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IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
TRINITY INDUSTRIES, INC., and )
)THE TEXAS A&M UNIVERSITY SYSTEM, )
)Plaintiffs, )
) Civil Action No. 2:12-cv-0046vs. )
) JURY TRIAL DEMANDEDJOSHUA HARMAN, )
)Defendant. )
COMPLAINT
Plaintiffs Trinity Industries, Inc. ("Trinity") and The Texas A&M University
System ("Texas A&M") for their Complaint against Defendant Joshua Harman
("Harman"), state as follows:
NATURE OF THE CASE
1. This is an action arising under the trademark laws of the United States, as
well as the laws of Texas governing defamation and business disparagement. Defendant
Harman has published false and malicious statements about highway safety products
designed and tested by Texas A&M and manufactured by Trinity with the intent to
defame and disparage Plaintiffs' products and business reputations. Moreover, Harman
has made unauthorized use of Trinity's registered ET-Plus trademark in furtherance of his
activities that defame and injure Plaintiffs' commercial interests.
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JURISDICTION
2. This Court has jurisdiction over the subject matter of this action pursuant
to 28 U.S.C. §§ 1331 and 1338(a) and 15 U.S.C. § 1221. This Court, alternatively, has
jurisdiction over this action pursuant to 28 U.S.C. § 1332 because the amount in
controversy exceeds $75,000 and each Plaintiff is a resident of Texas or Delaware and the
named Defendant is a resident of Virginia for diversity jurisdiction purposes.
PARTIES AND RELEVANT ENTITIES
3. Plaintiff Trinity is a corporation organized and existing under the laws of
the State of Delaware and conducting business from 2525 Stemmons Freeway, Dallas,
Texas 75207. Trinity's Construction Products Group includes Trinity Highway Products,
LLC, a leading U.S. manufacturer of highway guardrail and end terminals. Trinity
manufactures and sells guardrail systems throughout the Eastern District of Texas as well
as throughout the United States and internationally.
4. Plaintiff Texas A&M is an educational institution organized and existing
under the laws of the State of Texas and conducting business at various branches
throughout the State of Texas, including this division of the Eastern District of Texas.
Texas A&M has licensed certain patents that it holds to Trinity, which licenses Trinity
has used to manufacture its guardrail systems at issue in this matter.
5. Defendant Harman is a citizen of and resides in the Commonwealth of
Virginia. As detailed below, Harman operates and maintains an Internet website to
defame, incite litigation against and to otherwise injure the reputations and business
interests of both Trinity and Texas A&M.
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6. Harman is an officer or owner of various Virginia companies engaged in
road contracting and highway safety product manufacturing.
7. Harman's companies include SPIG Industry, Inc. and SPIG Industry, LLC
(collectively, "SPIG") and Selco Industry ("Selco"). SPIG manufactures and Selco
installs highway guardrail systems.
8. Harman collaborated and/or conspired with certain unknown person(s) or
entities that have agreed, coordinated and worked with Harman to construct and publish a
website at the internet address "www.failingheads.com" ("the Website") for purposes
more fully explained below. On information and belief, Harman recruited or is actively
soliciting attorneys for the purpose of litigating a "class action" against Plaintiffs.
Plaintiffs' investigation is ongoing, and shall continue expeditiously using the tools of
discovery available through this Court.
9. Enom, Incorporated ("Enom") is a Nevada corporation with its principal
place of business in Washington State. At all relevant times, Enom has represented itself
to the public as "the world's largest domain name and online services wholesaler." Enom
provides services for consumers in Texas and all over the world through the World Wide
Web, and is registered to do business in Texas.
10. On information and belief, Harman registered and currently maintains the
domain name for the Website under contract with Enom. Harman admitted to
undersigned counsel that he operates and maintains the Website.
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JURISDICTION AND VENUE
11. This Court has original jurisdiction over Plaintiffs' trademark claims under
28 U.S.C. § 1331, in that it arises under the Constitution, laws, or treaties of the United
States as hereafter more fully appears.
12. This Court has jurisdiction over Plaintiffs' other claims pursuant to 28
U.S.C. § 1367 in that they form part of the same case or controversy under Article III of
the United States Constitution.
13. This Court also has jurisdiction over Plaintiffs' other claims pursuant to 28
U.S.C. § 1332. Upon information and belief, the parties are diverse and the amount in
controversy, exclusive of interest and costs, exceeds $75,000.
14. Venue is proper pursuant to 28 U.S.C. § 1391(a) and (b).
FACTUAL BACKGROUND
15. Trinity manufactures guardrail systems installed by the appropriate
highway authority throughout the United States using patented products designed to
enhance the safety of the motorized traveling public who errantly depart from the national
highway system. Trinity enjoys an international reputation for excellence in the roadside
safety equipment industry. Trinity derives a substantial portion of its revenues through
the sale of its guardrail products. Among Trinity's guardrail products is the ET-Plus
guardrail end terminal ("ET-Plus"). Texas A&M has granted Trinity the exclusive
license and has assigned certain patents to Trinity relating to the ET-Plus. A guardrail
end terminal is commonly referred to as a "head." Some of these heads, in conjunction
with the rest of the guardrail system, are designed to dissipate the energy of an errant
vehicle that impacts the head.
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16. Trinity has earned and maintained goodwill and a positive reputation in
the community of roadside highway hardware purchasers, suppliers and manufacturers.
This community includes federal and state highway authorities, as well as commercial
customers and road contractors. Trinity's good will and reputation are based almost
entirely upon the proven and federally accepted crashworthiness of its products, including
the ET-Plus.
17. Texas A&M, the designer and developer of the ET-Plus, has assigned and
granted exclusive licenses to several of its patents to Trinity, which patented technology
is used in the manufacturing of the guardrail systems. Texas A&M has earned and
maintained goodwill in the higher education community and has a national reputation for
integrity and academic excellence. Texas A&M receives substantial revenue from its
patent licensing agreements with Trinity or highway products that it has designed,
developed, crash-tested and had accepted by the Federal Highway Safety Administration.
18. During February 2011, Trinity learned that SPIG was manufacturing
guardrail terminal systems that substantially infringed upon the Plaintiffs' patented ET-
Plus system. Trinity also learned that Selco was representing to the Virginia Department
of Transportation that it was installing Trinity's ET-Plus product on state highways, when
in fact Selco was installing the infringing guardrail end terminal devices produced by
SPIG. SPIG's end terminals are not authorized or licensed by Plaintiffs. SPIG's end
terminals are not tested or federally approved as a product which may be installed on the
National Highway System by the FHWA. Plaintiffs were (and are) concerned that SPIG's
end terminal devices, as installed by Selco, place the general public at risk of personal
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injuries in the event of a motor vehicle accident with an untested and unaccepted highway
product.
19. On September 2, 2011, Trinity filed a Complaint in the Eastern District of
Virginia against SPIG and Selco seeking injunctive and monetary relief stemming from,
inter alia, these patent and trademark infringements ("the EDVA Action"). The EDVA
Action is Civil Action No. 1:1 l-cv-937.
20. Joshua Harman, the named Defendant in the instant Complaint, is not a
party to the EDVA Action, however.
21. On January 24, 2012, certain executives and legal counsel of Trinity met
with legal counsel for SPIG and Selco. Harman attended the meeting, as well. At what
became the conclusion of this meeting, Harman made verbal threats against the Plaintiffs'
business.
22. Specifically, Harman asserted that Trinity is "killing people" and that his
claims are "supported by math." See Affidavit of Gregory Mitchell f 26, a copy of which
is attached as Exhibit A.
23. Harman also threatened to contact the Federal Highway Safety
Administration ("FHWA") with these same baseless allegations against Plaintiffs. On
information and belief, Harman did contact at least one employee at the FHWA and
alleged that Trinity is incorrectly fabricating its ET-Plus head, and even provided a
photograph to the FHWA purporting to support his false and defamatory allegations.
24. Harman further threatened to post these, and other untrue and defamatory
assertions against Plaintiffs, on an Internet website he intended to create located at
"www.failingheads.com." See Ex. A, Mitchell Aff. \ 17. Harman attempted to justify his
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threatened irrational behavior as retribution for Trinity purportedly "ruining" his
businesses, SPIG and Selco.
25. The Website address was registered on January 16, 2012.
26. On information and belief, Harman registered the Website by opening a
web hosting account with Enon, Inc. Harman created and maintains the Website to carry
out his threats against Plaintiffs.
27. Plaintiffs checked the Website on January 24, 2012 and each day
thereafter. Initially, the Website was password protected. In other words, the Website
content could not be viewed by the general public without obtaining a user name and
password from the person responsible for maintaining the Website - Harman.
28. On January 26, 2012, local counsel for Trinity and Texas A&M in the
EDVA Action (Eckert Seamans Cherin & Mellott, LLC) sent a cease and desist letter to
counsel for SPIG and Selco (Roetzel & Andress), advising these attorneys that any action
by Harman to publish the defamatory remarks described in the January 24, 2012 meeting
would be met with swift court action. A copy of the January 24, 2012 letter is attached
hereto as Exhibit B.
29. On January 27, 2012, attorneys at Roetzel & Andress confirmed that they
received the cease and desist letter (Ex. B) and conveyed it to Harman. However, Roetzel
& Andress stated that the law firm does not represent Harman, individually.
30. At some time prior to 1:00 p.m. on January 27, 2012, the Website's
content became publically available. The Website contains numerous defamatory, false
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and misleading statements1 specifically intended to interfere with Plaintiffs' business and
to invite a "class action" lawsuit against them. See Ex. A, Mitchell Aff. f̂ 22(a) - (j). For
example, the Website repeatedly asserts that the Plaintiffs' ET-Plus products are deadly,
that the ET-Plus has been conclusively proven to be dangerous and further insinuates that
the purported dangers of these products are a result of Plaintiffs' cost cutting measures.
See id.; see also Website "News" page and "History" page (color copies available for in
camera inspection).
31. By way of further example, under the Website's "History" page, it states
that:
The current (fourth) and most common generation EndTerminal frequently fails and becomes a serious safetyhazard rather than a safety device. THIS IS THE FATALHEAD!!!!!
Such statements are untrue, unsubstantiated, malicious and published with intent to
damage the Plaintiffs' reputation and business. Further, they are completely contrary to
the products' acceptance by the Federal Highway Safety Administration.
32. Harman is responsible for each and every statement on the Website. He
personally provided its content. Moreover, the Website created by Harman is interactive,
inasmuch as it purports to depict automobile accident sites in various states - including
Texas - and actively solicits residents of these states to engage in commercial activity
with the Defendant via joining a "class action" legal enterprise against Plaintiffs. In other
words, the puipose and intent of the Website is to gather actual or potential customers for
a "class action" based on bodily injury or wrongful death claims, using false and
' Screenshots of the Website will be made available to the Court upon request and at any hearing upon thematters treated in this Complaint. Plaintiffs have not attached the screenshots as exhibits to the Complaint
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defamatory statements about Plaintiffs and their product. The Website is accessible to
Texas residents, and invites them to exchange information with the Website operators in
order to join this enterprise, as well as to receive access to restricted content on the
Website. On information and belief, this restricted content contains additional false and
defamatory statements about Plaintiffs and their products.
33. The Website is the fulfillment of Harman's January 24, 2012 threats to
seek retribution for alleged or imagined wrongs perpetuated against Harman's businesses
by Trinity and Texas A&M. Trinity and Texas A&M allegedly "ruined" Harman's
businesses by demanding that he stop infringing on Plaintiffs' patents and trademarks,
and installing untested and unapproved end terminal devices on the Virginia highways.
34. Upon information and belief, Harman is working with an attorney who
hopes to financially benefit from the Website by inviting injured persons to file frivolous
personal injury and product liability lawsuits against the Plaintiffs. On each page of the
Website it states that its purpose is "[t]o connect individuals for a class action lawsuit."
On information and belief, the Website is the result of a coordinated effort by Harman
and unknown individuals to perpetuate and widely disseminate these false allegations
against Plaintiffs for financial gain.
35. Upon information and belief, the disparaging and false publications on the
Website have been, are, and will continue to be viewed by the public. The dissemination
of the information contained on the Website has and will continue to damage the
Plaintiffs' reputation and goodwill with regulators, vendors, business partners and
customers. The Website, per its design and intent, will also cause Plaintiffs to lose
out of concern that doing so would further disseminate and republish the falsities contained therein.
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business to competitors. The statements on the Website may also encourage further
financial losses associated with the legal expense of defending unfounded lawsuits
invited by the Website.
36. Trinity holds the U.S. registered trademark for the name ET-Plus. A copy
of U.S. Trademark Registration No. 2553809 is attached hereto as Exhibit C. Since at
least April 2000, Trinity has used continually the ET-Plus trademark in connection with
the marketing and sale of metal highway safety devices comprised of vehicle energy
absorbing systems, named, crash attenuator terminals. The Website uses Trinity's
trademark ET-Plus to identify the impact head portion of the guardrail depicted therein.
See Website "About" page. Harman knowingly and wrongfully used, and continues to
use, Trinity's ET-Plus trademark in an effort to tarnish the trademark and injure the
Plaintiffs. As stated above, Harman hopes to financially benefit from his
misappropriation of Plaintiffs' trademark by using it on the Website to inspire a class
action lawsuit against the Plaintiffs. Harman also intended to harm the reputation of the
ET-Plus trademark and products marketed and sold under the ET-Plus trademark.
37. The damages resulting from Harman's defamatoiy statements and
trademark dilution will be impossible to fully quantify. Plaintiffs have and will suffer
irreparable harm as a result of Harman's publication of the Website. The longer the
Website remains up and operational - whether protected by a user name/password, or
available to be viewed by the general public - the greater the injury the Plaintiffs will
sustain.
10
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38. Defendant will continue to improperly defame Plaintiffs' reputations,
disparage and interfere with their businesses and dilute Trinity's trademark unless and
until this Court grants the injunctive relief requested.
COUNT IDefamation
39. Plaintiffs reallege and incorporate by reference herein Paragraphs 1
through 38 above.
40. Harman is responsible for the publication of numerous defamatoiy
statements concerning the Plaintiffs and their products, including but not limited to the
Website contents described above and Harman's communications to the FHWA. Each of
these statements was made with actual malice towards Plaintiffs.
41. As a direct and proximate result of Harman's acts, Plaintiffs have
sustained injury to their reputations in their respective industries and loss of their
accumulated goodwill in their communities. Plaintiffs will continue to sustain damages
in the future. The full extent of Plaintiffs' injury caused by Harman's defamatory
statements is incapable of exact proof at this time, but exceeds $75,000, exclusive of
interest, attorneys' fees and costs.
42. Plaintiffs are entitled to recover damages from Harman equal to the value
of their lost revenue, market share, business opportunities, goodwill and reputational
prestige resulting from Harman's improper conduct and other such damages as the Court
deems appropriate, including punitive damages and attorneys' fees.
11
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COUNT IIBusiness Disparagement
43. Plaintiffs reallege and incorporate by reference herein Paragraphs 1
through 42 above.
44. As described more fully above, Defendant Harman published derogatory
and disparaging statements concerning the Plaintiffs, their products and their business
operations. Defendant did so with malice towards the Plaintiffs and without privilege.
45. Defendant's actions have and will result in the Plaintiffs suffering special
damages. Plaintiffs are therefore entitled to recover damages from Harman for the losses
Plaintiffs incur due to the disparagement as well as punitive damages.
COUNT IIITrademark Dilution By Tarnishment
46. Trinity realleges and incorporates by reference herein Paragraphs 1
through 45 above.
47. As a cause of action and grounds for relief, Trinity alleges trademark
dilution by tarnishment of the registered trademark ET-Plus by Harman under § 43 (c) of
the Lanham Act, 15 U.S.C. § 1125. By virtue of its substantial investment of time and
resources in the continued development and promotion in interstate commerce of the ET-
Plus trademark in connection with the sale of the guardrail systems, Trinity's ET-Plus
trademark is highly distinctive and has become universally associated in the public mind
with products of the highest quality and reputation and the ET-Plus trademark is entitled
to protection against dilution and disparagement.
48. Harman has used and is continuing to use the trademark ET-Plus in a
manner that is likely to injure Trinity's business reputation and to dilute and disparage the
12
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distinctive quality of the ET-Plus trademark within the meaning of § 43 (c) of the Lanham
Act, 15 U.S.C. § 1125. This conduct is causing immediate and irreparable harm and
damage to Trinity, and will continue to cause same unless and until enjoined.
COUNT IVPreliminary and Permanent Injunetive Relief
49. Plaintiffs reallege and incorporate by reference herein Paragraphs 1
through 48 above.
50. For the reasons stated above, Plaintiffs assert a claim for preliminary and
permanent injunetive relief to prevent the ongoing harm to Plaintiffs' business,
reputation, goodwill and to the general public who rely upon guardrail safety devices to
prevent or reduce injuries during motor vehicle accidents. Unless the injunetive relief
requested herein is granted, the Plaintiffs will suffer irreparable harm.
51. As shown from the facts above, unless the Defendant is preliminarily and
permanently restrained from further dissemination of defamatory, false and misleading
materials and information, Plaintiffs will suffer immediate and irreparable injury.
52. Defendant Harman should be subject to a preliminary and permanent
injunction to halt his commission of on-going and future wrongs, prevent further
irreparable harm to Plaintiffs, and promote the interests of justice. The injunetive relief
sought from Defendant Harman is described below.
PRAYER FOR RELIEF
Plaintiffs therefore request the Court to enter judgment in their favor and grant the
following relief:
1. Judgment in Plaintiffs' favor on all counts of the Complaint;
13
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2. An award of compensatory and punitive damages, in an amount to be
determined at trial, against Defendant Harman and in favor of the Plaintiffs for the injury
to Plaintiffs' reputations and businesses as a result of the defamatory statements made by
Harman;
3. An accounting to determine damages for all forms of dilution of the ET-
Plus trademark and that Plaintiffs be awarded such damages from Harman determined to
have been inflicted by same;
4. A trebling of damages for bad faith trademark dilution;
5. An award of Plaintiffs' costs and attorneys' fees, pursuant to 15 U.S.C. §
1117 and/or any other applicable statute or common law principle;
6. An assessment of pre-judgment and post-judgment interest on the damages
determined;
7. That Harman, his agents, attorneys, servants, employees, and other persons
in active concert or participation with him, be preliminarily and permanently enjoined,
and Ordered to:
A) Cease directly or indirectly publishing the statements contained on
the Website and/or inviting or inciting others to republish the defamatory
statements;
(B) Halt any and all, direct or indirect dilution or violation of
Plaintiffs' rights in and to their trademark of ET-Plus; and from
contributing to, aiding, or inducing similar violations by others;
(C) Remove all content from the Website and cease publishing same,
while strictly preserving such electronic evidence for consideration and
14
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use in further Court proceedings;
(D) Provide immediately to the Plaintiffs a copy of "the Presentation"
referenced on the Website (but currently restricted by user name and
password access), any information obtained as a result of the "class
action" solicitation on the Website, and the internet protocol ("IP")
addresses of any visitors accessing the Website content during its
existence, or since January 16, 2012, whichever is earlier;
(E) Produce and provide to the Plaintiffs the name, address, telephone
number, IP address and any other identifying information from the
registration records maintained by Enom, Inc., of any person or entity
involved in the registration, creating, updating or maintenance of the
Website; and
(F) Produce and provide to the Plaintiffs the name, address, telephone
number, IP address and any other identifying information from the
payment transactions or records (with the exception of credit card
numbers) regarding the registration or maintenance of the Website.
8. Along with such other relief as this Court deems necessary and proper.
15
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Dated: January 30, 2012
TRINITY INDUSTRIES, INC. andTHE TEXAS A&M UNIVERSITY SYSTEM
By: //rob//Russell C. Brown, Esq.(Texas Bar No. 03167510)THE LAW OFFICES OFRUSSELL C. BROWN, P.C.P.O. Box 1780Henderson, Texas 75653-1780Telephone: 903.657.8553Fax: [email protected]
J. Mark Mann, Esq.(Texas Bar No. 12926150)The Mann Firm300 West Main StreetHenderson, Texas 75652Telephone: 903.657.8540Fax: 903.657.6003mark@themannfirm .com
Counsel for Plaintiffs Trinity Industries, Inc.and The Texas A&M University System
16
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EXHIBIT A
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IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
TRINITY INDUSTRIES, INC., and )
)THE TEXAS A&M UNIVERSITY SYSTEM, )
)Plaintiffs, )
) Civil Action No.VS. )
) JURY TRIAL DEMANDEDJOSHUA HARMAN, )
)Defendant. )
AFFIDAVIT OF GREGORY MITCHELL
This day, personally appeared before me, Gregory Mitchell, who averred under oath the
following:
1. My name is Gregory Mitchell and I am the President of Trinity Highway Products,
LLC, a subsidiary of Trinity Industries, Inc., the Plaintiff in this matter. My business address is
2525 Stemmons Freeway, Dallas, Texas 75207. I have personal knowledge of the matters set
forth in this Affidavit.
2. My job duties include the leadership and management of Trinity Highway
Products, LLC.
3. Trinity uses the trademarked name "ET-Plus" to describe its unique and patented
highway guardrail end terminals. Trinity's ET-Plus is widely recognized by customers who
purchase them as one of the highest quality guardrail terminals available. Trinity licenses the
patented ET-Plus from The Texas A&M University System. Pursuant to these license
Case 2:12-cv-00046-JRG Document 1-1 Filed 01/30/12 Page 2 of 7 PageID #: 18
4. The ET-Plus is a federally approved and energy-absorbing end terminal. It can be
used at the termination of flexible barriers on the shoulder of a roadway or in the median.
5. Below is a picture of an ET-Plus manufactured by Trinity:
-*TJS*3W
6. The ET-Plus is approved for installation on highways throughout the United
States, including the District of this Court.
7. The ET-Plus is tested and accepted by the Federal Highway Safety
Administration ("FHWA") under the provisions of National Cooperative Highway Research
Program ("NCHRP") Report 350, "Recommended Procedures for the Safety Performance
Evaluation of Highway Features."
8. The ET-Plus is accepted for use and installation on the Federal and state
highways.
9. Trinity sells the ET-Plus to road contractors to install and maintain on the Federal
and state highways.
10. Trinity sold the ET-Plus to entities owned or controlled by Mr. Joshua Harman of
Bristol, Virginia, or the surrounding area.
11. As of December 2011, the Virginia Department of Transportation ("VDOT")
removed Selco from the list of prequalified bidders, hi particular, I understand that Selco will
not be allowed to bid, nor take on any work as a subcontractor on VDOT road projects. On
information and belief, Selco was removed from the VDOT prequalification list because it
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11. As of December 2011, the Virginia Department of Transportation ("VDOT")
removed Selco from the list of prequalified bidders. In particular, I understand that Selco will
not be allowed to bid, nor take on any work as a subcontractor on VDOT road projects. On
information and belief, Selco was removed from the VDOT prequalification list because it
installed unapproved "GR9" units on Virginia highways, and Selco did not timely provide VDOT
with a schedule for replacing these units in response to a demand from VDOT,
12. Earlier in 2011, VDOT ordered Selco to remove and replace certain "GR9" end
terminal devices from Virginia highways. These GR9 devices were manufactured by another
company owned or operated by Mr. Harrnan called SPIG Industries,
13. Trinity has asserted in Court filings that these GR9 devices - as manufactured by
Mr. Harman's SPIG entity and installed by his Selco affiliate - are an unauthorized, untested and
uncertified copy of Trinity's patented and proprietary ET-Plus product.
14. In particular, Trinity and the inventors at The Texas A&M University System
have asserted claims against Mr. Harman's companies in the U.S. District Court for the Eastern
District of Virginia for patent and trademark infringement, and unfair competition. The case is
styled Trinity Industries, Inc., etal. v. SPIG Industry, LLC, etal, Civil Action No. I:llcv937,
with Judge Claude M. Hilton presiding.
15. On July 24, 2012,1 attended a face-to-face meeting with Mr. Harman in
Washington, D.C. to discuss Trinity's claims, and Mr. Harman's proposal for resolving these
claims.
16. During this meeting, Mr. Harman stated that he (individually) had created, or
contributed to, an Internet Website located at www.failingheads.com ("the Website") that would
Case 2:12-cv-00046-JRG Document 1-1 Filed 01/30/12 Page 4 of 7 PageID #: 20
show Trinity is "killing people" and that his claims are "supported by math." He also claimed to
have evidence and photographs from across the U.S. to support these wild claims.
17, Mr. Harman stated that he intended to activate the Website.
18, Subsequent to the meeting, Trinity's legal counsel determined that the domain
name for the Website was, in fact, registered on January 16, 2012.
19. Between January 24 through 26, 2012, the Website was protected by a user name
and password, and the contents could not be viewed by the public without this information.
20. On January 27, 2012, Trinity discovered that the Website is active and populated
with information, photographs and specific references to both the ET-Plus product and Texas
A&M University System.
21, Trinity did not authorize or consent to the use of the ET-Plus name, or the images
purporting to show the ET-Plus, on the Website,
22. The Website makes the following false or misleading allegations regarding the
ET-Plus product, and specifically posts photographs labeled as the ET-Plus:
(a) falsely claiming that ET-Plus heads are killing people
(b) falsely claiming that ET-Plus heads are failing "completely"
(c) falsely claiming that "people are perishing because o f the ET-Plus
(d) falsely suggesting that unauthorized design or manufacturing changes were
made to the ET-Plus
(e) falsely suggesting that design changes were made to save money at the
expense of public safety
(f) falsely claiming that the ET-Plus "chokes" and "fails"
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(g) falsely claiming to have measured and documented ET-Plus failures in
numerous states, without any elaboration
(h) falsely claiming that the ET-Plus frequently fails and becomes a serious
safety hazard rather than a safety device, e.g., "THIS IS THE FATAL HEAD MM!"
(i) falsely claiming that the ET-Plus killed a "mother of a 12 yr old son"
because the guardrail impact head fail completely
(j) purporting to show that the ET-Plus will fail on impact "based upon
physical measurements of the actual terminal."
23. The ET-Plus has been tested, certified and authorized for use on U.S. highways.
To my knowledge, Trinity has never been found liable for making a defective ET-Plus product.
24. The Website should be blocked and these false and defamatory statements
regarding Trinity and the ET-Plus should be removed from public view and further
dissemination. Mr. Harman, and those acting with him, should be ordered by this Court to cease
and desist such further damaging conduct.
25. The ET-Plus product and its commercial reputation will be irreparably harmed by
the continued existence of this Website and its false contents.
26. I understand that attorneys representing Trinity will be filing this Affidavit with
this Court asking for an Order to block the Website, and whatever further relief may be available
to remedy the damage to Trinity and its reputation.
And further this affiant said not.
Date: I 130 11 3 6 A T)A f j HPGREGGR^MiTCHELL
Case 2:12-cv-00046-JRG Document 1-1 Filed 01/30/12 Page 6 of 7 PageID #: 22
STATE OF TEXAS
COUNTY OF DALLAS
)) TO WIT:)
Subscribed and sworn to before me this ^0-/^ day of J f ld t /^ _,2012.¥•
Notary Public </ /
My Commission Expires: Pc-type r &• v Ho If
Notary Registration Number: j'XL 30339-A
j0JH%h k THOMAS GREGORY LITTLEI i V b ! * I Notary Public, State of Texas4 O . ' # M y Comniission Expires*%,!&!$* October 26, 2015
Case 2:12-cv-00046-JRG Document 1-1 Filed 01/30/12 Page 7 of 7 PageID #: 23
EXHIBIT B
Case 2:12-cv-00046-JRG Document 1-2 Filed 01/30/12 Page 1 of 2 PageID #: 24
Eckert Seamans Cherin & Mellott, LLC TEL 804 788 7740Eighth and Main Building, Suite 1450 FAX 804 698 2950707 East Main Street www.eckertseamans.comRichmond, Virginia 23219
Matthew B. Kirsner, Esq.(804)788-7744(804) 698-2950 (Fax)[email protected]
January 27, 2012
VIA EMAIL TO [email protected]
Re: www.failingheads.com
Dear Sir:
On behalf of Trinity Industries, Inc. ("Trinity") and The Texas A&M University System("TAMUS"), I am writing to demand that you immediately take down the Internet websitelocated at www.failingheads.com ("the Website"). The Website exists for the purpose ofdefaming and injuring Trinity and TAMUS in their business reputations, and disparaging theirproprietary ET Plus products. The Website contains false allegations and inferences about theET Plus product and my clients.
By this letter, Trinity and TAMUS demand that you, and any person or entity acting inconcert with you, cease and desist from any activities intended to, or having the effect of,defaming and injuring my clients in their business reputations. If you do not immediately takedown the Website, or otherwise cease the publication of false statements regarding my clients,Trinity and TAMUS will seek full redress available under the law, including a TemporaryRestraining Order, Preliminary Injunction and suit for money damages against you and thoseacting in concert with you,
Please reply to confirm that the Website has been deactivated and removed permanently.Thank you.
Sincerely,
Matthew B. Kirsner
cc: Heather Perttula Randall, Esq. (via email)Russell C. Brown, Esq. (via email)Benjamin E. Maskell, Esq. (via email)
R I C H M O N D , V A B O S T O N , M A C H A R L E S T O N , W V H A R R I S B U R G , P A P H I L A D E L P H I A , P A
P I T T S B U R G H , P A S O U T H P O I N T E , P A W A S H I N G T O N , D C W H I T E P L A I N S , N Y W I L M I N G T O N , D E
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EXHIBIT C
Case 2:12-cv-00046-JRG Document 1-3 Filed 01/30/12 Page 1 of 2 PageID #: 26
Int Q.: 6
Prior U.S. Os.: 2,12,13,14, 23, 25, and 50Reg. No. 2,553,809
United States Patent and Trademark Office Registered Mar, 26,2002
TRADEMARKPRINCIPAL REGISTER
ET PLUS
MANAGING TRUSTEES OF TRN BUSINESS SYSTEMS, NAMELY, CRASH ATTENUATORTRUST, A DELAWARE BUSINESS TRUST, TERMINALS, IN CLASS 6 (U.S. CLS. 2, 12,13,14,23,THE TRUSTEES COMPRISING OF TIMOTHY 2S AND vt\25 AND 50).
FIRST USE 4-0-2000; IN COMMERCE 4-0-2000.
SN 76-014,984, FILED 3-31-2000.
R. WALLACE, JIM S. IVY AND MICHAEL GFORTADO, ALL U.S. CITIZENS, THE (DELA-
•WARE BUSINESS TRUST)2525 STBMMONS FREEWAYDALLAS, TX 75207
FOR: METAL HIGHWAY SAFETY DEVICESCOMPRISED OF VEHICLE ENERGY ABSORBING BRADLEY BAYAT, EXAMINING ATTORNEY
Case 2:12-cv-00046-JRG Document 1-3 Filed 01/30/12 Page 2 of 2 PageID #: 27
JS 44 (Rev. 09/11) CIVIL COVER SHEETThe JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as providedby local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiatingthe civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS DEFENDANTS
(b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.
(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff)(For Diversity Cases Only) and One Box for Defendant)
’ 1 U.S. Government ’ 3 Federal Question PTF DEF PTF DEFPlaintiff (U.S. Government Not a Party) Citizen of This State ’ 1 ’ 1 Incorporated or Principal Place ’ 4 ’ 4
of Business In This State
’ 2 U.S. Government ’ 4 Diversity Citizen of Another State ’ 2 ’ 2 Incorporated and Principal Place ’ 5 ’ 5Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State
Citizen or Subject of a ’ 3 ’ 3 Foreign Nation ’ 6 ’ 6 Foreign Country
IV. NATURE OF SUIT (Place an “X” in One Box Only)CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
’ 110 Insurance PERSONAL INJURY PERSONAL INJURY ’ 625 Drug Related Seizure ’ 422 Appeal 28 USC 158 ’ 375 False Claims Act’ 120 Marine ’ 310 Airplane ’ 365 Personal Injury - of Property 21 USC 881 ’ 423 Withdrawal ’ 400 State Reapportionment’ 130 Miller Act ’ 315 Airplane Product Product Liability ’ 690 Other 28 USC 157 ’ 410 Antitrust’ 140 Negotiable Instrument Liability ’ 367 Health Care/ ’ 430 Banks and Banking’ 150 Recovery of Overpayment ’ 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS ’ 450 Commerce
& Enforcement of Judgment Slander Personal Injury ’ 820 Copyrights ’ 460 Deportation’ 151 Medicare Act ’ 330 Federal Employers’ Product Liability ’ 830 Patent ’ 470 Racketeer Influenced and’ 152 Recovery of Defaulted Liability ’ 368 Asbestos Personal ’ 840 Trademark Corrupt Organizations
Student Loans ’ 340 Marine Injury Product ’ 480 Consumer Credit (Excl. Veterans) ’ 345 Marine Product Liability LABOR SOCIAL SECURITY ’ 490 Cable/Sat TV
’ 153 Recovery of Overpayment Liability PERSONAL PROPERTY ’ 710 Fair Labor Standards ’ 861 HIA (1395ff) ’ 850 Securities/Commodities/ of Veteran’s Benefits ’ 350 Motor Vehicle ’ 370 Other Fraud Act ’ 862 Black Lung (923) Exchange
’ 160 Stockholders’ Suits ’ 355 Motor Vehicle ’ 371 Truth in Lending ’ 720 Labor/Mgmt. Relations ’ 863 DIWC/DIWW (405(g)) ’ 890 Other Statutory Actions’ 190 Other Contract Product Liability ’ 380 Other Personal ’ 740 Railway Labor Act ’ 864 SSID Title XVI ’ 891 Agricultural Acts’ 195 Contract Product Liability ’ 360 Other Personal Property Damage ’ 751 Family and Medical ’ 865 RSI (405(g)) ’ 893 Environmental Matters’ 196 Franchise Injury ’ 385 Property Damage Leave Act ’ 895 Freedom of Information
’ 362 Personal Injury - Product Liability ’ 790 Other Labor Litigation Act Med. Malpractice ’ 791 Empl. Ret. Inc. ’ 896 Arbitration
REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS Security Act FEDERAL TAX SUITS ’ 899 Administrative Procedure’ 210 Land Condemnation ’ 440 Other Civil Rights ’ 510 Motions to Vacate ’ 870 Taxes (U.S. Plaintiff Act/Review or Appeal of ’ 220 Foreclosure ’ 441 Voting Sentence or Defendant) Agency Decision’ 230 Rent Lease & Ejectment ’ 442 Employment Habeas Corpus: ’ 871 IRS—Third Party ’ 950 Constitutionality of’ 240 Torts to Land ’ 443 Housing/ ’ 530 General 26 USC 7609 State Statutes’ 245 Tort Product Liability Accommodations ’ 535 Death Penalty IMMIGRATION’ 290 All Other Real Property ’ 445 Amer. w/Disabilities - ’ 540 Mandamus & Other ’ 462 Naturalization Application
Employment ’ 550 Civil Rights ’ 463 Habeas Corpus -’ 446 Amer. w/Disabilities - ’ 555 Prison Condition Alien Detainee
Other ’ 560 Civil Detainee - (Prisoner Petition)’ 448 Education Conditions of ’ 465 Other Immigration
Confinement Actions
V. ORIGINTransferred fromanother district(specify)
(Place an “X” in One Box Only)’ 1 Original
Proceeding’ 2 Removed from
State Court’ 3 Remanded from
Appellate Court’ 4 Reinstated or
Reopened’ 5 ’ 6 Multidistrict
Litigation
VI. CAUSE OF ACTIONCite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity): Brief description of cause:
VII. REQUESTED IN COMPLAINT:
’ CHECK IF THIS IS A CLASS ACTIONUNDER F.R.C.P. 23
DEMAND $ CHECK YES only if demanded in complaint:JURY DEMAND: ’ Yes ’ No
VIII. RELATED CASE(S) IF ANY (See instructions): JUDGE DOCKET NUMBER
DATE SIGNATURE OF ATTORNEY OF RECORD
FOR OFFICE USE ONLY
RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE
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JS 44 Reverse (Rev. 09/11)
INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44
Authority For Civil Cover Sheet
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as requiredby law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for theuse of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civilcomplaint filed. The attorney filing a case should complete the form as follows:
I. (a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use onlythe full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, givingboth name and title.
(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at thetime of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnationcases, the county of residence of the “defendant” is the location of the tract of land involved.)
(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, notingin this section “(see attachment)”.
II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.C.P., which requires that jurisdictions be shown in pleadings. Place an “X” in oneof the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.
United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an “X” in this box.
Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to theConstitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box1 or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship ofthe different parties must be checked. (See Section III below; federal question actions take precedence over diversity cases.)
III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this sectionfor each principal party.
IV. Nature of Suit. Place an “X” in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, issufficient to enable the deputy clerk or the statistical clerks in the Administrative Office to determine the nature of suit. If the cause fits more than one nature ofsuit, select the most definitive.
V. Origin. Place an “X” in one of the seven boxes.Original Proceedings. (1) Cases which originate in the United States district courts.
Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the petitionfor removal is granted, check this box.
Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date.
Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrictlitigation transfers.
Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. When thisbox is checked, do not check (5) above.
Appeal to District Judge from Magistrate Judgment. (7) Check this box for an appeal from a magistrate judge’s decision.
VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutesunless diversity. Example: U.S. Civil Statute: 47 USC 553
Brief Description: Unauthorized reception of cable service
VII. Requested in Complaint. Class Action. Place an “X” in this box if you are filing a class action under Rule 23, F.R.Cv.P.Demand. In this space enter the dollar amount (in thousands of dollars) being demanded or indicate other demand such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
VIII. Related Cases. This section of the JS 44 is used to reference related pending cases if any. If there are related pending cases, insert the docket numbersand the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.
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