AI
Wednesday, January 13, 2010 5:02:58 PM
Today Calypso filed for a temporary restraining order to stop the proposed sale of the patent by Daic. After reading thru the entire filing (291 pages with exhibits), the judge will of course grant it. Along with filing for the TRO, Calypso is also going to file cross-claims against Daic and 3rd party claims against Williamson and Stephens.
I have posted the first filing which is just the brief. =================================================
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION
CALYPSO WIRELESS, INC., and §
DRAGO DAIC §
§
Plaintiffs, §
§ Case No. 2:08-CV-00441
v. § Expedited Hearing Requested
§
T-Mobile USA, Inc. §
§
Defendant. §
EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION AND MEMORANDUM IN SUPPORT
*** Plaintiff Calypso Wireless, Inc. respectfully requests an expedited hearing to prevent the sale of the Patent-in-Suit on Friday, January 15.*** Plaintiff Calypso Wireless, Inc. (“Calypso”) requests that the Court stop Co-Plaintiff Drago Daic from selling the Patent-in-Suit. Mr. Daic (with the help of his partner Jimmy Williamson, P.C. and purported trustee Kelly D. Stephens1) has improperly seized the patent, along with all of Calypso’s other intellectual property, claiming that he has the right to do so under a purported contract with Calypso.2 As explained below, the purported contract is not a valid or enforceable agreement, and Mr. Daic had no right to seize Calypso’s intellectual property. The intellectual property constitutes substantially all of Calypso’s assets. If Mr. Daic is successful in conducting his sale, Calypso will be left with nothing, and will have, as a practical matter (owing to the fact that, with no assets, it has no way of securing necessary additional funding), no way to remedy this wrong.
1 Calypso is also filing today a Motion for Leave to File Second Amended and Supplemental Complaint in which Calypso seeks to add cross-claims against Co-Plaintiff Daic and third-party claims against Jimmy Williamson,
P.C. and Kelly D. Stephens). 2 See Daic’s Motion to Substitute a Party and Temporarily Stay the Case, filed Nov. 19, 2009 (Docket No. 57).
EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION AND MEMORANDUM IN SUPPORT
Calypso therefore respectfully requests, pursuant to Fed. R. Civ. P. 65(b), that the Court issue a temporary restraining order (a) enjoining Co-Plaintiff Drago Daic and Third-Party Defendants Jimmy Williamson, P.C. (“Williamson”) and Kelly D. Stephens (in his capacity as purported trustee) from proceeding with any sale or auction of the Patent-in-Suit, along with the ASNAP patents and Baxter patents and technology3, (b) revoking the purported assignment of the Patent-in-Suit (and the other ASNAP patents and Baxter patents) by Daic and Williamson to Stephens until the Court fully adjudicates the merits of Calypso’s disputes with Daic and Stephens as to Calypso’s, Daic’s, Williamson’s, and Stephens’ rights and interests in the Patent-in-Suit and other relevant intellectual property, and, in the alternative, (c) prohibiting Daic and Williamson from purchasing or offering to purchase the ASNAP and Baxter patents, in whole or in part from Stephens or any other party.
Absent immediate intervention by the Court, Daic, Williamson, and Stephens will proceed to sell Calypso’s entire portfolio of patents and technology (presumably to Daic and Williamson), thereby depriving Calypso of any means of producing income, and, in effect, destroying Calypso and destroying the investments of its shareholders.
Calypso further seeks an expedited preliminary injunction hearing on these same grounds, and, to that end, requests that the Court (a) set a date for a hearing on Calypso’s request for a preliminary injunction, (b) allow Calypso to conduct expedited written and oral discovery, including depositions of Drago Daic, Jimmy Williamson, P.C., and Kelly D. Stephens, and (c)
3 The terms “ASNAP Patents” and “Baxter Patents” as used herein refer to patents, patent applications, and related materials and technologies, including the Patent-in-Suit, U.S. Pats. Nos. 6,385,306, 6,765,996, 6,839,412, and 7,031,439, PCT No. PCT/US01/07528, and U.S. Pat. App. No. 11/040,482, as set out in the 2008 Agreement and the 2009 Non-Agreement. True and correct copies of the 2008 Agreement and the 2009 Non-Agreement are attached as Exhibits 2 and 3 to the Declaration of Cristian Turrini (“Turrini Decl.”), which is attached hereto as Exhibit A and hereby incorporated by reference.
order, under Rule 65(b), Drago Daic, Jimmy Williamson, P.C., and Kelley Stephens to appear at the earliest possible time to show cause why a preliminary injunction should not be granted.
I. Brief in Support of Calypso’s Request for Temporary Injunction
A. Introduction
A temporary restraining order (“TRO”) is appropriate where it is necessary to preserve the status quo and to prevent irreparable harm that would otherwise occur before there is time to adjudicate the underlying dispute.4 To prevail, the applicant must demonstrate (1) a substantial likelihood of success on the merits; (2) a substantial threat that the movant will suffer irreparable injury if the injunction is denied; (3) that the threatened injury outweighs any damage that the injunction might cause the Defendant; and (4) that the injunction will not disserve the public interest.5 Here, Daic, Williamson, and Stephens have “foreclosed” on Calypso’s entire technology portfolio, assigned it to Stephens as trustee, and are threatening to sell it at auction on January 15, 2010.6 They have no right to do any of this, and are acting pursuant to an alleged contract (the “2009 Non-Agreement”7) that was never agreed to or executed by Calypso’s board of directors.
There is a substantial likelihood that Calypso will prevail because the evidence that there was never any “acceptance, ... meeting of the minds, ... consent to the terms, [or] execution and
4 Granny Goose Foods v. Bhd. of Teamsters & Auto Truck Drivers, 415 U.S. 423, 439, 94 S. Ct. 1113, 39 L. Ed. 2d 435 (1974).
5 See Affiliated Prof’l Home Health Care Agency v. Shalala, 164 F.3d 282, 285 (5th Cir. 1999) (citations omitted); see also Clark v. Prichard, 812 F.2d 991, 993 (5th Cir. 1987).
6 See Turrini Decl., Ex. 1, Notification of Public Disposition of Intellectual Property, dated November 25, 2009.
7 See Turrini Decl., Ex. 2, Amended and Restated Settlement Agreement, dated April 3, 2009 (the “2009 Non-Agreement”).
delivery”8 of the 2009 Non-Agreement is incontrovertible.9 Calypso can show that there is a substantial threat of irreparable injury first because the value of the issued and yet-to-be-issued ASNAP and Baxter Patents – one of which is currently asserted against T-Mobile, and all of which will likely be licensed or the subject of patent litigation in the future – is not something that can be easily predicted or determined,10 and because, without these patents, Calypso would have no business at all.11 Finally, the harm to Daic, Williams, and Stephens of having to wait on the outcome of a hearing on a preliminary injunction to conduct their intended auction pales in comparison to the harm that would befall Calypso if they were allowed to misappropriate and sell all of Calypso’s assets, and the public interest is not disserved by preventing the misappropriation of an entire technology portfolio.
B. Factual Background
Calypso was founded in 1998, and has, from its inception, been a pioneer in the field of wireless communications.12 Calypso’s ground-breaking innovations include the development of technology for seamless roaming of voice, video, and data between Wide Area Network access points, such as cellular towers, and short-range Internet access points, such as Wi-Fi routers.13
8 See Prime Prods., Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 636 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (setting out the elements of contract formation in Texas) (citing Angelou v. African Overseas Union, 33 S.W.3d 269, 278 (Tex. App.—Houston [14th Dist.] 2000, no pet.)); see also Bocchi Ams. Assocs. v. Commerce Fresh Mktg., 515 F.3d 383, 392 (5th Cir. 2008) (“To evidence an agreement, the writings must satisfy all the elements of contract formation under Texas law: offer, acceptance, and a ‘meeting of the minds.’”) (citing Prime Prods, Inc., 97 S.W.3d at 636).
9 See Turrini Decl., ¶¶ 12-13.
10 See Mississippi Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 630 n. 12 (5th Cir. Miss. 1985) (economic harm a valid basis of assertion of irreparably harm where value determination would be speculative) (citing Henry v. First Nat. Bank of Clarksdale, 595 F.2d 291, 305 (5th Cir.1979), cert. denied sub nom. Claiborne Hardware Co. v. Henry, 444 U.S. 1074, 100 S. Ct. 1020, 62 L. Ed. 2d 756 (1980)).
11 See id.
12 Turrini Decl., ¶ 4.
13 Id.
This technology is set to explode in the marketplace – companies like T-Mobile USA, Inc. are already using it – and Calypso is well-positioned to exploit this coming growth.14 At least, Calypso would be, but for the fact that Daic, Williamson, and Stephens misappropriated all of Calypso’s intellectual property.
In 2004, Daic sued Calypso15 on the basis of one or more undocumented agreements between him and Carlos Mendoza, who ran Calypso at the time.16 Under suspicious circumstances, Drago was able to secure a default judgment in excess of $100 Million against Calypso.17 Under the threat of Daic’s execution of the $100+ Million judgment, Calypso entered into an agreement with Daic and Williamson – the 2008 Agreement18 – under which, among other things, Daic and Williamson took a security interest in the ‘923 Patent in the form of a 25% ownership stake in the ASNAP Patents and the Baxter Patents, which constitute Calypso’s entire technology and intellectual property portfolio.19
Drago Daic did not comply with his obligations under the 2008 Agreement.20 In fact, he made every effort, in violation of his obligations under the 2008 Agreement, to interfere with the day-to-day operations of Calypso, as well as various arrangements and agreements that Calypso attempted to enter into.21 Daic also refused to join in as plaintiff in the present suit for
14 Id. 15 Drago Daic, Curtis Scott Howell d/b/a Tribeca, Champion Classic, Inc. and U.S. Lights, Inc. v. Calypso Wireless,
Inc., Carlos Mendoza and David Davila, Cause No. 2004-63048, in the 151st District Court of Harris County,
Texas. 16 Turrini Decl., ¶ 5. 17 Id. 18 See generally, Turrini Decl., Ex. 3. 19 See Note 2 supra. 20 Turrini Decl., ¶ 17.
21 Id.
infringement of the ‘923 Patent.22 As part (25%) owner of the ‘923 Patent, Daic was a necessary party to the suit.23
In the spring of 2009, Daic complained that Calypso had breached the 2008 Agreement by, among other things, failing to consummate the deals or bring in investors – things he himself had prevented.24 Daic threatened to enforce his $100+ Million default judgment, to take the ‘923 Patent away from Calypso, along with the other ASNAP and Baxter Patents, and refused to cooperate in the current suit for patent infringement.25
Calypso and Daic negotiated throughout the spring of 2009 to attempt to resolve Daic’s issues.26 In the end, Daic presented Calypso with a draft of an “Amended and Restated Settlement Agreement,” along with an ultimatum: sign or else.27 Calypso proposed several sets of revisions to Daic’s proposed amended agreement, but each time Calypso was told that Daic would only sign the agreement “as is.”28
To enter into a contract such as the Daic’s proposed agreement, Calypso’s board of directors and shareholders would have had to approve of the terms of the agreement and of Calypso’s entry into the agreement.29 This never happened.30 There were three individuals on the Calypso board of directors in the spring of 2009: (1) Cristian Turrini, (2) Richard Pattin, and
22 Id. 23 See Ethicon, Inc. v. U.S. Surgical Corp., 135 F.3d 1456, 1466-67 (Fed. Cir. 1998); see also 35 U.S.C. §§ 116,
261, 262. 24 Turrini Decl., ¶ 16. 25 Id. 26 Turrini Decl., ¶ 9-13. 27 Id., ¶ 9. 28 Id., ¶ 10, 15. 29 See 8 Del. Laws § 271; Turrini Decl., ¶ 13. 30 Turrini Decl., ¶ 12.
(3) Kathy Daic.31 Kathy Daic is Drago Daic’s wife.\32 She resigned her board position on April 3, 2009 – the same date as the purported execution of Daic’s purported agreement – and did not participate in the board’s consideration of the agreement or the negotiations of the terms of the agreement.33
Cristian Turrini and Richard Pattin never agreed together that Calypso should enter into Daic’s proposed agreement.34 In fact, Cristian Turrini repeatedly voiced his disagreement with the idea (and disapproval of the proposed terms of the proposed agreement).35 This was communicated to Daic, along with the fact that Calypso could not enter into the proposed agreement without Turrini’s consent (i.e., the rest of the board of directors’ consent).36 Nevertheless, Daic was somehow able to obtain Richard Pattin’s signature, purportedly on behalf of Calypso, on his proposed agreement.37 Pattin had no right, under Calypso’s Bylaws, to purport to execute the 2009 Non-Agreement.38
On November 19, 2009, Daic filed a Motion to Substitute a Party and Temporarily Stay the Case with this Court, asking that the Court substitute a trustee designated by him as plaintiff under Fed. R. Civ. P. 25(c).39 In his Motion, Daic claims that he and Williamson have certain rights vis-à-vis the ASNAP Patents and Baxter Patents (which include the Patent-in-Suit, i.e., the ‘923 Patent) under the 2009 Non-Agreement, and, implicitly, that the 2009 Non-Agreement is a
31 Id., ¶ 8.
32 Id. 33 Id., ¶ 9. 34 Id., ¶ 7, 9-12. 35 Id.
36 Id., ¶ 7. 37 See generally, Turrini Decl., Ex. 2, 2009 Non-Agreement. 38 See Turrini Decl., ¶¶ 7, 12, Ex. 10, Corporate Bylaws of Calypso Wireless, Inc., ¶ 7. 39 See Daic’s Motion to Substitute a Party and Temporarily Stay the Case, filed Nov. 19, 2009 (Docket No. 57).
valid and enforceable contract.40 Daic purportedly assigned the ASNAP and Baxter Patents (which include the ‘923 Patent) to Stephens, who is purportedly acting as trustee, and who is preparing to sell the patents at auction.41
On November 25, 2009, Calypso received a “Notification of Public Disposition of Intellectual Property (Non-Consumer Transaction)” (the “Notice”) which lists Stephens as the authorized representative of Daic and Williamson.42 The Notice states that “Kelly D. Stephens, as trustee and the owner of all right, title and interest” in the ASNAP and Baxter Patents, and that Stephens plans to sell the ASNAP and Baxter Patents at 12:00 noon on Friday, December 18, 2009.43
C. Legal Authorities and Argument
1. There is a Substantial Likelihood that Calypso Will Prevail on the Merits.
There is a substantial likelihood that Calypso will prevail because there is incontrovertible evidence that the 2009 Non-Agreement – the purported contract upon which Daic and Williamson base their claims to the ASNAP and Baxter Patents – is invalid and unenforceable. “The elements of a valid contract are (1) an offer, (2) an acceptance, (3) a meeting of the minds, (4) each party’s consent to the terms, and (5) execution and delivery of the contract with the intent that it be mutual and binding.”44 As described above, the consent of
40 Id.
41 Id., ¶ Ex. 13, Amended Notification of Public Disposition of Intellectual Property (“Notice”), dated Dec. 11, 2009.
42 Id., ¶ Ex. 1, Notification of Public Disposition of Intellectual Property (“Amended Notice”), dated Nov. 25, 2009.
43 See Id., ¶ Ex. 13, Amended Notice, dated Dec. 11, 2009.
44 Prime Prods., Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 636 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (citing Angelou v. African Overseas Union, 33 S.W.3d 269, 278 (Tex. App.—Houston [14th Dist.] 2000, no pet.)); see also Bocchi Ams. Assocs. v. Commerce Fresh Mktg., 515 F.3d 383, 392 (5th Cir. 2008) (“To evidence an agreement, the writings must satisfy all the elements of contract formation under Texas law: offer, acceptance, and a ‘meeting of the minds.’”) (citing Prime Prods, Inc., 97 S.W.3d at 636).
Calypso’s board of directors would have been required to enter into the 2009 Non-Agreement. Cristian Turrini – one of two members of the board at the time – did not consent and, to the contrary, expressed his lack of agreement to the terms and his lack of consent to entry into the contract. In fact, the evidence shows that Daic (or his representatives) were informed that Calypso did not accept the terms of the 2009 Non-Agreement, and that Mr. Pattin could not accept without board approval, which he did not have.45 There can be no meeting of the minds where one party (Calypso) does not and is in fact unable to consent, and the other parties (Daic and Williamson) know this.
Here, Daic’s and Williamson’s claims as to the ASNAP and Baxter Patents are based solely and entirely on the 2009 Non-Agreement.46 The actual agreement between Calypso, Daic, and Williamson – the 2008 Agreement – gave Daic and Williamson an undivided 25% stake in the patents; not an executable security interest. Because their purported security interest is based on the 2009 Non-Agreement, and because the 2009 Non-Agreement is invalid, Daic and Williamson therefore have no right to foreclose on the ASNAP and Baxter Patents.
2. Calypso Will Be Harmed Irreparably Absent Relief from the Court.
As a general matter, under Fifth Circuit law, an irreparable injury is one that cannot be remedied by an award of economic damages.47 There are exceptions, however, where “establishment of the dollar value of the loss … especially difficult or speculative,”48 and where
45 See Turrini Decl., ¶¶ 10-13. 46 See id., Ex. 1, Notice, at 1; see also, generally Daic’s Motion to Substitute a Party and Temporarily Stay the Case,
filed Nov. 19, 2009 (Docket No. 57). 47 Deerfield Medical Center v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir. 1981). 48 Mississippi Power & Light, 760 F.2d at 630 n. 12 (citing State of Texas v. Seatrain Int’l, S.A., 518 F.2d 175, 179
(5th Cir. 1975)).
denying the injunction “‘would have entailed the virtual disappearance of’ the plaintiff ‘as functional entity.’”49 Both of these exceptions apply here.
The terms “ASNAP Patents” and “Baxter Patents” include a number of different patents, some of which are foreign, some of which are domestic.50 Some of the ASNAP and Baxter Patents have yet to issue, and in some cases, the terms refer simply to facets of the wireless technology that Calypso developed.51 The technology covered by the ASNAP and Baxter Patents is, in light of the practically-viral proliferation and exponential growth of Wi-Fi and Blue Tooth, poised to be a very big deal.52 Companies like T-Mobile already use the technology to allow their customers to transition seamlessly, while using a cell phone, from one wireless network to another.53 Calypso has, of course, attempted at times to put a value on its technology and its patents, but given (1) the sheer number of different patents and pending applications in different jurisdictions, (2) the potential to exploit these patents via product development, licensing, and, if necessary, patent litigation, and (3) the complex and various ways that Daic himself has attempted to assign a value to the ASNAP and Baxter Patents,54 trying to ascertain the value of everything that Daic, Williamson, and Stephens have misappropriated from Calypso; trying to assign a number to the value that the ASNAP and Baxter Patents represent to Calypso now and in the future, would be a highly speculative exercise.
49 Mississippi Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 630 n. 12 (5th Cir. Miss. 1985) (citing
Henry v. First Nat. Bank of Clarksdale, 595 F.2d 291, 305 (5th Cir.1979), cert. denied sub nom., Claiborne
Hardware Co. v. Henry, 444 U.S. 1074, 100 S. Ct. 1020, 62 L. Ed. 2d 756 (1980)). 50 See Turrini Decl., Ex. 2, 2008 Agreement, Ex. 3, 2009 Non-Agreement. 51 See id. 52 See Turrini Decl., ¶ 4. 53 See id. 54 See id., Ex. 2, 2008 Agreement, Ex. 3, 2009 Non-Agreement.
The result of such speculation – whatever it would be – is bound to be high, if only because Daic was willing to forgo collecting on a $100 Million default judgment in exchange for just a 25% stake in the ASNAP and Baxter Patents.55 The consequences to Calypso of losing the ASNAP and Baxter Patents would be, in a word, devastating.56 In fact, Calypso has no other patent portfolio, no other technology, and no other assets to fall back on.57 If the ASNAP and Baxter Patents go, then so does Calypso.
It is clear then that if the Court does not grant any injunctive relief, Calypso will be injured, and that the injury will be irreparable.
3. Calypso Has No Adequate Remedy at Law.
If the Court denies the relief Calypso seeks, Calypso will not have an adequate remedy to redress the resulting harm. First, Calypso would have to file suit against Daic, Williamson, Stephens, and any purported successors in interest of the ASNAP and Baxter patents. This alone satisfies the “no adequate remedy” requirement.58 More practically, if Calypso no longer has the ASNAP and Baxter patents, Calypso will have no means of securing any income or funding of any sort, which means it will have no way of pursuing anyone, let alone third parties who purport to purchase the patents. Any “remedy” that is practically impossible to obtain cannot qualify as “adequate.”59 Finally, as discussed above, the harm that would occur would be the destruction of Calypso, along with the investments of all its shareholders, and the future value of Calypso and potential return on the shareholders’ investments. Calypso has no adequate remedy at law
55 See id., Ex. 3, 2008 Agreement at 3. 56 See id., ¶ 14. 57 See id. 58 See, e.g., Wilson v. Illinois S. Ry., 263 U.S. 574, 576-77 (1924). 59 See, e.g., Communications Workers of Am. v. Verizon Communs., Inc., 255 F. Supp. 2d 479, 485 (E.D. Pa. 2003).
because it would be difficult, if not impossible, to determine the monetary value of these damages.60 what the value of that destruction would be.
4. The Balance of Hardships Favors Calypso.
If the Court temporarily restrains Daic, Williamson, and Stephens from going forward with the sale of the ASNAP and Baxter Patents, they will have to wait a matter of weeks until the Court is able to hear Calypso’s Motion for a Preliminary Injunction. If the Court does not restrain Daic, Williamson, and Stephens, Calypso will be forced to drop the current litigation, and close its doors. The balance of these two potential hardships favors Calypso.
5. Granting a TRO Will Not Disserve the Public Interest.
The closest thing to a legitimate public interest in this situation is the interest of all of Calypso’s shareholders. Granting the TRO will not harm these members of the public. Denying it, however, would deprive them of any opportunity to recoup their investment in Calypso.
II. Conclusion & Prayer
For all of the foregoing reasons, Plaintiff Calypso Wireless, Inc. respectfully requests, pursuant to Fed. R. Civ. P. 65, that the Court grant the foregoing Motion and issue:
1. An order temporarily restraining Co-Plaintiff Drago Daic and Third-Party Defendants Jimmy Williamson, P.C. (“Williamson”) and Kelly D. Stephens from proceeding with the auction and sale of the Patent-in-Suit61, along with the ASNAP patents and Baxter patents and technology62;
60 See, e.g., Winston v. General Drivers, Warehousemen & Helpers Local Un., 879 F.Supp. 719, 725 (W.D.Ky. 1995).
61 U.S. Patent No. 6,680,923.
62 The terms “ASNAP Patents” and “Baxter Patents” as used herein refer to patents, patent applications, and related materials and technologies, including the Patent-in-Suit, U.S. Pats. Nos. 6,385,306, 6,765,996, 6,839,412, and 7,031,439, PCT No. PCT/US01/07528, and U.S. Pat. App. No. 11/040,482. True and correct copies of the 2008 Agreement and the 2009 Non-Agreement are attached as Exhibits 2 and 3 to the Declaration of Cristian Turrini (“Turrini Decl.”), which is attached hereto as Exhibit A and hereby incorporated by reference.
2. An order revoking the purported assignment of the Patent-in-Suit (and the other
ASNAP patents and Baxter patents) by Daic and Williamson to Stephens until the Court fully
adjudicates the merits of Calypso’s disputes with Daic and Stephens as to Calypso’s, Daic’s,
Williamson’s, and Stephens’ rights and interest in the Patent-in-Suit and other relevant
intellectual property; and
3. In the alternative, an order prohibiting Daic and Williamson from purchasing or
offering to purchase the ASNAP and Baxter patents, in whole or in part, from Stephens or any
other party.
Dated: January 13, 2010 Respectfully submitted,
/s/ Anthony Miller Paul V. Storm (lead counsel) paulstorm@stormllp.com
State Bar No. 19325350
Anthony P. Miller
amiller@stormllp.com
State Bar No. 24041484
Michael Leach
mleach@stormllp.com
State Bar No. 24065598
Storm LLP
901 Main Street, Suite 7100
Phone: 214-347-4700
Fax: 214-347-4799
CERTIFICATE OF SERVICE
I hereby certify that on January 13, 2010, I caused a true and correct copy of the
foregoing to be served on all counsel of record via the Court’s CM/ECF system, pursuant to
Local Rule CV-5(a)(3).
/s/ Anthony Miller Anthony Miller
I have posted the first filing which is just the brief. =================================================
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION
CALYPSO WIRELESS, INC., and §
DRAGO DAIC §
§
Plaintiffs, §
§ Case No. 2:08-CV-00441
v. § Expedited Hearing Requested
§
T-Mobile USA, Inc. §
§
Defendant. §
EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION AND MEMORANDUM IN SUPPORT
*** Plaintiff Calypso Wireless, Inc. respectfully requests an expedited hearing to prevent the sale of the Patent-in-Suit on Friday, January 15.*** Plaintiff Calypso Wireless, Inc. (“Calypso”) requests that the Court stop Co-Plaintiff Drago Daic from selling the Patent-in-Suit. Mr. Daic (with the help of his partner Jimmy Williamson, P.C. and purported trustee Kelly D. Stephens1) has improperly seized the patent, along with all of Calypso’s other intellectual property, claiming that he has the right to do so under a purported contract with Calypso.2 As explained below, the purported contract is not a valid or enforceable agreement, and Mr. Daic had no right to seize Calypso’s intellectual property. The intellectual property constitutes substantially all of Calypso’s assets. If Mr. Daic is successful in conducting his sale, Calypso will be left with nothing, and will have, as a practical matter (owing to the fact that, with no assets, it has no way of securing necessary additional funding), no way to remedy this wrong.
1 Calypso is also filing today a Motion for Leave to File Second Amended and Supplemental Complaint in which Calypso seeks to add cross-claims against Co-Plaintiff Daic and third-party claims against Jimmy Williamson,
P.C. and Kelly D. Stephens). 2 See Daic’s Motion to Substitute a Party and Temporarily Stay the Case, filed Nov. 19, 2009 (Docket No. 57).
EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION AND MEMORANDUM IN SUPPORT
Calypso therefore respectfully requests, pursuant to Fed. R. Civ. P. 65(b), that the Court issue a temporary restraining order (a) enjoining Co-Plaintiff Drago Daic and Third-Party Defendants Jimmy Williamson, P.C. (“Williamson”) and Kelly D. Stephens (in his capacity as purported trustee) from proceeding with any sale or auction of the Patent-in-Suit, along with the ASNAP patents and Baxter patents and technology3, (b) revoking the purported assignment of the Patent-in-Suit (and the other ASNAP patents and Baxter patents) by Daic and Williamson to Stephens until the Court fully adjudicates the merits of Calypso’s disputes with Daic and Stephens as to Calypso’s, Daic’s, Williamson’s, and Stephens’ rights and interests in the Patent-in-Suit and other relevant intellectual property, and, in the alternative, (c) prohibiting Daic and Williamson from purchasing or offering to purchase the ASNAP and Baxter patents, in whole or in part from Stephens or any other party.
Absent immediate intervention by the Court, Daic, Williamson, and Stephens will proceed to sell Calypso’s entire portfolio of patents and technology (presumably to Daic and Williamson), thereby depriving Calypso of any means of producing income, and, in effect, destroying Calypso and destroying the investments of its shareholders.
Calypso further seeks an expedited preliminary injunction hearing on these same grounds, and, to that end, requests that the Court (a) set a date for a hearing on Calypso’s request for a preliminary injunction, (b) allow Calypso to conduct expedited written and oral discovery, including depositions of Drago Daic, Jimmy Williamson, P.C., and Kelly D. Stephens, and (c)
3 The terms “ASNAP Patents” and “Baxter Patents” as used herein refer to patents, patent applications, and related materials and technologies, including the Patent-in-Suit, U.S. Pats. Nos. 6,385,306, 6,765,996, 6,839,412, and 7,031,439, PCT No. PCT/US01/07528, and U.S. Pat. App. No. 11/040,482, as set out in the 2008 Agreement and the 2009 Non-Agreement. True and correct copies of the 2008 Agreement and the 2009 Non-Agreement are attached as Exhibits 2 and 3 to the Declaration of Cristian Turrini (“Turrini Decl.”), which is attached hereto as Exhibit A and hereby incorporated by reference.
order, under Rule 65(b), Drago Daic, Jimmy Williamson, P.C., and Kelley Stephens to appear at the earliest possible time to show cause why a preliminary injunction should not be granted.
I. Brief in Support of Calypso’s Request for Temporary Injunction
A. Introduction
A temporary restraining order (“TRO”) is appropriate where it is necessary to preserve the status quo and to prevent irreparable harm that would otherwise occur before there is time to adjudicate the underlying dispute.4 To prevail, the applicant must demonstrate (1) a substantial likelihood of success on the merits; (2) a substantial threat that the movant will suffer irreparable injury if the injunction is denied; (3) that the threatened injury outweighs any damage that the injunction might cause the Defendant; and (4) that the injunction will not disserve the public interest.5 Here, Daic, Williamson, and Stephens have “foreclosed” on Calypso’s entire technology portfolio, assigned it to Stephens as trustee, and are threatening to sell it at auction on January 15, 2010.6 They have no right to do any of this, and are acting pursuant to an alleged contract (the “2009 Non-Agreement”7) that was never agreed to or executed by Calypso’s board of directors.
There is a substantial likelihood that Calypso will prevail because the evidence that there was never any “acceptance, ... meeting of the minds, ... consent to the terms, [or] execution and
4 Granny Goose Foods v. Bhd. of Teamsters & Auto Truck Drivers, 415 U.S. 423, 439, 94 S. Ct. 1113, 39 L. Ed. 2d 435 (1974).
5 See Affiliated Prof’l Home Health Care Agency v. Shalala, 164 F.3d 282, 285 (5th Cir. 1999) (citations omitted); see also Clark v. Prichard, 812 F.2d 991, 993 (5th Cir. 1987).
6 See Turrini Decl., Ex. 1, Notification of Public Disposition of Intellectual Property, dated November 25, 2009.
7 See Turrini Decl., Ex. 2, Amended and Restated Settlement Agreement, dated April 3, 2009 (the “2009 Non-Agreement”).
delivery”8 of the 2009 Non-Agreement is incontrovertible.9 Calypso can show that there is a substantial threat of irreparable injury first because the value of the issued and yet-to-be-issued ASNAP and Baxter Patents – one of which is currently asserted against T-Mobile, and all of which will likely be licensed or the subject of patent litigation in the future – is not something that can be easily predicted or determined,10 and because, without these patents, Calypso would have no business at all.11 Finally, the harm to Daic, Williams, and Stephens of having to wait on the outcome of a hearing on a preliminary injunction to conduct their intended auction pales in comparison to the harm that would befall Calypso if they were allowed to misappropriate and sell all of Calypso’s assets, and the public interest is not disserved by preventing the misappropriation of an entire technology portfolio.
B. Factual Background
Calypso was founded in 1998, and has, from its inception, been a pioneer in the field of wireless communications.12 Calypso’s ground-breaking innovations include the development of technology for seamless roaming of voice, video, and data between Wide Area Network access points, such as cellular towers, and short-range Internet access points, such as Wi-Fi routers.13
8 See Prime Prods., Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 636 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (setting out the elements of contract formation in Texas) (citing Angelou v. African Overseas Union, 33 S.W.3d 269, 278 (Tex. App.—Houston [14th Dist.] 2000, no pet.)); see also Bocchi Ams. Assocs. v. Commerce Fresh Mktg., 515 F.3d 383, 392 (5th Cir. 2008) (“To evidence an agreement, the writings must satisfy all the elements of contract formation under Texas law: offer, acceptance, and a ‘meeting of the minds.’”) (citing Prime Prods, Inc., 97 S.W.3d at 636).
9 See Turrini Decl., ¶¶ 12-13.
10 See Mississippi Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 630 n. 12 (5th Cir. Miss. 1985) (economic harm a valid basis of assertion of irreparably harm where value determination would be speculative) (citing Henry v. First Nat. Bank of Clarksdale, 595 F.2d 291, 305 (5th Cir.1979), cert. denied sub nom. Claiborne Hardware Co. v. Henry, 444 U.S. 1074, 100 S. Ct. 1020, 62 L. Ed. 2d 756 (1980)).
11 See id.
12 Turrini Decl., ¶ 4.
13 Id.
This technology is set to explode in the marketplace – companies like T-Mobile USA, Inc. are already using it – and Calypso is well-positioned to exploit this coming growth.14 At least, Calypso would be, but for the fact that Daic, Williamson, and Stephens misappropriated all of Calypso’s intellectual property.
In 2004, Daic sued Calypso15 on the basis of one or more undocumented agreements between him and Carlos Mendoza, who ran Calypso at the time.16 Under suspicious circumstances, Drago was able to secure a default judgment in excess of $100 Million against Calypso.17 Under the threat of Daic’s execution of the $100+ Million judgment, Calypso entered into an agreement with Daic and Williamson – the 2008 Agreement18 – under which, among other things, Daic and Williamson took a security interest in the ‘923 Patent in the form of a 25% ownership stake in the ASNAP Patents and the Baxter Patents, which constitute Calypso’s entire technology and intellectual property portfolio.19
Drago Daic did not comply with his obligations under the 2008 Agreement.20 In fact, he made every effort, in violation of his obligations under the 2008 Agreement, to interfere with the day-to-day operations of Calypso, as well as various arrangements and agreements that Calypso attempted to enter into.21 Daic also refused to join in as plaintiff in the present suit for
14 Id. 15 Drago Daic, Curtis Scott Howell d/b/a Tribeca, Champion Classic, Inc. and U.S. Lights, Inc. v. Calypso Wireless,
Inc., Carlos Mendoza and David Davila, Cause No. 2004-63048, in the 151st District Court of Harris County,
Texas. 16 Turrini Decl., ¶ 5. 17 Id. 18 See generally, Turrini Decl., Ex. 3. 19 See Note 2 supra. 20 Turrini Decl., ¶ 17.
21 Id.
infringement of the ‘923 Patent.22 As part (25%) owner of the ‘923 Patent, Daic was a necessary party to the suit.23
In the spring of 2009, Daic complained that Calypso had breached the 2008 Agreement by, among other things, failing to consummate the deals or bring in investors – things he himself had prevented.24 Daic threatened to enforce his $100+ Million default judgment, to take the ‘923 Patent away from Calypso, along with the other ASNAP and Baxter Patents, and refused to cooperate in the current suit for patent infringement.25
Calypso and Daic negotiated throughout the spring of 2009 to attempt to resolve Daic’s issues.26 In the end, Daic presented Calypso with a draft of an “Amended and Restated Settlement Agreement,” along with an ultimatum: sign or else.27 Calypso proposed several sets of revisions to Daic’s proposed amended agreement, but each time Calypso was told that Daic would only sign the agreement “as is.”28
To enter into a contract such as the Daic’s proposed agreement, Calypso’s board of directors and shareholders would have had to approve of the terms of the agreement and of Calypso’s entry into the agreement.29 This never happened.30 There were three individuals on the Calypso board of directors in the spring of 2009: (1) Cristian Turrini, (2) Richard Pattin, and
22 Id. 23 See Ethicon, Inc. v. U.S. Surgical Corp., 135 F.3d 1456, 1466-67 (Fed. Cir. 1998); see also 35 U.S.C. §§ 116,
261, 262. 24 Turrini Decl., ¶ 16. 25 Id. 26 Turrini Decl., ¶ 9-13. 27 Id., ¶ 9. 28 Id., ¶ 10, 15. 29 See 8 Del. Laws § 271; Turrini Decl., ¶ 13. 30 Turrini Decl., ¶ 12.
(3) Kathy Daic.31 Kathy Daic is Drago Daic’s wife.\32 She resigned her board position on April 3, 2009 – the same date as the purported execution of Daic’s purported agreement – and did not participate in the board’s consideration of the agreement or the negotiations of the terms of the agreement.33
Cristian Turrini and Richard Pattin never agreed together that Calypso should enter into Daic’s proposed agreement.34 In fact, Cristian Turrini repeatedly voiced his disagreement with the idea (and disapproval of the proposed terms of the proposed agreement).35 This was communicated to Daic, along with the fact that Calypso could not enter into the proposed agreement without Turrini’s consent (i.e., the rest of the board of directors’ consent).36 Nevertheless, Daic was somehow able to obtain Richard Pattin’s signature, purportedly on behalf of Calypso, on his proposed agreement.37 Pattin had no right, under Calypso’s Bylaws, to purport to execute the 2009 Non-Agreement.38
On November 19, 2009, Daic filed a Motion to Substitute a Party and Temporarily Stay the Case with this Court, asking that the Court substitute a trustee designated by him as plaintiff under Fed. R. Civ. P. 25(c).39 In his Motion, Daic claims that he and Williamson have certain rights vis-à-vis the ASNAP Patents and Baxter Patents (which include the Patent-in-Suit, i.e., the ‘923 Patent) under the 2009 Non-Agreement, and, implicitly, that the 2009 Non-Agreement is a
31 Id., ¶ 8.
32 Id. 33 Id., ¶ 9. 34 Id., ¶ 7, 9-12. 35 Id.
36 Id., ¶ 7. 37 See generally, Turrini Decl., Ex. 2, 2009 Non-Agreement. 38 See Turrini Decl., ¶¶ 7, 12, Ex. 10, Corporate Bylaws of Calypso Wireless, Inc., ¶ 7. 39 See Daic’s Motion to Substitute a Party and Temporarily Stay the Case, filed Nov. 19, 2009 (Docket No. 57).
valid and enforceable contract.40 Daic purportedly assigned the ASNAP and Baxter Patents (which include the ‘923 Patent) to Stephens, who is purportedly acting as trustee, and who is preparing to sell the patents at auction.41
On November 25, 2009, Calypso received a “Notification of Public Disposition of Intellectual Property (Non-Consumer Transaction)” (the “Notice”) which lists Stephens as the authorized representative of Daic and Williamson.42 The Notice states that “Kelly D. Stephens, as trustee and the owner of all right, title and interest” in the ASNAP and Baxter Patents, and that Stephens plans to sell the ASNAP and Baxter Patents at 12:00 noon on Friday, December 18, 2009.43
C. Legal Authorities and Argument
1. There is a Substantial Likelihood that Calypso Will Prevail on the Merits.
There is a substantial likelihood that Calypso will prevail because there is incontrovertible evidence that the 2009 Non-Agreement – the purported contract upon which Daic and Williamson base their claims to the ASNAP and Baxter Patents – is invalid and unenforceable. “The elements of a valid contract are (1) an offer, (2) an acceptance, (3) a meeting of the minds, (4) each party’s consent to the terms, and (5) execution and delivery of the contract with the intent that it be mutual and binding.”44 As described above, the consent of
40 Id.
41 Id., ¶ Ex. 13, Amended Notification of Public Disposition of Intellectual Property (“Notice”), dated Dec. 11, 2009.
42 Id., ¶ Ex. 1, Notification of Public Disposition of Intellectual Property (“Amended Notice”), dated Nov. 25, 2009.
43 See Id., ¶ Ex. 13, Amended Notice, dated Dec. 11, 2009.
44 Prime Prods., Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 636 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (citing Angelou v. African Overseas Union, 33 S.W.3d 269, 278 (Tex. App.—Houston [14th Dist.] 2000, no pet.)); see also Bocchi Ams. Assocs. v. Commerce Fresh Mktg., 515 F.3d 383, 392 (5th Cir. 2008) (“To evidence an agreement, the writings must satisfy all the elements of contract formation under Texas law: offer, acceptance, and a ‘meeting of the minds.’”) (citing Prime Prods, Inc., 97 S.W.3d at 636).
Calypso’s board of directors would have been required to enter into the 2009 Non-Agreement. Cristian Turrini – one of two members of the board at the time – did not consent and, to the contrary, expressed his lack of agreement to the terms and his lack of consent to entry into the contract. In fact, the evidence shows that Daic (or his representatives) were informed that Calypso did not accept the terms of the 2009 Non-Agreement, and that Mr. Pattin could not accept without board approval, which he did not have.45 There can be no meeting of the minds where one party (Calypso) does not and is in fact unable to consent, and the other parties (Daic and Williamson) know this.
Here, Daic’s and Williamson’s claims as to the ASNAP and Baxter Patents are based solely and entirely on the 2009 Non-Agreement.46 The actual agreement between Calypso, Daic, and Williamson – the 2008 Agreement – gave Daic and Williamson an undivided 25% stake in the patents; not an executable security interest. Because their purported security interest is based on the 2009 Non-Agreement, and because the 2009 Non-Agreement is invalid, Daic and Williamson therefore have no right to foreclose on the ASNAP and Baxter Patents.
2. Calypso Will Be Harmed Irreparably Absent Relief from the Court.
As a general matter, under Fifth Circuit law, an irreparable injury is one that cannot be remedied by an award of economic damages.47 There are exceptions, however, where “establishment of the dollar value of the loss … especially difficult or speculative,”48 and where
45 See Turrini Decl., ¶¶ 10-13. 46 See id., Ex. 1, Notice, at 1; see also, generally Daic’s Motion to Substitute a Party and Temporarily Stay the Case,
filed Nov. 19, 2009 (Docket No. 57). 47 Deerfield Medical Center v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir. 1981). 48 Mississippi Power & Light, 760 F.2d at 630 n. 12 (citing State of Texas v. Seatrain Int’l, S.A., 518 F.2d 175, 179
(5th Cir. 1975)).
denying the injunction “‘would have entailed the virtual disappearance of’ the plaintiff ‘as functional entity.’”49 Both of these exceptions apply here.
The terms “ASNAP Patents” and “Baxter Patents” include a number of different patents, some of which are foreign, some of which are domestic.50 Some of the ASNAP and Baxter Patents have yet to issue, and in some cases, the terms refer simply to facets of the wireless technology that Calypso developed.51 The technology covered by the ASNAP and Baxter Patents is, in light of the practically-viral proliferation and exponential growth of Wi-Fi and Blue Tooth, poised to be a very big deal.52 Companies like T-Mobile already use the technology to allow their customers to transition seamlessly, while using a cell phone, from one wireless network to another.53 Calypso has, of course, attempted at times to put a value on its technology and its patents, but given (1) the sheer number of different patents and pending applications in different jurisdictions, (2) the potential to exploit these patents via product development, licensing, and, if necessary, patent litigation, and (3) the complex and various ways that Daic himself has attempted to assign a value to the ASNAP and Baxter Patents,54 trying to ascertain the value of everything that Daic, Williamson, and Stephens have misappropriated from Calypso; trying to assign a number to the value that the ASNAP and Baxter Patents represent to Calypso now and in the future, would be a highly speculative exercise.
49 Mississippi Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 630 n. 12 (5th Cir. Miss. 1985) (citing
Henry v. First Nat. Bank of Clarksdale, 595 F.2d 291, 305 (5th Cir.1979), cert. denied sub nom., Claiborne
Hardware Co. v. Henry, 444 U.S. 1074, 100 S. Ct. 1020, 62 L. Ed. 2d 756 (1980)). 50 See Turrini Decl., Ex. 2, 2008 Agreement, Ex. 3, 2009 Non-Agreement. 51 See id. 52 See Turrini Decl., ¶ 4. 53 See id. 54 See id., Ex. 2, 2008 Agreement, Ex. 3, 2009 Non-Agreement.
The result of such speculation – whatever it would be – is bound to be high, if only because Daic was willing to forgo collecting on a $100 Million default judgment in exchange for just a 25% stake in the ASNAP and Baxter Patents.55 The consequences to Calypso of losing the ASNAP and Baxter Patents would be, in a word, devastating.56 In fact, Calypso has no other patent portfolio, no other technology, and no other assets to fall back on.57 If the ASNAP and Baxter Patents go, then so does Calypso.
It is clear then that if the Court does not grant any injunctive relief, Calypso will be injured, and that the injury will be irreparable.
3. Calypso Has No Adequate Remedy at Law.
If the Court denies the relief Calypso seeks, Calypso will not have an adequate remedy to redress the resulting harm. First, Calypso would have to file suit against Daic, Williamson, Stephens, and any purported successors in interest of the ASNAP and Baxter patents. This alone satisfies the “no adequate remedy” requirement.58 More practically, if Calypso no longer has the ASNAP and Baxter patents, Calypso will have no means of securing any income or funding of any sort, which means it will have no way of pursuing anyone, let alone third parties who purport to purchase the patents. Any “remedy” that is practically impossible to obtain cannot qualify as “adequate.”59 Finally, as discussed above, the harm that would occur would be the destruction of Calypso, along with the investments of all its shareholders, and the future value of Calypso and potential return on the shareholders’ investments. Calypso has no adequate remedy at law
55 See id., Ex. 3, 2008 Agreement at 3. 56 See id., ¶ 14. 57 See id. 58 See, e.g., Wilson v. Illinois S. Ry., 263 U.S. 574, 576-77 (1924). 59 See, e.g., Communications Workers of Am. v. Verizon Communs., Inc., 255 F. Supp. 2d 479, 485 (E.D. Pa. 2003).
because it would be difficult, if not impossible, to determine the monetary value of these damages.60 what the value of that destruction would be.
4. The Balance of Hardships Favors Calypso.
If the Court temporarily restrains Daic, Williamson, and Stephens from going forward with the sale of the ASNAP and Baxter Patents, they will have to wait a matter of weeks until the Court is able to hear Calypso’s Motion for a Preliminary Injunction. If the Court does not restrain Daic, Williamson, and Stephens, Calypso will be forced to drop the current litigation, and close its doors. The balance of these two potential hardships favors Calypso.
5. Granting a TRO Will Not Disserve the Public Interest.
The closest thing to a legitimate public interest in this situation is the interest of all of Calypso’s shareholders. Granting the TRO will not harm these members of the public. Denying it, however, would deprive them of any opportunity to recoup their investment in Calypso.
II. Conclusion & Prayer
For all of the foregoing reasons, Plaintiff Calypso Wireless, Inc. respectfully requests, pursuant to Fed. R. Civ. P. 65, that the Court grant the foregoing Motion and issue:
1. An order temporarily restraining Co-Plaintiff Drago Daic and Third-Party Defendants Jimmy Williamson, P.C. (“Williamson”) and Kelly D. Stephens from proceeding with the auction and sale of the Patent-in-Suit61, along with the ASNAP patents and Baxter patents and technology62;
60 See, e.g., Winston v. General Drivers, Warehousemen & Helpers Local Un., 879 F.Supp. 719, 725 (W.D.Ky. 1995).
61 U.S. Patent No. 6,680,923.
62 The terms “ASNAP Patents” and “Baxter Patents” as used herein refer to patents, patent applications, and related materials and technologies, including the Patent-in-Suit, U.S. Pats. Nos. 6,385,306, 6,765,996, 6,839,412, and 7,031,439, PCT No. PCT/US01/07528, and U.S. Pat. App. No. 11/040,482. True and correct copies of the 2008 Agreement and the 2009 Non-Agreement are attached as Exhibits 2 and 3 to the Declaration of Cristian Turrini (“Turrini Decl.”), which is attached hereto as Exhibit A and hereby incorporated by reference.
2. An order revoking the purported assignment of the Patent-in-Suit (and the other
ASNAP patents and Baxter patents) by Daic and Williamson to Stephens until the Court fully
adjudicates the merits of Calypso’s disputes with Daic and Stephens as to Calypso’s, Daic’s,
Williamson’s, and Stephens’ rights and interest in the Patent-in-Suit and other relevant
intellectual property; and
3. In the alternative, an order prohibiting Daic and Williamson from purchasing or
offering to purchase the ASNAP and Baxter patents, in whole or in part, from Stephens or any
other party.
Dated: January 13, 2010 Respectfully submitted,
/s/ Anthony Miller Paul V. Storm (lead counsel) paulstorm@stormllp.com
State Bar No. 19325350
Anthony P. Miller
amiller@stormllp.com
State Bar No. 24041484
Michael Leach
mleach@stormllp.com
State Bar No. 24065598
Storm LLP
901 Main Street, Suite 7100
Phone: 214-347-4700
Fax: 214-347-4799
CERTIFICATE OF SERVICE
I hereby certify that on January 13, 2010, I caused a true and correct copy of the
foregoing to be served on all counsel of record via the Court’s CM/ECF system, pursuant to
Local Rule CV-5(a)(3).
/s/ Anthony Miller Anthony Miller
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