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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ENERGY INTELLIGENCE GROUP, INC. and 

ENERGY INTELLIGENCE GROUP (UK) 

LIMITED, 

Plaintiffs,

v.

EXELON GENERATION CO.,

Defendant.

Civil Action No. 20-cv-03983 (JBG)(HKM)

JOINT RULE 26(f) REPORT AND PROPOSED SCHEDULE

Plaintiffs Energy Intelligence Group, Inc. and Energy Intelligence Group (UK) Limited 

(“Plaintiffs”) and Defendant Exelon Generation Company, LLC. (“Exelon”) (“Plaintiffs” and 

“Defendant” hereafter, collectively, the “Parties”) respectfully submit this joint status report and 

proposed schedule pursuant to Fed. R. Civ. P. 26(f)(3) and the Standing Orders in Section 1 of 

this Court’s Case Management Packet.

I. PRIOR PROCEEDINGS AND CURRENT CASE STATUS

Plaintiffs commenced this action on July 8, 2020. (Dkt. No. 1.) On October 12, 2020, 

Defendant timely filed a Motion to Dismiss Plaintiffs’ Complaint, on extension. On April 21, 

2021, the Court entered an Order denying Defendant’s Motion to Dismiss (Dkt. No. 36) and set 

the deadline to submit an initial status report to May 12, 2021. By request and agreement of 

the parties, the Court extended that deadline to May 28, 2021. (Dkt. No. 42). Defendant filed its 

Answer, Affirmative Defenses, and Counterclaims on May 19, 2021. (Dkt. No. 44). 

There are no unresolved motions at this time.

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Plaintiffs are represented by Robert L. Powley, James M. Gibson and Stephen Ankrom

of Powley & Gibson, P.C and Binal J. Patel and Katherine Laatsch Fink of Banner & Witcoff, 

Ltd. Defendant is represented by Sondra A. Hemeryck, Louis A. Klapp, Rachel Sifuentes, and

Rodney Perry of Riley Safer Holmes & Cancila LLP.

II. BASIS FOR JURISDICTION

This Court has subject matter jurisdiction over EIG’s copyright claims pursuant to 28 

U.S.C. §§ 1331 and 1338(a).

Plaintiffs allege that this Court has personal jurisdiction over Exelon because Exelon is 

present and doing business in the State of Illinois and in this District and many of the acts of 

copyright infringement alleged in Plaintiffs’ Complaint took place in this District. 

Plaintiffs allege that venue is proper in this District pursuant to 28 U.S.C. §§ 1391(b) 

and 1400(a).

Defendant has not challenged the Court’s subject matter jurisdiction, personal 

jurisdiction or venue, and is now itself a counterclaim plaintiff.

III. NATURE OF THE CASE

a. PLAINTIFFS’ CLAIMS

This is a case for copyright infringement under the Copyright Act, 17 U.S.C. § 101, et 

seq. EIG and its predecessors-in-interest have published newsletters and other publications for 

the global energy industry for almost seventy years. Exelon has subscribed to EIG’s copyrighted 

weekly publication Nuclear Intelligence Weekly (“NIW”) since at least as early as November 

2011 through the filing of Plaintiffs’ Complaint on July 8, 2020 pursuant to annual subscription

agreements providing for two of its employees to each receive a single-copy of NIW and the 

articles therein by email delivery. EIG alleges that Exelon has infringed on EIG’s exclusive 

rights under 17 U.S.C. § 106 by making and distributing copies of NIW beyond what was 

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permitted under its subscription agreements. EIG alleges that Exelon infringed EIG’s copyrights 

by receiving, copying and distributing electronic copies of NIW without license or permission to 

do so. EIG further alleges that Defendants’ infringement of EIG’s copyrights was willful. 

EIG emphatically disagrees with Defendant’s characterization of EIG below and in 

Defendant’s earlier court filings to date which are not directed to the facts or the merits of the 

case but instead are merely attempts to smear and damage EIG’s reputation. Defendant is a 

corporation who had the resources to easily purchase enough subscriptions of NIW to meet its 

needs but chose instead to infringe EIG’s copyrights by stealing. Despite Defendant’s efforts to 

trivialize matters, copyright infringement is a significant problem for the U.S. economy in 

general and digital publishers like EIG, and the taking of intellectual property is no different than 

the misappropriation of any asset. As in the present matter, Defendant serially infringed EIG’s 

copyrighted works hoping to hide its infringement behind its computer firewalls hidden from all 

public detection and EIG’s sales personnel. Defendant, in fact, continued year after year to 

maintain it only needed one copy of the subject publication. Further, EIG is certain that 

Defendant’s copyright infringement will be in direct conflict with Defendant’s own corporate 

policies, which likely prohibit copyright infringement. Additionally, Defendant’s counterclaims 

and affirmative defenses, including copyright misuse, unclean hands, fraud, and allegations 

regarding “entrapment” of subscribers, have been litigated in previous cases, including at the 

Circuit Court level, and have been found to have no legal or factual merit. Defendant should be 

well aware of these previous rulings, and yet, Defendant has elected to revisit these meritless 

allegations. Future filings and discovery will show that Defendant’s claims will similarly be 

found to have no merit here and will be dismissed at the appropriate time.

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b. DEFENDANT’S CLAIMS

Defendant denies that it is liable for copyright infringement, asserts affirmative 

defenses, and asserts the following counterclaims against Plaintiffs: (1) violation of the Illinois 

Consumer Fraud and Deceptive Business Practices Act, 815 ILCS § 505/1, et seq.; (2) fraud 

under Illinois common law; and (3) fraud in the inducement under Illinois common law. 

Defendant alleges that, when interacting with Defendant’s employees, Plaintiffs concealed, 

suppressed, and omitted the fact that they entrap their customers using a systematic plan to 

manufacture copyright infringement claims for the purpose of extorting windfall settlements 

from their customers. Had Defendant been aware of Plaintiffs’ true intent, unsavory business 

practices, and desire to entrap and extort it, Defendant would not have subscribed to NIW and 

would not have provided information to Plaintiffs’ editors and reporters, which Plaintiffs used

in furtherance of their publications. As a result of Plaintiffs’ misconduct, Defendant has 

suffered actual damages, and Defendant further seeks an award of punitive damages and 

disgorgement of Plaintiffs’ profits obtained as a result of their fraudulent and unfair actions, 

with interest. 

IV. DISCOVERY 

Counsel for the Parties have met and conferred about preliminary discovery topics and

ESI generally, as outlined below, and they plan to continue such discussions, if necessary, as 

the case progresses.

1. Initial Disclosures

The Parties participated in a Rule 26(f) telephone conference on April 28, 2021. 

Participants in the telephone conference were James M. Gibson and Stephen M. Ankrom (for 

Plaintiffs) and Sondra A. Hemeryck and Rachel F. Sifuentes (for Defendant). The parties have 

exchanged Initial Disclosures.

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2. Protective Order

The Parties have agreed to submit a proposed Protective Order to the Court by the date 

indicated in Exhibit A. 

3. Limitations on Discovery

At this time, the Parties propose no changes to the provisions of FRCPs 30, 33 or 34. 

4. ESI - Production Format

The Parties have discussed, in general, the need for agreed parameters for the format of

production for ESI, and they will work together to agree on such parameters prior to the 

exchange of electronic discovery in this case.

5. Privilege Logs

The Parties agree to produce a Privilege Log for all documents they are claiming 

privilege for up to the date of the filing of the Complaint.

6. Case Schedule

The Parties propose the case schedule annexed hereto as Exhibit A. 

V. SETTLEMENT

In May 2020, prior to the filing of the Complaint, Plaintiffs wrote to Defendant in an 

effort to engage in settlement negotiations prior to commencing litigation if Defendant would 

execute an agreement to toll any limitations period. Plaintiffs sought information regarding 

Defendant’s use of Plaintiffs’ publications so that the parties could make informed decisions as 

part of settlement negotiations. Defendant did not respond to Plaintiffs’ correspondence. 

During the April 28, 2021, Rule 26(f) conference, the parties discussed the possibility of 

engaging in a settlement conference or mediation prior to commencing formal discovery. The 

parties could not agree on a mutually acceptable scope of informal discovery. 

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The parties disagree as to the scope of potential damages based on the positions 

regarding Plaintiffs’ discovery of Defendant’s alleged infringement. In addition, Plaintiffs 

believe that Defendant, by presenting its affirmative defenses and counterclaims, is not 

addressing settlement in good faith. Plaintiffs further assert that, because all of the infringing 

activity alleged in the Complaint occurred on Defendant’s secure server and is solely in 

Defendant’s possession, Plaintiffs are not in a position to discuss settlement at this time. 

However, Plaintiffs remain open to mediation and settlement discussions once Defendant 

discloses sufficient discovery for Plaintiffs to assess the scope and duration of the alleged 

infringement; only then will settlement discussions possibly be beneficial.

Defendant remains open to a coordinated disclosure of information and subsequent 

mediation.

The parties agree to work cooperatively to focus their early discovery efforts on seeking 

and producing information most relevant to settlement. The parties will jointly request a 

settlement conference or mediation if they believe it will help resolve this litigation.

VI. CONSENT TO PROCEED BEFORE A MAGISTRATE JUDGE

The Parties do not consent to proceed before a Magistrate Judge.

VII.ESTIMATED LENGTH OF TRIAL

The Parties currently estimate the length of trial to be 4-5 days.

Respectfully submitted,

By: /s/Robert L. Powley

Robert L. Powley (Attorney-In-Charge)

rlpowley@powleygibson.com

(admitted pro hac vice)

James M. Gibson 

jmgibson@powleygibson.com

(admitted pro hac vice)

Stephen M. Ankrom

smankrom@powleygibson.com

/s/ Louis A. Klapp

Sondra A. Hemeryck 

Louis A. Klapp

Rachel F. Sifuentes

Rodney Perry

RILEY SAFER HOLMES & CANCILA LLP

70 W. Madison, Suite 2900

Chicago, Illinois 60602

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(admitted pro hac vice)

POWLEY & GIBSON, P.C.

60 Hudson Street, Suite 2203

New York, NY 10013

Telephone: (212) 226-5054

Facsimile: (212) 226-5085

and

Binal J. Patel (6237843) 

bpatel@bannerwitcoff.com 

Katherine Laatsch Fink (6292806)

kfink@bannerwitcoff.com

BANNER & WITCOFF, LTD.

71 South Wacker Drive

Suite 3600

Chicago, IL 60606

Tel: (312) 463-5000

Fax: (312) 463-5001

Attorneys for Plaintiffs ENERGY 

INTELLIGENCE GROUP, INC. and 

ENERGY INTELLIGENCE GROUP (UK) 

LIMITED

Phone: (312) 471-8700

Fax: (312) 471-8701

shemeryck@rshc-law.com

rsifuentes@rshc-law.com

rperry@rshc-law.com

Attorneys for Defendant

EXELON GENERATION COMPANY, LLC

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EXHIBIT A

EVENT DATE

Submission of Proposed Stipulated Protective Order Wednesday, June 16, 2021

Last Date to Stipulate or File a Motion for Leave to 

Amend Pleadings or to Add Parties 

Monday, October 25, 2021

Close of Fact Discovery Friday, April 15, 2022

Opening Expert Reports 

[issues on which party carries the burden of proof]

Monday, May 16, 2022

Responsive Expert Reports Wednesday, June 14, 2022

Close of Expert Discovery Friday, July 22, 2022

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