WWP v. Wounded Warriors

Filing 511

MEMORANDUM AND ORDER - Defendant's motion for entry of partial satisfaction of judgment (Filing No. 489 ) is granted. Defendant has partially satisfied the judgment entered against it in this case in the total amount of $898,241.73. Plaintiffs motion to amend caption (Filing No. 497 ) is granted. The caption in this case is amended to reflect plaintiffs name change to Wounded Warrior Project, Inc. Ordered by Senior Judge Lyle E. Strom. (GJG)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
WWP, INC.,

)
)
Plaintiff,
)
)
v.
)
)
WOUNDED WARRIORS FAMILY
)
SUPPORT, INC.,
)
)
Defendant.
)
______________________________)

8:07CV370

MEMORANDUM AND ORDER

This matter is before the Court upon defendant’s motion
for entry of partial satisfaction of judgment (Filing No. 489)
and plaintiff’s motion to amend caption (Filing No. 497).

The

Court held oral argument on these matters on December 20, 2011.
Upon considering the oral arguments submitted by both parties and
reviewing the briefs, evidence, and relevant law, the Court will
grant defendant’s motion for entry of partial satisfaction of
judgment and grant plaintiff’s motion to amend caption.
I. Defendant’s motion for entry of partial satisfaction
of judgment
On or about October 22, 2009, this Court entered its
Order and Judgment upon the jury’s verdict in favor of plaintiff
and against defendant in the total amount of $1,692,719.00.
Filing No. 332.

See

Shortly thereafter, the Court entered an Order

and Amended Judgment dated January 28, 2010, including in its
original Order and Judgment an injunction prohibiting defendant
“from using the http://www.woundedwarriors.org/ website” and from

“placing any content on [such] website and from redirecting,
linking, or otherwise transferring visitors to [such] website to
any other website.”

See Filing No. 351.

This Court’s Order and

Amended Judgment was affirmed by the Eighth Circuit Court of
Appeals on January 12, 2011.

See Filing No. 476.

A dispute has arisen between the parties with respect
to the amount of credit defendant should be given against the
judgment entered against it.

Defendant’s motion for entry of

partial satisfaction of judgment seeks an order issued by this
Court acknowledging defendant’s partial satisfaction of the
judgment entered against it in the total amount of $898,241.73.
See Filing No. 489.
Plaintiff agrees that defendant is entitled to partial
satisfaction of the judgment entered against it in the amount of
498,241.73.

Plaintiff disputes, however, that defendant is

entitled to partial satisfaction of the judgment entered against
it in the amount of $400,000, representing a wire transfer made
by defendant’s counsel and on defendant’s behalf to plaintiff on
or about June 20 and 21, 2011.

See Filing Nos. 495 and 499.

The following e-mail conversation took place between
counsel for defendant and counsel for plaintiff regarding this
wire transfer:
On June 15, 2011 at 6:32 PM, defendant’s counsel sent
the following e-mail to plaintiff’s counsel:

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In response to my request for
settlement discussion to begin, you
advised that [defendant] needed to
show a voluntary payment in the
amount of $600,000 based on that
amount being referenced by Wounded
Warriors Family Support Initiative
[WWFSI] with regard to a [sic]
event it was running for the
benefit of [defendant]. I told you
WWFSI was independent of
[defendant] but I have been
informed that it is in fact running
an event that will benefit
[defendant]. You asked that
[defendant] commit the expected
proceeds from the event for the
benefit of [plaintiff] and
[defendant] is prepared to do that.
Please advise if [plaintiff] is
willing to accept same as a showing
of “good will” and if so how
[plaintiff] wishes to receive
payment.
See Filing No. 496-10.
On June 16, 2011, at 4:36 PM, plaintiff’s counsel sent
the

following response to defendant’s counsel:
I’m unclear on your e-mail
below and exactly what [defendant]
is offering to settle with
[plaintiff] . . . . [I]t is our
position that any funds raised
tonight are the result of further
deceptive trade practices by Mr.
Folsom and [defendant] and that
such funds constitute additional
damages that have been incurred by
[plaintiff] . . . .
[It] would be our position
that any settlement with
[plaintiff] would need to include
provisions requiring [defendant]
and WWFSI to change their names and
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for Mr. Folsom to permanently cease
any direct or indirect fundraising
activities under any derivation of
the name Wounded Warriors. We
consider this to be the only way to
avoid ongoing confusion that is
being caused by these intentional
efforts to trade upon the goodwill
of [plaintiff].
Regarding tonight’s event, it
appears [defendant]/WWFSI has
raised, at a minimum $600,000 that
properly belongs to [plaintiff].
[Plaintiff] expects to receive
$600,000 as a credit due on the
outstanding judgment by 5:00 pm EST
June 20, 2011. Wiring instructions
below. If [defendant] is serious
about discussing settlement, please
send me the material terms of such
settlement and supporting financial
documents evidencing [defendant]’s
ability to meet the terms of such
payment.
See Filing No. 496-11 (emphasis added).
On June 20, 2011 at 1:03 PM, defendant’s counsel sent
the

following response to plaintiff’s counsel: “I can forward to

[plaintiff] today $400,000 of the net proceeds of the Intrepid
fundraiser and will forward the balance to [plaintiff] upon
receipt . . . .

Please advise as to how [plaintiff] wishes to

receive said funds.”

See Filing No. 491-1.

On June 21, 2011, at 10:38 AM, plaintiff’s counsel sent
the following e-mail to defendant’s counsel in response:
“[Plaintiff] can receive a wire payment via the information
below.”

See id.

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The same day at 10:46 AM, defendant’s counsel sent the
following e-mail to plaintiff’s counsel: “[T]he $400,000 payment
will be on it's way shortly.”

See id.

Upon reviewing the preceding e-mail correspondence, the
Court concludes the parties made a deal.

Counsel for plaintiff

indicated funds received from the WWFSI/Intrepid fundraiser event
would be considered “a credit due on the outstanding judgment.”
See Filing No. 496-11 (emphasis added).

Counsel for plaintiff

accepted defendant’s partial payment of such funds without
dispute or any indication that it had retracted its prior
statement that the funds would be considered “a credit due on the
outstanding judgment.”

See id. (emphasis added).

Thus, the

Court will grant defendant’s motion for entry of partial
satisfaction of judgment in the amount of $898,241.73.
II. Motion to amend caption
On September 15, 2009, plaintiff amended its articles
of incorporation to change its name from WWP, Inc. to Wounded
Warrior Project, Inc.

Pursuant to the Court’s authority under

Federal Rule of Civil Procedure 60(a), the Court will correct
this mistake as it arises from oversight and amend the caption in
this case to reflect plaintiff’s name change to Wounded Warrior
Project, Inc.

Accordingly,

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IT IS ORDERED:
1)

Defendant’s motion for entry of partial

satisfaction of judgment (Filing No. 489) is granted.
2)

Defendant has partially satisfied the judgment

entered against it in this case in the total amount of
$898,241.73.
3)

Plaintiff’s motion to amend caption (Filing No.

497) is granted.
4)

The caption in this case is amended to reflect

plaintiff’s name change to Wounded Warrior Project, Inc.
DATED this 29th day of December, 2011.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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