Free Response to Motion - District Court of Arizona - Arizona

Robert M. Frisbee #018779 FRISBEE & BOSTOCK, PLC 2 1747 Morten Ave. E. Suite 108 Phoenix, Arizona 85020 3 Phone: (602) 354-3689 [email protected] 4 Attorneys for Defendant Greg Hancock
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA MERITAGE CORPORATION, a Maryland corporation Plaintiff, vs. ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

NO. CIV 04-0384-PHX-ROS

GREG HANCOCK, an individual; RICK HANCOCK, an individual; and 12 RICK HANCOCK HOMES, L.L.C., an Arizona Corporation,
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DEFENDANT GREG HANCOCK'S RESPONSE TO PLAINTIFFS' MOTION IN LIMINE RE: BARBARA SORGET-STANTON

Defendants.
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1. Introduction
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So now, according to Meritage, the professional advertising person it hired to take the
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Hancock name so "dark in the market" that Greg Hancock would have to "resurrect" it is
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"unreliable," even though it has known about her for two years, had her report, hired an
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"expert" to refute her, and deposed her, it is somehow prejudiced by her trial appearance.
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All this has to do with the License Agreement, about which a brief review is in order:
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! On 9/8/03, three years and nine months the License Agreement was due to expire, Hilton authored the "go dark" email.

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! At the 2003 Christmas party it was announced that Hancock Communities would be changed to Meritage.

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! On 12/9/03 Ron French e-mailed Desiree Coats saying, "Please start the agency

Case 2:04-cv-00384-ROS

Document 530

Filed 09/05/2007

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thinking about the change of Hancock to Meritage. John [Landon] wants to accomplish this ASAP." ! On 2/13/04 Greg Hancock canceled the License Agreement. ! On 5/20/04 Barbara Sorget issued the Creative Brief outlining the plan to change the Hancock name to Meritage. ! On 6/18/04 Meritage executives and Sorget conferred about the ad campaign, and the conference report said, "[Meritage] requested Agency to revise the release so that it focuses more on Meritage and less on Hancock." ! In July, `04 the ad campaign changing the name begins, and continues for months. ! Over time, the Hancock name is removed from 10 out of 12 communities, and disappears from newspaper ads. ! Steve Hilton testified that the effect of the foregoing on the Hancock name was that it "made it less visible." ! Barbara Sorget-Stanton testified that the ad campaign accomplished the purpose stated in Hilton's e-mail, i.e. it took the Hancock name "dark in the market." Predictably, Meritage doesn't want the jury to hear any of this. 2. Disclosure Barbara Sorget-Stanton was retained and her report commissioned by former codefendant Rick Hancock. She was fully disclosed, her report was furnished to Meritage, quotes from it were used in various motions made by defendants, Meritage hired an "expert" to rebut it,1 and on June 27, 2007, Meritage deposed Sorget-Stanton from 9:14 a.m. to 4:52 p.m. She offers no surprises whatever to Meritage. In addition, in his Initial Disclosure Statement defendant Greg Hancock identified as possible trial witnesses, "Such other witnesses who are identified through the discovery process herein," pretty much the same

His report and testimony is so without foundation or substance that this defendant wants the jury to hear it as a demonstration of the weakness of Meritage's case in every respect.

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language used by Meritage in its disclosure. Sorget-Stanton was discovered in examining Meritage's document production, which revealed the name change campaign and its underlying documents. Defendant Greg Hancock also could have chosen not to disclose Sorget-Stanton at all and have used her as a percipient Rule 701 rebuttal witness to Meritage's claims that it did nothing to harm the Hancock name. Finally, Meritage has suffered no harm or prejudice whatever. As stated by the Advisory Committee's note (1993) to Rule 37(c)(1), examples of "harmless" failures to disclose are the omission of the name of a potential witness known to all parties, and the failure to list as a trial witness one that another party has listed as a witness. Of course, Sorget-Stanton was listed as a trial witness by Greg Hancock. 3. Sorget-Stanton's Expertise Meritage's carping about Sorget-Stanton's methodology, i.e. she didn't do peer reviews, focus studies, and "regression analysis" (whatever that is) ignores numerous salient factors, the most important of which is that her study was done long after the Hancock name was taken dark, so there was no opportunity to do the various supposedly meaningful tests at the time the advertising was accomplished. Second, at the time Meritage was advertising only in newspapers, so it is ridiculous to suggest that she should have reviewed the other media outlets mentioned by Meritage. Meritage purposely fails to inform the court of the following testimony by Sorget-Stanton: "The reason I only looked at the Arizona Republic is because I knew I created the marketing plan and the media plan, and the only place they were advertising at that time was the Arizona Republic. They were not doing radio. They started doing outdoor boards in 2004. They only had two. They didn't do television, and they didn't advertise in community newspapers." (Dep. 147,148) Third, Meritage suggests that Sorget-Stanton ignored other important factors, such
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as circulation, page position, creative design, etc. The suggestion is ridiculous in that the ads studied were the only advertising by Meritage, and wherever they appeared or however they looked, they were what they were, the only available source of consumer information. Her study was based on a comparison of prominence between the names in the ads, not whether Christie Brinkley appeared in them. She testified that the purpose of her exercise was determine if the Hancock name had diminished in awareness and visibility, and if the name was once large and later is small, she didn't need to ask a focus group, make phone calls, or send out surveys. (Dep. 167) The point is: That from 2000 - - January 2000 to June 2004 Hancock took - - the Hancock Communities' name had a predominant position within the majority of the newspaper ads, and it always had - - the way started the transition was "Hancock Communities, a Meritage Company" in small print. So Hancock had it. Starting in July of 2004, we did the advertising campaign change, and it became Meritage Homes had the predominant and Hancock Homes took the secondary position. Then in - - that was through December of 2004. Starting in July of 2004 is when we said "Hancock Homes is now Meritage Homes," and then it positioned into Meritage Homes in and of itself. In January 2005, Hancock Homes was substantially decreased in newspaper advertising, and it was only mentioned in small print in the community listings under two the communities on the east side and the west side community, and as of June 2005 it basically was only mentioned in one community. So it had - - from June - from July 2004 on, there was a substantial decrease in the Hancock Communities' name. (Dep. 185) Meritage complains that Sorget-Stanton doesn't have fancy degrees and doesn't make a living from selling her expert testimony, like the experts it hired. It also offers a nice lecture about gate-keeping and expert qualifications, the purpose of which is
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only to denigrate Sorget-Stanton. What it really doesn't like is the following: Q. What was your conclusion? A. My conclusion is that the Hancock name did diminish in awareness over the course from - - looking at it from January 200 through August of 2005, that as of July 2004 the Hancock name decreased significantly. * * *

Q. I guess my question is: Aren't you really making the conclusion that some of the size - - the size decreased after July 2004. A. The name was diminished. The name was not used as often and as big and predominant as it had been for, my gosh, since I started working on the account. Q. What does the name being diminished to you? What does that mean? A. Lessens - - it lessens the marketability. It lessens the awareness. It lessens the known entity.

Q. How do you make the determination that a name's awareness is diminished without determining from, like you said, before focus groups or surveys over the phone - A. It happens in everything - Q. Let me finish. How do you determine there is actually diminishment without testing what other people thought? A. When something is not out there anymore, people forget about it. Q. So that is based on - A. In almost every marketing book you read, every marketing article you read, you will read that if you don't have consistent advertising of your brand that you will lose marketability and decrease awareness. That's why advertisers say advertise on a consistent basis. You can't just put an ad here and then wait six months an put
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another ad. You will lose your audience. Q. That is base on your experience and you reading of the literature, correct? A. Correct. (Dep. 151,152) On that topic, the advertising of a product and the techniques utilized by those doing so is not, as the saying goes, "rocket science." On the other hand, it can probably be safely said that the average layperson (like the writer) knows nothing whatever about it, and therefore the topic is one in which expert testimony could be helpful. However, a "rocket scientist's" qualifications are certainly unnecessary. At the outset, Sorget-Stanton's knowledge of the facts is certainly not in issue - - she actually did the task of replacing the Hancock name with Meritage. And she need not have fancy degrees. A combination of study, like her knowledge of marketing literature, and field experience for years, is sufficient foundation. Educational attainments are not a prerequisite, and a person can be qualified as an expert by experience alone. Godwin v. Farmers Ins. Co. of America, 129 Ariz. 416, 631 P.2d 571 (App. 1981). Moreover, it is not necessary that the witness be the most qualified person to offer opinions in the particular area. Good v. City of Glendale, 150 Ariz. 218, 722 P.2d 386 (App. 1986). Sorget-Stanton has been doing marketing and advertising for over twenty years, starting doing work for builders in the mid-`80s. She worked on marketing and advertising plans from both the agency and the client side. (Dep. 57-59) For Meritage-Hancock Communities she maintained the advertising campaign, checked ads for correctness, handled billings, and worked on the marketing and advertising plans. (Dep. 69) She attends marketing seminars and has given presentations to the American Marketing Association and the Pacific Coast Builder's Association on marketing, branding and positioning. (Dep. 77) She spoke about names and name changes at a conference in Chicago on behalf of Del Webb Corporation. (Dep. 78-79) She has also directed focus groups to determine if a name has declined over time to determine if target audiences have less awareness of the name. (Dep.
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79) She reads and buys many books and magazines on advertising, branding and positioning. (Dep. 82) In short, she has a world of practical experience and knowledge. No more is necessary for her to qualify as an expert. 4. Conclusion Meritage has known of Sorget-Stanton, her report and her likely testimony for months and months. She offered no surprises in her deposition testimony. She is also a percipient witness as well as an expert. She is eminently qualified. The jury should hear her testimony.

RESPECTFULLY SUBMITTED this 5th day of September, 2007.

FRISBEE & BOSTOCK, PLC /s/ Robert M. Frisbee Robert M. Frisbee Attorney for Greg Hancock

The foregoing Response to Motion in Limine was electronically filed and served this 5th day of September, 2007, and copy 17 thereof mailed to the Honorable Judge Silver.
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/s/ Robert M. Frisbee