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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION SPANX, INC., Plaintiff, v. TIMES THREE CLOTHIER, LLC d/b/a Yummie Tummie, Defendant. ) ) ) Case No. 13-CV-00710-WSD ) ) ) ) ) ) )

DEFENDANT TIMES THREE CLOTHIER, LLC’S MOTION TO TRANSFER, OR, IN THE ALTERNATIVE, STAY THIS ACTION Defendant Times Three Clothier, LLC (“Yummie Tummie”) hereby moves to transfer the Complaint in the instant action (“the Georgia Action”) filed by Plaintiff Spanx, Inc. (“Spanx”) requesting declaratory relief of non-infringement and invalidity to the Southern District of New York, where a virtually identical action, entitled Times Three Clothier, LLC v. Spanx, Inc., Civil Action No. 13-cv2157 (“the New York Action”), is currently pending. In the alternative, Yummie Tummie seeks to stay the instant action, so that the New York Action may proceed.

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In support of the instant Motion, Yummie Tummie annexes its Memorandum of Law in support hereof and the Declarations of Laura Goldbard George and Richard Rothfeld. The communications between the parties leading to Spanx’s filing of the Georgia Action evidences the bad faith anticipatory nature of the Georgia Action. After an initial exchange of correspondence outlining the parties’ respective positions regarding Yummie Tummie’s claims of infringement against Spanx, the parties engaged in pre-suit settlement negotiations. The very same day that counsel for Spanx proposed a possible framework for an amicable resolution, Spanx filed the instant Action against Yummie Tummie, without any indication that settlement negotiations were being terminated. Spanx’s actions clearly indicate that Spanx intended to mislead Yummie Tummie and delay Yummie Tummie from filing suit, so that Spanx could choose its own forum. This Court should not reward Spanx’s bad faith behavior, and thus should transfer or, in the alternative, stay the Georgia Action. Moreover, the Southern District of New York is the most convenient forum to hear this dispute. As discussed in more detail in Yummie Tummie’s Memorandum of Law, key witnesses and documents are located in the New York metropolitan area, Spanx has significant contacts with New York and Spanx is the
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party best placed to absorb the costs of litigation. Accordingly, Spanx will not be inconvenienced by litigating in New York, rather than in the Northern District of Georgia. CONCLUSION For the forgoing reasons, and those set forth in Defendant Times Three Clothier, LLC’s Memorandum of Law, Yummie Tummie requests that the Court exercise its discretion and transfer the Georgia Action to the Southern District of New York, or, in the alternative, stay these proceedings in favor of permitting the New York Action to proceed. DATED: April 2, 2013 OF COUNSEL: Steven B. Pokotilow Laura Goldbard George Irah Donner Binni N. Shah STROOCK & STROOCK & LAVAN LLP 180 Maiden Lane New York, NY 10038-4982 (212) 806-5400 Respectfully submitted, s/Theodore H. Davis Jr. Theodore H. Davis Jr. Ga. Bar. No. 212913 KILPATRICK TOWNSEND & STOCKTON LLP 1100 Peachtree Street Suite 2800 Atlanta, GA 30309-4528 tdavis@kilpatricktownsend.com Attorneys for Defendant Times Three Clothier, LLC

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION SPANX, INC., Plaintiff, v. TIMES THREE CLOTHIER, LLC d/b/a Yummie Tummie, Defendant. ) ) ) Case No. 13-CV-00710-WSD ) ) ) ) ) ) )

CERTIFICATE OF COMPLIANCE Pursuant to Local Rule 7.1D, the attached pleading complies with the font and point selections prescribed by Local Rule 5.1B and uses 14 point Times New Roman Font.

s/ Theodore H. Davis Jr. Theodore H. Davis Jr.

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION SPANX, INC., Plaintiff, v. TIMES THREE CLOTHIER, LLC d/b/a Yummie Tummie, Defendant. ) ) ) Case No. 13-CV-00710-WSD ) ) ) ) ) ) )

CERTIFICATE OF SERVICE I certify that on April 2, 2013, I electronically filed the foregoing document using the CM/ECF system and have served the same document via Hand Delivery as follows: Natasha H. Moffitt Laura S. Huffman King & Spalding LLP 1180 Peachtree Street, N.E. Atlanta, GA 30309-3521 and via First Class Mail: Kathleen E. McCarthy King & Spalding LLP 1185 Avenue of the Americas New York, NY 10036

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s/ Theodore H. Davis Jr. Theodore H. Davis Jr.

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION SPANX, INC., Plaintiff, v. TIMES THREE CLOTHIER, LLC d/b/a Yummie Tummie, Defendant. ) ) ) Case No. 13-CV-00710-WSD ) ) ) ) ) ) )

DEFENDANT TIMES THREE CLOTHIER, LLC’S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION TO TRANSFER, OR, IN THE ALTERNATIVE, STAY THIS ACTION Defendant Times Three Clothier, LLC (“Yummie Tummie”) hereby moves to transfer the instant action to the United States District Court for the Southern District of New York because it is an improper anticipatory filing. In the alternative, Yummie Tummie moves to stay these proceedings so that a secondfiled action involving the same parties and virtually the same issues entitled Times Three Clothier, LLC v. Spanx, Inc., Civil Action No. 13-cv-2157 may proceed. Transfer and/or Stay is appropriate because the balance of justice and convenience of the parties weighs in favor of transfer.
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For the reasons stated below, and the Declarations of Laura Goldbard George and Richard Rothfeld submitted in support hereof, this motion should be granted.
I.

SUMMARY OF ARGUMENT Spanx, Inc. (“Spanx”) filed the instant action (“the Georgia Action”) on

March 5, 2013 requesting declaratory relief against Yummie Tummie in the midst of ongoing settlement negotiations, ensuring that Yummie Tummie, the natural plaintiff, would be deprived of its choice of forum. By engaging in what Yummie Tummie believed were sincere settlement negotiations between the parties, Yummie Tummie delayed filing suit, despite being ready to do so. Spanx deceived Yummie Tummie by indicating that the parties were working towards a mutually agreeable resolution when in fact, Spanx was preparing its Complaint to be filed. As the real plaintiff in interest, Yummie Tummie has filed a patent infringement action against Spanx in the United States District Court for the Southern District of New York (“the New York Action”), captioned Times Three Clothier, LLC v. Spanx, Inc., Civil Action No.13-cv-2157, accusing Spanx of infringing substantially similar patents as those identified by Spanx in the Georgia Action.

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As discussed in greater detail below, the Georgia Action is not entitled to deference as a the first-filed action because it is an anticipatory that should not get the benefit of the first-to-file rule. In particular, after a series of correspondence and teleconferences, Spanx proposed a framework for a partial resolution of the dispute. Significantly, Spanx never gave any indication that settlement negotiations were at an end during a teleconference with Spanx’s counsel on March 5, 2013. Yet, the very same day that Spanx made its proposal and before Yummie Tummie had a chance to respond to that proposal, Spanx proceeded to file the Georgia Action. These actions clearly demonstrate that Spanx was negotiating with Yummie Tummie in hopes to delay Yummie Tummie from filing suit, so that Spanx could choose its preferred forum. The Court, in its discretion, should transfer the Georgia Action which on the merits is virtually indistinguishable from the New York Action to the Southern District of New York, where the New York Action is pending. Furthermore, the Southern District of New York is the most convenient forum to adjudicate the present dispute between the parties, since several key witnesses and the relevant documents concerning the development of the patents are located in New York and Spanx is the party best suited to absorb the costs of litigation. Additionally, Spanx has significant contacts with New York, including
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a showroom, distribution of its products to over 200 retailers in New York, advertising its products in New York and selling its product out of New York at various trade shows and at Fashion Week in New York City. Furthermore, this Court should not reward Spanx’s bad-faith anticipatory filing in allowing Spanx to choose the forum where this dispute should be heard. Accordingly, this Court should exercise its discretion and deny Spanx the benefit of having first filed this action and transfer this action to the Southern District of New York, which is the most convenient forum, or in the alternative, stay the present proceedings.
II. A.

STATEMENT OF FACTS Yummie Tummie’s Patents Yummie Tummie owns several patents, such as U.S. Design Patent Nos.

D606,285; D616,627; D622,477; D623,377; D632,051; D632,052 and D632,053 (collectively the “Georgia Action Patents”). These patents cover a variety of shapewear garments. Yummie Tummie markets, distributes, and sells its innovative designs under the well-known brand names Yummie Tummie®, Yummie by Heather Thomson®, Tummy Tank®, TummyliciousTM, RIPT Fusion® and Core FormTM (collectively, “Yummie Tummie®”).

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B.

Yummie Tummie’s Cease and Desist letter to Spanx On January 18, 2013, counsel for Yummie Tummie sent Spanx a cease and

desist letter, charging Spanx with infringement of the Georgia Action Patents (“the January 18 Letter”). (Goldbard Dec. Ex. 1). Yummie Tummie also stated that Yummie Tummie “vigorously enforces its rights in its patents” and that it had previously “settled a patent infringement action with Maidenform paying [Yummie Tummie] 6.75 million.” (Id.) Yummie Tummie demanded that Spanx refrain from selling the infringing garments and provide Yummie Tummie damages for all past and ongoing infringement.” (Id.) Yummie Tummie set a deadline for January 31, 2013 by which date Spanx had to comply with Yummie Tummie’s requests. (Id.)
C.

Spanx’s Response to Yummie Tummie’s Cease and Desist Letter Spanx requested a number of extensions to formally respond to Yummie

Tummie’s charges of infringement, which Yummie Tummie readily granted. (Goldbard Dec. Exs. 2, 3, 4). Finally, on February 14, 2013, Spanx provided a written response. (Goldbard Dec. Ex. 5) Notably, Spanx indicated that it was “interested in continuing [the] discussions and resolving any dispute amicably.” (Id.) The particulars regarding what Spanx proposed is not set forth herein pursuant to Fed. R. Evid. Rule 408. Upon receipt and consideration of Spanx’s

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response, counsel for Yummie Tummie requested a conference with Spanx to discuss the response. (Goldbard Dec. Ex. 6, 7, 8).
D.

Subsequent Negotiations between the Parties On February 22, 2013, Ms. Laura Goldbard George and Mr. Steven B.

Pokotilow, counsel for Yummie Tummie, and Ms. Kathleen McCarthy, counsel for Spanx, held a conference call to discuss the respective positions of each party. (Goldbard Dec. ¶ 16). Ms. Goldbard and Mr. Pokotilow disagreed with the positions set forth by Spanx and informed Ms. McCarthy that Yummie Tummie was ready to file a complaint for patent infringement if they did not reach an amicable resolution. (Id.) Ms. McCarthy agreed to speak to her client, after which a second discussion would be had. (Id.) After a series of delays attributable to Spanx, (see Goldbard Dec. Exs. 9, 10, 11), Ms. Goldbard and Mr. Pokotilow and Ms. McCarthy held a second telephone conference on March 5, 2013. (Goldbard Dec. ¶17). Ms. McCarthy proposed another framework for resolving the charge of infringement. (Id.) Ms. Goldbard and Mr. Pokotilow stated that they would advise their client of Spanx’s proposal and get back to Spanx after consulting Yummie Tummie. (Id.) At no time during that conversation did counsel for Spanx advise that settlement negotiations were

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being terminated or that Spanx was preparing to file a lawsuit against Yummie Tummie. (Id.) On the very same day of the telephone conference, even before Mr. Pokotilow or Ms. Goldbard could speak to their client and present Spanx’s proposed framework, counsel for Spanx preemptively filed the instant declaratory judgment action (“the Georgia Action”) seeking a declaration that Spanx does not infringe on the Georgia Action Patents. Yummie Tummie had refrained from filing suit against Spanx in the Southern District of New York based on Spanx’s representations that the parties were working towards a mutually agreeable resolution of the dispute. (Rothfeld Dec. ¶ 5).
E.

Relationship between the New York Action and the Georgia Action On April 2, 2013, Yummie Tummie filed the New York Action. (Goldbard

Dec. Ex. 12). The New York Action is an action for design patent infringement arising under 35 U.S.C. § 101, et. seq., four weeks after Spanx filed the Georgia Action. In the New York Action Complaint, Yummie Tummie alleges that Spanx has used and continues to use the designs of US Design Patent Nos. 606,285; 616,627; 622,477; 623,377; 665,558; and 666,384 (collectively the “New York Action Patents”) in the products that it makes, uses, sells, and offers to sell without Yummie Tummie’s permission. The specific accused products are Spanx’s “The
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Total Taming Tank A226764,” also known as “The Spanx Total Taming Tank,” “the Top This Tank Style 1847” and “The Top This Cami Style 1846.” Further, Yummie Tummie alleges that Spanx has contributed to, or induced, and continues to contribute or induce others, including third party retailers such as JC Penney, Kohl’s, and QVC, and other garment purchasers to infringe the New York Action Patents by using, selling, or offering to sell the infringing products. The Georgia Action, rather, requests declaratory relief that the Georgia Action Patents are invalid or not infringed. The products in question in the Georgia Action and the New York Action, on the face of the respective complaints, are identical, and the patents at issue in both actions are substantially the same and cover similar art. Spanx filed the Georgia Action in anticipation of Yummie Tummie’s suit against Spanx in the Southern District of New York for patent infringement.
III. A.

ARGUMENT The Georgia Action is an Improper Anticipatory Filing The Eleventh Circuit has ruled that although the first-to-file rule encourages

courts to defer to the first filing of a suit, the rule is not to be rigidly applied. District courts have the discretion to “decline to entertain a [first-filed] declaratory judgment action on the merits when a pending proceeding in another court will

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fully resolve the controversy between the parties.” Ven-Fuel, Inc. v. Dep't of the Treasury, 673 F.2d 1194, 1195 (11th Cir. 1982) (dismissing the declaratory judgment action where the declaratory judgment was filed in anticipation of imminent legal proceedings). This Court should consider that “the declaratory judgment action was filed in apparent anticipation of the other pending proceeding” when considering declining jurisdiction. Id. “[A] suit is ‘anticipatory’ for the purposes of being an exception to the first-to-file rule if the plaintiff in the first-filed action filed suit on receipt of specific, concrete indications that a suit by the defendant was imminent.” Woodbolt Distrib., LLC v. Natural Alternatives Intern., Inc., Civil Action No. 11–1266 GMS, 2013WL 247041 (D.Del. Jan. 23, 2013). Although a court may, in its discretion, dismiss an anticipatory action, it may also, in its discretion transfer the action to another district where a substantially similar case is pending. Soroka v. Lee Techs. Servs., Inc., CIV.A.1:06-CV-0710-TWT, 2006 WL 1734277 *4 (N.D. Ga. June 19, 2006) (transferring the first-filed declaratory judgment action after finding that the declaratory judgment action was anticipatory). Courts have found that first-filed anticipatory actions, like the present Georgia Action, should be dismissed or transferred where the declaratory judgment plaintiff deceived the declaratory judgment defendant during pre-suit settlement
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negotiations. Denying a dismissal of a first-filed action in this circumstance would lead to the perverse incentive to file a complaint prior to engaging in settlement negotiations. Rather, “[p]otential plaintiffs should be encouraged to attempt settlement discussions. . . prior to filing lawsuits without fear that the defendant will be permitted to take advantage of the opportunity to institute litigation in a district of its own choosing before the plaintiff files a complaint.” Z-Line Designs, Inc. v. Bell'O Int'l, LLC, 218 F.R.D. 663, 666-67 (N.D. Cal. 2003) (dismissing a first-filed suit where the declaratory judgment defendant had granted deadline extensions with the expectation that settlement options were being explored and the declaratory judgment plaintiff filed suit during the extension period.) In Mission Ins. Co. v. Puritan Fashions Corp., the Fifth Circuit affirmed the transfer of the declaratory judgment action to the second-filed court because the declaratory judgment plaintiff misled the declaratory judgment defendant into believing that it could have filed suit at a later time pending further discussion. 706 F.2d 599, 602 (5th Cir. 1983). Specifically, the declaratory judgment plaintiff agreed to extend a contractual suit limitation period for 30 days, and soon thereafter, prior to the expiration of the 30 days, the declaratory judgment plaintiff rejected the claim and filed suit on the same day. Id. The Fifth Circuit stated “these facts alone would be enough to support a finding of anticipatory filing.” Id.
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In Z-Line Designs, the court held that the anticipatory nature of the filing precluded the application of the first to file rule. 218 F.R.D. at 666-67. The declaratory judgment defendant sent letters to the declaratory judgment plaintiff evidencing a specific and concrete indication of imminent judicial action. Id. The letter identifies the allegedly infringing models, requests information regarding damages resulting from the allegedly infringing activity, a request to cease selling the products at issue and a statement that the declaratory judgment defendant will take all steps to protect its intellectual property, including filing suit. Id. The declaratory judgment defendant extended the deadlines to respond to this letter, with the expectation that settlement options were being explored. Id. However, within the extension period, the declaratory judgment plaintiff filed suit. Id. The court found that the declaratory judgment defendant had misled the plaintiff by accepting the extensions and leading the plaintiff to believe that it had an interest in settlement. Id. Accordingly, the court dismissed the first-filed action. Id. Moreover, courts have held that first-filed suits that engage in impermissible forum shopping are also not given the benefit of the first-to-file rule. In Xoxide, Inc. v. Ford Motors, Co., the court dismissed a declaratory judgment action because the declaratory judgment plaintiff preemptively filed suit to “ensure its choice of forum would prevail should litigation ensue” during discussions to effect
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a non-judicial resolution to the dispute. 448 F. Supp. 2d 1188, 1189 (C.D. Cal. 2006). The declaratory judgment defendant had sent numerous cease and desist letters and engaged in settlement discussions. Id. Given that “where . . . a declaratory judgment action has been triggered by a cease and desist letter that both seeks settlement and notifies the party of the possibility of litigation upon the collapse of negotiations, equity militates in favor of allowing the second-filed action to proceed to judgment rather than the first.” Id. at 1193 (internal quotations omitted). See Woodbolt Distrib., LLC v. Natural Alternatives Intern., Inc., Civil Action No. 11–1266 GMS, 2013 WL 247041 (D. Del. Jan. 23, 2013) (dismissing a declaratory judgment action because the plaintiff had filed suit during settlement negotiations as a “precautionary measure”). Similarly, Spanx, like the plaintiffs in Mission Ins. Co., Xoxide, and Z-Line Designs, misled Yummie Tummie by indicating that a non-judicial resolution was possible, even going so far as suggesting a framework for a possible amicable resolution for some of Yummie Tummie’s claims. Accordingly, Yummie Tummie was lulled into a false sense of security based on such discussions, and in the hopes of avoiding costly and disruptive litigation, did not immediately file suit. Yummie Tummie gave Spanx clear, concrete indications that Yummie Tummie was ready to file suit should negotiations fail to bear fruit. The January
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18 Letter, like the letter in Z-Line Designs, requesting that Spanx cease and desist from infringing Yummie Tummie’s patents clearly identified the products that were in issue, the patents that Yummie Tummie believed were infringed, information relating to past and ongoing damages, and a statement that Yummie Tummie “vigorously enforces the rights in its patents” referencing a prior legal action taken against another defendant. (Goldbard Dec. Ex. 1 ). The letter itself provided a deadline for a response from Spanx, after which it can be reasonably inferred that Yummie Tummie would bring suit. Assuming, arguendo, that the letter itself did not provide a specific, concrete indication of imminent legal action, counsel for Yummie Tummie informed Spanx on the February 22 conference call, twelve days before Spanx had filed the Georgia Action, that Yummie Tummie was ready to file suit. (Goldbard Dec. ¶ 16). Based on the timing of Spanx’s suit—filing suit the same day that Spanx proposed a partial resolution—it is clear that the Georgia Action is an anticipatory action filed in an effort to forum shop, and hence, should not be given the benefit of the first-to-file rule. Although a court may, in its discretion, dismiss an anticipatory action, it may also, in its discretion transfer the action to another district where a substantially similar case is pending. Soroka v. Lee Techs. Servs., Inc., CIV.A.1:06CV0710-13NY 74503821

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TWT, 2006 WL 1734277 (N.D. Ga. June 19, 2006). Here, a substantially similar action is pending in the Southern District of New York, and this Court should exercise its discretion and transfer the Georgia Action to the Southern District of New York or in the alternative, stay the Georgia Action. If this Court should deny Yummie Tummie’s motion to transfer, or in the alternative stay, the Georgia Action, the Court would unreasonably penalize Yummie Tummie for Yummie Tummie’s attempt to resolve the dispute before filing suit. See Xoxide, 448 F. Supp. 2d at 1194.
B.

The Balance of Justice and Convenience of the Parties Weighs in Favor of Transfer to the Southern District of New York The Southern District of New York is the most convenient forum to

adjudicate this dispute, and the balance of justice and convenience favors transferring the Georgia Action to New York. In reaching this conclusion, courts consider various factors, including: “(1) the convenience of the witnesses; (2) the location of relevant documents and the relative ease of access to sources of proof; (3) the convenience of the parties; (4) the locus of operative facts; (5) the availability of process to compel the attendance of unwilling witnesses; (6) the relative means of the parties; (7) a forum's familiarity with the governing law; (8) the weight accorded a plaintiff's choice of forum; and (9) trial efficiency and the

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interests of justice, based on a totality of the circumstances.” Soroka, 2006 WL 1734277 at *4.
1.

Convenience of the Witnesses

Several of Yummie Tummie’s key witnesses are located in New York, such as Heather Thomson, the inventor of all of the patents, and Wendy Herman, head of sales at Yummie Tummie. (Rothfeld Dec. ¶4). Moreover, Yummie Tummie’s key witnesses do not have occasion to visit Georgia for work purposes whereas, upon information and belief, some of Spanx’s expected witnesses travel to New York for the purpose of carrying on Spanx’s business. Also, given that the fashion industry is located in New York, industry experts would also be located in New York. Accordingly, this factor weighs in favor of transferring the Georgia Action to the Southern District of New York.
2.

Location of Relevant Documents and Relative Ease of Access to Sources of Proof

Yummie Tummie’s documents and records relating to the development of the Georgia Action Patents, the documents that Yummie Tummie will likely be called upon to verify the validity of these patents, are located at Yummie Tummie’s offices in New York. (Rothfeld Dec. ¶ 3). While Spanx’s corporate offices are located in Georgia, Yummie Tummie assumes that Spanx may have
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relevant documents relating to its sales that are accessible in New York. Accordingly, this factor weighs in favor of transferring the Georgia Action to the Southern District of New York.
3.

Convenience of the Parties

Yummie Tummie is a limited liability company organized under the laws of New York. (Rothfeld Dec. ¶2). Yummie Tummie’s principal place of business is also located in New York. (Id.) Yummie Tummie has only limited contacts with Georgia, primarily via retailers who sell Yummie Tummie’s product line. Although Spanx is incorporated in Georgia, it has significant contacts with New York. Specifically, Spanx has its own showroom in New York City, sells its products in over 200 retailers in New York, advertises its products in New York, has executives regularly travel to New York and shows its products for sale at various trade shows located in New York and at Fashion Week hosted in New York City. (Goldbard Dec. Exs. 13, 14, 15). Whether the action proceeds in the Southern District of New York or this Court, one of the parties will have to travel to the location. However, due to the extensive contacts that Spanx has to New York, it would not be inconvenient for Spanx to adjudicate this dispute in the Southern District of New York. In fact, Spanx has already retained the counsel of Kathleen E. McCarthy, Esq., a New
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York-based attorney who was conducting the settlement negotiations on behalf of Spanx at the time the Georgia Action was filed by Ms. McCarthy’s firm. Furthermore, Yummie Tummie only has limited contacts with Georgia, and thus litigating in the Northern District of Georgia would be inconvenient and impose an undue financial burden on Yummie Tummie. Accordingly, this factor weighs in favor of transferring the Georgia Action to the Southern District of New York.
4.

Locus of Operative Facts

This factor is believed to be neutral for the parties, and thus should not be considered in this analysis.
5.

The Availability of Process to Compel the Attendance of Unwilling Witnesses

This factor is believed to be neutral for the parties, and thus should not be considered in this analysis.
6.

Weight Accorded to Plaintiff’s Choice of Forum

As discussed previously, Spanx’s choice of forum should be accorded little, if any weight, as it is a bad-faith anticipatory action. Accordingly, this factor weighs in favor of transferring the Georgia Action to the Southern District of New York.

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7.

Relative Means of the Parties

Spanx is a billion-dollar company according to Forbes Magazine. (Rothfeld Dec. Ex. 1). Yummie Tummie, on the other hand, is a significantly smaller entity. (Rothfeld Dec. ¶ 7). Accordingly, Spanx is in the best financial position to absorb the cost of litigation. See Nam v. U.S. Xpress, Inc., 1:10-CV-3924-AT, 2011 WL 1598835 (N.D. Ga. Apr. 27, 2011) (finding that this factor weighs against transfer because the financial burden would be placed on the smaller entity, rather than the largest and most profitable company in that industry). Accordingly, this factor weighs in favor of transfer to the Southern District of New York.
8.

The Forum’s Familiarity with the Governing Law

This factor is believed to be neutral for the parties, and thus should not be considered in this analysis.
9.

Trial Efficiency and the Interests of Justice

As discussed above, anticipatory actions, such as the Georgia Action, are frowned upon as improper forum shopping. As also stated previously, to deny Yummie Tummie’s instant motion in its entirety would reward Spanx for its bad faith actions rather than incentivize the amicable resolution of disputes by penalizing Yummie Tummie for attempting to resolve the dispute prior to resorting

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to judicial intervention. Accordingly, this factor weighs heavily in favor of transferring the instant action to the Southern District of New York. In view of the foregoing, the balance of conveniences weighs heavily in favor of the Southern District of New York as the more convenient forum to hear this dispute.
IV.

CONCLUSION For the foregoing reasons, Yummie Tummie respectfully requests that the

Court exercise its power of discretion to grant Yummie Tummie’s Motion to Transfer to the Southern District of New York, or in the alternative, Stay the Georgia Action. DATED: April 2, 2013 OF COUNSEL: Steven B. Pokotilow Laura Goldbard George Irah Donner Binni N. Shah STROOCK & STROOCK & LAVAN LLP 180 Maiden Lane New York, NY 10038-4982 (212) 806-5400 Respectfully submitted, s/Theodore H. Davis Jr. Theodore H. Davis Jr. Ga. Bar. No. 212913 KILPATRICK TOWNSEND & STOCKTON LLP 1100 Peachtree Street Suite 2800 Atlanta, GA 30309-4528 tdavis@kilpatricktownsend.com Attorneys for Defendant Times Three Clothier, LLC

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION SPANX, INC., Plaintiff, v. TIMES THREE CLOTHIER, LLC d/b/a Yummie Tummie, Defendant. ) ) ) Case No. 13-CV-00710-WSD ) ) ) ) ) ) )

CERTIFICATE OF COMPLIANCE Pursuant to Local Rule 7.1D, the attached pleading complies with the font and point selections prescribed by Local Rule 5.1B and uses 14 point Times New Roman Font.

s/ Theodore H. Davis Jr. Theodore H. Davis Jr.

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION SPANX, INC., Plaintiff, v. TIMES THREE CLOTHIER, LLC d/b/a Yummie Tummie, Defendant. ) ) ) Case No. 13-CV-00710-WSD ) ) ) ) ) ) )

CERTIFICATE OF SERVICE I certify that on April 2, 2013, I electronically filed the foregoing document using the CM/ECF system and have served the same document via Hand Delivery as follows: Natasha H. Moffitt Laura S. Huffman King & Spalding LLP 1180 Peachtree Street, N.E. Atlanta, GA 30309-3521 And via First Class Mail: Kathleen E. McCarthy King & Spalding LLP 1185 Avenue of the Americas New York, NY 10036

-21NY 74503821

Case 1:13-cv-00710-WSD Document 4-1 Filed 04/02/13 Page 22 of 22

s/ Theodore H. Davis Jr. Theodore H. Davis Jr.

-22NY 74503821

Case 1:13-cv-00710-WSD Document 4-2 Filed 04/02/13 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION SPANX, INC, Plaintiff, v. TIMES THREE CLOTHIER, LLC d/b/a Yummie Tummie, Defendant. ) ) ) Case No. 13-CV-00710-WSD ) ) ) ) ) ) )

DECLARATION OF LAURA GOLDBARD GEORGE IN SUPPORT OF DEFENDANT TIMES THREE CLOTHIER, LLC’S MOTION TO TRANSFER, OR IN THE ALTERNATIVE, STAY THE ACTION I, Laura Goldbard George, a partner in the law firm of Stroock & Stroock & Lavan LLP, having offices at 180 Maiden Lane, New York, New York, am familiar with the proceedings and documents related to the above-captioned matter, and declare that the following is true and accurate to the best of my knowledge.
1.

Attached as Exhibit 1 is a true and correct copy of a letter sent to Leslie Slavich, Esq. from myself, dated January 18, 2013.

2.

Attached as Exhibit 2 is a true and correct copy of an e-mail from myself to Kathleen McCarthy, dated January 31, 2013 6:05 PM.

NY 74510530

Case 1:13-cv-00710-WSD Document 4-2 Filed 04/02/13 Page 2 of 5

3.

Attached as Exhibit 3 is a true and correct copy of an email from Kathleen McCarthy to myself, dated February 1, 2013 5:46 PM.

4.

Attached as Exhibit 4 is a true and correct copy of an email from myself to Kathleen McCarthy, dated February 4, 2013 1:48 PM.

5.

Attached as Exhibit 5 is a true and correct copy of a letter that has been redacted from Kathleen McCarthy to Steven Pokotilow and myself, dated February 14, 2013.

6.

Attached as Exhibit 6 is a true and correct copy of an email from myself to Kathleen McCarthy and Steven Pokotilow, dated February 20, 2013 2:09 PM.

7.

Attached as Exhibit 7 is a true and correct copy of an email from Kathleen McCarthy to Steven Pokotilow and myself, dated February 20, 2013 2:34 PM.

8.

Attached as Exhibit 8 is a true and correct copy of an email from Kathleen McCarthy to Steven Pokotilow and myself, dated February 21, 2013 10:50 AM.

9.

Attached as Exhibit 9 is a true and correct copy of an email from Kathleen McCarthy to Steven Pokotilow and myself, dated February 26, 2013 8:58 AM.

10. Attached as Exhibit 10 is a true and correct copy of an email from myself to

Kathleen McCarthy, dated February 26, 2013 11:35 AM.

2
NY 74510530

Case 1:13-cv-00710-WSD Document 4-2 Filed 04/02/13 Page 3 of 5

11. Attached as Exhibit 11 is a true and correct copy of an email from Kathleen

McCarthy to Steven Pokotilow and myself, dated February 26, 2013 11:58 AM.
12. Attached as Exhibit 12 is a true and correct copy of the Complaint filed by

Times Three Clothier, LLC in the United States District Court for the Southern District of New York on April 2, 2013, captioned Times Three Clothier, LLC v. Spanx, Inc., Civil Action No. 13-cv-2157.
13. Attached as Exhibit 13 is a true and correct copy of the Spanx, Inc. webpage

located

at

http://www.spanx.com/category/index.jsp?categoryId=11585907

(last accessed April 1, 2013).
14. Attached as Exhibit 14 is a true and correct copy of the Spanx, Inc. webpage

located at http://www.spanx.com/corp/index.jsp?page=storeLocator&selected IndexValue=&selectedStateIndexValue=&strLocator=&state=NY (last accessed April 1, 2013).
15. Attached as Exhibit 15 is a true and correct copy of the Spanx, Inc. webpage

located at http://press.spanx.com/events/fashion-week-sept-151402-61503 (last accessed April 1, 2013).
16. On February 22, 2013, I, along with Steven B. Pokotilow, counsel for Times

Three Clothier, LLC (“Yummie Tummie”) had a teleconference with Ms.
3
NY 74510530

Case 1:13-cv-00710-WSD Document 4-2 Filed 04/02/13 Page 4 of 5

Kathleen McCarthy, counsel for Spanx, Inc. (“Spanx”).

During this

teleconference, Mr. Pokotilow and I informed Ms. McCarthy that Yummie Tummie disagreed with the positions taken by Spanx in its February 14 Letter (Ex. 5). We also informed Ms. McCarthy that Yummie Tummie was ready to file suit against Spanx should the parties be unable to reach a mutually agreeable resolution. At the end of the teleconference, Ms. McCarthy stated that she would speak to Spanx, and that we would continue negotiations thereafter.
17. On March 5, 2013, I, along with Mr. Pokotilow, had a second conference call

with Ms. McCarthy (see Ex. 9 which evidences delaying the teleconference at the request of Ms. McCarthy). During this call, Ms. McCarthy disputed

certain elements of Yummie Tummie’s claim but nonetheless did advise of a settlement framework that might be acceptable to Spanx for resolving Yummie Tummie’s claims against Spanx. Mr. Pokotilow and I advised that we would discuss the proposed framework with Yummie Tummie and then get back to Ms. McCarthy with Yummie Tummie’s response. At no time during this conversation did Ms. McCarthy indicate that settlement discussions were being terminated or that Spanx was filing suit against Yummie Tummie on that same day.
4
NY 74510530

Case 1:13-cv-00710-WSD Document 4-2 Filed 04/02/13 Page 5 of 5

I declare under penalty of perjury of the laws of the United States of America that the foregoing is true and correct.

Dated: April 2, 2013

s/Laura Goldbard George Laura Goldbard George, Esq.

5
NY 74510530

Case 1:13-cv-00710-WSD Document 4-3 Filed 04/02/13 Page 1 of 3

Exhibit 1

Case 1:13-cv-00710-WSD Document 4-3 Filed 04/02/13 Page 2 of 3

STROOCK
BY UPS
COURIER

January 18, 2013

Laura Goldbard George Direct Dial 212-806-6675 Direct Fax 212-806-7675 LGoldbard@stroock. com

Leslie Slavich, Esq. Spanx, Inc. 3344 Peachtree Road, NE Suite 1700 Atlanta, GA 30326 Re: Infringement ofU.S. Design Patents Our Client/Matter No.: 002870.0001

Dear Ms. Slavich: We represent Times Three Clothier, LLC, doing business as Yummie Tummie ("Yununie"), in connection with patent matters. As you and your client, Spanx, Inc. ("Spanx"), are aware, Yummie is the owner of U.S. Design Patent Nos. D606,285, D616,627, D622,477, D623,377, D632,051, D632,052 and D632,053 (collectively "Patents"). Copies of the Patents are attached. In fact, such Patents have been brought to Spanx's attention. Notwithstanding Spanx's knowledge of the Patents, Spanx has chosen to copy the same. Yummie vigorously enforces the rights in its patents and, as you may know, settled a patent infringement litigation with Maidenform paying Yummie $6.75 million. More specifically, it has come to our attention that Spanx is making, offering for sale and selling shapewear products, through at least QVC, Inc., J.C. Penney Company, Inc. and Spanx's own e-commerce website, in the United States that contain Yummie's patented designs. Such shapewear products include The Total Taming Tank A226764, also known as The Spanx Total Taming Tank, the Top This Tank Style 1847 and The Top This Cami Style 1846 (collectively "Tanks/Cami"). The designs, consisting of three panels, of the Tanks/Cami are so similar to the designs claimed in the Patents that any ordinary consumer would be deceived into believing that the Tanks/Cami are, in fact, Yummie's patented designs and, thus, infringe the Patents. Stated otherwise, the Tanks/Cami appear substantially the same as the patented designs from the point of view of an ordinary observer, thereby, constituting design patent infringement.

NY 74351312v1

STHOOCK

&

STHOOCK

&

LAVAN LLP • NEW YORK • LOS ANGELES ·MIAMI 12.806.5400 FAX 212.806.6006 WWW.STHOOCI<.COM

180 MAIDEN LANE, NEW YOHK, NY 10038-4982 TEL

Case 1:13-cv-00710-WSD Document 4-3 Filed 04/02/13 Page 3 of 3

Leslie Slavich, Esq. Januaty 18, 2013 Page 2

In view of the foregoing, Yummie demands the following in writing from Spanx: 1. that Spanx cease all manufacturing, offering for sale and selling of the Tanks/ Cami; 2. all orders of Tanks/Cami shipped to customers including to whom the Tanks/Cami were shipped, the purchase order number, units, style numbers and total dollar value; 3. open orders of the Tanks/Cami not yet shipped to customers, including the purchase order number, units, style numbers and total dollar value, as well as Tanks/Cami in your warehouse, in transit and on order from the manufacturer, including the number of units, style numbers and total dollar value; 4. account for profits arising from past and ongoing infringement, including increased damages for willfully violating our client's rights in the Patents; and 5. pay Yummie costs and attorney fees in connection with this matter. We expect to receive, by January 31, 2013, written confirmation on behalf of Spanx in regard to the foregoing and Spanx's compliance with our requests.

LGG:lm Enclosures cc: Carrie L. Kiedrowski, Esq. Times Three Clothier, LLC

NY 74351312v1

STROOCK & STROOCK & LAVAN LLP • NEW YORK • LOS ANGELES • 1\!IAMI

180

MAIDEN LANE, NEW YORK, NY

10038-4982

TEL 212.806.5.~00 FAX

212.806.6oo6

\VWW.STROOCK.COM

Case 1:13-cv-00710-WSD Document 4-4 Filed 04/02/13 Page 1 of 3

Exhibit 2

Case 1:13-cv-00710-WSD Document 4-4 Filed 04/02/13 Page 2 of 3 Shah, Binni N.
From: Sent: To: Subject: Goldbard George, Laura Thursday, January 31, 2013 6:05 PM 'McCarthy, Kathleen' RE: Yummie Tummie Design Patents / Spanx, Inc.

Dear Katie, I have agreed to a one week extension, until February 7, 2013, to respond to my letter. I am available for a call next week. How about Monday at 2:00 pm? Laura LAURA GOLDBARD GEORGE STROOCK & STROOCK & LAVAN LLP 180 MAIDEN LANE NEW YORK, NY 10038-4982 Tel: (212) 806-6675 Fax: (212) 806-7675 lgoldbard@stroock.com www.stroock.com
THE INFORMATION CONTAINED IN THIS EMAIL IS PRIVILEGED AND CONFIDENTIAL AND IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL NAMED ABOVE AND OTHERS WHO HAVE BEEN SPECIFICALLY AUTHORIZED TO RECEIVE SAME. IF THE RECIPIENT IS NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, OR IF ANY PROBLEMS OCCUR WITH THIS TRANSMISSION, PLEASE NOTIFY US BY TELEPHONE AT (212) 806-5400.

From: McCarthy, Kathleen [mailto:kmccarthy@kslaw.com] Sent: Thursday, January 31, 2013 5:49 PM To: Goldbard George, Laura Subject: Yummie Tummie Design Patents / Spanx, Inc.

Dear Laura: I am writing regarding your January 18, 2013 letter to Leslie Slavich of Spanx, Inc. regarding the above. Your letter requested a response by today, January 31, 2013. King & Spalding has just been retained to represent Spanx, Inc. regarding the issues raised in your letter and I will need a little more time to review the facts with Spanx. I would also like to discuss some initial questions I have with you. Are you available for a call next week? Best regards, Katie p.s. Please give my regards to Steve Pokotilow.
1

Case 1:13-cv-00710-WSD Document 4-4 Filed 04/02/13 Page 3 of 3
Kathleen E. McCarthy King & Spalding LLP 1185 Avenue of the Americas New York, NY 10036-4003 Tel: (212) 556-2345 Fax: (212) 556-2222 kmccarthy@kslaw.com www.kslaw.com

________________________________
King & Spalding Confidentiality Notice: This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message.

2

Case 1:13-cv-00710-WSD Document 4-5 Filed 04/02/13 Page 1 of 4

Exhibit 3

Case 1:13-cv-00710-WSD Document 4-5 Filed 04/02/13 Page 2 of 4

Goldbard George, laura
From:

Sent:
To:

Cc: Subject:

McCarthy, Kathleen <kmccarthy@kslaw.com> Friday, February 01, 2013 5:46 PM Goldbard George, Laura Pokotilow, Steven RE: Yummie Tummie Design Patents I Spanx, Inc.

Hi Laura: That works for me just as well, but I am not sure I will be able to have a formal response to the letter until after we speak and I can review our discussion with my client. Can we also get a short further extension on the formal response, to a few days after the call? Best regards, Katie
Kathleen E. McCarthy King & Spalding LLP 1185 Avenue of the Americas New York, NY 10036-4003 Tel: (212) 556-2345 Fax: (212) 556-2222 kmccarthy@kslaw.com www.kslaw.com

From: Goldbard George, Laura [mailto:lgoldbard@stroock.com]

Sent: Friday, February 01, 2013 2:22PM
To: McCarthy, Kathleen
Cc: Pokotilow, Steven

Subject: RE: Yummie Tummie Design Patents I Spanx, Inc.
Katie, Steven and I share Tin1es Three as a c11ent. When he heard that you are involved, he wants to join the call. As he will be out of the country next week, how does Monday, February 11, 2013 at 2:00pm work for our call? Best regards. Laura
From: McCarthy, Kathleen [mailto:kmccarthy@kslaw.com]

Sent: Thursday, January 31, 2013 6:08 PM
To: Goldbard George, Laura Subject: RE: Yummie Tummie Design Patents

I

Spanx, Inc.

Dear Laura: Monday at 2 pm will work for me. I will give you a call then. Best regards, Katie
1

Case 1:13-cv-00710-WSD Document 4-5 Filed 04/02/13 Page 3 of 4
Kathleen E. McCarthy King & Spalding LLP 1185 Avenue of the Americas New York, NY 10036-4003 Tel: (212) 556-2345 Fax: (212) 556-2222 kmccarthy@kslaw.com www.kslaw.com

From: Goldbard George, Laura [mailto:lqoldbard@stroock.com]

Sent: Thursday, January 31, 2013 6:05 PM
To: McCarthy, Kathleen Subject: RE: Yummie Tummie Design Patents I Spanx, Inc.

Dear Katie~ I have agreed to a one week extension, until February 7, 2013, to respond to my letter. I an1 available for a call next week How about Monday at 2:00 p111? Laura
LAURA GOLDBARD GEORGE STROOCK & STROOCK & LAVAN

LLP

180 MAIDEN LANE NEvVYORK, NY 10038-4982 Tel: (212) 806-667 5 Fax: (212) 806-7675 lgoldbard@stroock.com www.stroock.com
THE INFORMATION CONTAINED IN THIS EMAIL IS PRIVILEGED AND CONFIDENTIAL AND IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL NAMED ABOVE AND OTHERS WHO HAVE BEEN SPECIFICALLY AUTHORIZED TO RECEIVE SAME. IF THE RECIPIENT IS NOT THE INTENDED
RECIPIENT~

YOU AHE HEREBY NOTIFIED THAT ANY DISSEMINATION, IF YOU HAVE RECEIVED THIS

DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. TELEPHONE AT

COMMUNICATION IN ERROR, OR IF ANY PROBLEMS OCCUR WITH TI-llS TRANSMISSION, PLEASE NOTIFY US BY

(212) 806-5400.

From: McCarthy, Kathleen [mailto:kmccarthy@kslaw.com]

Sent: Thursday, January 31, 2013 5:49 PM
To: Goldbard George, Laura Subject: Yummie Tummie Design Patents

I

Spanx, Inc.

Dear Laura: I am writing regarding your January 18, 2013 letter to Leslie Slavich of Spanx, Inc. regarding the above. Your letter requested a response by today, January 31, 2013. King & Spalding has just been retained to represent Spanx, Inc. regarding the issues raised in your letter and I will need a little more time to review the facts with Spanx.

2

Case 1:13-cv-00710-WSD Document 4-5 Filed 04/02/13 Page 4 of 4 I would also like to discuss some initial questions I have with you. Are you available for a call next week?
Best regards, Katie p.s. Please give my regards to Steve Pokotilow.
Kathleen E. McCarthy King & Spalding LLP 1185 Avenue of the Americas New York, NY 10036-4003 Tel: (212) 556-2345 Fax: (212) 556-2222 kmccarthy@ kslaw .com www.kslaw.com

King & Spalding Confidentiality Notice: This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message.

IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS in Circular 230, we inform you that any tax advice contained in this communication (including any attachment that does not explicitly state otherwise) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS in Circular 230, we inform you that any tax advice contained in this communication (including any attachment that does not explicitly state otherwise) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

3

Case 1:13-cv-00710-WSD Document 4-6 Filed 04/02/13 Page 1 of 5

Exhibit 4

Case 1:13-cv-00710-WSD Document 4-6 Filed 04/02/13 Page 2 of 5 Shah, Binni N.
From: Sent: To: Cc: Subject: Goldbard George, Laura Monday, February 04, 2013 1:48 PM 'McCarthy, Kathleen' Pokotilow, Steven RE: Yummie Tummie Design Patents / Spanx, Inc.

Hi Katie, We agree to a further extension on the formal response, on behalf of Spanx, to our letter, until February 14, 2013. Best regards, Laura LAURA GOLDBARD GEORGE STROOCK & STROOCK & LAVAN LLP 180 MAIDEN LANE NEW YORK, NY 10038-4982 Tel: (212) 806-6675 Fax: (212) 806-7675 lgoldbard@stroock.com www.stroock.com
THE INFORMATION CONTAINED IN THIS EMAIL IS PRIVILEGED AND CONFIDENTIAL AND IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL NAMED ABOVE AND OTHERS WHO HAVE BEEN SPECIFICALLY AUTHORIZED TO RECEIVE SAME. IF THE RECIPIENT IS NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, OR IF ANY PROBLEMS OCCUR WITH THIS TRANSMISSION, PLEASE NOTIFY US BY TELEPHONE AT (212) 806-5400.

From: McCarthy, Kathleen [mailto:kmccarthy@kslaw.com] Sent: Friday, February 01, 2013 5:46 PM To: Goldbard George, Laura Cc: Pokotilow, Steven Subject: RE: Yummie Tummie Design Patents / Spanx, Inc.

Hi Laura: That works for me just as well, but I am not sure I will be able to have a formal response to the letter until after we speak and I can review our discussion with my client. Can we also get a short further extension on the formal response, to a few days after the call? Best regards, Katie
Kathleen E. McCarthy King & Spalding LLP 1185 Avenue of the Americas New York, NY 10036-4003 Tel: (212) 556-2345 Fax: (212) 556-2222
1

Case 1:13-cv-00710-WSD Document 4-6 Filed 04/02/13 Page 3 of 5
kmccarthy@kslaw.com www.kslaw.com

From: Goldbard George, Laura [mailto:lgoldbard@stroock.com] Sent: Friday, February 01, 2013 2:22 PM To: McCarthy, Kathleen Cc: Pokotilow, Steven Subject: RE: Yummie Tummie Design Patents / Spanx, Inc.

Katie, Steven and I share Times Three as a client. When he heard that you are involved, he wants to join the call. As he will be out of the country next week, how does Monday, February 11, 2013 at 2:00 pm work for our call? Best regards. Laura
From: McCarthy, Kathleen [mailto:kmccarthy@kslaw.com] Sent: Thursday, January 31, 2013 6:08 PM To: Goldbard George, Laura Subject: RE: Yummie Tummie Design Patents / Spanx, Inc.

Dear Laura: Monday at 2 pm will work for me. I will give you a call then. Best regards, Katie
Kathleen E. McCarthy King & Spalding LLP 1185 Avenue of the Americas New York, NY 10036-4003 Tel: (212) 556-2345 Fax: (212) 556-2222 kmccarthy@kslaw.com www.kslaw.com

From: Goldbard George, Laura [mailto:lgoldbard@stroock.com] Sent: Thursday, January 31, 2013 6:05 PM To: McCarthy, Kathleen Subject: RE: Yummie Tummie Design Patents / Spanx, Inc.

Dear Katie, I have agreed to a one week extension, until February 7, 2013, to respond to my letter. I am available for a call next week. How about Monday at 2:00 pm? Laura LAURA GOLDBARD GEORGE STROOCK & STROOCK & LAVAN LLP
2

Case 1:13-cv-00710-WSD Document 4-6 Filed 04/02/13 Page 4 of 5
180 MAIDEN LANE NEW YORK, NY 10038-4982 Tel: (212) 806-6675 Fax: (212) 806-7675 lgoldbard@stroock.com www.stroock.com
THE INFORMATION CONTAINED IN THIS EMAIL IS PRIVILEGED AND CONFIDENTIAL AND IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL NAMED ABOVE AND OTHERS WHO HAVE BEEN SPECIFICALLY AUTHORIZED TO RECEIVE SAME. IF THE RECIPIENT IS NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, OR IF ANY PROBLEMS OCCUR WITH THIS TRANSMISSION, PLEASE NOTIFY US BY TELEPHONE AT (212) 806-5400.

From: McCarthy, Kathleen [mailto:kmccarthy@kslaw.com] Sent: Thursday, January 31, 2013 5:49 PM To: Goldbard George, Laura Subject: Yummie Tummie Design Patents / Spanx, Inc.

Dear Laura: I am writing regarding your January 18, 2013 letter to Leslie Slavich of Spanx, Inc. regarding the above. Your letter requested a response by today, January 31, 2013. King & Spalding has just been retained to represent Spanx, Inc. regarding the issues raised in your letter and I will need a little more time to review the facts with Spanx. I would also like to discuss some initial questions I have with you. Are you available for a call next week? Best regards, Katie p.s. Please give my regards to Steve Pokotilow.
Kathleen E. McCarthy King & Spalding LLP 1185 Avenue of the Americas New York, NY 10036-4003 Tel: (212) 556-2345 Fax: (212) 556-2222 kmccarthy@kslaw.com www.kslaw.com

________________________________
King & Spalding Confidentiality Notice: This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message.

3

Case 1:13-cv-00710-WSD Document 4-6 Filed 04/02/13 Page 5 of 5 IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS in Circular 230, we inform you that any tax advice contained in this communication (including any attachment that does not explicitly state otherwise) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS in Circular 230, we inform you that any tax advice contained in this communication (including any attachment that does not explicitly state otherwise) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

4

Case 1:13-cv-00710-WSD Document 4-7 Filed 04/02/13 Page 1 of 7

Exhibit 5

Case 1:13-cv-00710-WSD Document 4-7 Filed 04/02/13 Page 2 of 7

Redacted Redacted

Redacted

Case 1:13-cv-00710-WSD Document 4-7 Filed 04/02/13 Page 3 of 7

Redacted

Case 1:13-cv-00710-WSD Document 4-7 Filed 04/02/13 Page 4 of 7

Redacted

Case 1:13-cv-00710-WSD Document 4-7 Filed 04/02/13 Page 5 of 7

Redacted

Case 1:13-cv-00710-WSD Document 4-7 Filed 04/02/13 Page 6 of 7

Redacted

Case 1:13-cv-00710-WSD Document 4-7 Filed 04/02/13 Page 7 of 7

Redacted Redacted

Case 1:13-cv-00710-WSD Document 4-8 Filed 04/02/13 Page 1 of 3

Exhibit 6

Case 1:13-cv-00710-WSD Document 4-8 Filed 04/02/13 Page 2 of 3 Shah, Binni N.
From: Sent: To: Cc: Subject: Goldbard George, Laura Wednesday, February 20, 2013 2:09 PM 'McCarthy, Kathleen'; Pokotilow, Steven Trademarks, NY; Moffitt, Natasha RE: Times Three / Spanx

Dear Katie, We would like to discuss your recent letter with you. Are you available tomorrow at 10:15 to have a telephone conference? Laura LAURA GOLDBARD GEORGE STROOCK & STROOCK & LAVAN LLP 180 MAIDEN LANE NEW YORK, NY 10038-4982 Tel: (212) 806-6675 Fax: (212) 806-7675 lgoldbard@stroock.com www.stroock.com THE INFORMATION CONTAINED IN THIS EMAIL IS PRIVILEGED AND CONFIDENTIAL AND IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL NAMED ABOVE AND OTHERS WHO HAVE BEEN SPECIFICALLY AUTHORIZED TO RECEIVE SAME. IF THE RECIPIENT IS NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, OR IF ANY PROBLEMS OCCUR WITH THIS TRANSMISSION, PLEASE NOTIFY US BY TELEPHONE AT (212) 806-5400.

-----Original Message----From: McCarthy, Kathleen [mailto:kmccarthy@kslaw.com] Sent: Thursday, February 14, 2013 8:46 PM To: Pokotilow, Steven; Goldbard George, Laura Cc: Trademarks, NY; Moffitt, Natasha Subject: Times Three / Spanx Dear Steve and Laura: Please see the attached letter. Best regards, Katie Kathleen E. McCarthy King & Spalding 1185 Avenue of the Americas
1

Case 1:13-cv-00710-WSD Document 4-8 Filed 04/02/13 Page 3 of 3
New York, New York 10036 General Dial: 212-556-2100 Direct Dial: 212-556-2345 Fax: 212-556-2222 kmccarthy@kslaw.com http://www.kslaw.com

King & Spalding Confidentiality Notice: This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message.

2

Case 1:13-cv-00710-WSD Document 4-9 Filed 04/02/13 Page 1 of 3

Exhibit 7

Case 1:13-cv-00710-WSD Document 4-9 Filed 04/02/13 Page 2 of 3

Goldbard George, laura
From:

Sent:
To: Cc:

Subject:

McCarthy, Kathleen <kmccarthy@kslaw.com> Wednesday, February 20, 2013 2:34 PM Goldbard George, Laura; Pokotilow, Steven Trademarks, NY; Moffitt, Natasha Re: Times Three I Spanx

I have a call already scheduled @ 10:30 and then a lunch meeting at noon. I am free at 2 or later if that works at your end. Best regards, Katie

Kathleen E. McCarthy King & Spalding 1185 Avenue of the Americas New York, New York 10036 General Dial: 212-556-2100 Direct Dial: 212-556-2345 Fax: 212-556-2222 kmccarthy@kslaw.com http://www.kslaw.com

-----Original Message----From: Goldbard George, Laura [mailto:lgoldbard@stroock.com] Sent: Wednesday, February 20, 2013 02:09PM To: McCarthy, Kathleen; Pokotilow, Steven <spokotilow@stroock.com> Cc: Trademarks, NY; Moffitt, Natasha Subject: RE: Times Three I Spanx Dear Katie, We would like to discuss your recent letter with you. Are you available tomorrow at 10:15 to have a telephone conference? Laura LAURA GOLDBARD GEORGE STROOCK & STROOCK & LAVAN LLP 180 MAIDEN LANE NEW YORK, NY 10038-4982 Tel: {212) 806-6675 Fax: {212) 806-7675 lgoldbard@stroock.com www.stroock.com

1

Case 1:13-cv-00710-WSD Document 4-9 Filed 04/02/13 Page 3 of 3
THE INFORMATION CONTAINED IN THIS EMAIL IS PRIVILEGED AND CONFIDENTIAL AND IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL NAMED ABOVE AND OTHERS WHO HAVE BEEN SPECIFICALLY AUTHORIZED TO RECEIVE SAME. IF THE RECIPIENT IS NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, OR IF ANY PROBLEMS OCCUR WITH THIS TRANSMISSION, PLEASE NOTIFY US BY TELEPHONE AT {212) 806-5400.

-----Original Message----From: McCarthy, Kathleen [mailto:kmccarthy@kslaw.com] Sent: Thursday, February 14, 2013 8:46 PM To: Pokotilow, Steven; Goldbard George, Laura Cc: Trademarks, NY; Moffitt, Natasha Subject: Times Three I Spanx Dear Steve and Laura: Please see the attached letter. Best regards, Katie Kathleen E. McCarthy King & Spalding 1185 Avenue of the Americas New York, New York 10036 General Dial: 212-556-2100 Direct Dial: 212-556-2345 Fax: 212-556-2222 kmcca rthy@ kslaw .com http://www.kslaw.com

King & Spalding Confidentiality Notice: This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message. IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS in Circular 230, we inform you that any tax advice contained in this communication (including any attachment that does not explicitly state otherwise) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

2

Case 1:13-cv-00710-WSD Document 4-10 Filed 04/02/13 Page 1 of 4

Exhibit 8

Case 1:13-cv-00710-WSD Document 4-10 Filed 04/02/13 Page 2 of 4
Goldbard George, Laura
From: McCarthy/ Kathleen < kmccarthy@kslaw.com> Thursday/ February 21 1 2013 10:50 AM Goldbard George/ Laura; Pokotilow/ Steven Trademarks/ NY; Moffitt Natasha RE: Times Three I Spanx

Sent:
To:

Cc: Subject:

Laura and Steve: I may still be able to take this call-- will advise later-- but wanted to give you a heads up that I am at home and waiting to schedule a doctor's appointment (on hold at the moment). I managed to get a scratched cornea earlier in the week by getting poked in the eye by my little guy (not on purpose of course) with an Angry Birds valentine. You can't make this stuff up. If the timing of the doctor's appointment works out, 3:30 will still work, and I can still speak even though my eyesight is compromised. Unless you hear from me otherwise, please call at 3:30 at 718-721-6119. Thanks, Katie Kathleen E. McCarthy King & Spalding LLP 1185 Avenue of the Americas New York, NY 10036-4003 Tel: {212) 556-2345 Fax: {212) 556-2222 kmccarthy@kslaw.com www.kslaw.com

-----Original Message----From: Goldbard George, Laura [mailto:lgoldbard@stroock.com] Sent: Wednesday, February 20, 2013 2:41 PM To: McCarthy, Kathleen; Pokotilow, Steven Cc: Trademarks, NY; Moffitt, Natasha Subject: RE: Times Three I Spanx 3:30 works. We will call you. -----Original Message----From: McCarthy, Kathleen [mailto:kmccarthy@kslaw.com] Sent: Wednesday, February 20, 2013 2:34 PM To: Goldbard George, Laura; Pokotilow, Steven Cc: Trademarks, NY; Moffitt, Natasha Subject: Re: Times Three I Spanx

I have a call already scheduled @ 10:30 and then a lunch meeting at noon. I am free at 2 or later if that works at your end.

1

Case 1:13-cv-00710-WSD Document 4-10 Filed 04/02/13 Page 3 of 4
Best regards, Katie

Kathleen E. McCarthy King & Spalding 1185 Avenue of the Americas New York, New York 10036 General Dial: 212-556-2100 Direct Dial: 212-556-2345 Fax: 212-556-2222 kmcca rthy@ kslaw .com http://www.kslaw.com

-----Original Message----From: Goldbard George, Laura [mailto:lgoldbard@stroock.com] Sent: Wednesday, February 20, 2013 02:09 PM To: McCarthy, Kathleen; Pokotilow, Steven <spokotilow@stroock.com> Cc: Trademarks, NY; Moffitt, Natasha Subject: RE: Times Three I Spanx Dear Katie, We would like to discuss your recent letter with you. Are you available tomorrow at 10:15 to have a telephone conference? Laura LAURA GOLDBARD GEORGE STROOCK & STROOCK & LAVAN LLP 180 MAIDEN LANE NEW YORK, NY 10038-4982 Tel: (212) 806-6675 Fax: (212) 806-7675 lgoldbard@stroock.com www.stroock.com THE INFORMATION CONTAINED IN THIS EMAIL IS PRIVILEGED AND CONFIDENTIAL AND IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL NAMED ABOVE AND OTHERS WHO HAVE BEEN SPECIFICALLY AUTHORIZED TO RECEIVE SAME. IF THE RECIPIENT IS NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, OR IF ANY PROBLEMS OCCUR WITH THIS TRANSMISSION, PLEASE NOTIFY US BY TELEPHONE AT (212) 806-5400.

-----Original Message----From: McCarthy, Kathleen [mailto:kmccarthy@kslaw.com] Sent: Thursday, February 14, 2013 8:46 PM To: Pokotilow, Steven; Gold bard George, Laura
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Case 1:13-cv-00710-WSD Document 4-10 Filed 04/02/13 Page 4 of 4
Cc: Trademarks, NY; Moffitt, Natasha Subject: Times Three I Spanx Dear Steve and Laura: Please see the attached letter. Best regards, Katie Kathleen E. McCarthy King & Spalding 1185 Avenue of the Americas New York, New York 10036 General Dial: 212-556-2100 Direct Dial: 212-556-2345 Fax: 212-556-2222 kmccarthy@kslaw.com http://www. kslaw .com

King & Spalding Confidentiality Notice: This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message. IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS in Circular 230, we inform you that any tax advice contained in this communication (including any attachment that does not explicitly state otherwise) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS in Circular 230, we inform you that any tax advice contained in this communication (including any attachment that does not explicitly state otherwise) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

3

Case 1:13-cv-00710-WSD Document 4-11 Filed 04/02/13 Page 1 of 6

Exhibit 9

Case 1:13-cv-00710-WSD Document 4-11 Filed 04/02/13 Page 2 of 6
Goldbard George, Laura
From:
McCarthy, Kathleen < kmccarthy@kslaw.com > Tuesday, February 26, 2013 8:58AM Goldbard George, Laura; Pokotilow, Steven Trademarks, NY RE: Times Three I Spanx

Sent:
To:

Cc: Subject:

Hi Laura and Steve: I had a call with the Spanx GC yesterday morning per our call on Friday and she needs to confer with the CEO. I was just advised that the meeting with the CEO can't take place until Thursday. Can we push back our call, since I won't have client instructions until Thursday? I have a court conference at noon on Friday but should be back in the office by 3:30. Can we move our call from today to 3:30 Friday? Thanks, Katie Kathleen E. McCarthy King & Spalding LLP 1185 Avenue of the Americas New York, NY 10036.-4003 Tel: (212) 556-2345 Fax: (212) 556-2222 kmccarthy@kslaw.com www.kslaw.com

-----Original Message----From: Goldbard George, Laura [mailto:lgoldbard@stroock.com] Sent: Thursday, February 21, 2013 4:09 PM To: McCarthy, Kathleen; Pokotilow, Steven Cc: Trademarks, NY; Moffitt, Natasha Subject: Re: Times Three I Spanx Yes, that works.

LAURA GOLDBARD GEORGE STROOCK & STROOCK & LAVAN LLP 180 MAIDEN LANE NEW YORK, NY 10038 Direct: 212.806.6675 Fax: 212.806.7675 lgoldbard@stroock.com www .stroock.com -----Original Message----From: McCarthy, Kathleen [mailto:kmccarthy@kslaw.com] Sent: Thursday, February 21, 2013 03:35 PM To: Goldbard George, Laura; Pokotilow, Steven
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Case 1:13-cv-00710-WSD Document 4-11 Filed 04/02/13 Page 3 of 6
Cc: Trademarks, NY <NTrademarks@KSLAW.com>; Moffitt, Natasha <NMoffitt@KSLAW.com> Subject: RE: Times Three I Spanx Hi Laura: I have a court conference tomorrow at 11 in the SDNY, so I will be en route to the courthouse at 10:15 and a lunch thereafter. I could do the same time tomorrow as we had planned for today-- 3:30 --if that works for you both. Thanks, Katie Kathleen E. McCarthy King & Spalding LLP 1185 Avenue of the Americas New York, NY 10036-4003 Tel: (212) 556-2345 Fax: (212) 556-2222 kmccarthy@kslaw.com www.kslaw.com

-----Original Message----From: Goldbard George, Laura [mailto:lgoldbard@stroock.com] Sent: Thursday, February 21, 2013 3:28 PM To: McCarthy, Kathleen; Pokotilow, Steven Cc: Trademarks, NY; Moffitt, Natasha Subject: RE: Times Three I Spanx Katie, Steven is tried up on a call and I have a 4:00 meeting. Thus, please advise if we can re-schedule to tomorrow morning at 10:15. Laura -----Original Message----From: McCarthy, Kathleen [mailto:kmccarthy@kslaw.com] Sent: Thursday, February 21, 2013 10:50 AM To: Goldbard George, Laura; Pokotilow, Steven Cc: Trademarks, NY; Moffitt, Natasha Subject: RE: Times Three I Spanx Laura and Steve: I may still be able to take this call-- will advise later-- but wanted to give you a heads up that I am at home and waiting to schedule a doctor's appointment (on hold at the moment). I managed to get a scratched cornea earlier in the week by getting poked in the eye by my little guy (not on purpose of course) with an Angry Birds valentine. You can't make this stuff up. If the timing of the doctor's appointment works out, 3:30 will still work, and I can still speak even though my eyesight is compromised. Unless you hear from me otherwise, please call at 3:30 at 718-721-6119. Thanks, Katie
2

Case 1:13-cv-00710-WSD Document 4-11 Filed 04/02/13 Page 4 of 6
Kathleen E. McCarthy King & Spalding LLP 1185 Avenue of the Americas New York, NY 10036-4003 Tel: (212) 556-2345 Fax: (212) 556-2222 kmccarthy@kslaw.com www.kslaw.com

-----Original Message----From: Goldbard George, Laura [mailto:lgoldbard@stroock.com] Sent: Wednesday, February 20, 2013 2:41 PM To: McCarthy, Kathleen; Pokotilow, Steven Cc: Trademarks, NY; Moffitt, Natasha Subject: RE: Times Three I Spanx 3:30 works. We will call you. -----Original Message----From: McCarthy, Kathleen [mailto:kmccarthy@kslaw.com] Sent: Wednesday, February 20, 2013 2:34 PM To: Goldbard George, Laura; Pokotilow, Steven Cc: Trademarks, NY; Moffitt, Natasha Subject: Re: Times Three I Spanx

I have a call already scheduled @ 10:30 and then a lunch meeting at noon. I am free at 2 or later if that works at your end. Best regards, Katie

Kathleen E. McCarthy King & Spalding 1185 Avenue of the Americas New York, New York 10036 General Dial: 212-556-2100 Direct Dial: 212-556-2345 Fax: 212-556-2222 kmccarthy@kslaw.com http://www.kslaw.com

-----Original Message----From: Goldbard George, Laura [mailto:lgoldbard@stroock.com] Sent: Wednesday, February 20, 2013 02:09 PM To: McCarthy, Kathleen; Pokotilow, Steven <spokotilow@stroock.com> Cc: Trademarks, NY; Moffitt, Natasha Subject: RE: Times Three I Spanx
3

Case 1:13-cv-00710-WSD Document 4-11 Filed 04/02/13 Page 5 of 6
Dear Katie, We would like to discuss your recent letter with you. Are you available tomorrow at 10:15 to have a telephone conference? Laura LAURA GOLDBARD GEORGE STROOCK & STROOCK & LAVAN LLP 180 MAIDEN LANE NEW YORK, NY 10038-4982 Tel: (212) 806-6675 Fax: (212) 806-7675 lgoldbard@stroock.com www.stroock.com THE INFORMATION CONTAINED IN THIS EMAIL IS PRIVILEGED AND CONFIDENTIAL AND IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL NAMED ABOVE AND OTHERS WHO HAVE BEEN SPECIFICALLY AUTHORIZED TO RECEIVE SAME. IF THE RECIPIENT IS NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, OR IF ANY PROBLEMS OCCUR WITH THIS TRANSMISSION, PLEASE NOTIFY US BY TELEPHONE AT (212) 806-5400.

-----Original Message----From: McCarthy, Kathleen [mailto:kmccarthy@kslaw.com] Sent: Thursday, February 14, 2013 8:46 PM To: Pokotilow, Steven; Goldbard George, Laura Cc: Trademarks, NY; Moffitt, Natasha Subject: Times Three I Spanx Dear Steve and Laura: Please see the attached letter. Best regards, Katie Kathleen E. McCarthy King & Spalding 1185 Avenue of the Americas New York, New York 10036 General Dial: 212-556-2100 Direct Dial: 212-556-2345 Fax: 212-556-2222 kmccarthy@kslaw.com http://www.kslaw.com

4

Case 1:13-cv-00710-WSD Document 4-11 Filed 04/02/13 Page 6 of 6
King & Spalding Confidentiality Notice: This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message. IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS in Circular 230, we inform you that any tax advice contained in this communication (including any attachment that does not explicitly state otherwise) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS in Circular 230, we inform you that any tax advice contained in this communication (including any attachment that does not explicitly state otherwise) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS in Circular 230, we inform you that any tax advice contained in this communication (including any attachment that does not explicitly state otherwise) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS in Circular 230, we inform you that any tax advice contained in this communication (including any attachment that does not explicitly state otherwise) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

5

Case 1:13-cv-00710-WSD Document 4-12 Filed 04/02/13 Page 1 of 6

Exhibit 10

Case 1:13-cv-00710-WSD Document 4-12 Filed 04/02/13 Page 2 of 6

Goldbard George, laura
From:

Sent: To: Cc: Subject:

Goldbard George/ Laura Tuesday/ February 26 1 2013 11:35 AM 'McCarthy/ Kathleen'; Pokotilow/ Steven Trademarks/ NY RE: Times Three I Spanx

Katie, Friday does not work for us. How about Tuesday at 3:30? Laura -----Original Message----From: McCarthy, Kathleen [mailto:kmccarthy@kslaw.com] Sent: Tuesday, February 26, 2013 8:58AM To: Goldbard George, Laura; Pokotilow, Steven Cc: Trademarks, NY Subject: RE: Times Three I Spanx Hi Laura and Steve: I had a call with the Spanx GC yesterday morning per our call on Friday and she needs to confer with the CEO. I was just advised that the meeting with the CEO can't take place until Thursday. Can we push back our call, since I won't have client instructions until Thursday? I have a court conference at noon on Friday but should be back in the office by 3:30. Can we move our call from today to 3:30 Friday? Thanks, Katie Kathleen E. McCarthy King & Spalding LLP 1185 Avenue of the Americas New York, NY 10036-4003 Tel: {212) 556-2345 Fax: {212) 556-2222 kmccarthy@kslaw.com www.kslaw.com

-----Original Message----From: Goldbard George, Laura [mailto:lgoldbard@stroock.com] Sent: Thursday, February 21, 2013 4:09 PM To: McCarthy, Kathleen; Pokotilow, Steven Cc: Trademarks, NY; Moffitt, Natasha Subject: Re: Times Three I Spanx Yes, that works.

1

Case 1:13-cv-00710-WSD Document 4-12 Filed 04/02/13 Page 3 of 6
LAURA GOLDBARD GEORGE STROOCK & STROOCK & LAVAN LLP 180 MAIDEN LANE NEW YORK, NY 10038 Direct: 212.806.6675 Fax: 212.806.7675 Igold bard@ stroock.com www.stroock.com -----Original Message----From: McCarthy, Kathleen [mailto:kmccarthy@kslaw.com] Sent: Thursday, February 21, 2013 03:35 PM To: Goldbard George, Laura; Pokotilow, Steven Cc: Trademarks, NY <NTrademarks@KSLAW.com>; Moffitt, Natasha <NMoffitt@KSLAW.com> Subject: RE: Times Three I Spanx Hi Laura: I have a court conference tomorrow at 11 in the SONY, so I will be en route to the courthouse at 10:15 and a lunch thereafter. I could do the same time tomorrow as we had planned for today-- 3:30 --if that works for you both. Thanks, Katie Kathleen E. McCarthy King & Spalding LLP 1185 Avenue of the Americas New York, NY 10036-4003 Tel: (212) 556-2345 Fax: (212) 556-2222 kmccarthy@kslaw.com www.kslaw.com

-----Original Message----From: Goldbard George, Laura [mailto:lgoldbard@stroock.com] Sent: Thursday, February 21, 2013 3:28PM To: McCarthy, Kathleen; Pokotilow, Steven Cc: Trademarks, NY; Moffitt, Natasha Subject: RE: Times Three I Spanx Katie, Steven is tried up on a call and I have a 4:00 meeting. Thus, please advise if we can re-schedule to tomorrow morning at 10:15. Laura -----Original Message----From: McCarthy, Kathleen [mailto:kmccarthy@kslaw.com] Sent: Thursday, February 21, 2013 10:50 AM To: Goldbard George, Laura; Pokotilow, Steven Cc: Trademarks, NY; Moffitt, Natasha
2

Case 1:13-cv-00710-WSD Document 4-12 Filed 04/02/13 Page 4 of 6
Subject: RE: Times Three I Spanx Laura and Steve: I may still be able to take this call-- will advise later-- but wanted to give you a heads up that I am at home and waiting to schedule a doctor's appointment (on hold at the moment}. I managed to get a scratched cornea earlier in the week by getting poked in the eye by my little guy (not on purpose of course} with an Angry Birds valentine. You can't make this stuff up. If the timing of the doctor's appointment works out, 3:30 will still work, and I can still speak even though my eyesight is compromised. Unless you hear from me otherwise, please call at 3:30 at 718-721-6119. Thanks, Katie Kathleen E. McCarthy King & Spalding LLP 1185 Avenue of the Americas New York, NY 10036-4003 Tel: (212} 556-2345 Fax: (212} 556-2222 kmccarthy@kslaw.com www.kslaw.com

-----Original Message----From: Goldbard George, Laura [mailto:lgoldbard@stroock.com] Sent: Wednesday, February 20, 2013 2:41 PM To: McCarthy, Kathleen; Pokotilow, Steven Cc: Trademarks, NY; Moffitt, Natasha Subject: RE: Times Three I Spanx

3:30 works. We will call you.
-----Original Message----From: McCarthy, Kathleen [mailto:kmccarthy@kslaw.com] Sent: Wednesday, February 20, 2013 2:34 PM To: Goldbard George, Laura; Pokotilow, Steven Cc: Trademarks, NY; Moffitt, Natasha Subject: Re: Times Three I Spanx

I have a call already scheduled @ 10:30 and then a lunch meeting at noon. I am free at 2 or later if that works at your end. Best regards, Katie

Kathleen E. McCarthy King & Spalding 1185 Avenue of the Americas New York, New York 10036
3

Case 1:13-cv-00710-WSD Document 4-12 Filed 04/02/13 Page 5 of 6
General Dial: 212-556-2100 Direct Dial: 212-556-2345 Fax: 212-556-2222 kmccarthy@kslaw.com http://www.kslaw.com

-----Original Message ----From: Goldbard George, Laura [mailto:lgoldbard@stroock.com] Sent: Wednesday, February 20, 2013 02:09 PM To: McCarthy, Kathleen; Pokotilow, Steven <spokotilow@stroock.com> Cc: Trademarks, NY; Moffitt, Natasha Subject: RE: Times Three I Spanx Dear Katie, We would like to discuss your recent letter with you. Are you available tomorrow at 10:15 to have a telephone conference? Laura LAURA GOLDBARD GEORGE STROOCK & STROOCK & LAVAN LLP 180 MAIDEN LANE NEW YORK, NY 10038-4982 Tel: {212) 806-6675 Fax: {212) 806-7675 lgold bard@ stroock.com www.stroock.com THE INFORMATION CONTAINED IN THIS EMAIL IS PRIVILEGED AND CONFIDENTIAL AND IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL NAMED ABOVE AND OTHERS WHO HAVE BEEN SPECIFICALLY AUTHORIZED TO RECEIVE SAME. IF THE RECIPIENT IS NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, OR IF ANY PROBLEMS OCCUR WITH THIS TRANSMISSION, PLEASE NOTIFY US BY TELEPHONE AT (212) 806-5400.

-----Original Message----From: McCarthy, Kathleen [mailto:kmccarthy@kslaw.com] Sent: Thursday, February 14, 2013 8:46 PM To: Pokotilow, Steven; Goldbard George, Laura Cc: Trademarks, NY; Moffitt, Natasha Subject: Times Three I Spanx Dear Steve and Laura: Please see the attached letter. Best regards, Katie
4

Case 1:13-cv-00710-WSD Document 4-12 Filed 04/02/13 Page 6 of 6
Kathleen E. McCarthy King & Spalding 1185 Avenue of the Americas New York, New York 10036 General Dial: 212-556-2100 Direct Dial: 212-556-2345 Fax: 212-556-2222 kmccarthy@kslaw.com http://www.kslaw.com

King & Spalding Confidentiality Notice: This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message. IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS in Circular 230, we inform you that any tax advice contained in this communication (including any attachment that does not explicitly state otherwise) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS in Circular 230, we inform you that any tax advice contained in this communication (including any attachment that does not explicitly state otherwise) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS in Circular 230, we inform you that any tax advice contained in this communication (including any attachment that does not explicitly state otherwise) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS in Circular 230, we inform you that any tax advice contained in this communication (including any attachment that does not explicitly state otherwise) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

5

Case 1:13-cv-00710-WSD Document 4-13 Filed 04/02/13 Page 1 of 7

Exhibit 11

Case 1:13-cv-00710-WSD Document 4-13 Filed 04/02/13 Page 2 of 7

Goldbard George, laura
From:

Sent:
To:

Cc: Subject:

McCarthy, Kathleen < kmccarthy@kslaw.com > Tuesday, February 26, 2013 11:58 AM Goldbard George, Laura; Pokotilow, Steven Trademarks, NY RE: Times Three I Spanx

That should work, with the proviso that I have to start calling Queens County Court starting Friday night at 5 pm to see if I am on jury duty next week. Let's set it down for Tuesday at 3:30 and I'll let you know asap if we need an adjustment. I already postponed once, so I have to show up if my number is called. Serving as a juror (on a short civil jury trial) might actually be interesting, but they never pick me. Thanks, Katie

-----Original Message----From: Goldbard George, Laura [mailto:lgoldbard@stroock.com] Sent: Tuesday, February 26, 2013 11:35 AM To: McCarthy, Kathleen; Pokotilow, Steven Cc: Trademarks, NY Subject: RE: Times Three I Spanx Katie, Friday does not work for us. How about Tuesday at 3:30? Laura -----Original Message----From: McCarthy, Kathleen [mailto:kmccarthy@kslaw.com] Sent: Tuesday, February 26, 2013 8:58AM To: Goldbard George, Laura; Pokotilow, Steven Cc: Trademarks, NY Subject: RE: Times Three I Spanx Hi Laura and Steve: I had a call with the Spanx GC yesterday morning per our call on Friday and she needs to confer with the CEO. I was just advised that the meeting with the CEO can't take place until Thursday. Can we push back our call, since I won't have client instructions until Thursday? I have a court conference at noon on Friday but should be back in the office by 3:30. Can we move our call from today to 3:30 Friday? Thanks, Katie Kathleen E. McCarthy King & Spalding LLP 1185 Avenue of the Americas New York, NY 10036-4003
1

Case 1:13-cv-00710-WSD Document 4-13 Filed 04/02/13 Page 3 of 7
Tel: (212) 556-2345 Fax: (212) 556-2222 kmccarthy@kslaw.com www.kslaw.com

-----Original Message----From: Goldbard George, Laura [mailto:lgoldbard@stroock.com] Sent: Thursday, February 21, 2013 4:09 PM To: McCarthy, Kathleen; Pokotilow, Steven Cc: Trademarks, NY; Moffitt, Natasha Subject: Re: Times Three I Spanx Yes, that works.

LAURA GOLDBARD GEORGE STROOCK & STROOCK & LAVAN LLP 180 MAIDEN LANE NEW YORK, NY 10038 Direct: 212.806.6675 Fax: 212.806.7675 Igold bard@ stroock.co m www.stroock.com -----Original Message----From: McCarthy, Kathleen [mailto:kmccarthy@kslaw.com] Sent: Thursday, February 21, 2013 03:35 PM To: Gold bard George, Laura; Pokotilow, Steven Cc: Trademarks, NY <NTrademarks@KSLAW.com>; Moffitt, Natasha <NMoffitt@KSLAW.com> Subject: RE: Times Three I Spanx Hi Laura: I have a court conference tomorrow at 11 in the SONY, so I will be en route to the courthouse at 10:15 and a lunch thereafter. I could do the same time tomorrow as we had planned for today-- 3:30 -- if that works for you both. Thanks, Katie Kathleen E. McCarthy King & Spalding LLP 1185 Avenue of the Americas New York, NY 10036-4003 Tel: (212) 556-2345 Fax: (212) 556-2222 kmccarthy@kslaw.com www.kslaw.com

-----Original Message----From: Goldbard George, Laura [mailto:lgoldbard@stroock.com] Sent: Thursday, February 21, 2013 3:28 PM
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To: McCarthy, Kathleen; Pokotilow, Steven Cc: Trademarks, NY; Moffitt, Natasha Subject: RE: Times Three I Spanx Katie, Steven is tried up on a call and I have a 4:00 meeting. Thus, please advise if we can re-schedule to tomorrow morning at 10:15. Laura -----Original Message----From: McCarthy, Kathleen [mailto:kmccarthy@kslaw.com] Sent: Thursday, February 21, 2013 10:50 AM To: Goldbard George, Laura; Pokotilow, Steven Cc: Trademarks, NY; Moffitt, Natasha Subject: RE: Times Three I Spanx Laura and Steve: I may still be able to take this call-- will advise later-- but wanted to give you a heads up that I am at home and waiting to schedule a doctor•s appointment (on hold at the moment). I managed to get a scratched cornea earlier in the week by getting poked in the eye by my little guy (not on purpose of course) with an Angry Birds valentine. You can•t make this stuff up. If the timing of the doctor•s appointment works out, 3:30 will still work, and I can still speak even though my eyesight is compromised. Unless you hear from me otherwise, please call at 3:30 at 718-721-6119. Thanks, Katie Kathleen E. McCarthy King & Spalding LLP 1185 Avenue of the Americas New York, NY 10036-4003 Tel: (212) 556-2345 Fax: (212) 556-2222 kmccarthy@kslaw.com www.kslaw.com

-----Original Message----From: Goldbard George, Laura [mailto:lgoldbard@stroock.com] Sent: Wednesday, February 20, 2013 2:41 PM To: McCarthy, Kathleen; Pokotilow, Steven Cc: Trademarks, NY; Moffitt, Natasha Subject: RE: Times Three I Spanx 3:30 works. We will call you. -----Original Message----From: McCarthy, Kathleen [mailto:kmccarthy@kslaw.com] Sent: Wednesday, February 20, 2013 2:34 PM
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To: Goldbard George, Laura; Pokotilow, Steven Cc: Trademarks, NY; Moffitt, Natasha Subject: Re: Times Three I Spanx

I have a call already scheduled @ 10:30 and then a lunch meeting at noon. I am free at 2 or later if that works at your end. Best regards, Katie

Kathleen E. McCarthy King & Spalding 1185 Avenue of the Americas New York, New York 10036 General Dial: 212-556-2100 Direct Dial: 212-556-2345 Fax: 212-556-2222 kmccarthy@kslaw.com http://www.kslaw.com

-----Original Message ----From: Goldbard George, Laura [mailto:lgoldbard@stroock.com] Sent: Wednesday, February 20, 2013 02:09 PM To: McCarthy, Kathleen; Pokotilow, Steven <spokotilow@stroock.com> Cc: Trademarks, NY; Moffitt, Natasha Subject: RE: Times Three I Spanx Dear Katie, We would like to discuss your recent letter with you. Are you available tomorrow at 10:15 to have a telephone conference? Laura LAURA GOLDBARD GEORGE STROOCK & STROOCK & LAVAN LLP 180 MAIDEN LANE NEW YORK, NY 10038-4982 Tel: (212) 806-6675 Fax: (212) 806-7675 lgoldbard@stroock.com www .stroock.com THE INFORMATION CONTAINED IN THIS EMAIL IS PRIVILEGED AND CONFIDENTIAL AND IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL NAMED ABOVE AND OTHERS WHO HAVE BEEN SPECIFICALLY AUTHORIZED TO RECEIVE SAME. IF THE RECIPIENT IS NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, OR IF ANY PROBLEMS OCCUR WITH THIS TRANSMISSION, PLEASE NOTIFY US BY TELEPHONE AT (212) 806-5400.

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-----Original Message----From: McCarthy, Kathleen [mailto:kmccarthy@kslaw.com] Sent: Thursday, February 14, 2013 8:46 PM To: Pokotilow, Steven; Goldbard George, Laura Cc: Trademarks, NY; Moffitt, Natasha Subject: Times Three I Spanx Dear Steve and Laura: Please see the attached letter. Best regards, Katie Kathleen E. McCarthy King & Spalding 1185 Avenue of the Americas New York, New York 10036 General Dial: 212-556-2100 Direct Dial: 212-556-2345 Fax: 212-556-2222 kmccarthy@kslaw.com http://www.kslaw.com

King & Spalding Confidentiality Notice: This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message. IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS in Circular 230, we inform you that any tax advice contained in this communication (including any attachment that does not explicitly state otherwise) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS in Circular 230, we inform you that any tax advice contained in this communication (including any attachment that does not explicitly state otherwise) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS in Circular 230, we inform you that any tax advice contained in this communication (including any attachment that does not explicitly state otherwise) is not
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intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS in Circular 230, we inform you that any tax advice contained in this communication (including any attachment that does not explicitly state otherwise) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS in Circular 230, we inform you that any tax advice contained in this communication (including any attachment that does not explicitly state otherwise) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

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Exhibit 12

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UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

TIMES THREE CLOTHIER, LLC, Civil Action No. Plaintiff, v. SPANX, INC. Defendant.
JURY TRIAL DEMANDED
------

COMPLAINT FOR PATENT INFRINGEMENT

Times Three Clothier, LLC d/b/a! Yummie Tummie ("Yummie Tummie") sues Defendant Spanx, Inc. d/b/a Spanx by Sara Blakely ("Defendant Spanx by Sara Blakely") and, on information and belief, alleges as follows:
Introduction

1.

Yummie Tummie owns the designs claimed in United States Design Patent Nos.

606, 285 ("the '285 Patent"); 616,627 ("the '627 Patent"); 622,477 ("the '477 Patent"); 623,377 ("the '377 Patent") 665,558 ("the '558 Patent") and 666,384 ("the '384 Patent") (collectively "the patents-in-suit"). Defendant Spanx by Sara Blakely has copied Yummie Tummie's patented designs in garments that it makes, uses, sells, and offers to sell, without Yummie Tummie's permission, and has contributed to or induced, and continues to contribute to or induce, others to infringe the patents-in-suit. Yummie Tummie seeks damages and/or a disgorgement of Defendant Spanx by Sara Blakely's total profits as well as its customers' profits for patent infringement and an injunction preventing Defendant Spanx by Sara Blakely from making,

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using, selling, or offering to sell, and from contributing to and inducing others to make, use, sell, or offer to sell, Yummie Tummie's patented designs without permission.

Jurisdiction and Venue
2. This is an action for patent infringement arising under the patent laws of the

United States, 35 U.S.C. §§ 271 and 281, et seq. The Court has original jurisdiction over this patent infringement action under 28 U.S. C. §§ 1338(a). 3. Venue is proper in this Court because Yummie Tummie is located in the Southern

District of New York and Defendant Spanx by Sara Blakely is responsible for acts of infringement occurring in the Southern District of New York as alleged in this Complaint, and has delivered or caused to be delivered its infringing products in the Southern District of New York. Plaintiff Yummie Tummie 4. Yummie Tummie is a limited liability company organized and existing under the

laws of the State ofNew York, with its principal place ofbusiness in New York, New York. 5. Yummie Tummie is an independent manufacturer of shapewear garments that

embody innovative designs that are marketed, distributed, and sold under the well-known brand names Yummie Tummie®, Yummie by Heather Thomson®, Tummy Tank®, Tummylicious™, RIPT Fusion® and Core Form™ (collectively, "Yummie Tummie®"). Yummie Tummie's

expansive Yummie Tummie® product line was conceived and designed by Heather Thomson, a fashion designer and creative director who has contributed to many acclaimed fashion collections, including Sean John by Sean Combs, Sweetface by Jennifer Lopez, and House of DenSon by Beyonce Knowles.

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6.

Yummie Tummie has invested significant time, effort and expense to protect its

innovative designs and has a patent portfolio of eleven patents, including the patents-in-suit. Ms. Thomson's patented designs are embodied in an expansive line of Yummie Tummie® products, all of which offer consumers attractive and fashion-forward women's shapewear. Yummie Tummie has launched a range of Yummie Tummie® branded shapewear products based on its patented design, including a variety of styles of tops, apparel, and intimates for women of all sizes. Yummie Tummie's Yummie Tummie® line of shapewear is sold at such retailers as Saks Fifth Avenue, Nordstrom, The Home Shopping Network, Bloomingdale's and Lord & Taylor.
Yummie Tummie' s Design Patents

7.

The United States Patent and Trademark Office issued the '285 Patent on

December 22, 2009. A copy of the '285 Patent is attached hereto as Exhibit 1. Through assignment, Yummie Tummie is the owner of all right, title, and interest, including rights for past infringements, in the '285 Patent. 8. The United States Patent and Trademark Office issued the '627 Patent on June 1,

2010. A copy of the '627 Patent is attached hereto as Exhibit 2. Through assignment, Yummie Tummie is the owner of all right, title, and interest, including rights for past infringements, in the '627 Patent. 9. The United States Patent and Trademark Office issued the '4 77 Patent on August

31, 2010. A copy of the '4 77 Patent is attached hereto as Exhibit 3. Through assignment, Yummie Tummie is the owner of all right, title, and interest, including rights for past infringements, in the '4 77 Patent. 10. The United States Patent and Trademark Office issued the '377 Patent on

September 14, 2010. A copy of the '377 Patent is attached hereto as Exhibit 4. Through

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assignment, Yummie Tummie is the owner of all right, title, and interest, including rights for past infringements, in the '3 77 Patent. 11. The United States Patent and Trademark Office issued the '558 Patent on August

21, 2012. A copy of the '558 Patent is attached hereto as Exhibit 5. Through assignment, Yummie Tummie is the owner of all right, title, and interest, including rights for past infringements, in the '55 8 Patent. 12. The United States Patent and Trademark Office issued the '384 Patent on A copy of the '384 Patent is attached hereto as Exhibit 6. Through

September 4, 2012.

assignment, Yummie Tummie is the owner of all right, title, and interest, including rights for past infringements, in the '3 84 Patent. 13. Yummie Tummie has complied with the statutory requirement of placing a notice

of the patents-in-suit on all necessary garments it manufactures and sells.
Defendant Spanx by Sara Blakely and its Acts of Infringement

14.

Defendant Spanx by Sara Blakely is a Georgia corporation, doing business in

New York, NY through many retailers and a showroom. 15. Defendant Spanx by Sara Blakely has used and continues to use the designs of the

patents-in-suit in products that it makes, uses, sells, and offers to sell, without Yummie Tummie's permission, including, but not limited to, Defendant Spanx by Sara Blakely's "The Total Taming Tank A226764," also known as "The Spanx Total Taming Tank," "the Top This Tank Style 1847" and "The Top This Cami Style 1846" (collectively the "Infringing Garments"). 16. Defendant Spanx by Sara Blakely has contributed to or induced, and continues to

contribute to or induce, others, including third party garment retailers, including, inter alia, JC Penny, Kohl's and QVC, and garment purchasers, to infringe at least one of the patents-in-suit by

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using, offering for sale, and selling at least one of the Infringing Garments, which are copies of Yummie Tummie's patented designs, without Yummie Tummie's permission. 17. Defendant Spanx by Sara Blakely was aware of Yummie Tummie's patents at

least as early as May 18, 2012 as a result of a letter Yummie Tummie sent to Defendant Spanx by Sara Blakely listing certain patents-in-suit thereby providing Defendant Spanx by Sara Blakely with actual knowledge of same. 18. On January 18, 2013, Yummie Tummie sent Defendant Spanx by Sara Blakely a

cease and desist letter, in regard to the Infringing Garments demanding that Defendant Spanx by Sara Blakely refrain from further infringing Yummie Tummie's patents and compensate Yummie Tummie for its past infringement. A copy of the January 18, 2013 letter is attached as Exhibit 7. Since that time, Defendant Spanx by Sara Blakely's counsel responded to the January 18 letter which led to discussions between the parties in an attempt to resolve the matter. Prior to initiating such discussions, Defendant Spanx by Sara Blakely's counsel requested multiple extensions of time to respond to Yummie Tummie's letter. Yummie Tummie agreed to such extensions based on its good faith belief that Defendant Spanx by Sara Blakely intended to resolve the matter. However, in the midst of ongoing discussions initiated by Defendant Spanx by Sara Blakely, Defendant Spanx by Sara Blakely filed a Declaratory Judgment action in the Northern District of Georgia, entitled Spanx, Inc. v. Times Three Clothier, LLC, Case No. 13-cv00710-WSD, on March 5, 2013 without notice to Yummie Tummie. Such action by Defendant Spanx by Sara Blakely evidences that Defendant Spanx by Sara Blakely intends to continue its willful and intentional infringement of Yummie Tummie's design patents asserted herein.

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COUNT I (DESIGN PATENT INFRINGEMENT, 35 U.S.C. §§ 271 AND 281) 19. Yummie Tummie incorporates the allegations contained in paragraphs 1 through

18 as though fully set forth herein. 20. Defendant Spanx by Sara Blakely has been and, on information and belief, still is

making, using, offering to sell, selling, and/or importing in the United States Infringing Garments that infringe the '285 Patent in violation of35 U.S.C. § 271(a). 21. On information and belief, Defendant Spanx by Sara Blakely has been and still is

actively inducing others to infringe the '285 Patent in violation of 35 U.S.C. § 271 (b). 22. On information and belief, Defendant Spanx by Sara Blakely's infringement has

been intentional and willful, making this an exceptional case. 23. By reason of Defendant Spanx by Sara Blakely's infringement, Yummie Tummie

has suffered, and unless Defendant Spanx by Sara Blakely's conduct is permanently enjoined, will continue to suffer, actual damages and irreparable harm, as to which it has no adequate remedy at law.
COUNT II (DESIGN PATENT INFRINGEMENT, 35 U.S.C. §§ 271 AND 281)

24.

Yummie Tummie incorporates the allegations contained in paragraphs 1 through

18 as though fully set forth herein. 25. Defendant Spanx by Sara Blakely has been and, on information and belief, still is

making, using, offering to sell, selling, and/or importing in the United States Infringing Garments that infringe the '627 Patent in violation of35 U.S.C. § 271(a). 26. On information and belief, Defendant Spanx by Sara Blakely has been and still is

actively inducing others to infringe the '627 Patent in violation of35 U.S.C. § 271(b).

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27.

On information and belief, Defendant Spanx by Sara Blakely's infringement has

been intentional and willful, making this an exceptional case. 28. By reason of Defendant Spanx by Sara Blakely's infringement, Yummie Tummie

has suffered, and unless Defendant Spanx by Sara Blakely's conduct is permanently enjoined, will continue to suffer, actual damages and irreparable harm, as to which it has no adequate remedy at law. COUNT III (DESIGN PATENT INFRINGEMENT, 35 U.S.C. §§ 271 AND 281) 29. Yummie Tummie incorporates the allegations contained in paragraphs 1 through

18 as though fully set forth herein. 30. Defendant Spanx by Sara Blakely has been and, on information and belief, still is

making, using, offering to sell, selling, and/or importing in the United States Infringing Garments that infringe the '477 Patent in violation of 35 U.S.C. § 271(a). 31. On information and belief, Defendant Spanx by Sara Blakely has been and still is

actively inducing others to infringe the '477 Patent in violation of35 U.S.C. § 271(b). 32. On information and belief, Defendant Spanx by Sara Blakely's infringement has

been intentional and willful, making this an exceptional case. 33. By reason of Defendant Spanx by Sara Blakely's infringement, Yummie Tummie

has suffered, and unless Defendant Spanx by Sara Blakely's conduct is permanently enjoined, will continue to suffer, actual damages and irreparable harm, as to which it has no adequate remedy at law. COUNT IV (DESIGN PATENT INFRINGEMENT, 35 U.S.C. §§ 271 AND 281) 34. Yummie Tummie incorporates the allegations contained in paragraphs 1 through

18 as though fully set forth herein.
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35.

Defendant Spanx by Sara Blakely has been and, on information and belief, still is

making, using, offering to sell, selling, and/or importing in the United States Infringing Garments that infringe the '377 Patent in violation of35 U.S.C. § 271(a). 36. On information and belief, Defendant Spanx by Sara Blakely has been and still is

actively inducing others to infringe the '377 Patent in violation of35 U.S.C. § 271(b). 37. On information and belief, Defendant Spanx by Sara Blakely's infringement has

been intentional and willful, making this an exceptional case. 38. By reason of Defendant Spanx by Sara Blakely's infringement, Yummie Tummie

has suffered, and unless Defendant Spanx by Sara Blakely's conduct is permanently enjoined, will continue to suffer, actual damages and irreparable harm, as to which it has no adequate remedy at law. COUNTY (DESIGN PATENT INFRINGEMENT, 35 U.S.C. §§ 271 AND 281) 39. Yummie Tummie incorporates the allegations contained in paragraphs 1 through

18 as though fully set forth herein. 40. Defendant Spanx by Sara Blakely has been and, on information and belief, still is

making, using, offering to sell, selling, and/or importing in the United States Infringing Garments that infringe the '558 Patent in violation of35 U.S.C. § 271(a). 41. On information and belief, Defendant Spanx by Sara Blakely has been and still is

actively inducing others to infringe the '558 Patent in violation of35 U.S.C. § 271(b). 42. On information and belief, Defendant Spanx by Sara Blakely's infringement has

been intentional and willful, making this an exceptional case. 43. By reason of Defendant Spanx by Sara Blakely's infringement, Yummie Tummie

has suffered, and unless Defendant Spanx by Sara Blakely's conduct is permanently enjoined,
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will continue to suffer, actual damages and irreparable harm, as to which it has no adequate remedy at law. COUNT VI (DESIGN PATENT INFRINGEMENT, 35 U.S.C. §§ 271 AND 281) 44. Yummie Tummie incorporates the allegations contained in paragraphs 1 through

18 as though fully set forth herein. 45. Defendant Spanx by Sara Blakely has been and, on information and belief, still is

making, using, offering to sell, selling, and/or importing in the United States Infringing Garments that infringe the '384 Patent in violation of35 U.S.C. § 271(a). 46. On information and belief, Defendant Spanx by Sara Blakely has been and still is

actively inducing others to infringe the '384 Patent in violation of35 U.S.C. § 27l(b). 47. On information and belief, Defendant Spanx by Sara Blakely's infringement has

been intentional and willful, making this an exceptional case. 48. By reason of Defendant Spanx by Sara Blakely's infringement, Yummie Tummie

has suffered, and unless Defendant Spanx by Sara Blakely's conduct is permanently enjoined, will continue to suffer, actual damages and irreparable harm, as to which it has no adequate remedy at law.
PRAYER FOR RELIEF

WHEREFORE, Yummie Tummie respectfully requests that this Court: 1. Enter judgment in favor of Yummie Tummie; 2. Permanently enjoin Defendant Spanx by Sara Blakely and its predecessors, successors, divisions, subsidiaries, or joint ventures thereof, together with any and all parent or affiliated companies or corporations, and all officers, directors, employees, agents, attorneys, representatives, those acting in privity or concern with Defendant
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Spanx by Sara Blakely, or on its behalf, from further infringing the '285 Patent, and from inducing others to infringe the '285 Patent; 3. Permanently enjoin Defendant Spanx by Sara Blakely and its predecessors, successors, divisions, subsidiaries, or joint ventures thereof, together with any and all parent or affiliated companies or corporations, and all officers, directors, employees, agents, attorneys, representatives, those acting in privity or concern with Defendant Spanx by Sara Blakely, or on its behalf, from further infringing the '627 Patent, and from inducing others to infringe the '627 Patent; 4. Permanently enjoin Defendant Sparr.x by Sara Blakely and its predecessors, successors, divisions, subsidiaries, or joint ventures thereof, together with any and all parent or affiliated companies or corporations, and all officers, directors, employees, agents, attorneys, representatives, those acting in privity or concern with Defendant Spanx by Sara Blakely, or on its behalf, from further infringing the '477 Patent, and from inducing others to infringe the '4 77 Patent; 5. Permanently enjoin Defendant Spanx by Sara Blakely and its predecessors, successors, divisions, subsidiaries, or joint ventures thereof, together with any and all parent or affiliated companies or corporations, and all officers, directors, employees, agents, attorneys, representatives, those acting in privity or concern with Defendant Spanx by Sara Blakely, or on its behalf, from further infringing the '377 Patent, and from inducing others to infringe the '3 77 Patent; 6. Permanently enjoin Defendant Spanx by Sara Blakely and its predecessors, successors, divisions, subsidiaries, or joint ventures thereof, together with any and all parent or affiliated companies or corporations, and all officers, directors, employees,

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agents, attorneys, representatives, those acting in privity or concern with Defendant Spanx by Sara Blakely, or on its behalf, from further infringing the '558 Patent, and from inducing others to infringe the '558 Patent; 7. Permanently enjoin Defendant Spanx by Sara Blakely and its predecessors, successors, divisions, subsidiaries, or joint ventures thereof, together with any and all parent or affiliated companies or corporations, and all officers, directors, employees, agents, attorneys, representatives, those acting in privity or concern with Defendant Spanx by Sara Blakely, or on its behalf, from further infringing the '384 Patent, and from inducing others to infringe the '3 84 Patent; 8. Award Yummie Tummie its actual damages under 35 U.S.C. § 284 in an amount to be determined at trial; 9. Award Yummie Tummie enhanced damages up to three times the amount found or assessed under 35 U.S.C. § 284, as a result of Defendant Spanx by Sara Blakely's knowing and willful infringement; 10. Award Yummie Tummie the disgorged total profits of Defendant Spanx by Sara Blakely and its customers that sold or offered for sale the Infringing Garments under 35 U.S.C. §289 from infringing the patents-in-suit in an amount to be determined at trial; 11. Award Yummie Tummie punitive damages because of Defendant Spanx by Sara Blakely's knowing, willful, and deliberate bad faith acts of unfair competition in an amount to be determined at trial; 12. Award Yummie Tummie all of its actual costs and reasonable attorneys' fees in this action as authorized by 35 U.S.C. § 285; and

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13. Grant to Yummie Tummie such other relief as may be just and warranted under the circumstances.

JURY TRIAL DEMAND
Yummie Tummie demands a trial by jury o all issues so triable.

Dated: Apri12, 2013

By:

STROOCK & STROOCK & LAVAN LLP 180 Maiden Lane New York, NY 10038 (212) 806-5400 Email: SPokotilow@stroock.com Email: LGoldbard@stroock.com Email: IDonner@stroock.com Email: BNShah@stroock.com

Attorneys for Plaintiff Times Three Clothier, LLC

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Exhibit 1

Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 15 of 73
111111 1111111111111111111111111111111111111111111111111111111111111
USOOD606285S

c12)

United States Design Patent
Schindler
GARMENT

(10) (45)

Patent No.: Date of Patent:
B1 S A1 A1

US D606,285 S

** Dec. 22, 2009
Burkhart ....................... 2/78.1 Thunstedt .................... D2/847 Summers eta!. ............... 2/113 Karasina

(54) (75)

Inventor:

Heather Thomson Schindler, New York, NY (US)

6,430,748 D556,978 2007/0094765 2008/0134409

* * *

8/2002 12/2007 5/2007 6/2008

(73)

Assignee: Times Three Clothier LLC, New York, NY (US) Term:
14 Years

FOREIGN PATENT DOCUMENTS
JP JP JP

(**)
(21) (22)

2006-316359 2007-146337 2007-303002

1112006 6/2007 1112007

Appl. No.: 29/302,500 Filed:
Jan.17,2008

* cited by examiner Primary Examiner-Ian Simmons Assistant Examiner-Anna J Burmeister (74) Attorney, Agent, or Firm-Irah H. Donner; Wilmer Cutler Pickering Hale and Dorr LLP (57)
CLAIM

(51) (52) (58)

LOC (9) Cl. . ... ... ... ... .. ... ... ... ... ... .. ... ... ... ... .. ... . 02-02 U.S. Cl. ....................................................... D2/840 Field of Classification Search .......... D2/700-703, D2/731, 732, 828, 840, 718, 737, 847; 21112, 2/113; 450/96,94, 115, 116, 122-124, 127, 450/132, 154 See application file for complete search history. References Cited

The ornamental design for a garment, as shown and described.
DESCRIPTION FIG. 1 is a front elevation view of Embodiment 1, of a garment;

(56)

U.S. PATENT DOCUMENTS
1,977,329 2,052,935 D110,662 D129,894 D174,115 2,963,022 3,026,875 3,036,574 D211,231 3,454,013 D234,649 D239,475 4,916,755 5,915,531 6,000,993 D452,600 D453,058 D453,255 A A S S S A A A S A S S A A A S S S

* * * * * * * * * * * * * * * * *

10/1934 9/1936 7/1938 10/1941 3/1955 12/1960 3/1962 511962 6/1968 7/1969 4/197 5 4/1976 4/1990 6/1999 12/1999 112002 112002

Tobin ............................ 2/113 Moran ......................... 450/10 Rielly ......................... D2/714 Abeles ........................ D2/703 Dior ............................ D2/703 Spetalnik ..................... 450/15 Kaupp ........................ 450/116 Jeffrey . ... .. ... ... ... ... ... .. . 450/30 Sallysy ........................ D21702 Cahill ........................ 450/116 Cascio ........................ D2/703 Cascio ........................ D21702 Feigenbaum eta!. Hilpert et a!. .. .. ... ... ... ... .. .. 2/69 Erwin ........................... 450/7 Kim ............................ D21702 Kim ............................ D2/703 212002 Kim ............................ D21702

FIG. 2 is a rear elevation view thereof; FIG. 3 is a right elevation view thereof; FIG. 4 is a left elevation view thereof; FIG. 5 is a right side elevation view of Embodiment 2, of a multi-fabric garment, where the front and rear elevation views are the same as FIGS. 1-2; and, FIG. 6 is a left elevation view of Embodiment 2, of a multifabric garment. The center section and lower section of the claimed design is shaded to illustrate contrasting materials. The broken lines depicting the stitching shown in the drawings are for environmental structure only and form no part of the claimed design.
1 Claim, 6 Drawing Sheets

Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 16 of 73

U.S. Patent

Dec. 22, 2009

Sheet 1 of 6

US D606,285 S

-----------

FIG. 1

Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 17 of 73

U.S. Patent

Dec. 22, 2009

Sheet 2 of 6

US D606,285 S

FIG. 2

Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 18 of 73

U.S. Patent

Dec. 22, 2009

Sheet 3 of 6

US D606,285 S

FIG. 3

Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 19 of 73

U.S. Patent

Dec. 22, 2009

Sheet 4 of 6

US D606,285 S

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Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 20 of 73

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Dec. 22, 2009

Sheet 5 of 6

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Exhibit 2

Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 23 of 73

IIIIII
c12)

1111111111111111111111111111111111111111111 USOOD616627S

11111111111

United States Design Patent
Schindler
GARMENT

(10) (45)

Patent No.: Date of Patent:

US D616,627 S

**

Jun.1,2010

(54) (75)

Inventor:

Heather Thomson Schindler, New York, NY (US)

2,963,022 A 3,026,875 A 3,036,574 A

12/1960 Spetalnik 3/1962 Kaupp 511962 Nellie

(73)

Assignee: Times Three Clothier, LLC., New York, NY (US) Term:
14 Years
JP

(Continued) FOREIGN PATENT DOCUMENTS
2006-316359 1112006

(**) (21) (22)

Appl. No.: 29/350,198 Filed:
Nov. 12, 2009

(Continued)
Related U.S. Application Data

(63)

Continuation of application No. 29/302,500, filed on Jan. 17, 2008, now Pat. No. Des. 606,285.
LOC (9) Cl. . ... ... ... ... .. ... ... ... ... ... .. ... ... ... ... .. ... . 02-02 U.S. Cl. ....................................................... D2/702 Field of Classification Search .......... D2/700-703, D2/731, 732,828,840,718,737,847, 714; 2/112, 113, 69; 450/96, 94, 115, 116, 122-124, 450/127, 132, 154, 10, 15, 30 See application file for complete search history. References Cited

(51) (52) (58)

Primary Examiner-Philip S Hyder Assistant Examiner-Anna J Burmeister (74) Attorney, Agent, or Firm-Irah H. Donner; Wilmer Culter Pickering Hale and Dorr LLP (57)
CLAIM

The ornamental design for a garment, as shown and described herein.

(56)

DESCRIPTION

U.S. PATENT DOCUMENTS
357,068 570,696 1,774,613 1,931,822 1,977,329 2,052,935 D110,662 D128,536 D129,894 2,310,103 2,579,547 D170,694 D174,038 D174,114 D174,115 D174,194 D177,982 A A A A A A S S S A A S S S S S S 2/1887 1111896 9/1930 10/1933 10/1934 9/1936 7/1938 7/1941 10/1941 2/1943 12/1951 10/1953 2/1955 3/1955 3/1955 3/1955 6/1956 Dalby Brown Pidgeon Hoffman Clarke Moran Rielly Wei! ............................ D21702 Abeles McDonald Cadous ....................... 450/112 Kahn .......................... D21702 Goldstein .................... D21702 Dior ............................ D21702 Dior Prochaska .................... D21702 Kahn .......................... D21702

FIG. 1 is a front elevation view of Embodiment 1, of a garment; FIG. 2 is a rear elevation view thereof; FIG. 3 is a right elevation view thereof; FIG. 4 is a left elevation view thereof; FIG. 5 is a right side elevation view of Embodiment 2, of a garment, where the front and rear elevation views are the same as FIGS. 1-2; and, FIG. 6 is a left elevation view of Embodiment 2, of a garment. The center section and lower section of the claimed design is shaded to illustrate different appearance. The broken lines shown in the drawings are for environmental structure only and form no part of the claimed design.
1 Claim, 6 Drawing Sheets

* * * * * * *

Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 24 of 73

US D616,627 S
Page 2 U.S. PATENT DOCUMENTS
D211,231 3,454,013 D234,649 D239,475 4,916,755 5,915,531 6,000,993 D452,600 D453,058 D453,255 6,430,748 D556,978 D595,480 2007/0094765 2008/0134409 2008/0244805 B1 S S A1 A1 A1 8/2002 12/2007 7/2009 5/2007 6/2008 10/2008 Burkhart Thunstedt et al. Giugliano .................... D21702 Summers eta!. Karasina Griffin

s
A

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A A A S S S

*

6/1968 7/1969 4/1975 4/1976 4/1990 6/1999 12/1999 112002 112002 212002

Sallysy Cahill Cascio Cascio Feigenbaum eta!. Hi! pert et a!. Erwin Kim eta!. Kim eta!. Kim ............................ D21702

*

FOREIGN PATENT DOCUMENTS
JP JP

2007-146337 2007-303002

6/2007 1112007

* cited by examiner

Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 25 of 73

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Exhibit 3

Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 32 of 73

IIIIII
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1111111111111111111111111111111111111111111 USOOD6224 77S

11111111111

United States Design Patent
Schindler
GARMENT

(10) (45)

Patent No.: Date of Patent:

US D622,4 77 S

** Aug. 31, 2010

(54) (75)

2,310,103 A D152,981 S

2/1943 McDonald 3/1949 Kaupp

Inventor:

Heather Thomson Schindler, New York, NY (US)

(Continued) (73) Assignee: Times Three Clothier, LLC, New York, NY (US) Term:
14 Years
JP

FOREIGN PATENT DOCUMENTS
2006-316359 1112006

(**) (21)
(22)

Appl. No.: 29/362,498 Filed:
May 26, 2010 Related U.S. Application Data

(Continued) Primary Examiner-Philip S Hyder Assistant Examiner-Anna J Burmeister (74) Attorney, Agent, or Firm-Stroock & Stroock & Lavan LLP (57)
CLAIM

(63)

Continuation of application No. 29/362,414, filed on May 25, 2010, which is a continuation of application No. 29/350,198, filed on Nov. 12, 2009, now Pat. No. Des. 616,627, which is a continuation of application No. 29/302,500, filed on Jan. 17, 2008, now Pat. No. Des. 606,285.
LOC (9) Cl. . ... ... ... ... .. ... ... ... ... ... .. ... ... ... ... .. ... . 02-01 U.S. Cl. ....................................................... D2/700 Field of Classification Search .......... D2/700-703, D2/731, 732,828,840,718,737,847, 714; 2/112, 113, 69; 450/96, 94, 115, 116, 122-124, 450/127, 132, 154, 10, 15, 30 See application file for complete search history. References Cited

The ornamental design for a garment, as shown and described herein.
DESCRIPTION

(51) (52) (58)

FIG. 1 is a front elevation view of embodiment 1, of a garment; FIG. 2 is a rear elevation view thereof; FIG. 3 is a right elevation view thereof; FIG. 4 is a left elevation view thereof; FIG. 5 is a right side elevation view of embodiment 2, of a garment, where the front and rear elevation views are the same as FIGS. 1-2; and, FIG. 6 is a left elevation view of embodiment 2, of a garment. The phantom and/or broken lines are for illustrative purposes only and form no part of the claimed design. The broken lines depicting the stitching shown in the drawings are for environmental structure only and form no part of the claimed design. The broken lines depicting the human form shown in the drawings are for environmental structure only and form no part of the claimed design.
1 Claim, 6 Drawing Sheets

(56)

U.S. PATENT DOCUMENTS
357,068 570,696 1,683,510 1,774,613 1,931,822 1,977,329 2,052,784 2,052,935 Dll0,662 D128,536 D129,078 D129,894 A A A A A A A A S S S S 2/1887 1111896 9/1928 9/1930 10/1933 10/1934 9/1936 9/1936 7/1938 7/1941 8/1941 10/1941 Dalby Brown Wiese Pidgeon Hoffman Clarke Martin Moran Rielly Wei! Monteil Abeles

Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 33 of 73

US D622,477 S
Page 2 U.S. PATENT DOCUMENTS
2,579,547 D170,694 D174,038 D174,114 D174,115 D174,194 D177,982 D181,626 2,963,022 3,026,875 3,036,574 D211,231 3,454,013 D234,649 D239,475 4,916,755 A S S S S S S S A A A 12/1951 10/1953 2/1955 3/1955 3/1955 3/1955 6/1956 12/1957 12/1960 3/1962 5/1962 6/1968 7/1969 4/1975 4/1976 4/1990 Cadous Kahn Goldstein Dior Dior Prochaska Kahn Cassini Spetalnik Kaupp Nellie Sallysy Cahill Cascio Cascio Feigenbaum eta!. 5,915,531 6,000,993 D452,600 D453,058 D453,255 6,430,748 D556,978 D595,480 2007/0094765 2008/0078208 2008/0134409 2008/0229474 2008/0244805 A A S S S B1 S S A1 A1 A1 A1 A1 6/1999 12/1999 1/2002 112002 212002 8/2002 12/2007 7/2009 5/2007 4/2008 6/2008 9/2008 10/2008 Hilpert et a!. Erwin Kim Kim et al. Kim et al. Burkhart Thunstedt et al. Giugliano Summers eta!. Kronbach Karasina Fons et a!. Griffin

s
A

s s
A

FOREIGN PATENT DOCUMENTS
JP JP

2007-146337 2007-303002

6/2007 1112007

Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 34 of 73

U.S. Patent

Aug. 31, 2010

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Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 41 of 73

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United States Design Patent
Schindler
GARMENT Inventor: Heather Thomson Schindler, New York, NY (US)

(10) (45)

Patent No.: Date of Patent:

US D623,377 S

** Sep. 14, 2010

(54) (75)

2,579,547 A D170,694 S

12/1951 Cadous 10/1953 Kalm

(Continued) (73) Assignee: Times Three Clothier, LLC, New York, NY (US) Term: 14 Years
JP

FOREIGN PATENT DOCUMENTS
2006-316359 1112006

(**) (21) (22)

Appl. No.: 29/362,414 Filed: May25, 2010 Related U.S. Application Data

(Continued) Primary Examiner-Philip S Hyder Assistant Examiner-Anna J Burmeister (74) Attorney, Agent, or Firm-Stroock & Stroock & Lavan LLP (57) CLAIM

(63)

Continuation of application No. 29/350,198, filed on Nov. 12, 2009, now Pat. No. Des. 616,627, which is a continuation of application No. 29/302,500, filed on Jan. 17, 2008, now Pat. No. Des. 606,285. LOC (9) Cl. . ... ... ... ... .. ... ... ... ... ... .. ... ... ... ... .. ... . 02-01 U.S. Cl. ....................................................... D2/700 Field of Classification Search .......... D2/700-703, D2/731, 732,828,840,718,737,847, 714; 2/112, 113, 69; 450/96, 94, 115, 116, 122-124, 450/127, 132, 154, 10, 15, 30 See application file for complete search history. References Cited U.S. PATENT DOCUMENTS
357,068 570,696 1,683,510 1,774,613 1,931,822 1,977,329 2,052,784 2,052,935 Dll0,662 D128,536 D129,078 D129,894 2,310,103 D152,981 A A A A A A A A S S S S A S 2/1887 1111896 9/1928 9/1930 10/1933 10/1934 9/1936 9/1936 7/1938 7/1941 8/1941 10/1941 2/1943 3/1949 Dalby Brown Wiese Pidgeon Hoffman Clarke Martin Moran Rielly Wei! Monteil Abeles McDonald Kaupp

(51) (52) (58)

The ornamental design for a garment, as shown and described herein. DESCRIPTION FIG. 1 is a front elevation view of Embodiment 1, of a garment; FIG. 2 is a rear elevation view thereof; FIG. 3 is a right elevation view thereof; FIG. 4 is a left elevation view thereof; FIG. 5 is a right side elevation view of Embodiment 2, of a garment, where the front and rear elevation views are the same as FIGS. 1-2; and, FIG. 6 is a left elevation view of Embodiment 2, of a garment. The phantom and/or broken lines are for illustrative purposes only and form no part of the claimed design. The broken lines depicting the stitching shown in the drawings are for environmental structure only and form no part of the claimed design. The broken lines depicting the human form shown in the drawings are for environmental structure only and form no part of the claimed design. 1 Claim, 6 Drawing Sheets

(56)

Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 42 of 73

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Page 2 U.S. PATENT DOCUMENTS
D174,038 D174,114 D174,115 D174,194 D177,982 D181,626 2,963,022 3,026,875 3,036,574 D211,231 3,454,013 D234,649 D239,475 4,916,755 5,915,531 S S S S S S A A A 2/1955 3/1955 3/1955 3/1955 6/1956 12/1957 12/1960 3/1962 5/1962 6/1968 7/1969 4/1975 4/1976 4/1990 6/1999 Goldstein Dior Dior Prochaska Kahn Cassini Spetalnik Kaupp Nellie Sallysy Cahill Cascio Cascio Feigenbaum eta!. Hi! pert et a!. 6,000,993 D452,600 D453,058 D453,255 6,430,748 D556,978 D595,480 2007/0094765 2008/0078208 2008/0134409 2008/0229474 2008/0244805 A S S S B1 S S A1 A1 A1 A1 A1 12/1999 1/2002 112002 212002 8/2002 12/2007 7/2009 5/2007 4/2008 6/2008 9/2008 10/2008 Erwin Kim Kim et al. Kim et al. Burkhart Thunstedt et al. Giugliano Summers eta!. Kronbach Karasina Fons et a!. Griffin

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Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 43 of 73

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FIG. 1

Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 44 of 73

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Sep.14,2010

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FIG. 2

Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 45 of 73

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Sep.14,2010

Sheet 3 of 6

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FIG. 3

Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 46 of 73

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Sep.14,2010

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FIG. 4

Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 47 of 73

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Sep.14,2010

Sheet 5 of 6

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FIG. 5

Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 48 of 73

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Sep.14,2010

Sheet 6 of 6

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FIG. 6

Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 49 of 73

Exhibit 5

Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 50 of 73

USOOD665558S

(12)

United States Design Patent
Schindler
GARMENT
Inventor:

(IO)
(45)

Patent No.: Date of Patent:

US D665,558 S
** *Aug. 21, 2012

(54)
(75)

OTHER PUBLICATIONS
Left-hand image on Contents page, "Self' magazine, Jan. 2006 issue. (2 pages).*

Heather Thomson Schindler, New York, NY (US)

(73)

Assignee: Times Three Clothier, LLC, New York, NY (US) Notice: This patent is subject to a terminal disclaimer.

(Continued)

(*)

Primary Examiner Karen E. Eldridge Powers (7 4) Attorney, Agent, or Firm Stroock & Stroock & Lavan LLP

(**) (21) (22)

Term:

14 Years
(57) CLAIM The ornamental design for a garment, as shown and described herein.

Appl. No.: 29/350,288 Filed:

Nov. 13, 2009 Related U.S. Application Data

(60)

Division of application No. 29/302,500, filed on Jan. 17, 2008, now Pat. No. Des. 606,285, and a division of application No. 29/350,198, filed on Nov. 12, 2009, which is a continuation of application No. 29/302,500.

DESCRIPTION
This application is related to co-pending U.S. Design Application 29/350,290, filed on Nov. 13, 2009, the contents of which are hereby incorporated by reference. FIG. 1 is a front elevation view of Embodiment 1, of a garment; FIG. 2 is a rear elevation view thereof; FIG. 3 is a right elevation view thereof; FIG. 4 is a left elevation view thereof; FIG. 5 is a right side elevation view of Embodiment 2, of a garment, where the front and rear elevation views are the same as FIGS. 1-2; and, FIG. 6 is a left elevation view of Embodiment 2, of a garment. The sleeves are not shown in PIGS. 3-6 for ease of illustration. The center section and lower section of the claimed design is shaded to illustrate a different appearance. The dashed broken lines shown in the drawings illustrate environmental features that form no part of the claimed design. The dash-dot-dotdash broken lines shown at the junction of the bodice with the sleeve and the interior of the bodice represent the bounds of the design and form no part of the claimed design. The broken lines shown in the drawings are for environmental structure only and form no part of the claimed design.

(51) (52) (58)

LOC (9) Cl. .................................................. 02-01 U.S. Cl. .... ... .. ... ... ... ... ... .. ... ... ... ... .. ... ... ... ... ... . D2/701 Field of Classification Search .... ... ... . D2/700-703, D2/706, 708,731,732,828,840,718,737, D2/847, 714,800,717,723,756, 793,841; 450/96,94,115,116,122-124,127,132, 450/154,10,15,30,112, 1,3, 7, 11,20, 450/31, 34, 63, 64, 86, 95; 2/112, 113, 69, 2/67, 70, 73, 78.1, 78.2, 78.3, 104, 105, 109, 2/110; 66/176 See application file for complete search history. References Cited
U.S. PATENT DOCUMENTS
26,473 A

(56)

*

12/1859 Brown ............................ 450/95

(Continued) FOREIGN PATENT DOCUMENTS
DE 8513103.2 5/1985

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Page2
U.S. PATENT DOCUMENTS
240,569 357,068 432,442 445,945 570,696 672,028 839,699 933,739 1,007,047 1,088,371 1,110,749 1,121,005 1,191,865 1,249,446 1,323,748 1,342,188 1,587,099 1,683,510 1,770,615 1,774,613 1,777,215 1,813,043 1,828,310 1,886,049 1,894,062 1,897,619 1,899,022 D91,329 1,931,822 1,953,797 1,977,329 RE19,380 2,000,073 2,033,456 2,035,377 2,040,058 2,040,561 2,052,784 2,052,935 2,076,748 2,097,777 2,098,881 2,098,882 D110,662 2,190,030 D128,536 D129,078 D129,894 2,274,382 2,310,103 2,335,751 2,579,547 D170,694 D174,038 D174,114 D174,115 D174,194 D174,329 2,723,396 D177,982 D181,626 2,963,022 D191,347 3,026,875 3,036,574 3,060,446 3,066,675 3,217,713 D211,231 3,421,513 3,422,818 3,454,013 3,479,844 3,556,106 3,582,993 3,683,910 D224,700 3,699,590 A A A A A A A A A A A A A A A A A A A A A A A A A A A S A A A E A A A A A A A A A A A S A S S S A A A A S S S S S S A S S A S A A A A A S A A A A A A A S A * 4/1881 Appleton . .. . ... .. . ... .. . .... .. . . 66/176 * 2/1887 Dably ............................. 66/176 * 7I 1890 Sanford ... ... ... ... ... ... .... ... ... 21113 * 2/1891 Bohne ............................. 66/176 * 1111896 Brown . .... ... ... ... ... ... .... ... . 66/1 7 6 * 4/1901 Appleton . ... ... ... ... ... .... ... . 66/176 * 12/1906 Anderson ........................... 2/67 * 9/1909 Bodensiek ........................ 450/7 * 10/1911 Albers et al. ... ... ... ... .... ... ... 21109 * 2/1914 Rossiter .......................... 450/94 9/1914 De Blieux 12/1914 Farnsworth 7/1916 Workman 12/1917 Mell * 12/1919 Gitenstein ........................ 2/78.3 * 6/1920 Jacob ... .... ... ... ... ... ... .... ... .. 2/78.1 * 6/1926 Williams . ... ... ... ... .... ... ... .. 2/78.2 * 9/1928 Carl ................................ 450/20 * 7I 1930 Herlich .... ... ... ... ... ... .... ... ... .. 2/67 * 9/1930 Pidgeon .......................... 450/20 9/1930 McGill 7/1931 Foreman * 10/1931 Bergh .. .... ... ... ... ... ... .... ... ... .. 2/67 1111932 Rothblum * 111933 Schrank .............................. 2/73 * 211933 Powell ................................ 2/67 * 211933 Duisdieker ......................... 2/67 5/1933 Redman * 10/1933 Hoffman ......................... 450/95 * 4/1934 Daniel . .... ... ... ... ... ... .... ... ... .. 2/67 * 10/1934 Tobin ................................ 2/113 * 1111934 Craig ... .... ... ... ... ... ... .... ... .. 2/7 8.2 * 511935 Goas ............................... 66/176 3/1936 Cunningham * 3/1936 Redmond ... ... ... ... ... .... ... ... 21111 * 511936 Craig ... .... ... ... ... ... ... .... ... . 66/176 * 511936 Ernst ............................... 450/34 * 9/1936 Charles ........................... 66/176 * 9/1936 Moran ............................ 450/10 4/1937 Schweig 1111937 Rothman * 1111937 Robbins .......................... 450/27 * 1111937 Robbins .......................... 450/27 * 7/1938 Rielly ............................ D2/714 2/1940 Kops * 7I 1941 Weil .. ... .... ... ... ... ... .... ... ... D2/702 * 8/1941 Monteil ... ... ... ... ... .... ... ... D2/800 * 10/1941 Abeles ........................... D2/703 2/1942 Richman * 2/1943 McDonald ........................ 2/113 1111943 Friedman * 12/1951 Cadous ......................... 450/112 * 10/1953 Kahn ............................. D2/702 * 211955 Goldstein ...................... D2/702 * 3/1955 Dior ............................... D2/702 * 3/1955 Dior ............................... D2/703 * 3/1955 Prochaska ...................... D2/702 * 3/1955 Katz .............................. D2/700 * 1111955 Stack .............................. 450/58 * 6/1956 Kahn ............................. D2/702 * 12/1957 Cassini .......................... D2/800 * 12/1960 Spetalnik ........................ 450/15 9/1961 Herman * 3/1962 Kaupp .......................... 450/116 * 511962 Jeffrey ............................ 450/30 10/1962 Horne 12/1962 Herman 4/1964 Kunel * 6/1968 Sallasky ... ... ... ... ... ... .... ... D2/702 111969 Landau 111969 Erteszek * 7/1969 Cahill ........................... 450/116 1111969 Silvain 111971 Rosner 6/1971 Keller * 8/1972 McKenna ... ... ... ... ... .... ... . 602/68 * 9/1972 Bienefeld ... ... ... ... ... .... ... D2/700 10/1972 Webber et al. D234,649 D239,475 3,949,426 4,377,007 4,916,755 4,976,653 5,083,316 5,094,648 5,461,725 5,566,392 5,605,060 D391,740 5,915,531 6,000,993 6,061,832 6,185,741 6,282,720 D452,600 D453,058 D453,255 6,430,748 D476,464 6,846,217 D556,978 7,395,557 D595,480 7,905,117 2006/0242748 2007/0094765 2008/0134409 2008/0229474 2008/0244805 S * S * A A A * A A A A A A S A * A * A B1 B1 * S * S * S * B1 * S B1 S * B1 S * B2 * A1 A1 * A1 * A1 * A1 * 4/1975 4/1976 4/1976 3/1983 4/1990 12/1990 111992 3/1992 10/1995 10/1996 211997 3/1998 6/1999 12/1999 5/2000 2/2001 9/2001 112002 112002 2/2002 8/2002 7/2003 112005 12/2007 7/2008 7/2009 3/2011 1112006 5/2 007 6/2008 9/2008 10/2 008 Cascio ........................... D2/703 Cascio ........................... D2/702 George Sudjian Feigenbaum et al. .............. 2/67 White Kuehner Turner Witczak Dzelzkalns Osborne Barrington et al. Hilpert et al. .. .... ... ... ... ... ... .. 2169 Erwin ............................... 450/7 Morrison Kehoe Mayer ............................... 2/113 Kim ... ... ... ... ... .... ... ... ... ... D2/702 Kim ... ... ... ... ... .... ... ... ... ... D2/703 Kim ... ... ... ... ... .... ... ... ... ... D2/702 Burkhart .. ... ... .... ... ... ... ... .. 2/78.1 Jenkins Struble et al. Thunstedt ...................... D2/847 Ledyard Giugliano ... ... .... ... ... ... ... D2/702 Kronback ... ... .... ... ... ... ... . 66/176 Martz Summers et al. .. ... ... ... ... ... 21113 Karasina .. ... ... .... ... ... ... ... ... 21117 Fons et al. ... ... .... ... ... ... ... ... 21113 Griffin .. ... ... ... .... ... ... ... ... ... .. 2/74

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DE EP EP EP EP EP EP EP EP EP GB GB GB GB GB JP JP JP JP JP JP JP JP JP JP JP 202005000716 0174179 0774241 1082951 1125566 000385562-0106 000454202-0027 000454202-0121 0006337 55-0027 000730403-0023 116526 212307 1603600 3020687 4004524 2-82707 2001-172806 2002-138302 2003-129303 2005-281893 2006-316359 2006-316359 2007-146337 2007-146337 2007-303002 2008-156812 96/08217 01175201 lJ1 4/2005 3/1986 5/1997 3/2001 8/2001 7/2005 12/2005 12/2005 12/2006 5/2007 6/1918 3/1924 1111981 7/2005 10/2007 6/1990 6/2001 5/2002 A 5/2003 A 10/2005 * 1112006 A 1112006 * 6/2007 A 6/2007 * 1112007 A 7/2008 3/1996 10/2001

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OTHER PUBLICATIONS
Cover and ad page picturing Serena Williams, "Lucky" magazine, Oct. 2003. (2 pages).* Mila Kunis Magazine Cover, [on-line]; [downloaded from the Internet on May 5, 2012]; [cover identified is for Oct. 2003 issue]; lJRL: <http://www.whosdatedwho.com/tpx_1783/mila-kunis/ magazinecovers_13>. (4 pages).* Yummie Tummie and Maidenform Settle Patent Infringement and Invalidity Lawsuits, Fox News 44, PR N ewswire (20 11 ). http://www. fox44now.com/story/15242333/yummie-tummie-and-maidenformsettle-patent-infringement-and-invaliditylawsuits?clienttype=printable printed Aug. 12, 2011. Maidenform Brands, Inc. Reports Second Quarter 2011 Results and Provides Guidance for Full Year 2011, News Releases--General News, Iselin, NJ /PRNewswire via COMTEX/ Aug. 10, 2011.

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US D665,558 S
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Associated Press, "Maidenform 2Q net income drops on settlement,'~ Forbes.com (Aug. 10, 2011 ). http://www.forbes.com/feeds/ap/20 111 08/1 0/business-specialized-consumer-services-us-earnsmaidenform_8611962.html?partner=email printed Aug. 12, 2011. Maidenform's Responses and Objections to TTC's First Set of Request for Production of Documents (Nos. 1-144) Aug. 24,2010. Maidenform's Second Set of Requests for the Production of Documents and Things (Nos. 78-123) Sep. 3, 2010. Maidenform's Second Set of Interrogatories (Nos. 16-17) Sep. 3, 2010. Maidenform's First Supplemental Responses and Objections to TTC's First Set of Interrogatories Sep. 10, 2010. TTC's Responses to Maidenform's Second Set of Requests for Production (Nos. 78-123)---0ct. 12, 2010. TTC's Written Responses to Maidenform's Second Set oflnterrogatories (Nos. 16-17). San Francisco Chronicle article MFOOO 12401242. Women's Wear Daily article MF0001087-1088. Oct. 12, 2010. Maidenform's Responses and Objections to TTC's Supplemental First Set of Interrogatories (Nos. 1A-18A) Nov. 2010. Donner's Objections to Maidenform's Request for Production of Documents Included in the Subpoena to I. Donner Feb. 22, 2011. lA Nike Fly Lightweight + Women's Sports Top, Nike, http:// clothing-and-accessories.become.com/nike-fly-lightweightwomens-sports-top-com ... (URL is incomplete) received by Applicant Aug. 24, 2010. 2A Pretty Shapewear Camisole, SassyBax, www.sassybax.com/ pretty-camisole.php received by Applicant Aug. 24, 2010. 3A Underwire Torso Trim, SassyBax, www.sassybax.com/ underwire trim.php received by Applicant Aug. 24, 2010. 4A The Torso Trim, SassyBax, www.sassybax.com/torso_trim. php received by Applicant Aug. 24, 2010. 5A Belly Bra, JCPenney, www.jcpenney.com/jcp/X6. aspx?DeptiD=51669&CatiD=51669&Grptyp=Siz&Item ... (URL is incomplete) received by Applicant Aug. 24,2010. 6A Secret Sculptor Tunic, Shape Fx, www.shapefx.com/store/ Shapewear_Shop_by_Category_Camis_Tanks_Se . . . (URL is incomplete) received by Applicant Aug. 24, 2010. 7 A The Skinny, www.skinnycami.biz/files/ received by Applicant Aug. 24, 2010. 8A Slimplicity Lingerie Strap Camisole, Spanx, www.spanx.com/ product/index.jsp?productld=3977353&cp=2992553.40 15964&par ... (URL is incomplete) received by Applicant Aug. 24, 2010. 9 A Hide & Sleek Cami, Spanx, http://web.archive.org/ ...(URL is incomplete) received by Applicant Aug. 24, 2010. lOA Hide & Sleek Full Slip 18 Inch 060A, Spanx, www.herroom. com/Spanx-060A-Hide-Sleek-Full-Slip-18-Inch.shtml received by Applicant Aug. 24, 2010. llA Teez-Her The Skinny Tank, Teez-Her, www.essentialapparel. com/index.cfm/a/catalog.prodshow/vid/72638/catid/267/Teez . . . (URL is incomplete) received by Applicant Aug. 24,2010. 12A Cami-Rolls, http://camirolls.com/shop.shtml received by Applicant Aug. 24, 2010. 13A TummyTee, www.redefyne.com/tummytee.html received by Applicant Aug. 24, 2010. 14A Champion Seamless Empire Top with Built-In Sports Bra, Champion, www.championusa.com/Champion/Products/WomenChampion/Women_ShopByCa ... (URL is incomplete) received by Applicant Aug. 24, 2010. 15A Cosabella Smooth Bodyshaper Cami SHPE702, CosaBella, www.herroom.com/Cosabella-Shpe702-Smooth-BodyshaperCami.shtml received by Applicant Aug. 24, 2010. 16A Daisy Fuentes Slimming Camisole, Kohls, www.kohls.com/ upgrade/webstore/product_page.j sp?Product%3C %3Eprd_id=8 received by Applicant Aug. 24, 2010. 17A 582L Countouring Balconet Bra Cami-Long Torso, Dumi Shapewear, www.du-mi.com/store/product-info.php?pidl2.html received by Applicant Aug. 24, 2010. 18A Very Precious, Great Glam, http://greatglam.com/pd-veryprecious.cfm received by Applicant Aug. 24, 2010. 19A Sensual Charm, Great Glam, http://greatglam.com/pd-sensual-charml.cfm received by Applicant Aug. 24, 2010. 20A Yalof Schwartz, Suze, "Too Busy for the Gym?'~ Glamour, www.glamour.com/fashion/blogs/slaves-to-fashion/2007 I 10/toobus ... (URL is incomplete) received by Applicant Aug. 24, 2010. Page shown present on Internet approximately Oct. 2007. 21A Underwire Torso Trim, Sassybax, http://webarchive.orglweb/ 20071020033219/sassybax.com received by Applicant Aug. 24, 2010. Page shown present on Internet on Oct. 20, 2007. 22A Nancy Ganz The Belly Band Convertible Bodybriefer 3313, Nancy Ganz, www.herroom.com/NancyGanz ... (URL is incomplete) received by Applicant Aug. 24, 2010. Page shown present on Internet on Nov. 25, 2007. 23A Spanx Hide & Sleek Full Slip 060A, Spanx, www.herroom. com/Spanx-Hide ... (URL is incomplete) received by Applicant Aug. 24, 2010. Page shown on Internet on Nov. 1, 2007. 24A Spanx Hide & Sleek Cami 050, Spanx, www.herroom.com/ Spanx ... (URL is incomplete) received by Applicant Aug. 24, 2010. Page shown present on Internet on Oct. 30, 2007. 25Aa, 25Ab. 25Ac-Collection of Photographs received by Applicant on Dec. 8, 2010 received by Applicant Aug. 24,2010. 26A Alleged Ann Mason Receipt; Nov. 26, 2006. 27Aa, 27Ab Declaration of Ann Mason; May 19,2007. 28A Yummie Tummie and Maidenform Settle Patent Infringement and Invalidity Lawsuits, Fox News 44, PR Newswire (2011). http:// www.fox44now.com/story/ 15242333/yummie-tummie-andmaidenform-settle-patent-infringement-and-invaliditylawsuits?clienttype=printable printed Aug. 12, 2011. 29A Maidenform Brands, Inc. Reports Second Quarter 20 11 Results and Provides Guidance for Full Year 2011, News ReleasesGeneral News, Iselin, NJ /PRNewswire via COMTEX/ Aug. 10, 2011. 30A Associated Press, "Maidenform 2Q net income drops on settlement," Yahoo News (Aug. 10, 2011 ). http:/I news.yahoo.com/ maidenform-2q-net-income-drops-settlement-125621767 .htmlprintedApr. 20, 2012. 1 Email from Christine Conforte to Heather Schindler "FW: Tummy Tee," sent Dec. 1, 2006. 2 Email from Christine Conforte to Heather Schindler "Liz Lange," sent Dec. 13, 2006. 3 Email from Heather Schindler to Chistine Conforte "Liz Lange," sent Dec. 13, 2006. 4 Email from Christine Conforte "Liz Lange," sent Dec. 11, 2006. 5 Email from Heather Schindler to Christine Conforte "Liz Lange," sent Dec. 9, 2006. 6 Email from Christine Conforte to Heather Schindler "Liz Lange," sent Dec. 7, 2006. 7 Email from Heather Schindler to Christine Conforte "Liz Lange," sent Dec. 7, 2006. 8 Email from Christine Conforte to Heather Schindler, "Liz Lange," sent Dec. 6, 2006. 9 Email from Heather Schindler to Liz Lange copying Michelle Mooring and Christine Conforte, "Follow Up," sent Jan. 24, 2007. 10 Email from Liz Lange to Heather Schindler copying Christine Conforte and Michelle Mooring, "Follow Up," sent Jan. 23, 2007. 11 Email from Heather Schindler to Liz Lange copying Christine Conforte and Michelle Mooring, "Follow Up," sent Jan. 23, 2007. 12 Email from Liz Lange to Heather Schindler copying Christine Conforte "Follow Up," sent Jan. 19, 2007. 13 Email from Heather Schindler to Christine Conforte copying Michelle Mooring "FW: TummyTube,'~ sent Jan. 31, 2007. 14 Email from Christine Conforte to Heather Schindler copying Liz Lange "Tummy Tube," sent Jan. 30, 2011. 15 Email from Heather Schindler to Liz Lange copying Michelle Mooring and Christine Conforte "TummyTube," sent Feb. 6, 2007. 16 Email from Liz Lange to Heather Schindler and Christine Conforte "TummyTube,'~ sent Feb. 2, 2007. 17 Email from Heather Schindler to Christine Conforte copying Liz Lange "TummyTube," sent Feb. 2, 2007. 18 Email from Christine Conforte to Heather Schindler copying Liz Lange "TummyTube," sent Jan. 30, 2007. 19 "Style Spy," Lucky Magazine, p. 26, Jan. 2002 issue. 20 LeCove swimwear catalog, p. 26 received by Applicant Aug. 24, 2010.

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21 JC Penney maternity catalog, p. 165 received by Applicant Aug. 24, 2010. 22 WWD Intimates catalog, cover received by Applicant Aug. 24, 2010. 23 "Fashion Q & A,'' Shape Magazine, p. 68. Jan. 2008 issue. 24 Vogue Magazine, vol. 15, cover received by Applicant Aug. 24, 2010. 25 "Self Selects," Self Magazine, p. 162. Jun. 2000 issue. 26 "Do good while you shop," Lucky Magazine, p. 286. Oct. 2006
ISSUe.

27 "Photo Finish," WWD Intimates catalog. 2006. 28 "Shapewear Report," In Style Magazine, pp. 338-346. Sep. 2007 issue. 29 Self Magazine advertisements. Jun. 2007 issue. 30 Self Magazine, p. 33. Dec. 2007 issue. 31 "My best stress bust is ... ," Self Magazine, p. 200. Apr. 2002
ISSUe.

32 Times Three Clothier, LLC Sales Order No. 1000, Sales Order Date Apr. 30, 2007. 33 Email from Ivan A. Saperstein to Heather Schindler copying Michelle Mooring and J. Schindler "Gatsby's" sent Jul. 20, 2007. 34 Email from Heather Schindler to Ivan A. Saperstein copying Michelle Mooring and J. Schindler "Gatsby's" Jul. 20, 2007. 3 5 Email from Ivan A. Saperstein to Michelle Mooring, Heather Schindler and J. Schindler "Gatsby's" Jul. 20, 2007. 36 Invoice billed and shipped to Seams Beautiful-Carolyn Weaver, Invoice# 00006138, Aug. 11, 2006. 37 Invoice billed and shipped to Seams Beautiful-Carolyn Weaver, Invoice# 00006155, Aug. 25, 2006. 38 Packing Slip to Seams Beautiful, Aug. 25, 2006. 39a, 39b, 39c, 39d, 39e, 39f, 39g, 39h, 39i Maidenform v. Times Three Clothier LLC d/b/a Yummie Tummie, Case No. 10-cv-1661 (GBD) SkinnyCami Declarations. pp. 1-118 (submitted in 9parts) received by Applicant Dec. 14, 2010. 40 Applicant's Specifications. pp.1-3 (submitted in 1 part) dated May 24, 2007 -Jun. 11, 2007.

41 Maidenform's Initial Disclosures Jul. 9, 2010. pp. 1-13 (submitted in 1 part). 42 Maidenform's Responses and Objections to TTCc's First Set of Interrogatories (Nos. 1-18) Aug. 24,2010. pp. 1-12 (submitted in 1 part). 43 Skinny Camisole Slimmer Corset Shaper Girdle, http://co 103w. co1103.mail.live.com/mail/RteTrame_15.1.3059.0405.html?pf pf (URL is incomplete). Pages 1-3 (submitted in 1 part) received by Applicant Aug. 24, 2010 . 44a, 44b, 44c Applicant's Tummy Tees. pp. 1-3 (submitted in 3 parts). 6Ba is Applicant's Tummy Tee early prototype sewn in Feb./ Mar. 2005. 6Bb and6Bc are photos ofApplicant's production sample first received May 30, 2007. 45---Gazelle Sleeveless Long Shirt, Adidas, www.shopadidas.com/ product/index.j sp?productiD=3847890&v2=y&cp=374817 5.3 . . . (URL is incomplete) received by Applicant Aug. 24,2010 . 46 Super Soft Slimmer Tank, MyShape, www.myshape.com/shop/ style/ 11906?ci_sku= 11906&utm_source ... (URL is incomplete) received by Applicant Aug. 24, 2010. 47 Ann Michell Spaghetti Strap Tank Top Style 982, Lauren Silva, www.laurensilva.com/Ann_Michell_Spaghetti_Strap_Camisole_Control_Shirt_p/an ... (URL is incomplete) received by Applicant Aug. 24, 2010. 48 New Marilyn Monroe Smoothing Camisole 7762, ebay, www. cgi.ebay.com/New-Marilyn-Monroe-Smoothing-Camisole-7762-28 . .. (URL is incomplete) received by Applicant Aug. 24,2010. 49 Nancy Ganz The Belly Band Convertible Bodybriefer 3313, Her Room, www.herroom.com/Nancy-Ganz-3313-The-Belly-BandConvertible-Bodyvriefer.sht ... (URL is incomplete) received by Applicant Aug. 24, 2010. 50 Nike Seamless Airborne Women's Long Tank Top, Nike, http:// store.nike.com/us/en_us/?l=shop,pdp,ctr-inline/cid-1/pid-282277/ pgid-238467 received by Applicant Aug. 24, 2010.

* cited by examiner

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Aug. 21, 2012

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Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 60 of 73

Exhibit 6

Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 61 of 73

USOOD666384S

(12)

United States Design Patent
Schindler
GARMENT
Inventor:

(IO)
(45)

Patent No.: Date of Patent:

US D666,384 S

**

Sep. 4, 2012

(54)
(75)

OTHER PUBLICATIONS
Left-hand image on Contents page, "Self' magazine, Jan. 2006 issue. (2 pages).*

Heather Thomson Schindler, New York, NY (US)

(73)

Assignee: Times Three Clothier, LLC, New York, NY (US) Term:

(Continued)

(**) (21) (22)

14 Years

Primary Examiner Karen E Eldridge Powers (7 4) Attorney, Agent, or Firm Stroock & Stroock & Lavan LLP

Appl. No.: 29/392,830 Filed:

May 26, 2011 Related U.S. Application Data

(57) CLAIM I claim the ornamental design for a garment, as shown and described.

(60)

Continuation of application No. 29/350,290, filed on Nov. 13, 2009, now abandoned, which is a division of application No. 29/302,500, filed on Jan. 17, 2008, now Pat. No. Des. 606,285, said application No. 29/392,830 is a continuation of application No. 29/350,288, filed on Nov. 13, 2009, which is a division of application No. 29/302,500.

DESCRIPTION
This application is related to the following applications: U.S. Design application Ser. No. 29/362,414, filed on May 25, 2010 now U.S. Pat. No. D623,377, U.S. Design application Ser. No. 29/362,498, filed on May 26, 2010 now U.S. Pat. No. D622,477, U.S. Design application Ser. No. 29/350,198, filed on Nov. 12, 2009 now U.S. Pat. No. D616,627, the contents of each of the above applications are hereby incorporated by reference. FIG. 1 is a front elevation view of embodiment 1, of a garment; FIG. 2 is a rear elevation view thereof; FIG. 3 is a right elevation view thereof; FIG. 4 is a left elevation view thereof; FIG. 5 is a right side elevation view of embodiment 2, of a garment, where the front and rear elevation views are the same as FIGS. 1-2; and, FIG. 6 is a left elevation view of embodiment 2, of a garment. The dashed broken lines depicting stitching and the human form shown in the drawings are for environmental structure only and form no part of the claimed design. The dash-dotdot-dash broken lines shownatthejunctionofthe bodice with the sleeve and the interior of the bodice represent the bounds of the design and form no part of the claimed design.

(51) (52) (58)

LOC (9) Cl. .................................................. 02-01 U.S. Cl. .... ... .. ... ... ... ... ... .. ... ... ... ... .. ... ... ... ... ... . D2/701 Field of Classification Search ................... D2/700, D2/701, 702,703,706, 708, 714, 717, 718, D2/723, 731, 732, 756, 793, 800, 828, 840, D2/841, 847; 2/67, 69, 70, 73, 78.1, 78.2, 2/7 8 .3' 104' 10 5' 109' 11 0' 112' 113; 6 6/ 17 6; 450/1,3, 7, 10, 11, 15,20,30,31,34,63, 450/64,86,94,95,96,112,115,116,122, 450/123, 124, 127, 132, 154 See application file for complete search history. References Cited
U.S. PATENT DOCUMENTS
357,068 A 2/1887 Dalby

(56)

(Continued) FOREIGN PATENT DOCUMENTS
DE G8513103.2 8/1985

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Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 62 of 73

US D666,384 S
Page2
U.S. PATENT DOCUMENTS
570,696 709,200 933,739 1,110,749 1,121,005 1,191,865 1,249,446 1,683,510 1,774,613 1,777,215 1,813,043 1,886,049 D91,329 1,931,822 1,977,329 2,033,456 2,040,058 2,040,657 2,052,935 2,076,748 2,097,777 D110,662 D111,201 2,190,030 D128,536 D129,894 2,274,382 2,310,103 2,335,751 2,579,547 D170,694 D174,038 D174,114 D174,115 D174,194 D177,982 2,963,022 2,976, 708 D191,347 3,026,875 3,036,574 3,060,446 3,066,675 3,217,713 D211,231 3,421,513 3,422,818 3,454,013 3,479,844 3,490,449 3,556,106 3,582,993 3,699,590 D234,649 D239,475 3,949,426 4,377,007 4,916,755 4,976,653 5,083,316 5,094,648 5,461,725 5,566,392 5,605,060 5,667,422 D391,740 D393,736 5,772,492 5,915,531 6,000,993 6,061,832 6,185,741 D452,600 D453,058 D453,255 6,430,748 D476,464 6,766,533 A A A A A A A A A A A A S A A A A A A A A S S A S S A A A A S S S S S S A A S A A A A A S A A A A A A A A S S A A A A A A A A A A S S A A A A B1 S S S B1 S B1 * 1111896 9/1902 9/1909 9/1914 12/1914 7/1916 12/1917 9/1928 9/1930 9/1930 7/1931 1111932 5/1933 10/1933 10/1934 3/1936 5/1936 5/1936 9/1936 4/1937 1111937 7/1938 9/1938 2/1940 7/1941 10/1941 2/1942 2/1943 1111943 12/1951 10/1953 2/1955 3/1955 3/1955 3/1955 6/1956 12/1960 3/1961 9/1961 3/1962 5/1962 10/1962 12/1962 1111965 6/1968 111969 111969 7/1969 1111969 111970 111971 6/1971 10/1972 4/197 5 4/1976 4/1976 3/1983 4/1990 12/1990 111992 3/1992 10/1995 10/1996 211997 9/1997 3/1998 4/1998 6/1998 6/1999 12/1999 5/2000 2/2001 112002 112002 2/2002 8/2002 7/2003 7/2004 Brown Buckley ... ... ... ... ... ... .... ... ... .. 2/73 Bodensiek De Blieux Farnsworth Workman Mell Wiese ............................. 450/20 Pidgeon McGill Foreman Rothblum Redman Hoffman Tobin Cunningham Mendel et al. Kops et al. .................... 139/421 Moran Schweig Rothman Rielly !merman ........................ D2/723 Kops Weil Abeles Richman McDonald Friedman ............................ 2/73 Cadous Kahn Goldstein Dior Dior Prochaska Kahn Spetalnik Gordon ........................... 66/176 Herman Kaupp Jeffrey Horne Herman Kunel Salisky Landau Erteszek Cahill Silvain Ewehvahn .................... 450/155 Rosner Keller Webber et al. Lo Cascio LoCascio George Sudjian Feigenbaum et al. White Kuehner Turner Witczak Dzelzkalns Osborne Erwin ............................. 450/30 Barrington et al. Rubin .. .... ... ... ... ... .... ... ... D2/717 Erwin ............................. 450/30 Hilpert et al. Erwin Morrison Kehoe Kim Kim Kim Burkhart Jenkins Meier et al. . ... ... ... ... .... ... ... .. 2/67 6,846,217 D521,712 7,115,015 7,181,775 D556,978 7,395,557 D595,480 RE41,654 7,878,881 7,900,276 D644,411 D644,412 200110054303 2004/0163159 2006/0242748 2007/0094765 2007/0118062 2008/0078208 2008/0134409 2008/0244805 2009/0299258 201110061147 B1 S * B2 * B2 * S B1 S E * B2 * B2 * S * S * A1 * A1 * A1 A1 A1 * A1 * A1 A1 A1 * A1 * 112005 5/2006 10/2006 2/2007 12/2007 7/2008 7/2009 9/2010 2/2011 3/2011 9/2011 9/2011 12/200 1 8/2004 1112006 5/2007 5/2 007 4/2008 6/2008 10/2008 12/2009 3/2011 Struble et al. Overby . ... ... ... .... ... ... ... ... D2/717 Horii et al. ...................... 450/33 Carney .. ... ... ... .... ... ... ... ... ... 2/311 Thunstedt Ledyard Giugliano Struble et al .................... 450/31 Hendrickson ................... 450/36 Hendrickson et al ............. 2/237 Guerrier .. ... ... ... .... ... ... ... D2/703 Reuther ... ... ... .... ... ... ... ... D2/714 Browder, Jr. ... ... .... ... ... ... . 66/1 71 Edwards et al. .................. 2/338 Martz Summers et al. Fleck . ... ... ... ... .... ... ... ... ... . 60 2/7 5 Kronbach ... ... .... ... ... ... ... . 66/171 Karasina Griffin Cureington-Sims ............ 602/61 Welfeld ... ... ... .... ... ... ... ... ... 2/237

*

*

*

FOREIGN PATENT DOCUMENTS
DE EP EP EP EP EP EP EP EP EP GB GB GB GB GB JP JP JP JP JP JP JP JP JP 202005000716 0174179 0774241 1082951 1125566 000385562-0106 000454202-0027 000454202-0121 0006337 55-0027 000730403-0023 116526 212307 1603600 3020687 4004524 2-82707 2001-172806 2002-138302 2003-129303 2005-281893 2006-316359 2007-146337 2007-303002 2008-156812 96/08217 01175201 lJ1 4/2005 3/1986 5/1997 3/2001 8/2001 7/2005 12/2005 12/2005 12/2006 5/2007 6/1918 3/1924 1111981 7/2005 10/2007 6/1990 6/2001 5/2002 5/2003 10/2005 1112006 6/2007 1112007 7/2008 3/1996 10/2001

*

*

A A A A A

wo wo

*

OTHER PUBLICATIONS
Cover and ad page picturing Serena Williams, "Lucky" magazine, Oct. 2003. (2 pages).* Mila Kunis Magazine Cover, [on-line]; [downloaded from the Internet on May 5, 2012]; [cover identified is for Oct. 2003 issue]; lJRL: <http://www.whosdatedwho.com/tpx_1783/mila-kunis/ magazinecovers_13>. (4 pages).* Maidenform Brands, Inc. Reports Second Quarter 2011 Results and Provides Guidance for Full Year 2011, News Releases--General News, Iselin, NJ /PRNewswire via COMTEX/ Aug. 10, 2011. Associated Press, "Maidenform 2Q net income drops on settlement," Forbes.com (Aug. 10, 2011). http://www.forbes.com/feeds/ap/20 111 08/1 O/business-specialized-consumer-services-us-earnsmaidenform_8611962.html?partner=email printedAug. 12,2011. Maidenform's Responses and Objections to TTC's First Set of Requests for Production of Documents (Nos. 1-144) Aug. 24, 2010. Maidenform's Second Set of Requests for the Production of Documents and Things (Nos. 78-123) Sep. 3, 2010. Maidenform's Second Set of Interrogatories (Nos. 16-17) Sep. 3, 2010. Maidenform's First Supplemental Responses and Objections to TTC's First Set of Interrogatories Sep. 10, 2010. TTC's Responses to Maidenform's Second Set of Requests for Production (Nos. 78-123)---0ct. 12, 2010.

* * *

*

Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 63 of 73

US D666,384 S
Page3
TTC's Written Responses to Maidenform's Second Set oflnterrogatories (Nos. 16-17). San Francisco Chronicle article MFOOO 12401242. Women's Wear Daily article MF0001087-1088. Oct. 12, 2010. Maidenform's Responses and Objections to TTC's Supplemental First Set of Interrogatories (Nos. 1A-18A) Nov. 26, 2010. I. Donner's Objections to Maidenform's Request for Production of Documents Included in the Subpoena to I. Donner Feb. 22, 2011. Email from Christine Conforte to Heather Schindler "FW: Tummy Tee," sent Dec. 1, 2006. Email from Christine Conforte to Heather Schindler "Liz Lange,', sent Dec. 13, 2006. Email from Heather Schindler to Chistine Conforte "Liz Lange," sent Dec. 13, 2006. Email from Christine Conforte "Liz Lange," sent Dec. 11, 2006. Email from Heather Schindler to Christine Conforte "Liz Lange,', sent Dec. 9, 2006. Email from Christine Conforte to Heather Schindler "Liz Lange,', sent Dec. 7, 2006. Email from Heather Schindler to Christine Conforte "Liz Lange,', sent Dec. 7, 2006. Email from Christine Conforte to Heather Schindler, "Liz Lange,', sent Dec. 6, 2006 Email from Heather Schindler to Liz Lange copying Michelle Mooring and Christine Conforte, "Follow Up,', sent Jan. 24, 2007. Email from Liz Lange to Heather Schindler copying Christine Conforte and Michelle Mooring, "Follow Up,', sent Jan. 23, 2007. Email from Heather Schindler to Liz Lange copying Christine Conforte and Michelle Mooring, "Follow Up,', sent Jan. 23, 2007. Email from Liz Lange to Heather Schindler copying Christine Conforte "Follow Up,', sent Jan. 19, 2007. Email from Heather Schindler to Christine Conforte copying Michelle Mooring "FW: TummyTube," sent Jan. 31, 2007. Email from Christine Conforte to Heather Schindler copying Liz Lange "Tummy Tube,', sent Jan. 30, 2011. Email from Heather Schindler to Liz Lange copying Michelle Mooring and Christine Conforte "TummyTube," sent Feb. 6, 2007. Email from Liz Lange to Heather Schindler and Christine Conforte "TummyTube," sent Feb. 2, 2007. Email from Heather Schindler to Christine Conforte copying Liz Lange "TummyTube,', sent Feb. 2, 2007. Email from Christine Conforte to Heather Schindler copying Liz Lange "TummyTube,', sent Jan. 30, 2007. "Style Spy,', Lucky Magazine, p. 26, Jan. 2002 issue. LeCove swimwear catalog, p. 26 received by Applicant Aug. 24, 2010. JC Penney maternity catalog, p. 165 received by Applicant Aug. 24, 2010. WWD Intimates catalog, cover received by Applicant Aug. 24,2010. "Fashion Q & A,', Shape Magazine, p. 68. Jan. 2008 issue. Vogue Magazine, vol. 15, cover received by Applicant Aug. 24, 2010. "Self Selects,', Self Magazine, p. 162. Jun. 2000 issue. "Do good while you shop," Lucky Magazine, p. 286. Oct. 2006 issue. "Photo Finish," WWD Intimates catalog. 2006. "Shapewear Report," In Style Magazine, pp. 338-346. Sep. 2007
ISSUe.

Self Magazine advertisements. Jun. 2007 issue. Self Magazine, p. 33. Dec. 2007 issue. "My best stress bust is ... ,',Self Magazine, p. 200. Apr. 2002 issue. Times Three Clothier, LLC Sales Order No. 1000, Sales Order Date Apr. 30, 2007. Email from Ivan A. Saperstein to Heather Schindler copying Michelle Mooring and J. Schindler "Gatsby's" sent Jul. 20, 2007. Email from Heather Schindler to Ivan A. Saperstein copying Michelle Mooring and J. Schindler "Gatsby's" Jul. 20, 2007. Email from Ivan A. Saperstein to Michelle Mooring, Heather Schindler and J. Schindler "Gatsby's', Jul. 20, 2007. Invoice billed and shipped to Seams Beautiful-Carolyn Weaver, Invoice# 00006138, Aug. 11, 2006. Invoice billed and shipped to Seams Beautiful Carolyn Weaver, Invoice# 00006155, Aug. 25, 2006. Packing Slip to Seams Beautiful, Aug. 25, 2006.

M aidenform v. Times Three Clothier LLC dlb/ a Yummie Tummie, Case No. 10-cv-1661 (GBD) SkinnyCami Declarations. pp. 1-118 (submitted in 9 parts) received by Applicant Dec. 14, 2010. Applicant's Specifications. pp 1-3 (submitted in 1 part) dated May 24, 2007 -Jun. 11, 2007. Mai denform' s Initial Disclosures Jul. 9, 20 10. pp. 1-13 (submitted in 1 part). Maidenform's Responses and Objections to TTC's First Set of Interrogatories (Nos. 1-18) Aug. 24, 2010. pp. 1-12 (submitted in 1 part). Skinny Camisole Slimmer Corset Shaper Girdle, http://co103w. co1103.mail.live.com/mail/RteTrame_15.1.3059.0405.html?pf pf (URL is incomplete). pp. 1-3 (submitted in 1 part) received by Applicant Aug. 24, 2010. Applicant's Tummy Tees. pp. 1-3 (submitted in 3 parts). 6Ba is Applicant's Tummy Tee early prototype sewn in Feb./Mar. 2005. 6Bb and 6Bc are photos of Applicant's production sample first received May 30, 2007. Gazelle Sleeveless Long Shirt, Adidas, www.shopadidas.com/product/index.jsp?productiD=3847890&v2=y&cp=3748175.3 ... (URL is incomplete) received by Applicant Aug. 24,2010. Super Soft Slimmer Tank, MyShape, www.myshape.com/shop/style/ 11906?ci_sku= 11906&utm_source . . . (URL is incomplete) received by Applicant Aug. 24, 2010. Ann Michell Spaghetti Strap Tank Top Style 982, Lauren Silva, www.laurensilva.com/Ann_Michell_Spaghetti_Strap_Camisole_Control_Shirt_p/an . . . (URL is incomplete) received by Applicant Aug. 24, 2010. New Marilyn Monroe Smoothing Camisole 7762, ebay, www.cgi. ebay.com/New-Marilyn-Monroe-Smoothing-Camisole-7762-28 ... (URL is incomplete) received by Applicant Aug. 24,2010. Nancy Ganz The Belly Band Convertible Bodybriefer 3313, Her Room, www.herroom.com/Nancy-Ganz-3313-The-Belly-BandConvertible-Bodyvriefer.sht ... (URL is incomplete) received by Applicant Aug. 24, 2010. Nike Seamless Airborne Women's Long Tank Top, Nike, http://store. nike.com/us/en_us/? 1=shop,pdp,ctr-inline/cid-1/pid-282277/pgid238467 received by Applicant Aug. 24, 2010. Nike Fly Lightweight+ Women's Sports Top, Nike, http://clothingand-accessories.become.com/nike-fly-lightweight -womens-sportstop-com ... (URL is incomplete) received by Applicant Aug. 24, 2010. Pretty Shapewear Camisole, SassyBax, www.sassybax.com/prettycamisole.php received by Applicant Aug. 24, 2010. Underwire Torso Trim, SassyBax, www.sassybax.com/underwire_ trim. php received by Applicant Aug. 24, 2010. The Torso Trim, SassyBax, www.sassybax.com/torso_trim.php received by Applicant Aug. 24, 2010. Belly Bra, JCPenney, www.jcpenney.com/jcp/X6. aspx?DeptiD=51669&CatiD=51669&Grptyp=Siz&Item ... (URL is incomplete) received by Applicant Aug. 24,2010. Secret Sculptor Tunic, Shape Fx, www.shapefx.com/store/ Shapewear_Shop_by_Category_Camis_Tanks_Se ... (URL is incomplete) received by Applicant Aug. 24, 2010. The Skinny, www.skinnycami.biz/files/ received by Applicant Aug . 24,2010. Slimplicity Lingerie Strap Camisole, Spanx, www.spanx.com/product/index.j sp?productld=39773 53&cp=29925 53.40 15964&par . . . (URL is incomplete) received by Applicant Aug. 24,2010. Hide & Sleek Cami, Spanx, http://web.archive.orgl . . . (URL is incomplete) received by Applicant Aug. 24, 2010. Hide & Sleek Full Slip 18 Inch 060A, Spanx, www.herroom.com/ Spanx-060A-Hide-Sleek-Full-Slip-18-Inch.shtml received by Applicant Aug. 24, 2010. Teez-Her The Skinny Tank, Teez-Her, www.essentialapparel.com/ index.cfm/a/catalog.prodshow/vid/72638/catid/267/Teez ... (URL is incomplete) received by Applicant Aug. 24,2010. Cami-Rolls, http://camirolls.com/shop.shtml received by Applicant Aug. 24, 2010. TummyTee, www.redefyne.com/tummytee.html received by Applicant Aug. 24, 2010.

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US D666,384 S
Page4
Champion Seamless Empire Top with Built-In Sports Bra, Champion, www.championusa.com/Champion/Products/Women-Champion/Women_ShopByCa . . . (URL is incomplete) received by Applicant Aug. 24, 2010. Cosabella Smooth Bodyshaper Cami SHPE702, CosaBella, www. herroom.com/Cosabella-Shpe702-Smooth-Bodyshaper-Cami.shtml received by Applicant Aug. 24,2010. Daisy Fuentes Slimming Camisole, Kohls, www.kohls.com/upgrade/webstore/product_page.j sp?PRODUCT%3C%3 Eprd_id=8 received by Applicant Aug. 24, 2010. 582L Countouring Balconet Bra Cami-Long Torso, Dumi Shapewear, www.du-mi.com/store/product-info.php? pid12.html received by Applicant Aug. 24, 2010. Very Precious, Great Glam, http://greatglam.com/pd-very-precious. cfm received by Applicant Aug. 24, 2010. Sensual Charm, Great Glam, http://greatglam.com/pd-sensualcharm1.cfm received by Applicant Aug. 24, 2010. Yalof Schwartz, Suze, "Too Busy for the Gym?" Glamour, www. glamourcom/fashion/blogs/ slaves-to-fashion/2007I 10/too-bus . . . (URL is incomplete) received by Applicant Aug. 24, 2010, Page shown present on Internet approximately Oct. 2007. Underwire Torso Trim, Sassybax, http://webarchive.orglweb/ 20071020033219/sassybax.com received by Applicant Aug. 24, 2010, Page shown present on Internet on Oct. 20, 2007. Nancy Ganz The Belly Band Convertible Bodybriefer 3313, Nancy Ganz, www.herroom.com/NancyGanz . . . (URL is incomplete) received by Applicant Aug. 24, 2010, Page shown present on Internet on Nov. 25, 2007. Spanx Hide & Sleek Full Slip 060A, Spanx, www.herroom.com/ Spanx-Hide ... (URL is incomplete) received by Applicant Aug. 24, 2010, Page shown present on Internet on Nov. 1, 2001. Spanx Hide & Sleek Cami 050, Spanx, www.herroom.com/Spanx .. . (URL is incomplete) received by Applicant Aug. 24, 2010, Page shown present on Internet on Oct. 30, 2007. Collection of Photographs received by Applicant (submitted in 3 parts) on Dec. 8, 2010 received by Applicant Aug. 24, 2010. Alleged Ann Mason Receipt; Nov. 26, 2006. Declaration of Ann Mason; May 19, 2007. Yummie Tummie and Maidenform Settle Patent Infringement and Invalidity Lawsuits, Fox News 44, PR N ewswire (20 11 ). http://www. fox44now.com/story/15242333/yummie-tummie-and-maidenformsettle-patent-infringement-and-invaliditylawsuits?clienttype=printable printed Aug. 12, 2011. Maidenform Brands, Inc. Reports Second Quarter 2011 Results and Provides Guidance for Full Year 2011, News Releases--General News, Iselin, NJ /PRNewswire via COMTEXT/ Aug. 10, 2011. Associated Press, "Maidenform 2Q net income drops on settlement," Yahoo News (Aug. 10, 2011 ). http://news.yahoo.com/maidenform2q-net-income-drops-settlement-125621767.html printed Apr. 20, 2012.

* cited by examiner

Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 65 of 73

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION SPANX, INC, Plaintiff, v. TIMES THREE CLOTHIER, LLC d/b/a Yummie Tummie, Defendant. ) ) ) Case No. 12-CV-00710-WSD ) ) ) ) ) ) )

DECLARATION OF RICHARD ROTHFELD I, Richard Rothfeld, declare that: 1. I am the General Counsel of Times Three Clothier, LLC d/b/a

Yummie Tummie (“Yummie Tummie”). As a result of my position, I am familiar with the organization of Yummie Tummie, its business operations, and the location of witnesses and documents in Yummie Tummie’s possession. I am also familiar with companies in the shapewear garment industry. 2. Yummie Tummie is a limited liability company organized under the

laws of New York. Yummie Tummie’s headquarters and showroom are located in New York City.
-1NY 74509515v4

Case 1:13-cv-00710-WSD Document 4-18 Filed 04/02/13 Page 2 of 3

3.

Yummie Tummie owns several patents related to apparel products

which are at issue in this action. Documents and records relating to the development of Yummie Tummie’s patents are located at Yummie Tummie’s offices in New York City. 4. Heather Thomson, the inventor of the products at issue, and Wendy

Herman, head of sales of the products at issue, reside in the New York metropolitan area and their offices are located in New York City. 5. In light of negotiations between Yummie Tummie and Spanx

regarding Yummie Tummie’s infringement allegations, Yummie Tummie refrained from filing suit against Spanx, although it was ready to do so. 6. Attached as Exhibit 1 is an article from Forbes Magazine entitled

“Undercover Billionaire: Sara Blakely Joins the Rich List Thanks to Spanx” available at http://www.forbes.com/sites/clareoconnor/2012/03/07/ undercoverbillionaire-sara-blakely-joins-the-rich-list-thanks-to-spanx/ (last accessed April 1, 2013). 7. Based on Exhibit 1, Yummie Tummie is a significantly smaller

company than Spanx, Inc. measured in any conceivable manner. I hereby declare that all statements made herein of my own knowledge are true and that these statements were made with the knowledge that willful false
-2NY 74509515v4

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Clare O'Connor, Forbes Staff
The billionaire be at: we alth, e ntre pre ne urs and m one y in politics.

L I S T S | 3/07/2012 @ 11:54AM | 988,301 vie ws

Undercover Billionaire: Sara Blakely Joins The Rich List Thanks To Spanx
This story appears on the Mar. 26, 2012 cover of Forbes. Sara Blakely stands topless at a conference room table. It’s Monday morning at the Spanx headquarters in Atlanta, and the founder of the hosiery company has been in a product development meeting for all of five minutes before walking out abruptly. She returns a minute later in nothing but a lacy taupe bra with black pants and beige wedges and adjusts herself in a full-length mirror, worrying aloud about the metal clasps on this early prototype. Will they create lumps under her clothes? Her CEO, Laurie Ann Goldman — petite and glamorous in a leopard print shift dress — tugs on Blakely’s straps. Meet Sara Blakely The conference room looks like a boudoir designed by Willy Wonka: a jar of gum balls here, a loud houndstooth print there. Blakely hardly blinks in the presence of five colleagues and me as she removes the bra and tries on a second prototype. She’s been getting half-naked in public for the last decade, controlling every detail of the new category in women’s retail—shapewear— that she created from a one-product wonder sold out of her apartment. Today Spanx is to slimming undergarments what Kleenex is to tissues: a brand that stands for the category. It nets an estimated 20% on revenue just south of $250 million. In recent months four Wall Street investment banks separately valued Spanx at an average $1 billion, a sum Forbes corroborated with the help of industry analysts. Blakely owns 100% of the private company, has zero debt, has never taken outside investment and hasn’t spent a nickel on advertising. At 41 she’s the youngest woman to join this year’s World’s Billionaires list without help from a husband or an inheritance. She is part of a tiny, elite club of American women worth ten figures on their own, including Oprah Winfrey and Meg Whitman. Lots of women, from Betty Grable to Kim Kardashian, have put their butts on the line to plump their profiles and profits. Far fewer have had to overcome three phobias—fear of heights, fear of flying and stage fright—to master the art of selling. Blakely is on the road “always,” she says. She feels dizzy in tall buildings (it doesn’t help to have a Manhattan condo on the 37th floor) and often cries in midair. She’s unwilling to board a plane without her iPod, so she
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can play the same Mark Knopfler song, “What It Is,” at every takeoff. “I have sweaty palms, panic attacks, my heart’s racing,” says Blakely, whose Floridian roots you occasionally hear in her “Ah” for “I.” She once had to muster the courage to hawk her wares 6 to 12 times a month on home shopping channel QVC; now that Spanx is so well-known, it’s maybe once a month but for hours at a time. Blakely had early practice wrestling with anxiety when she occasionally did standup comedy. “Every time I went onstage I was so terrified I almost threw up,” she recalls. “I learned why they call it the greenroom.”

Spanx started as a one-woman show. In her first year Blakely shilled her new invention from a folding table in the foyer of Neiman Marcus, with a giant before-and-after photo of her derriere in cream slacks and bikini briefs underneath in one shot (an embarrassingly obvious Maginot Line) and $30 Spanx Power Panties (et voilà! no more line) in the other. Over the last couple of years Spanx has depended less on Blakely’s face—and other body parts—to shift its shapers and stay ahead of a handful of copycats. The company is now run by a team of 125, only 16 of them men. It sells 200 products in 11,500 department stores, boutiques and online shops in 40 countries. Distributors worldwide clamor to get on the stockist list. “With international, we’re just warming up,” says Goldman. Blakely would still happily pose in nothing but Spanx on the cover of any of the nine catalogs mailed each year to 6 million shoppers, but she knows Goldman, 49, won’t go for it. “I’m game for anything,” says Blakely. “The company has to pull me back.” Goldman, who created the first business plan at Spanx over the founder’s objections that it would stunt creativity, plays the straight man to Blakely’s more impulsive act. Fueling her more impetuous side is her entrepreneurial twin: husband Jesse Itzler, 43, a former rapper from Long Island, who has backed and cofounded a few startups, including Marquis Jet, which sells fractional air-travel time. When I meet him at his midtown Manhattan office, he bounds up the stairs in a sweaty headband, his blond curls dripping. He’s come from an intense cardio workout with a Navy SEAL he hired to move in with him and Sara for a month. (This is more efficient than hiring rickshaws from his office, as he used to do, and paying the driver to be a passenger while he hauled the vehicle all the way home.) Itzler regards Blakely’s accomplishments with amazement and amusement.
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“She’s 50% Lucille Ball, 50% Einstein. I keep a list of Sara-isms in my phone,” he says, referring to her goofy moments. “There’s something every day.” Recent example: wearing two different shoes, one red-soled Christian Louboutin and one plain boot, and having to hobble up the escalator at Bloomingdale’s. Legend: On the way to the Screen Actors Guild Awards one year, Blakely realized in the limo she’d forgotten her jewelry at her hotel. Instead of turning back, she had her driver stop at a candy store—and accessorized her gown with stretchable candy necklaces and bracelets. Spanx fans recognize her on the street, in stores and in airports and want to show their allegiance. “Women flash her,” says Itzler. “Imagine that. She’s just really good. She’s the best, man.” *** Blakely didn’t set out to invent anything, but she always had a knack for hucksterism. The daughter of a personal injury lawyer and an artist, she grew up in the beach town of Clearwater, Fla., always looking to make a buck. She’d set up a haunted house at Halloween and charge her neighbors admission. Or, tearing a page from Tom Sawyer, she’d trick her friends into doing her chores by turning weedpulling into a competition. As a teen she pulled off a rare double act: popular blonde cheerleader and debate team champion (no performance anxiety then). But tragedy eclipsed her sunny childhood. While riding a bike around her culde-sac, she saw a car run over her best friend, right in front of her. “I think that when you witness death at age 16, there’s a sense of urgency about life,” she says. “The thought of my mortality—I think about it a lot. I find it motivating. It can be any time that your number’s up.” That same year Blakely’s parents separated. Not long afterward, both her prom dates died in horrible circumstances. She sought solace in her father’s Wayne Dyer cassette tapes, memorizing all ten volumes of the motivational speaker’s How to Be a No-Limit Person series. Dyer preaches “selfactualization” and “eliminating your erroneous zones.” She was so moved that she marched to her principal’s office to suggest they include the cassette tapes in the Clearwater High curriculum. Her friends couldn’t run the other way fast enough. “People used to fight over who had to ride home with me at night after a party,” says Blakely. “No one wanted to be in my car—they’d be, like, ‘No! She’s going to make us listen to that motivational crap!’” Blakely started her first business in 1990, a kids’ club at the Clearwater Beach Hilton, charging $8 a child for a few hours of babysitting while moms and dads tanned. She was just out of high school, had no experience, no CPR training — and no insurance. She got away with it for three summers before trying to steal business from rival hotels’ summer programs. It was only when she went to pitch the Hilton’s general manager— age 20, in her first suit from Casual Corner—that she was busted. “He literally escorted me off the premises,” Blakely remembers. After getting a degree in legal communications at Florida State, Blakely twice took the LSAT exam for law school admission and twice scored abysmally. Frustrated, she drove from Clearwater to Orlando to audition for a job at Disney World. Two inches too short to fill the 5-foot-8 Goofy costume, she instead spent eight hours a day on a moving walkway buckling visitors into their seats at Epcot’s now closed World of Motion ride. “I think I wanted to postpone reality, having spent my whole life thinking I’d be a lawyer,” says
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Blakely, who as a kid loved watching her dad in court. “It didn’t work. My first day at Disney I went on break and saw Snow White dragging on a cigarette.” After three months of misery at Disney, Blakely applied for a job she’d seen advertised on a billboard. She spent the next seven years at Danka, then a $1 billion Florida-based office supply company, now part of Japanese printer giant Ricoh. It taught her the art of the cold call. “They gave me a cubicle, a phone book and a territory of four zip codes in Clearwater and said, ‘Now go sell $20,000 of fax machines a month door-to- door,’” she recalls. Blakely again found herself being escorted out of buildings. “I’d get business cards ripped up in my face because I was soliciting.” But with her easy charm, good looks and slick debating skills, she became, at age 25, Danka’s national sales trainer. *** Like many startups, Spanx began life as an answer to an irritating problem. The panty hose Blakely was forced to wear at both Disney and Danka were uncomfortable and old-fashioned. “It’s Florida, it’s hot, I was carrying fax machines,” she says. She hated the way the seamed foot stuck out of an opentoe sandal or kitten heel. But she noticed that the control-top eliminated panty lines and made her tiny body look even firmer. She’d bought a new pair of cream slacks for $78 at Arden B and was keen to wear them to a party. “I cut the feet off my pantyhose and wore them underneath,” she says. “But they rolled up my legs all night. I remember thinking, ‘I’ve got to figure out how to make this.’ I’d never worked in fashion or retail. I just needed an undergarment that didn’t exist.” Blakely, then 27, moved to Atlanta, set aside her entire $5,000 savings and spent the next two years meticulously planning the launch of her product while working nine to five at Danka. She spent seven nights straight at the Georgia Tech library researching every hosiery patent ever filed. She visited craft stores like Michaels to find the right fabrics. She sought out hosiery mills in the Yellow Pages and started cold calling, only to be told no repeatedly. Immune to rejection thanks to years selling door-to-door, she decided just to show up. At the Highland Mills hosiery factory in Charlotte, N.C., she was turned away, only to receive a call from the manager two weeks later. He had daughters, he told her, who wouldn’t let him pass up her invention. (Today the Spanx line is manufactured in 15 countries, including Thailand, Israel and Honduras; the cotton crotches are still hand-sewn in North Carolina.) To save $3,000 in legal fees she wrote her own patent from a Barnes & Noble textbook, setting aside $150 to incorporate her company, but couldn’t decide on a name. After a succession of terrible ideas she settled on Spanks, substituting an “x” at the last minute after reading that made-up names sold better. “The word ‘Spanx’ was funny,” she says. “It made people laugh. No one ever forgot it.” In the summer of 2000 she spent evenings on a friend’s computer designing her packaging. She went for cherry red and, with the help of a graphic artist, created a blonde cartoon model with a long ponytail called Sunny—Sara’s animated alter ego. Blakely flew to Dallas that fall to meet with buyers from Neiman Marcus. Current CEO Karen Katz was president of all the upscale chain’s stores at the time and remembers seeing Blakely in a conference room, pitching. “Sara’s effort was to solve an age-old problem for women in a modern way,” Katz
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says. She adds that Blakely’s obvious charisma and unusual backstory didn’t hurt. “We were smitten from the beginning.” With Neiman in the bag, Blakely convinced Bloomingdale’s, Saks and Bergdorf Goodman to give her a shot. Blakely was still working her day job at Danka, keeping her side business top secret, sitting up all night shoving Spanx orders into white padded envelopes from Office Depot. She was 24/7 customer service, answering phone calls from her bathtub or bed. Her then boyfriend quit his job and took care of shipping and handling. Unable to shell out for advertising, Blakely took on marketing and p.r. She tore out journalists’ bylines from magazines and called them. She took over morning staff meetings at department stores to show sales associates why Spanx shouldn’t languish in the beige hinterland of the hosiery floor but be sold alongside womenswear and shoes. If that didn’t work, she improvised, once sneaking some red Spanx packages onto a rack she bought at Target and placing them by a cash register in Neiman. “All the staff assumed someone else had approved it, until they caught me on CCTV,” she laughs. She connived her way to her biggest coup, shipping samples to Oprah Winfrey’s longtime stylist Andre Walker, who noticed the talk-show host started looking ten pounds lighter. In November 2000 Winfrey named Spanx her favorite product of the year on the annual audience scream-a-thon that was her Favorite Things Show. When Blakely got the call from Harpo Productions, she was warned to get her website ready, since orders would undoubtedly cascade after the show. Spanx didn’t have a website. “We took a color copy of the packaging and scanned it in,” Blakely says. “I ran a considerable Web business for $18 a month.” She resigned from Danka two weeks before the show aired. Spanx was profitable from day one, and raked in $4 million its first year and $10 million the next. For the next two years Blakely constantly traveled to do in-store demos and local news appearances. In 2001 she scored a coveted deal with QVC, which turned her down until it read a Forbes story (“Footless and Fancy-Free,” Apr. 2, 2001) that described Blakely as an “accidental entrepreneur” who’d reinvented the girdle. So what if Spanx took the high road (Bergdorf ) and the low (QVC) at once? Women were buying like mad. “Sara was out there shaking her butt and selling her product,” says Goldman in her office, next door to Blakely’s and furnished like an Upper East Side living room—velvet fittings, monogrammed Louis Vuitton trunks. Goldman, a ten-year veteran of Coca-Cola, where she ran the licensing division in 54 countries, came on board in 2002, first as a consultant, then as CEO. She was Spanx’s fifth employee. Her office was the kitchen in Blakely’s apartment in Decatur, but she knew that wouldn’t be the case for long. “I wanted to run Spanx like a public company from the start. I thought, Let’s get Ernst & Young to do our audits. They didn’t really do companies our size, but I said we were going to be bigger one day. We did the same with IT.” As Goldman set about professionalizing the company, Blakely found a publicity stunt she couldn’t pass up. After six auditions she was cast on Richard Branson’s 2003 reality show, Rebel Billionaire, which aired on Fox in 2004. Her lawyers (and her dad) begged her not to do it. But Blakely says she wanted to meet and learn from the Virgin mogul. Branson saw it as another sign of her p.r. savvy. “She was already reasonably successful before, and she cleverly thought the show would help,” he says.
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Leaving Spanx in Goldman’s hands for three months, Blakely won task after task—shocking her teammates and the crew. “I was cast as the girl who’d have the meltdown from heights on the first episode and lose her mind,” she says. Blakely followed daredevil Branson up the side of a moving hot air balloon at 8,000 feet, climbing a rope ladder the equivalent of a 17-story building. She’d be a world record holder if she’d remembered to call Guinness afterward. “Sara was the runner-up overall,” says Branson. “The only reason I didn’t give her the top prize was because she was already successful. She didn’t need a leg up.” Instead, Branson cut her a personal check for $750,000 to start a foundation. To date Blakely and Spanx have donated $17.5 million to charities primarily aimed at supporting girls and women—college scholarships in South Africa, homes for single mothers and their families (via Habitat for Humanity) and empowerment grants supporting entrepreneurship among them. “Isn’t my wife delicious?” Itzler asks aloud in an Atlanta restaurant, while gripping her thigh under the table. He’s flown in from New York for one day to watch Blakely speak to a group of jobless women seeking inspiration. With six homes—two in Atlanta, an Upper West Side condo in Manhattan, a Connecticut summer house, an outpost near Blakely’s brother in La Jolla, Calif. and a new place in Clearwater—he and his wife often miss each other. One of them usually has in tow their 2-year-old son, Lazer, named after Itzler’s Brooklyn-born greatgrandfather. Blakely and Itzler met six years ago through Marquis Jet, an offshoot of NetJets. He’d come up with the idea of allowing travelers to buy time on private planes at age 27, after a few years in L.A. rapping (biggest hit: “Shake It Like a White Girl”) and writing sports jingles, including the NBA’s Knicks anthem “Go New York Go.” In 2006, when he planned a celebrity poker tournament, a sales rep suggested he invite Blakely, who by then was successful (and brave) enough to fly on private planes. Itzler had never heard of Spanx and Googled Blakely’s picture, thinking, “Yeah, she can come. Top of the list.” Each was hooked, even though both were attached to other people. They married in 2008 in Boca Grande, Fla. in front of Blakely’s early Spanx employees and Itzler’s friends from his years in the music and sports industries. “We had very successful people and, like, thugs,” he says. Blakely had a moment of panic weeks before the wedding. She sat Itzler down at a favorite Upper West Side restaurant and told him the secret only her immediate family knew: just how rich she was. “She said to me, ‘I’m not sure you really know how successful Spanx is—[and] I am.’” Blakely told him the company pulled in not a couple of million dollars a year but a couple of hundred million. Itzler started crying. “I was just so happy for her.” Itzler himself isn’t exactly poor. In 2010 he sold Marquis to Berkshire Hathaway, which owns NetJets, for an undisclosed amount. He now owns a stake in Zico, a trendy coconut water brand (Coca-Cola has 20%), as well as Voli, a low-calorie vodka, and Sheets, a caffeinated version of Listerine’s strip that dissolves on the tongue—all held through his 100 Mile Group, an incubator and marketing company. Investors in various projects include friends LeBron James and Gisele Bündchen. Blakely has strong views about her wealth. “I feel like money makes you more of who you already are,” she says from behind a mirrored desk in her plush Atlanta office, stirring a bowl of take-out soup and exhausted from a sleepless, flu-ridden night. “If you’re an asshole, you become a bigger asshole. If you’re nice, you become nicer. Money is fun to make, fun to spend and fun to give
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away.” Most fun: anonymously buying dinner for an entire restaurant crowd at her favorite Japanese steak house in Atlanta or bidding on travel “experiences” like VIP trips to Paris Fashion Week and Sundance at the charity auctions she and Itzler attend. Coming off its best year ever, Spanx has big plans for expansion. Goldman is pushing to double international sales, now over 15% of the total, within three years. She spends a lot of time jetting around Asia, laying the groundwork for Spanx in countries that don’t obsess about their posteriors quite as much as Westerners do. She and Blakely plan to open stand-alone shops, first in Atlanta, then slowly worldwide. They’re pushing their cheaper diffusion line, Assets, and adding new categories— swimwear, activewear, men’s underwear —as customers demand more options and competitors like Yummie Tummie, Dr. Rey Shapewear, Skweez Couture and Body Wrap (as well as Victoria’s Secret and Maidenform) flood the booming shapewear market. Spanx is often the most expensive brand on the shapewear rack, but it hasn’t hurt sales. “If you have a great product, you can charge whatever you want,” says Noah Wrubel, CEO of lingerie site BareNecessities.com. “I as a retailer have no interest in a race to the bottom. Anyone can make a cheaper product.” Blakely can afford to fund Spanx’s planned growth, but she and Goldman might, for the first time, consider a public offering or an injection of outside capital to speed things up. “We’ve been approached consistently from day one, and it was never something I entertained,” Blakely says. “Now, for the first time, I may entertain it.” She still gets teary-eyed whenever she rides up the escalator in Bloomingdale’s to see the Spanx shop that opened last spring. “I have to pinch myself,” she says, hobbling in her different shoes, greeting shop assistants and adoring customers who recognize her from years of TV appearances. “Five grand,” she says, thinking back a decade. “Good investment.”

This article is available online at: http://www.forbes.com/sites/clareoconnor/2012/03/07/undercover-billionaire-sara-blakelyjoins-the-rich-list-thanks-to-spanx/

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Case 1:13-cv-00710-WSD Document 4-20 Filed 04/02/13 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION SPANX, INC., Plaintiff, v. TIMES THREE CLOTHIER, LLC d/b/a Yummie Tummie, Defendant. ) ) ) Case No. 13-CV-00710-WSD ) ) ) ) ) ) )

[PROPOSED] ORDER For good cause shown, Defendant Times Three Clothier, LLC’s Motion to Transfer, or, in The Alternative, Stay this Action is hereby GRANTED.

This ______ day of ______________, 2013.

______________________________

US2008 997414.1