Free Response in Opposition to Motion - District Court of Arizona - Arizona

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Sid Leach (#019519) Monica A. Limón-Wynn (#019174) SNELL & WILMER L.L.P. One Arizona Center 400 E. Van Buren Phoenix, AZ 85004-2202 Telephone: (602) 382-6372 Attorneys for Plaintiff Hypercom Corporation [email protected] [email protected] IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Hypercom Corporation, Plaintiff, vs. Omron Corporation, Defendant. No. CV 04-0400 PHX PGR HYPERCOM CORPORATION'S RESPONSE IN OPPOSITION TO OMRON CORPORATION'S MOTION IN LIMINE NO. 11 TO EXCLUDE EVIDENCE RELATED TO ALLEGED DUAL REPRESENTATION OF OMRON CORPORATION AND VERVE L.L.C.

Hypercom Corporation, through counsel, hereby files its Response to Omron Corporation's Motion in Limine No. 11 To Exclude Evidence Related To Alleged Dual Representation Of Omron Corporation And Verve L.L.C. and states as follows: MEMORANDUM OF POINTS AND AUTHORITIES I. PERTINENT FACTS Herb Kerner had a secret agreement to receive 10% of the money that Verve obtained as a result of its malicious patent lawsuits filed against Hypercom. Mr. Kerner was playing both sides of the fence during the negotiations leading up to the agreement to maliciously sue Hypercom. As Omron's agent, Mr. Kerner undertook actions designed to aid and abet Verve's acts of malicious prosecution and abuse of process. His financial interest in doing so is highly relevant to the issue of Omron's aiding and abetting Verve. II. LEGAL ARGUMENT

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"Evidence should not be excluded in limine unless it is clearly inadmissible on all potential grounds." Amsted Industries Inc. v. Buckeye Steel Castings Co., at *1-2. Mr. Kerner's financial interest is admissible on the issue of aiding and abetting to show his financial interest. It is admissible to show bias and interest. It is admissible for purposes of credibility. Omron cannot show at this stage that the evidence is clearly inadmissible on any potential ground. Mr. Kerner's financial interests and dual representation is relevant to the circumstantial evidence of a conspiracy. "The existence of a conspiracy may sometimes be inferred from the nature of the acts done, the relations of the parties, the interests of the alleged conspirators, and other circumstances." Wojtunik, 2005 U.S. Dist. LEXIS 32651, at *57, quoting from Southern Union Co. v. Southwest Gas Corp., 165 F. Supp.2d 1010, 1021 (D. Ariz. 2001). Omron's arguments can be better addressed by objections at trial to specific questions and answers, and are not an appropriate basis for complete exclusion of this evidence. Amsted Industries Inc. v. Buckeye Steel Castings Co., at *2 ("Evidentiary rulings should be deferred until trial so that questions of foundation, relevancy and potential prejudice may be resolved in proper context."). Motions in limine are disfavored because "[i]n many instances, prior to trial, the court has no way of knowing (1) whether any or all of the challenged evidence will be offered at trial, (2) if so, for what purpose or purposes, (3) whether, if offered, some or all of such evidence might be admissible for one or more purposes and (4) if admissible, whether its probative value might be outweighed by prejudicial effect." Hess v. Inland Asphalt Co., 1990 WL 51164, at *1 (E.D. Wash. Feb. 20, 1990). III. CONCLUSION For the foregoing reasons, Hypercom Corporation respectfully requests that the Court deny Omron's Motion in Limine to Exclude Evidence Related To Alleged Dual Representation Of Omron Corporation and Verve L.L.C.

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RESPECTFULLY SUBMITTED this 30th day of April, 2007. SNELL & WILMER L.L.P.

By s/ Sid Leach Sid Leach Monica A. Limón-Wynn SNELL & WILMER L.L.P. One Arizona Center Phoenix, AZ 85004-2202 Attorneys for Plaintiff Hypercom Corporation

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CERTIFICATE OF SERVICE I hereby certify that on April 30, 2007, I electronically transmitted HYPERCOM CORPORATION'S RESPONSE TO OMRON CORPORATION'S MOTION IN LIMINE NO. 11 TO EXCLUDE EVIDENCE RELATED TO ALLEGED DUAL
REPRESENTATION OF OMRON CORPORATION AND VERVE L.L.C. to the Clerk's

Office using the ECF System for filing and transmittal of a Notice of Electronic Filing to the following ECF registrants: David P. Irmscher John K. Henning, IV BAKER & DANIELS 300 N. Meridian Street, Suite 2700 Indianapolis, IN 46204 Phone: 317-237-1317 Fax: 317-237-1000 [email protected] [email protected] Attorneys for Defendant Omron Corporation A. Colin Wexler Matthew A.C. Zapf GOLDBERG KOHN BELL BLACK ROSENBLOOM & MORITZ, LTD. 55 E. Monroe Street, Ste. 3300 Chicago, IL 60603 Ph. 312-201-4000 Fax: 312-332-2196 [email protected] [email protected] Attorneys for Defendant Omron Corporation s/ Sid Leach H. Michael Clyde Todd R. Kerr PERKINS COIE BROWN & BAIN P.A. 2901 N. Central Ave., Ste. 2000 Phoenix, AZ 85012-2788 Ph.: 602-351-8000 Fax: 602-648-7000 [email protected] [email protected] Attorneys for Defendant Omron Corporation

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