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 2-7

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Designation
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Source

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Arvia, Thomas 2015-11-19

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Arvia, Thomas 2015-11-19

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A. I'm a division vice president for product

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management for Craftsman.

Arvia, Thomas 2015-11-19

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Q. Is there an agreement between Sears and Apex

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whereby Apex has agreed to indemnify Sears in

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connection with this lawsuit?

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A. That is covered under our universal terms

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Q. What's your current position?

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last name Arvia, A-r-v, as in Victor, i-a.

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A. Sure. First name is Thomas, T-h-o-m-a-s,

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name for the record?

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Q. Would you please state and spell your full

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and conditions, so per that, yes.

Arvia, Thomas 2015-11-19

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Q. I'm introducing Arvia Exhibit 21. The Bates

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number for this document starts at SEARS_4922. Just

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let me know when you have that on your screen.

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A. Okay, it's on my screen.

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Q. Is this the document to which you were

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referring entitled Universal Terms and Conditions?

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Barcode

A. Good morning.

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Media File

Q. Good morning, Mr. Arvia.

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Remains

A. This is.

Arvia, Thomas 2015-11-19
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Q. The next page of this document, page ten,

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which is at SEARS_4931, it says: Rider to Universal

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Terms and Conditions.

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A. Yes.

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Arvia, Thomas 2015-11-19
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Is Apex indemnifying Sears for the cost of

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Sears' legal defense for this lawsuit? And if -- I'm

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sorry, I meant to do this. I'm going to direct your

Link > P455.13

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attention to the rider on page 4934, which is page

Link > P455.13.1

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four of the rider, Section 11, Defense of Claims and

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Indemnity.

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A. So I'm sorry, what page again?

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Q. Bates is 4934, page 13 of the PDF, if you

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see that coming up, 13 of 41.

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Q. Is Section 11 of this exhibit the

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contractual agreement between Apex and Sears whereby

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A. Okay.

Apex is indemnifying Sears?

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of the agreement, yes.

Arvia, Thomas 2015-11-19

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Q. Is Apex indemnifying Sears for the costs of

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A. My understanding is Section 11 is that part

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Sears' legal defense of this lawsuit?

Arvia, Thomas 2015-11-19

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if I was -- if had such access to that, but my

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interpretation is it states, "Seller shall at its own

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cost and expense defend," and so that is indicating

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that the seller would bear the expense.

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Q. And the seller here is Apex?

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A. That is correct.

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Q. Do Sears and Apex have any other agreement

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or terms that have been set forth in writing with

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Link > P455.13.2

A. So again, I would ask for in-house counsel

respect to how Apex is indemnifying Sears other than

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A. No, we do not. Nothing -- I haven't

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the UTC indemnification terms?

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reviewed anything to that effect.

Arvia, Thomas 2015-11-19

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Q. And so is it your understanding that Apex is

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indemnifying Sears for -- in the event of any

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judgment that a court or jury issues against Sears

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A. Yes, that is my understanding.

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Q. And is that the case for all of the claims

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in the lawsuit? Meaning does that include the patent

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infringement claim?

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that Apex will pay that judgment?

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A. Yes, that's my understanding.

Arvia, Thomas 2015-11-19

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Q. Does the Apex indemnification of Sears cover

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any potential damages against Sears for willful

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patent infringement?

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A. Based on the UTC, our understanding is yes.

Arvia, Thomas 2015-11-19

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deposition, is it fair to say that Sears' goal was to

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5/12/2017

Q. Based on your preparation for today's

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Printed:

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make a knockoff of the Bionic Wrench right down to

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A. I would say that was not the goal.

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the try-me packaging?
Q. What was the goal?

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which you refer?

Arvia, Thomas 2015-11-19

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A. The two most notable different features were

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a locking mechanism to allow -- to allow you to lock

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the tool on a fastener, and the other one was a dual

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material handle.

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BY MR. SKIERMONT:

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Q. Do you recall anything else?

Arvia, Thomas 2015-11-19

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BY THE WITNESS:

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A. I recall on the Max Axess, there's also an

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indicator of size, a gauge with an indicator of the

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size.
Play Time for this Script:

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Total time for all Scripts in this report:

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Q. What were the different additive features to

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Printed:

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BY MR. SKIERMONT:

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different additive features to it.

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an incremental item to the assortment that had

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that the intent was to create an item that would be

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A. My interpretation of what was reviewed is

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