Official Complaint for Patent Infringement in Civil Action No. 2:14-cv-00851: GRQ Investment Management, LLC v. Financial Engines, Inc. et. al. Filed in U.S. District Court for the Eastern District of Texas, no judge yet assigned. See http://news.priorsmart.com/-laQG for more info.
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GRQ Investment Management v. Financial Engines et. al.
Official Complaint for Patent Infringement in Civil Action No. 2:14-cv-00851: GRQ Investment Management, LLC v. Financial Engines, Inc. et. al. Filed in U.S. District Court for the Eastern District of Texas, no judge yet assigned. See http://news.priorsmart.com/-laQG for more info.
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Official Complaint for Patent Infringement in Civil Action No. 2:14-cv-00851: GRQ Investment Management, LLC v. Financial Engines, Inc. et. al. Filed in U.S. District Court for the Eastern District of Texas, no judge yet assigned. See http://news.priorsmart.com/-laQG for more info.
Direitos autorais:
Public Domain
Formatos disponíveis
Baixe no formato PDF, TXT ou leia online no Scribd
EASTERN DISTRICT OF TEXAS MARSHALL DIVISION GRQ INVESTMENT MANAGEMENT, LLC Plaintiff, v. FINANCIAL ENGINES, INC. and FINANCIAL ENGINES ADVISORS L.L.C. Defendant. Case No. COMPLAINT FOR PATENT INFRINGEMENT DEMAND FOR JURY TRIAL ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT Plaintiff GRQ Investment Management, LLC (GRQ or Plaintiff) hereby alleges for its Complaint for patent infringement against Defendants Financial Engines, Inc., and Financial Engines Advisors L.L.C. (collectively, Financial Engines or Defendants) as follows: PARTIES 1. Plaintiff GRQ Investment Management, LLC is a Texas limited liability company, having a principal place of business at 7005 Chase Oaks Blvd., Suite 180, Plano, TX 75025. 2. On information and belief, Defendant Financial Engines, Inc. is a corporation organized and existing under the laws of the State of Delaware, with its principal place of business located at 1050 Enterprise Way, 3rd Floor, Sunnyvale, California 94089. On information and belief, Financial Engines, Inc. may be served via its registered agent, Corporation Service Company, 2711 Centerville Rd., Ste. 400, Wilmington, DE 19808. 3. On information and belief, Defendant Financial Engines Advisors L.L.C. is a limited liability company organized and existing under the laws of the State of Delaware, with its 2 principal place of business located at 1050 Enterprise Way, 3rd Floor, Sunnyvale, California 94089. On information and belief, Financial Engines Advisors L.L.C. may be served via its registered agent, Corporation Service Company, 2711 Centerville Rd., Ste. 400, Wilmington, DE 19808. JURISDICTION AND VENUE 4. This action arises under the patent laws of the United States, Title 35 of the United States Code. This Court has subject matter jurisdiction pursuant to 28 U.S.C. 1331 and 1338(a). 5. Personal jurisdiction and venue are proper in this district under 28 U.S.C. 1391(b), 1391(c) and 1400(b). On information and belief, Financial Engines has transacted business in this district and/or has committed, contributed to, and/or induced acts of patent infringement in this district. 6. On information and belief, Financial Engines is subject to this Courts specific and general personal jurisdiction pursuant to due process and/or the Texas Long Arm Statute, due at least to its substantial business in this forum, including: (i) at least a portion of the infringements alleged herein; and (ii) regularly doing or soliciting business, engaging in other persistent courses of conduct, and/or deriving substantial revenue from goods and services provided to individuals in Texas and in this judicial district. 7. For example, Financial Engines provides advisory services to companies such as J.C. Penney Company, Inc., and Texas Instruments Incorporated. (http://corp.financialengines.com/about/who-we-work-with.html) 3 8. For example, from 2007-2011, J.C. Penney Company, Inc. paid Financial Engines over $15.6 million dollars for its asset management and investment advisory services related to JC Penneys 401k plans. (http://www.brightscope.com/form-5500/service-providers/55251/J-C-Penney-Corporation- Inc/56193/J-C-Penney-Corporation-Inc-Savings-Profit-Sharing-And-Stock-Ownership- Plan/2011/) 9. For example, from 2007-2012, Texas Instruments Incorporated paid Financial Engines over $5.7 million dollars for its asset management and investment advisory services related to Texas Instruments 401k plans. (http://www.brightscope.com/form-5500/service-providers/349543/Texas-Instruments- Incorporated/354415/Ti-Contribution-And-401k-Savings-Plan/2012/) U.S. PATENT NOS. 7,120,600 AND 8,229,825 10. GRQ is the owner by assignment of United States Patent No. 7,120,600 (the 600 Patent) entitled Systems and Methods for Improving Investment Performance. The 600 Patent issued on October 10, 2006. A true and correct copy of the 600 Patent is attached as Exhibit A. 11. GRQ is the owner by assignment of United States Patent No. 8,229,825 (the 825 Patent) entitled Systems and Methods for Improving Investment Performance. The 825 Patent issued on July 24, 2012. A true and correct copy of the 825 Patent is attached as Exhibit B. 12. Messrs. Brian C. Tarbox and Mark Greenstein are listed as the inventors on the 600 and 825 Patents. 4 13. The late Brian C. Tarbox was a leading advisor in the field of retirement planning and financial services. 14. On information and belief, in 1996 Mr. Tarbox assisted William Sharpe, the founder of Financial Engines, by providing him an initial business model and explaining this model to at least one third party so that Mr. Sharpe could obtain funding during the initial stages of Financial Engines development. Specifically, Mr. Tarbox crucially participated in Financial Engines initial meeting with venture capital partners, who put up the initial $5 million to fund Financial Engines. 15. In 2001, after building upon and further developing the initial business model described above, Brian C. Tarbox was instrumental in obtaining ERISA Advisory Opinion 2001- 09A, more commonly known in the industry as the SunAmerica Opinion. (http://www.dol.gov/ebsa/programs/ori/advisory2001/2001-09A.htm) True and correct copies of articles detailing Mr. Tarboxs fundamental role in creating the plan and obtaining the SunAmerica Opinion are attached as Exhibits C-E. 16. As a result of the SunAmerica Opinion, independent advisory firms, such as Financial Engines, were allowed to team up with money managers to offer one-stop investment management services using an independent financial expert to provide the advice and asset allocation decisions. A true and correct copy of the Pensions and Investments article detailing Financial Engines request is attached as Exhibit F. 17. To provide such services, Financial Engines confirms that it operates in accordance with the SunAmerica Opinion. For example, according to Financial Engines Executive Vice President of Investment Management and Chief Investment Officer, Christopher Jones, Financial Engines believes that our ability to operate under the SunAmerica Opinion has 5 substantially facilitated the delivery of unconflicted advice to plan participantsWe believe the SunAmerica framework allows Financial Engines to provide convenient and cost-effective access to independent and unconflicted advice to more participants, particularly those working for smaller companies. Employees benefit when investment advice is part of a single fully integrated source for all their 401(k) plan questions. (http://www.planadviser.com/House_Lawmakers_Hear_Investment_Advice_Bill_Pleas.aspx) 18. As a result of the SunAmerica opinion, independent advisors such as Financial Engines are allowed to provide managed account services. In September 2004, Financial Engines offered its first managed accounts to Motorola and J.C. Penney employees, and by December 2004, Financial Engines had $1 billion in assets under management. http://www.forbes.com/sites/tomanderson/2014/06/18/nest-egg-onomics-financial-engines-revs- up-retirement-plans/ 19. As of 2014, Financial Engines existing contracts cover 7.9 million workers with $824 billion in their 401(k) plans and it is managing $92 billion of those assets. http://www.forbes.com/sites/tomanderson/2014/06/18/nest-egg-onomics-financial-engines-revs- up-retirement-plans/ 20. On information and belief, to the extent any marking was required by 35 U.S.C. 287, predecessors in interest to the 600 Patent complied with such requirements. 21. On information and belief, to the extent any marking was required by 35 U.S.C. 287, predecessors in interest to the 825 Patent complied with such requirements. COUNT I INFRINGEMENT OF U.S. PATENT NO. 7,120,600 BY FINANCIAL ENGINES 22. Plaintiff GRQ incorporates paragraphs 1 through 21 as if set forth herein. 6 23. Financial Engines has, pursuant to 35 U.S.C. 271, infringed and continues to infringe the 600 Patent in the State of Texas, in this judicial district, and/or elsewhere in the United States by, among other things, making, using, selling, offering to sell, and/or importing, without license, directly or through its customers, managed account services, such as its Personal Asset Manager Program or customer programs such as the Vanguard Personal Online Advisor, Vanguard Managed Account Program. 24. Financial Engines products and services fall within the scope of at least claim 1 of the 600 Patent, as evidenced by Financial Engines and its clients service description. For example, Financial engines provides a system for providing a discretionary asset allocation program for at least one investor, the discretionary asset allocation program provided by (i) at least one conflicted person who receives variable fees or profits for providing services related to the discretionary asset allocation program, or (ii) the at least one conflicted person in concert with at least one person who is substantially independent of the at least one conflicted person. 25. For example, Financial Engines provides a discretionary asset allocation program for an investor and a data storage means for storing data for that investor. Additionally, Financial Engines provides means, operatively connected to the data storage means, for automatically implementing discretionary investment allocation decisions utilizing the discretionary asset allocation program, wherein the discretionary investment allocation decisions are automatically implemented using process that reduces or eliminates the at least one conflicted person's ability to self-deal, and wherein the discretionary investment allocation decisions are implemented, developed, or maintained by the at least one substantially independent person. Financial Engines is independent of the funds in an investor plan. 7 JC Penney SPD Managing Your Account Attached as Exhibit G. 26. Additionally, Financial Engines provides a computer having a program, operatively connected to said means for automatically implementing discretionary investment allocation decisions, to implement the discretionary investment allocation decisions implemented, developed, or maintained and means, operatively connected to said means for automatically implementing discretionary investment allocation decisions, for eliminating or at least ameliorating possible economic conflict of interest by separating or appropriately combining, the determination of how much to save and how to allocate investment assets from other fee generating functions. 27. As specified earlier, Financial Engines complies with the SunAmerica Opinion which states: According to your submission, while SunAmerica will be making the Program, as well as other services, available to Plans, the Model Asset Allocation Portfolios offered under the Program will, in fact, be the product of a computer program applying a methodology developed, maintained and overseen by a financial expert who is independent of SunAmerica (the Financial Expert). The Model Asset Allocation Portfolio produced under the Program with respect to a particular participant, therefore, will reflect the application of the methodologies developed by the Financial Expert to the Designated Investments, taking into account individual participant 8 data, as provided by the participant, Plan sponsor or recordkeeper. SunAmerica Opinion. http://www.dol.gov/ebsa/programs/ori/advisory2001/2001-09A.htm 28. As a result of Financial Engines infringement of the 600 Patent, GRQ has suffered monetary damages in an amount not yet determined, and will continue to suffer damages in the future unless Financial Engines infringing activities are enjoined by this Court. 29. Unless a permanent injunction is issued enjoining Financial Engines and its agents, servants, employees, attorneys, representatives, affiliates, and all others acting on their behalf from infringing the 600 Patent, GRQ will be irreparably harmed. COUNT II INFRINGEMENT OF U.S. PATENT NO. 8,229,825 BY FINANCIAL ENGINES 30. Plaintiff GRQ incorporates paragraphs 1 through 29 as if set forth herein. 31. Financial Engines has, pursuant to 35 U.S.C. 271, infringed and continues to infringe the 825 Patent in the State of Texas, in this judicial district, and/or elsewhere in the United States by, among other things, making, using, selling, offering to sell, and/or importing, without license, directly or through its customers, advisory services, such as its Income+ product. 32. Financial Engines products and services fall within the scope of at least claim 1 of the 825 Patent, as evidenced by Financial Engines and its Income+ product description. For example, Financial Engines Income+ product provides a method of providing distribution recommendation from an investment account to an investor. http://corp.financialengines.com/individuals/managed_service_retirement_income.html# 9 33. For example, Income+ uses software to receive information about the investments in at least one investment account for an investor and stores the information in a computerized database. http://corp.financialengines.com/individuals/managed_service_retirement_income.html# 34. For example, Income+ also provides a computer program to process the information received to arrive at a distribution recommendation such that the algorithm contained in the program used to arrive at the distribution recommendation is originated or approved by at least one person who is independent of at least one person who receives variable fees or profits depending on the decision of the at least one investor so that the ability of the at least one person who receives variable fees or profits depending on the decision of the at least one investor to self-deal in providing the distribution recommendation is eliminated. In other words, Financial Engines is independent from the funds being recommended. 10 http://corp.financialengines.com/individuals/managed_service_retirement_income.html# 35. Additionally, Income+ then transmits the distribution recommendation by the fund provider who receives fees or profits depending on the distribution decision of the at least one investor, or by at least one other person in combination with the fund provider who receives variable fees or profits depending on the distribution decision of the at least one investor. 36. As specified earlier, Financial Engines complies with the SunAmerica Opinion which states: According to your submission, while SunAmerica will be making the Program, as well as other services, available to Plans, the Model Asset Allocation Portfolios offered under the Program will, in fact, be the product of a computer program applying a methodology developed, maintained and overseen by a financial expert who is independent of SunAmerica (the Financial Expert). The Model Asset Allocation Portfolio produced under the Program with respect to a particular participant, therefore, will reflect the application of the methodologies developed by the Financial Expert to the Designated Investments, taking into account individual participant data, as provided by the participant, Plan sponsor or recordkeeper. SunAmerica Opinion. http://www.dol.gov/ebsa/programs/ori/advisory2001/2001-09A.htm 11 37. As a result of Financial Engines infringement of the 825 Patent, GRQ has suffered monetary damages in an amount not yet determined, and will continue to suffer damages in the future unless Financial Engines infringing activities are enjoined by this Court. 38. Unless a permanent injunction is issued enjoining Financial Engines and its agents, servants, employees, attorneys, representatives, affiliates, and all others acting on their behalf from infringing the 825 Patent, GRQ will be irreparably harmed. PRAYER WHEREFORE, GRQ incorporates each of the allegations in paragraphs 1 through 38 above and respectfully requests that this Court enter: 1. A judgment in favor of GRQ that Financial Engines has infringed, directly or indirectly, the 600, and 825 Patents; 2. A permanent injunction enjoining Financial Engines and its officers, directors, agents, servants, affiliates, employees, divisions, branches, subsidiaries, parents, and all others acting in concert or privity, with any of them, from infringing, directly, jointly, and/or indirectly (by way of inducing and/or contributing to the infringement) the 600, and 825 Patents; 3. A judgment and order requiring Financial Engines to pay GRQ its damages, costs, expenses, and prejudgment and post-judgment interest for Financial Engines infringement of the 600, and 825 Patents Patent as provided under 35 U.S.C. 284; 5. A judgment and order finding that this is an exceptional case within the meaning of 35 U.S.C. 285, and awarding to GRQ its reasonable attorney fees; and 6. Any and all other relief to which GRQ may show itself to be entitled. DEMAND FOR JURY TRIAL Plaintiff demands trial by jury on all issues triable to a jury. 12 Dated: August 8, 2014 Respectfully submitted, By: /s/ Neal Massand Neal G. Massand Texas Bar No. 24039038 nmassand@nilawfirm.com Timothy T. Wang Texas Bar No. 24067927 twang@nilawfirm.com Stevenson Moore V Texas Bar No. 24076573 smoore@nilawfirm.com Ni, Wang & Massand, PLLC 8140 Walnut Hill Ln., Ste. 310 Dallas, TX 75231 Telephone: 972.331.4600 Fax: 972.314.0900 ATTORNEYS FOR PLAINTIFF GRQ INVESTMENT, LLC
In the Matter of Calpa Products Company, Bankrupt. Betty G. Zion, Ruth Zion Bressler and Victor A. Bressler, Co-Executors Under the Will of Peter P. Zion, Esquire, Deceased, 411 F.2d 1373, 3rd Cir. (1969)