Case 1:17-cv GMS Document 35 Filed 08/21/17 Page 1 of 19 PageID #: 195 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

Transcription

1 Case 1:17-cv GMS Document 35 Filed 08/21/17 Page 1 of 19 PageID #: 195 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE K2M, INC., v. Plaintiff, ORTHOPEDIATRICS CORP. and ORTHOPEDIATRICS US DISTRIBUTION CORP., Defendants. C.A. No (GMS DEMAND FOR JURY TRIAL FIRST AMENDED COMPLAINT K2M, Inc. (hereinafter referred to as K2M, by and through undersigned counsel, hereby brings this Complaint against Defendants OrthoPediatrics Corp. and OrthoPediatrics US Distribution Corp. (collectively referred to as OrthoPediatrics or Defendants and alleges as follows: NATURE OF THE CASE 1. This is a civil action for patent infringement based on Defendants continued and willful infringement of United States Patent Nos. 9,532,816 ( the 816 patent and 9,655,664 ( the 664 patent, each entitled Rod Reduction Device and Method of Use ; unfair competition in violation of Section 43(a of the Lanham Act, 15 U.S.C. 1125(a; and trademark cancellation pursuant to Section 14 of the Lanham Act, 15 U.S.C THE PARTIES 2. K2M is a corporation organized and existing under the laws of the State of Virginia, having a principal place of business at 600 Hope Parkway SE, Leesburg, VA

2 Case 1:17-cv GMS Document 35 Filed 08/21/17 Page 2 of 19 PageID #: Upon information and belief, Defendant OrthoPediatrics Corp. is a corporation organized and existing under the laws of the State of Delaware, having a principal place of business located at 2850 Frontier Drive, Warsaw, IN Upon information and belief, Defendant OrthoPediatrics US Distribution Corp. is a wholly-owned subsidiary of OrthoPediatrics Corp. and is a corporation organized and existing under the laws of the State of Delaware, having a principal place of business located at 2850 Frontier Drive, Warsaw, IN JURISDICTION AND VENUE 5. This action for infringement arises under the patent and trademark laws of the United States, including 35 U.S.C. 271, 281 and , et seq. and 15 U.S.C et seq. 6. This Court has jurisdiction over the subject matter of this action on at least the following grounds: a. 28 U.S.C. 1331, this being a civil action arising under the laws of the United States; and b. 28 U.S.C. 1338(a, this being a civil action arising under an Act of Congress relating to patent and trademark rights. 7. This Court has personal jurisdiction over Defendants because they are incorporated in Delaware, and because, inter alia, upon information and belief, Defendants have conducted, and at the time of the filing of this Complaint are conducting, business in Delaware and otherwise have committed acts in Delaware that are the subjects of and/or related to the claims set forth herein. 2

3 Case 1:17-cv GMS Document 35 Filed 08/21/17 Page 3 of 19 PageID #: and 1400(b. 8. Venue is proper in this Court under, inter alia, the provisions of 28 U.S.C. BACKGROUND 9. K2M was founded in 2004 in Leesburg, Virginia, by industry veterans Eric Major and John P. Kostuik, MD, a former chief of spine surgery at Johns Hopkins School of Medicine and a founding member of the North American Spine Society. 10. From its inception, K2M set out to design, develop and commercialize products for use by spine surgeons in surgery to treat the most complex spinal pathologies, including spinal deformities. Such complex spine surgeries involve derotating and fixing the spine in a straightened position with screws placed into vertebral bodies secured to rods extending along the spine. The task of correcting the position of the spine, seating the rods into the screws and locking the screws to the rods is quite difficult. 11. As part of K2M s effort to improve on the products available to spine surgeons and the surgical techniques for treating scoliosis, K2M developed a unique rod reducer, marketed under the name Cricket, and a technique of use that helps surgeons perform complex spine surgeries. For the first time, surgeons attached a Cricket rod reducer to each pedicle screw so that the surgeon could adjust each Cricket rod reducer independently of the others and gradually approximate the rod to the series of screws. This was a novel approach made possible by the Cricket device. Accordingly, K2M has developed substantial goodwill in its proprietary Cricket designation. 12. K2M is a global innovation leader in spinal technologies, reflected by over 350 issued and pending patents worldwide, including over 170 patents issued by the United States Patent and Trademark Office ( USPTO. 3

4 Case 1:17-cv GMS Document 35 Filed 08/21/17 Page 4 of 19 PageID #: On June 30, 2015, K2M filed U.S. Patent Application No. 14/609,868 ( the 868 application, entitled Rod Reduction Device and Method of Use. The 868 application claims priority to U.S. Patent Application No. 11/777,730, filed on Jul. 13, 2007, now U.S. Patent No. 8,961,523, and lists Michael Barrus and Scott A. Jones as inventors. 14. On October 31, 2016, the USPTO issued a Notice of Allowance with respect to the 868 application, indicating that all of the Examiner s rejections were overcome. On November 28, 2016, the USPTO received the issue fee for the 868 application. On December 14, 2016, the USPTO issued a notification that the 868 application would issue as U.S. Patent No. 9,532, On January 3, 2017, the 816 patent was duly and legally issued by the USPTO. A true and correct copy of the 816 patent is attached hereto as Exhibit A and made a part hereof. 16. K2M is the owner, by assignment, of all right, title, and interest in the 816 patent, including the right to bring damages for past infringement. Accordingly, K2M has the right to bring and maintain the present action with respect to the 816 patent. 17. On December 29, 2016, K2M filed U.S. Patent Application No. 15/394,025 ( the 025 application, entitled Rod Reduction Device and Method of Use. The 025 application claims priority to U.S. Patent Application Nos. 14/609,868 and 11/777,730, filed on Jan. 30, 2015 and Jul. 13, 2007, respectively, now U.S. Patent Nos. 9,532,816 and 8,961,523, respectively, and lists Michael Barrus and Scott A. Jones as inventors. 18. On February 17, 2017, the USPTO issued a Notice of Allowance with respect to the 025 application, indicating that no references, or reasonable combination thereof, could be found which disclosed or suggested the features recited in the claims. On April 17, 4

5 Case 1:17-cv GMS Document 35 Filed 08/21/17 Page 5 of 19 PageID #: , the USPTO received the issue fee for the 025 application. On May 3, 2017, the USPTO issued a notification that the 025 application would issue as U.S. Patent No. 9,655, On May 23, 2017, the 664 patent was duly and legally issued by the USPTO. A true and correct copy of the 664 patent is attached hereto as Exhibit B and made a part hereof. 20. K2M is the owner, by assignment, of all right, title, and interest in the 664 patent, including the right to bring damages for past infringement. Accordingly, K2M has the right to bring and maintain the present action with respect to the 664 patent. 21. K2M is the owner of all right, title, and interest to the CRICKET trademark for use in connection with surgical instruments used in spinal applications. A federal registration of the CRICKET trademark was duly issued on May 29, 2012, U.S. Trademark Registration No. 4,149,875 ( the 875 Registration, and the 875 Registration remains valid and subsisting. 22. On information and belief, OrthoPediatrics was founded in On information and belief, OrthoPediatrics introduced its RESPONSE spine system in 2015, which is marketed as treating spinal deformity. 24. On information and belief, the RESPONSE spine system includes the JIMINY rod reducer instrument, and is promoted as allowing simple rod reduction by virtue of the JIMINY rod reducer instrument. 25. On information and belief, OrthoPediatrics filed for federal registration of the JIMINY mark on July 11, 2014, with knowledge of K2M s senior CRICKET trademark and of the related connotations of the terms JIMINY and CRICKET. A federal registration of the 5

6 Case 1:17-cv GMS Document 35 Filed 08/21/17 Page 6 of 19 PageID #: 200 JIMINY trademark issued on October 6, 2015, U.S. Trademark Registration No. 4,828,245 ( the 245 Registration, but that registration is not incontestable and thus is vulnerable to challenge. COUNT I INFRINGEMENT OF U.S. PATENT NO. 9,532, K2M re-alleges and incorporates by reference the allegations contained in numbered Paragraphs 1-25 as if fully set forth herein. 27. Upon information and belief, Defendants are in the business of making, using, commercializing, and/or importing rod reducing devices as described in the 816 patent. 28. In particular, upon information and belief, Defendants manufacture, use, import, and commercialize products covered by one or more claims of the 816 patent, including without limitation, rod reducing systems and kits marketed as the RESPONSE Spine System comprising rod reducing devices marketed as the JIMINY rod reducer instrument and/or identified by Defendants with the following model number: (collectively, the 816 Infringing Products. provides as follows: 29. For example, Defendants infringe claim 16 of the 816 patent, which 16. A rod reducing device comprising: a housing defining a longitudinal axis, the housing including first and second grasping members configured to grasp a portion of a bone anchor therebetween, the first and second grasping members defining a plane; a rotatable member extending through the housing along the longitudinal axis; and a rod contact member positioned at a distal end of the rotatable member, the rod contact member translatable along the longitudinal axis in response to rotation of the rotatable member about the longitudinal axis, wherein the rod contact member and the rotatable member are translatable within the plane defined by the first and second grasping members. 6

7 Case 1:17-cv GMS Document 35 Filed 08/21/17 Page 7 of 19 PageID #: Upon information and belief, the JIMINY rod reducer instrument includes a housing defining a longitudinal axis, the housing including first and second grasping members configured to grasp a portion of a bone anchor therebetween, the first and second grasping members defining a plane. 31. Upon information and belief, the JIMINY rod reducer instrument includes a rotatable member extending through the housing along the longitudinal axis. 32. Upon information and belief, the JIMINY rod reducer instrument includes a rod contact member positioned at a distal end of the rotatable member, the rod contact member translatable along the longitudinal axis in response to rotation of the rotatable member about the longitudinal axis. 7

8 Case 1:17-cv GMS Document 35 Filed 08/21/17 Page 8 of 19 PageID #: Upon information and belief, the JIMINY rod reducer instrument includes the rod contact member and the rotatable member being translatable within the plane defined by the first and second grasping members. 34. Accordingly, upon information and belief, Defendants are infringing and will continue to infringe, directly and/or indirectly, one or more claims of the 816 patent, either literally or under the doctrine of equivalents, by making, importing, and/or commercializing in the United States products falling within the scope of one or more claims of the 816 patent, including without limitation the 816 Infringing Products, during the legal term of the 816 patent. 35. Upon information and belief, third parties, including Defendants customers, have infringed, and continue to infringe, one or more claims of the 816 patent under 35 U.S.C. 271(a, either literally and/or under the doctrine of equivalents, by using rod reducing systems and kits supplied by Defendants, including but not limited to rod reducing systems and kits marketed as the RESPONSE Spine System comprising rod reducing devices marketed as the JIMINY rod reducer instrument. 36. Defendants have had knowledge of and notice of the 816 patent and its infringement since the filing of this amended complaint. 8

9 Case 1:17-cv GMS Document 35 Filed 08/21/17 Page 9 of 19 PageID #: Upon information and belief, Defendants have induced infringement, and continue to induce infringement, of one or more claims of the 816 patent under 35 U.S.C. 271(b. Defendants actively, knowingly, and intentionally induced, and continue to actively, knowingly, and intentionally induce, infringement of the 816 patent by selling or otherwise supplying rod reducing systems and kits marketed as the RESPONSE Spine System comprising rod reducing devices marketed as the JIMINY rod reducer instrument; with the knowledge and specific intent that third parties will use, sell, offer for sale, and/or import the rod reducing systems and kits supplied by Defendants to infringe the 816 patent; and with the knowledge and specific intent to encourage and facilitate the infringement through the dissemination of the rod reducing systems and kits and or the creation and dissemination of promotional and marketing materials, supporting materials, instructions, product manuals, and/or technical information related to such rod reducing systems and kits. 38. K2M is being irreparably injured by Defendants infringement of the 816 Patent and will continue to suffer irreparable injury as long as Defendants infringement continues. Upon information and belief, Defendants infringing activities will continue unless enjoined by this Court pursuant to 35 U.S.C K2M is suffering and will continue to suffer monetary damages from Defendants unauthorized infringement that are compensable under 35 U.S.C. 284 in an amount to be determined at trial. COUNT II INFRINGEMENT OF U.S. PATENT NO. 9,655, K2M re-alleges and incorporates by reference the allegations contained in numbered Paragraphs 1-39 as if fully set forth herein. 9

10 Case 1:17-cv GMS Document 35 Filed 08/21/17 Page 10 of 19 PageID #: Upon information and belief, Defendants are in the business of making, using, commercializing, and/or importing rod reducing systems and kits as described in the 664 patent. 42. In particular, upon information and belief, Defendants manufacture, use, import, and commercialize products covered by one or more claims of the 664 patent, including without limitation, rod reducing systems and kits marketed as the RESPONSE Spine System comprising rod reducing devices marketed as the JIMINY rod reducer instrument and/or identified by Defendants with the following model number: (collectively, the 664 Infringing Products. provides as follows: 43. For example, Defendants infringe claim 1 of the 664 patent, which 1. A method of advancing a rod into a housing of a bone anchor comprising: coupling a rod reducing device to a bone anchor, the bone anchor having a rod-receiving housing and a bone engaging shaft extending therefrom, the rod reducing device including: a rotatable member, a rod contact member positioned at a distal end of the rotatable member, and a body including first and second elongated grasping members extending therefrom, each of the first and second elongated grasping members having a screw grasping element, the rotatable member threadably coupled with the body, the first and second elongated grasping members defining a plane, the rotatable member and the rod contact member movable within the plane; securing the rod reducing device to the bone anchor by engaging the first and second elongated grasping members with the rod-receiving housing so that the rod-receiving housing is disposed between the first and second elongated grasping members; and 10

11 Case 1:17-cv GMS Document 35 Filed 08/21/17 Page 11 of 19 PageID #: 205 rotating the rotatable member thereby causing the rod contact member to move relative to the body within the plane to advance a rod disposed between the first and second elongated grasping members toward the rod-receiving housing. 44. Upon information and belief, the JIMINY rod reducer instrument includes a rotatable member; a rod contact member positioned at a distal end of the rotatable member; and a body including first and second elongated grasping members extending therefrom, each of the first and second elongated grasping members having a screw grasping element, the rotatable member threadably coupled with the body, the first and second elongated grasping members defining a plane, the rotatable member and the rod contact member movable within the plane. See 26-33, supra. 45. Promotional and marketing materials, supporting materials, instructions, product manuals, and/or technical information related to the RESPONSE Spine System describe coupling the JIMINY rod reducer instrument to a bone anchor, the bone anchor having a rod-receiving housing and a bone engaging shaft extending therefrom. 46. Promotional and marketing materials, supporting materials, instructions, product manuals, and/or technical information related to the RESPONSE Spine System describe securing the JIMINY rod reducer instrument to the bone anchor by engaging the first and second elongated grasping members with the rod-receiving housing so that the rod-receiving housing is disposed between the first and second elongated grasping members. 47. Promotional and marketing materials, supporting materials, instructions, product manuals, and/or technical information related to the RESPONSE Spine System describe rotating the rotatable member thereby causing the rod contact member to move relative to the body within the plane to advance a rod disposed between the first and second elongated grasping members toward the rod-receiving housing. 11

12 Case 1:17-cv GMS Document 35 Filed 08/21/17 Page 12 of 19 PageID #: Upon information and belief, third parties, including Defendants customers, have infringed, and continue to infringe, one or more claims of the 664 patent under 35 U.S.C. 271(a, either literally and/or under the doctrine of equivalents, by using rod reducing systems and kits supplied by Defendants, including but not limited to rod reducing systems and kits marketed as the RESPONSE Spine System comprising rod reducing devices marketed as the JIMINY rod reducer instrument. 49. Defendants have had knowledge of and notice of the 664 patent and its infringement since the filing of this amended complaint. 50. Upon information and belief, Defendants have induced infringement, and continue to induce infringement, of one or more claims of the 664 patent under 35 U.S.C. 271(b. Defendants actively, knowingly, and intentionally induced, and continue to actively, knowingly, and intentionally induce, infringement of the 664 patent by selling or otherwise supplying rod reducing systems and kits marketed as the RESPONSE Spine System comprising rod reducing devices marketed as the JIMINY rod reducer instrument; with the knowledge and specific intent that third parties will use, sell, offer for sale, and/or import the rod reducing systems and kits supplied by Defendants to infringe the 664 patent; and with the knowledge and specific intent to encourage and facilitate the infringement through the dissemination of the rod reducing systems and kits and or the creation and dissemination of promotional and marketing materials, supporting materials, instructions, product manuals, and/or technical information related to such rod reducing systems and kits. 51. Upon information and belief, Defendants have contributed to the infringement by third parties, including Defendants customers, and continue to contribute to infringement by third parties, of one or more claims of the 664 patent under 35 U.S.C. 271(c, 12

13 Case 1:17-cv GMS Document 35 Filed 08/21/17 Page 13 of 19 PageID #: 207 by selling and/or offering for sale in the United States, and or importing into the United States rod reducing systems and kits marketed as the RESPONSE Spine System comprising rod reducing devices marketed as the JIMINY rod reducer instrument, knowing that those products constitute a material part of the inventions of the 664 patent, knowing that those products are especially made or adapted to infringe the 664 patent, and knowing that those products are not staple articles of commerce suitable for substantial non-infringing use. 52. Accordingly, upon information and belief, Defendants are infringing and will continue to infringe, directly and/or indirectly, one or more claims of the 644 patent, either literally or under the doctrine of equivalents, by making, importing, and/or commercializing in the United States products falling within the scope of one or more claims of the 644 patent, including without limitation the 644 Infringing Products, during the legal term of the 644 patent. 53. K2M is being irreparably injured by Defendants infringement of the 644 Patent and will continue to suffer irreparable injury as long as Defendants infringement continues. Upon information and belief, Defendants infringing activities will continue unless enjoined by this Court pursuant to 35 U.S.C K2M is suffering and will continue to suffer monetary damages from Defendants unauthorized infringement that are compensable under 35 U.S.C. 284 in an amount to be determined at trial. COUNT III FALSE DESIGNATION OF ORIGIN AND UNFAIR COMPETITION UNDER SECTION 43(a OF THE LANHAM ACT (15 U.S.C. 1125(a 54. K2M re-alleges and incorporates by reference the allegations contained in numbered Paragraphs 1-53 as if fully set forth herein. 13

14 Case 1:17-cv GMS Document 35 Filed 08/21/17 Page 14 of 19 PageID #: Upon information and belief, Defendants marketing, promoting, and selling in this country rod reducing devices under the JIMINY trademark. 56. Upon information and belief, the JIMINY mark was purposefully and maliciously adopted by Defendants because of the public s strong familiarity with the phrase JIMINY CRICKET and the strongly related connotations of JIMINY and CRICKET which are derived from the public s common and frequent use of the phrase JIMINY CRICKET. 57. The acts of Defendants, including the advertisement, promotion and sales of the JIMINY rod reducer instrument, constitute a false designation of origin and a false or misleading description or representation of its products and are otherwise violative of Section 43(a of the Lanham Act. For example, Defendants use of the JIMINY mark tends to falsely connote, inter alia, that the JIMINY and CRICKET products are from or sponsored by a single commercial enterprise, or that the JIMINY or the CRICKET product is an extension or modified version of the other product. Such acts and the consequences thereof harm, and unless enjoined, are likely to continue to harm, the valuable goodwill and reputation which K2M lawfully enjoys via its CRICKET brand and products. 58. Upon information and belief, Defendants actions are willful, deliberate and done with knowledge of K2M s exclusive proprietary rights in the CRICKET mark and with knowledge that these actions are likely to confuse, mislead and deceive the public. COUNT IV CANCELLATION OF DEFENDANTS REGISTERED MARK UNDER SECTION 14 OF THE LANHAM ACT (15 U.S.C K2M re-alleges and incorporates by reference the allegations contained in numbered Paragraphs 1-58 as if fully set forth herein. 14

15 Case 1:17-cv GMS Document 35 Filed 08/21/17 Page 15 of 19 PageID #: Defendants JIMINY mark is not lawfully entitled to federal registration inasmuch as the use of JIMINY in conjunction with the goods listed in the 245 Registration is likely to cause the public to believe mistakenly that the JIMINY products come from K2M, are sponsored or approved by K2M, and/or are an extension or modified version of K2M s CRICKET products. 61. Accordingly, the registration of Defendants JIMINY mark is and will continue to damage K2M. As such, the 245 Registration is subject to cancellation pursuant to 15 U.S.C. 1064, and K2M requests that this Court order the cancellation of the 245 Registration pursuant to 15 U.S.C COUNT V COMMON LAW UNFAIR COMPETITION 62. K2M re-alleges and incorporates by reference the allegations contained in numbered Paragraphs 1-61 as if fully set forth herein. 63. Defendants have engaged in unfair competition with K2M in violation of the common law of Delaware and other states, by advertising, promoting, offering and selling their products under the JIMINY trademark and causing the mistaken belief that their JIMINY products are somehow commercially affiliated with K2M s CRICKET products. determined at trial. 64. The aforesaid Defendants have damaged K2M in an amount to be 65. The aforesaid acts of Defendants have also caused K2M irreparable injury and, unless enjoined by this Court, will continue to cause irreparable damage, loss and injury to K2M, for which K2M has no adequate remedy at law. 15

16 Case 1:17-cv GMS Document 35 Filed 08/21/17 Page 16 of 19 PageID #: 210 COUNT VI VIOLATION OF DELAWARE DECEPTIVE TRADE PRACTICES ACT (6 Del. C et seq. 66. K2M re-alleges and incorporates by reference the allegations contained in numbered Paragraphs 1-65 as if fully set forth herein. practices by: 67. Defendants activities as described above constitute deceptive trade (a Causing a likelihood of confusion or misunderstanding as to the source, sponsorship, approval, or association with or certification of goods or services in violation of 6 Del. C. 2531(a(2; and (b Causing a likelihood of confusion or misunderstanding as to affiliation, connection or association with, or certification by, another in violation of 6 Del. C. 2531(a( K2M has no adequate remedy at law, and if Defendants activities are not enjoined, will continue to suffer irreparable harm and injury to K2M s goodwill and reputation. PRAYER WHEREFORE, K2M respectfully requests that the Court find in its favor and against Defendants and the Court enter judgment or an order granting K2M the following relief: a. That one or more claims of United States Patent Nos. 9,532,816 and 9,655,664 are infringed, directly and/or indirectly, either literally and/or under the doctrine of equivalents; b. Awarding K2M such monetary remedies in an amount sufficient to compensate K2M for damages it has sustained as a consequence of 16

17 Case 1:17-cv GMS Document 35 Filed 08/21/17 Page 17 of 19 PageID #: 211 Defendants infringing activities complained of herein, as well as the profits of Defendant attributable to such infringement; c. That K2M be granted pre-judgment and post-judgment interest at the maximum rate allowable by law on the damages caused by reason of Defendants infringing activities complained of herein; d. That K2M be awarded its costs and reasonable attorney s fees and expenses; e. That Defendants be permanently enjoined from any conduct or activity that infringes United States Patent Nos. 9,532,816 or 9,655,664; f. That Defendants have engaged in unfair competition under Section 43(a of the Lanham Act (15 U.S.C. 1125(a; g. That Defendants be permanently enjoined and restrained from using or employing, directly or indirectly, in any manner the term JIMINY or any variant or derivative thereof, as, or as a component of any trademark, service mark, or trade name for surgical or medical apparatuses and instruments, including but not limited to use in spinal surgery; h. An order that Defendants federal registration for the JIMINY mark, U.S. Trademark Registration No. 4,828,245, be cancelled pursuant to Section 14 of the Lanham Act (15 U.S.C and certified by the Court to the Director of the U.S. Patent and Trademark Office ( USPTO for appropriate entry upon the records of the USPTO pursuant to 15 U.S.C. 1119; and 17

18 Case 1:17-cv GMS Document 35 Filed 08/21/17 Page 18 of 19 PageID #: 212 i. That K2M be granted such other and further relief, both legal and equitable, as the Court may deem is just and proper under the circumstances. MORRIS, NICHOLS, ARSHT & TUNNELL LLP /s/ Rodger D. Smith II OF COUNSEL: Michael Connor Brian Hill ALSTON & BIRD LLP The Atlantic Building 950 F Street, NW Washington, DC ( Jack B. Blumenfeld (#1014 Rodger D. Smith II (#3778 Stephen J. Kraftschik (# North Market Street P.O. Box 1347 Wilmington, DE ( jblumenfeld@mnat.com rsmith@mnat.com skraftschik@mnat.com Attorneys for Plaintiff August 21,

19 Case 1:17-cv GMS Document 35 Filed 08/21/17 Page 19 of 19 PageID #: 213 CERTIFICATE OF SERVICE I hereby certify that on August 21, 2017, I caused the foregoing to be electronically filed with the Clerk of the Court using CM/ECF, which will send notification of such filing to all registered participants. I further certify that I caused copies of the foregoing document to be served on August 21, 2017, upon the following in the manner indicated: James D. Taylor, Jr., Esquire Allison J. McCowan, Esquire SAUL EWING LLP 1201 North Market Street, Suite 2300 Wilmington, DE Attorneys for Defendants John F. Bennett, Esquire Paul M. Ulrich, Esquire Ulmer & Berne LLP 600 Vine Street, Suite 2800 Cincinnati, OH Attorneys for Defendants VIA ELECTRONIC MAIL VIA ELECTRONIC MAIL /s/ Rodger D. Smith II Rodger D. Smith II (#3778