Loggerhead Tools, LLC v. Sears Holdings Corporation

Filing 456

MOTION by Defendants Apex Tool Group, LLC, Sears Holdings Corporation, Counter Claimants Apex Tool Group, LLC, Sears Holdings Corporation for judgment as a Matter of Law (Attachments: # 1 Table of Appendices, # 2 Appendix 1, # 3 Appe ndix 2-1, # 4 Appendix 2-2, # 5 Appendix 2-3, # 6 Appendix 2-4, # 7 Appendix 2-5, # 8 Appendix 2-6, # 9 Appendix 2-7, # 10 Appendix 2-8, # 11 Appendix 2-9, # 12 Appendix 2-10, # 13 Appendix 3 - PTX 1, # 14 Appendix 3 - PTX 3, # 15 Appendix 3 - PTX 4, # 16 Appendix 3 - PTX 51, # 17 Appendix 3 - PTX 119, # 18 Appendix 3 - PTX 157, # 19 Appendix 3 - PTX 175, # 20 Appendix 3 - PTX 467, # 21 Appendix 3 - PTX 503, # 22 Appendix 4 - DTX 1, # 23 Appendix 4 - DTX 2 , # 24 Appendix 4 - DTX 3, # 25 Appendix 4 - DTX 5, # 26 Appendix 4 - DTX 7, # 27 Appendix 4 - DTX 8R, # 28 Appendix 4 - DTX 9, # 29 Appendix 4 - DTX 9R, # 30 Appendix 4 - DTX 11, # 31 Appendix 4 - DTX 11R, # 32 Appendix 4 - DTX 23, # 33 Appendix 4 - DTX 24, # 34 Appendix 4 - DTX 74, # 35 Appendix 4 - DTX 75, # 36 Appendix 4 - DTX 212, # 37 Appendix 4 - DTX 213, # 38 Appendix 5)(Sernel, Marcus)

APPENDIX 2-2

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1

Designation
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Source

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Pope, Barry 2015-10-07

00:00:04

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00:45:15

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the record.

7:25

A. Barry William Pope.

Pope, Barry 2015-10-07

00:00:04

00:00:04

9:15

under oath today?

9:17
11:2 -11:14

Q. And you understand that you are testifying

9:16

3

A. I do.

Pope, Barry 2015-10-07
11:2
11:3

00:00:31

00:00:08

Could you please give just a general
overview of your educational background post high

11:4

school?

11:5

A. I graduated from -- do you want from high

11:6

school?

11:7

Q. After high school.

11:8

A. After high school. Okay.

11:9

I graduated from Michigan State in 1984 as

11:10

a packaging engineer, and then I also have a

11:11

master's from DePaul University. I think it's

11:12

Q. What is your master's in?

11:14
22:10 -22:16

1995.

11:13

4

A. MBA with marketing emphasis.

Pope, Barry 2015-10-07

00:00:20

00:00:39

22:10

you started with Sears?

22:12

A. I'm thinking it was 2010.

22:13

Q. And what was your initial position at

22:14

Sears?

22:15

A. Initial and only. I was the product

22:16
24:10 -24:13

Q. Do you remember approximately what year

22:11

5

manager for Craftsman hand tools.

Pope, Barry 2015-10-07

00:00:05

24:10

A. I do not.

24:12

Q. When did you leave Sears?

24:13
25:7 -25:20

Q. Do you currently work for Sears?

24:11

6

A. In 2014.

Pope, Barry 2015-10-07

00:00:50

25:7

were?

25:10

11:14:33PM

overview of what your general responsibilities

25:9

5/4/2017

Q. What were your -- can you give me an

25:8

Printed:

Barcode

Q. Could you please state your full name for

7:24

9:15 -9:17

Media File

00:45:19

7:23

2

Remains

A. So this was a great position. It would

Page 1 of 22

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25:11
25:12

operating kind of as a buyer, working with our

25:14

vendors. Sears does not manufacture anything, and

25:15

yet we have a whole engineering team, and we do our

25:16

design and development and features. We may take

25:17

products and improve on them, and -- but,

25:18

otherwise, too, we would have vendors come to us,

25:19

and we'll say show us and try to convince us that

25:20
28:14 -28:21

product development, but here we were actually

25:13

7

have the traditional product management, new

we could take their product on.

Pope, Barry 2015-10-07
28:14

00:00:22

00:01:54

28:15

Pope, Barry 2015-10-07

00:00:10

00:02:16

Pope, Barry 2015-10-07

00:00:21

00:02:26

M4.10

00:42:28

Pope_B-100715-1of2

M4.11

Q. Did you review any documents yesterday in

29:11

preparation for today's deposition?

29:12

A. We went over e-mails.

29:13

Q. Did those e-mails refresh your

29:14

recollection about past events?

29:15

A. It helped a little bit.

Pope, Barry 2015-10-07

00:00:04

00:02:47

30:11

Q. Did you sign any type of representation

30:12

agreement with Mr. Hilmert's firm?

30:13

A. Yes.

Pope, Barry 2015-10-07

00:00:39

00:02:51

30:25

Q. Are you paying Mr. Hilmert or his firm for

31:1

their representation today?

31:2

A. I am not.

31:3

Q. Do you know who is?

31:4

A. It would be speculation, but since you

31:5

have these gentlemen here and the introductory

31:6

comments said Sears and Apex.

31:7

Q. Are you being compensated for your

31:8
11:14:33PM

Pope_B-100715-1of2

A. Five hours, six hours.

29:10

5/4/2017

00:42:32

last?

29:5

Printed:

M4.9

Q. Approximately how long did this meeting

29:4

30:25 -31:11

Pope_B-100715-1of2

A. That is correct.

29:3

11

00:42:53

Q. That would be Mr. Hilmert and Mr. Lenihan?

28:21

30:11 -30:13

M4.8

A. The two gentlemen that are sitting here.

28:20

10

Pope_B-100715-1of2

Q. Who is "we"?

28:19

29:10 -29:15

00:43:03

refresh my memory yesterday.

28:18

9

M4.7

A. We had meeting where we just went over to

28:17

29:3 -29:5

Pope_B-100715-1of2

deposition?

28:16

8

00:43:25

What did you do to prepare for today's

testimony today?
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A. I am being compensated for the time lost.

31:10

12

31:12 -31:21

Q. How much are you being compensated?

31:11

A. $125 an hour.

Pope, Barry 2015-10-07
31:12

00:00:29

00:03:30

00:40:07

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M4.15

yesterday's preparation time?

31:21

A. Just travel time to and from.

Pope, Barry 2015-10-07

00:00:24

00:03:59

36:13

Q. Mr. Pope, you've just been handed

36:14

Exhibit 3. At the bottom of this document is what

36:15

we call a Bates stamp. That's where it says

36:16

SEARS_003129.

36:17

A. Yes.

36:18

Q. The top of this document, it says from Dan

36:19

Brown, and it says to Barry Pope; do you see that?

36:20

A. Yes.

Pope, Barry 2015-10-07

00:00:49

00:04:23

36:23

Q. And this e-mail is dated November 1, 2010;

36:24

is that correct?

36:25

A. Yes.

37:1

Q. Do you see where it says "Barry, It was

37:2

great meeting you at the ACE show"?

37:3

A. That would be the "ACE show."

37:4

Q. What is the "ACE show"?

37:5

A. Ace Hardware.

37:6

Q. Is this an annual show?

37:7

A. I think they have it a couple of times.

37:8

They have what we call a spring show and a fall

37:9

show.

37:10

Q. Do you recall if this was the first time

37:11

that you ever met Mr. Brown?

37:12
37:13

And feel free to review the e-mail.
A. I would believe, yes.

Pope, Barry 2015-10-07

00:00:39

00:05:12

38:11

Q. Do you recall anything else about your

38:12

conversation with Mr. Brown related to the Ace

38:13

11:14:33PM

M4.14

compensated for other than today's time and

31:20

5/4/2017

Pope_B-100715-1of2

Q. Is there any other time that you're being

31:19

Printed:

00:40:56

A. Yes.

31:18

38:11 -38:24

M4.13

yesterday preparing?

31:17

15

Pope_B-100715-1of2

Q. Does that include the time that you spent

31:16

36:23 -37:13

00:41:20

A. Yes.

31:15

14

M4.12

today's deposition?

31:14

36:13 -36:20

Pope_B-100715-1of2

Q. And is that for the time you spend at

31:13

13

00:41:49

show?

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A. I only recall a total of like, I think,

38:15

two conversations with him.

38:16

What was interesting on this one, where he

38:17
38:18

Northwestern. And the intrigue on my part was I

38:20

always wanted to teach at the college level in the

38:21

product management realm, but I didn't know that

38:22

even existed. So it was more focused on, we'll

38:23

say, outside work communication and opportunities

38:24
39:25 -40:11

about him being an inventor and then teaching at

38:19

16

intrigued me was in the conversation here we talked

versus even this here.

Pope, Barry 2015-10-07
39:25

00:00:40

00:05:51

00:37:55

Pope_B-100715-1of2

M4.19

locking pliers, and then from that standpoint, too,

40:9

is you don't have to -- when you lock it, you don't

40:10

have to keep releasing and changing. You can lock

40:11

it once and keep moving on.

Pope, Barry 2015-10-07

00:00:09

00:06:31

40:12

Q. Do you recall when Sears first started

40:13

development of the Max Axess Locking Wrench?

40:14

A. Yes.

Pope, Barry 2015-10-07

00:00:44

00:06:40

41:3

Q. Can you describe what your involvement was

41:4

with the Max Axess Locking Wrench and its

41:5

development?

41:6

A. So I am the product manager, and as the

41:7

product manager, one of the main functions is

41:8

project management. As we talked earlier, I don't

41:9

have people directly reporting to me, but I'm the

41:10

leader of a cross-functional team. My

41:11

responsibility is to make sure everything is done

41:12

in a timely fashion to appease the customer and to

41:13

make sure that it is designed and functions

41:14

properly, to make sure that from a project

41:15

management standpoint, that we'll say the Is are

41:16

11:14:33PM

M4.18

standpoint, which is similar to the vice grip

40:8

5/4/2017

Pope_B-100715-1of2

to give a lot more torque from an application

40:7

Printed:

00:38:39

the locking mechanism, which, in turn, allows you

40:6

41:21 -42:12

M4.17

will tighten, and then it brings in the feature of

40:5

19

Pope_B-100715-1of2

of a wrench that as you squeeze the handles, it

40:4

41:3 -41:16

00:38:48

A. Max Axess Locking Wrench is a combination

40:3

18

M4.16

Axess Locking Wrench is?

40:2

40:12 -40:14

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Q. Mr. Pope, can you tell me what the Max

40:1

17

00:39:28

dotted and the Ts are crossed.

Pope, Barry 2015-10-07

00:00:52

00:07:24

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Q. Why did Sears become interested in

41:22

developing the Max Axess Locking Wrench?

41:23

A. So when we develop a product, our main

41:24

customer from the group that I worked in is Sears

41:25

Holdings -- excuse me -- I worked for Sears

42:1

Holdings Company. The group that I worked for is

42:2

called KCD, which stands for Kenmore, Craftsman and

42:3

Diehard, which are their main brands that Sears

42:4

owns.

42:5

Our No. 1 customer is Sears. So Sears

42:6

approached us and said "We may have an opportunity

42:7

for you. Would you be interested?"

42:8
42:9

And the answer is "Of course." Always
interested in any opportunity that is presented to

42:10

42:16 -42:21

Q. Who approached you?

42:12
20

us.

42:11

A. It would be Stephanie Kaleta.

Pope, Barry 2015-10-07

00:00:16

00:08:16

42:16

42:21
43:5 -43:11

Pope, Barry 2015-10-07

00:00:15

00:08:32

new wrench; is that correct?
A. Yes.

43:9

Q. Did you approach Apex in actually

43:10

designing and manufacturing the wrench?

43:11

A. Yes.

Pope, Barry 2015-10-07

00:01:32

00:08:47

43:12

Q. You personally?

43:13

A. So when you look at it -- I mentioned I

43:14

have 120 plus vendors. In reality, it's like an

43:15

inverted triangle. Out of those 120 vendors, maybe

43:16

20 of them, I did a lot of business with; that is,

43:17

you come down to the point, I probably had six

43:18

vendors that I would entrust to develop a product

43:19

for me. And by "entrust" I mean they, in turn,

43:20

would have the capability to do something.

43:21
43:22

11:14:33PM

M4.22

approached you with this opportunity to develop a

43:8

5/4/2017

Pope_B-100715-1of2

Q. So is it correct then that Ms. Kaleta

43:7

Printed:

00:36:32

and we'll say had a big need to be filled.

43:6

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She was having potential vendor issues,

43:5

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Pope_B-100715-1of2

A. Yes, I do.

42:20

21

00:36:47

opportunity?

42:19

M4.20

gave for this -- for having this development

42:18

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Q. Do you recall any particular reasons she

42:17

00:37:03

My key vendor was a company called Western
Forge out of Colorado. They made my pliers, and

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they made my screwdrivers. And in the same token

43:24

is Apex made our mechanic's tools. When you look

43:25

at these two companies, they are very different.

44:1

Apex is a very dynamic company, a lot of

44:2

traditional forging manufacturing company, high

44:5

quality, next to no, in fact, no innovation or no

44:6

design and development standpoint. So two very

44:7

different companies. So that would be why we

44:8
45:15 -45:17

creative; where Western Forge is an older,

44:4

23

brands, an excellent engineering group and

44:3

approached Apex.

Pope, Barry 2015-10-07

00:00:14

00:10:19

45:15

24

45:20 -46:1

Link > P347.2

Pope, Barry 2015-10-07

00:00:23

00:10:33

Pope_B-100715-1of2

M4.25

dated March 9, 2012, at 12:16 p.m., and you see

45:24

it's sent to you and Mr. McDonnell; is that

45:25

correct.

46:1

A. That is correct.

Pope, Barry 2015-10-07

00:02:03

00:10:56

46:21

Q. The next item, it says Bionic Wrench; do

46:22

you see that?

46:23

A. I do, yes.

46:24

Q. What does Bionic Wrench refer to in this

46:25

case?

47:1

A. Well, I mean it was no surprise to anybody

47:2

that we were looking at it that the Bionic Wrench

47:3

was a potential competitive tool that we could win

47:4

some business from.

47:5

Q. When you say "it was no surprise to

47:6

anybody," what do you mean by that?

47:7

A. I mean the opportunity that had been

47:8
Link > Hide

00:34:23

first e-mail in time. It's from Jill Lowe. It's

45:23

Link > P347.2.2

M4.24

This is an e-mail string. So it's going to be the

45:22

46:21 -48:5

Pope_B-100715-1of2

I'd like to start on the second page.

45:21

25

00:34:46

bearing Bates label SEARS_0000305 through 306.

45:20

Link > P347.2.1

M4.23

are marking as Exhibit 4. This is a document

45:17

Pope_B-100715-1of2

Q. Mr. Pope, you've just been handed what we

45:16

Link > P347.1

00:35:00

presented was that she had issue and then our

47:9

opportunity was targeted towards the Bionic Wrench.

47:10

Q. Do you know if the opportunity was driven,

47:11

in part, by the sales of the Bionic Wrench in the

47:12

11:14:33PM

Q. Could you elaborate?

47:15

5/4/2017

A. Yes.

47:14

Printed:

prior years?

47:13

A. So in 2011, you know, I know that that was

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47:16

a very successful thing for Sears. Along those

47:17

lines is, as we progress each year, we're given

47:18

objectives to achieve, sales objectives or

47:19

whatever. So when -- Stephanie's objectives, you

47:20

know, are based on sales. Mine are based on sales

47:21

and meeting dates and launches. It was a big

47:22

number, I guess, you know, a million or more.

47:23
47:24

And so that would already -- I mean,
unfortunately, you don't go backwards. A company

47:25

them, and I hope they want to grow them for future

48:3

successes. So I mean we did have an inkling, and

48:4

we'll say knowledge that they had had a successful

48:5
48:6 -48:10

They want to either keep them the same or grow

48:2

26

does not make any money when the sales decline.

48:1

year.

Pope, Barry 2015-10-07

00:00:14

00:12:59

48:6

48:13 -49:9

00:32:06

Pope_B-100715-1of2

M4.27

greater margins on the sale of that tool as opposed

48:10
27

basically they could potentially, you know, have

48:9

M4.26

kind of wanted to develop their own tools so

48:8

Pope_B-100715-1of2

Q. So would it be fair to say that Sears just

48:7

00:32:20

to, you know, working with an outside vendor?

Pope, Barry 2015-10-07
48:13

00:01:20

00:13:13

THE WITNESS: So when we choose a vendor, we

48:14

qualify the vendors to make sure, you know, there

48:15

is no human right issue or if they are manufactured

48:16

overseas or we pool -- like I said, I had 120

48:17

existing vendors.

48:18

But the key thing, too, is if you go in a Sears

48:19

store, you will see what I'll call national brands,

48:20

and you'll see Craftsman. And Craftsman, you know,

48:21

is the key, I'll guess, almost a private label

48:22

brand of Sears.

48:23
48:24

design the tools, you know, we have the engineering

49:2

team in place. We utilize our vendor's engineering

49:3

team to come up with a tool that surpasses even the

49:4

national brand tool, whether it be superior

49:5

function, additional functionality, and then we

49:6

also incorporate what we call our VBL, which is

49:7

visual brand language. And what that is is the

49:8

look, the feel of Craftsman tools. It's the

49:9

11:14:33PM

unconditional warranty. The other one is when we

49:1

5/4/2017

we sell to the consumer, one is, in hand tools, the

48:25

Printed:

The benefit that we have of Craftsman or that

branding.

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Pope, Barry 2015-10-07

00:00:19

00:14:33

50:1

50:17 -51:11

00:30:27

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Pope_B-100715-1of2

M4.30

Pope_B-100715-1of2

M4.31

March 12, 2012, at 9:24 a.m.; do you see that?

50:5
29

e-mail from Eric Broadaway. It's dated Monday,

50:4

M4.28

Exhibit 4. The second e-mail string, there is an

50:3

Pope_B-100715-1of2

Q. If you could turn to the first page of

50:2

Link > P347.1.3

00:30:46

A. I do, yes.

Pope, Barry 2015-10-07

00:01:06

00:14:52

50:17

Q. Do you see the subject line? It says

50:18

"Craftsman replacement for Bionic Wrench"; do you

50:19

see that?

50:20

A. I do see that, yes.

50:21

Q. I'd like to go to the e-mail above that.

Link > P347.1.4

50:22

It's dated March 12 at 8:32 a.m.; do you see that?

Link > P347.1

50:23

A. I do, yes.

50:24

Q. Do you see the picture there?

50:25

A. Yes.

51:1

Q. Can you tell me what that is?

51:2

A. That is, it looks like, when I say "a

51:3

picture," it looks like a rendering of potential

51:4

mechanism for our Max Axess. This would have been,

51:5

I'm assuming, based on the e-mail here, a very

51:6

initial look at it.

51:7

Q. And based on the date of this e-mail, does

51:8

that refresh your recollection at all as to when

51:9

the development of the Max Axess Locking Wrench

Link > Hide

51:10

30

52:24 -53:2

began?

51:11

A. It would be around this time period.

Pope, Barry 2015-10-07

00:00:16

00:15:58

00:29:21

52:24
52:25

through 406. Take a moment, if you'd like, to skim

53:2
53:4 -54:14

Bates number for this document is SEARS_0000405

53:1

31

Q. Mr. Pope, we just handed you Exhibit 5,

over this e-mail.

Pope, Barry 2015-10-07

00:01:48

00:16:14

53:4

Q. At the very top of this e-mail, it says

53:5

from Barry Pope to Jill Lowe, Matt McDonnell, and

53:6

it's dated March 9, 2012, at 1:57 p.m.; do you see

53:7

Q. And do you see you wrote "Updates in red

53:10

below"; do you see that?

53:11

A. Yes.

53:12

Q. If we look at No. 4, under Bionic Wrench.

53:13

A. Correct.

53:14

11:14:33PM

A. I do, yes.

53:9

5/4/2017

that?

53:8

Printed:

00:29:05

Q. Do you see where you included comments

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53:15

below that where it says "Huge interest. Can you

53:16

work miracles and get this in time for Q4? It's

53:17

good to reach for the stars"?

53:18

A. Correct.

53:19

Q. Could you elaborate on what you meant by

53:20

"huge interest"?

53:21

A. Again, based on what we knew from prior

53:22

years in the sales, that this was, you know, a big

53:23

dollar volume potential.

53:24

Q. And what did you mean when you wrote "Can

53:25

you work miracles and get this in time for Q4"?

54:1

A. So I think I had alluded to that a little

54:2

bit prior when I said I had my two vendors. These

54:3

are the monster vendors for the hand tools. You

54:4

had -- excuse me -- Western Forge and Apex. When

54:5

you develop the products, you go through a whole

54:6

variety of different steps from design to

54:7

development to prototypes to production to shipping

54:8

and everything, and there is lots of in between,

54:9

and that's what I mean by project management.

54:10
54:11

This would have been one to hit Q4 that a
lot of extra effort and prioritization had to be

54:12

55:13 -55:22

Q. What sort of extra effort was needed?

54:14
32

done to be able to meet a ship time of Q4.

54:13

A. Just prioritization. Maybe resources.

Pope, Barry 2015-10-07

00:00:50

00:18:02

00:27:17

55:13

this document.

55:17

If you look at the second e-mail on the

55:18

string on page 249, this is an e-mail from

55:19

Mr. McDonnell. It's dated March 16, 2012, at

55:20

2:07 p.m., and it's to a number of people,

55:21

55:23 -57:1

Link > P345.1.1

including you; is that correct?

55:22
33

A. That is correct.

Pope, Barry 2015-10-07

00:01:45

00:18:52

00:26:27

55:23

A. Yes.

56:2

Q. What can you tell me about the style of

56:3

virtual brainstorming.

56:4

A. One of the things Sears likes to do is to

56:5

11:14:33PM

virtual brainstorming"; do you see that?

56:1

5/4/2017

have had luck in the past with this style of

55:25

Printed:

Q. And it says "Hello, creative giants. We

55:24

Link > Hide

M4.33

SEARS_0000249 through 250. Take a moment to review

55:16

Pope_B-100715-1of2

marked as Exhibit 6. It bears Bates No.

55:15

M4.32

Q. Mr. Hope, you've just been handed what's

55:14

Link > P345.1

Pope_B-100715-1of2

give names to the product. Some companies do; some

Page 9 of 22

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56:6

companies don't. A lot of times a name to a

56:7

product in a retail environment is important. It

56:8

gives you a different way to identify the product.

56:9

Here, what we do as a group -- and these are all --

56:10

for the most part, these are engineers, product

56:11

managers, and when I'm saying engineers -- let me

56:12

just scan this. These are industrial engineers.

56:13

So these are the ones who are working on that VBL.

56:14

And then we have -- we include the buying

56:15

team, and that buying team on here was Adam

56:16

Whitney, Stephanie Kaleta and Stephanie Cromer, and

56:17

the rest, like behind that are the product -- it's

56:18

the product team. So you have industrial

56:19

designers, the product team. Colin Knight is an

56:20

engineer. He's in charge of engineering.

56:21

And so what we are doing is with this

56:22
56:23

you can see from above is they'll throw out a whole

56:25

variety of names, and you know, then, ultimately,

57:1
57:22 -58:1

we just have internal competition per se, and as

56:24

34

being part of your creative team and working on it,

usually, we'll pick one.

Pope, Barry 2015-10-07

00:00:12

00:20:37

00:24:42

57:22
57:23

58:2 -59:4

Pope, Barry 2015-10-07

00:01:35

00:20:49

were aware of?

58:4

A. So when you do product development, of

58:5

course you have -- we'll say you do research on or

58:6

the engineers do, I should say, we'll go back and

58:7

look at patents. Whether it be patents for the

58:8

existing item that we're competing against or going

58:9

to compete against, which would come out, or for,

58:10

I'll call it, prior artwork, and so in this case,

58:11

obviously, that was done.

58:12

It was done by both Apex, and then our

58:13

group of engineers review that. And so the

58:14

mechanism or the way that we were conducting the

58:15

clamping and everything was done entirely

58:16

different. Engineers will say it's part of their

58:17

task, I guess, to do design-arounds. That's what

58:18

11:14:33PM

00:24:30

Q. What were the other differences that you

58:3

5/4/2017

M4.35

A. Nope.

58:2

Printed:

Pope_B-100715-1of2

in the market?

58:1
35

that Sears and Apex were developing versus what was

57:25

M4.34

mechanism is the only difference between the tool

57:24

Pope_B-100715-1of2

Q. Is it your understanding that the locking

competition is, to look at something and figure out

Page 10 of 22

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58:19

a different way to do it. We'll say create a

58:20

better mouse trap.

58:21

And so the locking feature, like I said,

58:22

was an add that we had. We knew that it brought it

58:23

benefit. Part of that, too, I mean I knew

58:24

firsthand of the benefit, having dealt with locking

58:25

then, you know, again, the way we were achieving

59:3

our mechanism was different, the gripping

59:4
59:9 -60:3

grip. They are called locking wrench pliers. And

59:2

36

wrenches, which has the synonymous name of vice

59:1

mechanism.

Pope, Barry 2015-10-07
59:9

00:01:06

00:22:24

00:22:55

Pope_B-100715-1of2

M4.36

00:21:49

Pope_B-100715-1of2

M4.37

00:21:39

Pope_B-100715-1of2

M4.38

00:21:36

Pope_B-100715-1of2

M4.39

Q. Do you know if the patents -- if

59:10

Loggerhead's patents were reviewed in connection

59:11

with any design-around or the designing of the Max

59:12

Axess Locking Wrench?

59:13

A. That would have been included in the

59:14

patents. So, again, as the project manager portion

59:15

of a product manager, my job is to make sure that

59:16

we are not infringing on patents, and by that

59:17

I don't personally look at that. I rely on the

59:18

resources and those much more talented than I,

59:19

which would be the engineers.

59:20

In this case, the engineers, the group was

59:21

engineering manager who acts more as a manager in

59:24

the sense may not necessarily have to do, I'll call

59:25

it, the ground work. That would be Iqbal Singh.

60:1

But I mean that's done on whether it be on the

60:2

LoggerHead project or any project. That's basic

60:3
66:5 -66:7

manufacture this, and then I also utilize my

59:23

37

from Apex that we had hired on to help design and

59:22

product development.

Pope, Barry 2015-10-07

00:00:10

00:23:30

66:5

66:9 -66:9

we're marking as Exhibit 8. It's a document,

66:7
38

Q. Mr. Pope, you've just been handed what

66:6

Link > P360.1

single-page document SEARS_000048.

Pope, Barry 2015-10-07
66:9

39

66:13 -66:19

00:00:03

00:23:40

MR. HILMERT: 00408 for the record, not 48.

Pope, Barry 2015-10-07

00:00:21

00:23:43

66:13

Q. The second e-mail in the middle of the

66:14

page is from Kimberly Flanagan. It's dated

66:15

5/4/2017

11:14:33PM

A. I do, yes.

66:17

Printed:

April 17, 2012, at 9:36 a.m.; do you see that?

66:16

Q. Ms. Flanagan is national account manager

Page 11 of 22

Pope B PLAYED on 5_4 20151007 PA DC on 5-1-17
66:18
66:19
40

67:2 -67:11

for Apex Tool Group; is that correct?
A. Correct.

Pope, Barry 2015-10-07

00:00:22

00:24:04

67:2
67:3

Pope_B-100715-1of2

M4.42

A. I do, yes.

67:9

Q. Do you recall if Ms. Flanagan actually

67:10

brought a prototype?

67:11

A. She did bring a prototype, yes.

Pope, Barry 2015-10-07

00:00:48

00:24:26

70:15

Q. Perhaps this will help. I am handing you

70:16

a document that's being marked as Exhibit 10. It

70:17

Link > P349.1

M4.41

2:00 o'clock"; do you see that?

67:8

70:15 -71:4

Pope_B-100715-1of2

Bionic Wrench prototype by for your meeting at

67:7

41

00:20:53

Q. And it says "I'm going to be bringing the

67:6

M4.40

A. It was sent to myself and Matt, yes.

67:5

Pope_B-100715-1of2

is that correct?

67:4
Link > P360.1.1

00:21:15

Q. And this e-mail was sent to you as well;

bears Bates No. 00000309.

70:18

This document was produced to us by Sears

70:19
70:20

A. I do, yes.

70:24

Q. Do you recall having seen this document

70:25

before?

71:1

A. Sure, yes.

71:2

Q. And this wrench was intended to be a

71:3

version of LoggerHead Bionic Wrench; is that

71:4
71:6 -71:19

Bionic 2.0 Wrench"; do you see that?

70:23

Link > Hide

see it says "Product Design and Intent Proposal

70:22

42

native document is the second page. At the top you

70:21

Link > P349.1.1

natively, hence the placeholder, and the actual

correct?

Pope, Barry 2015-10-07

00:00:51

00:25:14

71:6
71:7

Loggerhead's. Again, as I said, from a product

71:8

standpoint, we looked at the competitive landscape

71:9

00:20:05

THE WITNESS: Absolutely not a version of

that was out there of which, of course, the bionic

71:10

Ts in regard to patent reviews. The mechanism on

71:14

here is different and then, again, adding features,

71:15

which would be the locking mechanism, calling out

71:16

the size, that little window that you see here and

71:17

then adding what I'll call is Craftsman VBL, which

71:18

is handle design, the graphics, the color, all of

71:19

11:14:33PM

done all of the dotting of the Is, crossing of the

71:13

5/4/2017

but this was designed in such a manner that we had

71:12

Printed:

was part of that. The opportunity was presented,

71:11

those different elements.

Page 12 of 22

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43

71:21 -72:6

Pope, Barry 2015-10-07
71:21

00:00:34

00:26:05

Pope, Barry 2015-10-07

00:00:11

00:26:39

Pope_B-100715-2of2

M4.47

marked as Exhibit 12. It's a document Bates

77:19

numbered SEARS_0000314.

Pope, Barry 2015-10-07
77:20

00:01:08

00:26:50

Once again, this document was produced to

77:21

us natively. So the first page is a placeholder,

77:22

and the following two pages are the actual native

77:23

file. Do you see the first page where it says "Max

77:24

Axess Adjustable Wrench"?

77:25

A. I do, yes.

78:1

Q. Can you tell me what this program summary

78:2

is?

78:3

A. So Apex, as a vendor, when they would put

78:4

together a program for us, would do exactly what

78:5

you see here, the description. This is kind of a

78:6

quick overview of what the product is

78:7

accomplishing, and then below you see the items

78:8

that are included in that. They would give them a

78:9

couple different ways of pricing, give estimated

78:10

margin, their suggested retail price, and then also

78:11

on here we'll see where they aren't listed though

78:12

is pack quantities.

Pope, Barry 2015-10-07

00:00:08

00:27:58

79:11

Q. And everyday retail price, is this what

79:12

Apex suggested this sell for?

79:13

A. This is what they suggested it sells for.

Pope, Barry 2015-10-07
79:16

00:00:30

00:28:06

Do you know what factors go into

79:17

determining the everyday retail price?

79:18

A. So they have, with the amount of business

79:19

11:14:33PM

00:17:13

Q. Mr. Pope, we've just handed you what we

77:18

5/4/2017

M4.46

A. This looks pretty darn close, yeah.

77:17

Printed:

Pope_B-100715-2of2

Axess Locking Wrench is what's pictured here?

72:6

79:16 -80:1

00:17:21

Q. So would it be correct to say that the Max

72:5

47

M4.45

that.

72:4

79:11 -79:13

Pope_B-100715-2of2

and 2.0, I don't know what they are referring to

72:3

46

00:18:29

competition. I mean there is no secret to that,

72:2

Link > Hide

M4.44

obviously, is coming from -- that was the

72:1

Link > P350R.3

Pope_B-100715-2of2

always give them different names, and bionic,

71:25

77:20 -78:12

00:18:40

A. So when you label a project, I mean, we'll

71:24

45

M4.43

"Bionic 2.0 Wrench" in the title?

71:23

77:17 -77:19

Pope_B-100715-1of2

Q. What is your understanding of why it says

71:22

44

00:19:14

they do with us, they know, we'll say, what we

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Pope B PLAYED on 5_4 20151007 PA DC on 5-1-17
79:20
79:21

on any product development part of what you're

79:23

doing is a competitive analysis or what we call

79:24

landscape where you will look and see what the

79:25

competition is selling their product for so that

80:1
80:18 -80:20

acceptable margin ranges. The other thing, again,

79:22

48

consider or what Sears, in this instance, considers

you're competitive with that.

Pope, Barry 2015-10-07

00:00:10

00:28:36

80:18

49

80:23 -81:1

M4.48

00:16:33

Pope_B-100715-2of2

M4.49

Pope_B-100715-2of2

M4.50

00:15:55

Pope_B-100715-2of2

M4.51

00:15:38

Pope_B-100715-2of2

M4.52

00:15:22

Pope_B-100715-2of2

M4.53

00:15:15

Pope_B-100715-2of2

M4.54

margin would need to be in terms of developing a

80:20

Pope_B-100715-2of2

Q. Are there guidelines for what the ultimate

80:19

00:16:43

tool?

Pope, Barry 2015-10-07
80:23

00:00:13

00:28:46

THE WITNESS: Not that I, you know, not that

80:24
80:25

81:3 -81:10

in a whole range depending on the product. There

81:1
50

I know of, I mean, because margins themselves come
is so many factors that go into it, you know.

Pope, Barry 2015-10-07
81:3
81:4

00:00:25

00:28:59

00:16:20

Q. Let me try to narrow it a little bit.
For hand tools, is there any type of

81:5

general guideline that Sears requires? For

81:6

example, hand tools need to be between 30 percent

81:7

want to make as much money as you can, but you need

81:10
81:11 -81:17

A. On a general basis, no. Obviously, you

81:9

51

or higher? Anything like that?

81:8

to be competitive.

Pope, Barry 2015-10-07

00:00:17

00:29:24

81:11

Q. Do you know if the estimated landed

81:12

margin, if that was the ultimate -- strike that.

81:13

Did these estimates wind up being

81:14
81:15

Q. Who would know that?

81:17
81:21 -81:24

A. I don't know.

81:16

52

accurate, to your knowledge?

A. That would be Stephanie.

Pope, Barry 2015-10-07

00:00:16

00:29:41

81:21
81:22

81:25 -82:2

through 321. Take a moment, if you need to, to

81:24
53

marked as Exhibit 13. It's Bates No. 00000318

81:23

Link > P352.1

Q. Mr. Pope, we just handed you what's been

review the document.

Pope, Barry 2015-10-07
81:25

Printed:

5/4/2017

11:14:33PM

first page.

82:2
82:3 -82:9

00:29:57

I only want to ask questions about the

82:1

54

00:00:07

A. I'm good on the first page.

Pope, Barry 2015-10-07

00:00:21

00:30:04

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82:3
82:4

A. So, again, I guess just for clarification,

82:7

it's really -- yes, I am one of those, but this is

82:8

-- the primary people on this are the two

82:9

Link > P352.1.1

that correct?

82:6

83:4 -83:19

was sent to you on May 16, 2012, at 9:59 a.m.; is

82:5

55

Q. This is an e-mail from Jill Lowe, which

Stephanies, the buyers, again.

Pope, Barry 2015-10-07

00:00:44

00:30:25

83:4

83:13

So a function of any buyer, as soon as
they get a price, to beat the hell out of them and

83:14

Q. The last sentence in subpart (b) says "You
understand the CM version is upgraded from the

83:17

bionic version -- locking feature and cushion grip

83:18

handles"; do you see that?

83:19
83:22 -84:7

get the best price that they can.

83:15
83:16

56

A. Yes.

Pope, Barry 2015-10-07

00:00:47

00:31:09

83:22

Q. And, again, the only two distinguishing

83:23

features that are in this e-mail are the locking

83:24

features and the cushion grip handles; is that

83:25

been added. The other thing -- and I just wanted

84:3

to see if it's on here where we talk about the grip

84:4

strength. Those are the ones that are mentioned

84:5

within here, yes, and those are being mentioned --

84:6

again, as a vendor, she's trying to battle back

84:7

Link > P352.1.3

A. So those are the two features that had

84:2

85:20 -86:9

correct?

84:1

57

M4.57

A. I would assume that is LoggerHead.

83:12

Link > P352.1.2

Pope_B-100715-2of2

to?

83:11

00:13:23

Q. Do you know who "current vendor" refers

83:10

M4.56

A. Yes.

83:9

Pope_B-100715-2of2

current vendor"; do you see that?

83:8

00:14:10

price was too high based on your quote from your

83:7

M4.55

-- Jill says "You had commented that you felt the

83:6

Pope_B-100715-2of2

Q. Under subpart (b), Stephanie -- or sorry

83:5

00:14:54

with Stephanie on why the price is what it is.

Pope, Barry 2015-10-07

00:00:41

00:31:56

85:20

Q. It says, at the very end, "It's possible

85:21

to change and not alter the size range of the

85:22

wrench which matches the Bionic Wrench today"; do

85:23

11:14:33PM

Q. Is it always the intention to have a

86:1

5/4/2017

A. Yes.

85:25

Printed:

you see that?

85:24

handle width be the same as the Bionic Wrench --

Page 15 of 22

Pope B PLAYED on 5_4 20151007 PA DC on 5-1-17
86:2

LoggerHead Bionic Wrench?

86:3

A. It was not.

86:4

Q. Do you know if the width of Loggerhead's

86:5

handle was measured and consulted in the design

86:6

Link > Hide

Q. It just, by happenstance, wound up being

86:9
86:11 -86:15

A. I don't believe it was.

86:8

58

process of the Max Axess Locking Wrench?

86:7

the exact same size?

Pope, Barry 2015-10-07
86:11

00:00:15

00:32:37

Pope, Barry 2015-10-07

00:00:25

00:32:52

M4.61

Craftsman, it can't be worse than the competition

86:23

that you're going after. We make it equal to or

86:24

better, and we add extra features.

Pope, Barry 2015-10-07

00:00:11

00:33:17

88:4

Q. Mr. Pope, we just handed you what is

88:5

marked as Exhibit 14. It's a document that bears

88:6

Bates No. SEARS_0000266 through 269.

Pope, Barry 2015-10-07

00:00:47

00:33:28

92:21

Q. Do you know why you were asked to compare

92:22

the strength between the Max Axess Wrench and

92:23

LoggerHead?

92:24

A. Well, again, as I mentioned, as we put

92:25

together a Craftsman tool, you want to be equal or

93:1

better to in, we'll say, performance specifications

93:2

with enhancements in regards to product features,

93:3

and so he was just asking me in regards to the

93:4

comparable.

93:5

The other thing is you'll see that when we

93:6

lock it, we actually get more torque strength. So

93:7

that was one of the benefits of the locking

93:8

mechanism.

93:9

And, actually -- I'm sorry. I did read it

93:10

before, but as I read it again, he makes mention of

93:11

11:14:33PM

Pope_B-100715-2of2

A. When you are making an item, especially a

86:22

5/4/2017

00:11:51

LoggerHead's Bionic Wrench?

86:21

Printed:

M4.60

accommodate the same size of more pieces as

86:20

Link > Hide

Pope_B-100715-2of2

Axess Locking Wrench to make sure that it would

86:19

92:21 -93:11

00:12:02

Q. And was it a goal in designing the Max

86:18

61

M4.59

be reviewed.

86:17

Link > P346.1

Pope_B-100715-2of2

the size range, that would be something that would

86:15

88:4 -88:6

00:12:27

everything, and if that is an element that helps on

86:14

60

M4.58

benchmarking, you take into consideration

86:13

86:17 -86:24

Pope_B-100715-2of2

THE WITNESS: Again, when you're doing a

86:12

59

00:12:42

that again, about the locking position.

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93:23 -95:11

Pope, Barry 2015-10-07

00:02:09

00:34:15

93:23

A. Design from what standpoint?

94:3

As I said -- well, I'll just leave it at

94:4

that.

94:5

Q. Did you seek to design the tool from

94:6

scratch?

94:7

A. No.

94:8

Q. Did you use any other products as a basis?

94:9

A. Sure. As I've mentioned, I think numerous

94:10

times in the deposition, one of the key things that

94:11

you do in any product development is benchmarking.

94:12

So you'll look at -- part of the benchmarking is

94:13

looking at competitive tools. And, obviously, as

94:14

product people, we have targets on who -- and

94:15

knowledge of who those are. So that's where that

94:16

would come from.

94:17

Q. So I believe you testified earlier the

94:18

Bionic Wrench was one of the --

94:19

A. That is correct.

94:20

Q. Did you look at any other products in

94:21

designing the Max Axess Locking Wrench?

94:22

A. Well, and, again, we talked about,

94:23

especially with my background being with American

94:24

Tool, the vice grip pliers, which, again, has -- is

94:25

another type of pliers, call it a mouse trap, if

95:1

you would allow me, and so the advantage of a vice

95:2

grip was the locking mechanism. So, yes, I mean

95:3

we'll take features from different items, similar

95:4

in nature, and combine them.

95:5

Q. Other than Loggerhead's Bionic Wrench and

95:6

the vice grip, do you recall any other tools with

95:7

different inspiration?

95:8

A. Those were, I think, the primaries.

95:9

And, I guess, you know, the other thing

95:10

95:12 -96:6

that you're looking at too, is pliers, you know, in

95:11
63

general.

Pope, Barry 2015-10-07

00:01:05

00:36:24

00:08:55

95:12

look similar to the Bionic Wrench?

95:15

11:14:33PM

team or Apex to make the Max Axess Locking Wrench

95:14

5/4/2017

Q. Were any instructions given to the design

95:13

Printed:

M4.63

design?

94:2

Pope_B-100715-2of2

sort -- what sources were used for determining its

94:1

M4.62

when the Max Axess was being developed, what

93:25

Pope_B-100715-2of2

Q. Before we go to this, I want to ask you,

93:24

00:11:04

A. No.

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Pope B PLAYED on 5_4 20151007 PA DC on 5-1-17
95:16

I guess I would like to elaborate a little

95:17

bit. Again, we talked about that VBL, and VBL,

95:18

visual brand language, is one of the key elements

95:19

of any Craftsman tool. As I mentioned, we have

95:20

this whole variety of vendors, and what the

95:21

industrial designers do through VBL is try to

95:22

convey the best they can or police, actually, the

95:23

way items look. So we do not design things to look

95:24

like, we'll say, our competition.

95:25

Q. Do you design them to function the same

96:1

way as your competition?

96:2

A. No.

96:3
96:4
96:5
96:6
64

117:7 -117:14

Link > P359.1

MR. BLOCK: Just to clarify for the record,
that was a no?
THE WITNESS: No. I'm sorry. Stronger, no,
absolutely not.

Pope, Barry 2015-10-07

00:00:29

00:37:29

00:07:50

117:7

A. Correct.

Pope, Barry 2015-10-07

00:00:15

00:37:58

00:07:21

117:15

Q. Do you know what Ms. Trainer's role was

117:16

within --

117:17

A. She was on the true what we'll call it

117:18

marketing side. She was part of KCD, which is the

117:19

team that I'm on, and then she was on the marketing

117:20

and the branding.

Pope, Barry 2015-10-07
117:21

00:00:18

00:38:13

00:07:06

Q. And she says "Hi Barry, Can you send me

117:22

all images of Bionic Wrench"; do you see that?

117:23

A. Yes.

117:24

Q. Do you know why she's asking you for

117:25

A. She is not asking for images of the Bionic

118:2

Wrench. She was asking for the Max Axess Locking

118:3
118:4 -118:12

images of Bionic Wrench?

118:1

67

Wrench.

Pope, Barry 2015-10-07

00:00:27

00:38:31

118:4

5/4/2017

11:14:33PM

00:06:48

Q. Do you think she is confused with regards

118:5

Printed:

M4.67

Craftsman Max Axess Wrench, right?

117:14

Link > P359.1.2

Pope_B-100715-2of2

Q. And the title of this e-mail is the

117:13

117:21 -118:3

M4.66

A. Yes.

117:12

66

Pope_B-100715-2of2

dated December 6, 2012, at 3:43 p.m., correct?

117:11

117:15 -117:20

M4.65

This is an e-mail from Amy Trainer to you

117:10

65

Pope_B-100715-2of2

It's a document bearing Bates No. SEARS_0000393.

117:9

M4.64

Q. Mr. Pope, I've just handed you Exhibit 21.

117:8
Link > P359.1.1

Pope_B-100715-2of2

to the names of the products?

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Pope B PLAYED on 5_4 20151007 PA DC on 5-1-17
118:6
118:7

A. No.
Again, the -- you know, whether it be --

118:8

and the reason I'll say no is because you have

118:9

Craftsman Max Axess. She does not have locking,

118:10

118:13 -118:17

essentially, that was a title that was thrown out

118:12
68

but it's wrench on here. And here she's calling

118:11

being a project name.

Pope, Barry 2015-10-07

00:00:11

00:38:58

118:13

119:4 -119:13

00:06:10

Pope_B-100715-2of2

M4.69

00:05:34

Pope_B-100715-2of2

M4.70

00:05:30

Pope_B-100715-2of2

M4.71

00:05:22

Pope_B-100715-2of2

M4.72

of the Max Axess Locking Wrench?

118:17
69

Wrench, do you believe her to be asking for images

118:16

M4.68

understand when she says images of the Bionic

118:15

Pope_B-100715-2of2

Q. But you -- so -- just so I am clear, you

118:14

00:06:21

A. I do, yes.

Pope, Barry 2015-10-07

00:00:36

00:39:09

119:4

Q. What do you understand her to be asking?

119:5

A. She's -- I mean, again, I go back -- she's

119:6

asking for what images I would have of our existing

119:7

product. This -- looking at this, this is a Sears

119:8

website. We had our own, which was Craftsman, and

119:9

Innovation Tools. Those are going to be ones they

119:10

Link > P359.1.3

internal that goes live ultimately. I'd be

119:13
119:14 -119:16

know if this is, we'll say live, or if this is an

119:12

70

are going to feature. I don't -- I honestly don't

119:11

speculating on that.

Pope, Barry 2015-10-07
119:14

00:00:04

00:39:45

Q. The next sentence says "This link also has

119:15

71

119:24 -120:2

the video of the competitor"; do you see that?

119:16

A. Right.

Pope, Barry 2015-10-07
119:24

00:00:08

00:39:49

Q. What do you understand the word

119:25

120:8 -120:17

"competitor" to refer to here?

120:2
72

"competitor" -- who do you understand the word

120:1

A. Bionic Wrench.

Pope, Barry 2015-10-07

00:00:24

00:39:57

120:8

Q. And even though the subject of her e-mail

120:9

is the Craftsman Max Axess Wrench, you still

120:10

believe that when she says Bionic Wrench, she's

120:11

correct tool name and the subject line and it

120:15

references --

120:16

A. Correct.

120:17
11:14:33PM

Q. Even though she's used virtually the

120:14

5/4/2017

A. When she's asking for images, yes.

120:13

Printed:

referring to the Max Axess Wrench?

120:12

Q. -- competitor's videos on the website?
Page 19 of 22

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120:18 -121:11

Pope, Barry 2015-10-07

00:01:09

00:40:21

120:18

Pope_B-100715-2of2

M4.75

00:03:18

Pope_B-100715-2of2

M4.76

00:02:44

Pope_B-100715-2of2

M4.77

an employee, as I am, of Craftsman.com. So there

120:24

00:03:36

I say it is because it says www.Sears.com. She's

120:23

M4.74

Sears. I'm talking what I think. And the reason

120:22

Pope_B-100715-2of2

which would be the images of our product from

120:21

M4.73

like someone contacted her to get those images,

120:20

Pope_B-100715-2of2

A. Correct. So when you see this, it looks

120:19

00:04:58

is a couple different websites within here.

120:25

So Sears would have -- Sears.com would

121:1
121:2

wouldn't be for me to know necessarily who that

121:6

was.

121:7

Q. And then she says "When are we allowed to

121:8

start showing the item online," question mark,

121:9

"November 1," question mark; do you see that?

121:10

A. Right. So typically we don't show an item

121:11

Link > P469.1

So she's assisting somebody, and, again, it

121:5

136:19 -136:21

Craftsman, but Craftsman would only have Craftsman.

121:4

74

we'll call it a bionic, a Stanley or whatever, and

121:3

Link > P359.1.4

have national brands, and it would have -- which

until it's available to be shipped.

Pope, Barry 2015-10-07

00:00:13

00:41:30

00:03:49

It's a document bearing Bates numbers SEARS_0005527

136:21
136:22 -137:1

Q. Mr. Pope, I just handed you Exhibit 27.

136:20

75

136:19

to 5528.

Pope, Barry 2015-10-07

00:00:18

00:41:43

136:22
136:23

138:4 -138:15

May 31, 2012, at 12:02 p.m.; do you see that?

137:1

Link > P469.1.2

an e-mail from you to Matthew McDonnell dated

136:25

76

Q. On page 5527, at the very bottom, there is

136:24

Link > P469.1.1

A. Okay.

A. Yes.

Pope, Barry 2015-10-07

00:00:34

00:42:01

138:4

Q. The next e-mail up in the string, it's

138:5

from you to Stephanie Kaleta on June 1, 2012, at

138:6

A. Yes.

138:8

Q. Under No. 2 it says "China will be stamped

138:9

in an area where part number and date code will be

138:10

Link > P469.1.3

11:06 a.m.; do you see that?

138:7

this is then black oxide so it will be less

138:11

5/4/2017

11:14:33PM

important to put the China label in an

138:15

Printed:

Q. Was it important to -- why was it

138:14

138:18 -138:19

A. Yes.

138:13

77

conspicuous"; do you see that?

138:12

inconspicuous area?

Pope, Barry 2015-10-07

00:00:05

00:42:35

Page 20 of 22

Pope B PLAYED on 5_4 20151007 PA DC on 5-1-17
138:18
138:19
78

138:21 -138:23

THE WITNESS: I mean you're just not
advertising. We are not advertising for China.

Pope, Barry 2015-10-07

00:00:06

00:42:40

138:21
138:22

79

138:24 -139:10

Pope_B-100715-2of2

M4.78

00:02:33

Pope_B-100715-2of2

M4.79

00:01:49

Pope_B-100715-2of2

M4.80

00:01:11

Pope_B-100715-2of2

M4.81

manufactured in the United States?

138:23

00:02:39

Q. Were you aware that LoggerHead's tool is
A. Yes.

Pope, Barry 2015-10-07

00:00:44

00:42:46

138:24

Q. Would it have been at a competitive

138:25

disadvantage to advertise your tool being from

139:1

A. I have worked, as I said before, for

139:5

American Tool Company, and we have done research on

139:6

made in America versus Taiwan, and that research

139:7

really has indicated that it's not a predominant

139:8

feature, the country of manufacture. You are not

139:9

advertising it as an advantage either, but it's not

139:10

Link > P472.1

Q. Why do you say no?

139:4

144:4 -144:17

A. No.

139:3

80

China when theirs was manufactured in the U.S.?

139:2

a negative.

Pope, Barry 2015-10-07

00:00:38

00:43:30

144:4

Q. Mr. Pope, we just handed you Exhibit 30.

144:5

It's Bates number SEARS_0005542 to 5543.

144:6
Link > P472.1.1

144:7

In the middle of the first page, there is
an e-mail from you to an Iqbal Singh dated

144:8

March 30, 2012, at 1:13 p.m.; do you see that?

144:9

A. Yes.

144:10

Q. It says "Iqbal, Need you to develop and

144:11

send Eric at Apex our performance specifications

144:12

for Item No. 1, Bionic II Wrench"; do you see that?

144:13

A. Yes.

144:14

Q. Would these be the performance

144:15

specifications for the tool that ultimately became

144:16

81

144:18 -145:13

the Max Axess Locking Wrench?

144:17

Link > Hide

A. Yes.

Pope, Barry 2015-10-07
144:18

00:01:10

00:44:08

Q. How were the performance specifications

144:19

determined?

144:20

A. Again, they would be determined by

144:21

combining existing specifications that might exist

144:22

in regards to similar products and modifying them

144:23

based on the operations and then by competitive

144:24

5/4/2017

11:14:33PM

Q. And am I correct that Iqbal was the one

145:1

Printed:

analysis.

144:25

who was responsible for developing these

Page 21 of 22

Pope B PLAYED on 5_4 20151007 PA DC on 5-1-17
145:2

specifications?

145:3

A. He would be, yes.

145:4

Q. Were these specifications reviewed or

145:5

approved by anybody?

145:6

A. Collectively, we -- again, I guess I said

145:7

-- and maybe shame on me -- is from a generality

145:8

is, you know, it's meet or beat the competition,

145:9

and then he would be working with Apex.

145:10

Q. Do you know if he got any specifications

145:11

from Apex?

145:12

A. He would have worked with them to develop

145:13

it.
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