Free Notice (Other) - District Court of Colorado - Colorado

Case 1:02-cv-01004-JLK-BNB

Document 243

Filed 02/09/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 02-cv-01004-JLK-BNB VIRTUAL CLOUD SERVICES, INC., a Colorado corporation,, Plaintiff, v. CH2M HILL, INC., a Florida corporation, and TIMOTHY INGRAM, Defendants. VIRTUAL CLOUD'S NOTICE RE STATUS OF YARDSTICK MEASURE OF DAMAGES

Plaintiff Virtual Cloud Services, Inc., through its counsel, Moye White LLP, respectfully submits the following Notice of the status of Virtual Cloud's intent to introduce evidence concerning the yardstick measure of damages. Virtual Cloud submits this notice pursuant to the Court's instruction at the February 5, 2007 Final Trial Preparation Conference. The Court's oral ruling granting Defendants' Updated Motion in Limine to Exclude Plaintiff's Improper Lay Opinion Testimony excludes from evidence Shannon Bushman's testimony using the yardstick measure of damages to determine Virtual Cloud's lost profits based upon his review of CH2M Hill's profit projections. However, Virtual Cloud may still submit other evidence through CH2M Hill's own employees that relates to what Virtual Cloud contends is a similar business, Microsource, Inc., that CH2M Hill acquired in November 2004. Microsource offers network and fault monitoring services ­ services Virtual Cloud offered at the time it entered into an agreement to work with CH2M Hill marketing and

Case 1:02-cv-01004-JLK-BNB

Document 243

Filed 02/09/2007

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providing those services to potential and existing customers ­ as well as other services. In fact, on October 26, 2001 ­ at the same time CH2M Hill and Virtual Cloud were discussing their partnership, CH2M Hill described Microsource as a potential alternative to Virtual Cloud. (Virtual Cloud attaches a true and correct copy of an email from Ms. Remsing to Mr. Messenger describing Microsource as an alternative to Virtual Cloud as Exhibit A). As a result, through its purchase of Microsource, CH2M Hill is now back in the same business as Virtual Cloud, despite the fact that it proposes to show at trial that there is no business in that market. Virtual Cloud, therefore, intends to offer evidence of the price that CH2M Hill paid for Microsource as well as evidence of Microsource's profits both to disprove CH2M Hill's assertion that Virtual Cloud was unsuccessful in part because there is no market for network monitoring and fault management services and in order to provide a basis on which the jury could assess damages using the yardstick measure of damages. Defendants wrongly claim that by offering evidence concerning CH2M Hill's acquisition of Microsource and the value attributed to its services, "Virtual Cloud seeks to be permitted to selectively put on evidence regarding the world as it existed in the time after Defendants' alleged conduct in this case." Defendants' February 5, 2007 Response To Plaintiff's Motion In Limine Re Fixation Of Date For Measurement Of Damages And Exclusion Of Evidence Of Subsequent Events at 11. On the contrary, Virtual Cloud fully recognizes that any order granting this Motion in Limine would apply to its evidence concerning Microsource and would, therefore, shorten the presentation of evidence by both sides.

Case 1:02-cv-01004-JLK-BNB

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DATED this 9th day of February, 2007. Respectfully submitted,

s/ Scott R. Bauer ______________________________________ Scott R. Bauer Dart M. Winkler Moye White LLP 16 Market Square, 6th Floor 1400 Sixteenth Street Denver, CO 80202-5529 Telephone: 303 292 2900 Sarah Block Wallace, Esq. Featherstone Petrie DeSisto, LLP 600 - 17th Street, Suite 2400 South Denver, CO 80202 Telephone (303) 626-7100 ATTORNEYS FOR PLAINTIFF VIRTUAL CLOUD, INC.

Case 1:02-cv-01004-JLK-BNB

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CERTIFICATE OF SERVICE I hereby certify that on this 9th day of February, 2007, I electronically filed the foregoing NOTICE OF STATUS OF YARDSTICK MEASURE OF DAMAGES with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: David W. Stark, Esq. Heather Carson Perkins, Esq. Jennifer K. Harrison, Esq. Faegre & Benson, LLP 3200 Wells Fargo Center 1700 Lincoln Street Denver, CO 80203-4532 [email protected] [email protected] [email protected]

/s Mary Koltze __________________________________________