Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-00329-WYD-CBS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00329-WYD-CBS CACHE LA POUDRE FEEDS, LLC Plaintiff, v. LAND O' LAKES, INC., LAND O' LAKES FARMLAND FEED, LLC., AMERICAN PRIDE CO-OP, POUDRE VALLEY COOPERATIVE ASSOCIATION, INC., FRANK BEZDICEK, ROBERT DeGREGORIO Defendants. DEFENDANTS' REPLY IN SUPPORT OF MOTION IN LIMINE TO EXCLUDE EVIDENCE CONCERNING ALPACA DEATHS Defendants, through their undersigned counsel, hereby submit this Reply in support of their motion in limine to exclude evidence concerning alpaca deaths as follows: I. INTRODUCTION

Plaintiff asserts 22 reasons for presenting evidence of alpaca deaths, yet nothing on this list makes pictures of dead animals, videos of angry animal owners or reports concerning lawsuits relevant to the issues in this case. Rather, Plaintiff's laundry list purporting to justify the introduction of this inflammatory evidence actually highlights its unduly prejudicial nature and the impact that Plaintiff seeks it to have. This is a trademark infringement action, not a case regarding Land O' Lakes' conduct in relation to the deaths of alpacas that occurred in Ohio in 2003. Based on Plaintiff's Response, however, it appears that Plaintiff intends to turn

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this case into a trial about Land O' Lakes conduct specifically with respect to that one incident. This is improper on a number of levels. Plaintiff laundry list can be grouped into three main categories. First, Plaintiff argues that the evidence is relevant to corrective advertising damages and the alleged harm caused to the PROFILE mark. But, this argument is premised on the fact that Plaintiff could need corrective advertising in Ohio or needs to address the harm there. In fact, Plaintiff has already admitted that it does not sell alpaca feed or any feed in Ohio altogether. Thus, as a matter of law, this evidence cannot relate to corrective advertising. Second, Plaintiff intends to present the documents and testimony surrounding the aftermath of the alpaca deaths as evidence of Land O' Lakes' character. Put another way, Plaintiff seeks to introduce evidence that Land O' Lakes has a "routine practice" of killing alpacas and that this is relevant to prove that Land O' Lakes acted in conformity with this "routine practice" when it infringed Plaintiff's trademark. This makes no sense and highlights the unduly prejudicial nature of this evidence. Third, Plaintiff seeks to introduce the evidence for the exact reasons that evidence is excluded under FRE 403 ­ to confuse and mislead the jury as to what it must consider in determining whether Land O' Lakes infringed Plaintiff's trademark. For example, Plaintiff asserts that evidence related to the alpaca deaths is "proof of egregious circumstances relative to enhanced, exemplary and other damages." To indicate to the jury that the alpaca deaths is proof that Land O' Lakes acted egregiously in relation to this case and that Plaintiff should recover damages as a result is nothing other than misleading. While Plaintiff argues that a "limiting instruction" that the evidence only relates to the 22 purposes set forth in its Response will cure any prejudice caused by the evidence, the

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"limiting instruction" would only further confuse and mislead the jury about the real issues in this case. Even putting aside the fact that the evidence Plaintiff intends to introduce will invite the jury to base its decision something else besides the established propositions of the case, the evidence itself will waste valuable court time ­ likely close to 2 days of testimony ­ in a trial that already will have close to 35 witnesses testify regarding relevant issues. Because the evidence is not relevant to any fact or issue in dispute in this case, and even if relevant, is unduly prejudicial, any evidence related to the deaths of alpacas should be excluded from trial. II. A. ARGUMENT

Deaths of Alpacas Is Not Relevant to Any Amount of Corrective Advertising Plaintiff Can Recover Any damages that Plaintiff can recover for corrective advertising is governed by Tenth

Circuit law set forth in Big O Tire Dealers, Inc. v. Goodyear Tire & Rubber Co., 561 F.2d 1365, 1375 (10th Cir. 1977). Corrective advertising damages must relate to the reasonable amount that Plaintiff will need to dispel any public confusion as to who owns the PROFILE mark, and is limited by advertising amounts in locations where there is an overlap of sales between the plaintiff and defendant. Id. Here, Plaintiff has never sold any animal feed in Ohio ­ the only location where the alpaca deaths occurred ­ and Plaintiff's owner, Ron Treiber, has testified that he has no plans in the future to sell feed in Ohio. See Exhibit 7 of Motion. Thus, even if Plaintiff is awarded damages for corrective advertising, there is no amount that could be awarded to correct any confusion in Ohio because Plaintiff has never sold any products in that state. See Big O, 561 F.2d at 1375. The Tenth Circuit does not permit a regional company to recover damages in order to run a nationwide campaign, so Plaintiff's attempt to use alpaca deaths in Ohio to prove the amount of corrective advertising damages it will need makes no sense. 3

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Further, corrective advertising is meant to dispel confusion about the owner of the mark, not about damage to the mark itself. Plaintiff argues that its expert , Cate Elsten, considered this evidence in her corrective advertising opinion. Accordingly, Plaintiff suggests that the newspaper and website articles, photographs, videos and pleadings from the alpaca litigation, is necessary to set up a "factual context" to her opinion regarding the nature and extent of harm to the PROFILE mark. See Response, p. 3, No. 18. Ms. Elsten's disclosed opinion, however, relates only to the total amount of corrective advertising available to Plaintiff based on a calculation of Land O' Lakes' advertising expenses. Indeed, Ms. Elsten testified that she has no opinion regarding any damage to the value of the PROFILE mark ­ whether as a result of the alpaca deaths, or some other reason: Q: ...You haven't determined the value of the damage to the mark, have you? A: No.1 Thus, there is no "factual context" to set up for Ms. Elsten's testimony because she has no opinion regarding the harm or damage to the PROFILE mark.2 In any event, there has never been any question that the alpaca deaths pertained to Land O' Lakes, and not Plaintiff. Many of the articles, e-mails, website postings and photographs Plaintiff wants to present do not even mention the PROFILE mark, but focus on Land O' Lakes' conduct in relation to the aftermath of the alpaca deaths. See Exhibit 3 to Motion. That Plaintiff seeks to present such evidence of negative publicity regarding Land O' Lakes demonstrates that Plaintiff's goal is not to show harm to its mark, but to taint Land O' Lakes in

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See Deposition of Cate Elsten, 271:14-16, attached hereto as Exhibit 8. Similar to Plaintiff's argument associated with its expert A. Carr Conway, Plaintiff seeks to invent new testimony at the eleventh hour, faced with the reality that its experts do not address the issues in this case.

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the eyes of the jury.

Since Plaintiff cannot recover corrective advertising damages in Ohio,

Plaintiff attempts to link the evidence of alpaca deaths as relevant to "establish the existence of trademark disparagement" and "to show the damage caused through trademark disparagement." See Response, p. 2, Nos. 3 and 4. Plaintiff has no claim for trademark disparagement; it never asserted a claim for trademark disparagement in this case. Rather, the Court specifically struck Plaintiff's reference to such a claim in the Final Pretrial Order, see Exhibit 2 to Motion, and specifically indicated at the April 5 status conference that Plaintiff will be limited to the claims actually pled in the Third Amended Complaint.3 The evidence will therefore have no tendency to make it more or less probable that Plaintiff's PROFILE mark was damaged or disparaged, and the evidence should be excluded under FRE 402. B. FRE 404 Prohibits the Presentation of Evidence Regarding Land O' Lakes' Alleged Character As A Feed Company That Allegedly Disregards Animal Life Using evidence of prior bad acts to argue that a person acted in conformity with that character is improper under FRE 404. This is exactly what Plaintiff intends to do with the presentation of the evidence surrounding the media campaign following the contamination incident and testimony from the alpaca owners. In other words, it is not simply the fact that the alpaca deaths occurred that Plaintiff seeks to introduce at this trial, Plaintiff intends to prove that Land O' Lakes' conduct towards these alpacas demonstrated bad character which somehow harmed Plaintiff. FRE 404 does not permit this type of evidence, and Plaintiff's

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Specifically, the Court stated: "I'm going to in this final pretrial order strike all the parenthetical references after "unfair competition" and I'm going to leave it "unfair competition" because unfair competition is what's in your third amended complaint and so it's unfair competition as you've alleged it; and whatever the law says it is, it is. And if you attempt to present claims that are broader than what the law provides or what you've pled, then I won't let you do it."

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attempt to apply the exceptions of FRE 404(b) only highlights the impropriety of how Plaintiff intends to use the evidence. For example, all of the publicity that alleges Land O' Lakes did not respond appropriately in 2003 to the alpaca deaths, or testimony from alpaca owners that they had a bad experience with Land O' Lakes following the alpaca deaths in 2003, cannot conceivably be probative of Land O' Lakes' "motive, opportunity, intent, preparation, plan, knowledge, or absence of mistake or accident" with respect to Land O' Lakes actions in 2001 concerning its adoption of the PROFILE trademark. It is improper under FRE 404 to offer a person's opinion of Land O' Lakes' character with respect to one incident as evidence that Land O' Lakes acted in conformity with that character in an earlier, unrelated incident. An issue of alleged food contamination simply has nothing to do with intentional trademark infringement. Plaintiff also asserts that the alpaca deaths evidence is admissible under FRE 406 because it will show that Land O' Lakes has a "routine practice" of "seeking profits...before any obligation to avoid harming others" and that LOL has a routine practice of "denying wrongdoing even in spite of simultaneous admissions of liability." See e.g., Response, p. 3, Nos. 14-17. There is no evidence that Land O' Lakes has a "routine practice" of seeking profits over an obligation to not harm others, whether it relates to animal deaths or to adopting a trademark. This is pure argument and spin by Plaintiff. In order to be admissible under FRE 406, the evidence must establish a set pattern or show that something is done routinely or has been performed on countless occasions, such as the routine practice of an insurance company in offering conditional insurance. See Rosenburg v. Lincoln American Life Ins. Co., 883 F.2d 1328, 1336 (7th Cir. 1989) (sufficient evidence of routine practice of insurance company

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established by testimony of 28 insurance agents). Evidence of one instance of feed contamination causing alpaca deaths does not tend to show any "routine practices" or patterns bearing on the facts in dispute here. Rather, Plaintiff hopes to persuade the jury that Land O' Lakes is "routinely" in the wrong. This is not what FRE 406 is meant to encompass. Plaintiff's argument that FRE 406 applies to this evidence actually highlights that it indeed wants the jury to base its decision not on the established propositions of a trademark infringement action, but on the sense that Land O' Lakes is a bad actor and engages in irresponsible Enron-type activities. C. Plaintiff Seeks to Use Evidence Surrounding the Alpaca Deaths To Unfairly Prejudice the Jury Against Land O' Lakes, Rendering It Inadmissible Under FRE 403 Plaintiff seeks to use evidence surrounding the alpaca deaths for the exact reasons that evidence is excluded under Rule 403. Perhaps the most telling indicator of this very fact is Plaintiff's own statement that "LOL hopes to minimize the perception of the harm it caused, however, the jury is entitled to understand the full extent of how LOL's intentional, bad faith, continued infringement damaged Treiber's Profile mark...." Response, pp. 5-6. In other words, Plaintiff will argue that Land O' Lakes' alleged "bad" actions with respect to the alpaca deaths should suggest to the jury that Land O' Lakes acted in bad faith with respect to the alleged infringement. This is inherently misleading because the alleged "bad" actions in each case are completely divorced from one another ­ one involves alleged contamination of animal feed, the other the allegations that Land O' Lakes adopted a trademark with the intent to benefit from goodwill or reputation of Plaintiff. It is improper to suggest to the jury that conduct related to the former is suggestive of conduct related to the latter.

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Regardless of how Plaintiff intends to portray the evidence surrounding the alpaca deaths, the evidence itself is in and of itself unduly prejudicial. For example, the video of the dead and dying alpacas will do nothing more than trigger an emotional reaction from the jury. It is completely unnecessary and will automatically, if subconsciously, cause the jury to think less of Land O' Lakes, notwithstanding the fact that the video has nothing to do with any alleged damage to the PROFILE mark, or to likelihood of confusion. Finally, the argument that a limiting instruction indicating that the evidence regarding alpaca deaths only relates to the 22 reasons set forth in Plaintiff's response should cure any prejudice makes no sense. Such an instruction only invites the jury to improperly interpret the evidence because the reasons are improper characterizations of that evidence in the first place. For example, Plaintiff argues that a limiting instruction stating that the alpaca deaths are "evidence of the consequences caused by LOL's willful and/or bad faith decision to continue use of Treiber's Profile mark in spite of having been told not to use it...." Response, p. 3, No. 22. This is not a limiting instruction at all, but a suggestive argument that the jury should interpret the evidence as proof of willful trademark infringement. Rule 403 is meant to prevent this type of confusion of the issues, not condone it. Putting aside the inflammatory and prejudicial nature of the evidence, waste of the jury's time is a particularly important factor in determining whether to exclude evidence under Rule 403. See In re Agent Orange Product Liability Lit., 611 F.Supp. 1223, 1255 (D.C.N.Y. 1985). Based on the large amount exhibits and witnesses relating to the alpaca deaths and the investigation that Plaintiff has set forth in the Pretrial Order, presentation of this evidence will take days. Even if Plaintiff is committed to calling 3 or 4 witnesses for an hour, more time will

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be needed for cross-examination, and Defendants will need to call rebuttal witnesses. The jury should not be burdened with this evidence, which is so remote from the facts in dispute in this case. III. CONCLUSION

Land O' Lakes is not attempting to avoid the consequences associated with the alpaca deaths, as Plaintiff argues. Land O' Lakes admitted liability with respect to 73 alpaca deaths, and went to trial regarding this very issue. But Plaintiff seeks not only to use the fact that alpacas died after ingesting Land O' Lakes' feed (a fact itself irrelevant) but to capitalize on the negative publicity surrounding that incident. Thus, even if the evidence is remotely relevant to an issue in this case, the danger of unfair prejudice to Land O' Lakes substantially outweighs any probative value. The Court can and should decide this issue prior to trial as it will affect the presentation of the parties' cases from the opening remarks.

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Respectfully submitted this 11th day of May, 2007. s/ Elizabeth Morton Tucker K. Trautman Gregory S. Tamkin Elizabeth L. Morton V. Aaron Hughes DORSEY & WHITNEY LLP 370 Seventeenth Street, Suite 4700 Denver, CO 80202-5647 Telephone: (303) 629-3400 Facsimile: (303) 629-3450 E-mail: [email protected] [email protected] [email protected] [email protected] Attorneys for Land O' Lakes, Inc.; Land O' Lakes Farmland Feed, LLC; American Pride Co-Op; Poudre Valley Cooperative Association, Inc.; Frank Bezdicek and Robert DeGregorio CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on May 11, 2007, I caused the foregoing document, DEFENDANTS' REPLY IN SUPPORT OF MOTION IN LIMINE TO EXCLUDE EVIDENCE CONCERNING ALPACA DEATHS, to be electronically filed with the Clerk of Court using the CM/ECF system. Notification of such filing will be sent to the following email addresses: [email protected] [Luke Santangelo] [email protected] [Cheryl Lynn Anderson] [email protected] [Thomas R. French] [email protected] [Randy E. Dunn] s/ Elizabeth Morton Elizabeth L. Morton Attorneys for Defendants DORSEY & WHITNEY LLP 370 Seventeenth Street, Suite 4700 Denver, CO 80202-5647 Telephone: (303) 629-3400 Facsimile: (303) 629-3450 E-mail: [email protected]

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