Free Trial Brief - District Court of Arizona - Arizona

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GREENBERG TRAURIG, LLP
ATTORNEYS AT LAW SUITE 700 2375 EAST CAMELBACK ROAD PHOENIX, ARIZONA 85016 (602) 445-8000

Steven M. Weinberg, SBN 016817, [email protected] Brian J. Schulman, SBN 015286, [email protected] Kimberly A. Warshawsky, SBN 022083, [email protected] Attorneys for Plaintiff Awareness Corporation and Third Party Defendants Allcock and Schmidt IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Awareness Corporation, Plaintiff, Group Vision International, L.L.C., et al., Defendants. And related cross claims and third party actions. Plaintiff Awareness Corporation ("Awareness") hereby submits its bench memorandum on evidence of causation of damages. In its June 1, 2005 Order on the parties' respective motions for summary judgment (the "June 1 Order"), the Court ruled that it would "decide the causation issue after considering all of the evidence at trial." June 1 Order at 19. Awareness anticipates that some of the causation evidence presented at trial will be in the form of testimony regarding distributor and customer behavior and comments in response to defendants' actions. Awareness further anticipates that the testimony will come directly from such distributors and customers, but also from Awareness' representatives who observed the behavior and comments. The latter form of testimony is admissible under Rule 803(3),
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No. CV03-2024-PHX-DGC PLAINTIFF AWARENESS CORPORATION'S BENCH MEMORANDUM NO. 7RE: EVIDENCE OF CAUSATION OF DAMAGES

Case 2:03-cv-02024-DGC

Document 361

Filed 08/08/2005

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2375 EAST CAMELBACK ROAD, SUITE 700 PHOENIX, ARIZONA 85016 (602) 445-8000

Federal Rules of Evidence. Awareness may offer evidence to prove causation based on (1) Awareness executives' and employees' own testimony about their distributor's and customer's behavior, including the identification of such distributors and customers whom the plaintiffs lost as a result of the defendant's actions, (2) expert damage reports on the reasons for such losses, and (3) statements made by distributors and customers explaining the reasons they no longer do business with the plaintiffs. Callahan v. A.E.V., Inc., 182 F.3d 237, 260 (3d Cir. 1999). This evidence is admissible and, in the aggregate, is sufficient evidence to prove the defendants' actions caused Awareness' damages. Id. Rule 803(3), Fed.R.Evid., provides an exception to the hearsay rule if the statement is offered to show the declarant's state of mind. That exception applies to statements made by customers concerning their reasons for no longer doing business if the statements are offered to show the customers' motives for no longer doing business. Id. at 252 (quoting Herman Schwabe, Inc. v. United Shoe Mach. Corp., 297 F.2d 906, 914 (2d Cir. 1962)). In Callahan, the Third Circuit Court of Appeals allowed the testimony of various plaintiffs that certain customers stated they stopped purchasing products from the plaintiffs' stores because the defendant's store offered the same product cheaper. Despite the hearsay nature of this testimony, the court admitted it as a statement of the customers' then existing states of mind, solely for the purpose of proving the customers' motives in ceasing to shop at the plaintiffs' stores. Id. The court ultimately found that this evidence, in addition to certain expert damage reports on the reasons for such loss, was sufficient to prove the defendant's antitrust violations caused the plaintiffs' damages. Id. at 260. Although the Ninth Circuit Court of Appeals has never been presented with such facts, "statements of then existing states of mind" are admissible in every circuit.

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G REENBERG T RAURIG

LAW OFFICES

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2375 EAST CAMELBACK ROAD, SUITE 700 PHOENIX, ARIZONA 85016 (602) 445-8000

RESPECTFULLY SUBMITTED this 8th day of August, 2005. GREENBERG TRAURIG, LLP By: /s/ Kimberly A. Warshawsky Steven M. Weinberg Brian J. Schulman Kimberly A. Warshawsky Attorneys for Awareness Corporation and Third Party Defendants Allcock and Schmidt

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2375 EAST CAMELBACK ROAD, SUITE 700 PHOENIX, ARIZONA 85016 (602) 445-8000

CERTIFICATE OF SERVICE I hereby certify that on August 8, 2005, I electronically transmitted the attached document to the Clerk' Office using the CM/ECF System for filing and transmittal s of a Notice of Electronic Filing to the following CM/ECF registrants: Curtis D. Drew, Esq. 2342 North Pima Road Scottsdale, Arizona 85257-2405 [email protected] Attorney for Defendant Group Vision International, L.L.C. G. Gregory Eagleburger, Esq. The Eagleburger Law Group 2999 North 44th Street, Suite 303 Phoenix, Arizona 85018 [email protected] Attorneys for Distributor Defendants I hereby certify that on August 8, 2005, I served the attached document by facsimile and United States mail on the following, who are not registered participants of the CM/ECF System:

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G REENBERG T RAURIG

LAW OFFICES

/s/ J. David Smith

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