IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Energy Intelligence Group, Inc., and )

Energy Intelligence Group (UK) Ltd., )

)

Plaintiffs, )

) Case No.: 20-cv-3983

v. )

) Honorable Joan B. Gottschall

Exelon Generation Co., )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

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

have filed a one-count complaint for copyright infringement, ECF No. 1, against Exelon 

Generation Co. (“Exelon”). The complaint alleges that Exelon employees forwarded emails to 

which plaintiffs’ copyrighted trade publications were attached. See Compl. ¶¶ 21–34, 42-46, 

ECF No. 1. Plaintiffs infer copying from data showing that many different users using unique 

devices accessed some of these emails on the same day. See Compl. ¶¶ 35–39. 

Exelon moves to dismiss the complaint under Rule 12(b)(6) of the Federal Rules of Civil 

Procedure for failure to state a claim upon which relief can be granted, as partially barred by the 

statute of limitations, and because an attachment to the complaint allegedly contradicts the 

complaint’s allegations. ECF No. 27. For the reasons that follow, the court denies the motion, 

although whether the complaint plausibly pleads copying of plaintiffs’ copyrighted works 

presents a close question.

I. Summary of the Complaint

Because this case comes before the court on a Rule 12(b)(6) motion, the court 

summarizes the complaint’s well-pleaded facts in the light most favorable to plaintiffs. See

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Taha v. Int'l Brotherhood of Teamsters, Local 781, 947 F.3d 464, 469 (7th Cir. 2020) (citing 

Yeftich v. Navistar, Inc., 722 F.3d 911, 915 (7th Cir. 2013)). Plaintiffs produce several 

newsletters and other trade publications reporting on the global energy industry, including the 

publication at issue here, Nuclear Intelligence Weekly (“NIW”), which plaintiffs have produced 

since 2011. See Compl. ¶¶ 8–14. Plaintiffs offer their customers various subscription options. 

Compl. ¶ 16. “Subscribers typically obtain NIW and Plaintiffs’ other publications by email 

and/or from Plaintiffs’ website, which permits password-protected access to archived and/or 

current issues, pursuant to a subscription or license agreement.” Id. Individual articles and 

newsletter issues can also be purchased from plaintiffs’ website. See Compl. ¶¶ 16–18.

“From at least as early as November 2011 through the present, Defendant has maintained 

a subscription for two of its employees to each receive a single-copy [sic] of NIW and the 

articles therein by email delivery.” Compl. ¶ 29. One of the recipients of NIW at Exelon has 

been Kenneth Peterson (“Peterson”), vice president, Nuclear Fuels. Compl. ¶¶ 30–31. Plaintiffs 

attached a sales order for NIW dated November 19, 2018, invoice, terms and conditions, and 

receipt for payment (collectively, the “subscription agreement”) to the complaint as exhibit D. 

See Compl. ¶¶ 32-34; Compl. Ex. D, ECF No. 1-4. As discussed below, the parties disagree 

about the scope and meaning of the subscription agreement. 

Also attached to the complaint is a sample email transmitting an issue of NIW to 

Peterson. Compl. Ex. C, ECF No. 1-3. The body of the email contains a short summary of the 

headlines of the NIW issue. See id. at 2. A notation on the email message states that a Portable

Document Format (“PDF”) file containing the NIW issue is attached. See id. at 2; see also

Compl. Ex. A, ECF No. 1-1 (sample issue of NIW).

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Plaintiffs base their claim of infringement on an analysis of data gathered by the thirdparty service they use to deliver NIW to defendant. Compl. ¶ 35. According to that data, 

“Although neither Plaintiffs nor the Delivery Service have ever accessed Defendant’s servers or 

computer systems, various employees of Defendant have downloaded certain information and 

images contained in the cover email provided with each issue of NIW.” Id. The data show “the 

emails delivering NIW were opened multiple times each day, using multiple unique devices.” 

Compl. ¶ 36. For instance, plaintiffs plead, on information and belief, that the email delivering 

the NIW issue dated March 15, 2019, was opened “approximately 102 times on 35 unique 

devices.” Compl. ¶ 37. Furthermore, “[b]etween July 20, 2018 and October 18, 2019, the 

approximately 65 emails delivering NIW to Kenneth Petersen during that period were opened 

880 times on 159 unique devices.” Compl. ¶ 38 (alleged on information and belief). Based on 

these data, plaintiffs plead that Peterson has been reproducing and distributing, i.e., forwarding, 

issues of NIW. See Compl. ¶¶ 36–38.

II. Failure to State a Claim

Exelon’s motion to dismiss tests the complaint’s sufficiency, not the merits of the case. 

See Skinner v. Switzer, 562 U.S. 521, 529–30 (2011). Defendant argues that the complaint does 

not plead a plausible copyright infringement claim under Ashcroft v. Iqbal, 556 U.S. 662 (2009),

and Bell Atlantic Corporation v. Twombly, 550 U.S. 544 (2007). Exelon opens its motion to 

dismiss not with a legal argument but with an attack on plaintiffs’ purported business model. See

Mem. Supp. Mot. to Dismiss 2-3, ECF No. 27-1. Exelon accuses plaintiffs of intellectual 

property trolling, i.e., maintaining a business model centered more on litigation than on creating 

works that advance science and the useful arts. See U.S. Const., art. I, § 8, cl. 8. The 

Seventh Circuit discussed the systemic problem of intellectual property trolling in the 

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background of its opinion in Design Basics, LLC v. Lexington Homes, Inc., 858 F.3d 1093, 

1097–98 (7th Cir. 2017). While the systemic increase of intellectual property trolling has been 

acknowledged by courts, scholars, and the media, see id., that does not mean that the legal 

standards governing any particular case change because plaintiff is accused of trolling. See id.

at 1099–1108 (applying ordinary summary judgment principles). To the extent defendant argues

for a heightened pleading standard because it claims that the plaintiffs are trolling, the 

Seventh Circuit expressly rejected a heightened pleading standard for copyright infringement 

claims in Mid America Title Company v. Kirk, 991 F.2d 417, 421–22 (7th Cir. 1993). The court 

therefore tests plaintiff’s complaint against the same standards as it would any complaint and 

makes no finding on defendant’s accusations of intellectual property trolling.

Rule 8(a)(2) of the Federal Rules of Civil Procedure requires every complaint to contain 

“a short and plain statement of the claim showing that the pleader is entitled to relief.” To satisfy 

this standard, the “complaint must contain sufficient factual matter, accepted as true, to ‘state a 

claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. 

at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the 

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 

Id. (citing Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely 

consistent with’ a defendant's liability, it ‘stops short of the line between possibility and 

plausibility of “entitlement to relief.”’” Id. (quoting Twombly, 550 U.S. at 557). “In assessing 

the complaint’s sufficiency, the court accepts all well-pleaded facts in the complaint, but not 

legal conclusions, as true and draws reasonable inferences in the plaintiff’s favor. Id. (citing 

Twombly, 550 U.S. at 555). To state a claim for copyright infringement based on unauthorized 

copying or distribution, plaintiffs must plausibly allege two elements: “(1) ownership of a valid 

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copyright, and (2) copying of constituent elements of the work that are original.” Feist Publ’ns, 

Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991); Design Basics, LLC v. Lexington Homes, 

Inc., 858 F.3d 1093, 1099 (7th Cir. 2017) (quoting JCW Invs., Inc. v. Novelty, Inc., 482 F.3d 910, 

914 (7th Cir. 2007)).

A. Ownership of a Valid Copyright

Exelon argues that the complaint does not adequately identify any specific work that was 

allegedly infringed. Mem. Supp. Mot. to Dismiss 7–8. Courts have implied a requirement that 

the complaint identify the allegedly infringed work from the elements of copyright infringement. 

See, e.g., Flava Works, Inc. v. Clavio, 2012 WL 2459146, at *2 (N.D. Ill. June 27, 2012). The 

complaint must identify the allegedly infringed work to the extent necessary to plead the two 

elements of copyright infringement. See id. 

Defendant takes issue with paragraph 20 of the complaint here, which makes a laundry 

list of over 100 publications plaintiffs have registered with the copyright office. See Compl. 

¶ 20. Including such a list satisfies the first element of copyright infringement by alleging 

ownership. But a list of copyrighted works by itself leaves to speculation which, if any, works 

the defendant allegedly copied. See Flava Works, Inc. v. Gunter, 2018 WL 620035, at *3 (N.D. 

Ill. Jan. 30, 2018); Clavio, 2012 WL 2459146, at *2. 

Other paragraphs of the complaint in the case at bar plausibly narrow the universe of 

works defendant allegedly copied. Plaintiffs allege that Exelon has subscribed to NIW 

since 2011 and that Peterson and one other individual have received NIW issues by email. See

Compl. ¶¶ 29–31. The complaint then alleges that Peterson has copied and distributed issues of 

NIW since Exelon subscribed in 2011 and cites two specific instances of alleged copying

occurring in 2018 and 2019. See Compl. ¶¶ 35–39. 

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Defendant cites no authority to support its argument that plaintiffs must be more specific, 

such as by identifying the exact dates of each and every issue of NIW alleged to have been 

copied. See Mem. Supp. Mot. to Dismiss 9-10. That level of specificity would go beyond the 

short and plain statement required by Rule 8(a)(2) by requiring plaintiff to plead the details of the 

third-party email delivery data summarized in paragraphs 36–39 of the complaint. The fair 

notice pleading standard does not require, and in fact eschews, such “elaborate factual 

recitations.” Sanjuan v. Am. Bd. of Psychiatry & Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 

1994) (citation omitted). The complaint must give “fair notice of what the . . . claim is and the 

grounds upon which it rests.” Twombly, 550 U.S. at 555 (citation omitted). As another court 

stated when considering a motion to dismiss a complaint filed by these plaintiffs, “By providing 

a start and end date to the period of alleged infringement, Plaintiffs have stated ‘enough factual 

allegations to provide notice of the period of time during which infringement occurred.’” Energy 

Intel. Grp., Inc. v. Jefferies, LLC, 101 F. Supp. 3d 332, 340 (S.D.N.Y. 2015) (quoting

LivePerson, Inc. v. 24/7 Customer, Inc., 83 F.Supp.3d 501, 508 (S.D.N.Y. 2015)). 

B. Copying of Original Elements

Exelon also contends that the complaint fails the plausibility test because it “does not 

allege any specific act of copying, nor any information such as the who, how, and when any 

specific work was improperly copied.” Mem. Supp. Mot. to Dismiss 8. Defendant’s insistence 

on pleading the who, how, and when of copyright infringement resembles the heightened 

pleading standard for claims sounding in fraud or mistake under Rule 9(b) of the Federal Rules 

of Civil Procedure. The Seventh Circuit has stated that it “cannot accept the argument that 

plaintiffs in cases such as this one must be held to a particularity requirement akin to 

[Rule] 9(b).” Mid Am. Title Co. v. Kirk, 991 F.2d 417, 421–22 (7th Cir. 1993). The complaint 

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must state a plausible claim that defendant copied or redistributed NIW without authorization 

under Rule 8(a)(2)’s less burdensome standard. Id.

To be sure, plaintiffs rely on a chain of inferences from their email delivery data to plead 

that Exelon has copied and distributed issues of NIW. Plaintiffs point to data showing that NIW 

cover emails were opened by multiple users and on multiple devices. See Compl. ¶¶ 36-38. 

Viewed favorably to plaintiffs, the fact that these emails were opened multiple times per day on 

hundreds of unique devices is consistent with Peterson’s forwarding the emails, though that is by 

no means the only possible explanation. See id. And if Peterson forwarded the NIW cover 

emails to colleagues, plaintiffs assert that it is at least plausible that he copied and distributed the 

attached issue of NIW.1 See id. ¶¶ 42, 44. 

The parties cite no case in which a plaintiff used data tracking when and on what devices 

an email was opened to support a copyright infringement claim. Determining whether a 

complaint states a plausible claim is “a context-specific task that requires the reviewing court to 

draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679 (citation omitted). 

The plaintiff’s need for discovery is a relevant consideration when determining whether a 

complaint gives fair notice of a claim. See Leaf, Inc. v. Burdeen, 1996 WL 89070, at *3 (N.D. 

Ill. Feb. 28, 1996) (denying motion to dismiss copyright infringement claim). The plausibility 

standard “simply calls for enough facts to raise a reasonable expectation that discovery will 

reveal evidence” supporting the plaintiff's allegations.” Brooks v. Ross, 578 F.3d 574, 581

 

1 The parties appear to assume that forwarding an email with a protected work attached (the court infers favorably to 

plaintiffs that Peterson included attachments) constitutes an act of copyright infringement. The court does not 

explore this complex issue further. See generally Kenneth R. L. Parker, Gray Works: How the Failure of Copyright 

Law to Keep Pace with Technological Advancement in the Digital Age Has Created A Class of Works Whose 

Protection Is Uncertain . . . and What Can Be Done About It, 21 J. Intell. Prop. L. 265, 272–78 (2014). 

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(7th Cir. 2009) (citing Twombly, 550 U.S. at 556); see also Swanson v. Citibank, N.A., 614 F.3d 

400, 405 (7th Cir. 2010).

It is thus relevant, but by no means dispositive, that plaintiffs argue that without 

discovery they cannot plead more facts supporting their copying claim because Exelon controls 

the email servers on which the needed information resides. Exelon does not disagree; it argues 

that by requesting discovery plaintiffs have proven that they should not be given leave to amend 

their complaint because they cannot plead facts needed to state a claim. Reply 2, ECF No. 30. 

But this argument begs the question of whether the complaint pleads a plausible claim in the first 

place.

Given that defendant controls access to the information needed to plead with greater 

specificity, the complaint’s allegations “nudge” plaintiff’s infringement claims “across the line 

from conceivable to plausible,” although this is a close question. Iqbal, 556 U.S. at 680 (citing 

Twombly, 550 U.S. at 570). While other inferences are possible, one plausible explanation for 

the data showing NIW cover emails were opened hundreds of times on different devices is that 

Peterson, or someone else, forwarded the emails, and others viewed them and the attached issues 

of NIW. See Compl. ¶¶ 36–39, 42-44. Indeed, defendant does not suggest another explanation, 

and none comes readily to mind. At least one other court has found data showing an unexplained 

access pattern consistent with unauthorized copying and distribution sufficient to raise a 

plausible inference of copyright infringement. See Energy Intel. Grp., Inc. v. Jefferies, LLC, 

101 F. Supp. 3d 332, 340–41 (S.D.N.Y. 2015) (holding that allegations of copying newsletters 

were plausible where same defendant’s employee accessed newsletters from computers on two 

different continents on the same day). Exelon cites no case holding that an inference of copying 

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cannot be drawn from unexplained patterns of email messages being opened on hundreds of 

different devices. Accordingly, the complaint satisfies the strictures of Rule 8(a)(2).

III. Limitations and License

Exelon advances two additional arguments: (1) the three-year statute of limitations for 

copyright infringement, 17 U.S.C. § 507(b), partially bars plaintiffs’ claims; and (2) exhibit D to 

the complaint demonstrates, in effect, that defendant had a license to reproduce and distribute 

issues of NIW internally. Mem. Supp. Mot. to Dismiss 10–13. As plaintiffs observe, both 

arguments–limitations and license–raise an affirmative defense which Exelon bears the burden to 

plead and prove. See Fed. R. Civ. P. 8(c) (listing limitations among affirmative defenses); 

Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663, 670–72 (2014) (limitations); MuhammadAli v. Final Call, Inc., 832 F.3d 755, 761 (7th Cir. 2016) (citing I.A.E., Inc. v. Shaver, 74 F.3d 

768, 775 (7th Cir. 1996)) (other citation omitted) (license). 

A plaintiff need not anticipate an affirmative defense in a complaint and has no duty to 

plead facts negating an affirmative defense. See Allen v. GreatBanc Tr. Co., 835 F.3d 670, 676 

(7th Cir. 2016) (citing Stuart v. Local 727, Int'l Brotherhood of Teamsters, 771 F.3d 1014, 1018 

(7th Cir. 2014). “However, ‘when a plaintiff's complaint nonetheless sets out all of the elements 

of an affirmative defense, dismissal under Rule 12(b)(6) is appropriate.’” NewSpin Sports, 

LLC v. Arrow Elecs., Inc., 910 F.3d 293, 299–300 (7th Cir. 2018) (citing Indep. Tr. Corp. v. 

Stewart Info. Servs. Corp, 665 F.3d 930, 935 (7th Cir. 2012)). This is sometimes referred to as 

pleading oneself out of court. E.g., Cancer Found., Inc. v. Cerberus Cap. Mgmt., LP, 559 F.3d 

671, 675 (7th Cir. 2009). Plaintiffs argue that the complaint does not include all the facts 

necessary to prove Exelon’s limitations and license defenses. The court agrees.

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A. Limitations

For limitation purposes, copyright infringement claims accrue separately. Petrella, 

572 U.S. at 671. “[W]hen a defendant commits successive violations, the statute of limitations 

runs separately from each violation.” Id. The Seventh Circuit has adopted “a discovery rule in 

copyright cases: ‘[T]he copyright statute of limitations starts to run when the plaintiff learns, or 

should as a reasonable person have learned, that the defendant was violating his rights.’” Chi.

Bldg. Design, P.C. v. Mongolian House, Inc., 770 F.3d 610, 614 (7th Cir. 2014) (alteration in 

original) (citing Gaiman v. McFarlane, 360 F.3d 644, 653 (7th Cir. 2004)) (other citation 

omitted); see also id. at 614-15 (holding that Petrella did not change the discovery rule). 

When plaintiffs’ claims accrued does not need to be determined at the Rule 12(b)(6) 

stage. “[I]n light of Petrella, we now know that the right question to ask in copyright cases is 

whether the complaint contains allegations of infringing acts that occurred within the three-year 

look-back period.” Chi. Building Design, 770 F.3d at 616. If the answer is yes, the complaint 

survives a Rule 12(b)(6) motion. Id. The complaint here alleges acts of copying–email 

forwarding by Peterson–in 2018 and 2019 within the three-year limitation period, so plaintiffs 

have not pleaded themselves out of court. See id.; Compl. ¶¶ 36–38. Because it is defendant’s 

burden to plead and prove limitations and the accrual date, no further analysis is required at this 

stage.

B. License

Exelon also argues that the subscription agreement attached to the complaint as exhibit D 

contradicts the complaint’s allegations that Exelon’s use of NIW was limited to two users. 

Compare Compl. ¶ 29 with Compl. Ex. D. As defendant argues, the court can consider exhibit D 

on a Rule 12(b)(6) motion because it is attached to the complaint. See Fed. R. Civ. P. 10(c). 

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“[W]hen the plaintiff relies on a document attached to the complaint and does not deny its 

accuracy, the facts communicated by that document control over allegations to the contrary.” 

Zablocki v. Merchants Credit Guide Co., 968 F.3d 620, 623 (7th Cir. 2020). 

The Copyright Act provides that anyone who violates one of the exclusive rights granted 

by a copyright is an infringer. 17 U.S.C. § 106. The exclusive rights include the rights to copy 

and distribute the work. Id. To establish a license, Exelon must show that plaintiffs either 

authorized it to copy and distribute issues of NIW through a written license or through an express

or implied nonexclusive license.2 See Muhammad-Ali, 832 F.3d at 762; I.A.E., 74 F.3d at 775-

76.

Although its briefing is not entirely clear on this point, Exelon appears to be contending 

that the exemplar subscription agreements attached to the complaint granted Exelon a written 

license to reproduce and redistribute NIW on an unlimited basis. See Mem. Supp. Mot. to 

Dismiss 10–11. Plaintiffs counter, without citing authority, that construction of the subscription 

agreement is a question of fact. Resp. 11, ECF No. 29.

Ordinary rules of contract construction generally apply to copyright license agreements. 

Kennedy v. Nat'l Juv. Det. Ass'n, 187 F.3d 690, 694 (7th Cir. 1999) (citation omitted). Under 

Illinois law,3 which does not vary materially from basic contract law principles in this regard, the 

court must first determine whether a written contract is ambiguous as a matter of law. 

Lewitton v. ITA Software, Inc., 585 F.3d 377, 379 (7th Cir. 2009) (citing Hampton v. Ford Motor 

Co., 561 F.3d 709, 714 (7th Cir. 2009)). If the contract is ambiguous, then the court may look to 

 

2 Exclusive licenses must be granted in writing while nonexclusive licenses may be granted orally or implied from 

conduct. See I.A.E., 74 F.3d at 775; 17 U.S.C. § 204(a). The court does not understand Exelon to be arguing that it 

had an exclusive license.

3 Exelon notes that the subscription agreement includes a choice of law clause in favor of New York law. See

Compl. Ex. D at 4. The parties have not briefed the enforceability of this clause.

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extrinsic evidence to ascertain the parties’ intent. Id. at 380. (citing Camico Mut. Ins. Co. v. 

Citizens Bank, 474 F.3d 989, 993 (7th Cir. 2007)). In short, “[c]onstruing an unambiguous 

contract is a question of law; construing an ambiguous contract is a question of fact.” 

Homeowners Choice, Inc. v. Aon Benfield, Inc., 895 F. Supp. 2d 889, 892 (N.D. Ill. 2012) (citing 

Curia v. Nelson, 587 F.3d 824, 829 (7th Cir. 2009)), aff'd 550 F. App’x 311 (7th Cir. 2013).

To show it has a license, Exelon points to the following sentence in the terms and 

conditions accompanying the subscription agreement: “EIG [Energy Intelligence Group] 

Services may be accessed and/or used solely by the individual(s) expressly named on this invoice 

under the ‘Shipped to’ notation.” Compl. Ex. D at 4. Exelon points out, Mem. Supp. Mot. to 

Dismiss 11, that its corporate name, rather than an individual’s name, appears in the “ship to” 

field. Id. at 3.

The foregoing language of the terms and conditions raises the question: Does authorizing 

a user to “access and/or use” plaintiffs’ services grant permission to reproduce and redistribute 

issues of NIW? Yet Exelon assumes the answer without citing any cases and without analyzing 

principles of contract interpretation. See Mem. Supp. Mot. to Dismiss 10–11. Exelon 

acknowledges that the terms and conditions may be ambiguous, but it takes no position on the 

issue other than to argue that any ambiguity should be resolved in its favor. Id. at 11 n.3. 

Neither side undertakes a meaningful contract interpretation analysis, and it is not the 

court’s role to analyze complex contractual, or any other, questions without the benefit of 

adequately developed briefing. See Kawasaki Kisen Kaisha, Ltd. v. Plano Molding Co., 

782 F.3d 353, 364 (7th Cir. 2015) (holding that legal argument under contract law supported by 

no citation to applicable authority was underdeveloped); Echo, Inc. v. Timberland Machs. & 

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Irrigation, Inc., 661 F.3d 959, 967 (7th Cir. 2011) (holding a three-sentence argument on breach 

of contract claim was underdeveloped and waived the issue). 

The question of whether the terms and conditions are ambiguous is more complicated 

than the briefing suggests. Several other provisions of the terms and conditions appear highly 

relevant. For instance, despite Exelon’s corporate name appearing in the “ship to” field of the 

invoice, the terms and conditions state that “[a]n Authorized User can only be a living individual 

and never a company, organization or any other entity . . . . Each Authorized User is authorized 

to access and use the EIG Services on an individual, per-person basis . . . . Except as expressly 

provided in this Subscription Agreement, nothing contained herein shall be construed as 

conferring any additional license or right under any copyright or any other intellectual property 

right.” Compl. Ex. D at 4. The terms and conditions also specifically state: “No material from 

any part of the EIG Services may be copied, modified, translated, altered, amended, downloaded, 

archived, transmitted, posted, broadcast, transferred, forwarded, assigned, reproduced or in any 

other way used or otherwise disseminated in any form for the benefit of any unauthorized third 

party not subject to a valid and subsisting license agreement.” Id. And the sample email 

message transmitting an issue of NIW attached to the complaint similarly warns the recipient that 

forwarding the email constitutes an intellectual property violation. See Compl. Ex. C at 2. 

Because these and other contract interpretation issues have not been adequately addressed, the 

court cannot conclude that the complaint and the subscription agreement contain all of the facts 

necessary to establish Exelon’s license defense.

IV. Conclusion

For the reasons stated, defendant’s motion to dismiss the complaint is denied. Since 

defendant has raised concerns about overly burdensome discovery, the court will consider any 

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proposals the parties advance regarding the timing and scope of discovery. See Fed. R. Civ. 

P. 26(c) & 26(f).

Dated: April 21, 2021 /s/

Joan B. Gottschall

United States District Judge 

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