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I Case 1 :04-cv-00148-GIVIS Document 65-4 Filed 08/15/2005 Page 1 of 4 I
I UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
In re: ,
Civil Action No. 1:04-cv-00148-GMS
INACOM CORPORATION, et ul.,
Debtors. I
‘ - / Bankr. Case No. 00-02426 (PJW)
INACOM CORPORATION, A Adv. Pro. No. 02-03496 (PJW)
Plaintiff, U
v.
TECH DATA CORPORATION, I
I Third-Party Plaintiff,
I A vs.
HEWLETT-PACKARD COMPANY,
COMPAQ COMPUTER CORP.,
ITY CORP., and CUSTOM EDGE, INC.,
Third-Patty Defendants.
l /
TECH DATA CORPORATION’S RESPONSE TO HEWLETT -PACKARD
COMPANY’S MOTION IN LIMINE TO EXCLUDE EVIDENCE RELATED TO
TECH DATA CORPORA'I`ION’S CLAIMS AS A THIRD-PARTY BENEFICIARY
A TECH DATA CORPORATION, the defendant herein (the "Defendant" or "Tech
I Data"), by and through its undersigned attorneys, hereby responds to Hewlett-Packard p
. Company’s ("HP") Motion In Limine to Exclude Evidence Related to Tech Data
Corporation’s Claims as a Third—Party Beneficiary under the Asset Purchase Agreement
between Inacom Corp. ("Inacom") and Compaq.
{2 t 0346.0002/N0se060s_1 }

Case 1:04-cv-00148-Gl\/IS Document 65-4 Filed 08/15/2005 Page 2 of 4
STATEMENT OF FACTS
Tech Data hereby incorporates by reference the facts as set forth in its Proposed
Findings of Fact and Conclusions of Law as to Its Third Party Complaint.
ARGUMENT
I I. Hewlett-Packard Has Failed to Show Cause as to Why Evidence of
Tech Data as a Third-Party Beneficiary Should Be Excluded
HP has presented no legal authority sufficient to preclude Tech Data’s
presentation of evidence of its status as a third-party beneficiary to the Asset Purchase
Agreement. Long has it been established that under New York law, "it is just and
practical to permit the person for whose benefit the contract is made to enforce it against _
one whose duty it is to pay." Seaver v. Ransom, 120 N.E. 639, 640 (N.Y. 1918). Tech
Data stands as an intended third-party beneficiary to the Asset Purchase Agreement and,
notwithstanding HP’s protests, is entitled to present evidence in support of that
conclusion at trial.
_ Opposing counsel would have it that the existence of a provision perhaps best
A characterized as a non—assignment clause in the Asset Purchase Agreement is
‘contro1ling’ and adequate to support its motion in limine. And yet, the Southern District
, of New York has on occasion rejected such a notion, stating that, "[With] the proposition
that the existence of a non-assignment clause alone suffices to preclude assertion of
intended third-party beneficiary status, the Court cannot agree. After all, it is possible for _
A parties to intend that a third party enjoy enforceable rights while at the same time
intending to limit or preclude assignments? Piccoli A/S v. Calvin Klein Jeanswear C0.,
19 F. Supp. 157, 164 (S.D.N.Y. 1998). Accordingly, Tech Data’s status as third-party
{2103460002/N0560605__I 1 2 A

Case 1:04-cv-00148-GI\/IS Document 65-4 Filed 08/15/2005 Page 3 of 4
i beneficiary is a matter best decided by the trier of fact at a trial upon those facts, rather
than presented by HP as a fait accompli without regard for the full extent of New York
law upon the subject. »
II. Dismissal Based Upon the Hewlett-Packard’s Pending Motion Would
Be Premature and Unduly Harsh
However the Court may rule upon the pending motion in limine, a resulting `
involuntary dismissal of any of Tech Data’s claims would be both a premature and
unduly harsh result. See generally Atkinson v. Way, 2004 U.S. Dist. LEXIS 16933 -
(D.Del. 2004). The outcome of HP’s motion in limine notwithstanding, none of Tech
Data’s claims should be dismissed without further and adequate proceedings to that
_ effect. I I i
Conclusion
For the foregoing reasons, Tech Data respectfully requests that this Court deny
HP’s motion in limine seeking to preclude introduction of evidence supporting Tech
Data’s status as a third-party beneficiary to the Asset Purchase Agreement. i
t2i0s46.00021N0s6060s_1} q 3 A

Case 1:04-cv-00148-Gl\/IS Document 65-4 Filed 08/15/2005 Page 4 of 4
Dated: August 15, 2005
HERLIHY, HARKER & KAVANAUGH
/s/ James F. Harker
James F. Harker (Bar N0. 255)
Local Counsel for Defendant
1300 North Market Street, Suite 400
Wilmington, Delaware 19899
Telephone: (302) 654-31 1 1
‘ -and—
ADORNO & YOSS, LLP
Charles M. Tatelbaum
(Admitted Pro Hac Vice)
Stephen C. Hunt
(Admitted Pro Hac Vice)
350 E. Las Olas Boulevard, Suite 1700
Fort Lauderdale, FL 33301
Telephone: (954) 763-1200
Facsimile: (954) 766-7800
Attorneys for Third-Party Pldirzt@ '
Tech Data Corporation
{2i024a0o02r¤~10sc060s_11 4 J

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