amended bcyp complaint vs. living social
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_____________________________________________________________________________PLAINTIFF BLUE CALYPSOS AMENDED COMPLAINT FOR PATENT INFRINGEMENT
AND JURY DEMAND Page 1 of 12
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
BLUE CALYPSO, INC.,
Plaintiff,
v.
LIVINGSOCIAL, INC.,
Defendant.
Civil Action No. 2:12-cv-518-JRG
JURY TRIAL DEMANDED
AMENDED COMPLAINT FOR PATENT INFRINGEMENT
For its Complaint against Defendant LivingSocial, Inc. (LivingSocial or Defendant),
Plaintiff Blue Calypso, Inc. (Blue Calypso or Plaintiff) alleges the following:
NATURE OF THE ACTION
1. This is a civil action for patent infringement arising under the Patent Laws of theUnited States, 35 U.S.C. 1, et seq.
THE PARTIES
2. Plaintiff Blue Calypso, Inc. is a Delaware corporation with its principal place ofbusiness at 19111 North Dallas Parkway, Suite 200, Dallas, Texas 75287, in the Eastern District
of Texas.
3. Defendant LivingSocial, Inc. is a Delaware corporation with its principal place ofbusiness at 1445 New York Avenue NW, Suite 200, Washington, DC 20005.
4. LivingSocials registered agent for service of process is Corporation ServiceCompany D/B/A CSC-Lawyers Incorporating Service Company, 1021 Main Street, Suite 1150,
Houston, Texas 77002-6508
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_____________________________________________________________________________PLAINTIFF BLUE CALYPSOS AMENDED COMPLAINT FOR PATENT INFRINGEMENT
AND JURY DEMAND Page 2 of 12
JURISDICTION AND VENUE
5.
This is an action for patent infringement arising under the Patent Laws of the
United States, Title 35 of the United States Code.
6. This Court has subject matter jurisdiction under 28 U.S.C. 1331 and 1338(a).7. Defendant is subject to this Courts personal jurisdiction pursuant to due process
and/or the Texas Long Arm Statute, due to Defendants substantial business conducted within
the State of Texas and within this judicial district, including acts constituting direct and/or
indirect infringement as alleged herein occurring within the State of Texas and within this
judicial district.
8. Venue is proper in this judicial district under 28 U.S.C. 1391(b) and (c) and1400(b).
9. This case is related to and involves common patents as in the following prioractions in the United States District Court for the Eastern District of Texas, Tyler Division:Blue
Calypso, Inc. v. Groupon, Inc., Civil Action No. 6:13-cv-372;Blue Calypso, Inc. v. Foursquare
Labs, Inc., Civil Action No. 6:13-cv-373;Blue Calypso, Inc. v. Yelp, Inc., Civil Action No. 6:13-
cv-374;Blue Calypso, Inc. v. Izea, Inc., Civil Action No. 6:13-cv-375;Blue Calypso, Inc. v.
Mylikes Inc., Civil Action No. 6:13-cv-375.
COUNT I INFRINGEMENT OF U.S. PATENT NO. 7,664,516
10. The allegations set forth in the foregoing paragraphs 1 through 9 are incorporatedinto this First Count.
11. On February 16, 2010, United States Patent No. 7,664,516 (the 516 Patent),entitled Method and System for Peer-to-Peer Advertising Between Mobile Communication
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_____________________________________________________________________________PLAINTIFF BLUE CALYPSOS AMENDED COMPLAINT FOR PATENT INFRINGEMENT
AND JURY DEMAND Page 3 of 12
Devices, was duly and legally issued by the United States Patent and Trademark Office. A true
and correct copy of the 516 Patent is attached as Exhibit A to this Complaint.
12. Blue Calypso is the assignee and owner of the right, title and interest in and to the516 Patent, including the right to assert all causes of action arising under said patent and the
right to any remedies for the infringement of it.
13. Blue Calypso has marked all or substantially all of its products covered by the 516Patent in accordance with 35 U.S.C. 287(a). LivingSocial has received constructive notice of
the 516 Patent prior to the filing of this lawsuit and of the 516 Patent, and at least as early as its
issuance, in accordance with 35 U.S.C. 287(a).
14. LivingSocial has and continues to infringe the 516 Patent by operating acomputer-based program as shown in Exhibits F and G, which depict screenshots of
LivingSocials computer-based program. LivingSocials computer-based program includes
functionality for enrolling both consumers and advertisers and for offering deals to consumers, as
depicted in Exhibit F, based on identification of at least a geographic match between the
consumers profile information and the advertisers deal. After offering the deal to the consumer
based on such a geographic match, LivingSocial provides additional functionality for
encouraging the consumer to refer the deal to other consumers. In particular, LivingSocial
provides content to the referring consumer to carry out such a referral as depicted in Exhibit G.
15. In violation of 35 U.S.C. 271, LivingSocial has infringed and continues toinfringe one or more claims of the 516 Patent, literally and/or under the doctrine of equivalents,
directly and/or indirectly.
16. LivingSocial induces infringement of the 516 Patent by, for example, encouraginguse of its computer-based program by consumers and advertisers through the use of discounts
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_____________________________________________________________________________PLAINTIFF BLUE CALYPSOS AMENDED COMPLAINT FOR PATENT INFRINGEMENT
AND JURY DEMAND Page 4 of 12
and incentives. LivingSocial contibutorily infringes the 516 Patent by, for example, providing
content and functionality used by consumers to refer deals to other consumers (as shown in
Exhibit G).
17. LivingSocial has caused and continues to cause damage to Blue Calypso, and BlueCalypso is entitled to recover from LivingSocial the damages sustained by LivingSocial as a
result of LivingSocials wrongful acts in an amount subject to proof at trial. LivingSocials
infringement of the 516 Patent has caused and will continue to cause irreparable harm to Blue
Calypso for which there is no adequate remedy at law unless and until LivingSocial is enjoined
by this Court from infringing the 516 Patent.
18. LivingSocial was notified of its infringement of the 516 Patent at least as early asthe filing of the initial complaint on August 24, 2012, and has provided detailed infringement
contentions pursuant to P.R. 3-1 specifically identifying LivingSocials infringing conduct, but
LivingSocial thereafter continued to infringe the 516 Patent by continuing the identified
infringing activities and instrumentalities. On information and belief, LivingSocials
infringement has been and continues to be willful.
COUNT IIINFRINGEMENT OF U.S. PATENT NO. 8,155,679
19. The allegations set forth in the foregoing paragraphs 1 through 18 areincorporated into this Second Count.
20. On April 10, 2012, United States Patent No. 8,155,679 (the 679 Patent),entitled System and Method for Peer-to-Peer Advertising Between Mobile Communication
Devices, was duly and legally issued by the United States Patent and Trademark Office. A true
and correct copy of the 679 Patent is attached as Exhibit B to this Complaint.
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_____________________________________________________________________________PLAINTIFF BLUE CALYPSOS AMENDED COMPLAINT FOR PATENT INFRINGEMENT
AND JURY DEMAND Page 5 of 12
21. Blue Calypso is the assignee and owner of the right, title and interest in and to the679 Patent, including the right to assert all causes of action arising under said patent and the
right to any remedies for the infringement of it.
22. Blue Calypso has marked all or substantially all of its products covered by the 679Patent in accordance with 35 U.S.C. 287(a). LivingSocial has received constructive notice of
the 679 Patent prior to the filing of this lawsuit and of the 679 Patent, and at least as early as its
issuance, in accordance with 35 U.S.C. 287(a).
23. LivingSocial has and continues to infringe the 679 Patent by operating a computer-based program as shown in Exhibits F and G, which depict screenshots of LivingSocials
computer-based program. LivingSocials computer-based program includes functionality for
enrolling both consumers and advertisers and for offering deals to consumers, as depicted in
Exhibit F, based on identification of at least a geographic match between the consumers profile
information and the advertisers deal. After offering the deal to the consumer based on such a
geographic match, LivingSocial provides additional functionality for encouraging the consumer
to refer the deal to other consumers. In particular, LivingSocial provides content to the referring
consumer to carry out such a referral as depicted in Exhibit G.
24. In violation of 35 U.S.C. 271, LivingSocial has infringed and continues toinfringe one or more claims of the 679 Patent, literally and/or under the doctrine of equivalents,
directly and/or indirectly.
25. LivingSocial induces infringement of the 679 Patent by, for example, encouraginguse of its computer-based program by consumers and advertisers through the use of discounts
and incentives. LivingSocial contibutorily infringes the 679 Patent by, for example, providing
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_____________________________________________________________________________PLAINTIFF BLUE CALYPSOS AMENDED COMPLAINT FOR PATENT INFRINGEMENT
AND JURY DEMAND Page 6 of 12
content and functionality used by consumers to refer deals to other consumers (as shown in
Exhibit G).
26. LivingSocial has caused and continues to cause damage to Blue Calypso, and BlueCalypso is entitled to recover from LivingSocial the damages sustained by LivingSocial as a
result of LivingSocials wrongful acts in an amount subject to proof at trial. LivingSocials
infringement of the 679 Patent has caused and will continue to cause irreparable harm to Blue
Calypso for which there is no adequate remedy at law unless and until LivingSocial is enjoined
by this Court from infringing the 679 Patent.
27. LivingSocial was notified of its infringement of the 679 Patent at least as early asthe filing of the initial complaint on August 24, 2012, and has provided detailed infringement
contentions pursuant to P.R. 3-1 specifically identifying LivingSocials infringing conduct, but
LivingSocial thereafter continued to infringe the 679 Patent by continuing the identified
infringing activities and instrumentalities. On information and belief, LivingSocials
infringement has been and continues to be willful.
COUNT IIIINFRINGEMENT OF U.S. PATENT NO. 8,438,055
28. The allegations set forth in the foregoing paragraphs 1 through 27 areincorporated into this Third Count.
29. On May 7, 2013, 2012, United States Patent No. 8,438,055 (the 055 Patent),entitled System and Method for Providing Endorsed Advertisements and Testimonials Between
Communications Devices, was duly and legally issued by the United States Patent and
Trademark Office. A true and correct copy of the 055 Patent is attached as Exhibit C to this
Complaint.
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_____________________________________________________________________________PLAINTIFF BLUE CALYPSOS AMENDED COMPLAINT FOR PATENT INFRINGEMENT
AND JURY DEMAND Page 7 of 12
30. Blue Calypso is the assignee and owner of the right, title and interest in and to the055 Patent, including the right to assert all causes of action arising under said patent and the
right to any remedies for the infringement of it.
31. LivingSocial has and continues to infringe the 055 Patent by operating acomputer-based program as shown in Exhibits F and G, which depict screenshots of
LivingSocials computer-based program. LivingSocials computer-based program includes
functionality for endorsed advertisement and testimonials between communications devices.
After offering the deal to the consumer based on such a geographic match, LivingSocial provides
additional functionality for encouraging the consumer to refer the deal to other consumers. In
particular, LivingSocial provides content to the referring consumer to carry out such a referral as
depicted in Exhibit G.
32. In violation of 35 U.S.C. 271, LivingSocial has infringed and continues toinfringe one or more claims of the 055 Patent, literally and/or under the doctrine of equivalents,
directly and/or indirectly.
33. LivingSocial induces infringement of the 055 Patent by, for example, encouraginguse of its computer-based program by consumers and advertisers through the use of discounts
and incentives. LivingSocial contibutorily infringes the 055 Patent by, for example, providing
content and functionality used by consumers to refer deals to other consumers (as shown in
Exhibit G).
COUNT IVINFRINGEMENT OF U.S. PATENT NO. 8,452,646
34. The allegations set forth in the foregoing paragraphs 1 through 33 are incorporatedinto this Fourth Count.
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_____________________________________________________________________________PLAINTIFF BLUE CALYPSOS AMENDED COMPLAINT FOR PATENT INFRINGEMENT
AND JURY DEMAND Page 8 of 12
35. On May 28, 2013, United States Patent No. 8,452,646 (the 646 Patent), entitledSystem and Method for Providing Endorsed Electronic Offers Between Communication
Devices, was duly and legally issued by the United States Patent and Trademark Office. A true
and correct copy of the 646 Patent is attached as Exhibit D to this Complaint.
36. Blue Calypso is the assignee and owner of the right, title and interest in and to the679 Patent, including the right to assert all causes of action arising under said patent and the
right to any remedies for the infringement of it.
37. LivingSocial has and continues to infringe the 646 Patent by operating acomputer-based program as shown in Exhibits F and G, which depict screenshots of
LivingSocials computer-based program. LivingSocials computer-based program includes
functionality for enrolling both consumers and advertisers and for bi-directional selection
between subscribers and advertisers, as depicted in Exhibit F and G. After offering the deal to the
consumer based on such a geographic match, LivingSocial provides additional functionality for
encouraging the consumer to refer the deal to other consumers. In particular, LivingSocial
provides content to the referring consumer to carry out such a selection as depicted in Exhibit G.
38. In violation of 35 U.S.C. 271, LivingSocial has infringed and continues toinfringe one or more claims of the 646 Patent, literally and/or under the doctrine of equivalents,
directly and/or indirectly.
39.LivingSocial induces infringement of the 646 Patent by, for example, encouraginguse of its computer-based program by consumers and advertisers through the use of discounts
and incentives. LivingSocial contibutorily infringes the 646 Patent by, for example, providing
content and functionality used by consumers to refer deals to other consumers (as shown in
Exhibit G).
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_____________________________________________________________________________PLAINTIFF BLUE CALYPSOS AMENDED COMPLAINT FOR PATENT INFRINGEMENT
AND JURY DEMAND Page 9 of 12
COUNT VINFRINGEMENT OF U.S. PATENT NO. 8,457,670
40. The allegations set forth in the foregoing paragraphs 1 through 39 areincorporated into this Fifth Count.
41. On June 4, 2013, United States Patent No. 8,4,457,670 (the 670 Patent),entitled System and Method for Peer-to-Peer Advertising Between Mobile Communication
Devices, was duly and legally issued by the United States Patent and Trademark Office. A true
and correct copy of the 670 Patent is attached as Exhibit E to this Complaint.
42. Blue Calypso is the assignee and owner of the right, title and interest in and to the670 Patent, including the right to assert all causes of action arising under said patent and the
right to any remedies for the infringement of it.
43. LivingSocial has and continues to infringe the 670 Patent by operating acomputer-based program as shown in Exhibits G and F, which depict screenshots of
LivingSocials computer-based program. LivingSocials computer-based program includes
functionality for enrolling both consumers and advertisers and for peer to peer advertising, as
depicted in Exhibit F. LivingSocial provides additional functionality for encouraging the
consumer to refer the deal to other consumers. In particular, LivingSocial provides content to the
referring consumer to carry out such advertising as depicted in Exhibit G.
44. In violation of 35 U.S.C. 271, LivingSocial has infringed and continues toinfringe one or more claims of the 670 Patent, literally and/or under the doctrine of equivalents,
directly and/or indirectly.
45. LivingSocial induces infringement of the 670 Patent by, for example,encouraging use of its computer-based program by consumers and advertisers through the use of
discounts and incentives. LivingSocial contibutorily infringes the 670 Patent by, for example,
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_____________________________________________________________________________PLAINTIFF BLUE CALYPSOS AMENDED COMPLAINT FOR PATENT INFRINGEMENT
AND JURY DEMAND Page 10 of 12
providing content and functionality used by consumers to refer deals to other consumers (as
shown in Exhibit G).
JURY DEMAND
46. Pursuant to Rule 38 of the Federal Rules of Civil Procedure, Blue Calypsodemands a trial by jury on all issues triable as such.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff Blue Calypso demands judgment for itself and against
Defendant LivingSocial as follows:
A. An adjudication that LivingSocial has infringed the Asserted Patents;B. That this Court enter an order permanently enjoining LivingSocial and its officers,
agents, employees, attorneys, and all persons in active concert or participation with any of them,
from infringing the Asserted Patents;
C. An award of damages to be paid by LivingSocial adequate to compensate BlueCalypso for LivingSocials infringement of the Asserted Patents together with pre-judgment and
post-judgment interest and costs under 35 U.S.C. 284;
D. That this Court order an accounting of all infringing acts including, but notlimited to, those acts not presented at trial, and award Blue Calypso additional damages for any
such acts;
E. A declaration that this case is exceptional under 35 U.S.C. 285, and an award ofBlue Calypsos attorneys fees, expenses, and costs incurred in this action; and
F. An award to Blue Calypso of such further relief at law or in equity as the Courtdeems just and proper.
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_____________________________________________________________________________PLAINTIFF BLUE CALYPSOS AMENDED COMPLAINT FOR PATENT INFRINGEMENT
AND JURY DEMAND Page 11 of 12
Dated: June 14, 2013 Respectfully submitted,
/s/ M. Brett JohnsonM. Brett Johnson
State Bar No. 00790975FARNEY DANIELS PC
8401 North Central Expressway
Suite 280Dallas, Texas 75225Telephone: 972-432-5780
Facsimile: 972-432-5781
Email: [email protected]
Bryan D. Atkinson
Texas State Bar No. 24036157FARNEY DANIELS PC
800 S. Austin Ave., Suite 200Georgetown, Texas 78626
Telephone: 512-582-2828Facsimile: 512-582-2829Email:[email protected]
Melissa Richards Smith Lead AttorneyTexas State Bar No. 24001351
GILLAM & SMITH, L.L.P.
303 South Washington Avenue
Marshall, Texas 75670
Telephone: (903) 934-8450Facsimile: (903) 934-9257
Email: [email protected]
COUNSEL FOR PLAINTIFF
BLUE CALYPSO, INC.
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_____________________________________________________________________________PLAINTIFF BLUE CALYPSOS AMENDED COMPLAINT FOR PATENT INFRINGEMENT
AND JURY DEMAND Page 12 of 12
CERTIFICATE OF SERVICE
The undersigned hereby certifies that all counsel of record who are deemed to have
consented to electronic service are being served with a copy of this document via the Courts
CM/ECF system per Local Rule CV-5(a)(3) on June 14, 2013.
/s/ M. Brett Johnson
M. Brett Johnson
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EXHIBIT A
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EXHIBIT B
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EXHIBIT C
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Case 2:12-cv-00518-JRG Document 47-3 Filed 06/14/13 Page 17 of 24 PageID #: 297
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Case 2:12-cv-00518-JRG Document 47-3 Filed 06/14/13 Page 18 of 24 PageID #: 298
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Case 2:12-cv-00518-JRG Document 47-3 Filed 06/14/13 Page 19 of 24 PageID #: 299
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Case 2:12-cv-00518-JRG Document 47-3 Filed 06/14/13 Page 20 of 24 PageID #: 300
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Case 2:12-cv-00518-JRG Document 47-3 Filed 06/14/13 Page 21 of 24 PageID #: 301
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Case 2:12-cv-00518-JRG Document 47-3 Filed 06/14/13 Page 22 of 24 PageID #: 302
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Case 2:12-cv-00518-JRG Document 47-3 Filed 06/14/13 Page 23 of 24 PageID #: 303
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Case 2:12-cv-00518-JRG Document 47-3 Filed 06/14/13 Page 24 of 24 PageID #: 304
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Case 2:12-cv-00518-JRG Document 47-4 Filed 06/14/13 Page 2 of 25 PageID #: 306
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Case 2:12-cv-00518-JRG Document 47-4 Filed 06/14/13 Page 3 of 25 PageID #: 307
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Case 2:12-cv-00518-JRG Document 47-4 Filed 06/14/13 Page 4 of 25 PageID #: 308
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Case 2:12-cv-00518-JRG Document 47-4 Filed 06/14/13 Page 5 of 25 PageID #: 309
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Case 2:12-cv-00518-JRG Document 47-4 Filed 06/14/13 Page 6 of 25 PageID #: 310
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Case 2:12-cv-00518-JRG Document 47-4 Filed 06/14/13 Page 7 of 25 PageID #: 311
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Case 2:12-cv-00518-JRG Document 47-4 Filed 06/14/13 Page 8 of 25 PageID #: 312
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Case 2:12-cv-00518-JRG Document 47-4 Filed 06/14/13 Page 9 of 25 PageID #: 313
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Case 2:12-cv-00518-JRG Document 47-4 Filed 06/14/13 Page 10 of 25 PageID #: 314
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Case 2:12-cv-00518-JRG Document 47-4 Filed 06/14/13 Page 11 of 25 PageID #: 315
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Case 2:12-cv-00518-JRG Document 47-4 Filed 06/14/13 Page 12 of 25 PageID #: 316
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Case 2:12-cv-00518-JRG Document 47-4 Filed 06/14/13 Page 14 of 25 PageID #: 318
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Case 2:12-cv-00518-JRG Document 47-4 Filed 06/14/13 Page 15 of 25 PageID #: 319
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Case 2:12-cv-00518-JRG Document 47-4 Filed 06/14/13 Page 16 of 25 PageID #: 320
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Case 2:12-cv-00518-JRG Document 47-4 Filed 06/14/13 Page 17 of 25 PageID #: 321
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Case 2:12-cv-00518-JRG Document 47-4 Filed 06/14/13 Page 18 of 25 PageID #: 322
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Case 2:12-cv-00518-JRG Document 47-4 Filed 06/14/13 Page 19 of 25 PageID #: 323
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Case 2:12-cv-00518-JRG Document 47-4 Filed 06/14/13 Page 20 of 25 PageID #: 324
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Case 2:12-cv-00518-JRG Document 47-4 Filed 06/14/13 Page 21 of 25 PageID #: 325
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Case 2:12-cv-00518-JRG Document 47-4 Filed 06/14/13 Page 22 of 25 PageID #: 326
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Case 2:12-cv-00518-JRG Document 47-4 Filed 06/14/13 Page 23 of 25 PageID #: 327
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Case 2:12-cv-00518-JRG Document 47-4 Filed 06/14/13 Page 24 of 25 PageID #: 328
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Case 2:12-cv-00518-JRG Document 47-4 Filed 06/14/13 Page 25 of 25 PageID #: 329
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EXHIBIT E
Case 2:12-cv-00518-JRG Document 47-5 Filed 06/14/13 Page 1 of 19 PageID #: 330
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Case 2:12-cv-00518-JRG Document 47-5 Filed 06/14/13 Page 2 of 19 PageID #: 331
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Case 2:12-cv-00518-JRG Document 47-5 Filed 06/14/13 Page 3 of 19 PageID #: 332
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Case 2:12-cv-00518-JRG Document 47-5 Filed 06/14/13 Page 4 of 19 PageID #: 333
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Case 2:12-cv-00518-JRG Document 47-5 Filed 06/14/13 Page 5 of 19 PageID #: 334
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Case 2:12-cv-00518-JRG Document 47-5 Filed 06/14/13 Page 6 of 19 PageID #: 335
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Case 2:12-cv-00518-JRG Document 47-5 Filed 06/14/13 Page 7 of 19 PageID #: 336
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Case 2:12-cv-00518-JRG Document 47-5 Filed 06/14/13 Page 8 of 19 PageID #: 337
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Case 2:12-cv-00518-JRG Document 47-5 Filed 06/14/13 Page 9 of 19 PageID #: 338
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Case 2:12-cv-00518-JRG Document 47-5 Filed 06/14/13 Page 10 of 19 PageID #: 339
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Case 2:12-cv-00518-JRG Document 47-5 Filed 06/14/13 Page 11 of 19 PageID #: 340
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Case 2:12-cv-00518-JRG Document 47-5 Filed 06/14/13 Page 12 of 19 PageID #: 341
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Case 2:12-cv-00518-JRG Document 47-5 Filed 06/14/13 Page 13 of 19 PageID #: 342
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Case 2:12-cv-00518-JRG Document 47-5 Filed 06/14/13 Page 14 of 19 PageID #: 343
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Case 2:12-cv-00518-JRG Document 47-5 Filed 06/14/13 Page 16 of 19 PageID #: 345
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Case 2:12-cv-00518-JRG Document 47-5 Filed 06/14/13 Page 17 of 19 PageID #: 346
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Case 2:12-cv-00518-JRG Document 47-5 Filed 06/14/13 Page 18 of 19 PageID #: 347
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Case 2:12-cv-00518-JRG Document 47-5 Filed 06/14/13 Page 19 of 19 PageID #: 348
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EXHIBIT F
Case 2:12-cv-00518-JRG Document 47-6 Filed 06/14/13 Page 1 of 2 PageID #: 349
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Case 2:12-cv-00518-JRG Document 47-6 Filed 06/14/13 Page 2 of 2 PageID #: 350
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EXHIBIT G
Case 2:12-cv-00518-JRG Document 47-7 Filed 06/14/13 Page 1 of 4 PageID #: 351
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Case 2:12-cv-00518-JRG Document 47-7 Filed 06/14/13 Page 2 of 4 PageID #: 352
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Case 2:12-cv-00518-JRG Document 47-7 Filed 06/14/13 Page 3 of 4 PageID #: 353
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Case 2:12-cv-00518-JRG Document 47-7 Filed 06/14/13 Page 4 of 4 PageID #: 354