..................................... 40 10 INDEX TO EXHIBITS 11 Exhibits Marked for Received Identification in Evidence 12 Description Page Line Page Line 13 14 CITATION INDEX 15 Page Meier ...................................................... 33 16 Steel ...................................................... 27 17 Tecre ...................................................... 27 18 19 SIDEBAR CONFERENCE INDEX 20 Descriptions Page 21 ADMINISTRATIVE CONVENTIONS: 22 When counsel does not identify themselves each time they 23 address the Court during a telephone conference, the 24 industry-standard speaker identification is indicated by 25 chevrons, i.e., >>>:

5

TOTAL ACCESS COURTROOM REALTIME TRANSCRIPTION January 25, 2008 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

THE COURT: Renee Blaszkowski. Good morning. Perhaps you could all just state your appearance for the record so the record is clear as to who is present for the hearing. I know I have a sign-in sheet. I don't know if others have arrived. We'll hear from the plaintiff first. MS. MacIVOR: Catherine MacIvor, for the plaintiffs, with Bjorg Eikeland and Amanda Sample. MR. REUSS: James Reuss, Your Honor, for defendant, Kroger. MR. FULMER: Rick Fulmer, co-counsel with Mr. Reuss. MS. LICKO: Carol Licko, Hogan & Hartson, for Nestle. MS. LEES: Gail Lees, Gibson Dunn & Crutcher, for defendant, Nutro. THE COURT: Anyone else wish to state your appearance? MR. KALIL: Good morning, Your Honor. Craig Kalil, on behalf of New Albertson's and Albertson's, LLC. MR. HOOVER: Craig Hoover, from Hogan & Hartson, also for Nestle Purina. MR. GREER: Alan Greer, Richman Greer, for Proctor & Gamble and Iams MS. LITTEN: Barbara Litten, Squires, Sanders & Dempsey, on behalf of Target, Wal-Mart, Petsmart and Petco. MS. CRAIG: Ana Craig, from Carlton Fields, on behalf of Colgate.

6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

and since we had you all here. It would be difficult to get everyone gathered together once more. I reviewed the papers, the opposition, the memorandum that you have filed. I'll hear any additional argument you would like to present today on the motion for leave to amend. Ms. MacIvor. MS. MacIVOR: Is it all right -THE COURT: You may remain seated. Just get the microphone so it gets closer to you. That's fine. MS. MacIVOR: Your Honor, I tried within a short period of time to respond to the defendants' allegations, but the reasons are set forth in the motion. It was done in good faith, not with the intent to delay. It was based upon a number of things. The plaintiffs feel that this case has been delayed not because of the plaintiffs' conduct or because of one prior amendment, one motion for leave to amend that was done before, but because of a three month period of time that we've been litigating personal jurisdiction discovery. The amendment was done -- first of all, there was a deadline coming up that was set by the Court. We needed to meet that. Certain parties needed to be added and dropped. As discussed in open court in December, we were looking at ways in which to try to cut down the amount of litigation to get the case more quickly to the merits. I

8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

MR. ARDEN: James Arden, from Sidley Austin, for Colgate and Hill's Pet Nutrition. MR. FAMA: Richard Fama, from the law firm of Cozen O'Connor, for Del Monte Foods Co. MR. SALUP: Good morning, Your Honor. Carlos Salup, on behalf of Pet Supplies Plus/USA. MR. WEGNER: Good morning, Your Honor. Bill Wegner, Gibson Dunn & Crutcher, for Nutro Products. MS. KAYANAN: Maria Kayanan, Kubicki Draper, for Pet Supermarket. MS. RIVIERE-BADELL: Adriana Riviere, Hunton & Williams, for Nutro Products. MR. HOULIHAN: Patrick Houlihan, from Williams & Connolly, for Mars, Incorporated and Mars Petcare U.S. MR. SIMPSON: Good morning, Your Honor. Lonnie Simpson, on behalf of Menu Foods. MR. SHAKNES: Good morning. Alex Shaknes, DLA Piper, for Menu Foods. THE COURT: I'm sorry. Could you repeat that? MR. SHAKNES: Alex Shaknes, DLA Piper, for Menu Foods. THE COURT: Good morning. We have three matters to address. The first is the motion for leave to amend, and, Ms. MacIvor I did receive your reply. I know you had requested that it not be heard today and I thought it best to address it today to keep the case moving

7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

mentioned that in December when I was saying it was a great concern to the plaintiffs that it was taking so long. Since then, interestingly enough, New Albertson's has dropped their personal jurisdiction claim. Another defendant has dropped their personal jurisdiction claim I've been told orally. It has not a matter of record yet. If we had gone forward, I think more defendants would have dropped their claims or we would have prevailed. As I'm sure Your Honor has read from the papers, that's the plaintiffs' position. We decided rather than spend an enormous amount of time, time effort, energy and money as we did litigating with New Albertson's and Pet Supplies Plus for three months, we decided we would amend the Complaint, we would drop certain parties to try to get the case forward. We were amending. We added certain plaintiffs who could no longer participate in the case. We dropped certain defendants. We also at that time, since we were amending, added certain other jurisdictional claims based on the arguments in December. We specified the allegations, even though we didn't think we had to. We added subject matter claims the defendants have been saying they needed because we were amending and this was our last opportunity to amend. We still didn't think we needed to do that because that is more the subject of discovery. We've done that, and

9

January 25, 2008 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

still the defendants complain. Now they're complaining that "Oh, my God. We've done it." Second of all, I included in the reply -- and I hope Your Honor -- I couldn't hear Your Honor. I'm sorry. You're very soft-spoken -- I did include a chart on page 4 of the supply that shows from the defendants' own table of contents that the only two things that were added, except for the things that we dropped in the last amendment, were two claims that we did add. So, the defendants are also claiming that, you know, it will be burdensome on them to do it. We have dropped parties. We have given them the information that they've wanted. We feel their claims are absolutely invalid, that their objections are not worthy of denying this motion. The plaintiffs are proceeding in good faith and, in particular, the claim at the end of the defendants' motion that this Court, if it grants leave to amend, should, without considering any other factor, automatically deny -- excuse me -- grant with prejudice a motion to dismiss and give the plaintiffs no further leave to amend is urging this Court to commit error, and that's what the plaintiffs will say now and save the rest for rebuttal to the defendants. THE COURT: Thank you very much. Ms. Licko. MS. LICKO: Thank you very much, Your Honor.

10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

At that time the defendants did not oppose that motion. It was an unopposed motion. We announced at that time, as part of our good faith conferral, that that was it, that, you know, given the fact we spent the time on the motion to dismiss, she had the opportunity, we would not oppose that one, but that defense counsel would oppose any further amendment of the Complaint. In the motion that the plaintiffs' counsel filed with the Court, she was very clear that they did all of those things they felt were objectionable, notwithstanding the fact that she represented in that pleading to the Court that they believed that even at that time the first Amended Complaint was completely adequate and would have withstood, based on what they claim was 11th Circuit precedent, would have withstood our motion to dismiss. The Court, based on those representations by the plaintiffs' counsel at the time, granted the unopposed motion to amend and the defense counsel did then go back and we did file another motion to dismiss. In December we were here again and the Court offered an opportunity to the plaintiffs to amend because at that time they were arguing jurisdictional discovery. Plaintiffs came back and wanted to narrow the scope of discovery. Narrowing the scope of discovery was with respect to the Second Amended Complaint. The fact that you started out

12

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Carol Licko, from Hogan & Hartson, here on behalf of Nestlé, but also taking the lead on behalf of the opposition on the motion for leave to amend. Your Honor, the defendants are anxious to get this case moving along as well. When Your Honor held the first initial status conference in this case, she set a scheduling order that indicated she wanted to give the parties the benefit of her opinion, knowing that there would be a motion to dismiss filed on the initial Complaint. At that time the plaintiffs' counsel announced she would be amending her Complaint. Trial schedule came out. By November of '07th, this Court clearly indicated that it wanted to have this case set up and teed and end amendment to pleadings and end of joinder of parties. Defendants have been traveling on that in good faith, trying to file their motion to dismiss, having to have it teed up before this Court so that plaintiffs could have the benefit of this Court's opinion on that. Plaintiffs have just now again amended their Complaint. They filed for leave to amend on the very eve of this Court's deadline of November the 16th, and at that time the plaintiffs' counsel said that they did everything that they thought they needed to do to address all of the arguments that have been raised in the motion to dismiss by the defendants. They were very clear on that.

11

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

with seven jurisdictional defendants and that we're now down to only one has nothing to do with the motion for leave to amend. In that respect, plaintiffs' counsel is really arguing apples and oranges here. What has happened is that the jurisdictional defendants, five of them have been dismissed voluntarily by plaintiffs' counsel. She no longer wants to put up the fight with respect to the jurisdictional defendants. Only two, New Albertson's and Pet Supplies, Inc., have decided based on the Second Amended Complaint, which is now, you know, before the Court that they no longer wish to continue that battle. So, it has nothing to do with the motion to amend, and certainly nothing to do with judicial economy or trying to move this case forward. The defendants in good faith have filed a very substantive motion to dismiss. We've looked at the motion to amend. We are not alleging bad faith here. We do believe this is another delay tactic because, once again, on the eve of the Court's deadline for deadlines for motions to amend pleadings or to join parties the plaintiffs have again, on the very leave eve of that, notwithstanding what they said in December that they were moving forward on the Second Amended Complaint, have decided "No, we need to again amend the Complaint." They're saying the amendments are not substantive. Your Honor, if we need to, we will certainly show you they are. We have run red-lines of their current Third Amended Complaint

13

January 25, 2008 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

based on the Second Amended Complaint. They've now substantively added a defendants' class. So, yeah, not only do you have a putative plaintiffs' class, but also a putative defendants' class. What we're trying to get resolution. We're trying to go back to where we are. Your Honor said that at the appropriate time on a motion to dismiss, once they had the opportunity to respond -- they've never responded to the substance of the motion to dismiss. They have never shown this Court the 11th Circuit authority they claim they've been relying upon with the allegations of their Complaint. We propose, Your Honor, that -- and, again, we're not saying this is with prejudice. We're saying at this particular time the most expeditious way to advance the progress of this case is to force the plaintiffs to respond to that motion to dismiss. Let's keep a briefing schedule. Let's get it teed up. Let's get it before the Court and let's have the plaintiffs have the benefit of this Court's opinion on that motion to dismiss the Second Amended Complaint. We propose, Your Honor, that's the most expeditious way of doing this. We'd be glad at the appropriate time to explain to the Court how that would work into the jurisdictional discovery that is still ongoing with respect to not seven defendants now, but only one. We think that could be accomplished in a fairly

14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

motion for leave to amend at this time and order that they respond to the motion to dismiss in whatever time they feel is appropriate and amenable to the Court. Thank you, Your Honor. THE COURT: Thank you very much. Ms. MacIvor. MS. MacIVOR: Brief response. I don't think you can parse what has taken place over the last three months from why we have moved for leave to amend. It has taken three months, and we still haven't had one deposition. The reason why we're down to one defendant is because of the plaintiffs. The plaintiffs could have left all of them in and believe they would have prevailed he over each and every one of them. In our reply we detail and in the motion and the other court papers we've filed, each and every one of these defendants, once we started getting into it, found out, you know, through various reasons, through our own investigation and sometimes through discussions with counsel, we found that the affidavits filed with the Court in the defendants' motion to dismiss, by the way, were either not forthcoming or were false. That has derailed this litigation for three months. Contrary to Ms. Licko's representations, that has everything to do with why this amendment was done, not to mention the results of a deadline to do it that the Court set.

16

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

expeditious time and still allow this Court to proceed with what it has said it wanted to do all the time, which is to have closure on the motions to dismiss such that an order could be issued on that Second Amended Complaint. I'd be happy to respond to any questions the Court may have, but we propose, Your Honor, what the Court do at this time, at this time, is to deny the motion to amend, force them to respond substantively. We promise we will do our reply within 14 days. We'll do it expeditiously. We're prepared to come here for oral argument and have it teed up so we can hear the arguments back and forth, have appropriate due process for plaintiffs and plaintiffs' counsel, and allow this to be teed up appropriately for the Court. I don't hear plaintiffs' counsel stipulating or representing to this Court that they're waiving their right to have this Court's opinion on the Amended Complaint. What I believe they're trying to do here is to simply avoid that Court's opinion. That's what we're trying to oppose, Your Honor. We want to get this stopped. It's very expensive. It's very burdensome to the defendants' counsel. What we're asking for is our day in court. We're asking for a decision from this Court to say "Enough is enough." Let's get it teed up and have a decision from the Court. We respectfully request, Your Honor, that you deny the

15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

That has been narrowed. Half of the motion to dismiss is jurisdictional. The reason the plaintiffs did what they did was to try to narrow it, to catapult past some of those issues such as subject matter jurisdiction, personal jurisdiction. Contrary to Ms. Licko's representations, a conversation that I had with Pet Supplies Plus was that they were not going forward based upon more specific allegations that were in the proposed Third Amended Complaint. Why? Because they had licensing issues and other things that they told me about that, of course, were not in the affidavits. The plaintiffs have been chasing their tail, running around trying to get discovery from the defendants for three months while many of them have known that they were subject to the Court's jurisdiction. That is what has caused delay. The defendants have repeatedly filed things that were at least not forthcoming. That has caused the plaintiffs undue burden and enormous expense. We've been in here on many motions. We even had New Albertson's in here saying that, you know, "We shouldn't have been here. There is no personal jurisdiction." Now they've withdrawn it, after the plaintiffs spent an inordinate amount of time speaking with them about the scope of discovery. How they couldn't know they had business contacts in their own company is beyond the plaintiffs' comprehension. At this point in time, the case is stayed pending

17

January 25, 2008 5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

jurisdictional discovery which New Albertson's -- excuse me -Kroger has given us deposition dates, which will be the end of January. Because there was a deadline to amend, the plaintiffs took a look and said "We have to amend. We have to add and drop these parties anyway. There are certain plaintiffs we have to drop. Let's go ahead and amend to give them everything they want for subject matter jurisdiction." It is incomprehensible why the defendants would oppose giving them what they claim that they need. The plaintiffs don't think they need to do it, but they have still yet to say what is the harm. If anything, we have reduced what the Court would have to look at. There's no prejudice on the other side. They're now complaining that the plaintiffs are giving them exactly what they have been complaining about by narrowing the issues to be addressed before the Court. There is absolutely no rational basis that the defendants have given that would support denying this leave to amend. THE COURT: Thank you. Is there anything else from the defendants on the motion? MS. LICKO: No, Your Honor. THE COURT: I can appreciate the costs and the burdens

18

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

get this case to where I want it to be, which is beyond this motion practice addressing the infirmities with the plaintiffs' causes of action and the claims pled and the defendants before the Court. So, on this one, I agree with the plaintiffs' assessment and I don't believe that what I'm seeing is dilatory conduct. Quite the contrary, I'm seeing an effort to streamline, get past issues that are just going to cause delay and narrow down to those issues where I really need to give you my decision on the causes of action. Now, I also understand that the plaintiffs have never responded to any of the arguments addressed as to why the counts fail under 12(b)(6). So the defendants are now going to go back to the drawing board, take their first motion to dismiss, second motion to dismiss, retool that to give me a third, still without having any benefit of knowing what are the arguments that Ms. MacIvor will present in opposition, although I dare say because you have prepared the motions and you've researched the law, you can fairly anticipate what the response will be as to each of the counts in the pleading. And I appreciate this table giving me the comparison between the two. I think what's going to happen now, you're all going to go back and you're all going to do a cut and paste and take out portions of the motion to dismiss and it will be not quite as lengthy.

20

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

to both sides in the course this litigation has taken to date. I agree with Ms. MacIvor that in seeking leave to amend now before the parties fully brief the motion and resolve or don't resolve the personal jurisdictional issues, that she has simplified matters for me certainly. I very often will ask parties at an oral argument on a motion to dismiss a pleading, "What do you concede? What arguments are good and what counts do you concede you need to amend?" so I don't have to spend additional time or effort stating the obvious. Well, if a litigant recognizes the obvious and takes those issues away from the Court, that's something I, frankly, appreciate. If plaintiffs have seen, "All right. Here are the arguments made as to personal jurisdiction. We can go down that road. We can litigate this for months. We can get the Court to take a fully briefed motion, issue a written decision and maybe sometime in April we'll be talking about our next amended pleading." If plaintiffs can look at that -- and I'm sure the defendants can appreciate that as well -- and say "You know what? Let's short-circuit that. Let's concede by coming forward with an amended pleading," I'm not sure I see that as dilatory. I tend to agree with Ms. MacIvor. I see that as trying to advance the case, trying to cut down on the work for both the lawyers and the Court and

19

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

We're still going to have, I think, the second half of it which challenges each count under 12(b)(6) and, perhaps, something additional as to those matters that go beyond dropping defendants because of jurisdictional issues, the defendant class and so forth. So, I will grant the motion for leave to amend. I was sitting here and as I was listening to the arguments, I was thinking should I require the plaintiffs to give the defendants the benefit of what opposition they would have to all of these arguments that you've stated as to each count, but I'm not sure that accomplishes much because, as I said before, I think you, lawyers for the defendants, have anticipated already what will be coming in opposition to the 12(b)(6) arguments. Therefore, the Third Amended Complaint is deemed filed as of today. I will expect the motion to dismiss it to be filed within the time permitted by the rules and I will not give greater time because, as I say, what will happen is you'll sit back and take this draft which has been revised twice and revise it yet a third time by deleting most of the first section which dealt with challenges to personal jurisdiction and, perhaps, add a section or two with regard to the new adjustments made in the pleading. So, that takes us to Kroger's issues with respect to jurisdictional discovery. Why don't we hear about that?

21

January 25, 2008 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

I think this is the only jurisdictional defendant remaining. Is that right? MR. REUSS: Yes, Your Honor. Your Honor, Jim Reuss, with the law firm of Lane Alton & Horst, on behalf of Kroger. I think it would be helpful to begin by just bringing us up to speed on what has happened since we were last before you, Your Honor, on December 19th and to take just a brief step back from that. Your Honor granted jurisdictional discovery, I believe, the week before at a hearing on December the 12th. Your Honor had before you the discovery request to New Albertson's at that time. We anticipated that we would receive similar discovery requests. Your Honor expressed the hope that those would be narrowed down as we anticipated that all of the then jurisdictional defendants would be served with their own 30(b)(6)s. Three days after that hearing, Kroger received its first service of a 30(b)(6) and this request now had some 74 topics, more than twice those directed at New Albertson's, and some 84 document requests. Now, we rolled up our sleeves, Your Honor, and started working on those. We've been attentive to the fact those discovery requests would likely mirror a number of the ones that had been previously sent to New Albertson's.

22

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

requests sent to one or more of the defendants, major subject areas where we had some issues that we wanted to resolve in terms of scope. I have to say little progress was made in that meeting. But the good news is that we followed that meeting up, and now I'm speaking of Kroger, because over the next few weeks, a number of these defendants dropped out, either by being dismissed or, in the case of at least one defendant, withdrawing its jurisdictional defense. But I think it's important to raise this in the context of the arguments the Court has heard about delay and dilatory conduct. We initiated, that is to say I initiated, the process of a telephone conference meet-and-confer with plaintiffs' counsel on January 11th. That was cut short when she told me at that time that she had a more immediate concern and that was that that day she needed to file a motion for leave to file this yet another Amended Complaint. So, we had a lot of housekeeping matters that consumed us that day. I then initiated the rescheduling of that meet-and-confer and we spoke, I believe, the next week, if I'm not mistaken. Your Honor, during the course of that conference, we reviewed every single one of the 84 document requests that had been sent to Kroger. We sat down -- it was a multi-hour process -- and we went through them one by one.

24

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

We were back before you the next week and the Court, again, directed the parties to meet and confer in good faith to have some give-and-take and to try to resolve this so that we could move the case along. I want to bring us forward from that point. On December 21st, two days after that hearing, Your Honor, we corresponded with plaintiffs' counsel and suggested a meet-and-confer session with her in person with all of the jurisdictional defendants. We had noticed, as we all received our 30(b)(6) notices, that there was a high degree of commonalty between all of the discovery requests and we thought that the most appropriate way to begin the process of talking about scope, as the Court had directed us on the 19th, was to have such a meet-and-confer session. We didn't hear from plaintiffs' counsel for several days. We emailed her again on the 26th of December, and we really didn't get an agreement to have this meeting until around January 3rd, as I recall, January 2nd or January 3rd. Part of that delay was caused by counsel's schedule. She was traveling. But, in any event, we did arrange a conference on January the 7th, and we met in her office and we had scoped out probably 8 or 9 or 10 major subject areas, which we thought was the most efficient way to go about it. Any one subject area might encompass 10 or 12 written discovery

23

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

I must say, Your Honor, I think Ms. MacIvor and I made very good progress. We resolved most of the discovery requests. We assured her that as to those discovery requests where we would be required to produce documents, we'd find the individuals in her Exhibit A who would satisfy the topic characterizations or categories. The format of that conference, Your Honor, was like this: We'd go through the discovery requests and we'd say -I'll give an example. We have a custom sales, commercial sales operation in Florida. We believe it's a very, very small percentage of our overall revenue. Indeed, it is. But I understood from the Court's parameters that the Court had set and from looking at the law that she would be entitled to that. I would -- the format of this conference was that, you know, there would be maybe an issue with breadth, all the documents, as opposed to sufficient documents. There were some issues with duplication. But I have to acknowledge that we sat down and worked our way through those things and Ms. MacIvor would say "Well, really, what I'm after are these documents" or "I'm after documents that reflect revenue streams," for example. I would also be in a position because of having done my due diligence to get these documents organized, to say "Here's what we've got: We've got a guy in the income tax department that can address this issue which seems to

25

January 25, 2008 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

be called for. But, you know, literally read, your document request seems to ask for a stack of documents I can't believe you want." That process worked beautifully because we were both flexible and cooperative about the process. We really did resolve most of the issues. Now, we were left with the four issues that are raised in our motion and I'll simply rely upon the papers as far as the law goes. I want to make a comment on two things and I promise more good news at the end of my comments. The first thing is the temporal scope of discovery. It seems now from reviewing plaintiffs' opposition papers, they have conceded or agreed that the clock, in effect, stops running at the time of the filing of the Complaint, and we appreciate that concession. As to the beginning of the time period, you know, the case law is quite varied and some Courts -- we cited the Steel case and the Tecre case, but there are others -- some Courts start the clock running at the time the cause of action arose or, as the Courts characterize it, the time that the events underlying the Complaint took place. But it seems, Your Honor, that the common thread that runs through both parties' papers on this is that the period of time to be selected is a reasonable period of time and it's wholly subject to the discretion of the Court.

26

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

transactions, revenue generating interactive website transactions. Again, the same theory, I suppose, with respect to the custom sales, that it represents a revenue stream to Kroger from contact with Florida residents. Our objections to the website, that had been basically two swats. One, again, a number of the website questions also asked about subsidiaries and affiliates, and we stood pat on that and I think you've seen in our moving papers, we've given you that argument and we based some law on that. The other objection we have had -- and, again, it was supported by case law we cited in our papers, and I guess this is more of a more of a horizontal objection, so to speak -- we objected to producing documentation regarding noninteractive website activity, so that when, you know, people just access the website noninteractively -- I've been on the website in my hotel from Florida, accessing kroger.com -- probably adding to our jurisdiction when I did that -- we did object to that and we cited case law stating that's not relevant to the jurisdiction analysis. At this juncture, Your Honor, I'd be willing to concede away that objection, and if we could have a concession from the plaintiffs or, barring that, I guess, a ruling from the Court on keeping the temporal period within those four years because this website documentation is somewhat burdensome.

28

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Here we have a situation different, I suppose, than a case that arises out of an occurrence or a specific event, an accident, for example, or a vehicular accident or something. Here the plaintiffs have some control over the period of time when the events underlying the Complaint took place, and that control is in the selection of the class period that they chose to allege. They could have alleged a one year class period or a two-year-class period or, for that matter, a seven year class period. They chose in this case to allege a four year class period and for those reasons, we would recommend the Court exercise its discretion by choosing the period of time that corresponds to the class period that they, themselves, have close chosen. Now, the good news I promised. One of the categories that we raise in our papers, and we give the Court law on this, is our website activities. There is a misstatement -- I hope it's an innocent one -- but there is a misstatement in plaintiffs' papers when they say "Kroger believes that all inquiry into Kroger's website should be foreclosed." I think I'm reading that as a quote. That's simply not true, and Ms. MacIvor knows that when we sat down for our, I think, very productive meet-and-confer telephone conference, we agreed to produce all documents relating to Kroger's interactive website

27

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

We haven't had a burdensome issue in this case. You'll note we haven't raised burdensomeness in our response because when we agreed upon a subject area of documents to be produced, I think we've worked fairly admirably in scoping that down appropriately. But if we could scope down the temporality, the temporal period, either by the Court's ruling or agreement with counsel, we'd be willing to drop our objection to the noninteractive website activity and produce documents responsive there. Now, we'll still stand on our objection on the subsidiaries and affiliates. Those are sort of interwoven into the website questions as well. By the way, we've footnoted the specific document requests that fall within the four areas that are referenced in our motion papers. If we were to get this concession, obviously, some of those footnoted discovery requests would drop out and we would supplement our motion papers to indicate which ones we'd agree to. And then I think we'll fight this on the motion to dismiss. We'll still argue, Your Honor, that noninteractive website activity is completely irrelevant to the jurisdictional analysis, but we won't block discovery on it and we'll fight that fight in connection with the motion to dismiss. And, by the way, this is not the first time we've taken this posture. We've been asked for documentation

29

January 25, 2008 8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

relating to registered agents and documentation relating to the filing of annual business reports, and we have case law that says that's not relevant. In fact, the consolidated case, the 11th Circuit case, says so. But it has not been a battle worth fighting and we'll fight that fight with the motion itself and we've agreed to produce documentation relating to those types of things. So, I guess to summarize, Your Honor, we had 84 document requests. We sat down and worked our way through the vast majority of them, the vast majority of the topics. We narrowed down and tried to focus for the Court's attention subject areas that remained. I came here today with four subject areas or four remaining issues and I hope by virtue of our concession here on the website, perhaps we can knock that down to simply two for the Court's consideration. Thank you, Your Honor. THE COURT: Thank you. Ms. MacIvor. MS. MacIVOR: I was just sitting here trying to think about the website issue. I'd certainly like to resolve that. I'm not sure if Mr. Reuss was indicating that I could limit it to four years for the website only, because I would be willing to do that, although I've never understood how it's burdensome. But I would like to discuss that with him, if

30

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

MS. MacIVOR: I believe that's the other issue, yes, Your Honor. As far as subsidiaries, as we discussed in our response, the Florida Statute itself talks about agency. Mr. Reuss's position is I need to make specific allegations. I can't make specific allegations. The cases I've cited from Florida don't require me to. I need some discovery in order to determine that from Mr. Reuss I think within a four year period that's there initially. I think the type of things I've asked for are relatively simple. I have asked for organizational charts and that sort of thing just so that I can determine initially if there is a high degree of inter-relationship, like the Meier case talks about. I don't want to look at thousands of documents. I want to see what the inter-relationship is with Tom Thumb that sells pet food, and if that's the case, then, you know, I would argue that personal jurisdiction should attach in Florida, and I think under the case law presented that I am entitled to look at that. So, I definitely think that I can't concede on subsidiaries and I know that Mr. Reuss is not going to. So I think we're going to need a ruling from the Court on that. THE COURT: Mr. Reuss, anything additional? MR. REUSS: I do agree with her on the last statement.
33

32

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

possible, if we could take a brief break, so that I understand it more fully. But I'm inclined to try to do that once I understand the overbreadth issue. THE COURT: I don't mean to interrupt your response, but in thinking about the four year issue versus the longer period of time that you request, why can't we go about it in two stages? In other words, do your discovery as to the four year time period and if you don't get anything there, then say "All right. Now let's go beyond it because I don't have enough here to respond to your motion to dismiss." But you may find enough information with the documents you receive as to the four year activity. MS. MacIVOR: I would agree to that, Your Honor. THE COURT: Sort of like a bifurcated "Let's do it in two steps," because if you get what you need, you may say "I don't need to go that far back right now." MS. MacIVOR: I agree. THE COURT: All right. And then that would address Mr. Reuss's position with respect to the noninteractive. He says "I have no problem giving you noninteractive even though I object to it, if we're limited to the four years." So, if we agree to limit everything to four years for now, giving you that opportunity to go beyond it, what else remains, the issue of the subsidiaries and the affiliates?

31

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

If we could go back to the bifurcated consideration of the temporality issue. Your Honor, we'll produce the noninteractive website documents going back to 2003. We can just kind of remove that, if that makes life easy by removing that from our overall argument on temporality. But I don't want a situation where we go through the process of producing available documents, counsel says that she's not satisfied and we go through the whole process again. I think I'd like to stand on our motion and get Your Honor's ruling one way or the other on the temporality issue. But with respect to the website stuff, just so we can remove that from further dispute, if counsel is willing to accept a search for noninteractive website material back to 2003, we'll undertake to do that search and we'll also agree to withdraw our objection to it as being noninteractive. Again, with all due respect, Your Honor, I'd prefer to have a ruling, just up or down, on temporality so as to all the other documents we'll know the period of time we're talking about. THE COURT: I'm not sure I'm in agreement to give you a ruling up or down because whatever the efforts are in-house, and with your assistance to get those documents and that information, if Ms. MacIvor -- I'm giving her a door to come back and say "I didn't find anything. I want to go back some

January 25, 2008 9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

more because you, Judge, limited me in scope and I think I might be able to find something for 2002." All it would mean would be duplicating whatever efforts and steps were taken to retrieve information. At that point, it's sort of "Okay. Now we do the same thing, but go back a year." So I'm not in agreement to say -- you're actually winning on the temporal argument, but you're winning with a caveat which is Ms. MacIvor can certainly come back to me and to you first, of course, and say "I'd like to go back a year or two." MR. REUSS: Thank you. THE COURT: And that takes care of that. The noninteractive websites will be produced as well, and I'm going to agree with the plaintiffs' position on their request to go into and explore the contacts of Kroger with subsidiaries and affiliates as it pertains to activities within the State of Florida. So the motion for protective order in that regard is denied. Is there anything else you need me to address on this motion or not? (No response.) THE COURT: No. Okay. MR. REUSS: Your Honor, again, I don't know whether

34

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

to be moving to extend to file their opposition and we're going to be right back where we are. So we would request to be given 20 days to respond to the Third Amended Complaint you deemed filed today. THE COURT: That's certainly reasonable. I will give you the 20 days, but let me address the point that you're forecasting for me. I will not be amenable to giving the plaintiffs an extended period of time to oppose the motion for a couple of reasons. The first of which you've had the motion for months now, and all we're going to see is the fine-tuning or, like I called it, a cut-and-paste. So, on your side, on the plaintiffs' side, you can actually be working right now in drafting the response in opposition because what you're going to see, in large part, as to the specific counts pleading fraud with particularity, Economic Loss Rule, all those arguments have been there for months. These are not new arguments, and perhaps you all can talk with Ms. Licko. I dare say you're not going to be dropping any of those arguments. They're all going to be there one more time. The jurisdictional issue will not be a basis for putting off a response in opposition. You will tell me, and we know right now that you can't oppose it yet, and so you will respond to everything but the jurisdictional issue and we'll

36

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

you are inclined to do it from the bench, but we do have a branch of the motion on the vendor supplier issue that remains unresolved. THE COURT: Any additional argument on that, because I will deny the motion as well on that issue. I would rather give the plaintiffs, who are trying to defend a jurisdictional motion, the information with which to defend it, rather than limit them so that that becomes an issue later on. Ms. Licko. MS. LICKO: Your Honor, the defendants would ask for 20 days to respond to the Complaint, and let me explain why. As you've heard, the jurisdictional discovery issue -well, first of all, let me explain that. It is very, very difficult to deal with one consolidated motion to dismiss with all the defendants we have. We make a very good faith effort to do that. It takes time to create a new draft, circulate it, to get consensus on everything, and the 10 days we would normally be allowed on a Amended Complaint would be insufficient. We would propose 20 days because based on what you've heard today, you'll get a consolidated motion to dismiss. It will include the jurisdictional allegations. The discovery they're talking about is going to take -- I have no idea, but it's going to take an extended period of time. They're going

35

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

hold that off. MS. MacIVOR: Okay. THE COURT: And you'll have as much time as you need on jurisdictional discovery and Kroger will be here. MS. MacIVOR: That's fine. THE COURT: All right. So that sort of gives the plaintiffs' side my preview, which is start drafting your opposition now -MS. MacIVOR: Fine. THE COURT: -- as they try to sit together or get together electronically to submit the third version of the consolidated motion to dismiss. MS. LICKO: Thank you, Your Honor. THE COURT: All right. Are there any other issues we should be addressing? I think the purpose for today was really to see where you all were with the jurisdictional discovery, and I see you have been very successful because we only have one remaining defendant with those issues and we have addressed that now already. I don't know if the other lawyers had any issues you wanted to address. (No response.) THE COURT: No? MS. LICKO: No, Your Honor. We're fine.

37

January 25, 2008 10

1 THE COURT: All right. 2 Well, I thank you all for coming in this morning. 3 Have a good weekend. 4 MS. LICKO: Thank you, Your Honor. 5 MS. MacIVOR: Thank you, Your Honor. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

38

1 CERTIFICATE 2 I hereby certify that the foregoing is an accurate 3 transcription of proceedings in the above-entitled matter. 4 5 ________________ ______________________________________ DATE BARBARA MEDINA 6 Official United States Court Reporter 301 North Miami Avenue, Suite 404 7 Miami, FL 33128-7792 305.523.5518 (Fax) 305.523.5519 8 Email: [e-mail] 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

39

January 25, 2008 11

40
A Aballi 2:3 able 34:2 abov e-entitled 39:3 absolutely 10:13 18:18 accept 33:13 access 28:14 accessing 28:16 accident 27:3,3 accomplished 14:25 accomplishes 21:11 accurate 39:2 acknowledge 25:17 action 20:3,10 26:19 activ ities 27:17 34:17 activ ity 28:14 29:9,21 31:12 add 10:9 18:5 21:22 added 8:22 9:16,19,21 10:7 14:2 adding 28:16 additional 8:4 19:9 21:3 32:24 35:4 address 5:23 7:22,25 11:23 25:25 31:19 34:21 36:6 37:22 addressed 18:17 20:12 37:19 addressing 20:2 37:15 adequate 12:13 adjustments 21:23 ADMINISTRATIVE 5:21 admirably 29:4 Adriana 3:13 7:11 adv ance 14:14 19:24 affidav its 16:20 17:10 affiliates 28:7 29:12 31:25 34:17 agency 32:4 agents 30:1 agree 19:2,23 20:5 29:18 31:13,17 31:23 32:25 33:15 34:15 agreed 26:13 27:24 29:3 30:6 agreement 23:18 29:7 33:21 34:7 [e-mail] 2:17 ahead 18:7 al 1:11 Alan 2:15 6:20 Albee 2:10 Albertson's 2:1,1 6:17,17 9:3,13 13:8 17:19 18:1 22:13,20,25 Alcazar 4:4 Alex 7:17,20 ALEXANDER 4:20 [e-mail] 4:23 allegations 8:11 9:20 14:11 17:7 32:5,6 35:23 allege 27:7,10 alleged 27:7 alleging 13:16 allow 15:1,12 allowed 35:19 Alton 2:7 22:4 ALTONAGA 1:14 Amanda 1:19 6:8 amenable 16:3 36:8 amend 7:23 8:5,17 9:14,23 10:17,20 11:3,20 12:18,21 13:2,11,16,18,22 15:7 16:1,9 18:4,5,7,20 19:2,9 21:6 amended 11:19 12:12,25 13:9,21,25 14:1,19 15:4,16 17:8 19:19,22 21:15 24:17 35:19 36:3 amending 9:16,18,23 11:11 amendment 8:16,20 10:8 11:13 12:7 16:24 amendments 13:23 Americas 4:22 amount 8:24 9:11 17:22 AMY 1:5 Ana 3:21 6:24 analysis 28:19 29:22 Angeles 3:11 ANN 3:2 announced 11:10 12:2 annual 30:2 anticipate 20:19 anticipated 21:13 22:13,15 anxious 11:4 anyway 18:6 appearance 6:2,15 APPEARANCES 1:16 apples 13:4 appreciate 18:25 19:13,20 20:21 26:15 appropriate 14:7,21 15:11 16:3 23:13 appropriately 15:13 29:5 April 19:18 Arden 3:18 7:1,1 area 23:25 29:3 areas 23:23 24:2 29:14 30:12,13 argue 29:20 32:18 arguing 12:22 13:3 argument 8:4 15:10 19:6 28:9 33:6 34:8 35:4 arguments 9:20 11:23 15:11 19:8,15 20:12,17 21:8,10,14 24:10 36:17 36:18,20 arises 27:2 ariv [e-mail] 3:15 arose 26:19 arrange 23:21 arriv ed 6:5 asked 28:7 29:25 32:10,11 asking 15:22,22 assessment 20:6 assistance 33:23 Associates 4:3 assured 25:3 attach 32:18 attention 30:11 attentiv e 22:23 Austin 3:18 7:1 authority 14:10 automatically 10:18 av ailable 33:7 Av enue 2:4 3:3,11,14,19 4:4,22 5:4 39:6 av oid 15:17 B B 4:3 back 12:18,23 14:6 15:11 20:14,23 21:19 22:9 23:1 31:16 33:1,4,14 33:25,25 34:6,9,10 36:2 bad 13:16 Barbara 2:20 5:3 6:22 39:5 [e-mail] 5:6 39:8 barring 28:22 based 8:14 9:19 12:13,16 13:9 14:1 17:7 28:9 35:21 basically 28:5 basis 18:18 36:22 battle 13:11 30:4 Baumann 2:10 Beach 2:22 beautifully 26:4 beginning 26:16 behalf 1:6 6:17,23,24 7:6,16 11:1,2 22:5 believ e 13:16 15:17 16:13 20:6 22:11 24:20 25:10 26:3 32:1 believ ed 12:11 believ es 27:19 bench 35:1 benefit 11:7,17 14:18 20:16 21:9 best 7:25 beyond 17:24 20:1 21:3 31:9,24 bifurcated 31:14 33:1 Bill 7:7 Biscayne 1:20,21 2:16 Bjorg 1:19 6:8 Blaszkowski 1:4 6:1 block 29:22 board 20:14 Boulev ard 1:21 2:11,16 Box 3:22 branch 35:2 breadth 25:15 break 31:1 Brickell 3:3,14 brief 16:7 19:3 22:8 31:1 briefed 19:17 briefing 14:16 bring 23:5 bringing 22:6 Broadway 4:8 burden 17:17 burdens 18:25 burdensome 10:11 15:21 28:25 29:1 30:25 burdensomeness 29:2 business 17:23 30:2 C C 2:10 39:1,1 CA 3:11 cahoov [e-mail] 3:7 [e-mail] 3:4 called 26:1 36:12 care 34:13 Carlos 4:3 7:5 Carlton 3:21 6:24 Carol 3:2 6:12 11:1 case 1:3 7:25 8:15,25 9:15,17 11:5,6 11:13 13:13 14:15 17:25 19:24 20:1 23:4 24:8 26:17,18,18 27:2 27:10 28:11,18 29:1 30:2,3,4 32:14,17,19 cases 32:6 catapult 17:3 categories 25:6 27:15 Catherine 1:18 6:7 cause 20:8 26:19 caused 17:14,16 23:20 causes 20:3,10 cav eat 34:9 CECILIA 1:14 Center 2:3 certain 8:22 9:14,16,17,19 18:6 certainly 13:12,24 19:5 30:21 34:9 36:5 Certificate 5:9 certify 39:2 challenges 21:2,21 characterizations 25:6 characterize 26:20 chart 10:5 charts 32:11 chasing 17:11 chev rons 5:25 choosing 27:12 chose 27:6,10 chosen 27:14 Circuit 12:14 14:10 30:4 circulate 35:17 CITATION 5:14 cited 26:17 28:11,18 32:6 [e-mail] 2:5 claim 9:4,5 10:16 12:14 14:10 18:10 claiming 10:10 claims 9:8,19,22 10:8,13 20:3 class 14:2,3,4 21:5 27:6,7,8,10,13 clear 6:3 11:25 12:9 clearly 11:12 clock 26:13,19 close 27:14 closer 8:9 closure 15:3 cmaciv [e-mail] 1:22 Colgate 3:17 6:25 7:2 Columbus 2:8 come 15:10 33:24 34:9 coming 8:21 19:22 21:13 38:2 comment 26:9 comments 26:10 commercial 25:9 commit 10:21 common 26:22 commonalty 23:11 company 17:24 comparison 20:21 complain 10:1 complaining 10:1 18:15,16 Complaint 9:14 11:9,11,20 12:7,12 12:25 13:9,21,22,25 14:1,11,19 15:4,16 17:8 21:15 24:17 26:14,21 27:5 35:12,19 36:3 completely 12:13 29:21 comprehension 17:24 concede 19:7,8,22 28:21 32:21 conceded 26:13 concern 9:2 24:15 concession 26:15 28:21 29:16 30:14 conduct 8:16 20:7 24:11 confer 23:2 conference 5:19,23 11:6 23:22 24:13,22 25:7,14 27:24 conferral 12:3 connection 29:23 Connolly 4:12 7:14 consensus 35:18 consideration 30:16 33:1 considering 10:18 consolidated 30:3 35:15,22 37:12 consumed 24:18 contact 28:4 contacts 17:23 34:16 contents 5:7 10:6 context 24:10 continue 13:10 contrary 16:23 17:5 20:7 control 27:4,6 CONVENTIONS 5:21 conv ersation 17:6 cooperativ e 26:5 Coral 4:4 corresponded 23:7 corresponds 27:13 costs 18:25 counsel 5:22 11:10,22 12:6,8,17,18 13:3,6 15:12,14,21 16:19 23:7,16 24:14 29:8 33:8,13 counsel's 23:20 count 21:2,11 counts 19:8 20:13,20 36:16 couple 36:9 course 17:10 19:1 24:22 34:10 court 1:1 5:3,23 6:1,15 7:19,21 8:8 8:21,23 10:17,20,23 11:12,17 12:9 12:11,16,20 13:10 14:10,17,22 15:1,5,6,13,15,22,23,24 16:3,5,16 16:20,25 18:13,17,21,25 19:12,17 19:25 20:4 23:1,14 24:11 25:12 26:25 27:11,16 28:23 30:18 31:4 31:14,18 32:23,24 33:21 34:13,24 35:4 36:5 37:3,6,10,14,24 38:1 39:6 Courthouse 5:4 Courts 26:17,18,20 Court's 11:18,21 13:18 14:18 15:16 15:18 17:14 25:12 29:7 30:11,16 Cozen 4:8 7:3 co-counsel 6:11 Craig 2:2 3:5,21 6:16,18,24,24 create 35:17 Crutcher 3:10 6:13 7:8 [e-mail] 4:5 current 13:25 custom 25:9 28:3 cut 8:24 19:25 20:23 24:14 cut-and-paste 36:12 D D 3:18 dare 20:18 36:19 date 19:1 39:5 dates 18:2 DAVIS 1:5 day 15:22 24:16,19 days 15:9 22:18 23:6,17 35:12,18,21 36:3,6 deadline 8:21 11:21 13:18 16:25 18:4 deadlines 13:18 deal 35:15 dealt 21:21 December 8:23 9:1,20 12:20 13:20 22:8,11 23:6,17 decided 9:11,14 13:8,22 decision 15:22,24 19:18 20:10 deemed 21:15 36:3 defend 35:7,8 defendant 2:6,14 3:8 4:6,15,19 6:9 6:14 9:4 16:11 21:5 22:1 24:8 37:19 defendants 1:12 2:1,19 3:17 4:11 8:11 9:7,18,22 10:1,6,10,16,22 11:4,15,24 12:1 13:1,5,7,14 14:2,4 14:24 15:21 16:17,20 17:12,15 18:9,19,22 19:20 20:3,13 21:4,9 21:12 22:16 23:9 24:1,7 35:11,16 defense 12:6,18 24:9 definitely 32:21 degree 23:11 32:13 Del 4:6 7:4 delay 8:14 13:17 17:14 20:8 23:20 24:11 delayed 8:15 deleting 21:20 Dempsey 2:20 6:23 denied 34:20

January 25, 2008

41
deny 10:18 15:7,25 35:5 denying 10:14 18:19 department 25:25 deposition 16:11 18:2 derailed 16:22 Description 5:12 Descriptions 5:20 detail 16:15 determine 32:8,12 [e-mail] 1:22 different 27:1 difficult 8:1 35:15 dilatory 19:23 20:6 24:11 diligence 25:23 directed 22:20 23:2,14 discov ery 8:19 9:25 12:22,24,24 14:23 17:12,22 18:1 21:25 22:10 22:12,14,24 23:12,25 25:2,3,8 26:11 29:16,22 31:7 32:7 35:13,23 37:4,17 discretion 26:25 27:12 discuss 30:25 discussed 8:23 32:3 discussions 16:19 dismiss 10:19 11:8,16,24 12:5,15,19 13:15 14:7,9,16,19 15:3 16:2,21 17:1 19:7 20:15,15,24 21:16 29:20 29:23 31:10 35:15,22 37:12 dismissed 13:5 24:8 dispute 33:13 DISTRICT 1:1,1,14 DIVISION 1:2 DLA 4:21 7:17,20 document 22:21 24:23 26:2 29:14 30:9 documentation 28:13,24 29:25 30:1 30:6 documents 25:4,16,16,19,20,23 26:2 27:25 29:3,9 31:11 32:15 33:4,7,19,23 doing 14:21 door 33:24 draft 21:19 35:17 drafting 36:14 37:8 Draper 4:17 7:9 drawing 20:14 Driv e 2:21 drop 9:14 18:6,7 29:8,17 dropped 8:22 9:4,5,8,17 10:8,11 24:7 dropping 21:4 36:20 due 15:11 25:23 33:17 Dunn 3:10 6:13 7:8 duplicating 34:3 duplication 25:17 D.C 3:7 4:13 E E 3:9,10 39:1,1 East 2:11 easy 33:5 Economic 36:17 economy 13:12 effect 26:13 efficient 23:24 effort 9:12 19:10 20:7 35:16 efforts 33:22 34:4 Eikeland 1:19 6:8 either 16:21 24:7 29:7 electronically 37:11 Email 1:22 2:5,9,13,17,23 3:4,7,12 3:15 4:5,9,14,18 5:6 39:8 emailed 23:17 Emails 4:23 encompass 23:25 energy 9:12 enormous 9:11 17:17 entitled 25:13 32:20 error 10:21 Escagedo 2:3 ESQ 1:18,19,19 2:2,7,10,15,20 3:2,5 3:9,10,13,18,21 4:3,7,12,16,20,21 et 1:11 ev e 11:20 13:17,20 ev ent 23:21 27:2 ev ents 26:20 27:5 Ev idence 5:11 exactly 18:15 example 25:9,21 27:3 excuse 10:18 18:1 exercise 27:12 Exhibit 25:5 Exhibits 5:10,11 expect 21:16 expeditious 14:14,20 15:1 expeditiously 15:9 expense 17:17 expensiv e 15:20 explain 14:22 35:12,14 explore 34:16 expressed 22:14 extend 36:1 extended 35:25 36:9 F F 39:1 fact 12:4,10,25 22:23 30:3 factor 10:18 fail 20:13 fairly 14:25 20:19 29:4 faith 8:13 10:15 11:15 12:3 13:14,16 23:2 35:16 fall 29:14 false 16:22 Fama 4:7 7:3,3 far 26:8 31:16 32:3 Fax 5:5 39:7 Federal 5:4 feel 8:15 10:13 16:2 felt 12:10 Fields 3:21 6:24 fight 13:7 29:19,22,23 30:5,5 fighting 30:5 file 11:16 12:19 24:16,16 36:1 filed 8:4 11:9,20 12:8 13:14 16:16,20 17:15 21:15,17 36:4 filing 26:14 30:2 find 25:4 31:11 33:25 34:2 fine 8:9 37:5,9,25 fine-tuning 36:11 firm 7:3 22:4 first 6:6 7:22 8:20 11:5 12:12 20:14 21:20 22:19 26:11 29:24 34:10 35:14 36:10 fiv e 13:5 FL 1:21 2:4,12,17,22 3:4,14,23 4:4 4:18 5:5 39:7 Flagler 2:21 4:17 flexible 26:5 Florida 1:1,8 25:10 28:4,16 32:4,7,19 34:18 focus 30:11 followed 24:5 food 32:17 Foods 4:19 7:4,16,18,20 footnoted 29:13,16 force 14:15 15:7 forecasting 36:7 foreclosed 27:20 foregoing 39:2 Foreman 1:20 format 25:7,14 Fort 2:12 forth 8:12 15:11 21:5 forthcoming 16:21 17:16 forward 9:7,15 13:13,21 17:7 19:22 23:5 found 16:17,19 four 26:7 27:10 28:23 29:14 30:13,13 30:23 31:5,7,12,22,23 32:8 frankly 19:12 fraud 36:16 fully 19:3,17 31:2 Fulmer 2:10,10 6:11,11 further 10:20 12:6 33:13 G G 2:15 Gables 4:4 Gail 3:9 6:13 Gamble 2:14 6:21 gathered 8:2 generating 28:1 getting 16:17 Gibson 3:10 6:13 7:8 giv e 10:19 11:7 18:7 20:9,15 21:9,18 25:9 27:16 33:21 35:6 36:5 giv en 10:12 12:4 18:2,19 28:8 36:2 giv es 37:7 giv e-and-take 23:3 giv ing 18:10,15 20:21 31:21,24 33:24 36:8 glad 14:21 Glass 2:11 go 12:18 14:6 18:7 19:15 20:14,23 21:3 23:24 25:8 31:6,9,16,24 33:1 33:7,8,25 34:5,10,15 God 10:2 goes 26:9 going 17:7 20:8,13,22,23,23 21:1 32:22,23 33:4 34:14 35:24,25,25 36:1,11,15,19,20 good 6:1,16 7:5,7,15,17,21 8:13 10:15 11:15 12:3 13:14 19:8 23:2 24:5 25:2 26:10 27:15 35:16 38:3 Grand 3:11 grant 10:19 21:6 granted 12:17 22:10 grants 10:17 great 9:1 greater 21:18 Greer 2:15,16 6:20,20,20 guess 28:11,22 30:8 guy 25:24 H half 17:1 21:1 happen 20:22 21:18 happened 13:4 22:7 happy 15:5 harm 18:12 Hartson 3:3,6 6:12,18 11:1 hear 6:6 8:4 10:4 15:10,14 21:25 23:16 heard 7:24 24:11 35:13,22 hearing 1:13 6:4 22:11,18 23:6 held 11:5 helpful 22:6 high 23:11 32:13 Hill's 3:17 7:2 Hogan 3:3,6 6:12,18 11:1 hold 37:1 HOLLUB 1:5 Honor 6:9,16 7:5,7,15 8:10 9:9 10:4 10:4,25 11:4,5 13:24 14:6,12,20 15:6,19,25 16:4 18:24 22:3,4,8,10 22:12,14,22 23:7 24:22 25:1,7 26:22 28:20 29:20 30:8,17 31:13 32:2 33:3,17 34:25 35:11 37:13,25 38:4,5 Honor's 33:11 Hoov er 3:5 6:18,18 hope 10:3 22:14 27:17 30:14 horizontal 28:12 Horst 2:7 22:5 hotel 28:16 Houlihan 4:12 7:13,13 housekeeping 24:18 Hunton 3:13 7:11 I Iams 6:21 idea 35:24 identification 5:11,24 identify 5:22 immediate 24:15 important 24:10 inclined 31:2 35:1 include 10:5 35:23 included 10:3 income 25:24 incomprehensible 18:9 Incorporated 7:14 INDEX 5:10,14,19 indicate 29:18 indicated 5:24 11:7,12 indicating 30:22 indiv idually 1:5 indiv iduals 25:5 industry-standard 5:24 infirmities 20:2 information 10:12 31:11 33:24 34:4 35:7 initial 11:6,9 initially 32:9,12 initiated 24:12,12,19 innocent 27:18 inordinate 17:21 inquiry 27:20 insufficient 35:20 intent 8:13 interactiv e 27:25 28:1 interestingly 9:3 International 2:3 interrupt 31:4 interwov en 29:12 inter-relationship 32:13,16 inv alid 10:13 inv estigation 16:18 in-house 33:22 irrelev ant 29:21 issue 19:17 25:15,25 29:1 30:21 31:3 31:5,25 32:1 33:2,11 35:2,5,8,13 36:22,25 issued 15:4 issues 17:3,9 18:16 19:4,12 20:8,9 21:4,24 24:2 25:17 26:6,7 30:14 37:15,19,21 i.e 5:25 J J 1:18 4:12 James 2:7 3:18 6:9 7:1 January 1:10 18:3 23:19,19,19,22 24:14 [e-mail] 3:20 [e-mail] 2:23 Jim 22:4 join 13:19 joinder 11:14 JR 2:10 [e-mail] 2:9 Judge 1:14 34:1 judicial 13:12 juncture 28:20 jurisdiction 8:19 9:4,5 17:4,4,14,20 18:8 19:15 21:21 28:17,19 32:18 jurisdictional 9:19 12:22 13:1,5,7 14:23 17:2 18:1 19:4 21:4,25 22:1 22:10,16 23:9 24:9 29:21 35:7,13 35:23 36:22,25 37:4,17 K K 2:7 Kalil 2:2,3 6:16,16 Kayanan 4:16 7:9,9 keep 7:25 14:16 keeping 28:23 kind 33:4 knock 30:15 know 6:4,4 7:24 10:10 12:4 13:9 16:18 17:19,23 19:21 25:15 26:1 26:16 28:14 32:18,22 33:19 34:25 36:24 37:21 knowing 11:8 20:16 known 17:13 knows 27:22 Kroger 2:6 6:10 18:2 22:5,18 24:6,24 27:19 28:4 34:16 37:4 Kroger's 21:24 27:20,25 kroger.com 28:16 Kubicki 4:17 7:9 L L 4:21 Lane 2:7 22:4 large 36:15 Lauderdale 2:12 law 7:3 20:19 22:4 25:13 26:9,17 27:16 28:9,11,18 30:2 32:19 lawyers 19:25 21:12 37:21 lead 11:2 leav e 7:23 8:5,17 10:17,20 11:3,20 13:2,19 16:1,9 18:19 19:2 21:6 24:16 Lees 3:9 6:13,13 left 16:12 26:7 lengthy 20:25 LeRoy 2:10 let's 14:16,16,17,17 15:23 18:7 19:21 19:22 31:9,14 licensing 17:9 Licko 3:2 6:12,12 10:24,25 11:1 18:24 35:10,11 36:19 37:13,25 38:4

January 25, 2008

42
Licko's 16:23 17:5 life 33:5 limit 30:23 31:23 35:8 limited 31:22 34:1 Line 5:12,12 listening 21:7 literally 26:1 litigant 19:11 litigate 19:16 litigating 8:18 9:12 litigation 8:25 16:22 19:1 Litten 2:20 6:22,22 little 24:4 LLC 2:1,7 6:17 LLP 2:20 3:10,13,18 4:12,21 long 9:2 longer 9:17 13:6,10 31:5 Lonnie 4:21 7:15 [e-mail] 4:23 look 18:5,14 19:19 32:14,20 looked 13:15 looking 8:24 25:13 Los 3:11 Loss 36:17 lot 24:18 M M 1:14 MacIVOR 1:18 6:7,7 7:23 8:6,7,10 16:6,7 19:2,24 20:17 25:1,18 27:22 30:19,20 31:13,17 32:1 33:24 34:9 37:2,5,9 38:5 major 23:23 24:1 majority 30:10,10 Maltzman 1:20 Maria 4:16 7:9 Marked 5:11 Mars 1:11 4:11,11 7:14,14 material 33:14 matter 9:6,21 17:4 18:8 27:8 39:3 matters 7:22 19:5 21:3 24:18 mean 31:4 34:3 MEDINA 5:3 39:5 meet 8:22 23:2 meeting 23:18 24:5,5 meet-and-confer 23:8,15 24:13,20 27:24 Meier 5:15 32:13 [e-mail] 4:18 memorandum 8:3 mention 16:25 mentioned 9:1 Menu 4:19 7:16,18,20 merits 8:25 met 23:22 Miami 1:2,8,21 2:4,17 3:4,14,23 4:18 5:4,5 39:6,7 microphone 8:9 Milne 2:3 Miranov a 2:8 mirror 22:24 misstatement 27:17,18 mistaken 24:21 money 9:12 Monte 4:6 7:4 month 8:18 months 9:13 16:8,10,22 17:13 19:16 36:10,18 morning 6:1,16 7:5,7,15,17,21 38:2 motion 1:13 7:23 8:5,12,17 10:14,16 10:19 11:3,8,16,24 12:2,2,4,8,15 12:17,19 13:2,11,15,15 14:7,9,15 14:19 15:7 16:1,2,15,20 17:1 18:23 19:3,7,17 20:2,14,15,24 21:6,16 24:16 26:8 29:15,17,19,23 30:5 31:10 33:10 34:19,22 35:2,5 35:7,15,22 36:9,10 37:12 motions 13:18 15:3 17:18 20:18 mov e 13:12 23:4 mov ed 16:9 mov ing 7:25 11:5 13:21 28:8 36:1 multi-hour 24:24 N narrow 12:23 17:3 20:9 narrowed 17:1 22:15 30:11 narrowing 12:24 18:16 need 13:22,24 18:10,11 19:8 20:9 31:15,16 32:5,7,23 34:21 37:3 needed 8:21,22 9:22,24 11:23 24:16 Nestle 3:1 6:12,19 Nestlé 11:2 nev er 14:8,9 20:11 30:24 new 2:1 3:19 4:9,22 6:17 9:3,13 13:8 17:18 18:1 21:22 22:12,20,25 35:17 36:18 news 24:5 26:10 27:15 noninteractiv e 28:13 29:9,20 31:20 31:21 33:3,14,16 34:14 noninteractiv ely 28:15 normally 35:19 North 5:4 39:6 note 29:2 noticed 23:10 notices 23:11 notwithstanding 12:10 13:20 Nov ember 11:12,21 number 8:14 22:24 24:7 28:6 Nutrition 3:17 7:2 Nutro 3:8 6:14 7:8,12 NW 3:6 4:13 NY 3:19 4:9,22 O Oakland 2:11 object 28:17 31:21 objected 28:13 objection 28:10,12,21 29:8,11 33:16 objectionable 12:10 objections 10:14 28:5 obv ious 19:10,11 obv iously 29:16 occurrence 27:2 offered 12:20 office 23:22 Official 5:3 39:6 Oh 2:8 10:2 Okay 34:5,24 37:2 once 8:2 13:17 14:7 16:17 31:2 ones 22:24 29:18 ongoing 14:23 open 8:23 operation 25:10 opinion 11:8,18 14:18 15:16,18 opportunity 9:23 12:5,21 14:8 31:24 oppose 12:1,5,6 15:18 18:9 36:9,24 opposed 25:16 opposition 8:3 11:2 20:17 21:9,13 26:12 36