Kind of Interesting

[Rick Denney]

So the basis of the lawsuit was that BM failed to perform due dilligence before they wrote their letter.

No, it was a case where they lied. They stated plainly that they had analyzed the instruments and found them to be unworthy, when in fact that had not done so. According to the article, the employees at BM had not even seen the instruments, let alone analyzed them.

Whatever junk the FA instruments are, it's still actionable to lie about people in public such that they are harmed.

It would have been easy for BM to make their point by doing as I suggest and advising parents to inquire at local shops as to whether the FA instruments could be serviced or parts obtained. If the FA instruments are as you say, those parents would learn what they needed to know. And BM would have been giving good advice instead of fibbing.

I'm less concerned about buyers than you are. People learn when they buy without doing any research. At least these lessons are relatively cheap. If the instruments are unusable, then they are not merchantable and pretty soon the returns will force them to either improve or pull their products (or get rejected by retailers), and if they're bad enough they'll get busted by some ambitious attorney general. It will fix itself without Brook Mays's fibbage. The penalty is probably silly but the guilt is there.

Rick "wondering why BM didn't or couldn't line up dozens of repair techs to report on their substandard construction" Denney

[Rick Denney]

BM probably didn't have the funds to drag things out for a decade.

No argument from me on anything you said. I've spent my share of time giving testimony and observing tort liability cases, and have seen how it works from the inside.

But Brook Mays did this to themselves, and I don't have much sympathy for the guilty verdict.

Rick "who thinks Brook Mays can't blame the legal profession for this one" Denney

[Chuck(G)]

So, how the heck did FA figure out that no one at the shop had even seen one of their instruments?

[windshieldbug]

When First Act filed the case in 2003, it immediately asked that Brook Mays be ordered to save all internal evidence related to the suit.

Gee, Enron didn't seem to have any trouble with that...

[Chuck(G)]

So, how the heck did FA figure out that no one at the shop had even seen one of their instruments?

When First Act filed the case in 2003, it immediately asked that Brook Mays be ordered to save all internal evidence related to the suit.

There you go.

Yeah, but how did they know? It's one thing to suspect that the other guy is bluffing, but unless you have some inside information, it can be pretty foolhardy to raise and call.

Maybe an not-very-gruntled employee told on them?

[Alex F]

It's standard practice, in civil litigation, for the plaintiff to seek an order requiring preservation of all records, including docs, disks, diaries, PDA's, logs, etc. etc. Then you request, via interrogatories and document production requests, copies of everything. Standard response time to interrogatories is 28 days in federal practice, but you then get into please for extention and the hardball stuff, like motions to compel and motions for sanctions. I've read the docket report on this case and it was brutal. In addition, there was an interlocutory appeal taken to the Court of Appeals on jurisdiction matters.

It appears, however that this case has been settled. After trial, post-trial motions were filed to reduce the verdict and it was was slightly reduced. Recently, the court dismissed the case on agreed motion of both parties, both parties agreeing to waive all rights of appeal. There is no public record but this usually happens when parties have settled and don't want the settlement agreement to made part of the record.

The jury has to follow instructions provided by the judge. I have read some of them and they are hard for me, as a trained lawyer, to understand. There are also some real issues with regard to how the trial judge here applied the law of commercial trade disparagement.

[Rick Denney]

So, how the heck did FA figure out that no one at the shop had even seen one of their instruments?

They asked. It's hard to fabricate a story, sitting on the stand in that courtroom, not knowing at all what your mates have said. You tell the truth and maybe the company gets nailed. You lie and maybe you get nailed.

Also, there was no written record of any analysis having been conducted, but I'll bet the testimony was more powerful in exposing the fib.

Rick "who has been on both sides of these sorts of conflicts" Denney

[Rick Denney]

Maybe an not-very-gruntled employee told on them?

All that would have come out during depositions held during the discovery phase of the trial. If the discovery had turned up a well-established trail of truth, I suspect FA would have abandoned the suit.

Rick "who has squashed more than one frivolous suit with unfavorable but unshakeable deposition testimony" Denney

[windshieldbug]

So, how the heck did FA figure out that no one at the shop had even seen one of their instruments?

They asked. It's hard to fabricate a story, sitting on the stand in that courtroom, not knowing at all what your mates have said. You tell the truth and maybe the company gets nailed. You lie and maybe you get nailed

Yes, but I think Chucks point is that you don't even start racking up billable hour unless you already know.

[Chuck(G)]

Yes, but I think Chucks point is that you don't even start racking up billable hour unless you already know.

Exactly. If I were in the FA driver's seat, I wouldn't want to bet that an outfit the size of BM hasn't seen my stuff.

[tubatooter1940]

Then get ready for the marching guitar bands



<img src="http://www.estebanmusic.com/gallery_fil ... edited.jpg" width="200">

Marching guitar bands, thats what we need!
Strap on a Fender Strat, hang a 100 watt Pignose amp from a back pack and tow a Honda generator in a coaster wagon tied to our rearmost belt loop.

[Chuck(G)]

Good point, Lisa! My understanding is that commercial speech allows considerably more latitude...