pioneer hi-bred international, inc.’s supplemental brief ... · pdf...

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

THE NORTH CAROLINA FARMERS’ ASSISTANCE FUND, INC.,

Plaintiff, v. MONSANTO COMPANY, et al.,

Defendants.

Civil Action No. 1:08-cv-409-TDS-PTS

PIONEER HI-BRED INTERNATIONAL, INC.’S SUPPLEMENTAL BRIEF IN

SUPPORT OF ITS MOTION TO DISMISS CONCERNING THE CONSTITUTIONALITY OF 35 U.S.C. § 292

Defendant Pioneer Hi-Bred International, Inc. (“Pioneer”), pursuant to the Court’s

Order [#67] dated April 14, 2009, hereby files its Supplemental Brief in Support of its

Motion to Dismiss Concerning the Constitutionality of 35 U.S.C. § 292.

INTRODUCTION

Courts in two other qui tam actions recently have addressed constitutional

challenges to 35 U.S.C. § 292 where, as here, the government has intervened to defend

the constitutionality of the statute: Pequignot v. Solo Cup, No. 1:07-CV-897

(LMB/TCB) (E.D.Va.) and Harrington v. CIBA Vision Corp., No. 3:08-CV-00251

(W.D.N.C.). The common issue in all three actions is whether Section 292 violates the

separation of powers doctrine, specifically the Take Care Clause of Article II of the

United States Constitution, because it contains no procedural safeguards to ensure that

Case 1:08-cv-00409-TDS-PTS Document 70 Filed 04/28/2009 of 15

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the Executive Branch has “sufficient control” over the litigation, as the United States

Supreme Court required in Morrison v. Olson, 487 U.S. 654, 696 (1988).

Although these three pending qui tam actions are similar, the parties in Solo Cup

and CIBA devoted substantial briefing to the issue of a qui tam relator’s Article III

standing (which is not at issue here), thereby limiting their abilities to address the Article

II issues as fully as in this case.1 Nonetheless, Pioneer believes that a discussion of recent

developments in these two cases will be helpful to the Court’s analysis of the Article II

issues, particularly given that the Solo Cup and CIBA courts focused oral arguments and

supplemental briefing on these issues.

ARGUMENT

I. THE CIBA COURT ASKED FOR SUPPLEMENTAL BRIEFING ON AN ISSUE THAT HIGHLIGHTS THE EXECUTIVE BRANCH’S COMPLETE LACK OF CONTROL OVER SECTION 292 QUI TAM ACTIONS.

On March 26, 2009, Judge Frank D. Whitney heard oral arguments from the

parties and the government in the CIBA matter. (Prelim. Tr. Mot. Hr’g., Harrington v.

CIBA Vision Corp., Civil Action No. 3:08-cv-251 (“CIBA Tr.”) attached as Exhibit A.)

After argument on Article III “standing” issues, the parties addressed the Take Care

Clause issues, (id. at 12:10), which dominated the remainder of the hearing. The parties

and court focused on whether there are procedural safeguards in Section 292 that would

enable the Executive to control the litigation, (id. at 21:3-16), and whether other rules and

statutes provide the Executive with “sufficient control” over Section 292 qui tam actions. 1 In Solo Cup, the parties also disagreed on the preliminary issue of whether Section 292(b) is a qui tam statute, which Pioneer does not dispute.


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(Id. at 21:17-22:9; see also 23:4-25:24, 29:2-33:4, 35:3-41:23, 54:24-56:11.) Judge

Whitney instructed the Government to begin it arguments by addressing the other statutes

which the Government believes provide it with sufficient control over Section 292(b)

actions. (Id. at 23:4 (“Let’s go right [to] Section 517 and 518.”).)2

After briefly addressing 28 U.S.C. §§ 517 and 518, and also remarking that he had

“concern” about the “shallow” notice required by 35 U.S.C. § 290, (id. at 26:12, 28:12-

20), Judge Whitney got to the heart of what he called a “big problem” with Section 292.

(Id. at 26:14.) Judge Whitney expressed concern that, given the lack of safeguards in

Section 292 and the “shallow” notice required by Section 290, a relator and a defendant

could agree to an out-of-court settlement of a false marking action for pennies on the

dollar, and could file a Complaint, Answer, and Stipulation of Dismissal before the

Government had any notice, thereby binding the Government without giving it an

opportunity to intervene. (Id. at 26:14-27:2; see also 35:3-8, 39:3-11, 54:24-55:2).)

Judge Whitney was particularly concerned about the potential for such collusive

settlements because the Government had intervened in CIBA not because of the statutory

notice it received pursuant to 35 U.S.C. § 290, but because of the notice of constitutional

2 The Government has taken the position in all three cases that, although Section 292 lacks any built-in procedural safeguards to ensure that the Executive maintains control of qui tam litigation, “the government has adequate and necessary tools” to participate “by virtue of other applicable statutes and rules.” (See, e.g., Gov’t’s Supp. Br. (Pioneer matter) [#68-3] at 7-8; Gov’t’s Intervention Br. (Pioneer matter) [#54] at 27 n. 11 (citing 35 U.S.C. § 290, 28 U.S.C. §§ 517 & 518, Fed. R. Civ. P. 24, 26 & 41) (emphasis added).) It is undisputed that Section 292 contains no built-in controls.


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challenge issued pursuant to Fed. R. Civ. P. 5.1.3 (CIBA Tr. at 41:9-23.) The court

ultimately asked for supplemental briefing on the issue of “what control does the U.S.

Government have over this case if the relator and the defendant agree up front to this

[settlement] deal and file Complaint, Answer, and Stipulated Dismissal with Prejudice

while they are sending the [§ 290] notice to the [US]PTO?” (Id. at 19-25.)

Pioneer agrees that Judge Whitney’s query highlights a “big problem” with

Section 292, and the Government lacks any meaningful control to avoid such a problem,

as Pioneer showed in its initial brief. (Pioneer’s Mem. Supp. Mot. Dismiss [#38] at 12.)

The Government’s response to this argument has been two-fold: (1) although situations

like this “would raise serious constitutional issues,” it is merely a hypothetical that should

not be addressed given that the Government has not attempted to control the litigation or

substantively intervene; and (2) even if it were not a hypothetical, there are mechanisms

outside of Section 292 that provide the Executive with sufficient control. (Br. of U.S. as

Intervenor Defending the Constitutionality of 35 U.S.C. § 292 [#54] at 6, 26-28 & n.11

(“Gov’t’s Br.”) (emphasis added.) Both of these arguments are flawed.

3 In this case, despite the fact that 35 U.S.C. § 290 required notice to the USPTO by July 17, 2008 (suit was filed on June 17, 2008), there is no indication in the court docket that this notice has ever been sent to the USPTO. In CIBA, the Section 290 notice was sent to the USPTO the day after the Complaint was filed and is listed on PACER as the third docket entry. Even if the Section 290 notice was served in this case, Pioneer believes that the Government did not receive any statutory notice indicating that this action was a Section 292(b) suit until Pioneer served its Rule 5.1 notice on September 2, 2008. If Pioneer is mistaken, it invites the Government to explain by what statutory procedure it became aware of this false marking action.


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A. Morrison Establishes The Propriety of Ruling On the Take Care Clause Issue Presented.

To overcome the Government’s contention that Judge Whitney’s query should not

be addressed until the Government attempts unsuccessfully to intervene, the Court need

look no further than Morrison v. Olsen. 487 U.S. 654 (1988). In Morrison, the Court

considered whether the independent counsel provisions of the Ethics in Government Act

usurped the role of the Executive Branch by granting independent counsel powers such as

the right to initiate civil and criminal proceedings and conduct investigations. Id. at 659-

60, 662. The Court ultimately found the independent counsel provisions constitutional

under the Take Care Clause because several features of the Act enabled the Executive

Branch to supervise and control the independent counsel’s prosecutorial powers, thereby

giving “the Executive Branch sufficient control over the independent counsel to ensure

that the President is able to perform his constitutionally assigned duties.” Id. at 695-96.

The Court concluded that the Act provided “sufficient control” even though the Executive

Branch had not failed, or even attempted, to exercise these controls.

Thus, contrary to the Government’s assertion in this case, this Court is not

constrained by the fact that the Government has not yet attempted to exercise any of the

controls it believes are at its disposal. For the same reasons that the Supreme Court

reached the separation of powers issue in Morrison, it is necessary to reach the issue in

this case.

Moreover, as already briefed, the Government’s position runs counter to the

appellate court decisions that have held that the lack of Government intervention in cases


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brought under other qui tam statutes, such as the FCA, increases, rather than decreases,

the risk of an Article II violation. (Pioneer’s Resp. Gov’t’s Br. [#59] at 32-33.)

Additionally, even though the Government is correct that courts should “first ascertain

whether a construction of the statute is fairly possible by which the [constitutional]

question may be avoided,” this is not such a case, given the lack of sufficient controls

available to the Government to avoid such “big problems” as Judge Whitney’s

hypothetical, as discussed below.

B. The Government Relies on Insufficient “Controls” Outside of Section 292 That Do Not Alleviate the Take Care Clause Problem at Hand.

As previously briefed, unlike the many procedural safeguards built into the False

Claims Act (“FCA”), which allow for automatic control of FCA qui tam actions by the

Government, the provisions relied on by the Government in this case (1) are found

outside of Section 292, (2) are not automatic, but instead require judicial approval, and

(3) do not provide any effective measure of control that would allow the Executive

Branch to fulfill its constitutionally-assigned duties. (Id. at 28-32.)4 Thus, the only

mechanisms that might allow the Government to attempt to “undo” Judge Whitney’s

4 The Government’s latest brief suggests that it “may also be subject to notice and joinder” under Fed. R. Civ. P. 19(a)(1)(B), (Supp. Br. of U.S. as Intervenor Defending the Constitutionality of 35 U.S.C. § 292 [#68-3] at 7) (emphasis added), but it cites no cases suggesting that either notice or joinder would be required. Furthermore, even if Rule 19 applied, if would come into play only if a party or a court took steps to join the Government, given that the Government receives no effective notice of Section 292(b) actions. See infra at 8. The fact that the relator in a Section 292(b) action is a partial assignee of the Government, with the right to litigate the Government’s claim, suggests that neither the court nor a party would have a reason to seek the Government’s joinder or believe it to be necessary.


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hypothetical collusive settlement (or take any control in the present action) all require

pre-approval from the Judicial Branch, thus raising a separate but equally compelling

concern under the Take Care Clause – that of aggrandizing one branch at the expense of

the other. (Pioneer’s Resp. Gov’t’s Br. [#59] at 30; see generally Buckley v. Valeo, 424

U.S. 1, 122 (1976).)

Just as problematic, the “controls” relied upon by the Government (and Judge

Whitney’s hypothetical) assume as their premise that 35 U.S.C. § 290 provides actual

notice to the Government of a Section 292(b) action. It does not. A Section 290

notification is required to be issued by a court clerk in all patent actions brought pursuant

to Title 35 of the United States Code,5 is required to be sent only to the Director of the

USPTO (not the Attorney General or Department of Justice), is not required to be sent

until one month after the action is filed, and, most importantly, does not indicate the type

of patent action at issue. (Pioneer’s Resp. Gov’t’s Br. [#59] at 28 (discussing 35 U.S.C.

§ 290 and attaching ).) For these reasons, and also because not even the Government

contends that it has learned of this or any other Section 292(b) action via a Section 290

notice, a Section 290 notification provides no notice to the Executive Branch that a

Section 292(b) action has been filed. With no notice of Section 292(b) actions, the

5 According to the 2008 Annual Report of the Director of the United States Courts, during the government’s last fiscal year (which ended September 30, 2008), 2,909 patent cases were filed in federal district court, up from 2,896 in fiscal year 2007. See http://www.uscourts.gov/judbus2008/appendices/C02Sep08.pdf. Considering the magnitude of these new filings, it is extremely doubtful that the USPTO investigates the subject and scope of each suit.


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Government would have no reason (barring a constitutional challenge providing notice

under Fed. R. Civ. P. 5.1) to seek to utilize any of the other purported controls upon

which it relies. Accordingly, a relator could settle with a defendant even after the Section

290 notice has been served, and yet the Government would have no actual knowledge of

the qui tam suit unless and until the relator abided by the requirement that he split his

bounty with the Government (assuming he could determine where, and to whom, to send

the check). The failure of Section 290 to provide actual notice to the Executive Branch

of a Section 292(b) action completely undermines the Government’s “control”

arguments.6

As Judge Whitney noted, a “big problem” that results from this lack of notice (and

corresponding lack of control) is that the Government is bound by a relator’s conduct,

including a stipulated judgment. The parties do not dispute that a qui tam relator is the

partial assignee of the Government’s interest. Under the doctrine of claim preclusion, a

non-party can be bound by a judgment if the non-party shares an assignor/assignee

relationship with a party. Taylor v. Sturgell, 128 S. Ct. 2161, 2172 (2008). Additionally,

claim preclusion would apply because the relator adequately represents the government’s

interests. Id. The Government admitted recently in an Amicus Curiae brief to the

Supreme Court that it “can be bound by the judgment in a qui tam action even when it

6 The Government’s latest brief even concedes the ineffectiveness of its purported “controls” in the absence of notice. (Gov’t’s Supp. Br. [68-3] at 7 (“As the government noted in its initial brief and at the March 26, 2009, hearing [in CIBA], where the government has notice of the qui tam action, the government has adequate and necessary tools . . . .” Again, unlike in CIBA, the Government does not appear to have received the requisite notice in this case under Section 290. See supra at n. 3.


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elects not to become a party, but instead allows the relator to litigate on its behalf.” (Br.

of U.S. as Amicus Curiae Supp. Resp’ts at 27, United States ex rel. Eisenstein v. City of

New York, No. 08-660 (filed March 31, 2009) (“Eisenstein brief”) (attached as Exhibit

B).)

Moreover, the Government would have no ability under Fed. R. Civ. P. 60(b) to

set aside a stipulated judgment because Rule 60(b) applies only to a party or its legal

representative, and none of the grounds for setting aside a judgment under Rule 60(b)

would apply. Fed. R. Civ. P. 60(b); see also Ericsson, Inc. v. InterDigital Communs.

Corp., 418 F.3d 1217, 1224 (Fed. Cir. 2005) (collecting cases noting that most federal

courts strictly construe Rule 60(b) and do not allow non-parties to seek relief under the

Rule). Likewise, the Government could not initiate an independent action for relief from

the judgment under Rule 60(d)(1) because that Rule applies only to a party and only in

instances of “gross” injustice. Fed. R. Civ. P. 60(d)(1); United States v. Beggerly, 524

U.S. 38, 46 (1998). And even if Rule 60 were available to the Government, it does not

provide the Executive with any meaningful control over a Section 292(b) action while it

is pending, placing the Government in the untenable position of relying on the Judiciary

to allow it to attempt to undo a final judgment that the Government was both ignorant of

and powerless to prevent.7

7 Pioneer notes that a variation of Judge Whitney’s hypothetical could potentially occur in any of the pending Section 292 qui tam cases at any time. A new relator could file a virtually identical Section 292(b) Complaint along with an Answer and Stipulation of Dismissal against Pioneer, CIBA, and/or Solo Cup in federal district court, while simultaneously agreeing to an out-of-court settlement with the defendant for pennies on the dollar compared to what the relators seek in


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C. The Government Has Admitted Previously That the “Controls” It Now Relies Upon to Avoid this Constitutional Challenge Were Insufficient To Provide Any Level of Control Over FCA Qui Tam Actions.

The Government’s current position regarding the adequacy of the “controls” that

exist outside of Title 35 (i.e. “controls” other than 35 U.S.C. § 290) is inconsistent with

its position in an amicus curiae brief filed last month. (Eisenstein brief at 12, Ex. B.) In

Eisenstein, the Government noted that until Congress amended the FCA in 1943 to

“increase the government’s level of control over FCA litigation,” the government “was

powerless to interfere with [an FCA] prosecution,” except that “the government’s consent

was a prerequisite to dismissal of the suit.” (Id. (emphasis added).) However, the

primary control mechanisms (aside from 35 U.S.C. § 290) relied on by the Government

in this action – 28 U.S.C. §§ 517 and 518 – were enacted in earlier iterations long before

1943.8 Moreover, with the exception of Federal Rule 26(c), the other “tools” that the

Government contends allow it to control a qui tam action – Federal Rules 19, 24(a)(2)

and (b), and 41 – all existed when the Federal Rules of Civil Procedure were codified in

1938, if not long before.9 The Government has not explained how these mechanisms

these cases. Section 290’s belated and ineffective notice would not apprise the Government of these events or allow it time to seek to intervene before dismissal, which would bind the Government (as well as the current relators) under the doctrine of claim preclusion. 8 See Act of June 22, 1870, ch. 150, § 5 (current version at 28 U.S.C. §§ 517 and 518) (providing the Attorney General with the ability to seek to intervene) (attached as Exhibit C). 9 See, e.g., 7 Charles Alan Wright, Arthur R. Miller & Mark Kay Kane, Federal Practice & Procedure § 1601 (3d ed. 2001) (“The source of Rule 19 itself, as pointed out by the [1937] Advisory Committee Note to the original rule, is found in Rules 25, 37, and 39 of the Federal Equity Rules of 1912.”); 7C Federal Practice & Procedure § 1901 (3d ed. 2007) (explaining that Rule 24 intervention was rooted in Roman law and was “increasingly recognized in the last


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could provide adequate control now, in a Section 292(b) qui tam action, when they

provided no power to interfere with an FCA qui tam action prior to the 1943

amendments.

For the foregoing reasons, Judge Whitney’s hypothetical, and the facts of this

case, illustrate the serious constitutional problems with Section 292 under the Take Care

Clause which cannot be overcome by reliance on extra-statutorial controls.10

II. THE COURT SHOULD NOT FOLLOW THE SOLO CUP OPINION.

The day after oral argument in CIBA, and after also having received supplemental

briefing from the parties,11 the Solo Cup court rejected the defendant’s constitutional

challenge. Pequignot v. Solo Cup Co., Civil Action No. 1:07cv897 (LMB/TCB), 2009

WL 874488 (E.D. Va. Mar. 27, 2009) (filed in this matter at Document 65-2.). As

mentioned, the parties in Solo Cup devoted much of their briefing and oral argument to

the issues of Article III standing and whether Section 292(b) is a qui tam statute. Most of

the Solo Cup opinion also is devoted to those issues, which have not been raised here.

125 years”); 9 Federal Practice & Procedure § 2361 (3d ed. 2008) (noting that although Rule 41 has been amended seven times “since it originally was promulgated in 1938,” “[t]he amendments . . . have been substantively insignificant.”). 10 Judge Whitney also sought supplemental briefing on the following issue: “If the Court views a statute as facially unconstitutional, does it have to address that issue first or can it address 12(b)(6) issues?” The Court is obligated to avoid deciding constitutional questions where possible, and therefore should address the constitutional issues in this case only if it rejects Pioneer’s 12(b)(6) arguments. See Jean v. Nelson, 472 U.S. 846, 854 (1985). 11 The parties in Solo Cup were asked to address in supplemental briefing whether the Federal Trade Commission (“FTC”) could enforce 292(b), and the Government and Solo Cup responded that the FTC could not do so (the plaintiff deferred to the Government on this issue).


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In the final two pages of Judge Leonie M. Brinkema’s analysis, she explained her

reasons for rejecting Solo Cup’s Take Care Clause arguments, concluding as follows: (1)

the long history of qui tam statutes is highly persuasive; (2) the Executive Branch can

satisfy its “take care” duties with a “significantly lesser degree of control” than required

in Morrison because “the intrusion of § 292(b) into Executive Branch power is minor in

comparison,” given that civil actions are not at the heart of the Executive’s constitutional

duty to “take care that the laws are faithfully executed;” (3) the availability of control

mechanisms outside of Section 292 allow the Government to adequately assert its

interests; and (4) the lack of objection by the Government to the plaintiff’s handling of

the matter is persuasive evidence that no separation of powers principles have been

violated. (Id. at *10-11.) Pioneer already has addressed these arguments in prior

briefing, but the interrelated second and third arguments demand additional discussion.12

Judge Brinkema’s conclusion that the Take Care Clause can be satisfied in civil

actions with a “significantly lesser degree of control” than required in criminal actions

like Morrison is incorrect. The conclusion is based solely on a statement from Riley v. St.

Luke’s Episcopal Hospital, 252 F.3d 749, 755 (5th Cir. 2001) (en banc), that “civil

actions do not ‘cut[] to the heart of the Executive’s constitutional duty to take care that

12 Because Pioneer addressed at length the inconsistent treatment of qui tam statutes in this nation’s history and how the lack of Government intervention in qui tam cases increases, rather than decreases, the risk of an Article II violation (see Pioneer’s Resp. Gov’t’s Br. [#59] at 10-16, 32-33), those arguments will not be repeated. It is worth noting, however, that Solo Cup, in contrast to Pioneer, did not counter the substance of the Government’s historical argument, but argued only that it was “largely immaterial.” (See Def’s Opp. to Gov’t’s Br. (Solo Cup Matter) [# 90] at 4-5.)


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the laws be faithfully executed.’” Solo Cup, 2009 WL 874488, at *10. However, Riley

cited no authority for this proposition. 252 F.3d at 755. Moreover, Morrison makes no

such distinction, and neither does the text of the Take Care Clause. See Nader v. Saxbe,

497 F.2d 676, 679 n.19 (D.C. Cir. 1974) (“The Executive’s constitutional duty to ‘take

Care that the Laws be faithfully executed,’ Art. II, § 3, applies to all laws, not merely to

criminal statutes.”) Indeed, in a case involving a civil enforcement mechanism, the

Supreme Court made no such distinction, instead characterizing civil enforcement as

falling within the Executive’s “most important constitutional duty . . . [to] take Care that

the Laws be faithfully executed.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 577

(1992).13

Furthermore, Judge Brinkema recognized that some degree of Governmental

control is required by the Take Care Clause. It is undisputed that Section 292 provides

no such control, thus requiring reliance on controls outside of the statute. However, the

Government’s purported safeguards outside of the statute provide it with no meaningful

control, given that none provide an automatic means for intervening, and given that the

Government receives no mandatory notice of Section 292(b) actions (and, therefore,

ordinarily would have no reason to know of a Section 292(b) action or seek to assert its

will until after a binding judgment). See supra § (I)(B). Although the Government’s

intervention brief in Solo Cup raised the issue of extra-statutorial controls over Section

13 Judge Brinkema also noted that the courts are split on the issue of whether Section 292 is civil or criminal in nature, Solo Cup, 2009 WL 874488, at *10 n. 17, adding an additional element of uncertainty to her analysis, given that she nonetheless concluded that Section 292(b) was civil.


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292(b) actions, the defense did not respond to those arguments in its briefing or at oral

argument. Thus, unlike in this case, the Solo Cup court did not have the benefit of any

rebuttal to the Government’s argument that procedural safeguards outside of Section 292

provide it with adequate control. Accordingly, this Court should not follow the Solo Cup

opinion as to the Take Care Clause issues.

CONCLUSION

For the foregoing reasons, Pioneer’s challenge to the constitutionality of 35 U.S.C.

§ 292 should be granted.

This the 28th day of April, 2009.

/s/ Daniel R. Taylor, Jr. Daniel R. Taylor, Jr. (N.C. State Bar # 7358) Steven D. Moore (N.C. State Bar # 23367) Jason M. Wenker (N.C. State Bar #36076) Chad D. Hansen (N.C. State Bar #32713) KILPATRICK STOCKTON LLP 1001 West Fourth Street Winston-Salem, North Carolina 27101-2400 Telephone: (336) 607-7300 Facsimile: (336) 607-7500 Email: [email protected] Email: [email protected] Email: [email protected] Email: [email protected]

Attorneys for Defendant Pioneer Hi-Bred International, Inc.


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CERTIFICATE OF SERVICE

I hereby certify that on April 28, 2009, I electronically filed the foregoing PIONEER HI-BRED INTERNATIONAL, INC.’S SUPPLEMENTAL BRIEF IN SUPPORT OF ITS MOTION TO DISMISS CHALLENGING THE CONSTITUTIONALITY OF 35 U.S.C. § 292 with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following register user: JAMES M. HARRINGTON [email protected] GLEN A. CIPRIANI [email protected] Attorneys for Plaintiff The North Carolina Farmers’ Assistance Fund, Inc

MARGUERITE S. WILLIS [email protected] NIKOLE SETZLER MERGO [email protected] Attorneys for Defendant Monsanto, et al.

DAVID B. JINKINS [email protected] DEAN L. FRANKLIN [email protected], PETER J.JURAN [email protected] Attorneys for Crop Production Services, Inc.

JONATHAN A. BERKELHAMMER [email protected] DANIEL J. THOMASCH [email protected] ROBERT M. ISACKSON rmisackson@orrick JOSEPH A. SHERINSKY [email protected] Attorneys for Dow Agrosciences, LLC

GILL P. BECK [email protected] GORDON A. JONES [email protected] Attorneys for the United States

and I hereby certify that I have also mailed the foregoing document to the following

recipients: N/A

Respectfully submitted, /s/ Jason M. Wenker Jason M. Wenker (N.C. State Bar #36076) KILPATRICK STOCKTON LLP 1001 West Fourth Street Winston-Salem, North Carolina 27101-2400 Telephone: (336) 607-7300 Facsimile: (336) 607-7500 Email: [email protected]


EXHIBIT A

Case 1:08-cv-00409-TDS-PTS Document 70-2 Filed 04/28/2009 Page 1 of 81

EXHIBIT B


EXHIBIT C


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