Variety Stores, Inc. v. Wal-Mart Stores, Inc.

Filing 316

**VACATED pursuant to DE #369 ** ORDER granting #232 Motion in Limine and #252 Motion in Limine; denying #231 Motion in Limine, #233 Motion in Limine, #234 Motion in Limine, #238 Motion in Limine, #242 Motion in Limine, #247 Motion in Limine, #253 Motion in Limine, #255 Motion in Limine, #257 Motion in Limine, #261 Motion in Limine, #269 Sealed Motion in Limine and #270 Motion in Limine; granting #236 Motion to Seal Document, #240 Motion to Seal Document, #245 Motion to Seal Document, #250 Motion to Seal Document, #259 Motion to Seal Document, #265 Motion to Seal Document, #273 Motion to Seal, #305 Motion to Seal and #310 Motion to Seal Document; and denying #307 Motion to Redact #300 Transcript and #299 Transcript. Defendant is ordered to disgorge its profit in the amount of $32,521,671.40. Signed by District Judge Terrence W. Boyle on 11/21/2016. (Stouch, L.) Modified docket entry on 5/17/2018 (Stouch, L.).

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:14-CV-217-BO

VARIETY STORES, INC.,
Plaintiff,
V.

WAL-MART STORES, INC.,
Defendant.

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ORDER

This cause comes before the Court following an evidentiary hearing on an accounting
and disgorgement of defendant's profits. For the reasons discussed below, the Court finds that a
disgorgement of defendant's profits is merited in the amount of$32,521,671.40.
BACKGROUND
The Court incorporates by reference as if fully set forth herein the factual and procedural
background included in its order granting partial summary judgment. [DE 149].
On December 8, 2015, the Court granted Variety Stores, Inc.'s (hereinafter "Variety")
partial summary judgment in its favor on its claim for trademark infringement and unfair
competition under federal law and trademark infringement and unfair and deceptive practices
under state law. [DE 149]. In its order, the Court found that Variety owns a protectable interest in
the BACKYARD marks and that Wal-Mart Stores, Inc.'s (hereinafter Walmart) competing use
created a likelihood of confusion. Id.
Subsequently, Variety moved for a bench trial focused on an accounting and
disgorgement of profits which is an equitable remedy not necessitating a jury trial. [DE 157].

The Court granted this motion, [DE 211 ], and an evidentiary bench trial on these issues was held
on October 11 and 12, 2016.
DISCUSSION
In this action, Variety asserted claims against Walmart under the Lanham Act, 15 U.S.C.
§ 1114, 15 U.S.C. § 1125, North Carolina trademark law, N.C. Gen. Stat.§ 80-11, as well as at
common law, and the North Carolina Unfair and Deceptive Trade Practices Act, N.C Gen. Stat.
§ 75-1.1 et seq. Following its order on plaintiff's motion for partial summary judgment, in which

the Court found Walmart liable for trademark infringement, the Court is now tasked by the
Lanham Act under the current posture of the case to make an equitable determination of recovery
on behalf of the plaintiff.
The Lanham Act states in relevant part:
When a violation of any right of the registrant of a mark . . . shall have been
established ... the plaintiff shall be entitled ... subject to the principles of equity,
to recover (1) defendant's profits, (2) any damages sustained by the plaintiff, and
(3) the costs of the action. The court shall assess such profits and damages or
cause the same to be assessed under its direction ... If the court shall find that the
amount of the recovery based on profits is either inadequate or excessive the court
may in its discretion enter judgment for such sum as the court shall find to be just,
according to the circumstances of the case. Such sum . . . shall constitute
compensation and not a penalty.
15 U.S.C. § 1117(a). The Lanham Act grants the court discretion to increase or decrease the
amount of the recovery based on profits "as the court shall find to be just, according to the
circumstances of the case." Id. The Lanham Act also provides that a disgorgement of profits is
"subject to the principles of equity." Id.
In Synergistic Intern., LLC v. Korman, the Fourth Circuit set forth the following six
factors for a court to weigh equitably when determining whether monetary relief under the
Lanham Act, 15 U.S.C. § 1117(a), is appropriate, and if so, the amount thereof:

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(1) whether the defendant had the intent to confuse or deceive; (2) whether sales
have been diverted; (3) the adequacy of other remedies; (4) any unreasonable
delay by the plaintiff in asserting his rights, (5) the public interest in making the
misconduct unprofitable; and (6) and whether this is a case of palming off.
470 F.3d 162, 175-76 (4th Cir. 2006). A court may also consider other factors "that may be
relevant in the circumstances." Id. at 176. Under these factors, "actual confusion is not a
necessary prerequisite to an award of money damages" under the Lanham Act. Additionally, for
violations of the Lanham Act, "the court has broad discretion to award any monetary relief
necessary to serve the interests of justice." Shell Oil Co. v. Commercial Petroleum, Inc., 928
F.2d 104, 108 (4th Cir. 1991). Under this guidance, the Court must first determine whether,
under the Synergistic factors disgorgement of Walmart' s profits is merited, and then, if such
disgorgement is merited, the appropriate amount thereof. The Court will consider each in turn.
At the outset, this Court declines to certify George Mantis, Hal Poret, and Robert Puglisi
as expert witnesses because, having considered their testimony and the bases for their opinions,
the Court determines that their testimony did not meet the standard for certification as it did not
"assist the trier of fact to understand the evidence or determine a fact in issue .... " FRE Rule
702; Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-93 (1993) ("Faced with a proffer
of expert scientific testimony, then, the trial judge must determine at the outset, pursuant to Rule
104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist
the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment
of whether the reasoning or methodology underlying the testimony is scientifically valid and of
whether that reasoning or methodology properly can be applied to the facts in issue.").
Additionally, the Court grants little weight to the evidence Walmart offered to show lack
of actual confusion by consumers of Backyard grilling products because this evidence has
already been considered and rejected by the Court during the summary judgement phase and

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because actual confusion is not a necessary element under the Lanham Act or under the

Syngergistic factors set out by the Fourth Circuit for making an equitable disgorgement of
profits.

1) Whether disgorgement is merited.
The first Synergistic factor-whether the defendant had the intent to confuse or
deceive-"addresses whether there has been a willful infringement on the trademark rights of the
plaintiff, or whether the defendant has acted in bad faith." 470 F.3d at 175. Walmart presented
evidence at trial purporting to prove that its infringement was not willful or was based on entirely
innocuous reasons, for example that it intended only to distinguish its goods or to create product
packaging that touted product features. Walmart argues that none of its reasons for adopting the
mark concerned Variety, that it was only aware of Variety's federal registration of THE
BACKYARD for retail services and not goods, and that it had knowledge of numerous thirdparty uses of "Backyard" in the grilling product space. Walmart contends that each of these
reasons work to demonstrate that it was not a willful infringer or that it did not act in bad faith.
However, this is plainly contradicted by the Court's earlier finding as a matter of fact that
Walmart adopted the mark intentionally after its legal team made its brand team aware of
Variety's mark and twice warned the brand team not to use the Backyard mark. As this Court has
previously noted, "[i]t is difficult to imagine more compelling evidence of intent to confuse than
a knowing decision to use a similar mark to sell similar goods." [DE 149 at 11]. The Court also
notes that Walmart continued using the mark even after Variety disputed Walmart's registration
in front of the Trademark Trial and Appeal Board. This evidence compels the commonsense
inference that Walmart willfully infringed on the trademark rights of Variety, and thus this factor
weighs in favor of disgorgement of its profits.

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The second factor "involves the issue of whether the plaintiff lost sales as a result of the
defendant's trademark infringement activities, and the extent to which the plaintiff had entered
the market area where the infringement occurred." Synergistic, 470 F.3d at 175. It is undisputed
in this case that Walmart and Variety were direct competitors in the sales of grilling products and
that the sales area of each overlapped significantly across 16 states and the District of Columbia.
[DE 226]. While no evidence was presented to show directly that any single customer was
diverted from Variety to Walmart's grilling products, and while Walmart presented evidence of
third party uses of similar products bearing a similar "Backyard" mark, this evidence is
outweighed by the Court's previous finding as a matter of law that there was a risk of confusion
and by reason that Walmart's expansive use of the mark, totaling millions of dollars in sales,
undoubtedly saturated the market in which Variety operated and impacted Variety's market
presence. This factor also weighs in Variety's favor.
The third factor "addresses whether another remedy, such as an injunction, might more
appropriately correct any injury the plaintiff suffered from the defendant's infringement
activities." Synergistic, 470 F.3d at 176. "Ifan injunction is an adequate remedy, this factor
should weigh against a damages award." Id. The Court, in its discretion to award equitable
remedies, is obligated to consider such equitable factors as unjust enrichment and deterrence in
making an award determination. See Babbit Elecs., Inc. v. Dynascan Corp., 38 F.3d 1161, 1182
(11th Cir. 1994) ("Where the defendant's infringement is deliberate and willful, as in this case,
an accounting for profits is proper under a theory of unjust enrichment.") (citing Mattina Corp. v.
Cawy Bottling Co. Inc., 613 F.2d 582, 585 (5th Cir.1980)). As the Court previously noted in its
order granting partial summary judgment,
[b ]efore the Court is a case in which a larger company with deeper pockets for
litigation selected a product name with the same dominant word as a smaller

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company by which to sell the same and similar items as that smaller company.
The larger company knew of the smaller company's use-and trademark-when
it decided to use the name, but the larger company used it anyway. The items
were then sold in the same types of stores located in the same geographic areas
and frequented by the same types of customers.
[DE 149 at 14]. In this context, and considering the equitable factors above, the Court finds that
an injunction would not adequately compensate Variety for Walmart's infringement, and that
this factor favors disgorgement.
The fourth factor "addresses the temporal issue of whether the plaintiff waited too long,
after the infringement activities began, before seeking court relief." Synergistic, 470 F.3d at 176.
"A substantial delay between the commencement of infringement activities and the plaintiff
seeking judicial relief should weigh against an award of damages." Id. Walmart began using the
Backyard mark in October, 2011. 1 Walmart published its application for opposition in July,
2012. Variety filed an opposition to the application with the Trademark Trial and Appeal Board
("TT AB") that same month, and the parties forthwith engaged in discovery and litigation before
the Board. Variety filed this civil action on April 11, 2014 and the TT AB action was stayed. The
Court finds that Variety, as demonstrated by this history, promptly contested Walmart's use of
the mark and dutifully pursued the remedies available to it. As such, Variety did not wait too
long to begin seeking relief and this factor weighs in its favor.
The fifth factor-the public interest in making the misconduct unprofitable-"addresses
the balance that a court should strike between a plaintiffs right to be compensated for the
defendant's trademark infringement activities, and the statutory right of the defendant to not be
assessed a penalty." Synergistic, 470 F.3d at 176. Other courts have noted the need to "protect[]
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The Court finds as a fact that sales began in October, 2011. Walmart presented evidence
showing that October 8, 2011 was when sales of the Backyard product line began, and
sufficiently explained that the reason sales spreadsheets showed sales associated with Backyard
Universal Product Code ("UPC") numbers going back to January of 2011 is because those
numbers were recycled, as is its normal business practice.
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'smaller senior users ... against larger, more powerful companies who want to use identical or
confusingly similar trademarks.'" A & H Sportswear, Inc. v. Victoria's Secret Stores, Inc., 23 7
F.3d 198, 228 (3d Cir. 2000) (quoting Fisons Horticulture, Inc. v. Vigoro Industries, Inc., 30
F.3d 466, 475 (3d Cir. 1994)). The reason for this is to protect the public right to an accurate and
reliable selection of goods based on a trademark system that protects owners of proprietary
marks. The Lanham Act is meant to prevent consumer confusion and deter against practices that
intentionally saturate markets with confusingly similar products, which is precisely the situation
before this Court in this case. This factor also weighs in Variety's favor.
The sixth and final factor-whether the situation involves a case of "palming off'"involves the issue of whether the defendant used its infringement of the plaintiffs mark to sell
its products, misrepresenting to the public that the defendant's products were really those of the
plaintiff." Synergistic, 470 F.3d at 176. This classic definition of palming off is supplemented by
"reverse passing off," which is "the opposite: The producer misrepresents someone else's goods
or services as his own." Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 32 n.1
(2003). Both deceptive practices are remediable injuries under the Lanham Act. Belmora LLC v.

Bayer Consumer Care AG, 819 F.3d 697, 710 (4th Cir. 2016). While there is no evidence that
Walmart misrepresented to the public that its products were actually Variety's products, Walmart
did adopt a mark that was already in established and successful use by another, smaller company
and Walmart did pass it off as its own proprietary brand, capturing the value of that mark. Those
products were then "sold in the same types of stores located in the same geographic areas and
frequented by the same types of customers." [DE 149 at 14]. As such, this factor also weighs in
Variety's favor.

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Having weighed the six factors above, the Court finds that disgorgement of Walmart's
profits obtained from sales of its Backyard branded products is merited under the Lanham Act.

2) The amount ofprofits to be equitably disgorged.
Having found that disgorgement of Walmart's profits is merited, the Court now turns to
an accounting of those profits and to a determination, in its equitable discretion, of the proper
amount to be disgorged.
Under the Lanham Act, "[i]n assessing profits the plaintiff shall be required to prove
defendant's sales only; defendant must prove all elements of cost or deduction claimed." 15
U.S.C. § 1117(a). The parties agree the cost of goods sold should be properly deducted from
gross sales of infringing products, and have stipulated as to the gross amount of sales in each of
the relevant years. [DE 226].
Walmart first argues that no sales can be directly attributed to the infringing trademark,
and that therefore there are no profits for this Court to disgorge and award to Variety as a result
of its infringement of the Backyard mark. In favor of this position, Walmart presented evidence
such as data showing that sales of its Backyard products did not decrease when the brand name
was removed, consumer surveys showing that product brand names do not drive sales of the
products at the relevant price points, the fact that Walmart received no inquiries from consumers
or store personnel after the Backyard name was removed, and third party uses of the Backyard
name. The Court is not persuaded to accept Walmart's position.
First, the evidence Walmart presented lacked credibility or persuasive value because it
was based on the testimony of Mr. Rogers which the Court finds to be unreliable as to this issue
and which contradicted the Court's previous findings. Mr. Rogers stated, in one of his expert
reports submitted to this Court, that "the only reliable information presented in this matter

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regarding the 'value' ofWalmart's 'Backyard Grill'+ Design mark is Dr. Van Liere's study
which determined that the 'Backyard Grill'+ Design had no benefit when compared against a
control." [DE 172-3 at ~~47-59]. It was for this reason that Mr. Rogers concluded that no profits
can be attributed to the Backyard name. Id. at ~~130, 198. However, this Court has already held a
matter of law that Walmart's competing use of the BACKYARD mark created a likelihood of
confusion and that this mark was commercially strong, [DE 149], and in doing so this Court
rejected Dr. Van Liere' s previously presented study and any conclusion that the mark had no
value. For that reason, Mr. Rogers' testimony on this issue lacks credibility and does not
persuade the Court that the mark provided no value to Walmart.
Second, the existence of third party uses of the "Backyard" name does not, as Walmart
argues, demonstrate that the name did not contribute to Walmart's profits or that it had no
economic value. Most charitably, this fact has no bearing on the relationship of the name to
Walmart's profits; at the least it tends to show that there was broad market value in the name and
that it was likely recognizable by a wide customer base shopping for grilling products.
Many courts have also rejected the very same argument Walmart makes here. See

Hamilton-Brown Shoe Co. v. Wolf Bros. Shoe Co., 240 U.S. 251, 261 (1916) ("The difficulty lies
in ascertaining what proportion of the profit is due to the trademark, and what to the intrinsic
value of the commodity; and as this cannot be ascertained with any reasonable certainty, it is
more consonant with reason and justice that the owner of the trademark should have the whole
profit than that he should be deprived of any part of it by the fraudulent act of the defendant.");

WE. Bassett Co. v. Revlon, Inc., 435 F.2d 656, 664 (2d Cir. 1970) (where infringement is
willful, all the profits are awardable even though use of the infringing mark may not have
contributed causally to the sales or profits); Truck Equip. Serv. Co. v. Fruehauf Corp., 536 F.2d

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1210, 1222 (8th Cir. 1976) (concluding the district court abused its discretion in relying on a
consumer motivation study to apportion profits).
Finally, Walmart failed to address the most basic question generated by their position: if
the brand name "Backyard" really had no value and no relation to sales, then why did Walmart
choose to use this name in the first place, and why did they decide to stick with their choice over
repeated warnings from their legal counsel? This very decision belies the position it is trying to
take now that the mark had no value. Walmart offered a variety of alternative explanations for
the reason this particular name was chosen, such as that it was chosen in order to provide more
flexibility in sourcing, to provide a better shopping experience for customers, or to provide a
streamlined and consistent appearance in the store. The Court is hard-pressed to understand how
these aspects of the brand are inherently different than any other aspect of a brand name which
would provide value and increase sales, or why these reasons for the adoption of an infringing
trademark should not be compensable under the Lanham Act while other reasons would be. But
regardless of the reason why, the fact is that Walmart adopted the mark with knowledge of
Variety's use and registration of the mark and has therefore, as this Court has already
determined, infringed upon Variety's vested property rights in the trademark. The trademark
laws provide protection against such infringement, and an award of an infringer's profits is
aimed at deterring such future violations as well as compensating the trademark holder. It would
be inequitable and would frustrate these aims to allow for an award of only that profit that a
plaintiff could sufficiently prove was directly a result of a trademark infringement. Such a task
would be exceedingly difficult, if not impossible, and the Court rejects such a parsing of dollars
and cents in this case.

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For these reasons, the Court finds that Walmart did not demonstrate that all of Walmart's
profits from the sales of products bearing the infringing mark are attributable to factors other
than the trademark. The argument that the Backyard name provided no value to Walmart or
contributed not a single dollar to its sales does not stand to reason, and the Court declines to
reduce the award to Variety to $0.00.
Turning to the actual amount of profits to be disgorged, the Court first notes that it has
previously ruled that Walmart and Variety are direct competitors and that the product lines
bearing the infringing marks are competing products. [DE 149 at 9]. Although Walmart argues
again that the product lines are not perfectly synonymous, the Court is guided by the reasoning
of others courts which have frequently found, in finding and awarding profits for trademark
infringement, that competing products do not need to be perfectly synonymous or the infringing
mark employed in exactly the same manner. See Mishawaka Rubber & Woolen Mfg Co. v. S.S.

Kresge Co., 316 U.S. 203, 207 (1942) ("And one who makes profits derived from the unlawful
appropriation of a mark belonging to another cannot relieve himself of his obligation to restore
the profits to their rightful owner merely by showing that the latter did not choose to use the
mark in the particular manner employed by the wrongdoer."); see also Maier Brewing Co. v.

Fleischmann Distilling Corp., 390 F .2d 117, 123 (9th Cir. 1968) (awarding profits in a case
between a seller of whiskey and seller of beer). Under this guidance the Court will disgorge
profits from all of Walmart' s products bearing the infringing mark.
Second, the Court must consider the geographic scope of competition between Variety
and Walmart. The Lanham Act provides for nationwide protection of trademarks. However, as
the Fourth Circuit has lain out, "[t]he fact that a plaintiff had not entered the relevant
marketplace when the infringement was ongoing, in combination with the fact that no sales were

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diverted, should weigh against an award being made." Synergistic, 470 F.3d at 175-76. The
Fourth Circuit has also interpreted the Lanham Act to provide injunctive relief only if the
trademark holder is likely to enter, or has entered, the infringing user's trade territory. Lone Star
Steakhouse & Salool v. Alpha of Virginia, 43 F.3d 922, 931-932 (4th Cir. 1995). Under this
guidance, the Court is persuaded that the actual geographic area of competition should be
weighed under its equitable determination and will not disgorge Walmart's profits from states
within which Variety did not operate. However, the Court does not find it equitable to
categorically limit the award to Variety to only to those profits derived from Walmart stores
located within 25 miles of a competing Variety store. The evidence Walmart offered in support
of this position did not persuade the Court, and it would be unjust to limit the award to such a
narrow area without a clearer showing that no competition between Variety and Walmart
occurred outside of a 25 mile radius of any Walmart store. Therefore, the Court will disgorge the
profit earned by Walmart from its sales of Backyard products in the states where it competed
with Variety, which totaled $395,316,314.71. Def. Ex. 151.
The Court finds that Walmart met its burden to show that certain selling, general, and
administrative ("SG&A") as well as shipping costs that can be attributed to the infringing
products should be deducted by the Court in calculating its profits. While generally courts will
allow for a deduction of only marginal costs when determining the profit to be disgorged, there is
no hard and fast rule for determining which items of cost are to be deducted, and in each case the
trial court must determine what would be a just calculation. But although there is no set rule, the
Court is guided by the holdings of other circuits which have allowed fixed costs to be deducted
upon a proper showing of the nexus between such costs and the sales of the infringing goods. 2
2

See, e.g., Hamil Am. Inc. v. GFI, 193 F.3d 92, 107 (2d Cir. 1999) ("Every infringer shoulders
the burden of demonstrating a sufficient nexus between each expense claimed and the sales of
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Having considered Walmart's regression analysis and the reasons afforded for attributing these
costs to sales of Backyard products, the Court finds that in this case Walmart established that
these costs were of actual assistance in the production, distribution and sale of the infringing
Backyard products. The Court also notes that considerations of equity require this Court to
ensure, through deduction of sufficient costs, that it does not order an award of Walmart's gross
revenues from sales of Backyard grilling products. Such an award would be a windfall, and
would constitute a penalty upon Walmart rather than the compensation that Variety is entitled to
in this case. In exercising its wide scope of discretion, the Court finds that Walmart has
demonstrated that such SG&A and shipping costs have a sufficient nexus with sales of the
infringing goods and that such a deduction would be just according to the circumstances of this
case. Totaling cost of goods sold, shipping, and attributed SG&A costs, leads to a total of
$362,794,643.31 to be deducted in determining Walmart's profit. Def. Ex. 151.
Walmart also requested a deduction for taxes, but the Court finds that, as a knowing and
willful infringer of Variety's mark, Walmart is not entitled such a cost deduction. See, e.g., L.P.
Larson, Jr., Co. v. Wm. Wrigley, Jr., Co., 277 U.S. 97 (1928) (holding income tax paid on profits
is not deductible where infringement was conscious and deliberate); Carter Products, Inc. v.
Colgate-Palmolive Co., 214 F.Supp. 383 (D. Md. 1963) ("The authorities have established the
rule that no deduction should be allowed for income taxes paid by a defendant where his
infringement was conscious and deliberate, or in bad faith, though a deduction might be allowed
to an innocent infringer.").

the unlawful goods before it may deduct any overhead expenses from its profits. When
infringement is found to be willful, the district court should give extra scrutiny to the categories
of overhead expenses claimed by the infringer to insure that each category is directly and validly
connected to the sale and production of the infringing product. Unless a strong nexus is
established, the court should not permit a deduction for the overhead category.") (internal
citations removed).
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In sum, finding that Walmart' s sales of infringing products during the relevant time
period in the states where Variety and Walmart both operated totaled $395,316,314.71, and
finding that Walmart has proven appropriate costs to be deducted in the amount of
$362,794,643.31, leads to a profit figure of $32,521,671.40. At this point it is appropriate for the
Court to consider any such equitable factors that might compel an increase or a reduction in the
award from the gross profit figure derived above. As stated before, this is a case of a willful and
knowing violation by a larger corporation of a smaller company's established and registered
trademark. This was a deliberate choice by Walmart, and was done over repeated warnings from
its own legal counsel. The items were then sold in the same types of stores located in the same
geographic areas and frequented by the same types of customers. The Lanham Act is meant to
prevent consumer confusion and deter against practices that intentionally saturate markets with
confusingly similar products, which is precisely the situation before this Court in this case.
Considerations of deterrence and unjust enrichment therefore weigh heavily in this case. The
Court must take care, however, to ensure that the award does not amount to a windfall to Variety,
but constitutes only the compensation due to it under the equitable powers of this Court.
Considering then Variety's total of sales of its own BACKYARD grilling products 3 and the
actual scope and area of competition between Variety and Walmart leads the Court to determine,
in its equitable discretion, that the profit figure derived above is a just award to the plaintiff in
these circumstances.

3

Since 2002 Variety has sold around $8,000,000 worth of grill and grill accessory products
under the BACKYARD mark. [DE 44-1 O].
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CONCLUSION
For the foregoing reasons, defendant is ordered to disgorge its profit in the amount of
$32,521,671.40. Motions in limine [DE 232, 252] are GRANTED and motions in limine [DE
231, 233, 234, 238, 242, 247, 253, 255, 257, 261, 269, 270] are DENIED. Also, for good cause
shown, motions to SEAL [DE 236, 240, 245, 250, 259, 265, 273, 305, 310] are GRANTED.
Motion to REDACT the trial transcript [DE 307] is DENIED.

SO ORDERED, this~ day of November, 2016.

ERRENCE W. BOYLE
UNITED STATES DISTRICT J

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