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 regarding its claim for unfair competition against the Distributor Defendants. Awareness brought suit against the Distributor Defendants for unfair compettion based upon the Distributor Defendants' intentional and wrongful conduct against Awareness. Awareness' claim for unfair competition was not implicated in the parties' various motions for summary judgment, and were thus not contemplated by the Court's June 1, 2005 Order on the motions for summary judgment. This claim will therefore be determined at trial. No. CV03-2024-PHX-DGC PLAINTIFF AWARENESS CORPORATION'S BENCH MEMORANDUM NO. 5 RE: UNFAIR COMPETITION

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Document 359

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

The term "unfair competition" is used to describe a commercial tort involving competitive behavior that in its totality is "unfair." CHAFFEE, Unfair Competition, 53 HARV.L.REV. 1289 (1940). The law of unfair competition is the umbrella for all statutory and nonstatutory causes of action arising out of business conduct which is contrary to honest practice in industrial or commercial matters. Co., 514 F.2d 665 (5th Cir.). "When a scheme is evolved which on its face violates the fundamental rules of honesty and fair dealing, a court of equity is not impotent to frustrate its consummation becausee the scheme is an original one. There is a maxim as old as law that there can be no right without a remedy, and in searching for a precise precedent, an equity court must not lose sight, not only of its power, but of its duty to arrive at a just solution of the problem." Am. Philatelic Soc'y v. Claibourne, 46 P.2d 135 (1935). In proving unfair competition, the aggrieved party does not have to prove anything more than that the defendants engaged in a scheme which on its face violates the fundamental rules of honesty and fair dealing, even though the scheme may or may not include any other commercially tortious act. Thus, unfair competition can be comprised of any act or group of acts that results in competitive unfairness, whether any of such acts comprise a separate cause of action. competition, as is injunctive relief. 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 Corp. and Third Party Defendants Allcock and Schmidt Punitive damages are available for unfair Am. Heritage Life Ins. Co. v. Heritage Life Ins. Co., 494 F.2d 3 (5th Cir.); Prof'l Golfers Ass'n v. Bankers Life & Cas.

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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

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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