UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

KIRK JOHNSTON,

Plaintiff,

v.

CHAD KROEGER, MICHAEL KROEGER, 

RYAN PEAKE, DANIEL ADAIR, WARNER 

MUSIC GROUP, ATLANTIC RECORDING 

CORP., ROADRUNNER RECORDS, INC., 

WARNER/CHAPPELL MUSIC, INC., AND 

LIVE NATION ENTERTAINMENT, INC.,

Defendants.

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NO. 20-CV-00497-RP 

DEFENDANTS CHAD KROEGER, MICHAEL KROEGER, RYAN PEAKE, DANIEL

ADAIR, ROADRUNNER RECORDS, INC., AND WARNER CHAPPELL MUSIC, INC.’S 

REPLY IN SUPPORT OF THEIR MOTION TO DISMISS PLAINTIFF’S COMPLAINT 

PURSUANT TO FRCP 12(B)(6)

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I. INTRODUCTION

1. Defendants’ Motion to Dismiss (“Motion” or “Mot.”) is premised upon a simple 

and routine request that this Court listen to the two musical works at issue. See (and hear) audio 

files attached as Exs. 1-2 to the Motion. If the two recordings do not sound substantially similar 

to the Court, then Plaintiff cannot state a claim for copyright infringement, and his complaint 

must be dismissed with prejudice.

2. In its analysis, the Court may properly assume the role of an ordinary observer on 

this Rule 12(b)(6) motion and determine substantial similarity as a matter of law. Indeed, the 

ordinary observer test asks whether “a layman [would] detect piracy without any aid or suggestion 

or critical analysis by others.” Peel & Co., Inc. v. Rug Mkt., 238 F.3d 391, 398 (5th Cir. 2001). 

No special expert analysis or dissection is necessary to decide substantial similarity.

3. Far from being unusual or disfavored, as Plaintiff contends, in meritless copyright 

infringement lawsuits such as this one, Rule 12 motions serve a vital gatekeeping function. Mot. 

1-3, 9-10. They protect creators from having to defend against baseless claims just because, e.g., 

two songs both happen to be written about being a “rock star.” Case law (and common sense) 

dictate that any such trivial thematic similarity cannot give rise to a copyright claim. Mot. 10-11 

(collecting cases). Likewise, Rule 12 motions guard against far-fetched claims that a defendant 

gained access to a work because he somehow must have heard a plaintiff’s obscure song.

4. Faced with the fatal reality that the operative sound recordings of Plaintiff’s Work 

and Defendants’ Work sound nothing alike (not to mention that Defendants had no reasonable 

opportunity to hear Plaintiff’s Work), Plaintiff tries to avoid the straightforward analysis that 

compels dismissal of this case. Indeed, Plaintiff’s Response in Opposition (“Opposition” or 

“Opp.”) is telling because it impermissibly relies upon “stripped-down” versions of the works and 

a manipulated “mash-up” in its attempt to avoid dismissal. Plaintiff’s obfuscation must fail, 

however, because what matters under the threshold ordinary observer test is whether the alleged 

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musical works at issue sound substantially similar. Because they do not, and because no 

reasonable juror could find otherwise, this case should be dismissed with prejudice.

II. ARGUMENT

A. The Works at Issue Are Not Substantially Similar to an Ordinary Observer.

5. This case can and should be dismissed now because the works at issue sound 

nothing alike. No amount of amendment nor discovery can cure this fundamental defect in 

Plaintiff’s copyright infringement claim.

6. Plaintiff’s Work is a musical composition called Rock Star. In support of their 

Motion, Defendants submitted a sound recording of Plaintiff’s Work (Mot. Ex. 1), which matches 

the deposit copy that Plaintiff submitted to the U.S. Copyright Office in order to register a 

copyright in his musical composition. Plaintiff does not dispute this. Opp. 14. Defendants’ Work 

is the song Rockstar, written and performed by the band Nickelback. In support of their Motion, 

Defendants submitted the commercially available recording of Rockstar (Mot. Ex. 2), which is the 

work Plaintiff alleges is infringing. See Complaint ¶ 28.

7. A copyright infringement claim requires both (a) factual copying (i.e., access plus 

probative similarity), and (b) substantial similarity. See Positive Black Talk Inc. v. Cash Money 

Records, Inc., 394 F.3d 357, 367 (5th Cir. 2004), abrogated on other grounds by Reed Elsevier, 

Inc. v. Muchnick, 559 U.S. 154 (2010). Plaintiff’s discussion of probative similarity is irrelevant 

to this Motion. Opp. 7. If there is no substantial similarity, Plaintiff cannot state a claim for 

copyright infringement, and the issue of probative similarity (and access) is moot. To decide 

substantial similarity, “a side-by-side comparison must be made between the original and the copy 

to determine whether a layman would view the two works as ‘substantially similar.’” Creations 

Unlimited, Inc. v. McCain, 112 F.3d 814, 816 (5th Cir. 1997). In music cases, courts applying this

“ordinary observer” test consider whether “[Defendants] took from [Plaintiff’s Work] so much of 

what is pleasing to the ears of lay listeners[.]” Gottwald v. Jones, 2011 WL 4344038, at *4 

(S.D.N.Y. Sept. 12, 2011). 

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8. Complex analytic dissection and expert analysis have no place under the ordinary 

observer analysis; the test is whether a layman will detect infringement immediately, and without 

aid. Peel, 238 F.3d at 398. This is particularly true in cases, like this one, involving popular music. 

See Arnstein v. Porter, 154 F.2d 464, 468 (2d Cir. 1946) (“the test is the response of the ordinary 

lay hearer ... on that issue, ‘dissection’ and expert testimony are irrelevant.”).

9. Texas district courts have not hesitated to dismiss copyright cases on Rule 12(b)(6) 

motions where, after comparing the works at issue, the court concluded that, like here, they were 

not substantially similar to an ordinary observer. See, e.g., Randolph v. Dimension Films, 634 F. 

Supp. 2d 779, 787 (S.D. Tex. 2009) (copyright infringement claim properly dismissed, without 

leave to amend, where court compared plaintiff’s book and defendants’ movie and determined 

they were not substantially similar); Rucker v. Harlequin Enterprises, Ltd., 2013 WL 707922, at 

*5-10, (S.D. Tex. Feb. 26, 2013) (granting motion to dismiss, without leave to amend, where court 

performed a side-by-side comparison of defendant’s romance novel and plaintiff’s romance novel 

treatment and concluded they were not substantially similar in protectable expression).

10. And courts across the country have granted motions to dismiss in analogous music 

cases after performing the ordinary observer analysis and determining the songs at issue were not 

substantially similar. See, e.g., Nelson v. PRN Prods., Inc., 873 F.2d 1141, 1143 (8th Cir. 1989) 

(upholding dismissal with prejudice of claim alleging copyright infringement; where “[t]he District 

Court had before it ... complete copies of both [plaintiff’s] song and Prince’s and was therefore in 

proper position to apply the substantial similarity test” and “the trial court carefully studied the 

lyrics involved and determined that reasonable minds could not differ as to the absence of 

substantial similarity.”); Gottwald, 2011 WL 4344038, at *4-5 (applying “ordinary lay hearer” 

analysis and finding no lyrical or musical similarity and dismissing counterclaim with prejudice); 

Pyatt v. Raymond, 2011 WL 2078531, at *8 (S.D.N.Y. May 19, 2011) (in granting motions to 

dismiss, holding “not only are the lyrics of both songs different, but the overall musical impression 

of each song is also different . . . . no average lay observer would recognize the alleged copy as 

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having been appropriated from the copyrighted work.”) (internal citation and quotation marks 

omitted); Staggs v. West, 2009 WL 2579665, at *3 (D. Md. Aug. 17, 2009) (comparing music and 

lyrics of songs at issue and granting motion to dismiss).

Plaintiff Concedes That the Lyrics of the Works are Not Substantially Similar.

11. As set forth in the Motion, the lyrics of Plaintiff’s Work and Defendants’ Work are 

not substantially similar. Plaintiff’s Work contains a hopeful wish list of what the singer would 

do if he were a rock star, whereas Defendants’ Work cynically highlights the darker side of rockn-roll stardom. Mot. 13. The only conceivable similarities are the short phrase “be a rock star” 

and vaguely alleged “lyrical themes,” neither of which is protectable by copyright. See Mot. 10-12.

12. Plaintiff offers no meaningful response to these points (or the numerous examples 

of earlier works depicting the rock star fantasy, Mot. 11, n.5), instead arguing that the “selection 

and arrangement of unprotected components” can be protected by copyright under certain 

circumstances. Opp. 12, quoting Brown Bag Software v. Symantec Corp., 960 F.2d 1465, 1476 

n.4 (9th Cir. 1992).

13. But Plaintiff’s Opposition still does not identify what he claims to be the lyrical 

similarities between the works at issue – regardless of whether his lyrics are protectable or whether 

they contain some supposed protectable combination of unprotected elements. This is because 

both songs’ generic mention of a “tour bus,” “jets,” and celebrities cannot suffice to state a claim 

for copyright infringement by any metric. See Mot. 11-12.1

14. In failing to respond to – let alone refute – Defendants’ arguments regarding the 

lyrics of the works at issue, Plaintiff has conceded that they are not substantially similar.

Comparing the Works at Issue, the Music is Not Substantially Similar.

 1 Compare Metcalf v. Bochco, 294 F.3d 1069, 1073-74 (9th Cir. 2002), overruled on other 

grounds by Skidmore as Tr. for Randy Craig Wolfe Tr. v. Led Zeppelin, 952 F.3d 1051 (9th Cir. 

2020) (substantial similarity possible based on selection and arrangement of unprotected 

elements where works shared a dozen specific similarities, including both works’ protagonists 

being a “young, good-looking, muscular black surgeon” and both including plot points that “the 

hospital’s bid for reaccreditation is vehemently opposed by a Hispanic politician.”).

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15. Like the lyrics, the music of Plaintiff’s Work and Defendants’ Work is not 

substantially similar. An ordinary listener comparing the sound recording of Plaintiff’s Work –

which exactly reflects what he submitted to the Copyright Office as embodying his musical 

composition – with the commercial sound recording of Defendants’ Work will find that they sound 

nothing alike. See Mot. 14, Exs. 1-2. Therefore, to decide Defendants’ Motion to Dismiss, the 

Court need simply listen to Plaintiffs’ Work (as contained in Exhibit 1 to Defendants’ Motion) and 

Defendants’ Work (as contained in Exhibit 2 to Defendants’ Motion). The Court’s analysis can 

and should end there.

It is Improper to Look Beyond the Works at Issue.

16. Recognizing that a simple side-by-side comparison of the sound recordings of 

Plaintiff’s Work and Defendants’ Work is damning to Plaintiff’s argument, Plaintiff contends that 

special “stripped-down” versions, a “mash-up,” and musicological analysis are required to 

ascertain the alleged infringement. Opp. 11, 14-16. Not only is Plaintiff wrong, but by insisting 

that complex dissection and musical gymnastics are necessary to sustain his claim, he effectively 

concedes the works at issue do not sound substantially similar to an ordinary listener. As the 

materials that Plaintiff submitted as Exhibits 1-3 to his Opposition do not reflect the actual works 

at issue, they have no place in the Court’s consideration of this Motion.

17. As a threshold matter, Plaintiff’s submission of such materials is inconsistent with 

core aforementioned Fifth Circuit precedent holding that in order to determine substantial 

similarity, “a side-by-side comparison must be made between the original and the copy to 

determine whether a layman would view the two works as ‘substantially similar,’” “without any 

aid or suggestion or critical analysis by others,” resulting in a reaction that “should be

spontaneous and immediate.” Creations Unlimited, 112 F.3d at 816; Peel, 238 F.3d at 398. In 

other words, expert testimony, demonstratives, and complex analytical dissection going beyond 

what a layman would perceive from the works themselves have no place in the substantial 

similarity analysis. As a result, Plaintiff’s purported exhibits (Opp. Exs. 1-3) – entailing an

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alleged 2019 acoustic guitar performance of Plaintiff’s song, recorded only after his awareness of 

Defendants’ Work (Johnston Decl. (Dkt. 21-1) ¶ 1 & Ex. 1, Complaint ¶ 29) – as well as 

Plaintiff’s purported “technical explanation” of the supposed musicological similarities between 

the works (Opp. 15-16) are simply not relevant to the central task before the Court and cannot be 

considered on this Motion. Randolph, 634 F. Supp. 2d at 788; see also Arnstein, 154 F.2d at 

472-73 (“The proper criterion ... is not an analytic or other comparison of the respective musical 

compositions as they appear on paper or in the judgment of trained musicians.”). Regardless, 

Plaintiff’s Exhibits are otherwise unpersuasive.2

18. Additionally, while the Court may compare the works at issue on a motion to 

dismiss (see Mot. 3), generally the Court may not consider extrinsic evidence. See Scanlan v. 

Texas A&M Univ., 343 F.3d 533, 536 (5th Cir. 2003) (“Although the district court may not go 

outside the complaint, this Court has recognized one limited exception [for] ... documents that 

are referred to in the plaintiff’s complaint and are central to the plaintiff’s claim.”). Here, the 

purported “stripped-down versions” and “mash-up” are not the works at issue, and are not 

otherwise properly before the Court on this Rule 12(b)(6) Motion. See Pyatt, 2011 WL 2078531,

at *9-10 (on motions to dismiss, rejecting plaintiff’s attempt to introduce other sound recordings 

of plaintiff’s song that had not been registered with the Copyright Office because “those works 

are not the subject of the Plaintiffs’ complaint.”).

19. Moreover, materials specially created to compare the works at issue have no place 

in the ordinary observer analysis. In Randolph, for example, where the plaintiff “submitted a 

PowerPoint presentation that perform[ed] a side-by-side comparison of the two works[,]” the court 

emphasized that “demonstrative aids of the type that [plaintiff] has submitted are not useful in 

 2 Plaintiff’s illogical claim that his added Exhibits and analysis merely “filter out the nonprotectable elements of the songs” (Opp. 14) misapprehends the purpose of filtration in the Fifth 

Circuit, which is to limit the scope of a plaintiff’s asserted copyright protection when 

determining substantial similarity, not to expand it beyond what a layperson would ordinarily 

perceive when comparing the actual works at issue. See Kepner-Tregoe, Inc. v. Leadership 

Software, Inc., 12 F.3d 527, 533-34 (5th Cir. 1994).

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determining substantial similarity.” 634 F. Supp. 2d at 791-92. Citing Peel’s dictate against “aid 

or suggestion or critical analysis by others” (238 F.3d at 398), the court concluded that because 

“[o]nly the works themselves are probative in a substantial similarity analysis[,]” the proper 

comparison in Randolph was between “complete copies of the works[,]” i.e., plaintiff’s book and 

defendants’ movie. Id. at 788, 792. Likewise, here, the proper comparison is between Plaintiff’s 

Work and Defendants’ Work.

20. The case that Plaintiff cites for the proposition that courts consider “stripped-down 

versions” and “mash-ups,” Williams v. Bridgeport Music, Inc., 2015 WL 13648068 (2014 U.S.

Dist. LEXIS 199374) (C.D. Cal. Jan. 28, 2015), is inapposite. Williams involved musical works 

(most notably Marvin Gaye’s Got To Give It Up) whose copyright was limited to the sheet music, 

or “deposit copy,” that was submitted to the Copyright Office since the works were created under 

the 1909 Copyright Act. Id. at *2-3. This case, however, and the scope of copyright protection in

Plaintiff’s Work, is governed by the current 1976 Copyright Act, which permits the author of a 

musical composition to register the sound recording embodying that musical composition as the 

“deposit copy” for the composition. 17 U.S.C. § 408(b). Thus, if anything, Williams supports this

Court comparing the sound recording of Plaintiff’s Work (i.e., what he deposited with the 

Copyright Office) – not a “stripped-down” or “edited” version, and certainly not a modified 

version allegedly made in 2019 on the eve of litigation – with Defendants’ Work.

21. This approach to the analysis is consistent with the fundamental role that deposit 

copies play in the U.S. copyright registration process. “As a general rule, a registration for a work 

of authorship covers the entire copyrightable content of the authorship that (i) is claimed in the 

application, (ii) is owned by the claimant, and (iii) is contained in the deposit copy(ies).” U.S. 

Copyright Office, Compendium of U.S. Copyright Office Practices § 504 (3d ed. 2017) (emphasis 

added). Having submitted the sound recording embodying Plaintiff’s Work to the Copyright 

Office as the deposit copy, Plaintiff cannot now try to redefine the parameters of his copyright

after the fact, by, inter alia, adding performance elements such as an acoustic guitar, or changing 

Case 1:20-cv-00497-RP Document 23 Filed 12/17/20 Page 8 of 13
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the key, tempo, and rhythmic and melodic elements, in the hope of making Plaintiff’s Work seem 

more similar to Defendants’ Work. See Nicholls v. Tufenkian Imp./Exp. Ventures, Inc., 367 F. 

Supp. 2d 514, 520 (S.D.N.Y. 2005) (“a copyright does not encompass designs that vary in essential 

respects from what was presented to the Copyright Office. Otherwise, the purposes of the deposit 

requirement would be nullified.”); see also Creations Unlimited, 112 F.3d at 816 (where plaintiff 

had registered black-and-white line drawings of its T-shirts with the Copyright Office, the district 

court properly compared the deposited line drawings – rather than plaintiff’s T-shirts – with 

defendant’s T-shirts). Any analysis of Plaintiff’s claim in connection with this Motion must begin 

and end with the Plaintiff’s Work as defined in the deposit copy.

B. Plaintiff has Failed to Sufficiently Plead Access.

22. As a threshold matter, because a claim for copyright infringement requires both (a) 

factual copying (i.e., access plus probative similarity), and (b) substantial similarity, the Court 

need not reach the issue of access if it finds that the works at issue are not substantially similar. 

See Positive Black Talk Inc., 394 F.3d at 367; Rucker, 2013 WL 707922, at *2, n.2 (granting 

motion to dismiss and declining to consider access because “there is no actionable similarity 

between the works and therefore no infringement.”); Mot. 3-4. Nonetheless, Plaintiff has also 

failed to sufficiently plead access, which is an independent ground for granting the Motion.

23. Contrary to Plaintiff’s arguments in his Opposition, lack of access can be grounds 

for granting a motion to dismiss where, as here, a plaintiff’s allegations amount to bald speculation. 

Such decisions are not limited to summary judgment motions nor 12(b)(6) motions in pro se cases,

as Plaintiff suggests. For example, in Martinez v. McGraw, a case similarly involving two songs, 

the court granted defendants’ motion to dismiss, without leave to amend, finding that plaintiff’s 

allegations of access were based on the “tenuous string of facts” that defendant country star Tim 

McGraw purportedly had access to plaintiff’s song at issue because McGraw recorded music in 

the same recording studio, using some of the same songwriters, as another singer, Terri Clark, who 

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released a song with a title similar to another song of plaintiff’s. 2009 WL 2447611, at *5 (M.D. 

Tenn. Aug. 10, 2009).3

24. Similarly, in Arnett v. Jackson (which involved two songs titled Remember Me), 

the court granted defendants’ motion to dismiss on access, without leave to amend, where plaintiff 

allegedly made his song available on the Internet, sold copies, and provided it to four 

intermediaries who purportedly had a connection with defendant. 2017 WL 3493606, at *3-4 

(E.D.N.C. Aug. 14, 2017). The court held, “[a]t most, [plaintiff] plausibly alleges the mere 

possibility that [defendant] had the opportunity to listen to or copy Remember Me via [plaintiff’s] 

distributed recordings. That mere possibility does not suffice.” Id. at *2. And as to the purported 

access via intermediaries, the court found that plaintiff impermissibly relied on a “tortuous chain 

of hypothetical transmittals.” Id. at *4 (internal citation omitted). See Mot. 4, 6 (citing Martinez 

and Arnett). Plaintiff’s allegations of access here are equally tortuous.

25. Plaintiff goes to great lengths to try and distinguish Defendants’ other authorities 

on their procedural posture (see Opp. 8-9),4 but he has done nothing to substantively distinguish 

his untenable allegations of access from the other failed chain-of-events and widespread 

dissemination theories rejected in those cases. At best, Plaintiff’s access theory amounts to a vague 

claim that because he met with some (as-of-yet-still-unidentified) A&R representatives, 

purportedly sent out 15 demo CDs to major record labels, and played concerts in five cities 

someone from Nickelback or its record label, Roadrunner Records, must have somehow heard 

Plaintiff’s Work. See Mot. 6-8. This bald speculation about “hypothetical transmittals” cannot 

save a claim of access. As in Martinez and Arnett, Plaintiff’s claim should be dismissed at the 

pleading stage.

 3 Like Plaintiff here, the plaintiff in Martinez argued (unsuccessfully) that “Defendants’ Motion 

relies primarily on case law involving motions for summary judgment in an attempt to 

prematurely litigate this case on the merits.” 2009 WL 2447611, at *6. 4 Plaintiff’s attempt to distinguish Guzman is particularly curious. He claims that the judge in 

that case denied an earlier 12(b)(6) motion on access, but then attaches the 12(b)(6) ruling, which 

addressed the sufficiency of plaintiff’s allegations of copying. See Opp. 9, Ex. 4.

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26. Plaintiff urges the Court not to dismiss his complaint with prejudice because 

apparently “the current allegations regarding access are not the entirety of the assertions that 

Johnston could have alleged, but in the interest of brevity did not.” Opp. 11. Tellingly, however, 

although Plaintiff could have responded to Defendants’ Motion by filing an amended complaint 

and pleading additional facts regarding access, he did not. See FRCP 15(a)(1)(B). And the 

Opposition does not elaborate or provide any details about what allegations of access Plaintiff 

could purportedly add should he be given leave to amend (which he should not). See id.

27. Nor can Plaintiff credibly argue that he needs discovery in order to plead access. 

Opp. 7. As Plaintiff acknowledges in his Opposition, he should know to which individuals and 

companies he supposedly sent copies of Plaintiff’s Work, as well as where and when Snowblind 

Revival performed Plaintiff’s Work. See Opp. 6-7.

28. Because Plaintiff did not plead these additional facts allegedly supporting access in 

his complaint, nor amend to allege them in response to the Motion, the most logical conclusion is 

that he cannot plead access. Far from justifying discovery that will amount to a fishing expedition, 

Plaintiff’s pleading deficiencies demonstrate that this meritless case should be dismissed now.

III. CONCLUSION

29. For the foregoing reasons, and those set forth in the Motion, Plaintiff’s complaint 

should be dismissed without leave to amend. Because substantial similarity is based on a 

comparison of the works at issue by an ordinary observer, and the works at issue sound nothing 

alike, amendment would be futile. See Randolph, 634 F. Supp. 2d at 788 (“The works themselves, 

which this court fully considered, were not substantially similar. No pleading amendment by 

Randolph could change the works. When a claim of substantial similarity is dismissed [as] a matter 

of law, dismissal with prejudice is the logical result.”). Likewise, because Plaintiff has failed to 

plead access, despite two opportunities to do so, amendment would be futile on that ground, too.

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Dated: December 17, 2020 Respectfully Submitted,

MITCHELL SILBERBERG & KNUPP LLP

By: /s/David A. Steinberg___________________

David A. Steinberg

Emily F. Evitt

2049 Century Park East, 18th Floor

Los Angeles, CA 90067

Telephone: 310.312.2000

Email: das@msk.com; efe@msk.com

Counsel for Defendants

BAKER DONELSON BEARMAN,

CALDWELL & BERKOWITZ, P.C.

By: /s/ Kenneth E. McKay___________________

Kenneth E. McKay

Texas State Bar No. 13690835

1301 McKinney St.

Houston, Texas 77010

Telephone: 713.286.7179

Fax: 713.583.4603

Email: kmckay@bakerdonelson.com

Counsel for Defendants

Case 1:20-cv-00497-RP Document 23 Filed 12/17/20 Page 12 of 13
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CERTIFICATE OF SERVICE

I hereby certify that on December 17, 2020, the foregoing document was served via the 

Court’s CM/ECF system and in accordance with the Federal Rules of Civil Procedure on the 

following counsel:

COUNSEL FOR PLAINTIFF KIRK 

JOHNSTON

LAW OFFICE OF SESHA KALAPATAPU

Sesha Kalapatapu

2929 Allen Parkway, Suite 200

Houston, TX 77019

Telephone: 832.398.1771

Fax: 713.574.4719

Email: sesha@sktexaslaw.com

JONES WALKER LLP

Jeffrey J. Phillips

811 Main Street, Suite 2900

Houston, TX 77002

Telephone: 713.437.1864

Fax: 713.437.1810

Email: jphillips@joneswalker.com

COUNSEL FOR LIVE NATION 

ENTERTAINMENT, INC.

FOLEY & LARDNER LLP

Geoffrey H. Bracken

Michaela G. Bissett

1000 Louisiana, Suite 2000

Houston, Texas 77002-2099

Telephone: (713) 276-5500

Fax: (713) 276-5555

E-mails: gbracken@foley.com; 

mbissett@foley.com

___________/s/David A. Steinberg_____________

David A. Steinberg

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