Free Statement of Material Facts - District Court of Connecticut - Connecticut

Case 3:01-cv-02143-SRU

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Filed 02/26/2004

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IN THE UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT ____________________________________________ : DAVID A. BECKERMAN, : Plaintiff, : v. : : M. HIDARY & CO., INC., : Defendant. : ___________________________________________ : M. HIDARY & CO., INC., : : Third-Party Plaintiff, : v. : : OFFICIAL STARTER, LLC, : : Third-Party Defendant. : ___________________________________________:

DOCKET NO. 3:01 CV 2143 (SRU)

February 26, 2004

LOCAL CIVIL RULE 56(a)1 STATEMENT OF MATERIAL FACTS AS TO WHICH THERE IS NO GENUINE ISSUE TO BE TRIED In accordance with local Rule 56(a)(1), the plaintiff hereby submits that there is no genuine issue to be tried as to the following facts: 1. On or about May 2, 1997, Starter entered into a licensing agreement with

Hidary that granted Hidary the right to use certain Trademarks of Starter in connection with its sale and distribution of apparel. Letendre Aff., Ex. A. 2. 2000. Id. The Agreement between Starter and Hidary was effective until December 31,

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3.

In June of 1998, the parties entered into an Addendum to the Licensing

Agreement that provided Hidary the right to use the Trademarks on active wear and school products. Letendre Aff., Ex. B. 4. Pursuant to the Licensing Agreement, Hidary agreed to pay Starter a royalty of

eight percent on all net sales by Hidary of authorized products bearing the Starter Trademarks. Letendre Aff., Ex. A. 5. On April 19, 1999, Starter filed for bankruptcy protection in the United States

Bankruptcy Court for the District of Delaware. Wyron Aff., Ex A. 6. On July 14, 1999, Starter entered into an Asset Purchase Agreement with an

entity known as New Starter, LLC and transferred some of Starter's assets to New Starter on the closing date of July 29, 1999. Letendre Aff., Ex. C. 7. The Asset Purchase Agreement was negotiated prior to confirmation of the

Bankruptcy Plan. Letendre Aff. ¶8. 8. The Asset Purchase Agreement was drafted with the intention that the

Purchaser would take over the license agreements, including the Hidary Agreement that is the subject of this action. Letendre Aff. ¶9. 9. During the negotiations, the Purchasers decided not to purchase the License

Agreements and asked that they be excluded from the sale. Letendre Aff. ¶10. 10. On or about July 14, 1999, the Bankruptcy Court approved the sale of certain of

Starter's assets to Official Starter, subject to the terms of the Asset Purchase Agreement. The license agreements were not included in the Asset Purchase Agreement, nor were the rights to collect royalties thereon. Letendre Aff., Ex. D.

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11.

Starter was permitted to use the trademarks for limited purposes following the

closing on the Asset Purchase Agreement, including selling inventory at the Outlet stores and collecting royalties on the licensing agreements. Letendre Aff. ¶12-14. 12. In order to permit Starter to sell inventory on hand and in process, the

bankruptcy court approved a Non-Exclusive License Agreement pursuant to which Starter could continue to use the trademarks for limited purposes. Letendre Aff., ¶13, Ex. E. 13. Prior to the Starter Bankruptcy, Soundview Licensing acted as Starter's agent

and was a party to the licensing agreement with Hidary. Subsequent to the bankruptcy filing, Soundview was discharged as Starter's agent. The Licensing Agency Agreement between Starter and Soundview Licensing was rejected by Order of the Bankruptcy Court effective July 29, 1999. Letendre Aff., ¶25. 14. After July 28, 1999, Hidary did not pay to Starter royalties on Starter Licensed

products. Letendre Aff. ¶23. 15. Hidary did not make any payments to Starter for advertising shortfalls due

under the License Agreement. Letendre Aff. ¶24. 16. On October 10, 2001, the right to collect royalties due on the licensing

agreements including the License Agreement with Hidary was transferred to David Beckerman in settlement of his claims against the bankruptcy estate. Wyron Aff., Ex. C, Letendre Aff., ¶20, Ex. F. 17. On November 14, 2001, Beckerman filed this lawsuit against Hidary, within five

weeks of being assigned the rights to collect royalties on the License Agreements. See Complaint.

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THE PLAINTIFF, DAVID A. BECKERMAN

By:

________________ J. Daniel Sagarin, CT 02489 David A. Slossberg, CT13116 Brian C. Fournier, CT 16272 Hurwitz & Sagarin, LLC 147 N. Broad Street Milford, CT 06460 Telephone: 203-877-8000

CERTIFICATE OF SERVICE This is to certify that on February 26, 2004, a true and correct copy of the foregoing was mailed, first class mail, postage prepaid, to: Evan S. Weintraub, Esq. Wachtel & Masyr, LLP 110 East 59th Street New York, NY 10022 Edward Labaton, Esq. Goodkind Labaton Rudoff & Sucharow LLP 100 Park Avenue New York, NY 10017 Elizabeth A. DiRusso Wallman & Dirusso, LLC Official Starter, LLC 750 Summer Street Stamford, CT 06901 _____________________________________ Brian C. Fournier

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