Case 2:12-cv-02088-ABC-JCG Document 38

Filed 02/11/13 Page 1 of 2 Page ID #:279

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SQUIRE SANDERS (US) LLP
600 Hansen Way Palo Alto, California 94304

Maryn L. Miller (State Bar # 161761) Maryn.Miller@bcbg.com Erica S. Alterwitz (State Bar # 240377) Erica.Alterwitz@bcbg.com BCBG MAX AZRIA GROUP, INC. 2761 Fruitland Avenue Vernon, CA 90058 Telephone: +1.323.277.5394 Facsimile: +1.323.277.5463 David S. Elkins (State Bar # 148077) David.Elkins@squiresanders.com Joseph P. Grasser (State Bar # 255156) Joseph.Grasser@squiresanders.com SQUIRE SANDERS (US) LLP 600 Hansen Way Palo Alto, CA 94304 Telephone: +1.650.856.6500 Facsimile: +1.650.843.8777 Attorneys for Plaintiff BCBG MAX AZRIA GROUP, INC.

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

BCBG MAX AZRIA GROUP, INC., Plaintiff, v. STRETTA MODA, LLC, a California limited liability company, Defendant.

Case No. 2:12-CV-2088-ABC (JCGx) PLAINTIFF BCBG MAX AZRIA GROUP, INC.S NOTICE REGARDING LACK OF COOPERATION IN SCHEDULING MEDIATION Mediation Deadline: February 19, 2013 Discovery Cutoff: April 26, 2013 Pre-Trial Conf.: Sep. 16, 2013 Trial Date: Oct. 1, 2013

BCBGS NOTICE REGARDING LACK OF COOPERATION IN SCHEDULING MEDIATION CASE NO. CV12:2088 ABC (JCGx)

Case 2:12-cv-02088-ABC-JCG Document 38

Filed 02/11/13 Page 2 of 2 Page ID #:280

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

Plaintiff BCBG Max Azria Group, Inc. (BCBG) respectfully requests the Courts assistance in scheduling mediation in this matter. With the parties having elected mediation through the Courts panel of private mediators as the method of ADR in this matter, the Court set February 20, 2013 as the mediation deadline. Doc. No. 19. The parties cooperatively agreed to David Grace of Loeb & Loeb as the mediator, and agreed to mediation on February 5, 2013. On January 18, 2013, BCBG requested that defendant Stretta Moda, LLC (Stretta) and Mr. Grace agree to reschedule the mediation for a later date because BCBG had yet to receive any discovery from Stretta and had a motion to compel scheduled for hearing on February 5, the same day scheduled for mediation. Strettas counsel failed to respond to that request or to any of the multiple communications from both BCBG and the mediator since then. A true and correct copy of the email string reflecting the foregoing is attached as Exhibit A. BCBG brings this issue to the Court with the greatest of reluctance. BCBG does so only because of the impending February 20 deadline and the failure of Strettas counsel to respond to BCBGs proposed stipulation in connection with its motion to compel, the absence of any opposition and Strettas failure to appear at the February 5 motion to compel hearing. Put simply, appearances suggest that Strettas counsel may lack authorization to act or is otherwise disabled from acting in this case, further suggesting that Court intervention may be appropriate. Dated: February 11, 2013 Respectfully submitted, By: /s/ David S. Elkins David S. Elkins Joseph P. Grasser SQUIRE SANDERS (US) LLP Erica S. Alterwitz Maryn L. Miller BCBG MAX AZRIA GROUP, INC. Attorneys for Plaintiff BCBG MAX AZRIA GROUP, INC.
SANFRANCISCO/482014.2

28
SQUIRE SANDERS (US) LLP
600 Hansen Way Palo Alto, California 94304

BCBGS NOTICE REGARDING LACK OF COOPERATION IN SCHEDULING MEDIATION CASE NO. CV12:2088 ABC (JCGx)

Case 2:12-cv-02088-ABC-JCG Document 38-1 #:281

Filed 02/11/13 Page 1 of 10 Page ID

Exhibit A

Case 2:12-cv-02088-ABC-JCG Document 38-1 #:282 Grasser, Joseph P.

From: Sent: To: Cc: Subject: Attachments:

Filed 02/11/13 Page 2 of 10 Page ID

Grasser, Joseph P. Thursday, February 07, 2013 12:55 PM 'David Grace' 'Candace Medina'; Elkins, David S.; 'Doug Linde'; ''Erica Alterwitz' (Erica.Alterwitz@bcbg.com)'; Fontana, Danni RE: USDC ADR - BCBG Max Azria Group, Inc. v. Stretta Moda, LLC, Case No. 12cv-02088-ABC-JCG - 930998-10029 130205 Order Granting BCBG's Motion to Compel Responses to Rogs and RFPs.pdf

Dear Mr. Grace, The attached order was issued today on BCBGs motion to compel. While we still have not heard from Mr. Linde regarding the date for the re-scheduled mediation, February 19 still works for BCBG. Regards, Joe

Joseph P. Grasser
joseph.grasser@squiresanders.com T +1 650 843 3386 From: David Grace [mailto:dgrace@loeb.com] Sent: Wednesday, January 30, 2013 1:37 PM To: Elkins, David S.; 'Doug Linde' Cc: Candace Medina; Grasser, Joseph P. Subject: RE: USDC ADR - BCBG Max Azria Group, Inc. v. Stretta Moda, LLC, Case No. 12-cv-02088-ABC-JCG - 93099810029

Doug?
From: Elkins, David S. [mailto:David.Elkins@squiresanders.com] Sent: Wednesday, January 30, 2013 1:41 AM To: David Grace; 'Doug Linde' Cc: Candace Medina; Grasser, Joseph P. Subject: RE: USDC ADR - BCBG Max Azria Group, Inc. v. Stretta Moda, LLC, Case No. 12-cv-02088-ABC-JCG - 93099810029

David, We have not heard from Doug in response to our original email, your email with alternative dates, or our email suggesting Feb. 19. At the same time, Doug did not respond to the proposed joint stipulation for BCBGs proposed motion to compel, nor did Stretta respond to the motion to compel itself (the hearing is scheduled for next Tuesday, Feb. 5). Regards, David
1

Case 2:12-cv-02088-ABC-JCG Document 38-1 #:283

Filed 02/11/13 Page 3 of 10 Page ID

From: David Grace [mailto:dgrace@loeb.com] Sent: Tuesday, January 29, 2013 9:27 PM To: Elkins, David S.; 'Doug Linde' Cc: Candace Medina Subject: RE: USDC ADR - BCBG Max Azria Group, Inc. v. Stretta Moda, LLC, Case No. 12-cv-02088-ABC-JCG - 93099810029

Doug and David What is the status? Best regards,

David W. Grace Loeb & Loeb LLP 10100 Santa Monica Boulevard, Suite 2200 Los Angeles, California 90067 Tel. 1-310-282-2000 Direct 1-310-282-2108 Fax 1-310-282-2200 dgrace@loeb.com www.loeb.com

From: David Grace Sent: Friday, January 25, 2013 5:41 PM To: 'Elkins, David S.'; Grasser, Joseph P. Cc: 'Doug Linde'; 'Gail_Killefer@cacd.uscourts.gov'; 'Monica Boone (monica_boone@cacd.uscourts.gov)'; Candace Medina; Abdul-Rahim, Regina D.; Erica Alterwitz (Erica.Alterwitz@bcbg.com) Subject: RE: USDC ADR - BCBG Max Azria Group, Inc. v. Stretta Moda, LLC, Case No. 12-cv-02088-ABC-JCG - 93099810029

Doug?
From: Elkins, David S. [mailto:David.Elkins@squiresanders.com] Sent: Friday, January 25, 2013 5:01 PM To: David Grace; Grasser, Joseph P. Cc: 'Doug Linde'; 'Gail_Killefer@cacd.uscourts.gov'; 'Monica Boone (monica_boone@cacd.uscourts.gov)'; Candace Medina; Abdul-Rahim, Regina D.; Erica Alterwitz (Erica.Alterwitz@bcbg.com) Subject: RE: USDC ADR - BCBG Max Azria Group, Inc. v. Stretta Moda, LLC, Case No. 12-cv-02088-ABC-JCG - 93099810029

David: Feb. 19 works best for plaintiff and will maximize whatever opportunity exists of receiving discovery from Stretta before then. Thanks and regards, David
From: David Grace [mailto:dgrace@loeb.com] Sent: Friday, January 25, 2013 4:06 PM To: Grasser, Joseph P.
2

Cc: 'Doug Linde'; 'Gail_Killefer@cacd.uscourts.gov'; 'Monica Boone (monica_boone@cacd.uscourts.gov)'; Candace Medina; Elkins, David S.; Abdul-Rahim, Regina D. Subject: RE: USDC ADR - BCBG Max Azria Group, Inc. v. Stretta Moda, LLC, Case No. 12-cv-02088-ABC-JCG - 93099810029

Case 2:12-cv-02088-ABC-JCG Document 38-1 #:284

Filed 02/11/13 Page 4 of 10 Page ID

Greetings The following dates might work: Friday, Feb. 8th, Friday Feb. 15th, Tues. Feb. 19th. Best,

David W. Grace Loeb & Loeb LLP 10100 Santa Monica Boulevard, Suite 2200 Los Angeles, California 90067 Tel. 1-310-282-2000 Direct 1-310-282-2108 Fax 1-310-282-2200 dgrace@loeb.com www.loeb.com

From: Grasser, Joseph P. [mailto:Joseph.Grasser@squiresanders.com] Sent: Thursday, January 24, 2013 11:38 AM To: David Grace Cc: 'Doug Linde'; 'Gail_Killefer@cacd.uscourts.gov'; 'Monica Boone (monica_boone@cacd.uscourts.gov)'; Candace Medina; Elkins, David S.; Abdul-Rahim, Regina D. Subject: RE: USDC ADR - BCBG Max Azria Group, Inc. v. Stretta Moda, LLC, Case No. 12-cv-02088-ABC-JCG - 93099810029

Dear Mr. Grace: We still have not heard from Mr. Linde on this issue, but, in the meantime, could you please provide some dates later in February when you are available? Thanks Joe
Joseph P. Grasser
joseph.grasser@squiresanders.com T +1 650 843 3386 From: David Grace [mailto:dgrace@loeb.com] Sent: Friday, January 18, 2013 7:53 PM To: Grasser, Joseph P. Cc: Doug Linde; Gail_Killefer@cacd.uscourts.gov; Monica Boone (monica_boone@cacd.uscourts.gov); Candace Medina; Elkins, David S.; Abdul-Rahim, Regina D. Subject: Re: USDC ADR - BCBG Max Azria Group, Inc. v. Stretta Moda, LLC, Case No. 12-cv-02088-ABC-JCG - 93099810029

Please let me know if the parties agree. Sent from my iPhone

3

Case 2:12-cv-02088-ABC-JCG Document 38-1 #:285 David W. Grace 1-310-282-2108

Filed 02/11/13 Page 5 of 10 Page ID

On Jan 18, 2013, at 10:18 AM, "Grasser, Joseph P." <Joseph.Grasser@squiresanders.com> wrote: Dear Mr. Grace and Mr. Linde: We write to request that the mediation in this matter be rescheduled for a date later in February (but before the February 20 deadline). We make this request because BCBG has yet to receive any meaningful discovery responses from Stretta and has, therefore, filed a motion to compel. Unfortunately, while BCBG had attempted to have the motion heard before the February 5 mediation date, the hearing is now set for February 5 at 2:00 PM, which conflicts with the current mediation date. More importantly, BCBG believes that there is little to be gained at the mediation at this stage, as BCBG is unable to meaningfully evaluate potential settlement options absent the information that is the subject of the pending motion. Accordingly, please let us know what other dates work for the mediation after February 5 but before (or on) February 20. Thank you, Joe
Joseph P. Grasser
joseph.grasser@squiresanders.com T +1 650 843 3386 From: David Grace [mailto:dgrace@loeb.com] Sent: Thursday, December 20, 2012 2:00 PM To: Doug Linde; Elkins, David S. Cc: 'Gail_Killefer@cacd.uscourts.gov'; Monica Boone (monica_boone@cacd.uscourts.gov); Grasser, Joseph P.; Candace Medina Subject: RE: USDC ADR - BCBG Max Azria Group, Inc. v. Stretta Moda, LLC, Case No. 12-cv-02088-ABCJCG - 930998-10029

Greetings OK. Lets plan on Tuesday, February 5th at 10:00 am at my offices. Best regards, Dave

David W. Grace Loeb & Loeb LLP 10100 Santa Monica Boulevard, Suite 2200 Los Angeles, California 90067 Tel. 1-310-282-2000 Direct 1-310-282-2108 Fax 1-310-282-2200 dgrace@loeb.com www.loeb.com
4

Case 2:12-cv-02088-ABC-JCG Document 38-1 #:286

Filed 02/11/13 Page 6 of 10 Page ID

From: Doug Linde [mailto:dal@lindelaw.net] Sent: Thursday, December 20, 2012 11:07 AM To: Elkins, David S.; David Grace Cc: 'Gail_Killefer@cacd.uscourts.gov'; Monica Boone (monica_boone@cacd.uscourts.gov); Grasser, Joseph P. Subject: RE: USDC ADR - BCBG Max Azria Group, Inc. v. Stretta Moda, LLC, Case No. 12-cv-02088-ABCJCG - 930998-10029

Likewise for the Defendant. Thanks, -Doug

From: Elkins, David S. [mailto:David.Elkins@squiresanders.com] Sent: Thursday, December 20, 2012 11:04 AM To: David Grace; Doug Linde Cc: 'Gail_Killefer@cacd.uscourts.gov'; Monica Boone (monica_boone@cacd.uscourts.gov); Grasser, Joseph P. Subject: RE: USDC ADR - BCBG Max Azria Group, Inc. v. Stretta Moda, LLC, Case No. 12-cv-02088-ABCJCG - 930998-10029

David: Many thanks. Either is day is good for BCBG and we can start at your convenience. Best, David
From: David Grace [mailto:dgrace@loeb.com] Sent: Wednesday, December 19, 2012 6:15 PM To: Elkins, David S.; dal@lindelaw.net Cc: 'Gail_Killefer@cacd.uscourts.gov'; Monica Boone (monica_boone@cacd.uscourts.gov); Grasser, Joseph P. Subject: RE: USDC ADR - BCBG Max Azria Group, Inc. v. Stretta Moda, LLC, Case No. 12-cv-02088-ABCJCG - 930998-10029

Hi David How about Tuesday, February 5th or Thursday, February 7th? Best, Dave

David W. Grace Loeb & Loeb LLP 10100 Santa Monica Boulevard, Suite 2200
5

Case 2:12-cv-02088-ABC-JCG Document 38-1 #:287

Los Angeles, California 90067 Tel. 1-310-282-2000 Direct 1-310-282-2108 Fax 1-310-282-2200 dgrace@loeb.com www.loeb.com

Filed 02/11/13 Page 7 of 10 Page ID

From: Elkins, David S. [mailto:David.Elkins@squiresanders.com] Sent: Wednesday, December 19, 2012 5:50 PM To: David Grace; dal@lindelaw.net Cc: 'Gail_Killefer@cacd.uscourts.gov'; Monica Boone (monica_boone@cacd.uscourts.gov); Grasser, Joseph P. Subject: RE: USDC ADR - BCBG Max Azria Group, Inc. v. Stretta Moda, LLC, Case No. 12-cv-02088-ABCJCG - 930998-10029

David: Thanks very much for the follow up. Given where we are in discovery, a mediation the last week of January or first two weeks of February make the most sense. BCBGs client representative and outside counsel both have good availability during those weeks. Perhaps you could reply with 3 or so days/times that work for you and we can then indicate whether we are collectively available? Refards, David
From: David Grace [mailto:dgrace@loeb.com] Sent: Friday, December 14, 2012 6:57 PM To: Elkins, David S.; dal@lindelaw.net Cc: 'Gail_Killefer@cacd.uscourts.gov'; Monica Boone (monica_boone@cacd.uscourts.gov); Grasser, Joseph P. Subject: RE: USDC ADR - BCBG Max Azria Group, Inc. v. Stretta Moda, LLC, Case No. 12-cv-02088-ABCJCG - 930998-10029

I am resending this with a corrected email address for Douglas Linde.

From: David Grace Sent: Friday, December 14, 2012 6:52 PM To: 'Elkins, David S.'; dal@lindelaw.com Cc: 'Gail_Killefer@cacd.uscourts.gov'; Monica Boone (monica_boone@cacd.uscourts.gov); Grasser, Joseph P. Subject: RE: USDC ADR - BCBG Max Azria Group, Inc. v. Stretta Moda, LLC, Case No. 12-cv-02088-ABCJCG - 930998-10029

Greetings Just following to see if you want to schedule a mediation date. Best regards, Dave

David W. Grace
6

Case 2:12-cv-02088-ABC-JCG Document 38-1 #:288

Loeb & Loeb LLP 10100 Santa Monica Boulevard, Suite 2200 Los Angeles, California 90067 Tel. 1-310-282-2000 Direct 1-310-282-2108 Fax 1-310-282-2200 dgrace@loeb.com www.loeb.com

Filed 02/11/13 Page 8 of 10 Page ID

From: Elkins, David S. [mailto:David.Elkins@squiresanders.com] Sent: Wednesday, September 19, 2012 8:20 PM To: David Grace; dal@lindelaw.com Cc: 'Gail_Killefer@cacd.uscourts.gov'; Monica Boone (monica_boone@cacd.uscourts.gov); Grasser, Joseph P. Subject: RE: USDC ADR - BCBG Max Azria Group, Inc. v. Stretta Moda, LLC, Case No. 12-cv-02088-ABCJCG - 930998-10029

Dave: We have not yet discussed potential mediation dates. BCBG would like a modicum of discovery before mediating and is in the process of following up on Strettas objections to requests for production and interrogatories. We suggest jointly coming back to you with some proposed dates early next week after Doug Linde and Joe Grasser or I have an opportunity to discuss the parties preferences as to schedule. Best regards, David
From: David Grace [mailto:dgrace@loeb.com] Sent: Wednesday, September 19, 2012 1:07 PM To: Elkins, David S.; dal@lindelaw.com Cc: 'Gail_Killefer@cacd.uscourts.gov'; Monica Boone (monica_boone@cacd.uscourts.gov) Subject: USDC ADR - BCBG Max Azria Group, Inc. v. Stretta Moda, LLC, Case No. 12-cv-02088-ABC-JCG - 930998-10029

Greetings As you may know, I was assigned as the panel mediator for this case. Pursuant to General Order 11-10, I am required to communicate with you for the purposes of setting up a mediation.
I understand that the deadline to conduct the mediation is February 20, 2013. Have you discussed

proposed dates? The General Order suggests that we discuss the following topics: (a) fixing a mutually convenient date, time and place for the mediation; (b) the procedures to be followed during the mediation; (c) who shall attend the session on behalf of each party; (d) what material or exhibits shall be provided to the mediator prior to the mediation or brought by the parties to the mediation; (e) any issues or matters that the mediator would like the parties to address in their written mediation statements; (f) page limitations for mediation statements; (g) whether the parties are likely to want to continue beyond the three pro bono hours offered by the panel
7

Case 2:12-cv-02088-ABC-JCG Document 38-1 Filed 02/11/13 Page 9 of 10 Page ID #:289 member and, if so, the terms and rates of the panel member; and (h) any other matters that might enhance the quality of the mediation. http://www.cacd.uscourts.gov/attorneys/adr I suggest that we conduct the mediation in my offices. If so, I will need a complete list of the participants in advance for planning and to provide to building security for access. Attached below for your convenience is a copy of Rule 16-15.5. In addition to the requirements of the order and rule, I would ask and encourage the attorneys to come (1) having identified all anticipated deal points, (2) having prepared and fully discussed with their respective clients a settlement position and offer, and (3) having a draft settlement agreement form. Best regards, Dave ********************* L.R. 16-15.5 Requirements for Settlement Procedures. Regardless of the settlement procedure selected, the following requirements shall apply unless otherwise ordered by the trial judge or the settlement officer: (a) STATEMENT OF CASE - The parties shall submit in writing to the settlement officer, in camera (but not file), a confidential settlement statement (not to exceed five (5) pages) setting forth the partys statement of the case and the partys settlement position, including the last offer or demand made by that party and a separate statement of the offer or demand the party is prepared to make at the settlement conference. This confidential settlement statement shall be delivered to the settlement officer, at least five (5) days before the date of the conference. (b) APPEARANCE BY PARTY - Each party shall appear at the settlement proceeding in person or by a representative with full authority to settle the case which in the case of lawsuits brought against the United States or any of its agencies as a party, shall involve the attendance of an attorney charged with responsibility for the conduct of the case and who has final settlement authority as provided by his or her superiors. Parties residing outside the District may have a representative with final settlement authority available by telephone during the entire proceeding in lieu of personal appearance. (c) APPEARANCE BY LEAD TRIAL ATTORNEY - Each party shall be represented at the settlement proceeding by the attorney who is expected to try the case, unless excused by the settlement officer. (d) PREPARATION BY PARTY - Each party shall have made a thorough analysis of the case prior to the settlement proceeding and shall be fully prepared to discuss all economic and noneconomic factors relevant to a full and final settlement of the case.
David W. Grace Loeb & Loeb LLP 10100 Santa Monica Boulevard, Suite 2200 Los Angeles, California 90067 Tel. 1-310-282-2000 Direct 1-310-282-2108 Fax 1-310-282-2200
8

Case 2:12-cv-02088-ABC-JCG Document 38-1 Filed 02/11/13 Page 10 of 10 Page ID #:290

dgrace@loeb.com www.loeb.com

CONFIDENTIALITY NOTICE: This e-mail transmission, and any documents, files or previous e-mail messages attached to it may contain confidential information that is legally privileged. If you are not the intended recipient, or a person responsible for delivering it to the intended recipient, you are hereby notified that any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. If you have received this transmission in error, please immediately notify the sender. Please destroy the original transmission and its attachments without reading or saving in any manner. Thank you, Loeb & Loeb LLP.

--------------------------------------------------------------------37 Offices in 18 Countries This message is confidential and may be legally privileged or otherwise protected from disclosure. If you are not the intended recipient, please telephone or email the sender and delete this message and any attachment from your system; you must not copy or disclose the contents of this message or any attachment to any other person. Squire Sanders (US) LLP is part of the international legal practice Squire Sanders which operates worldwide through a number of separate legal entities. Please visit www.squiresanders.com for more information. #US ---------------------------------------------------------------------