Amicus Curiae Brief — Smith & Nephew, Inc., et al., Petitioners v. Arthrex, Inc., et al.

No. 19-1452

IN THE

Supreme Court of the United States

SMITH & NEPHEW, INC., ET AL.,

Petitioners,

v.

ARTHREX, INC., ET AL.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Federal Circuit

BRIEF FOR AMICUS CURIAE

COMCAST CABLE COMMUNICATIONS, LLC

IN SUPPORT OF PETITIONERS

DONALD B. VERRILLI, JR.

Counsel of Record

GINGER D. ANDERS

MUNGER, TOLLES & OLSON LLP

1155 F Street NW, 7th Floor

Washington, DC 20004

(202) 220-1100

donald.verrilli@mto.com

BRIAN J. SPRINGER

MUNGER, TOLLES & OLSON LLP

350 S. Grand Ave., 50th Floor

Los Angeles, CA 90071

i

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE .............................1

INTRODUCTION AND SUMMARY OF THE

ARGUMENT ................................................................2

ARGUMENT ................................................................4

I. The Federal Circuit’s categorical forfeiture

ruling is wrong, and it disregards the

important reliance and finality interests

that forfeiture protects. ..........................................4

II. The Federal Circuit’s disregard of

patentees’ forfeiture has severe

consequences for litigants and the patent

system. ....................................................................8

CONCLUSION ..........................................................14

ii

TABLE OF AUTHORITIES

Page(s)

CASES

Autoalert, Inc. v. Dominion Dealer Sols.,

LLC, No. SACV 12-1661, 2013 WL

8014977 (C.D. Cal. May 22, 2013) ....................... 11

Carr v. Comm’r,

961 F.3d 1267 (10th Cir. 2020) .............................. 6

Celgene Corp. v. Peter,

931 F.3d 1342 (Fed. Cir. 2019)............................. 12

Ciena Corp. v. Oyster Optics, LLC,

958 F.3d 1157 (Fed. Cir. 2020)............................... 7

Cuozzo Speed Techs., LLC v. Lee,

136 S. Ct. 2131 (2016) .......................................... 10

Davis v. Saul,

963 F.3d 790 (8th Cir. 2020) .................................. 6

Elgin v. Dep’t of Treasury,

567 U.S. 1 (2012) .................................................. 13

Freytag v. Comm’r,

501 U.S. 868 (1991) .......................................passim

Lucia v. SEC,

138 S. Ct. 2044 (2018) ............................................ 6

Oil States Energy Servs., LLC v. Greene’s

Energy Grp., LLC,

138 S. Ct. 1365 (2018) .......................................... 12

iii

TABLE OF AUTHORITIES

(Continued)

Page(s)

Plaut v. Spendthrift Farm, Inc.,

514 U.S. 211 (1995) ................................................ 5

Spansion, Inc. v. Int’l Trade Comm’n,

629 F.3d 1331 (Fed. Cir. 2010)............................. 11

Stern v. Marshall,

564 U.S. 462 (2011) ................................................ 4

Thryv, Inc. v. Click-To-Call Techs., LP,

140 S. Ct. 1367 (2020) .......................................... 10

United States v. Olano,

507 U.S. 725 (1993) ................................................ 4

Yakus v. United States,

321 U.S. 414 (1944) ................................................ 4

STATUTE

19 U.S.C. 1337(a)(1)(B)(i) .......................................... 11

MISCELLANEOUS

Forrest McClellen et al., How Increased

Stays Pending IPR May Affect Venue

Choice, Law360 (Nov. 15, 2019),

https://www.law360.com/articles/122

0066/how-increased-stays-pendingipr-may-affect-venue-choice ................................. 10

Patent Trial and Appeal Board:

iv

TABLE OF AUTHORITIES

(Continued)

Page(s)

St. Jude Med., LLC v. Snyders Heart

Valve LLC,

No. IPR2018-00107, 2018 WL

2086454 (P.T.A.B. May 3, 2018) .......................... 12

Standard Operating Procedure 2

(Revision 10) (Sept. 20, 2018) .............................. 12

Section 337 Statistics: Number Cases In

Which Violation Is Found/Yr, U.S.

Int’l Trade Comm’n (updated July 16,

2020), https://www.usitc.gov/

intellectual_property

/337_statistics_number_cases_which_

violation.htm......................................................... 11

9B Wright & Miller, Federal Practice

and Procedure (3d ed. 2020)................................... 4

1

INTEREST OF AMICUS CURIAE1

Amicus Comcast Cable Communications, LLC is one

of the largest suppliers of cable television programming

in the United States. Comcast’s innovative X1 system is

a cloud-based architecture that provides customers with

numerous ways to obtain video service. Comcast holds

a substantial patent portfolio, and Comcast is involved

frequently in patent litigation before the federal courts.

Accordingly, Comcast has an interest in high-quality patents that represent genuine inventions—and an equally

strong interest in supporting the processes Congress has

enacted to address erroneously granted patents that hinder innovation and encourage abusive litigation. In

Comcast’s experience, inter partes review is an invaluable means of combating weak and overbroad patents,

which often are aggressively enforced by patentholders,

including nonpracticing entities. In light of the aggressive assertion of invalid patents, especially in areas of

emerging technology, Comcast believes that inter partes

review performs a critical function within the patent system.

Comcast’s interests also have been directly affected

by the decision below. Comcast successfully challenged

certain patents before the Patent Trial and Appeal

Board (PTAB), and the patentholders’ appeals of those

favorable rulings were pending when the Federal Circuit

issued the decision below. In reliance on that decision,

Pursuant to Supreme Court Rule 37.6, counsel for amicus curiae state that no counsel for a party authored this brief in whole

or in part, and no party or counsel for a party, or any other person

other than amicus curiae or its counsel, made a monetary contribution intended to fund the preparation or submission of this

brief. All parties have filed blanket consents to the filing of amicus briefs.

1

2

the Federal Circuit vacated the PTAB’s decisions and remanded for re-adjudication before reconstituted PTAB

panels. The Federal Circuit did so despite the fact that

in each case, the patentholder had forfeited any Appointments Clause challenge by failing to raise it before the

PTAB.

INTRODUCTION AND SUMMARY

OF THE ARGUMENT

In this case, the Federal Circuit wrongly held that the

PTAB’s administrative patent judges were invalidly appointed because they are principal officers whom the Appointments Clause requires to be appointed through

presidential nomination and Senate confirmation. The

Federal Circuit thus invalidated the appointments of

over 200 administrative patent judges who collectively

decide hundreds of post-grant validity challenges every

year.

Doctrines of waiver, forfeiture, and administrative

exhaustion would ordinarily limit the potentially sweeping collateral consequences of such a decision. But here,

the Federal Circuit disregarded those important limitations, thereby compounding the disruptive effects of its

decision. Not only did the court excuse the patentholder’s failure to raise any Appointments Clause challenge before the PTAB in this case, but the court also has

subsequently categorically excused the forfeiture of all

patentholders who have belatedly included an Appointments Clause challenge in their appellate briefing. Pursuant to that across-the-board policy, the Federal Circuit

has remanded over 100 cases in which the PTAB has already held the challenged patents invalid for re-adjudication by reconstituted PTAB panels. Pet. 28. The Federal Circuit’s decision thus has had immediate and potentially severe consequences for numerous parties who

have relied on inter partes review and other post-grant

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review proceedings as an expeditious means of challenging invalid patents.

Comcast files this brief to address the Federal Circuit’s blanket forgiveness of patentees’ forfeiture of their

challenges to the PTAB’s constitution. The Federal Circuit’s categorical approach disregards both this Court’s

long-standing treatment of forfeiture in constitutional

cases and the important finality and reliance interests

that forfeiture doctrine protects. The immediate effect

of the court’s ruling is to ensure that potentially hundreds of patents that the PTAB has held invalid will remain in force for the foreseeable future. That will hinder

innovation and competition in realms that should be free

to the public. The Federal Circuit’s approach also imposes significant costs on litigants like Comcast, who

prevailed in challenging patents before the PTAB and

now face the delay and expense associated with relitigating the validity of clearly invalid patents, as well as potential collateral consequences in other pending litigation. And the decision raises significant fairness concerns, as it treats patentees and patent challengers differently for reasons that do not withstand scrutiny.

This Court should grant, at minimum, the petitions

filed by petitioners in this case and the United States in

No. 19-1434 in order to address the Federal Circuit’s Appointments Clause and forfeiture holdings. Comcast

agrees with petitioners in this case that the court of appeals’ forfeiture ruling is an additional reason to grant

certiorari in these cases, and respectfully urges the

Court to grant certiorari with respect to not only the Appointments Clause question, but also the forfeiture question included in the United States’ petition for certiorari.

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ARGUMENT

I. The Federal Circuit’s categorical forfeiture

ruling is wrong, and it disregards the important reliance and finality interests that

forfeiture protects.

A. This Court has long held that constitutional

claims, including separation-of-powers challenges, may

be forfeited. See United States v. Olano, 507 U.S. 725,

731 (1993) (“‘No procedural principle is more familiar to

this Court than that a constitutional right,’ or a right of

any other sort, ‘may be forfeited * * * by the failure to

make timely assertion of the right before a tribunal having jurisdiction to determine it.’”) (quoting Yakus v.

United States, 321 U.S. 414, 444 (1944)). The requirement that litigants properly raise arguments at the first

opportunity “is essential to the orderly administration of

civil justice”: it prevents litigants from “speculat[ing]

with the [tribunal] by letting error go without any comment,” and then seeking a do-over if the initial outcome

is unfavorable. 9B Wright & Miller, Federal Practice

and Procedure § 2472 (3d ed. 2020); accord Freytag v.

Comm’r, 501 U.S. 868, 894 (1991) (Scalia, J., concurring

in part and concurring in the judgment). This Court has

“recognized [that] ‘the value of waiver and forfeiture

rules’” in preventing such “sandbagging” by dissatisfied

litigants is not diminished in cases involving constitutional rights. Stern v. Marshall, 564 U.S. 462, 481-482

(2011). The Court has accordingly enforced forfeiture

even where the litigant belatedly seeks to raise a constitutional challenge or an argument that the tribunal

lacked authority to litigate its claim. See Olano, 507

U.S. at 731; Stern, 564 U.S. at 482 (“If Pierce believed

that the Bankruptcy Court lacked the authority to decide his claim for defamation, then he should have said

so—and said so promptly.”).

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Nonetheless, the Federal Circuit excused respondent

Arthrex’s forfeiture in this case on the ground that “this

case implicates the important structural interests and

separation of powers concerns protected by the Appointments Clause.” Pet. App. 5a. The court of appeals relied

on Freytag, in which this Court considered an Appointments Clause challenge to the appointment of special

trial judges that was raised for the first time on appeal.

But in Freytag itself, the Court excused forfeiture only

after concluding that the case before it was a “rare case[]

in which [the Court] should exercise [its] discretion to

hear petitioners’ challenge.” 501 U.S. at 879.

The Federal Circuit appears to have understood Freytag to hold that any case involving a separation-of-powers challenge would warrant excusing forfeiture. Pet.

App. 5a (“Like Freytag, this case implicates the important structural interests and separation of powers

concerns protected by the Appointments Clause.”). But

since Freytag, this Court has made clear that separationof-powers challenges may be forfeited—leaving no doubt

that Freytag does not sweep as broadly as the Federal

Circuit believed. See, e.g., Plaut v. Spendthrift Farm,

Inc., 514 U.S. 211, 231 (1995) (“[T]he proposition that legal defenses based upon doctrines central to the courts’

structural independence can never be waived simply

does not accord with our cases”). The mere fact that Arthrex brought an Appointments Clause challenge therefore provided no sound basis to excuse its forfeiture in

this case.

B. In subsequent orders in other cases, the Federal

Circuit compounded its error by categorically excusing

patentees’ failure to raise an Appointments Clause challenge before the PTAB. The court of appeals summarily

vacated and remanded dozens of other appeals in which

patentholders raised an Appointments Clause challenge

6

for the first time on appeal—without any express consideration of each case by a panel of judges, and without

attempting to account for individual circumstances. See,

e.g., 20-74 Pet. App. 1a-134a (compiling 61 orders, each

of which summarily vacates one or more appeals on the

basis of the Federal Circuit’s decision in Arthrex).

That across-the-board approach to excusing forfeiture

is irreconcilable with basic forfeiture doctrine. This

Court has emphasized that a court should exercise its

discretion to excuse forfeiture only in exceptional cases.

See Freytag, 501 U.S. at 879; id. at 894 (Scalia, J.) (“appellate courts may, in truly exceptional circumstances,

exercise discretion to hear forfeited claims”). A court

cannot conclude that a case is sufficiently exceptional to

warrant excusing forfeiture without conducting a casespecific analysis of the equities.2 Yet the Federal Circuit

declined to engage in that analysis, even in cases—such

as those of amicus Comcast—in which the appellee informed the court that case-specific equities distinguished the case from Arthrex and required enforcing

forfeiture. See, e.g., 19-1215 Dkt. 64 (Fed. Cir. Nov. 12,

2019).

C. The Federal Circuit’s categorical treatment of forfeiture is particularly concerning because it gives rise to

significant fairness concerns. While the court categorically excused patentees’ forfeiture of their challenges to

the administrative patent judges’ appointments, the

court categorically enforced forfeiture against patent

Other courts of appeals have routinely undertaken that inquiry

in the wake of this Court’s separation-of-powers decisions. See,

e.g., Davis v. Saul, 963 F.3d 790, 793 (8th Cir. 2020) (enforcing

forfeiture of claim that Social Security administrative law judges

were unconstitutionally appointed in light of Lucia v. SEC, 138

S. Ct. 2044 (2018), because case was not exceptional); Carr v.

Comm’r, 961 F.3d 1267, 1273 (10th Cir. 2020) (same).

2

7

challengers who similarly sought to raise the same Appointments Clause argument for the first time on appeal. See generally Ciena Corp. v. Oyster Optics, LLC,

958 F.3d 1157 (Fed. Cir. 2020). The court justified the

disparate treatment on the ground that patent challengers have affirmatively consented to PTAB adjudication

by seeking to institute an inter partes review proceeding,

whereas patentees have made no such affirmative decision. Id. at 1161. But that rationale is inconsistent with

the Federal Circuit’s reliance on Freytag to justify excusing patentees’ forfeiture. In Freytag itself, the litigants

whose forfeiture was excused had consented to adjudication by the special trial judge whose appointment they

later challenged. 501 U.S. at 878. If the Federal Circuit

believed that Freytag justified its categorical excusal of

patentees’ forfeiture, it should have applied the same rationale to patent challengers.

Moreover, the Federal Circuit’s refusal to excuse patent challengers’ forfeiture reinforces the conclusion that

the court should not have categorically excused patentees’ forfeiture. The Federal Circuit reasoned that the equities support enforcing forfeiture when a challenger has

chosen to proceed before the PTAB. Ciena, 958 F.3d at

1161. But if the equities are relevant in that context,

then surely the Federal Circuit should have considered

the equities in the many cases in which patentees raised

the Appointments Clause challenge for the first time on

appeal. In the latter cases, the Board has held the patents invalid and the prevailing patent challengers have

ordered their conduct in reliance on the likelihood that

the agency’s expert conclusions of invalidity will be affirmed on appeal. But despite those reliance interests,

the Federal Circuit declined even to consider the equities

in cases in which the patentee had lost.

8

II. The Federal Circuit’s disregard of patentees’

forfeiture has severe consequences for litigants and the patent system.

The Federal Circuit’s categorical vacatur of over one

hundred PTAB decisions holding patents invalid has significant adverse consequences for litigants and the patent system as a whole.

A. The primary consequence of the Federal Circuit’s

forfeiture ruling is that scores of patents that have been

found unpatentable in reasoned decisions by the PTAB

will remain in force until newly constituted PTAB panels

can re-examine each case. That is true even if the patentee has never contended that the alleged Appointments Clause violation had any bearing on the PTAB’s

invalidity analysis, and even if there is no reasonable

likelihood of a different result on remand. Indeed, many

of the resurrected patents are plainly invalid.

Comcast’s experience is illustrative. In two of the appeals that the Federal Circuit remanded despite the patentholder’s forfeiture, the PTAB had held invalid two

patents that are addressed to remotely scheduling a recording through an interactive program guide displayed

on a television set, and that have been asserted against

Comcast in both district court and the International

Trade Commission (ITC). The PTAB relied on three independently sufficient combinations of prior art in finding the patents invalid. See Nos. 19-1215, -1216, -1218,

-1293, -1294, -1295 (Fed. Cir.). In view of the amount of

prior art on which the PTAB relied and the exhaustiveness of its factual findings, it is highly likely that the decisions would have been affirmed on appeal—and unlikely that the remand will produce a different result.

Similarly, in two of the other remanded appeals,

Comcast had prevailed before the PTAB in challenging

9

a patent related to voice recognition that the patentee

has asserted against Comcast in district court. Once

again, the patent is clearly invalid. The patent itself

acknowledges that multiple voice recognition systems

were in existence at the time of the patent’s filing. See

U.S. Patent No. RE44,326 col. 1 ll. 51-61, col. 4 ll. 50-51

(reissued Jun. 25, 2013). One panel of PTAB judges invalidated the patent on multiple grounds in two inter

partes review proceedings, and a separate panel of PTAB

judges invalidated the patent on different grounds in

covered business method review. See Nos. 19-2368,

-2369 (Fed. Cir.).

But because the patentees raised the Appointments

Clause for the first time on appeal, the Federal Circuit

vacated the PTAB decisions and remanded for re-adjudication. Order at 2, Rovi Guides, Inc. v. Comcast Cable

Commc’ns, LLC, No. 19-1215 (Fed. Cir. Apr. 22, 2020)3;

Order at 2, Promptu Sys. Corp. v. Comcast Cable

Commc’ns, LLC, No. 19-2368 (Fed. Cir. Feb. 27, 2020).

Given that the PTAB has stayed all remanded proceedings pending this Court’s resolution of the Arthrex cases,

these clearly invalid patents will continue to be enforceable for the foreseeable future.

A statement in the United States’ petition in No. 19-1434 could

be read to suggest that the United States understands Rovi to

have raised its Appointments Clause challenge before the PTAB.

19-1434 Pet. 27 (“The government is aware of only a handful of

appeals like Polaris in which litigants’ Appointments Clause

challenges were properly presented to the agency. See, e.g., Order

at 2, Rovi Guides, Inc. v. Comcast Cable Commc’ns, LLC, No. 191215 (Fed. Cir. Apr. 22, 2020).”). That suggestion is incorrect.

Before the Federal Circuit, the government correctly argued that

Rovi had forfeited its Appointments Clause challenge by failing

to raise it before the agency. See, e.g., 19-1215 U.S. Br. 9-13 (Fed.

Cir.).

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10

That result is difficult to square with Congress’s intent in establishing the inter partes review framework.

“[C]oncerned about overpatenting and its diminishment

of competition,” Congress “sought to weed out bad patent

claims efficiently.” Thryv, Inc. v. Click-To-Call Techs.,

LP, 140 S. Ct. 1367, 1374 (2020); accord Cuozzo Speed

Techs., LLC v. Lee, 136 S. Ct. 2131, 2139 (2016). To that

end, Congress limited the appealability of PTAB decisions to avoid “wasting the resources spent resolving patentability and leaving bad patents enforceable.” Thryv,

140 S. Ct. at 1374. But the Federal Circuit’s sweeping

forfeiture ruling accomplishes just that result. It leaves

likely-invalid patents enforceable, without regard to the

possibility of a different conclusion on remand or the resources already expended.

B. The Federal Circuit’s categorical disregard of forfeiture also imposes significant burdens on the parties.

The needless expense and delay of relitigating the invalidity of patents the PTAB has already held invalid are

self-evident. But the Federal Circuit’s remands also undermine parties’ ability to order their conduct around patent invalidity, and inflict uncertainty about the extent

to which companies may innovate in areas covered by

the patents in question. In addition, the remands may

well have collateral effects in corresponding infringement proceedings in which the patent holders are asserting the very patents held invalid.

For instance, defendants in district court infringement actions often initiate inter partes review proceedings to challenge the asserted patents, and courts regularly stay infringement actions upon institution of inter

partes review. See Forrest McClellen et al., How Increased Stays Pending IPR May Affect Venue Choice,

11

Law360 (Nov. 15, 2019).4 Because such stays are often

premised on inter partes review’s promise of a “shorter

reexamination process,” Autoalert, Inc. v. Dominion

Dealer Sols., LLC, No. SACV 12-1661, 2013 WL

8014977, at *4 (C.D. Cal. May 22, 2013) (citation omitted), patentholders have sought to lift such stays in light

of the Federal Circuit’s vacatur and remand. If such

stays are lifted, the parties may then have to litigate infringement claims based on a likely invalid patent, potentially even going to trial. If a reconstituted PTAB

panel ultimately concludes the patent is invalid, considerable judicial and litigant resources will have been

wasted.

Accused infringers face similar adverse consequences

before the ITC, which has become an increasingly popular forum for patent infringement claims. 19 U.S.C.

1337(a)(1)(B)(i). The ITC finds patents valid and infringed in about 70% of investigations.5 Upon finding a

violation, the ITC issues exclusion orders prohibiting importation of the articles in question. Spansion, Inc. v.

Int’l Trade Comm’n, 629 F.3d 1331, 1358 (Fed. Cir.

2010). Inter partes review is therefore often a critical

component of a company’s response to institution of an

ITC proceeding when an asserted patent is likely invalid. The Federal Circuit’s affirmance of a PTAB invalidity holding, which results in the patent’s cancellation,

can be an important avenue for a company to avoid being

4 https://www.law360.com/articles/1220066/how-increased-stays

-pending-ipr-may-affect-venue-choice.

Section 337 Statistics: Number Cases In Which Violation Is

Found/Yr, U.S. Int’l Trade Comm’n (updated July 16, 2020),

https://www.usitc.gov/intellectual_property/337_statistics_number_cases_which_violation.htm.

5

12

subject to a potentially devastating exclusion order on

the basis of an invalid patent.

C. The Federal Circuit’s decision also exacerbates the

existing problem of patentholders “sandbagging” successful patent challengers on appeal by raising a range

of constitutional challenges to inter partes review. Freytag, 501 U.S. at 895 (Scalia, J., concurring in part and

concurring in the judgment). The inter partes review

system is a frequent target of purported constitutional

challenges by patentees whose patents the PTAB has

held invalid. See, e.g., Oil States Energy Servs., LLC v.

Greene’s Energy Grp., LLC, 138 S. Ct. 1365, 1370, 1379

(2018) (rejecting Article III and Seventh Amendment

claims but noting existence of unresolved due process

and takings challenges). Often patentees raise those

claims for the first time on appeal, and the Federal Circuit has in fact excused forfeiture for takings claims that

were not presented to the Board. E.g., Celgene Corp. v.

Peter, 931 F.3d 1342, 1356-1363 (Fed. Cir. 2019); see

also, e.g., Appellant’s Br. 26-58, Mobility Workx, LLC v.

Unified Patents, No. 20-1441 (Fed. Cir. filed July 30,

2020) (raising on appeal a due process claim based on

alleged structural bias). Patentees therefore face no real

consequence for holding back constitutional challenges

while they see whether they prevail before the PTAB,

and successful patent challengers must be prepared to

address a range of new issues on appeal. That is exactly

what forfeiture doctrine is supposed to prevent.

Conversely, requiring litigants to raise constitutional

challenges before the PTAB imposes little burden and

provides important benefits. The Board can and does

consider constitutional questions. See, e.g., Standard

Operating Procedure 2, at 4 (Revision 10) (Sept. 20,

2018) (precedential opinion panels may “address constitutional questions”); St. Jude Med., LLC v. Snyders

13

Heart Valve LLC, No. IPR2018-00107, 2018 WL

2086454, at *4 (P.T.A.B. May 3, 2018) (addressing Appointments Clause challenge). And even if the Board

does not have authority to remedy constitutional flaws

in its structure, the Board at least can consider threshold

statutory questions within its expertise that can aid subsequent judicial review. See Elgin v. Dep’t of Treasury,

567 U.S. 1, 22-23 (2012). Here, for instance, the PTAB

could have considered issues central to the Appointments Clause challenge within the Board’s expertise, including which statutory removal restrictions apply to the

USPTO’s administrative patent judges.

* * *

In sum, the Federal Circuit had no sound basis to excuse Arthrex’s forfeiture in this case—let alone to categorically forgive patentees’ forfeiture in dozens of other

appeals. The court of appeals’ approach imposes severe

and unjustified burdens on the patent challengers, including Comcast, who have relied on PTAB proceedings

to provide a streamlined mechanism for invalidating patents that never should have been issued in the first

place.

14

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

DONALD B. VERRILLI, JR.

Counsel of Record

GINGER D. ANDERS

MUNGER, TOLLES & OLSON LLP

1155 F Street NW, 7th Floor

Washington, DC 20004

(202) 220-1100

donald.verrilli@mto.com

BRIAN J. SPRINGER

MUNGER, TOLLES & OLSON LLP

350 S. Grand Ave., 50th Floor

Los Angeles, CA 90071

AUGUST 3, 2020