Iconics, Inc. v. Massaro, et al.

Filing 512

Judge Douglas P. Woodlock: MEMORANDUM AND ORDER entered denying #413 Motion for Summary Judgment; denying #414 Motion to Strike ; finding as moot #415 Motion to Strike ; denying #417 Motion for summary judgment; denying #421 Motion to disqualify; denying #424 Motion for summary judgment (Woodlock, Douglas)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

ICONICS, INC.

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Plaintiff,
v.
SIMONE MASSARO,
CHRISTOPHER VOLPE, VENTO
INDUSTRIES, INC., BAXENERGY GmbH
And BAXENERGY ITALIA S.r.L.,
Defendants.

CIVIL ACTION NO.
11-11526-DPW

MEMORANDUM AND ORDER
June 27, 2016
I. FACTUAL BACKGROUND
This case involves two sets of business disputes, tied
together by a common cast of characters and allegations
concerning misappropriation of plaintiff’s intellectual
property.
Plaintiff ICONICS is a software company which produces
HMI/SCADA (Human Machine Interface/Supervisory Control and Data
Acquisition) systems.

HMI/SCADA systems collect data from a

machine and transmit that data in a useful, visualized form to
client computers.

For example, a SCADA system might be

connected to a boiler in a factory, allowing a factory operator
to see and control data such as water levels or temperature.

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This process necessarily requires customization – by either
ICONICS itself or by middlemen known as “system integrators” to the particular machines being monitored and controlled.
Certain aspects of SCADA systems are standardized under the
“OPC” interoperability standard.

ICONICS’s software includes

the GENESIS32, GENESIS64, and BizViz products.
Defendant Simone Massaro is a former ICONICS employee.
Beginning in late 2007, while still employed by ICONICS, Massaro
started helping another former ICONICS employee, Chris Volpe,
with software development for Volpe’s company, Volpe Industries.
The remaining defendants, BaxEnergy GmbH, BaxEnergy Italia,
S.r.L., and Vento Industries, Inc. are entities with which
Massaro or Volpe was affiliated after Massaro left ICONICS.
A.

Project Foxtrot
Volpe Industries worked in the surveillance camera business

and sought to develop its own surveillance software.

This

software development project, with which Massaro became
involved, was known as Project Foxtrot.

Massaro has admitted

that while still employed by ICONICS, he took ICONICS source
code without permission for use in Project Foxtrot.

ICONICS

first learned that Massaro was using its code in Project Foxtrot
in August, 2008 and confronted him on September 16, 2008.
Massaro resigned from ICONICS on January 6, 2009.

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In the wake of the Project Foxtrot initiative, ICONICS
commenced state and federal litigation.

In December 2009, the

Suffolk Superior Court issued a declaratory judgment holding
that ICONICS owned all of Massaro’s interest in Project Foxtrot,
due to employment contracts between ICONICS and Massaro.
ICONICS, Inc. v. Volpe Industries, Inc., No. 09-0361-BLS2 (Mass.
Super. Ct. Dec. 14, 2009).
bankruptcy.

In 2010, Volpe Industries filed for

Those bankruptcy proceedings were marred by efforts

to conceal the activities of Massaro and Volpe:
It is undisputed that in the bankruptcy proceedings, Vince
Volpe, the brother of Chris, set up a shell company to
purchase and then wipe Volpe Industries' servers. The
Bankruptcy Court expressed concern that it had been
defrauded by this purchase and when ICONICS ultimately
acquired those servers, found that 80,000 files had been
deleted. It is also undisputed that Chris Volpe testified
in the state court proceedings that he never knew that
Massaro was using ICONICS software in his Project Foxtrot
work but also stated in his deposition for this proceeding
that he was in fact aware. ICONICS alleges, but defendants
dispute, that in the state court litigation, Massaro and
Volpe Industries intentionally withheld part of the source
code to hide the fact that he had copied it from ICONICS.
ICONICS, Inc. v. Massaro, No. CV 11-11526-DPW, 2016 WL 199407,
at *2 (D. Mass. Jan. 15, 2016).
B.

Energy Studio Pro
Meanwhile, Massaro moved on to a new enterprise.

Two weeks

after his resignation, Massaro began communicating with Rüdiger
Bax, of the system integrator firm Bax Engineering GmbH, about
possible work.

By June 2009 – ICONICS contends earlier –

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Massaro’s new consulting company was working with Bax
Engineering on a new wind power software product called Bax Wind
Power.

In February of 2010, Bax and Massaro formed a new German

company, defendant BaxEnergy GmbH, to run renewable energy
operations, as well as an Italian subsidiary defendant BaxEnergy
Italia SRL (the two companies will be referred to herein as
BaxEnergy).

The development history of Bax Wind Power begins in

February 2010, after the formation of BaxEnergy, leaving a
potential gap in the record regarding how the product was coded
in the early stages of its development.
Over time, BaxEnergy developed the Bax Wind Power product
into a new product, still focused on wind power, called Energy
Studio Pro (“ESP”).

ESP includes a SCADA component, which for

one of its customers is provided by ICONICS and for other
customers is provided by an ICONICS competitor.
brothers were also involved with BaxEnergy.

The Volpe

Vince Volpe

eventually purchased Mr. Bax’s majority share of BaxEnergy.
Chris Volpe founded a new company, defendant Vento Industries,
Inc., which operates as an American partner or division of
BaxEnergy providing sales and support in the American market.
ICONICS contends, among other things, that ESP was
developed using misappropriated ICONICS code, provided by
Massaro, violating both copyright protection and trade secrets
law.

There is no dispute that at least some ICONICS code
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appears in ESP.

A small, 150-line file of javascript ICONICS

code known as webHMI.js can be found on the BaxEnergy source
code repository.

Most of that code was also copied into a

different file titled ScadaAutomation.js.

WebHMI.js allows

clients to view relevant data visualizations over a web browser.
That said, plaintiff’s technical expert opined that webHMI.js is
the only directly copied ICONICS code he found in Energy Studio
Pro.

ICONICS alleges additional copyright and trade secret

violations based on the development process itself.
II. PROCEDURAL HISTORY
The original complaint in this proceeding was filed in
August 2011, alleging only one count (copyright infringement)
against only Massaro, for claims related to Project Foxtrot.
ICONICS has amended its complaint twice, in May 2013 and April
2014, and now pleads ten causes of action against the current
list of defendants.

Almost immediately after this litigation

began, discovery disputes arose.

By the summer of 2014, ICONICS

was complaining – as it still does – that it was being
improperly denied access to BaxEnergy code, while defendants
were complaining – as they still do – that ICONICS had not
properly identified its trade secrets with specificity.

These

issues, which have been litigated aggressively, have required
consistent judicial oversight and intervention since then, as
have other discovery matters.

They remain intertwined with the
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instant summary judgment motions, both on the merits and as a
continuing source of contention between the parties and their
counsel.
In May, 2014, a separate settlement was reached that
resolved all claims against Vince Volpe.
defendant in this matter.

He is no longer a

Otherwise, motion practice has failed

to narrow the scope of this litigation substantially.

On

September 17, 2014, by oral order, I denied motions to dismiss
by BaxEnergy and by Chris Volpe (with the exception of
dismissing on preemption grounds state unfair business practice
claims concerning copyright infringement) and denied defendants’
motion to strike trade secret claims.
Earlier this year, on defendant’s motion for partial
summary judgment, I entered an order denying the motion in part
(as to Massaro) on statute of limitations defenses and granting
the motion in part (as to the trade secrets, intentional
interference with contractual relations and DMCA claims against
Christopher Volpe, and as to the copyright infringement claims
related to Volpe Industries).

ICONICS, Inc. v. Massaro, No. CV

11-11526-DPW, 2016 WL 199407, at *1 (D. Mass. Jan. 15, 2016).
Now before me are two separate summary judgment motions
brought by defendants, one concerning plaintiff’s civil RICO and
civil conspiracy claims and one concerning all other claims
insofar as they relate to Energy Studio Pro (but focused almost
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entirely on the intellectual property issues).

Notably, this

means that summary judgment is not sought as to the nonBaxEnergy defendants for eight of ten counts.

For its part,

Plaintiff has moved for summary judgment on its claims under the
Digital Millennium Copyright Act (“DMCA”).

In addition, there

are three motions to strike expert witness testimony under
Daubert, two from plaintiff, one as to defendant’s technical
expert, Arthur Zatarain, and the other as to defendant’s damages
expert, Bradford J. Kullberg, and one from defendants (as to
Jimmy S. Pappas, plaintiff’s damages expert).

Finally, ICONICS

has a pending motion to compel discovery and for sanctions based
on long-standing discovery controversies.
In this Memorandum and Order I consider and reject all
summary judgment motions with respect to the issues presented
except those raising trade secret claims, which I reserve,
awaiting the development of additional initiatives to clarify
the trade secrets at issue.

I will allow Plaintiff’s motion to

compel as a predicate for further developments and clarification
of the disputed trade secrets.

I will treat as moot the motions

to strike the expert witness submission as to trade secrets in
light of such further trade secret claim clarification
initiatives.

I will reserve the motions to strike the damages

experts until further clarification of the substantive claims.

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III. STANDARD OF REVIEW
Under Rule 56, I may only grant summary judgment if there
is no genuine dispute of material fact and if the undisputed
facts demonstrate that the moving party is entitled to judgment
as a matter of law.

Fed. R. Civ. P. 56(a); Carmona v. Toledo,

215 F.3d 124, 132 (1st Cir. 2000).

An issue is genuine if it

“may reasonably be resolved in favor of either party.”
v. Bissonnette, 548 F.3d 50, 56 (1st Cir. 2008).

Vineberg

A fact is

material if it could sway the outcome of the litigation.

Id.

In determining whether genuine disputes of material fact exist,
all reasonable inferences must be drawn in the non-movant’s
favor. Id.

Once the moving party has carried its burden, the

burden shifts to the non-moving party, which must provide
specific and supported evidence of disputed material facts.
LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993).
The non-moving party “may not rest upon mere allegation or
denials” and must “establish a trial-worthy issue.”

Id.

IV. BAXENERGY COPYRIGHT CLAIMS
ICONICS has alleged both direct copying – specifically, in
the form of the single webHMI.js file – and indirect copying in
which defendants used ICONICS code while developing the Energy
Studio Pro software but ultimately did not retain that code in
ESP.

Defendants raise two general arguments against ICONICS’

copyright claims.

First, they argue that the copyright
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allegations are extraterritorial and therefore outside the scope
of domestic copyright law.

Second, they argue that the

copyright registrations covering ICONICS’ products do not cover
the relevant, potentially copied code, barring an infringement
suit.

With respect to allegations of indirect copying,

defendants argue that the evidence of infringement is only
circumstantial and refuted by direct record evidence.

As for

WebHMI.js, where copying is admitted, defendants assert that the
file was either permissibly used under license or copied in a de
minimis fashion.
A.

I address these contentions in turn.

Extraterritoriality
BaxEnergy is not an American company and Massaro’s work for

it has not been performed in the United States.

Defendants

therefore argue that any potential copyright infringement is
extraterritorial and cannot give rise to liability under
domestic copyright law.

Defendants are correct that the

copyright laws do not generally extend extraterritorially.
Elsevier Ltd. v. Chitika, Inc., 826 F. Supp. 2d 398, 402 (D.
Mass. 2011) (quoting Update Art, Inc. v. Modiin Publ'g, Ltd.,
843 F.2d 67, 73 (2d Cir. 1988) (“It is well established that
copyright laws generally do not have extraterritorial
application.”)).
But the predicate act exception to this general rule allows
for liability where a domestic act of copyright infringement
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permits the later distribution, reproduction or other use
abroad.

Update Art, Inc., 843 F.2d at 73; see also Tire Eng'g &

Distribution, LLC v. Shandong Linglong Rubber Co., 682 F.3d 292,
308 (4th Cir. 2012) (per curiam) (“a plaintiff is required to
show a domestic violation of the Copyright Act and damages
flowing from foreign exploitation of that infringing act to
successfully invoke the predicate-act doctrine”).

So long as

one connected act of infringement occurred in the United States,
there is no obstacle to liability on the basis that BaxEnergy
and Massaro worked outside the United States.
It is uncontested that Massaro’s initial act of copying the
ICONICS code occurred while he was in the United States.
is uncontested.

This

Defendants now argue that it is conjectural

which files were copied and that, in any case, no nexus has been
shown between the domestic Project Foxtrot copying and the
alleged extraterritorial BaxEnergy copying.

But it would be a

permissible – although not necessary - inference for a jury that
the code in question traveled from ICONICS servers in the United
States to use by BaxEnergy through that first, potentially
extensive, act of copying in the United States.

If copyright

infringement were to be found, that would be the most plausible
pathway, given that ICONICS has mustered direct evidence of
copying domestically and no such evidence extraterritorially.
In short, there exists a genuine issue of material fact as to
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whether this case falls within the predicate act exception to
the extraterritorial limitation on copyright law and summary
judgment is not appropriate on those grounds.1
B.

Copyright Registration
The Copyright Act “requires copyright holders to register

their works before suing for copyright infringement.” Reed
Elsevier, Inc. v. Muchnick, 559 U.S. 154, 157, (2010) (citing 17
U.S.C. § 411(a)).

Although this requirement is not

jurisdictional, id., it is an important element of an
infringement claim.
ICONICS registered specific versions of three software
products on May 17, 2013: GENESIS64 v. 10.4, from May 2010;
GENESIS32 v. 9.10, from December 2007, and BizViz v.9.10, from
April 2008.

Those registrations arguably excluded previously

released versions of the software.

In its applications, in a

space labeled “Material excluded from this claim,” ICONICS wrote
“Previously released versions of the work.” Then, under “New

1

Earlier this month, the Supreme Court reaffirmed its general
approach to extraterritoriality in a fashion consistent with the
development in the lower courts of the predicate act exception
for copyright violations. RJR Nabisco, Inc. v. European
Community, 2016 WL 3369423 (U.S., June 20, 2016). While not
extraterritorial by terms, the Copyright Act – with its focus on
whether copying occurred in the United States – can properly be
invoked for extraterritorial application when, as here, the
predicate act exception is applied to domestic copying integral
to an extraterritorial violation. See generally Morrison v.
Nat’l Australia Bank, 561 U.S. 247, 266 (2010).
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material included in claim,” ICONICS wrote “Computer program,
including various revisions and updates throughout the work.”
The “material excluded” section appears to exclude from the
registration prior versions, although the “new material” section
seems to limit the exclusion only to the revisions and updates
it “includ[es].”2

Defendants argue that these registrations only

cover the updates, that the unlawful copying was (or may have
been) from earlier unregistered versions, and that ICONICS
therefore cannot establish a prima facie case of copyright
infringement sufficient to avoid summary judgment.
Specifically, defendants claim that Massaro copied ICONICS code
prior to the May 2010 release of GENESIS64 v. 10.4, meaning that
he copied from an earlier unregistered version, and that the
WebHMI.js code existed in unregistered versions of GENESIS32
prior to v. 9.10.
Defendants err, however, by contending for a particular
categorical connection between the version of a work that is
registered and the version of a work that is copyrighted and
infringed upon.

Defendants correctly cite Airframe Sys., Inc.

v. L-3 Commc'ns Corp., 658 F.3d 100, 106 (1st Cir. 2011), as

2

ICONICS asserts that this online form is misleading, because it
includes “uneditable exclusion language” that is not present on
the paper version of the same registration form. Nevertheless,
this is the form, and the exclusion language the plaintiff chose
and a wholesale argument that the registration was unlawful
would not seem to serve ICONICS’ purpose.
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requiring a plaintiff to present “sufficient evidence of copying
(including substantial similarity) with respect to at least one
of the . . . source code versions covered by its copyright
registrations.”

But Airframe does not address the registration

requirement, or to what extent a copyright registration can
cover previous versions of a software program.

It only

addressed the need to show “substantial similarity” to prove
copying, and the factual difficulties in that instance of
showing such similarity across different versions of a program.
Moreover, Airframe did not involve unregistered prior versions
of software, but rather unregistered subsequent versions of
software.
In Airframe, plaintiff compared an unregistered 2009
version of a software program to the allegedly infringing work,
which was made using unauthorized access to code in or before
2003. The plaintiff’s registered software versions dated from
1981 to 2003 and the plaintiff presented no evidence asserting
how similar the 2009 version it analyzed was to the earlier
versions that were infringed upon and which were registered.
Given those facts, the First Circuit found that the plaintiff
could not establish the “substantially similar” prong of the
“copying” element of copyright infringement.

Those factual

issues are not implicated in this litigation on summary

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judgment, where plaintiff’s expert has supportably undertaken to
quantify the overlap between the various versions.3
Also unlike Airframe, this case involves registered
versions of software that postdate the potentially-infringed
versions, not which precede it.

Registration of subsequent

versions of a copyrighted work allows for infringement suits on
past versions, even though the converse is not true.

Compare

Streetwise Maps, Inc. v. VanDam, Inc., 159 F.3d 739, 747 (2d
Cir. 1998) (“because Streetwise is the owner of the copyright of
both the derivative and pre-existing work, the registration
certificate relating to the derivative work in this circumstance
will suffice to permit it to maintain an action for infringement
based on defendants' infringement of the pre-existing work”)
with Well-Made Toy Mfg. Corp v. Goffa Int'l Corp., 354 F.3d 112,
115-16 (2d Cir. 2003) (abrogated on other grounds by Reed
Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010)) (“Well–Made
contends that the converse proposition—that registration of a

3

Likewise, a District of Arizona case relied upon by the
defendants involves a factual record without any evidence of how
different versions of the relevant software built on each other.
AFL Telecommunications LLC v. SurplusEQ.com Inc., 946 F. Supp.
2d 928, 941 (D. Ariz. 2013). The court there noted that it had
found the “effective registration doctrine” of cases like
Streetwise applicable on a motion to dismiss, where it could
“infer from the complaint that each successive software version
incorporates the preceding versions,” but could not do so
without factual basis on summary judgment. Id. Here, plaintiff
has put forward facts of the sort missing in that case.
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claim on a pre-existing work confers jurisdiction over
infringement claims regarding its derivative works—is also true.
We conclude otherwise.”).

See also Christopher Phelps &

Associates, LLC v. Galloway, 492 F.3d 532, 539 (4th Cir. 2007)
(“While Phelps & Associates only registered the Bridgeford
Residence design, that registration satisfied the prerequisite
for suit under 17 U.S.C. § 411 for the entire design, even
though some of it was created earlier in the form of the Bell
and Brown Residence design”).

Even if the previous versions of

the three software programs were not included in the 2013
registration applications, those earlier registrations are
sufficient to allow an infringement suit concerning the earlier
versions of the software.4

4

ICONICS also seeks to avoid a registration problem through
another, less promising, mechanism. In response to the instant
summary judgment motion, on May 16, 2016 ICONICS filed for
copyright registrations on a set of older versions of GENESIS32
and GENESIS64. In a January 15, 2016 memorandum in this
litigation, I noted (without expressly holding) that
“[g]enerally, a copyright registration filed after the
infringement suit, but before the statute of limitations has
expired, will cure the § 411 defect.” ICONICS, Inc., No. CV 1111526-DPW, 2016 WL 199407, at *4 n.4. However, I also noted
that “where final judgment is sought before the copyright is
registered, courts have dismissed the action.” Id. citing
Kernel Records Oy v. Mosley, 694 F.3d 1294, 1302 (11th Cir.
2012). Registrations filed subsequent to a summary judgment
motion may not necessarily cure a failure to register earlier.
However, I find this issue immaterial for the reasons stated
above.
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C.

Intermediate Copying Claims
ICONICS’ expert, Mr. Hicks, has opined that BaxEnergy must

have had a copy of ICONICS source code which it used during the
software development process to ease, speed, and improve its own
coding – even if most of that ICONICS code does not appear
directly in BaxEnergy’s products.
Defendants suggest in their briefing that this is “noncopying” that cannot form the basis of an infringement claim,
although they cite no case law to that effect.

But creating

intermediate copies of copyrighted code, even to develop one’s
own independently-written code, can be copyright infringement.
Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510, 1518-19
(9th Cir. 1992), as amended (Jan. 6, 1993) (“intermediate
copying of computer object code may infringe the exclusive
rights granted to the copyright owner in section 106 of the
Copyright Act regardless of whether the end product of the
copying also infringes those rights”).

See also Terril Lewis,

Reverse Engineering of Software: An Assessment of the Legality
of Intermediate Copying, 20 Loy. L.A. Ent. L. Rev. 561, 564
(2000) (“A person who reverse engineers a piece of software will
almost certainly infringe the copyright in that software through

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the creation of an intermediate copy of the work”).5

In part,

this is because each time a software program is run, it is
transferred to the computer’s memory, creating a new copy.
Soc'y of Holy Transfiguration Monastery, Inc. v. Gregory, 689
F.3d 29, 55 (1st Cir. 2012) (quoting MAI Sys. Corp. v. Peak
Computer, Inc., 991 F.2d 511, 517–18 (9th Cir. 1993)) (“a
computer makes a ‘copy’ of a software program when it transfers
the program from a third party's computer (or other storage
device) into its own memory”); see also Airframe Sys., Inc. v.
Raytheon Co., 520 F. Supp. 2d 258, 267 (D. Mass. 2007), aff'd,
601 F.3d 9 (1st Cir. 2010) (“With regard to software, an act of
copying sufficient to violate the Copyright Act occurs each time
the software is run”).

If adequately supported, an intermediate

copying claim can generate infringement liability.
Defendants also argue that the evidence of such
intermediate copying is merely circumstantial, largely
speculative, and rebutted by direct evidence.

But defendants’

arguments require the kind of weighing of evidence that is not
appropriate on summary judgment.

For example, Hicks identified

what he asserted to be nine months of missing software
development history from the repository of Massaro’s consulting

5

This type of copying can often be fair use. See Sony Computer
Entm't, Inc. v. Connectix Corp., 203 F.3d 596, 602 (9th Cir.
2000). But defendants do not assert a fair use defense here.
17

company, Anteasoft, during the period in which Massaro was
consulting for Bax Engineering.

ICONICS seeks to draw from that

gap various inferences about defendants’ use of ICONICS code
during the undocumented period of time.

Defendants disagree and

put forward what they consider “the most reasonable explanation
of the facts,” based on the deposition testimony of Massaro (who
testified that the missing months were the product of a transfer
of code made nine months after a separate back-up of the code
was created), to suggest that all their code was accounted for
and developed fully independently.

Adjudicating the credibility

of Massaro, or the reasonableness of one explanation over
another, is a matter for the jury, not for summary judgment.
Defendants also press a series of other plainly factual
arguments.

Defendants push back on Hicks’ opinion that the

close interoperability between ICONICS software and Bax software
shows that defendants used ICONICS code while developing their
own programs, asserting that such interoperability could be
achieved instead from public documentation and the skills of a
system integrator (or on Massaro’s own personal expertise in the
field) and citing their own expert’s testimony.

Notably,

defendants have not moved to exclude Hicks’ report or testimony
on Daubert grounds.

They simply disagree about his conclusions.

Likewise, when plaintiffs put forward evidence that Massaro sent
emails including two ICONICS copyright headers as suggesting
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that he retained the source code those headers were previously
associated with, defendants respond by citing Massaro’s
testimony that he retained those headers only to show that
ICONICS itself was misappropriating open source software. These
are disputes over facts and what inferences can be drawn from
the evidentiary record.

Defendants’ objections to the

circumstantial evidence put forward by ICONICS are inadequate
arguments for summary judgment.
D.

Direct Copying Claims Related to WebHMI.js
WebHMI.js is the only code in BaxEnergy’s source code

repository that ICONICS has identified as identical to its own
code.

It is roughly 150 lines of javascript that was first

copied onto BaxEnergy’s TFS source code repository and then
placed into a different file named ScadaAutomation.js.

It is

used by EDF-EN-Portugal, a BaxEnergy customer that also uses
ICONICS software, and allows clients to view ICONICS software
over a web browser.

Defendants admit that webHMI.js is ICONICS

code, copied and in use by BaxEnergy.

Their argument that this

is not copyright infringement as a matter of law is – in full –
that “whereas the ‘use’ to which the javascript code is made is
a licensed use by a licensed customer, ICONICS’ copyright claim
as to WebHMI.js is licensed, or at best, de minimis.”

This

entirely conclusory argument – made without citation to legal
authority or the factual record in defendants’ original brief –
19

is not sufficient to support a summary judgment motion.

Cf.

Nat'l Foreign Trade Council v. Natsios, 181 F.3d 38, 61 n.17
(1st Cir. 1999), aff'd sub nom. Crosby v. Nat'l Foreign Trade
Council, 530 U.S. 363, (2000) (“arguments raised only in a
footnote or in a perfunctory manner are waived”).
ICONICS has mustered sufficient record evidence and
argument to rebut these contentions.

It asserts that, as

opposed to EDF-EN-Portugal, which did receive a license
BaxEnergy never received a license to work with ICONICS
software; that the license to EDF-EN-Portugal only allowed the
creation of a single archival back-up copy but that at least
three copies were made; and that webHMI.js could be found on
BaxEnergy servers even before BaxEnergy began working with EDFEN-Portugal.
The de minimis argument also lacks force.

ICONICS notes

that webHMI.js allowed BaxEnergy customers to interoperate with
ICONICS software while using a BaxEnergy-branded web interface,
which it asserts to be of material value, and that the length of
the code (as opposed to its effect) is irrelevant to a de
minimis defense, see Dun & Bradstreet Software Servs., Inc. v.
Grace Consulting, Inc., 307 F.3d 197, 208 (3d Cir. 2002).

More

importantly, the de minimis argument is simply inapplicable in
this context.

The First Circuit has stated that a de minimis

amount of copying is not a separate defense to copyright
20

infringement but rather “a statement regarding the strength of
the plaintiff's proof of substantial similarity.”

Situation

Mgmt. Sys., Inc. v. ASP. Consulting LLC, 560 F.3d 53, 59 (1st
Cir. 2009).

Moreover, the First Circuit found the de minimis

exception inapplicable when infringement has also been alleged
“through the overall structure and arrangement” of a work, as
has been alleged in this case.

Id. at 59 n.2.

ICONICS has

sufficiently raised a genuine issue of material fact on these
defenses, particularly given the bare development of Defendants’
claims concerning webHMI.js.
Because none of defendants’ arguments for summary judgment
proves persuasive, summary judgment is denied with respect to
all of ICONICS’ copyright infringement claims.
V. CIVIL RICO AND CIVIL CONSPIRACY CLAIMS
In a second, separate motion, defendants also seek summary
judgment on ICONICS’ claims of a civil RICO violation and a
civil conspiracy.

To establish a RICO violation, a plaintiff

must show “(1) conduct (2) of an enterprise (3) through a
pattern (4) of racketeering activity.” Efron v. Embassy Suites
(Puerto Rico), Inc., 223 F.3d 12, 14-15 (1st Cir. 2000) (quoting
Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985)).
Defendants here only contest the existence of the “pattern”

21

element of RICO liability.6

To demonstrate a “pattern,” a

plaintiff must show two predicate acts of racketeering activity,
from the list set forth at 18 U.S.C. § 1961(1).

The plaintiff

must also show that those predicate acts “are related, and that
they amount to or pose a threat of continued criminal activity.”
Id. (quoting H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S.
229, 239 (1989).7
A.

Copyright Infringement as a Predicate Act
To determine whether a pattern of racketeering activity can

be found, it is necessary to first establish which predicate
acts allegedly constitute the pattern.

ICONICS alleges that

defendants’ RICO activity was comprised of criminal copyright
infringement under 18 U.S.C. § 2319, fraud against the

6

Defendants do not admit the existence of the other elements,
but for the purposes of summary judgment their argument is
limited to the existence of a “pattern.”
7 Although not raised by the defendants in the motions before me,
I note that the Supreme Court’s recent discussion of the
extraterritoriality of RICO treats the question of RICO as
derivative of the extraterritoriality of the underlying RICO
predicate statute. RJR Nabisco, Inc. v. European Community,
2016 3369423 at *11 (“A violation of § 1962 may be based on a
pattern of racketeering that includes predicate offenses
committed abroad, provided that each of those predicate offenses
violates a predicate statute that is itself extraterritorial.”).
As noted above, see Note 1 supra, there is sufficient evidence
here to support extraterritorial application of the Copyright
Act. Moreover, from all that appears, Plaintiff has adduced
sufficient evidence to raise a genuine issue of whether it
suffered a domestic injury to its business or property, RJR
Nabisco, Inc. v. European Community, 2016 WL 3369423 at *15, to
support a private RICO cause of action under 18 U.S.C. §
1962(c).
22

bankruptcy court, and obstruction of justice under 18 U.S.C.
§1503.

All three are listed as predicate acts in the RICO

statute.

18 U.S.C. § 1961(1).

Cf. Metro-Goldwyn-Mayer Studios

Inc. v. Grokster, Ltd., 545 U.S. 913, 961, 125 S. Ct. 2764,
2793, 162 L. Ed. 2d 781 (2005)(Breyer, J., concurring)
(“copyright infringement can be a predicate act under the
Racketeer Influenced and Corrupt Organizations Act”).

Even so,

defendants argue that the copyright infringement alleged in this
case is not the sort of copyright infringement meant to serve as
a predicate act under RICO.

Only the most serious

counterfeiting and piracy, they contend, can serve as a
predicate act under RICO.
Defendants’ narrow reading of the RICO statute draws some
force from the legislative history and consideration of the
purpose of the statute.

The court in Stewart v. Wachowski, No.

CV 03-2873 MMM VBKX, 2005 WL 6184235, at *5 (C.D. Cal. June 14,
2005), cited the legislative history, including committee
reports and statements in hearings, in concluding that when
Congress added copyright infringement to the list of predicate
acts under RICO, it did not mean to include all acts of
copyright infringement.

“Congress did not intend to criminalize

all intentional copyright infringement or subject all multiple
acts of intentional infringement to RICO liability. The
legislative history of the Anticounterfeiting Act reveals that
23

Congress's intent in expanding the list of RICO predicate
offenses was to supplement existing sanctions against
counterfeiting and piracy organizations.”

Id. at *5.

Other

district courts have followed Stewart in holding that only the
most “egregious” acts of copyright infringement can serve as
RICO predicate acts.

Helios Int'l S.A.R.L. v. Cantamessa USA,

Inc., No. 12 CIV. 8205, 2013 WL 3943267, at *8 (S.D.N.Y. July
31, 2013) (citing Melville B. Nimmer & David Nimmer, 1 Nimmer on
Copyright § 3.04[B][3] (2013)); see also Robert Kubicek
Architects & Associates Inc. v. Bosley, No. CV 11-2112 PHX DGC,
2012 WL 3149348, at *2 (D. Ariz. Aug. 1, 2012).

That said, the

legislative history mustered by the Stewart court serves only to
show that counterfeiting and piracy were at the center of
Congressional attention when Congress amended RICO; nothing
suggests that Congress intended ordinary copyright infringement
not to be a predicate act.
However, the plain text of the statute, not excursions
through legislative history, governs here.

Racketeering is

defined to include “any act which is indictable under” 18 U.S.C.
§ 2319 (emphasis added).
the statute.

No limitation appears on the face of

Indeed, even the Stewart court found the relevant

statutes “unambiguous on their face.”

2005 WL 6184235, at *5.

In the First Circuit, legislative history may only be used to
interpret a statute where the plain text is unclear.
24

United

States v. Godin, 534 F.3d 51, 56 (1st Cir. 2008) (citing United
States v. Roberson, 459 F.3d 39, 51 (1st Cir. 2006)) (“If the
meaning of the text is unambiguous our task ends there as
well.”).
More fundamentally, the Supreme Court has repeatedly
instructed that plain text governs in the particular context of
RICO and rejected judicial attempts to narrow the legislativelyenacted text.

See, e.g., H.J. Inc., 492 U.S. at 245 (“It is

argued, nonetheless, that Congress' purpose in enacting RICO. .
. was to combat organized crime; and that RICO's broad language
should be read narrowly so that the Act's scope is coextensive
with this purpose. We cannot accept this argument for a
narrowing construction of the Act's expansive terms.”).

Indeed,

the Court specifically identified the “breadth of the predicate
offenses” as driving the divergence of RICO’s actual use from
its intended anti-mobster purpose – and then stated that if a
“correction” was sought, it “must lie with Congress.”8
S.P.R.L. 473 U.S. at 499-500.

Sedima,

If allowing all acts of criminal

copyright infringement to serve as predicate acts under RICO
sweeps too broadly, a narrowing interpretation is not “a form of

8

For the same reason, defendants’ many references to RICO as a
“misused statute” and “the litigation equivalent of a
thermonuclear device,” Goldfine v. Sichenzia, 118 F. Supp. 2d
392, 394 (S.D.N.Y. 2000) (quoting Miranda v. Ponce Fed. Bank,
948 F.2d 41, 44 (1st Cir. 1991)), are in this context little
more than rhetorical throat-clearing.
25

statutory amendment appropriately undertaken by the courts.”
The acts of copyright infringement proffered in the summary
judgment record here are sufficient to serve as predicate acts
under RICO.
B.

Continuity
To survive summary judgment, ICONICS must show that the

various acts of copyright infringement, bankruptcy fraud, and
obstruction of justice it alleges could be found to be related
and continuous, sufficient to make a pattern.

It is clear, and

defendants do not contest, that the acts are related; they each
involve the same individuals (Massaro and the Volpe brothers)
and the allegedly repeated use and concealment of ICONICS
software code.

At issue is whether continuity existed.

plaintiff can show continuity under RICO in two ways.

A

“Under

the ‘closed’ approach, a plaintiff would have to prove a ‘closed
period of repeated conduct’ that ‘amounted to ... continued
criminal activity.’ Alternatively, under the ‘open-ended’
approach, a plaintiff could satisfy the continuity requirement
by showing ‘past conduct that by its nature projects into the
future with a threat of repetition.’”

Home Orthopedics Corp. v.

Rodriguez, 781 F.3d 521, 528 (1st Cir. 2015) (quoting H.J. Inc.,
492 U.S. at 237).

Under either approach, whether a pattern

exists is ultimately a question of fact.

See e.g. Resolution

Trust Corp. v. Stone, 998 F.2d 1534, 1543 (10th Cir. 1993).
26

The courts and Congress have not offered a fixed formula
for when, under the “closed” approach, repeated conduct rises to
the level of continued criminal activity.

Home Orthopedics

Corp., 781 F.3d at 529 (“both the Supreme Court and this court
have declined to spell out specifically how many predicate acts,
or how long the racketeering has to endure, for a plaintiff to
satisfactorily allege the pattern requirement”).

While

“sporadic activity” or acts that span only a “few weeks or
months” are not enough to establish continuity, id. citing H.J.
Inc., 492 U.S. at 239, 242, the First Circuit has instructed
only that closed-ended continuity should be found “where the
temporal duration of the alleged activity and the alleged number
of predicate acts are so extensive that common sense compels a
conclusion of continuity.”

Id. (citing Giuliano v. Fulton, 399

F.3d 381, 387 (1st Cir. 2005)).
those poles.

This case clearly falls between

Plaintiffs have alleged racketeering activity

beginning in 2008 and continuing with some regularity to the
present.

Even so, a finding of continuity is not outright

compelled, given the divisibility of the racketeering into three
discrete episodes (allegations related to Project Foxtrot
infringement, the Foxtrot cover-up, and BaxEnergy).

But see

Efron, 223 F.3d at 18 (collecting cases suggesting that patterns
of racketeering lasting over four and one-half years likely to
satisfy closed-ended continuity).
27

In such intermediate cases, the First Circuit has
identified other factors that point toward closed-ended
continuity, including whether defendants were engaged in
multiple schemes, whether the schemes affected more than a
“closed group of targeted victims,” and whether the scheme could
“last indefinitely” or have a “finite nature.”
Efron, 223 F.3d at 18–19).

Id. (citing

These factors are meant to support a

“natural and commonsense approach to RICO's pattern element” and
help determine whether the acts alleged comprise the “kind of
broad or ongoing criminal behavior at which the RICO statute was
aimed.” Efron, 223 F.3d at 18.

Analyzing these factors, it is

clear that summary judgment is inappropriate on this issue.
While the set of victims alleged by plaintiffs is not expansive,
it includes not only ICONICS but also, through the frauds
committed in the bankruptcy process, the bankruptcy court and
bankruptcy trustee.

The number of schemes alleged is similarly

finite – particularly if the bankruptcy frauds are understood
only as a cover-up adjunct to Project Foxtrot – but not “one
scheme with a singular objective.”

Efron, 223 F.3d at 18.

A

jury reasonably could find these factors pointing toward the
existence of a pattern.

Likewise, the factual nature of

BaxEnergy’s ongoing use of ICONICS code, and therefore whether
the scheme could last indefinitely, is hotly contested.

A

genuine issue of material fact remains on whether closed-ended
28

continuity – and therefore a “pattern” under civil RICO exists.

Summary judgment is denied on plaintiff’s civil RICO

claims.
Because a jury could find continuity under a closed-ended
approach, I need not decide whether a jury could also find openended continuity.

But for the sake of completeness and in

anticipation of trial, I note that open-ended continuity also
involves genuine factual disputes for the jury.

To show open-

ended continuity, a plaintiff must demonstrate “that the
racketeering acts themselves include a specific threat of
repetition extending indefinitely into the future [or] ... are
part of an ongoing entity's regular way of doing business.”
Home Orthopedics Corp., 781 F.3d at 531 (quoting Feinstein v.
Resolution Trust Corp., 942 F.2d 34, 45 (1st Cir. 1991)).

An

inference of open-ended continuity is further supported by
evidence that defendants would repeat their racketeering acts in
new contexts, Kenda Corp. v. Pot O'Gold Money Leagues, Inc., 329
F.3d 216, 233 (1st Cir. 2003) (“If Kenda had produced evidence
that the defendants had plans to take over another company or
pool league in the same fraudulent manner, they might have had a
stronger argument” for open-ended continuity), or that
defendants’ scheme lacks a definite “soon-to-be reached
endpoint,” Efron, 223 F.3d at 20.

ICONICS alleges that

defendants have now perpetrated the same scheme twice – once
29

with Project Foxtrot and once with BaxEnergy – and would do so
again.9

The extent to which copyright infringement at BaxEnergy

is entirely in the past or continues into the present and likely
the future, is a contested question of fact for the jury.

That

jury could therefore find a threat of repetition and open-ended
continuity.

For this reason, as well, I deny summary judgment

on plaintiff’s civil RICO claims.
C.

Civil Conspiracy
Because defendants seek to dismiss plaintiff’s civil

conspiracy claims only on the grounds that they rise and fall
with plaintiff’s civil RICO claims, I deny summary judgment on
the civil conspiracy count as well.

9

ICONICS also asserts that Mr. Massaro is currently threatening
to repeat the scheme if BaxEnergy loses this litigation. In an
email to the CEO of ICONICS, Massaro warns that if ICONICS wins
this litigation, BaxEnergy will close and “All the engineers in
Catania will open their own business within a day and your
failure will be evident to everyone, and instead of dealing with
me alone now you will be dealing with 50 new software business.”
While indicative of the bad blood coursing through this dispute,
this email may also be read to raise a genuine issue of material
fact regarding Massaro’s threat of continued racketeering (as
opposed to increased lawful competition). Defendants claim this
statement is inadmissible because it was made in a settlement
conversation, but Federal Rule of Evidence 408 only limits the
use of settlement conversations “to prove or disprove the
validity or amount of a disputed claim or to impeach by a prior
inconsistent statement,” neither of which is the purpose for
which it is offered here.
30

VI.

DMCA CLAIMS

ICONICS has moved for summary judgment on its claims under
the Digital Millennium Copyright Act (“DMCA”).

ICONICS contends

that Massaro first removed copyright management information
(“CMI”), in violation of 17 U.S.C. § 1202(b), and then replaced
it with false CMI in violation of 17 U.S.C. § 1202(a).
The DMCA prohibits the use of false CMI, and provides that
“No person shall knowingly and with the intent to induce,
enable, facilitate, or conceal infringement provide copyright
management information that is false, or distribute or import
for distribution copyright management information that is
false.”

17 U.S.C. § 1202(a).

It further prohibits the removal

or alteration of CMI, providing that
[n]o person shall, without the authority of the copyright
owner or the law—(1) intentionally remove or alter any
copyright management information, (2) distribute or import
for distribution copyright management information knowing
that the copyright management information has been removed
or altered without authority of the copyright owner or the
law ... knowing ... that it will induce, enable,
facilitate, or conceal an infringement of any right under
this title.
17 U.S.C. § 1202(b). See also Photographic Illustrators Corp.
v. Orgill, Inc., 118 F. Supp. 3d 398, 406 (D. Mass. 2015).
The primary source of information at issue in this
litigation is “copyright headers” included in a variety of
ICONICS source code files.

These headers are comprised of

relatively human-readable text at the top of a file of code.

31

A

header might begin by reading “Copyright (c) 1986-2006 ICONICS,
Inc. (copyrighted as an unpublished work). CONFIDENTIAL:
Contains TRADE SECRET information” and then provide the name of
the original author of the file.

ICONICS alleges that, on more

than one occasion, Massaro transferred ICONICS files onto
servers of Volpe Industries, removed the ICONICS copyright
headers, and replaced them with new Volpe headers.

ICONICS also

asserts that the code itself in these files often referred to
ICONICS as “Ico” and that those references were replaced in the
code itself with “Fox” (for Volpe Industries’ “Project
Foxtrot”).

It is uncontested that for at least two files, on

September 17, 2008, Massaro deleted an ICONICS copyright header
and replaced it with a Volpe Industries copyright header.
Whether Massaro did so for 280 other files, however, is
contested.
These copyright headers are paradigmatic CMI.

Copyright

management information is defined as information conveyed in
connection with copies of a work, including in digital form.
U.S.C. § 1202(c).

17

More specifically, CMI is limited to eight

categories of information, including the title of a work, the
author of a work, the copyright owner of a work, and the terms
and conditions for using a work, among others.

Id.

The headers

used by ICONICS convey at least information about the copyright
owner, author, and certain terms of use for the file (i.e.,
32

confidentiality), and are conveyed along with the source code
files precisely to keep this identifying information together
with the code.
definition.

These headers plainly fall under the statutory

In the software code context, even information

integrated into the code itself can also be CMI, where it
reveals authorship.

See, e.g., Bounce Exch., Inc. v. Zeus

Enter. Ltd., No. 15CV3268 (DLC), 2015 WL 8579023, at *3
(S.D.N.Y. Dec. 9, 2015) (“Weaving CMI into the text of the
source code may be among the most efficient or securityenhancing ways to include CMI with that code”).

The in-line

references to “ico” and “fox,” too, are CMI.
Defendants’ efforts to argue that this information is not
CMI are unpersuasive.

They argue, for example, that because the

headers mention both copyright and trade secrets, it is not
clear whether the files are copyrighted, trade secrets, or both.
Given that defendants admit that a file could contain both trade
secrets and copyrighted material, however, it is not clear why
the inclusion of a trade secret marker negates the header’s
status as CMI.

Likewise, defendants question whether headers on

individual files can be CMI when the copyright at issue covers
the full versions of programs, not individual files.

But the

definition of CMI neither states nor implies that CMI can only
exist with regard to the full version of a work, instead
requiring that the information be “conveyed in connection with
33

copies … of a work.”

17 U.S.C. § 1202(c).

Putting headers in

individual files is how headers can be conveyed with the
software itself. Indeed, courts have been concerned with the
opposite problem: defining as CMI blanket assertions of
copyright that are not linked to the individual works or items
in circulation.

Pers. Keepsakes, Inc. v.

Personalizationmall.com, Inc., No. 11 C 5177, 2012 WL 414803, at
*7 (N.D. Ill. Feb. 8, 2012) (disapproving of DMCA claims where
“a picture or piece of text has no CMI near it but the plaintiff
relies on a general copyright notice buried elsewhere on the
website”).
Having established that the headers are indeed CMI, most
elements of both DMCA claims are uncontested, at least for the
two files where the header removal is admitted.

Defendants

admit that ICONICS did not authorize any replacement by Massaro
of its copyright headers.

They admit that Massaro deleted

source code headers from at least two files that he copied to
the Volpe Industries server and for those two files they admit
that Massaro added a Volpe Industries header in its place.
These two files were modified the day after ICONICS first
confronted Massaro over his work for Volpe Industries.
Given these facts, defendants make two arguments in
opposition to summary judgment.

First, they argue that Massaro

did not “provide” or “distribute” false CMI because he only
34

uploaded the false CMI onto the private Volpe server, rather
than broadcasting it more widely.

Contrary to defendants’

protestations, however, courts have not held that “distribution”
under § 1202(a) requires wide, public distribution.

The cases

that defendants cite do, as a factual matter, involve the
posting of false CMI on the Internet or in the phone book, but
they do not even purport to require that kind of public
distribution for liability as a matter of law.

Granger v. One

Call Lender Servs., LLC, No. CIV.A. 10-3442, 2012 WL 3065271, at
*4 (E.D. Pa. July 26, 2012); Stockwire Research Group, Inc. v.
Lebed, 577 F. Supp. 2d 1262, 1267 (S.D. Fla. 2008); Gregerson v.
Vilana Fin., Inc., No. CIV.06-1164 ADM/AJB, 2008 WL 451060, at
*7 (D. Minn. Feb. 15, 2008).
issue.

They do not even address the

Nor do DMCA cases always involve the broad public

dissemination of CMI.

See, e.g., Med. Broad. Co. v. Flaiz, No.

CIV.A. 02-8554, 2003 WL 22838094 (E.D. Pa. Nov. 25, 2003)
(defendant disclosed former employer’s confidential information
to his new employer).

Moreover, even if Massaro had not

“distributed” the false CMI, he surely “provided” it.
Second, defendants argue that there is insufficient
evidence of intent and knowledge here.

Massaro has testified

that he believed that he was permitted to use the code in
question for non-competitive side projects, which he believed
Project Foxtrot to be.

He also testified that he replaced the
35

ICONICS headers with Volpe headers only after learning that
ICONICS was upset with him as an attempt to “separate” the two
companies’ code.

According to his testimony, he did not remove

or alter CMI to facilitate infringement because he believed that
he was doing nothing wrong and then simply cleaning up a mess.
ICONICS, for its part, argues that this testimony so lacks
credibility that it does not raise a genuine issue of material
fact.

They point, for example, to the fact that Massaro changed

only the headers, not the substance of the code, and that he
made the changes secretly after being confronted by ICONICS.
While these facts raise serious questions about Massaro’s
testimony, they are fundamentally credibility determinations
inappropriate for summary judgment, and all the more
inappropriate on questions of intent, which are best left for a
jury.

Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 167 (1st

Cir. 1998) (particular caution required in granting summary
judgment on questions of intent).

Because a genuine dispute

exists over Massaro’s intent, summary judgment is denied on
ICONICS’ DMCA claims.

Accordingly, I do not reach defendants’

arguments about the scope of their DMCA liability.
VII. REMAINING BAX ISSUES
Certain additional claims against BaxEnergy are also the
subject of summary judgment.

Defendants have moved for summary

judgment as to BaxEnergy on these issues, although they did not
36

provide extensive briefing on their arguments for summary
judgment.
Count IV of the operative complaint alleges intentional
interference with contractual relations by BaxEnergy, concerning
Massaro’s confidentiality agreement with ICONICS.

Defendants

claim (citing no law) that this claim must be dismissed because
BaxEnergy was formed two years after Massaro left ICONICS and
Massaro is a partial owner of BaxEnergy.

It is entirely unclear

why Massaro’s ownership of BaxEnergy is relevant to this claim,
and given that Massaro’s contractual duties of confidentiality
presumably extend beyond the date of his leaving ICONICS, the
date that BaxEnergy was formed seems equally irrelevant.
Summary judgment is denied on this count.
Defendants also move for summary judgment on Counts V and
VI, related to the DMCA, with respect only to defendant
BaxEnergy.

They assert, correctly, that ICONICS has put forward

no evidence of DMCA violations by BaxEnergy, with respect to
Energy Studio Pro.

Moreover, ICONICS does not oppose this

aspect of defendants’ motion in its opposition brief.

Summary

judgment will be granted for the BaxEnergy defendants on Counts
V and VI.
With respect to Count VII and VIII, concerning unfair
competition under Massachusetts statute, Mass. Gen. L. ch. 93A,
and common law, defendants argue only that these claims rise and
37

fall based on the existence of copyright and trade secret
claims.

Because I have denied summary judgment on the copyright

claims, I deny summary judgment with respect to the unfair
competition claims.
VIII. CONCLUSION
For the reasons set forth above, I DENY so much of
defendants’ motion for summary judgment [Dkt No. 424] concerning
the BaxEnergy Energy Studio Pro product that does not relate to
trade secrets, and deny the motion as to trade secrets without
prejudice in anticipation of further proceedings to clarify the
trade secret contentions of the parties of DMCA violations.

I

DENY defendants’ motion for summary judgment [Dkt No. 417] on
the civil RICO and civil conspiracy claims and I DENY
plaintiff’s motion for summary judgment [Dkt No. 413] on its
DMCA claims.

I treat as moot the motion [Dkt. No. 415] to

strike the testimony of Arthur Zatarain.

I deny without

prejudice the motion [Dkt. No. 414] to strike the report and
testimony of Bradford J. Kullberg and the motion [Dkt. No. 421]
to disqualify Jimmy S. Pappas and strike his report.

/s/ Douglas P. Woodlock______
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE

38