Free Memorandum in Opposition to Motion - District Court of Connecticut - Connecticut

N Case 3:00-cv-00706-SRU Document 1 1 1 Filed 05/07/2004 Page 1 of 4 N
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i` i E D UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT N
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BROADWAX__]QHEATRE CORP. ) N
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V. ) CIVIL ACTION NO: 300—CV00706 (SRU) N
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BUENA VISTA PICTURES ) I
DISTRIBUTION, ET AL. ) MAY 7, 2004 N
PLA.INTIFF’S OBJECTION TO l)EFENDANTS’ MOTION IN LIMINE
TO EXCLUDE PLAINTIFF’S DAMAGES ANALYSIS N
The Plaintiff brings this objection to Defendants’ Motion in Limine to Exclude
Plaintiff’s Damage Analysis.
Defendants’ intended expert, George L. Priest, speaking of Plaintiffs analysis,
incorrectly states:
"56. Mr. Spodick is not trained in economic analysis. Meaning no disrespect,. .. it is an N
economic tmism that, when ticket prices rise, demand declines. In Mr. Spodick’s l
approach, to the contrary, any demand in demand is multiplied times the 128 percent
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increase in price. (footnote: This means that if Mr. Spodick had raised his prices further, l
his damages have increased.)" N
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i _ Case 3:00-cv-00706-SRU Document 111 Filed 05/07/2004 Page 2 of 4 \{
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[ H Mr. Priest is not familiar with film industry economics. Appended is the annual
l report of the Motion Picture Association of America for 2003, delivered by Jack Valenti,
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the Pres1dent of that organization Valenti reports "DRAMATIC BOX OFFICE AND
ADMISSIONS INCREASES," accompanied by an increase in ticket prices of 2.7%.
It is not a truism in the film industry that a rise in ticket prices is accompanied by a
decline in sales. In fact, in this particular industry, the facts are quite the opposite.
Industry history demonstrates that growth in admissions income accompanied by an
increase in ticket prices is obviously not "mere speculation?
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In showing the fact of damage, "p1aintiff is required to establish with reasonable y
probability the existence of some causal connection between defendants’ wrongful act
and son1eloss..." Flintkote v. Lysfyord, 246 F.2d 368, 392 (9"‘ Cir. 1957), ggrt,
@., 355 U.S. 835. But the fact of damage, like any other fact, may be established as a I
matter of just and reasonable inference from the evidence, Bigelow v. RKO Radio
Pictures, Inc., 327 U.S. 2151, 264 (l946.) Once the fact of damage has been established, l
a lighter burden of proof applies to establishing the amount of damages. The amount of
@ damages, In anti—trust cases, and likewise in CUTPA cases, is necessarily imprecise.
But, ‘justice and public policy require that the wrongdoer shall bear the risk of
uncertainty which his own wrong has created. " Bigelow, at 265. Great uncertainty as to
amounts will be accepted where caused by the defendants’ wrongful acts. See:
Kodak Co. of New York v. Southern Photo Materials Co., 273 U.S. 359 (1927); A.C.
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{ , Case 3:00-cv-00706-SRU Document 111 Filed 05/07/2004 Page 3 of 4 1
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{ Becken Co. v. Gemex Corp., 272 F.2cl 1 (7th Cir. 1959,) cert denied, 362 U.S. 962 (1960).
A Loss ofthe value of the plaintiff s business or property caused by the defendants’
violations is a proper measure of plaintiff s damages. This is provided by comparison of i
plaintiffs business experience, his profits in particular, during the impact period, with his
experience either before after the period in which it was affected by the defendants’
behavior. See: Eastman Kodak, above.
The Plaintiff respectfully asks this Court to sustain its Objection to the granting of
Defendant.? Motion in Limine I
THE PLAINTIFF ¤
BROADWAY THEATRE CORPORATION
By Picew $0/—~——
Peter C. Spodick (ct 408103)
592 Central Avenue
New Haven, Connecticut 06515
203 387 5714 203 389 5732 (fax)
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I , Case 3:00-cv-00706-SRU Document 111 Filed 05/07/2004 Page 4 of 4 `
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CERTIFICATION or sssvxcs
The defendant certifies that a copy of this motion was posted, by first class mail, pre-paid,
this day, May 7, 2004, to:
Ben A. Solnit, Esq.
Elizabeth Andrews, Esq.
Richard Bowerman, Esq.
Tyler, Cooper and Alcom
205 Church shea
` New Haven, Connecticut
06510
Peter C. Spodick ct 408103
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