EXHIBIT A 

Case 1:20-cv-23391-JG Document 125-1 Entered on FLSD Docket 01/24/2023 Page 1 of 75
1 UNITED STATES DISTRICT COURT

 FOR THE WESTERN DISTRICT OF NORTH CAROLINA

2 CHARLOTTE DIVISION

3

4 CPI SECURITY SYSTEMS, INC., )

 )

5 Plaintiff and Counterclaim Defendant,)

 )

6 v. )Civil Action No.

 )3:20-CV-00504-

7 VIVINT SMART HOME, INC. f/k/a Mosaic )FDW-DSC

 Acquisition Corp.; and LEGACY VIVINT )

8 SMART HOME, INC. f/k/a Vivint Smart )

 Home, Inc., )

9 )

 Defendant and Counterclaimants. )

10 _________________________________________)

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15 VIDEOTAPED DEPOSITION OF BRIAN BUSS

16 Zoom Videoconference

17 Friday, October 8, 2021

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24 REPORTED BY:

 Katherine West, RPR

25 CSR No. 14386

 Pages 1 - 155

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1 Videotaped deposition of BRIAN BUSS, taken on

2 behalf of the Plaintiff and Counterclaim Defendant, via

3 Zoom videoconference, beginning at 9:02 a.m. PDT and

4 ending at 2:25 p.m. PDT, on Friday, October 8, 2021,

5 before Katherine West, RPR, CSR No. 14386, reporting

6 remotely via videoconference.

7 The signature of the witness was not waived.

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1 A P P E A R A N C E S

2

3 FOR PLAINTIFF AND COUNTERCLAIM DEFENDANT (appearing via

 videoconference):

4

 SHOOK, HARDY & BACON L.L.P.

5 By: Daniel E. Rohner, Esq.

 Eric J. Hobbs, Esq.

6 1660 17th Street

 Suite 450

7 Denver, Colorado 80202

 303.285.5300

8 drohner@shb.com

 ehobbs@shb.com

9

10 FOR DEFENDANTS AND COUNTERCLAIMANTS (appearing via

 videoconference):

11

 GREENBERG TRAURIG, LLP

12 By: Joshua R. Brown, Esq.

 450 South Orange Avenue

13 Suite 650

 Orlando, Florida 32801

14 407.420.1000

 brownjr@gtlaw.com

15

16 CLYDE SNOW & SESSIONS

 By: Matthew A. Steward, Esq.

17 201 South Main Street

 Suite 1300

18 Salt Lake City, Utah 84111

 801.322.2516

19 mas@clydesnow.com

20

21 ALSO PRESENT (appearing via videoconference):

22 Elanne Zambrano, Videographer

23

24

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1 E X A M I N A T I O N

 I N D E X

2

3 WITNESS: BRIAN BUSS

4 EXAMINATION BY: PAGE

5 MR. ROHNER 6

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7 E X H I B I T

 I N D E X

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 EXHIBIT DESCRIPTION PAGE

9

 Exhibit 1 Expert Report of Brian Buss 14

10

 Exhibit 2 Expert Report of Professor 14

11 Russell S. Winer, PhD

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1 ZOOM VIDEOCONFERENCE; FRIDAY, OCTOBER 8, 2021

2 9:02 a.m. PDT - 2:25 p.m. PDT

3 * * * * * * * * * *

4 THE VIDEOGRAPHER: Okay. Good morning,

5 everyone. We are on the record. The time is 9:02 a.m.

6 Pacific Time. Today is October 8, 2021. My name is

7 Elanne Zambrano. I'm a video technician with Veritext

8 Legal Solutions located in Los Angeles, California.

9 We are recording these proceedings over

10 videoconference technology due to COVID-19. This is the

11 video deposition of Brian Buss in the action entitled

12 CPI Security Systems, Inc. versus Vivint Smart Home,

13 Inc. This deposition is being taken on behalf of

14 plaintiffs and counterclaim defendant. The case number

15 is 3:20-CV-00504-FDW-DSC.

16 Now would you all please identify yourself and

17 who you represent, starting with the noticing attorney.

18 MR. ROHNER: Yes. This is Dan Rohner. I am

19 from Shook, Hardy and Bacon, and I represent CPI

20 Security Systems, Inc. On the line from my firm is Eric

21 Hobbs also representing CPI.

22 MR. BROWN: Hello. This is Joshua Brown with

23 Greenberg Traurig representing the defendants in the

24 case, and on the line with me is Matt Steward of Clyde

25 Snow also representing the defendants in the case.

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1 THE VIDEOGRAPHER: Okay. If that's everyone,

2 thank you. Now, will the court reporter please

3 administer the oath.

4 BRIAN BUSS,

5 called as a witness by and on behalf of the Plaintiff

6 and Counterclaim Defendant, and having been first duly

7 sworn, was examined and testified as follows:

8 EXAMINATION

9 BY MR. ROHNER:

10 Q Good morning, Mr. Buss.

11 A Good morning.

12 Q As I just said, my name is Dan Rohner, and I

13 represent the plaintiff in this case, CPI Security

14 Systems. I've had a look at your background and

15 qualifications, and so I know that you've testified

16 before, but I would like to go over a couple ground

17 rules that are particularly relevant to a Zoom

18 deposition if that's okay with you.

19 A Go right ahead.

20 Q Sure. So as you know, we're on Zoom which

21 sometimes can create at times delays in answers.

22 Typically not, but sometimes it can. So I'm going to

23 work hard to wait until you're done with your answer

24 before I ask the next question, and I'd ask if you'd

25 agree to do the same. If I'm asking a question, just

Page 7

1 wait until I finish it and ensure that I'm done before

2 you answer it.

3 Does that make sense?

4 A It does.

5 Q Also, if there's a question that you don't

6 understand, please do let me know. I will do my best to

7 rephrase it. If you answer a question, I'm going to

8 assume that you understood what I was asking.

9 Is that fair?

10 A I get it. That's fair.

11 Q Okay. If at any point you need a break,

12 please let me know. This is -- I'm not interested in

13 people feeling uncomfortable. We can jump back on

14 quickly. So if you need to use the restroom or need to

15 grab a bite, just let me know and we'll take a break at

16 an appropriate stopping point.

17 Okay?

18 A That sounds fair.

19 Q And that being said, from a scheduling

20 standpoint, I know you're on the West Coast. I am in

21 Mountain Time, and there's counsel for the defendant

22 that's on East Coast time. I'm not sure who has eaten

23 and who hasn't eaten, so it's 10:00 my time, 9:00 your

24 time. I'm thinking that probably around noon your time,

25 1:00 my time, is when I might take a slightly longer

Page 8

1 break to allow everyone to get a bite to eat. So if

2 that helps with your planning, I just want to let

3 everyone know that.

4 MR. ROHNER: And I know, Josh, that puts you

5 back late. I hope you maybe already had a bite.

6 MR. BROWN: If needed, I have a granola bar.

7 MR. ROHNER: Got it. Perfect.

8 BY MR. ROHNER:

9 Q All right. Great. So let's get started.

10 Mr. Buss, you've been, as I understand it, retained by

11 Greenberg Traurig to provide expert opinions in this

12 case; is that correct?

13 A Yes.

14 Q And tell me: What is your understanding of

15 the expertise that you are applying to give your

16 opinions in this case?

17 A You know, my professional experience and

18 expertise in business and financial analysis and

19 applying financial analysis and business analysis to the

20 analysis and calculation of economic damages.

21 Q Are you an expert in marketing?

22 A No.

23 Q Are you an expert in advertising?

24 A No.

25 Q Do you have any expertise in calculating the

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1 cost of a corrective advertising campaign?

2 A I have reviewed corrective -- I think the term

3 you used was corrective advertising campaigns. I have

4 reviewed those calculations in the past when they are

5 presented as economic damages calculations.

6 Q Okay. You mentioned you've done that in the

7 past. Describe for me your past experiences with

8 reviewing calculations of cost associated with

9 corrective advertising campaigns.

10 A Well, there's situations somewhat similar to

11 this case where I was asked to review such a calculation

12 and provide opinions about that calculation's

13 reasonableness as well as accuracy and also that

14 calculation's reasonableness as a measure of economic

15 damages.

16 Q Okay. And was that in a litigation?

17 A Yes.

18 Q What was the name of the litigation?

19 A You know, I would have to take a look at my

20 CV. I don't remember one specific case name offhand.

21 Q Was there more than one case where you've done

22 that?

23 A Yes. It's happened several times over the

24 years.

25 Q How many cases can you remember where you've

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1 given that type of opinion?

2 A You know, a ballpark of three or so.

3 Q Three. Okay.

4 Of the three that you think you've dealt with,

5 what do you remember factually about any of the cases?

6 We'll start with the first one that you can --

7 MR. BROWN: I'm going to object to form.

8 Misstates the witness' testimony.

9 You can answer.

10 THE WITNESS: So I believe you asked me what I

11 remember about the fact -- the factual circumstances of

12 the cases that I referenced.

13 BY MR. ROHNER:

14 Q Well, actually, let me take a step back.

15 Sitting here today, do you remember any of the names of

16 any of the parties for those three cases?

17 MR. BROWN: Object to form.

18 THE WITNESS: Sorry. I don't at the time --

19 at the moment. I would have to review my -- my, you

20 know, case list and practice history to dig -- to recall

21 those names.

22 BY MR. ROHNER:

23 Q Okay. Do you remember any of the

24 jurisdictions where these cases took place?

25 A No.

Page 11

1 Q Do you remember whether you were providing

2 testimony on behalf of the plaintiff or the defendant?

3 A Not off the top of my head.

4 Q And that leads me to the question I had asked

5 before. Do you -- what do you remember, if anything,

6 about the factual allegations in any of those cases?

7 MR. BROWN: Object to form.

8 THE WITNESS: You know, based on recollection,

9 they all involved some claims of trademark infringement

10 or confusion. You know, they were, as I suspect but I'm

11 starting to get into the realm of guessing and I don't

12 want to do that, that they were Lanham Act claims.

13 Yeah. That's what I remember at the moment.

14 BY MR. ROHNER:

15 Q Okay. Did any of the cases involve

16 allegations of deceptive sales practices?

17 MR. BROWN: Object to form.

18 THE WITNESS: Yeah, I don't recall.

19 BY MR. ROHNER:

20 Q Did any of the cases involve door-to-door

21 sales?

22 MR. BROWN: Object to form.

23 THE WITNESS: I don't recall.

24 BY MR. ROHNER:

25 Q Do you recall ever being used as an expert

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1 witness in a case that involved door-to-door sales?

2 A Not off the top of my head, but that doesn't

3 mean a no.

4 Q Have you had any training in corrective

5 advertising campaigns?

6 MR. BROWN: Object to form.

7 THE WITNESS: No.

8 BY MR. ROHNER:

9 Q Have you done any research related to

10 corrective advertising?

11 A Yes.

12 Q Describe -- well, let me actually add a more

13 specific.

14 Besides your work as an expert witness

15 reviewing materials associated with a specific

16 litigation, have you done any research related to

17 corrective advertising?

18 A Well, I'm not exactly sure if I understood

19 your question correctly. I have done research and I

20 have only seen a corrective advertising calculation in

21 the context of a dispute or litigation. And in

22 reviewing those calculations and in, you know, my

23 professional study and research as an economic damages

24 expert, I have, you know, reviewed some case law and

25 precedent and calculations for -- of corrective

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1 advertising remedies from cases that were outside the

2 scope of the cases I've worked on personally.

3 And I have, you know, reviewed the available

4 literature on damages calculations and in addressing

5 your question specifically about where the literature

6 covers corrective advertising as an economic damages

7 remedy.

8 Q Other than reviewing legal case law and

9 precedent and literature related to economic damages,

10 any other research that you've done personally that's

11 relevant to corrective advertising?

12 A That's what comes to mind at the moment.

13 Q Is there anything that would refresh your

14 recollection about additional research you've done?

15 A I can't think of anything right now.

16 Q We were talking before about what cases you

17 may have worked on that involved the issue of corrective

18 advertising. I'm going to share, if I can remember how

19 to do it here, our Exhibit 1 which is your report. And

20 you may recall that your report included a list of cases

21 in which you've provided testimony at trial or in

22 deposition. And I'm going to pull that up and show that

23 to you. I believe we also emailed to opposing counsel

24 Exhibit 1 and Exhibit 2 which is your report and

25 Dr. Winer's report.

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1 Did you receive those?

2 A I did.

3 Q Okay.

4 (Exhibit 1 and Exhibit 2 were marked for

5 identification.)

6 BY MR. ROHNER:

7 Q Sorry. I'm just trying to get my computer

8 working here.

9 A No. That's the fun of Zoom depositions.

10 MR. ROHNER: Let's just go off the record real

11 quick because I've run into a snag.

12 THE VIDEOGRAPHER: We're going off the record.

13 The time is 9:17 a.m.

14 (Off the record.)

15 THE VIDEOGRAPHER: We are going on the record.

16 The time is 9:23 a.m.

17 BY MR. ROHNER:

18 Q Okay. Mr. Buss, while we were on the break, I

19 pulled up your -- what I believe to be your expert

20 report that you filed on August 16, 2021, in this case,

21 and we've marked it as Exhibit 1 for your deposition.

22 Do you recognize -- I have the cover page

23 showing right now. Do you recognize that?

24 A It looks like the cover page of my expert

25 report, yes.

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1 Q And by any chance, do you have a hard copy of

2 the report with you as well?

3 A I can get one.

4 Q Well, probably for now, we're fine. I think

5 at some point as we go through the report, some

6 witnesses have found that particularly in these expert

7 depositions, they found it easier to have their hard

8 copy with them rather than relying on me to scroll back

9 and forth to show them spots in the deposition and so I

10 think that probably would make sense and I apologize for

11 not confirming that earlier. I just thought of that.

12 A That's all right.

13 Q But why don't we -- I'm going to scroll for

14 you to -- attached to your exhibit was essentially a

15 listing of your background and experiences that included

16 a list of cases.

17 Do you recall that?

18 A Yes.

19 Q And going back, I had asked you questions

20 specifically about cases that you've testified in where

21 the issue of corrective advertising was something you

22 opined about, and you could not recall the names of

23 those cases. So if you would, could you look through

24 the listing that you have attached to your report and

25 tell me if by reviewing that, it refreshes your

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1 recollection as to the cases where you testified

2 regarding corrective advertising. And what I'll do is

3 once you've gone through a page, just let me know, and

4 then I'll scroll to the next page.

5 A I mean --

6 MR. BROWN: Hold on, Brian. Hold on, Brian.

7 THE WITNESS: Go ahead.

8 MR. BROWN: Object to form. Mischaracterizes

9 the witness' testimony. Go ahead, Brian.

10 THE WITNESS: Thank you, Josh.

11 This report was -- I have submitted an

12 additional expert report since the date I submitted this

13 report, and the additional report is in a case similar

14 to this one. It's a case, ADT versus Vivint, and that

15 case involved a review of a corrective advertising

16 calculation. So it wouldn't be on this page because I

17 hadn't submitted that report at the time I submitted

18 this report.

19 BY MR. ROHNER:

20 Q So one of the cases you were -- when you talk

21 about the three cases earlier in your testimony, one of

22 those cases was ADT versus Vivint?

23 A You know, I hadn't --

24 MR. BROWN: Brian.

25 Object to form. Object to form.

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1 Mischaracterizes the witness's testimony.

2 Go ahead.

3 THE WITNESS: Got to remember to pause for you

4 there. Sorry.

5 Yeah. You know, unfortunately, it had just

6 slipped my mind at the time but, you know, now looking

7 at this, that one jumped back into my memory as the case

8 is ADT versus Vivint.

9 BY MR. ROHNER:

10 Q Okay. And that's a report that you've

11 submitted after the report that you've submitted in this

12 case; correct?

13 A Yes.

14 Q Okay. So you do believe there have been other

15 cases besides ADT versus Vivint where you've provided

16 testimony related to corrective advertising?

17 A Yes.

18 Q Okay. And so, again, looking at the -- your

19 listing of cases that are attached to your report in

20 this case, I'd like you to look through it. I'll scroll

21 for you unless you have a copy that's easier for you to

22 review, and then I would like you to let me know if you

23 can identify the cases that you were referring to.

24 A Yeah. There's -- none of the cases on this

25 first page involve the corrective advertising, so let's

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1 go to the next page.

2 Q Okay. Here's the next page. Oops. If I can

3 get it right.

4 A Can you scroll up a little?

5 Q Yeah. Hold on.

6 A We're all struggling with the technology at

7 the same time.

8 Q There you go. There's page 2.

9 A The case that is the fourth one from the top,

10 Universal Life Church versus American Marriage

11 Ministries, one of the proposed measures of economic

12 damages was a corrective advertising calculation.

13 Q Okay.

14 A That's it for the cases -- well, sorry. The

15 one at the bottom, Stockdale, Stockdale versus

16 Stockdale, one of the proposed remedies was a corrective

17 advertising.

18 Q Okay.

19 A The Mission Healthcare, one of the proposed

20 remedies was a corrective advertising calculation. And

21 the same for the Eagle Rock Resort case.

22 Q Anything else on that page?

23 A No.

24 Q Okay. Just scroll down to page 28.

25 A The Solar Sun Rings, I recall I had a

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1 corrective advertising calculation, but as you can tell

2 by the date, that's over five years ago, and it -- I

3 really couldn't tell you for sure without digging up

4 that file.

5 Q Okay. Anything else on that page?

6 A No.

7 Q Page 29?

8 A Yeah. I don't believe a corrective

9 advertising calculation was an element of any of these

10 cases.

11 Q Okay. And scrolling to the top of page 30.

12 A Yeah. Those three cases listed on this page

13 would not have involved a corrective advertising

14 calculation.

15 Q So I'm going to scroll back, and why don't

16 we -- I'm going to ask you some questions starting with

17 the most recent that you mentioned. Well, actually,

18 probably the second most recent. You mentioned the

19 Vivint and ADT case which is going on now; right?

20 A Yes.

21 Q Okay.

22 A It's my understanding it is still a live case.

23 Q Yeah. And so the first case you mentioned

24 after that was Uniform Life Church. Let me just find

25 that one.

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1 MR. BROWN: It's on page 26, if that helps.

2 BY MR. ROHNER:

3 Q That does help.

4 A There you go. You got it.

5 Q There we go. Got it. Okay.

6 So that's Universal Life Church Monastery

7 Storehouse versus American Marriage Ministries. It's a

8 2019 case in the District of Washington; is that right?

9 A I think you said 2019, but the date there is

10 2020.

11 Q Yeah. Well, yeah. I guess the case caption

12 is 2019.

13 A Oh, okay.

14 Q And it sounds like maybe your testimony was in

15 2020. Is that --

16 A That's probably correct.

17 Q Okay. Well, tell me about this case. What --

18 what were the -- in your view, what were the key facts

19 at issue in terms of the allegations that required

20 discussion of corrective advertising?

21 MR. BROWN: Object to form.

22 THE WITNESS: Well, as far as I know, the case

23 is still a live case, so I want to be a little careful

24 in how I answer just in case there's anything that's

25 subject to confidentiality. So let me think of how

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1 to --

2 BY MR. ROHNER:

3 Q Well, let me ask you a slightly different

4 question, then, that hopefully will not create that

5 risk.

6 What's your understanding of what the

7 allegations in the Complaint were in Universal Life

8 Church Monastery Storehouse versus American Marriage

9 Ministries?

10 A So as I recall, the allegations related to

11 defamation and trademark infringement. The plaintiff

12 accused the defendant and the defendant counterclaimed

13 that the parties' trade names and trademarks were being

14 used in online advertising.

15 Q And which party was seeking corrective

16 advertising damages?

17 A The plaintiff.

18 Q And were you hired on behalf of the plaintiff

19 or the defendant?

20 A The defendant.

21 Q Okay. In Universal Life, were there any

22 allegations of deceptive sales practices?

23 A I don't recall.

24 Q In Universal Life, were there any allegations

25 related to door-to-door sales?

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1 A No.

2 Q If you know, have any -- has any testimony or

3 opinions related to corrective advertising been excluded

4 by the Court in Universal Life?

5 A I don't know one way or the other.

6 Q And what was the form of corrective

7 advertising that was being asked for as a remedy in

8 Universal Life?

9 A Stretching my recollection here. Don't hold

10 me to this, but I think it involved an email campaign

11 and search -- Google ads campaign, search -- internet

12 search ads.

13 Q And was it your opinion that the campaign

14 being requested was unreasonable in that case?

15 A In that case, I -- it didn't -- it hasn't

16 progressed to the point where I have formalized an

17 opinion on damages at this point.

18 Q Okay. It's not a case where you submitted a

19 report yet?

20 A Correct. I was deposed, but I didn't submit a

21 report.

22 Q Okay. And in your deposition, you did not

23 express an opinion as to the reasonableness of the

24 request for corrective advertising?

25 A That's correct.

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1 Q Did the other side, did the plaintiff, submit

2 an expert report supporting a claim for corrective

3 advertising?

4 A I don't recall.

5 Q The next case you mentioned was Stockdale. I

6 believe that was on the same page.

7 A Yeah. It's at the bottom.

8 Q Yeah. It's at the bottom there. Okay.

9 Stockdale Investment Group versus Stockdale Capital

10 Partners. You testified in 2019. What can you tell me

11 factually about that case?

12 A The plaintiff claimed trademark infringement

13 and confusion. The case involved two real estate

14 companies.

15 Q Were there any allegations of deceptive sales

16 practices?

17 A I don't recall one way or the other.

18 Q Were there any allegations related to

19 door-to-door sales?

20 A No.

21 Q Who -- was it the plaintiff seeking corrective

22 advertising damages?

23 A Yes.

24 Q And did you provide an opinion as to the

25 appropriateness or reasonableness of the requested

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1 corrective advertising damages?

2 A I guess that was an element of my opinion,

3 yes.

4 Q Okay. And what was your opinion with respect

5 to whether corrective advertising damages were

6 appropriate or reasonable in that case?

7 A Going off memory, so it may not be completely

8 accurate, but as I recall, my opinion involved something

9 like, you know, the plaintiff was not able to establish

10 any confusion and therefore is not able to establish any

11 harm and that, therefore, any mechanism of economic

12 damages was unnecessary.

13 Q Did you give an opinion in that case as to

14 whether or not there was actual confusion?

15 A Yes.

16 Q And what was your opinion with respect to

17 whether or not there was actual confusion?

18 A You know, like I just said, the plaintiff was

19 unable to establish any confusion.

20 Q It says you provided deposition testimony and

21 an expert report. Has that case gone to trial yet?

22 A Yes. It did go to trial.

23 Q Okay. Did you testify at trial?

24 A No.

25 Q Was any aspect of your opinion that was

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1 expressed either in your report or in your deposition

2 testimony excluded by the Court?

3 A No.

4 Q Do you know if at trial, evidence was

5 presented related to corrective advertising?

6 A No.

7 Q Do you know if the Court excluded in that case

8 any evidence or opinion testimony related to corrective

9 advertising?

10 A I do not know.

11 Q Okay. Was there a reason you didn't testify

12 at trial?

13 A Yes.

14 Q What was the reason?

15 A The plaintiff dropped the case after

16 presenting their evidence, so the defendant never called

17 witnesses.

18 Q Got it.

19 A There's probably a more legal way to say that,

20 but that's what it sounded like to me.

21 Q Okay. The next case you mentioned was Mission

22 Healthcare. Let me see if I can find that one. Yeah,

23 there it is. On page 27, do you see that? It's Mission

24 Healthcare Services versus Bridge Home Health & Hospice.

25 A Yes.

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1 Q This is a 2018 case. Let's see. Okay.

2 What can you tell me factually about the

3 Mission Healthcare Service case?

4 A Well, as I recall, it was a case involving two

5 home health service providers where employees of the

6 plaintiff left and started a competing company which led

7 to a lawsuit for whatever reason. There was --

8 obviously, I was engaged by the plaintiff. I don't know

9 if that's obvious. I've underlined the party who

10 engaged me in each of these cases.

11 Q I just started to figure that out. I

12 appreciate it.

13 A Sometimes people ask about that, so I just

14 want to -- let's see. Yeah. So plaintiff engaged me to

15 calculate damages. You know, under a number of damages

16 theories. One of the theories I considered in

17 conducting my analysis was a corrective advertising

18 calculation, but I did not present that as one of my

19 opinions. And I believe the Bridge Home Health filed a

20 counterclaim and did seek corrective advertising, but

21 the case did not progress to the point where I offered

22 an opinion. I had started to do the analysis reviewing

23 that calculation, but then they resolved the case.

24 Q Got it.

25 The next case you mentioned was Eagle Rock

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1 Resort. Let me find that one. Oh, there. It's on the

2 same page. Eagle Rock Resort versus Janet Carlin.

3 In Eagle Rock, you also represented the

4 plaintiff again; is that right?

5 A Yes.

6 Q Okay. What can you tell me factually were the

7 allegations in Eagle Rock Resort?

8 A That was, as I recall and from the notes on

9 this page, that was primarily a disparagement and

10 defamation case. The plaintiff owned a resort property,

11 and some of the residents at the resort property were,

12 well, posting allegedly untrue statements about the

13 resort.

14 Q Your CV says that you prepared a report

15 regarding the impact of the disparaging and defamatory

16 statements and economic damages in that case. Did your

17 report include any assessment or description of

18 potential corrective advertising damages?

19 A As I recall, my report proposed a corrective

20 advertising remedy or outlined how it could be done, but

21 I lacked the data at the time my report was submitted to

22 do an actual calculation.

23 Q When you say you lacked the data to do a

24 calculation, are you referring to do a calculation

25 regarding what the corrective advertising would actually

Page 28

1 cost?

2 A Correct.

3 Q Okay. Was it your opinion in that Eagle Rock

4 Resort case that corrective advertising would be an

5 appropriate measure of damages?

6 A I think the opinion, as I recall, had -- were

7 to do with that it could rather than it would -- that

8 it -- you know, without being able to finalize the

9 calculation, I couldn't offer a final opinion that it

10 was an appropriate remedy.

11 Q Well, let me ask you this: So you mentioned

12 that it could have -- I think you testified that your

13 opinion was that it could be an appropriate remedy but

14 you were unable to put a dollar value on that remedy

15 would be.

16 Is that fair?

17 MR. BROWN: Object to form.

18 THE WITNESS: Yeah. More or less, I think

19 that's kind of what I said.

20 BY MR. ROHNER:

21 Q Okay. Did you give any -- well, take a step

22 back.

23 Did that case involve any issues with customer

24 confusion?

25 A Not that I recall, no.

Page 29

1 Q Okay. You described it as being -- as

2 folks -- that there was allegations that people had

3 placed defamatory and disparaging information out to the

4 public?

5 A Yes.

6 Q And the corrective advertising that you

7 proposed was designed to remedy the -- what was alleged

8 to be the false and disparaging information?

9 A Yes.

10 Q And in that case, was it your opinion that

11 taking action to remedy false information could be an

12 appropriate measure of damages in that type of case?

13 A Yes.

14 Q What was -- what was the information that you

15 were missing in the Eagle Rock Resort case that

16 prevented you from calculating what it would cost to

17 perform the corrective advertising campaign?

18 A Well, as I recall, the defendant was, I guess,

19 either unwilling or unable to provide information and

20 data about the reach of the comments that they had made.

21 And by "reach," I mean how many people the messages had

22 been sent to and how many people had seen or read the

23 messages.

24 Q Did your opinion identify alternatives to

25 corrective advertising damages that were necessitated by

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1 the lack of information regarding, as you described it,

2 the reach of the disparaging comments?

3 MR. BROWN: Object to form.

4 THE WITNESS: Yeah. As I recall, I also

5 provided an economic damages calculation based on

6 plaintiff's lost profits.

7 BY MR. ROHNER:

8 Q Now, had you had the information related to --

9 that you say you needed to do a calculation of what it

10 would have cost for corrective marketing, in your

11 opinion, would the plaintiff in that case have been

12 entitled to both measures of damages?

13 MR. BROWN: Object to form. Improper

14 hypothetical. You can answer, if you can answer.

15 THE WITNESS: You know, I don't recall if I

16 suggested an additive or two alternative calculations

17 because the analysis was somewhat incomplete due to

18 limited information and I didn't have the ability to

19 reconcile or compare two different measures, but, you

20 know, even in that particular case, you know, if the two

21 measures represented some amount of windfall for the

22 plaintiff, you know, I would have definitely had the

23 opinion that, you know, these are two alternative

24 measures to correct the harm. But because I couldn't

25 complete the math, so to speak, I don't think my opinion

Page 31

1 got that far where I was reconciling two different

2 measures.

3 BY MR. ROHNER:

4 Q And, again, the math you're referring to was

5 the math required for you to determine how much it would

6 cost to perform the corrective advertising campaign to

7 remedy the allegedly false and disparaging comments;

8 correct?

9 MR. BROWN: Object to form. Misstates

10 testimony.

11 THE WITNESS: Sorry, Josh.

12 I believe the answer to your question is yes.

13 BY MR. ROHNER:

14 Q In that case, did you identify any other basis

15 for concluding that correct -- other than the lack of

16 data to calculate the cost, was there any other basis

17 for not seeking corrective advertising damages?

18 MR. BROWN: Object to form.

19 THE WITNESS: Yeah. A little hard to answer

20 your question. I guess, I mean, it wasn't my opinion of

21 what type of damages they should be seeking. I was

22 there to provide a quantitative measure of economic

23 damages, and I approached that task by exploring

24 different damages calculation methodologies.

25 ///

Page 32

1 BY MR. ROHNER:

2 Q And you understand one accepted damages

3 calculation methodology is corrective advertising?

4 A Yeah. Well, I guess, let me phrase it this

5 way: I mean, I understand that corrective advertising

6 is an accepted measure of damages or has been an

7 accepted measure of damages in some cases.

8 Q Okay. This case was -- we were just referring

9 to, the Eagle Rock Resort case, was a defamation and

10 disparagement case; correct?

11 A Yes.

12 Q And you also understand that corrective

13 advertising has been considered an accepted measure of

14 damages in Lanham Act cases; correct?

15 A Yes.

16 Q Okay. And I appreciate that as we go deeper

17 in this list, we may be getting farther and farther away

18 from your ability to recall, but I'm still going to

19 point your attention to the last case you mentioned

20 which was the Sun -- Solar Sun Rings. And I saw that

21 that's, what, five years ago, but let's see what you

22 remember about that.

23 Solar Sun Rings, Inc. versus Secard Pools, et

24 al. You were representing the plaintiff in that case;

25 correct?

Page 33

1 A Yes.

2 Q And that was a Lanham Act case; right?

3 A Yes.

4 Q What do you remember about the factual

5 allegations in Solar Sun Rings?

6 A That the case involved use of trademark and

7 trade names on these plastic inflatable devices that

8 you'd put on top of your pool to keep the heat in your

9 pool.

10 Q And the plaintiff was alleging that the

11 defendant was infringing on those trademarks and trade

12 names?

13 A Yes.

14 Q Were there any allegations of deceptive sales

15 practices?

16 A I can't recall.

17 Q Were there any allegations related to

18 door-to-door sales?

19 A No.

20 Q I believe your CV indicates that you provided

21 expert testimony and an expert report; is that right?

22 A Yes.

23 Q Okay. What do you remember about your opinion

24 in that case as it relates to corrective advertising?

25 A I remember it was one of the remedies I

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1 considered as a measure of economic damages. I don't

2 recall if I developed the calculation or provided an

3 explanation why it was not a reasonable measure for that

4 case, but I do recall that my damages opinion, I guess,

5 focused on plaintiff's lost profits rather than

6 alternative measures of damages.

7 Q But sitting here today, you don't know whether

8 you offered an opinion as to whether corrective

9 marketing was a reasonable or appropriate measure of

10 damages in that case?

11 A No. I mean, like I just said, as I recall, I

12 think I opined that it was not a reasonable measure.

13 Q Okay. And you believe that was included in

14 your report?

15 A I think so, but it's been a while.

16 Q Yeah. And do you have any recollection as to

17 whether you testified at your deposition regarding

18 corrective advertising?

19 A Yeah, I don't remember the deposition

20 testimony.

21 Q Did you testify at trial in that case?

22 A There was no trial in that case, as far as I

23 recall.

24 Q Sitting here today, do you recall any case

25 where you provided an opinion that corrective marketing

Page 35

1 damages was an appropriate and reasonable measure of

2 damages in a case?

3 MR. BROWN: Let me just interject. Dan,

4 you're using the term "corrective marketing" now.

5 Before you were using "corrective advertising." Is

6 there a distinction there?

7 MR. ROHNER: I didn't intend there to be one,

8 so why don't I ask the question again because you're

9 right. I've been saying "advertising."

10 BY MR. ROHNER:

11 Q First off, let me ask a prefatory question

12 just to clear up my mistake. Apparently, I said both

13 "corrective advertising" and "corrective marketing."

14 Based on your experience, do you understand that there's

15 any distinction between those two terms or concepts?

16 A I'm not aware of any distinction. You know,

17 to be honest, I haven't heard the term "corrective

18 marketing." I typically see or hear the term

19 "corrective advertising." But, you know, I probably

20 overstepped and just assumed you meant the same concept.

21 Q Right. Well, I did, but let me ask the

22 question again so the record's clear.

23 Sitting here today, are you aware of any case

24 where you have been of the -- any case where you've been

25 an expert where you were of the opinion that corrective

Page 36

1 advertising damages were appropriate and reasonable?

2 A I cannot. In the cases that we've discussed,

3 it was a methodology I considered, but to my

4 recollection, you know, other measures of damages were

5 more appropriate in those cases that we discussed.

6 Q Have you written any articles related to

7 corrective advertising damages?

8 A I don't think so.

9 Q Have you made any presentations related to

10 corrective advertise -- outside of your testimony as an

11 expert, have you made any presentations related to

12 corrective advertising?

13 A I mean, it's a topic that has been an element

14 of presentations I've given about trademark and

15 defamation damages, but it has not been the sole topic

16 of any presentation I recall giving.

17 Q Okay. There's -- on page -- there's a listing

18 starting on page 30 of your report of publications and

19 presentations. I'd like you, if you would, to look down

20 those listings and see if you can identify any of those

21 publications or presentations where corrective

22 advertising was a portion of either the publication or

23 the presentation. And I can scroll down as needed.

24 A I mean, again, it's never the primary topic of

25 the conversations or the presentations, but on the page

Page 37

1 you have, there was two -- two presentations in 2019,

2 "Internet Tools for Intellectual Property Analysis," and

3 "Investigating Online IP Infringement and Calculating

4 Damages." I mean, those presentations would have at

5 least in a cursory way mentioned corrective advertising

6 as a mechanism for calculating damages.

7 Q Do you know for either of those presentations

8 whether there were materials that are available that

9 would show the aspect of the presentation that related

10 to corrective advertising?

11 A Do I know if they're available? I'd have --

12 I'd have to look.

13 Q Do you have materials reflecting the

14 presentation -- those two presentations that you just

15 identified?

16 A They're probably on our company's -- in our

17 company's files.

18 Q Okay. If you want to scroll down or I can

19 scroll down here. That's where we left off. Do you see

20 any publications or presentations where the issue of

21 corrective --

22 A You know, I don't recall if it was or was not,

23 but based on the topic, the second one from the top with

24 the "Employing Internet and Social Media Analytical

25 Tools in Valuation and Damages," you know, without

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1 specific recollection, the nature of that topic can

2 cover corrective advertising.

3 Q And sitting here today, do you have a specific

4 recollection that it did?

5 A A fifty-fifty recollection. So it likely did,

6 I guess.

7 Q All right. I'm going to scroll down. Okay.

8 Just three more on the last page.

9 A Yeah. None of those ones. And those were a

10 pretty long time ago.

11 Q Okay. I wanted to go back to the case we were

12 talking about, the prior case where you didn't have the

13 inputs, the data necessary to compute what the cost

14 would be and that -- you said that related to the reach

15 of the disparaging or defamatory comments.

16 Do you recall that?

17 A Yes.

18 MR. BROWN: Object to form.

19 BY MR. ROHNER:

20 Q Besides the data related to the reach, was

21 there anything else you were missing that would have

22 allowed you to calculate the cost of corrective

23 advertising in that case?

24 A Not that I recall, no.

25 Q Thanks for going through all that with me,

Page 39

1 Mr. Buss. I know that it's a lot of old cases.

2 So I wanted to go back using -- since we have

3 your report open, I want to talk a little bit about your

4 education and the certifications that you list here.

5 I believe you should have in front of you

6 page 30 of your report which reflects your education,

7 certification, background, and your employment

8 experience.

9 Do you see that?

10 A I do see that.

11 MR. BROWN: Let me just object to form. This

12 is -- you kind of have a habit, Dan, of saying what the

13 document says, and then it's not clear whether you're

14 asking him to verify that or not or whether you're going

15 to ask him a question about it. But I just want to

16 point that out. If you want him to verify what's on the

17 page, then ask him that. But your statement of what's

18 on the page is not testimony.

19 MR. ROHNER: Understood. I was just making

20 sure we're looking at the same page, Josh.

21 MR. BROWN: Okay. That's great.

22 MR. ROHNER: I'm sure if I say something

23 incorrect about his education, he will let me know.

24 BY MR. ROHNER:

25 Q Do you see on page 30 where it says "Education

Page 40

1 and Certification"?

2 A I do.

3 Q Okay. This reflects -- it references

4 Claremont McKenna College, bachelor of arts in biology

5 and economics, 1993.

6 Do you see that?

7 A Yes.

8 Q Did you, while at Claremont McKenna, take any

9 classes in marketing or advertising?

10 A You know, that's almost 30 years ago. I

11 recall a marketing class, yes.

12 Q And then you went and got -- looks like you

13 got your MBA in 2011; is that right?

14 A That's correct.

15 Q What was -- did you have a focus or a -- or a

16 specialty as part of your receiving your master's in

17 business administration?

18 A No.

19 Q Did you take any marketing classes for your

20 MBA?

21 A Yes.

22 Q What marketing classes did you take?

23 A You know, I don't remember the exact titles,

24 but there was definitely several courses in, you know,

25 marketing management, branding, advertising,

Page 41

1 entrepreneurship which includes a lot of marketing and

2 promotion.

3 Q Did you take any classes specific to

4 advertising?

5 A You know, one of the professors, as I recall,

6 was kind of a published specialist in advertising and

7 branding, so there was definitely an emphasis on, I

8 guess you could call it "advertising management," you

9 know, the measuring and metrics of advertising

10 effectiveness.

11 Q Have you ever taught any classes on -- related

12 to marketing?

13 A No.

14 Q Have you ever taught any classes related to

15 advertising?

16 A No.

17 Q Have you ever written any articles specific to

18 marketing?

19 A No.

20 Q Have you ever written any articles specific to

21 advertising?

22 A No.

23 Q Prior to this case and I believe you mentioned

24 that there's a case that you're involved in between ADT

25 and Vivint, do you have any experience with the home

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1 security industry?

2 A Not that I recall.

3 Q Prior to this case and the case where you're

4 representing Vivint with ADT, did you have any

5 experiences with or interactions with Vivint?

6 A No.

7 Q Okay. I'm going to direct your attention

8 to -- I'm going to scroll in the report here, but it's

9 the last couple pages of your actual report as opposed

10 to the -- well, actually, let me take a step back. I'm

11 going to ask you some general questions about how your

12 report is structured and how -- so I make sure I

13 understand the different sections in it, Mr. Buss.

14 You may recall that there are a number of

15 headings with subheadings that reference summaries and

16 then -- and then heading at the end that's called

17 "Opinions." So the first thing I'm going to ask you

18 about is these last two pages, page 21 and 22. So I'm

19 putting it up -- hopefully you can see that. On your

20 screen, do you see the heading that says "Opinions"?

21 A I do, yes.

22 Q And all the way down to your signature?

23 A Yes.

24 Q Okay. First question is: Is that your

25 signature on page 22 of the report?

Page 43

1 A Yes.

2 Q Okay. And also, just to kind of go back and

3 confirm, the report that we've been looking at with my

4 share screen and the report that was emailed to you,

5 both of which are marked as Exhibit 1, is that in fact a

6 true and correct copy of your report that you issued in

7 this case?

8 A Well, from the pages I've seen, I believe it

9 is, yes.

10 Q So directing your attention to this -- these

11 last two pages where the heading says "Opinions," below

12 that are five bullet points.

13 Do you see that?

14 A I do.

15 Q Okay. Other than these listed bullet points,

16 do you have any other opinions that you intend to offer

17 in support of CPI's defenses in this case?

18 MR. BROWN: Object to form. And I think you

19 mean Vivint.

20 MR. ROHNER: Sorry. Yes. Let me restate

21 that.

22 BY MR. ROHNER:

23 Q Other than the five bullet points on page 21

24 and 22, do you have any other opinions you intend to

25 offer in support of Vivint's defenses in this case?

Page 44

1 MR. BROWN: Object to form.

2 THE WITNESS: You know, at this point, those

3 are the result of my review of the information and

4 documents I've seen, so, you know, those would at least

5 form the crux of any opinions I would offer. I might in

6 the future, obviously, be asked to review additional

7 information or, you know, build on these opinions or

8 provide other opinions.

9 BY MR. ROHNER:

10 Q Leaving aside what you might do in the future,

11 based on additional information, sitting here today, are

12 you aware of any other opinions you intend to offer in

13 this case?

14 MR. BROWN: Object to form.

15 THE WITNESS: Go ahead. Sorry. Was someone

16 saying something?

17 MR. BROWN: I just said, "Object to form." Go

18 ahead.

19 THE WITNESS: Nothing comes to mind at the

20 moment.

21 BY MR. ROHNER:

22 Q Okay. Why don't we -- I want to start with

23 this first bullet point, make sure I understand it.

24 You state "Neither the Winer report nor the

25 Mangum report provides either a measurement or

Page 45

1 calculation of actual harm suffered by CPI, or a

2 measurement or calculation of additional benefits

3 achieved by the defendants."

4 So my first question as to that, what I just

5 read to you, is that your opinion or is that an

6 observation of those two reports?

7 MR. BROWN: Object to form.

8 THE WITNESS: I mean, I guess that's a

9 terminology thing. I mean, that is -- that is my

10 observation for those two reports, and that observation

11 forms the basis for the opinion that is stated in the

12 full text of that bullet.

13 BY MR. ROHNER:

14 Q Okay.

15 A I guess and informs other analyses and

16 opinions in this report.

17 Q Can the costs of corrective advertising be a

18 measure of actual harm suffered by a party in a case?

19 A Well, the very nature of the calculation is

20 more of a remedy intended to repair the harm as opposed

21 to a measure of the actual harm. I think it can be a --

22 you know, it can be a reasonable amount that is

23 equivalent to the harm because damages as a remedy --

24 economic damages as a remedy is intended to repair the

25 harm. And if the circumstances support using corrective

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1 advertising to repair the harm, then it can be not

2 necessarily a measurement of the actual harm but a

3 measure of a remedy to repair the harm.

4 Q I want to make sure I understand that.

5 Explain to me, based on your understanding, what the

6 difference is between actual harm versus what it would

7 cost to repair harm.

8 A Well, you know, what comes to mind is that

9 measuring actual harm is a bit backward-looking or it is

10 backward-looking. You're measuring an impact of

11 something that has happened in the past. Now, there are

12 circumstances where the actual harm could be expected to

13 continue into the future, but that's an element of the

14 damages calculation as opposed to a measure or

15 calculation of the actual harm that has occurred.

16 And corrective advertising is the calculation

17 of the cost that would be required to do something in

18 the future; right? The concept of the calculation is

19 what it would cost today or in the near future to

20 address the harm.

21 Q Why isn't the costs that would be needed to

22 correct the harm not also a measure of the underlying

23 harm?

24 A Well, I think I just explained that. I mean,

25 you're looking at things from a different time period.

Page 47

1 Q So if a -- as an example, in this case, we're

2 dealing with alleged brand damage; correct?

3 A I'm not sure.

4 Q Okay. There are allegations that the

5 plaintiff has made that their brand has been damaged by

6 conduct by Vivint; correct?

7 A Yeah. As I recall, that sounds like some of

8 the allegations that I saw in the Complaint.

9 Q Okay. You have reviewed the Complaint;

10 correct?

11 A Yes.

12 Q And you factored in the allegations of

13 wrongdoing by Vivint in the analysis that you did for

14 your expert report; correct?

15 MR. BROWN: Object to form.

16 THE WITNESS: Yes. I mean, that is one of the

17 documents I considered.

18 BY MR. ROHNER:

19 Q Okay. If a brand has been damaged, isn't it

20 true that the cost to repair that damage can be a proper

21 measure of damages to remedy the harm?

22 A Yeah. I guess, you know -- let me -- I guess

23 we've got a little bit of a terminology thing and you're

24 using terms that I might use differently. So the

25 corrective advertising remedy is intended to repair the

Page 48

1 harm or return the harmed party to the same position

2 they were before the harm. So the numerical amount that

3 is the result of the calculation can be equivalent to

4 the actual harm that was suffered, but it isn't

5 necessarily a direct measure of the harm suffered. It's

6 a remedy -- it's the calculation, you know, of the time,

7 effort, and expense to return the plaintiff to their

8 original position or not necessarily the plaintiff but

9 the alleging party, whoever it is.

10 Q Well, let me ask you this: Aren't all damages

11 designed to return the harmed party to the position they

12 would have been in but for the conduct of the defendant?

13 A Yeah. That's my understanding of the purpose

14 or the context of an economic damages calculation.

15 Q Okay. And isn't it true that corrective

16 advertising damages are designed to return the party to

17 the position they would have been but for the wrongful

18 conduct of the defendant?

19 A Yeah. I agree with that more or less.

20 Q So I'm trying, then, to understand what you

21 view as the difference between providing money damages

22 for corrective advertising to return a party to the

23 position they would have been but for the wrongful

24 conduct, versus some other payment in the form of

25 damages that is designed to return the party to the same

Page 49

1 position they would have been but for the wrongful

2 conduct.

3 What's the difference?

4 A Well, so the opinion I'm offering here is that

5 there has not -- I have not seen in this case anyone

6 provide a measure of how or when CPI was harmed. Now,

7 there is a calculation of corrective advertising that

8 appears to presume that there's been some harm, but

9 there's been no measure of lost customers or lost

10 revenue or lost profits suffered by CPI.

11 Q So one measure of harm could be proof of lost

12 profits; correct?

13 A Yes.

14 Q And one measure of harm could be -- well, let

15 me take a step back.

16 One measure of harm could be the cost for

17 corrective advertising to put the harmed party in the

18 position they would have been but for the wrongful

19 conduct; isn't that right?

20 A I mean, I don't disagree with you, but I think

21 we're kind of mixing terms up here. So my observation

22 is that neither the Winer report nor the Mangum report

23 have made an effort or provided an analysis that

24 indicates how and when CPI was harmed.

25 Now, the Winer report proposes a corrective

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1 advertising calculation in an attempt to repair a harm

2 that hasn't been established or quantified.

3 Q Let's break that down a little bit. So you

4 understand that the jury will make the determination as

5 to whether or not CPI has been harmed; isn't that right?

6 MR. BROWN: Object to form.

7 THE WITNESS: Yes.

8 BY MR. ROHNER:

9 Q And if the jury determines that CPI was

10 harmed, isn't it true that corrective advertising is one

11 of many acceptable methods to calculate the value of

12 that harm?

13 MR. BROWN: Object to form.

14 THE WITNESS: Yeah, I don't disagree with you

15 in theory. I think you've stated the rules and the

16 purpose of the calculation correctly.

17 BY MR. ROHNER:

18 Q So is it your testimony that in order to

19 present an opinion in support of corrective advertising,

20 that there must first be a determination of liability by

21 the jury?

22 A Well, yeah. I mean, I guess if the jury finds

23 that the defendant is not liable, then there would be no

24 need for any form of a damages calculation.

25 Q Correct.

Page 51

1 And if the jury determines that the defendant

2 is liable, then the question becomes: Is corrective

3 advertising an appropriate measure of those damages;

4 isn't that right?

5 A That sounds fair. Yeah. The jury can decide

6 if corrective advertising is an appropriate remedy.

7 Q So if the jury in this case decides that CPI's

8 brand was harmed by wrongful conduct by Vivint, can

9 corrective advertising be an appropriate remedy?

10 MR. BROWN: Object to form.

11 THE WITNESS: It can, yes.

12 BY MR. ROHNER:

13 Q Okay. If the jury finds that CPI was harmed

14 by the conduct of Vivint, is it your opinion that

15 corrective advertising is not an appropriate remedy in

16 this case?

17 MR. BROWN: Object to form.

18 THE WITNESS: I don't think I've written that

19 in my report. I think what I've said is the corrective

20 advertising as presented in the Winer report would not

21 be a reasonable remedy in this case.

22 BY MR. ROHNER:

23 Q Okay. So as I'm -- we were talking about this

24 first bullet point. I want to make sure I understand

25 your position.

Page 52

1 First, you're of the opinion that there's not

2 information in the reports of Mr. Mangum and Mr. Winer

3 to support, in your view, a determination of liability;

4 correct?

5 MR. BROWN: Object to form. Mischaracterizes

6 witness's testimony.

7 THE WITNESS: Yeah. I don't see in the Winer

8 report or the Mangum report a measurement of actual

9 harm, so I'm not -- from those two documents, it's

10 unclear that the plaintiff has established that there

11 was a harm. And so as the -- as written in my report

12 there, it says "therefore a calculation of actual

13 damages may be unnecessary."

14 BY MR. ROHNER:

15 Q Right. But that -- that last opinion that a

16 calculation of actual damages may be unnecessary is

17 dependent upon, ultimately, whether the jury determines

18 that CPI -- whether CPI was harmed by the conduct of

19 Vivint; isn't that right?

20 MR. BROWN: Object to form.

21 THE WITNESS: Sure. Yeah. My opinion is

22 limited to, "Hey, I don't see it in those two reports."

23 BY MR. ROHNER:

24 Q Got it. Do you know if Mr. Winer was asked to

25 opine on the liability of Vivint?

Page 53

1 A I don't know.

2 MR. BROWN: Object to form.

3 THE WITNESS: I don't know what he was asked.

4 I mean, I don't know what he was asked to do, but, you

5 know, as I recall, there's a statement describing his

6 assignment in his report.

7 BY MR. ROHNER:

8 Q And is your opinion in this first bullet point

9 dependent upon the jury making the determination that in

10 fact Vivint is not liable?

11 MR. BROWN: Object to form.

12 THE WITNESS: I don't -- I think that's not

13 what this opinion is about. I mean, this opinion is

14 that, that -- those calculations are not in either

15 report and unless there's some other evidence available

16 to show the harm, then a calculation of actual damages

17 may be unnecessary.

18 BY MR. ROHNER:

19 Q So is it your opinion that in order to -- in

20 order for corrective advertising to be reasonable, a

21 plaintiff must also prove lost profits?

22 A I don't think I've said that or implied that.

23 But that's also kind of outside -- we're still talking

24 about just this first bullet point here; right?

25 Q Correct.

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1 A Okay.

2 Q What I'm trying to drill down on is your

3 understanding of what a measurement or calculation of

4 actual harm is and when we -- when I asked you questions

5 and we were drilling down in terms of corrective

6 advertising damages versus an actual harm calculation,

7 you seemed to draw a distinction between those two

8 things. There's a difference between actual harm and

9 corrective advertising.

10 Is that your view?

11 A Yes.

12 MR. BROWN: Object to form.

13 THE WITNESS: I would say yes.

14 BY MR. ROHNER:

15 Q So --

16 A That's what I've said previously, yeah.

17 Q So it's your opinion that corrective

18 advertising is not a measure of actual harm?

19 A Yeah. You know, the way I typically see

20 corrective advertising calculated is a calculation of

21 the cost to do something in the near future as opposed

22 to a calculation of actual harm which would be something

23 more like, you know, a measurement or analysis that

24 shows a decline in financial performance or a

25 measurement that shows a change in the value of an

Page 55

1 asset.

2 Q But notwithstanding that distinction, you do

3 agree that the purpose of corrective advertising damages

4 is to place the damaged party in the same position they

5 would have been but for the wrongful conduct; correct?

6 A Yeah. I mean, obviously, if the corrective

7 advertising calculation presented a number that was far

8 greater than the harm suffered, it would be an

9 unreasonable measure of damages.

10 Q If a party's brand is damaged, is it fair for

11 them to expect to be put in the position where

12 they're -- the damage to their brand, the harm, is

13 remedied through the damages?

14 A Just struggling with how you said that

15 question. But yeah, I mean the basic purposes of

16 economic damages is to repair the harm suffered by the

17 claiming party.

18 Q Okay. So I want to make sure I understand.

19 Is it your position that there are times when the cost

20 to repair the harm is too expensive to actually repair?

21 A I don't think I said that, no.

22 Q Okay. So is it your position that the cost to

23 repair the harm can be unreasonable?

24 A I think it would be my position that a

25 calculation that presented, whether that calculation is

Page 56

1 corrective advertising or lost profits or any other

2 measure of damages, the amount calculated and presented

3 as a damages award can be unreasonable because that

4 amount is disassociated from the actual harm suffered by

5 the claiming party.

6 Q Okay. And can the actual harm suffered by the

7 claiming party -- can it be the cost to repair?

8 A Yeah. Hypothetically, the cost to repair can

9 match the actual harm. And I guess if it's a reasonable

10 damages remedy, then it should match the measure of the

11 actual harm.

12 I mean, I guess the flip side of that is if

13 the -- if the calculation of the remedy was, you know,

14 disassociated from the measure of harm, somebody would

15 be getting -- paying too much or getting a windfall or

16 getting too little and paying too little.

17 Q Okay. I'm going to go down to your next

18 bullet point which is -- and I'll read this to you.

19 "The 25 call transcripts relied upon in the Winer report

20 may not be representative of CPI's total customer

21 population, are not sufficient evidence of harm, are not

22 evidence of lost customers, and do not indicate a need

23 for a corrective advertising campaign to correct

24 potential customer confusion."

25 Did I read that correctly?

Page 57

1 A You did.

2 Q Okay. And so I want to make sure I -- you

3 have some multiple -- it looks like multiple opinions in

4 here, so I want to break it down a little to make sure

5 we're on the same page. The 25 call transcripts, those

6 are the transcripts that are referenced in Dr. Winer's

7 report; correct?

8 A Yes.

9 Q And are you assuming that the 24 call

10 transcripts are the only evidence CPI will provide of

11 improper conduct by Vivint?

12 A Well, at the time I wrote this report, those

13 were the -- that was the only evidence I was aware of.

14 I have learned since producing this report that there --

15 CPI may present additional customers.

16 Q Okay. Well, now, you reviewed Mr. --

17 Dr. Winer's report before you did your report; correct?

18 A Yes.

19 Q And you understood that Dr. Winer represented

20 in his report that there would be -- he understood that

21 there will be 25 additional customers that would testify

22 at trial or up to 25 additional customers, so you're

23 aware of that; correct?

24 MR. BROWN: Object to form.

25 THE WITNESS: I don't recall seeing that in

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1 his report, but if I did, I missed it.

2 BY MR. ROHNER:

3 Q Okay. Now, Mr. Winer also stated in his

4 report that he had reviewed a Vivint customer

5 spreadsheet that identified complaints from former CPI

6 customers along with a corresponding index identifying

7 the names and addresses of such customers.

8 Were you aware of that piece of evidence that

9 Dr. Winer reviewed?

10 A I don't recall that one specifically. I don't

11 recall seeing a Vivint spreadsheet.

12 Q Have you received any information from Vivint

13 regarding complaints made to Vivint about -- about

14 deceptive practices by Vivint sales force?

15 MR. BROWN: Object to form.

16 THE WITNESS: I don't recall seeing something

17 specific like these call transcripts, no.

18 BY MR. ROHNER:

19 Q Okay. Did you -- did you receive a review of

20 spreadsheet identifying customers of Vivint that made

21 complaints to Vivint about deceptive practices by Vivint

22 sales staff?

23 MR. BROWN: Object to form. Dan, if you have

24 a particular Bates number, seems like you're talking

25 about a particular document. If you're asking about a

Page 59

1 particular document, can you put it in front of him?

2 MR. ROHNER: Well, I don't know if I have the

3 document. I can -- it's what's referenced in

4 Dr. Winer's report. It's Vivint 1352. But my question

5 was: Has he received anything from Vivint that

6 reflected or described complaints by customers to Vivint

7 about Vivint sales force conduct?

8 So that's -- it's a broader question.

9 A Yeah. I mean, I think we -- I'd have to go

10 review the list of documents I relied on. It's been a

11 couple months or so since I looked at all this stuff.

12 And then there's also been a similar case.

13 Q Sure.

14 A I think just to avoid error, I'd prefer if we

15 could refer to something specific.

16 Q Well, let me ask you a different question: If

17 Vivint had information relevant to complaints made to

18 Vivint about deceptive practices in their sales force,

19 would that be relevant to you as to whether CPI had been

20 harmed by Vivint's conduct?

21 A It could be. I guess I would need to review

22 that information to make a full determination.

23 Q Going back to the bullet point we were just

24 talking about, you say "The 24 call transcripts relied

25 upon in the Winer report may not be representative of

Page 60

1 CPI's total customer population."

2 Correct?

3 A Yes.

4 MR. BROWN: Object to form.

5 BY MR. ROHNER:

6 Q What did you do to investigate or determine

7 whether the call transcripts referenced in the Winer

8 report were representative of CPI's total customer

9 population?

10 A Well, as I recall, it's probably described in

11 my report. You know, I looked at the information CPI

12 provided about its total customer count. I reviewed

13 CPI's website to see what types of customers they had.

14 And, you know, I inquired if there were -- if CPI had

15 recordings about customers calling for other reasons.

16 Q Did you inquire as to whether Vivint had

17 recordings of customers calling, complaining about

18 improper conduct by Vivint sales folks?

19 A You know, I don't -- I don't -- at the moment,

20 I don't recall exactly what I requested, but I recall

21 topics along that line or conversations covering that

22 topic would be a better way to say it.

23 Q Okay. You also say in this bullet point that

24 "The 24 call transcripts ... are not sufficient evidence

25 of harm."

Page 61

1 Do you see that?

2 A Yes.

3 Q Okay. Now, just to be clear, you're only

4 considering those 24 call transcripts in making the

5 determination that they're not sufficient evidence of

6 harm; correct?

7 A Yes.

8 Q You have not -- you have not -- you're not

9 aware -- well, you don't know one way or the other

10 whether CPI will present other evidence of harm besides

11 the 24 call transcripts; correct?

12 A Yeah. I mean, to the extent it has not been

13 provided to me in this case, I haven't seen it.

14 Q Okay. And you also understand that

15 ultimately, the jury will determine whether CPI has

16 presented evidence of harm; isn't that right?

17 A The jury will determine if CPI presents

18 evidence? I think, I guess -- that sounds funny. It

19 sounds like the jury will decide if CPI has been harmed,

20 not what evidence CPI would decide to provide.

21 Q That's a good answer, but let me ask a better

22 question so I get a clear record here.

23 It's your understanding that the jury will

24 make the determination as to whether the evidence

25 presented by CPI of harm actually proves harm to CPI?

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1 A Yes.

2 Q And you're not offering an opinion as to

3 whether the evidence that will ultimately present -- be

4 presented by CPI of harm is sufficient evidence of harm;

5 correct?

6 MR. BROWN: Object to form.

7 THE WITNESS: I mean, I guess as an expert, I

8 can provide my analysis and opinion of the evidence

9 provided, but it is the jury and trier of fact's role to

10 decide if harm is established or not. Now, I'm not a

11 lawyer, so I don't know the proper way to say that, but

12 that's my understanding.

13 BY MR. ROHNER:

14 Q Specific to this bullet point, your opinion,

15 again, is limited to your analysis of the 24 call

16 transcripts; right?

17 A Correct.

18 MR. BROWN: Object to form. Misstates his --

19 witness's testimony.

20 THE WITNESS: I guess, do you mind if we take

21 a break in the near future?

22 BY MR. ROHNER:

23 Q We can take a break now. That's fine.

24 A Okay.

25 Q How long do we need? You want to do 15

Page 63

1 minutes?

2 A Five minutes. Five, ten minutes is fine.

3 MR. ROHNER: Why don't we do ten so that will

4 give me more time to use the restroom.

5 THE WITNESS: Perfect.

6 MR. ROHNER: Does that work for you, Josh?

7 MR. BROWN: Yeah. So coming back at about 55

8 minutes after the hour?

9 MR. ROHNER: Sure.

10 THE VIDEOGRAPHER: We're going off the record.

11 The time is 10:46 a.m.

12 (Off the record.)

13 THE VIDEOGRAPHER: We are going on the record.

14 The time is 11:02 a.m.

15 BY MR. ROHNER:

16 Q Okay. Mr. Buss, when we broke, we were

17 talking about bullet point number 2 on page 22 which is

18 the -- under the heading "Opinions" you have in this

19 case.

20 Do you have that page in front of you again?

21 A Yeah. You have it up to the screen, so I can

22 see it.

23 Q Okay. Perfect. Great. So we were talking

24 about bullet point 2. The second sentence in bullet

25 point 2 says "Therefore, the reliance on the 24 call

Page 64

1 transcripts makes the corrective advertising opinion in

2 the Winer report an unreasonable and speculative

3 indication of economic damages for this case."

4 Do you see that?

5 A I do.

6 Q Again, and so your opinion is -- let me ask a

7 better question. You don't have an opinion as to

8 whether additional evidence of harm that might be

9 presented at trial could justify corrective advertising

10 in this case, do you?

11 A Well, I haven't -- yeah. I mean, the Winer

12 report focuses on those 24, and I haven't -- I don't

13 know what that other evidence would be, so I haven't

14 done an analysis of that other evidence.

15 Q And well, we mentioned you haven't received

16 any information from Vivint about complaints made to

17 them; correct?

18 MR. BROWN: Object to form.

19 THE WITNESS: No. I don't specifically know

20 what you're referring to. I mean, I don't recall seeing

21 any.

22 BY MR. ROHNER:

23 Q Well, let's do this: I'm going to pull up

24 Exhibit 2 which is Dr. Winer's report, and I'm going

25 to -- one second. Okay. You should see on your screen

Page 65

1 Exhibit 2 which is a copy of Dr. Winer's report.

2 A Yes.

3 Q And I'm not sure -- do you have the hard copy

4 as well or not at this point?

5 A I could get it. I don't have it with me at

6 the moment.

7 Q I don't think we need it this moment. So I'm

8 going to scroll down to page 35 of Dr. Winer's report.

9 And this is in a section where Dr. Winer is talking

10 about the geographic scope of Vivint's actions.

11 Do you see that?

12 A Okay.

13 Q This is paragraph 89. And he says "To

14 understand the scope of the problem caused by Vivint and

15 to begin the process of considering a remedy, I reviewed

16 available information about the geographic spread of

17 Vivint's actions. There are three sources of data for

18 this analysis: Number 1, a Vivint customer spreadsheet,

19 Vivint 1352.csv, that identifies complaints from former

20 CPI customers, along with the corresponding index

21 identifying the names and addresses of such customers."

22 Do you see that?

23 A Yes.

24 Q Did you review Vivint 1352, the Vivint

25 customer spreadsheet referenced in Mr. Winer's report?

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1 A Yes. But I guess we reviewed it in the

2 context of seeing -- checking the geographies, so my

3 team and I reviewed it in the context -- because that is

4 how we understood it was used in Winer's report.

5 Q But you understood that that spreadsheet was a

6 listing of complaints from former CPI customers that

7 were made to Vivint about Vivint; correct?

8 A I did not understand that, no.

9 Q Okay. So in reaching your opinion in bullet

10 point 2 that we were talking about, you did not -- you

11 don't have an opinion as to whether the information on

12 Vivint's spreadsheet 1352.csv would change your opinion

13 as to the reasonableness or appropriateness of

14 corrective advertising damages?

15 MR. BROWN: Object to form.

16 THE WITNESS: Yeah. No. My -- the opinion

17 that was the context of this conversation, that second

18 bullet point, is about the 24 call transcripts and what

19 I believe to be the Winer report's use of the 24 call

20 transcripts to establish a pattern -- a broader pattern

21 of harm and confusion.

22 BY MR. ROHNER:

23 Q And, again, you did not consider this Vivint

24 spreadsheet for that opinion; correct?

25 A Not --

Page 67

1 MR. BROWN: Object to form.

2 THE WITNESS: -- for that specific bullet

3 point, no.

4 BY MR. ROHNER:

5 Q Okay. Okay. I'm going back to the Exhibit 1.

6 Do you see Exhibit -- are we back on your report there?

7 A Yes.

8 Q Okay. Great.

9 I want to talk a bit about the next bullet

10 point. It says "The Winer report discusses various

11 brand metrics but does not appear to provide any actual

12 measurements specific to the CPI brand nor provide a

13 valuation of CPI's brand assets."

14 And just stopping there, is that an opinion or

15 is that just an observation of your review of the

16 report?

17 MR. BROWN: Object to form.

18 THE WITNESS: I mean, I guess if we're

19 classifying it in some way, that is my observation --

20 that is a summary of the observations that lead to the

21 opinion stated in that bullet.

22 BY MR. ROHNER:

23 Q Got it. So in your opinion, in order to seek

24 corrective damages, does there need to be a valuation

25 done of a brand asset?

Page 68

1 A No.

2 Q Does there need to be actual measurements

3 specific to the CPI brand? In order to justify

4 corrective advertising.

5 A No.

6 Q If that's the case, then why does the failure

7 to include that information render -- let me ask you --

8 let me take a step back. I'm getting ahead of myself.

9 I apologize. I was reading -- you have a

10 precursor to a question that's coming later. Use that

11 as you will, but I got tripped up here.

12 A I reserve the right to the fact that you're

13 confused, I might be equally confused.

14 Q Right. Right. No.

15 So this bullet point 3, you make the point

16 that there are -- that your position is "The Winer

17 report doesn't include actual measurements specific to

18 the CPI brand nor provide a valuation of CPI's brand

19 assets." And then you say, "Therefore the brand

20 commentary in the Winer report does not provide any

21 information relevant to a calculation of economic

22 damages in this Case."

23 Correct?

24 A Yes. That's what it says.

25 Q Now, is it your -- is it your position that

Page 69

1 the failure to provide actual measurements specific to

2 the CPI brand or the failure to provide a valuation of

3 CPI's brand assets precludes a calculation of economic

4 damages?

5 A No. And that's not what it says there.

6 Q Okay. What -- explain to me what's different

7 between not having those things precluding an economic

8 damages analysis versus them not being relevant to the

9 calculation of economic damages.

10 MR. BROWN: Object to form.

11 THE WITNESS: The discussion of brand metrics

12 in the Winer report is unspecific to the parties and the

13 facts in this case. And so therefore, while it is a

14 discussion of different brand measures and metrics that

15 can be developed, it doesn't provide any relevant

16 information about the alleged harm in this case and is

17 also doesn't provide any relevant information for any

18 calculation of damages.

19 BY MR. ROHNER:

20 Q Now, it does provide information as to explain

21 what brands are; correct?

22 A In general, yes.

23 Q Yeah. And it does provide information as to

24 generally how -- how brands can be valued; correct?

25 MR. BROWN: Object to form.

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1 THE WITNESS: Well, I mean, by my

2 recollection, it doesn't go much further than saying

3 brands have value. It doesn't mention the methodologies

4 or analyses used to value brands.

5 BY MR. ROHNER:

6 Q Okay. And in this case, the measure of

7 damages proposed by Dr. Winer is corrective advertising?

8 That's the term you used to describe his opinion;

9 correct?

10 A Yeah. I guess I use that term. I think -- I

11 don't know if he actually ever uses the term "corrective

12 advertising" in his report.

13 Q And so my question is, getting back to the

14 first question I asked you, does the failure to provide

15 actual measurements specific to the CPI brand or the

16 failure to provide a valuation of CPI's brand preclude

17 the awarding of -- of corrective advertising damages?

18 A I mean, like I said, not necessarily. But for

19 the corrective advertising analysis to demonstrate how

20 it's reasonable and accurate for the alleged harm, I

21 would -- I would hope that and I would think that best

22 practice is to provide some measures of brand

23 performance or strength or value that are specific to

24 the brand that claims it was harmed.

25 Q I want to direct your attention to the next

Page 71

1 bullet point you have. It says "The Corrective

2 Advertising Opinion in the Winer report is based on

3 speculative and unreasonable assumptions and therefore

4 does not provide a reasonable calculation of economic

5 damages for this Case."

6 Do you see that?

7 A I do.

8 Q And what are -- what are the speculative and

9 unreasonable assumptions that you're referring to in

10 this opinion?

11 A Well, they are discussed in the body of the

12 report.

13 Q Okay.

14 A But, I mean, did you --

15 Q We'll go -- I'll take you there. I'm not -- I

16 agree, it's not a memory test. But I think there --

17 well, I won't comment on the report. I want to -- I

18 want to make sure we're kind of talking about the same

19 things. But sitting here today, with the previse that

20 we'll look at your report and you can correct or add

21 once we look at the body of the report, what are the

22 assumptions -- unreasonable assumptions that you're

23 referencing in this bullet point --

24 A Yeah. Sure.

25 Q -- that you're aware of?

Page 72

1 A From top of mind, there's the assumption that

2 the corrective advertising or whatever the term Winer

3 uses for the remedy, there's the assumption that --

4 excuse me. I have a frog in my throat. Excuse me.

5 Sorry. There's the assumption that the campaign would

6 need to address all of CPI's current customers based on

7 the customer count provided by CPI.

8 Q Okay.

9 A There's an assumption that the -- about the

10 length of time and the salary that would be paid to the

11 personnel who would undertake the campaign.

12 Q Okay.

13 A And there are assumptions about the additional

14 costs, you know, and I can't remember how Winer coins

15 them, but he's basically used, as I recall, like,

16 25 percent of marketing costs as an additional support

17 charge in addition to the door-to-door campaign proposed

18 and outlined in the Winer report.

19 Q Okay. Anything else that you can remember

20 right now?

21 A Yeah. You know, I mean, there's analysis in

22 my report, there's a schedule where I walk through each

23 of the assumptions and show, you know, the impact of

24 alternative assumptions, so I'm sure there's others.

25 Q Okay. So each of the assumptions you've

Page 73

1 identified so far all relate to the actual computation

2 of the amount that would be required to engage in the

3 corrective advertising campaign advised by Dr. Winer; is

4 that fair?

5 A Yes.

6 MR. BROWN: Object to form.

7 BY MR. ROHNER:

8 Q With respect to this bullet point, this third

9 bullet point on page 22, are there any assumptions that

10 you believe were unreasonable with respect to

11 Dr. Winer's determination that corrective advertising

12 just as a concept is an appropriate measure of damages

13 in this case?

14 A Well, this bullet we're talking about right

15 now is focused on the form of his calculation, not the

16 rationale for his calculation.

17 Q Got it.

18 Okay. The fourth bullet point, "As the Winer

19 report does not consider alternative measures of

20 economic damages, the corrective advertising opinion

21 reaches a speculative and unreasonable conclusion based

22 entirely on one measurement approach."

23 Am I reading that correctly?

24 A Yeah. Pretty much. You had a little pause in

25 there that I wouldn't have done.

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1 Q I want to understand your opinion. Is it your

2 opinion that -- that a measure of damages become -- is

3 speculative or unreasonable simply because there may be

4 other measures of damages that exist?

5 A I think that's a jump from what I've said, but

6 I do think it is best practice as a damages analyst to

7 consider alternative measures and to at least explore

8 the -- what the alternative measure is calculating and,

9 if you get two different indications, explain why one

10 approach is more appropriate or more reasonable than the

11 other.

12 Q Okay. Do you know if Dr. Winer is an expert

13 in lost profits analysis?

14 A Do I know if he is? I don't know if he is.

15 Q Okay. Now, you understand there was another

16 expert that's been named by CPI, Dr. Mangum?

17 A Yes.

18 Q And he provided an opinion related to royalty?

19 A Yes.

20 Q Okay. And is the fact that -- well, let me

21 ask a better question here.

22 You understand that a party is not obligated

23 to utilize one expert to address all potential damage

24 computations; correct?

25 A Sure.

Page 75

1 Q Right. And if Dr. Winer is not an expert in

2 lost -- calculating lost profits, would you agree that

3 it would be inappropriate for him to opine as to what

4 those lost profits might be?

5 A I mean, I guess if he feels uncomfortable

6 reviewing other approaches to calculating damages, you

7 know, that's fine. But it is, in my opinion, based on

8 my experience as a financial analyst and a damages

9 analysis -- damages analyst and a valuation analyst,

10 that to form a reasonable conclusion about a dollar

11 amount damages award, you know, it's important for the

12 damages analyst to consider other measures.

13 Q Are you -- well, let's talk a bit about the

14 body of your report. Hold on one second.

15 The first -- I'm going to go to page 5 of your

16 report, which is -- which is a section titled

17 "Approaches to Calculating Damages."

18 Do you see that?

19 A Yes.

20 Q And I'll represent to you and I can show you

21 if you need me to -- everything before this is more your

22 description of the two reports and the case and claims

23 that are at issue. Okay? So I don't want you to feel

24 like I've -- that's what -- I'm kind of skipping ahead

25 to your -- this first section on approaching --

Page 76

1 approaches to calculating damages.

2 MR. BROWN: I'm going to -- to the extent that

3 was a question, I'm going to object to form.

4 MR. ROHNER: Sure.

5 BY MR. ROHNER:

6 Q Would you like to look at the first four pages

7 before we talk about approaches to calculating damages?

8 A No.

9 Q Okay. So halfway -- the second paragraph

10 here, you reference the Complaint and you quote from the

11 Lanham Act.

12 Do you see that?

13 A Yes.

14 Q And you're familiar generally with this

15 provision of the Lanham Act that describes damages?

16 A Yes.

17 Q Okay. And you understand that under the

18 Lanham Act, that a plaintiff can recover the defendant's

19 profits; right?

20 A Yes. Sorry. I wasn't sure you were done with

21 your question.

22 Q Sorry. That was -- correct?

23 A Yes.

24 Q Any damages sustained by the plaintiff;

25 correct?

Page 77

1 A Yes.

2 Q And the cost of the action?

3 A Yes.

4 Q And you -- because of the "and" in there, you

5 understand that those are not exclusive, those can be

6 additive; correct?

7 A Again, my understanding is it all depends on

8 the circumstances of the dispute and the opinions of the

9 trier of fact.

10 Q Correct. Right now I'm asking you what you

11 understand this section of the Lanham Act to mean. You

12 understand that with the -- with the listing of, one,

13 defendant's profits, two, any damages sustained by

14 plaintiff, and three, the cost of the action, that those

15 potential recoveries can be additive; correct?

16 MR. BROWN: Object to form.

17 THE WITNESS: Yeah. I do understand that in

18 some circumstances, they can be additive, yes.

19 BY MR. ROHNER:

20 Q Right. And you're not giving an opinion as to

21 what kind of remedies are permissible under the Lanham

22 Act; right?

23 MR. BROWN: Object to form.

24 (Reporter clarification.)

25 THE WITNESS: My answer was "no."

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1 BY MR. ROHNER:

2 Q Okay. Scrolling down a little bit here, on

3 the top paragraph of page 6, you say, "I understand if a

4 plaintiff is unable to provide a reasonable measure of

5 when, how and if it was harmed any award of economic

6 damages result in a -- would result in a windfall or

7 unforeseen gain for the plaintiff."

8 Do you see that?

9 A Yes. And sorry. There's a helicopter outside

10 my office, and so I'm having trouble hearing you a bit.

11 But I think you just basically read the sentence.

12 Q I did. We can wait a minute. Is it -- does

13 it sound like it's leaving?

14 A I hope so.

15 Q Yes. I read that first sentence of

16 paragraph 2.

17 A Okay.

18 Q And so my question is what -- you say "I

19 understand." What's that understanding based on?

20 A You know, my experience doing damages

21 calculations and working as a litigation consultant,

22 that also comes from, you know, the materials on damages

23 that I've read over the years, and that also comes from

24 discussions with the counsel that retained me in this

25 case.

Page 79

1 Q Right. And your understanding is -- what

2 you're describing there is a legal requirement in order

3 for a party to be awarded economic damages; correct?

4 MR. BROWN: Object to form.

5 THE WITNESS: Yeah. More or less, I

6 understand that that -- you know, that's not the damages

7 analyst's determination, but that's more a legal -- I

8 don't know. That's been established practice in law or

9 something like that.

10 BY MR. ROHNER:

11 Q You're not giving that as an opinion in this

12 case?

13 A No. No.

14 Q Okay. The next line says, "Therefore, in this

15 case, the plaintiff should provide a measurement of its

16 alleged harm for a calculation of damages to be

17 reasonable."

18 Do you see that?

19 A Yes.

20 Q And a measurement of alleged harm could be the

21 calculation of damages; isn't that true?

22 A Well --

23 MR. BROWN: Object to form.

24 THE WITNESS: -- I guess we talked about this

25 quite a bit previously. I mean, I understand that's --

Page 80

1 that's the plaintiff's position. You know, based on

2 what I've seen in this case, I'm not sure it's an

3 appropriate measure of the alleged harm because the

4 alleged harm, you know, happened in the past and the

5 corrective advertising or corrective marketing or

6 whatever we're calling it campaign is kind of

7 forward-looking. And I don't think that -- that

8 anything I've seen from the plaintiff's experts has

9 measured or analyzed how CPI suffered because of what

10 they allege in this case.

11 BY MR. ROHNER:

12 Q But you also understand that the jury is going

13 to make that determination as to whether and how CPI

14 suffered; isn't that right?

15 A Oh, of course.

16 Q Yeah.

17 (Reporter clarification.)

18 MR. BROWN: I meant to say object to form.

19 Mr. Buss, if you could pause a little bit,

20 give me that chance, I would appreciate it.

21 THE WITNESS: Yeah. Thank you. Thanks for

22 the reminder.

23 BY MR. ROHNER:

24 Q Going down to the next section, you say

25 "Neither Expert" -- this is a heading -- "Neither Expert

Page 81

1 Report Reviews Actual Financial Performance."

2 Do you see that?

3 A Yes. Well, I did. You just --

4 Q Sorry.

5 A I got it. Yeah. It's back now.

6 Q Okay. I apologize for moving while you're

7 reading.

8 First, is it your opinion that in order to

9 award -- in order for corrective advertising damages to

10 be reasonable or appropriate, that there needs to be a

11 review of actual financial performance of a company?

12 A I think you used the term "needs," and I'm not

13 saying it's, you know, a necessary requirement. We'll

14 let the, you know, jury and trier of fact determine what

15 was needed. But I think it would be relevant for the

16 calculations presented by -- especially the Winer report

17 in this case based on the information that I reviewed.

18 Q Okay. Why do you think it would be relevant,

19 the financial performance of CPI?

20 A Well, because I -- from the data provided by

21 CPI, I see no indication that they have experienced a

22 decline in financial performance.

23 Q Is it your opinion that in order for there to

24 be a need for corrective advertising, the financial

25 statements of a company need to reflect a decline in

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1 performance?

2 A Well, that would be one place I would look.

3 You know, if the -- if the party that claims they were

4 harmed can show that they expected to achieve a greater

5 level of performance and then didn't achieve that

6 expected level of performance, that might be another

7 place to look.

8 But you know, as a damages analyst, you know,

9 our job is to come up with a fair and reasonable amount

10 that would remedy the harm. And it would -- you know, I

11 believe it is best practice for a damages analyst to at

12 least explore how the claiming party was harmed before

13 just proceeding to calculate a number.

14 Q And it's your opinion that that harm has to be

15 reflected in the financial statements?

16 A No. I gave you an example of how it might not

17 be reflected in the financial statements but would still

18 be reasonable.

19 Q What would be an example of a situation where

20 harm would not be reflected in the financial statements

21 but would still be reasonable?

22 A Well, the one I just told you about where

23 maybe they had an expectation of a certain level of

24 performance that wasn't achieved. But there could

25 possibly be others, but the one that jumped to mind and

Page 83

1 the one I addressed in your prior question, yeah. I

2 mean, it could be a difference between expected

3 performance and actual performance or it could be

4 reflected in the financial statements. It could be the

5 creation of a situation where future results will be

6 lower than expected and that hasn't yet been reflected

7 in the financial reports.

8 Q Okay. And you --

9 A We're all talking hypothetically here, I

10 guess, but --

11 Q Sure.

12 A -- I didn't see any of those or any analysis

13 that attempted to do any of that in the Winer report.

14 Q Hypothetically, when you're -- when anyone is

15 reviewing the financial reports of a company, you'd

16 agree that there are a multitude of factors that can

17 impact on the success or failure of a company from a

18 financial statement standpoint?

19 A Yes.

20 Q Factors, many of which the company has no

21 control over?

22 A That can be the case, yes.

23 Q And those factors can be factors that actually

24 increase their financial performance in an unexpected

25 way or decreases it in an unexpected way; correct?

Page 84

1 A Yes.

2 Q Okay. And that in the case of an allegation

3 that a party has been damaged by the, you know, improper

4 conduct of a competitor, that is something that -- that

5 damage is something that, like any other factor, could

6 be reflected in the financial statements or might not

7 be; true?

8 MR. BROWN: Object to form.

9 THE WITNESS: Sure. Yes. I think I

10 understand your question.

11 BY MR. ROHNER:

12 Q Well, and I can ask, you know, a little more

13 detailed question. You can have a situation where a

14 third party causes damage to you as a company, but at

15 the same time, because of other market factors, your

16 market share actually increases or your -- your income

17 for that year and revenue increases because of something

18 totally unrelated to the bad conduct by the third party;

19 correct?

20 MR. BROWN: Object to form. Improper

21 hypothetical.

22 THE WITNESS: Yeah. Hypothetically, yes.

23 BY MR. ROHNER:

24 Q And in that case, you know, the harm might not

25 be the -- well, wouldn't be -- if in that hypothetical,

Page 85

1 the company's revenue and profits and income increase

2 during that period of time, the harm isn't that

3 increase; the harm is the difference between that

4 increase and what it might have been but for the

5 wrongful conduct; correct?

6 MR. BROWN: Object to form.

7 THE WITNESS: Yeah. Hypothetically, yes.

8 BY MR. ROHNER:

9 Q Okay. And you would agree with me -- well,

10 let me ask you: Do you agree with me that in order to

11 parse that question out as to differentiating between

12 what a company earned and what they might have earned

13 but for the wrongful conduct would require a pretty

14 complicated analysis of a number of different factors;

15 true?

16 A Yeah. I mean, that's -- that's why we have

17 experts to do that kind of work. It's not an easy task,

18 but, you know, if the calculation of damages is

19 unrelated to an attempt to measure that specific harm,

20 then it's -- it's a speculative measure of damages.

21 Q Well, that's one of the harms; right? One of

22 the harms that you could be attempting to fix with

23 damages is that difference between your financial

24 results that you actually achieved versus what you would

25 have achieved but for the wrongful conduct?

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1 A Yeah. I mean, that kind of is a way to

2 describe the role of the damages expert is to, you know,

3 do the analysis and the measurement and the calculations

4 that are specific to the harm and eliminate those other

5 factors.

6 Q And another measure of the harm could be

7 identifying what it would cost to correct the conduct

8 that was done that harmed your company; correct?

9 MR. BROWN: Object to form. Asked and

10 answered.

11 THE WITNESS: Hypothetically, yes.

12 BY MR. ROHNER:

13 Q Now as part -- you reference the financial

14 statements of both CPI and Vivint in your report. Did

15 you do any kind of analysis of the financial statements

16 to parse out how the alleged wrongful conduct might have

17 impacted on CPI's financial results?

18 A I would say yes, although that analysis was

19 largely, you know, hindered by the lack of detail

20 provided in CPI's financial results.

21 Q Okay. Tell me, what's the additional

22 information that you would need in order to perform the

23 measurements and calculations that you -- that you state

24 in your report should have been done by Dr. Winer?

25 MR. BROWN: Object to form. Vague as to which

Page 87

1 analyses you're talking about.

2 BY MR. ROHNER:

3 Q Let me ask a better question. What's the

4 additional information you would need in terms of the

5 financial performance of CPI to perform the measurements

6 that -- and calculations of harm that your opinion is

7 Dr. Winer should have performed?

8 MR. BROWN: Object to form.

9 THE WITNESS: I mean, I can give a couple

10 examples that come to mind. Hopefully, I can get most

11 of it. I would be interested in seeing financial

12 reports for the consumer or home segment of CPI, you

13 know, distinct from their business and new home business

14 segments or any other business segments or divisions or

15 operating units that CPI has. Because I think, as you

16 know, the financial results provided to me in this case

17 for CPI were consolidated results without detail by

18 customer type or division.

19 I would be interested in seeing budgets or

20 forecasts or planning documents that were prepared in

21 the normal course of business by CPI to explore how

22 their performance differed from expectations and

23 forecasts.

24 I would want to know more detail about the

25 costs and expenses that are incurred at the different

Page 88

1 business units. In other words, what types of marketing

2 and operations and support expenses would be required to

3 maintain, you know, the consumer segment, the business

4 segment, the new home segments, and other segments.

5 I would want to know some more details about

6 the specific types of revenue generated from the

7 consumer business segment. You know, typically in this

8 security services business, there's a service element

9 and an equipment element to the revenues generated by

10 the companies, so we would need to get data and

11 information that would help me understand those two

12 types of revenue and if available for the -- you know,

13 the home or consumer segment.

14 Those are the big ones that come to mind.

15 BY MR. ROHNER:

16 Q So for the -- for the four that you mentioned,

17 explain to me how that information could be used to

18 parse the impact of the alleged wrongdoing by Vivint on

19 the financial results of the CPI?

20 MR. BROWN: Object to form. Compound.

21 THE WITNESS: Well, I think it's a little

22 artificial to break that up, just one would be able to

23 complete that -- one of the things I described would be

24 able to complete that analysis on its own.

25 You know, ideally, we would want more or most

Page 89

1 of that information that I described in order to do that

2 type of parsing that you're describing. It's also a

3 process of, you know, reviewing the marketplace and the

4 events and how -- where and when the company operated to

5 eliminate the impact of other factors.

6 You know, I mean, the big one that comes to

7 mind these days is how COVID-19 has changed business

8 performance for different types of companies. You know,

9 you would need to be able to understand and measure not

10 just how COVID-19 may have impacted their operations but

11 how, you know, any -- any negative news that came out

12 about the company might have impacted their operations.

13 So it's a multipart process, and I wouldn't

14 profess that it's easy to do, but, you know, no one said

15 our job would be easy. But, you know, without an

16 attempt to at least explore the impact of those other

17 factors, like you mentioned, there's no real way to

18 evaluate if the proposed remedy is reasonable to the

19 harm caused.

20 BY MR. ROHNER:

21 Q Just to take a step back, I mean, what you

22 describe as a multipart, sounds like, multifactor

23 analysis, pretty complicated; correct?

24 A Like I said, we don't get paid to do things

25 that are easy.

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1 Q And I'm assuming -- well, would it be fair to

2 say that in all likelihood, there are data points and

3 information that you didn't include on your list that

4 ultimately you would need to do that analysis?

5 A You know, very likely. I guess in my

6 experience, you know, we ask for data, we receive data,

7 we ask follow-up questions about the data. So yeah, I

8 mean, I think you get your initial set of information,

9 and then that leads to further questions.

10 Q As part of your analysis in this case, have

11 you asked for any of that information? Yeah.

12 A I mean, at least informally, I recall asking

13 counsel about the availability of, you know, breakout of

14 CPI's financial performance for the consumer and the

15 business and the new home segments that are evident on

16 CPI's website. And, you know, it is standard practice

17 for my team and I to, you know, ask and inquire about,

18 you know, what -- are there budgets and forecasts and

19 business planning documents that have been asked for or

20 provided in the case.

21 Q I'm going to ask you a slightly different

22 question now. We were talking before about potential

23 Lanham Act damages, one of which is the profits of the

24 wrongdoer; correct?

25 A Correct.

Page 91

1 Q And in order to determine the profits of the

2 wrongdoer, would you similarly be required to review

3 financial statements and information related to the

4 wrongdoers' performance during the period of time they

5 are alleged to have engaged in wrongful conduct?

6 A Yes.

7 Q Okay. Similarly, would you be required to go

8 through this multistep, complicated analysis in order to

9 parse out what portion of the profits are attributable

10 to the wrongful conduct?

11 A It's a slightly different process based on my

12 experience and practice, but it does involve a lot of

13 the same types of information.

14 Q Okay. Have you received the information from

15 Vivint to perform that kind of analysis of their

16 financial performance during the period of time relevant

17 to this lawsuit?

18 A Yeah. And as I recall, there is a discussion

19 of those calculations in this report towards the end

20 where I offer them up as an alternative measure of

21 economic damages in contrast to the opinion presented in

22 the Winer report for the disgorgement calculation. I

23 guess I would say we were able to develop kind of the

24 first step which is the calculation of the possible

25 incremental profits from a theoretical amount of

Page 92

1 unjustly achieved customers.

2 Q All right.

3 A But I didn't complete that analysis with the

4 second part which was an apportionment of that amount of

5 incremental profits specific to the alleged -- the

6 allegations in this case.

7 Q And with respect to that calculation you're

8 talking about, you based it -- those calculations on the

9 24 transcripts that are referenced in the Winer report;

10 correct?

11 A Yeah. As I recall, that's the number that

12 gets the calculation started.

13 Q Okay. And I believe that as part of your

14 calculation, you also applied a concept that's set forth

15 in the Winer report that a small percentage of people

16 that have complaints actually make complaints?

17 Do you recall that?

18 A Yeah. I mean, we can see it in the schedules

19 here if you go to that page. But --

20 Q I'd be happy to pull that up. Hold on.

21 A It's probably -- as I recall, it's the last

22 schedule.

23 Q Last schedule. Okay. I'm showing you what's

24 called "Schedule 3." Is that --

25 A Yeah. Probably one more. One or two more.

Page 93

1 Q There's Schedule 2. This looks like --

2 A Yeah. It's a higher-numbered schedule. So

3 scrolling the other way.

4 Q Oh, okay.

5 A One more. Two more, maybe. Schedule 6.

6 Yeah. This is it.

7 Q Got it. Okay.

8 So in this alternative calculation that you

9 did, you have "Complaints, 24"; correct?

10 A Yes.

11 Q And that's just relying on the 24 complaints

12 that are referenced in the Winer report; correct?

13 A Yes. That's the basis for the number 24.

14 Q Right. You have not done any computation that

15 would include complaints that were made to Vivint;

16 right?

17 A Correct.

18 Q And this would not include any customers that

19 might have been the subject of deceptive practices that

20 have not been made aware that they were deceived;

21 correct?

22 MR. BROWN: Object to form.

23 THE WITNESS: Well, I guess that kind of

24 encompasses the 5 percent ratio there, right, because --

25 well, you know, it's kind of unclear exactly what the

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1 95 percent implies, but yeah, the next step is

2 increasing the 24 to 480 for those customers who did not

3 complain.

4 BY MR. ROHNER:

5 Q Right. And, well, let me ask you about that.

6 What's your understanding -- the studies that are

7 referenced in Dr. Winer's report, what's your

8 understanding of the explanation in those studies as to

9 the reasons that the 95 percent don't complain?

10 MR. BROWN: Object to form. Vague as to which

11 study you're referring to.

12 THE WITNESS: You know, this is probably --

13 warrants a whole topic of discussion, but my basic

14 understanding is that the Winer report is using -- is

15 citing this 95 percent ratio to support a hypothetical

16 concept that there is a larger portion or larger number

17 of customers who haven't filed a complaint and that

18 evidence of a small number of complaints can point to a

19 broader pattern of behavior.

20 BY MR. ROHNER:

21 Q Okay. So my question is -- well, and I'm

22 not -- I set it up that way. I didn't mean to infer

23 that I already asked it. I think it's a new question.

24 Do you have an opinion as to the reliability

25 or applicability of the reports referenced in

Page 95

1 Dr. Winer's expert-witness report that discuss this

2 general notion that less -- that a small percentage of

3 people that have complaints actually make complaints?

4 MR. BROWN: Object to form. Same objection.

5 THE WITNESS: So couple things: When I

6 prepared this report, I had not had a chance to review

7 the studies that were cited in the Winer report because,

8 for whatever reason, I understood -- I understand they

9 hadn't been produced yet.

10 I have since seen those studies. I am not --

11 in my review of those studies, I didn't -- I couldn't

12 find where the 95 percent reference was from, and my

13 review of those studies kind of informed me that they

14 were talking about, you know, relatively dated examples

15 and different industries. So I wasn't exactly -- I

16 wouldn't necessarily agree that 95 percent is a

17 factually accurate number by which to extrapolate a

18 certain amount of known complaints to a broader

19 population.

20 But that said, you know, I mean, I understand

21 that that's one of the numbers that Winer kind of uses

22 to justify a broader marketing campaign as a damages

23 remedy and because 95 is the -- the 95 percent is the

24 number that Winer points to as his conclusion, and that

25 number seems to be kind of a catchall for all the

Page 96

1 different studies and observations he makes, I just went

2 ahead and used the 95 percent to really kind of imply

3 a -- you know, an upper bound or a maximum number of

4 potentially impacted customers based on the 24.

5 And, of course, if there's evidence that some

6 of those 24 really weren't confused or were not the

7 received deceptive sales practices, then I think the

8 reasonable starting point to this calculation would be a

9 lower number. And, of course, as you've demonstrated or

10 pointed me to, there may be evidence of additional

11 customers who may have been received deceptive sales

12 practices. And if the jury or whoever finds that they

13 are the victim of deceptive sales practices, this kind

14 of metric here or this calculation could be used for a

15 larger starting number.

16 BY MR. ROHNER:

17 Q Got it.

18 Couple questions. First, in your report, you

19 don't offer any opinion suggesting that -- that the

20 5 percent, 95 percent ratio is unreliable or

21 inappropriate, do you?

22 MR. BROWN: Object to form.

23 THE WITNESS: Yeah. Sorry. I recall

24 commenting on it. I don't remember what I said.

25 ///

Page 97

1 BY MR. ROHNER:

2 Q Right. Well, are you an expert -- do you

3 consider yourself to be an expert in the kind of

4 marketing research and analysis that led to the

5 percentages that are referenced in Dr. Winer's report?

6 A No.

7 MR. BROWN: Object to form.

8 THE WITNESS: But I think my comment would be

9 that I was unable to review the 95 percent at the time I

10 wrote the report and that, you know, the studies done to

11 derive the 95 percent may be observations from different

12 industries and different customer circumstances and not

13 necessarily appropriate in this case.

14 BY MR. ROHNER:

15 Q Do you know if Vivint itself has used the

16 5 percent-95 percent ratio in analyzing its own

17 complaints by customers?

18 A I don't know one way or the other.

19 Q Okay. If Vivint actually used the same ratio,

20 would that impact your opinion at all?

21 MR. BROWN: Object to form. Improper

22 hypothetical.

23 THE WITNESS: You know, I guess I'm willing to

24 consider any evidence that's relevant to the case, so

25 yeah, I mean, it's something I would consider. I don't

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1 know how it would impact my observations or opinions.

2 BY MR. ROHNER:

3 Q And second clarification. I think you

4 mentioned that if there's evidence presented that there

5 were more than 24 complaints at issue, you would agree

6 that applying -- if you applied that ratio, the total

7 complaints would be -- would increase commensurate with

8 the increase in reported complaints?

9 MR. BROWN: Object to form.

10 THE WITNESS: Yeah. I guess the way you said

11 that was a little off.

12 BY MR. ROHNER:

13 Q I think you said that -- well, let me rephrase

14 it. I believe you testified that if evidence was

15 presented that suggested that that 24 number was low and

16 it was in fact higher, then -- then applying this

17 analysis, your total complaints number 480 would also

18 increase by that -- pursuant to that same ratio; isn't

19 that right?

20 A Yeah.

21 MR. BROWN: Object to form.

22 THE WITNESS: Using this same methodology and

23 the same -- all things being equal, if you change the

24 starting point, the end number would be higher.

25 ///

Page 99

1 BY MR. ROHNER:

2 Q Well, let me ask you a question just in terms

3 of the general concept. Leave out whether it's

4 5 percent, 95 percent or some other ratio.

5 Is it -- do you have any opinion as to whether

6 the concept that less people complain than actually

7 experience conduct that might justify a complaint?

8 A Well, I guess, I mean, the concept seems

9 reasonable, and based on the studies I saw after I

10 completed this report, you know, it seemed that in

11 multiple circumstances, those studies have borne out

12 that relationship. But I don't -- you know, the devil's

13 in the details, and it doesn't appear that there's been

14 any study for this specific industry or for CPI's own

15 customer set.

16 Q Now, if you were doing this analysis, you

17 would want to know if Vivint had received complaints,

18 wouldn't you?

19 A I mean, it would be an input -- if I was

20 trying to calculate the unjust benefit of Vivint, the

21 focus of the analysis would be on the number of unjustly

22 achieved new customers at Vivint.

23 Q But it would also be relevant to determining

24 whether the conduct had a widespread impact, wouldn't

25 it?

Page 100

1 MR. BROWN: Object to form. Vague.

2 THE WITNESS: Yeah. I mean, theoretically, it

3 could be relevant. It's just a matter of what does the

4 actual data show.

5 BY MR. ROHNER:

6 Q Correct. And in order to assess that, you

7 would actually need to receive and review the data from

8 Vivint regarding the complaints that were made to

9 Vivint; right?

10 A Yes.

11 Q And by referencing the 24 complaints that

12 Dr. Winer has in his report, you're not suggesting that

13 a separate group of complaints that might have been

14 received by Vivint are not relevant?

15 A You know, I don't have any opinion about those

16 other complaints to Vivint because I haven't had the

17 opportunity to review or analyze those documents.

18 Q And if the jury ultimately found that Vivint

19 had actually received hundreds of complaints related to

20 CPI customers complaining about deceptive trade

21 practices by Vivint, that's what -- you would factor

22 that into your analysis of what the appropriate damages

23 were; correct?

24 MR. BROWN: Object to form.

25 THE WITNESS: I could do that, yes.

Page 101

1 BY MR. ROHNER:

2 Q And if the evidence showed that Vivint had

3 received hundreds of complaints from CPI customers

4 related to conduct deceptive trade practice -- deceptive

5 practices by Vivint salespeople, that it would impact on

6 or could potentially impact on a determination as to the

7 geographic scope and breadth of the problem; correct?

8 MR. BROWN: Object to form. Compound.

9 THE WITNESS: Yeah. Once again, I mean, I

10 can't draw -- yeah. If the data is relevant to

11 different geographies, then yes, it could be informative

12 about the geographic scope.

13 BY MR. ROHNER:

14 Q But to date, that's not an analysis that

15 you've done?

16 A That's correct.

17 MR. ROHNER: Okay. It's 1:00 here. And if

18 it's okay with everybody, I actually -- I came in early

19 today, so I ate on the early side, and so if it would be

20 okay for us to take a slightly longer break, maybe

21 30 minutes, so that I can grab a sandwich. And then

22 just for planning purposes, I don't think I have

23 probably more than an hour or two when we come back.

24 MR. BROWN: Okay.

25 ///

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1 BY MR. ROHNER:

2 Q Does that work?

3 A That works for me.

4 MR. BROWN: That works me.

5 THE WITNESS: Do we get to hold you to that

6 extra hour or so estimate or --

7 BY MR. ROHNER:

8 Q Ask Josh if we can hold people to their

9 representations as to how much time they have.

10 A I'll let you guys have that fight. I'll stay

11 out of it.

12 Q I'm just kidding. I'll say what Josh said. I

13 mean, I try and, you know, stick with what I expect is

14 going to happen, but I understand and I agree with Josh.

15 Sometimes we're just wrong.

16 MR. BROWN: Yep.

17 MR. ROHNER: So we'll do our best.

18 MR. BROWN: Do our best. That sounds

19 reasonable to me. I mean, obviously, Dan, you know I'm

20 later here, so I would rather take shorter breaks, but a

21 half an hour is very reasonable and sounds like if your

22 estimate is correct or close, we'll still end at a

23 reasonable time. So that's fine with me.

24 MR. ROHNER: Okay. Sounds good. So how about

25 until 1:35 or 1:35 Mountain?

Page 103

1 MR. BROWN: That works for me.

2 MR. ROHNER: Okay. Sounds good. Thanks,

3 guys.

4 THE VIDEOGRAPHER: We're going off the record.

5 The time is 12:05 p.m.

6 (Off the record.)

7 THE VIDEOGRAPHER: We are going on the record.

8 The time is 12:44 p.m.

9 BY MR. ROHNER:

10 Q Okay, Mr. Buss. Thanks for allowing us to

11 take a quick break. I think I got three bites in, but

12 that is hopefully all I'll need here.

13 I'm going to reshare your report here. Oh,

14 resume. Got it. All right. Are you seeing your

15 report?

16 A Yes.

17 Q Okay. One of the things that you mentioned

18 earlier in your testimony was this notion that -- that a

19 lost profits analysis should have been done to then

20 compare to the corrective marketing to see if the

21 corrective marketing was a reasonable number.

22 Do you recall that testimony?

23 MR. BROWN: Object to form. Mischaracterizes

24 the prior testimony of the witness.

25 ///

Page 104

1 BY MR. ROHNER:

2 Q Let me ask you: Is your opinion that a lost

3 profits analysis should have been done by Dr. Winer?

4 A I mean, it's my opinion that Mr. Winer should

5 have at least considered it and explained why he thought

6 it was not a reasonable measure. I don't think I said a

7 lost profits analysis has to be done, but I probably

8 said something like, you know, a measure of actual harm

9 or a measure, you know, and analysis of change in

10 financial performance or, you know, lack of performance

11 to expectations should have been presented in either the

12 Winer or the Mangum report, you know, to demonstrate

13 that CPI has been harmed related to the allegations in

14 this case.

15 Q Okay. We talked -- I think you talked earlier

16 about the analysis with respect to a review of the

17 financial statements and the number of factors that you

18 contend Mr. Winer should have looked at.

19 Do you recall that testimony?

20 A Yes.

21 Q So I want to focus your attention now on this

22 concept of doing a lost profits analysis. Okay?

23 Would you agree that in order to do a lost

24 profits analysis, you would need to know the number of

25 customers that switched from CPI to Vivint as a result

Page 105

1 of the alleged wrongful conduct?

2 A Yeah. That would be a good starting point,

3 yes.

4 Q Well, and actually, even before you could

5 figure out which customers switched from CPI to Vivint

6 as a result of the wrongful conduct, wouldn't you --

7 wouldn't you need to know the number of customers that

8 switched from CPI to Vivint?

9 A Yeah. That makes sense. I mean, that

10 would -- you would have to establish -- yeah. I mean,

11 those would both be good -- those would be the starting

12 points for that analysis; right? Yeah.

13 Q Okay. I want to turn to page 10. I'll show

14 it on your screen here. Towards the top, you have a

15 list of bullet points of information that -- hold on.

16 Let me -- top of the page here. Well, I'll read the

17 paragraph. You say, "I have not seen any evidence

18 indicating an amount of Vivint's revenues or operating

19 profits are the result of the alleged wrongful actions,

20 nor have I seen any information from CPI or its damages

21 experts indicating any amount of revenues or profits

22 which could be attributed to the Alleged Wrongful

23 Actions. Such evidence might include" -- and then you

24 have a list of bullet points. First is "A list of

25 customers who have switched to Vivint from CPI due, at

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1 least in part, to the Alleged Wrongful Actions."

2 You haven't seen that information; correct?

3 A That's correct.

4 Q Do you know if Vivint has provided that

5 information, a list of customers who switched to them

6 from CPI?

7 A I do not know.

8 Q Okay. And do you know -- did you know that

9 CPI actually requested that information from Vivint, and

10 Vivint has indicated that they don't have it?

11 MR. BROWN: Object to form.

12 THE WITNESS: You know, I'm -- I don't know --

13 I can't tell you about what you just said because I

14 don't know if that happened or not.

15 BY MR. ROHNER:

16 Q Okay. But you do agree it's information that

17 would be relevant to making a determination as to the

18 number of customers that actually switched from CPI to

19 Vivint?

20 A Yeah. I mean, as stated there in my report.

21 I mean, I think --

22 Q Now, if that information is not available,

23 does that render the ability to do a lost profits

24 computation as a form of damages more difficult?

25 A Yeah, I suppose so.

Page 107

1 Q And next bullet point you have is "A list of

2 customers who were actually confused by Vivint's Alleged

3 Wrongful Actions."

4 Do you see that?

5 A Yes.

6 Q Now, before you could have a list of customers

7 who were actually confused, you would probably first

8 need a list of customers that Vivint actually made sales

9 calls on, wouldn't you?

10 MR. BROWN: Object to form.

11 THE WITNESS: Yeah. I mean, I guess that

12 would be one source of that information. That's one

13 that I can think of at the moment. There could be

14 others, I guess.

15 BY MR. ROHNER:

16 Q Do you know if Vivint actually keeps track of

17 the potential customers they make sales calls on?

18 A I don't know one way or the other.

19 Q Okay. Now, if Vivint doesn't keep track of

20 who they make sales calls on, does that render an

21 expert's ability to do a lost profits analysis more

22 difficult?

23 MR. BROWN: Object to form. Improper

24 hypothetical.

25 THE WITNESS: I guess it can.

Page 108

1 BY MR. ROHNER:

2 Q If you don't know who the customers were that

3 were approached and you don't know who the customers

4 were that switched from CPI to Vivint, how can you

5 perform a lost profits analysis that's tied to those

6 switches due to alleged wrongful conduct?

7 A Well, if you're doing a lost profits analysis,

8 one place to start would be the customers who have left

9 CPI, and I think the data would be specific -- you know,

10 you could start with the set of customers who have left

11 CPI and then start to whittle down that number to

12 identify which ones could have left because of some

13 conduct by Vivint.

14 Q All right. And I believe your report reflects

15 that over this period of time, I think it was 89 -- I

16 think the number you used in the report was 89,000

17 customers left CPI?

18 A You know, as I recall, that's the number that

19 data provided by CPI indicates.

20 Q Okay. And so that would give us the piece of

21 who left CPI. The information as to who ended up at

22 Vivint would have to come from Vivint, wouldn't it?

23 MR. BROWN: Object to form.

24 THE WITNESS: I mean, that would be -- that

25 seems like a reasonable source of that information.

Page 109

1 BY MR. ROHNER:

2 Q Okay. And so if you can't get that

3 information from Vivint, wouldn't you agree that

4 performing a lost profits analysis is virtually

5 impossible?

6 MR. BROWN: Object to form.

7 THE WITNESS: There's multiple ways to skin a

8 cat. I mean, I -- you -- I don't think it's virtually

9 impossible. It's -- CPI needs to investigate, you know,

10 their own data, their own sales data within that

11 consumer segment. You know, I think there are other

12 ways to do it. I'm not sure what internal information

13 CPI keeps or has that could be leveraged to do that

14 analysis. But, you know, I think -- I mean, the Winer

15 report didn't explain why that analysis or at least the

16 request for that type of information from CPI wasn't

17 done.

18 BY MR. ROHNER:

19 Q You don't know if CPI has that information, do

20 you?

21 A I don't know.

22 Q If you were trying to whittle down the

23 customers that might have been impacted by Vivint's

24 sales conduct, wouldn't you also want to know where

25 Vivint geographically, even down to the neighborhoods,

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1 where Vivint salespeople made calls on customers?

2 MR. BROWN: Object to form.

3 THE WITNESS: You know, that's, again, another

4 piece of information that could be helpful.

5 BY MR. ROHNER:

6 Q Have you seen any evidence that would reflect

7 where Vivint made sales calls on CPI customers?

8 A Not that I recall, no.

9 Q And did you know that in response to

10 discovery, Vivint has said they don't keep track of

11 that?

12 A I don't know what Vivint's discovery responses

13 are. I don't recall seeing what Vivint's discovery

14 responses were.

15 Q Have you asked for that information from

16 Vivint?

17 A I don't recall one way or the other.

18 Q I'd like you to turn to Exhibit -- or I'm

19 sorry, page -- I have to turn for you. I'm going to

20 look at page 17 of your report. Okay. Actually, why

21 don't we start with 16 because that's the beginning of

22 the section.

23 So I want to kind of walk through this and

24 make sure I understand what your opinion is with respect

25 to the corrective advertising opinion of Dr. Winer. And

Page 111

1 then also you include in your report your own analysis,

2 and I want to make sure I understand how you came up

3 with that analysis. Okay?

4 MR. BROWN: If we're moving to a new section,

5 Dan, can we take a brief break?

6 MR. ROHNER: Sure. Do you have a reason,

7 Josh? We've been on the record for about ten minutes.

8 MR. BROWN: I apologize. I need to grab a

9 bathroom break. It will be quick.

10 MR. ROHNER: Oh, yeah. What do you need? Ten

11 minutes?

12 MR. BROWN: Five minutes. Five, ten. Five

13 should do it.

14 MR. ROHNER: Sure.

15 MR. BROWN: I apologize.

16 MR. ROHNER: Sure. That's fine.

17 THE VIDEOGRAPHER: We're going off the record.

18 The time is 12:58 p.m.

19 (Off the record.)

20 THE VIDEOGRAPHER: We are going on the record.

21 The time is 1:07 p.m.

22 BY MR. ROHNER:

23 Q Thank you. I'm switching -- I'm actually

24 taking a step back because of Mr. Brown's little break,

25 I thought of a question I didn't ask about data you had

Page 112

1 before. So I'm sharing my screen again. I'm on the

2 same page with the bullet points we talked about

3 regarding information that you identified that you

4 believe would be relevant.

5 In the paragraph above those bullet points,

6 you discuss the fact that CPI operates only in

7 Tennessee, Georgia, North Carolina, and South Carolina.

8 Do you see that reference in the paragraph?

9 A I do, yes.

10 Q And you also make the point that only a

11 portion of Vivint's revenues and operating profits may

12 overlap with CPI's geographic area of operations.

13 Do you see that?

14 A Yes, I do.

15 Q Now, in order to do an analysis of lost

16 profits to CPI or disgorgement of revenue to Vivint, in

17 your opinion, would it be relevant that the, you know,

18 lost profits or the revenue is tied to those states

19 where CPI operates?

20 A Well, I mean, I'm not sure I understand your

21 question only because, I mean, how would CPI claim a

22 lost customer if the customer was outside the territory

23 where CPI operates?

24 Q That's -- yeah. And I wasn't -- it wasn't a

25 trick question. I was actually -- that's exactly what I

Page 113

1 was asking.

2 What would be relevant to you in that analysis

3 is the revenue to Vivint in the states where CPI

4 operates. It wouldn't be relevant that they earned

5 revenue in California or somewhere where CPI doesn't

6 operate; is that fair?

7 A I mean, you know, and just to make sure, we're

8 kind of talking about two different analytical processes

9 here: one, the calculation of lost profits, and two,

10 the calculation of profits available for disgorgement.

11 So I just want to make sure. Are you asking about both

12 or one or --

13 Q Well, let me ask you: Is the geographic

14 region in which CP operates -- CPI operates relevant to

15 both calculations?

16 A I mean, I guess in different ways; right? I

17 mean, for the lost profits calculation, we'd be focusing

18 on the profits that CPI did not achieve because of the

19 alleged wrongful actions in this case.

20 So by -- because CPI has a specific geographic

21 territory in which it operates, I would have to presume

22 that any claims lost customer would reside or have a

23 home within that geographic territory; right? But, you

24 know, I guess if there was some reason why someone had a

25 CPI account or CPI services outside that territory,

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1 that's a different question.

2 But, you know, the lost profits calculation

3 would focus on those customers that CPI can demonstrate

4 were lost to CPI because of the alleged wrongful actions

5 as opposed to any other reason why someone might leave

6 CPI.

7 Q Sure. And as part of that, there would need

8 to be evidence that Vivint also was engaging in business

9 activities in those geographic areas; correct?

10 A Yeah. I guess, you know, if Vivint didn't

11 operate in that territory, it would be a bigger stretch

12 to figure out how they caused a lost customer at CPI.

13 Q Got it.

14 So I had asked you a slightly different

15 question before, but wouldn't you agree that it would be

16 relevant to learn from Vivint what geographic areas

17 they're actually engaging in door-to-door sales in order

18 to make that determination and do that calculation?

19 A Well, and by that calculation, you mean

20 specifically the lost profit calculation.

21 Q Correct. Sorry. Yes.

22 A Yeah. Well, it could be relevant. I mean, if

23 evidence was presented that Vivint had not conducted

24 deceptive sales practices or caused trademark confusion

25 or any of the other alleged wrongful actions, in one of

Page 115

1 the states that CPI operates, then I think that we'd

2 have to parse out any customer population that was lost

3 because there would be -- it would seem to me that

4 hypothetically, there would be no evidence of any

5 wrongdoing in that territory, so CPI could not have lost

6 that customer because of the alleged wrongful actions.

7 Q And that might not be tied or necessarily

8 dependent on the state as a whole. There could be

9 counties or even neighborhoods where Vivint does or

10 doesn't operate; correct?

11 A Sure.

12 Q And do you know whether Vivint keeps track of

13 the towns, neighborhoods, counties that they conduct

14 door-to-door sales in?

15 A I don't know one way or the other.

16 Q But that's information that would be relevant

17 to that analysis; correct?

18 MR. BROWN: Object to form.

19 THE WITNESS: Yeah. I guess, like I said,

20 it's one way to skin that cat; right? It could be used,

21 but I think there's -- if you didn't have it, you know,

22 then it would be up to the plaintiff to explore other

23 ways to develop that measurement.

24 BY MR. ROHNER:

25 Q In terms of the revenue piece that we were

Page 116

1 talking about, so you drew that distinction. In terms

2 of revenue of Vivint that might be then relevant to a

3 disgorgement analysis, would you agree that -- well, I

4 believe you say in your report that the relevant set of

5 revenue is the revenue that's directly attributable to

6 those geographic regions where both CPI and Vivint

7 operate; correct?

8 MR. BROWN: Object to form.

9 THE WITNESS: Well, yeah. I mean, if the

10 allegation is that Vivint unjustly achieved a customer

11 because of the alleged wrongful actions that occurred in

12 a specific territory, then it would be kind of

13 unreasonable to imply that revenue was unjustly achieved

14 outside of that territory. I guess that just kind of --

15 common sense.

16 BY MR. ROHNER:

17 Q Do you know if Vivint keeps track of their

18 revenue in such a way that they can differentiate

19 between revenue that was earned in one state versus a

20 different state?

21 A I don't believe Vivint had the ability to

22 develop data specific to the states in which their sales

23 occurred.

24 Q So if Vivint can't develop data specific to

25 the states in which it occurred, you would agree that

Page 117

1 doing a disgorgement analysis based on the revenue

2 achieved by Vivint would be hampered?

3 MR. BROWN: Object to form.

4 THE WITNESS: No. Like I said, that's one

5 source of the information, but, you know, if that

6 information isn't available, then you need to find other

7 information that might be informative.

8 BY MR. ROHNER:

9 Q Okay. Would you agree that generally

10 speaking, that when you're trying to determine what

11 might be an appropriate measure of damages, you consider

12 the facts specific to each case and the information and

13 data that's actually available to consider?

14 MR. BROWN: Object to form.

15 THE WITNESS: I think the answer to that is

16 yes.

17 BY MR. ROHNER:

18 Q Well, tell me: If you were making a

19 determination as to different methodologies to measure

20 damages, if one of the methodologies lacked significant

21 portions of the data needed to perform the calculation,

22 would that impact on your potential decision to use a

23 different methodology?

24 MR. BROWN: Object to form.

25 THE WITNESS: Yeah. I mean, I guess it's

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1 common sense that if certain important information

2 wasn't available, that the analyst might, you know, put

3 less stock in the answer indicated by that more

4 speculative calculation.

5 BY MR. ROHNER:

6 Q Right. I'd like -- I'm going to flip the

7 report to page 16. Actually, top of 16 and beginning of

8 17. Okay.

9 And we had been -- I had started some

10 questioning, and then I went back, and I apologize for

11 that. I had started some questioning where I explained

12 I'm going to kind of ask you a little bit about your

13 comments as to Mr. Winer's corrective advertising

14 opinion. That's how you describe it. And also, you

15 include in your report your own alternative potential

16 computations of corrective marketing damage amount.

17 Do you recall that in your report?

18 A Yes.

19 Q Okay. So first is at the top of page 17, here

20 you identify two components of Dr. Winer's corrective

21 advertising opinion. The first is 9.5 million to hire

22 and train door-to-door employees, and then the second

23 bullet point is 1.3 million for a marketing campaign.

24 So let's -- in the next paragraph, you say,

25 "The Corrective Advertising Opinion may not be an

Page 119

1 appropriate application of the corrective advertising

2 methodology, incorporates aggressive calculation inputs,

3 and does not consider alternative methods to achieve an

4 equivalent level of corrective communication."

5 Did I read that correctly?

6 A Yes.

7 Q Okay. So this next heading, "Inappropriate

8 Application of Corrective Advertising Methodology," this

9 is your explanation as to why Dr. Winer is not applying

10 this methodology correctly; is that fair?

11 MR. BROWN: Object to form.

12 THE WITNESS: Yes.

13 BY MR. ROHNER:

14 Q Okay. So you're talking about the two

15 components here. The -- and you start out with a

16 discussion of the second component, the 1.3 million for

17 a marketing campaign. And as I read this generally, you

18 don't agree that 25 percent of CPI's marketing expense

19 was an appropriate input for determining the marketing

20 spend that was justified for the corrective advertising

21 campaign; is that fair?

22 A I don't see in the Winer report how use of

23 that 25 percent is supported or explained.

24 Q Okay. Have you done any analysis to determine

25 whether a different percentage could be more

Page 120

1 appropriate?

2 A You know, that's a bit of a tough question. I

3 mean, I've seen some kind of legal rulings where

4 25 percent was applied as kind of a maximum, but to be

5 honest, I've never really seen a justification for that

6 25 percent amount.

7 Q So, well, explain to me. What -- in your

8 opinion, what are the factors that should be looked at

9 in determining what the appropriate percentage would be

10 in this case?

11 MR. BROWN: Object to form.

12 THE WITNESS: Let's see. You know, this might

13 not be an exhaustive list, but I think if there's going

14 to be such a, you know, percentage of marketing expense

15 applied as a remedy, it should be the percentage of the

16 marketing activities that are, you know, subject to this

17 case whereas Winer applies the 25 percent to the total

18 CPI marketing and CPI operates in a couple different

19 business segments. Some of which are -- seem to be

20 outside of the allegations in this case.

21 I think the 25 percent needs to be supported

22 by, you know, an analysis to show that that's at least a

23 reasonable approximation of the marketing activities

24 that would accomplish, you know, the goal of correcting

25 the harm as opposed to just saying, "Hey, they spent

Page 121

1 this much in the past. Let's throw 25 percent on it."

2 You know, I think you also need to have an

3 understanding of what comprised the marketing expenses

4 reported by the company; right? So maybe that's -- some

5 of those marketing expenses are unrelated to the form

6 and format of the proposed remedy.

7 BY MR. ROHNER:

8 Q In your report, three paragraphs down from

9 where we were just looking, it's the paragraph that

10 starts with the word "Therefore."

11 Do you see that?

12 A I do.

13 Q It says "Therefore, the Winer Report's use of

14 25 percent in addition to the estimated cost of the

15 hypothetical campaign would be inappropriate. Also, the

16 use of CPI's total marketing expense, rather than

17 Vivint's expense for door-to-door selling activities in

18 the allegedly impacted geographies would be

19 inappropriate."

20 I want to -- I don't understand. Well, let me

21 ask you this: Why, in your opinion, is it Vivint's

22 expense for door-to-door selling activities that's

23 relevant to determining what the CPI marketing expense

24 should be?

25 MR. BROWN: Object to form.

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1 THE WITNESS: Well, it's my understanding that

2 CPI does not undertake door-to-door selling activities.

3 And so unfortunately in this case, there's not a

4 benchmark available from CPI's own experiences for which

5 someone could say that the benchmark that could be used

6 as an indication of the cost to correct the harm.

7 So the only data about door-to-door selling

8 activities is data from Vivint. Now, I guess I just

9 said, "the only data." I'm sure there are other

10 entities that conduct door-to-door selling activities in

11 those territories, but we don't know who they are, and

12 there doesn't seem to have been any research presented

13 by the plaintiff's experts indicating what other

14 possible door-to-door selling benchmarks are out there.

15 BY MR. ROHNER:

16 Q Okay. So let me explain my confusion, and

17 then I'll ask the question. We were talking earlier

18 that you had identified two components to Dr. Winer's

19 corrective marketing campaign damage assessment. You

20 know, one piece was the -- was the 9.5 million to hire

21 and train door-to-door employees, and the second piece

22 was this 1.3 million for a marketing campaign.

23 Remember those two components?

24 A Yeah. Those are the two components presented

25 in the Winer report.

Page 123

1 Q When you're talking about using Vivint's

2 expense for door-to-door selling activities, are you

3 talking about the first component of Winer's damages

4 assessment or the second component?

5 A Yeah. Well, I think I'm making the point that

6 CPI -- the 25 -- in the Winer report, 25 percent is

7 applied to CPI's total marketing expense and that CPI's

8 total marketing expense is not a relevant benchmark for

9 marketing to support door-to-door selling activities

10 because CPI's total marketing expense is comprised of

11 activities unrelated to door-to-door selling.

12 Q So what's the basis for that opinion that it's

13 not an appropriate, I guess, type of marketing expense

14 given the fact that Vivint does door-to-door sales and

15 CPI does not? What's the basis for that opinion?

16 A Well, the basis for that statement is that

17 CPI, to my understanding, is CPI doesn't do door-to-door

18 and that Winer applies 25 percent to the total marketing

19 dollars reported in CPI's summary financial results.

20 Q Does Vivint only do door-to-door marketing?

21 A My understanding is they do substantial other

22 marketing beyond door-to-door.

23 Q Sure. And so I'm -- I guess I'm just trying

24 to -- I'm trying to understand in your view what's --

25 what the basis is for drawing that distinction between

Page 124

1 door-to-door sales versus general marketing as to why

2 the 25 percent number that Dr. Winer uses is

3 inappropriate.

4 A I think I just explained that; right? I mean,

5 CPI -- or what Mr. -- Dr. Winer, whatever his name is,

6 the Winer report provides a calculation that is

7 25 percent of CPI's total marketing expense. The Winer

8 report doesn't fully explain why that's the appropriate

9 mechanism for the calculation or why the 25 percent

10 should be additive to the specific cost of conducting

11 the marketing -- the door-to-door marketing campaign.

12 And the Winer report doesn't appear to

13 benchmark or compare the result of applying 25 percent

14 to CPI's actual marketing expense to any other activity

15 that might be relevant to correcting the alleged harm in

16 this case.

17 Q Okay. And so as I'm hearing you, it sounds

18 like those were all observations you made of things that

19 are not in his report; correct?

20 A Yes.

21 Q And have you done any analysis to determine

22 what you think is a more appropriate percentage of

23 marketing expense?

24 A No. I don't have an opinion as to a -- if

25 there's a better percentage to use or if the calculation

Page 125

1 should be based entirely on the percentage, I guess,

2 or -- but I do believe I'm offering the opinion in this

3 report that there's no basis presented in the Winer

4 report for having the two components be additive.

5 Q Is it your opinion that they should not be

6 additive?

7 A I think the Winer report hasn't provided

8 enough explanation to affirmatively demonstrate that

9 they should be additive.

10 Q And you haven't done any independent analysis

11 to make that determination either; correct?

12 A I guess other than what we've just discussed.

13 Q Okay. The next paragraph down, you talk about

14 the cost to obtain a new subscriber through Vivint's

15 direct-to-home sales channel. And you place a number on

16 that of 2,495.

17 Do you see that?

18 A I guess -- yeah. I didn't come up with that

19 number. That number is in a document from Vivint.

20 Q Got it. So you just note that that is the

21 cost that Vivint attributes to the cost to obtain a new

22 subscriber; correct?

23 A I think what you said is correct. I wasn't

24 sure if you were asking a question or not. So --

25 Q Okay.

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1 Well, help me understand, explain to me how

2 that number that Vivint's cost to obtain a new customer,

3 how that factors into your analysis of what would be a

4 more appropriate and reasonable corrective advertising

5 campaign damage number.

6 A Well, because that's a -- that is the cost

7 that Vivint has incurred over the years to do the type

8 of activity that the Winer report is proposing in its

9 corrective advertising campaign, right? Vivint does

10 conduct door-to-door sales operations and the Winer

11 report proposes a door-to-door marketing campaign. So

12 the data from Vivint is at least an available benchmark

13 to determine what the cost might be to do door-to-door

14 activity to communicate with a population of customers.

15 Q Okay. Explain to me the difference between

16 the $55.19 number and the $1,091 number that you

17 reference in your report.

18 A Per the document I was provided by Vivint, $55

19 is the amount per customer for marketing activities, and

20 the 1,000 is the amount per customer when you include

21 both marketing activities and employee compensation.

22 Q And then, presumably, there are other costs

23 attributable to acquiring a customer that are unrelated

24 to the marketing and unrelated to the employee costs; is

25 that fair?

Page 127

1 A Yes.

2 Q Okay. And you're just relying on Vivint's

3 numbers for those, for -- you're relying on Vivint's

4 records and their determination as to what the marketing

5 cost is and what the employee costs are?

6 A Oh, is that -- are you asking me if that's

7 correct?

8 Q Yes. Correct. Sorry.

9 A Yes. It's based on a document provided to me

10 by Vivint.

11 Q Did you do any kind of analysis to verify

12 those amounts that were provided by Vivint?

13 A I did discuss the amounts on that report with

14 someone from the management at Vivint.

15 Q Who did you talk to?

16 A The name is referenced somewhere in my report.

17 I want to -- I want to say Justin. Justin. I can't

18 remember the last name at the moment.

19 Q But it's something you believe you referenced

20 in the report? It's somewhere in there, the name?

21 A Correct.

22 Q Okay. All right. Well, then I won't hold you

23 to Dustin. Justin.

24 A It could be Dustin. I might have gotten it

25 wrong.

Page 128

1 Q Okay. Did you do anything to verify with

2 third-party sources what would be a typical marketing

3 expense or employee cost to acquire a customer in the

4 security industry?

5 A I did do some research to find compensation

6 amounts from various sources for, you know, jobs in

7 the -- sales jobs in this industry, yes.

8 Q But the calculations that are reflected in --

9 on page 18 of your report are tied to these numbers that

10 you received from Vivint?

11 A The numbers presented on this page of my

12 report, yes, are reflective of the document provided to

13 me by Vivint.

14 Q Okay. And so kind of going down, I scrolled

15 down a little bit while we were talking, but at the top

16 of page 18, utilizing those two numbers, the 55.19 and

17 the 1,091, you present what you contend is a more

18 reasonable budget expense per customer, that it's likely

19 within this range of 55.19 and 1,091; is that correct?

20 A The per-customer amount, yes.

21 Q Okay. And so once you determine -- I mean, do

22 you have an opinion as to where between $55.19 and

23 $1,091 that marketing expense should fall?

24 MR. BROWN: Object to form.

25 THE WITNESS: No.

Page 129

1 BY MR. ROHNER:

2 Q Have you done any kind of analysis to

3 determine as between $55.19 per customer and $1,091 per

4 customer, that the cost -- the budgeted expense per

5 customer should fall?

6 A No. But I do note that, you know, you will

7 note that the results of these calculations on this page

8 are similar to the results of the possible lost profit

9 and possible unjust revenue calculations that we talked

10 about earlier. So, you know, it's not fair to say that

11 I haven't done anything because I've at least compared

12 and reconciled these numbers with those other

13 calculations.

14 Q Right. Well, I guess my question is more as

15 between the low estimate, the lowest estimate you have

16 on this page 18, and the highest estimate you have on

17 this page 18, have you done any kinds of analysis to

18 make a determination as to where, in your opinion, that

19 number should fall?

20 MR. BROWN: Object to form.

21 THE WITNESS: No.

22 BY MR. ROHNER:

23 Q Why not?

24 A Well, the assignment I had and the purpose of

25 this report is to review and address the calculations

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1 and opinions in the Winer report. Based on the highest

2 number from these potential calculations, I can -- you

3 know, anyone can reasonably see that these numbers are

4 substantially less than the 10 million proposed and

5 presented in the Winer report. I didn't go any further

6 because I didn't really think that there was much more

7 needed to indicate that the Winer report calculation is

8 unreasonable.

9 Q Okay. Now, the high value you have on

10 page 18, so the maximum amount you've identified, is the

11 $523,800; is that correct?

12 A Yes.

13 Q And that's based on there only being proof of

14 480 customers being impacted; correct?

15 MR. BROWN: Object to form.

16 THE WITNESS: I believe it's correct, yes.

17 BY MR. ROHNER:

18 Q It's 480 times the high end of your estimate

19 which was $1,091; correct?

20 MR. BROWN: Object to form.

21 THE WITNESS: I believe that's correct, yes.

22 BY MR. ROHNER:

23 Q Right. And that 480 number is tied -- is

24 based exclusively on the 24 customer complaints that

25 Dr. Winer references in his report; right?

Page 131

1 MR. BROWN: Object to form.

2 THE WITNESS: Yes.

3 BY MR. ROHNER:

4 Q Okay. So using this same calculation, this

5 same analysis, if the evidence were to show that there

6 were hundreds of complaints about Vivint sales conduct

7 as opposed to 24, would you agree that that would

8 significantly increase the maximum value of the

9 advertising campaign that you reference in your report?

10 MR. BROWN: Object to form.

11 THE WITNESS: Yeah. I guess hypothetically,

12 you know, to be fair, if, you know, the jury or the

13 trier of fact found that a corrective advertising

14 campaign needed to address a larger number of customers,

15 then that -- this would be a reasonable way to quantify

16 the corrective advertising -- the cost of the corrective

17 advertising needed. But I think further analysis would

18 need to be done to determine if it's the $55.19 per

19 customer or the $1,091 per customer.

20 BY MR. ROHNER:

21 Q Okay. And you haven't done that analysis?

22 A At this point, no.

23 Q Okay. And you don't have an opinion as to how

24 many customers were actually impacted; correct?

25 A Yeah. I think that's the trier of fact's

Page 132

1 role, right, is to determine how many people were

2 actually impacted. But I guess from my review of the

3 information presented in the Winer report, it appears

4 that even some of the 24 customers may not have been

5 deceived or confused or, you know, lost to CPI.

6 Q Is it possible to do a corrective -- well, let

7 me ask a different question. Hold on.

8 You understand that Vivint is in -- it's in

9 part in the business of securing customers through

10 door-to-door sales; correct?

11 A I understand that that is one marketing tactic

12 employed by Vivint.

13 Q Right. And you understand that as part of

14 that process, teams of salespeople work in certain

15 geographic areas and essentially go door to door to

16 solicit customers; correct?

17 A Yes. That's basically my understanding of the

18 door-to-door sales process.

19 Q Right. And does it strike you as fair that

20 when sales people are going door to door, that the

21 pitches and methodologies they use to present to

22 potential customers are, you know, generally consistent?

23 MR. BROWN: Object to form. Vague.

24 THE WITNESS: Yeah, I don't have any opinions

25 on that.

Page 133

1 BY MR. ROHNER:

2 Q Okay. Would it surprise you that a

3 salesperson that's trained to go door to door presents a

4 similar, for lack of a better term, pitches to potential

5 customers?

6 MR. BROWN: Same objection.

7 THE WITNESS: I guess would it surprise me

8 that they use a similar pitch each time they go door to

9 door? I mean, I guess I don't -- yeah, I don't really

10 have an opinion on that.

11 BY MR. ROHNER:

12 Q Okay.

13 A I was trying to decipher your question there.

14 Q You know, you're not the first to have

15 struggled to decipher my question.

16 A Well, it probably won't be the last time today

17 either, right?

18 Q No. Probably not.

19 Well, when you're trying -- when you're

20 determining how to apply a corrective -- well, let me

21 ask a better question. The numbers you've utilized

22 for -- for coming up with what you say is a more

23 reasonable corrective marketing campaign, is tied to

24 customers that can -- a number of customers that can

25 actually be identified as having been impacted; correct?

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1 MR. BROWN: Object to form.

2 THE WITNESS: Well, I mean, that's based on my

3 experience and, you know, study and education, that's --

4 a critical element of the corrective advertising

5 calculation. I mean, there's essentially two parts to

6 it: What's the size of the audience, and then what's

7 the cost to reach that audience.

8 BY MR. ROHNER:

9 Q And the size that you're using is the size

10 that's based on 24 complaints that are referenced in the

11 Winer report; correct?

12 MR. BROWN: Object to form.

13 THE WITNESS: Correct. Yeah. The 24 comes

14 from the Winer report.

15 BY MR. ROHNER:

16 Q And ultimately, the size that will be applied

17 with respect to determining a damage calculation is

18 going to be the number that a jury decides were impacted

19 by the conduct; correct?

20 MR. BROWN: Object to form. Improper

21 hypothetical.

22 THE WITNESS: You know, I -- I suppose that

23 that's one way that the number could be derived, right,

24 that the jury would just come up with a number.

25 ///

Page 135

1 BY MR. ROHNER:

2 Q Well, and also, that there may be evidence

3 that's presented at trial that suggests that there were

4 more than 24 customers who were impacted by wrongful

5 conduct; is that fair?

6 A You know, I don't know what you're going to

7 present or what's going to be presented at trial. But

8 yeah, I mean, I guess if there is additional evidence,

9 then, you know, that evidence would have to be reviewed

10 and analyzed and the jury would make a determination if

11 they -- there was impact.

12 Q Now, if Vivint doesn't keep track of the

13 customers that they actually approach and doesn't keep

14 track of the revenue they receive in the geographic

15 regions where they work, is it possible to truly

16 determine the total number of potential customers who

17 are impacted by the wrongful conduct and that might

18 require corrective advertising?

19 MR. BROWN: Object to form.

20 THE WITNESS: Hypothetically, I imagine

21 there -- there could be. I guess I haven't seen

22 somebody attempting other approaches other than just

23 kind of saying, "Well, Vivint didn't tell us, so we

24 can't do it."

25 ///

Page 136

1 BY MR. ROHNER:

2 Q I just want to make sure I understand your

3 answer. You said, "Vivint didn't tell us and we didn't

4 do it." Can you tell me Vivint didn't tell us what and

5 we didn't do what?

6 MR. BROWN: Object to --

7 THE WITNESS: Now, I guess --

8 MR. BROWN: Wait. Hold on. Object to form.

9 Mischaracterizes the witness's testimony.

10 If you can answer the question, proceed.

11 THE WITNESS: I was referring to the

12 hypothetical we were working in where you were

13 explaining information that Vivint had -- that you

14 stated Vivint hasn't provided, and I was -- my comment

15 was -- yeah. How do I say it in a more clear way? That

16 I haven't seen any analysis from the plaintiff's experts

17 that they attempted to resolve that issue by using

18 alternative forms of data.

19 BY MR. ROHNER:

20 Q Okay. You can't say and you don't know who --

21 what number of CPI customers were actually affected by

22 the alleged wrongful conduct; correct?

23 A I haven't seen any analysis that shows that,

24 no.

25 Q And you haven't done your own analysis?

Page 137

1 A No. I wasn't asked to.

2 Q Okay. I'm going to direct your attention to

3 one of your schedules. Got it. Okay.

4 This is Schedule 3. We were looking at this,

5 I think, a little earlier. Maybe we --

6 A I don't think we've looked at this other than

7 scrolling past it.

8 Q Got it. So what I want to understand is you

9 have here at the bottom, you have a section called

10 "Impact of Alternative Inputs."

11 Do you see that?

12 A I do.

13 Q And I want to make sure I understand kind of

14 what these alternative inputs are that you're plugging

15 in and the basis for them. Okay?

16 I assume that at the top of these -- each of

17 these columns is the input that Dr. Winer used; is that

18 right?

19 A Yes.

20 Q The one that -- and this -- I don't know what

21 the exhibit eventually will look like, but what I'm

22 looking at right now has -- there are blue-colored

23 numbers and then there's a grayed -- gray or black

24 number. And at the top of each of these, for "Customer

25 Count," for "Salary," for "CPI Marketing," the black

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1 number at the top is the input that Dr. Winer used;

2 correct?

3 A Yes.

4 Q Okay. And so looking at "Customer Count," I

5 see that the input he used was 202,000. Then you have

6 three alternatives. You have the 24 customers, and

7 that's the 24 customer complaints that are referenced in

8 Dr. Winer's report; correct?

9 A The 24 transcripts, yes.

10 Q Okay. And then the next count is 480

11 customers. That's multiplying the 24 customers by 20

12 pursuant to that 5 percent-95 percent ratio; correct?

13 A Yes.

14 Q Okay. Now, on the results side, the results

15 under both the 24 and the 480 are the same, so the first

16 question I have is: Is that a mistake or is there

17 something I'm missing?

18 A I don't believe it's a mistake. As I recall,

19 we kind of questioned how that happened too, but what's

20 happening is the -- there's kind of -- the way the Winer

21 report corrective advertising calculation is built, it

22 defaults to a minimum amount because of the 25 percent

23 addition. So under a certain customer count, the

24 number -- the cost to do the campaign no longer has any

25 impact on the total result of the two-part calculation.

Page 139

1 Q Okay. I think I understand that. I may have

2 to come back to that. So your testimony is that that's

3 a product of the actual computation that Dr. Winer does

4 or that the equation he used for that calculation; is

5 that fair?

6 A Yeah. In other words, each table there

7 represents what would happen if you change one and only

8 one of the inputs in the Winer calculation or the

9 form -- the complete formula presented in the Winer

10 report.

11 Q Okay. Then you have a number 25,000. Where

12 does that number come from?

13 A Just a, you know, placeholder number to show

14 the impact of a slightly larger number but a number less

15 than the total population of CPI's customers.

16 Q Okay. Did you do any kind of analysis in

17 coming up with that placeholder number?

18 A No. It is purely a placeholder number.

19 Q Okay.

20 A I would hope that the table would still work

21 if you picked 15,000 or 50,000.

22 Q Okay. Heading over to the salary -- the

23 74,563, that's the number that Dr. Winer uses; correct?

24 A Yes.

25 Q And then I believe you have a different

Page 140

1 schedule. We can go back to it if needed. But you had

2 a different schedule that used some third-party sources

3 for other potential salaries, including Vivint; correct?

4 A Yes. So yeah. I did some research to find

5 alternative compensation amounts for, you know, what

6 could be relevant benchmarks for the marketing campaign

7 outlined by -- in the Winer report.

8 Q And are you offering an opinion as to which of

9 those potential alternative salaries would be more

10 appropriate than the salary amount used by Dr. Winer?

11 A I don't offer an opinion saying one specific

12 amount is the more appropriate amount, but the opinion

13 I'm offering is that Winer seems to have limited his

14 research to one observation and has not tested the

15 impact of alternative benchmarks or alternative inputs.

16 Q Okay. Whether there are alternative

17 benchmarks or not, have you done any kind of analysis to

18 make a determination as to which benchmark is most

19 appropriate?

20 A Well, from the research presented in this

21 report, it does appear that the number used in the Winer

22 report is at the high end of the observed range -- of

23 the range of research observations.

24 Q Okay. The fact that it's at the high end,

25 does that mean that it's not an appropriate input --

Page 141

1 A No. I didn't say that. I said that's an

2 observation.

3 Q Okay. So you don't have an opinion as to

4 which of the various inputs is appropriate?

5 A Correct.

6 Q Okay. The next column you have is the "CPI

7 Marketing." Now, I assume that's a reference to a CPI

8 marketing budget?

9 A Correct. Yes.

10 MR. BROWN: I'm sorry. I didn't -- I wasn't

11 sure if that question was over. Just let me object to

12 form on that one.

13 BY MR. ROHNER:

14 Q When you say "CPI marketing," you're referring

15 to CPI's marketing budget?

16 A Yeah. It's explained on this page a little

17 higher up. It says "Marketing Budget based on

18 Plaintiff's responses the Defendant's RFPs (per the

19 Winer Report, page 41, footnote 87)." And then, you

20 know, I do look at Schedule 1, the average annual

21 marketing cost reported is 15.3 million, but the Winer

22 report uses 15.5 in its calculation. So the table at

23 the bottom right of this page is the impact of using an

24 alternative input.

25 Q Got it. And so the first input down is

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1 2.5 million. What's the basis for that as an

2 alternative input?

3 A I've put in numbers that are all lower than

4 the 15.5 because I understand from CPI's limited, you

5 know, summary financial results that 15.5 would be the

6 marketing budget related to all of CPI's marketing

7 activities for all of their business segments. And

8 since the alleged wrongful actions occurred only in

9 the -- or appeared to have occurred only in the home

10 segment for CPI, it would be reasonable to presume that

11 some of CPI's marketing expenses, some of the

12 15.3 million marketing expenses are expenses in support

13 of operations outside the residential or home

14 marketplace.

15 Q You've done -- you haven't done any analysis

16 of CPI's marketing budget to differentiate between your

17 2.5 million, your 5 million, and your 10 million as to

18 what, in your view, would be the appropriate number to

19 use for the 25 percent calculation?

20 A Yeah. I didn't receive any information that

21 specified what CPI's marketing budget for its home

22 segment is or was. Those numbers are placeholders. The

23 intent is not to show the impact of the specific number

24 but the range of possible results from using an

25 alternative input.

Page 143

1 Q Hold on a second. I apologize.

2 I'm pretty close to done, but let me -- why

3 don't we take five minutes and let me go through my

4 notes and make sure.

5 MR. BROWN: Okay.

6 MR. ROHNER: Okay.

7 MR. BROWN: So just for ease, can we say come

8 back at ten after the hour?

9 MR. ROHNER: Yes. Ten after. Perfect.

10 MR. BROWN: Great.

11 THE VIDEOGRAPHER: We're going off the record.

12 The time is 2:02 p.m.

13 (Off the record.)

14 THE VIDEOGRAPHER: We are going on the record.

15 The time is 2:13 p.m.

16 BY MR. ROHNER:

17 Q Okay. I do still have a few more questions,

18 but I don't expect that it's going to take very long.

19 So I -- hopefully, you're seeing -- I think

20 I'm screen sharing. I've pulled up page 20 of the

21 report. And I want to ask you specifically about one of

22 the alternatives you identify for a corrective

23 advertising campaign, concerns utilizing different

24 methods to communicate with customers than door-to-door

25 sales.

Page 144

1 Do you recall that portion of your opinion?

2 A More or less, yes.

3 Q Yeah. And if you'll look at the top of the

4 first full paragraph of this page 21 of your report, it

5 says "Rather than build a door-to-door marketing

6 function, a combination of email, letters, online

7 communications, and phone calls could achieve an

8 equivalent amount of customer contact and communication

9 at less cost, using less expensive resources."

10 My first question is: What kind of analysis

11 did you do to make the determination that a combination

12 of emails, letters, online communications, and phone

13 calls would achieve an equivalent amount of customer

14 contact?

15 A As I said, I said it "could." I don't know

16 that it would or it wouldn't. But it's not something

17 that's explored in the Winer report, so I'm merely

18 offering this up as a critique of Winer's reliance on

19 one calculation mechanism.

20 Q But sitting here today, you don't have an

21 opinion as to whether or not using a combination of

22 email, letters, online communications, and phone calls

23 would, in fact, achieve an equivalent amount of customer

24 contact; correct?

25 MR. BROWN: Object to form.

Page 145

1 THE WITNESS: I guess further analysis would

2 need to be done to make sure that is correct, but

3 it's -- the critique here is that the Winer report

4 didn't explore that.

5 BY MR. ROHNER:

6 Q And at this point, you haven't explored that

7 either; correct?

8 MR. BROWN: Object to form.

9 THE WITNESS: I have not been asked to develop

10 that type of analysis at this point.

11 BY MR. ROHNER:

12 Q Okay. In determining whether email, letters,

13 online communications, and phone calls would be

14 sufficient for corrective advertising, would it be

15 relevant to you what Vivint does when they learn the

16 customer of theirs might have received deceptive

17 information from a competitor?

18 A I think --

19 MR. BROWN: Object to form. Hold on. Object

20 to form. You can go ahead.

21 THE WITNESS: Sorry.

22 I guess you said, "Would it be relevant to

23 know what Vivint does?" Did you mean CPI or Vivint?

24 BY MR. ROHNER:

25 Q I meant Vivint.

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1 A Oh, okay. Can you just rephrase your question

2 again? I kind of got hung up and I thought you used the

3 wrong name.

4 Q Sure. In determining whether emails, letters,

5 online communications, and phone calls could achieve an

6 equivalent amount of customer contact, would it be

7 relevant to you what Vivint does when they learn that a

8 customer may have received deceptive information from a

9 competitor?

10 MR. BROWN: Object to form.

11 THE WITNESS: I guess I don't know how to

12 answer that. I did not explore what Vivint does if

13 Vivint feels one of Vivint's customers was approached

14 with a deceptive sales practice. It was not a topic

15 that I looked into.

16 BY MR. ROHNER:

17 Q If the evidence were to show that Vivint had a

18 team of salespersons that they flew to areas where they

19 learned that a third party -- a third-party competitor

20 was deceptively stealing clients, stealing customers, in

21 order to have those salespersons speak with the

22 customers directly in person, would that be relevant to

23 your determination as to whether emails, letters, online

24 communications, and phone calls are equivalent to

25 face-to-face meetings?

Page 147

1 MR. BROWN: Object to form.

2 THE WITNESS: I don't think I can answer that

3 without kind of understanding more about the -- the

4 tactic or the processes that you're alluding to.

5 BY MR. ROHNER:

6 Q Okay. And to date, that's not any kind of

7 analysis that you've done?

8 A Yeah. I haven't --

9 MR. BROWN: Object to form.

10 THE WITNESS: I haven't -- I haven't done

11 that. That's --

12 BY MR. ROHNER:

13 Q Sorry. I'm scrolling ahead here for a couple

14 more questions.

15 The lettering on this Schedule 5 is pretty

16 small, so I've blown it up. Hopefully you can read it.

17 A I can read it. Yes.

18 Q Okay. And so this is Schedule 5 to your

19 report. And I -- first, tell me what this is.

20 A This is a review of the 24 transcripts that

21 are attached to and cited in the Winer report.

22 Q Okay. Did you just review the transcripts, or

23 did you also listen to the recordings as well?

24 A I believe I relied on -- I only had the

25 transcripts.

Page 148

1 Q Okay. And you looked at these transcripts and

2 created this schedule to summarize indications of

3 possible harm alleged to have been inflicted by Vivint;

4 is that fair?

5 MR. BROWN: Object to form.

6 THE WITNESS: Yeah. For the most part, yes.

7 BY MR. ROHNER:

8 Q Right. And so you reviewed the transcripts,

9 among other things, to see if the transcripts confirmed

10 that there was actually or possibly a communication by a

11 Vivint salespeople associating themselves with CPI;

12 correct?

13 MR. BROWN: Object to form. Lack of

14 foundation.

15 THE WITNESS: Yeah. I mean, you said I

16 reviewed the transcripts amongst other things. I mean,

17 this schedule is based entirely on the transcripts.

18 BY MR. ROHNER:

19 Q Okay.

20 A The --

21 Q And --

22 MR. BROWN: Let him finish the answer.

23 Go ahead.

24 THE WITNESS: And yeah. This is a schedule

25 that is my review of the text in those transcripts.

Page 149

1 BY MR. ROHNER:

2 Q You did your own independent analysis of the

3 text in those transcripts; correct?

4 A Yeah. I guess I wouldn't call it -- I mean,

5 whatever you want to call it. I mean, I looked at the

6 comments in the transcripts and looked for statements

7 that indicated confusion or statements that indicated an

8 implied association by the Vivint rep with the -- or

9 somehow affiliated with CPI. I looked to see if the --

10 if there was evidence from the transcript that the

11 specific customer who called in for that transcript left

12 CPI and went to Vivint. And, you know, to the extent

13 possible, looked through the commentary in the

14 transcript to see if, you know, some perception of the

15 customer's from what they had said in the transcript

16 warranted a corrective advertising effort.

17 Q And as part of that analysis, your conclusion

18 with respect to statements reflecting association with

19 CPI was that 17 of the 24 either possibly or in fact

20 reflected associated with CPI in the transcript?

21 MR. BROWN: Object to form.

22 THE WITNESS: Correct. In other words, the --

23 I counted in the 17 any time it looked -- there was even

24 a hint of association.

25 ///

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1 BY MR. ROHNER:

2 Q Okay. And that's -- so based on your

3 analysis, 17 of the 24 included at least a hint of

4 association with CPI; correct?

5 MR. BROWN: Object to form.

6 THE WITNESS: Yes. And you've got to also

7 realize that this is just a review of the text in the

8 transcripts. I haven't seen or heard other interactions

9 between CPI and these same customers, if some exist, or,

10 you know, if the transcript is as accurate transcription

11 of the actual call. But subject to those provisions,

12 yeah, based on the text alone, if there was some hint of

13 an association.

14 BY MR. ROHNER:

15 Q Right. And you also haven't reviewed any

16 transcripts of communications between Vivint and

17 customers that claimed that Vivint engaged in deceptive

18 practices or associated themselves with CPI; correct?

19 A Yeah. I'm not aware of such information.

20 Q Okay. I have nothing further.

21 MR. BROWN: Okay. We will read, and we will

22 order a transcript. The -- hopefully we have a standing

23 order. If we do not, then go -- please reach out to

24 Paula Castro and she'll tell us -- tell you what we --

25 what our order is.

Page 151

1 THE COURT REPORTER: Thank you.

2 THE VIDEOGRAPHER: Should we go off the record

3 now?

4 MR. ROHNER: Yes.

5 (Whereupon, at 2:25 p.m. the deposition was

6 concluded.)

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Page 152

1 COURT REPORTER'S CERTIFICATE

2

3 STATE OF CALIFORNIA:

4 I, Katherine West, RPR, Certified Shorthand

 Reporter in and for the State of California, do hereby

5 certify:

 That the witness in the foregoing deposition was by

6 me first duly sworn to testify the truth, the whole

 truth, and nothing but the truth in the foregoing cause;

7 that the deposition was taken before me at the time and

 place herein named; that said deposition was reported by

8 me in shorthand and transcribed, through computer-aided

 transcription, under my direction; and that the

9 foregoing transcript is a true record of the testimony

 elicited at proceedings had at said deposition to the

10 best of my knowledge, skills, and ability to discern

 testimony via videoconference transmission.

11 I do further certify that I am a disinterested

 person and am in no way interested in the outcome of

12 this action or connected with or related to any of the

 parties in this action or to their respective counsel.

13 In witness whereof, I have hereunto set my hand

 this 27th day of October, 2021.

14

15

16

17

18 <%26652,Signature%>

 Katherine West, RPR

19 CSR No. 14386

 Expiration: December 31, 2021

20

21

22

23

24

25

Page 153

1 Joshua Brown, Esq.

2 brownjr@gtlaw.com

3 October 28, 2021

4 RE: CPI Security Systems, Inc, v. Vivint Smart Home, Inc.

5 10/8/2021, Brian Buss (#4811576)

6 The above-referenced transcript is available for

7 review.

8 Within the applicable timeframe, the witness should

9 read the testimony to verify its accuracy. If there are

10 any changes, the witness should note those with the

11 reason, on the attached Errata Sheet.

12 The witness should sign the Acknowledgment of

13 Deponent and Errata and return to the deposing attorney.

14 Copies should be sent to all counsel, and to Veritext at

15 erratas-cs@veritext.com

16

17 Return completed errata within 30 days from

18 receipt of testimony.

19 If the witness fails to do so within the time

20 allotted, the transcript may be used as if signed.

21

22 Yours,

23 Veritext Legal Solutions

24

25

39 (Pages 150 - 153)

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Case 1:20-cv-23391-JG Document 125-1 Entered on FLSD Docket 01/24/2023 Page 40 of 75
Page 154

1 CPI Security Systems, Inc, v. Vivint Smart Home, Inc.

2 Brian Buss (#4811576)

3 E R R A T A S H E E T

4 PAGE_____ LINE_____ CHANGE________________________

5 __________________________________________________

6 REASON____________________________________________

7 PAGE_____ LINE_____ CHANGE________________________

8 __________________________________________________

9 REASON____________________________________________

10 PAGE_____ LINE_____ CHANGE________________________

11 __________________________________________________

12 REASON____________________________________________

13 PAGE_____ LINE_____ CHANGE________________________

14 __________________________________________________

15 REASON____________________________________________

16 PAGE_____ LINE_____ CHANGE________________________

17 __________________________________________________

18 REASON____________________________________________

19 PAGE_____ LINE_____ CHANGE________________________

20 __________________________________________________

21 REASON____________________________________________

22

23 ________________________________ _______________

24 Brian Buss Date

25

Page 155

1 CPI Security Systems, Inc, v. Vivint Smart Home, Inc.

2 Brian Buss (#4811576)

3 ACKNOWLEDGEMENT OF DEPONENT

4 I, Brian Buss, do hereby declare that I

5 have read the foregoing transcript, I have made any

6 corrections, additions, or changes I deemed necessary as

7 noted above to be appended hereto, and that the same is

8 a true, correct and complete transcript of the testimony

9 given by me.

10

11 ______________________________ ________________

12 Brian Buss Date

13 *If notary is required

14 SUBSCRIBED AND SWORN TO BEFORE ME THIS

15 ______ DAY OF ________________, 20___.

16

17

18 __________________________

19 NOTARY PUBLIC

20

21

22

23

24

25

40 (Pages 154 - 155)

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&

& 3:4,16 25:24

0

00504 1:6 5:15

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10/8/2021 153:5

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1300 3:17

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66:12

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2 4:10 13:24 14:4

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137:4

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32801 3:13

35 65:8

3:20 1:6 5:15

4

407.420.1000 3:14

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6

6 4:5 78:3 93:5

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7

74,563 139:23

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8 1:17 2:4 5:1,6

801.322.2516 3:18

80202 3:7

84111 3:18

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89 65:13 108:15

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9.5 118:21 122:20

95 94:1,9,15 95:12

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155:12

c

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68:21 69:3,9,18

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139:4,8 141:22

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calling 60:15,17

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common 116:15

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course 80:15

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critical 134:4

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date 16:12 19:2

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documents 44:4

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Case 1:20-cv-23391-JG Document 125-1 Entered on FLSD Docket 01/24/2023 Page 73 of 75
Federal Rules of Civil Procedure

Rule 30

(e) Review By the Witness; Changes.

(1) Review; Statement of Changes. On request by the 

deponent or a party before the deposition is 

completed, the deponent must be allowed 30 days 

after being notified by the officer that the 

transcript or recording is available in which:

(A) to review the transcript or recording; and

(B) if there are changes in form or substance, to 

sign a statement listing the changes and the 

reasons for making them.

(2) Changes Indicated in the Officer's Certificate. 

The officer must note in the certificate prescribed 

by Rule 30(f)(1) whether a review was requested 

and, if so, must attach any changes the deponent 

makes during the 30-day period.

DISCLAIMER: THE FOREGOING FEDERAL PROCEDURE RULES 

ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY. 

THE ABOVE RULES ARE CURRENT AS OF APRIL 1, 

2019. PLEASE REFER TO THE APPLICABLE FEDERAL RULES 

OF CIVIL PROCEDURE FOR UP-TO-DATE INFORMATION. 

Case 1:20-cv-23391-JG Document 125-1 Entered on FLSD Docket 01/24/2023 Page 74 of 75
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