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USDC IN/ND case 1:19-cv-00282-HAB-SLC document 7 filed 06/25/19 page 1 of 19

UNITED STATES DISTRICT COURT


NORTHERN DISTRICT OF INDIANA

Rieke LLC, )
) Case No.
Plaintiff, )
) Judge
vs. )
)
Tecnocraft Industries India Ltd., )
)
Defendant. )

Memorandum in Support of Rieke’s Motion for Preliminary Injunction

Defendant Technocraft Industries India Ltd., an Indian company, has entered the

United States and is offering for sale a knock-off copy of one of Rieke’s patented, hallmark

products known as the Flexspout II® closure. Rieke had asked Technocraft to stop

infringing, but Technocraft refused and denied facts that are publicly available in

contradiction to Technocraft’s false and obfuscating position.

Given no choice, Rieke must defend itself and its employees in Auburn, Indiana,

who make the patented Flexspout II closure, from unfairly losing both jobs and customers

to a foreign, low-cost manufacturer that did nothing more than copy Rieke’s patented

product. The requested injunction is needed to maintain the status quo and prevent

Technocraft from further eroding Rieke’s market share, damaging its reputation and

goodwill with its customers and in the marketplace, and causing job loss and other

irreparable harm to Rieke’s business until this matter can be heard on the merits.

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Factual Background

A. Rieke Is an Innovative World Leader in Designing Container Closures

Since starting its operations in Auburn, Indiana in 1921, Rieke designs,

manufactures, and sells closures and dispensing systems in industries ranging from food

and beverage, pharmaceutical, and personal care to paints, solvents, oils, and lubricants.

(D. Taylor Decl. ¶ 5 (Ex. A).) From the beginning, Rieke has always created innovative

closures and dispensing products that drove new business. For example, Theodore W.

Rieke revolutionized the steel drum industry by inventing the first mechanically inserted

plug and flange assembly for steel drums. (Id. ¶ 3.)

From those humble beginnings, Rieke has grown into a world leader in innovative

closures for industrial drums and open head containers and dispensers for consumer

products. (D. Taylor Decl. ¶ 4.) Through its innovations, the USPTO has awarded Rieke

with more than 300 patents, and Rieke has been awarded an additional 1,000 patents

worldwide. (Id. ¶ 6.) With these innovative, patented products, Rieke has enjoyed

significant commercial success in the industry. (Id. ¶ 7.) This success stems from Rieke’s

substantial investment in design innovation, product development, and its engineering

and manufacturing capabilities. (Id.)

B. Rieke Develops its Hallmark Flexspout II Closure and Receives Patents

Rieke’s product development programs have provided innovative and proprietary

product solutions such as the patented Flexspout II flexible pouring spout, which is one of

Rieke’s hallmark products. (D. Taylor Decl. ¶ 8.) Rieke manufactures its Flexspout II

closure in Auburn, Indiana. (Id. ¶ 9.)

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As shown in Figure 1 below, Rieke’s Flexspout II closure is a retractable plastic pour

spout that can be crimped on to a drum, pail, can, or other container. (D. Taylor Decl. ¶

10.)

Fig. 1
Rieke’s Flexspout II closure in closed (left) and extended (right) positions.

The Flexspout II closure offers a reliable seal and has a tamper evident cap with a

pull tab for fast removal, as shown in the photo on the right in Figure 1 above. (D. Taylor

Decl. ¶ 10.) When the spout is closed, it has a low profile for ease of stacking as shown in

Figure 2 below. (Id.)

Fig. 2
Rieke’s Flexspout II closure crimped on to a 5-gallon container, closed for ease of stacking.

As shown in Figure 3 below, when crimped on to a container, the Flexspout II

closure can be extended for use in pouring liquid from the container.

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Fig. 3
Rieke’s Flexspout II closure crimped on to a container and extended.

When in the extended position, the Flexspout II closure can be bent and locked

into place in one direction due to its unique memory band feature. Figure 4 below shows

Rieke’s Flexspout II closure crimped on to a container, extended and locked in position

for use in pouring liquid from the container.

Fig. 4
Rieke’s Flexspout II closure crimped on to a container, extended, and locked.

Rieke’s products have introduced several patented advantages that had not

previously existed in other similar products. (D. Taylor Decl. ¶ 11.) The patented anti-glug

feature unique to Rieke’s Flexspout II closures helps prevent chemicals from splashing

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when pouring occurs out of the storage containers. (Id. ¶ 12.) Rieke’s Flexspout II closure

also includes a tamper-evident feature that stops third parties from refill and resell the

containers as “new.” (Id.)

Rieke has spent millions of dollars and countless employee hours on research and

development, branding, obtaining intellectual property, marketing, and sales efforts

related to its Flexspout II. (D. Taylor Decl. ¶ 13.) Rieke also markets its Flexspout II

through sales brochures, providing samples to existing and potential customers,

preparing and giving presentations, visiting customers, among other means. (Id.)

To protect its innovative designs, Rieke has obtained patents on the Flexspout II

closure, including U.S. Patent Nos. 8,292,133 (the “’133 patent”), D608,641 (the “’641

patent”), and D610,007 (the “’007 patent”) (collectively, the “Patents”).

C. Technocraft Has Offered for Sale a Copy of


Rieke’s Flexspout II closure in the U.S. at a Lower Price

Technocraft is an Indian company that competes with Rieke in the United States.

(D. Taylor Decl. ¶ 14.) Technocraft offers for sale identical products made by Rieke at a

much lower price point. (Id.) Rieke has lost significant business to Technocraft in this

manner. (Id.)

Technocraft’s Managing Director, Sharad Kumar Saraf, commonly visits the U.S. to

further develop business in this market. (D. Pritchett Decl. ¶ 3 (Ex. B).) In April 2018, Mr.

Saraf approached Rieke’s trade show booth at the Industrial Pack Expo in Atlanta,

Georgia, and inspected the Flexspout II samples at Rieke’s booth very closely. (J.

Greenfield Decl. ¶ 3 (Ex. C).) Mr. Saraf asked a Rieke representative numerous questions

about the Flexspout II closure and the Patents that protect them. (Id.) Rieke explained to

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Mr. Saraf that the Flexspout II closure is patent protected and, based on Technocraft’s

business model, Rieke would protect its innovations and defend itself if Technocraft

copied Rieke’s innovative designs. (Id.)

Since then, Rieke has found on Technocraft’s website that Technocraft makes,

imports, offers for sale, and sells infringing closures (the “Accused Products”), including,

but not limited to, Technocraft’s 63C-AGL-F 63mm “Canseal closure.”1 (See, e.g., D. Taylor

Decl. ¶ 15; Technocraft Product Data Sheet (Ex. D).) Figure 5 below shows Technocraft’s

63C-AGL-F 63mm Canseal closure, one example of the Accused Products being

manufactured and sold by Technocraft, as it was shown on a Product Data Sheet on

Technocraft’s website. (Id.) While Technocraft has removed these photos from its

website, Rieke performed a search on Internet Archive that shows that Technocraft had

those photos on its website in January 2019. (See id.) Firmenich, the name on

Technocraft’s Accused Product in Figure 5 below, is a Rieke customer in the United States

for its Flexspout® II closures. (D. Taylor Decl. ¶ 16.) Rieke believes that Technocraft has

been secretly approaching Rieke’s customers and offering for sale its knock-off Accused

Products at a price much lower than Rieke. (Id. ¶ 17.)

1
Although Rieke presently only identifies model number 63C-AGL-F, Rieke has concurrently moved for
expedited discovery to determine what other model numbers are Accused Products that Technocraft has
offered for sale or sold. Those model numbers are collectively the Accused Products.

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Fig. 5
Technocraft’s infringing 63C-AGL-F 63mm Canseal Closure.

The Accused Products are copies of Rieke’s Flexspout II closures. Technocraft’s

manufacture, use, importation, offers to sell, and sales of the Accused Products infringe at

least Rieke’s ’133 patent, ’007 patent, and ’641 patent.

D. Technocraft Responds to Rieke with Incorrect


Statements that Contradict the Facts that Rieke Gathered

In an attempt to resolve this issue without litigation, Rieke’s President called

Technocraft’s Managing Director, Sharad Kumar Saraf, to identify Rieke’s grave concerns

regarding patent infringement and demand that Technocraft stop such activities. (D.

Pritchett Decl. ¶ 4.) Mr. Saraf asked for a letter to identify the claim and that he would

look into our claim. (Id.)

Rieke provided in writing both its patents and infringement claim to Technocraft.

(See 5/7/19 Letter from D. Cupar to S.K. Saraf (Ex. E).) Rieke requested information about

which customers Technocraft approached and whether it made any sales. (Id.) Rieke also

asked that Technocraft confirm that it stopped importing, offering for sale, and selling

the Accused Products through an affidavit. (Id.)

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Technocraft, through its U.S. counsel, responded to Rieke’s letter. (6/3/19 Letter

from E. Ericksen to D. Cupar (Ex. F).) Technocraft, however, did not identify its Accused

Product that Rieke knew about from Technocraft’s website. (See id.) Instead, Technocraft

selectively raised and addressed two different products and argued that they did not

infringe. (Id.) Technocraft’s response, which made no mention of the Accused Products,

made it clear to Rieke that Technocraft was not being forthright about which spouts it

has been offering for sale or selling.

Rieke has had no choice but to defend itself, its customers, and its employees in

Auburn who make the patented Flexspout II closure. Rieke has filed its complaint against

Technocraft and moved for preliminary injunction to maintain the status quo and to stop

Technocraft from any further infringing activities and irreparable harm to Rieke. (ECF #1.)

Rieke also has moved for expedited discovery to get to the bottom of the extent of

Technocraft’s infringing activities and how that further irreparably harms Rieke.

Law and Argument

A. Legal standard

The legal standard for a preliminary injunction in patent cases is well known. A

movant is entitled to a preliminary injunction if it establishes: (1) a likelihood of success

on the merits; (2) it is likely to suffer irreparable harm in the absence of a preliminary

injunction; (3) the balance of equities tips in its favor; and (4) an injunction is in the

public interest. Metalcraft of Mayville, Inc. v. The Toro Co., 848 F.3d 1358, 1363 (Fed. Cir.

2017) (applying Seventh Circuit and Federal Circuit law applies to injunction motion).

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B. Rieke Is Likely to Succeed on the Merits

To establish a likelihood of success on the merits in a patent infringement case, “a

patentee must show that it will likely prove infringement of the asserted claims and that

its infringement claim will likely withstand the alleged infringer’s challenges to patent

validity and enforceability.” Metalcraft of Mayville, Inc. v. The Toro Co., 848 F.3d 1358, 1364

(Fed. Cir. 2017); see also Titan Tire Corp. v. Case New Holland, Inc., 566 F.3d 1372, 1376

(Fed. Cir. 2009) (design patents).

1. Rieke’s Patents Are Valid

As a matter of law, a “patent shall be presumed valid.” 35 U.S.C. § 282(a). Rieke’s

patents enjoy “the same presumption of validity during preliminary injunction

proceedings as at other stages of litigation.” Titan Tire Corp. v. Case New Holland, Inc.,

566 F.3d 1372, 1377 (Fed. Cir. 2009).

2. Technocraft Infringes Rieke’s ’133 Utility Patent

Figure 6 below shows that Technocraft’s 63C-AGL-F 63 mm Canseal Closure is

visibly identical to Rieke’s Flexspout II closure that is covered by Rieke’s three Patents. A

comparison of the products on its face shows that Technocraft’s 63C-AGL-F 63 mm

Canseal Closure is a knockoff to Rieke’s patented Flexspout II closure.

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Fig. 6
Rieke’s Flexspout II (left) and Technocraft’s 63C-AGL-F 63mm Canseal Closure (right)

A patent infringement analysis involves the two-step process of “construing the

claims and comparing the properly construed claims to the accused product.” Tinnus

Enterprises, LLC v. Telebrands Corp., 846 F.3d 1190, 1203 (Fed. Cir. 2017) (quoting

Advanced Steel Recovery, LLC v. X–Body Equip., Inc., 808 F.3d 1313, 1316 (Fed. Cir. 2015)).

Where, as here, the claim terms consist of common, easy-to-understand English words

that are used consistent with their ordinary and customary meaning, courts generally

decline to issue any formal construction because the meaning is clear from the words

themselves and formal construction may actually complicate things. See Finjan, Inc. v.

Secure Computing Corp., 626 F.3d 1197, 1207 (Fed. Cir. 2010); see also Biotec Biologische

Naturverpackungen GmbH & Co. v. Biocorp, Inc., 249 F.3d 1341, 1349 (Fed. Cir. 2001)

(affirming decision not to construe “melting” because it carried its ordinary meaning).

Rieke’s ’133 patent issued on October 23, 2012 and is directed to a vented closure

assembly for a container. The claim chart attached as Exhibit G to this motion proves that

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the Technocraft canseal closure infringe each claim of the ’133 patent. Thus, Rieke has

shown more than a likelihood of success on the merits for the ’133 patent.2

3. Technocraft Infringes Rieke’s ’641 Design Patent

With a design patent, the central inquiry is whether an “ordinary observer” who is

familiar with the prior art, would find the overall appearance of the accused product to be

“substantially the same” as the overall appearance of the patented design, or to “embody

the claimed design or any colorable imitation thereof.” Egyptian Goddess, Inc. v. Swisa,

Inc., 543 F.3d 665, 677–78 (Fed. Cir. 2008). To ease the adjudication of a preliminary

injunction motion regarding design patents, a district court may dispense with any

“attempt to provide a detailed verbal description of the claimed design, as is typically

done in the case of utility patents.” Id at 679. For this reason, no formal claim

construction is required.

The ’641 patent issued on January 26, 2010 and is directed to an ornamental design

for a closure for a container with retaining ring. See ’641 Patent (Ex. H). As can be seen in

the chart below, at least one Accused Product, Technocraft’s 63C-AGL-F 63mm Canseal

closure, plainly infringes the ’641 patent. They are substantially similar from an ordinary

observer’s perspective.

2
Rieke has contemporaneously filed a motion for expedited discovery that seeks more information about
the configuration of Technocraft’s Accused Products. With that information, Rieke expects that it can
further show likelihood of success on proving infringement on all claims of the ’133 patent with greater
detail.

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’641 Patent Technocraft’s 63C-AGL-F 63mm


Canseal Closure

Rieke has thus shown a likelihood of success on the merits as to the ’641 patent.

4. Technocraft Infringes the ’007 Patent

The ’007 design patent issued on February 16, 2010 and is directed to a design for a

closure for a container with retaining ring. See ’007 Patent (Ex. I). As can be seen in the

chart below, at least one Accused Product, Technocraft’s 63C-AGL-F 63mm Canseal

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closure, plainly infringes the ’007 patent. The claimed design and Technocraft’s product

are substantially similar from an ordinary observer’s perspective.

’007 Design Patent Drawing Technocraft’s 63C-AGL-F 63mm


Canseal Closure

Rieke has thus shown a likelihood of success on the merits as to the ’007 patent.

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5. Technocraft Offers for Sale the Accused Products in the United States

The United States Patent Act provides relief where anyone “without authority

makes, uses, offers to sell, or sells any patented invention, within the United States or

imports into the United States any patented invention during the term of the patent

therefor, infringes the patent.” 35 U.S.C. § 271.

Technocraft offers for sale, sells, and imports its Accused Products (including its

63C-AGL-F 63mm Canseal Closures) in the United States in violation of 35 U.S.C. § 271.

The infringing closure shown above in Figure 5 from Technocraft’s website has the word

“Firmenich” on it. Firmenich has locations throughout the United States and is one of

Rieke’s customers for the Flexspout II closure. (D. Taylor Decl. ¶ 16.)

Rieke recently learned that Technocraft displayed its Product Data Sheet showing

the infringing closures on its website, https://www.technocraftgroup.com, in January

2019. (Technocraft Product Data Sheet (Ex. D).) The Product Data Sheet is in English (the

official and most commonly spoken language in the United States) and it refers to pallet

sizes in non-metric inches (the U.S. customary unit of measurement). (See id.) According

to its own website, Technocraft has a distribution center located in Fort Wayne, Indiana.

(See Screenshot of Technocraft Website (Ex. J).) Technocraft attends trade shows in the

United States and frequently does business with customers throughout the United States

(including in this District). (D. Taylor Decl. ¶ 18.)

In fact, Technocraft has already taken U.S. business away from Rieke with respect

to other significant products besides the Flexspout II. (Id. ¶ 19.) Taken together, the

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available information and circumstances make it clear that Technocraft has been offering

for sale, importing and selling the Accused Products in the U.S.

Additionally, Rieke has moved for expedited discovery concurrently with this

motion. Rieke seeks information about Technocraft’s secret business activities in the U.S.

with the Accused Products including which customers or suppliers it provided samples,

pricing information, whether it has directly offered for sale the Accused Products or used

distributors, who it has made sales to, sales information for the Accused Products, and

how it has imported the Accused Products into the U.S. The requested information will

further support that Rieke is likely to succeed on the merits of its patent infringement

claim.

C. Rieke Will Suffer Irreparable Harm Without a Preliminary Injunction

Rieke will suffer irreparable harm absent a preliminary injunction. “[T]he

irreparable harm inquiry seeks to measure harms that no damages payment, however

great, could address.” Celsis In Vitro, Inc. v. CellzDirect, Inc., 664 F.3d 922, 930 (Fed. Cir.

2012) (citations omitted). Courts have found that irreparable harm includes “price

erosion, damage to ongoing customer relationships, loss of customer goodwill (e.g., when

an effort is later made to restore the original price), and loss of business opportunities.”

Id.

Price Erosion: Technocraft’s conduct leads to the irreparable harm to Rieke. In

terms of price erosion, Technocraft notoriously undercuts Rieke’s prices to Rieke’s

customers by selling knockoff products. (See, e.g., D. Taylor Decl. ¶¶ 14, 19.) Allowing

Technocraft to offer for sale or sell infringing products at a much lower price point would

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effectively shut Rieke out of being able to sell the very patented product that it has

innovated. Rieke will prove this further based on the expedited discovery showing the

pricing that Technocraft has given to customers.

Loss of Entire Customers: The closures that Rieke and Technocraft sell are a

commercial customer based business. (D. Taylor Decl. ¶ 20.) To meet federal, state or

other laws, commercial customers must test closures to ensure legal compliance. (Id.)

Those commercial customers will purchase only from approved suppliers. (Id.) Also,

commercial customers purchase these closures in large quantities for millions of dollars.

(Id.) In turn, customers then can instruct end users with that one style of closure. (Id.)

Thus, commercial customers typically purchase one type of closure from one supplier and

are resistant to change. See Celsis In Vitro, Inc. v. CellzDirect, Inc., 664 F.3d 922, 930 (Fed.

Cir. 2012) (“Price erosion, loss of goodwill, damage to reputation, and loss of business

opportunities are all valid grounds for finding irreparable harm.” (citing Abbott Labs. v.

Sandoz, Inc., 544 F.3d 1341, 1362 (Fed. Cir. 2008); Sanofi–Synthelabo v. Apotex, Inc., 470

F.3d 1368, 1382–83 (Fed. Cir. 2006))). Without a preliminary injunction, Rieke would lose

entire customers due to Technocraft’s infringement, and it would be very difficult for

Rieke to gain such customers back. (D. Taylor Decl. ¶ 21.)

Loss of Jobs, Market Share and Damage to Rieke’s Reputations: Loss of even a single

customer would have a devastating negative impact on Rieke as a company. Rieke would

lose jobs in Auburn, Indiana where the Flexspout II closure is manufactured. (D. Taylor

Decl. ¶ 22.) Rieke also would lose its market share, and Technocraft’s continued

infringement would damage Rieke’s reputation in the industry. (Id.)

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Technocraft’s Surreptitious Business Activities: Irreparable harm beyond mere

monetary damages is also shown by Technocraft’s surreptitious response to Rieke about is

business activities. Technocraft’s strawman response did not in any way address the

Accused Product that had on its website just a few months ago, who it offered for sale

that product to, or who it sold that product to. (See 6/3/19 Letter from E. Ericksen to D.

Cupar (Ex. F).) Rieke discovered via the Internet Archive that Technocraft was offering

knockoff copies of Rieke’s Flexspout II on Technocraft’s website as recently as January

2019. (See, e.g., D. Taylor Decl. ¶ 15; Technocraft Product Data Sheet (Ex. D).)

Technocraft’s secret dealings and failure to be forthright with Rieke on the facts further

evidences the irreparable harm suffered by Rieke where a preliminary injunction would

be the appropriate remedy.

D. The Balance of Equities Favors a Preliminary Injunction

The third factor to be considered in deciding whether to award a preliminary

injunction is the balance of hardships. This factor requires the court to weigh “the

hardship to the patentee if no injunction is entered against the harm to the alleged

infringer if the injunction is granted incorrectly.” Abbott Labs. v. Sandoz, Inc., 500 F.

Supp. 2d 807, 844 (N.D. Ill. 2007) (citing Hybritech Inc. v. Abbott Labs., 849 F.2d 1446,

1457 (Fed. Cir. 1988)), aff’d, 544 F.3d 1341 (Fed. Cir. 2008). Here, the balance of equities

strongly weighs in favor of a preliminary injunction. If enjoined, the only “harm”

Technocraft would suffer is that it would not be able to sell an infringing product. In

contrast, the harm to Rieke if a preliminary injunction is denied would be irreparable as

set forth above. The potential harm to Rieke’s business if Technocraft is permitted to

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infringe far outweighs any inconvenience to Technocraft in being prohibited from making

and selling infringing copies of Rieke’s Flexspout II closures. Technocraft has many other

products, including legitimate non-infringing products, that it can make and sell during

the pendency of this litigation.

E. A Preliminary Injunction Serves the Public Interest

Courts, including the Federal Circuit, have often found that the public interest

favors the enforcement of patent rights. See, e.g., Sanofi-Synthelabo v. Apotex, Inc., 470

F.3d 1368, 1383 (Fed. Cir. 2006) (“We have long acknowledged the importance of the

patent system in encouraging innovation.”).

Also, if expedited discovery shows that Technocraft’s infringing products are

inferior to Rieke’s products, an injunction will protect consumers from purchasing an

inferior product during the pendency of this case.

Finally, Rieke’s Flexspout II closures are manufactured in Auburn, Indiana. The

loss of any part of Rieke’s Flexspout II business would hurt the local economy and cause

local people to lose their jobs. (D. Taylor Decl. ¶ 22.) So an injunction would serve a

significant public interest.

Conclusion

For the foregoing reasons, the Court should issue a preliminary injunction that

enjoins Technocraft, its officers, agents, servants, employees, and attorneys, and all other

persons in active concert or participation with those persons, from continuing to infringe

upon Rieke’s design and utility patents by making, using, selling, offering for sale, or

importing the Accused Products during the pendency of this action.

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Dated: June 24, 2019


s/ Jeremy J. Grogg
Jeremy J. Grogg
BURT, BLEE, DIXON, SUTTON & BLOOM, LLP
200 East Main Street, Suite 1000
1st Source Banking Center
Fort Wayne, IN 46802
t 260.426.1300 │ f 260.422.2722
JGrogg@burtblee.com

and

David B. Cupar
pro hac vice application forthcoming
Matthew J. Cavanagh
pro hac vice application forthcoming
MCDONALD HOPKINS LLC
600 Superior Avenue, East, Ste. 2100
Cleveland, Ohio 44114
t 216.348.5400 │ f 216.348.5474
dcupar@mcdonaldhopkins.com
mcavanagh@mcdonaldhopkins.com

Counsel for Rieke LLC

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