Free Declaration - District Court of Colorado - Colorado

Case 1:04-cv-01769-MSK-CBS

Document 133

Filed 11/04/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 1:04-cv-01769-MSK-CBS A MAJOR DIFFERENCE, INC., a Colorado corporation, Plaintiff, v. ERCHONIA MEDICAL, INC., an Arizona corporation, ERCHONIA MEDICAL LASERS, L.L.C., an Arizona limited liability company, ERCHONIA PATENT HOLDINGS, L.L.C., an Arizona limited liability company, Defendants.

ERCHONIA MEDICAL, L.L.C., an Arizona limited liability company, ERCHONIA MEDICAL, INC., an Arizona corporation, Counter-Claimants and Third-Party Plaintiffs, v. A MAJOR DIFFERENCE, INC., a Colorado corporation, ROBERT E. MORONEY, an individual, ROBERT E. MORONEY, L.L.C., a Colorado limited liability company, MIKI SMITH, an individual, KMS MARKETING, INC., a Colorado corporation, and STARGATE INTERNATIONAL, INC., a Colorado corporation, Counter-Defendants and Third-Party Defendants.

DECLARATION OF NEILL MORONEY

I, Neill Moroney, hereby declare as follows: 1. I am over the age of 18. I have personal knowledge of the facts set forth below and,

if called upon to do so, could and would competently testify thereto.

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2.

I am Vice President of A Major Difference, Inc. ("AMD"), the Plaintiff in this matter.

AMD is in the business of, among other things, marketing and selling a number of therapeutic products. Erchonia Medical, Inc. ("Erchonia") is AMD's main competitor in the United States. 3. By February of 2004 and continuing to this date, AMD has been advertising and

selling two distinct laser treatment systems. One is the Quantum System Laser. The other is the Excalibur Laser. 4. AMD began selling the Excalibur Laser in February 2004. AMD advertised the

Excalibur Laser in Dynamic Chiropractic, a trade journal, throughout the late part of 2004 and 2005. (Copies of some of these advertisements are attached as Ex. A.) As one would expect, Erchonia also advertises its therapeutic laser products in the Dynamic Chiropractic magazine. 5. AMD first described and began advertising the Excalibur Laser on its web site,

located at www.amajordifference.com, at least as early as February 2005. Since that time, AMD has always included information concerning the Excalibur Laser on its web site. 6. On March 16, 2005, I was deposed by Erchonia in Civil Action No. 02-2036-PHX-

MHM, pending in the United States District Court for the District of Arizona. During that deposition, I was asked if AMD sells therapeutic laser systems other than the Quantum System Laser. I answered yes, explaining that AMD sold both the Quantum System Laser and the Excalibur Laser. (A copy of relevant pages of my deposition transcript are attached as Ex. B.) 7. During the summer of 2005, AMD began undertaking to quantify the amount of

damages it had suffered due to false advertisements run by Erchonia in Dynamic Chiropractic in the summer of 2004, among other publications. At that time, AMD determined that provable damages appeared to have been minimal. Shortly thereafter, AMD was informed that it would likely cost tens 2

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of thousands of dollars to prove Erchonia liable for false advertising and related conduct and to present damages attributed to that conduct. AMD's management next compared the potential benefits it might reasonably hope to gain should it prevail on its false advertising and related claims against the cost of prosecuting those claims through trial. AMD completed its analysis in early 2005, deciding that it made no economic sense to continue pressing the false advertising and related claims. Shortly thereafter, counsel was informed of AMD's decision to withdraw all non-patent related claims from the action. 8. AMD agrees that it will not in the future reassert its Fifth, Sixth, Seventh, Ninth or

Eleventh Claims for Relief against Erchonia. I declare under penalty of perjury that all statements made herein of my knowledge are true and that all statements made on information and belief are believed to be true. Executed on November 2, 2005.

s/ Neill Moroney Neill Moroney

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CERTIFICATE OF SERVICE

I hereby certify that on this November 4, 2005, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Richard L. Gabriel, Esq. [email protected] Holme Roberts & Owen, LLP 1700 Lincoln Street, Suite 4100 Denver, Colorado 80203 John R. Mann, Esq. [email protected] Charles R. Ledbetter, Esq. [email protected] Valerie A. Garcia, Esq. [email protected] Kennedy Christopher Childs & Fogg, P.C. 1050 17th Street, Suite 2500 Denver, Colorado 80265

and I hereby certify that I have mailed or served the document or paper to the following non-CM/ECF participants in the manner (mail, hand-delivery, etc.) indicated by the non-participant's name: Ira M. Schwartz, Esq. [email protected] DeConcini McDonald Yetwin & Lacy, P.C. 7310 N. 16th Street, Suite 330 Phoenix, Arizona 85020 Via U.S. First Class Mail

s/ Lori R. Brown Lori R. Brown Assistant to Robert R. Brunelli SHERIDAN ROSS P.C. 1560 Broadway, Suite 1200 Denver, CO 80202-5141 Telephone: 303-863-9700 Facsimile: 303-863-0223 E-mail: [email protected] [email protected]
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