Complaint by liaoqinmei

VIEWS: 57 PAGES: 33

									Case 1:12-cv-01946-JLK Document 1 Filed 07/26/12 USDC Colorado Page 1 of 33




                       IN THE UNITED STATES DISTRICT COURT
                          FOR THE DISTRICT OF COLORADO

Civil Action No.:

TOG, INC. AND WILD HARVEST, LLC,
on behalf of themselves and all others
similarly situated,

        Plaintiffs,

v.

UNITED STATES POSTAL SERVICE,
INNOVATIONS GROUP, INC., a
Delaware corporation, and OMAR DAJANI,
an individual

        Defendants.



 CLASS ACTION COMPLAINT FOR VIOLATION OF SHERMAN ANTITRUST ACT
                       AND CLAYTON ACT



        Comes now, TOG, Inc. and Wild Harvest, LLC (collectively, “Plaintiffs”) by and through

their counsel, and for their Complaint against Defendants United States Postal Service (“USPS”),

Innovations Group, Inc. (“IGI”) and Omar Dajani (“Dajani”) (collectively, “Defendants”), state

as follows:

        1.      This is an action under the Sherman Act and the Clayton Act, 15 U.S.C. §§ 1, 2,

12, 14, and 15, to recover treble damages, injunctive relief and attorneys’ fees and costs based on

Defendants’ anticompetitive activities, restraints on trade, monopolization or attempts to

monopolize markets, improper tying agreements, and combinations, agreements and conspiracies

to commit such acts.


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       2.      USPS, IGI and Dajani, individually and conspiring together have imposed a tying

arrangement as a condition of operating a CARS Contract Postal Unit. Specifically, Defendants

have imposed a condition that a Contract Postal Unit (“CPU”) utilizing the Contract Access

Retail System (“CARS System”) may only purchase label rolls for use in the CARS System from

IGI. IGI sells its label rolls at substantially higher prices than the price such label rolls could be

purchased in an open, competitive market. Tying the provision and use of the CARS System

(the Tying Product) to the required purchase of IGI CARS Label Rolls (the Tied Product), was

intended to, and did, create a monopoly in the Tied Product market, and has resulted in

substantial restraints of trade in violation of the Sherman Act and Clayton Act.                 The

supracompetitive prices paid for IGI CARS Label Rolls have caused an antitrust injury to all

Class members.

                                             PARTIES

       3.      Plaintiff TOG, Inc. (TOG) is a Texas Corporation, with its principle place of

business in Abilene, Texas. In or about March of 2005, TOG entered into a contract with USPS

to operate a CPU utilizing the RAMM-60 Postage Evidencing Device (“RAMM-60”). The

contract included the provision: “The supplier [TOG] will be responsible for purchasing supplies

for RAMM-60 after the initial supply is exhausted. These supplies will be ordered from the

authorized RAMM-60 supplier. Only authorized supplies may be used in this device.” In 2007,

the RAMM-60 was replaced with the CARS System, and all terms in CPU Contracts referencing

RAMM-60 were modified to replace those references with CARS.                 The authorized CARS

provider is IGI. TOG purchased CARS Label Rolls from IGI for use in the CARS System. The

amount paid for the Label Rolls was supracompetitive; it was greater than TOG would have paid,



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but for the antitrust violations alleged herein. TOG thereby suffered injury in its property, in the

form of overcharges, injury that antitrust laws are intended to prevent and remedy.

       4.      Plaintiff Wild Harvest, LLC (“Wild Harvest”) is a Colorado Limited Liability

Company, with its principle place of business in Arvada, Colorado. In or about November 2008,

Wild Harvest entered into a contract with USPS to operate a CPU utilizing the CARS System.

The contract included the provision: “The supplier [Wild Harvest] will be responsible for

purchasing supplies for CARS after the initial supply is exhausted. Label Rolls must be ordered

from the authorized CARS provider.” The authorized CARS provider is IGI. Wild Harvest

purchased CARS Label Rolls from IGI for use in the CARS System. The amount paid for the

Label Rolls was supracompetitive; it was greater than Wild Harvest would have paid, but for the

antitrust violations alleged herein. Wild Harvest thereby suffered injury in its property, in the

form of overcharges, injury that antitrust laws are intended to prevent and remedy.

       5.      Defendant Innovations Group Inc. is a Delaware corporation, organized and

existing under the laws of the State of Delaware, with its principal place of business at 2750

Prosperity Avenue, Suite 450, Fairfax, VA 22031.

       6.      IGI is a “person” within the definition of the Clayton Act for purposes of antitrust

liability. 15 U.S.C. § 12.

       7.      Defendant United States Postal Service is an independent establishment of the

Executive Branch of the United States Government. 39 U.S.C. § 201.

       8.      USPS is a “person” as defined in subsection (a) of the first section of the Clayton

Act for purposes of the “antitrust laws,” which include the Sherman Act, 15 U.S.C. §§ 1-7, and

the Clayton Act, 15 U.S.C. §§ 12-27, 29, & 52-53. 39 U.S.C.A 409 (e)(1)(B).



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       9.      USPS is not immune under the doctrine of sovereign immunity from suit in

federal court by any person for any violation of federal law, including the antitrust laws of the

United States. 39 U.S.C.A 409 (e)(1).

       10.     Omar Dajani (“Dajani”) is the Chief Executive Officer of IGI, and, upon

information and belief, is a citizen of the State of Virginia.

       11.     Upon information and belief, Dajani has engaged in regular and systematic

contacts in the State of Colorado in connection with providing services to USPS for the CPU

program, which is administered in the State of Colorado. Such contacts include, but are not

limited to, negotiation and contracting with the USPS original Contracting Officer on the IGI

Contract (as defined below), and engaging in weekly telephone conferences with the USPS’s

office in Colorado throughout the implementation phase of the IGI Contract.

       12.     Dajani authorized, ordered or committed the acts constituting, in whole or in part,

the antitrust violations described herein, and is a “person” within the definition of the Clayton

Act for purposes of antitrust liability. 15 U.S.C. § 12.

                                 JURISDICTION AND VENUE

       13.     The United States District Courts have original, but not exclusive, jurisdiction

over all actions brought by or against USPS. 39 U.S.C. § 409(a).

       14.     Jurisdiction is proper in this Court as to USPS pursuant to 39 U.S.C. §§ 409(a)

and 409(e)(1), and 28 U.S.C. § 1339.

       15.     Jurisdiction against all Defendants exists pursuant to Sections 4, 12 and 14 of the

Clayton Act, 15 U.S.C. §§ 15, 22 & 24, and pursuant to 28 U.S.C. § 1331 as an action involving

the laws of the United States.



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       16.     Venue is proper in this Court pursuant to 15 U.S.C. §§ 15 and 22 because

Defendants IGI and USPS transact business in this jurisdiction.            Venue is proper against

Defendant Dajani because he has extensive and ongoing business contacts in the State of

Colorado, and because this dispute arises out of such contacts. Further, venue is proper in this

district because a substantial amount of interstate trade and commerce involved and affected by

the alleged antitrust violation was and is carried out in this district because the CPU program is

operated out of the USPS Colorado district office, many Class members are located in this

district, and one of the named Class representative’s principal place of business is in this district.

                                     BACKGROUND FACTS

       17.     Contract Postal Units are part of USPS’s Alternative Access Channels Program.

At all relevant times, including through the present, a Manager for Contract Postal Access

Channels is and has been Dennis W. Kelley, III (“Kelley”).

       18.     A CPU is a supplier-owned or supplier-leased site operated by the Supplier, under

contract with USPS, to provide postal services to the public at USPS prices. These units provide

full service retail products and services to postal customers. They are housed within a partner

facility and are operated and managed by partner employees.

       19.      CPUs are often conveniently located inside other businesses and offer customers

the ability of being able to purchase stamps or ship packages at USPS prices while patronizing

the partner businesses.

       20.     Retailers that participate in the Contract Postal Unit program are provided USPS

branding rights and signage. A build-out that meets USPS regulations is required. Some

Contract Postal Unit partners are compensated based on performance.



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       21.     Operating a CPU increases foot traffic to the partner business and provides

additional customer convenience.

       22.     The legal rights of CPU Suppliers and those wishing to become CPU Suppliers

are provided within the terms of contracts and solicitations for contracts with the USPS.

       23.     There are the two types of contracts for CPUs: (1) performance-based percentage

payment contracts, and (2) firm-fixed-price contracts.

       24.     Where a performance-based percentage payment contract is entered into, the CPU

is normally a Contract Access Retail System unit. The USPS provides the CARS System to the

CPU for weighing, metering, and calculating postage on mail pieces. Only CPUs under a

performance-based percentage payment contract that do not have Post Office boxes or sell USPS

money orders qualify for a CARS System.

       25.     To become a CARS CPU, a supplier must complete a solicitation package and

execute the contract, which includes the following components, copies of which are attached

hereto at Exhibit 1 (the “CARS CPU Contract”):

               a.    Part 1: Contract Postal Unit Schedule.
               b.    Part 2: Solicitation Provisions.
               c.    Part 3: Contract Clauses.
               d.    Part 4: Attachments.
                      i. Attachment 1: Requirements.
                     ii. Attachment 2: Contract Postal Unit Supplier Business Proposal and
                         Information.
                    iii. Attachment 4: Compensation.
                    iv. Attachment 5: CPU Design and Construction Requirements.

       26.     The USPS is the only entity that may authorize and contract to permit the

operation of a CPU.




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       27.       The USPS district manager’s approval is mandatory on all funding documents

relating to CPUs, as stated in USPS Handbook F-66, General Investment Policies and

Procedures, § 2-6.2, “Contract Postal Units,” which is stated below in its entirety:

      Contract Postal Units are post offices operated by a contractor under the jurisdiction of
      [host] post office, usually in a store or other privately owned and operated place of
      business.

      At the Headquarters level, vice presidents and above have the authority to approve
      funding for contract postal units. They may re-delegate, in writing, portions of this
      authority. At the field level, the vice president, Area Operations, has the authority to
      establish contract units (see Postal Operations Manual (POM), Issue 8, July 1998, section
      123.2).

      This approval may be re-delegated, in writing, to the district manager, but may not be re-
      delegated by the district manager.

       28.       CPUs operate throughout the United States. According to the Contract Postal

Units Contract Oversight Audit Report dated September 30, 2011, there were approximately

4,665 operating nationwide. Upon information and belief, approximately 1,500 of these CPUs

operate under a CARS CPU Contract.

                                Contracts for the Tying Products

       29.       On or about February 28, 2007, Defendants USPS and IGI entered into a contract

for the provision of the CARS System. See Exhibit 2, Base Contract for Provision of Mailing

Systems for Contract Postal Units between IGI and USPS (“the IGI Contract”).

       30.       The purpose of the IGI Contract is to provide the CARS System, leased from IGI

to USPS, for the purpose of providing products and services to CARS CPUs throughout the

United States.




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       31.     The IGI Contract is an “Indefinite Delivery/Indefinite Quantity” contract to

provide the CARS System as described in the Statement of Work (SOW) attached to the IGI

Contract. Exhibit 2, § 1.1.

       32.     The IGI Contract requires provision of multiple products, including at least eight

separate hardware products. One of the hardware components is an Indicia Printer for printing

metered labels for postage.

       33.     The IGI Contract also requires provision of various other products and services to

be delivered by IGI directly to the CPUs and/or indirectly to the CPUs through USPS under the

terms of the IGI Contract.     These include, but are not limited to, Program Management,

Hardware Engineering and Development, Software Engineering and Development, Data

Management Center, Training, Manuals, and Help Desk Services.

       34.     The mailing system described by the IGI Contract, including each of these

component parts, products, and services has come to be known as the CARS System.

       35.     The purpose of the CARS System is to make it very easy for CPU Suppliers’

employees to process USPS postal transactions.

       36.     Under the CARS CPU Contract, the CARS System is provided to the CPU by

USPS. Exhibit 1, Part 4, Attachment 5, Part A (“Responsibilities Schedule”).

       37.     Through the CARS CPU Contract, USPS contracts with CPUs (“CARS CPUs”)

to provide, sell or lease goods, wares, merchandise, machinery, supplies, or other commodities

including, but not limited to, signage, furniture, collection boxes, postage, and the CARS

System. These are, individually and collectively, the “Tying Products.” Exhibit 1.




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             Defendants Exert Monopolistic Economic Power in the Tying Products

       38.      The ability to own and/or operate a CPU is only possible through a contract with

the USPS.

       39.      USPS is the only entity authorized to permit the operation and set the terms of

operation of CPUs, including CARS CPUs.

       40.      USPS is the only entity authorized to provide for use or sale of the items provided

under the terms of the CARS CPU Contract for use or resale at CARS CPUs.

       41.      USPS controls 100% of the CARS CPU market, including all goods, wares,

merchandise, machinery, supplies, or other commodities supplied under the CARS CPU

Contract, as well as 100% of the demand for CARS Systems.

       42.      In order to contract with the USPS to own or operate a CPU, the Supplier must

submit a bid to USPS in the form attached hereto as Exhibit 1, Parts 1 and 2.

       43.      USPS distributes 100% of the CARS Systems in the CARS user market, which it

leases from IGI through the IGI Contract.

       44.      USPS requires all CARS CPUs to utilize the CARS System provided by IGI.

       45.      IGI, through the IGI Contract, produces, leases and supplies 100% of the CARS

Systems in the CARS market to CARS CPUs.

       46.      This included services, maintenance, repair and replacement parts and

components, to CARS CPUs.

       47.      IGI is the exclusive manufacturer and supplier of CARS Systems, including all

hardware and software.

       48.      IGI and USPS, together, provide the CARS System to all CARS CPUs.



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                    CARS Label Rolls – Consumables – The Tied Product

       49.     The IGI Contract requires that the CARS System include an Indicia Printer that

can communicate with the software to obtain data for printing and accounting for the indicia

(postage) printed, and meet other specific functionality requirements including the ability to print

self-adhesive labels in specified sizes. IGI Contract, Exhibit 2, § 3.1.9

       50.     IGI selected the Citizen brand printer, p/n clp521z-c, to meet the Indicia Printer

requirement under the IGI Contract (“CARS Printer”). The CARS Printer is also sold by Pitney

Bowes as product number JM10.

       51.     The CARS Printers are provided as a part of the CARS System directly to CPUs

upon USPS notifying IGI that a new CARS CPU Contract has been entered. Upon such notice

IGI delivers the CARS System to the CPU.

       52.     Under the terms of the IGI Contract, IGI is required to “have the capability” of

providing all consumables required by the CARS System, including the labels used in the Indicia

Printer, which must be capable of performing under certain environmental conditions. IGI

Contract, Exhibit 2, § 3.4.2.

       53.     Under the terms of the IGI Contract, IGI developed label roll consumables that

could be used in the selected Indicia Printer.

       54.     Upon information and belief, IGI’s CARS Label Rolls underwent testing to

ensure that they met certain environmental, adhesive and other requirements set by the USPS

Engineering Department (“USPS Label Roll Specifications”).




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       55.    Once in conformance with the USPS Label Roll Specifications, IGI’s CARS

Label Rolls were approved for use in the CARS System (hereinafter referred to as “CARS Label

Rolls” or the “Tied Product”).

       56.    Since the inception of the IGI Contract, there were, and are, other sellers of label

rolls that can be used in the Pitney Bowes JM10 or Citizen p/n clp521z-c printers. Although

such label rolls have not been tested for compliance with the USPS Label Roll Specifications.

(“Non-Certified Label Rolls”).

       57.    Suppliers of Non-Certified Label Rolls include Modity Inc. and SuperiorMeter

Supplies (“Non-Certified Suppliers”).

       58.    Upon information and belief, the number of such Non-Certified Label Rolls sold

to CARS CPUs from the inception of the IGI contract to July 2011 constituted less than 25% of

the Tied Product market.

                                        Market Definition

       59.    The relevant Tying Product market is the CARS System, distributed to CARS

CPUs throughout the United States.

       60.    The relevant Tied Product market is the CARS Label Roll market, sold to CARS

CPUs throughout the United States.

                                   The Tying Arrangement

       61.    USPS has included the following term in the contracts it enters with each CARS

CPU:

              “The Postal Service will be providing a CARS to the performance-
              based CPU Supplier. This device is a weighing, rating, and metering
              system. CARS will come with training materials and initial supplies.



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              The CPU Supplier will be responsible for the following expenses
              regarding this device:

              (1) The CPU Supplier will pay for all postage loaded into CARS. This
              payment will be made at the time of postage download from an ACH
              debit account. The CPU Supplier is responsible for the prompt
              payment of all invoices. Failure to pay invoices in a timely manner as
              determined by the CARS provider which causes the CARS provider to
              terminate the payment agreement and such termination results in the
              CPU Supplier not being able to provide the mandatory postal products
              and services may result in termination of the CPU contract.

              (2) The supplier will be responsible for purchasing supplies for CARS
              after the initial supply is exhausted. Label Rolls must be ordered from
              the authorized CARS provider. Use of any other provider will void
              the system warranty and the CPU Supplier will be liable for all costs
              incurred to repair CARS.

              A current list of supplies and prices can be obtained from the
              authorized CARS provider as identified in the initial training
              materials. If the CPU contract is terminated, CARS will be returned to
              the Postal Service with any other Postal Issued Equipment as
              instructed by the COR.”

       See Exhibit 1, Part 3 (Contracting Clauses) ¶ 3.9 (emphasis added).

       62.    The “authorized CARS provider” is IGI.

       63.    IGI required that CARS CPUs purchase all CARS Label Rolls only from IGI, or

not deal in the goods of another, as a condition of the IGI Contract to provide the CARS System,

including maintenance, repair and replacement of CARS System components.

       64.    USPS, acting in concert with IGI, agreed with IGI that all CARS CPUs must

purchase CARS Label Rolls only from IGI, or not deal in the goods of another, as a condition of

1) receiving and maintaining a CARS CPU Contract with USPS, and/or 2) receiving the CARS

System, including maintenance, repair and replacement of CARS System components through

the IGI Contract, and/or 3) contracting for all other goods, wares, merchandise, machinery,

supplies, or other commodities supplied by USPS under the CARS CPU Contract.


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  CPUAA Tests and Obtains Approval of its CARS Label Rolls as Meeting or Exceeding
   USPS Label Roll Specifications and Attempts to Enter the CARS Label Roll Market

       65.       The Contract Postal Unit Association of America (“CPUAA”) is a membership

organization providing information and support to CPUs, as well as offering goods and services

to CPUs.

       66.       CPUAA, working with a representative of USPS, obtained the specifications for

CARS Label Rolls, contracted for the design and manufacturing of CARS Labels Rolls, and had

its label rolls tested by USPS’s engineering department to ensure that its label rolls met or

exceeded USPS Label Roll Specifications.

       67.       In July 2011, after completion of the testing and certification process, USPS

issued the following statement in the July 2011 CPUpdate, a publication sent to the area and

district retail specialists responsible for providing day-to-day support for CPUs in their region:

                 “CARS Labels

                 The requirement to print an additional internal tracking label on select
                 products has increased the cost of labels for our CARS CPU partners.
                 In an effort to reduce the impact of this requirement, we have agreed to
                 allow CARS suppliers to purchase labels from any source that has had
                 their labels certified by the postal engineering team as having met or
                 exceeded all postal and Citizen printer requirements.

                 The only authorized suppliers of labels for the CARs system are
                 Innovations Group Inc. (IGI) and Contract Postal Unit Association of
                 America (CPUAA).”

See Exhibit 3.

       68.       Upon information and belief, the CPUpdate is distributed to all USPS district

offices and retail specialists in the United States who ultimately share this information with all

the CARS CPUs in their regions.




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       69.       CPUAA sent marketing flyers, which included a portion of the statement in the

CPUpdate, to Plaintiffs and many Class members offering its label rolls (“CPUAA CARS Label

Rolls”) at substantially lower prices than those charged by IGI.

          IGI and USPS’s Attempts to Retain IGI’s Monopoly in the Tied Market

       70.       After the CPUAA CARS Label Rolls had been approved as meeting or exceeding

USPS Label Roll Specifications, and USPS issued its statement indicating that CPUAA was an

approved CARS Label Roll supplier, IGI commenced a campaign to force or recreate its

monopoly over the CARS Label Rolls (the Tied Product), to enforce the tying arrangement, and

to restrain trade in the Tied Product.

       71.       IGI and/or USPS, issued the following message through the CARS System:

                 Date: 7/15/2011
                 Title: Printer Label Order

                 Urgent Message - Effective Immediately - the only source for
                 approved Label Consumables is the Innovations Group. All
                 orders must be placed with the Innovations Group (IGI) via the
                 Help Desk Line 1-866-334-7145 or the
                 website www.theinnovationsgroup.com

                 Please disregard any solicitation from any other source.

See Exhibit 4.

       72.       This message caused confusion in the market. For example, in early November

2011, Barry Meyer from Columbia, South Carolina contacted his USPS Retail Specialist to

confirm that IGI would honor servicing of the CARS System if he used non-IGI CARS Label

Rolls, because IGI had told him they would not. The Retail Specialist responded that CPUAA

was an authorized CARS Label Rolls supplier.




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       73.      From July through December 15, 2011, USPS did not retract the approval of

CPUAA as an approved suppler of CARS Label Rolls.

       74.      IGI took matters into its own hands to force continuation of the tying arrangement

and threatened that if USPS ended the illegal tying arrangement, then IGI would refuse to

provide the products and services required under the IGI Contract or, in the alternative, would

require an equitable adjustment or higher fees for lease of the CARS System.

       75.      Upon information and belief, USPS revoked CPUAA’s status as an authorized

CARS Label Roll supplier based on the force, threats and intimidation of IGI, under the

instructions, authorization or based on acts of IGI’s officers and directors, including Dajani.

       76.      IGI and/or Dajani instructed IGI help desk employees to refuse to provide service

for the CARS System to any CARS CPU calling the help desk unless they had recently

purchased CARS Label Rolls from IGI.

       77.      IGI and/or Dajani instructed IGI help desk employees to require the immediate

purchase of IGI CARS Label Rolls before providing help, support, repair or replacement

components to any CPU calling for service who had not recently purchased labels from IGI.

       78.      IGI and/or Dajani instructed help desk employees to disparage CPUAA CARS

Label Rolls, and to instruct CPUs that any and all problems that they were having with the

CARS System were caused by use of CPUAA CARS Label Rolls.

       79.      Specific instances of IGI misconduct include:

             a. On or about November 18, 2011, Jane DeCock at the Wild Harvest CPU in

                Arvada, Colorado contacted IGI’s help desk regarding an issue she was having

                with one of her CARS Printers. The first question asked of Ms. DeCock by the



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            IGI employee was concerning the last time she had purchased CARS Label Rolls

            from IGI. The IGI representative informed her that IGI was the only approved

            provider under her contract with USPS. IGI refused to provide service or support

            for the CARS System unless she bought labels from IGI and sent in CPUAA

            CARS Label Rolls for testing.

         b. On or about November 28, 2011, Tiffany Miller, the CPU Manager at Mrs. B.’s

            Consignment in Tustin, California, contacted the IGI help desk due to an issue

            with her postage printer jamming, and requested a new printer. She was asked if

            she was using CPUAA CARS Label Rolls, and she responded in the affirmative.

            She was then told by the IGI help desk technician that the jamming was caused by

            CPUAA labels, that her warranty on her postage printer was not valid, and that

            they would not send her a new postage meter unless she immediately purchased

            four IGI CARS Label Rolls at a price of $60 per roll, plus shipping and handling.

            She complied with this demand due to fear of not being able to operate during the

            very busy holiday season. IGI further demanded that she send in a CPUAA Label

            Roll so IGI could “have it tested.”

         c. On or about November 22, 2011, Stella Derby of the Ryder Mail Depot in Warm

            Mineral Springs, Florida contacted IGI regarding a problem with her printer. She

            was asked which CARS Label Rolls she was using, and she informed the IGI

            representative that she used IGI CARS Label Rolls. She was told that because

            she has not purchased labels rolls from IGI for over 11 months, her warranty was

            void and she would have to replace the printer herself. As a result of IGI’s refusal



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            to provide assistance, her business was closed for days. CPUAA sent a loaner

            printer to her, which worked. Several days later, she received a printer from IGI,

            and began experiencing the same problem again. After again discussing the issue

            with the help desk, the problem was addressed through a software update.

         d. In late November and early December 2011, John Tartz, a CPU owner-operator in

            Castle Rock, Colorado attempted to return CARS Label Rolls previously

            purchased from IGI pursuant to its written return policy.         IGI’s controller

            1) refused to provide a refund; 2) refused to provide a copy of the refund policy;

            3) told him that he was “going after” Mr. Tartz personally and that he would make

            sure that IGI attack would negatively affect Mr. Tartz’s personal credit; 4) stated

            that he would place a lien against Mr. Tartz personally and that he would get

            “every dime out of Mr. Tartz somehow”; 5) stated that Mr. Tartz made a business

            decision not to order IGI’s rolls and that he was going to make his own business

            decision and act on Mr. Tartz’s credit and attach a lien against Mr. Tartz.

            Mr. Tartz was also told that IGI was the only approved supplier of CARS Label

            Rolls and that if Mr. Tartz made the decision to use less expensive rolls, then the

            Pitney Bowes machines Tartz used would not be covered for repairs or

            replacement, and that the costs of repair or replacement were $200 and $900,

            respectively.

         e. On or about December 12, 2011, a newly opened CPU in Texas was having

            problems setting up the CARS Printer. IGI asked who they were buying paper

            from, and they indicated that they only had the original CARS Label Rolls that



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               came with the CARS Printer.            IGI refused to provide service unless they

               immediately purchased four CARS Label Rolls from IGI.

       80.     Upon information and belief, IGI threatened or refused to comply with the

services, repair and replacement requirements of the IGI Contract on numerous other occasions,

thereby refusing to supply all or a portion of the Tying Product, based on CARS CPUs’ failure or

refusal to purchase the Tied Product from IGI.

                    CPUAA Attempts to Mitigate Damages to CPUs and
                  Offer an Alternative to the Required Tying Arrangement

       81.     CPUAA learned that IGI was refusing to provide replacement and repair of the

CARS Printer as required under the IGI Contract.

       82.     CPUAA further learned that IGI was claiming exorbitant fees for repair or

replacement of the CARS Printer, or refusing to provide help desk service or services at all, in

some cases resulting in the closure of CPU locations for days.

       83.     The actual cost of replacement of the CARS Printer is approximately $265 to

$455 dollars, depending on the quantity purchased.

       84.     In or about August and October, 2011, CPUAA, through a Citizen distributor, was

able to locate approximately 40 CARS Printers, which it purchased. CPUAA was able to locate

and began contract negotiations with an authorized repair service for Citizen printers.

       85.     CPUAA’s purpose in purchasing these printers and attempting to engage an

authorized Citizen printer repair service was to alleviate CPUs from being forced into

continuation of the tying arrangement.




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       86.     IGI informed CPUs that the warranty on the CARS Printer was void based on the

provision of USPS’s contract with the CPUs stating that “Use of any other provider [for CARS

Label Rolls] will void the system warranty and the CPU Supplier will be liable for all costs

incurred to repair CARS.” Exhibit 1, Part 3 (Contracting Clauses),¶ 3.9.

       87.     CPUAA was willing to provide repair and replacement services for CARS

Printers under a program whereby it would provide a loaner printer to the CPU, and send the

printer to an authorized Citizen repair service.

       88.     Through this mechanism, CPUs could choose an alternative to the tying

arrangement by paying the actual cost of repair or replacement of the CARS Printer, an option

not prohibited under the terms of the CARS CPU Contract.

       89.     CPUAA never introduced this program to Class members, and was prohibited

from doing so by USPS and/or IGI.

                 IGI and USPS Agree to Strengthen the Tying Arrangement

       90.     CPUAA attempted to work with USPS to reaffirm approval of CPUAA as an

authorized supplier of CARS Label Rolls.

       91.     USPS maintained that Kelley, Manager Contract Postal Access Channels, did not

have the authority to approve CPUAA or any other supplier of CARS Label Rolls for use with

the CARS System.

       92.     CPUAA suggested the warranty program, described above, as an alternative to the

illegal tying arrangement.

       93.     USPS stated that eliminating the tying arrangement, and requiring IGI to provide

the CARS System without implementing the tying arrangement, was a matter within the sole



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authority of the USPS Contracting Officer in charge of the IGI Contract, Charles Hochstein.

USPS stated that “No other person, besides the assigned IGI CO has the requisite legal authority

to bind the Postal Service to spend money concerning contract matters involving the IGI

contract.” Exhibit 5.

       94.     Thus, even though USPS was not directly expending any money to purchase the

Tied Product, which the CARS CPUs were required to purchase directly, USPS’s position is that

eliminating the tying arrangement would cause USPS to spend money under the IGI Contract.

       95.     Upon information and belief, IGI threatened to seek a contract adjustment or

otherwise increase the prices paid by USPS to IGI under the IGI Contract if USPS did not

continue and maintain the tying arrangement between the CARS System and required purchase

of only IGI CARS Labels Rolls.

       96.     USPS is receiving a benefit from the Tied Product through receipt of discount,

rebate or lower prices under the IGI Contract in the Tying Product in return for using its market

power in the CARS CPU market to require that CPUs purchase CARS Labels Rolls only from

IGI.

       97.     Upon information and belief, during the time period from July 2011 through

December 12, 2011, IGI and Dajani took various actions to force USPS to agree to continue,

buttress or reinforce the tying arrangement including but not limited to threats to refuse to (and

actual refusal to) provide services, repair or replacements to CARS CPUs.

       98.     Upon information and belief, as early as December 9, 2011, IGI, with agreement

and consent of USPS, was informing CPUs that: 1) CPUAA CARS Label Rolls were not

officially approved, and 2) USPS would be issuing a statement to that effect soon.



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       99.    Upon information and belief, USPS through Charles Hochstein, Karren Vance,

Karen Mastervich and unknown others, and IGI through Dajani and/or other officers and

directors, agreed that USPS would issue a statement requiring that the tying arrangement

continue.

       100.   This agreement was made in furtherance of an agreement, conspiracy or contract

in restraint of trade, and for the purpose of continuing to monopolize or attempting to

monopolize the CARS Label Rolls market.

       101.   On or about December 12, 2011, Charles Hochstein of USPS issued the following

statement to all CPUs through the CARS System.

              “The Postal Service reviewed the contract under which USPS leases
              the CARS systems from IGI in response to recent inquiries. We have
              concluded that:
                   1. IGI is the only approved CARS label provider.
                   2. IGI is solely responsible for the repair of the CARS printers.

              Effective immediately all CPUs, in accordance with your USPS
              contract, are directed by the Postal Service to purchase all CARS
              labels from IGI and to only return CARS equipment, including
              printers, to IGI for repair.

              The Postal Service and IGI are working to resolve reported CPU concerns and
              complaints relative to the CARS systems.

              Questions concerning this policy should be addressed to your local
              USPS Retail Specialist.”

Exhibit 6.

       102.   Since December 12, 2011, IGI and/or USPS have re-issued this message through

the CARS messaging system on an almost daily basis. See Exhibit 7.

       103.   On or about December 12, 2011, Nicole Reiter-Noll, Retail Manager for the

Colorado and Wyoming District of USPS, sent an email to CARS CPUs, informing them that the



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above message would be sent through the CARS System memo view announcement, and

additionally stating, in relevant part:


                The purpose of this message is to establish USPS policy at this time. The
                CPU’s compliance with this position from this point forward is not
                voluntary. The CPU contract includes the following requirement:

                “The supplier will be responsible for purchasing supplies for CARS
                after the initial supply is exhausted. Label rolls must be ordered from
                USPS authorized CARS label providers. Use of any other providers
                will void the system warranty and the CPU Supplier will be liable for
                all costs incurred to repair the CARS label printer.”

                By contract, the authorized source for CARS labels and equipment
                repair is IGI. Recent Postal Service messaging does not fully reflect
                this fact.

                Our current message does not reflect on any other supplier’s labels or
                repair capabilities. This statement reflects the terms and conditions of
                a competitively awarded contract the Postal Service signed with IGI
                for the CARS system. Therefore, our Postal Retail team should not
                speculate or comment concerning why another supplier’s product is or
                is not approved.

Exhibit 8.

      The Tying Arrangement’s Substantial Market Effects, Restraints on Trade and
                                  Monopolization

        104.    The non-sale price charged by IGI for CARS Label Rolls has ranged from $70 to

$116 per roll since the inception of the IGI Contract, with occasional specials ranging from $55

to $65 per roll (varying with quantity purchased). Exhibit 9.

        105.    IGI charges shipping of $17.35 for 1 to 4 rolls, and $34.70 for shipping 5 to 8

rolls, in addition to delivery confirmation and insurance, for purchase of CARS Label Rolls,

rather than charging only a pass-through for shipping, thereby increasing its profits on each sale.




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       106.       The introductory non-sale price charged by CPUAA for its CARS Label Rolls

that have been certified as meeting or exceeding USPS Label Roll Specifications was $34.95 to

$39.95, depending on purchase of membership and quantity of rolls purchased. Exhibit 10.

       107.       The price charged for known Non-Certified CARS Label Rolls are between

$22.80-$34.00 (Modity, Inc.) and $32.95-$36.95 (SuperiorMeterSupplies), depending on

quantity purchased.

       108.       IGI’s current pricing is in shown in attached Exhibit 11.

                                 CLASS ACTION ALLEGATIONS

       109.       Plaintiffs seek to represent the following Class: All persons or entities within the

United States (excluding federal, state and local government entities, USPS, IGI or their

directors, officers and members of their families) that have a CARS CPU Contract with USPS to

operate a CARS CPU.

       110.       The membership of the Class is so numerous that joinder of all members is

impractical. There are approximately 1,500 or more members who are geographically dispersed

throughout the United States.

       111.       Plaintiffs’ claims are typical of the claims of the members of the Class because

Plaintiffs and all Class members were damaged by the same wrongful conduct of the Defendants

alleged herein.

       112.       There are questions of law and fact common to the Class which predominate over

any question affecting only individual Class members. Such common questions include:

           a. The definition of the relevant product markets;

           b. USPS’s and/or IGI’s market power in the relevant product markets;



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              c. Whether USPS and/or IGI monopolized, continue to monopolize, and/or have

                   attempted to monopolize the relevant product markets;

              d. Whether the contractual conditions of the IGI and/or CARS CPU Contracts,

                   individually and collectively, condition the sale, lease or provision of goods and

                   services on not using or dealing in the goods of another with the effect of

                   substantially limiting competition or restraining trade;

              e.   Whether USPS and IGI’s conduct caused damages to Plaintiffs and members of

                   the Class, including the degree to which prices paid by the Class are higher than

                   the prices that would have been paid in a market free from monopolization,

                   restraints on trade, illegal tying arrangements and other illegal conduct.

        113.       The claims of Plaintiffs are typical of the claims of the Class, and Plaintiffs have

no interests adverse to the interests of other members of the Class.

        114.       Plaintiffs will fairly and adequately protect the interests of the Class and have

retained counsel experienced and competent in prosecution of complex class action and antitrust

litigation.

        115.       A class action is superior to other available methods for the fair and efficient

adjudication of the controversy. Class treatment will permit a large number of similarly situated

persons and entities to prosecute their common claims in a single forum simultaneously,

efficiently, and without duplication of efforts and expense that numerous individuals would

engender.      Class treatment will also permit the adjudication of relatively small claims by

individual Class members who could not afford on their own to individually litigate an antitrust

claim against these large corporate and governmental defendants.



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        116.   There are no difficulties likely to be encountered in the management of this class

action that would preclude its maintenance as a class action, and no superior alternative exists for

the fair and efficient adjudication of the controversy.

                                        COUNT I
              VIOLATION OF THE CLAYTON ACT, 15 U.S.C.A. § 14 – IGI
 (Conditioning Sale or Lease of CARS System on the Condition that the CARS CPUs not
Use or Deal in the Goods of Another with the Effect of Substantially Lessening Competition
                                and Creating a Monopoly)

        117.   Plaintiffs incorporate and re-allege paragraphs 1 to 116 of this Complaint as if

fully set forth herein, on behalf of the Class.

        118.   Defendant IGI has conditioned the sale, lease and provision of the CARS System

to CPUs including repair, replacement and servicing of each of its component parts as required

under the IGI Contract (the “CARS Tying Product”), to the purchase of CARS Label Rolls only

from IGI.

        119.   IGI is the only manufacturer and supplier of the CARS Tying Product, and

together with USPS has 100% economic power in the CARS Tying Product.

        120.   Competitors in the Tied Product are foreclosed, or substantially foreclosed, from

selling CARS Label Rolls in the only market, to CARS CPUs.

        121.   The market for CARS Label Rolls is believed to be 3,000 to 6,000 rolls per

month, all of which is affected by the tying arrangement.

        122.   At the price fixed by IGI of $70 to $75 per roll, affected commerce in the Tied

Product is not insubstantial, and is estimated to range between $2,520,000 to $5,040,000 per

year.




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          123.   The tying arrangement has caused, and will continue to cause, an anti-competitive

effect.

          124.   Plaintiffs and CARS CPUs (the Class members), desire to purchase CARS Label

Rolls from a source other than IGI. The Class members have and are purchasing IGI CARS

Label Rolls because of the coercion by IGI and/or USPS through the tying arrangement.

          125.   As a direct and proximate result of the tying arrangement, Plaintiffs and all Class

members have paid prices for CARS Label Rolls that are and were higher than they otherwise

would have been in a competitive market.

          126.   As a direct and proximate result of the tying arrangement, Plaintiffs and all Class

members suffered damages based on the supracompetitive prices paid for CARS Label Rolls in

violation of the Clayton Act, 15 U.S.C.A. § 14.

                                        COUNT II
              VIOLATIONS OF CLAYTON ACT, 15 U.S.C.A. § 14 – USPS
 (Conditioning Sale or Lease of CARS System and Other Products Necessary to Operate a
 CPU on the Condition that the CARS CPUs not Use or Deal in the Goods of Another with
      the Effect of Substantially Lessening Competition and Creating a Monopoly)

          127.   Plaintiffs incorporate and re-allege paragraphs 1 to 116 of this Complaint as if

fully set forth herein, on behalf of the Class.

          128.   Defendant USPS has conditioned the right to contract to operate a CARS CPU on

use of the CARS System, which it leased from IGI and distributes to CPUs (the “CARS Tying

Product”). USPS has also conditioned the right to sell or lease goods, wares, merchandise,

machinery, supplies, or other commodities including, but not limited to, signage, furniture,

collection boxes, and postage (“Other Tying Products”), (together with the CARS Tying Product

the “USPS Tying Products”), on the purchase of CARS Label Rolls exclusively from IGI.



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          129.   USPS is the only distributor of the USPS Tying Products, and together with IGI

have 100% economic power in the CARS Tying Product, and 100% economic power in the

Other Tying Products.

          130.   USPS has an economic interest in the Tied Product market.

          131.   Competitors in the Tied Product, CARS Label Rolls, are substantially foreclosed

from selling label rolls to the relevant market, to CARS CPUs.

          132.   The market for CARS Label Rolls is believed to be 3,000 to 6,000 rolls per

month, all of which is affected by the tying arrangement.

          133.   At the price fixed by IGI of $70 to $75 per roll, affected commerce in the Tied

Product is not insubstantial, and is estimated to range between $2,520,000 to $5,040,000 per

year.

          134.   The tying arrangement has caused, and will continue to cause, an anti-competitive

effect.

          135.   Plaintiff and CARS CPUs (the Class members) desire to purchase CARS Label

Rolls from a source other than IGI. The Class members have and are purchasing IGI CARS

Label Rolls because of the coercion by IGI and/or USPS through the tying arrangement.

          136.   As a direct and proximate result of the tying arrangement, Plaintiffs and all Class

members have paid prices for CARS Label Rolls that are and were higher than they otherwise

would have been in a competitive market.

          137.   As a direct and proximate result of the tying arrangement, Plaintiffs and all Class

members suffered damages based on the supracompetitive prices paid for CARS Label Rolls in

violation of the Clayton Act, 15 U.S.C.A. § 14.



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                                  COUNT III
   VIOLATION OF THE SHERMAN ACT, 15 U.S.C.A. § 1 – USPS, IGI AND DAJANI
           (Contract, Combination or Conspiracy in Restraint of Trade)

       138.    Plaintiffs incorporate and re-allege paragraphs 1 to 116 of this Complaint as if

fully set forth herein, on behalf of the Class.

       139.    Defendant IGI has conditioned the sale, lease and provision of the CARS Tying

Product to CPUs, including repair, replacement and servicing of each of its component parts as

required under the IGI Contract, to the purchase of CARS Label Rolls (the Tied Product) only

from IGI.

       140.    IGI is the only manufacturer and supplier of the CARS System.

       141.    Defendant USPS has conditioned the right to contract to run a CARS CPU on use

of the CARS Tying Product, which it leased from IGI and distributes to CPUs. It has also

conditioned to sell or lease goods, wares, merchandise, machinery, supplies, or other

commodities including, but not limited to, signage, furniture, collection boxes, and postage (the

Other USPS Tying Products), on the purchase of CARS Label Rolls (the Tied Product)

exclusively from IGI.

       142.    USPS is the only distributor of the USPS Tying Products in the relevant market.

       143.    USPS and IGI together, through contract and in combination, have total market

power in the CARS Tying Product and Other Tying Products in the relevant market, and through

use of that power have restrained free trade in the Tied Product.

       144.    The market for CARS Label Rolls is believed to be 3,000 to 6,000 rolls per

month, all of which is affected by the tying arrangement.




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        145.    At the price fixed by IGI of $70 to $75 per roll, affected commerce in the Tied

Product is not insubstantial, and is estimated to range between $2,520,000 to $5,040,000 per

year.

        146.    The actions taken by IGI, USPS, and Dajani, including but not limited to, the use

of force, threats and intimidation, have caused an unreasonable restraint on trade in the market

for the Tied Product, including but not limited to the Class member’s ability to purchase the Tied

Product at competitive prices and from suppliers of the Tied Product other than IGI.

        147.    The purpose and effect of USPS, IGI and Dajani’s conduct has been a substantial

lessening of competition in the Tied Product market.

        148.    As a direct and proximate result of these contracts, combinations, and

conspiracies in restraint of trade, Plaintiffs and all Class members have paid prices for CARS

Label Rolls that are and were higher than they otherwise would have been in a competitive

market.

        149.    As a direct and proximate result of these contracts, combinations, and

conspiracies in restraint of trade, Plaintiffs and all Class members suffered damages based on the

supracompetitive prices paid for CARS Label Rolls in violation of the Sherman Antitrust Act, 15

U.S.C.A. § 1.

                                   COUNT IV
   VIOLATION OF THE SHERMAN ACT, 15 U.S.C.A. § 2 – IGI, DAJANI AND USPS
    (Monopolization and Attempted Monopolization of the CARS Label Rolls Market)

        150.    Plaintiffs incorporate and re-allege paragraphs 1 to 116 of this Complaint as if

fully set forth herein, on behalf of the Class.




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          151.   Defendants IGI and Dajani, individually and combining or conspiring together

with USPS, had the specific intent to monopolize the CARS Label Roll market, to control the

price of CARS Label Rolls in the market, to set prices for the CARS Label Rolls at an

unreasonably high level (thereby increasing their profits on sales thereof), and to destroy

competition and restrict consumer choice in the CARS Label Rolls market throughout the United

States.

          152.   Defendants IGI and Dajani, individually and combining or conspiring together,

and together with USPS, engaged in predatory or anticompetitive conduct directed at

accomplishing that purpose, including, tying and unreasonable exclusionary agreements.

          153.   Defendants IGI and Dajani have a dangerous probability of achieving monopoly

power, and may have attained monopoly power, in the CARS CPU Label Roll market.

          154.   This conduct has harmed competition in the CARS Label Roll Market, making

the supply and selection of available products lower than it would be in a competitive market and

forcing consumers to pay higher prices than they would have in a competitive market.

          155.   As a result of IGI, Dajani and USPS’s conduct, Plaintiffs and the Class members

have suffered antitrust injury including paying prices for CARS Label Rolls that are and were

higher than they otherwise would have been in a competitive market.

          156.   As a direct and proximate result of these contracts, combinations, and

conspiracies to monopolize or attempt to monopolize, Plaintiffs and all Class members suffered

damages based on the supracompetitive prices paid for CARS Label Rolls in violation of the

Sherman Antitrust Act, 15 U.S.C.A. § 2.




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                                     PRAYER FOR RELEIF

         WHEREFORE, Plaintiffs, on behalf of themselves and the putative Class, pray that the

Court declare, adjudge and decree the following:

         1.     That this action may be maintained as a class action pursuant to Rule 23(b)(3) of

the Federal Rules of Civil Procedure with respect to the claims for damages and other monetary

relief, and declaring Plaintiffs as representatives of the Class and their counsel as counsel for the

Class;

         2.     That this action may be maintained as a class action pursuant to Rule 23(b)(2) of

the Federal Rules of Civil Procedure with respect to the claims for injunctive relief, and

declaring Plaintiffs as representatives of the Class and their counsel as counsel for the Class;

         3.     That Defendants’ actions, conduct and practices are unlawful under Section 1 of

the Sherman Act (15 U.S.C. §1) and Section 3 of the Clayton Act (15 U.S.C. § 14);

         4.     That Defendants’ actions, conduct and practices constitute unlawful

monopolization or attempt to monopolize in violation of Section 2 of the Sherman Act (15

U.S.C. §2);

         5.     Enjoining Defendants, as well as their officers, agents, servants, employees and

attorneys who shall receive actual notice of the Court’s injunction, from continued engagement

in those acts, forms of conduct and practices found to be illegal, as provided by in Section 16 of

the Clayton Act (15 U.S.C. § 26; see also 15 U.S.C. § 4);

         6.     Awarding Plaintiffs and the Class members threefold their actual antitrust

damages sustained as a result of Defendants’ antitrust violations, as provided by Section 4 of the

Clayton Act (15 U.S.C. § 15);



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       7.      Awarding Plaintiffs and the Class members reasonable attorneys’ fees and costs

as provided by Section 4 of the Clayton Act (15 U.S.C. § 15), or otherwise permitted by

applicable law;

       8.      Awarding Plaintiffs and the Class members pre-judgment and post-judgment

interest as permitted by law; and

       9.      Awarding Plaintiffs and the Class members such other, further and different relief

as the nature of the case may require or as may be determined to be just, equitable and proper by

this Court.

                                         JURY DEMAND

       Plaintiffs respectfully demand a trial by jury on all issues so triable.


       Dated this the 26th day of July, 2012.

                                              s/Denise D. Riley
                                              Denise D. Riley
                                              Daniel E. Friesen
                                              Christine Lamb
                                              Stephen DeHoff
                                              Friesen Lamb, LLP
                                              1675 Larimer Street, Suite 675
                                              Denver, Colorado 80202
                                              Phone: 720.904.6000
                                              Fax: 720.904.6006
                                              Email: driley@friesenlamb.com
                                                      dfriesen@friesenlamb.com
                                                      clamb@fiiesenlamb.com
                                                      sdehoff@friesenlamb.com




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Case 1:12-cv-01946-JLK Document 1 Filed 07/26/12 USDC Colorado Page 33 of 33




Plaintiffs’ Addresses:

TOG, Inc.
2626 Barrow Road
Abilene, Texas 79865

Wild Harvest, LLC
14705 West 64th Ave. Unit C
Arvada, Colorado 80004




                                     33

								
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