Heartland Recreational Vehicles LLC v. Forest River Inc

Filing 134

MOTION for Partial Summary Judgment Against Heartland for Unfair Competition by Counter Claimant Forest River Inc. (Attachments: # 1 Supplement Memorandum in Support, # 2 Appendix Statement of Material Facts, # 3 Exhibit A - Hoffman dep. tr., # 4 Exhibit B - Lung decl., # 5 Exhibit C - Creech email, # 6 Exhibit G - Stuffing email, # 7 Exhibit H - Hotel Clerk dep. tr., # 8 Exhibit I - B. Brady email, # 9 Exhibit J - B. Brady dep. tr., # 10 Exhibit K - Donat dep. tr., # 11 Exhibit L - Leonard dep. tr.)(Fountain, Ryan) See 135 for sealed exhibits. Modified on 11/3/2010 (jld).

Heartland Recreational Vehicles LLC v. Forest River Inc

Doc. 134 Att. 10

EXHIBIT DONAT EXCERPT OF DENNIS DONAT DEPOSITION TRANSCRIPT - SEPT. 24, 2010 Page 144
3 Q. And preparing for the Louisville show, Heartland typically 4 goes out and contacts the dealers it expects to meet at 5 that show, right? 6 A. Yes. 7 Q. And in that contact you typically try to get orders or 8 commitments to orders for the show? 9 A. I don't -- I guess I've never been asked to make contact 10 with the dealers, so I don't know what they do. 11 Q. But you know that salespeople are doing that prior to the 12 Louisville show, right? 13 A. I know that they are. 14 Q. You see a lot of orders come in just prior to the show, 15 don't you? 16 A. Not that I recall. 17 Q. You don't see a higher sales volume just before the 18 Louisville show? 19 A. No, I don't believe -- I don't recall seeing that. 20 Q. I see. Do you notice higher selling expenses prior to the 21 Louisville show? 22 A. I've never noticed that. 23 Q. I see. Do you know of any reason why it would be to 24 Heartland's advantage to get dealers to commit to sales 25 before a trade show?

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A. I could speculate. 2 Q. Well, based upon your years of experience in the industry,
3 I don't want you to speculate, but I want you to tell me 4 what your understanding is. Why would you try to write up 5 the orders and get the confirmations before the show? 6 A. It would be good to get a dealer's commitment to sell the 7 company's product. 8 Q. Well, you know that your dealers only have a certain 9 amount of financing they can get for trailers, right? 10 A. They have their credit limits, correct. 11 Q. Yes. And you know that most of your dealers sell other 12 lines of trailers, right? 13 A. I would believe most of them sell other lines of trailers. 14 Q. So if a dealer commits before a trade show to buy a 15 certain number of units from you, that limits the amount 16 of money he's got left to buy from someone else, doesn't 17 it? 18 A. Probably does. 19 Q. And so rather than wait to meet the dealer at the show, it

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20 would be in Heartland's best interest to sign them up 21 before the show so they get the business that their 22 competitors don't, right? 23 A. That would be logical. 24 Q. Now, we talked about these discounts and rebates, spiffs, 25 sales allowances and all the stuff you give to a dealer to

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A. Yes. 3 Q. Are there certain times of year when Heartland is more
4 inclined to give a greater allowance to the dealer in that 5 regard? 6 A. Historically during the non-peak season, the dealer 7 incentives will increase. 8 Q. And the non-peak season is when? 9 A. It starts right after July's shut down and goes through 10 the January show season, even February of the following 11 year. 12 Q. The January show season, that's the retail show season, 13 right? 14 A. Yeah, I suppose that's true. 15 Q. Have you ever heard of something called a Louisville 16 discount? 17 A. Yes. 18 Q. And what is that? 19 A. The Louisville discount can be an amount that has been 20 offered to the dealer as an incentive to write orders so 21 that sales folks can write orders at the Louisville show. 22 Q. In other words, you're trying to get a lot of sales at 23 Louisville so you give a bigger discount; is that right? 24 A. There will be additional incentives usually at Louisville 25 to promote sales.

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Q. W e talked about the financial condition of Heartland in
18 the fall of 2008 in some respects. We talked about a cash 19 flow problem. We talked about increasing -- or borrowing 20 from your line of credit and so forth, right? 21 A. We did. 22 Q. Would it be fair to say that in the fall of 2008 Heartland 23 was unable to meet large debts when due? 24 MR. IRMSCHER: Objection, lack of foundation, 25 calls for speculation.
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A. I don't believe that's a correct characterization. Q. In the fall of 2008, you stopped paying Scott Tuttle the money that you owed him, right? A. We did. Q. And you told him it was because you couldn't afford to pay

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it, right? A. That's correct.