LeMond Cycling, Inc. v. Trek Bicycle Corporation

Filing 139

Attachment 10
DECLARATION of Emily S. Zastrow in Opposition to 117 Memorandum in Support of Motion, 114 MOTION for Summary Judgment filed by Trek Bicycle Corporation. (Attachments: # 1 Placeholder for Exhibits 45,55-57,61,66,70,74, # 2 Placeholder for Exhibits 46-47, # 3 Exhibit 46, # 4 Exhibit 47, # 5 Exhibit 48, # 6 Exhibit 49, # 7 Exhibit 51, # 8 Exhibit 51, # 9 Exhibit 52, # 10 Exhibit 53, # 11 Exhibit 54, # 12 Exhibit 58, # 13 Exhibit 59, # 14 Exhibit 60, # 15 Exhibit 62, # 16 Exhibit 63, # 17 Exhibit 64, # 18 Exhibit 65, # 19 Exhibit 67, # 20 Exhibit 68, # 21 Exhibit 69, # 22 Exhibit 71, # 23 Exhibit 72, # 24 Exhibit 73, # 25 Exhibit 75, # 26 Exhibit 76)(Rolf, Benjamin) SEALED DOCUMENTS RECEIVED IN CLERKS OFFICE on 8/5/2009 (lph). Modified attachment text on 8/6/2009 (RLR).

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LeMond Cycling, Inc. v. Trek Bicycle Corporation Doc. 139 Att. 10 Case 0:08-cv-01010-RHK-JSM Document 139-11 Filed 08/05/09 Page 1 of 10 ZASTROW EXHIBIT 54 Dockets.Justia.com Case 0:08-cv-01010-RHK-JSM Document 139-11 Filed 08/05/09 Page 2 of 10 Page 1 UNITED STATES DISTRICT COURT OF MINNESOTA DISTRICT LEMOND CYCLING, Plaintiff, vs. TREK BICYCLE INC., Case 08-CV-1010 No. (RHK-JSM) CORPORATION, Defendant and Third-Party Plaintiff, vs. GREG LEMOND, Third-Party Defendant. DEPOSITION OF KEVIN ISHAUG May 11, 2009 8:30 a.m. REPORTED BY: Kathy L. Soper, CSR, RPR California CSR No. 8519 73aS8cfS-216b-4aS6-8a06-0cc8aadac110 Case 0:08-cv-01010-RHK-JSM Document 139-11 Filed 08/05/09 Page 3 of 10 Page 49 1 Confidential. Mr. Ishaug. It was authored by 2 3 4 THE WITNESS:Ishaug. MS. BRUCE:Is it all right if I -- 5 6 7 MR. WEBER: Sure. MS. BRUCE: Can we mark this, please. 8 9 (Exhibit BY MS. 176 marked for identification.) BRUCE: 10 11 Q. Okay. This is an e-mail Do you initially authored 2008. 12 by you sent to Dan Titus on March 20, 13 14 recognize this e-mail? A. Q. I do. 15 And you sent this to Mr. Titus? you are referencing 16 17 A. Q. Correct. In this e-mail a matter about 18 19 that occurred. Can you tell us a little bit 20 21 A. Q. this incident. Would you like You can I me to read the e-mail? 22 23 if you want. A. think this will tell the story as as I 24 accurately Q. recall. 25 Actually, if you can, first just tell me a 73a58cf5-216b-4a56-8a06-0cc8aadac110 Case 0:08-cv-01010-RHK-JSM Document 139-11 Filed 08/05/09 Page 4 of 10 Page 50 1 2 little A. bit in your own words what you remember about the event. 3 4 5 Well, granted, months, two gentlemen this is a year and five four months ago, so -- there my were on a that walked into store 6 7 busy Saturday in March and looking to purchase a fancy road bike. 8 9 They came in looking Madone. I for a Trek 5.0 informed them that both it was a 10 11 good option, introduced them to the LeMond brand, and showed them the LeMond Zurichs 12 13 that we had on the sales floor and said, a "This bike would be good value, less 14 15 expensive, lighter weight, and would fit better," because both of those riders were 16 taller riders, So I and Trek has a, a generally, LeMond 17 shorter top to dimension than and the ergonomics did. 18 19 suggested that both the value and fit of the LeMond them. 20 21 would be a better option for a After introducing bicycle, some the two to the 22 spending couple of hours doing and 23 general fitting telling them about 24 25 the value proposition, how the bikes work, telling them how they could expect the bike 73a58cf5-216b-4a56-8a06-0cc8aadac110 Case 0:08-cv-01010-RHK-JSM Document 139-11 Filed 08/05/09 Page 5 of 10 Page 51 1 2 3 to ride, offering test rides, which they generously took advantage off, both of the 4 5 6 7 riders indicated that they were very interested in the LeMonds, but the model 2007 and year that 1 had on the floor was they were more interested in the 2008 colors a and options. So we 8 9 pursued that, me and they were in contact with and they would following the test ride know 10 11 saying that they were going to be coming in like to if 1 1 was going 12 13 to be in. 1 1 indicated that had would be. phone received another follow-up through a 14 15 call saying that they the bicycles directly actually procured relationship like us 16 17 18 19 with Mrs. LeMond, Kathy LeMond, through their mothers, and that they would to continue to offer our services, assemble the bicycles, fit the bicycles, sell "1 them 20 21 additional products discount, more than happy to at a significant 1 at which point said, would be 22 23 fit you to the bicycles and assemble the bicycles at our market 24 25 rate," and "Please bring the bikes in, we will help you out." 73aS8cfS-216b-4aS6-8a06-0cc8aadac110 Case 0:08-cv-01010-RHK-JSM Document 139-11 Filed 08/05/09 Page 6 of 10 Page 52 1 2 3 When the bicycles were brought in, Greg LeMond's attached to the bicycles were packing slips shipped house -- bicycles shipped to 4 5 on Greg LeMond's account with the 6 7 8 9 pricing of the manufacturer's landed cost. There were three bicycles shipped, two bicycles brought into my store. I prompted to where the third bicycle was. One of the gentleman said, "We might be 10 11 selling that one to cover the cost of the first two bicycles." As 12 you can imagine, I this a made my 13 14 15 16 17 18 blood boil. goes think there is saying that like this: And pardon my candor. Don't shit where you eat. Q. Okay. At the time these young men came in, did you know who they were? A. Q. No. When 19 did you find out who a they were? was 20 21 A. They were speaking of situation that not public knowledge. They were speaking of 22 the fact that Greg had just returned from a 23 24 25 trip to Taiwan where he a was actively pursuing new I partner. said, "That's interesting, And 73aS8cfS-216b-4aS6-8a06-0cc8aadac110 Case 0:08-cv-01010-RHK-JSM Document 139-11 Filed 08/05/09 Page 7 of 10 Page 53 1 2 3 because Trek has a partnership that goes for manager from a two more years with LeMond." I know the product 4 5 LeMond, and he was working on 2000 and I then '9 and '10 product line that I had some 6 7 information on, because Dealer Advisory Board. am part of their and 8 9 Having Aaron Mock's drawings seeing the fact that he is putting product a 2009 I 10 11 line together, I said, "That s kind a of odd that Mr. LeMond would be seeking 12 13 14 partnership outside of the Trek family." And they said, "No, no, we know this because part my mom knows Kathy LeMond," he 15 16 17 that he just got back and ways with Trek. Hmmm. is looking to Hearsay, innuendo, people 18 19 picking up the information off the Internet. Disregarded it, took it at face value, 20 21 whatever. Well, knew an awful When I it lot turns out those young more men 22 23 than I did. found out that they were 24 buying the bicycles through Mr. LeMond, 25 furthering the sort of fact that Mr. LeMond 73a58cf5-216b-4a56-8a06-0cc8aadac110 Case 0:08-cv-01010-RHK-JSM Document 139-11 Filed 08/05/09 Page 8 of 10 Page 54 1 2 3 probably was, ln fact, credence over in Taiwan lended some looking for another partner, to the fact that he would have no 4 5 value in the relationship around that I offered to the Trek/LeMond partnership, a i.e., selling or under the 6 7 retailer in a market, which is not acceptable under his contract 8 Taft-Hartley Act. You 9 can't sell directly to a 10 11 consumer behind your Q. I retailer's back. a am just going to What go back to the kids for 12 13 14 second. relationship did you ultimately find LeMond? out that they had to Kathy 15 16 17 18 19 A. I believe one of the young men's mothers were friends with Kathy LeMond, and that they had spoken mother Can you Q. -- Kathy had spoken to his that, help "My son me is looking a for a bike. 20 21 find deal?" know So before this, did you that friends able to get either. 22 23 24 25 and family of Greg and I LeMond were bikes? A. Q. No, don't believe they did, They -- 73aSBcfS.216b-4aS6.Ba06.0ccBaadac110 Case 0:08-cv-01010-RHK-JSM Document 139-11 Filed 08/05/09 Page 9 of 10 Page 66 1 2 need to happen, consumers? A. Q. are you talking about 3 4 That's right. What would describe what you are talking 5 6 7 about. A. Consumers would come in, we would present and a the best bike for the consumer, 8 oftentimes the rack, when we would pull "No, LeMond from I 9 they would say, won't ride 10 11 one of those. He has been, you know, he as been besmirching Lance Armstrong, 12 using his celebrity and Lance." So status to throw stones 13 14 there was a public push-back, 15 16 consumer Q. push-back, to the LeMond brand. Prior to the controversy with Mr. Armstrong began in 2001 17 18 publicly, there was an issue that arose in 2000 where it was announced 19 that LeMond accessories would be sold in 20 21 Target stores. Did you become aware of that, and 22 23 24 if A. I so, what was your reaction? did, and that was initially what promoted us to really evaluate the LeMond line in our 25 store. 73a58cf5-216b-4a56-8a06-0cc8aadac110 Case 0:08-cv-01010-RHK-JSM Document 139-11 Filed 08/05/09 Page 10 of 10 Page 67 1 2 It's retailer when very a difficult mass to sell a premier level product at an independent 3 4 5 large retailer is marketing the same brand. It really we marginalizes the quality of the products 6 7 sell. And so at that point when it was really 8 9 10 11 difficult for in a us to promote LeMond was bicycles and positive light it being promoted through Target Corporation, seeing the same brand at Target, and as an 12 13 14 independent bike dealer, it was very difficult. Q. As an avid cyclist, even known prior to purchasing of Greg LeMond? 15 Freewheel, you had A. Q. 16 17 18 19 20 21 Correct. Was he somebody that you held in very high I esteem? A. His accomplishments, I would say would place them at the top of the accomplishments for cyclists, list not of just I an 22 23 American cyclist, and a I would say did have very high regard for Mr. LeMond as an and as a a 24 25 athlete Q. human being. And as result of the regard with which you 73a58cf5-216b-4a56-8a06-0cc8aadac110

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