LeMond Cycling, Inc. v. Trek Bicycle Corporation

Filing 139

Attachment 5
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. 5 Case 0:08-cv-01010-RHK-JSM Document 139-6 Filed 08/05/09 Page 1 of 9 ZASTROW EXHIBIT 49 Dockets.Justia.com Case 0:08-cv-01010-RHK-JSM Document 139-6 Filed 08/05/09 Page 2 of 9 Page 1 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA LeMOND CYCLING, INC., Plaintiff, vs. TREK BICYCLE Case No. 08-1010 CORPORATION, Defendant/Third-Party Plaintiff, vs. GREG LeMOND, Third-Party Defendant. video Deposition of MALCOLM DAVIES Thursday, May 14th, 9:07 a.m. 2009 at GASS WEBER MULLINS LLC 309 North Water Street Wisconsin Milwaukee, Reported by Kealoha A. Schupp, RPR 3b7 cebfO-98ge-44a5-95b8-a32fc737 43a6 Case 0:08-cv-01010-RHK-JSM Document 139-6 Filed 08/05/09 Page 3 of 9 Page 68 1 2 3 4 5 6 7 BY MR. Q I this document, what MS. we see here? RAHNE~bjection, asked and answered. same think he responded do to my question the way, but you're happy to you do it again -- or I'm welcome to have it again. THE WITNESS Okay. WEBER: a 8 9 Yeah, so she's making comment for the judge's benefit later on. For purp -- our purposes A 10 11 -in Exhibit Okay. 12 13 Q -- explain to 195. Okay. So the jury what we see here 14 15 16 17 18 A this is an my e-mail that I -- I received an e-mail from one of Schmiedel, direct reports, Harald an in early October 2007 relating to published interview that Greg LeMond gave to Tour magazine. The interview was early in September 2007. part is an 19 And the second me e-mail from 20 21 forwarding Harold's e-mail but also commenting from myself to John Burke. It was to me, I think. to John I 22 23 24 25 I'm sorry. October 9th, I've I got to read the dates again. The same day. comment I I made obviously where said that thought, whilst had great respect for Greg and his achievements in the 3b 7 cebfO-98ge-44a5-95b8-a32fc737 43a6 Case 0:08-cv-01010-RHK-JSM Document 139-6 Filed 08/05/09 Page 4 of 9 Page 69 I 1 2 3 sport, when I would say that Greg was one of a my heroes was young guy in the cycle cycling business. I followed his tour wins in the -- in the Whilst I 4 5 6 7 late '80s very closely. had respect for what he had achieved there, I thought commercially he was an in Tour magazine, was idiot, because his comments his 8 9 response to that damaging particular question and very to his reputation Trek's reputation, 10 11 mostly because you have to understand at this time of 12 13 year what -- what we're trying to do. very focused period in the year It's a from the late part through of August, very end of August, we 14 15 16 till the middle of October where are trying to sell season. our product in for the following We're trying to get the dealers to buy the the brand and the 17 bikes basically and commit to selling commit to 18 19 selling the line of bicycles for year right through until the following summer of 2008 20 21 would be the case here. So we had spent show, considerable efforts We 22 preparing for a big trade Euro-Bike. had 23 24 spent considerable efforts preparing for bikes on show, house shows, getting the LeMond making sure we had 25 the required marketing materials to support the sale, 3b 7 cebfO-98ge-44a5-95b8-a32fc737 43a6 Case 0:08-cv-01010-RHK-JSM Document 139-6 Filed 08/05/09 Page 5 of 9 Page 70 1 2 training our salespeople were on the technology that We we offering. on We did all these things. and put it a 3 4 all -- in front of the dealers, comes then this article between out in Tour magazine with Greg making 5 6 7 statement that basically undermines the relationship Trek and LeMond. And from our perspective, we saw that 8 9 as very damaging, because what happens in that situation is the dealers get this feeling of They 10 11 uncertainty. dealers. They -- they don't like uncertainty, be like things to They are They very simple and people. 12 13 14 straightforward. They buy bikes. straightforward sell bikes. They get behind something the brand. on They don't want to have know going 15 16 that they don't what's going to come down the road six months from now. And my 17 18 19 salespeople were very about frustrated that they spent time talking issue was this instead of selling the bikes. Harald Schmiedel 20 21 extremely frustrated having spent, you know, days LeMond in front of dealers selling Trek bikes, Fischer bikes bikes, 22 to have part of his time, which is a 23 24 fairly short with each dealer, highjacked by conversation about what Greg had said in Tour magazine. And from my 25 perspective, it was very 3b 7 cebfO-98ge-44a5-95b8-a32fc73743a6 Case 0:08-cv-01010-RHK-JSM Document 139-6 Filed 08/05/09 Page 6 of 9 Page 71 1 2 damaging. John, And I that's was why I I sent the -- the note to because -my was, you know, expressing 3 4 Q the frustration of organization. overlap between the two? Is there No some connection between Tour magazine and some 5 Euro-Bike? A Is there 6 7 connection other than the fact that this particular issue is the issue that is published coincide with the drops So to 8 9 show. The show runs four days. It on the doormat the day the show opens. 10 11 one that Tour out that's -- that's the -- it's the magazine would be at the show selling 12 or giving -- you have people so reading it having 13 just received But no Q it, that's the connection really. connection. a 14 15 16 17 18 A -- no commercial All right. attendees Yes. And describe But it is -- do I understand it to be then an edition that's geared specifically for at Euro-Bike? 19 Q for the jury How a little bit about there? How does 20 21 Euro-Bike. does it work? Is Trek the only company there? Are your competitors 22 23 24 25 A it happen? Euro-Bike is probably now the largest show in the world for bicycle products, high-end sport part of major companies the market. So all of the would be 3b 7 cebfO-98ge-44a5-95b8-a32fc737 43a6 Case 0:08-cv-01010-RHK-JSM Document 139-6 Filed 08/05/09 Page 7 of 9 Page 72 1 2 3 at that show. I can't even begin to tell are there. you how many companies there But every major manufacturer would be show. We 4 5 6 7 8 introducing their were one off oh[ I 2008 product line at this I don't know[ guess at least 100 companies selling high-end road bikes in that business. Typically dealers which come to our booth[ 9 is about a 600 square meters of product. It's 10 11 quite big space[ but typically they would come and spend anything were -- depending on how committed they brands[ 30 12 13 14 15 to the -- the Trek family of 90 minutes 30 a minutes to on our booth. So we have very limited timet or our salespeople limited time to get the job done. They have a very 16 17 -- you know[ they're talking both Trek[ both program[ a about a huge range of products[ 18 LeMond[ Fischer[ Diamante[ our after-market 19 business in general. They an issue really don't have comes lot of 20 21 timet and as if -- if 15 that is really irrelevant goes[ up and far as selling the stuff and 22 23 highjacks 10[ minutes of their timet then they get pretty frustrated[ actions. damages And that comes out in their and 24 it reflects in our business[ it 25 our opportunity to sell the product. 3b 7cebfO-98ge-44a5-95b8-a32fc737 43a6 Case 0:08-cv-01010-RHK-JSM Document 139-6 Filed 08/05/09 Page 8 of 9 Page 73 1 Q Okay. Now, a you mentioned that this is -- did Tour? you say 2 3 A it's It is German language magazine, German language magazine, yes. events in Germany 4 5 6 7 Q Did you have follow-up house after we Euro-Bike? A Yeah. We would have house a shows in Germany where would get to spend bit more time with each dealer 8 9 and we would be able to focus specifically on their is -- order. I'm -present new So our -- our goal at the house Our goal at the Euro-Bike shows 10 11 let's back up. show is to 12 13 14 15 the product and get the dealer excited about Our goal at a stuff. house show is to So specifically 15 get, a I need three of those bikes in size inch in blue, detailed order. 16 17 18 19 the difference between the two. spend a that -- that's The dealer would lot more time with us at the house show. -- that house show conversation experience gets further highjacked by But again, if that a 20 21 about Greg's comments Now, in Tour magazine, then that's you wasted time. Q if -that, in fact, in these 22 And is it your understanding 23 German house shows thereafter that the issues that part of the 24 25 were raised in Tour magazine did highjack conversations? 3b 7 cebfO-98ge-44a5-95b8-a32fc737 43a6 Case 0:08-cv-01010-RHK-JSM Document 139-6 Filed 08/05/09 Page 9 of 9 Page 74 I 1 2 A It definitely in October, Euro-Bike continued. mean, you see the timing I think is important here, because this the message came 3 4 5 which is sometime show. after the It would have been during the German and we dealer of the impact house shows, it were would have been the result see the 6 7 8 9 you know, starting to of dealers not buying LeMond bikes or not up again I wanting to sign And, you know, for the LeMond line in 2008. 10 11 think it's -- it's clear that from the timing of the message that it prevailed for more than just a couple hours. Were you aware 12 13 Q All right. at that time that from time to time in years past Mr. LeMond had raised the 14 15 idea of, gee, I'd like to see more LeMond-branded bikes sold in Europe? A 16 17 Yes. And was Q this Euro-Bike effort an and the house show 18 19 efforts A effort I you and your team were making to bring about that resolve? 20 21 Definitely. starts here. mean this is the start -a I think I said earlier in answer t~ You have question before that it do 22 to get the dealers on board and 23 24 25 with the brand, with the product, if you don't that, you will -- you can do no -- no an endless amount of consumer marketing subsequentlYi if you 3b 7 cebfO-98ge-44a5-95b8-a32fc737 43a6

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