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Selling shares? Where's the volume? You call two days of a million shares traded a lot?
That happened long ago.
I think you're right but don't you think the volume should be heavier?
May seem like a lot cause we rarely trade. Only talking about 9 grand so far today.
Somebody really wants out. Worst part of a non trading stock. Share price takes a hit.
We had only two pr's 2nd quarter about work...awarded the hilton project and completion of the sports arena. Lets hope the financials soon to be out have some decent numbers.
With this lawsuit, I want JNSH to win just to not have the lawyer expense(I expect 10's of thousands). Maybe this is the volume we've been seeing in CCGI. The best thing I like about the lawsuit is that JNSH is the defendant. They have to prove we don't have the chicago contract.
That's true. Be nice if we could see 2M trade today.
With no info from the company in 2 months, frustration leads to selling.
I think someone is just trying to get this turd to trade.
I have no idea. Don't see the reason for multiple lawyers.
I think so. Here's the filing. More like a form. Didn't copy well.
Hogan Marren, Ltd. is the Firm.
321 North Clark Street, Suite 1301
Chicago, Illinois 60654
6300065
U.S. DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
ATTORNEY APPEARANCE FORM
NOTE: In order to appear before this Court an attorney must either be a member in good
standing of this Court??s general bar or be granted leave to appear pro hac vice as provided for
by Local Rules 83.12 through 83.14.
In the Matter of Case Number:
AN APPEARANCE IS HEREBY FILED BY THE UNDERSIGNED AS ATTORNEY FOR:
NAME (Type or print)Nicholas M. Hudalla
SIGNATURE (Use electronic signature if the appearance form is filed electronically)
s/
FIRM
STREET ADDRESS
CITY/STATE/ZIP
ID NUMBER 6300065 TELEPHONE NUMBER
ARE YOU ACTING AS LEAD COUNSEL IN THIS CASE? YES NO
ARE YOU ACTING AS LOCAL COUNSEL IN THIS CASE? YES NO
ARE YOU A MEMBER OF THIS COURT??S TRIAL BAR? YES NO
IF THIS CASE REACHES TRIAL, WILL YOU ACT AS THE TRIAL ATTORNEY? YES NO
IF THIS IS A CRIMINAL CASE, CHECK THE BOX BELOW THAT DESCRIBES YOUR STATUS.
RETAINED COUNSEL APPOINTED COUNSEL
Car Charging Group, Inc. and 350 Holdings, LLC
v.
JNS Holding Corporation and JNS Power & Control
Systems, Inc.
13-cv-3124
JNS Holding Corporation and JNS Power & Control Systems, Inc.
Nicholas M. Hudalla
Nicholas M. Hudalla
Hogan Marren, Ltd.
321 North Clark Street, Suite 1301
Chicago, Illinois 60654
6300065 312-946-1800
?
?
?
?
Case: 1:13-cv-03124 Document #: 39 Filed: 07/24/13 Page 1 of 1 PageID #:366
JNSH added Nicholas M. Hudalla as an attorney. Posted today on pacer.
I think you're right but until we see more volume, can't be more than one person.
The spread is sickening.
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CAR CHARGING GROUP, INC., a
Nevada corporation, 350 HOLDINGS,
LLC, a Florida limited liability company
and 350 GREEN, LLC, a Virginia
limited liability company,
v. Plaintiffs,
JNS HOLDING CORPORATION,
a Delaware corporation, and
JNS POWER & CONTROL
SYSTEMS, INC., an Illinois
Corporation,
Defendants.
(Consolidated With)
JNS POWER & CONTROL SYSTEMS,
INC., an Illinois Corporation,
Plaintiffs,
v.
350 Green, LLC, a Virginia limited
liability company
Defendant.
)
Case No.: 13-cv-03124
(Consolidated with)
Case No.: 13-cv-04020
Hon. Elaine Bucklo
350 GREEN, LLC’S RESPONSE IN OPPOSITION TO JNS POWER & CONTROL
SYSTEMS, INC.’S MOTION TO STRIKE CERTAIN AFFIRMATIVE DEFENSES
[D.E.#24]
Come now, 350 Green, LLC (“350 Green”), by and through their undersigned counsel,
and file their Response in Opposition to Defendant JNS Power & Control Systems, Inc. (“JNS
Case: 1:13-cv-04020 Document #: 30 Filed: 07/22/13 Page 1 of 11 PageID #:1732
Power”)’s Motion to Strike Certain Affirmative Defenses [D.E. #24], and as grounds would state
as follows:
I. Introduction
As set forth more fully in the numerous filings that the parties to this litigation have
submitted in the consolidated cases before this Court, the instant consolidated litigation centers
on the validity of an Asset Purchase Agreement (the “APA”). The APA executed between 350
Green and JNS Power on or about April 17, 2013, in an attempt by JNS Power’s to purchase
certain assets of 350 Green despite full knowledge and awareness that 350 Green had already
contracted to sell these same assets to350 Holdings, LLC (“350 Holdings”) an affiliated entity of
Car Charging Group, Inc. (“CCGI”) (collectively, the “CCGI entities”) via a prior Equity
Exchange Agreement whereby 350 Green had agreed to sell all of its membership equity and the
company’s assets to 350 Holdings. As Plaintiffs in the underlying action, CCGI, 350 Holdings
and 350 Green have sought, in part, to have this Honorable Court to declare the APA void as a
matter of law, in that the APA was executed during the period subsequent to the execution but
prior to the closing under the Equity Exchange Agreement. JNS Power responded to the action
filed by the CCGI Entities by filing an entirely new action as of May 30, 2013 against 350
Green, alleging in part, that 350 Green had defaulted under the terms of the APA thereby
entitling JNS Power to seek specific performance under its terms as well as indemnification for
legal fees incurred as a result of such alleged default.
On June 11, 2013, JNS Holdings and JNS Power filed a Motion for Relatedness Pursuant
to Local Rule 40.4 [D.E. #21], seeking that this Court find that CCGI and 350 Holdings’ action
was related to the action filed by JNS Power against 350 Green. On that same day, CCGI and
350 Holdings filed a Motion for Reassignment and Consolidation Pursuant To L.R. 40.4 And
Case: 1:13-cv-04020 Document #: 30 Filed: 07/22/13 Page 2 of 11 PageID #:1743
Fed. R. Civ. P. 42 [D.E. #23]. On June 26, 2013, over an objection by JNS Power, this
Honorable Court entered and Order granting CCGI and 350 Holdings’ motion for reassignment
and to consolidate [D.E. #31].
On June 28, 2013, after the Court consolidated the cases, JNS Power moved to dismiss
350 Green’s First, Second, Third, Fourth, Fifth, Sixth, Ninth, Tenth, Eleventh, and Twelfth
Affirmative Defenses [D.E. # 24] (the “Motion”). The crux of JNS Power’s Motion is that since
350 Green failed to adequately plead its affirmative defenses, JNS Power is prevented from
adequately responding to same since it has insufficient knowledge as to the basis of 350 Green’s
asserted affirmative defenses. As demonstrated herein, the Motion is without merit and should
be denied in its entirety. However, to the extent that this Court grants any portion of JNS
Power’s Motion, 350 Green respectfully requests that this Court permit 350 Green to amend its
affirmative defenses.
II. Standard of Review
JNS Power contends that several of 350 Green’s affirmative defenses should be struck
because (i) some of the affirmative defenses are not enumerated in the list set forth under Fed. R.
Civ. P. 8(c)(1); and (ii) some of the affirmative defenses fail to meet the pleading standards set
forth by the United States Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127
S.Ct. 1955, 1964, 167 L. Ed. 2d 929 (2007).
However, Twombly is not the legal standard applied by this Honorable Court when ruling
on a party’s motion to strike affirmative defenses. In Laporte v. Bureau Veritas North America,
Inc., 2013 U.S. Dist. 9378 (N.D. Ill. January 18, 2013), in an order denying a plaintiff’s motion
to strike a defendant’s affirmative defenses, Judge Marovich addressed the issue of the standard
for pleading affirmative defenses. This Honorable Court held that:
Case: 1:13-cv-04020 Document #: 30 Filed: 07/22/13 Page 3 of 11 PageID #:1754
Although a number of district courts agree with plaintiff's position, this
Court disagrees. This Court is among the courts that have declined to
extend the pleading requirements of Twombly and Iqbal to affirmative
defenses (see Leon v. Jacobson Transportation Co., Inc., Case No. 10 C
4939, 2010 U.S. Dist. LEXIS 123106, 2010 WL 4810600 (N.D. Ill. Nov.
19, 2010)) and will continue to be unless the Seventh Circuit or the
Supreme Court rules differently.
****
The primary reason that this Court will not require defendants to plead
affirmative defenses with enough facts to make them plausible is that the
language of the rule that sets the standard for pleading claims is different
from the language of the rule that sets the standard for pleading
affirmative defenses. Rule 8(a)(2), which applies to claims, states that "a
claim for relief must contain: . . . (2) a short and plain statement of the
claim showing that the pleading is entitled to relief." Fed.R.Civ.P. 8(a)(2)
(emphasis added). The Supreme Court relied on that italicized language
when it decided Bell Atlantic. Bell Atlantic, 550 U.S. 544, 555, 127 S. Ct.
1955, 167 L. Ed. 2d 929 (2007) ("The need at the pleading stage for
allegations plausibly suggesting (not merely consistent with) agreement
reflects the threshold requirement of Rule 8(a)(2) that the 'plain statement'
possess enough heft to 'sho[w] that the pleader is entitled to relief.'").
The rule for pleading affirmative defenses, on the other hand, does not
require a "showing that the pleader is entitled to relief." Instead, the
Federal Rules of Civil Procedure states that the answering party "must:
(A) state in short and plain terms its defenses to each claim asserted
against it." Fed.R.Civ.P. 8(b)(1)(A). Rule 8(b)(1)(A) contains no
requirement that the pleader show that its affirmative defenses have merit.
The rule requires merely a short and plain statement of what the
affirmative defense is.
In addition to the plain language of the Federal Rules, the Court has
several other reasons why it does not require that affirmative defenses be
stated with sufficient facts so as to be plausible. As this Court has said
before:
this Court respectfully disagrees with the proposition that a defendant
must include sufficient factual allegations in affirmative defenses to
make them plausible. First, the driving force behind Twombly and
Iqbal was to make it more difficult to use a bare-bones complaint to
open the gates to expensive discovery and force an extortionate
settlement. The point was to reduce nuisance suits filed solely to
obtain a nuisance settlement. The Court, though, has never once lost
sleep worrying about defendants filing nuisance affirmative defenses
and considers the risk that defendants would file nuisance defenses
sufficiently small so as not to warrant extending Twombly and Iqbal.
Case: 1:13-cv-04020 Document #: 30 Filed: 07/22/13 Page 4 of 11 PageID #:1765
Second, a plaintiff has the length of the statute of limitations to
investigate claims and ensure that it has sufficient facts to state a
plausible claim. A defendant, on the other hand, has only twenty [one]
days to file an answer. Third, the Court would like to avoid having to
rule on multiple motions to amend the answer during the course of
discovery as the defendant obtains additional information that would
support those affirmative defenses (such as mitigation of damages)
that defendant has no practical way of investigating before discovery.
The Court would also like to avoid the discovery disputes that would
inevitably develop as a defendant seeks discovery related to
affirmative defenses it had not stated in its answer. It is to everyone's
benefit to have defendant plead its affirmative defenses early, even if
defendant does not have detailed facts. Thus, the Court will not strike
any affirmative defenses for not having enough detail or for being
speculative.
Leon v. Jacobson Transportation Co. Inc., case no. 10 C 4939, 2010 U.S.
Dist. LEXIS 123106, 2010 WL 4810600 at *1 (N.D. Ill. Nov. 19, 2010).
Accordingly, the Court does not agree with plaintiff's assertion that
defendant's affirmative defenses failed to meet the pleading standard and
will not strike the affirmative defenses on that basis. Id at *4-6.
Further, as this Court noted in Van Schouwen v. Connaught Corp. 782 F. Supp. 1240,
1245 (N.D. Ill. October 11, 1991):
‘Motions to strike are generally disfavored because they are often
interposed to create a delay. See United States v. 416.81 Acres of Land,
514 F.2d 627 (7th Cir. 1975). Indeed, motions to strike can be nothing
other than distractions. If a defense is clearly irrelevant, then it will likely
never be raised again by the defendant and can be safely ignored. If a
defense may be relevant, then there are other contexts in which the
sufficiency of the defense can be more thoroughly tested with the benefit
of a fuller record -- such as on a motion for summary judgment.
Accordingly, courts are typically reluctant to decide disputed or
substantial issues of law on a motion to strike.
The Seventh Circuit has not expanded the heightened pleading standards to affirmative
defenses. 350 Green’s affirmative defenses are proper, sufficient, and meet the requirement that
they provide fair notice of the nature of the defense. As the Laporte court noted, when pleading
an affirmative defense, a pleader must: (A) state in short and plain terms its defenses to each
Case: 1:13-cv-04020 Document #: 30 Filed: 07/22/13 Page 5 of 11 PageID #:1776
claim asserted against it." Fed.R.Civ.P. 8(b)(1)(A). All of 350 Green’s affirmative defenses, of
which JNS Power is well aware, arise from CCGI and 350 Holdings’ argument that 350
Holdings’ purchase of 350 Green was valid, and therefore, 350 Green did not have authority to
enter into the APA. JNS Power’s Motion is nothing more than another attempt to create
additional layer of litigation in an attempt to distract the Court from the pertinent issue at bar,
namely the validity of the APA. As demonstrated herein, 350 Green has met this standard when
pleading its affirmative defenses. In the event this Court chooses to impose the heightened
pleading standards for affirmative defenses, 350 Green requests leave to amend its affirmative
defenses to meet the heightened standard.
III. 350 Green’s Affirmative Defenses
a. Failure to State a Claim
350 Green’s First Affirmative Defense is that JNS Power failed to state a claim upon
which relief could be granted. JNS Power has moved to strike this defense, claiming that it is not
a recognized affirmative defense. As set forth in United States v. Alacran Contr., LLC, 2011 U.S.
Dist. LEXIS 109993 *5, (N.D. Ill. September 27, 2011), “ ‘Form 30 to the Federal Rules of Civil
Procedure says it can be pled in an answer by simply stating "[t]he complaint fails to state a
claim upon which relief can be granted.’ The defense has been properly raised, and even if it had
not been, striking it would serve no purpose. "[T]he sufficiency of the defense can be more
thoroughly tested with the benefit of a fuller record." Van Schouwen, 782 F. Supp. at 1245.”
Consequently, 350 Green should be permitted to test the sufficiency of this defense with a more
complete record.
Case: 1:13-cv-04020 Document #: 30 Filed: 07/22/13 Page 6 of 11 PageID #:1787
b. Unclean Hands
350 Green’s Second Affirmative Defense, Unclean Hands should not be stuck. 350
Green’s Second Affirmative Defenses states “Plaintiff’s claims are barred against Defendant, in
whole or in part, by the doctrine of unclean hands, as Plaintiff had knowledge that Defendant had
a prior agreement with [CCGI] and [350 Holdings] but nonetheless attempted to enter into the
APA with Defendant because JNS Power is seeking equitable relief in the form of specific
performance of the APA.” [D.E.# 1, p. 13]. see, Mittlestaedt v. Gamla-Cedron Orleans, LLC,
2012 U.S. Dist. LEXIS 175808 (N.D. Ill. December 12, 2012) where this court denied a motion
to strike the affirmative defense of unclean hands that merely stated that “[t]he Affirmative
Defense in this case is that plaintiff comes to this court with unclean hands and is therefore
barred to enforce the contract that is the basis of her Complaint.” As set forth in Laporte, supra,
350 Green does not have to plead unclean hands with the same specificity set forth in Twombly.
However, to the extent that this Court chooses to impose the heightened pleading standards for
affirmative defenses and require an allegation of “bad faith,” 350 Green requests leave to amend
its affirmative defenses to meet a heightened standard.
c. Failure to Mitigate Damages
350 Green’s Third Affirmative Defense, Failure to Mitigate Damages, is not an available
affirmative defense. However, failure to mitigate damages may be a partial defense pled
affirmatively. It is well settled that “in cases where discovery has barely begun, the failure to
mitigate defense is sufficiently pled without additional facts.” Fleet Business Credit Corp. v.
National City Leasing Corp., 1999 U.S. Dist. LEXIS 19849 (N.D. Ill., December 23, 1999). In
the instant action, the parties have provided discovery responses as of the day of this response.
Case: 1:13-cv-04020 Document #: 30 Filed: 07/22/13 Page 7 of 11 PageID #:1798
Consequently, as a matter of law, this Honorable Court should deny JNS Power’s motion to
strike 350 Green’s Third Affirmative Defense, Failure to Mitigate Damages.
d. The APA is Void as a Matter of Law/ JNS Power had knowledge that 350 Green
had a prior agreement with CCGI/ Lack of Legal Capacity
350 Green’s Fourth Affirmative Defense is that the APA is void as a matter of law. 350
Green’s Fifth Affirmative Defenses is that at the time Plaintiff entered into the APA with
Defendant, Plaintiff had knowledge that Defendant had a prior agreement with CCGI and 350
Holdings. 350 Green’s Sixth Affirmative Defense is that “Plaintiff’s claims are barred against
Defendant, in whole or in part, because Defendant had no legal capacity to enter into the APA,
and Plaintiff had knowledge of same.”
These affirmative defenses are to a certain extent linked, and are not legally deficient.
JNS Power is, and has been since the inception of this case, on notice that 350 Green, CCGI and
350 Holdings have taken the position that the APA is void as a matter of law because it was
executed after the CCGI entities were to have closed on the transaction wherein the 350
Members sold their membership shares of 350 Green and all corresponding assets which were to
purportedly be sold to JNS Power under the APA to 350 Holdings. 350 Green did not have the
legal capacity to enter into the APA, because the APA was executed after the Equity Exchange
Agreement had been signed with the CCGI Entities. JNS Power’s prior knowledge of that 350
Green and the CCGI Entities were in contract prior to the execution of the APA is one of the
facts that makes the APA void as a matter of law. Consequently, 350 Green’s Fourth, Fifth and
Sixth Affirmative Defenses are adequately plead, and JNS Power’s motion to strike same should
be denied.
Case: 1:13-cv-04020 Document #: 30 Filed: 07/22/13 Page 8 of 11 PageID #:1809
e. Failure to Satisfy Conditions Precedent
350 Green’s Ninth Affirmative Defense is that “Plaintiff’s claims are barred against
Defendant, in whole or in part, for failure to satisfy conditions precedent set forth in the APA.”
Specifically, certain events required under the terms of the APA did not occur, including but not
limited to, written consent by the parties extending the closing date and obtaining consent from
the hosts for their license agreements. To the extent that this Court deems it necessary, 350
Green will amend its Ninth Affirmative Defense to add this additional information.
f. Lack of Privity of Contract
350 Green’s Tenth Affirmative Defense is a lack of privity of contract between 350
Green and JNS Power. First, contrary to the position implied by JNS Power, Fed. R. Civ. P.
8(c)(1) does not limit a party’s affirmative defenses to those listed therein. Second, there was no
privity between 350 Green and JNS Power at the time that the APA was executed because there
could be no buyer-seller relationship under the law as 350 Green could not have legally entered
into the APA because of its prior agreement with the CCGI entities, and, at the time the APA
was executed, JNS Power had knowledge of same.
g. Waiver and Estoppel
350 Green’s Eleventh Affirmative Defense is Waiver and Estoppel. 350 Green concedes
that these are separate defenses, and should be plead separately. However, 350 Green asserts
that it adequately plead an affirmative defense of waiver, as 350 Green states that “Plaintiff
waived any rights it had against Defendant when it entered into the APA knowing that Defendant
had a prior agreement with CCGI and 350 Holdings.” JNS Power is on notice as to the basis of
350 Green’s affirmative defense of waiver.
Case: 1:13-cv-04020 Document #: 30 Filed: 07/22/13 Page 9 of 11 PageID #:18110
h. Breach of Contract
Finally, JNS Power argues that 350 Green’s Twelfth Affirmative Defense, Breach of
Contract, is not adequately plead, despite the fact that 350 Green has put JNS Power on notice of
the specific section of the APA 350 Green believes was breached. This is completely
disingenuous, and highlights the futility of JNS Power’s entire Motion.
IV. Conclusion
As demonstrated by the foregoing, 350 Green, as a matter of law, has adequately set forth
all of its affirmative defenses, as same are not required to be pled with the specificity required in
affirmative counts that are alleged against a party. Consequently, this Court should deny JNS
Power’s Motion to Dismiss in its entirety.
Dated: July 22, 2013 Respectfully submitted,
Plaintiffs Car Charging Group, Inc. and
350 Holdings, LLC
By: s/Michael I. Bernstein
One of their attorneys
Michael I. Bernstein, admitted pro hac vice
The Bernstein Law Firm
1688 Meridian Avenue, Suite 418
Miami Beach, Florida 33139
Telephone: (305) 672-9544
Facsimile: (305) 672-4572
e-mail: michael@bernstein-lawfirm.com
Steven L. Baron (ARDC No. 6200868)
Natalie A. Harris (ARDC No. 6272361)
Mandell Menkes LLC – Firm No. 38081
One North Franklin Street, Suite #3600
Chicago, Illinois 60606
Telephone: (312) 251-1000
Facsimile: (312) 251-1010
e-mail: sbaron@mandellmenkes.com
e-mail: nharris@mandellmenkes.com
Case: 1:13-cv-04020 Document #: 30 Filed: 07/22/13 Page 10 of 11 PageID #:18211
CERTIFICATE OF SERVICE
The undersigned, an attorney, hereby certifies that he caused to be filed the
aforementioned document, electronically, with United States District Court for the Northern
District of Illinois, on July 22, 2013, which will be served via ECF on all counsel of record.
Would be nice to hear from the company. Been almost 2 months.
Looks like basically nothing til end of August.
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CAR CHARGING GROUP, INC. a Nevada )
Corporation and 350 HOLDINGS, LLC, )
a Florida limited liability company )
)
Plaintiffs, ) Case No. 13 CV 03124
)
v. ) Judge Elaine E. Bucklo
)
JNS HOLDING CORPORATION, )
a Delaware Corporation, and )
JNS POWER & CONTROL )
SYSTEMS, INC., an Illinois Corporation )
)
Defendants. )
)
)
JNS POWER & CONTROL SYSTEMS, INC., )
an Illinois Corporation, ) Case No. 13 CV 04020
)
Plaintiff, ) Reassigned for relatedness to
)
v. ) Judge Elaine E. Bucklo
)
350 GREEN, LLC, a Virginia limited )
liability company, )
)
Defendant. )
AGREED PROTECTIVE ORDER
Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, and for the reasons set
forth herein, IT IS HEREBY ORDERED:
1. Defined Terms. The following words and terms are defined for purposes of this
Protective Order:
1
Case: 1:13-cv-03124 Document #: 38 Filed: 07/19/13 Page 1 of 12 PageID #:354A. “Party” or “Parties” refers to Car Charging Group, Inc., 350 Holdings,
LLC, 350 Green, LLC, JNS Holding Corporation, and JNS Power & Control Systems, Inc.
B. “Lawsuits” refers to Car Charging Group, Inc., et al. v. JNS Holding
Corporation, et al. (N.D. Ill. Case No. 13 CV 03124) and/or JNS Power & Control Systems, Inc.
v. 350 Green, LLC (N.D. Ill. Case No. 13 CV 04020).
C. “Document(s)” shall include all forms of information delineated in Rules
26, 33, 34 and 45 of the Federal Rules of Civil Procedure (“Rule(s)”), including, but not limited
to, any and all written, recorded, electronic or graphic matter, produced by a Party or non-party
pursuant to discovery or agreement in the Lawsuits, and also includes deposition transcripts and
exhibits and/or any portion of any court filings that quote from or summarize any of the
foregoing.
2. Protected Information. Any Party or non-party, whether acting on its own or
through counsel, may designate any Document, thing or testimony that it produces or provides in
discovery, or in settlement communications, as “CONFIDENTIAL” or “ATTORNEY’S EYES
ONLY” to the extent such Document, thing or testimony contains or discloses information which
the Party or non-party reasonably believes justifies a CONFIDENTIAL or ATTORNEY’S EYES
ONLY designation. Without limiting the generality of the foregoing:
A. CONFIDENTIAL information is a Party’s or non-party’s:
i. confidential contracts, agreements, invoicing and purchase orders
with its clients, subcontractors, vendors and other non-parties;
ii. confidential and proprietary business and financial information,
business and financial plans and marketing plans;
2
Case: 1:13-cv-03124 Document #: 38 Filed: 07/19/13 Page 2 of 12 PageID #:355iii. confidential and proprietary technical information or
specifications;
iv. trade secrets; and
v. any other information, the public disclosure of which is likely to
have the effect of causing substantial harm to the competitive
position of the Party or non-party from whom the information is
obtained or to whom the information pertains.
B. ATTORNEY’S EYE’S ONLY information is information of such a
sensitive nature that a Party reasonably fears, in good faith, that it would, or might reasonably
have a tendency to:
i. cause harm or competitive injury to the business operations of the
disclosing Party or non-party if disclosed to the public or other
Party without the restrictions set forth herein; or
ii. provide improper advantage to others if disclosed to the public or
other Party without the restrictions set forth herein.
The information contained or disclosed in any Document, thing or testimony which has been
designated CONFIDENTIAL or ATTORNEY’S EYES ONLY in accordance with this
Protective Order shall be referred to collectively as “Protected Information”.
3. Procedure For Designating Documents. Unless the Parties agree to an alternate
procedure, any Document delivered to or served on any Party may be designated
CONFIDENTIAL or ATTORNEY’S EYES ONLY by affixing the legend “CONFIDENTIAL”
or “ATTORNEY’S EYES ONLY” to either the first page or to every page of the Document, or
by any other means in writing that reasonably informs the receiving Party of the designation
given to a Document (or group of Documents) by the producing Party. All correspondence,
legal memoranda, motion papers, pleadings and other written material which quote or refer to
the substance of any Protected Information shall also be treated as such in accordance with the
provisions of this Protective Order, and such Documents shall be marked in accordance with this
paragraph. No Document containing a confidential designation shall be copied in whole or in
3
Case: 1:13-cv-03124 Document #: 38 Filed: 07/19/13 Page 3 of 12 PageID #:356part without the “CONFIDENTIAL” or “ATTORNEY’S EYES ONLY” designation appearing
on the copy.
4. Inadvertent Failure To Designate. If a Party, through inadvertence, produces any
Protected Information without labeling or marking or otherwise designating it as
CONFIDENTIAL or ATTORNEY’S EYES ONLY in accordance with the provisions of this
Protective Order, the producing Party may give written notice to the receiving Party that the
Document or thing produced is deemed Protected Information and should be treated as such in
accordance with the provisions of this Protective Order. The receiving Party must treat such
Documents and things as Protected Information from the date such notice is received.
Disclosure of Protected Information by the receiving Party, prior to the receipt of such notice, to
persons not authorized to receive Protected Information shall not be deemed a violation of this
Protective Order; provided, however, that the receiving Party making such disclosure shall
promptly notify the producing Party in writing of all such persons to whom such prior disclosure
was made.
5. Procedure For Designating Deposition Testimony. If any Party or non-party
believes that Protected Information belonging to it has been or may be disclosed in the course of
any deposition (whether through any question, answer, colloquy and/or exhibit), then such Party
or non-party may designate the deposition, portion thereof, or exhibit as Protected Information
by stating on the record of the deposition that such deposition, portion thereof, or exhibit is
Protected Information, or by providing written notice designating the pages of the deposition
transcript as Protected Information. Where a claim of confidentiality is made at any deposition,
any Party(ies) or non-party(ies) in attendance who, by virtue of the terms of this Protective Order
do not have access to such Protected Information, shall be excluded from attendance at the
4
Case: 1:13-cv-03124 Document #: 38 Filed: 07/19/13 Page 4 of 12 PageID #:357portion or portions of the deposition at which such Protected Information will be or might be
disclosed. If any of the depositions, portions thereof, or exhibits are identified as Protected
Information, then all originals, copies and synopses thereof shall be marked in accordance with
this Protective Order.
6. Restrictions on Use and Disclosure of Protected Information. All Protected
Information obtained by, on behalf of, or from any Party or non-party through discovery in the
Lawsuits, and any summaries, abstracts, or indices thereof, shall be used by the Party who
receives such information solely for the purposes of the Lawsuits (including any enforcement or
appeal actions) and for no other purpose. Unless otherwise authorized by the designating Party
or non-party or ordered by this Court, or as required by law, court order, subpoena, or other valid
legal process, the receiving Party shall not make Protected Information public, shall not use
Protected Information in any other civil action or administrative proceeding, and shall not
disclose or divulge Protected Information which has not become public (other than in violation
hereof) to anyone except as permitted in this Protective Order. If a Party is served with a
subpoena, or is subject to law, court order or other legal process, that would or may require
disclosure of Protected Information pursuant thereto, such Party shall promptly notify the
designating Party or non-party of same so that the designating Party or non-party may elect to
take such action as it deems appropriate in connection with such law, court order, subpoena, or
other legal process. No Party or non-party shall be deemed to have violated this Protective
Order by responding in good faith to any such law, court order, subpoena, or other legal process,
so long as the Party has promptly notified the designating Party or non-party of the court order,
subpoena, or other legal process.
5
Case: 1:13-cv-03124 Document #: 38 Filed: 07/19/13 Page 5 of 12 PageID #:3587. Permitted Disclosure of Protected Information. Any information which has been
designated as Protected Information in accordance with this Protective Order shall not be
disclosed to anyone except as follows:
A. Any Protected Information that it has been marked as CONFIDENTIAL shall not
be disclosed to anyone except:
i. Independent attorneys with responsibility for this matter who are
then of record for each Party and the partners and associate
attorneys of their respective law firms;
ii. Any outside expert or consultant for each Party; provided,
however, that all such outside experts or consultants shall first
have executed an Undertaking in the form of Exhibit A attached
hereto, which Undertaking shall remain in the possession of
counsel for the Party which has retained such outside expert or
consultant;
iii. The officers, directors or other employees of the receiving Party
when, in the bona fide judgment of counsel, such disclosure is
required for the prosecution or defense of the Lawsuits; provided,
however, that each such individual shall first have executed an
Undertaking in the form of Exhibit A attached hereto, which
Undertaking shall remain in the possession of counsel of record for
the receiving Party;
iv. Law clerks, paralegals and stenographic, support and clerical
employees of the persons identified in paragraphs 7(A)(i) and (ii)
hereof whose functions require them to have access to the
Protected Information;
v. With respect to any particular Document designated as Protected
Information, any person who is named on the face of such
Document as having been its author or one of its recipients, or who
appears from other Documents or testimony to have been a
recipient of such Document;
vi. This Court, including personnel who are authorized by the Court to
review such Protected Information;
vii. Any stenographer or court reporter present in his or her official
capacity at any hearing, deposition, or other proceeding in the
Lawsuits; and
6
Case: 1:13-cv-03124 Document #: 38 Filed: 07/19/13 Page 6 of 12 PageID #:359viii. Any photocopy, document imaging, electronic discovery or other
vendor retained by counsel for any Party.
B. Any Protected Information which has been designated as ATTORNEY’S
EYES ONLY in accordance with this Protective Order shall not be disclosed to anyone except to
the persons identified in 7(A)(i), (ii) and (iv)-(viii) above.
8. Disclosure at Deposition. Any deposition witness who is not identified in
paragraph 7 and who is shown a Document marked CONFIDENTIAL or ATTORNEY’S EYES
ONLY shall, on the deposition record, be given a copy of the Protective Order prior to disclosure
and shall thereafter be subject to the terms of this Protective Order regarding the portions of such
Document designated as Protected Information.
9. Filing Protected Information with the Court. No restricted or sealed Document is
to be filed with the Clerk of the Court unless leave of court to file the particular Document(s) is
specifically obtained by the Court.
10. Disclosure at Hearing or Trial. The use of Protected Information at any hearing
or trial of the Lawsuits will be the subject of a further order of this Court.
11. Designation Not Conclusive. The designation of any Document, thing or
testimony as Protected Information is intended solely to facilitate preparation for the trial,
hearing or settlement of the Lawsuits, and the treatment of any Document, thing or testimony
designated as such shall not be construed as an admission or an agreement that the designated
Document, thing or testimony contains or discloses any trade secret or confidential information
in contemplation of law. No Party shall be obligated to challenge the propriety of any such
designation, and any failure to do so shall not preclude a subsequent attack on the propriety of
any CONFIDENTIAL or ATTORNEY’S EYES ONLY designation.
7
Case: 1:13-cv-03124 Document #: 38 Filed: 07/19/13 Page 7 of 12 PageID #:36012. Relief Available. By agreeing to the entry of this Protective Order, the
discovering Party does not waive its right to make application to the Court, with proper notice,
under the procedure set out by the Court or under applicable rules, to the responding Party and
other Parties to the litigation, for a determination that any Document designated as Protected
Information does not contain sensitive and non-public information, or that in certain
circumstances the information should be released from the provisions of this Protective Order. If
a dispute does arise concerning the propriety of designating particular Documents as Protected
Information, whether certain Documents or information should be released from the provisions
of this Protective Order, or concerning any other matter relating to the application of this Order,
counsel shall attempt to resolve the dispute by agreement before asking the Court to resolve the
dispute pursuant to the applicable Federal Rules of Civil Procedure and LR37.2. The standard
relevant to this determination is that of “good cause” under Rule 26(c).
13. Procedure Upon Termination of Action. Within sixty (60) days of the final
determination of this action, including all appeals, and unless otherwise agreed to in writing by
counsel, each Party shall (a) return to the designating Party any original Documents and things
constituting Protected Information, and (b) at the election of the designating Party, either certify
in writing that the remaining copies of such Documents and things have been destroyed or return
them to the designating Party. Notwithstanding the foregoing, the attorneys of record for each
Party may retain all pleadings, briefs, memoranda, motions, and other Documents containing
their work product which refer to or incorporate Protected Information and will continue to be
bound by the terms of this Protective Order with respect to all such retained information.
14. Custody of Protected Information. Documents and things designated as
containing Protected Information, and any copies or extracts thereof, shall be retained in the
8
Case: 1:13-cv-03124 Document #: 38 Filed: 07/19/13 Page 8 of 12 PageID #:361custody of the attorneys of record during the pendency of this action, except as reasonably
necessary to provide access to persons authorized under the provisions of this Protective Order.
15. Transmission of Protected Information. Parties may transmit or communicate
Protected Information to any persons permitted to review or receive such Protected Information
under this Protective Order by hand delivery; face-to-face conference; in sealed envelopes or
containers via mail or an established freight, delivery or messenger service; or by telephone,
telegram, facsimile, email or other electronic transmission system, if under the circumstances,
there is no reasonable likelihood that the transmission will be intercepted and misused.
16. Additional Agreements.
A. Nothing in this Protective Order shall be deemed a waiver of the right of
any Party to object to a request for discovery on the basis of relevance, materiality, privilege,
overbreadth or any other recognized objection to discovery.
B. This Protective Order may be modified by further written stipulation
signed by the Parties with approval of this Court or by further order of this Court upon
application to the Court with notice.
ENTERED: _________________________
Elaine E. Bucklo
United States District Judge
DATED: July 19, 2013
9
Case: 1:13-cv-03124 Document #: 38 Filed: 07/19/13 Page 9 of 12 PageID #:362EXHIBIT A
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CAR CHARGING GROUP, INC. a Nevada )
Corporation and 350 HOLDINGS, LLC, )
a Florida limited liability company )
)
Plaintiffs, ) Case No. 13 CV 03124
)
v. ) Judge Elaine E. Bucklo
)
JNS HOLDING CORPORATION, )
a Delaware Corporation, and )
JNS POWER & CONTROL )
SYSTEMS, INC., an Illinois Corporation )
)
Defendants. )
)
)
JNS POWER & CONTROL SYSTEMS, INC., )
an Illinois Corporation, ) Case No. 13 CV 04020
)
Plaintiff, ) Reassigned for relatedness to
)
v. ) Judge Elaine E. Bucklo
)
350 GREEN, LLC, a Virginia limited )
liability company, )
)
Defendant. )
UNDERTAKING
I, _____________________, having been duly sworn upon oath, depose and state as
follows:
1. I have read and know the contents of the Agreed Protective Order (“Protective
Order”) entered by the Court in the above-captioned case on , 2013.
2. I am one of the persons described in paragraph 7 of the Protective Order and I am
executing this Undertaking and agreeing to enter into this stipulation in order to satisfy the
10
Case: 1:13-cv-03124 Document #: 38 Filed: 07/19/13 Page 10 of 12 PageID #:363conditions provided in paragraph 7 of the Protective Order prior to the disclosure to me of any
Protected Information as said term is defined and described in the Protective Order.
3. I expressly represent and agree that:
(a) I have read and shall be fully bound by the terms of the Protective Order;
(b) All Protected Information disclosed to me pursuant to the Protective
Order shall be maintained by me in strict confidence;
(c) I shall not disclose or use the original or any copy of, or the contents or the
subject matter of, any Protected Information except in accordance with the
Protective Order at anytime hereinafter; and
(d) I shall, upon being notified of the termination of the Lawsuits, as defined in the
Protective Order, proffer the return of all copies of all Protected Information to
the counsel having designated such documents and/or information confidential, or
to the counsel providing the Protected Information to me for purposes of
returning the Protected Information to the counsel having designated such
documents and/or information confidential pursuant to the terms of the
Protective Order.
4. I do and shall subject myself to the continuing jurisdiction of the United States
District Court for the Northern District of Illinois, Eastern Division over my person, wherever I
shall be, for the enforcement of any United States District Court’s order to be entered pursuant to
the Protective Order or this Undertaking.
FURTHER AFFIANT SAYETH NOT.
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury under the laws of the United States
of America that the foregoing is true and correct.
Executed on this _____ day of_____________, 2013
07/19/2013 37 MINUTE entry before Honorable Elaine E. Bucklo: Status hearing held on 7/19/2013 and continued to 8/27/2013 at 9:30 AM. Cross dispositive motions with supporting memoranda due by 8/5/2013. Cross responses due by 8/21/2013. Parties joint request for entry of an agreed protective is granted. Enter Agreed Protective Order. Mailed notice (jdh) (Entered: 07/19/2013)
07/19/2013 38 Enter Agreed PROTECTIVE Order Signed by the Honorable Elaine E. Bucklo on 7/19/2013. Mailed notice (jdh) (Entered: 07/19/2013)
I hate that too. If you run a query with the case number you can see the last date something was filed and it doesn't cost.
Seen that scheduled on the court website daily calendar.
Seen on pacer that the other case against 350 is scheduled today too with bucklo. I thought that one was cancelled.
Maybe we're getting close to becoming a fully reporting SEC filing company. Been almost two months since that pr.
Sad we get excited about 6 grand of volume...let's hope this is the lowest trading day from here out!
Nothing new on pacer...last filing July 03.
No shares should be restricted by now. All 119M should be ok to trade. But trades like there's 4M in float.
So who determines when/if this goes to court? Doesn't the judge read/hear from both sides and just makes a decision?
Does anyone see JNSH getting a ruling or dismissal this Friday? The system says it's a status hearing.
That runup lasted for one day and volume dried up.
How will that help? Make it worse. JNSH doesn't trade now, isn't liquid.
I think it's coming up on 3 years of being dead. Hope to see some volume soon.
Good to hear....can't wait for some action here...overdue.
I think charts are meaningless on stocks that trade less than $6-8k a day. This one can barely see a thousand dollars a day.
I wish jnsh would trade $140,000 in one day like our lawsuit friend. We have a tough time getting $5000. Its really been bad lately.
Looks like it. Somebody has information!
Is it safe to say some info was leaked and ccgi won the Chicago contract? Volume last couple days points to something.
The seller, if there is one, is in no hurry. Volume has been meaningless lately. JNSH has been dormant for years. Need a heavy group/promotion. Nothing the company has pr'd helped. I've seen several companies pr to begin sec compliant and 3 fold next couple days, but not here. Beginning to think if the chicago contract is in our favor, won't bring new money. If we're close to a ruling, I would think some buyers would hit from a gambling perspective.
Now JNSH isn't on Wed. court schedule.
Who knows what's going on. They have the month of July to get a ruling and to complete the project, otherwise forget about it.
I believe so...then ccgi dropped theirs?
I understand nothing about the legal system, even less after reading whats posted on pacer.
I see jnsh and 350green is scheduled a notice of motion on wed. with Judge Bucklo. I thought this lawsuit was with Judge Dow. Does this mean they consolidated the two?