UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF FLORIDA 

MIAMI DIVISION 

Case Number: 20-23391-CIV- GOODMAN 

[Consent Case] 

ADT LLC; and The ADT Security 

Corporation, 

Plaintiffs/Counterclaim Defendants, 

v. 

Vivint Smart Home, Inc. f/k/a Mosaic 

Acquisition Corp.; and Legacy Vivint Smart 

Home, Inc. f/k/a Vivint Smart Home, Inc., 

Defendants/Counterclaimants. 

/ 

ADT’S OPPOSITION TO VIVINT’S MOTION 

TO EXCLUDE DR. RUSSELL S. WINER 

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Almost identical to his opinions admitted in CPI Security Services, Inc. v. Vivint Smart 

Home, Inc., Case No. 3:20-CV-00504-FDW-DSC (W.D. N.C.), and very similar to his testimony 

admitted and repeatedly reaffirmed by the court in PODS Enterprises, LLC v. U-Haul Int’l, Inc., 

126 F. Supp. 3d 1263, 1283 (M.D. Fla. 2015), in this case Dr. Winer offers opinions to assist the 

jury in assessing whether and in what amount ADT has been damaged by Vivint’s widespread 

deceptive sales practices directed at ADT’s customers in largely undocumented, in-person 

interactions throughout the United States. Dr. Winer derived his opinions by applying generallyaccepted marketing principles and peer-reviewed academic literature regarding consumer 

complaint behavior and the value of brands to the unique facts of the case. He explains how and 

why Vivint’s conduct has damaged ADT’s brand and reputation, and how and why that damage 

extends far beyond the specific customers who have called ADT to report Vivint’s misconduct 

under the “tip of the iceberg” concept—a doctrine supported by Vivint’s own internal documents 

analyzing consumer behavior, and uncontroverted by Vivint’s rebuttal expert, Brian Buss.1 In 

fact, in cases Vivint has prosecuted against competitors for the same conduct ADT alleges 

against Vivint here, Vivint has gone so far as to claim that this principle is so uncontroversial it 

is capable of judicial notice: 

1

 (See Buss Dep., CPI v. Vivint, Ex. A, 96:17-99:15.) Notably, Buss is not a marketing expert; 

he’s a CFA with a BA in Biology & Economics and an MBA. He has no expertise within the 

fields of marketing, branding, and consumer behavior. 

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(Vivint Mot. for Prelim. Inj., Vivint, Inc. v. Elite Security, Ex. B, at 4 n.1.) 

At base level, Dr. Winer opines that Vivint’s dissemination of false and misleading 

information to ADT’s customers over multiple years has damaged ADT’s brand and reputation 

in significant ways, even if the full impact of the conduct may be difficult to circumscribe. Dr. 

Winer also opines that correcting the misinformation introduced by Vivint’s 4,000+ strong 

salesforce would, by necessity, require broad remedial messaging, including through the same 

in-person marketing channel in which Vivint has spread the falsities, in order to both identify the 

recipients of Vivint’s misinformation and correct the varied types of misimpressions implanted 

by Vivint’s salesforce. The fact that the exact number and identities of the ADT customers 

affected by Vivint’s conduct cannot be known with any precise arithmetic is not a failing of 

Winer’s opinions, as Vivint argues. Instead, it is one of the very reasons his opinions are helpful 

to the jury’s understanding of the issues in trying to determine the breadth, scope, and impact of 

Vivint’s conduct on ADT. 

Dr. Winer endorses a remedy that Vivint tacitly concedes has been approved not only by 

the Eleventh Circuit but also by many courts beyond it in considering damages under the 

Lanham Act and related unfair competition claims. Rather than engaging in the highlyspeculative guessing-game proposed by Vivint’s rebuttal expert, which requires the creation and 

comparison of past and present brand valuations and venturing as to innumerable factors that 

may have contributed to any change in value over time, Dr. Winer considers what, specifically, 

the cost would be to correct the misinformation introduced by Vivint into the marketplace—that 

is, through a “corrective advertising” or, more aptly here, a “remedial information” campaign. In 

calculating the costs to run such a campaign, Dr. Winer’s methodology entails plugging in 

verifiable inputs into demonstrable formulas in just the type of way contemplated by Daubert 

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and Rule 702. 

Vivint does not challenge Dr. Winer’s impeccable qualifications; it would be futile to do 

so. Instead, Vivint tilts at windmills—slaying imaginary giants that Vivint misconstrues within 

Dr. Winer’s opinions, the law, or both. But just as the CPI and PODS courts recognized in 

admitting Dr. Winer’s prior opinions, and as the Eleventh Circuit has also repeatedly instructed, 

the types of attacks Vivint mounts are, at most, “directed to credibility and inferences the jury 

could [draw] from the evidence;” they are not bases for exclusion. PODS Enterprises, 126 F. 

Supp. 3d at 1283. And to the extent Vivint identifies bona fide challenges associated with 

correcting the damages flowing from its misconduct, the law charges those challenges against 

Vivint the wrongdoer, not ADT the victim. 

ARGUMENT 

The Eleventh Circuit cautions that “the rejection of expert testimony is the exception 

rather than the rule.” Moore v. Intuitive Surgical, Inc. 995 F.3d 839, 851 (11th Cir. 2021) 

(reversing exclusion of expert and citing Fed. R. Evid. official notes). “‘The presumption is that 

expert testimony is admissible, so that once a proponent has made the requisite threshold 

showing, further disputes go to weight, not admissibility.’” Simmons v. Ford Motor Co., 576 F. 

Supp. 3d 1136, 1140 (S.D. Fla. 2021). In exercising its “gatekeeping” role, therefore, the trial 

court “must remain chary not to improperly use the admissibility criteria to supplant a plaintiff’s 

right to a jury trial: ‘Vigorous cross-examination, presentation of contrary evidence, and careful 

instruction on the burden of proof are the traditional and appropriate means of attacking shaky 

but admissible evidence.’” Moore, 995 F.3d at 850 (quoting Daubert). Vivint fails to show that 

Dr. Winer’s opinions are exceptionally unreliable requiring wholesale exclusion. 

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I. The Lanham Act Broadly Permits the Award of “Any Damages Sustained by the 

Plaintiff,” Including Brand Damages and the Costs to Repair Them.

A. Binding precedent permits the remedy—as does the weight of all other authority 

and even the cases cited by Vivint. 

The Lanham Act broadly permits a plaintiff to recover for all forms of damage caused by 

the defendant’s unlawful conduct, including the defendant’s profits, “any damages sustained by 

the plaintiff,” and costs of the action. 15. U.S.C. § 1117(a). Consistent with this broad statutory 

language and in recognition of the Act’s express intent to protect parties “engaged in . . . 

commerce against unfair competition” and to “prevent fraud and deception in such commerce,” 

15 U.S.C. § 1127, courts have recognized a wide breadth of available remedies. As the Eleventh 

Circuit has put it, the Lanham Act “is, of course, useless in many instances if damages for the 

infringement are not recoverable.” Ramada Inns, Inc. v. Gadsden Motel Co., 804 F.2d 1562, 

1566 n.2 (11th Cir. 1986). Accordingly, “‘damages sustained by the plaintiff’ include ‘all 

elements of injury to the business of the trademark owner proximately resulting from the 

infringer’s wrongful acts’ such as the costs of corrective advertising or injury to business 

reputation or goodwill.” Aronowitz v. Health-Chem Corp., 513 F.3d 1229, 1241 (11th Cir. 2008) 

(quoting Ramada Inns, 804 F.2d at 1564-65). In awarding those damages, the Act confers “wide 

discretion in determining a just amount of recovery.” Ramada Inns, 804 F.2d at 1564-65. 

In line with these principles, the Eleventh Circuit and courts within it have extended the 

Lanham Act’s remedies to damages to a plaintiff’s brand and reputation, even where those 

damages may be difficult to ascertain and even where the estimated costs to correct the damage 

have not yet been expended. For example in Ramada Inns—remarkably, not cited once in 

Vivint’s motion—the Eleventh Circuit affirmed an award of corrective advertising damages 

supported by the testimony of a marketing expert who opined that the defendant’s conduct 

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necessitated broad remedial messaging for the entire Southeastern region of the United States 

where the plaintiff operated—even though the plaintiff had not yet engaged in such campaign. 

804 F.2d at 1564. In affirming that award, the Eleventh Circuit rejected claims, much like 

Vivint’s here, that the expert’s estimates “were too speculative” and based on a campaign that 

was overbroad and “uncertain.” Id. Similarly, in Aronowitz, the Eleventh Circuit affirmed an 

award of damages, based on the testimony of the plaintiff’s chief financial officer, as to the 

estimated costs associated with potential corrective actions that could be used to address the 

confusion created in the marketplace by the defendant’s acts (even though the plaintiff had not 

yet expended such costs). 513 F.3d at 1241. There the plaintiff did not even support the 

damages claim with an expert—testimony from the plaintiff’s CFO was sufficient. See id. 

Vivint fails to distinguish these binding Eleventh Circuit authorities—and fails to even 

cite Ramada Inns at all.2 Instead, Vivint points to case law outside of this Circuit that is either 

inapposite or actually supportive of Dr. Winer’s opinions. 

For example, Vivint cites a 1970s opinion from the Tenth Circuit, Big O Tire Dealers, 

Inc. v. Goodyear Tire & Rubber Co., 561 F.2d 1365 (10th Cir. 1977), one of the first cases ever 

to discuss a rudimentary form of “corrective advertising.” But in Big O Tire, the Tenth Circuit 

actually approved of an award of $678,302 in damages to the trademark-owner plaintiff for 

prospective corrective advertising. Id. at 1375. In fact, the court permitted recovery of such 

damages without any supporting expert testimony, instead sustaining that award based on a crude 

calculation amounting to 25% of the amount spent by defendant Goodyear on the infringing 

2

 In another case not cited by Vivint, this Court awarded prospective corrective advertising 

without regard to prior spend by the plaintiff. See Punch Clock, Inc. v. Smart Software Dev., 553 

F. Supp. 2d 1353, 1359 (S.D. Fla. 2008) (Cohn, J.) (approving $1 million+ in corrective 

advertising damages premised upon the prospective costs of seven years of advertising via 

Google AdWords, the equivalent period of the defendant’s infringement). 

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advertising in the geographic areas in which the plaintiff did business. Id. Indeed, it is this form 

of “corrective advertising” damages—i.e., a blunt percentage of the amount spent by the 

trademark infringer on the infringing activity—which has been criticized by scholars as 

potentially speculative or arbitrary. See, e.g., Terence P. Ross, Intellectual Property Law: 

Damages & Remedies, § 4.03[1], 4-23 to -24 (2015) (discussing how the standard used by the 

Tenth and Eighth Circuits pegging corrective advertising awards to 25% of the infringer’s 

advertising has been criticized by commentators). Here, ADT’s claims are not rooted in an 

across-the-board 25% award of Vivint’s spend in conducting its door-to-door sales program, 

even though that simplistic approach sanctioned by at least two circuit courts would result in 

significant multimillion dollar award in this case. Instead, Dr. Winer presents a specific, itemized 

campaign aimed at fixing the harm resulting from Vivint’s conduct. 

Vivint also cites PBM Products, Inc. v. Mead Johnson & Co., 174 F. Supp. 2d 417, 422 

(E.D. Va. 2001). But there, again, the court actually permitted recovery of estimated corrective 

advertising costs under the Lanham Act over the defendant’s objections that such an award 

would be too speculative because the plaintiff had not yet engaged in the campaign. Id. at 422. 

The plaintiff, PBM, proffered a marketing expert (Armstrong) who opined that correcting the 

false information spread by defendant Mead regarding the plaintiff’s infant formula would 

require $80.3 million in prospective advertising. Id. at 419. Notably, like Dr. Winer’s opinions 

here, PBM’s expert Armstrong opined that the estimated costs for a corrective campaign would 

necessarily be high “because, unlike defendant Mead, PBM did not have an existing sales force, 

it will have to hire and train additional personnel, and it will have to design a comprehensive 

campaign.” Id. at 422-23. Armstrong also opined, similar to Dr. Winer, that it would be more 

difficult and costly to reverse defendant-Mead’s misinformation than it was for Mead to spread 

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it. Id. at 423. Based on those opinions, the court denied Mead’s motion for summary judgment 

on corrective advertising damages and permitted the claims to go to the jury. Id.3

As noted by Terence Ross’s treatise, “Damage awards for prospective advertising now 

have been approved by a number of courts,” and “[t]he trend in the circuit courts is toward 

allowance of damages for the cost of prospective advertising, although with some restrictions 

imposed.”4 Ross, Intellectual Property Law: Damages & Remedies, § 4.03[1], 4-23, -24. For 

example, the Ninth Circuit has recognized (more than once) that corrective advertising costs are 

a form of “compensatory damages” representing the value a trademark has lost due to the 

defendant’s infringement. Adray v. Adry–Mart, Inc., 76 F.3d 984, 988–89 (9th Cir. 1995). 

B. A Florida federal court admitted Dr. Winer’s substantially similar opinions 

supporting the award of $45 million of corrective advertising damages, explicitly 

rejecting the same arguments Vivint raises here. 

Following the binding Eleventh Circuit precedent, just a few years ago in another 

Lanham Act action the Middle District of Florida admitted Dr. Winer’s substantially similar 

opinions relating to the estimated costs to correct potential confusion resulting from a 

defendant’s Lanham Act violations. PODS Enterprises, LLC v. U-Haul Intern., Inc., 126 F. 

Supp. 3d 1263 (M.D. Fla. 2015). There plaintiff PODS prosecuted Lanham Act claims for UHaul’s infringement of the words “pod” and “pods,” registered trademarks of the plaintiff. Id. at 

3

 Vivint’s reliance on Monahan is also unavailing. That court recognized that “[a]ny harm to 

[plaintiff’s] brand caused by this consumer confusion is compensable, and therefore, at least in 

theory, [the plaintiff] could recover the costs of a corrective advertising campaign that would 

effectively repair that harm.” Monahan Prods. LLC v. Sam’s East, Inc., 463 F. Supp. 3d 128, 147 

(D. Mass. 2020) (emphasis added). The court did not permit a corrective advertising remedy 

because the injury alleged was that the defendant’s conduct resulted in the plaintiff’s strollers 

being sold at a discount, not any actual reputational harm. As Dr. Winer opines here, Vivint’s 

conduct has harmed ADT’s brand and reputation, and his remedial campaign is designed to 

rectify that damage. 

4

 The “restrictions imposed” relate to those awards that are premised on a blunt percentage of the 

defendant’s marketing spend, as in Big O Tire. As Ross explains, “There is significant doubt . . . 

as to whether such awards should be based on the advertising expenditures of the infringer.” Id.

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1271. Dr. Winer opined that U-Haul’s actions damaged PODS’s brand by creating a likelihood 

of customer confusion and potential false association between U-Haul’s and PODS’s products. 

Id. at 1282. Dr. Winer also opined, as he does here, that correcting the negative impacts of UHaul’s conduct on the purchasing public would require PODS to engage in a broad remedial 

campaign to correct the potential misimpressions inflicted by U-Haul. Id. Also like his opinions 

in this case, Dr. Winer opined that the campaign would need to be directed at a similar audience 

that potentially received the “misimpressions” from U-Haul’s conduct and that the campaign 

would need to be carried out through the same marketing channel by which the misimpressions 

had been introduced by U-Haul (the internet). Id. at 1283. He further testified that correcting the 

potential misimpressions would actually require more marketing activity than U-Haul’s original 

tortious conduct based on academic literature supporting that it takes at least three times the 

amount of marketing to effectively reach the target audience with an effective corrective 

message that sticks. Id. Using the same methodology he employs in this case, Dr. Winer applied 

data regarding the estimated costs to administer such a campaign and concluded that a reasonable 

corrective advertising campaign would cost PODS approximately $95.4 million. Id. The jury 

ultimately awarded a verdict of $60.7 million, including $45 million in damages tied to the need 

for corrective advertising. Id. at 1271, 1283. 

In admitting Dr. Winer’s opinions and ruling on U-Haul’s post-trial motions, the 

Honorable Senior Judge James D. Whittemore repeatedly rejected U-Haul’s objections, just like 

Vivint’s here, that Dr. Winer’s testimony was unreliable, overbroad, and not permitted by law. 

See id. at 1283-84. Judge Whittemore specifically rejected U-Haul’s claim that an award of 

corrective advertising damages was not permissible because PODS had not shown it had actually 

spent money in an attempt to correct the alleged misimpressions before trial. Id. at 1284. Citing 

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Aronowitz, Judge Whittemore held that the Eleventh Circuit has sanctioned corrective 

advertising damages “without regard to the relevant advertising spent by either party.” Id. Judge 

Whittemore similarly rejected U-Haul’s argument, like Vivint’s here, that Dr. Winer’s 

methodology was overbroad and unreliable because it would result in consumers receiving 

corrective messaging who may never have actually received or become confused by U-Haul’s 

infringing statements, holding that such objections, at most, went to weight and not admissibility. 

Id. at 1283. 

C. The Western District of North Carolina also recently admitted Dr. Winer’s nearlyidentical opinions in a nearly-identical action against Vivint. 

Just as Vivint flouts the binding and most on-point authority in this Circuit, Vivint also 

ignores any discussion of the fact that another federal district court thoroughly vetted and 

admitted Dr. Winer’s nearly identical-opinions in a companion case against Vivint involving 

nearly-identical claims, facts, and theories. CPI Security Services, Inc. v. Vivint Smart Home, 

Inc., Case No. 3:20-CV-00504-FDW-DSC (W.D. N.C.). Vivint’s silence about this authority is 

troubling given that counsel for the parties here are the exact same counsel in CPI v. Vivint. 

Almost exactly as he does in this case, in CPI v. Vivint Dr. Winer opined that: 1) there 

was abundant evidence that Vivint’s sales misconduct harmed CPI’s brand equity; 2) based on 

authoritative research regarding consumer complaints, the available evidence in terms of 

reported complaints represents only the very tip of the iceberg of a widespread phenomenon, 

which by its very nature is difficult to circumscribe; 3) the only way to fully discover all 

recipients of the misinformation spread by Vivint’s sales force through an in-person marketing 

channel (and then correct the misinformation) would be to conduct a similar in-person campaign, 

especially given Vivint’s failure, refusal or inability to provide complete records regarding the 

customers it has visited and the customers who have reported sales misconduct; and 4) for CPI, 

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the costs to conduct such a campaign to attempt to restore CPI’s brand equity would exceed $10 

million.5 (See generally Dr. Winer Rep., CPI v. Vivint, Ex. C.) 

The Honorable Frank D. Whitney received full briefing from the parties and held a 

Daubert hearing on January 10, 2022. In response to the same arguments Vivint raises here, 

Judge Whitney ruled unequivocally that Dr. Winer’s opinions satisfied Rule 702 and were 

admissible on CPI’s claims: 

The testimony of Russell Winer clearly satisfies the requirements of Rule 702. 

[Dr.] Winer derives his opinions by generally accepted marketing principles and 

abundant peer reviewed academic literature. Based on the parties’ testimony, the 

Court finds Dr. Winer’s, ‘remedial information campaign’ is ‘corrective 

advertising’ by a different name. Accordingly, defendant’s motion in limine to 

exclude testimony of Russell Winer pursuant to Rule 702, is denied. 

(CPI v. Vivint, No. 3:20-CV-00504 (W.D. N.C.), Jan. 10, 2022 Hrg. Tr., Ex. D, 45:14-24.) 

Ignoring this ruling completely, Vivint does nothing to explain how or why Judge 

Whitney’s analysis was wrong (it wasn’t), how or why Dr. Winer’s opinions were different 

compelling a different result (they weren’t), or how or why the law applicable to Lanham Act 

remedies in the Fourth Circuit is different than the Eleventh Circuit compelling a different 

outcome (it’s not). Granting Vivint’s motion would not only require this Court to ignore binding 

Eleventh Circuit precedent and the overwhelming weight of authority outside of it, but also to 

pretend that multiple federal district court judges considering Dr. Winer’s substantially similar 

opinions somehow all got it wrong. 

5

 CPI’s customer base is limited to the Southeast United States and largely concentrated in North 

and South Carolina, reducing the scope of the audience requiring a remedial message. 

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II. Contrary to Vivint’s Strawman Arguments, Dr. Winer’s Opinions “Fit,” They are 

Based Upon a Reliable Methodology, and They are Helpful to the Jury’s 

Understanding of Critical Issues.

In support of its prayer to whole-cloth exclude Dr. Winer’s opinions in spite of the 

abundant authority supporting its admissibility, Vivint constructs a series of strawman arguments 

that misconstrue Dr. Winer’s actual opinions and methodology, and the law. Indeed, Dr. Winer’s 

opinions are specifically tailored to remedy the harm resulting from Vivint’s door-to-door sales 

misconduct. The opinions “fit,” Seamon v. Remington Arms Co., LLC, 813 F.3d 983, 988-89 

(11th Cir. 2016), and they are both reliable and helpful to the jury’s understanding of significant 

issues in this case. Id.; see also City of St. Petersburg v. Total Containment, Inc., 2009 WL 

3335013 at *12 (S.D. Fla. Mar. 19, 2009). 

A. Dr. Winer’s opinions elucidate the difficulty of ascertaining and correcting the full 

scope damages resulting from Vivint’s conduct, and yet his cost-to-correct opinion 

is still grounded in a reliable and clearly-articulated methodology. 

As explained thoroughly in his 124-page report, Dr. Winer’s opinions embrace the 

difficulty of quantifying the damage to ADT resulting from Vivint’s misconduct. In fact, Dr. 

Winer’s opinions are helpful in showing just how hard (or even impossible) it is to determine the 

full scope of those who have been affected by Vivint’s misinformation and to correct the 

resulting damage. To summarize, Dr. Winer opines that: 

 Vivint’s actions have harmed ADT’s brand equity, as supported by abundant 

evidence of customer confusion resulting from Vivint’s conduct which is 

geographically widespread and numerically voluminous, especially considering wellaccepted underreporting phenomena. 

 Vivint’s failure or refusal to document the universe of ADT customers its 4,000+ 

door-to-door sales people have visited over the relevant 5+ year timespan, as well as 

the customers who have reported deceptive sales practices by Vivint’s salesforce to 

Vivint, contributes to the challenge of identifying the recipients of Vivint’s 

misinformation requiring a remedial message. (In fact, if Vivint had complete and 

reliable information, Dr. Winer would have used that to help determine which 

consumers may require remedial messaging.) 

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 Especially given Vivint’s professed ignorance of the affected ADT customers, any 

remedy to adequately restore ADT’s brand equity would, by necessity, need to be 

broad in order to effectively identify recipients of the misinformation and administer 

a corrective message. 

 The conduct in this case—lies and misstatements by highly-trained sales people 

intended to deceive unsuspecting consumers through unsolicited sales visits—is by its 

very nature extremely difficult if not impossible to circumscribe. The only way to 

actually reach the potential recipients and administer a corrective message would be 

through the same in-person sales channel in which the misinformation was spread, 

which would allow for the necessary individualized conversations to correct Vivint’s 

misstatements.6

It is a fundamental tenet of damages law both generally and under the Lanham Act that 

where the tortfeasor’s conduct makes it difficult to pinpoint or prove the scope of damage, that 

difficulty is construed against the wrongdoer—not the victim—and does not preclude recovery. 

E.g., Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 563 (1931). For 

example in Ramada Inns, the case ignored entirely by Vivint’s motion, the Eleventh Circuit 

recognized that “Lanham Act damages may be awarded even when they are not susceptible to 

precise calculations.” 804 F.2d at 1565 (emphasis added). The court explained: 

Where the wrong is of such a nature as to preclude exact ascertainment of the 

amount of damages, plaintiff may recover upon a showing of the extent of 

damages as a matter of just and reasonable inference, although the result may be 

only an approximation. The wrongdoer may not complain of inexactness where 

his actions preclude precise computation of the extent of the injury. 

Id. (internal citations to Supreme Court precedent omitted); Howard Johnson Co., Inc. v. 

Khimani, 892 F.2d 1512, 1520 (11th Cir. 1990) (same). “[D]amages are not rendered uncertain 

because they cannot be calculated with absolute exactness. It is sufficient if a reasonable basis of 

6

 Notably, at least for a period of time, Vivint itself deployed an in-person force known as the 

“SWAT” team in response to reports of deceptive sales practices by Vivint competitors around 

the country. (See Dep. of Jason Corbridge, Ex. E, 38:18-40:8.) As one former employee 

explained, “There’s a lot of benefit of having someone there in person. They could explain – 

some of the pitches that were used, just kind of like on the other side of the coin . . . .” (Id. at 

39:12-23.) An in-person team is “[h]ugely more effective” and “[t]here’s so much white noise 

and scam stuff over the phones that it’s not very effective.” (Id. at 39:24-40:8.) 

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computation is afforded.” Borg-Warner Corporation v. York-Shipley, Inc., 293 F.2d 88, 95 (7th 

Cir. 1961) (quoted by the Eleventh Circuit in Ramada Inns, 804 F.2d at 1565). 

Vivint elides this authority completely. As Vivint would have it, Dr. Winer’s opinions 

should be excluded precisely because Vivint has made it so difficult to know who has been 

deceived. That turns the law on its head. And, in point of fact, this is exactly why Dr. Winer’s 

opinions are helpful to the jury’s understanding of the issues: his expertise will aid the jury in 

understanding just how damaging the conduct is because it is so difficult to discover and “clean 

up” after-the-fact. Of course, if the jury doesn’t agree with some or any of Dr. Winer’s 

testimony, it does not have to award the full amount of damages Dr. Winer endorses. 

Notably, Vivint never actually takes issue with Dr. Winer’s computation quantifying the 

costs to carry out his recommended campaign. Under that approach, Dr. Winer determined, 

through demonstrable mathematical formula and verifiable inputs laid out in his report, the costs 

that would be required to deploy corrective information to sufficiently restore ADT’s brand to its 

ante-Vivint-sales-misconduct status. Nowhere in Vivint’s motion does Vivint demonstrate how 

those calculations are unreliable, unsound, or based on faulty math. And, in any event, the 

methodology is repeatable, testable, and subject to any criticism based on the arithmetic clearly 

laid out in the report—precisely the type of methodology endorsed by Rule 702. 

B. Vivint misconstrues Dr. Winer’s opinions, and at most the attacks go to weight and 

not admissibility. 

Vivint’s objections either ignore the law entirely or misconstrue Dr. Winer’s opinions. 

None supports exclusion. 

Dr. Winer’s cost-to-correct is a measure of present actual damage. First and 

foremost, Vivint’s objections appear rooted in a fundamental misunderstanding of Dr. Winer’s 

opinion. Dr. Winer’s valuation opinion is a measure of present actual damages caused by 

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Vivint’s conduct, not a remedy aimed at “future” damage or a form of “punitive” damages as 

Vivint seems to suggest. Indeed, as the term “remedial information” itself implies, the corrective 

messaging is intended to “remediate” the harms of the false information already introduced by 

Vivint into the marketplace. As one prominent intellectual property treatise explains, “In cases 

where the damage to reputation is very difficult to measure, the cost of corrective advertising, 

established through the testimony of advertising personnel and sufficient expert analysis, may be 

a means of proving the amount of actual damage to the mark’s reputation.” Mark A. Glick et al., 

Intellectual Property Damages: Guidelines and Analysis, 331 (2003); see also Adray, 76 F.3d at 

988–89 (reversing trial court and holding that prospective corrective advertising expenditures are 

“compensatory damages” representing the value a trademark has lost due to the defendant’s 

infringement). That is exactly what Dr. Winer’s opinions represent here. In fact, as Dr. Winer 

has testified at length in both this case and CPI v. Vivint, using a cost-to-correct approach to 

valuate the damage to ADT’s brand resulting from Vivint’s conduct is really the only reliable 

way of isolating the amount of damages specifically attributable to Vivint’s conduct versus the 

panoply of other factors that may have impacted ADT’s brand value over time. (Winer Dep., 

CPI v. Vivint, Ex. F, 52:17-55:19, 308:3-23; Winer Dep., ADT v. Vivint, DE 119-13, 270:1-6, 

273-274:4, 275:15-276:25.) Vivint’s rebuttal expert Brian Buss agrees that cost-to-correct can 

be an appropriate measure of actual damages. (Buss Dep., CPI v. Vivint, Ex. A, 86:6-11, 32:2-7; 

see also id. at 86:13-89:25 (explaining that his alternative approach to quantifying brand 

damages would require a “difficult” “multipart” process for which there is insufficient data).) 

He has even proposed a corrective advertising remedy himself in a previous commercial 

defamation case in which he served as the plaintiff’s expert! (Buss Dep., CPI v. Vivint, Ex. A, 

27:14-29:13.) 

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Dr. Winer’s valuation is perhaps best understood by a simple analogy. Imagine a classic 

sports car—say a 1967 vintage Corvette. The vehicle is involved in a front-end collision, 

damaging various aspects of the vehicle, some obvious (front bumper, engine compartment, and 

engine), and some not (such as the frame). The question is: by what amount has the vehicle been 

damaged? Sure, one could try to quantify that damage by rendering a wholesale Kelly Blue Book 

appraisal of the vehicle both prior to and after the accident—the difference between the two 

being the measure of damage caused by the accident. Of course, using that methodology would 

require multiple assumptions as to what the pre- and post- accident values were, as well as what 

actually caused any differentiation in value before and after the accident based on multiple 

factors—the cost actually paid to acquire the Corvette (and whether that was reasonable), what 

the classic Corvette market was at each respective time, what the broader economic climate was 

with respect to used vehicles, the lists goes on. Or, as an alternative approach, one could engage 

a vintage sports car mechanic to both diagnose the damage and determine the costs necessary to 

actually restore the vehicle to its ante-accident status, that cost being the value of the damage. 

The latter approach is similar to the one employed by Dr. Winer here: rather than 

engaging in the speculative process proposed by Vivint’s rebuttal expert Buss, he instead chose 

to determine what the necessary costs would be to adequately correct the misinformation 

introduced into the marketplace by Vivint denigrating ADT’s brand. The fact that the “fix” has 

not yet occurred does not render the opinion a speculative award of “future” or “punitive” 

damages. It’s a measure (the best available measure, according to Dr. Winer) of the amount of 

damage presently inflicted by Vivint’s conduct.7

7

 Vivint’s motion pretends that Dr. Winer’s remedy is somehow disproportionate to the value of 

ADT’s brand. The evidence at trial will show that during the past six years alone, ADT has 

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The remedy is tailored to correcting the disinformation spread by Vivint’s 

salesforce. Vivint’s other attacks on Dr. Winer’s analysis again misinterpret his reasoning and 

ADT’s claims, and they raise objections that the law ultimately charges against Vivint as 

tortfeasor. Vivint complains that Dr. Winer’s recommended campaign would result in ADT 

customers who were never approached or misled by Vivint also receiving a remedial message, 

and therefore it is overbroad and not “tailored” to correcting Vivint’s misconduct. Those are 

exactly the kinds of objections that Judge Whittemore rejected in PODS v. U-Haul where UHaul argued that Dr. Winer’s corrective remedy would result in consumers receiving corrective 

marketing (there, internet advertisements) who may never have actually seen or become 

confused by U-Haul’s infringing statements. See id. at 1283 (holding that such objections, at 

most, went to weight and credibility not admissibility). Indeed, it is incidental to any corrective 

advertising campaign that there will be recipients of the corrective message who may never have 

received or become confused by the initial misleading message by the Lanham Act violator—

unless the exact universe of recipients of the false/misleading information (and those who 

thereafter became confused) could be identified. To be sure, Dr. Winer has explained that the 

remedial campaign he endorses would result in consumers receiving remedial information who 

may not need it. But that does not mean that the remedy is impermissibly overbroad. Instead, as 

Dr. Winer repeatedly testified at his deposition in the excerpts cited by Vivint, broadly engaging 

the audience who may have received the misinformation is the only effective way to suss out all 

of those left deceived or confused by Vivint’s misconduct and to administer a corrective 

message. To the extent Vivint takes issue with that predicament, the Eleventh Circuit disagrees 

that it counts against ADT. See Ramada Inns, 804 F.2d at 1564-65. 

expended well over $1 billion building and promoting its brand and goodwill, the overall value 

of which far exceeds the corrective remedy Dr. Winer endorses. 

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Another analogy helps illustrate the point. As Dr. Winer explained at his deposition, the 

misinformation spread by Vivint’s sales force is in many ways similar to a virus. (Winer Dep.,

ADT v. Vivint, DE 119-13, 134:20-135:20). Once released into the community, it becomes very 

difficult to reliably track and clamp down on, especially given its ability to spread beyond an 

initial recipient who may not even be aware he or she has been infected. One recipient of 

Vivint’s misinformation may not herself “believe” it, but she may pass it along, or share her 

frustration resulting from the experience, with a much wider audience. (Id. at 100:14-101:21.) 

Actually identifying those who’ve been infected requires widespread and thorough 

vetting/testing, and the affected population isn’t limited to just those who outwardly show 

symptoms or report their infection to authorities. This same idea is why Dr. Winer explains that 

fixing the misinformation spread by Vivint’s 4,000-person strong sales force over multiple years 

throughout the country would require very broad messaging, beyond even the initial or readilyidentifiable cases of confusion, to effectively root out the virus and restore ADT’s brand. Simply 

because there may be many “negative tests” along the way does not mean that the remedy is 

overbroad; it’s simply the only way to identify and cure those who’ve actually been affected.8

8

 Vivint also seems to misunderstand the scope of the misinformation at issue in this lawsuit. It is 

correct that ADT has asserted “false association” claims under the Lanham Act, but ADT’s 

claims are not limited solely to assertions of association between Vivint and ADT. For starters, 

the Lanham Act itself applies beyond just false association and covers any misrepresentations 

regarding “the nature, characteristics, qualities or geographic origin” of the defendant’s or 

plaintiff’s “goods, services or commercial activities,” 15 U.S.C. § 1125(a); Babbit Electronics, 

Inc. v. Dynascan Corp., 38 F.3d 1161, 1181 (11th Cir. 1994) (“Section 1125(a) . . . covers false 

advertising or description whether or not it involves trademark infringement.”). And, in addition 

to its Lanham Act claim, ADT also asserts claims for common law unfair competition (Count II), 

trade slander/commercial disparagement (Count III), and tortious interference with business 

relationships (Count IV)—none of which are limited to just false association. Common law 

unfair competition is an umbrella cause of action for any conduct contrary to honest practice in 

industrial and commercial matters. Tobinick v. Novella, 142 F. Supp. 3d 1275, 1282-83 (S.D. 

Fla. 2015) (Rosenberg, J.) The elements of trade slander are 1) that the defendant communicated 

a “false statement”; 2) about the plaintiff; 3) to a third party; and 4) the party suffered damages 

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Actually, Dr. Winer’s proposed remedial campaign is, by design, conservative and 

limited to consider matters of efficiency so as to not be broader than is necessary to accomplish 

its restorative goal. (Winer Rep., DE 119-15, at ¶¶ 101-102.) For example, while Dr. Winer 

opines that an effective campaign should try to reach all ADT customers in the same channel as 

Vivint’s in-person visits, he has designed the in-person aspect of the campaign to focus only on 

ADT’s top-20 cities in the geographic locations from which there have been reports of Vivint’s 

misleading practices, encompassing a fraction of ADT’s customer base. (Id.) While approaching 

this smaller subset would necessarily result in many affected customers not receiving like-forlike in-person interactions, Dr. Winer believes it would be the most cost-effective balance on the 

spectrum of possible approaches. (Id. at ¶ 102.) If Vivint disagrees with the scope of the 

recommended remedy, certainly Vivint can argue its view to the jury in support of a smaller 

award. Truth be told, Dr. Winer’s damages number could have been much, much larger. 

The “inoculation” effect does not preclude the remedy. Vivint similarly reproaches 

Dr. Winer because he explained that, in addition to ferreting out and correcting existing 

misimpressions resulting from Vivint’s conduct, the corrective campaign he endorses would also 

have the benefit of “inoculating” customers against further confusion resulting from Vivint’s 

ongoing actions. As before, Vivint misunderstands that any corrective campaign in any context 

results in the avoidance of “future” harm by preventing ongoing confusion—which is the exact 

as a result of the statement(s). E.g., Furmanite Am., Inc. v. T.D. Williamson, Inc., 506 F. Supp. 

2d 1134, 1140 (M.D. Fla. 2007). To prove tortious interference, a plaintiff must show that the 

defendant intentionally and “unjustifiably” interfered with the plaintiff’s business relationships, 

where “unjustifiable” conduct includes any type of “misrepresentations” or other improper 

conduct. See Florida Supreme Court Pattern Jury Instruction (Civil) 408.6. In addition to false 

claims of association, Dr. Winer’s remedial campaign is also rightly directed at correcting these 

types of misrepresentations. In fact, Dr. Winer endorses an in-person corrective campaign 

precisely because Vivint’s misrepresentations take so many different forms and oftentimes turn 

on nuances of the respective pitch such that correcting the false information requires 

individualized conversations. 

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point of conducting such messaging. For these reasons, courts presented with the question of 

whether Lanham Act damages can include costs to prevent future confusion, even after the 

defendant’s actions have stopped,9 have answered in the affirmative. See, e.g., Ninth Circuit 

Model Jury Instruction 15.27 - Trademark Damages (listing as recoverable damages, “4. The 

expense of preventing customers from being deceived” and “5. The cost of future corrective 

advertising reasonably required to correct any public confusion caused by the infringement.” 

(emphasis added)); Seventh Circuit Pattern Jury Instruction 13.6.3 – Actual Damages (listing as 

recoverable damages “Cost of corrective advertising. This is [the amount spent by Plaintiff to 

counteract the effects of Defendant’s infringement] [and] [the amount necessary to dispel any 

public confusion that lingers after Defendant’s infringement has stopped].” (emphasis added, 

brackets in original)).10 Returning to the vaccine analogy, once the virus has begun to spread, the 

only way to truly stop it is to not only treat those who have already become infected but to also 

treat those at risk of being deceived as the misinformation continues to spread in the 

marketplace. 

Dr. Winer’s opinions regarding customer confusion are amply supported by the 

record. Throughout its motion, Vivint pretends that there are only a handful of records 

supporting Dr. Winer’s opinions regarding the reported incidents of Vivint’s sales force 

misleading and confusing ADT’s customers, and that Dr. Winer somehow improperly relies on a 

“sampling” of the broader evidence. Vivint repeatedly obfuscates the records that Dr. Winer 

personally reviewed himself versus the records that he enlisted a team of assistants to aid in 

reviewing given how expansive the body of evidence is. It’s unclear what aspect of Dr. Winer’s 

9

 Significantly here, Vivint’s actions are ongoing: ADT has received hundreds of reports of 

Vivint’s sales misconduct even since the filing of this suit. 

10 The Eleventh Circuit has not adopted a pattern Lanham Act/trademark damages instruction. 

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opinions Vivint is actually seeking to exclude based on this complaint (making it difficult for 

ADT to respond), but regardless the argument goes nowhere. 

In fact, in spite of the inherent difficulties of tracking the types of confusion caused by 

Vivint’s misrepresentations, Dr. Winer opines that there is substantial evidence that Vivint’s 

sales misconduct has caused many consumers to become “actually confused” to Vivint’s 

purported association with ADT, supporting the need for remedial information. (Winer Rep., 

DE 119-15, at ¶ 97.) One category of evidence he reviewed, in addition to other documentation 

detailing the complaints about Vivint made to ADT, (id. at ¶ 14), was recorded audio calls by 

customers reporting deceptive sales practices by Vivint to ADT.11 Dr. Winer has testified that, 

given the volume of these recordings, he and his team reviewed only a smaller set of 357 such 

recordings to get a sense of the types of complaints being made about Vivint and the potential 

confusion Vivint’s conduct was creating with ADT’s customers. (At trial, through other fact 

witnesses, ADT will establish that the set of 1,300+ recordings comprises in-bound complaints 

made to ADT regarding Vivint’s deceptive sales conduct.) Oddly, Vivint’s argument seems to be 

that some unspecified aspect of Dr. Winer’s opinions should be excluded because he did not 

consider even more evidence of Vivint’s wrongdoing—that Dr. Winer’s team sampled and 

reviewed “only” 357 of the 1,300-plus complaint recordings supplied by ADT rather than all of 

11 At the time Dr. Winer rendered his report, Vivint had not provided any information about the 

volume of reports Vivint had received about deceptive sales conduct by its sales force, even 

though the academic literature is clear that Vivint would be the entity most likely to receive 

complaints about its salesforce’s conduct. Since that time, following this Court’s order 

compelling production, Vivint has produced a spreadsheet with over 75,000 complaint entries 

(what Vivint calls “feedback cases”). Vivint claims it investigates each such complaint and 

comes to a conclusion about the complaint. Yet, Vivint has redacted the column in the 

spreadsheet it produced showing its conclusion classifying the respective complaints, despite this 

Court’s order overruling Vivint’s claims of privilege relating to such information. [See DE 62.] 

Other documents make clear that the information withheld would show how many complaints 

Vivint classified as “affiliation misrepresentations” or “slams,” terms it frequently uses to refer 

to the same sales misconduct at issue here. 

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them.12 The argument is a red herring because Dr. Winer is clear that the recordings actually 

reviewed—in conjunction with all the other evidence he considered and cited in his report—were 

sufficient, even if they represented only a smaller set of the total documented evidence of 

Vivint’s practices. (See, e.g., Winer Rep., DE 119-15, at ¶ 48 (explaining that he and his team 

reviewed several hundred13 of over 1,300 customer complaint calls made available to him by 

ADT); id. at ¶ 62 (“The examples above are not meant to be exhaustive”); id. at ¶ 96 (detailing 

the locations from which several hundred complaints have originated).) 

As would be expected, the 1,300+ customer call recordings cited in Dr. Winer’s report 

have all been produced to Vivint and Vivint’s rebuttal expert for review in this case. And based 

on his review of that same evidence, Vivint’s own expert (Buss) confirmed that there are 

hundreds of examples within these recordings of ADT customers becoming confused by Vivint’s 

false and misleading sales pitches. (Dep. of Brian Buss, ADT v. Vivint, Ex. G [filed under seal], 

82:1-84:24.) Significantly, of the 202 unique customers encompassed by the 357 audio files 

reviewed by Dr. Winer’s team, Vivint’s own expert concluded that at least 93 such customers 

(46%) reported confusion about a Vivint sales representative making a claim or implication of 

association with ADT. (Id. at 84:14-85:21; Rep. of Brian Buss, Ex. H [filed under seal], at PDF 

p. 73, Schdl. 5a). Of course, if Vivint takes issue with quantum of examples Dr. Winer cites in 

his report, it is free to cross examine him on that basis. But it is no reason to exclude any portion 

of Dr. Winer’s opinions, especially when Vivint’s own expert confirms Dr. Winer’s findings. 

12 The Rules of Evidence do not require ADT to pay a senior marketing professor at NYU to 

personally listen to thousands of hours of tape recordings; Dr. Winer was well within bounds to 

delegate those tasks to his team. Vivint’s rebuttal expert did the same thing. 

13 Upon request from Vivint after service of Dr. Winer’s report in August of 2021, ADT supplied 

Vivint a spreadsheet identifying exactly which 357 calls Dr. Winer’s team randomly selected for 

review from the set of 1,300+. Vivint’s rebuttal expert has made no effort whatsoever to show 

that the reviewed set of call recordings was “unrepresentative” of the broader set, and, in any 

event, this objection does not support exclusion. 

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As the Eleventh Circuit has unequivocally held, while evidence of actual confusion “is 

not necessary” under the Lanham Act because “[o]ne merely has to show that the likelihood of 

confusion exists,” “evidence of actual confusion is the best evidence of a likelihood of 

confusion.” Wreal, LLC v. Amazon.com, Inc., 38 F.4th 114, 137 (11th Cir. 2022) (reversing sum. 

j. on Lanham Act claim granted by Lenard, J.); see also Freedom Sav. & Loan Ass’n v. Way, 757 

F.2d 1176, 1185 (11th Cir. 1985) (“Actual confusion by a few customers is the best evidence of 

likelihood of confusion by many customers”). Therefore, the Eleventh Circuit has held that even 

a “very little” amount of actual confusion is “highly probative.” Wreal, 38 F.4th at 137. The 

overall strength of such evidence depends on “the number of instances of confusion,” “the kinds 

of persons confused,” and the “degree of confusion.” Id. Here, Dr. Winer’s analysis of the 

complaints made to ADT regarding Vivint’s sales conduct revealed that multiple unrelated 

individuals spread across the country had all become actually confused by Vivint’s deceptive 

statements—as did the analysis of Vivint’s own expert! The fact that Dr. Winer did not review 

records relating to hundreds more incidents of Vivint’s deceptive practices does not render his 

analysis unreliable.14

III. Dr. Winer’s Opinions Are Not Legal Conclusions and Will Assist the Jury in 

Determining Whether ADT’s Brand Has Damaged and the Type and Amount of 

Remedial Messaging Necessary to Restore It. 

Vivint’s last argument makes no sense. Dr. Winer will not be called to “tell the jury what 

result to reach.” Nor will he offer any “legal conclusions.” Instead, Dr. Winer will explain, from 

14 Vivint also seems to take issue with the fact that Dr. Winer did not conduct a survey. That was 

not necessary in this case given the abundance of evidence of actual customer confusion—

including the dozens of customers who will testify at trial. And, the Eleventh Circuit has “moved 

away from relying on survey evidence” as critical in proving confusion. Frehling Enters., Inc. v. 

Int’l Select Grp., Inc., 192 F.3d 1330, 1341 n.5 (holding that the absence of survey evidence was 

not dispositive on the issue of actual confusion); Safeway Stores, Inc. v. Safeway Disc. Drugs, 

Inc., 675 F.2d 1160, 1167 n.10 (11th Cir. 1982) (survey evidence not necessary). 

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his expert marketing perspective, how and why Vivint’s conduct is damaging to ADT’s brand 

equity requiring corrective messaging, and what specific course of conduct would be required to 

attempt to restore it. “An opinion is not objectionable just because it embraces an ultimate issue.” 

Fed. R. Evid. 704; see also Hanson v. Waller, 888 F.2d 806, 811-12 (11th Cir. 1989) (discussing 

Rule 704 and holding that it was not impermissible for accident reconstruction expert to opine in 

negligence action that crash was “just pure accident”). Obviously the jury will decide whether 

Vivint is legally liable based on the totality of evidence, and if so, what amount of damages to 

award. Dr. Winer’s marketing and branding expertise will aid the jury, not supplant it, in making 

those determinations. 

Dated: January 24, 2023 Respectfully submitted, 

SHOOK, HARDY & BACON L.L.P. 

s/ Jennifer A. McLoone

Jennifer A. McLoone 

Florida Bar No. 029234 

jmcloone@shb.com 

201 S. Biscayne Blvd., Suite 3200 

Miami, Florida 33131 

Tel: (305) 358-5171 

Fax: (305) 358-7470 

-ands/ Charles C. Eblen

Charles C. Eblen (admitted pro hac vice) 

ceblen@shb.com 

2555 Grand Blvd. 

Kansas City, Missouri 64108 

Tel: (816) 474-6550 

Fax: (816) 421-5547 

-ands/ Eric J. Hobbs

Eric J. Hobbs (admitted pro hac vice) 

ehobbs@shb.com 

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Daniel E. Rohner (admitted pro hac vice) 

drohner@shb.com

1660 17th Street, Suite 450 

Denver, Colorado 80202 

Tel: (303) 285-5300 

Fax: (303) 285-5301 

Counsel for Plaintiffs/Counterclaim 

Defendants ADT LLC and The ADT Security 

Corporation

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