Avery Dennison Corporation v. 3M Company et al

Filing 16

DECLARATION of Gerald L. Karel in support of MOTION to Transfer Case to District of Minnesota 12 filed by Defendants 3M Company, 3M Innovative Properties Company. (Flores, Daniel) [Transferred from California Central on 2/3/2011.]

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M. SEAN ROYALL, pro hac vice [e-mail] GIBSON, DUNN & CRUTCHER LLP 2100 McKinney Avenue, Suite 1100 Dallas, Texas 75201-6912 Telephone: [phone] Facsimile: 214.571.2900 DANIEL S. FLOYD, SBN 123819 [e-mail] SAMUEL G. LIVERSIDGE, SBN 180578 [e-mail] GIBSON, DUNN & CRUTCHER LLP 333 South Grand Avenue Los Angeles, California 90071-3197 Telephone: [phone] Facsimile: 213.229.7520 Attorneys for Defendants 3M Company and 3M Innovative Properties Company UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION AVERY DENNISON CORPORATION, Plaintiff, v. 3M COMPANY and 3M INNOVATIVE PROPERTIES COMPANY, Defendants. CASE NO. CV 10-7931 MRP (RZx) DECLARATION OF GERALD L. KAREL IN SUPPORT OF DEFENDANTS' MOTION TO TRANSFER PURSUANT TO 28 U.S.C. § 1404(a) [Notice of Motion and Motion to Transfer Pursuant to 28 U.S.C. § 1404(a); Memorandum of Points and Authorities in support; Declarations of Mary Jo Abler and Daniel S. Floyd in support; Notice of Request and Request for Judicial Notice; and [Proposed] Order filed concurrently herewith] Hon. Mariana R. Pfaelzer Hearing Date: Hearing Time: Hearing Place: February 7, 2011 11:00 a.m. Courtroom 12

Trial Date: Not Set Complaint Filed: October 21, 2010

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DECLARATION OF GERALD L. KAREL I, Gerald L. Karel, declare as follows: 1. I am currently the Technical Director of the Traffic Safety Systems ("TSS") Division for 3M Company ("3M"). I submit this declaration in support of Defendants' Motion To Transfer Pursuant To 28 U.S.C. § 1404(a). I understand this declaration will be used in the above-captioned matter. I have personal knowledge of the matters set forth herein, except where stated otherwise, and if called to testify I could and would competently testify thereto. 2. I am familiar with 3M's participation in the ASTM International ("ASTM") standard-setting organization in connection with the recent addition of the Type XI classification to ASTM Specification No. D4956 ­ 09 ("D4956 Specification"), entitled "Standard Specification for Retroreflective Sheeting for Traffic Control." 3. I have been employed by 3M since 1985. I have held the position of Technical Director of the TSS Division for approximately seven years. In this capacity, I supervise research and development for the Division. The TSS Division, including my office, is based at 3M's corporate headquarters in St. Paul, Minnesota. 4. ASTM International ("ASTM"), formerly known as the American Society for Testing and Materials, is an international private standard setting organization responsible for developing standards for materials, products, systems and methods used in a variety of construction, manufacturing and transportation applications, including retroreflective sheeting. 5. I am currently a member of the ASTM committee on "Road and Paving Materials," also known as the Main Committee D04 ("Main Committee"). The Main Committee includes several subcommittees, including the D04.38 Subcommittee ("Subcommittee"), of which I am a participant. I am not 3M's voting member in the Main Committee or the Subcommittee.

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6.

In approximately December 2004, a new Type XI classification was

proposed to the Subcommittee. The Subcommittee members passed the Type XI classification proposed in 2004 through a formal ballot in late 2006. Shortly thereafter, the Main Committee rejected the Type XI classification approved by the Subcommittee. 7. Though I was not an ASTM member when the Subcommittee voted upon the proposed Type XI classification that was rejected in 2006, as part of my responsibilities I was generally aware of the Subcommittee's proceedings in connection with the proposed classification. At the time the Subcommittee voted on the proposed classification, Tom Bliss was 3M's voting member on the Subcommittee. 8. Mr. Bliss and others reported back on the Subcommittee's proceedings, and I periodically had discussions with Mr. Bliss regarding these proceedings. Mr. Bliss, during this time period, was a 3M Company employee and worked in the Minneapolis/St. Paul area. It is my understanding that Mr. Bliss has knowledge of the events referenced in Paragraph 6, including 3M's proposal to the Subcommittee, the ASTM's consideration of that proposal, and the voting process involved. 9. I later became a member of the Subcommittee and was personally involved in the Subcommittee's consideration of the Type XI classification that was ultimately approved in August 2009. The Type XI classification first proposed in approximately December 2004 and ultimately rejected in late 2006 differed from the Type XI classification that was ultimately approved in 2009. In 2008 and 2009, Tom Bliss, Fuat Aktan and I were actively involved in the proceedings of the Subcommittee. Mr. Aktan is currently a 3M Company employee residing and working in Turkey. In connection with my involvement with the Subcommittee in 2008-2009, I familiarized myself with the Subcommittee's proceedings, ending in December 2006, relating to the first Type XI proposal.

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10.

I have attended two Subcommittee meetings, one in June 2008 in Denver

and another in December 2008 in Miami. On one of those occasions, I recall having a conversation with Jason Davis, the Subcommittee Chair, regarding 3M's significant investment in its "full cube" retroreflective sheeting technology. Mr. Davis is employed by the Louisiana Department of Transportation. 11. During one of the Subcommittee proceedings that I attended, Paul Carlson of the Texas Transportation Institute presented a study comparing different types of reflective traffic sign sheeting and evaluating the visibility and legibility of highway signage by nighttime drivers. It is my understanding that Professor Carlson is a researcher at Texas A&M University based in College Station, Texas. 12. Mark Kleinschmit of Avery Dennison Corporation was involved with the Subcommittee proceedings, and was involved in the development of the mathematical approach used for the Type XI specification adopted in August 2009. It is my understanding that Mr. Kleinschmit is based in Chicago. 13. Carl Anderson of the Turner-Fairbank Highway Research Center was the task group chair for the D4956 Specification proceedings. It is my understanding that Mr. Anderson works at the Turner-Fairbank Highway Research Center, a federally owned and operated research facility in McLean, Virginia, which is the headquarters of the Federal Highway Administration's ("FHWA") Office of Research, Development, and Technology. 14. There were many other individuals who attended or were otherwise involved with the Subcommittee proceedings referenced above. I do not recall any individual directly involved with the Subcommittee proceedings or the Type XI standard-setting process who is a resident of California. 15. After taking a formal ballot of its members in mid-2009, the Subcommittee approved the addition of a new classification for retroreflective sheeting for use in highway construction and maintenance. Shortly thereafter, the new classification was approved by the D04 Main Committee. The new classification is 4