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

Transcription

1 Case 1:08-cv TDS-PTS Document 70 Filed 04/28/2009 Page 1 of 15 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA THE NORTH CAROLINA FARMERS ASSISTANCE FUND, INC., Plaintiff, v. Civil Action No. 1:08-cv-409-TDS-PTS MONSANTO COMPANY, et al., Defendants. 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 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 (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

2 Case 1:08-cv TDS-PTS Document 70 Filed 04/28/2009 Page 2 of 15 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. 2

3 Case 1:08-cv TDS-PTS Document 70 Filed 04/28/2009 Page 3 of 15 (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. 3

4 Case 1:08-cv TDS-PTS Document 70 Filed 04/28/2009 Page 4 of 15 challenge issued pursuant to Fed. R. Civ. P (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 ) 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, & 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, If Pioneer is mistaken, it invites the Government to explain by what statutory procedure it became aware of this false marking action. 4

5 Case 1:08-cv TDS-PTS Document 70 Filed 04/28/2009 Page 5 of 15 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 , 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 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 5

6 Case 1:08-cv TDS-PTS Document 70 Filed 04/28/2009 Page 6 of 15 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 ) 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 ) 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. 6

7 Case 1:08-cv TDS-PTS Document 70 Filed 04/28/2009 Page 7 of 15 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 See Considering the magnitude of these new filings, it is extremely doubtful that the USPTO investigates the subject and scope of each suit. 7

8 Case 1:08-cv TDS-PTS Document 70 Filed 04/28/2009 Page 8 of 15 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. 8

9 Case 1:08-cv TDS-PTS Document 70 Filed 04/28/2009 Page 9 of 15 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 (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 9

10 Case 1:08-cv TDS-PTS Document 70 Filed 04/28/2009 Page 10 of 15 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 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 ); 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 10

11 Case 1:08-cv TDS-PTS Document 70 Filed 04/28/2009 Page 11 of 15 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 (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). 11

12 Case 1:08-cv TDS-PTS Document 70 Filed 04/28/2009 Page 12 of 15 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.) 12

13 Case 1:08-cv TDS-PTS Document 70 Filed 04/28/2009 Page 13 of 15 the laws be faithfully executed. Solo Cup, 2009 WL , 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 , at *10 n. 17, adding an additional element of uncertainty to her analysis, given that she nonetheless concluded that Section 292(b) was civil. 13

14 Case 1:08-cv TDS-PTS Document 70 Filed 04/28/2009 Page 14 of (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, /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 Telephone: (336) Facsimile: (336) DanTaylor@KilpatrickStockton.com Stmoore@KilpatrickStockton.com JWenker@KilpatrickStockton.com CHansen@KilpatrickStockton.com Attorneys for Defendant Pioneer Hi-Bred International, Inc. 14

15 Case 1:08-cv TDS-PTS Document 70 Filed 04/28/2009 Page 15 of 15 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 jharrington@hprac.com GLEN A. CIPRIANI acipriani@hprac.com Attorneys for Plaintiff The North Carolina Farmers Assistance Fund, Inc DAVID B. JINKINS djinkins@thompsoncoburn.com DEAN L. FRANKLIN dfranklin@thompsoncoburn.com, PETER J.JURAN pjj@blancolaw.com Attorneys for Crop Production Services, Inc. MARGUERITE S. WILLIS mwillis@nexsenpruet.com NIKOLE SETZLER MERGO nmergo@nexsenpruet.com Attorneys for Defendant Monsanto, et al. JONATHAN A. BERKELHAMMER jon.berkelhammer@smithmoorelaw.com DANIEL J. THOMASCH dthomasch@orrick.com ROBERT M. ISACKSON rmisackson@orrick JOSEPH A. SHERINSKY jsherinsky@orrick.com Attorneys for Dow Agrosciences, LLC GILL P. BECK Gill.Beck@usdoj.gov GORDON A. JONES gordon.jones@usdoj.gov 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 Telephone: (336) Facsimile: (336) JWenker@KilpatrickStockton.com 15

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97 EXHIBIT B Case 1:08-cv TDS-PTS Document 70-3 Filed 04/28/2009 Page 1 of 40

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137 EXHIBIT C Case 1:08-cv TDS-PTS Document 70-4 Filed 04/28/2009 Page 1 of 5

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