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 RULE 56(a)2 STATEMENT In accordance with local Rule 56(a)(2), the plaintiff hereby responds to the Defendant's Local Rule 56(a) statement as follows: 1. 2. 3. Admitted. Admitted. Admitted that the parties entered into an Addendum to the Licensing

Agreement in June of 1998 that provided Hidary the right to use the Trademarks on active wear and school products. 4. 5. Admitted. Plaintiff admits that Paragraph 18.1 of the Licensing Agreement provides

that "this Agreement will terminate automatically, without any notice or action being

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required of Licensor or Licensee, if Licensee or Licensor files a petition in bankruptcy or is adjudicated bankrupt or insolvent..." 6. 7. 8. 9. Admitted. Admitted. Admitted. Admitted that 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. 10. Denied. See Bankruptcy Order approving Asset Purchase Agreement,

Wyron Aff., ¶6, Ex. B, Letendre Aff., Ex. D. 11. Denied. Letendre Aff., Ex. C. The Trademark Assignment Agreement is

unsigned by the parties. 12. Admitted that on July 14, 1999, the Bankruptcy Court approved the Asset

Purchase Agreement and assignment of the Trademarks to New Starter. 13. 14. Admitted. Denied. See Bankruptcy Order approving Asset Purchase Agreement,

Wyron Aff., ¶6, Ex. B., Letendre Aff., Ex. D. 15. 16. Denied. Id. Admitted that Don Stapleton issued a memo dated August 8, 1999

concerning royalties. Plaintiff disputes Mr. Stapleton's authority to issue such a memo and the validity of the position taken therein concerning royalties. See Letendre Aff., ¶25, Ex. G..

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17.

Plaintiff cannot admit or deny the reasons Hidary sent to Starter its last

royalty report covering the period July 1-28, 1999. Plaintiff admits receiving the report. 18. Plaintiff denies knowledge that Hidary paid royalties on Starter Licensed

products to Official Starter after July 28, 1999, but states that the royalties were not paid to Starter. Letendre Aff., ¶23. 19. Plaintiff admits that Starter was involved in a lawsuit with Soundview in

conjunction with the Starter bankruptcy. 20. 21. 22. 23. 24. Denied. Letendre Aff. ¶25, Ex. G. Admitted. Admitted. Admitted. Admitted.

Disputed Issues of Material Fact 1. Whether the Asset Purchase Agreement with Official Starter included the

License Agreement with Hidary and the royalties due thereunder. The Bankruptcy Order approving the Asset Purchase agreement excluded the License Agreement and royalties payable under such agreement from the assets that were transferred to Official Starter. Letendre Aff., Ex. D. 2. Whether Soundview was acting as Starter's agent when it directed Hidary

to make royalty payments to Official Starter. Soundview was discharged as Starter's agent by order of the Bankruptcy Court. Letendre Aff., ¶25, Ex. G.

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3.

Whether the Trademark Assignment Agreement attached to the Asset and

Purchase Agreement was ever executed. Letendre Aff., Ex. C. 4. Whether Starter's rejection of the License Agreement with Hidary in the

bankruptcy proceeding constituted a material breach of such agreement. 5. Hidary. 6. Whether Hidary spent the required amount on advertising of Starter Whether Beckerman made an actual waiver of his rights to collect from

Licensed products under the Licensing Agreement.

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

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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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