UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Case Nos. 08-56536, 08-56538

____________________________________
DENISE P. EDWARDS,
Individually and on Behalf of All Others Similarly Situated,
Plaintiff/Appellant,
v.
THE FIRST AMERICAN CORPORATION, and
FIRST AMERICAN TITLE INSURANCE COMPANY,
Defendants/Appellees.
____________________________________
_____________________________________________________________

BRIEF OF NATIONAL ASSOCIATION OF INDEPENDENT LAND

TITLE AGENTS AS AMICUS CURIAE IN SUPPORT OF
PLAINTIFF-APPELLANT AND IN FAVOR OF REVERSAL
_____________________________________________________________

Gregory W. Happ* Mary Dryovage

Ohio Supreme Court Reg. No. 0008538
Texas Supreme Court Reg.No. 0936500
238 West Liberty Street
Medina, OH 44256
Telephone (330) 723-7000
Facsimile (330) 725-8804
e-mail gregoryhapp@msn.com
Cal. State Bar No. 112551
Law Offices of Mary Dryovage
600 Harrison Street, Suite 120,
San Francisco, CA 94107
Telephone: (415) 593-0095
Fax. (415) 593-0096
e-mail: mdryovage@igc.org

Attorneys for Amicus Curiae,

National Association of Independent Title Agents

*Counsel of record. Petition for Admission pending.

 TABLE OF CONTENTS

I. INTERESTS OF AMICUS………………………………….. 1

II. ARGUMENT………………………………………………..... 2

A. ESTABLISHMENT OF THE TITLE INDUSTRY

AND FORMS OF TITLE INSURANCE……………………… 2

B. THE GROWTH OF THE TITLE INSURANCE

INDUSTRY AND THE CONSOLIDATION OF
TITLE INSURANCE UNDERWRITERS……………………. 3

C. THE DEVELOPMENT OF “REVERSE COMPETITION” …... 4

D. THE GROWTH OF AN ANTI-COMPETITIVE

TITLE INSURANCE INDUSTRY THROUGH
“BUSINESS ARRANGEMENTS”………………………….. 7

E. THE GROWTH OF “CAPTIVE TITLE

INSURANCE AGREEMENTS” -- ANOTHER
REFERRAL SCHEME ……………………………………. 9

F. AN EXAMPLE OF HOW “CAPTIVE

TITLE INSURANCE AGREEMENTS”
HARM CONSUMERS ……………………………………. 12

III. CONCLUSION……………………………………………… 15

Certificate of Compliance…………………………………… 16

FRAP 26.1 Disclosure…...…………………………………… 17

Certificate of Service………………………………………… 20

ii
 TABLE OF AUTHORITIES

CASES:

Carter v. Welles-Bowen Realty, Inc.,

553 F.3d 979 (6th Cir. 2009) 11, 12

Edwards v. First American Corp.,

517 F. Supp. 2d. 1199, 1203 (C.D. Cal. 2007) 11

Kahrer v. Ameriquest Mortgage Co.,

418 F. Supp. 2d 748 (W.D. Pa. 2006) 8, 11, 12

Robinson v. Fountainhead Title Group Corp.,

447 F. Supp. 2d 478 (D. Md. 2006) 11

STATUTES:

12 U.S.C. § 2607 (c)(4) 7

12 U.S.C. § 2607 (a) 7

12 U.S.C. § 2607 (b) 7

OTHER AUTHORITIES:
Birnbaum, Birny, Report to the California
Insurance Commissioner, “An Analysis of
Competition in the California Title
Insurance and Escrow Industry,” December 2005 6

Jack Guttentag, “Real Estate Settlement

Services Take Bite Out of Borrowers,”
Inman News, September 6, 2005 5

The Pricing and Marketing of Insurance:

A Report of the Department of Justice to
the Task Group on Antitrust Immunities, January 1977 5

Nelson Lipshutz, The Regulatory Economics

iii
of Title Insurance, Praeger Press, Westport, CT, 1994 6

Ohio State Bar Association Report, Vol. 59, No. 48,

Section One, December 15, 1986, p. 1968. 14

Title Insurance Cost and Competition: Before the

House Committee on Financial Services
Subcommittee on Housing and Community
Opportunity, 109th Cong., (2006) (testimony of
J. Robert Hunter, Director of Insurance, Consumer
Federation of America) 5

“Chapter XII The Title Assurance and

Conveyance Industries” of Real Estate Closing
Costs, RESPA, Section 14a, Volume II Settlement
Performance Evaluation prepared by Peat, Marwick,
Mitchell and Co. for the Department of Housing
and Urban Development, October 1980 5

State of California Department of Insurance

Bulletin 80-12, December 24, 1980, Subject:
Insurance Code Section 12404 - Unlawful Rebates
Title Insurance Advisory Committee Final Report
to the State Board of Insurance, September 1986 5

INTERNET SOURCES:

American Land Title Association, “Preliminary

Third Quarter 2008 Market Share -
Family-Company Summary” at
http://www.alta.org/industry/08-
03/Marketshare3rdQuarterfamcosummary.xls
(last visited March 11, 2009) 4

American Land Title Association, Title Insurance:

A Comprehensive Overview, at
http://www.alta.org/about/TitleInsuranceOverview.pdf
(last visited March 11, 2009) 13

iv
 I. INTERESTS OF AMICUS

Amicus Curiae National Association of Independent Land Title

Agents (NAILTA) is a national trade association consisting of state-licensed

independent title insurance agents and state-licensed title insurance agencies,

with associate membership extended to title insurance underwriters and title

insurance industry stakeholders from across the United States. Amicus’ sole

interest in this case is in the application of 12 U.S.C. §§ 2601, et seq. in

order to promote and protect fair competition in the title insurance industry.

Amicus believes that this brief will assist the Court in understanding the

complexities of the title insurance industry and why anti-competitive

practices such as that alleged in this case are harmful to our industry and the

general public.

NAILTA is a non-profit, member-supported national trade

organization working to protect the transparency, credibility and sanctity of

the land title process. As part of that mission, NAILTA represents the

interest of those industry stakeholders, both independent and affiliated alike,

who have been negatively impacted by the rise of anti-competitive business

practices in the title insurance industry. NAILTA works to protect the

independence of the title insurance industry from its referral sources and the
Association advocates for fair competition in the industry and the removal of

conflicts of interest from the real estate process.

The issues presented by NAILTA are relevant to the current matter as

it is clear to Amicus that the practices alleged in this case restrict

competition, reduce the transparency of both the title insurance industry and

the real estate process, and undermine the consumer’s choice of title

insurance provider.

Amicus supports reversal of two District Court Orders which denied

the Appellant’s attempt at class certification due to the tremendous anti-

competitive impacts employed by the Appellees on the land title insurance

industry, the independent land title agents represented by Amicus NAILTA,

and the title insurance consumers (i.e., homeowners, buyers and borrowers).

II. ARGUMENT

A. ESTABLISHMENT OF THE TITLE INSURANCE INDUSTRY AND FORMS

OF TITLE INSURANCE

In 1876 the first title insurance company was formed in Philadelphia,

Pennsylvania. This company was the first to issuance guarantees of title

with specific indemnity clauses. From this early “Philadelphia System”

arose the modern title insurance industry.

In simplest terms, title insurance is a contract of indemnity that is

designed to protect purchasers or mortgage lenders from unforeseen loss due

2
to title defects such as: liens or encumbrances upon, defects in, or the

unmarketability of the title to real property for which the policy is issued.

These contracts of indemnity have evolved into two types of recognized title

insurance policies: (i) those policies issued to protect buyers of real estate

(Owner’s Policy of Title Insurance); and (ii) those policies issued to lenders

to protect the mortgage’s title, which secures the loan (Loan Policy of Title

Insurance).

The fundamental difference between land title insurance versus other

types of casualty insurance (i.e., homeowners, automobile and commercial

general liability insurance) has always been the commitment of the title

insurance industry to seek “risk prevention” over “risk assumption.” The

casualty insurance approach of “risk assumption” assures financial

indemnity through a pooling of risks for losses arising out of an unforeseen

future event such as death or accident. The title insurance approach of “risk

prevention” has as its goal the elimination of risks and the prevention of

losses caused by defects in title arising out of events that occurred in the

past.

B. THE GROWTH OF THE TITLE INSURANCE INDUSTRY AND THE

CONSOLIDATION OF TITLE INSURANCE UNDERWRITERS

Prior to World War II, the growth of the title insurance industry had

been limited to local and regional title insurance underwriters. After World

3
War II the enormous demand and expansion of home ownership produced an

equally expanded mortgage market which in turn fostered a corresponding

growth in the demand for title insurance.

Starting in the 1960’s the title insurance industry saw the emergence

of national title companies which caused a decline in the local and regional

title insurance underwriters. Combinations, consolidation, and mergers of

title insurance underwriters in the national title insurance industry have left

the industry with only four underwriter groups controlling over 92 percent of

all title insurance business nationwide. 1 One of these groups includes the

Appellee, First American Title Insurance Company, the nation’s second

largest title insurance underwriter. This consolidation has greatly impacted

competition among title insurance underwriters and has impacted the quality

of the product and service being provided by the title insurance underwriters.

C. THE DEVELOPMENT OF “REVERSE COMPETITION”

At least by the 1970’s, a recognized marketing trend in the title

industry developed where the providers of title insurance marketed their

products not to the ultimate consumer, who either owned or was buying a

1
American Land Title Association, “Preliminary Third Quarter 2008 Market
Share - Family-Company Summary” at http://www.alta.org/industry/08-
03/Marketshare3rdQuarterfamcosummary.xls (last visited March 11, 2009).

4
home, but to third parties involved in the real estate transactions (i.e., real

estate agents, mortgage brokers, lenders and developers).

Marketing to these third parties for the issuance of title insurance

became the dominant source of business for title insurance because of the

third party’s access to the real estate transaction and that person’s general

ability to refer or direct the consumer to a particular title insurance provider.

The term “reverse competition” was applied to this title insurance industry

marketing practice. 2

The issue of the high market consolidation in the title insurance

industry caused by “reverse competition” has been well documented by

numerous studies and articles. 3 The common theme in each of these studies

2
See The Pricing and Marketing of Insurance: A Report of the Department
of Justice to the Task Group on Antitrust Immunities, January 1977, pages
250-274.
3
Title Insurance Cost and Competition: Before the House Committee on
Financial Services Subcommittee on Housing and Community Opportunity,
109th Cong., (2006) (testimony of J. Robert Hunter, Director of Insurance,
Consumer Federation of America) see also, Jack Guttentag, “Real Estate
Settlement Services Take Bite Out of Borrowers,” Inman News, September
6, 2005; see also, The Pricing and Marketing of Insurance: A Report of the
Department of Justice to the Task Group on Antitrust Immunities, January
1977, pages 250-274; “Chapter XII The Title Assurance and Conveyance
Industries” of Real Estate Closing Costs, RESPA, Section 14a, Volume II
Settlement Performance Evaluation prepared by Peat, Marwick, Mitchell
and Co. for the Department of Housing and Urban Development, October
1980; State of California Department of Insurance Bulletin 80-12, December
24, 1980, Subject: Insurance Code Section 12404 - Unlawful Rebates; Title

5
and articles is the lack of competition that exists in the title insurance

industry and the negative impact “reverse competition” has on title insurance

underwriters, title insurance agencies, the title insurance consumers and the

third-party attorneys and lending institutions involved in a real estate

transaction.

Due to the development and dominance of “reverse competition” in

the title insurance industry, most title insurance underwriters and title

insurance agencies compete with other underwriters and agencies for the

attention of these third-party revenue-generating referral sources (i.e., real

estate agents, mortgage brokers, lenders and developers). This competition

for “referral sources” unfortunately led to widespread abuses and illegal

referral activities in the title insurance industry. This, in turn, led to the

enactment of the Real Estate Settlement Procedures Act of 1974, Pub. L. No.

93-533, 88 Stat. 1724 (1974) ("RESPA"), 12 U.S.C. §§ 2601, et seq.

Section 8 of RESPA prohibited kickbacks and unearned fees. In

relevant part, the statute states the following:

Insurance Advisory Committee Final Report to the State Board of Insurance,

September 1986; Nelson Lipshutz, The Regulatory Economics of Title
Insurance, Praeger Press, Westport, CT, 1994, page 5; Birnbaum, Birny,
Report to the California Insurance Commissioner, “An Analysis of
Competition in the California Title Insurance and Escrow Industry,”
December 2005, page 57.

6
 (a) Business referrals

No person shall give and no person shall accept any fee,

kickback, or thing of value pursuant to any agreement or
understanding, oral or otherwise, that business incident to
or a part of a real estate settlement service involving a
federally related mortgage loan shall be referred to any
person.

(b) Splitting charges

No person shall give and no person shall accept any

portion, split, or percentage of any charge made or
received for the rendering of a real estate settlement
service in connection with a transaction involving a
federally related mortgage loan other than for services
actually performed. 4

D. THE GROWTH OF AN ANTI-COMPETITIVE TITLE INSURANCE

INDUSTRY THROUGH “BUSINESS ARRANGEMENTS”

By the 1970’s the title insurance industry saw the development of

another business marketing activity involving title insurance agency

business arrangements with their third-party “referral sources” (i.e. real

estate brokers, real estate agents, mortgage brokers, and mortgage lenders).

These business arrangements became known as “affiliated business

arrangements” and “controlled business arrangements.”

These “arrangements” involved the “referral source” becoming a part

owner of a title insurance agency who participated directly in the profits of

4
12 U.S.C. § 2607(a)-(b).

7
the agency. Often the referral source had no active participation in the

agency’s business but due to the “referral” of business to the title insurance

agency, of which it was a part, the referral source received a significant

profit. The profit in some instances was determined from the gross income

and not net profits. Questions began to be raised whether or not these

“arrangements” were nothing more than a scheme to circumvent Section § 8

of RESPA.

“In the years following RESPA's enactment, however, it became clear

that the provision "failed to account for 'controlled business
arrangements' . . . whereby an entity could provide a referral without
the direct payment of a referral fee." 5 Indeed, in 1982, a House
Committee Report noted that such practices could result in harm to
consumers beyond an increase in the cost of settlement services:

‘[In controlled business arrangements] the advice of the person

making the referral may lose its impartiality and may not be
based on his professional evaluation of the quality of service
provided if the referror or his associates have a financial interest
in the company being recommended. . . . [Because the
settlement service industry] almost exclusively rel[ies] on
referrals … the growth of controlled business arrangements
effectively reduce the kind of healthy competition generated by
independent settlement service providers.’” 6

5
Edwards v. First American Corp., 517 F. Supp. 2d. 1199, 1203 (C.D. Cal.
2007).
6
Carter v. Welles-Bowen Realty, Inc., 553 F.3d 979, 2009 U.S. App. Lexis
1288 (6th Cir. 2009) (citing Kahrer v. Ameriquest Mortgage Co., 418 F.
Supp. 2d 748 (W.D. Pa. 2006) (citing H.R. Rep. No. 97-532, at 52 (1982)
(emphasis added))).

8
These “affiliated business arrangements” and “controlled business

arrangements” were designed to control the referral of business and by their

very nature were anti-competitive. These arrangements are currently

permitted under RESPA but only under tightly-controlled circumstances.

The subject transaction between First American and Tower City is not such

an arrangement.

E. THE GROWTH OF “CAPTIVE TITLE INSURANCE AGREEMENTS” --

ANOTHER REFERRAL SCHEME.

Similar to title insurance agencies establishing “affiliated business

arrangements” or “controlled business arrangements” to exclusively secure

the “business” of a “referral source,” the title insurance industry has also

seen the growth of title insurance underwriters utilizing “Captive Title

Insurance Agreements” (hereafter “CTIA” or “CTIAs”) to glean market

share within the title insurance industry to the exclusion of other title

insurance underwriters. 7 The importance of these captive agreements to the

title insurance consumer is instantly apparent considering that, in a real

estate purchase or refinance, it is the title insurance agency and not the title

insurance consumer involved that makes the referral to the title insurance

underwriter.

7
Birnbaum, Birny, Report to the California Insurance Commissioner, “An
Analysis of Competition in the California Title Insurance and Escrow
Industry,” December 2005, page 60.

9
 A CTIA occurs when a title insurance underwriter purchases a

financial interest in a previously independent title insurance agency, who

may already represent multiple title insurance underwriters, and who has a

significant share of a particular localized title insurance market. As part of

the purchase transaction, the title insurance underwriter is referred all or

substantially all of the title insurance agency’s title business to the exclusion

of all other title insurance underwriters who, prior to the agreement, received

referral of title business from the now “captive” title insurance agency.

Prior to the acquisition of interest, the independent title insurance

agent or agency had the power to exercise its independent judgment as to

which title insurance underwriter was best suited for a particular real estate

transaction, i.e. land purchase or refinancing. After the acquisition of

interest, the power of any purchased title insurance agent or agency to

exercise an autonomous choice of title insurance underwriter is eliminated.

In most cases, it is the discerning title insurance agent who is in the

best position to provide insight and advice to title insurance consumers as to

the best title insurance underwriter for a particular transaction. However,

CTIAs remove the choice of title insurance underwriter from competitive

consideration and thereby negatively impact a title insurance consumer’s

ability to meaningfully participate in his or her real estate settlement.

10
 A title insurance underwriter’s use of CTIAs has the same effect of

“reducing competition between settlement service providers” as that of a

“controlled business arrangement.”

“Generally speaking, RESPA sought ‘to address Congress'

concerns over "controlled business arrangements," whereby real
estate settlement business is referred between two affiliated
entities, which RESPA had not previously addressed. Under
such circumstances, one entity is able to provide a benefit to its
affiliate without the direct payment of a referral fee which …
could result in harm to consumers beyond an increase in
settlement charges . . . . Specifically, … the advice of the
person making the referral may lose its impartiality and may
not be based on his professional evaluation of the quality of
service provided if the referror or his associates have a financial
interest in the company being recommended. In addition, since
the real estate industry is structured so that settlement service
providers do not compete for a consumer's business directly,
but almost exclusively rely on referrals from real estate brokers,
lenders or their associates for their business, the growth of
controlled business arrangements effectively reduce the kind of
healthy competition generated by independent settlement
service providers.’

“‘To address the negative effects on the real estate industry

caused by these controlled relationships, "injury in a RESPA
case can be shown by harm other than allegations of
overcharges," as "the alleged § 8(a) violation presents the
possibility for other harm, including a lack of impartiality in the
referral and a reduction of competition between settlement
service provide[r]s.’" 8

8
Carter v. Welles-Bowen Realty, Inc., 553 F.3d 979, at 987, 2009 U.S. App.
Lexis 1288 (6th Cir. 2009) (citing Kahrer, supra at 754 (citing H.R. Rep.
No. 97-532, at 52 (1982) (emphasis added))), (citing Robinson v.
Fountainhead Title Group Corp., 447 F. Supp. 2d 478, 488-89 (D. Md.
2006).

11
 At issue in the present case is the selection of a title insurer once the

referral is made. Upon being referred to a title insurance agency, the title

insurance consumer is a captive of the title insurance agency’s choice of title

underwriter. The CTIA obscures the opportunity of a homeowner or

borrower to have a meaningful choice of a title insurance underwriter and

thereby the quality of the product or service each offers.

F. AN EXAMPLE OF HOW “CAPTIVE TITLE INSURANCE AGREEMENTS”

HARM CONSUMERS.

CTIAs remove the necessary independence and impartiality of the

title insurance agency in the title insurance transaction. The title insurance

agency’s professional evaluation of the quality of service offered to the

consumer is clouded by the financial rewards of the CTIA professional. 9

This loss of professional evaluation also results in the title insurance

consumer being denied a meaningful choice in which title insurance

underwriting standards are to be employed for the issuance of the title

insurance policy. One feature of the growing variance among title insurance

underwriter standards is demonstrated by the rising indifference by title

insurance underwriters to a basic industry standard of “risk avoidance.”

In order to promote risk prevention, a core function of the issuance of

9
See Carter supra at 987 (citing Kahrer, 418 Fed. Supp. 2d. at 754 (quoting
H.R. Rep. No. 97-532, at 52) (emphasis added).

12
title insurance has historically been a search or examination of the public

land records for title defects prior to issuance of title insurance. This title

searching or examining process prevents title risks by the discovery and

possible removal of any title defects prior to issuance of a title insurance

policy. During the title search, title companies find and fix problems with

the title in 25 percent of transactions – usually unbeknownst to the title

insurance consumer or lender. 10

Often it is the variance in the title insurance underwriter’s title search

standards that marks the difference in the quality of the risk avoidance being

performed. Unfortunately, in recent years the standards for a land title

search or title examination demanded by some title insurance underwriters,

prior to the issuance of title insurance, has been lessened due to the rising

cost of securing title insurance market share and the necessity to compensate

the referrer of the title insurance business, whether as CTIAs or other anti-

competitive practices that result from reverse competition.

10
American Land Title Association, Title Insurance: A Comprehensive
Overview, pg. 2 at http://www.alta.org/about/TitleInsuranceOverview.pdf
(last visited March 11, 2009).

13
 In a cost saving measure some national title insurance underwriters

require only a “current owner” search of title in residential transactions,

meaning that the title abstractor/examiner is required by the title insurance

underwriter to search only the current owner’s title back to the moment that

owner took title, thereby omitting liens and other encumbrances that would

have attached to the interest held by prior owners in title. This is in contrast

to other title insurance underwriters requirements for the customary “full

title search” of forty plus years beginning from the deed or “root” of the

current owner’s title. Only through a “full title search” and a detailed listing

of encumbrances, easements and restrictions in a policy can an owner know

the status of his title prior to the issuance of the title insurance policy. 11

Title insurance consumers are often unaware of this variance in the

standards of one title insurance underwriter versus another and the impact

this variance has on the quality of the final title insurance product. When a

title insurance agency commits itself through a CTIA to a single title

insurance underwriter, it denies a meaningful and important choice of

11
Ohio State Bar Association Report, Vol. 59, No. 48, Section One,
December 15, 1986, p. 1968. The Council authorized the following
Comment in lieu of the OSBA Title Standard 2.2 regarding land title
searches: "There is nothing in the Ohio Marketable Title Act that entitles a
title examiner to rely upon a simple forty year search period. He or she must
be aware of the several exemptions in the Act that are not barred by the mere
passage of 40 years.”

14
service to the title insurance consumer. In these cases, that choice means the

difference between eliminating risk and assuming it. For unsuspecting title

insurance consumers, that choice could lead to years of real estate-related

litigation and uncertainty.

III. CONCLUSION

The ultimate result of the “exclusivity” generated by a CTIA is the

damage and harm to the title insurance consumers who were denied a

meaningful choice between the standards offered by various title insurance

underwriters. Appellant clearly represents a class of consumers that was

negatively impacted and damaged by the “exclusive” referral paid for by

Appellee through its CTIA with Tower City Title Agency.

For the foregoing reasons, the district court’s judgment should be

reversed on both Orders currently subject to this Court’s review.

Respectfully submitted,

Gregory W. Happ* Mary Dryovage

Ohio Supreme Court Reg. No. 0008538 Cal. State Bar No. 112551
Texas Supreme Court Reg.No. 0936500 Law Offices of Mary Dryovage
238 West Liberty Street 600 Harrison Street, Suite 120,
Medina, OH 44256 San Francisco, CA 94107
Telephone (330) 723-7000 Telephone: (415) 593-0095
Facsimile (330) 725-8804 Fax. (415) 593-0096
e-mail gregoryhapp@msn.com e-mail: mdryovage@igc.org
Attorneys for Amicus Curiae,
National Association of Independent Title Agents
*Counsel of record. Petition for Admission pending.

15
 CERTIFICATE OF COMPLIANCE

1. This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because this brief contains 2,786 words, excluding the

parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App.P. 32 (a)(6)

because this brief has been prepared in a proportionally spaced

typeface using Microsoft Word 2003 in Times New Roman, 14-point

font.

DATED: March 11, 2009

By:_/s/ Gregory W. Happ

Gregory W. Happ
Attorney for Amicus Curiae
National Association of Independent
Land Title Agents (NAILTA)

16
 DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER
ENTITIES WITH A DIRECT FINANCIAL INTEREST IN
LITIGATION

Pursuant to FRAP 26.1, amicus National Association of Independent

Land Title Agents (“NAILTA”) a 501(c)(6) non-profit corporation

incorporated in the Commonwealth of Pennsylvania, makes the following

disclosure:

1. NAILTA is not a publicly held corporation or other publicly

held entity.

2. NAILTA has no parent corporations.

3. No publicly held corporation or other publicly held entity owns

10% or more of NAILTA.

4. NAILTA is a national trade association and a list of all

members are provided hereto and incorporated herein by
reference.

/s/ Gregory W. Happ March 11, 2009

Gregory W. Happ
Attorney at Law

17
 MEMBERSHIP LIST - NAILTA

Brandywine 4 Building
3 Dickinson Drive
Suite 204
Chadds Ford, PA 19317

Anthony L. Affatato, Sr. Freehold, NJ

Frank Carnesi Freehold, NJ
Chuck Rosenblum Freehold, NJ
Elizabeth M. Crowe Freehold, NJ
David Dwyer Philadelphia, PA
Allen Exelby Parsippany, NJ
Gregory W. Happ Medina, OH
Karin T. Hesse Carnegie, PA
Thomas F. Andres Carnegie, PA
Kevin M. Hanley Carnegie, PA
Kim Himmel Massillon, OH
Robert B. Holman Cleveland, OH
Ian Katz Warminster, PA
Francis P. Kelly Reading, PA
Dallys Novarina Blue Bell, PA
John A. Novarina Blue Bell, PA
Charlene M. Ostroski Devon, PA
Linda Percoco Florham Park, NJ
Harvey A. Pollack Wauwatosa, WI
Charles W. Proctor, III Chadds Ford, PA
Maria O. Proctor Chadds Ford, PA
Colleen Curtin Chadds Ford, PA
Donna Grasso Chadds Ford, PA
Carl Samon Parsippany, NJ
Steve Squeo Dublin, OH
James J. Squeo Dublin, OH
Virginia Squeo Dublin, OH
Clanci Moloney-Nelson Dublin, OH
Dorothy E. Tittermary Philadelphia, PA
Matthew H. Waylett Hunt Valley, MD
Allison Waylett Hunt Valley, MD

18
NAILTA - Membership List (Continued)

Bill Grossmiller Hunt Valley, MD

Nelson Schwartz Hunt Valley, MD
Lisa Myers Hunt Valley, MD
Dave Wierzbicki West Lawn, PA
Francine D’Elia Wirsching Blue Bell, PA
David B. Wirsching Blue Bell, PA
Betsy R. McCord Dayton, OH
Teresa Ganka Dayton, OH

19
 CERTIFICATE OF SERVICE

I hereby certify that on the 12th day of March, 2009, I electronically filed the

foregoing with the Clerk of the Court for the United States Court of Appeals

for the Ninth Circuit by using the appellate CM/ECF system.

I certify that all participants in the case are registered CM/ECF users and

that service will be accomplished by the appellate CM/ECF system.

/s/ Mary Dryovage

Mary Dryovage
Cal. State Bar No. 112551
Law Offices of Mary Dryovage
Harrison Street, Suite 120,
San Francisco, CA 94107
Email: mdryovage@igc.org

20