ISSUE: Making the case of irreparable damage

Smith Kline (Weil, Gotshall & Manges) v. Watson Pharma. Watson had developed a product to compete with NicoDerm as soon as it went off-patent.  It copied the NicoDerm insert and was restrained from using it again based on copyright infringement.  However, a million cases of product had been shipped and Smith Kline wanted them recalled alleging irreparable damage.  MARKETING’S CONTRIBUTION: The concept of “repeat-purchase reinforcement” by the insert would do damage beyond the initial purchase.  The court agreed.


ISSUE:   Non-compete contract

Procter & Gamble v. Alberto Culver (Kirkland & Ellis) An employee signed a 3-year non-compete agreement when entering the stock option program.  On exercising options, he signed an agreement to remain with the company for one year.  He left immediately and joined a company marketing “competitive” products.  MARKETING’S CONTRIBUTION:   Using the Theory of Monopolistic Competition it was asserted that although the products were used for similar purposes, they were  not competitive because the consumer and the trade did not consider them to be.  Summary judgment, settled during appeal.


ISSUE:   Mitigate damages from copyright infringement

ZZ Top v. Chrysler Corporation (Perkins, Coie, LLP) Chrysler used some music for a sales meeting that was inadvertently broadcast via satellite.   MARKETING’S CONTRIBUTION: Using the concept of reach/frequency for measuring the impact of aired messages,  it was asserted that this message had absolutely no impact.  Therefore, no damages due to infringement could be claimed.  Settled.


ISSUE: Assess damages due to non-performance of contract

The Best of the 20th Century (Dryden, Margoles, Schimaneck, Kelly & Wait) v. Fox   Unique promotional opportunity built around the turn of the century, was offered to Fox, which accepted it.  Ultimately Fox did not use it but so much time had passed that it was impossible to sell it to another  company.  MARKETING’S CONTRIBUTION: An assessment of the validity and potential strength of the promotion and the potential loss due to the abrogation of the contract.  Settled.


ISSUE: Strengthening damages’ claim in distributor contract dispute.

Play Inc. (Weintraub Genshlea & Sprout) v. Minolta   Play, Inc. entered into an exclusive distribution agreement with Minolta which subsequently did not live up to the agreement.  MARKETING’S CONTRIBUTION: To explain the essence, from a marketing point of view, of the nature of an exclusive agreement, and the responsibilities that went with such an agreement.  Minolta failed in most respects.  Settled.


ISSUE:  Mitigating damages due to nonfulfillment of a contract

Ennen v. Wunda Weve/The Hartford (Forrest & McLaughlin) Defendant did not perform according to contract.  The contract was vague and ultimately boiled down to “he said/she said.” The jury decided for the plaintiff–in fact there was a contract.  However, the jury awarded zero damages.  MARKETING’S CONTRIBUTION: The inducement to enter into this agreement was that the program offered was considered to be “cause” related designed to induce symphony goers to think sufficiently highly of the sponsor (Wunda Weve) so as to promote its carpet.   My testimony revolved around an analysis of promotional devices in general and the value this one in particular.  In sum, it was not cause-marketing, just a poor promotion.


ISSUE: Mitigating damages in personal injury case

Stern v Anthony Pool (Arter & Hadden) Plaintiff was hurt replacing a pool filter.  The suit involved medical expenses and loss of wages, stock options, and career advancement.  MARKETING CONTRIBUTION: Plaintiff’s “evidence” of the potential value of his contributions was the near demise of the company after he was hurt.  In fact, our analysis of the company indicated that it was in particularly bad shape before, most of the sales were “loading” rather than in response to consumer demand, and the value of plaintiff’s contributions was minor.  Settled.


Other cases involved: