Derrick Petroleum Services v. PLS, Inc.

Filing 397

JURY INSTRUCTIONS entered. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
DERRICK PETROLEUM SERVICES,
Plaintiff,
v.
PLS, INC.,
Defendant.

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December 15, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. H-14-1520

JURY INSTRUCTIONS
MEMBERS OF THE JURY:
You have now heard all of the evidence in this lawsuit between Derrick
Petroleum Services and PLS, Inc. I will now instruct you on the law you are to
apply in this case. The law contained in these instructions is the only law you
may follow. It is your duty to follow what I instruct you the law is, regardless
of any opinion that you might have as to what the law ought to be.
I will first give you general instructions that apply in many cases, including
this one. Then I will give you more specific instructions that apply to this case in
particular. Finally, I will give you instructions about deliberating to a verdict.
General Instructions
Consider these instructions as a whole and in context. Do not consider any
instruction to be more important than others, and do not take any instruction out of
context.

Your duty as jurors is to follow the law that I give you in these
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instructions. You, the jurors, are the sole finders of fact. But in finding those
facts, you must apply the law as I give it to you in these instructions, regardless of
any opinion you may have as to what the law ought to be. If I have given you the
impression during the trial that I favor either party, or that I have an opinion about
the facts of this case, you must disregard that impression.
All parties are equals before the law and must be treated as equals before the
law in a court of justice. The size or locations of the companies or the fact that one
is based overseas is irrelevant. Your duty is to make fair and impartial decisions
based only on the evidence and law presented to you here. Our system does not
permit jurors to be influenced by bias, prejudice, sympathy, or public opinion.
Both the parties and the public expect that you will carefully and impartially
consider all of the evidence in the case, follow the law as it is given to you, and
reach a just verdict, regardless of the consequences.
The verdict form, which I will explain in detail later, tells you to answer
questions about the factual disputes in the case. Base your answers on the facts as
you find them. Do not first decide who you think should win and then answer
questions accordingly.
The evidence for you to consider consists of the witnesses’ testimony and
the exhibits that I have admitted into evidence.

You may also consider fair

inferences you choose to draw from the facts you find to be proven. Lawyer
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statements and arguments are not evidence and are not instructions on the law.
Although what the lawyers say is not evidence, you may consider their statements
and arguments in light of the evidence and determine whether it supports the
arguments. Juror notes taken during a trial are not evidence. They are only aids to
a juror’s memory of the evidence. If you took notes and your memory of the
evidence differs from your notes, rely on your memory and not the notes. If you
did not take notes, rely on your own independent memory of the evidence and do
not be unduly influenced by any other juror’s notes.
Your fact findings and your answers to the questions you are asked must be
based on a preponderance of the evidence. This means the greater weight and
degree of credible evidence before you. To establish a fact by a preponderance of
the evidence means to prove that fact is more likely true than not true.

In

determining whether a fact has been proven by a preponderance of the evidence,
you may consider all of the evidence, regardless of which party brought it to you.
Derrick has the burden of proving some of the claims by a preponderance of the
evidence, and PLS has that burden as to other claims. Pay close attention to the
instructions and questions on which party has the burden on which claim.
Facts may be proven by direct evidence, such as testimony of an eyewitness.
Facts may also be proven by indirect or circumstantial evidence, which is evidence
that proves a fact from which you can logically conclude that another fact exists.
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Consider both direct and circumstantial evidence in finding the facts and arriving
at your answers from all the evidence.
Witness credibility or truthfulness is for you to decide. In determining
credibility, you may consider a wide range of factors, including each witness’s
demeanor, the consistency or inconsistency of the witness’s answers to questions,
and the witness’s feelings, prejudices, or biases. In determining the weight to give
to a witness’s testimony, consider whether there was evidence that at some other
time the witness said or did something, or failed to say or do something, that was
different from the testimony given at trial. A simple mistake by a witness does not
necessarily mean that the witness did not tell the truth as he or she remembers it.
People may forget some things or remember other things inaccurately. If a witness
made a misstatement, consider whether that misstatement was an intentional
falsehood or simply an innocent mistake. The significance of that may depend on
whether it has to do with an important fact or with only an unimportant detail.
Even though a witness may be a party to the action and therefore interested
in its outcome, the testimony may be accepted if it is not contradicted by direct
evidence or by any inference that may be drawn from the evidence, if you
believe the testimony.
Do not decide this case by merely counting the number of witnesses who
have testified about a fact. The testimony of a single witness can prove any fact,
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even if a greater number of witnesses testified to the contrary, if after considering
all the evidence, you believe that witness.
You heard the testimony of David Lerman, who expressed opinions on
Derrick’s damages. When knowledge of technical subject matter may be helpful to
the jury, a person who has special training or experience in that technical field is
permitted to state his or her opinion on those technical matters. However, you are
not required to accept that opinion. As with any other witness, it is up to you to
decide whether to rely on it.
Certain charts and summaries have been shown to you solely to help explain
or summarize the facts disclosed by the books, records, and other documents that
are in evidence. These charts and summaries are not evidence or proof of any
facts. You should determine the facts from the evidence.
The fact that a person brought a lawsuit and is in court seeking damages
creates no inference that the person is entitled to a judgment. Anyone may
make a claim and file a lawsuit. The act of making a claim in a lawsuit, by itself,
does not in any way tend to establish that claim and is not evidence.
Specific Instructions
Instructions on the Nature of the Case
In 2009, Derrick and PLS entered into a written agreement to work together
to develop and market an online Database consisting of information on oil and gas
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mergers and acquisition deals around the world. The written agreement was titled
the “Memorandum of Understanding.” Under the Memorandum of Understanding,
Derrick and PLS would sell subscriptions to the Database to customers in the North
American market, with an added goal of moving beyond that market to
international customers. Derrick would provide existing products, including the
Database it had developed starting in 2006, and ongoing operations support. PLS
would provide market penetration, product enhancement, and its client
relationships.
During the course of this trial, you heard attorneys and witnesses refer to the
“Oil and Gas Mergers and Acquisition Database.”

Derrick created its initial

version of the Database beginning in 2006, and it has evolved over time to
integrate new information as it became available.

By 2009, when the

Memorandum of Understanding began, Derrick had made various improvements to
its Database. This is generally referred to as the “Pre-MOU Derrick Database.”
Derrick and PLS sold subscriptions to the Database during their relationship
under the Memorandum of Understanding from October 2009 until May 2015.
This is generally referred to as the “MOU Database.”
Derrick has, since 2015, when the Memorandum of Understanding ended,
sold a version of the Database. This is referred to as the “Post-MOU Derrick
Database.” Derrick owns the “Pre-MOU Derrick Database,” the “MOU Database”
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sold from 2009 to 2015, and the “Post-MOU Derrick Database.” The fact of
Derrick’s ownership has been determined and is not an issue you will need to
resolve in this trial.
PLS created its own database after the parties’ relationship ended in 2015.
This is referred to as the “PLS Database.” The “Post-MOU Derrick Database” and
the “PLS Database” are currently being sold as competing products.
Both parties allege that the other breached the written Memorandum of
Understanding.

Derrick claims that PLS breached the Memorandum of

Understanding requirements on co-branding, made false statements of fact in its
advertisements about the MOU Database, and made misleading statements about
the MOU Database that caused customers to be confused about its ownership and
creation, causing Derrick damages.
PLS claims that Derrick breached the Memorandum of Understanding by
failing to disclose 14 international sales of MOU Database subscriptions generated
from a PLS lead, and that PLS is entitled to at least a 15% share of those
subscription sales revenues. PLS further alleges that Derrick and PLS modified the
Memorandum of Understanding to increase PLS’s share from 15% to 50% of
revenues from the 14 international subscription sales that PLS alleges were
generated from PLS leads. Derrick denies that any of these 14 sales was from a
PLS lead, and denies any modification of the written Memorandum of
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Understanding to pay 50% rather than 15% for international subscription sales if
PLS had provided the lead. PLS denies that it knew of these 14 sales when Derrick
made them. Derrick asserts that it informed PLS when the sales were made or
shortly thereafter and that PLS did not object.
Derrick seeks $11,018,672 in damages, representing what it claims to be the
money it lost and will lose because of customer confusion due to PLS’s failure to
co-brand as required by the Memorandum of Understanding or false
advertisements or misleading statements about the MOU Database. PLS seeks
$611,205 in damages, representing what it claims to be the money it would have
received had it received 50% of the revenues from the 14 international subscription
sales it claims were based on PLS leads.
Instructions for Jury Question No. 1
You are asked in Jury Question No. 1 whether Derrick has proved, by a
preponderance of the evidence, that PLS breached the Memorandum of
Understanding’s co-branding requirements. A contract is breached when one party
fails to perform an act or obligation that the contract requires, resulting in damages
to the other party.
To find that PLS breached the Memorandum of Understanding as
Derrick alleges, you would have to find that Derrick has proved, by a
preponderance of the evidence, that PLS failed to abide by the Memorandum of
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Understanding’s co-branding requirements, and that the failure proximately caused
Derrick damages. You are instructed that “proximately caused” means a cause that
was a substantial factor in bringing about an event, and without which cause such
event would not have occurred. The event must be a direct result or a reasonably
probable consequence of the cause. There may be more than one proximate cause
of an event.
The Memorandum of Understanding states that PLS shall provide:
“1. A full license to PLS’ brand and corporate name for use in
marketing E&P database products.”
The Memorandum of Understanding also states that PLS and Derrick have
certain joint agreements. They include the following:
“Jointly, PLS and Derrick agree to:
1. Provide E&P Database Services via a co-branded website under
respective companies main domains
...
8. The Parties agree to issue all Press Releases, Market Updates and
Research Announcements related to the Derrick/PLS, Inc. E&P
Databases under a joint Derrick and PLS brand.”
Instructions for Jury Question No. 2
You are asked in Jury Question No. 2 whether you find that PLS has proved,
by a preponderance of the evidence, that Derrick waived PLS’s compliance with
the Memorandum of Understanding’s co-branding requirements.

You are

instructed that waiver is the intentional surrender of a known right or intentional
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conduct inconsistent with claiming a known right.
Instructions for Jury Question No. 3
Jury Question No. 3 asks you to determine whether Derrick has proved, by a
preponderance of the evidence, that during the period the Memorandum of
Understanding was in effect, PLS made false advertisements about the MOU
Database. For you to answer “yes” to this question, you must find that Derrick has
proved, by a preponderance of the evidence that: PLS made one or more false
statements of fact in advertisements about the MOU Database; and one or more of
the false advertisements proximately caused Derrick damages.
In answering Jury Question No. 3, you are instructed that a false statement
of fact is one that can be empirically verified to be true or false, viewed in the
context in which it appears. If PLS has made literally false statements, Derrick
does not need to demonstrate that consumers or potential consumers were actually
misled.
The instruction on the meaning of “proximate cause” from page 9 applies.
Instructions for Jury Question No. 4
You are asked in Jury Question No. 4 whether Derrick has proved, by a
preponderance of the evidence, that PLS made misleading statements about the
MOU Database that actually caused customer confusion about the ownership and
creation of the Database.
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For you to answer “yes” to this question, you must find that Derrick has
proved, by a preponderance of the evidence, that:
1. PLS made one or more misleading statements about the MOU Database;
2. the statement either deceived, or had the capacity to deceive, a substantial
segment of potential consumers;
3. the deception was likely to influence the consumers’ purchasing decision;
and
4. one or more of the misleading statements proximately caused Derrick
damages.
A statement is misleading if it conveys a false impression, viewed in the
context in which it appears, and actually misleads a consumer. If PLS made an
ambiguous or misleading statement, Derrick must prove by a preponderance of the
evidence that consumers were actually misled. A statement can be misleading
even if it is literally true or ambiguous.
The instruction on the meaning of “proximate cause” from page 9 applies.
Instructions for Jury Question No. 5
You are asked in Jury Question No. 5 whether PLS proved by a
preponderance of the evidence that Derrick waived any claims that PLS had made
false advertisements or misleading statements about the MOU Database, if any.
You are instructed that waiver is the intentional surrender of a known right or
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intentional conduct inconsistent with claiming a known right.
Instructions for Jury Question No. 6
You are asked in Jury Question No. 6 whether PLS has proved, by a
preponderance of the evidence, that one or more of the following 14 international
sales of MOU Database subscriptions was generated from a PLS lead:
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Mitsui
Gazprom
Energy Intelligence
Ernst & Young
Data
Total
Centrica
Ophir
Marakon, also known as Charles River Associates
PricewaterhouseCoopers
Mirach
Rheinisch-Westfälisches Elektrizitätswerk
Statoil
Rystad
You must answer “yes” or “no” to each part of this question, indicating for

each of the 14 international subscription sales whether you find that it was
generated by a PLS lead.
Instructions for Jury Question No. 7
You are asked in Jury Question No. 7 whether PLS has proved, by a
preponderance of the evidence, that Derrick breached the Memorandum of
Understanding by failing to share the revenues from one or more of the 14
international sales of the MOU Database subscriptions you identified in Jury
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Question No. 6 as having been generated by a PLS lead. A contract is breached
when one party fails to perform an act or obligation that the contract requires,
resulting in damages to the other party.
The Memorandum of Understanding states:
“7. Regarding Derrick’s sales of E&P database outside of North
America generated via a lead supplied by PLS, Inc. . . . PLS, Inc. will
be entitled to 15% of sales.”
You must answer “yes” or “no” to each part of this question, indicating for
each sale whether you find that Derrick failed to share revenues with PLS for one
or more of the 14 international subscription sales that you identified in Jury
Question No. 6 as having been generated from a PLS lead, if any. If you find that
Derrick failed to share revenues with PLS for any of the sales you identified in
Jury Question No. 6, then go to Question No. 8.
Instructions for Jury Question No. 8
You are asked in Jury Question No. 8 whether you find that Derrick has
proved, by a preponderance of the evidence, that PLS waived any right to share in
the revenues from one or more of the 14 international subscription sales generated
from a PLS lead, if any. You are instructed that waiver is the intentional surrender
of a known right or intentional conduct inconsistent with claiming a known right.
Instructions for Jury Question No. 9
You are asked in Jury Question No. 9 whether PLS has proved, by a
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preponderance of the evidence, that the parties modified the Memorandum of
Understanding’s provision stating that Derrick would pay PLS 15% of the
revenues from Derrick’s international sales of subscriptions to the MOU Database
generated from a PLS lead. You are asked whether the parties, by their conduct,
modified this provision to increase the percentage from 15% to 50%.
To find that PLS has proved that the Memorandum of Understanding
language was modified by the parties’ conduct, you would have to find each of the
following:
(1) PLS and Derrick had a meeting of the minds, that is, both parties had the
same understanding on the change; and
(2) PLS provided added value beyond what the Memorandum of
Understanding already required it to do.
In determining whether there was a meeting of the minds, you must decide
whether a reasonable person would conclude, based on what the parties did and
said, that the parties agreed to modify the contract. You cannot consider the
parties’ subjective states of mind, but instead what they said and did.

In

determining whether a meeting of the minds, if any, was supported by added value
by PLS, you must find that PLS provided something more to Derrick than it was
obligated to provide under the Memorandum of Understanding, in exchange for an
increased share of the revenues from the 14 international subscription sales PLS
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claims were generated from a PLS lead.
Instructions for Questions on Damages
Instructions for Jury Question No. 10
Jury Question No. 10 asks you to determine the amount of damages
proximately caused to Derrick by one or more of these acts, if any.

I am

instructing you on damages not because I think that you should find that Derrick is
entitled to them, but only so that you will have guidance in the event you decide
that PLS breached the parties’ Memorandum of Understanding or made false
advertisements or misleading statements and caused damages to Derrick.
If so, then you must determine an amount that is fair compensation for those
damages. These are compensatory damages, intended to make Derrick whole—
that is, to compensate Derrick for the damage, if any, that it has suffered as a result
of PLS’s acts.

The damages amount is the amount Derrick proved by a

preponderance of the evidence that will place Derrick in the position it would have
been in if the Memorandum of Understanding’s requirements had been properly
performed or PLS had not made false advertisements or misleading statements.
Factors you may consider are:
- Derrick’s lost profits on lost sales, which consist of the revenues Derrick
would have earned but for PLS’s failure to co-brand as the Memorandum of
Understanding required or false advertisements or misleading statements;
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- PLS’s profits, if any, resulting from not co-branding as the Memorandum of
Understanding required or making false advertisements or misleading
statements; and
- Derrick’s loss of goodwill.

Goodwill is consumer recognition.

In

determining loss of goodwill, you should compare the value of Derrick’s
goodwill before any failure to co-brand or false advertising or misleading
statements with the value of Derrick’s goodwill after the failure to co-brand
or false advertising or misleading statements.
If you decide to award Derrick compensatory damages, you may hold PLS
liable only for damages that were foreseeable when the Memorandum of
Understanding was entered or the alleged false advertisements or misleading
statements were made. Foreseeable damages are those that a reasonable person
might anticipate.

In determining what is reasonably foreseeable, you should

consider the nature of the Memorandum of Understanding, the nature of the
parties’ business, their prior dealings, and all other circumstances related to the
contract and known to PLS.
If you decide to award compensatory damages, you should be guided by
dispassionate common sense. Computing damages may be difficult, but you must
not let that difficulty lead you to engage in arbitrary guesswork. An award of
damages may not be speculative. On the other hand, the law does not require that
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Derrick prove the amount of its losses with mathematical precision, but with as
much definiteness and accuracy as the circumstances permit. You must use sound
discretion in fixing an award of damages, drawing reasonable inferences from the
facts and circumstances in evidence.
Instructions for Jury Question No. 11
Jury Question No. 11 asks you to determine the amount of damages
proximately caused to PLS. I am instructing you on damages not because I think
that you should find that PLS is entitled to them, but only so that you will have
guidance in the event you decide that Derrick breached the parties’ Memorandum
of Understanding as to one or more of the 14 international sales, and that the
breach caused damages to PLS.
If you found, in answering any part of Jury Question No. 7, that Derrick
made one or more of the 14 international Database subscription sales from a PLS
lead and failed to pay PLS any of the subscription revenues from those sales, and
you did not find, in answering any part of Jury Question No. 8, that PLS waived
any right to share in those revenues, then under the Memorandum of
Understanding as written, Derrick owes PLS a 15% share of the subscription sales
revenues. For you to find that Derrick owes 50% for one or more of the sales, as
PLS alleges, you must have answered “yes” to Jury Question No. 9, finding that
PLS proved that the parties modified the Memorandum of Understanding to
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increase the amount from 15% to 50%.
Final Instructions on Deliberations and Verdict
When you go to the jury room to begin deliberating, you should first select a
foreperson to preside over your deliberations and speak for you here in the
courtroom. Your verdict must represent the considered judgment of each juror. It
is your duty to deliberate and to consult with one another in an effort to reach a
verdict. Each of you must decide the case for yourself, but only after an impartial
consideration of the evidence with your fellow jurors. During your deliberations,
do not hesitate to reexamine your own opinions and change your mind if you
are convinced that you were wrong. But do not give up on your honest beliefs
because the other jurors think differently, or just to finish the case. Remember that
you are not partisans. You are the judges of the facts. Your sole interest is to
seek the truth from the evidence in the case and the instructions on the law.
When you go into the jury room to deliberate, you may take with you a
copy o f this charge, the exhibits that I have admitted into evidence, and your
notes. A verdict form has been prepared for your convenience. The form has
space for your answers to the specific jury questions. You will take the verdict
form to the jury room.

When you have reached an agreement as to your

unanimous answer to each of the questions, your foreperson will fill the answers in
on the verdict form, sign and date it, and return to the courtroom.
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If you need to communicate with me during your deliberations, your
foreperson should write the message or question in a written note, sign it, and pass
the note to the court security officer who will be outside the jury room. After
consulting with the attorneys, I will respond either in writing or by meeting with
you in the courtroom. Keep in mind, however, that you must never disclose to
anyone, not even to me, your numerical division on any question.
You may now proceed to the jury room to begin your deliberations.
SIGNED on December 13, 2017, at Houston, Texas.
_____________________________
Lee Rosenthal
Chief United States District Judge

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