Free Proposed Findings of Uncontroverted Fact - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

STERLING, WINCHESTER & LONG, L.L.C., Plaintiff, v. UNITED STATES OF AMERICA, Defendant. _________________________________________

: : : : : : : : :

No. 05-297C (Senior Judge Margolis)

PLAINTIFF'S PROPOSED FINDINGS OF UNCONTROVERTED FACT Plaintiff, Sterling, Winchester & Long, L.L.C., pursuant to RCFC 56(h)(1), submits the following proposed findings of uncontroverted fact: 1. In March 2000, Plaintiff, Sterling, Winchester & Long, L.L.C. ("SWL"),

submitted to the United States Postal Service ("USPS") an unsolicited proposal to produce official, licensed USPS calendars. After receiving that proposal, USPS referred SWL to Equity Management, Inc. ("EMI") (Defendant's Answer ¶ 16), which USPS indicated was USPS' agent for negotiating agreements involving the sale of products bearing USPS copyrighted images or marks. (Affidavit of John G. Long ¶ 3). 2. EMI was under contract with USPS to assist in negotiating and developing

a contract with SWL. (Defendant's Answer ¶ 7). 3. SWL entered into negotiations with EMI and provided EMI with

information indicating that SWL planned to use USPS facilities as distribution channels

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for SWL's calendars. During the negotiations, EMI indicated that USPS branch post offices could not be included as a distribution channel. (Affidavit of John G. Long ¶ 4). 4. USPS owns and operates Philatelic Centers that mainly cater to stamp

collectors and offer for sale Philatelic products. (Deposition of Cindy L. Tackett, at 2021, attached hereto as Exhibit 1). 5. A Philatelic Center operated by USPS is not considered the same thing as

a post office or a branch post office. (Deposition of H. Diane Fagan, at 25, attached hereto as Exhibit 2; Deposition of Robin R. Pacheco, at 36, attached hereto as Exhibit 3). 6. A Philatelic Center can be either a building, or a designated window, or

the USPS fulfillment service office in Kansas City, which is a mail order center that supports stamp collectors. (Deposition of Cindy L. Tackett, at 19-20, attached hereto as Exhibit 1). 7. Each Philatelic Center is controlled 100% by USPS. (Deposition of Cindy

L. Tackett, at 25, attached hereto as Exhibit 1). 8. According to USPS Publication 32, "Glossary of Postal Terms,"

"philatelic center" is defined as follows: "A retail outlet or designated location in a postal lobby that sells select stamp stock of various plate number positions and a complete line of philatelic products for stamp collectors. (Also called Postique, which is a USPS trademark.)" (See excerpted copy of Publication 32 attached hereto as Exhibit 5). 9. USPS publishes a quarterly Philatelic Catalog. (Deposition of Cindy L.

Tackett, at 30, attached hereto as Exhibit 1).

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10.

Products are offered for sale in the USPS Philatelic Catalog. (Deposition

of Cindy L. Tackett, at 29, attached hereto as Exhibit 1). 11. The USPS Philatelic Catalog is controlled 100% by USPS. (Deposition of

Cindy L. Tackett, at 25-27, attached hereto as Exhibit 1). 12. Robin Stemen, an attorney employed by EMI, was the principal drafter of

the Contract between USPS and SWL. (Deposition of Robin Stemen, at 12-13, attached hereto as Exhibit 4). 13. In December 2000, SWL requested that USPS Philatelic Centers be

included as a distribution channel. Robin Stemen of EMI agreed to that request and sent SWL a proposed agreement that added "Philatelic centers" as a distribution channel. (Affidavit of John G. Long ¶ 5). 14. On January 31, 2001, USPS executed USPS Contract No. 102592-01-U-

1173 ("the Contract"). SW&L had signed the Contract earlier on January 4, 2001. (Complaint ¶ 6; Defendant's Answer ¶ 6). 15. A true and correct copy of the Contract is attached to the Affidavit of John

G. Long as Exhibit A. (Affidavit of John G. Long ¶ 6). 16. The Contract was executed on behalf of USPS by its contracting officer,

H. Diane Fagan. Ms. Fagan, read the Contract before she executed it. (Deposition of Diane Fagan, at 18, attached hereto as Exhibit 2). At the time she executed the Contract, Ms. Fagan was familiar with USPS Publication 32. (Deposition of Diane Fagan, at 22, attached hereto as Exhibit 2). 17. The Contract "grants to [SWL] a license to use certain names, trademarks,

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service marks, trade dress and/or copyrights in connection with the manufacture, distribution, advertising, promotion and sale of certain goods . . . ," subject to additional terms in the Contract. (Affidavit of John G. Long, Exhibit A at 1). 18. The Contract authorizes SWL "to design, manufacture, have

manufactured, sell, distribute, and advertise Licensed Articles ... ." (Affidavit of John G. Long, Exhibit A at 8). 19. The Contract identifies the "Licensed Articles" as follows: "An annual

series of up to five (5) thematic U.S. Postal Service 12-month calendars, commencing with calendar year 2002." 20. (Affidavit of John G. Long, Exhibit A at 1).

The Contract authorizes SWL to distribute the Licensed Articles through "Wholesale to

certain "Channels of Distribution," which include the following:

bookstores, specialty stores, Philatelic catalogs, Philatelic centers and merchandise stores ... ." (Affidavit of John G. Long, Exhibit A at 1). 21. On March 2, 2001, J.G. Long of SWL contacted USPS Contracting

Officer Diane Fagan about making arrangements for the distribution of SWL's calendars through the USPS Philatelic Centers and Philatelic catalog, both of which are identified in the Contract as distribution channels for SWL's calendars. Ms. Fagan told Mr. Long that those USPS distribution channels should not have been included in the Contract and that they were not available, and would not be available, to SWL for the distribution of SWL's calendars. (Affidavit of John G. Long ¶ 7; Complaint ¶ 19; Defendant's Answer ¶ 19).

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22.

After Mr. Long's March 2, 2001, conversation with Contracting Officer

Fagan, SWL continued to seek access to the USPS distribution channels identified in the Contract, but USPS refused to allow SWL to use those USPS distribution channels in any way. (Affidavit of John G. Long ¶ 8). 23. By letter to USPS and EMI dated November 23, 2001, SWL again

requested immediate access to the USPS Philatelic Centers and Philatelic Catalog and advised USPS that SWL considered denial of access to those distribution channels to be a breach of the Contract. (Affidavit of John G. Long ¶ 9 & Exhibit B thereto). Thereafter, USPS continued to refuse access by SWL to those USPS distribution channels. (Affidavit of John G. Long ¶ 9; Complaint ¶ 22; Defendant's Answer ¶ 22)). This 31st day of October, 2007. Respectfully submitted, /s/ Frederick L Wright______ Frederick L. Wright Vaughn, Wright & Boyer LLP One Paces West - Suite 1740 2727 Paces Ferry Road, N.W. Atlanta, Georgia 30339 (770) 805-9889 (770) 805-9191 Fax Attorneys for Plaintiff

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Exhibit 1 - page 1

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Exhibit 1 - page 2

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Exhibit 1 - page 3

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Exhibit 1 - page 4

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Exhibit 1 - page 5

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Exhibit 1 - page 6

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Exhibit 1 - page 7

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Exhibit 1 - page 8

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Exhibit 1 - page 9

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Exhibit 1 - page 10

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Exhibit 2 - page 1

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Exhibit 2 - page 2

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Exhibit 2 - page 3

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Exhibit 2 - page 4

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Exhibit 2 - page 5

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Exhibit 2 - page 6

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Exhibit 2 - page 7

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Exhibit 3 - page 1

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Exhibit 3 - page 2

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Exhibit 3 - page 3

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Exhibit 3 - page 4

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Exhibit 4 - page 1

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Exhibit 4 - page 2

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Exhibit 4 - page 3

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Exhibit 5 - page 1

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Exhibit 5 - page 2

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Exhibit 5 - page 3

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CERTIFICATE OF FILING I hereby certify that on October 31, 2007, a copy of the foregoing Plaintiff's Proposed Findings of Uncontroverted Fact was filed electronically. I understand the notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system. /s/ Frederick L Wright______ Frederick L. Wright Vaughn, Wright & Boyer LLP One Paces West - Suite 1740 2727 Paces Ferry Road, N.W. Atlanta, Georgia 30339 (770) 805-9889 (770) 805-9191 Fax

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