Trujillo v. Apple Computer, Inc. et al

Filing 876

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EXHIBIT 1 EXHIBIT 2 EXHIBIT 3 EXHIBIT 4 EXHIBIT 5 EXHIBIT 6 EXHIBIT 7 EXHIBIT 8 20060103 AM Casey Trial Closing 0001 1 2 3 4 5 6 7 Plaintiffs, 8 vs. 9 QT, INC., an Illinois 10 11 Defendants. 12 13 14 15 16 17 18 19 20 21 22 23 24 Record of proceedings before the Honorable Irwin Solganick, Judge of the Circuit Court of Cook County, Illinois, before Paula Campbell, R.D.R., C.R.R., C.C.P., commencing at 9:30 a.m., taken on Tuesday, January 3, 2006, upon the trial of the above-entitled case. corporation, and QUE TE PARK, Individually, DONALD E. CASEY, JOHN SCAVO, DAVID CLARKE, NORMA WAGENER, LOUIS KANTOR, WHITLEY BEHRENS, Individually and on behalf of all others similarly situated, ) ) ) ) ) ) ) ) ) ) NO. 03 CH 1134 ) ) ) ) ) ) IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT - CHANCERY DIVISION 1 1/3/2006 20060103 AM Casey Trial Closing 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 what we were selling, they should have known we were misrepresenting it at this time. preposterous argument. And we are dealing with a product, Your Honor, that their own expert said is no better than a paper clip wrapped around their wrist. product has no intrinsic worth. you a lot of damage models. This It's a And we have given In my opinion they should simply be forced to refund the total amount of which they fraudulently charged people. you, Your Honor. MR. ZIMMERMAN: Your Honor, let me apologize Thank on the Plaintiffs' Exhibits 161, 162 and 163, I overlooked those. THE COURT: I apologize. Now, I've probably spent more time on this case of my own time reviewing testimony, exhibits, briefs submitted by the parties, cases that I haven't had in any other case that I've had in 19 years on the bench, and a couple observations that I have to make about this case. I notice that initially with regard to the evidence here, the marketing was done at trade shows and golf shows, probably because golfers will buy anything that would help their games. Even if 114 1/3/2006 20060103 AM Casey Trial Closing 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 there is a new driver that will increase somebody's drive 16 inches, somebody will go out and spend $500 to buy that driver so they can get almost a foot and a half more distance. Golfers will buy just about anything if they think it will help their game. From what I've observed in my experiences in life and what I've observed in cases before me, people who are in pain will try to do almost anything to relieve their pain. With that in mind, I reviewed the evidence in this particular case. And what I really saw in this case was a great scam. Here we have marketing the Q-Ray bracelet and the infomercials, 99 percent of what was contained in the infomercials was directed to relieving pain, or at least in the four infomercials that I was asked to watch. Ninety-nine percent of And the it was directed towards relieving pain. beauty of that scam was that people were told, well, it doesn't work for everybody. So if it doesn't work for you, well, you are one of the, you know, few percent that the bracelet does not relieve pain for. Beautiful scam. However, that's my own perception of what was done, but the plaintiffs 115 1/3/2006 20060103 AM Casey Trial Closing 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 other than the state of Illinois, if they occurred in other states. And there is some testimony that there was at least one show in Las Vegas. The bracelets were received by out of state residents in those other states. They were worn by out of state residents in those other states. Those out of state residents in those other states would have known in their own minds whether or not they believed those bracelets worked for them or did not work for them. Those out of state residents would have contacted Q-Ray from those other states with regard to returning the bracelets. The majority of acts would have occurred in the states outside of Illinois. So I really do believe that Avery and Gridley and Price will apply in this particular case to the Illinois Consumer Fraud & Deceptive Practices Act. And if there was a class under that act, it would only be Illinois residents. With regard to the Illinois residents in this particular case, the testimony of those members of the Illinois class, I believe, was totally insufficient to establish the Deceptive Practices Act, although in my mind I believe the actions of 123 1/3/2006 20060103 AM Casey Trial Closing 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Q-Ray were in fact in violation of the act. think it was sufficiently shown by the I don't representatives of the class with regard to the -what they had viewed, when they had viewed it, how they had viewed it in this particular case or whether or not anything that they had viewed was the basis for their purchase. In Mr. Clarke's case it appeared he purchased it based on representations over the telephone and in person at Q-Ray. Then I looked at what damages under the -- for the Illinois class under the act, and the damages were totally inadequate, at least what was shown by the plaintiffs in this case. You know, I initially began doing my own spreadsheet based on those exhibits that Mr. Kimbarovsky had alluded to in his closing argument, and I found that in trying to do that there was certain information that was lacking. One with regard to the sale to wholesalers It in those particular years, 2003, 2004, 2005. wasn't broken down with regard to sales to wholesalers in those particular years in the State of Illinois, and knowing that, because of certain testimony, there was at least evidence that there was some other website other than QT's website that 124

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