NASCAR - FINAL answer and counterclaim against Cingular and att.DOC by cometjunkie58

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									   Case 1:07-cv-00623-MHS    Document 123    Filed 06/17/2007   Page 1 of 47




                       UNITED STATES DISTRICT COURT
                       NORTHERN DISTRICT OF GEORGIA
                            ATLANTA DIVISION


AT&T MOBILITY LLC F/K/A
CINGULAR WIRELESS LLC,
                                            Civil Action #1:07-CV-623-MHS
     Plaintiff,

             v.                                JURY TRIAL DEMANDED
NATIONAL ASSOCIATION FOR
STOCK CAR AUTO RACING, INC.,

     Defendant,
             - and -
SPRINT NEXTEL CORPORATION,

     Intervenor.
____________________________________
NATIONAL ASSOCIATION FOR
STOCK CAR AUTO RACING, INC.,

     Counterclaim-Plaintiff,

             v.

AT&T MOBILITY LLC F/K/A
CINGULAR WIRELESS LLC,
     Counterclaim-Defendant,

             - and -
AT&T Inc.,

     Additional Counterclaim
     Defendant,
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            - and -
SPRINT NEXTEL CORPORATION,

     Intervenor.
____________________________________

      DEFENDANT’S ANSWER TO FIRST AMENDED COMPLAINT
                    AND COUNTERCLAIMS
      Defendant, National Association for Stock Car Auto Racing, Inc.

(“NASCAR”) by and through its counsel, Sutherland, Asbill & Brennan LLP and

Milbank, Tweed, Hadley and McCloy LLP, answers Plaintiff’s First Amended

Complaint (the “Complaint”) and asserts its counterclaims as follows:

                               INTRODUCTION
      Plaintiff AT&T Mobility, LLC f/k/a/ Cingular Wireless LLC (“Cingular”)

filed its Complaint and a Motion for Preliminary Injunction in furtherance of a

scheme of “ambush marketing” to force NASCAR to allow Cingular and its parent

company, AT&T Inc. (“AT&T”), to incorporate the marks and logos of AT&T

onto Car #31 driven in NASCAR NEXTEL Cup Series races. Richard Childress

Racing (“RCR”) owns Car #31. On many occasions since 2003, NASCAR

expressly denied RCR and Cingular’s requests to change the marks used on Car

#31 to that of another telecommunication company, including AT&T and its

predecessor entities. In denying these requests, NASCAR exercised its authority

under the NASCAR Rule Book, which gives NASCAR the exclusive right to


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approve or deny paint schemes and designs on cars racing in its events. The

change Cingular seeks through this litigation is prohibited pursuant to NASCAR’s

agreement with the primary sponsor of its Cup Series, Sprint Nextel Corporation

(“Nextel”). The annual Driver and Car Owner Agreement between RCR and

NASCAR also gives NASCAR the discretion to prohibit the requested change.

      Cingular, through its executives, voluntarily became a member of NASCAR

and expressly agreed to be bound by the NASCAR Rule Book and NASCAR’s

determinations made pursuant to the Rule Book. Cingular’s actions, in concert

with AT&T, both in seeking to force AT&T’s brand onto Car #31 despite

NASCAR’s disapproval and in bringing this lawsuit, are tortious and constitute

breaches of contract. These actions have damaged NASCAR.

                       FIRST AFFIRMATIVE DEFENSE

      The Complaint fails to state a claim upon which relief may be granted.

                     SECOND AFFIRMATIVE DEFENSE

      The Complaint is barred, in whole or in part, by the equitable doctrines of

estoppel, and ratification. Cingular brought the Complaint in violation of its

obligations under the NASCAR rule book with the intent of furthering its and

AT&T’s “ambush marketing” strategy.




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                         THIRD AFFIRMATIVE DEFENSE

         Cingular’s claims are barred in whole or in part by the doctrine of laches.

Cingular unreasonably delayed in asserting the subject claims.

                        FOURTH AFFIRMATIVE DEFENSE

         Cingular’s claims are barred in whole or in part by the doctrine of waiver.

Cingular, by its actions and inactions, since 2003, waived the right to pursue any

claim.

                         FIFTH AFFIRMATIVE DEFENSE

         Cingular lacks standing or the capacity to assert the subject action as an

alleged third party beneficiary to NASCAR’s Agreements with RCR and Nextel.

                         SIXTH AFFIRMATIVE DEFENSE

         Cingular is barred from recovery because it knowingly assumed the risks of

its decisions, including its decision to use the name and marks of its parent

corporation and to intentionally delay filing suit.

                       SEVENTH AFFIRMATIVE DEFENSE

         The Complaint, and all causes of action contained therein, are barred, in

whole or in part, by Cingular’s failure to mitigate damages. Any damages suffered

by Cingular were caused by Cingular.




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                       EIGHTH AFFIRMATIVE DEFENSE

      The damages claimed in the Complaint are speculative and conjectural. The

damages alleged were not the foreseeable or natural result of NASCAR’s alleged

conduct.

                       NINTH AFFIRMATIVE DEFENSE

      Cingular’s claims are barred in whole or in part because at all times

NASCAR acted in good faith and without intent to deceive.

                       TENTH AFFIRMATIVE DEFENSE

      Cingular’s claims are barred in whole or in part because NASCAR owed no

duty to Cingular.

                    ELEVENTH AFFIRMATIVE DEFENSE

      Cingular’s claims are barred in whole or in part because Cingular did not

justifiably rely on any alleged promise or representation of NASCAR.

                    TWELFTH AFFIRMATIVE DEFENSE

      Cingular’s claims are barred because Cingular is bound by the NASCAR

Rule Book, which allows NASCAR to approve or deny paint schemes in its sole

discretion and includes a covenant not to sue. The provisions of the NASCAR

Rule Book are more fully described in NASCAR’s Counterclaim, which is

incorporated herein.




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                  THIRTEENTH AFFIRMATIVE DEFENSE

      Cingular’s claims for preliminary injunctive relief are barred because of

Cingular’s failure to post a bond in support of that claim.

                  FOURTEENTH AFFIRMATIVE DEFENSE

      The Complaint, and all causes of action contained therein, are barred, in

whole or in part, by the doctrine of unclean hands. Cingular breached its contract

with NASCAR, and caused RCR to breach its contract with Cingular, of which

NASCAR was an intended third party beneficiary, as described more fully in

NASCAR’s Counterclaim, which is incorporated herein.

      NASCAR reserves the right to assert any additional affirmative defenses and

matters in avoidance as may be disclosed during the course of further investigation

and discovery

      NASCAR responds as follows to the individually-numbered paragraphs of

the Complaint:

      1.     Defendant denies the allegations contained in paragraph 1 of the

Complaint.

      2.     Defendant admits, on information and belief, that stock-car racing is a

large and growing sport in the United States and that NASCAR races are the

sport’s most popular. Defendant denies knowledge or information sufficient to




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form a belief as to the truth of the allegations concerning the amount of Plaintiff’s

alleged investments and the percentage of Plaintiff’s customer base that are

NASCAR fans, and denies the remaining allegations in paragraph 2 of the

Complaint.

      3.     Defendant denies knowledge or information sufficient to form a belief

as to the truth of the allegations concerning the corporate transaction involving

Plaintiff, and denies the remaining allegations in paragraph 3 of the Complaint.

      4.     Defendant admits that Nextel is the sponsor of the NASCAR Cup

Series, a high profile series, and was granted exclusivity in the area of

telecommunications. Defendant denies the remaining allegations in paragraph 4 of

the Complaint.

      5.     Defendant denies the allegations contained in paragraph 5 of the

Complaint.

      6.     Defendant denies the allegations contained in paragraph 6 of the

Complaint.

      7.     Defendant denies the allegations contained in paragraph 7 of the

Complaint.

      8.     Defendant denies knowledge or information sufficient to form a belief

as to the truth of the allegations concerning Plaintiff’s efforts to transition its




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brand, and denies the remaining allegations contained in paragraph 8 of the

Complaint.

      9.     Defendant denies the allegations contained in paragraph 9 of the

Complaint.

      10.    Defendant denies knowledge or information sufficient to form a belief

as to the truth of the allegations contained in paragraph 10 of the Complaint.

      11.    Defendant avers that the allegations concerning personal jurisdiction

purport to state conclusions of law to which no response is required. Defendant

admits the remaining allegations contained in paragraph 11 of the Complaint.

      12.    Defendant avers that the allegations in paragraph 12 of the Complaint

purport to state conclusions of law to which no response is required.

      13.    Defendant avers that the allegations in paragraph 13 of the Complaint

purport to state conclusions of law to which no response is required.

      14.    Defendant denies knowledge or information sufficient to form a belief

as to the truth of the allegations contained in paragraph 14 of the Complaint.

      15.    Defendant admits, on information and belief, that RCR owns Car #31

driven by Jeff Burton in NASCAR races, refers to Cingular’s Sponsorship

Agreement with RCR (the “RCR-Cingular Agreement”) for a complete and

accurate statement of its contents, and denies the remaining allegations contained




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in paragraph 15 of the Complaint.

      16.    Defendant refers to the RCR-Cingular Agreement for a complete and

accurate statement of its contents, and denies the remaining allegations contained

in paragraph 16 of the Complaint.

      17.    Defendant denies knowledge or information sufficient to form a belief

as to the truth of the allegations contained in paragraph 17 of the Complaint.

      18.    Defendant admits that the R.J. Reynolds Tobacco Company was the

sponsor of the NASCAR Cup Series, previously known as the Winston Cup Series.

Defendant denies knowledge or information sufficient to form a belief as to the

truth of the remaining allegations contained in paragraph 18 of the Complaint.

      19.    Defendant admits that Nextel Communications, Inc., a nationwide

wireless carrier that has since merged with Sprint Corporation to become Sprint

Nextel, succeeded R. J. Reynolds Tobacco Company preceded as the sponsor of

the NASCAR Cup Series and that, in connection with this change, the Winston

Cup Series was renamed the NASCAR NEXTEL Cup Series. Defendant denies

the remaining allegations contained in paragraph 19 of the Complaint.

      20.    Defendant denies knowledge or information sufficient to form a belief

as to the truth of the allegations contained in paragraph 20 of the Complaint.

      21.    Defendant admits that it met with Cingular in June 2003 and denies




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the remaining allegations contained in paragraph 21 of the Complaint.

      22.    Defendant denies the allegations contained in paragraph 22 of the

Complaint.

      23.    Defendant refers to the Sponsorship Agreement between NASCAR

and Nextel (the “Nextel Sponsorship Agreement”) for a complete and accurate

statement of its contents, and denies the remaining allegations contained in

paragraph 23 of the Complaint.

      24.    Defendant admits that it entered into annual Driver and Car Owner

Agreements, refers to those agreements for a complete and accurate statement of

their contents, and denies the remaining allegations contained in paragraph 24 of

the Complaint.

      25.    Defendant refers to the Nextel Sponsorship Agreement and the RCR-

Cingular Agreement for a complete and accurate statement of their contents, and

denies the remaining allegations contained in paragraph 25 of the Complaint.

      26.    Defendant refers to the Addendum to the 2004 Driver and Car Owner

Agreement for a complete and accurate statement of its contents, and denies the

remaining allegations contained in paragraph 26 of the Complaint.

      27.    Defendant refers to the Addenda to the 2005, 2006 and 2007 Driver

and Car Owner Agreements for a complete and accurate statement of their




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contents, and denies the remaining allegations contained in paragraph 27 of the

Complaint.

      28.    Defendant denies the allegations contained in paragraph 28 of the

Complaint.

      29.    Defendant denies the allegations contained in paragraph 29 of the

Complaint.

      30.    Defendant denies the allegations contained in paragraph 30 of the

Complaint.

      31.    Defendant denies knowledge or information sufficient to form a belief

as to the truth of the allegations contained in paragraph 31 of the Complaint.

      32.    Paragraph 32 purports to state legal conclusions as to which no

response is required. To the extent a response is required, Defendant denies

knowledge or information sufficient to form a belief as to the truth of the

allegations contained in paragraph 32 of the Complaint.

      33.    Defendant denies knowledge or information sufficient to form a belief

as to the truth of the allegations contained in paragraph 33 of the Complaint.

      34.    Defendant admits that Cingular submitted to NASCAR a proposal to

change the paint scheme and color on the #31 Car to add the mark and logo of its

parent company, AT&T, a proposal that NASCAR denied. Defendant denies the




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remaining allegations contained in paragraph 34 of the Complaint.

      35.    Defendant denies the allegations contained in paragraph 35 of the

Complaint.

      36.    Defendant denies the allegations contained in paragraph 36 of the

Complaint.

      37.    Defendant denies the allegations contained in paragraph 37 of the

Complaint.

                            ANSWER TO COUNT I
      38.    Defendant incorporates by reference its responses to paragraphs 1

through 37 of the Complaint.

      39.    Defendant refers to O.C.G.A. § 13-3-44(a) for a complete and

accurate statement of its contents and denies the remaining allegations contained in

paragraph 39 of the Complaint.

      40.    Defendant denies the allegations contained in paragraph 40 of the

Complaint.

      41.    Defendant denies the allegations contained in paragraph 41 of the

Complaint.

      42.    Defendant denies the allegations contained in paragraph 42 of the

Complaint.

      43.    Defendant denies the allegations contained in paragraph 43 of the


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Complaint.

      44.    Defendant denies the allegations contained in paragraph 44 of the

Complaint.

      45.    Defendant denies the allegations contained in paragraph 45 of the

Complaint.

      46.    Defendant denies the allegations contained in paragraph 46 of the

Complaint.

      47.    Defendant denies the allegations contained in paragraph 47 of the

Complaint.

      48.    Defendant denies the allegations contained in paragraph 48 of the

Complaint.

      49.    Defendant denies the allegations contained in paragraph 49 of the

Complaint.

                            ANSWER TO COUNT II
      50.    Defendant incorporates by reference its responses to paragraphs 1

through 49 of the Complaint.

      51.    Defendant denies the allegations contained in paragraph 51 of the

Complaint.

      52.    Defendant denies the allegations contained in paragraph 52 of the

Complaint.


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      53.    Defendant denies the allegations contained in paragraph 53 of the

Complaint.

      54.    Defendant denies the allegations contained in paragraph 54 of the

Complaint.

      55.    Defendant denies the allegations contained in paragraph 55 of the

Complaint.

      56.    Defendant denies the allegations contained in paragraph 56 of the

Complaint.

                           ANSWER TO COUNT III
      57.    Defendant incorporates by reference its responses to paragraphs 1

through 56 of the Complaint.

      58.    Paragraph 58 of the Complaint purports to state a legal conclusion to

which no response is required.

      59.    Defendant denies the allegations contained in paragraph 59 of the

Complaint.

      60.    Defendant denies the allegations contained in paragraph 60 of the

Complaint.

      61.    Defendant denies the allegations contained in paragraph 61 of the

Complaint.

      62.    Defendant denies the allegations contained in paragraph 62 of the


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Complaint.

      63.    Defendant denies the allegations contained in paragraph 63 of the

Complaint.

      64.    Defendant denies the allegations contained in paragraph 64 of the

Complaint.

      65.    Defendant denies the allegations contained in paragraph 65 of the

Complaint.

      66.    Defendant refers to the Sponsorship Agreement between Plaintiff and

RCR for a complete and accurate statement of its contents and denies the

remaining allegations contained in paragraph 66 of the Complaint.

      67.    Defendant denies the allegations contained in paragraph 67 of the

Complaint.

      68.    Defendant denies the allegations contained in paragraph 68 of the

Complaint.

      69.    Defendant denies the allegations contained in paragraph 69 of the

Complaint.

      70.    Defendant denies the allegations contained in paragraph 70 of the

Complaint.

      71.    Defendant denies the allegations contained in paragraph 71 of the




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Complaint.

                           ANSWER TO COUNT IV
      72.    Defendant incorporates by reference its responses to paragraphs 1

through 71 of the Complaint.

      73.    Paragraph 73 of the Complaint purports to state a legal conclusion to

which no response is required.

      74.    Paragraph 74 of the Complaint purports to state a legal conclusion to

which no response is required.

      75.    Paragraph 75 of the Complaint purports to state a legal conclusion to

which no response is required.

      76.    Paragraph 76 of the Complaint purports to state a legal conclusion to

which no response is required.

      77.    Defendant denies the allegations contained in paragraph 77 of the

Complaint.

      78.    Defendant denies the allegations contained in paragraph 78 of the

Complaint.

      79.    Defendant denies the allegations contained in paragraph 79 of the

Complaint.

      80.    Defendant denies the allegations contained in paragraph 80 of the

Complaint.


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      81.    Defendant denies the allegations contained in paragraph 81 of the

Complaint.

      82.    Defendant denies the allegations contained in paragraph 82 of the

Complaint.

      83.    Defendant denies the allegations contained in paragraph 83 of the

Complaint.

                            ANSWER TO COUNT V
      84.    Defendant incorporates by reference its responses to paragraphs 1

through 83 of the Complaint.

      85.    Paragraph 85 of the Complaint purports to state a legal conclusion to

which no response is required.

      86.    Defendant denies the allegations contained in paragraph 86 of the

Complaint.

      87.    Defendant denies the allegations contained in paragraph 87 of the

Complaint.

      88.    Defendant denies the allegations contained in paragraph 88 of the

Complaint.

      89.    Defendant denies the allegations contained in paragraph 89 of the

Complaint.

      90.    Defendant denies the allegations contained in paragraph 90 of the


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Complaint.

      91.    Defendant denies the allegations contained in paragraph 91 of the

Complaint.

      92.    Defendant denies the allegations contained in paragraph 92 of the

Complaint.

      93.    Defendant denies the allegations contained in paragraph 93 of the

Complaint.

      94.    Defendant denies the allegations contained in paragraph 94 of the

Complaint.

      95.    Defendant denies the allegations contained in paragraph 95 of the

Complaint.

      96.    Defendant denies the allegations contained in paragraph 96 of the

Complaint.

      97.    Defendant denies the allegations contained in paragraph 97 of the

Complaint.

      98.    Defendant denies the allegations contained in paragraph 98 of the

Complaint.

                           ANSWER TO COUNT VI
      99.    Defendant incorporates by reference its responses to paragraphs 1

through 98 of the Complaint.


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      100. Paragraph 100 of the Complaint purports to state a legal conclusion to

which no response is required.

      101. Paragraph 101 of the Complaint purports to state a legal conclusion to

which no response is required.

      102. Paragraph 102 of the Complaint purports to state a legal conclusion to

which no response is required.

      103. Paragraph 103 of the Complaint purports to state a legal conclusion to

which no response is required.

      104. Defendant denies the allegations contained in paragraph 104 of the

Complaint.

      105. Defendant denies the allegations contained in paragraph 105 of the

Complaint.

      106. Defendant denies the allegations contained in paragraph 106 of the

Complaint.

      107. Defendant denies the allegations contained in paragraph 107 of the

Complaint.

      108. Defendant denies the allegations contained in paragraph 108 of the

Complaint.

      109. Defendant denies the allegations contained in paragraph 109 of the




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Complaint.

                          ANSWER TO COUNT VII
      110. Defendant incorporates by reference its responses to paragraphs 1

through 109 of the Complaint.

      111. Paragraph 111 of the Complaint purports to state a legal conclusion to

which no response is required.

      112. Paragraph 112 of the Complaint purports to state a legal conclusion to

which no response is required.

      113. Paragraph 113 of the Complaint purports to state a legal conclusion to

which no response is required.

      114. Paragraph 114 of the Complaint purports to state a legal conclusion to

which no response is required.

      115. Paragraph 115 of the Complaint purports to state a legal conclusion to

which no response is required.

      116. Defendant denies the allegations contained in paragraph 116 of the

Complaint.

      117. Defendant denies the allegations contained in paragraph 117 of the

Complaint.

                                GENERAL DENIAL
      Defendant denies each and every allegation not specifically admitted herein.


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      WHEREFORE, Defendant respectfully requests that this Court dismiss, with

prejudice, the claims alleged against it or that judgment be entered in favor of

Defendant, with costs and attorneys’ fees assessed against Plaintiff.

                                 COUNTERCLAIM
      Defendant NASCAR asserts the following counterclaims against Cingular

and AT&T:

                         JURISDICTION AND VENUE
      1.     This is an action for damages sounding in breach of contract and tort.

      2.     NASCAR is a corporation organized under the laws of the State of

Florida with its principal place of business in Daytona Beach, Florida.

      3.     Cingular is a limited liability company organized under the laws of

the State of Delaware with its principal place of business in Atlanta, Georgia.

      4.     AT&T is a corporation organized under the laws of the State of

Delaware with its principal place of business in San Antonio, Texas. AT&T does

business within the State of Georgia.

      5.     This Court has subject matter jurisdiction over this action pursuant to

28 U.S.C. § 1332. This action is between citizens of different States, and the

amount in controversy exceeds the sum of $75,000, exclusive of interest and costs.

Venue is proper in this Court.




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                                       FACTS
      6.     NASCAR is a major sanctioning body of stock car racing. Each year,

NASCAR holds 17 of the top 20 attended sporting events in the United States and

has approximately 75 million fans.

      7.     NASCAR’s highest profile and most visible racing series was known,

from 1972 through 2003, as the Winston Cup Series and was sponsored by the R.

J. Reynolds Tobacco Company. In June 2003, NASCAR announced that,

beginning with the 2004 season, Nextel would become the Official Series Sponsor.

The series is now known as the NASCAR NEXTEL Cup Series.

      8.     NASCAR is a sponsorship driven sport. Literally hundreds of

sponsors participate in every NASCAR race through agreements between and

among sponsors and car owners, the race tracks at which events are held, and

NASCAR itself.

      9.     NASCAR has exclusive series sponsorship agreements with only

three companies: Nextel; Goodyear Tire & Rubber Company; and Sunoco, Inc.

NASCAR granted each of these companies exclusive advertising rights in different

“categories” in return for substantial contributions to the sport.

      10.    These exclusive advertising agreements benefit all participants in and

fans of the sport. Sunoco provides all NASCAR participants with racing fuel.

Goodyear develops and provides all NASCAR participants with innovative, state-


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of-the-art racing tires. Nextel provides the prize money for the NASCAR

NEXTEL Cup Series races and advertising funds to the tracks. This year alone,

Nextel is making available over $31 million in money to all NASCAR NEXTEL

Cup Series participants.

                             The NASCAR Rule Book
      11.    As with all sports leagues, NASCAR has a Rule Book. The NASCAR

Rule Book governs participation in the NASCAR NEXTEL Cup Series.

      12.    Beginning in 2001 through the present year, officers and employees of

Cingular applied for and received NASCAR membership sponsor licenses on

behalf of Cingular. Cingular executives who filed these applications include Daryl

Evans, Marc Lefar, David Garver, John Burbank, Timothy McGee and former

Cingular employee Rhonda Stell.

      13.    As confirmed on their NASCAR Membership Applications, their

eligibility for NASCAR membership derives exclusively from Cingular’s status as

the primary sponsor of Car #31.

      14.    On their NASCAR membership applications, each Cingular officer

and employee identified Cingular as their employer and listed a Cingular e-mail

address and office address for their contact.

      15.    Importantly, as part of their signed applications, each represented,

among other things:


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            NASCAR RULE BOOK. I am familiar with the current
            NASCAR Rule Book, and I agree to abide by such rules
            as they may be amended from time to time.

      16.   Pursuant to Rule 2-9 of the NASCAR Rule Book, Cingular as a

sponsor of Car #31, is required to be a NASCAR Member and agrees to be bound

by the NASCAR Rule Book directly through these Cingular executives.

      17.   Cingular is currently a member of NASCAR.

      18.   RCR (the company that owns Car #31) is also a NASCAR member

and is bound by the NASCAR Rule Book.

      19.   The NASCAR Rule Book gives NASCAR the exclusive authority and

discretion to approve or deny the paint scheme and placement of decals on all cars

running in NASCAR-sanctioned races.

      20.   NASCAR Rule 20-3.11(B) states in relevant part:

            B. Decals/Advertising.

            (1) NASCAR may refuse to permit, or it may restrict or
                assign the size or placement of decals, identification,
                and advertising of any kind on a car for any reason.
                All NASCAR Members agree to accept NASCAR’s
                decision in this regard.
            (2) NASCAR may refuse to permit a Competitor to
                participate in an Event if NASCAR determines that
                any advertising sponsorship or similar agreement to
                which the Competitor . . . is or will be a party, is
                detrimental to the sport, to NASCAR, or to the
                Promoter for any reason, including without limitation,
                the public image of the sport.
            (3) Decals, advertising slogans, paint schemes and other


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                 graphic designs and text on the car that have not been
                 previously approved by NASCAR must not be used
                 unless and until they have been submitted by the crew
                 chief to NASCAR Headquarters and approved by
                 NASCAR prior to the Event.

        21.   Rule 20-3.11(B) thus subjects all advertising on race cars to

NASCAR’s review and approval prior to its display in a NASCAR-sanctioned

race.

        22.   NASCAR retains the right to refuse to permit advertising for any

reason. NASCAR has retained the broadest possible discretion in conducting its

review to ensure that advertising on race cars complies with the requirements of

the three exclusive Series Sponsors, is tasteful, and does not compromise driver

safety on the track, among other reasons.

        23.   This broad discretion is necessary because it is not possible for

NASCAR to predict what advertising might be proposed for a car.

        24.   In addition, NASCAR Rule 1-4 provides in pertinent part:

              Interpretation And Application. If there is a
              disagreement or dispute regarding the meaning or
              application of the NASCAR Rules, the interpretation and
              application by the NASCAR Officials at the Event shall
              prevail . . . .

        25.   Finally, NASCAR Rule 1-5 provides in relevant part (emphasis in

original):




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            Finality of Interpretation and Application. The
            interpretation and application of the NASCAR Rules by
            the NASCAR Officials at the Event (or by a NASCAR
            Supervisory Official when conducting a review provided
            by sub-section 1-4) shall be final and non-appealable . . .
            . In order to promote stock car racing, to achieve prompt
            finality in competition results, and in consideration of
            receiving the numerous benefits available to them, ALL
            MEMBERS . . . EXPRESSLY AGREE THAT
            DETERMINATIONS BY NASCAR OFFICIALS . . . AS
            TO THE APPLICATION AND INTERPRETATION OF
            THE NASCAR RULES ARE NON-LITIGABLE, AND
            THEY COVENANT THAT THEY WILL NOT
            INITIATE OR MAINTAIN LITIGATION OF ANY
            KIND AGAINST NASCAR OR ANYONE ACTING
            ON BEHALF OF NASCAR, TO REVERSE OR
            MODIFY SUCH DETERMINATIONS OR TO
            RECOVER DAMAGES OR TO SEEK ANY OTHER
            KIND OF RELIEF AS A RESULT OF SUCH
            DETERMINATIONS, UNLESS THE NASCAR
            OFFICIALS OR SUPERVISORY OFFICIALS MADE
            SUCH DETERMINATIONS FOR NO PURPOSE
            OTHER THAN A BAD FAITH INTENT TO HARM
            OR CAUSE ECONOMIC LOSS TO THE MEMBER . .
            . . IF A MEMBER . . . INITIATES OR MAINTAINS
            LITIGATION IN VIOLATION OF THIS COVENANT,
            THAT MEMBER . . . AGREES TO REIMBURSE
            NASCAR FOR THE COST OF SUCH LITIGATION,
            INCLUDING ATTORNEYS’ FEES . . . .
                      The Nextel Sponsorship Agreement
      26.   On June 17, 2003, NASCAR and Nextel entered into an agreement

providing that Nextel would become the Official Series Sponsor starting with the

2004 race season (the “Nextel Sponsorship Agreement”).

      27.   Pursuant to that Agreement, Nextel became the exclusive

telecommunications company permitted to promote its brand at NASCAR

NEXTEL Cup Series races.

      28.   Nextel’s purchase of exclusive series sponsorship rights involved an



                                        26
   Case 1:07-cv-00623-MHS      Document 123     Filed 06/17/2007   Page 27 of 47




unprecedented financial commitment to NASCAR and the drivers and owners that

compete in NASCAR-sanctioned races: Nextel agreed to a 10-year sponsorship at

a publicly reported price of $700 million.

      29.    To implement Nextel’s exclusivity, the Nextel Sponsorship

Agreement contained two important provisions: a “Category” definition and a list

of “Competitors.”

      30.    The Nextel Sponsorship Agreement provides that Nextel will receive

exclusive series sponsorship rights in its Category and that Competitors will be

prohibited from sponsorships of cars, tracks, teams, or NASCAR.

      31.    The Nextel Sponsorship Agreement defines “Competitor” to include,

among others, AT&T, AT&T Corp., AT&T Wireless, SBC Communications,

BellSouth and Cingular.

      32.    The Nextel Sponsorship Agreement expressly bars those Competitors

of Nextel from any advertising and sponsorships in connection with NASCAR

NEXTEL Cup Series events.

      33.    However, during negotiation of the Nextel Sponsorship Agreement,

NASCAR and Nextel recognized that certain racing teams has sponsorship

agreement with Competitors. This race teams included RCR, sponsored by

Cingular, and the Penske team, sponsored by Alltel.




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   Case 1:07-cv-00623-MHS        Document 123     Filed 06/17/2007    Page 28 of 47




        34.   To protect those teams against the potential immediate financial costs

of the loss of such sponsorships, NASCAR asked for, and incorporated into, the

Nextel Sponsorship Agreement narrow exceptions to Nextel’s exclusivity for those

few racing teams that had pre-existing relationships with sponsors in the

telecommunications industry, thereby allowing two car owners to keep the

Cingular brand and the Alltel brand on their cars.

        35.   NASCAR requested and Nextel granted these exceptions solely for

the benefit of the car owners—not the Competitors of Nextel sponsoring those

cars.

        36.   These grandfathering provisions are narrow and limited, preserving

only the status quo with respect to existing sponsorships and the specific brands

displayed pursuant to those sponsorships.

        37.   NASCAR agreed in the Nextel Sponsorship Agreement to take all

legally permissible steps to protect Nextel’s exclusivity and prevent the expansion

of any rights by a Competitor.

        38.   The first section of the grandfathering provisions, Section 1(g)(i) of

Appendix A of the Nextel Sponsorship Agreement (“Appendix A” or “App. A”),

entitled “Exclusivity,” provides:

              “NASCAR agrees that [Nextel] shall have Category
              exclusivity with regards to the Series and Series Events


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   Case 1:07-cv-00623-MHS      Document 123      Filed 06/17/2007   Page 29 of 47




             throughout the Term of this Agreement. Except as
             otherwise expressly provided, NASCAR agrees to take
             any and all legally permissible actions required to ensure
             [Nextel] such exclusivity.”

      39.    Between January and May 2005, NASCAR and Nextel discussed

amending the Nextel Sponsorship Agreement to add to the list of

telecommunications companies deemed to conflict with Nextel (the “Conflict

List”).

      40.    During the course of the negotiations over the amendments to the

Conflict List, Nextel, because of its concern that Verizon might acquire Alltel,

asked, and NASCAR agreed, to formally reaffirm what was apparent in the

original Nextel Sponsorship Agreement (and, as described below, made explicit to

RCR and Cingular shortly after the announcement of that agreement).

      41.    Among other things, this Amendment, dated June 16, 2006 and

effective April 4, 2005, expressly prohibits NASCAR from allowing Cingular (or

Alltel) to “activate” its sponsorship under the brand of a prohibited Competitor

(e.g., AT&T).

                    THE RCR-CINGULAR AGREEMENT
      42.    On October 27, 2004, Cingular executed a purported renewal of a pre-

existing sponsorship agreement with RCR (the “RCR-Cingular Agreement”) for a

term ending on December 31, 2007.



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      43.     The RCR-Cingular Agreement contains strict branding limitations. It

does not permit Cingular to place the marks of another telecommunications

company on Car #31.

      44.     Under the RCR-Cingular Agreement, “RCR shall place the

CINGULAR marks as specified by CINGULAR in accordance with its status as

Primary Sponsor.”

      45.     “Cingular Marks” are defined in the agreement as “CINGULAR

logos, trade names, trademarks, [and] service marks.”

      46.     Cingular executive Daryl Evans testified that “Cingular Marks” under

the agreement, when executed, included only “the Cingular logo, Jack logo, the

Cingular word, . . . [and] colors.”

      47.     Upon information and belief based upon testimony in this lawsuit, the

RCR-Cingular Agreement has not been amended to provide for the display of the

AT&T marks.

      48.     Cingular does not own the AT&T marks that Cingular seeks to place

on Car #31.

      49.     The only portion of the RCR-Cingular Agreement that permits

Cingular to place a different brand on Car #31 is Section 3.a, which provides

Cingular with limited “pass-through” sponsorship rights. But those rights are




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limited to Cingular’s “hardware manufacturers” (e.g., Nokia) and are contingent on

“the prior written approval of RCR.”

      50.   On information and belief, there is no written approval from RCR

given to Cingular that permits Cingular to display any brand on Car #31 other than

the Cingular Marks.

      51.   There are no pass-through rights for Cingular’s corporate affiliates

contained in the RCR-Cingular Agreement.

      52.   Accordingly, the AT&T marks placed on Car #31 on May 19, 2007

and thereafter are not “Cingular Marks” under the RCR-Cingular Agreement.

      53.   The RCR-Cingular Agreement further binds RCR to abide by the

NASCAR Rule Book.

      54.   Under the section titled “Representations, Warranties and Covenants

of RCR,” the RCR-Cingular Agreement states that:

            RCR’s operations and activities shall comply with
            applicable federal, state, and local laws and the
            rules and regulations of NASCAR

RCR-Cingular Agreement, section 18.d.

      55.   This provision, thus, further demonstrates that Cingular was aware of

the fact that NASCAR maintained a system of rules and regulations and that

compliance with such rules and regulations was important to Cingular.




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   Case 1:07-cv-00623-MHS      Document 123     Filed 06/17/2007    Page 32 of 47




            NASCAR Informs Cingular That It Will Not Be Permitted
                 To Change Its Name or Use AT&T Marks
      56.    Shortly after the public announcement of Nextel’s exclusive

sponsorship of the Cup Series, NASCAR agreed to meet with Cingular, RCR and

Cingular’s agents.

      57.    During or shortly after this meeting, in June 2003, NASCAR made it

clear to Cingular that it would not be permitted to feature on Car #31 brands or

marks in the telecommunications category that it had not featured prior to the

announcement of the Nextel Sponsorship Agreement.

      58.    NASCAR also informed Cingular that it would not be permitted to

feature the marks of its parent companies (then (i) BellSouth (now part of AT&T)

and (ii) SBC (now known as AT&T)) on Car #31.

      59.    NASCAR reiterated this position to Cingular on multiple occasions

during the following years.

      60.    For example, after AT&T announced a merger with BellSouth, and

there were press reports that Cingular might transition to the AT&T brand,

NASCAR wrote to RCR and repeated a position that it had repeatedly taken in the

past. On March 26, 2006, Michael Helton, NASCAR’s President, emailed a letter

to RCR stating:

             [Our] communication has been clear and consistent . . . .
             Should AT&T acquire BellSouth and phase out the


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             Cingular wireless brand, no other telecommunications
             brand will be allowed to replace Cingular Wireless as a
             team sponsor in the NASCAR NEXTEL Cup Series.

      61.    Plaintiff’s internal documents confirm that Cingular and AT&T

understood that NASCAR would not allow Cingular to place AT&T marks and

logos on Car #31.

      62.    A memorandum produced from AT&T’s files states that it was well-

known that AT&T would not be permitted to use the Cingular sponsorship as a

way of promoting AT&T, and that AT&T’s objective was to “force its way into the

sport.” This memorandum, prepared by AT&T “in tandom [sic]” with its

marketing consultants, states:

             [I]t is our understanding – and generally accepted as fact
             across the sport – that, neither of these two brands
             [Cingular and Alltel] are allowed to change their
             sponsorships in any way; they cannot increase the scope
             of their sponsorships, change the cars they sponsor,
             change race team affiliations or sponsor the car/team
             with any other communications-related brand.

      63.    The memorandum also discusses the potential reaction of NASCAR

fans to “AT&T challenging the barriers described above – taking on NASCAR

and/or Sprint Nextel – and ‘forcing’ its way into the sport.”

    Cingular Files Suit, and a Preliminary Injunction Is Entered, Which Is
                             Currently On Appeal
      64.    Cingular commenced this litigation in March 2007.



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        65.   On May 18, 2007, this Court granted Cingular’s Motion for a

Preliminary Injunction.

        66.   On May 19, 2007, Cingular raced Car #31 with a paint scheme that

included the AT&T marks and that NASCAR specifically disapproved in January

2007.

        67.   NASCAR has been damaged by Cingular’s placement of the AT&T

marks on Car #31. Specifically, Cingular’s refusal to follow NASCAR rules and

accept NASCAR’s denial of this paint scheme, and the filing of this lawsuit, has

undermined NASCAR’s authority as the sanctioning body of stock car auto racing.

                                     COUNT I

                           BREACH OF CONTRACT

                                (Against Cingular)
        68.   NASCAR realleges all of the allegations set forth in paragraphs 1

though 67 above.

        69.   Cingular and its officers and employees, as NASCAR members,

agreed to be bound by the NASCAR Rule Book.

        70.   Cingular breached NASCAR Rules 20-3.11(B) and 1-4 when it placed

a paint scheme on Car #31 that had been specifically denied by NASCAR.

        71.   Further, Cingular breached NASCAR Rule 1-5 of the when it initiated

this litigation. Rule 1-5 states that disputes between NASCAR and its members,


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  Case 1:07-cv-00623-MHS      Document 123      Filed 06/17/2007   Page 35 of 47




which includes Cingular, are “non-litigable” absent a showing that NASCAR’s

determination was made for no purpose other than a bad faith intent to harm or

cause economic loss.

      72.   Cingular has not pleaded, and cannot prove, that NASCAR’s denial of

its request to place AT&T’s marks on Car #31 was made in bad faith.

      73.   These breaches are material in light of the express terms of the

NASCAR Rule Book.

      74.   As a result of Cingular’s breaches, NASCAR has suffered and will

suffer damages in an amount not less than ONE HUNDRED MILLION

DOLLARS ($100,000,000).

                                   COUNT II
  BREACH OF CONTRACT – IMPLIED COVENANT OF GOOD FAITH
                   AND FAIR DEALING

                               (Against Cingular)

      75.   NASCAR realleges all of the allegations set forth in paragraphs 1

though 74 above.

      76.   A covenant of good faith and fair dealing is implied in the

performance of Cingular’s obligations under the 2007 Membership and License

Application, including the agreement to abide by the terms and conditions of the

NASCAR Rule Book.



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   Case 1:07-cv-00623-MHS      Document 123      Filed 06/17/2007    Page 36 of 47




      77.    This implied duty requires Cingular, and its officers and employees, to

perform their promises consistent with the duties of good faith and fair dealing.

      78.    Cingular violated the implied covenant of good faith and fair dealing

by and through its various efforts to “ambush” Nextel’s exclusive sponsorship

rights, some of which have been revealed in the discovery to date.

      79.    Cingular further violated the implied covenant of good faith and fair

dealing by commencing this lawsuit in response to NASCAR’s determination not

to permit the display of the AT&T marks on Car #31. Cingular agreed to “accept”

all NASCAR determinations made concerning advertising on cars running in

NASCAR NEXTEL Cup Series races.

      80.    These breaches of the implied covenant of good faith and fair dealing

resulted in the “ambush” of Nextel’s bargained-for exclusive sponsorship rights

and were material.

      81.    As a result of Cingular’s breaches, NASCAR has suffered and will

suffer damages in an amount not less than ONE HUNDRED MILLION

DOLLARS ($100,000,000).

                                    COUNT III
                     FRAUD AND MISREPRESENTATION

                                (Against Cingular)
      82.    NASCAR realleges all of the allegations set forth in paragraphs 1


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  Case 1:07-cv-00623-MHS        Document 123      Filed 06/17/2007   Page 37 of 47




through 81 above.

        83.   Cingular falsely represented that it would abide by the terms of the

NASCAR Rule Book. Officers and employees of Cingular, including without

limitation, Daryl Evans, Marc Lefar, John Burbank and Timothy McGhee, each

signed a 2007 NASCAR Membership and License Application on behalf of

Cingular.

        84.   Those applications were received by NASCAR on February 8 and 9,

2007.

        85.   On those applications, Cingular, through its agents, represented,

among other things:

              NASCAR RULE BOOK. I am familiar with the current
              NASCAR Rule Book, and I agree to abide by such rules
              as they may be amended from time to time.

        86.   Cingular knew that its promise to abide by the terms of the NASCAR

Rule Book was false when it was made, and Cingular had no present intent to

perform when such promise was made.

        87.   On the very same date that certain Cingular executives signed the

applications on behalf of Cingular, Cingular’s internal documents demonstrate that

it was developing a comprehensive plan to “ambush” Nextel’s bargained-for

exclusivity at the Daytona 500.




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   Case 1:07-cv-00623-MHS       Document 123         Filed 06/17/2007   Page 38 of 47




      88.    Further, Cingular began considering the possibility of litigation

against NASCAR in order to “force” the AT&T brand on to Car #31 in the Spring

of 2006 and intended to challenge NASCAR’s determinations with respect to paint

schemes.

      89.    After AT&T’s acquisition of BellSouth closed in late December 2006,

Cingular requested to re-brand Car #31 to AT&T. NASCAR rejected that request,

as it had similar requests repeatedly in the past.

      90.    Accordingly, when Cingular agreed to abide by the terms of the

NASCAR Rule Book in February 2007, it did so with knowledge that it would not

“accept NASCAR’s decision [with regard to advertising on cars]” as required of all

NASCAR members by the NASCAR Rule Book.

      91.    Cingular intended at the time it submitted in NASCAR Membership

Applications in 2007 to commence litigation against NASCAR.

      92.    Cingular intended to induce NASCAR to accept its 2007 Membership

and License Application when it falsely represented that it would abide by the

terms of the NASCAR Rule Book.

      93.    If Cingular had refused to agree to this portion of the 2007

Membership and License Application, NASCAR would not have accepted

Cingular’s application for membership in NASCAR.




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  Case 1:07-cv-00623-MHS      Document 123     Filed 06/17/2007   Page 39 of 47




      94.   NASCAR justifiably relied on Cingular’s false representations.

      95.   As a result of Cingular’s fraudulent misrepresentations, NASCAR has

suffered and will suffer damages in an amount not less than ONE HUNDRED

MILLION DOLLARS ($100,000,000).

                                   COUNT IV

             TORTIOUS INTERFERENCE WITH CONTRACT

                               (Against Cingular)
      96.   NASCAR realleges all of the allegations set forth in paragraphs 1

through 95 above.

      97.   NASCAR has a contract with Nextel prohibiting the use of the AT&T

marks in NASCAR NEXTEL Cup Series races.

      98.   NASCAR repeatedly apprised Cingular of the Nextel Sponsorship

Agreement and its prohibition on the use of AT&T marks in NASCAR NEXTEL

Cup Series races.

      99.   Cingular, through a lawsuit that it was contractually prohibited from

bringing and through its conduct after securing the May 18, 2007 injunction,

procured a breach of the Nextel Sponsorship Agreement.

      100. Given the repeated communications that Cingular would not be

permitted to use AT&T marks on Car #31, Cingular had no justification in

bringing this lawsuit or insisting that AT&T marks be displayed on Car #31.


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  Case 1:07-cv-00623-MHS      Document 123     Filed 06/17/2007   Page 40 of 47




      101. As a result of Cingular’s tortious interference with the Nextel

Sponsorship Agreement, NASCAR has suffered and will suffer damages in an

amount not less than ONE HUNDRED MILLION DOLLARS ($100,000,000).

                                   COUNT V
                  CONSPIRACY TO AID AND ABET
             TORTIOUS INTERFERENCE WITH CONTRACT

                    (Against Defendants AT&T and Cingular)

      102. NASCAR realleges all of the allegations set forth in paragraphs 1

though 101 above.

      103. Counterclaim defendant AT&T conspired with Cingular and aided

and abetted Cingular in tortiously interfering with NASCAR’s relationship with

NEXTEL by pushing Cingular to file suit against NASCAR (notwithstanding

Cingular’s covenant not to sue NASCAR), aggressively soliciting extensive media

coverage of Cingular’s tortious conduct, and attempting to “force” the AT&T

brand into the NASCAR NEXTEL Cup Series, notwithstanding its

“understanding” that Cingular was not “allowed to change [its] sponsorship[] in

any way.”

      104. AT&T conspired with and aided and abetted Cingular’s tortious

conduct in order to interfere with NASCAR’s relationship with NEXTEL.

      105. As a result of the tortious misconduct by defendants Cingular and



                                        40
   Case 1:07-cv-00623-MHS      Document 123     Filed 06/17/2007    Page 41 of 47




AT&T, NASCAR has suffered and will continue to suffer damages in an amount

not less than ONE HUNDRED MILLION DOLLARS ($100,000,000).

                                    COUNT VI

                  THIRD PARTY BREACH OF CONTRACT

                                (Against Cingular)
      106. NASCAR realleges all of the allegations set forth in paragraphs 1

though 105 above.

      107. NASCAR has opposed and continues to dispute Cingular’s claim that

it is a third-party beneficiary of the annual contracts between NASCAR and RCR.

But to the extent that this Court has recognized, and the Court of Appeals affirms,

that Cingular may maintain a such claim, NASCAR should be considered, by the

same logic, a third-party beneficiary of the RCR-Cingular Agreement.

      108. Specifically, RCR represented, warranted and covenanted, in Section

18.d of the RCR-Cingular Agreement, that its operations and activities would

comply with the rules and regulations of NASCAR.

      109. The parties to the RCR-Cingular Agreement included this provision

for the benefit of NASCAR.

      110. Moreover, Section 15 of the RCR-Cingular Agreement and Section 3

of Exhibit B to the RCR-Cingular Agreement restricted the marks permitted for

display on Car #31 to “Cingular Marks.” And the RCR-Cingular Agreement does


                                         41
   Case 1:07-cv-00623-MHS      Document 123      Filed 06/17/2007   Page 42 of 47




not, on its face, permit the display of marks owned by an affiliate of Cingular.

These restrictions are consistent with NASCAR’s repeated statements to Cingular

and RCR (made prior to the execution of the RCR-Cingular Agreement) that

NASCAR would not permit Cingular to feature telecommunications brands other

than “Cingular” on Car #31.

      111. NASCAR did not and does not merely derive an incidental benefit

from the performance of the RCR-Cingular Agreement, rather Cingular and RCR

intended to benefit NASCAR by including a provision requiring RCR to follow

NASCAR’s rules and regulations and limiting the scope of the sponsorship to the

“Cingular” brand.

      112. Cingular breached the RCR-Cingular Agreement by insisting upon the

display of the brand and logo of Cingular’s parent company, AT&T, on Car #31.

Cingular further breached the RCR-Cingular Agreement by displaying the brand

and logo of Cingular’s parent company, AT&T, on Car #31.

      113. Based on the material breach by Cingular of the RCR-Cingular

Agreement, which Cingular caused, NASCAR has suffered and will continue to

suffer damages in an amount not less than ONE HUNDRED MILLION

DOLLARS ($100,000,000).




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   Case 1:07-cv-00623-MHS       Document 123      Filed 06/17/2007    Page 43 of 47




                                    COUNT VII

                         DECLARATORY JUDGMENT
                          (Against Cingular and AT&T)
      114. NASCAR realleges all of the allegations set forth in paragraphs 1

though 113 above.

      115. On May 18, 2007, this Court, based on its interpretation of the 2007

Driver and Car Owner Agreement, issued an Order granting Plaintiff’s Motion for

Preliminary Injunction and restraining NASCAR from “interfering with plaintiff’s

contractual right . . . to introduce and feature the ‘AT&T’ logo and brand in the

paint scheme of the #31 Car in connection with the #31 Car’s participation in

NASCAR’s Cup Series races.”

      116. NASCAR seeks a declaration that NASCAR may take certain actions

for the 2008 season in order to protect NASCAR and all participants in the sport by

placing NASCAR into full compliance with the terms and conditions of the Nextel

Sponsorship Agreement.

      117. NASCAR seeks an order from the Court declaring that NASCAR has

the right to take the following actions and that such actions will not constitute a

breach by NASCAR of any of the alleged agreements or alleged promises at issue

in this dispute:




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  Case 1:07-cv-00623-MHS    Document 123      Filed 06/17/2007   Page 44 of 47




           • Pursuant to Rule 2-1 of the NASCAR Rule Book, NASCAR
             may exercise its discretion to not offer NASCAR
             membership to Cingular or AT&T for the 2008 NASCAR
             NEXTEL Cup Series season.

           • Pursuant to Rule 3-1 of the NASCAR Rule Book, NASCAR
             may exercise its discretion to not issue any licenses or other
             credentials to Cingular or AT&T for the 2008 NASCAR
             NEXTEL Cup Series season.

           • NASCAR may exercise its discretion to not offer a Driver
             and Car Owner Agreement for the 2008 NASCAR NEXTEL
             Cup Series season to any car sponsored by a
             telecommunications company other than Nextel;

           • NASCAR may exercise its discretion to not include in its
             annual 2008 Driver and Car Owner Agreements any
             “grandfathering” provisions permitting display of any
             telecommunications brand other than Nextel in NASCAR
             NEXTEL Cup Series races; and

           • Pursuant to Rule 7-1.E of the NASCAR Rule Book,
             NASCAR may exercise its discretion to not accept an
             Official Entry Blank for any NASCAR NEXTEL Cup Series
             race submitted by any NASCAR Member for a car
             sponsored by a telecommunications company other than
             Nextel.
      WHEREFORE, NASCAR respectfully prays for the following relief
against Cingular:

           (1)   Compensatory damages in an amount to be determined at trial,

                 but in any event not less than ONE HUNDRED MILLION

                 DOLLARS ($100,000,000).;

           (2)   A Declaratory Judgment that:




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Case 1:07-cv-00623-MHS    Document 123          Filed 06/17/2007   Page 45 of 47




              • NASCAR is not required to offer NASCAR
                membership to Cingular or AT&T for the 2008
                NASCAR NEXTEL Cup Series season.

              • NASCAR is not required to issue any licenses or
                other credentials to Cingular or AT&T for the 2008
                NASCAR NEXTEL Cup Series season.

              • NASCAR is not required to offer a Driver and Car
                Owner Agreement for the 2008 NASCAR NEXTEL
                Cup Series season to any car sponsored by a
                telecommunications company other than Nextel;

              • NASCAR is not required to include in its 2008 Driver
                and Car Owner Agreements any “grandfathering”
                provisions permitting display of any
                telecommunications brand other than Nextel in
                NASCAR NEXTEL Cup Series races; and

              • NASCAR is not required to accept an Official Entry
                Blank for any NASCAR NEXTEL Cup Series race
                submitted by any NASCAR Member for a car
                sponsored by a telecommunications company other
                than Nextel.
        (3)   Reasonable attorneys’ fees and costs pursuant to NASCAR

              Rule 1-5;

        (4)   Interest at the legal rate; and

        (5)   Any further relief this Court deems just and proper.




                                     45
Case 1:07-cv-00623-MHS     Document 123     Filed 06/17/2007    Page 46 of 47




   Respectfully submitted this 17th day of June, 2007.


                                  By: /s Richard L. Robbins
                                  Georgia Bar #608030
                                  John H. Fleming
                                  Georgia Bar #263250
                                  Jenifer E. Niedenthal
                                  Georgia Bar #143132
                                  SUTHERLAND ASBILL & BRENNAN LLP
                                  999 Peachtree Street, N.E.
                                  Atlanta, Georgia 30309-3996
                                  Phone: (404) 853-8000
                                  Fax: (404) 853-8806

                                  OF COUNSEL:

                                  David R. Gelfand
                                  Parker H. Bagley
                                  Daniel M. Perry
                                  MILBANK, TWEED, HADLEY & MCCLOY LLP
                                  1 Chase Manhattan Plaza
                                  New York, New York 10005
                                  Phone: (212) 530-5000
                                  Fax: (212) 530-5219

                                  Attorneys for Defendant,
                                  National Association for
                                  Stock Car Auto Racing, Inc.




                                    46
   Case 1:07-cv-00623-MHS      Document 123      Filed 06/17/2007    Page 47 of 47



                         CERTIFICATE OF SERVICE

      I hereby certify that on June 17, 2007, I electronically filed the within and

foregoing DEFENDANT’S ANSWER TO FIRST AMENDED COMPLAINT

AND COUNTERCLAIMS with the Clerk of Court using the CM/ECF system,

which will automatically send e-mail notification of such filing to the following

attorneys of record:

                          David L. Balser - dbalser@mckennalong.com
                          Nathan L. Garroway - ngarroway@mckennalong.com
                          Thuy Vu Taitt - tvu@mckennalong.com
                          McKenna Long & Aldridge LLP
                          303 Peachtree Street, Suite 5300
                          Atlanta, GA 30308

                          Michael K. Kellogg mkellogg@khhte.com
                          Colin S. Stretch cstretch@khhte.com
                          James M. Webster III jwebster@khhte.com
                          Daniel A. Loeffler dloeffler@khhte.com
                          1615 M Street, Suite 400
                          Washington, DC 20036

                          Peter Canfield pcanfield@dowlohnes.com
                          Michael Kovaka mkovaka@dowlohnes.com
                          Dow Lohnes PLLC
                          Six Concourse Parkway
                          Suite 1800
                          Atlanta, GA 30328-6117


      This 17th day of June, 2007.

      \

                                              s/Richard L. Robbins

								
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