A/75986035.

9
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA – HARRISONBURG DIVISION



WTGD 105.1 FM, WQPO 100.7 FM, WJ DV
96.1 FM, and M. BELMONT VERSTANDIG
INC., d/b/a VerStandig Broadcasting,

Plaintiffs,

v.

SOUNDEXCHANGE, INC.,

Defendant.





Case No. ___________________



DECLARATORY JUDGMENT COMPLAINT
Plaintiffs WTGD 105.1 FM, WQPO 100.7 FM, WJ DV 96.1 FM, and M. Belmont
VerStandig Inc., by and through their attorneys, state their complaint for declaratory relief
against Defendant SoundExchange, Inc.:
NATURE OF THIS ACTION
1. The Copyright Act, 17 U.S.C. §§ 101 et seq., grants owners of copyrights in
sound recordings the right to perform their works publicly “by means of a digital audio
transmission.” 17 U.S.C. § 106(6). Many (perhaps most) digital performances of copyrighted
sound recordings are subject to statutory licenses, which require the transmitter to make royalty
payments. The Copyright Act further provides that a copyrighted sound recording may be
performed digitally, without infringing the copyright or payment of a royalty, when, among other
things, it is part of a radio station’s AM/FM broadcast that is being retransmitted no more than
150 miles from the station’s transmitter. See 17 U.S.C. § 114(d)(1)(B)(i).
2. When Congress adopted the 150-mile exemption more than a decade ago, data
sent over the Internet could not be restricted to recipients in specific physical locations. As a
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result, radio stations that have sent their AM/FM broadcasts to listeners over the Internet were
not able to satisfy the 150-mile exemption and have had to pay royalties to the owners of
copyrights in the sound recordings that are part of the stations’ broadcasts. SoundExchange, Inc.
is the entity responsible for collecting those royalties and distributing them to copyright owners.
3. A recent technological development called geo-fencing now makes it possible to
restrict data sent over the Internet to recipients in specific physical locations. As a result, a radio
station that sends its AM/FM broadcast over the Internet can satisfy the 150-mile exemption if it
chooses to use geo-fencing.
4. Plaintiffs WTGD “Bob Rocks” 105.1 FM (“WTGD”), WQPO “Q101” 100.7 FM
(“WQPO”), WJ DV “Fresh 96” 96.1 FM (“WJ DV”) (collectively, “Station Plaintiffs”) are FCC-
licensed broadcast radio stations located in Harrisonburg, Virginia. Plaintiffs want to use geo-
fencing to make their FM broadcasts available over the Internet only to listeners within 150
miles of each Station Plaintiff’s respective transmitter.
5. Plaintiffs have explained their intention to SoundExchange. SoundExchange
responded by asserting that the statutory license for digital performances covers geo-fenced
transmissions and that, as a result, Plaintiffs would owe royalties even if they use geo-fencing.
Because SoundExchange may not collect royalties for digital performances of sound recordings
that the Copyright Act exempts, Plaintiffs have filed this declaratory judgment action against
SoundExchange asking this Court to clarify Plaintiffs’ rights and obligations under the Copyright
Act.
THE PARTIES
6. Plaintiff WTGD is an FCC-licensed terrestrial broadcast radio station located in
Harrisonburg, Virginia.
a. WTGD’s radio transmitter is located in Harrisonburg, Virginia, at 38° 27' 8.00" N
Latitude, 78° 54' 32.00" W Longitude.
b. WTGD’s FM broadcasts currently are not accessible over the Internet. Upon
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information and belief, no third party retransmits WTGD’s FM broadcasts over
the Internet.
c. WTGD wants to send its FM broadcast to listeners over the Internet because it
will enable WTGD to serve its local community better. More and more people
want to listen to their favorite local radio stations on Internet-connected devices.
Some prefer the convenience; others live or work in places or buildings that,
though they are within a station’s coverage area, are not easily penetrated by FM
signals or do not have direct access to the station’s signal.
7. Plaintiff WQPO is an FCC-licensed broadcast radio station located in
Harrisonburg, Virginia.
a. WQPO’s radio transmitter is located in Harrisonburg, Virginia at 38° 27' 8.00" N
Latitude, 78° 54' 32.00" W Longitude.
b. WQPO’s broadcasts are accessible over the Internet without geographic
restriction, and so WQPO pays royalties to SoundExchange pursuant to the
statutory license.
c. Upon information and belief, the majority of listeners who access WQPO’s
broadcasts over the Internet do so from physical locations within WQPO’s local
community.
8. Plaintiff WJ DV is an FCC-licensed broadcast radio station located in Broadway,
Virginia.
a. WJ DV’s radio transmitter is located in Broadway, Virginia at 38° 33' 50.00" N
Latitude, 78° 57' 0.00" W Longitude.
b. WJ DV’s broadcasts are accessible over the Internet without geographic restriction,
and so WJ DV pays royalties to SoundExchange pursuant to the statutory license.
c. Upon information and belief, the majority of listeners who access WJ DV’s
broadcasts over the Internet do so from physical locations within WJ DV’s local
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community.
9. Plaintiff M. Belmont VerStandig Inc., d/b/a VerStandig Broadcasting
(“VerStandig”), is a privately held corporation, incorporated under the laws of Maryland and
registered to do business in Virginia. VerStandig owns and operates WTGD, WQPO, WJ DV,
and other other FCC-licensed broadcast radio stations, including WSVA 550 AM, a news talk
radio station that has serviced the Harrisonburg, Virginia area for the last 75 years.
10. Defendant SoundExchange, Inc., is a non-profit organization, incorporated under
the laws of Delaware, with headquarters in the District of Columbia. The Librarian of Congress
has designated SoundExchange as the “sole collective” for collecting and distributing royalties
due to copyright owners under Sections 112 and 114 of the Copyright Act, administering
compulsory licenses in sound recordings, and enforcing the terms of those licenses. See, e.g.,
17 U.S.C. § 114(e)(1); 37 C.F.R. § 380.4. SoundExchange also functions as a membership
association for owners of copyrights in sound recordings who authorize SoundExchange to
represent their interests and advocate on their behalf.
JURISDICTION & VENUE
11. This is an action for declaratory relief pursuant to the Declaratory J udgment Act,
28 U.S.C. §§ 2201 et seq., and Rule 57 of the Federal Rules of Civil Procedure.
12. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.
§§ 1331 and 1338(a) because this action arises under the Copyright Act.
13. Venue is proper in the Western District of Virginia, Harrisonburg Division,
pursuant to 28 U.S.C. §§ 1391(b)(2) and 1400(a), and Local Rule 2(b). A substantial part of the
events giving rise to this declaratory judgment action occurred in Harrisonburg, Virginia, and
SoundExchange’s contacts with Harrisonburg, Virginia, are sufficient to subject it to personal
jurisdiction in this District.


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BACKGROUND
THE SCOPE OF COPYRIGHT PROTECTION FOR SOUND RECORDINGS
14. Before 1971, owners of copyrights in sound recordings of musical compositions
had no rights under the Copyright Act. The limited rights Congress provided in 1971 gave
owners of copyrights in sound recordings control over copying or reproduction of their sound
recordings (on records or compact discs, for example), but no control over public performances
of their recordings. As a result, radio stations that publicly performed sound recordings by
broadcasting them over the air were not infringing the copyrights in the recordings and thus were
not required to pay royalties to the recording industry. (Radio stations nevertheless paid
royalties to owners of copyrights in the underlying musical compositions.) In effect, radio
broadcasts served as free advertising that encouraged listeners to purchase copies or
reproductions of the copyrighted sound recordings. Congress has long recognized and carefully
protected this uniquely symbiotic relationship between radio stations and the recording industry.
15. With the advent of digital recording and transmission technologies, Congress
became concerned that “certain types of subscription and interactive audio services might
adversely affect sales of sound recordings and erode copyright owners’ ability to control and be
paid for use of their work.” H.R. Rep. 104–274. So in 1995, Congress enacted the Digital
Performance Right in Sound Recordings Act, Pub. L. No. 104–39, 109 Stat. 336, to provide
copyright protection for public performances of sound recordings by way of digital audio
transmissions. See 17 U.S.C. § 106(6). Congress narrowly tailored this right to provide
recording companies with (a) exclusive control over public performances made by way of
interactive (or “on-demand”) digital transmissions, and (b) a right to compensation for non-
interactive digital transmissions made on a subscription basis (i.e., for a fee).
16. Congress did not make the new digital performance right absolute. It granted
only a limited right to address “the potential impact on th[e] market [for the sale of sound
recordings] posed by subscription and interactive services—but not by broadcasting and related
transmissions.” S. Rep. 104–128. Because the “sale of many sound recordings and the careers
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of many performers have benefitted considerably from airplay … provided by … free over-the-
air broadcasting,” Congress disclaimed any intent “to jeopardize the mutually beneficial
economic relationship between the recording and traditional broadcasting industries.” H.R. Rep.
104–274.
17. And so Congress crafted and later expanded several exemptions to the new digital
performance right, which were “intended to strike a balance among all of the interests affected,”
id., and to protect broadcasters’ transmissions within their local services areas. For example, the
following are not included within the scope of the limited, digital performance right:
(i) transmissions made in analog format, which is the primary technology used to effect radio
broadcasts, 17 U.S.C. §§ 106(6) & 114(a); (ii) digital “nonsubscription broadcast transmissions,”
which are those made by FCC-licensed terrestrial broadcast stations, 17 U.S.C. § 114(d)(1)(A) &
(j)(3); and (iii) retransmissions of a radio station’s broadcast within 150 miles of the radio
station’s broadcast transmitter—the exemption that is the focus of this case, 17 U.S.C.
§ 114(d)(1)(B)(i).
SOUNDEXCHANGE’S ROLE
18. For digital transmissions that that are not exempt, the transmitting entity may
negotiate licenses with individual copyright owners for the privilege of digitally performing a
sound recording. This can be an impossible undertaking for many transmitting entities,
particularly those that transmit content continuously and on-demand. Recognizing that
broadcasters and other transmitting entities cannot practically negotiate with all individual
copyright holders, Congress created statutory licenses, see 17 U.S.C. §§ 112(e) & 114(f), to be
administered and enforced by a single collective, 17 U.S.C. § 114(g)(3). SoundExchange is that
collective. 37 C.F.R. § 380.4(b).
19. SoundExchange’s budget is derived from the royalties it collects and distributes.
It is entitled to deduct from all royalty receipts the reasonable costs it incurred in (a)
administering “the collection, distribution, and calculation of the royalties”; (b) settling “disputes
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relating to the collection and calculation of the royalties”; and (c) “licensing and enforcement of
rights with respect to the making of ephemeral recordings and performances subject to licensing
under section 112 and [section 114] … .” 17 U.S.C. § 114(g)(3).
20. SoundExchange and owners of copyrights in sound recordings have identical and
overlapping interests in the question whether certain digital transmissions of sound recordings
are, or are not, infringing. Copyright owners can enforce their copyrights only against infringing
transmissions, and SoundExchange can collect royalties only for those same transmissions.
21. To receive royalties under the statutory licenses set forth in Sections 112 and 114
of the Copyright Act, copyright owners must first register with SoundExchange. Registered
copyright owners can elect to become a SoundExchange Member by executing the
SoundExchange Sound Recording Copyright Owner Membership Agreement (attached hereto as
Exhibit A).
22. SoundExchange Members authorize SoundExchange to, inter alia, (a) “represent
Member[s] in connection with rate setting proceedings … and other related proceedings,
administrative actions, hearings, litigation, and appeals”; (b) “enforce nonexclusively the rights
of public performance”; (c) “commence and prosecute litigation in the name of
SoundExchange … or others in whose name the sound recordings owned (or controlled) by
Member[s] may be held”; and (d) “collect and receive damages arising from infringement of”
sound recording rights. Id. §§ 5–6.
23. SoundExchange Members appoint SoundExchange as their “true and lawful
attorney ... , to do all acts, take all proceedings, and execute, acknowledge and deliver any and all
instruments, papers, documents, process and pleadings that may be necessary, proper or
expedient to restrain infringements and recover damages relating to the infringement or other
violation of such rights … .” Id. § 6.
24. SoundExchange uses its Internet website (www.soundexchange.com) to
communicate and direct information to copyright owners, statutory licensees, and potential or
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prospective licensees, including FCC-licensed radio stations. SoundExchange’s Internet website
provides information about its advocacy on behalf of copyright owners, statutory license rates,
and the process for submitting regular, detailed reports regarding the sound recordings a licensee
digitally performs. SoundExchange’s Internet website directs statutory licensees to report the
audience measurement—the number of listeners that have access to the performance—for each
sound recording digitally performed. And SoundExchange’s Internet website explains to
potential or prospective licensees how they can enter into the statutory license and thus enter into
a relationship with SoundExchange.
25. In 2013, SoundExchange collected $656 million in royalties from nearly 2,500
entities located throughout the United States. Plaintiffs WQPO and WJ DV pay royalties to
SoundExchange pursuant to the statutory license.
LIVE INTERNET STREAMING OF OVER-THE-AIR AM/FM BROADCASTS
26. Radio stations’ AM/FM broadcast transmissions often include performances of
copyrighted sound recordings interspersed with other audio, such as commentary from a host.
27. A radio station’s AM/FM broadcast transmission can be “live streamed” over the
Internet, meaning it can be sent digitally to listeners using computers at the same time as it is
transmitted over the air to listeners using AM/FM receivers.
28. A live stream of a radio station’s AM/FM broadcast transmission is practically
simultaneous with that transmission.
29. A live stream comprises data that is dynamic. The computers involved in sending
a live stream store data only briefly and automatically overwrite old data with new data after
sending. Data that is live streamed over the Internet usually is “buffered”—up to a few seconds
of the broadcast are stored on a sending computer before being sent to a receiving computer.
Those few seconds give a receiving computer time to re-request data from the sending computer
in case problems arise as the data travels over the Internet.


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GEO-FENCING
30. Until recently, data made available over the Internet was truly global. A recipient
from nearly anywhere in the world could request and receive data over the Internet.
31. Now, because of geo-fencing, data made available over the Internet can be
restricted to recipients based upon their physical locations.
32. Geo-fencing technology determines a recipient’s physical location by comparing
a receiving computer’s IP address, WiFi and GSM access point, GPS coordinates, or some
combination against a real world map of those virtual addresses.
33. When data is geo-fenced, only recipients physically located within the authorized
locations can access the data over the Internet. Recipients who are physically located outside the
geo-fence who attempt to access the data over the Internet receive a message explaining that the
data is unavailable.
34. Geo-fencing is a proven technology. It is used by the gaming industry to restrict
access to online gambling to recipients physically located in jurisdictions where gaming is legal.
And it is used by marketers for the direct advertising of products to persons physically located in
targeted markets.
35. Plaintiffs have consulted with geo-fencing experts and service providers. Station
Plaintiffs intend to use geo-fencing to limit the geographic reach of the live stream of their FM
broadcasts to less than 150 miles from their respective broadcast transmitters.
PLAINTIFFS’ FEBRUARY 28, 2014 LETTER TO SOUNDEXCHANGE
36. By letter dated February 28, 2014, Plaintiffs informed SoundExchange of geo-
fencing, and advised SoundExchange of WTGD’s intent “to commence internet streaming of its
terrestrial radio broadcasts through … geofencing,” in order to “provide another means for
WTGD’s current audience in the Harrisonburg, Virginia area to receive its broadcast.” See Feb.
28, 2014 Ltr. to SoundExchange (attached hereto as Exhibit B).
37. Plaintiffs explained that, pursuant to 17 U.S.C. § 114(d)(1)(B)(i), “a copyright
owner’s exclusive performance right is not infringed when an FCC-licensed radio station’s
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broadcast transmission is retransmitted, digitally and simultaneously, only within a radius of 150
miles or less from the site of the station’s radio broadcast transmitter.” Id. Plaintiffs noted that
WTGD’s geo-fenced broadcasts would fall within the 150-mile exemption. Id.
SOUNDEXCHANGE’S MARCH 14, 2014 LETTER TO PLAINTIFFS
38. By letter dated March 14, 2014, SoundExchange responded. SoundExchange
asserted that the 150-mile exemption applies only “to retransmissions of broadcasts by cable
systems to their subscribers or retransmissions by broadcasters over the air.” Mar. 14, 2014 Ltr.
to Plaintiffs (attached hereto as Exhibit C). SoundExchange also asserted that, if the 150-mile
exemption “did apply to WTGD’s proposed simulcasting,” WTGD would nevertheless need to
pay royalties for copies or reproductions of the sound recordings in the FM broadcasts that it live
streams. Id. SoundExchange “strongly urge[d] WTGD to seek licenses for its simulcasts,” and
directed WTGD to access SoundExchange’s Internet website for “information concerning
compliance with statutory licenses.” Id.
CAUSE OF ACTION
DECLARATORY JUDGMENT – RIGHTS & OBLIGATIONS UNDER THE COPYRIGHT ACT
39. Plaintiffs repeat and re-allege each of the above allegations as if fully set forth
herein.
40. This case presents a substantial justiciable controversy. Section 114(d) limits the
scope of a copyright owner’s exclusive right in the public performance of sound recordings by
means of a digital audio transmission. “The performance of a sound recording publicly by
means of a digital audio transmission, other than as part of an interactive service, is not an
infringement … if the performance is part of … a retransmission of a nonsubscription broadcast
transmission: Provided, That, in the case of a retransmission of a radio station’s broadcast
transmission … the radio station’s broadcast transmission is not willfully or repeatedly
retransmitted more than a radius of 150 miles from the site of the radio broadcast transmitter … .”
17 U.S.C. § 114(d)(1)(B)(i).
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41. The Station Plaintiffs are FCC-licensed broadcast radio stations whose FM
broadcast transmissions are unlimited and offered free of charge. Their FM broadcast
transmissions are “nonsubscription broadcast transmissions” under Section 114 of the Copyright
Act. See 17 U.S.C. § 114(j)(3), (9), & (14).
42. The Station Plaintiffs’ intended live streams of their FM broadcasts will be
practically simultaneous with their initial FM broadcast transmissions. Each Station Plaintiff’s
intended live stream of its FM broadcasts will be a “retransmission” under Section 114. See
17 U.S.C § 114(j)(12)
43. No Station Plaintiff’s intended live stream of its FM broadcast will be part of an
interactive service. See 17 U.S.C. § 114(j)(7).
44. Each Station Plaintiff’s intended live stream of its FM broadcast will be geo-
fenced and restricted to recipients within less than 150 miles of their respective broadcast
transmitters. The Station Plaintiffs will not willfully or repeatedly retransmit their FM
broadcasts more than 150 miles from the site of their respective broadcast transmitters. See 17
U.S.C. § 114(d)(1)(B)(i).
45. The intended live stream of the Station Plaintiffs’ FM broadcasts will be the only
retransmissions of each Station Plaintiff’s FM broadcast. No third party will retransmit the
Station Plaintiffs’ FM broadcasts more than 150 miles from the site of their respective broadcast
transmitters.
46. Any “transmission” that occurs in the course of a Station Plaintiff’s intended live
stream from its broadcast transmitter to listeners located within a 150-mile radius of the
transmitter is an incidental transmission that is likewise exempt under Section 114. See 17 U.S.C.
§ 114(d)(1)(C)(i).
47. SoundExchange contends that, unless Plaintiffs accept the statutory license and
pay it royalties pursuant to 17 U.S.C. § 114(f), the Station Plaintiffs’ intended live streams of
their FM broadcasts will infringe the digital-transmission rights of copyright owners of sound
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recordings even if the Station Plaintiffs geo-fence the live streams. Plaintiffs disagree. Plaintiffs
believe that their intended live streams are exempt retransmissions of a nonsubscription
broadcast transmission. See 17 U.S.C. § 114(d)(1)(B).
48. SoundExchange contends that, unless Plaintiffs accept the statutory license and
pay it royalties pursuant to 17 U.S.C. § 112(e), the Station Plaintiffs’ intended live stream of
their FM broadcasts will infringe the reproduction rights of copyright owners of sound
recordings. Plaintiffs disagree. Each Station Plaintiff needs no more than one copy of its FM
broadcast transmission (including performances of copyrighted sound recordings) in order to
effect its intended live stream of its FM broadcast. See 17 U.S.C. § 112(a).
49. Setting up an Internet stream and geo-fencing it require a substantial financial
investment from Plaintiffs. That investment will be for naught if WTGD owes SoundExchange
royalties for a live stream of WTGD’s FM broadcast whether or not the live stream is geo-fenced.
50. In light of SoundExchange’s March 14, 2014 letter, WQPO and WJ DV fear that
SoundExchange will demand royalties for their live streams of their FM broadcasts, even if they
use geo-fencing.
51. SoundExchange’s instruction that Plaintiffs review the terms and information on
SoundExchange’s website, then file a Notice of Use of Sound Recordings Under Statutory
License, see Ex. B, demonstrates that this dispute is ripe for judicial determination.
52. J udicial intervention is necessary to clarify Plaintiffs’ rights and obligations under
17 U.S.C. §§ 112 and 114.






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PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Court enter an order:
1. Declaring that a live stream of Plaintiffs’ FM broadcasts over the Internet only to
listeners physically located within 150 miles of each Plaintiff’s respective FM transmitter is an
exempt transmission or retransmission under 17 U.S.C. § 114(d)(1)(B)(i);
2. Declaring that a live stream of Plaintiffs’ FM broadcasts over the Internet only to
listeners physically located within 150 miles of each Plaintiff’s respective FM transmitter is not
an infringement of any right protected by the Copyright Act;
3. Declaring that Plaintiffs need no statutory license under 17 U.S.C. § 114(f), and
thus need make no royalty payments to SoundExchange, to live stream their FM broadcasts over
the Internet only to listeners physically located within 150 miles of each Plaintiff’s respective
FM transmitter;
4. Declaring that each Plaintiff’s intended live stream of its FM broadcast over the
Internet only to listeners physically located within 150 miles of each Plaintiff’s respective FM
transmitter requires no more than one copy or phonorecord of a particular transmission program
embodying a performance of a sound recording under 17 U.S.C. § 112(a);
5. Declaring that Plaintiffs need no statutory license under 17 U.S.C. § 112, and thus
need make no royalty payments to SoundExchange, to live stream their FM broadcasts over the
Internet only to listeners physically located within 150 miles of each Plaintiff’s respective FM
transmitter;
6. Declaring that SoundExchange has no right under 17 U.S.C. § 114 to collect
royalties for, or otherwise inhibit or prohibit, Plaintiffs’ intended live stream of their FM
broadcasts over the Internet only to listeners physically located within 150 miles of each
Plaintiff’s respective FM transmitter;
7. Declaring that SoundExchange has no right under 17 U.S.C. § 112 to collect
royalties for, or otherwise inhibit or prohibit, Plaintiffs’ intended live stream of their FM
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broadcasts over the Internet only to listeners physically located within 150 miles of each
Plaintiff’s respective FM transmitter; and
8. Ordering such other and further relief as this Court would deem just and proper.

Dated: April 30, 2014


BINGHAM MCCUTCHEN LLP
David J . Butler (pro hac pending)
Bryan M. Killian (pro hac pending)
Stephanie Schuster (pro hac pending)
2020 K Street NW
Washington, DC 20006
Tel: (202) 373-6000
Fax: (202) 373-6001
david.butler@bingham.com
bryan.killian@bingham.com
stephanie.schuster@bingham.com
s/ Maurice VerStandig _____
Maurice VerStandig
Virginia Bar Number: 81556
OFFIT KURMAN
8000 Towers Crescent Drive
Suite 1450
Tysons Corner, VA 22182
Tel: (240) 507-1714
Fax: (240) 507-1735
mverstandig@offitkurman.com


Counsel for Plaintiffs


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