Monday, July 7, 2008

FLOORgraphics’ Suit Against News America Marketing Set for Trial October 1



Reconsideration Denied - On June 23, News America Marketing's motion for reconsideration of the denial of its summary judgment motion in Floorgraphics, Inc. v. News America Marketing In-Store Services, Inc., No. 04-3500 (D.N.J.) was denied, setting the stage for trial, which has been set for October 1, 2008.

Evidence of Causation - News America's original summary judgment motion was denied on April 24, as discussed in this previous post. News America sought reconsideration of that ruling, arguing that, after the exclusion of one of its experts, FGI lacked admissible evidence of causation for its claim for tortious interference with a prospective business relation. Plaintiff FGI responded that sufficient evidence was presented through its experts and News America documents, relying on, for example:

  • A 2003 letter from News to CPGs claimed that FGI installed only 49% of its customer ads, and that News installed 90% of its ads. News made similar representations in 2003 to Safeway, which switched to News in 2004;
  • An FGI expert concluded that lawful competition could not explain the abrupt decline in FGI revenues;
  • Another FGI expert concluded that, assuming the evidence of News' bad acts to be true, the result caused FGI's customer base to erode rapidly and significantly.

The court concluded that "Plaintiff has submitted sufficient evidence that could lead a jury to believe, that, if there had been no interference, there was a reasonable probability that Plaintiff would have received anticipated economic benefits from CPGs and retailers."

Trial Date – On July 3, the court issued an order setting trial for October 1, with trial to follow thereafter.

Tips / Suggestions - I have received a number of helpful tips and suggestions from readers of this blog related to News America Marketing. These tips have been very helpful and I am continuing to follow up on some of the leads you have provided. I encourage readers to continue sending me their thoughts and insights about News America and any other topic at dlow@kotchen.com.

Related Post: Summary Judgment Motion Denied in FGI v. News America Marketing.

 

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