EXHIBIT A

Case 6:20-cv-00490-ADA Document 98-1 Filed 08/04/21 Page 1 of 12
United States Court of Appeals

for the Federal Circuit

______________________ 

ANDRA GROUP, LP,

Plaintiff-Appellant

v.

VICTORIA'S SECRET STORES, L.L.C., VICTORIA'S

SECRET STORES BRAND MANAGEMENT, INC.,

VICTORIA'S SECRET DIRECT BRAND

MANAGEMENT, LLC, L BRANDS, INC.,

Defendants-Appellees

______________________ 

2020-2009

______________________ 

Appeal from the United States District Court for the 

Eastern District of Texas in No. 4:19-cv-00288-ALM-KPJ, 

Judge Amos L. Mazzant, III. 

______________________ 

Decided: August 3, 2021

______________________ 

MAEGHAN WHITEHEAD, Griffith Barbee PLLC, Dallas, 

TX, argued for plaintiff-appellant. Also represented by 

CASEY GRIFFITH. 

RICHARD WILLIAM MILLER, Ballard Spahr LLP, Atlanta, GA, argued for defendants-appellees. Also represented by LYNN E. RZONCA, Philadelphia, PA. 

 ______________________ 

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2 ANDRA GROUP, LP v. VICTORIA'S SECRET STORES, LLC

Before REYNA, MAYER, and HUGHES, Circuit Judges.

HUGHES, Circuit Judge. 

Andra Group, LP appeals the district court’s grant in 

part of the Defendants’ motion to dismiss for improper 

venue. Because we find that venue is improper in the Eastern District of Texas as to the three dismissed defendants 

under 28 U.S.C. § 1400(b), we affirm.

I 

Defendants are related companies. Andra Grp., LP v. 

Victoria’s Secret Stores, LLC, No. 4:19-cv-288, 2020 WL

1465894 at *1 (E.D. Tex. Mar. 26, 2020) (Decision). 

L Brands, Inc. (LBI) is the corporate parent of several retailers in the apparel and home product field. Id. This case 

involves the parent LBI and several Victoria’s Secret entities: (1) Victoria’s Secret Stores, LLC (Stores) operates the 

physical Victoria’s Secret stores; (2) Victoria’s Secret Direct 

Brand Management, LLC (Direct) manages the victoriassecret.com website and the Victoria’s Secret mobile application; and (3) Victoria’s Secret Stores Brand 

Management, Inc. (Brand) creates Victoria’s Secret 

branded intimate apparel and beauty products. Id. “LBI’s 

subsidiaries each maintain their own corporate, partnership, or limited liability company status, identity, and 

structure.” Id. Each Defendant is incorporated in Delaware. Andra Grp., LP v. Victoria’s Secret Stores, LLC, 

No. 4:19-cv-288, 2020 WL 2478546, at *2 (E.D. Tex. 

Feb. 24, 2020) (Report and Recommendation), report and 

recommendation adopted, Decision, 2020 WL 1465894. 

LBI, Direct, and Brand (collectively, the Non-Store Defendants) do not have any employees, stores, or any other physical presence in the Eastern District of Texas (the District). 

Id. at *3. Stores operates at least one retail location in the 

District. Id. at *5.

In April 2019, Andra sued Defendants for infringement 

of U.S. Patent No. 8,078,498 (the ’498 patent), which claims 

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ANDRA GROUP, LP v. VICTORIA'S SECRET STORES, LLC 3

inventions directed to displaying articles on a webpage, including applying distinctive characteristics to thumbnails 

and displaying those thumbnails in a “master display 

field.” ’498 patent 11:27–42. [J.A. 56] Andra’s infringement claims are directed to the victoriassecret.com website, related sites, and smartphone applications that 

contain similar functionality as the website. Appellant’s 

Br. 3–4.

Defendants moved to dismiss the infringement suit for 

improper venue under 28 U.S.C. § 1406(a), or in the alternative, to transfer the lawsuit to the Southern District of 

Ohio. Andra filed an amended complaint, and the Defendants renewed their motion. Report and Recommendation, 

2020 WL 2478546, at *1. Defendants argued that venue 

was improper because Stores did not commit acts of infringement in the District and the Non-Store Defendants 

did not have regular and established places of business in 

the District.

The magistrate judge recommended that the Non-Store 

Defendants be dismissed for improper venue but that the 

suit continue against Stores, because testimony by one 

Stores employee supported a finding of the alleged infringing acts in the District. Id. at *4–5. The magistrate judge 

did not consider transfer, because the parties had only 

briefed the issue of transfer where venue was improper 

against all the Defendants. Id. at *5. The magistrate judge 

discussed a potential division in the case, where venue was 

proper against some Defendants and improper against others, in a telephone conference on February 19, 2020, and 

Andra stated that it would proceed in the District against 

the Defendants who were not dismissed even if some of the 

Defendants were dismissed. Id.

After reviewing objections by both parties to the magistrate’s report and recommendation, the district court 

adopted the findings and conclusions of the magistrate 

judge as the findings and conclusions of the court. Decision, 

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4 ANDRA GROUP, LP v. VICTORIA'S SECRET STORES, LLC

2020 WL 1465894 at *1. The district court dismissed the 

Non-Store Defendants without prejudice for improper 

venue on March 26, 2020. In a departure from its earlier 

statement that it would proceed against any Defendants 

who were not dismissed, Andra voluntarily dismissed the 

last remaining Defendant, Stores, and the district court 

subsequently dismissed all remaining claims without prejudice on May 15, 2020. Andra timely filed notice of appeal 

of the dismissal of the Non-Store Defendants for improper 

venue.

II

“We review de novo the question of proper venue under 

28 U.S.C. § 1400(b).” Westech Aerosol Corp. v. 3M Co., 

927 F.3d 1378, 1381–82 (Fed. Cir. 2019). “[T]he plaintiff 

has the burden of establishing proper venue under 

28 U.S.C. § 1400(b).” Id.

28 U.S.C. § 1400(b) provides that “[a]ny civil action 

for patent infringement may be brought in the judicial district where the defendant resides, or 

where the defendant has committed acts of infringement and has a regular and established place 

of business.” A “domestic corporation ‘resides’ only 

in its State of incorporation for purposes of the patent venue statute.” TC Heartland LLC v. Kraft 

Foods Grp. Brands LLC, 137 S. Ct. 1514, 1517 

(2017). 

Because each Defendant is incorporated in Delaware, 

no defendant “resides” in Texas for the purpose of patent 

venue. Thus, to establish venue in this case, Andra must 

show that each Defendant committed acts of infringement 

and maintains a regular and established place of business 

in the Eastern District of Texas. 

To show that a defendant has a regular and established 

place of business, there are three requirements: “(1) there 

must be a physical place in the district; (2) it must be a 

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ANDRA GROUP, LP v. VICTORIA'S SECRET STORES, LLC 5

regular and established place of business; and (3) it must 

be the place of the defendant.” In re Cray Inc., 871 F.3d 

1355, 1360 (Fed. Cir. 2017).

As we stated in Cray, “[t]he Supreme Court has . . . instructed that ‘[t]he requirement of venue is specific and unambiguous; it is not one of those vague principles which, in 

the interests of some overriding policy, is to be given a liberal construction.’” Id. at 1361 (second alteration in original) (quoting Schnell v. Peter Eckrich & Sons, Inc., 365 U.S. 

260, 264 (1961)); see also In re Google LLC, 949 F.3d 1338, 

1346 (Fed. Cir. 2020) (“[T]he Supreme Court has cautioned 

against a broad reading of the venue statute.”).

The parties do not dispute that Stores operates retail 

locations in the District, and whether venue is proper as to 

Stores is not at issue in this appeal. The question is 

whether these Stores locations can be considered “a regular 

and established place of business” of the Non-Store Defendants. In re Cray, 871 F.3d at 1360. Andra argues that 

Stores locations are “a regular and established place of

business” of the Non-Store Defendants because Stores employees are agents of the Non-Store Defendants, or, alternatively, because the Non-Store Defendants have ratified 

Stores locations as their places of business. We address 

each argument in turn.

A 

 “[A] ‘regular and established place of business’ requires the regular, physical presence of an employee or 

other agent of the defendant conducting the defendant’s 

business at the alleged ‘place of business.’” In re Google, 

949 F.3d at 1345. Because there is no dispute that the NonStore Defendants lack employees in the District, Andra argues that Stores employees are agents of LBI, Direct, and 

Brand. Appellant’s Br. 13–14.

“Agency is the fiduciary relationship that arises 

when one person (a ‘principal’) manifests assent to 

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6 ANDRA GROUP, LP v. VICTORIA'S SECRET STORES, LLC

another person (an ‘agent’) that the agent shall act 

on the principal’s behalf and subject to the principal's control, and the agent manifests assent or otherwise consents so to act.” Restatement (Third) of 

Agency § 1.01 (Am. L. Inst. 2006). “The essential 

elements of agency are (1) the principal’s ‘right to 

direct or control’ the agent’s actions, (2) ‘the manifestation of consent by [the principal] to [the agent] 

that the [agent] shall act on his behalf,’ and (3) the 

‘consent by the [agent] to act.’” In re Google, 949 

F.3d at 1345 (alterations in original) (quoting 

Meyer v. Holley, 53 U.S. 280, 286 (2003).

Andra argues that LBI “controls store location workers 

by dictating store operations, hiring, and conduct.” Appellant’s Br. 16. Andra points to various public filings by LBI 

that speak in broad terms about real estate holdings and 

investments, contends that LBI controls the hiring and firing of employees, and argues that because LBI requires 

Stores associates to sign and follow LBI’s Code of Conduct, 

this indicates control over the employees. Andra argues 

that Direct “controls store location workers by dictating 

their handling of returns of merchandise purchased on the 

[Victoria’s Secret] website.” Id. at 18. Finally, Andra argues that Stores employees are agents of Brand because 

Brand “‘closely controls the distribution and sales of its 

products’ exclusively available through store locations and 

the [w]ebsite.” Id. at 19 (quoting J.A. 799–801 ¶¶ 11, 13, 

15–16). Andra also contends that Brand’s control over the 

Victoria’s Secret website “strengthens the agency relationship with [] Brand.” Id. at 19–20.

We considered a similar agency question in In re

Google. There, a plaintiff sued Google for patent infringement in the Eastern District of Texas, alleging that venue 

was proper based on the presence of several Google Global 

Cache servers in the District. In re Google, 949 F.3d at

1340. Google did not own the datacenters where the servers 

were hosted but contracted with two internet service 

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ANDRA GROUP, LP v. VICTORIA'S SECRET STORES, LLC 7

providers (ISPs) in the district to host the servers. Id. The 

contracts included several limitations including: restricting “the ISPs’ ability to relocate the servers without 

Google’s permission,” limiting unauthorized access to the 

space used by Google’s servers, requiring the ISPs to provide “installation services,” forbidding the ISPs from accessing, using, or disposing of the servers without Google’s 

permission, and requiring the ISPs to provide “remote assistance services” involving basic maintenance activities 

performed on the servers by the ISP’s on-site technician, if 

requested by Google. Id. at 1340–41. 

The relevant inquiry was “whether the ISPs [were] acting as Google’s agent.” Id. at 1345. We held that although 

the installation of the servers and provision of maintenance may suggest an agency relationship, the installation 

activity was a “one-time event for each server” that did not 

constitute the conduct of a “regular and established” business, and “SIT ha[d] not established that the ISPs performing the specified maintenance functions [were] conducting 

Google’s business within the meaning of the statute.” Id.

at 1346. 

Here, as in Google, none of Andra’s arguments are sufficient to show that Stores employees are agents of the 

Non-Store Defendants. None of the public filings cited by 

Andra demonstrate LBI’s control, because they are documents covering all of LBI’s brands. The documents’ use of 

“we” does not convey that “we” means LBI specifically, but 

that “we” could include the individual subsidiary brands, 

like Stores. See J.A. 452, 846. Andra’s contention that LBI 

controls the hiring and firing of store employees is directly 

contradicted by the testimony of the store manager for the 

Plano, Texas store, Lisa Barcelona, who stated during her 

deposition that she, a Stores employee, interviews associates and makes offers of employment. J.A. 642–43. She also 

testified that she decides whether to fire employees and 

that she does not need any approval before doing so, and 

that it is she who holds Stores employees at her store 

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8 ANDRA GROUP, LP v. VICTORIA'S SECRET STORES, LLC

accountable for following the Code of Conduct, not LBI.

Thus, none of the facts alleged by Andra are sufficient to 

prove that Stores employees are agents of LBI, because LBI 

does not have “the right to direct or control” Stores employees, an essential element of an agency relationship. In re 

Google, 949 F.3d at 1345.

Additionally, while Stores locations accepting returns 

of Direct merchandise purchased on the website is a service 

that may benefit Direct, Andra has not shown that Direct 

controls this process. This one discrete task is analogous to

the ISPs’ installation and maintenance of the servers in 

Google, which we found insufficient to establish an agency 

relationship. Id. at 1346. Finally, Brand’s close control of 

its products and the website does not equate to “the right 

to direct or control” employees at the physical Stores locations in the District. Id. at 1345.

For the above reasons, we agree with the district court 

that Andra has not established that any of the Non-Store 

Defendants exercise the degree of control over Stores employees required to find an agency relationship.

B 

Andra’s second venue theory is that the Non-Store Defendants ratified Stores locations as their own places of 

business such that Non-Store Defendants may be said to 

maintain a regular and established place of business in the 

District. 

A threshold inquiry when determining whether the 

place of business of one company can be imputed to another, related company is whether they have maintained 

corporate separateness. If corporate separateness has not 

been maintained, the place of business of one corporation 

may be imputed to the other for venue purposes. But where 

related companies have maintained corporate separateness, the place of business of one corporation is not imputed 

to the other for venue purposes. See Cannon Mfg. Co. v. 

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ANDRA GROUP, LP v. VICTORIA'S SECRET STORES, LLC 9

Cudahy Packing Co., 267 U.S. 333, 334–35 (1925); 14D 

Charles Alan Wright & Arthur R. Miller, Federal Practice 

and Procedure § 3823 & nn.25–26 (4th ed.). 

Andra does not argue that the Defendants have not

maintained corporate separateness. Andra contends that 

each of the Non-Store Defendants has ratified the retail 

stores as its own based on the criteria outlined in In re 

Cray, including “whether the defendant owns or leases the 

place, or exercises other attributes of possession or control 

over the place,” “the storing of materials at a place in the 

district so that they can be distributed or sold from that 

place,” and the “defendant’s representations that it has a 

place of business in the district.” 871 F.3d at 1363. 

Andra argues (1) that LBI has ratified store locations 

through its control over store operations and by holding out 

store locations as its own; (2) that Direct has ratified store 

locations by allowing merchandise purchased online to be 

returned in stores and by directing customers to store locations using the “Find a Store” feature; and (3) that Brand 

has ratified store locations by distributing and selling its 

merchandise from Store locations and because it is listed 

as the registrant for the Victoria’s Secret website. 

But “the mere fact that a defendant has advertised that 

it has a place of business or has even set up an office is not 

sufficient; the defendant must actually engage in business

from that location.” In re Cray, 871 F.3d at 1364 (emphasis 

added). Andra has not shown that the Non-Store Defendants actually engage in business at Stores locations. Andra 

asserts that the Non-Store Defendants maintain a “unified 

business model” with Stores, asserting many of the same 

facts it set forth in support of its agency theory, but the fact 

that the entities work together in some aspects, as discussed above, is insufficient to show ratification. See In re 

ZTE(USA) Inc., 890 F.3d 1008, 1015 (Fed. Cir. 2018) (holding that a contractual relationship between two entities 

“does not necessarily make [the first company’s] call center 

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10 ANDRA GROUP, LP v. VICTORIA'S SECRET STORES, LLC

‘a regular and established place of business’ of [the second 

company] in the [district]”). 

Several additional factors weigh against a finding of 

ratification here. The Non-Store defendants do not own or 

lease Stores locations; Stores leases and performs all operations at the retail locations. Decision, 2020 WL 1465894 

at *5. The Victoria’s Secret website’s “Find a Store” feature 

points consumers to Stores locations, not Non-Store Defendants locations. J.A. 829. The Non-Store Defendants do 

not display their corporate names in the retail locations. 

Decision, 2020 WL 1465894 at *5. Non-Store Defendants 

carry out different business functions than Stores. Id. And 

the companies’ shared use of “Victoria’s Secret” in their 

name does not detract from the separateness of their businesses. Giving “reasoned consideration to all relevant factors or attributes of the relationship” between Stores and 

Non-Store Defendants, Andra has not met its burden to 

show that Non-Store Defendants have ratified Stores locations as their own places of business such that Non-Store 

Defendants may be said to maintain a regular and established place of business in the District.

III

All three Cray factors must be met for venue to be 

proper against a defendant. The second Cray factor, a “‘regular and established place of business’ requires the regular, physical presence of an employee or other agent of the 

defendant conducting the defendant’s business at the alleged ‘place of business.’” In re Google, 949 F.3d at 1345. 

Because Andra has not demonstrated that LBI, Brand, or 

Direct has “the right to direct or control” the actions of 

Store employees, id. at 1346, it has not shown the “regular, 

physical presence of an employee or other agent” of LBI, 

Brand, or Direct in the District. The Defendants have also

maintained corporate formalities and Andra has not shown 

that Non-Store Defendants ratified Stores locations in the 

District as their own places of business. We therefore 

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affirm the district court’s decision that venue was not

proper in the District as to the Non-Store Defendants.

AFFIRMED

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