But Plaintiffs’ filing contains none of these. Rather, the DOL’s amicus brief in the Citigroup case is legal argument proffered in a different case, to persuade a different court how to rule, and thus carries no precedential value for this Court. It is not new “authority” that this Court can or should consider, and it is an improper 1 See Ormond v. Anthem, Inc., 2008 WL 906157, at *1, n.2 (S.D. Ind. Mar. 31, 2008) (analyzing notice of supplemental authority under criteria set forth in Fed. R. App. P. 28(j)). Case 1:08-cv-05722-LTS-DCF Document 61 Filed 02/05/10 Page 2 of 5 US_ACTIVE:\43293449\08\14430.

R. APP. P. 28(J) Defendant, Colgate-Palmolive Company (“Colgate”), by its undersigned counsel, responds to Plaintiffs’ Citation to Supplemental Authority Pursuant to Fed. R. App. P. 28(j)1 (Doc. 98) as follows: Plaintiffs have filed with the Court two recent opinions—Lyons v. Colgate-Palmolive Company, No.

This procedure is more in keeping with the applicable rules, which provide for the appellant to file the final brief on appeal. See Fed. R. Bankr. P. 8009(a)(3); Fed. R. App. P. 28. Case 2:11-cv-00133-MHT Document 33 Filed 06/13/11 Page 13 of 16 10 CONCLUSION The FDIC-Receiver respectfully submits that the motion to strike should be denied.

If the Regulation is simply a clarification as defendants have argued, but not an attempt to change an unambiguous statute by way of agency action, as the Tribe has argued, then the Tribe prevailed in a key respect by forcing the EPA to clarify an area of the law that was open to debate and dispute. While the Tribe believes that this is not a clarification but a re-writing of the 2 When EPA submitted the Fed. R. App. P. 28(j) letter, the Tribe objected because in this Circuit new issues cannot be raised for the first time on appeal through supplemental authority. United States v. Smith, 416 F.3d 1350, 1352 n.1 (11th Cir. 2005) (new issues cannot be raised in supplemental briefing, even if the issues arise based on intervening decisions or new developments cited in the supplemental authority).

The Federal Rules of Appellate Procedure require appellants to file a jurisdictional statement setting forth “the basis for the district court’s . . . subject-matter jurisdiction, with citations to applicable statutory provisions and stating relevant facts establishing jurisdiction.” Fed. R. App. P. 28(a)(4)(A). In the course of preparing Plaintiff’s brief to the Sixth Circuit, Plaintiff’s counsel again visited HGT’s website, www.hubgroup.com/hubgrouptrucking.

Further, the Federal Rules of Appellate Procedure provide additional guidance on the submission of purported “Supplemental Authorities” in federal court, which should be limited to “pertinent and significant authorities.” FRAP 28(j). 2 Lawrie affirmed dismissal of RICO, conspiracy and “related state law claims” based on plaintiffs’ failure to plead with particularity.

5. In this March 14, 2011 submission introducing the EO (and filed pursuant to Fed. R. App. P. 28(j)), Mr. Sarkis argued in Defendants’ “passing reference” to personal jurisdiction, Plaintiff will, at that time: (a) underscore the fact that Defendants do not dispute his allegations that: (i) Plaintiff’s claims arise from actions taken in the District of Columbia; (ii) he was injured in the District of Columbia in consequence of Defendants’ actions; and (iii) Defendants have engaged in multiple, continuous, systematic, substantial, self-beneficial/promotive and pecuniary contacts with the District of Columbia (Complaint, ¶¶ 1 [final nine lines], 21, 39-50, 52-55, 60); and (b) cite relevant authority, e.g., Blumenthal v. Drudge, 992 F.Supp. 44, 56-58 (D.D.C. 1998), showing that these undisputed forum contacts are jurisdictionally sufficient. Additionally, should the Court order briefing on Defendants’ “passing referenc

NML and the other plaintiffs opposed Citibank’s motion. Case 1:08-cv-06978-TPG Document 661 Filed 09/05/14 Page 9 of 22 5 On August 13, 2014, pursuant to Federal Rule of Appellate Procedure 28(j), Citibank submitted to the Second Circuit a copy of the Finance Secretary Letter—the very same letter that NML had submitted to this Court five days earlier.2 Letter from Karen E. Wagner to Catherine O’Hagan Wolfe, Aurelius Capital Master, Ltd. v. Republic of Argentina, No. 14-2689(L), filed Aug. 13, 2014, Ex. A (Dkt.

Third, and last, Apple’s proposed sur-reply brief simply re-hashes its opposition brief and adds nothing to the Court’s analysis of this motion.9 It continues to misapprehend Voice Domain’s positions on the disputed “AEO” provision and offers no constraint whatsoever on Apple’s proposed power to designate anything “sensitive” and thus as “AEO”—and to thereby preclude Voice Domain’s only member from having meaningful review of pertinent information (including for example the documents Apple is supposed to produce on August 11 allegedly 7 See, e.g., D.I. 30 at 3-4. 8 E.g., Fed. R. App. P. 28 (a), (b), (c) (after filing of opening brief, opposition brief, and reply brief, “[u]nless the court permits, no further briefs may be filed”). 9 Compare, e.g., Apple’s Opposition Brief (D.I. 45) at 11 (“there is also a high risk of inadvertent misuse”) with Apple’s Proposed Sur-Reply (D.I. 51-1) at 2 (“This argument is also wrong as it fails to recognize the risk of unintentional or inadvertent disclosure or misuse.”)

The cited cases stand for nothing more than the proposition that relevant facts are supposed to be discussed, with record citations, in the Statement of Facts. See F.R.App.P. 28(a)(7) (“a statement of facts relevant to the issues submitted for review with appropriate references to the record”); Seventh Cir. R. 28(c) (“No fact shall be stated in this part of the brief unless it is supported by a reference to the page or pages of the record or the appendix where that fact appears”). On summary judgment, the relevant rule requires the specific evidentiary citations to be presented in a separate statement of facts, L.R. 56.1(a) & (a)(3), which obviously Plaintiffs have supplied, in addition to citing very specifically some of the relevant facts, and supporting evidence, in the body of the brief.