Free Clerk's Judgment - District Court of Colorado - Colorado

Case 1:01-cv-00413-JLK-BNB

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Filed 01/29/2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-CV-00413-JLK (BNB) M.D. MARK, INC., Plaintiff, v. KERR-McGEE CORPORATION and ORYX ENERGY COMPANY, Defendants. _____________________________________________________________________________ ORDER AND AMENDED JUDGMENT _____________________________________________________________________________ Upon consideration of Defendants' Unopposed Motion for Entry of a Final Judgment and to Stay Execution (Doc. 305), the Motion is GRANTED and the Judgment entered September 28, 2007 is AMENDED as follows: This matter was tried from September 17, 2007, through September 28, 2007, before a duly sworn jury of eleven, Senior Judge John L. Kane presiding. At the conclusion of Plaintiff's case, the Court granted Defendants' oral Rule 50 motion on the claim for punitive damages. The trial proceeded to conclusion on the remaining claims for breach of contract and misappropriation of trade secrets, and the jury rendered its verdict as follows on September 28, 2007: We, the Jury, being duly impaneled and sworn to try the above-entitled case, unanimously find the following answers to the questions submitted by the Court. SECTION A M.D. Mark's Claim against Kerr-McGee Corporation for BREACH OF CONTRACT (SEISMIC DATA LICENSE AGREEMENTS) BY ORYX ENERGY COMPANY

(See Instructions 3.2, 3.2.1, 3.2.2, 3.2.3, 3.2.4)

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Question A1 - Liability (a) Did M.D. Mark, Inc. prove by a preponderance of the evidence that its predecessor PGI did substantially all of the things that the Seismic Data License Agreements with Oryx (and Sun Exploration and Production Company) required PGI to do? See Jury Instruction 3.2.1 X YES ________NO ***** (b) Did M.D. Mark prove by a preponderance of the evidence that Oryx (formerly Sun Exploration and Production Company) failed to do something that one or more of the Seismic Data License Agreements required it to do or did something that one or more of the Seismic Data License Agreements prohibited it from doing? See Jury Instruction 3.2.1 X YES _________NO ***** (c) What is it that M.D. Mark proved Oryx (Sun) did or failed to do that constituted a breach of licensing agreement? Oryx (Sun) transferred the license agreement to Kerr McGee Corp, without prior approval Question A2. Damages - Breach of License Agreements. (Jury Instructions 3.4, 3.5, 3.7, 3.8) (a) Did M.D. Mark, Inc. prove by a preponderance of the evidence that Oryx's breach of one or more Seismic Data License Agreements caused M.D. Mark, Inc. to suffer actual damages? See Jury Instructions 3.5, 3.7 X YES __________ NO and we award nominal damages of $1 on this claim. ***** 2

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(b)

What amount of actual damages did M.D. Mark prove by a preponderance of the evidence is necessary to place M.D. Mark, Inc. in the position it would have enjoyed had the breach not occurred? See Jury Instruction 3.5, 3.7 $15,745,000.00

SECTION B -

M.D. Mark's Claim against Kerr-McGee Corporation for Kerr-McGee's BREACH OF CONTRACT (SEISMIC DATA LICENSE AGREEMENTS)

Question B1 - Liability (See Instructions 3.2, 3.2.1, 3.2.2, 3.2.3, 3.2.4)

(a)

Did M.D. Mark, Inc. prove by a preponderance of the evidence that Kerr-McGee Corporation entered into one or more valid Seismic Data License Agreements with M.D. Mark and/or its predecessor, PGI? (Instruction 3.2.1) X YES ________NO *****

(b)

Did M.D. Mark, Inc. prove by a preponderance of the evidence that PGI and M.D. Mark, Inc. did substantially all of the things that the Seismic Data License Agreements with Kerr-McGee Corporation, required PGI and M.D. Mark, Inc. to do? See Jury Instruction 3.2.1, 3.2.2, 3.2.3, 3.2.4 X YES ________NO *****

(c)

Did M.D. Mark, Inc. prove by a preponderance of the evidence that Kerr-McGee Corporation failed to do something that one or more of the Seismic Data License Agreements required it to do, or did something that one or more of the Seismic Data License Agreements prohibited it from doing? See Jury Instruction 3.2, 3.2.1, 3.2.2, 3.2.3, 3.2.4. X YES _________NO ***** 3

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(d)

What is it that M.D. Mark proved Kerr-McGee Corporation did or failed to do that constituted a breach of licensing agreement? transfer license to Kerr McGee Oil & Gas, no prior consent. All data was not returned trade secrets were not safe guarded

Question B2.

Damages - Breach of License Agreements. (Jury Instructions 3.4, 3.5, 3.7, 3.8)

(a)

Did M.D. Mark, Inc. prove by a preponderance of the evidence that Kerr-McGee Corporation's breach of one or more of the Seismic Data License Agreements caused M.D. Mark, Inc. to suffer actual damages? See Jury Instructions 3.5, 3.6, 3.7 __________NO and we award nominal damages of X YES $1 on this claim. *****

(b)

What amount of actual damages did M.D. Mark prove by a preponderance of the evidence is necessary to place it in the position it would have enjoyed had the breach not occurred? See Jury Instruction 3.5, 3.6, 3.7 $968,750.00

SECTION C -

MISAPPROPRIATION OF TRADE SECRETS AGAINST KERR-MCGEE CORPORATION

Question C1 - Liability. See Jury Instructions 3.2.2, 3.3.1, 3.3.2, 3.3.3 Did M.D. Mark, Inc. prove one or more of the following (subparagraphs (a) or (b)) by a preponderance of evidence: (a) Kerr-McGee Corporation gained access to and possessed PGI Data through improper means? (Instruction 3.3.2) X YES _____________NO *****

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(a)(i) When did Kerr-McGee improperly gain access to and possess the PGI Data? (Instruction 3.7) Kerr McGee had possession of the data in 1996 when it was shipped to Midcondata from Kerr McGee offices in Houston (b) Kerr-McGee Corporation, after the merger with Oryx, wrongfully transferred control of the PGI Data from Oryx, or any wholly owned subsidiary of Oryx, to a subsidiary of Kerr-McGee Corporation? (Instructions 3.3.2, 3.2.2 (defining subsidiary)) X YES _____________NO ***** Question C2 - Damages. See Jury Instructions 3.4, 3.6, 3.7, 3.8 What amount of damages, if any, did M.D. Mark prove, by a preponderance of the evidence, that would be necessary to compensate it for its losses caused by Kerr-McGee's misappropriation? See Jury Instructions 3.6, 3.7 $25,266,381.00 ACCORDINGLY, IT IS ORDERED that judgment is entered in favor of Plaintiff M.D. Mark, Inc., and against Defendants Kerr-McGee Corporation and Oryx Energy Company, in the amount of $25,266,381.00. It is FURTHER ORDERED that prejudgment interest shall be awarded on the amount of $25,266,381.00 at the rate of 8% compounded annually from February 1, 1999 through September 27, 2007, for a total prejudgment interest award of $23,949,712.68. It is FURTHER ORDERED that post judgment interest shall accrue on the total amount of the amended final judgment at the rate of 4.11% from September 28, 2007 until paid. It is FURTHER ORDERED that Plaintiff shall have its costs by the filing of a Bill of Costs

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with the Clerk of this Court within ten days of the entry of judgment. Finally, it is ORDERED that execution on this Amended Judgment shall be STAYED until 10 days after its entry so that Defendants may file a supersedeas bond and pursue their rights to appeal.

DATED this 29th day of January, 2008.

FOR THE COURT: Gregory C. Langham, Clerk

By:

s/Charlotte Hoard Deputy Clerk

APPROVED:

s/John L. Kane SENIOR U.S. DISTRICT JUDGE

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