Free Verdict Sheet - District Court of Delaware - Delaware

Case 1:04-cv-00582-GMS

Document 58

Filed 08/15/2005

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IN THE UNITED STATE DISTRICT COURT FOR THE DISTRICT OF DELAWARE In re: INACOM CORP., et al., Debtors. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Chapter 11 Case No. 00-2426 (PJW)

INACOM CORP., on behalf of affiliated Debtors, Plaintiff, v. DELL COMPUTER CORPORATION, et al, Defendants.

Civil Action no. 04-582-GMS Adv. No. 02-3499

DEFENDANT'S PROPOSED SPECIAL INTERROGATORIES/SPECIAL VERDICT FORM Pursuant to FED. R. CIV. PROC. 49, D. Del. LR 51.1, and the Court's scheduling order, Defendant, Dell, Inc. (f/k/a Dell Computer Corporation) ("Dell"), files the attached Proposed Special Interrogatories/Special Verdict Form in triplicate and on diskette.

DEFENDANT'S PROPOSED SPECIAL INTERROGATORIES/SPECIAL VERDICT FORM

006005.00189:175611.07

Case 1:04-cv-00582-GMS

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Respectfully submitted, /s/ Kevin A. Guerke Patricia P. McGonigle Delaware State Bar No. 3126 Kevin Guerke Delaware State Bar No. 4096 Seitz, Van Ogtrop & Green, P.A. 222 Delaware Avenue, Suite 1500 P.O. Box 68 Wilmington, Delaware 19899 Telephone: (302) 888-0600 Telecopier: (302) 888-0606 and H. Robert Powell Texas State Bar No. 16197000 Sabrina L. Streusand Texas State Bar No. 11701700 G. James Landon Texas State Bar No. 24002445 Hughes & Luce, L.L.P. 111 Congress Avenue, Suite 900 Austin, Texas 78701 COUNSEL FOR DELL, INC. (F/K/A DELL COMPUTER CORPORATION)

DEFENDANT'S PROPOSED SPECIAL INTERROGATORIES/SPECIAL VERDICT FORM 006005.00189:175611.07

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CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of Dell, Inc.'s Trial Brief was served on this the 15th day of August, 2005 as set forth below: Earl M. Forte, Esq. Blank Rome, LLP One Logan Square 18th & Cherry Streets Philadelphia, PA 19103-6998 Elio Battista Blank Rome LLP Chase Manhattan Centre 1201 Market Street, Suite 800 Wilmington, DE 19801 Andrew Caine Pachulski, Stang, Ziehl, Young 10100 Santa Monica Boulevard Suite 1100 Los Angeles, CA 90067 Jonathan P. Hersey Bingham McCutchen LLP 600 Anton Blvd., 18th Floor Costa Mesa, CA 92626 Stephen C. Hunt Charles M. Tatelbaum Adorno & Yoss, P.A. 350 E. Las Olas Blvd., Suite 1700 Fort Lauderdale, FL 33301 Culver Halliday Stoll, Keenon & Park, L.L.P. 300 W. Vine Street, Suite 2100 Lexington, Kentucky 40507-1801 Attorneys for Plaintiff, Inacom Corp. U.S. Mail

Attorneys for Plaintiff, Inacom Corp. Hand Delivery

Attorneys for Plaintiff, Inacom Corp. U.S. Mail

Attorneys for Ingram Entertainment, Inc. U.S. Mail

Attorneys for Tech Data Corporation U.S. Mail

Attorneys for Lexmark International U.S. Mail

/s/ Kevin A. Guerke Kevin Guerke (DE4096)
DEFENDANT'S PROPOSED SPECIAL INTERROGATORIES/SPECIAL VERDICT FORM 006005.00189:175611.07

Case 1:04-cv-00582-GMS

Document 58

Filed 08/15/2005

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IN THE UNITED STATE DISTRICT COURT FOR THE DISTRICT OF DELAWARE In re: INACOM CORP., et al., Debtors. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Chapter 11 Case No. 00-2426 (PJW)

INACOM CORP., on behalf of affiliated Debtors, Plaintiff, v. DELL COMPUTER CORPORATION, et al, Defendants.

Civil Action no. 04-582-GMS Adv. No. 02-3499

VERDICT FORM We, the jury in this action, unanimously find the following: PREFERENCE CAUSE OF ACTION1 QUESTION NO. 1 Do you find, from a preponderance of the evidence, that Inacom was insolvent at any of the times after March 16, 2000, that Inacom paid Dell for the products Dell had previously sold and delivered to Inacom? Answer "Yes" or "No": ______________________

If you answered Question No. 1 "Yes" then answer the following questions; if you answered the question "No", skip all remaining questions and date and sign this Verdict Form.

1

The parties have agreed to stipulate that the following elements of Plaintiff's preference claim have been met: (1) that the transfers were to or for the benefit of Dell; (2) that the transfers were on account of an antecedent debt owed by Inacom before such transfers were made; and (3) that the transfers were within the ninety (90) days before the date of the filing of the petition. Should these stipulations not be entered, Dell reserves the right to supplement and/or amend this proposed verdict form to properly include such elements.

DEFENDANT'S PROPOSED SPECIAL INTERROGATORIES/SPECIAL VERDICT FORM 006005.00189:175611.07

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QUESTION NO. 2 On what date prior to the bankruptcy filing by Inacom on June 16, 2000, did Inacom first become insolvent if at all? Answer: QUESTION NO. 3 Do you find, from a preponderance of the evidence, that Dell received more by the payments than it would have received if the payments had not been made and if this had been a Chapter 7 bankruptcy case? Answer "Yes" or "No": ______________________ ____________________

If you answered Question No. 3 "Yes" then answer the following questions; if you answered the question "No", skip all remaining questions and date and sign this Verdict Form. ORDINARY COURSE DEFENSE2 QUESTION NO. 4 Were all of the payments by Inacom to Dell after March 16, 2000, except the April 3, 2000 payment of $806,278.00, made in the ordinary course of business or financial affairs between Inacom and Dell? Answer "Yes" or "No": QUESTION NO. 5 Were all of the payments by Inacom to Dell after March 16, 2000, except the April 3, 2000 payment of $806,278.00, made according to ordinary business terms? Answer "Yes" or "No": ______________________ ______________________

If you answered "Yes" to both question numbers 4 and 5 then skip all remaining questions and date and sign this Verdict Form, otherwise follow the instructions for Question No. 6. QUESTION NO. 6 If you answered Question No. 4 "No", then answer Question 6A., otherwise proceed to Question 6B and do not answer Question 6A.
The parties have agreed to stipulate that the following element of Dell's ordinary course defense has been met: that the transfers were in payment of a debt incurred by Inacom in the ordinary course of business and financial affairs of Inacom and Dell. Should this stipulation not be entered, Dell reserves the right to supplement and/or amend this proposed verdict form to properly include such element.
2

DEFENDANT'S PROPOSED SPECIAL INTERROGATORIES/SPECIAL VERDICT FORM 006005.00189:175611.07

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QUESTION 6A. Find as to each payment in the following Table whether such payment was made in the ordinary course of business or financial affairs between Inacom and Dell. Answer by writing "Yes" or "No" next to each payment in the space provided under the "Question 6A." column of the Table provided in this Question 6. If you answered Question No. 5 "No", then answer Question 6B., otherwise proceed to Question 7 and do not answer Question 6B. QUESTION 6B. Find as to each payment in the following Table whether such payment was made according to ordinary business terms. Answer by writing "Yes" or "No" next to each payment in the space provided under the "Question 6B." column of the Table provided in this Question 6.

DEFENDANT'S PROPOSED SPECIAL INTERROGATORIES/SPECIAL VERDICT FORM 006005.00189:175611.07

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TABLE Payment Applied Date Payment Amount Question 6A. (Payments in Ordinary Course) Question 6B. (Payments Under Ordinary Terms)

(Answer only if Question No. (Answer only if Question No. 5's 4's answer was "No") answer was "No") 1. 3/20/2000 2. 3/20/2000 3. 3/22/2000 4. 3/22/2000 5. 3/23/2000 6. 3/23/2000 7. 3/24/2000 8. 3/28/2000 9. 3/30/2000 10. 3/31/2000 11. 3/31/2000 12. 4/4/2000 13. 4/4/2000 14. 4/6/2000 15. 4/12/2000 16. 4/12/2000 17. 4/13/2000 18. 4/17/2000 19. 4/18/2000 20. 4/18/2000 21. 4/18/2000 22. 4/27/2000 23. 4/28/2000 24. 5/3/2000 25. 5/12/2000 26. 5/17/2000 27. 5/22/2000 $1,515,938.54 $86,554.50 $4,561,559.51 $412.28 $236.55 $27.90 $433.59 $456.05 $37,349.32 $68,843.53 $1,136.80 $8,373.43 $474.00 $433.54 $114,440.81 $99.95 $160.55 $25,929.50 $215,051.45 $134,037.50 $938.00 $514.36 $298.92 $4,182.39 $215.97 $34,924.44 $489.09

DEFENDANT'S PROPOSED SPECIAL INTERROGATORIES/SPECIAL VERDICT FORM 006005.00189:175611.07

Case 1:04-cv-00582-GMS

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NEW VALUE DEFENSE3 QUESTION NO. 7 Do you find, a preponderance of the evidence, that Dell provided Inacom new value, in products or services, in the following amounts and on the dates listed? In order to answer any part of this Question "Yes", you must find the following elements for each amount: (1) payment for the new value was found by you to have been made at a time when Inacom was insolvent; and payment for the new value was either (a) not made in the ordinary course of business or financial affairs between Inacom and Dell or (b) not made according to ordinary business terms.

(2)

Answer Question 7 by writing "Yes" or "No" as to each of the line numbered one (1) through seven (7) below. 1. $679.00 on 3/21/00 2. $277.00 on 3/21/00 3. $598.75 on 3/22/00 4. $215.97 on 3/23/00 5. $2,718.44 on 3/29/00 6. $1,674.00 on 3/31/00 7. $32,475.01 on 4/11/00 8. $31,176.00 on 4/11/00 Dated: _______________. _______________________________ Foreperson
3

Answer "Yes" or "No": __________ Answer "Yes" or "No": __________ Answer "Yes" or "No": __________ Answer "Yes" or "No": __________ Answer "Yes" or "No": __________ Answer "Yes" or "No": __________ Answer "Yes" or "No": __________ Answer "Yes" or "No": __________

The parties have stipulated that all of the transfers in the preference period were to of for the benefit of Dell. Therefore, this element does not need to be submitted to the jury. Further, it is anticipated that at the time of submission to the jury there will be no dispute that the new value, as described in items one (1) through eight (8), was not secured by an otherwise unavoidable security interest. Should the above stipulation not be entered and/or should a dispute arise at to whether any new value provided was accompanied by an unavoidable security interest, Dell reserves the right to supplement and/or amend this proposed verdict form to properly include such elements.

DEFENDANT'S PROPOSED SPECIAL INTERROGATORIES/SPECIAL VERDICT FORM 006005.00189:175611.07