Allen Systems Group, Inc. v. Avon Products, Inc.
Filing
170
ORDER re 131 Opinion and order. Having reviewed the summary judgment Order, the Court finds all factual findings except paragraph four are accurate and can be entered as pretrial stipulations in the jury instructions for trial. However, par agraph four is inaccurate. The Court found Avon violated the 2006 Software License Agreement with regard to four products: ASG-Zeke, ASG-Job/Scan, ASG-TMON and ASG-ViewDirect. (Doc. 131 at 21-23). By contrast, paragraph four of the Amended Fina l Pretrial Statement states Avon violated the 2006 software license agreement with ASG-Zeke, ASG-Job/Scan, ASG-TMON, and ASG-DocumentDirect. (Doc. 155 at 14-15). Neither the Plaintiff's Amended Complaint nor the Court's summary judgment h olding discusses ASG-DocumentDirect. (Docs. 37 ; 131 ). Thus, paragraph four may only be included in the stipulations if it inserts ASG-ViewDirect in place of ASG-DocumentDirect. Signed by Judge Sheri Polster Chappell on 4/4/2018. (LMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ALLEN SYSTEMS GROUP, INC., a
Delaware corporation
Plaintiff,
v.
Case No: 2:16-cv-121-FtM-38CM
AVON PRODUCTS, INC.,
Defendant.
/
ORDER1
This matter comes before the Court after conducting the Final Pretrial Conference
on March 30, 2018. (Doc. 166). There, the Court was asked to rule upon five disputed
statements derived from the summary judgment Order (Doc. 131). The facts are as
follows:
1. The Court has found the following definitions applicable to
the contracts at issue in this case:
a.
b.
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“Aggregate Usage Model”: The applicable
standard for sub-capacity licensing, based on
the highest observed rolling four hour average
(RH4A) utilization of the LPAR(s) on which the
software is run, incorporating the aggregate
number of collective MIS used by all software
products deployed on an LPAR.
“Sub-Capacity MIPS”: The applicable standard
for sub-capacity licensing, measured using the
Aggregate Usage Model. The term is not
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ambiguous, and “Sub-Capacity LPAR MIPS”
are not tied to or related to any ASG Product
usage levels.
2. Avon and ASG are both sophisticated entities in the world
of mainframe software licensing, and are subject to the
standards for that industry.
3. Because the Aggregate Usage Model is the industry
standard in Sub-Capacity Licensing, both parties are
bound by this definition.
4. Avon violated the 2006 SLA with regard to the four ASG
software products at issue in this litigation: ASG-Zeke,
ASG-Job/Scan, ASG-TMON, and ASG-DocumentDirect.
5. It has been established Avon used the ASG products at
issue for the benefit New Avon in breach of the SLA.
(Doc. 155 at 14-15) (numbered paragraphs altered).
Avon contests the introduction of the undisputed facts as stipulations, argues they
are inaccurate descriptions of the Court’s findings, are irrelevant to the damages dispute,
and some are repetitive of other stipulated facts. Nevertheless, Avon states that to the
extent any of the factual findings are relevant at the damages stage, it will stipulate to
them at trial.
Having reviewed the summary judgment Order, the Court finds all factual findings
except paragraph four are accurate and can be entered as pretrial stipulations in the jury
instructions for trial. However, paragraph four is inaccurate. The Court found Avon
violated the 2006 Software License Agreement with regard to four products: ASG-Zeke,
ASG-Job/Scan, ASG-TMON and ASG-ViewDirect. (Doc. 131 at 21-23). By contrast,
paragraph four of the Amended Final Pretrial Statement states Avon violated the 2006
software license agreement with ASG-Zeke, ASG-Job/Scan, ASG-TMON, and ASGDocumentDirect. (Doc. 155 at 14-15). Neither the Plaintiff’s Amended Complaint nor the
2
Court’s summary judgment holding discusses ASG-DocumentDirect. (Docs. 37; 131).
Thus, paragraph four may only be included in the stipulations if it inserts ASG-ViewDirect
in place of ASG-DocumentDirect.
Accordingly, it is so ORDERED in Fort Myers, Florida on this 4th day of April, 2018.
Copies: All Parties of Record
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