frank michael weyer - techcoastlaw · frank michael weyer 2032 whitley avenue los angeles,...

Frank Michael Weyer 2032 Whitley Avenue

Los Angeles, California 90068

Telephone: (310) 494-6616 E-mail: [email protected]

April 20, 2012 Office of the General Counsel Federal Election Commission 999 E Street NW Washington DC 20463

Re: Complaint for Violation of Federal Election Campaign Laws by Candidate Mitt Romney and the law corporation of Parsons Behle & Latimer

Dear Federal Election Commission, Introduction This is a complaint for violation of the Federal presidential election campaign laws. The parties I believe are in violation of the campaign contribution laws are presidential candidate Mitt Romney (“Romney”) and the law corporation of Parsons Behle & Latimer of Boise, Idaho (“Parsons”). For the reasons set forth below, I believe that Parsons has made contributions of legal services to candidate Romney of a kind not permitted to be made by a corporation under federal election campaign contribution laws. It is my understanding that legal services may be donated to a presidential candidate or presidential campaign committee only for legal services relating to complying with federal election laws. The legal services being donated by Parsons to Romney are not related to complying with federal election laws, but are for defending Romney in a patent infringement lawsuit. Accordingly, I believe the contribution of legal services by Parsons to Romney violate the prohibition of the donation of money or services by corporations to presidential candidates. Parties Complainant: Frank Michael Weyer 2032 Whitley Ave. Los Angeles CA 90068 Phone: 310-494-6616 Email: [email protected] Respondents: Parsons Behle & Latimer, a Law Corporation Mitt Romney 960 Broadway Ave., Suite 250 585 Commercial Street Boise, Idaho 83706 Boston MA 02109

Complaint for Violation of Federal Campaign Contribution Laws Page 3

Background Facts: 1. On February 27, 2012 EveryMD, a partnership of myself and co-inventor Troy Javaher, filed a patent infringement lawsuit against Romney and others in the U.S. District Court for the Central District of California (“California Patent Action”). A copy of the complaint is attached as Exhibit 1. The complaint alleges that Romney is infringing EveryMD’s U.S. Patent No. 7,644,122 (“the ‘122 patent”) by using Romney’s Facebook page at http://www.facebook.com/mittromney. A copy of the first page of Romney’s accused Facebook page is attached as Exhibit 2. 2. On March 1, 2012 I sent Romney a Notice of Lawsuit and a Request for Waiver of Summons. A copy of the cover letter included with the Notice of Lawsuit and Request for Waiver of Service is attached as Exhibit 3. As indicated in the letter, EveryMD offered to settle the lawsuit by offering Romney a license to the ‘122 patent for a one-time $500 license fee. 3. On April 10, 2012, Attorney John Zarian (“Zarian”) of Parsons filed a Notice of Appearance on behalf of Romney in the California Patent Action. A copy of the Notice of Appearance is attached as Exhibit 4. The Notice of Appearance identifies Parsons as “Attorneys for Defendant Mitt Romney” on the signature page. According to the records of the Idaho Secretary of State, Parsons is a Idaho professional corporation. A copy of the record for Parsons from the Idaho Secretary of State’s website is attached as Exhibit 5. According to the record, Zarian is the registered agent for Parsons. 4. On April 10, 2012, Parsons filed a detailed, five page “Notice of Related Cases” in the California Patent Action. The Notice of Related Cases did not respond substantively to the complaint in the Calfornia Patent Action, but only sought to have the action transferred to a different judge. A copy of the Notice of Related Cases is attached as Exhibit 6. On information and belief, preparation of the Notice of Related Cases required several hours of attorney time. 5. On April 11, 2012, I filed an Opposition to Parson’s Notice of Related Cases. A copy of my Opposition is attached as Exhibit 7. 6. On April 12, 2012, Parsons filed a three page Response to my Opposition to Parson’s Notice of Related Cases. A copy of Parson’s Response is attached as Exhibit 8. On information and belief, the preparation of Parson’s Response required at least an hour of attorney time. 7. According to an application for fees filed by Parsons in the United States Bankruptcy Court for the District of Utah on July 2, 2010 (the relevant pages of which are attached as Exhibit 9), the average hourly fees for Parson’s attorneys are in excess of $250.00 per hour. At this rate, the attorneys fees for preparation of the Notice of Related Cases and the Response by Parsons are in excess of $1000.00. 8. On information and belief, it is inconceivable that Romney would pay $1000.00 to Parsons for the preparation of the non-substantive Notice of Related Cases and the Response, which do not provide any benefit to Romney and which do not have any

EXHIBIT 1

Case 2:12-cv-01623-DDP-JEM Document 1 Filed 02/27/12 Page 1 of 10 Page ID #:4

EXHIBIT 2

EXHIBIT 3

TECHCOASTLAW® 2032 Whitley Avenue

Los Angeles, California 90068

Telephone: (310) 494-6616 Admitted to Practice in California and New York E-mail: [email protected]

March 1, 2012

Confidential Settlement Communication

Mitt Romney 585 Commercial Street Boston, MA 02109

Re: EVERYMD v. SANTORUM, ROMNEY, GINGRICH et al. Civil Action No. CV12-01623 DDP (JEMx)

Dear Mr. Romney, I have enclosed a copy of the complaint for patent infringement filed by EVERYMD against you and others on February 27, 2012 in the U.S. District Court for the Central District of California, as well as a Notice of Lawsuit and Request for Waiver of Service of Summons, two copies of a Waiver of Summons form, and a pre-paid return envelope for returning one copy of the Waiver of Summons form to me. The signed Waiver of Summons form must be returned to me by April 1, 2012 for you to avoid having to pay costs of serving the complaint resulting from your failure to waive service. EVERYMD realizes that you may have been unaware that use by you of your Facebook page constitutes infringement by you of the ‘122 patent. Accordingly, as a means of avoiding expensive litigation and to allow you to continue to use your Facebook page, EVERYMD is willing to grant you a limited, non-exclusive, non-transferable license to the ‘122 patent in return for a one-time payment of $500, providing that such $500 payment is received prior to the April 1, 2012 deadline for returning the waiver form. This $500 license fee is a special reduced price available to you only until the April 1, 2012 date. If you would like to take advantage of this one-time offer, please send a check for $500, payable to “EVERYMD,” to me at the above address before April 1, 2012. In return, EVERYMD will promptly dismiss you from the lawsuit and issue you a written patent license. I urge you to take advantage of this generous offer by EVERYMD.

Very truly yours, Frank Weyer

Encl. Complaint, Civil Action No. CV12-01623 DDP (JEMx) Notice of Lawsuit and Request for Waiver and Service of Summons Two (2) copies of Waiver of Service of Summons form Self-Addressed stamped envelope

EXHIBIT 4

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NOTICE OF APPEARANCE

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John N. Zarian (SBN 145080)PARSONS BEHLE & LATIMER960 Broadway Ave., Suite 250Boise, Idaho 83706Telephone: (208) 562-4900Facsimile: (208) 562-4901E-Mail: [email protected]

Attorneys for DefendantMitt Romney

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

EVERYMD, a partnership

Plaintiff,

v.

RICK SANTORUM, MITT ROMNEY, NEWT GINGRICH, GOLDMAN SACHS, J.P. MORGAN and DOES 1-10

Defendants.

Case No.: CV-12-01623 DDP (JEMx)

The Honorable Dean D. Pregerson


PLEASE TAKE NOTICE that John N. Zarian hereby enters his appearance as

counsel for defendant Mitt Romney in this matter. Mr. Zarian’s contact information is as

follows:

John N. Zarian (CA State Bar No. 145080)PARSONS BEHLE & LATIMER960 Broadway Avenue, Suite 250Boise, Idaho 83706Phone: (208) 562-4900Facsimile: (208) 562-4901Email: [email protected]


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DATED this 10th day of April, 2012.

PARSONS BEHLE & LATIMER

By /s/ John N. Zarian John N. ZarianAttorneys for Defendant Mitt Romney


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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 10th day of April, 2012, I electronically filed the foregoing document with the Clerk of the Court, using the CM/ECF system, which will automatically send email notification of such filing to all counsel who have entered an appearance in this action.

/s/ John N. ZarianJohn N. Zarian

4815-6319-8479.1


EXHIBIT 5

IDAHO SECRETARY OF STATEViewing Business Entity

Ben Ysursa, Secretary of State

[ New Search ] [ Back to Summary ]

[ Get a certificate of existence for PARSONS BEHLE & LATIMER, A PROFESSIONAL

CORPORATION ]

PARSONS BEHLE & LATIMER, A PROFESSIONAL

CORPORATIONPO BOX 45898

SALT LAKE CITY, UT 84145

Type of Business: CORPORATION, PROFESSIONAL ASSOCIATION

Status: GOODSTANDING, GOODSTANDING 02 Nov 2011

State of Origin: UTAH

Date of

Origination/Authorization:

02 Nov 2011

Initial Registered Agent: JOHN N ZARIAN

960 BROADWAY AVE STE 250

BOISE, ID 83706

Organizational ID / Filing

Number:

C192723

Number of Authorized Stock

Shares:

Date of Last Annual Report:

Original Filing:

[ Help Me Print/View TIFF ]

Filed 02 Nov 2011 CERTIFICATE OF

AUTHORITY

View Image (PDF format) View

Image (TIFF format)

Idaho Secretary of State's Main Page State of Idaho Home Page

Comments, questions or suggestions can be emailed to: [email protected]

IDSOS Viewing Business Entity

http://www.accessidaho.org/public/sos/corp/C192723.html 4/20/2012 12:23 PM

EXHIBIT 6

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NOTICE OF RELATED CASES [LOCAL RULE 83-1.3]

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Plaintiff,

v.


Defendants.

Case No.: CV12-01623 DDP (JEMx)



Defendant Mitt Romney (“Defendant”) respectfully submits this Notice of Related

Cases pursuant to Local Rule 83-1.3.

As explained below, the instant case is unmistakably related to another action –

Frank M. Weyer v. MySpace, Inc., Case No. 2:10-CV-00499-MRP-FFMx (the “Weyer

Action”) – previously filed in this District by the same attorney and the same real parties

in interest. Indeed, the instant case is apparently nothing more than a transparent attempt

to revive certain patent claims previously dismissed by the Hon. Mariana R. Pfaelzer and

to place them before a different judge in hopes of a more favorable outcome.


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Defendant has requested that Plaintiff inform the Court of the existence of the prior

case, but Plaintiff has failed to do so. Accordingly, for reasons of judicial efficiency,

economy, and fairness, Defendant now provides notice of that case.

I. THE PREVIOUSLY FILED ACTION

The previously-filed case was instituted on January 25, 2010 by plaintiffs Frank M.

Weyer (“Weyer”) – acting as plaintiff and plaintiffs’ counsel – and Troy Javaher

(“Javaher”). The case was dismissed by the Hon. Judge Pfaelzer more than 20 months

(and 69 docket entries) later in August of 2011. See generally Weyer Action, Order

Dismissing Case (Aug. 23, 2011) [Dkt. No. 68]. In her administrative dismissal (without

prejudice), the Hon. Judge Pfaelzer clearly retained jurisdiction over the matter. See id.

In the Weyer Action, plaintiffs Weyer and Javaher sued Facebook, Inc.

(“Facebook”) and MySpace, Inc. for purported infringement of business methods claimed

in U.S. Patent No. 7,644,122 (“the ‘122 Patent”). See Weyer Action, First Amended

Complaint at 2-3 (filed February 6, 2010) [Dkt. No. 7]. The Weyer Action was

administratively dismissed after the U.S. Patent and Trademark Office (“PTO”) re-

examined the ‘122 Patent and rejected all 15 of the ‘122 Patent’s claims (as well as

certain proposed new claims). See Weyer Action (Aug. 23, 2011) [Dkt. No. 68].

Because the PTO’s ruling is on appeal, see Weyer Action, Notice of Activities in

Reexamination Proceedings, Exh. 2 [Dkt. No. 65], the Hon. Judge Pfaelzer “retain[ed]

jurisdiction” and noted that the action would be “reinstated with this Court in the unlikely

event” that the patent holder prevailed on appeal of the PTO’s rejection of the claims of

the ‘122 Patent. See Weyer Action, Order of Dismissal [Dkt. No. 68].

II. THE INSTANT CASE

The foregoing appeal has not been decided, and the patent holder is in no different

position vis-à-vis its (rejected) patent claims than it was when the Hon. Judge Pfaelzer

administratively dismissed the Weyer Action in August 2011.


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Nevertheless, Weyer and Javaher have instituted the present action on behalf of

EVERYMD – which is alleged to be a partnership of Weyer and Javaher. See Case No.

CV12-01623-DDP-JEMx, First Amended Complaint (“FAC”) at ¶ 3 (filed Mar. 7, 2012)

[Dkt. No. 5]. In other words, the same two plaintiffs in the Weyer Action have filed the

instant case (hereinafter, the “EVERYMD Action”), albeit as a purported “partnership.”

Once again, plaintiff is represented by attorney (and real party in interest) Frank Weyer.

Like the Weyer Action, the instant EVERYMD Action asserts infringement of the

‘122 Patent through the use Facebook pages. See FAC at ¶ 26.

Instead of suing Facebook directly, however, Weyer and Javaher have now sued

certain users of Facebook – including defendants Rick Santorum, Mitt Romney, Newt

Gingrich, Goldman Sachs, J.P. Morgan, and Does 1 – 1,000 (each as a “presently

unidentified one of an estimated 4,000,000 additional FACEBOOK business account

holders that are subject to the jurisdiction of this Court).” See FAC at ¶ 9.

III. THIS CASE IS RELATED TO THE PREVIOUSLY FILED ACTION

Having had their patent infringement suit against Facebook dismissed, and having

otherwise failed to extract compensation from Facebook, Weyer and Javaher now seek to

prosecute the very same claims dismissed by the Hon. Judge Pfaelzer against certain

users of Facebook. See FAC at ¶ 28 (“FACEBOOK’s failure to purchase the ‘122 patent

or otherwise obtain rights under the ‘122 patent leaves holders of FACEBOOK business

accounts liable for infringement of the ‘122 patent for unauthorized commercial use of

FACEBOOK pages produced by FACEBOOK using the method of the ‘122 patent”).

Clearly, the instant case is “related” to the previously-filed Weyer Action.

Local Rule 83-1.3 defines related cases as those that: (a) “arise from the same or a

closely related transaction, happening or event”; (b) “call for determination of the same

or substantially related or similar questions of law and fact”; (c) would “entail substantial

duplication of labor if heard by different judges”; or (d) would “involve the same patent,

trademark or copyright.” Local Rule 83-1.3.1(a)-(d) (emphasis added).


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This Court’s Local Rules also provide that “[w]henever an action is dismissed by a

party or by the Court before judgment and thereafter the same or essentially the same

claims, involving the same or essentially the same parties, are alleged in another action,

the later-filed action shall be assigned to the judge to whom the first-filed action was

assigned.” Local Rule 83-1.2.2 (“Duty on Refiling of Actions”) (emphasis added).

In addition, Local Rule 38-1.2.2 provides that “[i]t shall be the duty of every

attorney in any such later-filed action to bring those facts to the attention of the Court . . .

by the filing of a Notice of Related Case(s) pursuant to L.R. 83-1.3.” Id.

Here, the instant EVERYMD Action is undeniably “related” to the previously-filed

Weyer Action, and plaintiffs’ counsel improperly failed or refused to so advise this Court,

for at least the following reasons:

The instant EVERYMD Action and the previously-filed Weyer Action arise

from the same or very closely related conduct and events, namely, the

creation and/or use of certain Facebook accounts in a way that purportedly

infringes the claims of the ‘122 Patent.

The two actions call for determination of the same or substantially related

or similar questions of law and fact, that is, a determination of identical

questions of patent validity, enforceability and/or infringement directed to

the ‘122 Patent and the purportedly infringing use of certain Facebook

accounts.

The two actions would entail substantial duplication of labor if heard by

different judges, since the Hon. Judge Pfaelzer is familiar with the

previously-filed Weyer Action. (In fact, the Hon. Judge Pfaelzer retained

jurisdiction over the previously-asserted claims at the time of their

administrative dismissal.)

Finally, the instant EVERYMD Action and the previously-filed Weyer action

involve the same patent, trademark or copyright, namely, the ‘122 Patent.


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Under the circumstances, the instant EVERYMD Action and the previously-filed

Weyer Action are clearly related. Thus, Defendant submits, the instant case should be

transferred to the Hon. Judge Pfaelzer for further proceedings.

To be sure, Defendant believes that this case (asserting purported infringement of

rejected patent claims) is entirely without merit. However, irrespective of the merits, the

matter should be properly placed before the Hon. Judge Pfaelzer for further proceedings.

DATED this 10th day of April, 2012.


By /s/ John N. Zarian John N. ZarianAttorneys for Defendant Mitt Romney


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I HEREBY CERTIFY that on the 10th day of April, 2012, I electronically filed the foregoing document with the Clerk of the Court, using the CM/ECF system, which will automatically send email notification of such filing to all counsel who have entered an appearance in this action.


4837-4436-7631.2


EXHIBIT 7

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-1- Opposition to Notice of Related Cases

Frank M. Weyer, Esq. (State Bar No. 127011) TECHCOASTLAW® 2032 Whitley Ave. Los Angeles CA 90068 Telephone: (310) 494-6616 Facsimile: (310) 494-9089 [email protected] Attorney for Plaintiff EVERYMD

IN THE UNITED STATES DISTRICT COURT


EVERYMD, a partnership,

Plaintiff,

v. RICK SANTORUM, MITT ROMNEY, NEWT GINGRICH, GOLDMAN SACHS, J.P. MORGAN and DOES 1 - 10

Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Civil Action No. CV12-01623 DDP (JEMx)

PLAINTIFF’S OPPOSITION TO DEFENDANT MITT ROMNEY’S NOTICE OF RELATED CASES PURSUANT TO LOCAL RULE 83-1.3.2 Judge: Hon. Dean D. Pregerson

Pursuant to Local Rule 83-1.3.2, Plaintiff EveryMD hereby opposes the Notice

of Related Cases (“Romney’s Notice”) filed by Defendant Mitt Romney (“Romney”)

on April 10, 2012. As shown below, Romney’s Notice is based on an outdated and

superceded version of Local Rule 83-1.3.1. Under the applicable current version,

Romney’s Notice is improper.


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Romney’s Notice is Incorrectly Based on an Outdated Version of Local Rule 83-

1.3.1

Romney bases Romney’s Notice on an outdated, superceded version of Local

Rule 83-1.3.1. In Romney’s Notice, Romney incorrectly states that Local Rule 83-

1.3.1 defines related cases as those that “involve the same patent, trademark or

copyright.” Romney states:

Romney’s Incorrect Citation of Local Rule 83-1.3.1

from Page 3 of the Notice (emphasis in original)

While it is true that a previous version of Local Rule 83-1.3.1 defined “related

cases” as cases that involved the same patent, the rule has since changed. Under

current Local Rule 83-1.3.1, cases are not related merely because they involve the

same patent. Instead, Local Rule 83-1.3.1 now requires the same relatedness between

patent cases as for other cases. Local Rule 83-1.3.1 now states:

L.R. 83-1.3.1 Notice. At the time a civil action (including a notice of

removal or bankruptcy appeal) is filed, or as soon as known thereafter,

the attorney shall file and serve on all parties who have appeared a Notice

of Related Case(s), stating whether any action previously filed or

currently pending in the Central District and the action being filed

appear:

(a) To arise from the same or a closely related transaction, happening or

event; or

(b) To call for determination of the same or substantially related or

similar questions of law and fact; or


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(c) For other reasons would entail substantial duplication of labor if heard

by different judges; or

(d) To involve the same patent, trademark or copyright, and one of the

factors identified above in a, b or c is present.

Local Rule 83-1.3.1 (emphasis added). As shown below, although this case and the

MySpace Action involve the same patent, they do not include any of the other three

factors required by Local Rule 83-1.3.1 for cases to be “related.” Accordingly, this

action and the MySpace action are not “related” under the current, applicable version

of Local Rule 83-1.3.1.

This Action Does Not Arise from the Same or a Closely Related Transaction,

Happening, or Event as the MySpace Action

The MySpace Action arises from the independent actions of each of MySpace,

Inc. (“MySpace”) and Facebook, Inc. (“Facebook”), the defendants in the MySpace

Action, in practicing the invention of the patent in suit. MySpace and Facebook’s

liability for patent infringement in the MySpace action arose prior to and

independently of any act of any of Romney or any of the other defendants in this

action. The facts pled in the MySpace Action that give rise to the causes of action

against MySpace and Facebook in the MySpace Action did not, do not, and could not

give rise to any cause of action against any of the defendants in this action.

Specifically, no action against Romney and the other defendants in this action could

have been brought based on the acts of MySpace and Facebook alleged in the

MySpace Action. Conversely, the acts of the defendants from which the present

action arises are not relevant to the causes of action pled in the MySpace Action. The

causes of action against defendants herein arose after and separately from the acts and

transactions of MySpace and Facebook that gave rise to the causes of action pled in

the MySpace Action. Accordingly, this action does not “arise from the same or a

closely related transaction, happening, or event” as the MySpace Action, and the

MySpace Action does not “arise from the same or a closely related transaction,

happening, or event” as this action.


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This Action Does Not Call for Determination of the Same or Substantially

Related Questions of Law and Fact

While there are naturally some common questions of law and fact that are

involved in this action and the MySpace Action (e.g. the validity and meaning of the

claims of the patent in suit), the questions of law and fact in this action and in the

MySpace Action as a whole are not as the same or even substantially related. Instead,

each action calls for the determination of questions of law and fact that are not at issue

at all in the other action. For example, the causes of action in this action arise under a

different statutory basis (35 U.S.C. §271(g)1) than those in the MySpace Action (35

U.S.C. §271(a)2). Further, the MySpace action calls for the determination of facts

regarding the actions of MySpace that give rise to MySpace’s liability in the MySpace

Action (e.g. how and when MySpace began practicing the patented invention and the

extent of MySpace’s use of the patented invention) that are not at all relevant in the

current action and have no bearing or effect on the defendants in this action or their

liability to Plaintiff. Similarly, this action calls for the determination of facts

regarding the actions of Romney and the other defendants herein (e.g. how and when

Romney and each of the other defendants opened Facebook business accounts, when

1 35 U.S.C. 271(g) states:

(g) Whoever without authority imports into the United States or offers to sell, sells, or uses within the United States a product which is made by a process patented in the United States shall be liable as an infringer, if the importation, offer to sell, sale, or use of the product occurs during the term of such process patent. In an action for infringement of a process patent, no remedy may be granted for infringement on account of the noncommercial use or retail sale of a product unless there is no adequate remedy under this title for infringement on account of the importation or other use, offer to sell, or sale of that product. A product which is made by a patented process will, for purposes of this title, not be considered to be so made after -

(1) it is materially changed by subsequent processes; or

(2) it becomes a trivial and nonessential component of another product.

2 35 U.S.C. 271(a) states:

(a) Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States, or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.


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they created their respective Facebook business pages, the extent to which they use

their respective business pages, and when and if they stopped such use) that are not

relevant to the liability of MySpace or Facebook in the MySpace action and that have

no bearing or effect on the defendants in the MySpace action or their liability.

Accordingly, while there is some overlap in the questions of fact and law at issue in

the two actions, the questions of law and fact as a whole are not the same or even

substantially the same.

There Will Be No Substantial Duplication of Labor if This Action is Heard by a

Different Judge than the MySpace Action

There will be no substantial duplication of labor if this action is heard by a

different judge than the MySpace Action. The MySpace Action was stayed more than

18 months ago very early in the case on procedural grounds (namely a request for

reexamination having been filed by Facebook) without any substantive matters ever

having been before the Hon. Judge Mariana R. Pfaelzer, the judge in the MySpace

Action. Judge Pfaelzer lifted the stay and dismissed the case in August 2011 after the

reexamination request was granted by the Patent Office, again without any substantive

question of law or fact regarding the patent in suit or the activities of defendants

MySpace and Facebook having been before her. Judge Pfaelzer never needed to

examine the patent claims, the prior art, or determine whether there were any

infringing activities by the defendants. To the extent that any facts regarding the

validity of the patent in suit, the scope and meaning of the patent claims, or the actions

of Facebook will have to be determined in the present action, there will be no

duplication of any effort, because no determination of any such facts was made by

Judge Pfaelzer in the now dismissed MySpace Action.

Language in Judge Pfaelzer’s Order Dismissing the MySpace Action is

Meaningless Dicta

The order administratively dismissing the MySpace Action was prepared, at

Judge Pfaelzer’s request, by defendant Facebook, and then signed without change by


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Judge Pfaelzer. In the order, Facebook included the self-serving (from a public

relations aspect) but legally meaningless adverb “unlikely” in the final paragraph of

the order, which stated that “this action shall be reinstated by the Court in the unlikely

event that Plaintiffs obtain claims from the patent-in-suit following reexamination and

appeals.” In Romney’s Notice, Romney misrepresents the significance of the word

“unlikely,” making it appear that the word was based on some kind of factual and

legal determination by Judge Pfaelzer of the merits of Facebook’s reexamination

request. It should be noted that at the time Facebook’s reexamination request was

granted, Facebook presented purely statistical evidence about how often prior to that

time a reexamination has resulted in the cancellation of all claims in a patent.

However, the validity of a patent is not determined by statistics but by facts. Further,

the percentages cited by Facebook at that time have significantly changed, as the

Patent Office’s own Board of Patent Appeals has been overturning Patent Examiner’s

findings of invalidity in patent reexamination procedings. See, e.g., the recent

decision of the Board of Patent Appeals attached as Appendix A.

In sum, this case is not “related” to the MySpace Action under the current,

applicable version of Local Rule 83-1.3.1. Plaintiff accordingly respectfully opposes

Romney’s Notice, and respectfully requests the Hon. Judge Pregerson to retain

jurisdiction over this action.

Respectfully submitted,

TECHCOASTLAW®

Dated: April 10, 2012 By: _________________________________

Frank M. Weyer (State Bar No. 127011)

2032 Whitley Ave.

Los Angeles, CA 90068

(310) 494-6616

Fax (310) 494-9089

[email protected]

Attorney for Plaintiff EVERYMD


EXHIBIT 8

1RESPONSE TO PLAINTIFF’S OPPOSITION TO DEFENDANT’S NOTICE OF RELATED CASES [LOCAL RULE 83-1.3]

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Plaintiff,

v.


Defendants.

Case No.: CV12-01623 DDP (JEMx)


RESPONSE TO PLAINTIFF’S OPPOSITION [DKT. 10] TODEFENDANT’S NOTICE OF RELATED CASES [DKT. 9]

[LOCAL RULE 83-1.3]



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Defendant MITT ROMNEY respectfully submits this response to the opposition

filed by plaintiff EveryMD [Dkt. 10] to Defendant’s Notice of Related Cases. [Dkt. 9].

The opposition illustrates the desperation with which Plaintiff is seeking to avoid

the proper assignment of this case to Judge Pfaelzer – who recently dismissed (and

retained jurisdiction over) a prior action involving the same patent and essentially the

same plaintiffs and claims. See Plaintiff’s Opp. at 5-6.1 Plaintiff’s desire to shop for a

different judge, however, does not alter the obvious fact that the two cases are related.

The leading ground for the opposition is nothing more than an argument that the

fourth factor in Local Rule 83-1.3.1 (two cases “involve the same patent, trademark or

copyright”) requires that one of the first three factors be present too. Although

Defendant’s original notice of related cases did not address this issue directly, Plaintiff’s

argument makes a distinction without a difference. As set forth in Defendant’s original

notice, in addition to the fourth factor, each of the other three factors is present here.

Thus, contrary to Plaintiff’s mischaracterization, Defendant does not claim that the

two cases at issue are related merely because they involve the same patent. As explained

in Defendant’s original notice, the two cases are related because all four of the factors in

Local Rule 83-1.3.1 are clearly present. Specifically, the cases are related because:

The two cases arise from the same or a closely related transaction, happening or

event, namely, the creation and/or use of certain Facebook accounts in a way that

purportedly infringes the claims of the ’122 Patent. It is simply disingenuous for

Plaintiff to argue that the acts from which this case purportedly arises (i.e., holding

and using online Facebook accounts) are somehow “not relevant” to the prior case

1 Plaintiff’s opposition maligns Judge Pfaelzer’s prior order of dismissal for including an allegedly “self-serving” provision that the case will be reinstated in the unlikely event the patent holder prevails on appeal to the Board of Patent Appeals and Interferences. SeePlaintiff’s Opp. at 5-6. Plaintiff’s opposition also burdens this Court unnecessarily by attaching a 21-page order affirming-in-part and reversing-in-part the decision of a patent examiner in an entirely unrelated case – ostensibly in support of the unremarkableproposition that examiners’ decisions are occasionally reversed, in whole or in part.



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– in which Facebook was sued for providing online Facebook accounts to its

members who hold and use those Facebook accounts.2

The two cases call for determination of the same or substantially related or

similar questions of law and fact, that is, a determination of many identical

questions of patent infringement, validity and enforceability directed to the ‘122

Patent and the use of Facebook accounts. Any attempt to distinguish 35 U.S.C.

271(a) and 35 U.S.C. 271(g) is unavailing, because substantially related or similar

questions of infringement, validity and enforceability are raised in either event.

The two cases would entail substantial duplication of labor if heard by different

judges, since the Hon. Judge Pfaelzer is already familiar with the facts and legal

issues raised in the previously-filed action. At a minimum, Judge Pfaelzer is very

well acquainted with the procedural issues raised by the ongoing attempts to

litigate the ‘122 Patent during the pendency of reexaminations and related appeals.

In addition, the two cases involve the very same patent, trademark or copyright,

namely, the ‘122 Patent. Furthermore, as shown above, not just one (as required),

but all three of the other factors in Local Rule 83-1.3.1 (a), (b), and (c) are present.

Under the circumstances, the relatedness of the two actions is unmistakable and

Plaintiff’s opposition is unavailing. Accordingly, Defendant submits that the instant case

should be transferred to the Hon. Judge Pfaelzer for further proceedings.

Dated: April 12, 2012 Respectfully submitted,


By /s/ John N. ZarianJohn N. ZarianAttorneys for Defendant Mitt Romney

2 As explained in Defendant’s original notice, the plaintiffs in the prior case – Frank M. Weyer and Troy Javaher – are also the real parties in interest in this case as partners in the alleged “EveryMD” partnership. Mr. Weyer represents all plaintiffs in both cases.



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I HEREBY CERTIFY that on the 12th day of April, 2012, I electronically filed the

foregoing document with the Clerk of the Court, using the CM/ECF system, which will

automatically send email notification of such filing to all counsel who have entered an

appearance in this action.



EXHIBIT 9

4830-8418-9446.1

J. THOMAS BECKETT (5587)DAVID P. BILLINGS (11510)


One Utah Center201 South Main Street, Suite 1800Post Office Box 45898Salt Lake City, Utah 84145-0898Telephone: (801) 532-1234Email: [email protected];

[email protected]

Counsel to the Official Committee

IN THE UNITED STATES BANKRUPTCY COURT

DISTRICT OF UTAH, CENTRAL DIVISION

In re:

WATERFORD FUNDING, LLC,

Debtor

Bankruptcy Case No. 09-22584

(Jointly administered with No. 09-22583)

Hon. R. Kimball MosierChapter 11

SECOND INTERIM AND FINAL FEE APPLICATION

OF PARSONS BEHLE & LATIMER AS COUNSEL TO

THE UNSECURED CREDITORS COMMITTEE

Parsons Behle & Latimer (“Parsons Behle” or the “Firm”), counsel to the Official

Committee (the “Committee”) of Unsecured Creditors of Waterford Funding, LLC and

Waterford Loan Fund, LLC, (“Waterford” or the “Debtors”), pursuant to 11 U.S.C. §§ 330(a),

331, 503(b)(2) and 507(a)(1), and Federal Rule of Bankruptcy Procedure 2016, hereby files its

Second Interim and Final Fee Application (the “Second Interim and Final Fee Application”) for

final approval of:

Case 09-22584 Doc 568 Filed 07/02/10 Entered 07/02/10 19:11:26 Desc Main Document Page 1 of 34

4830-8418-9446.1 2

(i) $7,100.00 in fees and $17.35 in expenses awarded to the Firm on an interim

basis in connection with its First Interim Fee Application, filed on September 4, 2009

(docket #148) (the “First Interim Fee Application”); and

(ii) $35,797.25 in fees and $894.46 in expenses earned and incurred by the Firm

for the period of time between August 1, 2009 and January 25, 2010 (the “Second and

Final Compensation Period”), less

(iii) $6,000 discretionary billing reduction.

I. BACKGROUND.

1. On March 20, 2009 (the "Petition Date"), the Debtors filed petitions to commence

voluntary cases under chapter 11 of title 11 of the United States Code, 11 U.S.C. §§ 101, et seq.

(the "Bankruptcy Code").

2. On June 5, 2009, this Court entered an order authorizing the joint administration

of the Debtors' cases.

3. On January 6, 2010, Gil A. Miller was appointed the chapter 11 trustee (the

“Trustee”) of the Debtor’s estate.

4. No reorganization plan or disclosure statement has been filed in these cases.

II. THE COMMITTEE AND ITS ENGAGEMENT OF PARSONS BEHLE.

5. The Committee was constituted by the United States Trustee (the “U.S. Trustee”)

on May 13, 2009. See Case No. 09-22583, Docket No 25.

6. Parsons Behle was duly selected by the Committee as its counsel on May 29,

2009.


4830-8418-9446.1 3

7. Parsons Behle commenced to perform services and incur expenses on behalf of

the Committee in the Debtors’ bankruptcy cases on May 29, 2009.

8. On June 12, 2009, the Committee filed its Application for Authorization to

Engage Parsons Behle & Latimer as its Counsel (the “Employment Application”) [Docket #56].

This Court’s order granting the Employment Application (the “Order”) was entered on August 4,

2009 [Docket #90]. The terms and conditions of Parsons Behle’s engagement as counsel to the

Committee are set forth in the Employment Application and the Order.

9. On October 1, 2009, the Court granted the Debtors’ motion for substantive

consolidation [Docket #173]. Accordingly, Parsons Behle has not allocated its fees and costs to

either estate in particular. The fees and costs described in this application are the total of fees

and costs for both estates together.

10. The summary required by the Fee Guidelines of the U.S. Trustee is attached

hereto as Exhibit “A.”

III. PARSONS BEHLE’S PRIOR APPLICATIONS FOR COMPENSATION

AND REIMBURSEMENT, AND THIS COURT’S AWARDS THEREON.

11. On September 4, 2009, Parsons Behle served and filed its First Interim Fee

Application for compensation for fees earned in the amount of $7,199.00 and for reimbursement

of expenses incurred in the amount of $17.35, all with respect to the period of time between June

12, 2009 and July 31, 2009.

12. By its Order dated October 29, 2009, this Court approved Parsons Behle’s First

Interim Fee Application to the extent of $7,199.00 for compensation for fees earned and $17.35

for reimbursement of expenses incurred.


4830-8418-9446.1 4

IV. PAYMENTS TO PARSONS BEHLE IN RESPECT OF PREVIOUS FEE

APPLICATIONS.

13. There have been no previous payments to Parsons Behle in respect of any fee

applications.

V. PARSONS BEHLE’S PRESENT APPLICATION: FEES.

14. Parsons Behle has provided detail describing the tasks performed, and the time

required to perform those tasks, at Exhibit “B.”

15. The following professional employees of Parsons Behle have performed services

on behalf of the Committee during the Final Compensation Period:

SUMMARY BY TIMEKEEPER

NAME (INITIALS) TITLE

HOURLY

RATE

TOTAL

HOURS

TOTAL

FEES

J. Thomas Beckett (JTB) Shareholder $320.00 91.50 $29,280.00

Erik A. Christiansen (EAC) Shareholder $340.00 2.80 952.00

David P. Billings (DPB) Associate $180.111 8.90 1,603.00

Linda Osmond-Myers (LO) Paralegal $135.00 29.35 3,962.25

TOTAL HOURS & FEES 132.55 $35,797.25

BLENDED HOURLY RATE: $270.07

11 The billing rate for David P. Billings was increased from $180.00 to $190.00 in January, 2010.


EXHIBIT 10

Idahostatesman.com

Boise attorney represents Romney, Gingrich andSantorum in patent case

By Bill Roberts

Posted: 10:23am on Apr 17, 2012; Modified: 10:37am on Apr 17, 2012

John Zarian, a Boise intellectual property attorney who worked as a volunteer for Mitt Romney during the past twopresidential campaigns, is now defending him in a patent infringement case, along with Rick Santorum and Newt

Gingrich.

The three, who have dominated the Republican political landscape for months in their quest to be the party’s

presidential candidate, were named in a lawsuit earlier this year.

The suit was filed by the co-inventors of a process they say is being used on Facebook. Frank Weyer, one of theinventors and a patent attorney in Los Angeles, filed the action against the three high-profile candidates along

with JP Morgan and Goldman Sachs. The co-inventors had earlier field a suit against Facebook, but that case ison hold.

Zarian has been a Romney supporter and volunteer. He did legal work for the candidate about the time of theIdaho caucus was held last month and was contacted by Romney’s team about representing him, Zarian said.

The other two candidates contacted Zarian shortly after.

Zarian is part of the Utah law firm Parsons Behle & Latimer, that has a Boise office. The firm has a nationalreputation in intellectual property. Zarian practiced law for 16 years in Southern California before moving to Boise

to create the law firm of Zarian Midgley and Johnson, which merged with the Utah firm in November.

© 2012 www.idahostatesman.com and wire service sources. All Rights Reserved. http://www.idahostatesman.com

EXHIBIT 11

A T T O R N E Y P R O F I L E P A R S O N S B E H L E & L A T I M E R ®

John N. Zarian

Patent & Intellectual Property LitigationComplex Business LitigationCommercial LitigationTrials & Appeals

Professional Highlights:

!"#$%#&'!()*+,!-./.,!01,#2!-)$$.33##'! U.S. District Court for the District of Idaho (2009-present)

!-4+.&5#&2)6'!(.3.7+3.)6!8#*3.)6'!9:+4)!83+3#!Bar (2009-11)

!-4+.&5#&2)6'!963#,,#*31+,!;&)5#&3<!(+=!8#*3.)6'!9:+4)!83+3#!>+&!?@AABCADE

!-4+.&5#&2)6'!F:.3)&.+,!G:/.2)&<!>)+&:'! The Advocate (Idaho State Bar) (2009-11)

!-4+.&5#&2)6'!J. Reuben Clark Law Society'!>).2#!*4+53#&!?@AAHCABE

!I#,,)='!Litigation Counsel of America'!J&.+,!(+=<#&!K)6)&+&<!8)*.#3<!?@AAHC5&#2#63E

!"#$%#&'!Association of Business Trial Lawyers (2004-present)

!G:L16*3!;&)M#22)&'!-),,#7#!)M!(+='!N6./#&2.3<!)M!9:+4)'!O963&):1*3.)6!3)!963#,,#*31+,!;&)5#&3<!(+=P!?Q.63#&!@AR@E

Professional Recognition:

!0#*.5.#63'!9:+4)!83+3#!>+&!8#&/.*#!G=+&:!?@ARAE

!(.23#:!.6!Mountain States Super Lawyers ?9:+4)'!N3+4'!S#/+:+'!Q<)$.67!+6:!")63+6+E'!.6!34#!5&+*3.*#!+&#+!)M!963#,,#*31+,!;&)5#&3<!(.3.7+3.)6!?2.6*#!@AABE

!(.23#:!.6!Super Lawyers Business Edition'!in the practice area of Intellectual Property ?2.6*#!@AABE

!0#*)$$#6:#:!%<!Chambers USA as a leader in field of Commercial Litigation (since 2010)

!(.23#:!.6!Southern California Super Lawyers'!in the practice area of Business Litigation (2006)

!0+3#:!GTU!%<!Martindale-Hubbell (since @AAVE'!.6:.*+3.67!/#&<!4.74!3)!5&##$.6#63!,#7+,!+%.,.3<!+6:!/#&<!4.74!#34.*+,!23+6:+&:2!%+2#:!)6!#/+,1+3.)62!%<!5##&2!.6!34#!,#7+,!profession

John Zarian’s legal practice emphasizes

.63#,,#*31+,! 5&)5#&3<! +6:! *)$5,#W! %12.6#22!

,.3.7+3.)6X! K#! 4+2! 2#&/#:! +2! ,#+:! *)162#,!

.6! $+33#&2! .6/),/.67! 5+3#632'! 3&+:#$+&Y2'!

*)5<&.7432'! 3&+:#! 2#*&#32'!16M+.&! *)$5#3.3.)6'!

*,+22! +*3.)62'! *)63&+*31+,! :.2513#2'! %12.6#22!

3)&32'! 2#*1&.3.#2'! +63.3&123'! &#+,! #23+3#'!

*)$$#&*.+,! ,+=! +6:! =&)67M1,! :#+34! *,+.$2X!

"&X!Z+&.+6!.2!+6!#W5#&.#6*#:!3&.+,!,+=<#&X!

Intellectual Property

[email protected]

Parsons Behle & Latimer

960 Broadway Ave., Ste. 250

Boise, Idaho 83706

1.208.562.4902

www.pa rsonsbeh l e . com

P A G E 2 J O H N N . Z A R I A N

Recent Community Activities:

!"#$%#&'!9:+4)!I.6+6*#!-)$$.33##'!".33!0)$6#<!5&#2.:#63.+,!*+$5+.76!?@ARRCR@E'!Idaho legal liaison (2011-12)

!"#$%#&'!I.6+6*#!-)$$.33##'!(+%&+:)&!M)&!Idaho congressional campaign (2010)

!"#$%#&'!G:+!-)163<!0#51%,.*+6!-#63&+,!-)$$.33##!?@AABCR@E'!#,#*3#:!5&#*.6*3!*)$$.33##$+6!?@AAB'!@ARAE

!"#$%#&'!S+3.)6+,!83##&.67!-)$$.33##'!(+=<#&2!M)&!0)$6#<!?@AAHCABE'!N3+4!,#7+,!,.+.2)6!?@AABE

!"#$%#&'!0#51%,.*+6!S+3[,!(+=<#&2!G22[6!?@AAVC5&#2#63E'!9:+4)!,.+.2)6!?2.6*#!@AA\E

Education:

University of Southern California Juris Doctor,!RDBD

"#$%#&'!N8-!(+=!0#/.#='!RDBBCBD!University of Utah "X8X'!I.6+6*#'!RDBD

"+&&.6#&!8X!F**,#2!I#,,)='!RDB]CB\University of Utah K)6)&2!>XGX'!;),.3.*+,!8*.#6*#'!RDBV

831:#63%):<!;&#2.:#63'!RDB@CB^

Admissions:

Idaho State BarUtah State BarCalifornia State BarNX8X!_.23&.*3!-)1&3'!_.23&.*3!)M!9:+4)NX8X!_.23&.*3!-)1&32!M)&!34#!S)&34#&6'

F+23#&6'!-#63&+,!+6:!8)134#&6!_.23&.*32! of California

NX8X!_.23&.*3!-)1&3'!_.23&.*3!)M!N3+4NX8X!_.23&.*3!-)1&3'!F+23#&6!_.23&.*3!)M!J#W+2NX8X!-)1&3!)M!G55#+,2!M)&!34#!F.7434'!S.634!

+6:!I#:#&+,!-.&*1.32U.S. Supreme Court

Recent Publications:

!OG,3#&6+3./#2!3)!;+3#63!(.3.7+3.)6'P! Idaho Business Review'!M)&34*)$.67! ?"+&*4!@AR@E

!O"+6+7.67! )̀1&!963#,,#*31+,!;&)5#&3<!G22#32'P!Idaho Business & Law'!5X!VG!?I+,,!@ARRE

!OUniloc!+6:!34#!_#/#,)5.67!(+=!)M!;+3#63!_+$+7#2a!92!J4#&#!83.,,!+!S##:!M)&!0#M)&$b'P!The Advocate'!5X!@@!?c16#dc1,<!@ARRE

!O81&/./.67!+!e;+3#63!J&),,f!G33+*Y'P!Idaho Business & Law'!5X!R@!?Q.63#&!@ARAE

!ON6:#&23+6:.67!G63.3&123!(+=!F22#63.+,!3)!>12.6#22#2'P!Idaho Business Review'!5!^I!?8#53X!@H'!@ARAE

!OJ4#!_.7.3+,!G7#!-)63.61#2!3)!J&+62M)&$!>12.6#22'P!Idaho Business & Law'!5X!R^!(Summer 2010)

!O963#,,#*31+,!;&)5#&3<a!;&)3#*3! )̀1&!G22#32!>#M)&#!>+6Y&153*<!83&.Y#2'P!Idaho Business & Law'!5X!]!?I+,,!@AADE

!O;+3#63!(.3.7+3.)6!.6!34#!_.23&.*3!)M!9:+4)'P!The Advocate'!5X!^@!?8#53X!@AAHE

!O>#!_.,.7#63!0#7+&:.67!J&+:#$+&Y!(+=!-4+67#2'P!Idaho Business Review'!5XRDG! ?c1,<!@'!@AAHE

!O>+*Y:+3.67!0#g1.&#2!-+13.)6'!I)&#34)1743'P!Idaho Business Review'!5X!^VG!?h*3X!D'!@AA\E

!O;&)3#*3.67! )̀1&!963#,,#*31+,!;&)5#&3<!C! B!J.52'P!Idaho Business Review'!5X!RDG! ?"+&X!R^'!@AA\E

!O0#3&)!())Ya!c)46!SX!Z+&.+6!;&#/.#=2!34#!815&#$#!-)1&3f2!01,.67!)6!34#!0#3&)+*3./.3<!)M!;&)5!\V'P!Los Angeles Lawyer Magazine'!! 5X!@@!?_#*X!@AA]E

!OK)=!Q.,,!34#!815&#$#!-)1&3!_#*.:#!34#!0#3&)+*3./.3<!)M!;&)5X!\VbP!California Section 17200 Report!?"#+,#<f2!c16#!@AA]E

Recent Media Appearances:

!Viewpoint'!iJT>'!-4+66#,!H!?_#*X!RB'!@ARRE?34.&:!I#:#&+,!L1:.*.+,!5)2.3.)6!.6!9:+4)E

!Viewpoint'!iJT>'!-4+66#,!H!?"+<!D'!@ARAE?6#=!5+3#63!,)*+,!&1,#2!.6!9:+4)E

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