• November 29, 2017

BedUpdate (November 29, 2017): One thing about trials: they seem so momentous, so dramatic, so climactic, but sometimes they’re just a blip, just one chapter of an excruciating saga. Linked here is an order from the U.S. District Court (D. Minn.) (Frank, J.) vacating the judgment that we linked to below (and again link to here) (and, lest you forget, there was a court notice of judgment for the defendant though there was a money judgment against the defendant). So, who won this case anyway?

Update (November 21, 2017): Here is Defendants’ joint fee petition seeking attorneys’ fees (and not costs, apparently) of $8,994,614.79 (about $4.5 million a piece for the two defendants). Here is Plaintiff’s motion for fees of $4.6 million and costs of $950,000. It would seem neither side can argue the othe side’s fees are excessive (since they are roughly the same).

Update (November 7, 2017): The linked document clarifies that defendants in the Select Comfort bed battle were not entirely victorious but, still, they basically won. We note that the judgment is the 599th docket entry in the case. We do not know the legal fees and costs spent by Select Comfort but 10x the recovery or more seems likely.

Update (October 19, 2017): The linked document is a little puzzling but it looks like a total victory for the defendants.

Update (October 17, 2017): The extraordinarily hard-fought and long-standing civil litigation (trademark litigation, to be specific) between Minnesota bed behemoth, Select Comfort, and a smaller on-line bed-selling competitor, Personal Touch Beds and Personal Comfort Beds (et al.), finally went to trial before U.S. District Court Judge Donovan W. Frank (D. Minn.) over the past couple of weeks. The jury is deliberating…

Here-linked is the defendants’ motion for judgment as a matter of law filed this past week.

Original post (November 2, 2016) (“The Bed Battle Is On”): Back in January, we covered an on-going battle between Minnesota-based bed behemoth, Select Comfort, and a smaller competitor (one of many such battles that Select Comfort has waged to protect its Sleep Number™ empire).

Game on. Trial is set to begin on November 29, 2016. (Happy Thanksgiving 2016 to the warring lawyers!)

That means that the litigants are now setting the stage for trial, launching their barrages of motions in limine, trying to blow up some of the “evidence” proposed for use at trial by the other side.

Many questions arise, for example, is it in fact evidence that defendants conducted some of their business using pseudonyms? Should they get to exclude any such information at trial?

Many of us think the use of pseudonyms is a sign of dishonesty. At the same time, few would suggest that Samuel Clemens’ use of the pseudonym, Mark Twain, was evidence of the author’s dishonesty.

So when should a jury be allowed to hear evidence of a litigants use of a pseudonym?

This is not a difficult question, right?

When someone is charged with an act of fraud or dishonesty and accused of using a pseudonym in connection with the accused misconduct, that would seem to reflect an admission of wrong-doing.

On the other hand, sometimes pseudonyms are used for quite innocent reasons, even for safety reasons. People who work for debt collectors, for example, are known to use pseudonyms because one does not make many friends when collecting debts; one might even make an enemy or two. More generally, people in sales and customer service might choose to adopt pseudonyms in their work for any number of reasons, which unrelated to evidence of dishonesty. If your first name were Tadeusz and you were in telephone marketing, you might understandably introduce yourself as “Ted” or even “Sam.”

To me, the most interesting question about this motion in limine might be the meta-question: Why would defendants think that this proposed evidence, the use of pseudonyms in their work, is to be feared? Could this proposed evidence confuse a jury that has been asked to decide questions of false advertising, trademark infringement and dilution?

A fascinating challenge for trial lawyers is to anticipate and weigh the impact of discrete pieces of information that juries might hear. In my experience, as I march toward trial, I have a list of anywhere from 5 to 25 potential motions in limine and then I have to make difficult calls as to which motions have the highest probability of success and which actually matter. One never knows whether one made the right call. This is “the art of lawyering;” our decision-making may or may not be critical, it has no scientific basis, and it can never be validated.

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