Aniplex, Incorporated v. Upper Deck Company

Filing 290

MINUTES OF PROCEEDINGS - Jury Trial (Day 11) held on 9/26/2011 before Judge Howard D. McKibben. Crtrm Administrator: Paris Rich; Pla Counsel: Michael Firestein and Joshua Pollack; Def Counsel: J. Stephen Peek, Robert Cassity and Craig Nicholas; Court Reporter: Kathryn French; Time of Hearing: 8:25 AM to 11:53 AM; 1:02 PM to 4:13 PM; Courtroom: 7C; See attached Minutes. Jury Trial (Day 12) set for Tuesday, 9/27/2011 at 8:00 AM in LV Courtroom 7C before Judge Howard D. McKibben. (Copies have been distributed pursuant to the NEF - PR)

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

ANIPLEX, INCORPORATED,
a Japanese corporation,
Plaintiff and
Counter-Defendant,
vs.
THE UPPER DECK COMPANY,
a Nevada corporation,
Defendant and
Counterclaimant.

PROCEEDINGS:

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2:08-cv-00442-HDM-PAL

MINUTES OF THE COURT

September 26, 2011

JURY TRIAL (DAY 11)

PRESENT:
THE HONORABLE HOWARD D. McKIBBEN, SENIOR U.S. DISTRICT JUDGE
Deputy Clerk: Paris Rich

Court Reporter: Kathryn French

Counsel for Plaintiff:

Michael Firestein and Joshua Pollack

Counsel for Defendant:

J. Stephen Peek, Robert Cassity and Craig
Nicholas

At 8:25 a.m., the Court convenes.
On behalf of Plaintiff, Michael Firestein and Joshua Pollack are present. Also present at
Plaintiff’s counsel table are Asa Suehira (Aniplex Representative) and Catherine Mirhady
(Electronic Technician).
On behalf of Defendant, J. Stephen Peek, Robert Cassity and Craig Nicholas are present.
Also present at Defendant’s counsel table are Brittany Hysni (Upper Deck
Representative), Dustin Kittleson (Electronic Technician) and Stephanie Morrill (Support
Assistant).
The Court distributes a revised set of jury instructions to counsel. The court and counsel
further confer regarding the revised instructions and verdict forms.

ANIPLEX v. THE UPPER DECK
September 26, 2011
2:08-cv-00442-HDM-PAL
Page 2 of 4
_______________________________________________________________________
Plaintiff’s Revised Exhibit E and Exhibit I to P-228 are remarked as Plaintiff’s
Exhibits P-322 and P-323 and received in evidence. IT IS SO ORDERED.
At 8:34 a.m., nine jurors enter the courtroom.
MARVIN GLEICHER, called on behalf of the Defendant, is sworn, examined on direct
by Mr. Peek and released subject to recall.
At 10:08 a.m., the jury is admonished, and the Court stands at recess.
At 10:35 a.m., the Court reconvenes with counsel and nine jurors present.
MARVIN GLEICHER, resumes the witness stand, is further examined on direct by Mr.
Peek and released subject to recall.
At 10:55 a.m., the jury is admonished and excused.
Outside the presence of the jury, the Court and counsel confer regarding the Defendant’s
previous objection to portions of Masaki Kaifu’s testimony, and the Plaintiff’s objections
this date to portions of Marvin Gleicher’s expert testimony. Counsel present further
argument.
IT IS ORDERED, no portion of Masaki Kaifu’s expert testimony shall be stricken.
All portions of Mr. Kaifu’s testimony shall be in evidence, including his analysis
with respect to cumulative impact. IT IS FURTHER ORDERED, the Plaintiff’s
objection this date to portions of Marvin Gleicher expert testimony is overruled.
IT IS SO ORDERED.
At 11:00 a.m., nine jurors enter the courtroom.
MARVIN GLEICHER, resumes the witness stand, is further examined on direct by Mr.
Peek and released subject to recall.
At 11:53 a.m., the jury is admonished and excused until 1:00 p.m. this date.
At 1:02 p.m., the Court reconvenes with nine jurors present.
MARVIN GLEICHER, resumes the witness stand, is cross-examined by Mr. Firestein
and released subject to recall.
At 2:20 p.m., the jury is admonished and excused.

ANIPLEX v. THE UPPER DECK
September 26, 2011
2:08-cv-00442-HDM-PAL
Page 3 of 4
_______________________________________________________________________
Outside the presence of the jury, the Court and counsel address the remaining Trial
schedule, jury instructions and proposed verdict forms.
At 2:35 p.m., the Court stands at recess.
At 2:48 p.m., the Court convenes with nine jurors present.
MARVIN GLEICHER, resumes the witness stand, is further cross-examined by Mr.
Firestein, examined on re-direct by Mr. Peek, re-cross-examined by Mr. Firestein and
excused.
Defendant’s Exhibit D-36 is received in evidence.
Plaintiff’s Exhibit P-294 is received in evidence.
The Defendant rests.
The Plaintiff, having no case in rebuttal, rests.
The Court addresses the continued Trial schedule with the jury.
At 3:34 p.m., the jury is admonished and excused until Tuesday, September 27, 2011 at
8:30 a.m.
Outside the presence of the jury, the Court and counsel address the proposed verdict
forms and jury instructions off of the record.
At 3:57 p.m., Mr. Firestein presents an original [289] Motion for Judgment as a Matter of
Law as to Defendant’s Claims and Affirmative Defenses Regarding Plaintiff’s Alleged
Lack of Rights to the Original Kiba Property.
The Court recites findings into the record regarding the Plaintiff’s [289] Motion.
Specifically, 1) the December 2003 Agreement allowing Dream Ranch to act on behalf of
other owners of Kiba rights; 2) Aniplex’s verbal agreement with Dream Ranch relative to
Kiba rights; 3) the January 31, 2006 revision of the December 2003 Agreement; and 4)
the May 2007 Licensing Agreement. IT IS ORDERED, Plaintiff’s [289] Motion is
GRANTED. The Court finds the transfer of Kiba copyrights valid as a matter of
law. IT IS SO ORDERED.
The Court recites findings into the record as to the fraud claim. IT IS ORDERED, the
Plaintiff’s motion for a directed verdict on the Defendant’s fraud claim is
GRANTED. IT IS SO ORDERED.

ANIPLEX v. THE UPPER DECK
September 26, 2011
2:08-cv-00442-HDM-PAL
Page 4 of 4
_______________________________________________________________________
Mr. Peek addresses issue of breach of fiduciary duty and, if necessary, moves to reopen or
amend under Rule 15. IT IS ORDERED, Motion to reopen or amend under Rule 15
is DENIED. IT IS SO ORDERED. IT IS FURTHER ORDERED, Motion for
instruction on fiduciary duty is DENIED. IT IS SO ORDERED.
IT IS ORDERED, Trial is continued to Tuesday, September 27, 2011 at 8:00 a.m. in
LV Courtroom 7C before Judge Howard D. McKibben.
At 4:13 p.m., the Court adjourns.
LANCE S. WILSON, CLERK

By: /s/ Paris Rich
Deputy Clerk