Eolas Technologies Incorporated v. Adobe Systems Incorporated et al

Filing 1050

MOTION FOR LEAVE TO SUPPLEMENT THEIR P.R. 3-1 INFRINGEMENT CONTENTIONS WITH RESPECT TO FRITO-LAY, INC.'S HAPPINESS.LAYS.COM by Eolas Technologies Incorporated. (Attachments: # 1 Declaration of Thomas Fasone III, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Text of Proposed Order)(McKool, Mike)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
Eolas Technologies Incorporated,
Plaintiff,
vs.
Adobe Systems Inc., et al.,
Defendants.

§
§
§ Civil Action No. 6:09-CV-00446-LED
§
§
§
§ JURY TRIAL
§
§

PLAINTIFFS’ MOTION FOR LEAVE TO SUPPLEMENT THEIR
P.R. 3-1 INFRINGEMENT CONTENTIONS WITH RESPECT TO
FRITO-LAY, INC.’S HAPPINESS.LAYS.COM

TABLE OF CONTENTS
I.

INTRODUCTION ...............................................................................................................1

II.

BACKGROUND .................................................................................................................2

III.

ARGUMENT.......................................................................................................................5
A.

B.

It is Important that Infringement By Frito-Lay’s
Happiness.lays.com Be Addressed in This Litigation .............................................7

C.

There is No Prejudice to Frito-Lay in Being Held
Accountable for Its Latest Infringement Activity Or Its
Failure to Identify This Product Earlier in Discovery. ............................................7

D.
IV.

Frito-Lay Should Have Provided Discovery As To
Happiness.lays.com In Response to Plaintiffs’ Prior
Requests ...................................................................................................................6

A Continuance is Unnecessary Because There is No
Prejudice ..................................................................................................................9

CONCLUSION....................................................................................................................9

i

TABLE OF AUTHORITIES
Page(s)
CASES
Forgent Networks, Inc. v. Echostar Techs. Corp.,
No. 6:06-cv-208, 2006 U.S. Dist. LEXIS 88872 (E.D. Tex. Dec. 8, 2006) ..............................9
Honeywell Int’l, Inc. v. Acer Am. Corp.,
655 F. Supp. 2d 650 (E.D. Tex. 2009)...................................................................................6, 8
MacLean-Fogg Co. v. Eaton Corp.,
No. 2:07-CV-472, 2008 U.S. LEXIS 78301 (E.D. Tex. Oct. 6, 2008)..............................5, 6, 9
MASS Engineered Design, Inc. v. Ergotron, Inc.,
No. 2:06-CV-272, 2008 U.S. Dist. LEXIS 35577 (E.D. Tex. Apr. 30, 2008)...................6, 7, 9
NIDEC Corp. v. LG Innotek Co.,
No. 6:07-cv-108, 2009 U.S. Dist. LEXIS 106667 (E.D. Tex. Sept. 2, 2009)............................7
Orion IP, LLC v. Staples, Inc.,
407 F. Supp. 2d 815 (E.D. Tex. 2006).......................................................................................7
Reedhycalog UK, Ltd. v. United Diamond Drilling Servs., Inc.,
2008 U.S. Dist. LEXIS 93177 (E.D. Tex. Oct. 3, 2008) ...........................................................8
S & W Enters., L.L.C. v. Southtrust Bank of Ala., NA,
315 F.3d 533 (5th Cir. 2003) .....................................................................................................5
Tantivy Comms. Inc. v. Lucent Techs., Inc.,
No. 2:04-CV-79, 2005 U.S. Dist. LEXIS 29981 (E.D. Tex. Nov. 1, 2005) ..............................7

OTHER AUTHORITIES
Fed. R. Civ. P. 16(b). .......................................................................................................................5
Local Rule CV-7 ..............................................................................................................................5
Patent Rule 3-1.................................................................................................................................2
Patent Rule 3-1(c) ............................................................................................................................8
Patent Rule 3-2.................................................................................................................................3
Patent Rule 3-4(a) ............................................................................................................................8
Patent Rule 3-6.............................................................................................................................1, 5

ii

I.

INTRODUCTION
Pursuant to Patent Rule 3-6, Plaintiffs The Regents of the University of California and

Eolas Technologies Incorporated (collectively “Plaintiffs”) respectfully request leave to
supplement their infringement contentions as to Defendant Frito-Lay, Inc. (“Frito-Lay”).
Plaintiffs bring this motion before the Court styled as a motion to supplement infringement
contentions, believing this to be the best vehicle to address the parties’ dispute as to whether the
webpage happiness.lays.com is properly part of the case. Plaintiffs believe that the webpage
happiness.lays.com is properly a part of the case by virtue of their originally served infringement
contentions. Accordingly, Plaintiffs seek Frito-Lay to provide discovery related to this webpage.
Frito-Lay disagrees and has refused to produce or answer discovery beyond that directed to the
specific webpage fritolay.com as that is the webpage URL specifically called out in Plaintiffs’
originally served infringement contentions.

Plaintiffs addressed Frito-Lay’s concerns by

preparing supplemental infringement contentions that now specifically call out the webpage
happiness.lays.com. The theory of infringement in the supplemental infringement contentions is
the same as those articulated in the infringement contentions Plaintiffs originally served. FritoLay now opposes Plaintiffs’ motion for leave to supplement its infringement contentions.
Plaintiffs believe their reasons for bringing this motion satisfy the good cause standard
for supplementing infringement contentions. First, Frito-Lay launched the happiness.lays.com
webpage after Plaintiffs filed this case and served their P.R. 3-1 contentions. Second, since
learning of the happiness.lays.com webpage, Plaintiffs have repeatedly requested discovery
related to the same that Frito-Lay should already be providing. These requests have been met
without any cooperation from Frito-Lay.

Third, Plaintiffs requested discovery related to

happiness.lays.com as soon as it learned of the webpage. Fourth, and finally, any prejudice to

1

Frito-Lay as a result of its own late production of discovery related to happiness.lays.com is
minimal given that: (a) the infringement theories as to happiness.lays.com are the same as those
Plaintiffs originally presented with respect to the accused features found on fritolay.com; (b)
failing to provide the discovery required by the Court’s order and the discovery rules is FritoLay’s own doing; (c) as of the filing of this motion, there will be no need to retrace discovery as
Frito-Lay has not provided a single fact or corporate witness for deposition and has not updated
its interrogatory responses since May 2011; and (d) failing to include happiness.lays.com in this
case would needlessly require duplicative litigation between the same parties, as the same
infringement theories across two webpages are to be applied to the same patents. In light of the
lack of any genuine prejudice to Frito-Lay, and in light of the good cause set forth herein,
Plaintiffs respectfully request that the Court grant Plaintiffs’ motion for leave, and that the Court
order Frito-Lay to produce the requested discovery related to happiness.lay.com.
II.

BACKGROUND
Plaintiffs have accused Frito-Lay of infringing U.S. Patent Nos. 5,838,906 and 7,599,985

by using the patented inventions on its website to allow for embedded interactive objects on
webpages. Plaintiffs brought suit against Frito-Lay and other defendants on October 5, 2009.
Plaintiffs complaint specifically identifies “web pages and content to be interactively presented
in browsers, including without limitation, the web pages and content accessible via www.fritolay.com.”1
On March 5, 2010, Plaintiffs served infringement contentions on Frito-Lay pursuant to
P.R. 3-1.2 Plaintiffs’ own investigation reveals that Frito-Lay launched its happiness.lays.com

1

Dkt. No. 1, ¶40 (emphasis added).

2

Exhibit 1, attached to the Declaration of Tom Fasone in Support of Plaintiffs Motion for
Leave to Supplement Their P.R. 3-1 Infringement Contentions With Respect To
2

webpage shortly thereafter, on March 15, 2010.3 On April 2, 2010, Plaintiffs sent Frito-Lay a
Request for Production Pursuant to Paragraph 11 of the Discovery Order,4 which identified the
accused products to mean, again, without limitation:
The websites (including the servers hosting those websites) and functionality identified in
the charts titled “906 - Frito-Lay - Chart 1” and “985 - Frito-Lay - Chart 1” attached to
Eolas’ P.R. 3-2 submissions. This includes, but is not limited to the following:
Frito-Lay.com

This request sought numerous categories of documents related to the Accused Products,
including documents that show customer use of the accused features (Request 47), documents
identifying which web server technology powers the Accused Products (Request 48), and
manuals, web pages, on-line videos related to the Accused Products (Request 50).5 Even upon
receiving these and other discovery requests, at no time did Frito-Lay identify its
happiness.lays.com webpage.
Between July 7, 2011 and August 5, 2011 proceedings between Plaintiffs and Frito-Lay
were stayed pending an attempt at settlement, which was ultimately unsuccessful.6 After the
stay, discovery was extended until November 9, 2011.7 It was during this stay that Plaintiffs first
learned of Frito-Lay’s happiness.lays.com webpage.
Plaintiffs served interrogatories on Frito-Lay on September 12, 2011, seeking responses
Happiness.lays.com (“Fasone Declaration”). All exhibits in this motion are attached to the
Fasone Declaration.
3

Frito-Lay has not provided any documents or other discovery to confirm this. See Fasone
Declaration, ¶2; Exhibit 11.
4
Exhibit 2 (“Request for Production Pursuant to Paragraph 11 of the Discovery Order”
(April 2, 2010) (emphasis added)).
5
Id. at 8-9 (response nos. 47-50).
6

See Dkt. Nos. 854, 898, and 949; see also Dkt. Nos. 757 and 789 (staying activities
pursuant to the parties’ request).
7

Dkt. No. 979 (Docket Control Order), at 3.

3

intended to include happiness.lays.com explicitly.8 These interrogatories were amended on
September 28, 2011 to correct a typographical error in the URL for the webpage
happiness.lays.com.9 After serving these interrogatories, Plaintiffs requested updated discovery
responses during a telephone call with Frito-Lay’s counsel on September 14, 2011, and again in
an e-mail on September 23, 2011.10 Frito-Lay responded on September 27, 2011 that Plaintiffs
had not properly pled a claim against “happiness.lays.com,” and that because Plaintiffs had not
specifically identified what features of the webpage infringe Plaintiffs’ patents, it would not
know which documents to produce.11
While preparing for an informal meet and confer on outstanding discovery issues,
Plaintiffs explained to Frito-Lay that “the language in [Plaintiffs’] PICs and the definitions set
forth in its discovery mechanisms served to date cover “happiness.lays.com.”12 The parties
discussed the issue once again on October 6, 2011, after which Frito-Lay responded on October
11, 2011, maintaining its refusal to provide discovery as to happiness.lays.com on the grounds of
prejudice:
To start from the beginning and have to produce documents, conduct an investigation into
the new accused product, identify witnesses, and develop our defenses at a time when the
concentration is on the defense of the only accused product identified, i.e.
www.fritolay.com, prejudices our ability to prepare for trial on the accused product.13
Though maintaining that the webpage was already in the case by virtue of their originally

8

Exhibit 5 (“Plaintiff’s Second Set of Interrogatories (No. 3) To Be Answered By FritoLay,” (Sept. 12, 2011).
9
Exhibit 6 (“Plaintiff’s First Amended Second Set of Interrogatories (No. 3) To Be
Answered By Frito-Lay,” (Sept. 28, 2011).
10
Exhibit 7 (e-mail from T. Fasone to J. Yee and J. Joyner (Sept. 23, 2011, 9:15 AM)).
11
Exhibit 8 (e-mail from J. Yee to T. Fasone (Sept. 27, 2011)).
12
Exhibit 4.
13
Exhibit 9 (e-mail from J. Yee to H. Engelmann and T. Fasone (Oct. 11, 2011 7:49 PM),
in response from H. Engelmann on Oct. 12, 2011).

4

served contentions — as a response to Frito-Lay’s articulated concern — Plaintiffs thereafter
provided Frito-Lay with infringement contention charts that specifically include the
happiness.lays.com URL on October 14, 2011.14 These charts advance the same infringement
theories found in Plaintiffs’ originally served infringement contentions. The parties then met and
conferred pursuant to Local Rule CV-7 on October 20, 2011, at which time Frito-Lay maintained
its refusal to provide discovery related to happiness.lays.com.
III.

ARGUMENT
Plaintiffs believe that even without supplementing its originally served infringement

contentions, the happiness.lays.com webpage is already in the case and related discovery should
be provided. The webpage at happiness.lays.com is part of Frito-Lay’s website, which is the
subject of the originally served infringement contentions.15

The fact that the URL of the

webpage happiness.lays.com lacks the domain “fritolay.com” does not exclude it from falling in
the ambit of “Frito-Lay, Inc.’s website.” Rather, upon inspection webpages across both the
“lays.com” and “fritolay.com” domains are obviously part of Frito-Lay’s website. To wit, if you
direct your web browser to the website “lays.com” you will find that Frito-Lay automatically
redirects you to the webpage with the URL “fritolay.com.” Even more to the point, the press
release Frito-Lay released for the “Happiness Exhibit” on happiness.lays.com was provided on a
“fritolay.com” webpage, not a “lays.com” webpage.

16

Frito-Lay’s refusal to provide discovery

related to happiness.lays.com has prompted this motion.
14

Exhibit 10 (letter from T. Fasone to J. Yee and J. Joyner (October 14, 2011) (exhibits
omitted)).
15
See Exhibit 1 (“Frito-Lay, Inc.’s website Frito-Lay.com, the website itself, and/or the
servers hosting that Website. . . .”).
16

See Exhibit 11 (Frito-Lay’s Press Release entitled “Lay’s Unveils Happiness Exhibit
Spotlighting Simple Moments of Happiness as Captured in Consumer Photos,” dated March 15,
2011 available at www.fritolay.com/about-us/press-release-20100315.html).

5

Courts typically consider four factors in determining whether a party has met the good
cause requirement to supplement infringement contentions provided under Fed. R. Civ. P. 16(b)
and P.R. 3-6: “(1) the explanation for the party’s failure to meet the deadline, (2) the importance
of what the Court is excluding, (3) the potential prejudice if the Court allows the thing that would
be excluded, and (4) the availability of a continuance to cure such prejudice.”17 Here, the first
three factors clearly weigh in favor of granting Plaintiffs leave to supplement, and the fourth is
inapplicable.
A.

Frito-Lay Should Have Provided Discovery As To Happiness.lays.com In
Response to Plaintiffs’ Prior Requests

As set forth above, Plaintiffs have been diligent in pursuing discovery and in developing
its infringement theories with respect to Frito-Lay’s webpages that use the accused features.
Plaintiffs have been entitled to discovery related to happiness.lays.com even prior to bringing the
webpage to the attention to Frito-Lay. Happiness.lays.com is a reasonably similar product to the
webpage product found at fritolay.com, which has already been specifically called out in
Plaintiffs’ infringement contentions.18
However, in the face of Plaintiffs’ attempts to obtain discovery, Frito-Lay introduced and
continues to maintain a webpage with features it knew Plaintiffs had accused of infringement in
their infringement contentions. Not only has Frito-Lay ignored its discovery obligations as they
pertain to happiness.lays.com, but it has forced Plaintiffs to expend needless time and effort to
obtain this discovery. Plaintiffs’ conduct has been diligent since it became aware of Frito-Lay’s
happiness.lays.com webpage and Frito-Lay should not be heard to say otherwise given the dearth
17

MacLean-Fogg Co. v. Eaton Corp., No. 2:07-CV-472, 2008 U.S. LEXIS 78301, at *4
(E.D. Tex. Oct. 6, 2008); see also S & W Enters., L.L.C. v. Southtrust Bank of Ala., NA, 315 F.3d
533, 535–36 (5th Cir. 2003).
18

See Honeywell Int’l, Inc. v. Acer Am. Corp., 655 F. Supp. 2d 650, 656-58 (E.D. Tex.
2009) (permitting discovery and supplementation of infringement contentions to include
reasonably similar products).

6

of discovery it has provided.
B.

It is Important that Infringement By Frito-Lay’s Happiness.lays.com Be
Addressed in This Litigation

Happiness.lays.com utilizes Plaintiffs’ patented technologies in materially the same way
as the webpage fritolay.com, which is indisputably already within this litigation. Trying issues
related to all of Frito-Lay’s webpages as part of this case will reduce the risk of inconsistent
judgments as between the two and will reduce the costs and burdens on the Court and the parties
of having to address this infringement in a later lawsuit. The alternative would require Plaintiffs
to initiate duplicative litigation on the same patents and the same theories of infringement against
Frito-Lay, when it can be addressed now.19
C.

There is No Prejudice to Frito-Lay in Being Held Accountable for Its
Infringement Activity Or Its Failure to Identify This Product Earlier in
Discovery.

Frito-Lay will not be unduly prejudiced by inclusion of the happiness.lays.com webpage
into this litigation.20 Plaintiffs’ discovery requests have called for information related to FritoLay’s webpages beyond those with the URL “fritolay.com,” specifically requesting information
relevant to happiness.lays.com. In response, Frito-Lay has chosen to bury its head in the sand by
producing only discovery related to the webpage with its URL specifically written out in the
complaint and in the originally served infringement contentions.21 However, the function of
infringement contentions is not to list every instance of infringement on Frito-Lay’s website.
This Court has found that "[in] dealing with something like a website, it would be unrealistic to

19

See MASS Engineered, 2008 U.S. Dist. LEXIS 35577, at *16; NIDEC Corp. v. LG
Innotek Co., No. 6:07-cv-108, 2009 U.S. Dist. LEXIS 106667, at *6 (E.D. Tex. Sept. 2, 2009).

20

Id.

21

See Tantivy Comms. Inc. v. Lucent Techs., Inc., No. 2:04-CV-79, 2005 U.S. Dist. LEXIS
29981, at *11 (E.D. Tex. Nov. 1, 2005) (“A party may not conduct discovery by “lay[ing] behind
the log and avoiding their discovery obligations.”).

7

expect plaintiffs to provide screen shots for every possible manifestation of the alleged
infringment.

Instead, plaintiffs should provide specific theories of infringement and

representative examples of the alleged infringement so as to give defendants fair notice of
infringement beyond that which is provided by the mere language of the patent claims
themselves."22 Plaintiffs have clearly met this standard in the case at hand. Moreover, the law
imposes a broader duty as to reasonably similar products that Frito-Lay has not satisfied.23
As between the parties, Frito-Lay has been in the best position to know what other
webpages on its website beyond the fritolay.com URL used the accused functionality. Yet,
Frito-Lay has not been forthcoming in providing this discovery.24 Not only should Frito-Lay
have produced documents and discovery responses related to happiness.lays.com once the site
was created, but it should have been updating this discovery on a rolling basis along with its
other discovery (documents, depositions and interrogatory responses), all of which remain
outstanding.25
22

26

As a result of these deficiencies, Frito-Lay cannot now claim prejudice from

See Orion IP, LLC v. Staples, Inc., 407 F. Supp. 2d 815, 817 (E.D. Tex. 2006) (Davis, J.).

23

See P.R. 3-4(a) (duty to produce documents sufficient to show operation of aspects or
elements of accused instrumentality identified by patent claimant in P.R. 3-1(c) charts);
Honeywell Int’l, Inc. v. Acer Am. Corp., 655 F. Supp. 2d 650, 656-58 (E.D. Tex. 2009) (duty to
provide discovery as to reasonably similar products); see also Dkt. No. 247 ¶¶ 2(B) (duty to
disclose), ¶10 (duty to supplement immediately)).

24

See Reedhycalog UK, Ltd. v. United Diamond Drilling Servs., Inc., 2008 U.S. Dist.
LEXIS 93177, at **6-7 (E.D. Tex. Oct. 3, 2008) (“This Court adheres to the policy of liberal,
open and forthright discovery and will not tolerate gamesmanship.”).
25

Joint Agreed Discovery Order §2(B) (April 2, 2010) (Dkt. 247) (“After disclosure is
made pursuant to this order, each party is under a duty to supplement or correct its disclosures
immediately if the party obtains information on the basis of which it knows that the information
disclosed was either incomplete or incorrect when made, or is no longer complete or true.”);
Honeywell, 655 F. Supp. 2d at 661 (ordering party to supplement interrogatory responses and to
produce a corporate representative to provide relevant testimony).
26
There is no prejudice to Frito-Lay in Plaintiffs seeking discovery related to
happiness.lays.com as related to revisiting previous discovery because, in effect, discovery has
already stalled. To date, Frito-Lay has not produced a single fact or corporate witness for
deposition nor offered a specific date for any deposition. See Exhibit 3 (e-mail from T. Fasone
to J. Joyner, J. Yee and D. McSwane (Oct. 6, 2011)). Frito-Lay has not updated its document
8

having to provide discovery related to happiness.lays.com.
D.

A Continuance is Unnecessary Because There is No Prejudice

The Court need not consider the fourth factor, as allowing supplemental infringement
contentions does not prejudice Frito-Lay in any way that it did not bring on itself by hiding its
head in the sand.27

Given that the same infringement theory is advanced as between

happiness.lays.com and fritolay.com, there should be more than enough time for Frito-Lay to
provide the requested discovery and prepare for trial now scheduled for February 2011.
IV.

CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that the Court grant its motion to

supplement their infringement contentions as to happiness.lays.com URL, and to compel FritoLay to provide and supplement its discovery related to this webpage accordingly.

production since June 15, 2011 — prior to the stay between the parties. All but eight of the
documents Frito-Lay has produced in this entire litigation are from the same custodian, with only
a single document produced from any individual identified as having knowledge in Frito-Lay’s
Initial Disclosures. See Exhibit 4 (e-mail from T. Fasone to J. Yee (Sept. 28, 2011)). Finally,
Frito-Lay last updated, answered or supplemented its interrogatory responses in May, 2011. Id.
27

See MacLean-Fogg, 2008 U.S. Dist. LEXIS 78301, at *7; MASS Engineering, 2008 U.S.
Dist. LEXIS 35577, at *16-17; Forgent Networks, Inc. v. Echostar Techs. Corp., No. 6:06-cv208, 2006 U.S. Dist. LEXIS 88872, at *11 (E.D. Tex. Dec. 8, 2006).

9

Dated: October 24, 2011.

MCKOOL SMITH, P.C.
/s/ Mike McKool
Mike McKool
Lead Attorney
Texas State Bar No. 13732100
[e-mail]
Douglas Cawley
Texas State Bar No. 04035500
[e-mail]
Holly Engelmann
Texas State Bar No. 24040865
[e-mail]
J.R. Johnson
Texas State Bar No. 24070000
[e-mail]
MCKOOL SMITH, P.C.
300 Crescent Court, Suite 1500
Dallas, Texas 75201
Telephone: [phone]
Telecopier: [phone]
Kevin L. Burgess
Texas State Bar No. 24006927
[e-mail]
Josh W. Budwin
Texas State Bar No. 24050347
[e-mail]
Gretchen K. Curran
Texas State Bar No. 24055979
[e-mail]
Matthew B. Rappaport
Texas State Bar No. 24070472
[e-mail]
MCKOOL SMITH, P.C.
300 West Sixth Street, Suite 1700
Austin, Texas 78701
Telephone: [phone]
Telecopier: [phone]

10

Robert M. Parker
Texas State Bar No. 15498000
[e-mail]
Robert Christopher Bunt
Texas Bar No. 00787165
[e-mail]
Andrew T. Gorham
Texas State Bar No. 24012715
[e-mail]
PARKER, BUNT & AINSWORTH, P.C.
100 E. Ferguson, Suite 1114
Tyler, Texas 75702
[phone]
[phone]- Facsimile
ATTORNEYS FOR PLAINTIFF
EOLAS TECHNOLOGIES INC.
AND THE REGENTS OF THE
UNIVERSITY OF CALIFORNIA
CERTIFICATE OF CONFERENCE
The undersigned certifies that the parties have complied with Local Rule CV-7(h)’s meetand-confer requirement.

On October 20, 2011, John Campbell, Tom Fasone, and Holly

Engelmann, counsel for Plaintiffs conducted a personal conference by telephone with Jeffrey
Yee, Jeff Joyner and Doug McSwane, counsel for Frito-Lay. By prior agreement between the
parties, John Campbell served as lead counsel for Plaintiffs during this conference. The
discussions ended conclusively in an impasse, leaving an open issue for the Court to resolve.
Frito-Lay opposes this motion.
/s/ Thomas Fasone III
Thomas Fasone III

11

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was filed electronically in
compliance with Local Rule CV-5(a). As such, this document was served on all counsel who
have consented to electronic services pursuant to Local Rule CV-5(a)(3)(A), on October 24,
2011.
/s/ Thomas Fasone III
Thomas Fasone III

12