Abbreviations and definitions you may find useful
ddl: deadline deft: defendant pltf: plaintif BC: Brunswick summary judgment: they agree on the facts. It just needs to be ruled on by the judge. It is "a point of law" and not an arguement over the facts. Priviledged documents: documents that are confidential due to trade secrets, being internal legal communications or other causes. Deposed/Deposition: a method to obtain information from a person before the trial. Pre-trial discovery under oath. in limine: used to avoid injecting irrelevant information into the trial.
Interesting things in the docket by date
Section 1 lists all the firms being sued and counter sued and their legal representatives. The firms are:
Vivian Industries Fiber Sport Galaxy Boat Works Sea Arrow Marine Mariah Boats Harris Kayot Armada Manufacturing Company Baha Cruisers/FRP Industries Campion Marine Caravelle Boats KCS International/Cruisers Mirage Holdings Play Time Manufacturing, by Ohio Marine Distributor Inc. Powerquest Boats Silverton Marine Corp. Thompson Boat Company Vanguard Industries Independent Boat Builder Inc. WTYS NO 4 Inc. dba Thompson Boat Company Century Craft Industries Ltd. Avenger Manufacturing G.W. Invader Malibu Boats West, Maverick Boat Company Weeres Industries Corp Doral International Albemarle Boats Brunswick Corp. Concord Boat Corp.Some items we thought were highlights in Section 2 were:
12/07/95 Case filed 02/12/96 BC files first counterclaim 09/18/96 Motion to impose sanctions and compel response from BC 09/20/96 First motion for partial summary judgement 10/01/96 Pltfs motion to compel electronically stored documents and prevent further destruction of documents 11/04/96 Genmar Litigation documents 11/19/96 BC motion to extend time to respond to 7th set of discovery requests 12/23/96 Interesting discussion about destruction of irrelevant documents 01/03/97 Pltfs ordered to respond to BC e-mailed questionnaire. Interesting to see BC using the net. 01/21/97 Talk of a "computer meeting" set for 1/23/97 01/24/97 Judge granted BC motion to have documents it logged as privileged and all copies returned. 02/03/97 Pltfs can identify up to 15 deft employees whose electronic files they can review. Deft to produce in electronic format all files and info on the employees hard drive. NOTE - you can tell these guys are lawyers and not too computer savvy. What about their files on the network, their files on diskettes, their files on storage methods other than hard drives (optical disks, Zip drives, etc). 03/05/97 BC dragging its feet on supplying documents and ordered to supply them. 03/19/97 BC does not want to supply communications with dealers. 03/19/97 BC does not want to supply FTC (Federal Trade Commission) privileged documents (from their investigations). 03/28/97 Motion by BC to deny highly confidential treatment of testimony and documents to G.W. Invader that show it filed false reports to qualify for lower prices. 04/03/97 BC in opposition to supplying June 1995 Sales Conference document. 04/08/97 Pltfs still trying to get copies of electronic mail. 04/14/97 Parties ordered to exchange lists of individuals they anticipate deposing or calling as witnesses. 04/25/97 Discussion about deletion of Mercury Marine email. 04/28/97 BC opposes 8th set of discovery requests. 04/28/97 BC in opposition to producing electronic mail. 05/12/97 BC to produce dealer files for Baha and Boston Whaler since their acquisition. 05/15/97 Internal Transfer Pricing discussion 05/16/97 BC imaging system and indices not to be supplied.Some items we thought were highlights in Section 3 were:
06/10/97 Pltfs found in contempt for repeat violations of court orders and fined. 07/11/97 BC motion to exclude some categories of documents from preservation order. 08/22/97 Something about McKinsey performance appraisal and work done for other divisions of BC. 08/27/97 Set date to set a date for depositions of Jack Reichert and Peter larson (past and present BC CEO's. NOTE - Humorous they have to set a date to set a date. 08/29/97 BC moves for summary judgement on stern drive monopolization claim. 09/24/97 Doral International dismissed from case. 09/27/97 BC request to place Mercury Marine Lotus Notes system on backup tapes. NOTE - looks like they finally discovered there was data not on everybody's hard drive. 10/23/97 Memo by pltfs to compel BC to respond to 11th set of discovery items. 10/24/97 BC apparently supplied "cut off" email copies and was asked to supply full copies. 11/03/97 OMC shows up 11/12/97 BC asking for ability to have some of its witnesses testify by live video. NOTE- I wonder why they are trying this? 11/21/97 Pltf motion for permitting live testimony via closed circuit TV. NOTE- sounds like they want to try it too. 11/26/97 Canadian market is brought up. 12/02/97 A transcriber was issued a $1065 check for transcribing a status conference on 12/4/97. NOTE - This gives you some idea of the costs involved with a trial like this. When the transcriber gets $1000 a day, image what the lawyers are doing to you. 12/08/97 BC wants to keep in-house counsel Michael Schmidt from being deposed. 12/17/97 Judge denies motion to permit live closed circuit video testimony. 01/8/98 BC files 5th ammended counterclaim against the defendants. NOTE- this gives you some concept of the legal mess this is now in. 01/13/98 Pltfs trying to compel BC to respond to 14th set of discovery items. 01/15/98 Discussion of inspection of BC corporate premises. 01/27/98 BC motion to exclude pltfs expert witness testimony on business ethics. NOTE - BC wants to prevent testimony on business ethics:) 02/02/98 BC begins to file several motions for summary judgement against the individual companies.Some items we thought were highlights in Section 4 were:
general discussions: relevant market to be set. 02/02/98 BC continues to file several motions for summary judgement against the individual companies. 02/09/98 Pltfs response to motion to strike Joan Feldman as on of their expert witnesses. 02/09/98 Discussion of whether BC records are authentic or not. 02/20/98 BC not wanting to produce certain Outboard sales records. 02/25/98 Volvo enters. BC requests pltfs to produce Volvo stern drive info. NOTE- this seems to backfire, as later Pltfs start bringing up BC forcing Volvo out of the stern drive engine business. 03/02/98 Judge rules to exclude the testimony of pltfs expert witness on business ethics, but will allow Joan Feldman as a pltfs expert witness. 03/04/98 Restraint of trade mentioned. 03/04/98 Pltfs motion for inlimine (treble damages plus attorney's fees). NOTE - this would make a BC loss really sting! 03/04/98 Inboard engines mentioned. ************************ 03/04/98 BC makes a large number of motions to exclude certain evidence. 1. All evidence that relates only to pltfs claims concerning boats and outboard engines. NOTE- trying to limit case to stern drives. 2. All references to BC internal "transfer pricing". 3. Evidence or argument relating to other anti-trust litigation. NOTE - they want to exclude the FTC investigation. 4. All evidence of the Mercury Marine MAPS system. 5. Evidence that a former BC employee disclosed confidential IBBI info. NOTE - WOW! Have not seen that before! 6. Evidence that BC pressured or coerced dealers to drop or refrain from selling non-pltf boat lines. NOTE- they make this statement several times. I think they may be a bit "messed up". Surely they meant to say non-deft boat lines? (Meaning non BC boat lines). 7. "so called price discrimination." 8. Exclude evidence or argument BC caused Yamaha to exit the stern drive engine manufacturing business. NOTE - later on in the court docket, it looks like they have actually struck the word "Yamaha" from the record several times. 9. "Limit" the testimony of RObert E. Hall pltfs economic expert witness. ****************************** 03/11/98 Judge granted pltfs access to BC warranty registration database. NOTE - Good grief! did it take the pltfs this long to come up with this idea? 03/20/98 Judge denied BC motions for summary judgement on monopoly claims. 03/23/98 Engine/boat cost ratio discussion. 04/07/98 Judge strikes "transfer price" allegations and agrees to exclude all references to "internal transfer pricing". NOTE - they are obviously going to talk about it. They will just use different words. 04/08/97 Judge agrees to exclude evidence BC pressurized or coerced dealers to drop or refrain from selling non-pltf boat lines. NOTE - this seems like a pretty big exclusion to me.Some items we thought were highlights in Section 5 were:
04/13/98 JURY TRIAL BEGINS (DAY 1) 04/13/98 Judge agreed to exclude evidence former BC employee disclosed confidential IBBI info. Judge denied motion to exclude "so called price discrimination." Judge denied motion to limit Robert E. Hall's testimony (pltfs economic expert witness.) Judge granted in part to exclude evidence relating only to boat and outboard sales. 04/13/98 Summary judgement granted on outboard engine market. It was dismissed and will not be considered. 04/20/98 Discuss relevance of "price cap protection." 04/20/98 BC objects to the introduction of evidence that the pltf expert economic witness (Dr. Hall) has been nominated for the Nobel Prize. BC also objects to comparison of their situation with ongoing Microsoft litigation. NOTE- kind of low blow, not to be able to say you've been nominated for the Nobel Prize. 04/20/98 BC objects to certain pltf exhibits. NOTE- Probably to most of them :) 04/21/98 Volvo (not directly involved in case) moves to preserve confidentiality of their documents. It was granted the next day. 04/22/98 John Russell turns up. NOTE - I wonder if anybody knows where John Reilly is? (BC's very short term CEO from 1993/1994? 04/27/98 Response by BC on certain evidence being "blacked out." NOTE- anybody remember the Nixon tapes? 04/29/98 Ruling on objection to John Charvat deposition designation. NOTE- He used to man the BC office in Tulsa. 05/04/98 Judge rules on objections to deposing James Hubbard (MM) 05/05/98 Judge rules on objections to deposing Jack Reichert (ex- Brunswick CEO) and Roger Patterson (ex-MM executive) 05/06/98 to 05/13/98 Judge rules on objections to deposing several Mercury Marine executives: Mike Gyorog, Bob Gowens (past head of Mercruiser marketing dept), Barry Eller (Mercruiser plant manager), Kenneth Kaul, Peter Larson (CEO of BC), William McManaman, Raymond Agner, Sharon Littlefield, Patrick Manion. 05/13/98 BC moves for judgement as a matter of law. 05/20/98 Ruling on objections to deposing Charlie Strang (Mr. Strang is on the right in this RBBI IMTEC97 photo). Mr. Strang is a major historical figure in the industry and worked for both Mercury and OMC. He was also the inventor of the stern drive. I had the opportunity to meet and visit with this fine gentleman at IMTEC 97. ************************** NEW 05/28/98 Both sides to submit briefs on "issue of function of jury in determining the relevant product in this case by 6/2. Each side also to supply a proposed verdict form. 06/05/98 Dr. Warren-Boulton's transfer pricing analysis 06/08/98 BC is in opposition to pltfs motion and proposed jury instruction regarding competitive practices of other firms. 06/08/98 BC trying to quash subpoena of Jack Reichert. 06/15/98 Several individual boat companies file motions for judgment as a matter of law. 06/15/98 BC files motion for judgement as a matter of law. 06/15/98 BC dismisses counterclaims against certain plaintiffs 06/16/98 BC wants to keep 4 topics from being raised in final arguements. 06/16/98 Jury received instructions from the court.
RBBI comments on the case
The actual title of the case is Concord Boat Corp, et al v. Brunswick Corp
The case is a huge legal "mess" with countless suits and countersuits. It almost looks like a tobacco suit. Brunswick is petitioning to not allow the case to be likened to the Microsoft case.
Each side is requesting every document on the planet from the other side, while simultaneously fighting by "tooth and nail" to prevent giving up a single scrap of paper themselves.
It is interesting to see computers working their way into the case. Some information requests are being made by email between the two parties (too bad Federal Express) and IBBI is trying to obtain email and other electronic documents from Brunswick, including its warranty registration records.
Mr. Hall (Robert E. Hall) economic expert witness for the plaintifs wins the "impressive esume award". He has a very impressive background even if Brunswick refused to let him talk about being nominated for the Nobel Prize. I assume Brunswick is smart enough to check out the papers and books he has written, some are on the Stanford site, but sometimes lawyers overlook the obvious.
The costs involved with this case are incredible, but so is the risk. Robert Hall (economic expert) places damages caused by Brunswick at $75 million. If IBBI is awarded treble damages ($225 million) plus court costs and possible punitive damages the total could be astronomical.
Brunswick seems to have managed to get themselves embroiled in a number of "how we do business" suits in recent years and they don't have a very good track record at winning them. Some pre-trial rulings on evidence did seem to go in their favor. If they lose this one, their much improved stock price will probably take a dive.
Whoever wins, it will probably be appealed due to the large sums of money involved.
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