J.T. Colby & Company, Inc. et al v. Apple, Inc.

Filing 70

MEMORANDUM OF LAW in Support re: 68 MOTION to Preclude the Testimony of Defendant's Expert Witness Gregory S. Carpenter.. Document filed by Ipicturebooks LLC, J.Boyston & Company, J.T. Colby & Company, Inc., Publishers LLC. (Chattoraj, Partha)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
____________________________________
J.T. COLBY & COMPANY, INC. d/b/a/
BRICKTOWER PRESS, J. BOYLSTON &
COMPANY, PUBLISHERS LLC and
IPICTUREBOOKS LLC,
Plaintiffs,
-againstAPPLE INC.,
Defendant.

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Case No. 11 Civ. 4060 (DLC)

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION TO EXCLUDE
THE TESTIMONY, INCLUDING AFFIDAVITS, DECLARATIONS, AND REPORTS,
OF DEFENDANT’S EXPERT WITNESS GREGORY S. CARPENTER

ALLEGAERT BERGER & VOGEL LLP
111 Broadway, 20th Floor
New York, NY 10006
[phone]

TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT .....................................................................................................1
ARGUMENT ...................................................................................................................................3
I.

THE COURT SHOULD PRECLUDE CARPENTER FROM SERVING AS AN
EXPERT BECAUSE HE IS NOT QUALIFIED .................................................................4
A.

Carpenter Is Not An Expert In Book Publishing Or Book Marketing.....................4

B.

Carpenter Is Not An Expert In Trademark Law ......................................................9

CONCLUSION ..............................................................................................................................12

i

TABLE OF AUTHORITIES
Page
Cases
Alfa Corp. v. OAO Alfa Bank,
475 F. Supp. 2d 357 (S.D.N.Y. 2007)........................................................................................8
Baker v. Urban Outfitters, Inc.,
254 F. Supp. 2d 346 (S.D.N.Y. 2003)........................................................................................4
Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993) .............................................................................................................3, 10
Gen. Elec. Co. v. Joiner,
522 U.S. 136 (1997) ...................................................................................................................3
Kumho Tire Co., Ltd. v. Carmichael,
526 U.S. 137 (1999) ...............................................................................................................3, 4
Nimely v. City of New York,
414 F.3d 381 (2d Cir. 2005).................................................................................................4, 10
Perfect Fit Industries, Inc. v. Acme Quilting Co., Inc.,
618 F.2d 950 (2d Cir. 1980).....................................................................................................10
Price v. Fox Entm't Group,
499 F. Supp. 2d 382 (S.D.N.Y. 2007)......................................................................................11
Ralston v. Smith & Nephew Richards, Inc.,
275 F.3d 965 (10th Cir. 2001) ................................................................................................11
Stagl v. Delta Air Lines, Inc.,
117 F.3d 76 (2d Cir. 1997).....................................................................................................4, 8
United States v. Tin Yat Chin,
371 F.3d 31 (2d Cir. 2004).....................................................................................................4, 8
Statutes
Fed. R. Evid. 401 .............................................................................................................................3
Fed. R. Evid. 402 .............................................................................................................................3
Fed. R. Evid. 403 .......................................................................................................................3, 10
Fed. R. Evid. 702 ...........................................................................................................3, 4, 7, 8, 10

ii

Miscellaneous
J. Thomas McCarthy,
McCarthy on Trademarks and Unfair Competition § 18:2 .....................................................10

iii

Plaintiffs J.T. Colby & Company, Inc. d/b/a Bricktower Press, J. Boylston & Company,
Publishers LLC and iPicturebooks, LLC (collectively, “Colby”) submit this memorandum of law
in support of their motion to exclude the testimony of Gregory S. Carpenter (“Carpenter”),
including any affidavits, declarations, or reports proffered by Defendant Apple Inc. (“Apple”) for
all purposes, including trial.
PRELIMINARY STATEMENT
In his first report (the “Report” or “Carpenter Rep.”), 1 Carpenter seeks to offer an expert
opinion on “the strength of IBOOKS and IPICTUREBOOKS imprints and, from a marketing
perspective, the likelihood of confusion of those alleged marks with Apple’s IBOOKS mark.”
(Carpenter Rep. ¶ 7.) In addition, in a second report (“Rebuttal” or “Carpenter Rbt.,” and
collectively with the Report, “Reports”), Carpenter seeks to offer an opinion rebutting the expert
report of Robert T. Scherer—a former PTO examiner and trademark lawyer—by commenting on
the transfer of goodwill in Family System’s iBook mark to Apple and whether Colby’s ibooks
and ipicturebooks marks have acquired secondary meaning as trademarks. (Carpenter Rbt.
¶ 14.) 2 But Carpenter is not qualified to opine on any of these topics, and apparently made no
effort to educate himself on either book publishing or trademark law before submitting his
Reports. As a result, his Reports amount to nothing more than irrelevant musings.
Carpenter’s own testimony demonstrates why he is not qualified to present any of his
“expert” opinions in this case. First, as Carpenter admitted, a marketing expert must account for
the fact that “particular [marketing] strategies that are effective vary from context to context.”

1

See Declaration of Claudia T. Bogdanos in Support of Plaintiffs’ Motion to Exclude the
Testimony of Defendant’s Expert Witness Gregory S. Carpenter, dated December 21, 2012
(“Bogdanos Decl.”), Ex. A.
2

Bogdanos Decl., Ex. B.

(Deposition of Gregory S. Carpenter, dated November 21, 2012 (“Carpenter Tr.”), 7:23-8:6.) 3
Carpenter further explained:
What works in automobiles is different than what might work for some brands, in
coffee, for example. So you need to understand those differences, the meaningful
dimensions of those differences to make recommendations about what works and
what wouldn’t work. . . .
(Id. 8:6-12.)
excluded.

Carpenter’s own words demonstrate that his report and testimony should be

Carpenter has no experience in, and fundamentally misunderstands, marketing

practices in the book-publishing industry—though the publishing industry is the particular
“context” in which Colby markets and sells its products. He has never worked in the publishing
industry (id. 9:8-18), he has never been a consultant for a publishing company (id.), and he did
not review any books, articles, or reports relating to the publishing industry in preparing his
Report in this case (Carpenter Rep., App’x B). Probably because of his total lack of knowledge
about marketing in the relevant context, Carpenter’s Report contains no discussion or analysis of
the book-publishing industry—analysis which he admitted is necessary in order for him to
provide a relevant expert opinion here. (Carpenter Tr. 9:2-7.) Thus, for the reasons he himself
espoused, Carpenter fails to qualify as an expert in this case because he has no expertise in the
book-publishing industry, and he has submitted no evidence showing that he understands the
“the meaningful dimensions” of the differences between publishing and other industries
sufficient to “make recommendations about what works and what wouldn’t work.” (Id. 8:6-12.)
For this reason, his Report and testimony should be excluded.
Second, Carpenter is supremely unqualified to opine on any matters of trademark law
because: (1) he is not a lawyer, (2) he has never published any articles on trademark law, (3) he
has never conducted a likelihood of confusion survey, and (4) he does not appear to have read
3

Bogdanos Decl., Ex. C.
2

any articles on trademark assignments in preparing either of his Reports. (Carpenter Tr. 98:1417, 98:22-99:4; Carpenter Rep., App’x B; Carpenter Rbt. ¶ 7.) Yet the entirety of his Rebuttal,
and segments of his Report, are fundamentally premised on his lay, untutored legal opinions—
for example, whether confusion is likely under trademark law or whether a trademark has been
validly assigned.
At base, Carpenter is not qualified as an expert and his opinions are unreliable, irrelevant,
and should not form part of the record evidence in this case. See Fed. R. Evid. 401, 402, 403,
702 (respectively, “Rule 401,” “Rule 402,” “Rule 403” and “Rule 702”).
ARGUMENT
The Supreme Court has exhorted trial courts to scrutinize expert testimony and to exclude
unreliable expert evidence. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147-49 (1999);
Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142 (1997).

Under Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993), district courts must act as “gatekeepers” with
respect to expert testimony in order to ensure that speculative or unreliable expert testimony does
not reach the finder of fact. The guidelines from Daubert are equally applicable to all expert
testimony, including that based on scientific, technical, or other specialized knowledge. See
Kumho Tire, 526 U.S. at 147-49.
Under Rule 702, a witness may testify in the form of an opinion regarding technical or
other specialized knowledge when such knowledge will “help the trier of fact to understand the
evidence or determine a fact in issue,” if the witness is “qualified as an expert by knowledge,
skill, experience, training, or education,” and if: (1) the testimony is based on sufficient facts or
data; (2) the testimony is the product of reliable principles and methods; and (3) the expert has
reliably applied the principles and methods to the facts of the case.

Rule 702.

These

determinations are case-specific, and a court acting as a gatekeeper must determine whether the
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proposed expert has “sufficient specialized knowledge to assist the jurors in deciding the
particular issues in the case.” Kumho Tire Co., 529 U.S. 137, 156 (internal quotation marks
omitted).
As part of this “gatekeeping” role, courts must weed out proposed expert witnesses who
are not qualified as an expert, including proposed experts whose skill, education, or experience
lies in an area different from or more general than the subject matter of the proffered testimony.
See Rule 702; United States v. Tin Yat Chin, 371 F.3d 31, 40 (2d Cir. 2004); Stagl v. Delta Air
Lines, Inc., 117 F.3d 76, 81 (2d Cir. 1997). In so doing, courts recognize that merely “because a
witness qualifies as an expert with respect to certain matters or areas of knowledge, it by no
means follows that he or she is qualified to express expert opinions as to other fields.” Nimely v.
City of New York, 414 F.3d 381, 399 n. 13 (2d Cir. 2005). And the proponent of expert evidence
bears the burden of showing its admissibility by a preponderance of the evidence. Baker v.
Urban Outfitters, Inc., 254 F. Supp. 2d 346, 353 (S.D.N.Y. 2003).
Under these standards, Carpenter’s testimony, including both Reports, must be excluded.
While Carpenter may be a self-proclaimed expert in marketing, he is also admittedly without any
expertise in or knowledge of the book-publishing industry, nor is he a trademark lawyer or an
expert in likelihood of confusion surveys.

Therefore, this Court should exclude all of

Carpenter’s submissions and preclude him from testifying in this matter.
I.

THE COURT SHOULD PRECLUDE CARPENTER FROM SERVING AS AN
EXPERT BECAUSE HE IS NOT QUALIFIED
A.

Carpenter Is Not An Expert In Book Publishing Or Book Marketing

While Carpenter may be a professor of marketing strategy, he is not an expert in book
publishing, nor does he have even a basic understanding of the book-publishing industry, where
marketing strategies and steps differ fundamentally from those in other fields—thus, he is not
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qualified to opine on the adequacy of Colby’s marketing strategy, the strength of Colby’s
imprints, or any likelihood of confusion arising therefrom. As Carpenter recognizes, marketing
strategies are context-driven, and in order to provide an opinion with respect to activities in the
book-publishing industry, one must be “aware of the context and understand some of the
tickers.” (Carpenter Tr. 7:5-6, 8:4-12.)
Nothing in Carpenter’s Reports, however, suggests either that Carpenter has any
background that would give him the necessary understanding of the “meaningful dimensions” of
book publishing (Carpenter Tr. 8:6-12), or that he has done any work in conjunction with his
Reports to learn about the industry. In his Report, for example, Carpenter lists previous clients
for whom he provided “consulting and executive education on marketing strategy and branding
issues,” such as Coca-Cola, Dow Chemical, and Harley Davidson. 4 (Carpenter Rep. ¶ 4.) His
list is entirely devoid of entities even tangentially associated with book publishing. 5 Just as
marketing expertise in cars does not translate to marketing expertise in coffee, Carpenter offers
no basis for his opinion that his experience in the marketing of soft drinks and cruise lines has
any relevance to marketing in book publishing. Without such a foundation, he cannot profess to

4

He also lists Carnival Corporation, Cunard Lines, Government of Mexico, and General
Electric, as well as indicating that he served as a member of the advisory boards of Terlato Wine
Group and Hamilton Consulting. (Carpenter Rep. ¶ 4.)
5

During his deposition, Carpenter also claimed to have provided “executive seminars for
people in magazine publishing and media and related businesses and many businesses that have
characteristics associated with book publishing.” (Carpenter Tr. 9:14-18.) Not only did
Carpenter fail to mention these alleged seminars or any of the supposedly relevant companies in
his Report (id. 9:19-10:10), he also failed to connect any of his analysis to this alleged
experience, and did not even assert that his analysis was based on it. Moreover, Carpenter did
not provide the names of any of these companies or any other specific substantive information
when asked about these alleged seminars at his deposition, even though his Report did include
the names of various companies, unrelated to the publishing industry, to which Carpenter had
provided “consulting in executive education.” (Id. 10:12-12:11.)
5

“understand [the] differences” (or even be aware that differences may or may not exist).
(Carpenter Tr. 8:6-12.)
Carpenter’s only claimed experience in the book-publishing industry has been through
his involvement as an editor of or contributor to academic books (unrelated to the publishing
industry) and/or journals (unrelated to the publishing industry) and as a reviewer of such books
and journals. (Id. 44:23-45:4.) And his only experience in marketing books has been “in
thinking about marketing [his] own books that [he has] edited.” (Id. 45:5-9.) These experiences
of course cannot qualify Carpenter as a marketing expert in the book-publishing industry—if
such general experience sufficed, every published academic, from a musicologist to a botanist,
would be qualified to provide expert testimony on marketing in the book-publishing industry.
Further, in preparing his report and testimony, Carpenter utterly failed to mitigate his lack of
experience and knowledge by educating himself about the book publishing industry: his list of
materials reviewed in conjunction with the preparation of his Report, although full of articles
relating to Apple, does not contain a single publication relating to book-publishing. (Carpenter
Rep., App’x B.) In short, Carpenter lacks the very qualifications he concedes he needs.
Not only does Carpenter lack experience in and knowledge of the publishing industry, he
fundamentally misunderstands its most crucial aspects. For example, he does not mention a
single imprint in his Report, instead comparing Colby’s ibooks/iBooks imprint to massive
publishing houses. (Carpenter Rep. ¶ 21; Carpenter Tr. 28:5-30:5.) Carpenter has further
claimed that an imprint is a publishing label used “to denote the publisher of the book,”
(Carpenter Tr. 21:25-22:8.), and admits that he does not understand “the distinction . . . between
the imprint and the publisher.” (Id. 24:12-26:16.) But imprints are distinct from publishers—
imprints denote teams of editors and marketers within a publishing house, and are a crucial part

6

of multi-level branding in the book industry. (See Expert Report of Mike Shatzkin (“Shatzkin
Rep.”), at 4.) 6 This distinction is critical in this case, where Colby’s mark denotes a small niche
imprint, not a large, general publishing house.
Given Carpenter’s lack of basic understanding of the publishing industry, it is no surprise
that he is also unfamiliar with “niche imprints” like Colby’s (Carpenter Tr. 33:11-34:16), and is
unable to grasp that niche imprints rely on a different type of consumer recognition than do
general publishing houses. (See id. 17:11-20 (agreeing that “[a]ll marketing principles are
applicable to all industries”); Shatzkin Rep. 4-5.) Indeed, Colby’s expert witness Mike Shatzkin,
a marketer with over 50 years of experience in the book industry, has explained that imprints,
rather than large publishing houses, offer a “consistency of . . . content experience” that “buil[ds]
brand awareness.” (Id. at 5.) “[P]articularly compared to a big general publisher, [an imprint’s]
specialization in a genre” that is characterized by repeat purchasers “suggests the potential for a
core audience that would recognize it as a publishing specialist.” (Id.) If Carpenter does not
understand what niche imprints are nor how they build awareness, he cannot possibly help the
jury understand whether Colby has built awareness for its niche imprint. See Rule 702.
Further, because Carpenter’s Report was prepared without an understanding of the book
publishing industry, it is utterly devoid of analysis of that industry. It consists of an assortment
of general marketing principles illustrated through brand examples—Lays, Starbucks, Godiva,
Costco, Wal-Mart, Nordstrom, Honda, Harley-Davidson, OREO cookies—that have no
connection at all to publishing brands of any sort. Carpenter does not acknowledge (let alone
explain) the differences between marketing these consumption brands (i.e., potato chips) and
publishing imprints. (Carpenter Rep. ¶¶ 12, 13, 16, 17, 83.) Nor does he make any attempt to

6

Bogdanos Decl., Ex. D.
7

analyze or explain the book-publishing industry before attempting to apply his general marketing
“principles” to it—the Report does not mention any marketing strategies employed by book
publishers to develop consumer recognition of certain imprints, or any discussion at all of
marketing strategy specific to the book-publishing world. 7 Yet Carpenter himself admitted that,
in order for him to provide an opinion on marketing in a particular industry, he must first analyze
that industry. (Carpenter Tr. 9:3-7.)
Carpenter’s Report and testimony merely assumes a one-size-fits-all marketing approach,
notwithstanding his own assertion that to properly assess a marketing strategy, one must account
for the specific “context” and the “differences” across industries. Because Carpenter offers zero
indicia that his opinions have any relevance in book publishing, and in fact has demonstrated that
he misunderstands the industry, his testimony is inherently unreliable and should be excluded.
See Rule 702; Tin Yat Chin, 371 F.3d at 40 (expert’s area of expertise must be comparable to the
subject matter of the testimony); Stagl, 117 F.3d at 81 (even relevant testimony must be excluded
if the witness’s “expertise is too general or too deficient”); Alfa Corp. v. OAO Alfa Bank, 475 F.
Supp. 2d 357, 364-66 (S.D.N.Y. 2007) (allowing expert to opine on brand identity in the
insurance industry based on his over 30 years of experience as a marketer in the industry in
question).

7

Carpenter does make passing reference, in a single paragraph, to “fragmentation of the
publishing industry” and the “limited resources of publishers.” (Carpenter Rep. ¶ 21.) However,
he offers no expert foundation for this industry-specific knowledge. And while Carpenter claims
that there are only “six relatively well-known” publishers, the source upon which he relies
merely calls these publishers “conglomerates,” and also identifies 3,400 medium-sized
publishers and 86,000 small publishers. (See id. ¶ 21 n. 4; “Book Industry Statistics,” Dan
Poynter’s Parapublishing.com, http://www.bookstatistics.com/sites/para/resources/statistics.cfm
(last visited Dec. 19, 2012).) In any event, even in this meager paragraph, Carpenter makes no
mention of the relevant issue for which he is offered—i.e., the marketing of books—highlighting
that he has no expertise sufficient for his opinions to be helpful to a finder of fact. See Rule 702.
8

B.

Carpenter Is Not An Expert In Trademark Law

As a separate matter, Carpenter professes to opine on: (1) the transfer of goodwill from
Family Systems to Apple; (2) secondary meaning achieved by Colby’s ibooks imprint; and (3)
likelihood of confusion. (Carpenter Rep. ¶ 9; Carpenter Rbt. ¶¶ 14-19.) However, as Carpenter
concedes, he is unqualified to opine on any of these matters and should be precluded from doing
so.
There is no doubt that Carpenter has no background in trademark law:
•

He is not a lawyer. (Carpenter Tr. 98:14-17.)

•

He has never published any articles on the subject of trademark law. (Id. 98:2224.)

•

He has never conducted a consumer survey designed to show likelihood of
confusion. (Id. 98:25-99:9.)

•

He does not hold any advanced degrees in consumer psychology. (Id. 99:5-9.)

Nonetheless, despite his having absolutely zero credentials in this field, Carpenter’s
Reports are replete with conclusions premised upon trademark law. For example, Section IV.F
of Carpenter’s Report is entitled “Alleged Confusion” and includes statements such as “these emails do not support Plaintiffs’ claims that consumers are likely to believe that Apple is the
source of Plaintiffs’ products,” and “the likelihood of confusion is extremely low.” (Carpenter
Rep. ¶¶ 110, 116.) However, when asked about whether he was familiar with the concept of
confusion by affiliation in trademark law, and whether he had applied it in his Report, Carpenter
answered that he’d “heard the term before,” but he used “the word ‘confusion,” . . . not
‘confusion by affiliation,’” and was simply describing his view that the writers of certain emails
“were not confused.” (Carpenter Tr. 103:4-11, 103:21-104:3.) Not only does this highlight that
Carpenter is (to put it generously) unclear on the basics of trademark law, but it also

9

demonstrates that his “opinions” are no different from those of a layperson. The finder of fact in
this case is just as able to read emails and arrive at her own conclusions as to the state of mind of
the author.
Nor has Carpenter conducted a survey or study to measure likelihood of confusion and on
which he could base his conclusions. Because Carpenter’s expressions of opinions such as these
are not based on any specialized knowledge or scientific study, and so in no way aid the finder of
fact, such testimony must be excluded. Rules 403, 702; Nimely, 414 F.3d at 396-97 (“[W]hen an
expert opinion is based on data, methodology, or studies that are simply inadequate to support
conclusions reached, Daubert and Rule 702 mandate the exclusion of that unreliable opinion
testimony.”) (internal quotations and citations omitted).
Similarly, Carpenter’s entire Rebuttal consists of opinions on legal issues for which he
has no qualifications—namely assignment of the goodwill associated with Family System’s
trademark and development of secondary meaning in Colby’s imprints. See, e.g., 3 J. Thomas
McCarthy, McCarthy on Trademarks and Unfair Competition § 18:2 (noting that the Lanham
Act’s prohibition on naked trademark assignment derives from the common law); Perfect Fit
Industries, Inc. v. Acme Quilting Co., Inc., 618 F.2d 950, 952-53 (2d Cir. 1980) (secondary
meaning is a trademark doctrine). It is telling that Apple’s proposed rebuttal expert to the
opinions offered by Plaintiffs’ expert Robert T. Scherer—a trademark lawyer and former PTO
examiner with over 30 years of experience—is Carpenter, a marketing expert with zero
trademark or legal experience. 8 Although Carpenter claims that he approaches these topics from
a “marketing perspective,” (Carpenter Tr. 135:13-17), these are, at base, legal issues, and
8

This is even more curious given that Apple has submitted expert reports relating to other
issues in the case from two acknowledged experts in trademark law, Philip G. Hampton and
Siegrun Kane, both of whom tellingly do not offer opinions about the assignment in gross
specific to the facts of this case, even though they opined on other matters.
10

Carpenter’s deposition testimony makes clear that his opinions are, at best, uninformed and
meaningless, and at worst, likely to confuse.

For example, when asked to explain what

marketing has to do with the validity of a trademark assignment, Carpenter answers:
Well, as I understand it, and not being a lawyer, that one of the issues in this
trademark assignment is the transfer of what . . . legally what is known as
“goodwill.” In the marketing world, we don’t refer to it as “goodwill,” but we
have a corresponding term for this entitled “brand equity,” . . . and so I was asked
to look and see whether Apple engaged in activities which transferred the brand
equity from Family Systems to Apple. . . .
(Carpenter Tr. 135: 21-136:12.)
Carpenter’s answer perfectly demonstrates his lack of qualifications to opine on legal
issues. First, he admits that the concept at issue is a legal concept. Then, without any support,
he equates this legal concept (with which he has no expertise) to a marketing concept. 9 Finally,
he purports to have explored this marketing concept in order to arrive at a conclusion as to the
legal concept with which he admittedly has no familiarity.
Because Carpenter’s entire Rebuttal, as well as large sections of his Report, are similarly
baseless opinion on trademark-law concepts on which he has no expertise, Carpenter must be
precluded from testifying as an expert on any facet of trademark law, including likelihood of
confusion, secondary meaning, and validity of assignment.

See, e.g., Price v. Fox Entm’t

Group, 499 F. Supp. 2d 382, 389 (S.D.N.Y. 2007) (excluding expert’s report where expert had
opined on principles of copyright law, but had admitted at deposition that he did not understand
the meaning of those principles); see also Ralston v. Smith & Nephew Richards, Inc., 275 F.3d

9

This is something of a Catch-22. Without knowledge of the legal concept, how could
Carpenter know what the marketing corollary would be? And if he was indeed knowledgeable
enough about trademark law to understand terms of art such as “goodwill” and transfer this into
corresponding marketing-speak, he would not need to opine on these matters from a “marketing
perspective” in the first place.
11

965, 969 (10th Cir. 2001) (concluding proffered expert was not qualified on a particular topic
where expert admitted that she lacked expertise on that subject).
CONCLUSION
For the foregoing reasons, the Court should exclude Carpenter’s Reports and preclude
Carpenter from providing any testimony, including any affidavits, declarations, or reports, for all
purposes, including trial.

Dated: New York, New York
December 21, 2012
Respectfully submitted,
ALLEGAERT BERGER & VOGEL LLP

By:

s/ Partha P. Chattoraj
Partha P. Chattoraj
David A. Shaiman

111 Broadway, 20th Floor
New York, New York 10006
[phone]
Attorneys for Plaintiffs J.T. Colby & Co., Inc. d/b/a
Brick Tower Press, J. Boylston & Co., Publishers,
LLC, and ipicturebooks, LLC
Of counsel:
Robert L. Raskopf
Claudia T. Bogdanos
QUINN EMANUEL URQUHART & SULLIVAN, LLP
51 Madison Avenue, 22nd Floor
New York, New York 10010
Telephone: [phone]
Facsimile: [phone]

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