LeMond Cycling, Inc. v. Trek Bicycle Corporation

Filing 139

LeMond Cycling, Inc. v. Trek Bicycle Corporation

Doc. 139 Att. 6

Case 0:08-cv-01010-RHK-JSM Document 139-7

Filed 08/05/09 Page 1 of 14

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Case 0:08-cv-01010-RHK-JSM Document 139-7

Filed 08/05/09 Page 2 of 14

Page
UNITED STATES DISTRICT COURT

2

DISTRICT

OF MINNESOTA

)

LEMOND CYCLING,

INC.,

) ) )

Plaintiff,
vs.
TREK BICYCLE
CORPORATION,

) ) ) )
) )

Civil

No.
(RHK-JSM)

08-1010

Defendant/Third-Party

)

Plaintiff,
vs.
GREG LEMOND

)
) ) ) ) )

Third-Party Defendant.

) )

Deposition of

THOMAS

FOX,

taken on behalf

of Plaintiff
Defendant

LEMOND

CYCLING, INC.;

Third-Party

at 2049 Century Park East, Suite 3400, Los Angeles, California, beginning at 9:42 a.m., Tuesday, July 14, 2009, before Cila Meyer, No. 4914, a Certified
GREG LEMOND,

Shorthand Reporter.

Case 0:08-cv-01010-RHK-JSM Document 139-7

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Page 38
1

Q

On page

2

of your expert report,

in that

2

sentence again "with the action and statements" I'm

3

referring to.
A

4

Uh-huh.

5

Q

It
it

ends

with --

I'll

just read

it

again.

6
7

"After review of these materials,
is
my

opinion that Mr. LeMond's

8

actions and statements are at odds

9

with the very

essence

of what

a

10 11 12 13 14
A

company such as Trek should expect

from someone

with

whom

they have an

endorsement

relationship,

let

alone

a

licensing partnership."
Right.
What
I

15 16

Q
A

did

you mean by "licensing partnership"?
a

was making

distinction
as
you

between an

athlete
on
a

17 you sign to
18 the

sell the product
a

it

currently exists

shelf and

relationship

create to customize
name

19

line and sell
Q

it

with that person's

on

it.

20

Had anybody ever

told

you
a

that the relationship

21 between Mr.
22
A

LeMond and Trek was

licensing partnership?
that
I

Yes.

It

was

very clear in the documents

23 read. 24
Q
A

What documents?

25

There's

-- there are several

agreements between

Case 0:08-cv-01010-RHK-JSM Document 139-7

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Page 39
1

Trek and Mr. LeMond.

When

they started the LeMond
as
a

2

Cycling, that to

me

-- I'm referring to that
when

3

licensing agreement,
So
I

they started LeMond's Cycling.

4

looked at the documents
a

that related to Trek and
together.

5

Greg signing
I

contract to get in to business
I

6

reviewed that.

determined that to be

a

licensing

7

agreement.
Q

8 9

Okay.

You determined

that to be

a

licensing

partnership?
A

10

Licensing partnership,
Why

yes.
between

11

Q

is the fact that the relationship
a

12 LeMond

and Trek as

licensing partnership important to

13 your expert
14
A I

opinion?

think --

as

I

said,

I

make

a

distinction
to sell the

15 between 16 product

a

company that signs an athlete

that they're already making.

In that case

17 there's very
18

little
a

extra work that's being done.

They're taking

product that's already being

19 manufactured,

and

they're using that athlete's

name

and

20 likeness either in advertising or in promotion,
21 they're not changing

but

the bottle.

They're not changing

22 the formula.
23

There's really very

little that's

going

into

it

other than creating marketing materials.
When
I

24

look at

a

licensing partnership,

there

25 are branded products,

specific products

that are being

Case 0:08-cv-01010-RHK-JSM Document 139-7

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1

created.

To me
I

that's

a

much more

in-depth type of

2

relationship.
unwind, but
I

think it's

much more

difficult

to

3

just think it's -- there's

much more

4

collaboration about the products that are getting
produced.
So
I

5

think there's

a

much more

involved

6

process.
Q

7

If

you look on the spectrum

of relationships

8

between an

athlete

and

a

compctny, would an endorsement
a

9

relationship

be on one end and

licensing partnership

10 be on the other? 11 12
A

I'd
MR.

say
WEBER:

Let

me
I

-- just
just

a

second

-- object
sure

13 vague as to ends
14

of what?

want to make

we're clear as to what the label is
MR.

--

15 16
17

MADEL:

I

understand your
the label -I

MR. WEBER:
MR.

What

MADEL:

-- your objection is vague.

18 understand

that.
ahead and answer.
Can you

19
20

Go

THE DEPONENT:

define your spectrum,

21 though?
22 BY MR. 23 24
Q
A

MADEL:

You were just about
I

to answer.
I

Go

ahead.

want to make sure

understand what you mean.

25

Q

I'm trying to get

an idea of what

--

you

just

Case 0:08-cv-01010-RHK-JSM Document 139-7

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1
2

Q

Here you also say,

"and

tell

a

differentiating

story of superior performance" -A

3 4

Yes.

Q

-- "for their
of
a

products

because they bore the
who won

5

name

true innovator in the sport
;

at the

6

highest level"
A I

right?

7

see that, yes.
a

8 9

Q

You also consider Mr. LeMond

true innovator

in the sport of cycling?
A

10

That was his
when
I

-

-

that

was

his brand,

so to
He was

11 speak, 12 wearing

first

became

associated with him.
He was

the different

helmet.

designing

13

different handlebars.

His performance in the Tour de
you know,
a

14 France, 15

at least from,
a

laYman's perspective
was, he was

or, you know,

noncycling fan's perspective

16 winning because he was outthinking people
17 his technological
18
Q

and because

of

expertise, yes.
go
2

Let

me

to that sentence

again,

fourth full

19 paragraph

on page

that

we

talked about.

20 21

A

Uh-huh.
You say

Q

here, "it stands to reason that

22 consumers 23 right?
24
A

and dealers would be upset by

this activity";

Yes.
What empirical evidence

25

Q

did you rely on with

Case 0:08-cv-01010-RHK-JSM Document 139-7

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1

respect to that sentence?
A

2

"Empirical" meaning specific data?
Yes.

3
4

Q
A

I'm looking at -- I'm looking at sort of the
So

5 6

consumer response to his comments.

to the extent
and those

that those comments,

and those e-mai1s,

7

letters,
I

and

the public outcry is empirical,
Likewise,
and

that's what

8 9

was

using.

for the dealers,
same.

I'm looking at
I'm listening to
as
I

dealer

comments

thinking the
And

10 what

they're saying.

I'm putting myself --

11 said earlier,
12 saying
13

I'm putting myself in their shoes and
were them

"if
So

I

this is --

I

can certainly

understand why they would be feeling that."
Q

14

the evidence

that you

relied

upon with

15 respect

to that sentence,
on page
2

last full sentence, the fourth
would be the dealer comments

16

full

paragraph

17 provided to you by Trek and the consumer comments
18 provided

to you by Trek?

19

A

Certainly at least those.

And

I'm trying to

20 think

if --

then I'm looking at some of the ESPN things

21 as well, when you've got two columnists including
22 the Just Shut Up category,

it

in

I'm sort of using all of
my

23 those
24 yes.

that information to sort of flavor

opinion,

25

Q

Is there anything else?

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1
A

Because this is

really
as
a

a

dispute between what

2 3

Greg LeMond

did and said

paid endorser to Trek.
know, whether he's been
To me

I'm not here to talk about, you
on
a

4

life-long

crusade

against doping.
The issue

that's

5 6 7

sort of not the issue.

is his specific

attacks on another Trek endorser and whether that was
what they should have expected, given the partnership
and the relationship
Q

8
9

they had.
LeMond and

How

is that different between Greg

10 Charles

Barkley?

Insofar,

if it's

relevant to look at

11 what Charles 12 Barkley,

Barkley did before you signed Charles

why

isn't it

relevant

to look at what
LeMond?

13 Greg LeMond
14 15
A

did and said before you signed Greg

I'm sure Trek looked at everything.
No.

Q

I'm asking

you.

Why

didn't

you look

at

16
17

it?
A

Because

I've

been asked to look

at the dispute

18 between Trek and Greg LeMond.

To be

perfectly honest
LeMond

19 with you, to me this

isn't about Greg
with all
due

being

20 outspoken about doping,
21 about

respect.

It's
So
a

his accusations

against another Trek endorser.

22 to the
23 history

extent that --

if

he had

a

foundation or

long

of fighting and standing up against doping, that great.
a

24 would have been 25 my

It

would be the same

issue from

perspective as

marketer; that once he was signed by

Case 0:08-cv-01010-RHK-JSM Document 139-7

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1

Trek, he chose to attack another endorser
way

and do so

in

a

2
3

that diminishes his

own

credibility

and influences,

you know, people's perceptions of Trek.
Q

4

Is there

a

circumstance where Greg LeMond could
about Lance Armstrong

5

have said anything negative

while

6 7

signed with Trek?
A

Maybe.
Yeah.
I

I

don't

know.

Relative to doping?

8
9

Q
A

Or anything.
I

mean,
I

think --

I

think

it

was

reasonable
should

10

for Trek, as

said, to expect that

Greg LeMond

11 have stuck to facts when referring to things related to
12 Lance Armstrong.
13
I

think

it's

absolutely their
a

expectation

that because there's

relationship between
that Greg
would

14 both 15

of those athletes in the

company,
I

stick to the facts.

And, you know,

think
I

some

of the

16 things he was saying were not

factual.
you know.

think that's

17 why there was public outcry,
18 believed

Consumers

that because Lance

has been

tested many times
no

19 and has never

tested positive,

that there's

proof.

20
21 22 23 24 you

Q

So Lance Armstrong has

never tested positive

for performance-enhancing
A

drugs?

Not that
Okay.
me
I

I'm aware of.
asked you.
a

Q

I'll

ask you

again.

Can

provide

with

circumstance where Greg LeMond

25 could say something negative about Lance Armstrong and

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1
2

Q
A

And he's

a

role

model

to kids; right?
Kids that have

Kids interested in cycling?
People touched with cancer?

3

cancer?
Q

4

Yes.

I

mean, you said that he transcended the

5 6

sport; right?
A

Yes.
To the extent

7

Q

that he has cheated to get to
a

8

where he

is

would be relevant as

parent to you to not

9

have your child follow in those

sorts of footsteps;

10 right?

11
12

A

Yes.
a

If

Lance has cheated to get where he

is,

it

would be
Q

real issue.
that because
with Trek,

13
14 Mr.

But the same time you believe
a

LeMond had

business relationship

it

was

15 under

his obligation to shut up in that regard; right?

16
17

A

You've phrased that question in
way.
I

a

very
what

interesting

don't think, regardless of

18 Mr. LeMond believed
19

about Lance Ar.mstrong and his

possible doping,

I

don't believe

it

was

appropriate,
had

20 given the business

relationship that they

together,

21

for him to be calling him out in the press in that way.
I

22

think the first time

he

did

it,
is
I

he

retracted the
I

23 statement and sort
24 issue,

of agreed with

it.

guess the
a

fundamentally,

for

me

looked at this as

25 marketer in

this case is that

he kept on doing

it.

So

Case 0:08-cv-01010-RHK-JSM Document 139-7

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1 2 3
4

raising the issue, keeping
helping investigators
doping, even

it

out of the public eye,

to solve this problem
Lance Ar.mstrong,

called
behind the

if it
it,

involved
go

scenes, have at

at

it.
is creating an impression
a

5 6

Publicly --

marketing

in the

consumer's

mind

that you have

superior product

7

or you have something that they want to buy and then

8 9

getting

them to walk
a

in

and make

that purchase.
here.

We're

talking about

marketing relationship

I'm not

10

talking about sort of moral right and wrong, and the

11
12

overall issues with the sport, and the notion of
athlete taking
a

one

stand against doping.

I

think, you

13 know

--

I

think

if

more
a

athletes took

a

stand against

14 doping,

it

would be

great thing.
between

I'm talking about

15 the marketing relationship
16 Trek and Greg LeMond

this

company
and the

called

and Lance Ar.mstrong

fact

17 that he was
18 19

calling him out on things that were not
and the consumer

public knowledge,

and the dealers

clearly didn't want to continue to hear.

That's what

20 21

I've reacted to
Q

as

a

marketer.

It

would

have been

all

right for Mr. LeMond to

22 go to
23 Mr.

federal investigators with respect to

Armstrong?
A I

24

don't
mean,
I

know how anybody would have known

that;
the

25 right?

I

think,

if

he wants to go behind

Case 0:08-cv-01010-RHK-JSM Document 139-7

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1 2 3
4

scenes and say

"I

want to be

a

positive force behind,
Here is
I

you know, helping get drugs out of this sport.

information

I

have related to everyone,"

you know,

don't think anybody would have stopped him there.
think the fact that he's in public,

I

5

doing interviews,

6
7

talking about
Q

it

is

a

problem.

So

it's really

the publicity part of this that
Trek?

8

is the problem with respect to
A

9

We're talking about

a

marketing relationship,
the dealer,
and everyone
do and say

10 yes.

It's
It's

what the consumer,

11 sees.
12
13

the

ability for

Greg LeMond

to

things that helped the sales of his bike,

the

ability

for Lance Armstrong to
sale of Trek bikes,
and

do and

say things that helped the
do

14

their ability to

the exact

15 opposite. 16
Q

That's really where I'm focused here.

Did Mr. LeMond's statements regarding
harm his reputation?
comments

17 Floyd Landis
18
A

Did Mr. Armstrong's
No.
Mr.
LeMond's

about Floyd?
regarding

19

Q

statements

20 Floyd Landis harm his reputation?

21
22 So,

A

You know,
I

it's
So

funny.

Floyd tested positive.

you know,

think Floyd Landis' reputation is
did he -I

23 already

tainted.

don't

know whether he

24 said them

before or after.
proven,
and the

But once he's been found,
on

25 and

it's

public has sort of ruled

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1
A I

think

from what

I

can gather reading the

2

documents,

their dealers

were

incredibly upset.

And
When
a

3

their

business

is sort of driven by the dealers.
a

4

consumer walks in to buy

bike, unless you have support

5 6

of those dealers,

it's

very

difficult for

a

consumer

walking in who doesn't know what they want to get

7

steered towards that bike.

And

I

think, you
know,

know, Trek

8

is

a

company

that always had, you

great integrity,

9

great relationships

with their dealer was, you know,
to say these things and
I

10 allowing 11 12

Greg LeMond to continue

still

support him with product,
I

think

it

undermined

their credibility.
disenchanted.

think the dealers were

13

They clearly weren't pushing LeMond

14 products.

And Trek was making money on those products,

15 too. 16 17 18 19 20 Mr.
Q

Do you know how

-- if
I

Trek was damaged in

dollars in any amount?
A I

don't have

don't

know.

Q

Did you ever look at

any damage

that

LeMond's
A I

actions or statements caused Trek sales?

21

didn't look at specific sales data.

22

Q

But did you look at any

-- did

you

try to

23 measure in any numerical form any amount of damage that 24 Mr. LeMond caused Trek?
25
A

In

any numeric

-- no.

What

I

did

was looked

at

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1
2

the dealer comments, interpreted their lack of support

for that line
what
I

and understanding,
how those bikes

you know,

just based

on

3

read,

get sold, that that clearly

4

was not going
Q

to be

a

good thing

for their sale.

5 6 7

And your evidence of the dealer comments again

were the ones
Comments"?
A

that were the files

marked as "Dealer

8

Right.
Would you expect dealers

9

Q

of Trek bicycles,

that

10

disagreed with Trek's approach,
a

to send them -- send
"We

11 Trek

communication saying, you know,

really

12 support LeMond over you? 13
A

I

think from what
of independent

I

can gather, given the

14 importance

bike dealers to their

15 business, that they had an ongoing dialogue with those
16 people~
17 sales. 18 19

Those people were the
And

life

blood of their

that that ongoing dialogue would result in
They're

great feedback from those people.

their front

line.

Without
I

knowing exactly what's going on
has
a

in

a

bike

20 store,

don't think Trek

viable business,
So
I

21 regardless of the product
22 expect 23

they're producing.

would

that

if

a

dealer truly thought something was in

their best interest or not in their best interest, you'd

24 hear from them in both cases.

25

Q

Have you ever heard of any complaints from