Brunswick IBBBI Trial Docket

Brunswick IBBI Trial Docket

Polson Enterprises Research Services

This page is operated by RBBI and is NOT an official Brunswick page.

Brunswick lost the case June 19, 1998. See our trial page for details.

The page contains the trial docket of the Brunswick case involving the Independent Boat Builders Inc.. The suit was filed in the eastern district Federal District Court in Little Rock Arkansas Dec. 7, 1995.

Case Docket

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
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
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
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
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 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
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.



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 

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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