Simonian v. Maybelline LLC

Filing 43

NOTICE by Maybelline LLC of Supplemental Authority (Attachments: # 1 Exhibit A)(Drake, Jeffrey) [Transferred from Illinois Northern on 3/21/2011.]

Simonian v. Maybelline LLC

Doc. 43

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION THOMAS A. SIMONIAN, Plaintiff, v. MAYBELLINE LLC, Defendant. ) ) ) ) ) ) ) ) )

Civil Action No. 1:10-cv-01615 Honorable Virginia M. Kendall

NOTICE OF SUPPLEMENTAL AUTHORITY Defendant Maybelline LLC ("Maybelline"), by and through its undersigned counsel, respectfully submits this Notice of Supplemental Authority. Attached as Exhibit A is a recent decision out of the United States District Court for the District of Delaware in Brinkmeier v. BIC Corp., No. 09-860-SLR and Brinkmeier v. Bayer Healthcare LLC, No. 10-01-SLR (D. Del. August 25, 2010). Judge Robinson's opinion

addresses issues that are relevant to Maybelline's Motion to Dismiss (Dkt. No. 19-20). In particular, Judge Robinson held that false marking claims under 35 U.S.C. § 292 were subject to the heightened pleading requirements of Fed. R. Civ. P. 9(b) and that pleadings containing more factual assertions than those asserted by Plaintiff Simonian in the present case were insufficient to demonstrate that markings were for "purposes of deceiving the public." Respectfully submitted, /s/Jeffrey M. Drake Jeffrey M. Drake Wood Phillips 500 West Madison Street Suite 3800 Chicago, IL 60661-2562 Ph: [phone] [e-mail]

Dockets.Justia.com

Of Counsel: Francis DiGiovanni Geoffrey A. Zelley Connolly Bove Lodge & Hutz LLP 1007 N. Orange Street Wilmington, Delaware 19899 Ph: [phone] [e-mail] [e-mail] Attorneys for Defendant Maybelline LLC

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CERTIFICATE OF SERVICE I, Jeffrey M. Drake, hereby certify that on the August 30, 2010 the attached document was electronically filed with the Clerk of the Court using CM/ECF which will send notification of such filing to the registered attorney(s) of record that the document is available for viewing and downloading from CM/ECF: Joseph M. Vanek, Esquire David P. Germaine, Esquire Jeffrey R. Moran, Esquire VANEK, VICKERS & MASINI, P.C. 111 S. Wacker Drive Suite 4050 Chicago, IL 60606 Ph: [phone] Fax: [phone] ([e-mail]) ([e-mail]) ([e-mail]) Eugene M. Cummings, Esquire David M. Mundt, Esquire David Lesht, Esquire Martin Goering, Esquire Konrad V. Sherinian, Esquire Panasarn Aim Jirut, Esquire Jessica Rissman, Esquire EUGENE M. CUMMINGS, P.C. One North Wacker Drive Suite 4130 Chicago, IL 60606 Ph: [phone] Fax: [phone] ([e-mail]) ([e-mail]) ([e-mail]) ([e-mail]) ([e-mail]) ([e-mail]) ([e-mail]) Attorneys for Plaintiff Thomas A. Simonian By: Bruce S. Sperling, Esquire Robert D. Cheifetz, Esquire SPERLING & SLATER, P.C. 55 West Monroe Street Suite 3200 Chicago, IL 60603 Ph: [phone] Fax: [phone] ([e-mail]) ([e-mail])

/s/Jeffrey M. Drake Jeffrey M. Drake