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 IN LIMINE

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INTRODUCTION 

Defendants Vivint Smart Home, Inc. and Legacy Vivint Smart Home, Inc. (collectively 

“Vivint”) seek to preclude nearly all evidence relating to Vivint’s years of egregious deceptive 

sales practices. This evidence will establish that Vivint’s conduct is, and has consistently been, 

intentional, systemic, widespread, and damaging to consumers and competitors alike. Vivint’s 

arguments to exclude this highly probative evidence ask the Court to embrace a hyper-myopic and 

impractical interpretation of the Federal Rules of Evidence that would eliminate all circumstantial 

evidence and would require ADT to prove intent and every individual instance of Vivint’s 

wrongful conduct through customer testimony alone. This would require hundreds (if not 

thousands) of deceived customers to testify at a trial that would last months on end and would 

remove from the jury’s consideration Vivint’s own documents evidencing that Vivint’s leadership 

was aware of, condoned, and protected Vivint’s deceptive sales tactics for many years. The Court 

should reject Vivint’s efforts to try this case in a sanitized, fictitious vacuum. 

ADT’s proof—through both direct and circumstantial evidence—will demonstrate that 

Vivint condoned, protected, and encouraged deceptive sales practices for many years. For 

example, Vivint entered consent decrees and paid hefty settlements with at least 15 attorneys 

general in states across the nation for the exact behavior at issue. Yet, rather than learn any lesson 

from these punishments and stop the deceptive conduct, Vivint’s sales practices only became more 

egregious over time, demonstrating that the conduct is intentional and remained profitable. Even 

8-figure settlements with both ADT in 2017 and the Department of Justice in 2020 have failed to 

deter Vivint’s deceptive sales conduct. And even after ADT brought this suit documenting 

hundreds of additional complaints of Vivint’s sales misconduct, ADT has only continued to 

receive more and more reports from its customers regarding the same shenanigans. In response, 

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Vivint has taken no action to investigate the complaints ADT has documented or to discipline any 

of its salesforce as a result. Based on this evidence, a jury could conclude that Vivint’s refusal to 

curtail deceptive conduct is intentional, and that Vivint’s professed measures to put an end to the 

conduct, what little they may be, are mere window dressing. 

LEGAL STANDARDS 

In fairness to the parties and their ability to put on their case, a court should exclude 

evidence in limine only when it is clearly inadmissible on all potential grounds. The movant has 

the burden of demonstrating that the evidence is inadmissible on any relevant ground. Unless 

evidence meets this high standard, evidentiary rulings should be deferred until trial . . . .” Ctr. Hill 

Cts. Condo. Ass’n, Inc. v. Rockhill Ins. Co., No. 19-CV-80111, 2020 WL 496065, at *1 (S.D. Fla. 

Jan. 30, 2020) (citing United States v. Gonzalez, 718 F. Supp. 2d 1341, 1345 (S.D. Fla. 2010)) 

(internal quotations omitted). 

This Court disfavors motions in limine and prefers to address the admissibility of evidence 

as such issues arise at trial. Begualg Inv. Mgmt., Inc. v. Four Seasons Hotel Ltd., No. 10-22153-

CIV, 2013 WL 750309, at *1 (S.D. Fla. Feb. 27, 2013). Furthermore, a motion in limine “remains 

subject to reconsideration by the court throughout the trial.” Stewart v. Hooters of Am., Inc., No. 

8:04-CV-40-T-17-MAP, 2007 WL 1752843, at *1 (M.D. Fla. June 18, 2007).

ARGUMENT 

I. CUSTOMER COMPLAINTS ARE ADMISSIBLE, RELEVANT, AND RELIABLE 

EVIDENCE. 

Vivint seeks to exclude “Customer Complaints,” which it broadly defines as “recordings 

of phone calls between customers and ADT, Vivint, or both, as well as any written notes, reports, 

or spreadsheet summary purporting to document the customers’ recollection of their alleged 

interactions with Vivint on those recordings.” (D.E. 114 at 2.) Vivint’s sweeping effort to 

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generically bucket and exclude all “Customer Complaints”—where each category has separate 

probative value and non-hearsay uses—demonstrates how overreaching Vivint’s Motion is. 

Regardless, all customer complaints in this case – both the complaints made to ADT and those 

made to Vivint (and Vivint’s documentation of its investigation of such complaints) – are 

admissible and relevant for several non-hearsay uses. Additionally, these same records of customer 

complaints, regardless of form, contain party admissions, which are also not hearsay. And, finally, 

they are evidence of customer confusion, which the Eleventh Circuit has recognized not only as 

non-hearsay, but critical evidence under the Lanham Act. 

A. All Customer Complaints Are Admissible for Non-Hearsay Purposes. 

All customer complaints produced in this case regarding Vivint’s deceptive sales practices 

are admissible for multiple non-hearsay purposes. “An out-of-court statement is not hearsay, and 

may be admitted into evidence, if it is offered for some purpose other than to prove the truth of the 

matter asserted.” United States v. Cochran, 682 F. App’x 828, 835 (11th Cir. 2017). ADT seeks to 

admit customer complaints for many non-hearsay purposes: showing that Vivint had knowledge 

and notice of the deceptive sales practices of its sales representatives; showing that Vivint acted 

with intent by failing to rectify known deceptive sales practices or adequately discipline the 

offending sales representatives; proving actual confusion under the Lanham Act; and 

demonstrating how many customers were harmed by Vivint’s deceptive sales practices for ADT’s 

damages calculations. These are well recognized non-hearsay uses of such evidence that courts, 

including this one, have admitted in analogous circumstances. 

1. Vivint’s own documents recording years of complaint patterns and how little 

it did in response to those complaints prove notice and knowledge (valid nonhearsay uses). 

The customer complaints in Vivint’s possession go to the very heart of this case—

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misrepresentations about an affiliation with the customer’s alarm company; lying about buying 

out a competitor’s contract; and myriad other false representations that Vivint sales representatives 

have regularly used to trick customers into switching alarm providers. These complaints are 

admissible evidence of Vivint’s notice and knowledge of deceptive sales practices spanning many 

years emanating from geographic areas throughout the country involving numerous sales people. 

Out of court statements are admissible to prove notice and knowledge. See, e.g., United 

States v. Lee, 427 F.3d 881, 896–97 (11th Cir. 2005) (holding that the District Court did not abuse 

its discretion by admitting a letter and an email for the non-hearsay purpose of showing notice that 

the financial transactions at issue “were not recognized and were unlawful”); United States v. 

Postal, 589 F.2d 862, 888 (5th Cir. 1979) (finding out of court statements admissible to prove 

intent to distribute marijuana). 

Following this Court’s order compelling production, Vivint produced documents showing 

it received more the 75,000 complaints about the conduct of its sales representatives during the 

timeframe at issue in this lawsuit. (See Vivint spreadsheet collecting customer complaints, attached 

hereto as Ex. A.) And of this universe of complaints, Vivint’s legal department also investigated 

a subset of over 1,000 customer complaints of dishonest or deceptive activity of the sales 

representatives, many of whom were highly productive leaders in its salesforce for many years. 

(See Hansen Dep. 43:7-15, Exhibit 2, Jan. 16, 2023, attached hereto as Ex. B.) The supposed 

purpose driving this compliance review was to determine what, if any, punishment was needed to 

deter future misconduct. (See Banks Decl. at ¶ 5, attached hereto as Ex. C.) Yet despite records 

proving Vivint’s extensive knowledge of the magnitude of this problem, Vivint has taken virtually 

no meaningful steps to punish dishonest sales representatives or to deter deceptive sales practices. 

These customer complaints, found within Vivint’s own records, are highly probative, relevant 

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evidence that Vivint has had knowledge and notice of its sales representatives’ deceptive sales 

practices for many years. 

Other courts in this District considering this same evidentiary issue have agreed with ADT 

that these customer complaints are admissible to prove knowledge and notice. In a prior lawsuit 

brought by ADT against Vivint (Vivint I), ADT sought to admit customer complaints like the ones 

at issue here. The Honorable Donald Middlebrooks held that, “[a]lthough the recordings [of 

customer complaints] contain hearsay and may not be admitted as evidence for the truth of the 

statements, in the event they have relevance for a non-hearsay purpose such as notice, any 

objection shall be dealt with at trial.” See ADT LLC v. Vivint, Inc., No. 17-CV-80432-

MIDDLEBROOKS, Doc. 201 (S.D. Fla. Dec. 8, 2017) (attached hereto as Ex. D). 

Furthermore, in another prior Lanham Act lawsuit brought by ADT in this jurisdiction 

against Alder Holdings, LLC (Alder), the Honorable Robin Rosenberg also permitted customer 

complaints to come into evidence for the non-hearsay purpose of proving Alder’s knowledge and 

notice of its sales representatives’ conduct. See ADT LLC v. Alder Holdings, LLC et al., No. 17-

CV-81237-ROSENBERG, Doc. 335 (S.D. Fla. Apr. 29, 2019) (“The Court agrees with Judge 

Reinhart that unsworn customer complaints, evidence of other lawsuits and investigations, and 

evidence of alleged deceptive sales practices occurring prior to May 24, 2017, are admissible to 

show Defendants’ knowledge and notice”) (emphasis added) (attached hereto as Ex. E). 

2. Vivint’s own documentation of customer complaints is also admissible as a 

party admission. 

Vivint’s own documentation of the customer complaints it received, the actions it took to 

investigate the complaints, and Vivint’s conclusions about the complaints are party admissions 

under FRE 801(d)(2). See Fed. R. Evid. 801(d)(2). Party admissions are non-hearsay. Id.; see also

United States v. Gray, 443 F. App'x 515, 521 (11th Cir. 2011). In the parties’ previous lawsuit, 

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Judge Middlebrooks recognized this and held that Vivint’s own documentation and response to 

complaints it received are not excluded by hearsay rules. (See Ex. D) (holding that Vivint’s 

responses to BBB complaints are not hearsay under Rule 801(d)(2)). 

Further, these party admissions are highly probative evidence because Vivint’s statements 

made to customers in its investigation of customer complaints are critical to a jury’s understanding 

that Vivint’s conduct was systemic and intentional, not the isolated acts of bad apples. 

3. Vivint’s failure to investigate or respond to the innumerable customer 

complaints ADT provided Vivint regarding its sales representatives’ deceptive 

sales practices is evidence that Vivint’s conduct is intentional. 

Over two years ago, ADT provided Vivint with hundreds of complaints ADT received 

about Vivint’s sales practices and over 1,300 customer audio calls describing the complaints. 

When ADT filed this lawsuit, it attached as an exhibit to the complaint a spreadsheet detailing 

customer complaints of approximately 250 ADT customers who reached out to ADT to report the 

deceptive conduct of Vivint sales representatives. (D.E. 1-1.) Throughout discovery, ADT has 

supplemented that spreadsheet and corresponding production of customer records to document 

additional complaints that have been reported even since ADT filed this suit, the latest list topping 

385 complaints. These documents provide extensive information about the customers and the 

nature of the deceptive conduct—including thousands of verbatim audio recordings of the inbound 

complaints made to ADT about Vivint. Where available, these documents also provide Vivint with 

the name of the sales representative who engaged in the deceptive behavior and other information 

relating to each incident. Vivint has made clear that, in fact, it did nothing with all this information 

to detect patterns of bad conduct, discipline offenders or remunerate defrauded customers. (See, 

e.g., Ex. B at 18:6-20:2.) 

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During this case, ADT also deposed a number of the customers it had disclosed as witnesses 

where the customers described under oath the deceptive conduct of Vivint’s sales representatives. 

Shockingly, Vivint’s corporate representatives could not point to any investigation regarding the 

allegations levied against innumerable sales leaders and sales representatives undertaken based 

upon this testimony. (See Ex. B at 10:12-11:15.) If Vivint truly sought to curtail deceptive sales 

practices or thought that just a few bad apples were responsible for the conduct, it would surely 

review the complaints and any corresponding audio recordings, reach out to the customers 

affected, and interview the sales representatives at issue about the alleged deceptive conduct. More 

importantly, for a company with a long history of regulatory problems caused by deceptive sales 

practices, surely some disciplinary action would be taken against the sales representatives who 

engaged in this behavior. 

Yet Vivint admitted in its 30(b)(6) deposition that it did absolutely nothing with the trove 

of information documenting its salesforce’s misconduct in this case. (Ex. B at 18:6-20:2.) Despite 

explicit 30(b)(6) topics asking Vivint to specify which of the 385+ complaints it deems legitimate, 

and which ones it disputes, Vivint cannot (or refuses to) say whether any of these well-documented 

complaints involved deceptive sales practices by its salesforce. (Ex. B at 7:19-9:20, 11:23-12:7, 

13:19-24.) It cannot (or refuses to) say that it has spoken to a single sales representative based on 

the information in the 1300 calls. (Ex. B at 17:22-18-13.) Moreover, Vivint cannot say that it 

reprimanded a single sales representative based on the information ADT provided to Vivint. (Ex. 

B at 10:2-11, 11:6-11.) All this despite the fact that other documents Vivint produced—after being 

compelled by the Court to do so—confirm that many of the complaints at issue were found to be 

“Affiliation Misrepresentations” after Vivint’s own investigation, a term Vivint uses to refer to a 

situation where a sales person intimates an association with the potential customer’s existing alarm 

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provider (i.e., ADT). (Ex. B at 55:5-19, 59:25-60:6.) 

Vivint’s complete indifference to the wealth of information that could help Vivint eradicate 

deceptive conduct is highly probative and relevant to the issue of whether Vivint intends for its 

sales representatives to engage in deceptive sales practices and even rewards them for same. 

Because intent is an element of both ADT’s Lanham Act claim and its punitive damage claim, it 

is essential that the jury consider this evidence to show what Vivint knew about complaint patterns 

and how little it did to curtail the behavior. See N. Am. Med. Corp. v. Axiom Worldwide, Inc., 522 

F.3d 1211, 1220 (11th Cir. 2008) (explaining that the defendant’s intent, meaning whether “the 

defendant hope[s] to gain competitive advantage by associating his product with the plaintiff’s” is 

one of the seven factors relevant to determining whether a likelihood of confusion exists under the 

Lanham Act); see also Williams v. First Advantage LNS Screening Sols. Inc., 947 F.3d 735, 765 

(11th Cir. 2020) (for a punitive damages award, “a defendant’s intent plays an important role in 

gauging the extent of the reprehensibility” of the defendant’s conduct). 

4. Customer complaints to both ADT and Vivint are evidence of actual confusion 

under the Lanham Act. 

To meet its burden of proof on its Lanham Act claim, one factor a jury must consider is 

whether Vivint’s conduct was “likely to cause confusion” about affiliation between the brands. 

See 15 U.S.C. § 1125(a)(1)(A). 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) 

(emphasis added); 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 

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many customers”). The overall strength of such evidence depends on “the number of instances of 

confusion,” “the kinds of persons confused” and the “degree of confusion.” Wreal, 38 F.4th at 137.

The customer complaints made to ADT about Vivint’s deceptive conduct suggesting Vivint 

was affiliated with ADT are replete with instances of actual customer confusion caused by Vivint’s 

statements—as are Vivint’s own records. (See DE 119-01.) In accordance with Wreal, ADT 

intends to use these customer complaints as evidence of actual confusion – that numerous unrelated 

ADT customers spread all over the country were confused by Vivint’s deceptive sales practices – 

to prove that Vivint’s statements were, in fact, likely to cause confusion as defined by the Lanham 

Act. 

5. Customer complaints are evidence of the number of ADT customers harmed. 

ADT intends to use its own spreadsheet that catalogues all customers who have submitted 

complaints about Vivint’s deceptive sales practices to prove the number of ADT customers who 

have reported complaints about Vivint. This too is a non-hearsay use of this spreadsheet that should 

be permitted. Wreal, 38 F.4th at 137 (number of instances of confusion relevant to consideration 

of Lanham Act claim). 

At minimum, the Court should permit a redacted version of ADT’s spreadsheet 

documenting complaints about Vivint, as at least one court in this jurisdiction has permitted in a 

prior identical Lanham Act case. In Alder, the Court permitted ADT to use its complaint 

spreadsheet with the “customer comments” section redacted, allowing for admission of other nonhearsay fields such as Customer ID, Date of Report, Competitor Company Name, Contract, 

Customer Name, Street Address, City, State, Zip Code, Date of Activity, and Call Date. (See Alder

Trial Exhibit P9, attached hereto as Ex. F.) The Alder defendants made a motion in limine “to 

exclude all references to the existence and substance of customer complaints for the truth of the 

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matter, regardless of the source of the evidence...” See ADT LLC v. Alder Holdings, LLC et al., 

No. 17-CV-81237-ROSENBERG, Doc. 218 (S.D. Fla. Feb. 22, 2019) (attached hereto as Ex. G). 

The Honorable Robin Rosenberg denied this motion without prejudice (id.), and following a 

hearing with Magistrate Judge Reinhart, the spreadsheet was admitted with the customer 

comments field redacted but all the information in the aforementioned categories remained 

unredacted. 

Here, Vivint attempts an even broader motion in limine than the overly broad motion in 

limine that was denied in Alder. Vivint attempts to exclude all customer complaints for all purposes 

(not just the truth of the matter asserted) and argues that ADT should be limited to live customer 

witness testimony only. (D.E. 114 at 2-3.) First, even if this Court were to require the customer 

comments to be redacted, the Customer ID, Date of Report, Competitor Company Name, Contract, 

Customer Name, Street Address, City, State, Zipcode, Date of Activity, and Call Date do not 

implicate hearsay concerns. ADT will offer the spreadsheet, in conjunction with testimony about 

how the inbound complaints are received and documented, as evidence of how many customers 

have reported Vivint’s sales misconduct and from where the complaints originated. Neither of 

those purposes invokes hearsay rules. 

Second, at least one court in this jurisdiction has already rejected the notion that ADT is 

limited to live customer witness testimony to prove its Lanham Act claims. In ADT LLC et al v. 

Alarm Protection LLC, another Lanham Act case very similar to the case at bar, the Honorable 

Robin Rosenberg granted ADT’s motion in limine to bar argument suggesting ADT’s trial 

witnesses are the only confused customers. See ADT LLC et al v. Alarm Protection LLC et al., No. 

15-CV-80073-ROSENBERG, Doc. 345 (S.D. Fla. Jan. 30, 2017), (attached hereto as Ex. H.) The 

same is required here. On one hand, Vivint wants to limit ADT to proving its damages with 

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customer testimony (D.E. 114 at 2-3), but Vivint also challenged the number of customer 

depositions that ADT could take in this case before finally consenting to a total of fifteen 

depositions. (See D.E. 77 (ADT motion to exceed deposition limit of 10); D.E. 82 at 5 (noting that 

the parties agree to permit each side to conduct a total of 15 customer witness depositions).) ADT 

exhausted the depositions it was permitted to take. It is beyond dispute that 15 customers is far 

fewer than the number that have been affected by Vivint’s conduct. Just as Judge Rosenberg 

acknowledged in Alder, here Vivint cannot, on the one hand, limit the number of depositions ADT 

can take of customers affected by Vivint’s conduct, and then turn around, on the other hand, and 

say that ADT’s proof is limited to just those customers. 

Accordingly, ADT’s customer complaint spreadsheet is admissible for the non-hearsay 

purpose of showing the number of customers who reported complaints about Vivint’s deceptive 

sales practice. Further, ADT’s presentation of evidence should not be limited to just its testifying 

customer witnesses, as Vivint objected to permitting ADT to depose any more than 15 customers. 

B. Vivint’s Purported Reliability Concerns with the Customer Complaints Are 

Misplaced and Do Not Support Exclusion.

Vivint spills much ink trying to convince this Court that the customer complaints “lack 

trustworthiness” because “ADT coaches its customers to believe that a deceptive sales practice 

was committed;” because “ADT customers express faulty memories or fail to attribute statements 

to Vivint;” and because “ADT customers have motives to misrepresent interactions.” (D.E. 114 at 

5-9.) However, at most, these arguments bear only on the weight that should be assigned to these 

customer complaints, not the admissibility of them, which is a question for the jury. See, e.g., 

Vaughn v. Carnival Corp., 571 F. Supp. 3d 1318, 1322 (S.D. Fla. 2021) (“The Court notes that 

any dispute as to the authenticity of the handout beyond this threshold [of a prima facie case for 

authenticity] goes to the weight of the evidence to be determined by the jury, not admissibility.”); 

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Lindley v. Taylor, No. 2:10-CV-141-VEH, 2016 WL 6157774, at *6 (N.D. Ala. Oct. 24, 2016) 

(denying a motion in limine because the concerns about the photographs at issue went to the weight 

of the evidence rather than admissibility); see also Acevedo v. NCL (Bahamas) Ltd., 317 F. Supp. 

3d 1188, 1197 (S.D. Fla. 2017) (“[A]ny weaknesses in the factual underpinnings of [the expert’s] 

opinion go to the weight and credibility of his testimony, not to its admissibility.”). 

Truth is, ADT has now thoroughly documented over 385 complaints ADT has received 

about Vivint’s deceptive sales practices, including by producing all records ADT received about 

the complaints, all records (including work product) documenting ADT’s investigation of such 

complaints, and thousands of audio recordings verbatim reflecting the customers’ complaints and 

reports of being confused following Vivint’s sales calls. Even if one were to assume Vivint’s 

attacks against a few of these complaints were merited, Vivint at most has identified a handful

(less than 10) of the 385 complaints that it disputes as reporting deceptive sales conduct by its 

salesforce. Vivint has not, and cannot, challenge the validity of the hundreds of other complaints 

not identified in Vivint’s motion that ADT has thoroughly documented. (See Ex. B, at 11:23-

12:11.) 

In fact, during discovery ADT gave Vivint the opportunity to dispute any of the 300+ 

complaints that ADT has put at issue, but Vivint refused to do so. For example, in its Second Set 

of Interrogatories to Vivint served on March 9, 2022, ADT asked Vivint to “[p]lease identify each 

and every customer [identified by ADT] that Vivint contends was not subject to a Deceptive Sales 

Practice, and the basis for why Vivint contends the interaction was not a Deceptive Sales Practice 

notwithstanding the voluminous documentation ADT has produced substantiating each incident.” 

(ADT’s Second Intrgs. to Defs. at Intrg. 18, attached hereto as Ex. I.) Vivint refused to answer this 

Interrogatory, standing only on its meritless and nonsensical objections. (Vivint’s Resp. to ADT’s 

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Second Intrgs. to Defs. at Resp. 18, attached hereto as Ex. J.) Thus, Vivint had nine months prior 

to the filing of the Motion to identify which of the customer complaints it contends did not, in fact, 

describe a deceptive sales practice. It cannot now change its sworn discovery responses after 

already being afforded the opportunity to dispute any complaint, where ADT then would have 

agreed, if the challenge was merited, to drop such complaint from this suit. 

Similarly, ADT included in its 30(b)(6) notice to Vivint topics requesting Vivint to specify 

which of the documented complaints Vivint conceded involved deceptive sales practices, and 

which ones it legitimately disputed. Just as it did in the written discovery, Vivint refused to say 

which of the complaints it concedes involved deceptive sales practices and which ones Vivint 

disputes. (Ex. B at 7:19-9:20, 11:23-12:7, 13:19-24.) Instead, Vivint has employed the ostrich 

defense by simply refusing to look at the complaints, except for the handful it apparently now tries 

to dispute in its motion. (See id.) 

In its motion, Vivint has cherry-picked certain statements from certain recordings of certain 

customer complaints and asks this Court to exclude the entirety of the customer complaints without 

providing the rest of the context surrounding those statements. (D.E. 114 at 5-9.) Vivint’s 

arguments lack merit for several reasons. First, Vivint cites to limited portions of certain recordings 

but ignores all the other evidence documenting why ADT classified such complaint as a deceptive 

sale.1 Making matters worse, at the deposition of ADT’s corporate representative where Vivint 

sought to discuss limited portions of the calls it cherry-picked for certain limited customers, Vivint 

refused, in violation of Federal Rule of Evidence 106, to permit ADT’s counsel to introduce other 

portions of the calls being discussed that, in fairness, ought to have been considered on Vivint’s 

1

 For many customers, there are multiple complaint calls (often resulting from the customer being 

transferred internally at ADT, or calling more than once). Sometimes, one call may not 

substantively discuss the deceptive nature of Vivint’s sales approach but those issues are then 

discussed in other recordings. 

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questions relating to the portions it sought to highlight. See Fed. R. Evid. 106 (“If a party introduces 

all or part of a writing or recorded statement, an adverse party may require the introduction, at that 

time, of any other part — or any other writing or recorded statement — that in fairness ought to 

be considered at the same time.”). 

The need to consider the entirety of any customer complaint is abundantly clear from 

Vivint’s Motion. In citing the cherry-picked customer complaint recordings, Vivint omits portions 

of the recordings that are relevant to the deceptive sales practice claim. For example: 

Vivint cites Customer Guerra claiming that she simply switched to Vivint for “more stuff 

and less money.” (Vivint Mot. at 5.) But Ms. Guerra also described her actual confusion that she 

thought Vivint was with ADT, which Vivint conveniently leaves out of the transcript cited in its 

motion. (D.E. 114 at Ex. G, 9:15-22) (“It’s true. It’s true. It’s true. I thought it was you guys. I 

mean, because they came -- first came one lady, and she was telling me. And then when I was 

going to sign, I said, ‘I’m very faithful to the people that I have my services. So, no, I won’t change 

services.”) Further, Ms. Guerra stated when the Vivint rep came back again, “I thought that it was 

– I thought it was your company, either ADT or Protection 1. I thought it was the same company.” 

(Id. at 10:25-11:2.) Only after Ms. Guerra went “more deep in the conversation” in the second 

encounter did the rep disclose that Vivint was actually a different company. (Id. at 11:3-10.) Ms. 

Guerra further explained, in pieces of the transcript omitted by Vivint’s motion, that “He didn’t 

say it was Protection 1. He said that they were enhancing my services, getting better things and – 

but I thought it was the same company.” (Id. at 12:1-8.) 

Vivint cites a call from Ms. Martinez claiming that Martinez “does not allege any deceptive 

conduct.” (D.E. 114 at 8.) Yet, again, in the same call Vivint cites Ms. Martinez relayed that the 

Vivint representative knocked on her door, asked for her by name, and said he was offering her 

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new equipment “for free.” (D.E. 114 at Ex. J, 6:22-25.) Specifically, he said, “I see you have 

ADT,” and then “started talking about the doorbell monitor and showing me on his tablet 

everything and did I have it programmed to my – my smart phone. And if I didn’t, he could show 

me” (id. at 11:7-15)—in other words, intimating that the representative was associated with her 

existing ADT system. “Not once did he introduce himself,” (id. at 11:17-18), and Ms. Martinez 

“couldn’t get a word in to shut him down.” (Id. at 11:14-15.) Vivint leaves all of this out in its 

attempt to mischaracterize Ms. Martinez’s complaint as not alleging any deceptive sales conduct. 

For Customer Cox, Vivint contends that “Ms. Cox’s daughter called to complain on her 

behalf and says she did not know what Vivint allegedly said to her mother. She admits not even 

her mother could recall...” (D.E. 114, at 8.) But in the very same transcript Vivint cites, Ms. Cox’s 

daughter relayed that her mother “initially thought it was an upgrade on ADT,” (D.E. 114 at Ex. 

E, 20:21-22), but only later came to understand the representative was with Vivint. (Id. at 2:22-

4:6.) 

Vivint similarly cites Mr. Trawick as someone who supposedly only reported being 

“solicited” by Vivint, as opposed to being deceptively sold; yet Vivint leaves out that Mr. Trawick 

reported in the same call cited by Vivint that the Vivint agent “kind of acted like . . . – like he was 

representing Protection 1.”2 (D.E. 114 at Ex. I, 4:10-13.) 

ADT could go on and on explaining how Vivint has grossly mischaracterized the few 

complaints Vivint attempts to dispute in its motion, but these squabbles about credibility of the 

complaints to ADT underscore that these are credibility issues for the jury to weigh. At bottom, 

Vivint already had its opportunity in discovery to dispute any of the 385+ complaints that ADT 

has thoroughly documented. Having already answered written discovery refusing to do so, and 

2

 ADT acquired Protection1 through a merger effective April 2017. See 

https://www.protection1.com/ceoletter/faqs/. 

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refusing to answer related questions in binding testimony at its 30(b)(6) deposition, Vivint’s 

arguments attempting to dispute a handful of the 385 complaints through selective quotation and 

omission are too little too late. It certainly does not support wholesale exclusion of the evidence, 

most of which Vivint does not challenge. 

II. VIVINT’S REFUSAL TO CURTAIL ITS DECEPTIVE SALES CONDUCT 

DESPITE AGREEING TO DO SO WITH 15 STATE ATTORNEYS GENERAL 

AND THE UNITED STATES DEMONSTRATES THE CONDUCT IS 

INTENTIONAL, A CRITICAL ISSUE IN THE CASE. 

Vivint’s deceptive sales practices have been a cornerstone of its financial growth for 15 

years. In that timeframe, Vivint has agreed to injunctions, consent decrees, assurances of voluntary 

compliance, and/or financial settlements regarding its deceptive sales practices with at least fifteen 

state attorneys general and the United States Department of Justice. Vivint also settled a previous 

civil lawsuit brought by ADT for $10M in 2017. But the hefty, cumulative cost of these regulatory 

consumer protection penalties and litigation settlements did not motivate Vivint to alter its 

deceptive sales model. Rather than change its behavior, Vivint built this into its costs of doing 

business. Indeed, the evidence in this case will show that despite knowing the scope of the problem, 

who the worst offenders were, and paying for the consequences of the behavior, Vivint nonetheless 

protected its most problematic leaders and their teams because the profits still offset the litigation 

and regulatory cost incurred. Unsurprisingly, because Vivint never curtailed the unscrupulous 

behavior of these highly productive national sales teams, the conduct of Vivint’s salesforce became 

more egregious over time. This is strong evidence of intent and the scope and duration of this 

misconduct, which supports ADT’s Lanham Act and punitive damages claims. 

A. The Agency Materials and Lawsuits Show What Vivint Knew About the Scope of Its 

Deceptive Sales Problem and How Little It Did to Stop the Behavior. 

ADT intends to use documents from Better Business Bureau (“BBB”) Complaints, lawsuits 

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brought by state and federal agencies, and other investigations (“Agency Materials and Lawsuits”) 

as evidence that Vivint had notice and knowledge of the fact that its sales representatives were 

engaging in deceptive sales practices. As explained in Section I(A)(3), it is permissible to use these 

records, to the extent they invoke hearsay considerations at all, to prove notice rather than to prove 

the truth of the matter asserted. See generally Lee, 427 F.3d at 896–97. 

In Vivint I, ADT sought to use BBB complaints to prove Vivint’s notice and knowledge of 

customer complaints unrelated to ADT from across the country. The Honorable Donald 

Middlebrooks held that “[b]ecause ADT may offer the BBB complaints for purposes other than to 

prove the truth of the complaints, it is inappropriate to exclude them as hearsay at this time.” (See 

Ex. D.) There is no reason to depart from Judge Middlebrooks’ prior ruling with respect to this 

evidence. 

B. Vivint’s Statements Made in the Agency Materials and Lawsuits Are Party 

Admissions. 

The Agency Materials and Lawsuits are replete with instances where Vivint made 

statements regarding complaints against it or investigations into Vivint’s sales practices, with 

which ADT seeks to cross-examine Vivint’s company witnesses. The Federal Rules of Evidence 

are clear that statements made by an opposing party “made in an individual or representative 

capacity” are not hearsay. Fed. R. Evid. 801(d)(2). 

 Just as ADT seeks to do here, in Vivint I, ADT sought to admit Vivint's Chief Compliance 

Officer’s responses to many of the customer complaints made to the BBB on behalf of Vivint. The 

Honorable Donald Middlebrooks held that “Mr. Wilcox’s statements made on behalf of Vivint 

qualify as statements made by an opposing party and thus are excepted from the rule against 

hearsay pursuant to Rule 801(d)(2) of the Federal Rules of Evidence.” (See Ex. D.) Similarly, any 

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statements made by or on behalf of Vivint in the Agency Materials and Lawsuits are admissible 

as party admissions and are not subject to the rule against hearsay. 

C. The Agency Materials and Lawsuits Are Admissible “Other Bad Act” Evidence 

Under Fed. R. Evid. 404(b). 

ADT does not intend to use any “character” evidence for any prohibited “action in 

conformity therewith” purpose. (See D.E. 114 at 18.) But Vivint’s motion ignores that the Federal 

Rules of Evidence expressly permit “other bad act” evidence for other purposes. Specifically, FRE 

404(b)(2) clearly permits ADT to use the Agency Materials and Lawsuits to establish Vivint’s 

“motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of 

accident.” Fed. R. Evid. 404(b)(2). Vivint will argue at trial that all companies have a few bad 

apples, or that customers occasionally become “confused” due to their own fault or 

misunderstanding. FRE 404(b)(2) permits ADT to use the Agency Materials and Lawsuits to show 

Vivint’s pervasive misconduct in the market to prove that Vivint’s misconduct is not an accident, 

but, instead, is a longstanding pattern of misconduct that spans many years, sales representatives, 

and geographic areas. See Andresen v. Maryland, 427 U.S. 463, 483 (1976) (“proof of similar acts

is admissible to show intent or the absence of mistake”); Glados, Inc. v. Reliance Ins. Co., 888

F.2d 1309, 1311 (11th Cir. 1987); Carson v. Polley, 689 F.2d 562, 573 (5th Cir. 1982) (“intent, of 

course, may be shown through extrinsic proof of prior acts”). 

D. The Agency Materials and Lawsuits are Highly Probative, and Rule 403 

Considerations Do Not Support Exclusion. 

Vivint, citing FRE 403, argues that the Agency Materials and Lawsuits should be excluded 

because they are unduly prejudicial, to wit “Vivint would be unfairly prejudiced by ADT 

portraying it as a ‘bad’ company based on the mere receipt of unsubstantiated complaints, and/or 

its participation in litigation.” (D.E. 114 at 18-19.) Vivint’s argument ignores controlling Eleventh 

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Circuit precedent that holds that Rule 403’s exclusion is an “exceptional remedy” that is “invoked 

sparingly.” United States v. Williams, 816 F.2d 1527, 1532 (11th Cir. 1987) (“This court has 

invariably held that determining prejudice to outweigh probativeness under rule 403 is an 

exceptional remedy.”). 

Williams illustrates just how high that bar is set—Rule 403 requires exclusion of relevant 

proof of prior acts only when they “are of such a heinous nature that they are likely to sway the 

jury irrevocably to a decision of guilt,” and it found that evidence of defendant’s rapes of other 

victims did not rise to such a “heinous” level as to be excludable under Rule 403. Id. Vivint has 

defrauded customers throughout the United State for many years. Innumerable attorneys general 

and other law enforcement agencies from around the country have investigated Vivint for these 

frauds. While Vivint’s pervasive pattern of defrauding ADT’s customers fairly makes Vivint look 

bad—and ADT will ask the jury to award punitive damages based upon it—the evidence 

supporting this proposition does not risk the same level of unfair prejudice as something as heinous 

as violent sexual assault. Williams, supra.

The two cases Vivint cites to support its Rule 403 argument are readily distinguishable. 

First, Vivint cites A.T.O. Golden Construction Corp. v. Allied World Insurance Company, 2018 

WL 5886663, at *8-9 (S.D. Fla. Nov. 9, 2018). That case is a breach of contract action with no tort 

claims asserted, therefore the admissibility of evidence to prove willful and wanton conduct for 

punitive damages was irrelevant since punitive damages are not available in a breach of contract 

case. See Perdue Farms Inc. v. Hook, 777 So. 2d 1047, 1053 (Fla. Dist. Ct. App. 2001). Second, 

Vivint cites Bui v. Minority Mobile Sys., Inc., No. 15-21317-CIV, 2016 WL 6518804, at *1 (S.D. 

Fla. Jan. 28, 2016). But, as set forth above, even that court explained that “[p]rior acts of a party, 

such as previous lawsuits, are generally not permitted to prove the character of a party on a 

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particular occasion, though they can be used to prove motive, intent, preparation, plan, or 

knowledge.” Bui, No. 15-21317-CIV, 2016 WL 6518804, at *1 (emphasis added). The Court’s 

order in that case provided no analysis as to how the plaintiffs in that case planned to use the 

evidence of prior lawsuits. ADT, on the other hand, has been clear that it plans to use the Agency 

Materials and Lawsuits as evidence of Vivint’s motive, intent, preparation, plan, and knowledge 

regarding deceptive sales practices. 

Vivint’s 403 arguments are also overbroad. Vivint has not asked the Court to exclude 

specific documents or portions of documents from the trial. Instead, it has moved in limine to 

exclude entire categories of evidence based solely on their origins, with no showing whatsoever 

as to how any particular document might cause Vivint undue prejudice, or otherwise fall within 

FRE 403’s ambit. As the Court has noted, unless documents are “clearly inadmissible on all 

potential grounds,” evidentiary rulings on them “should be deferred until trial so that questions of 

foundation, relevancy, and potential prejudice may be resolved in proper context.” Gonzalez, 718 

F. Supp. 2d at 1345. Because Vivint has not asked the Court to exclude particular documents, it is 

impossible to say in the abstract whether any document found in any investigation, complaint, or 

lawsuit against Vivint, might be so “clearly inadmissible on all potential grounds” as to warrant 

an order in limine excluding them all regardless of content. 

III.VIVINT’S OWN STATEMENTS FROM THE LANHAM ACT LAWSUITS IT 

PROSECUTED AGAINST OTHER COMPETITORS ARE ADMISSIBLE, 

PROBATIVE, AND RELEVANT EVIDENCE. 

For many years, in sworn testimony in lawsuits where Vivint was the plaintiff suing 

competitors for the same deceptive door-to-door practices at issue in this case, Vivint has made 

numerous party admissions that are now damning to its case with the shoe now being on the other 

foot. Vivint argues that documents and other evidence from these lawsuits are inadmissible under

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FRE 802, 404(b), and 403 and that “ADT improperly intends to paint Vivint as a litigious character 

that lacks validity in its current defenses.” (D.E. 114 at 19-20.) However, ADT does not intend to 

paint Vivint as litigious and has a number of admissible, relevant uses for the evidence from the 

lawsuits Vivint has filed against competitors. Instead, ADT intends to use Vivint’s 801(d)(2) party 

admissions for many relevant purposes. 

For example, Vivint’s in-house counsel previously swore under oath what Vivint itself 

considers to be a “slam” and how damaging slams are: 

(Vivint Mot. for Prelim. Inj., Vivint, Inc. v. Elite Security, attached hereto as Ex. L, at PDF p. 23.) 

Vivint’s records in this case are littered with references to the fact that Vivint sales representatives 

“slammed” ADT customers. Admissions like the above from Vivint’s in-house counsel’s sworn 

affidavit refute Vivint’s newfound litigation theory in this case that a “slam” sometimes results 

from legitimate competitive business conduct. In this case, because Vivint’s own documents will 

show that Vivint “slammed” hundreds or thousands of ADT customers to switch them over, Vivint 

now wants to re-define “slam” as something more ambiguous. 

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Other examples abound. When Vivint has sued competitors for deceptive sales practices, 

it has lamented just how damaging this very same deceptive door-to-door conduct is to Vivint’s 

brand, goodwill, and reputation. That party admission should also hold true when held up to a 

mirror, and it is Vivint’s own deceptive conduct that harms others. Relatedly, Vivint has repeatedly 

advocated (and its internal documents take the same position) that inbound customer complaints 

about deceptive sales practices are underreported by a ratio of at least twenty-to-one, not even 

considering the number of individuals who are not aware of the conduct because they “fell” for 

the deceptive practice. (See, e.g., Vivint BBB Complaint Analysis, VIVINT113114-175, at 31, 

attached hereto as Ex. K.) That is, for every deceived customer who complains, there are at least 

20, likely many more, who do not (for a variety of reasons). (Id.) Vivint even advocated that these 

marketing principles are so well known that that they are facts capable of judicial notice under 

Fed. R. Evid. 201. (See Vivint Mot. for Prelim. Inj., Vivint, Inc. v. Elite Security, attached hereto 

as Ex. L, at 4 n.1. (emphasis added).) Vivint’s admissions that complaints of deceptive sales 

practices in this industry are so dramatically underreported are highly probative of liability and 

damages issues in this case, including for illustrating to the jury why Vivint’s conduct has persisted 

in spite of numerous governmental and private lawsuits directed at stopping the conduct. 

Finally, as to Vivint’s FRE 403 argument, Vivint has failed to specifically articulate any 

unfair prejudice it would suffer from the admission of this evidence. These issues are critical to a 

jury’s consideration of this case; thus, while they may be harmful to Vivint’s defense, there is 

nothing unfair about using Vivint’s prior statements against it. Vivint’s admissions in testimony 

and documents are clear, plainly relevant, and not substantially outweighed by any FRE 403 

concerns. 

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IV.ADT’S DAMAGES EVIDENCE IS ADMISSIBLE AND ALL DAMAGES WERE 

TIMELY DISCLOSED. 

Vivint also rehashes the arguments from the two Daubert motions it has filed in this case 

in an attempt to attack ADT’s theory of damages. ADT has fully briefed these issues in its 

responses to the Daubert Motion to Exclude Testimony of Dr. Russell S. Winer and the Daubert

Motion to Exclude Testimony of Dr. Eric Matolo. 

Additionally, Vivint claims that some unspecified aspect of ADT’s damages claim should 

be excluded because it was not timely disclosed. (D.E. 114 at 24.) This allegation makes no 

sense—ADT has disclosed its damages computations numerous times throughout discovery. First, 

on December 4, 2020, ADT served its initial disclosures with a detailed description of how it 

planned to calculate its damages, noting that the exact figures would be dependent upon the 

outcome of discovery. (See ADT’s Initial Disclosures at 6-8, attached hereto as Ex. M.) Second, 

on July 13, 2022, ADT served a second supplemental disclosure providing even more granular 

detail regarding ADT’s damage calculation model, including a mathematical formula with an 

example provided, based on discovery developed in the case. (See ADT’s Second Supplemental 

Initial Disclosures at 7-9, attached hereto as Ex. N.) Third, on November 18, 2022, ADT put up 

its finance director, Stanley Scott, for a 30(b)(6) deposition on a number of topics, including “the 

identification of the disclosure of those damages and the computation and factual basis thereof,” 

as a part of which ADT even supplied a demonstrative exhibit detailing how the formula detailed 

in ADT’s Second Supplemental Disclosure plays out. (See Defs.’ Second Am. Notice of Rule 

30(b)(6) Depo. of Pltfs. at Topic 5, attached hereto as Ex. O.) During Mr. Scott’s deposition, which 

lasted more than four hours, Counsel for Vivint had a full opportunity to cross-examine Mr. Scott 

on ADT’s damages calculation, including specifically the valuation of ADT’s lost account 

damages. And finally, on December 29, 2022, prior to the close of discovery, ADT yet again 

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supplemented its damages disclosures to provide updated numbers of complaints since ADT had 

received several more complaints about Vivint’s practices since ADT served its prior disclosures. 

(See ADT’s Third Supplemental Initial Disclosures, attached hereto as Ex. P.) ADT’s claims at 

trial will follow the disclosures ADT has extensively made throughout the discovery period 

regarding its damages. 

CONCLUSION 

For the foregoing reasons, Vivint’s Motion in Limine should be denied. 

Dated: January 24, 2023 Respectfully submitted, 

SHOOK, HARDY & BACON L.L.P. 

s/ Jennifer A. McLoone

Jennifer A. McLoone (FBN 29234) 

jmcloone@shb.com 

201 S. Biscayne Blvd., Suite 3200 

Miami, Florida 33131 

T: (305) 358-5171 

F: (305) 358-7470 

-ands/ Charles C. Eblen

Charles C. Eblen (admitted pro hac vice) 

ceblen@shb.com 

2555 Grand Blvd. 

Kansas City, Missouri 64108 

T: (816) 474-6550 

F: (816) 421-5547 

-ands/ Eric J. Hobbs

Eric J. Hobbs (admitted pro hac vice) 

ehobbs@shb.com 

Case 1:20-cv-23391-JG Document 124 Entered on FLSD Docket 01/24/2023 Page 25 of 26
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Daniel E. Rohner (admitted pro hac vice) 

drohner@shb.com

1660 17th Street, Suite 450 

Denver, Colorado 80202 

T: (303) 285-5300 | F: (303) 285-5301 

Counsel for Plaintiffs/Counterclaim 

Defendants ADT LLC and The ADT Security 

Corporation

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