Free Motion in Limine - District Court of Arizona - Arizona

Matthew A. C. Zapf (pro hac vice) A. Colin Wexler (pro hac vice) GOLDBERG KOHN 55 East Monroe Street, Suite 3300 Chicago, IL 60603-5792 Telephone: 312.201.3914 Facsimile: 312.863.7414 [email protected] [email protected] David P. Irmscher (15026-02) John K. Henning (25203-49) BAKER & DANIELS LLP 111 East Wayne Street, Suite 800 Fort Wayne, IN 46802 Telephone: 260-424-8000 Facsimile: 260-460-1700 [email protected] [email protected] H. Michael Clyde (009647) PERKINS COIE BROWN & BAIN P.A. 2901 North Central Avenue, Suite 2000 Phoenix, AZ 85012-2788 Telephone: 602.351.8000 Facsimile: 602.648.7000 [email protected] Attorneys for Defendant Omron Corporation UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Hypercom Corporation, Plaintiff, vs. Omron Corporation, Defendants. ) ) ) ) ) ) ) ) ) ) ) CAUSE NO. CV04-0400 PHX PGR DEFENDANT OMRON CORPORATION'S MOTION IN LIMINE NO. 12 TO EXCLUDE ANY EVIDENCE RELATED TO "REFERRAL FEE" BETWEEN HYPERCOM AND DTK TECHNOLOGIES, LLC (Oral Argument Requested)

The defendant, Omron Corporation ("Omron"), moves this Court to exclude any evidence regarding the proposed "referral fee" agreement between Verve L.L.C. and a

Case 2:04-cv-00400-PGR

Document 175

Filed 04/13/2007

Page 1 of 5

non-party to this case, DTK Technologies, LLC. The "referral fee" proposal is not relevant to any claims or defenses in this action, and Hypercom would only offer it to confuse the jury. This evidence should be excluded pursuant to Rules 402 and 403 of the Federal Rules of Evidence. I. A. ARGUMENT

Evidence Regarding A Proposed Method Of Compensating Omron's Outside Counsel, Which Was Not Accepted, Is Not Relevant To Hypercom's Claims Hypercom plans to offer into evidence a proposed agreement between Verve and

DTK Technologies regarding the payment of a "referral fee" with respect to the OmronVerve relationship. This evidence, however, is not relevant to the existence of any conspiracy between Omron and Verve, and should be excluded under Rule 402. As Omron explained in detail during discovery, on March 19, 2004, Verve offered to DTK Technologies, a limited liability corporation created by Omron's outside counsel, Herbert Kerner, a "referral fee," which was never accepted by Mr. Kerner. See Omron Corporation's Second Set of Responses To Hypercom's First Set Of Interrogatories at 4. However, after having an opportunity to evaluate the proposed agreement, Omron and Baker & Daniels "determined that the referral fee arrangement created between H&W was not desirable and that Verve's referral fee offered in its March 19 letter has been expressly declined." Id. This referral fee proposal does not make the existence of a conspiracy more or less probable and, thus, is not relevant. The proposal is not relevant for the same reasons that any other fee, i.e., a contingency fee agreement or payment by the hour, would not be relevant to proving the existence of a conspiracy to file baseless patent infringement

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lawsuits. Moreover, the proposed agreement was never accepted, and no "referral fee" was ever paid. This evidence should be excluded. B. Evidence Regarding The Proposed "Referral Fee" Will Only Confuse The Jury Even if the evidence is relevant, it should be excluded under Rule 403 because its probative value is outweighed by the danger of confusion of the issues and misleading the jury. The jury is not likely to understand the referral fee and the context surrounding it. Permitting this evidence will only confuse the jury and possibly allow them to make an impermissible inference that the proposed referral fee from Verve evidenced some sort of conspiracy, which it cannot. II. CONCLUSION

Any evidence regarding the proposed "referral fee" should be excluded.

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RESPECTFULLY SUBMITTED on April 13, 2007.

By: /s/ Matthew A.C. Zapf Matthew A.C. Zapf A. Colin Wexler GOLDBERG KOHN 55 East Monroe Street Suite 3300 Chicago, IL 60603-5792 David P. Irmscher (15026-02) John K. Henning (25203-49) BAKER & DANIELS LLP 111 East Wayne Street Suite 800 Fort Wayne, IN 46802 H. Michael Clyde (009647) PERKINS COIE BROWN & BAIN P.A. 2901 North Central Avenue Suite 2000 Phoenix, AZ 85012-2788 Attorneys for Defendant Omron Corporation

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CERTIFICATE OF SERVICE I hereby certify that on April 13, 2007, I electronically transmitted the attached documents to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Andrew Foster Halaby Ray Kendall Harris John Kenyon Henning, IV David P. Irmscher Sid Leach Monica Anne Limon-Wynn Paul Moore A. Colin Wexler Matthew A.C. Zapf [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected]

I hereby certify that on April 16, 2007, I caused the attached document to be served by hand delivery on Judge Paul G. Rosenblatt, United States District Court of Arizona, 401 West Washington Street, Phoenix, Arizona 85003-2118.

/s/ Lisa M. Sandoval

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