Yummie Tummie Amended Initial Disclosures

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NY 74658671
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

SPANX, INC., )
)
Plaintiff, ) Case No. 13-CV-00710-WSD
)
v. )
)
TIMES THREE CLOTHIER, LLC )
d/b/a Yummie Tummie, )
)
Defendant. )

DEFENDANTS TIMES THREE CLOTHIER, LLCS
FIRST AMENDED INITIAL DISCLOSURES
Pursuant to Rule 26 of the Federal Rules of Civil Procedure, Defendant Times
Three Clothier, LLC (TTC) makes the following initial disclosures:

GENERAL OBJECTIONS
1. The following disclosures are based upon information reasonably
available to, and currently in the possession, custody or control of, TTC. To the
best of TTCs knowledge, information and belief, these disclosures are complete
and correct as of the date they are made. Nevertheless, TTC may obtain additional
facts, identify additional persons who may have knowledge relevant to the issues in
this action, remove certain persons from the list, and/or identify additional
Case 1:13-cv-00710-WSD Document 27 Filed 07/11/13 Page 1 of 19
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documents relevant to the factual disputes in this action, through its continuing pre-
trial research, investigation and analysis and through discovery of Plaintiff Spanx,
Inc. (Spanx) and/or any third parties. TTC expressly reserves its rights: (a) to
make subsequent revision, supplementation or amendment to these disclosures
based upon any information, evidence, documents, facts and things which hereafter
may be discovered, or the relevance of which may hereafter be discovered; and (b)
to produce, introduce or rely upon additional or subsequently acquired or
discovered writings, evidence and information at trial or in any pre-trial
proceedings held herein.
2. TTC objects to any disclosure of information or documents beyond
that required by the Federal Rules of Civil Procedure, the Federal Rules of
Evidence, the Local Rules of the Northern District of Georgia or other applicable
law.
3. TTC does not, and will not, provide herein any information or
documents protected by the attorney-client, attorney work product, or any other
valid privilege.
4. TTC objects to the identification or production of any documents or
information that contain trade secrets or other confidential research, development
or commercial business information of TTC.
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5. Any information or documents provided by TTC in connection with
these disclosures is subject to all objections as to competence, relevance,
materiality and admissibility, as well as to any other objections on any grounds that
would require the exclusion thereof if such information were offered into evidence,
and TTC expressly reserves all such objections and grounds.
DISCLOSURES
(1) If the defendant is improperly identified, state defendant's correct
identification and state whether defendant will accept service of an amended
summons and complaint reflecting the information furnished in this
disclosure response.
Response: TTC has been correctly identified.
(2) Provide the names of any parties whom defendant contends are
necessary parties to this action, but who have not been named by plaintiff. If
defendant contends that there is a question of misjoinder of parties, provide
the reasons for defendant's contention.
Response: There are no other parties that TTC contends are necessary
parties.
(3) Provide a detailed factual basis for the defense or defenses and any
counterclaims or crossclaims asserted by defendant in the responsive
pleading.
Response: Times Three contends that Spanx has infringed U.S. Design
Patent Nos. D606,285, D616,627 D622,477, D623,377, D665,558, and D666,384
(collectively, patents-in-suit), by making, using, selling, offering for sale and/or
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importing The Total Taming Tank, also known as The Spanx Total Taming Tank,
the Top This Tank Style 1847, and the Top This Cami Style 1846 (collectively the
Accused Products) as pictured in Exhibit 1, attached hereto. The Accused
Products are offered for sale and sold directly to customers via Spanxs website.
Certain of the Accused Products are also offered for sale and sold by retailers, such
as JC Penney, Kohls and QVC.
At a minimum, these three Spanx products infringe at least one of the
patents-in-suit which can be readily ascertained by a comparison of the Accused
Products and the claimed designs. For example, Exhibit 1 depicts the Accused
Products and certain drawings from the patents-in-suit that the Accused Products
infringe. Accordingly, under the standard for infringement set forth by Federal
Circuit in Egyptian Goddess, Inc. v. Swisa, Inc., 564 F.3d 665 (Fed. Cir. 2008), in
the eye of an ordinary observer, the designs at issues are substantially similar to the
claimed designs, and thus the Accused Products infringe the patents-in-suit.
(4) Describe in detail all statutes, codes, regulations, legal principles,
standards and customs or usages, and illustrative case law which defendant
contends are applicable to this action.
Response: Times Three asserts that Spanx has infringed its patents pursuant
to 35 U.S.C. 281, induced others, such as third party garment retailers, to infringe
pursuant to 35 U.S.C. 271(b) and that Times Three is entitled to damages
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pursuant to 35 U.S.C. 284 and/or 289. Times Three also asserts that Spanx has
willfully infringed, making this case an exceptional case.
The Federal Circuit has set forth the standard for finding design patent
infringement in Egyptian Goddess, Inc. v. Swisa, Inc., 564 F.3d 665 (Fed. Cir.
2008) and its progeny. Specifically, the Court held that the ordinary observer
test, that is, the ordinary observer, familiar with the prior art designs, would be
deceived into believing that the accused product is the same as the patented design,
is the sole test for determining design patent infringement. Id. at 681, 678. See
also Richardson v. Stanley Works, Inc., 597 F.3d 1288, 1295 (Fed. Cir. 2010).
Times Three contends that the above cited case law and related cases are
applicable in the Courts determination that Spanxs products, including the
Accused Products, infringe certain of the patents-in-suit, as identified in Exhibit 1.
(5) Provide the name and, if known, the address and telephone number
of each individual likely to have discoverable information that you may use to
support your claims or defenses, unless solely for impeachment, identifying
the subjects of the information.
Response: See Attachment A.
(6) Provide the name of any person who may be used at trial to present
evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence. For
all experts described in Fed.R.Civ.P. 26(a)(2)(B), provide a separate written
report satisfying the provisions of that rule.
Response: See Attachment B.
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(7) Provide a copy of, or description by category and location of, all
documents, data compilations or other electronically stored information, and
tangible things in your possession, custody, or control that you may use to
support your claims or defenses unless solely for impeachment, identifying the
subjects of the information.
Response: See Attachment C.
(8) In the space provided below, provide a computation of any category
of damages claimed by you. In addition, include a copy of, or describe by
category and location of, the documents or other evidentiary material, not
privileged or protected from disclosure on which such computation is based,
including materials bearing on the nature and extent of injuries suffered,
making such documents or evidentiary material available for inspection and
copying under Fed.R.Civ.P. 34.
Response: See Attachment D.
(9) If defendant contends that some other person or legal entity is, in
whole or in part, liable to the plaintiff or defendant in this matter, state the
full name, address, and telephone number of such person or entity and
describe in detail the basis of such liability.
Response: On information and belief, Times Three believes that JC Penney,
Kohls and QVC (retailers) are liable, in whole or in part, for infringement of
certain patents-in-suit because the retailers offer for sale or sell at least one of the
Accused Products. Times Three reserves its right to amend and/or supplement
these initial disclosures to identify other persons or legal entities as appropriate.
(10) Attach for inspection and copying as under Fed.R.Civ.P. 34 any
insurance agreement under which any person carrying on an insurance
business may be liable to satisfy part or all of a judgment which may be
entered in this action or to indemnify or reimburse for payments to satisfy the
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judgment. (Attach copy of insurance agreement to Initial Disclosures as
Attachment E.)
Response: See Attachment E.

Kilpatrick Townsend & Stockton LLP
OF COUNSEL:
By: s/Theodore H. Davis Jr.
Steven B. Pokotilow
Laura Goldbard George
Irah H. Donner
Binni N. Shah
Theodore H. Davis Jr.
Ga. Bar. No. 212913
1100 Peachtree Street, Suite 2800
Atlanta, GA 30309-4528
STROOCK & STROOCK & LAVAN LLP
180 Maiden Lane
New York, NY 10038-4982
(212) 806-5400
tdavis@kilpatricktownsend.com

Dated: July 11, 2013
Attorneys for Defendant Times Three
Clothier, LLC

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NY 74658671
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

SPANX, INC., )
)
Plaintiff, ) Case No. 13-CV-00710-WSD
)
v. )
)
TIMES THREE CLOTHIER, LLC )
d/b/a Yummie Tummie, )
)
Defendant. )

CERTIFICATE OF SERVICE

I certify that on July 11, 2013, I electronically filed the foregoing document
using the CM/ECF system which will send notification of such filing as follows:
Natasha H. Moffitt
Laura S. Huffman
King & Spalding LLP
1180 Peachtree Street, N.E.
Atlanta, GA 30309-3521

Kathleen E. McCarthy
King & Spalding LLP
1185 Avenue of the Americas
New York, NY 10036

s/ Theodore H. Davis Jr.
Theodore H. Davis Jr.
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NY 74658671
ATTACHMENT A
As of the date of these disclosures, TTC is informed and believes that the
following individuals are likely to have discoverable information that TTC may
use to support its design patent infringement claim set forth in TTCs Answer and
Counterclaims, and damages therefor. TTC also deems any individual that Spanx
discloses in its initial disclosures to be incorporated by reference herein as
individuals that TTC may use to support its claim.
By disclosing the names and titles of current employees of TTC and of other
individuals who may have information, TTC does not consent to any effort to
contact such witnesses other than through TTCs counsel.
NAME

ADDRESS

SUBJECT
Heather
Thomson
Schindler
561 Seventh Ave.
12th Floor
New York, NY 10018
Information relating to the creation of
the garment design that led to U.S.
Design Patent Nos. D606,285, D616,627
D622,477, D623,377, D665,558, and
D666,384 (collectively, patents-in-
suit);

Information relating to the sales, profits
and revenues of the Yummie Tummie
products;

Nonobviousness and secondary
considerations
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Michelle Daray
15614 Detroit Avenue,
Suite 1
Lakewood, OH 44107
Information relating to the production,
manufacturing and/or development of
Yummie Tummie products embodying
the patents-in-suit;

products;

Information relating to the first sale of
products embodying the patents-in-suit
Wendy Herman
561 Seventh Ave.
12th Floor
New York, NY 10018
products
Laurie Ann
Goldman
CEO of Spanx
3344 Peachtree Rd NE
Suite #1700
Atlanta, GA 30305
Information relating to sales,
marketing, design and manufacture
of Spanxs garments, including but
not limited to The Total Taming Tank
A226764, also known as The Spanx
Total Taming Tank, The Top This
Tank Style 1847 and The Top This
Cami Style 1846 (the Accused
Products).
Sara Blakely
Founder/Owner
of Spanx
Suite #1700
Atlanta, GA 30305
Information relating to sales, marketing,
and design and manufacture of the
Accused Products
Bradley Bell
CFO of Spanx
Suite #1700
Atlanta, GA 30305
Information relating to Spanxs profits
and revenues related to the garments that
infringe the patents-in-suit
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Tosha Hays
Design Director
of Spanx
Suite #1700
Atlanta, GA 30305
Information relating to design of the
Accused Products

Other
employees of
Spanx
(not yet
identified)
Not yet identified.
Information relating to design of the
Accused Products;

Information relating to Spanxs
contentions that it does not infringe the
patents-in-suit;

Information relating to Spanxs
contentions that the patents-in-suit are
invalid or unenforceable, including but
not limited to information relating to any
prior art that Spanx contends renders the
patents-in-suit obvious.

TTC reserves the right to amend or supplement this list of witnesses as
necessary.

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ATTACHMENT B

TTC states that identification of experts and disclosure of expert reports are
premature at this point, given that discovery has just begun. TTC will, in due
course, supplement these Initial Disclosures to identify any person who may be
used at trial to present evidence under Rules 702, 703, or 705 of the Federal Rules
of Evidence and submit written expert disclosures as applicable.

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ATTACHMENT C

Pursuant to Rule 26(a)(1)(A)(ii) of the Federal Rules of Civil Procedure and
subject to its General Objections, TTC will produce or make available for
inspection the following categories of documents and things upon entry of a Court-
approved Protective Order to the extent they are in the possession, custody or
control of TTC and can be located upon reasonable investigation, are not
privileged, and upon which TTC may rely to support its design patent infringement
claim set forth in TTCs Answer and Counterclaims, and damages therefor.
1. Documents relating to the prosecution history of the patents-in-suit.
2. Documents relating to the assignment of Heather Thomson
Schindlers rights in the patents-in-suit to TTC.
3. Samples of TTCs garments that embody the patents-in-suit. Some of
these samples are located at TTCs headquarters.
4. Samples of Spanxs accused products including but not limited to the
Accused Products and/or any other product made by or for, used, or
sold, or offered for sale by Spanx which has an appearance or design
that is similar to the Accused Products. These samples are believed to
be located at Spanxs headquarters.
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The above-referenced categories of documents are being compiled and will be
maintained at the offices of Stroock & Stroock & Lavan LLP, 180 Maiden Lane,
New York, NY 10038, except as otherwise noted. TTC reserves the right to amend
or supplement this list of categories of documents as necessary.

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ATTACHMENT D
TTC does not at this time possess sufficient information to estimate damages
pursuant to Rule 26(a)(1)(A)(iii) of the Federal Rules of Civil Procedure.
However, TTC intends to seek damages based on its lost profits, Spanxs profits,
and/or a reasonable royalty rate. TTC also reserves its right to seek treble
damages, reasonable attorney fees and costs to the extent such is recoverable under
applicable law.

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ATTACHMENT E
Pursuant to Fed. R. Civ. P. 26(a)(1)(A)(iv), and to the extent that any
insurance agreements exist, TTC will produce or make available for inspection
upon entry of a Court-approved Protective Order any insurance agreement under
which any person carrying on an insurance business may be liable to satisfy part or
all of a judgment, which may be entered in this action, or to indemnify or
reimburse for payments made to satisfy such judgment.


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