Kangaroo Manufacturing Incorporated v. Amazon.com Incorporated
Court Docket Sheet

District of Arizona

2:2017-cv-01806 (azd)

* SERVICE EXECUTED: Certificate of Service of service of summons, reports, notice of errata, exhibits, complaint and jury demand, notice and general order on Amazon.com on 6/13/17 by Kangaroo Manufacturing Incorporated.

Case 2:17-cv-01806-MHB Document 12 Filed 06/23/17 Page 1 of 2 1 FENNEMORE CRAIG, P.C. Ray K. Harris (No. 007408) 2 2394 East Camelback Road, Suite 600 Phoenix, AZ 85016-3429 3 Telephone: (602) 916-5000 Email: aabdo@fclaw.com 4 Email: rharris@fclaw.com 5 Attorneys for Plaintiff Kangaroo Manufacturing, Inc. 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE DISTRICT OF ARIZONA 10 No. CV-17-01806-PHX-MHB Kangaroo Manufacturing, Inc., a 11 Florida corporation Plaintiff, NOTICE OF FILING CERTIFICATE OF 12 SERVICE 13 v. 14 Amazon.com, Inc., a Delaware corporation 15 Defendant. 16 Plaintiff Kangaroo Manufacturing, Inc. hereby submits its Notice of Filing 17 Certificate of Service. 18 DATED this 23rd day of June, 2017. 19 20 FENNEMORE CRAIG, P.C. 21 22 By:/s/Ray K. Harris Ray K. Harris 23 Attorneys for Plaintiff 24 25 26 FENNEMORE CRAIG, P.C. PHOENI X 13005714.1/045374.0001 Case 2:17-cv-01806-MHB Document 12 Filed 06/23/17 Page 2 of 2 1 CERTIFICATE OF SERVICE 2 I hereby certify that on June 23, 2017, I electronically transmitted Plaintiff’s Notice 3 of Filing Certificate of Service to the Clerk’s Office using CM/ECF System for filing with 4 a copy mailed and emailed to: 5 James E Geringer Klarquist Sparkman LLP 6 121 SW Salmon St., Suite 1600 Portland OR 97204 7 james.geringer@klarquist.com Attorney for Defendant Amazon.com, Inc. 8 9/s/Vicki L. Morgan An employee of Fennemore Craig, PC 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 FENNEMORE CRAIG, P.C. PHOENI X 13005714.1/045374.0001-2-

Affidavit Certificate of Service) * Modified to correct event; attorney noticed on 6/26/2017 (LAD

Case 2: 17-cv-01806-MHB Document 12-1 Filed 06/23/17 Page 1 of 1 Attorney or Party without Attorney FENNEMORE CRAIG, P. C. RAY K. HARRIS (# O07408) 2394 E CAMELBACK ROAD # 600 PHOENIX, AZ 85016 Telephone No (602) 916 5000 For Court Use Only Attorney For PLAINTIFF Ref. No. or Fife No.; 045374, 000 Insert name of Court, and judicial District and Branch Court UNITED STATES DISTRICT COURT FOR THE DSTRICT OF ARIZONA Pialntiff KANGAROO MANUFACTURING INC, A FLORIDA CORPORATION, Defendant: AMAZON.COM, INC, A DELAWARE CORPORATION, CERTIFICATE OF SERVICE Hearing Date; Time Dept/Dir Cose Number; CV-17-01806-PHX MHB 1. At the time of service I was at least 21 years of age and not a party to this action 2. I served copies of the SUMMONS IN ACIVIL ACTION; REPORT ON THE FIELING OR DETERMINATION OF AN ACTION OR APPEAL REGARDING A COPYRIGHT; REPORT ON THE FILING OR DETERMINATION OF AN ACTION REGARDING A PATENT OR TRADEMARK; NOTICE OF ERRATA; EXHIBST 1-2; COMPLAINT AND DEMAND FOR JURY TRIAL; EXHIBIT 1-2: NOTICE TO PARTIES-MANDATORY INITIAL DISCOVERY PILOT PROJECT: GENERAL ORDER 17 OB; 3. a Parity served: AMAZON.COM, INC B. Person served: CAROLINE LITTLE, AUTHORIZED 4. Address where the party was served: 300 DESCHUTES WAY, SW # 304, TUMWATER, WA 98501 5. I served the party: a by substituted service. On: Tue Jun 13 2017 at: 02: 43 PM by leaving the copies with or in the presence of CAROLINE LITTLE AUTHORIZED (a) {Person of suitable age and discretion. Informed him or her of the general nature of the papers. Service: $ 189. 00, Mileage: $ 0. 00, Notary: $ 10. 00, Wait: $ 0. 00, Fees Advanced: $ 0. 00, Total: $ 199. 00 I Declare under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct 6. Person Executing: a JEFF DEWITT; b. First Legal Support Services 3737 North 7th Street Suite 125 PHOENIX, AZ 8504 C. (602) 248-9700 17 (Signatre CERTIFICATE OF SERVICE FL 147S575 (576625) IRSTLEGA

First MOTION for Extension of Time to File Answer re: {{1}} Complaint by Amazon.com Incorporated.

Case 2:17-cv-01806-MHB Document 13 Filed 06/26/17 Page 1 of 3 1 JAMES E. GERINGER (admitted pro hac vice) james.geringer@klarquist.com 2 KLARQUIST SPARKMAN, LLP 3 121 SW Salmon Street, Suite 1600 Portland, Oregon 97204 4 Facsimile: (503) 595-5301 5 Telephone: (503) 595-5300 6 Attorneys for Defendant 7 AMAZON.COM, INC. 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE DISTRICT OF ARIZONA 10 11 Kangaroo Manufacturing, Inc., Case No.: 2:17-cv-01806-MHB 12 Plaintiff, UNOPPOSED MOTION BY 13 DEFENDANT AMAZON.COM, INC. 14 v. FOR EXTENSION OF TIME TO ANSWER, MOVE OR OTHERWISE 15 Amazon.com, Inc., RESPOND TO PLAINTIFF’S 16 COMPLAINT Defendant. DEMAND FOR JURY TRIAL 17 18 (First Request) 19 20 Defendant Amazon.com, Inc. ("Amazon"), without waiving any defenses set forth 21 in Fed. R. Civ. P. 12, moves this Court for a 21-day extension of time in which to answer 22 or otherwise respond to Kangaroo Manufacturing, Inc.’s Complaint ("complaint"). Plain-23 24 tiff Kangaroo Manufacturing, Inc. ("plaintiff") does not oppose this motion. 25 Amazon was served with plaintiff’s complaint on June 13, 2017, making Amazon’s 26 response due July 5, 2017 (in light of the July 4th holiday). Amazon requests the additional 27 Case 2:17-cv-01806-MHB Document 13 Filed 06/26/17 Page 2 of 3 1 time to review the complaint, prepare a response, and explore possible settlement. Amazon 2 therefore submits this unopposed motion for an extension of time up to and including July 3 25, 2017 in which to answer, move or otherwise respond to plaintiff’s complaint. 4 DATED this 26th day of June, 2017. 5 6 By: s/James E. Geringer JAMES E. GERINGER 7 (admitted pro hac vice) james.geringer@klarquist.com 8 KLARQUIST SPARKMAN, LLP 9 121 SW Salmon Street, Suite 1600 Portland, Oregon 97204 10 Telephone: (503) 595-5300 Facsimile: (503) 595-5301 11 12 Attorneys for Defendant AMAZON.COM, INC. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2 Case 2:17-cv-01806-MHB Document 13 Filed 06/26/17 Page 3 of 3 1 CERTIFICATE OF SERVICE 2 I hereby certify that on June 26, 2017, I electronically transmitted the foregoing 3 document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a 4 Notice of Electronic Filing to the following CM/ECF registrants: 5 6 RAY K. HARRIS FENNEMORE CRAIG, P.C. 7 2394 East Camelback Road, Suite 600 Phoenix, AZ 85016-3429 8 Telephone: (602) 916-5000 9 Email: rharris@fclaw.com 10 s/James E. Geringer James E. Geringer 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 CERTIFICATE OF SERVICE

Text of Proposed Order

Case 2:17-cv-01806-MHB Document 13-1 Filed 06/26/17 Page 1 of 1 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 Kangaroo Manufacturing, Inc., Case No.: 2:17-cv-01806-MHB 11 Plaintiff, ORDER GRANTING DEFENDANT 12 AMAZON.COM, INC.’S v. UNOPPOSED MOTION FOR 13 EXTENSION OF TIME TO ANSWER, 14 Amazon.com, Inc., MOVE OR OTHERWISE RESPOND TO PLAINTIFF’S ORIGINAL 15 Defendant. COMPLAINT 16 17 The Court, having reviewed Defendant Amazon.com, Inc.’s Unopposed Motion for 18 Extension of Time, and good cause appearing therefor, hereby GRANTS the Motion. 19 Pursuant to this Order, Defendant Amazon.com, Inc. shall have up to and including July 20 25, 2017 to answer or otherwise respond to plaintiff’s complaint. 21 22 23 24 25 26 27

Magistrate Election Form Deadline as to Amazon.com Incorporated.

Case 2:17-cv-01806-MHB Document 14 Filed 06/26/17 Page 1 of 1 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA CONSENT TO EXERCISE OF JURISDICTION BY UNITED STATES MAGISTRATE JUDGE INSTRUCTIONS TO ALL PARTIES ACTION REQUIRED WITHIN 14 DAYS Pursuant to Local Rule of Civil Procedure 3.7(b), all civil cases will be randomly assigned to a U.S. District Court Judge or to a U.S. Magistrate Judge. When a case is filed and assigned to a U.S. Magistrate Judge, consent forms, for all parties, are stamped with a case number and given to the individual who is filing the case. On these forms, consent may be given to the jurisdiction of the magistrate judge by signing the consent section of the form. If all parties consent, the case will remain with the magistrate judge, pursuant to 28:636(c)(1). These cases are assigned to a magistrate judge for all purposes, including trial and final entry of judgment. Any appeal from a judgment entered by the Magistrate Judge may be taken directly to the United States Court of Appeals for the Ninth Circuit in the same manner as an appeal from any other judgment of a district court. Consent to proceed before a Magistrate Judge is voluntary and no adverse consequences of any kind will be felt by any party or attorney who objects to assignment of a case to the Magistrate Judge. The party filing the case is responsible for serving all parties with the consent forms. If any party chooses the district judge option, the case will be randomly reassigned to a U.S. District Court Judge. To elect to have the case heard before a U.S. District Court Judge, the District Judge Option section of the form must be completed. Each party must file the completed consent form and certificate of service with the court no later than 14 days after entry of appearance or the filing of the Notice of Removal. This document should be filed in paper form only and a copy must be served by mail or hand delivery upon all parties of record in the case.

Consent Form)(MAP

Case 2:17-cv-01806-MHB Document 14-1 Filed 06/26/17 Page 1 of 1 1 (FOR USE IN CIVIL CASES WITH MAG JUDGE AS PRESIDER) 2 RETURN THIS FORM TO THE CLERK’S OFFICE NOT LATER THAN FOURTEEN (14) DAYS FROM YOUR APPEARANCE IN THIS CASE. 3 Do NOT electronically file this document! 4 IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA 5) 6) Plaintiff,) 7) Case No. vs.) 8) Defendant.) 9) 10 CONSENT TO EXERCISE OF JURISDICTION BY UNITED STATES MAGISTRATE JUDGE 11 In accordance with provisions of Title 28, U.S.C. Sec. 636(c)(1), the undersigned (party)(counsel of record for 12) in the above-captioned civil matter hereby voluntarily consents to have a United 13 States Magistrate Judge conduct any and all further proceedings in the case, including trial and entry of a final judgment, with direct review by the Ninth Circuit Court of Appeals if an appeal is filed. 14 15 Date: Signature 16 17 Print Name 18 DISTRICT JUDGE OPTION 19 Pursuant to Title 28, U.S.C. Sec. 636(c)(2) the undersigned (party)(counsel of record for) 20 in the above captioned civil matter acknowledges the availability of a United States Magistrate Judge but elects to have this case 21 randomly assigned to a United States District Judge. 22 Date: Signature 23 24 Print Name 25 CERTIFICATE OF SERVICE 26 I hereby certify that a true copy of the foregoing Consent was served (by mail) (by hand delivery) on all parties of record 27 in this case, this day of, 20. 28 Signature

ORDER granting {{13}} Unopposed Motion for Extension of Time to Answer. Amazon.com Incorporated answer due 7/25/2017. IT IS FURTHER ORDERED that in light of the recently implemented mandatory disclosure pilot project, that no further extensions may be granted, absent extraordinary circumstances. Signed by Magistrate Judge Michelle H Burns on 6/27/17.

Case 2:17-cv-01806-MHB Document 15 Filed 06/28/17 Page 1 of 1 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Kangaroo Manufacturing, Inc., Case No.: CV-17-01806-PHX-MHB 10 Plaintiff, ORDER 11 v. 12 Amazon.com, Inc., 13 Defendant. 14 15 The Court, having reviewed Defendant Amazon.com, Inc.’s Unopposed Motion 16 for Extension of Time (Doc. 13), and good cause shown, 17 IT IS ORDERED granting the Unopposed Motion (Doc. 13), 18 IT IS FURTHER ORDERED that Defendant Amazon.com, Inc. shall have up to 19 and including July 25, 2017, to answer or otherwise respond to plaintiff’s complaint. 20 IT IS FURTHER ORDERED that in light of the recently implemented mandatory 21 disclosure pilot project, that no further extensions may be granted, absent extraordinary 22 circumstances. 23 Dated this 27th day of June, 2017. 24 25 26 27 28

Corporate Disclosure Statement by Amazon.com Incorporated.

Case 2:17-cv-01806-MHB Document 16 Filed 06/28/17 Page 1 of 2 1 Name JAMES E. GERINGER Bar # (Admitted Pro Hac Vice) 2 Firm KLARQUIST SPARKMAN, LLP 3 Address 121 SW Salmon Street, Ste. 1600 4 Portland, OR 97204 james.geringer@klarquist.com 5 Telephone 503-595-5300 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 Kangaroo Manufacturing, Inc., 11 Plaintiff, 12 Case No. 2:17-cv-01806-PHX-MHB vs. 13 Corporate Disclosure Statement Amazon.com, Inc., 14 Defendant. 15 16 17 This Corporate Disclosure Statement is filed on behalf of Amazon.com, Inc. 18 in compliance with the provisions of: (check one) 19.0 Rule 7.1, Federal Rules of Civil Procedure, a nongovernmental corporate party to an 20 action in a district court must file a statement that identifies any parent corporation and any publicly held corporation that owns 10% or more of its stock or states that 21 there is no such corporation. 22 D Rule 12.4(a)(I), Federal Rule of Criminal Procedure, any nongovernmental corporate 23 party to a proceeding in a district court must file a statement that identifies any parent corporation and any publicly held corporation that owns 10% or more of its 24 stock or states that there is no such corporation. 25 D Rule 12.4(a)(2), Federal Rule of Criminal Procedure, ifan organizational victim of 26 alleged criminal activity is a corporation the government must file a statement identifying the victim and the statement must also disclose the information required 27 by Rule 12.4(a)(1). 28 Case 2:17-cv-01806-MHB Document 16 Filed 06/28/17 Page 2 of 2 1 The filing party hereby declares as follows: 2 [ZJ No such corporation. 3 D Party is a parent, subsidiary or other affiliate of a publicly owned corporation as listed below. (Attach additional pages ifneeded.) 4 5 o ______________ Relationship _ Publicly held corporation, not a party to the case, with a financial interest in the outcome. List identity of corporation and the nature offinancial interest. (Attach 6 additional pages if needed.) 7 r-_,__ Relationship _ 8 D Other(please explain) 9 10 A supplemental disclosure statement will be filed upon any change in the 11 information provided herein. 12 13 Dated this _2_Bt_h __ day of_J_u_n_e 2_0_17__ 14 15 s/James E. Geringer 16 Counsel of Record 17 18 19 Certificate of Service: 20 I hereby certify that on June 28, 2017, I electronically transmitted the Corporate Disclosure Statement for Amazon.com, Inc. to the Clerk's Office using CM/ECF 21 system for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: 22 23 RAY K. HARRIS FENNEMORE CRAIG, P.C. 24 2394 East Camelback Road, Suite 600 Phoenix, AZ 85016-3429 25 Telephone: (602) 916-5000 26 Email: rharris@fclaw.com s/James E. Geringer 27 28-2-

PRELIMINARY ORDER that motions pursuant to Fed. R. Civ. P. 12(b) are discouraged if the defect can be cured by filing an amended pleading. The parties must meet and confer prior to the filing of such motions to determine whether it can be avoided. FURTHER ORDERED that Plaintiff(s) serve a copy of this Order upon Defendant(s) and file a notice of service. See attached Order for complete details. Signed by Judge Steven P. Logan on 6/29/17.

Case 2:17-cv-01806-SPL Document 19 Filed 06/29/17 Page 1 of 6 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8) No. CV-17-01806-PHX-SPL Kangaroo Manufacturing, Inc., 9)) Plaintiff,) PRELIMINARY ORDER 10) vs. 11)) Amazon.com, Inc.,) 12) 13 Defendant.)) 14) 15 This matter having recently come before this Court, the parties are advised of the 16 following preliminary policies and procedures that will govern these proceedings, and are 17 ordered as follows. 18 Governing Rules 19 Both counsel and pro se litigants must abide by the Local Rules of Civil Procedure 20 ("LRCiv" or "Local Rules"), Rules of Practice of the U.S. District Court for the District 21 of Arizona, and the Federal Rules of Civil Procedure. 22 Case Management Conference 23 The Court will schedule a case management conference in accordance with Rule 24 16 of the Federal Rules of Civil Procedure once Defendant has been served or has 25 appeared in the action. As will be directed in the order setting the conference, the parties 26 will be required to engage in a Rule 26(f) meeting and submit a Joint Rule 26(f) Case 27 Management Report and a Joint Proposed Rule 16 Case Management Order. Outstanding 28 motions or requests to continue the Case Management Conference will not excuse the Case 2:17-cv-01806-SPL Document 19 Filed 06/29/17 Page 2 of 6 1 requirement to hold a Rule 26(f) meeting or submit the joint filings. 2 The Court will issue a Case Management Order following the date of the 3 scheduled conference. The Order will reflect the parties’ input and the Court’s considered 4 assessment of the time necessary to complete discovery and all pretrial submissions, and 5 will set forth additional policies and procedures that will apply in this case. 6 Mandatory Initial Discovery Pilot Project ("MIDP") 7 This case is subject to the MIDP, which was approved by the Judicial Conference 8 of the United States, has been implemented in the District of Arizona by General Order 9 17-08, and is adopted by this Court.1 The MIDP seeks to evaluate whether the use of 10 streamlined preliminary discovery will reduce costs and delays in civil litigation. The 11 following is attached to this Order: 2 12  Notice to Parties-Mandatory Initial Discovery Pilot Project 13  General Order 17-08 (Apr. 14, 2017) 14  Mandatory Initial Discovery Pilot Project Checklist 15  Mandatory Initial Discovery Users’ Manual for the District of Arizona 16 While this Order summarizes some of the key features of the MIDP, it is the 17 responsibility of the parties to carefully read the materials attached to this Order to ensure 18 familiarity and full compliance with the requirements of the MIDP. 19 Initial Discovery 20 The MIDP requires the parties to exchange certain categories of preliminary court-21 ordered discovery referred to as "Mandatory Initial Discovery Responses" (hereinafter 22 "MIDP Responses"). This requirement supersedes the initial disclosures required by 23 1 The MIDP applies to all civil cases filed on or after May 1, 2017, except to those categories of cases exempted by the General Order, which includes: cases listed in Rule 24 26(a)(1)(B), actions under the Private Securities Litigation Reform Act ("PSLRA"), and cases transferred for consolidated administration in this District by the Judicial Panel on 25 Multidistrict Litigation. 26 2 These materials have also been included with the Notice issued by the Clerk of Court in this case and may be found online at the District of Arizona’s Website or the 27 Federal Judicial Center’s Website. Two instructional videos are also available on these websites. 28 2 Case 2:17-cv-01806-SPL Document 19 Filed 06/29/17 Page 3 of 6 1 Federal Rule of Civil Procedure 26(a)(1), and is designed to accelerate the exchange of 2 relevant information that would otherwise be produced later in the litigation through 3 traditional discovery requests.3 4 Responsive Pleadings 5 The MIDP requires, with limited exceptions, that parties must file answers, 6 counterclaims, crossclaims, and replies within the time set forth in Federal Rule of Civil 7 Procedure 12, irrespective of whether any party has filed or intends to file a motion to 8 dismiss or other preliminary motion.4 9 Rule 12 Motions 10 Any motion made pursuant to Federal Rule of Civil Procedure 12 is discouraged if 11 the challenged defect in the pleading can be cured by filing an amended pleading. The 12 Court therefore requires: (1) conferral-the parties must confer prior to filing a motion to 13 dismiss for failure to state a claim or counterclaim pursuant to Rule 12(b)(6), or a motion 14 for judgment on the pleadings on a claim or counterclaim pursuant to Rule 12(c), to 15 determine whether such motion can be avoided; and (2) certification-a certificate of 16 conferral must be attached to any motion indicating that the movant notified the opposing 17 party of the issues asserted in its motion, the parties conferred (either in person, by 18 telephone, or in writing) but were unable to agree that the pleading was curable in any 19 part by a permissible amendment offered by the pleading party. Any motion lacking an 20 attached compliant certificate may be summarily stricken by the Court. 21 Amendments to the Pleadings 22 Parties shall endeavor not to oppose motions to amend that are filed prior to any 23 3 The MIDP sets forth two circumstances in which MIDP Responses may be 24 excused or deferred. However, unlike initial disclosures required by the federal rules, see Fed. R. Civ. P. 26(a)(1)(A)-(C), the parties may not opt out of the requirement to provide 25 MIDP Responses, or the MIDP itself. 4 Exception: The deadline for filing a responsive pleading may be deferred for good 26 cause where a motion to dismiss based on lack of subject-matter jurisdiction, lack of personal jurisdiction, sovereign immunity, absolute immunity, or qualified immunity of a 27 public official has been filed. The responsive pleading deadline however will not be deferred as a matter of course; a request for deferral must be made concurrently by 28 separate motion, stating the specific grounds to which this exception applies. 3 Case 2:17-cv-01806-SPL Document 19 Filed 06/29/17 Page 4 of 6 1 Rule 16 Case Management Conference or the deadline set forth by any Rule 16 Case 2 Management Order. Any motion for leave to amend or notice of amendment must be 3 filed in accordance with Rule 15.1 of the Local Rules of Civil Procedure. Any motion or 4 notice that does not comply with the local and federal rules may be stricken by the Court. 5 Protective Orders 6 As a general practice, this Court does not approve or adopt blanket, umbrella 7 protective orders or confidentiality agreements, even when stipulated to by the parties. 8 Further, the fact that the parties have designated materials or information as confidential 9 pursuant to an agreement or stipulation does not mean that the Court will order that the 10 filings containing such information be placed under seal. In the event discovery mandates 11 disclosure of specific, harmful, confidential material, the Court will entertain a request 12 for a protective order at that time if it is tailored to protect the particular interests at hand 13 in accordance with Rule 26(c) of the Federal Rules of Civil Procedure. Any party wishing 14 to seal a record or document and shield it from public view must prove why the interest 15 in secrecy outweighs the presumption of public access to judicial records and documents. 16 Corporate Statement 17 If applicable, full compliance with Rule 7.1 of the Federal Rules of Civil 18 Procedure is required. A Corporate Disclosure Statement form is available on the District 19 Court’s Website. 20 Communications with the Court 21 As a general matter, all communications with the Court regarding any case must 22 be made on the record. Telephone calls regarding routine administrative matters in civil 23 cases should be directed to this Court’s Judicial Assistant at (602) 322-7550. Direct 24 communications with law clerks is prohibited. No member of chambers staff will provide 25 the parties with legal advice concerning any matter. 26 Oral Arguments and Evidentiary Hearings 27 This Court does not have a preset schedule for setting oral arguments and 28 evidentiary hearings. The Court will schedule oral arguments and evidentiary hearings 4 Case 2:17-cv-01806-SPL Document 19 Filed 06/29/17 Page 5 of 6 1 when warranted and advise the parties accordingly. Any party desiring oral argument 2 should request it by noting it below the title of the related filing, see LRCiv 7.2(f); such 3 request should be made in instances where it would assist the resolution of the motion, 4 and not merely made as a matter of course. Any party desiring an evidentiary hearing 5 should request it in the body of its filing. Separate motions or requests for oral argument 6 or evidentiary hearings are subject to being stricken or may be modified on the docket to 7 a notice. 8 Filings 9 All electronic filings must be filed in a PDF text searchable format in accordance 10 with LRCiv 7.1(c). A paper copy of any document filed exceeding ten (10) pages in 11 length must be submitted to chambers. Documents which are too large for stapling must 12 be submitted in a three-ring binder. Electronic copies of proposed orders must be emailed 13 in Microsoft Word® format to Logan_Chambers@azd.uscourts.gov. 14 Noncompliance 15 The parties are specifically admonished that failure to prosecute, to comply with 16 court orders, or to comply with the local and federal rules may result in dismissal of all or 17 part of this case, default, imposition of sanctions, or summary disposition of matters 18 pending before the Court. See Fed. R. Civ. P. 41; LRCiv 7.2 ("[i]f a motion does not 19 conform in all substantial respects with the requirements of [the Local Rules], or if the 20 opposing party does not serve and file the required answering memoranda… such 21 noncompliance may be deemed a consent to the denial or granting of the motion and the 22 Court may dispose of the motion summarily"). The parties having been so advised, 23 IT IS ORDERED: 24 1. That Plaintiff must promptly serve a copy of this Order and its Attachments 25 on Defendant and file notice of service with the Clerk of Court; 26 2. That, in accordance with the MIDP General Order, Defendant must file a 27 responsive pleading (an answer, counterclaim, crossclaim, and/or reply) within the time 28 set forth in Federal Rule of Civil Procedure 12, irrespective of whether Defendant intends 5 Case 2:17-cv-01806-SPL Document 19 Filed 06/29/17 Page 6 of 6 1 to file a preliminary motion; 2 3. That, in accordance with the MIDP General Order, the parties must 3 exchange MIDP Responses and file notice of service with the Clerk of Court no later than 4 thirty (30) days after the first responsive pleading (an answer, counterclaim, crossclaim, 5 and/or reply) is filed; 6 4. That, in accordance with the MIDP General Order, supplemental MIDP 7 Responses shall be served on the opposing party no later than thirty (30) days after the 8 information is discovered or revealed; 9 5. That, in accordance with the MIDP General Order, the parties must produce 10 to the opposing party the electronically stored information identified in the MIDP 11 Responses no later than forty (40) days after the MIDP Responses have been served; and 12 6. That unless the Court orders otherwise, the parties shall file with the Clerk 13 of Court a notice of service of MIDP Responses, supplemental MIDP Responses, and 14 production of ESI, rather than copies of the actual disclosures. 15 Dated this 29th day of June, 2017. 16 17 Honorable Steven P. Logan United States District Judge 18 19 20 21 22 23 24 25 26 27 28 6

Notice)(CLB

Case 2:17-cv-01806-SPL Document 19-1 Filed 06/29/17 Page 1 of 23 1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE DISTRICT OF ARIZONA 7 8 In the matter of)) 9 MANDATORY INITIAL) NOTICE TO PARTIES-DISCOVERY PILOT PROJECT) MANDATORY INITIAL DISCOVERY 10) PILOT PROJECT 11) 12 13 Effective May 1, 2017, this Court began participating in a Mandatory Initial 14 Discovery Pilot ("MIDP") project approved by the Judicial Conference of the United 15 States. This case is subject to the pilot project. The details of the MIDP are set forth in 16 General Order 17-08, a copy of which is attached. It is the responsibility of the parties to 17 read the General Order carefully to ensure familiarity and compliance with the 18 requirements. A Checklist summarizing the key features and deadlines of the MIDP is 19 also attached to this Notice for the parties’ convenience. Particular attention should be 20 paid to the deadline for filing the initial and supplemental MIDP responses. Any party 21 seeking affirmative relief must serve a copy of this Notice, including General Order 17-22 08 and the MIDP Checklist, on each new party when the Complaint, Counterclaim, 23 Crossclaim, or Third-Party Complaint is served. 24 During the Fed. R. Civ. P. 26(f) conference, parties must discuss the MIDP 25 responses and seek to resolve any limitations or objections they have made or intend to 26 make in their responses. A description of the discussion regarding the MIDP responses 27 must be included in the Rule 26(f) report to the Court. 28 Case 2:17-cv-01806-SPL Document 19-1 Filed 06/29/17 Page 2 of 23 1 MIDP responses are not required to be filed if the parties submit (and the Court 2 approves) a written stipulation by all parties that no discovery will be conducted in the 3 case. Similarly, a party may defer the submission of MIDP responses once for 30 days if 4 all parties file a notice with the Court certifying that they are attempting to settle the case 5 and have a good faith belief that it will be resolved within 30 days of the due date of the 6 MIDP responses. The deadline for final supplementation of the MIDP responses normally 7 will be stated in the Court's Case Management Order. If no deadline is stated, final 8 supplementation must occur by the fact discovery deadline set in the Case Management 9 Order. 10 A notice must be filed with the Court when filing the MIDP responses and 11 supplements, but there is no requirement to file the documents themselves, unless there is 12 an unresolved dispute regarding the responses and supplements that the Court must 13 resolve during the Rule 16(b)(1) conference. 14 After the MIDP responses have been served, discovery under Fed. R. Civ. P. 30-15 36 and 45 may commence. 16 17 18 19 20 21 22 23 24 25 26 27 28-2-Case 2:17-cv-01806-SPL Document 19-1 Filed 06/29/17 Page 3 of 23 X FILED __LODGED __RECEIVED __COPY 1 2 APRIL 14, 2017 3 CLERK US DISTRICT COURT DISTRICT OF ARIZONA 4 BY s/M. Everette DEPUTY 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 In the matter of 10 MANDATORY INITIAL DISCOVERY PILOT PROJECT IN THE DISTRICT OF GENERAL ORDER 17-08 11 ARIZONA 12 13 14 IT IS HEREBY ORDERED: Effective May 1, 2017, the United States District 15 Court for the District of Arizona will begin participation in a Mandatory Initial Discovery 16 Pilot Project approved by the Judicial Conference of the United States. 17 The Mandatory Initial Discovery Pilot Project applies to all civil cases filed on or 18 after May 1, 2017, other than cases listed in Rule 26(a)(1)(B), actions under the Private 19 Securities Litigation Reform Act ("PSLRA"), and cases transferred for consolidated 20 administration in the District by the Judicial Panel on Multidistrict Litigation. The 21 discovery obligations addressed in this General Order supersede the disclosures required 22 by Rule 26(a)(1) and are framed as court-ordered mandatory initial discovery pursuant to 23 the Court’s inherent authority to manage cases, Rule 16(b)(3)(B)(ii), (iii), and (vi), and 24 Rule 26(b)(2)(C). Unlike initial disclosures required by current Rule 26(a)(1)(A) & (C), 25 this General Order does not allow the parties to opt out. 26 A. Instructions to Parties. 27 1. Any party seeking affirmative relief must serve a copy of the Notice to the 28 Parties of Mandatory Initial Discovery Pilot Project, including this General Order and the Case 2:17-cv-01806-SPL Document 19-1 Filed 06/29/17 Page 4 of 23 1 MIDP Checklist, on each new party when the Complaint, Counterclaim, Crossclaim, or 2 Third-Party Complaint is served. 3 2. The parties to this litigation are ordered to provide mandatory initial 4 discovery responses before initiating any further discovery in this case. The responses 5 are called for by the Court, not by discovery requests actually served by an opposing 6 party. Part B of this order sets forth the categories of information that must be provided 7 in each party’s mandatory initial discovery responses. After the mandatory initial 8 discovery responses have been provided, additional discovery may proceed under the 9 Federal Rules of Civil Procedure and as set forth in a case management order to be 10 entered by the Court. 11 3. Each party’s response must be based on the information then reasonably 12 available to it. A party is not excused from providing its response because it has not fully 13 investigated the case, it challenges the sufficiency of another party’s response, or another 14 party has not provided a response. Responses must be signed under oath by the party, 15 certifying that it is complete and correct as of the time it was made, based on the party’s 16 knowledge, information, and belief formed after a reasonable inquiry, and signed under 17 Rule 26(g) by the attorney. 18 4. Parties must provide the requested information as to facts that are relevant 19 to the claims and defenses in the case, whether favorable or unfavorable, and regardless 20 of whether they intend to use the information in presenting their claims or defenses. The 21 parties also must provide relevant legal theories in response to paragraph B.4 below. If a 22 party limits the scope of its response on the basis of privilege or work product, the party 23 must produce a privilege log as required by Rule 26(b)(5) unless the parties agree or the 24 Court orders otherwise. If a party limits its response on the basis of any other objection, 25 including an objection that providing the required information would involve 26 disproportionate expense or burden, it must explain with particularity the nature of the 27 objection and its legal basis, and provide a fair description of the information being 28 withheld.-2-Case 2:17-cv-01806-SPL Document 19-1 Filed 06/29/17 Page 5 of 23 1 5. Parties must file answers, counterclaims, crossclaims, and replies within the 2 time set forth in Rule 12(a)(1)-(3) even if they have filed or intend to file a motion to 3 dismiss or other preliminary motion. The Court may defer the time for filing such 4 pleadings, for good cause, while it considers a motion to dismiss based on lack of 5 subject-matter jurisdiction, lack of personal jurisdiction, sovereign immunity, or absolute 6 or qualified immunity of a public official. In that event, the time to answer, 7 counterclaim, crossclaim, or reply shall be set by the Court in its order deciding the 8 motion, and the time to serve responses to the mandatory initial discovery under 9 paragraph 6 shall be measured from that date. If the Court fails to set a time in its order, 10 the time to respond shall be measured from the date established by Rule 12(a)(4). 11 6. A party seeking affirmative relief must serve its responses to the mandatory 12 initial discovery no later than 30 days after the first pleading filed in response to its 13 complaint, counterclaim, crossclaim, or third-party complaint. A party filing a 14 responsive pleading, whether or not it also seeks affirmative relief, must serve its initial 15 discovery responses no later than 30 days after it files its responsive pleading. However, 16 (a) no initial discovery responses need be served if the Court approves a written 17 stipulation by the parties that no discovery will be conducted in the case; and (b) initial 18 discovery responses may be deferred, one time, for 30 days if the parties jointly certify to 19 the Court that they are seeking to settle the case and have a good faith belief that it will 20 be resolved within 30 days of the due date for their responses. 21 7. Unless the Court orders otherwise, initial responses and later supplements 22 shall not be filed with the Court, but Parties shall file a notice of service of their initial 23 responses and later supplements. 24 8. The duty to provide mandatory initial discovery responses set forth in this 25 order is a continuing duty, and each party must serve supplemental responses when new 26 or additional information is discovered or revealed. A party must serve such 27 supplemental responses in a timely manner, but in any event no later than 30 days after 28 the information is discovered by or revealed to the party. The Court normally will set a-3-Case 2:17-cv-01806-SPL Document 19-1 Filed 06/29/17 Page 6 of 23 1 deadline in its Rule 16(b) case management order for final supplementation of responses, 2 and full and complete supplementation must occur by the deadline. If the Court fails to 3 set a deadline, final supplementation must occur by the fact discovery deadline set by the 4 Court in its case management order. If new information is revealed in a written discovery 5 response or a deposition in a manner that reasonably informs all parties of the 6 information, the information need not be presented in a supplemental response. 7 9. Parties should include in the Rule 26(f) report to the Court a description of 8 their discussions of the mandatory initial discovery responses. The report should 9 describe the resolution of any limitations invoked by any party in its response, as well as 10 any unresolved limitations or other discovery issues. The parties shall attach the initial 11 and supplemental responses and any other discovery requests, objections, and responses 12 involved in any unresolved limitations or discovery issues. During the Rule 26(f) 13 conference, parties should discuss the mandatory initial discovery responses and seek to 14 resolve any limitations they have made or intend to make. 15 10. Production of information under this General Order does not constitute an 16 admission that information is relevant, authentic, or admissible. 17 11. Rule 37(b)(2) shall apply to mandatory discovery responses required by this 18 order. 19 B. Mandatory Initial Discovery Requests. 20 The parties must respond to the following Court-issued discovery requests without 21 awaiting discovery requests from the opposing parties, and at the times set forth above. 22 1. State the names and, if known, the addresses and telephone numbers of all 23 persons who you believe are likely to have discoverable information relevant to any 24 party’s claims or defenses, and provide a fair description of the nature of the information 25 each such person is believed to possess. 26 2. State the names and, if known, the addresses and telephone numbers of all 27 persons who you believe have given written or recorded statements relevant to any 28 party’s claims or defenses. Unless you assert a privilege or work product protection-4-Case 2:17-cv-01806-SPL Document 19-1 Filed 06/29/17 Page 7 of 23 1 against disclosure under applicable law, attach a copy of each such statement if it is in 2 your possession, custody, or control. If not in your possession, custody, or control, state 3 the name and, if known, the address and telephone number of each person who you 4 believe has custody of a copy. 5 3. List the documents, electronically stored information ("ESI"), tangible 6 things, land, or other property known by you to exist, whether or not in your possession, 7 custody or control, that you believe may be relevant to any party’s claims or defenses. 8 To the extent the volume of any such materials makes listing them individually 9 impracticable, you may group similar documents or ESI into categories and describe the 10 specific categories with particularity. Include in your response the names and, if known, 11 the addresses and telephone numbers of the custodians of the documents, ESI, or tangible 12 things, land, or other property that are not in your possession, custody, or control. For 13 documents and tangible things in your possession, custody, or control, you may produce 14 them with your response, or make them available for inspection on the date of the 15 response, instead of listing them. Production of ESI will occur in accordance with 16 paragraph C.2 below. 17 4. For each of your claims or defenses, state the facts relevant to it and the 18 legal theories upon which it is based. 19 5. Provide a computation of each category of damages claimed by you, and a 20 description of the documents or other evidentiary material on which it is based, including 21 materials bearing on the nature and extent of the injuries suffered. You may produce the 22 documents or other evidentiary materials with your response instead of describing them. 23 6. Specifically identify and describe any insurance or other agreement under 24 which an insurance business or other person or entity may be liable to satisfy all or part 25 of a possible judgment in the action or to indemnify or reimburse a party for payments 26 made by the party to satisfy the judgment. You may produce a copy of the agreement 27 with your response instead of describing it. 28-5-Case 2:17-cv-01806-SPL Document 19-1 Filed 06/29/17 Page 8 of 23 1 7. A party receiving the list described in Paragraph 3, the description of 2 materials identified in Paragraph 5, or a description of agreements referred to in 3 Paragraph 6 may request more detailed or thorough responses to these mandatory 4 discovery requests if it believes the responses are deficient. A party may also serve 5 requests pursuant to Rule 34 to inspect, copy, test, or sample any or all of the listed or 6 described items, to the extent not already produced in response to these mandatory 7 discovery requests, or to enter onto designated land or other property identified or 8 described. 9 C. Disclosure of Hard-Copy Documents and ESI. 10 1. Hard-Copy Documents. Hard-copy documents must be produced as they 11 are kept in the usual course of business. 12 2. Electronically Stored Information (ESI). 13 a. Duty to Confer. When the existence of ESI is disclosed or 14 discovered, the parties must promptly confer and attempt to agree on 15 matters relating to its disclosure and production, including: 16 i. requirements and limits on the preservation, disclosure, and 17 production of ESI; 18 ii. appropriate ESI searches, including custodians and search 19 terms, or other use of technology assisted review; and 20 iii. the form in which the ESI will be produced. 21 b. Resolution of Disputes. If the parties are unable to resolve any 22 dispute regarding ESI and seek resolution from the Court, they must present 23 the dispute in a single joint motion or, if the Court directs, in a conference 24 call with the Court. Any joint motion must include the parties’ positions 25 and the separate certification of counsel required under Rule 26(g). 26 c. Production of ESI. Unless the Court orders otherwise, a party must 27 produce the ESI identified under paragraph B.3 within 40 days after serving 28 its initial response. Absent good cause, no party need produce ESI in more-6-Case 2:17-cv-01806-SPL Document 19-1 Filed 06/29/17 Page 9 of 23 1 than one form. 2 d. Presumptive Form of Production. Unless the parties agree or the 3 Court orders otherwise, a party must produce ESI in the form requested by 4 the receiving party. If the receiving party does not specify a form, the 5 producing party may produce the ESI in any reasonably usable form that 6 will enable the receiving party to have the same ability to access, search, 7 and display the ESI as the producing party. 8 DATED this 14th day of April, 2017. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28-7-Case 2:17-cv-01806-SPL Document 19-1 Filed 06/29/17 Page 10 of 23 MANDATORY INITIAL DISCOVERY PILOT PROJECT CHECKLIST  Applicability of the MIDP Project General Order: o Is this a civil case filed prior to May 1, 2017? o Is the proceeding exempt from initial disclosure under Rule 26(a)(1)(B)? o Is this an action under the Private Securities Litigation Reform Act? o Was the case transferred for consolidation by the MDL panel?  If the answer is'yes’ to any of these questions, the case is not subject to the MIDP.  Rule 26(f) Conference: o The parties must discuss the mandatory initial discovery responses, which probably will have been made by the time of the conference, and seek to resolve any disagreements on the scope of their responses. o The parties should include a description of their discussions, including resolved and unresolved disagreements or other discovery issues, in their Rule 26(f) report to the Court.  Parties must file the Rule 26(f) report in the CM/ECF system using the Rule 26(f) Report re MIDP event under the "MIDP Filings" category.  Responsive Pleadings [answer/counterclaim/crossclaim/reply]: o Must be filed within the time set in Rule 12(a)(1)(A), (B), and (C). Exception: The Court may defer the responsive pleading deadline for good cause if a party files a motion to dismiss based on lack of subject-matter jurisdiction, lack of personal jurisdiction, sovereign immunity, or absolute immunity or qualified immunity of a public official.  Initial Discovery Responses: o Party seeking affirmative relief: must serve its initial discovery responses and file a notice of service with the Court within 30 days after the first responsive pleading filed in response to its complaint, counterclaim, crossclaim, or third-party complaint.  Parties must file the notice of service in the CM/ECF system using the Notice of Service of Mandatory Initial Discovery Responses event under the "MIDP Filings" category. 1 o Party filing a responsive pleading: must serve its initial discovery responses and file a notice of service with the Court within 30 days after it files its responsive pleading.  Parties must file the notice of service in the CM/ECF system using the Notice of Service of Mandatory Initial Discovery Responses event under the "MIDP Filings" category. Exceptions: No discovery responses required if the Court approves a written stipulation by the parties that no discovery will be conducted in the case. Deadline for serving initial discovery responses may be deferred once for 30 days if the parties jointly certify to the Court that they are seeking to settle the case and have a good faith belief that it will be resolved within 30 days of the due date for their responses. If the Court deferred the responsive pleading deadline based on the filing of one of the qualifying motions to dismiss, initial discovery responses are due 30 days after the responsive pleading deadline set by the Court upon entry of its order deciding the motion or 30 days after the date set by Rule 12(a)(4) if the Court does not set a pleading deadline. o Initial responses and later supplements will not be filed with the Court on the date they are served, but a notice of service must be filed with the Court.  Parties must file the notice of service for initial responses in the CM/ECF system using the Notice of Service of Mandatory Initial Discovery Responses event under the "MIDP Filings" category.  Parties must file the notice of service for supplements in the CM/ECF system using the Notice of Service of Supplemental Mandatory Initial Discovery Responses event under the "MIDP Filings" category. Exception: Parties must file initial responses and later supplements with their 26(f) report or discovery dispute filings if there is an unresolved dispute regarding the responses or supplements that the Court must resolve. o Responses must be signed by the party, under oath, and by counsel under Rule 26(g). o Limitations to scope of initial response asserted by the parties:  If based on a claim of privilege or work product, the party must produce a privilege log under Rule 26(b)(5). 2 Case 2:17-cv-01806-SPL Document 19-1 Filed 06/29/17 Page 12 of 23 Exception: No privilege log required if the parties agree or the Court orders otherwise.  If based on any other objection, the party’s response must explain with particularity the nature of the objection and provide a fair description of the information withheld.  Electronically Stored Information (ESI): o If the existence of ESI is disclosed or discovered, the parties must confer and address the issues listed in ¶ (C)(2)(a)(i)-(iii) of the General Order. o The party must produce its ESI within 40 days after serving its initial response (unless modified by the court).  ESI must be produced in the form requested by the receiving party, or if no form is specified, in any reasonable form that will enable the receiving party to access, search, and display the ESI.  Rule 16 Conference and Case Management Order: o Rule 16 conference should be held within the time specified in Rule 16(b)(2) (as soon as possible but not later than the earlier of 90 days after any party has been served or 60 days after appearance by any party). o Case management order should set deadline for final supplementation of responses.  If the Court fails to set a deadline, final supplementation must occur by the fact discovery deadline set by the Court in its case management order.  Supplemental Responses: o Must be served in a timely manner, and no later than 30 days after the information is discovered or revealed. If new information is revealed in a written discovery response or a deposition in a manner that reasonably informs all parties of the information, the information need not be presented in a supplemental response. A notice of service must be filed when a supplemental response is served. 3 Case 2:17-cv-01806-SPL Document 19-1 Filed 06/29/17 Page 13 of 23 Mandatory Initial Discovery Users’ Manual for the District of Arizona A. Introduction 1. The Judicial Conference of the United States has authorized a Mandatory Initial Discovery Pilot (MIDP) project to test the use of robust mandatory initial discovery as a means of reducing cost and delay in civil litigation. Various District Courts, including this one, have agreed to participate in the MIDP. The MIDP will begin on May 1, 2017, and will run for a period of three years. 2. The MIDP can be described in a nutshell as follows: (a) The MIDP requires responses to mandatory initial discovery in all civil cases other than those exempted by General Order 17-08 – the order that implements the MIDP. (b) The mandatory discovery is framed as court-ordered discovery that must be responded to before the commencement of broader discovery under Rules 26, 30, 31, 33, 34, 35, 36. (c) The mandatory initial discovery replaces the initial disclosures otherwise required by Rule 26(a)(1). (d) The parties may not opt out of the requirement to provide the mandatory discovery responses. (e) The requirement to provide mandatory initial discovery responses includes both favorable and unfavorable information that is relevant to the claims and defenses in the case. This includes claims and defenses asserted by all parties to the litigation, and a responding party must provide relevant information regardless of whether it intends to use the information in presenting its claims or defenses. (f) Parties must file with the Court a Notice of Service of their initial responses and later supplements, but not the responses or supplements themselves. If there is an unresolved dispute regarding the responses, parties must provide the Court with the responses or supplements at issue to enable the Court to resolve the dispute; (g) The Court will discuss the mandatory initial discovery with the parties during the case management conference under Rule 16(b)(2), and resolve any disputes regarding compliance with the required discovery; and (h) MIDP courts will vigorously enforce the requirement to provide mandatory initial discovery responses through the imposition of sanctions if appropriate under the Federal Rules of Civil Procedure. These features will be described in more detail below, with commentary designed to improve understanding of the MIDP’s requirements and to anticipate and address issues that may confront participating courts and parties. 1 Case 2:17-cv-01806-SPL Document 19-1 Filed 06/29/17 Page 14 of 23 B. Scope of the Mandatory Initial Discovery Pilot 1. Mandatory initial discovery responses are required for all cases other than (a) those exempted from initial disclosures by Rule 26(a)(1)(B); (b) cases transferred for consolidated administration in the District by the Judicial Panel on Multidistrict Litigation; and (c) actions under the Private Securities Litigation Reform Act ("PSLRA"). Comments: The value of the MIDP as a means of reducing cost and delay depends significantly on its application across a wide range of federal civil litigation. Consequently, few exceptions to its application have been allowed. 2. Mandatory initial discovery responses may be excused or deferred in two circumstances. First, no responses are required if the Court approves a written stipulation by the parties that no discovery will be conducted in the case. Second, responses may be deferred once, for 30 days, if the parties jointly certify to the Court that they are seeking to settle their dispute and have a good-faith belief that the dispute will be resolved within 30 days of the due date for their responses. Comments: The MIDP is designed to have very few exceptions. Other than these two exceptions, and the postponement of discovery responses that may be granted in the case of certain motions to dismiss (as discussed below), Courts should not excuse parties from their obligation to provide timely discovery responses under the MIDP. C. Key Features of the MIDP 1. The MIDP has the following key features: (a) It is implemented by General Order 17-08, which requires the parties to provide the mandatory discovery responses before initiating any further discovery. (b) The responses must be based on information reasonably available to the parties as of the time they are made, and must be timely supplemented as additional relevant information becomes available. (c) Responses to the mandatory initial discovery must be signed under oath by the parties, certifying that they are complete and correct as of the time they are made based on the parties’ knowledge, information, and belief formed after reasonable inquiry. If a party is represented by counsel, its attorney must also sign the responses, thereby making the certifications required by Rule 26(g). (d) Responses to the mandatory initial discovery must disclose both favorable and unfavorable information that is relevant to the claims and defenses in the case, regardless of whether a party intends to use the information when presenting its claims or defenses. Where a party limits its response to 2 mandatory discovery on the basis of privilege or work product, a privilege log is required unless the Court orders otherwise. Further, if a party objects to providing relevant information, including an objection that providing the required information would involve disproportionate expense or burden, it must provide particularized information regarding the nature of the objection and its basis, and fairly describe the information being withheld. Comments: 1. The General Order is framed as court-ordered discovery that is designed to accelerate the disclosure of relevant information that would be produced later in the litigation in response to traditional discovery requests. The requirement that all responses include information relevant to the claims and defenses in the case, rather than being limited to information the party intends to use in support of its claims or defenses, is a significant change from Rule 26(a). Both lawyers and their clients may instinctively react negatively to it. However, responses to traditional discovery requests under Rules 26, 30, 31, 33, 34, and 36 are not limited to information that the responding party may use to support a claim or defense, and neither is it permissible to object to this mandatory initial discovery on the ground that it is harmful rather than helpful to the responding party. The MIDP is premised on the idea that the goals of Rule 1 are promoted through the early sharing of information that normally would be provided only through more costly party-initiated discovery. Parties will be able to better evaluate the strengths and weaknesses of their positions. Early case assessment, perhaps with the assistance or a neutral mediator, may lead to early resolution of matters before incurring additional legal fees. It is expected that there may be uncertainty in some cases over identification of information that is relevant and helpful to an opposing party’s claim or defenses, or relevant and unhelpful to a producing party’s claim or defenses. Mandatory initial discovery is no different in this respect than responses to party-initiated discovery. The Court and the parties should have a meaningful discussion to minimize such uncertainty, and to obtain the Court’s assistance where appropriate to eliminate later sanctions demands because of a failure to comply with the mandatory initial discovery obligations. The goal is to promote justice, reduce costs, and increase speed in the fair resolution of claims, not create disputes over compliance with the mandatory discovery obligations. Communication with the Court and cooperation among counsel are essential and expected. 3 In addition, the MIDP was designed and adopted in part as a result of experience in States and the Canadian judicial system that have successfully required substantial mandatory disclosures. It has been reported that lawyers and their clients manage this obligation faithfully, at first because of the consequences of failing to do so and eventually because of a change in culture among litigation practitioners. 2. The requirement of a privilege log is drawn from Rule 26(b)(5), but the General Order allows the parties to "agree otherwise." In certain cases, such as those in which voluminous ESI must be produced in an accelerated fashion pursuant to the General Order, creation of a privilege log may become more onerous if it must be completed within the same timetable as production of the information itself. The General Order allows the parties to negotiate a different timetable for the exchange of privilege logs, and to reach other agreements to reduce the work required to assemble the logs such as excluding certain categories of documents or identifying the basis of objections by category of documents. If the parties are unable to agree, the Court retains discretion to order a different timetable or other mechanisms for reducing burden. 3. Because mandatory initial discovery responses are required by a court order, parties may wonder whether objections to the discovery are permitted. The answer is yes. Objections may be stated on the same basis and subject to the same limitations as objections to party-initiated discovery requests, but the General Order makes clear that conclusory, boilerplate objections are not proper. Particularized information regarding the nature of the objection and its legal basis must be provided. In addition, a "fair description" of what is being withheld must be provided. A "fair description" is one that provides sufficient information for the party receiving the responses to understand the categories of information being withheld and to enable an informed decision about whether to take further steps to compel production of the information notwithstanding the objection. (e) To maximize the effectiveness of mandatory initial discovery, responses must address all the claims or defenses that will be raised by the parties. Accordingly, parties must file answers, counterclaims, crossclaims and replies within the time required by the rules of procedure. The parties must do so even if they file a motion to dismiss, unless the motion is based on lack of subject matter jurisdiction, lack of personal jurisdiction, sovereign immunity, or absolute or qualified immunity, and the Court agrees to defer filings of pleadings for good cause. If the Court does not grant the motion to dismiss, it will set the time to answer, counterclaim, crossclaim, or reply, and the time for responding to the mandatory 4 disclosures will be measured from that date unless the Court sets an earlier date. If the Court does not set a time, Rule 12(a)(4) will control. Comments: The requirement that an answer must be filed even when a party intends to file a motion to dismiss or other preliminary motion is intended to provide a basis for the parties and the Court to identify the issues in dispute, and thus facilitate early mandatory initial discovery of the information relevant to a claim or a defense. The only exceptions to this requirement that the Court, in its discretion, may permit are cases in which a party is moving to dismiss based on lack of subject matter or personal jurisdiction, sovereign immunity, or the absolute or qualified immunity of a public official. These exceptions are purposely narrow to eliminate an incentive to file meritless motions to avoid prompt compliance with the General Order’s requirements. Other motions to dismiss may be filed, but do not defer the time to answer, counterclaim, crossclaim or reply. (f) Mandatory initial discovery responses must be made within the following deadlines: (i) a party seeking affirmative relief must serve its responses within 30 days after the filing of the first pleading made in response to its complaint, counterclaim, crossclaim, or third party complaint; and (ii) a party filing a responsive pleading (whether or not it includes a claim for affirmative relief) must serve its mandatory initial discovery responses within 30 days after filing its responsive pleading. There are two exceptions to this requirement. First, no mandatory initial discovery responses are required if the Court approves a written stipulation by the parties that no discovery will be conducted in the case. Second, mandatory initial discovery responses may be deferred one time, for 30 days, if the parties jointly certify to the Court that they are seeking to settle the case and have a good faith belief that it will be resolved within 30 days of the date when their responses are due. Comments: There may be instances in which a party is required to serve more than one set of mandatory discovery responses. For example, a plaintiff must serve responses within 30 days after the filing of the first pleading filed in response to its complaint. If additional defendants are later joined or file later answers, the plaintiff will be required to serve a supplemental response based on issues raised by the later-filed answers. (g) Judges should monitor the parties’ mandatory initial discovery responses and act promptly to resolve any disputes. The General Order requires the parties to file a Notice of Service of their initial responses and later supplements, but not to file the responses themselves, unless there is an unresolved dispute that the Court must resolve. If there is such an 5 unresolved dispute, parties must provide the Court with the responses, objections, and any other information needed by the Court to resolve the dispute. Comments: The success of the MIDP depends significantly on early and active case management by the Court. One key component of the Court’s case management role is to avoid delays that could result from disagreements not resolved by the parties. The parties are required to discuss their responses to the mandatory discovery at the initial meeting of counsel under Rule 26(f), including any objections they have stated or intend to state, and to attempt in good faith to resolve those objections. Unresolved objections should become a key topic for discussion with the Court at the initial case management conference under Rule 16(b). Ideally, the Court will resolve those objections at the case management conference; if the Court is unable to do that because additional information or briefing is essential, it should still resolve the disputes on an expedited basis. (h) The General Order imposes on the parties a continuing duty of disclosure, and mandatory initial discovery responses must be supplemented when new or additional information is discovered or revealed. Supplemental responses must be served in a timely manner, but not later than 30 days after the information is discovered or revealed to the party. A supplemental response is not required if, after general discovery begins, new information is revealed in a written discovery response or a deposition in a manner that reasonably informs all parties of the information. The Court should normally set a deadline for final supplementation in its Rule 16(b) case management order, and full and complete supplementation must occur by that deadline. If the Court does not set such a deadline, full and complete supplementation must occur by the deadline for fact discovery set by the Court. If a party fails to make or supplement a mandatory initial discovery response, the party may not use the information or witness to supply evidence on a motion, at a hearing, or at trial, unless the Court determines that such use would be appropriate under Rule 37(b)(2). Under Rule 37(b)(2), the Court may order other sanctions in addition to or instead of excluding evidence, as discussed more fully below. Comments: Some courts do not hold a single "final pretrial conference" but may instead conduct a series of conferences. Courts that follow such a practice should set a specific date for final supplementation, with the goal of ensuring that it occurs in time for the parties to use the supplemental information in preparing the joint pretrial order. 6 There may be instances in which, after the deadline for final supplementation, new or additional information is discovered or revealed that would have required supplementation if the information had come to light before the deadline. A party who wishes to make the supplementation because the new information is helpful to that party may serve the supplemental response after the deadline and, absent agreement by all parties, must seek leave of court to use the information. A party who discovers information after the deadline for final supplementation that may be helpful to an opposing party should serve a supplemental response pertaining to that information. The opposing party may at its election be allowed to use the information to support or oppose a motion, at a hearing, or at trial, without further action by the Court. Courts should remember that the effectiveness of the MIDP will depend significantly on the willingness of judges to impose real consequences on parties who fail to comply with their mandatory discovery obligations. (i) The parties are expected to discuss mandatory initial discovery when they meet and confer as required by Rule 26(f). During the conference, they must seek to resolve any disagreements over the scope of discovery. The parties should include in their Rule 26(f) report to the Court a summary of their discussions, describe the resolution of any disagreements, and identify any unresolved disputes or other discovery issues. During the Rule 16(b) scheduling conference the Court should resolve any disputes regarding the mandatory initial discovery responses. Judges participating in the MIDP should also make themselves available for prompt resolution of discovery disputes. It is recommended that the MIDP judges require the parties to contact the Court for a pre-motion conference as provided by Rule 16(b)(3)(B)(v) before filing discovery motions. Comments: As explained previously, prompt resolution of disputes over the mandatory initial discovery responses is essential to the success of the MIDP. A party’s unresolved objections that exist as of the time of the initial pretrial conference under Rule 16(b) should be resolved at the conference. Disputes that arise thereafter should also be resolved promptly, as should discovery disputes that arise outside the mandatory discovery process. The pre-motion conference referred under Rule 16(b)(3)(B) is only one of the ways in which expense and delay can be avoided. Many disputes can be resolved without briefing at pre-motion phone conferences, and even when briefing is required, the Court should consider limiting written argument to short letters or focused briefs. 7 Case 2:17-cv-01806-SPL Document 19-1 Filed 06/29/17 Page 20 of 23 D. Information Required by Mandatory Initial Discovery The General Order identifies the responses the parties are required to provide under the MIDP. They include: 1. The identity of persons likely to have discoverable information relevant to any party’s claims or defenses, their contact information, and a fair description of the nature of the information they possess. 2. The names, and contact information, of all persons believed to have given written or recorded statements relevant to any party’s claims or defenses. Unless a party asserts privilege or work product protection against this disclosure (the details of which should be disclosed adequately in a privilege log, unless the parties agree or the Court orders otherwise), a copy of each disclosed statement should be attached if it is in the party’s possession, custody, or control. If not, then the responding party should state the name and, if known, the address and telephone number of each person believed to have custody of a copy. 3. A list of the documents, electronically stored information ("ESI"), tangible things, land, or other property known by each party to exist that is relevant to any party’s claims or defenses. This information is required regardless of whether the documents or ESI are in the possession, custody, or control of the responding party. When the volume of such materials makes it impracticable to list them individually, the responding party may list similar documents or ESI by categories, describing each category with particularity. If the information required is not in the responding party’s possession, custody, or control, the response should state the names and addresses, if known, of the person having possession, custody, or control. A party that has possession, custody, or control of the documents, ESI, or tangible things required to be identified by this mandatory disclosure may elect to produce it with their response, or to make it available for inspection on the date of the response, instead of listing them. Production of ESI will occur as required by paragraph (C)(2) of the General Order. MIDP judges should take care to ensure that the descriptions are sufficiently detailed to be meaningful, and that when production or inspection is elected in lieu of description, it actually can take place beginning on the date of the response, and not at some indefinite time in the future. 4. A statement of the facts relevant to each claim or defense raised by the responding party, and the legal theories upon which each is based. 5. A computation of each category of damages claimed by the responding party, and a description of the documents or other evidentiary material on which it is based, including materials bearing on the nature and extent of the injuries suffered. A party may produce the documents or other evidentiary materials with its response instead of describing them. 6. The identify and a particularized description of any insurance or other agreement under which an insurance business or other person or entity may be liable to satisfy all or part of a possible judgment in the action, or to indemnify or reimburse a party for payments made by the party to satisfy the judgment. A 8 Case 2:17-cv-01806-SPL Document 19-1 Filed 06/29/17 Page 21 of 23 party may produce a copy of the agreement with its response instead of describing it. A party receiving the list described in paragraph 3 of the General Order, the description of materials identified in paragraph 5, or a description of agreements referred to in paragraph 6, may request from the responding party a more detailed or thorough response if it believes the responses are deficient. MIDP judges called on to resolve disputes regarding the sufficiency of a response to the mandatory discovery requests should take care to ensure that responses are sufficiently detailed to be meaningful, are complete and unevasive, but should not require a level of particularity that would impose on the responding party disproportionate burden or expense, considering the needs of the case. Comments: The information required in paragraph 1 above, as well as the descriptions of relevant documents discussed in paragraphs 3 and 5 and the statement of relevant facts required in paragraph 4, must all provide sufficient detail to be meaningful and must not be evasive or incomplete. At the same time, the disclosures need not be so detailed that they would impose on the responding party disproportionate burden or expense, considering the needs of the case. There is no formula for deciding where the line must be drawn. Rules 1 and 26(b)(1) provide the Court and the parties with the performance standard, but the facts unique to each case will control the scope of the disclosures. Parties that follow the "Golden Rule" should have no difficulty making reasonableness determinations that are consistent with Rule 1 and Rule 26(b)(1) and the aims of the MIDP. A party also may serve requests pursuant to Rule 34 to inspect, copy, test, or sample any or all of the listed or described items to the extent that they have not already been produced in a mandatory discovery response, or to enter onto designated land or other property identified or described. Production of information under the General Order does not constitute an admission that the information is relevant, authentic, or admissible. E. Requirement for Disclosure of Hard-Copy Documents and ESI: The production of hard-copy documents and ESI required by mandatory initial discovery can present challenging issues for the parties. The General Order seeks to minimize those issues by providing specific guidance to the Court and the parties. 1. Hard-copy documents must be produced as they are kept in a party’s usual course of business. 2. Disclosure of ESI: (a) Duty to Confer: When a mandatory initial discovery response reveals the existence of ESI, the parties must promptly confer and attempt to reach 9 Case 2:17-cv-01806-SPL Document 19-1 Filed 06/29/17 Page 22 of 23 agreement relating to its disclosure and production. This includes: requirements and limits on the preservation, disclosure, and production of ESI; the appropriate means to search for ESI, including identification of the custodians from whom production will be obtained; search terms to be used, or other use of technology or computer assisted review; and the form in which ESI will be produced. (b) Resolution of Disputes: If the parties are unable to resolve any dispute regarding the disclosure of ESI, and seek resolution from the Court, they must present the dispute in a single joint motion, or, if the Court directs, in a conference call with the Court. Any joint motion must include the parties’ positions and the separate certification of counsel required under Rule 26(g). The Court should decide the dispute promptly to avoid delay in the timely completion of the mandatory discovery. (c) Production of ESI: Unless the Court orders otherwise, a party must produce ESI identified under paragraph (B)(3) of the General Order within 40 days after serving its initial response. Absent good cause, no party need produce ESI in more than one form. Unless the parties agree or the Court orders otherwise, a party must produce ESI in the form requested by the receiving party. If the receiving party does not specify a form, the producing party may produce ESI in any reasonably usable form that will enable the receiving party to have the same ability to access, search, and display the ESI as the producing party. F. Sanctions for Failure to Comply. If parties fail to comply with their mandatory discovery obligations, the Court may impose sanctions. Rule 37(b)(2) provides the most relevant sanctions provision. It specifies sanctions that may be imposed "For Not Obeying a Discovery Order" – in this case, the General Order. Rule 37(b)(2) provides a range of possible sanctions, but the most relevant when a party attempts to use evidence it did not disclose in its mandatory discovery responses will be Rule 37(b)(2)(A)(ii), which authorizes the Court to prohibit the disobedient party from using the evidence it failed to disclose. When a party failed to disclose unfavorable information and the opposing party was required to incur litigation costs to obtain it, the Court may impose those costs on the disobedient party under Rule 37(b)(2)(C). Rule 37(b)(2) provides more severe sanctions when a party’s failure to comply with the General Order is particularly egregious. MIDP judges should tailor the sanctions to fit the offense, with the intent of encouraging future good faith compliance with the General Order and the MIDP. The experience in States that have adopted robust initial disclosure requirements has shown that diligent enforcement by judges is the key to achieving the goals of the MIDP – the reduction of unnecessary delay and expense during discovery, and promoting the just, speedy and inexpensive resolution of civil disputes. 10 Case 2:17-cv-01806-SPL Document 19-1 Filed 06/29/17 Page 23 of 23 G. Final Instructions for MIDP Judges: 1. MIDP judges should hold initial case management conferences under Rule 16(b) within the time specified in Rule 16(b)(2). Judges should discuss with the parties their compliance with the mandatory discovery obligations set forth in the General Order, resolve any disputes, and set a date for full and complete supplementation of responses. It is difficult to overestimate the importance of this initial case management meeting with the parties. It enables the MIDP judge to set the tone for the rest of the case, impress upon the parties the importance of compliance with the mandatory initial discovery obligations, and clearly establish that the MIDP judge intends to enforce those obligations vigorously. 2. MIDP judges should make themselves available for prompt resolution of disputes regarding the mandatory initial discovery and other discovery. They are encouraged to require the parties to contact the Court for a pre-motion conference, as provided by Rule 16(b)(3)(B)(v), before filing discovery motions, and to resolve any disputes during that conference if possible. If discovery motions are necessary, they should be focused, briefed quickly (usually on a schedule set by the Court during the pre-motion conference), and resolved promptly. 11

ORDER SETTING RULE 16 CASE MANAGEMENT CONFERENCE: A Rule 16 Case Management Conference is set for 8/2/2017 at 10:00 AM in Courtroom 501, 401 West Washington Street, Phoenix, AZ 85003 before Judge Steven P Logan. Signed by Judge Steven P. Logan on 6/29/17.

Case 2:17-cv-01806-SPL Document 20 Filed 06/29/17 Page 1 of 6 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8) Kangaroo Manufacturing, Inc., No. CV-17-01806-PHX-SPL 9)) Plaintiff,) ORDER SETTING RULE 16 10) vs. CASE MANAGEMENT CONFERENCE 11)) Amazon.com, Inc.,) 12) 13 Defendant.)) 14) 15 Pursuant to Rule 16 of the Federal Rules of Civil Procedure, 16 IT IS ORDERED: 17 I. Case Management Conference 18 A Case Management Conference is set for August 2, 2017 at 10:00 a.m., before 19 the Honorable Judge Steven P. Logan, United States District Judge, in Courtroom 501, 20 Sandra Day O’Connor United States Courthouse, 401 West Washington Street, Phoenix, 21 Arizona 85003. Counsel who will be responsible for trial of the lawsuit for each party, 22 and any party that is not represented by counsel, shall appear and participate in the Case 23 Management Conference and shall have authority to enter into stipulations regarding all 24 matters that may be discussed. 25 II. Rule 26(f) Meeting 26 The parties are directed to meet and confer no later than fourteen (14) days prior 27 to the Case Management Conference as required by Rule 26(f) of the Federal Rules of 28 Civil Procedure. It is the responsibility of Plaintiff to initiate the Rule 26(f) Meeting, and Case 2:17-cv-01806-SPL Document 20 Filed 06/29/17 Page 2 of 6 1 Defendant shall promptly and cooperatively participate in the Rule 26(f) Meeting. 2 At the Rule 26(f) Meeting, the parties shall jointly develop and file with the Clerk 3 of Court no later than July 24, 2017, each of the following in the form outlined below: 4 (1) a Joint Rule 26(f) Case Management Report, and (2) a Joint Proposed Rule 16 Case 5 Management Order. Requests to continue the Case Management Conference or 6 outstanding motions will not excuse the requirement to participate in a Rule 26(f) 7 meeting and to submit the parties’ joint report and proposed order. 8 III. Joint Rule 26(f) Case Management Report 9 The parties’ Joint Rule 26(f) Case Management Report shall contain the following 10 information in separately numbered paragraphs: 11 1. Attendance: The parties who attended the Rule 26(f) Meeting and assisted in 12 developing the parties’ joint submissions; 13 2. Service: The parties, if any, which have not been served and an explanation 14 of why they have not been served, and any parties which have been served but have not 15 answered or otherwise appeared; 16 3. Nature of Case: The nature of the case, including a brief description – three 17 (3) pages or less-of the principal factual disputes and legal basis of all claims and 18 defenses; 19 4. Jurisdiction: The jurisdictional basis for the case, citing specific statutes. If 20 jurisdiction is based on diversity of citizenship, the report shall include a statement of the 21 citizenship of every party and a description of the amount in dispute;1 22 5. Additions and Amendments: Whether any party expects to add additional 23 1 The parties are reminded that (1) a corporation is a citizen of the state where it is 24 incorporated and the state of its principal place of business, and (2) partnerships and limited liability companies are citizens of every state in which one of their partners or 25 members resides. See 28 U.S.C. § 1332(c); Hertz Corp. v. Friend, 559 U.S. 77, 80, 92-93 (2010); Indus. Tectonics v. Aero Alloy, 912 F.2d 1090, 1092 (9th Cir. 1990); Johnson v. 26 Columbia Properties Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006). The parties are further reminded that the use of fictitious parties (e.g., "John Doe" or "ABC 27 Corporation") "casts no magical spell on a complaint otherwise lacking in diversity jurisdiction." Fifty Assocs. v. Prudential Ins. Co. of Am., 446 F.2d 1187, 1191 (9th Cir. 28 1970) (citations omitted). 2 Case 2:17-cv-01806-SPL Document 20 Filed 06/29/17 Page 3 of 6 1 parties to the case or otherwise amend the pleadings; 2 6. Forthcoming Motions: A listing of contemplated motions and a statement of 3 the issues to be decided by these motions; 4 7. Related Cases: The status of related cases pending before other courts or 5 other judges of this District; 6 8. Mandatory Initial Discovery Pilot Project ("MIDP"):2 7 MIDP Certification: Certification that each party has received and reviewed 8 both the Preliminary Order issued in this case and the Attachments to that Order which 9 concern the MIDP; 10 MIDP Compliance: The parties’ compliance to date with the MIDP, 11 including whether the parties have exchanged their MIDP Responses; 12 MIDP Issues and Disputes: Any issues that have arisen under the MIDP and 13 a description of those issues. If the parties seek assistance of the Court in resolving a 14 dispute with regard to MIDP Responses, the parties shall include a statement of the 15 dispute they wish the Court to resolve, and attach copies of the disputed disclosures to the 16 report; 17 9. Discovery Limitations: Suggested changes, if any, in the limitations on 18 discovery (including depositions) imposed by the Federal Rules of Civil Procedure and a 19 discussion of why such changes are proportional to the needs of this case; 20 10. Electronically Stored Information: Any issues relating to preservation, 21 disclosure, or discovery of electronically stored information, including the parties’ 22 preservation of electronically stored information and the form or forms in which it will be 23 produced; 24 11. Request for Jury Trial: Whether a jury trial has been requested and whether 25 2 This case is subject to the MIDP. The General Order, as well as a Notice, 26 Checklist, and Users’ Manual are attached to this Court’s Preliminary Order, and may also be found online at the District of Arizona’s Website or the Federal Judicial Center’s 27 Website. It is the responsibility of the parties to carefully read the Court’s Preliminary Order and the materials attached to it to ensure familiarity and full compliance with the 28 requirements of the MIDP. 3 Case 2:17-cv-01806-SPL Document 20 Filed 06/29/17 Page 4 of 6 1 the request for a jury trial is contested. If the request for a jury trial is contested, the 2 parties shall set forth the reasons why a trial by jury is in dispute; 3 12. Trial: The estimated date that the case will be ready for trial, the estimated 4 length of trial, and any suggestions for shortening the trial; 5 13. Expedited Trial Alternative: Certification that counsel for each party has 6 discussed with his or her client, or each pro se litigant has considered, the expedited trial 7 alternative;3 8 14. Consent to Magistrate Judge: Whether the parties consent to the transfer of 9 the case to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c); 10 15. Settlement: The prospects for settlement, and whether the case is suitable for 11 referral to a United States Magistrate Judge for the purpose of holding a settlement 12 conference, or whether the case is suitable for an alternative method of dispute resolution; 13 16. Modified Procedures: Suggested modification of pretrial procedures due to 14 the nature of the case, for example: 15 ERISA Action: If the parties jointly agree to resolve an action brought 16 pursuant to the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et 17 seq., through cross briefing, in lieu of filing the attached Joint Proposed Rule 16 Case 18 Management Order, the parties shall propose a deadline for each of the following: 19 (a) Initial disclosures; 20 (b) Completion of disclosure of materials that either party contends should 21 be considered as part of the record on review; 22 (c) Filing of the Administrative Record; 23 (d) Filing of Plaintiff’s Opening Brief; 24 3 Expedited Trial Alternative: The parties may elect to take this case directly to trial, whether jury or bench trial. An expedited trial will be held in this case if all parties agree 25 to such a trial. If the parties elect to proceed to an expedited trial, no formal discovery or motion practice will occur and a Final Pretrial Conference will be scheduled. Counsel for 26 each party must discuss this expedited trial alternative with his or her client. As part of this discussion, counsel must provide his or her client with two good faith estimates of 27 the costs (including attorneys’ fees) of litigating this case to completion: (1) an estimate of the cost if an expedited trial is elected, and (2) an estimate of the cost if an expedited 28 trial is not elected and typical discovery and motion practice occur. 4 Case 2:17-cv-01806-SPL Document 20 Filed 06/29/17 Page 5 of 6 1 (e) Filing of Defendant’s Response Brief; 2 (f) Filing of Plaintiff’s Reply Brief; and 3 (g) Completion of Good Faith Settlement Talks; 4 Class Action: If either party is presenting their case as a class action, the 5 parties shall propose a deadline for each of the following: 6 (a) Completion of class certification discovery; 7 (b) Filing of any motion for class certification and responsive briefing; 8 (c) Filing of any motion for class decertification and responsive briefing; 9 Patent Action: If either party believes a hearing pursuant to Markman v. 10 Westview Instruments, Inc., 517 U.S. 370 (1996) will be necessary, the parties shall 11 propose a deadline for each of the following: 12 (a) Disclosure of asserted claims and infringement contentions; 13 (b) Exchange of proposed claim constructions; 14 (c) Filing of joint claim construction statement; 15 (d) Disclosure of experts intended to be used at the Markman hearing; 16 (e) Filing of Opening Claim Construction Brief; 17 (f) Filing of Responsive Claim Construction Brief; and 18 17. Additional Matters: Any other matters that will aid the Court and parties in 19 resolving this case in a just, speedy, and inexpensive manner. 20 IV. Joint Proposed Rule 16 Case Management Order 21 A fillable Joint Proposed Rule 16 Case Management Order has been attached to 22 this Order. The parties shall carefully review, complete, and file the attached Order, 23 providing the specific dates jointly proposed by the parties for the following deadlines 24 (where indicated): amendment of pleadings and joining parties; MIDP responses; 25 production of ESI; completion of discovery; completion of expert disclosures; completion 26 of expert depositions; filing of dispositive motions; and completion of good faith 27 settlement talks. If the parties are unable to agree regarding specific deadlines, both 28 5 Case 2:17-cv-01806-SPL Document 20 Filed 06/29/17 Page 6 of 6 1 proposed dates shall be included in the proposed order.4 2 Dated this 29th day of June, 2017. 3 4 Honorable Steven P. Logan United States District Judge 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 4 Example: "Dispositive motions shall be filed no later than 1/1/18 (Plaintiffs), 28 1/2/18 (Defendants)." 6

Proposed Case Management Order)(CLB

Case 2:17-cv-01806-SPL Document 20-1 Filed 06/29/17 Page 1 of 8 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8,) No. CV-,) 9) Plaintiff(s),) RULE 16 10 vs.) CASE MANAGEMENT ORDER) 11),) 12) Defendant(s).) 13)) 14 15 The parties have met and prepared a Joint Rule 26(f) Case Management Report 16 and a Joint Proposed Rule 16 Case Management Order. On the basis of the parties’ 17 submissions, and the Court’s considered assessment of the time necessary to complete 18 discovery and all pretrial submissions, 19 IT IS ORDERED: 20 I. Governing Rules and Preliminary Order 21 Both counsel and pro se litigants must abide by the Local Rules of Civil Procedure 22 ("LRCiv" or "Local Rules"), Rules of Practice of the U.S. District Court for the District 23 of Arizona, and the Federal Rules of Civil Procedure. 24 The Court’s Preliminary Order and its Attachments (Doc. #) are incorporated by 25 reference and remain in effect. To any extent the Preliminary Order differs from this 26 Order, this Order shall govern. 27 II. Joining Parties and Amending Pleadings 28 The deadline for joining parties, amending pleadings, and filing supplemental Case 2:17-cv-01806-SPL Document 20-1 Filed 06/29/17 Page 2 of 8 1 pleadings is from the date of this Order. 2 Any motion for leave to amend or notice of amendment must be filed in 3 accordance with Rule 15.1 of the Local Rules of Civil Procedure. Any motion or notice 4 that does not comply with the local and federal rules may be stricken by the Court. 5 III. Discovery 6 Mandatory Initial Discovery Pilot Project ("MIDP"): This case is subject to the 7 MIDP. Each party has certified that it has received and carefully reviewed the Court’s 8 Preliminary Order and the materials attached to it to ensure familiarity and full 9 compliance with the requirements of the MIDP.1 10 Mandatory Initial Discovery Responses ("MIDP Responses"): MIDP 11 Responses were exchanged on-or-shall be exchanged no later than. 12 Unless the Court orders otherwise, the parties shall file with the Clerk of Court a notice 13 of service of initial responses, rather than copies of the actual disclosures. 14 Supplemental MIDP Responses: Supplemental MIDP Response shall be served 15 on the opposing party no later than thirty (30) days after the information is discovered or 16 revealed. Unless the Court orders otherwise, the parties shall file with the Clerk of Court 17 a notice of service of supplemental responses, rather than copies of the actual disclosures. 18 Electronically Stored Information ("ESI"): ESI identified in the MIDP 19 Responses was produced – or shall be produced to the opposing party no later than 20. 21 Discovery Deadline: Following service of MIDP Responses, broader discovery 22 under Federal Rules of Civil Procedure 26, 30, 31, 33, 34, 36, and 45 may commence. All 23 discovery, including supplementation of MIDP Responses, must be completed on or 24 before.2 25 1 The General Order, as well as a Notice, Checklist, and Users’ Manual are attached to this Court’s Preliminary Order, and may also be found online at the District of 26 Arizona’s Website or the Federal Judicial Center’s Website. 27 2 This supersedes the "30 days before trial" disclosure deadline. See Fed. R. Civ. P. 26(a)(3). The discovery deadline concludes the time to propound discovery, the time to 28 answer all propounded discovery, the time to supplement disclosures and discovery, the 2 Case 2:17-cv-01806-SPL Document 20-1 Filed 06/29/17 Page 3 of 8 1 Written Discovery Limitations: Each side may propound up to 25 2 interrogatories, including subparts. The parties are also limited to 25 requests for 3 production of documents, including subparts, and 25 requests for admissions, including 4 subparts. All interrogatories, requests for production of documents, and requests for 5 admissions shall be served at least forty-five (45) days before the discovery deadline.3 6 Responses to discovery requests must be stated with specificity; general or 7 boilerplate objections are not permitted. If a party objects to providing relevant 8 information, including an objection that providing the required information would 9 involve disproportionate expense or burden, it must provide particularized information 10 regarding the nature of the objection and its basis, and fairly describe the information 11 being withheld. Where a party limits its response on the basis of privilege or work 12 product, a privilege log is required unless the Court orders otherwise. 13 Fact Depositions: All depositions shall be scheduled to commence at least five (5) 14 working days prior to the discovery deadline. A deposition commenced five (5) days 15 prior to the deadline may continue up until the deadline, as necessary. Depositions shall 16 be limited to seven hours each as provided in Rule 30(d)(1) of the Federal Rules of Civil 17 Procedure. 18 Expert Disclosures: The parties shall provide full and complete expert disclosures 19 as required by Rule 26(a)(2)(A)-(C) of the Federal Rules of Civil Procedure no later than 20. Rebuttal expert disclosures, if any, shall be made no later than 21. Rebuttal experts shall be limited to responding to opinions stated 22 by initial experts. Absent truly extraordinary circumstances, parties will not be permitted 23 to supplement their expert reports after these dates. 24 time for discovery by subpoena, the time for the Court to resolve all discovery disputes, and the time to complete any final discovery necessitated by the Court’s ruling on any 25 discovery disputes. 26 3 The parties may mutually agree in writing, without Court approval, to increase the discovery limitations or extend the time provided for discovery responses in Rules 33, 34, 27 and 36 of the Federal Rules of Civil Procedure. Such agreed-upon increases or extensions, however, shall not alter or extend the discovery deadlines set forth in this 28 Order. 3 Case 2:17-cv-01806-SPL Document 20-1 Filed 06/29/17 Page 4 of 8 1 Expert Depositions: Expert depositions shall be completed no later than 2. Expert depositions shall be scheduled to commence at least five (5) 3 working days before the deadline. 4 Discovery Disputes: Discovery disputes are strongly discouraged. Parties shall 5 not present any discovery dispute without first seeking to resolve the matter through 6 personal consultation and sincere effort as required by LRCiv 7.2(j). In the event the 7 parties cannot reach a resolution, they may jointly request assistance by contacting the 8 Court to request a hearing on the dispute; the parties shall not file written discovery 9 motions without leave of Court. The Court will seek to resolve the dispute during the 10 hearing, and may enter appropriate orders on the basis of the hearing or may order written 11 briefing. If the Court orders written submissions, the parties shall include a statement 12 certifying that counsel could not satisfactorily resolve the matter after personal 13 consultation and sincere efforts to do so in accordance with Local Rule 7.2(j). 14 Absent extraordinary circumstances, the Court will not entertain fact discovery 15 disputes after the deadline for completion of fact discovery, and will not entertain expert 16 discovery disputes after the deadline for completion of expert discovery. 17 Protective Orders: As a general practice, this Court does not approve or adopt 18 blanket, umbrella protective orders or confidentiality agreements, even when stipulated to 19 by the parties. Further, the fact that the parties have designated materials or information 20 as confidential pursuant to an agreement or stipulation does not mean that the Court will 21 order that the filings containing such information be placed under seal. In the event 22 discovery mandates disclosure of specific, harmful, confidential material, the Court will 23 entertain a request for a protective order at that time if it is tailored to protect the 24 particular interests at hand in accordance with Rule 26(c) of the Federal Rules of Civil 25 Procedure. Any party wishing to seal a record or document and shield it from public view 26 must prove why the interest in secrecy outweighs the presumption of public access to 27 judicial records and documents. 28 4 Case 2:17-cv-01806-SPL Document 20-1 Filed 06/29/17 Page 5 of 8 1 IV. Motions 2 Dispositive Motion Deadline: Dispositive motions shall be filed no later than 3. The Court emphasizes that it has a strict policy that, absent 4 extraordinary circumstances, the dispositive motion deadline will not be extended beyond 5 the two-year anniversary of the date of commencement of an action, and the proposed 6 deadlines should be devised cautiously. 7 Pre-Motion Conferral: Any motion made pursuant to Federal Rule of Civil 8 Procedure 12 is discouraged if the challenged defect in the pleading can be cured by 9 filing an amended pleading. The Court therefore requires: (1) conferral-the parties must 10 confer prior to filing a motion to dismiss for failure to state a claim or counterclaim 11 pursuant to Rule 12(b)(6), or a motion for judgment on the pleadings on a claim or 12 counterclaim pursuant to Rule 12(c), to determine whether such motion can be avoided; 13 and (2) certification-a certificate of conferral must be attached to any motion indicating 14 that the movant notified the opposing party of the issues asserted in its motion, the parties 15 conferred (either in person, by telephone, or in writing) but were unable to agree that the 16 pleading was curable in any part by a permissible amendment offered by the pleading 17 party. Any motion lacking an attached compliant certificate may be summarily stricken 18 by the Court. 19 The parties must also confer prior to filing any motion pursuant to Federal Rule of 20 Civil Procedure 56. In doing so, the parties shall exchange a two-page statement 21 describing any anticipated motion for summary judgment and response, identifying the 22 issues and claims on which summary judgment will be sought and the basis for the 23 motions and response. The purpose of conferral should be aimed at streamlining the 24 issues in dispute, and dispensing of statements of fact. A certificate of conferral must be 25 attached to any motion for summary judgment. Any motion lacking an attached 26 compliant certificate may be summarily stricken by the Court. 27 Motion Limitations: No party shall file more than one motion for summary 28 judgment under Rule 56 of the Federal Rules of Civil Procedure without leave of Court. 5 Case 2:17-cv-01806-SPL Document 20-1 Filed 06/29/17 Page 6 of 8 1 Statements of Fact: Statements of Fact ("SOF") required by Local Rule 56.1 shall 2 not exceed ten (10) pages in length, exclusive of exhibits. Electronic copies of SOF shall 3 be emailed to the opposing party and to chambers in Microsoft Word® format at 4 Logan_Chambers@azd.uscourts.gov. Any Controverting SOF, as set forth in Local Rule 5 56.1(b), shall include the entirety of the SOF in each responsive paragraph. Additional 6 SOF shall continue in numerical sequence. 7 V. Settlement Discussions 8 All parties and their counsel shall meet in person and engage in good faith 9 settlement talks no later than. Upon completion of such settlement 10 talks, and in no event later than five (5) working days after the deadline for settlement 11 talks, the parties shall file with the Court a joint report on settlement talks executed by or 12 on behalf of all counsel. The report shall inform the Court that good faith settlement talks 13 have been held and shall report on the outcome of such talks. The parties shall indicate 14 whether assistance from the Court is needed in seeking settlement of the case. The parties 15 shall promptly notify the Court at any time when settlement is reached during the course 16 of this litigation. 17 VI. Final Pretrial Conference 18 If no dispositive motions are pending before the Court after the dispositive motion 19 deadline has passed, the parties shall jointly file and serve a "Notice of Readiness for 20 Final Pretrial Conference" within seven (7) days of the dispositive motion deadline. If a 21 dispositive motion is pending before the Court following the dispositive motion deadline, 22 the parties shall jointly file and serve a "Notice of Readiness for Final Pretrial 23 Conference" within seven (7) days of the resolution of the dispositive motion. Following 24 the filing of the Notice, the Court will issue an Order Setting Final Pretrial Conference 25 that: (1) sets deadlines for briefing motions in limine; (2) includes a form for the 26 completion of the parties’ joint proposed Final Pretrial Order; and (3) otherwise instructs 27 the parties concerning their duties in preparing for the Final Pretrial Conference. A firm 28 trial date will be set at the Final Pretrial Conference. 6 Case 2:17-cv-01806-SPL Document 20-1 Filed 06/29/17 Page 7 of 8 1 VII. Additional Guidelines 2 Communication with the Court: As a general matter, all communications with 3 the Court should be made on the record. Telephone calls regarding routine administrative 4 matters in civil cases should be directed to this Court’s Judicial Assistant at (602) 322-5 7550. Telephone calls regarding criminal cases should be directed to this Court’s 6 Courtroom Deputy at (602) 322-7235. Direct communications with law clerks is 7 prohibited. No member of chambers staff will provide the parties with legal advice 8 concerning any matter. 9 Oral Argument and Evidentiary Hearings: This Court does not have a preset 10 schedule for setting oral arguments and evidentiary hearings. The Court will schedule 11 oral arguments and evidentiary hearings when warranted and advise the parties 12 accordingly. Any party desiring oral argument should request it by noting it below the 13 title of the related filing, see LRCiv 7.2(f); such requests should be made in instances 14 where it would assist the resolution of the motion, and not merely made as a matter of 15 course. Any party desiring an evidentiary hearing should request it in the body of its 16 filing. Separate motions or requests for oral argument or evidentiary hearings are subject 17 to being stricken or may be modified on the docket to a notice. 18 PDF Text Searchable Format: All electronic filings must be filed in a PDF text 19 searchable format in accordance with LRCiv 7.1(c). 20 Copies: A paper copy of any document exceeding ten (10) pages in length shall be 21 submitted to chambers promptly following its electronic filing. Paper copies of 22 documents which are too large for stapling must be submitted in a three-ring binder. 23 Electronic copies of proposed orders or findings shall be emailed to chambers in 24 Microsoft Word® format at Logan_Chambers@azd.uscourts.gov. 25 Font: All memoranda filed with the Court must comply with Local Rule of Civil 26 Procedure 7.1(b) requiring 13 point font in text and footnotes. 27 Citations: Citations in support of any assertion in the text shall be included in the 28 text, not in footnotes. 7 Case 2:17-cv-01806-SPL Document 20-1 Filed 06/29/17 Page 8 of 8 1 VIII. Final Advisals 2 Noncompliance: The parties are specifically admonished that failure to prosecute, 3 to comply with court orders, or to comply with the local and federal rules may result in 4 dismissal of all or part of this case, imposition of sanctions, or summary disposition of 5 matters pending before the Court. See Fed. R. Civ. P. 41; LRCiv 7.2 ("[i]f a motion does 6 not conform in all substantial respects with the requirements of [the Local Rules], or if 7 the opposing party does not serve and file the required answering memoranda… such 8 noncompliance may be deemed a consent to the denial or granting of the motion and the 9 Court may dispose of the motion summarily"). 10 Deadline Extensions: The parties are advised that the Court intends to enforce 11 the deadlines and guidelines set forth in this Order, and they should plan their litigation 12 activities accordingly. Even if all parties stipulate to an extension, the Court will not 13 extend the deadlines absent good cause to do so. As a general matter, the pendency of 14 settlement discussions or the desire to schedule mediation does not constitute good cause. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8

NOTICE re: Notice of Service by Kangaroo Manufacturing Incorporated re: {{19}} Order re Rule 12(b) Motions.

Case 2:17-cv-01806-SPL Document 21 Filed 07/03/17 Page 1 of 2 1 FENNEMORE CRAIG, P.C. Ray K. Harris (No. 007408) 2 2394 East Camelback Road, Suite 600 Phoenix, AZ 85016-3429 3 Telephone: (602) 916-5000 Email: aabdo@fclaw.com 4 Email: rharris@fclaw.com 5 Attorneys for Plaintiff Kangaroo Manufacturing, Inc. 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE DISTRICT OF ARIZONA 10 No. CV-17-1806-PHX-SPL Kangaroo Manufacturing, Inc., a 11 Florida corporation Plaintiff, NOTICE OF SERVICE 12 13 v. 14 Amazon.com, Inc., a Delaware corporation 15 Defendant. 16 17 Plaintiff Kangaroo Manufacturing, Inc. hereby submits this Notice that it has on 18 this date served upon Defendant Amazon.com, Inc., via email and U.S. Mail, the Court’s 19 Preliminary Order. 20 DATED this 3rd day of July, 2017. 21 FENNEMORE CRAIG, P.C. 22 23 By:/s/Ray K. Harris Ray K. Harris 24 Attorneys for Plaintiff 25 26 FENNEMORE CRAIG, P.C. PHOENI X 13028019.1/045374.0001 Case 2:17-cv-01806-SPL Document 21 Filed 07/03/17 Page 2 of 2 1 CERTIFICATE OF SERVICE 2 I hereby certify that on July 3, 2017, I electronically transmitted the attached 3 document to the Clerk’s Office using CM/ECF System for filing with a copy mailed and 4 emailed to: 5 James E Geringer Klarquist Sparkman LLP 6 121 SW Salmon St., Suite 1600 Portland OR 97204 7 james.geringer@klarquist.com Attorney for Defendant Amazon.com, Inc. 8 9/s/Vicki L. Morgan An employee of Fennemore Craig, PC 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 FENNEMORE CRAIG, P.C. PHOENI X 13028019.1/045374.0001-2-

ANSWER to {{1}} Complaint with Jury Demand by Amazon.com Incorporated.

Case 2:17-cv-01806-SPL Document 23 Filed 07/25/17 Page 1 of 14 1 JAMES E. GERINGER (admitted pro hac vice) james.geringer@klarquist.com 2 KLARQUIST SPARKMAN, LLP 3 121 SW Salmon Street, Suite 1600 Portland, Oregon 97204 4 Telephone: (503) 595-5300 5 Facsimile: (503) 595-5301 6 Counsel for Defendant AMAZON.COM, INC. 7 IN THE UNITED STATES DISTRICT COURT 8 9 FOR THE DISTRICT OF ARIZONA 10 11 Kangaroo Manufacturing, Inc., Case No.: CV-17-1806-PHX-SPL 12 Plaintiff, ANSWER AND DEFENSES OF 13 v. DEFENDANT AMAZON.COM, INC. 14 Amazon.com, Inc., 15 DEMAND FOR JURY TRIAL 16 Defendant. 17 Defendant Amazon.com, Inc. ("Amazon") answers the Complaint of plaintiff Kan-18 19 garoo Manufacturing, Inc. ("Kangaroo") as follows: 20 1. Amazon lacks knowledge or information sufficient to form a belief as to the 21 truth of the allegations of paragraph 1 of the complaint. 22 2. Amazon admits that it is a Delaware corporation with a principle place of 23 24 business in Washington. 25 26 27 Case 2:17-cv-01806-SPL Document 23 Filed 07/25/17 Page 2 of 14 1 3. Amazon admits this Court has diversity subject matter jurisdiction over 2 plaintiff’s purported claims. Amazon denies any remaining allegations of paragraph 3 of 3 the complaint. 4 4. Amazon admits this Court has federal question subject matter jurisdiction 5 6 over plaintiff’s purported claims allegedly arising under 15 U.S.C. and 17 U.S.C. Amazon 7 denies any remaining allegations of paragraph 4 of the complaint. 8 5. Amazon denies the allegations in paragraph 5 of the complaint. Kangaroo 9 has stated that it asserts personal jurisdiction in this action under a theory of general juris-10 diction. Amazon denies that it is subject to general personal jurisdiction in Arizona, and 11 12 on that basis denies that venue is proper in this District. 13 6. Amazon lacks knowledge or information sufficient to form a belief as to the 14 truth of the allegations of paragraph 6 of the complaint. 15 7. Amazon lacks knowledge or information sufficient to form a belief as to the 16 17 truth of the allegations of paragraph 7 of the complaint. 18 8. Amazon admits that it offers services which allow many different entities to 19 advertise and sell products on the Amazon.com website. Amazon lacks knowledge or in-20 formation sufficient to form a belief as to the truth of any remaining allegations of para-21 22 graph 8 of the complaint. 23 9. Amazon denies the allegations in paragraph 9 of the complaint. 24 10. Amazon denies the allegations in paragraph 10 of the complaint. 25 26 27 2 Case 2:17-cv-01806-SPL Document 23 Filed 07/25/17 Page 3 of 14 1 11. Amazon admits that many products listed on the Amazon.com website are 2 displayed using dynamically generated web pages which may include images, price infor-3 mation, descriptive text, customer reviews, order options, hyperlinks, and other infor-4 mation. Amazon lacks knowledge or information sufficient to form a belief as to the truth 5 6 of any remaining allegations of this paragraph of the complaint. 7 12. Amazon admits that, for many products, multiple sellers can list the product 8 for sale on the Amazon.com website. Amazon lacks knowledge or information sufficient 9 to form a belief as to the truth of any remaining allegations of this paragraph of the com-10 plaint. 11 12 13. Amazon admits that "ASIN" is an acronym that stands for Amazon Standard 13 Identification Number ("ASIN"), a ten character alphanumeric product identifier. Amazon 14 denies the remaining allegations of this paragraph of the complaint. 15 14. Amazon lacks knowledge or information sufficient to form a belief as to the 16 17 truth of any remaining allegations of this paragraph of the complaint. 18 15. Amazon admits it offers services using the phrase "Fulfillment by Amazon," 19 (sometimes abbreviated "FBA"), which helps participating sellers to ship their products, 20 and that FBA services use Amazon Fulfillment Centers. Amazon lacks knowledge or in-21 22 formation sufficient to form a belief as to the truth of any remaining allegations of this 23 paragraph of the complaint. 24 16. Amazon admits it has Fulfillment Centers in Arizona. Amazon denies the 25 allegations in paragraph 16 of the complaint. 26 27 17. Amazon denies the allegations in paragraph 17 of the complaint. 3 Case 2:17-cv-01806-SPL Document 23 Filed 07/25/17 Page 4 of 14 1 18. Amazon lacks knowledge or information sufficient to form a belief as to the 2 truth of the allegations of paragraph 18 of the complaint. 3 19. Amazon lacks knowledge or information sufficient to form a belief as to the 4 truth of the allegations of paragraph 19 of the complaint. 5 6 20. Amazon admits that the FBA service uses physical data such as product 7 weight and dimensions, but lacks knowledge or information sufficient to form a belief as 8 to the truth of any allegations that may be made in paragraph 20 of the complaint. 9 21. Amazon denies the allegations in paragraph 21 of the complaint. 10 22. Amazon understands this paragraph to allege that Amazon owes some kind 11 12 of obligation to Kangaroo in relation to "proper storage and fulfillment fees." Based on 13 this understanding, Amazon denies the allegation of paragraph 22 of the complaint. Other-14 wise, Amazon lacks knowledge or information sufficient to form a belief as to the truth of 15 any allegations that may be made in paragraph 22 of the complaint. 16 17 23. Amazon lacks knowledge or information sufficient to form a belief as to the 18 truth of any allegations that may be made in paragraph 23 of the complaint. 19 24. Amazon believes that, for many sellers with Professional selling plans, Buy 20 Box placement can lead to increased sales. Amazon lacks knowledge or information suf-21 22 ficient to form a belief as to the truth of any remaining allegations that may be made in 23 paragraph 24 of the complaint. 24 25. Amazon denies any allegations of paragraph 25 of the complaint. 25 26. Amazon denies any allegations of paragraph 26 of the complaint. 26 27 27. Amazon denies the allegations of paragraph 27 of the complaint. 4 Case 2:17-cv-01806-SPL Document 23 Filed 07/25/17 Page 5 of 14 1 28. Amazon denies the allegations in paragraph 28 of the complaint. 2 29. Amazon lacks knowledge or information sufficient to form a belief as to the 3 truth of the allegations of paragraph 29 of the complaint. 4 30. Amazon denies the allegations in paragraph 30 of the complaint. 5 6 31. Amazon denies the allegations in paragraph 31 of the complaint. 7 32. Amazon denies the allegations in paragraph 32 of the complaint. 8 33. Amazon has an anti-counterfeiting policy. The sale on the Amazon.com 9 website of counterfeit products, including any products that have been illegally replicated, 10 reproduced, or manufactured, is strictly prohibited, and Amazon has never knowingly al-11 12 lowed any third party to sell counterfeit products on the Amazon.com website. Amazon 13 denies having sold any products in any manner that infringes any rights of plaintiff. Am-14 azon lacks knowledge or information sufficient to form a belief as to the truth of any re-15 maining allegations that may be made in paragraph 33 of the complaint. 16 17 34. Amazon admits that under procedures implementing its anti-counterfeiting 18 policy it may receive reports of alleged counterfeits, and may remove related listings or 19 take other actions. Amazon lacks knowledge or information sufficient to form a belief as 20 to the truth of any remaining allegations that may be made in paragraph 34 of the complaint. 21 22 35. Amazon denies the allegations in paragraph 35 of the complaint. 23 36. Amazon denies the allegations in paragraph 36 of the complaint. 24 37. Amazon denies the allegations in paragraph 37 of the complaint. 25 38. Amazon lacks knowledge or information sufficient to form a belief as to the 26 27 truth of the allegations of paragraph 38 of the complaint. 5 Case 2:17-cv-01806-SPL Document 23 Filed 07/25/17 Page 6 of 14 1 39. Amazon lacks knowledge or information sufficient to form a belief as to the 2 truth of the allegations of paragraph 39 of the complaint. 3 40. Amazon lacks knowledge or information sufficient to form a belief as to the 4 truth of the allegations of paragraph 40 of the complaint. 5 6 41. Amazon denies the allegations in paragraph 41 of the complaint. 7 42. Amazon denies the allegations in paragraph 42 of the complaint. 8 43. Amazon denies the allegations in paragraph 43 of the complaint. 9 44. Amazon denies that it has committed any acts of infringement. 10 45. Amazon denies the allegations in paragraph 45 of the complaint. 11 12 46. Amazon denies the allegations in paragraph 46 of the complaint. 13 47. Amazon denies the allegations in paragraph 47 of the complaint. 14 48. Amazon denies the allegations in paragraph 48 of the complaint. 15 49. Amazon denies the allegations in paragraph 49 of the complaint. 16 17 50. Amazon denies the allegations in paragraph 50 of the complaint. 18 51. Amazon denies the allegations in paragraph 51 of the complaint. 19 52. Amazon denies the allegations in paragraph 52 of the complaint. 20 53. Amazon denies the allegations in paragraph 53 of the complaint. 21 22 54. Amazon incorporates its responses above, as though fully set forth here. 23 55. Amazon lacks knowledge or information sufficient to form a belief as to the 24 truth of the allegations of paragraph 55 of the complaint. 25 56. Amazon lacks knowledge or information sufficient to form a belief as to the 26 27 truth of the allegations of paragraph 56 of the complaint. 6 Case 2:17-cv-01806-SPL Document 23 Filed 07/25/17 Page 7 of 14 1 57. Amazon denies the allegations in paragraph 57 of the complaint. 2 58. Amazon lacks knowledge or information sufficient to form a belief as to the 3 truth of the allegations of paragraph 58 of the complaint. Amazon denies the remaining 4 allegations of paragraph 58 of the complaint. 5 6 59. Amazon denies the allegations of paragraph 59 of the complaint. 7 60. Amazon denies the allegations in paragraph 60 of the complaint. 8 61. Amazon denies the allegations in paragraph 61 of the complaint. 9 62. Amazon denies the allegations in paragraph 62 of the complaint. 10 63. Amazon denies the allegations in paragraph 63 of the complaint. 11 12 64. Amazon incorporates its responses above, as though fully set forth here. 13 65. Amazon lacks knowledge or information sufficient to form a belief as to the 14 truth of the allegations of paragraph 65 of the complaint. 15 66. Amazon denies the allegations of paragraph 66 of the complaint. 16 17 67. Amazon denies the allegations in paragraph 67 of the complaint. 18 68. Amazon lacks knowledge or information sufficient to form a belief as to the 19 truth of the allegations of paragraph 68 of the complaint. 20 69. Amazon lacks knowledge or information sufficient to form a belief as to the 21 22 truth of the allegations of paragraph 69 of the complaint. 23 70. Amazon denies the allegations in paragraph 70 of the complaint. 24 71. Amazon denies the allegations in paragraph 71 of the complaint. 25 72. Amazon denies the allegations in paragraph 72 of the complaint. 26 27 73. Amazon denies the allegations in paragraph 73 of the complaint. 7 Case 2:17-cv-01806-SPL Document 23 Filed 07/25/17 Page 8 of 14 1 74. Amazon denies the allegations in paragraph 74 of the complaint. 2 75. Amazon denies the allegations in paragraph 75 of the complaint. 3 76. Amazon incorporates its responses above, as though fully set forth here. 4 77. Amazon lacks knowledge or information sufficient to form a belief as to the 5 6 truth of the allegations of paragraph 77 of the complaint. 7 78. Amazon denies the allegations in paragraph 78 of the complaint. 8 79. Amazon denies the allegations in paragraph 79 of the complaint. 9 80. Amazon denies the allegations in paragraph 80 of the complaint. 10 81. Amazon denies the allegations in paragraph 81 of the complaint. 11 12 82. Amazon lacks knowledge or information sufficient to form a belief as to the 13 truth of the allegations of paragraph 82 of the complaint. 14 83. Amazon lacks knowledge or information sufficient to form a belief as to the 15 truth of the allegations of paragraph 83 of the complaint. 16 17 84. Amazon offers customers "A-to-z Guarantee Protection." When Amazon 18 customers buy from Marketplace sellers on the Amazon.com website, the condition of the 19 item, its timely delivery and certain additional refund conditions are guaranteed under the 20 "A-to-z Guarantee." Amazon lacks knowledge or information sufficient to form a belief 21 22 as to the truth of any remaining allegations of paragraph 84 of the complaint. 23 85. Amazon denies the allegation of paragraph 85 of the complaint. 24 86. Amazon denies the allegation of paragraph 86 of the complaint. 25 87. Amazon denies the allegations in paragraph 87 of the complaint. 26 27 88. Amazon denies the allegations in paragraph 88 of the complaint. 8 Case 2:17-cv-01806-SPL Document 23 Filed 07/25/17 Page 9 of 14 1 89. Amazon lacks knowledge or information sufficient to form a belief as to the 2 truth of the allegations of paragraph 89 of the complaint. 3 90. Amazon denies the allegations of paragraph 90 of the complaint. 4 91. Amazon denies the allegations in paragraph 91 of the complaint. 5 6 92. Amazon denies the allegations in paragraph 92 of the complaint. 7 93. Amazon lacks knowledge or information sufficient to form a belief as to the 8 truth of the allegations of paragraph 93 of the complaint. 9 94. Amazon denies the allegations in paragraph 94 of the complaint. 10 95. Amazon denies the allegations in paragraph 95 of the complaint. 11 12 96. Amazon denies the allegations of paragraph 96 of the complaint. 13 97. Amazon understands this paragraph to allege that Amazon "had a duty" of 14 some kind to Kangaroo in relation to "storage and fulfillment fees" involved in FBA ser-15 vices that Amazon has provided to others. Based on this understanding, Amazon denies 16 17 the allegations of paragraph 97 of the complaint. Otherwise, Amazon lacks knowledge or 18 information sufficient to form a belief as to the truth of any allegations that may be made 19 in paragraph 97 of the complaint. 20 98. Amazon denies the allegations in paragraph 98 of the complaint. 21 22 99. Amazon denies the allegations in paragraph 99 of the complaint. 23 100. Amazon denies the allegations in paragraph 100 of the complaint. 24 101. Amazon incorporates its responses above, as though fully set forth here. 25 102. Amazon denies the allegations in paragraph 102 of the complaint 26 27 103. Amazon denies the allegations in paragraph 103 of the complaint. 9 Case 2:17-cv-01806-SPL Document 23 Filed 07/25/17 Page 10 of 14 1 104. Amazon incorporates its responses above, as though fully set forth here. 2 105. Amazon denies the allegations in paragraph 105 of the complaint. 3 106. Amazon denies the allegations in paragraph 106 of the complaint. 4 107. Amazon denies the allegations in paragraph 107 of the complaint. 5 6 108. Amazon denies the allegations in paragraph 108 of the complaint. 7 109. Amazon denies the allegations in paragraph 109 of the complaint. 8 110. Amazon denies the allegations in paragraph 110 of the complaint. 9 111. Amazon denies the allegations in paragraph 111 of the complaint. 10 112. Amazon incorporates its responses above, as though fully set forth here. 11 12 113. Amazon denies it owes Kangaroo any obligation regarding Kangaroo’s sales 13 "expectation." Amazon lacks knowledge or information sufficient to form a belief as to 14 the truth of the remaining allegations of paragraph 113 of the complaint. 15 114. Amazon denies the allegations in paragraph 114 of the complaint. 16 17 115. Amazon denies the allegations in paragraph 115 of the complaint. 18 116. Amazon denies the allegations in paragraph 116 of the complaint. 19 117. Amazon denies the alleged "interference," and denies any other allegations 20 in paragraph 117 of the complaint. 21 22 118. Amazon denies the allegations in paragraph 118 of the complaint. 23 119. Amazon denies the allegations in paragraph 119 of the complaint. 24 GENERAL DENIAL 25 Except as expressly admitted herein, Amazon denies each and every allegation of 26 27 the complaint. 10 Case 2:17-cv-01806-SPL Document 23 Filed 07/25/17 Page 11 of 14 1 ADDITIONAL DEFENSES 2 Amazon alleges and asserts the following defenses in response to the allegations, 3 undertaking the burden of proof only as to those defenses deemed affirmative defenses 4 by law, regardless of how such defenses are denominated herein. In addition to the 5 6 additional defenses described below, subject to its responses above, Amazon specifi-7 cally reserves all rights to allege additional defenses that become known through the 8 course of discovery. 9 FIRST ADDITIONAL DEFENSE 10 (NO INFRINGEMENT) 11 1. Amazon does not infringe and has not infringed plaintiff’s trademarks or 12 copyrights. 13 14 SECOND ADDITIONAL DEFENSE (LACK OF STANDING) 15 2. Plaintiff has not asserted any relationship with Amazon conferring standing 16 17 to sue for alleged "negligence." 18 THIRD ADDITIONAL DEFENSE 19 (FAILURE TO STATE A CLAIM) 20 3. Plaintiff’s complaint and claims for relief fail to state a claim upon which 21 relief can be granted. 22 FOURTH ADDITIONAL DEFENSE 23 (FAILURE TO MITIGATE DAMAGES) 24 4. Plaintiff’s claims may be barred, in whole or in part, by its failure to mitigate 25 damages. 26 27 11 Case 2:17-cv-01806-SPL Document 23 Filed 07/25/17 Page 12 of 14 1 FIFTH ADDITIONAL DEFENSE (DMCA SAFE HARBOR) 2 5. Plaintiff’s alleged copyright claim is barred at least in part under the DMCA, 3 4 for reasons including but not limited to Plaintiff’s failure to provide any valid notice under 5 the DMCA, and/or by Amazon’s compliance with DMCA safe harbor provisions. 6 SIXTH ADDITIONAL DEFENSE 7 (CDA SAFE HARBOR) 8 6. One or more of Plaintiff’s claims may be barred, in whole or in part, by Sec-9 tion 230 of the Communications Decency Act. 10 SEVENTH ADDITIONAL DEFENSE 11 (PREEMPTION) 12 7. One or more of Plaintiff’s purported claims under state law are preempted by 13 14 federal law. 15 EIGHT ADDITIONAL DEFENSE (LACK OF GENERAL PERSONAL JURISDICTION) 16 17 8. Amazon is not subject to general personal jurisdiction in Arizona. As noted 18 above, this is the only basis for personal jurisdiction that Kangaroo appears to assert. 19 NINTH ADDITIONAL DEFENSE 20 (LICENSE) 21 9. On information and belief, one or more of Kangaroo’s "authorized sellers" 22 granted Amazon a license to use the alleged copyrighted works that those sellers provided 23 24 or made available to Amazon. 25 26 27 12 Case 2:17-cv-01806-SPL Document 23 Filed 07/25/17 Page 13 of 14 1 PRAYER FOR RELIEF 2 WHEREFORE, Amazon prays for the following relief: 3 A. A judgment dismissing plaintiff’s complaint in its entirety, with prejudice, 4 and finding that plaintiff recovers nothing thereon; 5 6 B. A judgment declaring that Amazon has not infringed the asserted trade-7 marks or copyrights; 8 C. That under 17 U.S.C. § 505 the Court award Amazon full costs and ex-9 penses of its defense of plaintiff’s copyright claim, including reasonable attorneys’ fees; 10 and 11 12 D. Such other and further relief as this Court may deem just and proper. 13 DEMAND FOR A JURY TRIAL 14 In accordance with Fed. R. Civ. P. 38(b), Amazon hereby demands a jury trial on 15 all issues so triable. 16 17 18 DATED this 25th day of July, 2017. 19 By: s/James E. Geringer 20 JAMES E. GERINGER (admitted pro hac vice) 21 james.geringer@klarquist.com 22 KLARQUIST SPARKMAN, LLP 121 SW Salmon Street, Suite 1600 23 Portland, Oregon 97204 24 Telephone: (503) 595-5300 Facsimile: (503) 595-5301 25 Counsel for Defendant 26 AMAZON.COM, INC. 27 13 Case 2:17-cv-01806-SPL Document 23 Filed 07/25/17 Page 14 of 14 1 CERTIFICATE OF SERVICE 2 I hereby certify that on July 25, 2017, I electronically transmitted the foregoing doc-3 ument to the Clerk’s Office using the CM/ECF System for filing and transmittal of a Notice 4 of Electronic Filing to the following CM/ECF registrants: 5 6 RAY K. HARRIS FENNEMORE CRAIG, P.C. 7 2394 East Camelback Road, Suite 600 Phoenix, AZ 85016-3429 8 Telephone: (602) 916-5000 9 Email: rharris@fclaw.com 10 s/James E. Geringer James E. Geringer 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 CERTIFICATE OF SERVICE

MINUTE ORDER: Supplemental Request for Copyright, Trademark, or Patent Information. This case has been designated as a copyright, trademark, or patent case. An answer, amended complaint, or other pleading {{23}} has been filed that may include additional trademarks, patents, or copyrights allegedly violated that were not previously included. Attached to this docket entry are the required form(s) that may need to be completed by the party who filed the above document.</br></br>If your recently filed pleading adds or changes information related to the original patents, trademarks, or copyright allegations, please complete the form that is applicable to this particular case. In some cases, you may need to complete both forms. Within seven (7) days, you must submit the required form(s) to the Clerk's Office. Please complete the form and file it with the Court using the specific event: Notice of Filing - Copyright, Trademark or Patent Information, found under the Other Filings header. Please DO NOT mail the form directly to the Patent or Copyright Office. The Clerk's Office will submit the form.</br></br>If there are no changes to the copyright, trademark, or patent information previously submitted for this case, then the party who filed the above document must file a Notice, within seven (7) days, indicating such using the specific event:Notice of Filing - Copyright, Trademark or Patent Information, found under the Other Filings header

Case 2:17-cv-01806-SPL Document 24 Filed 07/26/17 Page 1 of 2 AO 120 (Rev. 08/10) Mail Stop 8 REPORT ON THE TO: Director of the U.S. Patent and Trademark Office FILING OR DETERMINATION OF AN P.O. Box 1450 ACTION REGARDING A PATENT OR Alexandria, VA 22313-1450 TRADEMARK In Compliance with 35 U.S.C. § 290 and/or 15 U.S.C. § 1116 you are hereby advised that a court action has been filed in the U.S. District Court of Arizona on the following G Trademarks or G Patents. (G the patent action involves 35 U.S.C. § 292.): DOCKET NO. DATE FILED U.S. DISTRICT COURT of Arizona PLAINTIFF DEFENDANT PATENT OR DATE OF PATENT HOLDER OF PATENT OR TRADEMARK TRADEMARK NO. OR TRADEMARK 1 2 3 4 5 In the above—entitled case, the following patent(s)/trademark(s) have been included: DATE INCLUDED INCLUDED BY G Amendment G Answer G Cross Bill G Other Pleading PATENT OR DATE OF PATENT HOLDER OF PATENT OR TRADEMARK TRADEMARK NO. OR TRADEMARK 1 2 3 4 5 In the above—entitled case, the following decision has been rendered or judgement issued: DECISION/JUDGEMENT CLERK (BY) DEPUTY CLERK DATE Brian D. Karth Copy 1—Upon initiation of action, mail this copy to Director Copy 3—Upon termination of action, mail this copy to Director Copy 2—Upon filing document adding patent(s), mail this copy to Director Copy 4—Case file copy Print Save As... Reset Case 2:17-cv-01806-SPL Document 24 Filed 07/26/17 Page 2 of 2 O AO 121 (6/90) TO: Register of Copyrights REPORT ON THE Copyright Office FILING OR DETERMINATION OF AN Library of Congress ACTION OR APPEAL Washington, D.C. 20559 REGARDING A COPYRIGHT In compliance with the provisions of 17 U.S.C. 508, you are hereby advised that a court action or appeal has been filed on the following copyright(s): COURT NAME AND LOCATION G ACTION G APPEAL DOCKET NO. DATE FILED of Arizona PLAINTIFF DEFENDANT COPYRIGHT TITLE OF WORK AUTHOR OR WORK REGISTRATION NO. 1 2 3 4 5 In the above-entitled case, the following copyright(s) have been included: DATE INCLUDED INCLUDED BY G Amendment G Answer G Cross Bill G Other Pleading COPYRIGHT TITLE OF WORK AUTHOR OF WORK REGISTRATION NO. 1 2 3. In the above-entitled case, a final decision was rendered on the date entered below. A copy of the order or judgment together with the written opinion, if any, of the court is attached. COPY ATTACHED WRITTEN OPINION ATTACHED DATE RENDERED G Order G Judgment G Yes G No CLERK (BY) DEPUTY CLERK DATE Brian D. Karth 1) Upon initiation of action, 2) Upon filing of document adding copyright(s), 3) Upon termination of action, mail copy to Register of Copyrights mail copy to Register of Copyrights mail copy to Register of Copyrights DISTRIBUTION: 4) In the event of an appeal, forward copy to Appellate Court 5) Case File Copy Print Save As... Reset

ORDER that the Case Management Conference currently scheduled for August 2, 2017 is vacated. IT IS FURTHER ORDERED that Plaintiff must show cause in writing why this action should not be dismissed for failure to comply with this Courts Order and prosecute this action no later than July 28, 2017. Signed by Judge Steven P. Logan on 7/26/17.

Case 2:17-cv-01806-SPL Document 25 Filed 07/26/17 Page 1 of 1 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8) No. CV-17-01806-PHX-SPL Kangaroo Manufacturing, Inc., 9)) Plaintiff,) ORDER 10) vs. 11)) Amazon.com, Inc.,) 12) 13 Defendant.)) 14 15 Pursuant to the Court’s Order (Doc. 20) setting a Rule 16 Case Management 16 Conference, the parties were required to jointly develop and file a Joint Rule 26(f) Case 17 Management Report and a Joint Proposed Rule 16 Case Management Order no later than 18 July 24, 2017. To date, no joint filings have been filed. Accordingly, 19 IT IS ORDERED that the Case Management Conference currently scheduled for 20 August 2, 2017 is vacated. 21 IT IS FURTHER ORDERED that Plaintiff must show cause in writing why this 22 action should not be dismissed for failure to comply with this Court’s Order and 23 prosecute this action no later than July 28, 2017. 24 Dated this 26th day of July, 2017. 25 Honorable Steven P. Logan 26 United States District Judge 27 28

Rule 26(f) Report for Mandatory Initial Discovery Pilot (MIDP) Joint Rule 26(f) Case Management Report filed by Plaintiff Kangaroo Manufacturing Incorporated.

Case 2:17-cv-01806-SPL Document 26 Filed 07/26/17 Page 1 of 8 1 FENNEMORE CRAIG, P.C. Ray K. Harris (No. 007408) 2 2394 East Camelback Road, Suite 600 Phoenix, AZ 85016-3429 3 Telephone: (602) 916-5000 Email: aabdo@fclaw.com 4 Email: rharris@fclaw.com 5 Attorneys for Plaintiff Kangaroo Manufacturing, Inc. 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE DISTRICT OF ARIZONA 10 No. CV-17-1806-PHX-SPL Kangaroo Manufacturing, Inc., a 11 Florida corporation Plaintiff, JOINT RULE 26(f) CASE 12 MANAGEMENT REPORT 13 v. 14 Amazon.com, Inc., a Delaware corporation 15 Defendant. 16 17 Plaintiff Kangaroo Manufacturing, Inc. ("Plaintiff" or "Kangaroo") and Defendant 18 Amazon.com, Inc. ("Defendant" or "Amazon") hereby submit the following Joint Rule 19 26(f) Case Management Report. 20 1. Attendance. The following parties participated in the July 18, 2017 Rule 26(f) 21 telephonic meeting: 22 For Plaintiff: Ray Harris and Blake Atkinson of Fennemore Craig, P.C. 23 For Defendant: James Geringer of Klarquist Sparkman, LLP. 24 2. Service. All parties have been served. Defendant answered Plaintiff’s Complaint 25 on July 25, 2017. 26 3. Nature of Case: Plaintiff’s Claims. FENNEMORE CRAIG, P.C. PHOENI X 13093160.1/045374.0001 Case 2:17-cv-01806-SPL Document 26 Filed 07/26/17 Page 2 of 8 1 Trademark Infringement and Unfair Competition. Kangaroo manufactures 2 products sold on Amazon.com by Kangaroo’s authorized resellers. KANGAROO is a 3 registered US trademark used on Amazon Product Detail Pages ("PDPs") to sell 4 Kangaroo products. Authorized resellers and others, including Amazon itself, can offer 5 a Kangaroo product for sale on the PDP. 6 Direct Infringement. Amazon is selling counterfeits of at least 4 products: 7 • Emoji Universe Smiley Face Balloons, ASIN B01832S51C 8 • 12" Emoji Inflatable Beach Balls, ASIN B0182WBENE 9 • Kangaroo King’s Crown, ASIN B00O17SZ6Y 10 • Kangaroo Adjustable Adult Captain’s Yacht Cap, ASIN B00O18DY1O 11 These sales constitute trademark infringement under 15 U.S.C. § 1114, use of 12 counterfeit trademarks under 15 U.S.C. §1116(d)(1)(B), and unfair competition under 15 13 U.S.C. § 1125(a)(1)(A). 14 Indirect Infringement. Amazon failed to prevent counterfeiters from selling on 15 the Kangaroo PDPs despite its ability to do so. Indeed, Amazon has removed authorized 16 sellers in response to notice of counterfeiting from Kangaroo. Amazon derives a 17 financial benefit by selling Amazon Fulfillment Services to counterfeiters. 18 Copyright Infringement. Kangaroo owns copyrights in the product design and 19 images of the Emoji Beach Balls. By copying and displaying the copyrighted image and 20 design to sell counterfeits Amazon infringed Kangaroo’s copyrights. 17 U.S.C. § 501. 21 Negligence. Amazon has a duty to exercise reasonable care in administering 22 Kangaroo’s PDPs, enabling sales of genuine products and enforcing policies to prevent 23 counterfeit sales. Amazon breach its duty of care. As a result Kangaroo was damaged. 24 For example, Amazon reassigned Kangaroo’s Emoji Beach Balls PDP to a 25 competitor, Rhode Island Novelty Company ("RINCO"). Kangaroo and RINCO 26 separately advised Amazon in writing of this error, which Amazon did not promptly FENNEMORE CRAIG, P.C. PHOENI X 13093160.1/045374.0001-2-Case 2:17-cv-01806-SPL Document 26 Filed 07/26/17 Page 3 of 8 1 correct. This resulted in significant lost sales to Kangaroo and customer confusion. 2 Amazon breached its duty of reasonable care by failing to remove counterfeiters 3 and preventing sales by Kangaroo authorized resellers at the same time counterfeiters, 4 including Amazon itself, were selling popular products. This damaged Kangaroo. 5 Amazon has a policy of reimbursing purchasers who receive counterfeit product. 6 To keep counterfeits off the market, Kangaroo purchased counterfeit product and sought 7 reimbursement from Amazon. Upon information and belief, Amazon itself resold the 8 counterfeit products on Kangaroo’s PDP. This conduct damaged Kangaroo. 9 Tortious Interference with Prospective Contract. PDPs feature a "buy box" that 10 allows a customer to add items to their shopping cart or complete the purchase with a 11 single click. Under Amazon policy, the seller with the best performance metrics and 12 longest Amazon sales history is the default buy box seller. Controlling the buy box as 13 the default seller increases the sales of the default seller on the PDP. Amazon allowed 14 counterfeiters to control the Buy Box on Kangaroo PDPs, damaging Kangaroo in the 15 form of lost sales and injury to reputation (reducing Kangaroo’s source rating). 16 Unjust Enrichment. Upon information and belief, Amazon can reassign the buy 17 box if Amazon deems the default seller’s price "excessive." This reassignment forces 18 the seller to reduce the price or lose the benefit of the buy box. Amazon repeatedly 19 required Kangaroo’s authorized sellers to lower the sales price of Kangaroo’s products 20 to retain the PDP buy box. Amazon did not lower its own prices on popular products 21 despite requiring Kangaroo’s authorized sellers to lower their prices. Amazon also 22 overcharged for storage/fulfillment fees and received these fees from counterfeit sales. 23 Nature of Case: Amazon’s Defenses. 24 Amazon is continuing to review Plaintiff’s evolving allegations. At this early stage, 25 based on information available to date, Amazon’s defenses include (1) Kangaroo fails to 26 state a claim under its State law counts, both because Amazon does not owe Kangaroo FENNEMORE CRAIG, P.C. PHOENI X 13093160.1/045374.0001-3-Case 2:17-cv-01806-SPL Document 26 Filed 07/26/17 Page 4 of 8 1 the alleged common law duties, and because the Communications Decency Act protects 2 service providers such as Amazon from claims based on Amazon’s removal of listings 3 from the Amazon.com website when infringement is alleged. (2) Kangaroo also failed 4 to provide any notice prior to its complaint of the alleged infringement of copyrighted 5 photographs, as required under the Digital Millennium Copyright Act (DMCA). Those 6 photographs also appear to be the subject of a license granted to Amazon by a company 7 related to Kangaroo. (3) To the extent that Kangaroo’s State law counts in the 8 complaint are based solely on alleged copyright infringement, they are preempted. (4) 9 Kangaroo appears to be using the term "counterfeit" to include product for which 10 Kangaroo has not pled, much less demonstrated, any intellectual property interest. 11 4. Jurisdiction. Plaintiff’s statement: United States District Courts have original 12 jurisdiction for copyright infringement actions and concurrent jurisdiction for trademark 13 infringement. Kangaroo is a Florida corporation with its principle place of business in 14 Arizona. Amazon is a Delaware corporation with significant assets, including shipping 15 and fulfillment centers, in Arizona. Consequently, this Court has personal jurisdiction 16 over Kangaroo and Amazon. Assertion of general jurisdiction was not intended to be a 17 waiver of specific jurisdiction (under the Calder v. Jones effects test or any other basis). 18 Amazon’s statement: Kangaroo has clarified that it is asserting general personal 19 jurisdiction over Amazon. Amazon disagrees that it is subject to general personal 20 jurisdiction in this District. 21 5. Additions and Amendments. Plaintiff does not anticipate adding additional 22 parties to the case. Plaintiff intends to amend to assert indirect trademark infringement 23 as set forth above. Amazon has asked Kangaroo to identify those distributors from 24 whose offer, sale and fulfillment of goods on Amazon.com Kangaroo’s purported claims 25 arise or relate to. Kangaroo appears to own and control at least one such seller, 26 Pennies2Platimum, which is involved in a related arbitration proceeding expected to go FENNEMORE CRAIG, P.C. PHOENI X 13093160.1/045374.0001-4-Case 2:17-cv-01806-SPL Document 26 Filed 07/26/17 Page 5 of 8 1 forward in Seattle Washington. Pennies2Platimum and possibly other third party sellers 2 have granted Amazon a license to at least some of the allegedly copyrighted content that 3 forms the basis of Kangaroo’s copyright claim. 4 6. Forthcoming Motions. Plaintiff anticipates filing a motion for summary judgment 5 on liability after conducting discovery to identify Amazon’s suppliers. Amazon 6 anticipates filing motions to dismiss or for early summary judgment on Kangaroo’s 7 State law causes of action. DMCA safe harbor and the copyright license granted to 8 Amazon by at least one of Kangaroo’s so-called "authorized sellers" provide the basis 9 for a motion for summary judgment on any claim of copyright infringement relating to 10 the use of the asserted photographs on the Amazon.com website. Depending in part on 11 whether Kangaroo interferes with Pennies2Platinum and other sellers’ performance of 12 their contractual obligations to Amazon, Amazon may move to file an amended Answer. 13 Motion practice to join one or more sellers who have licensed content to Amazon, or 14 who may be in breach of their contracts with Amazon, may also be appropriate. 15 7. Related Cases. The parties are unaware of any relevant related cases pending 16 before other courts or other judges of this District. As noted above, there is an 17 arbitration pending between a Kangaroo authorized reseller and Amazon. 18 8. Mandatory Initial Discovery Pilot Project ("MIDP"). 19 MIDP Certification: Both parties have received and reviewed the June 29, 2017 20 Preliminary Order and Attachments concerning the MIDP rules and procedures. 21 Plaintiff served the Preliminary Order upon Defendant on July 3, 2017. 22 MIDP Compliance: The Parties intend to comply with the MIDP rules and 23 procedures by timely exchanging MIDP responses in compliance with the Preliminary 24 Order. 25 MIDP Issues and Disputes: No disputes have yet arisen under the MIDP. 26 9. Discovery Limitations. Plaintiff does not request any changes to the limitations FENNEMORE CRAIG, P.C. PHOENI X 13093160.1/045374.0001-5-Case 2:17-cv-01806-SPL Document 26 Filed 07/26/17 Page 6 of 8 1 on discovery imposed by the Federal Rules of Civil Procedure. 2 10. Electronically Stored Information. No known issues relating to the preservation, 3 disclosure, or discovery of electronically stored information have arisen at this time. 4 11. Request for Jury Trial. Plaintiff demands a trial by jury in accordance with Rule 5 38 of the Federal Rules of Civil Procedure. Defendant has not contested this demand. 6 12. Trial. Plaintiff estimates this case will be ready for trial by October 2018. The 7 trial will likely take five (5) days. Amazon is in the process of gathering information 8 regarding the allegations, but based on present information believes that Kangaroo’s 9 estimates on trial duration and timing are reasonable. 10 13. Expedited Trial Alternative. Plaintiff has considered and has elected not to 11 pursue the expedited trial alternative at this time. 12 14. Consent to Magistrate Judge. The parties did not consent to the assignment of 13 the case to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). 14 15. Settlement. Plaintiff Kangaroo’s statement: The parties have discussed the 15 conduct that forms the basis of this lawsuit. The parties are continuing to attempt to 16 narrow the issues. Plaintiff believes settlement is unlikely, at least until initial discovery 17 is conducted to determine the volume of disputed sales and Amazon’s source of supply. 18 Defendant Amazon’s statement: Amazon has discussed possible settlement with 19 Kangaroo and is willing to continue to do so. Regardless whether settlement can be 20 reached, Amazon intends to continue working with Kangaroo to identify and eliminate 21 any truly counterfeit items that may be listed on the Amazon.com website. 22 16. Modified Procedures. None. 23 17. Additional Matters. None. 24 25 26 FENNEMORE CRAIG, P.C. PHOENI X 13093160.1/045374.0001-6-Case 2:17-cv-01806-SPL Document 26 Filed 07/26/17 Page 7 of 8 1 DATED this 26th day of July, 2017. 2 FENNEMORE CRAIG, P.C. 3 4 By:/s/Ray K. Harris Ray K. Harris 5 Attorneys for Plaintiff 6 7 KLARQUIST SPARKMAN, LLP 8 9 By:/s/James E. Geringer 10 James E Geringer Attorney for Defendant Amazon.com, 11 Inc. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 FENNEMORE CRAIG, P.C. PHOENI X 13093160.1/045374.0001-7-Case 2:17-cv-01806-SPL Document 26 Filed 07/26/17 Page 8 of 8 1 CERTIFICATE OF SERVICE 2 I hereby certify that on July 26, 2017, I electronically transmitted the attached 3 document to the Clerk’s Office using CM/ECF System for filing with a copy mailed and 4 emailed to: 5 James E Geringer Klarquist Sparkman, LLP 6 121 SW Salmon St., Suite 1600 Portland OR 97204 7 james.geringer@klarquist.com Attorney for Defendant Amazon.com, Inc. 8 9/s/Vicki L. Morgan An employee of Fennemore Craig, PC 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 FENNEMORE CRAIG, P.C. PHOENI X 13093160.1/045374.0001-8-

Text of Proposed Order proposed Order

Case 2:17-cv-01806-SPL Document 26-1 Filed 07/26/17 Page 1 of 8 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8,) Kangaroo Manufacturing, Inc., a Florida Corporation No. CV-17-1806-PHX-SPL,) 9) Plaintiff(s),) RULE 16 10 vs.) CASE MANAGEMENT ORDER) 11 Amazon.com, Inc., a Delaware Corporation,)) 12) Defendant(s).) 13)) 14 15 The parties have met and prepared a Joint Rule 26(f) Case Management Report 16 and a Joint Proposed Rule 16 Case Management Order. On the basis of the parties’ 17 submissions, and the Court’s considered assessment of the time necessary to complete 18 discovery and all pretrial submissions, 19 IT IS ORDERED: 20 I. Governing Rules and Preliminary Order 21 Both counsel and pro se litigants must abide by the Local Rules of Civil Procedure 22 ("LRCiv" or "Local Rules"), Rules of Practice of the U.S. District Court for the District 23 of Arizona, and the Federal Rules of Civil Procedure. 24 The Court’s Preliminary Order and its Attachments (Doc. #19) are incorporated by 25 reference and remain in effect. To any extent the Preliminary Order differs from this 26 Order, this Order shall govern. 27 II. Joining Parties and Amending Pleadings 28 The deadline for joining parties, amending pleadings, and filing supplemental Case 2:17-cv-01806-SPL Document 26-1 Filed 07/26/17 Page 2 of 8 1 pleadings is twenty-one (21) days from the date of this Order. 2 Any motion for leave to amend or notice of amendment must be filed in 3 accordance with Rule 15.1 of the Local Rules of Civil Procedure. Any motion or notice 4 that does not comply with the local and federal rules may be stricken by the Court. 5 III. Discovery 6 Mandatory Initial Discovery Pilot Project ("MIDP"): This case is subject to the 7 MIDP. Each party has certified that it has received and carefully reviewed the Court’s 8 Preliminary Order and the materials attached to it to ensure familiarity and full 9 compliance with the requirements of the MIDP.1 10 Mandatory Initial Discovery Responses ("MIDP Responses"): MIDP 11 Responses were exchanged on-or-shall be exchanged no later than August 24, 2017. 12 Unless the Court orders otherwise, the parties shall file with the Clerk of Court a notice 13 of service of initial responses, rather than copies of the actual disclosures. 14 Supplemental MIDP Responses: Supplemental MIDP Response shall be served 15 on the opposing party no later than thirty (30) days after the information is discovered or 16 revealed. Unless the Court orders otherwise, the parties shall file with the Clerk of Court 17 a notice of service of supplemental responses, rather than copies of the actual disclosures. 18 Electronically Stored Information ("ESI"): ESI identified in the MIDP 19 Responses was produced – or shall be produced to the opposing party no later than 20 October 3, 2017. 21 Discovery Deadline: Following service of MIDP Responses, broader discovery 22 under Federal Rules of Civil Procedure 26, 30, 31, 33, 34, 36, and 45 may commence. All 23 discovery, including supplementation of MIDP Responses, must be completed on or 24 before April 30, 2018.2 25 1 The General Order, as well as a Notice, Checklist, and Users’ Manual are attached to this Court’s Preliminary Order, and may also be found online at the District of 26 Arizona’s Website or the Federal Judicial Center’s Website. 27 2 This supersedes the "30 days before trial" disclosure deadline. See Fed. R. Civ. P. 26(a)(3). The discovery deadline concludes the time to propound discovery, the time to 28 answer all propounded discovery, the time to supplement disclosures and discovery, the 2 Case 2:17-cv-01806-SPL Document 26-1 Filed 07/26/17 Page 3 of 8 1 Written Discovery Limitations: Each side may propound up to 25 2 interrogatories, including subparts. The parties are also limited to 25 requests for 3 production of documents, including subparts, and 25 requests for admissions, including 4 subparts. All interrogatories, requests for production of documents, and requests for 5 admissions shall be served at least forty-five (45) days before the discovery deadline.3 6 Responses to discovery requests must be stated with specificity; general or 7 boilerplate objections are not permitted. If a party objects to providing relevant 8 information, including an objection that providing the required information would 9 involve disproportionate expense or burden, it must provide particularized information 10 regarding the nature of the objection and its basis, and fairly describe the information 11 being withheld. Where a party limits its response on the basis of privilege or work 12 product, a privilege log is required unless the Court orders otherwise. 13 Fact Depositions: All depositions shall be scheduled to commence at least five (5) 14 working days prior to the discovery deadline. A deposition commenced five (5) days 15 prior to the deadline may continue up until the deadline, as necessary. Depositions shall 16 be limited to seven hours each as provided in Rule 30(d)(1) of the Federal Rules of Civil 17 Procedure. 18 Expert Disclosures: The parties shall provide full and complete expert disclosures 19 as required by Rule 26(a)(2)(A)-(C) of the Federal Rules of Civil Procedure no later than 20 February 15, 2018. Rebuttal expert disclosures, if any, shall be made no later than 21 March 8, 2018. Rebuttal experts shall be limited to responding to opinions stated 22 by initial experts. Absent truly extraordinary circumstances, parties will not be permitted 23 to supplement their expert reports after these dates. 24 time for discovery by subpoena, the time for the Court to resolve all discovery disputes, and the time to complete any final discovery necessitated by the Court’s ruling on any 25 discovery disputes. 26 3 The parties may mutually agree in writing, without Court approval, to increase the discovery limitations or extend the time provided for discovery responses in Rules 33, 34, 27 and 36 of the Federal Rules of Civil Procedure. Such agreed-upon increases or extensions, however, shall not alter or extend the discovery deadlines set forth in this 28 Order. 3 Case 2:17-cv-01806-SPL Document 26-1 Filed 07/26/17 Page 4 of 8 1 Expert Depositions: Expert depositions shall be completed no later than 2 April 30, 2018. Expert depositions shall be scheduled to commence at least five (5) 3 working days before the deadline. 4 Discovery Disputes: Discovery disputes are strongly discouraged. Parties shall 5 not present any discovery dispute without first seeking to resolve the matter through 6 personal consultation and sincere effort as required by LRCiv 7.2(j). In the event the 7 parties cannot reach a resolution, they may jointly request assistance by contacting the 8 Court to request a hearing on the dispute; the parties shall not file written discovery 9 motions without leave of Court. The Court will seek to resolve the dispute during the 10 hearing, and may enter appropriate orders on the basis of the hearing or may order written 11 briefing. If the Court orders written submissions, the parties shall include a statement 12 certifying that counsel could not satisfactorily resolve the matter after personal 13 consultation and sincere efforts to do so in accordance with Local Rule 7.2(j). 14 Absent extraordinary circumstances, the Court will not entertain fact discovery 15 disputes after the deadline for completion of fact discovery, and will not entertain expert 16 discovery disputes after the deadline for completion of expert discovery. 17 Protective Orders: As a general practice, this Court does not approve or adopt 18 blanket, umbrella protective orders or confidentiality agreements, even when stipulated to 19 by the parties. Further, the fact that the parties have designated materials or information 20 as confidential pursuant to an agreement or stipulation does not mean that the Court will 21 order that the filings containing such information be placed under seal. In the event 22 discovery mandates disclosure of specific, harmful, confidential material, the Court will 23 entertain a request for a protective order at that time if it is tailored to protect the 24 particular interests at hand in accordance with Rule 26(c) of the Federal Rules of Civil 25 Procedure. Any party wishing to seal a record or document and shield it from public view 26 must prove why the interest in secrecy outweighs the presumption of public access to 27 judicial records and documents. 28 4 Case 2:17-cv-01806-SPL Document 26-1 Filed 07/26/17 Page 5 of 8 1 IV. Motions 2 Dispositive Motion Deadline: Dispositive motions shall be filed no later than 3 May 30, 2018. The Court emphasizes that it has a strict policy that, absent 4 extraordinary circumstances, the dispositive motion deadline will not be extended beyond 5 the two-year anniversary of the date of commencement of an action, and the proposed 6 deadlines should be devised cautiously. 7 Pre-Motion Conferral: Any motion made pursuant to Federal Rule of Civil 8 Procedure 12 is discouraged if the challenged defect in the pleading can be cured by 9 filing an amended pleading. The Court therefore requires: (1) conferral-the parties must 10 confer prior to filing a motion to dismiss for failure to state a claim or counterclaim 11 pursuant to Rule 12(b)(6), or a motion for judgment on the pleadings on a claim or 12 counterclaim pursuant to Rule 12(c), to determine whether such motion can be avoided; 13 and (2) certification-a certificate of conferral must be attached to any motion indicating 14 that the movant notified the opposing party of the issues asserted in its motion, the parties 15 conferred (either in person, by telephone, or in writing) but were unable to agree that the 16 pleading was curable in any part by a permissible amendment offered by the pleading 17 party. Any motion lacking an attached compliant certificate may be summarily stricken 18 by the Court. 19 The parties must also confer prior to filing any motion pursuant to Federal Rule of 20 Civil Procedure 56. In doing so, the parties shall exchange a two-page statement 21 describing any anticipated motion for summary judgment and response, identifying the 22 issues and claims on which summary judgment will be sought and the basis for the 23 motions and response. The purpose of conferral should be aimed at streamlining the 24 issues in dispute, and dispensing of statements of fact. A certificate of conferral must be 25 attached to any motion for summary judgment. Any motion lacking an attached 26 compliant certificate may be summarily stricken by the Court. 27 Motion Limitations: No party shall file more than one motion for summary 28 judgment under Rule 56 of the Federal Rules of Civil Procedure without leave of Court. 5 Case 2:17-cv-01806-SPL Document 26-1 Filed 07/26/17 Page 6 of 8 1 Statements of Fact: Statements of Fact ("SOF") required by Local Rule 56.1 shall 2 not exceed ten (10) pages in length, exclusive of exhibits. Electronic copies of SOF shall 3 be emailed to the opposing party and to chambers in Microsoft Word® format at 4 Logan_Chambers@azd.uscourts.gov. Any Controverting SOF, as set forth in Local Rule 5 56.1(b), shall include the entirety of the SOF in each responsive paragraph. Additional 6 SOF shall continue in numerical sequence. 7 V. Settlement Discussions 8 All parties and their counsel shall meet in person and engage in good faith 9 settlement talks no later than January 26, 2018. Upon completion of such settlement 10 talks, and in no event later than five (5) working days after the deadline for settlement 11 talks, the parties shall file with the Court a joint report on settlement talks executed by or 12 on behalf of all counsel. The report shall inform the Court that good faith settlement talks 13 have been held and shall report on the outcome of such talks. The parties shall indicate 14 whether assistance from the Court is needed in seeking settlement of the case. The parties 15 shall promptly notify the Court at any time when settlement is reached during the course 16 of this litigation. 17 VI. Final Pretrial Conference 18 If no dispositive motions are pending before the Court after the dispositive motion 19 deadline has passed, the parties shall jointly file and serve a "Notice of Readiness for 20 Final Pretrial Conference" within seven (7) days of the dispositive motion deadline. If a 21 dispositive motion is pending before the Court following the dispositive motion deadline, 22 the parties shall jointly file and serve a "Notice of Readiness for Final Pretrial 23 Conference" within seven (7) days of the resolution of the dispositive motion. Following 24 the filing of the Notice, the Court will issue an Order Setting Final Pretrial Conference 25 that: (1) sets deadlines for briefing motions in limine; (2) includes a form for the 26 completion of the parties’ joint proposed Final Pretrial Order; and (3) otherwise instructs 27 the parties concerning their duties in preparing for the Final Pretrial Conference. A firm 28 trial date will be set at the Final Pretrial Conference. 6 Case 2:17-cv-01806-SPL Document 26-1 Filed 07/26/17 Page 7 of 8 1 VII. Additional Guidelines 2 Communication with the Court: As a general matter, all communications with 3 the Court should be made on the record. Telephone calls regarding routine administrative 4 matters in civil cases should be directed to this Court’s Judicial Assistant at (602) 322-5 7550. Telephone calls regarding criminal cases should be directed to this Court’s 6 Courtroom Deputy at (602) 322-7235. Direct communications with law clerks is 7 prohibited. No member of chambers staff will provide the parties with legal advice 8 concerning any matter. 9 Oral Argument and Evidentiary Hearings: This Court does not have a preset 10 schedule for setting oral arguments and evidentiary hearings. The Court will schedule 11 oral arguments and evidentiary hearings when warranted and advise the parties 12 accordingly. Any party desiring oral argument should request it by noting it below the 13 title of the related filing, see LRCiv 7.2(f); such requests should be made in instances 14 where it would assist the resolution of the motion, and not merely made as a matter of 15 course. Any party desiring an evidentiary hearing should request it in the body of its 16 filing. Separate motions or requests for oral argument or evidentiary hearings are subject 17 to being stricken or may be modified on the docket to a notice. 18 PDF Text Searchable Format: All electronic filings must be filed in a PDF text 19 searchable format in accordance with LRCiv 7.1(c). 20 Copies: A paper copy of any document exceeding ten (10) pages in length shall be 21 submitted to chambers promptly following its electronic filing. Paper copies of 22 documents which are too large for stapling must be submitted in a three-ring binder. 23 Electronic copies of proposed orders or findings shall be emailed to chambers in 24 Microsoft Word® format at Logan_Chambers@azd.uscourts.gov. 25 Font: All memoranda filed with the Court must comply with Local Rule of Civil 26 Procedure 7.1(b) requiring 13 point font in text and footnotes. 27 Citations: Citations in support of any assertion in the text shall be included in the 28 text, not in footnotes. 7 Case 2:17-cv-01806-SPL Document 26-1 Filed 07/26/17 Page 8 of 8 1 VIII. Final Advisals 2 Noncompliance: The parties are specifically admonished that failure to prosecute, 3 to comply with court orders, or to comply with the local and federal rules may result in 4 dismissal of all or part of this case, imposition of sanctions, or summary disposition of 5 matters pending before the Court. See Fed. R. Civ. P. 41; LRCiv 7.2 ("[i]f a motion does 6 not conform in all substantial respects with the requirements of [the Local Rules], or if 7 the opposing party does not serve and file the required answering memoranda… such 8 noncompliance may be deemed a consent to the denial or granting of the motion and the 9 Court may dispose of the motion summarily"). 10 Deadline Extensions: The parties are advised that the Court intends to enforce 11 the deadlines and guidelines set forth in this Order, and they should plan their litigation 12 activities accordingly. Even if all parties stipulate to an extension, the Court will not 13 extend the deadlines absent good cause to do so. As a general matter, the pendency of 14 settlement discussions or the desire to schedule mediation does not constitute good cause. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8

*RESPONSE to Order to Show Cause re: {{25}} Order by Plaintiff Kangaroo Manufacturing Incorporated.

Case 2:17-cv-01806-SPL Document 27 Filed 07/26/17 Page 1 of 3 1 FENNEMORE CRAIG, P.C. Ray K. Harris (No. 007408) 2 2394 East Camelback Road, Suite 600 Phoenix, AZ 85016-3429 3 Telephone: (602) 916-5000 Email: aabdo@fclaw.com 4 Email: rharris@fclaw.com 5 Attorneys for Plaintiff Kangaroo Manufacturing, Inc. 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE DISTRICT OF ARIZONA 10 No. CV-17-1806-PHX-SPL Kangaroo Manufacturing, Inc., a 11 Florida corporation Plaintiff, PLAINTIFF’S RESPONSE TO COURT’S 12 ORDER DATED JULY 26, 2017 13 v. 14 Amazon.com, Inc., a Delaware corporation 15 Defendant. 16 17 Plaintiff hereby responds to the Court’s Order dated July 26, 2017 (Doc. 25). 18 Plaintiff’s counsel apologizes for failing to timely file the Joint Case Management Report. 19 The following steps were taken to prepare the joint case management plan and scheduling 20 order pursuant to the Court’s Preliminary Order (Doc. 19). 21 On July 17, 2017, Plaintiff’s counsel sent Defendant’s counsel an email attaching 22 a draft of the Joint Case Management Report. See Exhibit A (email, without the draft 23 attached). 24 On July 18, 2017, counsel for the parties conducted the Rule 26(f) meeting by 25 telephone. The issues discussed included the possibility of narrowing the issues and those 26 discussions (including the possibility of extending the time to answer) continued after the FENNEMORE CRAIG, P.C. PHOENI X 13094283.1/045374.0001 Case 2:17-cv-01806-SPL Document 27 Filed 07/26/17 Page 2 of 3 1 Rule 26(f) meeting. 2 On July 25, 2017, upon receiving Defendant’s Answer, Plaintiff’s counsel sent 3 Defendant’s counsel an email requesting his contributions to the Joint Case Management 4 Report. Defendant’s counsel subsequently sent a redlined version of the Joint Case 5 Management Report. See Exhibit B (email, without the draft attached). Upon review 6 (after business hours) Plaintiff’s counsel sent a single revision to the Joint Case 7 Management Report to Defendant’s counsel. See Exhibit C attached. 8 Plaintiff’s counsel did not advise the Court Defendant’s contribution to the Joint 9 Case Management Report and proposed scheduling order had not been received on July 10 24 and did not file an incomplete report. The next day, when Defendant’s contribution to 11 the report was received, Plaintiff’s counsel was engaged in other matters. Consequently, 12 the Joint Case Management Report was not filed until today – coincidentally, shortly after 13 the Court’s Order to Show Cause was received. 14 The judgment (in retrospect a misjudgment) that a complete report filed late was 15 better than a nonconforming plan filed on time was intended to avoid confusion and 16 multiple filings. The delay was not intended to disrespect the Court, its staff or the 17 judicial system. Plaintiff has not abandoned prosecution of this action and recommits to 18 do so in a timely fashion. 19 Respectfully submitted this 26th day of July, 2017. 20 FENNEMORE CRAIG, P.C. 21 22 By:/s/Ray K. Harris Ray K. Harris 23 Attorneys for Plaintiff 24 25 26 FENNEMORE CRAIG, P.C. PHOENI X 13094283.1/045374.0001-2-Case 2:17-cv-01806-SPL Document 27 Filed 07/26/17 Page 3 of 3 1 CERTIFICATE OF SERVICE 2 I hereby certify that on July 26, 2017, I electronically transmitted the attached 3 document to the Clerk’s Office using CM/ECF System for filing with a copy mailed and 4 emailed to: 5 James E Geringer Klarquist Sparkman LLP 6 121 SW Salmon St., Suite 1600 Portland OR 97204 7 james.geringer@klarquist.com Attorney for Defendant Amazon.com, Inc. 8 9/s/Vicki L. Morgan An employee of Fennemore Craig, PC 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 FENNEMORE CRAIG, P.C. PHOENI X 13094283.1/045374.0001-3-

Exhibit Exhibit A

Case 2: 17-cv-01806-SPL Document 27-1 Filed 07/26/17 Page 1 of 2 Exhibit A Case 2: 17-cv-01806-SPL Document 27-1 Filed 07/26/17 Page 2 of 2 MORGAN, VICKI From: Sent To: Subject: Attachments: HARRIS, RAY < RHARRIS@FCLAW.com > Monday, July 17, 2017 5: 20 PM James E. Geringer, ATKINSON, BLAKE; Mitchell F. Ducey 13048958 _ 2. doc [FC-Email. FID7982548] 13048958 _ 2. doc Jim, Attached for our conference call tomorrow is a draft of the Joint Case Management Report.

Exhibit Exhibit B

Case 2: 17-cv-01806-SPL Document 27-2 Filed 07/26/17 Page 1 of 2 Exhibit B Case 2: 17-cv-01806-SPL Document 27-2 Filed 07/26/17 Page 2 of 2 MORGAN, VICKI From: Sent: To: Subject: Attachments: HARRIS, RAY < RHARRIS@FCLAW.com > Wednesday, July 26, 2017 8: 40 AM MORGAN, VICKI FW: Kangaroo v Amazon (FC Email FID7982548] DRAFT joint CMS (redline). doc From: James E. Geringer (mailto: james geringer@klarquist com] Sent: Tuesday, July 25, 2017 1: 48 PM To: HARRIS, RAY CC: Mitchell F. Ducey; Justin Ligeri (inicola@kangaroomfg.com); ATKINSON, BLAKE Subject: RE: Kangaroo v Amazon (FC-Email. FID7982548] Thanks Ray. I enclose a copy, redlined to reflect Amazon's edits.-Jim From: RHARRIS@FCLAW.com (mailto: RHARRIS@FCLAW.com] Sent: Tuesday, July 25, 2017 1: 36 PM To: James E. Geringer < james. geringer@klarquist.com > Cc: Mitchell F. Ducey < mducey@md-.com >; Justin Ligeri (inicola (@kangaroomfg.com) < jnicola (@kangaroomfg.com >; BATKINSON@fclaw.com Subject: RE: Kangaroo v Amazon [FC-Email. FID7982548) Jim We received notice Amazon has filed its Answer, but we have not received your contribution to the joint case management plan. Ray K. Harris, Director FENNEMORE CRAIG 2394 East Camelback Road, Suite 600, Phoenix, AZ 85016-3429 T: 602. 916. 5414 F: 602. 916. 5614 rharris@fclaw.com View Bio in 0 0 0 CONFIDENTIALITY NOTICE: The information contained in this message may be protected by the attorney-client privilege. If you believe that it has been sent to you in error, do not read it. Please immediately reply to the sender that you have received the message in error. Then delete it. Thank you.

Exhibit Exhibit C) *Modified to correct event on 7/27/2017 (REK

Case 2: 17-cv-01806-SPL Document 27-3 Filed 07/26/17 Page 1 of 2 Exhibit C Case 2: 17-cv-01806-SPL Document 27-3 Filed 07 26/17 Page 2 of 2 HARRIS, RAY From: Sent To: CC: Subject: HARRIS, RAY Tuesday, July 25, 2017 1 36 PM James E. Geringer' ' Mitchell F. Ducey: Justin Ligeri (jnicola@kangaroomfg.com); ATKINSON, BLAKE RE: Kangaroo v Amazon (FC-Email FID7982548) 1, We received notice Amazon has filed its Answer, but we have not received your contribution to the joint case management plan.

ORDER that the Court's Order {{25}} is discharged and no further action will be taken by the Court at this time. Signed by Judge Steven P. Logan on 7/27/17.

Case 2:17-cv-01806-SPL Document 28 Filed 07/27/17 Page 1 of 1 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8) No. CV-17-01806-PHX-SPL Kangaroo Manufacturing, Inc., 9)) Plaintiff,) ORDER 10) vs. 11)) Amazon.com, Inc.,) 12) 13 Defendant.)) 14) 15 Having reviewed Plaintiff’s Response (Doc. 27), 16 IT IS ORDERED that the Court’s Order (Doc. 25) is discharged and no further 17 action will be taken by the Court at this time. 18 Dated this 27th day of July, 2017. 19 20 Honorable Steven P. Logan United States District Judge 21 22 23 24 25 26 27 28

RULE 16 CASE MANAGEMENT ORDER: All Discovery due by 4/30/2018. Dispositive motions due by 5/30/2018. Signed by Judge Steven P. Logan on 7/27/17.

Case 2:17-cv-01806-SPL Document 29 Filed 07/27/17 Page 1 of 8 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Kangaroo Manufacturing, Inc.,) No. CV-17-01806-PHX-SPL) 9) Plaintiff,) RULE 16 10 vs.) CASE MANAGEMENT ORDER) 11) Amazon.com, Inc.,) 12) Defendant.) 13)) 14 15 The parties have met and prepared a Joint Rule 26(f) Case Management Report 16 and a Joint Proposed Rule 16 Case Management Order. On the basis of the parties’ 17 submissions, and the Court’s considered assessment of the time necessary to complete 18 discovery and all pretrial submissions, 19 IT IS ORDERED: 20 I. Governing Rules and Preliminary Order 21 Both counsel and pro se litigants must abide by the Local Rules of Civil Procedure 22 ("LRCiv" or "Local Rules"), Rules of Practice of the U.S. District Court for the District 23 of Arizona, and the Federal Rules of Civil Procedure. 24 The Court’s Preliminary Order and its Attachments (Doc. 19) are incorporated by 25 reference and remain in effect. To any extent the Preliminary Order differs from this 26 Order, this Order shall govern. 27 II. Joining Parties and Amending Pleadings 28 The deadline for joining parties, amending pleadings, and filing supplemental Case 2:17-cv-01806-SPL Document 29 Filed 07/27/17 Page 2 of 8 1 pleadings is August 17, 2017 from the date of this Order. 2 Any motion for leave to amend or notice of amendment must be filed in 3 accordance with Rule 15.1 of the Local Rules of Civil Procedure. Any motion or notice 4 that does not comply with the local and federal rules may be stricken by the Court. 5 III. Discovery 6 Mandatory Initial Discovery Pilot Project ("MIDP"): This case is subject to the 7 MIDP. Each party has certified that it has received and carefully reviewed the Court’s 8 Preliminary Order and the materials attached to it to ensure familiarity and full 9 compliance with the requirements of the MIDP.1 10 Mandatory Initial Discovery Responses ("MIDP Responses"): MIDP 11 Responses shall be exchanged no later than August 24, 2017. Unless the Court orders 12 otherwise, the parties shall file with the Clerk of Court a notice of service of initial 13 responses, rather than copies of the actual disclosures. 14 Supplemental MIDP Responses: Supplemental MIDP Response shall be served 15 on the opposing party no later than thirty (30) days after the information is discovered or 16 revealed. Unless the Court orders otherwise, the parties shall file with the Clerk of Court 17 a notice of service of supplemental responses, rather than copies of the actual disclosures. 18 Electronically Stored Information ("ESI"): ESI identified in the MIDP 19 Responses shall be produced to the opposing party no later than October 3, 2017. 20 Discovery Deadline: Following service of MIDP Responses, broader discovery 21 under Federal Rules of Civil Procedure 26, 30, 31, 33, 34, 36, and 45 may commence. All 22 discovery, including supplementation of MIDP Responses, must be completed on or 23 before April 30, 2018. 2 24 1 The General Order, as well as a Notice, Checklist, and Users’ Manual are attached to this Court’s Preliminary Order, and may also be found online at the District of 25 Arizona’s Website or the Federal Judicial Center’s Website. 26 2 This supersedes the "30 days before trial" disclosure deadline. See Fed. R. Civ. P. 26(a)(3). The discovery deadline concludes the time to propound discovery, the time to 27 answer all propounded discovery, the time to supplement disclosures and discovery, the time for discovery by subpoena, the time for the Court to resolve all discovery disputes, 28 and the time to complete any final discovery necessitated by the Court’s ruling on any 2 Case 2:17-cv-01806-SPL Document 29 Filed 07/27/17 Page 3 of 8 1 Written Discovery Limitations: Each side may propound up to 25 2 interrogatories, including subparts. The parties are also limited to 25 requests for 3 production of documents, including subparts, and 25 requests for admissions, including 4 subparts. All interrogatories, requests for production of documents, and requests for 5 admissions shall be served at least forty-five (45) days before the discovery deadline.3 6 Responses to discovery requests must be stated with specificity; general or 7 boilerplate objections are not permitted. If a party objects to providing relevant 8 information, including an objection that providing the required information would 9 involve disproportionate expense or burden, it must provide particularized information 10 regarding the nature of the objection and its basis, and fairly describe the information 11 being withheld. Where a party limits its response on the basis of privilege or work 12 product, a privilege log is required unless the Court orders otherwise. 13 Fact Depositions: All depositions shall be scheduled to commence at least five (5) 14 working days prior to the discovery deadline. A deposition commenced five (5) days 15 prior to the deadline may continue up until the deadline, as necessary. Depositions shall 16 be limited to seven hours each as provided in Rule 30(d)(1) of the Federal Rules of Civil 17 Procedure. 18 Expert Disclosures: The parties shall provide full and complete expert disclosures 19 as required by Rule 26(a)(2)(A)-(C) of the Federal Rules of Civil Procedure no later than 20 February 15, 2018. Rebuttal expert disclosures, if any, shall be made no later than 21 March 8, 2018. Rebuttal experts shall be limited to responding to opinions stated by 22 initial experts. Absent truly extraordinary circumstances, parties will not be permitted to 23 supplement their expert reports after these dates. 24 Expert Depositions: Expert depositions shall be completed no later than April 30, 25 discovery disputes. 26 3 The parties may mutually agree in writing, without Court approval, to increase the discovery limitations or extend the time provided for discovery responses in Rules 33, 34, 27 and 36 of the Federal Rules of Civil Procedure. Such agreed-upon increases or extensions, however, shall not alter or extend the discovery deadlines set forth in this 28 Order. 3 Case 2:17-cv-01806-SPL Document 29 Filed 07/27/17 Page 4 of 8 1 2018. Expert depositions shall be scheduled to commence at least five (5) working days 2 before the deadline. 3 Discovery Disputes: Discovery disputes are strongly discouraged. Parties shall 4 not present any discovery dispute without first seeking to resolve the matter through 5 personal consultation and sincere effort as required by LRCiv 7.2(j). In the event the 6 parties cannot reach a resolution, they may jointly request assistance by contacting the 7 Court to request a hearing on the dispute; the parties shall not file written discovery 8 motions without leave of Court. The Court will seek to resolve the dispute during the 9 hearing, and may enter appropriate orders on the basis of the hearing or may order written 10 briefing. If the Court orders written submissions, the parties shall include a statement 11 certifying that counsel could not satisfactorily resolve the matter after personal 12 consultation and sincere efforts to do so in accordance with Local Rule 7.2(j). 13 Absent extraordinary circumstances, the Court will not entertain fact discovery 14 disputes after the deadline for completion of fact discovery, and will not entertain expert 15 discovery disputes after the deadline for completion of expert discovery. 16 Protective Orders: As a general practice, this Court does not approve or adopt 17 blanket, umbrella protective orders or confidentiality agreements, even when stipulated to 18 by the parties. Further, the fact that the parties have designated materials or information 19 as confidential pursuant to an agreement or stipulation does not mean that the Court will 20 order that the filings containing such information be placed under seal. In the event 21 discovery mandates disclosure of specific, harmful, confidential material, the Court will 22 entertain a request for a protective order at that time if it is tailored to protect the 23 particular interests at hand in accordance with Rule 26(c) of the Federal Rules of Civil 24 Procedure. Any party wishing to seal a record or document and shield it from public view 25 must prove why the interest in secrecy outweighs the presumption of public access to 26 judicial records and documents. 27 IV. Motions 28 Dispositive Motion Deadline: Dispositive motions shall be filed no later than 4 Case 2:17-cv-01806-SPL Document 29 Filed 07/27/17 Page 5 of 8 1 May 30, 2018. The Court emphasizes that it has a strict policy that, absent extraordinary 2 circumstances, the dispositive motion deadline will not be extended beyond the two-year 3 anniversary of the date of commencement of an action, and the proposed deadlines 4 should be devised cautiously. 5 Pre-Motion Conferral: Any motion made pursuant to Federal Rule of Civil 6 Procedure 12 is discouraged if the challenged defect in the pleading can be cured by 7 filing an amended pleading. The Court therefore requires: (1) conferral-the parties must 8 confer prior to filing a motion to dismiss for failure to state a claim or counterclaim 9 pursuant to Rule 12(b)(6), or a motion for judgment on the pleadings on a claim or 10 counterclaim pursuant to Rule 12(c), to determine whether such motion can be avoided; 11 and (2) certification-a certificate of conferral must be attached to any motion indicating 12 that the movant notified the opposing party of the issues asserted in its motion, the parties 13 conferred (either in person, by telephone, or in writing) but were unable to agree that the 14 pleading was curable in any part by a permissible amendment offered by the pleading 15 party. Any motion lacking an attached compliant certificate may be summarily stricken 16 by the Court. 17 The parties must also confer prior to filing any motion pursuant to Federal Rule of 18 Civil Procedure 56. In doing so, the parties shall exchange a two-page statement 19 describing any anticipated motion for summary judgment and response, identifying the 20 issues and claims on which summary judgment will be sought and the basis for the 21 motions and response. The purpose of conferral should be aimed at streamlining the 22 issues in dispute, and dispensing of statements of fact. A certificate of conferral must be 23 attached to any motion for summary judgment. Any motion lacking an attached 24 compliant certificate may be summarily stricken by the Court. 25 Motion Limitations: No party shall file more than one motion for summary 26 judgment under Rule 56 of the Federal Rules of Civil Procedure without leave of Court. 27 Statements of Fact: Statements of Fact ("SOF") required by Local Rule 56.1 shall 28 not exceed ten (10) pages in length, exclusive of exhibits. Electronic copies of SOF shall 5 Case 2:17-cv-01806-SPL Document 29 Filed 07/27/17 Page 6 of 8 1 be emailed to the opposing party and to chambers in Microsoft Word® format at 2 Logan_Chambers@azd.uscourts.gov. Any Controverting SOF, as set forth in Local Rule 3 56.1(b), shall include the entirety of the SOF in each responsive paragraph. Additional 4 SOF shall continue in numerical sequence. 5 V. Settlement Discussions 6 All parties and their counsel shall meet in person and engage in good faith 7 settlement talks no later than January 26, 2018. Upon completion of such settlement 8 talks, and in no event later than five (5) working days after the deadline for settlement 9 talks, the parties shall file with the Court a joint report on settlement talks executed by or 10 on behalf of all counsel. The report shall inform the Court that good faith settlement talks 11 have been held and shall report on the outcome of such talks. The parties shall indicate 12 whether assistance from the Court is needed in seeking settlement of the case. The parties 13 shall promptly notify the Court at any time when settlement is reached during the course 14 of this litigation. 15 VI. Final Pretrial Conference 16 If no dispositive motions are pending before the Court after the dispositive motion 17 deadline has passed, the parties shall jointly file and serve a "Notice of Readiness for 18 Final Pretrial Conference" within seven (7) days of the dispositive motion deadline. If a 19 dispositive motion is pending before the Court following the dispositive motion deadline, 20 the parties shall jointly file and serve a "Notice of Readiness for Final Pretrial 21 Conference" within seven (7) days of the resolution of the dispositive motion. Following 22 the filing of the Notice, the Court will issue an Order Setting Final Pretrial Conference 23 that: (1) sets deadlines for briefing motions in limine; (2) includes a form for the 24 completion of the parties’ joint proposed Final Pretrial Order; and (3) otherwise instructs 25 the parties concerning their duties in preparing for the Final Pretrial Conference. A firm 26 trial date will be set at the Final Pretrial Conference. 27 VII. Additional Guidelines 28 Communication with the Court: As a general matter, all communications with 6 Case 2:17-cv-01806-SPL Document 29 Filed 07/27/17 Page 7 of 8 1 the Court should be made on the record. Telephone calls regarding routine administrative 2 matters in civil cases should be directed to this Court’s Judicial Assistant at (602) 322-3 7550. Telephone calls regarding criminal cases should be directed to this Court’s 4 Courtroom Deputy at (602) 322-7235. Direct communications with law clerks is 5 prohibited. No member of chambers staff will provide the parties with legal advice 6 concerning any matter. 7 Oral Argument and Evidentiary Hearings: This Court does not have a preset 8 schedule for setting oral arguments and evidentiary hearings. The Court will schedule 9 oral arguments and evidentiary hearings when warranted and advise the parties 10 accordingly. Any party desiring oral argument should request it by noting it below the 11 title of the related filing, see LRCiv 7.2(f); such requests should be made in instances 12 where it would assist the resolution of the motion, and not merely made as a matter of 13 course. Any party desiring an evidentiary hearing should request it in the body of its 14 filing. Separate motions or requests for oral argument or evidentiary hearings are subject 15 to being stricken or may be modified on the docket to a notice. 16 PDF Text Searchable Format: All electronic filings must be filed in a PDF text 17 searchable format in accordance with LRCiv 7.1(c). 18 Copies: A paper copy of any document exceeding ten (10) pages in length shall be 19 submitted to chambers promptly following its electronic filing. Paper copies of 20 documents which are too large for stapling must be submitted in a three-ring binder. 21 Electronic copies of proposed orders or findings shall be emailed to chambers in 22 Microsoft Word® format at Logan_Chambers@azd.uscourts.gov. 23 Font: All memoranda filed with the Court must comply with Local Rule of Civil 24 Procedure 7.1(b) requiring 13 point font in text and footnotes. 25 Citations: Citations in support of any assertion in the text shall be included in the 26 text, not in footnotes. 27 VIII. Final Advisals 28 Noncompliance: The parties are specifically admonished that failure to prosecute, 7 Case 2:17-cv-01806-SPL Document 29 Filed 07/27/17 Page 8 of 8 1 to comply with court orders, or to comply with the local and federal rules may result in 2 dismissal of all or part of this case, imposition of sanctions, or summary disposition of 3 matters pending before the Court. See Fed. R. Civ. P. 41; LRCiv 7.2 ("[i]f a motion does 4 not conform in all substantial respects with the requirements of [the Local Rules], or if 5 the opposing party does not serve and file the required answering memoranda… such 6 noncompliance may be deemed a consent to the denial or granting of the motion and the 7 Court may dispose of the motion summarily"). 8 Deadline Extensions: The parties are advised that the Court intends to enforce 9 the deadlines and guidelines set forth in this Order, and they should plan their litigation 10 activities accordingly. Even if all parties stipulate to an extension, the Court will not 11 extend the deadlines absent good cause to do so. As a general matter, the pendency of 12 settlement discussions or the desire to schedule mediation does not constitute good cause. 13 Dated this 27th day of July, 2017. 14 15 Honorable Steven P. Logan United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 8

AMENDED ANSWER to {{1}} Complaint by Amazon.com Incorporated.

Case 2:17-cv-01806-SPL Document 30 Filed 08/17/17 Page 1 of 14 1 JAMES E. GERINGER (admitted pro hac vice) james.geringer@klarquist.com 2 KLARQUIST SPARKMAN, LLP 3 121 SW Salmon Street, Suite 1600 Portland, Oregon 97204 4 Telephone: (503) 595-5300 5 Facsimile: (503) 595-5301 6 Counsel for Defendant AMAZON.COM, INC. 7 IN THE UNITED STATES DISTRICT COURT 8 9 FOR THE DISTRICT OF ARIZONA 10 11 Kangaroo Manufacturing, Inc., Case No.: CV-17-1806-PHX-SPL 12 Plaintiff, FIRST AMENDED ANSWER 13 v. AND DEFENSES OF DEFENDANT 14 AMAZON.COM, INC. Amazon.com, Inc., 15 16 Defendant. DEMAND FOR JURY TRIAL 17 18 Defendant Amazon.com, Inc. ("Amazon") answers the Complaint of plaintiff Kan-19 garoo Manufacturing, Inc. ("Kangaroo") as follows: 20 21 1. Amazon lacks knowledge or information sufficient to form a belief as to the 22 truth of the allegations of paragraph 1 of the complaint. 23 2. Amazon admits that it is a Delaware corporation with a principle place of 24 business in Washington. 25 26 27 Case 2:17-cv-01806-SPL Document 30 Filed 08/17/17 Page 2 of 14 1 3. Amazon admits this Court has diversity subject matter jurisdiction over 2 plaintiff’s purported claims. Amazon denies any remaining allegations of paragraph 3 of 3 the complaint. 4 4. Amazon admits this Court has federal question subject matter jurisdiction 5 6 over plaintiff’s purported claims allegedly arising under 15 U.S.C. and 17 U.S.C. Amazon 7 denies any remaining allegations of paragraph 4 of the complaint. 8 5. Amazon denies the allegations in paragraph 5 of the complaint. Kangaroo 9 has stated that it asserts personal jurisdiction in this action under a theory of general juris-10 diction. Amazon denies that it is subject to general personal jurisdiction in Arizona. Am-11 12 azon denies that venue is proper in this District. 13 6. Amazon lacks knowledge or information sufficient to form a belief as to the 14 truth of the allegations of paragraph 6 of the complaint. 15 7. Amazon lacks knowledge or information sufficient to form a belief as to the 16 17 truth of the allegations of paragraph 7 of the complaint. 18 8. Amazon admits that it offers services which allow many different entities to 19 advertise and sell products on the Amazon.com website. Amazon lacks knowledge or in-20 formation sufficient to form a belief as to the truth of any remaining allegations of para-21 22 graph 8 of the complaint. 23 9. Amazon denies the allegations in paragraph 9 of the complaint. 24 10. Amazon denies the allegations in paragraph 10 of the complaint. 25 26 27 2 Case 2:17-cv-01806-SPL Document 30 Filed 08/17/17 Page 3 of 14 1 11. Amazon admits that many products listed on the Amazon.com website are 2 displayed using dynamically generated web pages which may include images, price infor-3 mation, descriptive text, customer reviews, order options, hyperlinks, and other infor-4 mation. Amazon lacks knowledge or information sufficient to form a belief as to the truth 5 6 of any remaining allegations of this paragraph of the complaint. 7 12. Amazon admits that, for many products, multiple sellers can list the product 8 for sale on the Amazon.com website. Amazon lacks knowledge or information sufficient 9 to form a belief as to the truth of any remaining allegations of this paragraph of the com-10 plaint. 11 12 13. Amazon admits that "ASIN" is an acronym that stands for Amazon Standard 13 Identification Number ("ASIN"), a ten character alphanumeric product identifier. Amazon 14 denies the remaining allegations of this paragraph of the complaint. 15 14. Amazon lacks knowledge or information sufficient to form a belief as to the 16 17 truth of any remaining allegations of this paragraph of the complaint. 18 15. Amazon admits it offers services using the phrase "Fulfillment by Amazon," 19 (sometimes abbreviated "FBA"), which helps participating sellers to ship their products, 20 and that FBA services use Amazon Fulfillment Centers. Amazon lacks knowledge or in-21 22 formation sufficient to form a belief as to the truth of any remaining allegations of this 23 paragraph of the complaint. 24 16. Amazon admits it has Fulfillment Centers in Arizona. Amazon denies the 25 allegations in paragraph 16 of the complaint. 26 27 17. Amazon denies the allegations in paragraph 17 of the complaint. 3 Case 2:17-cv-01806-SPL Document 30 Filed 08/17/17 Page 4 of 14 1 18. Amazon lacks knowledge or information sufficient to form a belief as to the 2 truth of the allegations of paragraph 18 of the complaint. 3 19. Amazon lacks knowledge or information sufficient to form a belief as to the 4 truth of the allegations of paragraph 19 of the complaint. 5 6 20. Amazon admits that the FBA service uses physical data such as product 7 weight and dimensions, but lacks knowledge or information sufficient to form a belief as 8 to the truth of any allegations that may be made in paragraph 20 of the complaint. 9 21. Amazon denies the allegations in paragraph 21 of the complaint. 10 22. Amazon understands this paragraph to allege that Amazon owes some kind 11 12 of obligation to Kangaroo in relation to "proper storage and fulfillment fees." Based on 13 this understanding, Amazon denies the allegation of paragraph 22 of the complaint. Other-14 wise, Amazon lacks knowledge or information sufficient to form a belief as to the truth of 15 any allegations that may be made in paragraph 22 of the complaint. 16 17 23. Amazon lacks knowledge or information sufficient to form a belief as to the 18 truth of any allegations that may be made in paragraph 23 of the complaint. 19 24. Amazon believes that, for many sellers with Professional selling plans, Buy 20 Box placement can lead to increased sales. Amazon lacks knowledge or information suf-21 22 ficient to form a belief as to the truth of any remaining allegations that may be made in 23 paragraph 24 of the complaint. 24 25. Amazon denies any allegations of paragraph 25 of the complaint. 25 26. Amazon denies any allegations of paragraph 26 of the complaint. 26 27 27. Amazon denies the allegations of paragraph 27 of the complaint. 4 Case 2:17-cv-01806-SPL Document 30 Filed 08/17/17 Page 5 of 14 1 28. Amazon denies the allegations in paragraph 28 of the complaint. 2 29. Amazon lacks knowledge or information sufficient to form a belief as to the 3 truth of the allegations of paragraph 29 of the complaint. 4 30. Amazon denies the allegations in paragraph 30 of the complaint. 5 6 31. Amazon denies the allegations in paragraph 31 of the complaint. 7 32. Amazon denies the allegations in paragraph 32 of the complaint. 8 33. Amazon has an anti-counterfeiting policy. The sale on the Amazon.com 9 website of counterfeit products, including any products that have been illegally replicated, 10 reproduced, or manufactured, is strictly prohibited, and Amazon has never knowingly al-11 12 lowed any third party to sell counterfeit products on the Amazon.com website. Amazon 13 denies having sold any products in any manner that infringes any rights of plaintiff. Am-14 azon lacks knowledge or information sufficient to form a belief as to the truth of any re-15 maining allegations that may be made in paragraph 33 of the complaint. 16 17 34. Amazon admits that under procedures implementing its anti-counterfeiting 18 policy it may receive reports of alleged counterfeits, and may remove related listings or 19 take other actions. Amazon lacks knowledge or information sufficient to form a belief as 20 to the truth of any remaining allegations that may be made in paragraph 34 of the complaint. 21 22 35. Amazon denies the allegations in paragraph 35 of the complaint. 23 36. Amazon denies the allegations in paragraph 36 of the complaint. 24 37. Amazon denies the allegations in paragraph 37 of the complaint. 25 38. Amazon lacks knowledge or information sufficient to form a belief as to the 26 27 truth of the allegations of paragraph 38 of the complaint. 5 Case 2:17-cv-01806-SPL Document 30 Filed 08/17/17 Page 6 of 14 1 39. Amazon lacks knowledge or information sufficient to form a belief as to the 2 truth of the allegations of paragraph 39 of the complaint. 3 40. Amazon lacks knowledge or information sufficient to form a belief as to the 4 truth of the allegations of paragraph 40 of the complaint. 5 6 41. Amazon denies the allegations in paragraph 41 of the complaint. 7 42. Amazon denies the allegations in paragraph 42 of the complaint. 8 43. Amazon denies the allegations in paragraph 43 of the complaint. 9 44. Amazon denies that it has committed any acts of infringement. 10 45. Amazon denies the allegations in paragraph 45 of the complaint. 11 12 46. Amazon denies the allegations in paragraph 46 of the complaint. 13 47. Amazon denies the allegations in paragraph 47 of the complaint. 14 48. Amazon denies the allegations in paragraph 48 of the complaint. 15 49. Amazon denies the allegations in paragraph 49 of the complaint. 16 17 50. Amazon denies the allegations in paragraph 50 of the complaint. 18 51. Amazon denies the allegations in paragraph 51 of the complaint. 19 52. Amazon denies the allegations in paragraph 52 of the complaint. 20 53. Amazon denies the allegations in paragraph 53 of the complaint. 21 22 54. Amazon incorporates its responses above, as though fully set forth here. 23 55. Amazon lacks knowledge or information sufficient to form a belief as to the 24 truth of the allegations of paragraph 55 of the complaint. 25 56. Amazon lacks knowledge or information sufficient to form a belief as to the 26 27 truth of the allegations of paragraph 56 of the complaint. 6 Case 2:17-cv-01806-SPL Document 30 Filed 08/17/17 Page 7 of 14 1 57. Amazon denies the allegations in paragraph 57 of the complaint. 2 58. Amazon lacks knowledge or information sufficient to form a belief as to the 3 truth of the allegations of paragraph 58 of the complaint. Amazon denies the remaining 4 allegations of paragraph 58 of the complaint. 5 6 59. Amazon denies the allegations of paragraph 59 of the complaint. 7 60. Amazon denies the allegations in paragraph 60 of the complaint. 8 61. Amazon denies the allegations in paragraph 61 of the complaint. 9 62. Amazon denies the allegations in paragraph 62 of the complaint. 10 63. Amazon denies the allegations in paragraph 63 of the complaint. 11 12 64. Amazon incorporates its responses above, as though fully set forth here. 13 65. Amazon lacks knowledge or information sufficient to form a belief as to the 14 truth of the allegations of paragraph 65 of the complaint. 15 66. Amazon denies the allegations of paragraph 66 of the complaint. 16 17 67. Amazon denies the allegations in paragraph 67 of the complaint. 18 68. Amazon lacks knowledge or information sufficient to form a belief as to the 19 truth of the allegations of paragraph 68 of the complaint. 20 69. Amazon lacks knowledge or information sufficient to form a belief as to the 21 22 truth of the allegations of paragraph 69 of the complaint. 23 70. Amazon denies the allegations in paragraph 70 of the complaint. 24 71. Amazon denies the allegations in paragraph 71 of the complaint. 25 72. Amazon denies the allegations in paragraph 72 of the complaint. 26 27 73. Amazon denies the allegations in paragraph 73 of the complaint. 7 Case 2:17-cv-01806-SPL Document 30 Filed 08/17/17 Page 8 of 14 1 74. Amazon denies the allegations in paragraph 74 of the complaint. 2 75. Amazon denies the allegations in paragraph 75 of the complaint. 3 76. Amazon incorporates its responses above, as though fully set forth here. 4 77. Amazon lacks knowledge or information sufficient to form a belief as to the 5 6 truth of the allegations of paragraph 77 of the complaint. 7 78. Amazon denies the allegations in paragraph 78 of the complaint. 8 79. Amazon denies the allegations in paragraph 79 of the complaint. 9 80. Amazon denies the allegations in paragraph 80 of the complaint. 10 81. Amazon denies the allegations in paragraph 81 of the complaint. 11 12 82. Amazon lacks knowledge or information sufficient to form a belief as to the 13 truth of the allegations of paragraph 82 of the complaint. 14 83. Amazon lacks knowledge or information sufficient to form a belief as to the 15 truth of the allegations of paragraph 83 of the complaint. 16 17 84. Amazon offers customers "A-to-z Guarantee Protection." When Amazon 18 customers buy from Marketplace sellers on the Amazon.com website, the condition of the 19 item, its timely delivery and certain additional refund conditions are guaranteed under the 20 "A-to-z Guarantee." Amazon lacks knowledge or information sufficient to form a belief 21 22 as to the truth of any remaining allegations of paragraph 84 of the complaint. 23 85. Amazon denies the allegation of paragraph 85 of the complaint. 24 86. Amazon denies the allegation of paragraph 86 of the complaint. 25 87. Amazon denies the allegations in paragraph 87 of the complaint. 26 27 88. Amazon denies the allegations in paragraph 88 of the complaint. 8 Case 2:17-cv-01806-SPL Document 30 Filed 08/17/17 Page 9 of 14 1 89. Amazon lacks knowledge or information sufficient to form a belief as to the 2 truth of the allegations of paragraph 89 of the complaint. 3 90. Amazon denies the allegations of paragraph 90 of the complaint. 4 91. Amazon denies the allegations in paragraph 91 of the complaint. 5 6 92. Amazon denies the allegations in paragraph 92 of the complaint. 7 93. Amazon lacks knowledge or information sufficient to form a belief as to the 8 truth of the allegations of paragraph 93 of the complaint. 9 94. Amazon denies the allegations in paragraph 94 of the complaint. 10 95. Amazon denies the allegations in paragraph 95 of the complaint. 11 12 96. Amazon denies the allegations of paragraph 96 of the complaint. 13 97. Amazon understands this paragraph to allege that Amazon "had a duty" of 14 some kind to Kangaroo in relation to "storage and fulfillment fees" involved in FBA ser-15 vices that Amazon has provided to others. Based on this understanding, Amazon denies 16 17 the allegations of paragraph 97 of the complaint. Otherwise, Amazon lacks knowledge or 18 information sufficient to form a belief as to the truth of any allegations that may be made 19 in paragraph 97 of the complaint. 20 98. Amazon denies the allegations in paragraph 98 of the complaint. 21 22 99. Amazon denies the allegations in paragraph 99 of the complaint. 23 100. Amazon denies the allegations in paragraph 100 of the complaint. 24 101. Amazon incorporates its responses above, as though fully set forth here. 25 102. Amazon denies the allegations in paragraph 102 of the complaint 26 27 103. Amazon denies the allegations in paragraph 103 of the complaint. 9 Case 2:17-cv-01806-SPL Document 30 Filed 08/17/17 Page 10 of 14 1 104. Amazon incorporates its responses above, as though fully set forth here. 2 105. Amazon denies the allegations in paragraph 105 of the complaint. 3 106. Amazon denies the allegations in paragraph 106 of the complaint. 4 107. Amazon denies the allegations in paragraph 107 of the complaint. 5 6 108. Amazon denies the allegations in paragraph 108 of the complaint. 7 109. Amazon denies the allegations in paragraph 109 of the complaint. 8 110. Amazon denies the allegations in paragraph 110 of the complaint. 9 111. Amazon denies the allegations in paragraph 111 of the complaint. 10 112. Amazon incorporates its responses above, as though fully set forth here. 11 12 113. Amazon denies it owes Kangaroo any obligation regarding Kangaroo’s sales 13 "expectation." Amazon lacks knowledge or information sufficient to form a belief as to 14 the truth of the remaining allegations of paragraph 113 of the complaint. 15 114. Amazon denies the allegations in paragraph 114 of the complaint. 16 17 115. Amazon denies the allegations in paragraph 115 of the complaint. 18 116. Amazon denies the allegations in paragraph 116 of the complaint. 19 117. Amazon denies the alleged "interference," and denies any other allegations 20 in paragraph 117 of the complaint. 21 22 118. Amazon denies the allegations in paragraph 118 of the complaint. 23 119. Amazon denies the allegations in paragraph 119 of the complaint. 24 GENERAL DENIAL 25 Except as expressly admitted herein, Amazon denies each and every allegation of 26 27 the complaint. 10 Case 2:17-cv-01806-SPL Document 30 Filed 08/17/17 Page 11 of 14 1 ADDITIONAL DEFENSES 2 Amazon alleges and asserts the following defenses in response to the allegations, 3 undertaking the burden of proof only as to those defenses deemed affirmative defenses 4 by law, regardless of how such defenses are denominated herein. In addition to the 5 6 additional defenses described below, subject to its responses above, Amazon specifi-7 cally reserves all rights to allege additional defenses that become known through the 8 course of discovery. 9 FIRST ADDITIONAL DEFENSE 10 (NO INFRINGEMENT) 11 1. Amazon does not infringe and has not infringed plaintiff’s trademarks or 12 copyrights. 13 14 SECOND ADDITIONAL DEFENSE (LACK OF STANDING) 15 2. Plaintiff has not asserted any relationship with Amazon conferring standing 16 17 to sue for alleged "negligence." 18 THIRD ADDITIONAL DEFENSE 19 (FAILURE TO STATE A CLAIM) 20 3. Plaintiff’s complaint and claims for relief fail to state a claim upon which 21 relief can be granted. 22 FOURTH ADDITIONAL DEFENSE 23 (FAILURE TO MITIGATE DAMAGES) 24 4. Plaintiff’s claims may be barred, in whole or in part, by its failure to mitigate 25 damages. 26 27 11 Case 2:17-cv-01806-SPL Document 30 Filed 08/17/17 Page 12 of 14 1 FIFTH ADDITIONAL DEFENSE (DMCA SAFE HARBOR) 2 5. Plaintiff’s alleged copyright claim is barred at least in part under the DMCA, 3 4 for reasons including but not limited to Plaintiff’s failure to provide any valid notice under 5 the DMCA, and/or by Amazon’s compliance with DMCA safe harbor provisions. 6 SIXTH ADDITIONAL DEFENSE 7 (CDA SAFE HARBOR) 8 6. One or more of Plaintiff’s claims may be barred, in whole or in part, by Sec-9 tion 230 of the Communications Decency Act. 10 SEVENTH ADDITIONAL DEFENSE 11 (PREEMPTION) 12 7. One or more of Plaintiff’s purported claims under state law are preempted by 13 14 federal law. 15 EIGHT ADDITIONAL DEFENSE (LACK OF GENERAL PERSONAL JURISDICTION) 16 17 8. Amazon is not subject to general personal jurisdiction in Arizona. As noted 18 above, this is the only basis for personal jurisdiction that Kangaroo appears to assert. 19 NINTH ADDITIONAL DEFENSE 20 (LICENSE) 21 9. On information and belief, one or more of Kangaroo’s "authorized sellers" 22 granted Amazon a license to use the alleged copyrighted works that those sellers provided 23 24 or made available to Amazon. 25 10. On information and belief, one or more of Kangaroo’s "authorized sellers" 26 granted Amazon a license to use one or more of the trademarks asserted in this action. 27 12 Case 2:17-cv-01806-SPL Document 30 Filed 08/17/17 Page 13 of 14 1 2 PRAYER FOR RELIEF 3 WHEREFORE, Amazon prays for the following relief: 4 A. A judgment dismissing plaintiff’s complaint in its entirety, with prejudice, 5 and finding that plaintiff recovers nothing thereon; 6 7 B. A judgment declaring that Amazon has not infringed the asserted trade-8 marks or copyrights; 9 C. That under 17 U.S.C. § 505 the Court award Amazon full costs and ex-10 penses of its defense of plaintiff’s copyright claim, including reasonable attorneys’ fees; 11 12 and 13 D. Such other and further relief as this Court may deem just and proper. 14 DEMAND FOR A JURY TRIAL 15 In accordance with Fed. R. Civ. P. 38(b), Amazon hereby demands a jury trial on 16 17 all issues so triable. 18 DATED this 17th day of August, 2017. 19 By: s/James E. Geringer 20 JAMES E. GERINGER (admitted pro hac vice) 21 james.geringer@klarquist.com 22 KLARQUIST SPARKMAN, LLP 121 SW Salmon Street, Suite 1600 23 Portland, Oregon 97204 Telephone: (503) 595-5300 24 Facsimile: (503) 595-5301 25 Counsel for Defendant 26 AMAZON.COM, INC. 27 13 Case 2:17-cv-01806-SPL Document 30 Filed 08/17/17 Page 14 of 14 1 CERTIFICATE OF SERVICE 2 I hereby certify that on August 17, 2017, I electronically transmitted the foregoing 3 document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a 4 Notice of Electronic Filing to the following CM/ECF registrants: 5 6 RAY K. HARRIS FENNEMORE CRAIG, P.C. 7 2394 East Camelback Road, Suite 600 Phoenix, AZ 85016-3429 8 Telephone: (602) 916-5000 9 Email: rharris@fclaw.com 10 s/James E. Geringer 11 James E. Geringer 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 CERTIFICATE OF SERVICE

MINUTE ORDER: Supplemental Request for Copyright, Trademark, or Patent Information. This case has been designated as a copyright, trademark, or patent case. An answer, amended complaint, or other pleading {{30}} has been filed that may include additional trademarks, patents, or copyrights allegedly violated that were not previously included. Attached to this docket entry are the required form(s) that may need to be completed by the party who filed the above document.</br></br>If your recently filed pleading adds or changes information related to the original patents, trademarks, or copyright allegations, please complete the form that is applicable to this particular case. In some cases, you may need to complete both forms. Within seven (7) days, you must submit the required form(s) to the Clerk's Office. Please complete the form and file it with the Court using the specific event: Notice of Filing - Copyright, Trademark or Patent Information, found under the Other Filings header. Please DO NOT mail the form directly to the Patent or Copyright Office. The Clerk's Office will submit the form.</br></br>If there are no changes to the copyright, trademark, or patent information previously submitted for this case, then the party who filed the above document must file a Notice, within seven (7) days, indicating such using the specific event:Notice of Filing - Copyright, Trademark or Patent Information, found under the Other Filings header

Case 2:17-cv-01806-SPL Document 31 Filed 08/17/17 Page 1 of 2 AO 120 (Rev. 08/10) Mail Stop 8 REPORT ON THE TO: Director of the U.S. Patent and Trademark Office FILING OR DETERMINATION OF AN P.O. Box 1450 ACTION REGARDING A PATENT OR Alexandria, VA 22313-1450 TRADEMARK In Compliance with 35 U.S.C. § 290 and/or 15 U.S.C. § 1116 you are hereby advised that a court action has been filed in the U.S. District Court of Arizona on the following G Trademarks or G Patents. (G the patent action involves 35 U.S.C. § 292.): DOCKET NO. DATE FILED U.S. DISTRICT COURT of Arizona PLAINTIFF DEFENDANT PATENT OR DATE OF PATENT HOLDER OF PATENT OR TRADEMARK TRADEMARK NO. OR TRADEMARK 1 2 3 4 5 In the above—entitled case, the following patent(s)/trademark(s) have been included: DATE INCLUDED INCLUDED BY G Amendment G Answer G Cross Bill G Other Pleading PATENT OR DATE OF PATENT HOLDER OF PATENT OR TRADEMARK TRADEMARK NO. OR TRADEMARK 1 2 3 4 5 In the above—entitled case, the following decision has been rendered or judgement issued: DECISION/JUDGEMENT CLERK (BY) DEPUTY CLERK DATE Brian D. Karth Copy 1—Upon initiation of action, mail this copy to Director Copy 3—Upon termination of action, mail this copy to Director Copy 2—Upon filing document adding patent(s), mail this copy to Director Copy 4—Case file copy Print Save As... Reset Case 2:17-cv-01806-SPL Document 31 Filed 08/17/17 Page 2 of 2 O AO 121 (6/90) TO: Register of Copyrights REPORT ON THE Copyright Office FILING OR DETERMINATION OF AN Library of Congress ACTION OR APPEAL Washington, D.C. 20559 REGARDING A COPYRIGHT In compliance with the provisions of 17 U.S.C. 508, you are hereby advised that a court action or appeal has been filed on the following copyright(s): COURT NAME AND LOCATION G ACTION G APPEAL DOCKET NO. DATE FILED of Arizona PLAINTIFF DEFENDANT COPYRIGHT TITLE OF WORK AUTHOR OR WORK REGISTRATION NO. 1 2 3 4 5 In the above-entitled case, the following copyright(s) have been included: DATE INCLUDED INCLUDED BY G Amendment G Answer G Cross Bill G Other Pleading COPYRIGHT TITLE OF WORK AUTHOR OF WORK REGISTRATION NO. 1 2 3. In the above-entitled case, a final decision was rendered on the date entered below. A copy of the order or judgment together with the written opinion, if any, of the court is attached. COPY ATTACHED WRITTEN OPINION ATTACHED DATE RENDERED G Order G Judgment G Yes G No CLERK (BY) DEPUTY CLERK DATE Brian D. Karth 1) Upon initiation of action, 2) Upon filing of document adding copyright(s), 3) Upon termination of action, mail copy to Register of Copyrights mail copy to Register of Copyrights mail copy to Register of Copyrights DISTRIBUTION: 4) In the event of an appeal, forward copy to Appellate Court 5) Case File Copy Print Save As... Reset

NOTICE of Filing - Copyright, Trademark or Patent Information filed by Amazon.com Incorporated.

Case 2:17-cv-01806-SPL Document 32 Filed 08/18/17 Page 1 of 3 1 JAMES E. GERINGER (admitted pro hac vice) james.geringer@klarquist.com 2 KLARQUIST SPARKMAN, LLP 121 SW Salmon Street, Suite 1600 3 Portland, Oregon 97204 4 Telephone: (503) 595-5300 Facsimile: (503) 595-5301 5 Attorneys for Defendant 6 AMAZON.COM, INC. 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 Kangaroo Manufacturing, Inc., 11 Case No.: CV-17-1806-PHX-SPL 12 Plaintiff, NOTICE REGARDING COPYRIGHT, 13 v. TRADEMARK, AND PATENT INFORMATION 14 Amazon.com, Inc., 15 DEMAND FOR JURY TRIAL Defendant. 16 17 Pursuant to the Court’s Minute Order (ECF No. 31), Amazon.com, Inc. ("Amazon") 18 notifies the Court that, with regard to Amazon’s First Amended Answer (ECF No. 30) filed 19 20 on August 17, 2017, there are no changes to the alleged copyright or trademark information 21 in this case. (There are also no changes to patent information, as there are no patents at 22 issue). 23 DATED this 18th day of August, 2017. 24 25 By: s/James E. Geringer JAMES E. GERINGER 26 (admitted pro hac vice) 27 james.geringer@klarquist.com Case 2:17-cv-01806-SPL Document 32 Filed 08/18/17 Page 2 of 3 1 KLARQUIST SPARKMAN, LLP 121 SW Salmon Street, Suite 1600 2 Portland, Oregon 97204 Telephone: (503) 595-5300 3 Facsimile: (503) 595-5301 4 Attorneys for Defendant 5 AMAZON.COM, INC. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2 Case 2:17-cv-01806-SPL Document 32 Filed 08/18/17 Page 3 of 3 1 CERTIFICATE OF SERVICE 2 I hereby certify that on August 18, 2017, I electronically transmitted the foregoing 3 document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a 4 Notice of Electronic Filing to the following CM/ECF registrants: 5 6 RAY K. HARRIS FENNEMORE CRAIG, P.C. 7 2394 East Camelback Road, Suite 600 Phoenix, AZ 85016-3429 8 Telephone: (602) 916-5000 9 Email: rharris@fclaw.com 10 s/James E. Geringer James E. Geringer 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 CERTIFICATE OF SERVICE

NOTICE of Service of Responses to Mandatory Initial Discovery (MIDP) filed by Plaintiff Kangaroo Manufacturing Incorporated.

Case 2:17-cv-01806-SPL Document 33 Filed 08/24/17 Page 1 of 2 1 FENNEMORE CRAIG, P.C. Ray K. Harris (No. 007408) 2 2394 East Camelback Road, Suite 600 Phoenix, AZ 85016-3429 3 Telephone: (602) 916-5000 Email: aabdo@fclaw.com 4 Email: rharris@fclaw.com 5 Attorneys for Plaintiff Kangaroo Manufacturing, Inc. 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE DISTRICT OF ARIZONA 10 No. CV-17-1806-PHX-SPL Kangaroo Manufacturing, Inc., a 11 Florida corporation Plaintiff, NOTICE OF SERVICE OF MANDATORY 12 INITIAL DISCOVERY PILOT PROJECT v. RESPONSES 13 14 Amazon.com, Inc., a Delaware corporation 15 Defendant. 16 17 Plaintiff Kangaroo Manufacturing, Inc. hereby provides notice that on August 24th, 18 2017 it electronically served its Mandatory Initial Discovery Pilot Project responses to 19 Defendant Amazon.com, Inc. 20 DATED this 24th day of August, 2017. 21 FENNEMORE CRAIG, P.C. 22 23 By:/s/Ray K. Harris Ray K. Harris 24 Attorneys for Plaintiff 25 26 FENNEMORE CRAIG, P.C. PHOENIX 13179510.1/045374.0001 Case 2:17-cv-01806-SPL Document 33 Filed 08/24/17 Page 2 of 2 1 CERTIFICATE OF SERVICE 2 I hereby certify that on August 24, 2017, I electronically transmitted the attached 3 document to the Clerk’s Office using CM/ECF System for filing with a copy mailed and 4 emailed to: 5 Mitchell F. Ducey, Admitted as Pro Hac Vice 6 Robert J. Borowski, Admitted as Pro Hac Vice Masserman & Ducey, LLP 7 15260 Ventura Blvd., Suite 1000 Sherman Oaks, CA 91403 8 mducey@md-llp.com borowski@md-llp.com 9 Attorneys for Plaintiff Kangaroo Manufacturing Inc. 10 James E Geringer 11 Klarquist Sparkman LLP 121 SW Salmon St., Suite 1600 12 Portland OR 97204 james.geringer@klarquist.com 13 Attorney for Defendant Amazon.com, Inc. 14/s/Carolyn Turner 15 An employee of Fennemore Craig, PC 16 17 18 19 20 21 22 23 24 25 26 FENNEMORE CRAIG, P.C. PHOENIX 13179510.1/045374.0001-2-

NOTICE of Service of Responses to Mandatory Initial Discovery (MIDP) filed by Defendant Amazon.com Incorporated.

Case 2:17-cv-01806-SPL Document 34 Filed 08/25/17 Page 1 of 2 1 JAMES E. GERINGER (admitted pro hac vice) james.geringer@klarquist.com 2 KLARQUIST SPARKMAN, LLP 121 SW Salmon Street, Suite 1600 3 Portland, Oregon 97204 4 Telephone: (503) 595-5300 5 Attorneys for Defendant 6 AMAZON.COM, INC. 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 Kangaroo Manufacturing, Inc., Case No.: CV-17-1806-PHX-SPL 11 Plaintiff, 12 AMAZON’S NOTICE OF v. SERVICE OF MANDATORY 13 INITIAL DISCOVERY RESPONSES 14 Amazon.com, Inc., DEMAND FOR JURY TRIAL 15 Defendant. 16 17 Amazon submits this Notice pursuant to ECF 29, the Case Management Order, 18 confirming that Amazon has served its initial discovery responses on plaintiff Kangaroo 19 Manufacturing. 20 DATED this 25th day of August, 2017. 21 22 By:/s/James E. Geringer JAMES E. GERINGER (admitted pro hac vice) 23 james.geringer@klarquist.com 24 KLARQUIST SPARKMAN, LLP 121 SW Salmon Street, Suite 1600 25 Portland, Oregon 97204 Telephone: (503) 595-5300 26 27 Attorneys for Defendant AMAZON.COM, INC. Case 2:17-cv-01806-SPL Document 34 Filed 08/25/17 Page 2 of 2 1 CERTIFICATE OF SERVICE 2 I hereby certify that on August 25, 2017, I electronically transmitted the foregoing 3 document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a 4 Notice of Electronic Filing to the following CM/ECF registrants: 5 6 RAY K. HARRIS FENNEMORE CRAIG, P.C. 7 2394 East Camelback Road, Suite 600 Phoenix, AZ 85016-3429 8 Telephone: (602) 916-5000 9 Email: rharris@fclaw.com 10 s/James E. Geringer James E. Geringer 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 CERTIFICATE OF SERVICE

*MOTION to Substitute Attorney with Client Consent by Kangaroo Manufacturing Incorporated. *Modified to correct event on 10/2/2017

29th Case 2:17-cv-01806-SPL Document 35 Filed 09/29/17 Page 3 of 5 &$53(17(5 +$=/(:22' '(/*$'2%2/(1//3 7LPRWK\ 5 *ULPP (GLWK, 5XGGHU (DVW 6RXWKHUQ $YHQXH 6XLWH 7HPSH $UL]RQD ent 35 Filed 09/29/17 Page 5 of 5 &(57,),&$7(2) 6(59,&(29,, FHUWLI\ WKDW RQ 6HSWHPEHU azon.com 5D\. +DUULV)HQQHPRUH &UDLJ 3 & (DVW &DPHOEDFN 5RDG 6XLWH 3KRHQL[$= Attorneys for Plaintiff 0LWFKHOO) 'XFH\ 5REHUW-DPHV%RURZNVL 0DVVHUPDQ 'XFH\//3 9HQWXUD%OYG 6WH 6KHUPDQ 2DNV &$ Attorneys for Plaintiff

ORDER denying without prejudice {{35}} Motion to Substitute Attorney. Signed by Judge Steven P. Logan on 10/3/17.

Case 2:17-cv-01806-SPL Document 36 Filed 10/03/17 Page 1 of 2 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Kangaroo Manufacturing, Inc.,) No. CV-17-01806-PHX-SPL 9)) 10 Plaintiff,) ORDER vs.) 11)) Amazon.com, Inc.,) 12) 13 Defendant.)) 14) 15 Before the Court is a Stipulation for Substitution of Counsel (Doc. 35) for Plaintiff 16 Kangaroo Manufacturing, Inc. filed by counsel. 17 Counsels’ stipulation fails to comply with Rule 83.3 of the Local Rules of Civil 18 Procedure ("LRCiv"), Rules of Practice of the U.S. District Court for the District of 19 Arizona. LRCiv 83.3(b) provides: 20 With the exception of a change of counsel within the same law firm or governmental law office, no attorney shall be 21 permitted to withdraw or be substituted as attorney of record in any pending action except by formal written order of the 22 Court, supported by written application setting forth the reasons therefor together with the name, last known residence 23 and last known telephone number of the client, as follows: 24 (1) Where such application bears the written approval of the client, it shall be accompanied by a proposed written order 25 and may be presented to the Court ex parte. The withdrawing attorney shall give prompt notice of the entry of such order, 26 together with the name, last known residence and last known telephone number of the client, to all other parties or their 27 attorneys. 28 (2) Where such application does not bear the written approval Case 2:17-cv-01806-SPL Document 36 Filed 10/03/17 Page 2 of 2 of the client, it shall be made by motion and shall be served 1 upon the client and all other parties or their attorneys. The motion shall be accompanied by a certificate of the attorney 2 making the motion that (A) the client has been notified in writing of the status of the case including the dates and times 3 of any court hearings or trial settings, pending compliance with any existing court orders and the possibility of sanctions, 4 or (B) the client cannot be located or for whatever other reason cannot be notified of the pendency of the motion and 5 the status of the case. 6 Accordingly, 7 IT IS ORDERED that the Stipulation (Doc. 35) is denied without prejudice. 8 Dated this 3rd day of October, 2017. 9 10 Honorable Steven P. Logan 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

NOTICE of Appearance by Edith I Rudder on behalf of Kangaroo Manufacturing Incorporated.

Case 2:17-cv-01806-SPL Document 37 Filed 10/19/17 Page 1 of 3 1 CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Attorneys at Law 2 1400 E. Southern Ave., Suite 400 Tempe, Arizona 85282-5691 3 (480) 427-2800, Facsimile (480) 427-2801 minuteentries@carpenterhazlewood.com 4 Mark K. Sahl 025729 Timothy R. Grimm 019110 5 Edith I. Rudder 020650 KANGAROOM.0003 6 Attorneys for Plaintiff 7 IN THE UNITED STATES DISTRICT COURT 8 9 FOR THE DISTRICT OF ARIZONA 10 Kangaroo Manufacturing, Inc., a Florida Case 2:17-cv-01806-SPL 11 corporation, 12 Plaintiff, 13 NOTICE OF APPEARANCE 14 v. 15 Amazon.com, Inc., a Delaware corporation, 16 Defendant. 17 18 19 NOTICE IS HEREBY GIVEN that Timothy R. Grimm and Edith I. Rudder of 20 Carpenter, Hazlewood, Delgado & Bolen, LLP hereby enter their appearance on behalf of 21 the Plaintiff, Kangaroo Manufacturing, Inc. 22 23 All future communications should be directed to the following address: 24 Timothy R. Grimm 25 Edith I. Rudder Carpenter, Hazlewood, Delgado & Bolen, LLP 26 1400 E. Southern Avenue, Suite 400 27 Tempe, AZ 85282 28 1 Case 2:17-cv-01806-SPL Document 37 Filed 10/19/17 Page 2 of 3 1 RESPECTFULLY SUBMITTED this 19th day of October, 2017. 2 3 CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP 4 5 By: Timothy R. Grimm 6 Edith I. Rudder 7 1400 East Southern Avenue, Suite 400 Tempe, Arizona 85282 8 Substituted Attorneys for Plaintiff 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Case 2:17-cv-01806-SPL Document 37 Filed 10/19/17 Page 3 of 3 1 CERTIFICATE OF SERVICE 2 I hereby certify that on October 19, 2017, a true and correct copy of the foregoing 3 document was electronically filed with the Clerk of the United States District Court of the 4 5 District of Arizona by using the CM/ECF system, and that service will be accomplished 6 by the CM/ECF system to all counsel of record. 7 I further certify that I have mailed a true and correct copy of the foregoing 8 9 document by United States Mail, first-class postage prepaid, sealed, and addressed to: 10 James Edward Geringer 11 Klawquist, Sparkman, L.L.P. 1 World Trade Ctr. 12 121 SW Salmon St., Ste. 1600 Portland, Oregon 97204 13 Attorneys for Defendant Amazon.com 14 Ray K. Harris 15 Fennemore Craig, P.C. 16 2394 East Camelback Road, Suite 600 Phoenix, AZ 85016-3429 17 Attorneys for Plaintiff 18 Mitchell F Ducey 19 Robert James Borowksi 20 Masserman & Ducey LLP 15260 Ventura Blvd., Ste. 1000 21 Sherman Oaks, CA 91403 Attorneys for Plaintiff 22 23 24 25 26 27 28 3

*MOTION to Substitute Attorney With Client Consent by Plaintiff Kangaroo Manufacturing Incorporated.

Case 2:17-cv-01806-SPL Document 38 Filed 10/19/17 Page 1 of 3 1 CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Attorneys at Law 2 1400 E. Southern Ave., Suite 400 Tempe, Arizona 85282-5691 3 (480) 427-2800, Facsimile (480) 427-2801 minuteentries@carpenterhazlewood.com 4 Mark K. Sahl 025729 Timothy R. Grimm 019110 5 Edith I. Rudder 020650 KANGAROOM.0003 6 Attorneys for Plaintiff 7 IN THE UNITED STATES DISTRICT COURT 8 9 FOR THE DISTRICT OF ARIZONA 10 Kangaroo Manufacturing, Inc., a Florida Case 2:17-cv-01806-SPL 11 corporation, 12 Plaintiff, APPLICATION FOR SUBSTITUTION 13 OF COUNSEL WITH CLIENT 14 v. CONSENT 15 Amazon.com, Inc., a Delaware corporation, 16 Defendant. 17 18 19 Plaintiff Kangaroo Manufacturing, Inc. hereby applies to the Court to substitute 20 Timothy R. Grimm and Edith I. Rudder of CARPENTER, HAZLEWOOD, DELGADO 21 & BOLEN, LLP for Mitchell F. Ducey and Robert James Borowski of MASSERMAN 22 23 & DUCEY LLP and Ray K. Harris of FENNEMORE CRAIG, P.C., pursuant to the 24 Stipulation with Consent attached hereto as Exhibit 1 and that FENNEMORE CRAIG, 25 P.C. and MASSERMAN & DUCEY LLP may be withdrawn as attorneys of record on 26 27 behalf of the Plaintiff Kangaroo Manufacturing, Inc. 28 1 Case 2:17-cv-01806-SPL Document 38 Filed 10/19/17 Page 2 of 3 1 All future communications should be directed to the following address: 2 Timothy R. Grimm 3 Edith I. Rudder Carpenter, Hazlewood, Delgado & Bolen, LLP 4 1400 E. Southern Avenue, Suite 400 5 Tempe, AZ 85282 Phone: (480) 427-2800 6 Facsimile: (480) 427-2801 E-mail: minuteentries@carpenterhazlewood.com 7 8 RESPECTFULLY SUBMITTED this 19th day of October, 2017. 9 CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP 10 11 By: 12 Timothy R. Grimm Edith I. Rudder 13 1400 East Southern Avenue, Suite 400 14 Tempe, Arizona 85282 Attorneys of Record for Plaintiff 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Case 2:17-cv-01806-SPL Document 38 Filed 10/19/17 Page 3 of 3 1 CERTIFICATE OF SERVICE 2 I hereby certify that on October 19, 2017, a true and correct copy of the foregoing 3 document was electronically filed with the Clerk of the United States District Court of the 4 5 District of Arizona by using the CM/ECF system, and that service will be accomplished 6 by the CM/ECF system to all counsel of record. 7 I further certify that I have mailed a true and correct copy of the foregoing 8 9 document by United States Mail, first-class postage prepaid, sealed, and addressed to: 10 James Edward Geringer 11 Klawquist, Sparkman, L.L.P. 1 World Trade Ctr. 12 121 SW Salmon St., Ste. 1600 Portland, Oregon 97204 13 Attorneys for Defendant Amazon.com 14 Ray K. Harris 15 Fennemore Craig, P.C. 16 2394 East Camelback Road, Suite 600 Phoenix, AZ 85016-3429 17 Attorneys for Plaintiff 18 Mitchell F Ducey 19 Robert James Borowksi 20 Masserman & Ducey LLP 15260 Ventura Blvd., Ste. 1000 21 Sherman Oaks, CA 91403 Attorneys for Plaintiff 22 23 24 25 26 27 28 3

Exhibit A - Stipulation For Substitution of Counsel With Client Consent) *Modified to correct event on 10/20/2017 (REK

EXHIBIT A Exhibit A Page 1 of 5 29th Exhibit A Page 2 of 5 Case 2:17-cv-01806-SPL Document 38-1 Filed 10/19/17 Page 3 of 5 &$53(17(5 +$=/(:22' '(/*$'2%2/(1//3 7LPRWK\ 5 *ULPP (GLWK, 5XGGHU (DVW 6RXWKHUQ $YHQXH 6XLWH 7HPSH $UL]RQD ent 38-1 Filed 10/19/17 Page 5 of 5 &(57,),&$7(2) 6(59,&(29,, FHUWLI\ WKDW RQ 6HSWHPEHU azon.com 5D\. +DUULV)HQQHPRUH &UDLJ 3 & (DVW &DPHOEDFN 5RDG 6XLWH 3KRHQL[$= Attorneys for Plaintiff 0LWFKHOO) 'XFH\ 5REHUW-DPHV%RURZNVL 0DVVHUPDQ 'XFH\//3 9HQWXUD%OYG 6WH 6KHUPDQ 2DNV &$ Attorneys for Plaintiff Exhibit A Page 5 of 5

ORDER denying {{38}} Application for Substitution. Signed by Judge Steven P Logan on 10/23/17.

Case 2:17-cv-01806-SPL Document 39 Filed 10/24/17 Page 1 of 2 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Kangaroo Manufacturing, Inc.,) No. CV-17-01806-PHX-SPL 9)) 10 Plaintiff,) ORDER vs.) 11)) Amazon.com, Inc.,) 12) 13 Defendant.)) 14) 15 Before the Court is an Application for Substitution of Counsel (Doc. 38) for 16 Plaintiff Kangaroo Manufacturing, Inc. filed by counsel Edith I. Rudder and Timothy R. 17 Grimm. 18 Counsels’ motion fails to comply with Rule 83.3 of the Local Rules of Civil 19 Procedure ("LRCiv"), Rules of Practice of the U.S. District Court for the District of 20 Arizona. LRCiv 83.3(b) provides: 21 With the exception of a change of counsel within the same law firm or governmental law office, no attorney shall be 22 permitted to withdraw or be substituted as attorney of record in any pending action except by formal written order of the 23 Court, supported by written application setting forth the reasons therefor together with the name, last known residence 24 and last known telephone number of the client, as follows: 25 (1) Where such application bears the written approval of the client, it shall be accompanied by a proposed written order 26 and may be presented to the Court ex parte. The withdrawing attorney shall give prompt notice of the entry of such order, 27 together with the name, last known residence and last known telephone number of the client, to all other parties or their 28 attorneys. Case 2:17-cv-01806-SPL Document 39 Filed 10/24/17 Page 2 of 2 (2) Where such application does not bear the written approval 1 of the client, it shall be made by motion and shall be served upon the client and all other parties or their attorneys. The 2 motion shall be accompanied by a certificate of the attorney making the motion that (A) the client has been notified in 3 writing of the status of the case including the dates and times of any court hearings or trial settings, pending compliance 4 with any existing court orders and the possibility of sanctions, or (B) the client cannot be located or for whatever other 5 reason cannot be notified of the pendency of the motion and the status of the case. 6 7 Accordingly, 8 IT IS ORDERED that the Application for Substitution (Doc. 38) is denied. 9 Dated this 23rd day of October, 2017. 10 11 Honorable Steven P. Logan United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

* MOTION (Supplemental Application) to Substitute Attorney with Client Consent by Plaintiff Kangaroo Manufacturing Incorporated.

Case 2:17-cv-01806-SPL Document 40 Filed 10/25/17 Page 1 of 4 1 FENNEMORE CRAIG, P.C. Ray K. Harris (No. 007408) 2 2394 East Camelback Road, Suite 600 Phoenix, AZ 85016-3429 3 Telephone: (602) 916-5000 Email: rharris@fclaw.com 4 Attorneys for Plaintiff 5 Kangaroo Manufacturing, Inc. 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE DISTRICT OF ARIZONA 10 No. CV-17-1806-PHX-SPL Kangaroo Manufacturing, Inc., a 11 Florida corporation, Plaintiff, SUPPLEMENTAL APPLICATION FOR 12 SUBSTITUTION OF COUNSEL WITH v. CLIENT CONSENT 13 14 Amazon.com, Inc., a Delaware corporation, 15 Defendant. 16 17 Plaintiff Kangaroo Manufacturing, Inc. renews its application to substitute Timothy 18 R. Grimm and Edith I. Rudder of CARPENTER, HAZLEWOOD, DELGADO & 19 BOLEN, LLP for Ray K. Harris of FENNEMORE CRAIG, P.C. pursuant to L.R.Civ. 20 83.3 (b)(1). 21 Plaintiff Kangaroo Manufacturing, Inc. previously applied to the Court to substitute 22 Timothy R. Grimm and Edith I. Rudder of CARPENTER, HAZLEWOOD, DELGADO 23 & BOLEN, LLP for Ray K. Harris of FENNEMORE CRAIG, P.C. This Supplemental 24 Application for Substitution of Counsel with Client Consent incorporates by reference the 25 client consent presented in the October 19, 2017 Application for Substitution of Counsel 26 with Client Consent (Doc. 38). FENNEMORE CRAIG, P.C. PHOENI X 13350108.1/045374.0001 Case 2:17-cv-01806-SPL Document 40 Filed 10/25/17 Page 2 of 4 1 The October 19, 2017 Application (Doc. 38) was denied by Minute Entry dated 2 (Doc. 39). Although the October 19, 2017 Application included the required Consent 3 signed by the client, it did not (1) state the reason for the substitution and withdrawal, or 4 (2) state the last known address and telephone number of the client. 5 Reason for the substitution. Plaintiff seeks the substitution and withdrawal to 6 consolidate all of its legal work, including all cases currently pending, with one firm: 7 CARPENTER, HAZLEWOOD, DELGADO & BOLEN, LLP. 8 Client’s last known address. 9 Kangaroo Manufacturing Inc, 7350 S. Kyrene Rd. Suite 104 10 Tempe AZ, 85283 (480) 566-8686 11 Upon approval of this Supplemental Application, all future communications on 12 behalf of Plaintiff should be directed to the substituted attorneys at the following 13 address: 14 Timothy R. Grimm 15 Edith I. Rudder 16 Carpenter, Hazlewood, Delgado & Bolen, LLP 1400 E. Southern Avenue, Suite 400 17 Tempe, AZ 85282 Phone: (480) 427-2800 18 Facsimile: (480) 427-2801 19 E-mail: minuteentries@carpenterhazlewood.com 20 21 22 23 24 25 26 FENNEMORE CRAIG, P.C. PHOENI X 13350108.1/045374.0001-2-Case 2:17-cv-01806-SPL Document 40 Filed 10/25/17 Page 3 of 4 1 DATED this 25th day of October, 2017. 2 3 FENNEMORE CRAIG, P.C. 4 5 By:/s/Ray K. Harris Ray K. Harris 6 Attorneys for Plaintiff 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 FENNEMORE CRAIG, P.C. PHOENI X 13350108.1/045374.0001-3-Case 2:17-cv-01806-SPL Document 40 Filed 10/25/17 Page 4 of 4 1 CERTIFICATE OF SERVICE 2 I hereby certify that on October 25, 2017, I electronically transmitted the attached 3 document to the Clerk’s Office using CM/ECF System for filing with a copy mailed and 4 emailed to: 5 Mitchell F. Ducey, Admitted as Pro Hac Vice 6 Robert J. Borowski, Admitted as Pro Hac Vice Masserman & Ducey, LLP 7 15260 Ventura Blvd., Suite 1000 Sherman Oaks, CA 91403 8 mducey@md-llp.com borowski@md-llp.com 9 Attorneys for Plaintiff Kangaroo Manufacturing Inc. 10 James E Geringer Klarquist Sparkman LLP 11 121 SW Salmon St., Suite 1600 Portland OR 97204 12 james.geringer@klarquist.com Attorney for Defendant Amazon.com, Inc. 13 Timothy R. Grimm 14 Edith I. Rudder Carpenter Hazlewood Delgado & Bolen PLC 15 1400 East Southern Avenue, Suite 400 16 Tempe, Arizona 85282 Substituted Attorneys for Plaintiff 17 18/s/Vicki L. Morgan 19 An employee of Fennemore Craig, PC 20 21 22 23 24 25 26 FENNEMORE CRAIG, P.C. PHOENI X 13350108.1/045374.0001-4-

Text of Proposed Order proposed Order) * Modified to correct event; attorney noticed on 10/26/2017 (LAD

Case 2:17-cv-01806-SPL Document 40-1 Filed 10/25/17 Page 1 of 2 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 Kangaroo Manufacturing, Inc., a Florida 10 corporation, 11 Case 2:17-cv-01806-SPL Plaintiff, 12 v. CONSENT ORDER GRANTING 13 SUBSTITUTION OF COUNSEL 14 Amazon.com, Inc., a Delaware corporation, 15 Defendant. 16 17 Pursuant to the Supplemental Application for Substitution of Counsel filed by 18 Plaintiff Kangaroo Manufacturing Inc., and Client Consents attached to the prior 19 Application (Doc. 38), 20 IT IS ORDERED that the substitution of counsel is hereby approved and 21 CARPENTER HAZLEWOOD DELGADO & BOLEN, LLP is hereby substituted for 22 FENNEMORE CRAIG, PC as counsel for Plaintiff Kangaroo Manufacturing, Inc. 23 All future communications should be directed to the following counsel for 24 Plaintiff Kangaroo Manufacturing Inc.: 25 26 27 28 1 13350218.1/045374.0001 Case 2:17-cv-01806-SPL Document 40-1 Filed 10/25/17 Page 2 of 2 1 Timothy R. Grimm Edith I. Rudder 2 Carpenter, Hazlewood, Delgado & Bolen, LLP 3 1400 E. Southern Avenue, Suite 400 Tempe, AZ 85282 4 Telephone: 480.427.2800 5 Facsimile: 480.427.2801 minuteentries@carpenterhazlewood.com 6 7 DATED this day of October, 2017. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 13350218.1/045374.0001

ORDER granting {{40}} Motion/Application to Substitute Attorney. Timothy R. Grimm and Edith I. Rudder are substituted as counsel of record for Plaintiff Kangaroo Manufacturing, Inc. in place of Ray K. Harris. Signed by Judge Steven P Logan on 10/26/17.

Case 2:17-cv-01806-SPL Document 41 Filed 10/27/17 Page 1 of 1 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Kangaroo Manufacturing, Inc.,) No. CV-17-01806-PHX-SPL) 9) Plaintiff,) ORDER 10 vs.)) 11) Amazon.com, Inc.,) 12) Defendant.) 13)) 14 15 The Court having reviewed the Supplemental Application for Substitution of 16 Counsel (Doc. 40), 17 IT IS ORDERED that the Application for Substitution (Doc. 40) is granted. 18 IT IS FURTHER ORDERED that Timothy R. Grimm and Edith I. Rudder of 19 Carpenter, Hazlewood, Delgado & Bolen, LLP are substituted as counsel of record for 20 Plaintiff Kangaroo Manufacturing, Inc. in place of Ray K. Harris of Fennemore Craig, 21 P.C. 22 Dated this 26th day of October, 2017. 23 24 Honorable Steven P. Logan United States District Judge 25 26 27 28

STIPULATION For Entry Of Protective Order by Amazon.com Incorporated.

Case 2:17-cv-01806-SPL Document 42 Filed 11/20/17 Page 1 of 3 1 JAMES E. GERINGER (admitted pro hac vice) james.geringer@klarquist.com 2 KLARQUIST SPARKMAN, LLP 3 121 SW Salmon Street, Suite 1600 Portland, Oregon 97204 4 Facsimile: (503) 595-5301 5 Telephone: (503) 595-5300 6 Counsel for Defendant 7 AMAZON.COM, INC. 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE DISTRICT OF ARIZONA 10 11 Kangaroo Manufacturing, Inc., 12 Case No.: CV-17-1806-PHX-SPL Plaintiff, 13 14 v. STIPULATION FOR ENTRY OF PROTECTIVE ORDER 15 Amazon.com, Inc., 16 Defendant. DEMAND FOR JURY TRIAL 17 18 19 20 Plaintiff Kangaroo Manufacturing, Inc. and Defendant Amazon.com, Inc., by and 21 through undersigned counsel, request and stipulate to the entry of the attached Protective 22 Order, which is tailored to protect specific confidential information requested in discovery. 23 24 25 26 27 1 Case 2:17-cv-01806-SPL Document 42 Filed 11/20/17 Page 2 of 3 DATED this 20th day of November 2017. 1 2 KLARQUIST SPARKMAN, LLP CARPENTER, HAZLEWOOD, DELGADO & BOLEN, LLP 3 4 s/James E. Geringer s/Timothy R. Grimm 5 JAMES E. GERINGER TIMOTHY R. GRIMM (admitted pro hac vice) EDITH I. RUDDER 6 james.geringer@klarquist.com minuteentries@carpenterhazlewood.com 7 121 SW Salmon Street, Suite 1600 1400 E. Southern Avenue, Suite 400 Portland, Oregon 97204 Tempe, AZ 85282 8 Telephone: (503) 595-5300 Telephone: (480) 427-2800 Facsimile: (503) 595-5301 Facsimile (480) 427-2801 9 10 Counsel for Defendant Counsel for Plaintiff AMAZON.COM, INC. KANGAROO MANUFACTURING INC. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2 Case 2:17-cv-01806-SPL Document 42 Filed 11/20/17 Page 3 of 3 1 CERTIFICATE OF SERVICE 2 I hereby certify that on November 20, 2017, I electronically transmitted the 3 foregoing document to the Clerk’s Office using the CM/ECF System for filing and 4 transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: 5 6 TIMOTHY R. GRIMM EDITH I. RUDDER 7 minuteentries@carpenterhazlewood.com CARPENTER, HAZLEWOOD, 8 DELGADO & BOLEN, LLP 9 1400 E. Southern Avenue, Suite 400 Tempe, AZ 85282 10 Telephone: (480) 427-2800 Facsimile (480) 427-2801 11 12 13 s/James E. Geringer 14 James E. Geringer 15 Counsel for Defendant AMAZON.COM, INC. 16 17 18 19 20 21 22 23 24 25 26 27 CERTIFICATE OF SERVICE

Text of Proposed Order - Protective Order

Case 2:17-cv-01806-SPL Document 42-1 Filed 11/20/17 Page 1 of 9 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF ARIZONA 10 Case No. CV-17-1806-PHX-SPL Kangaroo Manufacturing, Inc., a 11 Florida corporation, 12 Plaintiff, PROTECTIVE ORDER 13 v. 14 Amazon.com, Inc., a Delaware corporation, 15 Defendant. 16 17 This case is subject to the Mandatory Initial Discovery Pilot Project ("MIDP 18 Project"). Kangaroo Manufacturing, Inc. ("Kangaroo") and Amazon.com, Inc. 19 ("Amazon") have exchanged MIDP Responses pursuant to the Case Management Order 20 (ECF 29). The parties now stipulate to (and jointly request) entry of this Protective Order 21 pursuant to Fed. R. Civ. P. 26(c) so that they may augment their MIDP Responses with 22 specific information, the public disclosure of which would be harmful to the disclosing 23 party. Specific examples of this information include: 24-In response to Kangaroo’s requests, Amazon wishes to protect detailed sales 25 information, including revenue and cost information, relating specifically to 26 accused products and sales. This information is not public, and includes sales Case 2:17-cv-01806-SPL Document 42-1 Filed 11/20/17 Page 2 of 9 1 both by Amazon and by third parties on Amazon.com. Competitors would gain 2 an unfair advantage if they were able to see Amazon’s financial information for 3 the accused products. 4-Amazon wishes to preserve the confidentiality of its internal anti-counterfeiting 5 procedures, and procedures for reviewing potential abuse of Amazon’s policies 6 regarding product reviews. Amazon would suffer likely harm if third parties, 7 including potential counterfeiters and alleged wrong-doers, were able to review 8 details of Amazon’s internal procedures. 9-In response to Amazon’s requests, Kangaroo wishes to produce its own detailed 10 sales, and its marketing and advertising expenses, to support allegations in the 11 complaint regarding the strength of the trademarks asserted in the complaint. 12 Kangaroo also wishes to disclose nonpublic information regarding its reseller 13 network, including ownership and marketing strategies. This information is not 14 public, and Kangaroo’s competitors would gain an unfair advantage if they 15 were able to see this commercially valuable proprietary information. 16-Kangaroo also wishes to produce, but preserve the confidentiality of, 17 documents reflecting details of business done by Kangaroo resellers on the 18 Amazon.com website, including the details of transactions with Amazon for 19 fulfillment services. This is competitively sensitive information which would 20 harm Amazon and/or Kangaroo if disclosed to the general public, by revealing 21 commercially sensitive and proprietary details of their respective business 22 models and dealings. 23-Each party expects to subpoena third parties for discovery of commercially 24 sensitive information in this case, including specific sales information and 25 product sources. 26 Page 2-PROTECTIVE ORDER, CV-17-1806-PHX-SPL Case 2:17-cv-01806-SPL Document 42-1 Filed 11/20/17 Page 3 of 9 1 Therefore, good cause for an order tailored to protect the particular interests at hand 2 having been shown, 3 IT IS HEREBY ORDERED THAT: 4 Definition of Confidential Information 5 1. The term "Confidential Information" as used herein includes that portion of 6 the information produced in supplemental Mandatory Initial Discovery in this case, or by 7 third parties pursuant to subpoena under Rule 45, that the designating Party believes in 8 good faith constitutes or contains confidential and proprietary financial or commercial 9 information that the designating Party has maintained in confidence. Documents 10 (including ESI) designated as "Confidential," or "Confidential Attorneys Eyes Only" and 11 all copies, recordings, abstracts, excerpts, summaries, analyses or other writings that 12 contain, reflect, or reveal any portion of such information, shall be subject to this 13 Protective Order. 14 Designation of Confidential Information 15 2. (a) If a Party determines in good faith that specific information produced 16 by the Party or a third party in this action is "Confidential Information", such Confidential 17 Information shall be so designated by affixing a "Confidential" stamp thereto or a 18 "Confidential Attorneys Eyes Only" stamp thereto. 19 (b) This Order also applies to any information produced by or obtained in this 20 action from any third parties. Information produced by a third party may be designated as 21 "Confidential" or "Confidential Attorneys Eyes Only" by the third party producing such 22 information by either: (1) affixing a "Confidential" or "Confidential Attorneys Eyes 23 Only" stamp thereto; or (2) providing a list of documents to be designated "Confidential" 24 or "Confidential Attorneys Eyes Only" to the Parties. Any third party designating 25 information as "Confidential" or "Confidential Attorneys Eyes Only" in accordance with 26 this order thereby agrees to be bound by the order and to be subject to the jurisdiction of Page 3-PROTECTIVE ORDER, CV-17-1806-PHX-SPL Case 2:17-cv-01806-SPL Document 42-1 Filed 11/20/17 Page 4 of 9 1 this Court for purposes of enforcing this Order. 2 (c) The failure of a Party to object to the designation of information produced in 3 this action as Confidential Information is not an agreement by the Party that the 4 information so designated is in fact Confidential Information. 5 (d) This Order shall be without prejudice to the right of any Party to oppose 6 production of any document or information for any reason other than confidentiality. 7 3. Information Designated Confidential. 8 Material stamped "CONFIDENTIAL" shall only be copied for use in this action, 9 subject to the terms of this Stipulated Protective Order. The Parties shall not supply those 10 documents designated as "CONFIDENTIAL" to anyone other than: 11 (a) the Court and its staff and any jury empaneled by this Court in this action; 12 (b) the Parties, including officers, directors, and employees of the Parties; 13 (c) court reporters and their staff in performance of their duties in connection to 14 this action; 15 (d) legal counsel for the Parties and such legal counsel's staff, in this action 16 ("the Lawsuit") or in the related arbitration between Pennies 2 Platinum 17 (aka Yagoozon) and Amazon.com LLC ("the Arbitration"); 18 (e) outside expert consultants and witnesses; 19 (f) any deponent who authored or previously received the document; or 20 (g) as may otherwise be required by law, order of the Court or mutual 21 agreement. 22 4. Information Designated Confidential Attorneys Eyes Only 23 (a) Any Party or a third party may determine in good faith that Confidential 24 Information produced by the Party or a third party in this action contains highly sensitive 25 business or personal information, the disclosure of which is highly likely to cause 26 significant harm to an individual or to the business or competitive position of the Page 4-PROTECTIVE ORDER, CV-17-1806-PHX-SPL Case 2:17-cv-01806-SPL Document 42-1 Filed 11/20/17 Page 5 of 9 1 designating party. Such material shall be stamped "CONFIDENTIAL ATTORNEYS’ 2 EYES ONLY" and shall only be copied for use in this action, subject to the terms of this 3 Stipulated Protective Order. 4 (b) The Parties shall not supply those documents designated as 5 "CONFIDENTIAL ATTORNEYS’ EYES ONLY" to "the Parties including officers, 6 directors and employees of the Parties," including in-house legal counsel for the Parties 7 unless in-house counsel has signed a Consent To Be Bound By Stipulated Protective 8 Order in the form shown in Attachment A. "CONFIDENTIAL ATTORNEYS’ EYES 9 ONLY" material may be disclosed to the other persons authorized to received 10 "CONFIDENTIAL" material as described in Paragraph 3, subject to the terms of this 11 Stipulated Protective Order. However, "legal counsel for the parties and such legal 12 counsel's staff" as set forth in Paragraph 3(d), shall for purposes of "CONFIDENTIAL 13 ATTORNEYS' EYES ONLY" material refer only to outside legal counsel who are of 14 record for the Parties in the Lawsuit or the Arbitration, in-house counsel who have signed 15 a Consent To Be Bound By Stipulated Protective Order in the form shown in Attachment 16 A. and said counsel's staff. 17 (c) Counsel for a Party may give advice and opinions to his or her client solely 18 relating to the above-captioned action based on his or her evaluation of Confidential 19 Attorneys Eyes Only material, provided that such advice and opinions shall not reveal the 20 content of such material except by prior written agreement of counsel for the Parties, or by 21 Order of the Court. 22 Use of Confidential Information 23 5. The Parties agree that any document containing Confidential Information 24 (or any copy thereof, or any notes or memoranda of any kind which contain such 25 information) will not leave the possession of those permitted to receive access to it, other 26 than as provided for in this Order. Page 5-PROTECTIVE ORDER, CV-17-1806-PHX-SPL Case 2:17-cv-01806-SPL Document 42-1 Filed 11/20/17 Page 6 of 9 1 6. The Parties agree: (a) not to disclose to any third party any Confidential 2 Information (or any copy thereof, or any notes or memoranda of any kind which contain 3 such information) produced or obtained in this action except as expressly permitted by 4 this Order; (b) to use such information solely for the purpose of preparing for and 5 conducting this action in good faith, and not for any other purpose whatsoever; and (c) to 6 use their best efforts to preserve the confidentiality of such Confidential Information. 7 7. Each expert or consultant to whom Confidential Information is to be given 8 under paragraphs 3(e) above shall first execute a consent to be bound by this Order in the 9 form of Attachment "A." No Confidential Information shall be shared with a prospective 10 expert or consultant until the earlier of (a) written consent from the designating party, or 11 (b) the passage of 10 business days from the disclosure of the prospective expert or 12 consultant’s name, address, employer, past 10 years of work history, and listing of prior 13 expert testimony, provided no party has objected in writing to such disclosure within that 14 10 business day period. If either side objects, it must state its reasons in writing, and if the 15 parties are unable to resolve their dispute without motion practice, the party objecting to 16 the disclosure shall bear the burden of persuasion that the proposed disclosure should not 17 occur. 18 8. Confidential Information may be offered into evidence at trial or offered in 19 any hearing subject to evidentiary rules and procedures to be established by the Parties 20 and the Court to govern the use and protection of such Confidential Information. 21 9. If the Parties and their Counsel seek to submit, present or file with the Court 22 any document or information designated "Confidential" or "Confidential Attorneys Eyes 23 Only" (including but not limited to deposition transcripts, discovery responses, 24 memoranda, filings and/or exhibits), before any Party files any document under seal such 25 party shall seek leave of Court and shall show "compelling reasons" (dispositive motion) 26 or "good cause" (non-dispositive motion) for filing under seal. See Kamakana v. City and Page 6-PROTECTIVE ORDER, CV-17-1806-PHX-SPL Case 2:17-cv-01806-SPL Document 42-1 Filed 11/20/17 Page 7 of 9 1 County of Honolulu, 447 F.3d 1172, 1179-80 (9th Cir. 2006). Additionally, a Party 2 seeking to file under seal shall, within the applicable deadline, file a redacted, unsealed 3 version of any motion, response or reply if such party is waiting for a ruling from the 4 Court on filing an unredacted, sealed version of the same document.1 See also Arizona 5 District Court LR Civ. 5.6. Should the Court rules that such documents not be filed under 6 seal, such ruling and filing will not otherwise vitiate the "Confidential" or "Confidential 7 Attorneys Eyes Only" designation and corresponding conditions set forth in Paragraphs 3-8 4 above. 9 Dispute Resolution 10 12. If a Party objects to the designation of information as "Confidential" or 11 "Confidential Attorneys Eyes Only" that Party shall first make its objection known to the 12 designating Party, and request any change of designation that is desired. The Parties will 13 attempt to resolve any challenge in good faith on an expedient and informal basis. If the 14 designating Party refuses the request, or if a resolution is not achieved within fifteen (15) 15 business days after receipt of such notice, then the objecting Party may file a motion with 16 the Court for an Order changing or removing the designation at issue. The Party 17 designating the information as "Confidential" or "Confidential Attorneys Eyes Only" shall 18 have the burden of showing good cause as to why the designation is proper under this 19 Order. The information at issue shall continue to be treated as designated until the Court 20 orders otherwise. 21 Duration 22 13. The obligations set forth in this Order shall survive and continue to be 23 binding after the conclusion of this action. This Court shall retain jurisdiction to enforce 24 this Order. 25 1 A party seeking to use the other party’s Confidential Information to support or oppose a 26 motion shall comply with LR Civ 5.6. Page 7-PROTECTIVE ORDER, CV-17-1806-PHX-SPL Case 2:17-cv-01806-SPL Document 42-1 Filed 11/20/17 Page 8 of 9 1 14. Confidential Information contained in counsel’s files, privileged documents 2 and/or work product need not be returned or destroyed, but counsels’ files shall be stored 3 in a manner which clearly indicates that the information contained in the files includes 4 Confidential Information. All Parties or persons that received Confidential Information, 5 including witnesses, deponents, consultants and all others who received Confidential 6 Information, shall certify, in writing, that all Confidential Information in their possession 7 has been destroyed or returned with the certification. These certifications shall be 8 delivered to the Party that produced the Confidential Information within thirty (30) 9 calendar days after termination of the action. 10 Modification 11 15. Any Party may move for relief from any provisions of this Order or seek or 12 agree to different or additional protection for any particular material or information. Each 13 Party or person bound by this Order shall be entitled to move for amendment, change or 14 other modification of this Order for good cause after notice to the other Party. Prior to 15 any such motion for modification, counsel shall attempt in good faith to reach agreement 16 without resort to the Court. 17 18 19 20 21 22 23 24 25 26 Page 8-PROTECTIVE ORDER, CV-17-1806-PHX-SPL Case 2:17-cv-01806-SPL Document 42-1 Filed 11/20/17 Page 9 of 9 1 ATTACHMENT A 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF ARIZONA 4 Kangaroo Manufacturing, Inc., a Case No. CV-17-1806-PHX-SPL 5 Florida corporation, 6 Plaintiff, 7 v. 8 Amazon.com, Inc., a Delaware 9 corporation, 10 Defendant. 11 CONSENT TO BE BOUND BY STIPULATED PROTECTIVE ORDER 12 I acknowledge that I wish to receive Confidential Information that is protected by 13 the Stipulated Protective Order entered in this case. I have read the Stipulated Protective 14 Order and understand my obligations in connection with the same. 15 I agree that I will not retain, use or disclose any Confidential Information in my 16 possession except as allowed by the Stipulated Protective Order, and that I will abide by 17 all of the terms and conditions of the Stipulated Protective Order, including any 18 subsequent order of the Court. If I have any questions concerning those terms or 19 conditions, I will direct them to the attorney(s) who provided the Confidential 20 Information, and I will follow their instructions and guidance concerning the use and 21 disclosure of any Confidential Information that I have received or may receive in the 22 future. 23 Date: _______________ Signature: 24 Printed Name: 25 26 Page 9-PROTECTIVE ORDER, CV-17-1806-PHX-SPL

NOTICE of Service of Supplemental Mandatory Initial Discovery Responses (MIDP) filed by Defendant Amazon.com Incorporated.

1 JAMES E. GERINGER (admitted pro hac vice) james.geringer@klarquist.com 2 KLARQUIST SPARKMAN, LLP 121 SW Salmon Street, Suite 1600 3 Portland, Oregon 97204 4 Telephone: (503) 595-5300 5 Of Attorneys for Defendant 6 AMAZON.COM, INC. 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 Kangaroo Manufacturing, Inc., Case No.: CV-17-1806-PHX-SPL 11 Plaintiff, 12 AMAZON'S NOTICE OF v. SERVICE OF SUPPLEMENTAL 13 MANDATORY INITIAL DISCOVERY 14 Amazon.com, Inc., RESPONSES 15 Defendant. DEMAND FOR JURY TRIAL 16 17 Amazon submits this Notice pursuant to ECF 29, the Case Management Order, part 18 19 III, confirming that Amazon served supplemental initial discovery responses on plaintiff 20 Kangaroo Manufacturing, Inc. on January 17 and 25, 2018. 21 DATED this 29th day of January, 2018. 22 By: /s/James E. Geringer 23 JAMES E. GERINGER (admitted pro hac vice) 24 james.geringer@klarquist.com KLARQUIST SPARKMAN, LLP 25 121 SW Salmon Street, Suite 1600 Portland, Oregon 97204 26 Telephone: (503) 595-5300 27 Of Attorneys for Defendant AMAZON.COM, INC. 1 CERTIFICATE OF SERVICE 2 I hereby certify that on January 29, 2018, I electronically transmitted the foregoing 3 document to the Clerk's Office using the CM/ECF System for filing and transmittal of a 4 Notice of Electronic Filing to the following CM/ECF registrants: 5 6 TIMOTHY R. GRIMM EDITH I. RUDDER 7 minuteentries@carpenterhazlewood.com eadie.rudder@carpenterhazlewood.com 8 tim@carpenterhazlewood.com 9 1400 E. Southern Avenue, Suite 400 Tempe, AZ 85282 10 Telephone: (480) 427-2800 Facsimile (480) 427-2801 11 12 s/James E. Geringer 13 James E. Geringer 14 15 16 17 18 19 20 21 22 23 24 25 26 27 CERTIFICATE OF SERVICE

REPORT of Settlement Talks/Discussions (Joint) by Amazon.com Incorporated.

1 JAMES E. GERINGER (admitted pro hac vice) james.geringer@klarquist.com 2 KLARQUIST SPARKMAN, LLP 3 121 SW Salmon Street, Suite 1600 Portland, Oregon 97204 4 Facsimile: (503) 595-5301 5 Telephone: (503) 595-5300 6 Of Counsel for Defendant 7 AMAZON.COM, INC. 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE DISTRICT OF ARIZONA 10 11 Kangaroo Manufacturing, Inc., 12 Case No.: CV-17-1806-PHX-SPL Plaintiff, 13 14 v. JOINT REPORT ON SETTLEMENT TALKS 15 Amazon.com, Inc., 16 Defendant. 17 18 Pursuant to Section 5 of the Case Management Order, Plaintiff Kangaroo 19 Manufacturing, Inc. and Defendant Amazon.com, Inc., by and through undersigned 20 21 counsel, jointly report that they have met in person and engaged in good faith settlement 22 talks. The discussions were constructive but not successful. The parties do not request 23 assistance from the Court in seeking settlement of the case at this time. The parties plan to 24 continue their discussions. 25 26 27 1 st 1 Respectfully submitted this 31 day of January 2018. 2 KLARQUIST SPARKMAN, LLP CARPENTER, HAZLEWOOD, DELGADO & BOLEN, LLP 3 4 s/James E. Geringer s/Timothy R. Grimm 5 JAMES E. GERINGER TIMOTHY R. GRIMM 6 (admitted pro hac vice) EDITH I. RUDDER james.geringer@klarquist.com minuteentries@carpenterhazlewood.com 7 121 SW Salmon Street, Suite 1600 1400 E. Southern Avenue, Suite 400 Portland, Oregon 97204 Tempe, AZ 85282 8 Telephone: (503) 595-5300 Telephone: (480) 427-2800 9 Facsimile: (503) 595-5301 Facsimile (480) 427-2801 10 Counsel for Defendant Counsel for Plaintiff AMAZON.COM, INC. KANGAROO MANUFACTURING INC. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2 1 CERTIFICATE OF SERVICE 2 I hereby certify that on January 31, 2018, I electronically transmitted the foregoing 3 document to the Clerk's Office using the CM/ECF System for filing and transmittal of a 4 Notice of Electronic Filing to the following CM/ECF registrants: 5 6 TIMOTHY R. GRIMM EDITH I. RUDDER 7 minuteentries@carpenterhazlewood.com eadie.rudder@carpenterhazlewood.com 8 tim@carpenterhazlewood.com 9 CARPENTER, HAZLEWOOD, DELGADO & BOLEN, LLP 10 1400 E. Southern Avenue, Suite 400 Tempe, AZ 85282 11 Telephone: (480) 427-2800 12 Facsimile (480) 427-2801 13 14 s/James E. Geringer 15 James E. Geringer 16 17 18 19 20 21 22 23 24 25 26 27 CERTIFICATE OF SERVICE

NOTICE of Service of Supplemental Mandatory Initial Discovery Responses (MIDP) filed by Plaintiff Kangaroo Manufacturing Incorporated.

1 CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Attorneys at Law 2 1400 E. Southern Ave., Suite 400 Tempe, Arizona 85282-5691 3 (480) 427-2800, Facsimile (480) 427-2801 minuteentries@carpenterhazlewood.com 4 Mark K. Sahl 025729 Timothy R. Grimm 019110 5 Edith I. Rudder 020650 KANGAROOM.0003 6 Attorneys for Plaintiff 7 IN THE UNITED STATES DISTRICT COURT 8 9 FOR THE DISTRICT OF ARIZONA 10 Kangaroo Manufacturing, Inc., a Florida Case 2:17-cv-01806-SPL 11 corporation, 12 Plaintiff, 13 PLAINTIFF'S NOTICE OF 14 v. SERVICE OF DISCLOSURES 15 Amazon.com, Inc., a Delaware corporation, 16 Defendant. 17 18 19 Plaintiff, Kangaroo Manufacturing, Inc., submits this Notice pursuant to [Doc 29], 20 the Case Management Order, Part II, confirming that Kangaroo Manufacturing served 21 ESI initial disclosures on 10/3/2017, [KANGAROOM0003 – 000001 – 22 23 KANGAROOM0003 – 000041], and supplemental disclosures on 12/22/2017, 24 [KANGAROOM.0003 – 000042 – KANGAROOM.0003 – 001156], and 1/15/2018, 25 [KANGAROM.0003 – 001157 – KANGAROOM.0003 – 001166], on Defendant, 26 27 Amazon.com, Inc. 28 /// 1 1 RESPECTFULLY SUBMITTED this 7th day of February, 2018. 2 CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP 3 4 By: 5 Timothy R. Grimm Edith I. Rudder 6 1400 East Southern Avenue, Suite 400 7 Tempe, Arizona 85282 Substituted Attorneys for Plaintiff 8 9 CERTIFICATE OF SERVICE 10 I hereby certify that on February 7, 2018, a true and correct copy of the foregoing 11 document was electronically filed with the Clerk of the United States District Court of the 12 District of Arizona by using the CM/ECF system, and that service will be accomplished 13 14 by the CM/ECF system to all counsel of record. 15 I further certify that I have mailed a true and correct copy of the foregoing 16 document by United States Mail, first-class postage prepaid, sealed, and addressed to: 17 18 James Edward Geringer Klawquist, Sparkman, L.L.P. 19 1 World Trade Ctr. 20 121 SW Salmon St., Ste. 1600 Portland, Oregon 97204 21 Attorneys for Defendant Amazon.com 22 23 24 25 26 27 28 2

NOTICE of Service of Discovery filed by Kangaroo Manufacturing Incorporated.

1 CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Attorneys at Law 2 1400 E. Southern Ave., Suite 400 Tempe, Arizona 85282-5691 3 (480) 427-2800, Facsimile (480) 427-2801 minuteentries@carpenterhazlewood.com 4 Mark K. Sahl 025729 Timothy R. Grimm 019110 5 Edith I. Rudder 020650 KANGAROOM.0003 6 Attorneys for Plaintiff 7 IN THE UNITED STATES DISTRICT COURT 8 9 FOR THE DISTRICT OF ARIZONA 10 Kangaroo Manufacturing, Inc., a Florida Case 2:17-cv-01806-SPL 11 corporation, 12 Plaintiff, 13 PLAINTIFF'S NOTICE OF 14 v. SERVICE OF DISCOVERY 15 Amazon.com, Inc., a Delaware corporation, 16 Defendant. 17 18 19 Plaintiff, Kangaroo Manufacturing, Inc., submits this Notice confirming that 20 Kangaroo Manufacturing served Plaintiff's First Request For Production of Documents 21 upon Defendant Amazon.com, Inc., on February 15, 2018. 22 23 … 24 … 25 … 26 27 … 28 … 1 1 RESPECTFULLY SUBMITTED this 15th day of February, 2018. 2 CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP 3 4 By: 5 Timothy R. Grimm Edith I. Rudder 6 1400 East Southern Avenue, Suite 400 7 Tempe, Arizona 85282 Attorneys for Plaintiff 8 9 CERTIFICATE OF SERVICE 10 I hereby certify that on February 15, 2018, a true and correct copy of the foregoing 11 document was electronically filed with the Clerk of the United States District Court of the 12 District of Arizona by using the CM/ECF system, and that service will be accomplished 13 14 by the CM/ECF system to all counsel of record. 15 I further certify that I have mailed a true and correct copy of the foregoing 16 document by United States Mail, first-class postage prepaid, sealed, and addressed to: 17 18 James Edward Geringer Klawquist, Sparkman, L.L.P. 19 1 World Trade Ctr. 20 121 SW Salmon St., Ste. 1600 Portland, Oregon 97204 21 Attorneys for Defendant Amazon.com 22 23 24 25 26 27 28 2

NOTICE of Service of Discovery filed by Amazon.com Incorporated.

1 JAMES E. GERINGER (admitted pro hac vice) james.geringer@klarquist.com 2 KLARQUIST SPARKMAN, LLP 121 SW Salmon Street, Suite 1600 3 Portland, Oregon 97204 4 Telephone: (503) 595-5300 5 Of Attorneys for Defendant AMAZON.COM, INC. 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Kangaroo Manufacturing, Inc., Case No.: CV-17-1806-PHX-SPL 10 Plaintiff, AMAZON'S NOTICE OF 11 v. SERVICE OF DISCOVERY 12 Amazon.com, Inc., 13 14 Defendant. 15 Amazon.com, Inc. ("Amazon") submits this Notice confirming that Amazon served 16 17 Plaintiff Kangaroo Manufacturing, Inc. with Amazon's First Request for Production of 18 Documents on February 14, 2018, and served Plaintiff with Amazon's First Set of 19 Interrogatory Requests, on February 12, 2018. 20 DATED this 15th day of February, 2018. 21 22 By: /s/James E. Geringer JAMES E. GERINGER (admitted pro hac vice) 23 james.geringer@klarquist.com 24 KLARQUIST SPARKMAN, LLP 121 SW Salmon Street, Suite 1600 25 Portland, Oregon 97204 Telephone: (503) 595-5300 26 27 Of Attorneys for Defendant AMAZON.COM, INC. 1 CERTIFICATE OF SERVICE 2 I hereby certify that on February 15, 2018, I electronically transmitted the foregoing 3 document to the Clerk's Office using the CM/ECF System for filing and transmittal of a 4 Notice of Electronic Filing to the following CM/ECF registrants: 5 6 Timothy Grimm, Esq., Timothy.Grimm@carpenterhazlewood.com Edith I. Rudder, Esq., Eadie.Rudder@carpenterhazlewood.com 7 CARPENTER, HAZLEWOOD, DELGADO & BOLEN, PLC 1400 East Southern Ave, Suite 400 8 Tempe, Arizona 85282 9 s/James E. Geringer 10 James E. Geringer 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 CERTIFICATE OF SERVICE

NOTICE of Service of Discovery filed by Kangaroo Manufacturing Incorporated.

1 CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Attorneys at Law 2 1400 E. Southern Ave., Suite 400 Tempe, Arizona 85282-5691 3 (480) 427-2800, Facsimile (480) 427-2801 minuteentries@carpenterhazlewood.com 4 Mark K. Sahl 025729 Timothy R. Grimm 019110 5 Edith I. Rudder 020650 KANGAROOM.0003 6 Attorneys for Plaintiff 7 IN THE UNITED STATES DISTRICT COURT 8 9 FOR THE DISTRICT OF ARIZONA 10 Kangaroo Manufacturing, Inc., a Florida Case 2:17-cv-01806-SPL 11 corporation, 12 Plaintiff, 13 PLAINTIFF'S NOTICE OF 14 v. SERVICE OF DISCOVERY 15 Amazon.com, Inc., a Delaware corporation, 16 Defendant. 17 18 19 Plaintiff, Kangaroo Manufacturing, Inc., submits this Notice confirming that 20 Kangaroo Manufacturing served Plaintiff's Initial Disclosure of Expert Witness upon 21 Defendant Amazon.com, Inc., on February 15, 2018. 22 23 … 24 … 25 … 26 27 … 28 … 1 1 RESPECTFULLY SUBMITTED this 15th day of February, 2018. 2 CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP 3 4 By: 5 Timothy R. Grimm Edith I. Rudder 6 1400 East Southern Avenue, Suite 400 7 Tempe, Arizona 85282 Attorneys for Plaintiff 8 9 CERTIFICATE OF SERVICE 10 I hereby certify that on February 15, 2018, a true and correct copy of the foregoing 11 document was electronically filed with the Clerk of the United States District Court of the 12 District of Arizona by using the CM/ECF system, and that service will be accomplished 13 14 by the CM/ECF system to all counsel of record. 15 I further certify that I have mailed a true and correct copy of the foregoing 16 document by United States Mail, first-class postage prepaid, sealed, and addressed to: 17 18 James Edward Geringer Klawquist, Sparkman, L.L.P. 19 1 World Trade Ctr. 20 121 SW Salmon St., Ste. 1600 Portland, Oregon 97204 21 Attorneys for Defendant Amazon.com 22 23 24 25 26 27 28 2

NOTICE of Service of Discovery filed by Kangaroo Manufacturing Incorporated.

1 CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Attorneys at Law 2 1400 E. Southern Ave., Suite 400 Tempe, Arizona 85282-5691 3 (480) 427-2800, Facsimile (480) 427-2801 minuteentries@carpenterhazlewood.com 4 Mark K. Sahl 025729 Timothy R. Grimm 019110 5 Edith I. Rudder 020650 KANGAROOM.0003 6 Attorneys for Plaintiff 7 IN THE UNITED STATES DISTRICT COURT 8 9 FOR THE DISTRICT OF ARIZONA 10 Kangaroo Manufacturing, Inc., a Florida Case 2:17-cv-01806-SPL 11 corporation, 12 Plaintiff, 13 PLAINTIFF'S NOTICE OF 14 v. SERVICE OF DISCOVERY 15 Amazon.com, Inc., a Delaware corporation, 16 Defendant. 17 18 19 Plaintiff, Kangaroo Manufacturing, Inc., submits this Notice confirming that 20 Kangaroo Manufacturing served Plaintiff's Amended Initial Disclosure of Expert 21 Witness and Plaintiff's Second Supplemental Disclosure Statement upon Defendant 22 23 Amazon.com, Inc., on February 20, 2018 by electronic means only. 24 … 25 … 26 27 … 28 … 1 1 RESPECTFULLY SUBMITTED this 20th day of February, 2018. 2 CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP 3 4 5 By: 6 Timothy R. Grimm 7 Edith I. Rudder 1400 East Southern Avenue, Suite 400 8 Tempe, Arizona 85282 9 Attorneys for Plaintiff 10 11 12 13 14 CERTIFICATE OF SERVICE 15 16 I hereby certify that on February 20, 2018, a true and correct copy of the foregoing 17 document was electronically filed with the Clerk of the United States District Court of the 18 District of Arizona by using the CM/ECF system, and that service will be accomplished 19 20 by the CM/ECF system to all counsel of record. 21 I further certify that I have mailed a true and correct copy of the foregoing 22 document by United States Mail, first-class postage prepaid, sealed, and addressed to: 23 James Edward Geringer 24 Klawquist, Sparkman, L.L.P. 25 1 World Trade Ctr. 121 SW Salmon St., Ste. 1600 26 Portland, Oregon 97204 27 james.geringer@klarquist.com Attorneys for Defendant Amazon.com 28 2 1 John A. Goldmark Max B. Hensley 2 Davis Wright Tremaine 3 1201 Third Ave., Ste. 2200 Seattle, WA 89101-3045 4 johngoldmark@dwt.com 5 Attorneys for Defendant Amazon.com 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

NOTICE of Service of Discovery filed by Amazon.com Incorporated.

1 JAMES E. GERINGER (admitted pro hac vice) james.geringer@klarquist.com 2 KLARQUIST SPARKMAN, LLP 121 SW Salmon Street, Suite 1600 3 Portland, Oregon 97204 4 Telephone: (503) 595-5300 5 JOHN GOLDMARK (admitted pro hac vice) johngoldmark@dwt.com 6 MAX B. HENSLEY (admitted pro hac vice) 7 maxhensley@dwt.com DAVIS WRIGHT TREMAINE, LLP 8 1201 Third Avenue, Suite 2200 Seattle, WA 98101-3045 9 Telephone: (206) 622-3150 10 Fax: (206) 757-7700 11 Of Attorneys for Defendant AMAZON.COM, INC. 12 13 IN THE UNITED STATES DISTRICT COURT 14 FOR THE DISTRICT OF ARIZONA 15 16 Kangaroo Manufacturing, Inc., Case No.: CV-17-1806-PHX-SPL 17 Plaintiff, 18 AMAZON'S NOTICE OF SERVICE OF v. REBUTTAL EXPERT REPORT OF 19 NEIL J. ZOLTOWSKI 20 Amazon.com, Inc., 21 Defendant. 22 23 Amazon.com, Inc. ("Amazon") submits this Notice confirming that Amazon served 24 Plaintiff Kangaroo Manufacturing, Inc. with a copy of the Rebuttal Expert Report of Neil 25 J. Zoltowski with Respect to Damages on March 8, 2018. 26 27 1 DATED this 8th day of March, 2018. 2 By: s/James E. Geringer JAMES E. GERINGER (admitted pro hac vice) 3 james.geringer@klarquist.com 4 KLARQUIST SPARKMAN, LLP 121 SW Salmon Street, Suite 1600 5 Portland, Oregon 97204 Telephone: (503) 595-5300 6 7 JOHN GOLDMARK (admitted pro hac vice) johngoldmark@dwt.com 8 MAX B. HENSLEY (admitted pro hac vice) maxhensley@dwt.com 9 DAVIS WRIGHT TREMAINE, LLP 1201 Third Avenue, Suite 2200 10 Seattle, WA 98101-3045 11 Telephone: (206) 622-3150 Fax: (206) 757-7700 12 13 Of Attorneys for Defendant AMAZON.COM, INC. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2 1 CERTIFICATE OF SERVICE 2 I hereby certify that on March 8, 2018, I electronically transmitted the foregoing 3 document to the Clerk's Office using the CM/ECF System for filing and transmittal of a 4 Notice of Electronic Filing to the following CM/ECF registrants: 5 Timothy Grimm, Esq., Timothy.Grimm@carpenterhazlewood.com 6 Edith I. Rudder, Esq., Eadie.Rudder@carpenterhazlewood.com 7 CARPENTER, HAZLEWOOD, DELGADO & BOLEN, PLC 1400 East Southern Ave, Suite 400 8 Tempe, Arizona 85282 9 10 s/James E. Geringer James E. Geringer 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 CERTIFICATE OF SERVICE

NOTICE of Service of Discovery filed by Kangaroo Manufacturing Incorporated.

1 CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Attorneys at Law 2 1400 E. Southern Ave., Suite 400 Tempe, Arizona 85282-5691 3 (480) 427-2800, Facsimile (480) 427-2801 minuteentries@carpenterhazlewood.com 4 Mark K. Sahl 025729 Timothy R. Grimm 019110 5 Edith I. Rudder 020650 KANGAROOM.0003 6 Attorneys for Plaintiff 7 IN THE UNITED STATES DISTRICT COURT 8 9 FOR THE DISTRICT OF ARIZONA 10 Kangaroo Manufacturing, Inc., a Florida Case 2:17-cv-01806-SPL 11 corporation, 12 Plaintiff, 13 PLAINTIFF'S NOTICE OF 14 v. SERVICE OF DISCOVERY 15 Amazon.com, Inc., a Delaware corporation, 16 Defendant. 17 18 19 Plaintiff, Kangaroo Manufacturing, Inc., submits this Notice confirming that 20 Kangaroo Manufacturing served Plaintiff Kangaroo Manufacturing, Inc.'s Responses to 21 Defendant Amazon.com, Inc.'s First Set of Interrogatories upon Defendant 22 23 Amazon.com, Inc., on March 14, 2018, by United State Mail, first-class. 24 … 25 … 26 27 … 28 … 1 1 RESPECTFULLY SUBMITTED this 14th day of March, 2018. 2 CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP 3 4 5 By: 6 Timothy R. Grimm 7 Edith I. Rudder 1400 East Southern Avenue, Suite 400 8 Tempe, Arizona 85282 9 Attorneys for Plaintiff 10 11 12 13 14 CERTIFICATE OF SERVICE 15 16 I hereby certify that on March 14, 2018, a true and correct copy of the foregoing 17 document was electronically filed with the Clerk of the United States District Court of the 18 District of Arizona by using the CM/ECF system, and that service will be accomplished 19 20 by the CM/ECF system to all counsel of record. 21 I further certify that I have mailed a true and correct copy of the foregoing 22 document by United States Mail, first-class postage prepaid, sealed, and addressed to: 23 James Edward Geringer 24 Klawquist, Sparkman, L.L.P. 25 1 World Trade Ctr. 121 SW Salmon St., Ste. 1600 26 Portland, Oregon 97204 27 james.geringer@klarquist.com Attorneys for Defendant Amazon.com 28 2 1 John A. Goldmark Max B. Hensley 2 Davis Wright Tremaine 3 1201 Third Ave., Ste. 2200 Seattle, WA 89101-3045 4 johngoldmark@dwt.com 5 Attorneys for Defendant Amazon.com 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

NOTICE of Service of Discovery filed by Kangaroo Manufacturing Incorporated.

1 CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Attorneys at Law 2 1400 E. Southern Ave., Suite 400 Tempe, Arizona 85282-5691 3 (480) 427-2800, Facsimile (480) 427-2801 minuteentries@carpenterhazlewood.com 4 Mark K. Sahl 025729 Timothy R. Grimm 019110 5 Edith I. Rudder 020650 KANGAROOM.0003 6 Attorneys for Plaintiff 7 IN THE UNITED STATES DISTRICT COURT 8 9 FOR THE DISTRICT OF ARIZONA 10 Kangaroo Manufacturing, Inc., a Florida Case 2:17-cv-01806-SPL 11 corporation, 12 Plaintiff, 13 PLAINTIFF'S NOTICE OF 14 v. SERVICE OF DISCOVERY 15 Amazon.com, Inc., a Delaware corporation, 16 Defendant. 17 18 19 Plaintiff, Kangaroo Manufacturing, Inc., submits this Notice confirming that 20 Kangaroo Manufacturing served Plaintiff Kangaroo Manufacturing, Inc.'s Responses to 21 Defendant Amazon.com, Inc.'s First Request for Production of Documents on March 22 23 16, 2018, electronically via email and by United State Mail, first-class. 24 … 25 … 26 27 … 28 … 1 1 RESPECTFULLY SUBMITTED this 16th day of March, 2018. 2 CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP 3 4 5 By: 6 Timothy R. Grimm 7 Edith I. Rudder 1400 East Southern Avenue, Suite 400 8 Tempe, Arizona 85282 9 Attorneys for Plaintiff 10 11 12 13 14 CERTIFICATE OF SERVICE 15 16 I hereby certify that on March 16, 2018, a true and correct copy of the foregoing 17 document was electronically filed with the Clerk of the United States District Court of the 18 District of Arizona by using the CM/ECF system, and that service will be accomplished 19 20 by the CM/ECF system to all counsel of record. 21 I further certify that I have mailed a true and correct copy of the foregoing 22 document by United States Mail, first-class postage prepaid, sealed, and addressed to: 23 James Edward Geringer 24 Klawquist, Sparkman, L.L.P. 25 1 World Trade Ctr. 121 SW Salmon St., Ste. 1600 26 Portland, Oregon 97204 27 james.geringer@klarquist.com Attorneys for Defendant Amazon.com 28 2 1 John A. Goldmark Max B. Hensley 2 Davis Wright Tremaine 3 1201 Third Ave., Ste. 2200 Seattle, WA 89101-3045 4 johngoldmark@dwt.com 5 Attorneys for Defendant Amazon.com 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

NOTICE of Service of Discovery filed by Amazon.com Incorporated.

1 JAMES E. GERINGER (admitted pro hac vice) james.geringer@klarquist.com 2 KLARQUIST SPARKMAN, LLP 121 SW Salmon Street, Suite 1600 3 Portland, Oregon 97204 4 Telephone: (503) 595-5300 5 JOHN GOLDMARK (admitted pro hac vice) johngoldmark@dwt.com 6 MAX B. HENSLEY (admitted pro hac vice) 7 maxhensley@dwt.com DAVIS WRIGHT TREMAINE, LLP 8 1201 Third Avenue, Suite 2200 Seattle, WA 98101-3045 9 Telephone: (206) 622-3150 10 Fax: (206) 757-7700 11 Of Attorneys for Defendant AMAZON.COM, INC. 12 13 IN THE UNITED STATES DISTRICT COURT 14 FOR THE DISTRICT OF ARIZONA 15 16 Kangaroo Manufacturing, Inc., Case No.: CV-17-1806-PHX-SPL 17 Plaintiff, 18 AMAZON'S NOTICE OF SERVICE v. OF DISCOVERY 19 20 Amazon.com, Inc., 21 Defendant. 22 23 Amazon.com, Inc. ("Amazon") submits this Notice confirming (a) that Amazon 24 served Plaintiff Kangaroo Manufacturing, Inc. with a copy of Amazon's First Set of 25 Requests for Admission, Amazon's Second Set of Interrogatories, and Amazon's Second 26 Set of Requests for Production of Documents, on March 16, 2018, and (b) that Amazon 27 1 served Plaintiff Kangaroo Manufacturing, Inc. with a copy of Amazon's responses and 2 objections to Plaintiff's First Set of Requests for Production of Documents on March 19, 3 2018. 4 5 th 6 DATED this 19 day of March, 2018. 7 8 By: s/James E. Geringer 9 JAMES E. GERINGER (admitted pro hac vice) james.geringer@klarquist.com 10 KLARQUIST SPARKMAN, LLP 121 SW Salmon Street, Suite 1600 11 Portland, Oregon 97204 12 Telephone: (503) 595-5300 13 JOHN GOLDMARK (admitted pro hac vice) johngoldmark@dwt.com 14 MAX B. HENSLEY (admitted pro hac vice) 15 maxhensley@dwt.com DAVIS WRIGHT TREMAINE, LLP 16 1201 Third Avenue, Suite 2200 Seattle, WA 98101-3045 17 Telephone: (206) 622-3150 18 Fax: (206) 757-7700 19 Of Attorneys for Defendant AMAZON.COM, INC. 20 21 22 23 24 25 26 27 2 1 CERTIFICATE OF SERVICE 2 I hereby certify that on March 19, 2018, I electronically transmitted the foregoing 3 document to the Clerk's Office using the CM/ECF System for filing and transmittal of a 4 Notice of Electronic Filing to the following CM/ECF registrants: 5 6 Timothy Grimm, Esq. Timothy.Grimm@carpenterhazlewood.com 7 Edith I. Rudder, Esq. Eadie.Rudder@carpenterhazlewood.com 8 CARPENTER, HAZLEWOOD, DELGADO & BOLEN, PLC 9 1400 East Southern Ave, Suite 400 Tempe, Arizona 85282 10 11 s/James E. Geringer 12 James E. Geringer 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 CERTIFICATE OF SERVICE

NOTICE of Service of Discovery filed by Amazon.com Incorporated.

1 JAMES E. GERINGER (admitted pro hac vice) james.geringer@klarquist.com 2 KLARQUIST SPARKMAN, LLP 121 SW Salmon Street, Suite 1600 3 Portland, Oregon 97204 4 Telephone: (503) 595-5300 5 JOHN GOLDMARK (admitted pro hac vice) johngoldmark@dwt.com 6 MAX B. HENSLEY (admitted pro hac vice) 7 maxhensley@dwt.com DAVIS WRIGHT TREMAINE, LLP 8 1201 Third Avenue, Suite 2200 Seattle, WA 98101-3045 9 Telephone: (206) 622-3150 10 Fax: (206) 757-7700 11 Of Attorneys for Defendant AMAZON.COM, INC. 12 13 IN THE UNITED STATES DISTRICT COURT 14 FOR THE DISTRICT OF ARIZONA 15 16 Kangaroo Manufacturing, Inc., Case No.: CV-17-1806-PHX-SPL 17 Plaintiff, 18 AMAZON'S NOTICE OF SERVICE v. OF DISCOVERY 19 20 Amazon.com, Inc., 21 Defendant. 22 23 Amazon.com, Inc. ("Amazon") submits this Notice confirming that (a) on April 3, 24 2018, Amazon served Plaintiff Kangaroo Manufacturing, Inc. ("Kangaroo") with a copy 25 of Amazon's Notice of Deposition of Justin Ligeri; (b) on March 30, 2018, Amazon served 26 Kangaroo with a copy of Amazon's Notice of Deposition of Plaintiff Kangaroo 27 1 Manufacturing, Inc., (c) on March 29, 2018, Amazon served Kangaroo with a copy of 2 Amazon's Third Supplemental Initial Discovery Responses, and (d) on March 28, 2018, 3 Amazon served Kangaroo with a copy of Amazon's document subpoena to Bryce Cook. 4 5 rd 6 DATED this 3 day of April, 2018. 7 By: s/James E. Geringer JAMES E. GERINGER (admitted pro hac vice) 8 james.geringer@klarquist.com 9 KLARQUIST SPARKMAN, LLP 121 SW Salmon Street, Suite 1600 10 Portland, Oregon 97204 Telephone: (503) 595-5300 11 12 JOHN GOLDMARK (admitted pro hac vice) johngoldmark@dwt.com 13 MAX B. HENSLEY (admitted pro hac vice) maxhensley@dwt.com 14 DAVIS WRIGHT TREMAINE, LLP 1201 Third Avenue, Suite 2200 15 Seattle, WA 98101-3045 16 Telephone: (206) 622-3150 Fax: (206) 757-7700 17 18 Of Attorneys for Defendant AMAZON.COM, INC. 19 20 21 22 23 24 25 26 27 2 1 CERTIFICATE OF SERVICE 2 I hereby certify that on April 3, 2018, I electronically transmitted the foregoing 3 document to the Clerk's Office using the CM/ECF System for filing and transmittal of a 4 Notice of Electronic Filing to the following CM/ECF registrants: 5 6 Timothy Grimm, Esq. Timothy.Grimm@carpenterhazlewood.com 7 Edith I. Rudder, Esq. Eadie.Rudder@carpenterhazlewood.com 8 CARPENTER, HAZLEWOOD, DELGADO & BOLEN, PLC 9 1400 East Southern Ave, Suite 400 Tempe, Arizona 85282 10 11 s/James E. Geringer 12 James E. Geringer 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 CERTIFICATE OF SERVICE

NOTICE of Deposition of 30(b)(6) of Amazon.com, filed by Kangaroo Manufacturing Incorporated.

1 CARPENTER,HAZLEWOOD,DELGADO & BOLEN LLP Attorneys at Law 2 1400 E. Southern Ave., Suite 400 Tempe, Arizona 85282-5691 3 (480)427-2800, Facsimile (480)427-2801 minuteentries@carpenterhazlewood.com 4 Mark K. Sahi 025729 Timothy R. Grimm 019110 5 Edith I. Rudder 020650 KANGAROOM.0003 6 Attorneys for Plaintiff 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 Kangaroo Manufacturing, Inc., a Florida Case2:I7-cv-01806-SPL 11 corporation. 12 Plaintiff, 13 NOTICE OF 30(b)(6) DEPOSITION 14 V. OF AMAZON.COM,INC. 15 Amazon.com, Inc., a Delaware corporation. 16 Defendant. 17 18 YOU ARE HEREBY NOTIFIED that, pursuant to Federal Rule of Civil 19 20 Procedure 26 and 30, the deposition of the Rule 30(b)(6) witness or witnesses identified 21 below on the topics listed in Exhibit A will be taken upon examination at the time and 22 place stated below before an officer authorized by law to administer oaths. Pursuant to 23 Rule 30(b)(6), you are requested to designate one or more officers, directors, or 24 25 managing agents, or other persons who consent to testify on your behalf with respect to 26 each of the topies identified on the attached list of deposition topics. 27 28

NOTICE of Deposition of Neil J. Zoltowski, filed by Kangaroo Manufacturing Incorporated.

1 CARPENTER,HAZLEWOOD,DELGADO & BOLEN LLP Attorneys at Law 2 1400 E. Southern Ave., Suite 400 Tempe, Arizona 85282-5691 3 (480)427-2800, Facsimile (480)427-2801 minuteentries@carpenterhazlewood.com 4 Mark K. Sahl 025729 Timothy R. Grimm 019110 5 Edith 1. Rudder 020650 KANGAROOM.0003 6 Attorneys for Plaintiff 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 Kangaroo Manufacturing, Inc., a Florida Case2:17-cv-01806-SPL 11 corporation. 12 Plaintiff, 13 NOTICE OF DEPOSITION 14 V. OF NEIL J. ZOLTOWSKI 15 Amazon.com,Inc., a Delaware corporation. 16 Defendant. 17 18 TO: Neil J. Zoltowski 19 StoneTum Group, LLP One Sansome Street, Suite 700 20 San Franeisco, CA 94107 21 James Edward Geringer 22 Klarquist, Sparkman, L.L.P. 23 1 World Trade Ctr. 121 SW Salmon St., Ste. 1600 24 Portland, Oregon 97204 25 John Goldmark 26 Max B. Hensley 27 DAVIS WRIGHT TREMAINE,LLP 1201 Third Avenue, Suite 2200 28 Seattle, WA 98101-3045

NOTICE of Deposition of Neil J. Zoltowski (Amended), filed by Kangaroo Manufacturing Incorporated.

1 CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Attorneys at Law 2 1400 E. Southern Ave., Suite 400 Tempe, Arizona 85282-5691 3 (480) 427-2800, Facsimile (480) 427-2801 minuteentries@carpenterhazlewood.com 4 Mark K. Sahl 025729 Timothy R. Grimm 019110 5 Edith I. Rudder 020650 KANGAROOM.0003 6 Attorneys for Plaintiff 7 IN THE UNITED STATES DISTRICT COURT 8 9 FOR THE DISTRICT OF ARIZONA 10 Kangaroo Manufacturing, Inc., a Florida Case 2:17-cv-01806-SPL 11 corporation, 12 Plaintiff, AMENDED 13 NOTICE OF DEPOSITION 14 v. OF NEIL J. ZOLTOWSKI 15 Amazon.com, Inc., a Delaware corporation, 16 Defendant. 17 18 TO: Neil J. Zoltowski 19 StoneTurn Group, LLP 20 One Sansome Street, Suite 700 San Francisco, CA 94107 21 James Edward Geringer 22 Klarquist, Sparkman, L.L.P. 23 1 World Trade Ctr. 121 SW Salmon St., Ste. 1600 24 Portland, Oregon 97204 25 John Goldmark 26 Max B. Hensley 27 DAVIS WRIGHT TREMAINE, LLP 1201 Third Avenue, Suite 2200 28 Seattle, WA 98101-3045 1 1 PLEASE TAKE NOTICE that the deposition upon oral examination of the 2 following person will be taken before a notary public of other person authorized under 3 law to administer an oath at the following date, time and place: 4 Witness: Neil J. Zoltowski 5 Date: April 23, 2018 6 7 Hour: 9:00 a.m. 8 Place: Davis Wright Tremaine, LLP 9 505 Montgomery Street, Suite 800 San Francisco, CA 94111-6533 10 11 Dated April 17, 2018. 12 CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP 13 14 By: 15 Timothy R. Grimm 16 Edith I. Rudder 1400 East Southern Avenue, Suite 400 17 Tempe, Arizona 85282 18 Attorneys for Plaintiff 19 20 21 22 23 24 25 26 27 28 2 1 CERTIFICATE OF SERVICE 2 I hereby certify that on April 17, 2018, a true and correct copy of the foregoing 3 document was electronically filed with the Clerk of the United States District Court of the 4 5 District of Arizona by using the CM/ECF system, and that service will be accomplished 6 by the CM/ECF system to all counsel of record. 7 I further certify that I have mailed a true and correct copy of the foregoing 8 9 document by United States Mail, by first-class postage prepaid, sealed, and addressed to: 10 James Edward Geringer 11 Klarquist, Sparkman, L.L.P. 1 World Trade Ctr. 12 121 SW Salmon St., Ste. 1600 Portland, Oregon 97204 13 James.Geringer@klarquist.com 14 Attorneys for Defendant Amazon.com 15 John Goldmark 16 Max B. Hensley DAVIS WRIGHT TREMAINE, LLP 17 1201 Third Avenue, Suite 2200 18 Seattle, WA 98101-3045 JohnGoldmark@dwt.com 19 MaxHensley@dwt.com 20 Attorneys for Defendant Amazon.com 21 22 23 Vicki Goslin 24 25 26 27 28 3

NOTICE of Service of Discovery filed by Kangaroo Manufacturing Incorporated.

1 CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Attorneys at Law 2 1400 E. Southern Ave., Suite 400 Tempe, Arizona 85282-5691 3 (480) 427-2800, Facsimile (480) 427-2801 minuteentries@carpenterhazlewood.com 4 Mark K. Sahl 025729 Timothy R. Grimm 019110 5 Edith I. Rudder 020650 KANGAROOM.0003 6 Attorneys for Plaintiff 7 IN THE UNITED STATES DISTRICT COURT 8 9 FOR THE DISTRICT OF ARIZONA 10 Kangaroo Manufacturing, Inc., a Florida Case 2:17-cv-01806-SPL 11 corporation, 12 Plaintiff, 13 PLAINTIFF'S NOTICE OF 14 v. SERVICE OF DISCOVERY 15 Amazon.com, Inc., a Delaware corporation, 16 Defendant. 17 18 19 Plaintiff, Kangaroo Manufacturing, Inc., submits this Notice confirming that 20 Kangaroo Manufacturing served Plaintiff Kangaroo Manufacturing, Inc.'s Responses to 21 Defendant Amazon.com, Inc.'s First Request for Admissions; Plaintiff Kangaroo 22 23 Manufacturing, Inc.'s Responses to Defendant Amazon.com, Inc.'s Second Set of 24 Interrogatories (Nos. 6-9); and Plaintiff Kangaroo Manufacturing, Inc.'s Response to 25 Defendant Amazon.com, Inc.'s Second Request for Production of Documents (Nos. 8- 26 27 20) on April 16, 2018, electronically via email and by United State Mail, first-class. 28 … 1 1 RESPECTFULLY SUBMITTED this 17th day of April, 2018. 2 CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP 3 4 5 By: 6 Timothy R. Grimm 7 Edith I. Rudder 1400 East Southern Avenue, Suite 400 8 Tempe, Arizona 85282 9 Attorneys for Plaintiff 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 1 CERTIFICATE OF SERVICE 2 3 I hereby certify that on April 17, 2018, a true and correct copy of the foregoing 4 document was electronically filed with the Clerk of the United States District Court of the 5 District of Arizona by using the CM/ECF system, and that service will be accomplished 6 7 by the CM/ECF system to all counsel of record. 8 I further certify that I have mailed a true and correct copy of the foregoing 9 document by United States Mail, first-class postage prepaid, sealed, and addressed to: 10 11 James Edward Geringer Klawquist, Sparkman, L.L.P. 12 1 World Trade Ctr. 121 SW Salmon St., Ste. 1600 13 Portland, Oregon 97204 14 james.geringer@klarquist.com Attorneys for Defendant Amazon.com 15 16 John A. Goldmark Max B. Hensley 17 Davis Wright Tremaine 18 1201 Third Ave., Ste. 2200 Seattle, WA 89101-3045 19 johngoldmark@dwt.com 20 Attorneys for Defendant Amazon.com 21 22 23 24 25 26 27 28 3

NOTICE of Service of Discovery filed by Amazon.com Incorporated.

1 JAMES E. GERINGER (admitted pro hac vice) james.geringer@klarquist.com 2 KLARQUIST SPARKMAN, LLP 121 SW Salmon Street, Suite 1600 3 Portland, Oregon 97204 4 Telephone: (503) 595-5300 5 JOHN GOLDMARK (admitted pro hac vice) johngoldmark@dwt.com 6 MAX B. HENSLEY (admitted pro hac vice) 7 maxhensley@dwt.com DAVIS WRIGHT TREMAINE, LLP 8 1201 Third Avenue, Suite 2200 Seattle, WA 98101-3045 9 Telephone: (206) 622-3150 10 Fax: (206) 757-7700 11 Of Attorneys for Defendant AMAZON.COM, INC. 12 13 IN THE UNITED STATES DISTRICT COURT 14 FOR THE DISTRICT OF ARIZONA 15 16 Kangaroo Manufacturing, Inc., Case No.: CV-17-1806-PHX-SPL 17 Plaintiff, 18 AMAZON'S NOTICE OF SERVICE v. OF DISCOVERY 19 20 Amazon.com, Inc., 21 Defendant. 22 23 Amazon.com, Inc. ("Amazon") submits this Notice confirming that (a) on April 5, 24 2018, Amazon served Plaintiff Kangaroo Manufacturing, Inc. ("Kangaroo") with a copy 25 of Amazon's Amended Notice of Deposition of Justin Ligeri and Amazon's Amended 26 Notice of 30(b)(6) Deposition of Kangaroo; (b) on April 6, 2018, Amazon served Plaintiff 27 1 Kangaroo Manufacturing, Inc. ("Kangaroo") with a copy of Amazon's Notice of Intent to 2 Serve Subpoena on Oasis Supply Company; (c) and on April 16, 2018, Amazon served 3 Plaintiff Kangaroo Manufacturing, Inc. ("Kangaroo") with a copy of Amazon's Notice of 4 Intent to Serve Subpoena on Great American Duck Races, Inc. 5 6 7 DATED this 18th day of April, 2018. 8 By: s/James E. Geringer 9 JAMES E. GERINGER (admitted pro hac vice) james.geringer@klarquist.com 10 KLARQUIST SPARKMAN, LLP 121 SW Salmon Street, Suite 1600 11 Portland, Oregon 97204 12 Telephone: (503) 595-5300 13 JOHN GOLDMARK (admitted pro hac vice) johngoldmark@dwt.com 14 MAX B. HENSLEY (admitted pro hac vice) 15 maxhensley@dwt.com DAVIS WRIGHT TREMAINE, LLP 16 1201 Third Avenue, Suite 2200 Seattle, WA 98101-3045 17 Telephone: (206) 622-3150 18 Fax: (206) 757-7700 19 Of Attorneys for Defendant AMAZON.COM, INC. 20 21 22 23 24 25 26 27 2 1 CERTIFICATE OF SERVICE 2 I hereby certify that on April 18, 2018, I electronically transmitted the foregoing 3 document to the Clerk's Office using the CM/ECF System for filing and transmittal of a 4 Notice of Electronic Filing to the following CM/ECF registrants: 5 Timothy Grimm, Esq. 6 Timothy.Grimm@carpenterhazlewood.com 7 Edith I. Rudder, Esq. Eadie.Rudder@carpenterhazlewood.com 8 CARPENTER, HAZLEWOOD, DELGADO & BOLEN, PLC 9 1400 East Southern Ave, Suite 400 Tempe, Arizona 85282 10 11 s/James E. Geringer 12 James E. Geringer 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 CERTIFICATE OF SERVICE

*NOTICE of Service filed by Amazon.com Incorporated: Affidavit of Service re: Subpoena served upon Rhode Island Novelty, Inc. Through its Registered Agent James P. Redding on February 27, 2018.

1 JAMES E. GERINGER (admitted pro hac vice) james.geringer@klarquist.com 2 KLARQUIST SPARKMAN, LLP 3 121 SW Salmon Street, Suite 1600 Portland, Oregon 97204 4 Telephone: (503) 595-5300 5 Facsimile: (503) 595-5301 6 JOHN GOLDMARK (admitted pro hac vice) johngoldmark@dwt.com 7 MAX B. HENSLEY (admitted pro hac vice) 8 maxhensley@dwt.com DAVIS WRIGHT TREMAINE, LLP 9 1201 Third Avenue, Suite 2200 Seattle, WA 98101-3045 10 Telephone: (206) 622-3150 11 Facsimile: (206) 757-7700 12 Counsel for Defendant AMAZON.COM, INC. 13 14 IN THE UNITED STATES DISTRICT COURT 15 FOR THE DISTRICT OF ARIZONA 16 17 Kangaroo Manufacturing, Inc., Case No.: CV-17-1806-PHX-SPL 18 Plaintiff, 19 v. NOTICE OF FILING AFFIDAVIT OF 20 SERVICE OF SUBPOENA ON RHODE Amazon.com, Inc., ISLAND NOVELTY, INC. THROUGH 21 ITS REGISTERED AGENT JAMES P. 22 Defendant. REDDING 23 24 25 26 27 1 Defendant Amazon.com, Inc. ("Amazon") hereby submits this Notice of Filing 2 Affidavit of Service of Subpoena on Rhode Island Novelty, Inc. through its Registered 3 Agent James P. Redding. 4 DATED this 18th day of April, 2018. 5 6 By: s/James E. Geringer 7 JAMES E. GERINGER (admitted pro hac vice) james.geringer@klarquist.com 8 KLARQUIST SPARKMAN, LLP 9 121 SW Salmon Street, Suite 1600 Portland, Oregon 97204 10 Telephone: (503) 595-5300 Facsimile: (503) 595-5301 11 12 JOHN GOLDMARK (admitted pro hac vice) johngoldmark@dwt.com 13 MAX B. HENSLEY (admitted pro hac vice) maxhensley@dwt.com 14 DAVIS WRIGHT TREMAINE, LLP 15 1201 Third Avenue, Suite 2200 Seattle, WA 98101-3045 16 Telephone: (206) 622-3150 17 Facsimile: (206) 757-7700 18 Counsel for Defendant AMAZON.COM, INC. 19 20 21 22 23 24 25 26 27 2 1 CERTIFICATE OF SERVICE 2 I hereby certify that on April 18, 2018, I electronically transmitted the foregoing 3 document to the Clerk's Office using the CM/ECF System for filing and transmittal of a 4 Notice of Electronic Filing to the following CM/ECF registrants: 5 Timothy Grimm, Esq. 6 Timothy.Grimm@carpenterhazlewood.com 7 Edith I. Rudder, Esq. Eadie.Rudder@carpenterhazlewood.com 8 CARPENTER, HAZLEWOOD, DELGADO & BOLEN, PLC 9 1400 East Southern Ave, Suite 400 Tempe, Arizona 85282 10 11 s/James E. Geringer 12 James E. Geringer 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 CERTIFICATE OF SERVICE

Affidavit) *Modified to correct event type on 4/19/2018 (EJA

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA KANGAROO MAN UFACTURING, INC., Plaintiff, Case No. CV-17-1806-PHX-SPL v. AFFIDAV IT OF SERVICE AMAZON.COM, INC., De endant. STATE OF MASSACHUS ETTS } SS. County of Suffolk I, Bob Sweeney, hereby certify that I am a competent person 18 years of age or older, a resident of the State of Massachusetts and that I am not a party to nor an attorney for any party in the within named action; that I made serv ice of true copies of the following documents: Subpoena to Produce Documents, Information, or O~jecls or to Permit lmpection of Premises in a Civil Action Upon RHODE ISLAND NOVELTY, INC. by delivering the above documents, personal ly and in person, to James P. Redding, who is the Registered Agent thereof, at I International Place, Suite 2000, Boston, Massachusetts 02110 on February 27, 201 8 at l:40 p.m., I declare under the pe nalty of perj ury that the above statement is true a nd correct. ·~ 11 SUBSCRIBED AND SWORN TO BEFORE ME this ~ __ day of-~~--' 2018, by Bob I Sweeney. MARTHA J. Cl.ARK Notary Public Commonwealth ol Manachuaetb Notary Public D. r Massachusetts; My Commission Expires June 7, 2024 NATIONWIDE PROCESS SERVICE, INC. 300 Century Tower 1201SW12th Avenue Portland, OR 97205 (503) 241-0636

NOTICE of Service of Discovery filed by Kangaroo Manufacturing Incorporated.

1 CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Attorneys at Law 2 1400 E. Southern Ave., Suite 400 Tempe, Arizona 85282-5691 3 (480) 427-2800, Facsimile (480) 427-2801 minuteentries@carpenterhazlewood.com 4 Mark K. Sahl 025729 Timothy R. Grimm 019110 5 Edith I. Rudder 020650 KANGAROOM.0003 6 Attorneys for Plaintiff 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 Kangaroo Manufacturing, Inc., a Florida Case 2:17-cv-01806-SPL 10 corporation, 11 Plaintiff, 12 PLAINTIFF'S NOTICE OF 13 v. SERVICE OF DISCOVERY 14 Amazon.com, Inc., a Delaware corporation, 15 Defendant. 16 Plaintiff, Kangaroo Manufacturing, Inc., submits this Notice confirming that 17 18 Kangaroo Manufacturing served Plaintiff Kangaroo Manufacturing, Inc.'s Amended 19 Responses to Defendant Amazon.com, Inc.'s First Request for Admissions on April 20, 20 2018, by United State Mail, first-class. 21 22 RESPECTFULLY SUBMITTED this 20th day of April, 2018. 23 CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP 24 25 By: Timothy R. Grimm 26 Edith I. Rudder 27 1400 East Southern Avenue, Suite 400 Tempe, Arizona 85282 28 Attorneys for Plaintiff 1 1 CERTIFICATE OF SERVICE 2 3 I hereby certify that on April 20, 2018, a true and correct copy of the foregoing 4 document was electronically filed with the Clerk of the United States District Court of the 5 District of Arizona by using the CM/ECF system, and that service will be accomplished 6 7 by the CM/ECF system to all counsel of record. 8 I further certify that I have mailed a true and correct copy of the foregoing 9 document by United States Mail, first-class postage prepaid, sealed, and addressed to: 10 11 James Edward Geringer Klawquist, Sparkman, L.L.P. 12 1 World Trade Ctr. 121 SW Salmon St., Ste. 1600 13 Portland, Oregon 97204 14 james.geringer@klarquist.com Attorneys for Defendant Amazon.com 15 16 John A. Goldmark Max B. Hensley 17 Davis Wright Tremaine 18 1201 Third Ave., Ste. 2200 Seattle, WA 89101-3045 19 johngoldmark@dwt.com 20 Attorneys for Defendant Amazon.com 21 22 23 24 25 26 27 28 2

NOTICE of Deposition of Continued Rule 30(b)(6) Deposition of Amazon.com, Inc., filed by Kangaroo Manufacturing Incorporated.

1 CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Attorneys at Law 2 1400 E. Southern Ave., Suite 400 Tempe, Arizona 85282-5691 3 (480) 427-2800, Facsimile (480) 427-2801 minuteentries@carpenterhazlewood.com 4 Mark K. Sahl 025729 Timothy R. Grimm 019110 5 Edith I. Rudder 020650 KANGAROOM.0003 6 Attorneys for Plaintiff 7 IN THE UNITED STATES DISTRICT COURT 8 9 FOR THE DISTRICT OF ARIZONA 10 Kangaroo Manufacturing, Inc., a Florida Case 2:17-cv-01806-SPL 11 corporation, 12 Plaintiff, NOTICE OF CONTINUED 13 RULE 30(b)(6) DEPOSITION 14 v. OF AMAZON.COM, INC. 15 Amazon.com, Inc., a Delaware corporation, 16 Defendant. 17 18 YOU ARE HEREBY NOTIFIED that, pursuant to Federal Rule of Civil 19 20 Procedure 26 and 30, the deposition of the Rule 30(b)(6) witness or witnesses identified 21 below on the topics listed in Exhibit A is continued from April 23, 2018, and will be 22 taken upon examination at the time and place stated below before an officer authorized 23 by law to administer oaths. Pursuant to Rule 30(b)(6), you are requested to designate 24 25 one or more officers, directors, or managing agents, or other persons who consent to 26 testify on your behalf with respect to each of the topics identified on the attached list of 27 deposition topics. 28 1 1 PERSON TO BE EXAMINED: Representative(s) of Amazon.com, Inc. 2 DATE AND TIME OF DEPOSITION: Monday, April 30, 2018 at 9:00 a.m. 3 PLACE OF DEPOSITION: Davis Wright Tremaine LLP 4 1201 3rd Ave., Suite 2200 5 Seattle, Washington 98101 6 Dated this 24th day of April, 2018. 7 CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP 8 9 10 By: 11 Timothy R. Grimm Edith I. Rudder 12 1400 East Southern Avenue, Suite 400 Tempe, Arizona 85282 13 Attorneys for Plaintiff 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 1 CERTIFICATE OF SERVICE 2 I hereby certify that on April 24, 2018, a true and correct copy of the foregoing 3 document was electronically submitted to the Clerk of the United States District Court of 4 5 the District of Arizona by using the CM/ECF system, and that service will be 6 accomplished by the CM/ECF system to all counsel of record. 7 I further certify that I have mailed a true and correct copy of the foregoing 8 9 document by United States Mail, first-class postage prepaid, sealed, and addressed to: 10 James Edward Geringer 11 Klarquist, Sparkman, L.L.P. 1 World Trade Ctr. 12 121 SW Salmon St., Ste. 1600 Portland, Oregon 97204 13 James.Geringer@klarquist.com 14 Attorneys for Defendant Amazon.com 15 John Goldmark 16 Max B. Hensley DAVIS WRIGHT TREMAINE, LLP 17 1201 Third Avenue, Suite 2200 18 Seattle, WA 98101-3045 JohnGoldmark@dwt.com 19 MaxHensley@dwt.com 20 Attorneys for Defendant Amazon.com 21 Glennie Reporting Services 1555 East Orangewood Ave. 22 Phoenix, AZ 85020-5130 23 24 25 26 Vicki Goslin 27 28 3 1 Exhibit A – Deposition Topics 2 1. Product Sales and fees for the Accused Products on Amazon including 3 Product Detail Page; Fulfillment by Amazon; Amazon commissions; and Amazon Storage/Fulfillment Fees. 4 5 2. Amazon regulation of sales including Authorized Sale – Buy Box; Authorized Sales – Source Rating; and Counterfeit Sales. 6 7 3. Amazon policies and procedures with respect to take-down notices and manufacturer reporting of counterfeit goods. 8 9 4. Communications within Amazon and by and between Amazon and Kangaroo concerning Kangaroo's take-down notices and reports of counterfeit product 10 listings for the Accused Product. 11 5. Amazon's policies and procedures with respect to Trademark Infringement 12 and False Designation of Origin. 13 6. Amazon's use of counterfeit Kangaroo Trademarks. 14 7. Copyright Infringement by Amazon of Kangaroo's copyrights. 15 16 8. Administration of Kangaroo UPC by Amazon. 17 9. Amazon's policies, procedures, and actual control of sales prices of the 18 Accused Products. 19 10. Amazon's processes to determine which seller is assigned the Buy Box. 20 11. Unfair Competition regarding fees earned by Amazon related to the sales 21 by unauthorized competitors and counterfeiters. 22 12. Tortious Interference with Prospective Contract by Amazon. 23 13. Amazon's policies, procedures, and process for obtaining products sold 24 directly by Amazon as a retailer. 25 14. Amazon's identification of a vendor to source the Accused Products. 26 27 15. Amazon's purchase of the Accused Products. 28 4 1 16. Amazon's process to obtain licenses to use the intellectual property for Accused Products sold directly by Amazon. 2 3 17. How reported sales numbers are calculated and relation thereto of the actual costs. 4 5 18. Amazon's policies and procedures concerning third party resellers and guidelines and restrictions, if any, on reselling products as new or used. 6 7 19. Any licenses or intellectual property usage rights Amazon asserts are conferred on the basis of the Business Solutions Agreement (BSA). 8 9 20. Amazon's retention of documents and things related to claims made in the Complaint, efforts to retrieve and produce documents and information in this case, and 10 production of such documents and information. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

*OBJECTION and MOTION to Quash Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action Issued by Defendant Amazon.com, Inc. to Great American Duck Races, Inc. by Plaintiff Kangaroo Manufacturing Incorporated. *Modified to add motion part on 5/1/2018

0 - CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Attorneys at Law 1400 E. Southern Ave ., Suite 400 Tempe, Arizona 85282 - 5691 (480) 427 - 2800, Facsimile (480) 427 - 2801 minutcentries @ carpenterhazlewood. com Mark K. Sahl 025729 Timothy R. Grimm 019110 Edith I. Rudder 020650 KANGAROOM. 0003 au Attorneys for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA KANGAROO MANUFACTURING, INC ., Case 2: 17 - cv - 01806 - SPL Ja Florida corporation, OBJECTION AND MOTION TO Plaintiff, QUASH SUBPOENA TO PRODUCE DOCUMENTS, INFORMATION, OR OBJECTS OR TO PERMIT INSPECTION OF PREMISES IN A | | AMAZON. COM, INC ., a Delaware CIVIL ACTION ISSUED BY corporation, DEFENDANT AMAZON. COM, INC. TO GREAT AMERICAN DUCK RACES, Defendant. INC. Pursuant to Rules 26 (c) and 45 (d) (iii), Fed. R. Civ. P. and the Stipulated Protective 18 | | Order (Doc. # 26) ("Protective Order") entered in Great American Duck Races, Inc. v. Kangaroo Manufacturing, Inc ., et al ., Case No. CV - 17 - 212 - PHX - ROS (the " GAME Case"), Plaintiff Kangaroo Manufacturing, Inc. ("Kangaroo") objects to and moves to quash the Subpoena To Produce Documents, Information, Or Objects Or To Permit Inspection Of 88 - 8 Premises In A Civil Action (the " Subpoena ' ') issued by Defendant Amazon. Com, Inc. ("Amazon") to Great American Duck Races, Inc. ("GAME") on April 23, 2018 on the grounds stated hereinafter. Kangaroo attaches hereto as Exhibit 1 a copy of the Amazon 8 0 Subpoena, including the Exhibit A attached thereto, for the Court's review. Kangaroo contends this Subpoena would result in the disclosure of information and documentation designated as " CONFIDENTIAL Material " and / or " ATTORNEYS ' EYES ONLY - HIGHLY CONFIDENTIAL Material " pursuant to the Protective Order in the GAME Case. In its Exhibit A to the Subpoena, Amazon seeks production from GAME of the transcripts of all depositions, and all exhibits thereto, taken in the GAME Case as well as all documents " containing information that refers or relates [ sic ] the reputation, prior litigation history, previous fraudulent acts, or use (whether proper or improper) of any part of the Amazon. com marketplace " by Kangaroo, its principal, Justin Ligeri, or any affiliated companies, such as Yagoozon, Inc. and Pennies2Platinum, Inc. However, a Protective Order is in place in the GAME Case that precludes GAME from disclosing to a third party not related to the GAME Case, any of the confidential information disclosed or discovered in that case. Paragraph 3 of the Protective Order, a copy of which is attached hereto as Exhibit 2, | incorporated herein by this reference, states that " CONFIDENTIAL Material " is anything the parties reasonably believe is not generally known or disclosed to third parties " except in | confidence " or that which is protected under federal or state privilege laws. In Paragraph 4, | | the parties agreed that information designed " ATTORNEYS ' EYES ONLY – HIGHLY CONFIDENTIAL Material " is anything the parties believe is not generally known to others and which has significant competitive value or is significantly sensitive or is covered by federal or state privilege laws that would create a " substantial risk of serious injury and 0 | harm " to the disclosing party should it be inadvertently and improvidently disclosed. Section I, Paragraph 27 of the Protective Order (which GAME has observed), governs what a party shall do if served with a subpoena that might potentially result in the disclosure of " CONFIDENTIAL Material " and / or " ATTORNEYS ' EYES ONLY – HIGHLY | | CONFIDENTIAL Material " . Because the subpoena seeks confidential information 7 | | implicating Kangaroo's (and Mr. Ligeri ' s) privacy interests and confidential business information, it has standing to bring this motion. Cabell v. Zorro Productions, Inc ., 294 F. R. D. 604, 607 - 8 (W. D. Wash. 2013); 9A Charles Alan Wright & Arthur R. Miller, FEDERAL PRACTICE AND PROCEDURE $ 2459 (3d ed. 2008) ("Ordinarily a party has no | standing to seek to quash a subpoena issued to someone who is not a party to the action, unless the objecting party claims some personal right or privilege with respect to the documents sought. " ') . Rule 26 (c), Fed. R. Civ. P ., gives this Court the authority to quash Amazon's subpoena | in order to protect Mr. Ligeri from any embarrassment or annoyance. Rule 26 (b) (1), | Fed. R. Civ. P. limits a party to discovery on non - privileged matters relevant to that party's defense (s) . See, Shoen v. Shoen, 5 F. 3d 1289, 1292 (9th Cir. 1993); Cabell, 294 F. R. D. at 608 (W. D. Wash. 2013) . Amazon's First Amended Answer (Doc. # 30) shows nine (9) | affirmative defenses, none of which implicates any alleged fraudulent behavior by Mr. | | Ligeri. Same with its Amazon's Mandatory Initial Discovery Responses. None of Amazon's supplemental responses reveals any new affirmative defenses that would implicate any alleged fraud. Regardless, the information sought by Amazon would require دیا 0 | disclosure of confidential, proprietary information the parties to the GAME Case believe in | good faith should not be disclosed to third parties for any reason outside the confines of the GAME Case. Mr. Ligeri's entire deposition in the GAME Case, both individually and as corporate representative, in the GAME Case is designated as " CONFIDENTIAL Material " as are the exhibits thereto. Likewise, additional depositions in the GAME Case are either " ATTORNEYS ' EYES ONLY – HIGHLY CONFIDENTIAL Material " or certain parts and / or exhibits of other depositions are designated as " CONFIDENTIAL Material " and / or | " ATTORNEYS ' EYES ONLY – HIGHLY CONFIDENTIAL Material " . Neither GAME nor Kangaroo has disclosed or discovered any other information or documentation implicating alleged fraudulent acts by Mr. Ligeri as that inquiry is not material to the claims or defenses raised in the GAME Case. Prior to issuing its Subpoena, Amazon deposed Mr. Ligeri, the principal of Kangaroo, both individually and as a corporate representative of Kangaroo, for the presumptive seven (7) hours. Amazon's counsel interrogated Mr. Ligeri on these very subjects and there is no allegation that Mr. Ligeri did not testify fully and truthfully to the best of his ability and recollection. Amazon's sole purpose behind its inquiry into this material from GAME can only be to embarrass Mr. Ligeri. This is borne out by how Amazon describes in its Subpoena the information it seeks; i. e ., reputation and fraudulent acts (note, not fraudulent " convictions ", but mere allegations), etc. Further, under Rule 401, Fed. R. Evid. relevant evidence must be " of consequence in determining the action " and 0 1 Kangaroo argues that nothing related to any alleged fraud by Mr. Ligeri is of any a consequence in this action. Also, Rule 609, Fed. R. Evid. permits, at most, evidence of prior convictions for impeachment purposes. Third party allegations of any fraud are not convictions and therefore, not relevant evidence under either Rules 401 or 609. Kangaroo | | respectfully requests that Amazon's subpoena be quashed pursuant to Rule 26 (c) . Amazon issued this Subpoena on April 23, 2018 and has sought GAME's disclosure of this information by April 30, 2018, the close of discovery and disclosure in this case. GAME has requested an additional week (to May 4, 2018) within which to provide the subpoenaed information. Since GAME's request would result in disclosure after discovery = cutoff in the instant case, Kangaroo objects to Amazon being allowed to obtain this discovery as it cannot be disclosed (and thus cannot be used) in the instance case. Amazon has known about the GAME Case since at least August 24, 2017 when it listed that case as a = NO E, possible source of evidence in its Initial Discovery Responses. A copy of Amazon's Initial Discovery Responses is attached as Exhibit 3. There is no excuse for Amazon's failure to seek this information prior to a week before the disclosure and discovery deadline. On this | ground, Kangaroo again objects to Amazon being allowed to obtain this discovery. In the alternative, Kangaroo respectfully requests that GAME be ordered to redact all information and documentation sought by Amazon in the GAME Case marked either " CONFIDENTIAL Material " and / or " ATTORNEYS ' EYES ONLY – HIGHLY CONFIDENTIAL Material " and allow Kangaroo's counsel the right to inspect such 0 redacted information and documentation prior to submitting anything to Amazon in compliance with its Subpoena. Kangaroo hereby submits a proposed form of Order for the convenience of the Court. DATED: April 27, 2018. CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP By: t ہے قهوه Timothy R. Grinlm / ' Edith I. Rudder 1400 East Southern Avenue, Suite 400 Tempe, Arizona 85282 Attorneys for Plaintiff 0 CERTIFICATE OF SERVICE - I hereby certify that on April 27, 2018, a true and correct copy of the foregoing document was electronically filed with the Clerk of the United States District Court of the District of Arizona by using the CM / ECF system, and that service will be accomplished by the ' CM / ECF system to all counsel of record. I further certify that I have mailed a true and correct copy of the foregoing document by United States Mail, first - class postage prepaid, sealed, as well as by email, addressed to: James Edward Geringer (james. geringer @ klarquist. com) Klarquist, Sparkman, L. L. P. 1 World Trade Ctr. 121 SW Salmon St ., Ste. 1600 Portland, Oregon 97204 Attorneys for Defendant Amazon. com = * E John A. Goldmark (johngoldmark @ dwt. com) Max B. Hensley (maxhensley @ dwt. com) Davis Wright Tremaine 1201 Third Ave ., Ste. 2200 Seattle, WA 89101 - 3045 Attorneys for Defendant Amazon. com an Joseph G. Adams (igadams @ swlaw. com) Peter R. Montecuollo (pmontecuollo @ swlaw. com) SNELL & WILMER, LLP One Arizona Center 400 East Van Buren, Suite 1900 Phoenix, Arizona 85004 Attorneys for Plaintiff Great American Duck Races, Inc. Vicki Goslin 0 EXHIBIT1 0 AO 88B (Rev. 02 / 14) Subpocna to Producc Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action UNITED STATES DISTRICT COURT for the District of Arizona Kangaroo Manufacturing, Inc. Plaintiff Civil Action No. CV - 17 - 1806 - PHX - SPL Amazon. com, Inc. Defendant SUBPOENA TO PRODUCE DOCUMENTS, INFORMATION, OR OBJECTS OR TO PERMIT INSPECTION OF PREMISES IN A CIVIL ACTION GREAT AMERICAN DUCK RACES, INC. To: (Name of person to whom this subpoena is directed) O Production: YOU ARE COMMANDED to produce at the time, date, and place set forth below the following documents, electronically stored information, or objects, and to permit inspection, copying, testing, or sampling of the material: See Exhibit A, attached Place: c / o John A. Goldmark Davis Wright Tremaine, LLP 1201 Third Avenue, Suite 2200, Seattle, WA 98101 | Date and Time: 04 / 30 / 2018 9: 00 am Inspection of Premises: YOU ARE COMMANDED to permit entry onto the designated premises, land, or other property possessed or controlled by you at the time, date, and location set forth below, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it. Place: Date and Time: The following provisions of Fed. R. Civ. P. 45 are attached - Rule 45 (c), relating to the place of compliance; Rule 45 (d), relating to your protection as a person subject to a subpoena; and Rule 45 (e) and (g), relating to your duty to respond to this subpoena and the potential consequences of not doing so. Date: April 23, 2018 CLERK OF COURT OR / s / John A. Goldmark Attorney's signature Signature of Clerk or Deputy Clerk The name, address, e - mail address, and telephone number of the attorney representing (name of party) Amazon. com, Inc ., who issues or requests this subpoena, are: John A. Goldmark; 1201 Third Avenue Suite 2200, Seattle, WA 98101; johngoldmark @ dwt. com; (206) 622 - 3150 Notice to the person who issues or requests this subpoena If this subpoena commands the production of documents, electronically stored information, or tangible things or the inspection of premises before trial, a notice and a copy of the subpoena must be served on each party in this case before it is served on the person to whom it is directed. Fed. R. Civ. P. 45 (a) (4) . 0 AO 88B (Rcy, 02 / 14) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action (Page 2) Civil Action No. CV - 17 - 1806 - PHX - SPL PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 45 .) I received this subpoena for (name of individual and title, if any) on (date) O I served the subpoena by delivering a copy to the named person as follows: on (date) on (date) or O I returned the subpoena unexecuted because: Unless the subpoena was issued on behalf of the United States, or one of its officers or agents, I have also tendered to the witness the fees for one day's attendance, and the mileage allowed by law, in the amount of My fees are $ for travel and $ for services, for a total of $ 0. 00 I declare under penalty of perjury that this information is true. Date: — Date: Server's signature Printed name and title Server's address Additional information regarding attempted service, etc .: 0 AO 88B (Rcv. 02 / 14) Subpocna to Produce Documents, Information, or Objects or to Perinit Inspection of Premises in a Civil Action (Page 3) Federal Rule of Civil Procedure 45 (c), (d), (e), and (g) (Effective 12 / 1 / 13) (c) Place of Compliance. (1) For a Trial, Hearing, or Deposition. A subpoena may command a person to attend a trial, hearing, or deposition only as follows: (A) within 100 miles of where the person resides, is employed, or regularly transacts business in person; or (B) within the state where the person resides, is employed, or regularly transacts business in person, if the person (i) is a party or a party's officer, or (ii) is commanded to attend a trial and would not incur substantial expense. (ii) disclosing an unretained expert's opinion or information that does not describe specific occurrences in dispute and results from the expert's study that was not requested by a party. (C) Specifying Conditions as an Alternative. In the circumstances described in Rule 45 (d) (3) (B), the court may, instead of quashing or modifying a subpoena, order appearance or production under specified conditions if the serving party: () shows a substantial need for the testimony or material that cannot be otherwise met without undue hardships and (ii) ensures that the subpoenaed person will be reasonably compensated. (c) Duties in Responding to a Subpoena. (2) For Other Discovery. A subpoena may command: (A) production of documents, electronically stored information, or tangible things at a place within 100 miles of where the person resides, is employed, or regularly transacts business in person; and (B) inspection of premises at the premises to be inspected. (d) Protecting a Person Subject to a Subpoena; Enforcement. (1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The court for the district where compliance is required must enforce this duty and impose an appropriate sanction — which may include lost carnings and reasonable attorney's fees - on a party or attorney who fails to comply. (1) Producing Documents or Electronically Stored Information. These procedures apply to producing documents or electronically stored information: (A) Documents. A person responding to a subpoena to produce documents must produce them as they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the demand. (B) Form for Producing Electronically Stored Information Not Specified. If a subpoena does not specify a form for producing electronically stored information, the person responding must produce it in a form of forms in which it is ordinarily maintained or in a reasonably usable form or forms. (C) Electronically Stored Information Produced in Only One Form. The person responding need not produce the same electronically stored information in more than one form. (D) Inaccessible Electronically Stored Information. The person responding need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the person responding must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26 (b) (2) (C) . The court may specify conditions for the discovery. (2) Command to produce Materials or Permit Inspection. (A) Appearance Not Required. A person commanded to produce documents, electronically stored information, or tangible things, or to permit the inspection of premises, need not appear in person at the place of production or inspection unless also commanded to appear for a deposition, hearing, or trial. (B) Objections. A person commanded to produce documents or tangible things or to permit inspection may serve on the party or attorney designated in the subpoena a written objection to inspecting, copying, testing, or sampling any or all of the materials or to inspecting the premises or to producing electronically stored information in the form or forms requested. The objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served. If an objection is made, the following rules apply: (c) At any time, on notice to the commanded person, the serving party may move the court for the district where compliance is required for an order compelling production or inspection. (ii) These acts may be required only as directed in the order, and the order must protect a person who is neither a party nor a party's officer from significant expense resulting from compliance. (2) Claiming Privilege or Protection. (A) Information Withheld. A person withholding subpoenaed information under a claim that it is privileged or subject to protection as trial - preparation material must: (i) expressly make the claim; and (ii) describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim. (B) Information Produced. If information produced in response to a subpoena is subject to a claim of privilege or of protection as trial - preparation material, the person making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information under seal to the court for the district where compliance is required for a determination of the claim. The person who produced the information must preserve the information until the claim is resolved. (3) Quashing or Modifying a Subpoena. (A) When Required. On timely motion, the court for the district where compliance is required must quash or modify a subpoena that: () fails to allow a reasonable time to comply; (ii) requires a person to comply beyond the geographical limits specified in Rule 45 (c): (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden. (B) When Permitted. To protect a person subject to or affected by a subpoena, the court for the district where compliance is required may, on motion, quash or modify the subpoena if it requires: (1) disclosing a trade secret or other confidential research, development, or commercial information; or (g) Contempt. The court for the district where compliance is required and also, after a motion is transferred, the issuing court - may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena or an order related to it. For access to subpocna materials, scc Fed. R. Civ. P. 45 (a) Committee Note (2013) . 0 Exhibit A Definitions Document. " Document " has the same meaning as provided in Federal Rule of Civil Procedure 34 and includes tangible things. Ni Kangaroo. " Kangaroo " means " Kangaroo Manufacturing, Inc ., " the Plaintiff in this action. Great American Duck v. Kangaroo. " Great American Duck v. Kangaroo " means the case of Great American Duck Races, Inc. v. Kangaroo Mfg ., Inc ., et al ., No. 17 - cv - 00212 - ROS (D. Ariz .) . Documents to be produced: 1. Request 1: The transcripts, including all exhibits, of all depositions taken in Great American Duck v. Kangaroo. Request 2: All documents produced or obtained in Great American Duck v. Kangaroo containing information that refers or relates the reputation, prior litigation history, previous fraudulent acts, or use (whether proper or improper) of any part of the Amazon. com marketplace by either Kangaroo or its principal, Justin Ligeri. Request 3: All documents produced or obtained in Great American Duck v. Kangaroo containing information that refers or relates the reputation, prior litigation history, previous fraudulent acts, or use (whether proper or improper) of any part of the Amazon. com marketplace by any entities affiliated with Kangaroo or Justin Ligeri, including without limitation, Yagoozon, Inc ., and Pennies2Platinum, Inc. 4850 - 0353 - 7250v. 1 0051461 - 001587 0 EXHIBIT 2 Casse22177cgvo (8062SPPS Dochment 3 6 Fifeta 0041718 7 Page 4 off 40 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Great American Duck Races, Inc ., an Arizona corporation, No. CV - 17 - 212 - PHX - ROS | STIPULATED PROTECTIVE ORDER Plaintiff - Counterclaim Defendant, Kangaroo Manufacturing, Inc ., a Florida corporation, and Yagoozon, Inc ., a Rhode Island corporation, Defendants Counterclaimants. Pursuant to the Parties ' stipulation, and good cause appearing, IT IS ORDERED the motion (Doc. 25) is GRANTED as set forth below. IT IS FURTHER ORDERED the Parties shall comply with the following: A. Definitions 1. " Party ": any party to this action, including all of its officers, directors, employees, consultants, retained experts, and outside counsel (and their support staff) . 2. " Material ": all information, testimony, documents and things produced, served or otherwise provided in this action by the Parties or by non - parties. 3. " CONFIDENTIAL Material ": information, documents, and things the Case 2: 17 - CV - 01808 - BRIS Doccheri 636 Filter0442241B Page 15 of 40 F NON 1 | Designating Party believes in good faith are not generally known to others, and which the Designating Party (i) would not normally reveal to third parties except in confidence or has undertaken with others to maintain in confidence, or (ii) believes in good faith is protected by a right to privacy under federal or state law or any other applicable privilege or right related to confidentiality or privacy. 4. " ATTORNEYS ' EYES ONLY - HIGHLY CONFIDENTIAL Material ": information, documents, and things the Designating Party believes in good faith are not generally known to others and has significant competitive value such that unrestricted disclosure to others would create a substantial risk of serious injury and harm to the competitive position of the Designating Party, and which the Designating Party (i) would not normally reveal to third parties except in confidence or has undertaken with others to maintain in confidence, or (ii) believes in good faith is significantly sensitive and 13 | protected by a right to privacy under federal or state law or any other applicable privilege or right related to confidentiality or privacy. The designation is reserved for information that constitutes proprietary financial, technical, competitive, or commercially sensitive information that the Producing Party maintains as highly confidential in its business, including but not limited to information relating to: the composition of current and future products; strategic plans; non - public financial data; documents that would reveal trade secrets; and settlement agreements or settlement communications, the disclosure of which is likely to cause harm to the competitive position of the Producing Party. This designation also includes Material obtained from a non - party pursuant to a current | Nondisclosure Agreement ("NDA"), unless the non - party permits a different designation | | in writing. ATTORNEYS ' EYES ONLY - HIGHLY CONFIDENTIAL Material shall include all Material referring or relating to the foregoing, including but not limited to copies, summaries, and abstracts of the foregoing. 5. " Producing Party ": a Party or non - party that produces Material in this,,,:: ' H action. 6. " Receiving Party ": a Party that receives Material from a Producing Party. Case 2: 17 - / 201806 - SRPS Document 636 Fleecb44221187 Pragee16 off 40 7. " Designated Material ": Material that is designated " CONFIDENTIAL " or " ATTORNEYS ' EYES ONLY - HIGHLY CONFIDENTIAL " under this Order. 8. " Designating Party ": a Party or non - party that designates information, documents or things that it produces in disclosures or in responses to discovery as " CONFIDENTIAL " or " ATTORNEYS ' EYES ONLY - HIGHLY CONFIDENTIAL. " 9. " Counsel of Record ": (i) outside counsel who appears on the pleadings as counsel for a Party; (ii) partners, associates, and employees of such outside counsel to | whom it is reasonably necessary to disclose the information for this litigation, including supporting personnel employed by the attorneys, such as paralegals, legal translators, legal secretaries, legal clerks and shorthand reporters; and (iii) if appointed by the Court, an Arbitrator (s) or Mediator (s) and his or her partners, associates, and employees to whom it is reasonably necessary to disclose the information for this litigation. 10. " Outside Consultant ": a person with specialized knowledge or experience in a matter pertinent to the litigation who has been retained by a Party or Counsel of Record to serve as an expert witness or as a consultant in this action and who is not a current employee of a Party or of a competitor of a Party and who, at the time of retention, is not anticipated to become an employee of a Party or of a competitor of a Party. 11. " Professional Vendors ": persons or entities that provide litigation support services (e. g ., photocopying; organizing, storing, or retrieval of data in any form or medium; videotaping; translating; designing and preparing exhibits, graphics, or demonstrations; etc .) and their employees and subcontractors. This definition includes a professional jury or trial consultant retained in connection with this litigation and mock jurors retained by such a consultant to assist them in their work. B. Scope 12. The protections conferred by this Order cover not only Designated Material 26 | (as defined above), but also any information copied or extracted therefrom, as well as all copies, excerpts, summaries, or compilations thereof. Nothing herein shall alter or change 28 | | in any way the discovery provisions of the Federal Rules of Civil Procedure or the Court's Case 217 - cv - 01806 - SEIS Ddocumepit 636 Filteld044271187 Hagee14 off 40 deadlines as ordered. Identification of any individual pursuant to this Protective Order Na un AN - does not make that individual available for deposition or any other form of discovery outside of the restrictions and procedures of the Federal Rules of Civil Procedure, and the Court's deadlines as ordered. Access to Designated Material | 13. CONFIDENTIAL Material: Unless otherwise ordered by the Court or permitted in writing by the Designating Party, a Receiving Party may disclose any information, document, or thing designated " CONFIDENTIAL " only to: (a) employees of the Receiving Party to whom disclosure is reasonably necessary for the management, supervision, or oversight of this litigation and who have signed the " Agreement To Be Bound By Protective Order " attached hereto as Exhibit A; (b) persons who appear on the face of Designated Material as an author, addressee, or recipient thereof; (c) Counsel of Record; (e) witnesses at deposition, provided that such witnesses may not retain copies of Designated Material unless permitted by other provisions of this Order; (f) the Court and its personnel; court reporters; (h) Outside Consultants of the Receiving Party to whom disclosure is reasonably necessary for this litigation and who have signed the " Agreement To Be Bound Protective Order " attached hereto as Exhibit A and the " Certification Of Consultant " attached hereto as Exhibit B; and (i) Professional Vendors to which disclosure is reasonably necessary for this litigation and a representative of which has signed the " Agreement To Be Bound By Protective Order " attached hereto as Exhibit A. 14. ATTORNEYS ' EYES ONLY - HIGHLY CONFIDENTIAL Material: 27 | | Unless otherwise ordered by the Court or permitted in writing by the Designating Party, a Receiving Party may disclose any information, documents, or things designated BV Prole Case 2: 17 - cv - 00806 - SRIS Doolimerit 1636 Filiéeld040271187 Page 18 off 40 NA UNA ATTORNEYS ' EYES ONLY - HIGHLY CONFIDENTIAL Material only to: (a) persons who appear on the face of Designated Material as an author, addressee, or recipient thereof; (b) Counsel of Record; (e) the Court and its personnel; (f) court reporters; (g) Outside Consultants of the Receiving Party to whom disclosure is reasonably necessary for this litigation and who have signed the " Agreement To Be O Bound By Protective Order " attached hereto as Exhibit A and the " Certification Of | Consultant " attached hereto as Exhibit B; and | (h) Professional Vendors to which disclosure is reasonably necessary for 12 | this litigation and a representative of which has signed the " Agreement To Be Bound By Protective Order " attached hereto as Exhibit A. 15. Each person to whom Designated Material may be disclosed, and who is required to sign the " Agreement To Be Bound By Protective Order " attached hereto as Exhibit A, shall do so before the time such Designated Material is disclosed to him or her. Counsel for a Party who makes any disclosure of Designated Material shall retain each original executed certificate and, upon written request, shall provide copies to counsel for all other parties at the termination of this action. 16. At the request of the Designating Party, persons not permitted access to 21 | Designated Material under the terms of this Protective Order shall not be present at | depositions while the Designating Party's Designated Material is discussed or otherwise disclosed. Pre - trial proceedings shall be conducted in a manner, subject to the supervision of the Court, to protect Designated Material from disclosure to persons not authorized to have access to such Material. D. Use of Designated Material 17. Use of Designated Material by Receiving Party. Unless otherwise 28 | ordered by the Court or agreed to in writing by the Parties, all Designated Material and all Case 2: 17 - CV - 01806 - SRUS Doocument 636 Amételd 442771187 Ragee10 of 10 information derived therefrom shall be used by the Receiving Party only for purposes of this litigation and shall not be used in any other way whatsoever. Information contained or reflected in Designated Materials shall not be disclosed in conversations, presentations (by parties, counsel, vendors, experts, consultants, or otherwise), in court or in other settings that might reveal Designated Material, except in accordance with the terms of this Order. 18. Use of Designated Material by Designating Party. Nothing in this Order 8 shall limit any Designating Party's use of its own documents and information, nor shall it prevent the Designating Party from disclosing its own confidential information, documents, or things to any person. Such disclosure shall not affect any designations made pursuant to the terms of this Order, so long as the disclosure is made in a manner 12 | that is reasonably calculated to maintain the confidentiality of the information. E. Procedure for Designating Materials 19. Subject to the limitations set forth in this Order, a Designating Party may designate as " CONFIDENTIAL " information the Designating Party believes in good faith meets the definition set forth in Paragraph 3 above, and a Designating Party may | | designate as " ATTORNEYS ' EYES ONLY - HIGHLY CONFIDENTIAL " information the 18 | | Designating Party believes in good faith meets the definition set forth in Paragraph 4 above. 20. Any Material (including physical objects) made available for initial inspection by counsel for the Receiving Party prior to producing copies of selected items shall be subject to this Order and shall initially be considered, as a whole, to constitute " ATTORNEYS ' EYES ONLY - HIGHLY CONFIDENTIAL " information until the ten (10) business - day period discussed below has expired, at which time copies of selected 25 | items produced shall constitute " CONFIDENTIAL " information unless marked otherwise 26 | | by a Designating Party. The Producing Party shall have ten (10) business days from the 27 | | written notification by the Receiving Party of the selected items that Receiving Party would like produced to review and designate the appropriate documents as Case 2 17 - CV - 01806 - SRDS Dooarment 636 Riléel 44221187 Plage 20 off 20 ONA un AN - " CONFIDENTIAL " and / or " ATTORNEYS ' EYES ONLY - HIGHLY CONFIDENTIAL " prior to furnishing copies to the Receiving Party. 21. Except as otherwise provided in this Order or as otherwise stipulated or ordered, Material that qualifies for protection under this Order must be designated in accordance with this Section E before the Material is disclosed or produced. 22. Designation in conformity with this Order requires: (a) For information in documentary form (apart from transcripts of depositions or other pretrial or trial proceedings), the Producing Party shall affix the legend " CONFIDENTIAL " or " ATTORNEYS ' EYES ONLY - HIGHLY CONFIDENTIAL " on each page that contains Designated Material. (b) For testimony given in deposition or in other pretrial proceedings, the 12 | Designating Party shall specify any portions of the testimony that it wishes to designate as 13 | " CONFIDENTIAL " or " ATTORNEYS ' EYES ONLY - HIGHLY CONFIDENTIAL. " In the case of depositions, the Designating Party may also designate any portion of a deposition transcript as " CONFIDENTIAL " or " ATTORNEYS ' EYES ONLY - HIGHLY CONFIDENTIAL " by informing the reporter and all Parties in writing within thirty (30) calendar days of receipt of the deposition transcripts of the designations to be applied. All 18 | deposition transcripts not marked during the deposition will nonetheless be treated as 19 | " ATTORNEYS ' EYES ONLY - HIGHLY CONFIDENTIAL " until the thirty (30) day period has expired at which time they will be considered " CONFIDENTIAL " unless marked otherwise by a Designating Party. (c) For information produced in some form other than documentary, and for any other tangible items, the Producing Party shall affix in a prominent place on the exterior of the container or containers in which the information or thing is stored the legend " CONFIDENTIAL " or " ATTORNEYS ' EYES ONLY - HIGHLY | CONFIDENTIAL. " F. Inadvertent Failure to Designate 23. An inadvertent failure to designate qualified information, documents, or = * Aaaaaa Case 2: 17 - cv - 0080. 6 - SIRLS Doociment 1636 Hilibet104427, 187 Page 21 of 10 | | things as " CONFIDENTIAL " or " ATTORNEYS ' EYES ONLY - HIGHLY CONFIDENTIAL " does not waive the Designating Party's right to secure protection | under this Order for such Material. Upon discovery of an inadvertent failure to designate, | a Producing Party must promptly notify the Receiving Party in writing that the Material is to be designated as " CONFIDENTIAL " or " ATTORNEYS ' EYES ONLY - HIGHLY CONFIDENTIAL. " Upon receipt of such notice, the Receiving Party must make all reasonable efforts to assure that the Material is treated in accordance with the terms of this Order, subject to the right to challenge the propriety of such designation (s) . The Producing Party shall provide substitute copies of documents bearing the confidentiality 10 | | designation. Any Receiving Party will also make all reasonable efforts to retrieve any documents from anyone who had received the documents prior to the notification to the Receiving Party of the inadvertent failure to designate. G. Filing Designated Material 24. Without written permission from the Designating Party or a Court Order secured after appropriate notice to all interested persons, a Party may not file in the public record in this action any Designated Material, but must file such Designated Material under seal in conformance with the Court's local rules and procedures. Material filed under seal shall include a cover page including the words " FILED UNDER SEAL. " H. Challenges to Confidentiality Designations 25. The parties will use reasonable care when designating documents or information as " CONFIDENTIAL " or " ATTORNEYS ' EYES ONLY - HIGHLY CONFIDENTIAL. " Nothing in this Order shall prevent a Receiving Party from contending that any or all documents or information designated as CONFIDENTIAL Material or ATTORNEYS ' EYES ONLY - HIGHLY CONFIDENTIAL Material have been improperly designated. A Receiving Party may at any time request that the 26 | Producing Party cancel or modify the confidentiality designation with respect to any document or information contained therein, subject to the procedure in Paragraph 26. 26. A Party shall not be obligated to challenge the propriety of a Case 2: 17 - cv - 0080B - BRIS Domumente3 filed 04 | 27 / 08 Page 22c0f140 " CONFIDENTIAL " or " ATTORNEYS ' EYES ONLY - HIGHLY CONFIDENTIAL " designation at the time made, and the failure to do so shall not preclude a subsequent challenge thereto. Such a challenge shall be written, shall be served on counsel for the Producing Party, and shall particularly identify by Bates number and set forth for each such document or transcript of testimony the specific reason the Receiving Party believes 6 | the designation is improper for the document or testimony that the Receiving Party contends should be designated differently. In the event of such a challenge by the | | Receiving Party, the parties shall meet and confer by telephone or in person within five (5) business days after the challenge is made to try to resolve the matter by agreement. If agreement cannot be reached, the parties promptly shall arrange for a call with the Court | to seek resolution of the dispute. Protected Material Subpoenaed or Ordered Produced In Other Litigation 27. If a Receiving Party is served with a subpoena or a court order that would compel disclosure of any information, documents, or things designated in this action as " CONFIDENTIAL " or " ATTORNEYS ' EYES ONLY - HIGHLY CONFIDENTIAL, " the 17 | Receiving Party must so notify the Designating Party in writing (by fax or email) | promptly as soon as reasonably possible and in any event, before any compliance under such subpoena or court order is requested or required. Such notification must include a 20 | copy of the subpoena or order. The Receiving Party also must inform in writing the party who caused the subpoena or order to issue that some or all of the material covered by the subpoena or order is the subject of this Protective Order and provide a copy of this Protective Order to that party. The purpose of imposing these duties is to alert the interested parties to the existence of this Protective Order and to afford the Designating Party in this case an opportunity to protect its confidentiality interests in the court from | | which the subpoena or order issued. The Designating Party shall bear the burdens and the expenses of seeking protection in that court of its Designated Material. Nothing in these provisions should be construed as authorizing or encouraging a Receiving Party in this 0 ESS UNAN | 1 | action to disobey a lawful directive from another court. J. Unauthorized Disclosure of Designated Material 28. If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Designated Material to any person or in any circumstance not authorized under this Order, the Receiving Party must promptly (a) notify in writing the Designating Party 6 | | of the unauthorized disclosures, (b) use its best efforts to retrieve all copies of the Designated Material, (c) inform the person or persons to whom unauthorized disclosures | were made of all the terms of this Order, and (d) request such person or persons to execute the " Acknowledgment and Agreement to Be Bound " that is attached hereto as Exhibit A. K. Non - Party Use of this Protective Order 29. A non - party producing information or Material voluntarily or pursuant to a subpoena or a court order may designate such Material or information in the same manner and shall receive the same level of protection under this Protective Order as any Party to this lawsuit. 30. A non - party's use of this Protective Order to protect its " CONFIDENTIAL " | Material or " ATTORNEYS ' EYES ONLY - HIGHLY CONFIDENTIAL " Material does | not entitle that non - party access to " CONFIDENTIAL " Material or " ATTORNEYS ' EYES ONLY - HIGHLY CONFIDENTIAL " Material produced by any Party in this case. L. Duration 31. Even after the termination of this action, the confidentiality obligations | | imposed by this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order otherwise directs. M. Final Disposition 32. Unless otherwise ordered or agreed in writing by the Producing Party, 25 | | within sixty (60) calendar days after the final disposition of this action, each Receiving 26 | Party must destroy or return all Designated Material to the Producing Party. As used in 27 | this Paragraph, " all Designated Material " includes all copies, abstracts, compilations, summaries, or any other form of reproducing or capturing any of the Designated Material. 10 Czase 2 117 - 03 C001806 - Document BB Filed 04 / 27 / 18 Page 24 of 40 The Receiving Party must submit a written confirmation of the return or destruction to the Producing Party (and, if not the same person or entity, to the Designating Party) by the 60 | | day deadline. Notwithstanding this provision, Counsel of Record may retain a copy for | archival purposes of pleadings, motion papers, any documents or materials filed or used in court, exhibits, or demonstratives offered or introduced into evidence at trial, 1 L lal, Tegal memoranda, correspondence, or attorney work product, even if such materials contain 7 | Designated Material. Counsel of Record may also retain a copy of deposition and trial transcripts (including exhibits) of the current and former employees and experts of the Party that each respective Counsel of Record represents, expert reports (including 10 | exhibits) produced by the experts of the Party that each respective Counsel of Record 11 | represents, and discovery requests and responses (including exhibits) produced by the Party that each respective Counsel of Record represents, even if such materials contain Designated Material. Any such archival copies that contain or constitute Designated 14 | Material remain subject to this Protective Order as set forth in Section L (Duration), above. Miscellaneous 33. Any of the notice requirements herein may be waived, in whole or in part, 18 | but only by a writing voluntarily and explicitly agreeing to such waiver signed by the | Counsel of Record for the Party against whom such waiver will be effective. 34. This Order is entered without prejudice to the right of any Party to apply to | the Court at any time for additional protection or to relax or rescind the restrictions of this | Order, when convenience or necessity requires. No Party waives any right it otherwise would have to object to disclosing or producing any information, documents, or things on any ground not addressed in this Protective Order. Similarly, no Party waives any right to object on any ground to the use in evidence of any of the Material covered by this Protective Order. 35. This Order shall not diminish any existing obligation or right with respect to 28 | Designated Material, nor shall it prevent a disclosure to which the Designating Party 0 oOaIAN | | consents in writing before the disclosure takes place. 36. The United States District Court for the District of Arizona is responsible 3 | for the interpretation and enforcement of this Protective Order. All disputes concerning Designated Material produced under the protection of this Protective Order shall be resolved by the United States District Court for the District of Arizona. Every individual who receives any Designated Material agrees to subject himself or herself to the jurisdiction of this Court for the purpose of any proceedings related to performance under, | compliance with, or violation of this Order. 37. This Protective Order does not apply to trial, and the use of Material at trial will be subject to a separate order. Dated this 21st day of April, 2017. Mulo Honorable Roslyn O. Silver Senior United States District Judge como OSTAT 0 EXHIBIT A ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND BY PROTECTIVE ORDER _ [ print or type full name ], state: 1. I reside at 2. My present employer is 3. My present occupation or job description is _ _ 4. I agree to keep confidential all information provided to me in the matter of Great American Duck Races, Inc. v. Kangaroo Manufacturing, Inc. et al ., Civil Action | No. 2: 17 - cv - 00212 - ROS in the United States District Court for the District of Arizona, and to be subject to the authority of that Court in the event of any violation or dispute related to this agreement. 5. I have been informed of and have reviewed the Protective Order entered in | | this case, and I will not divulge any information, documents, or things that are subject to | the Protective Order, except in accordance with the provisions of the Order. I state under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on [ Date ] [ printed name ] _ [ signature ] 0 EXHIBIT B CERTIFICATION OF CONSULTANT _ [ print or type full name ], of DONA A UN _ am not an employee of the Party who retained me, or of a competitor of a Party. If, at any time after I execute this Certification of Consultant and during the pendency of the Action, I become an employee of a Party or a competitor of a Party, I will promptly inform the counsel for the Party who retained me in the Action, and I will not thereafter review any Designated Materials marked by any Party as " ATTORNEYS ' EYES ONLY HIGHLY CONFIDENTIAL " unless and until the Parties agree or the Court orders 11 | otherwise. Nothing in the foregoing precludes a Designating Party from sharing its own Designated Materials with its consultants or employees. I state under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on [ date ] [ printed name ] [ signature ] | 0 EXHIBIT 3 0 JAMES E. GERINGER (admitted pro hac vice) james. geringer @ klarquist. com KLARQUIST SPARKMAN, LLP 121 SW Salmon Street, Suite 1600 Portland, Oregon 97204 Facsimile: (503) 595 - 5301 Telephone: (503) 595 - 5300 Counsel for Defendant AMAZON. COM, INC. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Kangaroo Manufacturing, Inc ., Case No .: CV - 17 - 1806 - PHX - SPL Plaintiff, | Amazon. com, Inc ., Defendant. AMAZON'S INITIAL DISCOVERY RESPONSES 1. State the names and, if known, the addresses and telephone numbers of all persons who you believe are likely to have discoverable information relevant to any party's claims or defenses, and provide a fair description of the nature of the information each such person is believed to possess. A - Yuichi Amano, Manager, Vendor Management, Amazon. Mr. Amano is expected to have information relevant to the supply chain for products accused in the complaint. Mr. Amano may be contacted thru Amazon's litigation counsel. B - Zack Hatton, ESR Account Manager, Executive Seller Relations Team, Amazon. Mr. Hatton may have information relevant to efforts made to assist plaintiff or its agents prior to suit. Mr. Hatton may be contacted thru Amazon's litigation counsel. 0 C - Justin Ligeri, Kangaroo and Pennies 2 Platinum are expected to have knowledge relevant to at least: 1) Amazon's communications, including agreements, with (a) plaintiff, (b) Pennies 2 Platinum, and (c) other entities who have sold Kangaroo products or services on Amazon. com; 2) the use, strength, value, ownership and licensing of each of the trademarks asserted in the complaint; 3) Kangaroo's reputation and any good will allegedly associated with any of the trademarks in suit; 4) Mr. Ligeri's and Kangaroo's pre - suit awareness of the terms business between Pennies 2 Platinum and Amazon; 5) sales on Amazon. com and elsewhere of Kangaroo products; azo com 6) the manufacture and chain of distribution of the alleged " genuine " goods at issue in the complaint; 7) trademark and copyright licenses granted to Amazon by sellers on Amazon, including Pennies 2 Platinum; 8) any other facts relating to Kangaroo's alleged damages; 9) the asserted source and nature of Amazon's alleged duties to Kangaroo; 10) the name, nature and activities on Amazon. com of entities subject to common control with Kangaroo. D - Vendors. Three vendors are believed to have sold products to Amazon that are accused in this matter. 2 0 a) For B06XB5LD52: TWTDREAM LLC, twtdream @ outlook. com, (281) 899 - 0248 b) For B0182WBENE: Oasis Supply, 7 Penn Center, 12th Floor, 1635 Market Street, Philadelphia, PA 19103 2212. Represented by David M. Tener of Caesar Rivise, PC, dtener @ crbcp. com c) For B01832551C: PuTwo Inc, Kiros Zong (kiros @ putwo. com), Steven Chen (steven @ putwo. com), (626) 217 - 0701 | E - Third party sellers are expected to have knowledge relating to the sales of accused products. A list of third party seller names and contact information follows for each of the four products accused in the complaint. (Some " third party " sellers may be controlled by or subject to common control with Kangaroo) . Third Party Sellers: Seller's name Seller's contact email 123Stores, Inc. 507 Corporate Deals AcuSource Group Ama Andrei Uvarov App Production LLC BH RS INC Big Wheel Distribution LLC BinBin Brayson A Verzella Bruce Bilow Bushi Frog Enterprises Carol C. Caskey Cell Lounge Inc. Charred Gear, Inc. | CHENG SHIJIA Clickamin Coco James LLC D2R INTERNATIONAL LLC B0182WBENE stores @ 123greetings - inc. com amazonsellersmith @ gmail. com leland l @ yahoo. com skuama @ hotmail. com awsru @ uvarov. info discountwarehousel @ outlook. com hershysofer @ gmail. com az @ bigwheeldistribution. com dengxingbin 8840 @ sina. com braysonv3 @ gmail. com doctorbru @ aol. com christopherfauteux @ me. com vzksdj89sasdk @ outlook. com schneur @ celldistributors. net todd @ charredgear. com bilila wu32 @ hotmail. com kenny @ clickamin. com cocojames. us @ gmail. com | d2rinternationalny @ gmail. com 3 0 teresapcetz @ yahoo. com 1072510395 @ qq. com edealsdirectl @ gmail. com familyserver @ 163. com anggebanana @ tom. com 664303508 @ qq. com baofei87 @ 163. com homebuddyez @ gmail. com glp5vlna3fz1 @ hotmail. com fullautumn @ hotmail. com wdahuil @ sina. com willettafundo @ yahoo. com globesell @ outlook. com trzgam @ gmail. com niujingsong @ outlook. com debra Solis DJ Wheel E Deals Direct, LLC Familyserver FAN RONG fantasy - EF Feifei Bao FFMH Investments, LLC Frank Stephens Fullautumn Gang Li Garth Hogan Globesell GREGGIE, LLC guojieyangh HK MEIYUTING ELECTRONIC TECHNOLOGY CO ., LIMITED huang mei Hugo pulling Huma. ne INC Ilucobres USA Corp JIAN MEI XU Joshua C Moyer Julia Joe, inc kang yuanning Kringles Toys and Gifts, LLC Kxhsa Mier Lance Reeves LI DONGLING | li shaohai Li Yuranrong LIANG YAO Liu Shaohua MALATUS mchoice mike murphy M - SHOP muhammed cevad cevik MyShirt Now LLC NICHOLAS WOOLDRIDGE ONLINE DISTRIBUTION INC meiyuting0819 @ hotmail. com zafp58629139 @ 163. com sailorcloud5 @ outlook. com jheinz @ gmail. com addapar78 @ hotmail. com lygum5. 2014 @ gmail. com jemoyer. ent @ gmail. com chriskrainik @ gmail. com sinasinkang @ hotmail. com idpowersellers @ kringlesinc. com renzolorennde @ yahoo. com amazonsales @ thedealagency. com creazydog8 @ outlook. com sevennighten @ sohu. com honor2008 @ outlook. com lygft5. 2014 @ gmail. com liushaohua3709 @ tom. com infomalatus @ gmail. com 44366680 @ qq. com murf2222 @ gmail. com world @ grpking. com mcevad 34 @ hotmail. com allensshirts @ gmail. com deyywur88tn @ outlook. com ligcentral @ gmail. com 0 oscar stephano salinas stephanosalinas 1712 @ gmail. com Pennies 2 Platinum Business Solutions Inc amazon @ yagoozon. com | Poshelo LLC paulmacapagal @ gmail. com PRIMETIMEDEALS LLC ryan. snickles @ gmail. com RenFeng smosee @ sina. com Ronda Torch ronda @ helpmerondathings. com RPM Motors of Space Coast amazon @ 24hrsdeals. com | Ryan T. Ridlon ryantridlon @ mail. com Sale Frenzy LLC hammylyaakov @ gmail. com Samuel Linkey Samuellinkey @ gmail. com Samuel Smith spsmith1201 @ yahoo. com Sean Rasmussen sirsiras @ hotmail. com Securing Freedom LLC securingfreedom @ gmail. com shanghai keyi qiche peijian youxian gongsi cibei145108284 @ 163. com Shangmeiyezi Enterprise Management Co ., ltd. kevinjacy1314 @ hotmail. com Shenzhen Carlo Rui Trading Limited Company 394441330 @ qq. com shenzhen manruta technology co ., ltd amazonbusiness @ 126. com ShenZhen WeiLing Techlonogy [ sic ] Trade CO ., LTD valink2014 @ outlook. com Shenzhenshi Ai Tuo Dianzi Shangwu Youxiangongsi Iwlhj07 @ 163. com Shenzhenshi Bonisi Dianzi Youxian Gongsi oback @ sohu. com Shenzhenshi Mosenshi Keji Youxian Gongsi | ounice10 @ hotmail. com shenzhenshifupingshiyeyouxiangongsi 2372705565 @ qq. com Simetra Trading - Ryan Gnesin ryan. gnesin @ simetratrading. com southerd southerd @ outlook. com sportdeals4u davidg @ Wowzzer. com Sunshine Unlimited, LLC - Roger King info @ sunshineunlimited. biz surgical - supply centralhomecare @ hotmail. com Suzanne Finder suzanne @ suzannefinder. com Terry D Scroggins terryandstaci @ yahoo. com Toy Vault LLC service @ toysvaultstore. com Treasure Ventures LLC gianna. schrock @ gmail. com Troy Eubanks emeditrosebuk @ yahoo. com Wallaby, LLC christina @ bodycenteredleadership. com 0 Warehouse Deals, Inc Weifeng Xu WU QIONGYAO Xiaojin Xi xu minquan Xu Zi Hua YE QIUPING zhangcongyue ZhenSheng Wang Zhong yi tian gong (beijing) ke ji you xian gong si [ contact through Amazon counsel ] leendo99 @ gmail. com wuqiongyao12319046 @ hotmail. com agibaxl @ gmail. com 470902720 @ qq. com lindasuhappy @ yeah. net autumn68 @ outlook. com qunbodong @ hotmail. com wzsymd @ 126. com joannezhou888us @ yahoo. com B01832551C 123Stores, Inc. stores @ 123greetings - inc. com Barbara A Culbertson bculbertson @ pldi. net BH RS INC hershysofer @ gmail. com Casemall casemall @ outlook. com Charred Gear, Inc. todd @ charredgear. com chenzuoyou chenzuovou88 @ yahoo. com Clickamin kenny @ clickamin. com Coco James LLC cocojames. us @ gmail. com Doo Enterprise greatlildeal @ yahoo. com Elevin levin09 @ outlook. com Ella Pring armitage. claire @ mail. com GREGGIE, LLC trzgam @ gmail. com Gunyah Trading PTY LTD gunyahtrading @ gmail. com ICATCH INC icatchinc @ hotmail. com Jamri jamritech @ hotmail. com Li Yuranrong honor2008 @ outlook. com Luslic zhenmeite 1223 @ outlook. com MALATUS infomalatus @ gmail. com Midas International Pte Ltd giveittoben @ gmail. com MIKE CLARK INC team @ mikeclar. com mike murphy murf2222 @ gmail. com OEMXS, Inc kalley @ oemxs. net Pennies 2 Platinum Business Solutions Inc amazon @ yagoozon. com Poshelo LLC paulmacapagal @ gmail. com Pu Tian Shi Rong Sheng Shang Mao Company, Ltd. chengingshu 168 @ yahoo. com qingdao jinbang dazong shangpin | jiaoyi zhongxin yo 13524816712 @ 163. com 0 50 ya UIA WN - | Real Basics Corp isaac @ realbasicsny. com | Revolution Performance Motorsports, LLC sales @ sixexpress. com Ronda Torch ronda @ helpmerondathings. com Roney Innovations LLC stephen @ rone yinnovations. com Samuel Linkey samuellinkey @ gmail. com Samuel Smith spsmith 1201 @ yahoo. com Sandra Jones ifdong2 @ 163. com Serena Su serenahappygo @ outlook. com shagnhaishi songjiangqu jiutingzhen yanke bianlidi 15921147036 @ 163. com shenzhenshifupingshiyeyouxiangongsi 2372705565 @ qq. com sportdeals4u davidg @ wowzzer. com Taskeen Ahsan taz. ahsan @ gmail. com tracywoo wd499708119 @ outlook. com Will Merrifield zenithinvesting @ gmail. com Xiaojin Xi agibaxl @ gmail. com Xie Guangzhi xieguangzhi766 @ outlook. com Your Online Solutions LLC ryan. corkill @ outlook. com Zebratown zebratown @ outlook. com ZhenSheng Wang wzsymd @ 126. com Zhong Yu 13144857494 @ 163. com Zhou Wenjuan aoyuba @ sina. com 5 5 TE 8 ACME Products, Inc. All Things Toys Battle city game CCG Unlimited Corp. Coolinko Inc. Funnom Inc. IF Merchandise LLC Ken Chong Moddan Inc. NB classics inc Swift Buy, Inc. The Ducky Depot Inc. Toy Vault LLC Wise Buys Online Corp B01J2ARTJS acmeproductsco @ gmail. com sales. allthingstoys @ gmail. com sceptre 1983 @ gmail. com sales @ ccgunlimited. com coolinkoamazon @ gmail. com funnomproducts @ gmail. com cpfhome02 @ gmail. com small trees @ yahoo. com moddaninc @ gmail. com nshtesl @ gmail. com swiftbuyamazon @ gmail. com duckydepot @ bellsouth. net service @ toysvaultstore. com wbolinc @ gmail. com 8 8 88 B06XB5LD52 0 | ACME Products, Inc. BB Games Coolinko Inc. Derrick Management Group Funnom Inc. IF Merchandise LLC Low Price Club Toy Vault LLC acmeproductsco @ gmail. com amychong822 @ gmail. com coolinkoamazon @ gmail. com dmgroup333 @ gmail. com funnomproducts @ gmail. com cpfhome02 @ gmail. com amzlpc @ gmail. com service @ toysvaultstore. com F - IF Merchandise is expected to have information relating to Kangaroo's reputation and trademark claims. Contact information for counsel believed to represent IF Merchandise in IF Merchandise, LLC et al. v Kangaroo, 3: 17 - cv - 01230 (D. Conn .) is provided below. David Fink Fink & Johnson 7519 APACHE PLUME HOUSTON, TX 77071 Telephone (713) 729 - 4991 e - mail: texascowboy6 @ gmail. com Other parties who are suing or have sued Kangaroo may also have relevant information, including: Lions Gate v Kangaroo, Justin Ligeri, et al ., 2: 12 - cv - 10653 - JFW - FFM (C. D. Ca .) Oriental Trading Company, Inc. et al v. Yagoozon, Inc ., 8: 13 - cv - 351 (D. Neb .) Rubies Costume Co. v Kangaroo, Yagoozon, Ligeri, 2: 16 - cv - 06517 (E. D. N. Y .) BigMouth LLC v. Kangaroo Manufacturing, Inc ., 3: 17 - cv - 01297 (D. Conn .) Great American Duck Races, Inc. v. Kangaroo, Yagoozon, 2: 17 - cv - 00212 - ROS (D. Az .) . erican 0 2. State the names and, if known, the addresses and telephone numbers of all persons who you | believe have given written or recorded statements relevant to any party's claims or defenses. Unless you assert a privilege or work product protection against disclosure under applicable law, attach a copy of each such statement if it is in your possession, custody, or control. If not in your possession, custody, or control, state the name and, if known, the address and telephone number of each person who you believe has custody of a copy. Amazon is aware that IF Merchandise has filed suit against Kangaroo on subject matter that appears to be relevant to at least one claim or defense in this case. At this time, Amazon is not aware of any other written or recorded statements relevant to any party's claims or defenses in this case. 3. List the documents, electronically stored information ("ESI"), tangible things, land, or other property known by you to exist, whether or not in your possession, custody or control, that you believe may be relevant to any party's claims or defenses. To the extent the volume of any such materials makes listing them individually impracticable, you may group similar documents or ESI into categories and describe the specific categories with particularity. Include in your response the names and, if known, the addresses and telephone numbers of the custodians of the documents, ESI, or tangible things, land, or other property that are not in your possession, custody, or control. Various documents and tangible things in Amazon's possession, custody, or control, are available for inspection at its counsel's offices. These include printouts of agreements, printouts of detail pages, and samples of products. Kangaroo is expected to have: a) Documents reflecting sales under each Kangaroo trademark asserted in the complaint, b) samples of products at issue, c) Names of and contact information for Kangaroo's so - called " authorized " sellers d) Documents sufficient to show any common ownership or control of Kangaroo and any entity that has sold products on Amazon. com (such as Yagoozon aka Pennies2Platinum) e) Documents from other litigation asserting Kangaroo trademarks, wrongdoing by Kangaroo, or both (e. g ., litigation with IF Merchandise) 0 Relevant ESI includes sales data for products listed under the ASINs that Kangaroo has asserted relate to infringement: B00017SZ6Y, B00018DY10, B0182WBENE, B01832551C, B00017SZ6Y, B00018DY10. 4. For each of your claims or defenses, state the facts relevant to it and the legal theories upon which it is based. a) Kangaroo's state law claims are not supported by fact or law. Without limitation, Amazon does not owe Kangaroo the legal duties that Kangaroo relies upon in the complaint. b) Kangaroo's state law claims also violate the safe harbor of Section 230 of the Communications Decency Act. c) Amazon is not responsible for alleged infringing sales made by third parties on Amazon. com. d) To the extent Kangaroo's state law claims merely restate Kangaroo's claims for NESS - STUTTE au AWN intellectual property under federal law, they are preempted. e) License: As Kangaroo's apparent authorized agent and sister entity, Pennies 2 Platinum (aka Yagoozon) licensed Amazon, inter alia, to use the copyrighted photograph and trademarks at issue, subject to conditions set forth in the Business Solutions Agreement Teen If an act is licensed, it does not infringe any asserted trademarks or copyrights. f) If and to the extent not licensed, any use by Amazon of the allegedly copyrighted photos falls within a safe harbor of the DMCA. 5. Provide a computation of each category of damages claimed by you, and a description of the other evidentiary material on which it is based, including materials bearing on the nature and extent of the injuries suffered. You may produce the documents or other evidentiary materials with your response instead of describing them. Amazon's First Amended Answer does not include a counterclaim. 0 6. Specifically identify and describe any insurance or other agreement under which an insurance business or other person or entity may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse a party for payments I made by the party to satisfy the judgment. You may produce a copy of the agreement with your response instead of describing Each vendor and third party seller of goods related to claims against Amazon in this case, including Pennies 2 Platinum, owes Amazon a duty to defend and indemnify one or more claims asserted by Kangaroo in this case. Third party sellers who have offered goods on Amazon. com that are related to Kangaroo's claims, these duties are set forth in the Business Solutions Agreement. For the vendors who sold Amazon goods that Kangaroo claims have infringed, these duties are set forth in Vendor Terms and Conditions agreements. DATED this 24th day of August, 2017. By: s / James E. Geringer JAMES E. GERINGER (admitted pro hac vice) james. geringer @ klarquist. com KLARQUIST SPARKMAN, LLP 121 SW Salmon Street, Suite 1600 Portland, Oregon 97204 Telephone: (503) 595 - 5300 Facsimile: (503) 595 - 5301 Counsel for Defendant AMAZON. COM, INC. 0 CERTIFICATE OF SERVICE - A ~ I hereby certify that on August 24, 2017, I served the foregoing document by electronic mail to counsel for Plaintiff: RAY K. HARRIS FENNEMORE CRAIG, P. C. 2394 East Camelback Road, Suite 600 Phoenix, AZ 85016 - 3429 Telephone: (602) 916 - 5000 Email: rharris @ fclaw. com 0 s / James E. Geringer 9 =, a Ha Ha CERTIFICATE OF SERVICE

NOTICE of Service of Supplemental Mandatory Initial Discovery Responses (MIDP) filed by Defendant Amazon.com Incorporated.

1 JAMES E. GERINGER (admitted pro hac vice) james.geringer@klarquist.com 2 KLARQUIST SPARKMAN, LLP 121 SW Salmon Street, Suite 1600 3 Portland, Oregon 97204 4 Telephone: (503) 595-5300 5 JOHN GOLDMARK (admitted pro hac vice) johngoldmark@dwt.com 6 MAX B. HENSLEY (admitted pro hac vice) 7 maxhensley@dwt.com DAVIS WRIGHT TREMAINE, LLP 8 1201 Third Avenue, Suite 2200 Seattle, WA 98101-3045 9 Telephone: (206) 622-3150 10 Fax: (206) 757-7700 11 Of Attorneys for Defendant AMAZON.COM, INC. 12 13 IN THE UNITED STATES DISTRICT COURT 14 FOR THE DISTRICT OF ARIZONA 15 16 Kangaroo Manufacturing, Inc., Case No.: CV-17-1806-PHX-SPL 17 Plaintiff, 18 AMAZON'S NOTICE OF SERVICE v. OF DISCOVERY 19 20 Amazon.com, Inc., 21 Defendant. 22 23 Amazon.com, Inc. ("Amazon") submits this Notice confirming that on April 30, 24 2018, Amazon served Plaintiff Kangaroo Manufacturing, Inc. ("Kangaroo") with a copy 25 of Amazon's Fourth Supplemental Initial Discovery Response. 26 27 1 DATED this 1st day of May, 2018. 2 By: s/James E. Geringer JAMES E. GERINGER (admitted pro hac vice) 3 james.geringer@klarquist.com 4 KLARQUIST SPARKMAN, LLP 121 SW Salmon Street, Suite 1600 5 Portland, Oregon 97204 6 Telephone: (503) 595-5300 7 JOHN GOLDMARK (admitted pro hac vice) johngoldmark@dwt.com 8 MAX B. HENSLEY (admitted pro hac vice) maxhensley@dwt.com 9 DAVIS WRIGHT TREMAINE, LLP 1201 Third Avenue, Suite 2200 10 Seattle, WA 98101-3045 11 Telephone: (206) 622-3150 Fax: (206) 757-7700 12 13 Of Attorneys for Defendant AMAZON.COM, INC. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2 1 CERTIFICATE OF SERVICE 2 I hereby certify that on May 1, 2018, I electronically transmitted the foregoing 3 document to the Clerk's Office using the CM/ECF System for filing and transmittal of a 4 Notice of Electronic Filing to the following CM/ECF registrants: 5 6 Timothy Grimm, Esq. Timothy.Grimm@carpenterhazlewood.com 7 Edith I. Rudder, Esq. Eadie.Rudder@carpenterhazlewood.com 8 CARPENTER, HAZLEWOOD, DELGADO & BOLEN, PLC 9 1400 East Southern Ave, Suite 400 Tempe, Arizona 85282 10 11 s/James E. Geringer 12 James E. Geringer 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 CERTIFICATE OF SERVICE

STIPULATION To Extend Time To Take Rule 30(B)(6) Deposition of Amazon.com, Inc. and To Extend Time Within Which Dispositive Motions May Be Filed (First Request) by Kangaroo Manufacturing Incorporated.

CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP 1 Attorneys at Law 1400 E. Southern Avenue, Suite 400 2 Tempe, Arizona 85282 t 480.427.2800 | f 480.427.2800 3 Mark K. Sahl #025729 Timothy R. Grimm #019110 Edith I. Rudder #020650 4 minuteentries@carpenterhazlewood.com KANGAROOM.0003 5 Attorneys for Plaintiff 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Kangaroo Manufacturing, Inc., a Florida Case 2:17-cv-01806-SPL 9 corporation, 10 Plaintiff, STIPULATION TO EXTEND 11 TIME TO TAKE RULE 30(B)(6) v. DEPOSITION OF AMAZON.COM, INC. 12 AND TO EXTEND TIME WITHIN WHICH 13 Amazon.Com, Inc., a Delaware corporation, DISPOSITIVE MOTIONS MAY BE FILED 14 Defendant. (First Request) 15 16 Plaintiff Kangaroo Manufacturing, Inc. ("Kangaroo") and defendant Amazon.com, 17 Inc. ("Amazon") jointly submit this stipulation requesting that the Court extend the time to 18 complete the Rule 30(b)(6) deposition of Amazon, and concurrently, extend the dispositive 19 20 motion deadline by about six weeks, to July 13, 2018. This is the first request for a 21 scheduling modification in this matter, and the parties do not request any modification of 22 any other deadline. In support of this request, the parties state as follows: 23 1. The Rule 16 Case Management Order (Doc. #29) ("Scheduling Order") set 24 April 30, 2018, as the discovery deadline and May 30, 2018, as the dispositive motion 25 26 deadline. 1 4831-6799-8565v.2 0051461-001587 2. The parties worked diligently and cooperatively to complete discovery. All 1 2 document discovery is complete, and the parties have completed the depositions of all 3 individual fact and expert witnesses, as well as the Rule 30(b)(6) deposition of Kangaroo. 4 3. The parties have made diligent efforts since the beginning of April to 5 complete the Rule 30(b)(6) deposition of Amazon (the "Deposition"). Kangaroo started the 6 7 Deposition on April 23, 2018 and it was continued by agreement of the parties to April 30, 8 2018, during which Amazon covered eight of the requested topics. However, all of the 9 topics designated by Plaintiff, which require multiple Amazon witnesses, have not yet been 10 addressed, and Amazon is providing another witness to testify on the balance of the agreed 11 12 topics. Despite counsels' best efforts, due to depositions and hearings in other cases as well 13 as with personal obligations of counsel and the work schedule of Amazon's witness, the 14 next available date to which the Deposition could be continued is May 24, 2018. 15 4. Because the parties need to complete the continued Deposition on May 24, 16 17 2018—six days before the current dispositive motion deadline—they concurrently need to 18 extend the time to file dispositive motions so that they can complete the Deposition and 19 obtain the transcript before preparing dispositive motion papers. 20 Therefore, the parties hereby stipulate, and respectfully request that the Court grant 21 22 their request that the Deposition be continued to May 24, 2018. 23 Concurrently, the parties also stipulate and respectfully request that the Dispositive 24 Motion Deadline set forth in Section IV of the Scheduling Order be continued for about six 25 (6) weeks from May 30, 2018 to July 13, 2018. In compliance with the Scheduling Order, 26 2 4831-6799-8565v.2 0051461-001587 the parties' request does not extend the dispositive motion deadline "beyond the two-year 1 2 anniversary of the date of commencement of the action," and instead extends the deadline to 3 just over one year from when this action was filed on June 16, 2017. 4 The parties attach a form of Order for the convenience of the Court. 5 DATED: May 10, 2018. 6 7 CARPENTER HAZLEWOOD DAVIS WRIGHT TREMAINE LLP DELGADO & BOLEN, LLP 8 By: /s/ Edith I. Rudder By: /s/ John A. Goldmark (with permission) 9 Edith I. Rudder John A. Goldmark 1400 E. Southern Ave., Ste. 400 1201 Third Ave., Ste. 2200 10 Tempe, AZ 85282 Seattle, WA 89101-3045 11 Attorneys for the Association Attorneys for Defendant 12 13 CERTIFICATE OF SERVICE 14 I hereby certify that on May 10, 2018, a true and correct copy of the foregoing 15 16 document was electronically filed with the Clerk of the United States District Court of the 17 District of Arizona by using the CM/ECF system, and that service will be accomplished by 18 the CM/ECF system to all counsel of record. 19 I further certify that I have mailed a true and correct copy of the foregoing document 20 21 by United States Mail, first-class postage prepaid, sealed, as well as by email, addressed to: 22 James Edward Geringer (james.geringer@klarquist.com) Klarquist, Sparkman, L.L.P. 23 1 World Trade Ctr. 24 121 SW Salmon St., Ste. 1600 Portland, Oregon 97204 25 Attorneys for Defendant Amazon.com 26 3 4831-6799-8565v.2 0051461-001587 John A. Goldmark (johngoldmark@dwt.com) 1 Max B. Hensley (maxhensley@dwt.com) 2 Davis Wright Tremaine 1201 Third Ave., Ste. 2200 3 Seattle, WA 89101-3045 4 Attorneys for Defendant Amazon.com 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 4 4831-6799-8565v.2 0051461-001587

Text of Proposed Order Order Granting Stipulation to Extend Time to Take Rule 30(B)(6) Deposition of Amazon.com, Inc. and to Extend Time Within Which Dispositive Motions May Be Filed

1 2 3 IN THE UNITED STATES DISTRICT COURT 4 FOR THE DISTRICT OF ARIZONA 5 Kangaroo Manufacturing, Inc., a Florida Case 2:17-cv-01806-SPL 6 corporation, 7 ORDER GRANTING Plaintiff, STIPULATION TO EXTEND 8 TIME TO TAKE RULE 30(B)(6) v. DEPOSITION OF AMAZON.COM, INC. 9 AND TO EXTEND TIME WITHIN WHICH 10 Amazon.Com, Inc., a Delaware corporation, DISPOSITIVE MOTIONS MAY BE FILED 11 Defendant. 12 Pursuant to the Stipulation between the parties to extend the time to take the Rule 13 30(b)(6) deposition of Amazon.com, Inc. and to extend the time within which dispositive 14 15 motions may be filed, and for good cause shown, 16 IT IS HEREBY ORDERED extending the deadline within which to complete the Rule 17 30(b)(6) deposition of Amazon.com, Inc. through and including May 24, 2018. 18 IT IS FURTHER ORDERED extending the dispositive motion deadline from May 30, 19 20 2018 through and including July 13, 2018. 21 22 SIGNED AND DATED ABOVE. 23 24 25 26 1 4815-9139-9013v.1 0051461-001587

RESPONSE in Opposition re: {{63}} MOTION to Quash Subpoena filed by Amazon.com Incorporated.

1 1 DAVIS WRIGHT TREMAINE LLP John A. Goldmark (admitted pro hac vice) 2 Max B. Hensley (admitted pro hac vice) 1201 Third Avenue, Suite 2200 3 Seattle, WA 98101-3045 Tel: (206) 622-3150; Fax: (206) 757-7700 4 Email: johngoldmark@dwt.com maxhensley@dwt.com 5 6 Attorneys for Defendant 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE DISTRICT OF ARIZONA 10 Kangaroo Manufacturing, Inc., a Florida 11 corporation, No. 2:17-cv-01806-SPL 12 Plaintiff, DEFENDANT AMAZON.COM, 13 v. INC.'S OPPOSITION TO 14 MOTION TO QUASH Amazon.com, Inc., a Delaware corporation, SUBPOENA 15 Defendant. 16 The Court should deny Kangaroo's Motion to Quash (MTQ) the subpoena issued to 17 Great American Duck Races, Inc. (GAME) for two reasons: 18 (1) Kangaroo's MTQ violates this Court's Case Management Order 19 (CMO), the local rules, and the civil rules because Kangaroo failed to meet 20 and confer with Amazon, and failed to seek and obtain leave of Court before 21 filing this motion. These defects alone require denial of the MTQ. 22 (2) Kangaroo's MTQ is meritless because Amazon seeks relevant 23 information, central to Kangaroo's reputation on which it seeks damages, 24 and Kangaroo has failed to explain how disclosure would harm it, other than 25 by providing Amazon with information that undercuts Kangaroo's inflated 26 claims for reputation damages. 27 28 Davis Wright Tremaine LLP L AW O FFICE S 777 – 108TH Avenue NE  Suite 2300 OPPOSITION TO MOTION TO QUASH SUBPOENA - 1 Bellevue, Washington 98004-5149 (425) 646-6100  Fax: (425) 646-6199 4825-5577-1749v.1 0051461-001587 1 1 A. Kangaroo's Motion Violates this Court's Order and the Civil Rules. 2 The MTQ is procedurally improper, and the Court should deny it on that basis 3 alone. First, the MTQ is procedurally improper because Kangaroo did not seek to resolve 4 this dispute by meeting and conferring with Amazon, as required by this Court's CMO, 5 the local rules, and the civil rules. The CMO states: "Parties shall not present any 6 discovery dispute without first seeking to resolve the matter through personal consultation 7 and sincere effort as required by LRCiv 7.2(j)." Dkt. #29, at 4 (emphasis original). The 8 local rule cited by the Court states: "No discovery motion will be considered or decided 9 unless a statement of moving counsel is attached thereto certifying that after personal 10 consultation and sincere efforts to do so, counsel have been unable to satisfactorily resolve 11 the matter. Any discovery motion brought before the Court without prior personal 12 consultation with the other party and a sincere effort to resolve the matter, may result in 13 sanctions." LRCiv 7.2(j). Further, Kangaroo relies on Rule 26(c) as the basis for the 14 relief it seeks (MTQ at 3, 5), but that rule requires that any "motion must include a 15 certification that the movant has in good faith conferred or attempted to confer with other 16 affected parties in an effort to resolve the dispute without court action." Kangaroo's 17 motion included no such certification, and Kangaroo never sought to confer with Amazon 18 on this issue. As a result, the local and civil rules preclude consideration of this motion. 19 Even if Kangaroo had sought to confer on this issue without reaching a resolution, 20 the MTQ would still be premature and impermissible under the CMO. The CMO states: 21 "In the event the parties cannot reach a resolution, they may jointly request assistance by 22 contacting the Court to request a hearing on the dispute; the parties shall not file written 23 discovery motions without leave of Court." Dkt. #29, at 4 (emphasis added). Kangaroo 24 filed its MTQ without conferring with Amazon and without seeking leave of Court, 25 rendering the motion procedurally improper and invalid. The Court should deny it. 26 27 28 Davis Wright Tremaine LLP L AW O FFICE S 777 – 108TH Avenue NE  Suite 2300 OPPOSITION TO MOTION TO QUASH SUBPOENA - 2 Bellevue, Washington 98004-5149 (425) 646-6100  Fax: (425) 646-6199 4825-5577-1749v.1 0051461-001587 1 1 B. Even if Kangaroo's Motion were Procedurally Proper, the Court Should Deny It On the Merits. 2 The permissible scope of information sought in a subpoena under Rule 45 is as 3 broad as the scope of permissible discovery under Rule 26. See Ferreira v. Penzone, No. 4 CV-15-01845-PHX-JAT, 2018 WL 1706212, at *1–2 (D. Ariz. Apr. 9, 2018) (citation 5 omitted) ("Rule 45 subpoenas are subject to the more general provisions of Rule 26, which 6 outline the permissible scope of discovery."). "If no claim of privilege applies, a non- 7 party can be compelled to produce evidence regarding any matter 'relevant to the subject 8 matter involved in the pending action' or 'reasonably calculated to lead to the discovery of 9 admissible evidence.'" Shoen v. Shoen, 5 F.3d 1289, 1292 (9th Cir. 1993) (quoting 10 Fed.R.Civ.P. 26(b)(1)). "[W]ide access to relevant facts serves the integrity and fairness of 11 the judicial process by promoting the search for the truth." Tucson Embedded Sys. Inc. v. 12 Turbine Powered Tech. LLC, No. CV-14-01868-TUC-BGM, 2015 WL 13574283, at *2 13 (D. Ariz. Nov. 24, 2015) (quoting Shoen, 5 F.3d at 1292). As such, "[m]utual knowledge 14 of all the relevant facts gathered by both parties is essential to proper litigation." Id. 15 (quoting Hickman v. Taylor, 329 U.S. 495, 507, 67 S.Ct. 385 (1947)). 16 "The party seeking to quash a subpoena bears the burden of persuasion." Chartis 17 Specialty Ins. Co. v. Scott Homes Multifamily Inc., No. CV-13-00601-PHX-ROS, 2015 18 WL 13566919, at *1 (D. Ariz. Feb. 23, 2015). "This 'burden is a heavy one.'" 19 Cheatwood v. Christian Bros. Servs., No. 2:16-CV-2946-HRH, 2018 WL 684736, at *3 20 (D. Ariz. Feb. 2, 2018) (quoting In re Yassai, 225 B.R. 478, 484 (Bankr. C.D. Cal. 1998). 21 Kangaroo offers no legitimate reason to quash the subpoena. 22 1. The Subpoenaed Information is Relevant to Amazon's Defense. 23 First, Kangaroo argues the information Amazon seeks is irrelevant to this litigation 24 and therefore sought to embarrass Mr. Ligeri, but that is inaccurate. Amazon's subpoena 25 to GAME seeks deposition transcripts and other documents from the GAME litigation 26 relating to the reputation, prior litigation history, previous fraudulent acts, or use of 27 Amazon.com by Kangaroo, Mr. Ligeri, and related entities. 28 Davis Wright Tremaine LLP L AW O FFICE S 777 – 108TH Avenue NE  Suite 2300 OPPOSITION TO MOTION TO QUASH SUBPOENA - 3 Bellevue, Washington 98004-5149 (425) 646-6100  Fax: (425) 646-6199 4825-5577-1749v.1 0051461-001587 1 1 Kangaroo's objection to the relevance of this information rings hollow because 2 Kangaroo has made its reputation central to its claims. Kangaroo's complaint alleges 3 Amazon infringed its trademark under Section 43(a) of the Lanham Act—a claim that 4 inherently puts the strength and reputation of Kangaroo's brand at issue. Complaint (Dkt. 5 #1) ¶¶ 38-53. And Kangaroo directly alleged Amazon "damaged the goodwill and 6 reputation of Kangaroo" and its "reputation as a source of high quality goods and 7 services." Id. ¶¶ 48, 50. In addition, Mr. Ligeri testified in his deposition that Kangaroo's 8 "biggest" damages claims are for "brand harm and the seller relations." Ligeri Dep. Tr. at 9 245:11-14; see also id. at 12:20-21 ("I have a great brand"); id. at 104:12-19 ("We have a 10 great reputation. Our customers love us and. . . you've hurt our brand and you've hurt our 11 relationship with our customers."). Kangaroo cannot assert damage to its reputation as its 12 "biggest" claim and yet argue the quality of its reputation is irrelevant to this dispute. 13 Further, the reputation of Mr. Ligeri and related entities is relevant to Kangaroo's 14 reputation. Kangaroo publically and expressly stakes its reputation on that of Ligeri and 15 Yagoozon. See Kangaroo Manufacturing, About Us, available at 16 https://www.kangaroomfg.com/about-us ("Kangaroo Manufacturing was launched in 2014 17 by Justin Ligeri, the successful entrepreneur behind Yagoozon, Inc."). Mr. Ligeri also 18 hosts educational seminars for Amazon sellers, at which Kangaroo attorneys and managers 19 serve as speakers. See Ranked1Pro, 3-Day, available at http://ranked1pro.com/3day/. 20 And as GAME alleged in its recent motion to amend its complaint, Mr. Ligeri treats 21 Kangaroo and related entities (including Yagoozon and Pennies2Platinum) as an "alter 22 ego," including by apparently evading liability and using company money for personal 23 purposes. See Mot. to Amend, GAME v. Kangaroo, Case No. CV-17-212-PHX-ROS, 24 Dkt. #75, at 4 ("[D]uring Ligeri's depositions, it became clear that Ligeri is the alter ego 25 of [Kangaroo and Yagoozon]."); id. Dkt. #75-1, at 46 (excerpt from deposition testimony 26 of former Kangaroo employee stating Mr. Ligeri "would borrow huge amounts of money 27 to buy products. . . [a]nd he would get into. . . screaming conversations with debtors 28 telling them he doesn't have any money, when the night before he just went out and Davis Wright Tremaine LLP L AW O FFICE S 777 – 108TH Avenue NE  Suite 2300 OPPOSITION TO MOTION TO QUASH SUBPOENA - 4 Bellevue, Washington 98004-5149 (425) 646-6100  Fax: (425) 646-6199 4825-5577-1749v.1 0051461-001587 1 1 bought a $300,000 car").1 Kangaroo's complaint also suggests Kangaroo suffered harm 2 from damage Amazon allegedly caused to Yagoozon's reputation as a retailer on Amazon, 3 further putting the reputation of related entities at issue. See Complaint (Dkt. #1) ¶¶ 29-32 4 (alleging "[b]ad reviews" for counterfeit products "damage[d] the reputation of legitimate 5 retailers"). Thus, Kangaroo's reputation is inextricable with that of Mr. Ligeri and his 6 various entities, which is why the subpoena seeks information related to each. 7 More specifically, the facts and allegations in the GAME suit (and thus the 8 discovery in that suit) undermine Kangaroo's claims regarding the strength of its brand 9 and reputation, which is why Kangaroo seeks to arbitrarily deny Amazon access to this 10 information. GAME sued Kangaroo alleging Kangaroo copied its inflatable duck design. 11 In GAME's recent motion to amend its complaint, GAME cites deposition testimony of 12 Kangaroo's former Vice President of Design, which revealed that Kangaroo had "no 13 development of ideas" but would instead order popular products on Amazon and then 14 "reproduce that product" and "sell it under Kangaroo." GAME v. Kangaroo, Case No. 15 CV-17-212-PHX-ROS, Dkt. #75-1, at 43-45 see also id. at 44:22-23 ("[W]e would take 16 them out of the package and basically reverse-engineer it."). Thus, evidence in the GAME 17 case suggests Kangaroo's business model is premised on large-scale, deliberate 18 infringement of the intellectual property of others.2 This evidence supports that Kangaroo 19 1 Most of the details potentially relevant to reputation, however, are redacted from 20 GAME's motion to amend, including all of Mr. Ligeri's deposition. 2 21 This evidence of widespread and intentional infringement is consistent with the past and present litigation history of Kangaroo, Mr. Ligeri, and his other entities. A small sample 22 includes: Rubie's Costume Co., Inc. v. Kangaroo Mfg., Inc., Case No. 16-6517 (E.D.N.Y., 23 Nov. 22, 2016), Dkt. #1, at 4 (alleging Ligeri and his entities purchased products from plaintiff to sell on Amazon but then failed to pay for $4.3 million in outstanding invoices 24 and "wrongful[ly] use[d] [] Rubies registered trademarks to sell and offer for sale Kangaroo-branded products"); e4Hats.com Inc. v. Kangaroo Mfg., Inc., Case No. 17-1387 25 (C.D. Cal., Aug. 11, 2017), Dkt. #1, at 2 (alleging Kangaroo's yacht cap—which 26 Kangaroo claims Amazon infringed—was actually an infringement of plaintiff's design and that Kangaroo illegally requested that Amazon take down plaintiff's listing of the 27 authentic product); Lions Gate Entm't, Inc. v. Yagoozon, Inc., Case No. 12-10653 (C.D. 28 Cal., Dec. 12, 2012), Dkt. #1, at 6-7 (alleging plaintiff denied Yagoozon's request to sell authorized Hunger Games merchandise and Yagoozon began selling counterfeit versions); Davis Wright Tremaine LLP L AW O FFICE S 777 – 108TH Avenue NE  Suite 2300 OPPOSITION TO MOTION TO QUASH SUBPOENA - 5 Bellevue, Washington 98004-5149 (425) 646-6100  Fax: (425) 646-6199 4825-5577-1749v.1 0051461-001587 1 1 never had a reputation for providing quality or unique products, and Amazon is entitled to 2 such evidence to combat Kangaroo's claim that Amazon's alleged sale of counterfeit 3 versions of four Kangaroo products somehow caused extensive reputation damages. 4 GAME's motion to amend also suggests Mr. Ligeri's deposition in that case revealed 5 details undermining his and his entities' reputation, but the specifics are redacted. See id. 6 Dkt. #75, at 5-6. And the motion contains only small excerpts from the former Vice 7 President of Design's testimony. See id. Dkt. #75-1, at 42-46. While Kangaroo is 8 involved in other litigation similar to GAME, the publically available portions of GAME's 9 motion to amend suggest the GAME case includes uniquely direct evidence of Kangaroo's 10 reputation for intentional infringement. Amazon is entitled to "wide access to relevant 11 facts," and the relevance of this information cannot be denied. Tucson Embedded Sys., 12 2015 WL 13574283, at *2. 13 Kangaroo also argues that Mr. Ligeri's fraudulent acts cannot be relevant beyond 14 the use of convictions to impeach under FRE 609. But as explained above, Mr. Ligeri's 15 reputation for fraudulent behavior is relevant to Kangaroo's reputation, regardless of any 16 convictions. And Kangaroo ignores information "need not be admissible in evidence to be 17 discoverable." Rule 26(b)(1). "Where relevance is in doubt [on a motion to quash] the 18 court should be permissive." Erickson v. Microaire Surgical Instruments LLC, No. C08- 19 5745BHS, 2010 WL 1881946, at *1 (W.D. Wash. May 6, 2010) (citing Gonzales v. 20 Google, Inc., 234 F.R.D. 674, 681 (N.D.Cal.2006)). 21 22 23 24 Silvertop Associates, Inc. v. Kangaroo Mfg., Inc., Case No. 17-7919 (D. N.J.), Dkt. #1, 25 #10-10, at 2 (plaintiff sold product to Yagoozon but then terminated sales based on "a 26 thorough credit review in the costume industry" and Kangaroo then began copying product; plaintiff filed a police report regarding threatening messages Mr. Ligeri sent after 27 termination of relationship, in which he said "I am going to own you. You dumb ass. I'm 28 Italian. . . and unlike Some Jews I don't [expletive] money. . . I'll spend a million dollars just to ruin your life."). Davis Wright Tremaine LLP L AW O FFICE S 777 – 108TH Avenue NE  Suite 2300 OPPOSITION TO MOTION TO QUASH SUBPOENA - 6 Bellevue, Washington 98004-5149 (425) 646-6100  Fax: (425) 646-6199 4825-5577-1749v.1 0051461-001587 1 1 2. Kangaroo's Designation of Material as "Confidential" Does Not Bar its Disclosure to Amazon. 2 Kangaroo's second basis for objecting to the subpoena is that some of the 3 information sought has been designated confidential under a protective order entered in 4 the GAME litigation. Kangaroo's concerns over lost confidentiality are a red herring. 5 Kangaroo fails to mention that the parties filed a stipulated protective order in this case. 6 See Dkt. #42. While the Court has not signed the order, the stipulation is an agreement 7 between the parties, and the parties have provided and designated information as 8 confidential pursuant to this stipulation. Thus, information Amazon obtains from GAME 9 will be no less confidential than information Amazon has otherwise obtained in this 10 litigation. See, e.g., In re Ex Parte Application of Kleimar N.V., 220 F. Supp. 3d 517, 522 11 (S.D.N.Y. 2016) ("As. . . confidentiality issues can be addressed by a protective order, the 12 Court is persuaded that such concerns are not severe enough to warrant quashing the 13 subpoena."). Kangaroo offers no explanation for why these protections would be 14 insufficient, but instead suggests that disclosure to Amazon would mean disclosure to the 15 public, which is not the case. 16 In fact, the parties anticipated they would obtain information from third parties that 17 Kangaroo or Amazon may wish to protect as confidential. The stipulation states "[e]ach 18 party expects to subpoena third parties for discovery of commercially sensitive 19 information in this case." Dkt. #42-1, at 2. And the stipulation lays out a process for 20 designating information received from a third party as "Confidential" or "Confidential 21 Attorneys Eyes Only." Id. at 3 ("If a Party determines in good faith that specific 22 information produced by the Party or a third party in this action is 'Confidential 23 Information,' such Confidential Information shall be so designated. . . .") (emphasis 24 added). The parties have therefore already agreed to a mechanism to protect confidential 25 information obtained from third parties, and Kangaroo's attempt to hide this information 26 from Amazon on the basis of alleged confidentiality—without conferring with Amazon or 27 referencing the parties' stipulation—is baseless. 28 Davis Wright Tremaine LLP L AW O FFICE S 777 – 108TH Avenue NE  Suite 2300 OPPOSITION TO MOTION TO QUASH SUBPOENA - 7 Bellevue, Washington 98004-5149 (425) 646-6100  Fax: (425) 646-6199 4825-5577-1749v.1 0051461-001587 1 1 Kangaroo presumes that the mere existence of a protective order in the GAME 2 litigation requires quashing a subpoena seeking information Kangaroo has designated as 3 confidential in that action. But that is incorrect. The GAME protective order states that a 4 party receiving a subpoena for information designated under the order must provide notice 5 "to afford the Designating Party in this case an opportunity to protect its confidentiality 6 interests in the court from which the subpoena or order issued. The designating Party shall 7 bear the burdens and the expenses of seeking protection in that court of its Designated 8 Material." MTQ (Dkt. #63), Ex. 2, at 9. Kangaroo thus has the opportunity to show why 9 the information should not be produced, but must still meet its burden to show a basis to 10 quash the subpoena beyond its circular reliance on the GAME protective order. 11 Kangaroo has fallen far short of meeting this "heavy" burden. Cheatwood, No. 12 2:16-CV-2946-HRH, 2018 WL 684736, at *3. In fact, Kangaroo fails to articulate how 13 disclosure to Amazon would negatively impact Kangaroo's business or Mr. Ligeri in any 14 way, other than by providing Amazon with highly relevant information to defend 15 Kangaroo's claims. See id. at *7 (the "party resisting discovery [on confidentiality 16 grounds] must make a strong showing"). This Court recently denied an attempt to prevent 17 disclosure of subpoenaed information where the objecting party failed to make a strong 18 showing but simply "claim[ed] that the documents at issue are confidential and generally 19 claim[ed] that it will be harmed if these documents are disclosed." Id. Kangaroo has 20 similarly failed to meet its burden here. The MTQ's general claims of confidentiality and 21 harm are particularly deficient where Amazon and Kangaroo have already agreed to keep 22 sensitive information obtained from third parties confidential.3 23 Kangaroo's confidentiality argument boils down to its aim to keep this information 24 from Amazon, but Amazon would have the right to obtain this information in separate 25 3 26 Oddly, Kangaroo also emphasizes that Rule 26 allows discovery of only "non- privileged" matters. See MTQ at 3. Amazon subpoenaed GAME, and Kangaroo provides 27 no explanation for how GAME could be in possession of information that is protected by a 28 privilege benefitting Kangaroo. Clearly, if the information is privileged, Kangaroo would never have given it to GAME, and doing so would waive the privilege. Davis Wright Tremaine LLP L AW O FFICE S 777 – 108TH Avenue NE  Suite 2300 OPPOSITION TO MOTION TO QUASH SUBPOENA - 8 Bellevue, Washington 98004-5149 (425) 646-6100  Fax: (425) 646-6199 4825-5577-1749v.1 0051461-001587 1 1 discovery in this action, only doing so would be inefficient. It is less burdensome on all 2 parties involved if GAME (which has not objected) simply complies with the subpoena. 3 C. The Subpoena is Timely. 4 Finally, Kangaroo argues the subpoena amounts to untimely discovery, simply 5 because GAME will not be able to produce records until after the April 30 cutoff. But 6 Amazon issued this subpoena on April 23, and this Court has recognized that a subpoena 7 is timely if issued before the discovery cutoff. Ferreira v. Penzone, No. CV-15-01845- 8 PHX-JAT, 2018 WL 1706212, at *1–2 (D. Ariz. Apr. 9, 2018) (treating issuance of 9 subpoena as relevant date for determining timeliness of subpoena issued after discovery 10 cutoff). Additionally, Amazon had no reason to know of the unique relevance of 11 testimony and evidence in the GAME case until GAME filed its motion to amend, which 12 addressed newly uncovered evidence of Kangaroo's reputation for intentional 13 infringement, as described above. GAME filed that motion on April 6, 2018 (Case No. 14 CV-17-212-PHX-ROS, Dkt. #75), and Amazon issued the subpoena to GAME on April 15 23 (a week after providing Kangaroo with notice of its intent to issue the subpoena). 16 Amazon therefore acted promptly and diligently in seeking this information. 17 CONCLUSION 18 For the foregoing reasons, Amazon respectfully requests that the Court deny 19 Kangaroo's Motion to Quash. 20 DATED this 11th day of May, 2018. 21 By s/ John Goldmark 22 John A. Goldmark (admitted pro hac vice) Max B. Hensley (admitted pro hac vice) 23 DAVIS WRIGHT TREMAINE LLP 1201 Third Avenue, Suite 2200 24 Seattle, WA 98101-3045 Tel: (206) 622-3150; Fax: (206) 757-7700 25 Email: johngoldmark@dwt.com maxhensley@dwt.com 26 27 28 Davis Wright Tremaine LLP L AW O FFICE S 777 – 108TH Avenue NE  Suite 2300 OPPOSITION TO MOTION TO QUASH SUBPOENA - 9 Bellevue, Washington 98004-5149 (425) 646-6100  Fax: (425) 646-6199 4825-5577-1749v.1 0051461-001587 1 1 James E. Geringer (admitted pro hac vice) Klarquist Sparkman, LLP 2 121 SW Salmon Street, Suite 1600 3 Portland, Oregon 97204 Tel: (503) 595-5300; Fax: (503) 595-5301 4 Email: james.geringer@klarquist.com 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Davis Wright Tremaine LLP L AW O FFICE S 777 – 108TH Avenue NE  Suite 2300 OPPOSITION TO MOTION TO QUASH SUBPOENA - 10 Bellevue, Washington 98004-5149 (425) 646-6100  Fax: (425) 646-6199 4825-5577-1749v.1 0051461-001587 1 1 CERTIFICATE OF SERVICE 2 I hereby certify that on May 11, 2018, a true and correct copy of the foregoing 3 document was electronically filed with the Clerk of the United States District Court of the 4 5 District of Arizona by using the CM/ECF system, and that service will be accomplished 6 by the CM/ECF system to all counsel of record. 7 I further certify that I have mailed a true and correct copy of the forgoing 8 document by United States Mail as well as by email, address to: 9 10 Timothy Grimm, Esq. Eadie Rudder, Esq. 11 Carpenter, Hazelwood, Delgado & Bolen, PLC 1400 E. Southern Ave., Suite 400 12 Tempe, AZ 85282 13 Email: timothy.grimm@carpenterhazlewood.com Email: eadie.rudder@carpenterhazlewood.com 14 15 Attorneys for Plaintiff 16 DATED this 11th day of May, 2018. 17 18 s/ John Goldmark John Goldmark 19 20 21 22 23 24 25 26 27 28 Davis Wright Tremaine LLP L AW O FFICE S 777 – 108TH Avenue NE  Suite 2300 OPPOSITION TO MOTION TO QUASH SUBPOENA - 11 Bellevue, Washington 98004-5149 (425) 646-6100  Fax: (425) 646-6199 4825-5577-1749v.1 0051461-001587

ORDER granting the parties' {{66}} Stipulation to Extend. Fact Discovery due by 5/24/2018. Dispositive motions due by 7/13/2018. Signed by Judge Steven P Logan on 5/15/18.

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Kangaroo Manufacturing Incorporated,) No. CV-17-01806-PHX-SPL 9)) Plaintiff,) ORDER 10) vs. 11)) Amazon.com Incorporated,) 12) 13 Defendant.)) 14) 15 Before the Court is the parties' first Stipulation to Extend (Doc. 66), in which the 16 parties request an extension of case deadlines. Finding good cause appearing, and that the 17 requested extension would not otherwise delay this action, the stipulation will be granted. 18 Accordingly, 19 IT IS ORDERED that the Stipulation to Extend (Doc. 66) is granted. 20 IT IS FURTHER ORDERED that the deadlines are modified as follows: 21 1. Fact Discovery shall be completed by May 24, 2018; and 22 2. Dispositive Motions shall be due by July 13, 2018. 23 Dated this 15th day of May, 2018. 24 25 Honorable Steven P. Logan 26 United States District Judge 27 28

NOTICE of Deposition of Amended Notice of 30(b)(6) Deposition of Amazon.com, Inc., filed by Kangaroo Manufacturing Incorporated.

1 CARPENTER, HAZLEWOOD, DELGAD 2 O & BOLEN LLP Attorneys at Law 3 1400 E. Southern Ave., Suite 400 Tempe, Arizona 85282-5691 4 (480) 427-2800, Facsimile (480) 427-2801 minuteentries@carpenterhazlewood.com 5 Mark K. Sahl 025729 Timothy R. Grimm 019110 6 Edith I. Rudder 020650 KANGAROOM.0003 7 Attorneys for Plaintiff 8 IN THE UNITED STATES DISTRICT COURT 9 10 FOR THE DISTRICT OF ARIZONA 11 Kangaroo Manufacturing, Inc., a Florida Case 2:17-cv-01806-SPL 12 corporation, 13 Plaintiff, AMENDED 14 NOTICE OF 30(b)(6) DEPOSITION 15 v. OF AMAZON.COM, INC. 16 Amazon.com, Inc., a Delaware corporation, 17 Defendant. 18 19 YOU ARE HEREBY NOTIFIED that, pursuant to Federal Rule of Civil 20 Procedure 26 and 30, the deposition of the Rule 30(b)(6) witness or witnesses identified 21 22 below on the topics listed in Exhibit A will be taken upon examination at the time and 23 place stated below before an officer authorized by law to administer oaths. Pursuant to 24 Rule 30(b)(6), you are requested to designate one or more officers, directors, or 25 26 managing agents, or other persons who consent to testify on your behalf with respect to 27 each of the topics identified on the attached list of deposition topics. 28 1 1 PERSON TO BE EXAMINED: Representative(s) of Amazon.com, Inc. 2 DATE AND TIME OF DEPOSITION: May 24, 2018, at 9:00 a.m. 3 PLACE OF DEPOSITION: Davis Wright Tremaine LLP 4 1201 3rd Ave., Suite 2200 5 Seattle, Washington 98101 6 Dated this 18th day of May, 2018. 7 CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP 8 9 10 By: 11 Timothy R. Grimm Edith I. Rudder 12 1400 East Southern Avenue, Suite 400 Tempe, Arizona 85282 13 Attorneys for Plaintiff 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 1 CERTIFICATE OF SERVICE 2 I hereby certify that on May 18, 2018, a true and correct copy of the foregoing 3 document was electronically filed with the Clerk of the United States District Court of the 4 5 District of Arizona by using the CM/ECF system, and that service will be accomplished 6 by the CM/ECF system to all counsel of record. 7 I further certify that I have mailed a true and correct copy of the foregoing 8 9 document by United States Mail, email and by first-class postage prepaid, sealed, and 10 addressed to: 11 James Edward Geringer 12 Klarquist, Sparkman, L.L.P. 1 World Trade Ctr. 13 121 SW Salmon St., Ste. 1600 14 Portland, Oregon 97204 James.Geringer@klarquist.com 15 Attorneys for Defendant Amazon.com 16 John Goldmark 17 Max B. Hensley 18 DAVIS WRIGHT TREMAINE, LLP 1201 Third Avenue, Suite 2200 19 Seattle, WA 98101-3045 20 JohnGoldmark@dwt.com MaxHensley@dwt.com 21 Attorneys for Defendant Amazon.com 22 Glennie Reporting Services 23 1555 East Orangewood Ave. Phoenix, AZ 85020-5130 24 25 26 27 Vicki Goslin 28 3 1 Exhibit A – Deposition Topics 2 1. Product Sales and fees for the Accused Products on Amazon including 3 Product Detail Page; Fulfillment by Amazon; Amazon commissions; and Amazon Storage/Fulfillment Fees. 4 5 2. Amazon regulation of sales including Authorized Sale – Buy Box; Authorized Sales – Source Rating; and Counterfeit Sales. 6 7 3. Amazon policies and procedures with respect to take-down notices and manufacturer reporting of counterfeit goods. 8 9 4. Communications within Amazon and by and between Amazon and Kangaroo concerning Kangaroo's take-down notices and reports of counterfeit product 10 listings for the Accused Product. 11 5. Amazon's policies and procedures with respect to Trademark Infringement 12 and False Designation of Origin. 13 6. Amazon's use of counterfeit Kangaroo Trademarks. 14 7. Copyright Infringement by Amazon of Kangaroo's copyrights. 15 16 8. Administration of Kangaroo UPC by Amazon. 17 9. Amazon's policies, procedures, and actual control of sales prices of the 18 Accused Products. 19 10. Amazon's processes to determine which seller is assigned the Buy Box. 20 11. Unfair Competition regarding fees earned by Amazon related to the sales 21 by unauthorized competitors and counterfeiters. 22 12. Tortious Interference with Prospective Contract by Amazon. 23 13. Amazon's policies, procedures, and process for obtaining products sold 24 directly by Amazon as a retailer. 25 14. Amazon's identification of a vendor to source the Accused Products. 26 27 15. Amazon's purchase of the Accused Products. 28 4 1 16. Amazon's process to obtain licenses to use the intellectual property for Accused Products sold directly by Amazon. 2 3 17. How reported sales numbers are calculated and relation thereto of the actual costs. 4 5 18. Amazon's policies and procedures concerning third party resellers and guidelines and restrictions, if any, on reselling products as new or used. 6 7 19. Any licenses or intellectual property usage rights Amazon asserts are conferred on the basis of the Business Solutions Agreement (BSA). 8 9 20. Amazon's retention of documents and things related to claims made in the Complaint, efforts to retrieve and produce documents and information in this case, and 10 production of such documents and information. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

REPLY to Response to Motion re: {{63}} MOTION to Quash Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action Issued by Defendant Amazon.com, Inc. to Great American Duck Races, Inc. filed by Kangaroo Manufacturing Incorporated.

8 CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Attorneys at Law 1400 E. Southern Ave ., Suite 400 Tempe, Arizona 85282 - 5691 (480) 427 - 2800, Facsimile (480) 427 - 2801 minuteentries @ carpenterhazlewood. com Mark K. Sahl 025729 Timothy R. Grimm 019110 Edith I. Rudder 020650 KANGAROOM. 0003 Attorneys for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Kangaroo Manufacturing, Inc ., a Florida corporation, Case 2: 17 - cv - 01806 - SPL Plaintiff, PLAINTIFF'S REPLY IN SUPPORT OF ITS OBJECTION AND MOTION TO QUASH SUBPOENA TO PRODUCE DOCUMENTS, INFORMATION, OR OBJECTS OR TO PERMIT INSPECTION OF PREMISES IN A CIVIL ACTION ISSUED BY DEFENDANT AMAZON. COM, INC. TO GREAT AMERICAN DUCK RACES, INC. | | Amazon. com, Inc ., a Delaware corporation, Defendant. Plaintiff Kangaroo Manufacturing, Inc. ("Kangaroo") hereby replies in support of its | | Objection and Motion to Quash the Subpoena To Produce Documents, Information, Or | | Objects Or To Permit Inspection Of Premises In A Civil Action (the " Motion") . Kangaroo. . | respectfully requests that this Court quash the subpoena (the " Subpoena") issued by Defendant Amazon. com, Inc. ("Amazon " ') to Great American Duck Races ("GAME") . In | | the alternative, Kangaroo respectfully requests that GAME be allowed to redact the " CONFIDENTIAL Material " or the " ATTORNEYS ' EYES ONLY – HIGHLY CONFIDENTIAL Material " protected by the Protective Order (the " Protective Order") 8 | issued by Judge Silver in Case No. CV - 17 - 212 - PHX - ROS (the " GAME Case ') and that | | Kangaroo should be able to review such redaction prior to disclosure to Amazon. First, counsel apologizes to the Court and counsel for failing to meet and confer with | | counsel for Amazon prior to filing the Motion to Quash the Subpoena. Counsel believed, due the short time frame set for GAME's compliance, such an effort would be futile as Amazon has been adamant about seeking similar information, specifically about Justin Ligeri (who is not a party to this case), from a number of sources. Though GAME did request an additional week within which to respond, counsel did not learn that Amazon had granted that extension until after the Motion was filed. Amazon has exhausted the sources of reputation evidence Amazon seeks information and documentation regarding " reputation, prior litigation history, previous fraudulent acts, or use (whether proper or improper) of any part of the Amazon. com marketplace by either Kangaroo or its principal, Justin Ligeri. . . or by any entities affiliated with Kangaroo or Justin Ligeri, including without limitation, Yagoozon, Inc ., and Pennies2Plantinum, Inc. " Unlike in Nova Products, Inc. v. Kisma Video, Inc ., 220 F. R. D. 238 (S. D. N. Y. 2004) where the Court ruled the third party information could be disclosed because it was disclosed in an arbitration without a protective order, the parties in the GAME case obtained the Protective Order. In addition, Rule 26 (b) states in pertinent part Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, . . . 2 8 | (Emphasis added) . In this case, Amazon has issued subpoena duces tecum to Kangaroo's competitors Rhode Island Novelty Company, Rubie's Costume Co ., Inc. (including a 500 + 4 | | page deposition from that case) and Oasis Supply Company. Amazon also has obtained information of criminal matters allegedly involving Mr. Ligeri that are over fifteen (15) years old. Amazon took the deposition of Mr. Ligeri, (both personally and as one of several | | Rule 30 (b) (6) deponents for Kangaroo) after it obtained much of this information. Amazon questioned Mr. Ligeri about all of it (See, Exhibit 1, the list of Exhibits from Mr. Ligeri's | deposition in this case) . Amazon has not alleged that Mr. Ligeri lied in his deposition. At this point, Amazon's pursuit of information regarding this topic is completely out of proportion to the needs of the case and is redundant. In fact, one of the topics of the Rule 30 (b) (6) deposition of Kangaroo was " 3. Allegations of fraud, admissions or guilty pleas regarding fraud, or convictions involving fraud, by or against Justin Ligeri, any other Kangaroo representative, or person identified by Kangaroo in its disclosures in this case. " See the Notice of Deposition of Plaintiff Kangaroo Manufacturing, Inc. attached hereto as Exhibit 2. Amazon had more than enough time to develop its theory of this case and evidence | of Mr. Ligeri's " reputation, prior litigation history ', previous fraudulent acts or use (whether ' All of which is available to Amazon online. In addition, Amazon sought copies of all Complaints from Kangaroo in discovery and Kangaroo provided copies of the Complaints to Amazon prior to the deposition. 8 proper or improper) of any part of the Amazon. com marketplace. . . " through direct | examination of Mr. Ligeri in his deposition. And Amazon did question Mr. Ligeri about all of these matters. Amazon also argues that it is entitled to discover evidence that is " relevant " . While that is true, the " relevance " standard, however, does not apply to nonparties. See Dart Indus. Co. v. Westwood Chem. Co ., 649 F. 2d 646, 649 (9th Cir. 1980) ("While discovery is a valuable right and should not be unnecessarily restricted. . ., the ' necessary ' restriction may be broader when a nonparty is the target of discovery. " '); see also, e. g ., Laxalt v. McClatchy, 116 F. R. D. 455, 458 (D. Nev. 1986) ("The standards for nonparty discovery. . . require a stronger showing of relevance than for simple party discovery .") . To obtain discovery from a nonparty, a party must demonstrate that its need for discovery outweighs the nonparty's interest in nondisclosure. ? See, e. g ., Slater Steel, Inc. v. Vac - Air Alloy Corp ., 107 F. R. D. | 246, 248 (W. D. N. Y. 1985) (granting a nonparty's motion for a protective order against | discovery involving entry upon land of nonparty in a fraud and contract action because the | | nonparty demonstrated that the information sought is highly confidential commercial matter and that disclosure would cause it significant harm) . Furthermore, Rule 26 (b) (2) (C) also requires courts to limit discovery where " the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive " and where " the 2 Kangaroo is not sure why GAME has not filed an opposition or moved to quash this | subpoena as the Rule 30 (b) (6) deposition of GAME would disclose sensitive financial information as well. 8 burden or expense of the proposed discovery outweighs its likely benefit, considering. . . the importance of discovery in resolving the issues. " Fed. R. Civ. P. 26 (b) (2) (C) (i) - (iii) . (Emphasis added) . As stated above, Amazon has vigorously been pursuing this line of inquiry, obtaining reputation evidence from a number of sources. II. Amazon failed to develop relevant evidence Amazon bases its Opposition upon allegations made by competitors of Kangaroo (and one unhappy former employee), parties with the incentive to use the courts to try to eliminate competition. The Rubie's Costume, Silvertop, and GAME cases are still pending. Kangaroo settled the e4Hats and Lion's Gate cases before trial. In its Complaint, Kangaroo alleges Amazon has damaged its reputation with its customers; i. e ., the third party sellers who buy from Kangaroo. (See, Complaint at Paragraphs 45 and 50)) . Kangaroo is less concerned about its reputation vis - à - vis its competitors. To date, Amazon has not developed any evidence that Kangaroo has a bad reputation with its customers. | III. GAME did not develop reputation testimony Amazon alleges (Opposition [ Doc. # 67 ] at page 5, 11. 7 - 11 that the " facts and allegations in the GAME suit undermine Kangaroo's claims regarding the strength of its brand and reputation " . GAME did not develop a line of questioning relevant to the subject 22 | | of Kangaroo's (or Mr. Ligeri ' s) reputation. GAME did not question Mr. Ligeri in either his | personal deposition or in his Rule 30 (b) (6) deposition about anything related to his | 3 Some of the claims in Kangaroo's Complaint belong to its affiliated company, Yagoozon, now known as Pennies2Platinum and will be heard by the American Arbitration Association as required by the contracts between the parties. 8 reputation (or that of Kangaroo or Yagoozon), his prior criminal history, or any alleged | fraudulent acts. GAME did not propound discovery requests regarding the topics of Mr. Ligeri's reputation, his prior criminal history, or any alleged fraudulent acts. Instead, GAME focused on the corporate structure of Kangaroo, specifically its financial health and structure, since GAME is most interested in making sure Kangaroo can | pay a judgment if Judge Silver enters one against it. All of this financial information is very highly confidential. In its discovery, GAME addressed only its allegations that Kangaroo in fringed its copyrights and trademarks, which it has not proven. | | IV. The Information in GAME is Highly Sensitive Financial Information Kangaroo seeks to quash the Subpoena because the information and documentation disclosed to GAME pursuant to the Protective Order is sensitive financial information, designated " FOR ATTORNEYS ' EYES ONLY – HIGHLY CONFIDENTIAL Material " . Amazon refers to the fact that, although the parties stipulated to a protective order in this case, the Court has not entered one. While the parties to this case have been working cooperatively about the information exchanged between them on claims made in this case, the type of financial information exchanged with Amazon thus far is related strictly to product sales. Amazon has not sought discovery of more detailed financial information. GAME inquired after and obtained from Mr. Ligeri information on the entire financial | structure of Kangaroo. Normally, the only time financial information of a party can be discovered is in a punitive damages case. Richbourg v. Jimerson, Case No. CV - 12 - 0136 TUC BGM (D. Ariz. 8 2012) (diversity jurisdiction case) (motion to compel disclosure of financial records denied) | ("Although Rule 26 (b) (1) allows for broad discovery, a litigant's right to that discovery is not unlimited. " District courts need not condone the use of discovery to engage in ' fishing expedition [ s ] . " " Rivera v. Nibco, Inc ., 364 F. 3d 1057, 1072 (9th Cir. 2004) . Toward this end, the [ Court ] has the inherent power to control discovery as it deems necessary .") Amazon is on a fishing expedition and its request is duplicative and unreasonably cumulative. Absent an order requiring Amazon to hold the information from GAME in the same confidential manner as is required by the Protective Order in the GAME Case (which restrictions are not present in this case), Kangaroo is concerned this sensitive financial information may be disclosed, to Kangaroo's detriment, such as having a negative impact on 8 - 88 85 U EU = Ea a un AN - its ability to secure financing. Conclusion Kangaroo respectfully requests that this Court enter an order quashing Amazon's subpoena to GAME. In the alternative, Kangaroo requests that GAME be ordered to redact all information and documentation sought by Amazon that is marked either " CONFIDENTIAL Material " and / or " ATTORNEYS ' EYES ONLY – HIGHLY | | CONFIDENTIAL Material " and allow Kangaroo's counsel the right to inspect the redacted material prior to GAME disclosing it to Amazon. 8 DATED: May 18, 2018. – 9 CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP By: P O Masti. Lisais Timothy R. Grimm Edith I. Rudder 1400 East Southern Avenue, Suite 400 Tempe, Arizona 85282 Attorneys for Plaintiff O x o CERTIFICATE OF SERVICE a = S - I hereby certify that on May 18, 2018, a true and correct copy of the foregoing | | document was electronically filed with the Clerk of the United States District Court of the District of Arizona by using the CM / ECF system, and that service will be accomplished by | | the CM / ECF system to all counsel of record. I further certify that I have mailed a true and correct copy of the foregoing document by United States Mail, first - class postage prepaid, sealed, as well as by email, addressed to: James Edward Geringer (james. geringer @ klarquist. com) Klarquist, Sparkman, L. L. P. 1 World Trade Ctr. 121 SW Salmon St ., Ste. 1600 Portland, Oregon 97204 Attorneys for Defendant Amazon. com | John A. Goldmark (johngoldmark dwt. com Max B. Hensley (maxhensley @ dwt. com) Davis Wright Tremaine 1201 Third Ave ., Ste. 2200 Seattle, WA 89101 - 3045 Attorneys for Defendant Amazon. com Liebe Goalan Vicki Goslin 8 EXHIBIT 1 8 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA AWN Kangaroo Manufacturing, Inc .,) No. No. CV - 17 - 1806 - PHX - SPL plaintiff, V. art Amazon. com, Inc ., Defendant. lo 11 WN 14 VIDEOTAPED 30 (b) (6) DEPOSITION OF KANGAROO MANUFACTURING, INC. AND PERSONAL DEPOSITION OF (JUSTIN LIGERI) 16 April 20, 2018 9: 19 a. m. Tempe, Arizona 17 18 2 2 23 AtkinsonBaker, Inc. Court Reporters (800) 288 - 3376 www. depo. com FILE NO. AC03BDF Prepared by: Marcella Daughtry, RPR Arizona CR NO. 50623 8 N INDEX WITNESS PAGE JUSTIN LIGERI O Examination by Mr. Geringer Examination by Mr. Goldmark 2. 40 N | INDEX TO EXHIBITS 7 8 9 Description Page Exhibit 35 103 Confidential deposition of Justin Ligeri 10 / 12 / 17 AMZ - KANGAROO00002232 to 2566 11 Exhibit 36 103 Deposition of Justin Ligeri 10 / 19 / 17 AMZ - KANGARO000002567 to 2830 Exhibit 37 103 14 E - mail chain from Justin Nicola to Robert Berman 8 / 7 / 13 " Re: Final Letter to Mr. Berman " AMZ - KANGAROO00002230 to 2231 15 16 Exhibit 38 132 Letter To Whom It May Concern with attachments from Michael Adams 8 / 14 / 17 KANGAROOM0003 - 004445 to 4483 끄 Exhibit 39 132 19 Joint stipulation for Entry of Judgment 20 Exhibit 40 order Granting Joint Stipulation 132 21 Exhibit 41 159 E - mail chain from Hutch Costello to Rob Coutard 4 / 20 / 17 " Subject: FW: I may need a favor " KANGAROOM0003 - 004715 to 4716 22 23 Exhibit 42 162 24 Motion for Leave to file Second Amended Complaint AMZ - KANGAROO00003061 to 3119 25 8 الا INDEX TO EXHIBITS, CONT ' D Description Page Exhibit 43 170 AWN Plaintiff Kangaroo Manufacturing Responses to Defendant's First Set of Requests for Production Exhibit 44 183 criminal docket 0531CR003803 October 21, 2005 AMZ - KANGAR0000002960 to 2971 Exhibit 45 189 Southcoast Today article october 27, 2006 AMZ - KANGAROO00001070 to 1071 00 N Exhibit 46 198 Criminal docket 0631CR000661 dated 3 / 14 / 2006 AMZ - KANGAR0000002957 to 2959 Exhibit 47 207 criminal docket 0331CR003441 dated April 30, 2004 AMZ - KANGARO000002951 to 2956 12 13 Exhibit 48 210 criminal information and counts AMZ - KANGARO000002976 to 3038 14 Exhibit 49 Judgment and disposition 218 15 Exhibit 50 223 16 Plaintiff Kangaroo's Responses to Defendant Amazon. com's Second Set of Requests for production 17 Exhibit 51 225 18 plaintiff Kangaroo's Responses to Defendant Amazon. com's Second Set of Interrogatories 19 Exhibit 52 227 Rankedipro conference packet AMZ - KANGARO000001084 to 1100 WS 21 Exhibit 53 237 Complaint KANGAROOM0003 - 004497 to 4507 Amazon lending registration information N Exhibit 54 306 23 24 Exhibit 55 Declaration of Justin Ligeri 319 25 8 EXHIBIT 2 8 JAMES E. GERINGER (admitted pro hac vice) james. geringer @ klarquist. com KLARQUIST SPARKMAN, LLP 121 SW Salmon Street, Suite 1600 Portland, Oregon 97204 Facsimile: (503) 595 - 5301 Telephone: (503) 595 - 5300 Facsimile: (503) 595 - 5301 JOHN GOLDMARK (admitted pro hac vice) johngoldmark @ dwt. com MAX B. HENSLEY (admitted pro hac vice) maxhensley @ dwt. com DAVIS WRIGHT TREMAINE, LLP 1201 Third Avenue, Suite 2200 Seattle, WA 98101 - 3045 Telephone: (206) 622 - 3150 Facsimile: (206) 757 - 7700 Counsel for Defendant AMAZON. COM, INC. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Kangaroo Manufacturing, Inc ., Case No .: CV - 17 - 1806 - PHX - SPL Plaintiff, Amazon. com, Inc ., Defendant. AMAZON'S AMENDED NOTICE OF DEPOSITION OF PLAINTIFF KANGAROO MANUFACTURING, INC. PLEASE TAKE NOTICE that pursuant to Fed. R. Civ. P. 30 (b) (6), Defendant Amazon. com, Inc. ("Amazon"), by and through its counsel, shall take the deposition upon oral examination of Plaintiff Kangaroo Manufacturing, Inc. beginning at 9: 00 a. m. on April 19, 2018 8 at the offices of Carpenter, Hazlewood, Delgado & Bolen, PLC in Tempe, Arizona. The deposition will be recorded stenographically by a court reporter authorized to administer oaths, and shall continue from day to day until completed, or according to a schedule mutually agreed upon by the parties. The deposition will be recorded electronically or stenographically in real time and may also be recorded by video. In accordance with Fed. R. Civ. P. 30 (b) (6), Plaintiff is required to designate one or more of its principals, officers, directors, managing agents, or other persons who consent to testify on its behalf with respect to all information that is known or reasonably available to Plaintiff concerning the subjects set forth in the attached Schedule A. For each person designated, Plaintiff shall advise counsel for Amazon of the identity of that person and the subjects on which that person shall testify reasonably in advance of the deposition. DATED this 6th day of April, 2018 By: s / James E. Geringer JAMES E. GERINGER (admitted pro hac vice) james. geringer @ klarquist. com KLARQUIST SPARKMAN, LLP 121 SW Salmon Street, Suite 1600 Portland, Oregon 97204 Telephone: (503) 595 - 5300 JOHN GOLDMARK (admitted pro hac vice) johngoldmark dwt. com MAX B. HENSLEY (admitted pro hac vice) maxhensley @ dwt. com DAVIS WRIGHT TREMAINE, LLP 1201 Third Avenue, Suite 2200 Seattle, WA 98101 - 3045 Telephone: (206) 622 - 3150 Counsel for Defendant AMAZON. COM, INC. Page 2 of 5 – AMENDED NOTICE OF 30 (b) (6) DEPOSITION OF KANGAROO 8 SCHEDULE A Topics | 1. The design, manufacture, marketing, and sales of " KANGAROO " brand products that feature emoji designs, including Kangaroo product numbers 10099 and 10094. 2. The design, manufacture, marketing, and sales of Kangaroo product numbers 10009 and 10013. 3. Allegations of fraud, admissions or guilty pleas regarding fraud, or convictions involving fraud, by or against Justin Ligeri, any other Kangaroo representative, or person identified by Kangaroo in its disclosures in this case. 4. Communications between anyone at Kangaroo with anyone at Rhode Island Novelty Company, or any entity known by the initials RIN or RINCO, that relate in any way to beach balls, balloons, or any product that features emoji designs. 5. The factual statements and assertions made in the complaint, and any evidence Kangaroo has | that may support those statements and assertions. 6. The statements and assertions made in plaintiff's disclosures in this case, including " Plaintiff's First Supplemental Disclsoure [ sic, Disclosure ] Statement " dated February 7, 2018. 7. The facts alleged, recited, assumed, or otherwise referenced in the February 15, 2018 report of Bryce Cook (the " Cook Report ' '), including without limitation the Kangaroo - supplied documents Mr. Cook relied upon as listed in Attachment A to his report. | | 8. Kangaroo's identification, purchase, and holding of the alleged infringing products it purchased | to " mitigat [ e ] its losses, " as referenced in the Cook Report. 9. The identity of Kangaroo's " authorized resellers, " as referenced in the Cook Report, and the nature of Kangaroo's relationship with such resellers. Page 3 of 5 – AMENDED NOTICE OF 30 (b) (6) DEPOSITION OF KANGAROO 8 | 10. Kangaroo's retention of documents and things relating to the claims made in the Complaint, efforts to retrieve and produce documents and information in this case, and the production of any of those documents or things to Amazon. 11. Any allegations by third parties that Kangaroo has infringed the intellectual property rights of others, and the status and nature of any disputes regarding the same. Page 4 of 5 - AMENDED NOTICE OF 30 (b) (6) DEPOSITION OF KANGAROO 8 CERTIFICATE OF SERVICE I hereby certify that on April 6, 2018, I served the foregoing document by electronic mail to counsel for Plaintiff: Timothy Grimm, Esq ., Timothy. Grimm @ carpenterhazlewood. com Edith I. Rudder, Esq ., Eadie. Rudder carpenterhazlewood. com CARPENTER, HAZLEWOOD, DELGADO & BOLEN, PLC 1400 East Southern Ave, Suite 400 Tempe, Arizona 85282 s / James E. Geringer Page 5 of 5 - AMENDED NOTICE OF 30 (b) (6) DEPOSITION OF KANGAROO

ORDER denying {{42}} Stipulation for Entry of Protective Order. FURTHER ORDERED denying {{63}} Motion to Quash. Signed by Judge Steven P Logan on 5/29/2018.

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8) No. CV-17-01806-PHX-SPL Kangaroo Manufacturing Incorporated, 9)) Plaintiff,) ORDER 10) vs. 11)) Amazon.com Incorporated,) 12) 13 Defendant.)) 14) 15 Before the Court is the parties' stipulation for entry of a proposed confidentiality 16 order to facilitate pre-trial discovery (Doc. 42), and Plaintiff's motion to quash (Doc. 63). 17 For the following reasons, both requests will be denied. As advised in its preliminary 18 order, as a general practice, this Court does not approve or adopt blanket, umbrella 19 protective orders or confidentiality agreements, even when stipulated to by the parties. 20 (Doc. 19.) 21 "It is well-established that the fruits of pretrial discovery are, in the absence of a 22 court order to the contrary, presumptively public. Rule 26(c) authorizes a district court to 23 override this presumption where 'good cause' is shown." San Jose Mercury News, Inc. v. 24 U.S. Dist. Ct., 187 F.3d 1096, 1103 (9th Cir. 1999) (citations omitted).1 But see Center 25 1 Rule 26(c) of the Federal Rules of Civil Procedure provides: 26 (1) In General. A party or any person from whom discovery is sought 27 may move for a protective order in the court where the action is pending ... The motion must include a certification that the movant has 28 in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The 1 for Auto Safety v. Chrysler Group, LLC, 809 F.3d 1092, 1101 (9th Cir. 2016) (whether 2 "compelling reasons" or merely "good cause" must be shown to limit public access and 3 warrant court protection depends on the relationship of the document to the merits of the 4 case). In order to show good cause exists to limit the public's access to material under 5 Rule 26(c), "the party seeking protection bears the burden of showing specific prejudice 6 or harm will result if no protective order is granted." Phillips v. G.M. Corp., 307 F.3d 7 1206, 1210-11 (9th Cir. 2002). "Broad allegations of harm, unsubstantiated by specific 8 examples or articulated reasoning, do not satisfy the Rule 26(c) test." Beckman Indus., 9 Inc. v. Int'l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992) (internal quotations and citations 10 omitted). Rather, the party seeking protection must make a "particularized showing of 11 good cause with respect to [each] individual document." San Jose Mercury News, 187 12 F.3d at 1102. 13 Although the parties identify in their stipulation "[s]pecific examples" of 14 information which they believe would be harmful if disclosed to the public, their 15 proposed order broadly encompasses all "Confidential Information," which is defined as 16 any information "that the designating Party believes in good faith constitutes or contains 17 confidential and proprietary financial or commercial information that the designating 18 Party has maintained in confidence." (Doc. 42-1 at 3.) This does not meet Rule 26(c)'s 19 threshold. The parties do not point to any specific document that is entitled to protection, 20 21 court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or 22 expense, including one or more of the following: 23 (A) forbidding the disclosure or discovery; (B) specifying terms, including time and place or the allocation of expenses, for the 24 disclosure or discovery; (C) prescribing a discovery method other than the one selected by the party seeking discovery; (D) forbidding inquiry 25 into certain matters, or limiting the scope of disclosure or discovery to certain matters; (E) designating the persons who may be present while 26 the discovery is conducted; (F) requiring that a deposition be sealed and opened only on court order; (G) requiring that a trade secret or 27 other confidential research, development, or commercial information not be revealed or be revealed only in a specified way; and (H) 28 requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as the court directs. 2 1 nor do they make any particularized showing that some actual disclosure will cause a 2 clearly defined injury. See Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir. 3 1995); AGA Shareholders, LLC v. CSK Auto, Inc., 2007 WL 4225450 (D. Ariz. Nov. 28, 4 2007). Nothing within Rule 26(c) indicates that it extends to prospective, blanket 5 protective orders, and the parties have offered no authority to the contrary. Cf. Foltz v. 6 State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1131 (9th Cir. 2003) (finding that 7 entering a blanket protective order without requiring the moving party "to show that 8 specific discovery documents, whether eventually filed with the court or not, contained 9 [confidential] information" was an abuse of discretion under Rule 26(c)); San Jose 10 Mercury News, 187 F.3d at 1103 (holding that blanket protective orders "are inherently 11 subject to challenge and modification, as the party resisting disclosure generally has not 12 made a particularized showing of good cause with respect to any individual document"). 13 Further, no party has shown that there is an actual dispute that commands Court 14 intervention and protection. See Fed. R. Civ. P. 26(c)(1); LRCiv 7.2. Kangaroo concedes 15 that it failed to meet and confer with Amazon prior to filing its motion to quash, and fails 16 to demonstrate that the parties are unable to reach a resolution without Court assistance. 17 (Doc. 70.) The parties remain free to mutually enter into a written agreement to facilitate 18 the exchange of confidential disclosures without court approval or supervision. And, in 19 the event discovery mandates disclosure of specific, harmful, confidential material, the 20 parties will not be precluded from presenting a request to the Court at that time in a 21 manner tailored to protect the particular interests and materials at hand. See Foltz, 331 22 F.3d at 1136. Accordingly, 23 IT IS ORDERED that the Stipulation for Entry of Protective Order (Doc. 42) is 24 denied. 25 IT IS FURTHERED ORDERED that the Motion to Quash (Doc. 63) is denied. 26 Dated this 29th day of May, 2018. 27 Honorable Steven P. Logan 28 United States District Judge 3

MOTION for Partial Summary Judgment by Amazon.com Incorporated.

2 1 DAVIS WRIGHT TREMAINE LLP John A. Goldmark (admitted pro hac vice) 2 Max B. Hensley (admitted pro hac vice) 1201 Third Avenue, Suite 2200 3 Seattle, WA 98101-3045 Tel: (206) 622-3150; Fax: (206) 757-7700 4 Email: johngoldmark@dwt.com maxhensley@dwt.com 5 Attorneys for Defendant 6 7 8 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA 9 10 Kangaroo Manufacturing, Inc., a Florida corporation, No. 2:17-cv-01806-SPL 11 Plaintiff, AMAZON'S MOTION 12 v. FOR PARTIAL SUMMARY JUDGMENT 13 Amazon.com, Inc., a Delaware corporation, 14 Defendant. 15 16 17 18 19 20 21 22 23 24 25 26 MOTION FOR PARTIAL SUMMARY JUDGMENT Davis Wright Tremaine LLP Case No. 2.L17-cv-01806-SPL L AW O F FI CE S 1201 Third Avenue, Suite 2200 4844-3023-3452v.8 0051461-001587 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax 2 1 TABLE OF CONTENTS 2 MOTION ........................................................................................................................ 1 3 MEMORANDUM OF LAW.......................................................................................... 1 4 I. BACKGROUND ................................................................................................. 2 5 II. ARGUMENT ...................................................................................................... 2 6 A. Legal Standard.......................................................................................... 2 7 B. Kangaroo's Federal Claims Should Be Substantially Narrowed ............. 2 8 1. Amazon Is Not Liable for Alleged Trademark or Copyright 9 Infringement by Third-Party Sales on the Marketplace. ............... 3 10 2. Kangaroo's Copyright Claims for Copying and Displaying Its Images on the Website Fail. ..................................................... 5 11 3. Kangaroo Has No Evidence to Support Its Willfulness 12 Claims. .......................................................................................... 7 13 C. Kangaroo's State Law Claims, Except One, Fail as a Matter of Law. ..................................................................................................... 9 14 1. Kangaroo's Negligence Claim Fails. ............................................ 9 15 a. Kangaroo's Negligence Claim Fails Because It Has Identified No Legal Duty Owed to It by Amazon. ............ 9 16 b. Kangaroo Cannot Hold Amazon Responsible for 17 Third-Party Sales and Content. ........................................ 10 18 c. Kangaroo Cannot Assert Claims on Behalf of Others. .... 12 19 2. Kangaroo's Unjust Enrichment Claim Fails. .............................. 13 20 3. Kangaroo's Duplicative Unfair Competition Claim Fails to the Same Extent As Its Lanham Act Claim. ........................... 14 21 4. Kangaroo's Tortious Interference Claim Fails............................ 14 22 5. The Court Should Reject Kangaroo's Punitive 23 Damages Claim. .......................................................................... 15 24 III. CONCLUSION ................................................................................................. 15 25 26 MOTION FOR PARTIAL SUMMARY JUDGMENT Davis Wright Tremaine LLP Case No. 2.L17-cv-01806-SPL – i L AW O F FI CE S 1201 Third Avenue, Suite 2200 4844-3023-3452v.8 0051461-001587 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax 2 TABLE OF AUTHORITIES 1 Page(s) 2 3 Cases 4 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) .....................................................................................................2 5 Barnes v. Yahoo!, Inc., 6 570 F.3d 1096 (9th Cir. 2009) .................................................................................. 12 7 BWP Media USA, Inc. v. Clarity Digital Grp., LLC, 820 F.3d 1175 (10th Cir. 2016) ...................................................................................6 8 Carafano v. Metrosplash.Com, Inc., 9 339 F.3d 1119 (9th Cir. 2003) .................................................................................. 11 10 Celotex Corp. v. Catrett, 11 477 U.S. 317 (1986) .....................................................................................................2 12 Corbis Corp. v. Amazon.com, Inc., 351 F. Supp. 2d 1090 (W.D. Wash. 2004)................................................................ 11 13 Cortez v. Skol, 14 2016 WL 3658954 (D. Ariz. Mar. 25, 2016) ...............................................................2 15 Craten v. Foster Poultry Farms Inc., 2018 WL 834937 (D. Ariz. Feb. 13, 2018)............................................................... 15 16 DC Comics v. Towle, 17 802 F.3d 1012 (9th Cir. 2015) .....................................................................................8 18 eMove Inc. v. SMD Software Inc., 19 2012 WL 1379063 (D. Ariz. Apr. 20, 2012) ...................................................... 14, 15 20 Erie Ins. Co. v. Amazon.com Inc., 2018 WL 3046243 (D. Md. Jan. 22, 2018) ......................................................... 11, 12 21 Evergreen Safety Council v. RSA Network, Inc., 22 697 F.3d 1221 (9th Cir. 2012) .....................................................................................8 23 Fifty-Six Hope Rd. Music, Ltd. v. A.V.E.L.A., Inc., 778 F.3d 1059 (9th Cir. 2015) .....................................................................................8 24 Fox Broad. Co. v. Dish Network L.L.C., 25 747 F.3d 1060 (9th Cir. 2014) .....................................................................................5 26 MOTION FOR PARTIAL SUMMARY JUDGMENT Davis Wright Tremaine LLP Case No. 2.L17-cv-01806-SPL – ii L AW O F FI CE S 1201 Third Avenue, Suite 2200 4844-3023-3452v.8 0051461-001587 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax 2 Gipson v. Kasey, 1 214 Ariz. 141, 150 P.3d 228 (2007) ............................................................................9 2 Green v. AOL, 3 318 F.3d 465 (3d Cir. 2003) ..................................................................................... 10 4 Kodadek v. MTV Networks, Inc., 152 F.3d 1209 (9th Cir. 1998) .................................................................................. 14 5 Lasoff v. Amazon.com Inc., 6 2017 WL 372948 (W.D. Wash. Jan. 26, 2017), appeal filed, No. 17-35173 (9th Cir. Feb. 24, 2017) ................................................ 11 7 Lips v. Scottsdale Healthcare Corp., 8 224 Ariz. 266, 229 P.3d 1008 (2010) ................................................................... 9, 10 9 Louis Vuitton Malletier, S.A. v. Akanoc Sols., Inc., 10 658 F.3d 936 (9th Cir. 2011) .......................................................................................8 11 McDonald v. LG Elecs., USA, Inc., 219 F. Supp. 3d 533 (D. Md. 2016) .............................................................................4 12 MDY Indus., LLC v. Blizzard Entm't, Inc., 13 629 F.3d 928 (9th Cir. 2010), as amended on denial of reh'g (Feb. 17, 2011) ...........................................................7 14 Milo & Gabby, LLC v. Amazon.com, Inc., 15 2015 WL 4394673 (W.D. Wash. July 16, 2015), 16 aff'd, 693 F. App'x 879 (Fed. Cir. 2017), cert. denied, 138 S. Ct. 335 (2017) ..................................................................... 5, 6, 7 17 Milo & Gabby LLC v. Amazon.com, Inc., 18 693 F. App'x 879 (Fed. Cir. 2017), cert. denied, 138 S. Ct. 335 (2017) ......................................................................... 4, 5 19 Oberdorf v. Amazon.com, Inc., 20 295 F. Supp. 3d 496 (M.D. Pa. 2017), 21 appeal filed, No. 18-1041 (3d Cir. Jan. 14, 2018) ................................................ 4, 11 22 Parisi v. Sinclair, 774 F. Supp. 2d 310 (D.D.C. 2011) .......................................................................... 12 23 Quiroz v. Alcoa, Inc., 24 243 Ariz. 560, 416 P.3d 824 (2018) ............................................................................9 25 Sec. Title Agency, Inc. v. Pope, 219 Ariz. 480, 498200 P.3d 977 (Ariz. App. 2008) ................................................. 15 26 MOTION FOR PARTIAL SUMMARY JUDGMENT Davis Wright Tremaine LLP Case No. 2.L17-cv-01806-SPL – iii L AW O F FI CE S 1201 Third Avenue, Suite 2200 4844-3023-3452v.8 0051461-001587 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax 2 Stone Creek Inc. v. Omnia Italian Design Inc., 1 2018 WL 1784689 (D. Ariz. Apr. 12, 2018), 2 appeal filed, No. 18-15914 (9th Cir. May 21, 2018) ...................................................8 3 ThermoLife Int'l, LLC v. Gaspari Nutrition, Inc., 871 F. Supp. 2d 905 (D. Ariz. 2012) ........................................................................ 14 4 Tiffany (NJ) Inc. v. eBay Inc., 5 600 F. 3d 93 (2d Cir. 2010) .........................................................................................4 6 Trustmark Ins. Co. v. Bank One, Ariz., NA, 202 Ariz. 535, 48 P.3d 485 (Ariz. App. 2002) ......................................................... 13 7 UMG Recordings, Inc. v. Shelter Capital Partners LLC, 8 718 F.3d 1006 (9th Cir. 2013) .....................................................................................6 9 Wagenseller v. Scottsdale Mem'l Hosp., 10 147 Ariz. 370, 710 P.2d 1025 (1985) ....................................................................... 14 11 Zeran v. AOL, 129 F.3d 327 (4th Cir. 1997) .................................................................................... 10 12 Statutes 13 15 U.S.C. § 1125(a) ...........................................................................................................9 14 17 U.S.C. § 512(c) .............................................................................................................6 15 47 U.S.C. § 230(c)(1) ..................................................................................................... 10 16 Other Authorities 17 Fed. R. Civ. P. 56(a) ..........................................................................................................2 18 19 2 Nimmer on Copyright § 8.12 (2018) ..............................................................................3 20 Dan B. Dobbs, The Law of Torts § 452 (Supp. 2009) ................................................... 10 21 22 23 24 25 26 MOTION FOR PARTIAL SUMMARY JUDGMENT Davis Wright Tremaine LLP Case No. 2.L17-cv-01806-SPL – iv L AW O F FI CE S 1201 Third Avenue, Suite 2200 4844-3023-3452v.8 0051461-001587 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax 2 1 MOTION 2 Kangaroo Manufacturing, Inc.'s ("Kangaroo") Complaint alleges seven causes of 3 action: (1) trademark infringement and false designation of origin; (2) use of counterfeit 4 trademarks; (3) copyright infringement; (4) negligence; (5) unjust enrichment; (6) unfair 5 competition; and (7) tortious interference with a prospective contract. By this motion, 6 Amazon.com, Inc. ("Amazon") seeks summary judgment on all of Kangaroo's claims, 7 except the Lanham Act and duplicative state-law unfair competition claims (Counts I, II 8 & IV) to the extent those claims allege Amazon itself sold certain of the accused 9 products. Kangaroo's remaining claims all fail under settled law and the undisputed 10 facts disclosed in discovery. The Court should therefore dismiss them. The Court 11 should also dismiss Kangaroo's claims for "willful" infringement and state law punitive 12 damages, which no evidence supports. 13 MEMORANDUM OF LAW 14 This case presents a simple, narrow intellectual property dispute between 15 Kangaroo and Amazon. But Kangaroo's scattershot Complaint (Dkt. 1) is not so 16 confined. The Complaint's seven causes of action cast a wide range of convoluted, 17 duplicative, and vague factual allegations. Having completed discovery, including 18 Kangaroo's mandatory disclosures, it is now clear that most of these claims lack factual 19 support, improperly attack Amazon for the acts of third parties, or seek to vicariously 20 recover for alleged breaches of a contract to which Kangaroo is not a party. The Court 21 should dismiss these unsupported and legally flawed claims, while leaving for trial the 22 narrower Lanham Act and unfair competition claims based on alleged unlawful product 23 sales by Amazon. Summary judgment is warranted and will enable efficient resolution 24 of the remaining claims. 25 26 MOTION FOR PARTIAL SUMMARY JUDGMENT Davis Wright Tremaine LLP Case No. 2.L17-cv-01806-SPL – 1 L AW O F FI CE S 1201 Third Avenue, Suite 2200 4844-3023-3452v.8 0051461-001587 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax 2 1 I. STATEMENT OF FACTS 2 Amazon incorporates its separately filed Statement of Facts ("SOF"), the 3 Declaration of Ella Irwin and the exhibits thereto, and the Declaration of John A. 4 Goldmark and the exhibits thereto. 5 II. ARGUMENT 6 A. Legal Standard 7 Summary judgment is appropriate when there is no genuine dispute as to any 8 material fact and the moving party is entitled to judgment as a matter of law. Fed. R. 9 Civ. P. 56(a). "The moving party merely needs to point out to the Court the absence of 10 evidence supporting its opponent's claim; it does not need to disprove its opponent's 11 claim." Cortez v. Skol, 2016 WL 3658954, at *3 (D. Ariz. Mar. 25, 2016) (citing Celotex 12 Corp. v. Catrett, 477 U.S. 317, 325 (1986)). The party opposing summary judgment 13 then "may not rest upon the mere allegations or denials of the adverse party's pleading, 14 but must set forth specific facts showing that there is a genuine issue for trial." Id. 15 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)). 16 B. Kangaroo's Federal Claims Should Be Substantially Narrowed. Kangaroo's Complaint pleads three federal IP claims—two trademark (Counts I & 17 II) and one copyright (Count III). The bulk of these claims either fail as a matter of law 18 or must be dismissed as Kangaroo has failed to produce any facts to support them. 19 First, Kangaroo's trademark and copyright claims based on third-party sales 20 (nearly 40% of the accused sales) all fail because settled law holds that Amazon cannot 21 be held liable for alleged infringing sales by third parties selling on its marketplace. 22 Second, Kangaroo's copyright claims for copying and distributing its images on 23 the Amazon website fail because (a) third parties, not Amazon, were responsible for 24 copying and uploading those images, (b) Amazon is protected from liability for storing 25 26 MOTION FOR PARTIAL SUMMARY JUDGMENT Davis Wright Tremaine LLP Case No. 2.L17-cv-01806-SPL – 2 L AW O F FI CE S 1201 Third Avenue, Suite 2200 4844-3023-3452v.8 0051461-001587 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax 2 1 and making accessible such images under the Digital Millennium Copyright Act 2 ("DMCA"), and (c) Amazon had a license to use and display the materials in any event. 3 Third, Kangaroo's claims for willful infringement fail because the undisputed 4 facts show Amazon worked with Kangaroo to protect its IP rights, responded to its 5 claims of infringement, and removed alleged infringing material where appropriate. 6 Kangaroo has no basis to continue threatening Amazon with claims for enhanced 7 damages. 8 1. Amazon Is Not Liable for Alleged Trademark or Copyright Infringement by Third-Party Sales on the Marketplace. 9 Kangaroo seeks to hold Amazon liable for alleged trademark and copyright 10 infringements for sales Amazon did not make. See Compl. ¶ 45 (alleging trademark 11 infringement because Amazon "delivered counterfeit goods to customers"); SOF ¶ 15 12 (Kangaroo's damages report includes alleged damages from third-party sales). It is 13 undisputed that nearly 40% of the accused sales were by third-party sellers—not 14 Amazon. SOF ¶ 16. These third parties independently own, list, and sell their products 15 to customers through the Amazon marketplace. SOF ¶ 2. Under settled law, Amazon 16 cannot be held liable for these third-party sales.1 17 First, and most importantly, Amazon never held title to the alleged infringing 18 products sold by third-party sellers. SOF ¶ 4. Absent that control, it cannot be said to 19 have sold title it never held. As the leading commentator on copyright law explains, the 20 term "sale" is defined as an "authorized disposition by which title passes." 2 Nimmer on 21 Copyright § 8.12 (2018) (emphasis added). More granularly, Amazon has none of the 22 usual characteristics of a seller. As the Federal Circuit explained in holding Amazon not 23 liable for alleged infringement by third parties on the Amazon marketplace: 24 25 1 Kangaroo did not plead theories of contributory or secondary copyright or trademark 26 infringement. Nor has it produced any facts which could substantiate such theories. MOTION FOR PARTIAL SUMMARY JUDGMENT Davis Wright Tremaine LLP Case No. 2.L17-cv-01806-SPL – 3 L AW O F FI CE S 1201 Third Avenue, Suite 2200 4844-3023-3452v.8 0051461-001587 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax 2 1 Amazon, moreover, did not control what information or pictures were put on the product-detail page, nor did it control the price for which the 2 product was sold. … [T]hird-party sellers … controlled these details at all times. Amazon, therefore, was not responsible for the actual listing of the 3 product for sale, consummating the sale, or transferring title. Instead, Amazon merely provided an online marketplace that third-party sellers 4 could use to sell their products and then, in some instances when the third- party sellers used the additional Amazon services, shipped the products to the final destination. Thus, while Amazon's services made it easier for 5 third parties to consummate a sale, the third parties remained the sellers. 6 Milo & Gabby LLC v. Amazon.com, Inc., 693 F. App'x 879, 886-87 (Fed. Cir. 2017) 7 (citation omitted), cert. denied, 138 S. Ct. 335 (2017). 8 In Milo & Gabby, the Federal Circuit held that Amazon was not a seller of 9 products sold by third parties on its website, applying the common meaning of the term 10 and the Uniform Commercial Code. Id. at 890-91. The court reasoned that, because 11 Amazon "merely provides an online marketplace followed by logistical and shipping 12 services after the third-party seller has completed its transaction with a buyer, Amazon is 13 not a seller" under federal law. Id. at 890. The court thus affirmed summary judgment 14 of the trademark and copyright claims against Amazon. Id. at 881-82, 893. 15 Courts across the country have repeatedly and uniformly reached this same 16 conclusion, rejecting claims seeking to hold Amazon (or other online marketplaces) 17 liable for third-party sales under a variety of claims, including the Lanham Act. See, 18 e.g., Tiffany (NJ) Inc. v. eBay Inc., 600 F. 3d 93, 114 (2d Cir. 2010) (affirming summary 19 judgment dismissal of trademark infringement and dilution claims: "It is true that eBay 20 did not itself sell counterfeit Tiffany goods; only the fraudulent vendors did, and that is 21 in part why we conclude that eBay did not infringe Tiffany's mark."); Oberdorf v. 22 Amazon.com, Inc., 295 F. Supp. 3d 496, 499-501 (M.D. Pa. 2017) (summary judgment 23 dismissal of products liability claims against Amazon because it was not the seller), 24 appeal filed, No. 18-1041 (3d Cir. Jan. 14, 2018); McDonald v. LG Elecs., USA, Inc., 25 219 F. Supp. 3d 533, 542 (D. Md. 2016) (dismissing claims because "Amazon's role as 26 the 'platform' for the third-party sales does not qualify it as a merchant or seller"). MOTION FOR PARTIAL SUMMARY JUDGMENT Davis Wright Tremaine LLP Case No. 2.L17-cv-01806-SPL – 4 L AW O F FI CE S 1201 Third Avenue, Suite 2200 4844-3023-3452v.8 0051461-001587 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax 2 1 The same is true here. See SOF ¶ 2. As a result, Kangaroo's infringement claims 2 against Amazon based on third-party sales have been brought against the wrong party, 3 and fail as a matter of law. 4 2. Kangaroo's Copyright Claims for Copying and Displaying Its Images on the Website Fail. 5 Kangaroo alleges Amazon violated its copyright in "the product design and 6 images" of one product (emoji beach balls) "[b]y copying and displaying the copyrighted 7 image and design to sell counterfeits." SOF ¶ 18a.2 But this claim fails for at least three 8 reasons. 9 First, the evidence does not support Amazon's liability for copyright infringement 10 because such infringement "requires 'copying by the defendant,' which comprises a 11 requirement that the defendant cause the copying." Milo & Gabby, LLC v. Amazon.com, 12 Inc., 2015 WL 4394673, at *4 (W.D. Wash. July 16, 2015) (quoting Fox Broad. Co. v. 13 Dish Network L.L.C., 747 F.3d 1060, 1067 (9th Cir. 2014)), aff'd, 693 F. App'x 879 14 (Fed. Cir. 2017). For instance, in Milo & Gabby, plaintiff alleged Amazon was liable for 15 copyright infringement based on sales of inauthentic products from detail pages 16 displaying plaintiff's copyrighted material. Id. at *2. The court granted Amazon 17 summary judgment because "there is no evidence in the record that Amazon actively 18 reviewed, edited, altered or copied Plaintiffs' images." Id. at *4. The court further 19 emphasized that "the content of the detail pages and advertisements was supplied by 20 third[ ]parties via an automated file upload system, and did not originate from Amazon." 21 Id. at *6. The same is true here. See SOF ¶¶ 25-26. The evidence shows Amazon's 22 automated process uploads detail page content from contributions from sellers and 23 manufacturers, and Kangaroo has no evidence to show Amazon actively reviewed or 24 25 2 Kangaroo pleaded only two copyrights in this matter, covering emoji designs and photographs. See Compl. ¶ 65 & Exs. 1-2. Kangaroo's copyright claims, therefore, are 26 limited to alleged infringements of those copyrights. MOTION FOR PARTIAL SUMMARY JUDGMENT Davis Wright Tremaine LLP Case No. 2.L17-cv-01806-SPL – 5 L AW O F FI CE S 1201 Third Avenue, Suite 2200 4844-3023-3452v.8 0051461-001587 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax 2 1 copied the material. As a result, there are no disputed issues of material fact and 2 summary judgment is appropriate on the copyright claims. 3 Second, even if Kangaroo could show infringement by Amazon, the DMCA bars 4 Kangaroo's copyright claims. See 17 U.S.C. § 512(c). The DMCA safe harbor 5 "protect[s] online and internet service providers ('ISPs') from monetary liability … when 6 copyright infringement occurs through use of the service." BWP Media USA, Inc. v. 7 Clarity Digital Grp., LLC, 820 F.3d 1175, 1177-78 (10th Cir. 2016); see also UMG 8 Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006, 1014 (9th Cir. 2013). 9 Thus, under 17 U.S.C. § 512(c), a website provider that meets the DMCA's threshold 10 requirements3 is not liable "for infringement of copyright by reason of the storage at the 11 direction of a user" if the provider (1) does not have actual or apparent knowledge that 12 the material is infringing, id. § 512(c)(1)(A)(i)-(ii); (2) upon obtaining such knowledge, 13 "acts expeditiously to remove, or disable access to, the material," id. § 512(c)(1)(A)(iii); 14 and (3) does not have "the right and ability to control [the infringing] activity" (or, if it 15 does, does not benefit financially from the infringement), id. § 512(c)(1)(B). 16 Here, no evidence supports that Amazon knew of the alleged infringement before 17 this lawsuit. Amazon has a process for submitting reports of infringement as required by 18 the DMCA. SOF ¶¶ 20-21. In fact, Kangaroo has used this process to submit "notice 19 and take down" requests for other listings, and Amazon responded, taking down the 20 material where appropriate and usually within days. SOF ¶ 22. But Kangaroo never 21 submitted such a request for copyrighted material on the detail pages for the products at 22 issue in this case. See id. As a result, Kangaroo's copyright claims fail as a matter of 23 law. Further, Kangaroo acknowledged Amazon removed the listings at issue after 24 25 3 Courts have recognized Amazon meets the threshold requirements. See Milo & Gabby, 26 2015 WL 4394673, at *7-8. MOTION FOR PARTIAL SUMMARY JUDGMENT Davis Wright Tremaine LLP Case No. 2.L17-cv-01806-SPL – 6 L AW O F FI CE S 1201 Third Avenue, Suite 2200 4844-3023-3452v.8 0051461-001587 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax 2 1 Kangaroo gave notice by filing suit. See SOF ¶ 2. Finally, courts have found in similar 2 contexts that Amazon does not have the "ability to control" the infringing activity: 3 It is undisputed that Amazon lacks the ability to analyze every image it receives from third party sellers, compare the submitted image to all other 4 copyrighted images that exist in the world, and determine whether each submitted image infringes someone's copyright interest. As a result, 5 Amazon lacks the ability to control the infringing activity. 6 Milo & Gabby, 2015 WL 4394673, at *9 (citations and internal quotations omitted). 7 Third, Kangaroo's copyright claims fail because all copyrighted materials 8 displayed on the Amazon site were under license. Kangaroo admits that its authorized 9 Amazon reseller—owned and controlled by the same individual who owns and controls 10 Kangaroo—entered into an agreement with Amazon to sell the products at issue in this 11 litigation on Amazon's website. See SOF ¶¶ 5-6. In that agreement, the Amazon 12 Business Solutions Agreement ("BSA"), Kangaroo's authorized seller granted Amazon 13 the following license: 14 You grant us a royalty-free, non-exclusive, worldwide, perpetual, irrevocable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise 15 commercially or non-commercially exploit in any manner, any and all of Your Materials, [defined as] "all Technology, Your Trademarks, Content, 16 Your Product information, data, materials, and other items or information provided or made available by you or your Affiliates to Amazon or its 17 Affiliates." 18 SOF ¶ 7 (emphases added). Amazon cannot have infringed for behavior authorized by 19 the valid license it held. See, e.g., MDY Indus., LLC v. Blizzard Entm't, Inc., 629 F.3d 20 928, 939 (9th Cir. 2010), as amended on denial of reh'g (Feb. 17, 2011). 21 For all these reason, Kangaroo's copyright claims fail in their entirety.4 22 3. Kangaroo Has No Evidence to Support Its Willfulness Claims. 23 Under both the Copyright Act and the Lanham Act, damages may be enhanced 24 only if plaintiff can show willful infringement. Kangaroo can make no such showing. 25 4 Kangaroo's Lanham Claims (Counts I & II) based on the alleged infringing display of 26 Kangaroo trademarks also fail based on the license. MOTION FOR PARTIAL SUMMARY JUDGMENT Davis Wright Tremaine LLP Case No. 2.L17-cv-01806-SPL – 7 L AW O F FI CE S 1201 Third Avenue, Suite 2200 4844-3023-3452v.8 0051461-001587 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax 2 1 "Willful trademark infringement occurs when the defendant's actions are willfully 2 calculated to exploit the advantage of an established mark." DC Comics v. Towle, 802 3 F.3d 1012, 1026 (9th Cir. 2015) (citation and internal quotations omitted). Plaintiff must 4 establish "a connection between a defendant's awareness of its competitors and its 5 actions at those competitors' expense." Fifty-Six Hope Rd. Music, Ltd. v. A.V.E.L.A., 6 Inc., 778 F.3d 1059, 1074 (9th Cir. 2015) (citation and internal quotations omitted). 7 Importantly, evidence of mere "[c]arelessness is quite different from an intent to 8 confuse." Stone Creek Inc. v. Omnia Italian Design Inc., 2018 WL 1784689, at *2 (D. 9 Ariz. Apr. 12, 2018), appeal filed, No. 18-15914 (9th Cir. May 21, 2018). Similarly, a 10 plaintiff claiming willful copyright infringement must establish "(1) that the defendant 11 was actually aware of the infringing activity, or (2) that the defendant's actions were the 12 result of 'reckless disregard' for, or 'willful blindness' to, the copyright holder's rights." 13 Louis Vuitton Malletier, S.A. v. Akanoc Sols., Inc., 658 F.3d 936, 944 (9th Cir. 2011) 14 (citation and internal quotations omitted). A defendant does not willfully infringe if the 15 "infringing works were produced under color of title, such as under a reasonable belief 16 that the infringer possesses a license or implied license." Evergreen Safety Council v. 17 RSA Network, Inc., 697 F.3d 1221, 1228 (9th Cir. 2012). 18 Kangaroo's claims do not remotely satisfy these standards. Instead, as shown 19 above, Amazon had a license to use the images and repeatedly cooperated with Kangaroo 20 in responding to infringement notices. Indeed, when Kangaroo's Rule 30(b)(6) witness 21 on alleged willfulness was asked to identify evidence supporting the allegation, 22 Kangaroo pointed only to its emails with Amazon in which it submitted notices of 23 claimed infringement—to which Amazon responded and removed the complained of 24 material where appropriate. See SOF ¶ 17. Kangaroo has neither produced nor 25 identified, and cannot show, any facts which could support a finding of willfulness. 26 MOTION FOR PARTIAL SUMMARY JUDGMENT Davis Wright Tremaine LLP Case No. 2.L17-cv-01806-SPL – 8 L AW O F FI CE S 1201 Third Avenue, Suite 2200 4844-3023-3452v.8 0051461-001587 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax 2 1 C. Kangaroo's State Law Claims, Except One, Fail as a Matter of Law. 2 Kangaroo asserts four state law claims: (1) negligence, (2) unjust enrichment, 3 (3) unfair competition, and (4) tortious interference.5 To the extent the unfair 4 competition claim mirrors Kangaroo's claim under 15 U.S.C. § 1125(a) (Count I), 5 Amazon does not seek summary judgment, but all other state law claims fail as a matter 6 of law. 7 1. Kangaroo's Negligence Claim Fails. 8 Kangaroo asserted convoluted and wide-ranging negligence claims in its 9 Complaint, but has since narrowed its theories in its mandatory disclosures. In response 10 to the requirement to state all facts and legal theories relevant to its negligence claim, 11 Kangaroo stated: "Amazon has a duty to exercise reasonable care in administering 12 Kangaroo's PDPs, enabling sales of genuine products and enforcing policies to prevent 13 counterfeit sales. Amazon breached its duty of care."6 SOF ¶ 18b. This claim fails as a 14 matter of law. 15 a. Kangaroo's Negligence Claim Fails Because It Has Identified No Legal Duty Owed to It by Amazon. 16 "[A]bsent some duty, an action for negligence cannot be maintained." Gipson v. 17 Kasey, 214 Ariz. 141, 143, 150 P.3d 228 (2007). "Whether a duty exists is a matter of 18 law for the court to decide." Lips v. Scottsdale Healthcare Corp., 224 Ariz. 266, 268, 19 229 P.3d 1008 (2010). "[D]uty in Arizona is based on either recognized common law 20 special relationships or relationships created by public policy." Quiroz v. Alcoa, Inc., 243 21 5 22 Amazon cites Arizona law because there appears to be no material conflict with Washington law on the issues relevant to this motion, but Amazon reserves the right to 23 later seek application of Washington law. 6 Kangaroo's Complaint also alleged Amazon negligently overcharged P2P for FBA 24 fees. See Compl. ¶¶ 97-100. But Kangaroo abandoned claims related to FBA overcharges. See SOF ¶ 19 ("Kangaroo has not made any allegations in this case as to 25 overcharges by Amazon for storage or fulfillment" and "Kangaroo does not have any documents" related to overcharges). Kangaroo then confirmed withdrawal of FBA- 26 related claims in responding to Amazon's pre-motion conferral statement. See id. MOTION FOR PARTIAL SUMMARY JUDGMENT Davis Wright Tremaine LLP Case No. 2.L17-cv-01806-SPL – 9 L AW O F FI CE S 1201 Third Avenue, Suite 2200 4844-3023-3452v.8 0051461-001587 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax 2 1 Ariz. 560, 416 P.3d 824, 829 (2018). Arizona "[c]ourts have not recognized a general 2 duty to exercise reasonable care for the purely economic well-being of others, as 3 distinguished from their physical safety or the physical safety of their 4 property." See Lips, 224 Ariz. at 268 (citing Dan B. Dobbs, The Law of Torts § 452, at 5 329-31 (Supp. 2009)). Instead, "liability for negligence [in such cases] ... must depend 6 upon the existence of some special reasons for finding a duty of care." Id. (citations and 7 internal quotations omitted) (alteration in original). 8 Here, there is no "special relationship" between the parties. Kangaroo's claim 9 rests on the flawed premise that Amazon owes Kangaroo (and every other manufacturer 10 in the world) a "general duty to exercise reasonable care for the purely economic well- 11 being of others"—a notion the law squarely rejects. See id. The negligence claim thus 12 fails for this reason alone. Further, a negligence claim requires proof of damages and 13 causation, and Kangaroo has provided no evidence of damages caused by alleged 14 breaches of any (nonexistent) duty to properly administer product listings or enforce its 15 online polices. See SOF ¶ 13. 16 b. Kangaroo Cannot Hold Amazon Responsible for Third- Party Sales and Content. 17 Kangaroo's negligence claim also fails because it cannot impose liability on 18 Amazon for third-party sales and content under any state law theory. Section 230 of the 19 Communications Decency Act ("CDA") provides federal immunity for claims relating to 20 third-party content on marketplaces like Amazon: "No provider or user of an interactive 21 computer service shall be treated as the publisher or speaker of any information provided 22 by another information content provider." 47 U.S.C. § 230(c)(1). It preempts state law 23 and "provides immunity to [Amazon] as a publisher or speaker of information 24 originating from another information content provider." Green v. AOL, 318 F.3d 465, 25 471 (3d Cir. 2003); see also Zeran v. AOL, 129 F.3d 327, 330 (4th Cir. 1997). "[S]o long 26 MOTION FOR PARTIAL SUMMARY JUDGMENT Davis Wright Tremaine LLP Case No. 2.L17-cv-01806-SPL – 10 L AW O F FI CE S 1201 Third Avenue, Suite 2200 4844-3023-3452v.8 0051461-001587 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax 2 1 as a third party willingly provides the essential published content, the interactive service 2 provider receives full immunity regardless of the specific editing or selection process." 3 Corbis Corp. v. Amazon.com, Inc., 351 F. Supp. 2d 1090, 1118 (W.D. Wash. 2004) 4 (quoting Carafano v. Metrosplash.Com, Inc., 339 F.3d 1119, 1124 (9th Cir. 2003)).7 5 Courts consistently hold the CDA immunizes Amazon from state-law claims 6 (including negligence) related to harm caused by third-party sales or content. See 7 Oberdorf, 295 F. Supp. 3d at 502-03 (summary judgment on negligence claim because 8 CDA immunized Amazon against liability caused by defective dog leash listed by third- 9 party); Erie Ins. Co. v. Amazon.com Inc., 2018 WL 3046243, at *2-3 (D. Md. Jan. 22, 10 2018) (concluding CDA required grant of summary judgment to Amazon on negligence 11 claims brought in relation to defective product sold by third-party seller on Amazon's 12 marketplace). Courts have also rejected state law claims against Amazon premised on 13 alleged intellectual property infringement where a third party was the source of the 14 infringing content or product. See Lasoff v. Amazon.com Inc., 2017 WL 372948, at *4 15 (W.D. Wash. Jan. 26, 2017) (summary judgment on CDA grounds where plaintiff 16 alleged Amazon promoted sales of counterfeit products by providing links to the 17 products in promotional emails and search results because "Amazon neither created nor 18 developed that information content" (emphasis omitted)), appeal filed, No. 17-35173 19 (9th Cir. Feb. 24, 2017); Corbis, 351 F. Supp. 2d at 1118 (relying on CDA to dismiss 20 state-law claims based on alleged unauthorized display of images because "Amazon did 21 not create or develop the images"). 22 Further, Amazon is immune from claims based on alleged errors or other aspects 23 of content on the product page because "Amazon chooses what information to include on 24 the product detail page based on manufacturer and seller contributions." SOF ¶ 25. 25 7 CDA preemption applies equally to all state law claims based on third-party content. See Lasoff, 2017 WL 372948, at *4 (dismissing state law negligence, unjust enrichment, 26 unfair competition, and tortious interference claims against Amazon based on CDA). MOTION FOR PARTIAL SUMMARY JUDGMENT Davis Wright Tremaine LLP Case No. 2.L17-cv-01806-SPL – 11 L AW O F FI CE S 1201 Third Avenue, Suite 2200 4844-3023-3452v.8 0051461-001587 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax 2 1 (emphasis added). In Parisi v. Sinclair, 774 F. Supp. 2d 310 (D.D.C. 2011), for 2 example, plaintiffs alleged Amazon was liable for defamatory content in the product 3 description for a book. But the court granted Amazon summary judgment on § 230 4 grounds because the allegedly defamatory "material was automatically pulled into 5 Amazon.com's listing of the … book after it was received" from a third party. Id. at 314; 6 see also Erie, 2018 WL 3046243, at *3 (granting summary judgment in part because 7 third-party seller "created the product information that was uploaded to the product detail 8 page"). 9 In short, Amazon's alleged failure to properly "administer" third-party listings 10 and sales on the site "can be boiled down to deciding whether to exclude material third 11 parties seek to post online" and thus is "per[ ]force immune." Barnes v. Yahoo!, 12 Inc., 570 F.3d 1096, 1102-03 (9th Cir. 2009). 13 c. Kangaroo Cannot Assert Claims on Behalf of Others. 14 Kangaroo's negligence allegations duplicate claims P2P made against Amazon in 15 arbitration for breach of contract.8 SOF ¶ 10. In fact, Kangaroo admitted: "Some of the 16 claims in Kangaroo's Complaint belong to its affiliated company, Yagoozon, now known 17 as Pennies2Platinum and will be heard by the American Arbitration Association as 18 required by the contracts between the parties." SOF ¶¶ 11, 8 (testimony of Kangaroo's 19 principal stating "Kangaroo doesn't sell on Amazon so you've never overcharged me 20 [for FBA fees]"). The content of a product detail page is governed by P2P's contract 21 8 In response to Amazon's pre-motion conferral statement, Kangaroo stated: "Kangaroo will dismiss duplicative claims to Pennies2Platinum's claims in arbitration." SOF ¶ 12. 22 In response to Amazon's request for clarification regarding which specific aspects of its claims Kangaroo admits are "duplicative" of P2P's claims, Kangaroo identified claims 23 related to FBA overcharges and the Buy Box, but did not address other claims related to the content or functionality of the detail page. See id. As Kangaroo did not clarify it 24 may with draw claims related to the Buy Box until late in the day on July 13, 2018 (see id.), Amazon briefly addresses claims related to the Buy Box below for the sake of 25 completeness. To the extent Kangaroo declines to withdraw claims related to the content and functionality of product detail pages, the Buy Box, or FBA overcharges, the Court 26 should dismiss those claims as an attempt to assert P2P's contractual grievances. MOTION FOR PARTIAL SUMMARY JUDGMENT Davis Wright Tremaine LLP Case No. 2.L17-cv-01806-SPL – 12 L AW O F FI CE S 1201 Third Avenue, Suite 2200 4844-3023-3452v.8 0051461-001587 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax 2 1 with Amazon. See SOF ¶ 25. Amazon does not owe a duty to Kangaroo to comply with 2 its contractual obligations to P2P, and Kangaroo cannot assert duplicative claims on 3 P2P's behalf. 4 2. Kangaroo's Unjust Enrichment Claim Fails. 5 Kangaroo's unjust enrichment claim is similarly without merit. The unjust 6 enrichment claim in Kangaroo's Complaint is broad, but Kangaroo narrowed the claim in 7 discovery to two theories: (1) Amazon "required Kangaroo's authorized sellers to lower 8 the sales prices of Kangaroos products to retain the PDP buy box," and (2) Amazon 9 "overcharged for storage/fulfillment fees and received these fees from counterfeit sales." 10 SOF ¶ 18c. First, Kangaroo has provided no evidence of damages connected to its unjust 11 enrichment theories, which alone requires dismissal. See SOF ¶ 13. Further, Kangaroo 12 has since abandoned claims related to FBA charges, and its claims related to collection 13 of "fees from counterfeit sales" fail as preempted by the CDA, as explained above. 14 To the extent Kangaroo has not withdrawn its unjust enrichment claim related to 15 the Buy Box, that claim likewise fails as preempted by the CDA. Further "[t]o establish 16 a claim for unjust enrichment, a party must show: (1) an enrichment; (2) an 17 impoverishment; (3) a connection between the enrichment and the impoverishment; (4) 18 the absence of justification for the enrichment and the impoverishment; and (5) the 19 absence of a legal remedy." Trustmark Ins. Co. v. Bank One, Ariz., NA, 202 Ariz. 535, 20 541, 48 P.3d 485 (Ariz. App. 2002). No evidence supports Amazon that was enriched or 21 that Kangaroo was impoverished when nonparty authorized sellers (like P2P) were 22 allegedly forced to lower prices. P2P has a legal remedy to address any such 23 impoverishment, and has pursued that remedy in arbitration. SOF ¶ 10. And finally, 24 Kangaroo cannot show the "absence of a justification" because the evidence shows the 25 Buy Box functioned as authorized by the contract governing Amazon's relationship with 26 MOTION FOR PARTIAL SUMMARY JUDGMENT Davis Wright Tremaine LLP Case No. 2.L17-cv-01806-SPL – 13 L AW O F FI CE S 1201 Third Avenue, Suite 2200 4844-3023-3452v.8 0051461-001587 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax 2 1 third-party sellers (the BSA). See SOF ¶ 27 (sellers compete for the Buy Box and are not 2 guaranteed to receive it). 3 3. Kangaroo's Duplicative Unfair Competition Claim Fails to the Same Extent As Its Lanham Act Claim. 4 Kangaroo acknowledges its state law unfair competition claim is coextensive with 5 its Lanham Act claims. See SOF ¶ 18d; see also eMove Inc. v. SMD Software Inc., 2012 6 WL 1379063, at *7 (D. Ariz. Apr. 20, 2012) (citation omitted) (summary judgment 7 dismissing state unfair competition claim where Lanham Act claim failed because 8 Arizona "unfair competition claims are congruent with Lanham Act claims"). The Court 9 should therefore dismiss the unfair competition claim to the same extent as the Lanham 10 Act claims, as explained above, leaving for trial the claim as it relates to Amazon's sale 11 of certain of the accused products. Further, the Court should dismiss this claim to the 12 extent Kangaroo asserts "rights equivalent to those protected by the federal copyright 13 laws" because the Copyright Act preempts any such state law claim. Kodadek v. MTV 14 Networks, Inc., 152 F.3d 1209, 1213 (9th Cir. 1998). 15 4. Kangaroo's Tortious Interference Claim Fails. 16 The only basis for Kangaroo's tortious interference claim is that Amazon 17 allegedly mismanaged the Buy Box. See SOF ¶18e.9 To the extent not withdrawn, this 18 claim is frivolous. First, Kangaroo has provided no evidence of damages to support this 19 claim. See SOF ¶ 13. Second, as explained above, even accepting the allegations in 20 Kangaroo's Complaint as true (which the Court does not do on summary judgment), the 21 Buy Box functioned as intended and as authorized by P2P's contract with Amazon. 22 9 A claim for tortious interference with business expectancy requires "'(1) [t]he existence 23 of a valid contractual relationship or business expectancy; (2) knowledge of the relationship or expectancy on the part of the interferer; (3) intentional interference 24 inducing or causing a breach or termination of the relationship or expectancy; and (4) resultant damage to the party whose relationship or expectancy has been disrupted.' 25 Any alleged interference must have been both intentional and improper." ThermoLife Int'l, LLC v. Gaspari Nutrition, Inc., 871 F. Supp. 2d 905, 912 (D. Ariz. 2012) (quoting 26 Wagenseller v. Scottsdale Mem'l Hosp., 147 Ariz. 370, 386, 710 P.2d 1025 (1985)). MOTION FOR PARTIAL SUMMARY JUDGMENT Davis Wright Tremaine LLP Case No. 2.L17-cv-01806-SPL – 14 L AW O F FI CE S 1201 Third Avenue, Suite 2200 4844-3023-3452v.8 0051461-001587 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax 2 1 Third, Kangaroo has provided no evidence Amazon "intentionally interfered" with any 2 contract, much less that it did so for an improper purpose. Fourth, Kangaroo cannot 3 vicariously bring a claim for interference with P2P's relationship with its customers. 4 And finally, Kangaroo alleges only general interference with potential customer 5 relationships (of P2P), but this Court has granted summary judgment on tortious 6 interference claims where the plaintiff asserts general interference with customer 7 relations but cannot "identify which alleged interferences caused which specific business 8 relationships or expectancies to be disrupted." eMove, 2012 WL 1379063, at *14. 9 5. The Court Should Reject Kangaroo's Punitive Damages Claim. 10 "In Arizona, punitive damages are awarded only in the most egregious of cases, 11 where it is proved by clear and convincing evidence that the defendant engaged 12 in reprehensible conduct and acted with an evil mind." Craten v. Foster Poultry Farms 13 Inc., 2018 WL 834937, at *4 (D. Ariz. Feb. 13, 2018) (quoting Sec. Title Agency, Inc. v. 14 Pope, 219 Ariz. 480, 498200 P.3d 977 (Ariz. App. 2008)). There is no such evidence 15 here. The Court should dismiss the punitive damages claim. 16 III. CONCLUSION 17 For the reasons above, the Court should dismiss all of Kangaroo's claims, except 18 the Lanham Act and state law unfair competition claims (Counts I, II & IV) based on 19 Amazon's own sale of the accused products. The Court should also dismiss Kangaroo's 20 unsupported claims for willful infringement and punitive damages. This leaves the 21 claims that turn on disputed issues of material fact for trial: Kangaroo's allegation that 22 Amazon's sale of certain accused products violated the Lanham Act. 23 24 25 26 MOTION FOR PARTIAL SUMMARY JUDGMENT Davis Wright Tremaine LLP Case No. 2.L17-cv-01806-SPL – 15 L AW O F FI CE S 1201 Third Avenue, Suite 2200 4844-3023-3452v.8 0051461-001587 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax 2 1 DATED this 13th day of July, 2018. 2 By s/ John Goldmark 3 John A. Goldmark (admitted pro hac vice) Max B. Hensley (admitted pro hac vice) 4 DAVIS WRIGHT TREMAINE LLP 1201 Third Avenue, Suite 2200 5 Seattle, WA 98101-3045 Tel: (206) 622-3150; Fax: (206) 757-7700 6 Email: johngoldmark@dwt.com maxhensley@dwt.com 7 James E. Geringer (admitted pro hac vice) 8 Klarquist Sparkman, LLP 121 SW Salmon Street, Suite 1600 9 Portland, Oregon 97204 Tel: (503) 595-5300; Fax: (503) 595-5301 10 Email: james.geringer@klarquist.com 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 MOTION FOR PARTIAL SUMMARY JUDGMENT Davis Wright Tremaine LLP Case No. 2.L17-cv-01806-SPL – 16 L AW O F FI CE S 1201 Third Avenue, Suite 2200 4844-3023-3452v.8 0051461-001587 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax 2 1 CERTIFICATE OF SERVICE 2 I hereby certify that on July 13, 2018, a true and correct copy of the foregoing 3 document was electronically filed with the Clerk of the United States District Court of 4 the District of Arizona by using the CM/ECF system, and that service will be 5 accomplished by the CM/ECF system to all counsel of record. 6 I further certify that I have mailed a true and correct copy of the forgoing 7 document by United States Mail as well as by email to: 8 Timothy Grimm, Esq. Eadie Rudder, Esq. 9 Carpenter, Hazelwood, Delgado & Bolen, PLC 1400 E. Southern Ave., Suite 400 10 Tempe, AZ 85282 Email: timothy.grimm@carpenterhazlewood.com 11 Email: eadie.rudder@carpenterhazlewood.com Attorneys for Plaintiff 12 13 DATED this 13th day of July, 2018. 14 s/ John Goldmark 15 John Goldmark 16 17 18 19 20 21 22 23 24 25 26 MOTION FOR PARTIAL SUMMARY JUDGMENT Davis Wright Tremaine LLP Case No. 2.L17-cv-01806-SPL – 17 L AW O F FI CE S 1201 Third Avenue, Suite 2200 4844-3023-3452v.8 0051461-001587 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax

Certificate of Conferral

1 DAVIS WRIGHT TREMAINE LLP John A. Goldmark (admitted pro hac vice) 2 Max B. Hensley (admitted pro hac vice) 1201 Third Avenue, Suite 2200 3 Seattle, WA 98101-3045 Tel: (206) 622-3150; Fax: (206) 757-7700 4 Email: johngoldmark@dwt.com maxhensley@dwt.com 5 Attorneys for Defendant 6 7 8 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA 9 10 Kangaroo Manufacturing, Inc., a Florida corporation, No. 2:17-cv-01806-SPL 11 Plaintiff, AMAZON'S CERTIFICATE OF 12 v. CONFERRAL RE: AMAZON'S MOTION FOR PARTIAL 13 Amazon.com, Inc., a Delaware corporation, SUMMARY JUDGMENT 14 Defendant. 15 Pursuant to the Court's Rule 16 Case Management Order (Dkt. 29), Defendant 16 Amazon.com, Inc. certifies that it conferred with Plaintiff by exchanging a two-page 17 statement describing the anticipated motion, including the claims on which summary 18 judgment will be sought and the basis for the motion, on July 10, 2018. Having 19 conferred, counsel for the parties were unable to narrow the issues other than as 20 described in Amazon's Motion for Partial Summary Judgment, Amazon's Statement of 21 Facts in Support of its Motion for Partial Summary Judgment, and the Declaration of 22 John Goldmark in Support of Amazon's Motion for Partial Summary Judgment. 23 DATED this 13th day of July, 2018. 24 25 26 CERTIFICATE OF CONFERRAL - 1 Davis Wright Tremaine LLP Case No. 2:17-cv-01806-SPL L AW O F FI CE S 1201 Third Avenue, Suite 2200 4815-3968-7789v.2 0051461-001587 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax By s/ John Goldmark 1 John A. Goldmark (admitted pro hac vice) Max B. Hensley (admitted pro hac vice) 2 DAVIS WRIGHT TREMAINE LLP 1201 Third Avenue, Suite 2200 3 Seattle, WA 98101-3045 Tel: (206) 622-3150; Fax: (206) 757-7700 Email: johngoldmark@dwt.com 4 maxhensley@dwt.com 5 James E. Geringer (admitted pro hac vice) 6 Klarquist Sparkman, LLP 121 SW Salmon Street, Suite 1600 7 Portland, Oregon 97204 Tel: (503) 595-5300; Fax: (503) 595-5301 8 Email: james.geringer@klarquist.com 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 CERTIFICATE OF CONFERRAL - 2 Davis Wright Tremaine LLP Case No. 2:17-cv-01806-SPL L AW O F FI CE S 1201 Third Avenue, Suite 2200 4815-3968-7789v.2 0051461-001587 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax 1 CERTIFICATE OF SERVICE 2 I hereby certify that on July 13, 2018, a true and correct copy of the foregoing 3 document was electronically filed with the Clerk of the United States District Court of 4 the District of Arizona by using the CM/ECF system, and that service will be 5 accomplished by the CM/ECF system to all counsel of record. 6 I further certify that I have mailed a true and correct copy of the forgoing 7 document by United States Mail as well as by email to: 8 Timothy Grimm, Esq. Eadie Rudder, Esq. 9 Carpenter, Hazelwood, Delgado & Bolen, PLC 1400 E. Southern Ave., Suite 400 10 Tempe, AZ 85282 Email: timothy.grimm@carpenterhazlewood.com Email: eadie.rudder@carpenterhazlewood.com 11 Attorneys for Plaintiff 12 13 DATED this 13th day of July, 2018. 14 s/ John Goldmark 15 John Goldmark 16 17 18 19 20 21 22 23 24 25 26 CERTIFICATE OF CONFERRAL - 3 Davis Wright Tremaine LLP Case No. 2:17-cv-01806-SPL L AW O F FI CE S 1201 Third Avenue, Suite 2200 4815-3968-7789v.2 0051461-001587 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax

STATEMENT OF FACTS re: {{72}} MOTION for Partial Summary Judgment by Defendant Amazon.com Incorporated.

0 1 DAVIS WRIGHT TREMAINE LLP John A. Goldmark (admitted pro hac vice) 2 Max B. Hensley (admitted pro hac vice) 1201 Third Avenue, Suite 2200 3 Seattle, WA 98101-3045 Tel: (206) 622-3150; Fax: (206) 757-7700 4 Email: johngoldmark@dwt.com maxhensley@dwt.com 5 Attorneys for Defendant 6 7 8 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA 9 10 Kangaroo Manufacturing, Inc., a Florida corporation, No. 2:17-cv-01806-SPL 11 Plaintiff, AMAZON'S STATEMENT OF 12 v. FACTS IN SUPPORT OF ITS MOTION FOR PARTIAL 13 Amazon.com, Inc., a Delaware corporation, SUMMARY JUDGMENT 14 Defendant. 15 Defendant Amazon.com, Inc. ("Amazon") submits the following Statement of 16 Facts in support of its Motion for Summary Judgment: 17 A. Facts Related to Amazon, Kangaroo, and Kangaroo's Related Entities 18 1. Amazon operates the Amazon.com website and is the world's largest 19 online retailer, with the mission of being the world's most customer-centric company. 20 Declaration of Ella Irwin ("Irwin Decl.") ¶ 2. 21 2. In addition to selling its own inventory of products directly to consumers, 22 Amazon allows third parties to register as sellers on the Amazon marketplace. Id. ¶ 3. 23 Sellers pay Amazon fees and, in exchange, receive the benefit of reaching customers 24 through the Amazon site. Id. Third-party sellers create their own listings for products 25 they wish to sell, set their own prices, and obtain their own inventory. Id. Multiple 26 third-party sellers, in addition to Amazon, may list the same product for sale from a AMAZON'S STATEMENT OF FACTS IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT - 1 Davis Wright Tremaine LLP Case No. 2.L17-cv-01806-SPL L AW O F FI CE S 1201 Third Avenue, Suite 2200 4813-2566-5644v.5 0051461-001587 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax 0 1 single product page on the site. Id. The product page discloses the identity of the seller, 2 so a customer knows whether it is purchasing from Amazon or a third-party seller. Id. 3 When a customer purchases from a third-party seller, Amazon's role is to process the 4 transaction and collect a referral fee from the seller. Id. Sales by third parties are 5 referred to as "third-party sales," and sales by Amazon are referred to as "Amazon retail 6 sales." Id. 7 3. When a seller registers to sell on Amazon, it agrees to the terms of the 8 Amazon Services Business Solutions Agreement ("BSA" or "the Agreement"), and the 9 policies incorporated by the Agreement. Id. ¶ 4 & Ex. A. 10 4. Third-party sellers may choose to participate in the "Fulfillment by 11 Amazon" ("FBA") program. Id. ¶ 5 & Ex. B. In exchange for fees, the FBA program 12 allows sellers to ship their inventory to be stored at Amazon's fulfillment centers. Id. 13 ¶ 5. The amount of fees charged depends on the weight and dimensions of a product. Id. 14 When a customer orders a product from the seller on Amazon.com, Amazon then 15 packages and ships the seller's product to the customer. Id. Amazon never takes title to 16 the third-party seller's inventory. Id. 17 5. Plaintiff Kangaroo Manufacturing, Inc. ("Kangaroo") manufactures a 18 variety of products, some of which are sold by third party sellers on Amazon. See 19 Compl. ¶ 6; Declaration of John A. Goldmark ("Goldmark Decl.") Ex. A at 5, RFA 16. 20 Kangaroo is owned by Justin Ligeri, who also owns Yagoozon, Inc., a/k/a 21 Pennies2Platinum, Inc., a/k/a Pennies2Platinum Business Solutions, Inc. ("P2P"). See 22 Goldmark Decl. Ex. B (Ligeri Dep. Tr. at 17:7-23); Goldmark Decl. Ex. A at 2, RFAs 1- 23 2. Initially, Kangaroo resold its products solely through P2P on the Amazon 24 marketplace, but now Kangaroo distributes its products through a wide variety of third 25 party resellers. See Compl. ¶ 6. 26 AMAZON'S STATEMENT OF FACTS IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT - 2 Davis Wright Tremaine LLP Case No. 2.L17-cv-01806-SPL L AW O F FI CE S 1201 Third Avenue, Suite 2200 4813-2566-5644v.5 0051461-001587 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax 0 1 6. P2P sold products through Amazon's third-party seller marketplace until 2 Amazon blocked the P2P account in response to conduct including abuse of other sellers 3 and manipulation of product reviews to inflate sales. Irwin Decl. ¶ 6. P2P sold products 4 through Amazon's FBA program. See id.; Compl. ¶ 21. P2P agreed to Amazon's seller 5 agreement, the BSA. Irwin Decl. ¶ 6; Goldmark Decl. Ex. A at 3, RFAs 8-9. 6 7. In agreeing to the BSA, P2P granted Amazon a license to use all images 7 and other material it provided for use on the site: "You grant us a royalty-free, non- 8 exclusive, worldwide, perpetual, irrevocable right and license to use, reproduce, perform, 9 display, distribute, adapt, modify, re-format, create derivative works of, and otherwise 10 commercially or non-commercially exploit in any manner, any and all of Your 11 Materials," defined as "all Technology, Your Trademarks, Content, Your Product 12 information, data, materials, and other items or information provided or made available 13 by you or your Affiliates to Amazon or its Affiliates." Irwin Decl. ¶ 4 & Ex. A §§ 4, 18. 14 8. Kangaroo is not and has never been an Amazon seller. Irwin Decl. ¶ 7; see 15 Goldmark Decl. Ex. B (Ligeri Dep at 47:20-21) ("Kangaroo doesn't sell on Amazon so 16 you've never overcharged me [for FBA fees]."). 17 B. Facts Related to the Nature and Scope of Kangaroo's Claims 18 9. Kangaroo filed this action against Amazon on June 12, 2017. Dkt. 1. One 19 week earlier, P2P separately initiated arbitration against Amazon pursuant to the BSA. 20 See Goldmark Decl. Ex. C. 21 10. P2P's claims in arbitration significantly duplicate and overlap with 22 Kangaroo's claims in this case. Compare Compl. ¶¶ 76-81, with Goldmark Decl. Ex. C 23 at 7-8 (alleging negligence and breach for improper detail page control and edits); 24 compare Compl. ¶ 95, with Goldmark Decl. Ex. C at 8 (alleging negligence and breach 25 for third party sales of counterfeit products); compare Compl. ¶¶ 91-95, with Goldmark 26 AMAZON'S STATEMENT OF FACTS IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT - 3 Davis Wright Tremaine LLP Case No. 2.L17-cv-01806-SPL L AW O F FI CE S 1201 Third Avenue, Suite 2200 4813-2566-5644v.5 0051461-001587 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax 0 1 Decl. Ex. C at 8-9 (alleging negligence and breach of contract for management of Buy 2 Box). 3 11. Kangaroo has admitted: "Some of the claims in Kangaroo's Complaint 4 belong to its affiliated company, Yagoozon, now known as Pennies2Platinum and will be 5 heard by the American Arbitration Association as require by the contracts between the 6 parties." Dkt. 70 at 5 n.3. 7 12. In response to Amazon's pre-motion conferral statement, Kangaroo stated: 8 "Kangaroo will dismiss duplicative claims to Pennies2Platinum's claims in arbitration." 9 Goldmark Decl. ¶ 10. In response to Amazon's request for clarification regarding which 10 specific aspects of its claims Kangaroo admits are "duplicative" of P2P's claims, 11 Kangaroo identified claims "related to the Buy Box and FBA overcharges," but did not 12 address other claims related to the content or functionality of the detail page. See id. 13 Amazon received Kangaroo's clarification late in the day on July 13, 2018. Id. 14 13. This case is part of the Court's Mandatory Initial Discovery Pilot program. 15 See Dkt. 29. In providing a "computation of each category of damages claimed" as part 16 of its mandatory disclosures, Kangaroo identified only damages from alleged trademark 17 and copyright infringement. Goldmark Decl. Ex. D at 12-13. Kangaroo also submitted 18 its expert's report on damages, which covered only damages from alleged trademark and 19 copyright infringement. See id. Ex. E. Kangaroo has not provided a report or disclosed 20 evidence supporting damages from other claims. Goldmark Decl. ¶ 6. 21 14. Kangaroo has narrowed its infringement claims to certain listings of just 22 four products, identified by Amazon Standard Identification Number ("ASIN"): (1) 23 Kangaroo King's Crown, Gold (ASIN B00O17SZ6Y); (2) Kangaroo Adjustable Adult 24 Captain's Yacht Cap, White (ASIN B00O18DY1O); (3) Emoji Universe: 12" Emoji 25 Inflatable Beach Balls, 12-Pack (ASIN B0182WBENE); (4) Emoji Universe Series One: 26 AMAZON'S STATEMENT OF FACTS IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT - 4 Davis Wright Tremaine LLP Case No. 2.L17-cv-01806-SPL L AW O F FI CE S 1201 Third Avenue, Suite 2200 4813-2566-5644v.5 0051461-001587 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax 0 1 Latex Emoji Smiley Face Balloons 72 Pack Yellow (ASIN B01832S51C) ("Accused 2 Products"). Goldmark Decl. Ex. E at 2, Ex. D at 10. 3 15. Kangaroo claims Amazon is responsible for sales of Accused Products 4 made by Amazon or third-party sellers. See id. Ex. E (seeking copyright and trademark 5 damages for sales by third-party sellers). 6 16. Amazon has provided Kangaroo with updated sales data of the Accused 7 Products (AMZ-KANGAROO00002831), which shows total sales of $249,981, of which 8 $90,234 is third-party sales. Irwin Decl. ¶ 14. 9 17. The only evidence Kangaroo has identified of "willful" infringement is 10 Kangaroo's emails with Amazon in which Kangaroo summited notices of claimed 11 infringement—to which Amazon responded and removed the complained of material 12 where appropriate. See Goldmark Decl. Ex. F (Hemani Dep. 99:15-109:7). Kangaroo 13 acknowledged Amazon removed the listings at issue after Kangaroo gave notice by filing 14 suit. Id. (Hemani Dep. 99:3-14). 15 18. The mandatory disclosures provided by Kangaroo responded to the 16 following directive: "For each of your claims or defenses, state the facts relevant to it 17 and the legal theories upon which it is based." Goldmark Decl. Ex. D at 10. In response, 18 Kangaroo narrowed and refined its claims. See id. 19 a. Copyright. Kangaroo clarified that its copyright claim pertains only 20 to the product design and images of the emoji beach balls product. Id. at 11. Kangaroo 21 stated its theory as: "By copying and displaying the copyrighted image and design to sell 22 counterfeits Amazon infringed Kangaroo's copyrights." Id. 23 b. Negligence. Kangaroo asserted the following legal and factual basis 24 for its negligence claim: "Amazon has a duty to exercise reasonable care in 25 administering Kangaroo's PDPs, enabling sales of genuine products and enforcing 26 policies to prevent counterfeit sales. Amazon breach[ed] its duty of care." Id. at 11. AMAZON'S STATEMENT OF FACTS IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT - 5 Davis Wright Tremaine LLP Case No. 2.L17-cv-01806-SPL L AW O F FI CE S 1201 Third Avenue, Suite 2200 4813-2566-5644v.5 0051461-001587 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax 0 1 c. Unjust Enrichment. Kangaroo's mandatory disclosures identify 2 two bases for its unjust enrichment claim: (1) Amazon "required Kangaroo's authorized 3 sellers to lower the sales prices of Kangaroos products to retain the PDP buy box," and 4 (2) Amazon "overcharged for storage/fulfillment fees and received these fees from 5 counterfeit sales." Id. at 12. 6 d. Unfair Competition. Kangaroo's mandatory disclosures 7 acknowledge its unfair competition claim is coextensive with its Lanham Act claims. 8 See Goldmark Decl. Ex. D at 10. 9 e. Tortious Interference. Kangaroo's mandatory disclosures identify 10 Amazon's management of the Buy Box as the sole basis for Kangaroo's tortious 11 interference claim. See id. at 11-12. 12 19. Kangaroo apparently abandoned all claims related to FBA overcharges. 13 See Goldmark Decl. Ex. G at 12 ("Kangaroo has not made any allegations in this case as 14 to overcharges by Amazon for storage or fulfillment" and "Kangaroo does not have any 15 documents" related to overcharges). Kangaroo confirmed withdrawal of these claims by 16 stating it will dismiss claims that are "duplicative" of P2P's arbitration claims. See 17 Goldmark Decl. ¶ 10. 18 C. Facts Related to Amazon's Policies Regarding Intellectual Property Infringement 19 20. Amazon has a process by which any party can report infringement of 20 intellectual property on the Amazon marketplace. Irwin Decl. ¶ 8 & Ex. C. Amazon's 21 "report infringement" page is publically available and can be found here: 22 https://www.amazon.com/report/infringement. Id. This process allows rights owners to 23 submit "notice and take down" requests under the Digital Millennium Copyright Act, 17 24 U.S.C. § 512. See id. 25 26 AMAZON'S STATEMENT OF FACTS IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT - 6 Davis Wright Tremaine LLP Case No. 2.L17-cv-01806-SPL L AW O F FI CE S 1201 Third Avenue, Suite 2200 4813-2566-5644v.5 0051461-001587 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax 0 1 21. Amazon's notice and take down team is a group of Amazon employees 2 dedicated to working with rights owners who allege that third-party sellers or Amazon 3 violated their intellectual property rights. Irwin Decl. ¶ 8. Rights owners may submit 4 their complaints to www.amazon.com/report/infringement or by emailing the notice and 5 take down team directly at notice-dispute@amazon.com, notice@amazon.com, or 6 copyright@amazon.com. Id. 7 22. Kangaroo was aware of this process and submitted various infringement 8 reports, and Amazon responded and removed material when appropriate, usually within 9 days. See Goldmark Decl. Ex. H, at Ex. A. Kangaroo never submitted an infringement 10 report regarding the images used on the detail pages for the Accused Products. See id. 11 23. Amazon "takes product authenticity very seriously." Irwin Decl. ¶ 9 & Ex. 12 D. Amazon's publically available help pages, which are incorporated as part of the seller 13 agreement (the BSA), state: "The sale of counterfeit products, including any products 14 that have been illegally replicated, reproduced, or manufactured, is strictly 15 prohibited. . . . It is each seller's responsibility to source and sell only authentic 16 products." Id.; see also id. Ex. A at 1 (incorporating "Program Policies" such as seller 17 help pages as part of agreement). 18 D. Facts Related to Functionality of the Amazon Marketplace 19 24. Each product sold on Amazon.com has a single "product detail page," 20 which Kangaroo refers to as a "PDP." Irwin Decl. ¶ 10. The detail page is essentially 21 the homepage for a particular product, displaying the product and describing its 22 specifications. Id. Each seller of the product sells it from the same detail page. Id. So if 23 a customer searches for a certain product, Amazon will bring up a single page to display 24 for each of the different sellers' product offerings. Id. Each separate seller's offering of 25 the product is referred to as its "listing." Id. 26 AMAZON'S STATEMENT OF FACTS IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT - 7 Davis Wright Tremaine LLP Case No. 2.L17-cv-01806-SPL L AW O F FI CE S 1201 Third Avenue, Suite 2200 4813-2566-5644v.5 0051461-001587 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax 0 1 25. Amazon's publically available seller help pages explain how the content of 2 a detail page is developed. Id. ¶ 11. Specifically, the help pages provide that "Amazon 3 chooses what information to include on the product detail page based on manufacturer 4 and seller contributions." Id. Ex. E (Product detail pages and offers, available at 5 https://sellercentral.amazon.com/gp/help/external/help- 6 page.html?itemID=51&language=en_US&ref=efph_51_bred_200335450). Amazon 7 "automatically select[s] the information" to display based on a number of factors, 8 including the contributing seller's sales volume and buyer feedback. Id. Ex. F (Correct 9 an Error on a Product Detail Page, available at 10 https://sellercentral.amazon.com/gp/help/external/200335450?language=en- 11 US&ref=mpbc_200202130_cont_200335450). "When multiple sellers sell the same 12 product through a single detail page, we combine the best product data from across 13 various seller submissions to ensure customers get the best experience. The product 14 detail page shows information selected by Amazon to represent the product." Id. There 15 is no guarantee the information provided by any particular seller will show on the detail 16 page. See id. ("Amazon's system has selected another contributor's information" if a 17 seller's contributions do not show). Detail page content is processed and selected from 18 third-party contributions automatically by Amazon's system. Irwin Decl. ¶ 11. 19 26. Amazon did not contribute content to the detail page for any of the 20 Accused Products. Id. ¶ 12. The primary contributor of information for these products 21 was P2P. Id. 22 27. Each detail page contains a clickable "Add to Cart" button, called the "Buy 23 Box," which customers can use to add an item to their shopping carts. Id. ¶ 13 & Ex. G. 24 When multiple sellers sell the same product from a detail page, only one may be awarded 25 the Buy Box, which makes that seller's item "the default on the product page. . . 26 increasing [the seller's] chances of selling that item." See id. ¶ 13 & Ex. G. The product AMAZON'S STATEMENT OF FACTS IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT - 8 Davis Wright Tremaine LLP Case No. 2.L17-cv-01806-SPL L AW O F FI CE S 1201 Third Avenue, Suite 2200 4813-2566-5644v.5 0051461-001587 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax 0 1 detail page will say that it is "sold by" whichever seller is winning the Buy Box at that 2 time. Id. ¶ 13. The listings of other sellers with the product in stock remain available 3 under the link on the detail page that says "New & Used from" or "Other Sellers on 4 Amazon." Id. To ensure the best customer experience, only professional sellers who 5 meet certain performance based requirements are eligible for the Buy Box. Id. If 6 multiple sellers are eligible, then the sellers compete for the Buy Box, which is awarded 7 to the best performing seller. Id. & Ex. H. Amazon may win the Buy Box like any other 8 seller. Id. ¶ 13. 9 DATED this 13th day of July, 2018. 10 By s/ John Goldmark 11 John A. Goldmark (admitted pro hac vice) Max B. Hensley (admitted pro hac vice) 12 DAVIS WRIGHT TREMAINE LLP 1201 Third Avenue, Suite 2200 13 Seattle, WA 98101-3045 Tel: (206) 622-3150; Fax: (206) 757-7700 14 Email: johngoldmark@dwt.com maxhensley@dwt.com 15 James E. Geringer (admitted pro hac vice) 16 Klarquist Sparkman, LLP 121 SW Salmon Street, Suite 1600 17 Portland, Oregon 97204 Tel: (503) 595-5300; Fax: (503) 595-5301 18 Email: james.geringer@klarquist.com 19 20 21 22 23 24 25 26 AMAZON'S STATEMENT OF FACTS IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT - 9 Davis Wright Tremaine LLP Case No. 2.L17-cv-01806-SPL L AW O F FI CE S 1201 Third Avenue, Suite 2200 4813-2566-5644v.5 0051461-001587 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax 0 1 CERTIFICATE OF SERVICE 2 I hereby certify that on July 13, 2018, a true and correct copy of the foregoing 3 document was electronically filed with the Clerk of the United States District Court of 4 the District of Arizona by using the CM/ECF system, and that service will be 5 accomplished by the CM/ECF system to all counsel of record. 6 I further certify that I have mailed a true and correct copy of the forgoing 7 document by United States Mail as well as by email to: 8 Timothy Grimm, Esq. Eadie Rudder, Esq. 9 Carpenter, Hazelwood, Delgado & Bolen, PLC 1400 E. Southern Ave., Suite 400 10 Tempe, AZ 85282 Email: timothy.grimm@carpenterhazlewood.com 11 Email: eadie.rudder@carpenterhazlewood.com Attorneys for Plaintiff 12 13 DATED this 13th day of July, 2018. 14 s/ John Goldmark 15 John Goldmark 16 17 18 19 20 21 22 23 24 25 26 AMAZON'S STATEMENT OF FACTS IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT - 10 Davis Wright Tremaine LLP Case No. 2.L17-cv-01806-SPL L AW O F FI CE S 1201 Third Avenue, Suite 2200 4813-2566-5644v.5 0051461-001587 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax

DECLARATION of John Goldmark in Support of Amazon's Motion for Partial Summary Judgment by Defendant Amazon.com Incorporated.

1 DAVIS WRIGHT TREMAINE LLP John A. Goldmark (admitted pro hac vice) 2 Max B. Hensley (admitted pro hac vice) 1201 Third Avenue, Suite 2200 3 Seattle, WA 98101-3045 Tel: (206) 622-3150; Fax: (206) 757-7700 4 Email: johngoldmark@dwt.com maxhensley@dwt.com 5 Attorneys for Defendant 6 7 8 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA 9 10 Kangaroo Manufacturing, Inc., a Florida corporation, No. 2:17-cv-01806-SPL 11 Plaintiff, DECLARATION OF JOHN A. 12 v. GOLDMARK IN SUPPORT OF AMAZON'S MOTION FOR 13 Amazon.com, Inc., a Delaware corporation, PARTIAL SUMMARY JUDGMENT 14 Defendant. 15 John Goldmark declares as follows: 16 1. I am a partner with Davis Wright Tremaine LLP and counsel for 17 Amazon.com, Inc. ("Amazon") in the above proceeding. I am admitted to practice in 18 Washington. I make this declaration based on personal knowledge and could testify to 19 the facts set forth below. 20 2. Attached as Exhibit A is a true and correct copy of excerpts of Plaintiff 21 Kangaroo Manufacturing, Inc.'s ("Kangaroo") Amended Responses to Amazon's 22 Request for Admissions, dated April 20, 2018. 23 3. Attached as Exhibit B is a true and correct copy of excerpts of excerpts of 24 the 30(b)(6) Deposition of Kangaroo and Personal Deposition of Justin Ligeri, taken on 25 April 20, 2018 in this matter. 26 4. Attached as Exhibit C is a true and correct copy of Demand for Arbitration DECLARATION OF JOHN A. GOLDMARK - 1 Davis Wright Tremaine LLP Case No. 2.L17-cv-01806-SPL L AW O F FI CE S 1201 Third Avenue, Suite 2200 4833-0246-7693v.1 0051461-001587 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax 1 and Claims in Yagoozon, Inc. v. Amazon.com, Inc., AAA Case No. 01-17-0003-2625, 2 dated June 5, 2017. 3 5. Attached as Exhibit D is a true and correct copy of excerpts of Kangaroo's 4 Third Supplemental Disclosure Statement, dated April 30, 2018. 5 6. Attached as Exhibit E is a true and correct copy of the Expert Report of 6 Bryce R. Cook, dated February 15, 2018. Mr. Cook's report opines on damages solely 7 for claims of alleged trademark and copyright infringement. Kangaroo has not provided 8 a report or disclosed evidence supporting damages from other claims. 9 7. Attached as Exhibit F is a true and correct copy of excerpts of the 30(b)(6) 10 Deposition of Kangaroo representative Ace Hemani, taken on April 19, 2018 in this 11 matter. 12 8. Attached as Exhibit G is a true and correct copy of excerpts of Kangaroo's 13 Responses to Amazon's Second Set of Requests for Production, dated April 16, 2018. 14 9. Attached as Exhibit H is a true and correct copy of excerpts of Kangaroo's 15 ESI Disclosures Pursuant to Rule 16 Case Management Order, dated October 3, 2017. 16 10. In response to Amazon's pre-motion conferral statement, Kangaroo stated: 17 "Kangaroo will dismiss duplicative claims to Pennies2Platinum's claims in arbitration." 18 In response to Amazon's request for clarification regarding which specific aspects of its 19 claims Kangaroo admits are "duplicative" of P2P's claims, Kangaroo identified claims 20 "related to the Buy Box and FBA overcharges," but did not address other claims related 21 to the content or functionality of the detail page. Amazon received Kangaroo's 22 clarification late in the day on July 13, 2018. 23 // 24 // 25 // 26 DECLARATION OF JOHN A. GOLDMARK - 2 Davis Wright Tremaine LLP Case No. 2.L17-cv-01806-SPL L AW O F FI CE S 1201 Third Avenue, Suite 2200 4833-0246-7693v.1 0051461-001587 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax 1 I declare under penalty of perjury under the laws of the United States that the 2 foregoing is true and correct to the best of my knowledge and belief. 3 Executed this 13th day of July, 2018, at Seattle, Washington. 4 5 6 _______________________________ John A. Goldmark 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DECLARATION OF JOHN A. GOLDMARK - 3 Davis Wright Tremaine LLP Case No. 2.L17-cv-01806-SPL L AW O F FI CE S 1201 Third Avenue, Suite 2200 4833-0246-7693v.1 0051461-001587 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax

Exhibit A

Exhibit A ATTORNEY'S EYES ONLY/CONFIDENTIAL PROTECTED PURSUANT TO PROPOSED PROTECTIVE ORDER BETWEEN THE PARTIES CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Attorneys at Law 1400 E. Southern Ave., Suite400 2 Tenipe, Arizona 85282-569 I (480) 427-2800, Facsimile (480) 427-280 I 3 min utcentr ies@carpenterhazlewood.com Mark K. Sahl 025729 4 Timothy R. Grimm 019110 Edith ]. Rudder 020650 s KANGAROOM.0003 Attorneys for Plaintiff 6 7 IN THE UNITED ST ATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA 8 KANGAROO MANUFACTURING, INC., Case 2:17-cv-01806-SPL 9 a Florida corporation, 10 PLAINTIFF KANGAROO Plaintiff, MANUFACTURING, INC. 'S 11 AMENDED RESPONSES TO 12 v. DEFENDANT AMAZON.COM, INC.'S REQUESTS FOR ADMISSIONS 13 AMAZON.COM, INC., a Delaware corporation, 14 15 Defendant. 16 Pursuant to the Federal Ru.Jes of Civil Procedure 26 and 36, Amazon Kangaroo 17 Manufacturing, Inc. ("Kangaroo"), by and through undersigned counsel, hereby amends its 18 responses to First Set of Requests for Admission by Amazon.com, Inc. to Kangaroo 19 20 Manufacturing, Inc., as follows: 21 Genera) Objection 22 Kangaroo objects to these Requests for Admissions to the extent any would require 23 (1) the production of documents or the providing of information that is protected by the 24 25 attorney/client privilege, (2) the production of documents or the providing of information 26 ATTORNEY'S EYES ONLY/CONflDENTIAL PRO'mCTED PURSUANT TO PROPOSED PROTECTIVE ORDER BETWEEN THE PARTIES that is the work product of an attorney, or (3) the production of documents or the providing 1 2 of infonnation that is protected from disclosure by any other doctrine or privilege allowed 3 by law. Except as ordered or as pennitted by an order of the Court, Kangaroo will not 4 supply any info11nation or documents protected from discovery by virtue of such doctrines 5 or privileges. Any response made by Kangaroo to any of the Requests for Admissions 6 7 contained herein is not intended as, nor shall in any way be deemed, a waiver of any 8 attorney/client privilege, any work product protection or any other applicable privilege or 9 doctrine. 10 All of the responses herein are based upon information and data in the possession, lI 12 custody and control of the Kangaroo as well as that which can be ascertained, learned or 13 acquired by reasonable inquiry and investigation. Kangaroo reserves the right to 14 supplement discovery as other information is discovered. 15 KANGAROO'S RESPONSES TO AMAZON'S REQUESTS FOR ADMISSION 16 17 REQUEST NO. 1: 18 Kangaroo is owned by Justin Ligeri 19 RESPONSE: Admit. 20 REQUEST NO. 2: 21 22 Yagoozon is owned by Justin Ligeri 23 RESPONSE: Admit. 24 REQUEST NO. 3: 25 Kangaroo and Yagoozon are subject to common control. 26 2 ATTORNEY'S EYES ONLY/CONFIDENTIAL PROTECTED PURSUANT TO PROPOSED PROTECTIVE ORDER BETWEEN THE PARTIES RESPONSE: Objection. Calls for a legal conclusion. 1 2 REQUEST NO. 4: 3 Yagoozon has sold products on Amazon.com. 4 RESPONSE: Admit. 5 REQUEST NO. 5: 6 7 Yagoozon listed Kangaroo Item Numbers 10094 for sale on Amazon.com. 8 RESPONSE: Admit. 9 REQUEST NO. 6: 10 Yagoozon listed Kangaroo Item Numbers 10099 for sale on Amazon.com. 1l 12 RESPONSE: Admit. 13 REQUEST NO. 7: 14 Yagoozon listed Kangaroo Item Numbers 10009 for sale on Amazon.com. 15 RESPONSE: Admit. 16 17 REQUEST NO. 8: 18 Yagoozon conducted its sales activity on Amazon .com subject to the tenns of an 19 agreement between Yagoozon and Amazon. 20 RESPONSE: Admit. 21 22 REQUEST NO. 9: 23 Yagoozon accepted the terms that Amazon .offered by Yagoozon to list and sell 24 products on Amazon.com. 25 RESPONSE: Admit. 26 3 ATTORNEY'S EYES ONLY/CONFIDENTIAL PROTECTED PURSUANT TO PROPOSED PROTECTIVE ORDER BETWEEN THE PARTIES RESPONSE: Objection. Vague and ambiguous as to "restrict". Without waiving the 1 2 foregoing objections, Kangaroo answers as follows: Kangaroo informs certain vendors that 3 certain products are exclusive and such vendors must agree they will not sell on 4 Amazon.com as a condition of the purchase of such inventory. 5 REQUEST NO. 15: 6 7 Kangaroo has sought to restrict which companies sell Kangaroo Item Number I 0009 8 on Amazon.com. 9 RESPONSE: Object to extent "restrict" is vague and ambiguous. Without waiving the 10 foregoing objections, Kangaroo answers as follows: Kangaroo infonns certain vendors that I1 12 certain products are exclusive and such vendors must agree they will not sell on 13 Amazon.com in order to obtain inventory. 14 REQUEST NO. 16: 15 Kangaroo has sought to restrict which companies sell Kangaroo Item Number 10013 16 17 on Amazon.com. 18 RESPONSE: Objection. Vague and ambiguous as to "restrict". Without waiving the 19 foregoing objections, Kangaroo answers as follows: Kangaroo informs certain vendors that 20 certain products are exclusive and such vendors must agree they will not sell on 21 22 Amazon.com in order to obtain inventory. 23 REQUEST NO. 17: 24 The diameter of each ball in Kangaroo Item Number 10099 is about 12 inches before 25 inflation. 26 5 ATTORNEY'S EYES ONLY/CONFIDENTIAL PROTECTED PURSUANT TO PROPOSED PROTECTIVE ORDER BETWEEN THE PARTIES REQUEST NO, 24: 1 2 Amazon has not sent Kangaroo any charges for the storage or fulfillment of Kangaroo 3 inventory. 4 RESPONSE: Admit. 5 201 6 DATED: April }0, 2018. 7 CARPENTEl ' ~AZLEWOOD, DELGADO & BOLEN LLP [U,~ ' IZJJ__.!J~/ 8 9 By: 10 J imothy R. Gri1 Edith I. Rudder 11 1400 East Southern Avenue, Suite 400 Tempe, Arizona 85282 12 Attorneys for Plaintiff 13 CERTIFICATE OF SERVICE 14 15 I hereby certify that on April W, 2018, a true and correct copy of the foregoing document 1 was mailed by United States Mail, first-class postage prepaid, sealed, and addressed to: 16 17 James Edward Geringer Klawquist, Sparkman, L.L.P. 18 1 World Trade Ctr. 121 SW Salmon St., Ste. 1600 19 Portland, Oregon 97204 20 Attorneys.for Defendant Amazon.com 21 John A. Goldmark Max B. Hensley 22 Davis Wright Tremaine 1201 Third Ave., Ste. 2200 23 Seattle, WA 89101-3045 24 Attorneysfor Defendant Amazon.com 25 26 8 ATTORNEY'S EYES ONLY/CONFIDENTIAL PROTECTED PURSUANT TO PROPOSED PROTECTIVE ORDER BETWEEN Tl IE PARTIES VERIFICATION OF DAYID FOLLETT 2 I, David Follett, being duly sworn, deposes and says that I am authorized to answer on 3 behalf of Defendant and Kangaroo Manufacturing, Inc. in this action, that I have read the foregoing 4 Amended Responses to the Requests for Admissions and know their contents, and that the factual information provided in the answers is true to the best of my knowledge, infom1ation, and belief. 5 Dated this _ _ day of April, 2018. 6 7 David Follett, Executive Director, Kangaroo Mfg., Inc. 8 9 IO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 9

Exhibit B

Exhibit B Atkinson-Baker Court Reporters www.depo.com 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE DISTRICT OF ARIZONA 3 4 Kangaroo Manufacturing,) No. Inc.,) CV-17-1806-PHX-SPL 5) Plaintiff,) 6) v.) 7) Amazon.com, Inc.,) 8) Defendant.) 9 _______________________________) 10 11 12 13 14 VIDEOTAPED 30(b)(6) DEPOSITION OF KANGAROO MANUFACTURING, INC. AND PERSONAL DEPOSITION OF 15 (JUSTIN LIGERI) 16 April 20, 2018 9:19 a.m. 17 Tempe, Arizona 18 19 20 21 22 23 AtkinsonBaker, Inc. Court Reporters Prepared by: 24 (800) 288-3376 Marcella Daughtry, RPR www.depo.com Arizona CR No. 50623 25 FILE NO. AC03BDF 30(b)(6): Justin Ligeri April 20, 2018 Atkinson-Baker Court Reporters www.depo.com 1 INDEX 1 QUESTIONS INSTRUCTED NOT TO ANSWER 2 WITNESS PAGE 3 JUSTIN LIGERI 2 PAGE LINE 4 Examination by Mr. Geringer 8 126 25 Examination by Mr. Goldmark 240 5 3 127 9 6 128 6 7 4 130 11 INDEX TO EXHIBITS 8 5 Description Page 6 REQUESTED INFORMATION 9 Exhibit 35 Confidential deposition of Justin 103 7 PAGE LINE 10 Ligeri 10/12/17 38 21 AMZ-KANGAROO00002232 to 2566 11 8 Exhibit 36 Deposition of Justin Ligeri 103 9 12 10/19/17 10 AMZ-KANGAROO00002567 to 2830 13 11 Exhibit 37 E-mail chain from Justin Nicola 103 12 14 to Robert Berman 8/7/13 "Re: Final Letter to Mr. Berman" 13 15 AMZ-KANGAROO00002230 to 2231 14 16 Exhibit 38 Letter To Whom It May Concern 132 with attachments from Michael 15 17 Adams 8/14/17 16 KANGAROOM0003 - 004445 to 4483 18 17 Exhibit 39 Joint Stipulation for Entry 132 18 19 of Judgment 20 Exhibit 40 Order Granting Joint Stipulation 132 19 21 Exhibit 41 E-mail chain from Hutch Costello 159 20 to Rob Coutard 4/20/17 21 22 "Subject: FW: I may need a favor" KANGAROOM0003 - 004715 to 4716 22 23 23 Exhibit 42 Motion for Leave to File Second 162 24 Amended Complaint 24 AMZ-KANGAROO00003061 to 3119 25 25 Page 2 Page 4 1 INDEX TO EXHIBITS, CONT'D 1 VIDEOTAPED 30(B)(6) DEPOSITION OF 2 Description Page 2 KANGAROO MANUFACTURING, INC. AND PERSONAL DEPOSITION OF 3 Exhibit 43 Plaintiff Kangaroo Manufacturing 170 3 (JUSTIN LIGERI) was taken on April 20, 2018, at the Responses to Defendant's First 4 offices of Carpenter, Hazlewood, Delgado, & Bolen, LLP, 4 Set of Requests for Production 5 1400 East Southern Avenue, Tempe, Arizona, commencing 5 Exhibit 44 Criminal docket 0531CR003803 183 6 at the hour of 9:19 a.m., before Marcella Daughtry, a October 21, 2005 7 Registered Professional Reporter and Arizona Certified 6 AMZ-KANGAROO00002960 to 2971 7 Exhibit 45 SouthCoast Today article 189 8 Reporter, in and for the State of Arizona. October 27, 2006 9 8 AMZ-KANGAROO00001070 to 1071 10 APPEARANCES: 9 Exhibit 46 Criminal docket 0631CR000661 198 11 dated 3/14/2006 12 For the Plaintiff: 10 AMZ-KANGAROO00002957 to 2959 13 Carpenter, Hazlewood, Delgado & Bolen, LLP 11 Exhibit 47 Criminal docket 0331CR003441 207 MR. TIMOTHY R. GRIMM dated April 30, 2004 14 1400 East Southern Avenue, Suite 400 12 AMZ-KANGAROO00002951 to 2956 Tempe, Arizona 85282 13 Exhibit 48 Criminal information and counts 210 AMZ-KANGAROO00002976 to 3038 15 480.427.2845 14 tim@carpenterhazlewood.com Exhibit 49 Judgment and disposition 218 16 15 17 For the Defendant: Exhibit 50 Plaintiff Kangaroo's Responses to 223 18 Klarquist Sparkman, LLP 16 Defendant Amazon.com's Second Set MR. JAMES E. GERINGER of Requests for Production 17 19 121 SW Salmon Street, Suite 1600 Portland, Oregon 97204 Exhibit 51 Plaintiff Kangaroo's Responses to 225 18 Defendant Amazon.com's Second Set 20 503.595.5300 of Interrogatories james.geringer@klarquist.com 19 21 Exhibit 52 Ranked1Pro conference packet 227 And 20 AMZ-KANGAROO00001084 to 1100 22 21 Exhibit 53 Complaint 237 Davis Wright Tremaine, LLP KANGAROOM0003 - 004497 to 4507 23 MR. JOHN GOLDMARK 22 1201 Third Avenue, Suite 2200 Exhibit 54 Amazon lending registration 306 24 Seattle, Washington 98101 23 information 24 Exhibit 55 Declaration of Justin Ligeri 319 206.622.3150 25 25 johngoldmark@dwt.com Page 3 Page 5 2 (Pages 2 to 5) 30(b)(6): Justin Ligeri April 20, 2018 Atkinson-Baker Court Reporters www.depo.com 1 Also Present: 1 JUSTIN LIGERI, 2 Jonathan Williams, videographer 2 called as a witness herein, having been first duly Julia Williams, in-house counsel Kangaroo 3 sworn by the shorthand reporter to speak the truth and 3 4 nothing but the truth, was examined and testified as 4 5 follows: 5 6 6 7 EXAMINATION 7 8 BY MR. GERINGER: 09:20:33 8 9 Q Good morning, Mr. Ligeri. Am I pronouncing 09:20:33 9 10 that correctly? 09:20:44 10 11 A Yeah. Good morning, Jim. 09:20:45 11 12 Q I want to show you a couple of documents, one 09:20:47 12 13 document that has previously been marked as Exhibit 13. 09:20:50 13 14 It should be on the top of the stack that you see. 09:20:53 14 15 A Okay. 09:20:55 15 16 16 Q That's a deposition notice, so-called 30(b)(6) 09:20:55 17 17 notice. I'd like you to refer to topics 3, 4, and 11, 09:20:59 18 18 and tell me if you're here to testify for Kangaroo on 09:21:06 19 19 those topics today. 09:21:11 20 20 A Where are they marked, Jim? 09:21:12 21 21 Q There's a schedule with numbered paragraphs. 09:21:13 22 22 So on Exhibit 13, page 3 of 5. 09:21:16 23 23 A Yeah, I'm prepared to testify on all this. 09:21:25 24 24 Q Okay. So that's topics 3, 4, and 11 of 09:21:27 25 25 Exhibit 13 you'll testify for Amazon -- sorry, you will 09:21:31 Page 6 Page 8 1 THE VIDEOGRAPHER: Good morning. I am 09:19:23 1 testify for Kangaroo as the corporate designee? 09:21:34 2 Jonathan Williams, your videographer, and I represent 09:19:24 2 A Sure. 09:21:37 3 Atkinson-Baker, Inc. in Glendale, California. I am a 09:19:27 3 Q Okay. Much shorter case if you could testify 09:21:39 4 notary public, and I am not financially interested in 09:19:31 4 for Amazon. 09:21:41 5 this action, nor am I a relative or employee of any 09:19:33 5 And you understand you are also here noticed 09:21:42 6 attorney or any of the parties. 09:19:37 6 on your individual capacity? 09:21:45 7 The date is April 20th, 2018, and the time is 09:19:39 7 A I didn't not know that, and if you are going 09:21:47 8 9:19 a.m. This deposition is taking place at 1400 East 09:19:42 8 to ask me an individual question, then just let me know 09:21:49 9 Southern Avenue, Suite 400, Tempe, Arizona. The case 09:19:47 9 that that's what you are doing. 09:21:51 10 number is CV-17-1806-PHX-SPL, entitled Kangaroo 09:19:52 10 Q Sure. Your counsel, of course, is free to 09:21:54 11 Manufacturing, Inc. versus Amazon.com, Inc. 09:20:01 11 object if he feels that a question is outside the scope 09:22:10 12 The deponent is Justin Ligeri. The deponent 09:20:04 12 of the 30(b)(6). 09:22:12 13 is being taken by counsel for the defendant. Your 09:20:09 13 A Okay. 09:22:13 14 court reporter is Marcie Daughtry from Atkinson-Baker. 09:20:12 14 Q And that's what we'll be guided by. Generally 09:22:14 15 Counsel will now, please, introduce 09:20:15 15 speaking, if you have individual knowledge, if you have 09:22:18 16 themselves, after which the court reporter will swear 09:20:17 16 personal knowledge in response to a question, I would 09:22:20 17 in the witness. 09:20:19 17 ask that you give it -- 09:22:22 18 MR. GRIMM: Good morning. Tim Grimm for the 09:20:20 18 A Sure. 09:22:23 19 plaintiff. 09:20:22 19 Q -- and let your counsel and I discuss whether 09:22:24 20 MR. GERINGER: Jim Geringer for Amazon. 09:20:23 20 or not it is in the capacity as 30(b)(6) or an 09:22:26 21 MR. GOLDMARK: And John Goldmark for Amazon. 09:20:27 21 individual. That's for the efficiency and convenience 09:22:28 22 09:20:33 22 that you only sit here once. 09:22:31 23 23 A Sure. 09:22:33 24 24 Q Okay. Are you still teaching a seminar about 09:22:34 25 25 Amazon? 09:22:39 Page 7 Page 9 3 (Pages 6 to 9) 30(b)(6): Justin Ligeri April 20, 2018 Atkinson-Baker Court Reporters www.depo.com 1 A Correct. 09:27:10 1 little invoice or something, and then -- I don't know 09:29:22 2 Q -- for 200, right? 09:27:10 2 the accounting details of it, but it was pretty much a 09:29:25 3 A It was about $210.66, I think, that I received 09:27:10 3 handoff. 09:29:28 4 in two weeks on Amazon. 09:27:14 4 Q Does Yagoozon still have any existing 09:29:28 5 Q What year was that that your father loaned you 09:27:16 5 liabilities? 09:29:36 6 the money? 09:27:20 6 A I believe there's liabilities -- or there's 09:29:37 7 A November 10th, 2010 he gave me the $40. Five 09:27:21 7 claims against Yagoozon. I don't know that I agree 09:29:42 8 days after I started an Amazon account, and I think up 09:27:25 8 with them, but... 09:29:44 9 until then I did less than $20 with something I could 09:27:28 9 Q Okay. What claims are there against Yagoozon? 09:29:45 10 find around my house. 09:27:30 10 A There's a claim from Rubie's Costume Company. 09:29:47 11 Q What name was used to start that Amazon 09:27:31 11 I believe there's a claim, very small one from a 09:29:51 12 account? 09:27:34 12 company called Panini. That's all I can think of off 09:29:54 13 A I believe it was just done as a sole 09:27:35 13 the top of my head. There may be something else. 09:29:58 14 proprietor. I think my seller name was Justin Nicola 09:27:37 14 Q Is there a claim by GAME as well? 09:30:02 15 Enterprises. I'm not even sure, though. I was looking 09:27:41 15 A That's not against Yagoozon. 09:30:04 16 for a name, and it was a friend of mine that came up 09:27:43 16 Q Okay. What assets does Yagoozon have at the 09:30:06 17 with Yagoozon before the end of the year, and then, of 09:27:46 17 current time? 09:30:11 18 course, I -- I renamed it that in 2011. 09:27:49 18 A Nothing. 09:30:11 19 Q And incorporated Yagoozon around that time? 09:27:52 19 Q Does Yagoozon have any employees at the 09:30:12 20 A Later in 2012 I incorporated Yagoozon. It 09:27:55 20 current time? 09:30:16 21 just was a seller name for the first period of time. 09:27:58 21 A No. 09:30:16 22 Q And just so the record is clear, you 09:28:02 22 Q Are you the sole owner of Yagoozon? 09:30:17 23 transitioned your -- strike that. 09:28:04 23 A I don't even know if it exists. I know we 09:30:19 24 You sold through Yagoozon until when on 09:28:10 24 were doing a final tax return, so I don't know if 09:30:21 25 Amazon? 09:28:14 25 that's been completed yet, but it's pretty much 09:30:23 Page 14 Page 16 1 A The seller account was under my own name, and 09:28:14 1 dissolved. 09:30:26 2 I sold on that account. I didn't think it was going to 09:28:18 2 Q But that final tax return is in process? 09:30:26 3 become a business. I mean, I was just trying to 09:28:22 3 A I'm not sure if it's been completed or in 09:30:28 4 survive a couple months. And as I realized it was 09:28:24 4 process. I don't know. I have so many employees that 09:30:30 5 going to become a business, I went down and 09:28:28 5 do different things, and I just try to do what I do, 09:30:33 6 incorporated an LLC calling, Winning Costumes. 09:28:30 6 you know. And if I need an answer, I make a call. 09:30:35 7 And I operated under Winning Costumes 09:28:33 7 Q Were you the sole owner of Yagoozon? 09:30:37 8 throughout 2011 and 2012, and then I became the 09:28:35 8 A Not the whole time. I was, though, at the 09:30:39 9 corporation Yagoozon, Inc. sometime in the summer of 09:28:38 9 beginning, and I was at the end. 09:30:41 10 2012 and transferred assets and liabilities of Winning 09:28:41 10 Q Who was co-owner in the middle? 09:30:43 11 Costumes to Yagoozon Inc. then. 09:28:45 11 A At one time my brother had a percentage of the 09:30:45 12 Q And how long did you use Yagoozon, Inc. as 09:28:46 12 company, and when I fired my brother, we reversed that 09:30:48 13 your vehicle for sales on Amazon? 09:28:50 13 through a payment to him. 09:30:53 14 A Well, I mean, between Yagoozon, Inc. and one 09:28:52 14 Q And what was your brother's name? 09:30:54 15 short period of time, something called the Yagoozon 09:28:55 15 A Benjamin Ligeri. 09:30:58 16 Group I put on Amazon, but the combination of those was 09:28:57 16 Q So other than Benjamin Ligeri's ownership for 09:30:59 17 from that moment in 2012 all the way until quarter one 09:29:01 17 a time, did anyone else besides yourself have any 09:31:05 18 ended in 2016. 09:29:04 18 ownership at Yagoozon? 09:31:08 19 Q When did you start using P2P as a vehicle for 09:29:06 19 A No, sir. 09:31:09 20 sales on Amazon? 09:29:11 20 Q How about Pennies2Platinum? Have you been the 09:31:10 21 A Right after that. 09:29:12 21 sole owner of Pennies2Platinum for its existence? 09:31:13 22 Q Was it kind of a baton handoff, or was it -- 09:29:13 22 A Of this corporation of Pennies, yes, 09:31:16 23 A It was a handoff. Yeah, we sold off all the 09:29:15 23 absolutely. 09:31:18 24 rest of Yagoozon's inventory. There were a couple like 09:29:17 24 Q A prior incorporation of Pennies? 09:31:18 25 units left that we just, you know, swapped for like a 09:29:20 25 A There was one in Florida which I -- I 09:31:19 Page 15 Page 17 5 (Pages 14 to 17) 30(b)(6): Justin Ligeri April 20, 2018 Atkinson-Baker Court Reporters www.depo.com 1 sellers, drastically leads them to -- into a certain 09:58:49 1 A No, you are the one who took it there, Jim. 10:00:46 2 business model and then changes things on everybody 09:58:52 2 There's no issue. 10:00:48 3 knowing that they are that important in the Internet, 09:58:55 3 Q I see. 10:00:49 4 that they have a responsibility. 09:58:57 4 A Amazon has never taken a dime from Kangaroo in 10:00:50 5 When you are half of all the sales in the 09:58:58 5 storage and -- and anything else. Now, my sellers 10:00:52 6 world in a specific area, like if you sold half the 09:59:01 6 you've hurt. You know, it comes back to me, but 10:00:54 7 clothing in the world, you have a responsibility to 09:59:04 7 Kangaroo has never sold on Amazon. You've never given 10:00:56 8 consumers and to the businesspeople. You are not just 09:59:05 8 me a dime, nor can you take a dime from me. 10:00:59 9 a Web site; you are half the Internet, you know. So 09:59:08 9 Q But Kangaroo -- strike that. 10:01:01 10 there's a responsibility when you change something 09:59:11 10 Is Kangaroo seeking damages in this suit for 10:01:03 11 major with no notification to people. And that's the 09:59:13 11 alleged overcharging of storage and fulfillment fees to 10:01:06 12 legal part of your overbilling. Then there's just the 09:59:16 12 Amazon sellers? 10:01:09 13 accidental mistake. 09:59:19 13 A I think there was a thing where it mentioned, 10:01:10 14 So, for example, let's say one of these opens 09:59:20 14 you know, that -- something that happened to other 10:01:12 15 up, not a counterfeit but the real one, and now the 09:59:22 15 sellers. I have to defer to my attorney on this, 10:01:14 16 tape measure goes along, and this is now oversized, and 09:59:25 16 because I don't believe we're pursuing that claim. I 10:01:16 17 you accidentally bill this product as oversized. 09:59:29 17 don't know, Tim, about that, but Julia mentioned it 10:01:20 18 You've never accidentally taken an oversized item 09:59:31 18 last night in our -- in our debriefing together. And I 10:01:24 19 that's broken, you know, and shipped half of it to the 09:59:34 19 was not aware we were pursuing a claim on that. If we 10:01:26 20 consumer and accidentally billed me undersized. 09:59:35 20 are, then we have to talk before I answer the question. 10:01:28 21 That's my point. You know, from -- this is 09:59:37 21 Q Do you believe Amazon overcharged 10:01:30 22 not a Kangaroo answer. From a 09:59:39 22 Pennies2Platinum for storage and fulfillment fees? 10:01:39 23 Yagoozon/Pennies2Platinum answer, you have never made a 09:59:41 23 A I believe Amazon overcharges every one of the 10:01:43 24 mistake in my favor in the history of your company, but 09:59:44 24 three-and-a-half-million sellers on their Web site. 10:01:45 25 you've made many mistakes in your favor. 09:59:47 25 Q All right. Does Yagoozon have a formal 10:01:48 Page 46 Page 48 1 Q And these mistakes you are referring to relate 09:59:50 1 office, or did it? 10:01:53 2 to shipping and storage charges? 09:59:53 2 A It did. 10:01:54 3 A All the money that Amazon really makes that 09:59:54 3 Q Where was Yagoozon's office? 10:01:56 4 they change is the shipping and storage. The 09:59:57 4 A Which one? What time? It moved a lot. 10:01:59 5 commission is flat. They can't make it an error there. 10:00:00 5 Q Please -- from Yagoozon inception's, please 10:02:01 6 What are they going to say? It's 15 percent. Oh, we 10:00:02 6 tell me what offices they maintained. 10:02:05 7 are billing 20 by accident this month. No, they'd get 10:00:05 7 A Okay. So when it became a corporation in the 10:02:07 8 caught. 10:00:08 8 summer of 2012, it was at 380 Jefferson Boulevard. I 10:02:08 9 So everything that they do because it's 10:00:08 9 believe that was unit G, but I'm not sure. 10:02:12 10 intentional and malicious has to be through shipping 10:00:09 10 Q Who else occupied that space? 10:02:14 11 because that's where they get most of their money. 10:00:12 11 A What do you mean who occupied it? Just 10:02:16 12 Most sellers now claim that Amazon takes at least 50 10:00:14 12 Yagoozon. 10:02:18 13 percent to 60 percent of their gross revenue. Well, 10:00:18 13 Q Tell you what, yeah, let's just walk through 10:02:19 14 the commission is only 15 to 17 percent in all 10:00:19 14 the entire Yagoozon list. So summer of 2012, Yagoozon 10:02:20 15 categories. So all that money comes from fulfillment 10:00:21 15 had facilities where? 10:02:23 16 services. 10:00:24 16 A In -- at 380 Jefferson Boulevard in Warwick, 10:02:24 17 Q What evidence can you point me to to support 10:00:25 17 Rhode Island. And then it operated there until 10:02:30 18 the claim that Amazon has overcharged Kangaroo for 10:00:31 18 April or March, I believe, of 2013. I rented a place 10:02:32 19 storage or fulfillment centers? 10:00:34 19 in Florida at Highway 27. I believe it was 1843 US 10:02:39 20 A Kangaroo doesn't sell on Amazon so you've 10:00:36 20 Highway 27 and operated Yagoozon out of that location 10:02:44 21 never overcharged me. I was answering, as I said, from 10:00:39 21 until the end of 2013 and early 2014. 10:02:47 22 Yagoo and Pennies because you've been asking me 10:00:41 22 Then my other corporation, Dragonfly Real 10:02:50 23 questions about those other companies. 10:00:42 23 Estate, purchased a building and leased the building to 10:02:53 24 Q All right. So in this suit then, there is no 10:00:44 24 Yagoozon for the rest of 2014 into 2015 until October, 10:02:57 25 claim by Kangaroo -- 10:00:45 25 then moved out of that building. And then in -- I 10:03:04 Page 47 Page 49 13 (Pages 46 to 49) 30(b)(6): Justin Ligeri April 20, 2018 Atkinson-Baker Court Reporters www.depo.com 1 A Absolutely. 05:24:40 1 much for your time and patience. 05:26:50 2 Q Okay. So in other words, once Kangaroo sells 05:24:41 2 A You're welcome. 05:26:51 3 the product to a customer, it -- it kind of can't 05:24:44 3 MR. GOLDMARK: Tim, subject to just the 05:26:51 4 control it after that point? 05:24:46 4 discussion we had earlier about your directing the 05:26:53 5 A Of course. 05:24:47 5 witness not to answer certain questions, we disagree 05:26:56 6 Q What's the entity that's bringing the claims 05:24:50 6 with. 05:26:59 7 in arbitration against Amazon? 05:24:59 7 MR. GRIMM: Right. 05:26:59 8 A It's Yagoozon and also Pennies2Platinum. 05:25:01 8 MR. GOLDMARK: So we would maintain our rights 05:27:00 9 Q So it's both entities? 05:25:03 9 to pursue that line of questioning should we need to 05:27:03 10 A Yeah, because they were both victims as a 05:25:05 10 down the road. 05:27:05 11 seller. 05:25:07 11 I think that's the only loose end we've got 05:27:06 12 Q Are you personally bringing claims, too, in 05:25:08 12 left. I'm looking up at our list there. I know that 05:27:08 13 that case? 05:25:10 13 Jim will send you guys -- I think there's a couple of 05:27:12 14 A I'm not aware if I -- I don't believe so. 05:25:10 14 requests for documents, some transcripts, it sounds 05:27:14 15 Q But you're the sole owner of Pennies2Platinum? 05:25:14 15 like, Julia, that you guys just got. 05:27:17 16 A Correct. 05:25:20 16 MS. WILLIAMS: Well, it's -- we have the 05:27:18 17 Q And the sole owner of Yagoozon? 05:25:20 17 issue -- yeah, we'll produce something with respect to 05:27:19 18 A Yeah. 05:25:22 18 that, but it's -- it's designated confidential, like 05:27:20 19 Q Okay. Where is Pennies2Platinum incorporated? 05:25:23 19 the entire transcript is, so we'll have to go back and 05:27:24 20 A Delaware. 05:25:31 20 look at that, and we will give you the front page, and, 05:27:27 21 Q Where is its principal place of business? 05:25:32 21 you know, I guess produce the rest of it. 05:27:29 22 A I know you think it's Florida, but unless it 05:25:39 22 MR. GOLDMARK: We can sign a confidentiality 05:27:31 23 was -- its principal -- it doesn't -- 05:25:40 23 protective order. We can sign the protective order. 05:27:35 24 Q I'd rather get it accurate. Is it not 05:25:41 24 MS. WILLIAMS: We'll have -- we'll have to 05:27:40 25 Delaware? 05:25:46 25 discuss that. 05:27:41 Page 322 Page 324 1 MS. WILLIAMS: No, it's not Delaware. 05:25:46 1 MR. GOLDMARK: Okay. 05:27:41 2 THE WITNESS: It said it in another document 05:25:48 2 MR. GRIMM: It's your call, yeah. 05:27:41 3 Delaware corporation, I'm just telling you, that I've 05:25:49 3 MR. GOLDMARK: Yeah. 05:27:43 4 read today. So at one point it was. I don't know if 05:25:50 4 MR. GRIMM: All right. Well, I don't have any 05:27:43 5 it is now. But at one point it was. When I originally 05:25:53 5 follow-up. We will read and sign. 05:27:45 6 incorporated Pennies2Platinum, I incorporated in 05:25:56 6 THE VIDEOGRAPHER: This concludes the 05:27:47 7 Delaware. I'm a hundred percent sure of that. If it's 05:25:56 7 deposition of Justin Ligeri. We are off the record at 05:27:48 8 Florida now, that's fine. 05:26:00 8 5:27 p.m. 05:27:51 9 MS. WILLIAMS: Yagoozon you originally 05:26:01 9 THE COURT REPORTER: Did you guys want the 10 incorporated in Delaware. 05:26:01 10 same copy as last time? 11 THE WITNESS: Also Pennies. 05:26:01 11 MR. GRIMM: Yes. 12 MS. WILLIAMS: It's in Florida. I'm pretty -- 05:26:02 12 MR. GOLDMARK: Yes. 13 I'm 99 percent sure it was in Florida. 05:26:04 13 (The deposition concluded at 5:27 p.m.) 14 THE WITNESS: There was one in Florida, but 05:26:04 14 15 I'm -- I'm not sure. Anyway -- 05:26:08 15 16 Q BY MR. GOLDMARK: I appreciated earlier when 05:26:08 16 17 you clarified the 1.25 million that I was mistaken 05:26:09 17 18 about. So -- so it's either Florida or Delaware, it 05:26:12 18 19 sounds like? 05:26:15 19 20 A Yes. 05:26:16 20 21 Q Okay. I'm just going to look over my notes 05:26:16 21 22 for a moment. 05:26:27 22 23 A Sure. 05:26:28 23 24 Q We are almost there. 05:26:28 24 25 I think we're done. Justin, thank you very 05:26:47 25 Page 323 Page 325 82 (Pages 322 to 325) 30(b)(6): Justin Ligeri April 20, 2018 Atkinson-Baker Court Reporters www.depo.com 1 STATE OF ARIZONA)) ss: 2 COUNTY OF MARICOPA) 3 4 I HEREBY CERTIFY that the foregoing deposition 5 was taken before me; that I was then and there a 6 Registered Professional Reporter, and an Arizona 7 Certified Reporter, Certificate No. 50623, in and for 8 the State of Arizona; that the witness before 9 testifying was duly sworn by me to testify to the whole 10 truth; that the questions propounded by counsel and the 11 answers of the witness thereto were taken down by me in 12 shorthand and thereafter transcribed under my 13 direction; and that the foregoing pages contain a full, 14 true, and accurate transcript of all deposition 15 testimony and proceedings had, all done to the best of 16 my skill and ability. 17 I FURTHER CERTIFY that I am in no way related 18 to nor employed by any of the parties hereto, nor am I 19 in any way interested in the outcome. 20 Signature requested. 21 DATED at Phoenix, Arizona, this 27th day of 22 April, 2018. 23 ________________________________ 24 MARCELLA L. DAUGHTRY, RPR Certified Reporter 25 Certificate No. 50623 Page 326 83 (Page 326) 30(b)(6): Justin Ligeri April 20, 2018

Exhibit C

5 Exhibit C e 5 AMERICAN ARBITRATION ASSOCIATION' DEMAND FOR ARBITRATION CONSUMER ARBITRATION RULES Complete this form to start arbitration under an arbitration agreement in a contract. 1. Which party is sending in the filing documents? (check one) IL! Consumer D Business 2. Briefly explain the dispute: See attached. 3. Specify the amount of money in dispute, if any: $ Over $2 million, plus interest. Exact damages cannot be determined without Amazon sale 1records. 4. State any other relief you are seeking: Attorney Fees Ill Interest Ill Arbitration Costs Ill Other; explain: Awarding such other and further relief deemed proper. 5. Identify the requested city and state for the hearing if an in-person hearing is held: Phoenix, AZ 6. Please provide contact information for both the Consumer and the Business. Attach additional sheets or forms as needed. Consumer: Business: Name: Pennies2Platinum, Inc., f/k/a Yagoozon, lnc. Name: Amazon Inc., Amazon Services, LLC and Amazon Payments, Inc. Address: Address: Justin Ligeri CSC Services of Nevada, Inc. 401 W. Baseline Road, Suite 108 2215-B Renaissance Drive City: Tempe State: AZ IZip Code: 85283 City: Las Vegas State: NV · 1 Zip Code: 89119 Telephone: Fax: Telephone: Fax: Email Address: jnicola@kangaroomfg.com Email Address: Consumer's Representative {if known): Business' Representative {if known): Name: Ray K. Harris Name: Firm: Fennemore Craig, P.C. Firm: Address: 2394 E. Camelback Road, Suite 600 Address: City: Phoenix State: AZ I Zip Code: 85016 City: State: IZip Code: Telephone: (602) 916-5414 Fax: Telephone: Fax: Email Address: rharris@fclaw.com Email Address: Date: June 5, 2017 7. Send a copy of this completed form to the AAA together with: charge card authorization form for the filing fee to 877-304-8457. To file by email send the filing documents and a check or a completed charge card A clear, legible copy of the contract containing the parties' agreement authorization form for the filing fee to CaseFiling@adr.org. Charge card to arbitrate disputes; authorization forms are available at www.adr.org/Services/Forms. To file The proper filing fee (filing fee information can be found in the on-line via AAA Web File, visit www.adr.org and click on File & Manage a Case and follow directions to register. To avoid the creation of duplicate Costs of Arbitration section of the Consumer Arbitration Rules); and filings, the AAA requests that the filing documents and payment be A copy of the court order, if arbitration is court-ordered. submitted together. When filing electronically no hard copies are required. 8. Send a copy of the completed form and any attachments to all parties and retain a copy of the form for your records. Pursuant to Section 1284.3 of the California Code of Civil Procedure, consumers with a gross monthly income of less than 300% of the federal poverty guidelines are entitled to a waiver of arbitration fees and costs, exclusive of arbitrator fees. Cases may be filed with the AAA by mail, facsimile, email, or on-line. This law applies to all consumer agreements subject to the California Arbitration To file by mail send the initial filing documents and the filing fee to: Act, and to all consumer arbitrations conducted in California. If you believe that AAA Case Filing Services, 1101 Laurel Oak Road, Suite 100, Voorhees, NJ you meet these requirements, you must submit to a completed Affidavit for 08043. To file via fax send the initial filing documents and a completed Waiver of Fees, available on our website. American Arbitration Association, Case Filing Services, 1101 Laurel Oak Road, Suite 100, Voorhees, NJ 08043 AAA WebFile: https://www.adr.org I AAA Customer Service 1-800-778-7879 5 1 FENNEMORE CRAIG, P.C. Ray K. Harris (No. 007408) 2 2394 East Camelback Road, Suite 600 Phoenix, AZ 85016-3429 3 Tele~hone: (602) 916-5000 Email: aabdo fclaw.com 4 Email: rharris fclaw.com 5 Attorneys for Yagoozon, Inc. 6 7 8 AMERICAN ARBITRATION ASSOCIATION 9 10 Yagoozon, Inc, a Rhode Island No. 11 Corporation; 12 Plaintiff, CLAIMS 13 v. 14 Amazon, Inc., a Delaware corporation 15 Defendant. 16 17 Yagoozon, Inc. ("Y agoozon") alleges: 18 THE PARTIES 19 1. Plaintiff Yagoozon is a Rhode Island corporation with its principal place of 20 business in Florida. 21 2. Defendant Amazon, Inc. ("Amazon") is a Delaware corporation with its 22 principal place of business in Washington. 23 JURISDICTION AND VENUE 24 3. The attached provision in the Amazon Services Business Solutions 25 Agreement provides for arbitration. 26 FENNEMORE CRAIG, P.C. PllOENIX 12951522.1/045374.000 I 5 1 BACKGROUND 2 4. Plaintiff Yagoozon was formed in 2012 to purchase and resell products on 3 Amazon. Y agoozon now operates as Pennies2Platinum. At various times Yagoozon has 4 been authorized to sell under other business names on Amazon. Y agoozon makes these 5 claims on behalf Yagoozon, its successor Pennies2Platinum, and the authorized business 6 names used on Amazon. 7 5. On information and belief, Defendant Amazon is the world's largest 8, internet-based retailer by total sales and market capitalization. 9 6. Amazon offers a marketplace platform where over two million vendors 10 advertise and sell products to consumers. 11 Product Sales on Amazon 12 Product Detail Page ("PDP") 13 7. Each product for sale on Amazon is listed on a Product Detail Page 14 ("PDP"). The PDP includes a product image, price, description, customer reviews, order 15 options, and a link to view offers to sell. 16 8. Multiple sellers (including Amazon itself) can offer a product for sale on the 17 same PDP. 18 9. Each PDP includes an Amazon Standard Identification Number ("ASIN") 19 for the product-a unique ten character alpha numeric product identifier assigned by 20 Amazon. 21 Universal Product Code ("UPC") 22 10. In addition to the ASIN, Amazon also requires the PDP to include a 23 Universal Product Code ("UPC") or an alternative industry standard product identifier. 24 "Fulfillment by Amazon" (FBA) 25 11. Amazon offers a "Fulfillment by Amazon" (FBA) service allowing retailers 26 to ship their product through Amazon fulfillment centers. FENNEMORE CRAIG, P.C. P110P.NIX 12951522.11045374.0001 -2- 5 1 12. Amazon has fulfillment centers in Arizona, and, on information and belief, 2 sale of unauthorized products on Yagoozon PDPs have occurred as a result of the Amazon 3 FBA service. 4 13. A seller using the FBA service can choose to have its products tracked using 5 the UPC code. 6 14. On information and belief, products tracked by UPC code are comingled 7 with inventory of the same products from other sellers at the Amazon fulfillment centers. 8 15. On information and belief, Amazon is able to identify the original seller, 9 source and owner of the products using the FBA service. 10 Amazon Storage/Fulfillment Fees 11 16. For sellers using the FBA service, the product dimensions and weight are 12 captured for storage, fulfillment and billing purposes by Amazon. 13 17. Amazon has overcharged Plaintiff for storage and fulfillment fees. 14 18. After deducting proper storage and fulfillment fees, Amazon is obligated to 15 remit the balance of the purchase price (-if received by Amazon) to the seller. 16 17 Amazon Regulation of Sales 18 Authorized Sales - Buy Box 19 19. If more than one seller lists a product for sale under a particular PDP, the 20 seller with the best performance metrics and longest Amazon sales history is the default 21 seller. A "buy box" appears next to the default seller's listing allowing customers to add 22 items to their shopping cart with a single click. 23 20. Control of the buy box as the default seller increases the sales of the default 24 seller on the PDP. 25 21. Upon information and belief, Amazon can reassign the buy box if Amazon 26 deems the default seller's price "excessive". This reassignment forces the seller to reduce FENNEMORE CRAIG, P.C. PllOF.NIX 12951522.1/045374.0001 -3- 5 1 the price or lose the benefit of the buy box. 2 22. Counterfeiters often list their product on the PDP at a lower price than 3 genuine goods. In some cases, Amazon has allowed a counterfeiter to be assigned the 4 "buy box" and become the default seller for the PDP. 5 23. Amazon itself has listed products on the PDP at prices above the price 6 Amazon imposes on the default seller to retain the buy box. 7 24. Plaintiff has been damaged by improper administration of the buy box by 8 Amazon. 9 Authorized Sales - Source Rating 10 25. Bad reviews for the counterfeit products sold through the Amazon platform 11 can erode the price of genuine goods and damage the reputation of legitimate retailers. 12 26. By reassigning the UPC, Amazon can reallocate control of the PDP and 13 damage the reputation of legitimate retailers. 14 27. Amazon has interfered with sales of Plaintiff's authorized products and 15 allowed sales of counterfeit products resulting in erosion of Plaintiff's source ratings and 16 reputation. 17 28. Plaintiff has been damaged by improper administration of the source ratings 18 by Amazon. 19 Counterfeit Sales 20 29. Amazon is aware counterfeiters are exploiting the Amazon platform to sell 21 unauthorized products. Unauthorized sales on Amazon have included products sold FBA 22 and products sold by Amazon itself. 23 30. Amazon has implemented infringement reporting procedures under which 24 Amazon may remove product listings for counterfeit product or remove access to an entire 25 PDP. 26 31. Amazon has continued to sell counterfeit goods on a PDP after removing or FENNEMORE CRAIG, P.C. PllOENIX 12951522.1/045374.0001 -4- 5 1 disabling authorized sales by Plaintiff. 2 32. The FBA service and Amazon regulation of sales allow Amazon to control 3 the PDP, product listing, price, and delivery. 4 33. Amazon has exercised control of the PDP, product listing, price, and 5 delivery in ways that damage Plaintiff and benefit Amazon. 6 7 COUNT I 8 Breach of Contract (Payment) 9 34. Plaintiff incorporates by reference the allegations of paragraphs 1 through 10 33 above. 11 35. During 2014, Yagoozon transacted all of its product sales through the 12 Amazon platform. 13 36. From January 10 to October 17, 2014, Yagoozon sold, net of returns, at least 14 $20,659,614 of goods on Amazon. 15 3 7. During the same time period, Amazon accounted to Y agoozon for sales of 16 not more than $18,745,921, a shortfall of at least $1,913,693 from actual sales. 17 38. Amazon agreed to fully account to Yagoozon for sales on the Amazon 18 platform. 19 39. Amazon materially breached its contractual obligation to account for sales 20 on the Amazon platform. 21 40. As a direct and foreseeable result of the breach, Yagoozon was damaged in 22 the amount of at least $1,913,693, plus interest. 23 WHEREFORE, Yagoozon prays for judgment: 24 A. Awarding actual damages of at least $1,913,693, plus interest. 25 B. Awarding costs and attorneys' fees in an amount to be determined. 26 C. Awarding such other and further relief deemed proper. FENNEMORE CRAIG, P.C. PllOENIX 12951522.1/045374.0001 -5- 5 1 COUNT II 2 Breach of Contract (Disney Frozen Merchandise) 3 41. Plaintiff incorporates by reference the allegations of paragraphs 1 through 4 40 above. 5 42. Yagoozon was an authorized reseller of Disney Frozen merchandise. 6 43. Yagoozon created a PDP for the purpose of selling authorized Disney 7 Frozen merchandise. 8 44. Amazon blocked sales of the authorized merchandise on the Yagoozon PDP 9 despite notice that Yagoozon was an authorized reseller and despite several years of an 10 established business relationship between Yagoozon and Amazon. 11 45. Yagoozon repeatedly provided confirmation from the manufacturers that the 12 Disney Frozen merchandise was authorized; indeed, in some cases Yagoozon was the 13 only authorized reseller. Amazon improperly refused to reinstate the product listings and 14 refused to release or return the merchandise. 15 46. Amazon materially breached both the express contractual obligation and the 16 implied covenant of good faith and fair dealing by denying Yagoozon the intended benefit 17 of the bargain. 18 4 7. As a direct and foreseeable result of the material breach by Amazon, 19 Yagoozon was damaged, including lost sales, damage to reputation and a reduced source 20 rating. 21 WHEREFORE, Yagoozon prays for judgment: 22 A. Awarding actual damages in an amount to be determined. 23 B. Awarding costs and attorneys' fees in an amount to be determined. 24 C. Awarding such other and further relief deemed proper. 25 26 FENNEMORE CRAIG, P.C. PllOF.NIX 12951522.1/045374.0001 -6- 5 1 COUNT III 2 Breach of Contract (Unauthorized Sales) 3 48. Plaintiff incorporates by reference the allegations paragraphs 1 through 47 4 above. 5 49. As required by Amazon, Plaintiff provided the UPC code for Plaintiffs 6 products on each Amazon PDP. 7 50. Amazon improperly administered the PDP and/or the related UPC code 8 resulting in repeated incidents of unauthorized sales damaging Plaintiffs. 9 51. Amazon has blocked access to or removed product listings for genuine 10 goods on Yagoozon PDPs over 100 times, only to reinstate the product listing later after 11 damages were incurred. 12 Yagoozon Black Top Hat 13 52. For example, Yagoozon sold black top hats and other apparel items 14 manufactured by Kangaroo Manufacturing Inc. Amazon removed the Y agoozon product 15 listings and allowed counterfeit product to be sold on the Yagoozon PDP using the 16 Yagoozon UPC code. 17 53. Amazon breached both the express contractual obligation and the implied 18 covenant of good faith and fair dealing by restricting authorized sales by Y agoozon and 19 denying Y agoozon the intended benefit of the bargain. 20 54. As a direct and foreseeable result of the material breach by Amazon, 21 Yagoozon was damaged, including lost sales, damage to reputation and a reduced source 22 rating. 23 Kangaroo Emoji Beach Ball 24 55. For example, Yagoozon sells an emoji beach ball. This item 1s 25 manufactured by Kangaroo Manufacturing Inc. under UPC 856082006009. 26 56. Amazon reassigned the PDP created by Yagoozon to a competitor, Rhode FENNEMORE CRAIG, P.C. PllOENIX 12951522.1/045374.0001 -7- 5 1 Island Novelty Company ("RINCO") by changing the UPC code on the PDP page to the 2 RINCO UPC code. 3 57. Both Kangaroo and RINCO advised Amazon, in writing, of the error in the 4 UPC code. Amazon refused to correct the error, thereby materially breaching its contract 5 obligation to Y agoozon. 6 58. Amazon itself then sold counterfeit product on the Yagoozon PDP. 7 59. Counterfeit sales by Amazon and others resulted in erosion of Yagoozon's 8 sales, source rating and reputation. 9 60. Amazon's sale of counterfeit product was a material breach of the 10 agreement and the implied obligation of good faith and fair dealing denying Kangaroo the 11 intended benefit of the bargain. 12 WHEREFORE, Yagoozon prays for judgment: 13 A. A warding actual damages in an amount to be determined. 14 B. Awarding specific performance of the applicable Amazon policies. 15 C. Awarding costs and attorneys' fees in an amount to be determined. 16 D. Awarding such other and further relief deemed proper. 17 18 COUNT IV 19 Breach of Contract (Buy Box) 20 61. Plaintiff incorporates by reference the allegations paragraphs 1 through 60 21 above. 22 62. Yagoozon was a successful and high performing seller with a long Amazon 23 sales history. Under Amazon policy, Yagoozon was assigned the "buy box" for numerous 24 PDPs. Control of the buy box as the default seller increased Yagoozon's sales. 25 63. Amazon improperly prevented sales by asserting the Yagoozon price was 26 "excessive" and reassigning the buy box. These reassignments force Yagoozon to reduce FENNEMORE CRAIG, P.C. PHOENIX 12951522.1/045374.0001 -8- 5 1 the price or lose the substantial benefit of the buy box. 2 64. For example, Amazon has repeatedly reassigned the buy box for a flamingo 3 pool float sold by Yagoozon. 4 65. Amazon itself listed a flamingo pool float product on the Yagoozon PDP at 5 prices above the price Amazon deemed "excessive." Yagoozon was repeatedly required 6 to lower the price below Amazon's price to retain the buy box. 7 66. In some cases, Amazon has allowed a counterfeiter to be assigned the buy 8 box and become the default seller for a Yagoozon PDP. 9 67. Yagoozon has been damaged by improper administration of the buy box by 10 Amazon. Amazon itself has sold competing or infringing products while preventing sales 11 by Yagoozon. 12 68. Unauthorized and counterfeit sales by Amazon and others resulted m 13 erosion ofYagoozon's sales, source ratings and reputation. 14 WHEREFORE, Y agoozon prays for judgment: 15 E. Awarding actual damages in an amount to be determined. 16 F. Awarding specific performance of the applicable Amazon policies. 17 G. Awarding costs and attorneys' fees in an amount to be determined. 18 H. Awarding such other and further relief deemed proper. 19 20 COUNTY 21 Breach of Contract (Unauthorized Fees) 22 69. Plaintiff incorporates by reference the allegations paragraphs 1 through 68 23 above 24 70. By usmg incorrect dimensions and weights, Amazon has overcharged 25 Yagoozon for storage and fulfillment fees under the FBA service. 26 71. As a direct and foreseeable result of these material breaches, Yagoozon was FENNEMORE CRAIG, P.C. PllOENIX 1295 I 522.1/045374.0001 -9- 5 1 damaged. 2 WHEREFORE, Plaintiff prays for judgment: 3 I. A warding actual damages in an amount to be determined. 4 J. Awarding specific performance of the applicable Amazon policies. 5 K. A warding costs and attorneys' fees in an amount to be determined. 6 L. Awarding such other and further relief deemed proper. 7 8 COUNT VI 9 Unjust Enrichment 10 72. Plaintiff incorporates by reference the allegations of paragraphs 1 through 11 71 above. 12 73. Y agoozon conferred unintended benefits on Amazon which in equity and 13 good conscience Amazon should not retain. 14 74. Amazon has been unjustly enriched by the conduct alleged, including: 15 a. withholding payments due to Yagoozon; 16 b. overcharging for storage and fulfillment fees; 17 c. selling unauthorized and counterfeit products on Yagoozon PDPs, 18 including Disney Frozen merchandise, the emoji beach balls, the 19 flamingo pool float, and other PDPs; 20 d. miss-assigning PDP control and diverting sales from Y agoozon while 21 continuing to receive fees on the unauthorized sales; and 22 e. enabling sales of counterfeit products on the Y agoozon PDPs and 23 continuing to receive fees on the unauthorized sales. 24 WHEREFORE, Plaintiffs prays for judgment: 25 A. Awarding restitution damages. 26 B. Awarding punitive damages. FENNEMORE CRAIG, P.C. PHOENIX 12951522.1/045374.0001 - 10 - 5 1 C. Awarding costs of suit. 2 D. Awarding such other and further relief deemed proper. 3 4 COUNT VII 5 (Unfair Competition) 6 7 5. Plaintiff incorporates by reference the allegations of paragraphs 1 through 7 74 above. 8 76. By enabling unauthorized sales on the PDP pages created by Yagoozon, 9 Amazon diverted sales and associated revenue from Yagoozon to competitors or 10 counterfeiters. 11 77. Amazon earned fees related to the sales by unauthorized competitors. 12 78. Amazon itself actually sold counterfeit emoji beach balls, the flamingo pool 13 float and other merchandise in direct competition with Y agoozon. 14 79. Amazon's conduct trades on Yagoozon's goodwill and constitutes unfair 15 competition. 16 80. Amazon's conduct is contrary to honest practice in commercial matters and 17 constitutes palming off and unfair competition. 18 81. Amazon's conduct is the proximate cause of actual damages measured by 19 Amazon's profits and Yagoozon's losses. 20 82. Amazon's conduct is willful and intentional warranting punitive damages. 21 WHEREFORE, Plaintiff prays for judgment: 22 A. A warding actual damages. 23 B. Awarding punitive damages. 24 C. Awarding costs of suit. 25 D. Awarding such other and further relief deemed proper. 26 FENNEMORE CRAIG, P.C. PllOP..NIX 12951522.1 /045374.000 I - 11 - 5 1 COUNT VIII 2 Tortious Interference with Prospective Contract 3 83. Plaintiff incorporates by reference the allegations of paragraphs 1 through 4 82 above. 5 84. Yagoozon had an established history of successful retail sales on the 6 Amazon platform and a reasonable expectation of future business relationships arising on 7 the Amazon platform. 8 85. Yagoozon was one of the most successful retailers on the Amazon platform. 9 Amazon knew ofYagoozon's business expectancy. 10 86. Amazon improperly and purposefully interfered with Yagoozon's business 11 expectancies by: 12 a. blocking authorized sales; 13 b. altering the UPC codes and PDP control to enable sales of 14 unauthorized products; 15 c. fulfilling purchase orders intended for Yagoozon through FBA with 16 product from competitors or counterfeiters; and 17 d. actually selling counterfeit product in competition with Y agoozon. 18 87. Amazon damaged Yagoozon's reputation and impermissibly interfered with 19 Yagoozon's retail sales. 20 88. Amazon has no privilege or justification for such interference and Amazon's 21 conduct is wrongful. 22 89. Amazon's conduct warrants an award of punitive damages. 23 90. Amazon's actions are the proximate cause of Yagoozon's damages. 24 WHEREFORE, Yagoozon prays for judgment: 25 A. Awarding actual damages. 26 B. Awarding punitive damages. FENNEMORE CRAIG, P.C. P110ENIX 12951522.11045374.000 I - 12 -, 5 1 C. Awarding costs and attorneys' fees in an amount to be determined. 2 D. A warding such other and further relief deemed proper. 3 DATED this 5th day of June, 2017. 4 FENNEMORE CRAIG, P.C. 5 6 By: Isl Ray K. Harris 7 Ray K. Harris Attorneys for Plaintiff 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 FENNEMORE CRAIG, P.C. PHOENIX 12951522.1/045374.0001 - 13 -

Exhibit D

Exhibit D 1 CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Attorneys at Law 2 1400 E. Southern Ave., Suite 400 Tempe, Arizona 85282-5691 3 (480) 427-2800, Facsimile (480) 427-2801 minuteentries@carpenterhazlewood.com 4 Mark K. Sahl 025729 Timothy R. Grimm 019110 5 Edith I. Rudder 020650 KANGAROOM.0003 6 7 Attorneys for Plaintiff 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE DISTRICT OF ARIZONA 10 11 Kangaroo Manufacturing, Inc., a Florida Case 2:17-cv-01806-SPL 12 corporation, 13 Plaintiff, PLAINTIFF'S THIRD 14 SUPPLEMENTAL DISCLOSURE v. STATEMENT 15 Amazon.com, Inc., a Delaware corporation, 16 17 Defendant. 18 19 NOTE: This Supplemental Disclosure Statement and its contents represent the product 20 of Defendants' investigation to date. This is a preliminary disclosure only and is not 21 intended to represent Defendants' complete presentation of facts, information, etc., concerning this case. Defendants reserve the right to supplement this Disclosure 22 Statement, including any and all sections thereto at any time as may be necessary or 23 appropriate based upon information developed during the course of litigation. Defendants believe the information stated in this initial Disclosure Statement to be 24 accurate at the present time based upon information and belief. If any part of this 25 Disclosure Statement is read to a jury, fairness would require that this preliminary statement also be read indicating that at the time this document was filed, Defendants 26 had only limited access to information. 27 28 1 1 The Association reserves the right to supplement this Disclosure Statement as the litigation continues. Additions are set forth in boldface type; deleted text is 2 struck through. 3 4 Plaintiff Kangaroo Manufacturing, Inc. ("Kangaroo") hereby serves its 5 Mandatory 6 7 Initial Discovery Program responses ("Responses") to Defendant Amazon.com, Inc. 8 ("Amazon"). 9 DEFINITIONS 10 11 Unless otherwise indicated, the following definitions are applicable to the 12 Responses contained herein: 13 1. The terms "and" and "or" shall be construed conjunctively or 14 disjunctively, 15 16 whichever makes the request more inclusive. 17 2. The terms "you," "You," "your," and "Your" mean and refer to 18 Amazon.com, Inc., as well as its employees, agents, representatives, attorneys, and any 19 20 persons purporting to act on its behalf. 21 3. The terms "relate to," "related to," "relating to," "involve," "involved," 22 and 23 "involving" refer to the state of being mutually or reciprocally interested, an aspect or 24 25 quality that connects two or more things or parts as being or belonging together, 26 connected, joined, or linked together logically for whatever reason, and shall be 27 construed to encompass the past, present, or future tenses of the terms "discuss," 28 2 1 4. For each of your claims or defenses, state the facts relevant to it and the 2 3 legal theories upon which it is based. 4 RESPONSE: The relevant facts and legal theories to Kangaroo's claims are as 5 follows. 6 Trademark Infringement and Unfair Competition. Kangaroo manufactures 7 products sold on Amazon.com by Kangaroo's authorized resellers. KANGAROO is a 8 9 registered US trademark used on Amazon Product Detail Pages ("PDPs") to sell 10 Kangaroo products. Authorized resellers and others, including Amazon itself, can offer 11 a Kangaroo product for sale on the PDP. 12 Direct Infringement. Amazon is selling counterfeits of at least 4 products: 13 14 • Emoji Universe Smiley Face Balloons, ASIN B01832S51C 15 • 12" Emoji Inflatable Beach Balls, ASIN B0182WBENE 16 • Kangaroo King's Crown, ASIN B00O17SZ6Y 17 18 • Kangaroo Adjustable Adult Captain's Yacht Cap, ASIN B00O18DY1O 19 20 These sales constitute trademark infringement under 15 U.S.C. § 1114, use of 21 counterfeit trademarks under 15 U.S.C. §1116(d)(1)(B), and unfair competition under 22 15 U.S.C. § 1125(a)(1)(A). 23 24 Indirect Infringement. Amazon failed to prevent counterfeiters from selling on 25 the Kangaroo PDPs despite its ability to do so. Indeed, Amazon has removed authorized 26 sellers in response to notice of counterfeiting from Kangaroo. Amazon derives a 27 financial benefit by selling Amazon Fulfillment Services to counterfeiters. 28 10 1 Copyright Infringement. Kangaroo owns copyrights in the product design and 2 images of the Emoji Beach Balls. By copying and displaying the copyrighted image and 3 design to sell counterfeits Amazon infringed Kangaroo's copyrights. 17 U.S.C. § 501. 4 5 Negligence. Amazon has a duty to exercise reasonable care in administering 6 Kangaroo's PDPs, enabling sales of genuine products and enforcing policies to prevent 7 counterfeit sales. Amazon breach its duty of care. As a result Kangaroo was damaged. 8 9 For example, Amazon reassigned Kangaroo's Emoji Beach Balls PDP to a 10 competitor, Rhode Island Novelty Company ("RINCO"). Kangaroo and RINCO 11 separately advised Amazon in writing of this error, which Amazon did not promptly 12 correct. This resulted in significant lost sales to Kangaroo and customer confusion. 13 14 Amazon breached its duty of reasonable care by failing to remove counterfeiters 15 and preventing sales by Kangaroo authorized resellers at the same time counterfeiters, 16 including Amazon itself, were selling popular products. This damaged Kangaroo. 17 18 Amazon has a policy of reimbursing purchasers who receive counterfeit product. 19 To keep counterfeits off the market, Kangaroo purchased counterfeit product and 20 sought reimbursement from Amazon. Upon information and belief, Amazon itself 21 resold the counterfeit products on Kangaroo's PDP. This conduct damaged Kangaroo. 22 23 Tortious Interference with Prospective Contract. PDPs feature a "buy box" that 24 allows a customer to add items to their shopping cart or complete the purchase with a 25 single click. Under Amazon policy, the seller with the best performance metrics and 26 27 longest Amazon sales history is the default buy box seller. Controlling the buy box as 28 the default seller increases the sales of the default seller on the PDP. Amazon allowed 11 1 counterfeiters to control the Buy Box on Kangaroo PDPs, damaging Kangaroo in the 2 form of lost sales and injury to reputation (reducing Kangaroo's source rating). 3 Unjust Enrichment. Upon information and belief, Amazon can reassign the buy 4 5 box if Amazon deems the default seller's price "excessive." This reassignment forces 6 the seller to reduce the price or lose the benefit of the buy box. Amazon repeatedly 7 required Kangaroo's authorized sellers to lower the sales price of Kangaroo's products 8 9 to retain the PDP buy box. Amazon did not lower its own prices on popular products 10 despite requiring Kangaroo's authorized sellers to lower their prices. Amazon also 11 overcharged for storage/fulfillment fees and received these fees from counterfeit sales. 12 5. Provide a computation of each category of damages claimed by you, 13 14 and a description of the documents or other evidentiary material on which it is based, 15 including materials bearing on the nature and extent of the injuries suffered. You may 16 produce the documents or other evidentiary materials with your response instead of 17 18 describing them. 19 RESPONSE: Kangaroo's computation of damages is as follows: 20 • Kangaroo incurred $196,042.43 in lost sales due to credit memo refunds 21 22 to Kangaroo's buyers, triggered by the artificially low price of Kangaroo 23 products on Amazon caused by Amazon's counterfeit product sales. See 24 Exhibit F. 25 • Kangaroo incurred $23,922.36 purchasing counterfeit product from 26 27 Amazon to remove it from the market, as indicated in Exhibit G. 28 • Kangaroo suffered an unknown quantity of damages due to Amazon's 12 1 profits from counterfeit goods; this amount is currently known only to 2 Amazon. 3 • Kangaroo reserves the right to supplement and claim additional damages 4 5 after further discovery is conducted. 6 6. Specifically identify and describe any insurance or other agreement 7 under which an insurance business or other person or entity may be liable to satisfy all 8 9 or part of a possible judgment in the action or to indemnify or reimburse a party for 10 payments made by the party to satisfy the judgment. You may produce a copy of the 11 agreement with your response instead of describing it. 12 RESPONSE: Kangaroo does not know of particular insurance or other 13 14 agreements by which Amazon would satisfy a judgment in this action. 15 RESPECTFULLY SUBMITTED this 30th day of April, 2018. 16 17 CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP 18 19 By: 20 Timothy R. Grimm 21 Edith I. Rudder 1400 East Southern Avenue, Suite 400 22 Tempe, Arizona 85282 23 Attorneys for Plaintiff 24 25 26 27 28 13 1 CERTIFICATE OF SERVICE 2 I further certify that on April 30, 2018, the foregoing document and all 3 documents disclosed herewith was served via electronic means only to the following: 4 5 James Edward Geringer Klawquist, Sparkman, L.L.P. 6 1 World Trade Ctr. 7 121 SW Salmon St., Ste. 1600 Portland, Oregon 97204 8 james.geringer@klarquist.com 9 Attorneys for Defendant Amazon.com 10 John A. Goldmark 11 Max B. Hensley Davis Wright Tremaine 12 1201 Third Ave., Ste. 2200 Seattle, WA 89101-3045 13 johngoldmark@dwt.com 14 Attorneys for Defendant Amazon.com 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14

Exhibit E

3 Exhibit E 3 Kangaroo Manufacturing, Inc. v. Amazon.com, Inc. United States District Court, District of Arizona Case No. CV-17-01806-PHX-SPL February 15, 2018 Expert Report of Bryce R. Cook Confidential – Subject to Protective Order Navigant Consulting, Inc. 201 East Washington Street, Suite 1700 Phoenix, Arizona 85004-2245 602.257.0075 www.navigant.com 3 EXPERT REPORT Contents I. Introduction and Scope of Work ........................................................................................... 1 II. Background .......................................................................................................................... 2 III. Analysis of Copyright and Trademark Infringement Remedies ............................................. 3 A. Kangaroo's Actual Damages Resulting from the Alleged Infringement .......................... 3 B. Defendants' Profits Attributable to the Alleged Infringement .......................................... 5 Attachment A – Documents Considered Attachment B – CV of Bryce R. Cook i 3 EXPERT REPORT Confidential – Subject to Protective Order I. Introduction and Scope of Work Navigant Consulting was retained by counsel for Kangaroo Manufacturing, Inc. ("Kangaroo") to analyze damages resulting from Defendant's alleged infringement of Kangaroo's trademarked and copyrighted materials. In developing my opinions, I have reviewed the pleadings filed in this matter, documents produced by the parties, and documents I obtained in the course of performing my research and analysis. A list of the documents I considered is included in Attachment A. The opinions and analyses presented in this report are based on currently available information. If new information becomes available that is relevant to my analysis or opinions, I may supplement this report. If this matter proceeds to trial, selected pages of the documents and information considered may be used as exhibits. In addition, I may prepare graphical or illustrative exhibits based on the contents of this report, the documents and information considered, and on my analysis of the documents and information. I am a Director with Navigant, a specialized independent consulting firm that employs over 5,000 professionals and has over 60 offices worldwide. The firm's consultants include accounting, finance, engineering and information technology professionals experienced in the analysis of business operations, business valuation, financial and accounting matters, and economic damages. I have a Bachelor of Science Degree in Business Management with a concentration in finance and a Master's Degree in Business Administration. I am also a Certified Management Accountant and a member of the National Association of Certified Valuation Analysts. I am experienced in financial, economic, damage and accounting matters related to the scope of work on this matter. I have consulted on numerous engagements involving the analysis of economic damage claims, including engagements involving claims of infringement of intellectual property rights. My CV and a list of the cases in which I have provided expert testimony is included in Attachment B. My billing rate on this matter is $445 per hour. 1 3 EXPERT REPORT Confidential – Subject to Protective Order II. Background Kangaroo was formed in 2014 to manufacture products for resale on Amazon.1 Kangaroo's sells its products to Pennies 2 Platinum (formerly, Yagoozon) and to other authorized merchants who resell Kangaroo's products on Amazon.com.2 According to the complaint in this matter Kangaroo owns: U.S. Trademark Registration Numbers 4,897,428 and 5,132,989 for KANGAROO and design; and U.S. Trademark Registration Numbers 4,936,937, 4,980,760 and 5,132,866 for KANGAROO MANUFACTURING and design.3 In addition, I understand that Kangaroo owns the copyright in the design of various products its sales, such as the emoji beach balls, and in photographs used to advertise those products, and Kangaroo copyrights were registered before infringement by Amazon commenced.4 Kangaroo claims Amazon willfully advertised and sold counterfeit goods on Amazon.com containing the Kangaroo marks and word marks, infringed the Kangaroo trademarks and copyrights by displaying images of and distributing counterfeit products, and sold or caused others to sell counterfeit products on Product Detail Pages ("PDPs") created using Kangaroo Universal Product Codes ("UPCs"), and has thus been damaged.5 It is my understanding that Kangaroo identified at least four products offered for sale and sold on Amazon that were counterfeit or infringed Kangaroo's marks and copyrights ("the Accused Products"). The Accused Products are identified by the following Amazon Standard Identification Numbers ("ASINs"): ASIN ASIN Description B00O17SZ6Y Kangaroo King's Crown, Gold B00O18DY1O Kangaroo Adjustable Adult Captain's Yacht Cap, White B0182WBENE Emoji Universe: 12" Emoji Inflatable Beach Balls, 12-Pack B01832S51C Emoji Universe Series One: Latex Emoji Smiley Face Balloons 72 Pack Yellow 1 Complaint p. 2. 2 Complaint p. 2. P2P no longer sales products on Amazon.com as of August 2017. 3 Complaint p. 5. 4 Complaint p. 9. 5 Complaint pp. 5-11. 2 3 EXPERT REPORT Confidential – Subject to Protective Order III. Analysis of Copyright and Trademark Infringement Remedies Under the law, the owner of trademarks and copyrights whose marks and works have been infringed or counterfeited is entitled to recover its actual damages or, under certain circumstances, the defendant's profits. 6 In this matter, I have performed analyses under both remedies, as described below. A. Kangaroo's Actual Damages Resulting from the Alleged Infringement Causation Assumptions To not infringe, the unauthorized sellers would have had to either: (1) become authorized by and buy their products from Kangaroo, or (2) not sell the Accused Products. In the "but for" world under the first scenario, all Accused Sales would have been made by Kangaroo; however, it is my understanding that it is unlikely that the unauthorized sellers would have agreed to Kangaroo's terms. When customers who purchased the Accused Products made their purchase, they presumably had the choice of purchasing the Kangaroo products (or unauthorized products masquerading as such) or any non-infringing alternatives that may have come up in their Amazon search list. With respect to the emoji beach balls, Rhode Island Novelty Company ("RINCO") sold the only non- infringing alternative. The ASIN sales data produced by Amazon (which included the RINCO sales) shows that when RINCO entered the market, its beach balls generally sold for a lower price than those of the unauthorized and Kangaroo-authorized resellers, whose prices were generally similar when RINCO was in the market. Therefore, even when RINCO was in the market with its lower-price alternative, because the customers who purchased the Accused Products were willing to pay a higher price, I have assumed that in the "but for" world under the second scenario, these customers would have purchased the products offered by the Kangaroo-authorized sellers. Therefore, all emoji beach ball Accused Product sales would have gone to Kangaroo. With respect to the emoji balloons Accused Products, it is my understanding that there were no competing latex emoji balloon alternative products available at the time. Therefore, unless and until Amazon can provide sales and pricing data that show otherwise, I have assumed that every sale of an emoji balloon Accused Product is a lost sale to Kangaroo. With respect to the other two Accused Product ASINS (crown and yacht cap), because the pricing between the authorized and unauthorized products is often similar, and customers selected those products over any alternatives available, I have assumed that all Accused Product sales would have gone to Kangaroo. 6 15 USC § 1117 - Recovery for violation of rights (trademark); 17 USC § 504 - Remedies for infringement (copyright) 3 3 EXPERT REPORT Confidential – Subject to Protective Order Damage Analysis and Calculations Amazon produced a database of sales data for the four subject ASINs plus RINCO's two ASINs (ASIN database), which included the selling entity, units sold, selling price and date, among other information. 7 Kangaroo provided a list of its authorized resellers, 8 which I used to identify all unauthorized unit sales of Accused Products in the ASIN database, or lost-sales units (see Schedules 1 and 2 for detail). To determine Kangaroo's "but for" sales prices, I calculated its average selling price per unit by ASIN from its internal sales statements9 (see Schedule 3 for detail). In calculating the average selling price per unit, I excluded certain credit memos for refunds and/or returns issued by Kangaroo to its Authorized Resellers, which Kangaroo asserts were issued due to the unauthorized counterfeit/infringing products sold on Amazon. I calculated two different sales prices – one based on Kangaroo's average selling prices to its authorized resellers and the other based on its average selling prices to Pennies 2 Platinum ("P2P"), an entity related to Kangaroo, and weighted them according to the share of authorized sales made by each (see Schedules 4 and 5). The Kangaroo sales statements also contained cost information, which allowed me to calculate the costs that would have been incurred in making the lost sales. These costs included costs incurred by Kangaroo to purchase the products from manufacturers and costs incurred for freight, customs and duties charges to import the products into the U.S (see Schedule 6 for detail). I analyzed Kangaroo's profit and loss statements and had discussions with Kangaroo management and determined that no additional incremental costs would have been incurred to make the lost sales (which were less than 1% of the company's total sales during the period). I applied the weighted-average unit-sales prices and costs to the lost-sales units to obtain lost sales dollars and costs. The difference yielded lost profits of $62,909 (see Schedule 7). Kangaroo sustained an additional damage associated with mitigating its losses caused by the infringers/counterfeiters. To mitigate the negative impact that the Accused Product sales had on the reputation and selling prices of authorized Kangaroo products, and to avoid any liability risk related to the inferior quality and failure to comply with applicable safety labeling standards of the Accused Products, Kangaroo purchased a significant amount of Accused Products from unauthorized resellers on Amazon. To determine the total amount of these purchases, I downloaded a purchase item detail report and refund report from Kangaroo's Amazon.com account to identify all purchases and associated refunds of the four ASINs at issue in this matter. As shown on Schedule 9, from 2015 through 2017 Kangaroo purchased $29,931 of Accused 7 AMZ-KANGAROO00001101.xlsx 8 File titled "ApprovedAmazonSellers - Corp & Seller Names & Status 020718.xlsx". 9 Files titled "Sales 2014-2017 SKU 10009.xlsx", "Sales 2014-2017 SKU 10013.xlsx", "Sales 2014-2017 SKU 10094.xlsx" and "Sales 2014-2017 SKU 10099.xlsx". 4 3 EXPERT REPORT Confidential – Subject to Protective Order Products, net of refunds. These purchases were excluded from our lost sales calculation above (see Schedules 7 and 8). B. Defendants' Profits Attributable to the Alleged Infringement Using the ASIN database previously described, I was able to identify the sales revenue generated by Amazon from sales of the Accused Products, which totals $289,128 (see Schedules 1 and 2). _______________________ Bryce R. Cook 5 Kangaroo Manufacturing v. Amazon Schedule 5 Weight Percentages (%) - Authorized Sales Emoji Beach Balls Emoji Balloons 72 King's Crown Captain's Cap Total 12 Pack Pack Quantity Quantity Quantity Quantity Quantity Sold [1] % Sold [1] % Sold [1] % Sold [1] % Sold [1] % 2015 Pennies 2 Platinum 3,968 84% 5,754 76% 9,722 79% Other Authorized 773 16% 1,838 24% 2,611 21% Total Authorized 4,741 100% 7,592 100% 12,333 100% 2016 Pennies 2 Platinum 25,430 77% 5,647 88% 5,059 72% 8,766 68% 44,902 75% Other Authorized 7,732 23% 798 12% 1,986 28% 4,187 32% 14,703 25% Total Authorized 33,162 100% 6,445 100% 7,045 100% 12,953 100% 59,605 100% 2017 Pennies 2 Platinum 2,068 4% 1,461 29% 1,120 32% 339 5% 4,988 7% Other Authorized 52,916 96% 3,645 71% 2,392 68% 7,082 95% 66,035 93% Total Authorized 54,984 100% 5,106 100% 3,512 100% 7,421 100% 71,023 100% All Years Pennies 2 Platinum 27,498 31% 7,108 62% 10,147 66% 14,859 53% 59,612 42% Other Authorized 60,648 69% 4,443 38% 5,151 34% 13,107 47% 83,349 58% Total Authorized 88,146 100% 11,551 100% 15,298 100% 27,966 100% 142,961 100% [1] Per Schedule 2. 3 [3] Per Schedule 6. Confidential - Subject to Protective Order Kangaroo Manufacturing v. Amazon Schedule 6 Kangaroo - Average Cost Per Unit Average Direct Costs Extended Cost Per Qty Sales [5] Margin Unit Emoji Beach Balls [1] 2016 41,355 227,097 128,201 98,897 3.10 2017 89,423 518,015 267,572 250,444 2.99 Emoji Balloons [2] 2016 8,718 42,437 22,144 20,293 2.54 2017 5,505 34,328 13,984 20,343 2.54 King's Crown [3] 2015 7,994 $ 39,977 $ 18,898 $ 21,079 $ 2.36 2016 15,419 65,810 36,697 29,113 2.38 2017 4,231 11,676 10,070 1,606 2.38 Captain's Cap [4] 2015 12,396 $ 45,146 $ 19,660 $ 25,487 $ 1.59 2016 28,278 107,184 45,245 61,939 1.60 2017 8,092 35,281 12,947 22,334 1.60 [1] File titled "Sales 2014-2017 SKU 10099.xlsx" excluding credit memo #'s CM04271701, CM06261707, CM06271704, CM06291701, which Kangaroo claims were caused by Amazon's alleged wrongful actions. [2] File titled "Sales 2014-2017 SKU 10094.xlsx [3] File titled "Sales 2014-2017 SKU 10009.xlsx [4] File titled "Sales 2014-2017 SKU 10013.xlsx 3 [5] Sales minus Extended Margin. Includes Kangaroo's costs to purchase the products and freight, customs and duties charges to import the products. [3] Per Schedule 6. Confidential - Subject to Protective Order Kangaroo Manufacturing v. Amazon Schedule 7 Lost Profits By ASIN Weighted Adjusted Average Sales Average Accused Units Price Per Unit Direct Costs Sold [1] [2] Lost Sales Per Unit [3] Direct Costs Lost Profits Emoji Beach Balls - 12 Pack 2016 8,027 5.42 43,473 3.10 24,884 18,590 2017 8,893 5.74 51,017 2.99 26,610 24,407 Emoji Beach Balls Total 16,920 $ 94,490 $ 51,493 $ 42,997 Emoji Balloons - 72 Pack 2016 793 3.75 2,973 2.54 2,014 958 2017 3,136 5.95 18,669 2.54 7,966 10,703 Emoji Balloons Total 3,929 $ 21,642 $ 9,980 $ 11,661 King's Crown 2015 715 5.07 3,627 2.36 1,690 1,936 2016 424 4.37 1,854 2.38 1,009 845 2017 184 2.85 525 2.38 438 87 King's Crown Total 1,323 $ 6,006 $ 3,137 $ 2,868 Captain's Cap 2015 1,691 3.51 5,941 1.59 2,682 3,259 2016 376 3.98 1,495 1.60 602 894 2017 426 4.49 1,911 1.60 682 1,229 Captain's Cap Total 2,493 $ 9,347 $ 3,965 $ 5,382 All ASIN's Total $ 24,665 $ 131,485 $ 68,576 $ 62,909 3 [1] Per Schedule 8. [2] Per Schedule 4. [3] Per Schedule 6. Confidential - Subject to Protective Order Kangaroo Manufacturing v. Amazon Schedule 8 Accused Sales Adjustment Less Kangaroo's Adjusted Accused Units Purchase of Accused Units Sold [1] Counterfeit Units [2] Sold Emoji Beach Balls - 12 Pack 2016 8,542 (515) 8,027 2017 11,233 (2,340) 8,893 Emoji Beach Balls Total 19,775 (2,855) 16,920 Emoji Balloons - 72 Pack 2016 800 (7) 793 2017 3,172 (36) 3,136 Emoji Balloons Total 3,972 (43) 3,929 King's Crown 2015 715 - 715 2016 436 (12) 424 2017 203 (19) 184 King's Crown Total 639 (31) 608 Captain's Cap 2015 1694 (3) 1,691 2016 376 - 376 2017 464 (38) 426 Captain's Cap Total 840 (38) 802 All ASIN's 2015 2,409 (3) 2,406 2016 10,154 (534) 9,620 2017 15,072 (2,433) 12,639 All ASIN's Total 27,635 (2,970) 24,665 3 [3] Per Schedule 6. [2] Per Schedule 9. Confidential - Subject to Protective Order Kangaroo Manufacturing v. Amazon Schedule 9 Summary of Kangaroo's Purchases of Counterfeit Products [1] 2015 2016 2017 Total Qty Sales Qty Sales Qty Sales Qty Sales ASIN Emoji Beach Ball - 12 Pack - $ - 515 $ 4,091 2,340 $ 24,731 - $ 28,823 Emoji Balloons - 72 Pack - - 7 65 36 345 - 410 King's Crown - - 12 110 19 172 - 282 Captain's Cap 3 28 - - 38 388 - 417 Assortmart Beach Balls - 24 Pack - - - - - - - - Bottles N Bags Beach Balls - 12 Pack - - - - - - - - Total All ASIN's 3 $ 28 534 $ 4,267 2433 $ 25,636 - $ 29,931 [1] Net purchased of counterfeit/infringing product made by Kangaroo for the four ASIN's at issue per files titled" Item 01-Jan-2015_to_01-Feb-2018.csv" and "Refunds 01-Jan-2015_to_01-Feb-2018.csv" downloaded from Kangaroo/Yagoozon's Amazon purchase account. 3 Confidential - Subject to Protective Order

Exhibit F

Exhibit F Atkinson-Baker Court Reporters www.depo.com 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE DISTRICT OF ARIZONA 3 4 Kangaroo Manufacturing,) No. Inc.,) CV-17-1806-PHX-SPL 5) Plaintiff,) 6) v.) 7) Amazon.com, Inc.,) 8) Defendant.) 9 _______________________________) 10 11 12 13 14 VIDEOTAPED 30(b)(6) DEPOSITION OF KANGAROO MANUFACTURING, INC. 15 (ACE HEMANI) 16 April 19, 2018 11:42 a.m. 17 Tempe, Arizona 18 19 20 21 22 23 AtkinsonBaker, Inc. Court Reporters Prepared by: 24 (800) 288-3376 Marcella Daughtry, RPR www.depo.com Arizona CR No. 50623 25 FILE NO. AC03BDE 30(b)(6): Ace Hemani April 19, 2018 Atkinson-Baker Court Reporters www.depo.com 1 INDEX 1 VIDEOTAPED 30(B)(6) DEPOSITION OF 2 WITNESS PAGE 2 KANGAROO MANUFACTURING, INC. (ACE HEMANI) 3 ACE HEMANI 3 was taken on April 19, 2018, at the offices of 4 Examination by Mr. Geringer 6 5 4 Carpenter, Hazlewood, Delgado, & Bolen, LLP, 1400 East 6 5 Southern Avenue, Tempe, Arizona, commencing at the hour 7 6 of 11:42 a.m., before Marcella Daughtry, a Registered INDEX TO EXHIBITS 7 Professional Reporter and Arizona Certified Reporter, 8 8 in and for the State of Arizona. Description Page 9 9 Exhibit 23 First Amended Answer and Defenses 11 10 APPEARANCES: 10 of Defendant Amazon.com, Inc. 11 11 Exhibit 24 Various e-mails 62 12 For the Plaintiff: KANGAROOM0003 - 0234 to 0633 13 Carpenter, Hazlewood, Delgado & Bolen, LLP 12 MR. TIMOTHY R. GRIMM Exhibit 25 Halloween Superstore ad 83 14 1400 East Southern Avenue, Suite 400 13 AMZ-KANGAROO00003039 14 Exhibit 26 Various e-mails 103 Tempe, Arizona 85282 KANGAROOM0003 - 0634 to 0992 15 480.427.2845 15 tim@carpenterhazlewood.com Exhibit 27 Various e-mails 107 16 16 KANGAROOM0003 - 0993 to 1156 17 17 Exhibit 28 Letter to Sir or Madam from 107 David Schnider 9/28/16 For the Defendant: 18 "Re: Infringement of Our 18 Intellectual Property Rights" Klarquist Sparkman, LLP 19 KANGAROOM0003 - 0121 to 0233 19 MR. JAMES E. GERINGER 20 Exhibit 29 Various e-mails 107 121 SW Salmon Street, Suite 1600 KANGAROOM0003 - 0042 to 0120 21 20 Portland, Oregon 97204 Exhibit 30 Bottles N Bags 12" Emoticon 126 503.595.5300 22 Beach Ball Inflate Amazon 21 james.geringer@klarquist.com ad 22 23 AMZ-KANGAROO00000123 to 128 23 Also Present: 24 Exhibit 31 24 emoji Beach Balls Inflatable 127 24 Cody Warren, videographer Amazon ad 25 25 AMZ-KANGAROO00000158 to 165 Page 2 Page 4 1 INDEX TO EXHIBITS, CONT'D 1 THE VIDEOGRAPHER: Good afternoon. My name is 11:42:15 2 Description Page 2 Cody Warren, your videographer, representing 11:42:19 3 Exhibit 32 RIN Emoji Beach Balls Inflatable 145 Amazon ad 3 Atkinson-Baker in Glendale, California. I am not 11:42:23 4 AMZ-KANGAROO00001187 to 1192 4 financially interested in this action, nor am I a 11:42:25 5 Exhibit 33 Emoji Beach Balls Inflatable 146 5 relative or employee of any attorney or any of the 11:42:28 Amazon ad 6 AMZ-KANGAROO00001074 to 1080 6 parties. Today's date is April 19th, 2018, and the 11:42:31 7 Exhibit 34 RIN Emoji Beach Balls Inflatable 147 7 time is approximately 11:42 a.m. 11:42:36 Amazon ad 8 This deposition is taking place at Carpenter, 11:42:40 8 AMZ-KANGAROO00000543 to 549 9 9 Hazlewood, Delgado & Bolen located at 1400 East 11:42:43 10 10 Southern Avenue, Suite 400 in Tempe, Arizona. This 11:42:48 11 QUESTIONS INSTRUCTED NOT TO ANSWER 11 case number is 17-CV-1806 entitled Kangaroo versus 11:42:54 PAGE LINE 12 12 Amazon. 11:43:01 35 10 13 Our deponent is 30(b)(6) witness Ace Hemani. 11:43:03 13 36 5 14 This deposition is being taken by the defendant. Our 11:43:07 36 13 15 court reporter today is Marcie Daughtry, also 11:43:10 14 36 20 38 14 16 representing Atkinson-Baker. 11:43:12 15 46 14 17 At this time, will counsel please identify 11:43:14 71 4 16 18 themselves and state whom they represent. 11:43:16 17 19 MR. GERINGER: Jim Geringer representing 11:43:18 18 20 Amazon. 11:43:20 19 20 21 MR. GRIMM: And Tim Grimm for Kangaroo. 11:43:20 21 22 THE VIDEOGRAPHER: Thank you. 11:43:22 22 23 And will the court reporter please swear in 11:43:23 23 24 24 the witness. 25 25 Page 3 Page 5 2 (Pages 2 to 5) 30(b)(6): Ace Hemani April 19, 2018 Atkinson-Baker Court Reporters www.depo.com 1 ACE HEMANI, 1 Q Okay. For the record, to keep it clear, you 11:45:46 2 called as a witness herein, having been first duly 2 will see that there are exhibit numbers marked. 11:45:48 3 sworn by the shorthand reporter to speak the truth and 3 A Okay. 11:45:50 4 nothing but the truth, was examined and testified as 4 Q So you indicated that you had reviewed 11:45:50 5 follows: 5 Exhibit -- 11:45:52 6 6 A 13. 11:45:53 7 EXAMINATION 7 Q -- 13 but not -- you have not seen 14 or 15; 11:45:53 8 BY MR. GERINGER: 11:43:31 8 is that correct? 11:45:59 9 Q Hi, Mr. Hemani. My name is Jim Geringer. 11:43:31 9 A Correct. 11:45:59 10 I'll do my best to ask questions that are -- are clear. 11:43:45 10 I don't believe I've seen 19. 11:46:04 11 If I ask any that aren't clear, your counsel may 11:43:48 11 MR. GRIMM: Hold on. There's not a question 11:46:12 12 object, you know, a question is unclear, but you, too, 11:43:51 12 before you yet, so let him ask. 11:46:14 13 are perfectly free always to ask me to restate a 11:43:56 13 THE WITNESS: Okay. 11:46:14 14 question or rephrase it. Okay? 11:44:01 14 MR. GERINGER: No, I -- I asked whether there 11:46:16 15 Is there anything today that would keep you 11:44:02 15 were any other documents that are in the stack before 11:46:17 16 from testifying? Are you taking medications or -- 11:44:04 16 him that he reviewed in preparation for today's 11:46:20 17 A No. 11:44:07 17 deposition. 11:46:23 18 Q There's -- there's nothing that would keep you 11:44:08 18 Q BY MR. GERINGER: Are there any others 11:46:23 19 from testifying with a clear and honest mind today, 11:44:10 19 besides -- 11:46:25 20 right? 11:44:14 20 A I did review some that aren't in -- directly 11:46:25 21 A Correct. 11:44:14 21 in front of me. 11:46:28 22 Q Have you ever been deposed before? 11:44:15 22 Q All right. What documents were those? 11:46:29 23 A I have not been deposed before. 11:44:17 23 A Sorry, I don't know the technical jargon for 11:46:31 24 Q So like I said, I'll try to ask fairly clear 11:44:19 24 it, but it was the responses. 11:46:34 25 questions. Your counsel has an opportunity to object. 11:44:24 25 Q Whose responses? 11:46:47 Page 6 Page 8 1 As -- as I believe you may know, he might even instruct 11:44:26 1 A I also reviewed the Cook report and responses 11:46:49 2 you not to answer a question at that -- if he does, 11:44:30 2 from Amazon on the complaint that we filed. 11:46:57 3 then I'll typically ask you if you are going to follow 11:44:33 3 Q So Amazon's answer? 11:47:03 4 that instruction, but no one can make you do anything 11:44:36 4 A Yeah. 11:47:05 5 that you don't want to do. 11:44:41 5 Q Okay. Besides Amazon's answer and the Cook 11:47:06 6 And if you want to take a break at any time, 11:44:45 6 report and the complaint, did you review any other 11:47:15 7 we'll accommodate that. 11:44:48 7 documents in preparation for testifying today? 11:47:19 8 A Sure. 11:44:49 8 A I did, but I can't remember the names of those 11:47:23 9 Q We will probably be breaking for lunch and 11:44:50 9 documents. 11:47:26 10 after just going about an hour. I have 11:43 now. We 11:44:52 10 Q Okay. Can you describe them subject matter 11:47:26 11 will shoot for something like 12:30, 12:40. 11:44:58 11 wise? 11:47:29 12 Okay. Mr. Hemani, did you review any 11:45:03 12 A Yeah. So there was -- so obviously the 11:47:30 13 documents to prepare for your testimony today? 11:45:05 13 complaint, right, which was the file that we had 11:47:35 14 A Yes. 11:45:08 14 against you guys. And then we had the responses to 11:47:37 15 Q What documents did you review? 11:45:08 15 discovery, and I believe that's all I reviewed this 11:47:41 16 A I reviewed the complaint. I reviewed -- am I 11:45:10 16 morning. There might have been other documents I 11:47:47 17 okay going through this? 11:45:22 17 reviewed in the past, but -- 11:47:49 18 Q Yes. The witness is just looking through the 11:45:23 18 Q Okay. 11:47:51 19 stack of exhibits that were marked with the earlier 11:45:26 19 A -- that's all I went over this morning. 11:47:51 20 designee Mr. Follett. 11:45:28 20 Q So your -- other than preparing for this 11:47:56 21 Did you -- do you recognize any of the 11:45:31 21 deposition this morning, did you prepare for it at any 11:47:57 22 documents in the stack that you're reviewing which were 11:45:32 22 earlier time as well? 11:48:02 23 marked this morning with Mr. Follett? 11:45:35 23 A I reviewed some documents that crossed my desk 11:48:03 24 A I believe I reviewed this one (indicating). I 11:45:38 24 because of information that was warranted by me, but 11:48:05 25 did not review these exhibits. 11:45:44 25 besides that, no. 11:48:08 Page 7 Page 9 3 (Pages 6 to 9) 30(b)(6): Ace Hemani April 19, 2018 Atkinson-Baker Court Reporters www.depo.com 1 A Okay. So I'm going to try to explain it from 02:51:04 1 Kangaroo's rights? 02:53:55 2 a -- from an example perspective, okay? Our emoji 02:51:07 2 A You want me to -- how many complaints do you 02:53:56 3 beach balls are selling for $15, okay? Amazon comes 02:51:10 3 want to see in this pack (indicating)? 02:54:00 4 along and sells it for $9 or $8 or $7, whatever that 02:51:15 4 Q You are pointing to Exhibit 24, correct? 02:54:02 5 price is. Now Amazon is going to consider this product 02:51:20 5 A Yes. 02:54:04 6 to be that normal price if it's gone on for some time. 02:51:22 6 Q Okay. Are you relying upon anything else 02:54:04 7 And they don't disclose what that some time is or how 02:51:26 7 besides Exhibit 24, the e-mails produced by Kangaroo? 02:54:06 8 many units have to be sold for that to be the normal 02:51:30 8 A We also use the counterfeit tool to submit 02:54:09 9 price, right? It's proprietary to their system. 02:51:32 9 claims, as well, because Amazon has a link that you can 02:54:14 10 Now, we finally got Amazon off from 02:51:35 10 use to do it. So besides this, there's that link as 02:54:16 11 counterfeiting this product, but when we go past a 02:51:38 11 well. And I'm assuming, I haven't -- fat packet, I 02:54:19 12 certain price, let's say $12, that buy box disappears; 02:51:40 12 haven't really gone through it, but I'm assuming all 02:54:24 13 it's no longer active. You have to click the button on 02:51:43 13 the e-mails are there. 02:54:26 14 the side that says, see all buying choices and then add 02:51:48 14 Q I'll represent to you that Kangaroo produced 02:54:27 15 it to cart. Nobody is shown the buy box in this 02:51:50 15 the documents clipped at Exhibit 24. And I'm asking 02:54:29 16 instance because Amazon says, okay, I'm going to 02:51:54 16 whether besides Exhibit 24 -- also, that I believe this 02:54:38 17 protect the consumer because it's a $9 item, and 02:51:56 17 clip relates to the 10099 product. Other portions, 02:54:42 18 everyone is trying to sell it for 15. 02:52:00 18 which I'll be happy to mark -- they are not quite as 02:54:48 19 Q And is it your testimony that Amazon has an 02:52:02 19 thick -- represent e-mails on the three other products. 02:54:53 20 obligation to give a Kangaroo-approved seller the buy 02:52:05 20 But turning just to this exhibit, you know, 24, and the 02:54:57 21 box? 02:52:08 21 10099 product, other than Exhibit 24, can you 02:55:00 22 MR. GRIMM: Form, foundation. 02:52:08 22 identify -- and the -- well, other than Exhibit 24, can 02:55:06 23 THE WITNESS: The buy box was taken away 02:52:09 23 you identify any documentary evidence that Kangaroo has 02:55:10 24 because of the counterfeiting issue, not because Amazon 02:52:12 24 to support its allegation that Amazon has willfully 02:55:15 25 decides, oh, hey, today I feel like taking the buy box 02:52:15 25 infringed Kangaroo's rights? 02:55:19 Page 98 Page 100 1 away, right? The buy box is taken away based on the 02:52:18 1 A I can't -- I can't really say. 02:55:20 2 average selling price. 02:52:22 2 Q And do you have any evidence that Amazon 02:55:30 3 Q BY MR. GERINGER: Are there any alleged 02:52:22 3 continued infringing Kangaroo's rights after the 02:55:34 4 counterfeits being offered today on the product detail 02:52:24 4 complaint was filed or after Kangaroo gave notice to 02:55:38 5 pages for any of these four products? 02:52:28 5 Amazon on any of these four products? 02:55:42 6 A Not that I'm aware of. 02:52:30 6 A Outside of this exhibit, correct? Outside of 02:55:44 7 Q Has Kangaroo given Amazon any notices of 02:52:37 7 Exhibit 24? 02:55:46 8 claimed infringement since June of 2017 on any of these 02:52:42 8 Q Correct. 02:55:47 9 four products for any listings on the site? 02:52:46 9 A I -- I can't say. 02:55:48 10 A We've gotten other counterfeiters off the 02:52:50 10 Q Okay. And to perhaps possibly save some time, 02:55:49 11 pages since then. 02:52:55 11 is -- is that testimony correct? For all of the 02:55:57 12 Q By submitting notices of claimed infringement 02:52:56 12 allegations of willfulness by Amazon in this complaint, 02:56:00 13 to Amazon? 02:53:00 13 do you have any evidence to -- so for the other 02:56:03 14 A Correct, via our attorney David Schnider. 02:53:01 14 products, as well, for trademark, as well, do you -- 02:56:07 15 Q When was the last time -- strike that. 02:53:04 15 can you identify for me any evidence that Amazon has 02:56:09 16 Let's go to -- I skipped a paragraph, sorry. 02:53:08 16 willfully infringed any rights of Kangaroo since the 02:56:12 17 You have to go back to paragraph 9. This allegation 02:53:20 17 beginning of time? 02:56:17 18 alleges that -- it alleges Amazon's willful and 02:53:25 18 A With the exception of Exhibit 24? 02:56:19 19 continuing infringement of Kangaroo's rights. Do you 02:53:33 19 Q Correct, with the exception of Exhibit 24 and 02:56:22 20 see that? 02:53:35 20 other e-mails that Kangaroo has produced. 02:56:24 21 A I'm reading it. 02:53:35 21 A Again, I'm going to refer to the copyright 02:56:28 22 Q Let me know when you are ready. 02:53:37 22 claims that we've filed via the tool and not heard 02:56:33 23 A Okay. 02:53:47 23 back. We've opened cases within Amazon, and no avail. 02:56:36 24 Q What evidence can you identify for me that 02:53:48 24 Q When you say "no avail," Exhibit 24 shows 02:56:42 25 supports the allegation that Amazon willfully infringed 02:53:50 25 plenty of avail. 02:56:46 Page 99 Page 101 26 (Pages 98 to 101) 30(b)(6): Ace Hemani April 19, 2018 Atkinson-Baker Court Reporters www.depo.com 1 MR. GRIMM: Form. 02:56:47 1 Okay? 02:59:57 2 Q BY MR. GERINGER: There are lots of 02:56:48 2 A Okay. 02:59:57 3 deactivations, right? 02:56:49 3 Q So I did not mean to mislead or make a -- a 02:59:58 4 A Sure. So I -- 02:56:51 4 record that you -- that you could point only to Exhibit 03:00:01 5 Q Did I say 22? I meant Exhibit 24. 02:56:51 5 24. In fact, you can point to the e-mails of Exhibit 03:00:05 6 A I mean, in the sense of Amazon actually 02:56:53 6 24 and 26, correct, for notices to Amazon regarding the 03:00:08 7 selling on our listings. 02:56:57 7 10099 product? 03:00:12 8 Q If Amazon does obtain Kangaroo product from 02:57:00 8 A (No oral response.) 03:00:14 9 any channel, it's free to sell it, right? 02:57:03 9 Q Okay. But besides those e-mails combined in 03:00:15 10 A Sure. 02:57:06 10 Exhibits 24 and 26 and the notices of claimed 03:00:18 11 Q You're aware, for example, like we produced 02:57:07 11 infringement submitted online, can you give me any 03:00:21 12 one -- one invoice. There was a company called 02:57:11 12 more -- any other evidence to support an allegation 03:00:25 13 TWTDREAM that is one of the vendors to Amazon, and they 02:57:14 13 that Amazon has acted willfully in regard to the 10099 03:00:28 14 had bought some product from Kangaroo. 02:57:19 14 product? 03:00:33 15 A 20 units. 02:57:21 15 A No. 03:00:35 16 Q Yeah, 20 units of the 10099? 02:57:22 16 Q And is that the same answer for the other 03:00:36 17 A Uh-huh. 02:57:24 17 three products that we've got? Can you give me any 03:00:53 18 Q Directly from Kangaroo? 02:57:25 18 evidence that Amazon has acted in willful disregard of 03:00:56 19 A Yes. 02:57:26 19 Kangaroo's rights for the 10094, the 10009, or the 03:01:00 20 Q Do you know where they got their other units? 02:57:27 20 10013 products? 03:01:06 21 A I'm unaware. 02:57:29 21 A Again, as long as this is all-encompassing for 03:01:07 22 Q Has Kangaroo sought damages from Amazon for 02:57:31 22 all the e-mail exchanges that have happened. I can't 03:01:11 23 Amazon's sale of units of 10099 acquired from TWTDREAM? 02:57:35 23 guarantee that all of them are in here, but I'm 03:01:13 24 A Yes. 02:57:40 24 assuming they are. 03:01:16 25 Q Exhibit 25. 02:58:01 25 Q I would suggest to you, Mr. Hemani, that I was 03:01:16 Page 102 Page 104 1 THE COURT REPORTER: 26. 02:58:01 1 trying to be careful. The 24 and 26 are for the 10099. 03:01:21 2 MR. GERINGER: What was 25? 02:58:03 2 There are two other clips, which I'll be happy to mark 03:01:25 3 MR. GRIMM: The Halloween Superstore. Right? 02:58:05 3 now. They -- one of those clips -- 03:01:28 4 MR. GERINGER: Well, that's unfortunate, 02:58:07 4 A Okay. 03:01:30 5 because 26 is actually the counterpart to 24, and I 02:58:10 5 Q -- is for the hat, 10013. 03:01:30 6 want to give you a chance, because I have broken this 02:58:13 6 A Would it be beneficial for me to read through 03:01:33 7 thick compendium up into two groups. So we're going to 02:58:19 7 these packets? 03:01:36 8 mark this as Exhibit 26, and then we'll explain how it 02:58:23 8 Q No. I'm not asking you to do that. I'm 03:01:37 9 relates to Exhibit 24. 02:58:26 9 asking -- I'm saying, Kangaroo has produced us with 03:01:39 10 So Exhibit 24 runs from KANGAROO 234 to 633. 02:58:52 10 these e-mails. Maybe you recognize it, maybe you 03:01:42 11 Exhibit 26 runs from 634 to 992. 02:59:00 11 don't, but I'm -- but you are here to give me the 03:01:43 12 (Deposition Exhibit 26 was marked for 02:59:14 12 evidence to support Kangaroo's allegations, and I'm 03:01:43 13 identification.) 02:59:14 13 trying to find out if there is anything beyond what 03:01:44 14 Q BY MR. GERINGER: The reason I give those to 02:59:14 14 you've produced. And to make that clear, I'm trying to 03:01:46 15 you together, Mr. Hemani, is I'll represent to you 02:59:17 15 show you what you produced. 03:01:49 16 that -- 02:59:19 16 A Fair. 03:01:50 17 MR. GRIMM: Hold on. We are not on the record 02:59:19 17 Q Okay. So -- 03:01:51 18 yet, are we? 02:59:19 18 MR. GRIMM: Counsel, to clarify, 24 and 26, 03:02:00 19 Q BY MR. GERINGER: Mr. Hemani, I'll represent 02:59:26 19 plus the other packets that you have, you are 03:02:04 20 to you that Kangaroo produced those documents to us as 02:59:27 20 representing that those are the entirety of e-mails 03:02:07 21 e-mails relating to the 10099 product. So when I've 02:59:32 21 produced by Kangaroo that reflect the disputes that 03:02:11 22 previously referred to whether you have any evidence 02:59:39 22 we're talking about for these products; is that right? 03:02:16 23 other than in Exhibit 24, can we be clear and make 02:59:41 23 MR. GERINGER: I'm representing that Kangaroo 03:02:20 24 clear that I meant to refer to all of the e-mails in 02:59:47 24 produced an e-mail production from KANGAROOM003 - 42 to 03:02:21 25 Exhibit 24 and 26 combined for the 10099 product? 02:59:52 25 120, and identified those as regarding ASIN E0017SZ6Y, 03:02:29 Page 103 Page 105 27 (Pages 102 to 105) 30(b)(6): Ace Hemani April 19, 2018 Atkinson-Baker Court Reporters www.depo.com 1 which is the crown. Kangaroo 121 to 233 were produced 03:02:45 1 look at what's been marked as Exhibit 29, that's what 03:13:47 2 as e-mails relating to the yacht cap, which is ASIN 03:02:56 2 was represented to us to relate -- e-mails related to 03:13:54 3 B00O18DY10. Kangaroo 234 to 992 as described in 03:03:04 3 the crown. 03:13:58 4 Exhibits 24 and 26 related to the emoji beach balls, 03:03:13 4 If you look at Exhibit 28, it was represented 03:13:59 5 ASIN B0182WBNE. And Kangaroo production documents 993 03:03:20 5 to us to be e-mails related to the yacht cap. 03:14:04 6 to 1156 were represented to us by Kangaroo to be 03:03:29 6 And 24 and 26 we looked at, and they are 03:14:11 7 e-mails relating to the 72-piece emoji balls, 03:03:34 7 related -- or were represented to us to be related to 03:14:15 8 B01832S51C. That's what I'm representing. That's 03:03:43 8 e-mails regarding the 12-piece emoji beach balls. 03:14:20 9 what -- the information I got from Eadie. 03:03:45 9 And then finally, 27 represented to us to be 03:14:25 10 MR. GRIMM: Okay. So all of the things that 03:03:46 10 e-mails related to the 72-piece emoji balloons. 03:14:31 11 you've just read off, that I'm not going to repeat, 03:03:48 11 So now that you have that compendium to refer 03:14:40 12 that -- that's all things that were produced by 03:03:51 12 to, are these e-mails together among the evidence that 03:14:43 13 Kangaroo in this lawsuit; is that right? 03:03:55 13 you can point to to identify a basis for Kangaroo's 03:14:49 14 MR. GERINGER: Correct. 03:03:57 14 allegations that Amazon acted willfully -- or I'll 03:14:57 15 MR. GRIMM: Okay. 03:03:57 15 rephrase that. 03:15:02 16 MR. GERINGER: What I'm going to try to do now 03:04:00 16 Are these documents that have been marked 03:15:04 17 is mark copies of those so the record is clear. 03:04:02 17 Exhibits 24, 26, 27, 28, and 29 evidence that Kangaroo 03:15:06 18 First we'll mark as Exhibit -- is it 26? 03:04:19 18 has identified as support for its allegations Amazon 03:15:12 19 MR. GRIMM: '7. 03:04:23 19 has acted willfully? 03:15:16 20 MR. GERINGER: Sorry, 27, right, documents 03:04:24 20 A Yeah. And I'm not sure if it's in its 03:15:18 21 bearing Bates numbers KANGAROOM003 - 993 to 1155 -- I'm 03:04:36 21 entirety. I haven't been through this ream of paper, 03:15:22 22 sorry, 1156. These were identified to me by Kangaroo 03:04:46 22 but I believe so. 03:15:25 23 as relating to the 72-piece emoji balloon. If we can 03:04:51 23 Q Are you aware of any other documentary 03:15:27 24 get a sticker on that. 03:05:02 24 support -- strike that. 03:15:29 25 (Deposition Exhibit 27 was marked for 03:05:05 25 Besides these exhibits, 24 through 29, with 03:15:32 Page 106 Page 108 1 identification.) 03:06:18 1 the exception of -- 03:15:37 2 MR. GERINGER: The next exhibit. 03:06:18 2 A 25. 03:15:39 3 THE WITNESS: 28. 03:06:20 3 Q -- 25, are you aware of any other documents 03:15:41 4 MR. GERINGER: 28, KANGAROOM003 - 121 to 233, 03:06:21 4 which you can identify to me as evidence of -- in 03:15:45 5 it's presented as relating to the yacht cap. No. 28. 03:06:30 5 support of Kangaroo's allegations of willful 03:15:51 6 (Deposition Exhibit 28 was marked for 03:06:50 6 infringement by Amazon? 03:15:53 7 identification.) 03:06:51 7 A This seems like all of it. 03:15:55 8 Q BY MR. GERINGER: And we are still missing the 03:06:51 8 Q Returning to the complaint, if you look at 03:15:57 9 crown. The crown is 42 to 120. 03:06:53 9 paragraph 36, this paragraph states, "The FBA service 03:16:26 10 MR. GERINGER: Let's take a little five-minute 03:08:34 10 and Amazon regulation of sales allow Amazon to control 03:16:37 11 break, because this is driving me crazy that I can't 03:08:35 11 the PDP, product listing, price, and delivery." 03:16:41 12 find the document. 03:08:38 12 My question is, what evidence can you identify 03:16:46 13 THE VIDEOGRAPHER: We are going off the 03:08:39 13 to me that Amazon controls the price of any of the 03:16:49 14 record. The time is 3:08 p.m. 03:08:40 14 products sold by third parties on Amazon? 03:16:55 15 (The deposition was at recess from 3:08 p.m. 03:08:43 15 A So again, going back to that buy box issue, 03:16:59 16 to 3:13 p.m.) 03:12:36 16 that obviously exists when the price is too high. So 03:17:04 17 (Deposition Exhibit 29 was marked for 03:12:36 17 they control it that way, right? But on the low end, 03:17:06 18 identification.) 03:13:04 18 generally what we mean by that is, that when Amazon 03:17:10 19 THE VIDEOGRAPHER: We are back on the record. 03:13:04 19 comes on a page, they don't want to give anybody else 03:17:12 20 The time is 3:13 p.m. 03:13:11 20 the buy box so they drop the price until no one can 03:17:14 21 Q BY MR. GERINGER: Okay. Mr. Hemani, thank you 03:13:13 21 match that price. So it works in both ways. 03:17:17 22 for your patience. I have now assembled the five 03:13:22 22 Q Okay. Anything else you can add to that? 03:17:22 23 exhibits which I'll represent to you are a compendium 03:13:27 23 A No. 03:17:23 24 of documents from KANGAROOM003 - 42 to 1156. And they 03:13:33 24 Q Okay. On paragraph 41, there's an allegation 03:17:25 25 were presented to us as broken out by product. If you 03:13:42 25 that, "Amazon knowingly and willfully advertised and 03:17:30 Page 107 Page 109 28 (Pages 106 to 109) 30(b)(6): Ace Hemani April 19, 2018 Atkinson-Baker Court Reporters www.depo.com 1 A Yes. 04:35:28 1 represent to you that this is actually -- there's a 04:38:35 2 Q Do you have any idea why Rhode Island Novelty 04:35:29 2 seller's page on the first two pages, and then a detail 04:38:37 3 would be using a picture of the -- of the Kangaroo 04:35:33 3 page that begins -- 04:38:41 4 emojis? 04:35:37 4 A Sure. 04:38:42 5 A The seller that's -- that listed this page put 04:35:38 5 Q -- on page 545. So if you could just look 04:38:42 6 it up incorrectly, my best guess. 04:35:40 6 at -- at these pages and tell me again, is this -- what 04:38:46 7 Q Okay. Let me get the copy back. And this 04:35:46 7 is the ASIN that this is for? 04:38:49 8 actually says sold by Amazon, doesn't it, there on 04:36:00 8 A It's the same one, OSC9. 04:38:51 9 the -- 04:36:00 9 Q Okay. And but now, what's the picture that's 04:38:54 10 A Right. 04:36:05 10 with it? 04:38:57 11 Q -- lower right? 04:36:05 11 A It's the actual Rhode Island Novelty picture. 04:38:58 12 A Yes. 04:36:06 12 Q And Kangaroo has no objection to this product 04:39:02 13 Q Okay. So did Kangaroo ever sell emoji beach 04:36:06 13 detail page, correct? 04:39:05 14 balls with those images to Rhode Island Novelty? 04:36:15 14 A No, sir. 04:39:07 15 A No. 04:36:19 15 MR. GERINGER: No further questions for this 04:39:07 16 Q I will show you another similar exhibit. This 04:36:19 16 witness. The 30(b)(6) will continue tomorrow with 04:39:09 17 is -- we will mark this as Exhibit 33. 04:36:28 17 Mr. Ligeri. 04:39:13 18 (Deposition Exhibit 33 was marked for 04:36:28 18 MR. GRIMM: We'll read and sign. I have no 04:39:14 19 identification.) 04:36:45 19 follow-up. 04:39:16 20 Q BY MR. GERINGER: Before we put 32 away, can 04:36:45 20 THE VIDEOGRAPHER: This concludes today's 04:39:16 21 you see the ASIN that's on that page, on Exhibit 32? 04:36:47 21 deposition of 30(b)(6) witness Ace Hemani consisting of 04:39:18 22 A It ends in OSC9. 04:36:51 22 two DVDs. We are going off the record. The time is 04:39:23 23 Q Exhibit 33 -- and that's the same picture that 04:36:55 23 4:39 p.m. 04:39:26 24 we saw before on the ASIN that ended in LD52, correct? 04:37:03 24 THE COURT REPORTER: Did you want a copy of 04:39:26 25 A Correct. 04:37:08 25 the transcript? 04:39:57 Page 146 Page 148 1 Q Assortmart, Bottles N Bags? 04:37:09 1 MR. GERINGER: So exactly the order that was 04:39:57 2 A Yeah. 04:37:12 2 given for the Cook depo, that's replicated. So 04:39:58 3 Q Okay. I'm going to show you an exhibit we've 04:37:12 3 whatever he asked for. I believe it was a five-day 04:40:01 4 marked as Exhibit 33. You've seen it. It bears Amazon 04:37:14 4 turnaround on the reporter. 04:40:03 5 production numbers AMAZON-KANGAROO 1074 to 1080. And 04:37:18 5 MR. GRIMM: Yeah, we are looking for no video 04:40:05 6 can you tell me what the ASIN on this listing is? 04:37:22 6 yet. I think we are just looking for an E-tran. 04:40:07 7 A It's the same as Exhibit 32, OSC9. 04:37:24 7 THE COURT REPORTER: Did you want it 04:40:13 8 Q Right. And again, is that a -- is that 04:37:28 8 expedited, too, for the five days? 04:40:14 9 Kangaroo's photo that's on that detail page? 04:37:31 9 MR. GRIMM: Yeah, however it was done last 04:40:16 10 A Yes. 04:37:33 10 time. 04:40:18 11 Q Do you have any idea who put it there? 04:37:33 11 (The deposition concluded at 4:39 p.m.) 12 A No clue. 04:37:35 12 13 Q Did Kangaroo file a complaint about people 04:37:37 13 14 using its photo for other products? 04:37:46 14 15 A Yes. 04:37:49 15 16 Q Other 12-inch beach ball products? 04:37:49 16 17 A Yes. 04:37:52 17 18 Q And were those pages deactivated, including 04:37:52 18 19 this one? 04:37:56 19 20 A Yes. 04:37:57 20 21 (Deposition Exhibit 34 was marked for 04:37:57 21 22 identification.) 04:37:58 22 23 Q BY MR. GERINGER: I will mark as Exhibit 34 a 04:37:58 23 24 related detail page that bears Bates numbers 04:38:19 24 25 AMAZON-KANGAROO 543 to 549. Mr. Hemani, I will 04:38:28 25 Page 147 Page 149 38 (Pages 146 to 149) 30(b)(6): Ace Hemani April 19, 2018 Atkinson-Baker Court Reporters www.depo.com 1 STATE OF ARIZONA)) ss: 2 COUNTY OF MARICOPA) 3 4 I HEREBY CERTIFY that the foregoing deposition 5 was taken before me; that I was then and there a 6 Registered Professional Reporter, and an Arizona 7 Certified Reporter, Certificate No. 50623, in and for 8 the State of Arizona; that the witness before 9 testifying was duly sworn by me to testify to the whole 10 truth; that the questions propounded by counsel and the 11 answers of the witness thereto were taken down by me in 12 shorthand and thereafter transcribed under my 13 direction; and that the foregoing pages contain a full, 14 true, and accurate transcript of all deposition 15 testimony and proceedings had, all done to the best of 16 my skill and ability. 17 I FURTHER CERTIFY that I am in no way related 18 to nor employed by any of the parties hereto, nor am I 19 in any way interested in the outcome. 20 Signature requested. 21 DATED at Phoenix, Arizona, this 25th day of 22 April, 2018. 23 ________________________________ 24 MARCELLA L. DAUGHTRY, RPR Certified Reporter 25 Certificate No. 50623 Page 150 39 (Page 150) 30(b)(6): Ace Hemani April 19, 2018

Exhibit G

Exhibit G ATTORNEY' S EYES ONLY/CONFIDENTIAL PROTECTED PURSUANT TO PROPOSED PROTECTIVE ORDER BETWEEN THE PARTIES CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP 1 Attorneys at Law 1400 E. Southern Ave., Suite 400 2 Tempe, Arizona 85282-5691 (480) 427-2800, Facsimile (480) 427-2801 3 min uteentries@carpen terhazlewood.com Mark K. Sahl 025729 4 Timothy R. Grimm 019110 Edith I. Rudder 020650 5 KANGAROOM.0003 Attorneys f or Defendant 6 7 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA 8 9 KANGAROO MANUFACTURING, INC., Case 2:17-cv-01806-SPL 1O a Florida corporation, PLAINTIFF KANGAROO 11 Plaintiff, MANUFACTURING, INC.'S 12 RESPONSES TO DEFENDANT v. AMAZON.COM, INC.'S SECOND SET 13 OF REQUESTS FOR PRODUCTION AMAZON.COM, INC., a Delaware 14 corporation, 15 Defendant. 16 17 Pursuant to the Federal Rules of Civil Procedure 26 and 34, Defendant Kangaroo 18 Manufacturing, Inc. ("Kangaroo"), by and through undersigned counsel, hereby answers 19 20 Amazon.com, Inc. ' s ("Defendant") Second Set of Requests for Production to Kangaroo. 21 PRELIMINARY STATEMENT 22 1. Kangaroo's objections and responses are made without waiving or intending 23 to waive any objections as to relevancy, privilege, admissibility of any information provided 24 25 in response to these Requests, in any subsequent proceeding or at trial of this or any other 26 1 ATTORNEY' S EYES ONLY/CONFIDENTIAL PROTECTED PURSUANT TO PROPOSED PROTECTIVE ORDER BETWEEN THE PARTIES REQUEST FOR PRODUCTION NO. 20: 1 2 All documents that show any alleged overcharges by Amazon for storage or 3 fulfillment. 4 RESPONSE: Objection. Relevance. Without waiving the foregoing objection, Kangaroo 5 has not made any allegations in this case as to overcharges by Amazon for storage or 6 7 fulfillment and any such information and/or documentation is not material to any claim or 8 defense in this case. Kangaroo does not have any documents responsive to this request. 9 DATED: April 16, 2018. 10 CARPENT, HAZLEWOOD, DELGADO & BOLEN LLP 11 12 13 imothy R. Grim n dith I. Rudder 14 1400 East Southern A venue, Suite 400 15 Tempe, Arizona 85282 Attorneys for Plaintiff 16 17 18 19 20 21 22 23 24 25 26 12 ATTORNEY'S EYES ONLY/CONFIDENTIAL PROTECTED PURSUANT TO PROPOSED PROTECTIVE ORDER BETWEEN THE PARTIES CERTIFICATE OF SERVICE 1 2 I hereby certify that on April 16, 2018, a true and correct copy of the foregoing document 3 was mailed by United States Mail, first-class postage prepaid, sealed, and addressed to: 4 5 Jam es Edward Geringer Klawquist, Sparkman, L.L.P. 6 1 World Trade Ctr. 121 SW Salmon St., Ste. 1600 7 Portland, Oregon 97204 8 Attorneys for Defendant Amazon.com 9 John A. Goldmark 10 Max B. Hensley Davis Wright Tremaine 11 1201 Third Ave., Ste. 2200 Seattle, WA 89101 -3045 12 Attorneys for Defendant Amazon.com 13 14 15 16 17 18 19 20 21 22 23 24 25 26 13 ATTORNEY'S EYES ONLY/CONFIDENTIAL PROTECTED PURSUANT TO PROPOSED PROTECTIVE ORDER BETWEEN THE PARTIES 1 VERIFICATION OF DAVID FOLLETT 2 I, David Follett, being duly sworn, deposes and says that I am authorized to answer 3 on behalf of Defendant and Kangaroo Manufacturing, Inc. in this action, that I have read the 4 foregoing responses to the Requests for Production of Documents and know their contents, and that the factual information provided in the answers is true to the best of my knowledge, 5 information, and belief. 6 Dated this _ _ day of April, 2018. 7 8 9 David Follett, Executive Director, Kangaroo Mfg., Inc. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 14

Exhibit H

2 Exhibit H 2 1 CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Attorneys at Law 2 1400 E. Southern Ave., Suite 400 Tempe, Arizona 85282-5691 3 (480) 427-2800, Facsimile (480) 427-280 L minuteentries@carpenterha zlewood.com 4 Mark K. Sahl 025729 Timothy R. Grimm 019110 5 Edith I. Rudder 020650 KANGAROOM.0003 6 7 Attorneys for Plaintiff 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE DISTRICT OF ARIZONA 10 11 Kangaroo Manufactrning, Inc., a Florida Case 2:17-cv-01806-SPL 12 corporation, 13 Plaintiff, PLAINTIFF'S ESI DISCLOSURES 14 PURSUANT TO RULE 16 CASE v. MANAGEMENT ORDER 15 Amazon.com, Inc., a Delaware corporation, 16 17 Defendant. 18 19 Plaintiff Kangaroo Manufacturing, Inc. ("Kangaroo") hereby serves its 20 21 Electronically Stored Inf01mation ("ESI"), identified in the MIDP Responses to 22 Defendant Amazon.com, Inc. ("Amazon"). 23 1. Exhibit A - Mr. Schnider's copyright infringement notice 24 25 communications to Amazon (KANGAROOM0003 - 000001 - KANGAROOM0003 - 26 000007) 27 28 1 2 1 2. Exhibit B -Mr. Scbnider's video identifying Emoji Beach Ball counterfeit 2 item traits and indicators using a shipment of counterfeit KangaToo goods purchased by 3 Amazon - Dropbox Link 4 5 https://www.dropbox.com/s/9yev88natb2kqrd/1MG 3573.m4v?d1=0 a copy is attached 6 to this PDF document. (KANGROOM0003 - 000008) 7 3. Exhibit C - PDF documents illustrating the difference between genuine 8 9 Kangaroo Emoji Balloons products and Amazon counterfeit products. 10 (K.ANGAROOM0003 - 000009 - KANGAROOM0003 - 000012) 11 4. Exhibit D - PDF documents illustrating the difference between genuine 12 Kangaroo Emoji Balloons products and Amazon counterfeit products. 13 14 (KANGAROOM0003 - 000013 - KANGAROOM0003 - 000015) 15 5. Exhibit E - Email requests from Kangaroo's sellers to account credits and 16 returns due to the artificially low prince of Kangaroo products caused by Amazon' s 17 18 counte1feit sales. (KANGAROOM0003 -000016-KANGAROOM0003 - 000019) 19 6. Exhibit F - Credit memo refunds and reimbursements to Kangaroo's 20 sellers due to the a1tificially low price of Kangaroo products cause by Amazon's 21 counterfeit sales. (KANGAROOM0003 - 000020-KANGAROOM003 -000037) 22 23 7. Exhibit G - Spreadsheet listing $23,922.36 incurred by Kangaroo 24 purchasing Amazon's counterfeit products to prevent them from failing into the hands 25 of general consumers and damaging Kangaroo' s brand. (KANGAROOM0003 - 26 27 000038 - KANGAROOM0003 - 000041) 28 2 2 1 2 3 RESPECTFULLY SUBMITTED this 3rd day of October, 2017. 4 5 CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP 6 7 By: -~ - dJ7_,., J-~ ., ~r___ Timothy R. Grimdi 8 Edith I. Rudder 9 1400 East Southern Avenue, Suite 400 Tempe, Atizona 85282 10 Substituted Attorneys for Plaintiff 11 12 CERTIFICATE OF SERVICE 13 I fmther certify that the October 3, 2017, the foregoing document was served via 14 15 electronic means to the following: 16 James Edward Geringer 17 Klawquist, Sparkman, L.L.P. I World Trade Ctr. 18 12 1 SW Salmon St., Ste. 1600 Portland, Oregon 97204 19 jarnes.geringer@klarquist.com 20 Attorneys for Defendant Amazon.com 21 22 23 24 25 26 27 28 3 2 Exhibit A 2 ATKINSON, BLAKE To: HARRIS, RAY Subject: RE: Your amazon.com inquiry Begin forwarded message: From: notice-request@amazon.com Subject Your amazon.com inquiry Date: June 18, 2017 at 1:07:55 PM PDT To: dschnider@nolanheimann.com Reply-To: notice-request+AQNYX16E1WVOY@amazon.com He llo, Thank you for informing us that you retracted your complaint. We cannot process your retraction at this time for the following reason(s): -- We are unable to locate the account of the seller you repo1ted. Sincerely, Amazon.com From: dschnidcr@nolanheimann.com Sent: Saturday, June 17, 2017 5:58 PM (PDT) Subject: Re: [CASE 2237989431] Your Email to JeffBezos - RE: [EXTERNAL] Re: FRAUD ALERT-- FALSE REPORT Zack: Thank you for yolli· email. We are responding and copying in the additional addresses you suggested. Three of Kangaroo's authorized sel lers still remain blocked from the page, weeks after we initially reported this fraud: PrimeTimeDeals, Treasure Ventures, and Swimming Pool Floats. We request that those three be reinstated immediately. Your email asks if we are satisfied by this response and J can only respond that we are very di sappointed. We recognize and appreciate that Amazon must take infringement reports seriously. But when we • report actual unauthorized sellers we are generally required to make test orders and provide proof. Amazon only reacts this quickly to our complaints when there is a copyright infringement and then generally pulls down the listing entirely. Here, Amazon remained on the listing and continued selling using Kangaroo's images, which)s perplexing if it considered the report a legitimate copyright infringement c laim. We also expected that once we reported lhe fraud Amazon would take quick action. Notice-dispute has never responded to any of my em.ails on this matter. It took weeks lo reinstate any of the authorized sellers and the three mentioned are still not on the page. We recognize that Amazon must follow procedures, but there is no c lear reason why these authorized listers should have been removed in the first place, let alone remained down so long. We hope that you will work quickly to reinstate PrimeTimeDeals, Treasure Ventures, and Swimming Pool Floats and that we will be able to avoid situations like this in the future. 1 KANGAROOM0003- 000001 2 Regards, David David Schnider I Partner NOLAN HEIMANN LLP [cid:image002.jpg@OlD 1OI26.8CF92BEO] T. 818.574.5 710 I M. 818 .207.51341 dschnider@nolanheimann.com<mai lto:dschnider@nolanheimann.com> 16133 Ventma Blvd., Ste. 820 !Encino, CA 91436 www.nolanhe-imann.com<http://www.nolanheimann.com/> On Jun 12, 2017, at 2:42 PM, Amazon Seller Support <resolution-sellers@amazon.com<mailto:resolution-- sellers@amazon.com>> wrote: ' Hello from Amazon.com<http://amazon.com/>, My name is Zack and I'm a member of the Amazon.com<http://amazon.com/> Executive Seller Relations Team. JeffBezos received your email and requested that our team respond on his behalf. I W1derstand that there was an illegitimate copyright infringement claim which resulted in multiple Sellers being removed from the listing of ASIN B0182WBENE. It appears that all of the Sellers, including the one associated with trzgam@gmail.com<mailto:trzgam@ gmail.com>, have had this ASIN reinstated in their inventory and they are listing it once again. If you should ·e xperience any similar issues such as this in the foture you can resolve it by emailing no ti ce@amazon.com<mail to:no tice@amazon.com> or no ti ce-dispute<@amazon.com<mailto:notice- d ispute<@amazon.com> as you did this time. Executive Seller Relations is not able to any action on these types of requests and they should be directed to the email address provided for a resolution. Please do not hesitate to respond to this email if you have any further questions or concerns regarding this issue. Have a great day. Please let us know how we did. Were you satisfied with the support provided? Yes<https://www.arnazon.com/gp/r.html?C=Z8KB6HWUSXQA&R=2ZMOWR6UKXFJJ&T=C&U=https%3 2 KANGAROOM0003 - 00000~ 2 A %2F%2Fsellercentral .amazon.com%2Fhz%2Fcase- dashboard%2Fhmd%3 Fp%3DA2TAJMHMNCCOKS%26c%3D223 7989431 %26k%3Dhy%26ref %3 Dpe 242 2930 159151540&A=PJZ3BPAUA4KN44EHF52FLF6ZLLIA&H=EDKNHTKKDCXS1IAI3KE6BVQ7WAK 1 A&ref =pe 2422930 159151540> No<https://www.amazon.com/gp/r.html?C=Z8KB6HWUSXQA&R =2ZMOWR6UKXFJJ&T=C&U=https%3A%2F%2Fsellercentra1.amazon.com%2Fhz%2Fcase- dashboard%2Fhmd%3Fp%3DA2TAJMHMNCCOKS%26c%3D2237989431 %26k%3Dhn%26ref %3Dpe 242. 2930 159 l 51540&A=UKTIC20GG7GQCFOCXKS7NXZQOAKA&H=9EM32M3QAJEJZM9AHDAJRMEP VXGA&ref=pe 2422930 159151540> Thank you! To view your case details, or respond, please click http://sellercentral.amazon.com/gp/case-dashboard/view- case.html/ref=sc cd lobby vc?caseID=2237989431 Please note: this e-mail was sent from an address that cannot accept incoming e-mail. If you require additional support please contact us https://sellercentral.amazon.com/hz/contact-us Best regards, Zack H. Amazon.com<http://amazon.com/> Executive Seller Relations Thanks for contacting Amazon.com<http://amazon.com/> Seller Relations. [https://www.amazon.com/gp/r.html?C=Z8KB6HWUSXQA&R=2ZMOWR6UKXFJJ&T=E&U=https%3A%2 F%2 Fimages-na. ssl-images- anmzon .com%2Fimages%2FG%2FO 1%2Fnav%2Ftransp.gif&A=64ECBOXXOKDKWPTNNAHKVWL 1COIA &H=UXHMQFZWA9LOZ3WHXMFDLQOGTVAA] .· 3 KANGAROOM0003 - 000003 2 ATKINSON, BLAKE Subject: RE: Your Amazon Enquiry F rom: notice@amazon.com Date: July 12, 2017 at 6:51:09 AM PDT To: dschnider@nolanheimann.com Subject: Your Amazon Enquiry Reply-To: notice+A472D31)3711KL@amazon.com Hello~ We reviewed your report and removed the following content based on the info1mation you provided. ASIN: B06XB5LD52 Title: Assortmart Emoji Beach Balls Inflatable, Birthday Pool Pruty Toys, 24 Piece Complaint ID: 1012409541 Sincerely, Amazon.com From: dschnider@nolanheimann.com Sent: Monday, July 10, 2017 6:47 PM (PDT) Subject: Re: Your Amazon Enquiry Amazon: Thank you again for confirming that you will remove the infringing content. Bµryet again it remains up. lt has now been six days since you confirmed that you would remove the infringing content, yet it remains up on your site. Please note that by failing to remove the content, Amazon loses the protections of the sale hai·bor provisions of the DMCA and subjects itself to liability for. -· . contributory infringement. We again request that you remove the infringing content immediately. Regards, David Schnider David Schnider I Partner NOLAN HEI.MANN LLP [cid:image002.jpg(@,01Dl0 l 26.8CF92BEO] T. 818.574.5710 IM. 818.207.51341 dschnider@no lanheimann. com<mai Ito: dsclrnider@no lanheimann. corn> 1 KANGAROOM0003 - 000004 2 16133 Ventura Blvd., Ste. 820 !Encino, CA 91436 www.nolanheimann.com<http:l/wvvw.nolanheimann.comJ> On Jul 9, 2017, at 1:41 AM, notice@amazon.com<mailto:notice@amazon.com> wrote: Hello, We reviewed your report and removed the following content based on the information you provided. ASIN(s): B06XB5LD52 Title: Assortmart Emoji Beach Balls Inflatable, Birthday Pool Party Toys, 24 Piece Complaint ID: l 00910823 1 Sincerely, Amazon.com<http://Amazon.com> From: dschnicler@nolanheimann.com Sent: Friday, July 7, 2017 2:54 PM (PDT) Subject: Re: Your Amazon.com Inquiry Dear Amazon., thank you for your prompt response. However, despite your email below, the infringing content remains up. Please take it down. Kangaroo Manufacturing, Inc. holds a registered copyright in its original emoji designs, US Copyright Registration number VA-2-000-209. A copy of Kangaroo's registration certificate has been provided, along with the subject emoji designs. The product image contained on the item detail page for ASIN B06XB5LD52 contains copies of Kangaroo's original artwork that is the subject of the registration. That artwork is being used without permission and therefore constitutes an infringement of Kangaroo's copyrights. The info1mation contained in this notice is accurate. We are authorized to act on behalf of the rights owner and we have a good-faith belief that the use of the content is not authorized by the rights owner, its agent, or the law. Accordingly, pursuant to the DMCA, we request that Amazon remove the infringing content from the item detail page. Regards, David Schnider David Schnider I Partner NOLAN HEIMANN LLP [cid:image002.jpg@O 1D10 l 26.8CF92BEO] 2 KANGAROOM0003 - 000005 2 T. 818.574.5710 IM. 818.207.51341 dsch11ider@nolanheimann.com<mailto:dschnider@nolanheimann.com> 16133 Ventura Blvd., Ste. 820 !Encino, CA 91436 www.nolanheimann.com<http://www.nolanheimann.com/> On Jul 4, 2017, at 1: 13 PM, notice@amazon.com<mailto:notice@amazon.eom> wrote: Hello, Thank you for your message. The content that you reported as IP infringement has been removed from Amazon.com<http://Amazon.com> - Sincer,ely, Amazon.com<http://Amazon.com> From: dschnider@ nolanheimann.com Sent: Monday, July 3, 2017 10:54 PM (PDT) Subject: Re: Your Report of Rights Infringement on Amazon.com Kangaroo Manufacturing, Inc. holds a registered copyright in its original emoji designs, US Copyright Registration number VA-2-000-209. A copy of Kangaroo's registration certificate is attached, along with the subject emoji designs. The product image contained on the item detail page for ASIN B06XB5LD52 contains copies of Kangaroo's original artwork that is the subject of the attached registration. That miwork is being used without pem1ission and therefore constitutes an infringement of Kangaroo's copyrights. The information contained in this notice is accurate. We are authorized to act on behalf of the rights owner and we have a good-faith belief that the use of the content is not authorized by the rights owner, its agent, or the law. Accordingly, pursuant to the DMCA, we request that Amazon remove the infringing content from the item detail page. [cid:aefl cb4b-Ob0b-456f-868e-4 l 81 b3a0285b@namprd03.prod.outlook.com] David Schnider I Partner NOLAN HEIMANN LLP [cid:d4a29335-20f9-46ef-b9b4-80955d lfb5 l l (a{namprd03.prod.outlookcom] T. 818.574.5710 IM. 818.207.5134! dschni der@nolanhei.ma.nn .com<mail to: dschnider@no lanhei mann. com> 16133 Ventura Blvd., Ste. 820 \Encino, CA 91436 www.nolanheimann.com<http://www.nolanheimann.com/> 3 KANGAROOM0003 - 000006 2 On Jul 3, 2017, at 6:42 PM, notice@amazon.com<mailto:notice@amazon.com> wrote: Hello. Based on the infonnation you provided, we cannot take action on or complete any requests in your report for the reasons listed below. --Identification of the Copyright asserted, description of your work or URL might apply. ASIN: B06XB5LD52 Title: Assortma:rt Emoji Beach Balls Inflatable, Birthday Pool Party Toys, 24 Piece Comp laint ID: J 004329891 Sincerely, '. 4 KANGAROOM0003 - 000007

DECLARATION of Ella Irwin in Support of Amazon's Motion for Partial Summary Judgment by Defendant Amazon.com Incorporated.

1 DAVIS WRIGHT TREMAINE LLP John A. Goldmark (admitted pro hac vice) 2 Max B. Hensley (admitted pro hac vice) 1201 Third Avenue, Suite 2200 3 Seattle, WA 98101-3045 Tel: (206) 622-3150; Fax: (206) 757-7700 4 Email: johngoldmark@dwt.com maxhensley@dwt.com 5 Attorneys for Defendant 6 7 8 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA 9 1O Kangaroo Manufacturing, Inc., a Florida corporation, No. 2:17-cv-01806-SPL 11 Plaintiff, DECLARATION OF ELLA IRWIN 12 v. IN SUPPORT OF AMAZON'S MOTION FOR PARTIAL 13 Amazon.com, Inc., a Delaware corporation, SUMMARY JUDGMENT 14 Defendant. 15 Ella Irwin declares as follows: 16 1. I am the Director of Marketplace Abuse at Amazon. In this position, I 17 oversee Amazon' s efforts to prevent and respond to actions and policy violations that 18 affect trust in the Amazon marketplace. My role includes preventing sellers and brands 19 from experiencing impacts of market place abuse, which includes enforcement of 20 Amazon's policies against infringement and responding to reports of infringement. 21 Based on my review of Amazon's business records and my job responsibilities, I am 22 familiar with the information discussed in this declaration. I make this declaration based 23 on personal knowledge and Amazon's records kept in the ordinary course of business, 24 and on information obtained by other Amazon personnel in the course of their duties. I 25 am competent to testify as to the matters stated here. 26 DECLARATION OF ELLA IRWIN - 1 Davis Wright Tremaine LLP L AW O FF ICES Case No. 2.Ll 7-cv-01806-SPL 120 1 Third Avenue, Suil e 2200 4815-5576-7404v.3 005 1461-001587 Scatl lc. WA 98IOl-3045 206 .622 .3 150 main · 206. 757.7700 fax 1 2. Amazon operates the Amazon.com website and is the world' s largest 2 online retailer, with the mission of being the world' s most customer-centric company. 3 3. In addition to selling its own inventory of products directly to consumers, 4 Amazon allows third parties to register as se1lers on the Amazon marketplace. Sellers 5 pay Amazon fees and, in exchange, receive the benefit of reaching customers through the 6 Amazon site. Third-party sellers create their own listings for products they wish to sell, 7 set their own prices, and obtain their own inventory. Multiple third-party sellers, in 8 addition to Amazon, may list the sai:ne product for sale from a single product page on the 9 site. The product page discloses the identity of the seller, so a customer knows whether 1O it is purchasing from Amazon or a third-party seller. When a customer purchases from a 11 third-party seller, Amazon's role is to process the transaction and collect a referral fee 12 from the seller. Sales by third parties are referred to as "third-party sales," and sales by 13 Amazon are referred to as "Amazon retail sales." 14 4. When a seller registers to sell on Amazon, it agrees to the terms of the 15 Amazon Services Business Solutions Agreement ("BSA" or "the Agreement"), and the 16 policies incorporated by the Agreement. A true and correct copy of the BSA is attached 17 as Exhibit A. 18 5. Third-party sellers may choose to participate in the "Fulfillment by 19 Amazon" ("FBA") program. In exchange for fees, the FBA program allows sellers to 20 ship their inventory to be stored at Amazon's fulfillment centers. The amount of fees 21 charged depends on the weight and dimensions of a product. When a customer orders a 22 product from the seller on Amazon.com, Amazon then packages and ships the seller' s 23 product to the customer. Amazon never takes title to the third-party seller' s inventory. 24 Attached as Exhibit B is a true and correct copy of a page from Amazon.com describing 25 the FBA program. 26 DECLARATION OF ELLA IRWlN - 2 Davis Wright Tremaine LLP LA W 0 Fl7 1CE S Case No. 2.L17-cv-01806-SPL 120 1 Third Avenue, Suite 2200 4815-5576-7404v.3 0051461-001587 Seattle, WA 98 101 -3045 206.622 .3 I SO main · 206.757 .7700 fax 1 6. Yagoozon, Inc., a/k/a Pennies2Platinum, Inc., a/k/a Pennies2Platinum 2 Business Solutions, Inc. ("P2P") sold products through Amazon's third-party seller 3 marketplace until Amazon blocked the P2P account in response to conduct including 4 abuse of other sellers and manipulation of product reviews to inflate sales. P2P sold 5 products through Amazon's FBA program. P2P agreed to Amazon's seller agreement, 6 the BSA. 7 7. Kangaroo is not and has never been an Amazon seller. 8 8. Amazon has a process by which any party can report infringement of 9 intellectual property on the Amazon marketplace. Attached as Exhibit C is a true and 1o correct copy of a page from the Amazon site where rights owners can report 11 infringement, titled "Report Infringement." This page is publically available and can be 12 found here: https://www.amazon.com/report/infringement. This process allows rights 13 owners to submit "notice and take down" requests under the Digital Millennium 14 Copyright Act, 17 U.S.C. § 512. Amazon's notice and take down team is a group of 15 Amazon employees dedicated to working with rights owners who allege that third-party 16 sellers or Amazon violated their intellectual property rights. Rights owners may submit 17 their complaints to www.amazon.com/report/infringement or by emailing the notice and 18 take down team directly at notice-dispute@amazon.com, notice@amazon.com, or 19 copyright@amazon.com. 20 9. Amazon takes product authenticity very seriously. Attached as Exhibit D 21 is a true and correct copy of a page from the Amazon site entitled "Amazon Anti- 22 Counterfeiting Policy." 23 10. Each product sold on Amazon.com has a single "product detail page." The 24 detail page is essentially the homepage for a particular product, displaying the product 25 and describing its specifications. Each seller of the product sells it from the same detail 26 page. So i~ a customer searches for a certain product, Amazon will bring up a single DECLARATION OF ELLA IRWIN - 3 Davis Wright Tremaine LLP LAW OFF ICES Case No. 2.L 17-cv-O 1806-SPL 120 I Third A venue, Suire 2200 4815-5576-7404v.3 0051461-001587 Seattle, WA 98101-3045 206 .622 .J 150 main. 206. 757. 7700 rax 1 page to display for each of the different sellers ' product offerings. Each separate seller's 2 offering of the product is referred to as its "listing." 3 11. Amazon' s publically available seller help pages explain how the content of 4 a detail page is developed. Attached as Exhibit E is a true and correct copy of a help 5 page titled "Product detail pages and offers," which is also publically available here: 6 https://sellercentral.amazon.com/gp/help/external/help- 7 page.html?itemID=51&1anguage=en US&ref=efph 51 bred 200335450. Attached as 8 Exhibit F is a true and correct copy of an Amazon seller help page titled "Correct an 9 Error on a Product Detail Page," which is also publically available here: 10 https://sellercentral.amazon.com/gp/help/external/200335450?language=en- ll US&ref=mpbc 200202 130 cont 200335450). Amazon chooses what information to 12 include on the product detail page based on manufacturer and seller contributions. There 13 is no guarantee the information provided by any particular seller will show on the detail 14 page. Amazon's seller agreement does not entitle sellers or their suppliers to control the 15 detail page. Detail page content is processed and selected from third-party contributions 16 automatically by Amazon's system. 17 12. I understand Kangaroo has narrowed its copyright and trademark. 18 infringement claims in this case to four products: (1) -Kangaroo King' s Crown, Gold 19 (ASIN B00017SZ6Y); (2) Kangaroo Adjustable Adult Captain's Yacht Cap, White 20 (ASIN B00018DY10); (3) Emoji Universe: 12" Emoji Inflatable Beach Balls, 12-Pack 21 (ASIN B0182WBENE); (4) Emoji Universe Series One: Latex Emoji Smiley Face 22 Balloons 72 Pack Yellow (ASIN B01832S51C) ("Accused Products"). Amazon did not 23 contribute content to the detail page for any of these products. The primary contributor 24 of information for these products was P2P. 25 13. Each detail page contains a clickable "Add to Cart" button, called the "Buy 26 Box," which customers can use to add an item to their shopping carts. Attached as DECLARATION OF ELLA IRWIN -4 Davis Wright Tremaine LLP LA IV O FFI CES Case No. 2.Ll 7-cv-01806-SPL 1201 Third Avenue, Suite 2200 48 15-5576-7404v.3 0051461-001587 Seattle, WA 9810 1-3045 206.622 .3150 main 206.75 7.7700 fax 1 Exhibit G is a true and correct copy of an Amazon seller help page titled "Become Buy 2 Box eligible." Attached as Exhibit His a true and correct copy of an Amazon seller 3 help page titled "Buy Box product placement." When multiple sellers sell the same 4 product from a detail page, only one may be awarded the Buy Box, which makes that 5 seller' s item the default on the product page, increasing the seller's chances of selling 6 that item. The product detail page will say that it is "sold by" whichever seller is 7 winning the Buy Box at that time. The listings of other sellers with the product in stock 8 remain available under the link on the detail page that says "New & Used from" or 9 "Other Sellers on Amazon." To ensure the best customer experience, only professional 1o sellers who meet certain performance based requirements are eligible for the Buy Box. 11 If multiple sellers are eligibl,e, then the sellers compete for the Buy Box, which is 12 awarded to the best performing seller. Amazon may win the Buy Box like any other 13 seller. 14 14. Amazon has provided Kangaroo with updated sales data of the Accused 15 Products (AMZ-KANGAR0000002831), which shows total sales of$249,981, ofwhich 16 $90,234 is third-party sales. 17 18 I declare under penalty of perjury under the laws of the United States that the 19 foregoing is true and correct to the best of my knowledge and belief. 20 Executed this / 3 day of July, 2018, at Seattle, Washington. 21 22 23 24 25 26 DECLARATION OF ELLA IRWIN - 5 Davi s Wri ght Tremaine LLP LAW O FFICES Case No. 2.Ll7-cv-01806-SPL 1201 Third Avenue, Suite 2200 4815-5576-7404v.3 0051461-001587 Seattle. WA 9810 1-3045 206.622.3 150 main · 206. 757. 7700 fax

Exhibit A

9 Exhibit A 9 Amazon Services Business Solutions Agn:?<!ment General Terms Welcome to Amazon Services Business Solutions, a suite of optional services for sellers including: Selling on Amazon, Amajm n Webst.or.e, Eylflllment by Amazon, Prodyct Acts, and I@_nsil.QUQ.n processing Services. THIS AMAZON SERVICES BUSINESS SOLUTIONS AGREEMENT (THE "AGREEMENT") CONTAINS THE TERMS AND CONDITTONS THAT GOVERN YOUR ACCESS TO AND USE OF THE SERVICES AND IS AN AGREEMENT BElWEEN YOU OR THE BUSINESS YOU REPRESENT AND AMAZON. BY REGISTERING FOR OR USING THE SERVICES, YOU (ON BEHALF OF YOURSELF OR THE BUSINESS YOU REPRESENT) AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, INCLUDING THE SERVICE TERMS AND PROGRAM POLICIES THAT APPLY FOR EACH COUNTRY FOR WHICH YOU REGISTER OR ELECT TO USE A SERVICE (IN EACH CASE, THE " ELECTED COUNTRY"). As used in this Agreement, "we, " "us, " and "Amazon " means the applicable Amazon Contracting Party and any of its applicable Affiliates, and "you" means the applicant (if registering for or using a Service as an individual), or the business employing the applicant (if registering for or using a Service as a business) and any of its Affiliates. capitalized terms have the 1T1eanings given to them in tl'lis Agreement. If there is a conflict among terms in this Agreement, the Program Policl es will prevail over any applicable Service Terms and the General Terms, and the applicable Service Terms will prevail over the General Terms. 1. Enrollment. To begin the enrollment process, you must complete the registration process for one or more of the Services. Use of the Services is llmlted to parties that can lawfully enter into and form contracts under applicable law (for example, the Elected Country may not allow minors to use the Services). As part of the application, you must provide us with your (or your business') legal name, address, phone number and e-mail address. We may at any time cease providing any or all of t he Services at our sole discretion and without notice. 2. Service Fee Payments; Receipt of Sales Proceeds. Fee details are described in the applicable Service Terms and Program Policies. You are responsible for all of your expenses in connection with this Agreement. To use a Service, you must provide us with valid credit card information from a credit card or credit cards acceptable by Amazon ("Your Credit Card") as well as valid bank account information for a bank account or bank accounts acceptable by Amazon (conditions for acceptance may be modified or discontinued by us at any time without notice) ("Your Bank Account") . You will use only a name you are authorized to use in connection with a AMAZON CONFIDENTIAL 1 AMZ-KANGAR0000000001 9 Service and will update all of the information you provide to us in connection with the Services as necessary to ensure that it at all times remains accurate, complete and valid. You authorize us (and will provide us documentation evidencing your authorization upon our request) to verify your information (including any updated information), to obtain credit reports about you from time to time, to obtain credit aut horizations from the issuer of Your Credit card, and to charge Your Credit Card or debit Your Bank Account for any sums payable by you to us (in reimbursement or otherwise). All payments to you will be remitted to Your Bank Account through a banking network or by other means specified by us. For any amounts you owe us, we may (a) charge Your Credit Card or any other payment instrument you provide to us; (b) offset any amounts that are payable by you to us (in reimbursement or otherwise) against any payments we may make to you; (c) invoice you for amounts due to us, in which case you will pay the invoiced amounts upon receipt; (d) reverse any credits to Your Bank Accounti or (e) collect payment or reimbursement from you by any other lawful means. Except as provided otherwise, all amounts contemplated in this Agreement will be exp ressed and displayed in the L·ocal Currency, and all payments contemplated by this Agreement will be made in the Local Currency. If we discover erroneous or duplicate transactions, then we reserve the right to seek reimbursement from you by deducting from future payments owed to you, charging Your Credit Card, or seeking such reimbursement from you by any other lawful means. IF WE DETERMINE THAT YOUR ACTIONS OR PERFORMANCE MAY RESULT IN RETURNS, CHARGEBACKS, CLAIMS, DISPUTES, OR OTHER RISKS, THEN WE MAY IN OUR SOLE DISCRETION WITHHOLD ANY PAYMENTS TO YOU UNTIL THE COMPLETION OF ANY RELATED INVESTIGATION. IF WE DETERMINE THAT YOUR ACCOUNT HAS BEEN USED TO ENGAGE IN DECEPTIVE, FRAUDULENT, OR ILLEGAL ACTIVITY, THEN WE MAY IN OUR SOLE DISCRETION PERMANENTLY WITHHOLD ANY PAYMENTS. As a security measure, we may, but are not required to, impose transaction limits on some or all customers and sellers relating to t he value of any transaction or disbursement, the cumulative value of all transactions or disbursements during a period of time, or the number of transactions per day or other period of time. We will not be liable to you: (i) if we do not proceed with a transaction or disbu rsement that would exceed any limit established by us for a securit y reason, or (ii) if we permit a customer to withdraw from a transaction because an Amazon Site or Service is unavailable following the commencement of a transaction. 3. Te rm and Termination. The term of this Agreement wil l start on the date of your completed registration for or use of a Service, whichever occurs first, and continue until terminated by us or you as provided in this Agreement (the "Term"). We may terminate or suspend this Agreement or any Service for any reason at any time by notice to you. You may terminate this Agreement or any Service or the Promotion Site for any reason at any time by the means then specified by Amazon. Termination or AMAZON CONFIDENTIAL 2 AMZ-KANGAR0 0 00000002 9 suspension of a Service will not terminate or suspend any other Service unless explicitly p rovided. Upon termination, all rights and obligations of the parties under this Agreement will terminate, except that Sections 2. 3. 4. 5. 6. 7. 8. 9. 11. 14. 15. 16 and .1.8 will survive termination. Any terms that expressly survive according to the applicable Service Terms will also survive termination. 4. License. You grant us a royalty-free, non-exclusive, worldwide, perpetual, irrevocable right and license to use, reproduce, perform, display, distr ibute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all of Your Materials, and to sublicense the foregoing rights to our Affiliates and operators of Amazon Associated Properties; provided, however, that we will not alter any of Your Trademarks from the form provided by you (except to re-size trademarks to the extent necessary for presentation, so long as the relative proportions of such trademarks remain the same) and will comply with your removal requests as to specific uses of Your Trademarks (provided you are unable to do so using standard functionality made available to you via the applicable Amazon Site or Service); provided further, however, that nothing in this Agreement will prevent or impair our right to use Your Materials without your consent to the extent that such use is allowable without a license from you or your Affiliates under appli,cable law (e.g., fair use under United States copyright law, referential use under trademark law, or valid license from a third party) . 5. Representations. You represent and warrant to us that: (a) if you are a business, you are duly organized, validly existing and in good standing under the Laws of the country in which your business is registered and that you are registering for the Service(s) within such country; (b) you have all requisite right, power and authority to enter into this Agreement, perform your obligations, and grant the rights, licenses and authorizations in this Agreement; (c) any information provided or made available by you or your Affiliates to Amazon or its Affiliates is at all times accurate and complete; and (d) you and all of your subcontractors, agents and suppliers will comply with all applicable Laws in your performance of your obligations and exercise of your rights under this Agreement. 6. Indemnification. You release us and agree to indemnify, defend and hold harmless us, our Affiliates, and our and their respective officers, directors, employees, representatives and agents against any claim, loss, damage, settlement, cost, expense or other liability (including, without limitation, attorneys' fees) (each, a "Claim") arising from or related to: (a) your actual or alleged breach of any obligations in this Agreement; (b) any of Your Sales Channels other than Amazon Sites and Amazon Associated Properties, Your Products (including their offer, sale, performance and fulfillment), Your Materials, any actual or alleged infringement of any Intellectual Property Rights by any of the foregoing, and any AMAZON CONFIDENTIAL 3 AMZ-KANGAR0000000003 9 personal injury, death or property damage related thereto; (c) Your Personnel (including any act or omission of Your Personnel or any Oaim brought or directed b y Your Personnel); or (d) Your Taxes. You will use counsel reasonably satisfactory to us to defend each indemnified Claim. If at any time we reasonably determine that any indemnified Clai m might adversely affect us, we may take control of the defense at our expense. You may not consent to the entry of any judgment or enter into any settlement of a Clai m without our prior written consent, which may not be unreasonably withheld. 7. Disclaimer & General Release. a. THE AMAZON SITES AND THE SERVICES, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS AND INFORMATION MADE AVAILABLE ON OR PROVIDED IN CONNECTION WITH THE SERVICES, ARE PROVIDED "AS-IS." AS A USER OF THE SERVICES, YOU USE THE AMAZON SITES, THE SERVICES AND SELLER CENTRAL AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WE AND OUR AFFILIATES DISCLAIM: (i) ANY REPRESENTATIONS OR WARRANTIES REGARDING THIS AGREEMENT, THE SERVICES OR THE TRA.NSACTIONS CONT EMPLATED BY THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON- INFRINGEMENT; (ii) IMPLIED WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE; AND (iii) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM OUR NEGLIGENCE. WE DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE AMAZON SITES AND THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE, TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, AND WE WILL NOT BE LIABLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING BUT NOT LIMITED TO SYSTEM FAILURES OR OTHER INTERRUPTIONS THAT MAY AFFECT IHE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION OR SETTLEMENT OF ANY TRANSACTIONS. b. BECAUSE AMAZON IS NOT INVOLVED IN TRANSACTIONS BETWEEN CUSTOMERS AND SELLERS OR OTHER PARTIOPANT DEALINGS, IF A DISPUTE ARISES BETWEEN ONE OR MORE PARTIOPANTS, EACH PARTICIPANT RELEASES AMAZON (AND ITS AGENTS AND EMPLOYEES) FROM CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED ANO UNSUSPECTED, D1SCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. 8. Limitation of Liability. WE WILL NOT BE LIABLE (WHETHER TN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHER THEORY) OR OTHERWISE) TO YOU OR ANY OTHER PERSON FOR COST OF COVER, RECOVERY OR RECOUPMENT OF ANY INVESTMENT MADE BY YOU OR YOUR AFFILIATES IN CONNECTION WITH THIS AGREEMENT, OR FOR ANY LOSS OF PROFIT, REVENUE, BUSINESS, OR DAliA OR PUNffiVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF AMAZON HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE COSTS OR DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AMAZON CONFIDENTIAL 4 AMZ-KANGAR0000000004 9 AGREEMENT OR THE TRANSACT10NS CONTEMPLATED WILL NOT EXCEED AT ANY TIME THE TOTAL AMOUNTS DURING THE PRIOR SIX MONTH PERIOD PAID BY YOU TO AMAZON IN CONNECTION WITH THE PARTICULAR SERVICE GIVING RISE TO THE CLAIM. 9. Insurance. If the gross proceeds from Your Transactions exceed the applicable Insurance Threshold during each month over any per iod of three (3) consecutive months, or otherwise if requested by us, then within thirty (30) days thereafter, you Will maintain at your expense throughout the remainder of the Term for each applicable Elected Country commercial general, umbrella or excess liability insurance with the Insurance Limits per occurrence and in aggregate covering liabilities caused by or occurring in conjunction with the operation of your business, includlng products, products/completed,operations and bodily Injury, with policy(ies) naming Amazon and its assignees as additional insureds. At our request, you will provide to us certificates of insurance for the coverage to the following address: c/ o Amazon, P.O. Box 8 1226, Seattle, WA 98108-1226, Attention: Risk Management. 10. Tax Matters. As between the parties, you wil l be responsible for the collection, reporting and payment of any and all of Your Taxes, except to the extent Amazon expressly agrees to receive taxes or other transaction- based charges in connection with tax calculation services made available by Amazon and used by you. You agree to and wil l comply with the Tax Policies. All fees payable by you to Amazon under this Agreement or the applicable Service Terms are exclusive of any applicable taxes, and you will be responsible for paying Amazon any of Your Taxes imposed on such fees. 11. Confidentiality. During the course of your use of the Services, you may receive information relating to us or to the Services, including but not limited to Amazon Transaction Information, that is not known to the general public ("Confidential Information''). You agree that: (a) all Confidential Information will remain Amazon's exclusive property; (b) you will use Confidential Information only as is reasonably necessary for your participation in the Services; (c) you will not otherwise disclose Confidential Information to any other Person; and (d) you will take all reasonable measures to protect the Confidential Information against any use or disclosure that is not expressly permitted in this Agreement. You may not issue any press release or make any public statement related to the Services, or use our name, trademarks or logo, in any way (including in promotfonal material) without our advance written permission, or misrepresent or embellish the relationship between us in any way. 12. Force Majeure. We will not be liable for any delay or failure to perform any o'f our obligations under this Agreement by reasons, events or other matters beyond our reasonable control. AMAZON CONFIDENTIAL 5 AMZ-KANGAR0000000005 9 13. Relationship of Parties. Subject to the Transaction Processing Service Terms (if the Elected Country for a Service is the United States), you and we are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between us. You will have no authority to make or accept any offers or representations on our behalf. This Agreement will not create an exclusive relationship between you and us. Nothing expressed or mentioned in or implied from this Agreement is intended or will be construed to give to any person other than the part ies to this Agreement any legal or equitable right, remedy, or claim under or in respect to this Agreement. This Agreement and all of the representations, warranties, covenants, conditions, and provisions in this Agreement are intended to be and are for the sole and exclusive benefit of Amazon, you, and customers. As between you and us, you will be solely responsible for all obligations associated with the use of any third party service or feature that you permit us to use on your behalf1 including compliance with any app~ icable terms of use. You will not make any statement1 whether on your site or otherwise, that would contradict anything in this section. 14. Use of Amazon Tra nsaction Information. You will not, and will cause your Affiliates not to, directly or i111directly: (a) disclose any Amazon Transaction Information (except that you may disclose that information solely as necessary for you to perform your obligations under this Agreement if you ensure that every recipient uses the information only for that purpose and complies with the restrictions applicable to you related to that i·nformation); (b) use any Amazon Transaction Information for any marketing or promotional purposes whatsoever, or otherwise in any way inconsistent with our or your privacy policies or applicable Law; (c) contact a Person that has ordered Your Product with the intent to collect any amounts in connection therewith or to influence that Person to make an alternative transaction; (d) disparage us, our Affiliates, or any of their or our respective products or services or any customer; or (e) target communications of any kind on the basis of the intended recipient being an Amazon Site user. In addition, you may only use tools and methods that we designate to communicate with Amazon Site users regarding Your Transactions, including for the purpose of scheduling, communicating, or cancelling the fulfillment of Your Products. The terms of this Section 14 do not prevent you from using other information that you acquire without reference to Amazon Transaction Information for any purpose, even if that information is identical to Amazon Transaction Information, provided that you do not target communications on the basis of the intended recipient being an Amazon Site user. 15. Suggestions and Othe r Information. If you or any of your Affiliates elect to provide or make available suggestio111s, comments, ideas, improvements, or other feedback or materials to us in connection with or related to any Amazon Site or Service (including any related Technology), we will be free to use, disclose, reproduce, modify, license, transfer and otherwise distribute, and exploit any of the foregoing information or materials in AMAZON CONFIDENTIAL 6 AMZ-KANGAR0 0 00000006 9 any manner. In order to cooperate with governmental requests, to protect our systems and customers, or to ensure the integrity and operation of our business and systems, we may access and disclose any information we consider necessary or appropriate, including but not limited to user contact details, IP addresses and traffic information, usage history and posted content. 16. Modification. We may amend any of the terms and conditions contained in this Agreement at any time and at our sole discretion. Any changes will be effective upon the posting of such changes on Seller Central or on the applicable Amazon Site, and you are responsible for reviewing these locations and informing yourself of all applicable changes or notices. All notice of changes to the General Terms and the Service Terms will be posted for at least 30 days. Changes to Program Policies may be made without notice to you. You should refer regularly to Seller Central to review the current Agreement (including the Service Terms and Program Policies) and to be sure that the items you offer can be offered via the applicable Service. YOUR CONTINUED USE OF A SERVICE AFTER AMAZON'S POSTING OF ANY CHANGES WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES OR MODIFICATIONS. 17. Password Security. Any password we provide to you may be used only during the Term to access Seller Central (or other tools we provide) to use the Services, electronically accept Your Transactions, and review your completed transactions. You are solely responsible for maintaining the security of your password. You may not disclose your password to any third party (other than third parties authorized by you to use your account in accordance with this Agreement) and are solely responsible for any use of or action taken under your password. If your password is compromised, you must immediately change your password. 18. Miscellaneous. The Governing Laws will govern this Agreement, without reference to rules governing choice of laws or the Convention on Contracts for the International Sale of Goods. If the Elected Country is Japan, Amazon and you both consent that any dispute with Amazon or its Affiliates or claim relating in any way to your use of the Services or this Agreement as it relates to your use of the Services in Japan will be adjudicated in the Governing Courts, and you consent to exclusive jurisdiction and venue in the Governing Courts. If the Elected Country is the United States, Canada or Mexico, Amazon and you both consent that any dispute with Amazon or its Affiliates or claim relating in any way to this Agreement or your use of the Services will be resolved by binding arbitration as described in this paragraph, rather than in court, except that (i) you may assert claims in a small claims court that is a Governing Court if your claims qualify and (i i) you or we may bring suit in the Governing Courts, submitting to t he jurisdiction of the Governing Courts and waiving our respective rights to any other jurisdiction, to enjoin infringement or other misuse of intellectual property rights. AMAZON CONFIDENTIAL 7 AMZ-KANGAR0000000007 9 Ther·e is no judge or jury in arbitration, and court review of an arbitration award is limited. Howe ver, a n arbitrator can award on an individual basis the same damages and relief as a court {including injunctive and declaratory relief or st aitutory damages}, a nd must follow the terms of this Agreement as a court would. To begin an arbitration proceeding, y·o u must send a letter requesting arbitration and describing your claim to our registered agent, CSC Services of Nevada, Inc., 2215- B Renaissance Drive, Las Vegas, NV 89119. The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, including the AAA's Supplementary Procedures for Consumer-Related Disputes. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. We will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, Amazon will not seek attorneys' fees and costs from you in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the ar bitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. Amazon and you each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidate d or represe ntative action. If for any reason a claim proceeds in court rather than in arbitration Amazon and you each waive any right to a jury trial. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to, and be enforceable against the parties and their respective successors and assigns. We may perform any of our obligations or exercise any of our rights under this Agreement through one or more of our Affiliates. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to enforce such provision or any other provision of this Agreement subsequently. We have the right in our sole discretion to determine the content, appearance, design, functionality and all other aspects of the Services, including by redesigning, modifying, removing, or r·e stricting access to any of them. Because Amazon is not your agent (except for the limited purpose set out in t he Transaction Processing Service Terms (if the Elected Country for a Service is the United States)), or the customer's agent for any purpose, Amazon will not act as either party's agent in connection with resolving any disputes between participants related to or arising out of any transaction. We will send all notices and ot her communications regarding this Agreement to you at the e-mail addresses you designated for notifications and updates in your program application or within Seller Central, or by any other means t hen specified by Amazon. We may also communicate wilth you electronically and in other media, and you consent to such communications regardless of any "E-mail Preferences" (or similar preferences or requests) you may have indicated on the applicable Amazon Site, on Seller Central, or by any other means. You may change your e-mail addresses and certain other information in Seller Central. You will ensure that all of your information is up to date and AMAZON CONFIDENTIAL 8 AMZ-KANGAR0000000008 9 accurate at all times. You must send all notices and other communications relating to Amazon to our Merchant Services Team by using the Contact Us form. This Agreement incorporates and you accept the applicable Service Terms and Program Policies, which Amazon may modify from time to time. If any provision of this Agreement is deemed unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these terms and conditions and will not affect the validity and enforceability of any remaining provisions. If the Elected Country is Canada, then it is the express wish of the parties that this Agreement and the applicable Service Terms and Program Policies have been drafted in English. (The following is a French translation of the preceding sentence: Si le pays de service est le Canada, les parties conviennent que la presente autorisation et taus les termes et conditions applicables s'y rattachant soient rediges en anglais.) If the Elected Country is any country other than Japan, we may make available translations of this Agreement and the applicable Service Terms and Program Policies, but the English version will control. This Agreement represents the entire agreement between the parties with respect to the Services and related subject matter and supersedes any previous or contemporaneous oral or written agreements and understandings. Definitions As used in this Agreement, the following terms have the following meanings: " Affiliate" means, with respect to any entity, any other entity that directly or indirectly controls, is controlled by, or is under common control with that entity. "Amazon Associated Properties" means any website or other online point of presence, mobile applicatlon, service or feature, other than an Amazon Site, through which any Amazon Site, any Webstore Site, or products or services available on any of them, are syndicated, offered, merchandised, advertised or described. "Amazon Contracting Party" means the party outlined below. • If the Elected Country is Canada: Service Amazon Contracting Party Selling on Amazon Amazon Services International, Inc. s·e lling on Amazon (if your Amazon Services Contracts, Inc. account is enabled to list Optional Coverage Plans) Fulfillment by Amazon Amazon.com.ca, Inc. Product Ads Amazon Services International, lnc. AMAZON CONFIDENTIAL 9 AMZ-KANGAR0000000009 9 • If the Elected Country is Japan: Service Amazon Contracting Party Selling on Amazon Amazon Services International, Inc. Fulfillment by Amazon Amazon Japan Logistics K.K. Product Ads Amazon Services International, Inc. • If the Elected Country is Mexico: Service Amazon Contracting Party Selling on Amazon Servicios Comerciales Amazon Mexico S. de R.L. de C.V. Fulfillment by Amazon Servicios Comerciales Amazon Mexico S. de R.L. de C.V. • If the Elected Country is the United States: Service Amazon Contracting Party Selling on Amazon Amazon Services LLC Selling on Amazon (if your Amazon Services Contracts, Inc. account is enabled to list Optional Coverage Plans) Fulfillment by Amazon Amazon Services LLC Amazon Webstore Amazon Services LLC Product Ads Amazon Services LLC Transaction Processing Amazon Payments, Inc., provided that Services if you registered for or used a Service prior to June 30, 2014, then Amazon Services LLC may in its discretion perform the Transaction Processing Services AMAZON CONFIDENTIAL 10 AMZ-KANGAR0000000010 9 "Amazon Site" means, as applicable, the CA Amazon Site, the JP Amazon Site, the MX Amazon Site, or the US Amazon Site. "Amazon Transaction Information" means, collectively, Order Information and any other data or information acquired by you or your Affiliates from Amazon, its Affiliates, or otherwise as a result of this Agreement, the transactions contemplated by this Agreement, or the parties' performance under this Agreement. "CA Amazon Site" means that website, the primary home page of which is identifi,ed by the url www .amazon.ca, and any successor or replacement of such website. ''Content'' means copyrightable works under applicable Law. "Excluded Products" means the items described on the applicable Restricted Products pages in Seller Central, any other applicable Program Policy, or any other information made available to you by Amazon. "Governing Courts" means the applicable one of the following: the state or Federal court in King County, Washington (if the Elected Country is Ganada, Mexico or the United States), Tokyo District Court or Tokyo Summary Court depending upon the amount of the claim made (if the Elected Country is Japan). "Governing Laws" means the applicable one of the following: the laws of the State of Washington, United States together with the Federal Arbitration Act and other appllcable federal law (if the Elected Country is Canada, Mexico or the United States), the laws of Japan (if the Elected Country is Japan). "Insurance Limits" means the applicable one of the following: One Million Canadian Dollars ($1,000,000) (if the Elected Country is Canada), One Hundred Million Japanese Yen (¥100,000,000) (if tl1e Elected Country is Japan), Ten Million Mexican Pesos ($10,000,000) (if the Elected Country is Mexico), One Million U.S. Dollars ($1,000,000) (if the Elected Country is the United States). "Insurance Threshold'' means the applicable one of the following: Ten Thous.and Canadian Dollars ($10,000) (if the Elected Country is Canada), One Million Japanese Yen (¥1,000,000) (if the Elected Country is Japan), One Hundred Thousand Mexican Pesos ($100,000) (if the Elected Country is Mexico), Ten Thous.and U.S, Dollars ($ 10,000) (if the Elected Country is the United States). AMAZON CONFIDENTIAL 11 AMZ-KANGAR0000000011 9 "Intelle ctua l Prope rty Right " means any pat ent, copyright1 Trademark, domain name, moral right, trade secret right, or any other intellectual property right arising under any Laws and all ancillary and related rights, including all rights of registration and renewal and causes of action for violation, misappropriation oir infringement of any of the foregoing. "JP Ama zon Site" means that website, the primary home page of which is identified by the url www .amazon.co.jp, and any successor or replacement of such website. "Law " means any law, ordinance, rule, regulation, order, license, permit, j udgment, decision or other requirement, now or in the future in effect, of any governmental authority (e.g. on a federal, state, or provincial level, as applicable) of competent jurisdiction. ''Local Currency" means the applicable one of the following: U.S. Dollars (if t he Elected Country is the United States), Canadian Dollars (if the Elected Country is Canada), Mexican Pesos (if the Elected Country is Mexico), Japanese Yen (if the Elected Country is Japan). "MX Amazon Site" means that website, the primary home page of which is identified by the url www ..amazon.com.mx, and any successor or replacement of such website. "Optional Coverage Plans" means warranties, extended service plans and related offerings, in each case as determined by us, that you offer. "Order Information" means, with respect to any of Your Products ordered t hrough an Amazon Site or a Webstore Site, the order information and shipping information that we provide or make available to you. "Person" means any indlvidual, corporation, partnership, limited liability company, governmental authority, association, joint venture, division or other cognizable entity, whether or not h.a ving distinct legal existence. "Program Policies" means all terms, conditions, policies, guidelines, rules and other information on the applicable Amazon Site or on Seller Central, including tho se shown on the "Policies and Agreements" section of Seller Central or elsewhere in the "Help" section of Seller Central (and 1 for purposes of the Fulfillment by Amazon Service1 specifically including the FBA Guidelines). All Program Policies applicable to Webstore by Amazon also apply to Amazon Webstore, unless ot herwise specifically stated. "Promotion Site" means that ecomrnerce website, the primary home page of which is identified by the URL www.sellername.amazonwebstore.com 1 in which "sellername" is a name representing you that we elect to include in such URL. AMAZON CONFIDENTIAL 12 AMZ-KANGAR000000001 2 9 "Sales Proceeds" means the gross proceeds from any of Your Transactions, including al l shipping and handling, gift wrap and other charges, and including taxes and customs duties to the extent specified in the applicable Tax Policjes. "Se ller Central" means the on line portal and tools made available by Amazon to you, for your use in managing your orders, inventory and presence on a particular Amazon Site, a Webstore Site, or any other online point of presence. "Service " means each of the following services: Selling on Amazon, Amazon Webstore, !Fulfillment by Amazon, Product Ads, and, if the Elected Country for a Service is the United States, the Transaction Processing Services, together in each case with any related services and materials we make available. "Service Terms" means the service terms applicable to each Service, which are made part of this Agreement upon the date you elect to register for or use the applicable Service, and any subsequent modifications we make to those terms. "Technology " means any: (a) ideas, procedures, processes, systems, methods of operation, concepts, principles and discoveries protected or protectable under the Laws of any jurisdiction; (b) interfaces, protocols, glossaries, libraries, structured XML Formats, specifications, grammars, data formats, or other si milar materials; and (c) software, hardware, code, technology or other functional item. "Trademark" means any trademark, service mark, trade dress (including any proprietary "look and feel"), trade name, other proprietary logo or insignia or any other source or business identifier, protected or protectable under any Laws. "US Amazon Sit e " means that website, the primary home page of which is identified by tne url www .amazon.com, and any successor or replacement of such website. "W e bstore Serv ice" has the meaning described in the Webstore Service Terms. "We bstore Site" has tl1e meaning described in the Webstore Service Terms. "Your Mate rials" means all Technology, Your Trademarks, Content, Your Product information, data, materials, and other items or information provided or made available by you or your Affiliates to Amazon or its Affiliates. "Your Pe rsonne l" means any third party warranting, administering or otherwise involved in the offer, sale, performance or fulfillment of Your Products, including any of your employees, rep resentatives, agent s, contractors, or subcontractors. "Your Product" means any product or service (including Optional Coverage Plans) that: (a) you offer through the Webstore Service or t he Selling on Amazon Service; (b) is made available for advertising AMAZON CONFIDENTIAL 13 AMZ-KANGAR0000000013 9 by you through the Product Ads Service; or (c) is fulfilled or otherwise processed through the Fulfillment by Amazon Service. "Your Sales Channels" means all sales channels and other means through wh ich you or any of your Affiliates offers products or services, other than physical stores. "Your Taxes" means any and all sales, goods and services, use, excise, premium, import, export, value added, consumption and other taxes, regulatory fees, levies (specifica lly including environmental levies) or charges and duties assessed, incurred or required to be collected or paid for any reason (a) in connection with any advertisement, offer or sale of products or services by you on or through or in connection with the Services; (b) in connection with any products or services provided for which Your Products are, directly or indirectly, involved as a form of payment or exchange; or (c) otherwise in connection with any action, inaction or omission of you or your Affiliates, or any Persons providing products or services, or your or their respective employees, agents, contractors or representatives, for which Your Products are, directly or indirectly, involved as a form of payment or exchange. Also, if the Elected Country is the United States, Mexico or Canada, as it is used in the Fulfillment by Amazon Service Terms, this defined term also means any of the types of taxes, duties, levies or fees mentioned above that are imposed on or collectible by Amazon or any of its Affiliates in connection with or as a result of fulfillment services includi ng the storage of inventory or packaging of Your Products and other materials owned by you and stored by Amazon, shipping, gift wrapping or other actions by Amazon in relation to Your Products pursuant to the Fulfillment by Amazon Service Terms. "Your Trademarks" means Trademarks of yours that you provide to us: (a) in non -text form for branding purposes; and (b) separate from (and not embedded or otherwise incorporated in) any product specific information or materials. "Your Transaction" means any sale of Your Product(s) through an Amazon Site or any Webstore Site. AMAZON CONFIDENTIAL 14 AMZ-KANGAROOOOOOOO 14 9 Selling on Amazon Service Terms The Sellfng 011 Amazon Service {"Selling on Amazon") is a Service that allows you to offer certain products and services directly on the Amazon Sites (which, if the Elected Country is the United States, includes a Promotion Site that we may make available from time to time during the Term and on which certain of Your Products may be offered) . These Selling on Amazon Service Terms are part of the Agreement, but, unless specifically provided otherwise, concern and apply only to your participation in Selling on Amazon. BY REGISTERING FOR OR USING THE SEWNG ON AMAZON SERVICE, YOU (ON BEHALF OF YOURSELF OR THE BUSINESS YOU REPRESENT) AGREE TO BE BOUND BY THE AGREEMENT, INCLUDING THESE SELLING ON AMAZON SERVICE TERMS. NOTWITHSTANDING THE PREVIOUS SENTENCE, IF YOU HAVE ENTERED INTO A SEPARATE AGREEMENT liHAT PERMITS YOU TO OFFER YOUR PRODUCTS THROUGH A PARTICULAR AMAZON SITE (E.G., A MERCHANTS@ AMAZON.COM PROGRAM AGREEMENT, MERCHANTS @AMAZON.CO.JP PROGRAM AGREEMENT OR ANY PREDECESSOR OF THOSE AGREEMENTS), THEN TO THE EXTENT THAT YOU CONTINUE TO LIST AND SELL YOUR PRODUCTS ON THAT AMAZON SITE PURSUANT TO SUCH SEPARATE AGREEMENT, TRANSACTIONS OF YOUR PRODUCTS ON THAT AMAZON SITE AND ANY TAX SERVICES WE MAKE AVAILABLE UNDER THAT AGREEMENT ARE GOVERNED BY THE TERMS OF THAT AGREEMENT AND NOT BY THESE SELLING ON AMAZON SERVICE TERMS. S-1 Your Product listings and Orders S-1.1 Products and Product Information. You will provide in the format we require accurate and complete Required Product Information for each product or service that you offer through any Amazon Site and promptly update that information as necessary to ensure it at all times remains accurate and complete. You will also ensure that Your Materials, Your Products (including packaging) and your offer and subsequent sale of any of the same on any Amazon Site comply with all applicable Laws (including all minimum age, marking and labeling requirements) and do not contain any sexually explicit (except to the extent expressly permitted under our applicable Program Policies), defamatory or obscene materials. You may not provide any information for, or otherwise seek to offer any Excluded Products on any Amazon Sites; or provide any URL Marks for use, or request that any URL Marks be used, on any Amazon Site. S-1.2 Product Listing; Merchandising; Order Processing. We will enable you to list Your Products on a particular Amazon Site, and conduct merc:handising and promote Your Products as permitted by us (including via the Amazon Associated Properties or any other functions, features, advertising, or programs on or in connection with the applicable Amazon Site). We may use mechanisms that rate, or allow shoppers to rate, Your Products and your performance as a seller and Amazon may make these ratings and feedback publicly available. We will provide Ordeir Information to you for each order of Your Products through the applicable Amazon Site. We will also receive all Sales Proceeds on your AMAZON CONFIDENTIAL 15 AMZ-KANGAR0000000015 9 behalf for each of these transactions and will have exclusive rrights to do so, and will remit them to you in accordance with these Selling on Amazon Service Terms. S-1.3 Shipping a nd Ha ndling Cha rges. For Your Products ordered by customers on or through an Amazon Site that are not fulfilled using Fulfillment by Amazon, you will determine the shipping and handling charges subject to our Program Policies and standard functionality (including any category- based shipping and handling charges we determine, such as for products offered by seller s on the Individual selling plan and BMVD Products generally). When we determine the shipping and handling charges, you will accept them as payment in full for your shipping and handling. Please refer to the Fulfilllment by Amazon Service Terms for Your Products that are fulfilled using Fulfillment by Amazon. S- 1.4 Credit Card Fra ud. We will bear the risk of credit card fraud (i.e., a fraudulent purchase arising from the theft and unauthorized use of a third party's credit card information) occurring in connection with Your Transactions except in connection with Seller-Fulfilled Products that are not fulfilled strictly in accordance with the Order Information and Shipment Information. You will bear all other risk of fraud or loss. We may in our sole discretion withhold for investigation, refuse to process, restr~ct shipping destinations for, stop and/or cancel any of Your Transactions. You will stop or cancel orders of Your Products if we ask you to do so. If you have already transferred Your Products to a carrier or shipper when we ask you to stop or cancel an orderr, you will use commercially reasonable efforts to stop or cancel delivery of that order. You will refund any customer (in accordance with Sectjon S-2.2) that has been charged for an order that we stop or cancel. S-2 Sale a nd Fulfillme nt; Refunds and Returns. S-2.1 Sale and Fulfillment. Other than as described in the Fulfillment by Amazon Service Terms for each Amazon Site for which you r egister or use the Selling on Amazon Service, you will: (a) source, offer, sell and fulfill your Seller-Fulfilled Products, and source and, offer and sell your Amazon- Fulfilled Products, in each case in accordance with the terms of the applicable Order Information, this Agreement, and all terms provided by you or us and displayed on the applicable Amazon Site at the time of the order and be solely responsible for and bear all risk for those activities; (b) package each of Your Products in a commercially reasonable manner complying with all applicable packaging and labeli1ng requirements and ship each of Your Products on or before its Expected Ship Date; (c) retrieve Order Information at least once each business day; (d) only cancel Your Transactions as permitted pursuant to your terms and conditions appearing on the applicable Amazon Site at the time of the applicable order or as may be required under this Agreement; (e) fulfill Your Products throughout the Elected Country (except to the extent prohibited by Law or this Agreement); (f) provide to Amazon information regarding fulfillment and order status and tracking (to the extent available), in each case as requested by us using the processes designated by us, and we may make any of this information publicly available; (g) comply with all Street Date instructions; (h) ensure that you are the seller of each of Your Products; (i) include an order-specific packing slip, and, if applicable, any tax invoices, within each shipment of Your Products; (j) identify yourself as the seller of each of Your Products on AMAZON CONFIDENTIAL 16 AMZ-KANGAR0 0 0000001 6 9 all packing slips or other information included or provided in connection with Your Products and as the Person to which a customer may return the applicable product; and (k) except as expressly permitted by this Agreement, not send customers emails confirming orders or fulfillment of Your Products. I f any of Your Products are fulfilled using Fulfillment by Amazon, the Fulfillment by Amazon Service Terms for the applicable Amazon Site will apply to the storage, fulfillment and delivery of such Amazon-Fulfilled Products. S-2. 2 Cancellations, Returns and Refunds. For all of Your Products that are not fulfilled using FulfiJllrnent by Amazon, you will accept and process cancellations, returns, refunds and adjustments in accordance with this Agreement and the Amazon Refund Policies for the applicable Amazon Site published at the time of the applfcable order, a111d we may inform customers that these policies apply to Your Products. Except as otherwise described in the Program Policies, you will determine and calculate the amount of all refunds and adjustments (including any taxes, shipping and handling or other charges) or other amounts to be paid by you to cust omers in connection wit h Your Transactions, using functionality we enable for your account. This functionality may be modified or discontinued by us at any t ime without notice. You will route all payments to customers in connection with Your Transactions through Amazon. We will provide those payments to the customer (which may be in the same payment form originally used to purchase Your Product or as otherwise determined by us), and you will reimburse us for all amounts we pay. For ail of Your Products that are fulfilled using Fulfilllment by Amazon, the Amazon Refund Policies for the applicable Amazon Site published at the time of the applicable order will apply and you will comply with them. You will promptly p rovide refunds and adjustments that you are obligated to provide under the applicable Amazon Refund Policies and as required by Law, and in no case later than thirty (30) days after the obligation arises. S-3 Problems with Your Products. S-3.1 Delivery Errors and Nonconformities; Recalls. You are solely responsible for any non- performance, non-delivery, misdelivery, theft or other mistake or act in connection with the fulfillment of Your Products, except to the extent caused by: (a) credit card fraud for which we are responsible under Section S-1.4; or (b) our failure to make available to you Order Information as it was received by us or resulting from address verification. Notwithstanding the previous sentence, for th ose of Your Products that are fulfilled using Fulfillment by Amazon, if any, the Fulfillment by Amazon Service Terms for the applicable Amazon Site will apply to non-delivery, mfsdelivery, theft or other mistake or act in connection with the fulfillment of those of Your Products. You are also responsible for any non- conformity or defect in, or any public or private recall of, any of Your Products or other pr oducts provi·ded in connection with Your Products. You will notify us promptly as soon as you have knowledge of anv public or private recalls of Your Products or other products provided in connection with Your Products. S-3.2 A-to-z Guarantee and Chargebacks. If we inform you that we have received a claim under the "A-to-z Guarantee'' offered on a particular Amazon Site, or any chargeback or other dispute1 AMAZON CONFIDENTIAL 17 AMZ-KANGAR0000000017 9 concerning one of Your Transactions, you will deliver to us in a format and manner we specify: (a) proof of fulfillment of Your Product(s) (as applicable); (b) the applicable Amazon order identification number; (c) a description of Your Product(s) (as applicable); and (d) any terms provided by you or us and displayed on the Amazon Site at the time of the transaction in question. If you fail to comply with the prior sentence, or if the claim, chargeback, or dispute is not caused by: (i) credit card fraud for which we are responsible under Section S-1.4; or (ii) our failure to make your Order Information available as the same was received by us or resulting from address verification, then you will promptly reimburse us in accordance with the Service Fee Payments section of this Agreement for the amount of the customer purchase (includi ng the Purchase Price, all associated shipping and handling charges and all taxes, but excluding any associated Referral Fees retained and not subject to refund by Amazon) and all associated credit card association, bank or other payment processing, re- presentment and/or penalty fees associated with the original purchase and any chargeback or refund, in each case to the extent paid or payable by us or our Affiliates. If the Elected Country is Japan and we receive a claim under the "A-to-z Guarantee" concerning one of Your Transactions and we determine that we are responsible for t hat claim then we wil l purchase the returned products from the customer. S-4 Parity with Your Sales Channels. Subject to this Section S-4, you are free to determine which of Your Products you wish to offer on a particular Amazon Site. You will maintain parity between the products you offer through Your Sales Channels and the products you list on any Amazon Site by ensuring that: (a) the Purchase Price and every other term of offer or sale of Your Product (including associated shipping and handll ing charges, Shipment Information, any "low price" guarantee, rebate or discount, any free or discounted products or other benefit available as a result of purchasing one or more other products, and terms of applicable cancellation, return and refund policies) is at least as favorable to Amazon Site users as the most favorable terms upon which a product is offered or sold via Your Sales Channels (excluding consideration of Excluded Offers); (b) customer service for Your Products is at least as responsive and available and offers at least the same level of support as the most favorable customer services offered in connection with any of Your Sales Channels (this requirement does not apply to customer service for payment-related issues on Your Transactions, which we will provide); and (c) the Content, product and service information and other information under Section S-1.1 regarding Your Products that you provi,de to us is of at least the same level of quality as the highest quality information displayed or used in Your Sales Channels. If you become aware of any non-compliance with (a) above, you will promptly compensate adversely affected customers by making appropriate refunds to them in accordance with Section S-2.2. For Amazon-Fulfilled Products, if the shipping and handling charges associated with the sale and fulfillment of any of Your Products offered on an Amazon Site are included (and not separately stated) in the item price listed for Your Product (collectively a "Shipping Inclusive Purchase Price"), then the parity obligation in (a) above will be satisfied if the Shipping Inclusive Purchase Price and each other term of offer or sale for the product on the Amazon Site are at least as favorable t o Amazon Site users as the purchase price and each other term of offer or sale for AMAZON CONFIDENTIAL 18 AMZ-KANGAR0000000018 9 the product (including any and all separately stated shipping and handling charges) pursuant to which the prnduct or service is offered or sold via any of Your Sales Channels. s-s Compe nsation. You will pay us: (a) the applicable Referral Fees; (b) any applicable Variable Closing Fee; (c) the non- refundable Selling on Amazon Subscription Fee in advance each month; and (d) any other applicable fees described in this Agreement (including any applicable Program Policies) . "Selling on Amazon Subscription Fee" means the fee specified as such on the Selling on Amazon Fee Schedule for the applicable Amazon Site at the time such fee is payable. Wit h respect to each of Your Transactions: (i) "Sales Proceeds" has the meaning set out in this Agreement; (ii) "Variable Closing Fee" means the applicable fee, if any, as specified on the Variable Closing Fee Schedule for the applicable Amazon Site; and (iii) "Referral Fee" means the applicable fee based on the Sales Proceeds from Your Transaction through the applicable Amazon Site specified on the Selling on Amazon Fee Schedule for that Amazon Site at the time of Your Transaction, based on t he categorization by Amazon of the type of product that is the subject of Your Transaction; provided, however, that Sales Proceeds will not include any shipping charges set by us in each of the following two cases: (Y) in the case of Your Transactions that consist solely of products fulfilled using Fulfillment by Amazon; and (z) in the case of Media Products. S- 6 Remittance of Sales Proceeds & Refunds. Except as otherwise stated in this Agreement, we will remit to you on a bi-weekly (14 day) (or at our option, more frequent) basis, whi ch may vary for each Elected Country, any Sales Proceeds received by us or our Affiliates but not previously remitted to you as of the date that is t wo (2) business days prior to the date of remittance (the "Remittan.ce Calculation Date") (which you will accept as payment in full for Your Transactions), less: (a) the Referral Fees; (b) the applicable Variable Closing Fee; (c) any Selling on Amazon Subscription Fees; and (d) any other applicable fees described in this Agreement (including any applicable Program Policies) . When you either initially provide or later change Your Bank Account information, the Remittance Calculation Date may be deferred by up to 14 days. You will not have the ability to Initiate or cause payments to be remitted to you. For sellers that registered after October 30, 2011 and are on the Individual selling plan, the remittance amount will niot include Sales Proceeds from the 14-day period before the date of remittance. If you refund money to a customer in connection with one of Your Transactions, and the refund is routed through us (or our Affiliate), on the next available Remittance Calculatiorn Date we will refund to you the amount of the Referral Fee paid by you to us attributable to the amount of the customer refund (including refunded taxes and customs duties only to the extent specified in the applicable Tax Policjes), less the Refund Administration Fee for each of Your Products refunded that Is not a BMVD Product, which amount we may retain as an administrative fee; provided, however, that in the case of a complete refunid of Sales Proceeds for a Media Product, we will refund t:o you the full amount of any Variable Closing Fee paid by you to us (and in the case of a partial refund of Sales Proceeds for a Media AMAZON CONFI DENTIAL 19 AMZ-KANGAR0000000019 9 Product, we will not refund to you any portion of any Variable Closing Fee paid by you to us). We will remit any amounts to be refunded by us pursuant to this subsection from time to time together with the next remittance to be made by us to you. " Refund Administration Fee" means the applicable fee described on the Refund Administration Fee Schedule for the applicable Amazon Site. s-7 Control of Amazon Sites. We have the right i n our sole discretion to determine the content, appearance, design, functionality and all other aspects of the Amazon Sites, including by redesigning, modifying, removing or restricting access to any of them, and by suspending, proh ibiting or removing any listing. 5-8 Effect of Termination. Upon termination of these Selling on Amazon Service Terms in connection with a particular Amazon Site, all rights and obligations of the Parties under these Selling on Amazon Service Terms with regard to such Amazon Site will be extinguished, except that the rights and obligations of the Parties with respect to Your Transactions occurring during tthe Term will survive the termination or expiration of the Term. Selling on Amazon Definitions "Amazon-Fulfilled Products" means any of Your Products that are fulfilled using the Fulfillment by Amazon Service. "Amazon Refund Policies" means the ~ published on the applicable Amazon Site and applicable to pmducts and services offered via that Amazon Site. ''BMVD Product" means any book, magazine or other publication, sound recording, video recording, and/or other media product in any format, including any subscription, in each case excluding any software product, computer game, and/or video game. "Excluded Offer" means any discount, rebate, promotional offer, or other term of offer and/or sale that you: (a) have attempted to make available through a particular Amazon Site but that we do not honor or support (but only until such time as we honor or support the same on such Amazon Site); or (b) make available solely to Third Parties that either (i) purchase products solely for resale and who are not end users of such products (i.e., wholesale purchasers) 1 or (ii) If the Elected Country is Canada, Mexico or the United States, have affirmatively elected and opted-in to participate in your or one of your Affiliates' membership-based customer loyalty or customer incentive programs. "Expected Ship Date" means, with respect to any of Your Products, either: (a) the end of the shipping availability period (which begins as of the date on which the relevant order is placed by the customer), or the shipping availability date, as applicable, specified by you in the relevant AMAZON CONFIDENTIAL 20 AMZ-KANGAR0000000020 9 inventory/product data feed for Your Product; or (b) if you do not specify shipping availability information in such inventory/product data feed or that Your Product is in a product category that Amazon designates as requiring shipment within two (2) business days, two (2) business days after the date on which the relevant order is placed by the customer. "Media Product" means any book, magazine or other publication, sound recording, video recording, software product, computer game, videogame, or other media product in any format, including any related subscription, offered through an Amazon Site. "Purchase Price" means the total amount payable or paid for Your Product (including taxes and shipping and handling charges only to the extent specified in the applicable Tax Policies). ''Remittance Calculation Date" is defined in Section S-6. "Required Product Information" means, with respect to each of Your Products In connection with a particular Amazon Site, the following (except to the extent expressly not required under t he applicable Program Policies): (a) description, including as applicable, location-specific availability and options, scheduling guidelines and service cancellation policies; (b) SKU and UPC/EAN/ JAN numbers, and other identiifying information as Amazon may reasonably request; (c) information regarding in-stock status and availabHity, shipping limitations or requirements, and Shipment Information (in each case, in accordance with any categorizations prescribed: by Amazon from time to time); (d) categorization within each Amazon product category and browse structure as prescribed by Amazon from time to time; (e) digitized i mage that accurately depicts only Your Product, complies with all Amazon image guidelines, and does not include any additional logos, text or other markings; (f) Purchase Price; (g) shipping and handling charge (in accordance with our standard functionality); (h) any text, disclaimers, warnings, notices, labels, warranties or other content required by applicable Law to be displayed in connection with the offer, merchandising, advertising or sale of Your Product; (i) any vendor requirements, restocking fees or other t:erms and conditions applicable to such product that a customer should be aware of prior to purchasing the product; (j) brand; (k) model i (I) product dimensions; (m) weight; (n) a delimited list of technical specifications; (o) SKU and UPC/EAN/JAN numbers (and other identifying information as we may reasonably request) for accessories related to Your Product that is available in our catalog; (p) the state or country Your Product ships from; and (q) any other information reasonably requested by us (e.g., the condition of used or refurbished products). "Seller- Fulfilled Product s" means any of Your Products that are not fulfilled using the Fulfillment by Amazon Service. "Shipment Information " means, with respect to any of Your Products, the estimated or promised shipment and delivery date. AMAZON CONFIDENTIAL 21 AMZ-KANGAR0000000021 9 "Street Date " means the date(s), if any, specified by the manufacturer, distributor and/or licensor of a product as the date before which specified information regarding such product (e.g., title of a book) should not be disclosed publicly, or such product should not be delivered or otherwise made available to customers. "URL Marks" means any Trademark, or any ott1er logo, name, phrase, identifier or character string, that contains or Incorporates any top level domain (e.g., .com, .edu, .ca, .fr, .jp) or any variation of a top level domain (e.g., dot com, dotcom, net, or com). "Your Transaction" is defined In the General Terms of this Agreement; however, as used in these Selling on Amazon Service Terms, It means any and all such transactions through Selling on Amazon only. AMAZON CONFIDENTIAL 22 AMZ-KANGAR0000000022 9 Webstore Service Terms Amazon Webstore (which, for purposes of this Agreement, includes Webstore by Amazon, unless specifically stated otherwise) (the "Webstore Service") provides access to and use of an e- comrnerce website through which you can offer and sell Your Products (a "Webstore Site"), The Webstore Service is not currently available in Canada, Mexico or Japan. These Webstore Service Terms are part of this Agreement, and, unless specifically provided otherwise, concern and apply only to your participation in the Webstore Service. BY REGISTERING FOR OR USING THE WEBSTORE SERVICE, YOU (ON BEHALF OF YOURSELF OR THE BUSINESS YOU REPRESENT) AGREE TO BE BOUND BY THE AGREEMENT, INCLUDING THESE WEBSTORE SERVICE TERMS. W - 1 Listing a nd Prom otion. Each sale of Your Products through your Webstore Site is a sale by you. You will determine what is for scile on your Webstore Site, but you may not list any product on the Webstore Site that is an Excluded Product. You will ensure that you list all of Your Products in accordance witlh this Agreement, including any applicable Program Policies. W-2 Information. You will provide in the format we require accurate and complete Webstore Required Product Information and all other information requested by us to process payments for you and to otherwis e operate your Webstore Site. You will update such information as necessary to ensure it at all times 1·emains accurate and complete. If you provide us with any images of Your Product, you will, unless we otherwise agree, first remove any logos, text or other marking included on the image except for any logos, text or other marking that actually appears on the product. You will either: (a) upload to us the "shipping confirmation files" as required by us, including all shipment notification, shipping status and order tracking information requested by us from time to time, and any other information as requested by us to process payments based on Your Product shipment status; provided, that if you are using Fulfillment by Amazon to fulfill any of your customer orders, the Fulfillment by Amazon Service Terms will apply with respect to such orders; or (b) use the Manage Your Orders tool in Seller Central to manage and upload the required "shipping conf irmation files" from Seller Central. We may provide this shipment and payment related information to users of the Webstore Site. We will make available certain information and reports relating to Your Transactions as we determine and have no obligation to make available any other information. We may use mechanisms that rate, or may allow users to rate, your performance as a seller, and may post those ratings and feedback on the Webstore Site or any Amazon Site or otherwise make it publicly available. Any use on your Webstore Site of content displayed on an Amazon Site, or links to an Amazon Site, will! be subject to the terms of the Amazon Associates Operating Agreement. AMAZON CONFIDENTIAL 23 AMZ-KANGAR0000000023 9 W- 3 Your Product Transactions. W-3.1 General; Sale and Fulfillment. You will be solely responsible for, and bear all risk and liability for, sourcing, storing, selling, and ful filling all of Your Products. As such, you are r esponsible for any non-conformity or defects in, damage to, or theft of or claims regarding the delivery or non- delivery of Your Products. You will handle such responsibilities, and agree to complete transactions for the items that you have listed in accordance with these Webstore Service Terms and applicable Program Policies. Nlotwit hstanding anything in this Section W-3.1, for those of Your Products that are fulfilled using Fulfillment by Amazon (if any), the Fulfillment by Amazon Service Terms will apply to our storage, fulfillment and delivery of Your Products. All sales of Your Products on or through the Webstore Site will be final and may not be cancelled or revo.ked by you except pursuant to the applicable terms and conditions that appear on the Webstore Site. W-3.2 Order arid Payment Processing. We will process all payments, refunds and adjustments for Your Transactions. Amazon's, or one of its Affilf,ates', name will appear on the customer's credit card statement (which may also display, at our option, your name). we will determine the time at which we process payments, refunds and adjustments fo1r Your Transactions in our sole discretion. However, you are always the seller of record. We may withhold for investigation, or refuse to process, any of Your Transactions. We do not need to accept any particular form of order or payment for Your Product, or honor or accept any discounts, coupons, gift certificates, or other offers or incentives made available by you. We may in our sole discretion withhold for investigation or to refuse to process any transaction involving Your Products or any other products or services on or through the Webstore Site. We may use the services of one or more third party, processors or financial institutions in connection with t he Webstore Service (each, a "Processo'r"). If total Sales Proceeds from Your Transact ions exceed $20,000 per month for any three consecutive months, you agree to the additional terms and conditions between you and the Processor(s) as provided in the Credit Card Association Agreement. If you have entered into a separate agreement with one of our Affiliates that governs order and payment processing in connection with Your Transactions, you will be subject to the terms of that agreement notwithstanding anything to the contrary in this Agreement. W-3.3 Fraud and Order Stops/ Cancellations. We will bear the risk of ci-edit card fraud (i.e. fraudlulent purchases arising from the theft and unauthorized use of a third party's credit card information) occurring in connection with Your Transactions, except with respect to Your Transactions that you do not fulfill in accordance with the Order I nformation made available to you by us (including shipping Your Product only to the recipient and at the shipping address specified in t he Order Information made available by Amazon), and you will bear all ot her risk of fraud or loss. You will promptly inform us of any changes to t he product mix of Your Products or any pattern of fraudulent or other improper activities with respect to any of Your Product(s) t hat has resulted or may result in a higher incidence of fraud or other impropriety associated with transactions involving it (or them) than other similar products, You will stop or cancel orders of Your Products if we so direct (and if the customer has already been charged, you will execute the refunds for these orders) and will provide to AMAZON CONFIDENTIAL 24 AMZ-KANGAR0000000024 9 us telephone and email contact information for a designated contact available during business hours whom we can contact regarding fraud, order stops and cancellations and similar concerns, who will cooperate with us and who has access and ability promptly to cancel or stop orders from being shipped. We may restrict destinations to which you may ship Your Products sold on or through any Webstore Site. W - 3.4 Refunds and Returns. Except for those of Your Products, if any, that are fulfilled using Fulfilllment by Amazon (in which case the Fulfillment by Amazon Service Terms will apply), you will accept and process returns of, arnd (using the functionality we make available to you) provide refunds and adjustments for, Your Products in accordance with these Webstore Service Terms and your policies posted on the Webstore Site at the time of the applicable sale, and you will calculate and refund any associated taxes required to be refunded. You will route all refund (and adjustment) payments through Amazon or its designated Affiliate. Amazon or its designated Affiliate will credit the applicable customer account1 and you will reimburse Amazon for all amounts so credited. The functionality we make available to you for processing returns and adjustments may be modified or discontinued by us at any time without notice and is subject tto the terms of this Agreement. Except for those of Your Products, if any, that are fulfilled using Fulfillment by Amazon (in which case the Fulfillment by Amazon Service Terms will apply), we have no obligation to accept any returns of any of Your Products. W-3.5 Delivery Errors and Nonconformities; Product Recalls. You are responsible for any non- delivery, misdelivery, theft or other mistake or act in connection with the fulfillment of Your Products, except to the extent caused by (a) credit card fraud for which we are responsible under Section W- 3.3; or (b) our failure to make available to you Order Information as it was received by us or resulting from address verification. Notwithstanding the previous sentence, for those of Your Products that are fulfilled using Fulfillment by Amazon (if any), the Fulfillment by Amazon Service Terms will apply to non-delivery, misdelivery, theft or other mistake or act in connection wit h the fulfillment of those of Your Products. You are also responsible for any non-conformity or defect in, or any public or private recall of, any of Your Products. You will notify us promptly as soon as you have knowledg·e of any public or private recalls of Your Products. W-3.6 A-to-z Guarantee and Chargebacks. If we inform you that we have received a claim under the "A-to-z Guarantee" (or any substantially consistent offer), or any chargeback or other dispute, concerning one of Your Transactions, you will deliver to us within seven (7) days: (a) proof of delivery of the applicable Your Product(s); (b) the applicable Amazon order identification number; and (c) a description of the applicable Your Product(s). If you fail to comply with the prior sentence, or if the claim, chargeback, or dispute is not caused by (i) credit card fraud for which we are responsible under Section W-3.3, or (ii) our failure t o make your Order Information available as the same was received by us or resulting from address verification, then you will promptly reimburse us for the amount of the customer purchase (including the Purchase Price, all associated shipping and handling charges and all taxes) and all associated credit card association, bank or other payment processing, re-presentment AMAZON CONFIDENTIAL 25 AMZ-KANGAR0000000025 9 and/or penalty fees associated with the original purchase and any chargeback or refund, in each case to the extent paid or payable by us or our Affiliates. We may require that you establish a separate reserve account (a "Reserve") to secure the performance of your payment obligations under this Agreement, in an amount as determined by us. Without limiting the foregoing, we may require a Reserve if you have a high rate of chargebacks .. refunds, or other indicia of performance p roblems related to your use of the Webstore Service. The Reserve wllll be in an amount as determined by t.ts to cover anticipated chargebacks or credit risk based on your processing history or such amount designated by our Processor(s) and the Reserves will be subject to the Transaction Processing Service Terms (if the Elected Country for a Service is the United States). W-4 Customer Service. W-4.1 General. The provisions in this Section W-4 apply ontiy in connection with sales of Your Products through the Webstore Site that are not fulfilled using Fulfillment by Amazon. For customer service obligations pertaining to orders of Your Products using the Selling on Amazon Service or orders of Your Products fulfilled using Fulfillment by Amazon, the Service Terms applicable to those Services will apply. You will refer customer issues to us according to the responsibilities below, in a timely, professional and courteous manner and at the applicable "Contact Us" form, email address and/or phone number provided for such purpose by us. You will not establish direct phone or email transfer functionality of customer service contacts to us, forward customer emails to us, or disclose our customer service contact information unless in response to a customer contact concerning a customer service issue for which we are responsible under these Webstore Service Terms. W-4.2 Our Customer Service Responsibilities. As between you and us, we will be solely responsible for all customer service issues relating to payment, credit card processing, debiting or crediting, and the "A-to-z Guarantee". W-4.3 Your Customer Service Responsibilities. Unless provided otherwise elsewhere in these Webstore Service Terms, you will be solely responsible for all customer service issues relating to Your Products (including pricing, rebates, item information, availability, technical support, functionality and warranty), Your Product order fulfillment and shipping and handling, Your Product order cancellation by you or any customer, returns, refunds and adjustments, and feedback concerning experiences with your personnel, pollicies or processes, In performing customer service, you will always present yourself as a separate entity from us. w-s Data and Communications. We and you will co-own all the Customer Account Informat ion and Webstore Transaction Information. Neither you nor we will need to pay any royalties or account to the other in connection with your or our use of any Customer Account Information or Webstore Transaction Information. You and your Affiliates will: (a) at al l times comply with all Laws, including any Law related to the use of this type of information; and (b) comply with any applicable policies posted on the Webstore Site regarding use of this transaction and customer data. We are not liable for AMAZON CONFIDENTIAL 26 AMZ-KANGAR0000000026 9 protection or privacy of electronic mail or other information transferred through the Internet or any other network you or your customers may utillze, including without limit ation in connection with the provision of the Webstore Service; or the back up Of any of your files or data. W-6 Pricing and Remittance. W-6. 1 Your Product Pricing and Terms of Sale Generally. You are free to determine the price for each of Your Products listed for sale on your Webstore Site. W-6.2 Shipping & Handling Charges. You will determine shipping and handling charges for Your Products sold on or through the Webstore Site, but will comply with any shipping and handling charge Program Policies. lf Your Product is fulfilled using Fulfil lment by Amazon, this section will not apply and the Fulfillment by Amazon Service Terms will apply. W-6.3 Remittance and Compensation. W-6.3.1 Fees. You will pay us: (a) applicable Webstore Referral Fees; and (b) the applicable non- refundable Webstore Subscription Fee(s) in advance for each month of the term of this Agreement. "Webstore Subscription Fee" means the applicable fee(s) specified on the Webstore Fee Schedule at the time such fee is payable. With respect to each of Your Transactions: (i) "Sales Proceeds" has the meaning set out in the General Terms of this Agreement; and (ii) "Webstore Referral Fee" means the applicable percentage of Sales Proceeds from Your Transaction tl1rough the Webstore Site specified on the Webstore Fee ScheduJ~ at the time of Your Transaction. W-6.3.2 Remittance of Sales Proceeds. We will remit to you on a bi-weekly (14-day) (or at our option, more frequent) basis any Webstore Sales Proceeds received by us but not previously remitted to you as of the date that is two (2) business d.ays prior to the date of remittance (the "Remittance Calculation Date"), less: (a) the Webstore Referral Fees due for such sums; and (b) any Webstore Subscription Fees due, You will accept our remittances under the previous sentence as payment in full for the sale and shipping and handling of Your Products. W-6.3.3 Refunds. If you refund money to a customer in connection with Your Transaction, and the refun d is routed through us, we will refund to you the amount of the Webstore Referral Fee paid by you to us attributable to tile amount of the customer refund (excluding any refunded taxes), less the lower of (a) five dollars ($5); or (b) twenty percent (20%) of the Webstore Referral Fee, which we may ·retain as an administrative fee. We will remi t any amounts to be refunded by us under t his subsection from time to time together with the next remittance to be made by us to you pursuant to subsection W- 6.3 .1 above. AMAZON CONFI DENTIAL 27 AMZ-KANGAR0000000027 9 W- 7 Provision a nd Use of the W ebstore Serv ice. W-7.1 License to th e W ebstore Service and Amazon Materials. Subject to this Agreement (including, but not limited to, Section W-7.2 (License Restrictions) and Section W-7.5 (Messaging), we grant you a limited, revocable, non-sublicenseable, non-assignable, non-exclusive and royalty-free license to: (a) access and use the Webstore Service and the Amazon Materials in the manner permitted by this Agreement; (b) install, copy, and use any Amazon Materials we may provide, solely in conjunction with your access to and use and operation of your Webstore Site; (c) use the Amazon Marks solely in conjunction with your use and operation of your Webstore Site and solely in accordance with the Trademark Usage Guidelines; and (d) enable the access to and use of your Webstore Site by customers. W-7.2 License Restrictions. You may not and may not authorize any other party to do the follow1ng to or with the Webstore Service, the Webstore Site or the Amazon Materials: (a) reverse engineer, decompile, or disassemble them; (b) modify or create derivative works based upon them in whole or in part; (c) distribute copies of them; (d) remove any proprietary notices or labels on them; (e) use any Public Software in any manner that requires, pursuant to the license applicable to such Public Software, that the Webstore Service or any Amazon Materials be disclosed; licensed, distr ibuted or otherwise made available to anyone; or (f) resell, lease, rent, transfer, sublicense, or otherwise transfer rights to them. In addition to any other rights or remedies that we may have, any use in violation of this section will immediately t erminate your right to use the Webstore Service, the Webstore Site, the Amazon Materials, and the Amazon Marks. W - 7 .3 Ow nershipi Re servation of Right s. You acknowledge and agree t hat we (or our licensors, as applicable) own all right, title and interest in and to the Webstore Service, the Amazon Materials, and Amazon Marks, and, except as ex plicitly included in this Agreement, you do not, by virtue of this Agreement or otherwise, acquire any ownership interest or rights in or to t ile Webstore Service, the Amazon Materials, any Amazon Marks, or any other intellectual property or technology that we provide or use in connection with the Webstore Service. All licenses n ot expressly granted in these Webstore Service Terms are reserved and no other licenses, immunity or rights, express or implied are granted by us, by implication, estoppels or otherwise. W-7.4 URLs. W- 7 .4. 1 Ge neral. Except as provided In Section W- 7.4.2, you will be responsible for securing all rights to the URL(s) for the Webstore Site, including maintain ing the registrat ion for the URLs with your domain name registrars. You will comply with our requir ements regarding the URL(s) and its administration with the registrar so that we can provide the Webstore Service to you. You represent and warrant t hat the URLs used in connection with the Webstore Site does not violate any intellectual property rights or any other proprietary rights of any person. Except in connection with any URL provided by us as described in Section W- 7.4.2, you will not include "amazon", or any other Amazon AMAZON CONFI DENTIAL 28 AMZ-KANGAR0000000028 9 Mark or any variation or similar misspelling in any URL used in connection with the Webst ore Site, or otherwise. W-7 .4.2 Amazoh Pro"ided URL We may provide you with a URL to use in connection with your Webstore Site. If you choose to use it you will comply with our requirements for its administration. W-7 .S Messaging. We will have the right to d·etermine the use of any Amazon Marks and any messaging or notice on the Webstore Site, for example, we will control how our role in processing orders and paymen ts is explained to the customer, and (if applicable) !"low our "A-to-z Guarantee" is descr ibed. The Webstore Site will also display privacy and customer account use and creation messaging, which will include any terms we may require. At a minimum, you will ensure that your privaq policy discloses that you use third party service providers to provide your Webstore Site and that your third pa1ty service providers will have access to customer information. Should we allow or require you to include any Amazon Marks or messaging, you will do so strictly in accordan ce with instructions we provide to you. W-8 Effect of Termination. Upon any termination of the term of this Agreement or these Webstore Service Terms, all rights and obligations of the parties under these Webstore Service Terms will terminat e, except that: tile rights and obligations of the parties under Sections W-2. W-3. W-4, W-5, W-6 and W- 8 with respect to Your Transactions occurring prior to termination will survive such termination. Upon any termination of the ter m of this Agreement or these Webstore Service Terms, you will immediately cease and discontinue all use of the Amazon Marks. W-9 Miscellaneous. Your Representations; Compliance with Laws. In addit ion to your representation and warranties in Section 5 of the General Terms of this Agreement, you represent and warrant to us that: (a) all of Your Products and their packaging comply and will co1npty with all applicable marking and labeling requirements required by law; (b) none of Your Products are or will be produced or manufactured, in whole or in part, by child labor or by convict or forced labor; (c) you and all of your subcontractors, agent s and suppliers involved in producing or delivering Your Products will strictly adhere to all applicable Laws of t he Elected Country, its terri·tories and all other countries where Your Products are produced or delivered, regarding the operation of their facilities and their business and labor practices, including without limitation working conditions, wages, hours and minimum ages of workers; (d) you Will not, unless we otherwise agree, redirect any customers or prospective c ustomers from the Webstore Site to any other sales channel, and will not use the Webstore Service for any purpose other than the offer or sale of Your Products as contemplated in this Agreement; (e) Your Materials, Your Products and your offer and subsequent sale of any of the same complies with all applicable Laws (including all marking and labeling requirements) and do not contain any defamatory, obscene or AMAZON CONFIDENTIAL 29 AMZ-KANGAR0000000029 9 sexually explicit materials (except to t he extent expressly permitted under applicable Program Policies); (f) you will ensure that Your Transactions are made at no less than fair value under the antidumping laws of the United States and will otherwise comply with the antidumping laws of the United States, its territories and of all other countries where Your Products are produced, delivered, or intended t o be sold; (g) in connection with the Webstore Service or your Webstore Site, you will not separately ask for or require any customers or prospective customers to provide any credit card, debit card, bank account, or other information related to a payment method; and (11) you will not, without our prior consent, use any third party payment service for the processing of payments for transactions associated with your Webstore Site. Webstore Definitions "Amazon Functionality" means all techniques, know-how, features and functionality specific to development of a website presence to display products loaded into the Amazon platform, including the following features and Functions: search, browse, product detail display, shopping cart and credit card transaction processing, order/account lookup, and storefront administration & merchandising. "Amazon Mark" is defined in the Trademark Usage Guidelines. "Amazon Materials" means: (a) the Amazon Functionality (including, without limitation, all related techniques, know-how, algorithms, materials, specificat ions and source code)i and (b) all Webstore Service-related product information, APis, and any distinctive t rade dress and trade styles (including, without limitation, color schemes), proprietary fonts, and the design, formatting, organization and structure of scr-eens and other elements included within the Webstore Site. "Ama zon Product" means any products that are sold and fulfilled by Amazon (or one of its Affiliates) on its own behalf. "Ama zon Transaction" means the sale of any Amazon Product through the Webstore Site for which Amazon (or its Affiliate) receives Amazon Transaction Revenues. "Amazon Transaction Reve nues" means: (a) the aggregate revenues (excluding taxes, bad debt, gift-wrapping charges, shipping and handling charges, or services charges and credit card processing fees) derived by Amazon and its Affiliates from sales of Amazon Products through the Webstore Site as provided in this Agreement; less (b) any revenues attributable to returned Amazon Products, if such revenues previously were included in "Amazon Transaction Revenues". "Customer Account Information" means the following non-transaction-specific infonnation you receive from Amazon prior to the expiration or termination of this Agreement with respect to customer accounts created or otherwise used to purchase Your Products on the Webstore Site: customer name, physi,cal address, e- mail address and phone numbers. Notwithstanding the foregoing and for the avoidance of doubt, Customer Account Information does not include: (a) any Webstore Transaction AMAZON CONFIDENTIAL 30 AMZ-KANGAR0000000030 9 Information; (b) any credit card, other account or identifying number of, or any other information specifically concerning, any payment instrument or method; (c) sign-in credentials; (d) information that pertains specifically to functionality of the Webstore Site (e.g., personalization settings); or (e) user clickstream information. "Public Software" means any software, documentation or other material that contains, or is derived (in whole or in part) from, any software, documentation or other material that is distributed as free software, open source software (e.g., Linux) or similar licensing or distribution models, including, but not Ii mited to software, documentation or other material licensed or distributed under any of the following licenses o·r distribution models, or licenses or distribution models similar to any of the following: (a) the GNU General Public License (GPL); Lesser/Library GPL (LGPL), or Free Documentation License; (b) The Artistic License (e.g., PERL); (c) the Mozilla Public License; (d) the Netscape Public License; (e) the Sun Community Source License (SCSL); (f) the Sun Industry Standards License (SISL)i (g) the BSD License; and (h) the Apache License, "Shipment Information" means, with respect to any of Your Products, the estimated or promised shipment and/or delivery date. "Webstore Required Product Information" means with respect to each of Your Products, the following: (a) a description of Your Product; (b) the UPC code (unless we ot herwise agree), SKU number for Your Product, and any other identifying information about Your Product that we request; (c) information regarding the in-stock status, slhipping availability period or shipping availability date, and Your shipping limitations or requirements (in each case, in accordance with any categorizations we prescribe from time to time); (d) the categorization of Your Product within each applicable Amazon browse structure that we prescribe from time to time; (e) a digitized image of Your Product (provided that you will first remove any logos, text or other marking included on such image except to the extent that such logos, text or other marking a·ctually appear on Your Product); (f) the price for Your Product; (g) any text, disclaimers, warnings, notices, labels or other content required by applicable law to be displayed in connection with the offer, merchandising, advertising or sale of Your Product; (h) any vendor requirements, restocking fees or other terms and conditions applicable to such product that a customer should be aware of prior to pu11chasing the product; (i) brand; (j) model; (k) product dimensions; (I) weight; (m) a delimited list of technical specifications; (n) UPC code and SKU number (and other identifying information as Amazon may reasonably request) for accessories related to Your Product that are available in Amazon's catalog; and (o) any other information we reasonably request (e.g., the condition of used or refurbished products). "Webstore Transaction Information" means the following information you receive from Amazon associated with any orders of Your Product through your Webstore Site: total transaction amount; order ID#; order item code; SKU; product name; quantity; price; and adjustments. Notwithstanding the foregoing and for the avoidance of doubt, Webstore Transaction Information does not include: (a) any Customer Account Information; (b) sign-in credentials; (c) user click-stream information; or (d) AMAZON CONFIDENTIAL 31 AMZ-KANGAR0000000031 9 any credit card or other account or identifying number of, or any other information specifically concerning, any payment instrument or method. AMAZON CONFIDENTIAL 32 AMZ-KANGAR0000000032 9 Fulfillment by Amazon Service Terms Fulfilllrnent by Amazon ("FBA") provides fulfillment and a·ssociated services For Your Products. These FBA Service Terms are part of the Agreement, and1 unless specifically provided otherwise, concern and apply only to your participation in FBA. BY REGISTERING FOR OR USING FBA, YOU (ON BEHALF OF YOURSELF OR THE BUSINESS YOU REPRESENT) AGREE TO BE BOUND BY THE AGREEMENT, INCLUDING THESE FBA SERVICE TERMS. You expressly agree that Amazon may engage its Affiliate(s) or a t hird party in order to complete one or more of the fulfillment and associated services outlined below. If the Elected Country is Japan, the following applies to you: Notwithstandi ng anything to the contrary in the Agreement, i1 f there should be any subject matter specified in the "Standard Storage Bailment Terms and Condit ions (Hyoujun Soko Kitaku Yakkan - Otsu)" that is not specified in the Agreement, including these FBA Service Terms, upon your request, such provision will be determined by discussion and mutual agreement of the parties. Fulfillment Servjces F-1 Your Products Once you are accepted Into FBA, you must apply to register each product you offer that you wish to include in the FBA program. We may refuse registration in FBA of any product, including on the basis that it is an FBA Excluded Product or that 1t violates applicable Program Policies. You may at any time withdraw registration of any of Your Products from FBA. F-2 Product and Shipping Information You will, in accordance with applicable Program Policies, provide in the format we require accurate and complete information about Your Products registered in FBA, and will provide Fulfillment Requests for any Units fulfilled using FBA that are not sold through an Amazon Site ("Multi-Channel Fulfillment Units"). You will promptly update any information about Your Products in accordance with our requirements and as necessary so that the information is at all times accurate and complete. F-3 Shipping to Amazon F-3.1 Except as otherwise provided in Section F-3.4 and Section F-5, FBA is limited to Units that are shipped to and from fulfillment centers located within the applicable Elected Country, to be delivered to customers in the same Elected Country only. You will ship Units to us in accordance with applicable Program Policies. You will be responsible for all costs incurred to ship the Units to the ship ping destination (including costs of freight and transit insurance) and Amazon will not pay any shipping costs except as provided in Section F-3.2. You are responsible for payment of all customs, duties, AMAZON CONFIDENTIAL 33 AMZ-KANGAR0000000033 9 taxes and other charges. In the case of any improperly packaged or labeled Unit, we may return the Unit to you at your expense (pursuant to Section f-7) or re-package or re-label the Unit and charge you an administrative fee. F-3.2 You will not deliver to us, and we may refuse to accept, any shipment or Unsuitable Unit. We may r eturn or dispose of any Unsuitable Unit as provided in Section F-7 (and you will be deemed to have consented to such action): (a) immediately if we determine in our sole discretion that the Unit creates a safety, health or liability risk to Amaz.on, our personnel or any third party; (b) if you fail to direct us to return or dispose of any Unsuitable. Unit within thirty (30) days after we notify you that the Unit has been recalled; or (c) except as otherwise provided in this Section F-3.2, if you fail to direct us to return or dispose of any Unsuitable Unit within ninety (90) days after we notify you that we are in possession of it. In addition, you will reimburse us for any expenses we incur in connection with any Unsuitable Units. F-3.3 If the Elected Country is the United States or Mexico, we may, at our option, allow you to ship Units at your expense (as described in Section F-9.2) to fulfillment centers using discounted shipping rates that we may make available to you for certain carriers. In such event, you will use the processes and supply the information that we require for you to obtain such discounted rates. You also must comply with standard operating procedures, weight and size restrictions, and other shipping requirements of the applicable carriers. If we provide you with the estimated shipping costs prior to shipment, you acknowledge and agree that actual shipping costs may vary from such estimates. In addition, if the weight of the Unit, as determined by the applicable carrier, differs from that submitted by you to us for purposes of determining the estimated shipping costs, then: (a) you may be charged more than the estimated shipping costs if the carrier determines that such Unit weighs more than as submitted by you; or (b) you may be charged the full amount of the estimated shipping costs even if the carrier determines the weight to be less than that submitted by you. You will not use our carrier account information (e.g., carrier account number, amount of shipping rates, etc.) for any purpose, nor disclose such information to any third party, and you will protect such information as Amazon's confidential information in accordance with Section 11 of the General Terms of this Agreement. As between you, us and our carrier, you will be the shipper of record, and we will be the payer of record with respect to all Units shipped to us using such discounted rates. Title and risk of loss for any Unit shipped using discounted rates provided by us under this Section will remain with you, and our provision of such shipping rates will not create any liability or responsibility for us with respect to any delay, damage or loss incurred during shipment. You authorize the applicable carrier to provide us with all shipment tracking information. F-3.4 If you ship Units from outside the applicable Elected Country to fulfillment centers, you will list yourself as the importer/consignee and nominarte a customs !broker. If Amazon is listed on any import documentation, Amazon reserves the right to refuse to accept the Units covered by the import documents and any costs assessed against or incurred by Amazon will be collected from Your Bank Account, deducted from amounts payable to you, or by other method at our election. AMAZON CONFIDENTIAL 34 AMZ-KANGAR0000000034 9 F- 4 Storage We will provide storage services as described in these FBA Service Terms once we confirm receipt of delivery. We will keep electronic records that track inventory of Units by identifying the number of Units stored in any fulfillment center. We will not be required to physically mark or segregate Units from other inventory units (e.g., products with the same Amazon standard identification number) owned by us, our Affiliates or third parties in the applicable fulfillment center(s). If we elect to commingle Units with such other inventory units, both parties agree that our records will be sufficient to identify which products are Units. We may move Units among facilities. If there is a loss of or dan1age to any Units while they are being stored, we will, as your sole remedy, reimburse you in accordance with the FBA Guidelines, and you will, at our request, provide us a valid tax invoice for the compensation paid to you. If we reimburse you for a Unit, we will be entitled to dispose of the Unit pursuant to Section F-7. This reimbursement is our total liability for any duties or obligations that we or our agents or representatives may have as a bailee or warehouseman; and your only right or remedy that you may have as a bailor. At all other times, you will be solely responsible for any loss of, or damage to, any Units. Our confirmed receipt of delivery does not: (a) indicate or imply that any Unit has been delivered free of loss or damage, or that any loss or damage to any Unit later discovered occurred after confirmed receipt of delivery; (b) indicate or imply that we actually received the number of Units of Your Prodoct(s) specified by you for such shipment; or (c) waive, limit or reduce any of our r ights under this Agreement. We reserve the r ight to impose, and change from time to time, sc11edullng restrictions and volume limitations on the delivery and storage of your inventory rn f ulfillment centers, and you will comply with any of these restrictions or limitations. F-5 Fulfillment As part of our fulfillment services, we will ship Units from our inventory of Your Products to the shipping addresses in the Elected Country included in valid customer orders, or submitted by you as part of a Fulfillment Request. We may ship Units together with products purchased from other merchants, including any of our Affiliates. We also may ship Units separately that are included in a single Fulfillment Request. If you elect to participate fn our export fulfillment services, we will also ship Your Products that we determine to be eligible (each, a "Foreign- Eligible Product") to Foreign Addresses within countries we determine to be eligible for foreign shipments, subject to the additional terms on foreign shipments in the applicable FBA Guidelines. F- 6 Custome r Returns F-6. 1 You will be responsible for and will accept and process returns of, and provide refunds and adjustments for, any Multi-Channel Fulfillment Units in accordance with the Agreement (including the applicable Program Policies). AMAZON CONFIDENTIAL 35 AMZ-KANGAR0000000035 9 F-6.2 We will receive and process returns of any Amazon Ful fillment Units that were shipped to addresses within the Elected Country in accordance with the t erms of your Seller Agreement, these FBA Service Terms and the Program Policies. Any Sellable Units that are also Amazon Fulfillment Units and that are properly returned will be placed back into the inventory of Your Products in the FBA Program. We may fulfill customer orders for Your Products with any returned Amazon Fulfillment Units. Except as provided in Section F-7, you will retake title of all Units that are returned by customers. F- 6 .3 Except as provided in Section F-5, we will, at your direction, either return or dispose of any Selling on Amazon Unit that is ret urned to us and that we determine is an Unsuitable Unit as provided in Section F-7. Without Ii mitation of our rights under Section F-7 .1, we may elect to return or dispose of that Unsuitable Unit as provided in Section F-7, and you will be deemed to have consented to our election if you fail to direct us to return or dispose of the Unsuitable Unit within ninety (90) days after we notify you of the Unsuitable Unit. F-6.4 If Amazon receives a customer ret urn of a Multi-Channel Fulfillment Unit, you will direct us to return or dispose of the Unit at your own cost failing which we may dispose of the Unit as provided in Section F-7. F-7 Returns to You and Disposal F- 7.1 You may, at any time, requ est that Units be returned to you. We may return Units to you for any reason, including upon termination of these FBA Service Terms. These returned shipments will be sent to your designated shipping address that is within the Elected Country (or, at Amazon's sole discretion, your designated shipping address). If the address we have for you is outdated, incorrect or outside the Elected Country, or if we cannot make arrangements for you to pay for the return shipment, the Unit(s) will be deemed abandoned and we may elect to dispose of the Unit(s) as provided in this Agr eement. F- 7 .2 You may, at any ti me, request that we dispose of Units. We may dispose of any Unit we are entitled to dispose of in the manner we prefer. lltle to each disposed Unit will transfer to us at no cost to us as necessary for us to dispose of the Unit, and we will retain all proceeds, if any, received from the disposal of any Unit. F- 7 .3 You will promptly notify us of any recalls or threatened recalls of any of Your Products and cooperate and assist us in connection with any recalls, including by initiating the procedures for returning items to you under our standard processes. You will be responsible for all costs and expenses you, we or any of our or your Affiliates incur in connection with any recall or threatened recall of any of Your Products (including the costs to return, store, repair, liquidate or deliver to you or any vendor any of these products). AMAZON CONFIDENTIAL 36 AMZ-KANGAR0000000036 9 F-8 Customer Service F- 8.1 For Multi-Channel Fulfillment Units we wi1ll have no customer service obligations oth er than to pass any inquiries to your attention at the contact you provide, and to make available a reasonable amount of information regarding the status of the fulfillment of Your Products if you request it and if and to the extent we possess the requested information. You will ensure that all of your policies and messaging to your customers regarding shipping of Your Products and other fulfillment-related matters, reflect our policies and requirements, including with regard to shipping methods, returns and customer service; and, you will conspicuously display on your website(s), jn emails or in ·Other media or communications any specific disclosures, messaging, notices, and policies we require. F-8.2 We will be responsible for and have sole discretion regarding all customer service issues relating to packaging, handling and shipment and customer returns, refunds and adjustments related to Amazon Fulfillment Units. We will have the right to determine whether a customer will rece.ive a refund, adjustment or replacement for any Amazon Fulfillment Unit and to require you to reimburse us where we determine you have responsibility in accordance w~th the Agreement (including these FBA Service Terms and the Program Policies). Except as provided in this Section F-8 regarding any Amazon Fulfill1ment Units, customer service will be handled in accordance with your Seller Agreement. F- 8 .3 In situations relating to Amazon Fulfillment Units where the wrong item was delivered or the item was damaged or lost or is missing, unless we determine that the basis for such request is caused by you or any of your employees, agents or contractors, we will, as your sole and exclusive remedy and at our option: (a) for any Amazon Fulfillment Unit, (i) ship a replacement Unit to the customer and reimburse you in accordance with the FBA Guidelines for the replacement Unit, or (ii) process a refund to the customer and reimburse you in accordance with the FBA Guidelines for the Unit; or (b) for any Multi-Channel Fulfillment Unit, reimburse you in accor dance with the FBA Guidelines for the Unit (and you will, at our request, provide us a valid tax invoice for the compensation paid to you). Any customer refund will be processed in accordance with the Selling on Amazon and the Transaction Processing Service Terms (if the Elected Country for a Service is the United States) . Notwithstanding the Selling on Amazon Service Terms, we will be entitled to retain the applicable fees payable to us under the Selling on Amazon Service Terms and these FBA Service Terms, respectively. Except as expressly provided in this Section f -8 .3, you will be responsible for all costs associated with any repla·cement or return. F-8.4 If we provide a replacement Unit or refund as described in Section F-8.3 to a customer and that customer returns the original Unit to us, we will be entitled to dispose of the Unit pursuant to Section .E::..Z, or, if it Is a Sellable Unit, we may, at our option, place such Unit back into your inventory in accordance with Section F-6. If we do put a Uniit back into your inventory, you will reimburse us for the applicable Replacement Value (as described in the FBA Guidelines) of the returned Unit. Any repla·cement Unit shipped by us under these FBA Service Terms will be deemed to be, and will be treated in the same manner as, an order and sale of such Uni t from you to the customer via the AMAZON CONFIDENTIAL 37 AMZ-KANGAR0000000037 9 applicable Amazon Site or Service in accordance with, and SU1bject to, the terms and conditions of this Agreement and your Seller Agreement. F-9 Compensation for Fulfillment Services F-9.1 Handling and Storage Fees. You will pay us the applicable fees described in the applicable FulfilLment by Amazon Fee Schedule. You will be charged the Storage Fees beginning on the day (up to midnight) that the Unit arrives at a fulfillment center and is available for fulfillment by Amazon (or in the case of any Unsuitable Unit, the arrival day (up to midrnight)), until the earlier of: (a) the day (up to midnight) we receive a valid customer order for such product or a request from you to return or dispose of the Unit; or (b) the day (up ~o midnight) we actually ship th~ Unit to your designated return location or dispose of the Unit. F-9.2 Shipping and Gift Wrap. For any Amazon Fulfillment Units we will determine the amounts charged to the customer for shipping and gift wrap services for the Units that we fulfill through the FBA Program. As between you and us, these charges will be your charges to the customer, and we will report them to you. We will charge you (and you will pay us) a fee equal to the amount of such charges to the customer. In the case of shipments of Units sold through the Amazon Site that qualify for the "Free Shipping" promotion, the amounts charged to the customer for shipping the Selling on Amazon Units that Amazon fulfills will first be charged to the customer and will next be deducted from the total charges to the customer as your promotion and Amazon will not charge you the fee described above. If the Elected Country is the United States and you ship Units to us using the shipping rates that we may make available pursuant to Section F-3.3, you will reimburse us for the actual amounts charged to us by the applicable carrier for such shipments. F- 9 .3 Proceeds. We may keep all proceeds of any Units that we dispose of or to which title transfers, including returned, damaged or abandoned Units. You will have no security interest, lien or other claim to the proceeds that we receive in connection with the sale, fulfillment and/or shipment of these Units. F- 10 Indemnity In ad'dition to your obligations under Section 6 of the General Terms of this Agreement, you also agree to indemnify, defend and hold harmless us, our Affiliates, and our and their respective officers, direct ors, employees, representat ives and agents against any Claim that arises from or relates to: (a) the Units (whether or not title has transferred to us, and including any Unit that we identify as yours pursuant to Section F-4 regardless of whether such Unit is the actual item you originally sent to us), including any personal injury, death or property damage; (b) the shipment, export or delivery of Your Products to Foreign Addresses (including with respect to any classification data and other information provi·ded by you to us in connection therewith, and notwithstanding any rights we have under Section E5 or any certifications we may make in connection with the shipment, export or dell very of Your AMAZON CONFIDENTIAL 38 AMZ-KANGAR0000000038 9 Products)i (c) any o f Your Taxes or the collection, payment or failure to collect or pay Your Taxes; and, i f applicable (d) any sales, use, value added, personal property, gross receipts, excise, franchise, business or other taxes or fees, or any customs, duties or similar assessments (including penalties, fines or interest on any of the foregoing) imposed by any government or other taxing authority in connection with the shipment of Foreign-Eligible Products to Foreign Addresses (collect ively, "Foreign Shipment Tax es"). F- 11 Release You 1 on behalf of yourself and any successors, subsidiaries, Affiliates .. officers, directors, shareholders, employees, assigns and any other person or entity claiming by, through, under or in concert with them (collectively, the "Releasing Parties"), 1irrevocably acknowledge full and complete satisfaction of and unconditionally and irrevocably release and forever fully discharge Amazon and each of our Affiliates, and any and all of our and their predecessors, successors, and Affiliates, past and present, as well as each of our and their partners, officers, directors, shareholders, agents, employees, representatives, attorneys, and assigns, past and present, and each of them and all Persons acting by, through, under or in concert with any of them (collectively, the "Relea sed Pa rties"), from any and all claims, obligations, demands, causes of action, suits, damages, losses, debts or rights of any kind or nature, whether known or unknown, suspected or unsuspected, absolute or contingent, accrued or unaccrued, determi ned or speculative (collectively, "Losses") which the Releasing Parties now own or hold or at any time have owned or held or in the future may hold or own against the Released Parties, or aniy of them, arising out of, resulting from, or in any way related to the shipment, export or delivery of Your Products to Foreign Addresses, including any tax registration or collection obligations. You, on behalf of yourself and all other Releasing Parties, recognize that you, and each of them, may have some Losses, WHETHER IN TORT, PRODUCT LIABILITY, CONTRACT, WARRANTY OR OTHERWISE, against the Released Parties of which you, or any of them, are totally unaware and unsuspecting, or which may arise or accrue after the date you register for or use FBA, which the Releasing Parties are giving up by agreeing to these FBA Service Terms. It is your intention in agreeing to t hese FBA Service Terms that these FBA Ser vice Terms will deprive· t he Releasing Parties of each and all such Losses and prevent the Releasing Party from asserting any such Losses against the Released Parties, or aniy of them. In addition to the foregoing, you acknowledge, on behalf of yourself and all other Releasing Parties that you are familiar with Section 1542 of the Civi l Code of the State of California, as follows: "A general release does not extend to claims which the cre ditor does not know or .suspe ct to ex ist in his favor at the time of e xecuting the re lease, which if known by him must have mate ria lly affected his settlement with the debtor." You, on behalf of yourself and all other Releasfng Parties, expressly waive and relinquish any rights that you had or may have under Section 1542 of the Civil Code of the State of California or any similar AMAZON CONFIDENTIAL 39 AMZ-KANGAR0000000039 9 provision of the law of any other j urisdiction, to the full extent that you may lawfully waive all such rights pertaining to the subject matter of these FBA Service Terms. F-12 Disclaimer IN ADDITION TO THE DISCLAIMER IN SECTION 7 OF THE GENERAL TERMS OF THIS AGREEMENT, WE DISCLAIM ANY DUTIES OF A BAILEE OR WAREHOUSEMAN, AND YOU WAIVE ALL RIGHTS AND REMEDIES OF A BAILOR (WHETHER ARISING UJNDER COMMON LAW OR STATUTE OR OTHERWISE), RELATED TO OR ARISING OUT OF ANY POSSESSION, STORAGE OR SHIPMENT OF YOUR PRODUCTS BY US OR OUR AFFILIATES OR ANY OF OUR OR THEIR CONTRACTORS OR AGENTS. F- 13 Effect of Te rmination Following any termination of the Agreement or these FBA Service Terms in connection with a particular Elected Country, we will, as directed by you, return to you or dispose of the Units held in that Elected Country as provided in Section F- 7. If you fail to direct us to return or dispose of the Units within ninety (90) days after termination, then we may elect to return and/or dispose of the Units in whole or in part, as provided in Section F-7, and you will be deemed to have consented to this. Upon any termination of these FBA Service Terms in connection with a particular Elected Country, all rights and obligations of the parties under these FBA Service Terms in connection with such Elected Country will be extinguished, except that the rights and obligations of the parties under Sections F- 1. F-2. F-3. F-4, F-5, F-6, F-7, F-8, F-9, F-11. F-12 and F-13 with respect to Units recei ved or stored by Amazon as of the date of termination will survive the termination. F-14 Tax Matters You understand and acknowledge that storing Units at fulfillment centers may create tax nexus for you in any country, state, province, or other localities in which your Units are stored, and you will be solely responsible for any taxes owed as a result of such storage. If any Foreign Shipment Taxes or Your Taxes are assessed against us as a result of performing services for you in connection with the FBA Program or otherwi se pursuant to these FBA Service Terms, you will be responsible for such Foreign Shipment Taxes and Your Taxes and you will indemnify and hold Amazon harmless from such Foreign Shipment Taxes and Your Taxes as provided in Section F-10 of these FBA Service Terms. F-15 Additional Representation In ad1dition to your representations and warranties in Section 5 of the General Terms of t h is Agreement, you represent and warrant to us t hat: (a) you have valid legal title to all Units and all necessary rights to distribute the Units and to perform under these FBA Service Terms; (b) you will deliver all Units to us in new condition (or in such condition otherwise descr ibed by you in the applicable Your Product listing) and in a merchantable condition; (c) all Units and their packaging will comply with all applicable marking, labeling and other requirements required by Law; (d) no Unit is or AMAZON CONFIDENTIAL 40 AMZ-KANGAR0000000040 9 will be produced or manufactured, in whole or in part, by child labor or by convict or forced labor; (e) you and all of your subcontractors, agents and suppliers involved in producing or delivering Units will strictly adhere to all appli·cable Laws of the Elected Country, its territories and all other countries where Units are produced or delivered, regarding the operation of their facilities and their business and labor practices, including working conditions, wages, hours and minimum ages of workers; and (f) that all Foreign-Eligible Products (i) can be lawfully exported from canada, Mexico, Japan, or the United States, as applicable, Witl1out any license or other authorization; and (ii) can be lawfully imported into, and comply with all applicable Laws of, any eligible country. FBA Definitions "Amazon Fulfillme nt Units" means Units fulfilled using FBA that are sold through an Amazon Site. For avoidance of doubt, if you have successfully registered for or used both the FBA and Selling on Amazon Servfces, then the term ''Amazon Fulfil:lment Units'' and the defined term "Amazon Fulfilled Products'' in the Selling on Amazon Service Terms both refer to the same items. "FBA Exclude d Product" means any Unit that is an Excluded Product, or Is otherwise prohibited by the applicable Program Policies. "Foreign Address:" means (a) ifthe Elected Country is the United States, any mailing address that is not (i) within the fifty states of the United States or Puerto Rbco, or (ii) an APO/FPO address; and (b) if the Elected Country is not the United States, any mailing address that is not within the Elected Country. " Fulfillment Request " means a request that you submit to us (in accordance with the standard methods for submission prescribed by us) to fulfill one or more Multi-Channel Fulfillment Units. "Mult i-Channel Fu lfillment Units" has the meaning in Section f -2. "Sellable Unit" means a Unit that is not an Unsuitable Unit. "Se ller Agreement" means the Selling on Amazon Service Terms, the Merchants@ Program Agreement, the Marketplace Participation Agreement, any successor to any of these agreements, or any other similar agreement (as determined by Amazon) between you and us that permits you to offer products and services via a particular Amazon Site. "Ship ping I nformation" means with respect to any purchased Unit(s), the following information: the name of the recipient, the shipping address, the quantity of Units to be shipped, and any other shipping-related information we may reasonably request. "Unit" means a unit of Your Product thtit you deliver to Amazon in connection with the FBA Program. AMAZON CONFIDENTIAL 41 AMZ-KANGAR0000000041 9 "Unsuitable Unit" means a Unit: (a) that is defective, damaged, or lacking required label(s); (b) the labels for which were not properly registered with Amazon before shipment or do not match the product that was registered; (c) that is an FBA Excluded Product or does not comply with the Agreement (including applicable Program Policies); (d) that Amazon determines is unsellable or unfulfillable; or (e) that Amazon determines is otherwise unsuitable. AMAZON CONFIDENTIAL 42 AMZ-KANGAR0000000042 9 Product Ads Service. Tenns Amazon Product Ads, including Amazon Sponsored Products ("Product Ads"), is a Service that allows you to advertise Your Products 011 Amazon Network Properties. These Product Ads Service Terms are part of the Agreement, and, unless specifically provided otherwise, concern and apply only to your participation in Product Ads. BY REGISTERING FOR OR USING PRODUCT ADS, YOU (ON BEHALF OF YOURSELF OR THE BUSINESS YOU REPRESENT) AGREE TO BE BOUND BY THE AGREEMENT, INCLUDING THESE PRODUCT ADS SERVICE TERMS. PA-1 Product Ads Your Product Ads may be displayed or made available on Amazon Network Properties as we determine. We do not guarantee that Your Product Ads will be displayed or made available on any Amazon Network Property, or that Your Product Ads will appear in any particular position or rank. Notwithstanding any other provision of the Agreement, we may in our sole discretion restrict, modify or otherwise determine the content, appearance, design, functionality and all other aspects of Your Product Ads, and we may remove any of Your Product Ads without notice. Except to the extent expressly stated in the Agreement, you are solely responsible for all obligations, risks and other aspects pertaining to the sale of any products referred to in Your Product Ads, including order processing, order fulfillment, returns, refunds, recalls, rnisdelivery 1 theft, customer service, and collection of taxes. In addition, you are solely responsible for all ad content, URLs and any other information you submit to us in connection with Your Product Ads, and the websites and/or other properties to which Your Product Ads direct users (other than the Amazon Site). We may use mechanisms that rate, or (}!low us,ers to rate, Your Products and/or your performance, and we may make these ratings and feedback publicly available. We may use any means we determine necessary to review and monitor Your Product Ads to improve our service and ad quality, PA-2 Product Information You will, in accordance with applicable Program Policies, provide, in the format we require, accurate and complete information for each of Your Product Ads. You will update this information as necessary to ensure that it is at all tlmes accurate and complete. You will not provide any information for, or otherwise seek to advert1se for sale on any Amazon Network Property, any products that are unlawful or are ottierwise prohibited by applicable Program Policies. PA-3 Product Ads Requirements Using the highest industry standards, you will treat users and customers who link to your products via any of Your Product Ads with courtesy and respect during all stages Of the buying process and resolve to our and their satisfaction in a timely and professional manner any related customer service matters AMAZON CONFIDENTIAL 43 AMZ-KANGAR0000000043 9 we orr they bring to your attention. You will ensure that Your Materials and your advertisement, offer, sale and fulfillment of Your Products comply with all applicable Laws and Program Policies. You will not, directly or indirectly, engage in any fraudulent, impermissible, inappropriate or unlawful activities in connection with your participation in Product Ads, including: (a) sending multiple listings of identical products in the same feed or sending multiple feeds under different accounts; (b) generating fraudlulent, repetitive or otherwise invalid clicks, impressions, queries or other interactions, whether through the use of automated applications or otherwise; (c) collecting any user information from any Amazon Network Property or retrieving, extracting, indexing or caching any portion of any Amazon website or services or the websites or services of our Affiliates, whether through the use of automated applications or otherwise; (d) targeting communications of any kind on the basis of the intended recipient being a user of any Amazon Network !Property; (e) interfering with the proper working of any Amazon Network Property, Product Ads or our systems; or (f) attempting to bypass any mechanism we use to detect or prevent any of the activities described in this paragraph. PA-4 Payment and Tax Matters You will pay us the applicable fee per Click. The per Click fee will be determined solely by Amazon based on the amount you bid for each of Your Product Ads, consistent with any applicable product category minimums and Program Policies. You agree to pay us the applicable fees we calculate for your use of the Product Ads Service in the applicable Local Currency only. In addition to any other means permitted by the Agreement, we may collect the applicable fees: (a) in accordance with the payment ladder described in the Program Policies; and (b) on a recurring monthly basis for any remaining unpaid fees accrued after the last ladder payment charged each month. If we choose to invoice you for amounts due to us under the Agreement, you will pay the invoiced amounts within 30 days of the date of the applicable invoice. We may require payment of interest at the rate of 1.5% per month or the highest legally permissible rate, whichever is lower, on all amounts not paid when due until paid in full. You will reimburse us for all fees incurred in connection with our collection of amounts payable and past due. You waive all claims related to the fees we charge (including fees based on suspected invalid Clicks on or invalid impressions of Your Product Ads), unless claimed within 60 days after the date charged. You understand third parties may generate impressions or Clicks on Your Product Ads for improper purposes and you accept this rrisk. Your sole and exclusive remedy for any suspected invalid impressions or Clicks is to request advertising credits within the timeframe set out above. PA-5 Effect of Termination Upon any termination of the term of the Agreement or these Product Ads Service Terms, all rights and obligations of the p·arties under these Product Ads Service Terms will terminate, except that Sections PA-1, PA-2, PA-4, PA-5, PA-6 and PA-7 will survive termination. AMAZON CONFIDENTIAL 44 AMZ-KANGAR0000000044 9 PA-6 Age nts If you are an Agent: (a) you represent and warrant that you have been appointed as an agent of a Product Ads Participant, that you are duly authorized to enter into this Agreement on behalf of the Product Ads Participant and have full power and authority to bind the Product Ads Participant to this Agreement, and that the Agreement including these Product Ads Service Terms will be enforceable against the Product Ads Participant in accordance with its terms; (b) you will, upon our request, provide us written confirmation of the agency relationship between you and the Product Ads Participant, including, for example, the Product Ads Participant's express acknowledgment that you are its Agent and are authorized to act on its behalf in connection with Product Ads; (c) except as set forth in the Agreement, you will not make any representation, warranty, promise or guarantee about Product Ads, us or your relationship with us; (d) you will perform your duties pursuant to the Agreement including these Product Ads Service Terms in a professional manner consistent with any requirements we may establish; (e) you will not at any time use information received in connection with Product Ads to conduct any marketing efforts targeted at our existing advertisers or Product Ads Participants; and (f) you and the Product Ads Participant are each responsible for all payment obligations under these Product Ads Service Terms, and you and the Product Ads Participant each waive any rights that might require us to proceed against one or more of you prior to proceeding against the other. PA-7 Miscellaneous PA-7.1 Representations In adldition to your representations and warranties in Section 5 of the Agreement, you represent and warrant to us that: (a) on any website to which Your Product Ads link (other than on the Amazon Site), you will at all times post and comply with a privacy policy that complies with all applicable Laws; and (b) Your Materials and any information displayed on your website or on any website to which Your Product Ads link (for the Amazon Site, only to the extent such information is based on Your Materials) comply with all applicable Laws (including all marking and labelling requirements) and do not contain any false, misleading, infringing, defamatory, obscene or sexually explicit materials (except to the extent expressly permitted under applicable Program Policies). PA-7.2 Indemnifi.cation In ad!dition to your obligations under Section 6 of the Agreement, you agree to indemnify, defend and hold harmless us, our Affiliates, and our and their respective officers, directors, employees, representatives and agents against any Claim arising from or related to: (a) your participation in Product Ads, including the display of any of Your Product Ads, any website, Content, data, materials or other items or information to which Your Product Ads link, an:d any actual or alleged infringement of AMAZON CONFIDENTIAL 45 AMZ-KANGAR0000000045 9 any Intellectual Property Right s by any of t he foregoing; and (b) if you are an Agent, any breach 01 alleged breach of your representations and warranties set forth in these Product Ads Service Terms. PA-7.3 Disclaimers IN ADDITION TO THE DISCLAIMERS IN SECTION 7 OF THE AGREEMENT, WE AND OUR AFFILIATES DISCLAIM AND YOU WAIVE ALL CLAIMS REGARDING ANY GUARANTEES ABOUT TIMING, POSillONING, ADJACENCY, PERFORMANCE, QUANTITY OR QUALITY OF (AS APPLICABLE): PLACEMENTS, TARGETING, IMPRESSIONS, CUCkS, CLICK RATES, CONVERSION RATES, AUDIENCE SIZE, DEMOGRAPHICS OR ADVERTISING COSTS. Product Ads Definitions "Agent" means an advertising agency or other person or entity who represents a Product Ads Participant. "Amazon Network Properties" means: (a) the Amazon Site; (b) any website, device, service, feature or other online point of presence operated by Amazon or any of our Affiliates; and (c) any Amazon Associated Properties. "Click" means each time a user clicks on any of Your Product Ads as determined solely by Amazon. "Product Ads Participant'' means any person or entity enrolled in Product Ads by you if you are the Agent of that person or entity. "Your Product Ads" means any advertisement for Your Product based upon Your Materials that is displayed through Product Ads. AMAZON CONFIDENTIAL 46 AMZ-KANGAR0000000046 9 Transaction Processing Service Terms BY REGISTERING FOR OR USING ANY SERVICE OTHER THAN PRODUCT ADS FOR WHICH THE ELECTED COUNTRY IS THE UNITED STATES, YOU (ON BEHALF OF YOURSELF OR THE BUSINESS YOU REPRESENT) AGREE TO BE BOUND BY THESE TRANSACTION PROCESSING SERVICE TERMS FOR THAT SERVICE. NOTWiliHSTANDING THE FOREGOING, IF A SEPARATE AGREEMENT GOVERNS THE OFFER, SALE OR FULFILLMENT OF YOUR PRODUCTS ON THE US AMAZON SITE, THE TERMS OF THAT AGREEMENT WILL CONTINUE TO GOVERN THE PROCESSING OF YOUR TRANSACTIONS TO THE EXTENT DESCRIBED IN THAT AGREEMENT. P- 1 Payments Processing Agency Appointment You authorize Amazon Payments, Inc. ("Amazon Payments") to act as your agent for purposes of processing payments, refunds and adjustments for Your Tran:sactions, receiving and holding Sales Proceeds on your behalf, remitting Sales Proceeds to Your Bank Account, charging your Credit Card, and paying Amazon and its Affiliates amounts you owe in accordance With this Agreement or other agreements you may have with Amazon Affiliates. Amazon Payments provides the services described in these Transaction Processing Service Terms and the related services described in Sections 5 -1.4, s- 2.2, S- 6, W-3.2, W-3 .3, W- 3.4, W-6.3.2, W-6.3.3, W-7.5, and F-8.3 of the Agreement (collectively, the "'Transaction Processing Services"). When a buyer instructs us to pay you, you agree that the buyer authorizes and orders us to commit the buyer's payment (less any applicable fees or other amounts we may collect under this Agreement) to you. You agree that buyers sati sfy their obligations to you for Your Transactions when we receive the Sales Proceeds. We will remit funds to you in accordance with this Agreement. P-2 Remittance Amazon Payments will remit funds to you in accordance with Sections S-6 and W- 6.3 .2 of the Agreement and these Transaction Processing Service Terms. Amazon Payments' obligation to remit funds collected by it on your behalf is limited to funds that have actually been received by Amazon Payments less amounts owed to Amazon, subject to chargeback or reversal or withheld for anticipated claims in accordance with this Agreement. Without limiting Amazon's rights to collect any amounts you owe, including as described in Section 2 of the General Terms of this Agreement, Amazon Payments' receipt of Sales Proceeds discharges your obligation to pay applicable fees and other amounts under this Agreement to the extent the Sales Proceeds equal or exceed the fees and other amounts you owe and the Sales Proceeds are applied to the payment of those fees and a mounts. P-3 Your Funds Your Sales Proceeds will be held in an account with Amazon Payments (a "Seller Account") and will represent an unsecured claim against Amazon Payments. Your Sales Proceeds are not insured by the AMAZON CONFIDENTIAL 47 AMZ-KANGAR0000000047 9 Federal Deposit Insurance Corporation. Prior to disbursing funds to you, Amazon Payments may combine Sales Proceeds held with the funds of other users of the Services, invest them, or use them for other purposes permitted by applicable Laws. You will not receive Interest or any other earnings on any Sale Proceeds. To the extent required by applicable Laws, Amazon Payments will not use any funds held on your behalf for its corporate purposes, will not voluntarily make such funds available to its creditors in the event of bankruptcy or for any other purpose, and will not knowingly permit its creditors to attach such funds. P-4 Verification We may at any time require you to provide any financial, business or personal information we request to verify your Identity. You authorize us to obtain from time to time consumer credit reports to establish or update your Seller Account or Jn the event of a dispute relating to this Agreement or the activity under your Seller Account. You agree to update all Seller Account information promptly upon any change. The Amazon Payments Privacy Notice applies to your use of the Transaction Processing Services. P- 5 Dormant Accounts If there is no activity (as determined by us) in connection with your Seller Account for the period of time set forth in applicable unclaimed property laws and we hold Sales Proceeds on your behalf, we will notify you by means designated by us and provide you the option of keeping your Seller Account open and maintaining the Sales Proceeds in your Seller Account. If you do not respond to our notice(s) within the time period we specify, we will send the Sales Proceeds In your Seller Account to your state of residency, as determined by us based on the information in your Seller Account. If we are unable to determine your state of residency or your Seller Account ts associated with a foreign country, your funds may be sent to the State of Delaware. AMAZON CONFI DENTIAL 48 AMZ-KANGAR0000000048

Exhibit B

Exhibit B 4/11/2018 Fulfillment By Amazon {FBA} fu lfillment services - Amazon.com amazon '..._;) services Help grow your business with Fulfi llment By Amazon Let Amazon pick, pack, and ship your orders You sell it, we ship it. Amazon has created one of the most advanced fulfillment networks in the world, and your business can benefit from our expertise. With Fulfillment by Amazon (FBA), you store your products in Amazon's fulfillment centers, and we pick, pack, ship, and provide customer service for these products. Best of all, FBA can help you scale your business and reach more customers. Save time and grow your business with these benefits https://services.amazon.com/fulfillment-by-amazon/benefits.htm?ld=SCFBAStriplogin 1/3 AMZ-KANGAR0000002930 4/11/2018 Fulfillment By Amazon {FBA} fu lfillment services - Amazon.com fttlt2DAY SHIPPING amazon.com 1 - Prlme Your products are eligible for Amazon Prime FREE Two-Day Shipping, FREE Shipping, and other benefits. Prime members love FREE Two-Day Shipping, and all Amazon.com customers can get FREE Shipping on eligible orders. When you list your products w ith FBA, your products are eligible for free shipping, too. As you grow your competitive edge, you can increase your chance of winning the Buy Box. Plus, when you register for an Amazon.com seller account, you can sell on Amazon's marketplaces in Canada and Mexico. If you also enable FBA for products you list on Amazon.ca and Amazon.com.mx, you can reach even more customers across North America who love Amazon's trusted fast, FREE Shipping. Customers get Amazon's trusted customer service and returns. FBA handles customer service and returns for Amazon.com orders. Listings are displayed with the Prime logo, so customers know that Amazon handles packing, delivery, customer service, and returns. Our services let your business grow quickly. Our fulfillment centers are built w ith your inventory in mind, and there's no minimum in the number of units you must send. We handle the details to save you time, so you can focus on your business. You can fulfill orders from other channels. With Multi·Channel Fulfillment, you can fulfill o rders from other sales channels using your inventory stored in Amazon fulfillment centers. Single-source your inventory to streamline your fu lfi llment operations. You manage your inventory through an online user interface and can direct Amazon to return your inventory in our fulfillment centers at any time. https://services.amazon.com/fulfillment-by-amazon/benefits.htm?ld=SCFBAStriplogin 213 AMZ-KANGAR0000002931 4/11/2018 Fulfillment By Amazon {FBA} fu lfillment services - Amazon.com It's cost-effective and simple. Pay as you go-you are charged for storage space and the orders we fu lfil l. The cost of shipping is included in your fees, with no extra charge for Amazon Prime FREE Two-Day Shipping and FREE Shipping on eligible orders. Fees for Selling on Amazon and optional services may apply. Get started New to selling on Amaion? Sign u p h ere https://services.amazon.com/fulfillment-by-amazon/benefits.htm?ld=SCFBAStriplogin 3/3 AMZ-KANGAR0000002932

Exhibit C

Exhibit C Amazoo.com • Report Infringement "' NEW & INTERESTING FI NDS ON AMAZON f§b+ff " . ama~~n - Free Shipping on eligible orders over $25 Er J He"o Sign 1ri ~ Departments • Your Amazon corn Today"s Deals Gift Cards & Re @ • Account & Lists • Orders Try Prime • • • Cart Report Infringement About this Page Th is form is intended for use by intellectual property rights owners and their agents to notify Amazon of a lleged intellectual property infringements such as co pyright and trademark concerns. If yo u are not an intellectual property rights owner or their agent, Amazon will not be able to process complaints submitted through this form. Please report your concerns to Amazon through t he appropriate venue: • Sell ers may use th is contact us form to report Inappropriate listings, other sellers, policy violat ions, etc. • Buyers may use th is contact us form to report prob lems w ith orders, seller policy violations, etc. We Do Not Enforce Detail Page Ownership and Image Restrictions: When a detail page is created, it becomes a permanent catalog page on Amazon.com that wi ll remain even if the creator's inventory sells out. Additionally, when you add your copyrighted image to a detail page, you grant 11.mazon and its affiliates a non-exclusive, worldwide, royalty-free, perpetual, irrevocable right to exercise all rights of publicity over the material. Other sellers can list their items for sa le against pages that you have created or added your copyrighted images to. However, we do requ ire sellers to list on ly against detail pages that exactly match their items. If you believe sellers are listing against detail pages that do not exactly match their items, we ask that you report the violation directly by using the contact us form. If your copyrighted image has been added to our cata log without you r consent, please comp lete the form below. Exclusive or Selective Di stribution: Amazon respects a manufacturer's right to enter into exclusive distribution agreements for its products. However, violations of such agreements do not constitute intellectual property rights infringement. As the enforcement of these agreemen ts is a matter between the manufacturer and the retailers, it would not be appropriate for Amazon to assist in enforcement activities. Want to sign in? If you sign in with your reporting ema il address, we can auto-popu late some of the information in the reporting form below. You do not need to sign-in to report infringement. If you want to sign in, please click t he Sign In button below. Sign in Allegation of Infringement Are you the Rights Owner or an Agen t ? 0 Rights Owner 0 Agent The primary complaint pertains t o The spec ific concern is Name of Brand Additional Information https:/lwww.amazon.com/gplhclplroports/infringemcDL[8121/201 7 12: 13:00 PM] AMZ-KANGAR0000000049 Amazoo.com • Report Infringement 4000 The ASIN (Amazon Standard Identification Number) or the URL of each product you are reporting. You can report up to 50 products for the same specific concern in 1 form. If you have different concerns to report, please submit 1 form for each concern. ASIN/ ISBN- 10 OR Product URL Your Contact Details This is the contact Amazon will use. Are you a seller on Amazon? 0 Yes 0 No First Name Last Name L ~ Company (Optional) Address Line 1 Address Line 2 (Optiona I) City State (Optional) ZIP Code c Country Phone Number E-mail Address c Confirm E-mail Address Secondary Contact Details The contact details which we will provide to Third Party Sellers (if relevant) for queries regarding this notificat ion. O Use the contact details provided above https:/lwww.amazon.com/gplhclplroports/infringemcDL[8121/201 7 12: 13:00 PM] AMZ-KANGAR0000000050 Amazoo.com • Report Infringement Name E-mail Address Statements "I have a good faith belief that the content(s) described above violate(s) my rights described above or those held by the rights owner, and that the use of such content(s) is contrary to law." "I declare, under penalty of perjury, that the information contained in this notification is correct and accurate and that I am the owner or agent of the owner of the rights described above." 0 I have read and accept the statements above. Submit https:/lwww.amazon.com/gplhclplroports/infringemcDL[8121/201 7 12: 13:00 PM] AMZ-KANGAR0000000051 Amazoo.com • Report Infringement ConcJ1t1ons of Use Pr1vacv: Jct ce lnteres:: Based Ads https:/lwww.amazon.com/gplhclplroports/infringemcDL[8121/201 7 12: 13:00 PM] AMZ-KANGAR0000000052

Exhibit D

Exhibit D Amazoo.com Help: Amazon Anli·Counterfeiting Policy "' N EW & INTERESTING FI NDS ON AMAZON f§b+ff " . ama~~n m ~ !-1- Deals in Back to School Er J He"o Sign 1ri ~ Departments • Your Amazon corn Today"s Deals Gill Cards & Re @ • Account & Lists • Orders Try Prime • • • Cart Selling at Amazon.com Policies and Agreements Amazon Anti-Counterfeiting Policy Topics Search Help: (I S~aich S&ller Help Seller Support < General Help Please use t he e-mail address associated with your Amazon.com Policies and Agreements Seller accounl Amazon Currency Converter for Amazon Anti-Counterfeiting Policy (Contact Us) Sellers Terms and Conditions Customers trust that they can always buy with confidence on Amazon.com. Selling Policies Products offered for sale on Amazon.com must be authentic. The sal e of Product Guidelines counterfeit products, i ncluding any products that have been illegally replicated, Other Help Sites category, Product, and Listing reproduced, or manufactured, is strictly prohibited. Restnct1ons Sell on Amazon We take product authenticity very seriously. It is each seller's responsibility to source IRS Reporting Regulabons on Associates Program Help and sell only aulhentic products. If you sell counterfeit goods. w e may immediate ly Third-Party Payment Transactions suspend or tenninate your selling privileges and destroy inventory in o ur fulfillment Amazon W;!b SeMces Tax Calculation Services Terms centers wtthout reimbursement. In addition, we do not pay sellers until we are Amazon Anti-Counterfeiting Publisher and Vendor Help confident our customers have received the products they ordered, and if we Policy determine that a seller account has been used to engage in fraud or other illegal Ayuda en Espanol FBA lnventOf)' Placement Program Terms and Condibons activity, remittances and payment s may be withheld or torfetted. The sale of counterfett goods can also lead to legal action by rights holders and civil and criminal Important Notice for International Sellers penallies. C.ountnes Accepted for Seller We are constantly innovating on behalf of our customers and working with Reg1strat1on manufacturers, content owners, vendors, and sellers to improve the ways we detect Trademark Usage Guidelines and prevent counterfeit products from reaching our marketplace. We work hard on Loan Agreement this issue every day because we know that our customers trust that they are buying European Value Added Tax (EU authentic products w hen they shop on Amazon .com. This is why we stand behind lhe VAT) Registration Agreement products sold on our site wtth our A-to-z Guarantee. We also encourage anyone who Professional Selling Plan Insurance has a product authenticity concern to notify us, and we will investigate tt thoroughly Requiremenls and take any appropriate actions. Product Availabillty Polley for Manufacturers Customization Program Terms for Sellers other Help Areas Shipping & Delivery Returns & Refunds Managing Your Account Payment, Pncing & PromotJOns Ordering Kindle Amazon Fire TV Digital Music. Instant Video & Apps Gifts. Gift Cards & Registnes Secunty & Pnvacy Author, Publisher & Vendor Guides Srte Features Back to top https://www.amazon.com/gplhclp/cuslomeddi•play.hunVrefe bp_ rel_topic?ic•UTF8&11ocleld~2011 6601 0(812 1 /'2017 12: 17:06 PM) AMZ-KANGAR0000000053 Amazoo.com Help: Amazon Anli·Counterfeiting Policy Get to Know Us Make Money with Us Amazon Payment Products Let Us Help You Careers Sell on Amazon Amazon Rewards Visa Signature Cards Your Account Aboul Amazon Sell Your Services on Amazon Amazon.ccrn Store Card Your Orders lnveslor Relations Sell on Amazon Business Amazon.ccm Corporate Credit Line Shipping Rates & Policies Amazon Devices Sell Your Apps on Amazon Shop with Points Amazon Prime Become an Affiliate Credit Card Marketplace Returns & Replacemen ls Advertise Your Producls Reload Your Balance Manage Your Content and Devices Sell-Publish with Us Amazon Currency Converter Amazon Assistanl Become an Amazon Vendor Help Sell Your Subscription on Amazon >See all amazon ..._o @ English ~ United Stales Amazon M<i5K Arnazori Or 1ve 6pm Ab€'8ook-s ACX Alexa A.rnazon Business. A.rnazonF resh .A.mazo~1G;obal Harre Sier,. ices .A.rnazon lnsp;re .A.mazon f~apKjs .A..rnazon r~estauran!s Amazon Video Direct Arna2on '/Veb Services Aud1~e Aud1obockStand Gook Depos1to~y Box ~)ff1c€' Mo;o ComXo!og, C reateSpacP DPRev1c:w [ast Dane Fatx1c 1:;oodrc>ads IMDb IMObPro ~·unglee corn K1nd:e D:red Pubi.sh;n9 Prime Now P~~me Photos Shop bop Ten Marks corn 'Narehouse Deals /'k11spercast 1 ~~i1.1noutaOOx 1l~'oot1 Zap;:os Souq com Subscribe ·Mth Amazon Corid1t1ons of Use Pr1vacv ~'Jot1ce lntere-st-Bdsei-J Ads https:/lwww.amazon.com/gplhclp/cuslomeddi•play.hunVrcfe bp_ rcl_topic?ic•UTF8&11ocleld~2011 66010(8121 /'201 7 12: 17:06 PM) AMZ-KANGAR0000000054

Exhibit E

Exhibit E Product detail pages and offers - Amazon Seller Central Page 1 of 5 Sign in Sell on Amazon English This article applies to selling in: United States Help / Manage Inventory / Use the Manage Inventory tools to update your listings / Product detail pages and offers Product detail pages and offers A product detail page is where a customer discovers a unique product sold on Amazon. It can include one or more offers from sellers or from Amazon. This page is a shared space that displays attributes that are common to all offers for the product, such as the following: • Title • Image • Bullet points • Description • Product variations (such as size or color), and customer reviews Some categories have additional product detail attributes. For example in Electronics, cameras have attributes such as optical zoom and max resolution that wouldn't be required for other product categories. You and other sellers can list an offer on a product detail page. You create and control your own offer for a product, including price, shipping options, condition, and other attributes. If a product doesn't exist on Amazon, you can create an offer for it and Amazon will create a new product detail page. Amazon chooses what information to include on the product detail page based on manufacturer and seller contributions. Get to know the product detail page Note: If you are a newly registered seller, it might take 90 minutes or more after registering before you are able to list products for sale on Amazon. https://sellercentral.amazon.com/gp/help/external/help-page.html?itemID=51&language=e... 7/11/2018 Product detail pages and offers - Amazon Seller Central Page 2 of 5 Tour the product detail page We'll show you the product detail page, how to list items, and even how to create product variations. From the Inventory drop-down menu select Add a Product and click the Show Tour link. See also • ASIN creation policy • Enhance your listings Use the product detail page to add an offer You can list an offer for a product directly from its product detail page on the Amazon website. 1. Search the Amazon website for a product you want to sell. 2. Click the Sell on Amazon button on the product detail page. 3. Add your offer details by entering your price, quantity, and condition. 4. Save your updates. Your offer will show up on Amazon and in your Seller Central inventory within 15 minutes. Use Seller Central to add a product offer Use the Inventory tools in Seller Central to search for a product that already has a product detail page and to add your offer. If you have a Professional selling plan, you can download an inventory template file that will help you upload a large number of product offers in bulk. From the Inventory drop-down menu, select Add Products via Upload to get started. If you have a small number of products to offer or if you do not have a Professional selling plan, you can use the method described below to add products one at a time. https://sellercentral.amazon.com/gp/help/external/help-page.html?itemID=51&language=e... 7/11/2018 Product detail pages and offers - Amazon Seller Central Page 3 of 5 1. From the Inventory drop-down menu, select Add a Product. 2. Search for the product you want to sell on Amazon. Results are more accurate if you search for a product identifier such as a UPC, EAN, JAN, or an ISBN. 3. Click the Sell yours button for the product you want to list. 4. Add your offer details, including price, quantity, condition, and shipping options. 5. Save your changes. Add products to the Amazon catalog If you can't find a product on Amazon, you can submit product information so Amazon can create a new product detail page. Detail pages are shared with other sellers, who can offer the same product. 1. From the Inventory drop-down menu, select Add a Product. 2. Click on Create a new product listing. 3. Search or browse for the category that matches the product you want to offer, and click the Select button. The more precise you are in choosing a category, the more you can help customers find your products easily. 4. Enter the vital product information and your offer details, and then save and finish your offer. Product detail pages and offers • Add one product at a time • Requirements & restrictions • Find your products on Amazon • Identify your products • Add descriptive details about your products https://sellercentral.amazon.com/gp/help/external/help-page.html?itemID=51&language=e... 7/11/2018 Product detail pages and offers - Amazon Seller Central Page 4 of 5 • List your inventory • Correct an Error on a Product Detail Page • Update your listing • Stop selling a product • Troubleshoot issues with product listings Was this article helpful? Yes No Related articles View your inventory Blocked listings Set your Manage Inventory page preferences Create a listing Copy a listing Add images to your listings Edit a listing Set minimum and maximum price limits Close a listing Manage pricing Delete a product Update the price of a product https://sellercentral.amazon.com/gp/help/external/help-page.html?itemID=51&language=e... 7/11/2018 Product detail pages and offers - Amazon Seller Central Page 5 of 5 Relist a closed listing Compare and Choose Listing Methods Build your inventory file Merge Duplicate Product Pages Split Different Products into Different Pages Change a Product's Category Product detail pages and offers Need more help? See more on Seller Central Visit Seller Forums Reach Hundreds of Millions of Customers Start Selling On Amazon © 1999-2018, Amazon.com, Inc. or its affiliates https://sellercentral.amazon.com/gp/help/external/help-page.html?itemID=51&language=e... 7/11/2018

Exhibit F

Exhibit F Correct an Error on a Product Detail Page - Amazon Seller Central Page 1 of 5 Sign in Sell on Amazon English We have consolidated our help content into one location on Seller Central. This article applies to selling in: United States Help / Manage Inventory / Use the Manage Inventory tools to update your listings / Product detail pages and offers / Correct an Error on a Product Detail Page Correct an Error on a Product Detail Page You, other sellers, and manufacturers can contribute product information on a product detail page. Amazon will automatically select the information. Your sales volume, refund rate, buyer feedback, and A-to-z Guarantee claims are taken into consideration when evaluating your contributions. When multiple sellers sell the same product through a single detail page, we combine the best product data from across various seller submissions to ensure customers get the best experience. The product detail page shows information selected by Amazon to represent the product. Buyers can also see a summary of the prices, conditions, and variations available from all sellers. If you see details on a product detail page that are not correct, you can submit a correction two ways: • Go to the Manage Inventory page and click the Edit button on the far right side of the page. • Upload an Inventory File Template that includes the corrected product info. Fix attributes on a product detail page To fix a product detail page using the Manage Inventory page, complete the following steps: https://sellercentral.amazon.com/gp/help/external/200335450?language=en-US&ref=mpbc... 7/11/2018 Correct an Error on a Product Detail Page - Amazon Seller Central Page 2 of 5 1. On the Manage Inventory page, click the Edit button next to the product you want to fix. This will open a new window with the Edit Product Info page. 2. Select the appropriate tab to change the following information: • Vital Info: Update the title and key product information • Images: Upload new images • Description: Update the description and bullet points. 3. Make your edits and then click Save and Finish. If your contributions are verified by Amazon they will show on the product detail page within 15 minutes. If after 6 hours your contributions do not show on the product detail page, Amazon's system has selected another contributor's information. Note: For images, you can also go to Amazon, locate the product, scroll down to Product Details, and then click the give feedback on images link. This method won't allow you to upload a new image. Fix incorrect product variations on a detail page Some product detail pages offer variations, such as color, pattern, and size. If you think a seller may have added a variation to a product that is different than the product detail page, we can fix it. Incorrect variations can lower customer confidence in whether they are buying the right product. Before requesting a correction, review the following errors and examples: Variation Description Example error Different The variation for the product is The product detail page for a toaster product completely different from the but the variation is for a pencil product detail page. Same The variation appears to be the The product detail page is for "Sony product, same product but is Stereo Headphones" but the variation is different manufactured under different for "Bose Stereo Headphones." brand brands. https://sellercentral.amazon.com/gp/help/external/200335450?language=en-US&ref=mpbc... 7/11/2018 Correct an Error on a Product Detail Page - Amazon Seller Central Page 3 of 5 Variation Description Example error Same brand, The brands match, but the The product detail page is for "UGG different products are different. Women's Classic Short Boot" but the product line variation is for "UGG Women's Slipper". Similar The variation is for a product The product detail page is for product types from a similar category but for a "Women's Leggings" but the variation is different product type. for "Women's Slacks." Version The variation is for a different The product detail page is for "Remote release version of the same Control X4 Helicopter and 4 Button product that is materially Remote" and the variation is for different from the previous "Remote Control X5 Helicopter and 5 version. Button Remote." If any of these scenarios exist, you can submit a request for us to fix it by following the steps outlined under Submit Corrected Attributes for Review below. Request a product detail page review If you think the information on a product page is not correct after following the steps to Fix attributes on a product detail page and 24 hours have passed, use the Contact us form to submit your update. 1. Select Products and inventory > Product page issue. 2. Under What kind of issue are you having? Select Fix a product page. The form will walk you through the steps you need to follow to provide the information you want to update. 3. When done, click the Send button. We will review your request and notify you of Amazon's decision regarding your update request. Fix a Brand Registry product detail page https://sellercentral.amazon.com/gp/help/external/200335450?language=en-US&ref=mpbc... 7/11/2018 Correct an Error on a Product Detail Page - Amazon Seller Central Page 4 of 5 If have registered your brand and have not been able to update information following the steps to update a product detail page and 24 hours have passed, follow these steps to troubleshoot the issue: 1. Verify that the product is registered under your brand. If your product has been registered under your brand, it will have a Global Catalog Identifier (GCID) on your Inventory Report. 2. Verify the accuracy of the information. If the information on the product detail page does not accurately reflect the product, follow the steps outlined in Request a product detail page review above. See also • Amazon Brand Registry • ASIN Creation Policy • Enhance Your Listings • Update an offer Was this article helpful? Yes No Related articles Add one product at a time Requirements & restrictions Find your products on Amazon Identify your products Add descriptive details about your products List your inventory https://sellercentral.amazon.com/gp/help/external/200335450?language=en-US&ref=mpbc... 7/11/2018 Correct an Error on a Product Detail Page - Amazon Seller Central Page 5 of 5 Correct an Error on a Product Detail Page Update your listing Stop selling a product Troubleshoot issues with product listings Need more help? See more on Seller Central Visit Seller Forums Reach Hundreds of Millions of Customers Start Selling On Amazon © 1999-2018, Amazon.com, Inc. or its affiliates https://sellercentral.amazon.com/gp/help/external/200335450?language=en-US&ref=mpbc... 7/11/2018

Exhibit G

Exhibit G Case Seller Become Buy Box eligible - Amazon 2:17-cv-01806-SPL Central Document 75-7 Filed 07/13/18 Page 2 of 4 amazon seller central If::nglish I [ Sign in Sell on Amazon This article applies to selling in: United States tlfilp I Manage Inventory I Manage your inventory I Product detail pages and offers I How the Buy Box Works I Become Buy Box eligible Become Buy Box eligible What is the Buy Box? The Buy Box is the display on a product detail page with the Add to Cart button that customers can use to add items to their shopping carts. When one of your listed items appears as the default on the product page, you "win" the Buy Box, increasing your chances of selling that item. Note: Becoming eligible to win the Buy Box doesn't guarantee that you will win it; that said, there are a few things you can do to increase your chances. To learn more, see Winning the Buy Box. How can I become eligible? If you're a Fulfillment by Amazon (FBA) seller, you're automatically eligible to win the Buy Box. If you're not, you must meet all of the conditions listed below. Amazon does not guarantee placement in the Buy Box. 1. Type of selling account: You must have a professional account. Here's how you can upgrade. 2. Metrics: Your Order Defect Rate, Cancellation Rate, and Late Shipment Rate are metrics that determine eligibility- the better you perform, the higher your chances are of becoming Buy Box eligible. You can see how you're doing on the Account Health page. 3. Order volume: So that Amazon can accurately assess your performance, we require that you have sufficient order volume (which varies among categories) . How do I check if my items are eligible? bttps://sellercentral.amazon.com/g1J/help/extemal/help.html?item.ID=200418 LOO&language=en_US&ref=efph_200418l OO_rclt_20 1687530[4/l l/2018 8:51:4 1 AM] AMZ-KANGAR0000002840 Case Seller Become Buy Box eligible - Amazon 2:17-cv-01806-SPL Central Document 75-7 Filed 07/13/18 Page 3 of 4 You can find out if any of your items are eligible for the Buy Box: 1. First, ensure seller eligibility (see above). 2. In Seller Central, go to your Manage Inventory page and then click Preferences. 3. Select Buy Box Eligible, and at the bottom of the page, click Save Changes. The Buy Box Eligible column will display the status for each of your ASI Ns. Was this article helpful? OYes 0 No Related articles Become Buy Box eligible Buy Box product placement Winning the Buy Box How the More Buying Choices box works Need more help? See more on Seller Central Visit Seller Forums Reach Hundreds of Millions of Customers Start Selling On Amazon bttps://sellercentral.amazon.com/g1J/help/extemal/help.html?itemID=200418 LOO&language=en_US&ref=efph_200418l OO_rclt_20 1687530[4/ 1l/2018 8:5 1:4 1 AM] AMZ-KANGAR0000002841 Case Seller Become Buy Box eligible - Amazon 2:17-cv-01806-SPL Central Document 75-7 Filed 07/13/18 Page 4 of 4 © 1999-2018, Amazon .com, Inc. or its affiliates https://scllercentral.runazon.com/gp/help/exlemal/help.html?itemID=200418 1OO&language=en_US&ref=efph_200418lOO_rell_20 1687530[4/l l/2018 8:51:41 AM] AMZ-KANGAR0000002842

Exhibit H

Exhibit H Buy Box product placement -Case Amazon2:17-cv-01806-SPL Seller Central Document 75-8 Filed 07/13/18 Page 2 of 3 amazon seller central I. . E~. _ n~g_lis_h_ __.I [ Sign in Sell on Amazon This article applies to selling in: United States tlfilp I Manage Inventory I Manage your inventory I Product detail pages and offers I How the Buy Box Works I Buy Box product placement Buy Box product placement When you list products on Amazon, all customers browsing the site can find and purchase them (as long as the items can be shipped to the customer's shipping address). Customers can add products to their shopping carts using one of three methods: • By using the Add to Cart button (in the Ready to Buy box, or the Buy Box) • By browsing seller offerings in the More Buying Choices box and then clicking the Add to Cart button next to the seller from which the customer wants to purchase the product. • By clicking the used & new link, browsing all offers for an item, and then clicking the Add to Cart button next to the seller from which the customer wants to purchase the product. Note: If there are no used listings, the link will only mention new. The Buy Box winner is selected from the pool of eligible sellers based on, among other things, price, availability, and the customer's shipping address. The winning "New" condition offer is presented as the first choice for buyers using the Add to Cart button on the product detail page. Buyers can also view the winning "Used" condition offer, if any, by selecting the Buy used radio button. In addition to the Buy Box winning offer, up to three additional Buy Box eligible offers will display in the More Buying Choices box on the product detail page. Any remaining seller offers (including offers that are not Buy Box eligible) are available to customers who click the new & used link (or new link) at the bottom of the More Buying Choices box. This takes buyers to the offer listing page. See also How the More Buying Choices Box Works bttps://sellercentral.amazon.com/g1J/help/extemal/help.html?itcm.ID=20 l 687530&1anguage=en_US&ref=efph_20 l687530_rclt_20 1687550[4/ 1l/2018 8:5 1: 19 AM] AMZ-KANGAR0000002843 Buy Box product placement -Case Amazon2:17-cv-01806-SPL Seller Central Document 75-8 Filed 07/13/18 Page 3 of 3 Was this article helpful? 0Yes 0 No Related articles Become Buy Box eligible Buy Box product placement Winning the Buy Box How the More Buying Choices box works Need more help? See more on Seller Central Visit Seller Forums Reach Hundreds of Millions of Customers Start Selling On Amazon © 1999-2018, Amazon.com, Inc. or its affiliates bttps://sellercentral.amazon.com/g1J/help/extemal/help.html?itcm.ID=20 l 687530&1anguage=en_US&ref=efph_20 l687530_rclt_20 1687550[4/ 1l/2018 8:51:19 AM] AMZ-KANGAR0000002844

STIPULATION to Dismiss Allegations / Claims by Kangaroo Manufacturing Incorporated.

1 CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Attorneys at Law 2 1400 E. Southern Ave., Suite 400 Tempe, Arizona 85282-5691 3 (480) 427-2800, Facsimile (480) 427-2801 minuteentries@carpenterhazlewood.com 4 Mark K. Sahl 025729 Timothy R. Grimm 019110 5 Edith I. Rudder 020650 KANGAROOM.0003 6 Attorneys for Plaintiff 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 KANGAROO MANUFACTURING, INC., Case 2:17-cv-01806-SPL a Florida corporation, 11 12 Plaintiff, STIPULATION TO DISMISS 13 v. ALLEGATIONS/CLAIMS 14 AMAZON.COM, INC., a Delaware 15 corporation, 16 Defendant. 17 18 Plaintiff Kangaroo Manufacturing, Inc. and Defendant Amazon.com, Inc. hereby 19 20 stipulate that the following allegations and/or claims set forth in Plaintiff's complaint are 21 hereby dismissed with prejudice: 22 1. Count IV 23 a. Paragraphs 91-96 "Improper Control of Sales Prices by Amazon"; 24 25 b. Paragraphs 97-100 "Improper Storage and Fulfillment Fees by 26 Amazon"; 1 2. Count V 1 2 a. Paragraph 103, subparagraph a "overcharging for storage and 3 fulfillment;" 4 b. Paragraph 103, subparagraph c "miss-assigning the UPC code and PDP 5 control and diverting sales from Plaintiff's authorized resellers while continuing to receive 6 7 fees on the unauthorized sales;" 8 c. Paragraph 103, subparagraph e "forcing Plaintiff's authorized sellers to 9 reduce prices to retain the buy box while continuing to charge prices for unauthorized 10 Amazon listings above the reduced price imposed by Amazon to retain the buy box." 11 12 3. Count VII 13 a. Paragraph 114, subparagraph a "blocking authorized sales;" 14 b. Paragraph 114, subparagraph e "forcing authorized sellers to reduce 15 their prices to retain the Buy Box." 16 17 A form of Order, stipulated to by the parties, is included herewith for the 18 convenience of the Court. 19 DATED: August 13, 2018. 20 CARPENTER HAZLEWOOD DAVIS WRIGHT TREMAINE LLP 21 DELGADO & BOLEN, LLP 22 By: /s/ Edith I. Rudder By: /s/ John A. Goldmark (with permission) 23 Edith I. Rudder John A. Goldmark 1400 E. Southern Ave., Ste. 400 1201 Third Ave., Ste. 2200 24 Tempe, AZ 85282 Seattle, WA 89101-3045 Attorneys for the Association Attorneys for Defendant 25 26 2 CERTIFICATE OF SERVICE 1 2 I hereby certify that on August 13, 2018, a true and correct copy of the foregoing 3 document was electronically filed with the Clerk of the United States District Court of the 4 District of Arizona by using the CM/ECF system, and that service will be accomplished by 5 the CM/ECF system to all counsel of record. 6 7 I further certify that I have mailed a true and correct copy of the foregoing document 8 by United States Mail, first-class postage prepaid, sealed, as well as by email, addressed to: 9 James Edward Geringer (james.geringer@klarquist.com) 10 Klarquist, Sparkman, L.L.P. 1 World Trade Ctr. 11 121 SW Salmon St., Ste. 1600 12 Portland, Oregon 97204 Attorneys for Defendant Amazon.com 13 14 John A. Goldmark (johngoldmark@dwt.com) Max B. Hensley (maxhensley@dwt.com) 15 Davis Wright Tremaine 1201 Third Ave., Ste. 2200 16 Seattle, WA 89101-3045 17 Attorneys for Defendant Amazon.com 18 19 20 21 22 23 24 25 26 3

Text of Proposed Order

1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE DISTRICT OF ARIZONA 7 8 KANGAROO MANUFACTURING, INC., Case 2:17-cv-01806-SPL a Florida corporation, 9 10 Plaintiff, ORDER GRANTING 11 v. STIPULATION TO DISMISS ALLEGATIONS/CLAIMS 12 AMAZON.COM, INC., a Delaware 13 corporation, 14 Defendant. 15 16 Pursuant to the Stipulation between Plaintiff Kangaroo Manufacturing, Inc. and 17 18 Defendant Amazon.com, Inc. and for good cause, 19 IT IS HEREBY ORDERED dismissing, with prejudice, the following allegations 20 and/or claims set forth in Plaintiff's complaint: 21 1. Count IV 22 23 a. Paragraphs 91-96 "Improper Control of Sales Prices by Amazon"; 24 b. Paragraphs 97-100 "Improper Storage and Fulfillment Fees by 25 Amazon"; 26 1 2. Count V 1 2 a. Paragraph 103, subparagraph a "overcharging for storage and 3 fulfillment;" 4 b. Paragraph 103, subparagraph c "miss-assigning the UPC code and PDP 5 control and diverting sales from Plaintiff's authorized resellers while continuing to receive 6 7 fees on the unauthorized sales;" 8 c. Paragraph 103, subparagraph e "forcing Plaintiff's authorized sellers to 9 reduce prices to retain the buy box while continuing to charge prices for unauthorized 10 Amazon listings above the reduced price imposed by Amazon to retain the buy box." 11 12 3. Count VII 13 a. Paragraph 114, subparagraph a "blocking authorized sales;" 14 b. Paragraph 114, subparagraph e "forcing authorized sellers to reduce 15 their prices to retain the Buy Box." 16 17 SIGNED AND DATED ABOVE. 18 19 20 21 22 23 24 25 26 2

Response to Motion for Partial Summary Judgment

5 CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Attorneys at Law 1400 E. Southern Ave ., Suite 400 Tempe, Arizona 85282 - 5691 (480) 427 - 2800, Facsimile (480) 427 - 2801 minuteentries @ carpenterhazlewood. com Mark K. Sahl 025729 Timothy R. Grimm 019110 Edith I. Rudder 020650 KANGAROOM. 0003 Attorneys for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Case 2: 17 - cv - 01806 - SPL | Kangaroo Manufacturing, Inc ., a Florida corporation, Plaintiff, PLAINTIFF'S OPPOSITION TO AMAZON. COM'S MOTION FOR PARTIAL SUMMARY JUDGMENT | Amazon. com, Inc ., a Delaware corporation, Defendant. Plaintiff Kangaroo Manufacturing, Inc. ("Kangaroo") hereby opposes Amazon's Motion for Partial Summary Judgment (the " Motion") . Kangaroo respectfully requests that this Court deny the Motion filed by Defendant Amazon. com, Inc. ("Amazon") . I. INTRODUCTION Plaintiff Kangaroo is a manufacturer of toy and novelty goods. Kangaroo sells its products to various brick and mortar stores such as Party City and TJ Maxx, as well as to | | various authorized sellers for resale on Amazon. Kangaroo was one of the first toy companies to create novelty emoji product lines, and has had great success with its emoji 5 | | beach balls and latex balloons. Kangaroo's emoji beach balls are currently the top selling beach ball on Amazon and have made the top 100 toy list. As a product innovator, Kangaroo takes great measures to protect its intellectual property. Kangaroo copyrights its product images and artistic designs, including the images and designs for emoji beach balls and balloons at issue in this action, to try to prevent unsafe and untested knockoffs from being sold as authentic Kangaroo products. Kangaroo also | monitors and routinely reports infringing images and products to Amazon through its various intellectual property infringement reporting systems. While Amazon publicly asserts that it is fighting counterfeits, its treatment of Kangaroo's intellectual property rights show just the opposite. Kangaroo reported infringement of its copyrighted emoji designs by sellers making counterfeits over and over again. In April 2016, Kangaroo reported that Amazon itself was selling counterfeit product, as confirmed by test purchases. Rather than take down unauthorized sellers, Amazon took down everyone - except itself. Kangaroo brought this action in response to the egregious mishandling of Kangaroo's intellectual property rights. II. STATEMENT OF FACTS Kangaroo incorporates its separated filed Statement of Controverted Facts ("SCF"), the Declaration of David Schnider and the exhibits thereto, and the Declaration of Timothy Grimm and the exhibits thereto. N 5 III. LEGAL STANDARDS Summary judgment is appropriate where the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. " Fed. R. Civ. P. 56 (a) . A party seeking summary judgment bears the burden of informing the court of the basis for its motion, and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477U.S. 317, 323 (1986) . In ruling on summary judgment, a court does not weigh evidence to determine the truth of the matter, but only determine [ s ] whether there is a genuine issue for trial. " Crane v. Conoco, Inc ., 41 F. 3d 547, 549 (9th Cir. 1994) (citing Federal Deposit Ins. Corp. v. O ' Melveny & Meyers, 969 F. 2d 744, 747 (9th Cir. 1992)) . The Court must draw all reasonable inferences in favor of the non - moving party. See O ' Melveny & Meyers, 969 F. 2d at 747, rev ' d on other grounds, 512U.S. 79 (1994) . Where the moving party will have the burden of proof at trial, it must affirmatively demonstrate in its motion that no reasonable trier of fact could find for the non - moving party. Celotex, 477U.S. at 323. " [ T ] rial courts should act. . . with caution in granting summary judgment " and may " deny summary judgment in a case where there is reason to believe that the better course would be to proceed to a full trial. " Anderson v. Liberty Lobby, Inc ., 477U.S. 242, 255 (1986) . لیا 5 IV. SUMMARY JUDGMENT IS NOT APPROPRIATE ON KANGAROO'S FEDERAL CLAIMS a. Evidence Supports that Amazon Distributed Copyrighted Works and Failed to Take Plaintiff's Images Down For Unauthorized Listings Despite Numerous Demands, Thus Subjecting Amazon to Claims for Willful Copyright Violations Amazon argues that it is not liable for copyright infringement for its display of 7 | | Kangaroo's copyrighted images because it did not actually copy the images, but only displayed images other sellers uploaded. Motion at 5 - 6. Amazon relies on the court's finding in Milo & Gabby in support of its argument that it was a passive third party who did nothing with respect to the photos. Amazon's reliance on Milo & Gabby is misplaced for two reasons. First, unlike in Milo & Gabby, there is evidence here that Amazon " actively reviewed, edited, altered or copied Plaintiffs images. " Motion at 5, SCF, 11 28, 29. Kangaroo reported the improper use of Kangaroo images through Amazon's copyright infringement reporting system. Id. Amazon reviewed the reported infringement, and in this case failed to resolve the complaints for over two months, not until Kangaroo brought suit against Amazon. SCF, 1 29. A jury could find liability for Amazon on these facts. Second, even if it were to avoid liability for infringement of Kangaroo's images, Amazon is subject to copyright infringement for its own direct sales of counterfeit product. Distribution of counterfeit copyrighted products subjects the distributor to liability for copyright infringement. 17U.S. C. § 501; Microsoft Corp. v. Black Cat Computer Wholesale, Inc ., 269 F. Supp. 2d 118, 123 (W. D. N. Y. 2002) . In Black Cat, the Court found 4 5 willful infringement based on Black Cat's " willful blindness regarding the counterfeit nature of the infringing products as Defendants were aware of authorized distributors but did not | | utilize them, ignored facts suggesting that their suppliers ' software was not genuine, and continued to obtain and distribute counterfeit software after being specifically requested by | | Plaintiff to cease and desist therefrom. " Id. Like in Black Cat, Amazon was aware of Kangaroo and its copyright in the various products, based on the numerous copyright infringement reports by Kangaroo. SCF, 1928, 29. Kangaroo reported the counterfeit sales on numerous occasions and informed Amazon that the company itself was distributing product utilizing Kangaroo's marks and artwork. Id. Kangaroo explicitly stated that it had purchased goods and found they were counterfeit. Id .; see also Schnider Decl ., 11 4 - 7. Amazon knew that it did not purchase goods from Kangaroo directly. SCF, 1 30. Despite the reports, Amazon continued to directly sell counterfeit products – and went so far as to remove all sellers other than Amazon itself, the seller that was distributing counterfeit product. Id ., 1 29. Therefore, at a minimum, the copyright infringement claims for Amazon's distribution of copyrighted material should proceed. Amazon cites authority for the notion that a " defendant does not willfully infringe if the " infringing works were produced under color of title, such as under a reasonable belief | | that the infringer possesses a license or implied license. " Motion at 7 (citing Evergreen | | Safety Council v. RSA Network, Inc ., 697 F. 3d. 1221, 1228 (9th Cir. 2012)) . Amazon claims that it responded and removed complained of material " where appropriate " . Motion 5 5 at 8. Amazon ignores the substantial evidence that it took weeks and countless requests to remove unauthorized sellers, and that Amazon took action against sellers identified as authorized while Amazon itself continued selling counterfeit goods. SCF, 1928, 29. These facts could support a jury finding of willfulness based on Amazon's actions and inactions. See, e. g ., Black Cat, 269 F. Supp. 2d at 123. b. The DCMA Does Not Protect Amazon From Liability Because Amazon Was Informed of Infringement and Failed to Remove Content The DMCA safe harbors " do not render a service provider immune from copyright | | infringement. They do, however, protect eligible service providers from all monetary and most equitable relief that may arise from copyright liability. Thus, even if a plaintiff can show that a safe harbor - eligible service provider has violated her copyright, the plaintiff will 3 4 | only be entitled to the limited injunctive relief set forth in 17U.S. C. $ 512 (j) . " Corbis Corp. | | V. Amazon. com, Inc ., 351 F. Supp. 2d 1090, 1098 (W. D. Wash. 2004), overruled on other 5 ZaZ011. CO 3 grounds, Cosmetic Ideas, Inc. v. IAC / Interactivecorp ., 606 F. 3d 612 (9th Cir. 2010) . Amazon asserts that it is entitled to protection as a service provider under 17U.S. C. S 8 | 512 (j) . To qualify for the Š 512 (c) safe harbor, a service provider must show that: (1) it has neither actual knowledge that its system contains infringing materials nor an awareness of facts or circumstances from which infringement is apparent, or it has expeditiously removed or disabled access to infringing material upon obtaining actual knowledge of infringement; 5 (2) it receives no financial benefit directly attributable to infringing activity where the service provider has the right and ability to control activity; and (3) it responded expeditiously to remove or disable access to material claimed to be infringing after receiving from the copyright holder a notification conforming with requirements of $ 512 (c) (3) . 17U.S. C. § 512 (c) (1) . Because the DMCA safe harbor is an affirmative defense, Amazon has the burden of establishing that it meets the statutory requirements. See, Balvage v. Ryderwood Improvement and Serv. Ass ' n, Inc ., 642 F. 3d 765, 776 (9th Cir. 2011) . Amazon asserts that it is entitled to protection under the safe harbor because no evidence supports that Amazon knew of the alleged infringement before this action was filed and that it acted expeditiously once it was notified. Motion at 6 - 7. Amazon ignores that Kangaroo submitted countless notifications to Amazon informing it that other vendors were using Kangaroo's copyrighted photographs and selling counterfeit merchandise that infringed on Kangaroo's copyrights and trademarks. SCF, 11 28, 29. For months Kangaroo | | exchanged correspondence with Amazon to remove unauthorized sellers (including Amazon itself) who were selling counterfeit goods, in violation of Kangaroo's intellectual property | | rights. Id. Evidence supports a finding that Amazon knew of the infringement, but did nothing to actually correct it until after this suit was filed. Amazon also cites to Milo & Gabby for the notion that it does not have the " ability to | | control " the infringing activity. Motion at 7. Amazon's reliance on Milo & Gabby is misplaced. Milo & Gabby dealt with sales of counterfeit goods, and use of copyrighted 5 images, where the Court found Amazon acted expeditiously to remove infringing material. - am t Milo & Gabby, at * 8. Here, there is evidence that Kangaroo raised issues of improper use of copyrighted materials many times, and over a substantial period of time, and Amazon did not take any action to remove infringing material. SCF, 19 28, 29. In sum, Amazon is asking the Court to uphold the notion that it is entitled to DCMA protection if it removes infringing material after it is sued, even where the copyright holder orco a 9 = has reported infringement numerous times over a lengthy period. Amazon cannot carry its burden of showing it is entitled to protection under the DMCA as a matter of law in the face of this evidence. c. The BSA Does Not Give Amazon Unlimited License to Display and Sell Copyrighted Material Amazon claims that Kangaroo's copyright claims fail because all copyrighted materials on display on Amazon's website were under license. Motion at 7. Amazon o attempts to impute the approval of the Business Service Agreement ("BSA") by Yagoozon, an entity under common control, as being effective for all purposes against Kangaroo. This o argument must fail because unauthorized display necessarily is outside the scope of Yagoozon's license. â ã Amazon correctly notes that it cannot have infringed for behavior authorized by a ã license. Motion at 7 (citing MDY Indus ., LLC v. Blizzard Entm ' t, Inc ., 629 F. 3d 928, 939 ã (9th Cir. 2010), as amended on denial of reh ' g (Feb. 17, 2011)) . MDY Industries notes " [ a ] copyright owner who grants a nonexclusive, limited license ordinarily waives the right to 5 | sue licensees for copyright infringement, and it may sue only for breach of contract. " Id. =) Amazon ignores that MDY Industries continues: " [ h ] owever, if the licensee acts outside the b scope of the license, the licensor may sue for copyright infringement. Id. (citing S. O. S ., Inc. + v. Payday, Inc ., 886 F. 2d 1081, 1087 (9th Cir. 1989)) . " Id. To recover for copyright b infringement based on breach of a license agreement, (1) the copying must exceed the scope a s of the defendant's license and (2) the copyright owner's complaint must be grounded in an o o exclusive right of copyright (e. g ., unlawful reproduction or distribution) . See Storage Tech. Corp. V. Custom Hardware Eng ' g & Consulting, Inc ., 421 F. 3d 1307, 1315 - 16 5 (Fed Cir. 2005) . = 5 As an initial matter, Kangaroo is not a party to the BSA. Kangaroo grants all of its 5 authorized sellers a license to use Kangaroo's product images for sale of Kangaroo product. 5 Kangaroo sellers do not have a license to use Kangaroo images for the sale of non - Kangaroo 0 product. The license granted by Yagoozon to Amazon to use Kangaroo images cannot have 5 3 exceeded the scope of Yagoozon's license. Moreover, Amazon cannot claim that its license 8 under the BSA gives it the right to distribute actual product that is protected by copyright 6 registrations. Nothing in the BSA language cited by Amazon purports to license the product 8 itself for distribution. As noted supra at 5, the artwork on the emoji beach balls themselves 9 8 is protected by copyright registrations, Amazon had notice of violations of these | | registrations, and did not cease selling counterfeit materials. SCF, 99 28 - 30. None of these 3 8 actions is protected by the BSA. 5 3 5 V. EVIDENCE SUPPORTS KANGAROO'S STATE CLAIMS a. Amazon Is Liable For Negligence For Its Failure to Stop Selling Counterfeit Goods Amazon claims that it is not liable for negligence because it does not owe Kangaroo any duty of care. To the extent Kangaroo is bound by Yagoozon's permissive license to Amazon allowing use of Kangaroo images, so too should Amazon be bound by contractual duties under the BSA, which would include the duty to exercise due care for product display pages. Duty in Arizona is based on either recognized common law special relationships or am nor a am fosc 9 ô ô ô relationships created by public policy. Quiroz v. ALCOA Inc ., 243 Ariz. 560, 416 P. 3d 824, 829 (2018) . Duties based on special relationships may arise from several sources, including special relationships recognized by the common law, contracts, or " conduct undertaken by the defendant. " Id. (citing Gipson v. Kasey, 214 Ariz. 141, 145 19 18 - 19; Restatement (Second) of Torts $ $ 314A, 316 - 19 ("Second Restatement) (discussing duties based on common law special relationships); Second Restatement $ 323 (discussing duty based on a negligent undertaking); see also Diaz v. Phx. Lubrication Serv ., Inc ., 224 Ariz. 335, 339 - 40 1915 – 19, 230 P. 3d 718, 722 – 23 (App. 2010) (discussing duty arising from a contract) . Here, Amazon claims that it does not owe any duty to Kangaroo. However, Amazon's BSA sets forth a variety of contractual obligations, including the obligation by ô sellers to list and sell goods matching the product display page. Kangaroo, as the owner of ô 10 5 its images, was a third party beneficiary of the BSA. Amazon itself violated its policies = c with respect to listing and selling product that matches the corresponding product display º page by selling goods that Kangaroo reported as counterfeit. SCF, 1 28. s Amazon argues that it is not liable for third - party sales and content under Kangaroo's | negligence claim, however, Kangaroo's negligence claim seeks to hold Amazon liable for OO ° its own sales, not those of third parties. C ~ b. Amazon's Conduct Constitutes Unfair Competition Under the Lanham Act ~ Amazon argues that the Court should dismiss Plaintiff's unfair competition claim to = the extent it is co - extensive with the Lanham Act claim. As set forth above, Amazon's d attempts to dismiss Plaintiff's Lanham Act claims against third parties should fail. See d Section IV. = = Amazon further argues that the Court should dismiss Plaintiff's unfair competition = claim because the Copyright Act preempts any such state law claim for " rights equivalent to = those protected by the federal copyright laws " . Motion at 14. While the conduct leading to = liability is the same, recovery under the Lanham Act and Copyright Act for distribution of = = counterfeit products are unique. Just because Amazon has chosen to simultaneously violate | | both the Copyright Act and the Lanham Act does not allow it to avoid liability for both. Amazon's argument should be disregarded to the extent that it asserts no recovery is 7 permissible. 8 7 8 11 5 c. Material Issues of Fact Exist for Kangaroo's Tortious Interference Claims Amazon incorrectly claims that the only basis for Kangaroo's tortious interference claim is that Amazon mismanaged the Buy Box Motion at 14. Kangaroo's complaint clearly sets forth a number of grounds for tortious interference, including: " altering the UPC codes and PDP control to enable sales of unauthorized products " (Dkt. 1, Complaint, I 114 (b)); " fulfilling purchase orders intended for Plaintiff's authorized resellers through FBA 10 | | with product from competitors or counterfeiters " (Id, q 114 (c)); and " actually selling counterfeit product " (Id ., 1 114 (d)) . Amazon does not attack the remaining tortious interference claims in its Motion, therefore the tortious interference claims detailed above should be allowed to proceed. d. Kangaroo's Punitive Damages Request Is Supported by Ample Evidence " Punitive damages require a demonstration that the defendant had an " evil mind and | demonstrated aggravated and outrageous conduct. " " Herbal Care Systems, Inc. v. | Plaza, 2009 WL 692338, at * 5 (D. Ariz. 2009) . " In determining whether a defendant acted | | with an evil mind, courts look, in part, at " the nature of the defendant's conduct, including the reprehensibility of the conduct and the severity of the harm likely to result, as well as the harm that has occurred [, ] . . . [ t ] he duration of the misconduct, the degree of defendant's ! During pre - motion meet and confers, Plaintiff agreed to withdraw the claims set forth in paragraphs 114 (a) and (e), which set forth claims based on blocking authorized sales and forcing authorized sellers to lower prices to retain the Buy Box. The parties are preparing a stipulation to this effect. 12 5 awareness of the harm or risk of harm, and any concealment of it. " Thompson v. Better - Bilt | | Aluminum Products Co ., Inc ., 171 Ariz. 550, 556, 832 P. 2d 203 (1992) . Courts have allowed punitive damages claims to proceed where evidence supported that a defendant misappropriating a trademark " were aware of customer confusion but did nothing to remedy it. " Tiffany & Co. v. Costco Wholesale Corp ., 127 F. Supp. 3d 241, 262 (S. D. N. Y. 2015) (Denying motion for summary judgment on punitive damages request for trademark misappropriation claims under the Lanham Act and common law state unfair competition for Costco's use of " Tiffany " to describe diamond rings sold by Costco) (applying New York law) . Similarly, here, Kangaroo has presented evidence that Amazon I was made aware of its own counterfeit sales on multiple occasions in April and May 2017, but Amazon did not cease sales of these counterfeit items. SCF, 1 28. Specifically, Kangaroo raised merging of product listings and counterfeit sales, but the Amazon retail arm was permitted to override Kangaroo's intellectual property reports in the face of specific evidence that the merged products had different UPCs and manufacturers. Schnider Decl ., 17 (Exh. W) . A jury could find punitive damages are warranted under these facts. VI. CONCLUSION For all the foregoing reasons, Amazon's Motion for Summary Judgment should be denied. 13 5 DATED: August 13, 2018. CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP By: Litle Iefrer Timothy R. Grimm / Édith I. Rudder 1400 East Southern Avenue, Suite 400 Tempe, Arizona 85282 Attorneys for Plaintiff 14 5 CERTIFICATE OF SERVICE I hereby certify that on August 13, 2018, a true and correct copy of the foregoing document was electronically filed with the Clerk of the United States District Court of the District of Arizona by using the CM / ECF system, and that service will be accomplished by the CM / ECF system to all counsel of record. I further certify that I have mailed a true and correct copy of the foregoing document by United States Mail, first - class postage prepaid, sealed, as well as by email, addressed to: James Edward Geringer (james. geringer @ klarquist. com) Klarquist, Sparkman, L. L. P. 1 World Trade Ctr. 121 SW Salmon St ., Ste. 1600 Portland, Oregon 97204 Attorneys for Defendant Amazon. com John A. Goldmark (johngoldmark @ dwt. com) Max B. Hensley (maxhensley @ dwt. com) Davis Wright Tremaine 1201 Third Ave ., Ste. 2200 Seattle, WA 89101 - 3045 Attorneys for Defendant Amazon. com teclucetach Vicki Goslin 15

Response

5 CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Attorneys at Law 1400 E. Southern Ave ., Suite 400 Tempe, Arizona 85282 - 5691 (480) 427 - 2800, Facsimile (480) 427 - 2801 minuteentries @ carpenterhazlewood. com Mark K. Sahl 025729 Timothy R. Grimm 019110 Edith I. Rudder 020650 KANGAROOM. 0003 Attorneys for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Case 2: 17 - cv - 01806 - SPL | Kangaroo Manufacturing, Inc ., a Florida corporation, Plaintiff, PLAINTIFF'S OPPOSITION TO AMAZON. COM'S MOTION FOR PARTIAL SUMMARY JUDGMENT | Amazon. com, Inc ., a Delaware corporation, Defendant. Plaintiff Kangaroo Manufacturing, Inc. ("Kangaroo") hereby opposes Amazon's Motion for Partial Summary Judgment (the " Motion") . Kangaroo respectfully requests that this Court deny the Motion filed by Defendant Amazon. com, Inc. ("Amazon") . I. INTRODUCTION Plaintiff Kangaroo is a manufacturer of toy and novelty goods. Kangaroo sells its products to various brick and mortar stores such as Party City and TJ Maxx, as well as to | | various authorized sellers for resale on Amazon. Kangaroo was one of the first toy companies to create novelty emoji product lines, and has had great success with its emoji 5 | | beach balls and latex balloons. Kangaroo's emoji beach balls are currently the top selling beach ball on Amazon and have made the top 100 toy list. As a product innovator, Kangaroo takes great measures to protect its intellectual property. Kangaroo copyrights its product images and artistic designs, including the images and designs for emoji beach balls and balloons at issue in this action, to try to prevent unsafe and untested knockoffs from being sold as authentic Kangaroo products. Kangaroo also | monitors and routinely reports infringing images and products to Amazon through its various intellectual property infringement reporting systems. While Amazon publicly asserts that it is fighting counterfeits, its treatment of Kangaroo's intellectual property rights show just the opposite. Kangaroo reported infringement of its copyrighted emoji designs by sellers making counterfeits over and over again. In April 2016, Kangaroo reported that Amazon itself was selling counterfeit product, as confirmed by test purchases. Rather than take down unauthorized sellers, Amazon took down everyone - except itself. Kangaroo brought this action in response to the egregious mishandling of Kangaroo's intellectual property rights. II. STATEMENT OF FACTS Kangaroo incorporates its separated filed Statement of Controverted Facts ("SCF"), the Declaration of David Schnider and the exhibits thereto, and the Declaration of Timothy Grimm and the exhibits thereto. N 5 III. LEGAL STANDARDS Summary judgment is appropriate where the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. " Fed. R. Civ. P. 56 (a) . A party seeking summary judgment bears the burden of informing the court of the basis for its motion, and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477U.S. 317, 323 (1986) . In ruling on summary judgment, a court does not weigh evidence to determine the truth of the matter, but only determine [ s ] whether there is a genuine issue for trial. " Crane v. Conoco, Inc ., 41 F. 3d 547, 549 (9th Cir. 1994) (citing Federal Deposit Ins. Corp. v. O ' Melveny & Meyers, 969 F. 2d 744, 747 (9th Cir. 1992)) . The Court must draw all reasonable inferences in favor of the non - moving party. See O ' Melveny & Meyers, 969 F. 2d at 747, rev ' d on other grounds, 512U.S. 79 (1994) . Where the moving party will have the burden of proof at trial, it must affirmatively demonstrate in its motion that no reasonable trier of fact could find for the non - moving party. Celotex, 477U.S. at 323. " [ T ] rial courts should act. . . with caution in granting summary judgment " and may " deny summary judgment in a case where there is reason to believe that the better course would be to proceed to a full trial. " Anderson v. Liberty Lobby, Inc ., 477U.S. 242, 255 (1986) . لیا 5 IV. SUMMARY JUDGMENT IS NOT APPROPRIATE ON KANGAROO'S FEDERAL CLAIMS a. Evidence Supports that Amazon Distributed Copyrighted Works and Failed to Take Plaintiff's Images Down For Unauthorized Listings Despite Numerous Demands, Thus Subjecting Amazon to Claims for Willful Copyright Violations Amazon argues that it is not liable for copyright infringement for its display of 7 | | Kangaroo's copyrighted images because it did not actually copy the images, but only displayed images other sellers uploaded. Motion at 5 - 6. Amazon relies on the court's finding in Milo & Gabby in support of its argument that it was a passive third party who did nothing with respect to the photos. Amazon's reliance on Milo & Gabby is misplaced for two reasons. First, unlike in Milo & Gabby, there is evidence here that Amazon " actively reviewed, edited, altered or copied Plaintiffs images. " Motion at 5, SCF, 11 28, 29. Kangaroo reported the improper use of Kangaroo images through Amazon's copyright infringement reporting system. Id. Amazon reviewed the reported infringement, and in this case failed to resolve the complaints for over two months, not until Kangaroo brought suit against Amazon. SCF, 1 29. A jury could find liability for Amazon on these facts. Second, even if it were to avoid liability for infringement of Kangaroo's images, Amazon is subject to copyright infringement for its own direct sales of counterfeit product. Distribution of counterfeit copyrighted products subjects the distributor to liability for copyright infringement. 17U.S. C. § 501; Microsoft Corp. v. Black Cat Computer Wholesale, Inc ., 269 F. Supp. 2d 118, 123 (W. D. N. Y. 2002) . In Black Cat, the Court found 4 5 willful infringement based on Black Cat's " willful blindness regarding the counterfeit nature of the infringing products as Defendants were aware of authorized distributors but did not | | utilize them, ignored facts suggesting that their suppliers ' software was not genuine, and continued to obtain and distribute counterfeit software after being specifically requested by | | Plaintiff to cease and desist therefrom. " Id. Like in Black Cat, Amazon was aware of Kangaroo and its copyright in the various products, based on the numerous copyright infringement reports by Kangaroo. SCF, 1928, 29. Kangaroo reported the counterfeit sales on numerous occasions and informed Amazon that the company itself was distributing product utilizing Kangaroo's marks and artwork. Id. Kangaroo explicitly stated that it had purchased goods and found they were counterfeit. Id .; see also Schnider Decl ., 11 4 - 7. Amazon knew that it did not purchase goods from Kangaroo directly. SCF, 1 30. Despite the reports, Amazon continued to directly sell counterfeit products – and went so far as to remove all sellers other than Amazon itself, the seller that was distributing counterfeit product. Id ., 1 29. Therefore, at a minimum, the copyright infringement claims for Amazon's distribution of copyrighted material should proceed. Amazon cites authority for the notion that a " defendant does not willfully infringe if the " infringing works were produced under color of title, such as under a reasonable belief | | that the infringer possesses a license or implied license. " Motion at 7 (citing Evergreen | | Safety Council v. RSA Network, Inc ., 697 F. 3d. 1221, 1228 (9th Cir. 2012)) . Amazon claims that it responded and removed complained of material " where appropriate " . Motion 5 5 at 8. Amazon ignores the substantial evidence that it took weeks and countless requests to remove unauthorized sellers, and that Amazon took action against sellers identified as authorized while Amazon itself continued selling counterfeit goods. SCF, 1928, 29. These facts could support a jury finding of willfulness based on Amazon's actions and inactions. See, e. g ., Black Cat, 269 F. Supp. 2d at 123. b. The DCMA Does Not Protect Amazon From Liability Because Amazon Was Informed of Infringement and Failed to Remove Content The DMCA safe harbors " do not render a service provider immune from copyright | | infringement. They do, however, protect eligible service providers from all monetary and most equitable relief that may arise from copyright liability. Thus, even if a plaintiff can show that a safe harbor - eligible service provider has violated her copyright, the plaintiff will | only be entitled to the limited injunctive relief set forth in 17U.S. C. $ 512 (j) . " Corbis Corp. | | V. Amazon. com, Inc ., 351 F. Supp. 2d 1090, 1098 (W. D. Wash. 2004), overruled on other ZaZ011. CO grounds, Cosmetic Ideas, Inc. v. IAC / Interactivecorp ., 606 F. 3d 612 (9th Cir. 2010) . Amazon asserts that it is entitled to protection as a service provider under 17U.S. C. S | 512 (j) . To qualify for the Š 512 (c) safe harbor, a service provider must show that: (1) it has neither actual knowledge that its system contains infringing materials nor an awareness of facts or circumstances from which infringement is apparent, or it has expeditiously removed or disabled access to infringing material upon obtaining actual knowledge of infringement; 5 (2) it receives no financial benefit directly attributable to infringing activity where the service provider has the right and ability to control activity; and (3) it responded expeditiously to remove or disable access to material claimed to be infringing after receiving from the copyright holder a notification conforming with requirements of $ 512 (c) (3) . 17U.S. C. § 512 (c) (1) . Because the DMCA safe harbor is an affirmative defense, Amazon has the burden of establishing that it meets the statutory requirements. See, Balvage v. Ryderwood Improvement and Serv. Ass ' n, Inc ., 642 F. 3d 765, 776 (9th Cir. 2011) . Amazon asserts that it is entitled to protection under the safe harbor because no evidence supports that Amazon knew of the alleged infringement before this action was filed and that it acted expeditiously once it was notified. Motion at 6 - 7. Amazon ignores that Kangaroo submitted countless notifications to Amazon informing it that other vendors were using Kangaroo's copyrighted photographs and selling counterfeit merchandise that infringed on Kangaroo's copyrights and trademarks. SCF, 11 28, 29. For months Kangaroo | | exchanged correspondence with Amazon to remove unauthorized sellers (including Amazon itself) who were selling counterfeit goods, in violation of Kangaroo's intellectual property | | rights. Id. Evidence supports a finding that Amazon knew of the infringement, but did nothing to actually correct it until after this suit was filed. Amazon also cites to Milo & Gabby for the notion that it does not have the " ability to | | control " the infringing activity. Motion at 7. Amazon's reliance on Milo & Gabby is misplaced. Milo & Gabby dealt with sales of counterfeit goods, and use of copyrighted 5 images, where the Court found Amazon acted expeditiously to remove infringing material. - am t Milo & Gabby, at * 8. Here, there is evidence that Kangaroo raised issues of improper use of copyrighted materials many times, and over a substantial period of time, and Amazon did not take any action to remove infringing material. SCF, 19 28, 29. In sum, Amazon is asking the Court to uphold the notion that it is entitled to DCMA protection if it removes infringing material after it is sued, even where the copyright holder orco a 9 = has reported infringement numerous times over a lengthy period. Amazon cannot carry its burden of showing it is entitled to protection under the DMCA as a matter of law in the face of this evidence. c. The BSA Does Not Give Amazon Unlimited License to Display and Sell Copyrighted Material Amazon claims that Kangaroo's copyright claims fail because all copyrighted materials on display on Amazon's website were under license. Motion at 7. Amazon o attempts to impute the approval of the Business Service Agreement ("BSA") by Yagoozon, an entity under common control, as being effective for all purposes against Kangaroo. This o argument must fail because unauthorized display necessarily is outside the scope of Yagoozon's license. â ã Amazon correctly notes that it cannot have infringed for behavior authorized by a ã license. Motion at 7 (citing MDY Indus ., LLC v. Blizzard Entm ' t, Inc ., 629 F. 3d 928, 939 ã (9th Cir. 2010), as amended on denial of reh ' g (Feb. 17, 2011)) . MDY Industries notes " [ a ] copyright owner who grants a nonexclusive, limited license ordinarily waives the right to 5 | sue licensees for copyright infringement, and it may sue only for breach of contract. " Id. =) Amazon ignores that MDY Industries continues: " [ h ] owever, if the licensee acts outside the b scope of the license, the licensor may sue for copyright infringement. Id. (citing S. O. S ., Inc. + v. Payday, Inc ., 886 F. 2d 1081, 1087 (9th Cir. 1989)) . " Id. To recover for copyright b infringement based on breach of a license agreement, (1) the copying must exceed the scope a s of the defendant's license and (2) the copyright owner's complaint must be grounded in an o o exclusive right of copyright (e. g ., unlawful reproduction or distribution) . See Storage Tech. Corp. V. Custom Hardware Eng ' g & Consulting, Inc ., 421 F. 3d 1307, 1315 - 16 5 (Fed Cir. 2005) . = 5 As an initial matter, Kangaroo is not a party to the BSA. Kangaroo grants all of its 5 authorized sellers a license to use Kangaroo's product images for sale of Kangaroo product. 5 Kangaroo sellers do not have a license to use Kangaroo images for the sale of non - Kangaroo 0 product. The license granted by Yagoozon to Amazon to use Kangaroo images cannot have 5 3 exceeded the scope of Yagoozon's license. Moreover, Amazon cannot claim that its license 8 under the BSA gives it the right to distribute actual product that is protected by copyright 6 registrations. Nothing in the BSA language cited by Amazon purports to license the product 8 itself for distribution. As noted supra at 5, the artwork on the emoji beach balls themselves 9 8 is protected by copyright registrations, Amazon had notice of violations of these | | registrations, and did not cease selling counterfeit materials. SCF, 99 28 - 30. None of these 3 8 actions is protected by the BSA. 5 3 5 V. EVIDENCE SUPPORTS KANGAROO'S STATE CLAIMS a. Amazon Is Liable For Negligence For Its Failure to Stop Selling Counterfeit Goods Amazon claims that it is not liable for negligence because it does not owe Kangaroo any duty of care. To the extent Kangaroo is bound by Yagoozon's permissive license to Amazon allowing use of Kangaroo images, so too should Amazon be bound by contractual duties under the BSA, which would include the duty to exercise due care for product display pages. Duty in Arizona is based on either recognized common law special relationships or am nor a am fosc 9 ô ô ô relationships created by public policy. Quiroz v. ALCOA Inc ., 243 Ariz. 560, 416 P. 3d 824, 829 (2018) . Duties based on special relationships may arise from several sources, including special relationships recognized by the common law, contracts, or " conduct undertaken by the defendant. " Id. (citing Gipson v. Kasey, 214 Ariz. 141, 145 19 18 - 19; Restatement (Second) of Torts $ $ 314A, 316 - 19 ("Second Restatement) (discussing duties based on common law special relationships); Second Restatement $ 323 (discussing duty based on a negligent undertaking); see also Diaz v. Phx. Lubrication Serv ., Inc ., 224 Ariz. 335, 339 - 40 1915 – 19, 230 P. 3d 718, 722 – 23 (App. 2010) (discussing duty arising from a contract) . Here, Amazon claims that it does not owe any duty to Kangaroo. However, Amazon's BSA sets forth a variety of contractual obligations, including the obligation by ô sellers to list and sell goods matching the product display page. Kangaroo, as the owner of ô 10 5 its images, was a third party beneficiary of the BSA. Amazon itself violated its policies = c with respect to listing and selling product that matches the corresponding product display º page by selling goods that Kangaroo reported as counterfeit. SCF, 1 28. s Amazon argues that it is not liable for third - party sales and content under Kangaroo's | negligence claim, however, Kangaroo's negligence claim seeks to hold Amazon liable for OO ° its own sales, not those of third parties. C ~ b. Amazon's Conduct Constitutes Unfair Competition Under the Lanham Act ~ Amazon argues that the Court should dismiss Plaintiff's unfair competition claim to = the extent it is co - extensive with the Lanham Act claim. As set forth above, Amazon's d attempts to dismiss Plaintiff's Lanham Act claims against third parties should fail. See d Section IV. = = Amazon further argues that the Court should dismiss Plaintiff's unfair competition = claim because the Copyright Act preempts any such state law claim for " rights equivalent to = those protected by the federal copyright laws " . Motion at 14. While the conduct leading to = liability is the same, recovery under the Lanham Act and Copyright Act for distribution of = = counterfeit products are unique. Just because Amazon has chosen to simultaneously violate | | both the Copyright Act and the Lanham Act does not allow it to avoid liability for both. Amazon's argument should be disregarded to the extent that it asserts no recovery is 7 permissible. 8 7 8 11 5 c. Material Issues of Fact Exist for Kangaroo's Tortious Interference Claims Amazon incorrectly claims that the only basis for Kangaroo's tortious interference claim is that Amazon mismanaged the Buy Box Motion at 14. Kangaroo's complaint clearly sets forth a number of grounds for tortious interference, including: " altering the UPC codes and PDP control to enable sales of unauthorized products " (Dkt. 1, Complaint, I 114 (b)); " fulfilling purchase orders intended for Plaintiff's authorized resellers through FBA 10 | | with product from competitors or counterfeiters " (Id, q 114 (c)); and " actually selling counterfeit product " (Id ., 1 114 (d)) . Amazon does not attack the remaining tortious interference claims in its Motion, therefore the tortious interference claims detailed above should be allowed to proceed. d. Kangaroo's Punitive Damages Request Is Supported by Ample Evidence " Punitive damages require a demonstration that the defendant had an " evil mind and | demonstrated aggravated and outrageous conduct. " " Herbal Care Systems, Inc. v. | Plaza, 2009 WL 692338, at * 5 (D. Ariz. 2009) . " In determining whether a defendant acted | | with an evil mind, courts look, in part, at " the nature of the defendant's conduct, including the reprehensibility of the conduct and the severity of the harm likely to result, as well as the harm that has occurred [, ] . . . [ t ] he duration of the misconduct, the degree of defendant's ! During pre - motion meet and confers, Plaintiff agreed to withdraw the claims set forth in paragraphs 114 (a) and (e), which set forth claims based on blocking authorized sales and forcing authorized sellers to lower prices to retain the Buy Box. The parties are preparing a stipulation to this effect. 12 5 awareness of the harm or risk of harm, and any concealment of it. " Thompson v. Better - Bilt | | Aluminum Products Co ., Inc ., 171 Ariz. 550, 556, 832 P. 2d 203 (1992) . Courts have allowed punitive damages claims to proceed where evidence supported that a defendant misappropriating a trademark " were aware of customer confusion but did nothing to remedy it. " Tiffany & Co. v. Costco Wholesale Corp ., 127 F. Supp. 3d 241, 262 (S. D. N. Y. 2015) (Denying motion for summary judgment on punitive damages request for trademark misappropriation claims under the Lanham Act and common law state unfair competition for Costco's use of " Tiffany " to describe diamond rings sold by Costco) (applying New York law) . Similarly, here, Kangaroo has presented evidence that Amazon I was made aware of its own counterfeit sales on multiple occasions in April and May 2017, but Amazon did not cease sales of these counterfeit items. SCF, 1 28. Specifically, Kangaroo raised merging of product listings and counterfeit sales, but the Amazon retail arm was permitted to override Kangaroo's intellectual property reports in the face of specific evidence that the merged products had different UPCs and manufacturers. Schnider Decl ., 17 (Exh. W) . A jury could find punitive damages are warranted under these facts. VI. CONCLUSION For all the foregoing reasons, Amazon's Motion for Summary Judgment should be denied. 13 5 DATED: August 13, 2018. CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP By: Litle Iefrer Timothy R. Grimm / Édith I. Rudder 1400 East Southern Avenue, Suite 400 Tempe, Arizona 85282 Attorneys for Plaintiff 14 5 CERTIFICATE OF SERVICE I hereby certify that on August 13, 2018, a true and correct copy of the foregoing document was electronically filed with the Clerk of the United States District Court of the District of Arizona by using the CM / ECF system, and that service will be accomplished by the CM / ECF system to all counsel of record. I further certify that I have mailed a true and correct copy of the foregoing document by United States Mail, first - class postage prepaid, sealed, as well as by email, addressed to: James Edward Geringer (james. geringer @ klarquist. com) Klarquist, Sparkman, L. L. P. 1 World Trade Ctr. 121 SW Salmon St ., Ste. 1600 Portland, Oregon 97204 Attorneys for Defendant Amazon. com John A. Goldmark (johngoldmark @ dwt. com) Max B. Hensley (maxhensley @ dwt. com) Davis Wright Tremaine 1201 Third Ave ., Ste. 2200 Seattle, WA 89101 - 3045 Attorneys for Defendant Amazon. com Mislichtach Vicki Goslin 15

Affidavit Declaration of Davie Schnider

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'DYLG 6FKQLGHU _ 3DUWQHU 12/$1 +(,0$11 //3 7 ann.com 16133 Ventura Blvd., Ste. 820 |Encino, CA 91436 www.nolanheimann.com 2Q $SU DW $0 QRWLFH#DPD]RQ FRP ZURWH +HOOR .$1*$5220 77:H UHYLHZHG \RXU UHSRUW DQG UHPRYHG WKH IROORZLQJ FRQWHQW EDVHG RQ WKH LQIRUPDWLRQ \RX SURYLGHG $6,1 % ann.com 16133 Ventura Blvd., Ste. 820 |Encino, CA 91436 www.nolanheimann.com 2Q $SU DW 30 QRWLFH#DPD]RQ FRP ZURWH +HOOR 7KDQN \RX IRU LQIRUPLQJ XV WKDW \RX UHWUDFWHG \RXU FRPSODLQW:H UHYLHZHG WKH LQIRUPDWLRQ \RX SURYLGHG DQG UHLQVWDWHG WKH IROORZLQJ FRQWHQW $6,1 % ann.com 16133 Ventura Blvd., Ste. 820 |Encino, CA 91436 www.nolanheimann.com On Apr 22 2017 at 1:44 AM notice@amazon com wrote: He o We reviewed your report and determined that it is incomp ete We cannot take action on or comp ete any of your requests P ease resubmit your report with a the required information as isted be ow -- A statement by you that you have a good-faith be ief that the use of the infringing content is not authorized by the rights owner its agent or the aw -- A statement by you made under pena ty of perjury that the [above] information in your notice is accurate and that you are the rights owner or authorized to act on the rights owner s beha f A notices of inte ectua property infringement must inc ude: -- The name and emai address of the person submitting the notice p us any additiona contact detai s -- The rights owner name if the notice is submitted by an agent of the rights owner -- IdentiQcation of the inte ectua property right asserted by registration number if app icab e -- IdentiQcation of the speciQc content on Amazon be ieved to be infringing by ASIN or URL -- Statement that the information in the notice is accurate -- Statement that the submitter is authorized to act on beha f of the rights owner and has a good-faith be ief that the use of the content is not authorized by the rights owner its agent or the aw ASIN: B0182WBENE Comp aint ID: 923754511 Sincere y Se er Performance Team ------------------------------------- From: dschnider@no anheimann com Sent: Friday Apri 21 2017 11:27 AM (PDT) Subject: Re: Your Amazon Enquiry Dear Amazon: This prob em has not been reso ved One se er Amazon continues to se a product on the item detai page for ASIN B0182WBENE that does not match the page and is different from the product being so d by a other se ers We DO NOT want the item detai page removed We on y want Amazon to remove the item that does not match and disassociate its UPC code from the page 1 The item detai page for ASIN B0182WBENE was created by an authorized Kangaroo distributor former y known as Yagoozon and now known as Swimming Poo F oats se ing awfu product manufactured by Kangaroo 2 The UPC code assigned to the item detai page used to be the correct code for Kangaroo s emoji beach ba product: 856082006009 .$1*$5220 azon are se ing authentic Kangaroo brand product that they purchased from Kangaroo Se ers Swimming Poo F oats B itz Store bsadgyw zxbhayi Ryan T Rid on 24hrs Dea s Coco James Sp endidProducts Raindropmfg Your #1 Source and Over The Moon Un td are a authorized Kangaroo distributors se ing the Kangaroo branded product that matches the item detai page 4 Amazon is the on y se er not providing authentic product It is se ing a RINCO item UPC number 097138842152 which used to be ASIN B01J2ARTJS and is no onger avai ab e 5 We be ieve that Amazon wou d never intentiona y counterfeit goods but it appears that someone accidenta y merged the UPC codes for the Kangaroo and RINCO items As a resu t Amazon is providing consumers with an inferior product that is fa se y branded and does not match the item detai page 6 We request that Amazon disassociate UPC number 097138842152 from ASIN B0182WBENE 7 We request that Amazon remove itse f as a se er from ASIN B0182WBENE because it is not se ing Kangaroo-branded product and the RINCO product it is shipping to customers is marked y different from the item depicted on the detai page 8 P ease DO NOT remove ASIN B0182WBENE from the cata og or remove any of the authorized se ers current y on the page as this wou d cause both them and Kangaroo signiQcant harm We appreciate your assistance in correcting this situation as quick y as possib e Regards David Schnider David Schnider Partner NOLAN HEIMANN LLP [cid:image002 jpg@01D10126 8CF92BE0] T 818 574 5710 M 818 207 5134 dschnider@no anheimann com<mai to:dschnider@no anheimann com> 16133 Ventura B vd Ste 820 Encino CA 91436 www no anheimann com<http://www no anheimann com/> On Apr 20 2017 at 12:11 AM notice@amazon com<mai to:notice@amazon com> wrote: He o We reviewed your report and determined that it is incomp ete We cannot take action on or comp ete any of your requests P ease resubmit your report with a the required information as isted be ow -- A statement by you that you have a good-faith be ief that the use of the infringing content is not authorized by the rights owner its agent or the aw -- A statement by you made under pena ty of perjury that the [above] information in your notice is accurate and that you are the rights owner or authorized to act on the rights owner s beha f A notices of inte ectua property infringement must inc ude: -- The name and emai address of the person submitting the notice p us any additiona contact detai s -- The rights owner name if the notice is submitted by an agent of the rights owner -- IdentiQcation of the inte ectua property right asserted by registration number if app icab e -- IdentiQcation of the speciQc content on Amazon be ieved to be infringing by ASIN or URL -- Statement that the information in the notice is accurate -- Statement that the submitter is authorized to act on beha f of the rights owner and has a good-faith be ief that the use of the content is not authorized by the rights owner its agent or the aw ASIN: B0182WBENE Comp aint ID: 921435851 Sincere y Se er Performance Team Amazon com<http://Amazon com> ------------------------------------- F i @ i .$1*$5220: dschnider@no anheimann com Sent: Wednesday Apri 19 2017 4:52 PM (PDT) Subject: ASIN B0182WBENE Dear Amazon: We represent Kangaroo Manufacturing Inc owner of the "Kangaroo" brand that is the subject of US Trademark Registration numbers 4897428 and 5132989 Kangaroo a so owns a registered copyright in its proprietary emoji designs We attach a copy of that registration and the re ated designs for your review Kangaroo s brand is a so enro ed in the Amazon Brand Registry Kangaroo s authorized distributors have been se ing Kangaroo s branded and copyrighted "Emoji Universe: 12" Emoji InRatab e Beach Ba s 12-Pack" under ASIN B0182WBENE Because of Kangaroo s designs and product qua ity this item has reached a number 1 ranking on Amazon in the beach ba category and is among the top se ers in Sports & Outdoor Kangaroo distributes this product under the unique UPC Number: 856082006009 It has come to our attention that Amazon apparent y merged the isting for Kangaroo s product with the isting for Rinco s emoji beach ba s ASIN B0182WBENE now reRects the UPC number for a competing product manufactured by Kangaroo s competitor Rhode Is and Nove ty Company (RINCO) whose product is UPC number 097138842152 The Rinco product is not manufactured by Kangaroo does not bear the Kangaroo brand does not inc ude Kangaroo s copyrighted designs and is of ower qua ity In other words the Rinco product does not match the item detai page (which is Kangaroo branded and actua y shows the product bearing Kangaroo s copyrighted designs) With the exception of Amazon a of the other se ers on the page are authorized Kangaroo distributors The product they are se ing is Kangaroo branded bears Kangaroo s copyrighted designs and matches the item detai page Amazon is the on y se er on the page current y shipping the Rinco product We p aced a test order number 114-9514301-8413019 and conQrmed that Amazon is shipping Rinco product not Kangaroo product However based on the presumab y accidenta merger of the UPC codes if any new se ers begin offering the Rinco product on Amazon it wi be isted on the Kangaroo item detai page This prob em is a serious threat to consumers who wi purchase the item expecting the Kangaroo product and Kangaroo design and wi instead receive the Rinco product that does not match what they ordered Because the Rinco product does not match the description on the page it is a vio ation of Amazon s own po icies Amazon s sa es of a Rinco product on an item detai page c ear y and correct y marked as a Kangaroo branded item constitutes a "bait and switch " which vio ates Kangaroo s trademarks and constitutes unfair competition and counterfeiting We demand that Amazon immediate y Qx this prob em by restoring the correct UPC Number 856082006009 to the item detai page and by removing the Rinco items it is se ing from the item detai page P ease note that if Amazon does not take immediate action to Qx this prob em Kangaroo wi need to consider ega action to protect consumers and enforce its rights We are hopefu that it wi not be necessary to take such steps and that Amazon wi act quick y to reso ve this prob em In doing so p ease DO NOT remove the item detai page or any of Kangaroo s authorized distributors Doing so wou d cause signiQcant Qnancia harm to both Kangaroo and those distributors We appreciate your prompt attention to this situation P ease do not hesitate to contact us if you need any additiona information Regards David Schnider [cid:253b5b38-b107-4247-a4b2-e40db8e2dc48@namprd03 prod out ook com] David Schnider Partner NOLAN HEIMANN LLP [cid:d23d6e67-4b13-40b8-9cb1-b056b0b05252@namprd03 prod out ook com] T 818 574 5710 M 818 207 5134 dschnider@no anheimann com<mai to:dschnider@no anheimann com> 16133 Ventura B vd Ste 820 Encino CA 91436 www no anheimann com<http://www no anheimann com/> .$1*$5220: David Schnider dschn der@no anhe mann.com Subject: Re: Your Amazon Enqu ry Date: Apr 21, 2017 at 11:27 AM To: not ce+A2L0N4WSXYD3WQ@amazon.com Cc: Ace Heman ace@kangaroomfg.com, Just n L ger jn co a@kangaroomfg.com, M tche F. Ducey mducey@md- p.com, Karen Ho me kho me@no anhe mann.com, Dav d Fo ett dav d@kangaroomfg.com Dear Amazon: Th s prob em has not been reso ved. One se er, Amazon, cont nues to se a product on the tem deta page for ASIN B0182WBENE that does not match the page and s d fferent from the product be ng so d by a other se ers. We DO NOT want the tem deta page removed. We on y want Amazon to remove the tem that does not match and d sassoc ate ts UPC code from the page. 1. The tem deta page for ASIN B0182WBENE was created by an author zed Kangaroo d str butor former y known as Yagoozon and now known as Sw mm ng Poo F oats, se ng awfu product manufactured by Kangaroo. 2. The UPC code ass gned to the tem deta page used to be the correct code for Kangaroo's emoj beach ba product: 856082006009. 3. A of the se ers on the page, except Amazon, are se ng authent c Kangaroo brand product that they purchased from Kangaroo. Se ers Sw mm ng Poo F oats, B tz Store, bsadgyw zxbhay, Ryan T. R d on, 24hrs Dea s, Coco James, Sp end dProducts, Ra ndropmfg, Your #1 Source, and Over The Moon Un td are a author zed Kangaroo d str butors se ng the Kangaroo branded product that matches the tem deta page. 4. Amazon s the on y se er not prov d ng authent c product. It s se ng a RINCO tem, UPC number 097138842152, wh ch used to be ASIN B01J2ARTJS and s no onger ava ab e. 5. We be eve that Amazon wou d never ntent ona y counterfe t goods, but t appears that someone acc denta y merged the UPC codes for the Kangaroo and RINCO tems. As a resu t, Amazon s prov d ng consumers w th an nfer or product that s fa se y branded and does not match the tem deta page. 6. We request that Amazon d sassoc ate UPC number 097138842152 from ASIN B0182WBENE. 7. We request that Amazon remove tse f as a se er from ASIN B0182WBENE, because t s not se ng Kangaroo-branded product and the RINCO product t s sh pp ng to customers s marked y d fferent from the tem dep cted on the deta page. 8. P ease DO NOT remove ASIN B0182WBENE from the cata og or remove any of the author zed se ers current y on the page, as th s wou d cause both them and Kangaroo s gn Scant harm. We apprec ate your ass stance n correct ng th s s tuat on as qu ck y as poss b e. Regards, Dav d Schn der David Schnider | Partner NOLAN HEIMANN LLP T. 818.574.5710 | M. 818.207.5134| dschnider@nolanheimann.com 16133 Ventura Blvd., Ste. 820 |Encino, CA 91436 www.nolanheimann.com On Apr 20, 2017, at 12:11 AM, not ce@amazon.com wrote: He o, We rev ewed your report and determ ned that t s ncomp ete. We cannot take act on on or comp ete any of your requests. P ease b d f db .$1*$5220 t your report w th a the requ red n ormat on as sted be ow. -- A statement by you that you have a good-fa th be ef that the use of the nfr ng ng content s not author zed by the r ghts owner, ts agent, or the aw. -- A statement by you, made under pena ty of perjury, that the [above] nformat on n your not ce s accurate and that you are the r ghts owner or author zed to act on the r ghts owner s beha f. A not ces of nte ectua property nfr ngement must nc ude: -- The name and ema address of the person subm tt ng the not ce, p us any add t ona contact deta s. -- The r ghts owner name, f the not ce s subm tted by an agent of the r ghts owner. -- Ident Scat on of the nte ectua property r ght asserted, by reg strat on number, f app cab e. -- Ident Scat on of the spec Sc content on Amazon be eved to be nfr ng ng, by ASIN or URL. -- Statement that the nformat on n the not ce s accurate. -- Statement that the subm tter s author zed to act on beha f of the r ghts owner and has a good-fa th be ef that the use of the content s not author zed by the r ghts owner, ts agent, or the aw. ASIN: B0182WBENE Comp a nt ID: 921435851 S ncere y, Se er Performance Team Amazon.com ------------------------------------- From: dschn der@no anhe mann.com Sent: Wednesday, Apr 19, 2017 4:52 PM (PDT) Subject: ASIN B0182WBENE Dear Amazon: We represent Kangaroo Manufactur ng, Inc., owner of the "Kangaroo" brand that s the subject of US Trademark Reg strat on numbers 4897428 and 5132989. Kangaroo a so owns a reg stered copyr ght n ts propr etary emoj des gns. We attach a copy of that reg strat on and the re ated des gns for your rev ew. Kangaroo's brand s a so enro ed n the Amazon Brand Reg stry. Kangaroo's author zed d str butors have been se ng Kangaroo's branded and copyr ghted "Emoj Un verse: 12" Emoj InTatab e Beach Ba s, 12-Pack" under ASIN B0182WBENE. Because of Kangaroo's des gns and product qua ty, th s tem has reached a number 1 rank ng on Amazon n the beach ba category and s among the top se ers n Sports & Outdoor. Kangaroo d str butes th s product under the un que UPC Number: 856082006009. It has come to our attent on that Amazon apparent y merged the st ng for Kangaroo's product w th the st ng for R nco's emoj beach ba s. ASIN B0182WBENE now reTects the UPC number for a compet ng product manufactured by Kangaroo's compet tor, Rhode Is and Nove ty Company (RINCO), whose product s UPC number 097138842152. The R nco product s not manufactured by Kangaroo, does not bear the Kangaroo brand, does not nc ude Kangaroo's copyr ghted des gns, and s of ower qua ty. In other words, the R nco product does not match the tem deta page (wh ch s Kangaroo branded and actua y shows the product bear ng Kangaroo's copyr ghted des gns). W th the except on of Amazon, a of the other se ers on the page are author zed Kangaroo d str butors. The product they are se ng s Kangaroo branded, bears Kangaroo's copyr ghted des gns, and matches the tem deta page. Amazon s the on y se er on the page current y sh pp ng the R nco product. We p aced a test order, number 114-9514301-8413019, and conSrmed that Amazon s sh pp ng R nco product, not Kangaroo product. However, based on the presumab y acc denta merger of the UPC codes, f any new se ers beg n offer ng the R nco product on Amazon, t w be sted on the Kangaroo tem deta page. Th s prob em s a ser ous threat to consumers who w purchase the tem expect ng the Kangaroo product and Kangaroo des gn and w nstead rece ve the R nco product that does not match what they ordered. Because the R nco product does not match the descr pt on on the page, t s a v o at on of Amazon's own po c es. Amazon's sa es of a R nco product on an tem deta page c ear y and correct y marked as a Kangaroo branded tem const tutes a "ba t and sw tch," wh ch v o ates Kangaroo's trademarks and const tutes unfa r compet t on and counterfe t ng. We demand that Amazon mmed ate y Sx th s prob em by restor ng the correct UPC Number, 856082006009, to the tem deta page and by remov ng the R nco tems t s se ng from the tem deta page. P ease note that f Amazon does not take mmed ate act on to Sx th s prob em, Kangaroo w need to cons der ega act on to protect consumers and enforce ts r ghts. We are hopefu that t w not be necessary to take such steps and that Amazon w act qu ck y to reso ve th s prob em. In do ng so, p ease DO NOT remove the tem deta page or any of Kangaroo's author zed d str butors. Do ng so wou d cause s gn Scant Snanc a harm to both Kangaroo and those d str butors. We apprec ate your prompt attent on to th s s tuat on. P ease do not hes tate to contact us f you need any add t ona nformat on. 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Affidavit Declaration of Timothy Grimm

93 CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Attorneys at Law 1400 E. Southern Ave., Suite 400 Tempe, Arizona 85282-5691 (480) 427-2800, Facsimile (480) 427-2801 minuteentries@carpenterhazlewood.com Mark K. Sahl 025729 Timothy R. Grimm 019110 Edith I. Rudder 020650 KANGAROOM.0003 azon.com -RKQ $ *ROGPDUN MRKQJROGPDUN#GZW FRP 0D[ % +HQVOH\ PD[KHQVOH\#GZW FRP 'DYLV:ULJKW 7UHPDLQH 7KLUG $YH 6WH 6HDWWOH:$ azon.com 9LFNL *RVOLQ 93 93 $WNLQVRQ %DNHU &RXUW 5HSRUWHUV ZZZ GHSR FRP ·1· · · · · · · IN THE UNITED STATES DISTRICT COURT ·2· · · · · · · · · FOR THE DISTRICT OF ARIZONA ·3 ·4· ·Kangaroo Manufacturing,· · · ·)· No. · · ·Inc.,· · · · · · · · · · · · ·)· CV-17-1806-PHX-SPL ·5· · · · · · · · · · · · · · · · ·) · · · · · · · · · · Plaintiff,· · ·) ·6· · · · · · · · · · · · · · · · ·) · · ·v.· · · · · · · · · · · · · · ·) ·7· · · · · · · · · · · · · · · · ·) · · ·Amazon.com, Inc.,· · · · · · ·) ·8· · · · · · · · · · · · · · · · ·) · · · · · · · · · · Defendant.· · ·) ·9· ·_______________________________) 10 11 12 13 14· · · · · · · ·VIDEOTAPED 30(b)(6) DEPOSITION OF · · · · · · · · · · KANGAROO MANUFACTURING, INC. 15· · · · · · · · · · · · · (ACE HEMANI) 16· · · · · · · · · · · · ·April 19, 2018 · · · · · · · · · · · · · · ·11:42 a.m. 17· · · · · · · · · · · · ·Tempe, Arizona 18 19 20 21 22 23· ·AtkinsonBaker, Inc. · · ·Court Reporters· · · · · · · · · ·Prepared by: 24· ·(800) 288-3376· · · · · · · · · · Marcella Daughtry, RPR · · ·www.depo.com· · · · · · · · · · · Arizona CR No. 50623 25· ·FILE NO. AC03BDE $FH +HPDQL $SULO emos to P2P for any of the four products we 01:43:56 ·4· ·have discussed today:· balls, balloons, crown, hat? 01:43:59 ·5· · · ·A· · I -- I don't have a report with me, but 01:44:03 ·6· ·if -- I would assume so. 01:44:08 ·7· · · ·Q· · Why would you assume so? 01:44:09 ·8· · · ·A· · Especially with the -- with the wide array of 01:44:11 ·9· ·products that P2P carries. 01:44:17 10· · · ·Q· · Perhaps I'm using the term wrong.· What do you 01:44:20 11· ·understand by the term "credit memo"? 01:44:24 12· · · ·A· · Canceled order because they don't need it, 01:44:26 13· ·issues with the price in the market.· We have a MAP 01:44:32 14· ·policy in place, so if it goes below the MAP, then we 01:44:39 15· ·have to make it right with the seller. 01:44:44 16· · · ·Q· · By MAP, you mean capital M, capital A, capital 01:44:45 17· ·P, minimum advertised price? 01:44:50 18· · · ·A· · Yes. 01:44:52 19· · · ·Q· · So where is the MAP policy recorded? 01:44:53 20· · · ·A· · So we have it stored in a Google Drive link 01:44:56 21· ·that sellers can go in and -- and -- and see what the 01:45:03 22· ·MAP -- MAP price is. 01:45:06 23· · · ·Q· · That changes from time to time, I take it? 01:45:07 24· · · ·A· · It's based on the market.· And the demand and 01:45:13 25· ·supply, it does change.· Not frequently, but it does 01:45:16 $FH +HPDQL $SULO e 01:45:24 ·5· ·for a specific Kangaroo offering? 01:45:27 ·6· · · ·A· · Correct. 01:45:30 ·7· · · ·Q· · There's not different MAPs for different 01:45:31 ·8· ·sellers, are there? 01:45:33 ·9· · · ·A· · No. 01:45:34 10· · · ·Q· · Basically this is a line by which if a seller 01:45:35 11· ·comes and says, I got some 1099 product in inventory, 01:45:39 12· ·and the party with the buy box at Amazon is offering at 01:45:44 13· ·a lower price than the MAP, they can ask for a credit 01:45:49 14· ·memo from Kangaroo? 01:45:53 15· · · ·A· · So it depends on the severity of it, right. 01:45:54 16· ·Where there's an item, like this item that was an issue 01:45:58 17· ·for 10099, that was an issue for a very long period of 01:46:01 18· ·time, yes.· But usually what we'll do is if it's a 01:46:05 19· ·short period, like a couple days, a lot of times 01:46:14 20· ·there's a seller that comes in that is fairly new and 01:46:16 21· ·that will break our policies, and then we'll cut them 01:46:18 22· ·off and not sell to them ever again. 01:46:20 23· · · ·Q· · But why would P2P get any credit memos? 01:46:22 24· · · ·A· · P2P took a hit on this product (indicating). 01:46:26 25· · · ·Q· · Okay.· So Kangaroo reimburses P2P in that 01:46:29 $FH +HPDQL $SULO ean, if you take a loss on an item, then 01:46:34 ·3· ·that's what we do for everybody.· Why would we do it 01:46:37 ·4· ·for P2P? 01:46:41 ·5· · · ·Q· · Well, is Kangaroo seeking money from Amazon to 01:46:42 ·6· ·repay it for money that Kangaroo gave to P2P? 01:46:46 ·7· · · · · · MR. GRIMM:· Form, foundation. 01:46:49 ·8· · · · · · THE WITNESS:· That's not in my wheelhouse to 01:46:50 ·9· ·answer. 01:46:52 10· · · ·Q· · BY MR. GERINGER:· Okay.· Well, is -- has 01:46:53 11· ·Kangaroo issued credit memos to P2P for the 10099 beach 01:46:57 12· ·ball product? 01:47:04 13· · · ·A· · I honestly can't say.· I don't know. 01:47:05 14· · · ·Q· · Okay. 01:47:08 15· · · ·A· · I don't know. 01:47:09 16· · · ·Q· · Do you know any instances where P2P sought and 01:47:10 17· ·received a credit memo for any of the products we've 01:47:17 18· ·discussed today:· balls, balloons, crowns, hats? 01:47:21 19· · · ·A· · Again, we -- they sell every product in our 01:47:24 20· ·line, and they get credit memos on a regular basis 01:47:27 21· ·based on the conditions of the market. 01:47:29 22· · · ·Q· · Has Kangaroo ever authorized any production 01:47:31 23· ·that was not shipped to the United States? 01:47:40 24· · · · · · MR. GRIMM:· Form. 01:47:46 25· · · · · · THE WITNESS:· We've done very, very, very, 01:47:49 $FH +HPDQL $SULO ount. 01:49:17 ·2· · · ·Q· · Which seller was he on Cook Exhibit 5? 01:49:17 ·3· · · ·A· · I don't recall what his company name was. 01:49:20 ·4· · · ·Q· · Okay.· Do you recall a time when Mr. Snively 01:50:17 ·5· ·was selling Kangaroo pool float products below the MAP? 01:50:27 ·6· · · ·A· · Yes, sir. 01:50:33 ·7· · · ·Q· · And what effect did that have on Kangaroo? 01:50:33 ·8· · · ·A· · I think it diminishes product price, which in 01:50:36 ·9· ·turn can reduce the price that the buy box can be 01:50:42 10· ·owned, and that's a huge loss for us.· And it also 01:50:45 11· ·creates product deterioration, in my opinion, and it 01:50:49 12· ·creates more competition in the market to lower the 01:50:52 13· ·price for something that shouldn't be lowered. 01:50:54 14· · · ·Q· · Was Its Greggie also a comp- -- a seller that 01:50:58 15· ·undercut the MAP on Amazon? 01:51:00 16· · · ·A· · Yes.· So our -- our relationship with Its 01:51:02 17· ·Greggie is a little bit different than what it is 01:51:06 18· ·with -- with Snively.· We've had some issues, but 01:51:08 19· ·they've corrected them, and they are no longer allowed 01:51:12 20· ·to buy from us, but they still maintain MAP pricing for 01:51:14 21· ·the items that they do have left. 01:51:19 22· · · ·Q· · They are just selling out of the existing 01:51:20 23· ·inventory? 01:51:23 24· · · ·A· · Correct. 01:51:23 25· · · ·Q· · Or be acquiring it someplace else? 01:51:24 $FH +HPDQL $SULO 01:51:26 ·2· ·somewhere else, but it's possible. 01:51:33 ·3· · · ·Q· · What price does Yagoozon sell at wholesale to 01:51:35 ·4· ·approved Amazon sellers the 10099 beach ball product? 01:51:41 ·5· ·7 bucks a pack, right? 01:51:47 ·6· · · ·A· · Yagoozon doesn't sell to Amazon; so it's 01:51:49 ·7· ·Kangaroo, yes. 01:51:55 ·8· · · ·Q· · Thank you for correcting. 01:51:56 ·9· · · · · · So at seven bucks a pack, there's room for 01:51:57 10· ·markup if -- if somebody wants to, you know, resell it, 01:52:00 11· ·it could buy from Kangaroo at 7 and resell? 01:52:02 12· · · · · · MR. GRIMM:· Form. 01:52:05 13· · · ·Q· · BY MR. GERINGER:· There's still room for -- 01:52:05 14· ·for markup, right? 01:52:07 15· · · ·A· · No. 01:52:08 16· · · ·Q· · Not at all?· You don't think somebody can 01:52:08 17· ·resell that product and then make a profit? 01:52:11 18· · · ·A· · On Amazon via FBA? 01:52:12 19· · · ·Q· · Yeah. 01:52:16 20· · · ·A· · No. 01:52:17 21· · · ·Q· · Why not? 01:52:17 22· · · ·A· · The margin doesn't exist. 01:52:17 23· · · ·Q· · Because the average selling price is what? 01:52:19 24· · · ·A· · It should be -- I believe it's 11.95. 01:52:22 25· · · ·Q· · Okay.· I mean, Amazon is not selling the 10099 01:52:25 $FH +HPDQL $SULO azon made of these four products, 02:09:32 ·3· ·correct? 02:09:34 ·4· · · ·A· · Yes. 02:09:34 ·5· · · ·Q· · Did you tell him to make that assumption? 02:09:35 ·6· · · ·A· · I don't remember. 02:09:37 ·7· · · ·Q· · Did you tell him that Kangaroo's approved 02:09:40 ·8· ·Amazon sellers would make a vast majority of the 02:09:45 ·9· ·accused sales? 02:09:48 10· · · ·A· · I don't recall that conversation, but it 02:09:50 11· ·would. 02:09:53 12· · · ·Q· · If you had described it in those terms, a vast 02:09:55 13· ·majority, what would a vast majority mean? 02:10:02 14· · · ·A· · If Amazon wasn't selling on those detail pages 02:10:06 15· ·or allowing counterfeit product to be sold on those 02:10:19 16· ·detail pages, we would have -- we would have 02:10:22 17· ·experienced those sales. 02:10:25 18· · · ·Q· · When you say allowing counterfeit products to 02:10:27 19· ·be sold on the -- on the pages, was there any instance 02:10:35 20· ·in which Amazon got a documented notice of claimed 02:10:38 21· ·infringement where Amazon did not respond? 02:10:42 22· · · ·A· · Yes. 02:10:45 23· · · ·Q· · Please tell me when. 02:10:45 24· · · ·A· · Our attorney David Schnider handled all that. 02:10:48 25· · · ·Q· · Okay.· Are you aware that Kangaroo made a 02:10:54 $FH +HPDQL $SULO ber of claims of infringement to Amazon regarding 02:10:59 ·2· ·these products that we're talking about today? 02:11:04 ·3· · · ·A· · Yes. 02:11:09 ·4· · · ·Q· · And are you aware that Amazon deactivated a 02:11:10 ·5· ·number of listings when it received claims of 02:11:14 ·6· ·infringement from Kangaroo? 02:11:17 ·7· · · ·A· · They deactivated, but they didn't deactivate 02:11:18 ·8· ·all of them.· They selected some that they wanted to 02:11:23 ·9· ·deactivate, and they didn't even deactivate themselves. 02:11:27 10· ·There's a point in time where we filed the claim 02:11:31 11· ·against Amazon for the counterfeit product, and they 02:11:33 12· ·took everyone off the page except themselves, and they 02:11:38 13· ·are the ones with the counterfeit inventory. 02:11:41 14· · · ·Q· · Are you sure they took everyone off the page 02:11:43 15· ·except Amazon? 02:11:46 16· · · ·A· · Yes. 02:11:47 17· · · ·Q· · Absolutely everyone except Amazon?· No -- 02:11:47 18· ·no -- 02:11:47 19· · · ·A· · There might -- 02:11:47 20· · · ·Q· · -- Kangaroo-approved sellers -- 02:11:51 21· · · ·A· · There might have been -- 02:11:51 22· · · ·Q· · -- also remaining? 02:11:53 23· · · ·A· · There might have been some merchant offers, 02:11:53 24· ·but no FBA offers were on the page for a few days when 02:11:56 25· ·only Amazon was on the page. 02:12:00 $FH +HPDQL $SULO ade allegations that the inventory was sullied? 02:12:06 ·5· · · ·A· · We made allegations that Amazon was selling 02:12:10 ·6· ·counterfeit product, and they decided to take everybody 02:12:13 ·7· ·off but Amazon. 02:12:16 ·8· · · ·Q· · You also made allegations that the inventory 02:12:17 ·9· ·was commingled, correct? 02:12:19 10· · · ·A· · I don't know when that product went from 02:12:21 11· ·commingled to not commingled, but, to my knowledge, it 02:12:23 12· ·was after it was not commingled.· That item is not 02:12:26 13· ·commingled right now, and it hasn't been for some time. 02:12:29 14· · · ·Q· · Other than those few -- that example of the 02:12:33 15· ·few days when Kangaroo says Amazon deactivated too many 02:12:36 16· ·sellers? 02:12:41 17· · · ·A· · Everybody that was legit got deactivated, yes. 02:12:41 18· · · ·Q· · Well, everybody that you had said was illegit 02:12:45 19· ·except Amazon got deactivated, right?· All the 02:12:51 20· ·third-party sellers got deactivated for those few days, 02:12:53 21· ·right? 02:12:57 22· · · ·A· · Yes. 02:12:57 23· · · ·Q· · Did any of the accused sellers get 02:12:58 24· ·reactivated, or only -- 02:13:00 25· · · ·A· · I don't know if at that time.· I don't even 02:13:02 $FH +HPDQL $SULO e if there is anybody on the page 02:13:04 ·2· ·that was illegit.· I think only Amazon was illegit 02:13:07 ·3· ·when -- at this period in time where we got -- everyone 02:13:11 ·4· ·got kicked off. 02:13:14 ·5· · · ·Q· · Now, Amazon gets its product from, you know, 02:13:15 ·6· ·sources, vendors, and one of them, as we've disclosed 02:13:26 ·7· ·to your counsel, is Rhode Island Novelty.· Are you 02:13:31 ·8· ·aware of that? 02:13:34 ·9· · · ·A· · I am aware of that. 02:13:35 10· · · ·Q· · Is Rhode Island Novelty -- well, and I should 02:13:37 11· ·be clear.· Rhode Island -- our information is that 02:13:39 12· ·Rhode Island Novelty sold to a company called Oasis 02:13:45 13· ·Supply, and Oasis Supply sold to Amazon.· Oasis Supply 02:13:47 14· ·tells us they got it from Rhode Island Novelty.· Is 02:13:51 15· ·Rhode Island Novelty a company that Kangaroo has had 02:13:54 16· ·problems with? 02:13:58 17· · · ·A· · No. 02:13:59 18· · · ·Q· · Is it a company that Kangaroo, you know, 02:14:01 19· ·respects as a company run aboveboard, not a 02:14:06 20· ·fly-by-night counterfeiter? 02:14:10 21· · · ·A· · So that was a whole different topic of 02:14:11 22· ·discussion. 02:14:16 23· · · ·Q· · Okay.· What is that topic? 02:14:16 24· · · ·A· · The two listings got merged together, so 02:14:18 25· ·Exhibit 22 and Exhibit 17 were being sold under the 02:14:23 $FH +HPDQL $SULO e page, because this UPC was merged with this one 02:14:27 ·2· ·(indicating).· Exhibit 17 was merged with Exhibit 22. 02:14:31 ·3· · · ·Q· · I saw that allegation in the complaint.· I -- 02:14:37 ·4· · · ·A· · That was probably one of the most difficult 02:14:41 ·5· ·cases I've had to deal with with Amazon, because they 02:14:43 ·6· ·wouldn't separate the inventory because they had a 02:14:46 ·7· ·vested interest because they bought inventory of it. 02:14:50 ·8· · · ·Q· · Is it because it had a vested interest or is 02:14:51 ·9· ·it because RIN's page, Rhode Island Novelty's page, for 02:14:53 10· ·another product used the same photo as the 10099 02:14:54 11· ·listing? 02:15:00 12· · · ·A· · I'm not aware of what photos they were using 02:15:00 13· ·before the merger. 02:15:03 14· · · ·Q· · You are not aware of RIN having product detail 02:15:04 15· ·pages that showed the same photo as the 10099 products 02:15:08 16· ·detail page? 02:15:13 17· · · ·A· · So some seller or Amazon changed that picture. 02:15:14 18· ·I was told that this product can't be split five times 02:15:18 19· ·because they are the same product, and the retail team 02:15:21 20· ·won't allow the change. 02:15:24 21· · · ·Q· · I think all fungible products should be on one 02:15:25 22· ·detail page if they are identical, same SKU, same UPC. 02:15:29 23· ·They should be on one detail page.· That's your 02:15:34 24· ·understanding of -- 02:15:36 25· · · ·A· · But it's not -- 02:15:36 $FH +HPDQL $SULO azon policy, right? 02:15:36 ·2· · · ·A· · -- one UPC. 02:15:38 ·3· · · ·Q· · This seems -- Kangaroo's allegation is that a 02:15:39 ·4· ·mistake happened and RIN product -- 02:15:42 ·5· · · ·A· · You call it a mistake; I call it intention. 02:15:45 ·6· · · ·Q· · Well, Kangaroo has alleged that RIN product 02:15:47 ·7· ·marked as Exhibit 17 was used to fulfill orders placed 02:15:50 ·8· ·on the product detail page for the 1099 -- 10099 02:15:54 ·9· ·product for which a specimen has been marked as Exhibit 02:16:00 10· ·22; is that right? 02:16:03 11· · · ·A· · Yes. 02:16:04 12· · · ·Q· · Now, those RIN products, they didn't use 02:16:05 13· ·Kangaroo's emoji images, right? 02:16:09 14· · · ·A· · No, they are different product.· They are 02:16:12 15· ·different quality grade, different testing. 02:16:14 16· · · ·Q· · The complaint against sales of those RIN 02:16:17 17· ·products off the 10099 product detail page is that 02:16:19 18· ·Kangaroo's trademark appeared on a product detail page. 02:16:28 19· ·Is that it? 02:16:32 20· · · ·A· · Can you repeat the question? 02:16:32 21· · · ·Q· · Well, what's the -- the RIN product shown as 02:16:35 22· ·Exhibit 17, it doesn't use anything that Kangaroo has 02:16:38 23· ·copyrighted, right? 02:16:42 24· · · ·A· · The -- to my knowledge, the emojis are 02:16:43 25· ·copyrighted. 02:16:46 $FH +HPDQL $SULO ojis? 02:16:52 ·6· · · ·A· · No. 02:16:53 ·7· · · ·Q· · To your knowledge, does the RIN product have 02:16:53 ·8· ·the word Kangaroo anywhere on it? 02:16:55 ·9· · · ·A· · No, it does not. 02:16:57 10· · · ·Q· · Okay.· If that product were sold in the place 02:16:58 11· ·of a unit of the 1099 product, what's Kangaroo's beef? 02:17:01 12· ·It's that the product detail page should be -- strike 02:17:08 13· ·that. 02:17:08 14· · · · · · What's Kangaroo's beef? 02:17:14 15· · · · · · MR. GRIMM:· Form, foundation. 02:17:17 16· · · · · · THE WITNESS:· This -- this is our product 02:17:18 17· ·(indicating), our -- our images, our IP.· You can't sub 02:17:20 18· ·it out for something else. 02:17:28 19· · · ·Q· · BY MR. GERINGER:· Well, we've established that 02:17:29 20· ·the product is actually a different one, right?· The 02:17:32 21· ·RIN product is a different one from the 10099 beach 02:17:34 22· ·balls, right? 02:17:38 23· · · ·A· · Yes. 02:17:38 24· · · ·Q· · Okay.· What has -- what right of Kangaroo has 02:17:39 25· ·been infringed by the sale of the RIN products 02:17:50 $FH +HPDQL $SULO. 02:18:01 ·4· · · · · · THE WITNESS:· The customer thinks they are 02:18:02 ·5· ·getting this emoji universe product.· They end up with 02:18:03 ·6· ·this product (indicating).· Well, how happy are you 02:18:07 ·7· ·when you go to McDonald's and you order a Coke and you 02:18:09 ·8· ·get a Dr. Pepper? 02:18:14 ·9· · · ·Q· · BY MR. GERINGER:· So it's a trademark issue; 02:18:16 10· ·it's a brand issue? 02:18:18 11· · · · · · MR. GRIMM:· Form. 02:18:19 12· · · · · · THE WITNESS:· I believe it's a brand issue, 02:18:19 13· ·it's a trademark issue, and it's a customer rating 02:18:21 14· ·issue. 02:18:24 15· · · ·Q· · BY MR. GERINGER:· A reputation issue? 02:18:25 16· · · ·A· · Correct. 02:18:28 17· · · ·Q· · But that -- it's not a copyright issue, right? 02:18:29 18· · · · · · MR. GRIMM:· Form, foundation. 02:18:35 19· · · ·Q· · BY MR. GERINGER:· You are not alleging that 02:18:38 20· ·the RIN product violated your copyrights? 02:18:39 21· · · ·A· · I'm -- I don't have a law background.· I'm not 02:18:42 22· ·sure how to answer that question. 02:18:45 23· · · ·Q· · And that's actually on a topic for tomorrow, 02:18:46 24· ·so I'll drop that line of questioning for now. 02:18:49 25· · · · · · But Cook assumed copyright infringement by all 02:18:51 $FH +HPDQL $SULO, foundation. 02:19:02 ·4· · · · · · THE WITNESS:· I -- I don't know. 02:19:06 ·5· · · ·Q· · BY MR. GERINGER:· You're designated as 02:19:08 ·6· ·Kangaroo's witness for the assumed facts in Cook's 02:19:11 ·7· ·report, correct? 02:19:14 ·8· · · ·A· · Yes. 02:19:17 ·9· · · ·Q· · And Cook assumed -- strike that. 02:19:18 10· · · · · · Did Cook assume that all of the Amazon sales 02:19:20 11· ·off the 10099 detail page infringed Kangaroo 02:19:27 12· ·copyrights? 02:19:32 13· · · ·A· · I'm not certain what he assumed. 02:19:34 14· · · ·Q· · You are not certain what he assumed regarding 02:19:49 15· ·copyright infringement? 02:19:52 16· · · ·A· · Correct. 02:19:54 17· · · ·Q· · The scope of copyright infringement? 02:19:54 18· · · ·A· · Correct. 02:19:57 19· · · ·Q· · The number of units that would have infringed? 02:19:58 20· · · ·A· · Correct. 02:20:00 21· · · ·Q· · You are not sure whether he assumed that the 02:20:00 22· ·RIN products allegedly sold off the 10099 detail page 02:20:04 23· ·infringed the copyright?· You are not sure? 02:20:12 24· · · ·A· · I'm not sure. 02:20:14 25· · · ·Q· · You don't know what assumptions he made 02:20:15 $FH +HPDQL $SULO akes the sale, yes. 02:46:13 ·2· · · ·Q· · If you look at paragraph 21 -- I'm going to 02:46:19 ·3· ·try to walk through this sequentially, so hopefully it 02:46:25 ·4· ·will be fairly thematic.· But it is based on how the 02:46:30 ·5· ·complaint makes its allegations as we walk through. 02:46:34 ·6· · · · · · So paragraph 21 on page 4 of the complaint -- 02:46:38 ·7· ·sorry, on page 3 of the complaint, states, "Amazon has 02:46:42 ·8· ·overcharged Plaintiff's authorized resellers for 02:46:45 ·9· ·storage and fulfillment fees." 02:46:48 10· · · · · · Do you have any evidence that supports that 02:46:50 11· ·allegation? 02:46:58 12· · · ·A· · I do not. 02:46:58 13· · · ·Q· · Turning to paragraph 28, it says that, 02:46:59 14· ·"Plaintiff's has been damaged by improper 02:47:07 15· ·administration of the buy box by Amazon." 02:47:08 16· · · · · · Do you have any basis for Kangaroo telling 02:47:16 17· ·Amazon how to administer the buy box? 02:47:23 18· · · ·A· · So I'm -- I'm sure you are aware of how the 02:47:26 19· ·buy box works and the basis of the buy box.· Are you 02:47:30 20· ·aware of how the buy box disappears when a product has 02:47:34 21· ·been sold for a lot lower price than it should be sold 02:47:39 22· ·for, and then it goes back up to the higher price?· Are 02:47:42 23· ·you aware of how that works? 02:47:45 24· · · ·Q· · I'm not sure I understand what you are 02:47:46 25· ·describing, but please -- 02:47:48 $FH +HPDQL $SULO uch time as you like.· Because my 02:47:51 ·3· ·question here is, does Amazon have to administer the 02:47:54 ·4· ·buy box in a way that satisfies Kangaroo? 02:47:58 ·5· · · ·A· · Amazon should issue a buy box fair to all 02:48:02 ·6· ·sellers, right?· It's not -- the complaint isn't that 02:48:09 ·7· ·it's -- the complaint is that because of the 02:48:13 ·8· ·counterfeiting, the buy box can't be attained for a 02:48:18 ·9· ·price that we would normally charge a customer. 02:48:21 10· · · ·Q· · Okay.· So that is limited then to the 02:48:24 11· ·instances where some counterfeit products has allegedly 02:48:27 12· ·been sold in one of these four products that we've been 02:48:34 13· ·discussing? 02:48:37 14· · · ·A· · And the price has been deteriorated, yes. 02:48:38 15· · · ·Q· · Correct.· Okay.· So it's a subset of these 02:48:40 16· ·four products' sales on Amazon; some of those sales 02:48:42 17· ·were by sellers whom Kangaroo alleges were selling 02:48:47 18· ·counterfeit product and got the buy box to help do so. 02:48:53 19· ·Is that the allegation? 02:49:00 20· · · ·A· · I believe -- I'm not 100 percent certain, but 02:49:03 21· ·I believe that part of the complaint is, we can't sell 02:49:06 22· ·this product again at our normal 11.95, 12.95, 13.95 02:49:09 23· ·price because it was being sold at 8- or $9 or 7- or 8- 02:49:14 24· ·or $9, right?· Amazon is going to take away the ability 02:49:20 25· ·to purchase this item without going to a different page 02:49:24 $FH +HPDQL $SULO not sure I understood your answer.· I'm 02:49:27 ·3· ·asking whether -- let me ask it this way.· Other than 02:49:35 ·4· ·the -- an instance of fulfilling a order with a 02:49:43 ·5· ·counterfeit product, other than those alleged 02:49:50 ·6· ·infringement instances, does Kangaroo think that Amazon 02:49:53 ·7· ·has to administer the buy box in some particular way 02:50:02 ·8· ·for Kangaroo's benefit? 02:50:06 ·9· · · ·A· · Amazon takes away the buy box to avoid 02:50:07 10· ·consumers being charged a rather higher price than the 02:50:10 11· ·normal price, right?· So when things sell for a lower 02:50:17 12· ·price, Amazon considers that the normal price, and then 02:50:21 13· ·it takes the buy box away when it's higher than a 02:50:24 14· ·particular point.· We are unable to move goods when 02:50:28 15· ·that buy box is taken away.· People don't purchase the 02:50:31 16· ·product when there is no buy box, right?· So Amazon 02:50:34 17· ·took away our buy box because of the counterfeiting 02:50:36 18· ·issue. 02:50:40 19· · · ·Q· · When you say "took away our buy box," you mean 02:50:40 20· ·P2P's buy box? 02:50:44 21· · · ·A· · Everyone that was above the normal price that 02:50:45 22· ·Amazon had dictated was normal based on the counterfeit 02:50:49 23· ·product. 02:50:53 24· · · ·Q· · Okay.· So who lost the buy box that Kangaroo 02:50:53 25· ·feels Amazon should have let keep the buy box, P2P? 02:50:57 $FH +HPDQL $SULO going to try to explain it from 02:51:04 ·2· ·a -- from an example perspective, okay?· Our emoji 02:51:07 ·3· ·beach balls are selling for $15, okay?· Amazon comes 02:51:10 ·4· ·along and sells it for $9 or $8 or $7, whatever that 02:51:15 ·5· ·price is.· Now Amazon is going to consider this product 02:51:20 ·6· ·to be that normal price if it's gone on for some time. 02:51:22 ·7· ·And they don't disclose what that some time is or how 02:51:26 ·8· ·many units have to be sold for that to be the normal 02:51:30 ·9· ·price, right?· It's proprietary to their system. 02:51:32 10· · · · · · Now, we finally got Amazon off from 02:51:35 11· ·counterfeiting this product, but when we go past a 02:51:38 12· ·certain price, let's say $12, that buy box disappears; 02:51:40 13· ·it's no longer active.· You have to click the button on 02:51:43 14· ·the side that says, see all buying choices and then add 02:51:48 15· ·it to cart.· Nobody is shown the buy box in this 02:51:50 16· ·instance because Amazon says, okay, I'm going to 02:51:54 17· ·protect the consumer because it's a $9 item, and 02:51:56 18· ·everyone is trying to sell it for 15. 02:52:00 19· · · ·Q· · And is it your testimony that Amazon has an 02:52:02 20· ·obligation to give a Kangaroo-approved seller the buy 02:52:05 21· ·box? 02:52:08 22· · · · · · MR. GRIMM:· Form, foundation. 02:52:08 23· · · · · · THE WITNESS:· The buy box was taken away 02:52:09 24· ·because of the counterfeiting issue, not because Amazon 02:52:12 25· ·decides, oh, hey, today I feel like taking the buy box 02:52:15 $FH +HPDQL $SULO aware of. 02:52:30 ·7· · · ·Q· · Has Kangaroo given Amazon any notices of 02:52:37 ·8· ·claimed infringement since June of 2017 on any of these 02:52:42 ·9· ·four products for any listings on the site? 02:52:46 10· · · ·A· · We've gotten other counterfeiters off the 02:52:50 11· ·pages since then. 02:52:55 12· · · ·Q· · By submitting notices of claimed infringement 02:52:56 13· ·to Amazon? 02:53:00 14· · · ·A· · Correct, via our attorney David Schnider. 02:53:01 15· · · ·Q· · When was the last time -- strike that. 02:53:04 16· · · · · · Let's go to -- I skipped a paragraph, sorry. 02:53:08 17· ·You have to go back to paragraph 9.· This allegation 02:53:20 18· ·alleges that -- it alleges Amazon's willful and 02:53:25 19· ·continuing infringement of Kangaroo's rights.· Do you 02:53:33 20· ·see that? 02:53:35 21· · · ·A· · I'm reading it. 02:53:35 22· · · ·Q· · Let me know when you are ready. 02:53:37 23· · · ·A· · Okay. 02:53:47 24· · · ·Q· · What evidence can you identify for me that 02:53:48 25· ·supports the allegation that Amazon willfully infringed 02:53:50 $FH +HPDQL $SULO e to -- how many complaints do you 02:53:56 ·3· ·want to see in this pack (indicating)? 02:54:00 ·4· · · ·Q· · You are pointing to Exhibit 24, correct? 02:54:02 ·5· · · ·A· · Yes. 02:54:04 ·6· · · ·Q· · Okay.· Are you relying upon anything else 02:54:04 ·7· ·besides Exhibit 24, the e-mails produced by Kangaroo? 02:54:06 ·8· · · ·A· · We also use the counterfeit tool to submit 02:54:09 ·9· ·claims, as well, because Amazon has a link that you can 02:54:14 10· ·use to do it.· So besides this, there's that link as 02:54:16 11· ·well.· And I'm assuming, I haven't -- fat packet, I 02:54:19 12· ·haven't really gone through it, but I'm assuming all 02:54:24 13· ·the e-mails are there. 02:54:26 14· · · ·Q· · I'll represent to you that Kangaroo produced 02:54:27 15· ·the documents clipped at Exhibit 24.· And I'm asking 02:54:29 16· ·whether besides Exhibit 24 -- also, that I believe this 02:54:38 17· ·clip relates to the 10099 product.· Other portions, 02:54:42 18· ·which I'll be happy to mark -- they are not quite as 02:54:48 19· ·thick -- represent e-mails on the three other products. 02:54:53 20· ·But turning just to this exhibit, you know, 24, and the 02:54:57 21· ·10099 product, other than Exhibit 24, can you 02:55:00 22· ·identify -- and the -- well, other than Exhibit 24, can 02:55:06 23· ·you identify any documentary evidence that Kangaroo has 02:55:10 24· ·to support its allegation that Amazon has willfully 02:55:15 25· ·infringed Kangaroo's rights? 02:55:19 $FH +HPDQL $SULO azon 02:55:30 ·3· ·continued infringing Kangaroo's rights after the 02:55:34 ·4· ·complaint was filed or after Kangaroo gave notice to 02:55:38 ·5· ·Amazon on any of these four products? 02:55:42 ·6· · · ·A· · Outside of this exhibit, correct?· Outside of 02:55:44 ·7· ·Exhibit 24? 02:55:46 ·8· · · ·Q· · Correct. 02:55:47 ·9· · · ·A· · I -- I can't say. 02:55:48 10· · · ·Q· · Okay.· And to perhaps possibly save some time, 02:55:49 11· ·is -- is that testimony correct?· For all of the 02:55:57 12· ·allegations of willfulness by Amazon in this complaint, 02:56:00 13· ·do you have any evidence to -- so for the other 02:56:03 14· ·products, as well, for trademark, as well, do you -- 02:56:07 15· ·can you identify for me any evidence that Amazon has 02:56:09 16· ·willfully infringed any rights of Kangaroo since the 02:56:12 17· ·beginning of time? 02:56:17 18· · · ·A· · With the exception of Exhibit 24? 02:56:19 19· · · ·Q· · Correct, with the exception of Exhibit 24 and 02:56:22 20· ·other e-mails that Kangaroo has produced. 02:56:24 21· · · ·A· · Again, I'm going to refer to the copyright 02:56:28 22· ·claims that we've filed via the tool and not heard 02:56:33 23· ·back.· We've opened cases within Amazon, and no avail. 02:56:36 24· · · ·Q· · When you say "no avail," Exhibit 24 shows 02:56:42 25· ·plenty of avail. 02:56:46 $FH +HPDQL $SULO. 02:56:47 ·2· · · ·Q· · BY MR. GERINGER:· There are lots of 02:56:48 ·3· ·deactivations, right? 02:56:49 ·4· · · ·A· · Sure.· So I -- 02:56:51 ·5· · · ·Q· · Did I say 22?· I meant Exhibit 24. 02:56:51 ·6· · · ·A· · I mean, in the sense of Amazon actually 02:56:53 ·7· ·selling on our listings. 02:56:57 ·8· · · ·Q· · If Amazon does obtain Kangaroo product from 02:57:00 ·9· ·any channel, it's free to sell it, right? 02:57:03 10· · · ·A· · Sure. 02:57:06 11· · · ·Q· · You're aware, for example, like we produced 02:57:07 12· ·one -- one invoice.· There was a company called 02:57:11 13· ·TWTDREAM that is one of the vendors to Amazon, and they 02:57:14 14· ·had bought some product from Kangaroo. 02:57:19 15· · · ·A· · 20 units. 02:57:21 16· · · ·Q· · Yeah, 20 units of the 10099? 02:57:22 17· · · ·A· · Uh-huh. 02:57:24 18· · · ·Q· · Directly from Kangaroo? 02:57:25 19· · · ·A· · Yes. 02:57:26 20· · · ·Q· · Do you know where they got their other units? 02:57:27 21· · · ·A· · I'm unaware. 02:57:29 22· · · ·Q· · Has Kangaroo sought damages from Amazon for 02:57:31 23· ·Amazon's sale of units of 10099 acquired from TWTDREAM? 02:57:35 24· · · ·A· · Yes. 02:57:40 25· · · ·Q· · Exhibit 25. 02:58:01 $FH +HPDQL $SULO ents 03:15:41 ·4· ·which you can identify to me as evidence of -- in 03:15:45 ·5· ·support of Kangaroo's allegations of willful 03:15:51 ·6· ·infringement by Amazon? 03:15:53 ·7· · · ·A· · This seems like all of it. 03:15:55 ·8· · · ·Q· · Returning to the complaint, if you look at 03:15:57 ·9· ·paragraph 36, this paragraph states, "The FBA service 03:16:26 10· ·and Amazon regulation of sales allow Amazon to control 03:16:37 11· ·the PDP, product listing, price, and delivery." 03:16:41 12· · · · · · My question is, what evidence can you identify 03:16:46 13· ·to me that Amazon controls the price of any of the 03:16:49 14· ·products sold by third parties on Amazon? 03:16:55 15· · · ·A· · So again, going back to that buy box issue, 03:16:59 16· ·that obviously exists when the price is too high.· So 03:17:04 17· ·they control it that way, right?· But on the low end, 03:17:06 18· ·generally what we mean by that is, that when Amazon 03:17:10 19· ·comes on a page, they don't want to give anybody else 03:17:12 20· ·the buy box so they drop the price until no one can 03:17:14 21· ·match that price.· So it works in both ways. 03:17:17 22· · · ·Q· · Okay.· Anything else you can add to that? 03:17:22 23· · · ·A· · No. 03:17:23 24· · · ·Q· · Okay.· On paragraph 41, there's an allegation 03:17:25 25· ·that, "Amazon knowingly and willfully advertised and 03:17:30 $FH +HPDQL $SULO arks and the KANGAROO word mark, including PDPs for 03:17:42 ·3· ·the emoji beach balls and the flamingo pool float." 03:17:46 ·4· · · · · · Can you identify for me any documents, 03:17:49 ·5· ·including any on the table before you, that support the 03:17:53 ·6· ·allegations of paragraph 41, that Amazon knowingly and 03:17:58 ·7· ·willfully advertised and sold counterfeit goods? 03:18:04 ·8· · · ·A· · I'm sure I can go through this emoji beach 03:18:07 ·9· ·ball and find something that Am- -- that we've written 03:18:09 10· ·to Amazon claiming that they are willfully -- 03:18:12 11· · · ·Q· · You are pointing to Exhibits 24 and 26, 03:18:17 12· ·correct? 03:18:20 13· · · ·A· · Somewhere in there.· I'm sure there's 03:18:20 14· ·something in there. 03:18:22 15· · · ·Q· · All right.· So other than those e-mails in 24 03:18:23 16· ·and 26, anything to support this allegation regarding 03:18:25 17· ·emoji beach ball? 03:18:27 18· · · ·A· · Again, we -- we -- we went through the 03:18:27 19· ·counterfeit ones, submitted allegations there, and we 03:18:30 20· ·probably opened some cases around it, so -- 03:18:32 21· · · ·Q· · And that would be since the complaint? 03:18:34 22· · · ·A· · Since, during, before, I'm not sure. 03:18:36 23· · · ·Q· · Well, before, have you -- 03:18:40 24· · · ·A· · Before for sure, yeah. 03:18:44 25· · · ·Q· · Can you -- I mean, is there additional 03:18:45 $FH +HPDQL $SULO ingo pool float?· Any 03:18:52 ·4· ·evidence that a flamingo pool float is at issue in this 03:18:56 ·5· ·case? 03:19:01 ·6· · · ·A· · Not that I'm aware of. 03:19:01 ·7· · · ·Q· · Okay.· And on paragraph 42, again, what -- is 03:19:04 ·8· ·there any evidence you can identify or point me to as 03:19:20 ·9· ·support for the allegations in paragraph 42 other than 03:19:24 10· ·the e-mails we have identified in Exhibits 24 and 26? 03:19:27 11· · · ·A· · I know there's several cases opened up in the 03:19:33 12· ·case log of Amazon for that particular problem.· And 03:19:36 13· ·that's the only thing outside of the pieces of paper 03:19:39 14· ·sitting on my desk and the copyright tool. 03:19:42 15· · · ·Q· · And this is the Rhode Island Novelty company 03:19:45 16· ·12-piece balloons, correct? 03:19:48 17· · · ·A· · 12-piece beach balls. 03:19:49 18· · · ·Q· · 12-piece beach balls? 03:19:52 19· · · ·A· · Yes.· Correct.· I don't think they make an 03:19:56 20· ·emoji balloon. 03:19:59 21· · · ·Q· · And paragraph 43, can you identify any 03:20:03 22· ·evidence that Amazon intends to mislead 03:20:07 23· ·customers/consumers into falsely believing that the 03:20:14 24· ·Amazon listed emoji beach ball products originated from 03:20:19 25· ·Kangaroo? 03:20:27 $FH +HPDQL $SULO ean, merging the two pages together is 03:20:27 ·2· ·pretty much exactly that. 03:20:31 ·3· · · ·Q· · That Amazon intended to mislead consumers into 03:20:33 ·4· ·thinking those -- you are saying that for the -- you 03:20:37 ·5· ·are saying that Rhode Island Novelty beach balls were 03:20:41 ·6· ·sold off of the 10099 detail page, and that -- that's 03:20:44 ·7· ·the evidence that Kangaroo points to for Amazon 03:20:50 ·8· ·intending to mislead the consumers? 03:20:55 ·9· · · · · · MR. GRIMM:· Form. 03:21:01 10· · · ·Q· · BY MR. GERINGER:· I'd be happy to hear any 03:21:04 11· ·evidence including the e-mails that have been, you 03:21:06 12· ·know, produced by Kangaroo.· But any other evidence 03:21:09 13· ·which Kangaroo wishes to point to as supporting an 03:21:13 14· ·allegation of intentionally misleading customers? 03:21:17 15· · · ·A· · I mean, that's -- that's probably the biggest 03:21:20 16· ·out of them, and I'm sure there's more stuff in these 03:21:24 17· ·packets.· And outside of that, I doubt there is 03:21:27 18· ·anything. 03:21:29 19· · · ·Q· · Can you think why would Amazon want to mislead 03:21:29 20· ·customers?· Isn't that a counterproductive practice in 03:21:33 21· ·the retail world generally? 03:21:37 22· · · · · · MR. GRIMM:· Form. 03:21:38 23· · · · · · THE WITNESS:· Generally, yeah, but at the same 03:21:39 24· ·time, like, hey, I'm a -- I'm a -- I am a -- a buyer on 03:21:41 25· ·the retail team, and I want to make a quick buck and 03:21:44 $FH +HPDQL $SULO y goals, so what am I going to do?· I'm going to 03:21:47 ·2· ·figure out a way of doing it, right?· And hey, these 03:21:51 ·3· ·look just like that, so let me merge the detail page. 03:21:54 ·4· ·Those are $3, and I can't buy these and they are 03:21:54 ·5· ·selling for $13.· ·Oh, man, this is the perfect thing 03:21:57 ·6· ·to buy.· And if I remember correctly, they wouldn't 03:21:59 ·7· ·split the ASIN because the retail team had done it, and 03:22:03 ·8· ·whatever the retail team does trumps what sellers 03:22:06 ·9· ·submit as changes to detail pages. 03:22:10 10· · · · · · So if the retail team does something, it's 03:22:12 11· ·almost -- it's not reversible.· There's been so many 03:22:15 12· ·times where the retail team has made changes to our 03:22:20 13· ·product pages, and we have to fight tooth and nail to 03:22:23 14· ·get that resolved. 03:22:26 15· · · ·Q· · Well, who owns the product pages? 03:22:27 16· · · ·A· · Amazon.· But that's not the point.· The point 03:22:29 17· ·is that consumers are being misled because Amazon made 03:22:34 18· ·a decision to incorrectly merge those product pages for 03:22:37 19· ·whatever reason. 03:22:40 20· · · ·Q· · You say consumers are being misled, present 03:22:41 21· ·tense.· Did you misspeak? 03:22:44 22· · · ·A· · I'm saying in this -- in this case, right. 03:22:45 23· · · ·Q· · You are saying that at one time consumers were 03:22:47 24· ·misled? 03:22:51 25· · · ·A· · Sorry.· English is my second language. 03:22:52 $FH +HPDQL $SULO at all.· What's your 03:22:55 ·2· ·first language? 03:22:56 ·3· · · ·A· · Hindi. 03:22:57 ·4· · · ·Q· · Your English is excellent, by the way, so I 03:22:58 ·5· ·did not catch that -- 03:22:58 ·6· · · ·A· · I'm born in America. 03:22:58 ·7· · · ·Q· · -- for a moment. 03:22:59 ·8· · · · · · But it -- is there any -- I mean, you spoke 03:23:02 ·9· ·about present tense, and I just want to be clear. I 03:23:04 10· ·mean, the allegations are that Amazon -- in paragraph 03:23:07 11· ·42, the allegations are that Amazon -- 03:23:12 12· · · ·A· · I say that not particularly just for this. 03:23:14 13· ·I'm saying that a week ago I had a deal with a case for 03:23:16 14· ·a different product where I couldn't change the title 03:23:20 15· ·to the appropriate -- to the appropriate title because 03:23:22 16· ·the retail team had made a change.· The point is that 03:23:28 17· ·the retail team, their content trumps even the 03:23:31 18· ·manufacturer's content.· That's just the experience 03:23:34 19· ·I've had.· It's present and it's past. 03:23:42 20· · · ·Q· · And Kangaroo seeks to avoid competition with 03:23:46 21· ·Amazon on any of its listings, correct? 03:23:56 22· · · · · · MR. GRIMM:· Form, foundation. 03:23:58 23· · · · · · THE WITNESS:· It's -- it's not necessarily the 03:23:59 24· ·competition.· It's we -- we like making sure the 03:24:05 25· ·consumer has a great experience.· And I know Amazon 03:24:08 $FH +HPDQL $SULO er or us. 03:24:20 ·5· · · ·Q· · BY MR. GERINGER:· Let's look at paragraph 83 03:24:24 ·6· ·of the complaint, Cook Exhibit 8.· This paragraph and 03:24:43 ·7· ·the several that follow, paragraphs 83 through, let's 03:24:57 ·8· ·say, 86, let's take those together.· Do you know what 03:25:04 ·9· ·these -- what, quote, counterfeiter, unquote, this -- 03:25:06 10· ·these paragraphs refer to? 03:25:11 11· · · ·A· · It was several of them, and I think including 03:25:12 12· ·Amazon. 03:25:18 13· · · ·Q· · Okay.· Is -- is the product referred to in 03:25:19 14· ·paragraph 83 the same product that's on Cook schedule 03:25:29 15· ·9?· By that I mean schedule 9 to the Cook report. 03:25:33 16· · · ·A· · I believe so. 03:25:39 17· · · ·Q· · So do the numbers on schedule 9 reflect that 03:26:00 18· ·Kangaroo was refunded $7,000? 03:26:16 19· · · ·A· · I -- I don't believe that the gap is in there. 03:26:19 20· ·The 4,000 is not in there, but I think the 7,000 is 03:26:26 21· ·accounted for in there. 03:26:30 22· · · ·Q· · Please explain.· I -- I'm looking at the 03:26:33 23· ·$29,000 figure on the Cook report, and I'm trying to 03:26:35 24· ·understand how, if at all, it's been calculated with 03:26:37 25· ·reference to the numbers in paragraphs 85 and 86 of the 03:26:41 $FH +HPDQL $SULO azon.com, Inc.,) 8) Defendant.) 9 ____________________________) 10 11 12 13 14 VIDEOTAPED 30(b)(6) DEPOSITION OF KANGAROO MANUFACTURING, INC. AND PERSONAL DEPOSITION OF 15 (JUSTIN LIGERI) 16 April 20, 2018 9:19 a.m. 17 Tempe, Arizona 18 19 20 21 22 23 AtkinsonBaker, Inc. Court Reporters Prepared by: 24 (800) 288-3376 Marcella Daughtry, RPR www.depo.com Arizona CR No. 50623 25 FILE NO. AC03BDF 93 71 1 basically made my company somebody who sold unsafe 2 stuff for children with my name on it. 3 Q Kangaroo is alleging that Amazon infringed 4 Kangaroo's copyrights in the 12-piece -- strike that. 5 Let's look at Exhibit 21. It's in your stack. 6 A My trademark is with this (indicating). 7 Exhibit 21 is here? 8 Q Yeah, it's in that. It should be fairly in 9 there in the stack. 10 A I don't know. I mean, I do have to use the 11 restroom at some point if you're -- I can go -- 12 Q Well, let me just state first on that count -- 13 A No, no, take your time. I can do another one. 14 I just don't want to find these. 15 Q Mr. Ligeri, if you want to take a break at any 16 time today, just ask. 17 A Okay. No, I can go a few more minutes before 18 I use the bathroom. 19 Q Let's look at Exhibit 21 which I've identified 20 for you. Can you identify that? Do you recognize it? 21 A It looks like a copyright registration. 22 Q And what -- copyright registration for what? 23 A These are for our designs of our emoji beach 24 balls. 25 Q The designs that are on the 10099 product? 93 72 1 A Correct. 2 Q And Kangaroo is alleging that Amazon's 3 infringed that Kangaroo copyright? 4 A I believe so. 5 Q Do you know who took the photos of that 6 Kangaroo copyright, by the way? 7 A I don't know which photographer took the 8 photos offhand, but I can get that information. 9 Q Do you -- somebody you hire? 10 A Yeah, absolutely. 11 Q What kind of photographers do you hire? 12 A Professionals. 13 Q But who are the candidates who might be the 14 photographers who took those photos? 15 A It's not just the photos. It's also the 16 artwork -- 17 MR. GRIMM: Form. 18 THE WITNESS: -- that -- that our team 19 designed as these beach balls. 20 Q BY MR. GERINGER: Sure. I'm just asking first 21 about the photos, Mr. Ligeri. The photos that are 22 shown in Exhibit 21, can you tell me who possibly took 23 those photos? 24 MR. GRIMM: Counsel, are you asking him in his 25 personal capacity or as a 30(b)(6)? 93 132 1 hand you -- I'm sorry. Excuse me? You need to use the 2 restroom? 3 A No, I do, but I can wait. I thought you -- 4 Q Let's do it now. 5 A Are you sure? 6 Q This is a decent breaking time for a short 7 break if you need one, a personal break. 8 THE VIDEOGRAPHER: Off the record at 9 11:51 a.m. 10 (The deposition was at recess from 11:51 a.m. 11 to 12:09 p.m.) 12 (Deposition Exhibits 38 through 40 were marked 13 for identification.) 14 THE VIDEOGRAPHER: We are on the record at 15 12:09 p.m. 16 Q BY MR. GERINGER: Mr. Ligeri, just to put on 17 the record some things we were discussing in the 18 presence of your counsel over the break. Are you aware 19 of what Kangaroo's claim for its damages are in this 20 case? 21 A I'm not right now. 22 Q Hypothetically, if it were less than a quarter 23 million dollars, would you agree it's not reasonable 24 for either side to spend half a million dollars or a 25 million dollars each in attorneys' fees -- 93 133 1 A I don't believe -- 2 Q -- to pursue that claim? 3 MR. GRIMM: Form, foundation. 4 THE WITNESS: A quarter million dollars, not 5 even -- not even my -- my time invested in it is worth 6 more than that. There's a lot more I'm going after 7 than just your sales of beach balls. I mean, this is 8 relationships with customers that don't trust me 9 anymore. This is also the end users who have gotten 10 counterfeit product that may never buy in the long 11 term, brand harm of my company. There's -- there's 12 obviously -- there's statutory. We can even go into 13 punitive damages. There's, you know, my actual lost 14 sales. I mean, there's going to be at least $300,000 15 on -- on that, and plus the product that I bought. 16 I put this at -- you know, like I said, when I 17 add up the -- you know, the long-term brand harm at 5 18 million, am I willing to take, you know -- you know, 19 much, much, much less than that today to not fight? 20 Absolutely. You make a great point. You know what I 21 mean? So if you want to make an offer that has at 22 least six zeroes, then, you know, I will entertain 23 anything with six zeroes. 24 Q BY MR. GERINGER: Are you aware of what 25 damages your expert has opined to? 93 134 1 A I believe that the expert from what you've 2 told me has discussed just the pure financial damage of 3 a lost sale on Amazon. I don't think he took into 4 account, though, there's our cost is not Amazon's cost 5 on the product. So because Amazon bought counterfeits 6 at a higher price, that doesn't mean that I would -- I 7 would buy the real one at a lower price. 8 So if you made $300,000 worth of sales, that's 9 $300,000 in lost revenue minus, you know, the $2 it 10 cost to make these, right? So that would be about a 11 quarter of a million right there. That's not counting 12 my purchases off Amazon. That's not counting my 13 refunds to sellers. That's not counting future lost 14 sales. That's not counting legal fees. That's not 15 counting expert fees, and that's not counting brand 16 harm. So if you want to call it all a million two 17 right now, I'll take it and we'll call it a day. 18 Q Have you read Mr. Cook's report? 19 A Just skimmed it. 20 Q What do you recall seeing in Mr. Cook's 21 report? 22 A I don't remember. 23 Q Mr. Cook is your damages expert, however. 24 Mr. Cook is your -- 25 A Mr. Cook is a damages expert, and his report 93 135 1 is about one issue. 2 Q If you look at Exhibit 4 of the Cook packet, 3 page 5, last sentence. 4 A Oh, 4. Is this it? Yeah, okay. 5 Q Exhibit 4 -- what is Exhibit 4? 6 A The Navigant. Okay, and it's page 5, you 7 said? 8 Q Yes. So Exhibit 4, that's the Cook report, 9 right, in this case? 10 A Yes. 11 Q That's Kangaroo's damages expert's report? 12 A Yes. 13 Q And what's the last line on page 5? 14 A "Using the ASIN database described, I was able 15 to identify sales revenue generated by Amazon from 16 sales of the Accused Products, which includes 17 $289,128." 18 So that's 1 of 12 issues, is 289, and I agree 19 with him on that. And you can add insurance for less, 20 and you can add in my removals, and you can add in my 21 purchases on Amazon, and you can add in my refunds to 22 sellers, and you can add in the long-term loss of -- of 23 sales relationships, of sellers that don't want to give 24 me any money anymore based on this. You can add in the 25 30,000 customers that are never going to buy another 93 136 1 Kangaroo pool float in the future because they don't 2 trust me anymore and how that's gonna -- you know, when 3 we add all that in, I think we're -- a million two is 4 fair for now. I mean, obviously if we spend another 5 500 on legal, it's going to go up, but... 6 Q Aside from the question of attorneys' fees, 7 Mr. Ligeri, can you point to any of those items you 8 just discussed in Exhibit 4 to the Cook deposition? 9 A I don't believe he's gotten to that -- to that 10 level of his -- his report yet. I mean, there's more 11 to talk about. And I might not use him to discuss 12 brand. I might get an expert in branding. You know, I 13 mean, he's very good with numbers. He knows how to use 14 a calculator really well, but I might get an expert in 15 brands. 16 Q If you look at Schedule 7 to the Cook report. 17 A Matter of fact, Ken, let's -- Tim, let's get 18 a -- an expert that's a real expert in brand -- in 19 brands for -- for the next portion. 20 7 is your terms and agreement again? 21 Q Mr. Ligeri, no, it's Schedule 7. 22 A Oh, Schedule 7. 23 Q Of the Cook report. 24 A Where is that? 25 Q It's still in Exhibit 4. 93 93 93 ZŽǁ >ĂďĞůƐ ^Ƶŵ ŽĨ KƌĚĞƌĞĚ ^Ƶŵ ŽĨ ZĞĐĞŝǀĞĚ ϮϬϭϲ ϳϯϮϬ ϮϳϮϯ ŵĂnjŽŶ ZĞƚĂŝů ϳϯϮϬ ϮϳϮϯ K ^< ϳϯϮϬ ϮϳϮϯ ϮϬϭϳ ϰϲϲϯϮ ϭϯϴϳϭ ŵĂnjŽŶ ZĞƚĂŝů ϰϲϲϯϮ ϭϯϴϳϭ K ^< ϯϬϳϲϴ ϭϳϰϲ dtd Z ϭϱϴϲϰ ϭϮϭϮϱ 'ƌĂŶĚ dŽƚĂů ϱϯϵϱϮ ϭϲϱϵϰ 93 DͲ< E' ZKKϬϬϬϬϭϭϰϲͺ KE&/ Ed/ > ddKZE z^Ζ z ^ KE>z͘džůƐdž Ͳ ^ƵŵŵĂƌLJ Ͳ WĂŐĞ ϭ ŽĨ ϭ WK sĞŶĚŽƌ WK dLJƉĞ & KƌĚĞƌĞĚ ŽŶĨŝƌŵĞĚ džƉĞĐƚĞĚ ĂŶĐĞůĞĚ ZĞĐĞŝǀĞĚ KƌĚĞƌ ĂƚĞ zĞĂƌ ϴyKϯϲ:' K ^< ŵĂnjŽŶ ZĞƚĂŝů sWϭ Ϯϰ Ϭ Ϭ Ϭ Ϭ ϲͬϮϬͬϮϬϭϲ ϮϬϭϲ ϯE<, & K ^< ŵĂnjŽŶ ZĞƚĂŝů sWϭ ϰϴ Ϭ Ϭ Ϭ Ϭ ϲͬϮϳͬϮϬϭϲ ϮϬϭϲ ϰ/>'ϳ^^h K ^< ŵĂnjŽŶ ZĞƚĂŝů sWϭ ϳϮ Ϭ Ϭ Ϭ Ϭ ϳͬϰͬϮϬϭϲ ϮϬϭϲ ϯZϵϭt:th K ^< ŵĂnjŽŶ ZĞƚĂŝů sWϭ ϭϯϮ Ϭ Ϭ Ϭ Ϭ ϳͬϭϭͬϮϬϭϲ ϮϬϭϲ ϯY ϱ,W K ^< ŵĂnjŽŶ ZĞƚĂŝů sWϭ ϭϯϮ ϱϭ ϱϭ ϴϭ ϱϭ ϳͬϭϴͬϮϬϭϲ ϮϬϭϲ ϰK<^ϴy^ K ^< ŵĂnjŽŶ ZĞƚĂŝů sWϭ ϭϰϰ ϭϰϰ ϭϰϰ ϭϰϰ ϭϰϰ ϴͬϴͬϮϬϭϲ ϮϬϭϲ ϳ D& &ϱ< K ^< ŵĂnjŽŶ ZĞƚĂŝů s'ϯ ϭϱϲ ϭϱϲ ϭϱϮ ϰ ϭϱϮ ϴͬϮϵͬϮϬϭϲ ϮϬϭϲ ϲ/ W> '& K ^< ŵĂnjŽŶ ZĞƚĂŝů sWϭ ϮϱϮ ϭϴϰ ϮϮϲ Ϭ ϮϱϮ ϵͬϱͬϮϬϭϲ ϮϬϭϲ Ϯ&E:Y< K K ^< ŵĂnjŽŶ ZĞƚĂŝů sWϭ ϲϳϮ Ϭ Ϭ Ϭ Ϭ ϵͬϭϮͬϮϬϭϲ ϮϬϭϲ ϱϱW<ϱ>: K ^< ŵĂnjŽŶ ZĞƚĂŝů ϴ ϵϲ Ϭ Ϭ Ϭ Ϭ ϵͬϭϵͬϮϬϭϲ ϮϬϭϲ ϯϲϲ&/:ϯW K ^< ŵĂnjŽŶ ZĞƚĂŝů ϴ ϳϬϴ Ϭ Ϭ Ϭ Ϭ ϵͬϮϲͬϮϬϭϲ ϮϬϭϲ ϳ: <> /y K ^< ŵĂnjŽŶ ZĞƚĂŝů ϴ ϭϳϳϲ Ϭ Ϭ Ϭ Ϭ ϭϬͬϯͬϮϬϭϲ ϮϬϭϲ ϳ >ϵ'hϲ K ^< ŵĂnjŽŶ ZĞƚĂŝů ϴ ϭϲϲϴ ϳϲϵ ϳϲϵ ϴϵϵ ϳϲϵ ϭϬͬϭϬͬϮϬϭϲ ϮϬϭϲ ϱDDϱϯZ, K ^< ŵĂnjŽŶ ZĞƚĂŝů ϴ ϴϰ ϴϰ Ϭ ϴϰ Ϭ ϭϭͬϳͬϮϬϭϲ ϮϬϭϲ ϱ,z << K ^< ŵĂnjŽŶ ZĞƚĂŝů ϴ ϭϭϬϰ ϭϭϬϰ ϭϭϬϯ ϭ ϭϭϬϯ ϭϮͬϱͬϮϬϭϲ ϮϬϭϲ Ϯ&/ϱ,<ϯK K ^< ŵĂnjŽŶ ZĞƚĂŝů ϴ ϭϮϬ ϭϮϬ ϭϮϬ Ϭ ϭϮϬ ϭϮͬϭϮͬϮϬϭϲ ϮϬϭϲ Ϯ ϱ ϯ K ^< ŵĂnjŽŶ ZĞƚĂŝů ϴ ϭϯϮ ϭϯϮ ϭϯϮ Ϭ ϭϯϮ ϭϮͬϭϵͬϮϬϭϲ ϮϬϭϲ ϴtsyϴYz K ^< ŵĂnjŽŶ ZĞƚĂŝů ϴ ϭϴϬ Ϭ Ϭ Ϭ Ϭ ϭͬϵͬϮϬϭϳ ϮϬϭϳ ϰϱ E &^ K ^< ŵĂnjŽŶ ZĞƚĂŝů ϴ ϰϮϬ ϰϮϬ ϰϮϬ Ϭ ϰϮϬ ϭͬϭϲͬϮϬϭϳ ϮϬϭϳ Ϯsϭϰϴ'ϰ> K ^< ŵĂnjŽŶ ZĞƚĂŝů ϴ ϵϲϬ Ϯϲϰ Ϯϲϰ Ϭ Ϯϲϰ ϭͬϮϯͬϮϬϭϳ ϮϬϭϳ ϭz Dh> K ^< ŵĂnjŽŶ ZĞƚĂŝů KEdϴ ϰϯϮ Ϭ ϭ Ϭ ϭ ϭͬϯϬͬϮϬϭϳ ϮϬϭϳ ϯ ^s'd K ^< ŵĂnjŽŶ ZĞƚĂŝů sWϭ ϲϯϲ Ϭ Ϭ Ϭ Ϭ ϭͬϯϬͬϮϬϭϳ ϮϬϭϳ ϰK ϱ<t&, K ^< ŵĂnjŽŶ ZĞƚĂŝů D tϮ ϯϳϮ Ϭ Ϭ Ϭ Ϭ ϭͬϯϬͬϮϬϭϳ ϮϬϭϳ ϰYD'WtYz K ^< ŵĂnjŽŶ ZĞƚĂŝů &dtϭ ϭϬϴ Ϭ Ϭ Ϭ Ϭ ϭͬϯϬͬϮϬϭϳ ϮϬϭϳ ϱϲ /ϳ/ K ^< ŵĂnjŽŶ ZĞƚĂŝů s'ϯ ϳϴϬ Ϭ Ϭ Ϭ Ϭ ϭͬϯϬͬϮϬϭϳ ϮϬϭϳ ϯϭWd&Ϯϳs K ^< ŵĂnjŽŶ ZĞƚĂŝů &dtϭ ϰϬϴ Ϯϴϴ Ϯϴϴ Ϭ Ϯϵϳ ϮͬϲͬϮϬϭϳ ϮϬϭϳ ϯzϭ ϭWYd K ^< ŵĂnjŽŶ ZĞƚĂŝů s'ϯ ϵϭϮ Ϭ Ϭ Ϭ Ϭ ϮͬϲͬϮϬϭϳ ϮϬϭϳ ϱ ZϵyϴY K ^< ŵĂnjŽŶ ZĞƚĂŝů KEdϴ ϱϰϬ Ϭ Ϭ Ϭ Ϭ ϮͬϲͬϮϬϭϳ ϮϬϭϳ ϱ<sd d^ K ^< ŵĂnjŽŶ ZĞƚĂŝů >dϮ ϭϴϬ Ϭ Ϭ Ϭ Ϭ ϮͬϲͬϮϬϭϳ ϮϬϭϳ ϳ>hZ y K ^< ŵĂnjŽŶ ZĞƚĂŝů D tϮ ϴϱϮ Ϭ Ϭ Ϭ Ϭ ϮͬϲͬϮϬϭϳ ϮϬϭϳ ϳK, sYϵs K ^< ŵĂnjŽŶ ZĞƚĂŝů sWϭ ϯϭϮ Ϭ Ϭ Ϭ Ϭ ϮͬϲͬϮϬϭϳ ϮϬϭϳ ϭ Y YyW: K ^< ŵĂnjŽŶ ZĞƚĂŝů ϴ ϵϳϮ Ϭ Ϭ Ϭ Ϭ ϮͬϭϯͬϮϬϭϳ ϮϬϭϳ ϭ ϱϭd z< K ^< ŵĂnjŽŶ ZĞƚĂŝů D tϮ ϱϲϰ Ϭ Ϭ Ϭ Ϭ ϮͬϭϯͬϮϬϭϳ ϮϬϭϳ ϰ> yW>'d K ^< ŵĂnjŽŶ ZĞƚĂŝů KEdϴ ϭϬϴ Ϭ Ϭ Ϭ Ϭ ϮͬϭϯͬϮϬϭϳ ϮϬϭϳ ϰZy Ks K ^< ŵĂnjŽŶ ZĞƚĂŝů s'ϯ ϯϬϬ Ϭ Ϭ Ϭ Ϭ ϮͬϭϯͬϮϬϭϳ ϮϬϭϳ Ϯϴ,>Wϲ K ^< ŵĂnjŽŶ ZĞƚĂŝů D tϮ ϭϮ Ϭ Ϭ Ϭ Ϭ ϮͬϮϬͬϮϬϭϳ ϮϬϭϳ ϰ>E:&ϯ z K ^< ŵĂnjŽŶ ZĞƚĂŝů s'ϯ ϭϬϴ Ϭ Ϭ Ϭ Ϭ ϮͬϮϬͬϮϬϭϳ ϮϬϭϳ ϱ/^DsY,W K ^< ŵĂnjŽŶ ZĞƚĂŝů >dϮ ϰϴ Ϭ Ϭ Ϭ Ϭ ϮͬϮϬͬϮϬϭϳ ϮϬϭϳ ϴϵϯt >ϴD K ^< ŵĂnjŽŶ ZĞƚĂŝů ϴ ϮϬϬϰ Ϭ Ϭ Ϭ Ϭ ϮͬϮϬͬϮϬϭϳ ϮϬϭϳ ϭ hϭKtt K ^< ŵĂnjŽŶ ZĞƚĂŝů ϴ ϮϬϬϰ Ϭ Ϭ Ϭ Ϭ ϮͬϮϳͬϮϬϭϳ ϮϬϭϳ ϯ DϴϴϭϭZ K ^< ŵĂnjŽŶ ZĞƚĂŝů KEdϴ ϯϲ Ϭ Ϭ Ϭ Ϭ ϮͬϮϳͬϮϬϭϳ ϮϬϭϳ ϱDzϯϰ<>/ K ^< ŵĂnjŽŶ ZĞƚĂŝů s'ϯ ϮϮϴ Ϭ Ϭ Ϭ Ϭ ϮͬϮϳͬϮϬϭϳ ϮϬϭϳ ϴ<ϵtϴ', K ^< ŵĂnjŽŶ ZĞƚĂŝů >dϮ ϴϰ Ϭ Ϭ Ϭ Ϭ ϮͬϮϳͬϮϬϭϳ ϮϬϭϳ ϱ& W>ϳ^ K ^< ŵĂnjŽŶ ZĞƚĂŝů KEdϴ ϯϲ Ϭ Ϭ Ϭ Ϭ ϯͬϲͬϮϬϭϳ ϮϬϭϳ ϱyϵϴ&Yϯs K ^< ŵĂnjŽŶ ZĞƚĂŝů ϴ ϮϭϳϮ Ϭ Ϭ Ϭ Ϭ ϯͬϲͬϮϬϭϳ ϮϬϭϳ ϳϱ>'Kh:D K ^< ŵĂnjŽŶ ZĞƚĂŝů s'ϯ ϳϮ Ϭ Ϭ Ϭ Ϭ ϯͬϲͬϮϬϭϳ ϮϬϭϳ ϭ'z' yϴ> K ^< ŵĂnjŽŶ ZĞƚĂŝů ϴ ϮϯϱϮ Ϭ Ϭ Ϭ Ϭ ϯͬϭϯͬϮϬϭϳ ϮϬϭϳ 93 ϲϵ& ϱ:&K K ^< ŵĂnjŽŶ ZĞƚĂŝů s'ϯ ϰϴ Ϭ Ϭ Ϭ Ϭ ϯͬϭϯͬϮϬϭϳ ϮϬϭϳ DͲ< E' ZKKϬϬϬϬϭϭϰϲͺ KE&/ Ed/ > ddKZE z^Ζ z ^ KE>z͘džůƐdž Ͳ ĂƚĂ Ͳ WĂŐĞ ϭ ŽĨ Ϯ WK sĞŶĚŽƌ WK dLJƉĞ & KƌĚĞƌĞĚ ŽŶĨŝƌŵĞĚ džƉĞĐƚĞĚ ĂŶĐĞůĞĚ ZĞĐĞŝǀĞĚ KƌĚĞƌ ĂƚĞ zĞĂƌ ϳϰEz^</' K ^< ŵĂnjŽŶ ZĞƚĂŝů KEdϴ ϴϰ Ϭ Ϭ Ϭ Ϭ ϯͬϭϯͬϮϬϭϳ ϮϬϭϳ ϯd dϱDh K ^< ŵĂnjŽŶ ZĞƚĂŝů s'ϯ ϭϮ ϭϮ ϭϮ Ϭ ϭϮ ϯͬϮϬͬϮϬϭϳ ϮϬϭϳ ϲ' s ϳY' K ^< ŵĂnjŽŶ ZĞƚĂŝů KEdϴ ϭϮ ϭϮ ϭϮ Ϭ ϭϮ ϯͬϮϬͬϮϬϭϳ ϮϬϭϳ ϲ>htE K ^< ŵĂnjŽŶ ZĞƚĂŝů ϴ ϲϲϬ ϳϮ ϳϮ Ϭ ϳϮ ϯͬϮϬͬϮϬϭϳ ϮϬϭϳ ϭ WϮϲ dtd Z ŵĂnjŽŶ ZĞƚĂŝů >dϮ ϭϴϳ ϭϴϳ ϭϴϳ Ϭ ϭϴϲ ϯͬϮϳͬϮϬϭϳ ϮϬϭϳ ϮtDϱϴsEs dtd Z ŵĂnjŽŶ ZĞƚĂŝů sWϭ ϯϵϳ ϯϵϳ ϯϵϵ Ϭ ϯϵϵ ϯͬϮϳͬϮϬϭϳ ϮϬϭϳ ϯ,WϯZ, dtd Z ŵĂnjŽŶ ZĞƚĂŝů ϴ ϴϭϲ ϴϭϲ Ϭ ϴϭϲ ϴϭϰ ϯͬϮϳͬϮϬϭϳ ϮϬϭϳ ϲ Z y>d dtd Z ŵĂnjŽŶ ZĞƚĂŝů &dtϭ ϳϰϱ ϳϰϱ ϳϮϬ Ϯϱ ϳϰϱ ϯͬϮϳͬϮϬϭϳ ϮϬϭϳ ϰtyh&ϱZ dtd Z ŵĂnjŽŶ ZĞƚĂŝů /E ϭ ϭϮ ϭϮ ϭϮ Ϭ ϭϮ ϯͬϮϴͬϮϬϭϳ ϮϬϭϳ ϰ,ϱ,ϳϰ ^ K ^< ŵĂnjŽŶ ZĞƚĂŝů ϴ ϰϬϴ ϰϬϴ ϭϴϵ Ϯϭϵ ϭϴϵ ϰͬϯͬϮϬϭϳ ϮϬϭϳ ϳ>s D&ϳz dtd Z ŵĂnjŽŶ ZĞƚĂŝů KEdϴ ϭϬϭϳ ϭϬϭϳ ϰϲϵ ϭϬϭϳ ϭϬϭϳ ϰͬϭϳͬϮϬϭϳ ϮϬϭϳ ϲ dϰ't dtd Z ŵĂnjŽŶ ZĞƚĂŝů KEdϴ ϭϲϭϬ ϭϲϭϬ ϭϱϱϵ ϭϱϭϬ ϭϰϰϰ ϰͬϮϯͬϮϬϭϳ ϮϬϭϳ ϮϰYϴ y,' dtd Z ŵĂnjŽŶ ZĞƚĂŝů sWϭ ϮϰϴϬ ϮϰϴϬ ϮϯϴϬ ϮϰϴϬ ϮϯϴϬ ϰͬϯϬͬϮϬϭϳ ϮϬϭϳ ϮEdϮWϵ' dtd Z ŵĂnjŽŶ ZĞƚĂŝů &dtϭ ϭ ϭ Ϭ ϭ ϭ ϰͬϯϬͬϮϬϭϳ ϮϬϭϳ ϰϱy&& &, K ^< ŵĂnjŽŶ ZĞƚĂŝů sWϭ ϭϮ Ϭ Ϭ Ϭ Ϭ ϱͬϭͬϮϬϭϳ ϮϬϭϳ ϱt>< ϮE K ^< ŵĂnjŽŶ ZĞƚĂŝů ϴ ϭϮϴϰ Ϭ Ϭ Ϭ Ϭ ϱͬϮϮͬϮϬϭϳ ϮϬϭϳ Ϯ^ ϭϴzE^ K ^< ŵĂnjŽŶ ZĞƚĂŝů ϴ ϯϲ Ϭ Ϭ Ϭ Ϭ ϱͬϮϵͬϮϬϭϳ ϮϬϭϳ ϭWKDd, K ^< ŵĂnjŽŶ ZĞƚĂŝů D tϮ ϭϮ Ϭ Ϭ Ϭ Ϭ ϲͬϱͬϮϬϭϳ ϮϬϭϳ ϯY&&y<ϵh K ^< ŵĂnjŽŶ ZĞƚĂŝů ϴ ϯϬϭϮ Ϭ Ϭ Ϭ Ϭ ϲͬϱͬϮϬϭϳ ϮϬϭϳ ϰKzϴd<'< K ^< ŵĂnjŽŶ ZĞƚĂŝů >dϮ ϮϱϮ Ϭ Ϭ Ϭ Ϭ ϲͬϱͬϮϬϭϳ ϮϬϭϳ ϱsWϲ:,ϳy K ^< ŵĂnjŽŶ ZĞƚĂŝů sWϭ ϱϳϲ Ϭ Ϭ Ϭ Ϭ ϲͬϱͬϮϬϭϳ ϮϬϭϳ ϳϱdϱ,&: K ^< ŵĂnjŽŶ ZĞƚĂŝů s'ϯ ϴϰ Ϭ Ϭ Ϭ Ϭ ϲͬϱͬϮϬϭϳ ϮϬϭϳ ϮϳE ZZϵ: dtd Z ŵĂnjŽŶ ZĞƚĂŝů KEdϴ ϭϮϳϲ ϭϮϳϲ ϭϮϳϰ ϱϮ ϭϮϳϰ ϲͬϭϮͬϮϬϭϳ ϮϬϭϳ ϯdϱW</ϱ& K ^< ŵĂnjŽŶ ZĞƚĂŝů ϴ ϯϮϱϮ Ϭ Ϭ Ϭ Ϭ ϲͬϭϮͬϮϬϭϳ ϮϬϭϳ ϱDϳ< Yϰ: K ^< ŵĂnjŽŶ ZĞƚĂŝů >dϮ ϭϯϮ Ϭ Ϭ Ϭ Ϭ ϲͬϭϮͬϮϬϭϳ ϮϬϭϳ ϳϯzsϵϳϯY dtd Z ŵĂnjŽŶ ZĞƚĂŝů sWϭ ϭϯϱ ϭϯϱ ϭϯϱ Ϭ ϭϯϲ ϲͬϭϮͬϮϬϭϳ ϮϬϭϳ ϭ:ϴ'ϰDY dtd Z ŵĂnjŽŶ ZĞƚĂŝů KEdϴ ϯϮϭ ϯϮϭ ϯϮϭ Ϭ ϯϮϭ ϲͬϭϵͬϮϬϭϳ ϮϬϭϳ ϭy'h:yy K ^< ŵĂnjŽŶ ZĞƚĂŝů ϴ ϮϱϵϮ ϰϴϬ ϰϳϵ ϭ ϰϳϵ ϲͬϭϵͬϮϬϭϳ ϮϬϭϳ ϭϲ>ϲ:W dtd Z ŵĂnjŽŶ ZĞƚĂŝů KEdϴ Ϯϰϭ Ϯϰϭ Ϯϰϭ Ϭ Ϯϰϭ ϲͬϮϭͬϮϬϭϳ ϮϬϭϳ ϮdKZ KD dtd Z ŵĂnjŽŶ ZĞƚĂŝů sWϭ Ϯϰϰϴ Ϯϰϰϴ ϵϵϳ ϭϰϱϭ ϮϰϬϴ ϲͬϮϲͬϮϬϭϳ ϮϬϭϳ ϭD/ ϱz d dtd Z ŵĂnjŽŶ ZĞƚĂŝů KEdϴ ϰϭϰϴ ϰϭϰϴ ϳϭϳ ϯϵϯϮ ϳϭϳ ϳͬϯͬϮϬϭϳ ϮϬϭϳ ϯss:^<dh dtd Z ŵĂnjŽŶ ZĞƚĂŝů &dtϭ ϯϬ ϯϬ ϯϬ Ϭ ϯϬ ϳͬϯͬϮϬϭϳ ϮϬϭϳ ϳ,W&ϴZ K ^< ŵĂnjŽŶ ZĞƚĂŝů ϴ ϭϬϴ Ϭ Ϭ Ϭ Ϭ ϴͬϳͬϮϬϭϳ ϮϬϭϳ 93 DͲ< E' ZKKϬϬϬϬϭϭϰϲͺ KE&/ Ed/ > ddKZE z^Ζ z ^ KE>z͘džůƐdž Ͳ ĂƚĂ Ͳ WĂŐĞ ϭ ŽĨ Ϯ 93 ĐŽŵŵ/Ě ƐƵďũĞĐƚ ĐƌĞĂƚŝŽŶ ĂƚĞ ƌĞƐŽůƵƚŝŽŶ ĂƚĞ ĐŽŵŵdĞdžƚ ƌĞƉůŝĞƐ ϯϳϯϴϰϱϭϬϴϵϱ ZŝŐŚƚƐ /ŶĨƌŝŶŐĞŵĞŶƚ Ͳ <ĂŶŐĂƌŽŽ dƵĞƐĚĂLJ͕ DĂLJ ϯϬ͕ ϮϬϭϳ ϭϮ͗ϯϴ WD ;W dͿ ĞĂƌ ŵĂnjŽŶ͕ DĂŶƵĨĂĐƚƵƌŝŶŐ Ͳ ŵŽũŝ hŶŝǀĞƌƐĞ͗ ϭϮΗ ŵŽũŝ /ŶĨůĂƚĂďůĞ ĞĂĐŚ ĂůůƐ / Ăŵ ǁƌŝƚŝŶŐ ŝŶ ƌĞĨĞƌĞŶĐĞ ƚŽ ^/E ϬϭϴϮt E Ͳ hW ͗ ϴϱϲϬϴϮϬϬϲϬϬϵ Ͳ <ĂŶŐĂƌŽŽ DĂŶƵĨĂĐƚƵƌŝŶŐ Ͳ ŵŽũŝ hŶŝǀĞƌƐĞ͗ ϭϮΗ ŵŽũŝ /ŶĨůĂƚĂďůĞ ĞĂĐŚ ĂůůƐ͕ ϭϮͲWĂĐŬ͘ ƚ ƐŽŵĞ ƉŽŝŶƚ͕ ƚŚĞ ƌĞƚĂŝů ƚĞĂŵ Ăƚ ŵĂnjŽŶ ĂƚƚƌŝďƵƚĞĚ Ă hW ŽĚĞ ŽĨ Ă ŵĂƚĞƌŝĂůŝƐƚŝĐĂůůLJ ĚŝĨĨĞƌĞŶƚ ŝƚĞŵ ŵĂĚĞ ďLJ Ă ĐŽŵƉĞƚŝƚŽƌ ͲͲ ZŚŽĚĞ /ƐůĂŶĚ EŽǀĞůƚLJ͘ dŚŝƐ ĐŽƵŶƚĞƌĨĞŝƚ ƉƌŽĚƵĐƚ ŚĂƐ ĚŝĨĨĞƌĞŶƚ ĚĞƐŝŐŶƐ͕ ĚŽĞƐŶΖƚ ŐŽ ƚŚƌŽƵŐŚ ŽƵƌ ƌŝŐŽƌŽƵƐ ƚĞƐƚŝŶŐ ĂŶĚ ĐŽŵƉůŝĂŶĐĞ ƐƚĂŶĚĂƌĚƐ͕ ĂŶĚ ŚĂƐ ƚŚĞ ŶŽnjnjůĞ ƚŽ ŝŶĨůĂƚĞ ƚŚĞ ďĞĂĐŚ ďĂůůƐ ŽŶ ƚŚĞ ƚŽƉ ƌĂƚŚĞƌ ƚŚĂŶ ƚŚĞ ďŽƚƚŽŵ ;ƚŚĞLJ ĨůŽĂƚ ƵƉƐŝĚĞ ĚŽǁŶͿ͘ ^ĞǀĞƌĂů ƚĞƐƚ ŽƌĚĞƌƐ ǁĞƌĞ ĐŽŶĚƵĐƚĞĚ ůĂƐƚ ŵŽŶƚŚ ĨƌŽŵ ƚŚĞ ƌĞƚĂŝů ŵĂnjŽŶ ƚĞĂŵ ;ƐŚŝƉƉĞĚ Θ ƐŽůĚ ďLJ ŵĂnjŽŶ͘ĐŽŵͿ ǁŚŝĐŚ ƌĞƐƵůƚĞĚ ŝŶ ƚŚĞ ƌĞĐĞŝƉƚ ŽĨ ĐŽƵŶƚĞƌĨĞŝƚ ŐŽŽĚƐ͘ dŚŝƐ ŝƚĞŵ ŝƐ ŶŽƚ Ă ĐŽŵŵŝŶŐůĞĚ ^/E͘ dŚŝƐ ƉƌŽĚƵĐƚ ŝƐ ŵĂĚĞ ďLJ <ĂŶŐĂƌŽŽ DĂŶƵĨĂĐƚƵƌŝŶŐ /ŶĐ͕ Ă ĐŽŵƉĂŶLJ ƚŚĂƚ / ƐŽůĞůLJ ŽǁŶ͘ / ĂůƐŽ ŽǁŶ ƚŚĞ ƌĞƚĂŝů ĐŽŵƉĂŶLJ ƚŚĂƚ ĐƌĞĂƚĞĚ ƚŚĞ ĚĞƚĂŝů ƉĂŐĞ ŽŶ 93 DͲ< E' ZKKϬϬϬϬϭϭϱϮͺ KE&/ Ed/ >͘džůƐdž Ͳ WĂŐĞ ϭ ŽĨ Ϯϳ ĐŽŵŵ/Ě ƐƵďũĞĐƚ ĐƌĞĂƚŝŽŶ ĂƚĞ ƌĞƐŽůƵƚŝŽŶ ĂƚĞ ĐŽŵŵdĞdžƚ ƌĞƉůŝĞƐ ϯϳϭϱϱϴϰϱϴϬϱ ZĞ͗ zŽƵƌ ŵĂnjŽŶ ŶƋƵŝƌLJ &ƌŝĚĂLJ͕ DĂLJ ϭϮ͕ ϮϬϭϳ ϭϭ͗ϰϱ D ;W dͿ ĞĂƌ ŵĂnjŽŶ͗ tĞ ǁƌŝƚĞ ƚŽ ĨŽůůŽǁ ƵƉ ƌĞŐĂƌĚŝŶŐ ƚŚŝƐ ƵŶƌĞƐŽůǀĞĚ ŝƐƐƵĞ ƌĞůĂƚŝŶŐ ƚŽ ^/E ϬϭϴϮt E ͘ Ɛ ŶŽƚĞĚ ďĞůŽǁ͕ ŵĂnjŽŶ ŚĂƐ ŵĞƌŐĞĚ ƚŚĞ hW ĐŽĚĞ ĨŽƌ Ă ŶŽŶͲŵĂƚĐŚŝŶŐ ƉƌŽĚƵĐƚ ƐŽůĚ ďLJ ZŚŽĚĞ /ƐůĂŶĚ EŽǀĞůƚLJ ŽŵƉĂŶLJ ;͍Z/E K͍Ϳ ǁŝƚŚ ƚŚĞ hW ĐŽĚĞ ĨŽƌ ŽƵƌ ĐůŝĞŶƚ͍Ɛ ďƌĂŶĚĞĚ ƉƌŽĚƵĐƚ ŽŶ ƚŚŝƐ ŝƚĞŵ ĚĞƚĂŝů ƉĂŐĞ͘ tĞ ŚĂǀĞ ĂƚƚĂĐŚĞĚ Ă ĐŽŵƉůĂŝŶƚ ƐƵďŵŝƚƚĞĚ ďLJ Z/E K ĂůƐŽ ĂƐŬŝŶŐ ƚŚĂƚ ƚŚĞŝƌ hW ĐŽĚĞ ďĞ ƵŶůŝŶŬĞĚ ĨƌŽŵ ƚŚĞ ŝƚĞŵ ĚĞƚĂŝů ƉĂŐĞ ĨŽƌ ŽƵƌ ĐůŝĞŶƚ͍Ɛ ƉƌŽĚƵĐƚ͘ dŚĞ ĐŽƌƌĞĐƚ hW ĐŽĚĞ ĨŽƌ ƚŚĞ ƉƌŽĚƵĐƚ ůŝƐƚĞĚ ŽŶ ƚŚŝƐ ŝƚĞŵ ĚĞƚĂŝů ƉĂŐĞ ŝƐ ϴϱϲϬϴϮϬϬϲϬϬϵ͘ dŚĞ hW ĐŽĚĞ ŽĨ ƚŚĞ Z/E K ƉƌŽĚƵĐƚ͕ ǁŚŝĐŚ ^,Kh> EKd ďĞ ůŝŶŬĞĚ ƚŽ ƚŚŝƐ ƉĂŐĞ ŝƐ ϬϵϳϭϯϴϴϰϮϭϱϮ͘ tĞ ĂŐĂŝŶ ƌĞƋƵĞƐƚ ƚŚĂƚ hW ĐŽĚĞ ϬϵϳϭϯϴϴϰϮϭϱϮ ďĞ ƵŶůŝŶŬĞĚ ĨƌŽŵ ƚŚĞ ŝƚĞŵ ĚĞƚĂŝů ƉĂŐĞ ĨŽƌ ^/E ϬϭϴϮt E ͘ LJ ůĞĂǀŝŶŐ ƚŚĞ Z/E K hW ĐŽĚĞ ůŝŶŬĞĚ ƚŽ ƚŚĞ ŝƚĞŵ ĚĞƚĂŝů ƉĂŐĞ ĨŽƌ <ĂŶŐĂƌŽŽ͍Ɛ ďƌĂŶĚĞĚ ƉƌŽĚƵĐƚ͕ ŵĂnjŽŶ ŝƐ ĐĂƵƐŝŶŐ ĐŽŶƐƵŵĞƌ ĐŽŶĨƵƐŝŽŶ ĂŶĚ ǀŝŽůĂƚŝŶŐ ďŽƚŚ ŵĂŶƵĨĂĐƚƵƌĞƌ͍Ɛ ůĞŐĂů ƌŝŐŚƚƐ͘ WůĞĂƐĞ ƌĞŵĞĚLJ ƚŚŝƐ ƉƌŽďůĞŵ ŝŵŵĞĚŝĂƚĞůLJ ƚŽ ƉƌŽƚĞĐƚ ĐƵƐƚŽŵĞƌƐ ĂŶĚ LJŽƵƌ ƐĞůůĞƌƐ ĂŶĚ ƚŽ ĂǀŽŝĚ ƚŚĞ ŶĞĞĚ ĨŽƌ ĨƵƌƚŚĞƌ ĂĐƚŝŽŶ ƚŽ ĐŽŵƉĞů Ă ĐŚĂŶŐĞ ŝŶ ƚŚĞ ůŝƐƚŝŶŐ͘ WůĞĂƐĞ K EKd ƌĞŵŽǀĞ ƚŚĞ ^/E ĨƌŽŵ ƚŚĞ ĐĂƚĂůŽŐ Žƌ ƌĞŵŽǀĞ ϯϯϲϰϳϰϳϵϳϲϱ Ϯ ^/E ^ĂŵĞ ƉƌŽĚƵĐƚ ^ƵŶĚĂLJ͕ ƵŐƵƐƚ Ϯϭ͕ ϮϬϭϲ ϯ͗ϱϮ WD ;W dͿ dŚƵƌƐĚĂLJ͕ ƵŐƵƐƚ Ϯϱ͕ ϮϬϭϲ ϵ͗ϱϱ D WůĞĂƐĞ ĚĞƐĐƌŝďĞ LJŽƵƌ ŝƐƐƵĞ͘ ;W dͿ / ǁĂŶƚ ƚŽ ŵĞƌŐĞ ^/E Ϭϭ//&ϯ,K ƚŽ ^/E Ϭϭ:Ϯ Zd:^ ĂŶĚ ƌĞƚĂŝŶ ^/E Ϭϭ:Ϯ Zd:^ ďĞĐĂƵƐĞ ƚŚĞLJ ĂƌĞ ƚŚĞ ƐĂŵĞ ƉƌŽĚƵĐƚ 93 DͲ< E' ZKKϬϬϬϬϭϭϱϮͺ KE&/ Ed/ >͘džůƐdž Ͳ WĂŐĞ Ϯ ŽĨ Ϯϳ ĐŽŵŵ/Ě ƐƵďũĞĐƚ ĐƌĞĂƚŝŽŶ ĂƚĞ ƌĞƐŽůƵƚŝŽŶ ĂƚĞ ĐŽŵŵdĞdžƚ ƌĞƉůŝĞƐ ϯϲϴϳϮϳϬϭϬϬϱ ZĞ͗ zŽƵƌ ŵĂnjŽŶ ŶƋƵŝƌLJ &ƌŝĚĂLJ͕ Ɖƌŝů Ϯϭ͕ ϮϬϭϳ ϭϭ͗Ϯϳ D ;W dͿ ^ĂƚƵƌĚĂLJ͕ Ɖƌŝů ϮϮ͕ ϮϬϭϳ ϭ͗ϰϰ D ĞĂƌ ŵĂnjŽŶ͗,ĞůůŽ͕ ;W dͿ dŚŝƐ ƉƌŽďůĞŵ ŚĂƐ ŶŽƚ ďĞĞŶ ƌĞƐŽůǀĞĚ͘ KŶĞ ƐĞůůĞƌ͕ ŵĂnjŽŶ͕ tĞ ƌĞǀŝĞǁĞĚ LJŽƵƌ ƌĞƉŽƌƚ ĂŶĚ ĐŽŶƚŝŶƵĞƐ ƚŽ ƐĞůů Ă ƉƌŽĚƵĐƚ ŽŶ ƚŚĞ ŝƚĞŵ ĚĞƚĂŝů ƉĂŐĞ ĨŽƌ ^/E ĚĞƚĞƌŵŝŶĞĚ ƚŚĂƚ ŝƚ ŝƐ ŝŶĐŽŵƉůĞƚĞ͘ ϬϭϴϮt E ƚŚĂƚ ĚŽĞƐ ŶŽƚ ŵĂƚĐŚ ƚŚĞ ƉĂŐĞ ĂŶĚ ŝƐ ĚŝĨĨĞƌĞŶƚ tĞ ĐĂŶŶŽƚ ƚĂŬĞ ĂĐƚŝŽŶ ŽŶ Žƌ ĨƌŽŵ ƚŚĞ ƉƌŽĚƵĐƚ ďĞŝŶŐ ƐŽůĚ ďLJ Ăůů ŽƚŚĞƌ ƐĞůůĞƌƐ͘ tĞ K EKd ĐŽŵƉůĞƚĞ ĂŶLJ ŽĨ LJŽƵƌ ƌĞƋƵĞƐƚƐ͘ ǁĂŶƚ ƚŚĞ ŝƚĞŵ ĚĞƚĂŝů ƉĂŐĞ ƌĞŵŽǀĞĚ͘ tĞ ŽŶůLJ ǁĂŶƚ ŵĂnjŽŶ ƚŽ WůĞĂƐĞ ƌĞƐƵďŵŝƚ LJŽƵƌ ƌĞƉŽƌƚ ǁŝƚŚ ƌĞŵŽǀĞ ƚŚĞ ŝƚĞŵ ƚŚĂƚ ĚŽĞƐ ŶŽƚ ŵĂƚĐŚ ĂŶĚ ĚŝƐĂƐƐŽĐŝĂƚĞ ŝƚƐ hW Ăůů ƚŚĞ ƌĞƋƵŝƌĞĚ ŝŶĨŽƌŵĂƚŝŽŶ ĂƐ ĐŽĚĞ ĨƌŽŵ ƚŚĞ ƉĂŐĞ͘ ůŝƐƚĞĚ ďĞůŽǁ͘ ϭ͘ dŚĞ ŝƚĞŵ ĚĞƚĂŝů ƉĂŐĞ ĨŽƌ ^/E ϬϭϴϮt E ǁĂƐ ĐƌĞĂƚĞĚ ďLJ ͲͲ ƐƚĂƚĞŵĞŶƚ ďLJ LJŽƵ ƚŚĂƚ LJŽƵ ĂŶ ĂƵƚŚŽƌŝnjĞĚ <ĂŶŐĂƌŽŽ ĚŝƐƚƌŝďƵƚŽƌ ĨŽƌŵĞƌůLJ ŬŶŽǁŶ ĂƐ ŚĂǀĞ Ă ŐŽŽĚͲĨĂŝƚŚ ďĞůŝĞĨ ƚŚĂƚ ƚŚĞ zĂŐŽŽnjŽŶ ĂŶĚ ŶŽǁ ŬŶŽǁŶ ĂƐ ^ǁŝŵŵŝŶŐ WŽŽů &ůŽĂƚƐ͕ ƐĞůůŝŶŐ ƵƐĞ ŽĨ ƚŚĞ ŝŶĨƌŝŶŐŝŶŐ ĐŽŶƚĞŶƚ ŝƐ ŶŽƚ ůĂǁĨƵů ƉƌŽĚƵĐƚ ŵĂŶƵĨĂĐƚƵƌĞĚ ďLJ <ĂŶŐĂƌŽŽ͘ ĂƵƚŚŽƌŝnjĞĚ ďLJ ƚŚĞ ƌŝŐŚƚƐ ŽǁŶĞƌ͕ ŝƚƐ ĂŐĞŶƚ͕ Žƌ ƚŚĞ ůĂǁ͘ Ϯ͘ dŚĞ hW ĐŽĚĞ ĂƐƐŝŐŶĞĚ ƚŽ ƚŚĞ ŝƚĞŵ ĚĞƚĂŝů ƉĂŐĞ ƵƐĞĚ ƚŽ ďĞ ƚŚĞ ĐŽƌƌĞĐƚ ĐŽĚĞ ĨŽƌ <ĂŶŐĂƌŽŽ͍Ɛ ĞŵŽũŝ ďĞĂĐŚ ďĂůů ƉƌŽĚƵĐƚ͗ ͲͲ ƐƚĂƚĞŵĞŶƚ ďLJ LJŽƵ͕ ŵĂĚĞ ƵŶĚĞƌ ϴϱϲϬϴϮϬϬϲϬϬϵ͘ ƉĞŶĂůƚLJ ŽĨ ƉĞƌũƵƌLJ͕ ƚŚĂƚ ƚŚĞ ΀ĂďŽǀĞ΁ ŝŶĨŽƌŵĂƚŝŽŶ ŝŶ LJŽƵƌ ŶŽƚŝĐĞ ŝƐ ϯ͘ ůů ŽĨ ƚŚĞ ƐĞůůĞƌƐ ŽŶ ƚŚĞ ƉĂŐĞ͕ ĞdžĐĞƉƚ ŵĂnjŽŶ͕ ĂƌĞ ƐĞůůŝŶŐ ĂĐĐƵƌĂƚĞ ĂŶĚ ƚŚĂƚ LJŽƵ ĂƌĞ ƚŚĞ ĂƵƚŚĞŶƚŝĐ <ĂŶŐĂƌŽŽ ďƌĂŶĚ ƉƌŽĚƵĐƚ ƚŚĂƚ ƚŚĞLJ ƉƵƌĐŚĂƐĞĚ ĨƌŽŵ ƌŝŐŚƚƐ ŽǁŶĞƌ Žƌ ĂƵƚŚŽƌŝnjĞĚ ƚŽ ĂĐƚ <ĂŶŐĂƌŽŽ͘ ^ĞůůĞƌƐ ^ǁŝŵŵŝŶŐ WŽŽů &ůŽĂƚƐ͕ ůŝƚnj ^ƚŽƌĞ͕ ďƐĂĚŐLJǁ ŽŶ ƚŚĞ ƌŝŐŚƚƐ ŽǁŶĞƌΖƐ ďĞŚĂůĨ͘ njdžďŚĂLJŝ͕ ZLJĂŶ d͘ ZŝĚůŽŶ͕ ϮϰŚƌƐ ĞĂůƐ͕ ŽĐŽ:ĂŵĞƐ͕ ^ƉůĞŶĚŝĚWƌŽĚƵĐƚƐ͕ ZĂŝŶĚƌŽƉŵĨŐ͕ zŽƵƌ ηϭ ^ŽƵƌĐĞ͕ ĂŶĚ KǀĞƌ dŚĞ ůů ŶŽƚŝĐĞƐ ŽĨ ŝŶƚĞůůĞĐƚƵĂů ƉƌŽƉĞƌƚLJ DŽŽŶ hŶůƚĚ ĂƌĞ Ăůů ĂƵƚŚŽƌŝnjĞĚ <ĂŶŐĂƌŽŽ ĚŝƐƚƌŝďƵƚŽƌƐ ƐĞůůŝŶŐ ƚŚĞ ŝŶĨƌŝŶŐĞŵĞŶƚ ŵƵƐƚ ŝŶĐůƵĚĞ͗ <ĂŶŐĂƌŽŽ ďƌĂŶĚĞĚ ƉƌŽĚƵĐƚ ƚŚĂƚ ŵĂƚĐŚĞƐ ƚŚĞ ŝƚĞŵ ĚĞƚĂŝů ƉĂŐĞ͘ ͲͲ dŚĞ ŶĂŵĞ ĂŶĚ ĞŵĂŝů ĂĚĚƌĞƐƐ ŽĨ ƚŚĞ ƉĞƌƐŽŶ ƐƵďŵŝƚƚŝŶŐ ƚŚĞ ŶŽƚŝĐĞ͕ 93 DͲ< E' ZKKϬϬϬϬϭϭϱϮͺ KE&/ Ed/ >͘džůƐdž Ͳ WĂŐĞ ϭϰ ŽĨ Ϯϳ ĐŽŵŵ/Ě ƐƵďũĞĐƚ ĐƌĞĂƚŝŽŶ ĂƚĞ ƌĞƐŽůƵƚŝŽŶ ĂƚĞ ĐŽŵŵdĞdžƚ ƌĞƉůŝĞƐ ϯϳϯϭϲϲϰϱϬϲϱ ZĞŐĂƌĚŝŶŐ ĐĂƐĞ Ϯϭϲϴϲϴϱϵϯϭ tĞĚŶĞƐĚĂLJ͕ DĂLJ Ϯϰ͕ ϮϬϭϳ ϰ͗ϰϱ WD ;W dͿ tĞĚŶĞƐĚĂLJ͕ DĂLJ Ϯϰ͕ ϮϬϭϳ ϱ͗ϯϴ WD tĞ ǁƌŝƚĞ ƚŽ ƌĞƋƵĞƐƚ ƚŚĂƚ ŵĂnjŽŶ ƌĞǀŝĞǁ ŝƚƐ ŝŶĐŽƌƌĞĐƚ ;W dͿ ĚĞƚĞƌŵŝŶĂƚŝŽŶ ƚŚĂƚ ƚŚĞ ĐƵƌƌĞŶƚ ƉƌŽĚƵĐƚ ŝĚĞŶƚŝĨŝĞƌ ϬϵϳϭϯϴϴϰϮϭϱϮ ŽŶ ^/E͗ ϬϭϴϮt E ŝƐ ƚŚĞ ĐŽƌƌĞĐƚ ŽŶĞ͘ /ƚ ŝƐ ŶŽƚ͘ ϭ͘ tĞ ĐƌĞĂƚĞĚ ŝƚĞŵ ĚĞƚĂŝů ƉĂŐĞ ĨŽƌ ^/E ϬϭϴϮt E ͘ Ϯ͘ dŚĞ hW ĐŽĚĞ ĂƐƐŝŐŶĞĚ ƚŽ ƚŚĞ ŝƚĞŵ ĚĞƚĂŝů ƉĂŐĞ ƵƐĞĚ ƚŽ ďĞ ƚŚĞ ĐŽƌƌĞĐƚ ĐŽĚĞ ĨŽƌ <ĂŶŐĂƌŽŽ͍Ɛ ĞŵŽũŝ ďĞĂĐŚ ďĂůů ƉƌŽĚƵĐƚ͗ ϴϱϲϬϴϮϬϬϲϬϬϵ͘ dŚĂƚ ŝƚĞŵ ďĞĂƌƐ ƚŚĞ <ĂŶŐĂƌŽŽ ďƌĂŶĚ ĂŶĚ ĨĞĂƚƵƌĞƐ <ĂŶŐĂƌŽŽ͍Ɛ ŽƌŝŐŝŶĂů ĐŽƉLJƌŝŐŚƚĞĚ ĂƌƚǁŽƌŬ͘ ϯ͘ hW ŶƵŵďĞƌ ϬϵϳϭϯϴϴϰϮϭϱϮ ŝƐ Ă ĚŝĨĨĞƌĞŶƚ ƉƌŽĚƵĐƚ ƐŽůĚ ďLJ Ă ĚŝĨĨĞƌĞŶƚ ĐŽŵƉĂŶLJ͘ /ƚ ŝƐ Ă ZŚŽƐĞ /ƐůĂŶĚ EŽǀĞůƚLJ ŽŵƉĂŶLJ ;Z/E KͿ ďƌĂŶĚĞĚ ƉƌŽĚƵĐƚ͕ ǁŚŝĐŚ ƵƐĞĚ ƚŽ ďĞ ^/E Ϭϭ:Ϯ Zd:^ ĂŶĚ ŝƐ ŶŽ ůŽŶŐĞƌ ĂǀĂŝůĂďůĞ͘ Z/E K ŚĂƐ ƐƵďŵŝƚƚĞĚ Ă ĐŽŵƉůĂŝŶƚ ƚŽ ŵĂnjŽŶ͕ ĐŽƉŝĞĚ ďĞůŽǁ͕ ĐŽŶĨŝƌŵŝŶŐ ƚŚĂƚ ŝƚƐ hW ŚĂƐ ŶŽǁ ďĞĞŶ ŝŶĐŽƌƌĞĐƚůLJ ĂĨĨŝůŝĂƚĞĚ ǁŝƚŚ ƚŚĞ ǁƌŽŶŐ ŝƚĞŵ ĚĞƚĂŝů ƉĂŐĞ ĂŶĚ ŝƐ ŶŽƚ ƚŚĞ ĐŽƌƌĞĐƚ ƉƌŽĚƵĐƚ ŝĚĞŶƚŝĨŝĞƌ ĨŽƌ ^/E͗ ϬϭϴϮt E ͘ ϱ͘ tĞ ďĞůŝĞǀĞ ƚŚĂƚ ŵĂnjŽŶ ǁŽƵůĚ ŶĞǀĞƌ ŝŶƚĞŶƚŝŽŶĂůůLJ ĐŽƵŶƚĞƌĨĞŝƚ ŐŽŽĚƐ͕ ďƵƚ ŝƚ ĂƉƉĞĂƌƐ ƚŚĂƚ ƐŽŵĞŽŶĞ ĂĐĐŝĚĞŶƚĂůůLJ ŵĞƌŐĞĚ ƚŚĞ hW ĐŽĚĞƐ ĨŽƌ ƚŚĞ <ĂŶŐĂƌŽŽ ĂŶĚ Z/E K ŝƚĞŵƐ͘ Ɛ Ă ƌĞƐƵůƚ͕ ŵĂnjŽŶ ŝƐ ƉƌŽǀŝĚŝŶŐ ĐŽŶƐƵŵĞƌƐ ǁŝƚŚ Ă ĚŝĨĨĞƌĞŶƚ ƉƌŽĚƵĐƚ ƚŚĂƚ ŝƐ ĨĂůƐĞůLJ ďƌĂŶĚĞĚ ĂŶĚ ĚŽĞƐ ŶŽƚ ŵĂƚĐŚ ƚŚĞ ŝƚĞŵ ĚĞƚĂŝů ƉĂŐĞ͘ 93 DͲ< E' ZKKϬϬϬϬϭϭϱϮͺ KE&/ Ed/ >͘džůƐdž Ͳ WĂŐĞ ϭϱ ŽĨ Ϯϳ ĐŽŵŵ/Ě ƐƵďũĞĐƚ ĐƌĞĂƚŝŽŶ ĂƚĞ ƌĞƐŽůƵƚŝŽŶ ĂƚĞ ĐŽŵŵdĞdžƚ ƌĞƉůŝĞƐ ϯϳϯϴϰϱϬϳϴϯϱ ZŝŐŚƚƐ /ŶĨƌŝŶŐĞŵĞŶƚ Ͳ <ĂŶŐĂƌŽŽ dƵĞƐĚĂLJ͕ DĂLJ ϯϬ͕ ϮϬϭϳ ϭϮ͗ϰϬ WD ;W dͿ tĞĚŶĞƐĚĂLJ͕ DĂLJ ϯϭ͕ ϮϬϭϳ ϰ͗ϯϳ D ĞĂƌ ŵĂnjŽŶ͕,ĞůůŽ͕ DĂŶƵĨĂĐƚƵƌŝŶŐ Ͳ ŵŽũŝ hŶŝǀĞƌƐĞ͗ ϭϮΗ ;W dͿ ŵŽũŝ /ŶĨůĂƚĂďůĞ ĞĂĐŚ ĂůůƐ / Ăŵ ǁƌŝƚŝŶŐ ŝŶ ƌĞĨĞƌĞŶĐĞ ƚŽ ^/E ϬϭϴϮt E Ͳ hW ͗ tĞ ƌĞǀŝĞǁĞĚ LJŽƵƌ ƌĞƉŽƌƚ ĂŶĚ ϴϱϲϬϴϮϬϬϲϬϬϵ Ͳ <ĂŶŐĂƌŽŽ ĚĞƚĞƌŵŝŶĞĚ ƚŚĂƚ ŝƚ ŝƐ ŝŶĐŽŵƉůĞƚĞ͘ DĂŶƵĨĂĐƚƵƌŝŶŐ Ͳ ŵŽũŝ hŶŝǀĞƌƐĞ͗ ϭϮΗ ŵŽũŝ /ŶĨůĂƚĂďůĞ ĞĂĐŚ tĞ ĐĂŶŶŽƚ ƚĂŬĞ ĂĐƚŝŽŶ ŽŶ Žƌ ĂůůƐ͕ ϭϮͲWĂĐŬ͘ ĐŽŵƉůĞƚĞ ĂŶLJ ŽĨ LJŽƵƌ ƌĞƋƵĞƐƚƐ͘ WůĞĂƐĞ ƌĞƐƵďŵŝƚ LJŽƵƌ ƌĞƉŽƌƚ ǁŝƚŚ ƚ ƐŽŵĞ ƉŽŝŶƚ͕ ƚŚĞ ƌĞƚĂŝů ƚĞĂŵ Ăƚ ŵĂnjŽŶ ĂƚƚƌŝďƵƚĞĚ Ă hW Ăůů ƚŚĞ ƌĞƋƵŝƌĞĚ ŝŶĨŽƌŵĂƚŝŽŶ ĂƐ ŽĚĞ ŽĨ Ă ůŝƐƚĞĚ ďĞůŽǁ͘ ŵĂƚĞƌŝĂůŝƐƚŝĐĂůůLJ ĚŝĨĨĞƌĞŶƚ ŝƚĞŵ ŵĂĚĞ ďLJ Ă ĐŽŵƉĞƚŝƚŽƌ ͲͲ ZŚŽĚĞ /ƐůĂŶĚ EŽǀĞůƚLJ͘ dŚŝƐ ĐŽƵŶƚĞƌĨĞŝƚ ƉƌŽĚƵĐƚ ŚĂƐ ĚŝĨĨĞƌĞŶƚ ĚĞƐŝŐŶƐ͕ ĚŽĞƐŶΖƚ ͲͲ /ĚĞŶƚŝĨŝĐĂƚŝŽŶ ŽĨ ƚŚĞ ŝŶƚĞůůĞĐƚƵĂů ŐŽ ƚŚƌŽƵŐŚ ƉƌŽƉĞƌƚLJ ƌŝŐŚƚ ĂƐƐĞƌƚĞĚ͕ ďLJ ŽƵƌ ƌŝŐŽƌŽƵƐ ƚĞƐƚŝŶŐ ĂŶĚ ĐŽŵƉůŝĂŶĐĞ ƐƚĂŶĚĂƌĚƐ͕ ĂŶĚ ŚĂƐ ƚŚĞ ƌĞŐŝƐƚƌĂƚŝŽŶ ŶƵŵďĞƌ͕ ŝĨ ĂƉƉůŝĐĂďůĞ͘ ŶŽnjnjůĞ ƚŽ ŝŶĨůĂƚĞ ƚŚĞ ďĞĂĐŚ ďĂůůƐ ŽŶ ƚŚĞ ƚŽƉ ƌĂƚŚĞƌ ƚŚĂŶ ƚŚĞ ďŽƚƚŽŵ ;ƚŚĞLJ ĨůŽĂƚ ͲͲ ƐƚĂƚĞŵĞŶƚ ďLJ LJŽƵ ƚŚĂƚ LJŽƵ ƵƉƐŝĚĞ ĚŽǁŶͿ͘ ^ĞǀĞƌĂů ƚĞƐƚ ŽƌĚĞƌƐ ǁĞƌĞ ĐŽŶĚƵĐƚĞĚ ůĂƐƚ ŵŽŶƚŚ ŚĂǀĞ Ă ŐŽŽĚͲĨĂŝƚŚ ďĞůŝĞĨ ƚŚĂƚ ƚŚĞ ĨƌŽŵ ƚŚĞ ƌĞƚĂŝů ƵƐĞ ŽĨ ƚŚĞ ŝŶĨƌŝŶŐŝŶŐ ĐŽŶƚĞŶƚ ŝƐ ŶŽƚ ŵĂnjŽŶ ƚĞĂŵ ;ƐŚŝƉƉĞĚ Θ ƐŽůĚ ďLJ ŵĂnjŽŶ͘ĐŽŵͿ ǁŚŝĐŚ ƌĞƐƵůƚĞĚ ĂƵƚŚŽƌŝnjĞĚ ďLJ ƚŚĞ ƌŝŐŚƚƐ ŽǁŶĞƌ͕ ŝƚƐ ŝŶ ƚŚĞ ƌĞĐĞŝƉƚ ŽĨ ĂŐĞŶƚ͕ Žƌ ƚŚĞ ůĂǁ͘ ĐŽƵŶƚĞƌĨĞŝƚ ŐŽŽĚƐ͘ dŚŝƐ ŝƚĞŵ ŝƐ ŶŽƚ Ă ĐŽŵŵŝŶŐůĞĚ ^/E͘ dŚŝƐ ƉƌŽĚƵĐƚ ŝƐ ŵĂĚĞ ďLJ <ĂŶŐĂƌŽŽ DĂŶƵĨĂĐƚƵƌŝŶŐ /ŶĐ͕ Ă ͲͲ ƐƚĂƚĞŵĞŶƚ ďLJ LJŽƵ͕ ŵĂĚĞ ƵŶĚĞƌ ĐŽŵƉĂŶLJ ƚŚĂƚ / ƐŽůĞůLJ ƉĞŶĂůƚLJ ŽĨ ƉĞƌũƵƌLJ͕ ƚŚĂƚ ƚŚĞ ΀ĂďŽǀĞ΁ ŽǁŶ͘ / ĂůƐŽ ŽǁŶ ƚŚĞ ƌĞƚĂŝů ĐŽŵƉĂŶLJ ƚŚĂƚ ĐƌĞĂƚĞĚ ƚŚĞ ĚĞƚĂŝů ƉĂŐĞ ŝŶĨŽƌŵĂƚŝŽŶ ŝŶ LJŽƵƌ ŶŽƚŝĐĞ ŝƐ ŽŶ ĂĐĐƵƌĂƚĞ ĂŶĚ ƚŚĂƚ LJŽƵ ĂƌĞ ƚŚĞ 93 DͲ< E' ZKKϬϬϬϬϭϭϱϮͺ KE&/ Ed/ >͘džůƐdž Ͳ WĂŐĞ ϭϲ ŽĨ Ϯϳ ĐŽŵŵ/Ě ƐƵďũĞĐƚ ĐƌĞĂƚŝŽŶ ĂƚĞ ƌĞƐŽůƵƚŝŽŶ ĂƚĞ ĐŽŵŵdĞdžƚ ƌĞƉůŝĞƐ ϯϳϯϴϰϱϭϯϳϭϱ ZŝŐŚƚƐ /ŶĨƌŝŶŐĞŵĞŶƚ Ͳ <ĂŶŐĂƌŽŽ dƵĞƐĚĂLJ͕ DĂLJ ϯϬ͕ ϮϬϭϳ ϭϮ͗ϯϴ WD ;W dͿ tĞĚŶĞƐĚĂLJ͕ DĂLJ ϯϭ͕ ϮϬϭϳ ϰ͗ϯϳ D ĞĂƌ ŵĂnjŽŶ͕,ĞůůŽ͕ DĂŶƵĨĂĐƚƵƌŝŶŐ Ͳ ŵŽũŝ hŶŝǀĞƌƐĞ͗ ϭϮΗ ;W dͿ ŵŽũŝ /ŶĨůĂƚĂďůĞ ĞĂĐŚ ĂůůƐ / Ăŵ ǁƌŝƚŝŶŐ ŝŶ ƌĞĨĞƌĞŶĐĞ ƚŽ ^/E ϬϭϴϮt E Ͳ hW ͗ tĞ ƌĞǀŝĞǁĞĚ LJŽƵƌ ƌĞƉŽƌƚ ĂŶĚ ϴϱϲϬϴϮϬϬϲϬϬϵ Ͳ <ĂŶŐĂƌŽŽ ĚĞƚĞƌŵŝŶĞĚ ƚŚĂƚ ŝƚ ŝƐ ŝŶĐŽŵƉůĞƚĞ͘ DĂŶƵĨĂĐƚƵƌŝŶŐ Ͳ ŵŽũŝ hŶŝǀĞƌƐĞ͗ ϭϮΗ ŵŽũŝ /ŶĨůĂƚĂďůĞ ĞĂĐŚ tĞ ĐĂŶŶŽƚ ƚĂŬĞ ĂĐƚŝŽŶ ŽŶ Žƌ ĂůůƐ͕ ϭϮͲWĂĐŬ͘ ĐŽŵƉůĞƚĞ ĂŶLJ ŽĨ LJŽƵƌ ƌĞƋƵĞƐƚƐ͘ WůĞĂƐĞ ƌĞƐƵďŵŝƚ LJŽƵƌ ƌĞƉŽƌƚ ǁŝƚŚ ƚ ƐŽŵĞ ƉŽŝŶƚ͕ ƚŚĞ ƌĞƚĂŝů ƚĞĂŵ Ăƚ ŵĂnjŽŶ ĂƚƚƌŝďƵƚĞĚ Ă hW Ăůů ƚŚĞ ƌĞƋƵŝƌĞĚ ŝŶĨŽƌŵĂƚŝŽŶ ĂƐ ŽĚĞ ŽĨ Ă ůŝƐƚĞĚ ďĞůŽǁ͘ ŵĂƚĞƌŝĂůŝƐƚŝĐĂůůLJ ĚŝĨĨĞƌĞŶƚ ŝƚĞŵ ŵĂĚĞ ďLJ Ă ĐŽŵƉĞƚŝƚŽƌ ͲͲ ZŚŽĚĞ /ƐůĂŶĚ EŽǀĞůƚLJ͘ dŚŝƐ ĐŽƵŶƚĞƌĨĞŝƚ ƉƌŽĚƵĐƚ ŚĂƐ ĚŝĨĨĞƌĞŶƚ ĚĞƐŝŐŶƐ͕ ĚŽĞƐŶΖƚ ͲͲ /ĚĞŶƚŝĨŝĐĂƚŝŽŶ ŽĨ ƚŚĞ ŝŶƚĞůůĞĐƚƵĂů ŐŽ ƚŚƌŽƵŐŚ ƉƌŽƉĞƌƚLJ ƌŝŐŚƚ ĂƐƐĞƌƚĞĚ͕ ďLJ ŽƵƌ ƌŝŐŽƌŽƵƐ ƚĞƐƚŝŶŐ ĂŶĚ ĐŽŵƉůŝĂŶĐĞ ƐƚĂŶĚĂƌĚƐ͕ ĂŶĚ ŚĂƐ ƚŚĞ ƌĞŐŝƐƚƌĂƚŝŽŶ ŶƵŵďĞƌ͕ ŝĨ ĂƉƉůŝĐĂďůĞ͘ ŶŽnjnjůĞ ƚŽ ŝŶĨůĂƚĞ ƚŚĞ ďĞĂĐŚ ďĂůůƐ ŽŶ ƚŚĞ ƚŽƉ ƌĂƚŚĞƌ ƚŚĂŶ ƚŚĞ ďŽƚƚŽŵ ;ƚŚĞLJ ĨůŽĂƚ ͲͲ ƐƚĂƚĞŵĞŶƚ ďLJ LJŽƵ ƚŚĂƚ LJŽƵ ƵƉƐŝĚĞ ĚŽǁŶͿ͘ ^ĞǀĞƌĂů ƚĞƐƚ ŽƌĚĞƌƐ ǁĞƌĞ ĐŽŶĚƵĐƚĞĚ ůĂƐƚ ŵŽŶƚŚ ŚĂǀĞ Ă ŐŽŽĚͲĨĂŝƚŚ ďĞůŝĞĨ ƚŚĂƚ ƚŚĞ ĨƌŽŵ ƚŚĞ ƌĞƚĂŝů ƵƐĞ ŽĨ ƚŚĞ ŝŶĨƌŝŶŐŝŶŐ ĐŽŶƚĞŶƚ ŝƐ ŶŽƚ ŵĂnjŽŶ ƚĞĂŵ ;ƐŚŝƉƉĞĚ Θ ƐŽůĚ ďLJ ŵĂnjŽŶ͘ĐŽŵͿ ǁŚŝĐŚ ƌĞƐƵůƚĞĚ ĂƵƚŚŽƌŝnjĞĚ ďLJ ƚŚĞ ƌŝŐŚƚƐ ŽǁŶĞƌ͕ ŝƚƐ ŝŶ ƚŚĞ ƌĞĐĞŝƉƚ ŽĨ ĂŐĞŶƚ͕ Žƌ ƚŚĞ ůĂǁ͘ ĐŽƵŶƚĞƌĨĞŝƚ ŐŽŽĚƐ͘ dŚŝƐ ŝƚĞŵ ŝƐ ŶŽƚ Ă ĐŽŵŵŝŶŐůĞĚ ^/E͘ dŚŝƐ ƉƌŽĚƵĐƚ ŝƐ ŵĂĚĞ ďLJ <ĂŶŐĂƌŽŽ DĂŶƵĨĂĐƚƵƌŝŶŐ /ŶĐ͕ Ă ͲͲ ƐƚĂƚĞŵĞŶƚ ďLJ LJŽƵ͕ ŵĂĚĞ ƵŶĚĞƌ ĐŽŵƉĂŶLJ ƚŚĂƚ / ƐŽůĞůLJ ƉĞŶĂůƚLJ ŽĨ ƉĞƌũƵƌLJ͕ ƚŚĂƚ ƚŚĞ ΀ĂďŽǀĞ΁ ŽǁŶ͘ / ĂůƐŽ ŽǁŶ ƚŚĞ ƌĞƚĂŝů ĐŽŵƉĂŶLJ ƚŚĂƚ ĐƌĞĂƚĞĚ ƚŚĞ ĚĞƚĂŝů ƉĂŐĞ ŝŶĨŽƌŵĂƚŝŽŶ ŝŶ LJŽƵƌ ŶŽƚŝĐĞ ŝƐ ŽŶ ĂĐĐƵƌĂƚĞ ĂŶĚ ƚŚĂƚ LJŽƵ ĂƌĞ ƚŚĞ 93 DͲ< E' ZKKϬϬϬϬϭϭϱϮͺ KE&/ Ed/ >͘džůƐdž Ͳ WĂŐĞ ϭϳ ŽĨ Ϯϳ ĐŽŵŵ/Ě ƐƵďũĞĐƚ ĐƌĞĂƚŝŽŶ ĂƚĞ ƌĞƐŽůƵƚŝŽŶ ĂƚĞ ĐŽŵŵdĞdžƚ ƌĞƉůŝĞƐ ϯϳϯϴϰϱϬϲϱϳϱ ZŝŐŚƚƐ /ŶĨƌŝŶŐĞŵĞŶƚ Ͳ <ĂŶŐĂƌŽŽ dƵĞƐĚĂLJ͕ DĂLJ ϯϬ͕ ϮϬϭϳ ϭϮ͗ϯϴ WD ;W dͿ tĞĚŶĞƐĚĂLJ͕ DĂLJ ϯϭ͕ ϮϬϭϳ ϰ͗ϰϲ D ĞĂƌ ŵĂnjŽŶ͕,ĞůůŽ͕ DĂŶƵĨĂĐƚƵƌŝŶŐ Ͳ ŵŽũŝ hŶŝǀĞƌƐĞ͗ ϭϮΗ ;W dͿ ŵŽũŝ /ŶĨůĂƚĂďůĞ ĞĂĐŚ ĂůůƐ / Ăŵ ǁƌŝƚŝŶŐ ŝŶ ƌĞĨĞƌĞŶĐĞ ƚŽ ^/E ϬϭϴϮt E Ͳ hW ͗ tĞ ƌĞǀŝĞǁĞĚ LJŽƵƌ ƌĞƉŽƌƚ ĂŶĚ ϴϱϲϬϴϮϬϬϲϬϬϵ Ͳ <ĂŶŐĂƌŽŽ ĚĞƚĞƌŵŝŶĞĚ ƚŚĂƚ ŝƚ ŝƐ ŝŶĐŽŵƉůĞƚĞ͘ DĂŶƵĨĂĐƚƵƌŝŶŐ Ͳ ŵŽũŝ hŶŝǀĞƌƐĞ͗ ϭϮΗ ŵŽũŝ /ŶĨůĂƚĂďůĞ ĞĂĐŚ WůĞĂƐĞ ƌĞƐƵďŵŝƚ LJŽƵƌ ƌĞƉŽƌƚ ǁŝƚŚ ĂůůƐ͕ ϭϮͲWĂĐŬ͘ Ăůů ƚŚĞ ƌĞƋƵŝƌĞĚ ŝŶĨŽƌŵĂƚŝŽŶ ĂƐ ůŝƐƚĞĚ ďĞůŽǁ͘ ƚ ƐŽŵĞ ƉŽŝŶƚ͕ ƚŚĞ ƌĞƚĂŝů ƚĞĂŵ Ăƚ ŵĂnjŽŶ ĂƚƚƌŝďƵƚĞĚ Ă hW ŽĚĞ ŽĨ Ă ͲͲ ƐƚĂƚĞŵĞŶƚ ďLJ LJŽƵ ƚŚĂƚ LJŽƵ ŵĂƚĞƌŝĂůŝƐƚŝĐĂůůLJ ĚŝĨĨĞƌĞŶƚ ŝƚĞŵ ŵĂĚĞ ďLJ Ă ĐŽŵƉĞƚŝƚŽƌ ͲͲ ZŚŽĚĞ ŚĂǀĞ Ă ŐŽŽĚͲĨĂŝƚŚ ďĞůŝĞĨ ƚŚĂƚ ƚŚĞ /ƐůĂŶĚ ƵƐĞ ŽĨ ƚŚĞ ŝŶĨƌŝŶŐŝŶŐ ĐŽŶƚĞŶƚ ŝƐ ŶŽƚ EŽǀĞůƚLJ͘ dŚŝƐ ĐŽƵŶƚĞƌĨĞŝƚ ƉƌŽĚƵĐƚ ŚĂƐ ĚŝĨĨĞƌĞŶƚ ĚĞƐŝŐŶƐ͕ ĚŽĞƐŶΖƚ ĂƵƚŚŽƌŝnjĞĚ ďLJ ƚŚĞ ƌŝŐŚƚƐ ŽǁŶĞƌ͕ ŝƚƐ ŐŽ ƚŚƌŽƵŐŚ ĂŐĞŶƚ͕ Žƌ ƚŚĞ ůĂǁ͘ ŽƵƌ ƌŝŐŽƌŽƵƐ ƚĞƐƚŝŶŐ ĂŶĚ ĐŽŵƉůŝĂŶĐĞ ƐƚĂŶĚĂƌĚƐ͕ ĂŶĚ ŚĂƐ ƚŚĞ ŶŽnjnjůĞ ƚŽ ͲͲ ƐƚĂƚĞŵĞŶƚ ďLJ LJŽƵ͕ ŵĂĚĞ ƵŶĚĞƌ ŝŶĨůĂƚĞ ƚŚĞ ďĞĂĐŚ ďĂůůƐ ŽŶ ƚŚĞ ƚŽƉ ƌĂƚŚĞƌ ƚŚĂŶ ƚŚĞ ďŽƚƚŽŵ ;ƚŚĞLJ ƉĞŶĂůƚLJ ŽĨ ƉĞƌũƵƌLJ͕ ƚŚĂƚ ƚŚĞ ĨůŽĂƚ ŝŶĨŽƌŵĂƚŝŽŶ ŝŶ LJŽƵƌ ŶŽƚŝĐĞ ŝƐ ƵƉƐŝĚĞ ĚŽǁŶͿ͘ ^ĞǀĞƌĂů ƚĞƐƚ ŽƌĚĞƌƐ ǁĞƌĞ ĐŽŶĚƵĐƚĞĚ ůĂƐƚ ŵŽŶƚŚ ĂĐĐƵƌĂƚĞ ĂŶĚ ƚŚĂƚ LJŽƵ ĂƌĞ ƚŚĞ ĨƌŽŵ ƚŚĞ ƌĞƚĂŝů ƌŝŐŚƚƐ ŽǁŶĞƌ Žƌ ĂƵƚŚŽƌŝnjĞĚ ƚŽ ĂĐƚ ŵĂnjŽŶ ƚĞĂŵ ;ƐŚŝƉƉĞĚ Θ ƐŽůĚ ďLJ ŵĂnjŽŶ͘ĐŽŵͿ ǁŚŝĐŚ ƌĞƐƵůƚĞĚ ŽŶ ƚŚĞ ƌŝŐŚƚƐ ŽǁŶĞƌΖƐ ďĞŚĂůĨ͘ ŝŶ ƚŚĞ ƌĞĐĞŝƉƚ ŽĨ ĐŽƵŶƚĞƌĨĞŝƚ ŐŽŽĚƐ͘ dŚŝƐ ŝƚĞŵ ŝƐ ŶŽƚ Ă ĐŽŵŵŝŶŐůĞĚ ^/E͘ ůů ŶŽƚŝĐĞƐ ŽĨ ŝŶƚĞůůĞĐƚƵĂů ƉƌŽƉĞƌƚLJ ŝŶĨƌŝŶŐĞŵĞŶƚ ŵƵƐƚ ŝŶĐůƵĚĞ͗ dŚŝƐ ƉƌŽĚƵĐƚ ŝƐ ŵĂĚĞ ďLJ <ĂŶŐĂƌŽŽ DĂŶƵĨĂĐƚƵƌŝŶŐ /ŶĐ͕ Ă ͲͲ dŚĞ ŶĂŵĞ ĂŶĚ ĞŵĂŝů ĂĚĚƌĞƐƐ ŽĨ ĐŽŵƉĂŶLJ ƚŚĂƚ / ƐŽůĞůLJ ƚŚĞ ƉĞƌƐŽŶ ƐƵďŵŝƚƚŝŶŐ ƚŚĞ ŶŽƚŝĐĞ͕ ŽǁŶ͘ / ĂůƐŽ ŽǁŶ ƚŚĞ ƌĞƚĂŝů ĐŽŵƉĂŶLJ ƚŚĂƚ ĐƌĞĂƚĞĚ ƚŚĞ ĚĞƚĂŝů ƉĂŐĞ ƉůƵƐ ĂŶLJ ĂĚĚŝƚŝŽŶĂů ĐŽŶƚĂĐƚ ĚĞƚĂŝůƐ͘ ŽŶ ͲͲ dŚĞ ƌŝŐŚƚƐ ŽǁŶĞƌ ŶĂŵĞ͕ ŝĨ ƚŚĞ 93 DͲ< E' ZKKϬϬϬϬϭϭϱϮͺ KE&/ Ed/ >͘džůƐdž Ͳ WĂŐĞ ϭϴ ŽĨ Ϯϳ ĐŽŵŵ/Ě ƐƵďũĞĐƚ ĐƌĞĂƚŝŽŶ ĂƚĞ ƌĞƐŽůƵƚŝŽŶ ĂƚĞ ĐŽŵŵdĞdžƚ ƌĞƉůŝĞƐ ϯϳϯϴϰϱϬϰϵϮϱ ZŝŐŚƚƐ /ŶĨƌŝŶŐĞŵĞŶƚ Ͳ <ĂŶŐĂƌŽŽ dƵĞƐĚĂLJ͕ DĂLJ ϯϬ͕ ϮϬϭϳ ϭϮ͗ϯϴ WD ;W dͿ tĞĚŶĞƐĚĂLJ͕:ƵŶĞ ϳ͕ ϮϬϭϳ ϱ͗Ϭϭ D ĞĂƌ ŵĂnjŽŶ͕,ĞůůŽ͕ DĂŶƵĨĂĐƚƵƌŝŶŐ Ͳ ŵŽũŝ hŶŝǀĞƌƐĞ͗ ϭϮΗ ;W dͿ ŵŽũŝ /ŶĨůĂƚĂďůĞ ĞĂĐŚ ĂůůƐ / Ăŵ ǁƌŝƚŝŶŐ ŝŶ ƌĞĨĞƌĞŶĐĞ ƚŽ ^/E ϬϭϴϮt E Ͳ hW ͗ tĞ ƌĞǀŝĞǁĞĚ LJŽƵƌ ƌĞƉŽƌƚ ĂŶĚ ϴϱϲϬϴϮϬϬϲϬϬϵ Ͳ <ĂŶŐĂƌŽŽ ĚĞƚĞƌŵŝŶĞĚ ƚŚĂƚ ŝƚ ŝƐ ŝŶĐŽŵƉůĞƚĞ͘ DĂŶƵĨĂĐƚƵƌŝŶŐ Ͳ ŵŽũŝ hŶŝǀĞƌƐĞ͗ ϭϮΗ ŵŽũŝ /ŶĨůĂƚĂďůĞ ĞĂĐŚ WůĞĂƐĞ ƌĞƐƵďŵŝƚ LJŽƵƌ ƌĞƉŽƌƚ ǁŝƚŚ ĂůůƐ͕ ϭϮͲWĂĐŬ͘ Ăůů ƚŚĞ ƌĞƋƵŝƌĞĚ ŝŶĨŽƌŵĂƚŝŽŶ ĂƐ ůŝƐƚĞĚ ďĞůŽǁ͘ ƚ ƐŽŵĞ ƉŽŝŶƚ͕ ƚŚĞ ƌĞƚĂŝů ƚĞĂŵ Ăƚ ŵĂnjŽŶ ĂƚƚƌŝďƵƚĞĚ Ă hW ŽĚĞ ŽĨ Ă ͲͲ ƐƚĂƚĞŵĞŶƚ ďLJ LJŽƵ ƚŚĂƚ LJŽƵ ŵĂƚĞƌŝĂůŝƐƚŝĐĂůůLJ ĚŝĨĨĞƌĞŶƚ ŝƚĞŵ ŵĂĚĞ ďLJ Ă ĐŽŵƉĞƚŝƚŽƌ ͲͲ ZŚŽĚĞ ŚĂǀĞ Ă ŐŽŽĚͲĨĂŝƚŚ ďĞůŝĞĨ ƚŚĂƚ ƚŚĞ /ƐůĂŶĚ ƵƐĞ ŽĨ ƚŚĞ ŝŶĨƌŝŶŐŝŶŐ ĐŽŶƚĞŶƚ ŝƐ ŶŽƚ EŽǀĞůƚLJ͘ dŚŝƐ ĐŽƵŶƚĞƌĨĞŝƚ ƉƌŽĚƵĐƚ ŚĂƐ ĚŝĨĨĞƌĞŶƚ ĚĞƐŝŐŶƐ͕ ĚŽĞƐŶΖƚ ĂƵƚŚŽƌŝnjĞĚ ďLJ ƚŚĞ ƌŝŐŚƚƐ ŽǁŶĞƌ͕ ŝƚƐ ŐŽ ƚŚƌŽƵŐŚ ĂŐĞŶƚ͕ Žƌ ƚŚĞ ůĂǁ͘ ŽƵƌ ƌŝŐŽƌŽƵƐ ƚĞƐƚŝŶŐ ĂŶĚ ĐŽŵƉůŝĂŶĐĞ ƐƚĂŶĚĂƌĚƐ͕ ĂŶĚ ŚĂƐ ƚŚĞ ŶŽnjnjůĞ ƚŽ ͲͲ ƐƚĂƚĞŵĞŶƚ ďLJ LJŽƵ͕ ŵĂĚĞ ƵŶĚĞƌ ŝŶĨůĂƚĞ ƚŚĞ ďĞĂĐŚ ďĂůůƐ ŽŶ ƚŚĞ ƚŽƉ ƌĂƚŚĞƌ ƚŚĂŶ ƚŚĞ ďŽƚƚŽŵ ;ƚŚĞLJ ƉĞŶĂůƚLJ ŽĨ ƉĞƌũƵƌLJ͕ ƚŚĂƚ ƚŚĞ ĨůŽĂƚ ŝŶĨŽƌŵĂƚŝŽŶ ŝŶ LJŽƵƌ ŶŽƚŝĐĞ ŝƐ ƵƉƐŝĚĞ ĚŽǁŶͿ͘ ^ĞǀĞƌĂů ƚĞƐƚ ŽƌĚĞƌƐ ǁĞƌĞ ĐŽŶĚƵĐƚĞĚ ůĂƐƚ ŵŽŶƚŚ ĂĐĐƵƌĂƚĞ ĂŶĚ ƚŚĂƚ LJŽƵ ĂƌĞ ƚŚĞ ĨƌŽŵ ƚŚĞ ƌĞƚĂŝů ƌŝŐŚƚƐ ŽǁŶĞƌ Žƌ ĂƵƚŚŽƌŝnjĞĚ ƚŽ ĂĐƚ ŵĂnjŽŶ ƚĞĂŵ ;ƐŚŝƉƉĞĚ Θ ƐŽůĚ ďLJ ŵĂnjŽŶ͘ĐŽŵͿ ǁŚŝĐŚ ƌĞƐƵůƚĞĚ ŽŶ ƚŚĞ ƌŝŐŚƚƐ ŽǁŶĞƌΖƐ ďĞŚĂůĨ͘ ŝŶ ƚŚĞ ƌĞĐĞŝƉƚ ŽĨ ĐŽƵŶƚĞƌĨĞŝƚ ŐŽŽĚƐ͘ dŚŝƐ ŝƚĞŵ ŝƐ ŶŽƚ Ă ĐŽŵŵŝŶŐůĞĚ ^/E͘ ͲͲ zŽƵ ĚŝĚ ŶŽƚ ƉƌŽǀŝĚĞ Ă ƚƌĂĚĞŵĂƌŬ ƌĞŐŝƐƚƌĂƚŝŽŶ ŶƵŵďĞƌ͘ zŽƵƌ dŚŝƐ ƉƌŽĚƵĐƚ ŝƐ ŵĂĚĞ ďLJ <ĂŶŐĂƌŽŽ DĂŶƵĨĂĐƚƵƌŝŶŐ /ŶĐ͕ Ă ƚƌĂĚĞŵĂƌŬ ŵƵƐƚ ďĞ ŝŶ ΖƌĞŐŝƐƚĞƌĞĚΖ ĐŽŵƉĂŶLJ ƚŚĂƚ / ƐŽůĞůLJ ƐƚĂƚƵƐ͘ ŽǁŶ͘ / ĂůƐŽ ŽǁŶ ƚŚĞ ƌĞƚĂŝů ĐŽŵƉĂŶLJ ƚŚĂƚ ĐƌĞĂƚĞĚ ƚŚĞ ĚĞƚĂŝů ƉĂŐĞ ŽŶ ůů ŶŽƚŝĐĞƐ ŽĨ ŝŶƚĞůůĞĐƚƵĂů ƉƌŽƉĞƌƚLJ 93 DͲ< E' ZKKϬϬϬϬϭϭϱϮͺ KE&/ Ed/ >͘džůƐdž Ͳ WĂŐĞ ϭϵ ŽĨ Ϯϳ ĐŽŵŵ/Ě ƐƵďũĞĐƚ ĐƌĞĂƚŝŽŶ ĂƚĞ ƌĞƐŽůƵƚŝŽŶ ĂƚĞ ĐŽŵŵdĞdžƚ ƌĞƉůŝĞƐ ϯϳϯϴϰϱϬϲϰϬϱ ZŝŐŚƚƐ /ŶĨƌŝŶŐĞŵĞŶƚ Ͳ <ĂŶŐĂƌŽŽ dƵĞƐĚĂLJ͕ DĂLJ ϯϬ͕ ϮϬϭϳ ϭϮ͗ϯϴ WD ;W dͿ dŚƵƌƐĚĂLJ͕:ƵŶĞ ϴ͕ ϮϬϭϳ ϭ͗Ϯϯ WD ĞĂƌ ŵĂnjŽŶ͕ DĂŶƵĨĂĐƚƵƌŝŶŐ Ͳ ŵŽũŝ hŶŝǀĞƌƐĞ͗ ϭϮΗ ;W dͿ ŵŽũŝ /ŶĨůĂƚĂďůĞ ĞĂĐŚ ĂůůƐ / Ăŵ ǁƌŝƚŝŶŐ ŝŶ ƌĞĨĞƌĞŶĐĞ ƚŽ ^/E ϬϭϴϮt E Ͳ hW ͗ ϴϱϲϬϴϮϬϬϲϬϬϵ Ͳ <ĂŶŐĂƌŽŽ DĂŶƵĨĂĐƚƵƌŝŶŐ Ͳ ŵŽũŝ hŶŝǀĞƌƐĞ͗ ϭϮΗ ŵŽũŝ /ŶĨůĂƚĂďůĞ ĞĂĐŚ ĂůůƐ͕ ϭϮͲWĂĐŬ͘ ƚ ƐŽŵĞ ƉŽŝŶƚ͕ ƚŚĞ ƌĞƚĂŝů ƚĞĂŵ Ăƚ ŵĂnjŽŶ ĂƚƚƌŝďƵƚĞĚ Ă hW ŽĚĞ ŽĨ Ă ŵĂƚĞƌŝĂůŝƐƚŝĐĂůůLJ ĚŝĨĨĞƌĞŶƚ ŝƚĞŵ ŵĂĚĞ ďLJ Ă ĐŽŵƉĞƚŝƚŽƌ ͲͲ ZŚŽĚĞ /ƐůĂŶĚ EŽǀĞůƚLJ͘ dŚŝƐ ĐŽƵŶƚĞƌĨĞŝƚ ƉƌŽĚƵĐƚ ŚĂƐ ĚŝĨĨĞƌĞŶƚ ĚĞƐŝŐŶƐ͕ ĚŽĞƐŶΖƚ ŐŽ ƚŚƌŽƵŐŚ ŽƵƌ ƌŝŐŽƌŽƵƐ ƚĞƐƚŝŶŐ ĂŶĚ ĐŽŵƉůŝĂŶĐĞ ƐƚĂŶĚĂƌĚƐ͕ ĂŶĚ ŚĂƐ ƚŚĞ ŶŽnjnjůĞ ƚŽ ŝŶĨůĂƚĞ ƚŚĞ ďĞĂĐŚ ďĂůůƐ ŽŶ ƚŚĞ ƚŽƉ ƌĂƚŚĞƌ ƚŚĂŶ ƚŚĞ ďŽƚƚŽŵ ;ƚŚĞLJ ĨůŽĂƚ ƵƉƐŝĚĞ ĚŽǁŶͿ͘ ^ĞǀĞƌĂů ƚĞƐƚ ŽƌĚĞƌƐ ǁĞƌĞ ĐŽŶĚƵĐƚĞĚ ůĂƐƚ ŵŽŶƚŚ ĨƌŽŵ ƚŚĞ ƌĞƚĂŝů ŵĂnjŽŶ ƚĞĂŵ ;ƐŚŝƉƉĞĚ Θ ƐŽůĚ ďLJ ŵĂnjŽŶ͘ĐŽŵͿ ǁŚŝĐŚ ƌĞƐƵůƚĞĚ ŝŶ ƚŚĞ ƌĞĐĞŝƉƚ ŽĨ ĐŽƵŶƚĞƌĨĞŝƚ ŐŽŽĚƐ͘ d