Simonian v. Maybelline LLC

Filing 53

NOTICE by Maybelline LLC of Supplemental Authority (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Drake, Jeffrey) [Transferred from Illinois Northern on 3/21/2011.]

Simonian v. Maybelline LLC

Doc. 53

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

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. 1. Contrary to Maybelline's last Notice of Supplemental Authority, briefing in In re BP Lubricants USA, Inc. had not been completed as of that time. BP Lubricants submitted a reply brief on November 12, 2010, which is attached as Exhibit A. It is now believed that briefing in In re BP Lubricants USA, Inc. is complete. Arguments made by BP Lubricants are relevant to arguments raised by Maybelline in its motion to dismiss, namely whether Rule 9(b) should apply, and what needs to be plead under that rule. The decision of the Court of Appeals for the Federal Circuit in that case will be directly relevant to issues raised by Maybelline in its motion to dismiss, namely whether Rule 9(b) should apply, and what needs to be plead under that rule for a false marking case. As briefing is now complete and the case is in front of the Federal Circuit on a mandamus petition, that decision is expected relatively soon. 2. Attached as Exhibit B is a recent recommendation from Magistrate Judge Mitchell of the Western District of Pennsylvania in U.S. ex rel. Alchemy Asset Services, Inc. v. Glaxosmithkline Consumer Healthcare, LP, Civil Action No. 10-680 (WDPA Nov. 16, 2010). Mitchell recommends that Alchemy Asset Services' complaint be dismissed for failure to meet

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the heightened pleading requirements of Fed. R. Civ. P. 9(b). Mitchell's recommendation contains reasoning relevant to Maybelline's motion to dismiss, particularly Maybelline's argument that Simonian's complaint, which contains similar conclusory statements, should be dismissed under Fed. R. Civ. P. 9(b).

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] 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 November 18, 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