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`Case 1:21-cv-06014-AJN Document 9 Filed 10/06/21 Page 1 of 5Case 1:21-cv-06014-AJN Document 10 Filed 10/07/21 Page 1 of 5
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`Chrysler Center
`666 Third Avenue
`New York, NY 10017
`212 935 3000
`mintz.com
`
`Michael R. Graif
`212 692 6287
`mrgraif@mintz.com
`
`October 6, 2021
`Via ECF
`
`The Honorable Alison J. Nathan
`United States District Court
`Southern District of New York
`40 Foley Square, Room 2102
`New York, NY 10007
`
`Re: Sellas Life Sciences Group, Inc. et al. v. John Doe, No. 1:21-cv-06014-AJN
`
`Dear Judge Nathan:
`
`Pursuant to the Court’s Notice of Initial Pretrial Conference (Dkt. No. 8), Plaintiffs
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`Sellas Life Sciences Group, Inc. (“Plaintiff Sellas” or “Sellas”) and Dr. Angelos M. Stergiou
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`(“Plaintiff Stergiou” or “Stergiou”) (collectively, “Plaintiffs”) submit this Joint Letter and
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`Proposed Civil Case Management Plan.
`
`I.
`
`Nature of the Case and Procedural History
`
`This case involves Defendant John Doe’s willful infringement of a copyrighted
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`professional headshot of Plaintiff Stergiou and Doe’s corresponding defamatory
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`statements of both Plaintiffs Stergiou and Sellas. Plaintiff Stergiou is the CEO, founder,
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`and President of Sellas, a successful, publicly traded late-stage clinical biopharmaceutical
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`company. Plaintiff Sellas owns all right, title, and interest in the copyrighted image of
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`Stergiou (the “Copyright”). Defendant Doe is an anonymous user on third-party Yahoo!
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`Finance’s online forum dedicated to Plaintiff Sellas (“SLS Message Board”). Doe created
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`a Yahoo! account and/or alias in Plaintiff Stergiou’s name to impersonate Plaintiff Stergiou
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`in his posts and interactions on the SLS Message Board (“Impersonator Account” or
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`“Impersonator Posts”). Doe unlawfully copied the Copyright for the Impersonator
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`BOSTON LONDON LOS ANGELES NEW YORK SAN DIEGO SAN FRANCISCO WASHINGTON
`MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C.
`
`10/7/21
`
`
`
`
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`Case 1:21-cv-06014-AJN Document 9 Filed 10/06/21 Page 2 of 5Case 1:21-cv-06014-AJN Document 10 Filed 10/07/21 Page 2 of 5
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`MINTZ
`
`October 6, 2021
`Page 2
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`Account’s “profile picture.” Defendant utilized the Impersonator Account to post false,
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`misleading, and/or threatening statements of and concerning Plaintiffs.
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`Plaintiffs attempted to resolve this matter privately by reporting the Impersonator
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`Account and Posts to Yahoo! It appears Yahoo! then notified Defendant Doe as to his
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`infringement. Doe then knowingly made material modifications to the Copyright, likely in
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`an attempt to evade infringement. Yet, Doe’s modifications created an unauthorized
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`derivative work. Each and every Impersonator Post—both with the Copyright and the
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`derivative work—constitute separate acts of copyright infringement for which Plaintiffs are
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`entitled to relief.
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`Plaintiffs were unable to ascertain Doe’s identity before filing suit. As a result,
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`Plaintiffs moved for leave to serve expedited discovery to determine Defendant’s name
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`and address from Yahoo! Finance through a lawful subpoena (“Letter Motion”). See, e.g.,
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`Dkt. No. 4.
`
`On July 21, 2021, this Court denied without prejudice the Letter Motion and
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`ordered Plaintiffs to show cause “why their claims for copyright infringement should not
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`be dismissed because the allegedly infringing conduct is fair use as a matter of law.” Dkt.
`
`No. 5 at 2 (citations omitted). Plaintiffs responded to the Court’s show cause order and
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`detailed how Doe’s conduct cannot be fair use, mainly: (1) Doe’s secondary works were
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`not transformative, for they served the same identification purposes as the Copyright and
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`(2) to the extent Doe had a critical or parody purpose, it was of Plaintiffs, and not the
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`Copyright. See Dkt. No. 7.
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`
`
`
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`Case 1:21-cv-06014-AJN Document 9 Filed 10/06/21 Page 3 of 5Case 1:21-cv-06014-AJN Document 10 Filed 10/07/21 Page 3 of 5
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`MINTZ
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`October 6, 2021
`Page 3
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`i.
`
`Plaintiffs Renew Their Letter Motion to Serve Expedited Discovery and
`Request Adjournment of the Initial Pretrial Conference Until After
`Defendant Doe is Identified and Served
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`Plaintiffs respectfully renew their Letter Motion to serve expedited discovery to
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`identify and serve Defendant John Doe. Plaintiffs also request the adjournment of the
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`Initial Pretrial Conference until after Doe is identified and lawfully served. This will ensure
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`Defendant Doe participates in crafting the Proposed Civil Case Management Plan, and
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`will enable the parties to meaningfully engage in settlement discussions before involving
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`the Court. Put another way, an adjourned Initial Pretrial Conference will proceed more
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`effectively and expeditiously in front of the Court and enable participation from both sides.
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`With this in mind, Plaintiffs acknowledge that their Proposed Civil Case
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`Management Plan and Joint Letter—as requested and required under Rule 2(B) of the
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`Court’s Individual Rules of Practice—likely will differ once Defendant Doe is involved.
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`II.
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`Jurisdiction and Venue
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`This Court has federal question subject matter jurisdiction pursuant to 28 U.S.C.
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`§§ 1331 and 1338 over Plaintiff Sellas’ copyright infringement claim. This Court has
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`supplemental jurisdiction over both defamation state law claims pursuant to 28 U.S.C §
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`1367(a) because those claims are substantially related to Plaintiff Sellas’ federal claim.
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`This Court has personal jurisdiction over Defendant because Defendant intentionally
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`directed his unlawful activities to the Southern District of New York. Venue is proper in
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`S.D.N.Y. pursuant to 28 U.S.C. § 1391(b) because a substantial part of the events or
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`omissions giving rise to this action occurred in this judicial district.
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`
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`
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`Case 1:21-cv-06014-AJN Document 9 Filed 10/06/21 Page 4 of 5Case 1:21-cv-06014-AJN Document 10 Filed 10/07/21 Page 4 of 5
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`MINTZ
`
`October 6, 2021
`Page 4
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`III.
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`Description of All Outstanding Motions and/or All Outstanding Requests to
`File Motions
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`As set forth above, Plaintiffs respectfully renew their Letter Motion to serve
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`expedited discovery to identify and serve Defendant John Doe (Dkt. No. 4).
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`IV.
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`Description of Any Discovery That Has Taken Place and That Which Will Be
`Necessary For the Parties to Engage In Meaningful Settlement Negotiations
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`No discovery has occurred.
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`V.
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`A List of All Prior Settlement Discussions
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`No settlement discussions have occurred.
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`VI.
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`The Estimated Length of Trial
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`At this time, Plaintiffs estimate a three-day trial.
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`VII. Any Other Information the Parties Believe May Assist This Court in
`Resolving the Action
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`None at this time.
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`VIII. The Parties Should Advise the Court if They Can Do Without a Conference
`Altogether
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`Plaintiffs cannot unilaterally suggest a Conference is unnecessary altogether.
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`However, as discussed above, Plaintiffs request the Court adjourn the Initial Pretrial
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`Conference until the Defendant is identified and served.
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`IX.
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`Compliance with Rule 1(E) of the Court’s Individual Rules of Practice for
`Requests for Adjournment
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`Plaintiffs hereby submit the following to comply with Rule 1(E):
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`1.
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`This is Plaintiffs first request for an adjournment of a conference. The Initial
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`Pretrial Conference is currently scheduled for October 15, 2021.
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`
`
`
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`Case 1:21-cv-06014-AJN Document 9 Filed 10/06/21 Page 5 of 5Case 1:21-cv-06014-AJN Document 10 Filed 10/07/21 Page 5 of 5
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`MINTZ
`
`October 6, 2021
`Page 5
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`2.
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`A Scheduling Order is not yet in place. Therefore, adjournment will not
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`impact any other scheduled dates.
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`3.
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`At this time, an adversary has not been identified. Thus, consent is
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`impossible.
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`4.
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` Without the benefit of Defendant Doe’s participation, Plaintiffs propose the
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`following three Friday afternoons for the Initial Pretrial Conference: January
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`7, 2022; January 14, 2022; and January 21, 2022.
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`Attorney for Plaintiffs Sellas Life Sciences Group, Inc. and Dr. Angelos M. Stergiou
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`The conference scheduled for October 15, 2021, is adjourned to
`January 14, 2022, at 3:15 p.m.
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`SO ORDERED.
`
`10/7/21
`
`
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